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All Reporters → cal-app-lexis → Volume 1979

Opinions in cal-app-lexis Volume 1979

*998 Opinion In this extraordinary writ proceeding, authorized by section 23090 of the Business and Professions Code, 1 we consider the validity of fair trade laws regulating the sale of wine in this state, in light of the ruling in Rice v. Alcoholic Bev. etc. Appeals Bd. (1978) 21 Cal.3d 431 [146 Cal.Rptr. 585, 579 P.2d 476], which invalidated California’s price maintenance laws relati...
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Opinion Maria Rivera appeals from an order denying her motion for preliminary injunction. Appellant had held the position of eligibility worker II with the Los Angeles County Department of Public Social Services (DPSS); she had also been a client of DPSS and a recipient of public social services from aid to families with dependent children (AFDC). Appellant alleged that on May 16, 1975, she receiv...
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Opinion Appellant has appealed the judgment entered upon his plea of guilty to burglary. He seeks review of the order of the trial court denying his motion to suppress made pursuant to Penal Code section 1538.5. *1010 Factual Background On January 19, 1977, at about noon, Los Angeles County Deputy Sheriff Patrick L. Walsh received information from his partner, Deputy Fred Wisinger, that...
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*1017 Opinion A jury found defendant guilty of second degree murder. (Pen. Code, § 187.) The jury also found that defendant used a firearm in the commission of the offense. (Pen. Code, § 12022.5.) The court found aggravating factors and sentenced defendant to the “upper” term of seven years and added two years for the use finding. Defendant was therefore sentenced to state prison for 9 years,...
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Opinion Robert R. appeals an order of the trial court denying his motion to set aside his stepparent adoption of Jason R., age five. Facts Gloria and Dennis M. were married on August 5, 1967, and the minor child Jason was born to them on September 19, 1971. Their marriage was dissolved on October 31, 1972, and custody of their minor child, Jason, was granted to Gloria subject to the right o...
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Opinion Plaintiff City Products Corporation appeals from a judgment of dismissal after a demurrer was sustained (without leave to amend) to its complaint seeking recovery from defendant Globe Indemnity Company pursuant to the terms of a general liability policy of insurance. The policy expressly covered “all sums which the insured shall become legally obligated to pay as damages because o...
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Opinion The sole question presented by this proceeding is whether an industrially injured municipal employee is entitled to the vocational rehabilitation benefits mandated by Labor Code section 139.5, as amended in 1974. 1 In September 1975, Thomas K. Slotten (hereafter applicant) sustained an industrial injury to his head, neck, and shoulders while employed as a police offic...
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Opinion Statement of the Case Appellant Dane R. Hayward, a police officer for the City of Hanford, was dismissed near the end of his one-year probationary period. He brought this action to challenge the procedures used in his dismissal. *67 On February 10, 1977, appellant’s counsel ¡Sled three separate documents with the Superior Court of Kings County, all under one court number. One was ...
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*74 Opinion Defendant Robert A. Moesch (Moesch) appeals from a judgment entered by the trial court in an unlawful detainer action upon a motion by plaintiff Union Oil Company of California (Union) for judgment on the pleadings. Statement of the Case Union’s complaint alleged a lease agreement between Union as lessor and Moesch as lessee, executed on July 31, 1973, for r...
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Opinion Joaquin S. contends abuse of discretion on the part of the trial court in refusing to admit polygraph evidence at a hearing to *82 vacate his order of commitment to the California Youth Authority (CYA). Joaquin had been committed to the CYA on July 12, 1977, after a hearing and true findings he had committed two armed robberies (Pen. Code, § 211). Joaquin brought this petition to vaca...
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Opinion Defendant Manuel Guevara, Jr., was charged with one count of escape (Pen. Code, § 4532, subd. (b)), 1 five counts of kidnaping (§ 207), two counts of burglary (§ 459), one count of robbery (§ 211) and two counts of unlawful taking of a motor vehicle (Veh. Code, § 10851). Guevara was also charged with seven allegations of enhancement under section 12022, subdivision (b), seven allegati...
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Opinion Appellants are the owners of coin-operated, video “21” or “Blackjack” game machines, which they lease to various businesses for the amusement and enjoyment of their customers. When the player’s score is closer to 21 points than the machine’s, the player wins an additional, free chance to play, which is signified by illumination of an “extended play” button permitting the machine to be o...
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Opinion Plaintiff appeals from the judgment in a partition action. The case arises long after the distribution of the estate of Alice E. Forrest, deceased. She provided in her will for her six children, plaintiff (Fern) included. As part of her dispositive plan she gave Fern the real property here involved “for so long as he lives upon the property, and upon his removal from the property, or up...
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Opinion Appellant, an employee of Graphic Arts International Union, Local No. 63-A, 63-B (hereinafter Union), sued the Union and certain of its agents and officers for assault, battery, false imprisonment and rape. By her first amended complaint, she alleged that, on April 14, 1976, she was, by George Smith and others, during business hours, “attacked, beat, struck, assaulted ... by approaching...
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Opinion Defendant appeals his conviction of armed robbery on the ground that irrelevant and prejudicial hearsay evidence was erroneously admitted by the court under the state of mind exception to the hearsay rule. Defendant was charged by information with robbery, a violation of Penal Code section 211. It was further alleged that defendant used a handgun while committing the offense, a violat...
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*203 Opinion We issued an alternative writ of mandate in this matter upon a representation that the superior court, at a trial de novo on a small claims court appeal, expressly permitted hearsay testimony by the respondent therein, contrary to Evidence Code section 1200 and California Rules of Court, rule 155. But we have concluded that the writ was improvidently issued by ...
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*209 Opinion Arthur B. White, real party in interest, appeals 1 from an order of the superior court granting the People’s writ of mandamus reinstating White’s prior felony conviction and directing the municipal court to vacate its order reducing count II, a felony charge, to a misdemeanor. White contends that the superior court erred in issuing the peremptory writ as: 1) he was charged in c...
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Opinion Following a jury trial in the Long Beach Municipal Court, defendant David Lee Barben (Barben) was convicted of violating section 4050 of the Business and Professions Code. 1 That section, with exceptions not relevant here, makes it a misdemeanor for any person “to manufacture, compound, sell or dispense any drug, poison or chemical, or to dispense or compound any prescription of a med...
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Opinion Defendant appeals from a judgment convicting him of the offenses of robbery (Pen. Code, § 211) and murder (Pen. Code, § 187) following verdicts in a jury trial. Initially, an information was filed on September 27, 1976, charging defendant with having committed a robbery of Joel Irving Arisohn on February 23, 1976. It was also alleged that, at the time of the commission of the robbery, d...
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*256 Opinion Bruce C. Newlin, Superintendent of the Amador Valley Joint Union High School District (hereafter, the District), and others appeal from a judgment granting a writ of mandate to compel them to raise the salaries of certain teachers. Respondent teachers were all certified employees of the District for 1975-1976, under employment contracts that incorporated a sched...
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Opinion Defendant was convicted by a jury of possession of heroin in violation of Health and Safety Code section 11350, subdivision (a). He was placed on probation on various terms and conditions including the service of one year in the county jail. An appeal from the judgment of conviction was duly noticed. Subsequently defendant petitioned this court to vacate the judgment under Penal Code ...
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Opinion Plaintiff appeals after denial of his motion for new trial in this action for attorney malpractice. The action was tried by the court. At the conclusion of a two-day trial the court found for defendant. Thereafter, plaintiff discovered that one of the two attorneys who represented defendant at trial was under suspension from the practice of law at the time of trial for nonpayment of fee...
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Opinion Petitioners, executors of the estate of Tillie Lewis, seek á writ of prohibition after the Superior Court of San Joaquin County, sitting in probate, granted real party’s request for a jury trial. *278 Matthew L. Lewis, real party, is the executor of the estate of Meyer Lewis, Tillie’s predeceased husband. On June 27, 1977, Matthew filed a petition in Tillie’s estate ...
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Opinion Defendant was charged by information with murder (Pen. Code, § 187) and the use of a deadly weapon (a knife) in the commission of the murder. (Pen. Code, § 12022, subd. (b).) Several prior convictions were charged. Defendant pled not guilty and moved to suppress evidence on the ground of unreasonable search and seizure (Pen. Code, § 1538.5). The motion was submitted on the transcr...
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Opinion Defendant Diane Crudgington was charged by information with one count of welfare fraud (Welf. & Inst. Code, § 11483, subd. (2)—cash assistance for a child in excess of $200). Her motion to set aside the information made pursuant to Penal Code section 995 was granted. The People appeal pursuant to Penal Code section 1238, subdivision (a)(1)- The sole ground upon which the tria...
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Opinion Statement of the Case1 This is an appeal from a pretrial order enjoining appellant from operating a private airport during the pendency of the action. *306On May 31, 1977, respondent filed a complaint seeking to enjoin appellant’s operation of an airport on its property in the Sierra foothills in the northeast comer of Tulare County. The complaint alleged that the airport constituted a pu...
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Opinion The petition in this matter seeks review of an order denying petitioners’ motions for summary judgment. We are asked to decide whether a third party contract is an offer to the creditor-beneficiary so that the beneficiary must accept the “offer” before a cause of action in his favor accrues. There is no dispute as to the relevant facts. On October 21, 1966, Roy C. Alexander a...
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Opinion This is an appeal from the trial court’s granting of respondents’ motion for judgment on the pleadings. 1 We affirm the judgment. On January 6, 1977, Robert B. McDowell, Edythe M. McDowell, Joseph B. McDowell, Michael B. McDowell, and Michele Marinoff (hereinafter appellants) filed their first amended complaint for damages for wrongful death. The complaint alleges ...
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Opinion Union Bank (hereafter bank) appeals from a judgment awarding plaintiffs $7,779 damages for breach of contract. Plaintiffs cross-appeal from the judgment insofar as it fails to award them *334 exemplary damages. On the bank’s appeal, we affirm. On the cross-appeal we reverse and remand. I The Bank’s Appeal The plaintiff law firm is a professional corpora...
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Opinion Donald Beauchene appeals from a judgment of dismissal which was rendered after the court sustained a demurrer to his complaint in which he had alleged that Synanon Foundation, Inc. was liable for the intentional criminal behavior of Lynn Bentley, who injured appellant after eloping from a Synanon home. On appeal after a sustained demurrer, the court must assume the truth of the factua...
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Opinion Emanuel P. Razeto and Minnie P. Razeto have appealed from a summary judgment dismissing their complaint against respondents City of Oakland and East Bay Municipal Utility District (EBMUD). *351 The complaint sought recovery for property damage resulting from the alleged negligent installation and maintenance of a fire hydrant. Specifically, vandals allegedly turned o...
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Opinion Defendants appeal from a mandatory injunction rendered against them following a court trial. In a first amended complaint plaintiffs set forth three causes of action. The first alleged a nuisance, the second a trespass and the third an action based upon negligence. Defendants are the owners and operators of a public golf course in the City of Azusa. In 1969, plaintiff S...
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*386Opinion Statement of Facts Ray Edwards, deceased, bequeathed the following gift in article four of his will: “To Oakland Cemetery Association [hereafter Cemetery] of Saint Paul, Minnesota, a public cemetery, the sum of One Hundred Thousand Dollars ($100,000.00) in memory of my beloved wife, A. Estelle H. Edwards.” An inheritance tax referee concluded that the bequest to Cemetery.was subject t...
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*402 Opinion Petitioners appeal from a judgment of the superior court denying their petition for extraordinaiy relief in the nature of mandamus and/or prohibition against the Board of Supervisors of Ventura County (the Board) for unlawfully and wrongfully granting a conditional use permit to Phoenix West Oil and Gas Corporation (Phoenix), the real party in interest. 1 ...
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I must respectfully dissent from the opinion expressed by the majority primarily because it suggests a procedure I perceive to be a departure from the orderly and, so far as possible, expeditious trial of issues and administration of justice. It is my firm belief that where a complaint alleges attorney’s fees are part of the damages suffered in a breach of contract action, as here, they should be ...
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88 Cal.App.3d 438 (1979) 152 Cal. Rptr. 167 In re HARM R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. HARM R., Defendant and Appellant. Docket No. 20129. Court of Appeals of California, Fourth District, Division Two. January 17, 1979. *440 COUNSEL Malcolm S. MacMillan, Public Defender, and Patra Wollum, Deputy Public Defender, for Defendant and Appellan...
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Opinion The superior court, on defendant William Walters’ motion for summary judgment against plaintiff Fred Redman, entered an order that “the motion herein be and it is granted,” and that plaintiff’s “complaint herein be and it is dismissed and that judgment be entered for defendant [Walters].” We treat the order as an appealable order dismissing plaintiff’s action insofar as it relates...
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*463Opinion The appeal in this matter seeks review of an order denying appellant’s application for leave to file a creditor’s claim in the subject decedent’s estate.1 In dispute is whether the exception of Probate Code section 7202 to the time limits of the probate claim procedure is limited to physical injuries. Appellant’s claim states in relevant part as follows: On or about June of 1959, appe...
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Opinion The minor appeals from the judgment (order of commitment to the California Youth Authority (CYA)) following his admission to the allegation that he committed robbery (Pen. Code, § 211). The petition is in two counts. Count 1 alleges a single incident in which the minor robbed six victims while armed with a firearm; count 2 alleges the minor committed an assault with a deadly ...
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Opinion The main question posed by this appeal concerns the exclusive remedy provisions of the Workers’ Compensation Act (Lab. Code, § 3200 et seq.): specifically, should these provisions bar an employee’s civil action against his employer and fellow employees for intentional infliction of emotional distress where physical illness and disability accompany the emotional distress? We hold that th...
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*540 Opinion Ralph N. Bambacigno and Mazy Bambacigno appeal from a summary judgment dismissing as against one defendant a complaint by which appellants sought recovery from Lydia C. Baker, Marcelino Arriaga and Orvalle N. Bodenhausen for damages resulting from an automobile collision. The summary judgment was in favor of Bodenhausen. On December 23, 1974, Arriaga allegedly lost control of h...
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Opinion Plaintiffs are the two minor children of defendant John P. Quaglino; they are suing through their guardian ad litem for child support and appointment of a receiver. Defendant was convicted of the murder of plaintiffs’ mother and is presently incarcerated on that charge. On March 11, 1977, the trial court ordered a receiver appointed for the property described in exhibit A of the complai...
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Opinion This appeal by the Los Angeles County Flood Control District arises out of a judgment granting damages to Weeshoff Construction Company in the amount of $31,781 for extra work performed during the execution of a construction contract. The district now appeals the judgment, contending damages were improperly awarded. It claims: (a) there was no change in the original contract ...
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*598Opinion Introduction Walter R. Martin (plaintiff) brought suit against Bruce A. Johnson (defendant Johnson) and The Church of Jesus Christ of Latterday Saints (defendant church, also referred to as L.D.S. Church).1 Plaintiff charged that defendants had committed the torts of defamation, intentional infliction of emotional distress, interference with prospective advantage and conspiracy to com...
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Opinion The marriage of Donald and Beverly Spurr was terminated by a Nevada divorce decree which contained a provision requiring Donald to maintain a $15,000 life insurance policy in favor of Deeann Dorothy Spurr, the only child of the marriage and the plaintiff in the instant action. Following the death of Donald Spurr, plaintiff brought this action against Donald’s second wife, defendant Boni...
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Opinion This appeal presents the question whether the survivors of a person who died in an automobile accident, caused by decedent’s own drunken driving and his consequent violation of a traffic law, can take an award of damages from the proprietor of a bar where the decedent was served drinks, while he was obviously intoxicated, just before the accident. Patricia June Sissle and oth...
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Opinion Appellant Bradfield was injured on a Trans World Airlines, Inc. (hereafter TWA) flight enroute from San Francisco to Paris when, while he was descending the stairs of the first class section of a Boeing 747, the airplane encountered turbulence and he fell down the stairs. He was at the time an economy class passenger visiting the first class area, either on his own initiative or a...
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Opinion This appeal is from a judgment of dismissal with prejudice entered against the plaintiff after, a general demurrer of the defendants, Paul J. Benoit and Michael Hem, was sustained without leave to amend. Complaint and Demurrer On May 23, 1977, plaintiff filed his complaint in Orange County. Plaintiff brings his action under the federal Civil Rights Act, 42 United St...
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Opinion This appeal is from an adverse judgment in an inverse condemnation action. We adopt the “Factual Statement” as set forth in appellant’s brief: “In the latter part of 1968, Appellant was the owner of a parcel of property fronting on Noble Avenue in the San Fernando Valley identified as Lot 10, Tract 15055. During that time Respondent was in the process of acquiring rights of way for the Rou...
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*727 Opinion Margaret Earley Manguso’s action is one for libel against a former school principal, Ben Fugate, under whom she worked as a teacher, and against Oceanside Unified School District, the school district employing them, for alleged defamatory statements Fugate made in a letter he is alleged to have caused to be placed in her permanent personnel file with the school distr...
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Opinion The present appeal is by the People from a judgment of dismissal and order suppressing evidence rendered under the following circumstances.1 *734At 4:30 a.m. on Januaiy 13, 1977, Palo Alto Police Officer Deisinger observed two men standing by—exiting or entering—an automobile in the parking lot at the Travel Lodge Motel on El Camino Real in Palo Alto. Except for the insignificant fact that...
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Opinion Defendant was. charged in count 1 with violation of Penal Code, 1 section 12020 (possession of a sawed-off rifle) and in counts 2, 3, *745 and 4 with violation of section 211 (robbery). The information also charged defendant with the use of a sawed-off rifle in the commission of the robberies charged in counts 3 and 4. Defendant pleaded not guilty to all counts and denied the use ch...
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Opinion Petitioners are charged by indictment with conspiracy to commit murder in the first degree. The first degree murder charge also alleges two special circumstances: (1) that petitioners willfully conspired to commit premeditated murder “by means of a destructive device or explosive” (Pen. Code, § 190.2, subd. (b) 1 ) and (2) that petitioners willfully conspired to murder a peace officer...
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Opinion Edward T. Powers, a licensed real estate broker, bilked respondent and her late husband. There were two stages to this operation, *765 both involving one listing agreement for the same piece of real estate. The question is whether this fraud occurred in one transaction or two. Where there is an uncollectable judgment against a licensed real estate broker based on a fr...
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Opinion The issue presented here is what statements, if any, made to defense investigators by defense alibi witnesses can be discovered by the prosecution. We conclude that such discovery constitutes an unconstitutional violation of a defendant’s privilege against self-incrimination even if the statements only impeach the testimony of the alibi witnesses and do not directly inculpate the defendant...
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*815 Opinion This is an appeal from a judgment declaring that certain procedures of the California Employment Development Department (EDD) violated section 303(a)(1) of the Social Security Act (42 U.S.C. § 503(a)(1)), the due process clause of the California Constitution, and the due process clause of the United States Constitution. The superior court issued an injunction prohibiting the susp...
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*826 Opinion Defendant Transpacific Transportation Company appeals from the judgment in favor of plaintiff Division of Labor Law Enforcement, the assignee of the claims of various former employees of defendant for wages due. The findings of fact and conclusions of law relevant to this appeal are as follows: Defendant is a steamship agency company which employed 43 persons in...
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*834 Opinion Appellant was hired as director of bilingual-cross cultural education at the Franklin-McKinley School District in July of 1974. Appellant had a credential for the community college level but did not hold an administrative credential for kindergarten through 12th grade, a requisite of the job. Despite that lack, she was considered the best qualified applicant and the ...
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Opinion Patricia M. Johnson (Patricia) appeals from that part of the judgment of dissolution of marriage to Andrew J. Johnson (Andrew) that denied her request for child support for the minor child James Joseph Johnson (Jimmy) based upon the court’s finding that Andrew was not the putative father of the child. As Justice Tobriner (then an appellate court justice in the First District) so aptly...
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88 Cal. App. 3d 864 (1979) 152 Cal. Rptr. 111 In re GORDON BANKS on Habeas Corpus. Docket No. 10103. Court of Appeals of California, Fourth District, Division Two. January 26, 1979. *866 COUNSEL Charles E. Ward, Public Defender, Littleton M. Gunn and Andrew E. Rubin, Deputy Public Defenders, for Petitioner. Evelle J. Younger, Attorney General, Michael D. Wellington, Deputy Attorney General, James...
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Opinion The central issue on this appeal is whether the results of an human leucocyte antigen (HLA) test are admissible to establish parentage in a civil paternity suit. 1 At the commencement of trial, defendant made an oral motion in limine to exclude the results of an HLA paternity test performed by Dr. Paul Terasaki of the UCLA School of Medicine on blood sample...
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Opinion This appeal 1 by the People raises the common question of whether a trial court has jurisdiction to impose a sentence pursuant to Penal Code section 1170.1, where a defendant, at the time he commits an offense subject to the Uniform Determinate Sentencing Act (DSL), has committed a felony prior to the July 1, 1977, operative date of the DSL. For the reasons set forth below, we reverse...
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Opinion Stephanie Nicole Fults was bom to petitioner Christine Fults on October 3, 1975. The birth certificate lists the mother’s age as 17 and names David Cook, real party in interest, as the father, age 19. Petitioner and Cook have never been married nor have they ever lived together. The District Attorney of Sonoma County filed a paternity suit on petitioner’s behalf naming Cook as defendant.1...
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Opinion The parents of two minor children appeal an order removing them from the home. The court below found that “the children are happy, content, clean, overall very well cared for, and that the parents are concerned parents.” Nonetheless, because cocaine and marijuana were discovered at their residence, the court concluded that “having those drugs in the home leads to the possibility of harm or...
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Opinion On March 11, 1977, the California Energy Resources Conservation and Development Commission (hereinafter Commission or Petitioner), adopted amendments to energy conservation regulations for new residential construction pursuant to Public Resources Code section 25402, subdivision (a). 1 The new standards represent nine months of evidence taking by the Commission from its staff and other...
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88 Cal.App.3d 924 (1979) 152 Cal. Rptr. 127 REGAN DISTRIBUTORS, INC., et al., Plaintiffs and Appellants, v. YUROSEK & SON, INC., et al., Defendants and Respondents. Docket No. 53719. Court of Appeals of California, Second District, Division Three. January 29, 1979. *925 COUNSEL J. Albert Hutchinson for Plaintiffs and Appellants. Selvin & Weiner and Paul P. Selvin for Defendants and Respon...
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*933 Opinion By jury trial appellant was found guilty of first degree burglary. He appeals from the judgment (order granting probation) contending (1) that the trial judge had no jurisdiction and (2) that error was committed by the court and the prosecutor as to rulings and comments upon locating defense witnesses. Neither contention has merit. This trial was heard by Municipal Court Judge ...
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*960 Opinion The Department of Health and its director appeal from a judgment in administrative mandamus directing in effect, among other things, that the department issue to Verdugo Hills Hospital, Inc., located in Glendale, California, a certificate of exemption from the requirement of a certificate of need for its lease-purchase of a piece of diagnostic equipment known as a co...
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Opinion This is an action in inverse condemnation in which appellants claim damages to their property alleging that certain acts of respondent city diminished the value of appellants’ real property. In a trial without jury the court found in favor of defendant city. Appellants filed a timely notice of appeal. Appellants owned a parcel in fee simple on the northwest comer of Franklin Avenue an...
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Opinion California State University, Chico, and Dr. Stanford Cazier, its president, 1 appeal from a judgment granting a peremptory writ of mandate (prohibition) to petitioner James L. Bonn. The record on appeal does not include the reporter’s transcript. Accordingly, the statement of facts is taken from the findings of fact made by the trial court. Prior to his retirement Bonn was a techn...
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Opinion Following a preliminary hearing, defendant Marquez was charged by information with the sale of heroin in violation of Health and Safety Code section 11352. Defendant was convicted of that charge in a jury trial and appeals, contending erroneous admission of evidence by the trial court merits reversal. At the trial Officer McConnell testified he was telephoned by a Henry Ramos on Janua...
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*6Opinion The People appeal from an order of the Riverside Superior Court setting aside an indictment. The record discloses numerous errors, not the least of which was the court’s deciding the principal question at issue on the basis of unsworn statements of defense counsel received in camera, outside the presence of the People’s legal representative. Accordingly, the order will be reversed and t...
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*33Opinion We granted a writ of review in these consolidated cases to determine whether respondent Alcoholic Beverage Controls Appeals Board (hereafter Board) exceeded its jurisdiction in reversing the decision of the Department of Alcoholic Beverage Control (hereafter Department) revoking real parties’ on-sale general licenses on grounds including the commission of crimes involving moral turpitu...
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*52 Opinion Plaintiffs Rose Ellen Frederick, Alan Frederick and Leslie Frederick appeal from the judgment dismissing their complaint against defendant Calbio Pharmaceuticals for damages for the wrongful death of William Frederick. The judgment was entered after defendant’s demurrer was sustained with 30 days’ leave to amend, and plaintiffs failed within that time to file an amend...
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89 Cal.App.3d 61 (1979) 152 Cal. Rptr. 271 In re the Marriage of TALLULAH and JOSEPH WILLIAM LONTOS. TALLULAH LONTOS, Respondent, v. JOSEPH WILLIAM LONTOS, Appellant. Docket No. 16483. Court of Appeals of California, Fourth District, Division One. January 31, 1979. *63 COUNSEL Hunter & Ryan and Daniel B. Hunter for Appellant. Deborah L. Schowalter for Respondent. *64 OPINION STANIFORTH, J. Jo...
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Opinion The Board of Supervisors of the City and County of San Francisco passed a resolution “calling the attention of the Port Commission to the Adverse Effects of Billboards on Northern Waterfront Property.” It did so notwithstanding that section 2.401 of its charter ostensibly forbids any such action. Eller Outdoor Advertising Company of California (hereinafter respondent), which ...
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89 Cal.App.3d 113 (1979) 152 Cal. Rptr. 362 In re the Marriage of CHRISTINE and FERNANDO S. CAMPA. CHRISTINE CAMPA, Appellant, v. FERNANDO S. CAMPA, Respondent; CARPENTERS PENSION TRUST FUND FOR NORTHERN CALIFORNIA, Respondent. In re the Marriage of JOAN CLARE and JAMES PATRICK DURKIN. JOAN CLARE DURKIN, Respondent, v. JAMES PATRICK DURKIN, Respondent; CARPENTERS PENSION TRUST FUND FOR NORTHERN C...
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89 Cal.App.3d 143 (1979) 152 Cal. Rptr. 312 THE PEOPLE, Plaintiff and Respondent, v. JOHN GEORGE WHITE, Defendant and Appellant. Docket No. 32161. Court of Appeals of California, Second District, Division Four. February 2, 1979. *145 COUNSEL Raymond C. Youngquist for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, As...
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89 Cal.App.3d 153 (1979) 152 Cal. Rptr. 318 THE PEOPLE, Plaintiff and Respondent, v. FRANK ANGELO MILANO et al., Defendants and Appellants. Docket No. 33206. Court of Appeals of California, Second District, Division Four. February 2, 1979. *155 COUNSEL James Edward Green for Defendants and Appellants. George Deukmejian and Evelle J. Younger, Attorneys General, Jack R. Winkler, Chief Assistant Att...
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Opinion On March 18, 1977, Fred J. and Antoinette J., minors, were declared dependent children of the San Joaquin County Juvenile Court under Welfare and Institutions Code section 300, subdivision (a).1 The minors were permitted to remain in the physical custody of their mother, subject to certain orders of the juvenile court. On November 9, 1977, the San Joaquin Department of Public Assistance f...
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Opinion Petitioners, City of Chico and County of Butte, seek a writ of mandate commanding respondent Superior Court of San Francisco to vacate its order denying their motion for change of venue. Petitioners are cross-defendants in an action pending in respondent court, entitled James Decker Williams, Jr., and Karen Yvonne Williams, plaintiffs vs. Southern Pacific Company, a corporation, et al...
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Opinion After trial by the court, defendant Thomas Thompson was found guilty of willful failure to support his minor son (Pen. Code, § 270). He appeals contending trial court error , in upholding the constitutionality of and applying the conclusive presumption of paternity found in Evidence Code section 621 1 in this, a criminal prosecution. Thompson asserts the conclusive presumption deprive...
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89 Cal.App.3d 204 (1979) 152 Cal. Rptr. 485 THE PEOPLE EX REL. DEPARTMENT OF TRANSPORTATION, Plaintiff and Respondent, v. PATTON MISSION PROPERTIES, LTD., et al., Defendants and Appellants. Docket No. 19783. Court of Appeals of California, Fourth District, Division Two. February 5, 1979. *206 COUNSEL Thorpe, Sullivan, Workman, Thorpe & O'Sullivan and John J. Dee for Defendants and Appellants. Har...
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Opinion The County of Sacramento (County) has filed this petition for writ of mandate to compel the respondent superior court to grant its motion for summary judgment (and to vacate its order denying such motion) in the underlying action for wrongful death of Michael Kuhn. Michael died by drowning in the American River on June 15, 1974, and his parents filed the action against the County, the C...
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89 Cal.App.3d 221 (1979) 152 Cal. Rptr. 394 In re JOHN W. HODGES on Habeas Corpus. Docket No. 9895. Court of Appeals of California, Third District. February 6, 1979. *222 COUNSEL John W. Hodges, in pro. per., Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Ezra Hendon, Chief Assistant State Public Defender, and Tom Lundy, Deputy State Public Defender, for Petitioner....
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89 Cal.App.3d 240 (1979) 152 Cal. Rptr. 398 PETER J. AMOROSO et al., Petitioners, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; ALBERT PERCHERT et al., Real Parties in Interest. Docket No. 45553. Court of Appeals of California, First District, Division Three. February 7, 1979. *241 COUNSEL Mark Adams Poppett, Lynn Theilacker Carew, Ramos, Herlihy & Broadbeck and Edmond R. Pietraczyk f...
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89 Cal. App. 3d 269 (1979) 152 Cal. Rptr. 400 JUDY KAY AUSTIN et al., Plaintiffs and Respondents, v. THE MUNICIPAL COURT FOR THE WHITTIER JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Defendant and Respondent; THE PEOPLE, Real Party in Interest and Appellant. Docket No. 53065. Court of Appeals of California, Second District, Division Four. February 7, 1979. *270 COUNSEL John K. Van de Kamp, District A...
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Opinion The plaintiffs, Residents Ad Hoc Stadium Committee, David Troehler, Don Gennuso, and Ruth Albright, appeal from a judgment which found that an environmental impact report (EIR) adequately supported the decision of defendants, Trustees of the California State University and Colleges (Trustees), which approved and authorized construction of an athletic stadium located in the northwe...
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Opinion The sanitation district appeals from a judgment granting a writ of mandate ordering the reinstatement of an employee of the district. We affirm the judgment. The employee, Kim Lyman, was a permanent employee of the district. In July of 1976 there occurred a work stoppage by certain “blue collar” workers of the district. Lyman participated in that work stoppage in the face of an injunc...
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Opinion In an information filed by the District Attorney of Los Angeles County, appellant was charged with violating Penal Code section 476a (issuing a check without sufficient funds), a felony. On April 15, 1976, the charge was reduced to a misdemeanor and defendant pleaded no contest to that charge. On May 26, 1976, the date set for sentencing, imposition of sentence was suspended and defen...
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Opinion In an information, defendant was charged with committing three felonies on June 7, 1977. In count I, defendant was charged with committing forcible rape, in violation of Penal Code section 261, subdivision 3. In count 2, he was charged'with committing the felony of forcible oral copulation in violation of Penal Code section 288a, subdivision (c). In count 3, he was charged with committi...
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Opinion These appeals, consolidated for hearing, are taken from the granting of general demurrers without leave to amend in two actions filed on the same day against the South Coast Regional *329 Commission (Regional Commission) and the California Coastal Zone Conservation Commission (State Commission). One of the actions, a request for declaratory relief (Super. Ct. L.A. Co., No. C-178901) a...
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89 Cal.App.3d 354 (1979) 152 Cal. Rptr. 420 WILLIAM H. AUSTIN, Plaintiff and Appellant, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents. Docket No. 53279. Court of Appeals of California, Second District, Division Four. February 9, 1979. *356 COUNSEL Norman W. de Carteret for Plaintiff and Appellant. Schell & Delamer, Roland R. Kasper, Robert G. Garrett and Ge...
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*366 Opinion Ricky Anthony Steiner (Husband) appeals from an order of the superior court dated March 11, 1977, dismissing his petition to modify a Colorado custody modification decree, 1 which in turn modified an earlier California custody decree. The stated ground for the dismissal is that the California court lacked jurisdiction. The cause involves the application of the Uniform Child Cus...
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Opinion Appellant Joseph Watson, Jr., was convicted after trial by jury of violation of Health and Safety Code section 11351 (possession of *379 heroin for sale), and of violation of Health and Safety Code section 11350 (possession of cocaine). Appellant and his codefendant, Florie Rollins, were acquitted of violation of Penal Code section 496 (receiving stolen property). ...
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Opinion Petitioner seeks a writ of review to annul a contempt judgment for refusing an order of respondent court to comply with a subpoena duces tecum. The threshold issue presented by this proceeding is the scope of protection accorded by Evidence Code section 1070 to information acquired by a newsman in the course of his professional activities which has not been disseminated to the public. (...
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Opinion The primary issue here concerns whether in ruling on a motion to modify child support the trial judge may properly consider, in any way, the combined income and assets of the parent and his or her nonmarital partner. We answer in the affirmative and conclude that in this case there was no abuse of discretion by the trial judge. Appellant (Mr. Fuller) and respondent (Mrs. Fuller) were ...
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Opinion Petitioner seeks a writ of mandate to set aside an order compelling her to arbitrate a wrongful death claim for the death of her husband allegedly resulting from medical malpractice comhiitted by Kaiser Foundation Hospital and Southern California Permanente *415 Medical Group (hereafter defendants). 1 The trial court ruled that petitioner was bound by the a...
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Opinion Appellant was the named beneficiaiy under a policy of travel accident insurance issued by one of the respondents to John Bevel as' the insured. On December 23, 1972, Bevel and his companion Pat Dean planned to travel by air from Los Angeles to San Diego. A taxi had *422 been ordered the evening before to meet them at Dean’s apartment the next morning between 8:30 and ...
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89 Cal.App.3d 425 (1979) 152 Cal. Rptr. 495 THE PEOPLE, Plaintiff and Respondent, v. JAMES TROY THOMPSON, Defendant and Appellant. Docket No. 33001. Court of Appeals of California, Second District, Division Two. February 14, 1979. *427 COUNSEL Ron Minkin for Defendant and Appellant. Evelle J. Younger and George Deukmejian, Attorneys General, Jack R. Winkler, Chief Assistant Attorney General, S. C...
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Opinion Petitioner is the class representative in an action against the Golden Gate Bridge, Highway and Transportation District (hereinafter District). The real party in interest County of Marin (hereinafter County) is the ostensible representative in an identical action against the District. Both the County and petitioner obtained identical judgments and the District has appealed bo...
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Opinion In this child custody proceeding, petitioner (hereafter wife) contends that the decision of respondent court to retain jurisdiction over a custody determination frustrates the purpose of the Uniform Child Custody Jurisdiction Act (Civ. Code, § 5150 et seq.), 1 in light of currently parallel proceedings pending in the County of Silver Bow, State of Montana, where wife and the child hav...
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Opinion This appeal is based on appellant’s contention that his right to counsel was violated by the deputy public defender’s use of a certified law student to conduct appellant’s defense at trial. At all times during the trial, the student was under the direct and immediate supervision of the deputy public defender. Clearly, the appellant is entitled to representation by counsel at every stage of...
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89 Cal. App. 3d 446 (1979) 152 Cal. Rptr. 668 In re the Marriage of MARCIA A. and LAWRENCE A. AUFMUTH. MARCIA A. AUFMUTH, Appellant, v. LAWRENCE A. AUFMUTH, Appellant. Docket No. 42316. Court of Appeals of California, First District, Division Four. February 20, 1979. *452 COUNSEL Walter T. Winter and Barbara R. Dornan for Appellant Wife. Morgan, Beauzay, Hammer, Ezgar, Bledsoe & Rucka, Paul E...
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89 Cal.App.3d 467 (1979) 152 Cal. Rptr. 337 KENNETH ROSWALL et al., Plaintiffs and Respondents, v. THE MUNICIPAL COURT FOR THE NORTHERN SOLANO JUDICIAL DISTRICT OF SOLANO COUNTY, Defendant and Appellant. Docket No. 44760. Court of Appeals of California, First District, Division Four. February 2, 1979. *469 COUNSEL Milton Goldinger, County Counsel, Billy B. Burton, Chief Deputy County Counsel, and...
