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All Reporters → cal-app-lexis → Volume 1978

Opinions in cal-app-lexis Volume 1978

Opinion The principal issues of this appeal concern administrative procedure, and criteria for judicial review, in relation to determinations of “local agency formation commissions” organized and functioning under authority of the Knox-Nisbet Act (hereinafter sometimes the Act), which is codified as Government Code sections 54773-54799.5. The Act provides that there shall be a local ...
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*401 Opinion Plaintiff, Donald F. Eldridge, the purchaser of some 750 acres of land, and Marian T. Eldridge, his wife, have appealed from an adverse judgment in an action in which they sought a decree compelling the defendants, Alyce Lee Bums (the seller of the property and payee of a note secured by a deed of trust, for the balance of the purchase price), Emmett Bums (her husban...
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Opinion Death penalty case transferred from the Supreme Court 1 for modification of the sentence to life imprisonment in accordance with Rockwell v. Superior Court (1976) 18 Cal.3d 420 [134 Cal.Rptr. 650, 556 P.2d 1101]. The grand jury returned an indictment charging first degree murder of a police officer using a firearm; assault with a deadly weapon; kidnap; a second assault with a dead...
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*463 Opinion The pivotal question presented in this proceeding is whether the 10-day period mentioned in section 859b of the Penal Code 1 for holding a preliminary examination for a defendant in custody may be extended by the magistrate for good cause without the defendant’s consent. At all times pertinent to this proceeding section 859b read as follows: “At the time the defendant appears b...
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Opinion After a jury trial in the Superior Court of Fresno County, appellant Larry Apodaca was convicted of the murder of a human fetus (Pen. Code, § 187); 1 the jury determined that the murder was of the second degree (§ 189). He also was convicted by the jury of rape by threats of great and immediate bodily harm (§ 261, subd. 3), and of assault by means of force likely to produce great bodi...
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*497 Opinion In 5 Criminal No. 2854 petitioner herein purported to appeal from an order of the Superior Court of Kings County denying petitioner’s application for a writ of habeas corpus, a nonappealable order. (In re Hochberg (1970) 2 Cal.3d 870, 876 [87 Cal.Rptr. 681, 471 P.2d 1].) Thereafter, we ordered the appeal dismissed, but, because the transcript of the eviden...
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Opinion Appellant Peerless Stages filed a. complaint for injunctive relief against respondent Santa Clara County Transit District and its director. Pursuant to stipulation, a first amended complaint was filed adding causes of action for damages and fraud. After trial by the court without a jury, judgment was entered for respondents and this appeal followed. Appellant is a bus company operating in ...
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Opinion Hill Sayble and Sayble and Raphael, a professional corporation, appeal from a judgment in favor of Frances Feinman construing the terms of payment in a contingent fee retainer agreement between appellant attorneys and respondent client. Facts: Respondent Frances Feinman retained appellant attorneys to represent her claims arising out of the wrongful death of her husband....
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Opinion Plaintiffs, the surviving wife and minor children of William Correll, a workman killed by a large, earthmoving machine, designed, manufactured, and leased by defendant Clark Equipment Company (Clark), appeal from judgment for defendant Clark after a jury trial in this wrongful death action. Clark maintains a protective cross-appeal from the dismissal (nonsuit) of its cross-complai...
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Opinion This case was certified for transfer to this court under rule 63 of the California Rules of Court, after the Appellate Department of San Joaquin County Superior Court ruled that the municipal court should have granted defendant’s motion to suppress evidence. Defendant is charged with use of heroin, a misdemeanor (Health & Saf. Code, § 11550). *562I The following “Settled Statement of Fact...
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*583 Opinion Plaintiff, the president of a local improvement association, has appealed from a stipulated judgment which awarded him $100 on his complaint, in which he sought injunctive relief, compensatory and punitive damages from defendant and respondent developer, and others, for willful noncompliance with the Federal Fair Credit Reporting Act (15 U.S.C. §§ 1681-168 It) and fo...
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*608 Opinion —Plaintiffs have filed an action for the wrongful death of their wife and mother, allegedly due to the negligence of defendant hospital. The hospital sought arbitration of that claim, relying on two instruments, one executed by the decedent and one executed by plaintiff husband as her agent, both of which contained provisions calling for such arbitration. The trial c...
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Opinion —By information defendant was charged with murder in violation of Penal Code section 187. Defendant entered a plea of not guilty and not guilty by reason of insanity. Pursuant to Penal Code section 1027 and Evidence Code section 730, the trial court appointed two psychiatrists to examine defendant. Defendant, who had retained new counsel, withdrew his plea of not guilty by reason of i...
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*638Opinion —This appeal presents but one issue for decision: whether the testatrix’ will contains a sufficiently clear expression of her intent to render inapplicable the California antilapse statute. The decedent, Josephine Salisbury, died on November 22, 1973, leaving a formal will which contained only two dispositive provisions. In clause 4, the testatrix devised certain real property to her b...
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Opinion —Both wife and husband appeal from financial provisions of their marital dissolution decree. The parties married, in 1946 and separated 27 years later, in 1973. When the judgment was entered in April 1976, husband was 50 years old and wife was 49. Their two children had reached adulthood. The court ordered husband to pay wife spousal support of $500 per month for five years beginning ...
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Opinion —Otis Duckett, Jr., was charged with several counts of assault with a deadly weapon. (Pen. Code, § 245.) Over a period of about 48 hours, responding to psychotic delusions, he appears to have shot three young college students. He was found not guilty by reason of insanity according to the procedures of Penal Code section 1026, and he was thereafter committed to a state hospital. After m...
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Opinion —Appellant and his brother sadistically murdered their 75- and 79-year-old grandparents. The appeal is from a judgment convicting appellant of two counts of murder and two counts of grand theft; one *716count of murder and the grand theft convictions were ordered merged with the remaining count of murder. The Attorney General’s summary of the facts suffices as a background: On Monday eveni...
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Opinion —The People have appealed from an order rendered pursuant to Penal Code section 995 by which the superior court set aside an information charging respondent William Henry Upchurch with destruction of prison property (Pen. Code, § 4600) and conspiracy to destroy prison property (Pen. Code, § 182). We affirm the order. At the preliminary hearing the prosecution presented evidence that r...
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Opinion These two petitions raise important questions as to the procedure by which a defendant may obtain a pretrial appellate *733review of a trial court’s ruling on a motion under subdivision (i) of Penal Code section 1538.5.1 A defendant in a felony case, seeking to avoid the use of evidence obtained by an unreasonable search and seizure, has two avenues of attack. He may move to set aside an i...
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Opinion —Petitioner, an attorney, seeks a writ of prohibition to bar the superior court from enforcing its order for the production and inspection of records of confidential attorney-client communications contained in his law office files. Petitioner is one of several defendants in an action for declaratory relief and damages brought by Wendell H. and Loma E. Russell, the real parties in ...
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Opinion —Defendant appeals from a judgment entered after a jury convicted him of assault with a deadly weapon (Pen. Code, § 245), with use of a firearm. (Pen. Code, § 12022.5.) Since defendant does not challenge the sufficiency of the evidence, it is unnecessary for us to state the facts in detail. It was undisputed that as the victim Steven Mitchell was walking away after a confrontation, de...
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Opinion —This appeal primarily raises the applicability of the “welfare exemption” from property taxation to facilities used by a nonprofit corporation for theatrical and musical presentations by professional performers. Compelled by the broad rule of decision employed in Stockton Civic Theatre v. Board of Supervisors (1967) 66 Cal.2d 13 [56 Cal.Rptr. 658, 423 P...
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*789 Opinion —The California Correctional Officers’ Association and Correctional Series, Incorporated (association) appeals from the judgment of the superior court denying its petition for writ of mandate and refusing relief under its complaint for declaratory relief. The case involves the statutory interpretation of Penal Code section 830.5, subdivision (d), which grants to certain correct...
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Opinion Campbell Elementary Teachers Association, Inc., West Valley Federation of Teachers, Local 1953, AFT, AFL-CIO, and certain individual parties have appealed from a judgment denying mandate to annul certain personnel decisions of respondent Governing Board of the Campbell Union School District. In the fall of 1974, the Campbell Union School District began experiencing a decline in pupil ...
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Opinion Pizza Hut of San Diego, Inc. (Pizza Hut) seeks annulment of a workers’ compensation award on the ground the applicant’s claim is barred by the one-year statute of limitations established by Labor Code section 5405. 1 Upon reconsideration the Workers’ Compensation Appeals Board (Board) rejected Pizza Hut’s claim of bar for two reasons: (1) Pizza Hut had failed to prove its affirmativ...
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Opinion Defendant Joseph Leo Keller appeals from a judgment convicting him of possession of heroin (Health & Saf. Code, § 11350). He pleaded 'guilty after an unsuccessful motion to suppress evidence (Pen. Code, § 1538.5). Keller was granted three years probation. The contested search of Keller’s premises and discovery of the contraband was based upon Keller’s waiver of his Fourth Ame...
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Opinion Plaintiff appeals from a judgment of dismissal in favor of defendant County of San Bernardino. The judgment was entered after the county’s demurrer to plaintiff’s second amended complaint was sustained without leave to amend. 1 The issues raised concern the Tort Claims Act (Gov. Code, § 900 et seq.) and governmental immunity for discretionary acts. The second amen...
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Opinion Defendant pleaded guilty to arson and was sentenced to prison. A report was requested pursuant to Penal Code section 1168. The court subsequently received an unfavorable report from the Director of Corrections and declined to recall the commitment. Defendant then made a motion to recall the commitment. This motion was denied. Defendant then filed a notice of appeal from the latter order. T...
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Opinion Plaintiff, South Santa Clara Valley Water Conservation District (hereafter South District), appeals from a summary judgment in *855favor of defendant, Santa Clara Valley Water District (hereafter District). The relevant facts are undisputed: Plaintiff South District was created in 1938 under the grant of authority of a general act, the Water Conservation Act of 1931. (Stats. 1931, ch. 1020...
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*866 Opinion The principal issue presented on. this appeal is whether the application of Vehicle Code section 23110, subdivision (b) (throwing a substance at a vehicle with intent to do great bodily harm) is limited to cases involving a moving vehicle. We conclude that it is not so limited. Appellant Charles A. Whitney was convicted of a violation of Vehicle Code section 23110, subdivisio...
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Opinion This is an appeal by Phillip and Gail Berry 1 (Berrys), from a judgment denying relief on their complaint and quieting title on the cross-complaint of John Paul and Geraldine Sbragia (Sbragias), their neighbors, to a fence, on the theory of a prescriptive easement. We have concluded that the judgment must be reversed. The basic facts are not in dispute. The Berrys and Sbragias own a...
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Opinion Patrick M. Reynolds, a police officer, was, on February 18, 1972, charged by his watch officer, Captain Holmes, with five violations of department regulations which directly put his veracity in issue; eight others of failure to attend court after proper subpoena or adequate instruction and one violation of failure to be alert on duty; all occurring between June 28, 1971, and December 18, 1...
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Opinion Respondent seller sued appellant buyers for payment of $143,977.68 for hospital beds delivered under contract. Appellants raised affirmative defenses of defective goods and out-of-court rescission and also cross-complained for damages of $159,739. Under a settlement reached on 2 December 1975 appellants agreed to pay respondent $72,000 in 12 equal monthly installments with interes...
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Opinion We granted a writ in the within proceeding to review a decision of the Alcoholic Beverage Control Appeals Board (board) which affirmed a decision of the Department of Alcoholic Beverage Control (department). The facts are these: petitioner was granted a conditional on-sale license on April 1, 1975. The condition imposed on the license included a prohibition against showing se...
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Opinion Francine Gallegos, Louise Patterson and the Camp Meeker Improvement Association have appealed from a judgment denying a writ of mandate to annul an order of respondent California State Board of Forestry which had approved a timber harvesting plan submitted by real party in interest Chenoweth Lumber Company (hereinafter Chenoweth). We reverse the judgment. The initial timber h...
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Opinion A former franchise dealer for Mobil Oil Corporation appeals from the judgment in an unlawful detainer action evicting him from service station premises. The basic issues are the admissibility of parol evidence to modify the renewal provisions of appellant’s lease; the validity of the lease provisions permitting Mobil to refuse to renew the lease without any showing of “good cause”...
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Opinion This mandate proceeding is brought to review an order of the superior court denying a motion for discovery made by petitioner, who is a defendant in a criminal proceeding. In the underlying action petitioner is charged with the felony offense of battery upon Deputy Sheriff Mark McKague, in violation of Penal Code sections 242 and 243. The alleged offense occurred in the Los Angeles Co...
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Opinion Appellant Zane Ronald Gard was convicted, following a jury trial, of a violation of Penal Code section 182 (conspiracy), of a violation of Health and Safety Code section 11378 (possession for sale of amphetamines and barbiturates), and a violation of Health and Safety Code section 11379 (transporting and offering to sell amphetamines and barbiturates). The appeal is from the judgment. ...
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Opinion James Eugene Ely appeals from a judgment* of imprisonment which was rendered after he pleaded guilty to *1008possession of heroin for sale (Health & Saf. Code, § 11351). The appeal tests the propriety of an order denying a motion under Penal Code section 1538.5 to suppress certain evidence upon which the People’s case depended. The trial court’s ruling denying the motion to suppress evide...
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76 Cal.App.3d 1010 (1978) 143 Cal. Rptr. 350 In re VICTOR M. SERNA et al., on Habeas Corpus. Docket No. 30154. Court of Appeals of California, Second District, Division Five. January 20, 1978. *1012 COUNSEL Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Frederick R. Millar, Jr., and Steven H. Kaufmann, Deputy Att...
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Opinion —This appeal presents two questions apparently not heretofore confronted by the appellate courts of this state; (1) whether a permissive user of an automobile who is an insured under the omnibus clause of the vehicle owner’s liability insurance policy has a right of action against the owner’s insurer for its bad faith refusal to effect settlement within its policy limits, and (2) ...
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*4 Opinion The City and County of San Francisco and its board of supervisors (hereinafter City and Board, respectively) appeal from the judgment 1 of the trial court issuing a peremptory writ of mandate based upon a theory of estoppel. The action was instituted by five labor organizations, 2 representing craft members employed by the City, together with seve...
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Opinion Defendants and appellants Regents of the University of California et al. (including certain named University officials individually and in their representative capacities) * appeal from the judgment below granting injunctive and declaratory relief in favor of plaintiffs and appellants Mount Sutro Defense Committee et al. (including certain named individuals and nonprofi...
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Opinion William Gail Potter appeals from a judgment of imprisonment which was rendered after a jury found him guilty of forcible rape (Pen. Code, § 261). Appellant was arrested' shortly after he had, while intoxicated, broken into an apartment where he beat, raped and committed sodomy upon a mentally retarded and partially blind woman. Appellant testified that a woman invited him into her r...
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Opinion The State Personnel Board (Board) appeals from a judgment granting a peremptory writ of mandate to plaintiff, Fair Political *54 Practices Commission (Commission), directing the Board to approve salary classifications for Commission employees as fixed by the Commission. The essential facts are undisputed. The Political Reform Act of 1974, adopted by the initiative procedure, is refl...
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Opinion This is an appeal from a judgment of dismissal entered when plaintiff, James E. Mason, chose not to amend his complaint again after the trial court had sustained for the second time a demurrer of defendants, Levy and Van Bourg, with leave to amend. The complaint contains three counts. The first, for breach of contract, alleges that plaintiff and defendants, attorneys licensed to pract...
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Opinion On September 15, 1977, an information was filed against real party (herein Williams) charging him with two counts of burglary, two counts of grand theft, one count, of receiving stolen property, one count of arson, one count of felonious possession of an explosive device, one count of attempted murder, and one count of possession of altered and defaced property. A subsequent count was l...
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Opinion The plaintiffs-appellants are the Mountain View Chamber of Commerce, a nonprofit corporation, four individual sign owners in the City of Mountain View, and one corporate sign owner, a restaurant in the City of Mountain View. The appellants initially filed a complaint which contained six causes of action to enjoin the enforcement of the respondent City of Mountain View’s sign ...
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Opinion Lillian D. appeals from an order of the superior court which order declared three of her minor children to be free of parental custody and control pursuant to Civil Code section 232.1 *113Appellant is a woman, who, as of the time of this writing, is approximately 37 years old. According to the probation report which was received in evidence at the hearing on the petition, she has had one m...
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*119 Opinion These appeals 1 raise the question of whether there was sufficient substantial compliance with the referendum procedures of the Government Code. As we have concluded that there was substantial compliance as to both the time and place of filing, the portion of the judgment in favor of the Committee on the first cause of action must be affirmed. The bas...
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Opinion The City of Santa Monica, a municipal corporation (hereinafter referred to as Santa Monica), appeals from a judgment determining that Santa Monica construction permit fee ordinances have no application to a work of construction undertaken by the Regents of the University of California, a corporation (hereinafter referred to as Regents), permanently enjoining Santa Monica from enfo...
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*141Opinion Respondents Wendy Rudin and Julian Wayne Green were charged by information with possessing heroin for sale (Health & Saf. Code, § 11351, subd. (a)). They successfully moved under Penal Code section 995 for an order setting aside the information. As authorized by Penal Code section 1238, subdivision (a)(1), the People appeal and contend: “Police may use subterfuge when they knock on a ...
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*154Opinion Petitioner seeks a writ of mandate to compel discovery in a criminal action. Fads Petitioner is the defendant in criminal action No. C-37279 pending in the Orange County Superior Court. He is charged by information with unlawful possession of cocaine (Health & Saf. Code, § 11350), possession for sale of lysergic acid (Health & Saf. Code, § 11378), battery on a peace officer (Pen. Co...
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*172 Opinion In this case we hold that in the absence of any statutory procedure for so doing the juvenile court has the inherent power to determine a minor’s mental competence to understand the nature of proceedings pending under Welfare and Institutions Code section 707, subdivision (b) and to assist counsel in a rational manner at that hearing. Under Welfare and Instituti...
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Opinion We here consider the constitutionality of Health and Safety Code section 11550. 1 The section, which proscribes a broad range of conduct, states: “No person shall use, or be under the influence of any controlled substance which is (1) specified in subdivision (b) or (c) of Section 11054, specified in paragraph (10), (11), (12), or (17) of subdivision (d) of Section 11054, or specified...
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Opinion Trans Pacific Industries, one of three appellants in this appeal, has filed its motion, apparently pursuant to California Rules of Court, rules 41 and 43, for an order permitting it to waive its copy of the reporter’s transcript. It appears from uncontroverted declaration that the cost of the original reporter’s transcript is $15,010.65, of which movant is willing to pay its one-third shar...
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*215 Opinion This case involves the problem of the unsettled settlement. Plaintiff-appellant Mariann Gregory (hereafter appellant) appeals from an order of the Santa Clara County Superior Court, compelling enforcement of a compromise settlement and awarding her judgment against defendant-respondent (hereafter respondent) Robert L. Hamilton, in the sum of $7,500. 1 The ...
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Opinion A jury found defendant guilty of a violation of Penal Code section 12021 (possession of a firearm by a person who has been convicted of a felony). His appeal from the judgment raises the question whether his short-term possession of the firearm under the circumstances constituted a violation of the statute. We hold that it did, and distinguish People v. Mijares (1971) 6 Cal.3d 415 [...
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Opinion Defendant was convicted in municipal court of assault (Pen. Code, § 240) and of possession of a billy (Pen. Code, § 12020). Sentence was pronounced on November 4, 1976. The trial court did not advise defendant of his right to appeal. On January 20, 1977, defendant filed a motion for relief from default in the appellate department of the superior court, requesting that he be allowed to f...
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Opinion This appeal challenges an order by which Crocker National Bank was given instructions as testamentary trustee under the will of John E. Bose, deceased, and the final account of the trustee was settled. John E. Bose executed his last will on March 10, 1959. He died, unmarried and without issue, more than one month but less than six months after that date. He was survived by a cousin (Henrie...
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Opinion This proceeding for a review of a determination of the Workers’ Compensation Appeals Board raises a narrow issue of application of the “commercial traveler rule.” We apply a liberal interpretation of the rule as mandated by Wiseman v. Industrial Acc. Com. (1956) 46 Cal.2d 570 [297 P.2d 649]. Accordingly, we uphold a determination of the board finding that a worker killed in an autom...
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Opinion Irving Kessler sued Dudley Gray, an attorney, for professional negligence. Gray admitted negligence in failing to bring a cross-complaint filed by Kessler against Milton Koomer and Joel Bressel to trial within the required period so that the cross-complaint was dismissed for want of prosecution. Gray, however, resisted Kessler’s right to recover on the theory that Kessler’s lawsuit agai...
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Opinion In People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 258 [137 Cal.Rptr. 476, 561 P.2d 1164], our Supreme Court held that “trial courts have the authority to recuse prosecuting attorneys in appropriate circumstances.” Here we must determine whether the circumstances are appropriate to justify trial court action barring participation by a prosecuting attorney where: (1) a city at...
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Opinion Defendants pleaded guilty to attempted escape from prison (Pen. Code, § 4530, subd. (b)) and were sentenced to prison. Each contends that Penal Code section 4530, subdivision (b), denied him equal protection of the laws because it imposes the same penalty for both attempted escape and the escape itself. The concept of equal protection is that persons similarly situated with respect to...
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Opinion George Murray, who owned and operated the Big Star Motel, was convicted of four counts of receiving stolen property (Pen. Code, § 496). He appeals. Counts one and two are based upon a stolen Sony color television set (count one) and a stolen RCA portable television set (count two), both of which items were seized by the police from a combination storage and bedroom adjacent to appellant...
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*324 Opinion After an unsuccessful motion to suppress under Penal Code section 1538.5, the defendant was found guilty of robbery in the first degree. The Robbery Mrs. Barnhill and her daughter, Sainna Okeson, were seated at the kitchen table in Mrs. Barnhill’s apartment on Keel Street in Anaheim on the evening of August 2, 1976. Around midnight, a black man entered. With pistol in hand, h...
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Opinion This is an appeal from a judgment by the court sitting without a jury. The plaintiffs (the Cartys) brought an action against the defendant, the City of Ojai, a municipal corporation (the city) praying that two city ordinances changing the zoning on the property owned by them (Carty property) be declared void and that the zoning existing on this property before the adoption of the ...
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Opinion Plaintiff and appellant Ardath Drysdale appeals from a judgment of the Santa Clara County Superior Court denying her petition *348 for writ of mandate to compel the California Unemployment Insurance Appeals Board to set aside its decision denying unemployment compensation benefits. We affirm the judgment. Issue Is there substantial evidence to support the conclusion that plainti...
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Opinion Frances Willis (Frances) appeals from a judgment against her in the principal sum of $4,750, plus attorneys’ fees of $1,500 and costs of suit and appeal. She contends that, although a business debt incurred during marriage by her husband may be satisfied from community property, this does not warrant her personal liability under the facts of this case. We agree. The questions to be decide...
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*385 Opinion This appeal is from a preliminary injunction enjoining defendants William E. Cooper and Louis J. Weinberger from soliciting business from certain customers of plaintiff Jack R. Greenly and the various corporations through which Greenly does business. Statement of Facts Cooper and Weinberger, key employees of Greenly’s mortgage loan brokerage business fo...
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*398Opinion Appellant, Larry M. (hereinafter appellant) appeals from an order of the Alameda Superior Court sitting as a juvenile court sustaining a petition that Kelvin M., a minor (hereinafter the minor) be declared a dependent of the court. For the reasons hereinafter stated, we reverse the order. Appellant and the minor’s mother never married, but the parties have stipulated that appellant is...
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*408 Opinion This appeal is from an order rendered May 3, 1976, granting a motion to vacate an order of dismissal. Notice of entry of the order was mailed May 11, 1976. California Rules of Court, rule 2(a) requires that the notice of appeal be filed within 60 days from the mailing of the notice of entry of the order. The notice of appeal was filed August 6, 1976, beyond 60 days f...
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Opinion Appellant Terry C. Perkal (Wife) appeals from a minute order made on April 14, 1977, requiring her to make monthly contributions of $75 for the support , of each of two children to respondent Michael L. Perkal (Husband). There is a question as to the validity of the appeal. We proceed to the merits on the theory that the appeal was intended to be taken from the formal order.1 It will be no...
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Opinion Respondent City and County of San Francisco levies a tax upon the payrolls of employers who conduct business within its territorial limits. In two actions brought against it by appellants and other plaintiffs, they asserted the claim that various provisions of the United States Constitution invalidated the levy, as to them, because their local business activity engaged them in maritime fo...
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77 Cal.App.3d 444 (1978) 143 Cal. Rptr. 655 STANLEY CONSULTANTS, INC., Petitioner, v. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; C.W. PHELPS, Real Party in Interest. Docket No. 16951. Court of Appeals of California, Third District. January 26, 1978. *446 COUNSEL Stanley, Lande, Coulter & Pearce, Jon R. Pearce, Neumiller & Beardslee, Arthur Cofod and Darrell Glahn for Petitioner...
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Opinion The court found defendant guilty of four separate counts of pimping (Pen. Code, § 266h). He appeals from the judgment. In 1971 Susan, 17 years old, was picked up by defendant and taken to his apartment (210) at 960 South Oxford; thereafter she lived with defendant who was working as a “minister” and “door to door preacher.” A month later defendant asked Susan to help him with the rent...
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Opinion Respondent Linda Shambrum (Linda), by complaint filed on January 30, 1975, in which she was plaintiff, sued defendant Everard U. Frey (Frey). Frey is the appellant on this appeal. The complaint in common counts alleged she was assignee for collection and was predicated on money owing to her assignor “Richard Langguth K. G.,” a limited partnership organized under the laws of and situated in...
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Opinion By information, defendant was charged with attempted receiving stolen property in violation of Penal Code sections 664 and 496. Defendant entered a plea of not guilty. Trial was by jury which found the defendant guilty as charged. Defendant was placed on probation. He appeals from the judgment (order granting probation). We reverse the judgment. The sufficiency of the evidence admitte...
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77 Cal.App.3d 481 (1978) 143 Cal. Rptr. 772 DORIS M. CARROLL, Plaintiff and Appellant, v. PURITAN LEASING COMPANY, Defendant and Respondent. Docket No. 50655. Court of Appeals of California, Second District, Division Five. February 8, 1978. *483 COUNSEL Fred Crane, Stuart Sachs and Linda Audrey Underwood for Plaintiff and Appellant. Cavalletto, Webster, Mullen & McCaughey, Arthur W. Carlson a...
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*498 Opinion James Patton appeals from a judgment of the superior court denying a writ of mandate sought to compel the respondent, Governing Board of the San Jacinto Unified School District (Board), to pay to appellant, prior to the effective date of his disability retirement under the Public Employees’ Retirement System, his unused, accumulated sick leave. The central issue...
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*508 Opinion On December 15, 1976, in another proceeding, the trial court entered an order increasing appellant former husband’s child support payments. He filed notice of appeal in that action, 1 Civil No. 41544, on January 31, 1977. On March 1, 1977, respondent former wife filed a notice of motion for attorneys’ fees and costs to defend the appeal. On March 30, 1977, the trial court ordered...
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Opinion Defendant, Ronald W. French, appeals from a judgment entered on a jury verdict finding him guilty of driving while under the influence of alcohol (Veh. Code, § 23102, subd. (a)) and vehicular manslaughter (Pen. Code, § 19.2, subd. (3)(b)). He contends on this appeal that the trial court committed prejudicial error by admitting into evidence the results of a breath alcohol test, and that...
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Opinion This is an appeal from a judgment entered pursuant to order granting respondent’s motion for summary judgment. The underlying cause of action arose on August 26, 1968, when a light aircraft owned by San Jose Flying Jaguars, and piloted by a member of that club, Frank Denham, crashed near Cottage Grove, Oregon. Jeannette Grubb, mother of plaintiffs and appellants, Kevin Grubb, Keit...
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Opinion On December 17, 1975, an information was filed against Gaiy L. Morgan (Morgan) in the Los Angeles Superior Court (No. A 439203) containing seven counts. Morgan was charged in five of these counts as follows: count 2—violation of Penal Code section 459, burglary; count 3—violation of Penal Code section 211, robbery with great bodily injury; count 5—violation of Penal Code section 245, su...
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*541 Opinion This case involves claims for unemployment compensation by union employees of the appellants who became unemployed as a result of a labor dispute in 1972. Following complex administrative procedures and decisions, both employees and appellants-employers appealed a referee’s decision partially allowing and disallowing various union employee unemployment benefit c...
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Opinion Appellant was convicted of second degree burglary (Pen. Code, § 459) after a trial by the court without a jury. Pursuant to the stipulation of counsel and with the concurrence of the trial judge, appellant made a motion to suppress evidence resulting from a search of appellant’s car, which was heard during the trial and denied. On February 4, 1976, the victim, that is, the woman whose...
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*577 Opinion Appellant Phillips Construction Company (hereinafter Phillips) sought recovery against Camille Enterprises (hereinafter Camille) and its bonding company, respondent Argonaut Insurance Company (hereinafter Argonaut), for work performed under a construction contract. Subsequent to the filing of the complaint, Camille became bankrupt. Judgment was entered in favor of re...
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Opinion The trial court denied defendant A. Douglas Henderson’s motions to quash service of summons on him in Florida for lack of jurisdiction and to dismiss plaintiff Rosemaiy G. Lepera’s action against him in California for inconvenience of forum. We issued an alternative writ of mandate. Facts The motion papers (verified petition, verified complaint, and exhibits) show that d...
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Opinion On retrial, after this court reversed a judgment convicting defendant of the robbery of Guadalupe Escobar (Pen. Code, § 211), 1 a jury again found defendant guilty of such offense, which was determined to be second degree robbeiy as a matter of law. The jury also found true the allegation of the second amended information that defendant, during the commission of the offense, intention...
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Opinion Plaintiff, Lonnie Woolett, appeals from a judgment entered in favor of defendant, American Employers Insurance Company, after the trial court sustained general demurrers to both counts of the complaint and plaintiff declined to amend within the time allowed by the court. Plaintiff’s complaint, which contained two counts, was filed on March 3, 1976. The first count alleged tha...
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Opinion On the evening of September 1, 1976, Ruben Mendez and Teddy Perez were at Robert Gordon’s house in the town of Goshen. While the three youths were outside on the porch, appellant drove up and began talking to Robert. Ruben had seen appellant on two occasions prior to that evening. Although appellant was dating Robert’s sister, Sally, at the time, Robert testified that he did not know appel...
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Opinion The defendant was charged by indictment with theft (Pen. Code, §§ 484-487), misuse of public funds (Pen. Code, § 424, subd. 2), and presentation of fraudulent claims to the county (Pen. Code, § 72). Trial was by jury. The jury returned verdicts of guilty on the misuse of public funds count, not guilty on the fraudulent claims count, and was hung on the theft count. The court later...
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Opinion In 1972, following a court trial, Judge Kearney found respondent not guilty of two misdemeanor offenses.1 In June, 1977, respondent filed a motion to seal the records pursuant to Penal Code section 851.8 on the ground that he was innocent of the charges. He urged that the continued existence of the records of arrest and prosecution posed serious professional impediments and were of grave ...
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*677 Opinion James Theron Elliott appeals his convictions of conspiracy to commit murder, robbery, grand theft and insurance fraud, murder in the first degree (for hire) and robbery in the first degree. Issues 1. Was appellant prejudiced by the manner in which count one (the conspiracy count) was pleaded? 2. Was the trial court correct when it denied appellant’s motions to suppress cert...
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*693 Opinion In this consolidated appeal, one plaintiff, Highlanders, Inc., a California corporation, appeals from an order of dismissal made below on July 19, 1976, in favor of certain defendants named in plaintiff’s third amended complaint, and both plaintiffs, Highlanders and Emanuel M. Comora, appeal from an order of dismissal made below on June 10, 1976, in favor of certain ...
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Opinion Defendants appeal from a judgment on a jury verdict rendered against them and from the order denying their motions for judgment notwithstanding the verdict in a medical malpractice case. Defendants Bernard A. Aran, M.D. (hereinafter defendant Aran) and Rose Medical Group, Inc., 1 appeal also from an order after judgment on December 23, 1975, denying their motion to tax ...
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Opinion In case A438396 defendant pleaded guilty to second degree burglary in August 1975, and was placed on probation, subject to serving one year in the county jail with no credit given for time served. Defendant claims that he was incarcerated from the time of his arrest in April 1975 until the end of his one-year county jail term in October 1976.1 We can assume that as of 1977 defendant had sp...
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Opinion The Orange County Flood Control District (district) appeals from a judgment in condemnation and an order awarding attorneys’ fees. 1 The main issue in this appeal is whether the trial court erred in permitting the condemnee to pursue the theory that the highest and best use of the property in the before condition was a nonconforming use as of the date the e...
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Opinion Petitioner, Victor Carrafa, an inmate at Folsom State Prison, by his habeas corpus proceeding challenges the actions of the Department of Corrections (Department). The Department has prohibited, at least temporarily, his marriage with his fiancée, Joan Vibbard. 1 The right to marry is a statutorily recognized fundamental constitutional guarantee. The right was impermissibly infringe...
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Opinion On April 26, 1977, a decision and order was issued by the Agricultural Labor Relations Board (Board) finding that petitioner had committed an unfair labor practice by denying access to representatives of the United Farm Workers of America, AFL-CIO (UFW), in violation of Labor Code sectibn 1153, subdivision (a). The Board ordered that petitioner cease and desist from the unfair labor pra...
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*838 Opinion This is an appeal from a judgment dismissing an amended complaint brought by an agricultural employee against his employer predicated upon the trial court having sustained a demurrer to the amended complaint. Taking the allegations of the amended complaint as true, as we must, the facts are that appellant was an agricultural laborer, a member of the Western Conf...
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Opinion Petitioner Jerome R. Lewis, an attorney, is a defendant in a legal malpractice suit brought against him by real party in interest Virginia A. Sullivan. For convenience and consistency we shall refer to the parties as defendant and plaintiff respectively. 1 Defendant seeks a writ of mandate after the Sacramento Superior Court denied his motion for summary judgment, He...
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Opinion This is an appeal from a judgment of the Superior Court of Sacramento County denying a California Highway Patrol sergeant’s petition for writ of mandamus. The petition sought to compel the Board of Administration of the Public Employees’ Retirement System (Board) to set aside its decision denying a disability retirement under section 21020 et seq. of the Government Code. Plaintiff Hor...
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Opinion Appellant was charged with murder (Pen. Code, § 187) and convicted by a jury of voluntary manslaughter (Pen. Code, § 192, subd. 1). We have concluded that the conviction should stand but that the portion of the judgment declaring appellant suffered a prior conviction must be reversed for failure to fully advise appellant of his rights in regard to admission of a prior felony conviction....
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*881 Opinion Appellant appeals from the judgment and sentence imposed after he had been found guilty of being an accessory to a crime (Pen. Code, § 32), in that he had given to the police a false alibi for another person accused of murder, and guilty of conspiracy to being an accessory (Pen. Code, § 182). On appeal, appellant argues three grounds as constitutional error and then urges that ...
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*894 Opinion The issue posed by this writ proceeding is whether respondent superior court abused its discretion on December 5, 1977 in recusing the District Attorney of Los Angeles County from prosecuting the case of People v. Edgar Lee Warren (L.A. Super. Ct. No. 309694) on the motion of both Warren and the district attorney, the real parties in interest herein. 1 Res...
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Opinion On April 14, 1976, nine days after the death of Howard Robard Hughes, Jr., (hereinafter decedent), Richard C. Gano, Jr., (hereinafter respondent) was appointed special administrator of the California estate of decedent in an ex parte proceeding. Mr. Gano is a resident of California and a first cousin of decedent. He had been nominated as special administrator by Annette Gano Lummis of Hous...
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Opinion Defendant, an attorney, was charged by indictment with unlawfully recording a confidential communication without permission of both parties to the conversation. (Pen..Code, § 632.) The trial court in Tehama County considered and granted defendant’s motion to quash the indictment. Its order was made on two separate grounds: (1) the statute was unconstitutionally vague, and (2) it was not a ...
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*914 Opinion On August 11, 1976, a demurrer to the third amended complaint for damages for medical malpractice was sustained without leave to amend and on the same date a written order of dismissal was filed as provided in Code of Civil Procedure section 581, subdivision 3. The demurrer was sustained on the ground plaintiff failed to file a claim relating to his cause of action w...
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Opinion Appellant appeals a judgment for defendant City and County of San Francisco in an action for personal injuries. *920 Facts Counsel before the trial court agreed that the trial could be bifurcated and the issue of liability be determined by the court upon certain stipulated facts with the issue of damages to be thereafter determined. Appellant sustained personal injuries on March...
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Opinion Appellant, Michael Nathaniel Allen, appeals from a judgment following a jury conviction of robbery in the first degree (Pen. Code, § 211). 1 The judgment of conviction is reversed. 2 *928 Facts Minor, William O., and another young man participated in a robbery of Geraldine Sprechman on August 13, 1976, at approximately 11 p.m. in a lighted are...
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*943 Opinion Respondent Kenneth Kirkpatrick was chief probation officer, a position then in the classified civil service of Los Angeles County, from June 6, 1968, until November 19, 1974, when he was discharged by the Los Angeles County Board of Supervisors. 1 He demanded a hearing before the Los Angeles County Civil Service Commission, appellant herein, which hearing was held in March 1975...
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*953 Opinion Plaintiff appeals from a judgment in favor of defendants, entered after the granting of defendants’ motion for summary judgment. Facts The facts, as revealed by the pleadings and the declarations filed in support of and in opposition to the motion for summary judgment are these: In early 1969 the defendant church (Shepherd) owned two parcels in the nor...
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Opinion Petitioner seeks immediate release from the jurisdiction of the California Youth Authority. These are the undisputed facts: Petitioner was bom on March 4, 1959 and therefore reached his 18th birthday on March 4, 1977. He was adjudged a ward of the juvenile court on December 17, 1975, and has continued in that status until the present time. On March 11, 1977 a juvenile court p...
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*1009 Opinion This is a People’s appeal from an order of the superior court dismissing the action on motion of defendants pursuant to Penal Code section 1387. 1 On February 8, 1977, a felony complaint was filed in the Sacramento Municipal Court charging defendants in count one with possession of cocaine for sale (Health & Saf. Code, § 11351) and in count two with pos...
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Opinion Defendants, Kwang-Wei Han and Han & Company (hereinafter referred to as Han), appeal from a judgment on a sister state judgment, entered pursuant to Code of Civil Procedure section 1710.10 et seq. after defendants’ motion to vacate had been denied. On May 13, 1976, plaintiff, Tom Thumb Glove Company, Inc., obtained a judgment against Han in a North Carolina court. In its judg...
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Opinion Insofar as defendants Sheegog (defendants) are concerned, plaintiff instituted this action to reform a deed by inserting therein a covenant for restricted use of the property conveyed and to enjoin defendants, who were the named grantees, from conveying the property to any person unwilling to abide by the restrictive covenant. Summary judgment was entered in favor of defendants, and pla...
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Opinion Appellant, Frank Unruh, a four-year employee of the Selma Police Department, was dismissed from his employment by the city council. After a two-day hearing the personnel commission upheld the dismissal. He petitioned the superior court for writ of administrative mandamus (Code Civ. Proc., § 1094.5). The cause was submitted on the record of the administrative hearing before the per...
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78 Cal.App.3d 32 (1978) 144 Cal. Rptr. 431 THE PEOPLE, Plaintiff and Respondent, v. BOBBY LARON PAUL, Defendant and Appellant. Docket No. 15483. Court of Appeals of California, First District, Division One. February 27, 1978. *35 COUNSEL David F. Brown, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Atto...
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Opinion Plaintiffs appeal from a portion of the judgment taken against them by the defendant City and County of San Francisco. The Board of Supervisors of the City and County of San Francisco on April 7, 1965, adopted a resolution that set forth its general objective to substantially improve its principal thoroughfare, Market Street. During the same period the Bay Area Rapid Transit ...
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Opinion This is an appeal from an order invalidating standards of aid and care for indigent and dependent poor set under San Francisco’s welfare program. The principal issue is whether San Francisco violated state and federal law by including the value of food stamps in setting welfare benefit levels. Before we reach that issue, however, we will first consider appellant City and County of...
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Opinion We deny Inyo County’s motion for imposition of costs (amounting to $1,067.61) and an attorney fee (of $85,267.50) against the adverse party, City of Los Angeles. The lawsuit is an original mandate action in which Inyo County is the petitioner and Los Angeles the respondent. In 1973 we issued a peremptory writ of mandate directing the City of Los Angeles and its department of ...
