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All Reporters → cal-app-lexis → Volume 1976

Opinions in cal-app-lexis Volume 1976

Opinion Home Savings and Loan Association, defendant in six class actions coordinated for trial pursuant to Code of Civil Procedure section 404, seeks to prohibit the superior court from adjudicating issues by means of summary judgment and from granting preliminary injunctive relief prior to certification and notification of the six classes. 1 Five class actions, Deutsc...
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*234 Opinion This is an appeal from an order sustaining a demurrer without leave to amend the second amended complaint for wrongful death filed by parents of the decedent. The original complaint alleged that the death of decedent, a high school student, occurred while he was participating with his R.O.T.C. unit in a field trip within California which was organized by and under the supervisi...
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Opinion J.— The case at bench reaches us on petition for writ of mandate. It raises the issue of the right of a wife who during marriage used her maiden name to petition for a dissolution of marriage in that name rather than the surname of her husband. We conclude that the wife has the right so to file her petition. On April 14, 1975, wife, appearing in propria persona, filed her pe...
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Opinion This is an action on four continuing guaranties in favor of plaintiff Union Bank. Two of the guaranties were executed by defendants A1 Ross and Sheila Ross, and the remaining two guaranties were executed by defendants Irving Holender and Miriam Holender. The obligation giving rise to the claims were represented by a promissory note executed by Carnaby Street Fish & Chips, Inc. for...
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Opinion Plaintiff, respondent and cross-appellant William C. Miller (hereinafter respondent) commenced this action against defendant, appellant and cross-respondent National American Life Insurance Company of California (hereinafter appellant) in the Superior Court of the City and County of San Francisco. The complaint set forth two causes of action: breach of a contract of disability ins...
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Opinion Defendant State Farm Mutual Automobile Insurance Company appeals the judgment and order denying its motion for judgment notwithstanding the verdict after the jury assessed $25,000 compensatory damages and $75,000 punitive damages in favor of plaintiff Nanci Beck on a cause of action for breach of an insurer’s obligation to act in good faith and deal fairly with its insured. B...
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Opinion The husband commenced this proceeding on January 10, 1972, with a petition for dissolution of his 31-year marriage. Husband moved for a separate and early trial of the dissolution issue, stating that reconciliation was not possible, that the dissolution hearing would be brief, and that the other issues (ascertainment and division of *360 community property, spousal su...
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*387 Opinion Biyan Elwood Langdon was convicted by a juiy in the Madera-Sierra Judicial District of misdemeanor drunk driving in violation of Vehicle Code section 23102, subdivision (a). He challenged the composition of the jury panel on the ground that it was drawn only from residents of the former Madera Judicial District, which challenge was disallowed by the justice court jud...
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Opinion Defendant appeals from a judgment in favor of plaintiff (hereinafter “Union Bank”) in an action upon a promissory note. The issues presented are whether the trial court erred in finding that said promissory note was not intended by the parties to be secured by a first deed of trust executed by defendant; whether the cause of action to recover upon said note was barred by the antideficienc...
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Opinion These proceedings have been consolidated. They involve the same discovery order made in a criminal action. We issued an alternative writ of mandate in each proceeding for the purpose of determining, the specific attacks by the respective petitioners upon certain portions of the trial court’s order for discovery. *420Petitioner Mario J. Craig, who is charged with a violation of Penal Code s...
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*438 Opinion Defendant, having secured a certificate of probable cause to do so (Pen. Code, § 1237.5, Cal. Rules of Court, rule 31(d)), has appealed from a judgment of conviction under which he was committed to the California Youth Authority (Welf. & Inst. Code, § 1731.5) following his plea of guilty to murder in violation of section 187 of the Penal Code, fixed as of the second ...
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*460 Opinion This is an appeal from a judgment granting plaintiff contractor and its surety relief from an erroneous bid and forfeiture of a bid bond. In 1972 the City of King called for bids for airport improvements. When the bids were opened on June 26, 1972, plaintiff’s bid of $30,517.60 was approximately $7,000 lower than the next bid. After a discussion with one of the ...
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Opinion —This appeal concerns the validity of certain “in lieu fees” levied upon plaintiff Norsco Enterprises or its affiliate Norsco, Inc. (hereafter “Norsco”) by the City of Fremont (hereafter sometimes “City”), under the ostensible authority of Business and Professions Code *492 section 11546 (hereafter “section 11546”). 1 That statute provided, subject to certa...
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*503 Opinion Upon denial of his motion (under Pen. Code, § 1538.5) to suppress certain evidence essential to his prosecution for possession of a sawed-off shotgun (see Pen. Code, § 12020), and unlawful possession of a concealable firearm by a felon (see Pen. Code, § 12021), defendant Turner pleaded guilty to the latter charge. His appeal is “from the plea of guilty” which we treat as an appea...
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*511Opinion Defendant Richard G. Rodgers and his brother, Joseph, were charged with conspiracy to possess heroin for sale (count I) and with possession for sale (count II). After a court trial, defendant was convicted on count II, possession for sale, and his brother was acquitted on both counts. Defendant was placed on probation. At defendant’s preliminary hearing, certain evidence found in his h...
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Opinion Plaintiff, Charles Morgenroth, appeals from judgments of nonsuit entered at the close of the presentation of his evidence of liability in an action for malpractice against his doctors, A. Selzer, J. Sakai,-W. Kerth and J. Kelly, and the Pacific Medical Center. 1 He contends that pursuant to the recently established rule of Cobbs v. Grant, 8 Cal.3d ...
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*549Opinion I This is an appeal from a portion of an interlocutory decree of dissolution, which portion awards $10,000 each to the trial counsel for the appellants in their dissolution proceeding. Although the notice of appeal is executed, in propria persona, by both Gloria and Morton, no appearance on Morton’s behalf has been made in this court. However, since a reversal of the portion of the awa...
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*563 Opinion County appeals from a judgment rejecting a claim of public rights arising from an alleged implied dedication of the beach areas and access to those areas in and around a beach in Orange County referred to as Dana Strand. Dana Strand is a 2,000-foot portion of a long, narrow, sandy beach, sheltered by steep cliffs, which lies between Dana Point and Laguna Beach. Isolated and som...
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*571 Opinion This case presents a question of first impression: Does Penal Code section 647, subdivision (b), which defines “disorderly conduct” as including “[e]very person . . . [w]ho solicits . . . any act of prostitution,” apply to a “customer” of a prostitute, or is the statute limited in its application to solicitation by the prostitute? Statement of the Case Appellant was arrested ...
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Opinion Wells National Services Corporation, the taxpayer, appeals from an adverse judgment in its action to recover taxes paid under protest, contending that pursuant to the written agreements for providing television rental services to patients, its interest in the premises owned by the County Hospital District was not a taxable possessory interest, as defined by Revenue and Taxation Code sec...
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Opinion In her action against appellants for declaratory and injunctive relief, respondent Shelley Mandel took a judgment (“Judgment And Writ Of Mandate”) which enjoins the Governor from *602 ordering the closure of State offices on Good Friday between the hours of noon and 3 p.m., and from granting State employees paid time off during the three-hour period; enjoins the Contr...
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Opinion This appeal is taken from a judgment in an eminent domain action brought by respondent, the City of Los Angeles. *628 The action was initiated for the purpose of condemning 80 acres of land in the Palmdale area for airport purposes. The property was owned by appellants, Dr. and Mrs. Lowensohn, who were awarded $440,000 by the jury as compensation for their land. Appel...
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Opinion In a nonjury trial defendant Sperl, who was the Marshal for Los Angeles County, was convicted in count I of violating Penal Code section 424, subdivision 3, in that he had knowingly kept false accounts relating to the receipt, etc., of public moneys (Legislative Advocates transaction); in count III of violating section 424, subdivision 1, in that he misappropriated public moneys for the...
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Opinion Pursuant to respondent Ayala’s petition predicated upon undisputed facts, the superior court mandated California Unemployment Insurance Appeals Board (Board) (Unemp. Ins. Code, §§ 401-411) 1 and Department of Employment (§ 301) (Department) to complete *678 payments to him of insurance benefits in the amount of $1,898 under section 140.5 in accordance with an award which the Departm...
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Opinion Pursuant to an interlocutory judgment (judgment) dissolving a 20-year marriage entered in favor of Mary Robinson against her husband, Tom, Mary was awarded custody of two minor children aged at the time of judgment respectively 12 and 14, with a weekly support allowance for each of $12.50; spousal support was reserved and as her share of the community property a 50 percent division of a...
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Opinion Plaintiff, Gould, Inc., a corporation, filed a complaint against defendant, Health Sciences, Inc., a corporation, alleging breaches of warranties, fraud and deceit, and negligent misrepresentation. The dispute arose as the result of alleged defects in switches manufactured by defendant in Massachusetts and delivered to plaintiff in California in 1973. Defendant moved to quash serv...
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Opinion In case No. A314154, defendant, together, with three other persons, 1 was charged (count I) with offering to sell heroin, in violation of section 11352 of the Health and Safety Code; the same four persons were charged (count II) with attempted grand theft, in violation of sections 487 and 664 of the Penal Code; the same four were also charged (counts III through VI) with using heroin,...
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Opinion Plaintiffs, Care Construction, Inc., et al. (hereinafter referred to as “Care”), were engaged in the business of constructing convalescent hospitals. Care, once construction was completed, would then lease or sell the convalescent hospitals to operators. Among the operators with whom Care negotiated to lease its convalescent hospitals was defendant Century Convalescent Centers, In...
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*710 Opinion This case involves the interpretation of liability insurance policies to determine the coverage afforded by them. The facts are stipulated and can be stated briefly. Klink Citrus Association (hereinafter “Klink”) owned a 1943 Burma jeep which had been converted into an agricultural chemical spray rig. It was not licensed, was used for spraying citrus groves, and...
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Opinion Appellants Karl K. Lowe and Contract Design Associates, Ltd., as assignees of an applicant for a real estate loan from respondent insurance company, have each appealed from separate judgments, entered after a consolidated trial by the court, which denied their claim that their assignor was entitled to the return of $94,000 deposited with the company in connection with its commitme...
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*747 Opinion Plaintiff appeals from the trial court’s judgment denying injunctive and/or declaratory relief. On March 13, 1974, the State Water Resources Control Board (“Board”) initiated this action to enjoin certain vineyardists in the Napa Valley from drawing water directly from the Napa River to their vineyards for frost protection. The complaint charges that the direct diversion of wat...
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Opinion On appeal from an order revoking probation, the issue is whether the defendant’s probation was revoked without a proper hearing and determination of his mental competence pursuant to sections 1367, 1368, and 1369 of the Penal Code. Defendant contends there was substantial evidence of doubt as to his mental competence and, therefore, the trial court erred in denying his right to a jury t...
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Opinion The City of Hayward and its city manager appeal from a judgment declaring that an “agency shop” agreement between the city and respondent United Public Employees, Local 390, is lawful. Respondent (hereinafter “the Union”) is a labor organization affiliated with the Service Employees International Union, AFL-CIO; certain. employees of the city are members of the Union. On July 11, 1972...
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Opinion Dr. Joe David Toney was a black professor of chemistry at Fresno State College. 1 Dr. Phillip Walker was the acting dean of the school of arts and sciences at the same institution. Toney sued Walker and the State of California (hereinafter “State”) in two causes of action for defamation and intentional infliction of emotional distress. There were also fictitiously named defendants who...
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Opinion This is an action for declaratory relief in the form of an election contest. The action was commenced in the Contra Costa County Superior Court by Charles Philippart (hereinafter contestant) who was an unsuccessful candidate for election to the office of Trustee of Hotchkiss Tract Reclamation District 799 at the regular election on November 6, 1973. His principal contention is tha...
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Opinion Esther Villa de Mendoza individually and as guardian ad litem of her five living children, seeks review of a decision and order of the Workers’ Compensation Appeals Board (Board) with regard to the claims presented as a result of the death of three children, brother and sisters of the minor applicants. The claim for the death of her husband killed at the same time is not a part of this ...
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Opinion Inman R. Johnson (Johnson) filed a complaint against Canadian Transport Company, Ltd., a corporation (Canadian), 1 Towmotor Corporation, a corporation (Towmotor), Caterpillar Tractor Company, a corporation (Caterpillar), and the Weatherhead Company, a corporation (Weatherhead). The first cause of action against the defen *830 dants and “each of them” allege...
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*843Opinion This appeal is from a judgment declaring Deanna, a little girl, born December 22, 1968, free from the custody and control of her natural mother, objector and appellant Margaret Joyce Brown. Petitioners and respondents Bruce and Gloria Brownfield are the child’s foster parents who have had the child under their custodial care since August 28, 1969. Their petition alleged abandonment by ...
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Opinion Defendant appeals from a judgment of conviction entered in a nonjury trial for pandering in violation of Penal Code section 266i, which statute condemns among other things, the inducing, persuading or encouraging a female to become a prostitute. Carlene Moriarty, a fulltime regularly employed policewoman assigned to the vice squad of the Los Angeles Police Department, undertook to inv...
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Opinion Following trial of this action against the County of Los Angeles for wrongful death of their son, judgment on the verdict of the jury was entered in favor of Martin and Wreath Kolar in the sum of $25,000 plus costs. Thereafter an order was made granting defendant’s motion for a new trial. Plaintiffs appeal from that order and defendant cross-appeals from the judgment. 1 ...
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Opinion Appellant Lúcela C. Lowry, the former Lúcela Gregg, is the sole income beneficiary of a marital trust created under the will of *884her deceased husband, John D. Gregg. Respondent Title Insurance and Trust Company, the trustee of the marital trust, petitioned the probate court for an order instructing it to allocate payments received under the Bartolo contract, the major asset of the marit...
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Opinion —Plaintiff appeals from an order of dismissal of his first amended complaint for declaratory relief and breach of contract following the sustaining of a demurrer thereto without leave to amend. (Code Civ. Proc., § 581, subd. 3.) The appeal lies. (Code Civ. Proc., §§ 581d, 904.1, subd. (a).) *897 The amended complaint alleges that plaintiff was the owner of “Werner Sy...
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Opinion The “Statement of the Case and the Facts” as set forth in appellant’s brief is adopted for the purposes of this opinion. This is an appeal from a judgment denying a peremptory writ of mandate to compel respondent, Department of Motor Vehicles, to annul its order suspending appellant Richard Keathing Martin’s driver’s license. Appellant was arrested for alleged drunk driving. On or about Ma...
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Opinion Defendant Lawrence Joiner was charged in a two-count information with possession of marijuana for purposes of sale (Health & Saf. Code, § 11359), and assault with a deadly weapon upon a police officer (Pen. Code, § 245, subd.(b)). A jury found defendant guilty as charged on the marijuana' count and guilty of a violation of section 245, subdivision (a), a lesser but necessarily inc...
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Opinion Pursuant to section 1238 of the Penal Code, the People appeal from an order of the Sacramento County Superior Court setting aside four counts of a five-count grand jury indictment on the alternative grounds that either (1) the district"attorney failed to inform the grand jury of alibi witnesses whose statements tended to negate the charges against the defendant, or (2) if these witnesse...
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Opinion On these proceedings in prohibition we inquire into the jurisdiction of the superior court to fry petitioner Scott Emerson Owen on an indictment of the Santa Cruz County Grand Jury. Evidence taken by the grand jury revealed the following. Each of three boys, of the respective ages of 16, 15 and 12 years, testified that over a *931 period of two or three years Owe...
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Opinion On April 30, 1967, George Renner (decedent) died intestate and on September 15, 1969, an order settling final account in P-524093 (Renner estate) recited “. . . the heirs-at-law of said deceased are unknown ...” and provided, “ . . . property . . . whether described herein or not, ... is distributed to the State of California . . . .” (Escheat order.) On November 6, 1974, pursuant to ...
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*954 Opinion This is an appeal by petitioner Carolyn A. McDowell from an order re child visitation and support made in a proceeding initiated under the revised Uniform Reciprocal Enforcement of Support Act of 1968 (Code Civ. Proc., § 1650 et seq.) Said order dealt with the right of respondent Joseph D. Orsini, a California resident, to reasonable visitation with the minor child o...
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Opinion This is an appeal and cross-appeal from an order of the probate court directing distribution of income of a testamentary charitable trust.1 Bella Mabury died October 16, 1964. Her will, dated September 29, 1961 (including two subsequent codicils), was admitted to probate on November 9, 1964. The order for preliminary distribution, which established her testamentary trust, was entered on S...
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Opinion Petitioner, a corporate employer, seeks prohibition to prevent respondent court from enforcing its order issued November 5, 1975, which granted real party’s motion to compel production of an accident report prepared by an employee of petitioner. We may properly entertain a petition for extraordinary relief when, as here, the petitioning party asserts that to compel production would viol...
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Opinion Introduction Plaintiff Faix, Ltd. (hereinafter plaintiff or Faix) appeals from the granting of a motion for judgment on the pleadings in three consolidated tax actions made by defendant County of Los Angeles (hereinafter defendant or County). The dispute involves taxes pertaining. to the valuation assessed on certain Upper San Gabriel River Basin water rights. Background...
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Opinion The Case By information, defendant James Robert Ruscoe (hereinafter defendant or Ruscoe) was charged with extortion in violation of Penal Code section 518 (count I) and with grand theft in violation of Penal Code section 487, subdivision 1 (count II). An amendment to the information *1008 alleged three prior felony convictions (grand theft—July 1965; grand theft—Dec. 1965; and inter...
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Opinion In this habeas corpus proceeding we are called upon to decide whether a commissioner was properly appointed to hear an order to show cause proceeding, and if so whether he exceeded his jurisdiction in ruling on the contempt which resulted. Petitioner, Sheldon C. Plotkin, was retained as an expert witness by attorneys for the plaintiff in a cause of action against Datsun Motor Company....
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Opinion Ronald Quintana joined the California Highway Patrol in March of 1965. In February of 1966, while operating a Highway Patrol vehicle, he was involved in an accident and suffered physical injuries. He was off duty for a period of three months, assigned to limited duty for seven to eight months and thereafter returned to full duty, the first two months of which he served on regular ...
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Opinion Plaintiffs, Ruben Garza, Marie Garza and Michael Anthony Garza, the minor children of coplaintiffs, Ruben Garza and Alice J. Garza, appeal by their guardian ad litem, their just-mentioned mother, from a minute order striking from the first amended complaint 1 their causes of action in which each child alleges that by reason of the negligence of defendants Stephen Kantor...
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Opinion In this opinion we dispose of habeas corpus petitions of two state prison inmates who challenge the parole standards presently pursued by the California Adult Authority. These standards were announced in Directive No. 75/20, issued by the Chairman of the Adult Authority on April 15, 1975. A brief background description will aid in recognition of the issues. The Indeterminate ...
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Opinion Simmie Edward Barnett appeals from a judgment entered after a jury trial convicting him of rape (Pen. Code § 261, subd. 3), oral copulation accompanied by force (Pen. Code § 288a), acting in concert to commit an act of oral copulation (Pen. Code § 288b), and assault (Pen. Code § 240). *1049 During April 1974 Dorine D., her husband and their baby shared with . and rented a house in O...
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54 Cal.App.3d 1054 (1976) 126 Cal. Rptr. 830 CHARLES L. THOMAS, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. 37638. Court of Appeals of California, First District, Division Two. January 30, 1976. *1055 COUNSEL Sheldon Portman, Public Defender, John L. Williams, Philip H. Pennypacker and Frank D. Berry, Jr., Deputy Public Defen...
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Opinion On January 29, 1974, an indictment was filed in the Santa Clara County Superior Court charging defendants Beatrice Navarette and Joe Peraza with selling heroin and offering to sell marijuana, in violation of sections 11352 and 11360 of the Health and Safety Code. Both defendants moved to quash the indictment on the ground of discriminatory grand jury selection. A hearing on the motion...
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Opinion Petitioners Meta and Richard Katzoff seek review of an order of the San Francisco Superior Court allowing the Department of Public Social Services of the City and County of San Francisco to remove two-year-old Dimitri Wallace from their home, where they have been caring for him as a foster child. Dimitri was born to Diane and Howard Wallace on December 26, 1973. Shortly after...
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Opinion Lynette G. appeals from an order of the Juvenile Court, which order found that she is a person described by Welfare and Institutions Code section 602 because she committed a robbery (a violation of Pen. Code, § 211). She was found to be a ward of the court and placed on probation in her father’s home. Miss G. contends that: (1) she was illegally detained and transported to the scene of the...
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*1106 Opinion —There is no dispute as to the facts. On January 15, 1974, Sinai Temple (Sinai) filed a complaint for recovery of expenses for funeral services and related matters performed by it in connection with the burial of one Martin Kaplan. 1 The defendants were Gloria Kaplan, 2 the administratrix of Martin’s estate, and Morris Kaplan, the father of the...
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Opinion Spousal support modification proceeding. Petitioner Betty Jane Wright appeals from trial court orders granting the petition of respondent Robert John Wright to reduce his spousal support obligations and denying Betty’s motion to strike that petition. Facts The parties were married in 1942 and separated permanently in 1971. In July 1971 they stipulated to a division of co...
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*1124 Opinion Motion to dismiss a pending appeal. Respondent Attorney General states the problem concisely; “Appellants take this appeal from the trial court’s judgment in their favor.” Background Penal Code sections 313 through 313.5 make criminal the distribution of certain “harmful” materials to minors. The definition of “harmful matter” in section 313 1 is generally that set forth...
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Opinion Appellants, Ernest Cain and Floella Cain, are husband and wife and the operators of a licensed foster home for minor children. Appellants appeal from a judgment of the Superior Court of Tulare County denying their petition for writ of mandate regarding their efforts to adopt the small child, Lisa H.; they sought to compel the Adoption Agency of Tulare County, hereafter referred to as re...
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55 Cal. App. 3d 1 (1976) 127 Cal. Rptr. 493 A. ESPARZA, Plaintiff and Respondent, v. MICHAEL RISLEY SPECHT, Defendant, Cross-complainant and Appellant; COLUMBUS MUTUAL LIFE INSURANCE COMPANY et al., Cross-defendants and Respondents. Docket No. 14075. Court of Appeals of California, Fourth District, Division One. January 20, 1976. *3 COUNSEL Luce, Forward, Hamilton & Scripps, C. Douglas Alford...
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Opinion Dynair Electronics, Inc. and Dyna-Cable, Inc. appeal a two-count judgment—each count involving different legal issues and different parties—following a trial by the court. I In April 1971, Frank Castro, Bob Richardson, Donn Maurer and Michael Grupp formed a general partnership, Video Cable Service (VCSG), pursuant to an oral agreement. VCSG engaged in the business of con...
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Opinion Defendant Ralph W. Isitt, plead guilty to kidnaping for robbery with bodily harm (Pen. Code, § 209),1 robbery in the first degree *27(§§ 211, 211a) and assault to rob (§ 220). He was charged with and admitted being armed with (§§ 3024 and 12022) and having used (§ 12022.5) a firearm in the commission of each offense. He was sentenced to the state prison for each offense for the terms presc...
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55 Cal. App. 3d 35 (1976) 127 Cal. Rptr. 200 ALVIN M. YOUNG, Plaintiff and Appellant, v. BERRY EQUIPMENT RENTALS, INCORPORATED, Defendant and Respondent. Docket No. 2493. Court of Appeals of California, Fifth District. February 3, 1976. *37 COUNSEL Kane, Canelo & Walker and Regis J. Amann for Plaintiff and Appellant. Cardozo, Nickerson & Martelli and Paul L. Martelli for Defendant and Res...
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Opinion The State of California imposes a sales tax on the purchase of merchandise by means of trading stamps, coupons, and the like. Beginning in 1961, Sperry and Hutchinson Company (S&H) collected sales tax reimbursements from stamp redeemers for merchandise obtained with its S&H Green Stamps on a valuation of $3 per book of 1,200 stamps, and it paid sales tax to the state on the basis of the s...
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Opinion This appeal presents the perplexing question whether liability for failure to warn of dangerous properties of a product is measured by the doctrine of strict liability in its generally understood sense or, alternatively, by traditional negligence concepts imposing a duty of-care requiring warning of danger only when there is actual or constructive knowledge of the danger. The...
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Opinion After granting a motion for summary judgment,1 the trial court entered a judgment dismissing a petition for the admission to probate of a will purportedly executed by Patrick Mangeri on February 17, 1972. Denial of probate was based upon the trial court’s determination that the will of that date had not been executed in conformity with the requirements for execution of wills by mark. The p...
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Opinion Plaintiff Yvonne Rabago-Alvarez brought suit against Industries, Inc. to recover damages for wrongful termination of her employment. The evidence produced at the trial shows that in 1971, just prior to the commencement of her employment with defendant, plaintiff was employed in the direct selling of copper gift ware. Plaintiff had engaged in this occupation for 16 years and h...
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Opinion J. andF. Dale, the property owners, appeal from a judgment of dismissal entered after the court sustained without leave to amend 1 the general demurrer of the City of Mountain View to Dales’ complaint for declaratory relief and inverse condemnation. They contend that the city’s adoption of an amendment to its general plan that restricted the use of their property to “op...
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*114 Opinion Ernest Patrick Kiernan and Nicholas A. Misciagna have brought this action against Union Bank, to recover losses incurred when the bank paid forged checks which had been drawn on their account by their own bookkeeper. The court granted a motion by the bank for partial summary judgment, excluding recovery on all forged checks which had been paid and returned more than ...
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55 Cal. App. 3d 118 (1976) 127 Cal. Rptr. 230 THE PEOPLE, Plaintiff and Respondent, v. FLOYD EDWARD FLORES, Defendant and Appellant. Docket No. 26900. Court of Appeals of California, Second District, Division Two. February 9, 1976. *119 COUNSEL Michael F. Shapiro, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Ass...
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Opinion Plaintiffs and appellants herein appeal from a judgment entered in favor of defendant and respondent after the granting of a motion for summary judgment. The facts of this case properly may be termed a classic “bar examination” type. Plaintiffs Henry Chakmak and Vincent Palmo comprised a general partnership operating under the fictitious name of Tri-Central Construction ...
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Opinion Plaintiff Guntert and two wholly owned corporations operate a steel construction and machinery business on a seven-acre tract called Banner Island leased from the City of Stockton. A clause of the lease permits termination by the lessor on 18 months’ written notice when and if the city decides to accept a bona fide development offer from third parties. 1 In March 1972 t...
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Opinion Education Code section 13413 provides that if administrative proceedings are commenced to dismiss a permanently tenured teacher and a hearing is demanded, the hearing “§hall be commenced within 60 days from the date of the . . . demand for a hearing.” Government Code section 11509, applicable to administrative proceedings involving tenured teachers, states: “The agency shall deliv...
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55 Cal. App. 3d 165 (1976) 127 Cal. Rptr. 386 TRUESTONE, INC., et al., Plaintiffs and Appellants, v. TRAVELERS INSURANCE COMPANY et al., Defendants and Respondents. Docket No. 46580. Court of Appeals of California, Second District, Division One. February 10, 1976. *167 COUNSEL Malvin D. Dohrman and Barrymore & Stevens for Plaintiffs and Appellants. Schell & Delamer, Mark B. Pepys, Robert ...
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55 Cal. App. 3d 173 (1976) 127 Cal. Rptr. 434 THE PEOPLE, Plaintiff and Respondent, v. GERALD LOUIS MOLINA, Defendant and Appellant. Docket No. 26535. Court of Appeals of California, Second District, Division One. January 29, 1976. *174 COUNSEL Donald Wadleigh, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assist...
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Opinion We discuss here two unrelated cases which turn on the question whether the crime of attempting to receive stolen property (Pen. Code, §§ 664 and 496) may be committed if the property involved has not been stolen. In each case the superior court dismissed before trial, and the People appealed. We are of the opinion that the decisional law of California has -established that an antecedent...
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55 Cal. App. 3d 184 (1976) 127 Cal. Rptr. 413 CLARA OBERSTEIN, Plaintiff and Appellant, v. JAMES H. BISSET et al., Defendants and Respondents. Docket No. 15361. Court of Appeals of California, Fourth District, Division Two. February 10, 1976. *186 COUNSEL Bush, Bush & Larsen and Lloyd M. Larsen for Plaintiff and Appellant. Parker, Stanbury, McGee & Babcock, George H. Babcock and Robert J....
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Opinion Petitioners seek a writ of prohibition to prevent the Honorable Delbert E. Wong, Judge of the Los Angeles Superior Court, from presiding at the trial in the case of David Daar, et al. v. The Metropolitan Water District of Southern California, et al., on the ground that he is disqualified under Code of Civil Procedure section 170, subdivision 1, because he has a non waivable interest in ...
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55 Cal. App. 3d 197 (1976) 127 Cal. Rptr. 451 THE PEOPLE, Plaintiff and Respondent, v. SURETY INSURANCE COMPANY, Defendant and Appellant. Docket No. 2436. Court of Appeals of California, Fifth District. January 30, 1976. *198 COUNSEL Rushing & Clark, Albert G. Clark, Jr., I. Mark Bledstein and Bledstein & Lauber for Defendant and Appellant. *199 Stephen Dietrich, Jr., County Counsel, Jame...
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Opinion Defendant appeals from a judgment of conviction entered after a jury found him guilty of two counts of first degree robbery. Since defendant does not attack the sufficiency of the evidence we need not set forth the circumstances of the crimes other than that defendant was positively identified as one of the perpetrators of two such robberies committed on March 4¿$nd April 11, 1974, ag...
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Opinion In an indictment dated 4 October 1973, appealing defendants Haskin, Cornell, Marino, Ackerman, Inc., Transcontinental Leasing Corp., Professional Processors, Inc., Proscene Productions, Inc., and Central Sales West, dba “Scan Imports,” were charged with a conspiracy (Pen. Code § 182, subd. 1) with Gerald Franklyn, aka Gerald Lynn, aka Gerald Hozberg and with other persons, names unknown...
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Opinion The resolution of this appeal requires that we interpret the qualifying phrase “nearest or most accessible” as descriptive of the magistrate before whom one arrested for felony without a warrant must be taken “without unnecessary delay.” (Pen. Code, § 849, subd. (a).) 1 Appellant 2 herein asserts that the qualifying phrase imposes essentially a geographic limitation. We conclude tha...
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Opinion As aresult of injuries "sustained by plaintiffs when their automobile collided with a truck, plaintiffs filed suit against the truck driver and his employer, Trails Trucking Company, claiming negligence. On January 30, 1968, plaintiffs amended their complaint by adding San Jose Autocar White Company (hereinafter “Autocar”) as a third defendant. Autocar was sued on breach of warranty and...
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Opinion The People have appealed from a judgment of the superior court for issuance of a writ prohibiting the municipal court from entertaining criminal charges against Lawrence Ulmer for accosting another in a public place for the purpose of begging or soliciting for alms (Pen. Code, § 647, subd. (c)) and soliciting contributions for a charitable purpose without a permit (Oakland Mun. Code, § ...
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Opinion Petitioner, a prisoner at California Mens Colony, sought, by a petition for a writ of habeas corpus, to attack the validity of a regulation relating to mail privileges of prisoners, adopted by the Director of the Department of Corrections.1 The regulation attacked provides as follows: *270“DP-2405. Correspondence Between Inmates And Courts: Sealed correspondence from an inmate to a court w...
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55 Cal. App. 3d 274 (1976) 127 Cal. Rptr. 579 HARVEY G. COOPER et al., Plaintiffs and Appellants, v. AMERICAN SAVINGS AND LOAN ASSOCIATION et al., Defendants and Respondents. Docket No. 45939. Court of Appeals of California, Second District, Division Five. February 17, 1976. *277 COUNSEL Harvey G. Cooper, Nathaniel S. Colley, Lipsig, Rosenfield, Temkin & Leff, Linley, McDougal, Meloche & ...
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Opinion Proceeding in habeas corpus to secure custody of a child. Order previously made submitting matter, vacated, and a referee appointed to take evidence and determine facts as to whether award of custody to the father would be harmful to the child, and whether an award of custody to a nonparent is required to serve the best interests of the child. (Civ. Code, § 4600.) Statement O...
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Opinion Plaintiffs, the surviving husband and children of Rosemary E. Aas, who was killed in an airplane crash, have appealed 1 from an order of the trial court which dismissed their action against defendant insurer, upon granting defendant’s motion for judgment on the pleadings, and *316 denying plaintiffs’ motion for summary judgment. Plaintiffs, who have re...
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Opinion Plaintiffs and appellants Henry Grier, Michael Chuba, Donald E. Figas, and Orlin Purdue, Sr., on behalf of themselves and all others similarly situated, and Division 192, Amalgamated Transit Union, the labor union representing the named plaintiffs and other bus drivers employed by respondent, brought this action for declaratory relief and damages. The complaint alleged that respon...
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55 Cal. App. 3d 357 (1976) 127 Cal. Rptr. 561 THE PEOPLE, Plaintiff and Respondent, v. ROBERT REYNOLDS, Defendant and Appellant. Docket No. 26960. Court of Appeals of California, Second District, Division Four. February 18, 1976. *360 COUNSEL Keith C. Monroe, under appointment by the Court of Appeal, and Monroe & Riddet for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R....
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Opinion By information filed in September -1972 defendant, alone, was charged under count I with selling a narcotic (cocaine) on 22 February 1972, a felony, in violation of Health and Safety Code section 11501 (now Health & Saf. Code, § 11352); count II jointly charged defendant and Roberta Moore with possessing for sale a narcotic (cocaine) on 17 March 1972, a felony, in violation of Hea...
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Opinion The defendants, City of San Diego (City) and certain of its officers, including Michael Babunakis, have appealed from a declaratory judgment that four ordinances of City and a contract entered into by City are in violation of City’s charter. Plaintiff is a citizen and taxpayer of City. The contract in question was executed by City July 16, 1973 with Michael Babunakis, one of ...
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55 Cal. App. 3d 418 (1976) 127 Cal. Rptr. 685 NEIL D. REID, INC., Plaintiff and Appellant, v. DEPARTMENT OF HEALTH CARE SERVICES, Defendant and Respondent. Docket No. 34978. Court of Appeals of California, First District, Division Three. February 19, 1976. *419 COUNSEL Neil D. Reid, in pro. per., and Mary Sanford Schneider for Plaintiff and Appellant. Evelle J. Younger, Attorney General, Elizabet...
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55 Cal. App. 3d 423 (1976) 127 Cal. Rptr. 594 PAUL EBERLE et al., Plaintiffs and Respondents, v. THE MUNICIPAL COURT FOR THE LOS ANGELES JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Defendant and Respondent; THE PEOPLE, Real Party in Interest and Appellant. Docket No. 46574. Court of Appeals of California, Second District, Division One. February 19, 1976. *425 COUNSEL Burt Pines, City Attorney, Ward ...
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Opinion This case, and nine companion cases, decided this day, that were consolidated for briefing, involve the novel and important questions: (1) Is it necessary for the record on appeal to show that the trial court expressly advised an unrepresented defendant accused of a public offense classified as an infraction,1 as distinguished from a misdemeanor or felony, that he has the right to be repre...
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Opinion Defendant was charged with jaywalking (Veh. Code, § 21955). Although defendant refused to promise to appear unless he was given the citation first, he finally did sign after the officer called up a “backup” officer. Section 21955 of the Vehicle Code provides as follows; “Between adjacent intersections controlled bv traffic control signal devices or by police officers, pedestrians shall not...
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55 Cal. App. 3d 434 (1976) 127 Cal. Rptr. 799 O.G. SANSONE CO. et al., Plaintiffs and Appellants, v. DEPARTMENT OF TRANSPORTATION, Defendant and Respondent. Docket No. 45232. Court of Appeals of California, Second District, Division Three. February 19, 1976. *438 COUNSEL Grant & Popovich and Irvin Grant for Plaintiffs and Appellants. Harry S. Fenton, Kingsley T. Hoegstedt, Orrin F. Finch and ...
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Opinion The petition in this matter seeks review of an order granting the petition of real parties in interest to file a late claim against the estate of Raul Jose Segovia, also known as Raul J. Segovia, for injuries allegedly suffered January 23, 1971, in an accident in which the decedent was killed. The issue here is not whether the real parties in interest have, in the civil proceedings in whi...
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Opinion Petitioner, the employee and applicant in compensation proceedings, was awarded 37 percent partial permanent disability in connection with a disability of his left eye and related work restrictions. He contends that the award is inadequate in that the work restrictions were not taken into account in arriving at the rating. We agree that the rating was reached by an erroneous rating assu...
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Opinion On July 18, 1975, respondent court entered an order requiring Kathy Marie Bittle, one of petitioners herein, to appear for a physical examination as permitted by section 2032, subdivision (a), of the Code of Civil Procedure. The order had been requested by real parties in interest as a part of and ancillary to the preparation for trial of respondent court’s case No. NCC 6264 in which pe...
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55 Cal. App. 3d 517 (1976) 127 Cal. Rptr. 741 ROY W. SYZEMORE, Plaintiff and Appellant, v. COUNTY OF SACRAMENTO, Defendant and Respondent. Docket No. 15140. Court of Appeals of California, Third District. February 20, 1976. *519 COUNSEL DeCristoforo & Sullivan and Albert E. Combatalade for Plaintiff and Appellant. Memering, Stumbos, DeMers, Ford & Norris and Dianna Z. Hoffman for Defendan...
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55 Cal. App. 3d 525 (1976) 127 Cal. Rptr. 775 COASTAL SOUTHWEST DEVELOPMENT CORPORATION, Plaintiff and Respondent, v. CALIFORNIA COASTAL ZONE CONSERVATION COMMISSION, Defendant and Appellant. Docket No. 14239. Court of Appeals of California, Fourth District, Division One. February 20, 1976. *528 COUNSEL Evelle J. Younger, Attorney General, Carl Boronkay, Assistant Attorney General, Anthony C. Jos...
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Opinion This is an appeal from a judgment denying a writ of mandate sought to compel respondents to employ appellant without requiring her to take and subscribe to the following oath: “I,_, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear tru...
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55 Cal. App. 3d 553 (1976) 127 Cal. Rptr. 856 SAN LEANDRO POLICE OFFICERS ASSOCIATION et al., Plaintiffs and Appellants, v. CITY OF SAN LEANDRO et al., Defendants and Appellants. Docket No. 35241. Court of Appeals of California, First District, Division Four. February 23, 1976. *555 COUNSEL Carroll, Burdick & McDonough and Christopher D. Burdick for Plaintiffs and Appellants. Glenn A. Forbes,...
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Opinion The question presented by this appeal is whether an 11-mile portion of the Russian River is a navigable stream and thus open to the public for boating and recreational activities. We conclude that it is. Plaintiffs-appellants are persons with varied interests who have joined in this action to protect their right to free and unobstructed navigation on this part of the river. D...
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Opinion This is an appeal from a judgment of dismissal after a demurrer was sustained to plaintiffs’ complaint without leave to amend. It concerns primarily the construction of the guidelines of Dillon v. Legg, 68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316], governing determination of foreseeability of emotional trauma through sensory perception of p...
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Opinion On June 26, 1971, John Kaplan was injured by the negligence of an uninsured motorist and on December 6, 1973, filed a petition seeking appointment of a third and neutral arbitrator for the adjudication of his claim for damages according to the arbitration provisions of the uninsured motorist coverage of his vehicular liability insurance policy with Eldorado Insurance. Company. On Octobe...
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Opinion It appears without conflict that James F. Collins, Jr., was actively employed by respondent as a deputy sheriff from January 2, 1951, to April 10, 1972. On March 13, 1972, he submitted a letter stating: “I hereby submit my resignation. . .” effective on April 10, 1972. “I am resigning and deferring my retirement.” On February 15, 1974, the Workmen’s Compensation Appeals Board found *59...
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Opinion By information defendant was charged with selling heroin in violation of Health and Safety Code section 11352. He pled not guilty and the cause was set for trial by jury in department 2 before Judge Charles S. Stevens, Jr. Following waiver of his constitutional rights to jury trial, confrontation of witnesses and self-incrimination, the matter was submitted on the preliminaiy hear...