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Opinion This is an appeal and a petition for writ of mandate 1 filed by the People seeking appellate review of the juvenile court’s judgment granting respondent minor’s petition for rehearing and dismissing the charges against him. On January 18, 1978, a petition was filed charging that Richard C. was a person described by section 602 of the Welfare and Institutions Code ...
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89 Cal.App.3d 491 (1979) 152 Cal. Rptr. 796 CAROL J. FLYNN, Petitioner, v. THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; ARTHUR J. MOLINI, Real Party in Interest. Docket No. 44556. Court of Appeals of California, First District, Division Three. February 21, 1979. *493 COUNSEL David J. Friedenberg for Petitioner. No appearance for Respondent. Molinari, Casalnuovo & Berger and Joseph L. Casal...
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Opinion Defendant appeals from order revoking probation granted after imposition of sentence upon a plea of guilty to assault by means of force likely to produce great bodily injury and with a deadly weapon. Revocation proceedings were initiated on grounds which were *508 also the basis for new criminal charges (A-340503, A-340999) on which defendant had been held to answer but had not yet be...
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89 Cal.App.3d 513 (1979) 152 Cal. Rptr. 628 NANCY B. BROWN, Plaintiff and Appellant, v. JOHNNIE ALVIN ENGSTROM et al., Defendants and Respondents. Docket No. 53079. Court of Appeals of California, Second District, Division Four. February 15, 1979. *515 COUNSEL Levy, Koszdin, Goldschmid & Sroloff and Thomas G. Wianecki for Plaintiff and Appellant. *516 Lester W. Miller and Timothy H. Rowe for Defe...
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Opinion The wife appeals from an interlocutory judgment of dissolution. We reverse the judgment. The Winicks were married for 26 years and had four children, two of whom were minors at the time of the dissolution proceeding. The husband worked as a real estate broker, made investments, and engaged in investment counseling. In 1976, the year of the dissolution, his total gross income ...
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Opinion This is an action to recover money on a receiver’s bond. (See Code Civ. Proc., § 567.) Plaintiff Administrative Management Services, Inc., appeals from an order of dismissal entered following the *534 trial court’s sustaining, without leave to amend, defendant’s demurrer to the first amended complaint. In ruling on the demurrer, the trial court took judicial notice of the files in t...
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Opinion Defendant was charged with, and found guilty of, possession of heroin in violation of Health and Safety Code, section 11350. Three prior convictions were charged and found true, but these were stricken for the purpose of sentence. *539The dispositive facts are set forth in the transcript of the preliminary hearing of July 13, 1976.1 An Officer McMahon of the Glendale Police Department tes...
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89 Cal.App.3d 545 (1979) 152 Cal. Rptr. 506 ANTONIO TORRES et al., Plaintiffs and Appellants, v. BOARD OF COMMISSIONERS OF THE HOUSING AUTHORITY OF TULARE COUNTY et al., Defendants and Respondents. Docket No. 3496. Court of Appeals of California, Fifth District. February 15, 1979. *546 COUNSEL Neil J. Roberts, Robert K. Miller, Kathy Popoff, Nancy E. Sams and Stephen R. Elias for Plaintiffs and A...
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Opinion Appellant Vernell Woodard appeals from a judgment denying his petition for writ of mandate, in which he sought to have the decision of the Personnel Commission of the Compton Unified School District (Personnel Commission) affirming his termination from the position of grounds worker I set aside. In his petition he alleged that the findings of the commission were not supported by t...
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Opinion By information defendant was charged in count I with robbery in violation of Penal Code section 211, and in count II with assault with a deadly weapon in violation of Penal Code section 245, subdivision (a). A prior felony conviction was also alleged. Defendant admitted the prior conviction and, after a jury trial, was found not guilty of count I and guilty of count II. The court found ...
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Opinion In a decision after reconsideration the California Occupational Safety and Health Appeals Board (Board) determined that Steve P. Rados, Inc. had violated a construction safety order and assessed against Rados a civil penalty in the amount of $300 based upon its finding that the violation was a “serious violation.” Pursuing its statutory right of review, Rados petitioned the Orange...
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*609 Opinion Statement of the Case Appellant was charged by information with two counts of violating Health and Safety Code section 11353, subdivision (a), unlawfully administering a controlled substance to minors. He also was charged with having previously been convicted of a felony. Appellant was arraigned on the charges, pleaded not guilty to both counts and admitted his prior conviction...
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Opinion Petitioner seeks a writ of habeas corpus to relieve him of the partial restraint imposed by a finding of prior felony conviction contained in the abstract of judgment. On December 7, 1976, in Orange County Superior Court, petitioner pleaded guilty to sale of heroin (Health & Saf. Code, § 11352) and admitted a prior felony conviction. (Orange County Super. Ct. No. 36189.) In the instant pr...
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Opinion By jury trial appellant was convicted of robbery with infliction of great bodily injury (Pen. Code, §§ 211, 12022.7) and of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)). He was sentenced to state prison and appeals, contending that the trial court erred in giving certain instructions on accomplice testimony. We find no merit to this conte...
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Opinion Appellant, Carrie W., a 16-year-old minor, admitted the allegations of a petition filed under Welfare and Institutions Code section 602, 1 charging her with violation of Penal Code section 502.7, subdivision (a)(1) (obtaining telephone services by fraud). At the dispositional hearing held June 15, 1978, she was committed to the CYA for a maximum term of three years. 2 She appeals, c...
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Opinion The Agricultural Labor Relations Board (hereafter ALRB or Board) appeals from an order of the Riverside Superior Court denying its application for preliminary injunctions pending disposition of unfair labor practice charges against four separate agricultural employers: Cy Mouradick & Sons, Coachella Vineyards, Richard Peters Farms and Hariy Carian (hereafter respondents). United Farm Work...
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89 Cal.App.3d 687 (1979) 152 Cal. Rptr. 754 COUNTY OF SANTA CLARA, Plaintiff and Respondent, v. SUPPORT, INCORPORATED, Defendant, Cross-complainant and Appellant; JOHN SCHALLER, Defendand and Appellant; SANTA CLARA COUNTY DISTRICT ATTORNEY et al., Cross-defendants and Respondents. SUPPORT, INCORPORATED, Cross-complainant and Appellant, v. STATE DEPARTMENT OF BENEFIT PAYMENTS, Cross-defendant and ...
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Opinion Plaintiff, David K. Spindle, M.D., appeals from a judgment of dismissal (Code Civ. Proc., § 58Id), made following the sustaining of the general demurrers of the defendant, Chubb/Pacific Indemnity Group, to plaintiff’s first amended complaint for fraud and for bad faith. The demurrer to the fraud count was sustained without leave to amend; that to the bad faith count was sustained ...
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Opinion Appellant, Joe Patterson Cropper, was convicted of selling heroin. (Health & Saf. Code, § 11352.) The trial court subsequently sentenced appellant to state prison for the term prescribed by law. The appeal lies. (Pen. Code, § 1237, subd. 1.) Appellant’s sole contention on appeal is that he was deprived of his constitutional right to the effective assistance of counsel when hi...
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89 Cal.App.3d 722 (1979) 152 Cal. Rptr. 822 MITCHELL G. VEITCH, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. 45108. Court of Appeals of California, First District, Division Two. February 26, 1979. *724 COUNSEL Robert L. Mezzetti and M. Jean Starcevich for Petitioner. No appearance for Respondent. *725 Evelle J. Younger, Attorn...
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Opinion Appellant Vilner operates a restaurant in Marin County. In 1970 he entered into a written night depository agreement with respondent Crocker. The agreement included a standard clause exculpating the bank from liability for loss except for losses attributable to gross negligence or willful misconduct. Appellant regularly used the night depository service of respondent in Novat...
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89 Cal.App.3d 739 (1979) 153 Cal. Rptr. 69 THE PEOPLE, Plaintiff and Respondent, v. THE MUNICIPAL COURT FOR THE SAN FRANCISCO JUDICIAL DISTRICT OF THE CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent; LOMIA STREET et al., Real Parties in Interest and Appellants. Docket No. 44563. Court of Appeals of California, First District, Division Three. February 26, 1979. *742 COUNSEL Cumings, Jor...
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*755Opinion Appellant was convicted of a violation of Penal Code section 12021 (felon in possession of a firearm).1 He was sentenced to state prison. Thereafter, this appeal followed presenting several issues. A. May the Prosecution Be Required to Accept Defendant’s Stipulation That He Had Been Convicted of a Felony and the Fact of That Conviction Be Kept From the Jury When the Prior Felony Convic...
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*768Opinion This is an appeal from an order granting disbursement of funds in favor of respondent Henry G. Cole, a retired California Highway Patrolman (hereinafter Cole), and against the appellant, Board of Administration, Public Employees’ Retirement System (hereinafter the System). On February 22, 1969, an automobile, alleged to have been owned by Curtola, was left on the premises of a restaura...
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Opinion Appellant and Jack Ginsburgs were charged by information with the crime of murder, in violation of Penal Code section 187. By amendment adding a second count appellant was also charged as an accessory after the fact of the same crime, in violation of Penal Code section 32. Appellant’s trial by jury was severed and he was acquitted on the murder charge but found guilty as an accessory. P...
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Opinion Frank Vallejos, Jeffrey Adrian.Villagran and Robert E. Field appeal from orders of dismissal of their actions for restitution, accounting and injunctive relief following sustaining of general demurrers. At the request of defendants the three matters were consolidated for briefing, oral argument and decision by this court. The gravamen of the actions is that, during the year 1976, defend...
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89 Cal.App.3d 789 (1979) 153 Cal. Rptr. 65 THE PEOPLE, Plaintiff and Respondent, v. ERNEST JOSEPH ROSALEZ, JR., Defendant and Appellant. Docket No. 33083. Court of Appeals of California, Second District, Division Three. February 26, 1979. *791 COUNSEL Henry P. Crabtree, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chi...
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Opinion After the trial court denied petitioner’s motion to quash service of summons (Code Civ. Proc., § 418.10) 1 and to dismiss the action under section 581a, he timely applied for a writ of mandate in this court (§ 418.10, subd. (c)). The case raises the issue of the proper interpretation of abode service under the provisions of section 415.20, subdivision (b), 2 particularly the require...
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89 Cal.App.3d 804 (1979) 152 Cal. Rptr. 868 In re DONALD B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DONALD B., Defendant and Appellant. Docket No. 33009. Court of Appeals of California, Second District, Division Five. February 27, 1979. *805 COUNSEL Jack K. Livingston, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. ...
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89 Cal.App.3d 809 (1979) 153 Cal. Rptr. 89 THE PEOPLE, Plaintiff and Respondent, v. JOSEPH MICHAEL REMIRO et al., Defendants and Appellants. Docket No. 8309. Court of Appeals of California, Third District. February 27, 1979. *815 COUNSEL Richard K. Turner, James D. Garbolino, under appointments by the Court of Appeal, Alan V. Pineschi and Katherine Mader for Defendants and Appellants. Evelle J. Y...
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*859 Opinion Defendants Vernon and Cornier, jointly charged with but separately tried by jury for the murder of Leroy McLaughlin, were each found guilty of the lesser included offense of voluntary manslaughter. (Pen. Code, § 192, subd. (1).) Their cases were consolidated on appeal. In August 1977, defendant Vernon was living outdoors in the park, known as Memorial Park in Susanville, Lassen...
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Opinion These are appeals from a judgment granting a peremptory writ of mandate ordering the City Council of Woodland to reinstate Marcia Kimura to her former position as a member of the *873 Planning Commission of the City of Woodland. The city council appeals from that portion of the judgment granting the peremptory writ of mandate. Kimura cross-appeals from that portion of the judgment den...
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Opinion Police Officer Daniel Roccaforte, Jr. (Roccaforte) was injured while making an arrest. His employer, the City of San Diego (City), first accepted responsibility and paid Roccaforte full pay injury leave benefits until April 1, 1977. The City then terminated the injury leave pay and thereafter denied disability retirement pay and at the same time refused to reinstate him to his duties as...
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Opinion Defendants Santa Ana Community Hospital Association, a corporation, and Santa Ana-Tustin Community Hospital, a corporation, have appealed from a judgment enjoining them from using the name “Santa Ana-Tustin Community Hospital” for their hospital in the City of Santa Ana. The essential basis of the judgment is the finding that that name is confusingly similar to “Tustin Community H...
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Opinion Community Church of Palm Springs (hereafter Community Church or local church) was for many years affiliated with United Presbyterian Church in the United States of America 1 (hereafter UPCUSA or general church). In 1968, after unsuccessfully attempting to negotiate a mutually agreeable termination of the relationship, Community Church unilaterally terminated its affilia...
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89 Cal.App.3d 934 (1979) 152 Cal. Rptr. 870 ROBERT W. KRUEGER et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; SECURITY PACIFIC NATIONAL BANK et al., Real Parties in Interest. Docket No. 55125. Court of Appeals of California, Second District, Division One. February 28, 1979. *936 COUNSEL Hughes, Hubbard & Reed, William H. Levit, Jr., William T. Bisset, Ann C. Scales, ...
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89 Cal. App. 3d 962 (1979) 153 Cal. Rptr. 117 MARIAN MORRIS et al., Plaintiffs and Appellants, v. THE STATE OF CALIFORNIA, Defendant and Respondent. Docket No. 53778. Court of Appeals of California, Second District, Division Three. February 28, 1979. *963 COUNSEL Moriarity & Tepper, John L. Moriarity and Gerald H.B. Kane, Jr., for Plaintiffs and Appellants. Harry S. Fenton, Richard G. Rypinsk...
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*976Opinion Defendant Mack appeals his conviction by the trial court for grand theft in violation of Penal Code section 487.1 He contends that his motion to set aside the information under section 9952 was improperly denied. The following statement of facts is based upon the preliminary hearing transcript. Richard Robbins, a detective with the Ventura Police Department, was assigned to investigate...
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Opinion This is an appeal from a judgment of conviction on several Penal Code violations (Pen. Code, §§ 261, 288a and 288) 1 after *995 the jury rejected appellant’s plea of not guilty by reason of insanity. The facts of the offense are not at issue herein and no purpose would be served by relating the sordid details. In August 1975, appellant initially entere...
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Opinion The above named decedent left a will and a codicil which were regularly admitted to probate. In subsequent proceedings upon her estate, the probate court entered an “Order Fixing Inheritance Tax And Directing Executor To Pay” in which it actually made four separate orders in enumerated parts. The executrix of the estate appeals from the entire order, but challenges only one part. The Stat...
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Opinion The several appellants are former certificated employees of respondent Berkeley Unified School District. Their employment was terminated in 1976 because of the reduction or discontinuance of certain school programs. They subsequently commenced this proceeding in mandamus against respondent district and its governing board (hereinafter collectively identified as District), alleging that ...
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Opinion Appellant was convicted in the Los Angeles Superior Court of robbery with a firearm in El Monte on 4 April 1977, with two prior felony convictions. He appeals the judgment. Appellant came to the attention of the police on 4 May 1977 when he was arrested in Alhambra driving an automobile with a loaded .38 Colt revolver in a jacket in the back seat. On May 6 a misdemeanor complaint was filed...
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Opinion This litigation is concerned with certain legislation regarding automobile dealers and dealerships (Veh. Code, §§ 3000-3069) 1 which became operative on July 1, 1974. In pertinent part, it provides that any *1037 existing automobile dealer may prevent the establishment or relocation of additional dealerships in the “same line-make” within 10 miles of his de...
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Opinion Defendant Olivia Newton-John, a singer, appeals a preliminaiy injunction restraining her from recording for anyone other than plaintiff MCA Records while MCA’s action is pending “or until April 1, 1982, if that date shall occur during the pendency of this action.” In reviewing a preliminary injunction on appeal, we interpret the facts in the light most favorable to the prevai...
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90 Cal.App.3d 33 (1979) 153 Cal. Rptr. 156 THE STATE OF CALIFORNIA EX rel. STATE PUBLIC WORKS BOARD, Plaintiff and Respondent, v. HERBERT B. TURNER et al., Defendants and Appellants. Docket No. 16684. Court of Appeals of California, Fourth District, Division One. March 2, 1979. *35 COUNSEL Luce, Forward, Hamilton & Scripps, Louis E. Goebel and Ronald W. Rouse for Defendants and Appellants. Ev...
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*45 Opinion On an information charging defendants with five separate counts of grand theft (Pen. Code, § 487a: felonious theft of the carcass of a hog), three counts of criminal trespass (Pen. Code, § 602, subd. (m)) and one count of auto theft (Veh. Code, § 10851), the jury returned a verdict finding defendant Gardner guilty of all but one of the grand theft charges 1 ...
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Opinion This is an appeal from an order denying petitioner husband’s application for modification of the interlocutory *92 judgment 1 and from an order denying petitioner’s request for findings of fact and conclusions of law. 2 The parties were married for over 31 years prior to the interlocutory judgment. The court divided the community property so that property worth $41,165.89 went t...
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*110 Opinion James E. O'Connor et al., and Luxor Cab Company et al., seek writs of mandate to compel respondent superior court to issue preliminary injunctions to prevent real parties in interest, the City and County of San Francisco, the San Francisco Police Commission, Charles R. Gain, and the Controller of the City and County of San Francisco, from enforcing a measure adopted ...
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Opinion Plaintiffs appeal from an order (judgment) directing defendants (California Highway Patrol [CHP] and certain of its officers) to disclose only limited portions of the California Highway Patrol manual and officer’s guide pursuant to the Public Records Act (PRA) (Gov. Code, § 6250 et seq.). 1 Plaintiffs are a state taxpayer (see Code Civ. Proc., § 526a) David M. Fishlow, ...
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Opinion This is a consolidated appeal from a portion of the judgment entered in Friends of Tom Suitt v. The Fair Political Practices Commission (FPPC), Sacramento Superior Court action No. 270251 (hereinafter called Suitt v. FPPC), and from the judgment entered in Fair Political Practices Commission v. Suitt et al., Sacramento Superior Court action No. 270419 (hereinafter called FPPC v. Suitt)....
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Opinion Petitioner applies for a writ of prohibition and/or mandate following the trial court’s issuance of an order compelling petitioner to answer an interrogatory calling for disclosure of the names and addresses of experts it had consulted with and who might be called to testify at a presently unscheduled trial. *137 “Preliminarily, it may be observed that the prerogativ...
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Opinion Defendants appeal from the judgments finding them guilty of violating several provisions of the Subdivided Lands Act (Bus. & Prof. Code, §§ 11010, 11018.1, 11022, 11023). Defendants were found to have violated the act by: (I) failing to file with the Commissioner of Real Estate a notice of intention to subdivide and sell subdivided parcels of land; (2) offering the parcels for sal...
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Opinion Plaintiff George T. Felix (Felix) appeals from an order dismissing his complaint after the trial court sustained defendant Morty ZlotofPs (Zlotoff) demurrer without leave to amend. Felix, a licensed building designer, alleged in alternating pleading counts breach of implied contract (count one), of oral contract (count two), and of an unsigned written contract (count three). He cl...
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*166 Opinion Defendant Danny Floyd Williamson waived jury and after trial by the court was found guilty of 13 counts of a 14-count information. Williamson was found not guilty of count twelve. All allegations regarding Penal Code sections 12022.5 and 12022, subdivision (a) were found to be true and the five priors charged were found to be proven. The Pleadings Williamson was charged with ...
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Opinion A juiy convicted defendant Donnie Dozier of kidnaping (Pen. Code, § 209, subd. (b)), 1 count one, of robbeiy (§ 211), count two, assault (§ 245, subd. (a)), count three, of sodomy (§ 286, subd. (c)), count four, and of forcible oral copulation (§ 288a, subd. (c)), count five. Further, the jury found Dozier was armed with a dangerous or deadly weapon within the meaning of section 12022...
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Opinion Plaintiff appeals from a judgment denying his petition for a writ of mandate to compel defendant school district to appoint him as a probationary teacher. Upon the filing of the petition, an alternative writ and order to show cause were issued. A hearing was held, after which the trial court entered a minute order indicating that plaintiff had no clear right to the requested relie...
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Opinion Maurice S. appeals from a judgment of the juvenile court committing him to the Youth Authority upon findings that he was a person coming within the provisions of Welfare and Institutions Code section 602 in that he took personal property from the possession and immediate presence of a victim (Pen. Code, § 211) and that he escaped from the juvenile hall (Welf. & Inst. Code, § 871)....
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Opinion Loris O. Johnson and Vonda Johnson appeal from a judgment of dismissal which was rendered after the court sustained a demurrer to their complaint for inverse condemnation. Appellants alleged that they own property near the proposed route of the Guadalupe Freeway, a project being planned by respondent State of California. The project originated in 1960 as a proposed expressway to be *...
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*Supp. 15Opinion The People appeal from an order of the municipal court which refused to vacate a 1974 order granting respondent relief under the provisions of Penal Code section 1203.4a.1 The chronology is as follows: 1. June 16, 1967. Respondent was convicted of violating section 415. Probation was not granted. (The exact sentence imposed is not disclosed in our record.) 2. September 27, 1973. R...
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Opinion I Case Background On February 7, 1975, defendant was arrested for drunk driving (Veh. Code, § 23102, subd. (a)). A complaint was filed in Stockton Municipal Court three days later, alleging a prior 23102, subdivision (a) conviction. Defendant entered a plea of not guilty. On April 26, 1977, two years and two and one-half months later, after numerous legal maneuvers and continuances immate...
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Opinion Appellant was convicted of a violation of Vehicle Code section 22348, subdivision (a)1 which reads as follows; “(a) Notwithstanding Section 22349, 22356, or any other provision of this chapter to the contrary, no person shall drive a vehicle upon a highway at a speed greater than 55 miles per hour.” The People’s witness, a City of Pomona police officer, testified that he observed appellant...
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Opinion The People appeal from an order of Marin County Superior Court granting a motion to suppress and dismissing an information for the import and transport of hashish in the State of California in violation of section 11360, subdivision (a), of the Health and Safety Code. Uncontroverted evidence produced at a preliminary examination and made part of the record at the hearing de novo revea...
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Opinion A school district appeals from a judgment ordering it to reinstate, with back pay, a school teacher discharged by it. We modify the judgment and affirm it as so modified. *248 Petitioner had been, for some years, a certified teacher in appellant district. In the summer of 1974, she experienced severe emotional disturbances, as a result of which she was granted a one-year leave of ab...
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*255Opinion Pacific Gas and Electric Company (P. G. & E.) brought suit in Sutter County against defendant Michael Alexander, and in Tehama County against defendants Ralph Joseph Ramirez and Alfred Ramirez. In each suit P. G. & E. alleged that the defendants had been negligent in the operation of their automobiles, causing the destruction of wooden power poles belonging to P. G. & E. In each case ...
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Opinion The guarantees of due process of law and religious freedom under the state and federal Constitutions do not prohibit the United Methodist Church, a legal entity under Code of Civil Procedure section 388, subdivision (a), from being sued. 1 We reverse the order of the *262 trial court quashing service of summons on the United Methodist Church. 2 ...
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Opinion The Director of the Department, of Health and the department appeal from a summaiy judgment against them in an action involving the Health and Planning Act adopted in 1976. 1 We affirm the judgment. On August 5, 1976, petitioner hospital entered into an agreement to acquire the use of a nuclear full-body scanner. Admittedly, the value of that scanner exceeded $500,000. On September ...
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Opinion This is an appeal taken on behalf of a 17-year-old boy who was adjudicated a ward of the juvenile court (Welf. & Inst. Code, § 602) and committed to the Youth Authority upon findings that he had molested an 11-year-old girl (Pen. Code, § 647a) and compelled a 7-year-old girl to orally copulate (Pen. Code, § 288a). The opening brief contends (1) commitment to the Youth Authority was an abu...
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Opinion By an action for declaratory relief plaintiff Kathie (Bonnet) Kerlin seeks a declaration that Government Code section 21205 is unconstitutional. She thereby seeks to collect death benefits from the Public Employees Retirement System (PERS) as the named beneficiaiy of her former husband, Charles K. Bonnet. Plaintiff challenges a substantive and a procedural ruling of the trial court. ...
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Opinion Darrell T., a minor, appeals from the juvenile court order of wardship (Welf. & Inst. Code, § 602) upon a finding that he murdered Bradley Kevin Phillips in violation of Penal Code section 187. He was committed to the California Youth Authority (CYA) and a previous order for camp community placement was terminated. He now appeals from the judgment (order of commitment), contending...
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*344 Opinion Coronet Manufacturing Company, Inc. (Coronet) petitioned for a writ of mandate to compel the Superior Court of Los Angeles County to enter an order sustaining a demurrer to real parties in interest’s second amended complaint for wrongful death. The superior court’s overruling of the demurrer was apparently based on the holding in Smeltzley v. Ni...
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Opinion Respondent sued appellant to recover for injuries sustained when a truck owned by appellant collided with one owned and driven by respondent. It was alleged the driver of appellant’s vehicle was appellant’s agent, but it is conceded no direct evidence on the contention, denied in appellant’s answer to the complaint, was introduced at trial. The sole question on appeal is whether, ...
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*359 Opinion Appellant was convicted after a bifurcated jury trial of murder in the second degree (Pen. Code, §§ 187, 189) with the finding that he used a firearm under Penal Code section 12022.5. The same jury found he was sane at the time the offense was committed. The court denied probation, struck the jury’s finding on the use of a firearm, and sentenced appellant to state prison for the ...
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*370 Opinion Defendant Willie Rodgers appeals from a judgment based upon a jury’s verdicts convicting him of forcible oral copulation (Pen. Code, § 288a) and burglary (Pen. Code, § 459). We summarize the relevant evidence as it was presented at the trial. The victim of the charged offenses was one Olivia, a 17-year-old emotionally disturbed black girl who was undergoing treatment at a pub...
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*376Opinion Appeals from a judgment determining distribution of the estate of Gertrude Elkeles, deceased. The issue is whether decedent intended to include certain choses in action (checking account, savings account, savings bond, and 10 savings certificates) in a bequest of “my personal property and effects located at my residence.” The papers evidencing decedent’s ownership of these choses-in-ac...
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Opinion The city appeals from a judgment dismissing its complaint as against defendant and respondent company, after that defendant’s demurrer had been sustained without leave to amend. We affirm the judgment. *381On or about March 9, 1961, the city and defendant entered into an agreement whereby the city was granted the right to construct improvements on certain real property of defendant located...
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*385 Opinion The juvenile court found that the minor was a person who came within the provisions of section 602 of the Welfare and Institutions Code in that he had violated section 192, subdivision 3 of the Penal Code—vehicular manslaughter. There is no dispute concerning the sufficiency of the evidence which showed that the minor, intoxicated, drove a station wagon which collide...
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Opinion Plaintiff Nellie G. Monroe (wife) appeals from the order granting a summary judgment in favor of her husband Charles H. Monroe (husband) in an action for damages for personal injuries she sustained in an automobile accident. The wife, a passenger, was injured when the vehicle driven by her coowner husband collided with another vehicle. She charges the husband with negligence, caus...
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*395 Opinion Mathews Cadillac, Inc. (Mathews) appeals from an order and judgment of dismissal made pursuant to Code of Civil Procedure section 581a 1 for failure to have its judgment entered within three years after service of summons on defendant where no answer had been filed. On March 16, 1971, Mathews filed its complaint for breach of contract, breach of warranty, ...
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Opinion This appeal involves the scope of immunity of an employee under Labor Code section 3601, which makes the right to recover workers’ compensation for injury or death the exclusive remedy “against any other employee of the employer acting within the scope of his employment, . . .” Plaintiffs (husband and wife) sued husband’s *402 coemployee (defendant) and certain others...
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Opinion Following a jury trial, Juan Jose Alva was convicted, as charged, of incest, in violation of section 285 of the Penal Code (count I), the commission of lewd and lascivious acts upon a child under the age of 14 years, in violation of section 288 of the Penal Code (count II), and unlawful sexual intercourse, in violation of section 261.5 of the Penal Code (count III). Defendant was sent...
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Opinion Plaintiff Amit Peles appeals from the denial of his “Petition for Writ of Mandate to Reinstate Student After Expulsion From *434 University.” The trial court denied the petition after sustaining defendants’ demurrer on the ground that the action was barred by the statute of limitations. In early 1973 plaintiff, who was then a graduate student engaged in a master’s program at Califor...
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Opinion A four-count information charged defendant with grand theft auto (Pen. Code, § 487, subd. 3), unlawful taking of an automobile (Veh. Code, § 10851), receiving stolen property (Pen. Code, § 496), and willful injury to insured property with intent to defraud (Pen. Code, § 548). It was stipulated that a motion to suppress evidence pursuant to Penal Code section 1538.5 would be submitted on...
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Opinion Plaintiff Helen L. Gorman and defendant Harold J. Gorman were formerly married to each other and will be referred to in this opinion as former wife and former husband. In 1972, former wife employed defendant Gordon T. Shepard, an attorney, to represent her in an action to secure a dissolution of the marriage. Default proceedings were had and the marriage was dissolved in 1972 by an inte...
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Opinion Appellant, Edith Jewell Thorndike, as executrix of the will of Charles Thorndike, deceased, has appealed from an order fixing inheritance tax. *471 The issue on appeal is whether the decedent-donee’s appointment to his daughter, Mary Elaine Ware (a taker in default), of a lesser interest than she would have received in default of appointment is legally effective as a...
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Opinion Petitioner seeks a writ of mandate directing respondent superior court to order the plaintiffs in an action under the Political Reform Act of 1974 to post a bond in a reasonable amount to cover petitioner’s costs as a party defendant therein. We issued an alternative writ of mandate in order to consider and determine the constitutionality of the bond provision of Government Code secti...
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*494 Opinion Defendants-appellants Ralph J. Steinberg, Richard MacQuiddy and Eleanor Graham-Armstrong (appellants) appeal from a judgment against them and in favor of plaintiff-respondent Neal Royer (Royer) in the amount of $200,000 jointly in compensatory damages and $2,000, $2,000 and $300 respectively in punitive damages. The judgment is the result of an action for libel and c...
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Opinion Norman Arno and Leonard Steer were convicted in the municipal court of three counts of possessing obscene films with intent to distribute them. (Pen. Code, § 311.2.) Their convictions were reversed by the Appellate Department of the Los Angeles Superior Court because of that court’s conclusion that evidence based upon a view of business premises occupied by defendants which was aided by t...
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Opinion The Department of Motor Vehicles (hereinafter referred to as the department) appeals from a superior court judgment granting a writ of mandate, which writ reversed the depart*541ment’s suspension of James Joyce’s driver’s license pursuant to Vehicle Code section 13353.1 *542Joyce was arrested for driving under the influence of alcohol. The arresting officer (hereinafter referred to as the ...
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Opinion Plaintiff and appellant, National Aircraft Leasing, appeals from a judgment of the superior court in favor of defendant and respondent, the State Board of Equalization of the State of California. Appellant sought recovery in superior court of sales or use taxes paid under protest by appellant’s assignor, National Airmotive Corporation. Both parties moved for summary judgment. The ...
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Opinion Appellants Levi Carter and Louis Cecil Suttle were charged jointly with the following crimes as contained in a four-count information filed on October 5, 1977: count I, robbery, in violation of section 211 of the Penal Code, 1 including an allegation that in the commission of the offense a principal was armed with a firearm within the meaning of section 12022, subdivision (a); count I...
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Opinion The appeal at hand involves the interpretation of the will of decedent Jesse C. Carley and deals with the specific issue of whether federal estate and state inheritance taxes should be borne by the residuary (probate) estate or the taxable estate of the decedent. The facts pertaining to the matter are simple, and may be stated as follows: Appellant Ann C. Hubbard is the niece of the deced...
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Opinion This is an appeal by the State Department of Fish and Game 1 (Department) from a judgment denying its petition for a writ of mandate to compel the State Water Resources Control Board (Board) 2 to issue a permit for the “in-stream” appropriation of water to provide minimum flow guarantees during low months to protect the state’s beneficial interest in the fish...
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*630 Opinion Plaintiff George P. Post sought injunctive and declaratory relief in an amended and supplemental complaint which challenged the constitutionality of Public Resources Code section 6922, enacted as part of the Geothermal Resources Act of 1967. 1 Named as defendants were Edward V. Prati, John T. Sink, Peter H. Flood, Richard J. Wall as trustee for children ...
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Opinion Plaintiff John Prohoroff brought an action for personal injuries against defendant Kawasaki Kisen Kaisha, Ltd., a corporation, pursuant to section 905(b) of the Longshoremen’s and Harbor Workers’ Compensation Act (33 U.S.C. § 901 et seq.), hereinafter sometimes referred to as LHWCA. Continental Insurance Company filed a complaint in intervention, seeking reimbursement from defenda...
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Opinion Petitioner appeals from an order, made pursuant to section 1287.2 of the Code of Civil Procedure, dismissing its petition to confirm the award of an arbitrator. In June 1976, petitioner and respondent entered into a written agreement whereby petitioner agreed to perform certain work of repair and painting on a vessel owned by respondent. The agreement was in a printed form us...
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Opinion Defendant appeals from a judgment sentencing him to state prison after a jury found him guilty of second degree burglary. (Pen. Code, §§ 459, 460.) *660The sole issue is whether the trial court based its sentencing determinations on incorrect data when it declared that defendant was ineligible for probation under Penal Code section 1203, subdivision (d). (See In re Huddleston (1969) 71 Cal...
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Opinion On appeal from a summary judgment entered in favor of respondents, the single question presented is whether the provisions of Revenue and Taxation Code section 209.5 1 are restricted solely to vessels used or to be used in the transportation of freight or passengers as determined below. Our analysis compels a negative answer requiring reversal. Facts The f...
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Opinion We issued an alternative writ of mandamus in order to examine the questions presented by the pretrial order disqualifying petitioner’s privately retained counsel in a criminal proceeding. We *672conclude that neither jurisdictional excess nor abuse of discretion is manifested as claimed. Accordingly, the relief requested is denied.1 Facts The record discloses the following salient circu...
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Opinion Plaintiffs appeal from a summary judgment adverse to them in an action for wrongful death. We reverse. On the evening of June 22, 1975, plaintiffs’ 19-month-old son developed a rash and a high fever. They took the child to defendant hospital where *702 he was examined by defendant doctor. The doctor diagnosed the condition as “flu” and told plaintiffs to take the child home and cons...
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Opinion The question presented by this habeas corpus proceeding is whether, in fixing petitioner’s sentence pursuant to Penal Code section 1170.2, subdivision (b), the Community Release Board (CRB) erred in treating the sentence in case No. AO 16728 as consecutive to that in case No. A327560. The facts are these: On October 27, 1976, petitioner was sentenced to state prison in case No. AO 16728 a...
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Opinion The Quandary In this case we must determine whether the Supreme Court in People v. Pettingill, 21 Cal.3d 231 [145 Cal.Rptr. 861, 578 P.2d 108], has established an inflexible rule which has created an impenetrable barrier against any subsequent interrogation of an in-custody suspect after he has once invoked his Miranda rights. After an analysis of Pettingill and a considerat...
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*740 Opinion Plaintiff John Brandt appeals from a judgment denying his petition for a peremptory writ of mandate to compel defendant David Fox, Commissioner of the Department of Real Estate (hereafter Commissioner) to set aside his decision denying plaintiff a license to act as a real estate salesman. The principal question raised by this appeal is whether denial of plaintiff’s a...
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Opinion Defendant Robert Gnaizda in his capacity as Director of the California State Department of Health (hereafter appellant or DOH) appeals from a judgment rendered in an action for declaratory relief. The stipulated facts, along with the pertinent portions of the record, reveal the following background: *753 On or about April 8, 1972, John Roushkolb, a minor was injured ...
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Opinion Access Personnel, Inc., seeks a writ directing respondent superior court to vacate its orders denying discovery sought by petitioner in an underlying action and denying petitioner’s motion for consolidation of the same action with another pending in the same court. Access Personnel, Inc., operates several employment agencies in San Francisco; one office, known as Sales Dimensions, spe...
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Opinion Plaintiff City of Los Angeles brought an action for condemnation against defendants Robert A. and Judy T. Waller, Edward W. and Irene M. Gibb, David E. and Bernice Bradley, Lew E. and Joanne Coppersmith, Hilja M. Smythe, and Robert P. and Jean L. Andrews. The defendants brought an action for inverse condemnation against the City of Los Angeles. The cases were consolidated for trial, as ...