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Opinion —Jose Rosalesappeals from a judgment by which the court dismissed his complaint against respondents General Motors Corporation, International Union, United Automobile, Aerospace and Agricultural Implemental Workers of America (United Auto Workers) and Local 1364 of the United Auto Workers. We affirm the judgment. Appellant alleged that General Motors had breached the collecti...
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Opinion The state seeks to condemn in fee a parcel of land adjoining a state highway and to condemn an easement in property *122adjoining the parcel to be taken in fee. After a hearing in which the issue of the right to condemn was decided against the landowners,1 the parties stipulated to the amount to be paid and a final judgment of condemnation was entered. The landowners appeal; we affirm. In ...
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Opinion By information defendants were charged with burglary in violation of Penal Code section 459. Each defendant entered a plea of not guilty. Each defendant made a motion to suppress evidence under Penal Code section 1538.5, which was denied. After trial by jury each defendant was found guilty of burglary of the first degree. The court denied probation and sentenced each defendant to state ...
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Opinion Real party in interest herein pleaded nolo contendere in respondent court to a charge of unlawful sexual intercourse committed on March 2, 1973. He was placed on probation. On September 20, 1977, he was found to be in violation of probation. Probation was revoked. Respondent sentenced him to state prison for a term of six months to two years. He was credited with having spent 206 days i...
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Opinion Daniel J. Preciado appeals from the judgment of conviction entered following his guilty plea to possession for sale of marijuana. (Health & Saf. Code, § 11359.) Pursuant to stipulation, appellant submitted on the transcript of the preliminary hearing a motion to suppress evidence under Penal Code section 1538.5. The motion was denied. Appellant then withdrew his initial plea of no...
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*154 Opinion Petitioner filed a workers’ compensation claim for injuries she sustained in an automobile accident while en route to her home from her place of employment. The workers’ compensation judge found that the injury occurred in the course of employment but the board, on reconsideration, determined that the homeward trip was governed by the normal “going and coming” rule a...
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78 Cal.App.3d 161 (1978) 144 Cal. Rptr. 111 In re DAVID DALE NOLAND on Habeas Corpus. Docket No. 3549. Court of Appeals of California, Fifth District. March 1, 1978. *163 COUNSEL Catherine S. Bailey for Petitioner. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, James T. McNally and Patrick A. McAravy, Deputy A...
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Opinion This is an appeal from the trial court’s judgment granting respondent’s petition for a peremptory writ of mandate. The background facts may be summarized as follows: Respondent, Frances Mendoza, was an employee of the University of California (University) at the San Francisco Medical Center. From October 1, 1969, to October 21, 1974, she held a clerical position in the medical records...
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78 Cal.App.3d 178 (1978) 144 Cal. Rptr. 169 MARVIN BRAUDE et al., Plaintiffs and Appellants, v. AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA et al., Defendants and Appellants. Docket No. 49807. Court of Appeals of California, Second District, Division Four. March 2, 1978. *180 COUNSEL Alvin S. Kaufer, James A. Hamilton, Carlyle W. Hall, Jr., John R. Phillips, Brent N. Rushforth and Fredric P. Sutherlan...
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Opinion Plaintiff and appellant Gene E. Taylor appeals from a judgment dismissing his action for personal injuries when he failed to bring it to trial within five years of its commencement (Code Civ. Proc., *194 § 583, subd. (b)). 1 We set forth the facts as revealed by the evidence that support the judgment in favor of the respondents Raymond E. Shultz and Samuel ...
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78 Cal.App.3d 198 (1978) 144 Cal. Rptr. 217 THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO FRANCO MEDRANO et al., Defendants and Appellants. Docket No. 8962. Court of Appeals of California, Third District. March 2, 1978. *202 COUNSEL Jerome Cohen, Sanford N. Nathan, George C. Lazar, Mary H. Mocine, W. Daniel Boone, E. Michael Heumann and Glen Rothner for Defendants and Appellants. Evelle J. Y...
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Opinion Plaintiff appeals from a judgment, entered after summary judgment for defendants was granted, dismissing his action for false arrest and false imprisonment. Facts On February 12, 1974, plaintiff Demetrios Giannis left his place of employment, Dino’s Bar, about 2:20 a.m. Dino’s is located in the “Tenderloin” district of the City and County of San Francisco. The “Tenderloi...
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Opinion This appeal is from a summary judgment denying appellants the right to insurance proceeds payable on the death of their father. *229Facts; Appellants, the children of Lloyd Wilson by a former marriage, claim the insurance proceeds from policies issued to Lloyd Wilson. Respondent, Leatrice Wilson, was the wife of Lloyd Wilson at the time of his death; she and decedent were in the process o...
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78 Cal. App. 3d 242 (1978) 144 Cal. Rptr. 123 SAMUEL MARTINEZ, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent. Docket No. 51847. Court of Appeals of California, Second District, Division Five. March 3, 1978. *243 COUNSEL Erwin Sobel and Max Abrams for Plaintiff and Appellant. Patterson, Ritner & Lockwood, Harold H. Gartner III, Jeralyn Keller, Horvitz, Greines & Horow...
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*249Opinion Defendant appeals from the judgment after the superintendent of the California Rehabilitation Center (CRC) terminated his civil commitment to that institution (Welf. & Inst. Code, § 3053.) Prior to the CRC commitment, defendant had pleaded guilty to selling heroin (Health & Saf. Code, § 11352). The plea was entered pursuant to a plea bargain calling for commencement of civil addict co...
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78 Cal.App.3d 261 (1978) 144 Cal. Rptr. 442 DISTRICT ELECTION OF SUPERVISORS COMMITTEE FOR 5% et al., Plaintiffs and Respondents, v. THOMAS M. O'CONNOR, as City Attorney, etc., et al., Defendants and Appellants. Docket No. 40907. Court of Appeals of California, First District, Division One. March 6, 1978. *263 COUNSEL Thomas M. O'Connor and George Agnost, City Attorneys, James J. Stark and Burk E...
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78 Cal. App. 3d 281 (1978) 144 Cal. Rptr. 241 Conservatorship of the Person and Estate of ARTHUR J. BUCHANAN. WILLIAM H. MEYER, as Public Guardian, etc., Petitioner and Respondent, v. ARTHUR J. BUCHANAN, Objector and Appellant. Docket No. 41256. Court of Appeals of California, First District, Division Two. March 7, 1978. *285 COUNSEL Paul N. Halvonik, State Public Defender, under appointment by t...
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Opinion Plaintiffs-appellants J. A. Meyers & Company (JAM-CO) and Eleanor Meyers filed a second amended complaint for money damages, alleging negligence on the part of defendants-respondents Los Angeles County Probation Department and certain of its employees Jacques A. Ellis (Ellis) and Hilaiy J. Laz (Laz) for failing to warn plaintiffs that Jerome Klein (Klein), a probationer, was a con...
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78 Cal.App.3d 316 (1978) 142 Cal. Rptr. 572 THE PEOPLE, Plaintiff and Respondent, v. GREGORY ANTHONY HOPKINS, Defendant and Appellant. Docket No. 31116. Court of Appeals of California, Second District, Division Five. March 7, 1978. *318 COUNSEL Paul Halvonik, State Public Defender, under appointment by the Court of Appeal, Charles M. Sevilla, Chief Assistant State Public Defender, and Edward H. S...
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*336 Opinion The central issue presented by this original proceeding is whether a real property transfer tax imposed by a city is an excise tax or a real property tax. In a bifurcated trial of a taxpayers’ class action to recover real property transfer taxes imposed and collected by the City of Huntington Beach, the trial court determined the liability issue in favor of real...
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78 Cal.App.3d 343 (1978) 144 Cal. Rptr. 451 THE PEOPLE, Plaintiff and Respondent, v. STEPHEN JOSEPH GLIKSMAN, Defendant and Appellant. Docket No. 9303. Court of Appeals of California, Fourth District, Division Two. March 7, 1978. *346 COUNSEL John N. Flood, Monroe & Riddet and Keith C. Monroe for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant At...
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Opinion This appeal from a summary judgment in declaratory relief raises an issue apparently not previously considered in California, We are required to determine whether, where the obligor on a fidelity bond has fully reimbursed its obligee for loss caused by the embezzlement of an employee, the obligor or the obligee is entitled to increases in value of property acquired by the employee with t...
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Opinion Harold M. 1 appeals from orders sustaining petition alleging that he and two other minors 2 conspired to commit burglary and committed six overt acts in furtherance of the conspiracy, and declaring him to be a ward of the court under section 602, Welfare and Institutions Code. Lloyd arrived at the home of the minor, around 9 a.m.; later the minor received a telephone call from Sco...
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Opinion By an amended grand jury indictment, Thad Smith Shirley and Joyce A. Richards (hereinafter respondents) were charged in count I with grand theft in violation of Penal Code section 487, subdivision 1. In count II, respondents were charged with forgery in violation of Penal Code section 470. Respondents demurred to the amended indictments; the demurrers were overruled. Pursuant to Penal...
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Opinion Petitioner, Homer E. Detrich, as Director of the San Diego County Department of Public Welfare, a licensed adoption agency, sought to have the minors, Antonio F., Maria G. F., Eligió F., and Leticia F., declared free from parental custody and control of their *443 mother, Maria F. Detrich’s petition, for statutory authority, relies upon Civil Code section 232, subdivi...
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78 Cal. App. 3d 455 (1978) 144 Cal. Rptr. 229 In re JERRY RAY EWING on Habeas Corpus. THE PEOPLE, Plaintiff and Respondent, v. JERRY RAY EWING, Defendant and Appellant. Docket Nos. 8786, 8640. Court of Appeals of California, Fourth District, Division One. March 3, 1978. *456 COUNSEL Appellate Defenders, Inc., under appointment by the Court of Appeal, George Wetzel and Elaine A. Alexander for Defe...
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*465 Opinion Defendants, the Silvestres, appeal from a judgment ordering them to remove certain structures on their residential property (herein sometimes called lot 18) within 30 days after entry of judgment or pay to plaintiffs, the Sains, the sum of $15,000. The judgment also awarded plaintiffs $4,200 in attorneys’ fees and court costs in the sum of $243. The judgment was ente...
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*501 Opinion In proceedings pursuant to Code of Civil Procedure section 690.31, 1 the Orange County Superior Court granted real party’s application for writ of execution against a dwelling house. The homeowner petitioned this court for a writ of prohibition and/or certiorari to review the propriety of the procedure followed and the validity of the order granting issuan...
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Opinion Appellant, David Allen Jackson, was convicted by a jury of the theft of a Honda motorcycle (Pen. Code, § 487 (count one)) and of concealing, withholding or selling the same Honda and a *536 Singer sewing machine (Pen. Code, § 496, subd. 1 (count two)). On this appeal he contends that count two must be reversed because a person cannot be guilty of stealing and of concealing, withholdin...
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Opinion This original proceeding presents the question whether the State Insurance Commissioner (commissioner), as liquidator of an insolvent insurance company, may utilize an order to show cause procedure to recover from an agent of the insolvent company sums allegedly due under agency contracts. The background of this proceeding is as follows: Pursuant to the commissioner’s ap...
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Opinion We consider whether taxpayers have standing to sue the Controller, a state official, for mandatory injunctive and declaratory relief seeking to compel his exercise of discretion. We hold only that the taxpayers have standing. On the record before us, we conclude that the affirmative relief sought, if appropriate, must await a full hearing before the trial court. We reverse and rem...
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Opinion Health and Safety Code section 11550 requires a mandatory 90-day county jail punishment as a condition of probation. Plaintiffs (petitioners in the trial court) contend that this is cruel and *595 unusual punishment and violates their right to equal protection. We reject their contentions. Plaintiffs Carrie Smith and Elizabeth Gilbreath are charged in separate Sa...
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Opinion Seventeen-year-old Jose S. was declared a ward of the juvenile court (Welf. & Inst. Code, § 602) after a finding he *624 committed an act of oral copulation on a minor female (Pen. Code, § 288a). He was granted one year probation and released to his parents. On appeal Jose S. contends, inter alia, the juvenile judge improperly denied his timely motion of disquali...
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Opinion Lost Hills Water District, respondent herein (hereinafter District), is a California Water District in Kern County organized under division 13 of the Water Code. It has contracted with the California Department of Water Resources to receive certain quantities of water from the California Aqueduct for the purpose of providing irrigation water to the lands located within its boundar...
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Opinion This is an appeal from an order of the Superior Court of Contra Costa County which granted defendant’s motion to vacate a clerk’s judgment for plaintiff based upon a Nevada judgment. *638 Plaintiff and defendant are both attorneys. Defendant, who was unable to attend a court hearing in Minden, Nevada, on behalf of a client, requested plaintiff to make the appearance ...
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*643 Opinion We granted an alternative writ of mandate to review the legality of an order of the superior court denying petitioner’s motion to quash a “subpoena re deposition” served upon the state’s Attorney General. The facts are uncontroverted. In an action successfully maintained by them against California State Board of Pharmacy the superior court ordered that real parties in interes...
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*649 Opinion On February 27, 1977, David Ray Brown, a prisoner in San Quentin State Prison, filed a petition for habeas corpus in the Superior Court of Marin County contending that the penalty provision of the statute under which he was sentenced was unconstitutional insofar as it provided for a three-year minimum period for eligibility for parole. The People have appealed from an order of th...
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78 Cal. App. 3d 654 (1978) 144 Cal. Rptr. 316 JERALDINE CANE et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents. Docket No. 39501. Court of Appeals of California, First District, Division Four. March 15, 1978. *655 COUNSEL Jerome N. Field and Reed H. Bement for Plaintiffs and Appellants. Thomas M. O'Connor, City Attorney, George E. Baglin, De...
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Opinion Jacqueline C. Moore appeals from a judgment rendered pursuant to Code of Civil Procedure section 583, subdivision (a), dismissing for want of prosecution her malpractice action against respondents El Camino Hospital District and Douglas Downey, M.D. The motion for discretionary dismissal, pursuant to the two-year statute, was made four years and seven months after the filing ...
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78 Cal. App. 3d 665 (1978) 143 Cal. Rptr. 570 TOLSTOY CONSTRUCTION COMPANY, Plaintiff, Cross-defendant and Respondent, v. MAMIE R. MINTER, Defendant, Cross-complainant and Appellant. Docket No. 50391. Court of Appeals of California, Second District, Division Four. February 7, 1978. *667 COUNSEL Charlotte Low for Defendant, Cross-complainant and Appellant. Mike Mayo for Plaintiff, Cross-defendant ...
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Opinion By information, defendant was charged with the offense of burglary committed on August 31, 1976, in violation of Penal Code section 459. It was alleged that, on the date in question, defendant entered the apartment occupied by Eva Operskalski with the intent to commit larceny. The information was subsequently amended to add the allegation after the phrase “with the intent to commit larceny...
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Opinion In this habeas corpus proceeding petitioner seeks a modification of the terms of his probation so as to give him credit for presentence custody pursuant to Penal Code section 2900.5. The facts are not in dispute. On March 11, 1977, an information was filed charging petitioner with assault with a deadly weapon upon a peace officer, a violation of Penal Code section 245, subdivision (b). Und...
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78 Cal. App. 3d 722 (1978) 144 Cal. Rptr. 338 THE PEOPLE, Plaintiff and Respondent, v. TERRY GENE DALE, Defendant and Appellant. Docket No. 28813. Court of Appeals of California, Second District, Division Five. March 15, 1978. *725 COUNSEL Jo Ann S. Curtis, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant ...
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78 Cal.App.3d 735 (1978) 144 Cal. Rptr. 344 THE PEOPLE, Plaintiff and Respondent, v. WALTER HENRY WOLF, Defendant and Appellant. Docket No. 30125. Court of Appeals of California, Second District, Division Five. March 15, 1978. *737 COUNSEL Albert C.S. Ramsey and Edward P. George, Jr., for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney Gener...
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78 Cal. App. 3d 745 (1978) 143 Cal. Rptr. 337 MARVIN OATES, Plaintiff and Appellant, v. COUNTY OF SACRAMENTO et al., Defendants and Respondents. Docket No. 16594. Court of Appeals of California, Third District. March 15, 1978. *746 COUNSEL Panattoni & Farrell and Carl D. Panattoni for Plaintiff and Appellant. John B. Heinrich, County Counsel, and Monte L. Fuller, Deputy County Counsel, for De...
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78 Cal.App.3d 753 (1978) 144 Cal. Rptr. 528 In re WILLIAM STEVEN LEE et al. on Habeas Corpus. Docket No. 9452. Court of Appeals of California, Third District. March 15, 1978. *755 COUNSEL Robert N. Chargin, Public Defender, and Jack Rosenberg, Deputy Public Defender, for Petitioners. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Arnold O. Overoye, Assista...
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78 Cal. App. 3d 765 (1978) 144 Cal. Rptr. 778 MORRO HILLS COMMUNITY SERVICES DISTRICT, Plaintiff and Respondent, v. BOARD OF SUPERVISORS OF SAN DIEGO COUNTY, Defendant and Appellant. Docket No. 14713. Court of Appeals of California, Fourth District, Division One. March 16, 1978. *768 COUNSEL Donald L. Clark, County Counsel, and Gregory C.M. Garratt, Deputy County Counsel, for Defendant and Appell...
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Opinion In 1973 a jury convicted petitioner of kidnaping (Pen. Code, § 207) and rape by threat of force (Pen. Code, § 261, subd. 3) and found he was armed with and used a firearm in connection with each offense. The judgment of conviction was affirmed on appeal by this court *792 in an unpublished opinion (4 Crim. 6056). Petitioner, who is presently confined in state prison seeks habeas corpu...
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Opinion The appellant is seeking a reversal from a conviction of nine felony charges. Six of the charges arose from the alleged sexual assault and robbery of Angela O. on May 4, 1976. The information (No. 92369) on this incident was filed June 2, 1976. The remaining three felony charges arose from the alleged assault, false imprisonment and burglary on May 8, 1976, of Kathleen S. This inf...
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78 Cal. App. 3d 855 (1978) 144 Cal. Rptr. 367 CENTRAL CALIFORNIA EQUIPMENT COMPANY, Plaintiff and Respondent, v. DOLK TRACTOR COMPANY et al., Defendants and Appellants. Docket No. 3108. Court of Appeals of California, Fifth District. March 17, 1978. *858 COUNSEL Sylvia & Blegen, Jackson & Wheatley, Jon A. Blegen and Gregory F. Gilbert for Defendants and Appellants. Vizzard, Baker, Sulliva...
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*870Opinion These are appeals from orders of the juvenile court that removed custody of a boy and girl from their mother because of the mother’s emotional instability. No physical or mental abuse has been directed toward the children, but the mother apparently suffers from extreme emotional disability. On February 9, 1977, Mrs. Lampe, a counselor at Thompson Junior High School, had a visit from Ca...
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*877 Opinion On Januaiy 26, 1976, Philip H. Henderson and Robert Searles, taxpayers of the Los Angeles Unified School District, filed a complaint against the Los Angeles City Board of Education and six of the seven elected members of the board 1 seeking to enjoin the board and its membership from filling a vacancy in office No. 2 of the board by resort to private, nonpublic, secret meetings...
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78 Cal. App. 3d 885 (1978) 144 Cal. Rptr. 624 MILDRED I. COLBY et al., Plaintiffs and Appellants, v. EDWARD J. SCHWARTZ et al., Defendants and Respondents; FIDELITY AND CASUALTY COMPANY OF NEW YORK, Intervener and Respondent. Docket No. 51318. Court of Appeals of California, Second District, Division Five. March 20, 1978. *887 COUNSEL Bell & Shapiro and Sydney Halem for Plaintiffs and Appella...
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78 Cal. App. 3d 894 (1978) 144 Cal. Rptr. 565 In re ROBERT H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ROBERT H., Defendant and Appellant. Docket No. 17011. Court of Appeals of California, Third District. March 20, 1978. *896 COUNSEL William A. Wright, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney ...
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Opinion Petitioner William R. Thorley seeks a prerogative writ to compel the San Diego County Superior Court to grant a stay of proceedings, to vacate its trial setting, and to admit a foreign will to probate for ancillary administration. The principal question presented is whether an appealable Utah judgment admitting a will to probate is a final judgment entitled to full faith and credit by...
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Opinion Plaintiff Solomon Contreras brought an action for damages for medical malpractice against defendants St. Luke’s Hospital and Carl E. Borders, M.D. The action was based on asserted negligence by defendants relating to surgery on plaintiff’s knee and a post-operative knee infection. Plaintiff now appeals from a judgment in favor of both defendants made pursuant to an order of the tr...
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*937 Opinion Defendants City of San Jose, a chartered city, its city manager and its chief of police (hereinafter appellants) appeal from a judgment declaring that they must meet and confer with the San Jose Police Officer’s Association (hereinafter respondent) before changing the portion of their use of force policy governing when a peace officer may discharge his firearm. Respo...
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Opinion Dahlberg Electronics, Inc., and Detection Sciences, Inc., defendants, appellants and respondents, 1 appeal from a judgment 2 permanently enjoining them “from advertising their hearing aids in California by representing that said hearing aids have any effect on diseases or disorders of the ear, or auditory apparatus, including hearing loss and deafness.” Georg...
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*964 Opinion City and County of San Francisco Defendant-appellant (hereafter City) appeals from an order granting a preliminary injunction restraining enforcement of the five-year durational residency requirement provided in the city charter for persons appointed to boards and commissions of the City. Facts Respondents, who are members of an association interested in the participation of ...
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Opinion Cleophas Eloby seeks a writ of mandamus commanding respondent superior court to hear a motion by petitioner for new trial after trial de novo in the superior court of a small claims court action in which petitioner is plaintiff and real party in interest is defendant. Petitioner had sought recovery in the sum of $750 for allegedly defective work done on his automobile. Trial in the sm...
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Opinion In these consolidated wrongful death actions, plaintiffs, the parents of the decedent, sought damages against the City of Los Angeles and two members of the Los Angeles Police Department 1 for the shooting death of the decedent. The shooting occurred when police officers of the City of Los Angeles, seeking to arrest a suspect for a crime committed in that city, mis...
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Opinion Defendant Peter Alvarado Medina was convicted by a jury of second degree murder. The jury found that defendant had used a firearm in the commission of the offense. Probation was denied and defendant was sentenced to prison. Facts At about 9 p.m., on July 8, 1976, the victim, William Webb, was shot in the face and shoulder with a shotgun. He died the next day. Paul Parrilla was sta...
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78 Cal. App. 3d 1009 (1978) 144 Cal. Rptr. 573 LESTER DORMAN, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, I.T.E. IMPERIAL et al., Respondents. Docket No. 51392. Court of Appeals of California, Second District, Division Five. March 21, 1978. *1013 COUNSEL Ghitterman, Schweitzer & Herreras and William A. Herreras for Petitioner. Clopton, Penny & Keeney, Frank J. Keeney, Duenow, Burk...
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Opinion On December 12, 1977, real party in interest, Charles Colbert, was arraigned on an information charging murder (count 1), forcible rape (counts 2, 4, 7 and 10), forcible sodomy (counts 3 and 5), forcible oral copulation (counts 6, 8, and 11), and assault by means of force likely to produce great bodily injury (count 9). On December 30, 1977, Colbert was arraigned on an amended informa...
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Opinion After his conviction by a jury of possession of a controlled substance in violation of Health and Safety Code section 11377, defendant filed this appeal. The error complained about is the trial court’s pretrial denial of his motion to suppress evidence pursuant to Penal Code section 1538.5. *Supp. 3An officer testified that he and his partner stopped defendant’s vehicle because it lacked l...
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*17 Opinion —Plaintiff, Fred Lowell, Jr., the sole owner of Lowell Freight Lines, Inc., a common carrier, appeals from a judgment of dismissal entered after respondent’s demurrer to the second amended complaint was sustained without leave to amend. Appellant filed his original complaint (Complaint) on January 30, 1976, alleging causes of action for interference with prospect...
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Opinion The Insurance Commissioner of the State of California appeals from an order of the trial court granting a preliminary injunction in an action brought against him by two business associations, Associated California Loggers, Inc. (ACL) and California State Builders Exchange, Inc. (CSBE). The third plaintiff Builders Exchange Service is an adjunct of CSBE and will be included in our ...
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79 Cal.App.3d 57 (1978) 144 Cal. Rptr. 672 RUBY RICHARD, Plaintiff and Respondent, v. LOIS CAROL SCOTT et al., Defendants and Appellants. Docket No. 17585. Court of Appeals of California, Fourth District, Division Two. March 24, 1978. *60 COUNSEL MacLachlan, Burford & Stanfield and Gerald M. Stanfield for Defendants and Appellants. Olen G. Miller and Mark L. Gunn for Plaintiff and Respondent....
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*101 Opinion Petitioner Jerold Goddard (hereinafter Petitioner) appeals from a judgment by the superior court denying his petition for a writ of mandate. Petitioner sought a writ directing respondents South Bay Union High School District (hereinafter District) and the Governing Board of the South Bay Union High School District (hereinafter Board) to compensate him for all salary ...
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Opinion Plaintiff Marc Mikialian and plaintiff-in-intervention CNA Casualty of California appeal from a judgment of nonsuit in favor of defendants and defendants-in-intervention City of Los Angeles, Bruce Watkins, A. Castro, and Thomas R. Whetzel. 1 Plaintiff’s complaint sought damages for personal injury sustained by him when he was struck by a hit-and-run driver while attem...
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*215 Opinion Petitioner, Raymond A. Cadena, seeks a writ of mandate to compel respondent Superior Court of Los Angeles County to grant discovery as requested of certain records of law enforcement agencies. Petitioner is charged by information with assault with a deadly weapon (Pen. Code, § 245, subd. (b)) on a peace officer, Leonard Kolb, on February 20, 1977. According to p...
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Cecelia L. Franklin, born November 29, 1938, sustained a cumulative trauma injury to her heart, arising out of and occurring in the course of her employment from January 2, 1957, through November 17, 1973, while employed as a registered nurse and attendant by the County of Los Angeles/University of Southern California Medical Center (County). Franklin sustained a myocardial infarct on November ...
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*262Opinion Petitioner seeks a writ of mandate to compel respondent court to grant petitioner’s demurrer (Pen. Code, § 1004) to count I of a pending information, on the grounds the information fails to state a public offense and fails to comply with Penal Code sections 950-952. We issued an alternative writ and temporarily stayed the proceedings. Count I of the information charges petitioner with ...
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Opinion This appeal is from a judgment of the superior court, entered pursuant to Code of Civil Procedure, section 1094.5, ordering the issuance of a peremptory writ of mandate directing the Board of Medical *297 Examiners of the State of California (Board) 1 to set aside its decision revoking the license of Dr. Seymour Matanky (Matanky), and to reconsider the same in light of the court’s f...
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Opinion —This is an appeal taken from a judgment entered upon a jury verdict in favor of plaintiff. The action is one for damages for personal injuries suffered as a result of an automobile accident on September 22, 1971. The case was tried subsequent to Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393], wherein the Supreme...
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*374Opinion —The Director of the Department of Alcoholic Beverage Control seeks review of an order of respondent Alcoholic Beverage Control Appeals Board which reversed a decision of the department denying an application by real party Anthony V. Machiano for issuance of an on-sale beer and wine license. On November 4, 1976, Machiano applied for a license for a restaurant which he planned to open ...
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Opinion Plaintiffs, Ronald P. Baldwin and Travis E. Reed, Jr., appeal from the judgment of dismissal under Code of Civil Procedure section 581, subdivision 3, after demurrers to their multicount second amended complaint had been sustained without leave to amend. *400 Alleged Facts The second amended complaint is a six-count action in which plaintiffs seek damages for a ...
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Opinion Harriet Levy appeals from a judgment denying a writ to compel respondent San Francisco Unified School District to recognize appellant as a permanent employee and pay her for such service. Appellant was first employed by respondent district in the fall of 1969 as a day-to-day substitute, filling in for teachers at several schools in the district. Effective February 16, 1970, through June 30...
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*959 Opinion Plaintiff Adams recovered a jury verdict of $35,000 against defendants Cerritos Trucking Company, Inc. (Cerritos), Ronald Fredericksen, 1 and their codefendant Deborah Thompson. Judgment was entered thereon against all defendants. Cerritos cross-complained in the same action against Thompson for property damage. 2 The jury i having determined the percentage liability of Adams...
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Opinion In this eminent domain proceeding, defendant appeals from a 1 for $9,935 entered against him and in favor of plaintiff following the granting of plaintiff’s motion for reimbursement pursuant to former Code of Civil Procedure section 1254, subdivision (g). 2 We affirm the judgment. In 1964, plaintiff commenced an action in eminent domain to acquire land f...
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Opinion In a jury trial, defendant was convicted as follows: Guilty on count I, which charged assault with a deadly weapon on Samuel Willis with intent to commit murder, in violation of section 217 of the Penal Code; on count II, which charged an assault with a deadly weapon on William Reid, guilty of possession of a deadly weapon with intent to commit an assault on William Reid, in violation of s...
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Opinion On December 14, 1976, in the Juvenile Court of Sutter County, a petition was filed alleging, in four counts, that *996the minor, David K., had committed several criminal offenses on December 12, 1976. On December 28, 1976, the minor admitted the allegations of count V of an amended petition which alleged the violation on the same date of an attempted robbery pursuant to Penal Code sections...
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Opinion The paternal grandfather of two minor children appeals from an order of the superior court which denied his request for temporary custody of the children, and instead awarded custody to their mother. We affirm the order. Hans Schwander (hereinafter father) and Gudrun Schwander (hereinafter mother) were divorced by a decree of the circuit court of Illinois entered December 11, 1975. Th...
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79 Cal.App.3d 1023 (1978) 145 Cal. Rptr. 419 In re ARLIN J. GATTS on Habeas Corpus. Docket No. 9752. Court of Appeals of California, Fourth District, Division Two. April 18, 1978. *1026 COUNSEL Charles E. Ward, Public Defender, and William R. Dole, Deputy Public Defender, for Petitioner. James M. Cramer, District Attorney, and Dennis S. Tilton, Deputy District Attorney, for Respondent. *1027 OPIN...
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Opinion Petitioner Union Mutual Life Insurance Company (hereafter referred to as Union Mutual) seeks a writ of prohibition to restrain respondent superior court from enforcing an order requiring response to certain interrogatories propounded during pretrial discovery. Union Mutual alleges that the interrogatories are irrelevant to the pending litigation and, in any event, are unduly burde...
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*18 Opinion Appellant was convicted by a jury of twelve counts of grand theft (Pen. Code, § 487, subd. 1) and was sentenced to state prison to serve the term prescribed by law, consecutively as to counts one, three and four. She was ordered to serve the sentence on counts two and five through twelve concurrently with the sentence served on count one. She appeals from the judgment. No complain...
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Opinion By his petition for habeas corpus petitioner seeks review of proceedings in which his parole was revoked and he was ordered returned to prison. He claims he was not afforded a revocation hearing that comported with due process of law because he was denied the right *26 to confront and cross-examine adverse witnesses. We conclude that his revocation hearing comported with due process o...
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Opinion Albert F. Secada petitions this court for a writ of habeas corpus to relieve him from what he contends is an erroneous computation of his minimum parole eligibility date. Secada was convicted of four narcotic offense counts: Counts (1) selling marijuana (Health & Saf. Code, § 11360); (2) selling controlled substances (Health & Saf. Code, § 11352); (3) possessing controlled substances for ...
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Opinion Defendant was charged with burglary, rape and oral copulation. His motions to dismiss the information and to suppress evidence were denied. After a jury trial, defendant was found guilty of all three counts and was sentenced to state prison. We have reviewed the contentions made on appeal and we affirm the judgment. After retiring to bed about 11 p.m. on December 1, 1975, Rob...
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80 Cal.App.3d 64 (1978) 145 Cal. Rptr. 555 G.B., Plaintiff and Appellant, v. JEROME A. LACKNER, as Director, etc., Defendant and Respondent. Docket No. 41363. Court of Appeals of California, First District, Division Three. April 20, 1978. *65 COUNSEL Paul R. Perdue, Patricia D. Lee and David C. Moon for Plaintiff and Appellant. Evelle J. Younger, Attorney General, Asher Rubin, and John Davidson, ...
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80 Cal.App.3d 90 (1978) 145 Cal. Rptr. 570 J.D., Plaintiff and Appellant, v. JEROME A. LACKNER, as Director, etc., Defendant and Respondent. Docket No. 42125. Court of Appeals of California, First District, Division Three. April 20, 1978. *92 COUNSEL Carl L. McConnell and Peter H. Reid for Plaintiff and Appellant. Evelle J. Younger, Attorney General, Asher Rubin and John Davidson, Deputy Attorney...
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Opinion Helen K. Copley and Joseph P. Kinney (trustees) sought probate court aid pursuant to Probate Code section 1138.1, subdivisions (a)(2) and (4), “to settle accounts of the trustees and for instructions” pertaining to an inter vivos trust established by decedent James S. Copley (grantor) during his lifetime. Janice Copley and Michael Copley (beneficiaries) moved to dismiss...
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This case is being reversed upon the tenuous ground that the jury was not instructed that to return a verdict of guilty it had to find defendant knew he was involved in the accident. There is no question that to find a person guilty of felony hit-and-run driving it is essential that the driver knows that he was involved in an accident. My disagreement comes with the conclusion of the principal opi...
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*143 Opinion Appellant 1 sought a writ of mandamus directing respondent Riggs, Registrar of Voters of the County of Alameda, to register himself and “all ex-felons currently on parole” (excluding those convicted of Elections Code felonies) otherwise qualified to vote. Upon respondent Riggs’ motion for compulsory joinder (Code Civ. Proc., § 389, subd. (a)), the trial court joined as parties ...
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80 Cal. App. 3d 158 (1978) 143 Cal. Rptr. 633 REDEVELOPMENT AGENCY OF THE CITY OF BERKELEY, Plaintiff and Respondent, v. CITY OF BERKELEY et al., Defendants and Respondents; OCEAN VIEW COMMITTEE, Intervener and Appellant. Docket No. 41183. Court of Appeals of California, First District, Division Four. April 21, 1978. *162 COUNSEL David Mundstock, Fred H. Altshuler and Stephen P. Berzon for Interv...
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Opinion Robert H. Stewart, a medical doctor, appeals from an order of the superior court granting a new trial on grounds of an error in law in a mandamus proceeding (Code Civ. Proc., § 1094.5) instituted by Dr. Stewart against the Board of Medical Quality Assurance, Department of Consumer Affairs, State of California (hereinafter referred to as the Board). The Case The chronolog...
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Opinion The State Controller appeals from a corrected Eugene Tivel, objector below, is, in equity, the duly adopted son of decedent, Lilya Sacco Reid. As such, he is entitled to treatment as a Class A transferee as defined in Revenue and Taxation Code section 13307.1 The Controller contends that Brian is a Class C transferee (stranger) as defined in section 13309 because he was not an adopted chi...
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*207 Opinion The City Council of the City of San Diego petitioned the superior court for a writ of mandamus against the city manager and the city auditor and comptroller seeking to compel the execution of an agreement with the landscape architectural firm of Wimmer, Yamada, Iwanaga & Associates (WYI). The agreement which had been approved by the city council called for the prepar...
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Opinion Lowell T. Carruth and the law partnership of which he is a member, McCormick, Barstow, Sheppard, Coyle & Wayte (MBSC&W), seek a writ of mandate to compel the San Diego County Superior Court to grant their motion for change of venue (Code Civ. Proc., § 400). In the underlying action, Roger D. Stoike real party in interest, seeks damages from petitioners for malicious prosecuti...
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Opinion Trudie Palmer appeals from a conviction of second degree murder, following a jury trial. We affirm the judgment. Police Officer Leo Plinski was dispatched by radio to appellant’s apartment. He had been dispatched in response to appellant’s telephone call reporting that someone had been shot. Appellant’s husband, Michael Palmer, was lying across the left side of the bed; ...
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Opinion The Osbornes (hereinafter plaintiff) as seller brought an action for damages for buyer’s refusal to purchase real property. The jury returned a verdict for defendant buyer, but the trial court granted plaintiff a new trial on the ground that the court had abused its discretion (1) by admonishing plaintiff and his counsel in front of the jury, and (2) by refusing to allow plaintiff on re...
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Opinion By information in case number A329292, Christopher Blouin and Lawrence Gray were charged, in count I, with grand theft of Joseph Gates’ automobile in violation of Penal Code section 487, subdivision 3, and, in count II, with receiving stolen property, a 1948 Chevrolet automobile, in violation of Penal Code section 496. 1 *272 In a second information in case number A333439, Blouin ...
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80 Cal. App. 3d 290 (1978) 145 Cal. Rptr. 489 THE PEOPLE, Plaintiff and Respondent, v. WALTER WAYNE GOODSON, Defendant and Appellant. Docket No. 27958. Court of Appeals of California, Second District, Division Five. April 24, 1978. *291 COUNSEL Joseph Shemaria for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assis...
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80 Cal.App.3d 297 (1978) 145 Cal. Rptr. 483 COUNTY OF SAN DIEGO, Plaintiff and Respondent, v. CHARLES BERNARD BROWN, JR., Defendant and Appellant. Docket No. 14819. Court of Appeals of California, Fourth District, Division One. April 24, 1978. *299 COUNSEL Geraldine M. Mele, Michael R. Valentine and Victor Harris for Defendant and Appellant. Edwin L. Miller, District Attorney, Peter C. Lehman and...
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Opinion Godfrey Lehman appeals from the judgment of dismissal following the sustaining of a demurrer by respondent City and County of San Francisco to his complaint, which alleges six causes of action against respondent for the separate violations under both state and federal law of his right to privacy, freedom of association and due process. 1 For the purpose of the present appeal responden...
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*Supp. 3Opinion We must determine whether, under the following undisputed facts, defendant made an illegal U-tum in violation of Vehicle Code section 22102.1 Defendant, southbound within a business district, made a left turn, crossed northbound lanes, entered into a driveway on the easterly side of the street, backed up to head northward, then proceeded in a northerly direction and parked at the e...
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Opinion The City of Ukiah (City) requires certain classes of its employees to reside within a so-called “residency area” which is peripheral to its territorial boundaries. Respondent, an affected employee, was dismissed from his position because he resided outside the area. He commenced this proceeding in administrative mandamus against the City, seeking reinstatement and reimbursement fo...
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Opinion Appellant Balliet Bros. Construction Corp., a general contractor, submitted a bid on a construction contract to be awarded by the University of California. The bid was accompanied by a “bid bond” in which appellant and a corporate surety obligated *323 themselves to the University in the penal sum of 10 percent of the amount bid. Appellant subsequently brought this ac...
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Opinion Although wife noticed her appeal from the interlocutory judgment of dissolution of marriage, only the portion thereof which awards to husband as his separate property his variable incentive pay is argued on appeal. Appellant wife and respondent husband were married August 28, 1971, and separated either March 31 or April 30, 1976. Husband commenced active duty as a physician, ...
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Opinion Plaintiff Emilio Mendez Cancino appeals from a judgment for defendant Farmers Insurance Group after a demurrer to his complaint was sustained without leave to amend. The complaint sought damages for a breach of the defendant’s obligation to deal with plaintiff fairly and in good faith in respect of his claim against it as an insured covered by the uninsured motorist provisions of ...
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Opinion Petitioner seeks a writ of prohibition directing respondent court to dismiss real party’s pending cause of action. The facts are these: On May 22, 1974, petitioner and real party in interest were parties to a collective bargaining agreement, one provision of which was that no strikes or work stoppages would occur during the term of the contract. On that date, real party in interest was en...
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*373Opinion Petitioners seek a writ of mandate directing respondent court to grant their motion for a change of venue to the Stanislaus County Superior Court. (Code Civ. Proc., § 400.) Real parties in interest filed an action for damages in the Superior Court of Merced County naming petitioners as defendants. The issue in this case is whether a trial court has the power to permit a moving party in...
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80 Cal. App. 3d 380 (1978) 145 Cal. Rptr. 716 In re the Marriage of ANN L. and JOHN K. BRIGDEN. ANN L. BRIGDEN, Appellant, v. JOHN K. BRIGDEN, Appellant. Docket No. 51112. Court of Appeals of California, Second District, Division Three. April 26, 1978. *383 COUNSEL Barrett, Stearns, Collins, Gleason & Kinney and William N. Willens for Appellant Wife. Ervin, Cohen & Jessup and Arthur Field...
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Opinion Petitioner, Ira G. Beaty, contends that an off-the-job accident is industrially related since it was the proximate result of a prior industrial injury. The appeals board held against Beaty. We annul the appeals board’s decision as the issues involved need further consideration by the appeals board in light of our opinion herein. *400 Facts Beaty while employed b...