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55 Cal. App. 3d 623 (1976) 127 Cal. Rptr. 681 HERMAN J. TIJSSELING et al., Plaintiffs and Appellants, v. GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION, LTD., Defendant and Respondent. Docket No. 36901. Court of Appeals of California, First District, Division Four. February 24, 1976. *624 COUNSEL Merrill, Thiessen & Gagen and Gregory L. McCoy for Plaintiffs and Appellants. Bronson, Bron...
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Opinion Plaintiff, the duly elected incumbent judge of the Justice Court of the Tracy Judicial District, commenced this proceeding for extraordinary relief, alleging that legislation enabling the creation of a municipal court in the Tracy Judicial District is unconstitutional in its form and effect and that the county ordinance implementing the legislation must be submitted to a referendu...
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*646 Opinion Elaine Harris, appellant herein, is the plaintiff in an action for damage suffered as a result of personal injuries filed in the Superior Court of Los Angeles County originally embracing 24 defendants. Appellant’s brief states that the action has been settled or dismissed as to 17 of the original defendants. Respondents Harry F. and Grace C. Worthington (Worthington) and Edna Har...
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55 Cal. App. 3d 650 (1976) 127 Cal. Rptr. 851 In re EUGENE M., a Person Coming Under the Juvenile Court Law. CLARENCE E. CABELL, as Acting Chief Probation Officer, etc., Plaintiff and Respondent, v. EUGENE M., Defendant and Appellant. Docket No. 27353. Court of Appeals of California, Second District, Division Two. February 24, 1976. *652 COUNSEL Lawrence H. Beylen, under appointment by the Court ...
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*662 Opinion In this proceeding petitioners, Arthur L. Hunot, Frank Hamp, Avrom R. Handleman, Douglas Hamp, and Monsanto Company, seek a writ of prohibition to restrain respondent superior court from taking further proceedings in, or a writ of mandate to compel said court to dismiss, a pending action for lack of prosecution pursuant to Code of Civil Procedure section 583, subdivi...
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55 Cal. App. 3d 692 (1976) 127 Cal. Rptr. 664 THOMAS HINOJOSA et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. 14726. Court of Appeals of California, Fourth District, Division One. February 24, 1976. *694 COUNSEL Andrew Freeman, James N. Pendleton, Norbert Ehrenfreund and Edward K. Curley for Petitioners. Edwin L. Miller, J...
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Opinion In this action for medical malpractice filed by Hannah R. Stills and her minor son, "Jessie Stills, against Doctors Richard Gratton and Allen F. Smoot, judgments of nonsuit were entered at the conclusion of plaintiffs’ evidence in favor of the defendants and against the plaintiffs. This appeal is from the judgments so entered. The right to move for a judgment of nonsuit is gr...
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55 Cal. App. 3d 710 (1976) 127 Cal. Rptr. 745 SCOTT W. BAKER, Plaintiff and Appellant, v. CHRYSLER CORPORATION, Defendant and Respondent. Docket No. 35511. Court of Appeals of California, First District, Division Four. February 25, 1976. *713 COUNSEL Lewis, Rouda & Lewis, Lewis & Rouda, Marvin E. Lewis and Eduardo M. Xavier for Plaintiff and Appellant. *714 Robert E. Cartwright, Edward I....
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55 Cal.App.3d 720 (1976) 127 Cal. Rptr. 688 HENRY E. MIHESUAH, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and UNION OIL COMPANY, Respondents. Docket No. 35622. Court of Appeals of California, First District, Division Four. February 25, 1976. *721 COUNSEL Van Bourg, Allen, Weinberg, Williams & Roger, Barry J. Williams and George C. Allen for Petitioner. Frank H. Batlin, Charles Lawrence Sw...
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55 Cal. App. 3d 732 (1976) 127 Cal. Rptr. 863 SUNNYVALE PUBLIC SAFETY OFFICERS ASSOCIATION et al., Plaintiffs and Appellants, v. CITY OF SUNNYVALE, Defendant and Respondent. Docket No. 36639. Court of Appeals of California, First District, Division Four. February 25, 1976. *733 COUNSEL Miller, Perrin, Domino & Giacalone, Miller, Perrin, Domino, Giacolone & Ackerman and Ernest L. Miller fo...
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55 Cal. App. 3d 737 (1976) 127 Cal. Rptr. 838 KAISER STEEL CORPORATION, Plaintiff and Appellant, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant and Respondent. Docket No. 43902. Court of Appeals of California, Second District, Division One. February 25, 1976. *739 COUNSEL Kirtland & Packard, Loyd W. Reed and Robert E. Moore, Jr., for Plaintiff and Appellant. Lynberg & Connor, Charles A. ...
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Opinion Defendants Dorothy Ann Smith and James Ashburner Smith, Jr., appeal from one paragraph only of an interlocutory judgment in condemnation. The judgment determined that defendants were entitled to the sum of $51,000 plus interest as (1) just compensation for the taking of a parcel described therein as “Parcel 5-10,” comprising (a) fee title to 1,264 square feet of a total of 12,139 square fe...
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55 Cal.App.3d 759 (1976) 127 Cal. Rptr. 672 THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; JOSEPH W. ABRAHMS, Real Party in Interest. Docket No. 47691. Court of Appeals of California, Second District, Division Three. February 25, 1976. *761 COUNSEL John K. Van de Kamp, District Attorney, Donald J. Kaplan, Philip J. McCarthy and Jay J. Becker, Deputy District Atto...
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55 Cal. App. 3d 773 (1976) 127 Cal. Rptr. 712 KAREN COOK et al., Plaintiffs and Appellants, v. GLENDON CRAIG, as Director, etc., et al., Defendants and Respondents. Docket No. 15094. Court of Appeals of California, Third District. February 25, 1976. *777 COUNSEL Amtai Schwartz, Joseph Remcho, William Bennett Turner, Vilma I. Martinez, Sanford Jay Rosen and Anthony G. Amsterdam for Plaintiffs and ...
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55 Cal. App. 3d 798 (1976) 127 Cal. Rptr. 729 In re DAVID T., a Minor. A.G. FORBES, as Chief Probation Officer, etc., Plaintiff and Respondent, v. DAVID T., Defendant and Appellant. In re BRUCE W., a Minor. A.G. FORBES, as Chief Probation Officer, etc., Plaintiff and Respondent, v. BRUCE W., Defendant and Appellant. Docket Nos. 14347, 14541. Court of Appeals of California, Fourth District, Divisi...
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55 Cal. App. 3d 803 (1976) 126 Cal. Rptr. 136 DEREK A. McDANIEL et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. 14742. Court of Appeals of California, Fourth District, Division One. February 25, 1976. *804 COUNSEL Savitz & Welles, Richard E. Savitz, McInerney, Milchen & Frank and Robert E. May for Petitioners. No a...
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55 Cal. App. 3d 811 (1976) 127 Cal. Rptr. 865 BOARD OF DENTAL EXAMINERS, Petitioner, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; DAVID HOWARD KORB, Real Party in Interest. Docket No. 15452. Court of Appeals of California, Third District. January 29, 1976. *813 COUNSEL Evelle J. Younger, Attorney General, and Cir Grogan-Beal, Deputy Attorney General, for Petitioner. No appearance for R...
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Opinion Defendant James B. Jeffries (hereinafter “Jeffries”) appeals from the judgment entered in conformity to an order confirming the award of an arbitrator. Plaintiffs, Tom Trollope and Bernice E. Trollope (hereinafter jointly referred to as the “Trollopes”), have moved to dismiss the appeal on the ground that Jeffries “has waived his right to appeal by voluntarily accepting the benefi...
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55 Cal. App. 3d 827 (1976) 128 Cal. Rptr. 86 EDWARD D. YOUNG, JR., Plaintiff, Cross-defendant and Respondent, v. MARSHALL REDMAN, Defendant, Cross-complainant and Appellant; THOMAS J. GIBBONS, JR., Intervener, Cross-complainant and Respondent; LOUIS KLOOSTERMAN, Cross-complainant and Respondent. Docket No. 45874. Court of Appeals of California, Second District, Division One. February 26, 1976. *8...
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*842 Opinion This is an appeal from a judgment enjoining enforcement of Long Beach Ordinance C-5106 as amended by Ordinance C-5145. It raises the issue of the constitutionality of a city business license tax surcharge differing by region imposed to implement a municipal parking and business improvement area plan adopted pursuant to Streets and Highways Code section 36000 et seq. ...
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Opinion Property owners, Gould, Johnson, Shope, Wheeler and Monahan, appeal from a judgment in condemnation in favor of the City of Los Angeles, decreeing that the city is entitled to acquire for airport purposes a fee simple interest in their various residential properties located near the Los Angeles International Airport. Appellants contend that in the judgment they should have been awarde...
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55 Cal. App. 3d 864 (1976) 128 Cal. Rptr. 54 MIDSTATE THEATRES, INC., Plaintiff and Appellant, v. COUNTY OF STANISLAUS et al., Defendants and Respondents. REDWOOD THEATRES, INCORPORATED, Plaintiff and Appellant, v. COUNTY OF STANISLAUS et al., Defendants and Respondents. Docket Nos. 2452, 2453. Court of Appeals of California, Fifth District. February 26, 1976. *868 COUNSEL Ehrman, Flavin & Mo...
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*900 Opinion Plaintiff William G. Enders appeals from a summary judgment entered in favor of defendant Apcoa, Inc., Division of I.T.T. Consumer Services Corporation, the operator of a parking lot. Facts By affidavit, Apcoa parking lot attendant Manny Chalearpiamnugit declared: “On November 20, 1972 at approximately 2:20 PM., Myma Ziff brought her Pontiac Firebird to the [Apcoa parking l...
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Opinion Black, a minor, Joel Black, a minor, Lee Roy Black, Jr., a minor, Jeffrey Black, a minor, by Judith Black, their *924 guardian ad litem (collectively Black minors) and Judith Black (an adult) filed an original complaint July 28, 1969, and an amended complaint December 2, 1969, against County of Los Angeles, a political subdivision of the State of California (County), ...
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55 Cal. App. 3d 937 (1976) 127 Cal. Rptr. 846 WILLIAM H. MEYER et al., Plaintiffs and Appellants, v. HOWARD BENKO et al., Defendants and Respondents. Docket No. 46466. Court of Appeals of California, Second District, Division Five. February 27, 1976. *940 COUNSEL Kasem & Rech and George A. Kasem for Plaintiffs and Appellants. Ingram & Baker, Richard J. Griffiths, Bollen, Suttner & Gek...
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55 Cal. App. 3d 948 (1976) 128 Cal. Rptr. 69 LILY GOLDEN, Plaintiff, Cross-defendant and Appellant, v. M.T. CONWAY, Defendant, Cross-complainant and Appellant. Docket No. 33680. Court of Appeals of California, First District, Division One. March 1, 1976. *951 COUNSEL Thornton, Taylor & Downs and R. Richard Audley for Plaintiff, Cross-defendant and Appellant. Carroll, Burdick & McDonough a...
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Opinion Police Officers Price and Lawrence received a radio call reporting a possible family dispute and “a man with a gun” at 15 and 20 Apollo Street. Officer Price testified that the listing of two addresses indicated that “more than one person had initiated a call.” Upon arrival in the area, Officer Price observed a police car, unoccupied, in the neighborhood of No. 20. (Other evidence establis...
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Opinion In this action to recover taxes paid under protest, plaintiffs Janet and John Favalora (hereafter appellants) appeal from the trial court’s order of dismissal. That order, which is appealable (Code Civ. Proc., § 58Id), was1 entered after the court sustained the general demurrer interposed by the defendants, the County of Humboldt and its tax collector (hereafter the county), and appella...
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Opinion Following a contested jurisdictional hearing, Garth D., a 16-year-old minor, was found to be a person specified in section 602 of Welfare and Institutions Code by virtue of the following offenses: Second degree murder; willfully permitting the unjustifiable suffering of a child; and willfully inflicting cruel and inhuman corporal punishment on a child. He was adjudged a ward of the cour...
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Opinion This is an appeal from a judgment in administrative mandamus overturning a decision of the California Board of Accountancy conditionally revoking the license to practice of N. Ray Guymon. The board contends that: (1) the trial court erred in not treating itself as bound by the board’s resolution of questions of credibility of witnesses; (2) the trial court’s findings of fact made in the...
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Opinion Plaintiff appeals from a summary judgment entered in favor of respondent Standard Oil Company of California (hereafter referred to as Standard). In her complaint, plaintiff alleged that she was the owner of certain shares of Standard stock which her deceased husband (hereafter Schneider) had acquired under a “Stock Plan” created by Standard for the benefit of its employees. This stock had...
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Opinion Eric William Salitter appeals his conviction of possessing a controlled substance (Health & Saf. Code, § 11378) based upon his guilty plea entered after the court denied his motion to suppress evidence. State Bureau of Narcotic Enforcement Agent John Meisner, working undercover, arranged a buy of 25,000 amphetamine pills for $1,300. One of the two sellers went to an intermediary who in tu...
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Opinion This appeal is taken by the People from judgments of dismissal which were entered following orders of the trial court sustaining defendants’ demurrers as to all counts of misdemeanor complaints based upon violations of section 1707.1 of the Health and *Supp. 44Safety Code1 in three consolidated cases.2 The trial court sustained defendants’ demurrers on the ground that section 1707.1 was u...
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Opinion This court has been required to reverse or remand an increasing number of matters, not on the merits of appellants’ contentions but due solely to the failure of settled statements on appeal to reflect what transpired before the trial court. Failure to prepare a proper settled statement results in unnecessary expense to the taxpayer and inconvenience to the litigants. In a traffic infractio...
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Opinion Defendant was convicted of violating Vehicle Code section 22348, subdivision (b).1 The subdivision reads, *Supp. 71“Any vehicle subject to the provisions of Section 22406 shall be driven in a lane designated pursuant to Section 21655, or if no such lane has been designated, in the right-hand lane for traffic or as close as practicable to the right edge or curb. When overtaking and passing ...
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Opinion The People have appealed from the order of the trial court dismissing count II of the complaint after the defendant’s demurrer to that count was sustained. Count II of the complaint alleged that the defendant “did willfully and unlawfully display, cause and permit to be displayed upon an advertising structure and sign pictures and illustrations of human figures in such detail as to offend ...
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Opinion On this appeal 1 by Tanner from a judgment in favor of Freeman, her former broker, the major question is whether the trial court properly concluded that under the oral contract of the parties Tanner was obligated to repay unearned advanced commissions after the termination of the contract. For the reasons set forth below, we have concluded that the judgment in favor of Freeman must be...
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OPINION Introduction Petitioner-appellant Kenneth B. Kilbourne (hereinafter petitioner), having been removed as a member of the City Council of the City of Carpintería by a special recall election, appeals from the denial of his petition for a preliminary injunction by the superior court brought by him after the election, seeking to have the election invalidated and new election ordered pursu...
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Opinion Defendant, Carl Franklin, was accused in counts I and V of robbery (Pen. Code, § 211); in count II of kidnaping (Pen. Code, § 207); in count III of rape (Pen. Code, § 261, subd. 2); in count IV of attempted robbery (Pen. Code, §§211, 664); in count VI of assault with a deadly weapon (Pen. Code, § 245, subd. (a)); in count VII of unlawful *21 sexual intercourse (Pen. Code, § 261.5); an...
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Opinion Complaint seeking recovery for a class and for the individual plaintiff was filed December 19, 1969. It alleged that Bank of America, as lender, had insured with Prudential Insurance Company the lives of its borrowers to assure payment of the loans. It asserted that borrowers had been charged premiums in excess of what was necessary to secure payment of their obligations to the ba...
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Opinion In these separate proceedings the People of the State of California and Roland Wood, Superintendent of the California Rehabilitation Center (CRC) seek a stay of execution of three orders of the San Francisco Superior Court and one order of the Sonoma County Superior Court recommitting certain criminal defendants to the CRC after Superintendent Wood had ordered them excluded. Since the P...
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Opinion Judgment was entered dismissing plaintiffs' complaint which alleged a first cause of action for inverse condemnation and a second cause of action for violation of the federal Civil Rights Act; this judgment was subsequently set aside; judgment was thereafter entered dismissing again the second cause of action and abating (by interlocutory judgment) the first cause of action (because of ...
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56 Cal.App.3d 52 (1976) 128 Cal. Rptr. 122 THE PEOPLE, Plaintiff and Respondent, v. THEODORE ADAM MELISSAKIS, Defendant and Appellant. Docket No. 1851. Court of Appeals of California, Fifth District. March 5, 1976. *54 COUNSEL Roderick P. Bushnell, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney ...
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Opinion Petitioners, husband and wife, who originally filed their joint complaint in respondent court seeking individually general and special damages proximately resulting from injuries suffered as a result of an automobile accident on March 6, 1973, now seek a peremptory writ of mandate ordering the trial court, which has denied their motion to that end, to permit them to amend their co...
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Opinion Defendant appeals from convictions of assault with a deadly weapon by a life prisoner (Pen. Code, § 4500) and possession of a sharp instrument while a prisoner in a state prison (Pen. Code, § 4502). On August 7, 1973, defendant was an inmate at Deuel Vocational Institution (at Tracy, California) serving a life sentence after conviction of first degree murder. He was housed in...
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Opinion The trial court granted summary judgment to defendants on the ground that plaintiff’s cause was barred because he had failed to file a cross-complaint in a prior action brought by defendants. He appeals from the judgment. *115 The facts are undisputed. On Januaiy 31, 1973, the individual defendants Proulx (not including defendant entity Scrambler Motorcycles) filed an action in the ...
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*123Opinion Defendant Isaac Ike Gibson was charged by information with the murder of Donald Rufus Truelove, in violation of Penal Code section 187. He entered a plea of not guilty. Trial was by jury, and defendant was convicted of second degree murder. Probation was denied, and defendant was sentenced to imprisonment in the state prison for the term prescribed by law. He appeals from the judgment ...
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Opinion We review an order of the Workers' Compensation Appeals Board 1 (hereafter “Board”) dismissing petitioner Erla M. *141 Arndt’s application for death benefits following the death of her husband, John H. Arndt, from a claimed occupational disease. In the proceedings before the Board petitioner established, or offered to establish, the following facts. ...
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Opinion This is an appeal from a judgment for respondents in an action to set aside a conveyance under Civil Code sections 3439-3439.12, the Uniform Fraudulent Conveyance Act. Appellants, judgment of Bill W. Schmidt and Schmidt and Associates, Inc. (herein collectively referred to as Schmidt), seek to set aside a transaction between Schmidt and defendant and respondent Crown Capital Corpo...
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Opinion Petitioners, the People of the State of California, seek a writ of prohibition restraining respondent superior court from enforcing an order in the case of People v. Freddie L. Persons and Charles A. *193 Scott (No. 91484) which granted a motion by Persons and Scott for a post-indictment preliminary hearing. Persons and Scott were jointly charged with murder (Pen. Code, § 187) by in...
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Opinion James Snyder appeals from a judgment of the trial court entered pursuant to jury verdict finding him guilty of burglary second degree (Pen. Code, § 459). The Case Defendant James Snyder was arrested and charged with burglaiy. At his arraignment defendant pleaded not guilty and was released on bail pending trial. Trial was set for July 1, 1974. On that date defendant was present with...
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*212 Opinion The third cause of action 1 of an amended complaint filed by Marian Venzor (appellant) alleged that she is the surviving spouse and sole surviving heir at law of Bruno Venzor (Bruno), who was killed on June 12, 1974, when he was struck by an automobile driven by Joe Leslie Atchinson, Jr. (Atchinson), and that at the time he was struck by Atchinson’s automo...
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Opinion On January 2, 1976, petitioner filed a petition for writ of habeas corpus in propria persona with this court. Thereafter, the Supreme Court granted this court’s request to have the petition considered in conjunction with petitioner’s direct appeal from his conviction (5 Crim. No. 1897.) *227 Petitioner’s basic contention is that his rights and guarantees under the Sixth and Fourteen...
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Opinion In these consolidated appeals the question presented is whether an attorney, who" was employed to prosecute personal injury actions under a contingent fee contract and for whom other counsel was substituted while the litigation was pending, is entitled to a lien in a stated amount upon the proceeds of an anticipated recovery by his former client by settlement or judgment. We have...
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Opinion Plaintiff, Anthony S. Frank, worked as a for the California Department of Corrections (“Department”). He was so employed at the California Conservation Center at Susanville from October 1, 1965, through July 23, 1971. On the latter day, he suffered a job related injury. As a result he took immediate sick leave. He was continuously on sick leave thereafter until February 7, 1972, when he...
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Opinion Robert Verna Williams appeals a judgment, following a trial by the court, convicting him of five counts of first degree robbery (Pen. Code, § 211). The court found Williams used a firearm in the commission of the robberies alleged in counts I, II and III (Pen. Code, § 12022.5). The victims of the first three robberies were employees of three different 7-11 stores. Each told of the cir...
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56 Cal.App.3d 256 (1976) 128 Cal. Rptr. 592 In re WILLY L., a Person Coming Under the Juvenile Court Law. DALE J. GRAVER, as Chief Probation Officer, etc., Plaintiff and Respondent, v. WILLY L., Defendant and Appellant. Docket No. 2650. Court of Appeals of California, Fifth District. February 27, 1976. *259 COUNSEL John M. Hanley, under appointment by the Court of Appeal, for Defendant and Appell...
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Opinion Plaintiffs' assignor commenced construction of a 30-unit condominium at Lake Tahoe, and secured a standard fire insurance policy from defendant. During construction, a fire damaged the building. Defendant insurer paid plaintiffs the actual cost of physical *275repair needed to restore the building to its condition at the time of the fire. The owners, however, had borrowed money to finance...
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Opinion Defendant appeals from a judgment sentencing him to state prison, which judgment was pronounced after a previous order granting him probation was revoked. In 1972, defendant was convicted of the crime of sale of marijuana (former Health & Saf. Code, § 11531). Proceedings were suspended and defendant was placed on probation for a period of five years on various terms and condi...
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Opinion This case involves the so-called "dragnet" or "other indebtedness” clause sometimes used in deeds of trust and other security agreements. Plaintiffs (Mr. and Mrs. Wong) appeal from a judgment after the trial court found defendants not liable for damages for their alleged wrongful refusal to accept plaintiffs’ tender of an amount sufficient to redeem four out of eight concurrently ...
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*301 Opinion The instant appeal is taken by Affiliated Vendors, Inc. (“Affiliated Vendors”) from an order denying leave to intervene in an action commenced by Fireman’s Fund Insurance Company Fund”) against defendant Gerlach, who did business under the name of Golden State Vending Service Inc. The facts are undisputed. Affiliated Vendors sold vending machines to Gerlach who stored them in...
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*308 Opinion This is an appeal by plaintiff Shelby Scott Brown, a minor, from an order of the Superior Court of Alameda County staying plaintiff’s action in that court pending initiation of proceedings in a more appropriate forum. Plaintiff filed a complaint against defendants Clorox Company, Inc., Jiffee Chemical Corporation, and Lucky Stores, Inc., in the Superior Court of...
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Opinion K.N.C. Wholesale, Inc. (K.N.C.; appellant) took judgment against AWMCO, Inc. and VANSCO, Inc. To satisfy K.N.C.’s judgment, a writ of execution was levied on certain personal property. JAPE, Inc. and Wells Fargo Bank, claiming through JAPE filed a third-party claim to the property. K.N.C. petitioned for a hearing of the third-party claim pursuant to Code of Civil Procedure section...
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Opinion In a nonjury trial defendants Fixler and Utterback were convicted of conspiring to violate Penal Code section 266i (pandering). In addition, Fixler was convicted of two substantive counts of pandering and Utterback was convicted of one substantive count of pandering. They appeal from the judgment of conviction. There is little dispute as to the facts underlying the judgment. Utterback...
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*330 Opinion This is an appeal by plaintiff-appellant Paul W. Sorensen (Sorensen) a judgment Farmers Insurance Exchange (Farmers) after a trial in which the jury was waived. The judgment held that the insurance policy issued by Farmers to Sorensen did not extend uninsured motorist coverage benefits to Sorensen for injuries sustained by him in a motorcycle accident. Statement of Facts In M...
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Opinion The within petition for a writ of habeas corpus was filed by Jacqueline Pearlmutter on behalf of her husband, Jack Pearlmutter, to secure his release from county jail following his 30-day commitment for contempt of court. We ordered Pearlmutter released on $500 bail and calendared the matter for hearing on January 28, 1976. On that date the court was informed that Pearlmutter was in Yum...
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Opinion In August 1965 plaintiff's husband was killed in an automobile collision with a car driven by William McConkey. Her wrongful death action resulted in a damage judgment against McConkey. Plaintiff then filed the present action on the judgment, seeking *341 recovery from Fireman’s Fund American Insurance Companies (Fireman’s Fund), which had issued an automobile liabili...
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Opinion Plaintiff John Howard Rogers was injured in the San Diego Stadium parking lot when he went to the aid of a private patrolman who *348 had been assaulted and knocked down by one of 53,000 fans leaving the stadium after a San Diego Charger football game. In this action for personal injuries, framed on the theory of negligent failure to control the crowd, a jury returned...
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Opinion The issue is whether, under Government Code section 911.2, a lessee’s claim for damages against a public entity-lessor for breach of an implied promise of fitness of water for use on growing crops sounds in tort so as to require the filing of the claim within 100 days after the accrual of the cause of action, or whether the claim is based on a contract thereby allowing the claim to be f...
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Opinion Bay Cities Paving and Grading, Inc. appeals from a judgment that it take nothing upon its complaint against Hensel Phelps Construction Company. Appellant submitted bids to respondent for excavation and asphalt paving subcontracts in connection with construction of the Bay Area Rapid Transit (BART) station at Concord, California. Respondent informed appellant that appellant’s ...
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Opinion Following the execution of a warrant authorizing a search of his house, Ronald O. Glass and two codefendants were charged with nine violations of the Health and Safety Code, specifically sections 11350, 11357, 11358, 11360, 11364, 11366, and 11377. After the motion to suppress the evidence, pursuant to section 1538.5 of the Penal Code, was denied, defendant Glass pleaded guilty to...
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*376 Opinion The People seek to annul the order of the Humboldt County Superior Court quashing a subpoena issued to compel of a witness to testify in a felony criminal prosecution. In May 1975, Mabel B., a 15-year-old minor, reported to authorities that her stepfather, real party in interest Glen Long, had sexually molested her over the preceding several years. Mabel was rem...
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Opinion On December 10, 1971, Larry K. Vallas filed a complaint for personal injuries and damages against Lon Napier, a Chula Vista police officer, and the City of Chula Vista. The complaint was later amended and he went to trial on causes of action based on negligence in handling of a gun by Napier and negligence in the training or instructing of Officer Napier by the city. The defenses ...
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Opinion Beeline Fashions, Inc. ("Beeline") is an Illinois corporation engaged in the business of manufacturing and selling women’s ready-to-wear apparel. It markets such clothing throughout the United States, and is registered as a retailer in California. Full-time employees of Beeline, called “managers,” recruit and contract for the *392services of “stylists.” These stylists, in turn, organize “...
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Opinion Petitioner seeks a writ of prohibition restraining respondent court from entertaining a quo warranto action brought against petitioner by the People of the State of California. In the subject action the People pray for a judgment declaring that petitioner be declared to be unlawfully holding and exercising a franchise' to construct, operate and maintain a water system serving...
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Opinion The question presented by this appeal is whether Code of Civil Procedure sections 860-870 (the validating statutes) govern a school district’s contract for the purchase of a computer. We conclude that they do not. Appellants, as taxpayers, commenced this action for injunctive and declaratory relief against respondents Mt. Diablo School District (District), the members of the ...
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*432 Opinion On 24 May 1971 plaintiff filed a complaint for medical malpractice against Saint Joseph Medical Center, Burbank Community Hospital, Drs. Frederick Amerongen, Joan Marie King, Charles King, Donald Springer, and Phillip Davis. The superior court clerk issued summons on 24 May 1971, but the summons was not served on any of the defendants at that time. Not quite three ye...
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Opinion The federal government distributes to the states a portion of federal forest reserve revenues; these are to be spent for public roads and schools as prescribed by state law. (16 U.S.C. § 500; King County v. Seattle School District No. 1 (1923) 263 U.S. 361 [68 L.Ed. 339, *456 44 S.Ct. 127].) California law directs distribution of forest reserve r...
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Opinion Plaintiff, a minor, brought the instant action for damages for the loss of an eye when he was allegedly struck by a projectile discharged from a rotary power lawnmower manufactured by defendant M.T.D. Corporation (M.T.D.) and sold by defendant Western Auto Supply Corporation (Western Auto). Plaintiff’s action was based solely on the theory of strict liability of a manufacturer or distri...
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Opinion Plaintiff, as a representative of a class, filed this taxpayer’s suit against defendants, City of San Bruno, city council members, the city’s finance director and the city engineer (city) to enjoin the use of city employees to perform work, in violation of section 37902 of the Government Code, which provides: “When the expenditure *481required for a public project exceeds three thousand f...
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Opinion Plaintiff Alfred Inselberg appeals an order granting a motion to quash service of summons for lack of jurisdiction on defendants Edgar and Rachel Inselberg, residents of Michigan, who appeared specially to contest jurisdiction over them in an action “for enticement of a child from her parent, return of overcharges in support payments,... payment of monies being withheld from plaintiff i...
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*507 Opinion Defendant was found guilty by a jury of attempted burglary and sentenced to state prison for the term prescribed by law, pursuant to Penal Code section 1168. Probation in another case was revoked and state prison sentence imposed pursuant to Penal Code section 1168. The sentences were to be served concurrently. Defendant argues that the recent case of People v. Harris, 15 C...
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Opinion Defendant Mann Municipal Water District (hereafter “District”) appeals from a judgment granting plaintiff Albert Swanson a peremptory writ of mandate compelling District to grant plaintiff a pipeline extension and to provide water service to his real property. For reasons set forth herein, we conclude that District did not act either fraudulently, arbitrarily or capriciously in enacti...
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Opinion Plaintiff brought this action for compensatory and punitive damages for fraud and the breach of an alleged agreement to employ him in a corporation to be formed as a subsidiary to an existing corporation, the Siltec Corporation. Defendants’ motion for summary judgment was granted and plaintiff appealed. The record discloses that appellant Joseph Santandrea brought this action...
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Opinion The District Attorney of San Francisco filed an action on behalf of the public under Civil Code section 3369 against the corporate owner and operators of a grocery store in a predominantly Japanese quarter of San Francisco to enjoin the sale of canned whale meat in violation of Penal Code sections 653o and 653r. Section 653o, originally *534 enacted in 1970 and operative December 1, 1...
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Opinion Jesus Orabuena, Jr., appellant, was charged with and found guilty by a jury of one count of murder (Pen. Code, § 187), three counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)), and with use of a firearm in the commission of each of the felonies charged (Pen. Code, § 12022.5). He appeals from a judgment entered on the jury’s verdict. On September 7, 1974, at about 1:3...
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Opinion This is an appeal from a judgment for plaintiff Ralston Purina Company in its suit for refund of ad valorem personal property taxes levied and collected from it under protest by defendants County of Los Angeles and City of Los Angeles. The personal property taxed was canned tuna stored in plaintiff’s warehouses at Los Angeles Harbor. The trial was to the court which made detailed ...
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Opinion Kenneth Cory, as Controller of the State of California, appeals from an adverse judgment sustaining objections filed by the executor of the estate of Belle Crowell to the report of the inheritance tax referee filed in this matter on March 19, 1974. *566 The referee included in his report as property of the estate of Belle Crowell subject to taxation under the inherit...
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Opinion Defendant United States of America, Department of the Treasury, Internal Revenue Service, appeals from an order for the *577 distribution of funds deposited with the clerk of the court in an interpleader action in which Alvin Wechsler was plaintiff. The other defendants were M. M. Milstein, Glen L. Ward, Maurice David Meyers and Miles C. Babcock, respondents herein, and Bert Gervis. T...
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Opinion Plaintiffs appeal from an order sustaining the general demurrer of defendant Phillips Petroleum Company and dismissing plaintiffs’ amended unlawful detainer complaint against this defendant. Facts On December 19, 1973, plaintiffs purchased the commercial real property located at 16103 Ventura Boulevard, Encino, California which is the subject of this lawsuit. Plainti...
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Opinion After a trial before a jury, the People of the State of California (hereinafter “State”) recovered a judgment for *597 $21,584.19 against Southern California Edison Company (hereinafter “Edison”) in an action for fire suppression expenses pursuant to Health and Safety Code sections 13009, 13008 and 13007. 1 Thereafter, the trial court granted Edison’s motion for a new trial on the s...
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*623 Opinion Plaintiffs Marvin Fish and Francine R. Fish appeal from a judgment in favor of defendants Los Angeles Dodgers Baseball Club and Glen E. Jones, M.D., upon a jury verdict. The complaint was for damages for the wrongful death of plaintiffs’ 14-year-old son, Alan, who died following his being struck by a line-drive foul while watching a Dodger baseball game. Originally, ...
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Opinion Petitioner, formerly the manager of the Associated Students Book Store at California State University, Chico, appeals from an order sustaining, without leave to amend, the demurrers of all respondents to his petition seeking review under Code of Civil *646 Procedure section 1094.5 of the administrative decision dismissing him from said position. 1 , 2...
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*652 Opinion This proceeding presents a single issue: Under the comparative negligence doctrine adopted by the California Supreme Court in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226], may a defendant in an action for personal injuries instituted by an injured employee obtain contribution from the employer for that portion of ...
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Opinion Plaintiff insured appeals from the denial of his petition to compel arbitration against defendants California State Automobile Association Inter-Insurance Bureau (hereinafter “AAA”) and El Dorado Insurance Company (hereinafter “El Dorado”). Plaintiff was injured on March 8, 1972, in a collision with an uninsured motorist, while driving a motorcycle owned by him. A policy of i...
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*669Opinion We are concerned on this appeal with the between officials of a state university or college and its “student body organization” in the administration of the latter’s funds. Our task is the interpretation of relevant portions of title 5 of the California Administrative Code (sometimes herein “regulations") and the Education Code. The regulations were promulgated by respondent Board of T...
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Opinion Appellant was convicted, following a court trial, of violation of Welfare and Institutions Code section 11483 (obtaining by means of false statements aid for a child not entitled thereto in an amount greater than $200) and Penal Code section 118 (perjury). The appeal is from the judgment. *681 Appellant does not contest any factual matters herein. A brief summary of the facts is as ...
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Opinion This appeal from a judgment of conviction of one count of rape and two counts of kidnaping raises the constitutionality of the 1974 amendments to the Evidence Code limiting admissibility of evidence of sexual conduct of the victim of rape. It raises, also, the sufficiency of an offer of proof made by defendant at trial pursuant to Evidence Code section 782 to require a formal hearing on...
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Opinion Plaintiff filed this civil action for damages and injunctive relief against his former employers in August 1973, alleging that he had been relieved of his job as plant superintendent in April 1973 solely because of his age and that he had been replaced by a younger person. In October 1974 defendants’ motion for summary judgment was granted, on the ground that plaintiff had failed to exh...
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Opinion Plaintiffs have appealed from a judgment which denied them any relief on their petition for writ of mandate in which they sought a peremptory writ compelling the city clerk to examine and certify a referendum petition, and the city council to either rescind the ordinance, *713 the subject of the petition, or submit it to a vote of the electors of the city. The ordinan...
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Opinion This is an appeal from a conviction of vehicular manslaughter (Pen. Code, § 192, subd. (3)(b)), arising out óf a collision between a Camaro automobile driven by appellant, Paul A. Scola, and a Pontiac automobile driven by the deceased, Bonnie Lynn Schendel. Appellant claims the evidence was insufficient and that the court erred in its refusal to give certain requested instructions. We...
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Opinion Appellant Debbe Lewis commenced this proceeding in administrative mandamus by petitioning the superior court pursuant to Code of Civil Procedure section 1094.5. (We refer to her as “petitioner.”) In her petition, she sought a writ of mandate which would have required the Unemployment Insurance Appeals Board (respondent below and here, to which we refer as “respondent Board,” or th...
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Opinion This is an appeal by a taxpayer from a judgment sustaining the imposition of an unapportioned county tax upon personal property of the taxpayer physically outside of the taxing county on the lien date because of its use in interstate commerce. We conclude that, to the extent the property had acquired a tax situs in a state other than California, the due process and commerce clause...
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Opinion This is an appeal from a judgment on a jury verdict rejecting plaintiffs’ causes of action for wrongful death based upon negligence in maintenance and operation of a flood control system, defendant’s maintenance of. a dangerous condition with actual or constructive knowledge of its existence, and for infliction of emotional distress. The appeal is also from a portion of the judgme...
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Opinion This is an appeal from a judgment of the superior court declaring that the City of Glendale failed to comply with the California Environmental Quality Act of 1970 in rezoning 63 acres of property from a zone requiring single family residences to a planned development zone permitting multiple unit construction. The judgment incorporates a writ of mandate directing the city to vacate its ...
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*783 Opinion This is an appeal from a summary judgment disallowing contestants’ challenge to a referendum election approving a county ordinance rezoning coastal property to permit construction of oil and gas facilities. It raises issues of: (1) the applicability of the summary judgment procedure contained in Code of Civil Procedure section 437c to election contests filed pursuant to Elections...
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Opinion Appellants 1 and respondent Aetna Casualty & Surety Co. (Aetna) were insurers of Union Oil Company (Union) in January 1969, at the time of the Santa Barbara oil well blow-out. Aetna defended Union to the exhaustion of the $50,000 monetary limit of its policy. The instant action for equitable subrogation and declaratory relief was filed be,cause Aetna, although continuin...
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Opinion Plaintiff Charlton Company of California, a California corporation, filed a complaint alleging that defendant, the Aerfab Corporation, had breached an oral settlement agreement. Defendant moved to stay further proceedings in the suit and to compel arbitration of the dispute. (Code Civ. Proc., § 1281.2.) After considering the affidavits, declarations and points and authorities file...
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56 Cal.App.3d 814 (1976) 128 Cal. Rptr. 854 In re the Marriage of CARLOTTA and MATTHEW HENDLE. CARLOTTA HENDLE, Respondent, v. MATTHEW HENDLE, Appellant. Docket No. 46394. Court of Appeals of California, Second District, Division Four. March 30, 1976. *815 COUNSEL Richard N. Piantadosi for Appellant. No appearance for Respondent. OPINION KINGSLEY, Acting P.J. The husband appeals from an interlocu...
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Opinion This is an action for invasion of privacy. Plaintiff appeals from a summary judgment in favor of defendants. Plaintiff was president of Automotive Lodge No. 1186 of the International Association of Machinists and Aerospace Workers, and was a candidate for secretary-treasurer in the union’s December 1970 election. 1 During the campaign defendants French and Crago di...
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Opinion Plaintiffs, Egon and Anna Munchow, appeal from a judgment on the pleadings rendered in an action to recover damages for fraud. On February 24, 1972, plaintiffs filed a complaint naming Edwin Kraszewski, Al Puglisi, Jimmy Machen, Richard Stewart, William Felts, individually, and doing business as Pioneer Oldsmobile Co., 1 Wyco Metal Products (Wyco), a corporation, and Fo...
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Opinion This is a personal injury action arising out of the crash of a private airplane piloted by defendant. After a jury verdict for defendant, the trial court granted plaintiff’s motion for a new trial. Defendant appeals from the order granting a new trial. Plaintiff has filed a “protective cross appeal” from the judgment entered on the verdict (see 6 Witkin, Cal. Procedure (2d ed. 1971) Appea...