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Opinion Defendants appeal from a judgment adverse to them in an action by an insurance company for declaratory relief. We affirm the judgment. In May of 1974 the insurer issued its policy of liability insurance to Mr. and Mrs. Siemer. In November of that year, their son John, while driving a Chevrolet automobile owned by him and not a described vehicle under the policy, was involved in an acc...
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Opinion Defendant North Star Reinsurance Corporation (North Star) appeals from a judgment in favor of plaintiffs Kaiser Foundation Hospital, et al., (Kaiser) and against North Star in the amount of $59,168.25. Facts In 1963 certain of the underwriters at Lloyd’s, London (Lloyd’s) issued three insurance policies to Kaiser. Together they provided liability coverage for personal in...
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*799Opinion Plaintiffs appeal from a judgment, after trial by the court, denying relief sought in their combined petition for writ of mandate and complaint for injunction and damages. Defendant San Juan Suburban Water District (district), is a community services district organized and existing under title 6, division 2, of the Government Code of the State of California. The individually named resp...
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Opinion Plaintiff, Monty S. Mitchell, was employed as a psychiatric technician at Porterville State Hospital. His duties included the care of a severely retarded paraplegic male patient. On the morning of August 16, 1976, plaintiff removed the patient from his bed and replaced his urine-soiled sheets. The patient was returned to the bed, dressed, and lifted from the bed to be placed in a ...
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Opinion Defendants (board) appeal from the trial court’s judgment, entered upon stipulated facts, ordering the board to consider, on its merits, plaintiff’s application to appropriate water from Redwood Creek in Marin County. The board had acted adversely on plaintiff’s application to appropriate water (from Jan. 1 to Dec. 31 of each year) flowing in Redwood Creek without taking possession of the...
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Opinion Petitioner is a minor in whose behalf a petition has been filed in juvenile court under Welfare and Institutions Code section 602. The juvenile court petition alleges the minor violated Penal Code sections 245 (assault with a deadly weapon) and 594 (vandalism). Counsel has been appointed to represent the minor in the juvenile court pursuant to Welfare and Institutions Code section 634. ...
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Opinion This is an appeal from an order denying a petition to compel arbitration. *846 There is no dispute as to the relevant facts. Appellant Office and Professional Employees Union, Local 29 and respondent Sea-Land Service, Inc., are parties to a collective bargaining agreement which has been operative at all times pertinent to this dispute. The agreement provides a proced...
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*856 Opinion By an amended information defendant was charged with three offenses. In count I he was charged with the murder (Pen. Code, § 187) of Sang Bong Park. In count II, he was charged with robbery (Pen. Code, § 211) of Park. In count III he was charged with robbery (Pen. Code, § 211) of Hwan Han Jong. In each count it was also alleged that, in the commission of the offense, defendant us...
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Opinion Plaintiff Herman Gonzales was a contractor, licensed by the Contractors’ State License Board under the provisions of the Contractors License Law found in Business and Professions Code sections 7000-7161. He commenced an action against defendant Concord Gardens Mobile Home Park, Ltd. (Concord Gardens), and others, to recover money owed him for services as such a contractor. Its fir...
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Opinion Defendant Carl Nephi Gibson (hereafter appellant or Carl) appeals from the trial court’s order awarding child support to petitioner Lenice Renee Richards (hereafter respondent or Lenice) and $2,800 arrears in favor of copetitioner Utah State Department of Social Services (hereafter State of Utah) in an action brought under the Revised Uniform Reciprocal Enforcement of Support Act of 196...
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Opinion The principal question presented by this appeal is whether section 13851 of the Revenue and Taxation Code is constitutional.1 That *888section provides for an unconditional exemption from inheritance taxation for intangible personal property owned by residents of the United States living outside of California. The exemption is extended to residents of foreign countries only on condition t...
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90 Cal.App.3d 895 (1979) 153 Cal. Rptr. 875 THE PEOPLE, Plaintiff and Respondent, v. WENDOL YARBER, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. BONNIE SUE YARBER, Defendant and Appellant. Docket Nos. 17077, 16836. Court of Appeals of California, First District, Division Three. March 23, 1979. *898 COUNSEL William D. Farber and Quin Denvir, State Public Defender, under appoin...
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Opinion On appeal from judgments of conviction for burglary, appellant contends that the trial court abused its discretion in imposing the upper term under the Determinate Sentencing Act (DSL). In particular, it is argued that the court erred in finding as circumstances in aggravation (1) that appellant was going to receive concurrent terms, and (2) that appellant’s prior record was poor. It is...
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Opinion In this case we undertake the delicate and difficult task of deciding whether or not to fashion a new cause of action. Appellant, in an able brief, states the underlying question: “The principal issue raised by this appeal is whether a county social services agency which has been entrusted with the sole responsibility for finding an infant an adoptive home may be held liable [for ...
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*948 Opinion The principal question in this proceeding is whether allegations of “special circumstances” made in an accusatory pleading charging murder, and portending punishment by death as provided in section 190 and related sections of the Penal Code, 1 may be challenged on a motion addressed to the pleading pursuant to section 995. The proceeding has reached this court (Division Four) d...
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*963 Opinion In an indictment returned in respondent court, the Marin County Grand Jury charged petitioner Mack Henry Page III with the murder of Sandra Corbin in violation of section 187 of the Penal Code. 1 The grand jury also alleged in the indictment, among “special circumstances” which may permit punishment by death pursuant to section 190, that the murder had been committed during the...
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Opinion Following a plea of nolo contendere to a charge of violating Penal Code section 245 subdivision (a) (assault by means of force likely to produce great bodily injury), Danny Lynn Hurt was found not guilty by reason of insanity and eventually committed to the California Department of Mental Health for placement in a state hospital for a minimum of 90 days. Hurt has appealed from the order...
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Opinion The recent Supreme Court opinion of Rice v. Alcoholic Bev. etc. Appeals Bd. (1978) 21 Cal.3d 431 [146 Cal.Rptr. 585, 579 P.2d *981 476], which invalidated California’s price maintenance laws relating to retail sales of distilled spirits, gives rise to this litigation. By writ of mandate Midcal Aluminum, Inc., seeks a determination as to the valid...
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Opinion Petitioner Barbara Burch appeals after the superior court denied her petition for writ of mandate on review of a final administrative decision fixing the amount of her grant for Aid to Families with Dependent Children (AFDC) (Code Civ. Proc., § 1094.5; Welf. & Inst. Code, § 10950 et seq., § 11200 et seq.). On October 12, 1973, Burch applied for AFDC at the San Diego County De...
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Opinion The defendant appeals from the judgment entered upon his plea of guilty to a misdemeanor violation of receiving stolen property (Pen. Code, § 496, subd. 1). The plea of guilty was entered after his motion to suppress evidence under Penal Code section 1538.5 was denied. 1 *998 Defendant contends Vehicle Code section 2805 is unconstitutional 2 and thus his consent given in respons...
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Opinion Statement of the Case On May 16, 1978, a complaint was filed in the Mariposa Justice Court charging petitioners Skeet Dewayne Phelan and Carol Jean Phelan with cultivating marijuana in violation of Health and Safety Code section 11358. Petitioners pled not guilty and at the preliminary hearing moved to suppress the evidence of marijuana seized on their premises (Pen. Code, § 1538.5). ...
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Opinion Defendant-appellant Foothill Junior College District of Santa Clara County (hereafter Foothill) appeals from a judgment in Santa Clara County Superior Court following a jury verdict awarding plaintiff-respondent Jasper Construction Company (hereafter Jasper) $742,133.96 upon its complaint for damages for breach of contract stemming from alleged defects in plans and specifications ...
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91 Cal.App.3d 19 (1979) 153 Cal. Rptr. 777 MARTIN J. SEGURA, a Minor, etc., Plaintiff and Appellant, v. FRANKLIN BRUNDAGE et al., Defendants and Respondents. Docket No. 53064. Court of Appeals of California, Second District, Division Three. March 27, 1979. *21 COUNSEL Thomas T. Anderson, James W. Parkinson and Steven J. Weinberg for Plaintiff and Appellant. Kirtland & Packard and Robert C. Ba...
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Opinion Plaintiffs Margaret Miller (hereinafter Miller) and her adult children (Lariy, Michael and Karen Miller) appeal from a summary judgment in favor of defendants Lewis Metzinger (hereinafter Metzinger) and Sepulveda & Metzinger, a professional corporation, in plaintiffs’ suit for attorney malpractice. A prior action for wrongful death (medical malpractice against two doctors and...
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*45 Opinion After practicing law in the Midwest for 20 years, Walter F. Kerrigan moved to California in 1971, passed the attorneys’ bar in 1973, and soon thereafter applied for a beginning position in the criminal division of the San Diego City Attorney’s office. Of the many applicants interviewed, five young attorneys were hired, but 55-year-old Kerrigan was not. Believing he was rejected as...
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Opinion John C. Greatorex appeals from a denial of his writ of mandamus by the Superior Court of San Diego County. The single issue on appeal is whether a Workers’ Compensation Appeals Board’s finding that an injury is work related is res judicata in a later application for benefits made to a City Employees’ Retirement Fund. We hold it is and reverse the denial of the writ. Greatorex had a he...
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Opinion Plaintiff, a medical doctor, petitioned the superior court for a writ of mandate to compel defendant Loma Linda Community Hospital Corporation to set aside its decision not to reappoint him as an associate member of the medical staff and to restore his hospital privileges. The court found that the hospital made its decision without affording plaintiff a fair hearing and entered ju...
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Opinion Sturdy Northern Sales, Inc., Sturdy Dog Foods, Inc., Richard E. Walther, and Randy Walther appeal from a judgment in the net amount of $98,751, together with costs, in favor of respondent William J. Mayes. On January 29, 1975, Mayes filed a complaint for damages against appellants; he alleged breach of a franchise agreement and conspiracy to destroy his business. Defendants a...
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*98Opinion Real parties are owners of approximately 17 of the 40 lots in the Pacific View Estates subdivision, located west of Highway 1 between Bodega Bay and the Russian River. The property was originally owned entirely by real party Tidwell, who subdivided it in 1967 and has since sold some of the lots. As of the effective date of the 1972 Coastal Act (former Pub. Resources Code § 27000 et seq...
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*113 Opinion Plaintiff, Screen Actors Guild, Inc., appeals from a declaratory judgment decreeing that “residuals,” partially hejd abroad by it on behalf of its members and pursuant to a specific bylaw, are held, nevertheless, subject to escheat to the State of California after they have been unclaimed for a period of seven years by their owners under the Unclaimed Property Law (U...
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Opinion Dona Wilson appeals from an order denying her petition for revocation of the probate of a will of Jennie Vessels Obernolte, deceased, executed some two months before her death on December 21, 1974. The appeal lies. (Prob. Code, § 1240.) The fundamental issue on this appeal is whether there was before the trial court substantial evidence to support its key finding of fact “[t]...
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Opinion Defendant, Henry Sanchez Ramirez, appeals from the judgment imposed following his conviction of involuntary *135 manslaughter. 1 (Pen. Code, § 192, subd. 2.) The appeal lies. (Pen. Code, § 1237, subd. 1.) Defendant contends: (1) because the prosecution failed to establish the corpus delicti of involuntary manslaughter independently of his extrajudicial statements, the trial court ...
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Opinion Plaintiff, the California Chiropractic Association, appeals from summary judgment entered in favor of defendants in its action seeking declaratory and injunctive relief against defendants with respect to the administration of the Medi-Cal program. Plaintiff alleged that certain provisions of the Medi-Cal program, either as written or in their application, discriminated against plaintiff i...
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Opinion United Business Commission and D.H.E. Enterprises, Inc., appeal from a declaratory judgment which held the City of San Diego’s (City) on-premises sign ordinance (Ord. No. 11718 [new series] and its amendments) constitutional. For the reasons which we will discuss, we have concluded the ordinance, including the imposition of reasonable sign inventory fees, is a valid exercise of th...
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*187 Opinion Statement of the Case This is an appeal from a judgment entered pursuant to Civil Code section 232, subdivision (a)(6), declaring the minor David B. forever free from the custody and control of his only known parent, appellant Delores B., and referring David for adoption placement. The basis for the order severing the parental relationship was appellant’s inabil...
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*204 Opinion Kenneth Kunza and Pamela Mae Kunza, his wife, to whom for convenience we shall hereafter refer in the singular as Kunza, commenced an action against their neighbors, Duane U. Gaskell and Betty J. Gaskell, his wife, whom for similar reasons we shall describe as Gaskell. It concerned the boundary line dividing their respective properties. By the action Kunza, among oth...
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Opinion This case presents the issue — apparently one of first impression in California — whether an alternative felony-misdemeanor, when reduced to misdemeanor status more than a year after the date of the alleged crime, is barred by the one-year misdemeanor statute of limitations. The incident in question occurred on February 6, 1975, and led to the filing of a Penal Code section 243 charge (bat...
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*222 Opinion George F. Ladd, claimant to the heirship in the estates of James Noel Ladd and John Christopher Ladd, appeals from an order determining that Gloria B. Ladd (respondent) is the sole heir of both decedents. Gloria Ladd killed her two teenaged sons, James and John. Appellant concedes that the motivation for the killings was that respondent was contemplating suicide...
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Opinion Respondent court denied a motion for summary judgment. We issued an alternative writ of mandate on application of petitioners based on our conclusion the subject matter detailed in the *232 application is typical of numerous similar situations which impel disposition on the basis of the statute of frauds (Civ. Code, § 1624) 1 and requested respondent court ...
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91 Cal.App.3d 238 (1979) 154 Cal. Rptr. 110 THE PEOPLE, Plaintiff and Respondent, v. DONALD JOSEPH WIENER, Defendant and Appellant. Docket No. 8676. Court of Appeals of California, Fourth District, Division One. March 29, 1979. *241 COUNSEL Norman R. Atkins for Defendant and Appellant. Evelle J. Younger and George Deukmejian, Attorneys General, Jack R. Winkler, Chief Assistant Attorney General, D...
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*262 Opinion Shimshon Ben-Yehoshua, husband, appeals from an interlocutory decree of dissolution awarding custody of his three children to his wife, Leslie Ben-Yehoshua, and ordering him to pay child support, attorney’s fees and costs and also dividing certain property located in Israel. We shall reverse that part of the judgment awarding custody of the children and awarding child support and...
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Opinion Statement of the Case Respondent Darrel Ohls and his wife, Diane E. Ohls, were divorced in Oregon on September 21, 1971. In its divorce decree, the Circuit Court of *275 the State of Oregon, for the County of Linn, action No. 39484, entitled “Darrell L. Ohls, Plaintiff, vs. Diane E. Ohls, Defendant,” made a finding that respondent “is not the father of the minor ...
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91 Cal.App.3d 287 (1979) 154 Cal. Rptr. 74 THE PEOPLE, Plaintiff and Respondent, v. STEPHEN FRANK SANTIBANEZ, Defendant and Appellant. Docket No. 3223. Court of Appeals of California, Fifth District. March 29, 1979. *289 COUNSEL Philip C. Blanton, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger and George Deukmejian, Attorneys General, Jack R. Winkler, Chi...
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91 Cal.App.3d 293 (1979) 154 Cal. Rptr. 287 WESTERN DECOR & FURNISHINGS INDUSTRIES, INC., Plaintiff, Cross-defendant and Appellant, v. BANK OF AMERICA, Defendant, Cross-complainant and Appellant. Docket No. 43240. Court of Appeals of California, First District, Division Four. March 30, 1979. *298 COUNSEL Seyranian & Seibert and Hal F. Seibert for Plaintiff, Cross-defendant and Appellant. ...
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Opinion John Tsingaris and Rita Tsingaris appeal from an order denying a petition for relief from lateness in filing claims pursuant to the Government Tort Claims Act as a basis for bringing suit against the State of California, the County of San Mateo and Fred Arthur Wenger. *314The petition for relief was submitted upon declarations showing that Rita Tsingaris was seriously injured and her infan...
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91 Cal.App.3d 318 (1979) 155 Cal. Rptr. 208 CARMEL VALLEY VIEW, LTD., Plaintiff and Appellant, v. ERNEST MAGGINI, as Clerk, etc., Defendant and Respondent. Docket No. 44475. Court of Appeals of California, First District, Division Four. March 16, 1979. *319 COUNSEL Fulop, Rolston, Burns & McKittrick, Marvin G. Burns, Edmund S. Schaffer and K. Phillip Knierim for Plaintiff and Appellant. Iver E. S...
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Opinion This appeal from a conviction of robbery presents an issue apparently novel to the law of California. Involving a juxtaposition of the principles underlying Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525] and the constitutional right to effective representation, the matter at bench concerns the self-represented defendant’s right to s...
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91 Cal.App.3d 332 (1979) 153 Cal. Rptr. 895 THE PEOPLE EX REL. DEPARTMENT OF PUBLIC WORKS, Plaintiff, Cross-defendant and Appellant, v. PENINSULA ENTERPRISES, INC., et al., Defendants, Cross-complainants and Appellants. Docket No. 48731. Court of Appeals of California, Second District, Division Three. March 30, 1979. *339 COUNSEL Harry S. Fenton, Richard G. Rypinski, Joseph A. Montoya, Robert L. ...
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Opinion Plaintiff Triumph Precision Products, Inc. (hereinafter Triumph) brought an action in the municipal court for a money judgment against defendant Lifesaver Products, Inc. (Lifesaver), which action was subsequently settled. However, when Lifesaver failed to pay Triumph *364 according to the terms of the settlement, Triumph obtained a judgment on a surety bond against In...
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Opinion Plaintiff Robert Osborne appeals from an order denying his petition under Government Code section 946.6 for relief from failure to file a timely claim against the county for medical malpractice. Plaintiff was a patient at Rancho Los Amigos Hospital, owned by defendant County of Los Angeles, between December of 1967 and April of 1972. He entered that hospital for treatment for...
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*374 Opinion In this appeal plaintiff David Montgomery Titus, a minor, by his guardian ad litem, Denise Marie Cuthbert, seeks reversal of a judgment rendered on November 29, 1977, in favor of defendant Bethlehem Steel Corporation. On September 6, 1971, nine-year-old David Montgomery Titus (Monty) was severely and permanently injured on an oil well pumping unit. He and his 11...
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Opinion Plaintiff appeals from a judgment dismissing the action because of his failure to prosecute it to trial within two years (Code Civ. Proc., § 583, subd. (a)). 1 The complaint in this action was filed and summons issued on May 28, 1974. Named as defendant was Kelvin K. Larson (defendant), a grower of table grapes in Coachella. The plaintiffs were Alfredo Lopez and Jose ...
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Opinion Appellant stands convicted following a plea of guilty to the manufacture of phencyclidine (PCP) in violation of Health and Safety Code section 11379. His plea was entered after the superior court denied his motion to suppress evidence seized by police officers without a search warrant. The pertinent facts which led to the seizure of the evidence are as follows: In February 1977, appel...
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91 Cal.App.3d 417 (1979) 154 Cal. Rptr. 146 JOSEPH L. ENFIELD et al., Plaintiffs and Appellants, v. ROBERT W. HUNT et al., Defendants and Respondents. Docket No. 53966. Court of Appeals of California, Second District, Division Five. April 2, 1979. *419 COUNSEL Kelly & Graham, Terence J. Mix and Robert D. Bohl for Plaintiffs and Appellants. Bonne, Jones, Bridges, Mueller & O'Keefe, Buck, Molony, N...
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*428 Opinion Plaintiff and appellant Sally Hill appeals from an order dismissing her complaint for personal injuries as to defendant and respondent State of California following the sustaining of respondent’s demurrer to the third amended complaint without leave to amend. The facts as alleged in appellant’s third amended complaint are that in June 1975 codefendants Lilly and Mobile Aircraft...
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*435 Opinion Jerome A. Lackner, M.D., as Director of the State Department of Health (Director) filed a complaint against H. A. Lawren Perkins and The Bradley Sanitarium (Perkins) to collect a civil penalty for alleged violation of the Long-Term Care, Health, Safety and Security Act of 1973 (the Act) (Health & Saf. Code, § 1417 et seq.). 1 Perkins moved for summary judg...
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Opinion This case involves the taxability of the possessory interest of a private contractor-builder under a lease of property owned by the City of Desert Hot Springs, leased to the builder for the purpose of construction by him of certain buildings, and leased back to the city under a lease with option to purchase the buildings at the expiration of the five-year and ten-year anniversary ...
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Opinion Petitioner was committed to the State Department of Health under Welfare and Institutions Code section 6500.1, 1 as a mentally retarded person, on January 25, 1978. Petitioner filed a petition for a writ of habeas corpus in the San Bernardino County Superior Court. It was denied. She then filed a petition for habeas corpus in this court, which was denied on September 5,...
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Opinion A magistrate issued a warrant authorizing search of the premises of the real party in interest of these proceedings, Ward Allen Bingham, for specified, insured, personal property claimed by him to have been destroyed by fire. Upon execution of the search warrant the property was found in the possession of Bingham, undamaged. He was charged with several insurance-related felonies i...
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Opinion Plaintiffs Weslie C. Brown and Wallis Brown, Jr., appeal from a judgment of the trial court confirming a valuation appraisal of plaintiffs’ minority shares in a corporation, which shares were to be purchased by the majority shareholder for the purpose of preventing the involuntary dissolution of the corporation. Statement of the Case Plaintiffs initiated this action in O...
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Opinion Petitioners Kaiser Foundation Hospitals and Southern California Permanente Medical Group (Kaiser) contend that respondent Workers’ Compensation Appeals Board (WCAB) erred in charging part of a fee awarded an injured worker’s attorney to Kaiser’s recovery on its lien claim for medical services (see Lab. Code, §§ 4600, 4903, subd. (b)).1 *495I The injured worker herein, respondent Thomas J....
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Opinion Petitioners Kaiser Foundation Hospitals and Southern California Permanente Medical Group (Kaiser) contend: (1) the respondent Workers’ Compensation Appeals Board (WCAB) does not have the power under the doctrine of equitable apportionment to charge part of the injured worker’s attorneys fee against Kaiser’s lien filed pursuant to Labor Code sections 4600 and 4903 for medical services prov...
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Opinion Petitioners Kaiser Foundation Hospitals and Southern California Permanente Medical Group (Kaiser) contend that the Workers’ Compensation Appeals Board (WCAB) erred in equitably charging part of the injured worker’s attorneys fee against its lien filed in the workers’ compensation proceedings pursuant to Labor Code sections 4600 and 49031 for reimbursement of medical services rendered ór pa...
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Opinion Petitioners Kaiser Foundation Hospitals and Southern California Permanente Medical Group (Kaiser) contend that the Workers’ Compensation Appeals Board (WCAB) erred in equitably charging against its lien for medical services provided to an injured worker (see Lab. Code, §§ 4600 and 4903) a specific portion of the injured worker’s attorneys fee where the amount of Kaiser’s lien had not been ...
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Opinion Plaintiff Selby Constructors, a California corporation, filed a complaint alleging breach of a residential construction contract and seeking enforcement of a mechanic’s lien on the subject property, located at 3445 Ocean Drive, Oxnard, California. Named as defendants were the home owners, John L. and Pat McCarthy, husband and wife, and Security Pacific National Bank. 1 ...
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Opinion We are called upon to decide whether in a bifurcated marital dissolution proceeding the community property should *537be valued at the time the marital relationship is dissolved or at the time the community property is divided by the court. We treat the question as one of first impression. Cynthia Walters (wife) appeals from the judgment dividing the community property in which the court e...
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Opinion Petitioner, defendant in an action for declaratory relief, seeks a writ of mandate to compel respondent court to set aside its order denying petitioner’s motion for summary judgment and to enter judgment in its favor. Petitioner contends there are no triable issues of fact and it is entitled to judgment as a matter of law. We agree. The record shows that on July 8, 1977, rea...
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91 Cal.App.3d 545 (1979) 154 Cal. Rptr. 555 THE PEOPLE, Plaintiff and Respondent, v. GEORGE C. GRAY, Defendant and Appellant. Docket No. 18154. Court of Appeals of California, First District, Division Two. April 4, 1979. *548 COUNSEL Donald M. Solomon, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attor...
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Opinion Darren Lamont Durham and his mother Dorothy Durham sued the Southern Pacific Transportation Company and the City of Los Angeles et al. for injuries suffered when Darren was trying to hop a railroad train near his home. 1 A judgment of nonsuit was entered for the City of Los Angeles, and a judgment after jury trial was entered for defendant Southern Pacific Transportatio...
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Opinion After a court trial, defendant was found guilty of one count of manufacturing phencyclidine (PCP) (Health & Saf. Code, § 11379) and one count of possession of piperidine and cyclohexanone with the intent to manufacture phencyclidine (Health & Saf. Code, § 11383, subd. (b).) He was sentenced to state prison for a term of four years. Defendant’s main argument on appeal is that ...
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I dissent. Plaintiff John Dawn and Patricia Khan were employed by the State of California in the classified service; they worked in the San Jose office of the California Youth Authority (department) as parole agents grade I. *597Plaintiff and Khan were on a civil service list established by competitive examination for promotion to the next highest class, parole agent grade II. A single vacancy occ...
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Opinion After a San Diego Juvenile Court referee found Steven S. in violation of Penal Code section 245, subdivision (a), assault with a deadly weapon, and committed him to the California Youth Authority, Steven’s counsel sought to present new evidence on identification. The judge treated the request as a motion for new trial and refused to hear it on grounds the juvenile court lacks authority to ...
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91 Cal.App.3d 609 (1979) 154 Cal. Rptr. 314 THE PEOPLE, Plaintiff and Respondent, v. WENDY MASAKO YOSHIMURA, Defendant and Appellant. Docket No. 16844. Court of Appeals of California, First District, Division Four. April 5, 1979. *613 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Clifton R. Jeffers, Chief Assistant State Public Defender, B.E. Bergesen III, ...
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Opinion Introduction On August 25, 1976, plaintiff/respondent Crest Brokerage Company, Inc. (hereinafter Crest) filed a complaint for recovery of ad valorem property taxes for 1975 which it paid under protest naming as defendants City and County of Los Angeles (hereinafter referred to collectively as Los Angeles). On March 16, 1977, the court below granted plaintiff Crest’s motion for summary judg...
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Opinion Statement of the Case The public defender for San Luis Obispo County filed a petition for writ of habeas corpus in San Luis Obispo County Superior Court on June 13, 1978, on behalf of respondents Thomas Brindle, Dennis Hall, Todd Young, Richard Mroczko and Joseph Seide, inmates of the California Mens Colony, seeking relief from alleged interference by prison officials with their acces...
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*686 Opinion Plaintiff New York Higher Education Assistance Corporation appeals from an order of the superior court vacating a judgment to enforce a “sister state judgment,” which had previously been entered by the court in accordance with Code of Civil Procedure sections 1710.10-1710.65. The record before the superior court at the time of entry of the criticized order disclosed the followi...
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Opinion When Steven H. was 16 years old, he set a fire in a wastebasket in a classroom at the appellant Congregation of Rodef Sholom (Congregation) synagogue in Marin County, causing property damage in the amount of $48,770.01. The Congregation filed suit for damages and judgment for the full amount was entered. *693 At the time of the fire Steven, residing in his parents’ household, was an...
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Opinion Pending here are appeals by opposing parties arising out of the same superior court action. Each side has moved to dismiss the other’s appeal. These motions require us to decide (a) the timeliness of defendant’s appeal from a postjudgment order denying attorney fees under Civil Code section 1717 and (b) the applicability of rule 3(c), California Rules of Court, to plaintiff’s subs...
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*709Opinion Following a preliminary hearing, defendant was charged in a four-count information with violations of Penal Code section 12021 (possession of a firearm by,an ex-convict), section 236 (false imprisonment), section 242 (misdemeanor batteiy), and section 417 (brandishing a firearm). After a motion under Penal Code section 995, all charges except the section 12021 count were dismissed. Def...
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Opinion Appellant Geraldine Powers Kessler (hereinafter referred to as contestant) has appealed from the order sustaining demurrers and dismissing her first amended contest to the probate of the last will and testament of Thomas E. Powers, deceased. Decedent, Thomas E. Powers, died on June 1, 1977. On June 17, 1977, Olga E. Powers, widow of decedent, petitioned for letters of administration-w...
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Opinion The City of Lafayette (City) brought a declaratory relief action against the County of Contra Costa (County) seeking a judicial declaration “that it has the right to close Happy Valley Road within the City limits to through traffic and is entitled to do so by any means authorized or permitted by law including the installation of a traffic diverter.” It appeals from an adverse judg...
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Opinion I Petitioner City of Los Angeles (City) asks a review of a decision of the Workers’ Compensation Appeals Board .finding respondent Ray Noetzel’s injury to his back on September 27, 1976, was a compensable industrial injury. Noetzel is employed by the City as a police officer. The injury which is the subject of this review occurred when Noetzel was at home and off duty, e...
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*769Opinion Defendant contends that the trial court erroneously ran a term of imprisonment for burglary second degree (Pen. Code, § 459) consecutively to a term of imprisonment for escape with force and violence (Pen. Code, § 4532, subd. (b)). He argues that the escape term should instead be made to run consecutively to the burglary term. We reject defendant’s contention and affirm the judgment. I...
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Opinion Rosalyn S. Fenn appeals the order granting summary judgment on the basis of res judicata to William S. Harris. The parties were married in 1947, a marriage which was dissolved in 1969. The community property was divided pursuant to a property settlement agreement incorporated into the dissolution judgment. The parties were *774 aware of but did not include as property: (1) Harris’ ves...
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*780 Opinion Defendants-appellants Roy M. Bell, as Director of Finance of the State of California and Kenneth Cory, as Controller of the State of California (defendants) appeal from that portion of a judgment which awards petitioner-appellant Russell Bruno (Bruno) $30,000 in attorney fees in conjunction with his successful prosecution of an action resulting in a declaration that ...
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Opinion Plaintiffs commenced this action for damages allegedly sustained by them as a result of defendant insurance broker’s having obtained for them a policy of automobile insurance issued by an insurance carrier which subsequently became insolvent after the occurrence of an accident covered by the policy. Plaintiffs appeal from summary judgment entered in defendant’s favor. The complaint co...
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Opinion This is an appeal taken from an order determining interests in an estate and directing the distribution of the property of the estate taken pursuant to Probate Code section 1240. At issue is the correctness of the trial court’s construing together two testamentary instruments admitted to probate as the last will of Henrietta M. Johnson and the court’s consequent determination that...
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Opinion It is hardly “man-bites-dog” news to the trial judges of this state to observe that the new determinate sentence law is hardly a model of legislative clarity. 1 In this case we are called upon to ascertain the legislative intent in two of its more murky provisions. The issue is whether a prisoner is entitled to good time credit under section 2931 (all citations are to the Penal Code) ...
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Opinion This appeal is from a judgment of dismissal entered after defendant’s demurrer to plaintiff’s complaint was sustained without leave to amend. It raises the issue of the adequacy of a corporate bond issued by an authorized surety insurer to satisfy the provisions of Code of Civil Procedure section 682a requiring that a writ of execution levied on a joint bank account be accompanied by a “bo...
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Opinion Plaintiff appeals from an order under section 581a of the Code of Civil Procedure dismissing her complaint as against respondent defendants for failure to serve and return summons within three years. I The complaint was filed and summons issued on October 8, 1974. In November 1974 after a phone conversation with a representative of the defendants’ insurance carrier, plaintiff’s counsel by...
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*849 Opinion Defendant appeals from a judgment entered after a jury found him guilty of two robberies (Pen. Code, § 211), in both of which he used a firearm (Pen. Code, § 12022.5). He claims error in pretrial identification procedures, insufficient evidence to support the gun-use finding in one of the robberies, and ineffective assistance of counsel. About noon on Monday, August 1, 1977, th...
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Opinion Petitioners, the parents of elementary school children in various elementary school districts within the territory embraced within the boundaries of Sequoia Union High School District and in Palo Alto Unified School District, seek a writ of mandate to compel the respondent elementary districts and others to submit to the court a reasonably feasible plan to eliminate or alleviate a...
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Opinion Plaintiff appeals from a judgment adverse to it after an order sustaining a demurrer to its second amended complaint. We reverse the judgment. I Plaintiff’s first cause of action alleges that it opened a checking account with defendant bank and deposited therein substantial sums of money. The signature card for that account required two signatures and gave an address in Pacoima, Cal...
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Opinion In its August 19, 1975, regular meeting, the Governing Board of New Haven Unified School District (hereafter District) adopted a 1975-1976 school calendar which included two “board holidays”: January 15, 1976, Martin Luther King Day, and May 5, 1976, Cinco de Mayo. The holidays were adopted as holidays solely for teachers and students. Classified employees were required to work on the two...
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Opinion John Dewitt Stevenson seeks a writ (Pen. Code, § 999a) to restrain respondent superior court from taking any further action in a felony case pending against him other than to dismiss the information. We issue the writ because there was no competent evidence at the preliminary hearing supporting the order of the magistrate holding petitioner for trial. On April 13, 1978, a complaint wa...
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91 Cal.App.3d 938 (1979) 154 Cal. Rptr. 773 THE PEOPLE, Plaintiff and Respondent, v. VINCENT MONTANGE HAWK, Defendant and Appellant. Docket No. 9799. Court of Appeals of California, Third District. March 19, 1979. *939 COUNSEL Joseph Lawrence Staats, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorne...
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Opinion We are asked to decide in this appeal whether the trial court properly interpreted and applied Code of Civil Procedure section 474 1 in granting Everett K. Purdy’s motion for summary *945 judgment based upon the one-year statute of limitations (§ 340.5). For the reasons which we will discuss, we conclude the trial court used an erroneous standard in holding...
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Opinion This is an appeal by property owners from several postcondemnation judgment orders which collectively deny them ordinary court costs, interest for prejudgment possession by the con *952 demner, and litigation expenses under Code of Civil Procedure section 1250.41Q. 1 In December 1976, Coachella Valley County Water District (plaintiff) filed a complaint in...
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Opinion Statement of the Case A petition filed pursuant to Welfare and Institutions Code section 602 1 alleged two counts of burglary, a violation of Penal Code section 459, occurring on April 28, 1978, at the Sea Gypsy Motel in Pismo Beach. After a contested jurisdictional hearing on May 17, 1978, both counts of the petition were found true beyond a reasonable doubt and t...
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*989 Opinion We here consider whether a defendant convicted and sentenced to prison is eligible in a later case for civil commitment as a mentally disordered sex offender (hereinafter MDSO) while the sentence on the first conviction is still being served. We conclude that such a defendant, as a matter of law, is ineligible for commitment as an MDSO. Appellant (hereinafter He...
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I dissent. The majority correctly conclude that the doctrine of “transferred self-defense” is the law in California. Their further conclusion that the court had no sua sponte duty to instruct is unconvincing. It is understandable that the trial court did not properly instruct; after all, it is by this opinion that we enunciate applicable law. Nonetheless, the trial court did not properly instruct,...
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Opinion Plaintiff James J. Viso appeals from a judgment entered in favor of defendants State of California (State) and Tahoe Regional Planning Agency (TRPA) after the trial court sustained demurrers to his third amended complaint in inverse condemnation and deprivation of property without due process of law. We reverse the judgment only as to *19 plaintiff’s cause of action f...
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Opinion Sara Ann Holland appeals the judgment after her petition for peremptory writ of mandate to order the Department of Motor Vehicles (DMV) to set aside the suspension of her driver’s license was denied. Enforcement of the order of suspension was stayed by this court pending final determination of the appeal. *27Holland was arrested and charged with driving under the influence of intoxicating ...
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Opinion Real party in interest filed an action in small claims court against Donald Miller, petitioner, and received judgment in the amount of $554 plus $12.50 in costs. Miller had defaulted by not appearing. Miller moved to set the default aside. His motion was denied. He then filed a notice of appeal. *31 At the hearing on the appeal the trial judge stated he found Miller did not have a...
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92 Cal. App. 3d 32 (1979) 154 Cal. Rptr. 488 THE PEOPLE, Plaintiff and Respondent, v. STEPHEN JEFFREY MUCHMORE, Defendant and Appellant. Docket No. 8940. Court of Appeals of California, Fourth District, Division One. April 17, 1979. *33 COUNSEL Appellate Defenders, Inc., under appointment by the Court of Appeal, Richard Schwering and Stephen J. Perrello, Jr., for Defendant and Appellant. Evelle J...