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Opinion Maria Belkot Clark (Maria) and Perry Tudor Clark (Perry) were married for 16 years and 2 months and had 1 child, Christopher Belkot Clark born May 23, 1960. The parties separated on December 5, 1974, and Maria filed an action to dissolve the marriage. The trial was in July of 1975. The parties stipulated as to the value of each of the items of community property, and that custody of Chr...
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80 Cal. App. 3d 442 (1978) 145 Cal. Rptr. 599 ROBERT K. STONE, Plaintiff and Respondent, v. JOHN N. BACH, Defendant and Appellant. Docket No. 16338. Court of Appeals of California, Third District. April 26, 1978. *443 COUNSEL Ropers, Majeski, Kohn, Bentley & Wagner, Michael J. Brady, Clinton H. Coddington, Goldstein, Barceloux & Goldstein, Peters, Fuller, Rush, Schooling Luvaas, David R. ...
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Opinion This appeal is by an Oakland police officer who, after sustaining a gunshot wound to his right wrist while on duty, was mandatorily retired for disability on Februaiy 1, 1974. Two years later, the Oakland Police and Fire Retirement Board (hereinafter board) voted to reinstate him to active duty, thus terminating his right to receive his disability pension; this, although it w...
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Opinion Defendants, United California Bank (hereafter UCB), Samuel M. Cavnar, George Todt, and Robert Davies, each appeal from a judgment that (1) each of the named individuals be removed from any position each claims to hold with plaintiff, American Center for Education, Inc. (hereafter ACE), whether as director, member of executive committee, officer or employee, and (2) ACE have damage...
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*503 Opinion Defendant Procter & Gamble Manufacturing Company (hereinafter defendant) appeals from a judgment entered in favor of plaintiff Glen O. Arbaugh (plaintiff) and plaintiff-in-intervention Transport Indemnity Company (intervener). Plaintiff brought this action against defendant to recover damages for personal injuries he sustained at a warehouse owned by defendant w...
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Opinion Kenneth Cory, State Controller, appeals from an order fixing, after objections, the total inheritance tax payable by the *517beneficiaries of the estate of Winifred W. O’Donnell, also known as Mrs. Thomas A. O’Donnell, as $58,042.36. The appeal lies. (Prob. Code, § 1240.) The report of the inheritance tax appraiser set the tax due as $891,692.18. The trial court, however thereafter, sustai...
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Opinion On August 4, 1975, appellant entered a plea of guilty to a violation of Vehicle Code section 23102, subdivision (a) (driving a vehicle while under the influence of intoxicating liquor) in the Justice Court for the Marysville Judicial District of Yuba County. On January 29, 1976, she was charged with violating the same code section in the Municipal Court for the Fresno Judicial District, in...
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Opinion This is an appeal by defendant Vladimir Zatko from a judgment convicting him of violating section 4500 of the Penal Code, in that while serving a life sentence in state prison, he, with malice aforethought, assaulted a person who was not an inmate with a deadly weapon or instrument. Issues Presented 1. Did the trial court fail to determine if defendant was competent to act as his ow...
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80 Cal. App. 3d 553 (1978) 145 Cal. Rptr. 657 DEBORAH NAZAROFF, Petitioner, v. THE SUPERIOR COURT OF SANTA CRUZ COUNTY, Respondent; ROBERT BECKER et al., Real Parties in Interest. Docket No. 42014. Court of Appeals of California, First District, Division One. May 1, 1978. *557 COUNSEL Rodney R. Atchison and Robert F. Howell for Petitioner. No appearance for Respondent. Grunsky, Pybrum, Skemp &...
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Opinion Appellant pled guilty to attempted burglary (Pen. Code, §§ 665, 459). The court sentenced appellant to state prison, suspended execution of sentence and placed him on probation. As a condition of probation appellant was ordered to serve nine months county jail time. Appellant actually served 180 days of the required jail time before his early release. Subsequent to release, appellant ...
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*577 Opinion On December 23, 1970, plaintiff Ray Ellison (Ellison) filed an amended complaint against the City of San Buenaventura (City) and the Ventura Port District (District) for injunctive relief, specific performance, and damages. District owns and operates the Ventura Marina (Marina). Ellison owns property in the Ventura Keys Waterfront Homes subdivision (Keys) adjoining the Marina to ...
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Opinion Murder for hire. Defendant Willie Lee Henderson and Mabel Glenn were charged with the murder of Edgar Glenn, Mabel’s husband. The information alleged that the murder of Glenn was intentional and carried out by defendant pursuant to an agreement to accept valuable consideration for the act of murder. (Former Pen. Code, § 190.2, subd. (a).) Defendant’s trial was severed from Mabel’s...
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Opinion If a transferee is not a surviving spouse, ancestor or issue of the decedent, the transferee cannot gain the most preferred inheritance tax status, unless the decedent stood in the “mutually acknowledged relationship of a parent” to the transferee. This case asks whether this relationship was established where the transferee was not related by *601blood or marriage and never lived in the ...
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Opinion Petition for writ of mandate to require respondent court to vacate its order denying a petition to require the Coastal Commission to *608 issue an exemption from the California Coastal Act of 1976, and enter a new and different order granting said petition. We granted an alternative writ. Facts This petition involves an apparent conflict between Public Resources Code sections 3080...
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Opinion This appeal is concerned with the attempted rescission of an assigned risk automobile liability policy allegedly obtained through misrepresentation. Employer’s Casualty Company notified its insured, Alfred S. Escobedo, following an accident in which Escobedo was involved, that as of the date of its original issuance it was rescinding, pursuant to section 331 of the Insurance ...
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*625 Opinion Petitioners, Karen Ann Steffen and Lisa Lynn Grow, seek a writ of mandate directing respondent Municipal Court, Central Judicial District of San Mateo County, to grant their motions for change of venue. Petitioner Steffen is charged with a violation of Penal Code section 647, subdivision (b), soliciting an act of prostitution, allegedly occurring on September 8, 1977, and petit...
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*633 Opinion On February 25, 1975, June Leib (respondent) after an approximate 15-year marriage, pursuant to her petition, received a dissolution judgment of her marriage to Arnold Leib. By the terms thereof, June was awarded custody of Paul, bom in 1962; $250 per month plus extras for his support; her one-half of the community property; $500 per month spousal support until her remarriage, th...
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80 Cal.App.3d 645 (1978) 145 Cal. Rptr. 778 117 SALES CORPORATION, Plaintiff and Appellant, v. JOANN OLSEN, Defendant and Respondent. Docket No. 14987. Court of Appeals of California, Fourth District, Division One. May 4, 1978. *647 COUNSEL Richard I. Singer and Keith L. Meeker for Plaintiff and Appellant. Brian D. Monaghan for Defendant and Respondent. OPINION STANIFORTH, J. JoAnn Olsen filed a ...
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Opinion We issued an alternative writ of mandate on application of the People in order to review an order of the superior court suppressing evidence of (1) a statement made by Kenneth Wayne Tunch and (2) certain physical evidence, an automobile owned by him. The order was based on the superior court’s determination that Tunch’s Miranda (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 6...
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Opinion This is a petition for habeas corpus and an appeal from a judgment of conviction entered on jury verdicts finding petitioner and defendant Juan Vallejo Corona (hereafter appellant or Corona) guilty of 25 counts of first degree murder. 1 The prosecution and conviction at bench grew out of the killing of 25 migratory farmworkers who died during a time frame of Februaiy-May, 1971. The ...
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Opinion This is a classic hornbook case. Concepts of easements “appurtenant” or “in gross,” and “dominant” versus “servient” tenements, which were mystifying in law school, the bane of bar examinations, and buried during long legal and judicial careers, now surface. A [appellant] owner of Blackacre since 1976, seeks to subdivide his 16-acre parcel and obtain access by a road across W...
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Opinion In this case we hold that in a prosecution under Penal Code section 288 hearsay státements of a child too young to testify may be admitted into evidence if they come within the category of spontaneous declarations or recent complaints. We also hold that the admission of such evidence does not violate defendant’s constitutional right to confrontation. Charged with child molestation (Pe...
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Opinion Defendants-appellants Cooksey, Battersby & MacBeth, a corporation (hereafter referred to as C, B & M), and Peter Donovan, appeal from a judgment in Santa Clara County Superior Court following a juiy verdict in favor of plaintiff-respondent Tri-Delta Engineering, Inc. (hereafter referred to as respondent) in an action brought by respondent against appellants and Insurance Company o...
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Opinion The parties are before us on a writ of mandate and/or prohibition. M. Lowenstein & Sons, Inc., the petitioner, seeks to overturn a procedural determination by the trial court. The court’s order had denied petitioner’s motion to quash service and alternatively to dismiss the complaint. Three basic issues are raised; First, may petitioner (a defendant) be served by mail ...
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Opinion I A major purpose of the Political Reform Act of 1974 (hereinafter the Act) 1 is that “Receipts and expenditures in election campaigns should be *774 fully and truthfully disclosed in order that the voters may be fully informed and improper practices may be inhibited.” (Gov. Code, § 81002, subd. (a).) 2 (See Socialist Workers etc. Comm...
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*781 Opinion All persons convicted of felony oífenses are entitled to credit for time spent in custody prior to the commencement of their prison sentence. (Pen. Code, § 2900.5, subd. 1 The question raised by this petition for habeas corpus relief is whether a defendant is entitled to receive credit upon a prison sentence for the period of jail time spent awaiting disposition of the criminal...
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Opinion John C., a minor, appeals from an order of the Superior Court of Los Angeles County sitting as a juvenile court adjudicating him a ward of the court and committing- him to the California Youth Authority. We reverse the order. *817 In an amended petition filed by the District Attorney in the Juvenile Court, it was alleged that appellant came within the provisions of s...
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Opinion Plaintiff appeals from order of dismissal entered on motion for judgment on the pleadings. Raised is the question whether the dismissal of a former proceeding for failure to prosecute (Code Civ. Proc., § 583, subd. (a)) constitutes a favorable termination of the *825 proceeding for the purpose of stating a cause of action for malicious prosecution. In accord with the settled rule, w...
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Opinion A jury found defendant guilty 1 of forcible rape of Tianne H. (§ 261, subd. 3, Pen. Code) and that he acted in concert with another in violation of section 264.1, Penal Code (count I); forcing Tianne, a child under the age of 14 years and more than 10 years younger than he, to orally copulate him (§ 288a, subd. (c), Pen. Code) and that he acted in concert with another in violation of ...
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Opinion The principal issue in this case is whether an innocent buyer of personal property which turns out to have been stolen can recover as damages, from a seller, attorney’s fees incurred in defending himself against criminal charges arising out of possession of the stolen property. We hold that he can and affirm the judgment below. Respondent purchased a hand gun from appellant, a properly li...
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Opinion Appellant was convicted by jury of misdemeanor battery (Pen. Code, § 242) and with brandishing a firearm (Pen. Code, § 417, subd. (a)). In a separate court trial, he was convicted of having a revolver in his possession after having been previously convicted of a felony (Pen. Code, § 12021, subd. (a), charged as a misdemeanor). He appeals from the order granting probation. Facts In 1943, w...
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Opinion We are called upon to determine the effect of an order declaring minor children free from custody and control of a parent (Civ. Code, § 232) upon that parent’s obligation to support the children. Appellant Pamela L. O’Connell was the petitioner in a dissolution proceeding against respondent James E. O’Connell. She appeals from an order of the trial court terminating the child support pa...
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Opinion The trial court denied appellant, a developmentally disabled person, a jury trial. Thus, this appeal raises the question whether such a person is entitled to a jury trial upon request in a commitment proceeding pursuant to Health and Safety Code sections 38009.1 and 38009.2.1 We conclude that these persons are so entitled even though there is no express statutory provis...
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*866 Opinion The owners, Orpheum Building Company (Orpheum) and their lessee, Northcoast Theatres Corporation (Northcoast), appeal from an adverse judgment after a bifurcated trial of their complaint against Bay Area Rapid Transit District (BART) alleging causes of action for inverse condemnation, nuisance, trespass and third party beneficiary. On the bifurcated cause of action f...
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Opinion This is an appeal by the People from an order granting defendant Hill’s motion to set aside an information pursuant to Penal Code section 995. The issue arises out of an arrest of the defendant and a search and seizure of contraband occurring on November 22, 1976. On that date, Police Officer Ronald J. Gilbert, a narcotics officer of the Los Angeles Police Department, with two fellow offic...
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Opinion On this appeal we are asked to determine whether a comprehensive general liability insurance policy issued to a general contractor covers a claim for damages by a home owner against the contractor for the contractor’s failure to construct the home in a workmanlike manner. Under the facts of this case, we conclude that it does not. Plaintiff, St. Paul Fire and Marine Insurance...
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Opinion John Thrash appeals an order revoking his probation which was granted following his plea of guilty to one count of receiving stolen property (Pen. Code, § 496, subd. 1). After the plea, the court dismissed two counts of receiving stolen property and three counts of burglary (Pen. Code, § 459). The court granted a certificate of probable cause (Pen. Code, § 1237.5), following reinstateme...
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Opinion Appellant, a 16-year-old juvenile at the time of the commission of the alleged offense, has appealed (Welf. & Inst. Code, § 800) from an order assuming jurisdiction and declaring him to be a person described in section 602 of the Welfare and Institutions Code. It was charged and found that he violated the provisions of section 653g of the Penal Code in that he did wilfully and unlawfully ...
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Opinion Recent years have witnessed an accelerated public consciousness of the people’s right to information about the conduct of their business by public officials, and of the people’s right to privacy. An expression of the people’s right to information will be found in California’s Public Records Act (hereafter the Act) found in Government *915Code sections 6250-6261. There the Legislature reaff...
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80 Cal. App. 3d 920 (1978) 145 Cal. Rptr. 922 AETNA LIFE INSURANCE COMPANY, Plaintiff, v. FLORA PRIMOFIORE et al., Defendants and Appellants; DINO PRIMOFIORE et al., Defendants and Respondents. Docket No. 40040. Court of Appeals of California, First District, Division Two. May 16, 1978. *921 COUNSEL Frederick L. Hilger for Defendants and Appellants. Robert R. Elledge for Defendants and Respondent...
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Opinion Petitioner FNB Financial Company (Finance Company) brought an action for breach of contract against Kawai Piano *929(America) Corporation (Kawai), and sought to attach Kawai’s inventory and business equipment. The trial court denied the attachment, concluding that because Finance Company was a secured creditor it had failed to establish its eligibility to attach. We issued an alternative ...
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80 Cal. App. 3d 932 (1978) 146 Cal. Rptr. 35 DAVID PEREZ MORENO, Petitioner, v. THE SUPERIOR COURT OF MERCED COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. 3887. Court of Appeals of California, Fifth District. May 15, 1978. *933 COUNSEL Allen, Van Winkle & Ivey and Michael L. Mason for Petitioner. No appearance for Respondent. Evelle J. Younger, Attorney General, Jack R. W...
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80 Cal.App.3d 952 (1978) 146 Cal. Rptr. 37 BARBARA HUGHES, Plaintiff and Appellant, v. ROGER NETH, as Chief of Police, etc., Defendant and Respondent. Docket No. 19514. Court of Appeals of California, Fourth District, Division Two. May 16, 1978. *954 COUNSEL Timothy J. Lee for Plaintiff and Appellant. R.R. Campagna, City Attorney, and Mark J. Huebsch, Deputy City Attorney, for Defendant and Respo...
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80 Cal. App. 3d 961 (1978) 146 Cal. Rptr. 75 AMERIGO ORSETTI, Plaintiff and Appellant, v. CITY OF FREMONT et al., Defendants and Respondents. Docket No. 41185. Court of Appeals of California, First District, Division Two. April 26, 1978. *963 COUNSEL Brunn, Leighton, Miller & Rinehart and Gary R. Rinehart for Plaintiff and Appellant. Allen E. Sprague, City Attorney, Theodore R. Bresler, Assis...
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Opinion Defendant was convicted by a verdict of the jury finding him guilty of a violation of Penal Code section 192, subdivision 3(a) (count I: felony vehicular manslaughter) and Vehicle Code section 23101, subdivision (a) (count II: felony drunk driving). On appeal from the judgment entered imposing concurrent sentences to state prison, defendant claims error resulting from multiple convictions ...
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80 Cal.App.3d 981 (1978) 146 Cal. Rptr. 129 THE PEOPLE, Plaintiff and Respondent, v. JOSEPH DAGNINO, JR., et al., Defendants and Appellants. Docket No. 16452. Court of Appeals of California, First District, Division One. May 18, 1978. *983 COUNSEL Kenneth F. Coho and Paul N. Halvonik, State Public Defender, under appointments by the Court of Appeal, Clifton R. Jeffers, Chief Assistant State Publi...
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Opinion This is an appeal by County of Ventura, (Ventura), cross-complainant and appellant, from a summary judgment dismissing its cross-complaint against the City of Camarillo (Camarillo), cross-defendant and respondent. On November 7, 1974, after dark, plaintiff John Larsen was a passenger in a vehicle operated by Joel Capps, who was driving northbound on Springville Road located i...
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80 Cal. App. 3d 1049 (1978) 144 Cal. Rptr. 351 CITY OF LOS ALTOS, Plaintiff and Respondent, v. BOARD OF ADMINISTRATION, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Defendant and Appellant. Docket No. 41050. Court of Appeals of California, First District, Division One. April 20, 1978. *1050 COUNSEL Evelle J. Younger, Attorney General, and Richard L. Mayers, Deputy Attorney General, for Defendant and Appe...
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81 Cal.App.3d 11 (1978) 146 Cal. Rptr. 118 THE PEOPLE, Plaintiff and Appellant, v. RONALD THOMAS MORELAND, Defendant and Respondent. Docket No. 3099. Court of Appeals of California, Fifth District. May 17, 1978. *14 COUNSEL Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Eddie T. Keller and Gary A. Binkerd, Dep...
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Opinion His motions to suppress evidence and to reveal the identity of an informer having been denied, defendant, Delores Barkins, entered his guilty plea to a charge of possession of heroin for the purpose of sale. On this appeal from the resulting judgment, he contends: (1) a search which disclosed the heroin is invalid because a consent to search imposed as a condition of probation in a prio...
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81 Cal.App.3d 34 (1978) 146 Cal. Rptr. 146 VIRGINIA L. FRANTZ, Plaintiff and Respondent, v. SAN LUIS MEDICAL CLINIC et al., Defendants and Appellants. Docket No. 50180. Court of Appeals of California, Second District, Division Four. May 18, 1978. *36 COUNSEL Dale D. Billips, Horvitz, Greines & Horowitz, Ellis J. Horvitz, Donald L.A. Kerson, Hoge, Felton, Jones & Appel, Paul Coffee and Raymond E. ...
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Opinion Procedural Facts Covina-Azusa Fire Fighters Union, Local 2415 (union), has appealed from a judgment denying its petition for writ of mandate. Union sought to compel the City of Azusa (city) to recognize a particular form of public employee bargaining unit. Petitioner alleged that the city failed to follow the requirements of the Meyers-Milias-Brown Act (MMB Act) (Gov. Code, §...
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I dissent. The majority rejects petitioner’s contention that the penalty of dismissal was so severe as to constitute an abuse of discretion by the chief of police, the terminating officer. I consider the contention meritorious and sufficient to mandate a reversal of the judgment. It is true that the petitioner was in the process of serving a 12-month term as a probationary officer. He had complete...
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Opinion The County of Orange, real party in interest herein (hereinafter referred to as County), filed a complaint in the Superior Court of Orange County against Michael Anthony Dórame, petitioner herein, seeking reimbursement of public assistance and establishment of child support. Petitioner moved for a change of venue on the ground that the County had brought the action in plaintiff county a...
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Opinion We here consider the issue of application of proceeds from fire insurance under the terms of a deed of trust as between the trustor and the beneficiaiy. We hold that the right of a beneficiary to apply insurance proceeds to the balance of a note secured by a deed of trust must be performed in good faith and with fair dealing and that to the extent the security is not impaired the...
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Opinion Respondent herein was convicted after a jury trial of violating Penal Code sections 12303 (possessing a bomb) and 12303.3 (recklessly possessing a destructive device in a public building). Although count 2 provides for greater punishment (both under the determinate sentencing law and the indeterminate sentencing law), the trial court stayed execution of the sentence as to count 2 ...
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81 Cal.App.3d 90 (1978) 146 Cal. Rptr. 171 JEAN LOHMAN, Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; WILLIAM O. WEISSICH et al., Real Parties in Interest. Docket No. 42269. Court of Appeals of California, First District, Division Three. May 22, 1978. *92 COUNSEL McCready & Doyle, James E. McCready and John Doyle for Petitioner. No appearance for Respondent. Ericksen, Lynch...
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Opinion Defendant, Jose Luis Lopez, appeals from a judgment entered after conviction of a violation of section 11350 of the Health and Safety Code. *106 The facts are not in dispute. The police were called by Gloria Garza at about 2 a.m., August 3, 1976, with a report of a possible burglary at the house next door, which was the residence of Mrs. Garza’s aunt. She had been as...
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81 Cal.App.3d 113 (1978) 144 Cal. Rptr. 350 MARGARET GLENN COATE, Individually and as Executrix, etc., Petitioner, v. THE SUPERIOR COURT OF MARIN COUNTY, Respondent; MARIA E. WOODS et al., Real Parties in Interest. Docket No. 42999. Court of Appeals of California, First District, Division Two. May 23, 1978. *114 COUNSEL Zang, Friedman & Damir, Robert E. Zang and Anthony P. David for Petitioner. N...
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Opinion Defendants, E. A. and Geraldine Metcalf, appeal from an order which granted plaintiff’s motion to tax defendants’ costs, thereby disallowing a substantial portion of the attorney’s fees claimed by defendants. *4Defendants base their appeal upon an agreed statement. The facts are that on July 20, 1971, plaintiff, State of California, commenced an eminent domain action to take certain real ...
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Opinion The sole issue on this appeal is whether appellant is entitled to credit upon his sentence for 78 days which he spent in Delancey Street Foundation as a condition of probation. We hold that Penal Code section 2900.5 mandates that such credit be given. Appellant entered a plea of guilty to violation of Penal Code section 12021. On April 14, 1976, the court granted him three years proba...
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Opinion Defendant was charged with receiving stolen property, in violation of section 496 of the Penal Code. After his motion to suppress evidence, brought under section 1538.5 of the Penal Code, was denied, he pled guilty and was sentenced to state prison. He has appealed; we affirm. Defendant’s guilt was shown by items discovered in his apartment in the course of a search, conducted under t...
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*53 Opinion We have reviewed respondent Hairrell’s request for attorney fees and conclude it should be granted. 1 There was no reasonable basis for the petition because it prematurely raised issues which had not been presented to the Workers’ Compensation Appeals Board (Board) by petition for reconsideration. Labor Code section 5801 provides in pertinent part: “In the event the injured em...
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Opinion Defendants City of Los Angeles and City of Glendale appeal from a judgment based on breach of an easement agreement for damages in the amount of approximately $32,000. Plaintiff purchased a piece of real property at 4570 Colorado Boulevard in the City of Los Angeles. He desired to construct a manufacturing facility, warehouse, and offices on it. The property was previously us...
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79 Cal.App.3d 167 (1978) 144 Cal. Rptr. 724 DOROTHY KELLEY DEPENBROK, Plaintiff and Respondent, v. KAISER FOUNDATION HEALTH PLAN, INC., et al., Defendants and Appellants. Docket No. 50561. Court of Appeals of California, Second District, Division Four. March 28, 1978. *169 COUNSEL Thelen, Marrin, Johnson & Bridges, Robert K. Worrell and Susan H. Schmid for Defendants and Appellants. Roger Ben...
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*179 Opinion This is an appeal by defendant from a conviction of the crimes of (1) child molestation, in violation of Penal Code section 647a, and (2) an attempted lewd or lascivious act upon the body of a child under 14 years of age, in violation of Penal Code sections 664 and 288. The two offenses were alleged in a two-count information which also alleged that defendant had bee...
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Opinion In this Placer County Superior Court action to quiet title to two parcels of real property which had been subjected to federal “nominee” tax liens, plaintiffs’ motion for summary judgment decreeing the liens to be invalid as a matter of law was granted. This appeal followed. On May 27, 1974, penalties were assessed against James P. Baldassari, Sr. (hereafter sometimes referre...
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Opinion Welfare and Institutions Code (hereafter W&I Code) section 12300 et seq. provide that recipients of public welfare who can remain in their own homes, and whose ability to take care of themselves is “severely impaired,” are eligible for certain homemaking services. They are entitled only to such services as are found reasonably necessary by the county welfare agency’s “determinatio...
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Opinion —Plaintiff-appellant Val Jean Barone (hereafter appellant) appeals from a judgment in Santa Clara County Superior Court in favor of defendant-respondent City of San Jose (hereafter the City) following the court’s order granting the City’s motion for summary judgment in appellant’s action for personal injuries sustained when she fell on a public sidewalk. On February 11, 1976,...
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Opinion Statement Of The Case And Facts In May 1973 appellants John and Claire Meyers borrowed $20,000 from respondent Guarantee Savings and Loan Association. The terms and conditions of the loan were contained in a building loan agreement. The loan was secured by a deed of trust. In addition, appellants signed an authorization to disburse and acknowledged receipt of copies of Penal ...
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Opinion The trial court sustained, without leave to amend, a general demurrer to plaintiff’s first amended complaint. The complaint is based upon an alleged erroneous survey made pursuant to the order of the court and “the agreement of the parties” by Tevco, acting by and through defendant Roecker, in a previous action in superior court captioned Russell R. Ford v. Emma J. Kingsbuiy, No. 2108...
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*322 Opinion —Stephen Douglas Browning has appealed from a judgment of imprisonment which was rendered after a jury found him guilty of second degree murder. (Pen. Code, § 187.) The cause has not been briefed. Appellant has moved for summary reversal of the judgment. The motion appeared to have merit. Because a judgment in a criminal case “can be reversed only after argument, . . .” (Pen. Cod...
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Opinion —Respondent City of Oakland (the City) has installed and uses automobile parking meters on its public streets. In this action brought against it by appellant S. Owen Siegel, he seeks certain relief based upon his contention that the meters are being maintained in violation of law. He appeals from a judgment of dismissal entered upon an order sustaining the City’s general demurrer ...
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Opinion —Petition charging the minor with receiving stolen property (Luger pistol) in violation of section 496, Penal Code, was sustained. He appeals from order of commitment, and raises two issues (1) insufficiency of the evidence to support findings that he had possession of the gun and that he knew the same to be stolen and (2) admissibility of statements made to his parole officer in the ab...
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Opinion This is an appeal by a life beneficiary, Sue Ann Brown (Brown), from an order of the probate court of the Los Angeles Superior Court settling the account of a testamentary trustee and permitting the trustee to pay itself fees in advance of approval by the court. The appeal 1 Facts Brown is one of several income beneficiaries of a trust established by the will of Edna Miles Gilfillan, dece...
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Opinion Plaintiffs, Sierra Terreno, etc., Cal-Pacific Resources, Inc., and Walter E. Bloom, et al., brought separate actions for inverse condemnation against the Tahoe Regional Planning Agency (TRPA). Plaintiffs owned real property situated in El Dorado County which previously had been zoned, assessed and valued for primarily industrial and commercial uses. The TRPA adopted a land use ordinance an...
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Opinion Paul Sherod Bailey’s petition for a writ of mandate presents the issue of whether Code of Civil Procedure sections 2031 and 2034 authorize an order compelling a party litigant to reenact an accident so that the adverse party may make a motion picture of the reenactment. *446Petitioner Bailey filed a personal injury complaint against real parties, Sears, Roebuck & Company and Emerson Elect...
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Opinion Respondent court stayed an unlawful detainer action (Mobil Oil Corporation v. Joseph Ysais) pending determination of a prior action brought by Ysais, the lessee (defendant in the unlawful detainer action) which seeks to establish his right to continue operation of a service station upon the leased premises. Petition for writ of mandate was filed by Mobil, and we issued an alternat...
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Opinion Plaintiff, Marjorie A. Petherbridge, initiated this suit as a class action against Prudential Savings and Loan Association and 37 other savings and loan associations to recover earnings realized by defendants from use of moneys paid to them as impounds (i.e., monthly payments to cover real property taxes and hazard insurance premiums). A judgment dismissing the action as to all of...
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Opinion The San Francisco Unified School District had a class of employees, other than teachers, whose work assignments did not cover the summer, Christmas, and Easter school vacation periods. During those periods such employees were in a “nonpay status,” but they were not separated from the school service, nor were they rehired as new employees when school resumed. They were “never terminated in ...
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Opinion Appellants have appealed their convictions of possession of over one-half ounce of heroin on the ground that the identity of an informant was improperly withheld and that a search warrant had become stale. On January 23, 1976, an Oakland police officer, Gary Haywood, obtained a search warrant authorizing the search of the person of Dorothy McCarthy and the premises of 866 30th Street,...
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Opinion Appellants are an employee organization and various teachers who sought a writ of mandate to compel respondents school district and board of education to reemploy the teachers for the 1976-1977 school year. The trial court denied the petition as to all appellants. The matter was submitted to the trial court upon the verified pleadings and exhibits and depositions. No findings of fact ...
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Opinion Plaintiff Knox appeals from the trial court’s dismissal of his third amended complaint without leave to amend. The action was brought against defendants Streatfield, et al., for damages for and injunctive relief for alleged violations of a declaration of restrictions of the Malibu Bay Club. The action purports to be a class action. *568 Facts Plaintiff Harvey Kn...
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Opinion Plaintiff, Rich-Lee Equipment Rentals, Inc., appeals from a judgment in favor of defendant Broadmoor Homes, Inc., on a cause of action for breach of contract, and in favor of defendant First Management Corporation, on causes of action seeking foreclosure of a mechanic’s lien and enforcement of a stop notice. 1 Mechanic’s Lien and Stop Notice The facts pertinent to the mechanic’s...
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Opinion Plaintiffs have appealed from an order and judgment granting the motion for summary judgment of defendant insurer and awarding the defendant its costs and disbursements. Plaintiffs allegedly suffered injuries as a result of a collision in Mexico involving the Robles’ Volkswagen bus and an alleged hit and run uninsured motorist. The policy did not cover travel in Mexico. Plaintiffs...
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*618 Opinion This case is before us pursuant to our issuance of a writ of review to consider the finding of the Workers’ Compensation Appeals Board that American Smelting & Refining Co. committed serious and wilful misconduct within the meaning of Labor Code section 4553 1 so as to result in the injury of applicant, Robert Rael. The award in favor of applicant increase...
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79 Cal.App.3d 624 (1978) 145 Cal. Rptr. 122 Adoption of MARIE R., a Minor. RONALD K. et al., Petitioners and Appellants, v. CHARLES K., Claimant and Respondent; SCOTT R., et al., Claimants and Appellants. Docket No. 50638. Court of Appeals of California, Second District, Division Four. April 10, 1978. *625 COUNSEL Elaine B. Fischel for Petitioners and Appellants. David Keene Leavitt for Claimants...
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Opinion In a nine-count amended information, defendant Maxie Brown, Jr. and codefendant David Nolan Rollins were charged with the following offenses: in count I Rollins was charged with the commission of a robbery on August 20, 1975, in violation of Penal Code section 211. It was alleged that he used a firearm, namely, a rifle, during the commission of the offense. In count II, it was alleged that...
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Opinion Petitioner, Board of Trustees of the Leland Stanford Junior University (Stanford), seeks a peremptory writ of mandate to compel respondents, State Controller and State Treasurer, to pay petitioner’s claim for state funds pursuant to former Education Code sections 31285.1 to 31285.4, now sections 69790 to 69793. Section 69790 is a declaration by the Legislature that the furthe...
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Opinion Colleen Shockley was charged with murder of her son James on April 13, 1974 (count one; Pen. Code, § 187), willful cruelty toward and endangering her sons James and Timothy on April 13, 1974 (counts two and three; Pen. Code, § 273a, subd. (1)), willful cruelty toward and endangering Timothy between August 1, 1975 and November 18, 1975 (count four; Pen. Code, § 273a, subd. (1)), and infl...
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Opinion Pursuant to California Water Code section 2525, the City of Capitola, located in Santa Cruz County, California, filed a petition with the State Water Resources Control Board (hereinafter referred to as the Board) requesting a determination of the rights of various claimants to the waters of the Soquel Creek Stream System. The Board found that the public interest and necessity would be ser...
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Opinion Appellant State of California sought by eminent domain proceedings to condemn respondents’ property for public use as a park, The issue on appeal is whether the court erred when it excluded testimony as to the regulations and policies of the coastal commission in determining the value of respondents’ property, and in instructing the jury to disregard the effect on the value of th...
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Opinion Plaintiff appeals from judgment in an action for declaratory relief and frames this question: When an employer’s workers’ compensation insurer files a complaint in intervention in the *703 employee’s action against a third party tortfeasor and does no more, and the employee’s attorney is solely responsible for effecting a settlement of the action out of which the insu...
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Opinion This mandamus proceeding was brought in the superior court to review a decision of the State Department of Health suspending petitioner, a licensed optometrist, from participating in the California Medical Assistance Program (Medi-Cal) for a period of one year. The issues argued on this appeal relate only to the legality of an inspection of petitioner’s records which led to the d...
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*721Opinion Rosemary W. appeals from a judgment made November 2, 1976, declaring her two sons to be dependent children of the court pursuant to Welfare and Institutions Code section 600, subdivisions (a) and (d) (now Welf. & Inst. Code, § 300, subds. (a) and (d)), and determining that custody should be given to someone other than a parent. The legal issue requiring discussion is the admissibility...
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Opinion Sieglinde A. Smith (wife) appeals from portions of an interlocutory judgment of dissolution of marriage entered September 2, 1976. Wayde W. Smith, petitioner below and respondent on appeal, will be referred to as husband. When they separated on April 1, 1975, the parties had been married 19 years and approximately 2 months. Wife was then 43 years old; husband was 44. The parties had two s...
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Opinion This is an appeal by defendant and appellant Hensel Phelps Construction Company from a judgment entered after a jury verdict was returned in favor of plaintiff and respondent Russell LaCount for damages sustained as a result of personal injuries he received on February 16, 1972, at Ben C. Gerwick Company construction yard in Petaluma, 1 Appellant presents us with thre...
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Opinion This is an appeal from a judgment ordering enforcement of a South Dakota libel judgment of $100,000 taken against appellant after his default in the South Dakota action. The appeal before us is on an extremely abbreviated record. Neither party requested that the oral proceedings, if any, be transcribed. All we have before us is the clerk’s transcript which contains all of the pleading...
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Opinion Defendant, James N. Litteral, appeals his conviction for second degree burglary. San Rafael Police Officer Fahy, while on patrol, saw and recognized codefendant Hickey and Gordon West on Second Street in the late evening hours of January 25, 1976. Officer Fahy parked his patrol car near an open convenience store, anticipating the arrival of Hickey and *793 West in that area. When th...
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Opinion Valerie Knapp, defendant in a personal injury case, seeks a writ of mandate after respondent court denied her motion to dismiss the action pursuant to Code of Civil Procedure section 581a, subdivision 1 on the ground that plaintiffs (real parties in interest herein) had failed to return the summons within three years. Facts Real parties filed the complaint on May 3, 1974, and served petiti...
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Opinion Defendant was convicted of four counts of sexually molesting Jana and Gina. He was acquitted of five similar counts against other children. In count I, he was convicted of violation of Penal Code section 288 against Jana on or about July 2, 1976. In count II, he was convicted of violation of Penal Code section 288a against Jana on or about July 2, 1976. In count III, he was convicted ...
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Opinion Defendant Lee Roy Castellano has appealed from a judgment imposing a prison sentence after a jury found him guilty of first degree robbery (Pen. Code, § 211), and found he had used a firearm in the commission of the robbery within the meaning of Penal Code section 12022.5. Castellano admitted five of seven charged prior felonies; the other two were dismissed by the district a...
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Opinion Plaintiff Home Indemnity Company (Home) appeals from an adverse judgment entered in its action for declaratory relief. Home’s *866 insured, defendant Leo L. Davis, Inc. (Davis), 1 had been held liable in damages to defendants Redding Constructors, Inc. (Redding) and O’Hair Construction Co., Inc. (O’Hair) for damages to and the loss of use of a pugmill, part...
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Opinion Plaintiff Mount Vernon Memorial Park, a corporation (Mount Vernon), appeals from an adverse judgment on its petition for writ of mandate. The petition was filed pursuant to Code of Civil Procedure section 1094.5 after defendant Board of Funeral Directors and Embalmers (Board), took disciplinary action against it. Such action was predicated upon Mount Vernon’s violation of certain ...
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Opinion We are asked to consider the applicability of the Uniform Child Custody Jurisdiction Act (the Act). (Civ. Code, § 5150 et seq.) The father, petitioner Walter E. Schlumpf, urges alternative views: (1) that California lacks jurisdiction under the Act to modify the existing child custody order and (2) that if California has jurisdiction the facts of this case compel the conclusion that W...
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Opinion Plaintiff and appellant Steven J. Szmaciarz appeals from ajudgment denying his petition for writ of mandate to compel the State Personnel Board to vacate its decision suspending him for a five-month period without pay. Appellant contends on appeal: (1) that the burden of proof was improperly placed on him at the administrative hearing; (2) that the Board’s decision was improperly ...
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Opinion This case involves the question whether the respondent Contractors’ State License Board (Board) erred in its classification procedure by allowing licensed plumbing contractors to install fire protection systems. We hold that it did not. *943 On June 13, 1975, appellants filed in the Superior Court in and for the County of San Francisco a petition for a writ of mandat...
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*134 Opinion Petitioner Richard Morris Miller seeks a writ of prohibition commanding respondent Superior Court of Alameda County to grant his motion to set aside the information charging him with two counts of violating Penal Code section 245, subdivision (a) (assault with a deadly weapon or force). On February 28, 1977, a complaint was filed in the Municipal Court for the San Leandro-Haywa...
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Opinion Defendants were jointly charged with four counts of robbery (counts I, III, IV and V), each count further alleging the use of a *155 handgun. In addition, defendants were individually charged, Thomas with four counts of receiving stolen property (counts II, VI, VII and IX) and Joseph with one count of robbery (count VIII.) A jury trial was held. Defendant Joseph was found guilty of tw...
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Opinion Defendant George Mills was convicted, after jury trial, of lewd and lascivious conduct on a child under the age of 14 years (Pen. Code, § 288). Proceedings were suspended and Mills ordered examined pursuant to Welfare and Institutions Code section 6300 et seq. He was found not to be a mentally disordered sex offender and returned for sentencing. The trial court granted him three years p...
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Opinion Appellants Zalta and Medical Group appeal the dismissal of respondents Billips and others from a pending action for defamation, legal malpractice, and related wrongs. Appellants’ complaint against respondents arose out of the settlement of an earlier medical malpractice action brought against appellants in which respondent attorneys acted as defense counsel for appellants. In...
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Opinion In two petitions filed by the Los Angeles County Department of Public Social Services (DPSS), it was alleged that Lisa D., age 12, and Frankie D., age 8, were dependent children within the meaning of Welfare and Institutions Code section 600, subdivisions (a) and (d). 1 Juanita C. (Juanita), the mother, appeals from the order declaring the children to be dependent child...
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Opinion This appeal follows a commitment of James to the California Youth Authority. 1 In October 1976, James was found to come *200 within the provisions of Welfare and Institutions Code section 602 in that he committed attempted forcible rape. The victim was James’ sister. Following a Youth Authority diagnostic study, James was declared a ward of the court on March 29, 1977, and ordered s...
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*225 Opinion Petitioner, minor plaintiff in an action for damages for the wrongful death of her mother, seeks relief by extraordinary writ, by and through her guardian ad litem, after respondent court granted the motion of real parties, defendants in the action, for an order declaring records held by the Kern County Welfare Department (Department) relating to petitioner to be nec...
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Opinion Plaintiffs-appellants Pan Pacific Properties, Inc., First National Mortgage Co. of San Jose and Edgar R. Dethlefsen (hereafter appellants) appeal from a judgment of dismissal in Santa Cruz County Superior Court following the trial court’s order sustaining the demurrer of defendants-respondents County of Santa Cruz, Board of Supervisors of the County of Santa Cruz and other named i...
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Opinion The State Board of Equalization of the State of California (hereinafter referred to as the Board) appeals from judgments favoring the taxpayers in two separate suits for refund of sales and use taxes paid brought by Lockheed Aircraft Corporation (hereinafter referred to as Lockheed) and Aerojet-General Corporation on behalf of itself and its predecessor in interest, Space General ...