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Opinion Appellant pleaded guilty to possession of marijuana (Health & Saf. Code, § 11357) after the trial court denied his motion to *847suppress evidence, and he appeals pursuant to Penal Code section 1538.5, subdivision (m). At 4:45 a.m. on February 9, 1974, Deputy Sheriffs Rust and Schilling stopped a 1966 Chevrolet on Santa Monica Boulevard because it had no registration tabs on the license p...
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Opinion Appellant attempts to appeal from an order by a referee of the juvenile court finding that appellant is a person described by Welfare and Institutions Code section 602. We have concluded that the notice of appeal was not timely filed and the appeal must be dismissed. On January 29, 1975, a referee of the juvenile court found true paragraphs I and II of a petition alleging that appella...
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Opinion Plaintiffs, Dale Cooper, et al. (hereafter generally purchasers), appeal from judgments of dismissal (Code Civ. Proc., § 58 Id) of their action against Jack Jevne, Glenn S. Evans, and Mammoth Properties (hereafter generally sales agents); William Clark and Robert Hedrick, dba Clark-Hedrick Architects (hereafter generally architects); and Robert W. Sandy, Robert Thomas, Walter Brow...
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Opinion Defendant Decatur James, Jr., was charged, in count I of an information, with burglary, in violation of Penal Code section 459; in count II, with robbeiy, in violation of Penal Code section 211; and in count III, with rape, in violation of Penal Code section 261, subdivision 2. Defendant’s in limine motion to preclude the use, for impeachment purposes, of three prior convictions (purs...
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Opinion In this wrongful death, railroad crossing case plaintiffs appeal from a judgment in favor, of the defendants entered upon a jury verdict. Although several contentions are advanced, plaintiffs candidly concede that the primary and pivotal issue is the refusal of the trial court to submit the issue of alleged willful misconduct to the jury. *905 It is, of course, axiom...
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Opinion Defendant Hughes Tool Company (now Summa Corporation) doing business as Frontier Hotel appeals the judgment in favor of plaintiff Lewis Kerner in an action for breach of contract. The trial court found that defendant repudiated an agreement for plaintiff to produce “My Fair Lady” in the main showroom of the Frontier Hotel in Las Vegas for 26 weeks at $75,000 per week. The court as...
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Opinion In August 1968 Lewis, a television serviceman, then 45, suffered orthopedic injuries in a work-related automobile *941 accident. In July 1972, he died of heart disease. The single question in these compensation proceedings is whether the disability, discomfort, and pain consequent to the 1968 accident contributed to his death from coronary atherosclerosis in 1972. Lewis’s widow file...
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Opinion Defendant appeals the judgment in a nonjury trial that resulted in his conviction for attempted kidnaping. (Pen. Code, §§ 207, 664.) He contends, (1) the evidence was insufficient to establish intent to kidnap and the commission of any act beyond mere prepara *956 tion, and (2) the attempted asportation was purely incidental to the commission of an associated crime. The evidence, vi...
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Opinion International Association of Fire Fighters Union Local 1974, AFL-CIO, a labor union (hereinafter “appellant union,” or “union”) appeals from a judgment entered in its action against respondents (the City of Pleasanton, its city manager, and the members of its city council). The appeal challenges the judgment insofar as it reflects the trial court’s determination that legislative a...
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Opinion This proceeding originates on the amended complaint in an action for damages which is pending in respondent court. According to the pleading (hereinafter the “complaint”), Anthony J. McCarthy was killed in an airplane accident on April 14, 1972. The plaintiffs in the action (and real parties in interest herein) are his widow and his minor son, who sue as his “heirs,” and Mary Linn...
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Opinion Defendant appeals his conviction of violating Penal Code section 626.9. That section provides, in applicable part, that “Any person, [here follow exceptions not relevant to the present case] who brings or possesses a firearm upon the grounds of any public school, including the University of California and the state university and colleges, or within any public school including the Universi...
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Opinion In this matter we hold that the term "wages" as used in Labor Code section 216. subdivision (a) includes vacation pay and that the section does not violate the constitutional prohibition against imprisonment for debt. The People appeal (Pen. Code, § 1466, subd. 1 (b)) from an order of dismissal which followed the sustaining of a demurrer. Labor Code section 216,1 subdivision (a) reads: “I...
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Opinion Placentia Fire Fighters, Local 2147 (Union), plaintiff, has appealed from a judgment denying it relief in its action against City of Placentia (City) and certain of City’s officials. The action was based upon alleged denial by City of Union’s bargaining rights under the Meyers-Milias-Brown Act (the Act) (Gov. Code §§ 3500-3509), 1 noncompliance by City with and violation of that *1...
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57 Cal. App. 3d 29 (1976) 127 Cal. Rptr. 540 MARGARET L. PRESCOD, Plaintiff and Appellant, v. UNEMPLOYMENT INSURANCE APPEALS BOARD, Defendant and Respondent; WELLS FARGO BANK, Real Party in Interest and Respondent. Docket No. 37109. Court of Appeals of California, First District, Division Two. April 5, 1976. *31 COUNSEL Mary C. Dunlap for Plaintiff and Appellant. Evelle J. Younger, Attorney Gener...
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57 Cal. App. 3d 44 (1976) 128 Cal. Rptr. 712 CITY AND COUNTY OF SAN FRANCISCO et al., Petitioners, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; LOIS LONG et al., Real Parties in Interest. Docket No. 38249. Court of Appeals of California, First District, Division Two. April 5, 1976. *45 COUNSEL Thomas M. O'Connor, City Attorney, Kevin M. O'Donnell and William A. Barre...
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Opinion This is an appeal from a summary judgment against plaintiff longshoreman seeking damages for negligence of defendant shipping company, owner of the ship upon which he was working when *56 injured. It involves the standard of negligence applicable to actions based upon the 1972 amendments to the Longshoremen’s and Harbor Workers’ Compensation Act. (33 U.S.C. §§ 903-905...
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57 Cal. App. 3d 65 (1976) 129 Cal. Rptr. 8 DALE ANDRE LEE EVERETT, a Minor, etc., Plaintiff and Appellant, v. CHAD EVERETT, Defendant and Respondent. Docket No. 46867. Court of Appeals of California, Second District, Division Five. April 5, 1976. *66 COUNSEL Barbara Warner Blehr for Plaintiff and Appellant. Sidney Traxler, Mitchell, Silberberg & Knupp, Daniel A. Weber and Marilyn E. Levine fo...
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Opinion Petitioner is the cross-complainant in a civil suit now pending against the real party in interest. 1 The cross-complaint was filed November 23, 1970. Trial was originally set for August 14, 1972. It was continued to October 2, 1972, at the request of the real party, and then *74 reset for October 16, 1972, upon stipulation of counsel. On October 6, 1972, o...
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Opinion This appeal concerns the validity of certain “devel-" opment” permits issued by respondent California Coastal Zone Conservation Commission (hereafter “Commission”) under authority of the California Coastal Zone Conservation Act of 1972 (hereafter sometimes the “Act”) found in Public Resources Code sections 27000-27650, inclusive. The permits authorized construction of 15 homes on lots owne...
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57 Cal.App.3d 104 (1976) 128 Cal. Rptr. 901 KEN ROBERTS, Plaintiff and Appellant, v. BALL, HUNT, HART, BROWN & BAERWITZ et al., Defendants and Respondents. Docket No. 46507. Court of Appeals of California, Second District, Division Four. April 6, 1976. *106 COUNSEL Peter C. Bennett and Richard H. Floum for Plaintiff and Appellant. Bonelli, Malone, Wood & Lyden, Stanley Sapiro, Ball, Hunt,...
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Opinion An authorized dealer in Concord sold a Mercury automobile to plaintiff February 15, 1968. On November 21, 1970, *116 plaintiff was driving this car near Truckee within the allowed speed limit. She applied the brakes lightly. The car went out of control and struck an embankment, injuring plaintiff. She brought this action in strict liability against the manufacturer an...
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57 Cal. App. 3d 118 (1976) 128 Cal. Rptr. 898 In re CHARLES FREDERICK DUPPER on Habeas Corpus. Docket No. 14467. Court of Appeals of California, First District, Division Three. April 7, 1976. *120 COUNSEL Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, William M. Baldwin, and W. Eric Collins, Deputy Attorneys G...
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*142 Opinion Defendant Colony Kitchens 1 appeals from a judgment against it on an “Amendment to Complaint,” awarding the Phoenix of Hartford Insurance Companies, hereinafter referred to as “Phoenix,” $5,371.12 and awarding Earl K. Robbins $100. The action arose out of an automobile accident caused by the negligence of the" driver of a Ford automobile in the course...
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Opinion This cause is again before the court pursuant to a transfer from the Supreme Court for reconsideration in the light of People v. Lent (1975) 15 Cal.3d 481, 484 [124 Cal.Rptr. 905, 541 P.2d 545], Kenneth Wiley was charged with kidnaping (Pen. Code, § 207), robbery (Pen. Code, § 211), rape (Pen. Code, § 261), and oral copulation by force (Pen. Code, § 288a). Following a jury trial, ...
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Opinion Petitioner Iversen, a claims supervisor employed by the codefendant insurance company, seeks a writ of mandate to compel the *170 Los Angeles Superior Court to grant his motion for summary judgment in an insured’s action for breach of the duty of good faith and fair dealing. Following an adverse judgment in a cross-complaint for indemnification, Sunshield Insulation Company (Sunshie...
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Opinion Defendant Chubb/Pacific Indemnity Group appeals from judgment entered in a declaratory relief action ordering it as the primary insurer to defend and indemnify plaintiff Pacific Export Packers to the extent of the policy in an action for personal injuries brought against Pacific Export Packers by Gerald Crucius, and recovery of moneys expended by plaintiff Ohio Casualty Insurance Compan...
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*203Opinion Defendant has applied to this court for an order setting bail on appeal. In 1972 defendant pleaded guilty of pimping (Pen. Code, § 266h) and in 1973 was convicted of pandering (Pen. Code, § 266i), both felonies. Proceedings were suspended in both cases and probation was granted for a period of two years, subject to a nunber of conditions, one of which was that he serve 30 days in count...
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Opinion This case comes before this court on an appeal from a judgment of the reviewing court granting a peremptory writ of mandamus commanding defendant (hereinafter referred to as “appellant”) to set aside and vacate its order suspending the driving privilege of plaintiff, who is respondent on this appeal. The suspension order previously made by appellant was based on a finding by ...
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57 Cal. App. 3d 223 (1976) 129 Cal. Rptr. 1 ROBERT BROWN, Plaintiff and Appellant, v. CITY OF BERKELEY et al., Defendants and Respondents. Docket No. 35371. Court of Appeals of California, First District, Division Two. April 12, 1976. *227 COUNSEL Carroll, Burdick & McDonough and Christopher D. Burdick for Plaintiff and Appellant. Donald P. McCullum and Lois L. Johnson, City Attorneys, Michae...
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Opinion Rick Mitchell Graham appeals a judgment following a jury trial in which he was convicted of second degree robbery (Pen. Code, § 211). He was sentenced to prison for the term prescribed by law. On September 15, 1973, Graham entered Bob’s Dari Fresh, looked around and left. He returned in a few minutes and shopped. Instead of paying after the sale had been rung up, he told the clerk “Pu...
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Opinion Commercial Standard Insurance Company (hereinafter “Surety”) appeals from an order of the trial court dismissing its second amended cross-complaint against Bank of America (hereinafter “Bank”) entered after Bank’s general demurrer to Surety’s cross-complaint was sustained without leave to amend. Pertinent Alleged Facts On August 17, 1972, Arnold R. and Mary Mendoza (...
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57 Cal. App. 3d 251 (1976) 129 Cal. Rptr. 139 THE PEOPLE, Plaintiff and Respondent, v. KEVIN PATRICK QUINN, Defendant and Appellant. Docket No. 14530. Court of Appeals of California, First District, Division One. April 13, 1976. *254 COUNSEL Lawrence R. Horn, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistan...
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57 Cal.App.3d 260 (1976) 129 Cal. Rptr. 143 THE PEOPLE, Plaintiff and Respondent, v. DOUGLAS McARTHUR WESTBROOK, Defendant and Appellant. Docket No. 26169. Court of Appeals of California, Second District, Division Four. April 13, 1976. *262 COUNSEL R.J. Williamson, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief As...
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Opinion Libardo Gurrola, a defendant, acting within the course and scope of his employment, was driving a pickup truck owned by his employer, California Date Growers Association, another defendant, when he collided with Fred Box, Jr., a motorcyclist and the plaintiff in this action. The accident occurred on February 10, 1971, at the intersection of Jefferson Street and Avenue 56 in an uni...
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Opinion California has provided a fund for limited reimbursement of parties defrauded by licensed real estate brokers or salesmen performing acts for which a license is required. (Bus. & Prof. Code, '§§ 10470-10483.) Reimbursement is granted only to one who has obtained final judgment against the licensee (§ 10471) and has been unable to satisfy the judgment. (§ 10472.) Recovery from the ...
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57 Cal.App.3d 282 (1976) 129 Cal. Rptr. 113 UNITED SAVINGS AND LOAN ASSOCIATION OF CALIFORNIA, Plaintiff, Cross-defendant and Respondent, v. REEDER DEVELOPMENT CORPORATION, Defendant, Cross-complainant and Appellant. Docket No. 46566. Court of Appeals of California, Second District, Division Four. April 15, 1976. *287 COUNSEL Sims & Solomon and Gabriel W. Solomon for Defendant, Cross-complain...
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*307 Opinion On appeal to this court the judgment in this case was reversed in part and affirmed in part by our decision and opinion filed October 6, 1975. The Supreme Court granted a petition for hearing; transferred the cause to that court; and, thereafter, retransferred the cause to this court for reconsideration in the light of In re Marriage of Brown, 15 Cal.3d 838 [126 Cal.Rptr. 633, ...
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Opinion J.— Defendant was charged with: (count I) unlawful sexual intercourse with Loren L., a female under the age of 18 years, in violation of section 261.5 of the Penal Code; (count II) commission of a lewd and lascivious act upon Loren L., a child under the age of 14 years, between October 6, 1972, and October 6, 1973, in violation of section .288 of the Penal Code; and (count III), unlawful s...
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Opinion Plaintiff, an importer of tires from Europe, has appealed from a judgment which denied it recovery of personal property taxes of $28,035.49 paid to defendant county under protest for the fiscal year 1972-1973. On appeal it contended that the goods assessed enjoyed an immunity from taxation under article I, section 10, clause 2 of the United States Constitution, 1 as interpreted in Br...
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Opinion Petitioner on October 2, 1973, was committed to Atascadero State Hospital pursuant to the provisions of section 1026 of the Penal Code, following a finding that he was insane at the time he committed an assault in violation of subdivision (a) of section 245 of the Penal Code. By his petition for habeas corpus he sought review of proceedings under subdivision (c) of section 7375 of the Wel...
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Opinion In this taxpayers’ suit, judgment was given in favor of defendants, supervisors and other officers of Contra Costa County. The taxpayers sought to invalidate an ordinance passed by the supervisors in 1974 which set the salaries of members of the board of supervisors at $14,282.80 per year, because a 1972 ordinance, passed by initiative in 1972 had fixed the salaries at $13,200 per year, an...
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57 Cal. App. 3d 347 (1976) 129 Cal. Rptr. 224 THE PEOPLE, Plaintiff and Respondent, v. JASON ARTHUR STROHL, Defendant and Appellant. Docket No. 27581. Court of Appeals of California, Second District, Division One. April 19, 1976. *351 COUNSEL Earl M. Price and Cheryl Krott for Defendant and Appellant. Stanley M. Roden, District Attorney, and Patrick J. McKinley, Deputy District Attorney, for Plai...
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Opinion Petitioner, County of Los Angeles Department of Adoptions, brought this action pursuant to Civil Code section 232.9, seeking to have minors Angelica G. and Rose G. *412declared free from parental custody and control.1 The petition, filed October 6, 1972, specifically relied upon subdivisions (a) and (b) of Civil Code section 232,2 and was opposed by the natural parents of the minors, Rafa...
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Opinion The People appeal a judgment following an order granting a motion to dismiss in favor of Harold Richard Moore, defendant. As required we recite the evidence most favorably to the prevailing party below. In March 1974 Moore was arrested on a minor drug charge. A beautiful investigator of the district attorney’s investigation unit, Ms. Casey, contacted him and solicited his cooperation in in...
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Opinion Defendants appeal from a peremptory writ of mandate and orders of contempt issued thereon. The present action was brought by respondents, the Healdsburg Police Officers Association and its nine individual members, against appellants, the City of Healdsburg, five city councilmen and the city manager. The facts reveal that three city police officers were summarily discharged by *449 a...
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57 Cal.App.3d 472 (1976) 129 Cal. Rptr. 205 THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO ALVARADO MATTA, Defendant and Appellant. Docket No. 2077. Court of Appeals of California, Fifth District. March 31, 1976. *475 COUNSEL Alan M. Caplan, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney Gen...
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Opinion Defendant was convicted by a jury of possession of heroin (Health & Saf. Code, § 11350). No finding was made as to two prior felony convictions. Proceedings were suspended. Defendant was placed on five years’ probation on various terms and conditions, including the service of nine months in jail, concurrently with jail time being served in an unrelated matter. Defendant appeals fr...
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Opinion The City of Duarte (plaintiff) 1 instituted two separate actions in the Superior Court of hos Angeles County to abate a public nuisance. Both actions were directed against Buena Vista Cinema, 2 a motion picture theater situated in the City of Duarte, where, according to the allegations of the complaint, obscene motion pictures were continuously exhibited. Case No. C107347 was base...
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Opinion June Zahn and Joseph Zahn, plaintiffs in an action instituted by a complaint captioned “Complaint for Personal Injuries, Negligence and Breach of Contractual Duty of Good Faith,” appeal from a summary judgment entered in favor of two named defendants —Richard Hartnett and Canadian Indemnity Insurance Company (Canadian). The litigation had its genesis in a collision between an...
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*517 Opinion Jerry Wayne Knight appeals a judgment entered on jury verdicts convicting him of three counts of first degree robbery (Pen. Code, § 211), one count of kidnaping (Pen. Code, § 207), and finding he used a firearm in the commission of all four offenses (Pen. Code, § 12022.5). Three prior felony convictions were alleged and proved, one of which was robbery committed with the use of a...
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Opinion The question presented in this proceeding is of constitutional dimensions; it is whether evidence adduced through the execution of a search warrant must be suppressed if the officer who procured the warrant intentionally withheld factual information from his supporting affidavit. We have concluded that the integrity of the judicial system must be preserved no matter how painful the result ...
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Opinion Appellant Jimmie Trammell appeals from a judgment of the Alameda County Superior Court after jury verdict notwithstanding *543 the verdict as to the punitive damages. Also the Western Union Telegraph Company appeals from the judgment against it. Issues Presented 1. Western Union’s liability was limited to $500. 2. The judgment notwithstanding the verdic...
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Opinion Alvin Wechsler sued defendant Home Savings and Loan Association (Home) and other defendants on various legal theories based on the alleged wrongful delivery by Home to the Internal Revenue Service (IRS) of trust accounts for which Wechsler was the trustee.1 Home denied the allegations in the complaint and alleged six affirmative defenses, including laches, estoppel, and the bar of title 2...
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Opinion Gwendolyn Maunder appeals an order denying her request for an increase in spousal support (Civ. Code, § 4801, subd. (a)). *572 In an interlocutory judgment of dissolution, Gwendolyn was awarded, among other things, child and spousal support and a community property interest in Donald’s retirement pay from the Navy. She is able to garnish his service pension to obtain unpaid child an...
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57 Cal.App.3d 574 (1976) 129 Cal. Rptr. 192 THE PEOPLE, Plaintiff and Appellant, v. ALFRED DAVID MEJIA, Defendant and Respondent. ALFRED DAVID MEJIA, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket Nos. 8081, 14473. Court of Appeals of California, Fourth District, Division One. April 22, 1976. *576 COUNSEL Edwin L. Miller, Jr., Distric...
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Opinion This is an appeal from an order determining the amount of inheritance tax liability resulting from the death of Edgar Olin Cooke (decedent). The controlling issue is whether Revenue and Taxation Code section 13409 (hereafter section 13409) permits avoidance of inheritance tax by a disclaimer of interest where decedent’s death occurred before the effective date of the section. 1 The ...
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Opinion United Farm Workers of America (hereinafter UFW) appeals from a preliminary injunction which placed limits upon the picketing of stores owned by certain named plaintiffs and by the class of persons identified as members of the California Retail Liquor Dealers Institute (hereinafter CRLDI). CRLDI is an association of retail liquor dealers whose stores are located throughout th...
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Opinion These appeals, with similar subject matter and issues, have been consolidated for the purpose of our consideration and disposition of them. Plaintiffs Eldridge and Beyer were the owners, respectively, of 750 acres and 22.27 acres of generally unimproved land in the foothills of the City of Palo Alto (hereafter the “City”). The City had enacted zoning ordinances which, among other things, ...
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57 Cal. App. 3d 656 (1976) 129 Cal. Rptr. 426 EARL BLAKE, Plaintiff and Appellant, v. GEORGE J. WERNETTE et al., Defendants and Respondents. Docket No. 15220. Court of Appeals of California, Third District. April 23, 1976. *658 COUNSEL Richard F. Mills for Plaintiff and Appellant. Wilke, Fleury, Hoffelt & Gray and Philip R. Birney for Defendants and Respondents. OPINION THE COURT.[*] Plaintif...
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57 Cal. App. 3d 662 (1976) 129 Cal. Rptr. 535 GARY C. ADEN et al., Petitioners, v. EVELLE J. YOUNGER, as Attorney General, etc., et al., Respondents. Docket No. 14407. Court of Appeals of California, Fourth District, Division One. April 23, 1976. *667 COUNSEL Kaminar, Sorbo, Andreen & Thorn, Robert Thorn and L. William McGrath, Jr., for Petitioners. Wainer & Stone, Arnold J. Stone, Ball, ...
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Opinion Appellants, claiming to be dependent parents, filed an action for damages for the wrongful death of their son, hereafter referred to as the decedent. As will be seen, the disposition of this appeal depends primarily upon the definition of the term “dependent parents” as formerly used in section 377 of the Code of Civil Procedure. 1 The action was consolidated with a s...
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Opinion The California Coastal Zone Conservation Commission appeals from a judgment which mandated it to grant an application by respondent Richard Davis for a permit to build a residence on property which lies within the coastal zone (Pub. Resources Code, § 27100). On May 7, 1974, respondent applied to the regional Coastal Zone Conservation Commission, Central Coast Region (“Regiona...
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Opinion Plaintiff Lee Soble appeals the dismissal of his action for malicious prosecution after the trial court sustained without leave to amend a demurrer of defendant Dee Jane Kallman to the amended complaint on the ground the action was barred by the statute of limitations. The amended complaint alleges that on 14 November 1968 Kallman, maliciously and without cause, commenced a c...
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Opinion In a complaint to foreclose a mechanic’s lien and for damages Ed’s Electric, Inc., alleged that at the special instance and request of defendant Ray Kinner it furnished labor and materials of the reasonable value of $39,063.72 for installation of electrical fixtures in a 27-unit apartment house on account of which it had been paid $31,492.43, leaving an unpaid balance of $7,571.29...
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Opinion Thomas P. Gonzalez (husband) seeks review of a judgment and an order made during the course of a dissolution of marriage proceeding initiated against him by Virginia Thorpe Gonzalez (wife). The judgment set aside the marital settlement agreement (agreement) executed by the parties on August 25, 1970, on the grounds that it *740had been signed by wife as a result of duress, mistake of fact,...
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Opinion By information, George William Roberts (hereinafter “defendant”) was charged with the October 5, 1974 robbery (Pen. Code, § 211) of Carla Jean Spencer. An amendment charged two prior felony convictions: an April 22, 1969, conviction of grand theft from the person (Pen. Code, § 487, subd. 2), and a May 13, 1969, conviction of robbery (Pen. Code, § 211). Defendant, out of the presen...
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Opinion The pivotal issue presented in this appeal is concerned with the treatment of a stepfather’s income in fixing the “liability” for a “medically needy family” under the California Medical Assistance Program, commonly known as Medi-Cal. A “liability” under that program, like a “deductible” in a private insurance policy, is that portion of the cost of medical care the medically needy family m...
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57 Cal. App. 3d 802 (1976) 129 Cal. Rptr. 351 In the Marriage of DEIRDRE AVRIL and CHARLES P. WALTER. CHARLES P. WALTER, Appellant, v. DEIRDRE AVRIL WALTER, Respondent. Docket No. 36423. Court of Appeals of California, First District, Division Four. April 29, 1976. *804 COUNSEL Graham, Gordon & McFarlan and Frederick T. Graham for Appellant. David N. Sandler and Robert Bennett McCreadie for R...
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57 Cal. App. 3d 809 (1976) 129 Cal. Rptr. 312 LORCO PROPERTIES, INC., Plaintiff and Appellant, v. DEPARTMENT OF BENEFIT PAYMENTS et al., Defendants and Respondents. Docket No. 47202. Court of Appeals of California, Second District, Division One. April 29, 1976. *811 COUNSEL David Silverton and S. Dwayne Chasteen for Plaintiff and Appellant. Evelle J. Younger, Attorney General, Philip C. Griffin a...
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Opinion This is an appeal from a judgment of conviction based upon a jury verdict finding defendant guilty of second degree robbery and of assault, and from an order revoking probation by reason of the conviction. Defendant contends that the 1974 amendment to the California Constitution incorporating a confrontation clause in section 15 of article I restricts the scope of Evidence Code section ...
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Opinion A tavern customer here sues a tavern keeper, alleging that the latter negligently sold him alcoholic beverages when plaintiff was obviously intoxicated, in violation of Business and Professions Code section 25602, causing his involvement in a later automobile collision with injury to himself. The trial court sustained the tavern keeper’s general demurrer without leave to amend. Plaintiff ...
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Opinion Plaintiff sued defendant for damages for injuries he allegedly sustained while working at defendant’s factory. Following a *880trial by jury, a verdict was returned against plaintiff and the trial court entered judgment accordingly. Plaintiff appeals from the judgment. Facts On March 30, 1972, plaintiff Christopher Drenzek (hereinafter “plaintiff”) slipped and fell during the course of ...
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57 Cal. App. 3d 883 (1976) 129 Cal. Rptr. 422 HENRY YOUNG, Petitioner, v. THE SUPERIOR COURT OF TULARE COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. 2923. Court of Appeals of California, Fifth District. April 29, 1976. *885 COUNSEL Charles B. Flood III, Public Defender, and Joseph A. Kalashian, Deputy Public Defender, for Petitioner. Evelle J. Younger, Attorney General, Jack ...
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57 Cal. App. 3d 889 (1976) 129 Cal. Rptr. 485 CITY OF LOS ANGELES et al., Plaintiffs and Respondents, v. INGERSOLL-RAND COMPANY, Defendant and Appellant. Docket No. 47303. Court of Appeals of California, Second District, Division One. April 30, 1976. *890 COUNSEL Burke, Williams & Sorensen and Carl K. Newton for Defendant and Appellant. *891 Burt Pines, City Attorney, Edward C. Farrell, Chief...
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57 Cal. App. 3d 896 (1976) 129 Cal. Rptr. 495 WILL BROWN, Plaintiff and Appellant, v. ALL AMERICAN CAB COMPANY, Defendant and Respondent. Docket No. 47621. Court of Appeals of California, Second District, Division Four. April 30, 1976. *897 COUNSEL Robert E. Perkins, Jr., for Plaintiff and Appellant. Francis Robert Bergmann and Stephen E. Cockriel for Defendant and Respondent. OPINION KINGSLEY, J...
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Opinion Leon Bronson Hentz (husband) appeals from an order denying his motion to modify spousal support for Shirley Ann Hentz (wife). The parties had been married for more than 22 years. They entered into a marital settlement agreement (agreement) soon after their separation. One of the paragraphs of the agreement provided as follows: “We agree that Leon, in fulfillment of his statutory obligat...
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*905Opinion Ernest Corda, as executor of the estate of William F. Corda, deceased, appeals after the court below entered an order overruling objections to the report of the inheritance tax referee and fixing the total inheritance tax due.1 The referee’s report resulted in an order there is inheritance tax due on the value of assets William F. Corda gave to his children and their spouses more tha...
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Opinion Barbara Bucquet, her husband Howard, and their children, who are the beneficiaries of an inter vivos trust, brought this action for legal malpractice against David Livingston, 1 an attorney who drafted the trust instrument for the settlors, Barbara’s parents, for the *917 purpose of minimizing all taxes payable on the death of both. This appeal i...
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Opinion This is an appeal from a declaratory judgment construing certain language in an inter vivos trust agreement. On June 27, 1923, Ida J. Moody (hereinafter “Mrs. Moody” or “trustor”) executed a trust agreement whereby she transferred to the trustee 5,000 shares of the capital stock of Moody Estate Company, a corporation. The net income from the triist was to be paid to the trustor for ...
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Opinion This suit arises from an automobile collision at a signal-controlled street intersection. Defendant was driving northward, but keeping his eye on a police vehicle behind him and ignoring the traffic ahead. According to uncontradicted evidence,, defendant was 250 to 400 feet south of the intersection when the traffic light changed from orange to red. Despite the signal, defendant c...
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Opinion On August 23, 1973, the California Highway Commission (“CHC”) approved construction of a state highway project (the “Pelendale Project”) in Stanislaus County. On October 18, 1974, the Department of Transportation, acting pursuant to the CHC authorization, awarded a contract in an amount exceeding $11 million for construction of the Pelendale Project in accordance with freeway stan...
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Opinion James Thomas Kasinger pleaded guilty to possession of heroin (Health & Saf. Code, § 11350). He has appealed from an ensuing order committing him for treatment as a narcotic addict. The sole issue on appeal is whether the court acted correctly in denying a motion to suppress the evidence upon which the charges were founded. Appellant was on probation for grand theft, subject t...
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*253 Opinion Factual History Charles S. Howard died in 1952 and his will was admitted to probate. The final distribution of the estate occurred years ago, but the probate court retained jurisdiction to oversee the administration of certain testamentary trusts. The will created nine such trusts. The assets of each included a one-ninth interest in a parcel of realty called the...
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Opinion Respondent H. E. Davis (Davis) purchasing agent for respondent County of Los Angeles (County) executed purchase agreements (agreements) with respondents Bio-Science Laboratories (Bio-Science) and Biochemical Procedures (Biochemical), who are real parties in interest (RPIs). Appellant, Advance Medical Diagnostic Laboratories (AMDL), in its capacity as a taxpayer (Code Civ. Proc. § ...
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*278 Opinion Plaintiffs who are the surviving widow and minor child of Ricky Dean Rose, deceased, appeal from a judgment of partial dismissal entered after the sustaining of a demurrer without leave to amend their complaint for wrongful death brought against defendant International Brotherhood of Electrical Workers, Local No. 11 (IBEW). The allegations of the complaint set forth that the de...
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Opinion Introduction The action in the trial court was for recovery of a deficiency judgment by the seller’s assignee against the buyers of three small aircraft after repossession and sale. Judgment was awarded the defaulting buyers on the theory that the transaction came under the Unruh Act which precludes deficiency judgments where the goods have been purchased for personal, family or house...
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Opinion This case was tried before a jury on a cause of action against all defendants alleging a conspiracy to defraud plaintiffs, and actual fraud and oppression in the sale by plaintiffs of certain real property to Joseph and Claire Anthony, and John and Gustine Weber. On November 2, 1973, the jury returned a verdict in favor of defendants Gustine L. Weber, and Sam and Joan Pizzill...
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Opinion Defendant appeals from a judgment entered on a jury verdict finding him guilty of possession of a destructive device in a “specified place” (Pen. Code, § 12303.2). 1 He contends that: l) the judgment was void on its face; 2) the court erred in instructing the jury as to the elements of Penal Code section 12303.2 and refusing his proffered instructions; 3) there was no e...
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Opinion The issue presented on this appeal is whether Labor Code section 450 prohibits an employer in the restaurant industry from requiring a minimum wage employee to take meals as part of his compensation and have the value of the meals deducted from the minimum wage without the written consent of the employee. We conclude that such action is prohibited. On August 26, 1974, appella...
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58 Cal.App.3d 349 (1976) 129 Cal. Rptr. 844 THE PEOPLE, Plaintiff and Respondent, v. RASTUS LEE HENDERSON, Defendant and Appellant. Docket No. 27459. Court of Appeals of California, Second District, Division Four. May 17, 1976. *351 COUNSEL Cornell R. Young for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistan...
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Opinion This is a People’s appeal pursuant to Penal Code section 1238, subdivision (a)(7), from an order dismissing the charges in a *365 prosecution for violation of Penal Code section 12021 (possession of concealable weapon by ex-felon) after the granting of defendant’s motion to suppress evidence. At 3:40 p.m. on December 30, 1974, Deputy Sheriff Patrick Walsh observed defendant and two ...
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Opinion Defendant was charged in two counts with possession for sale of heroin and possession for sale of marijuana (Health & Saf. Code, §§ 11351, 11359). The trial court dismissed all charges following the People’s refusal to disclose the identity of a confidential informant. The People appeal from the order of dismissal pursuant to Penal Code section 1238, subdivision (a)(8). *3...
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Opinion Dorothy Lee Caldwell and Ronnie Caldwell appeal from a judgment denying a writ of mandamus to compel respondent *379 municipal court to grant discovery in a pending misdemeanor case in which appellants are defendants. The charges against appellants are battery upon Officer Lance House of the Oakland Police Department (Pen. Code, § 243) and obstructing a police officer in the perform...
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*384 Opinion David Long appeals from a judgment denying a writ of mandamus to compel respondent municipal court to grant discovery in a pending misdemeanor case in which appellant is defendant. Appellant had presented in the municipal court a declaration in support of subpoena duces tecum, executed by counsel, in which it was related that appellant would plead self-defense to the charges of...
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Opinion The City and County of San Francisco, its board of supervisors, mayor, and certain city officials (hereafter sometimes appellants) appeal from a judgment granting a peremptory writ of mandate and a permanent injunction as prayed for in a complaint filed by the San Francisco Community College District (hereafter respondent). The judgment required that the mayor and board of supervisors incl...
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Opinion This is an appeal from a judgment denying a petition for writ,' of mandamus to direct respondent Regents of the University of California, to set aside the layoff of appellant, Leon Smith, to reinstate him, and to pay back salary. *400 I Appellant’s first contention on appeal is that the trial court erred in applying the substantial evidence test in reviewing the proceedings before...
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*408 Opinion Petitioners seek a writ of prohibition to restrain the Stanislaus County Superior Court from taking any further proceedings against petitioners on the ground that their motion to set aside the information (Pen. Code, § 995) was denied erroneously by Judge Frank Pierson because petitioners were prevented from challenging a search warrant pursuant to Penal Code section...
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Opinion Plaintiffs and appellants, pursuant to Code of Civil Procedure section 1094.5, petitioned the Superior Court in and for *418 the County of Santa Clara for a writ of mandate requesting the court to command the respondent Board of Supervisors of the County of Santa Clara to rescind, void, and annul its resolution of January 23, 1974, granting minor land division approva...
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Opinion This petition for a writ of prohibition is directed to an order of the Superior Court of Solano County permitting a jury trial in a suit for damages brought under Code of Civil Procedure section 871.1 et seq. by a good faith improver of land owned by petitioner. Real parties filed a complaint alleging that they occupied Southern Pacific property along the Vallejo waterfront for ma...
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Opinion L. Gene Allard sued the Church of Scientology for malicious prosecution. Defendant cross-complained for conversion. A jury verdict and judgment were entered for Allard on the complaint for $50,000 in compensatory damages and $250,000 in punitive damages. Judgment was entered for Allard and against the Church of Scientology on the cross-complaint. Defendant-cross complainant appeal...
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Opinion In a first amended information defendant Juan Loya Salas was charged with robbery of Guadalupe Garcia Escobar in violation of section 211 of the Penal Code. It was also alleged that defendant committed the offense with intent to inflict injury, and that he inflicted great bodily injury on the victim. (See Pen. Code, § 213.) In a trial by jury defendant was found guilty. The jury also found...
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Opinion This is an appeal from a jury’s award of both compensatory and punitive damages for abuse of process. All three defendants, Maria Elena H. Molina (hereinafter referred to as Molina), Robert K. Yeaton (hereinafter referred to as Yeaton), and Maria Guadalupe Stevens (hereinafter referred to as Stevens) appeal from a judgment rendered after the jury feturned the following verdic...
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*495 Opinion Plaintiff, Police Officers’ Association of Huntington Beach, sought a writ of mandate in the court below to compel the City of Huntington Beach, its councilmen and chief of police to reinstate a four-day, ten-hour-day work week schedule (“Ten-Plan”) for police personnel and to meet and confer in good faith with respect to any proposed changes in the schedule. Followi...
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Opinion Plaintiffs appeal from a judgment which determined that a covenant contained in deeds requiring membership in a homeowners’ association is enforceable as a covenant running with the land. Statement of Facts Plaintiffs are homeowners in the subdivision project of “Glenbrook Hills,” a residential community composed of 525 individual lots with a single family dwelling o...
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*515 Opinion Petitioner appeals from a judgment denying his petition for a writ of administrative mandamus. (Code Civ. Proc., § 1094.5.) On May 17, 1974, pursuant to Government Code section 11503, an accusation was filed by the Department of Real Estate (Department) charging that petitioner had knowingly created a subdivision within the meaning of the Business and Profession...
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Opinion The question to be decided is whether a notice of motion for leave to amend a complaint, accompanied by a proposed pleading of a second and distinct cause of action not previously pleaded, stops the running of the statute of limitations as to the cause pleaded for the first time in the amendment. We have concluded that under the facts of this case the action on the second cause wa...
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Opinion This is an appeal from a judgment entered pursuant to an order granting a motion for summary judgment on a cross-complaint for express indemnity. Facts The facts are substantially as set forth in appellant’s brief: Sometime prior to June 1, 1967, Western Contracting Corporation (Western), acting *536 as a general contractor, entered into a written contra...
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Opinion There are many facets to what starts out as a simple matter. On July 18, 1975, John William Shute filed a petition for writ of habeas corpus in the Supreme Court of California, praying for a credit of 385 days presentence commitment time. The petition states Shute was an inmate of the California Medical Facility at Vacaville, California. On October 30, 1975, the Supreme ...
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Opinion This is a consolidated action upon thirteen installment notes, each executed by one of six defendants. The sole issue tried was whether or not the plaintiff was a holder in due course. The trial court, sitting without a jury, gave judgment for plaintiff, from which defendants appeal. The notes involved here were executed between August and November 1969 and are a part of a la...
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Opinion In August of 1972, the Hollywood Turf Club (Club) contracted with Montgomery Elevator Company (Montgomery) whereby Montgomery agreed to perform service and maintenance work on the escalators at the Club’s race track premises. On April 14, 1973, a malfunctioning of one of those escalators occurred, whereby several patrons of the Club were injured. They sued both the Club and Montgo...
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Opinion Respondent was arrested on February 18, 1974, at 2:26 p.m. in Oxnard for violating section 23102 of the Vehicle Code. 1 He refused to take a field sobriety test. When booked at the police station at 3 p.m., he was advised pursuant to section 13353 that he must take one of the tests either blood, urine, or breath. He elected urine and was escorted to the urinal by one of the arresting ...
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Opinion Defendants Michael Townsend and Margaret Torma appeal an order denying their petition to stay proceedings and compel arbitration 1 in an action brought by plaintiffs Pacific Investment Company, a limited partnership doing business as Pacific Gardens, Todd Schiffman, Larry Larson, Donald and Leonard Olds, Smile Peres, Hugh Rouse, and Robert Dahl. The primary issue i...
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Opinion Richard O. Carlson and Neill V. Barton are charged with two counts of grand theft (Pen. Code, § 487.1) and one count of conspiracy to cheat and defraud (Pen. Code, § 182, subd. 4). They have petitioned this court for a writ of prohibition or mandate under Penal Code section 1538.5, subdivision (i), after denial of their motion to suppress evidence seized in the search of Carlson’s...