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Opinion Real Estate Investment Trust of America, Inc. (REITA) and R. H. Macy & Co., Inc. (Macy) appeal from a judgment in favor of Joseph Blumenfeld and the Sacramento Country Club Shopping Center, a partnership (collectively Blumenfeld). *41 Blumenfeld filed a complaint against Macy for $5 million general damages, alleging that Macy had breached an agreement to sublease spa...
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92 Cal. App. 3d 47 (1979) 154 Cal. Rptr. 647 OLE A. BRIX et al., Plaintiffs and Appellants, v. CITY OF SAN RAFAEL, Defendant and Respondent. Docket No. 44037. Court of Appeals of California, First District, Division Four. April 18, 1979. *49 COUNSEL Krause, Timan, Baskin, Shell & Grant, Marshall W. Krause and Ellen O. Pfaff for Plaintiffs and Appellants. Harry A. Connick, City Attorney, for D...
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92 Cal.App.3d 61 (1979) 155 Cal. Rptr. 29 PAUL BINDRIM, Plaintiff and Appellant, v. GWEN DAVIS MITCHELL et al., Defendants and Appellants. Docket No. 52133. Court of Appeals of California, Second District, Division Four. April 18, 1979. *68 COUNSEL Lillick, McHose & Charles, Anthony Liebig, Kathleen Hallberg, Satterlee & Stephens, Robert M. Callagy and Katherine J. Trager for Defendants a...
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Opinion Petitioner seeks a writ of mandate directing respondent court to vacate its order denying his motion to suppress evidence in a criminal action pending against him and to enter a new order granting said motion. Facts Petitioner stands accused by information of receiving stolen property in violation of Penal Code section 496. Petitioner moved respondent court to suppress as evidence i...
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Opinion Defendants, Foremost-McKesson, Inc. and Weyerhaeuser Company, appeal from an order granting a preliminary injunction in favor of plaintiffs, North Carolina Dairy Foundation, Inc; (Foundation), G. P. Gundlach & Company, and Knudsen Corporation, enjoining defendants from infringing upon plaintiffs’ trademark “Sweet Acidophilus” (hereafter “SA”) or engaging in any domestic marketing *103acti...
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92 Cal.App.3d 113 (1979) 154 Cal. Rptr. 672 THE PEOPLE, Plaintiff and Respondent, v. ROBERT CULTON, Defendant and Appellant. Docket No. 18044. Court of Appeals of California, First District, Division Four. April 19, 1979. *115 COUNSEL Allen R. Crown, under appointment by the Court of Appeal, for Defendant and Appellant. George Deukmejian, Attorney General, Jack R. Winkler, Chief Assistant Attorne...
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Opinion Argus Properties, Inc., (Argus) appeals the judgment after a court trial in which Virgil A. Burch was awarded $2,500 damages plus costs and $1,000 attorney fees. Argus, a duly licensed real estate broker, signed a written contract on August 10, 1973, with Burch in which Argus agreed to get for Burch a $2,545,000 loan. The contract provided for a $10,000 deposit; $5,000 for costs was n...
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92 Cal.App.3d 133 (1979) 154 Cal. Rptr. 660 COUNTY OF FRESNO et al., Petitioners, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; JAMES EDDIE WILLIAMS, Real Party in Interest. Docket No. 4553. Court of Appeals of California, Fifth District. April 19, 1979. *134 COUNSEL Evelle J. Younger and George Deukmejian, Attorneys General, Jack R. Winkler, Chief Assistant Attorney General, Arnold O. Over...
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Opinion This opinion consolidates for decision the appeals in Simac Design, Inc. v. Alciati, 1 Civil 43005, and Trumpp v. City Council of Morgan Hill, 1 Civil 43027. Part One—Simac v. A Iciati Citizens for Orderly Residential Development (CORD), real party in interest, appeals from a judgment granting a writ of mandate compelling the City of Morgan Hill to issue 11 building perm...
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92 Cal. App. 3d 160 (1979) 154 Cal. Rptr. 687 STANLEY JAFFEE, Plaintiff and Appellant, v. PSYCHOLOGY EXAMINING COMMITTEE OF THE BOARD OF MEDICAL QUALITY ASSURANCE, Defendant and Respondent. Docket No. 54113. Court of Appeals of California, Second District, Division One. April 20, 1979. *162 COUNSEL Scott J. Raymond, Roger Jon Diamond and Hecht, Diamond & Greenfield for Plaintiff and Appellant...
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Opinion Defendant, Universal Underwriters Insurance Company, appeals from an adverse declaratory judgment. Although the facts are not substantially in dispute, defendant contends that the trial court erred both in its interpretation of an automobile insurance policy issued by plaintiff, Highlands Insurance Company, and in its finding of sufficient evidence to sustain a judgment in favor of plaint...
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92 Cal. App. 3d 178 (1979) 154 Cal. Rptr. 804 JERRY F. ENGLERT, Plaintiff and Appellant, v. IVAC CORPORATION, Defendant and Appellant. Docket No. 16586. Court of Appeals of California, Fourth District, Division One. April 20, 1979. *182 COUNSEL Luce, Forward, Hamilton & Scripps, Robert G. Steiner, Macdonald, Halsted & Laybourne, James J. Slaby, Jr., H. Stephen Cranston and Judith R. Gande...
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92 Cal. App. 3d 192 (1979) 154 Cal. Rptr. 700 JESSIE BROWN, Plaintiff and Appellant, v. SOLANO COUNTY BUSINESS DEVELOPMENT, INC., et al., Defendants and Respondents. Docket No. 41960. Court of Appeals of California, First District, Division Two. April 23, 1979. *194 COUNSEL Richard S. Gerdes for Plaintiff and Appellant. Petty, Andrews, Tufts & Jackson, Thornton E. Robison, David T. Alexander ...
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Opinion J(1) We hold that the warrantless search of a container, removed from a person incident to arrest and reduced to the *201 exclusive control of the police, is unlawful because unjustified by any exigent circumstances. The arrest occurred on March 20, 1977. Officers Jack Dahl and Ronald Packard were on patrol in separate cars. Both were directed by radio to Union City’s Casa Verde Par...
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92 Cal.App.3d 222 (1979) 154 Cal. Rptr. 775 GEORGE R. DINKINS, Plaintiff and Respondent, v. AMERICAN NATIONAL INSURANCE COMPANY, Defendant and Appellant. Docket No. 16665. Court of Appeals of California, Third District. March 26, 1979. *224 COUNSEL Diepenbrock, Wulff, Plant & Hannegan, Lascher & Wilner and Edward L. Lascher for Defendant and Appellant. Coben, Cooper & Zilaff and Melvy...
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92 Cal. App. 3d 236 (1979) 154 Cal. Rptr. 726 MICHAEL J. CONRAD et al., Plaintiffs and Respondents, v. JERRY LEE DUNN et al., Defendants and Appellants. Docket No. 16905. Court of Appeals of California, Fourth District, Division One. April 23, 1979. *237 COUNSEL Percy L. Kleinops, Haugen, Yount, Peck, Kleinops & Degooyer and Kleinops & Cosgriff. John D. Butler for Plaintiffs and Responden...
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92 Cal. App. 3d 239 (1979) 154 Cal. Rptr. 707 NONA NUELLE, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and EMPLOYMENT DEVELOPMENT DEPARTMENT, Respondents. Docket No. 44130. Court of Appeals of California, First District, Division Two. April 24, 1979. *242 COUNSEL Morgan, Beauzay, Hammer, Ezgar, Bledsoe & Rucka, Alfred Lombardo and M. Michael Rucka for Petitioner. Charles L. Swezey, Phi...
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Opinion On September 1, 1977, a narcotics undercover agent, appearing before the Alameda County Grand Jury, testified that he had purchased heroin from respondent at her Hayward residence on two occasions in June. An indictment was issued on that same day; so was a bench warrant for respondent’s arrest. On September 8 a member of the sheriff’s department went to respondent’s Hayward ...
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92 Cal.App.3d 290 (1979) 154 Cal. Rptr. 717 MYRTLE H. DuBOIS, Plaintiff and Appellant, v. CAROLE L. SPARROW et al., Defendants and Respondents. Docket No. 52402. Court of Appeals of California, Second District, Division Three. April 25, 1979. *292 COUNSEL Paul C. Rasmussen for Plaintiff and Appellant. Pickell & Brown and Michael R. Kaiser for Defendants and Respondents. OPINION POTTER, Acting...
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92 Cal.App.3d 302 (1979) 154 Cal. Rptr. 824 FRANK KRIZ, Plaintiff and Respondent, v. HELEN TAYLOR, Defendant and Appellant. Docket No. 55162. Court of Appeals of California, Second District, Division Three. April 25, 1979. *305 COUNSEL Richard C. Solomon for Defendant and Appellant. John E. McDermott, Robert T. Olmos, Patricia M. Tenoso, Richard A. Rothschild, Richard A. Paez and Pamela White as ...
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Opinion The People’s appeals in these two municipal court matters have been transferred to this court from the Appellate Department of the Superior Court for the County of Los Angeles pursuant to rule 62, California Rules of Court. In each case, the municipal court made an order denying the People’s motion to vacate a prior order sealing the records of a misdemeanor prosecution under the ...
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Opinion In 1958, pursuant to an order of the Board of Harbor Commissioners of the City of Los Angeles (Board) and Construction and Lease Agreement No. 485 between the Board and Union Oil Company of *329 California (Union), the latter constructed and thereafter operated an oil terminal for offloading deep draft oil carrying tankers at Berth 46 in Los Angeles Harbor. On December 17, 1976, Berth...
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92 Cal. App. 3d 332 (1979) 154 Cal. Rptr. 704 GENE LLANERA, Plaintiff and Appellant, v. M & S PIPE SUPPLY COMPANY, Defendant and Respondent. Docket No. 53755. Court of Appeals of California, Second District, Division Five. April 24, 1979. *333 COUNSEL Ghitterman, Schweitzer & Herreras and S. Robert Walder for Plaintiff and Appellant. Archbald & Spray and Douglas B. Large for Defendant and Respond...
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Opinion The juvenile court found appellant to be a person described by Welfare and Institutions Code section 602 in that he committed assault (Pen. Code, § 242) by throwing a brick at Maria Lopez. Suitable placement was ordered. At the time of the offense, March 10, 1978, appellant was 11 years old, and the victim, Maria Lopez, was 4 years old. Maria’s mother was in her yard hanging ...
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92 Cal. App. 3d 348 (1979) 154 Cal. Rptr. 713 Estate of CLYDE JOHN ASVITT, Deceased. JACQUELINE ASVITT, Petitioner and Appellant, v. FLORISCA M. GANGAMIE, Objector and Respondent. Docket No. 44396. Court of Appeals of California, First District, Division Two. April 25, 1979. *349 COUNSEL Jerome A. Blaha for Petitioner and Appellant. Seyranian & Seibert, David I. Fischer and Hal F. Seibert for...
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*358 Opinion Robert S. appeals from a dispositional order of the juvenile court continuing his status as a ward (Welf. & Inst. Code, §§ 602, 725) 1 and committing him to the California Youth Authority (CYA). On appeal the minor’s principal contention is that the court improperly considered previously sustained section 602 petitions in setting the maximum permissible te...
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Opinion In this proceeding Jose L. Cadiz, a farm worker, and his employer, M. Caratan, Inc. (Petitioners) jointly seek a writ of *369mandate directing the Agricultural Labor Relations Board (ALRB) to set aside its order nullifying and dismissing their petition for decertification of the United Farm Workers of America, AFL-CIO (UFW), an agricultural union, and for an order directing that impounded...
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Opinion Defendant Jeffery Ray Ross and codefendant Lanny Atkins were charged by information with crimes of murder, robbery, burglary and arson; the murder count included a penalty enhancement allegation that it had been committed by means of torture with intent to kill. An arming clause as to defendant Ross was stricken and the cases were severed for trial. A jury returned a verdict of guilty a...
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Opinion Appellants are charged in separate complaints with felony violations of section 11483 of the Welfare and Institutions Code *411 (welfare fraud). 1 Before commencement of the preliminary hearing, each appellant filed a “McGee motion” (People v. McGee (1977) 19 Cal.3d 948 [140 Cal.Rptr. 657, 568 P.2d 382]) to dismiss the complaint on gro...
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Opinion Gary Beriyessa and Rene Deane, the contingent beneficiary and trustee, respectively, of a testamentary trust, appeal from a decree denying their petition for heirship and determining that the decedent’s only heirs at law, his parents, J. Frank Murphy and his wife Marjorie, were the only persons entitled to the estate. The principal question presented is whether any of the documents exec...
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Opinion The People appeal from an order of the appellate department of superior court granting the petition of Maiy Loretta Schiering for habeas corpus. Defendant Schiering was originally convicted in municipal court, pursuant to jury verdict, on charges of petty theft (Pen. Code, § 484) and sentenced to 30 days in the county jail. Execution of sentence was stayed and she was placed upon ...
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Opinion Plaintiffs, Jimmy C. and Brenda L. Young, appeal from a judgment that they take nothing by their first amended complaint for negligence from defendant, City of Inglewood. 1 The appeal lies. (Code Civ. Proc., §§ 581d, 904.1, subd. (a).) The sole issue on appeal is whether plaintiffs have stated a cause of action for negligence against the city. We believe that they ...
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Opinion The state Department of Health and its director appeal from a judgment in administrative mandamus granting a peremp *446 toiy writ commanding the department to issue to the Marin Hospital District a certificate of exemption with respect to the district’s acquisition of a computerized tomographic full-body scanner. The appeal lies. (Code Civ. Proc., §§ 904.1, subd. (a)...
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Opinion Defendants were jointly charged with possession of heroin, in violation of section 11350 of the Health and Safety Code. After a trial by juiy, they were found guilty as charged and sentenced to state prison. They have appealed; we affirm. On this appeal, defendants contend: (1) That the trial court erred in denying their motion for the identity of an informant; and (2) that the evidence do...
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Opinion Defendant Peter Garcia Flores appeals from a judgment of conviction for sale of heroin (Health & Saf. Code, § 11352), and from the sentence imposed for such conviction which was enhanced because of a prior conviction for possession of marijuana on April 27, 1966. 1 On November 22, 1977, Winston Pingrey, an undercover officer for the Riverside County Sheriff’s office, ...
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92 Cal. App. 3d 475 (1979) 154 Cal. Rptr. 869 THE PEOPLE, Plaintiff and Respondent, v. LLOYD C. GARFIELD, Defendant and Appellant. Docket No. 18266. Court of Appeals of California, First District, Division One. April 30, 1979. *477 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Clifton R. Jeffers, Chief Assistant State Public Defender, Isadora W. Lomhoff, Ga...
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Opinion The issue to be determined by this appeal is whether a suit for rescission of an executed land sale contract against personal representatives of a deceased seller is a claim “arising upon contract” within the *499 purview of Probate Code section 707, subdivision (a). 1 With exceptions not here relevant, that section specifies that “all claims arising upon c...
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Opinion Clark Equipment Company (Equipment) and Clark Leasing Corporation (Leasing) appeal from adverse judgments on separate jury verdicts in favor of William J. Wheat and Ernest R. Wheat (Wheat) for $4,500 and $5,000, respectively, for compensatory damages against Equipment, and for $500 each, in compensatory and $5,000 each, in punitive damages against Leasing on Wheat’s cross-complain...
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Opinion Plaintiff Robert Kessler, the holder of $10,000 in convertible debentures issued by defendant Sprague Electric Company, on behalf of himself and other debenture holders similarly situated, filed an action against Sprague, a Massachusetts corporation, General Cable Corporation, a New Jersey corporation, and numerous Doe defendants. This complaint sought damages for violation of Cal...
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Opinion Acting in propria persona, appellants have filed the instant appeal from two orders denying their motions made pursuant to Code of Civil Procedure section 473 1 for relief from the entry of a summary judgment on behalf of respondents. Since the procedural facts are not in dispute, we adopt them substantially as set forth in respondent Equifax’s brief. On March 14, 1975, appellants f...
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Opinion By information, appellant Jackson was charged with six counts of violation of Business and Professions Code section 4390, passing of a forged prescription; three counts of violation of Penal Code section 496, receiving stolen property; one count of violation of Health and Safety Code section 11368, possession of a narcotic by use of a forged prescription; and one count of violation of Pena...
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Opinion In a proceeding under Welfare and Institutions Code section 602, the juvenile court found that appellant committed assault in violation of Penal Code section 240. Appellant was declared a ward and placed home on probation. The victim, Roman Harris, testified that on the afternoon of March 20, 1978, as he was leaving a liquor store at 65th and Western, four people including ap...
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92 Cal. App. 3d 570 (1979) 155 Cal. Rptr. 80 THE PEOPLE, Plaintiff and Respondent, v. CLARENCE FIRSTENBERG, Defendant and Appellant. Docket No. 33892. Court of Appeals of California, Second District, Division Five. May 1, 1979. *574 COUNSEL Donald R. Wager and Paul Arthur Turner for Defendant and Appellant. Burt Pines, City Attorney, and Jack L. Brown, Deputy City Attorney, for Plaintiff and Resp...
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*591 Opinion Statement of the Case This appeal is from a judgment granting a writ of administrative mandate pursuant to Code of Civil Procedure section 1094.5. By the writ the trial court ordered appellant, the California Unemployment Insurance Board (hereinafter Board), to set aside its decision that certain employees who had participated in a strike against respondent Windigo Mills (herei...
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Opinion Pamela A. La Motte appeals from an order by which she was admitted to probation after a jury found her guilty of welfare fraud (receiving “aid for a child not entitled thereto” [Welf. & Inst. Code, § 11483]). The verdict of guilty was based on evidence that appellant had received from the Santa Cruz County Social Welfare Department benefits under the program for aid to famili...
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92 Cal. App. 3d 637 (1979) 155 Cal. Rptr. 238 THE PEOPLE, Plaintiff and Respondent, v. RUSSELL STEVEN CORNEJO et al., Defendants and Appellants. Docket No. 33229. Court of Appeals of California, Second District, Division Four. May 2, 1979. *643 COUNSEL Thomas Kallay and Patrick M. Thompson, under appointments by the Court of Appeal, for Defendants and Appellants. Evelle J. Younger and George Deuk...
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Opinion This is an appeal from a judgment denying a petition for a writ of mandate which sought to compel the Peralta Community College District Board of Trustees (Trustees) to keep open the Grove Street college campus, and to adopt a plan for repayment of at least $10 million in bond initiative revenues for construction of a degree-granting college on the Grove Street college site. ...
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Opinion Gloradon M. appeals from a judgment declaring her minor child, Lynna B., free from the custody and control of the natural parents under Civil Code section 232, subdivision (a)(7). On April 5, 1977, Donald and Rosemary H., respondents, on behalf of Lynna, a minor born on December 6, 1970, filed the petition to free Lynna. Respondents had been appointed as guardians of the person of the min...
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Opinion Regrettably, we find ourselves compelled once again to reverse a judgment of conviction because of a trial court’s erroneous extemporaneous comment and informal juiy instructions, concerning the accused’s critical defense. Defendant Lee was charged with murder. He pleaded “not guilty” and “not guilty by reason of insanity.” A theory of the prosecution was that the homicide was premedi...
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Opinion Testamentary cotrustees, Fred M. Yasukochi and John P. Armstrong, appeal from provisions of a judgment surcharging *720them $133,876.50, which amount represents the adjusted difference between the total of the annual bonuses paid or credited to Yasukochi by Ramirez and Feraud Chili Company (hereafter Company) for six years (1971-1972 to 1976-1977, inclusive), and 10 percent of the Company’...
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92 Cal. App. 3d 725 (1979) 155 Cal. Rptr. 122 CONWAY J. FUHRMAN, Plaintiff and Appellant, v. LEE RISNER et al., Defendants and Respondents. Docket No. 50641. Court of Appeals of California, Second District, Division Four. May 3, 1979. *727 COUNSEL Jacque Boyle for Plaintiff and Appellant. Brill, Hunt, Debuys & Burby, Michael T. Fox, Demetriou & Del Guercio, Richard A. Del Guercio, Richard...
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92 Cal.App.3d 735 (1979) 155 Cal. Rptr. 132 CLIFFORD S. STRIKE et al., Plaintiffs and Appellants, v. TRANS-WEST DISCOUNT CORPORATION et al., Defendants and Respondents. Docket No. 16904. Court of Appeals of California, Fourth District, Division One. May 3, 1979. *737 COUNSEL Luce, Forward, Hamilton & Scripps, Edgar A. Luce, Jr., Craig S. Andrews and Louis E. Goebel for Plaintiffs and Appellants. ...
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Opinion This is the second appeal taken by the captioned state officers in this action. The first one was from a judgment in favor of respondent which we affirmed on its merits. (Mandel v. Hodges (1976) 54 Cal.App.3d 596 [127 Cal.Rptr. 244, 90 A.L.R.3d *751 728].) 1 Among other things, that judgment (1) enjoined the Governor from continuing th...
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Opinion This is an appeal from an order entered in a proceeding commenced in superior court pursuant to section 946.6 of the Government Code denying the petition of appellants for an order relieving them from the obligation of filing a claim with a public entity. Facts On May 26, 1976, petitioners and appellants, Oscar and Victor Toscano, were arrested by officers of the respond...
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Opinion This is an appeal by defendant Dennis Morrisson from a judgment convicting him of violating section 10851 of the Vehicle Code (auto theft), in that defendant unlawfully drove and took a 1973 Volkswagen belonging to a Mr. Steven Welch. Appellant contends the trial court erred in failing to instruct sua sponte on the proper use of *789 uncharged criminal acts and on circumstantial evi...
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Opinion A petition was filed by the juvenile probation department in the juvenile court, alleging that Phillip B., a minor, came within the provision of Welfare and Institutions Code section 300, subdivision (b),1 because he was not provided with the “necessities of life.” The petition requested that Phillip be declared a dependent child of the court' for the special purpose of ensuring that he re...
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92 Cal. App. 3d 805 (1979) 155 Cal. Rptr. 280 GERALD G. SWANSON, Plaintiff and Respondent, v. ROBERT S. SKIFF et al., Defendants and Appellants. Docket No. 17747. Court of Appeals of California, Third District. May 8, 1979. *806 COUNSEL Darrel D. Tipton for Defendants and Appellants. Dennis N. Westerberg and Mills & Westerberg for Plaintiff and Respondent. OPINION REYNOSO, J. The trial court ...
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92 Cal. App. 3d 811 (1979) 154 Cal. Rptr. 926 THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LAWRENCE WRIGHT, Defendant and Appellant. Docket No. 9637. Court of Appeals of California, Third District. May 8, 1979. *812 COUNSEL Quin A. Denvir, State Public Defender, under appointment by the Court of Appeal, Gary S. Goodpaster, Chief Assistant State Public Defender, and Ted W. Isles, Deputy State ...
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92 Cal.App.3d 826 (1979) 156 Cal. Rptr. 63 THE PEOPLE, Plaintiff and Appellant, v. RICHARD WARREN La FAVE, Defendant and Respondent. Docket No. 18312. Court of Appeals of California, First District, Division One. March 12, 1979. *827 COUNSEL Gene L. Tunney, District Attorney, and Gregory J. Jacobs, Deputy District Attorney, for Plaintiff and Appellant. Carrow, Forest & Jordan and Robert D. Ca...
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Opinion This is an appeal from a judgment sentencing defendant Oliver Taylor to state prison after a jury found him guilty of possessing heroin for sale (Health & Saf. Code, § 11351). *833 Defendant’s contention that the trial court erred in basing its sentence in part on facts relating to him, as opposed to the crime, is rejected in light of People v. Cheat...
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92 Cal. App. 3d 834 (1979) 155 Cal. Rptr. 157 In re the Marriage of SUSAN and DAVID NEAL. SUSAN NEAL, Appellant, v. DAVID NEAL, Respondent. Docket No. 44100. Court of Appeals of California, First District, Division Four. May 9, 1979. *837 COUNSEL Savitt & Adams, Beverly B. Savitt and Nancy Sevitch for Appellant. Alan Kornfeld for Respondent. OPINION RATTIGAN, J. The wife appeals from specifie...
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Opinion Highlands Insurance Company of Houston, Texas appeals from a judgment rendered against it as surety on a bond to release attachment. On September 12, 1977, the V.I.P. Agency of Northern California, Inc., (V.I.P.) filed in the superior court (Santa Clara) a complaint against Duffy Electronics, Inc., (Duffy) seeking recovery of $10,200 allegedly due for services rendered in procuring two wor...
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Opinion Ben D. Kellis, assignee of a limited partnership interest in an apartment house project, sued defendant Ellis Ring, a general partner in the limited partnership and an officer or director in companies that allegedly provided management services for the apartment complex. Kellis sought declaratory relief and an injunction; he asked the court to make a “judicial determination and declar...
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Opinion Defendant was charged with: (count I) assault with a deadly weapon on a police officer, in violation of subdivision (b) of section 245 of the Penal Code; (count II) battery on a police officer, in violation of sections 242 and 243 of the Penal Code; and (count III) battery on a police officer in violation of sections 242 and 243 of the Penal *865 Code. After a trial by the court, tria...
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Opinion Appellant Donald S. Engel appeals from an order of dismissal entered following the sustaining of respondents’ demurrers without leave to amend. Appellant, an attorney who formerly practiced in New York, and who has since been admitted to practice in California, seeks damages from the State Bar of California, the Committee of Bar Examiners of the State Bar of California, and two na...
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Opinion Plaintiff, VTN Consolidated, Inc. (hereafter appellant or VTN) appeals from the trial court’s judgment dismissing this declaratory relief action after the demurrer of defendant Northbrook Insurance Company, Inc. (hereafter respondent or Northbrook) wás sustained with leave to amend, which VTN declined to do (Code Civ. Proc., § 581, subd. 3). The allegations of the complaint which must...
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92 Cal. App. 3d 895 (1979) 155 Cal. Rptr. 301 MARY JANE BROWN, Plaintiff and Appellant, v. JOHN DE RUGERIS, Defendant and Respondent. Docket No. 44833. Court of Appeals of California, First District, Division Four. May 10, 1979. *896 COUNSEL Wylie, Blunt & McBride and James L. Dawson for Plaintiff and Appellant. Mercant & O'Brien and Samuel D. O'Brien for Defendant and Respondent. OPINION...
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92 Cal.App.3d 899 (1979) 155 Cal. Rptr. 305 THE PEOPLE, Plaintiff and Respondent, v. MARVIN LESTER JACKSON, Defendant and Appellant. Docket No. 32594. Court of Appeals of California, Second District, Division Five. May 10, 1979. *900 COUNSEL Wilbur F. Littlefield, Public Defender, Dennis A. Fischer, Robert C. Reback and Leighton A. Nugent, Deputy Public Defenders, for Defendant and Appellant. Eve...
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Opinion Plaintiff Victor Bluestein, a retired state civil service employee after over 26 years of service, appeals from a judgment denying his petition for writ of administrative mandate. (Code Civ. Proc., § 1094.5.) He claims that in connection with his retirement benefits he is entitled to service credit for a six-month period from February to July 1950 when he was employed as a professional int...
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Opinion The People appeal after the trial court granted the Penal Code section 1305 motion of defendant National Automobile and Casualty Insurance Company (National) to vacate an order forfeiting a bond issued in a criminal case and to exonerate the bond. The motion to vacate and exonerate was made on the 181st day after the court ordered the bond forfeited. On June 15, 1977, Gladys Irene Bis...
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92 Cal. App. 3d 913 (1979) 155 Cal. Rptr. 319 THE PEOPLE EX REL. JOSEPH FREITAS, JR., as District Attorney, etc., et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents; RICHARD B. SPOHN, as Director, etc., Intervener and Appellant. Docket No. 43082. Court of Appeals of California, First District, Division Two. May 11, 1979. *915 COUNSEL Joseph F...
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*937Opinion Petitioners Commercial Standard Title Company, Inc., and First California Title Company of San Diego (the Title Companies) seek a writ of mandate directing the court below to allow them to file a cross-complaint for partial indemnity against Todd Smith, an attorney at law, in an action wherein the Title Companies, inter alia, are defendants and W. L. Lipscomb Engineering, Inc. (Lipsco...
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Opinion This appeal arises out of consolidated actions foreclosing mechanics liens on two condominium projects. Appellant is a lender who took the property on foreclosure of a trust deed. We have concluded that the trial court’s finding that the lien claimant and the owner were “one entity and indivisible” precludes enforcement of the claim, and therefore reverse the judgment. The appeal ...
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92 Cal. App. 3d 959 (1979) 155 Cal. Rptr. 335 MARJORIE B. COEFIELD, Plaintiff and Respondent, v. WILLIAM J. COEFIELD, Defendant and Respondent; EVA R. COEFIELD, Movant and Appellant. Docket No. 54576. Court of Appeals of California, Second District, Division Four. May 14, 1979. *960 COUNSEL Herb Wiener for Movant and Appellant. Bruce M. Boogaard for Plaintiff and Respondent. No appearance for Def...
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Opinion Defendant William Maez has appealed from a judgment entered against him and in favor of plaintiff George A. Hormel & Company following a court trial. Judgment was entered for plaintiff in the sum of $1,910.85 plus costs against defendant William Maez only. *966 Summary of the Facts On July 22, 1975, appellant was operating a motor vehicle on a public street ...
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Opinion Defendant was charged, jointly with Tremain Rufus Adams, with: (count I) robbery of Jose Marroquin, in violation of section 211 of the Penal Code; (count II), robbery of Dolores Anaya, in violation of section 211 of the Penal Code; (count III), burglary, in violation of section 459 of the Penal Code; (count IV), robbery of Aníbal R. Guerra, in violation of section 211 of the Penal Code;...
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92 Cal. App. 3d 978 (1979) 155 Cal. Rptr. 330 THE PEOPLE, Plaintiff and Respondent, v. HERMAN WADSWORTH, Defendant and Appellant. Docket No. 33569. Court of Appeals of California, Second District, Division Four. May 14, 1979. *979 COUNSEL Tibor I. Toczauer, under appointment by the Court of Appeal, for Defendant and Appellant. George Deukmejian, Attorney General, Jack R. Winkler, Robert H. Philib...
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92 Cal.App.3d 996 (1979) 155 Cal. Rptr. 605 In re the Marriage of BETTY and SALVADOR ANSARA CHALA. BETTY CHALA, Respondent, v. SALVADOR ANSARA CHALA, Appellant. Docket No. 54225. Court of Appeals of California, Second District, Division Five. May 14, 1979. *998 COUNSEL Michael J. Movius for Appellant. Anita H. Dymant for Respondent. OPINION HASTINGS, J. Betty Chala (wife), respondent, and Salvado...
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*1007 Opinion In this action against State Farm Mutual Automobile Insurance Company (State Farm), based upon an alleged breach of its duty of good faith and fair dealing, the trial court granted State Farm’s motion for summary judgment. The insureds, Luis Corral (Luis) and his daughter, Mary Alice Corral (Mary), have appealed. State Farm’s policy of liability insurance issue...
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92 Cal.App.3d 1015 (1979) 155 Cal. Rptr. 616 DIAMOND INTERNATIONAL CORPORATION, Plaintiff and Respondent, v. ROGER BOAS, as Chief Administrative Officer, etc., Defendant and Appellant. Docket No. 42273. Court of Appeals of California, First District, Division One. May 15, 1979. *1018 COUNSEL Thomas M. O'Connor, City Attorney, Thomas A. Toomey, Jr., Chief Deputy City Attorney, and Burk E. Delventh...
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*5 Opinion These appeals involve two distinct problems: (1) A negligent employer’s right to reimbursement of workers’ compensation benefits in an employee’s third party action and (2) an owner’s right to be indemnified by a contractor employed to supervise a building project for liability resulting from an injuiy sustained by an employee of a subcontractor. The background of...
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Opinion This is an appeal from a judgment declaring a minor child free from the custody and control of his natural father pursuant to Civil Code section 232.1 Plaintiffs filed a petition for the adoption of minor D.S.C. and later filed a petition to declare D. S. C. free from the parental custody and control of defendant under section 232, subdivisions (a)(1) and (a)(4).2 A *19hearing on the cust...
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Opinion Defendants George Anthony Hadzima, Jr., Donald James Newell, and William Edward Donohue pleaded guilty to several counts of burglary following the superior court’s denial of their Penal Code section 1538.5 motion to suppress evidence essential to their successful prosecution, and which led to their arrests and guilty pleas. Hadzima appeals from a judgment under which he was sentenced to st...
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Opinion Defendant appeals from a judgment convicting him of two counts of forcible rape in violation of Penal Code sections 261, subdivision 2 and 261, subdivision 3. *47 In an original information, defendant was charged in one count with committing forcible rape in violation of Penal Code sections 261, subdivision 2 and 261, subdivision 3, by acting in concert with codefend...
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Opinion Matthew Stevens et al., the incorporating directors of the Marin City First Missionary Baptist Church (Church), appeal from a judgment of dismissal entered on an order sustaining without leave to amend the demurrer of E. Paul Perkins, the pastor, and several other members (collectively Perkins), to their petition filed pursuant to Corporations Code section 709, to determine the re...
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Opinion Defendant, Robert Reginald Estrada, appeals from a judgment of conviction entered on a juiy verdict finding him guilty of first degree murder (Pen. Code, § 187) while armed with a deadly weapon (former Pen. Code, §§ 3024, subd. (f); 12022), namely, a dagger with a blade longer than five inches. He contends that: 1) the trial court improperly denied his motion to quash the indictme...
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*108 Opinion Appellants Harris and Baker were charged in one count with kidnaping (Pen. Code, § 207) and in three counts, as principal or aider and abettor, with rape by force and by threats of great bodily harm (Pen. Code, § 261, subds. 2 and 3). In addition, Harris was charged with one count of robbery (Pen. Code, § 211). Appellants were convicted as charged. The questions before us are: ...
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Opinion In Carl v. City of Los Angeles (1976) 61 Cal.App.3d 265 [132 Cal.Rptr. 365] the Court of Appeal held a Los Angeles City “news rack” ordinance invalid because its broad provisions violated First Amendment guarantees and intruded upon a state-preempted area of regulation of the distribution of “harmful matter” to minors. The Carl court left open the possibility that a more narrowly drawn or...
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93 Cal.App.3d 151 (1979) 155 Cal. Rptr. 453 THE PEOPLE, Plaintiff and Respondent, v. JOHN WONG, Defendant and Appellant. Docket No. 32540. Court of Appeals of California, Second District, Division Four. May 17, 1979. *152 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Charles M. Sevilla, Chief Assistant State Public Defender, Donald L.A. Kerson and Susan L. ...
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Opinion This is an appeal by the Sheriff of San Joaquin County, Mr. Frank Harty, from an order issued by the Municipal Court for the City and County of San Francisco ordering him to levy upon, publish and sell the property of Mr. Salvador Fabila, real party in interest to this action. Although not a party in the original action, none of the parties contests the appellant’s right to bring this app...
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Opinion By writ of review petitioner seeks to annul a decision of the Workers’ Compensation Appeals Board denying compensation. Early in September 1977, petitioner was introduced to Maxwell Harding, 1 and was advised that Harding, a drywall contractor, had contracted to install drywall in 26 condominiums located in Tahoma, California. Petitioner apparently agreed to employ...
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*174 Opinion Defendants (defendants or lessors) appeal from a declaratory judgment in favor of plaintiff (lessee) which, in effect, decreed specific performance of an option for renewal of the lease between the parties. The controlling question is whether the trial court erred in granting lessee equitable relief from his failure timely to exercise the option. We have concluded it...
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Opinion George S. Nolte Consulting Civil Engineers, Inc., judgment creditor of respondent Emil Magliocco, appeals from an order directing entry of satisfaction of judgment, releasing a lien, and awarding damages and attorney’s fees to respondent (see Code Civ. Proc., § 675). Respondent owned realty in Woodside. Appellant did engineering work for a proposed development of the property. Litigat...
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Opinion Respondent Henry Gates brought an action against appellants Trans Video Corporation, his employer, and Merle Block, the general manager, on theories of intentional infliction of emotional distress and conversion arising out of two encounters between Gates and Block at the employer’s premises in September 1974. Appellants appeal from the judgment entered upon the juiy’s verdict in ...
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Opinion The City of Garden Grove appeals from a judgment of the Superior Court of Orange County granting a peremptory writ of mandate directing the city to pay William E. Willis, a retired fireman, all of his sick leave accumulated and unused at the time of his disability retirement under the Public Employees’ Retirement System (PERS). The facts are not in dispute. William Willis was employed...