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Opinion A july having rejected his defense of alibi and his testimony that he did not commit the crimes charged, defendant, Enrique Picharro Gonzalez, was convicted of three counts of lewd and lascivious conduct upon the person of 13-year-old Renee S. and one count of violation of Penal Code section 286, subdivision (c), sodomy committed upon the same victim, a person under the age of 14 by one...
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Opinion Petitioners are defendants in a suit brought by real party in interest, the City of Santa Barbara (hereinafter City), to enjoin alleged violation of its zoning ordinance. According to the complaint, petitioners are occupying a residence in a one-family residence zone in violation of the zoning law which prohibits the use of any such property “as a place of residence for more than five p...
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Opinion This is an appeal from an order of dismissal entered after the trial court sustained defendant’s demurrer to plaintiff’s second amended complaint without granting leave to amend. The trial judge determined that plaintiff’s complaint showed that his action for personal injuries was barred by the statute of limitations. (Code Civ. Proc., § 340, subd. 3.) We agree. The material ...
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Opinion Plaintiff has filed this appeal from two orders issued by the trial court in a consumer protection action. The first of these orders is a minute order dated March 7, 1977, ordering plaintiff to modify a stipulation for judgment agreed to by plaintiff and defendants Tony Cimarusti and Ralph Cimarusti. The second order, filed April 28, 1977, denied with prejudice plaintiff’s motion ...
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Opinion Our Supreme Court directed the Director of Corrections to show cause before us in habeas corpus why Emmett E. Smith should not be granted, pursuant to Penal Code section 2900.5, an eight months, seventeen days presentence custody credit upon his current state prison sentence.1 Smith spent approximately this amount of time in the Los Angeles County jail under sentence from the local federal...
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Opinion We issued an alternative writ of prohibition in the within matters at the direction of the Supreme Court. Petitioners are charged with one count of receiving and concealing stolen property (Pen. Code, § 496) and one count of “conspiracy to commit receiving and concealing stolen property” (Pen. Code, §§ 182, subd. 1, and 496). They seek a writ of prohibition, pursuant to Penal Code...
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Opinion A four-count information charged defendant and codefendant Monroe with robbery (count 1) grand theft auto (count 2) unlawful taking or driving of a vehicle (count 3) and grand theft, person (count 4). After defendant’s motion to suppress certain evidence was denied, he withdrew his plea of not guilty to count 4, was rearraigned and pleaded guilty. The other three counts were dismissed i...
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Opinion Defendants-appellants Dwight L. Mathiesen, Tax Assesor, and Carl Martin, Tax Collector of Santa Clara County, the County of Santa Clara, the City of San Jose and the California State Board of Equalization (hereafter referred to collectively as appellants) appeal from a judgment in Santa Clara County Superior Court in favor of plaintiff-respondent Christ the Good Shepherd Lutheran ...
Views: 1
Opinion Defendant, Percy Johnson, appeals from a judgment entered on a jury verdict finding him guilty of attempted murder (Pen. Code, §§ 187, 664), assault with intent to commit murder (Pen. Code, § 217) and assault with force likely to produce great bodily injury (Pen. Code, § 245) while armed (Pen. Code, §§ 3024, subd. (a), repealed Stats. 1976, ch. 1139, § 279, operative July 1, 1977, now §...
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*418 Opinion This is an appeal from a juvenile court commitment based upon a finding that appellant had committed extortion. (Pen. Code, § 518.) On May 18, 1977, a petition was filed alleging that appellant came within the provisions of Welfare and Institutions Code section 602 (Juvenile Court Law). The petition alleged one count of violating Penal Code section 487, subdivis...
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*426 Opinion Defendant Frank Kiko Soltero appeals his conviction by a jury of first degree murder of Patricia Delgado (Pen. Code, § 187). An instruction on murder by torture was given. At 9 a.m. on 4 July 1975 a neighbor discovered Patricia Delgado’s body in her own apartment. The coroner’s autopsy revealed three stab wounds on her thumb; a superficial stab wound to her open left eye and un...
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Opinion Plaintiffs Seymour G. Jacoby, Norman Beck and Morris Appleman filed a complaint for declaratory relief seeking interpretation of a certain amended partnership agreement executed by them and Sam Feldman, now deceased. Named as defendant was Robert Feldman, the decedent’s son, who was the trustee of his *436 father’s estate. Defendant filed a cross-complaint requesting ...
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Opinion In a three-count information, defendant was charged with having committed, on December 23, 1974, the offenses of murder (Pen. Code, § 187), robbery (Pen. Code, § 211) and burglary (Pen. Code, § 459). In the murder count, two items of special circumstances were alleged. One item of special circumstances alleged was that defendant had committed the murder during the commission and attempted ...
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Opinion This appeal presents the question whether the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.; CEQA) and the Knox-Nisbet Act (Gov. Code, §§ 54773-54799.5) require appellant Local Agency Formation Commission of San Diego County (LAFCO) to prepare and file an environmental impact report (EIR) preliminary to the exercise of its discretion to approve or disa...
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Opinion Petitioners, defendants in an action for wrongful death and for physical injuries for emotional distress, moved for summary judgment on the second cause of action on the ground that real parties, plaintiffs in the action, did not state a cause of action for physical injuries for emotional distress in accordance with Dillon v. Legg (1968) 68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912,...
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Opinion Robert E. Imperiale, Jr., appeals from an order denying his petition for letters of administration in the estate of Donna M. Trego, deceased, and granting letters to respondents George and Ardyce Dysert. Appellant first petitioned for appointment as guardian ad litem of his children, Rene and Rhett, in the estate of the decedent, their mother. The petition was granted. Appell...
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Opinion Petitioners Westside Produce Company (Westside Produce) and its workers’ compensation insurance carrier, Pan American Underwriters (Pan American) contend the appeals board erred in determining the injured’s earnings for purposes of temporary disability in that the appeals board failed to recognize that the injured was a seasonal employee. We find substantial evidence does not support the ...
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Opinion Lippson appeals a money judgment against him for $303,000 in favor of plaintiff Grossman. 1 Facts In March 1970 Grossman operated the Mediterranean Car Wash in Torrance on leased premises. Grossman owned the business, the building and fixtures, and the carwash equipment, the last, however, subject to a lien by Tarlov and Weber, his predecessors in interest. In March 1970 Grossman,...
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Opinion Petitioner, Vincent B. Shea, M.D., appeals from a judgment denying his petition for a writ of mandate directed to respondent Board of Medical Examiners. * On September 29, 1972, an accusation charging unprofessional conduct as defined in Business and Professions Code section 2361 and subdivisions (d) and (e) thereof 1 1 was filed against Dr. Shea. It was alle...
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81 Cal.App.3d 582 (1978) 146 Cal. Rptr. 512 DONALD FAWN, Plaintiff and Appellant, v. HOLIDAY INVESTMENT CORPORATION, Defendant and Respondent. Docket No. 17299. Court of Appeals of California, Third District. June 2, 1978. *583 COUNSEL Edgar F. Hazleton for Plaintiff and Appellant. Kennedy & Kennedy and John G. Camphouse for Defendant and Respondent. OPINION PUGLIA, P.J. This is a motion to dismi...
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Opinion James Stapp injured his back while employed as a sheet metal worker for Patton Sheet Metal Works in Fresno; he applied for workers’ compensation benefits. The workers’ compensation judge made findings, on the basis of which he requested a recommended permanent disability rating from the Permanent Disability Rating Bureau; his request stated: “Applicant’s back condition precludes h...
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Opinion This appeal challenges the correctness of a judgment directing a verdict of unlawful detainer, and, in a cross-appeal, the adequacy of damages assessed against the detainer. A jury trial in the San Francisco Superior Court ended when the jury failed to agree on the issue of liability, whereupon the trial judge after argument directed a verdict in favor of respondent on the is...
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*618 Opinion Plaintiffs appeal from an order sustaining defendant’s demurrer without leave to amend. 1 For reasons set forth herein, including an explanation contained in footnote 1, we amend that order and affirm the judgment of dismissal. Plaintiffs, Melanie and Robert Bellah, are the heirs of Thomasin (Tammy) Bellah, their daughter, who succumbed to a self-infl...
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Opinion Introduction The principal question posed by the within mandamus proceeding is whether or not a hospital waives the immunity from discoveiy provided *629 in Evidence Code section 1157 (hereinafter section 1157) by filing a transcript of its staff committee hearing in an unrelated administrative mandamus proceeding in which a physician, who is also a defendant in ...
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81 Cal.App.3d 649 (1978) 146 Cal. Rptr. 648 PACIFIC INDEMNITY COMPANY, Plaintiff and Respondent, v. TRANSPORT INDEMNITY COMPANY, Defendant and Appellant. Docket No. 3301. Court of Appeals of California, Fifth District. June 2, 1978. *652 COUNSEL Stammer, McKnight, Barnum & Bailey and Dean A. Bailey for Defendant and Appellant. McCormick, Barstow, Sheppard, Coyle & Wayte, Harry A. Allen an...
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*662 Opinion Statement of the Case This appeal was transferred to this court for hearing and decision following certification by the Appellate Department of the Superior Court of Tulare County pursuant to rule 63 of the California Rules of Court. The issue to be decided is whether a person charged with being under the influence of narcotics as proscribed by Health and Safety...
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Opinion Defendant City of Fairfax, a general law city (hereafter City), appeals from a judgment entered following a bifurcated trial awarding respondents $1.2 million damages as just compensation for the inverse condemnation of their property, attorney fees in the sum of $115,000 and costs. On appeal, City contends that the material findings do not support the judgment of inverse condemna...
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Opinion Plaintiff and appellant Jacklyn Lee Paula, individually and as guardian ad litem for her three minor children, appeals from an entry of summary judgment and judgment of dismissal in favor of respondents, the owners of three different taverns. In support of appellants’ complaint for wrongful death, the following facts are alleged: On the evening of April 3 and the early morning of April ...
Views: 13
Opinion This is an appeal from a judgment entered pursuant to an order granting summary judgment in favor of defendants and respondents Villa Nueva Condominium Association 1 (hereinafter respondents) and against plaintiff and appellant Joe B. Ritchey (hereinafter appellant). On July 30, 1973, appellant purchased a two-bedroom unit in the high-rise portion of the Villa Nuev...
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Opinion HUPP, J. * — In this action for damages for personal injuries brought under the Longshoremen’s and Harbor Workers’ Compensation Act as amended in 1972 (hereafter LHWCA), 33 United States Code section 901 et seq., judgment was rendered for defendants following a jury verdict for defendants. Plaintiff appeals, contending that the trial court committed prejudicial erro...
Views: 1
81 Cal.App.3d 713 (1978) 146 Cal. Rptr. 675 In re the Marriage of PHYLLIS L. and MILTON M. BEILOCK. PHYLLIS L. BEILOCK, Respondent, v. MILTON M. BEILOCK, Appellant. Docket No. 17869. Court of Appeals of California, Fourth District, Division Two. June 7, 1978. *717 COUNSEL Richard A. Daily for Appellant. Launer, Chaffee, Ward & Orman and Walter B. Chaffee for Respondent. *718 OPINION McDANIEL, J. ...
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*754 Opinion Plaintiffs in these nine consolidated cases appeal from identical judgments of dismissal entered after the trial court sustained general demurrers without leave to amend. The cases arise out of a catastrophic explosion and fire at Champion Papers’ Novoply Plant in Shasta County on March 23, 1976, in which several Champion employees were killed or injured. Plaintiffs filed perso...
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*762 Opinion Statement Of The Case This is an appeal by the plaintiff from a summary judgment granted to the defendant in an action for damages for breach of contract. Both sides moved for summary judgment promptly after the case was at issue. Both agreed that the legality or illegality of the letter agreement (see Appendix A, post, at p. 769) was a matter of law ...
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Opinion A supplemental petition filed in the Contra Costa County Juvenile Court alleged that Donald L., a 17-year-old ward of the court, burglarized a certain residence in Martinez on December 9, 1976. A jurisdictional hearing before a referee was set for January 6, 1977. At the commencement of that proceeding, the juvenile moved to suppress certain evidence on the ground it had been unla...
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*779 Opinion Frank Wright appeals from a judgment by which the court dismissed, upon demurrer, his first amended complaint against FMC Corporation. Appellant had attempted to plead causes of, action against respondent for damage suffered by appellant while mixing chemicals in the preparation of pesticides. Respondent brought before the court through judicial notice the fact that appellant h...
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81 Cal.App.3d 780 (1978) 146 Cal. Rptr. 752 EDWARD P. BOTSFORD, as Trustee, etc., et al., Plaintiffs and Appellants, v. HASKINS AND SELLS, Defendant and Respondent. Docket No. 41143. Court of Appeals of California, First District, Division One. June 14, 1978. *781 COUNSEL Gerhard Stoll, Robert J. Donovan and Erwin S. Solomon for Plaintiffs and Appellants. Ackerman, Johnston, Norberg & Parkins...
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Opinion The first of the above captioned actions was brought by Jerry LeFlore during his lifetime against F. P. Lathrop Construction Company, a corporation (hereafter for convenience, Lathrop), for damages for personal injuries proximately caused by Lathrop’s negligence. Upon LeFlore’s death his personal representative was substituted as plaintiff. The second of the two actions was commen...
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Opinion The minor appeals from order sustaining petition (§ 602, Welf. & Inst. Code) charging him with forcing the victim to participate in an act of oral copulation and voluntarily acting in concert with another in its commission, and burglary; declaring him a ward of the court; and committing him to California Youth Authority. Each crime was declared to be a felony and the court found to be tru...
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*833Opinion This matter comes to us with directions from the Supreme Court to issue an alternative writ of mandate. Petitioners are three former faculty members of the California State University, San Jose, who are plaintiffs in two consolidated actions brought against real parties, defendants in the actions. In their complaints, petitioners allege that they were denied tenure and/or retention in ...
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Opinion After a jury trial defendant was convicted of one count of first degree robbery. He appeals the judgment of conviction. Defendant along with codefendant Smith committed an armed robbery of a market in Huntington Park about 8 p.m. on November 26, 1976. Smith was armed with a shotgun during the robbery. At the time of the robbery the owner, Choong Whan Lee, and a customer, Jesus Sosa, were i...
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81 Cal.App.3d 874 (1978) 146 Cal. Rptr. 771 In re DARRYL T., a Person Coming Under the Juvenile Court Law. KENNETH F. FARE, as Chief Probation Officer, etc., Plaintiff and Respondent, v. DARRYL T., Defendant and Appellant. Docket No. 31458. Court of Appeals of California, Second District, Division Four. June 16, 1978. *876 COUNSEL Ruth Ohanessian, under appointment by the Court of Appeal, for Def...
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*887 Opinion Plaintiff appeals from a judgment of dismissal following an order sustaining defendants’ demurrer without leave to amend. The basis for the court’s ruling was the failure of Scientific Cages, Inc. (Scientific) to allege it was licensed as a contractor as required by Business and Professions Code section 7031. 1 We decide the omission of this allegation is ...
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Opinion Jackie Eugene Roberson pied guilty to using a firearm to rob a Jolly Roger Restaurant (Pen. Code, ’§§ 211, 12022.5, 1203.06, subd. (a)(l)(iii)) and admitted two prior convictions. He appeals the judgment claiming his sentence was improperly computed. The new sentencing law provides three possible terms: the lowest is to be used where there are mitigating circumstances and the highest ...
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Opinion Procedural Background: Lynn Godfrey was charged by information with violation of Health and Safety Code section 11352, subdivision (a), and one prior felony conviction. 1 The People agreed not to prove the prior conviction, 2 and defendant pleaded guilty to violation of Health and Safety Code section 11352, subdivision (a). 3 At the time for sentencing, the trial court on its ...
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Opinion Plaintiff Los Angeles Unified School District of Los Angeles County brought an eminent domain proceeding against defendants C. F. Bolster Co., Robert W. Bolster and Miriam M. Bolster to acquire a portion of defendants’ real property for public school *909 purposes. Trial was by jury. The jury returned a verdict fixing the award to defendants in the sum of $304,000. Within 30 days afte...
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*925 Opinion San Diego County Archaeological Society, Inc. (Society) appeals the judgment of dismissal after Compadres’ demurrer to the first amended complaint as amended was sustained without leave to amend, on the ground plaintiff did not have proper standing, and to allow recovery would be the taking of private property without compensation. Compadres, a partnership, owns...
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*932 Opinion The principal issues presented by this case are: (1) a man’s right to bring an action for the purpose of obtaining a judicial determination that he is the natural father of a child bom out of wedlock, and (2) the nature and extent of the rights possessed by a natural father of a child bom out of wedlock to require that child to change its surname from that of its nat...
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81 Cal.App.3d 940 (1978) 146 Cal. Rptr. 802 THERESA ENTERPRISES, INC., et al., Plaintiffs and Respondents, v. EDWARD M. DAVIS, as Chief of Police, etc., et al., Defendants and Appellants. DASH, INC., et al., Plaintiffs and Respondents, v. EDWARD M. DAVIS, as Chief of Police, etc., et al., Defendants and Appellants. Docket Nos. 51830, 51831. Court of Appeals of California, Second District, Divisio...
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*953 Opinion Petitioner seeks a writ of mandate directing respondent to vacate an order which dismissed a narcotics addiction petition (Welf. & Inst. Code, § 3051) and referred the matter back for resumption of criminal proceedings. The facts, which are not in dispute, are as follows: Petitioner pleaded guilty to possession for sale of a controlled substance. (Health & Saf. Code,...
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Opinion This case concerns the alleged denial of the right of a prisoner to a speedy trial and improper deprivation of his opportunity to exercise the right to a speedy trial. The facts are undisputed. On October 14, 1975, appellant Eugene Delbert Cave allegedly sold one gram of heroin to Modesto undercover agent Thomas Bazan. Officer Bazan testified that he and an informant, Charles Robinson...
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Opinion The defendant State of California (State) has filed a motion to dismiss the appeal of plaintiff Frank Jaramillo. For the reasons which follow, we conclude the motion must be granted. *970 The history of this action can be summarized briefly. While operating his motorcycle on a highway controlled by the State, plaintiff collided with an automobile driven by Carter B. Jones and sustai...
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*975 Opinion Defendant was indicted after he was found not a fit and proper subject to be dealt with under Juvenile Court Law. (Welf & Inst. Code, § 707.) He appeals from the judgment entered after he pied guilty to first degree robbery (Pen. Code, § 211), admitting he was then armed with a deadly weapon (Pen. Code, § 12022), to a second count of first degree robbery, admitting h...
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Opinion Homestead Supplies, Inc. (hereafter plaintiff) commenced this action to obtain a declaration of the correct amount of the annual premium payment due under a policy of life insurance issued to plaintiff by Executive Life Insurance Co., (hereafter defendant) on the life of plaintiff’s president. Trial was to the court without jury. Judgment was for defendant. Plaintiff appeals. ...
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Opinion The minor appeals from a judgment (commitment to the California Youth Authority) entered by the juvenile court after the sustaining of a petition alleging that the minor committed an assault with intent to commit sodomy. (Pen. Code, § 220.) The minor contends that the court erred in omitting to specify a three-year maximum period of confinement in the commitment order. T...
Views: 2
81 Cal.App.3d 999 (1978) 147 Cal. Rptr. 195 THE PEOPLE, Plaintiff and Respondent, v. ELEAZAR BARAJAS, Defendant and Appellant. Docket No. 9046. Court of Appeals of California, Third District. June 21, 1978. *1002 COUNSEL Kevin P. Regan, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Arn...
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I dissent. Plaintiff has been deprived of his First Amendment right to advertise. There appears to be no dispute that plaintiff is being discriminated against by CVS based solely on his exercise of his First Amendment right. It is not surprising that a “private corporation” whose members are a part of the optometrical profession would seek to discourage advertising by members. Private discriminati...
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Opinion Statement Of The Case On May 2, 1975, an amended information was filed in the superior court charging appellant with the following crimes: count I, violation of Penal Code section 209, kidnaping for the purpose of robbery where the victim suffered bodily harm, to wit, death; count II, violation of Penal Code section 261, subdivision 2, forcible rape; count III, violation of *7Penal Code s...
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Opinion This is an appeal from a judgment on the pleadings (second amended complaint) in favor of defendant and respondent Steelform Contracting Company (Steelform) and against plaintiff* and appellant Gilbert Financial Corporation (Gilbert). Gilbert entered into a construction contract with Sheldon Appel Construction Company (Appel) in 1971 to be the general contractor for a bank records sto...
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Opinion Petitioner Pacific and Southwest Annual Conference of the United Methodist Church (Conference) seeks a writ of mandate (Code Civ. Proc., § 1085) commanding the respondent superior court to disqualify the Honorable Ross G. Tharp, judge of that court (Code Civ. Proc., § 170, subd. 5), from further hearing of any matter in the underlying action. Alternatively, the Conference requests...
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Opinion A supplemental petition was filed in the Kern County Juvenile Court alleging that appellant came within the provisions of Welfare and Institutions Code section 602 in that on December 19, 1976, he unlawfully took a 1968 Dodge van belonging to S. J. Mobley in violation of Vehicle Code section 10851. At the jurisdictional hearing the allegations of the petition were found to be true...
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Opinion In this personal injury action for damages plaintiff, Jennifer Lyn Mathews, appeals from a judgment of dismissal entered after the granting of a motion for judgment on the pleadings in favor of the defendant State of California. In sum, plaintiff alleges in her complaint that Brundage Lane and “P” Street are public streets which intersect in the City of Bakersfield, Brundage ...
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Opinion A one-count information charged defendant with a violation of section 12021 of the Penal Code. The county public defender was appointed to represent defendant who pleaded not guilty. A motion under section 1538.5 was eventually denied. After the denial the previously entered plea was withdrawn and defendant pleaded guilty to the offenses charged. Eventually defendant was placed on proba...
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Opinion Plaintiffs Steven and Eugene Grimes brought suit against defendants Elite Insurance Company and W. D. Forney Insurance Agency to obtain a judicial declaration that, a policy of motorcycle insurance provided plaintiffs with uninsured motorist coverage. Plaintiffs also sought an order directing defendants to arbitrate the questions of liability and damages. *133 Defend...
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Opinion Orders to quash service of process against out-of-state newspapers, who claim a special preference under the First Amendment, are appealed. Analogizing to Gertrude Stein (a rose is a rose is a rose), and agreeing with Chief Justice Burger, concurring in First National Bank of Boston v. Bellotti (1978) 435 U.S. 765, 796-802 [55 L.Ed.2d 707, 730-734, 98 S.Ct. 1407, 1426-1429], that fr...
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*161 Opinion At the time of this appeal, appellant was and had been since 1948 a member of Sheet Metal Workers’ International Association, Local 108 (Local 108), one of the respondents herein. In 1951, appellant became a partner in the business firm of Crenshaw Sheet Metal and Heating Company (Crenshaw). In 1958, the Sheet Metal Workers’ Pension Plan of Southern California, Arizo...
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*168 Opinion Plaintiff Vivian Crumpton appeals from an adverse judgment entered following the verdict of a juiy in favor of defendant Edward Dickstein, M.D., in her negligence action for medical malpractice involving the diagnosis and treatment of breast cancer. The complaint was filed April 7, 1975, and became at issue July 21, 1975, with the filing of the answer. Trial commence...
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*176 Opinion In October 1969, an action in equity was instituted by a judgment creditor, Howard and Betty Joy Engelman (Engelman), to subject certain residential property to their judgment as being the property of the judgment debtor Hank Gordon (Hank), although title thereto stood in the name of Hank’s wife, Carolyn S. Gordon (Carolyn). Thereafter, in March 1972, pursuant to lea...
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Opinion In this case we hold that a defendant who has served one year in jail as a condition of probation and who thereafter violates probation may be sentenced to an additional period of up to one year in *185 jail if he knowingly and intelligently waives the provisions of Penal Code section 2900.5. Facts Convicted of receiving stolen property, defendant was placed on probation on condit...
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Opinion Real party in interest Donnie Roy O’Neal is an indigent imprisoned in a state correctional facility and is a defendant in three civil actions for wrongful death pending in Fresno County. *193Fresno County Legal Services, Inc., a publicly funded pro bono publico legal services organization, is representing a codefendant in the same civil actions and cannot represent O’Neal because of a pot...
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Opinion The genesis of this litigation is a real property boundary dispute. The property of plaintiffs, the Allens, was separated from that of defendants, the McMillions, by a chain link fence and foliage growing along it. The fence had been in place when the Allens *214 purchased the property, and they understood it marked the property boundary. The McMillions had their prop...
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*223 Opinion A jury found defendant guilty of escape without force, and to be true four prior felony convictions (burglary, receiving stolen property, grand theft, escape); and that he was sane at the time of the commission of the offense. He appeals from the judgment. The sole issue is whether the trial court erred in failing to hold a hearing as to defendant’s mental competence, pursuant to...
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Opinion Plaintiffs, California Teachers Association and Fullerton Secondary Teachers Organization, appeal from a judgment on the pleadings in favor of defendant, Board of Trustees, Fullerton Union High School District (District). The complaint sought a judgment declaring Education Code section 18256 1 unconstitutional and an injunction preventing defendant from entering into contracts with pr...
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*262 Opinion Plaintiffs United States Overseas Airlines, Inc., Ocean Air Tradeways, Inc., Ocean Air Tradeways, a partnership, Airpower Overhaul, Inc., Canamex Corporation, C & J Aircraft Leasing, a partnership, and the trustees in bankruptcy of some of them, commenced what we shall term the “California action” against the several defendants to whom, for convenience, we shall refe...
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*280 Opinion Defendant Rae P. Haas appeals from a judgment of the superior court confirming her placement on mandatory sick leave of absence pursuant to section 44942 of the Education Code. 1 Facts Defendant-appellant Haas is a permanent certificated employee of the Pasadena Unified School District (hereinafter referred to as District). Pursuant to section 44942, subdivision (a), the Bo...
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Opinion This action reaches us on an appeal from a judgment of dismissal after a demurrer was sustained without leave to amend. It raises a narrow issue of the right of a landowner denied access to the facilities of a water district to recover in inverse condemnation for the diminution in value of his property caused by lack of water. Determining that resolution of the issue is controlled by S...
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*315 Opinion Helen Ball, suing individually and on behalf of all others similarly situated, appeals from a summary judgment entered in favor of the County of Los Angeles (hereafter County) on her complaint alleging that she is entitled to recover interest on property taxes voluntarily refunded to her by the County. The refund was paid by the County upon receipt and verification o...
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Opinion Plaintiff, Hillco, Inc., appeals from a judgment dismissing with prejudice its joint debtor proceeding (Code Civ. Proc., §§ 989-994) against defendant, Leonard Stein,'following the sustaining, without leave to amend, of said defendant’s demurrer to plaintiff’s amended complaint. The sole issue presented is whether a joint debtor proceeding can be prosecuted upon a cause of action ...
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Opinion Plaintiff appeals from an adverse summaiy judgment in her suit for insurance policy benefits and damages. On May 2, 1973, plaintiff and her husband ordered a Levitt mobile home from Lloyd Korth of El Kay Mobile Homes in Isleton, California. Korth and the Palmanteers flew to the factory in Southern California and placed the order, specifying certain optional equipment, colors, and fini...
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*375 Opinion The ultimate question presented by this case is whether the governing board of a “private” nonprofit hospital corporation may validly make a policy decision, based on its reasonable judgment that it is in the best interests of good patient care and sound administration of the hospital, to operate the hospital’s chronic renal hemodialysis facility on a “closed-staff” basis (i.e., ...
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82 Cal.App.3d 396 (1978) 147 Cal. Rptr. 248 COUNTY OF KERN et al., Petitioner, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent; LORRAINE RICHARD, Real Party in Interest. Docket No. 3995. Court of Appeals of California, Fifth District. June 29, 1978. *398 COUNSEL Borton, Petrini & Conron and George F. Martin for Petitioner. No appearance for Respondent. *399 Sims & Solomon, Gabriel W. Sol...
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Opinion Carl L., a minor, appeals from an order of the Superior Court, adjudging him to be a person coming under section 602 of the Welfare and Institutions Code, 1 and placing him in the custody of the probation officer. For the reasons set forth below, we affirm the order. Carl is a minor, 10 years of age at the time herein involved. He was seen throwing matches into a neighbor’s garage. ...
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Opinion We must determine whether the Fair Political Practices Commission (FPPC) validly interpreted the California Government Code *436 section 87103 phrase “public generally” so as to continue to allow members of an industry to serve on state decision-making boards affecting their industry. We conclude that the FPPC’s interpretation of “public generally” is consistent with ...
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Opinion California State University, Hayward (CSUH) has been a member of the National Collegiate Athletic Association (NCAA) for several years. In 1970 and 1971, CSUH permitted two students to represent it in intercollegiate athletic competition. The NCAA took exception and imposed a penalty upon CSUH. Several years and two appeals later, the consequences are still in litigation. CSU...
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Opinion Appellant was charged with and convicted of burglary (Pen. Code, § 459). No allegation was made that appellant actually committed a breaking and entering of a structure with intent to commit a felony or petit larceny. His guilt as a principal rests upon his activity as an aider and abettor (Pen. Code, § 31). At the outset, we note there is no question of the sufficiency of the evidenc...
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Opinion In Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393], the California Supreme Court replaced the doctrine of contributory negligence, incorporated in the California statutes since the Field Code, with the principle of “pure” comparative negligence. (13 Cal.3d at pp. 814, 827.) In American Motorcycle Assn. v. ...
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Opinion This appeal from a judgment of dismissal after a demurrer was sustained without leave to amend tests the scope of the “meet and confer” obligation imposed upon public agencies by the Meyers-Milias-Brown Act. (Gov. Code, § 3500 et seq.) Specifically, we are required to determine whether a charge for employee parking supplied by the agency is included within the definition of “wages, hour...
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Opinion This is an appeal from a judgment in administrative mandamus which orders defendant Grover City to vacate its decision suspending plaintiff Hardy Estes from his position as a police officer for three days, placing him in the status as a probationary employee for six months, and reducing his pay grade by two steps, The city asserts that the trial court employed the improper standa...
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Opinion Plaintiff Roger Ostrus and Peggy Ostrus (a minor, by her guardian ad litem) filed a complaint on March 27, 1973, against defendant Helen Jean Price, alleging damages for personal injuries resulting from an automobile accident that occurred in Glendora, California. Defendant was served with summons on July 3, 1976, and the return of service was filed by plaintiffs almost two weeks ...
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*530 Opinion After a jury trial defendant was found guilty of a violation of section 11351, subdivision (a) of the Health and Safety Code—possession of heroin for the purpose of sale—as charged in the information. Three prior felony convictions, which defendant had admitted, were found to be true. Probation was denied. Defendant appeals. Issues The heroin which formed the basis of defenda...
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*547Opinion Defendant Reeder appeals from a judgment convicting him of the sale of heroin. In a four-count information, a codefendant, Contreras, individually was charged in count I with the felony of selling cocaine in violation of Health and Safety Code section 11352, subdivision (a). In count II, Contreras was charged individually with the felony of selling heroin in violation of Health and Saf...
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Opinion Charles M. Smaltz appeals from an interlocutory judgment of dissolution of marriage which ordered, inter alia, that appellant husband reimburse the marital community for spousal support payments made by him to a former spouse out of community funds. The parties had been married for approximately three years. There were no children of this marriage. 1 At the date of separation, both ...
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*576 Opinion Plaintiffs, retired employees of Meletron Corporation (Meletron), and its successor, the Meletron Division of DeLaval Turbine, Inc. (DeLaval), the latter a subsidiary of Transamerica Corporation, brought this action for declaratory relief against defendants, the trustees of the International Association of Machinists Labor-Management Pension Fund (pension fund), for ...
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Opinion In this appeal from a judgment of the trial court denying plaintiffs injunctive and declaratory relief we consider the constitutionality of Government Code section 1029, which prohibits the employment of an ex-felon in any governmental positions classified as peace officers. Government Code section 1029 reads as follows: “(a) Except as provided in subdivision (b), any person who has been c...
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*621 Opinion Petitioner filed a workers’ compensation claim for disability resulting from a cerebrovascular accident suffered while employed as a deputy sheriff by the County of Orange. On the basis of the medical evidence and the presumption in Labor Code section 3212, the workers’ compensation judge found that the injury arose out of and in the course of employment and made an ...
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Opinion This case is an appeal by the California Unemployment Insurance Appeals Board from a judgment of the Superior Court of Los Angeles County, granting a petition for writ of mandate requiring appellant to set aside its decision denying unemployment benefits to respondent Addie Tomlin and requiring appellant to grant respondent benefits. The facts are as follows: Until December 2, 1974, respon...
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Opinion Plaintiff, Donna Pipkin, a permanent deputy sheriff acting as a matron in the Shasta County jail, received notice that she was to be *656 dismissed effective six days later. The factual bases for the dismissal order were that she had given false information in explanation of her absence from work; that she entered an area in the jail carrying keys without another matr...
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Opinion In this action plaintiffs appeal from a judgment of dismissal entered upon an order sustaining defendants’ general demurrers to plaintiffs’ first amended complaint, without leave to amend. *669 This complaint alleged three causes of action. First, a conspiracy was asserted among defendants to deprive plaintiff Andrew Martin Taylor (Taylor) of his federal civil rights...
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Opinion William R. Herrington and his wife Georgia May Herrington sued in superior court to quiet title to certain real property owned by them and lost at a tax sale for nonpayment of the secured property taxes. The action seeks to invalidate the tax deed of the State of California to William E. Weigel, purchaser at the tax sale. The Herringtons owned an undivided one-half interest i...
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Opinion This is an appeal from a judgment granting declaratory relief and money judgment. A dispute arose between appellant and respondent concerning liability for the costs of relocating respondent’s pipelines in two distinct areas. The pipeline relocation became necessary when appellant constructed an undercrossing for Lewis Street under the Atchison-Topeka and Santa Fe Railway right of...
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Opinion In the early morning hours of September 16, 1976, Sarah S. was returning to her San Francisco apartment, having finished her shift as a waitress at Russo’s Restaurant. Near the intersection of Haight and Ashbury, she was set upon by appellant, who, wielding a butcher knife and threatening to kill her, marched her down the street. Pushing her into a nearby alley, appellant robbed Sarah...
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Opinion Larry E. Parish, his wife and daughter, appeal the summary judgment terminating their wrongful death action against Donald W. Lloyd, owner of the land where Lawrence Ray Parish rode and wrecked his motorcycle and died. Lloyd owns unimproved land in the county which is used by motorcyclists for riding. Its topography includes numerous hazardous ravines. Although Lloyd knew of these con...
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*791 Opinion This is a case of first impression in the State of California. The California Casualty Indemnity Exchange (hereinafter respondent) sued for a declaration that Carol Hoskin (appellant) was not afforded liability coverage or uninsured motorist protection under her automobile insurance policy with respondent with respect to an accident occurring on March 22, 1973. ...
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Opinion Thomas E. McGue appeals from a judgment denying petition for writ of mandamus. If issued, the writ would have directed respondent Director of the Department of Motor Vehicles (hereinafter DMV) to set aside its decision suspending appellant’s driver’s license for a period of six months pursuant to Vehicle Code section 13353. That section creates an implied consent to a chemical test—bloo...
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Opinion This appeal is from summary judgment against appellant on March 16, 1977, 1 predicated on the ground that appellant’s action for *827 medical negligence (malpractice) against respondent filed April 14, 1975, was barred by the time limitations contained in Code of Civil Procedure section 340.5. The facts are undisputed. Appellant was respondent’s patient from September 11, 1961, ...
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Opinion The question presented by this appeal is whether an employee’s civil action against his employer and fellow employees for *835 intentional infliction of emotional distress is barred by the exclusive remedy provisions of the Workers’ Compensation Act (Lab. Code § 3200 et seq.). We hold that it is not. Plaintiff filed a complaint in the court below alleging that he...
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Opinion This is an appeal from an order entered in a proceeding commenced pursuant to section 946.6 of the Government Code 1 denying the petition of a minor and the minor’s mother for an order relieving each of them from the obligation of filing a claim with a public entity as required by sections 911.2 and 945.4. I On March 12, 1976, plaintiff Dennis Williams (hereafter referred to as th...
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Opinion Petitioner (applicant) seeks review of an order of the Workers’ Compensation Appeals Board (Board) denying reconsideration of a decision by the judge that applicant’s injury did not arise out of and occur in the course of his employment. This court denied applicant’s petition for writ of review without opinion. On applicant’s petition, the California Supreme Court granted hearing and retra...
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Opinion In two unrelated cases the District Attorney of Los Angeles County petitioned this court for a writ of mandate to compel the superior court of that county to vacate orders accepting pleas of guilty in one case and a plea of nolo contendere in the other. Because the cases present a single common, but important issue, we granted the alternative writs and consolidated them. In each case ...
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Opinion This petition for a writ of habeas corpus challenges the constitutionality of section 11550 of the Health and Safety Code on various grounds. The petition was initially filed in the Supreme Court which issued an order to show cause returnable before this court. . Petitioner was sentenced to serve one year in county jail following her conviction of violating section 11550, the...
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Opinion We confront here the single issue of whether Helix Land Company (Helix), owners of land in the Tia Juana River Valley, can state a cause of action in inverse condemnation or nuisance against defendants City of San Diego, its counsel and certain of its officers (City), *937 and/or the State of California, its Secretary of the Resources Agency and Director of State Park...
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Opinion This case is before us on a motion under Penal Code section 1181, subdivision 9, for an order vacating a judgment, which motion was consolidated with an appeal to this court. The motion is based upon the fact that the official court reporter had lost her notes and was unable to provide a transcript of the arguments to the jury. Defendant Apalatequi raised several issues on appeal, inclu...
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Opinion William Ward seeks a writ of habeas corpus to annul a 15-day sentence for contempt of court (Pen. Code, § 166) imposed for violation of a preliminaiy injunction. Petitioner is a defendant in an action commenced by the City Attorney of Concord to enjoin as a nuisance the exhibition of an allegedly obscene motion picture. He challenges the validity of the preliminary injunction, *984 ...
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Opinion The Happy Steak, Inc. (hereinafter referred to as franchisor) and Larry D. and Mary S. Cordonier, husband and wife (hereinafter referred to collectively as Cordonier) appeal from a judgment of dismissal as to defendant Central Shopping Plaza Associates (hereinafter referred to as Plaza) entered by the trial court after the general demurrer of Plaza to plaintiffs’ complaint for dam...
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Opinion Helen M. McGee sought damages from John Hedger and Cessna Aircraft Company for personal injuries she sustained in the crash of a 1968 model 177 Cardinal Cessna aircraft. The aircraft was manufactured by Cessna and owned by Hedger. McGee settled her claim, dismissed her complaint, as to defendant Hedger before commencement of the trial. As to the remaining defendant Cessna, McGee asserte...
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Opinion Calvin O. Walters, Jr., respondent; commenced this action against Irvine A. Marler and Sharon E. Marler, appellants, for specific performance of an agreement to deed Walters a house and certain real property. Walters also sought damages. Walters amended the complaint to seek restitution based on rescission, reformation, damages for fraud, negligence, breach of fiduciary duty and f...
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*41 Opinion Defendant Allstate Insurance Company (Allstate or defendant) was granted summary judgment. Plaintiffs John and Maude Murphy (plaintiffs) appeal. Plaintiffs filed no declarations in opposition to defendant’s motion for summary judgment. However, defendant’s motion was based on a number of declarations, several of which referred to and incorporated other documents,...
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Opinion The appeal at bench concerns the recovery of real property taxes for the 1973-1974 assessment year levied upon a possessory interest *72 in two large cargo cranes owned by respondent City of Oakland (hereafter Port or respondent) and leased to and operated by Seatrain Terminals of California, Inc. (hereafter Seatrain or appellant). The background facts may be summariz...
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Opinion This is an appeal from the judgment following appellant’s conviction of voluntary manslaughter under Penal Code section 192, subdivision 1. On March 5, 1977, Melody Howard asked Carnell Brunner, the man she lived with and the victim in this case, to purchase a bag of heroin for her. Brunner asked James L. Webb, appellant herein, to get a bag for him, which appellant did, charging Brunner $...
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83 Cal. App. 3d 96 (1978) 147 Cal. Rptr. 586 In re the Marriage of HELEN F. and WILLIAM R. ROESCH. WILLIAM R. ROESCH, Respondent, v. HELEN F. ROESCH, Appellant. Docket No. 41179. Court of Appeals of California, First District, Division Four. July 24, 1978. *98 COUNSEL Stern, Stotter & O'Brien, Lawrence H. Stotter and Victoria J. De Goff for Appellant. Suren Toomajian, Robert D. McGuiness, The...