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Opinion After a joint trial, appellants Ronnie Lynn Westmoreland, Charlene Sue Easley and Shirley Ellen Bramlette were convicted by a jury of kidnaping for the purpose of robbeiy with bodily injury (Pen. Code, § 209), robbery in the first degree (Pen. Code, §§ 211, 211a) and assault with intent to commit murder (Pen. Code, § 217). Appellants have appealed from the judgments entered on the jury’...
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*53 Opinion The issue is whether a class action plaintiff may dismiss the action without court approval. More specifically, the issue is the validity—as applied to this case—of rule 470 of the Class Action Manual of the Los Angeles Superior Court, which directs the county clerk not to process requests for dismissal of class actions without such approval. We hold that a ...
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*88Opinion Appellant Robert William Lyon was charged in the municipal court with various misdemeanor offenses. On September 10, 1975, a hearing was held on petitioner’s motion to suppress evidence pursuant to Penal Code section 1538.5. The court took the motion under submission and on October 16, 1975, entered the following minute order: “Motion to suppress is granted. Court finds there was probab...
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Opinion This mandamus petition is brought by and on behalf of applicants for and recipients of general assistance in the five counties whose welfare departments are headed by the named respondents, seeking review of the hereinafter described eligibility practices of such *94departments which petitioners claim are violative of Welfare and Institutions Code section 11005.5.1 2 Welfare and Instituti...
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Opinion Petitioner appeals from a judgment denying her petition for writ of mandate to compel respondent (director) to dismiss a scheduled rehearing after the director rendered a decision in favor of petitioner on a claim for alleged overpayment of Aid to Families with Dependent Children (AFDC) benefits. The pertinent facts are as follows: Sometime before August 14, 1...
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Opinion Appellant Welsh, by her guardian, filed a petition for peremptory writ of mandate (Code Civ. Proc., § 1094.5) to challenge an unfavorable interpretation by the State Department of Health relating to her eligibility for medically needy only (MNO) benefits under the Medi-Cal program. The interpretation in question applied a pro rata formula to the value of the encumbrance on appellant’s hom...
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Opinion On this appeal from an order revoking probation, appellant does not dispute that there was sufficient evidence to support the trial court’s finding that he had committed a violation of the conditions of probation, to wit, that he possessed heroin. He assigns as error, however, the court’s alleged failure to exercise its discretion in deciding two questions: (1) whether to revoke probati...
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Opinion Petition for writ of habeas corpus was filed by a prisoner at the California Medical Facility at Vacaville, seeking an order striking *134 from the abstract of judgment reference to a prior felony conviction, and modifying his sentence from 10 years to life by reducing it to 5 to 15 years for a violation of section 11500.5 (now § 11351), Health and Safety Code. On November 1, 1973, ...
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Opinion This is an appeal from the trial court’s judgment denying a petition for leave to present a late claim, pursuant to Government Code 1 sections 911.4 and 946.6. The background facts disclose that on August 29, 1969, the minor appellants, Orrin Ivan Carr, Jr., (“Orrin”), Michael R. Carr (“Michael”), *142 Gaiy Carr (“Gary”), and Steven Carr (“Steven”) and...
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Opinion The Sierra Club appeals from a judgment denying relief from a determination by respondent California Coastal Zone Conservation Commission that part of a development proposed by respondent Half Moon Bay Properties, Inc. (hereinafter “HMBP”) is exempt from the commission’s control. HMBP had claimed exemption from the requirement of obtaining a permit for development within the ...
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Opinion Petitions were filed alleging that Dawn O., Kathleen O., and Gypsy S.1 come within the provisions of Welfare and Institutions *162Code section 600, subdivisions (a) and (d). The trial court found that the minors fall within subdivisions (a) and (d) of section 600.2 The mother of all three children and the father of Gypsy appeal from the order exercising jurisdiction over the children. Fact...
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Opinion In consolidated cases Mario Burguno Castaneda appeals the judgment and “eveiy intermediate order made therein” after a jury trial convicting him of possession of cocaine (Health & Saf. Code, § 11350), possession of cocaine for sale (Health & Saf. Code, § 11351), and possession of heroin for sale (two counts; Health & Saf. Code, § I1351). 1 *168 Viewed in a li...
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*176 Opinion This dispute involves the construction and lease of a parking structure adjacent to the One Wilshire Building. The parties are S. Jon Kreedman & Co., a developer; Meyers Brothers Parking-Western Corporation, which leases and operates public parking garages, and Westgate-California Realty Company, also a developer. Kreedman filed a declaratory relief action against Me...
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Opinion Defendants Department of General Services and Department of Parks and Recreation (the State), and officials of those departments, William Zell, William Penn Mott, Jr., and Robert H. Meyer, appeal a judgment of the superior court which enjoins them from approving or carrying out any project or development at Topanga Beach, from demolishing any structures there located, and from evicting ...
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Opinion These are petitions brought by Security Pacific Bank, a testamentary trustee, to have determined the identity of beneficiaries of two testamentary trusts—the Marian Huntington Fund and the Residuum Fund—both established by the will of Hemy E. Huntington, and for instructions. Claiming to be the beneficiaries are John Brockway Huntington and Elizabeth Anne Huntington Davis, the adopted chi...
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*214 Opinion This is a shareholders’ derivative action brought by two shareholders of Exxon Corporation (“Exxon”) against Exxon and its wholly owned subsidiary, Esso (Argentina), Inc. (“Esso”); and the directors and officers of Exxon who allegedly authorized and paid a $14.2 million ransom for Victor Samuelson, a corporate executive, kidnaped by Argentine terrorists. All dir...
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Opinion Petitioner seeks a writ of habeas corpus, alleging that the requirement that he serve a minimum of 10 years in prison without possibility of parole for the crime of sale of heroin to a minor, with one *224prior felony narcotic conviction (Health & Saf. Code, § 11502—now § 11353), is cruel and unusual punishment. (Cal. Const., art. I, § 17.)1 Ruben Venegas, a 17-year-old minor, together wi...
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*233 Opinion Appellant was indicted on September 3, 1974, for the murder of his wife, Maiy Jo, on or about October 18, 1972. He was arraigned and pleaded not guilty. Jury trial commenced November 10, 1974, and on December 12, 1974, the juiy found appellant guilty of murder in the first degree. He was denied probation and sentenced to the term prescribed by law. Because we have concluded tha...
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Opinion On this appeal by the Danville Fire Protection District from a judgment after a court trial in two consolidated matters, 1 the main question is whether the district was entitled to enforce against the builders the heat, smoke and sprinkler system requirements of its Ordinance No. 5 that are more stringent than those of the Uniform Building Code adopted by the county pur...
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*Supp. 3Opinion We here reverse defendant’s conviction resulting from his plea of guilty of a violation of Vehicle Code section 23123. We hold that the plea was coerced because of the trial court’s arbitrary refusal to exercise its discretion whether defendant, unable to raise bail, should be released upon his own recognizance. I Facts Defendant was charged in count I of a complaint with a misdeme...
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Opinion The People have appealed the order of the trial court setting aside the forfeiture of bail and exonerating the bail bond. Factual Background1 Sharon Sue Portrey was released on bail on July 15, 1974, pending hearing on a fugitive complaint. Her preliminary examination was set for August 15, 1974. On that date she appeared and the matter was continued to October 11, 1974. Upon her failure t...
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*611 Opinion Effective December 25, 1968, National American Life Insurance Company issued a decreasing term policy of insurance on the life of A. F. Silva of 1405 Louise Avenue, Modesto, California. The policy was written in conjunction with a mortgage loan. The monthly loan payments, payable in advance to the lender Western Mortgage Corporation included the premium for the insur...
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Opinion Following trial by jury defendant was convicted of murder in violation of Penal Code section 187, which was found to be in the second degree. The allegation of use of a firearm was found to be true. He was sentenced to state prison and now appeals from the judgment. *623 Facts In view of the contentions made on appeal a plenary statement of the facts surrounding this sordid affa...
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Opinion In a personal injury action by John Kellums against Robert Balzer and Warrens Automotive Service, the defendants filed a cross-complaint for declaratory relief against 20th Century Insurance Company. The cross-complaint alleged: cross-complainant Warren Westerholm operates, in Glendale, a garage known as Warrens Automotive Service; Westerholm owned a 1957 Chevrolet automobile whic...
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Opinion Joseph and Gigii Hecton appeal the judgment of dismissal after the trial court sustained without leave to amend the demurrer of the People of the State of California acting by and through the Department of Transportation, to their complaint for damages for diminution in value of property due to condemnation of adjacent properties for construction of a freeway. The first amend...
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Opinion Plaintiff appeals from a summary judgment in favor of defendant. The ruling on the motion for summary judgment was based on a stipulation of the following facts. Defendant, while traveling on Interstate 405 (San Diego Freeway) was involved in a collision with another vehicle. Defendant was intoxicated and his negligence was the cause of the accident. Shortly after the ac...
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*693 Opinion Plaintiff Debtor Reorganizers, Inc. appeals from a summary judgment in favor of defendant in plaintiff’s action to recover use taxes in the sum of $27,905.60 paid by plaintiff’s assignor Fat Jones Stables, Inc. (hereinafter referred to as “Stables”), in respect of which a claim for refund was made by Stables and denied by defendant board. The taxes in question were f...
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Opinion Petitioner Lompoc Federation of Teachers, Local 3151, AFT, AFL-CIO (hereinafter “petitioner”) appeals from a judgment denying its petition for writ of mandate. The petition sought a.writ directing respondents Lompoc Unified School District and Governing Board of the Lompoc Unified School District (hereinafter “District” and “Board”) to pay teachers in grades 4, 5 and 6 (hereinafte...
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*719 Opinion Appellant Marian J. Castle entered into a contract with respondent, H. L. Maddy, doing business as Apex Bonded Builders and Bonded Contractors. The contract contained an arbitration clause. After work had been done under this contract, a balance of $350 remained unpaid. Maddy made no request for arbitration under the contract but, instead, instituted a small cla...
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Opinion The City of Pleasanton (hereinafter “the City”) appeals from a judgment which (1) requires it to perform certain obligations assumed by it in a series of written contracts providing for the *729 annexation of lands to it, and (2) awards accrued and ongoing damages, to respondent Morrison Homes Corporation, for the City’s breach of the obligations. Facts ...
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Opinion On September 18, 1974, petitioner was sentenced to state prison upon his bargained plea of guilty to a violation of section 11352 of the Health and Safety Code (sale of a controlled substance). Two alleged prior convictions were stricken. Petitioner took no appeal. At the time of sentence section 11352 required that a person convicted thereunder without prior convictions be imprisoned...
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Opinion A final judgment of dissolution was entered on July 19, 1972. Thereafter on December 17, 1974, husband filed his order to show cause petition for termination of spousal support. On March 19, 1975, the court ordered termination of spousal support as well as restitution of spousal support payments made by husband after June 29, 1973. The modification and restitution orders were...
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Opinion In the second cause of action 1 of her complaint against Great Western Savings and Loan Association (respondent), appellant, Linda Bass, alleges that she was one of nine sale persons concurrently working in the same capacity for respondent (the other eight being men). The eight men received a monthly advance of $800 against their *772 commissions but she re...
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Opinion By information defendant Baeske was charged with robbery in violation of Penal Code section 211. It was alleged that defendant was armed with a deadly weapon at the time of *778 the commission of the offense within the meaning of Penal Code sections 3024 and 12022. It was also alleged that defendant used a firearm within the meaning of Penal Code section 12022.5. Defendant, represen...
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Opinion Statement of the Case On January 31, 1973, plaintiffs filed a complaint for the value of goods and materials sold and delivered for use in the construction of a service station and restaurant and to enforce mechanics’ liens on the land on which the service station and restaurant were constructed. Defendants Vernon Freeman, Jr., Betty J. Freeman, Elbon Corporation and Elbon La...
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Opinion Statement of the Case A petition under Welfare and Institutions Code section 602 was filed in the juvenile court on May 15, 1975, alleging that appellant, age 17, had committed a battery and felonious assault on the persons of others. At the jurisdictional hearing the referee found that appellant had committed an assault with force likely to produce great bodily injury in *803violation of ...
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Opinion An Alameda County ordinance, and administrative regulations adopted as “interpretations” thereof, purport to apply special standards of eligibility, for General Assistance welfare payments, to residents of the county described as “young adults.” Jeffrey Bernhardt and Harvey Drobenare appeal from a judgment which upholds the validity of the ordinance and regulations and denies appellants...
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Opinion Respondent Carmel Valley View, a limited partnership, obtained from the superior court a writ of mandate directing the *820 planning commission and the Board of Supervisors of the County of Monterey (appellants) to approve a tentative subdivision map. The present appeal followed. Respondent sought approval of a tentative subdivision map for a development called “...
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Opinion The claimants against a contractor’s license bond (Bus. & Prof. Code, §§ 7071.5-7071.14) appeal from an order awarding the interpleading surety its costs and attorneys’ fees out of the penal sum of the bond. Plaintiff Sweeney, as administrator of five labor-management trust funds for operating engineers, sued defendant McClaran, a contractor, for employee fringe benefit payments which McC...
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Opinion Petitioner made application for writ of prohibition/ mandate with due notice to real party in interest, and real party in interest has filed opposition. We have determined that an alternative writ or order to show cause would add nothing to the full presentation already made, and that, in light of the circumstances, a peremptory writ is proper (Code Civ. Proc., § 1088; 5 Witkin, Cal. Proce...
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Opinion This is an appeal from an order allowing a debtor’s claim of homestead exemption to the proceeds of a sale of homestead property. Creditor contends that the trial court erred in not charging against the portion of the fund subject to the exemption real estate commissions payable upon the sale of the real property and in not thereby reducing the exempt portion of the fund by the amount o...
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*868 Opinion The State Personnel Board (Board) appeals from a judgment of the superior court ordering the issuance of a peremptory writ of mandate. The writ commands the Board to set aside and reconsider its decision affirming petitioner Wilson’s dismissal from employment. Wilson, a fish and game warden in the Santa Cruz area, was dismissed on January 21, 1968, after 21 years with the Fish ...
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Opinion Tyrone B., a minor, appeals from an order committing him to the California Youth Authority after he was found guilty of *886attempted armed robbery, in violation of sections 211a and 663 of the Penal Code; assault with intent to commit murder, in violation of section 217 of the Penal Code; and murder, in violation of section 187 of the Penal Code. Appellant’s sole contention on appeal is t...
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Opinion This is an action for refund of personal property taxes paid by the plaintiff corporation under protest. (See Rev. & Tax. Code, § 5136 et seq.) The complaint sought a refund of taxes assessed by the defendant county for the taxable year 1972-1973 and also for refund of escaped tax assessments levied and collected by the defendant for the taxable years between 1968 and 1972. (See R...
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*902 Opinion Introduction The action in the trial court was by the beneficiaries of a purchase-money deed of trust against the trustors to recover damages for alleged “willful” waste of the grapefruit orchards and vineyards covered by the deed of trust. Suit was filed after the plaintiffs had bought in the security noted at a nonjudicial foreclosure sale for less than the fu...
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Opinion On November 18, 1974, a three-count information was filed in the Superior Court for the County of Kern, charging appellant, Richard John Wachter, 1 and his wife, codefendant Victoria Colleen Wachter, with violations of Health and Safety Code sections 11358, 11357 and 11364. On April 1, 1975, defendants filed a motion in the Kern County Superior Court to set aside and dismiss the inf...
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Opinion This is an appeal from a judgment denying the issuance of a peremptory writ of mandamus commanding respondent California Department of Human Resources Development (the Department) to reverse decisions of the California Unemployment Insurance *927Appeals Board which denied the petitioners’ claims for unemployment insurance benefits. Facts The 10 individual petitioners are all members of t...
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Opinion Real party in interest William Richard Hardin has been convicted of driving while under the influence of alcohol in San Mateo County three times within the last three years. As a result of these convictions, petitioner, the Department of Motor Vehicles, was prepared to effect the mandatory revocation of Hardin’s driver’s license pursuant to Vehicle Code section 13352. Hardin filed a pet...
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Opinion Frederick Millen (hereafter petitioner) appeals from the refusal of the trial court to overturn the decision made by the Director of the State Department of Social Welfare in 1973 (hereafter Director) denying petitioner’s application for aid for the needy disabled. Petitioner’s first contention is that the Director lacked power to decide the case at the time of his decision. ...
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Opinion Plaintiffs and appellants appeal from a judgment of dismissal of the action of the Santa Clara County Superior Court entered after an order sustaining respondent’s demurrer without leave to amend. Issues Presented 1. Respondent is not liable to appellants for permitting Tate to drive without public liability insurance. 2. Respondent is not liable to appellants for e...
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Opinion Edward Louis Green, defendant, appeals a judgment after jury trial convicting him of assault (Pen. Code, § 240) and mayhem (Pen. Code, § 203). On April 20, 1975, Green struck his best friend John Williamson in the right eye with a machete. The blow knocked Williamson down and caused extensive injuries to his eye, which Green claims are insufficient to support a conviction of mayhem. ...
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59 Cal.App.3d 5 (1976) 130 Cal. Rptr. 416 FRANK C. MERLO, an Incompetent Person, etc., Plaintiff and Respondent, v. STANDARD LIFE AND ACCIDENT INSURANCE COMPANY OF CALIFORNIA, Defendant and Appellant. Docket No. 13895. Court of Appeals of California, Fourth District, Division Two. June 11, 1976. *10 COUNSEL Edward L. Lascher for Defendant and Appellant. Hews & Munoz, Hews, Munoz & Robinso...
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Opinion Plaintiff suffered serious bodily injuries when a 1965 Corvette automobile driven by Gary Donald Lewis collided with plaintiff’s car. Lewis, the driver of the Corvette, was killed in the collision. He had been the managing employee of John’s Gulf Station in Brea, where Gary M. Gregory, the owner of the Corvette, had left it for repair. Prior to commencing the present action, ...
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Opinion The State of California acting by and through the Department of Transportation (hereinafter “Department”) initiated this action to compel defendant Hadley Fruit Orchards, Inc. (hereinafter “Hadley”) to remove seven outdoor advertising displays (billboards) pursuant to the Outdoor Advertising Act (Bus. & Prof. Code, § 5200 et seq.) and for a declaration that Hadley was not entitled...
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*60Opinion Plaintiff appeals from a judgment in an action for breach of contract that awarded it less than the amount sued for. For the reasons set forth below, we affirm the judgment. Plaintiff is in the business of leasing computer equipment. Defendant is a major user of such equipment. On October 5, 1972, the parties entered into an agreement whereby plaintiff leased to defendant, for a period...
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Opinion Levi A. Jefferson appeals a judgment denying a writ of mandate which would set aside a determination of the California Unemployment Insurance Appeals Board (Board) disqualify *75 ing him for unemployment compensation benefits. Jefferson attacks the applicability and constitutionality of Unemployment Insurance Code section 1256.1, which was the basis for his disqualification. The fac...
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*82 Opinion Phillip Roger Watts appeals a judgment entered on jury verdicts convicting him of assault with a deadly weapon (Pen. Code, § 245, subd. (a)) and first degree burglary (Pen. Code, §§ 459, 460). Before trial Watts admitted one prior felony conviction. The contested issues on appeal are (1) whether the failure of the court properly to instruct the jury on diminished capacity due to...
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Opinion This action was brought by the appellant on behalf of herself and all others similarly situated for declaratory and injunctive relief against the respondents. On May 4, 1973, appellant filed a complaint for declaratory and injunctive relief challenging the validity of respondents’ policy of excluding from its housing projects families whose heads of household are not related by blood,...
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Opinion Statement of the Case and Facts On October 6, 1972, appellant Eric Bahten (herein plaintiff), a student at the Los Banos High School, was severely and permanently disabled as the result of injuries sustained by him while participating as a representative of his school in a football game against a team from another high school. His parents did not seek legal advice until almos...
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59 Cal.App.3d 130 (1976) 130 Cal. Rptr. 411 ROBERT OLIVA, an Incompetent Person, etc., et al., Plaintiffs and Respondents, v. DAVID B. SWOAP, as Director, etc., Defendant and Appellant. Docket No. 14455. Court of Appeals of California, Third District. June 15, 1976. *132 COUNSEL Evelle J. Younger, Attorney General, Elizabeth Palmer, Assistant Attorney General, N. Eugene Hill, John Fourt and James...
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Opinion Petitioners are the defendants in a pending legal malpractice action brought against them by the real party in interest. The background of that lawsuit and of the present petition for writ of mandate is as follows: Real party and one McReynolds, both physicians, were sued for medical malpractice by one Burke. Real party and McReynolds were both insured by Pacific Indemnity Company which...
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Opinion Plaintiffs Joyce Gibbs, Gordon Eby and Mildred Cunningham sought a writ of mandate directing the City of Napa, and *151 certain of the city’s officials, not to proceed with a proposed initiative election sponsored by Citizens Against the Destruction of Napa, an unincorporated association, Lawrence Friedman and Arthur Stewart, Jr. (hereafter “interveners”). The interve...
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59 Cal.App.3d 158 (1976) 130 Cal. Rptr. 524 JOHN J. BOZZO et al., Plaintiffs and Appellants, v. BRUCE M. JACOBS, as Executor, etc., et al., Defendants and Respondents. Docket No. 38081. Court of Appeals of California, First District, Division Three. June 16, 1976. *159 COUNSEL Morgan, Beauzay, Hammer, Ezgar, Bledsoe & Rucka and Ann M. Ravel for Plaintiffs and Appellants. Coughlin, Wyckoff, Pa...
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*167 Opinion Introduction The action in the trial court sought a writ of mandate on behalf of a cable television franchisee of the City of San Clemente (“City”) to compel the City to raise the rates which the franchisee could charge subscribers for its cable TV service. The trial court denied the petition, and the appeal is from the judgment which was entered on such denial....
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Opinion Following a jury trial appellant, George Manriquez, was found guilty of first degree robbery. (Pen. Code, § 211a.) This appeal is from the judgment. On May 13, 1975, at 11:50 p.m., the victim, Enrique Cervantes, was in a telephone booth in a Safeway parking lot in the area of 25th and Pasadena Avenue in the City of Los Angeles. Completing the phone call, he walked to his car. Appellan...
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59 Cal.App.3d 434 (1976) 130 Cal. Rptr. 642 OUTBOARD MARINE CORPORATION et al., Petitioners, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; CORINNE E. BOYD et al., Real Parties in Interest. Docket No. 15731. Court of Appeals of California, Third District. June 23, 1976. *436 COUNSEL Johnson, Greve, Clifford & Diepenbrock, Claire H. Greve and Lawrence A. Wengel for Petitioners. No app...
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Opinion This appeal involves the propriety of respondent’s assessment of $37,031.97 in ad valorem personal property taxes on *448 imported tires owned by appellant and stored in two warehouses in Kings County on March 1, 1971. Appellant claims immunity from the tax under the import-export clause of the United States Constitution (art. I, § 10, cl. 2). The trial court held that the tires had l...
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Opinion Defendant has appealed from a judgment which became final after plaintiff,- in conformance with the trial court’s order on defendant’s motion for new trial, accepted a reduction to $280,000 from a jury verdict which awarded her $362,389.75 damages for injuries suffered as a result of an automobile collision. Defendant contends: (1) that the trial court erred in three particulars i...
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59 Cal.App.3d 493 (1976) 130 Cal. Rptr. 626 AMERICAN AND NATIONAL LEAGUES OF PROFESSIONAL BASEBALL CLUBS, Plaintiff and Appellant, v. MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION, Defendant and Respondent. Docket No. 37297. Court of Appeals of California, First District, Division Three. June 25, 1976. *495 COUNSEL Iverson, Yoakum, Papiano & Hatch, Neil Papiano, Dennis A. Page, Donald M. Robbins ...
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*518 Opinion The Case Employee/plaintiff/appellant Fred H. Hone (hereinafter employee and/or plaintiff) on March 11, 1970, filed a complaint for personal injuries based on negligence and strict liability against third-party defendant/respondent Climatrol Industries, Inc., a corporation (hereinafter third party and/or Climatrol). The complaint alleged that on March 24, 1969, ...
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Opinion Defendant was charged with robbery (§ 211, Pen. Code) and three counts of assault with a deadly weapon (§ 245, subd. (a), Pen. Code) and, in connection with each count, that he used a firearm within the meaning of section 12022.5, Penal Code. The People appeal from *534 order of dismissal based upon order granting motion to suppress pursuant to section 1538.5, Penal Code. On April 2...
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Opinion After trial by the court, plaintiffs appeal from a judgment that they take nothing from defendant in their action for damages and declaratory and injunctive relief. Defendant is a federal savings and loan association chartered by the Federal Home Bank Board (“board”) and is subject to the board’s regulations. (12 U.S.C. §§. 1462, 1464; see generally, Woodard v. ...
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Opinion Petitioner Juanrico Henreid seeks a writ of mandate requiring respondent court to grant his petition for a rehearing as to his status as a conservatee under the Lanterman-Petris-Short Act (hereinafter the “Act,” or the “LPS Act”). 1 In a petition filed pursuant to the Act, it was alleged that petitioner was “gravely disabled” within its meaning. (§§ 5008, subd. (h), 5...
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Opinion The sole question presented by this appeal is whether the failure of the breath test to strictly comply with the calibration procedure of Administrative Code section 1221.4, subdivision (b)1 rendered the results of the test .inadmissible in evidence against appellants, who were each charged with violation of Vehicle Code section 23102, subdivision (a). We conclude that it did not. Breath ...
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Opinion Richard Alan Demond appeals his conviction of murder in the first degree (Pen. Code, § 187). The Facts In September 1974, defendant Demond rented an apartment in a building managed by Cathleen Passen and told her that he would be living there with his girlfriend and her two children. On September 16, defendant Demond moved in with Lola Weisbach and her two children: three-year-old Robin an...
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Opinion Ralph Coffee appeals from a judgment approving the adoption of his minor son, James Coffee, by Maurice Carter, the boy’s stepfather. Carter’s amended petition for adoption, filed January 17, 1975, 1 alleged: he and Jacqueline Carter, James’ mother, were married April 15, 1972; formerly she was married to Ralph Coffee, James’ father; that marriage was dissolved by a fjnal decree of d...
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Opinion This case arose out of the respondent Subriar’s operating an ambulance business in the City of Bakersfield without first having obtained a certificate of convenience and necessity as required by chapter 7.62 of the Bakersfield Municipal Code. Respondent Subriar on two different occasions filed applications for obtaining a certificate. At the time of respondent’s first application ...
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Opinion Douglas Robert Williams was convicted by a municipal court jury of violating Penal Code section 647, subdivision (a), which punishes as a misdemeanor any “lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.” We view the evidence, as we must, in the light most favorable to the judgment. Long Beach Police Officer Richard A. Rose ob...
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Opinion Petitioner Margaret M. Ames appeals from an interlocutory judgment of dissolution of marriage, excepting that portion which dissolves the marriage. Respondent is George M. Ames. Margaret challenges: (1) the spousal support orders and various items in the community property division, including (2) the trial court’s failure to consider and divide all of George’s pension rights, and (3) th...
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Opinion Defendant, Sue Cohen, was charged with grand theft in taking property—books—worth more than $200 from the Los Angeles County Library. 1 She was convicted by a juiy and placed on five years’ probation on condition that she spend seven months in jail. Facts Stated briefly, defendant, using one of three library cards, checked out a substantial number of books from the county library....
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*253 Opinion Plaintiff, a working wife and mother, was denied unemployment insurance compensation. She charges that the disqualification statute unconstitutionally discriminates against female workers. The statute, section 1264 of the California Unemployment Insurance Code, disqualifies any person leaving his or her job because of marital or domestic duties and who does not supply the family’...
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*264Opinion Plaintiff appeals from the order of the San Francisco Superior Court granting defendant’s motion to quash the writ of attachment. Issue Presented Respondent was not engaged in a trade or business and hence the trial court properly quashed the writ of attachment upon his real property. Record On March 7, 1975, plaintiff and appellant Shaw, Hooker and Co. filed a complaint for damages i...
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59 Cal.App.3d 270 (1976) 130 Cal. Rptr. 548 THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; HERSHEY HAROLD FELMANN, Real Party in Interest. Docket No. 48302. Court of Appeals of California, Second District, Division One. June 18, 1976. *272 COUNSEL John K. Van de Kamp, District Attorney, Donald J. Kaplan, Harry B. Sondheim and Eugene D. Tavris, Deputy District Att...
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Opinion Afton Kirby appeals from an order fixing inheritance tax, and from an order denying her objections to report of inheritance tax referee,1 made in the matter of the estate of her deceased husband, Josh Kirby. Only the order fixing inheritance tax is appealable. (Prob. Code, § 1240; Estate of Johnston (1970) 12 Cal.App.3d 855, 858 [91 Cal.Rptr. 116].) Accordingly, the purported appeal from ...
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Opinion On October 2, 1975, Union Oil Company of California (Union) petitioned the superior court for mandamus relief under Code of Civil Procedure section 1094.5 after an adverse decision made September 25, 1975, by the Air Pollution Control District of San Diego County Hearing Board (Hearing Board). The action seeks (1) a declaration rules 61 1 and 63 2 of the dist...
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Opinion This is an appeal by the People from the dismissal of an action for perjury (Pen. Code, § 118), following the granting of a motion pursuant to Penal Code section 995. The charge of perjury contained in the information was based upon the allegedly false testimony of defendant in the trial of a civil action in the Superior Court of Contra Costa County entitled Simmons v. Southern Pac...
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Opinion During 1973 and 1974 appellant Louis John Arrieta lost substantial sums of money (assertedly, $35,000) by extensive and continuous speculation on margin in silver futures. He sued his stockbrokers, respondents Paine, Webber, Jackson & Curtis, Inc., and their account executives Sterling Clark and William C. Robbins, Jr., for negligence, fraud, breach of fiduciaiy duty, conversion, ...
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Opinion Petitioner, a law firm, seeks review of an order of the board denying its petition for reconsideration of that portion of an award allowing $2,250 for legal services rendered to its client, a claimant for workers’ compensation benefits. Petitioner represented Harry Schneiderman, a claimant who allegedly sustained injury to his heart arising out of and occurring in the course of his em...
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*360 Opinion Appellant, Richard Michael Moody, appeals from the judgment entered on a jury verdict finding him guilty of burglary in the first degree. (Pen. Code, § 460.) On May 30, 1975, 15-year-old Colleen G. was employed as a babysitter at a home in Arcadia, California. At about 11 p.m., Colleen and the four children she was babysitting fell asleep in the front room while watching televi...
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59 Cal.App.3d 364 (1976) 130 Cal. Rptr. 615 COUNTY OF SANTA BARBARA, Plaintiff and Respondent, v. CITY OF SANTA BARBARA, et al., Defendants and Appellants. Docket No. 46928. Court of Appeals of California, Second District, Division Four. June 22, 1976. *367 COUNSEL Wilson, Jones, Morton & Lynch and Robert G. Auwbrey for Defendants and Appellants. George P. Kading, County Counsel, and Don H. V...
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Opinion Statement of the Case Appellants filed against the respondent Kern County Board of Supervisors a petition for writ of mandamus and complaint for injunctive and declaratory relief on behalf of themselves and all other persons similarly situated, alleging that they represented the responsible relatives of indigent county hospital patients and the patients themselves, and challe...
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*415 Opinion Plaintiffs Eusebia Gardiana and Jesus Gardiana appeal from certain portions of the judgment of the Alameda County Superior Court. Real party in interest County of Alameda and respondent the Small Claims Court of the San Leandro-Hayward Judicial District appeal from the judgment. Issues Presented 1. The court did not err in authorizing the use of volunteer i...
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Opinion In early 1974, defendants Cotton, Zegler, Simmons and Brinker were separately charged in the Municipal Court of the San Diego Judicial District with violating Penal Code section 270 (willful *604 failure to provide for minor children), a misdemeanor. One attorney was appointed to represent all of them. After their challenges to the constitutionality of Penal Code section 270 were reje...
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Opinion In consolidated actions to recover taxes paid under protest plaintiff prevailed. County appeals, contending that the taxpayer failed to exhaust its administrative remedies before the county board of supervisors sitting as a board of equalization. The facts are undisputed. Plaintiff bank was the lessee of an IBM data processing unit which is five feet high, six feet long, two ...
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Opinion Petitioner, a deputy public defender, represented Jimmy Ray Harris, defendant in the trial of a criminal prosecution for violation of sections 459, 261.3 and 288a, Penal Code, before a commissioner sitting as judge pro tempore with a jury, commencing in March 1976. At the close of the People’s case, and on March 26, the district attorney moved to discover certain material gathered by th...
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*624 Opinion The plaintiffs in two consolidated actions to recover damages for wrongful death have appealed from a judgment for the defendant State of California (hereinafter the State) rendered after the trial of the issue raised by the State’s affirmative defense of immunity pursuant to Government Code section 830.6. 1 (Code Civ. Proc., § 597.) The deaths were caused by the collapse in th...
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Opinion In these consolidated actions plaintiffs seek a declaration that defendants hold certain Kern County real property in *636 trust for them and for an order compelling transfer of legal title and possession thereof to them or, in the alternative, a judgment for monetary damages. The gravamen of the actions lies in breach by defendants of an alleged oral agreement to refrain from competi...
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Opinion Petitioner, the compensation insurer, contends that respondent Norma Jo Bate, the applicant in the underlying compensation proceeding, was not an employee at the time of her injury. *650 The compensation judge characterized her as a “substitute” employee and held her injury compensable by analogy to Laeng v. Workmen’s Comp. Appeals Bd., 6 Cal.3d...
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Opinion This is an appeal from a judgment denying the issuance of a peremptory writ of mandate which affirmed a decision of the Board of Administration, Public Employees’ Retirement System (Board), respondent, terminating appellant Alanson P. Cansdale’s (Cansdale) disability retirement. *660 On May 4, 1968, Cansdale received a disability retirement as a state traffic officer with the Califo...
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Opinion This is an appeal from a judgment denying petitioner’s amended petition for writ of mandamus which sought to command the respondent Southgate Recreation and Park District (div. 5, ch. 4, Pub. Resources Code) to provide statutory “relocation benefits” to petitioner, because he was forced to vacate his rented residence by action of the respondent. On April 25, 1972, respondent district ...
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Opinion Appellant had a written contract with respondent The San Francisco Newspaper Printing Company, Inc., (hereafter Printing Company) for the distribution of the San Francisco Chronicle in an area of Marin County. Respondent Printing Company terminated the contract and demanded return of the customer list. Appellant refused to comply with this demand unless paid $10 per name. Printing...
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Opinion William Thomas appeals from a judgment denying his petition for a writ of mandate to compel the Department of Motor *734 Vehicles and its director “to collect the taxes, license and registration fees and penalties due to the State of California ... on all vehicles owned and operated by state and national banks since December 24, 1969.” 1 Hist...
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Opinion This appeal from an adjudication of delinquency pursuant to Welfare and Institutions Code section 602 asserts that there should be a judicially declared evidentiary privilege exercisable by a child to prevent disclosure by his parent of communications made in the course of the parent-child relationship. Concluding that the privilege is not constitutionally required and is contrary to ex...
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Opinion The People appeal the dismissal in an amended information of a count which charged that defendant Karl Andrew *753 Smith “did . . . with malice aforethought murder a human.fetus.” (Pen. Code, § 187.) 1 Defendant was charged in three other counts with assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)); wife-beating (Pen. C...
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I concur. In view of the fiduciary obligation of named plaintiffs to unnamed plaintiffs in a class action (see La Sala v. American Sav. & Loan Assn., 5 Cal.3d 864, 871 [97 Cal.Rptr. 849, 489 P.2d 1113]; Marcarelli v. Cabell, 58 Cal.App.3d 51, 54 [129 Cal.Rptr. 509]; L.A. Super. Ct., Manual for Conduct of Pretrial Proceedings in Class Actions, § 470; 15 Marshall, Cal. Practice, App., p. 475), it is...
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Opinion Defendant was charged with burglary, in violation of section 459 of the Penal Code. After his motions under sections 995 and 1538.5 of the Penal Code were denied, 1 he pled guilty to burglary in the first degree. He was sentenced to state prison; he has appealed; we affirm the judgment. I Defendant was arrested, without a warrant, in his own home, on the basis of information given...
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Opinion This is an appeal by plaintiff from a judgment for defendant. *786Plaintiff married Diedre Jackson in 1967. Four to six months later she left him. They never resumed a husband and wife relationship after that time. Plaintiff never obtained a divorce from Diedre. On May 31, 1974, plaintiff filed a complaint alleging that from 1969 to June 9, 1973, plaintiff and defendant, Carolyn Banister W...
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Opinion This is an appeal by plaintiff-appellant Harry W. Brainard (Brainard) from a judgment on a verdict in favor of defendant-respondent Georgia Cotner (Cotner). Statement of Facts On many of the material issues, the facts are in dispute. We begin by stating the facts that are undisputed, with a follow-up of the facts that are in dispute. The undisputed facts: Brainard (an attorney at ...
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*800Opinion Petitioner, executor of the will of Angelen Gendian Razian, filed a petition for a decree determining the interests in decedent’s estate. Its purpose was to determine whether decedent’s surviving husband, Onig (Bill) Razian, had forfeited his interest in the estate under a no-contest clause in the will. The probate court found that Razian had contested decedent’s disposition of her es...
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*810 Opinion Defendant (appellant) appeals from a conviction of violation of Penal Code section 487, subdivision 2, grand theft from a person. In an information filed April 23, 1975, appellant was charged with two violations of the law. Count I charged a violation of-Penal Code section 487, subdivision 2, and count II alleged violation of Penal Code section 496, receiving stolen property. T...
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*834 Opinion Upon appellant’s pleas of not guilty and not guilty by reason of insanity to a charge of murder (Pen. Code, § 187), the trial judge, sitting without a jury, found him guilty of the lesser included offense of voluntary manslaughter and sane at the time of the commission of the offense. He was sentenced to state-prison. The offense occurred on January 26, 1971. The three-week tri...
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Opinion Douglas John Landers pleaded guilty to the crime of robbery (Pen. Code, § 211). The court suspended imposition of sentence and granted probation for three years. Later, Landers admitted violating probation; probation was revoked; and he was sentenced to prison for the term prescribed by law for second degree robbery, which is one year to life (Pen. Code, §§ 213, 671). Landers contends...
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Opinion In this action for declaratory relief, plaintiff State Farm Mutual Automobile Insurance Company (hereafter State Farm) appeals from a judgment which decreed that appellant was obligated to provide coverage to one Bardelmeier as a permissive user of an automobile under a policy issued in favor of respondent Hartle. The facts of the case are not in dispute. The question presented is: Does...
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Opinion Plaintiff, Liberty Mutual Fire Insurance Company (hereafter Liberty) appeals from an adverse judgment in its subrogation action against defendant, Auto Spring Supply Company (hereafter Auto) and Henry Beacham. The appeal lies (Code Civ. Proc., § 904.1, subd. (a)), but we find no reversible error and will therefore affirm. *863 Facts On May 26, 1968, a fire damaged a building in Pi...
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*876 Opinion The consolidated cases at bench arise out of action by the City Council of Rolling Hills Estates vacating a public street and providing for its future relocation in order to permit development of a 14*/2-acre shopping center. Streets and Highways Code section 8323 provides that a city street may be vacated only if after a public hearing on notice “the city counc...
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Opinion The mother of a minor appeals from orders of the superior court, declaring her son to be a ward of the juvenile court and placing him in a camp program. For the reasons set forth below, we affirm the orders. I We deal, first, with a procedural matter. The record on appeal treats the case as an appeal from an order of Referee Garfinkle; the People’s brief treats it as an appeal from an ord...