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Opinion Respondent Joe E. Mason (husband) filed a petition for dissolution of his marriage with appellant Donna L. Mason (wife) in Kern County Superior Court on February 13, 1976. Wife filed a response and the trial of the dissolution action commenced on September 30, 1976. The trial court announced its notice of intended decision on October 1, 1976. At wife’s request, findings of fact and conclus...
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Opinion Marilyn Tara appeals from a judgment confirming an arbitration award in favor of respondent California State Automobile Association. The issue on appeal is whether a person who provides housekeeping services to a recuperating victim who was injured in an automobile accident involving an uninsured motorist may recover the value of those services directly from an insurer under the v...
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Opinion Alan C. Guilbert appeals from a judgment denying his petition for writ of mandate and request for declaratory relief against the Regents of the University of California, David Saxon and Roger E. Batzel. The central issue on appeal is whether a letter written by the president of the university to Guilbert’s supervisor following a disciplinary hearing denied him due process of law. ...
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Opinion This appeal challenges the denial by the Tuolumne County Superior Court of a suppression motion made by a minor against whom wardship proceedings had been commenced pursuant to Welfare and Institutions Code section 602. Two questions of first impression are presented; (1) Does Penal Code section 1538.5 apply to juvenile court proceedings so that a minor who admits the allegations ...
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Opinion This is a consolidated appeal by Sea-Land Service, Inc., from orders denying its motion to strike cost bills following a compromise of actions which arose out of the SS Mayaguez incident off Cambodia in May 1975. For the purposes of appeal, the parties stipulated to a statement of agreed facts which is set out below. “Plaintiff Alfred Rappenecker filed a suit for p...
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Opinion Respondent Gold Coast Leasing Company (Gold Coast) obtained a judgment of $3,161.78 against California Carrots, Inc. (Carrots). In July of 1970, Gold Coast, engaged in the vehicle leasing business, was leasing trucks to Salinas Truck Transport, Inc. (STT). Carrots was STT’s principal customer. STT assigned to Gold Coast all money due or to become due under its hauling contracts wi...
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*284 Opinion Mrs. Evangeline McKenna underwent a therapeutic abortion and tubal ligation at Cedars of Lebanon Hospital on January 17, 1974. That afternoon, she had a seizure and was treated by a resident of the hospital. She stopped breathing and went into a coma from which she never recovered. She died over a week later. Her husband and children sued Dr. Margolin, her physician; Dr. Gilman, ...
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*293 Opinion Plaintiff, Lewis W. Evans, appeals from an order settling and approving a final account and report of a receiver (David L. Ray) and from an order taxing one-half of the fees and other costs of the receiver to plaintiff and denying his motion for attorney’s fees. The appeal lies. (Code Civ. Proc., § 904.1, subd. (b).) Plaintiff confines his only brief filed with ...
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Opinion Cross-Complainant, Joseph Gbur, appeals from a judgment (Code Civ. Proc., § 58Id) dismissing his first amended cross-complaint against two of the three individual nonfictitious cross-defendants named therein, Charles Cohen, and G. H. Riedinger, following the sustaining, without leave to amend, of their respective general demurrers to this pleading. 1 The appeal lies. (C...
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*327 Opinion This case poses a narrow question. Is an attorney’s act of handing a police report to the client a “communication” within the attorney-client privilege (Evid. Code, § 952)? We conclude such an act is a communication, is privileged and so affirm the superior court’s granting the writ of habeas corpus and discharging the order of contempt. Attorney Linda Navarro w...
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Opinion Petitioners Frances Reuter (mother) and Albrecht Reuter II (son) are plaintiffs in an action pending before the respondent court. The lawsuit arises from an automobile accident in which the son *335 was injured and his father killed. Real party in interest is a defendant in that action. The mother serves in three capacities in the suit: individually in her cause ...
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Opinion The appeal at bench concerns the question whether a publicly held utility company must bear the relocating cost of its underground facilities where the relocation is necessitated by vacation of streets in furtherance of a redevelopment project under the California Community Redevelopment Law (Health & Saf. Code, 1 § 33000 et seq.). The parties to this appeal are ap...
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Opinion This is an appeal from a judgment of the Superior Court of Contra Costa County entered pursuant to Code of Civil Procedure section 1094.5, ordering the issuance of a writ of mandamus directing the Department of Motor Vehicles to set aside its decision revoking the license of Robert Brewer. On March 3, 1976, appellants Department of Motor Vehicles and its director (hereinafter...
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Opinion Jimmy M., a minor, appeals from an order of the juvenile court finding him to be a person described in Welfare and Institutions Code section 602 1 and committing him to the California Youth Authority (hereinafter CYA). *372 In 1978, when appellant was 17 years old, the Santa Clara County District Attorney filed in the juvenile court a series of petitions in which he alleged that a...
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Opinion Defendant-appellant Billy Irl Glover (hereafter appellant) appeals from a judgment of conviction for violation of Penal Code section 211 (robbery) following the denial of his motion to suppress evidence and a plea of guilty. Appellant attacks the trial court’s ruling on his section 1538.5 motion, claiming that currency and coin seized from appellant’s vehicle should have been suppressed...
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Opinion Plaintiff Candace C. Cable appeals from a judgment (order of dismissal) in favor of defendant Sahara Tahoe Corporation in her suit for damages for personal injuries sustained in a *386 single vehicle accident which occurred in Douglas County, Nevada, near Stateline. The dismissal followed an order sustaining, without leave to amend, defendant’s demurrer to the complai...
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Opinion Appellant, Paul Adcock, appeals from a judgment denying his petition for a writ of mandate to set aside the decision of the Board of Administration of the Public Employees’ Retirement System (PERS) rejecting his application for service credit toward retirement based upon his years of service as an inheritance tax referee. The appeal lies. (Code Civ. Proc., §§ 904.1, subd. (a), 109...
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*409 Opinion On August 3, 1977, a complaint was filed in West Kern Municipal Court charging appellant in count one with violating Penal Code section 417 (exhibiting a firearm in a rude, angry and threatening manner); in count two with violating Penal Code section 12021 (felon in possession of a concealable firearm); in count three with violating Penal Code section 12031, subdivision (a) (carr...
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93 Cal.App.3d 417 (1979) 155 Cal. Rptr. 650 DENNIS A. DAVIS, Plaintiff and Respondent, v. CIVIL SERVICE COMMISSION OF LOS ANGELES COUNTY et al., Defendants and Appellants. Docket No. 54348. Court of Appeals of California, Second District, Division Four. May 24, 1979. *418 COUNSEL John H. Larson, County Counsel, William F. Stewart, Chief Deputy County Counsel, and Joe Ben Hudgens, Deputy County Co...
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*427Opinion Defendant was charged in count I of the information with murder (Pen. Code, § 187) and in count II with possession of heroin for sale (Health & Saf. Code, § 11351). A motion to suppress (Pen. Code, § 1538.5) was granted by the trial court, and defendant’s motion to dismiss (Pen. Code, § 995) was thereafter granted as to count II. The People appeal from the judgment of dismissal, conte...
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Opinion This is an appeal by defendants and cross-complainants, George Feher, Albert Jackson and David B. Mogilefsky (defendants), from a judgment of dismissal entered upon an order sustaining the demurrer of cross-defendant, California Tahoe Regional Planning Agency (CTRPA), to all causes of action in defendants’ second amended cross-complaint for declaratory relief without leave to amen...
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—I dissent.The majority view extends the scope of duty to an extreme degree. That extension as applied in this case requires that any person who does business or otherwise invites others to his place of business must first determine the place least likely to be hit by an intoxicated driver’s automobile. I submit that this is such an unreasonably high standard of duty as to be near illusory and imp...
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Opinion Defendant has appealed from the order denying his motion to set aside- judgment for child support. 1 The judgment was entered pursuant to an agreement for the entry of judgment as authorized by Welfare and Institutions Code section 11476.1. Contentions on Appeal Appellant asserts that: (a) Welfare and Institutions Code section 11476.1 is unconstitutio...
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Opinion Appellant was first employed as a clerk typist by respondent university in 1969. As early as December 1972, her supervisors were concerned about her attendance record, conferred with her about it, and in March 1973 sent her a memorandum complaining of the lack of noticeable improvement “in your sick leave or tardiness because of illness.” In that same month, her performance evaluation n...
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Opinion In this case, we are presented with an appeal and a cross-appeal from a judgment entered in favor of a workers’ compensation insurance carrier which intervened in an action brought by an injured employee against two third party defendants (Lab. Code, §§ 3852, 3853). On May 5, 1972, Donald Rhode injured his back during the course of his employment as an outside television tech...
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Opinion Defendant, ex-husband, has appealed from a judgment granting his ex-wife a deficiency judgment on a secured note given pursuant to an agreement, under which they divided real property awarded to them as tenants in common in the decree dissolving their marriage. The trial court found that the note and the deed of trust, on one of the parcels formerly held as tenants in common, was ...
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Opinion Because of a drastic reduction in funding brought about principally by the passage of last year’s Proposition 13, and the statutory requirement of a balanced budget (see Ed. Code, § 14050 et seq.), the Board of Education (Board) of the Palo Alto Unified School District (District) voted unanimously by resolution to close one of the District’s high schools. Without unanimity the Board the...
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Opinion Robert C. Hamilton was employed as a deputy sheriff of Alameda County throughout the 25-year period, March 31, 1948, through March 31, 1973, on which latter date, at age 57, he took normal (nondisability) retirement. About 4 years later, January 12, 1977, at age 60 he petitioned the Workers’ Compensation Appeals Board (Board) for compensation, claiming to have been disabled by cardiovas...
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Opinion Petitioner raises the question of whether his prosecution for four counts of burglary should have been dismissed pursuant to Penal Code section 995 because of a violation of Penal Code section 859b. He seeks a writ of prohibition from this court. Penal Code section 859b, insofar as is pertinent, provides: “Both the defendant and the people have the right to a preliminaiy examination a...
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Opinion Two insurance carriers, International Surplus Lines Insurance Company (ISLIC) and Hartford Fire Insurance Company (Hartford) both provided insurance coverage for Devonshire Coverage Corporation (Devonshire). The latter, itself, does business as a general insurance agent. The instant action basically involves a dispute between the two carriers as to which of them is required t...
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Opinion Proceeding in mandate to require the Board of Administration of the Public Employees’ Retirement System to approve petitioner’s application to retire bn October 1, 1979, with retirement benefits. At the direction of the Supreme Court of the State of California, we granted an alternative writ. After serving as a California judge for 20 years, James D. Xante (petitioner) retired in June...
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Opinion Plaintiff, individually and on behalf of all similarly situated taxpayers in Sacramento County, instituted this action for recovery of property taxes alleged to have been levied illegally. After the trial court sustained a demurrer challenging the class action aspect of the lawsuit, an amended complaint was filed wherein causes of action for tax refund were alternatively asserted on beh...
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Opinion This is an appeal by plaintiff, Erma Young, an employee of the State of California (State), from an order denying her request for a peremptory writ of mandate seeking to annul the effect of *639 California Administrative Code, title 2, section 102 (hereafter SPB rule 102), and directing that the State pay her back salary on merit and special in-grade salary adjustment...
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Opinion We face in this appeal a variation on a popular and recurring theme—punitive damages in a “bad faith” case relating to uninsured motorist coverage. We decide plaintiffs are entitled to compensatory and punitive damages, rejecting defendants’ several arguments and conclude further it was not an abuse of discretion for the trial court to grant a new trial unless plaintiffs consented...
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Opinion Petitioners, defendants in a wrongful death action, seek relief by extraordinary writ after respondent court denied their motion to compel real party, Carol Christensen, to answer questions propounded at *687 her oral deposition, For the reasons hereinafter stated we have concluded Welfare and Institutions Code section 10850, upon which real party based her refusal t...
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93 Cal.App.3d 696 (1979) 155 Cal. Rptr. 307 RAYMOND JOHN ANDERSON, Plaintiff and Respondent, v. DEPARTMENT OF REAL ESTATE et al., Defendants and Appellants. Docket No. 54049. Court of Appeals of California, Second District, Division One. May 11, 1979. *698 COUNSEL Evelle J. Younger and George Deukmejian, Attorneys General, Arthur C. de Goede, Assistant Attorney General, and Richard W. Bakke, Depu...
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Opinion In count I of an information, defendant was charged with burglary in violation of Penal Code section 459. The victim was Dorothy S. In addition, it was alleged that the defendant intended to, and did, inflict great bodily injury upon the victim during the commission of the offense within the meaning of Penal Code section 461. It was also alleged that defendant was armed with a deadly we...
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*739 Opinion The Attorney General and the Department of Health, known since July 1, 1978, as the Department of Health Services (Health & Saf. Code, § 20, as amended Stats. 1977, ch. 1252, § 109), hereinafter referred to as the Department, have appealed from an order of the trial court that denied their motion to set aside and vacate a “Stipulation and Order for Judgment.” The sti...
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*772 Opinion Following appropriate administrative proceedings, the Department of Real Estate of the State of California and Robert W. Karpe, Real Estate Commissioner of California (hereafter collectively and for convenience, Commissioner), imposed disciplinary sanctions upon Homeowners Loan Corporation (hereafter Homeowners) and certain individuals affiliated in one way or anothe...
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Opinion The People have appealed from an order dismissing (Pen. Code, § 995) an information which charged Dale A. Kern with possession of a sawed-off shotgun (Pen. Code, § 12020) and possession of methamphetamine (Health & Saf. Code, § 11377). The question is *781 whether the court acted correctly when it determined that the evidence admitted against Kern at the preliminary h...
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Opinion An interlocutory judgment of dissolution of marriage was entered requiring respondent to pay certain sums to appellant monthly for support of their minor children. Respondent failed to make payments for one year and two months. Appellant caused an order to show cause for a wage assignment to be filed. After the filing of the order to show cause, respondent paid all child support due. Th...
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*790 Opinion Defendant was convicted by guilty plea of voluntary manslaughter (Pen. Code, § 192, subd. 1). The sole issue on this appeal 1 is the allowance of credit for time served under Penal Code section 2900.5. A complaint was filed in municipal court on May 19, 1977, alleging a violation of Penal Code section 187 on May 11, 1977. Defendant was in custody at Deuel Vocational Institute...
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Opinion Procedural Background The action in the trial court by real party Air Quality Products, Inc., (Air Quality) sought money damages on an injurious reliance theory, and named as defendants, among others, the State of California and the State Air Resources Board (Board). The literal basis of the complaint in the language of Air Quality’s answer to the writ petition here under consideratio...
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Opinion The question we are here called upon to decide is whether the plaintiff’s alleged claim for medical malpractice was barred by the alternative lesser one-year statute of limitations as contained in section 340.5 of the Code of Civil Procedure. 1 At the conclusion of *815 plaintiff’s case the defendants moved for a nonsuit, and the motion was granted on the basis of the affirmative de...
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Opinion This appeal is taken from an order sustaining respondent’s demurrer to appellant’s second amended cross-complaint for damages resulting from negligence and for reformation. *840 Cross-complainant and appellant James D. Jackson is the owner of three parcels of commercial real estate in Berkeley, California. In September 1973, appellant leased one of these properties t...
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Opinion Asiatic Transpacific Inc., AFI Worldwide Forwarders and AFI Consolidators appeal from an order granting respondent Worth’s motion for a new trial. The proceedings in the court below began on March 20, 1975, when McCall Oil and Chemical Corporation (McCall) filed a complaint against Tyler Consolidators, Inc., (Tyler) for breach of contract. McCall also sued respondent herein f...
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Opinion Petitioner Randall Charlton was convicted of first degree murder in 1974. Thereafter Charlton petitioned for a writ of habeas corpus, contending that his trial counsel was incompetent. In November 1978, the California Supreme Court issued an order to show cause, returnable before the San Francisco County Superior Court to inquire into the validity of petitioner’s contention. At the hear...
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*867 Opinion Since 1933, San Diego County has operated under a charter providing for “home rule.” (Approved by the Legislature Jan. 17, 1933, Stats. 1933, res. ch. 10, p. 2814; see Cal. Const., art. XI, §§ 3, 4; see also former art. XI, § IVi.) In November 1976 the voters of San Diego County amended the charter by adding section 14.1 which placed a limitation on the number of consecutive te...
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Opinion Nicole B. was declared a person described by Welfare and Institutions Code section 300, subdivision (d),1 and placed in the *877home of her mother under the supervision of the Director of the San Diego County Department of Welfare. The mother appeals this order, The only issue is whether the facts stipulated to by all the parties are sufficient, as a matter of law, to support the court’s...
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Opinion Defendants appeal from judgments of conviction finding them guilty of: (1) violating section 11010 of the Business and Professions Code 1 (offer to sell or lease subdivided lands without written notification to the .Real Estate Commissioner); (2) violating section 11018.2 B. and P. (offer to sell or lease parcels of land from the Real Estate Commissioner); and (3) nine counts of viola...
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Opinion After his motion to suppress evidence (Pen. Code, § 1538.5, subd. (a)) was denied, defendant entered a plea of guilty to the charge of possession for sale of a barbituric acid derivative, a controlled substance (Health & Saf. Code, § 11378). He appeals from the judgment of conviction (Pen. Code, § 1538.5, subd. (m)). *914 Facts Information received from an untes...
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Opinion A referee of the juvenile court found that the minor came within the provisions of Welfare and Institutions Code section 602 because on two occasions—February 27, 1978, and March 28, 1978—he had committed the offense of burglary. (Pen. Code, § 459.) 1 The referee *919 found that the March 28 burglary was in the second degree and, pursuant to Welfare and Institutions Code section 726...
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Opinion We are here concerned with California’s Agricultural Labor Relations Act (hereafter sometimes, the Act). The Act *927 is codified as Labor Code sections 1140-1166.3 and it became effective August 28, 1975. With near precision the several sections of the Act copy corresponding provisions of the National Labor Relations Act, found in 29 United States Code, commencing wi...
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Opinion This is a petition for peremptory writ of mandate (or prohibition) to require the respondent Superior Court of Siskiyou County to afford petitioner a jury trial. *979 The State of California, acting through the Department of Transportation (hereinafter plaintiff), brought suit in the small claims division of the Yreka Judicial District against petitioner (hereinafter...
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Opinion A jury found defendants Gephart, Grossen and Hryn guilty of the crime of armed robbery in violation of Penal Code section 211. Defendants assert that the Siskiyou County Superior Court erred when it determined that a prior order of another court, the Stanislaus County Superior Court, granting a motion under Penal Code section 1538.5 suppressing evidence, was not binding as to...
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Opinion Appellant appeals from a judgment which was rendered after a jury found him guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)), with a special finding that he had used a firearm within the meaning of Penal Code section 12022.5. Carlos and Manuel Galvan were driving to the “Shortstop” store in Napa when they encountered appellant, who was on a motorcycle. Appellant ch...
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Opinion Article IX of the San Diego City Charter provides for the creation of a retirement system (System) for city employees to be managed by a board of administration (Board). (San Diego City Charter, art. IX, §§ 141-148.1.) The city council, pursuant to its power under section 146 of the charter, has enacted through the years a series of *36 ordinances affecting the System which are now co...
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Opinion A jury convicted Carlos Vasquez of first degree robbery (Pen. Code, § 211) and found he used a firearm in the commission of the offense (Pen. Code, § 12022.5). The judge committed him to the California Youth Authority (CYA) for the term prescribed by law. Vasquez appeals contending (1) prejudicial error in instructing the jury and (2) sentencing error in failing to give credit for prese...
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Opinion Statement of the Case Appellant Margery S. appeals from a judgment of the juvenile court declaring her five-year-old daughter Jeannette S. a dependent child of the juvenile court under section 300, subdivisions (a) and (b) of the Welfare and Institutions Code and removing the child from her custody and control under section 361, subdivisions (a) and (b) of that code. (All fur...
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*65 Opinion Edward P. Botsford, trustee, and two corporations, plaintiffs below, appeal from a written order (Code Civ. Proc., § 58Id) dismissing their complaint as against defendants and respondents John R. Pascoe and others, under Code of Civil Procedure section 581a, subdivision (a), for failure to make return of service on the summons within three years after the commencement...
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Opinion Gary Allen Bradburn died as a proximate result of an industrial injury. Jeremy Shannon (Harrison) Tessler (hereafter for convenience, Jeremy) entered into a “Compromise and Release” with Bradburn’s employer and its insurance carrier under which, as a partial dependent of the deceased worker, she would be paid a lump sum benefit of $10,000. When the parties sought its approval of their a...
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Opinion Plaintiffs Hartford Accident and Indemnity Company, a corporate insurer, and John W. Osborne, a used car dealer doing business as John W. Osborne Company, sought declaratory relief (Code Civ. Proc., § 1060) against named defendants concerning their respective obligations arising out of an automobile collision near Terminal Island, a collision which resulted in the death of Valerie...
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Opinion The questions we face are these: First, may the California Highway Patrol dismiss from its employ a patrolman who: (1) attended (with expectations of sexual gratification) and did participate in a sexual act at an advertised commercially sponsored transvestite “party” for which he paid an attendance fee; (2) did have or reasonably should have had knowledge that prostitution was practice...
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Opinion Transit Casualty Company (Transit), an excess insurer, sued its policyholder, Spink Corporation (Spink), and the primary insurer, *129 American Motorists Insurance Company (American), for their refusal to settle death and injury claims growing out of a construction site accident. The jury awarded Transit damages of $460,000. Spink and American appeal. Spink, a Sa...
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Opinion Plaintiff, injured in a traffic accident, sued for damages. Her complaint alleges that defendant, Gerald Kristoffersen, was negligently operating a motor vehicle owned by his mother, defendant Ruth Kristoffersen, striking a motorcycle upon which plaintiff was a passenger. Prior to trial Gerald settled with plaintiff for $15,000. After a dismissal with prejudice was filed as to the dri...
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Opinion Defendants, Guild Industries Corporation (Guild), a Florida corporation, and its officers and directors, M. Byrd, R. Byrd, J. Bass, R. Berman and L. Silverstein (hereafter collectively franchisors) appeal from a judgment entered on a juiy verdict in favor of Spahn, et al. (hereafter collectively franchisees) 1 awarding compensatory and punitive *147 damages...
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Opinion Defendant, Steven Clair Wischemann, appeals from a judgment of conviction entered on a jury verdict finding him guilty of four counts of robbery (Pen. Code, § 211), while armed (Pen. Code, § 12022, subd. (a)) and using a firearm (Pen. Code, § 12022.5) during the commission of each offense. Defendant contends that: 1) he is entitled to a new trial on the issue of sanity in light of Peop...
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Opinion Petitioner challenges two Humboldt County Superior Court orders. The first revoked a stay of execution of his sentence for violation of Health and Safety Code section 11350. The second denied his motion to reinstate the stay or to permit him to withdraw his plea of guilty. One condition bargained for by petitioner when he entered his plea of guilty, and accepted by the trial court at ...
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Opinion Petitioners John Schumacher and Comin Group, a general partnership, seek a writ of mandate commanding respondent *189 Superior Court of Santa Clara County to set aside its order sustaining defendants-real parties in interest’s demurrer to the sixth cause of action of petitioners-plaintiffs’ first amendment to their original complaint in the underlying fraud and securi...
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Opinion Respondent Charles Lawson (hereinafter defendant) was charged by information filed June 28, 1978, with transporting, selling, furnishing and giving away heroin (Health & Saf. Code, § 11352) on October 6, 1976. The weight of the heroin was alleged to have exceeded one-half ounce. On July 7, 1978, defendant moved to dismiss the action on the ground that as a result of the delay...
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Opinion This appeal was transferred here from the Appellate Department of the Los Angeles Superior Court under rule 62, California Rules of Court, to settle an important question of law: that is, in a criminal case may the People appeal from a pretrial order of the municipal court striking an allegation of prior conviction. (1) We have concluded that the order is appealable under Penal Code sec...
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Opinion This appeal challenges the constitutional validity of an inspection warrant issued to representatives of the California Division of Industrial Safety (hereinafter Division) to enter appellant’s place of business for a routine safety inspection pursuant to the California Occupational Safety and Health Act (hereinafter Cal/OSHA; Lab. Code, §§ 6300 to 6708). The warrant was issued without ...
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Opinion Defendant Roger Ira Stein was charged with 18 counts of grand theft accomplished by means of embezzlement (Pen. Code, §§ 484, 487, subd. 1, 506) by an information filed in the Tulare County Superior Court on July 15, 1976. Defendant pleaded not guilty on July 16, 1976, and waived time for trial on July 19, 1976. *237 Defendant moved to dismiss the information pursuant to Penal Code ...
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OPINION THE ISSUE In this case we hold that Miranda principles are not applicable to proceedings under Welfare and Institutions Code section 6500.11 (mentally retarded persons who are a danger to themselves or others). However, *Page 244 we further hold that the trial court must, on appropriate motion, hold a Jackson v. Denno, 378 U.S. 368 [12 L.Ed.2d 908, 84 S.Ct. 1774, 1 A.L.R.3d 1205], (Evid....
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Opinion Petitioner Lorenz Bauer seeks a review of a decision of the Workers’ Compensation Appeals Board (Board) affirming the assessment by the workers’ compensation judge (Judge) of a limited penalty, pursuant to Labor Code section 5814, 1 on delayed compensation benefits owed to petitioner. 2 On August 26, 1976, the Judge awarded compensation benefits to petitioner for reimbursement of ...
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Opinion This is an appeal from an order of modification of an interlocutory judgment of dissolution. The order made certain provisions with regard to visitation, ordered the husband (appellant) to return his children to their grandparents’ home, rather than their own home, after visitation with him, denied the husband knowledge of the address of his children, and ordered husband to pay the enti...
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Opinion In 1976 the City of Santa Barbara sought to establish a county service area to provide sheriff’s patrol service in the Goleta Valley pursuant to the County Service Area Law. (Gov. Code, § 25210.1 et seq.) 1 Its application to that effect was forwarded for review to the county’s local agency formation commission (LAFCO) agreeably with section 25210.3a. LAFCO amended the ...
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Opinion Thomas H. Denman appeals the order instructing Bank of America, NT & SA (Bank) to resist his petitions to determine community property and to probate a later dated will. Alice T. Denman died December 28, 1976, leaving an estate in excess of $6 million. Alice’s will dated September 16, 1975, with a codicil, was filed on January 28, 1977, and made the following dispositions: $5...
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Opinion Teresa Turner appeals from the default judgment entered against her, awarding damages to plaintiff in the amount of $20,000. She *317 contends the default was improperly entered and that the subsequent judgment is void. For reasons hereinafter set forth we conclude that Turner is correct in her contentions. A brief summary of the facts is required. On April 12, 1...
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Opinion Defendant, David Barker, was charged by information with three felony violations of section 187 of the Penal Code: the murders of Floyd Braeseke, his wife, Barbara Braeseke, and Floyd’s father, John Braeseke, all in the same incident on August 23, 1976, in Alameda County, California. He entered a plea of not guilty to all three counts. A jury found him guilty of two counts of second deg...
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*339 Opinion Beverly and John Webb separated in 1974, after 23 years of marriage. Two years later, an interlocutory decree of dissolution was entered. Mrs. Webb was 44 years old and Mr. Webb was 45. Two of their five children were still minors. Custody of the minor daughter was awarded to Mrs. Webb, and the minor son to Mr. Webb. For 17 of the years of his marriage John Webb had been a San Fr...
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Opinion The issue presented is whether lawyer I who is sued by a former client for professional negligence may cross-complain for equitable indemnity against lawyer II who was retained to extricatethe client from the situation created by the alleged negligence of lawyer I. We have concluded that under the circumstances presented here the answer is negative. This is an original proceeding for a wr...
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Opinion The minor was charged with being a person coming under section 602 of the Welfare and Institutions Code in that he had *364 committed: (1) robbery, in violation of section 211 of the Penal Code; (2) burglary, in violation of section 459 of the Penal Code; and (3) attempted burglary, in violation of sections 664 and 459 of the Penal Code. After having been given his Miranda warnings,...
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Opinion The People seek review by writ of mandate of respondent superior court’s order suppressing evidence. Defendants McCaffery and Citizen are police officers who were charged with receiving stolen property and with solicitation of burglary. The charges were based upon a search of defendants’ residences pursuant to a warrant. This case illustrates that in preparing affidavits for search ...
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Opinion Carlo S., a minor, was accused by a Welfare and Institutions Code section 602 petition of committing an act described by Penal Code section 245 as “assault.'. .by any means of force likely to produce great bodily injury,” a felony. Following a contested jurisdictional hearing the minor was found by the juvenile court to have committed the act proscribed by Penal Code section 148 and gen...
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Opinion This is an appeal by the County of San Mateo, the county assessor, and the State Board of Equalization (County) from a judgment granting a property tax exemption under section 214 of the Revenue and Taxation Code (the welfare exemption) for property owned by the Peninsula Covenant Church (Church). The Church paid property taxes under protest for the years 1975-1976 and 1976-1977, ...
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*405 Opinion Northern California Power Agency (NCPA) appeals from a judgment dismissing the third party claim of NCPA to the proceeds of certain attachments levied against Resource Funding, Ltd. (RFL) by Ronald H. Askew (Askew). 1 On February 14, 1977, Askew filed an action against RFL to enforce payment of a promissory note in the amount of $47,000 given to Askew by...
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Opinion This is an appeal from a judgment of conviction of violation of section 148.1, subdivision (a), of the Penal Code, making a false bomb report. 1 The appeal is based upon appellant’s contentions that the court erred in failing to recognize the marital communication privilege and that there is not substantial evidence to support his conviction. On July 4, 1977, a call was received by ...
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Opinion R. E. Spriggs Company, Inc., appeals from a judgment on its cross-complaint in favor of cross-defendant Adolph Coors Company. Adolph Coors Company (Coors) is a Colorado corporation. It manufactures, brews, and bottles beer .only in Golden, Colorado, and sells it, f.o.b. Golden, to wholesale distributors in 11 western states, including California. Appellant R. E. Spriggs ...
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Opinion Michael S. Smith appeals his conviction of two counts of robbery (Pen. Code, § 211), one of which carried the allegation he used a knife (Pen. Code, § 12022, subd. (b)). Smith pleaded guilty and urges sentencing error on appeal. *435 The court imposed the aggravated term of four years for robbeiy, enhanced it by one year for use of a knife and ordered a concurrent sentence on the ot...
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Opinion Respondent Gordon Jensen was accused of perjury (Pen. Code, § 118) on applications for California identification cards. The information charged Jensen with applying for an identification card under the name of Charles Lee Canavesio and with subsequently applying for another identification card in his own name and of falsely certifying that he had never applied for a license or ide...
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Opinion After denial of her motion pursuant to Penal Code section 1538.5 to suppress evidence, defendant Carney Mae Patterson (Patterson) pleaded guilty to possessing piperidine and cyclohexanone at the same time with intent to manufacture phencyclidine (PCP) in violation of Health and Safety Code section 11383, subdivision (b). Patterson was thereupon placed on probation, one of the conditions...
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Opinion Defendant stands charged with murder. After the appointment of psychiatrists, a hearing was held under section 1368 of the Penal Code, resulting in a finding that defendant is presently incompetent to stand trial and she is presently committed to a state hospital until she regains capacity. Thereafter, her counsel sought an order for the appointment of confidential psychiatrists to enab...
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Opinion By petition filed in the juvenile court, it was alleged that Tracy J. was a minor who came within the provisions of Welfare and Institutions Code section 602. In count I it was alleged that Tracy had committed the felony offense of robbery in violation of Penal Code section 211. In count II it was alleged that Tracy had assaulted the victim by means likely to produce great bodily injury, a...
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Opinion The purpose of this action is to dissolve the 37-year marriage of James and Marian Bastian. Marian filed a “First Amended Complaint to Join Party Having Control of Community Property.” The first amended complaint alleged that the trustee of the Boilermaker-Blacksmith National Pension Trust (the Trust) had control of community funds—James’ pension—belonging in part to Marian; a cop...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 168 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 169 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY...
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Opinion This is an action by the state for civil penalties against the City and County of San Francisco for pollution of state waters. The pollution occurred during a public employees’ strike in March of 1974. The jury awarded $500,000 to the state, the court reduced that amount to $150,000 and held that appellant unions, by virtue of indemnification, were liable for the entire amount. Wh...
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*536 Opinion Both Arthur Trantafello (hereinafter Husband) and Dorothy Trantafello (hereinafter Wife) appeal from portions of a judgment in Family Law Act proceedings. Wife, who was respondent in Husband’s petition for dissolution, filed a response in which she sought a declaration of nullity pursuant to Civil Code section 4425, subdivision (d) (fraud). The judgment granted Wife a “Judgment o...
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Opinion Plaintiff County of Los Angeles appeals from a judgment dismissing its action against defendant Donald Bruce Ferguson. The action was brought “on behalf of the minor child named hereinafter [Martin Ferguson, born on Mar. 2, 1960], under the provisions of Sections 11350.1 and 11475.1 of the Welfare and Institutions Code.” The prayer sought as relief a judgment “[t]hat the defendant...
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Opinion Defendant Terry Fernando Maxwell appeals from a judgment of conviction of false imprisonment (Pen. Code, § 236) as a lesser included offense of kidnaping (Pen. Code, § 207), 1 following a court trial. Defendant’s conviction was based upon evidence consisting chiefly of the testimony of the victim, Melinda Renee Russell, elicited at the preliminary hearing held on Februa...
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Opinion The People appeal from the denial of their motion to vacate an order issuing a certificate of rehabilitation to petitioner James Reginald Daudert (hereinafter petitioner). *583 Petitioner was convicted by a plea of one count of armed robbery (former Pen. Code, § 211a) involving use of a knife on April 18, 1972. He was sentenced to prison for the “term prescribed by law,” released on p...
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Opinion Plaintiff State of California (State) appeals from an award of litigation costs to defendant Sunshine Canyon, Inc., (Sunshine) pursuant to Code of Civil Procedure section 1250.410—formerly section 1249.3. 1 Facts The award—$50,820.15—stems from an eminent domain action—hereafter the “direct” action—instituted by the State Department of Transportation to condemn certain real proper...
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*610 Opinion Kate’ School, a California nonprofit corporation (the School) 1 is licensed by the State Department of Social Services 2 (the Department) as a community care facility (Health & Saf. Code, 3 §§ 1502, 1503, 1508, 1525) 4 for developmentally disabled children whose primary mental disorders are autism or childhood schizophrenia...
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Opinion Petitioner seeks a writ of mandate directing respondent court to grant its motion to appoint separate counsel for real parties because their present counsel has a conflict of interest. Facts Real parties stand accused by information of murder; a special circumstance is alleged as to real party Mroczko only which subjects him to possible punishment by death. *628 Richard A. Carse...
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Opinion Appellant is the owner of a large parcel of land approved by the Contra Costa County Board of Supervisors for a planned community development. The project includes 4,800 acres of land, 2,000 *642 of which are to be dedicated for inclusion in Mt. Diablo State Park. Four thousand two hundred homes are planned for the remainder, with associated recreational and commercial facilities. N...
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Opinion A default judgment in the principal sum of $29,100 was entered in favor of plaintiff Charles McGaughey and against Oren Enterprises, Inc. (Oren), a licensed real estate broker, in an action based on fraudulent sale of a limited partnership interest in an apartment complex. Upon failure to discover any assets of the judgment debtor, plaintiff applied for an order of the court direc...
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*654 Opinion In this appeal, we consider the narrow issue of the extent of protection afforded a public entity by the filing of a surety bond by a general contractor pursuant to Civil Code section 3196 in order to secure the release of funds withheld from the contractor by reason of a dispute over a stop notice filed with the entity by a subcontractor. We conclude that a public ...
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Opinion Petitioner, Cathy Gunn, appeals from a judgment denying her petition for a writ of mandate directing respondents, California Employment Development Department and California Unemployment Insurance Appeals Board to set aside the determination and decision of each of them that she was ineligible for unemployment insurance benefits. The appeal lies. (Code Civ. Proc., §§ 904.1, subd. ...
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*669 Opinion Hemy Friedman appeals from an order overruling his objections to the report of the inheritance tax referee and assessing an inheritance tax against his son, Richard H. Friedman, of $15,244. The appeal lies. (Prob. Code, § 1240.) The trial court found that the inter vivos trust agreement between Flemy and his wife, Bella, the decedent, did not grant to Henry as trustee a gener...