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Opinion These three actions consist of a personal injury action and two wrongful death actions, all arising out of the same accident. The three matters were consolidated for the purpose of trial. The principal issues on this appeal arise by reason of comparative fault and partial indemnity guidelines enunciated in the seminal cases of Li v. Yellow Cab Co. (1975) 13 C...
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Opinion The People appeal from an order of the Superior Court setting aside pursuant to Penal Code section 995 the amended information charging defendant with forgery. (Pen. Code, § 470.) Facts—Preliminary Hearing Brian Harvey was president of Alflex Corporation in Gardena, a manufacturer of electrical wire, cable, conduit and aluminum coil sheet. In late October or early November 1974, Har...
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I concur in reversal of the judgment awarding respondent his attorneys’ fees, because he did not sue appellant bank for breach of the written security agreement which provided for them. As to reversal of the judgment for actual and punitive damages entered on the jury’s verdict, I respectfully dissent. Respondent did sue the bank for its breach of its oral contract to keep the pickup insured. His ...
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83 Cal. App. 3d 143 (1978) 147 Cal. Rptr. 710 In re the Marriage of BEVERLY MAE and MARSTON BARNES, JR. BEVERLY MAE BARNES, Appellant, v. ELEANOR BARNES, Respondent. Docket No. 41908. Court of Appeals of California, First District, Division Four. July 26, 1978. *145 COUNSEL Harland & Gromala and David C. Moore for Appellant. Sapper, Stone & Hanson and Sam L. Stone for Respondent. OPINION ...
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Opinion Attorney John A. Altschul appeals from the summary judgment granted in an action brought by Altschul against Attorney Hill Sayble wherein appellant sought to recover money allegedly owed by respondent pursuant to said attorneys’ fee-splitting/referral fee agreement. The trial court held that the contract was against public policy and unenforceable. Facts: On March 24, 19...
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Opinion Defendants, Rio Hondo Associates, an approximately 45-member partnership composed largely of doctors, which owns a successful hospital in Downey, California, and generally those doctors, appeal from a judgment against them entered upon a jury verdict of compensatory damages in the principal sum of $208,869.14 and from an order denying their motion for judgment notwithstanding the verdict....
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Opinion Plaintiffs, John K. Orme and Edith B. Orme, appeal from that portion of an inverse condemnation judgment which awarded them approximately $67,700 damages and denied interest on the entire award from the date the first damage occurred, and from the order granting the motion of the state, taxing engineering costs and attorney fees. Statement of Facts The plaintiffs appeal only from post tri...
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Opinion This is an appeal from a judgment of the Alameda County Superior Court denying a petition for a writ of mandamus, or, in the alternative, prohibition. Appellants are four state employee organizations and a number of individual Department of Transportation employees. The lawsuit arose under the following circumstances. In August of 1975 the department, faced with certain revenue cutbac...
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83 Cal. App. 3d 214 (1978) 147 Cal. Rptr. 616 GILLETT-HARRIS-DURANCEAU & ASSOCIATES, INC., Plaintiff and Appellant, v. ROBERT C. KEMPLE et al., Defendants and Respondents. Docket No. 40857. Court of Appeals of California, First District, Division Two. July 27, 1978. *216 COUNSEL Littlejohn & Westfall, Donald W. Littlejohn, Gerald W. Nash and Crump, Bruchler & Crump for Plaintiff and A...
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83 Cal.App.3d 224 (1978) 147 Cal. Rptr. 777 Guardianship of the Person and Estate of ROBERT JACOB SLAKMON, a Minor. EUGENIA M. SLAKMON, as Guardian, etc., Petitioner and Respondent, v. RICARDO A. CALLEJO, Objector and Appellant. Conservatorship of the Person and Estate of ROBERT JACOB SLAKMON, a Minor. EUGENIA M. SLAKMON, as Conservator, etc., Petitioner and Respondent, v. RICARDO A. CALLEJO, Obj...
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Opinion Plaintiffs Tzevair Meraia and Vasil Thingili have appealed from the dismissal of their action to recover $15,000 damages against Fairy A. McCann and James R. Murphy for conspiracy to induce a breach of contract and interference with contract. 1 Dismissals were *241 ordered pursuant to Code of Civil Procedure section 583, subdivision (a), for want of diligen...
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*250 Opinion This is an appeal by defendants Anthony Dardarian and The Tub, Inc., a corporation, from the judgment of the superior court in an unlawful detainer action holding them liable for unpaid rental due under a lease of real property. Plaintiffs Roy T. Meredith and Mary L. Carmack, as trustees of the estate of Madison W. Meredith, leased the premises to defendants by writt...
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83 Cal.App.3d 257 (1978) 147 Cal. Rptr. 766 JAMES FORBES, Plaintiff and Appellant, v. CAMERON PETROLEUMS, INC., et al., Defendants and Respondents. Docket No. 52503. Court of Appeals of California, Second District, Division Three. July 27, 1978. *259 COUNSEL John E. Crooks and Philip R. Linsley for Plaintiff and Appellant. Thomas R. Ulmer for Defendants and Respondents. OPINION POTTER, J. Plainti...
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Opinion Defendants First Kensington Corporation (hereinafter Kensington) and Barry S. Marlin (hereinafter Marlin) appeal from the judgment of the superior court awarding plaintiff Jack M. DeCamp compensatory and punitive damages totaling $72,525 on plaintiff’s complaint for money had and received and fraud. The cause was heard as an uncontested matter after the default of defendants was t...
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Opinion This is a habeas corpus proceeding in which petitioner John S. seeks to test the validity of a juvenile court order which requires him, as a condition of probation, to spend between five and ten days custodial time in juvenile hall. *288 On March 29, 1978, a petition was filed alleging that John S. was a person within the provisions of section 602 of the Welfare and ...
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Opinion This appeal is by the Los Angeles County Public Administrator (Public Administrator) from a ruling approving assignments of portions of interests in the estate possessed by various heirs.1 *299The facts are that the estate came into existence on September 27, 1973, upon the death of testator. The Public Administrator was duly appointed and qualified as administrator on November 23, 1973....
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I reluctantly concur. While I do not agree with all the alleged deficiencies in the trial court procedures relating to the appointment and relief of counsel and the ultimate decision to permit defendant to represent himself, it does seem to me that the trial court erred somewhere along the line. If I had to put my finger on the turning point, it came on October 22, 1976, when defendant announced, ...
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83 Cal.App.3d 335 (1978) 147 Cal. Rptr. 856 THE PEOPLE, Petitioner, v. THE SUPERIOR COURTS OF GLENN COUNTY, Respondent; BRUCE LEE CROOK, Real Party in Interest. Docket No. 17164. Court of Appeals of California, Third District. July 11, 1978. *337 COUNSEL Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Paul H. D...
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83 Cal. App. 3d 346 (1978) 147 Cal. Rptr. 801 ROSS GENERAL HOSPITAL, INC., Plaintiff and Respondent, v. JEROME A. LACKNER, as Director, etc., et al., Defendants and Appellants. Docket No. 51687. Court of Appeals of California, Second District, Division One. July 28, 1978. *349 COUNSEL Evelle J. Younger, Attorney General, N. Eugene Hill, Chief Assistant Attorney General, John J. Klee, Jr., Assista...
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83 Cal. App. 3d 356 (1978) 147 Cal. Rptr. 795 LISA UVA, a Minor, etc., et al., Plaintiffs and Respondents, v. JEFFREY EVANS, Defendant and Appellant. Docket No. 51735. Court of Appeals of California, Second District, Division Five. July 28, 1978. *359 COUNSEL Ives, Kirwan & Dibble, John Brevidoro and Peter M. Fonda for Defendant and Appellant. Louis M. Niven for Plaintiffs and Respondents. OP...
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Opinion The husband appeals from portions of a judgment dividing community property and awarding attorney fees to the wife. We affirm. *390On November 12, 1975, the trial court entered an interlocutory decree of dissolution, reserving jurisdiction over child and spousal support, attorney fees and division of community property. On March 16, 1976, a final decree of dissolution was entered. On Febru...
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83 Cal. App. 3d 393 (1978) 147 Cal. Rptr. 812 In re CINDY E., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. CINDY E., Defendant and Appellant. Docket No. 19526. Court of Appeals of California, Fourth District, Division Two. July 31, 1978. *397 COUNSEL Richard A. Daily for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief ...
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Opinion Evelle J. Younger, Attorney General of the State of California, petitions this court for an extraordinary writ of mandate to compel respondent court to set aside its ex parte order of May 5, 1978, which restrains petitioner or his representatives from appearing at real party in interest’s extended term hearing or at any other extended term hearing conducted by the Community Release Board p...
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83 Cal.App.3d 413 (1978) 148 Cal. Rptr. 54 KAISER FOUNDATION HOSPITALS, PERMANENTE MEDICAL GROUP, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, CALIFORNIA SCHOOL FOR THE DEAF et al., Respondents. Docket No. 40941. Court of Appeals of California, First District, Division Four. August 1, 1978. *414 COUNSEL Airola & Ringgold and Lowell A. Airola for Petitioner. Thelen, Marrin, Johnson &...
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Opinion Brotherhood of Teamsters and Auto Truck Drivers Local 70 of Alameda County appeals from a judgment 1 vacating an award of a labor arbitrator. Claudell Roberts, who was employed by respondent Safeway Stores, Inc., as a driver, failed to complete certain work assigned to him. Safeway suspended Roberts pending an investigation, and appellant union immediately asserted...
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Opinion The People’s chief witness (a plainclothes vice officer) testified that defendant, in a remote area of Griffith Park without *Supp. 3provocation, reached out toward the vice officer, and touched the officer’s clothing which covered the officer’s genital area and that such touching was “offensive.” Defendant was arrested for violating Penal Code section 647a, was later charged with batteiy ...
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Opinion This petition for writ of mandate involves the right under federal maritime law of a person sued for negligently inflicted personal injury to recover indemnity from the employer of the injured person, where the employer has fully satisfied the obligation imposed upon it by the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA). Specifically, the petition raises the issue ...
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83 Cal. App. 3d 454 (1978) 147 Cal. Rptr. 879 NEW HAMPSHIRE INSURANCE COMPANY, Plaintiff and Appellant, v. FRED SAUER et al., Defendants and Appellants. Docket No. 50298. Court of Appeals of California, Second District, Division Five. July 31, 1978. *456 COUNSEL Bogert, Ehrmann & Halpern and David C. Bogert for Plaintiff and Appellant. Jones & Wilson and James T. Hudson for Defendants and...
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83 Cal. App. 3d 463 (1978) 147 Cal. Rptr. 884 LAWRENCE KELLAM et al., Plaintiffs and Respondents, v. MARCH FONG EU, as Secretary of State, etc., Defendant and Appellant. Docket No. 52688. Court of Appeals of California, Second District, Division Five. July 31, 1978. *465 COUNSEL Evelle J. Younger, Attorney General, Iver E. Skjeie, Assistant Attorney General, and Henry G. Ullerich, Deputy Attorney...
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*472 Opinion This appeal challenges the constitutionality of Elections Code section 7203, 1 on equal protection and due process grounds. To pinpoint the problem: the section, by its wording, prevents an independent candidate in a special election from participating in a runoff election when no candidate receives a majority vote in the primary election. The underlying facts to this appeal ...
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83 Cal. App. 3d 476 (1978) 147 Cal. Rptr. 823 THE PEOPLE, Plaintiff and Respondent, v. DAVID FRANK MAYNARICH, Defendant and Appellant. Docket No. 31052. Court of Appeals of California, Second District, Division Five. July 31, 1978. *478 COUNSEL Paul Halvonik and Quin Denvir, State Public Defenders, under appointment by the Court of Appeal, Charles M. Sevilla, Chief Assistant State Public Defender...
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Opinion Voters within the area embraced by the Belmont County Water District (hereafter District) caused to be presented to the *487San Mateo County Board of Supervisors a petition, under the District Reorganization Act of 1965 (Gov. Code, § 56000 et seq.; hereafter the Act), requesting that proceedings be initiated for the establishment of the District as a subsidiary district of the City of Belm...
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Opinion Plaintiffs sued for damages for wrongful death of their son. The general demurrer of defendant Palos Verdes Unified School District (school district) to the fourth amended complaint was *496sustained without leave to amend, and plaintiffs appeal the judgment of dismissal. We review the trial court decision under the general rule that accepts all factual allegations as true in determining w...
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Opinion J.—Respondent Roy Gene Thomas was charged by information with violating Penal Code sections 136, 137. 1 His motion to set aside the information (Pen. Code, § 995) was granted and the People appeal. *513 The People introduced the following evidence at the preliminary hearing: Respondent's mother, Louise Thomas, was on trial in Department 23 of the Los Angeles Superior Court, in con...
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Opinion Petitioners, Laurel Hills Homeowners Association, Briarcliff Improvement Association, Susan Tyler, and Marvin E. Jacobs, appeal from a judgment denying their petition for a writ of mandate that would have required respondents, the City Council of Los Angeles, the city planning commission and the city advisory agency, to vacate their approvals of a subdivision (tentative tract 2903...
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Opinion A jury returned a $77,000 verdict in favor óf plaintiff John L. Hubbard after trial of Hubbard’s complaint for damages for medical malpractice against defendant Travis H. Calvin, Jr., M.D. Calvin appeals the judgment entered on the verdict after the trial court denied his motions for mistrial and for new trial. The action arose out of Calvin’s June 1972 decision to perform, and his te...
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83 Cal.App.3d 549 (1978) 147 Cal. Rptr. 316 THE PEOPLE, Plaintiff and Respondent, v. STANLEY HUFF, Defendant and Appellant. Docket No. 16384. Court of Appeals of California, First District, Division Two. July 10, 1978. *552 COUNSEL Michael P. Thorman, under appointment by the Court of Appeal, and Thorman, Rainie, Etnire & Haptas for Defendant and Appellant. *553 Evelle J. Younger, Attorney Ge...
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83 Cal. App. 3d 563 (1978) 148 Cal. Rptr. 170 THE PEOPLE, Plaintiff and Respondent, v. EMERY SOWELLS RIDDLE, Defendant and Appellant. Docket No. 31738. Court of Appeals of California, Second District, Division Two. August 4, 1978. *566 COUNSEL Paul Arthur Turner, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assi...
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83 Cal. App. 3d 582 (1978) 147 Cal. Rptr. 915 BARBARA C. COOKE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; JACK KENT COOKE, Real Party in Interest. JACK KENT COOKE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; BARBARA C. COOKE et al., Real Parties in Interest. Docket Nos. 53345, 53246. Court of Appeals of California, Second District, Division Four...
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*597Opinion Continental Insurance Company (Continental), as subrogee of Manufacturers Hanover Trust Company (Manufacturers), sued Morgan, Olmstead, Kennedy & Gardner, Inc. (Morgan), a broker which had acted as principal or agent in purchasing United States treasury bills which had been stolen from Manufacturers. The complaint asserts several theories of liability. It claims that Morgan failed to ...
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83 Cal.App.3d 609 (1978) 147 Cal. Rptr. 921 THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF PLUMAS COUNTY, Respondent; SAMUEL R. QUINN, JR., et al., Real Parties in Interest. Docket No. 17718. Court of Appeals of California, Third District. August 7, 1978. *611 COUNSEL Evelle J. Younger, Attorney General, Garrick W. Chock and Edmund D. McMurray, Deputy Attorneys General, for Petitioner. No appea...
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Opinion Arlen Henry Walker and Andre Enos Walker appeal the judgments after a jury found each of them had committed four robberies (Pen. Code, § 211); each was found to have been armed with a firearm during two of the robberies. Arlen received two consecutive sentences; Andre, concurrent sentences. Andre and an associate robbed four different 7-11 stores on four different occasions. Arlen dro...
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Opinion This is an appeal from the granting of summary judgment in favor of the plaintiff in a declaratory relief action. The action sought a declaration that the plaintiff was covered by insurance for a fire occurring after termination of the policy where the boiler installation work allegedly causing the fire occurred during the policy period. The learned trial judge, Honorable W. G. Wa...
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83 Cal. App. 3d 651 (1978) 148 Cal. Rptr. 68 JOY GIBSON, as Administrator, etc., Plaintiff and Appellant, v. CITY OF PASADENA, Defendant and Respondent. Docket No. 51994. Court of Appeals of California, Second District, Division Four. August 9, 1978. *653 COUNSEL Fox, Gibson & Moseley, Fox & Gibson and James L. Gibson for Plaintiff and Appellant. Evelynn M. Finn, City Attorney, Hahn &...
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Opinion The City of El Cajon (El Cajon) sought a writ of mandate to compel Gerald J. Lonergan, San Diego County Auditor (Auditor), to comply with instructions given him by the Comprehensive Planning Organization of the San Diego Region (CPO) to disburse $1,165,000 to El Cajon from the Local Transportation Fund (LTF) held on deposit in the San Diego County treasury. El Cajon and CPO contend the dis...
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Opinion Appellant sought declaratory relief for unpaid salary under the terms of her written contract of employment as a probationary certificated employee with respondent Board of Trustees, Roseland School District (hereafter Board) for the period of time she had been suspended and placed on compulsory leave of absence pending resolution of charges against her, one of which ultimately resulted...
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83 Cal.App.3d 690 (1978) 148 Cal. Rptr. 203 DOROTHY CARMEN PARRA, Plaintiff and Respondent, v. THE MUNICIPAL COURT FOR THE SAN LEANDROHAYWARD JUDICIAL DISTRICT OF ALAMEDA COUNTY, Defendant and Respondent; THE PEOPLE, Real Party in Interest and Appellant. Docket No. 41724. Court of Appeals of California, First District, Division One. August 10, 1978. *692 COUNSEL Evelle J. Younger, Attorney Genera...
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83 Cal. App. 3d 698 (1978) 146 Cal. Rptr. 266 Guardianship of DIANNE L. TULLEY. EDWIN ALFRED TULLEY, as Guardian, etc., Petitioner and Appellant, v. DIANNE L. TULLEY, Objector and Respondent. Docket No. 42514. Court of Appeals of California, First District, Division Two. August 10, 1978. *700 COUNSEL Vorsatz & Vorsatz, Frank C. Vorsatz and Paul F. Vorsatz for Petitioner and Appellant. Paul N....
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*711 Opinion Appellants, owners of a large tract of property in Marin County, appeal from a judgment in condemnation after the jury determined the value of their property to be $600,000. Respondent sought to condemn the property in connection with the construction of a ferry terminal in Larkspur. The subject property consists of between 589 and 600 acres in the Town of Corte...
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83 Cal. App. 3d 718 (1978) 148 Cal. Rptr. 90 THE PEOPLE, Plaintiff and Respondent, v. ANDREW GARZA PEREZ, Defendant and Appellant. Docket No. 31095. Court of Appeals of California, Second District, Division Four. August 10, 1978. *721 COUNSEL Richard H. Levin, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assista...
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Opinion Defendant, Claudelle Graham, Jr., appeals from a judgment of conviction of assault with a deadly weapon (Pen. Code, *739 § 245, subd. (a)) that included the penalty enhancing finding that Graham used a firearm in the commission of the offense. (Pen. Code, § 12022.5.) The appeal lies. (Pen. Code, § 1237, subd. 1.) Graham contends that the trial court committed error by: (1) allowing ...
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83 Cal. App. 3d 747 (1978) 148 Cal. Rptr. 106 SOUTHERN CALIFORNIA EDISON COMPANY et al., Plaintiffs and Appellants, v. HARBOR INSURANCE COMPANY et al., Defendants and Respondents. Docket No. 50771. Court of Appeals of California, Second District, Division Five. August 11, 1978. *749 COUNSEL Tucker & Coddington, William G. Tucker, F. Leonard Sisk, Patrick L. Johnston and Richard A. Vachon for ...
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Opinion This is an appeal in a class action suit from a superior court judgment dismissing the unnamed class members. The action was commenced by plaintiffs and appellants Harry and Melanie Altman on behalf of 458 homeowners and trustors under certain deeds of trust. Defendants are Manhattan Savings Bank (Manhattan), respondent, the beneficiary under the deeds of trust, and Bradley M...
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Opinion Jacqueline Robinson, special administratrix of the estate of Verna C. Borges, deceased, appeals1 from an order denying modification of an interlocutory judgment of marital dissolution. The marriage of Nelson W. Borges and Verna C. Borges was terminated on January 3, 1975, by an interlocutory judgment which awarded to Verna $250 per month alimony. Integrated into the judgment was a marital ...
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Opinion Gerald A. Crowley appeals from a judgment denying a writ of mandate to restrain the City and County of San Francisco and its police commission and police chief from requiring appellant to respond to a departmental investigation. Crowley holds tenure in the civil service of the city and county as a police sergeant, and is the president of the San Francisco Police Officers Association. For ...
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Opinion American National Bank & Trust Company of Eau Claire, Wisconsin^ appeals from an order awarding to respondent James F. Schigur, indemnification of costs and counsel fees in the amount of $5,291.16. Appellant brought an action against defendants, who are not parties to this appeal, to foreclose deeds of trust securing promissory notes and to obtain deficiency judgments against...
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83 Cal. App. 3d 795 (1978) 148 Cal. Rptr. 114 CITY OF SACRAMENTO et al., Plaintiffs and Respondents, v. THE MUNICIPAL COURT FOR THE SACRAMENTO JUDICIAL DISTRICT OF SACRAMENTO COUNTY, Defendant and Respondent; ALEXANDRA POPE, Real Party in Interest and Appellant. Docket No. 17035. Court of Appeals of California, Third District. August 14, 1978. *796 COUNSEL Paul N. Halvonik and Quin Denvir, State ...
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83 Cal.App.3d 801 (1978) 148 Cal. Rptr. 134 MARTIN T. COBURN, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, Defendant and Respondent. Docket No. 41964. Court of Appeals of California, First District, Division One. August 15, 1978. *803 COUNSEL Steinhart, Goldberg, Feigenbaum & Ladar and John W. Hanley, Jr., for Plaintiff and Appellant. Evelle J. Younger, Attorney General, and Matthew P. ...
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83 Cal.App.3d 814 (1978) 148 Cal. Rptr. 213 GENE KAY, Plaintiff and Appellant, v. PACIFIC TELEPHONE AND TELEGRAPH COMPANY et al., Defendants and Respondents. GENE KAY, Plaintiff and Respondent, v. PACIFIC TELEPHONE AND TELEGRAPH COMPANY et al., Defendants and Appellants. Docket Nos. 38662, 41878. Court of Appeals of California, First District, Division Four. August 15, 1978. *815 COUNSEL Exelrod ...
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83 Cal. App. 3d 819 (1978) 148 Cal. Rptr. 129 CRESTWOOD LUMBER COMPANY, Plaintiff and Appellant, v. CITIZENS SAVINGS AND LOAN ASSOCIATION, Defendant and Respondent. Docket No. 41150. Court of Appeals of California, First District, Division Four. August 15, 1978. *822 COUNSEL Basye, Prior & Kavanaugh and Charles A. Pinkham, Jr., for Plaintiff and Appellant. James L. McIntosh for Defendant and ...
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Opinion Plaintiff appeals from an adverse judgment in an action for false imprisonment.1 We affirm. *830In the light of the jury verdicts, the sole issue on this appeal is whether the county may be held liable for false imprisonment by reason of the failure of the sheriff’s department more promptly to advise the deputy district attorney in charge of plaintiff’s criminal case of the existence of a ...
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Opinion By information defendant was charged with murder in violation of Penal Code section 187. It was alleged in the information that defendant used a firearm—a shotgun—during the commission of the offense, within the meaning of Penal Code section 12022.5 and Penal Code section 1203.06, subdivision (a)(1). Defendant was tried by a juiy after he entered a plea of not guilty. The jury found d...
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Opinion Following trial by jury George H. Richardson was convicted of one count of conspiracy to commit grand theft and forgery (Pen. Code, § 182, subd. 1; count l), 1 four counts of forgery (Pen. Code, § 470; counts 2, 3, 4 and 5); four counts of attempted grand theft (Pen. Code, §§ 664/487, subd. 1; counts 6, 7, 8 and 9); and one count of attempted receiving stolen property (Pen. Code, §§ 6...
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Opinion On June 18, 1973, appellant filed its action against respondent for declaratory and injunctive relief, wherein it sought to enjoin enforcement of portions of sections 2248.1-2248.25 of title 10 of the California Administrative Code and particularly section 2248.14(c) there*874of, insofar as they purport to regulate compensation which may be paid to general agents of insurers in the credit ...
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Opinion Plaintiffs and Appellants Hariy D. Eden and Nina S. Eden appeal from two judgments of dismissal entered following motions for summary judgment by defendant Maro Corporation, dba Western Laboratories (Maro) and Max Van Tine, individually, and doing business as Van Tine Construction Co. (Van Tine). Each of said motions was granted upon the ground that the Edens’ causes of action aga...
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Opinion In this proceeding by the Butte County Department of Social Welfare to have six minor children declared free from parental custody and control pursuant to Civil Code section 232, subdivisions (a)(2) and (a)(7), the trial court granted the petitions (which have been consolidated for trial) and appointed the Children’s Home Society of California as being guardian under the provisions of sec...
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Opinion The State Personnel Board appeals from an order of the superior court ordering the issuance of a peremptory writ of mandate. The writ directs the board to set aside and reconsider its decision refusing to order reinstatement of Jeanne Sheehy, an employee in the State Treasurer’s office. Sheehy appeals from that portion of the order of the superior court denying her request for payment of b...
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Opinion In this proceeding we consider the question whether an informer’s communication to an enforcement agency of the United States Treasury Department concerning a possible perpetration of a tax fraud falls within the scope of absolute privilege under the provisions of section 47, subdivision 2, of the Civil Code.1 We conclude *922for the reasons which we discuss that the statutory privilege a...
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83 Cal. App. 3d 928 (1978) 148 Cal. Rptr. 255 DAISY ENIS, a Minor, etc., Plaintiff and Appellant, v. SPECIALTY AUTO SALES et al., Defendants and Respondents. Docket No. 40569. Court of Appeals of California, First District, Division Two. August 17, 1978. *931 COUNSEL John H. Peterson and Robert A. Seligson for Plaintiff and Appellant. O'Connor, Cohn, Dillon & Barr and James L. English for Def...
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Opinion Defendant-appellant Louis Paul Solomos (hereafter appellant) appeals from a judgment of conviction following a jury verdict finding him guilty of violating Penal Code section 484 (grand theft auto). Issues involve the validity of appellant’s waiver of counsel, the propriety of certain jury instructions, the failure of the court to advise appellant of his constitutional privilege not to ...
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83 Cal.App.3d 956 (1978) 148 Cal. Rptr. 459 ROBERT G. NICHOLS, Plaintiff and Appellant, v. CANOGA INDUSTRIES, Defendant and Respondent. Docket No. 50639. Court of Appeals of California, Second District, Division One. August 17, 1978. *958 COUNSEL Belcher, Henzie & Biegensahn and J. Gary Hastings for Plaintiff and Appellant. Kindel & Anderson, Manuel S. Klausner and George L. O'Connell for...
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Opinion The People appeal the trial court’s dismissal of charges of unlawful possession of cannabis in the form of hashish (Health & Saf. Code, § 11357, subd. (a)), possession of marijuana for the purpose of sale (Health & Saf. Code, § 11359), and unlawful possession of a “black box”—a device to avoid telephone toll charges (Pen. Code, § 502.7, subd. (b)(1)). The People assert the trial court err...
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*979 Opinion Appellant has appealed from the order of the juvenile court of October 27, 1977, committing him to the California Youth Authority. Appellant’s sole contention on appeal is that the failure of the Santa Barbara Superior Court to provide a court reporter at the adjudication proceedings held on petitions filed June 10, 1975, May 7, 1976, September 16, 1977, and October 11, 1977, c...
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Opinion Defendant was an inmate at Chino on April 11, 1977. Early that morning Russell Bates, a correctional officer on duty in the Cedar Hall housing facility at Chino awakened inmate Weiner to facilitate Weiner’s getting to some sort of early duty. Weiner was assigned to bunk No. 4027; defendant was assigned to bunk No. 4030 which was three bunks away from Weiner’s on the same side of “...
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83 Cal. App. 3d 993 (1978) 148 Cal. Rptr. 165 THE PEOPLE, Plaintiff and Respondent, v. ANTHONY RICHARD MUNOZ, Defendant and Appellant. Docket No. 8681. Court of Appeals of California, Fourth District, Division One. April 13, 1978. *994 COUNSEL Appellate Defenders, Inc., under appointment by the Court of Appeal, and Barry D. Utsinger for Defendant and Appellant. Evelle J. Younger, Attorney General...
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Opinion Plaintiff appeals from a judgment confirming an award of arbitration adverse to her. We dismiss the appeal. Plaintiff filed a medical malpractice action against defendant hospital and her attending physicians and surgeons. The defendants demanded arbitration, which was ordered by the trial court. 1 The arbitration was in favor of the defendants who moved, successfully, for confirmat...
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84 Cal. App. 3d 1 (1978) 148 Cal. Rptr. 653 JULIUS S. AUSTERO, Plaintiff and Respondent, v. NATIONAL CASUALTY COMPANY OF DETROIT, MICHIGAN, Defendant and Appellant. Docket No. 17929. Court of Appeals of California, Fourth District, Division Two. August 18, 1978. *4 COUNSEL Cummins, White & Breidenbach, Breidenbach, Swainston, Yokaitis & Crispo, W.F. Rylaarsdam, James R. Robie and Howard D...
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*40 Opinion Statement of the Case and Facts Petitioner’s appeal and habeas corpus petition have been consolidated for hearing. Since we reverse the judgment, the habeas corpus petition is rendered moot. The pertinent facts are as follows: On September 9, 1977, a petition was filed in the Kern County Juvenile Court alleging that appellant, aged 17, came within Welfare and Institutions Code...
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84 Cal. App. 3d 43 (1978) 148 Cal. Rptr. 167 LEWIS G. TUCKER, Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. 4015. Court of Appeals of California, Fifth District. July 21, 1978. *45 COUNSEL Melvin W. Nitz, Public Defender, and Barbara S. James, Deputy Public Defender, for Petitioner. No appearance for Respondent. Evelle J. Younger, A...
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Opinion Mission Insurance Company (hereafter petitioner) seeks review of the opinion and decision, after reconsideration, of the Workers’ Compensation Appeals Board (hereafter the Board) sitting en banc, which reversed the decision of a workers’ compensation judge. The judge *52 had found that the multiple injuries sustained by respondent Jean Fitzgerald (hereafter applicant)...
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Opinion Steven Gonzales appeals from an order of dismissal entered following sustaining of a demurrer to his third amended petition to vacate an arbitration award. The demurrer was sustained without leave to amend for failure to state facts sufficient to constitute a cause of action. The appeal lies. (Code Civ. Proc., § 1294, subd. (b).) *61 Facts The petition sough...
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Opinion Plaintiffs filed an action seeking actual and punitive damages for fraudulent misrepresentation in the course of the campaign election concerning Proposition 14, the Agricultural Labor Relations Initiative statute. Defendants 1 demurred and the court sustained all demurrers without leave to amend, On this appeal, plaintiffs contend that their complaint states a cause of action, eith...
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*87Opinion With a perversity born of adversity, 49er Chevrolet (49er), an automobile dealer, has tried over the past four years to avoid a decision of this case on its merits. (See 49er Chevrolet v. Office of Administrative Procedure (Apr. 1, 1977) 3 Civ. 15927 [unpub. opn.].) Even in this appeal in which the merits are finally before us, 49er manages to conceal its most potent arguments in a bli...
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84 Cal. App. 3d 118 (1978) 148 Cal. Rptr. 479 THE PEOPLE, Plaintiff and Respondent, v. DAVID WALLY OTT, Defendant and Appellant. Docket No. 17015. Court of Appeals of California, First District, Division Two. August 22, 1978. *122 COUNSEL Shapiro, Shapiro & Shapiro and Carl B. Shapiro for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney G...
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Opinion This case comes before us upon the sustaining of a demurrer to the complaint without leave to amend. Plaintiff in the court below has appealed from the judgment of dismissal thereupon entered. In 1974, appellant hired respondent to make a termite inspection of certain premises that appellant was in the process of buying. The inspection and report were made in February 1974. A...
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84 Cal.App.3d 149 (1978) 148 Cal. Rptr. 312 THE PEOPLE, Plaintiff and Respondent, v. DEBORAH LYNN WOODS, Defendant and Appellant. Docket No. 8906. Court of Appeals of California, Fourth District, Division One. August 22, 1978. *151 COUNSEL Donald F. Stanton, under appointment by the Court of Appeal, and James W. Self for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkle...
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*170 Opinion Petitioner, Robert Moreno Perez, seeks a writ of habeas corpus. Following a denial by this court, petitioner applied to the California Supreme Court, and that court issued an order to show cause returnable to this court. Following his conviction by a jury of misdemeanor drunk driving (Veh. Code, § 23102, subd. (a)), petitioner was sentenced to 120 days in the Riverside County j...
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Opinion Defendant appeals from an adverse judgment in an action on an alleged contract not to compete. We reverse the judgment. Defendant was employed by plaintiff as a “sales, service and managing” employee over a period of 10 years prior to March of 1972. His employment was terminated for one day when he was rehired under a written agreement reading as follows: *178 “...
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Opinion Wilma J. Brown appeals the denial of her petition for a writ of prohibition to restrain the San Diego Municipal Court from retiying her on a charge of driving under the influence of alcohol (Veh. Code, § 23102, subd. (a)). An earlier trial resulted in a mistrial after a hung juiy. She contends Penal Code sections 1140, 1141, 1150 and 1151, requiring unanimous acquittal, violate the United ...
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Opinion The Juvenile Court, San Diego County, found its 15-year-old ward Eleanor A. to be a resident of San Bernardino County. Based upon this factual finding the juvenile court ordered the transfer of Eleanor A.’s cause to San Bernardino County. On appeal the County of San Bernardino challenges this finding and the order of transfer based thereon. San Bernardino’s appeal is authorized by statute...
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Opinion Introduction The fundamental question presented by this quiet title action is the extent of the trial court’s obligation to fix the location of an agreed boundary between contiguous owners of land where the monument fixing the line (a fence) has been removed without a survey or other marking to identify its precise location, As we shall explain, the trial court is required t...
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84 Cal. App. 3d 200 (1978) 148 Cal. Rptr. 499 GENARO RABAGO, Plaintiff and Appellant, v. UNEMPLOYMENT INSURANCE APPEALS BOARD, Defendant and Respondent; ELTRA CORPORATION, Real Party in Interest and Respondent. Docket No. 3524. Court of Appeals of California, Fifth District. August 23, 1978. *203 COUNSEL Gary S. de Malignon and Robert T. Olmos for Plaintiff and Appellant. Evelle J. Younger, Attor...
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Opinion In open court at a hearing held on August 11, 1976, at which both parties were present and represented by counsel, the trial court made an order for child support. On our own motion we ordered the record on appeal augmented to include the minutes of the hearing on that date before the Honorable Edward L. Brady. The minutes conclude: “Whereupon the Court makes its Order: Child support shall...
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*227 Opinion Defendant Locklar appeals from his conviction by a jury of two counts of burglary. By separate informations filed March 25, 1977, appellant was charged with the burglary of a motor vehicle committed on or about November 16, 1976 (information, MCR 2991; Pen. Code, § 459) and with the burglary of a residential building committed on or about January 31, 1977 (information, MCR 2988...
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*234Opinion Plaintiff Helen Hinkson, assignee of a claim of Liberty National Bank (now the Chartered Bank of London), appeals from a judgment denying recovery on an indemnity bond which had been issued to the bank by respondent Fireman’s Fund Insurance Company. We affirm the judgment. The Bond On March 11, 1971, Fireman’s Fund issued to Liberty National Bank a “Bankers Blanket Bond” on its Stan...
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84 Cal. App. 3d 239 (1978) 148 Cal. Rptr. 319 THE PEOPLE, Plaintiff and Respondent, v. MONTE DEAN BEATY, Defendant and Appellant. Docket No. 16941. Court of Appeals of California, First District, Division Four. August 24, 1978. *241 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Clifton R. Jeffers, Chief Assistant State Public Defender, Ezra Hendon, Philip A...
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Opinion Defendant appeals from a judgment ordering specific performance of an agreement to sell real property. We modify the judgment and affirm it as modified. Defendant is the owner of a tract of land in Ventura County, on part of which his home is located. The property is subject to a deed of trust in favor of Dennis and Shirley Johnson. On July 10, 1975, he agreed to sell a portion of that pr...
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84 Cal. App. 3d 251 (1978) 148 Cal. Rptr. 522 DONALD F. TARQUIN, Plaintiff and Respondent, v. COMMISSION ON PROFESSIONAL COMPETENCE et al., Defendants and Respondents; GOVERNING BOARD OF THE LOS ANGELES CITY UNIFIED SCHOOL DISTRICT et al., Real Parties in Interest and Appellants. Docket No. 52474. Court of Appeals of California, Second District, Division Four. August 24, 1978. *254 COUNSEL John H...
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*265 Opinion Plaintiff appeals from a summary judgment in favor of defendant; we affirm the judgment. The facts are not in dispute. Plaintiff was injured in an automobile accident involving his car and a vehicle driven by William Sadler. Sadler was a customer of Antelope Auto Body, a copartnership engaged in the repair of automotive vehicles. He was driving a “loaner” furnished to him by An...
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I reluctantly concur with the result. This is another case in which we are required to exalt form over substance. Penal Code section 211a1 provides: “All robbery which is perpetrated by torture or by a person being armed with a dangerous or deadly weapon ... is robbery in the first degree. . . .” In pronouncing judgment the trial court stated, “I find each of the defendants guilty of the offenses ...
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*289Opinion We issued a writ of review to consider whether the respondent Workers’ Compensation Appeals Board erred in denying reconsideration to petitioner Royal Globe Insurance Co., workers’ compensation carrier for Frank Fosdick (doing business as Ranchers Irrigation), respondent James Faulkner’s employer. Reconsideration was sought on the ground that Royal Globe had “. . . discovered new evide...
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84 Cal.App.3d 294 (1978) 148 Cal. Rptr. 430 THE PEOPLE, Plaintiff and Respondent, v. UNA ALICE BUSH, Defendant and Appellant. Docket No. 17215. Court of Appeals of California, First District, Division Two. July 27, 1978. *296 COUNSEL Moore & Bell, Edward C. Bell and Vickie Young for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Ed...
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Opinion Gordon Grow, William Girolomoni and Pamela Bareford have appealed from orders by which they were admitted to probation after a jury found each of them guilty of one count of pandering (Pen. Code, § 266i) and one count of pimping (Pen. Code, § 266h). The verdicts are well supported by evidence that appellant Grow was the owner, and with appellants Girolomoni and Bareford was involved in the...
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Opinion In this eminent domain proceeding, we consider whether the trial court properly construed defendant’s1 (Southern Pacific Transportation Company) interest in the land and correctly applied appropriate valuation standards in determining the award of damages. We have concluded that the interest taken by the state was properly categorized and correctly valued. Plaintiff, State of California, ...
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Opinion This is an appeal by plaintiff (Ebberts) from the judgment (order) of the superior court denying his petition for a writ of mandate. Ebberts had sought to compel the defendant Board of Control of the State of California (board) to act affirmatively under Penal Code sections 4900 to 4904, inclusive, providing for the payment of monetary indemnity by the state to persons erroneously convi...
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Opinion A petition was filed to declare Jon D. a ward of the juvenile court because he had: (1) violated Vehicle Code section 23102 by driving while intoxicated; and (2) resisted arrest. The petition was amended to add a third count alleging reckless driving in violation of Vehicle Code section 23103. The juvenile judge fully and completely recited the Tahl incantation, and the minor duly waived ...
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Opinion Respondent was employed by appellant as a police officer for a period of some 27 years. He was relieved from duty due to physical disability (i.e., heart disease) arising out of his employment and placed on leave of absence with full pay in accordance with Labor Code section 4850.1 After being thus accommodated for a period of approximately six months and following a determination by appel...
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Opinion The People appeal an order of the Municipal Court of the Los Angeles Judicial District dismissing a criminal misdemeanor complaint charging a violation of Health and Safety Code section 11550 (use or under influence of a controlled substance). In the course of the proceedings defendant moved to discover complaints by others against the police officers who arrested defendant, although ...