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*906 Opinion This is an appeal from a judgment granting plaintiff A. H. Robins Company, Incorporated, a corporation (hereinafter “Robins”), a peremptory writ of mandamus commanding the Director of Health Care Services (then Earl W. Brian, M.D.) to set aside his decision dated June 15, 1970, which found Robins to be in violation of Welfare and Institutions Code section 14053.5. Th...
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Opinion The San Diego County Superior Court granted Avelino Cabe Doliente’s petition for a writ of mandate, requiring San Diego County (County), a subdivision of the State of California, to continue him as a County employee, and holding unconstitutional two penal provisions in the county charter limiting county employment to United States citizens. The County appeals the judgment. Sections 41 and ...
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Opinion This petition for extraordinary relief presents the question of the duty of a trial court to conduct a special hearing on motions to suppress evidence made pursuant to Penal Code section *931 1538.5, subdivision (g), after felony charges had been reduced to misdemeanors pursuant to Penal Code section 17, subdivision (b)(5), notwithstanding the fact that motions to suppress evidence ma...
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Opinion Statement of Case Heggblade-Marguleas-Tenneco (HMT) filed a complaint for breach of two contracts against Sunshine Biscuit, Inc. The complaint alleged the contracts were entered into on October 15, 1970. One contract was with Blue Bell Potato Chip Company to deliver 5,000 cwt. sacks of Kennebec potatoes between May 15 and July 15, 1971, at $2.35 per bushel and $2.60 per sack....
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Opinion This appeal concerns a determination whether the timber harvesting operations carried on pursuant to the Z’berg-Nejedly Forest Practice Act of 1973 (Pub. Resources Code, 1 § 4511 et seq.) (“Forest Practice Act”) and the Forest Practice Rules (Cal. Admin. Code, tit. 14, § 911 et seq.) (“Rules”) are subject to the provisions of the California Environmental Quality Act of ...
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Opinion This appeal represents but one more unsuccessful effort to evade the clear statutory provisions which make workers’ compensation procedures the sole remedy of an employee against his employer in industrial injury cases. Both plaintiffs were employed by defendant International Manufacturing Company, whose president, Jacuzzi, is joined as a defendant. Each complaint alleges that plainti...
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Opinion On April 29, 1970, plaintiff George Bussell gave a check to one Vernon Wilson who owned a parcel of real property in the Lake Tahoe area. The check was to purchase fee simple title to the property. However, at the request of Wilson, the check was made out by Bussell to the Tahoe Title and Guarantee Company to pay off an obligation secured by deed of trust on the property. Wilson t...
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Opinion After a trial by juiy, defendant was found guilty of possession of heroin (Health & Saf. Code, § 11350), possession of amphetamines (Health & Saf. Code, § 11377), and possession of a sawed-off shotgun (Pen. Code, § 12020). Facts On May 19, 1974, defendant was arrested at his place of residence for an offense unrelated to the charges from which he appeals. At the time of ...
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Opinion Plaintiff, American Medical International, Inc., a California corporation, sought partition of certain real property through judicial sale. Named as defendants were their coowners, Jack D. Feller and Mollie P. Levin. Defendants answered the first amended complaint, denying that plaintiff had grounds for the relief sought by denying some of plaintiff’s allegations and alleging cert...
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*9 Opinion Defendant and his wife were charged with the murder of Leichen, their 29-month-old daughter. The jury acquitted the wife and found defendant guilty of involuntary manslaughter, a lesser included offense. Defendant appeals from the judgment. Medical examinations during Leichen’s lifetime, as well as a postmortem, revealed a variety of external bruises and scars, skull fractures, r...
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Opinion Malcolm B. Furtado (“plaintiff”) brought this action seeking a declaration of liability against Metropolitan Life Insurance Company, Inc. (“Metropolitan”) based upon a policy of life insurance on the life of plaintiff’s son, under which plaintiff was the named beneficiary. Following a trial by the court, judgment was rendered in favor of Metropolitan. Plaintiff appeals from the ju...
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*41 Opinion Petitioner originally petitioned this court for a peremptory writ of mandate commanding respondent court to grant his motion to quash the service of summons upon him on the ground of lack of jurisdiction. On March 10, 1976, we denied without opinion his petition. On April 8, 1976, the Supreme Court granted his petition for hearing 1 and retransferred the matter to this court for...
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I concur in the majority conclusion that plaintiffs failed to plead a loss of consortium. I would go one step further and hold that loss of consortium is not compensable in an action based on a manufacturer’s or retailer’s strict liability. The history and rationale of strict product liability in California deals with compensation for personal injuries. It is premised on the social policy that phy...
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Opinion Votaw Precision Tool Co., Inc., a California corporation (appellant), appeals from a judgment denying its request for declaratory relief against Air Canada, a corporation (respondent). On or about July 17, 1970, Air Canada contracted with Inca Engineering Company (Inca) whereby Inca agreed to supply respondent with a thrust bed and adapter (thrust bed) to enable respondent to measure ...
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60 Cal. App. 3d 58 (1976) 131 Cal. Rptr. 318 ADAH T. LAYTON, Plaintiff and Appellant, v. MERIT SYSTEM COMMISSION OF THE CITY OF POMONA, Defendant and Respondent. Docket No. 47831. Court of Appeals of California, Second District, Division Four. July 14, 1976. *60 COUNSEL LeMaire, Faunce & Katznelson, Edward L. Faunce and Eric L. Jones for Plaintiff and Appellant. Patrick J. Sampson, City Attor...
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Opinion This is an appeal from an order denying a modification of child custody. The instant case arises between former husband and wife and concerns custody of their 14-year-old son John. Pursuant to a dissolution action, custody of the boy was awarded to wife apparently with summer visitation in the father’s home. In the instant proceedings father sought, by way of modification, to have J...
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Opinion By a jury’s verdicts defendant Bennett was convicted of first degree murder, and found to have been armed with a deadly *116 weapon and to have used a firearm in the commission of the offense. He appeals from the judgment which was thereafter entered on the verdicts. Four contentions of error are made. Bennett made no denial of the commission of the act of homicide; his defense was ...
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Opinion This action involves a constitutional attack by plaintiff, Pacific Gas and Electric Company (hereinafter “PG&E”) upon section 605 of the Berkeley Election Reform Act of 1974. That section prohibits any “proprietorship, firm, partnership, joint venture, syndicate, business trust, company, corporation, or labor union” from making a contribution to “any candidate or committee.” Elsew...
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60 Cal. App. 3d 130 (1976) 131 Cal. Rptr. 256 DONALD JAMES ANDERSON, Plaintiff and Respondent, v. ROBERT C. COZENS, as Director, etc., et al., Defendants and Appellants. Docket No. 47441. Court of Appeals of California, Second District, Division One. July 15, 1976. *132 COUNSEL Evelle J. Younger, Attorney General, and Melvin R. Segal, Deputy Attorney General, for Defendants and Appellants. Edward...
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Opinion The question to be decided is the timeliness of a petition to revoke probate of a will and codicils which, under Probate Code section 380, must be filed “within four months after such probate.” In this case “such probate” was reflected in the minutes of the probate court for January 13, 1975, and by an “order for probate” signed by the judge dated and filed January 23, 1975. The p...
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*163 Opinion Petitioners, who are property owners in the Consolidated Sewer Maintenance District, Trancas Zone (“Trancas Zone”) of Los Angeles County, sought a writ of mandate to review a tax rate order issued by the state Controller, who was named as respondent. Real party in interest is the Los Angeles County Board of Supervisors, which is the governing board of Trancas Zone. T...
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Opinion This is an appeal by the executrix from an order fixing the inheritance tax in the matter of the estate of Anna E. Allgeyer, deceased. *171The primary issue in this case is whether the decedent’s power to invade the corpus of a trust for her “reasonable support, care and comfort” is a general power of appointment subject to inheritance tax under section 13692 of the Revenue and Taxation Co...
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Opinion This is an appeal from a superior court judgment which set aside approval of the appellants’ tentative map by the Richmond City Council and which enjoined any development on the site in question. Under established principles, judicial review in such cases is limited to determining whether substantial evidence supports the findings of the city council and whether the findings suppo...
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Opinion Plaintiff J. G. Ferguson Publishing Company (hereinafter referred to as Ferguson), an Illinois corporation, commenced an action in Los Angeles Superior Court against defendants Universal Programming, Inc. (hereinafter referred to as UPI), a California corporation, and First National Bank of Boston, Inc. (hereinafter referred to as *190the Bank), a Massachusetts corporation. Ferguson appea...
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Opinion The matter at bench is an appeal from a judgment for defendant in a personal injury action. It involves the novel issue of the collateral estoppel consequences of a finding iri a workers’ compensation proceeding that an employee was engaged in the scope of his employment when injured, to a later civil action in which a third party injured in the same occurrence as the worker asserts the1 ...
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Opinion Plaintiff Stadium Concessions, Inc. of California, a corporation, brought this action against the County of Los Angeles and the City of Los Angeles (pursuant to Rev. & Tax. Code, § 5138) to recover taxes paid under protest, after certain purported “possessory interests” (Rev. & Tax. Code, § 107) had been assessed by defendant County of Los Angeles. Trial was by the court, sitting ...
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Opinion Defendant, 20 years old at the time of the commission of the crime, was convicted of first degree murder. (Pen. Code, § 187.) No “special circumstances” which, if found true, would have made the death penalty mandatory, were charged. (Pen. Code, § 190.1-190.2.) Trial was to the court. On appeal, defendant urges (1) that the evidence was insufficient to support the conviction; and (2) ...
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*236 Opinion Paul C. Sievert and Michael D. Leggett, doing business as Sievert-Leggett Medical Transfer (Sievert-Leggett), plaintiffs, appeal the granting of a judgment on the pleadings in favor of the City of National City, defendant. Sievert-Leggett’s motion for summary judgment was denied. The facts are not in dispute. Sievert-Leggett operates a state-licensed ambulance service based in ...
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*240 Opinion This appeal requires an examination of the nature of the interests created by a deed executed in 1943 by the executrix of the will of Anita M. Baldwin, granting to Jack M. Sickler certain described real property “excepting and reserving” oil and gas rights, to expire in 20 years or later if production continued in paying quantities. In 1967 Sickler’s successors deede...
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*Supp. 3Opinion The Legislature has declared a strong public policy against the use of speed traps. It has provided (I) that no peace officer or other person shall use a speed trap to enforce the Vehicle Code or to secure evidence of speeding for the purpose of arrest or prosecution (Veh. Code, § 40801;1 (2) that where evidence is obtained as a result of a speed trap it shall not be admissible (§ ...
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*247 Opinion Petitioner Donna M. Slattery (“claimant”) appeals from a trial court judgment in favor of respondent California Unemployment Insurance Appeals Board (“Board”) denying her petition for writ of mandate to compel the Board to set aside its decision denying her unemployment insurance benefits. Facts Claimant, who at the time was working in Los Angeles as a switchboard operator, w...
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*255 Opinion Petitioner Philip Wright appeals from portions of an interlocutory judgment of dissolution of marriage. Respondent is Jane Wright. Facts The parties were married in 1957 and separated in March 1973. Jane, a housewife, was 37 years old, and Philip, a surgeon, was 39 years old when they separated. They have four children, bom in 1958, 1961, 1963, and 1966. The couple met when...
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Opinion Plaintiff Abbott Power Corporation (hereinafter “plaintiff”) appeals from an order of the trial court quashing service of summons upon defendant Uhl & Lopez Engineers, Inc. (hereinafter “Uhl & Lopez”). (See Code Civ. Proc., § 904.1, subd. (c).) Procedural Background In a complaint filed March 21, 1975, plaintiff sued defendant Overhead Electric Company (hereinafter “...
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Opinion Pursuant to remand and mandate for further consideration from the United States Supreme Court on its per curiam decision of April 19, 1976 (425 U.S. 268 [47 L.Ed.2d 780, 96 S.Ct. 1530]), the above entitled matter, first decided by this court on June 24, 1975 (49 Cal.App.3d 778 [123 Cal.Rptr. 160]), is again before us. Accordingly, our prior opinion is vacated for the reasons set f...
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Opinion Appellant Nicki Newby brought suit against the owners and the managers of the Alto Riviera Apartments in Palo Alto seeking declaratory relief, an injunction and damages in connection with alleged threats by defendants to evict appellant from her apartment. The action was tried simultaneously to a jury as to legal causes of action and to the court as to the causes of action for an ...
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Opinion These consolidated property damage cases arise out of flooding which occurred in January 1969 at an industrial park area in the City of Torrance. Plaintiffs Tri-Chem, Inc., and Taco Bell filed actions for damages against defendants City of Torrance [“City”], County of Los Angeles and Los Angeles County Flood Control District [“County”] on theories of inverse condemnation, negligent de...
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Opinion Pursuant to Business and Professions Code section 10176, subdivision (g), 1 the California Real Estate Commissioner suspended the real estate broker’s license of Rylander & Company Realtors, Inc., a corporation (hereafter “petitioner”), for a period of 15 days. A petition for a writ of administrative mandamus was then filed to test the validity of the commissioner’s dec...
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Opinion The Pinheiros appeal from a judgment of dismissal entered, in favor of respondent County of Marin, following the granting of a demurrer without leave to amend. Appellants contend that their complaint states a viable cause of action in inverse condemnation. They argue that the rezoning of their property was for the purpose of acquiring open space at no cost to the county, and that the effe...
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Opinion Petitioners, Transamerica Development Company and its wholly owned subsidiaiy Diamond Bar Development Corporation, seek a writ of mandate commanding respondent Superior *332 Court of Los Angeles County to vacate its order of November 26, 1975, denying petitioners’ motion for partial summary judgment and instead to grant the motion. 1 Petitioners assert th...
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Opinion Marilyn Iris Hoffee (hereinafter “wife”) appeals from an order denying her requests that Marvin Dale Hoffee (hereinafter “husband”) be compelled to execute an assignment of wages to secure payment of support arrearages and to pay interest on the arrearages which have accrued according to the terms of a decree of marital dissolution. No contention has been presented concerning the ...
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Opinion Plaintiff Helen Lee Lucas brought an action against the City of Long Beach and Sergeant C. V. Riley, a member of that city’s police department for the wrongful death of her 17-year-old son Stephen. A jury returned a verdict in favor of plaintiff for the sum of $40,500. Defendants appeal from the judgment entered on the verdict. At about 1:15 a.m., on August 20, 1971, two patr...
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Opinion The State of California (“State”) seeks a writ of prohibition to restrain the Yuba County Superior Court from proceeding with a wrongful death action. The State contends that the court order granting discovery was in excess of jurisdiction or an abuse of discretion, on the *355 following bases: (1) the real party in interest (Clark) failed to comply with discovery pro...
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Opinion By an information dated August 20, 1974, appellant was charged with a felony violation of Health and Safety Code section 11352: *375 sale of heroin. On August 21, 1974, appellant was arraigned and private counsel William A. Hill was appointed to represent him. On August 23, 1974, appellant pleaded not guilty to the crimes charged and dates were set for both"pretrial conference and tri...
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60 Cal.App.3d 383 (1976) 131 Cal. Rptr. 804 CITY OF SAN MARCOS, Plaintiff and Respondent, v. CALIFORNIA HIGHWAY COMMISSION et al., Defendants and Appellants. Docket No. 38132. Court of Appeals of California, First District, Division One. July 22, 1976. *387 COUNSEL Harry S. Fenton, Emerson Rhyner, John B. Matheny and O.J. Solander for Defendants and Appellants. *388 Thomas H. Crawford and Richard...
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Opinion Jean McGhee, Huston and Leola Abrams, and Patrick A. and Pamela J. Mannerino appeal from orders in their respective cases which result in the denial of certification of each case as a class action. In both McGhee v. Bank of America, 1/Civil 37611, and Mannerino v. Wells Fargo Bank, 1/Civil 37613, the trial court granted respondents’ moti...
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*455 Opinion Ray Ellison, on behalf of himself and other property owners, boat owners, and taxpayers within the Portobello Maintenance District and the Ventura Port District, sued the City of San Buenaventura and the County of Ventura for injunctive relief and damages for interference with easement rights to the waterways of the districts. The trial court sustained without leave to amend demu...
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Opinion Kendall-Brief Company (“petitioner”) has petitioned this court for a writ of mandate commanding the respondent Orange County Superior Court to expunge the lis pendens recorded by real parties in interest on petitioner’s real property. The primary issue for decision is whether the existence or nonexistence of an easement of right-of-way over a servient tenement affects title to or ...
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Opinion This is an action by the co-executors of the estate of W. A. Klepper, deceased, to recover the proceeds of a credit life insurance policy issued by Standard Life Insurance Company of Indiana on the life of the decedent. On the basis of the express provisions of the policy and pursuant to statutory directive, we have concluded that the trial court was correct in denying recovery. The f...
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Opinion The Governing Board of the Middletown Unified School District appeals from a judgment directing issuance of a writ of *478 mandate compelling the reemployment of respondent Barton as vice-principal of Middletown High School for the 1975-1976 academic year. The court found that respondent could not be dismissed or reassigned to a teaching position without having been g...
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Opinion In this appeal from an order granting a preliminary injunction we are presented basically with one fundamental question: In rendering medical services to industrially injured employees may a treating physician lawfully charge the employee for any amount in excess of that paid by the employer or its workers’ compensation insurance carrier? As we shall explain, the answer to this in...
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Opinion The record before us discloses that James M. and Laura Rose were married on June 30, 1948, in New York. On February 4, 1966, Laura and James executed a property settlement agreement and that marriage was subsequently dissolved. *495 On or about June 30, 1966, James married Sandra H. Rose in Beverly Hills, California. On March 23, 1970, James quitclaimed to Sandra Rose as her sole an...
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Opinion The Director of the state Department of Public Health is required to adhere to the Administrative Procedure Act (specifically Gov. Code, §§ 11420-11427) in adopting rules and regulations establishing the rates which the state will pay for health care supplied to Medi-Cal patients. (Welf. & Inst. Code, §§ 10553.1, 10554, 10554.1, 14105, 14124.5; California Assn. of Nursing Ho...
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Opinion This appeal is frohi a judgment of the Superior Court in and for the City and County of San Francisco granting a peremptory writ of mandate directing the San Francisco Board of Permit Appeals (herein “Board”) and Central Permit Bureau (herein “Bureau”) to revoke a building permit issued to appellant Nob Hill Park, Ltd., a limited partnership. The permit related to the proposed erection ...
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Opinion Introduction Following a nonjury trial on plaintiff-respondent Richard W. Eastwood’s (hereinafter plaintiff), five-count complaint, the trial court *525 ruled in favor of defendant-appellant Kent Froehlich, as executor under the will Of Bruce E. Lewis, deceased, upon all counts except the fourth. This fourth count sought recovery • for violation of the California...
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Opinion Plaintiff Perry Buccery appeals from a judgment in favor of defendants General Motors Corporation and Champion Chevrolet 1 rendered upon granting of defendants’ motions for nonsuit. Plaintiff’s complaint sought damages for personal injuries arising out of a rear-end collision in which his Chevrolet LUV (Light Utility Vehicle) pick-up truck was struck by a Chevrolet...
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Opinion Petitioner, Pacific Lighting Leasing Company, seeks a writ of mandate requiring respondent Superior Court of the State of California for the County of Los Angeles to vacate its order of March 16, 1976, requiring petitioner to make available for inspection and/or copying on March 22 and March 23, 1976, certain personal property lease files of petitioner, its corporate articles, byl...
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*571Opinion Convicted of two robberies, defendant appeals, asserting admission of evidence illegally seized. Testimony on defendant’s motion to suppress evidence (Pen. Code, § 1538.5) showed that' Officer Lopez, on patrol at 1:58 a.m., stopped defendant’s car because hie knew a traffic warrant for defendant’s arrest was outstanding. The officer confirmed that the warrant was still in effect. As he...
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Opinion This is an appeal from a judgment of dismissal entered after respondents’ (hereinafter collectively identified as Dean Witter) general demurrer to appellant’s complaint (amended per stipulation) was sustained without leave to amend. The appeal lies. (Code Civ: Proc., § 904.1, subd. (a).) Facts 1 On September 12, 1975, one of the individual respondents, Paul Dubow...
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Opinion This is an appeal from a judgment of dismissal following the court’s sustaining, without leave to amend, defendants’ general *585 demurrer to the fifth, sixth, seventh, eighth, ninth, and tenth causes of action of the first amended complaint. The factual allegations of the first amended complaint are as follows: Plaintiff Norma Jean Vescovo is the wife of plainti...
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*610 Opinion Defendant Duane Van Perry appeals from a judgment of conviction entered on a jury verdict finding him guilty of first degree robbery (Pen. Code, § 211) with a prior felony conviction. His sole contention challenges the propriety of the trial court’s admission of opinion testimony that defendant was the man depicted on a motion picture film of the robbery. On the day of the robb...
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*620 Opinion This is an original proceeding in mandamus to compel the Superior Court of Orange County to vacate its order directing destruction of a quantity of magazines and related printing equipment and to require respondent court to order' the materials returned to petitioners. Background The pertinent events leading to the institution of the instant proceeding were as follows: On M...
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*637 Opinion Plaintiff appeals from a judgment quieting title to real property in favor of defendants. Donald C. Philbrick was the assessee of the subject property prior to its conveyance to defendants on September 21, 1973. Philbrick died on October 20, 1967. On June 4, 1969, the office of the Tax Collector of Mendocino County mailed a certified envelope addressed to “Donal...
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*667 Opinion The case at bench reaches us by way of a judgment of dismissal terminating the action as to the respondent-defendants after their demurrer to plaintiffs’ fifth amended complaint was sustained without leave to amend. The complaint asserts causes of action on behalf of the appellant-plaintiffs against respondent-defendants on theories of fraudulent misrepresentation and intentional...
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*677 Opinion The case at bench involves construction of an exclusionary clause of an all risk homeowner’s policy of liability insurance. The clause reads in pertinent part: “[T]his Policy does not apply . . . under [the all risk homeowner’s coverage] to the ownership, maintenance, operation, use, loading or unloading of.. . automobiles ... while away from the premises . . . .” Applying tradit...
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Opinion Writ proceeding. The Municipal Court for the Los Angeles Judicial District appeals from a judgment of the superior court which ordered the municipal court to hear a case within the jurisdiction of the municipal court. *684 Facts The facts are undisputed. Petitioner filed an action, Omni Aviation Managers, Inc. v. Hansen, et al., in the superior court seeking damages in the amount ...
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Opinion Plaintiff, a California corporation with principal place of business in Fresno County, appeals from an order granting the motion of defendant Eduardo Amezcua to quash service of summons on the defendant. The summons was served on defendant in the country of Mexico. The essential facts are not in substantial dispute. Any conflicts that may exist, however, are resolved in favor of the p...
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Opinion Plaintiff, a California corporation with principal place of business in Fresno County, appeals from an order granting the motion of defendant, Gustavo Habermann, to quash service of summons on the defendant. The summons was served in the country of Mexico. The essential facts are not in substantial dispute. Any conflicts that may exist, however, are resolved in favor of the prevailing...
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Opinion This appeal raises the question whether the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) applies to the decision of Golden Gate Bridge, Highway and Transportation District (District) to increase fares for travel upon a bus line operated by the district. The parties largely argue the case as though the issue were whether an environmentalimpactreport(E...
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*724 Opinion Henry Lee Ingram appeals the judgment after conviction in a court trial for grand theft from the person (Pen. Code, § 487, subd. 2) with the finding of a prior robbery conviction. Ingram contends (1) the evidence fails to support the grand theft conviction, and (2) he was not properly advised of his rights and the consequences of his submission of the case in part on...
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60 Cal. App. 3d 757 (1976) 131 Cal. Rptr. 830 VIRGIL COWING, Plaintiff and Appellant, v. CITY OF TORRANCE, Defendant and Respondent. Docket No. 47002. Court of Appeals of California, Second District, Division Two. August 5, 1976. *758 COUNSEL David Daar, Michael R. Newman, Jack K. Eddy and Daar & Newman for Plaintiff and Appellant. Buck & Smith, Buck, Molony, Nimmo & Ammirato and Mark...
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Opinion Anne Mary Lechlinski was found guilty of violating section 11355 of the Health and Safety Code. 1 She appeals from the judgment of conviction. Facts: On February 4, 1975, after various acts of negotiating, appellant sold to undercover Officer Leonard Doran a white powder that appeared to be *768 cocaine. She asked him to sample it and. was concern...
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Opinion This case presents the issue of whether the plaintiff was improperly denied a jury trial. Plaintiff Tina Heim filed an action in the *772 San Diego Superior Court against defendant David Houston for personal injuries sustained on April 4, 1970, when an automobile she was driving collided with a pickup truck driven by Houston. Sitting without a jury, after having denied plaintiff’s req...
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*777 Opinion Plaintiffs brought an action in tort against Avco Community Developers, Inc. (Avco), Niguel Homeowners Association, Inc. (Niguel), and Clifford and Amelia Grant. Following a juiy trial, a verdict was returned against all defendants for $109,200 actual damages, and against Avco and Niguel for $1 million punitive damages. Judgment having been entered on the verdict, all defendants ...
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*786 Opinion Plaintiff, a title insurance company incorporated in Kentucky and duly qualified to do business in the State of California, has appealed from a judgment entered on a verdict in favor of defendants in an action in which it sought to recover on an agreement under which defendant title company, a title company underwritten by plaintiff (see Ins. Code, § 1234.5 and forme...
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*831Opinion Charles Carl Wild was convicted by a jury of involuntary manslaughter. (Pen. Code, § 192, subd. 2.) He appeals the judgment and order granting probation,1 arguing the insufficiency of the evidence as a matter of law, the need for the People to elect between voluntary and involuntary manslaughter, and the trial court’s authority to declare the conviction a misdemeanor. Under the familia...
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Opinion This is an appeal by defendants from the trial court’s order, made after judgment, denying defendants’ motion to quash execution, to vacate the levy of execution and to declare the judgment void. On December 21, 1971, plaintiffs filed a complaint against defendants seeking damages for breach of contract. Thereafter, to wit, on June 8, 1972, the parties entered into a written stipu...
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Opinion Opinion on rehearing. A jury trial resulted in defendant’s conviction of attempted murder, assault with a deadly weapon and *851 use of a firearm in the commission of both offenses. He appeals, charging erroneous denial of his motion to suppress. The victim was William Karr, an informer whose undercover work had led to several narcotics convictions in Nevada County. On May 4, 1974, ...
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Opinion A municipal court judge sitting as a magistrate, overruling defendant Knutson’s contention of a constitutionally invalid *860 detention, arrest, search, and seizure of marijuana and PCP 1 from his person, held him to answer for trial in the superior court on charges of possession of those substances. (See Health & Saf. Code, §§ 11357, 11378.) Thereafter the...
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*871 Opinion Mary J. Holmgren (hereinafter “wife”) appeals from portions of a decree of marital dissolution. The parties were married on November 19, 1949, and separated in June 1970. They have two children, one of whom resides with the wife. At the time of trial the wife’s age was 48. She had no occupation, little apparent income and considerable debts. She testified that she suffered fr...
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Opinion This election contest appeal raises the single question whether Government Code section 71701, requiring that a justice court judge “shall at the time of his selection be a resident of the county,” repealed by implication the provision in Government Code section 71140 that judges of a justice court “shall be residents eligible to vote in the judicial district. . . .for a period of at le...
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Opinion The facts are not in dispute. Plaintiffs and appellants, Ernest Laks and Richard Schubot (hereinafter “appellants”) sought to develop a Sheraton Motor Inn located near the San Francisco International Airport. Appellants had obtained a broker to assist them in finding *887 the financing for the project. On January 9, 1973, Coast Federal Savings and Loan Association (he...
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Opinion Appellants Pace had been the owners of two small San Francisco buildings, one with three residential units and the other with two, for more than twenty years. They neither resided, nor intended to reside, in either. And they had never held an electrical contractor’s license according to the contractors license law (div. 3, ch. 9, of the Bus. & Prof. Code). Appropriate municipal au...
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Opinion This is an appeal by James Ray Colson, plaintiff and appellant (Colson), from a judgment entered on a jury verdict after the trial judge directed a verdict in favor of defendant and respondent Standard Oil Company of California (Standard Oil) on the. issue of punitive damages. *915 Statement of Facts On January 17, 1967, on the premises of Standard Oil’s petrole...
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*960 Opinion Petitioner Frank Freytes seeks review of an order of the San Francisco Superior Court denying his motion to suppress evidence. (Pen. Code, § 1538.5.) Petitioner is charged with possession of heroin for sale (Health & Saf. Code, § 11351) and with possession of narcotic paraphernalia (Bus. & Prof. Code, § 4143, subd. (a)). On December 4, 1975, San Francisco police...
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Opinion This action was brought by Dessiree Morris, a minor, by her guardian ad litem, Lois Morris, for personal injuries, and by Lois Morris, individually, for medical expenses incurred on behalf of Dessiree. The jury returned a verdict in favor of Lois (hereinafter Mrs. Morris) for the medical expenses in the amount of $600, but also a verdict in favor of defendant against the minor Des...
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Opinion Statement of Case and Facts Appellant petitioned the superior court for probate of a purported holographic document signed by the decedent and dated May 21, 1972, which devised all of decedent’s property to the appellant and C. O. Beck, *977decedent’s sister, and appointed appellant executrix. After a hearing the trial court found that the document was invalid as a will and denied its adm...
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Opinion Defendant and appellant appeals from a judgment of the Solano County Superior Court, after jury verdict, convicting him of involuntary manslaughter. *988 Issues Presented 1. Appellant’s statements to the police were properly admitted. A. The court applied the proper standard in determining the voluntariness of appellant’s statements. B. Appellant’s statements were voluntary. ...
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*4 Opinion The Superior Court of Los Angeles County, on petition by Attorney Donald Rosenstock, issued a writ of prohibition ordering the Municipal Court of the Los Angeles Judicial District (hereinafter municipal court) to vacate its order to show cause in re contempt. The municipal court and its Commissioner Robert L. Swasey, who issued the order to show cause, have appealed. The Case O...
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*65 Opinion These four writ proceedings present a common issue: Whether there is a right to jury trial in a habeas corpus proceeding brought by a person civilly committed as mentally retarded pursuant to Welfare and Institutions Code section 6500 et seq. In 4 Civil 15715 the Medical Director of Patton State Hospital and the State Department of Health seek a writ of prohibiti...
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Opinion Respondent Buescher recovered a judgment against appellant Lastar for the full amount of a demand note which was barred by the statute of limitations (Code Civ. Proc., § 337) on the theoiy that a written acknowledgment of its continued validity as provided for by Code of Civil Procedure section 360 1 was made by appellant the maker of the note. The facts as stipula...
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Opinion Respondent Lynn Louis Hutchins (hereinafter “respondent”), a licensed California attorney at law, was charged in a misdemeanor complaint with aiding and abetting and conspiring with certain persons acting as runners or cappers in the solicitation of business for him. Business and Professions Code section 6151 defines a runner or capper as “any person . . . acting in any manner or ...
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Opinion We have before us the appeal of the County of Inyo from the second interim pumping rate order directed to the City of Los Angeles by the Sacramento Superior Court. This litigation focuses primarily on the obligation of the City of Los Angeles to comply with the California Environmental Quality Act (“CEQA”) as a prerequisite to increasing its extraction of subsurface water from the Owe...
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Opinion Facts Appellants Charles Manson, Patricia Krenwinkel, and Susan Atkins1 were indicted by a grand jury on seven counts of murder and one count of' conspiracy to commit murder. Appellant Leslie Van Houten was indicted in two of the same seven counts of murder and in the conspiracy count. A jury found all appellants guilty as charged and further found the murders to be of the first degree. A...
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Opinion Plaintiff, the State of California, acting on behalf of the State Board of Equalization, brought an action to enforce the asserted liability of United States Fire Insurance Company (hereinafter “defendant”), under a written contract of surety by which defendant guaranteed the payment of sales and use taxes incurred by Gibson Products of Lodi, California, Inc. (hereinafter “Gibson ...
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Opinion Cross-defendant, a subcontractor, has appealed from a judgment awarding cross-complainant, a general contractor, indemnity after the latter had suffered a verdict and judgment in an action brought by the subcontractor’s employee for injuries suffered in a fall from a scaffold furnished by the general contractor. 1 The subcontractor contends that the indemnity clause in ...
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Opinion This case comes before us again on direction of our Supreme Court to consider the matter in light of City of Los Angeles v. Industrial Acc. Com. (1965) 63 Cal.2d 263 [46 Cal.Rptr. 110, 404 P.2d 814], and City etc. of S. F. v. Workmen’s Comp. App. Bd. (1968) 267 Cal.App.2d 771 [73 Cal.Rptr. 429]. The principal question is whether petitio...
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Opinion This action arose out of a complaint filed by Sperry & Hutchinson Company’s assignee of a claim for money owing Sperry & Hutchinson (S&H) on a contract between S&H and appellant James B. Hill. Hill thereafter filed a cross-complaint against S&H and respondent Noble Drilling Corp. Noble moved for an order to quash and dismiss for lack of jurisdiction pursuant to section 418.10 of t...
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Opinion Until a few years ago, sidewalk newsracks were nothing but a convenience for the vendee, as well as an economical means of distribution for the vendor. Lately, however, because their proliferation has made them a major traffic hazard for pedestrians and their contents indicate that they are a handy way of peddling smut, they have aroused the concern of local legislatures and become the ...
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Opinion Plaintiffs John and Angie J., as guardians ad litem for Patricia J., appeal from judgments following an order sustaining without leave to amend the demurrer of the County of Sacramento and orders granting judgment on the pleadings to the Sacramento City and Rio Linda Union School Districts. The sole issue on appeal is whether governmental immunity for injuries caused by or to a “p...
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Opinion The parties first brought their domestic troubles before the Yolo County Superior Court in June 1972. Husband and wife leveled charges of harassment and molestation at each other. In September 1973 an interlocutory decree of dissolution was entered. As amended in June 1974, the decree gave custody of the two children (ages six and three) to the mother, provided the father weekend visita...
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*313 Opinion Janice P., the mother, appeals from an order of the juvenile court depriving her of the custody of her minor son, Robert P., and declaring him to be a ward of the court, as a dependent child pursuant to the provisions of Welfare and Institutions Code section 600, subdivisions (b) and (d). 1 The appeal raises a question of first impression as to the proper evidentiary standard o...
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Opinion The People have appealed from an order dismissing an information which charged respondent Frank Roger Kessel with *324 battery upon a peace officer (Pen. Code, §§ 242, 243) and drunk driving (Veh. Code, § 23102, subd. (a)). Upon respondent’s plea of not guilty, the cause was set for trial on January 13, 1976; there was no objection by the defense, though the information had been fil...
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Opinion Respondent husband Eddie Muldrow has appealed from an order made in the family law court, denying him relief sought, namely, that his former wife, petitioner Julia Muldrow, be required to assist him with the support of their four minor children, who live with respondent and are in his custody. We hold that the order made below constituted an abuse of discretion, and, consequently, we re...
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Opinion Plaintiffs appeal from an order dismissing their complaint after a demurrer thereto had been sustained. For the reasons set forth below, we reverse the judgment. This is a purported class action, 1 brought by the Los Angeles County Democratic Central Committee and various members of that committee and of comparable committees of other political parties, against the...
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Opinion This is an action for declaratory and injunctive relief brought by the Long Beach Police Officers Association, on behalf of approximately 650 police officers employed by the City of Long Beach Police Department, to restrain enforcement of section 4242 of the Long Beach Police Department Manual, relating to the display and discharge of firearms by the officers. Plaintiff contends t...
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Opinion Plaintiff (appellant) appeals from a judgment in favor of City of Glendale (respondent) after a trial on the respondent’s fourth affirmative defense of design immunity pursuant to Government Code section 830.6. On October 2, 1973, appellant filed a complaint alleging two causes of action. Appellant’s first cause of action alleged that she suffered injuries caused by the dange...
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Opinion This is an appeal by the California Coastal Zone Conservation Commission (Commission) from the granting of a peremptory writ of mandate ordering Commission to set aside its decision denying the Marina Village (Marina) an exemption from the permit provisions of the Coastal Act and to reinstate the decision of the South Coast Regional Commission (Regional Commission) granting an exe...
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Opinion Defendant George Vanbuskirk was charged with one count of robbery and one count of burglary, both counts arising out of the same event. After a jury trial, defendant was found guilty on both counts; the jury found each offense to be of the first degree. Defendant was sentenced to prison; execution of sentence on count II was suspended. Facts At about 9 p.m. on August 15, 1974, a rob...
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Opinion Otis Sparks, an applicant for workers’ compensation benefits, and Kaiser/Permanente, a lien claimant, seek review of an order of the Workers’ Compensation Appeals Board which denied their petitions for reconsideration. The matter arose as follows: Otis Sparks was employed as a member of the California State Police from May 2, 1949, through January 31, 1972, at which time he retired, a...
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Opinion Nature of Case: After trial by jury, defendants David Alfaro and Rita Vasquez 1 were found guilty of the crimes of forcible rape (Pen. Code, § 261, subd. 2) and assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a).) Defendants appeal from the judgment of conviction. The evidence in the light most favorable to the People as the prevailing par...
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Opinion Petitioner, under indictment for the murder of her husband, seeks a writ of prohibition restraining the trial judge, the Honorable Harold Underwood, from proceeding further in the action. This proceeding follows respondent superior court’s denial, as untimely, of her motion under Code of Civil Procedure section 170.6 to disqualify the trial judge. Subdivision (2) of section 1...
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*437 Opinion Williams & Burrows (contractor), Fireman’s Fund American Insurance Companies (surety) and Oceanside Properties, Inc. (owner) appeal from a judgment in favor of respondent Michel & Pfeffer (subcontractor). Michel & Pfeffer commenced this action against appellants for payment on a bond, foreclosure of a mechanics lien and common count based on work performed. The judgm...
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Opinion Mahria L. Decker appeals an order of the superior court denying her motion to recall and quash a writ of execution obtained by *446 the City of Los Angeles (hereinafter referred to as the City) to obtain possession of condemned real property. The Case On October 30, 1973, a judgment in condemnation was entered in proceedings initiated by the City orderin...
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Opinion Plaintiff appeals from an “Order Granting Dismissal of Complaint” filed August 21, 1975. This order is not appealable. (Code Civ. Proc., § 904.1.) No judgment was entered following the August 21, 1975, order, so the appeal is technically premature. Nevertheless, it is clear that the order was intended to be a final disposition of the controversy, and it is signed by the court. According...
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Opinion By this proceeding, Employment Development Department (petitioner) seeks annullment of an order approving a compromise and release which denied a lien asserted by petitioner. *472 The facts are not in dispute. Sequentially, they developed as follows: On April 1, 1974, Eduardo Garcia, employed as a butcher, sustained an industrial injury to his back. The employer’s insurance carrie...
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Opinion Willie Lee Brown, a medical doctor, was found guilty by a juiy of two counts of violating Welfare and Institutions Code section 14107 (furnishing of false claim or information for services), and his appeal is from the judgment entered thereon. He was originally *478 indicted upon 30 separate felony counts, 16 of which charged violations of Welfare and Institutions Cod...
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Opinion On August 28, 1974, Howard Koons, a probationary elementary school teacher, petitioned the superior court for a writ of mandate (Code Civ. Proc., § 1094.5), seeking review of the decision of the respondent, Placer Hills Union School District (“District”), not to rehire him for the 1974-1975 school year. The District demurred on the basis that the petition was barred by Government ...
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*495 Opinion The case at bench involves the bar of the statute of limitations of Insurance Code section 2071 requiring that an action on a fire or all risk policy of insurance be commenced within 12 months of the “inception of the loss.” In particular, action of the trial court granting an insurer’s motion for summary judgment must be tested by the meaning of the quoted phrase in...