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Opinion Defendant, Freddie Oliver Cooper, appeals from the judgment imposed upon him following his conviction of possession of heroin for sale. (Former Health & Saf. Code, § 11351, subd. (a).) The appeal lies. (Pen. Code, § 1237, subd. I.) 1 Defendant raises the following contentions on appeal: (1) The trial court erroneously instructed the jury that it could infer a consciou...
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94 Cal.App.3d 685 (1979) 157 Cal. Rptr. 1 J.C. PENNEY INSURANCE COMPANY, Plaintiff and Respondent, v. STATE BOARD OF EQUALIZATION, Defendant and Appellant. Docket No. 53393. Court of Appeals of California, Second District, Division Five. June 29, 1979. *686 COUNSEL George Deukmejian, Attorney General, Ernest P. Goodman, Assistant Attorney General, Philip C. Griffin and Herbert A. Levin, Deputy At...
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94 Cal.App.3d 696 (1979) 156 Cal. Rptr. 268 THE PEOPLE, Plaintiff and Respondent, v. CLIFTON GEORGE KING et al., Defendants and Appellants. Docket No. 31001. Court of Appeals of California, Second District, Division Five. June 18, 1979. *698 COUNSEL Richard H. Levin and Paul Halvonik and Quin Denvir, State Public Defenders, under appointment by the Court of Appeal, Charles M. Sevilla, Chief Assis...
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Opinion Appellant was convicted of a violation of Penal Code section 459 (burglaiy) following a jury trial. There is *717 overwhelming evidence of guilt—appellant was discovered in the process of burglarizing a residence in Bakersfield. He left the scene in his car and was subsequently arrested as a result of the victim noting the license number of the car. Appellant was positively identified...
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95 Cal.App.3d 1 (1979) 156 Cal. Rptr. 805 LOS ANGELES AIRWAYS, INC., Plaintiff and Appellant, v. HUGHES TOOL COMPANY et al., Defendants and Respondents. Docket No. 54947. Court of Appeals of California, Second District, Division Four. July 16, 1979. *3 COUNSEL Murphy, Thornton, Hinerfeld & Cahill, Timothy M. Thornton, Robert E. Hinerfeld and David Elson for Plaintiff and Appellant. Hill, Farrer &...
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95 Cal.App.3d 11 (1979) 156 Cal. Rptr. 815 THE PEOPLE, Plaintiff and Respondent, v. ERNESTO PATINO et al., Defendants and Appellants. Docket No. 32588. Court of Appeals of California, Second District, Division Four. July 16, 1979. *17 COUNSEL Michael W. McIsaac, Thomas Kallay and Patrick M. Thompson, under appointments by the Court of Appeal, for Defendants and Appellants. George Deukmejian, Atto...
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95 Cal. App. 3d 34 (1979) 156 Cal. Rptr. 829 In re MARY D., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MARY D., Defendant and Appellant. Docket No. 18594. Court of Appeals of California, Fourth District, Division One. July 16, 1979. *35 COUNSEL Allen Bloom, under appointment by the Court of Appeal, for Defendant and Appellant. George Deukmejian, Attorne...
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95 Cal. App. 3d 39 (1979) 156 Cal. Rptr. 827 H.K.H. COMPANY, Petitioner, v. THE SUPERIOR COURT OF IMPERIAL COUNTY, Respondent; HOUSING AUTHORITY OF THE CITY OF CALEXICO, Real Party in Interest. Docket No. 18720. Court of Appeals of California, Fourth District, Division One. July 16, 1979. *40 COUNSEL Kranitz, Sarrow & Imerman and Jerome H. Sarrow for Petitioner. No appearance for Respondent. ...
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95 Cal. App. 3d 43 (1979) 156 Cal. Rptr. 841 GRAPHIC PROCESS COMPANY et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; PETER ANDREW NOTARAS, Real Party in Interest. Docket No. 55260. Court of Appeals of California, Second District, Division One. July 17, 1979. *45 COUNSEL Fierstein & Sturman, Harvey Fierstein and Edward C. Broffman for Petitioners. No appearance fo...
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Opinion In this case we hold that a trustee of a testamentary trust having income producing assets must account for all gross income of the trust and not merely for net income. We further hold that as to objecting income beneficiaries of the trust neither the doctrine of res judicata nor the statute of limitations is applicable. Statement of Facts On September 10, 1969, the testator died leaving a...
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I respectfully dissent. In my view, habit evidence standing alone does not constitute substantial evidence to support a criminal conviction. It is too tenuous; no reasonable trier of fact would find a defendant guilty beyond all reasonable doubt solely on the basis of such evidence. The key element of the crime of auto burglary is that the doors of the vehicle be locked at the time of the entry. (...
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Opinion This is an appeal from a judgment of the San Francisco Superior Court setting aside portions of the interlocutory and final judgments of dissolution of the marriage of Helen and Vincent Guardino. Vincent, the petitioner below and respondent here, successfully moved to set aside those portions of the judgments of dissolution which declared that Vincent Paul Guardino III was issue of the ...
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Opinion Defendant appeals from a judgment (commitment to state prison) entered after a jury found him guilty of grand theft of an automobile (Pen. Code, § 487, subd. 3). I Defendant’s first contention is that there is insufficient evidence to support the conviction since there are no facts in the record “. . . to allow an inference . . . that appellant was the one who on January 16, 1978, t...
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Opinion Gerald David Carson was convicted under the Indeterminate Sentence Law of first degree robbery, and is presently a state prison inmate under a sentence imposed for that crime. Complaining that the Community Release Board had fixed his sentence contrary to the state’s new determinate sentence law (Pen. Code, § 1170.2, subd. (a)), he petitions this court for a writ of habeas corpus. In the p...
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95 Cal. App. 3d 129 (1979) 157 Cal. Rptr. 102 CEBU ASSOCIATION OF CALIFORNIA, INC., Plaintiff and Respondent, v. SANTO NINO DE CEBU USA, INC., et al., Defendants and Appellants. Docket No. 40794. Court of Appeals of California, First District, Division Two. July 23, 1979. *131 COUNSEL Stanley W. Blackfield for Defendants and Appellants. Townsend & Townsend, Stephen S. Townsend and Marvin W. M...
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95 Cal. App. 3d 139 (1979) 156 Cal. Rptr. 906 MARVIN TAYLOR, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and MISSION INSURANCE COMPANY, Respondents. Docket No. 42917. Court of Appeals of California, First District, Division Four. July 23, 1979. *141 COUNSEL David M. Taylor for Petitioner. Charles L. Swezey, Philip M. Miyamoto, Thomas J. McBirnie, Gene Lam, Hoge, Fenton, Jones & Appel, ...
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Opinion This is a loss of consortium case where the trial judge reduced plaintiff’s recovery by the proportion of negligence attributable to her spouse, We hold that to be error because: (1) contributory negligence may not be imputed merely on the basis of a marital relationship, and (2) loss of consortium is not a derivative cause of action. Anne is the wife of Mack Leroy Lantis. M...
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*163 Opinion This appeal presents but one issue: whether a nonnegligent licensed employer is subject to discipline because his employee negligently performed a licensed activity. We hold he is. Facts Respondent does business as Camacho Aerial Service and holds an agricultural pest control license. He was hired to spray a lettuce field and was assured no authorized personnel would be in th...
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Opinion In a nonjury trial defendant Solomon Pinsky was found guilty on 9 out of 10 charged counts of grand theft. (Pen. Code, § 487, subd. 1.) Thereafter defendant discharged his attorney and hired a new attorney who moved for a new trial on the ground that defendant received constitutionally ineffective assistance of counsel at his trial. The court granted the motion for new trial on this basis,...
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Opinion Plaintiffs and appellants appeal ■ from an order of dismissal entered after the trial court sustained the demurrer without leave to amend of defendants and respondents Evelle Younger, Attorney General of the State of California, and James R. Rasmussen, Assistant Director of the Identification and Information Branch of the California Department of Justice. 1 The gist of ...
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Opinion Northpoint Homeowners Association seeks a writ of mandate commanding respondent court to vacate its protective order or to require real party in interest Ditz-Crane to provide an undertaking to protect petitioner from being harmed by the protective order. Ditz-Crane contracted to design, construct and maintain townhouses operated and controlled by petitioner. Petitioner sued ...
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95 Cal.App.3d 247 (1979) 158 Cal. Rptr. 847 THE PEOPLE, Plaintiff and Respondent, v. RALPH JOSEPH LARA, Defendant and Appellant. Docket No. 33720. Court of Appeals of California, Second District, Division Two. May 29, 1979. *248 COUNSEL Quin Denver, State Public Defender, under appointment by the Court of Appeal, Charles M. Sevilla, Chief Assistant State Public Defender, and Mary Ellen Baldridge,...
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Opinion Plaintiff, Interinsurance Exchange of the Automobile Club of Southern California, appeals from an adverse judgment rendered in its declaratory relief action against defendants Gabriel Alcivar, Myrna Alcivar, and Olga Samkow. The judgment declares that Myma Alcivar and Olga Samkow “are entitled to uninsured motorist coverage benefits under their insurance policies issued by plainti...
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*272Opinion Defendant, California Unemployment Insurance Appeals Board (hereafter Board),1 appeals from a summary judgment in declaratory relief in favor of plaintiffs, California Hospital Association and South Coast Community Hospital (hereafter CHA). The summary judgment challenged requires that: (1) the Board accept all timely appeals filed by so-called cost-reimbursement employers2 from prior ...
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Opinion Plaintiff, Geraldo Macias Prieto, appeals from a condition in the superior court order granting him, pursuant to Code of Civil Procedure section 473, relief from a default. The condition is that he pay defendant, Esperanza Rivero, $300 in attorney’s fees. The appeal lies. (Code Civ. Proc., § 904.1, subd. (b); 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, pt. I, § 88, p. 4097.) For reasons ...
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95 Cal.App.3d 279 (1979) 157 Cal. Rptr. 32 IRIS NOLIN, Plaintiff and Respondent, v. NATIONAL CONVENIENCE STORES, INC., Defendant and Appellant. Docket No. 54985. Court of Appeals of California, Second District, Division Four. July 24, 1979. *281 COUNSEL Vletas & Greer, Gus Vletas and Barry E. Shanley for Defendant and Appellant. Lerer & Hobart, Roger A. Kander and G. Dana Hobart for Plaintiff and...
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Opinion We are presented with two appeals from two contradictory orders in an arbitration matter. We reverse the orders. CBCO, Inc., as general contractor, entered into a contract with Grani Installations, Inc., to perform work on buildings being constructed for State Farm Mutual. The contract contained an arbitration clause;1 State *293Mutual was not a party to that contract. A disagreement arose...
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Opinion Appellant (defendant in the trial court) Dennis John Regan, appeals from a judgment of conviction following a jury verdict of guilty on two counts of violating Business and Professions Code, section 17500, and one count of violating Business and Professions Code, section 9843. Appellant raises three issues on this appeal. His contentions as to each are as follows: Section 17500 does not im...
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Opinion Rosie Lee Camp, Maryann Mueller, and Stella Cheney brought this action for declaratory and injunctive relief individually and on behalf of their children, challenging regulations promulgated in October 1971 by the Department of Social Welfare (hereinafter Department). 1 Plaintiffs also sue as representatives of a class consisting of all recipients of aid to families wit...
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Opinion Appellants William Dickson Heyenga and Raymond Pulsipher, police officers for respondent, City of San Diego, appeal an order denying a preliminary injunction which would have prevented their transfer from the northern to the central division of the police department. They alleged the transfer constituted a violation of their freedom of association rights guaranteed by the First Am...
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*763 Opinion California Insurance Guarantee Association (CIGA) filed a complaint for declaratory relief against various defendants, including the present appellants—Dr. Leon Trunk and his professional corporation. Triangle Medical Group, Inc. Dr. Trunk and his corporation filed an answer and a cross-complaint against CIGA’s demurrer to the other causes of action. This appeal is against Orr on...
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Opinion By a first amended complaint, plaintiff Grace E. Reeves sought declaratory relief concerning the constitutionality of Burbank Ordinance No. 2354. Named as defendant was the City of Burbank, a municipal corporation. Trial was by the court. The litigation arose because plaintiff Reeves owned two parcels of real property in Burbank, one on Angelino Avenue and one on Alameda Aven...
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Opinion Respondent, plaintiff below, filed a complaint in Monterey County Superior Court on October 13, 1977, serving appellant-defendant through its agent for service of process, C. T. Systems Corporation, on October 20, 1977. On November 4, appellant’s liability insurance carrier discussed the case with respondent’s attorney and requested an extension of time in which to plead. A 26-day exten...
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*803 Opinion The People appeal from an order of the superior court granting a writ of habeas corpus upon a determination that “the prospective limitation of good time and participation credits in the Determinate Sentencing Act is an invalid denial of equal protection as to petitioner,” Stinnette. At pertinent times, Don Roberto Stinnette has been confined to state prison under a sentence im...
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Opinion Appellant is the mother of Jacqueline H., a minor born on March 3, 1968. She appeals from a judgment of the superior court entered in June 1976 terminating her parental rights to the minor. 1 The grounds on which the superior court acted are those described in Civil Code sections 232, subdivisions (a)(1) and (a)(7). On appeal the mother raises three main issues: (1) the trial court ...
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Opinion This is an appeal from an order denying defendants leave to file a cross-complaint to name new parties to an action. The proposed cross-complaint asserts theories of proportionate equitable indemnity pursuant to American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578 [146 CaI.Rptr. 182, 578 P.2d 899], While the case at *820 bar potential...
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Opinion The Appellate Department of the Los Angeles Superior Court reversed the judgments in four consolidated municipal court actions for lack of subject-matter jurisdiction, in that the amount of damages demanded in the complaints potentially exceeded the $5,000 jurisdictional limit of the municipal court (Code Civ. Proc.. § 86). Under rule 62 [Cal. Rules of Court] we transferred these causes...
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Opinion Rodney Lee Blessing was convicted pursuant to a negotiated plea of five counts of robbery (Pen. Code, § 211, counts I, V, IX, X, and XII) and two counts of assault with a deadly weapon upon a police officer (Pen. Code, § 245, subd. (b); counts III and VI). He also admitted having used a firearm in the commission of each of these offenses (Pen. Code, § 12022.5). 1 He was sentenced purs...
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Opinion Defendant, Walter Cole, was charged by information with one count of assault with intent to commit murder (Pen. Code, § 217), enhanced by a firearm use allegation (Pen. Code, §§ 1203.06, 12022.5) and a great bodily injury charge (Pen. Code, § 12022.7); and with one count of possession of a concealable firearm by a felon (Pen. Code, § 12021). Five prior felony convictions were alleged; d...
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Opinion Nature of Case: This appeal involves class actions challenging the validity of various charge account practices by several retail department stores and by Union Oil Company of California (Union) and Mobil Oil Corporation (Mobil). The cases against the department stores 1 and against the oil companies *871 were consolidated for the purpose of...
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Opinion This appeal is from a judgment of guilty entered November 5, 1976, and is predicated upon a plea of guilty theretofore *889 made on July 20, 1976, to a violation of Health and Safety Code section 11352, subdivision (a)—sale of heroin (a felony). No motion for a dismissal thereof having been made, we treat the untimely appeal submitted on briefs filed in this cour...
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Opinion This appeal follows a judgment dismissing plaintiff’s personal injury action entered upon an order granting defendant’s motion for nonsuit. Plaintiff sustained injury when he dove into the American River from a low level bridge located a short distance downstream from the public bridge crossing at Sunrise Boulevard in Sacramento County. As a result of the dive, plaintiff suffers partial p...
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*909 Opinion Plaintiff Stephen W. Kelly appeals from a judgment of the Sacramento County Superior Court denying his petition for a peremptory writ of mandate ordering his reinstatement to the position of criminalist I with the California Department of Justice. Plaintiff contends that the imposition of discipline against him violated his right to freedom of association and his right to privacy...
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Opinion Appellant Department of Motor Vehicles revoked respondent’s automobile dismantler’s license for various violations of the Vehicle Code regulating the activities of automobile dismantlers. (Veh. Code, §§ 11500-11520.) After the revocation of his license, respondent petitioned for a writ of mandamus requesting that the Department of Motor Vehicles be ordered to set aside its decision. The...
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Opinion After defendant’s unsuccessful motion to suppress evidence, a jury found him guilty of one count of first degree robbery (Pen. Code, § 211) and one count of kidnaping for the purpose of robbery *930 (Pen. Code, § 209). The jury also found that defendant had been armed with a firearm during the commission of the robbery within the meaning of Penal Code sections 12022.5 and 1203.06, sub...
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Opinion After a jury trial arising from an automobile collision, a unanimous verdict was returned for Douglas Leavitt and Howard Peterson (defendants). The trial court, on its own motion, then granted judgment notwithstanding the verdict (j.n.o.v.) for Steven Sturgeon (plaintiff) awarding him $500 in damages. Plaintiff appeals from that judgment only, and we 1 *960 I Plaintiff, while a ...
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Opinion Plaintiff, E. Alan Stark, appeals from a summary judgment in favor of the defendant, Weeks Real Estate, a corporation (owner) in this action for damages for personal injuries. The essential *967 facts are not in dispute, (1a) The sole issue is whether the plaintiff, an employee of an independent contractor, can maintain this suit against the owner under the “peculiar ...
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Opinion Petitioner County of Fresno requests this court to invoke its original jurisdiction to issue a writ of mandate to compel respondent James B. Malmstrom, the Fresno County Treasurer and Tax Collector, to serve notice of assessment and collect such assessments from property owners in a special assessment district pursuant to Streets and Highways Code sections 10404 and 10603. Th...
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Opinion The issue before us on this petition for a writ of mandate and/or prohibition is whether a judge against whom a challenge under Code of Civil Procedure section 170.6 1 has been filed in a particular case is disqualified from thereafter setting and conducting a settlement conference in that case. We hold that the trial court is not so disqualified. *989 The facts are not in dispute...
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Opinion Plaintiff Simmons sued Wexler for personal injuries. Plaintiff was driving to work at 7:42 a.m. on his Honda motorcycle. He did not have his headlamps on. It was a sunny day, and the motorcycle brakes were in good condition, the weather was clear, and there was no other traffic on the two streets involved. Debra Harris, a disinterested witness, was driving home in her van whe...
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Opinion In 1974, in case No. 40965, the wife secured a decree of separate maintenance. That decree contained the following provision here material: “13. The family home located at 16307 Germain Street, Granada Hills, California, is found to be community property, but the record title stands in the name of the parties as joint tenants. The property hereafter shall remain as a joint tenancy of the p...
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Opinion Defendant was charged in an information with violation of section 261, subdivision 2 and section 261, subdivision 3 of the Penal Code, rape, and violation of section 288a, subdivision (c), forcible oral copulation. Prior to trial, the People’s motion to amend the information was granted, to allege a violation of Penal Code section 12022.7, the infliction of great bodily injury during th...
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Opinion Imperial Irrigation District (District) filed this action against Chubb/Pacific Indemnity Group (Pacific) to recover damages it was obliged to pay the heirs of Pedro L. Leal under an order of the Workers’ Compensation Appeals Board (Board) for compensation awarded for “serious and willful misconduct.” The trial court found for the District and entered judgment for $9,333.39. Pacific appeal...
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95 Cal.App.3d 322 (1979) 157 Cal. Rptr. 133 BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY AND COLLEGES, Plaintiff and Appellant, v. THE MUNICIPAL COURT FOR THE SAN LUIS OBISPO JUDICIAL DISTRICT OF SAN LUIS OBISPO COUNTY, Defendant and Respondent. Docket No. 4514. Court of Appeals of California, Fifth District. July 24, 1979. *323 COUNSEL George Deukmejian, Attorney General, and Thomas Sche...
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Opinion Petitioner, City of California City (hereinafter the City) has sought to have a decision of a Workers’ Compensation Appeals Board (hereinafter the Board) vacated. The Board denied City’s petition for reconsideration of an award of benefits under Labor Code section 4850 to respondent Bobby Finklea (hereinafter respondent). Petitioner contends the award of benefits under section 485...
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Opinion In April 1973 plaintiff William M. Cavers was injured while riding on a motorized golf cart at the Oakridge Golf Club in San Jose. Cavers instituted the present tort action claiming that the manufacturer and the lessor should be held accountable under strict products liability because of their failure to give warning of the golf cart’s propensity to tip over while turning. The pri...
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*354 Opinion The Facts The defendant, Edward Johnson, was charged with the murder of Charles Ramon Johnson at Seaside, California, on or about October 18, 1977, and with assault with intent to commit murder on Jack Fisher on the same date. Pursuant to a negotiated plea, defendant pled guilty to count I of the amended information, a violation of section 187 of the Penal Code, 1 stipula...
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Opinion On April 17, 1975, the Controller of the State of California (hereinafter Cory) instituted this action against Golden State Bank (hereinafter the Bank), seeking to recover certain funds held by the Bank as the result of money orders remaining uncashed for more than seven years. The first of Cory’s seven causes of action was based on the Unclaimed Property Law (Code Civ. Proc., § 1...
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95 Cal.App.3d 370 (1979) 157 Cal. Rptr. 46 Estate of EDWARD DOLSON GEBERT, Deceased. JOSEPH W. GEBERT et al., Plaintiffs and Respondents, v. ROSEMARY M. GEBERT, Defendant and Appellant. Docket No. 54446. Court of Appeals of California, Second District, Division Four. July 25, 1979. *372 COUNSEL Gerald H.B. Kane, Jr., for Defendant and Appellant. Frederic S. Brown and Robert M. Kehn for Plaintiffs...
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95 Cal.App.3d 380 (1979) 157 Cal. Rptr. 157 THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF HUMBOLDT COUNTY, Respondent; JOHN D., a Minor, Real Party in Interest. Docket No. 46113. Court of Appeals of California, First District, Division One. July 26, 1979. *383 COUNSEL George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Atto...
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95 Cal.App.3d 397 (1979) 157 Cal. Rptr. 154 THE PEOPLE, Plaintiff and Appellant, v. JURLINE JACKSON, Defendant and Respondent. Docket No. 18838. Court of Appeals of California, First District, Division One. July 26, 1979. *398 COUNSEL Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, W. Eric Collins and Nathan D....
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Opinion Defendant Eddy Jones’ appeal is from a superior court misdemeanor judgment of conviction, based upon his plea of guilty to violating Penal Code section 12020, subdivision (a), in that he carried upon his person a concealed “dirk or dagger.” The only proper issue concerns the superior court’s denial of his Penal Code section 1538.5 motion to suppress evidence of the subject weapon. Evidence...
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*415 Opinion Defendant and appellant William Hayton appeals from a judgment entered after he pleaded guilty. Appellant contends on appeal that (1) the delay in filing the complaint denied him due process of law and the delay in his arrest denied him his right to speedy trial; and (2) he was not brought to trial within the time specified in Penal Code section 1382. We have determined that thes...
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95 Cal.App.3d 420 (1979) 157 Cal. Rptr. 238 THE PEOPLE, Plaintiff and Respondent, v. DONALD LEE KNOX, Defendant and Appellant. Docket No. 17858. Court of Appeals of California, First District, Division Three. July 2, 1979. *423 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Mark L. Christiansen and Richard G. Fathy, Deputy State Public Defenders, for Defenda...
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Opinion The facts in this matter are not in dispute. They are that appellant was employed by respondent Los Angeles City Unified School District (the District) from 1971 as an hourly rate adult education school teacher at an average of 25 hours per week. Since 1950, respondent, the Los Angeles City Board of Education (the Board) has operated under its resolution whereby a “full-time assignment”...
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*445 Opinion Plaintiffs Thomas C. Lindholm and Edward Dale Griffin sought damages as provided in Penal Code section 637.2 1 from defendants City of Simi Valley, Gerald Thomas Galvin and Carl Morrow. Thereafter, pursuant to stipulation, defendant city was dismissed from the action without prejudice. Defendants Galvin and Morrow answered the complaint after their demurre...
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Opinion Defendants Alfonso Magana and Abel Magana appeal from their convictions of the crimes of possession of narcotics for purposes of sale. Defendant Abel was convicted of the offense of possession of heroin for sale in violation of Health and Safety Code section 11351, subdivision (a). Defendant Alfonso was convicted of the offense of possession of cocaine for sale in violation of Hea...
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95 Cal.App.3d 471 (1979) 157 Cal. Rptr. 184 PARDEE CONSTRUCTION COMPANY, Plaintiff and Respondent, v. CALIFORNIA COASTAL COMMISSION, Defendant and Appellant. Docket No. 18209. Court of Appeals of California, Fourth District, Division One. July 26, 1979. *473 COUNSEL Evelle J. Younger, Attorney General, R.H. Connett, Assistant Attorney General, and Anthony M. Summers, Deputy Attorney General, for ...
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95 Cal. App. 3d 483 (1979) 157 Cal. Rptr. 56 In re the Marriage of DOLORES and REYNALDO SANABIA. DOLORES SANABIA, Appellant, v. REYNALDO SANABIA, Respondent. Docket No. 18528. Court of Appeals of California, Fourth District, Division One. July 26, 1979. *484 COUNSEL Linda M. Cabulong, Steven Hartwell and Charles Wolfinger for Appellant. No appearance for Respondent. *485 OPINION BUTTERMORE, J.[*]...
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Opinion Defendant Washington’s appeal is from a judgment of conviction, based upon a jury’s verdict, on a charge of selling heroin in violation of Health and Safety Code section 11352. He contends: “Because the appellant was willing to stipulate that he knew the narcotic nature of heroin, it was error for the trial court to admit evidence of other narcotics activity.” At the trial’s commenc...
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Opinion Plaintiff, Sierra Club, Inc., appeals from an adverse judgment in favor of William Moores, doing business as Moores *498 Associates (Moores), the California Coastal Commission (Commission) and the North Coast Regional Commission (regional commission). The primary issue presented is whether the developer of a real estate project is an indispensable party to an action brought by a third...
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Opinion The California Department of Corrections and Jero J. Enomoto, its director, appeal from a declaratory judgment which states that they have violated specified constitutional and statutory provisions “by discriminating by reason of sex and by reason of ethnic background in hiring and promotion of employees” in the department. The judgment also orders, and the court issued, a “Permanent In...
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Opinion After a jury trial, 17-year-old Victor Arthur Alfieri, Jr., was convicted in the adult court of second degree murder and placed in the custody of the Youth Authority. In this appeal, he contends: (1) trial court action receiving in evidence his admissions and confession impels reversal because of application of an improper standard by the court in determining the facts preliminary to admis...
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Opinion The National Broadcasting Company, Inc. (NBC) sought a writ of mandate in the Superior Court of Los Angeles County to require the California Unemployment Insurance Appeals Board (the Board) to vacate a decision awarding unemployment insurance benefits to certain of NBC’s California-based employees. The superior court denied relief. NBC appeals. We reverse. March 31, 1976, was the expiratio...
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95 Cal.App.3d 568 (1979) 157 Cal. Rptr. 285 CRAIG S., a Minor, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. 56306. Court of Appeals of California, Second District, Division Three. July 30, 1979. *570 COUNSEL Wilbur F. Littlefield, Public Defender, Dennis A. Fischer, Kenneth I. Clayman, Bruce A. Hoffman, D. Heather Werthmuller ...
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Opinion By a second amended information, defendant 1 was charged in count I with having committed the offense of murder on August 29, 1977, in violation of Penal Code section 187. The victim of the alleged murder was Vernita Curtis. In count III 2 defendant was charged with committing the offense of burglary on August 29, 1977, in violation of Penal Code section 459. It was alleged that def...
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*596Opinion The Los Angeles County Department of Public Social Services (DPSS) appeals the dismissal of its petition in a dependency proceeding. On February 10, 1978, the DPSS filed a dependency petition in juvenile court alleging that the minor, La Shonda B., was a person described by Welfare and Institutions Code section 300, subdivisions (a) and (d).1 The factual basis of the petition is not in...
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95 Cal. App. 3d 603 (1979) 157 Cal. Rptr. 272 JOSEPH A. RIPANI, Plaintiff and Respondent, v. LIBERTY LOAN CORPORATION OF SAN JOSE et al., Defendants and Appellants. Docket No. 17791. Court of Appeals of California, Third District. July 30, 1979. *607 COUNSEL Davis & Sauer and Douglas A. Holloway for Defendants and Appellants. Russell, Jarvis, Estabrook & Dashiell and Laurence B. Dashiell ...
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Opinion Plaintiffs appeal the adverse summary judgment on plaintiffs’ action seeking to impose liability for wrongful death on defendant Firestone Tire & Rubber Company (Firestone), on the ground of a defective tire. Plaintiffs Judy Wiler and Wendy June Wiler filed an action seeking to recover damages for the alleged wrongful death of Gary Wiler, their husband and father, respectively. Gary was k...
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Opinion Plaintiff Mickelson Concrete Company (Mickelson) appeals from a judgment (order denying petition for writ of mandate) entered after the superior court, exercising its independent judgment, determined the evidence supported the finding of the Contractors’ State License Board that Mickelson violated sections 7109 and 7113 of the Business and Professions Code. In November 1974, Michael G...
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*638 Opinion Lyla Jean Snyder appeals the order dismissing her complaint after the court sustained Stanley Gene Snyder’s demurrer without leave to amend on the basis of res judicata, resting its decision on Kelley v. Kelley (1977) 73 Cal.App.3d 672 [141 Cal.Rptr. 33], The couple were married in 1950, legally separated in 1972, and a final judgment of dissolution of marriage was entered ...
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Opinion Plaintiff (Perkins), a cobeneficiary of a purchase money trust deed covering certain property in Riverside County, instituted nonjudicial foreclosure proceedings and purchased the property through an agent at the foreclosure sale. The agent brought a quiet title action in which Roger Janetzky intervened attacking the validity of the foreclosure sale and claiming an interest in the propert...
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Opinion In this petition for a writ of mandate, International Harvester Company (International) seeks to overturn a trial court ruling denying its motion to dismiss or abate for inconvenience of forum a cross-complaint filed by Sears, Roebuck & Company (Sears) to enforce American Motorcycle Association equitable indemnity against International. We conclude that the California s...
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95 Cal. App. 3d 664 (1979) 157 Cal. Rptr. 212 RICHARD MORGAN, Plaintiff and Appellant, v. KARL K. RANSOM, Defendant and Respondent. RICHARD MORGAN, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent. Docket Nos. 55124, 53562. Court of Appeals of California, Second District, Division Four. July 31, 1979. *666 COUNSEL Richard Morgan, in pro. per., per for Plaintiff and Appellant an...
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Opinion By jury trial appellant was found to have committed robbery and to have been sane at the time of the commission of the offense. (Pen. Code, §§ 211, 1026.) He was sentenced to state prison. At about 11 a.m. on April 15, 1977, appellant, dressed in a topcoat, top hat, and heavy glasses, entered the La Cumbre Plaza branch of the Security Pacific National Bank in Santa Barbara. He approached t...
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95 Cal. App. 3d 688 (1979) 157 Cal. Rptr. 223 THE PEOPLE, Plaintiff and Respondent, v. GARY ARLON EADES, Defendant and Appellant. Docket No. 9829. Court of Appeals of California, Third District. July 31, 1979. *689 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Ezra Hendon, Chief Assistant State Public Defender, Richard E. Shapiro, Laurance S. Smith and Mark...
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Opinion Defendant appeals from his conviction of a violation of section 11377 of the Health and Safety Code (possession of controlled substance, PCP), after a jury trial. The defendant, driving alone in his automobile, was stopped by two police officers because the registration tag on his vehicle was not current. The defendant stepped out of his vehicle, came to the officers, and showed them his o...
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95 Cal. App. 3d 707 (1979) 157 Cal. Rptr. 330 THE PEOPLE, Plaintiff and Appellant, v. ROBERT DARBY, Defendant and Respondent. Docket No. 11195. Court of Appeals of California, Fourth District, Division One. July 31, 1979. *708 COUNSEL Edwin L. Miller, Jr., District Attorney, William J. Howatt, Jr., and Anthony Lovett, Deputy District Attorneys, for Plaintiff and Appellant. Michael W. Brennan and ...
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Opinion RINGER, J. * For reasons to be explained later on, we open this opinion by sketching the case for the defense. On March 13, 1974, a paroled federal prisoner named George Patrick McKinney came by car in violation of his parole from Springfield, Illinois to the King’s Square Apartments in Garland, a small town surrounded by *718 Dallas, Texas. Using his own name, but representing ...
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Opinion Plaintifis Donna M. Farquar and Sandra J. Bradshaw filed separate petitions in the superior court for writ of mandate to compel the Board of Education of the Santee School District (Board) to grant paid sick leave for the periods while each was on a voluntary unpaid maternity leave. The Board filed its answers to the petitions. The *763actions were consolidated and after hearing, the court...
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Opinion After a jurisdictional hearing, the juvenile court referee found 17-year-old Robert D. came within the provisions of Welfare and Institutions Code section 602 in that he had unlawfully driven another person’s vehicle in violation of Vehicle Code section 10851. He ordered the minor removed from his home (Welf. & Inst. Code, § 726, subd. (b)). Thereafter the court committed Robert t...
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95 Cal.App.3d 779 (1979) 157 Cal. Rptr. 252 DONA L. SANDERS, Individually and as Special Administratrix, etc., Plaintiff and Appellant, v. CEG CORPORATION, Defendant and Respondent. Docket No. 18295. Court of Appeals of California, Fourth District, Division One. July 23, 1979. *782 COUNSEL Roden & White and Henry James Ahler for Plaintiff and Appellant. Stephen R. Mulligan and Jerry M. Leahy ...
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95 Cal. App. 3d 792 (1979) 157 Cal. Rptr. 226 IMPAC IMPORTED PARTS & ACCESSORIES CORPORATION, Plaintiff and Respondent, v. RICHARD RATTRAY, Defendant and Appellant. Docket No. 20497. Court of Appeals of California, Fourth District, Division Two. August 1, 1979. *794 COUNSEL Rhodes, Kendall & Harrington and Howard M. Bidna for Defendant and Appellant. Blatt & Rosoff, Boyd Lemon and Ron...
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Opinion This proceeding in mandamus arises out of a discovery order in an action against an insurance carrier, Glacier General Assurance Company (Glacier). The underlying action is based on a claim of “bad faith” failure to settle a medical malpractice claim within the policy limits. The trial court issued an order requiring production of the entire litigation file of the attorney wh...
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95 Cal. App. 3d 844 (1979) 157 Cal. Rptr. 348 THE PEOPLE, Plaintiff and Respondent, v. LEONARD COOPER, Defendant and Appellant. Docket No. 32874. Court of Appeals of California, Second District, Division Five. August 6, 1979. *848 COUNSEL Nasatir, Sherman & Hirsch and Paul L. Gabbert for Defendant and Appellant. George Deukmejian, Attorney General, Jack R. Winkler and Robert H. Philibosian, C...
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95 Cal.App.3d 856 (1979) 157 Cal. Rptr. 355 JAMES H. HUSTON, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, COAST ROCK et al., Respondents. Docket No. 53790. Court of Appeals of California, Second District, Division Three. August 7, 1979. *859 COUNSEL Ghitterman, Schweitzer & Herreras and William A. Herreras for Petitioner. Zonni, Ginocchio & Taylor, Clair S. Huffman and William B. D...
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*888 Opinion This appeal involves the financial detritus from an accident on July 8, 1972, in El Paso, Texas in which a new Ford station wagon was involved. The original complaint for personal injuries and wrongful death, filed in 1973, named as defendants Ford Motor Company (Ford), Harbor City Discount Auto Center (Harbor), Firestone Tire and Rubber Company (Firestone), as well ...
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95 Cal.App.3d 895 (1979) 157 Cal. Rptr. 364 THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY LEE HURLEY, Defendant and Appellant. Docket No. 3482. Court of Appeals of California, Fifth District., August 8, 1979. *897 COUNSEL Quin A. Denvir and Paul Halvonik, State Public Defenders, under appointment by the Court of Appeal, Gary S. Goodpaster, Chief Assistant State Public Defender, Richard E. Shap...
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Opinion Plaintiffs herein were the .defendants in an action for damages for the wrongful repudiation of a joint venture agreement (prior action). On December 4, 1973, judgment in the prior action was entered in favor of the plaintiffs therein (defendants in the present action) for $1,256,845 with prejudgment interest thereon (Civ. Code, § 3288) in the sum of $395,906.18, plus costs of $5,...