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84 Cal. App. 3d 361 (1978) 148 Cal. Rptr. 550 In re the Marriage of MARY and FREDERICK R. HERRMANN. MARY HERRMANN, Respondent, v. FREDERICK R. HERRMANN, Appellant. Docket No. 52469. Court of Appeals of California, Second District, Division Five. August 29, 1978. *362 COUNSEL William A. Pachal for Appellant. H. Andrew Wasmund for Respondent. *363 OPINION HASTINGS, J. An interlocutory judgment of d...
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Opinion This appeal raises the sole issue of whether the pleadings of a complaint against a physician requesting punitive damages for wrongful death, which failed to state a cause of action, can serve as the basis for the tort of abuse of process. For the reasons we set forth, we conclude the privilege of Civil Code section 47, subdivision 2 applies, and accordingly affirm the judgment in...
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Opinion Appellants Robert Mines and William Jenkins are medical doctors who signed leases for oil well drilling equipment with International Medical Leasing, Inc. (IML). Appellants entered the agreement for the purpose of obtaining a tax shelter. They paid rent on the leases until their tax deductions were disallowed, then they stopped. Respondent Equico Lessors, Inc., assignees of IML, b...
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*380 Opinion Appellants brought suit for wrongful death and personal injuries resulting from an automobile accident. Defendant driver of the other vehicle, Larry Christensen, had traded his old car for the 1965 Lincoln Continental which was involved in the accident. The trade was not reported to the Department of Motor Vehicles. The former owner of the vehicle, Kevin Larson, had purchased the...
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Opinion We hold here that this court has no jurisdiction to entertain an appeal from an order of a magistrate purporting to grant diversion (Pen. Code, §§ 1000-1000.5) to a defendant accused of committing a felony. A felony complaint alleged that respondent unlawfully planted and cultivated marijuana in violation of Health and Safety Code section 11358, subdivision (a). When the matter was called,...
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Opinion Burnett & Doty Development Company sued C. S. Phillips and Fidelity & Deposit Company of Maryland, alleging failure on the part of Phillips to complete contracted-for work on a residential development being constructed by Burnett & Doty. Fidelity & Deposit Company of Maryland was sued as surety on Phillips’ performance bond. Phillips cross-complained against Burnett & Doty, allegi...
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84 Cal.App.3d 393 (1978) 148 Cal. Rptr. 563 WILLIAM J. KLUBNIKIN, Plaintiff and Appellant, v. CALIFORNIA FAIR PLAN ASSOCIATION, Defendant and Respondent. Docket No. 51848. Court of Appeals of California, Second District, Division One. August 30, 1978. *394 COUNSEL Schnider & Schnider and Robert T. Schnider for Plaintiff and Appellant. Long & Levit and Myron S. Meisel for Defendant and Respondent....
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Opinion Labor Code section 4850 provides: “Whenever any . . . city fireman ... is disabled, whether temporarily or permanently, by injury or illness arising out of and in the course of his duties, he shall become entitled ... to leave of absence while so disabled without loss of salary in lieu of temporary disability payments, if any, which would be payable under [the Workers’ Compensation Act]...
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Opinion In Eleazer v. Superior Court (1970) 1 Cal.3d 847 [83 Cal.Rptr. 586, 464 P.2d 42], the California Supreme Court held that due *410process requires that the police or prosecuting authority “make such inquiries and arrangements- as are reasonably necessary to enable the prosecution and defense to locate [an informer who is a material witness whose testimony might be helpful to the defense].” ...
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Opinion Defendant was found guilty of violations of Health and Safety Code section 11352, subdivision (a) (count 1), and 11351 (count 2). With respect to each count the jury found that more than one-half ounce of a substance containing heroin was involved. Probation was denied and defendant appeals. *415 Defendant’s first three arguments are directed to the conviction on count 2. Since the ...
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Opinion Donald Eugene Edgar, Jr., and his minor children seek a writ of mandate to compel the Calaveras County Superior Court to *432 require the State of California, Department of Transportation (State), to answer interrogatories. The sole issue presented is the scope of the privilege of confidentiality granted by Vehicle Code section 20012. 1 In 1976, Donald Edgar and his children fil...
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Opinion Defendants appeal from judgments (orders of probation) entered after a jury found them guilty of violating Penal Code section 496a. They were given misdemeanor sentences. Section 496a imposes criminal penalties on junk, metal, and secondhand material dealers or collectors who fail to use due diligence to ascertain the authority of persons seeking to sell metal parts or wire of a sort or...
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*474 Opinion I. Facts Petitioner Josephine Rhodes alleges as compensable under the Workers’ Compensation Act the injuries she sustained in an automobile accident on February 8, 1977, while on the way home from her place of employment while a passenger in a coemployee’s motor vehicle. Rhodes was employed as an eligibility worker for respondent County of Los Angeles, Department of Social ...
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84 Cal. App. 3d 480 (1978) 148 Cal. Rptr. 698 THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF MERCED COUNTY, Respondent; SHERWIN LEE DURAN, Real Party in Interest. Docket No. 4147. Court of Appeals of California, Fifth District. August 31, 1978. *482 COUNSEL Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Will...
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84 Cal. App. 3d 491 (1978) 148 Cal. Rptr. 704 THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF SAN LUIS OBISPO COUNTY, Respondent; HOWARD GEORGE HOLLENBECK et al., Real Parties in Interest. HORST GUNTER BAETJER et al., Petitioners, v. THE SUPERIOR COURT OF SAN LUIS OBISPO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket Nos. 4219, 4236. Court of Appeals of California, Fifth District...
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Opinion In this extraordinary writ proceeding, the People seek mandate to compel respondent superior court to vacate its order granting the motion of defendant, real party in interest herein, to dismiss a count of attempted murder and all clauses alleging great bodily injury from an information. We have concluded that the People are entitled to relief, for the court exceeded its jurisdiction by...
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84 Cal.App.3d 515 (1978) 148 Cal. Rptr. 573 JACK GRUZEN, Plaintiff and Respondent, v. AARON P. HENRY et al., Defendants and Appellants. Docket No. 53533. Court of Appeals of California, Second District, Division Four. September 1, 1978. *516 COUNSEL Kamminga, Gerber, Wong & Oehrle, John McDermott, John O. Calmore and Arthur Lang Wong for Defendants and Appellants. Ronald L. Gruzen for Plainti...
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Opinion A petition was filed in the Los Angeles County Juvenile Court alleging that Patrick W., 13 years of age, was a minor coming within the provisions of section 602 of the Welfare and Institutions Code in that he had committed the crime of murder. The minor appeals from the order of the court sustaining the petition, declaring the minor a ward of the court and committing him to the Californ...
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Opinion Plaintiff-appellant Gary Kaslavage was swimming in a canal managed and controlled by the Buena Vista Water District (herein called Buena Vista) on March 30, 1975. The canal is traversed by an irrigation pipe owned by respondent West Kern County Water District *533 (herein called West Kern). West Kern is a local public entity within the meaning of Government Code section 900.4. When di...
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Opinion Defendant, Lonn Earl Partlow, appeals from an order granting probation 1 after a jury found him guilty of second degree burglary (Pen. Code, § 459) and three counts of possession of cocaine, amphetamines, secobarbital and tuinal (Health & Saf. Code, § 11350), and acquitted him of possessing cocaine for sale (Health & Saf. Code, § 11351). He contends that: 1) prior to th...
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Opinion This appeal is from a judgment on a cross-complaint awarding Dean W. Knight & Sons, Inc., and its sole stockholder $831,388 *563 in damages for the fraud of First Western Bank and Trust Company. In addition to an attack upon the adequacy of the trial court findings to establish materiality of the bank’s misrepresentations and to establish reliance upon the misrepresen...
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I respectfully dissent. I would affirm the judgment of conviction. The case of People v. Hitch (1974) 12 Cal.3d 641 [117 Cal.Rptr. 9, 527 P.2d 361], is distinguishable and does not apply. It is limited to material evidence going to the guilt or innocence, as charged, during a trial on the merits. Moreover, in my view it would not be in the best interest of criminal justice to extend the scope of t...
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Opinion Plaintiffs Greg and Barbara Wilcox (hereinafter collectively Wilcox) appeal from an adverse judgment declaring that they had no option to purchase a Nevada City- residence from defendant Henry Anderson. On August 28, 1973, Wilcox leased the residence from Anderson at $200 per month for one year, effective September 5, 1973. The written *595 lease included an option to buy the proper...
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*600 Opinion The question presented in this case is whether a county board of supervisors can be held responsible for conditions in the county jail which violate the minimal standards set by the California Administrative Code, absent a showing that they have failed to appropriate sufficient funds or otherwise refused to pay the cost thereof. Our answer is in the negative. A petition was fil...
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Opinion In an action to establish paternity and for child support, the jury returned a special verdict of nonpaternity. On appeal from the judgment entered in favor of respondent, appellant claims prejudicial error based upon (1) exclusion of testimony concerning inconclusive blood test results and (2) misconduct of counsel. We conclude that these claims are without merit; we affirm the judgmen...
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Opinion Since 1973 plaintiff South Coast Regional Commission (commission) has had an action pending against defendant Harold Gordon for violation of building permit requirements in a coastal conservation zone. In the phase of the cause now before us, the *615 commission appeals the trial court’s denial of civil penalties against Gordon and its refusal to award attorneys fees ...
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84 Cal. App. 3d 621 (1978) 148 Cal. Rptr. 799 NUMA GOODMAN, Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. 44354. Court of Appeals of California, First District, Division One. September 7, 1978. *622 COUNSEL James C. Hooley, Public Defender, and Harold G. Friedman, Assistant Public Defender, for Petitioner. No appearance for Respond...
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Opinion Defendant appeals from an adverse judgment in an action for declaratory relief. We affirm the judgment. Defendant, while riding on a motorcycle, was injured by a collision with an uninsured motorist. He claims to be entitled to indemnity under a policy issued by plaintiff to a man named Tench. The trial court granted summary judgment in favor of the insurer. We affirm. *652 The ca...
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Opinion This case involves a controversy between the County of Riverside and the Idyllwild County Water District (district) over a charge imposed by the district in connection with the county’s use of the district sewerage facilities. In a declaratory relief action brought by the county, the court granted the county’s motion for summary judgment and entered a judgment decreeing that the c...
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Opinion In this appeal we confront the problem of apportioning between a property owner and the holders of first and second deeds of trust encumbering the property a condemnation award resulting from the taking of a portion of the property. The trial court found the security of the trust deed holders impaired by the taking and apportioned the condemnation proceeds. Owner appeals contending the tr...
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Opinion Judges of the Municipal Court for the Central Judicial District of Marin County (hereafter sometimes Municipal Court), or some of them, have developed and sometimes engaged in a practice, in respect of persons awaiting trial for misdemeanor offenses, which is perhaps best exemplified by the following selected portions of the court’s minute orders. “Pursuant to pre-trial conference Cou...
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Opinion We issued an alternative writ of mandate to review the propriety of the trial court’s order denying petitioner’s motion for a change of venue under the relevant provisions of Code of Civil Procedure section 394, subdivision (1). We conclude that the trial court erred in failing to grant the motion changing the place for trial to a neutral county. Facts The record rev...
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Opinion This is an appeal by plaintiff Ernest J. Tarr from a judgment of dismissal of his third amended complaint following the trial court’s sustaining of a demurrer. The defendants who interposed the demurrer to plaintiff’s third amended complaint were Merco Construction Engineers, Inc. (hereinafter Merco) and Safeco Insurance Company (hereinafter Safeco). Plaintiff’s third amended complain...
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*720Opinion This is an appeal by the Controller of the State of California from an order fixing inheritance tax. (Prob. Code, § 1240.) Respondent herein is the Security Pacific National Bank, executor of the estate of Dewey William Logan. Logan died testate on November 5, 1972. His will was admitted to probate on December 11, 1972. The major asset left by Logan was a restaurant known as the “Orig...
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84 Cal. App. 3d 745 (1978) 148 Cal. Rptr. 824 THE PEOPLE, Plaintiff and Respondent, v. RICHARD ARNOLD BARNES, Defendant and Appellant. Docket No. 8795. Court of Appeals of California, Fourth District, Division One. September 11, 1978. *746 COUNSEL Appellate Defenders, Inc., under appointment by the Court of Appeal, Paul Bell and Andrew Freeman, for Defendant and Appellant. Evelle J. Younger, Atto...
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Opinion This appeal is brought pursuant to Elections' Code1 section 20339.2 In this case we hold that the erroneous placement of a voter in a precinct is not an illegality by which that voter’s ballot should be rejected. In addition, we point out the complete unworkability of section 20339 and urgently suggest that the Legislature take a hard look at that section in view of the realities of judici...
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84 Cal. App. 3d 757 (1978) 148 Cal. Rptr. 830 SAN GABRIEL VALLEY WATER COMPANY, Plaintiff and Appellant, v. CITY OF MONTEBELLO et al., Defendants and Appellants. Docket Nos. 52264, 52265. Court of Appeals of California, Second District, Division Two. April 18, 1978. *760 COUNSEL Beardsley, Hufstedler & Kemble, Burton J. Gindler and Evelyn Balderman for Plaintiff and Appellant. Robert Flandric...
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Opinion The Appellate Department of the Superior Court of the State of California for the County of Santa Barbara having certified its opinion for publication, and this court having transferred the case pursuant to California Rules of Court, rule 62(a) and having set it for oral argument pursuant to rule 62(d), and the matter having been submitted, the Court of Appeal hereby adopts the opinion of...
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Opinion In this proceeding in mandate we are called upon to determine whether an indigent litigant who obtained judgment in the municipal court is entitled, at public expense, to a transcript of the trial proceedings of that court upon his appeal from an order granting his adversary a new trial. The issue is not a settled one, for there are wide differences of judicial opinion on the extent to whi...
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*805 Opinion Appellant Worldwide Commerce, Inc. (hereinafter Worldwide) appeals from a judgment of dismissal of the Superior Court of San Mateo County, entered following the sustaining of a demurrer of defendant and respondent Fruehauf Corporation (hereinafter Fruehauf) to the second and third causes of action of the amended complaint. 1 The pleading which has given ...
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Opinion Plaintiff appeals from the judgment dismissing her second amended complaint after the court sustained the demurrer of her employer, Certainteed Corporation (Certainteed) and its compensation carrier, Travelers Insurance (Travelers) 1 without leave to amend. In yet another variation on an old theme, plaintiff attempts to hold her employer and its insurance carrier r...
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Opinion The People appeal from an order dismissing two counts of battery (counts I and II, respectively) filed against respondents Franklin and Kendrick. These counts were filed on April 27, 1977, together with a third count charging Franklin with violation of Penal Code section 653k (possession of switchblade knife). Thereafter, the pleadings were additionally amended as follows: On October 12, 1...
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*Supp. 20Opinion We hold here that a U-turn in a business district may not lawfully be made from a two-way left-turn lane. Hence we affirm defendant’s conviction of that offense. It is undisputed that while driving in a business district defendant entered into a two-way left-turn lane, slowed, made a U-tum and proceeded to a parking space at the curb. He was convicted of violating Vehicle Code sec...
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Opinion The complaint of plaintiff corporation 1 sets forth three causes of action—the first for cancellation and the second for rescission of a settlement agreement and promissory note, and the third for declaratory relief respecting defendants’ claim for compensation which had given rise to the settlement and note. Named as defendants were Adrian Wilson, Crutcher Resources Co...
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Opinion This is a proceeding to compel arbitration of claims under the uninsured motorists statute (Ins. Code, § 11580.2). Petitioner (hereinafter Rankin) an employee of Sully-Miller Contracting Company, a wholly owned subsidiary of Union Oil Company of California, was injured in separate motor vehicle accidents on May 13, 1973, and November 6, 1973, each of which occurred while Rankin wa...
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Opinion At issue is whether a buyer of real property may enforce a warranty contained in the agreement for sale notwithstanding the absence of any reference to it in the grant deed that conveyed title. We have concluded that the deed does not necessarily preclude enforcement, and that the trial court erred in making a pretrial order summarily adjudicating that issue against plaintiffs. A firs...
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84 Cal.App.3d 851 (1978) 149 Cal. Rptr. 47 THE PEOPLE, Plaintiff and Respondent, v. TONEY LEE LINDSEY, Defendant and Appellant. Docket No. 31489. Court of Appeals of California, Second District, Division Five. September 14, 1978. *853 COUNSEL Gary K. Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant ...
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Opinion Nature of Appeal: Plaintiff appeals from judgment of nonsuit in a personal injuiy action. Appellant’s eye was injured when an opponent’s sabre broke through a fencing mask worn by appellant during a fencing bout. He sued American Fencer Supply (American) as the alleged manufacturer of the sabre and Joseph Vince Company and Junice T. Mori (Vince) as the manufacturer-supplier o...
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Opinion Wesley Lee Ballard appeals from a minute order denying his petition for writ of mandate to compel the municipal court to vacate his August 29, 1975, conviction for misdemeanor drunk driving (Veh. Code, § 23102, subd. (a)) entered on his plea of guilty while in pro. per. He argues that since the record clearly indicates that prior to the acceptance of the guilty plea the municipal court mad...
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Opinion A juvenile Michael T. was declared to be a ward of the court pursuant to Welfare and Institutions Code section 602, based on the finding that he had committed the crimes of murder and attempting to intimidate a witness. He appeals contending that the evidence is insufficient to support the order. Early in the evening of February 10, 1977, one of the two clerks at Dee’s Liquor Store in...
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84 Cal.App.3d 913 (1978) 149 Cal. Rptr. 91 THE PEOPLE, Plaintiff and Respondent, v. ERNEST GORDON et al., Defendants and Appellants. Docket No. 31295. Court of Appeals of California, Second District, Division Four. September 18, 1978. *916 COUNSEL Richard H. Levin and Paul Arthur Turner, under appointments by the Court of Appeal, for Defendants and Appellants. Evelle J. Younger, Attorney General,...
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The majority opinion, in my view, errs in several respects. The taproot of this errancy is the oft-repeated conclusion that a Totten trust was not created because trustor-trustee Collins “made no deposit” in Central Federal Savings and Loan Association. This conclusion is contrary to the conceded facts, contrary to decisional law of this state and universally recognized scholarly writings. The res...
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Opinion Statement of the Case On April 18, 1977, an indictment was filed in the Superior Court of Fresno County charging appellant with 16 counts of first degree robbery (Pen. Code, §§ 211, 211a) and alleging use of a firearm, and 1 count of second degree robbery. Appellant was arraigned and pled not guilty to all counts. On May 25, 1977, appellant’s Penal Code section 995 motion was grante...
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Opinion Defendant George Weltsch was charged by information with the crime of attempted grand theft. The People’s theory at his preliminary hearing was that he did attempt (see Pen. Code, § 664), by false pretenses, to defraud certain undercover officers of money in excess of $200, with intent thus to commit grand theft as defined by Penal Code sections 484 1 and 487. 2 The superior cou...
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84 Cal. App. 3d 968 (1978) 149 Cal. Rptr. 105 JOHN C. MABEE, Plaintiff and Respondent, v. NURSERYLAND GARDEN CENTERS, INC., Defendant and Appellant. Docket No. 16069. Court of Appeals of California, Fourth District, Division One. September 19, 1978. *970 COUNSEL Klitgaard & Jones, R.J. Klitgaard, Ellis J. Horvitz and Marc J. Poster for Defendant and Appellant. Peterson, Gamer, Muns, Branton & Pri...
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Opinion In this appeal we are called upon to determine whether a paying spouse is entitled to credit on arrearages for earlier overpayments of child support made to the receiving spouse where there is no evidence of fraud, agreement by the parties or communication of the purpose of the overpayments to the receiving spouse. We hold that whether the paying spouse is entitled to credit under these ci...
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84 Cal. App. 3d 982 (1978) 149 Cal. Rptr. 119 W.H. WALKER et al., Plaintiffs and Appellants, v. SIGNAL COMPANIES, INC., et al., Defendants and Appellants. Docket No. 14858. Court of Appeals of California, Fourth District, Division One. September 20, 1978. *988 COUNSEL Gray, Cary, Ames & Frye, Terry D. Ross and William McCurine, Jr., for Plaintiffs and Appellants. Latham & Watkins, Alan N....
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*1007 Opinion This case requires we decide whether certain affirmative defenses may be raised in response to a petition to confirm an arbitration award (Code Civ. Proc., § 1285 et seq.). 1 By agreement, a dispute between petitioner, Airfloor Company of California, Inc. (Airfloor), and the Regents of the University of California (Regents) was submitted to arbitration....
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84 Cal. App. 3d 1012 (1978) 149 Cal. Rptr. 117 JOHN ALAN APPLEMAN, Plaintiff and Appellant, v. NATIONAL-BEN FRANKLIN INSURANCE COMPANY OF ILLINOIS, Defendant and Respondent. Docket No. 16471. Court of Appeals of California, Fourth District, Division One. September 20, 1978. *1013 COUNSEL David M. Garland for Plaintiff and Appellant. Arthur W. Jones for Defendant and Respondent. OPINION BROWN (Ger...
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84 Cal. App. 3d 1016 (1978) 149 Cal. Rptr. 134 THE PEOPLE, Plaintiff and Respondent, v. TYRONE R. COLEMAN, Defendant and Appellant. Docket No. 16974. Court of Appeals of California, First District, Division Three. September 21, 1978. *1018 COUNSEL Brian J. McCaffrey, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief ...
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85 Cal.App.3d 23 (1978) 149 Cal. Rptr. 152 In re DONALD R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DONALD R., Defendant and Appellant. Docket No. 17602. Court of Appeals of California, Third District. September 22, 1978. *24 COUNSEL Robert N. Chargin, Public Defender, and Garrison F. Turner, Deputy Public Defender, for Defendant and Appellant. Evell...
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Opinion We deem this appeal to be from an order of dismissal entered following the sustaining of a demurrer without leave to amend as to defendants the Salvation Army and Eagle Star Insurance Company. The appeal lies. (Code Civ. Proc., §§ 581d, 904.1, subd. (a).) Facts The facts are not in dispute. Michael James O’Sullivan alleges to have suffered personal injuries while riding as a passe...
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*68 Opinion Plaintiff, Ruth Wells, appeals from judgment in favor of defendant John Hancock Mutual Life Insurance Company (John Hancock) after John Hancock’s demurrer to her first amended complaint was sustained with leave to amend, but she failed to do so. Facts The various causes of action which plaintiff has attempted to allege against John Hancock, arise out of these basic facts: On...
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*78 Opinion This is an appeal by the Assessor of Del Norte County after denial of his petition for a writ of mandamus in the Del Norte County Superior Court. The case arises under the following circumstances. On April 1 and 2, 1976, the Del Norte County Board of Supervisors (hereafter Board), sitting as a board of equalization, held hearings on the applications of Harol...
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*94 Opinion Appellant Donald Gelman sought by writ of mandate to set aside a decision by the Los Angeles County Employees’ Retirement Association, Board of Retirement, (Board) denying him a service-connected disability pension. Appellant’s writ was denied, and this appeal followed. Appellant’s career as a social worker for the County of Los Angeles began in 1957. In 1966, appellant’s assign...
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Opinion Defendant appeals from the judgment committing him to state prison following his pleas of guilty to five counts of robbery (Pen. Code, § 211), each with use of a firearm (Pen. Code, § 12022.5) and one count of assault with a deadly weapon (Pen. Code, § 245) also with use of a firearm. Finding aggravated circumstances, the trial court imposed the upper term of four years imprisonment as to...
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Opinion Defendant, Harbor Insurance Company (Harbor), appeals from a summary judgment and a supplemental minute order with respect to attorneys’ fees, under which plaintiff, Twentieth Century-Fox Film Corporation (Fox), recovered from Harbor the principal amount of $548,138.90, together with interest thereon in the sum of *108 $53,086.52, attorneys’ fees in the total amount o...
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Opinion Plaintiff, Chester N. McNeil, appeals, following trial to the court, from a judgment for defendants, Yellow Cab Company of Lancaster and Palmdale and Arthur Calvin Scharf, in his action against them for damages for personal injuries. The appeal lies. (Code Civ. Proc., § 904.1, subd. (a).) *118 At the conclusion of the first phase of a bifurcated trial (the liability phase, see Code ...
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Opinion I The Procedural History On August 1, 1977, petitions were filed in the Juvenile Court of Los Angeles County alleging that on June 11, 1977, Jimmy A., a minor 15 years of age, and Johnny V., a minor 17 years of age, committed the felony offense of murder in violation of Penal Code section 187. The victim alleged to have been murdered was Charles Mulcahy. Both minors *124denied the allega...
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*146 Opinion Plaintiff, appellant and real party in interest, Louis F. Levy, filed an action against the City and County of Los Angeles and certain of their employees, seeking damages for the seizure, withholding and loss of personal property. All defendants moved for summary judgment, urging that the action was barred by earlier proceedings, state and federal. The motion filed o...
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Opinion Plaintiff, J. C. McConville, appeals from a judgment of the Superior Court of Sacramento County entered in favor of the defendant State Board of Equalization (Board). Plaintiff challenged a ruling made by the Board denying a refund of a use tax. Since 1968, plaintiff has engaged in the business of buying, breeding, and selling quarter horses and holds a State of California se...
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Opinion At the conclusion of a 35-day factually complex trial, the jury found defendants Peterson and Fruean guilty of all 11 counts of an information which charged them with armed robbery and kidnaping for purposes of armed robbery of Michael Duran and Librada Valenzuela (Peri. Code, §§ 211, 209); armed robbery of Timothy Cook (Pen. Code, § 211); conspiracy to commit kidnaping for purposes of ...
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Opinion Alitalia and Lufthansa appeal from a judgment awarding Trans World Airlines, Inc. indemnification against appellants for damages paid by TWA to a shipper whose goods were damaged while being shipped from Los Angeles to Pisa, Italy. Gentry-Nevada, Inc., a Nevada corporation, is engaged in the manufacturing and racing of speedboats. On June 22, 1973, Fred Miller, chief mechanic...
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Opinion In two unpublished opinions, 2 Crim. No. 19839 and 2 Crim. No. 19650, filed April 4, 1972 1 and April 20, 1972, 2 this court affirmed the conviction of defendant of kidnaping and burglaiy in one case, and two counts of first degree robbery in the other. The Supreme Court of California unanimously denied a hearing in each case. 3 The kidnaping and burglary involved the vicious ta...
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Opinion The minor, Gregory S., appeals from orders adjudicating him a ward of the court under Welfare and Institutions Code section 602, and committing him to the Youth Authority. Pending disposition of earlier adjudications in which Gregory was found to have violated Penal Code sections 242 (battery) and 148 (resisting arrest), both misdemeanors, a petition was filed on October 18, 1977, charging...
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Opinion This appeal presents a question of construction concerning the intended meaning of a testamentary direction that all specific bequests be exonerated from payment of death taxes, shifting liability therefor to the remaining estate. Upon examination of the limited record, we conclude that the trial court properly interpreted the provisions of the tax-relief clause to include gifts of specif...
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*230 Opinion Plaintiff appeals from an adverse judgment in an action for declaratory relief. 1 We affirm the judgment. Charter Insurance Agency was an agent of plaintiff Reserve Insurance Company. Defendant Frank Apps (Frank), through Charter, submitted an application for automobile liability insurance to Reserve. While that application was pending, and on April 19, 1972, Mrs. Apps (Lilli...
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Opinion In this case, we consider whether the doctrine of collateral estoppel bars the conviction of one of three coconspirators of murder in the first degree where one of his two coconspirators has previously been convicted of the lesser offense of murder in the second degree. We have concluded that where, as in the instant case, the accused’s guilt need not be predicated upon the guilt of his pr...
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Opinion Petitioner CBS seeks a writ of prohibition commanding the respondent Superior Court of Santa Clara County to set aside its *246 order denying petitioner’s motion to quash the real parties in interests’ subpoena duces tecum for media materials, and to grant the motion. The procedural background of the case is essentially as follows. Real parties in interest, David Pollard and John ...
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Opinion The question presented on this appeal is whether the Community Release Board may, pursuant to Penal Code section 1170.2, subdivision (b), impose additional penalty for multiple offenses when the trial court, pursuant to the Indeterminate Sentence Law, had ordered the sentences to be served concurrently. We hold that the board may impose the additional penalty. In April 1975, petitione...
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Opinion Claimant Gus Swaby, a seasonal farm worker, was denied unemployment benefits by respondent California Unemployment Insurance Appeals Board (Board) and denied a writ of mandate by the trial court. On appeal, Swaby asserts he was available for work under Unemployment Insurance Code section 1253, subdivision (c), and therefore eligible for unemployment benefits. Facts Swaby...
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*277 Opinion Petitioners herein are the Joint Rules Committee of the California Legislature and certain agencies in the executive branch of state government charged with responsibility for the reconstruction and restoration of the State Capitol. Real parties in interest are individuals, nonprofit organizations, and corporations for the most part connected with the construction industry. By th...
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Opinion An employer appeals from a judgment confirming an award of an arbitrator in a labor dispute case. For the *288 reason set forth below we modify the judgment and affirm it as so modified. I The employer, as a member of appellant Food Employers Council, is a party to a collective bargaining agreement with respondent union. That agreement prohibits an employer from permitting nonempl...
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Opinion In this appeal from a judgment of conviction of first degree murder and of first degree burglary with the infliction of great *296 bodily injuiy, we face the recurring problem of the timeliness of a motion to disqualify a trial judge filed pursuant to Code of Civil Procedure section 170.6. In particular, we consider the timeliness of a section 170.6 motion not made un...
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Opinion This appeal involves the narrow issue of the legal effect of an application for rehearing of a juvenile court referee’s order filed before the referee’s hearing. Based, upon our analysis of Welfare and Institutions Code section 252 and rule 1319, California Rules of Court, *305 implementing the statute, we conclude that such a premature application has no legal effect. Accordingly, we...
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Opinion These two appeals, involving virtually identical facts and issues of law, have been consolidated for consideration by this court. In No. 42367, the People and others appeal from the granting of a motion for a preliminaiy injunction by the Los Angeles County Superior Court. In No. 43812, the same parties appeal from a judgment of that court granting declaratory relief and permanent...
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Opinion Plaintiff filed an action for damages under the federal Civil Rights Act (42 U.S.C. § 1983 1 ) against named and unnamed Riverside County sheriff’s deputies and agents of the Franchise Tax Board for alleged deprivation of property without due process of law. The demurrer of the sheriff’s deputies on the ground that the complaint failed to state facts sufficient to const...
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Opinion Plaintiffs appeal from a judgment of dismissal entered after defendant’s demurrer was sustained with leave to amend and plaintiffs declined to amend. We affirm. In their complaint, plaintiffs alleged that defendant, Safeco Title Insurance Company issued to them a title insurance policy on September 4, 1974. The policy is incorporated in the complaint. In relevant part, it insured plaintif...
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Opinion The People appeal from an order of the municipal court made pursuant to section 1385 of the Penal Code after the court had declared a mistrial because of the inability of the jury to reach a verdict. We are satisfied that in making the order of dismissal the trial judge acted within the authority conferred upon him by section 1385. The amended docket (see People v. Borousk, 24 Cal.App.3d 1...
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85 Cal.App.3d 354 (1978) 149 Cal. Rptr. 453 ERDMAN CAVANAUGH et al., Plaintiffs and Appellants, v. THE STATE OF CALIFORNIA et al., Defendants and Respondents. Docket No. 15710. Court of Appeals of California, Third District. October 6, 1978. *356 COUNSEL Lois K. Meltzer, Roger Warren and John Gant for Plaintiffs and Appellants. Evelle J. Younger, Attorney General, Iver E. Skjeie, Assistant Attorn...
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*371 Opinion Defendant, Compagnie Generale Transatlantique, a corporation, dba French Line (hereafter appellant or French Line) appeals from the trial court’s judgment awarding damages in the sum of $35,422.04 together with costs in favor of plaintiff, Varían Associates (hereafter respondent or Varían). The stipulated facts reveal that on or about January 18, 1971, Varían co...
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*383 Opinion Registrar of Contractors of the Contractors’ State License Board of the State of California (Registrar) appeals from judgment in administrative mandamus ordering it to set aside and reconsider its denial of application of Housing Development Company (HDC) for a state contractor’s license. In September 1975 HDC, a limited partnership, filed an application for a s...
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*395 Opinion Claiming fraud and failure of consideration plaintiff Leopold S. Wyler sued to rescind a limited partnership agreement, under which as limited partner he invested $1.5 million in the production of a motion picture on the early life of French singer Edith Piaf. The jury found for the defendants, and the trial judge awarded them $125,000 in attorney’s fees. Wyler appea...
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Opinion Petitioner Anthony L. Barnert appeals from all portions of the interlocutory judgment of dissolution of marriage other than the order and judgment dissolving the marriage, custody of the children and visitation rights. Among the issues on appeal are the unequal division of the community property by deducting the encumbrance from the value of the house before awarding the house to the wi...
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Opinion George Martinez appeals the judgment following an order sustaining state’s demurrer without leave to amend. Richard June-Jordan Thomas was convicted on December 12, 1969, of attempted forcible rape. He was sent to Atascadero State Hospital for six months where he was designated a “Mentally Disordered Sex Offender” *434 (MDSO), not amenable to treatment. He was se...
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Opinion The People appeal from an order of dismissal entered after the trial court granted defendant’s motion to suppress evidence pursuant to section 1538.5, Penal Code. Defendant moved to suppress “Items found as a result of an illegal detention, search and arrest.” On the motion the following evidence was adduced. Officer Nixon was employed by the Los Angeles Unified School District as a s...
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Opinion The court found Walls and Jeans guilty of first degree burglary (count I) and robbery (count II), Walls guilty of assault with a deadly weapon, and Jeans guilty of assault by means of force likely to produce great bodily injury (count III) and Walls guilty of rape (§ 261, subd. 3, Pen. Code) (count IV); and made use findings as to Walls on all counts and as to Jeans on counts I and II, ...
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Opinion Defendants were charged with burglary in violation of Penal Code section 459. Following a hearing held pursuant to Penal Code section 1538.5 all items of property seized from defendants at the time of their arrest, as well as statements made by them to the police after arrest, were ordered suppressed. When the prosecution announced that it did not have sufficient evidence remaining to p...
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I respectfully disagree. If this case involved an important moral issue, I might join the majority in an interpretation of section 11580.9 of the Insurance Code which involves, as I shall demonstrate, some rather massive rewriting. Since, however, the case involves nothing more than a straightforward application of a code section which attempted to make statutory order out of decisional chaos, I p...
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Opinion Appeal is from an order granting respondent Orlando Coca relief on his petition for writ of habeas corpus. *497 On March 3, 1975, respondent was placed on three years probation for conviction of sale of a controlled substance (amphetamines) (now Health & Saf. Code, § 11379). Probation was revoked on May 28, 1976, and respondent was sentenced to state prison. On ...
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Opinion Appellants, students residing in university family housing located in Alameda County and owned by the University of California, Berkeley, sought a refund of taxes paid under protest on their possessoiy interests in the apartments arising from their leases thereto. The trial court held that the interests of the students were taxable. We hold that the possessoiy interests of the students ...
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Opinion The respondent Edith J. Johns owned one-half of the retirement benefits listed under her husband’s name (Civ. Code, § 5105). The retirement benefits were 100 percent community property and were entirely vested. Upon divorce the superior court ordered appellant Retirement Fund Trust to pay one-half the retirement directly to Edith. The former husband does not complain in the appeal but t...
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Opinion Appellants, Florintino Angulo and Roberto Perez Rodriquez, were convicted after trial by jury of a violation of Health and Safety Code section 11352, sale of heroin. *517 The Issue The sole issue to be determined in this case is whether the constitutional right to be represented by effective counsel includes the right of codefendants for whom joint counsel has been appointed to ha...
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Opinion This appeal presents, according to knowledgeable counsel, a question of first impression about the meaning of Insurance Code section 11580.9, subdivision (d), 1 where an audit, policy is involved. The trial court in the suit for declaratory judgment between insurance companies decided that the policy issued by appellant Aetna Insurance Company described and rated the vehicle involved ...
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Opinion The appellant Board of Permit Appeals of the City and County of San Francisco (hereinafter Board) and real party in interest International Hotel Tenants’ Association join in this appeal from a judgment of the San Francisco Superior Court in favor of Four Seas Investment Corporation (hereinafter Four Seas). The procedural background is as follows. On May 12, 1976, Four Seas filed a pet...
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Opinion Petitioner seeks to compel respondent Superior Court of Santa Clara to vacate its denial of his motion to quash service of process upon him, arguing that he is not subject to in personam jurisdiction in California. We issued a stay and an alternative writ of prohibition. No return to the alternative writ has been filed. The trial court found that petitioner and real party in interes...
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*538 Opinion Facts: W. Daniel Rowlands 1 was in the market for a house in August 1974. At that time he and his wife owned a home near the City of Santa Rosa (Alpine Road Property). They were looking for a substitute home in the city itself, and were attracted to an open house showing of the home of respondents Mr. and Mrs. Angell (hereafter Hermit Way Property). The Hermit Way Property, h...
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Opinion Sevkija Vrgora was the general contractor on a job for the Los Angeles City Unified School District. American Bonding Company issued his labor and material bond. They are the appellants here. “220 Electric,” not a party to this appeal, was an electrical subcontractor for Vrgora. It purchased some materials from Fidelity Sound Systems, Inc. (Fidelity), the respondent. Vrgora paid 220 Elect...
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Opinion The issues raised in this consolidated appeal and habeas corpus proceeding involve the relationship between subdivisions (f) and (ff) of section 647 of the Penal Code (hereinafter referred to as subdivision (f) and subdivision (ff)). In colloquial language the former makes it a misdemeanor to be drunk in public in such a condition that one is unable to exercise care for his or her own saf...
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Opinion This is an appeal from dismissal after a demurrer to the third amended complaint was sustained. The underlying action is (1) to *546 recover money paid by appellant to Bay Area Rapid Transit District (BARTD) to cover his share of the estimated costs of printing an election pamphlet containing candidate qualification statements and (2) seeking to bar BARTD from collecting additional pa...
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85 Cal.App.3d 553 (1978) 149 Cal. Rptr. 564 LEONARD C. HALLENDORF, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; ROBERT T. PFLIBSEN, Real Party in Interest. Docket No. 43773. Court of Appeals of California, First District, Division Two. October 16, 1978. *554 COUNSEL Casey & Casey and James N. Casey for Petitioner. No appearance for Respondent. Gassett, Perry, Frank &am...
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*565 Opinion Defendant was convicted of second degree burglaiy (Pen. Code, § 459) and was sentenced to state prison. On appeal he raises issues concerning the voluntariness of his confession, the trial court’s ruling that he could be impeached with prior convictions for burglary and attempted burglary, inadequate assistance of counsel, and instructional error. Facts Since the sufficiency ...
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Opinion Appellants, Frank Jesse Guerrero and George Valdez Guerrero, were found guilty of first degree robbery after a joint trial by the court without a jury. Appellant Frank Guerrero was found to have used a deadly weapon during the commission of the offense. Both have appealed, and each is represented by separate counsel. The grounds of each appeal and the issues raised are common to b...
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Opinion This is an appeal by the People (Pen. Code, § 1238, subd. (a)(8)) from an order dismissing an information which charged defendant with possession of heroin for sale (Health & Saf. Code, § 11351). The order was entered after the People refused to disclose the identity of a confidential informant. The following are the facts, as adduced from the evidence presented at the prelim...
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Opinion On November 3, 1976, in the City of Seaside, Dennis Volk was robbed at gunpoint while clerking at Mai’s Market. By information in count one, appellants Kenneth Edward Young, Gregory *598 Ray Pickens and one Brainard Dennis Canty were jointly charged with the robbery of Mr. Volk. On November 7, 1976, Delmar Bear was robbed at gunpoint while he was clerking at Broadway Liquors, also l...
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Opinion An amended petition filed May 9, 1977, alleged that appellant, a minor aged 17, committed murder and robbery on May 3, 1977, that in connection therewith he used a firearm and that he was a *614 person coming within the provisions of then section 602 of the Welfare and Institutions Code. Following an adjudication hearing, the court found the allegations to be true and ordered appellan...
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Opinion Petitioner Henry Callahan contends that all of his psychiatric disability is related to his industrial injury of August 21, 1969, and that the Workers’ Compensation Appeals Board (Board) erred in apportioning 50 percent of his psychiatric disability to preexisting nonindustrial causes. Respondent McDonnell Douglas Corporation (McDonnell), which was Callahan’s employer at the time ...