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Opinion Beech Aircraft Corporation (hereinafter “Beech”) seeks a writ of mandate compelling the superior court to grant its motion for summary judgment in three consolidated cases wherein Beech sought orders declaring (1) New Mexico law “the applicable law *507 in determining the rights and liabilities of the parties,” and (2) that under New Mexico law wrongful death damages “arising out of t...
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Opinion The compensation judge found petitioner, the applicant in the underlying compensation proceeding, to have been “engaged in household domestic service” (Lab. Code, § 3352 subd. (e)) for less than 52 hours per week (Lab. Code, § 3358.5) and thus to have been an employee excluded from compensation coverage. The appeals board, one member dissenting, concurred without further comment. We...
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*532 Opinion Plaintiff Wesley Bliler and others filed a complaint in the Superior Court of San Diego County challenging the validity of an assessment ordered by the San Diego City Council in its Resolution No. 211118 of July 18, 1974. Their complaint requested the cancellation of the assessment and the assessment district formed for San Diego Park District No. 12F-Tecolote Canyon...
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*538 Opinion Weiss appeals from an order, dated March 11, 1975 (signed Mar. 19, 1975, and filed Mar. 20, 1975), setting aside two amended supplementary judgments awarding him punitive damages in his action against Blumencranc, his former partner, for dissolution and an accounting. Both of the judgments set aside supplemented a default judgment dated October 20, 1972, against Blum...
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Opinion Pronto Market No. 1, Inc., seeks review of a decision of the Alcoholic Beverage Control Appeals Board (hereinafter designated as Board) denying petitioner’s application for a type 9 beer and wine importer’s license. The issue presented in this matter is whether the tied-house restrictions contained in the Alcoholic Beverage Control Act (Bus. & *547 Prof. Code, § ...
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*559 Opinion Petitioners appeal from an order dismissing their petition for a writ of mandate, after a demurrer to that petition had been sustained. 1 For the reasons set forth below, we reverse the order. Petitioners were and now are duly admitted attorneys-at-law and were duly licensed private investigators. As investigators they applied to respondent Sheriff of Los Angeles County for a...
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Opinion Defendant, the Community Redevelopment Agency of the City of South Pasadena (hereafter Agency), appeals from a judgment that, among other things, declares invalid the city’s ordinance purporting to amend an existing redevelopment plan for the Monterey Hills area in the city and awarding to plaintiffs’ attorneys legal fees in the amount of $20,400. *573 The essential ...
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Opinion Armenta seeks a writ of mandate to suppress certain evidence which he claims was seized pursuant to an unconstitutional and illegal search. (See Pen. Code, § 1538.5, subd. (o).) On April 23, 1976, this court issued a temporary stay of appellant’s trial. Qn June 9, 1976, we granted an alternative writ and set the matter for hearing. We now think that the search was illegal but...
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Opinion The defendants and cross-complainants, Dorothy Powell and Virginia Jehnzen doing business as El Monte Mobile Home Village, appeal from a judgment 1 entered in favor of plaintiff, Eric Rushing, and cross-defendants, Eric Rushing and Keith Hutchison, after a trial by the court sitting without a jury. The first cause of action is for the sum of $5,107.40, representing the ...
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*612 Opinion Riley B’s, Inc., plaintiff and appellant (appellant), filed a complaint against the State Board of Equalization of the State of California (Board), seeking a refund of state sales and use taxes previously paid in the sum of $3,439.87 plus interest. On April 7, 1975, the cause came on regularly for trial. No oral testimony was heard, as the matter was submitted upon a written stip...
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Opinion Defendant Gus Lopez appeals the judgment for $5,899 plus interest and costs in favor of plaintiff Farr & Stone Insurance Brokers, Inc. in an action for insurance premiums. The trial court heard the cause without a jury and found that Lopez promised to pay past-due insurance premiums owed by Apex Auto Products Company to Farr & Stone and that his promise was an original obligation ...
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Opinion Appeal from an order denying relief from the provisions of Government Code section 945.4 relating to claims against public entities. Superior court relief was sought under the provisions of section 946.6. 1 The relevant time-table is as follows: August 22, 1974: Certain deputy sheriffs came to appellant’s residence to arrest his son. Somehow appellant was also arrested. In attempt...
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Opinion Plaintiff witnessed the death of her husband in an accident which occurred in the course of his employment with the Schwartz Logging Company (“employer”). After recovering workers’ compensation benefits for her husband’s death, plaintiff filed this action against the employer and other parties for the emotional distress which she suffered as a result of the incident. 1 ...
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Opinion This is an appeal from a denial of appellant’s motion to vacate an order confirming sale of real property in the estate of Bert M. Lewy, deceased. *638After decedent’s death on April 27, 1971, the Bank of America was appointed by court order to act as special administrator with general powers of the estate pending the hearing of a will contest between appellant Jere Earle Brown and another...
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*649 Opinion By information, appellant was accused of selling, furnishing or giving away heroin in violation of section 11352 of the Health and Safety Code; he entered a plea of not guilty to the charge and then moved to suppress the evidence pursuant to section 1538.5 of the Penal Code; his suppression motion was denied, and the cause proceeded to jury trial. Appellant was convicted as charg...
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Opinion Pursuant to a petition for writ of mandamus under Code of Civil Procedure section 1094.5 filed in the superior court, Doris J. Vick seeks to compel the Board of Education of the Los Angeles Unified School District and Los Angeles Unified School District to set aside its decision made May 21, 1973, not to reemploy her for the 1973-1974 school year. It appears without conflict that on F...
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Opinion Appellants appeal from a judgment denying a petition for writ of mandate to set aside a decision of respondent, Commission on Professional Competence (CPC), dismissing appellant, Leo F. Smyth (Smyth), from employment by the Board of Education of the County of Los Angeles (Board). We reverse. Respondents, Board and the Superintendent of Schools of the County of Los Angeles (Clowes), cr...
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*673Opinion Appellant was duly charged, by a petition in the juvenile court, with being a person described in section 602 of the Welfare and Institutions Code, by reason of having committed two acts of rape, in violatidn of subdivision 2 of section 261 of the Penal Code, and with having committed an act of kidnaping in violation of section 207 of the Penal Code. After a hearing under section 725 ...
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*691 Opinion Defendant Henry Anthony Moreno appeals his conviction by a jury of violating sections 459 and 487 (subd. 3) of the Penal Code, namely, burglary and grand theft of a firearm respectively. He was given concurrent sentences to state prison. No challenge is made as to the propriety and form of the sentences. The following is a brief summary of the pertinent facts. The victim as to ...
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Opinion The appeal at bench raises the issue of the application of the California Occupational Safety and Health Act of 1973 to “operating” as opposed to “shop” personnel of “steam railroads” and the jurisdiction of the Division of Industrial Safety over the working conditions of those employees. It raises also the question of definition of the term “steam railroad” as used in Labor Code ...
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61 Cal.App.3d 704 (1976) 132 Cal. Rptr. 625 MICHAEL EDWARD CALLAHAN, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant. Docket No. 48042. Court of Appeals of California, Second District, Division Four. September 3, 1976. *705 COUNSEL Evelle J. Younger, Attorney General, and Richard M. Radosh, Deputy Attorney General, for Defendant and Appellant. Roger W. Borrell f...
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Opinion This appeal requires selection of the statute of limitations appropriate to an ex-wife’s lawsuit against her ex-husband, alleging her mental incompetence at the time of the property settlement agreement and the marital dissolution decree incorporating it and seeking to set aside the decree and rescind the agreement. In effect, the complaint alleges that after 18 years of marr...
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Opinion Defendant appeals from a judgment after jury verdict of the Santa Clara County Superior Court of guilty of violation of Penal Code section 165. The People appeal from an order of the same court granting defendant a hew trial on count two of the indictment. *722 Issues Presented People’s appeal. 1. The court wrongly concluded that it erred in failing to dismiss count two on the...
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Opinion As a result of a certification, hereinafter detailed, the defendants, despite the establishment of the constitutionality of the statutes under which they were convicted (Pen. Code, § 311 1 and § 311.2, subd. (a) 2 ; see Bloom v. Municipal Court (1976) 16 Cal.3d 71 [127 *744 Cal.Rptr. 317, 545 P.2d 229]), seek to press allege...
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Opinion Defendants and appellants appeal from a judgment of the Marin County Superior Court, after jury verdict, convicting defendants of violation of section 459 of the Penal Code (burglary). Issues Presented 1 1. The trial court did not err in denying appellant Steven O’Brien’s motion for discovery of the identity of the informant. 2. The use of an in camera hearing did not viol...
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Opinion Douglas R. Wallis appeals from an order dismissing his complaint with prejudice after the granting of a motion to strike the complaint. The pleadings disclose that on May 15, 1975, Wallis filed a complaint for personal injuries, naming as defendants “Doe One *785 through Doe Twenty.” The complaint alleged that by reason of the negligent manufacture, operation and main...
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Opinion In Rudnick v. Superior Court, 11 Cal.3d 924 [114 Cal.Rptr. 603, 523 P.2d 643], the Supreme Court delineated the boundaries of the physician-patient privilege in its application to medical histories in the files of a drug manufacturer. Here we confront the privilege in relation to patients’ identities and ailments recorded in the claim files of a prepaid health care plan. Carolyn B...
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*808 Opinion Defendant appeals after jury conviction of violation of Penal Code sections 288 (two counts) 1 and 288a (one count). 2 In respect to the latter crime, it was also charged and found by the jury that defendant’s victim was under the age of 14 and he, the defendant, was more than 10 years her senior. The victims of the offenses, Tanya and Tamara Grume, are defendant’s adoptive d...
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Opinion Plaintiffs sued defendants Basinger and First American Financial Corporation (hereinafter collectively “defendants”) seeking (1) a declaration of plaintiffs’ right to an assignment of certain deeds of trust upon tender of amounts due on promissory notes secured by the trust deeds, of which Basinger, as executor of the estate of Flossie E. Gay, is the beneficial owner and First American ...
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Opinion Plaintiff Margaret Smith appeals from a judgment after a court trial in favor of defendant Lucky Stores, Inc. *828 Facts We rely chiefly on the statement of the undisputed facts in appellant’s brief. Defendant Lucky Stores hired QRS Corporation, 1 as an independent contractor, to remove a sign from a store named “Ardens,” owned by defendant. The letters spelling out “Ardens,” ...
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Opinion This is the second time that Cartt v. Standard Oil, a consumer class action pending in the respondent court, has been before us. In Cartt v. Superior Court, 50 Cal.App.3d 960 [124 Cal.Rptr. 376], we set aside trial court orders concerning notice to plaintiff’s class and, in substance, ordered the trial court to fashion a form of notice l...
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Opinion By information defendant was charged with possession for sale of heroin in violation of Health and Safety Code section 11351. A pretrial hearing was held on defendant’s motion to compel disclosure of *865 the identity of a confidential informant. The trial court ruled that disclosure was required and, when the People exercised the privilege to refuse disclosure, the t...
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Opinion Defendants appeal from the trial court’s judgment granting relief in favor of respondents in an action brought for recovery of a real estate broker’s commission and punitive damages. The background facts leading to the litigation may be summarized as follows. On November 6, 1969, appellants Ralph and Ann Enzler (“Enzlers”) entered into an exclusive listing agreement (“Listing...
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Opinion Appellants Bestline Products, Inc. (hereinafter “Bestline Products”), Bestline Corporation (hereinafter “Bestline Corp.”), William E. Bailey, Robert W. Depew, David L. Eastis, James Rohn and Larry D. Huff appeal from a judgment dated December 21, 1973, in favor of plaintiff the People of the State of California. The judgment (1) permanently restrained defendants from operating or ...
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61 Cal.App.3d 937 (1976) 132 Cal. Rptr. 907 UNIVERSITY OF JUDAISM, Plaintiff and Appellant, v. TRANSAMERICA INSURANCE COMPANY et al., Defendants and Respondents. Docket No. 47695. Court of Appeals of California, Second District, Division Five. September 15, 1976. *939 COUNSEL Wyman, Bautzer, Rothman & Kuchel, Frank Rothman and Rauer L. Meyer for Plaintiff and Appellant. Jack A. Rose, Dunne, S...
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*956 Opinion In this eminent domain action defendant, California-American Water Company, hereinafter referred to as The Company, appeals from an interlocutory judgment condemning its water works identified as the Sweetwater District of The Company’s San Diego division, hereinafter referred to as The Sweetwater System, and awarding compensation therefor in the sum of $14,485,000, ...
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Opinion Defendants1 allegedly violated Los Angeles Municipal Code section 28.16, subdivision (a),2 by not clearly and visibly posting the price of gasoline. Defendant’s demurrer was sustained and the complaint dismissed on the ground that state law and regulations preempted the ordinance. The court in In re Hubbard (1964) 62 Cal.2d 119, 128 [41 Cal.Rptr. 393, 396 P.2d 809], held that chartered ci...
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Opinion charged with violation of section 647, subdivision (d), of the Penal Code, demurred. The demurrer was sustained and, when the People refused to amend, the court dismissed the complaint. Section 647, subdivision (d), provides that anyone loitering near public toilets for the purpose of soliciting a lewd, lascivious or unlawful act, is guilty of disorderly conduct, a misdemeanor. The demurre...
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Opinion Defendant (hereinafter alternatively appellant) was arrested and later convicted for a violation of section 12025 of the Penal Code, which reads, in pertinent part, as follows: “(b) Any person who carries concealed upon his person any pistol, revolver, or other firearm capable of being concealed upon the person without having a license to cany such firearm ... is guilty of a misdemeanor .....
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Opinion The instant appeal is taken by plaintiff Wilson from several orders of the superior court. One, an order decertifying his action against San Francisco Federal Savings and Loan Association (“San Francisco Federal”) as. a class action, is appealable. (Daar v. Yellow Cab Co., 67 Cal.2d 695, 699 [63 Cal.Rptr. 724, 433 P.2d 732]; Eisen v. Carlisle & Jacqueli...
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Opinion Defendant Ramon Serrata áppeals from a judgment convicting him of two counts of theft of trade secrets, in violation of section 499c, subdivision (b), of the Penal Code; and two counts of *14 acceptance of a bribe by an employee, in violation of section 499c, subdivision (c), of the Penal Code. The facts have been summarized in great detail by both parties in their briefs; therefore...
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*35 Opinion Petitioners, as creditors of defendant SPK Corporation, sued that corporation, the real party in interest, and other persons, to set aside two allegedly fraudulent conveyances. In that complaint and in an amended complaint, in addition to allegations common to such litigation, plaintiffs pled that the real party in interest had never disclosed the allegedly fraudulent payments to ...
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Opinion Defendants Banks and Ashley were convicted of burglary (Pen. Code, § 459), following a court trial, a jury trial having been waived. They are appealing from the judgments. 1 Evidence presented at trial established that, on September 4, 1974, Scott Lachenmyer was working as a truck driver for the Man’s Shop, located in the Carson Mall, City of Carson. At 11:30 á.m., while he was load...
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Opinion Defendants were charged in 11 counts with various narcotic offenses and with various possessions of firearms. They duly moved, under section 1538.5 of the Penal Code, to suppress evidence obtained as a result of their arrest and a search of the residence of defendant Young. The motion was denied by Judge Keene on December 17, 1974. Thereafter, the defendants moved, before Judge Baffa (to w...
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*58Opinion By information, defendant Salvador John Reyes was charged, in count I, with engaging in poolselling and bookmaking, in violation of Penal Code section 337a, subdivision 1; in count II, with keeping and occupying a cafe for the purpose of recording and registering bets and selling pools, in violation of Penal Code section 337a, subdivision 2; in count III, with stake holding, in violati...
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62 Cal.App.3d 71 (1976) 131 Cal. Rptr. 608 In re DARWIN CRAIG STANLEY on Habeas Corpus. Docket No. 28341. Court of Appeals of California, Second District, Division Five. September 16, 1976. *72 COUNSEL Wilbur F. Littlefield, Public Defender, John M. Moore, Chief Deputy Public Defender, Harold E. Shabo, Ned Cook and Laurance S. Smith, Deputy Public Defenders, for Petitioner. *73 Evelle J. Younger,...
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Opinion Defendant appeals from a judgment of conviction of first degree murder (Pen. Code, § 187), and grand theft person (Pen. Code, § 487, subd. 2). The jury also found that in the commission of the murder, the defendant used a firearm, a .38 caliber revolver (Pen. Code, § 12022.5). Defendant was sentenced to state prison for each offense with an additional mandatory term for use of a firea...
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Opinion Yvonne, mother of Randy, a minor child, appeals from an order of the juvenile court finding Randy to be a minor coming within the provisions of Welfare and Institutions Code section 600, subdivision (a),1 and awarding custody of Randy to the department of public *92assistance with current placement in the home of his maternal aunt. On appeal, Randy’s mother contends that: (1) the court, at...
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Opinion On January 24, 1973, appellant Big Sur Properties, a limited partnership, filed a petition for writ of mandate to compel the State Department of Parks and Recreation (hereinafter Department), through State Resources Agency Director William Penn Mott, to exercise its discretion under Public Resources Code section 5003.5. 1 The appeal is from the judgment denying the peti...
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Opinion Plaintiff appeals from a judgment denying it a refund of business taxes paid to defendant city and from the judgment for defendant city on its cross-complaint to recover taxes for the ensuing years. *111 Facts Appellant Marsh & McLennan of California, Inc. filed this action on March 3, 1972, seeking (1) a refund of business taxes paid to respondent City of L...
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*127 Opinion The appeal is from a judgment dismissing with prejudice the complaint of plaintiffs Winchell, following an order sustaining a demurrer with leave to amend and plaintiffs’ failure to so amend. It concerns Civil Code section 51, the so-called Unruh Civil Rights Act, and its related statute, Civil Code section 52. (Hereafter both sections, unless otherwise indicated, will be refer...
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Opinion Appellants, Andrew Grzeskowiak, Karen Dull, Roy De La Rosa and Linda Malmgren, were probationary certified teachers employed by the respondent, Board of Trustees of the Lamont School District (hereinafter “District”). They appeal from a judgment denying a peremptory writ of prohibition by which they sought to prevent the District from proceeding to hold a hearing to determine whether they...
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*155 Opinion Petitioner, Herman Cunningham, asks this court to compel, through the issuance of the appropriate extraordinary writ, respondent court to dismiss the criminal action against him pending in that court for the alleged commission of two misdemeanors (Veh. Code, § 42002) (drunk driving, Veh. Code, § 23102, subds. (a) (c); driving while unlicensed, Veh. Code, § 12500) on the ground th...
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*167 Opinion On the petition of Stanley Ernest May for a writ of habeas corpus, we issued an order to the Superior Court for the County of Los Angeles and to Peter J. Pitchess, sheriff, Los Angeles County, to show cause why respondent court should not vacate its order of July 8, 1976, and instead enter a new order imposing upon petitioner a fine of not more than $100 and correcting its record...
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*183 Opinion On October 29, 1969, at approximately 4 a.m., a tractor and trailer combination belonging to Irwindale Trucking Company (Irwindale) was stopped at the side of and partially in the No. 3 lane of the eastbound San Bernardino freeway in the City of Montclair. It was a foggy morning and no artificial lighting was present. There were no lights or flares on or around the Irwindale truc...
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Opinion Richard Paul Storrs petitioned the Superior Court of Los Angeles County to be permitted to adopt Elizabeth, age 11, and Catherine, age 13, the two minor children of his present wife Nancy. Nancy consented to the adoption but her former husband Robert Van Anda, the father of the minor children, refused to consent. Nancy and Robert were divorced in September of 1969. The judgme...
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Opinion The trial court denied defendant’s motion, made on June 29, 1976, to dismiss the action which had been filed on May 20, 1971, for personal injuries suffered in an automobile accident occurring in September 1970. We issued an alternative writ ordering the superior court to show cause why defendant’s motion should not be granted. We conclude that the motion should have been granted under ...
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Opinion Plaintiff appeals from an order vacating a judgment entered in his favor under section 1710.10 et seq. of the Code of Civil Procedure. For the reasons set forth below we reverse the order. On May 4, 1965, plaintiff obtained a judgment against defendant, in a Texas court, for a substantial amount of money. That judgment has long since become final. On April 29, 1975, plaintiff filed an...
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Opinion In this appeal by the defendants (hereafter “Department”) from a money judgment in favor of plaintiffs, the Department contends that the amounts collected by it as contributions based on an employer-employee relationship were lawfully collected. The sole issue is whether certain telephone solicitors were independent contractors or employees. The trial court, having made its findings of ...
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Opinion Petitioner seeks a writ of review to inquire into and determine the lawfulness of the findings and award and order denying petition for reconsideration of respondent Workmen’s Compensation Appeals Board (hereinafter the “Appeals Board”). The Appeals Board determined that petitioner sustained a compensable industrial injuiy on *219March 31, 1972, resulting in a permanent disability of 30% p...
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Opinion This original proceeding in mandate concerns the effect of Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226] (hereafter “Li”), and Code of Civil Procedure section 877, upon a tortfeasor who has settled a damage claim for a tort alleged to have been jointly committed by him and other tortfeasors. Li abolished C...
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Opinion Plaintiff traveled by defendant bus line from New York City to Albuquerque. Ele checked three pieces of hand luggage accompanying him on his journey. Only two pieces were returned to him; the third was lost. Ele asserted the missing case contained “color transparencies, recorded tapes and manuscripts” representing 11 years of work. He valued them at $ 10,000 and filed this action to recov...
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Opinion Appellant Ceilia Kemp sued for damages arising out of a collision between her automobile and another driven by Carol Sue Barnett (hereinafter “Carol”) and owned by William Barnett (hereinafter “William”). As a result of the collision, appellant suffered personal injuries and property damage in an amount which has not been established. Thereafter, she brought suit against the driver, C...
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Opinion This is an appeal by petitioner from a judgment denying his petition for a writ of mandate under section 1094.5 of the Code of Civil Procedure. The judgment sustained a determination made pursuant to section 7616 of the Financial Code 1 by respondent. The Savings and Loan Commissioner of the State of California (hereinafter referred to as “Commissioner”) that petitioner...
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Opinion During the early morning hours of February 7, 1974, an intruder broke into the Yettem Learning Center, a school for trainable mentally retarded children in Tulare County, and, among other things, removed a typewriter, an adding machine, a camera, a record player and a toaster. Then, the intruder set fire to the building; he went into the shop area, placed some paper upon the floor and, ...
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Opinion The appeal before us was taken by plaintiff Penn Security Life Insurance Company (“Penn Security”) from an adverse judgment in its declaratory relief action against defendant John S. Rising, Jr. (“Rising”), and others. The issue in the superior court was. whether a valid contract of credit life insurance on the life of one David L. Morris, M.D., ever came into existence betwe...
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Opinion On this appeal we are called upon to determine the appropriate statute of limitations, and the point at which it starts running, on an action for damages for violation of one’s right to privacy. The latter question appears to be one of first impression. Defendant State Farm Mutual Automobile Insurance Company (“State Farm”) had insured the automobile of plaintiff Bing Woo Jew...
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Opinion The issue raised by this appeal is whether a defendant, who has been successful in having the plaintiff’s cause of action *337 dismissed because it was not brought to trial within five years, is entitled to attorney’s fees pursuant to section 1717 of the Civil Code. The five-year history of the litigation is as follows: Plaintiffs filed their complaint on Ap...
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Opinion * Defendants Southern Pacific Transportation Company and Joseph M. Murphy appeal from judgments of the Contra Costa County Superior Court after jury verdict in favor of plaintiffs Donald Simmons and Mary Jane Fernie. Plaintiff Donald Simmons appeals on the limited issue of the failure of the said superior court to instruct on punitive damages. Issues Presented D...
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*373Opinion *The jury found appellant David Eugene Wilson guilty of attempting to commit the voluntary manslaughter of Eddie J. Conley (see Pen. Code, § 192, subd. 1 and § 644) and of committing an assault with a deadly weapon upon Conley and Rodney H. Boudreau (Pen. Code, § 245). The jury also found that appellant was armed with and used a deadly weapon during the commission of the crimes. Concur...
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Opinion Plaintiff Johnnie Campbell appeals from the trial court’s order granting the motion of defendant Security Pacific National Bank (hereinafter referred to as “Bank”) for a nonsuit in this action for damages for personal injuries. The Case Johnnie Campbell filed an action for personal injuries against defendant Bank and codefendants Beverly Auto Adjusters (hereinafter r...
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Opinion The first amended complaint for negligence alleges “That plaintiff is the owner of the claim [legal malpractice] against defendants herein by virtue of a written assignment by Eleanor Rae Katz, dated August 7, 1972”; that defendants are attorneys at law and represented Eleanor Katz in a dissolution of marriage proceeding during the course of which they were negligent in advising her that ...
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Opinion Lonnie Patrick James was originally charged with violation of Penal Code section 261, subdivision 3 (rape) and section 288a (oral *402 copulation) involving Ann Stava, as well as Penal Code section 644/261, subdivision 2 (attempted rape) and section 220 (assault with intent to commit rape) involving Gael Libby. Defendant’s motion pursuant to Penal Code section 995 to ...
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Opinion The People have purportedly appealed from an order sustaining a demurrer to a count of an indictment which charged Wendy *413 Masako Yoshimura (real party in interest) with violation of Penal Code section 12312 (possession of materials with intent to make explosive or destructive devices). Real party in interest correctly pointed out, however, that an order sustainin...
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Opinion Plaintiff appeals from a judgment dismissing his action based upon strict liability against a nonprofit blood bank for personal injury allegedly caused by the transfusion of blood infected with serum hepatitis. We conclude that the immunity from liability on this basis which was established by the Legislature in Health and Safety Code section 1606 must be applied to blood banks as it ha...
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*423 Opinion * Plaintiff Coast Pump Associates (hereafter appellant) appeals from a judgment that it take nothing upon its complaint against defendant Stephen Tyler Corporation (hereafter respondent). Appellant contends that respondent, the prime contractor on a public construction project, violated the Subletting and Subcontracting Fair Practices Act (Gov. Code, § 4100 et...
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Opinion These appeals by a child and a foster parent from an order denying a petition to declare a child free from parental custody and control raise the issue of apparent first impression 1 of the extent of the child’s constitutional and statutory right to independent counsel in the proceeding. It concerns, also, issues of: (1) the authority of a commissioner to hear the matter in the absenc...
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*445 Opinion The Case The nine consolidated cases at bench, emanating from the Long Beach Municipal Court, involve the legality of the game called RINGO. The case comes up on appeal from a final judgment of conviction for operating an illegal lottery as defined in Penal Code section 319 1 (hereinafter section 319). The five (5) named defiendants/appellants Charles Ray Shira, Vickie L. D...
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Opinion Plaintiff, a member of the Public Employees Retirement System, brought this declaratoiy relief action against the state to challenge the constitutionality of a 1972 statute which altered his retirement benefits. The trial court granted the state’s motion for summary judgment and plaintiff appeals. No judgment as such was signed or entered. The last action of the trial court on file is...
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Opinion An information charged defendant Cramblit with two violations and defendant Rawls with one violation of Penal Code section 496a. Essentially, the statute imposes criminal penalties on secondhand and junk dealers who fail to use due diligence to ascertain the authority of persons seeking to sell metal parts or wire of a sort ordinarily used by public utilities.1 The trial court granted a d...
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*487 Opinion Each of the petitions before us seeks writ of mandate to require the trial court to quash service of summons upon some of the petitioners. (Code Civ. Proc., § 418.10, subd. (c).) Each petitioner is among the defendants named in each of the basic actions (in some counties more than one) from which this dispute arises. These basic actions all seek damages for personal ...
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Opinion Defendant appeals from an order denying his motion made pursuant to section 473 of the Code of Civil Procedure seeking to vacate entry of default and to set aside a default judgment. A paternity action was brought against defendant by plaintiff Sarah Ford, alleging him to be the father of her child born out of wedlock and seeking support for the child. Summons and complaint was se...
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Opinion State of California, Employment Development Department (petitioner), seeks review of an order by the Workers’ Compensation Appeals Board (Board), denying its petition for reconsideration of a prior order approving a compromise and release proposed by the worker James J. Griffin and State Compensation Insurance Fund (Fund), the employer’s compensation insurance carrier. Reconsideration was ...
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Opinion Dorothy Austero (hereafter “plaintiff’), the wife of Julius S. Austero, an incompetent, instituted this action as guardian ad litem of her husband and individually on her own behalf seeking compensatory and punitive damages for defendants’ refusal to pay to Julius disability benefits allegedly due under policies of disability insurance and for defendants’ alleged breach of the imp...
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*520 Opinion * Petitioner and appellant appeals from judgment of the Marin County Superior Court denying his petition for writ of mandamus. Issue Presented An employee of the sheriff’s office is not entitled to compensation under section 4850 of the Labor Code for holiday pay not earned while on disability leave of absence. Record Appellant filed a petition for writ of mandate to co...
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Opinion Presented for review are trial proceedings in litigation between the City of San Jose (“the City”) as owner of a public works project, Welton Beckett and Associates (“Welton Beckett”) as the project architect and Nicholson-Brown, Inc. (“Nicholson-Brown”) as the general contractor. The City retained Welton Beckett to prepare plans and specifications for the construction of a n...
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*540 Opinion The Newark Unified School District and the members of its governing board appeal from a judgment for issuance of a writ of mandate to compel reinstatement of respondent Raymond A. de Groat as a teacher. Respondent had been charged with immoral conduct and “evident unfitness for service” 1 upon allegations that on November 20 he had permitted pupils to...
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Opinion Appellant, the City of Los Angeles, has appealed from a dismissal of its action to recover $50,407 against a real estate developer, respondent Gleneagle Development Company (hereafter Gleneagle), and its surety, respondent Security Insurance Company of Hartford (hereafter Security) for breach of contract to construct *549certain improvements which were conditions precedent to the city’s a...
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Opinion By a criminal complaint filed in the Justice Court for the Mojave Judicial District of Kern County, plaintiff was charged with throwing a rock at a vehicle in violation of subdivision (a) of section 23110 of the Vehicle Code. 1 Thereafter, the complaint was transferred to the Justice Court for the Kern River Judicial District of Kern County, and plaintiff moved for a dismissal; his mo...
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Opinion Petitioner is the daughter of Paul R. Roblyer who died as the result of an industrial injury more than 240 weeks from the date of the injury; she challenges the ruling of the Workers’ Compensation Appeals Board (hereafter the Board) denying her claim for a death benefit. The Board denied the claim on the ground that it was not timely, and the dispute revolves around conflicting in...
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Opinion * Appellant appeals from an order of the Monterey County Superior Court regarding child support and purports to appeal from the order denying motion for a new trial. 1 Issues Presented 1. The trial court erred in finding that the words “age of majority” in its modification order referred to the age 18. 2. The trial court erred in finding that respondent’s obligation to pay med...
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Opinion Charles Wm. Richion and eight other individuals (hereinafter referred to collectively as Richion), cross-complainants and interveners in the original action between Windsor Sales, a partnership formed by Richard and Robert Mahoney (the parties hereinafter referred to collectively as the Mahoneys) and defendants New Life Management, Inc. (hereinafter referred to as New Life) and Union Ba...
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Opinion Appellant’s husband, an employee of the Green Valley Disposal Company, Inc., was injured, allegedly due to the negligent operation and maintenance of the garbage truck on which he was working. He suffered disabling injuries, and appellant, in this action, sought damages for loss of consortium. Her complaint was dismissed following the sustaining of a general demurrer. * ...
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62 Cal.App.3d 634 (1976) 133 Cal. Rptr. 270 THE PEOPLE, Plaintiff and Appellant, v. ELLIOTT A. GOTTFURCHT, Defendant and Respondent. Docket No. 76-198. Court of Appeals of California, Second District, Division Four. October 7, 1976. *635 COUNSEL Burt Pines, City Attorney, and Ward G. McConnell, Deputy City Attorney, for Plaintiff and Appellant. Sheppard, Mullin, Richter & Hampton, Thomas R. S...
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62 Cal.App.3d 643 (1976) 133 Cal. Rptr. 287 THE PEOPLE, Plaintiff and Respondent, v. JOHN EDWARD HERRON, Defendant and Appellant. Docket No. 27497. Court of Appeals of California, Second District, Division Five. October 7, 1976. *645 COUNSEL John Stocker, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant At...
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*657 Opinion Defendant Carl Maxwell Tatem was charged by information with burglary of five business establishments located in the northern area of San Diego County in violation of Penal Code section 459. He waived a jury trial, and the case was submitted by stipulation on the transcript of the preliminary hearing. The trial court concluded Tatem had not committed burglary but found him guilty...
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*662 Opinion Leora Bernice Cavnar appeals from an interlocutoiy judgment ordering the dissolution of her marriage to Troy Lee Cavnar and dividing the community property of the parties. Wife specifically challenges the trial court’s characterization of husband’s disability retirement pay as his separate property. We conclude that under the circumstances of this case a portion of husband’s disa...
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*680 Opinion A jury found defendant guilty of assault with a deadly weapon (§ 245, subd. (a), Pen. Code). He appeals from the judgment. On his way home from a social gathering, George Anderson was warned by Wayne Daley, who rode up on his bicycle, that he might be in trouble; George turned around and saw defendant and Leon Johnson approach; Leon held a butcher knife; George ...
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Opinion Plaintiff, a deputy sheriff, has appealed from a judgment which denied his petition for writ of mandate, in which he sought review (Code Civ. Proc., § 1094.5) of a decision of the defendant board which adopted the proposed decision of a referee that the plaintiff was able to perform the duties of a deputy sheriff, despite his claim that he was permanently incapacitated physically ...
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Opinion Petitioner is the widow of Dr. Lawrence Grey. On April 5, 1974, Dr. Grey was killed when an automobile that he was driving rear-ended a parked truck. At the time of his death, Dr. Grey was insured under a policy issued by the real party in interest, whereby that company agreed to pay the principal sum of $10,000 on his death and an additional sum of $10,000 in case that death was accidenta...
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Opinion Statement of the Case Appellants were jointly charged by information with violation of Health and Safety Code section 11359, possession of marijuana for sale. Appellant Podesto was also charged with violation of Health and Safety Code section 11360, transportation of marijuana. Following denial of their respective 1538.5 motions to suppress, Podesto pleaded guilty to possessi...
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Opinion The People appeal from an order dismissing the information 1 pursuant to Penal Code section 1385 after the granting of a defense motion to suppress evidence pursuant to Penal Code section 1538.5, on grounds that all of the evidence acquired by the police after the arrest of defendant Baldwin was “fruit of the poisonous tree,” namely, the unlawful search of the home afte...
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Opinion The first three causes of action of plaintiff’s first amended complaint were against only Edward Lyons who apparently remains a party defendant to the lawsuit; the fourth, fifth and sixth causes of action are against Fireman’s Fund Insurance Company (hereinafter referred to as Insurer) alone. Insurer’s demurrer on the ground the pleading “fails to state a cause of action against” ...
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Opinion Statement of the Case In June 1974 this court issued a writ of mandate directing the trial court to issue a preliminary injunction enjoining respondent county from issuing to L. G. Kendall and Eastco, Inc., (Eastco) any building permits or other “entitlements of use” for the construction of Rancho El Contento subdivision and ordering Eastco to refrain from taking any further ...
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Opinion National Health Services, Inc., a corporation (National Health) and William H. B. Chan (Chan) filed two notices of appeal herein. One appeal is taken from order granting restraining orders against them pursuant to section 538.3, Code of Civil Procedure on January 23, 1975, the other from order of October 3, 1975, denying their motion pursuant to section 556, Code of Civil Procedure to dis...
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62 Cal.App.3d 797 (1976) 133 Cal. Rptr. 331 THE PEOPLE, Plaintiff and Appellant, v. JAMES ALFRED HOLLY, Defendant and Respondent. Docket No. 27600. Court of Appeals of California, Second District, Division One. October 13, 1976. *800 COUNSEL John K. Van de Kamp, District Attorney, Donald J. Kaplan and Barry R. Levy, Deputy District Attorneys, for Plaintiff and Appellant. Wilbur F. Littlefield, Pu...
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Opinion Plaintiff Joe B. Cramer appeals from the judgment entered following the grant of a motion for nonsuit in favor of defendant Queen of Angels Hospital. In his complaint, plaintiff alleged that he contracted serum hepatitis by reason of a blood transfusion administered to him while he was a patient in respondent hospital. Prior to trial, he elected to proceed on the theories of strict liab...
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*819Opinion Appellants pled guilty to possession of marijuana for sale (Health & Saf. Code, § 11359). They are appealing from the judgments (orders granting probation) under the authority of Penal Code section 1538.5, subdivision (m). Shortly after midnight on September 12, 1975, Los Angeles County Deputy Sheriff Bruce Wright was proceeding westbound on Firestone Boulevard in a marked patrol vehi...
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Opinion This is a proceeding in mandamus to compel discovery in a pending juvenile court matter (Welf. & Inst. Code, § 602) in which petitioner is charged with battery on a police officer. *826 Petitioner’s discovery motion sought information in police files regarding citizens’ complaints of excessive force or racial prejudice on the part of the arresting officers, Brogelman...
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Opinion David appeals from an order of the juvenile court, declaring him to be a ward of that court as being a person coming under section 602 of the Welfare and Institutions Code. We affirm the order. In a petition filed pursuant to Welfare and Institutions Code, section 602, on August 20, 1975, in juvenile court, appellant David W., a minor, was charged with grand theft of an automobile in ...
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*855 Opinion The People are petitioning for a writ of mandate, requesting that respondent court be directed to set aside its order granting defendant Michael McKunes’ discovery motion. The issue presented is whether a defendant charged with a violation of Penal Code section 245, subdivision (a) (assault with a deadly weapon) can compel discovery of information in the personnel file of a pol...
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Opinion Defendant was charged in an information filed by the District Attorney of Los Angeles County with the crimes of burglary and grand theft. After entering pleas of not guilty, defendant moved for an order of discovery of evidence in possession of the prosecution. The trial court, following a hearing on the motion, entered an order dismissing the information. The People have appealed fro...
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Opinion A 45-year-old woman underwent a routine hysterectomy at Feather River Hospital in Chico on September 28, 1970. The operation itself was successful, but she died three months later of serum hepatitis contracted from a blood transfusion administered during the surgical procedure. Her husband filed this wrongful death action against the doctors, the hospital, and the supplier of the ...
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*878Opinion Ferreira appeals from a judgment denying a petition for writ of mandamus in which he sought an order commanding respondent Swoap, then Director of the State Department of Social Welfare (hereafter Director), to set aside an order and decision issued on August 7, 1973, in which the Director found Ferreira ineligible for aid to the needy disabled (ATD), as then provided by sections 1350...
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Opinion By information No. A436763, appellant was charged with two counts of forgery (Pen. Code, § 470), and two prior felony convictions (one in 1969 and one in 1971 were alleged). On December 4, 1974, appellant pled not guilty. By information No. A436996, appellant was charged with possession of heroin (Health & Saf. Code, § 11350), and the two prior convictions previously alleged ...
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*917 Opinion Earl Lee Stevenson was charged with violation of section 11351 of the Health and Safety Code, possession for purpose of sale of heroin. His motion to traverse the search warrant and suppress the evidence obtained thereby was granted, and the information was dismissed pursuant to section 1385 of the Penal Code. The People appeal from the order suppressing evidence and dismissing t...
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Opinion Plaintiffs filed a complaint, 1 in seven causes of action, claiming fraud, breach of contract, rescission and declaratory relief. Of the seven causes of action, only two (the first and fourth) purported to state a cause of action against defendant Marilyn Schlocker. Those causes of action sought recovery from her for fraud in inducing plaintiffs to enter into a contract. Marilyn’s mot...
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Opinion Petitioner Kathleen Fisher is the widow and petitioner Donna Fisher the daughter of Donald Fisher. After the Workers’ Compensation Appeals Board denied their claim for death benefits, we issued a writ of review. The appeals board’s denial was based upon the last paragraph of Labor Code section 5406, that paragraph being italicized in the following excerpt: “The period within which may be c...