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Opinion By jury trial appellant was convicted on three counts of robbery committed August 19, 1977. (Pen. Code, § 211.) As to each count it was found that he was armed with a firearm within the meaning of Penal Code section 12022. He was sentenced to state prison. Appellant and another man committed the robberies in the office of a motel in Pasadena around 12:30 a.m. on August 19, 1977. The v...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 928 OPINION This appeal follows a conviction of voluntary manslaughter (a violation of Pen. Code, § 192). The claimed error is prosecutorial misconduct. *Page 929 Defendant was charged with murder (a violation of Pen. Code, §187). Trial was by jury and the ve...
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Opinion The Workers’ Compensation Appeals Board (the Board) in an order denying reconsideration, affirmed a temporary disability rate for an injured employee which was adjusted to reflect postinjury salary increases provided under a collective bargaining agreement between Thrifty Drug Stores, Inc. (Thrifty) and the Retail Clerks’ Labor Union (Union) of which the injured worker was a member. We ...
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Opinion A jury found defendant guilty of four counts of first degree murder (Pen. Code, § 189) and one count of arson (Pen. Code, § 447a). She was sentenced to state prison for life terms on the murder counts and the middle term of four years on the arson count. Service of the latter term was stayed pursuant to Penal Code section 654 and defendant received credit for 355 days of the time alread...
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Opinion By writ of review petitioner Butte View Farms asks us to vacate and set aside a supplemental decision and order of the respondent Agricultural Labor Relations Board of the State of California. The supplemental decision and order set the amount of back pay and consequential damages due from petitioner to certain employees found to have been wrongfully discharged in an earlier board...
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95 Cal. App. 3d 972 (1979) 157 Cal. Rptr. 578 THE PEOPLE, Plaintiff and Respondent, v. STEPHEN MICHAEL FIELDS, Defendant and Appellant. Docket No. 17558. Court of Appeals of California, First District, Division Three. August 15, 1979. *974 COUNSEL Michael Stepanian for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O'Brie...
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Opinion Defendant Wall was convicted upon a jury’s verdicts of rape by force and violence in violation of Penal Code section 261, subdivision 2, and of false imprisonment (Pen. Code, § 236), a lesser offense necessarily included in the crime of kidnaping (Pen. Code, § 207) charged in the information. He appeals from a judgment under which he was sentenced to state prison. We state Wall’s appe...
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Opinion Codefendants appeal from separate judgments 1 of conviction entered on identical jury verdicts finding each guilty of attempted murder in the first degree (Pen. Code, §§ 664 and 187); *996 kidnaping to commit robbery (Pen. Code, § 209) with bodily harm; and robbery in the first degree (Pen. Code, § 211) with intentional infliction of bodily injury. Each contends that the evidence is...
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Opinion A jury found appellant James Ronald Neely, Jr., guilty of the murder (Pen. Code, § 187) and robbery (id., § 211) of Napoleon Bowen. He appeals from the judgment of conviction. *1015 Appellant and Stephen Jones were jointly charged with the two crimes in a single information, but appellant was tried separately. Shortly before the commencement of his trial, he moved for an order exc...
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Opinion Jo Ann Gerkin through her guardian ad litem, Elza Gerkin, appeals from a summary judgment in her action against Santa Clara Valley Water District and other defendants for personal injuries. Appellant suffered personal injuries when she fell from a bridge located at Little Llagas Creek in the City of Morgan Hill. Respondents were alleged to have “operated, maintained, controlled, inspe...
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Opinion Defendant and cross-complainant Chew (hereinafter defendant) appeals from a judgment in plaintiff’s favor on the complaint and cross-complaint. Plaintiff sued in a two-count first amended complaint sounding in negligence and conversion and relating to gold delivered to defendant for heat treating. Defendant answered and filed a cross-complaint which plaintiff answered. The action was filed...
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Opinion Defendant, tenant, appeals from a judgment in an unlawful detainer action. The only issue on appeal is whether or not the trial court erred in assessing costs. The plaintiff sought to obtain possession of the leased premises based upon the defendant’s failure to pay rent. At the trial the defendant prevailed in her affirmative defense based upon breach of warranty of habitability (Civ. Co...
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96 Cal.App.3d 1 (1979) 157 Cal. Rptr. 749 THE PEOPLE, Plaintiff and Respondent, v. MOBILE MAGIC SALES, INC., et al., Defendants and Appellants. Docket No. 18350. Court of Appeals of California, Fourth District, Division One. August 20, 1979. *4 COUNSEL de Krassel, Tierney & Cohen and Timothy T. Tierney for Defendants and Appellants. *5 Edwin L. Miller, Jr., District Attorney, Peter C. Lehman,...
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Opinion This is an appeal from a municipal court conviction based upon a plea of guilty entered by Ruben G. Torres to a charge of indecent exposure (Pen. Code, § 314, subd. 1). Having granted certification from a decision of the appellate department of the superior court which reverses the judgment, we consider one narrow issue: the extent to which the docket entries of the municipal court accepti...
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Opinion In an unlawful detainer action Elana Casey suffered a default judgment against her in the amount of $4,533.40. The judgment creditor, pursuant to a writ of execution, seized her automobile worth $2,320. Her claim for exemption under Code of Civil Procedure section 690.4 was denied. She appeals. We reverse. The creditor has filed no respondent’s brief, hence, we accept as true the fact...
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Opinion Plaintiff husband appeals that portion of interlocutory judgment of dissolution of marriage which found certain real and personal property to be the separate property of defendant wife. Husband and wife were married in 1943 and separated in 1974 after 31 years of marriage. Husband was a bus driver throughout the marriage; wife was a licensed real estate broker for approximately 15 yea...
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Opinion The decedent, Wendell Edward Biltoft, had a Federal Employees’ Group Life Insurance (FEGLI) policy. This appeal involves a contest between the wife and the daughter of the decedent over the proceeds of the FEGLI policy. Facts During the marriage of the decedent and the wife, the decedent was employed by the federal government. The decedent therefore became eligible for c...
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Opinion The Pilattis were married in July 1966 and separated in December 1974. During part of that period Mr. Pilatti accumulated credits in the pension plan of the Operating Engineers Pension Trust (Trust). The Trust is regulated by the Employee Retirement Income Security Act of 1974 (ERISA). Under the provisions of the plan, benefit payments may be made only to “participants” or, on dea...
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*71 Opinion Dessert Seed Company, Inc. (Dessert) an agricultural employer subject to the Agricultural Labor Relations Act (ALRA), petitioned the superior court for a writ of mandate (Code Civ. Proc., §§ 1084-1086) to set aside a decision of the Agricultural Labor Relations Board (ALRB) which dismissed without a hearing Dessert’s objections to the conduct of a representation election resulting...
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Opinion Appellant Gloria Pena was charged with making a false report of a criminal offense to a police officer (Pen. Code, § 148.5) by a complaint filed in Tulare County Municipal Court on June 12, 1978. Appellant moved to dismiss the complaint on the grounds of discriminatory prosecution alleging the complaint was filed solely because she had filed a grievance with the chief of police charging...
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Opinion Plaintiff San Diego White Truck Company appeals from the order denying its application for issuance of a writ of execution on a dwelling house. (Code Civ. Proc., § 690.31, subd. (m).) At issue is whether the dwelling house exemption, former Code of Civil Procedure section 690.235, effective July 1, 1975, now Code of Civil Procedure section 690.31, applies to a contractual obligati...
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Opinion Frank and Virginia Cavallaro, husband and wife, and their two children, Lisa, eleven years old, and Eric, eight years old, were *98 residents of Las Vegas, Nevada. On the weekend of September 19, 1970, Mrs. Cavallaro decided to visit her parents in Irvine, California, while her husband, a physician, was on call at the hospital. On September 21, at about 4 a.m. as Mrs....
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Opinion Plaintiff sued the County of Orange and the State of California for personal injuries sustained at the hands of an alleged outpatient of the county mental health center. The trial court sustained defendants’ demurrer to the complaint without leave to amend on the *114 ground of a statutory governmental immunity. Plaintiff appeals from the ensuing judgment of dismissal...
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Opinion On appeal by both parties from a judgment of dissolution of marriage, we examine the nature of certain federal civil service disability and survivorship benefits. For the reasons we explain, we conclude that only the benefits payable to the disabled employee spouse upon becoming eligible for deferred retirement benefits constitute community property. We reverse and remand. Facts The fact...
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Opinion A jury found defendant Dwayne Paul Kent guilty: (count 1) of pimping (Pen. Code, § 266h) in the commission of which he personally and intentionally inflicted “great bodily injury” (Pen. Code, § 12022.7) upon one Betty; (count 2) pandering (Pen. Code, § 266i), i.e., procuring said Betty for the purpose of prostitution, in the commission of which he personally and intentionally inflicted ...
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Opinion In this original habeas corpus proceeding, we examine the narrow issue whether a legislative amendment extending the maximum period of parole may be retroactively applied so as to automatically extend the parole period of those inmates previously released on parole. Petitioner had been imprisoned under an indeterminate sentence of five years to life upon his conviction of fir...
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Opinion Appellant Richard C. West, while employed by respondent city as a police officer, received a notice of termination from respondent Taylor, the City Manager of the City of Berkeley, notifying him he was terminated as a police officer effective December 2, 1975. This notice set forth specifically the charges, consisting of refusals to obey lawful orders of superior officers (a violation of ...
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*151 Opinion Plaintiffs Michael Del Roulston, a minor, by and through his guardian ad litem Carol A. Roulston, and Carol A. Roulston individually (appellants) appeal from a judgment entered upon a jury verdict denying them recovery in an action against defendants Pacific Telephone & Telegraph Company, a corporation, and Robert Lee Williams (respondents), for personal injuries sus...
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Opinion Lion Oil Company appeals from the judgment of the Santa Clara County Superior Court, sitting without jury, in favor of respondent Louise Marie Garbarino in the amount of $1,536.16, as and for wages. The uncontested facts reveal that on April 1, 1976, appellant Lion Oil Company (Lion) commenced marketing motor fuels and oils and sundry items through self-serve retail stations, includin...
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Opinion The principal issue presented on this appeal is whether the rule of Wilkinson v. Workers’ Comp. Appeals Bd. (1977) 19 Cal.3d 491 [138 Cal.Rptr. 696, 564 P.2d 848], is applicable even though the successive injuries were not sustained by applicant while in the employ of the same employer. We hold that the rule is applicable. In Wilkinson, the Supreme Court held that in the absence...
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Opinion In an action for malicious prosecution and false arrest, plaintiff appeals from a summary judgment in favor of three of the five named defendants. Defendant Jim Skaggs was arrested for a misdemeanor drug offense. He agreed to cooperate with the police in exchange for assistance with the pending charge. Skaggs told defendant Jimmie Steele, a police officer employed by the City of Coron...
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Opinion The central issue in this original proceeding is whether the California statutes dealing with false and misleading advertising (Bus. & Prof. Code, § 17500 et seq.) and unfair competition (Bus. & Prof. Code, § 17200 et seq.) are violative of the First Amendment protection accorded to commercial speech. 1 *185 The district attorney brought an action in the name...
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96 Cal.App.3d 200 (1979) 157 Cal. Rptr. 756 ALVIN G. STAHMER et al., Plaintiffs and Appellants, v. STANLEY J. SCHLEY, as Executor, etc., Defendant and Respondent. Docket No. 55181. Court of Appeals of California, Second District, Division Two. August 22, 1979. *202 COUNSEL Rudolph E. Harper for Plaintiffs and Appellants. No appearance for Defendant and Respondent. OPINION FLEMING, J. Plaintiffs a...
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Opinion In her complaint plaintiff, Jill Chadock, seeks damages for medical malpractice from Lester Cohn, M.D. The gravamen of the action is alleged to be negligence in the care and treatment of a leg and foot injury resulting in permanent disability and disfigurement. 1 The trial commenced before a jury and was terminated by the granting of a motion for nonsuit at the conclusion of plaintiff...
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96 Cal.App.3d 221 (1979) 158 Cal. Rptr. 47 THE PEOPLE, Plaintiff and Respondent, v. MAURICIO MONTANO et al., Defendants and Appellants. Docket No. 34430. Court of Appeals of California, Second District, Division Three. August 23, 1979. *223 COUNSEL Michael W. McIsaac and Michael J. Udovic, under appointments by the Court of Appeal, for Defendants and Appellants. George Deukmejian, Attorney Genera...
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Opinion We granted rehearing in this matter to further consider the issues presented. We are satisfied that our opinion previously filed on April 4, 1979, correctly states the facts and law and hence order it refiled as follows: Defendant appeals his conviction of possession of an allegedly obscene film entitled “Swedish Erotica No. 17” in violation of Penal Code section 311.2. We determine that t...
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Opinion Defendant was charged in a two-count complaint with violating Vehicle Code sections 23102, subdivision (a), driving under the influence of intoxicating liquor, and 14601, subdivision (a), driving with a suspended or revoked license, both offenses occurring on November 3, *Supp. 111977. In addition, each count alleged a prior conviction of the same offense as the charged count, the prior se...
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Opinion Appellant was convicted of misdemeanor drunk driving (Veh. Code, § 23102, subd. (a)). His motion to strike a 1976 prior conviction for the same offense was denied. The court found the 1976 conviction was valid. Appellant then entered a guilty plea to the new offense. He has appealed, challenging the constitutionality of the 1976 prior. The appeal lies. (People v. Allheim (1975) 48 Cal.App....
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Opinion Defendant director, Department of Motor Vehicles (DMV) appeals from judgment granting plaintiff Feather River Trailer Sales, Inc. (Feather River) a peremptory writ of mandate which remanded administrative proceedings to DMV and commanded it to set aside its decision of April 19, 1976, imposing discipline upon Feather River. Disciplinary action had been ordered after an administrat...
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Opinion Plaintiff appeals the dismissal of her second amended complaint after defendants’ demurrers were sustained without leave to amend. For purposes of appeal we treat the allegations in the complaint as true. (Haggerty v. County of Kings (1953) 117 Cal.App.2d 470, 478 [256 P.2d 393].) They show the following. Plaintiff was raped in her car on March 14, 1977, in Biggs, a community in B...
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Opinion Petitioner seeks writ of mandate and/or prohibition to require respondent court to vacate its judgment on the pleadings in favor of the State of California. Petitioner, a defendant in a personal injury action, filed a cross-complaint against the state, a party not named in the original complaint, seeking partial indemnity for the plaintiff’s injuries. The trial court granted the state’s...
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Opinion Appellant was charged by information with a violation of Penal Code section 475a (possession of a completed check with intent to defraud). Thereafter he filed a motion to dismiss for denial of right to speedy trial. A two-day evidentiary hearing was held, at the conclusion of which the motion was denied. Appellant waived his right to trial by jury and submitted the matter on the trans...
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Opinion Insofar as this appeal is concerned the action below was one for unlawful detainer by a sublessor against a sublessee for possession of the premises, forfeiture of the sublease and unpaid rent together with interest and costs. The sublessee appeals, contending that as a matter of law the evidence demonstrates that the sublessor had partially, actually evicted him and that, therefore, no...
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Opinion A Beech Bonanza aircraft crashed on October 16, 1968, near Las Cruces, New Mexico, killing two persons, including the pilot, and severely injuring a third whose legs eventually had to be amputated. The underlying litigation was brought by the families of the two decedents and the survivor of the crash (plaintiffs) against the manufacturer of the Bonanza, Beech Aircraft Corporation...
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Opinion Plaintiff Air Quality Products, Inc. appeals from an order of dismissal with prejudice entered after the trial court sustained the demurrer of defendant State Air Resources Board without leave to amend. Facts On November 1, 1973, Air Quality Products, Inc. (Air Quality) filed a complaint against the State Air Resources Board (Board) and the State of *344 ...
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*356 Opinion Frederick Joseph G., a minor, aged 17 years, was found to be a person coming within the provisions of Welfare and Institutions Code section 602 in that he was guilty of murder in the second degree (Pen. Code, §§ 187, 189). He was committed to the California Youth Authority and appeals. The central theme of appellant’s scenario is that the evidence was insufficient to...
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96 Cal.App.3d 370 (1979) 158 Cal. Rptr. 6 THE PEOPLE, Plaintiff and Respondent, v. BERNARD VINDIOLA, Defendant and Appellant. Docket No. 3166. Court of Appeals of California, Fifth District. August 8, 1979. *374 COUNSEL Paul Halvonik and Quin Denvir, State Public Defenders, under appointment by the Court of Appeal and Gary S. Goodpaster, Chief Assistant State Public Defender, for Defendant and Ap...
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Opinion Petitioner seeks a writ of prohibition to restrain the respondent, the Superior Court of Santa Clara County, from proceeding to trial on two charges stated in the information. The information charges the petitioner and a codefendant, Billy Edward Ratliff, with possession of a sawed-off shotgun (Pen. Code, § 12020), attempted robbery (Pen. Code, §§ 664, 211), and attempted false imprison...
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*405 Opinion May a county ban all rafting and boating on a section of a navigable river highly suited to and much used for such recreational activities? Under the circumstances here presented it may not. The South Fork of the American River in El Dorado County between Chili Bar Dam and Salmon Falls, a distance of about 20 miles, is in question. Because of its location, flow, lack of obstruc...
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Opinion Appellant, Todd W. (hereinafter Todd), 13 years old, admitted the allegations of a petition filed under Welfare and Institutions Code section 602, charging him with a violation of Vehicle Code section 10851 (auto theft). 1 At the October 5, 1978, dispositional hearing, the San Luis Obispo County Superior Court, sitting as a juvenile court, ordered Todd committed to the California Yout...
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Opinion This petition for writ of prohibition or mandamus arises against the following factual background as disclosed in the record.1 In early August 1978, Deputy Till, assigned to a special narcotics unit of the Santa Cruz County Sheriff’s Department, was engaged in a daytime flight over a rural county area in an aircraft jointly owned by a private *424flying club and the sheriff’s office.2 From...
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*433 Opinion This is an appeal from an order of the trial court directing that certain homesteaded property be sold pursuant to Civil Code section 1254. The undisputed facts underlying the case are as follows: In 1967 William and Hildegard O’Halleran (husband and wife) executed and recorded a first deed of trust on their family residence securing a $29,000 indebtedness. In 1969, the O’Halle...
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96 Cal.App.3d 440 (1979) 158 Cal. Rptr. 92 JOYCE CALLAHAN POWERS, Plaintiff and Respondent, v. DAVID H. FOX, as Real Estate Commissioner, etc., Defendant and Appellant. Docket No. 54678. Court of Appeals of California, Second District, Division Four. August 28, 1979. *442 COUNSEL George Deukmejian, Attorney General, Arthur C. de Goede, Assistant Attorney General, and Susan A. Myers, Deputy Attorn...
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Opinion Gurewitz and G.F.S. Insurance Agency, Inc. (GFS) (hereafter collectively Gurewitz)1 appeals from a judgment denying his *463petition for a writ of mandate to compel the Insurance Commissioner to vacate his decision revoking the insurance licenses and licensing rights of Gurewitz for a violation of Insurance Code section 1734. He contends that: 1) there could be no violation of the statute...
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*494 Opinion This is an appeal by intervener, Interchange Tower Property, from a denial of a motion to intervene. Plaintiffs and respondents are Laurence A. Green and Russell H. Green, Jr. Defendants and respondents are “The Community Redevelopment Agency of the City of Los Angeles.” Allan Moline is an interested person. Plaintiffs filed their “Complaint for Invalidation of ...
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Opinion The school board appeals from a judgment granting a writ of mandate directing it to employ a teacher as a full-time teacher to the next vacancy in that position. The teacher has cross-appealed contending: (1) that she is entitled to immediate employment as a full-time teacher; and (2) that the trial court erroneously denied her attorney fees under section 800 of the Government Code. We ...
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Opinion Defendant was charged with (count I) rape with force and violence, in violation of subdivision 1 of section 261 of the Penal Code; (count II) rape on an unconscious victim, in violation of subdivision 4 of section 261; (count III) burglary, in violation of section 459 of the Penal Code; (count IV) robbery, in violation of section 211 of the Penal Code, and (count V) mayhem, in violation...
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96 Cal.App.3d 513 (1979) 158 Cal. Rptr. 123 COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. DAVID WAYNE ESTES, Defendant and Appellant. Docket No. 55257. Court of Appeals of California, Second District, Division Five. August 29, 1979. *514 COUNSEL Joseph E. Baker for Defendant and Appellant. John K. Van de Kamp, District Attorney, Donald J. Kaplan and Sterling S. Suga, Deputy District Attorne...
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96 Cal.App.3d 519 (1979) 157 Cal. Rptr. 823 DOUGLAS CRUM, Plaintiff and Appellant, v. CITY OF STOCKTON, Defendant and Respondent. Docket No. 17754. Court of Appeals of California, Third District. August 29, 1979. *520 COUNSEL Van Dyke, Shaw & Schuckman and Thomas H. Van Dyke for Plaintiff and Appellant. Gerald A. Sperry, City Attorney, Ronald M. Stein and John A. Stonich, Deputy City Attorney...
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Opinion Richard Smith (Smith) sued Scrap Disposal Corporation (Scrap) for negligence. Defendants successfully moved for summary *527 judgment on the grounds that Civil Code section 846 barred recovery. 1 For reasons which we will discuss, we have concluded plaintiff did not enter defendant’s property to fish and, whether he entered for the purpose of vehicular riding presents a triable issu...
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*532 Opinion Husband appeals from the denial of his motion for modification of spousal support by reduction or termination thereof. The trial court heard three motions at the time for hearing below. Modifications upward and downward by wife and husband, respectively, were denied. Husband was found in contempt of court for his wilful nonpayment of spousal support for the entire year of 1978 up...
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96 Cal.App.3d 538 (1979) 158 Cal. Rptr. 145 SAN FRANCISCO FIRE FIGHTERS, LOCAL 798, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFL-CIO, Plaintiff and Appellant, v. BOARD OF SUPERVISORS OF THE CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents. THE PEOPLE EX REL. GEORGE EVANKOVICH, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent. Docket Nos....
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Opinion Petitioner Norman G. Gay contends that all of his psychiatric disability is related to his cumulative trauma injury (see Lab. Code, § 3208.1) and that the Workers’ Compensation Appeals Board (Board) erred in apportioning 50 percent of that permanent disability as nonindustrial. For the reasons stated below, we annul the Board’s finding of apportionment and remand the matter to the Board. I...
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*568 Opinion In a first amended cross-complaint, appellants sought damages for libel and breach of a contract to buy their home. Respondents had agreed to purchase the home through an escrow at Mission Escrow Company, Inc. and to seek a loan commitment from the Veterans Administration. The deal fell through and this litigation followed. The first cause of action for libel se...
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Opinion Hospice of San Luis Obispo County, Inc. (Hospice) appeals from a judgment settling the final account in the estate *574of Emily Zabriskie, deceased, and ordering final distribution. Hospice is the alternate beneficiary under the decedent’s will, which is to take the residue of decedent’s estate in the event the primary beneficiary, Roandoak of God, an unincorporated Christian association,...
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Opinion Petition for writ of mandate (Code Civ. Proc., § 418.10) filed by Michael Philip Jagger seeks to overturn a superior court order denying his motion to quash service for lack of jurisdiction, granting stay to permit the English court to proceed with due diligence and denying motion to dismiss for forum non conveniens petition for legal separation and dissolution filed by real party in in...
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Opinion Defendants appeal from a money judgment rendered against them in an action for conversion of personal property. The defendants originally named in plaintiff’s complaint were J. S. Enterprises, Inc., a corporation, and S. H. Bums. The latter defendant died prior to trial and, substituted in his place was Jean S. Bums and *596 Ralph L.. Bernstein, the executors of the will of S. H. Burn...
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Opinion In these consolidated proceedings, petitioner Robert E. McMillian, an attorney, seeks to annul two orders of the San Diego County Superior Court each adjudging him in direct contempt of court, and each sentencing him to jail for five days and imposing a fine of $500.1 The alleged contempts occurred in open court during the jury trial of a criminal case in which petitioner represented the d...
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Opinion Summary judgment for defendant Allstate Life Insurance Company (Allstate). Alice Searle’s (Searle) husband, Martin, insured his life with Allstate and took his own life 10 months later. The policy limited Allstate’s liability to a refund of paid premiums if the insured “committed suicide, sane or insane,” within two years of the effective date of the policy. Searle sued to recover the...
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Opinion Bernard J. Kilkenny appeals the order denying his request for modification of spousal support of $256 per month paid by him to his former wife, Myrtle Kilkenny. Originally the support obligations were set out in a separation agreement executed in Connecticut in 1967. The agreement terms were characterized as “absolute, unconditional and irrevocable.” This separation agreement was inco...
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96 Cal.App.3d 621 (1979) 158 Cal. Rptr. 160 In re the Marriage of DORIS V. and JOHN R. THOMPSON. JOHN R. THOMPSON, Appellant, v. DORIS V. THOMPSON, Respondent. Docket No. 18727. Court of Appeals of California, Fourth District, Division One. August 31, 1979. *623 COUNSEL Bekken & Bekken and Dean Bekken for Appellant. Avery & Fuhrman, William R. Fuhrman and Victor S. Eriksen for Respondent. OPINION...
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Opinion Following reversal of a judgment for plaintiff in an unlawful detainer action, plaintiff caused the action to be dismissed. Defendant thereafter filed a motion for the award of attorney’s fees and the trial court made an order allowing such fees, but in a lesser amount than prayed. Both parties have appealed this order. The rental agreement between the parties provided that in the event o...
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Opinion Plaintiff, Signal Hill Aviation Company, a California corporation, filed a complaint seeking damages and equitable *632 relief. Named as defendants were Bill Stroppe, his wife, Helen Stroppe, the Board of Water Commissioners of the City of Long Beach (hereinafter, the Board), and the City of Long Beach (hereinafter, the City). 1 The complaint set forth four...
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Opinion A minor asks us to set aside the judgment committing him to the California Youth Authority and to grant new jurisdictional and dispositional hearings. The 17-year-old (born Dec. 11, 1961) minor was taken into custody on June 27, 1978; a petition to declare him a ward of the court (Welf. & Inst. Code, § 602) was filed on June 29. Three counts of armed robbery (Pen. Code, § 211a) were alleg...
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96 Cal.App.3d 653 (1979) 158 Cal. Rptr. 406 WEST FOODS, INC., Plaintiff and Respondent, v. UNEMPLOYMENT INSURANCE APPEALS BOARD, Defendant and Appellant. Docket No. 18145. Court of Appeals of California, Third District. September 4, 1979. *654 COUNSEL George Deukmejian, Attorney General, L. Stephen Porter, Assistant Attorney General, Thomas E. Warriner and Richard M. Ross, Deputy Attorneys Genera...
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Opinion This is an appeal by Metro U.S. Services, Inc. and American Empire Insurance Company, plaintiffs and appellants herein, from a judgment in a declaratory relief action rendered in favor of the City of Los Angeles, defendant and respondent herein. All the facts and issues were stipulated to in the trial court. In brief the parties stipulated; Plaintiff Metro U.S. Services, Inc. (herei...
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Opinion Ruben M., a minor, appeals from the order of adjudication sustaining the petition, declaring him to be a ward of the court and committing the minor to the California Youth Authority for a period not to exceed 34 months. The order placing the minor in the Youth Authority is based upon a current charge of malicious mischief (Pen. Code, § 594) together with three previously adjudicat...
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Opinion Pursuant to section 400 of the Code of Civil Procedure, petitioner seeks review of an order of respondent court, denying its motion for change of venue. We grant the peremptory writ. Petitioner is a California corporation, with its residence in Shasta County. The real party in interest, and two individuals who are stockholders in it, brought suit in Santa Barbara County again...
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96 Cal.App.3d 725 (1979) 158 Cal. Rptr. 205 THE PEOPLE, Plaintiff and Appellant, v. CLEDETH GONZALES, Defendant and Respondent. Docket No. 30345. Court of Appeals of California, Second District, Division Five. September 5, 1979. *726 COUNSEL John K. Van de Kamp, District Attorney, Donald J. Kaplan and Maurice H. Oppenheim, Deputy District Attorneys, for Plaintiff and Appellant. H. Phillip McQuown...
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Opinion John F. Schroeder appeals from a probation order which was rendered after a jury found him guilty of four counts of grand theft (Pen. Code, § 487, subd. 1) and one count of conspiracy (Pen. Code, § 182). Appellant operated as a wholesaler of used automobiles under the title, “Courtesy Auto Sales.” Assisted by Edward Zinski, Jr., and other accomplices some of whom testified at trial, a...
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Opinion Defendant was charged by information with one count of grand theft in violation of Penal Code section 487, subdivision 1, for stealing carpeting worth approximately $30,000 between November of 1977 and June of 1978 from the carpet mill where he was employed as a security guard. His motion to suppress the two confessions he made, one to a private security agent and one to the police, was de...
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Opinion Statement of the Case Appellant, a municipal utility, appeals from a judgment quieting title in respondent to certain real property in Fresno County and enjoining appellant from further asserting any interest in the property. The property consists of two lots with a common boundary along which a public alley formerly ran. Respondent is the owner of both lots. A water line bel...
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*754 Opinion Plaintiff and appellant Local Union No. 428 of the International Brotherhood of Electrical Workers (hereinafter referred to as Local 428) filed a petition against defendant and respondent Wilbur Silva, doing business as Del Mar Electric (hereinafter referred to as Del Mar) in Kern County Superior Court, seeking enforcement of three awards made by a joint labor-manage...
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Opinion Defendant, Terris Murphy, and real party in interest, Real Estate Education, Research and Recovery Fund 1 (hereafter Fund), appeal from an order directing payment from the Fund of a judgment obtained by plaintiff against defendant Murphy. 2 Defendant is a licensed real estate broker, who purchased a house and moved it to a vacant lot which he also owned. De...
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Opinion On March 26, 1975, defendant Joseph E. Kristoff (Kristoff) sold his 1968 Ford passenger car to defendant Thomas Francis Rafferty (Rafferty). Both parties testified that the car registration and the certificate of ownership were properly endorsed and delivered along with the car to Rafferty on that date, thus complying with Vehicle Code section 5602, subdivision (a).1 On April 12, 1975, pl...
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96 Cal.App.3d 792 (1979) 158 Cal. Rptr. 238 THE PEOPLE, Plaintiff and Respondent, v. COMMUNITY RELEASE BOARD, Defendant and Respondent; GARY HAROLD PHOENIX, Real Party in Interest and Appellant. Docket No. 20869. Court of Appeals of California, Fourth District, Division Two. September 7, 1979. *794 COUNSEL Lawrence Buckley for Real Party in Interest and Appellant. Quin Denvir, State Public Defend...
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*804 Opinion Joseph George Pieri III sought a writ of mandate (Code Civ. Proc., § 1094.5) in the superior court to annul the decision of the administrative law judge made in hearings before the Department of Real Estate, State of California (Commissioner) denying Pieri’s application for real estate broker’s license. 1 The trial court issued its alternative writ and upo...
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Opinion Plaintiff New Linen Supply, a California corporation doing business as Western Environmental Engineering (Western) filed an action for unfair competition against defendants George H. Lerg II (Lerg), a former officer and director of Western, Eastern Environmental Controls, Inc., a Maryland corporation (EEC) and its president, Daniel C. Pavon (Pavon), involving the alleged wrongful ...
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Opinion A jury found defendant guilty of possession of heroin and misdemeanor battery. Fie appeals from the judgment. The following, adduced on the Penal Code section 1538.5 hearing, demonstrates that appellant’s contention that the evidence seized was the product of an illegal detention, is without merit. Between July 19 and December 9 Narcotic Officer Burwell received information from six reliab...
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Opinion The minor appeals from order of the juvenile court sustaining petition charging assault with a deadly weapon upon one *831 Lindley arising out of a motor vehicle accident in which neither Lindley nor the minor was involved, and committing him to the California Youth Authority. Timely application for rehearing was filed by the minor on November 29, 1978. On December 19, 1978, the court...
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*838 Opinion Appellant Mary G. Milliken in propria persona brought this action against the City of South Pasadena and Sergeant Lonnie Johnson of the South Pasadena Police Department for false arrest, false imprisonment, and malicious prosecution. The trial court granted summary judgment for respondents. We hold the judgment must be reversed because there are triable issues of fac...
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96 Cal.App.3d 846 (1979) 158 Cal. Rptr. 449 THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LOUIS BLACK, Defendant and Appellant. Docket No. 18311. Court of Appeals of California, First District, Division Four. September 13, 1979. *849 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Clifton R. Jeffers, Chief Assistant State Public Defender, Peter R. Silten a...
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Opinion The People appeal from an order which granted respondent’s motion to suppress evidence seized under a search warrant. At issue are two motion pictures entitled, respectively, “PB-1” and “LX-9 (The Fist Fucker)” (hereafter “LX-9”). The trial court granted the motion *Supp. 34to suppress on the ground that the decision to issue the search warrant could only be made after the magistrate deter...
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96 Cal.App.3d 856 (1979) 158 Cal. Rptr. 434 THE PEOPLE, Plaintiff and Respondent, v. HENRY AGUILAR HERNANDEZ, Defendant and Appellant. Docket No. 34064. Court of Appeals of California, Second District, Division One. September 13, 1979. *858 COUNSEL Joseph Shemaria and Joseph F. Walsh for Defendant and Appellant. George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney ...
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Opinion This appeal involves the probate of a formal will which the testatrix attempted to alter by pen and ink strikeouts and interlineations. Dorothy V. Gumming (hereinafter the decedent) died April 22, 1975, survived by a sister Gladys Gumming Noll and a brother Ulmont Gumming. The latter died prior to the probate of Dorothy’s will, and is represented in this proceeding by his executors. The d...
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Opinion The Board of Supervisors of Kern County 1 appeals from a judgment granting a writ of mandate compelling it to compute and levy a tax for the benefit of respondent Kern Water Agency. We reverse the judgment insofar as it provides for taxes for certain obligations of the agency but affirm it as to the remainder of the taxes involved. Although the record and briefs before us are extens...
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*898 Opinion Appellant Milton S. Katz appeals from a judgment denying his petition for a peremptory writ of mandate. At all relevant times, Katz was licensed as a real estate broker by respondent Department of Real Estate of the State of California. In early 1975, Katz purchased a residential dwelling in Sylmar, California, for $10,000. At the time he entered into the transaction, Katz kn...
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96 Cal.App.3d 904 (1979) 158 Cal. Rptr. 425 THE PEOPLE, Plaintiff and Respondent, v. RICHARD PINON, Defendant and Appellant. Docket No. 33731. Court of Appeals of California, Second District, Division Five. September 13, 1979. *907 COUNSEL Catherine A. Martinez, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger and George Deukmejian, Attorneys General, Rober...
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Opinion Petitioning employers seek review of findings by the Workers’ Compensation Appeals Board that their respective employees were injured as the proximate result of serious and willful misconduct by the employers (Lab. Code, § 4553 1 ). While the two injuries are unrelated, we issued a consolidated writ of review because of the similarity of the basic issue presented. ...
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Opinion Petitioner Charles E. Puett is the defendant in a criminal action in which he is charged with six counts of issuing a check without sufficient funds (Pen. Code, § 476a). Two days before his scheduled preliminary hearing, petitioner (hereafter defendant), who is indigent, moved the Victorville Division of the San Bernardino Municipal Court in which the preliminary hearing was to be held,...
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*948 Opinion Plaintiff and appellant, Susan Carol Bolen, sued defendant and respondent, Dr. Daniel Woo, for medical malpractice. At the conclusion of the four-day trial the jury, on a nine-to-three vote, returned a verdict in favor of respondent. On appeal, appellant claims that the trial court committed prejudicial error in instructing the jury on the issue of contributory ...
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Opinion Appeal from a judgment of the superior court denying a petition to vacate an arbitration award under a collective bargaining agreement. We affirm. That Way Production Company, a corporation (Producer) produces feature length theatrical films. Edward Montagne is a film director and a member of the Directors Guild of America, Inc. (Guild), a collective bargaining representative...
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Opinion On March 16, 1978, Irving Rubin, a national director of the Jewish Defense League, held a press conference in Los Angeles, California, to protest a planned demonstration and march by the American Nazi Party to take place in Skokie, Illinois, on April 20, and to announce the organization of a counterdemonstration to stop the march. During the press conference Rubin held up five $100 bills a...