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*634 Opinion Richard E. appeals the judgment declaring his children David, born November 18, 1966, and Daniel, bom October 22, 1968, free from his custody and control under Civil Code section 232, subdivision (a)(7). The boys were declared dependent children of the juvenile court on July 12, 1974, and have been in foster home placement since July 19, 1974. At the time of the present hearing...
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Opinion Plaintiff, City and County of San Francisco, appeals from a judgment in favor of defendants in an action seeking to abate an alleged public nuisance. Statement of Facts The subject structure had originally been built in 1925, authorized by a permit to construct a residential, one-family, two-story building. From 1929 on the building had the separate unit in it and it had...
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Opinion Three consolidated actions which center on the claim by Sukut-Coulson, Inc. (Sukut) for money due for labor and materials furnished subdivider Allied Canon Company (Allied) in connection with the construction of a public improvement project. As a condition of development for a Benedict Canyon subdivision, Allied was required by the City of Los Angeles, under Business and Prof...
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Opinion The property owners, Robert Schultz, Sr., and Robert Schultz, Jr. (Schultz), appeal from an order after judgment granting reimbursement for certain litigation expenses pursuant to former Code of Civil Procedure section 1249.3, incurred when Schultz went to trial on the issue of valuation of their property condemned by Lake County Sanitation District, a subdivision of the County of...
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*678 Opinion We are considering two separate criminal trials of defendant McGowan. He was tried by jury on a charge of attempted robbery (violation of Pen. Code, §§ 664, 211) committed in Salinas September 17, 1976. 1 A second information charged him with burglary (violation of Pen. Code, § 459) committed October 18, 1976, at the Prunedale library in Monterey County; on this charge he waive...
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85 Cal.App.3d 684 (1978) 149 Cal. Rptr. 661 THE PEOPLE, Plaintiff and Respondent, v. HENDRICK BERNARD JOHNSON, Defendant and Appellant. Docket No. 31901. Court of Appeals of California, Second District, Division Two. October 23, 1978. *686 COUNSEL Paul Halvonik and Quin Denvir, State Public Defenders, under appointment by the Court of Appeal, Charles M. Sevilla, Chief Assistant State Public Defen...
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Opinion Imperial Irrigation District (District) appeals the judgments awarding Debra Lynn Dantice $157,000 and Vera Ann Silveira $315,400 in wrongful death actions. Dantice and Silveira were killed when the extended boom of the hayloader Dantice was using contacted a high voltage wire maintained by the District. The hay being loaded was owned by William Young who had stacked it underneath the...
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Opinion Petitioner John T. Morgan contends the board and the permanent disability specialist erred in the manner in which they rated the multiple factors of disability from his industrial injury. We hold that the board needs to consider the question further. Accordingly, we annul the present award and remand the matter to the board. I Proceedings Before the Appeals Board Mo...
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Opinion Carolyn Gaden, individually and on behalf of her two minor children (the Gadens), and Thomas J. and Vicki L. MacKenzie (the MacKenzies) appeal from the judgment in favor of the plaintiff, State Farm Mutual Automobile Insurance Company (State Farm) which (1) declared the limits of the State Farm automobile liability policy issued to the MacKenzies to be in the sum of $10,000; and (2) den...
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Opinion Petition by Anne Catherine Getty to contest the 21st codicil to the September 1958 will of her grandfather, Jean Paul Getty. *757 Petitioner does not contest the will and its first 20 codicils, but asserts that decedent lacked testamentaiy capacity when he executed the 21st codicil on 11 March 1976, or in the alternative that he executed the codicil under the undue in...
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Opinion These consolidated appeals are from summary judgments in two superior court actions which grant plaintiffs Zee Toys, Inc., and Formosa Plastics Group (U.S.A.), Inc. (Sup. Ct. No. C 179151) and Sears, Roebuck and Co. (Sup.Ct. No. C 191156) refunds of ad valorem taxes paid under protest. In the Zee case, the taxes had been collected for the benefit of defendants County of Los Angele...
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Opinion This is an appeal by O. Ray Watkins (hereinafter appellant), publisher of the Carson Bulletin, from a judgment of the superior court vacating a prior judgment adjudicating the Bulletin a newspaper of general circulation in and for the City of Carson. In September 1976, appellant filed a verified petition pursuant to Government Code1 section 6026, seeking a “judgment and Decree ascertainin...
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*803 Opinion This appeal is taken from an order of dismissal entered after Security Pacific National Bank’s (hereinafter Security) general demurrer to Fireman’s Fund Insurance Company’s (hereinafter Fireman’s) second amended complaint was sustained without leave to amend. Plaintiff-appellant Fireman’s instituted these proceedings against defendant-respondent Security, among other...
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Opinion The Insurance Commissioner of the State of California (hereinafter Commissioner), sued herein as Department of Insurance of the State of California, appeals from a judgment granting a writ of mandate. Section 1738 of the Insurance Code 1 provides for the suspension of an insurance agent’s license for any cause constituting grounds for denial of a license applicatio...
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Opinion After defendant’s conviction for second degree murder the trial court granted defendant’s petition for habeas corpus relief and ordered a new trial on the basis of incompetency of defendant’s trial counsel, Arnold Johnson. The People appeal the trial court order (Pen. Code, § 1506). We vacate the order and reinstate the conviction. Facts In the early morning hours of August 11, 1975...
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*862 Opinion Appellants Central Bank and United Communities Corporation appeal from a judgment entered in favor of respondent Transamerica Title Insurance Company after the trial court granted respondent’s motion to dismiss and sustained its demurrer to the complaint without leave to amend. Appellants contend that their causes of action were not barred by the statute of limitatio...
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Opinion This case comes before us on a petition for a writ of mandate brought by the plaintiff in the court below. The Supreme Court granted an alternative writ and then transferred the cause to this court. The facts, for purposes of this writ, were stipulated to at the trial court. They are as follows: *874 Torczyner is the president and sole shareholder of Pacific Dia...
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Opinion A minor appeals from an order finding him to be a person within the meaning of section 602 of the Welfare and Institutions Code and directing a suitable placement for him. We affirm the order. The order is based on a finding that the minor, a 16-year-old boy, had committed a lewd act on a 5-year-old neighbor girl. On this appeal he contends: (1) that the evidence does not support the findi...
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Opinion The Southern California IBEW-NECA Pension Plan, the National Electrical Benefit Fund and the International Brotherhood of Electrical Workers, (hereinafter claimants) have appealed from a judgment awarding to respondent and cross-appellant, Frances Elizabeth Johnston (hereinafter wife) one-half of the pension benefits to which respondent Clifford Albert Johnston (hereinafter husban...
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Opinion By an information filed in 1973, defendant Marilyn Davis was charged in case No. A183720, with committing the offense of fraudulently obtaining financial aid in excess of $200 from the County of Los Angeles for nonexistent children in violation of Welfare and Institutions Code section 11483. 1 Defendant entered a plea of not guilty, and then withdrew that plea and ple...
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Opinion Plaintiffs J. B. and Alice Meyser are the lessor-owners of a commercial store-front building in the City of Carlsbad. Plaintiff Morris Lackey is a tenant who operated a laundromat on the premises, The Meysers and Lackey brought separate suits against American Building Maintenance, Inc. (ABMI) to recover for fire damage to the structure and equipment. The cases were consolidated for tria...
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Opinion Appellant, SS. Peter and Paul Congregation, appeals from an order of the trial court determining that it had ceased to exist for purposes of taking a percentage share of the residuary estate of Jay Klinkner. The facts underlying the appeal are not in dispute. Jay Klinkner died on February 23, 1961, having previously executed a will in which he created an express trust of the residue of hi...
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Opinion was on a verdicts, of 15 assorted criminal offenses. His victims were five young boys, aged nine to thirteen. Each of the boys testified that Harris had induced or forced him to enter an automobile (three said it was a “white automobile”) which was then driven to a secluded building or other area where at knife point, or threat of shooting, Harris compelled him to submit to an act of so...
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Opinion These consolidated cases were transferred to this court pursuant to rules 62 and 63 of the California Rules of Court, upon certification by the Appellate Department of the Superior Court of the City and County of San Francisco that review of its decision, reversing the action of a municipal court judge sitting as a magistrate in reducing a felony burglary complaint to a...
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Opinion This appeal is from an order of the trial court granting a motion by respondent for a new trial 1 after denial of its motion for judgment notwithstanding the verdict. The verdict, on the 51st day of trial, awarded appellants $368,049 compensatory and $1,476,194 punitive damages. A cross-appeal was filed, wherein respondent United Air Lines, Inc., (hereinafter United) asks that judgmen...
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Opinion Plaintiffs, who are participants in an employees’ pension plan, brought this class action against defendant United California Bank (UCB), trustee of the plan, to obtain a judicial declaration that UCB’s 1962 amendment to the plan and its conduct pursuant to that amendment had resulted in a wrongful diversion of pension trust funds. It was also alleged that UCB had fraudulently con...
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Opinion Plaintiffs appeal from an order denying their motion for a preliminary injunction. The basic facts are not in dispute. Appellants resided on Seward Street, San Francisco, California, prior to June 1, 1977, and were registered to vote from that address in Precinct No. 6312. On June 1, 1977, appellants moved to Cabrillo Street, San Francisco, California, which is located in Precinct No....
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*1030 Opinion We have consolidated these petitions for writ of review because they involve the identical question. Each seeks reversal of a Workers’ Compensation Appeals Board (WCAB) determination that an amendment to Labor Code section 139.5 is applicable to require rehabilitation benefits to workers injured prior to the effective date of the amendment. We conclude that the WCAB...
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Opinion The question on this appeal is whether, under the doctrine of commercial frustration, the risk or burden arising from governmental action preventing use of leased property should fall on the lessor-financer or the lessee. The trial court held in favor of the lessee, Mitchell Lipsett Company, Inc., and Federal Leasing Consultants, Inc., the lessor, appealed. We affirm. *Supp. 47Appellant a...
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Opinion In this writ of review, we face the issue of the effect of the service of findings and award of the Workers’ Compensation Appeals Board (WCAB) upon the commencement of the time for filing of a petition for reconsideration where the findings and award are not served upon the compensation carrier’s attorney of record at his address specified in the answer but rather upon the carrier...
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86 Cal. App. 3d 5 (1978) 149 Cal. Rptr. 906 PACIFIC OUTDOOR ADVERTISING COMPANY, Plaintiff and Appellant, v. CITY OF BURBANK, Defendant and Respondent. Docket No. 52614. Court of Appeals of California, Second District, Division Five. November 1, 1978. *6 COUNSEL Thomas G. Baggot for Plaintiff and Appellant. Samuel Gorlick, City Attorney, and Huston T. Carlyle, Jr., Assistant City Attorney, for De...
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Opinion The City of Oakland (City) had for some time been involved in extensive litigation concerning the rights of, and claimed discrimination against, minority persons, particularly blacks, in relation to job and promotional opportunities in the City’s fire department. Minority persons comprised 51 percent of the City’s population, while they held 11.2 percent of the fire department’s u...
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Opinion The San Francisco, California, Superior Court on the motion of defendant Industrial Indemnity Company entered its order staying an action brought by the several plaintiff corporations to which we shall refer collectively as Bechtel, thus to allow the dispute to be tried in Maryland, a state found by the court to be a more convenient forum. Bechtel has appealed from the order. ...
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Opinion Defendant, Sterling Bryan Boyd, appeals 1 from a judgment of conviction entered on a jury verdict finding him guilty of second degree burglary (Pen. Code, § 460) 2 and arson (Pen. Code, § 447a). 3 He contends that his arson conviction must be reversed as his admissions were obtained in violation of his right to counsel and that certain errors and omissions in the instructions conf...
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86 Cal.App.3d 64 (1978) 150 Cal. Rptr. 39 FLOYD LEON NELSON, Plaintiff and Appellant, v. THE JUSTICE COURT FOR THE UKIAH JUDICIAL DISTRICT OF MENDOCINO COUNTY, Defendant and Respondent; THE PEOPLE, Real Party in Interest and Respondent. Docket No. 43792. Court of Appeals of California, First District, Division Four. November 2, 1978. *65 COUNSEL Rawles, Hinkle, Finnegan & Carter, E. Frank Coo...
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86 Cal. App. 3d 68 (1978) 149 Cal. Rptr. 912 DAVID SHEETS et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; HAHN DEVCORP, Real Party in Interest. Docket No. 54155. Court of Appeals of California, Second District, Division Two. November 2, 1978. *69 COUNSEL Chung & Tinberg and Sidney Tinberg for Petitioners. No appearance for Respondent. Barrett, Stearns, Collins, G...
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Opinion This petition for writ of mandate filed May 17, 1978, sought review of a trial court order denying a motion to quash service of summons and complaint. Real party in interest, County of Santa Barbara, commenced a civil action in respondent court seeking reimbursement from petitioner for welfare funds used to support a minor child, whose mother, Tracey, is a resident of Santa Barbara Co...
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Opinion The County of Santa Clara (County) appeals from a summary judgment after a court trial entered on stipulated facts granting a property tax exemption to Leland Stanford Junior University (Stanford) for the July 1, 1975-June 30, 1976, fiscal year exempting 166 acres of Stanford’s land used as a golf course. The County contends that the golf course does not qualify for the exemption ...
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86 Cal. App. 3d 87 (1978) 150 Cal. Rptr. 45 CITY AND COUNTY OF SAN FRANCISCO et al., Petitioners, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; CARLOS A. POSADA, Real Party in Interest. CITY AND COUNTY OF SAN FRANCISCO et al., Petitioners, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; KENNY MACK, Real Party in Interest. CITY AND COUNTY OF ...
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*95Opinion The Teachers’ Retirement Board and its chief executive officer appeal from a summary judgment in favor of respondent Industrial Indemnity Company, determining the status in relation to teachers’ retirement benefits of payments received by a retired teacher under a certain group accident and health insurance policy purchased by the Grossmont Union High School District. We affirm the jud...
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86 Cal.App.3d 102 (1978) 149 Cal. Rptr. 914 SIERRA BREEZE et al., Petitioners, v. THE SUPERIOR COURT OF EL DORADO COUNTY, Respondent; FRANKLIN K. LANE, Real Party in Interest. Docket No. 17620. Court of Appeals of California, Third District. November 3, 1978. *103 COUNSEL Lobner & Bull and Kneeland H. Lobner for Petitioners. No appearance for Respondent. McKinstry, Driscoll & Tarlton and ...
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Opinion Upon being arrested for drunk driving, Murphy refused to submit to any of the chemical tests required by the implied consent law which led to suspension of his driving privilege for the statutory period,. Murphy appeals from the denial below of his petition for writ of mandate. Murphy claims to earn his. living as a truck driver. The heart of his complaint is that the suspension of th...
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Opinion Raymond D. Pearsall appeals from judgment denying petition for writ of mandamus to require the Board of Administration, Public Employees’ Retirement System (PERS), to credit him with four years of military service in the computation of his city retirement benefits. Appellant served in the United States Army from 1939 to 1968. He thereafter was employed by the City of Pasadena for the perio...
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Opinion Petitioner Market Basket contends that the appeals board erred in finding respondent Juanita Allen sustained psychiatric disability as the result of her admitted industrial injury while employed by Market Basket and that if substantial evidence does support such finding then the appeals board erred in not apportioning the psychiatric disability. I. Facts On March 21...
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Opinion In this case we hold that a victim of a forcible rape who becomes pregnant as a result of that rape suffers great bodily injury. Defendant was convicted of forcible rape and first degree burglary. An allegation that he was armed with a deadly weapon was found to be true as was an allegation that he inflicted great bodily injury on another. On his plea of not guilty by reason of insani...
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Opinion National Indemnity Company has received a declaratory judgment ruling that it has no duty to defend or to indemnify the special administratrix of the estate of Wilburn Eugene Walker, deceased, on an *158 aircraft liability insurance policy. The judgment is the subject of this appeal. On May 14, 1974, Wilburn Eugene Walker, coowner with Borne of a Piper plane, too...
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Opinion Defendant, Anthony J., a 15-year-old minor, appeals from orders of the juvenile court declaring him a ward of the juvenile court, pursuant to Welfare and Institutions Code section 602, and committing him to the Youth Authority as the result of two counts of first degree murder (Pen. Code, § 187), nine counts of first degree robbery (seven in violation of Pen. Code, §§ 211, 664/211), one...
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Opinion Lumbermans Mortgage Company, Lumbermans Acceptance Company and Ian T. Allison appeal from a summary judgment determining that Security Pacific National Bank is entitled to recover *177 payments made on a $700,000 irrevocable letter of credit which Security Pacific had issued to Union Bank upon the application of Lumbermans Mortgage Company. Lumbermans Acceptance and I...
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86 Cal.App.3d 180 (1978) 150 Cal. Rptr. 156 THE PEOPLE ex rel. EVELLE J. YOUNGER, as Attorney General, etc., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; JOHN MANUEL RABACA et al., Real Parties in Interest. THE PEOPLE ex rel. JAMES M. CRAMER, as District Attorney, etc., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; JOHN MANUEL RABACA et al., Re...
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Opinion By its judgment the trial court denied a petition for a stepparent adoption. William Michael Owens, the proposed adoptive stepparent and the petitioner below, appeals. The marriage of Carolyn R. Owens and Lawrence C. Murray, the natural parents of the minor, was dissolved in 1976. The judgment of dissolution of marriage awarded custody of the minor, born October 2, 1974, to the mother...
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Opinion This is an appeal by wife from an interlocutoiy judgment dissolving the marriage and reserving jurisdiction to determine all other issues including spousal support, child support, division of community property and payment of attorney fees. Husband filed a motion to dismiss the appeal as frivolous and filed only for the purpose of delay. The motion to. dismiss was ordered on calendar fo...
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86 Cal.App.3d 237 (1978) 150 Cal. Rptr. 61 THE PEOPLE, Plaintiff and Respondent, v. MICHAEL G. DOGANIERE, Defendant and Appellant. Docket No. 10000. Court of Appeals of California, Fourth District, Division Two. November 7, 1978. *238 COUNSEL Frank L. Croteau, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assista...
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Opinion Plaintiff, Milo Conklin, appeals from a judgment of dismissal entered after the trial court sustained, without leave to amend, defendants’ demurrer to plaintiff’s amended complaint for damages. This appeal raises the question whether the complaint states a cause of action for the tort of invasion of privacy. We hold that it does and reverse the judgment. The material allegations of th...
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86 Cal.App.3d 250 (1978) 150 Cal. Rptr. 71 In re REYNALDO R., a Person Coming Under the Juvenile Court Law. T. GLEN BROWN, as Chief Probation Officer, etc., Plaintiff and Respondent, v. REYNALDO R., Defendant and Appellant. Docket No. 3706. Court of Appeals of California, Fifth District. November 8, 1978. *252 COUNSEL Frank O'Connell, under appointment by the Court of Appeal, for Defendant and Ap...
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Opinion This is the People’s appeal from an order dismissing an information upon defendant’s motion made under Penal Code section 995 upon the ground that defendant had been committed without probable cause. The information accused defendant of “the crime of grand theft, in violation of Section 487, Subdivision 1, Penal Code of California, a felony, committed as follows: That the said Sandra Faith...
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Opinion In this petition for writ of mandate, we consider the right of a defendant sued in a cause of action which permits the assessment of punitive damages to a protective order which limits use of the results of discovery of his financial condition to the purposes of the lawsuit and prohibits disclosure of that information for other purposes. We conclude that absent a showing by the proponen...
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Opinion We decide in this appeal that (1) this court may review the denial of defendant’s motion under Penal Code section 1538.5 1 made during his preliminaiy examination at the municipal court followed by his plea of guilty in that court, and (2) the evidence obtained was a direct product of an unlawful detention. We reverse the judgment. Procedural Background A ...
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Opinion Suing for the value of engineering and surveying services performed, plaintiffs recovered judgment for $9,224.97 against defendants Marshall Tilden and Marion W. Tilden. Defendants appeal. The dispositive question is whether the evidence establishes the existence of one book account or two between the parties. If only one book account existed, plaintiffs’ action was timely fi...
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*293 Opinion Roberto A. Cueva (husband) appeals from an interlocutory judgment of dissolution of marriage. He has expressly abandoned the appeal as to all issues save attorney fees. In the interlocutory judgment the court awarded the attorney for Maria P. Cueva (wife) $16,000 in addition to all amounts previously ordered, a total of $21,000. Husband contends that award was grossl...
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86 Cal. App. 3d 305 (1978) 150 Cal. Rptr. 88 NORIKO FUJIMOTO, Plaintiff and Respondent, v. WESTERN PIONEER INSURANCE COMPANY, Defendant and Appellant. Docket No. 52863. Court of Appeals of California, Second District, Division Four. September 20, 1978. *307 COUNSEL Stockdale, Peckham, Estes, Ramsey, Lawler & Iorillo and J.H. Peckham for Defendant and Appellant. George E. Maruya for Plaintiff ...
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Opinion Defendants were convicted by a jury of the commission of three felonies: (1) assault with a deadly weapon; (2) assault with a deadly weapon on a police officer; and (3) possession of a sawed-off shotgun. As to the assault on the police officer, the jury found that defendants had been armed with a deadly weapon. On appeal the defendants make three claims of error in connection ...
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86 Cal. App. 3d 320 (1978) 150 Cal. Rptr. 126 THE PEOPLE, Plaintiff and Respondent, v. WAYNE DEMPSTER BURNETT, Defendant and Appellant. Docket No. 31436. Court of Appeals of California, Second District, Division Five. November 14, 1978. *321 COUNSEL Glen Mowrer, Jr., Public Defender, Rick Savidge and G.W. Lentz, Deputy Public Defenders, for Defendant and Appellant. Evelle J. Younger, Attorney Gen...
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Opinion Opinion on rehearing. On April 16, 1976, plaintiff John Chavez, a former probationary employee with the Sacramento County Sheriff’s Department, filed a petition for writ of mandate in the superior court. He alleged that he had been released from employment as a result of discriminatory practices and had appealed such release to the Sacramento County Civil Service Commission (Commi...
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Opinion This action arises out of the Real Estate Education, Research and Recovery Act (Bus. & Prof. Code, § 10470 et seq.), 1 which under certain circumstances provides compensation to persons defrauded by real estate licensees. The liability of the Real Estate Fund (hereafter Fund) is limited to $10,000 per transaction (§ 10471), and $20,000 per licensee for causes of action ...
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Opinion Amott M. was subjected to the jurisdiction of the juvenile court upon a finding that he had possessed marijuana (Health & Saf. Code, § 11357). After a dispositional hearing he was committed to the juvenile hall for 30 days. On appeal to this court, the order of commitment was reversed with directions to render a new commitment *340 order in compliance with the princip...
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86 Cal. App. 3d 341 (1978) 150 Cal. Rptr. 207 JAN C. MENNIG, Plaintiff and Appellant, v. CITY COUNCIL OF THE CITY OF CULVER CITY et al., Defendants and Appellants. Docket No. 50077. Court of Appeals of California, Second District, Division One. November 16, 1978. *344 COUNSEL Weissburg & Aronson, Robert A. Klein, Andrew Lichtman and Gary S. Mobley for Plaintiff and Appellant. Robert S. Ogle, ...
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Opinion The People (real party in interest in the superior court) appeal from judgment 1 ordering the issuance of a writ of prohibition/mandate restraining the municipal court from proceeding in an action charging petitioner with violation of Vehicle Code section 23102, subdivision (a) (driving a vehicle while under the influence of intoxicating liquor), and ordering it to dismiss the action....
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Opinion Defendant Carlos McCaney, real party in interest, is charged with eight counts of grand theft involving automobiles. He made a motion to suppress certain evidence pursuant to section 1538.5, Penal Code. After a hearing de novo the court denied the motion except for evidence relating to a Buick and its contents. Thereafter, on petition of the People this court issued alternative writ of ...
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Opinion Petitioners Kathryn Kampner and Thomas Joseph Kampner contend that the board erred in annulling the assessment of a *378 10 percent penalty, pursuant to Labor Code section 5814, against respondent Holiday Inn, Inc. (Holiday Inn) for delay in paying the proceeds of a settlement between petitioners and Holiday Inn. 1 I. Summary of Proceedings Before t...
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Opinion Lake Forest Community Association (Association) instituted this action against County of Orange (County) to recover ad valorem property taxes paid under protest. From judgment in favor of County, Association appeals. Lake Forest is a planned residential community development (see Bus. & Prof. Code, § 11003) located in an unincorporated portion of southern Orange County. The h...
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86 Cal. App. 3d 410 (1978) 150 Cal. Rptr. 233 M.B. ZANINOVICH, INC., Plaintiff and Appellant, v. TEAMSTER FARMWORKER LOCAL UNION 946 et al., Defendants and Respondents. Docket No. 3477. Court of Appeals of California, Fifth District. November 16, 1978. *412 COUNSEL Thomas, Snell, Jamison, Russell, Williamson & Asperger, Jay V. Jory and Gerald D. Vinnard for Plaintiff and Appellant. Ormes, Farrell...
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Opinion Defendant was originally charged with violating Vehicle Code section 23103 (reckless driving, a misdemeanor). On the date the case was called for trial (Sept. 7, 1977) the defendant was in propria persona. Defendant had previously (July 14, 1977) requested a jury trial on the misdemeanor charge. The cause was called for jury trial September 7, 1977, before a commissioner. The docket for th...
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Opinion The People appeal from an order granting a motion to suppress pursuant to Penal Code section 1538.5 and from an order of dismissal which followed the suppression. We reverse, holding that respondent’s flight from lawful detention, into his home, was an exigent circumstance authorizing the officer to enter the home to complete his investigation. The facts are undisputed. Officer Carreon, an...
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Opinion This is an appeal by a lessor from a judgment in an unlawful detainer action. Facts Appellant leased the first floor of a hotel to respondent for the purpose of operating a bargain center and any use incidental thereto. Respondent agreed to comply with all laws and to not alter the premises without the lessor’s consent. Although the lessee agreed to procure his own policy of public liabil...
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Opinion This appeal from a judgment in administrative mandamus turns upon the applicable standard of judicial review of an *420 administrative determination denying a “grandfather” exemption from the requirement of State Department of Health 1 approval of a hospital expansion project. We conclude that the appropriate standard is the “substantial evidence test”; i.e...
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Opinion Appeal from an order dismissing a misdemeanor prosecution upon the ground that the defendant was not arraigned promptly after his arrest as required by Penal Code section 825. The appellate department affirmed, and, pursuant to rule 62, California Rules of Court, we ordered transfer of the case. Defendant was arrested at 7:29 p.m. on Thursday, October 13, 1977, for being under the influenc...
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86 Cal.App.3d 445 (1978) 150 Cal. Rptr. 324 THE PEOPLE, Plaintiff and Respondent, v. ALBERT YARBROW, Defendant and Appellant. Docket No. 30868. Court of Appeals of California, Second District, Division Five. November 17, 1978. COUNSEL Gillingham & Jackson and Howard W. Gillingham for Defendant and Appellant. *446 Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney G...
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*453 Opinion On June 23, 1978, we issued a writ of review, pursuant to Labor Code section 1160.8, 1 to examine petitioners’ claim that respondent board exceeded its lawful authority in several material respects in “In the Matter of Perry Farms, Inc., Respondent, and United Farm Workers Of America, AFL-CIO, Charging Party,” Case No. 76-CE-l-S, Decision and Order 4 ALRB ...
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Opinion Petitioner State of California seeks a writ of mandate to compel respondent Superior Court of Sacramento County to vacate its *478 order relieving real party in interest from the provisions of Government Code section 945.4, requiring filing of a written claim as a prerequisite to a lawsuit against a public entity. 1 The trial court concluded the requirement...
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86 Cal. App. 3d 484 (1978) 150 Cal. Rptr. 237 THE PEOPLE, Plaintiff and Respondent, v. HOWARD DAVID CASTOE, Defendant and Appellant. Docket No. 3108. Court of Appeals of California, Fifth District. November 17, 1978. *486 COUNSEL Paul Halvonik and Quin Denvir, State Public Defenders, under appointment by the Court of Appeal, Gary S. Goodpaster and Ezra Hendon, Chief Assistant State Public Defende...
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Opinion Joyce Fishman and others have appealed from a judgment upon demurrer, dismissing their petition for a writ of mandate. Appellants sought a writ to compel defendant City of Palo Alto to submit to referendum a resolution permitting construction at an apartment building of a shelter for parked cars. The petition incorporated as exhibits documents which present a full history of ...
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Opinion This is an appeal by the People of the State of California from a dismissal pursuant to Penal Code section 1385 of an information charging the defendant Josephine Jordan with welfare fraud (Welf. & Inst. Code, § 11483). Following her arraignment in superior court, defendant made a motion to dismiss the information on the ground that the state had failed to seek restitution fr...
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Opinion TRIM, Inc. appeals from a judgment entered upon the sustaining of a demurrer without leave to amend. Respondents are the County of Monterey and Donald P. Stewart, Tax Assessor of Monterey County. Appellant TRIM, Inc. is a California nonprofit corporation alleged to be the assignee of causes of action of certain named Monterey County taxpayers bringing the instant action on behalf ...
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Opinion We deal with the imposition of discipline against appellant, Dr. Willie Lee Brown, by the State Department of Health *552 (Department) and by the Board of Medical Quality Assurance, Division of Medical Quality (Board). Appellant comes to us after the superior court declined to issue writs of administrative mandate against either of the two agencies. Thus, the court su...
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Opinion Plaintiff, Nils O. Barrett, sought damages for personal injuries from defendants, Atlas Powder Company, Downey Clinch, doing business as Alpha Hardware, Olin Corporation, American Cyanamid Company, and E. I. DuPont deNemours and Company, arising out of an incident in which a 30-year-old blasting cap exploded when handled by plaintiff. The defendants moved for and were granted summ...
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Opinion Herrine F. and Stanley F., Sr., are the parents of the minors, Stanley F., Jr., bom March 7, 1969, and Glinnie F., born April 27, 1970. In 1973, upon petition of director of department of public social services (DPSS hereinafter), the minors were declared dependent children under former section 600, subdivisions (a) and (b), of the Welfare and Institutions Code (now § 300); and it...
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Opinion In this habeas corpus proceeding defendant seeks to be freed from a condition of probation imposed on him as a result of his plea of guilty to the crime of battery on a police officer. (Pen. Code, §§ 242, 243.) *579 Defendant was originally charged with a felony offense of assault by means of force likely to produce great bodily injury on a police officer. (Pen. Code, § 245, subd. (...
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Opinion Defendant, Mary H. Tourtelot, as the executrix of the estate of Fred I. Tourtelot, deceased, appeals from a summary judgment entered in favor of plaintiff, American City Bank, in an action to enforce a continuing guaranty of indebtedness executed by the decedent. *587 Plaintiff’s complaint, filed on October 27, 1976, alleged: that on December 9, 1974, decedent had ex...
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Opinion Defendant appeals from the judgment following a jury conviction upon two counts of grand theft (Pen. Code, § 487, subd. (1)) arising from the midnight appropriation of an almond sweeper and a trailer each of which were stipulated to have a value in excess of $200. Defendant’s contentions on appeal all center around the trial court’s admission into evidence of testimony given at the prel...
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*614 Opinion Petitioners are scheduled to be sentenced for a'violation of Vehicle Code section 23102, subdivision (a) (driving under the influence of intoxicating liquor). Each petitioner has admitted that he suffered one or more prior convictions of the same offense pursuant to guilty pleas entered after October 25, 1973, the date of the decision in Mills v. Municipal Court (1973) 10 Cal...
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Opinion Introduction This appeal challenges the California felony-murder rule as it applies to an unintentionally caused death during a high speed automobile chase following the commission of a nonviolent, daylight burglary of an unattended motor vehicle. Solely by force of precedent we hold that the felony-murder rule applies and respondents can be prosecuted for first degree murder. State...
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86 Cal.App.3d 630 (1978) 150 Cal. Rptr. 375 CLIFFORD N. JONES, as Guardian, etc., Plaintiff and Respondent, v. CROWN LIFE INSURANCE COMPANY, Defendant and Appellant. Docket No. 41512. Court of Appeals of California, First District, Division Three. November 22, 1978. *633 COUNSEL Hill, Corbett & Roberts and Donald B. Roberts for Defendant and Appellant. Schafer & Cochran and Philip M. Schafer for ...
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Opinion This is an appeal by plaintiff Donna Sue Tresemer from the grant of summary judgment in favor of defendant Morton Barke, M.D. The action, filed on April 12, 1976, is for damages allegedly sustained by plaintiff from a Daikon Shield intrauterine device. Plaintiff’s third amended complaint charges Dr. Barke, who inserted the device in August 1972, with willful misconduct (count one)...
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Opinion We review the trial court’s determination that, under the facts of this case, the “due and confined to” mechanical failure clause excluded from coverage plaintiff’s damage to his helicopter engine. We affirm the judgment. 1. Stipulated facts On June 8, 1975, plaintiff was the owner of a 1967 Hiller Helicopter Model FH-1100. On that date there was in full force an...
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86 Cal. App. 3d 681 (1978) 152 Cal. Rptr. 1 THE PEOPLE, Plaintiff and Appellant, v. RONALD GENE PIPITONE, Defendant and Respondent. Docket No. 15733. Court of Appeals of California, First District, Division Four. October 3, 1978. *682 COUNSEL Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, W. Eric Collins and R...
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Opinion This is a mandate proceeding under Code of Civil Procedure section 409.4 to review a superior court order expunging a notice of lis pendens pursuant to Code of Civil Procedure section 409.1. The underlying superior court action was brought by petitioners to obtain specific performance of an agreement whereby the real parties in interest (hereinafter sellers) had agreed to sell residential...
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Opinion Plaintiff Hepp brought this action against his former employer, defendant Lockheed California Company, for breach of contract and fraud. The trial court dismissed the action after granting defendant’s motion for summary judgment. Plaintiff appeals. Plaintiff was employed by defendant as a “Procurement Price Cost Administrator, Labor Grade 7,” a position which was salaried and...
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86 Cal. App. 3d 721 (1978) 150 Cal. Rptr. 530 JOHN H. DUTHIE, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, McDONNELL DOUGLAS COMPANY et al., Respondents. Docket No. 20128. Court of Appeals of California, Fourth District, Division Two. November 27, 1978. *724 COUNSEL Byhower & Petherbridge and Nicholas C. Byhower for Petitioner. Mouser, Channels & Roberts, Susan L. England and F. Wh...
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86 Cal. App. 3d 732 (1978) 150 Cal. Rptr. 423 M. HELEN REYNOLDS, Plaintiff and Respondent, v. PAUL T. REYNOLDS, Defendant and Appellant. Docket No. 42089. Court of Appeals of California, First District, Division One. November 28, 1978. *733 COUNSEL Paul T. Reynolds, in pro. per., for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, E...
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Opinion The appellants of this appeal (hereafter the accuseds), 25 in number, were separately proceeded against in the *740 municipal court by complaints charging commission of “a misdemean- or,” to wit: “A violation of section 11550 of the Health and Safety Code of California, in that said defendant did unlawfully and wilfully use and was under the influence of a controlled substance.” T...
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Opinion On appeal from an order made following entiy of a jury verdict finding defendant’s sanity had not been restored, 1 defendant puts the sole question as whether the People have a right to a jury trial in special proceedings undertaken pursuant to Penal Code section 1026a. 2 Examination of the substance of defendant’s claim supports our conclusion that the corollary and dispositive iss...
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Opinion Defendant was convicted by a jury on a charge of violating section 11350 of the Health and Safety Code (possession of *755heroin) and section 148 of the Penal Code (resisting and obstructing a peace officer). Following institution of proceedings pursuant to section 3051 of the Welfare and Institutions Code, defendant was found to be a narcotic addict and ordered committed to the Californi...
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Opinion Appellant appeals from a judgment denying his petition for a writ of mandate. In his petition for a writ of mandate in the court below, appellant sought, inter alia, an order compelling the Real Estate Commissioner to reinstate his theretofore revoked real estate salesman’s license. The Facts On September 6, 1973, appellant, the holder of a real estate salesman’s lic...
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86 Cal. App. 3d 768 (1978) 150 Cal. Rptr. 419 VIRGINIA BURKE, Plaintiff and Appellant, v. ALMADEN VINEYARDS, INC., et al., Defendants and Respondents. Docket No. 42458. Court of Appeals of California, First District, Division Four. November 28, 1978. *770 COUNSEL Walkup, Downing, Shelby, Bastian, Melodia, Kelly & O'Reilly and Daniel J. Kelly for Plaintiff and Appellant. *771 Berry & Berry...
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86 Cal. App. 3d 776 (1978) 150 Cal. Rptr. 486 THE PEOPLE, Plaintiff and Appellant, v. JOSEPH PELLEGRINO et al., Defendants and Respondents. Docket No. 17304. Court of Appeals of California, First District, Division Four. November 6, 1978. *778 COUNSEL Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, Timothy A. R...
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Opinion Appellant San Francisco Unified School District appeals from the judgment granting respondents’ petition for a writ of mandate to compel appellant to reinstate respondents as supervisors AA. Respondents are certified permanent employees of appellant. Respondent Whisman holds an elementary teaching credential and an elementary administration and supervision credential. He was ...
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Opinion Appellant, a minor, appeals from a juvenile court ruling that he came within the provisions of section 602 of the Welfare and Institutions Code, 1 by reason of violation of Penal Code section 12020 (felony possession of a rifle having a length of less than 26 inches) and section 12031, subdivision (a) (misdemeanor possession of a firearm). The referee of the San Francisco Juvenile Cou...
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86 Cal. App. 3d 809 (1978) 150 Cal. Rptr. 431 GLORIA JEAN BROWN, Plaintiff and Appellant, v. JOSEPHINE FIX, Defendant and Respondent. Docket No. 53466. Court of Appeals of California, Second District, Division Five. November 28, 1978. *810 COUNSEL Kelly & Bleuel and Michael J. Kelly for Plaintiff and Appellant. William Walsh IV and Phillip L. Banfield II for Defendant and Respondent. *811 OPI...
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Opinion John Paul Seaman appeals the judgment after he pleaded guilty to two robberies in which he used a gun. He claims the court erred in making his California sentence consecutive to any he might be serving in Florida. At the time of his plea Seaman was facing two sentences in Florida. Had his California sentence been concurrent with the Florida ones, Seaman would have been made available ...
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86 Cal. App. 3d 818 (1978) 150 Cal. Rptr. 555 FLOWERS AND SONS DEVELOPMENT CORPORATION et al., Plaintiffs and Appellants, v. THE MUNICIPAL COURT FOR THE SAN FRANCISCO JUDICIAL DISTRICT OF THE CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent; JOSEPH MUSTO ESTATE COMPANY, Real Party in Interest and Respondent. Docket No. 42357. Court of Appeals of California, First District, Division Thre...
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Opinion This is an appeal from an order in a probate proceeding that denied a petition by petitioners Theodore Encinas and *829Ofelia Encinas for a decree adjudging and declaring petitioners to be the owners of certain real property. I The Factual Background Four parcels of real property were originally owned by petitioners. On December 4, 1973, by grant deeds, petitioners conveyed these parcels...
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86 Cal.App.3d 848 (1978) 150 Cal. Rptr. 567 THE PEOPLE, Plaintiff and Appellant, v. SUE CAROL BATTEN, Defendant and Respondent. Docket No. 9736. Court of Appeals of California, Third District. November 29, 1978. *849 COUNSEL Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Willard F. Jones and Charles P. Just, D...
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Opinion The Department of Motor Vehicles (DMV) appeals the judgment granting William Cowman a writ of mandate overturning the department’s order suspending Cowman’s driver’s license for refusing to take a chemical test to determine his blood alcohol content (Veh. Code, § 13353). While Cowman was driving on Highway 111 near Covina Beach along the Saltón Sea, another vehicle, he said, ...
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Opinion Petitioner, Ray Anthony Bills, was arrested in the City of Fairfield on Januray 20, 1978, sometime after midnight. After his preliminary examination, petitioner was held to answer the information accusing him of a “Violation of Section 12020 of the Penal Code of California” in that he “did willfully, unlawfully and feloniously possess an instrument or weapon of the kind commonly known a...
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*877 Opinion Sonoma County Local Agency Formation Commission (LAFCO) and Piner-Olivet Union School District (District) appeal from orders of the superior court which (1) sustained, without leave to amend, the several plaintiffs’ general demurrers to their complaints in intervention, and (2) granted plaintiffs’ motions to strike the same complaints in intervention. The legisl...
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Opinion The People appeal from an order granting Donald Lee Shetterly’s petition for a writ of habeas corpus (see Pen. Code, § 1506). The issue is whether the Community Release Board (hereinafter the CRB), in determining Shetterly’s prison term pursuant to Penal Code section 1170.2, subdivisions (a) and (b), erred in enhancing Shetterly’s base prison term (three years for voluntary manslaughter...