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Opinion Diane Bojorquez, a minor, appeals through Rachel Bojorquez, her guardian ad litem, the summary judgment dismissing her complaint against Southland Corporation (dba 7-11 Food Stores), William and Hollis Wade (dba 7-11 Stores), and House of Toys, Inc. Four children went to a 7-11 Market and one of them bought a slingshot distributed by House of Toys. Charles Sellers, a 10-year-old membe...
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*937 Opinion Introduction This case is the outgrowth of a dispute between the Council of Supervising Judges of the Municipal Court of San Bernardino County and that county’s board of supervisors. One of the judges made an order in February 1975 directing the Marshal of San Bernardino County to hire two additional deputies and to procure all necessary equipment to support the hirings ordered...
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Opinion Plaintiff appeals from a judgment dismissing his action for damages against defendant State of California (hereinafter “the State”) following the sustaining of a demurrer to the complaint without leave to amend. *963 The complaint alleges as follows: On August 23, 1972, plaintiff applied for benefits under the aid to the totally disabled program (hereinafter “ATD”); ...
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*974 Opinion Petitioners are defendants in a pending medical malpractice action filed by real party in interest in respondent court on June 7, 1971. Trial in said action was originally set for October 1, 1975. In September 1975, counsel for real party received word from real party’s wife that real party was hospitalized with cancer in Florida where he then resided and would be unavailable for...
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Opinion This is a proceeding in administrative mandate (Code of Civ. Proc., § 1094.5) to review a decision to the Board of Trustees of the Pasadena Unified School District not to re-employ 171 certificated employees for the school year 1974-1975. The trial court denied affirmative relief to petitioners, 24 probationary teachers who received termination notices, but ordered respondent boar...
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Opinion Cross-complainants, who in the lower court were, and will be here, collectively referred to as McAdams, have appealed from a judgment which denied their claim to one-half of the timber rights on lands which in 1958, as a result of the dissolution of a partnership, had been distributed to cross-defendants, who similarly were, and will be, collectively referred to as Ogletrees. They...
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Opinion Plaintiff appeals from a judgment denying his petition for a writ of mandate to compel the defendant to pay him unemployment insurance benefits. The record discloses that, on August 1, 1974, the Employment Development Department denied plaintiff, Douglas Evenson, unemployment benefits. There were two grounds for this action: first, that he voluntarily terminated his employmen...
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Opinion The People appeal, pursuant to Penal Code section 1238, subdivision (a)(7), from an order of the superior court dismissing a pending criminal prosecution pursuant to Penal Code section 1385 after that court granted the defendant’s motion to suppress on the ground that the evidence was the product of an unlawful entry to serve a search warrant for failure to comply with Penal Code sectio...
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Opinion The trial court sustained without leave to amend a demurrer to plaintiff’s complaint for recovery of a deficiency arising from the resale of farming equipment sold to and later repossessed from defendants. Plaintiff appeals from the ensuing judgment of dismissal. The issues to be determined on this appeal are: (1) the statute of limitations applicable to an action for recovery of ...
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Opinion The defendant has appealed from his conviction for a violation of section 654.1 of the Penal Code. Factual Background Officer Victor Luis Carranza testified that he observed the defendant solicit two persons to pay $7 for transportation to Tijuana in his car. The People rested without presenting any evidence that the defendant was not authorized by law to provide such transportation or t...
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Opinion Issues This venue case presents two novel issues. First, must all actions brought against an executor to recover money or personal property be commenced in the county which has jurisdiction over the estate? Second, if an action is erroneously commenced in the wrong county, under what circumstances may attorney fees be awarded pursuant to Code of Civil Procedure, section 396b? Facts Appell...
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Opinion Defendant was charged with violation of section 22348, subdivision (a) of the Vehicle Code; he pleaded nolo contendere and then made an explanation, following which he asked that he be permitted to attend traffic school. Defendant contends that the court would not permit him to attend because he gave his explanation before asking for traffic school. The trial court declared in its certifie...
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Opinion Defendant has appealed from a judgment for plaintiff awarding costs of parts and labor expended in repairing defendant’s automobile. Pertinent Facts: Plaintiff, Karl Schreiber, doing business as Schreiber Motors, was engaged in the business of repairing and servicing foreign cars. In October of 1972, defendant, Thomas Kelsey, brought his 1956 Porsche “Speedster” automobile to plaintiff “...
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Opinion Eliot Beddoe was the income beneficiary of a testamentary trust under a will executed by his mother, Madeleine L. Moulton, on July 24, 1923. After Eliot’s death in 1973, the trustee petitioned the probate court for instructions concerning the distribution of the trust corpus. The court ordered the trust property distributed to Pamela Beddoe as the surviving “lawful issue” of Eliot, who had...
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Opinion Defendant John L. Nelson appeals from the judgment entered after a jury convicted him of first degree murder (Pen. Code, § 187). At the trial the People urged his conviction of murder in the first degree not only on the ground the homicide was deliberate and premeditated, but also on the ground that Nelson committed the killing in the perpetration of, or in the attempt to perpetrate, ra...
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Opinion Petitioner appeals from a judgment (order of dismissal) entered after an order sustaining, without leave to amend, a demurrer to its petition for a writ of administrative mandamus. We affirm the judgment. Petitioner is the owner of real property in the County of Los Angeles. The county assessor assessed that property, for the tax year 1974, at $250,000 market value, with an assessed v...
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*43Opinion Plaintiff and appellant appeals from a judgment of the San Francisco Superior Court denying her petition for a writ of mandate. Issues Presented 1) The respondents did not wrongly deny the appellant benefits. 2) The evidence supports the findings of fact. Record Appellant is and for the past five years has been employed by the San Rafael City Schools as a classified employee, an instruc...
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*50 Opinion Plaintiff, injured in an automobile accident, seeks to obtain coverage under the general liability coverage provisions of the defendant-driver’s “homeowner’s” insurance policy. The injured party, Cheryl DeBoer (herein referred to as “plaintiff,” although she is a defendant in this action for declaratory relief filed by the insurer, State Farm Fire & ...
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Opinion Appellant, a land developer, has appealed from a judgment that denied its petition for a writ of administrative mandamus in which it sought, among other relief, a judgment that it was entitled to an exemption from the provisions of the California Coastal Zone Conservation Act of 1972 (Pub. Resources Code, § 27000 et seq.) to the full extent requested in its application (see Cal. A...
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Opinion Statement of Facts On May 5, 1972, appellant Meininger and respondent Larwin-Northem California, Inc. entered into a written contract whereby appellant was to perform certain painting work as respondent’s subcontractor. When a dispute arose between the parties, appellant filed a complaint for breach of contract, alleging that respondent owed him $17,384.76 under the terms of the c...
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Opinion Plaintiff Nick Verreos, a resident and taxpayer of the City and County of San Francisco, brought a class action on behalf of all other individuals similarly situated, seeking to prohibit the implementation of a strike settlement agreement pursuant to which Mayor Joseph Alioto had agreed to grant San Francisco’s policemen and firemen a 13.05 percent raise in salary. Plaintiff sough...
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*112 Opinion Plaintiff, Joyanne Douglas (Douglas), sought an administrative writ of mandate (Code Civ. Proc., § 1094.5) directing the California Unemployment Insurance Appeals Board (Board) to set aside its decision denying her unemployment benefits. On this appeal from the judgment denying the writ, she contends that: 1) the court erred and exceeded its jurisdiction in making findings that d...
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Opinion Independent Plumbing Co., Inc. appeals from an order denying a lien on a cause of action in which appellant’s judgment debtor (Atiya) is plaintiff. A motion by appellant “For an Order for Lien in Cause of Action” was submitted on declarations which established that appellant had obtained a judgment against Atiya in a Fresno municipal court action in the sum of $3,500. This judgmen...
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Opinion Defendant Southern Pacific Transportation Company appeals from an order of the superior court granting plaintiff Richard Morse a new trial in an action for damages for personal injury under the Federal Employers’ Liability Act (45 U.S.C.A. § 51 et seq., hereinafter “FELA”). The court granted plaintiff’s motion for new trial on the ground of error of law in admitting evidence not a...
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Opinion Petitioner Harold F. Coffin appeals from an order vacating and setting aside that portion of an interlocutory judgment of dissolution of marriage (rendered after an uncontested hearing upon the default of respondent Lois A. Coffin) “which relates to the award or distribution of community property ...” The petition for dissolution was filed by petitioner on September 4, 1974. ...
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Opinion Petitioner, Ethel Lee Bonner, seeks a peremptory writ of mandate to require respondent superior court to vacate its order denying petitioner’s claim of an exemption from execution for real property upon which a declaration of homestead was filed December 15, 1967. At the time the declaration was filed, the property (title to which was in joint tenancy) was the community property o...
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Opinion This is a petition for a writ of mandate asking us to. direct the trial court (Los Angeles County Superior Court) to set aside its order. Petitioner Cohen is a defendant in a personal injury action filed by the real party in interest (plaintiff) whose complaint alleged that Cohen’s codefendant struck plaintiff in a car, after codefendant had consumed liquor in petitioner’s bar, “The T...
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Opinion This is a proceeding in mandamus brought after respondent court overruled petitioners’ demurrer to the second cause of action of a pending cross-complaint. We issued an alternative writ and set the matter for oral argument to enable us to consider the following question of first impression: Does section 632 of the Penal Code 1 prohibit one participant to a telephone conversation from ...
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Opinion Introduction Petitioners [appellants] nine firemen retired from the City of Santa Monica Fire Department (hereinafter petitioners) appeal from the judgment denying their petition for writ of mandate seeking to compel respondent City of Santa Monica (hereinafter City) and certain of its officers to make monetaiy payment to each of them for unused sick leave days which had been...
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Opinion These are cross-appeals in a mandamus proceeding, which was brought on behalf of all of the employees of the Department of Water and Power of the City of Los Angeles (hereafter DWP) by petitioners and appellants, Bernard C. Gottlieb, et al. DWP and its board of commissioners 1 have cross-appealed. The judgment under appeal and cross-appeal denied all relief to petitioners, but expre...
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*214 Opinion Defendant was convicted by juiy verdict of pandering (Pen. Code, § 266i), and sentenced to state prison. He appeals from the judgment. At the age of 16, Gail ran away from home and came to San Bernardino. By lying about her age, she obtained a job as a waitress in a Sambo’s restaurant working the night shift from about 9 p.m. to about 6 a.m. Defendant was a regular customer at ...
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*245 Opinion Charles Clyde Stackhouse seeks a writ of prohibition to restrain his trial in respondent court on certain misdemeanor charges. (See Seiterle v. Superior Court, 57 Cal.2d 397, 399 [20 Cal.Rptr. 1, 369 P.2d 697].) On August 23, 1976, this court granted an alternative writ of prohibition and set the matter for hearing. We now think that the trial o...
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Opinion Kenneth Leroy Howard appeals from a judgment of conviction of possession of a concealable firearm by a convicted felon. (Pen. Code, § 12021.) The appeal lies. (Pen. Code, § 1237, subd. 1.) Appellant Howard contends that: (1) the police violated his constitutional rights when they illegally entered his apartment building through a locked security entrance; (2) they searched his apartme...
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Opinion Plaintiffs appeal from an order granting defendant bank’s motion to quash service on it. For the reasons set forth below, we reverse the order. Plaintiffs sued to recover rent allegedly unpaid on leases of real property in California. The complaint joined, as a defendant, respondent bank, a national banking institution having its place of business in Illinois. The bank was joined on the th...
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*267 Opinion Appellant, Navajo Freight Lines, was the defendant in a suit brought by respondent, Vacco Industries, to recover losses for goods shipped by respondent and allegedly damaged in interstate transit by appellant carrier. The action was tried to the court, sitting without a jury, and proof was adduced that appellant had failed as common carrier to deliver the consigned m...
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Opinion After pleading guilty to possessing marijuana for sale (Health & Saf. Code, § 11359), Edward Charles Gray was sentenced to prison for the term prescribed by law. The trial court, however, suspended execution of sentence and placed Gray on probation for three years. Among other things, his probation was conditioned upon his serving 45 weekends in the county jail. Gray was admitted ...
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Opinion The issue presented by this appeal is whether a corporation, as distinguished from a natural person, can qualify for a loggers’ lien under Civil Code section 3065. We conclude that it can. . Appellant, Acco Contractors, Inc., a corporation (hereinafter “Acco”), filed suit against.. Standard Plywood Corporation (hereinafter “Standard”), not a party to this appeal, and responde...
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Opinion In this action four civil service attorneys employed in the Legal Division of the State Department of Transporta *300 tion (together with several representative organizations) seek salaiy parity with attorneys having equivalent positions in other state agencies. Their appeal requires analysis of Government Code section 18850, the statute which expresses the standards ...
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63 Cal.App.3d 306 (1976) 133 Cal. Rptr. 703 ERNEST J. BAKMAN et al., Petitioners, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; CITY OF FRESNO, Real Party in Interest. Docket No. 2951. Court of Appeals of California, Fifth District. November 2, 1976. *310 COUNSEL Fadem, Berger & McIntire, Michael M. Berger, Michael V. McIntire and Lerrigo, Thuesen, Walters, Nibler & Hendrick for Pet...
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Opinion Statement of the Case The will of the decedent, Pearl Phyllis Taff, dated February 28, 1961, was admitted to probate, and Clarence Aulman was appointed executor. Thereafter appellants, all related to the decedent’s predeceased husband, Hariy C. Taff, petitioned the court to determine heirship and for an order that they were intended as heirs of Pearl Taff under her will and entitled to dis...
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Opinion The appellant, Joseph Moya Gomez, was convicted of robbery in the second degree (Pen. Code, §§ 211, 211a) and was sentenced to state prison. He appeals. He raises several points regarding the alleged invalidity of his arrest and the search of the premises where he was arrested, the failure of the court to suppress an in-court identification of appellant by the victim, and misconduct of ...
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Opinion Lisa Jean Richmond appeals from a summary judgment dismissing her complaint for damages for personal injuries. On the motion for summary judgment it was shown that at 8:45 p.m. on July 25, 1974, counsel for plaintiff presented to a judge of the superior court for filing a complaint to recover damages from respondent Mary Shipman resulting from an automobile accident which occurred...
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Opinion Plaintiffs (David and Margaret Wheeler, husband and wife) were compelled to submit their alleged medical malpractice claims against defendants to arbitration. The arbitration proceedings resulted in an award in favor of defendants and against plaintiffs. This appeal presents two basic issues: (1) Whether there was an enforceable agreement to arbitrate and (2) whether the award sho...
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*384 Opinion Statement of the Case On May 14, 1974, appellants, pipefitters and refrigeration fitters employed by the City of Fresno, filed a petition for writ of mandamus "to compel the Fresno City Council to adopt a salary resolution amendment which would give them a 50-cent per hour wage increase retroactive to July 1, 1973, and would result in appellants receiving a rate...
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Opinion Facts On August 3, 1975, Susan B., the victim herein, accompanied her boyfriend, Robert Souza, from Ceres in Stanislaus County, to Fresno. They had made a prior arrangement to meet two mutual friends, Richard and Sharron Kelly, husband and wife, at a motel. All four of them had come to Fresno with the intention of obtaining and using heroin. Susan and her boyfriend arriv...
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Opinion Defendant and appellant Marin County Employees Retirement Board appeals from a judgment of the Marin County Superior Court ordering the issuance of a peremptory writ of mandate. Issues Presented 1. The Legislature has not evidenced an intent that disability claims arising under workers’ compensation law and county employees’ retirement law be treated differently. 2. The courts hav...
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Opinion On January 28, 1975, one year after appellant was retired from the City of Santa Monica, he filed a petition for a writ of mandate for damages, and to compel respondents to include him under, and provide him with, the benefits of resolution No. 4413. Resolution No. 4413 ratified a memorandum of understanding (hereinafter MOU) dated August 1973, executed between the City of Santa *437 ...
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*459 Opinion The Case Plaintiffs Grace E. Simons, Lawrence E. Emme, Irene Ferguson, Margaret Heerdt, and Lewis H. Heerdt (hereinafter referred to collectively as Simons) appeal from a judgment by the trial court, sitting without a jury, denying their request for a permanent injunction against the City of Los Angeles (hereinafter referred to as the City) and various identified agencies and o...
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Opinion Welfare and Institutions Code section 5116, enacted in 1970, provides in part: “. . . a state authorized, certified, or licensed family care home, foster home, or group home serving six or fewer *476 mentally disordered or otherwise handicapped persons or dependent and neglected children shall be considered a residential use of property for the purposes of zoning if s...
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Opinion In 1972, petitioner board, a Texas corporation, entered into a contract with General Automated Systems of Texas, Inc. (Gastex), a California corporation, for the construction of an airport parking control system. That contract was entered into in Texas and was to be performed there. Gastex secured performance bonds from Agricultural Insurance Company (now known as American Empire Insurance...
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Opinion Defendant, the father of two minor children, appeals from an order of the superior court directing him to pay to the county $3,800 as accrued and unpaid child support and $100 per month for future child support. For the reasons set forth below, we modify the order and affirm it as modified. *489I By a decree of dissolution, entered on July 6, 1965, defendant was ordered to pay to his ex-wi...
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Opinion Pifie M. Martinez (appellant) appeals from a judgment denying his petition for a writ of mandate requiring the California Unemployment Insurance Appeals Board (respondent) to set aside its decision that he had not shown good cause for his failure to file a timely appeal from a decision denying benefits. Appellant had been employed by the Broadway Department Store as a commissary baker. His...
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Opinion Plaintiff employer has appealed from a judgment of the superior court which denied its petition for writ of mandate (Code Civ. Proc., § 1094.5). It sought review of a decision of defendant appeals board, which summarily reversed a finding of a referee that the employer had good cause for filing a late appeal from an original departmental *509 determination that denied the employer’s o...
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Opinion This is an appeal from the trial court’s judgment dismissing appellants’ action after respondent’s demurrer to the second amended complaint was sustained without leave to amend. Respondent, More Oakland Residential Housing, Inc., a nonprofit corporation, owned and operated highrise apartment houses in Oakland, California. The purpose of the apartment complex was to replace slum dwelli...
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I agree that the mere referral of a patient to a California physician is insufficient to subject the out-of-state clinic to the jurisdiction of the California courts. Here, however, petitioner has subjected itself to jurisdiction by causing an “effect” in the state by an act or omission which occurred in Washington. (See Quattrone v. Superior Court (1975) 44 Cal.App.3d 296, 303 [118 Cal.Rptr. 548]...
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*561 Opinion Respondent board has refused to submit an initiative petition to vote of the people on the ground that the subject-matter is beyond the scope of the initiative process. The proposed initiative would require renovation of the present Santa Cruz County jail, rather than construction of a new jail. Petitions were filed with the county clerk who certified the signatures of the requir...
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Opinion Petitioner Zsuzsanna Bartha, also known as Z. Budapest, was convicted in Los Angeles Municipal Court of a misdemeanor, *587 violation of Los Angeles Municipal Code section 43.30, fortunetelling. 1 The appellate department of the superior court affirmed the judgment and denied a motion to certify the case to the Court of Appeal pursuant to rule 63 of the California Rules of Court. Co...
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Opinion Upon trial of a special defense (see Code Civ, Proc., § 597) the trial court held that exclusive jurisdiction of plaintiff’s claim was vested in the Workers’ Compensation Appeals Board. (See Lab. Code, §§ 3600, 3601.) Plaintiff appeals, contending that the exclusive remedy provision of Labor Code section 3601 is outside the scope of the constitutional authorization for a workers’ ...
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Opinion Riviera and Rodrigues appeal from a conviction by court trial of violating Penal Code section 647, subdivision (a). The complaint charged them with unlawfully engaging in “lewd and dissolute conduct in a place exposed to public view.” Riviera filed a brief in which Rodrigues later joined, and an amici curiae brief was submitted by attorneys for the American Civil Liberties Union Foundatio...
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Opinion Defendants Sea World and Kent Burgess have appealed from a judgment entered on a jury verdict awarding Anne E. Eckis $75,000 in compensatory damages. 1 Plaintiff had sought both compensatory and punitive damages for personal injuries she sustained while riding “Shamu the Whale,” framing her complaint on three theories: fraud, negligence, and liability for an animal with vicious or dan...
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Opinion Zardies B., a minor, appeals the order committing him to the. California Youth Authority (CYA). On January 9, 1976, at about 9 a.m., Zardies and eight other boys stood outside a classroom at Wilson Junior High School, yelling and talking. The teacher in the classroom, Perriana Azevedo, asked them to leave. Zardies went into the classroom and when asked again by the teacher to leave, f...
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Opinion Defendant was charged with petty theft with a prior felony commission in violation of section 667 of the Penal Code and prior, convictions of first degree robbery in violation of section 211 of the Penal Code, and of maintaining a place where narcotics were used in violation of former section 11557 (see present § 11366) of the Health and Safety Code. He admitted the prior convicti...
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Opinion Mary Louise Anderson appeals on a limited record from that portion of an interlocutory judgment of dissolution of marriage which purports to distribute pension benefits between herself and her estranged husband William Grayson Anderson. Pursuant to California Rules of Court, rule 12(a), we have augmented the record to include the entire superior court file in the above action. Facts ...
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*56 Opinion On the petition of respondents John and Anita Scrogings, the trial court granted a peremptory writ of mandamus ordering George Kovatch, Sonoma County Planning Director, the Board of Zoning Adjustments of Sonoma County and the Board of Supervisors of Sonoma County to issue a zoning clearance to respondents so that a building permit might be issued for construction of a...
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Opinion Appellant Gloria Paulus filed a petition for writ of mandate, seeking to compel respondents Board of Trustees of the Sequoia Union High School District (hereinafter Board) and the Sequoia Union High School District (hereinafter District) to classify her as a *61 probationary teacher and to set aside her dismissal as an employee of respondent. The appeal is from the ju...
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Opinion Petitioner, City of Long Beach, seeks a “writ of prohibition or other appropriate relief’ permanently restraining respondent Superior Court of the State of California for the County of Los Angeles from enforcing its order requiring that petitioner answer a particular interrogatory. 1 The interrogatory reads as follows: “9. List the witnesses whom you intend to call at t...
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Opinion This is an appeal from an interlocutoiy judgment of dissolution of marriage. Resolution of the issues raised requires: (1) consideration of an apparent conflict in the rationale of Court of Appeal decisions dealing with the power of the trial court to order termination of spousal support in the future without reservation of jurisdiction to modify the determination (see e.g., In re Marr...
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*112 Opinion Defendant, April Knisely, appeals her conviction of possession of a controlled substance for sale, i.e., L.S.D., a violation of Health and Safety Code section 11378. Defendant entered a plea of guilty after denial of a motion to suppress evidence, i.e., L.S.D. she allegedly sold to a man and L.S.D. found in a police car under circumstances supporting the conclusion it belonged ...
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Opinion Plaintiff and appellant, Robert L. Chesney, filed this action against the State of California, the County of Merced, Lynn Gresham, as Tax Collector of the County of Merced, David R. Hudgins as Assessor of the County of Merced, and John Hovannisian to set aside a tax sale and deed to the State of California and a subsequent sale and deed of the property to Hovannisian, and in the a...
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Opinion Statement of the Case Appellant and his wife, Lynda Tabucchi, were charged in the County of Stanislaus of the crimes of count I, violation of Penal Code section 182 (conspiracy); count II, violation of Health and Safety Code section 11379 (transportation and sale of a controlled substance—phency clin dine); count III, violation of Health and Safety Code section 11359 (possess...
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Opinion Appellant, the Director of Department of Benefit Payments (hereinafter the Department), appeals from an order of dismissal made pursuant to Code of Civil Procedure section 581, subdivision 3, after the trial court sustained the general demurrer of the Regents of the University of California (hereinafter the Regents) to the Department’s petition for writ of mandate. The Department ...
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*171 Opinion This is an appeal by certified school nurses, Dorothy Rutherford and Clarice Tremaine, from a superior court judgment denying their petition for a writ of mandate to reverse their dismissals as employees of the Bellflower Unified School District. The case now before us concerns appellants’ employment for the school year 1973-1974. The same parties had been involved in previous li...
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*183 Opinion Statement of Facts Floyd Sherman Adams (husband), appellant, and Ida Jean Adams (wife), respondent, were married on July 27, 1947. On March 1, 1949, husband was employed by the City of Pasadena as a fireman and served in that capacity until 1962, at which time he became a fire inspector. The parties separated on September 30, 1970. Thereafter; wife filed an action for dissoluti...
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Opinion By these proceedings petitioner, Atchison, Topeka and Santa Fe Railway Company, an interstate rail carrier, seeks by way of extraordinary relief (see Lab. Code, § 6308) to annul a special order of the Division of Industrial Safety of the State of California (hereinafter “Division”) which, as finally adopted, ordered petitioner to undertake an employee training program. The order provided:...
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Opinion Plaintiff was appointed principal of a high school in Vacaville Unified School District at the opening of the 1973-1974 school year, and was re-employed the following year. No performance rating was prepared in his first year as principal, and apparently no difficulties arose. On September 23, 1974, however, the district superintendent met with plaintiff and suggested a number of improv...
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Opinion On this appeal by Plumbing, Heating and Piping Employers Council, et al. (hereafter Employers Council) from a portion of an order dated April 5, 1976, denying its motion for attorney’s fees, pursuant to Government Code section 800, the only question is whether the trial court abused its discretion. We affirm, as the record indicates that the question of whether there was any arbit...
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Opinion On September 5, 1974, respondent Leo Marcotte was charged by complaint filed in the Santa Clara County Municipal Court with misdemeanor drunk driving. (Veh. Code, § 23102, subd. (a).) On October 22, 1974, the municipal court granted a motion by Marcotte (Pen. Code, § 1538.5)"to suppress a blood sample as evidence. Trial was set for November 19, 1974. The district attorney filed a noti...
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Opinion This appeal turns on the question whether a transaction between appellants All-American Mobile Wash, et al. and respondent Triple C. Leasing, Inc. was a true chattel lease, as found by the trial court, or a security transaction governed by the Uniform Commercial Code, as contended by appellants. Respondent obtained from Equipment Sales and Service (hereinafter “ESS”) a van co...
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*254 Opinion John Wyman appeals from a judgment declaring void his claim that respondent Lumberman’s Mutual Casualty Company is liable to pay benefits to him under the uninsured motorist provisions of an automobile liability policy issued to his father, Richard Wyman. The automobile liability insurance policy in question, including uninsured motorist coverage, was in effect ...
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Opinion Plaintiff, a small engineering firm that provides electrical and mechanical engineering design services, has appealed from an adverse *265 judgment in an action in which it sought a declaration that the defendant insurer was obligated to defend it and indemnify it, within the policy limits, against a. claim, asserted by an architectural firm to whom it had furnished s...
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Opinion Plaintiff, Arneill Ranch, a limited partnership, appeals from a summary judgment in favor of defendants Francis Petit, as trustee under the trust created by the terms of the last will and testament of Nancy A. Gibson, deceased, Donald A. Gibson, and Franklin Lawrence Gibson, Jr. The complaint sought damages in treble the amount of usurious interest allegedly received by defendants...
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Opinion The People of the State of California appeal from a judgment of dismissal following the grant of a Penal Code section 1538.5 motion by defendant, Reymundo Frausto Perez, to suppress certain evidence (a balloon of heroin). The appeal lies. (Pen. Code, § 1238. subd. (a)(7).) Defendant was charged with possession of heroin, a violation of Health and Safety Code section 11350. The charge ...
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Opinion This litigation started as a suit for personal injuries and property damage brought by plaintiff David Dorshkind against defendants Harry N. Koff Agency, Inc., a corporation, and Ida Koff, after a vehicle driven by Dorshkind collided in an intersection with a vehicle owned by the Koff Agency and driven by Ida Koff, on June 18, 1973. Defendants Ida Koff and the Koff Agency cross-complain...
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Opinion By information, defendant was charged with the offense of assault with intent to commit rape, in violation of Penal Code section 220. Defendant entered a plea of not guilty. Thereafter, defendant waived his right to a jury trial and consented to a court trial with a partial submission of the case on the preliminary hearing transcript. The parties stipulated that the testimony containe...
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Opinion Appellants filed two actions in Riverside and Los Angeles counties against defendants and respondents Trans-West Discount Corporation, et al. Appellants petitioned the Los Angeles Superior Court to coordinate the actions. The petition was denied on August 10, 1976. Notice of appeal from the order of August 10, 1976, was filed on September 14, 1976. Section 904.1 of the Code of Civil P...
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Opinion The appeal at hand concerns the question whether certain agreements executed pursuant to the California Land Conservation Act *322 of 1965 (Gov. Code, 1 §§ 51200-51295, hereinafter Williamson Act 2 ) contain an “enforceable restriction” within the meaning of the Constitution and the statutory provisions enacted pursuant thereto (Cal. Const., art....
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Opinion Adopted by the 1971 Legislature and by the terms of the enacting statute operative January 1, 1972 (Stats. 1971, ch. 1150, § 4) to actions filed on or after January 1, 1971 (id., § 3) and to “remain in effect only until December 31, 1973, and as of that date . . . repealed” (id, § 5), sections 576.5 and 999 of the Code of Civil Procedure embodied, during their self-limited duration,...
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Opinion This appeal, while broadly framed, primarily presents the narrow issue of the power of a trial court acting on a petition filed under the Red Light Abatement Law to grant relief by preliminary injunction, effectively closing the property claimed to be a nuisance. Concluding that the relief is appropriate only in a judgment on the merits and not by provisional remedy, we reverse the orde...
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Opinion Lawrence Murray was charged with possession of marijuana (Health & Saf. Code, § 11357, subd. (a)), possession of *344marijuana for sale (Health & Saf. Code, § 11359), and possession of a controlled substance (Health & Saf. Code, § 11378). Finding that the officers did not comply with Penal Code section 844, the trial court set aside the information pursuant to section 995 of the Penal Cod...
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Opinion By an information defendant was charged with entering the residence and building occupied by Georgia Ellen Pettit with intent to commit petty larceny, a violation of Penal Code section 459, which was amended to charge he entered a residence and trailer coach; was convicted; and appeals. *378 On appeal defendant contends: (1) the trial court erred prejudicially in failing to instruct...
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Opinion This is an appeal from a judgment in an administrative mandamus proceeding under section 1094.5 of the Code of Civil Procedure, in which the trial judge, having exercised his independent judgment on the evidence, sustained a decision of the California Unemployment Insurance Appeals Board. By the board’s decision, which adopts the referee’s statement of facts and reasons for decisi...
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Opinion Introduction This is an appeal from an order of the superior court denying a motion to vacate forfeiture and exonerate a bail bond which had been posted on behalf of the defendant in the principal criminal action, People v. Slaughter [Henry Wallace], Los Angeles Superior Court No. A311401. The specific determinative issue presented is whether or not the superior court re...
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Opinion Plaintiff is the widow of Perry M. Kuntz, who died as the result of a pulmonary embolus (a blood clot in the lung) he *417 sustained as a consequence of heart surgery. At the time of his death, Mr. Kuntz had been a member of defendant Kern County Employees’ Retirement Association for many years, and the sole issue is whether there was substantial evidence to sustain the trial court’s ...
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Opinion This is an appeal from a summary judgment granted in favor of defendant City of Mountain View and against plaintiffs Robert Hirsch and Central Park Apartments and from the judgment entered in favor of defendant. The complaint alleges that Hirsch is a general partner in the partnership known as Central Park Apartments; that he is the owner of real property commonly known as 90...
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Opinion In this opinion, petitioner will be referred to as defendant, and the real party in interest as plaintiff. In a jury trial below, plaintiff was awarded a judgment of $2,100 in an action for damages for personal injuries. Neither party moved for a new trial within the 15-day period allowed for such motion. (Code Civ. Proc., §§ 659, 663a.) 1 Because defendant had made an offer befor...
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Opinion Teachers Management & Investment Corporation and Lighthouse Point, Ltd. (hereinafter collectively “plaintiffs” or “TMI”) appeal from a judgment dismissing their complaint against the City of Santa Cruz. The complaint sought declaratoiy and injunctive relief on the theory that an initiative ordinance of the city was void. The judgment of dismissal was rendered after the court susta...
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Opinion The San Francisco Police Officers Association appeals from a judgment which denied relief upon its complaint for an injunction and a writ of mandate requiring respondents, the City and County of San Francisco, its mayor, board of supervisors, and police commission to give effect to certain agreements regulating the terms of service of San Francisco police officers. We reverse the ...
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I concur. For jurisdiction, the juvenile justice scheme relies on status rather than crime, and for remedy, on declaration of wardship and treatment rather than conviction and punishment. (Welf. & Inst. Code, §§ 602, 725.) Its ultimate purpose is treatment of the ward to promote his welfare. (Welf. & Inst. Code, §§ 502, 731.) At bench, following what amounted to a trial de novo the court was requi...
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Opinion Appellant’s car was burglarized sometime between 10 p.m. on December 31, 1971, and 6 a.m. of the following day. Appellant sued respondent Mercury Casualty Company (Mercury), appellant’s insurer, and in his first cause of action prayed for compensatory damages in the amount of $1,000, respondent having denied liability on the *473 ground that appellant’s policy had lap...
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Opinion Plaintiff Michael Heniy Forde appeals from a summaiy judgment in favor of defendant County of Los Angeles and 11 individual defendants—physicians and a nurse employed by the County. Facts The undisputed facts are based on the statement appearing in plaintiff’s opening brief. Plaintiff was admitted to Los Angeles County Hospital on August 29, 1971, suffering an acute psyc...
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Opinion This appeal is by Willis B. Hall from a judgment denying his petition for mandate directed to the Bureau of Employment Agencies (Bureau), which is within the Department of Consumer Affairs of the State of California and is charged with the licensing and regulation of employment agencies. Mr. Hall is a licensee of the Bureau and has been since 1968. His headquarters is in the ...
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Opinion Defendant Francine Elaine Dooley’s appeal is from an order granting probation, following her plea of guilty to possession of a controlled substance for sale (Health & Saf. Code, § 11378). For the reasons which we now state, the appeal is found to be without merit and the order granting probation will be affirmed. *505 The appeal concerns the validity of a Federa...
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Opinion A four-count information charged Evans, Kelso and others jointly; (count I) with the murder of Hempy on 5 February 1975, a felony, in violation of Penal Code section 187; (count II) with an assault with a deadly weapon with intent to murder Burnett on 5 February 1975, a felony, in violation of Penal Code section 217; (count III) with the kidnaping of O’Hara on 5 February 1975, a felony,...
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Opinion In a jury trial the defendant Eugene Sims was convicted of rape in violation of Penal Code section 261, subdivision 3 and kidnaping in violation of Penal Code section 207. Probation was denied and as to each count defendant was sentenced to the state prison for the term prescribed by law; the sentence as to Count II was stayed pending appeal, said stay to become permanent upon a judgmen...
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Opinion Plaintiffs are property taxpayers in Alpine County. They paid taxes under protest and filed four separate refund actions in the superior court, which entered a judgment denying relief in all four actions. The taxpayers appeal. *562 Necessity for notice of revaluation by State Board of Equalization In action No. 312 plaintiffs object to the assessment of thei...
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Opinion In a wrongful death action, defendant Solano Concrete Company, Inc. (hereinafter “Solano”), filed a cross-complaint requesting a declaration of its asserted right to indemnity from the decedent’s *574 employer, Lund Construction Company (hereinafter “Lund”). The court sustained a demurrer to the cross-complaint without leave to amend on the theory that under Labor Cod...
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Opinion Plaintiff Verner Carlsen commenced this action to obtain a writ of mandate vacating and setting aside certain administrative decisions which denied his claim for unemployment insurance benefits. 1 The trial court upheld the administrative decisions and rendered judgment denying the writ of mandate. Plaintiff appeals from said judgment. The facts relevant to this appeal may be summar...
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*595 Opinion Plaintiff appeals from summary judgment 1 entered in favor of defendants. The complaint alleges that at the time of the incident in question, defendants Alvarez and Smith, employees of the City of Compton, were acting within the course and scope of their employment. 2 The critical allegation of plaintiff’s first cause of action recites that...
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Opinion This proceeding was initiated by petition for writ of habeas corpus filed by William T. Farr to review an order of commitment made by Judge Older on August 6, 1974, imposing a sentence of five days imprisonment in the county jail and a fine of $500. Petitioner’s challenge *609 to this order was based on a double jeopardy—res judicata—collateral estoppel theory. We requested, and there...
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Opinion Defendant M. Louise Robledo appeals from that portion of a judgment in her favor awarding her attorney’s fees in less than the amount requested, and from a subsequent order denying her motion for additional attorney’s'fees after judgment. The background of the litigation is that in 1965 plaintiff Stephen L. Melnyk purchased an apartment complex, executing a note secured by a ...
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*629 Opinion Plaintiff Ralph Hein brought this action to recover damages on an undertaking given by defendant Highland Insurance Company pursuant to Code of Civil Procedure section 917.2. The trial court sustained defendant’s demurrer to the first amended complaint, holding that plaintiff failed to state facts sufficient to constitute a cause of action, and entered judgment of di...
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Opinion In this declaratory relief action the trial court held that a homeowner’s insurance policy issued by defendant did not cover fire loss of a bam owned by plaintiffs Sandgren and Larimer. The Sandgrens appeal. For the most part, the facts are stipulated. Mr. and Mrs. Sandgren lived at 3443 Nuestro Road, Yuba City. In 1964 they took out a *636homeowner’s policy which included fire insurance ...
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Opinion Petitioner stands charged by information with a violation of section 245 of the Penal Code 1 (assault with a deadly weapon). He seeks a writ of prohibition to prevent further proceedings against him and/or a writ of mandate to compel respondent court to dismiss the action against him. The question presented to us for determination is whether section 1387, as amended, is...
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Opinion Consolidated for hearing in this court are two appeals taken by the People from orders entered by the superior court in two separate actions. Both appeals involve a similar question, namely, the applicability of the rule established in the case of In re Bye (1974) 12 Cal.3d 96 [115 Cal.Rptr. 382, 524 P.2d 854], to a situation where a defendant, committed to the California Rehabilitation C...
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Opinion Appellant Argonaut Insurance Company appeals from an order denying its motion to set aside the forfeiture of a bail bond and to exonerate that bond. We affirm. Appellant issued and filed its bail bond, insuring the appearance of defendant Solorzano. Before the date for his appearance in the trial court, he was deported to Mexico. On his nonappearance, the bond was forfeited; Argonaut ...
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Opinion Plaintiffs, the minor children of Elizabeth Brown, deceased, brought this action by their guardian ad litem for medical malpractice (wrongful death) against defendant Dr. Louis Wu. 1 Also named in the complaint, but not parties to this appeal, were another doctor, various Does, and Los Angeles County General Hospital (University of Southern California Medical Center). The deceased wen...
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Opinion This is an original petition for a writ of review filed under Business and Professions Code sections 23090 and 23090.5. The Acting Director of the Department of Alcoholic Beverage Control (hereinafter “ABC”) seeks reversal of a decision of the ABC Appeals Board which held a departmental rule (Cal. Admin. Code, tit. 4, § 58), unconstitutional under California and United States equal prot...
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Opinion Plaintiff Grace Pepitone appeals from the trial court’s judgment reducing the amount of damages and failing to award prejudgment interest in an action brought for fraud and breach of fiduciaiy duty. The facts briefly stated are as follows: In May 1968, appellant exchanged a piece of real property for a motel owned by one Goldy. The exchange agreement was drafted and the deal ...
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Opinion After a trial by jury, defendant was found guilty of the following crimes (listed by information number): No. 15144—second degree burglary (Pen. Code, § 459) as charged in count I. No. 15147—petty theft (Pen. Code, § 488), a lesser included offense of grand theft (Pen. Code, § 487, subd. 1) as charged in count I; grand theft of a firearm (Pen. Code, § 487, subd. 3) as charged in count II;...