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Opinion Kaiser Aetna and Deal Development Company (both partnerships) appeal from orders of the superior court quashing the service of summons on several nonresident defendants in an action brought by appellants to recover damages for fraud, breach of contract, and other alleged wrongs. At the same time the action was dismissed as to all the same defendants. The question on appeal is whet...
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Opinion These are appeals from judgments entered upon jury convictions for violations of Penal Code sections 211 (robbery), 496 (possession of stolen property), and 1203.6, subdivision (a)(1), and 12022.5 (use of a firearm during the commission of one of the robberies). On January 30, 1977, about 8:30 p.m., Melinda Duncan was walking through the parking lot of a food market at Stockton and Fr...
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Opinion This case arose out of a personal injury action filed by Thomas Archor McGuire against Dean Allen Wagner for alleged negligence of Wagner in the operation of his vehicle. Wagner answered. More than a year and a half later, pursuant to stipulation, he filed a cross-complaint against the State of California (State) and the Spink Corporation, an engineering firm, as well as against other par...
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Opinion Statement of Facts Uneedus (plaintiff), a California corporation, publishes a weekly advertising newspaper known as the “Hi-Liter.” First published in late August 1974, by early March 1975, the Hi-Liter was a profitable enterprise operating a quality advertising service in five communities in *935 Riverside County. These communities were characterized at trial as...
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Opinion This petition for writ of mandate presents the question of what constitutes “good cause” for delay beyond the 60-day speedy trial limit of Penal Code, section 1382, subdivision 2. The trial court denied a motion to dismiss because it found “good cause” existed for a delay of 29 days beyond the statutory deadline. The matter in which the trial was continued arises from the same acts as caus...
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I respectfully dissent from those portions of my colleagues’ opinions which address defendant Allen’s appeal and which conclude that the judgment of conviction must be reversed on the ground that the trial court improperly denied defendant’s motion made pursuant to Penal Code section 1538.5 (hereinafter section 1538.5) to suppress as evidence the four balloons of heroin which he spit out of his mo...
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*967 Opinion Nature Of Case: The People appeal an order dismissing a charge of manslaughter against the defendant (respondent) after he pleaded guilty to a separate charge of being a felon in possession of a firearm. Facts: On October 22, 1977, respondent went to a residence in El Rio, California. At the residence Jimmy Villa, the victim, was in the bathroom preparing a costume for a Ha...
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Opinion This is an appeal from a superior court judgment granting a writ of mandate as to respondents Yeutter and Griffiths and denying the petition for writ of mandate as to appellant Overturf. On July 22, 1976, an administrative law judge issued a proposed decision finding that cause existed for disciplinary action against Overturf, Griffiths, and Yeutter, but that no public purpose would be ...
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86 Cal. App. 3d 987 (1978) 150 Cal. Rptr. 577 THE PEOPLE, Plaintiff and Respondent, v. WAYNE LYNN PEDERSEN, Defendant and Appellant. Docket No. 9730. Court of Appeals of California, Fourth District, Division Two. November 30, 1978. *989 COUNSEL John M. Polakovic for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Daniel J. Kremer, A...
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86 Cal.App.3d 996 (1978) 150 Cal. Rptr. 561 JOYCE A. MURPHY, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and MARKET BASKET, Respondents. Docket No. 3900. Court of Appeals of California, Fifth District. November 30, 1978. *997 COUNSEL Cadoo, Tretheway, McGinn & Morgan, R. Jeffrey Stander and William P. McGinn for Petitioner. Edward F. Hustedt for Respondents. OPINION ANDREEN, J.[*] Peti...
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Opinion In this case we consider whether, in a civil paternity suit where an indigent defendant’s motion for blood tests has been granted, *1008 the trial court may properly refuse to grant the indigent’s motion to have the compensation of the expert conducting the tests paid initially by the county. We answer in the negative. Susan B., an unmarried woman, became pregnant, subsequently givi...
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Opinion This is an appeal from a second degree murder conviction in which the jury also found that the defendant was armed with a firearm (Pen. Code, § 12022; § 3024, subd. (a), repealed by Stats. 1976, ch. 1139, § 279.). The facts are these: In November of 1975, Robert Sinor lived in the town of Friant, Fresno County. A man of 61 years old, he lived alone in a small cabin and was in poor phy...
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Opinion Statement of the Case On May 13, 1976, respondent Redevelopment Agency filed a complaint in eminent domain seeking to acquire appellant’s real property *1027 located on the comer of Mono and R Streets in Fresno, California. A light industrial building on the property is used by appellant for his sheet metal business. Appellant’s answer to the complaint, filed May 28, 1976, contained...
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Opinion Defendants were charged with assault on a peace officer with a deadly weapon (count I), assault with a deadly weapon (count II), assault with intent to commit murder on Robert Hewitson (count III), assault with intent to commit murder on Robert Srery (count IV) and murder of Robert Moats (count V). The People appeal from order setting aside counts III, IV and V. The following evidence...
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Opinion Defendant Societa Di Unione E Beneficenza Italiana appeals from an order denying its motion for an award of attorney’s and *17 appraiser’s fees under former Code of Civil Procedure section 1249.3 1 following jury trial of an eminent domain action filed by the State of California to acquire its property. The thrust of the appeal is in three parts: First, the trial court erred in co...
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Opinion Appellants are teachers and representatives of teachers who, as a result of their activities and statements during a strike, had complaints and letters of reprimand placed in their personnel files. Appellants petitioned for a writ of mandate commanding the school district to remove the letters and complaints from their files. Relief was denied below and this appeal ensued. On...
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Opinion Petitioner, William E. St. John, County Clerk of the County of Orange and ex officio Clerk of the Superior Court of Orange County, seeks a peremptory writ of mandate to compel respondent superior court to vacate its adoption of, and refrain from implementing, Orange County Superior Court rule 9, section 3. On August 25, 1977, respondent court, purporting to act pursuant to au...
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*49Opinion Plaintiff sued for personal injuries sustained when she was struck by a bicycle ridden by defendant Sidney Farrington (a 14-year-old boy)1 on the premises of a shopping center owned by defendant Ambrose Properties. She was injured in the course and scope of her employment, and Unigard Insurance Group, a workmen’s compensation insurance carrier, paid to her disability indemnity and medi...
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Opinion By an information defendant and Anthony Gene Rivers were charged with the commission of robbery in violation of Penal Code section 211. It was also alleged that in the commission of the offense, defendant and Rivers used a rifle, a firearm, within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1). Defendant and Rivers were tried jointly. The jury found defendant...
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Opinion Plaintiff, Nancy J. McCreery, appeals from a summary judgment granted defendant, Eli Lilly and Company, in a product liability action. Plaintiff suffers from a benign cell disorder of the cervix described as vaginal adenosis. She alleges her condition is attributable to *80 her mother’s use of diethylstilbestrol (DES) to prevent miscarriage during pregnancy in 1953, a...
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Opinion Judgment was entered on a jury verdict in favor of Clark Equipment Company for $68,625.94. On Mastelotto, Inc.’s cross-complaint judgment was for Clark Equipment Company as cross-defendant. Mastelotto, Inc., hereafter called defendant, appeals from the judgment. Clark Equipment Company, hereafter called plaintiff, appeals from the judgment only insofar as it fails to include preju...
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Opinion These three consolidated cases come before this court upon certification by the Appellate Department of the San Mateo County Superior Court. The issue presented is whether a defendant charged with a traffic infraction can transform the charge into a misdemeanor, thereby securing the right to a jury trial, by admitting prior infraction convictions when such prior infractions are not char...
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Opinion The important date in these cases is January 1, 1978. Before the year turned appellants were charged with what is commonly known as driving under the influence or drunk driving or, more precisely, *112 violations of Vehicle Code section 23102, subdivision (a). Each appellant was also charged with at least one prior conviction of the same offense. After January 1,...
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Opinion In an information filed by the District Attorney’s office of Los Angeles County, appellant was charged with ten counts of forgery in violation of section 470 of the Penal Code and two counts of issuing a check without sufficient funds in violation of section 476a of the Penal Code. The public defender was appointed to represent defendant, and defendant entered a plea of not guilty to al...
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Opinion Plaintiff employee organization, on behalf of its member employees of defendant Palos Verdes Library District, petitioned the trial court for a writ of mandamus. The trial court granted judgment for plaintiff, compelling defendant to reinstate certain fringe benefits for long-term employees, which defendant had purported to eliminate by resolution of August 14, 1975. Defendant appeals. ...
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*144Opinion In a petition filed pursuant to Welfare and Institutions Code section 602 it was alleged in two paragraphs that appellant twice committed robbery in violation of Penal Code section 211. As to each paragraph it was also alleged that appellant was armed with a deadly weapon and used a firearm within the meaning of Penal Code sections 12022 and 12022.5. Appellant admitted the allegations ...
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Opinion Plaintiff appeals from a judgment of the superior court denying his petition for a peremptory writ of mandate in which he sought to compel the payment of certain sums of unemployment insurance benefits which had been denied to him by the defendant board. Plaintiff contends the trial court (and the board) erred in interpreting Unemployment Insurance Code section 926, which defines wage...
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*208 Opinion Defendant appeals on the ground that his motion to suppress evidence pursuant to Penal Code section 1538.5 was improperly denied. A search warrant was issued for defendant’s residence. He was arrested after officers found seven balloons containing heroin and three guns during their search for heroin and narcotic paraphernalia described in the warrant. Defendant originally plead...
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87 Cal.App.3d 215 (1978) 151 Cal. Rptr. 35 PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and CARYL E. McCLARY, Respondents. Docket No. 17744. Court of Appeals of California, Third District. December 11, 1978. *217 COUNSEL Evelle J. Younger and George Deukmejian, Attorneys General, and William J. Power, Deputy Attorney General, for Petitioner. William Denn...
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*228 Opinion We review the propriety of the trial court’s order dismissing the appellants’ complaints for want of prosecution in not bringing the actions to trial within two years after filing, as provided by Code of Civil Procedure section 583, subdivision (a). 1 The procedural events upon which the trial court based its order of dismissal are as follows: On June 27, 1974, appellants Unite...
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*241Opinion Petitioners seek, inter alia, a writ of prohibition restraining respondent court from enforcing its order directing them to prepare a reporter’s transcript of an administrative hearing and reserving jurisdiction to fix the amount to be paid for said transcript. Facts Real party is the plaintiff in an administrative mandamus proceeding pending before respondent court; petitioners are n...
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Opinion Appellant was convicted upon his guilty plea of unlawful sexual intercourse (Pen. Code, § 261, subd. 5). He also admitted a probation violation in another case. Appellant was sentenced to state prison for the upper term of three years in the instant case. On the probation violation, he was sentenced to prison for the term prescribed by law, the sentence to run concurrently with that in ...
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Opinion On October 6, 1975, a 1975 Beech Sundowner aircraft owned by Tuolumne Air Service, Inc. (TAS) crash-landed into Don *250 Pedro reservoir to avoid allegedly unmarked and improperly charted power transmission lines owned by the City and County of San Francisco. Numerous salvage attempts were unsuccessful. Turlock Irrigation District (TID) has primary management responsibility for Don Pe...
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Opinion In these consolidated appeals, we are confronted with a single issue—is Penal Code section 650a constitutional? The facts, for purposes of these appeals, are not in dispute. Appellants are Iranian nationals, students in this countiy and members of the Iranian Students’ Association (I.S.A.). It is an understatement to say that appellants and the I.S.A. are vigorously oppo...
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*270 Opinion Defendants Circle P Ranch Company, Robert Palm and Kenneth Palm (hereinafter collectively referred to as the Circle P defendants) appeal from two post-judgment orders entered against them by the trial court following a jury verdict exonerating them from liability in this action for personal injuries instituted by Clifton Smith. The litigation proceeded to trial against Cal-Tex Li...
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Opinion Iníroduction Defendant Daniel Duran Cervantes (hereinafter defendant) who requested and was granted permission to represent himself in the trial court appeals from a conviction, following a juiy trial, of rape in violation of Penal Code section 261, subdivision 2. Defendant’s guilt was established by the testimony of the victim, Catherine G., corroborated in part by her brother and ...
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Opinion Appellant Pacific Telephone and Telegraph Company appeals from a judgment of dismissal upon the sustaining of respondents’ demurrer to a petition for writ of mandate. (Code Civ. Proc., §§ 581, subd. 3; 58Id.) Appellant seeks to compel respondent Redevelopment Agency of the City of Glendale to pay relocation assistance benefits (Gov. Code, § 7260 et seq.) for appellant’s costs in r...
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87 Cal.App.3d 302 (1978) 151 Cal. Rptr. 71 THE PEOPLE, Plaintiff and Appellant, v. KENNETH RAY MILLS, Defendant and Respondent. Docket No. 17355. Court of Appeals of California, First District, Division One. December 15, 1978. *304 COUNSEL Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, Clifford K. Thompson, Jr...
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Opinion Appellants challenge the legality of searches and seizures conducted at their residence. Appellants Kaufer and Alders entered pleas of guilty to charges of violating Health and Safety Code section 11366 (maintaining a place for the distribution and use of heroin). Appellant Garrison entered pleas of no contest to a charge of violating Health and Safety Code section 11351, subdivision (a...
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*322 Opinion In California property owners usually are not personally liable for the payment of real property taxes. But there are exceptions and this case concerns the applicability of one of them. It also involves the interaction of state and federal law. The facts are simple enough. The Garcias owned real property in Santa Clara County (hereafter county). It was subject t...
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Opinion This is an appeal from an order of the Superior Court of Los Angeles County denying defendant Mike Badalian’s motion to vacate a California judgment entered on a foreign judgment rendered by the Circuit Court of the State of Hawaii. In 1975, Donel, Inc., a corporation in the State of Hawaii, purchased “video machines” and an operating franchise in Hawaii from International Vi...
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*342 Opinion We have consolidated these four cases for hearing and decision because they all involve problems of the constitutionality and application of section 4903.1 of the Labor Code. 1 That section, added by chapter 1109, Statutes of 1975, provides as follows; “The appeals board, before issuing its award or approval of any compromise of claim, shall determine...
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Opinion Defendants are residents of Lake Jennings Mobile Home Park in Lakeside, California. Plaintiffs are the owners (since April 1, 1972) of the park and are landlords of the defendants. All the leases in existence at the time plaintiffs purchased the park were set to expire on March 31, 1973. Plaintiffs informed defendants on October 26, 1972, that they planned to increase the ren...
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Opinion Quentin R. DePuy, employed by the County of San Diego, petitioned the superior court for a writ of mandate pursuant to Code of Civil Procedure section 1094.5 to review the decision of the Board of Retirement of the San Diego County Employees Retirement Association (Board). The Board had granted him a nonservice-connected disability retirement, but expressly denied the disability was ser...
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Opinion This is an appeal from the trial court’s order exercising jurisdiction in a child custody matter and modifying a prior custody decree. The pertinent facts leading to the dispute are virtually undisputed and may be stated as follows: Appellant Donald S. Kern (Father) and respondent Dana I. Kern (Mother) who were married on January 28, 1967, are the parents of Donald B. Kern (Bart) and ...
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Opinion Plaintiff appeals from a judgment of dismissal entered after an order sustaining a demurrer to her complaint. We reverse the judgment. Plaintiff was a subscriber to a health service plan operated by defendant. The policy issued to her contained an arbitration clause reading as follows: “In the event of a dispute between the Subscriber and Blue Shield, with respect to any...
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Opinion Plaintiff was reduced in rank in her employment as a nurse by the County of Los Angeles and, because there was no vacancy in the new rank, was laid off. After extensive litigation, she recovered judgment ordering her reinstatement “with full back pay, rights, privileges and benefits from the date of her wrongful reduction, including but not limited to seniority, retirement and pension bene...
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Opinion Plaintiff, Morris Corson, appeals from an adverse judgment by the court below in his action for breach of contract and fraud. The judgment on the first two causes of action only is being appealed. Facts The material facts are not in dispute. In October 1971 Corson learned that the Los Angeles Hyatt House (Hyatt) was for sale. Corson, who was interested in leasing the Hya...
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Opinion We are called upon in this habeas corpus proceeding to decide whether section 1737 of the Welfare and Institutions Code 1 applies *431 to all commitments to the Youth Authority or only to those from adult court. Petitioner was adjudicated a ward of the juvenile court within the meaning of section 602. On May 11, 1978, he was ordered committed to the Yo...
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Opinion Appellants comprise a group of homosexual males who instituted civil litigation on their own behalf and all others similarly situated against respondent and its agents, dba The Club Baths of San *437 Francisco, a public bath house patronized largely by homosexual men. The complaint seeks damages for claimed violations of the Unruh Civil Rights Act (Civ. Code, §§ 51 an...
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Opinion Plaintiff Barry Anderson appeals from a judgment of the San Mateo County Superior Court which denied him a writ of mandate to compel defendant San Mateo Community College District and its governing board (hereafter collectively referred to as the District) to reinstate him as a Contract I instructor and to take no further action against him except in compliance with the rules and ...
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Opinion These four cases have been consolidated for purposes of appeal. The question common to all of them is the validity of the rules of the South Coast Air Quality Management District (SCAQMD). (The *Supp. 6predecessor agency was the Air Pollution Control District.) (APCD.) The procedural posture of the cases is somewhat different and should be set forth before discussing the common issue. Pr...
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Opinion Defendant was charged with driving a motor vehicle upon a public highway while under the influence of intoxicating liquor, *Supp. 21in violation of Vehicle Code section 23102, subdivision (a). Defendant’s arraignment was continued twice at his request and with proper express waivers of time. He was represented by a deputy public defender at all times. On October 17, 1977, while not in cust...
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Opinion This cause having been submitted for decision, and fully considered, judgment is ordered as follows: It is ordered and adjudged that the judgment made and entered in the Municipal Court for the South Bay Judicial District, County of Los Angeles, State of California, in the above entitled cause be and the same is hereby affirmed. Appellant was convicted of violating Health and Safety Code s...
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Opinion Defendant appeals from a judgment of conviction following a court trial. He was found guilty of violating a county ordinance which forbids the riding of a motorcycle on an open easement within Catalina Island. (Ord. No. 10309, adopted July 13, 1971, amended by Ord. No. 11299 on Feb. 3, 1976.) The appeal is on a settled statement where the grounds of appeal are stated. The riding of a motor...
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*454 Opinion Petitioner Beltone Electronics Corporation is one of several defendants in an action filed in the Superior Court of Santa Cruz County. On April 14, 1978, petitioner transmitted to the Clerk of the Superior Court of Santa Cruz County certain interrogatories which had been propounded by the plaintiffs to the petitioner and petitioner’s written responses thereto, with a request to t...
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Opinion Plaintiff Klamath-Orleans Lumber, Inc., doing business as Baybarz Binder Company, brought this action against defendants Clarence and Hilda Miller for an injunction and damages for unfair business competition. The Millers are former employees of plaintiff who went into business for themselves and solicited many of plaintiff’s customers. The equitable issues relating to the injunction we...
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Opinion The Board Administration (Board) of the Public Employees’ Retirement System of the State of California (PERS) appeals from a judgment of the Sacramento County Superior Court issuing a peremptory writ of mandamus in favor of plaintiff John S. Snow. The board contends that a State Board of Control award to a retired civil service employee for work performed above the class of employment to ...
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*497 Opinion Plaintiffs, crew members of the purse seiner fishing vessel J/V Lucky Strike, appeal a judgment of dismissal after the trial court sustained the demurrer of the vessel’s manufacturers, defendants Campbell Industries and San Diego Marine, without leave to amend. Plaintiffs’ five-count complaint against the manufacturers sought money damages for the cre...
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*504 Opinion Scott T. Barnes appeals the denial of his petition for a writ of mandate to direct the Personnel Department of the City of El Cajon (Department) to set aside its order dismissing him from the police force. Barnes was a probationary officer with the City of El Cajon (City) when he arrested Brant Hokanen. Hokanen sued City for false arrest. After investigation Barnes was dismisse...
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*509 Opinion Plaintiffs appeal a judgment dismissing their action after a general demurrer to the second amended complaint had been sustained without leave to amend. The demurrer and ruling were based upon the running of the statute of limitations on plaintiffs’ wrongful death action. Plaintiffs are the surviving spouse and children of Julian Perea Gomez, Sr., who died on February 5, 1976, ...
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Opinion Ruby Faye Sangiolo appeals the judgment dismissing her complaint after the demurrer by her former husband, Leo George, was sustained without leave to amend. *513 Interlocutory and final judgments dissolving the couple’s marriage had been entered in October 1970. At that time Leo was on active duty with the Navy, having accrued 25 years, 8 months of service. Both parties knew of thes...
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*517 Opinion The trial court found 81-year-old Charles C. Munson to be “gravely disabled” within the provisions of the conservatorship chapter of the Lanterman-Petris-Short Act (LPS). (Welf. & Inst. Code, § 5350 et seq.) Munson was “disoriented to time, place and circumstance.” His diagnosis was (1) chronic obstructive pulmonary disease, (2) congestive heart failure, stable, and ...
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Opinion Defendants sought to exercise the due-on-sale clause in a deed of trust encumbering improved real property in Brea. Plaintiffs instituted this action to enjoin defendants from attempting to accelerate the due date of the unpaid balance of the trust deed loan and from taking steps to sell the property at trustee’s sale and for declaratory relief. The trial court found that the tran...
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Opinion The People have appealed the trial court’s order dismissing criminal charges against respondent. The charges were the unlawful possession of explosives in violation of Penal Code sections 12312 and 12303.3, possession of a sawed-off shotgun in violation of Penal Code section 12020, subdivision (a) and ex-felon in possession of a concealable firearm in violation of Penal Code section 120...
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Opinion In this dissolution action, petitioner (hereafter wife) seeks a writ of mandate to compel respondent court to set aside its order *546granting the motion of real party in interest (hereafter husband) for an order directing the production of all medical records in the possession of all physicians who had treated wife during the course of a 13-year marriage, including records “from any sourc...
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Opinion By information defendant Willard Dean Park (respondent) was charged with two counts of grand theft in violation of Penal Code, section 487, and one count of selling securities without registration in violation of Corporations Code, 1 section 25110. The background facts giving rise to the criminal charges may be summarized as follows: In December 1973, Sylvia W. Sul...
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Opinion This is an appeal by the People from an order 1 of the Superior Court of Monterey County granting respondent Leroy Martin’s motion to dismiss the allegation of prior convictions of felonies in an amended information. We decide that when a conviction is affirmed but remanded to the trial court to give the People an opportunity to prove the . alleged “priors,” that upon the filing of th...
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87 Cal.App.3d 582 (1978) 151 Cal. Rptr. 133 BETTY STEINBERG, Plaintiff and Appellant, v. UNEMPLOYMENT INSURANCE APPEALS BOARD, Defendant and Respondent; AMERICAN MAILING SERVICE, INC., Real Party in Interest and Respondent. Docket No. 53093. Court of Appeals of California, Second District, Division Five. December 20, 1978. *583 COUNSEL Kenyon F. Dobberteen, Manuel Monguia and Sandra Pettit for Pl...
Views: 3
Opinion Richard W. Lynn purportedly appeals the order denying modification of his sentence. He sought credit for time served in federal custody and vacation of the provision he submit to searches without a warrant. Lynn was arrested for selling controlled substances by federal officers and his probation, granted after a conviction in federal court, was revoked. He was sentenced to a year and ...
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Opinion Dan Wiebe, the executor, appeals from a judgment entered on a special verdict revoking probate of the purported June 11, 1975, will of Anna D. Clegg on the petition of her surviving heirs at law.1 He contends that there was insufficient substantial evidence to support *598the verdict and judgment as to lack of sufficient testamentary capacity and undue influence of Lincoln Glen Manor for S...
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Opinion This class action suit is before us on a petition for a writ of mandate, prohibition, or other appropriate writ brought by plaintiffs below to direct the trial judge to withdraw his February 16, 1978, order, which provided that unnamed members of plaintiff class should answer certain interrogatories propounded by respondents (defendants in the trial court) and served upon counsel ...
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Opinion By an amended complaint, plaintiff Richard Rodriguez sought recovery for personal injuries sustained while he was working on the premises of McDonnell Douglas Corporation (hereinafter, McDonnell). Named as defendants were McDonnell, its general contractor—Norman Engineering Company (hereinafter Norman), a subcontractor—Bethlehem Steel Corporation (hereinafter Bethlehem), Cox Broth...
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Opinion Appellant has appealed from a judgment of conviction for violations of section 288a, subdivision (c) of the Penal Code (four counts), section 288a, subdivision (d) of the Penal Code (four counts) and section 288a, subdivision (e) of the Penal Code (four counts). Appellant was also charged with having previously committed three felonies. Each prior felony allegation was admitted by appellan...
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87 Cal.App.3d 696 (1978) 151 Cal. Rptr. 169 LOUIS R. KENWORTHY, as Executor, etc., Plaintiff and Appellant, v. ALICE V. HADDEN et al., Defendants and Respondents. Docket No. 16154. Court of Appeals of California, Third District. December 21, 1978. *697 COUNSEL Roy A. Weaver, Eric R. LaForge and Jones, Lane, Weaver & Webster for Plaintiff and Appellant. Bush, Ackley, Milich & Hallinan, Leo...
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Opinion Police officers, including-Officers Beltran and Emerson of the Wasco Police Department, responded to a call regarding several juveniles who were allegedly sniffing glue or paint in the alley in the 1100 block of E Street in Wasco. When Officer Beltran arrived at the alley, he saw a group of several young boys in one of the back yards which faced the alley. Some of the boys were sitting,...
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Opinion In this action for declaratory and injunctive relief, 1 the only question presented is whether the trial court here properly concluded, as a matter of law, that the April 22, 1970, sale of the business by Balesteri to John F. and Geraldine Holler 2 (Holler) included the name of the business for a 10-year period. For the reasons set forth below, we have concluded that the judgment mu...
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Opinion Plaintiff Eugene Brody appeals from a judgment entered pursuant to a directed verdict in favor of defendants Francis Mantalbano, Frances Montalbano, Virginia Westphal, Doris Scobey and Fred J. Scobey as to all causes of action which included, inter alia, defamation, malicious prosecution, conspiracy to interfere with prospective advantage and to defame, and intentional infliction ...
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Opinion Petitioner Johns-Manville Products Corporation (JohnsManville) contends the appeals board 1 erred in: (1) awarding the injured employee further medical care for his industrial back condition; (2) failing to properly “apportion” the injured employee’s lung disability to his prior back disability, and (3) refusing to refer the injured employee to an independent medical examiner on medic...
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Opinion Plaintiff appeals from a judgment of dismissal entered after the trial court sustained, without leave to amend, defendant County of Sacramento’s demurrer to his complaint for the recovery of damages for injuries resulting from a swine flu immunization received at a county-provided inocculation center. Plaintiff seeks reversal of the judgment on the ground that Government Code sect...
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*764Opinion In Stanson v. Mott (1976) 17 Cal.3d 206, 209-210 [130 Cal.Rptr. 697, 551 P.2d 1], our Supreme Court ruled that “. . . at least in the absence of clear and explicit legislative authorization, a public agency may not expend public funds to promote a partisan position in an election campaign . . . .” Relying in part upon Stanson, plaintiffs challenge the expenditure of public funds by th...
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Opinion In an information as amended petitioner was charged with burglary (Pen. Code, § 459) 1 and forcible rape (§ 261, subd. 3)—both alleged to have occurred on December 18, 1975—and five prior burglary convictions. On March 8, 1976, he pleaded guilty to first degree burglaiy and admitted two prior burglary convictions, a California conviction which occurred April 15, 1969, and a Texas co...
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*790Opinion As a result of an incident which occurred on October 14, 1976, petitioner pleaded guilty to one count of voluntary manslaughter (Pen. Code, § 192, subd. I)1 and was sentenced for the term prescribed by law for that offense under the then existent Indeterminate Sentence Law (ISL). Though it is conceded that petitioner, used a deadly weapon, a knife, in the commission of the offense, the...
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Opinion We are petitioned for a writ of mandate following the finding of the Superior Court of Santa Clara County (Marc B. Poche, Judge) that two inaccurate statements in affidavit supporting search warrant were reasonable errors made in good faith and therefore did not have to be excised pursuant to the holding of Theodor v. Superior Court (1972) 8 Cal.3d 77, 100-101 [104 Cal.Rptr. 226, 50...
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87 Cal.App.3d 832 (1978) 151 Cal. Rptr. 239 THE PEOPLE, Plaintiff and Respondent, v. THOMAS INGRAM, Defendant and Appellant. Docket No. 29890. Court of Appeals of California, Second District, Division One. December 26, 1978. *834 COUNSEL Paul Halvonik, and Quin Denvir, State Public Defenders, under appointment by the Court of Appeal, Charles M. Sevilla, Chief Assistant State Public Defender, Joel...
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Opinion Defendant, Telophase Society of America (hereafter Telophase or defendant1), is in the business of incinerating or *851cremating human remains. Plaintiff, Cemetery Board (hereafter Board or plaintiff), is a statewide administrative agency charged with administering and enforcing the Cemetery Act (Bus. & Prof. Code, § 9600 et seq.) and Parts 1, 3 and 5 of Division 8 of the Health and Safet...
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Opinion Preliminary to formal adoption proceedings, the Department of Social Services of the County of Santa Clara (hereafter Department) instituted proceedings pursuant to the provisions of Civil Code section 2321 to declare the minor wards of the court, Heidi and Ralph (now age 12 and 11, respectively), free of parental custody and control. The trial court found that as a result of the neglect ...
Views: 1
Opinion Franchise Tax Board filed petition for order requiring Firestone Tire & Rubber Company to cooperate in an audit investigation for the period November 1, 1963, through October 31, 1974. 1 The board appeals from judgment dismissing the action entered after Firestone’s demurrer was sustained without leave to amend. (Code Civ. Proc., § 581, subd. 3, § 581d.) Petition ...
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Opinion On July 14, 1974, Lydia Goya filed a four-count complaint naming P.E.R.U. Enterprises, La Brea Inn, Hollywood Press and twenty Does as defendants, alleging unauthorized publication of her photograph in an ad for La Brea Inn and conversion. She prays for $100,000 general damages and $1 million punitive damages. On October 9, 1974, plaintiff amended her complaint to substitute in the plac...
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Opinion On February 28, 1977, appellant filed her complaint in six counts for recovery of a bank deposit, for money had and received, for conversion, for emotional distress, for breach of implied covenant of good *898faith and fair dealing and for declaratory judgment. Respondent demurred generally as to each alleged cause of action and the trial court sustained without leave to amend. The appeal ...
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Opinion Plaintiff, Robert Van Den Eikhof, appeals from an order granting a new trial as to defendant, Guy J. Hocker,. Jr., only. All defendants (Guy J. Hocker, Jr., Gail Hocker and Patricia L. Hocker) cross-appeal from (1) the judgment against them in the amount of $190,000 as to Guy and Gail and in the amount of $15,000 as to Patricia; (2) an order denying their motion for judgment notwithstan...
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*909 Opinion Petitioner William Rumbaugh contends that the Workers’ Compensation Appeals Board (Board) erred in calculating pursuant to Labor Code section 4658 1 the dollar value of the awards for his two industrial back injuries. 2 *910 Since April 1, 1972, section 3 has provided a graduated scale whereunder the number of weekly benefi...
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Opinion The California Youth Authority appeals from a habeas corpus order directing that previously fixed parole consideration hearing dates, formerly referred to as “a continuance date,” be advanced by the time the respondents had been subject to precommitment detention prior to their commitment to the Youth Authority. The only contention presented is whether the parole consideration date is in ...
Views: 0
87 Cal.App.3d 926 (1978) 151 Cal. Rptr. 32 THE PEOPLE, Plaintiff and Respondent, v. PAUL ANDREW NEMIE, Defendant and Appellant. Docket No. 9669. Court of Appeals of California, Third District. November 29, 1978. *927 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Gary S. Goodpaster and Ezra Hendon, Chief Assistant State Public Defenders, and Ted W. Isles and...
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Opinion In separate proceedings criminal complaints for fraudulently obtaining unemployment insurance benefits in violation of Unemployment Insurance Code section 2101 were filed against Richard Manning and John Martinez in the municipal court. The municipal court denied their motions to dismiss the actions, which were made on the ground that at no time were they notified of the possibility of ma...
Views: 0
87 Cal.App.3d 938 (1978) 151 Cal. Rptr. 695 VENTURA COUNTY EMPLOYEES' RETIREMENT ASSOCIATION, Plaintiff and Respondent, v. JOHN MICHAEL POPE, Defendant and Appellant. Docket No. 52616. Court of Appeals of California, Second District, Division Two. December 28, 1978. *941 COUNSEL Roberts, Mead, Harrison & Dougherty and Roger W. Roberts for Plaintiff and Appellant. Dorothy L. Schechter, County ...
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Opinion This is an appeal from an order and judgment directing issuance of a peremptory writ of mandate ordering defendants (State) to fund a social service contract entered into between plaintiffs (County or San Francisco) and two private corporations pursuant to Welfare and Institutions Code, 1 section 12300 et seq. The background facts are relatively simple and may be summarized as follows...
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Opinion D. A.and Mozel Sue Lipscomb, husband and wife (hereinafter referred to collectively as Lipscomb or plaintiffs), appeal the dismissal of their action for attorney malpractice entered pursuant to the granting of a nonsuit to defendant Robert Krause. Facts At trial it was established that the acts of defendant which the Lipscombs alleged to constitute malpractice occurred d...
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Opinion Petitioner (James)seeks a writ to suppress certain evidence seized at the time of an arrest. In this case the main issue we consider is the validity of a warrantless arrest of petitioner. *988 Facts On May 30, 1978, Virginia Ann Fierro and Rosanna Limón were employed and working at Jiffy Food Store, Blackstone and Alpine Streets, Tulare. Shortly after midnight two black men ente...
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Opinion On May 21, 1976, plaintiffs Frank M. La Pietra and Wanda J. La Pietra entered into a building construction contract with the defendant, Eric Freed, dba Creative Environments. Under the agreement Freed was to construct a single family residence for the La Pietras. In late February or early March of 1977 a dispute arose between the parties. Paragraph 16 of the agreement pr...
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Opinion Plaintiff Vera E. Loree’s verified complaint sought $7,472.56 damages from insurance brokers Robert F. Driver Co., Inc. (Driver) and Ron Guy. Loree charges these defendants with a negligent failure to procure a Small Business Administration (SBA) “guaranty policy” to her consequential damage. Both the contractor and Summit *1034 Insurance Company (Summit), performance bond surety on L...
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Opinion Marcia V. Axley appeals from a summary judgment entered against her in favor of Transamerica Title Insurance Company (Transam). Axley sued numerous parties in connection with a real estate transaction. The appeal here involves the sixth cause of action which alleges a breach of duty on the part of Transam, the escrow holder in the transaction. *4 On or abou...
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Opinion Petitioner city filed petition for writ of review claiming it was not an employer of Charles Calvert, the injured employee within the meaning of Labor Code section 5500.5 1 during the last five *22 years of Calvert’s employment or within five years of the “date of injury” and accordingly, should have been dismissed as a defendant in Calvert’s claim for work...
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Opinion Philip Shelton Baker appeals from a judgment convicting him of violation of Penal Code section 520 (extortion by use of force or threat) and Penal Code section 523 (extortion by threat). Appellant, and other persons not parties to this appeal, were investors in a corporation that was in the process of converting into a bar a building adjacent to property owned by one Leo Veme...
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Opinion Defendant Tyrone James appeals from a judgment of the Superior Court of Sacramento County sentencing him to a total of 11 years in prison after a jury found him guilty of second degree murder, with use of a deadly weapon. (Pen. Code, §§ 187, 12022.) Defendant’s contentions are: (1) The trial court committed prejudicial error in allowing his impeachment by means of a prior felony; (2) th...
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Opinion Appellant Steve Squadere, appeals his conviction of violating Vehicle Code section 23122.1 The section expressly states “[n]o person shall have in his possession on his person, while in a motor vehicle upon a highway, any bottle, can, or other receptacle, containing any alcoholic beverage which has been opened, or a seal broken, or the contents of which have been partially removed.” (Itali...
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Opinion This appeal presents a question of first impression in California: May the creditor of an insured execute upon the cash surrender value of life insurance policies by garnishing the insurer where the insured has not exercised his option to surrender the policy? We hold that execution does not lie. *Supp. 8Appellant, Equico Lessors, Inc., a judgment creditor of Peter Prestininzi, sued respo...
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Opinion Appeal by defendants from an order denying their motion to suppress. (Pen. Code, § 1538.5.) The defendants were charged with violating Penal Code section 311.2 (distributing obscene material). After pleas of not guilty were entered, a motion to suppress was made and denied. The trial date was continued and the appeal from the order denying suppression followed. The appeal is on a settled s...
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Opinion Defendant appeals from a judgment of conviction, in a jury trial, of battery occurring in 1975, in violation of Penal Code section 242 and the court’s resulting order granting probation with certain conditions. Defendant had declined to enter a plea of not guilty by reason of insanity in addition to his plea of not guilty. *Supp. 23Defendant’s main contention is that the trial court denie...
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*459 Opinion On April 23, 1977, a search warrant for premises in Newark was issued. 1 Shortly thereafter, five officers under the command of Detective Kasich proceeded to the house. Four were deployed to the front; Officer Lynch climbed over a fence in the rear. He encountered respondent Berkeley, who was on a sundeck clad in shorts sunning himself. Lynch announced his mission and told Berk...
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Opinion By an amended information defendant was charged with receiving stolen property in violation of Penal Code section 496, subdivision 1. Defendant entered a plea of not guilty; trial was by jury. Defendant was found guilty as charged and sentenced to the state prison for the term prescribed by law. Defendant has appealed from the judgment of conviction. *494 Statement of Facts In Aug...
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Opinion Defendant was charged with: (count I) robbery, in violation of section 211 of the Penal Code; and (count II) assault with a deadly weapon, in violation of subdivision (a) of section 245 of the Penal Code. After a trial by the court, trial by jury having been duly waived, defendant was found guilty of robbery in the second degree and of assault by means likely to produce great bodily inj...
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Opinion Plaintiff Grace Pena appeals an order dismissing her 19th and 20th causes of action pursuant to the sustaining of defendants’ demurrers thereto. We affirm the dismissal order. *644 In the summer of 1975, plaintiff went on a 10-day prepaid tour of Mexico. The tour had been arranged by Sita World Travel, Inc. (Sita) and sold to plaintiff by United Associated Tour and Travel Service (U...
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*Supp. 30Opinion Appellant-tenant appeals from an adverse judgment in an unlawful detainer case. It was admitted at the trial that appellant had not paid rent due from November 1976 to the date of trial. Appellant’s proffered defense, not allowed by the trial court, was that respondent’s failure to provide adequate security guards constituted a breach of the warranty of habitability. In determinin...
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Opinion Defendant appeals his conviction, following a jury trial, of soliciting an act of prostitution, in violation of Penal Code section 647, subdivision (b). Among defendant’s contentions are that the trial court erred in denying defendant’s requests: (1) to instruct on specific intent; (2) to give accomplice instructions; and (3) to give a special entrapment instruction. He further complains ...
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Opinion Appellant was convicted in Berkeley of violating an ordinance prohibiting the operator of any vehicle from parking that vehicle upon any street in the City of Berkeley “for the principal purpose of demonstrating it or displaying it for sale, unless authorized by resolution of the Council.” From this conviction appellant appeals. At trial, defendant, herein appellant, testified that he had ...
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Opinion Balboa Insurance Company appeals from the summary judgment for the State Board of Equalization (the Board) and against Balboa (appellant). The Board had filed a complaint on surety bonds alleging 12 causes of action against defendant-appellant, Balboa Insur*501ance Company.1 The summary judgment upon which this appeal is taken was on the first cause of action, which involved Balboa as the...
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Opinion The opinion in these two appeals is consolidated as the questions raised are similar, although not exactly the same. Several principles of law are common to both cases. The Flores Case Defendant Flores was charged in count I with driving a motor vehicle upon a public highway while under the influence of intoxicating liquor, in violation of Vehicle Code section 23102, subdivision (a) and in...
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Opinion The People appeal from an order setting aside count one of the information which alleged that defendants violated Penal Code section 4573 1 by “knowingly assisting] in bringing marijuana into the Santa Barbara County Honor Farm grounds.” 2 The trial court set aside count one on the ground that defendants had been committed without reasonable or probable cause...
Views: 6

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