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Opinion Defendant, California Union Insurance Company (Cal Union), appeals from a judgment entered in favor of plaintiff BeaumontGribin-Von Dyl Management Company, a California corporation (Management), on a policy of professional malpractice insurance. The policy provides maximum coverage of $500,000, with an amount of $2,500 deductible “from the total amount resulting from each claim.” ...
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Opinion In Ferguson v. Keays (1971) 4 Cal.3d 649 [94 Cal.Rptr. 398, 484 P.2d 70], our Supreme Court held that there is an inherent judicial power to waive filing fees on appeal upon a showing of the appellant’s indigency but expressly did not decide “the question whether indigents must be given funds by the county or some other source in order to pay transcript fees, publication costs, or other si...
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Opinion Robert A. Griswold (hereafter referred to as petitioner or appellant) appeals from that portion of the judgment of the Contra Costa County Superior Court which denied appellant’s petition for a writ of mandate requesting that Mt. Diablo Unified School District (hereafter referred to as respondent or cross-appellant) be required to set aside its decision dismissing appellant from his pos...
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Opinion Plaintiff Christy P. Bronson DeSuza sought damages for personal injuries from defendants Kathleen. Andersack and Robert and Mae Selleck, arising out of a motorcycle-automobile collision. These named defendants moved for summary judgments shortly before trial, and the judgments were granted. Plaintiff Christy having died, plaintiff Beatrice E. DeSuza, as administratrix of Christy’s...
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*715 Opinion In this personal injury action, the jury, on the basis of comparative negligence, returned a verdict in favor of plaintiff in the amount of $3,250. Judgment was entered accordingly. Plaintiff’s motion for new trial was denied. Plaintiff appeals from the judgment contending that there is no evidence of any negligence on the part of plaintiff, that it was, therefore, e...
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Opinion Introduction In this case we declare that the Kings County ordinance allowing the impoundment and sale of farm animals found to be “at large” upon any street or public place or upon any private property against the wishes of the owner of the property, and Penal Code section 597f, to the extent that it commands the impoundment of any farm animal “neglected” by its owner, are constitutional...
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Opinion Defendant Elder was found guilty by a jury of 1 count of conspiracy to commit bookmaking (Pen. Code, § 182, subd. 1) and 29 counts of violation of Penal Code section 337a (hookmaking). Defendant Hatrick was found guilty of 1 count of conspiracy to commit bookmaking (Pen. Code, § 182, subd. 1) and 27 counts of violation of Penal Code section 337a (bookmaking). Both defendants were gran...
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Opinion This appeal is before us upon transfer from the Appellate Department of the Superior Court of San Mateo County upon certification by that court pursuant to rule 63 of the California Rules of Court. The appeal is by the People from an order of the municipal court suppressing the results of a blood test in an action charging defendant with driving a vehicle while under the influence of in...
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Opinion Marguerite G. Richer, executrix of the estate of Edmond R. Richer, deceased, filed the within petition for writ of mandate to compel the superior court to vacate its order of June 11, 1976, granting the motion of Donna Dee Rayburn Cook, real party in interest, to abate a petition filed pursuant to section 851.5, Probate Code, and thereafter enter an order denying said motion. This...
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Opinion The minor appeals from a judgment sustaining a petition filed pursuant to section 602, Welfare and Institutions Code, and declaring him a ward of the court. Initially the petition alleged that he committed a robbery (§ 211, Pen. Code) and in the course thereof intentionally inflicted great bodily injury. However, later the court vacated the finding sustaining the petition and, pur...
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Opinion The Director of the Department of the Youth Authority has sought a writ of prohibition to restrain the respondent superior court, hereinafter referred to as the juvenile court, from enforcing an order which continued real party in interest, then 18, now 19, under an earlier commitment to the Youth Authority and released him from custody pending a further hearing. The director also...
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Opinion A jury found defendant Westoby guilty of violating Penal Code section 12303.2, in that he did “recklessly or maliciously have in his possession a destructive device and explosive on a public street and highway, and near a private habitation, and in a public place ordinarily passed by_human beings.” The jury had found him not guilty of the lesser and included offense proscribed by ...
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*802 Opinion The facts are undisputed. Petitioner, American Federation of Teachers College Guild, Local 1521 (“Union”), sought a writ of mandate requiring respondent Los Angeles Community College District Board of Trustees (“Board”) to retain certified teachers until the age of 67 and thereafter unless, after reaching such an age, it is determined that the teacher is “physically or mentally i...
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Opinion This is an appeal by defendant-appellants, William D. Alexander, Nina B. Alexander and W&N Enterprises, Inc., a California corporation, from an order denying their motion to dissolve a writ of attachment previously obtained by plaintiff-respondent, Rudolph Johnson, Jr. We affirm. On October 3, 1972, plaintiff Rudolph Johnson, Jr., and defendant 1 William D. Alexand...
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Opinion This case presents the question whether a taxpayer waives the privilege of confidentiality attaching to his copies of income tax returns when he files a lawsuit placing the contents of those returns directly in issue. In a complaint filed in superior court naming petitioners as defendants, real party in interest Nell M. Enid (hereinafter “plaintiff”) alleges that petitioners,...
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Opinion Plaintiff filed suit against the defendant for severe and permanent personal injuries suffered in a fall from a scaffold while employed as an apprentice roofer by a subcontractor at a residential construction project on which defendant was the general contractor. The jury found for defendant and judgment was entered accordingly. Plaintiff appeals from the judgment. Facts ...
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Opinion Plaintiff in this unlawful detainer action appeals from an order granting defendant’s motion for “nonsuit.” 1 Facts Memorial Properties, Inc., a corporation, owned property in Anaheim operated as a cemetery and known as The Melrose Abbey. On or about February 15, 1974, upon specified rent payable over the term, Memorial leased a part of the cemetery property ...
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Opinion The Monterey County Grand Jury investigated, and took evidence on, charges that defendant Callaghan had sexually molested several young girls. Placed in evidence as Exhibit No. 1 at the hearing was a police lineup photograph depicting several male adult persons. A police officer testified that “number 3” of the photograph was a portrayal of Callaghan. Asked if her molester’s likeness ap...
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63 Cal.App.3d 903 (1976) 134 Cal. Rptr. 137 MARGUARITA GARCIA et al., Plaintiffs and Appellants, v. DAVID B. SWOAP, as Director, etc., Defendant and Respondent. Docket No. 47086. Court of Appeals of California, Second District, Division Five. November 17, 1976. *905 COUNSEL Daniel M. Luevano, Rosalyn M. Chapman, Philip L. Goar, Dorothy T. Lang, Warren D. Weinstein, Ronald S. Javor, John E. McDerm...
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63 Cal.App.3d 916 (1976) 134 Cal. Rptr. 145 KENNETH L. TWYFORD, Plaintiff and Appellant, v. VERNIE B. TWYFORD et al., Defendants and Respondents. Docket No. 15693. Court of Appeals of California, Third District. November 5, 1976. *919 COUNSEL Donald A. Peters for Plaintiff and Appellant. Rust & Armenis and David I. Brown for Defendant and Respondent. OPINION PARAS, J. Plaintiff Kenneth Twyfor...
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Opinion The instant appeal is taken by Richard W. Tammen (hereafter for convenience, “Richard”) from an interlocutory judgment of dissolution of his marriage to Elizabeth L. Tammen (hereafter for convenience, “Elizabeth”). The issues relate only to the division of the parties’ community property. The community property awarded Elizabeth approximated 79 percent of the whole. To equali...
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Opinion Anita Elliott, the mother of Patricia D’India, deceased, appeals from a judgment of the probate court under which she takes nothing upon her petition for an apportionment of damages collected by Patricia’s estate in settlement of an action for her (Patricia’s) wrongful death. Patricia died intestate on November 20, 1972, at the age of 26 years. Her only heirs at law were appe...
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*956Opinion Lonnie DeCarlo Sanford and Nicolas Sosa (hereafter appellants) appeal from judgments convicting them of four counts of kidnaping for the purpose of robbery (Pen. Code, § 209)1 and one count of robbery in the first degree (§ 211). Appellants were also found to have been armed and to have used a firearm during the commission of the offenses. (§§ 12022, 12022.5.) Their motions for a new t...
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Opinion Petitioner filed a petition for habeas corpus in the state Supreme Court. That court issued an order returnable before this court, *965 directing the People to show cause “why petitioner’s now expired term for violation of Penal Code section 459 . . . should not be redetermined pursuant to In re Rodriguez, 14 Cal.3d 639 [122 Cal.Rptr. 552, 537 P.2d 384], and the commencement date of...
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Opinion William E. Graves filed a petition in the superior court for a writ of mandamus compelling respondent commission to set aside its decision dismissing him from his employment as a certificated *972 employee of the Lawndale School District. The petition was denied. He appeals from the judgment. Appellant contends that (1) the school district violated the Stull Act (Ed. Code, §§ 13485-...
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Opinion This is a proceeding in mandamus to compel respondent court to vacate its order granting real parties in interest’s motion to suppress evidence. (Pen. Code, § 1538.5.) The evidence adduced at the hearing on the motion to suppress was as follows: In April 1975, officers of the Los Angeles Police Department were told by an unidentified informant that real parties in interest Martinez an...
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Opinion The defendant was convicted of violation of section 21703 of the Vehicle Code on June 12, 1974. The defendant filed his notice of appeal on June 19, 1974, together with a proposed statement. The respondent filed amendments to the proposed statement on June 26, 1974, and July 19, 1974. Nothing else occurred in this case until January 17, 1975, when a hearing was set for January 28, 1975, to...
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Opinion J.—The People appeal from an order granting a defense motion to dismiss an action on the ground that it had not been “brought to trial” within 45 days after defendant’s arraignment, as is required by Penal Code section 1382. The 45th day was March 1, 1976. At 4:30 p.m. on that day a panel of prospective jurors wás swóm to answer questions concerning their qualifications to act as jurors. T...
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Opinion Monogram Industries, Inc., a company engaged in, among other things, the production and marketing of portable or nonconventional toilet systems, commenced this action against Sar Industries, Inc., Sarmax Corporation, Norris J. Bishton, Jr., and John S. Blick III, which entities and persons are engaged in a similar business, seeking damages for misappropriation of trade secrets and...
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Opinion Plaintiff appeals from a judgment, entered after a bifurcated trial, dismissing her complaint on the ground that it was barred by the statute of limitations. We reverse. On June 1, 1969, the parties were involved in an automobile accident in the State of Sinaloa, Mexico. The present action was filed on June 3, 1970. After the accident, both parties were hospitalized in Mexico, returni...
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Opinion The People of the State of California petition this court for writ of mandate and/or prohibition directed to respondent municipal and superior courts to require that they proceed as required by law upon a nolo contendere plea as originally entered by William Barke, real party in interest. *713 A felony complaint was filed on January 27, 1976, in respondent municipal court charging W...
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*733 Opinion Maria appeals from an order of the juvenile court finding her to be a person coming within the provisions of section 602 of the Welfare and Institutions Code and directing that she be taken from her mother’s home and suitably placed. 1 For the reasons hereinafter set forth, we reverse the order. The minor was, at the times herein involved, a girl of the age of 16. She had two...
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Opinion Appellant Robert Sechrist seeks review of a judgment discharging his petition for a writ of prohibition which was filed in an effort to halt the prosecution of a misdemeanor complaint charging him with several violations of the Los Angeles County zoning ordinance. *742 In the criminal action now pending before the Municipal Court of the San Antonio Judicial District,...
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Opinion This is an appeal from a judgment entered upon a written stipulation of facts. Suit was brought by the respondents to recover sums paid under protest to the California Franchise Tax Board after their pursuit of administrative remedies was exhausted. Upon the ruling that respondents were entitled to a tax credit under Revenue and Taxation Code section 18001, appellant brought this ...
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Opinion This appeal is a consolidation of three cases which raise the same issue: whether respondents (three former firemen-hereinafter “Firemen”) with the City of Santa Ana (hereinafter “City”) (1) may be compensated for their accumulated sick leave where they are awarded a disability retirement, and (2) may use their accumulated sick leave to postpone the date of their disability retirement. ...
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Opinion We granted a rehearing following our initial opinion on this appeal, in order to give further consideration to the Attorney General’s insistence that the opinion constituted “a triumph of illogic over justice.” The issue raised in the petition concerns the role of a jury in the administration of criminal justice. Defendant Gottman was charged with (1) “rape by threat of great bodily h...
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Opinion Introduction This appeal presents the question of whether real and personal property valued at $705,000 and held of record title in joint tenancy by the decedent and his wife, respondent Grace Wilson, should be included in the decedent’s probate estate for administration and distribution under his will. Appellant, a niece and residuaiy beneficiary under decedent’s will, contends by reason...
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Opinion Petitioner, Albert Wayne Chapman, by way of habeas corpus filed with the Supreme Court and transferred to this court, *809 seeks discharge from his confinement in state prison on the ground that he was once in jeopardy on the same charge prior to his conviction in a second trial ending July 30, 1974. In the latter trial he was found guilty of the sale of a controlled substance in viol...
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*820Opinion The California State Department of Health petitioned the superior court to have one Michele G, a minor, declared free from the custody and control of her parents following her father’s conviction of the murder, second degree, of her half sister and her mother’s conviction of being an accessory (Pen. Code, § 32) to the murder. Apparently by agreement, the minor was adjudged free from th...
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Opinion Marvin L. Porten appeals from a judgment of dismissal rendered after a demurrer to his complaint was sustained without leave to amend. Appellant’s complaint prayed damages against respondent University of San Francisco arising out of the university’s claimed misconduct in disclosing to the State Scholarship and Loan Commission the grades appellant had earned at Columbia University...
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Opinion Plaintiff appeals from a summary judgment entered in favor of defendant Dr. Howard Mark. The motion for summary judgment was based on the action being barred by the statute of limitations (Code Civ. Proc., § 340.5). 1 *837 Plaintiff allegedly was injured on or about October 23, 1971, while a patient at defendant Memorial Hospital of Southern California (Hospi...
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Opinion Plaintiffs appeal from an order dismissing their second amended complaint (hereinafter complaint) after an order sustaining a demurrer without leave to amend that complaint. For the reasons set forth, we affirm the order. The complaint alleges, so far as is here pertinent, as follows: “XIII “On or about August 31, 1973, plaintiffs and defendants entered into a writt...
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Opinion Petitioner and appellant Connie M. Marks appeals from a judgment of the Monterey County Superior Court. Issues Presented 1. The probate court had jurisdiction to resolve the claims of appellant. *856 2. The order is appealable. 3. There is substantial evidence to uphold the court’s determination that the assignment was not fraudulent. 4. The court...
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*870 Opinion Lucille C. Karpe’s appeal is from a judgment denying her application for a writ of mandate. She had sought by that proceeding to compel respondents to allow her service credits as a public school music teacher for the school years 1926-1927, 1927-1928, 1928-1929, and 1931-1932, 1932-1933, 1933-1934 and 1934-1935. The question of the appeal is whether appellant held valid teachi...
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*875 Opinion In this proceeding in mandate we first denied, without hearing or opinion, petitioner Michael Alexander Bortin’s petition as unmeritorious. Thereafter the Supreme Court granted a hearing following which the matter was retransferred to this court “with directions to issue an alternative writ of mandamus to be heard ... when the proceeding is ordered on calendar. (See Murgia v. ...
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Opinion Plaintiff is a quadriplegic confined to a wheelchair. He commenced this action against the defendant, an owner and operator of a chain of motion picture theatres, alleging that the latter unlawfully discriminated against him because of his physical handicap by denying him admission to its Newport Cinema Theatre. The complaint alleged that defendant’s conduct violated various ...
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*895 Opinion The Division of Labor Law Enforcement of the California Department of Industrial Relations (hereafter the Division) instituted an action against Gerald Sampson seeking reinstatement and back wages for Michael J. Lindell a former employee of Sampson. The trial court granted a summary judgment in favor of Sampson. The Division appeals. The Division’s complaint was grounded on Lab...
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Opinion Plaintiff Barry J. Richards filed a breach of contract action against defendants Merrill Lynch, Pierce, Fenner & Smith, Inc., and several employees (hereinafter, Merrill Lynch) involving an alleged breach of a margin agreement. Merrill Lynch moved to stay the proceedings and petitioned the court for an order compelling arbitration. The motion and petition were denied on the ground...
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Opinion The parents of Ramona S., now 14 years of age, were divorced. Thereafter in 1970 Ramona’s father was awarded her custody by an order of the superior court. Nevertheless, Ramona resided with her mother in Sonoma County until October 10, 1975. On that date, with her mother’s approval, she began living with her father and stepmother who were and are residents of Marin County. Twenty days lat...
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Opinion In an information filed September 26, 1975, defendants Felipe Alejo Fuentes and Mario Hernandez were charged in count I with *955 robbery in violation of Penal Code section 211. Fuentes was charged also in count II with possession of a dirk or dagger in violation of Penal Code section 12020. Both defendants waived trial by jury and were tried by the court and each was found guilty of ...
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*986 Opinion Northern Natural Gas Company of Omaha, Nebraska, a Delaware corporation (Natural Gas) and Northern Propane Gas Company of Minneapolis, Minnesota, a Delaware corporation (Propane Gas) were sued as defendants in respondent court in an action filed by Ned S. Van Duyne, (Van Duyne), real party in interest. Natural Gas and Propane Gas filed motions to quash service of sum...
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Opinion On July 28, 1975, the Probation Officer of Los Angeles County filed a petition that alleged appellant came within the provisions of Welfare and Institutions Code section 602 in that he had violated Penal Code sections 187 (murder, count one), 459 (burglary, count two), and 487, subdivision 3 (auto theft, count three). Appellant denied the allegations and was ordered detained pending psychi...
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Opinion Appellant was convicted of violating Penal Code section 12031, subdivision (a). He argues that, as a matter of law, subdivision (f) of the statute exempted him from liability. We disagree, and affirm the conviction. Subdivision (a) provides that: “(a) Except as provided in subdivision (b), every person who carries a loaded firearm on his person or in a vehicle while in any public place or ...
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Opinion This is an appeal by the People from the judge’s order dismissing an action under Penal Code section 1385 after it was revealed that the results of defendant’s urinalysis could not be located for trial. *Supp. 12Pertinent Facts Defendant was arrested on December 12, 1975, for violation of Health and Safety Code section 11550 (under the influence of a controlled substance) and on that date ...
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Opinion Appellants John and Joe Hernandez were charged with committing a misdemeanor violation of Penal Code section 45501 in that they wilfully attempted “to rescue or aid another person in rescuing or attempting to rescue a prisoner . . . from any officer or person havin [¿7c] him in lawful custody.” The object of the rescue was Anthony Hernandez, a ward in the lawful custody of the Youth Autho...
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Opinion The defendant has appealed from the order of the trial court denying her motion to suppress “all observations, objects, alleged admissions and any other evidence” pursuant to section 1538.5 of the Penal Code. Pertinent Facts No evidence was presented by the People. The defense called Amy Scanlon and the defendant in support of the motion. Amy Scanlon testified that she was one of eight per...
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*Supp. 34Opinion Welfare and Institutions Code section 3050 provides that when in a municipal or justice court, a defendant is convicted or a previously granted probation is revoked, and it appears to the judge that the defendant is or by reason of repeated use may be in imminent danger of becoming addicted to narcotics, the judge shall adjourn the proceedings and certify the defendant to the sup...
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Opinion Defendant appeals from his conviction of theft, in violation of Penal Code section 484, subdivision (a). Defendant was observed by the manager of a Von’s market to switch price tags from one kind of glove to another kind of glove and also to switch price tags placed on chickens. The manager of the store stood five or six feet behind defendant as the latter went through the check-out counte...
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Opinion Defendant Pacific Gas and Electric Company (hereinafter appellant or P G and E) appeals from the trial court’s judgment awarding respondent damages in the sum of $46,508 plus interest for breach of contract. The relevant facts may be summarized as follows: By a written agreement executed September 28, 1966, appellant undertook to provide natural gas for respondent corporation...
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Opinion Plaintiff Belmont County Water District (District) appeals from the trial court’s judgment denying relief in an action seeking damages for inverse condemnation. *16 The summarized facts reveal that on or about June 21, 1966, the City and County of San Francisco (City) granted appellant a revocable permit for the purpose of constructing on certain lands belonging to t...
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65 Cal.App.3d 24 (1976) 135 Cal. Rptr. 134 LINK-BELT COMPANY, Plaintiff and Appellant, v. STAR IRON AND STEEL COMPANY, Defendant and Respondent. Docket No. 47517. Court of Appeals of California, Second District, Division Four. December 20, 1976. *25 COUNSEL Virgil R. Wells for Plaintiff and Appellant. Gibson, Dunn & Crutcher, Wesley G. Howell, Jr., and Dennis A. Gladwell for Defendant and Res...
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Opinion This appeal concerns an action to recover taxes paid under protest. Plaintiff taxpayers are three corporate collec *49 tion agencies, Hospital Medical Collections, Inc., Petroleum Collections, Inc., and Mutual Collection Bureau. Named as defendants were the City of Los Angeles and Rex E. Layton, City Clerk. The case was tried below pursuant to a written stipulation of facts. Judgment ...
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Opinion This petition for writ of habeas corpus by a person confined in Patton State Hospital raises issues concerning the constitutional rights of persons involuntarily confined after being found mentally incompetent to stand trial on criminal charges. The petition was originally filed in the Supreme Court and then transferred to this court for hearing and decision. *60Petitioner was arrested in...
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Opinion In a first amended complaint for property damage plaintiff St. Paul Fire and Marine Insurance Company, a corporation, as insurer of C. H. Leavell & Company, a corporation, seeks reimbursement for sums paid by it for water damage to property located in or near the basement of the United States Post Office, Cafeteria and Federal Office Building at Wilshire and Sepulveda Bouleva...
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Opinion Appellants Anderson and Clouse brought this action for the wrongful death of their son when the automobile in *86 which he was riding failed to negotiate the curve of a road designed, constructed, and maintained by respondent City of Thousand Oaks. After responsive pleadings were filed, the city moved for summary judgment on the basis of several grounds of public enti...
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Opinion Defendant Steven Charles Frohner was convicted by a jury of selling or furnishing LSD (Health & Saf. Code, § 11379, subd. (a); count 3) and acquitted of another count of selling or furnishing LSD (count 1) and one count of selling or furnishing cocaine (count 2). 1 The skeletal facts in this case are not disputed. They involve David Crawley, a Los Angeles County deput...
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Opinion The objector and appellant, Helen Louise Watson, appeals from an order of the superior court, sitting in probate, approving the compromise of the claim of claimant and respondent, Erik Erlandsson, against the estate of Larry N. Black, deceased. Erlandsson presented a general, nonpriority creditor’s claim for $38,250, which was approved and allowed by the personal representative and approve...
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Opinion Appellants Palo Alto-Menlo Park Yellow Cab Co., Inc. and Cabs Unlimited, Inc. (doing business as Yellow Cab of Mt. *127 View, Los Altos and Cupertino) and other owners and operators of taxicab companies operating in Santa Clara County, on November 18, 1974, filed a complaint in the superior court for injunctive and declaratory relief. The complaint alleged violat...
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Opinion On this appeal by the husband 1 from a portion of an interlocutory decree of dissolution, 2 the only question is whether the trial *138 court properly concluded that the wife’s interest in her federal social security old age and survivor’s benefits was her separate property. The question is one of first impression. We have concluded that an affir...
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Opinion Robert E. Harris (hereinafter former husband) moved to terminate spousal support payments. The order of the trial court denied the motion and awarded Ricky Harris (hereinafter former wife) attorney fees and costs for resisting the motion. Former husband appeals. Facts By an interlocutory decree of dissolution of marriage dated December 23, 1971, former husband was or...
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*157 Opinion This is an appeal from a judgment of the Superior Court of Riverside County holding that the defendant, Riverside Unified School District, legally exempted the plaintiff, Cherie Abella, from school attendance under Education Code section 12152. Statement of Facts Plaintiff, Cherie Abella, was an eighth grade pupil at University Heights Middle School in ...
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65 Cal.App.3d 173 (1976) 134 Cal. Rptr. 895 ROY OLIVER DIMOND, Plaintiff and Appellant, v. CATERPILLAR TRACTOR COMPANY et al., Defendants and Respondents. Docket No. 15855. Court of Appeals of California, Fourth District, Division Two. December 22, 1976. *176 COUNSEL Garber, Sokoloff & Van Dyke and John M. Van Dyke for Plaintiff and Appellant. W. Mike McCray, Daniel L. Stack, Garrett & Di...
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Opinion Gary Arval Coble (“Coble”) was convicted by a jury of armed robbery (Pen. Code, §§ 211 and 12022) * 1 after a trial in which the court received in evidence a four-minute tape recording of a “statement” 2 by David Sifferman, a possible coconspirator, accomplice or aider and abetter. Although physically present at trial, Sifferman invoked his Fifth Amendment Constitutional right aga...
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Opinion This case- involves determining the rights of the parties when a man with two wives and a child dies intestate, having designated a neighbor lady as the beneficiary of his employment-related life insurance policy and union pension fund death benefit. The record on appeal in this case is sketchy and in some respects inadequate. None of the pleadings is contained in the clerk’s transcri...
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Opinion In an information filed on May 10, 1967, by the District Attorney of Los Angeles County, defendant was charged with a violation *223 of Penal Code section 487, subdivision 1, grand theft. A prior felony conviction was also alleged. Defendant waived trial by jury. Trial was by the court and the matter was submitted on the preliminary hearing transcript. Defendant was found guilty, and ...
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*229 Opinion After a court trial defendants Donnell and Handcox were each convicted of first degree robbery. 1 Both defendants were sentenced to prison and appeal from the judgment. Two legal issues are raised by defendants: (1) Whether section 739 of the Penal Code, as interpreted, permitted the prosecutor to file an information charging defendants with robbery (...
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Opinion Defendant appeals from the judgment entered after a jury convicted him of oral sex perversion (Pen. Code, § 288a) and forcible rape (Pen. Code, § 261, subd. 3). On the evening of May 29, 1975, Cheryl S. was hitchhiking and accepted defendant’s offer of a ride from Grass Valley to her home in Foresthill. Shortly thereafter defendant stopped the car at the side of the road, explaining to Mis...
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*247 Opinion Juanita A. Morrison has appealed from a judgment of the superior court denying her petition for writ of mandate directed to the California Unemployment Insurance Appeals Board (Board). Board had denied Morrison’s application for unemployment insurance benefits on the ground she had voluntarily quit her employment without good cause. Morrison took the appropriate administrative ...
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Opinion Homer E. Detrich, Director of the San Diego County Department of Public Welfare (the Director), has appealed from a judgment dismissing his petition to declare four children free from the custody and control of their natural and legal father. The children are James M., born October 16, 1963; Daniel M., born April 23, 1965; Deanna M., born April 30, 1968; and Beverly M., born July 21, ...
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*283 Opinion Peter P. Gamer, plaintiff, has appealed from a judgment entered Februaiy 7, 1975, in his class action against duPont Glore Porgan Incorporated (Glore Porgan), defendant, to recover allegedly usurious interest paid to Glore Porgan. The judgment followed the granting of Glore Forgan’s motion for summary judgment. The action was commenced on August 30, 1973. P...
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Opinion In this proceeding in habeas corpus, petitioner Robert James Smith, an attorney, seeks to annul orders of the Ventura County Superior Court dated August 10 and August 19, 1976, adjudging him in contempt of court on four counts, and on one count sentencing him to jail for one and one-half hours and imposing a $500 fine, and imposing a fine of $500 on each of the three other counts. 1 ...
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*301 Opinion Barbara Joy Lovitz (wife) appeals from an order made March 20, 1975, terminating spousal support on Harold Lovitz (husband’s) order to show cause in re modification. Husband and wife were married on July 10, 1949, and separated in September 1964. There are three children of this marriage. After a trial, the court ordered husband to pay to wife for her support the sum of $600 pe...
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Opinion The matter at bench involves cross-appeals from a default judgment. Defendants contend: (1) the trial court erred in denying their motion to be relieved from default on the ground of excusable neglect; (2) the court failed to obtain personal jurisdiction because of defective service of summons; and (3) the complaint fails to allege facts sufficient to support exemplaiy damages. In her c...
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*322 Opinion This is an appeal from a summary judgment granted defendants in an action asserting defamation, inducement of breach of a union’s duty of fair representation, and breach of an oral contract of employment. It raises the issue of the collateral estoppel consequences of findings in a labor grievance proceeding which, if conclusive in the case at bench, bar plaintiff’s recovery. Conc...
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Opinion In two actions, consolidated for trial, 10 airline companies sought refund of property taxes paid on their respective leasehold interests at Los Angeles International Airport (LAX). The principal point of contention, and the only matter considered by the trial court, *327 is whether the Los Angeles County Assessor could properly assess the possessory interests of the...
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*336 Opinion This proceeding arises on writ of review directed to a proceeding of the Alcoholic Beverage Control Board (Board) which: (1) affirmed a decision of the Department of Alcoholic Beverage Control (Department) finding Markstein Distributing Co. to be in violation of Business and Professions Code section 24200, subdivision (a) 1 and rule 106, subdivision (b), o...
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Opinion This appeal from a judgment of the Municipal Court of Los Angeles Judicial District is before us by certification from the Appellate Department of the Superior Court of Los Angeles County pursuant to rules 63(a) and (c), California Rules of Court. *345 Appellant, Edith Merle Sutton, was convicted by jury verdicts of violating Penal Code section 273a (endangering a child) and Penal C...
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Opinion Defendant Thomas Dean Sullivan was charged with ten counts of grand theft involving five transactions. A jury convicted *369defendant of five counts and acquitted him on four counts; one count was dismissed by the trial court. Defendant was sentenced to prison; by corrected judgment, he was sentenced to concurrent terms on two counts with a third count to run consecutive to the concurrent ...
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Opinion The Adult Authority and Raymond K. Procunier, its Chairman, appeal from an order which directs the issuance of a writ of *381 habeas corpus and has the effect of ordering the immediate release of respondent William Archie Fain on parole from state prison. The order was made upon the trial court’s determination that “final” administrative action taken by the Adult Authority, granting F...
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Opinion In 1929 the owners of vacant land on Hollywood Boulevard leased the property for a term of 99 years. Plaintiffs are successors in interest to the lessors; and defendant is the successor in interest to the lessee. Plaintiffs seek a declaration that a provision in the lease that the rent be paid in gold coin of the United States of America is valid. The trial court concluded that th...
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Opinion Bar Master, Inc. sued State Board of Equalization (Board) for a refund of use taxes paid by it pursuant to deficiency assessment by the Board following the Board’s denial of claim for refund. Defendant appeals from judgment in favor of plaintiff. The cause was tried by the court without a jury upon a stipulation of facts and two depositions. Bar Master purchased various ...
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*419 Opinion The Director of the Department of Motor Vehicles appeals from judgment granting peremptory writ of mandate commanding him to set aside an order suspending respondent’s driving privilege under section 16070, Vehicle Code 1 for failure to establish proof of financial responsibility. The facts are not in dispute. In January 1975 respondent was involved i...
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65 Cal.App.3d 426 (1976) 135 Cal. Rptr. 276 THE PEOPLE, Plaintiff and Respondent, v. ROBERT ALLEN, Defendant and Appellant. Docket No. 28111. Court of Appeals of California, Second District, Division Four. December 28, 1976. *429 COUNSEL Thomas M. Hagler, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant At...
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Opinion Plaintiff and appellant Davey Tree Surgery Company (hereinafter Company) appeals from a judgment of the San Francisco Superior Court denying its petition to vacate the arbitrator’s award and granting the cross-petition of defendant and respondent International Brotherhood of Electrical Workers, Local 1245 (hereinafter Union) confirming the arbitration award. *443 Iss...
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Opinion Defendants, County of Los Angeles and its sheriff, Peter J. Pitchess, appeal from minute orders granting preliminary injunctions in favor of plaintiffs who operate nine commercial establishments providing nude or partially nude entertainment or food or beverage service of the type covered by Penal Code sections 318.5 and 318.6. 1 The appeals lie. (Code Civ. Proc., § 904...
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Opinion Plaintiff, Kitty Denny Steele (formerly Kitty Denny Dean Langmuir) (hereafter for convenience Wife), appeals from a judgment in favor of defendant, Frances J. Langmuir, personal representative of Kenneth M. Langmuir, deceased (hereafter for convenience Husband). This is an action on a rejected contingent claim in probate in the amount of $157,800, payable $800 per month. The claim res...
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Opinion Plaintiff Renba Lil, a corporation, brought this action for an injunction against the Chief of Police and the City Prosecutor of the City of Long Beach to restrain enforcement of Long Beach Municipal Code sections 4195 to 4195.4 relating to nudity of waiters, waitresses, and entertainers in establishments which serve food or beverages. The trial court granted a temporary restraini...
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Opinion Plaintiffs appeal from a judgment of dismissal following the sustaining, without leave to amend, of defendants’ demurrer to the first amended complaint. We reverse. On January 22, 1974, plaintiff Herman Slapin was assaulted and severely injured by unknown persons while he was lawfully on parking lot number four near the American Airlines terminal at Los Angeles International Airport, ...
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Opinion The appeal at bench tests the right of a private state-licensed adoption agency to impose religious restrictions upon prospective adoptive parents over and above the religious matching requirements of California Administrative Code, title 22, section 30643. It raises incidental insubstantial issues of the sufficiency of pleadings, standing, and a claim of prejudice of the trial ju...
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Opinion Introduction The People seek a statutory writ of mandate pursuant to Penal Code section 1538.5, subdivision (o), to compel the superior court to deny real parties in interest's motions to suppress evidence which was seized in a garage adjacent to defendant Bowden’s home without a search or arrest warrant. The superior court, following a full de novo hearing, had granted defendants’ mo...
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Opinion Appellant, Mary Escamilla, was charged with and convicted of sale of heroin on March 11, 1975 (Health & Saf. Code, § 11352, subd. (a), count I), sale of heroin on March 13, 1975 (Health & Saf. Code, § 11352, subd. (a), count II), and possession of heroin (Health & Saf. Code, § 11350, subd. (a), count III). Conviction of the two sale-of-heroin counts (counts I and II) is suppo...
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Opinion Defendant and appellant John Lipinski appeals from judgment, after jury trial, of the San Francisco Superior Court, convicting him of violation of section 182 of the Penal Code and section 11912 of the Health and Safety Code (conspiracy to sell LSD, a restricted dangerous drug). Issues Presented 1) The refiling of the conspiracy charge after its dismissal at the preliminary examinat...
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*581 Opinion Statement of the Case Appellants were charged by information in count I with the making of a false affidavit concerning a recall petition, in violation of California Elections Code section 292181 1 in count II with the circulation of a recall petition knowing it to contain false, forged or fictitious names, in violation of California Elections Code section 29217; 2 and in c...
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Opinion The City of Berkeley appeals from a summary judgment, obtained by respondent Oakland Raiders, enjoining appellant from collecting a tax imposed by the city’s Ordinance No. 4703-N.S. We reverse the judgment. On June 30, 1972, respondent and the Regents of the University of California entered into a stadium rental agreement by which respondent leased the use of California Memorial Stadi...
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Opinion Plaintiff Delagrange appeals after nonjury trial from an adverse judgment on his first amended complaint (hereinafter, “complaint”). Plaintiff attacks, however, only that portion of the judgment which ordered dismissal of the second and third causes of action of the complaint, 1 contending that the allegations of the latter counts were sufficient to resist the demurrer of defendant Sa...
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Opinion In this extraordinary writ proceeding, the People seek mandate to compel respondent court to set aside its order striking out parts of informations charging defendants Orecchia and Rynd with violations of Health and Safety Code, 1 section 11361 (sale of marijuana to a minor). The People contend that since the undisputed evidence at the preliminary hearings established that the sales w...
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*850 Opinion Petitioner California School Employees Association (CSEA) and Dieter Nicklesberg, a classified employee of respondent Los Angeles City Unified School District of Los Angeles County (District) sought a writ of mandate compelling District: 1. To rescind and abolish rules 1990, 3008 and 4008, enacted by District, which permit certain employees designated as A and B...
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Opinion Defendant Willie Scott Thomas was charged in an information with one count of assault with intent to commit rape upon Carolyn J., a person under the age of 18 years, (Pen. Code, § 220) and one count of inflicting cruel and inhuman corporal punishment on a child. (Pen. Code, § 273d.) In a nonjury trial defendant was *856 convicted of violating Penal Code section 273d and acquitted of t...
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Opinion We decided in People v. Halopoff (1976) 60 Cal.App.3d Supp. 1 [131 Cal.Rptr. 531], that in the trial of speeding cases where radar is involved “it is incumbent upon the People, without request from the defendant, to disclose to the court and to the defendant that radar is involved and further, where such is the case, to demonstrate the existence of the engineering and traffic survey requir...
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Opinion In this case there are cross-appeals. Plaintiff Zina Zhadan has appealed from the order of the trial court granting a new trial upon the ground of excessive damages; defendant Downtown L.A. Motors has appealed from the judgment entered upon the jury verdict in plaintiff’s favor. The “Complaint for Damages (Conversion)” sought compensatory and punitive damages on account of de...
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Opinion Defendant appeals from the judgment entered following a juiy trial that resulted in his conviction of involuntary manslaughter (Pen. Code, § 192, subd. 2). It was found that he had used a firearm during the commission of the offense (Pen. Code, § 12022.5). He contends: “I. The trial court’s extemporaneous juiy instruction that the defendant has the burden of proof to show justifiable ho...
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Opinion The People have appealed from the orders of the trial court dismissing the above-captioned matters. Factual Background The First Arrest: The defendant was arrested on February 24, 1975, on a charge of possession of heroin based on objective symptoms of being under the *Supp. 5influence of an opiate. No heroin was observed by the police. The defendant produced a urine sample for the police....
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Opinion By his petition of August 30, 1976, James Edward Green seeks to stop his prosecution under the general criminal law and to reinstate juvenile court proceedings earlier begun. His petition prays for an order restraining the municipal court from proceeding in the criminal case and directing the superior court, juvenile department, to find him to be a fit subject for consideration un...
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Opinion The facts in the matter before us are not in dispute. Therefore, the question of whether respondent State Board of Control should be estopped from denying appellants’ claim for indemnification *504 under then sections 13960-13966 of the Government Code 1 on the basis that said claims were not filed in compliance with the one-year filing requirement is one of law. (Crumpler v. Boa...
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71 Cal. App. 3d 537 (1976) 139 Cal. Rptr. 728 In re the Marriage of BETTY J. and CHARLES V. NORTON. BETTY J. NORTON, Appellant, v. CHARLES V. NORTON, Respondent. Docket No. 2456. Court of Appeals of California, Fifth District. September 24, 1976. *539 COUNSEL Doty, Quinlan, Kershaw & Fanucchi and Edward L. Fanucchi for Appellant. Stark, Stewart, Simon & Sparrowe, Belzer & Jackl and V....
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Opinion This is a proceeding for dissolution of marriage. Pursuant to stipulation of the parties, the matter was bifurcated. Accordingly, after *559 entry of an interlocutory judgment of dissolution and entry of final judgment of dissolution, the trial court reserved jurisdiction over all issues other than the marital status of the parties. Trial of the reserved issues t...
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89 Cal. App. 3d 102 (1976) 152 Cal. Rptr. 147 SAM STRAUGHTER, Plaintiff and Respondent, v. THE STATE OF CALIFORNIA, Defendant and Appellant. Docket No. 36754. Court of Appeals of California, First District, Division Two. March 3, 1976. *103 COUNSEL Harry S. Fenton, John P. Horgan, Robert J. DeFea, Harry C. Miller and Donald M. Velasco for Defendant and Appellant. Newman, Marsh & Furtado and M...
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