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96 Cal.App.3d 1005 (1979) 158 Cal. Rptr. 470 VERNA L. GOINS, Plaintiff and Appellant, v. BOARD OF PENSION COMMISSIONERS OF THE CITY OF LOS ANGELES et al., Defendants and Respondents. Docket No. 53993. Court of Appeals of California, Second District, Division Five. September 17, 1979. *1006 COUNSEL Kirsch, Arak & Bulmash and Richard J. Greene for Plaintiff and Appellant. *1007 Burt Pines, City Att...
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Opinion Plaintiff-appellant Sanders sued Ford Motor Company (Ford) and others. In the first count of his complaint he sought recovery against Ford and one of its dealers for alleged fraud and misrepresentation in connection with the braking system of a Ford automobile purchased by appellant in 1972. *Supp. 45The action is subject to the Pilot. Project for Economical Litigation (hereafter ELP) appl...
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Opinion The marriage of the parties was dissolved by a final judgment on January 30, 1974, referring to and incorporating the provisions of an interlocutory judgment entered on November 9, 1973. Daniel G. Poppe (hereafter former husband) appeals from an order of the court dated September 18, 1978, denying his request that spousal support be decreased or terminated and granting the application o...
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*14Opinion Respondent was stopped by police officers while he was driving his automobile in the early morning hours of January 30, 1978, and was subsequently arrested for violation of Vehicle Code section 23102, subdivision (a) (driving under the influence of intoxicating liquor.) Having failed to submit to any of the chemical tests specified in Vehicle Code section 13353 and having been later adv...
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Opinion The nature, scope, and applicability of the good faith improver statute (Code Civ. Proc., § 871.1 et seq.) is the fundamental issue presented upon this appeal. The factual circumstances which gave rise to the present controversy began in 1959. At that time defendants and cross-complainants (hereafter Brovans) purchased approximately 75 acres of land in Shasta County. The deed...
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Opinion Defendant appeals from a judgment which determined that he had suffered a prior felony conviction. The court sentenced him to state prison for the term prescribed by law and ordered him delivered into the custody of the Director-of Corrections. The judgment appealed from followed a prior appeal of defendant’s conviction, upon a plea of guilty, to violation of Penal Code section 12021, poss...
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Opinion Plaintiff Jacqueline L. Winslow (herein called Winslow) petitioned for a writ of mandate directed to the San Diego Community College District and its governing personnel (herein called the District). In her petition she sought classification as a tenured part-time teaching employee and a determination of salary differential due her from the date of acquisition of such status. The matter...
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Opinion In this case we hold that the publication of a letter, which, in substance, charges a candidate for public office with engaging in political chicanery is protected by the First Amendment. *51 In New York Times Co. v. Sullivan, 376 U.S. 254 at page 270 [11 L.Ed.2d 686 at page 701, 84 S.Ct. 710, 95 A.L.R.2d 1412], the Supreme Court observed that this country has “a profound nation...
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97 Cal.App.3d 56 (1979) 158 Cal. Rptr. 535 In re the Marriage of BETTY LOU and ROBERT W. LIONBERGER. BETTY LOU LIONBERGER, Appellant, v. ROBERT W. LIONBERGER, Respondent; OPERATING ENGINEERS PENSION TRUST, Appellant. Docket No. 54977. Court of Appeals of California, Second District, Division Four. September 20, 1979. *59 COUNSEL Marvin Licker for Appellant Wife. Wayne Jett and Robert Scot Cliffor...
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Opinion Plaintiffs appeal from an order dismissing their first amended complaint after an order sustaining with leave to amend, a demurrer to that complaint and an order striking the third cause of action therein for sham. We affirm the order. Plaintiffs are producers and exhibitors of what their complaint characterizes as “sexually explicit motion picture films” and an association of such pr...
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Opinion Ronald Sillers appeals from a judgment denying a petition to compel arbitration of a claimed employment grievance. The undisputed facts are that appellant is a sheriff’s sergeant of Contra Costa County, holding his appointment under county civil service, and that by examination he qualified himself for promotion to the position of sheriff’s lieutenant. Appellant presented a grievance pursu...
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Opinion This is an appeal taken by defendant Pacific Telephone and Telegraph Company from an order allowing plaintiff *104 Max Greenberg all costs incurred by him and denying defendant’s motion to tax costs by either striking plaintiff’s costs bill or to apportion costs on a comparative negligence basis. Plaintiff was using the telephone in one of defendant’s public tele...
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Opinion Appellants were each charged in a six-count information with attempted murder in violation of Penal Code sections 664 and 187; assault with intent to commit murder in violation of Penal Code section 217; and assault with a deadly weapon in violation of Penal Code section 245, subdivision (a). Appellants pleaded not guilty to all counts and their motion to sever was granted. *128 App...
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97 Cal.App.3d 136 (1979) 158 Cal. Rptr. 550 In re RAY O., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. RAY O., Defendant and Appellant. Docket No. 4489. Court of Appeals of California, Fifth District. September 24, 1979. *137 COUNSEL Thomas F. Schroeter, under appointment by the Court of Appeal, for Defendant and Appellant. George Deukmejian, Attorney Gen...
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97 Cal.App.3d 141 (1979) 158 Cal. Rptr. 562 In re BARBARA WHITE on Habeas Corpus. Docket No. 4360. Court of Appeals of California, Fifth District. September 24, 1979. *143 COUNSEL Melvin Nitz, Public Defender, and Katherine Hart, Deputy Public Defender, for Petitioner. George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorn...
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Opinion In this extraordinary writ proceeding stemming from a labor dispute, petitioner, San Francisco Bay Area Rapid Transit District (hereafter BART), petitions this court for a writ of mandate to compel respondent superior court to vacate portions of its order of August 3, 1979, which BART contends have exceeded the jurisdiction of respondent court. The order was entered as a consequen...
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Opinion Appellant was tried and convicted in a jury trial of violating Vehicle Code section 8803 and Vehicle Code section 31. He has appealed the judgment contending insufficiency of the evidence on both counts and abuse of discretion in denial of a continuance in order that appellant could obtain alternate counsel, defense counsel considering himself an essential witness in his client’s behalf. I...
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*Supp. 8Opinion We issued an order to show cause why the appeal should not be dismissed because of failure to file the notice of appeal in the time required by rule 182, California Rules of Court. That rule requires a notice of appeal from a judgment of the municipal court in a criminal case to be filed with the clerk of that court within 30 days of the judgment. The rule further states that “When...
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Opinion Cross-complainant Arnold W. Wynner appeals from a summary judgment in favor of cross-defendant Alfred C. Buxton, dismissing Wynner’s cross-complaint as to Buxton. The cross-complaint sought damages from several named participants in the construction of a self-service gas station on Van Nuys Boulevard in the City of Los Angeles. The project as commenced was owned by a partnership o...
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Opinion This appeal involves the constitutionality of two provisions of Los Angeles Municipal Code section 103.101 (as amended by Ordinance No. 150,184, approved Oct. 5, 1977) governing permission to operate a picture arcade. Defendants City of Los Angeles, board of police commissioners, police chief, and city attorney appeal from the granting of a preliminary injunction to plaintiffs, a group ...
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*218 Opinion This appeal involves the preclusive effect of a summary judgment for defendants in plaintiff’s federal court action for alleged violations of his civil rights on his subsequent state court action for the vindication of his state claims based upon the same operative facts. Defendants’ demurrer to plaintiff’s complaint in the state court action was sustained...
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Opinion In an action for specific performance of a contract to convey real property, defendants appeal from an order granting a preliminary injunction which prohibits them from occupying or otherwise exercising possession of the subject property. In April 1977, defendant Arthur M. Webb was the owner of undeveloped land in the City of Rancho Mirage. He entered into a contract of sale ...
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Opinion Plaintiff sued to recover a real estate broker’s commission allegedly due under a written agreement with defendants executed in 1965. Trial was to the court and decision was in favor of defendants, the court concluding that plaintiff’s recovery was barred by Business and Professions Code section 10136 which requires proof in an action for a real estate commission that the plaintif...
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*253 Opinion Joseph Chaplis appeals from a judgment of nonsuit and dismissal of all his alleged causes of action against all defendants. For the reasons hereinafter stated, we affirm the judgment as to the County of Monterey and its employees and reverse the judgment as to defendants Heisinger and Bonanfant. In the fall of 1973, Mr. Chaplis decided, after numerous hours of i...
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Opinion Plaintiff, Guiseppe Pennisi (appellant) appeals from a judgment rendered in favor of defendants State of California Fish and Game Department and Director E. C. Fullerton (respondents) in an action brought for declaratory relief. The summarized facts reveal that in April 1977, trawl nets belonging to appellant, a commercial fisherman, were seized by respondents for the reason ...
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Opinion Walter Stallcup (hereinafter husband) appeals from a judgment dividing community property and awarding child and spousal support to his former wife Carolyn (hereinafter wife). The couple married *298 in Oklahoma on August 18, 1962, moved to California in 1963, and separated on February 5, 1972. Husband was on active duty in the Air Force from 1961 to 1966 and was a ma...
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97 Cal. App. 3d 304 (1979) 158 Cal. Rptr. 635 BENJAMIN NATHAN ROMO, a Minor, etc., Plaintiff and Appellant, v. ESTATE OF CHARLES R. BENNETT, Deceased, Defendant and Respondent. Docket No. 4084. Court of Appeals of California, Fifth District. September 26, 1979. *305 COUNSEL Jerold L. Bloom and Robert M. Fox for Plaintiff and Appellant. Diepenbrock, Wulff, Plant & Hannegan, John J. Hannegan, P...
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Opinion Background The developer of an idea for a television sports quiz show (Edgar C. Paris) sued'a television sports'announcer (Richárd Enberg) and others in *313 two separate actions for appropriating his idea and producing a sports quiz show based upon it. This appeal follows the granting of defendants’ motion for summary judgment in the trial court. We affirm the judgment. In case N...
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Opinion The administrator of an estate sought to set aside an inter vivos gift which decedent (Truckenmiller) allegedly gave as the result of the undue influence of the gift’s recipients (Mr. and Mrs. Wells). Judgment was rendered for the recipients and against the administrator.^ *329 The administrator appeals, contending that the trial judge erred in refusing to ...
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Opinion Roy A. Sparks, Jr. (Roy), petitioner below, appeals an interlocutory judgment of dissolution of his marriage to Virginia M. *355 Sparks (Virginia). During the marriage the parties purchased a large unimproved parcel of land in Jamul, California, which all agree is community property of the marriage. Later a piece of the parcel was split off, and on it Virginia had built a single famil...
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Opinion On defendant’s appeal challenging the validity of a state prison sentence imposed pursuant to the purported terms of a negotiated plea agreement, we examine the novel question whether a trial court may properly condition a prison sentence based solely upon a defendant’s failure to appear at the time regularly set for imposition of sentence. We conclude that such an extraordinary p...
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Opinion This appeal presents a novel issue concerning the power of the probate court to apportion commissions earned by real estate brokers upon the sale of an asset of the estate. The administratrix of the estate of Marie E. Cattalini sought confirmation of a sale of real *369property owned by the decedent. The probate court confirmed the sale and divided the broker’s commission equally between ...
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Opinion Appellant, who was charged with possession of marijuana for the purpose of sale, moved to quash the search warrant and to *379 suppress the evidence, contending that untimely return of the warrant invalidated the warrant. After denial of the motion by the trial court, appellant entered a plea of nolo contendere to the crime charged. Facts: The search warrant was issued on May 1, 1...
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Opinion The People have appealed the dismissal of several overt acts alleged in an indictment charging defendants with conspiracy to conceal stolen property. We reverse. Joseph Edward Wood was a claims manager for the Hartford Insurance group. In that capacity he had knowledge of and access to a confidential insurance investigatory file on one June Walker who had sustained catastrophic brain ...
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Opinion Defendant appeals from his conviction under Penal Code section 211 (robbery) with the use of a firearm within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1). Statement of Facts At trial, testimony by prosecution witness tended to show the following facts: At 12:45 a.m. on November 25, 1977, defendant drove into a gas station at Vermont and Imperial in Los...
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Opinion Defendant, an attorney, appeals from a judgment entered after a jury awarded damages of $64,983.31 against him for legal malpractice in connection with the drafting of a “Clifford Trust” for plaintiffs Roy C. Horne (Horne) and Doris G. Horne, husband and wife. He contends that the judgment should be reversed or in the alternative that another attorney, Thomas J. McIntosh, upon who...
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Opinion A jury convicted Douglas Edward Anderson of kidnaping for ransom (Pen. Code, § 209) and first degree burglary (Pen. Code, § 459). 1 He appeals from the judgment, questioning the sufficiency of the evidence, evidentiary rulings, competence of defense counsel, conduct of the prosecutor, and jury instructions. We conclude his arguments are without merit and affirm the judgment. *423 ...
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97 Cal.App.3d 430 (1979) 158 Cal. Rptr. 668 DANIEL W. DULEY et al., Plaintiffs and Respondents, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant and Appellant. Docket No. 18540. Court of Appeals of California, Fourth District, Division One. September 19, 1979. *431 COUNSEL Poindexter & Doutre and Jeffrey A. Kent for Defendent and Appellant. Romney, Andersen & Allen, Romney & Andersen, James M. All...
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Opinion The People appeal from a judgment denying their petition for a writ of mandate to overturn two orders of respondent municipal court in a criminal proceeding. We affirm the judgment. The real party in interest was charged, in 15 counts, with the possession of obscene films, in violation of section 311.2 of the Penal Code. Of those counts, counts I through VII allege possession on May 2...
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Opinion In this robbery prosecution (Pen. Code, § 211), the People appeal from an order of dismissal entered pursuant to Penal Code section 1382. (Pen. Code, § 1238, subd. (a)(8).) Penal Code section 1382 provides in pertinent part: “The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases: [U] 2. When a defendant is not brought to tr...
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Opinion Petitioner Franklin P. Palm seeks a writ of “prohibition/mandate” to compel the Superior Court of San Diego County to vacate its order and stay further proceedings in exercise of jurisdiction in a disputed child custody matter instituted by Rebecca Palm Moody in her complaint to establish a North Dakota divorce decree. That 1974 decree gave Rebecca custody of the parties’ minor son who was...
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Opinion This is an appeal from a judgment entered in favor of plaintiff and respondent, Western Sierra, Inc. (Thereafter Western), against defendant and appellant, Joseph Ramos, upon a complaint for breach of contract and to foreclose a mechanic’s lien. Appellant contends the evidence is insufficient to support various findings and the judgment, to the extent they find that he was re...
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Opinion We issued an alternative writ of mandate in order to consider the validity of the superior court’s order disqualifying Attorney Nathaniel S. Colley from serving as trial counsel for petitioners Sandra Harris and Phillip Harris in their actions against real parties in interest, Hospital Service of California and Blue Cross of California (hereafter collectively, Blue Cross), and Kaiser Fo...
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Opinion The San Francisco Civil Service Commission (Commission) appeals from a judgment granting Cooperrider’s petition for a writ of mandate directing it to accept and process her application for employment, as the one-year durational residency requirement of San Francisco Administrative Code section 16.98(a) was unconstitutional, as it violated the equal protection clause of the federal...
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*Supp. 12Opinion Defendant was convicted of violating Penal Code section 484 (petty theft) after a jury trial. The prosecution introduced evidence by security guard Valdz that defendant had concealed three packages of meat on his person in a supermarket; had failed to pay for the meat at a cash register; and was apprehended by Valdz as the defendant approached the exit door. Defendant testified th...
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*Supp. 18Opinion Plaintiff, an attorney at law, appeals from a judgment denominated “Judgment #1” which denied him relief against defendants Basil Feinberg (Feinberg), Adolph Alexander (Alexander) and International Ladies’ Garment Workers’ Union (Union). The judgment followed the granting of those defendants’ motions for judgment at the close of plaintiff’s case under Code of Civil Procedure secti...
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Opinion In each of these cases the defendant was subjected to a body search after being found arguably in possession of less than one ounce of marijuana.1 In each case a motion was made to suppress the evidence discovered as a result of such search. In People v. Soberanes the motion was denied and defendant appeals. In People v. Cook the motion was granted and the People appeal. We uphold each sea...
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Opinion Petitioner Donald Bray pleaded nolo contendere to a charge of passing checks without sufficient funds (Pen. Code, § 476a). 1 At that time, the indeterminate sentencing law (ISL) was in effect. Petitioner was sentenced to a term of six months to fourteen years. (Former §§ 18a, 476a.) He was first paroled on this charge, on May 11, 1976. He thereafter violated parole...
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Opinion The only issue in this appeal is the propriety of a court order, issued following a hearing on appellant’s order to show cause re modification of visitation, which required that appellant, a welfare recipient who had not been able to afford counsel for himself, pay $200 in attorney’s fees for counsel for his ex-wife. This order was entirely prospective in nature, as appellant was not re...
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Opinion Appellant Floyd Cohen appeals from a judgment denying his petition for a writ of mandate to compel respondent officials of the California State University and Colleges to process a grievance under Education Code section 89542.5. Appellant is a tenured professor in the mathematics department of California State University, Long Beach. The dean of the school of letters appointed appella...
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Opinion Defendant was convicted of (count I) rape, a violation of Penal Code section 261, subdivision (3); (count II) sodomy, a violation of Penal Code section 286, subdivision (c), and (count III) oral copulation, a violation of Penal Code section 288a, subdivision (c) after trial by jury. Since the contentions on appeal are: 1. “The trial judge’s refusal to release the defendant on bail a...
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*555 Opinion This is an appeal by Fredrick W. Marx, Jr. (husband) from a judgment in a dissolution of marriage action whereby he contends that the trial court awarded Shirley Joyce Marx (wife) more than one-half of the community estate, and abused its discretion in the award for spousal and child support. There is no serious dispute concerning the basic underlying facts of t...
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Opinion Respondent Department of Social Service of the City of Los Angeles is responsible for the regulation of bingo games for charity authorized by Penal Code section 326.5. Appellant Temple of Inspired Living (TOIL), is a charitable and religious organization, whose application for a bingo license was denied by respondent. The trial court denied appellant’s petition for writ of mandamu...
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Opinion On March 11, 1977, defendant was sentenced for violations of section 11351 of the Health and Safety Code. The court found that as charged in count 1 of the information defendant “possessed for sale one-half ounce or more of heroin within the meaning of Penal Code section 1203.07.” Defendant appealed. On August 30, 1978, we filed an opinion in which we affirmed the conviction on the issu...
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Opinion This appeal presents a controversy over Medi-Cal payments which plaintiff counties allege are due them from the defendants. Defendants appeal from a judgment granting the County of Sacramento, County of Alameda, and intervener County of San Mateo (unless otherwise specified, referred to as plaintiffs) declaratory relief and a peremptory writ of mandate. The judgment found that cer...
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97 Cal. App. 3d 593 (1979) 159 Cal. Rptr. 49 DONALD R. McCONVILLE, Plaintiff and Respondent, v. DORIS V. ALEXIS, as Director, etc., Defendant and Appellant. Docket No. 55309. Court of Appeals of California, Second District, Division Three. October 11, 1979. *595 COUNSEL George Deukmejian, Attorney General, Marilyn K. Mayer and John Crimmins, Deputy Attorneys General, for Defendant and Appellant. ...
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Opinion This is an appeal by defendant and cross-complainant Lorrayn Gertsch, administratrix-with-the-will-annexed of the estate of her deceased husband, Charles Arco Gertsch, from certain orders and judgments entered in the superior court after the consolidated trial of a probate matter and of a general civil case. The present plaintiffs, Paul R. Hutchinson and James A. Irwin, attorneys at l...
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Opinion This case is before us on certification from the Yolo County Superior Court after a decision by its appellate department. We granted the transfer to this court for the purpose of determining whether an order of restitution of money imposed by a municipal court upon a convicted criminal defendant as a condition of *623 probation is a “debt” dischargeable in bankruptcy. This is a questi...
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Opinion Introduction The action in the trial court was for money damages allegedly arising from the legal malpractice of defendant, a practicing attorney. According to the allegations of the complaint, the defendant was retained by the four named plaintiffs to prepare a limited partnership agreement wherein *649 they, the plaintiffs, would be cast as the limited partners...
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Opinion Following his indictments, February 10, 1972, and June 14, 1972, for felonious offenses, defendant Ralph Barger’s motion for appointment of private counsel at public expense was granted by the superior court. The court’s order as here relevant provided: “Without prejudice, this Court now will appoint private counsel to represent the defendant, Ralph Barger, but likewise, the Court...
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Opinion On appeal from a judgment of conviction entered upon a jury verdict of guilty of a violation of Penal Code1 section 12560 (possession of a firearm by a person previously convicted of a felony committed with a firearm), defendant challenges both the admissibility and sufficiency of the evidence and the sentence imposed. Our review of the record discloses no merit in the several challenges;...
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Opinion By its “Complaint in Injunction” the City and County of San Francisco (City) sought to abate as a nuisance, certain premises allegedly used as “light food processing for delicatessen, catering or restaurant supply,” in violation of the City’s zoning ordinances. A demurrer to the complaint was sustained without leave to amend and a judgment of dismissal of the action was thereafter...
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Opinion Petitioner, charged by information with the commission of a felony (burglary, in violation of Pen. Code, § 459), seeks a writ of prohibition to prevent respondent superior court from proceeding with his trial. Petitioner contends that respondent court exceeded its jurisdiction in denying his motion to set aside the information made pursuant to Penal Code section 995 on the ground that h...
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Opinion The facts in this matter are uncomplicated and not in dispute. On July 5, 1978, a criminal complaint was filed in the municipal court, alleging that on or about March 5, 1978, respondent Drake violated Elections Code section 29410, a misdemeanor. Section 29410, in pertinent part, reads as follows: “(a) Every person, other than a public officer in the performance of an official duty, is gui...
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Opinion Appellant Wheeler was convicted of three counts of violating sections of the Los Angeles County Public Health Code (which code was later incorporated into the City of Los Angeles Municipal Code) and appellant Tufts was convicted of one such count. We affirm the convictions, except that of appellant Wheeler as to one of the charges, describing the evidence and sections so far as is necessar...
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Opinion Defendant appeals from the Los Angeles Superior Court’s denial of his petition for a writ of mandate. Statement of Facts Defendant was charged in a misdemeanor criminal complaint with . violation of Vehicle Code section 23102, subdivision (a), driving while under the influence of alcohol, and with two other violations. The two other violations were later stricken. The charges stemme...
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97 Cal.App.3d 710 (1979) 158 Cal. Rptr. 902 LORNA MULLANEY et al., Plaintiffs and Appellants, v. MARION J. WOODS, as Director, etc., Defendant and Respondent. Docket No. 16926. Court of Appeals of California, Third District. October 16, 1979. *715 COUNSEL Roberta Ranstrom and Kathleen Walsh for Plaintiffs and Appellants. Evelle J. Younger and George Deukmejian, Attorney Generals. John J. Klee, Jr...
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Opinion A defendant is authorized to file a cross-complaint against a concurrent tortfeasor for partial indemnity on a comparative fault basis, even when the concurrent tortfeasor was not named as a defendant in the original complaint. (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 607 [146 Cal.Rptr. 182, 578 P.2d 899]; referred to in this opinion...
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Opinion We have seen this case before. In Airfloor Co. of California, Inc. v. Regents of University of California (1978) 84 Cal.App.3d 1004 [149 Cal.Rptr. 130], we held litigation of nonarbitrable debts exceeded the scope of the proceeding to confirm the arbitration award. *741However, concerned with the inequity to the university if it were unable to offset Airfloor’s $100,000 judgment against an...
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Opinion Appellant was convicted by a jury of the crime of rape. For purposes of our disposition, the salient facts which are not contested here are these. Delores Riley and her friend Melody Taylor took a ride with appellant in his car in the late evening hours of November 4, 1977. When they arrived at appellant’s apartment house, Ms. Riley stayed in the car and appellant and Ms. Taylor “ende...
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Opinion This appeal concerns conflicting claims of the County of Orange (County) and the State of California to certain funds. The funds were derived from payment to the County of cancellation fees by the owners of an agricultural preserve upon cancellation of an agreement executed between the County and the property owners pursuant to the California Land Conservation Act of 1965. This act, gen...
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Opinion The instant appeal presents the single question of whether the appellant-taxpayer has the right to maintain an action for a refund without having first made full payment of the tax liability. The trial court answered the question negatively, sustaining respondent State Board of Equalization’s demurrer without leave to amend. The factual background shows that appellant, a California co...
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Opinion Minor appeals from order sustaining petition, declaring him a ward of the court (§ 602, Welf. & Inst. Code) and imposing home probation. *779 About 7 p.m. the minor and another juvenile were standing on a street corner; minor’s companion looked in the direction of officers riding in an unmarked patrol car and turned toward the minor whereupon the minor threw a bag ov...
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Opinion Respondents Willie E. Atkins and Melissa L. Atkins sued to set aside a deed executed by the Treasurer of the City of Los Angeles in October 1974, in favor of appellant George Kessler following foreclosure of a street improvement assessment lien on respondents’ property pursuant to the provisions of the Improvement Act of 1911. (Sts. & Hy. Code, § 5000 et seq.) 1 The tri...
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Opinion Nature of Appeal: Plaintiff appeals from order sustaining demurrer without leave to amend. The basis of the order sustaining the demurrer was that the action was barred by the statute of limitations. We amend the order of the superior court by adding a paragraph dismissing the action and thereby treat the appeal as one from the judgment of dismissal. (Bellah v. ...
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Opinion Manuel Sanchez successfully petitioned the Superior Court of Los Angeles County for a writ of prohibition to prevent the Municipal Court of the Los Angeles Judicial District from conducting further proceedings in a case in which he was charged with a violation of Vehicle Code section 23102, subdivision (a). The People have appealed. We reverse. Penal Code section 1382, subdivision (3)...
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Opinion In an action by the City of Los Angeles (City) to collect unpaid business taxes from London Towne Livery Service, Ltd. (London) the superior court entered summary judgment in favor of London on the basis that City’s ordinance is unconstitutional. The City has appealed. We reverse. London, who maintains offices in Beverly Hills and Newport Beach, operates a charter transportat...
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*826 Opinion Plaintiffs Eugene J. Albertini and Chronometrics, Inc., a California corporation, filed a complaint seeking damages for slander, trade libel and interference with business relationship. Named as defendants were Robert J. Schaefer and Sysgen, Inc., a California corporation. Defendants sought and obtained a summary judgment in their favor. Plaintiffs have appealed from...
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*839 Opinion Defendant was charged with mayhem in violation of Penal Code section 203 (count I); two counts of assault by means of force likely to produce great bodily injury in violation of Penal Code section 245, subdivision (a), (counts II and III); two counts of battery in violation of Penal Code section 242 (counts IV and V). A motion to sever the counts for trial was denied. Following j...
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Opinion Defendant Thornsberry appeals from an adverse $9,447.96 judgment. We affirm. Plaintiff is the assignee for collection of an account receivable of Super Secur Comfort Stations (Super Secur), a division of Aluminum Plumbing Fixture Corporation. Super Secur is a manufacturer of metal prefabricat*844ed restrooms, one of which was sold to defendant, a general contractor, for installation at th...
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Opinion Husband Lacy Laden Forrest, Jr. (Lacy) appeals portions of an interlocutory judgment of dissolution which (1) deny him a share in the right of wife Nancy Lou Forrest (Nancy) to reinstate her federal civil service retirement benefits and (2) award Nancy a community property interest in Lacy’s military retirement pension. The parties separated after a 15-year marriage. Before the partie...
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*858 Opinion The workers’ compensation judge determined that the claim of applicant Patricia M. Esposito was barred by the statute of limitations. After granting reconsideration, the Workers’ Compensation Appeals Board (Board) held that the employer, Michael Hurwitz, and his workers’ compensation insurance carrier, Industrial Indemnity Company, were estopped to assert the statute...
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Opinion Toni Reyes, the wife, in a marital dissolution proceeding joined Carpenters Pension Trust Fund for Northern California (the Fund) to which her husband, Ralph Reyes, was a contributor. In the decree of dissolution the trial court ordered the Fund to pay directly to the wife her community property share of the payments to the husband as they will fall due when the husband retires and commenc...
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*883 Opinion Esmael P. Velasquez suffers from asbestosis, a progressive lung disease which he contends is the responsibility of respondents. His appeal is from a summary judgment which determined that he filed his claims sounding in negligence and strict liability too late to satisfy the applicable one-year statute of limitations. (Code Civ. Proc., § 340, subd. 3.) ...
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*894 Opinion A manufacturer is strictly liable in tort for injuries proximately caused by a defect in design or manufacture of the product provided the product is used in a manner reasonably foreseeable by the manufacturer. (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62-63 [27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049]; Cronin ...
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97 Cal.App.3d 903 (1979) 159 Cal. Rptr. 125 TIMOTHY O'SHEA, Plaintiff and Appellant, v. CLAUDE C. WOOD COMPANY, Defendant and Respondent. Docket No. 17356. Court of Appeals of California, Third District. October 22, 1979. *906 COUNSEL Donald D. Boscoe and Marvin Marks for Plaintiff and Appellant. Albert E. Cronin, Jr., for Defendant and Respondent. OPINION REYNOSO, J. We are called upon to interp...
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97 Cal. App. 3d 915 (1979) 159 Cal. Rptr. 131 VIRGINIA T. FRANKLIN, Plaintiff and Appellant, v. BENEVOLENT AND PROTECTIVE ORDER OF ELKS, LODGE NO. 1108 et al., Defendants and Respondents. Docket No. 41924. Court of Appeals of California, First District, Division One. October 23, 1979. *918 COUNSEL Carnes & Bailey and Don E. Bailey for Plaintiff and Appellant. Elise Snyder as Amicus Curiae on ...
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Opinion Commonwealth Land Title Insurance Company’s demurrer to Harrison’s complaint was sustained without leave to amend. Harrison appeals from the order of dismissal, which constitutes a judgment (Code Civ. Proc., § 581d; see Weiss v. Marcus (1975) 51 Cal.App.3d 590, 594, fn. 1 [124 Cal.Rptr. 297]). *975 In his complaint, Harrison alleged that he purc...
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*984 Opinion On July 27, 1978, Glen J., age 15, was found by the juvenile court to be a person within section 602 of the Welfare and Institutions Code following his admissions to three counts of burglary, one count of attempted burglary, and one count of vandalism, all as alleged in the amended petition. (All succeeding statutory references are to the Welfare and Institutions Code unless othe...
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Opinion Following our opinion in this matter, filed February 2, 1978, the Supreme Court granted a hearing and, on January 24, 1979, retransferred the case to this court for reconsideration in light of Civil Service Assn. v. City and County of San Francisco (1978) 22 Cal.3d 552 [150 Cal.Rptr. 129, 586 P.2d 162]. Plaintiff appeals from the judgment of. the Sacramento County Superior Court affirming...
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Opinion Defendant timely appeals from an order of the municipal court revoking probation and sentencing her to 180 days in county jail with credit for 30 days previously served in jail. The only contention on appeal raised by defendant and pursued by her in her briefs that has merit is that credit for time served should have been in excess of the 30 days given. The chronology of this matter is as ...
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*Supp. 62Opinion This is an appeal by the People from an order after judgment which they claim has deprived them of the benefits of a plea bargain into which they entered. Facts 1. On July 18, 1977, a 15-count complaint was filed. Count 1 charged respondent with violating section 11156 of the Health and Safety Code (furnishing a controlled substance to an addict). Count 2 charged that respondent ...
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Opinion This appeal involves the constitutionality of the policy and practices pursued by the Sheriff and Board of Supervisors of Orange County of providing minimum security jail facilities with their attendant privileges, including outside work assignments, for male prisoners while denying such facilities and privileges to female inmates. The trial court decided that the practice was vio...
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Opinion By complaints separately filed but subsequently consolidated for trial, appellants City of Lafayette and Town of Moraga sought injunctive and declaratory relief against respondent American Television and Communication Corporation, a community antenna television (CATV) company, to enforce appellants’ asserted rights to regulate the rates charged by respondent for CATV service within appe...
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Opinion Lamont Reed, the real party in interest in this original proceeding, is awaiting trial in respondent court under an information charging him with the murder of Chearl Reed on April 14, 1978. The information was amended to include an additional charge that he committed the murder under some of the “special circumstances” defined in Penal Code section 190.2 and cited in other provis...
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Opinion Petitioner, El Dorado Irrigation District (district), seeks a writ of mandate to compel the Superior Court of Sacramento County to *59 vacate its order relieving real party in interest (Evans) from the claim-filing requirements of Government Code section 945.4. 1 On November 30, 1977, while employed by H. M. Byars Construction Company, Evans was injured when a steel pipe fell from...
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Opinion In this proceeding for a writ of prohibition, petitioner, Jim K. Lister, seeks to prohibit enforcement of a Sacramento Superior Court order adjudging him in criminal contempt and imposing two days’ imprisonment and a $100 fine. The court found the manner in which petitioner responded to two official questionnaires designed to *67 elicit his eligibility and availability for jury servic...
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Opinion Defendants La Rancherita of La Jolla, Inc. (La Rancherita) and Louis Martinez (Martinez) appeal from the judgment awarding damages to plaintiffs based on the tort of intentional interference with a contractual relationship. The factual setting of this *77case—the commercial dealings between a landlord and tenant—requires the drawing of the line between sophisticated negotiations necessary...
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Opinion Defendant appeals from a judgment against it in the sum of $73,215.18. The judgment in favor of plaintiff was based upon his *92 claim for attorney’s fees for services rendered defendant. The judgment was by default and represents the amount alleged by plaintiff to be due as set forth in his affidavit in support of the default judgment plus interest and costs. The default judgment was...
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Opinion The Metropolitan Water District of Southern California (Metropolitan) is a public agency engaged in the procuring, storage and delivery of water at wholesale for its member public agencies, which include 12 municipal water districts. In carrying out its *112 authorized purposes Metropolitan constructs, operates and maintains its water supply facilities and fixes a uni...
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Opinion Michael C., a minor, appeals from an order of the juvenile court sustaining a petition filed against him pursuant to Welfare and Institutions Code1 section 602 and declaring him a ward of the court on the basis of commission of a burglary in violation of Penal Code section 459. The appeal lies. (§ 800.) *120Appellant contends that: (1) his petition for rehearing on both adjudication and di...
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Opinion We affirm the judgment of the probate court distributing property to the assignee of appellant, an heir of the estate of Sholts H. Boyd, deceased. In so doing, we hold that, in assessing the reasonableness of the consideration paid for an assignment of an interest in a probate estate, the lower court properly looked to the value of the estate interest on the date the assignment was made...
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Opinion Appellant, convicted of burglary and sentenced to the middle term of two years, contends that the trial court improperly denied his motion for the mitigated term, and that in any event he is entitled to good time/work time credit for time he spent in presentence custody. We find merit only in the second contention. I The circumstances of appellant’s crime can be summarized briefly. ...
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Opinion Appellant appeals from a superior court judgment denying his petition for a writ of mandate to compel respondent David Fox, Commissioner of the Department of Real Estate (herein after called Commissioner) to set aside his decision revoking appellant’s broker’s license and substituting therefor a restricted salesman’s license. *171 The Commissioner’s office filed an a...
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Opinion The State of California, acting by and through the Department of Parks and Recreation (Department) appeals from a judgment in inverse condemnation awarding damages in excess of the sum of $6 million to the property owner, Briggs, contending that: 1) Briggs had no cause of action for damages for inverse condemnation as *194 a result of the California Coastal Zone Conservation Commissio...
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Opinion This is an appeal from a judgment entered in favor of plaintiff and respondent, Theodore John Borns, against defendant and; appellant, Barbara Ann Butts, upon a complaint for damages sustained in a collision between respondent’s motorcycle and appellant’s automobile. ,, The jury below returned four verdicts: 1. By a vote of nine-three it found that appellant was negligent and that t...
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Opinion Wendy J. J. Whitton (appellant) and her father, Frank Whitton, sued the State of California for personal injuries sustained by Wendy and for damage to her father’s car in an accident that occurred January 12, 1975. Wendy had been pulled over by California Highway Patrol (CHP) officers for speeding. A drunken driver (McKay) later hit the CHP vehicle from the rear, and Wendy ended up pinn...
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*252 Opinion Bernice Madden and Levi Williams appeal from judgments of conviction against each of them after a joint trial. Ms. Madden was charged in the information filed against her as follows: Count I—sale of heroin, November 3, 1976 (Health & Saf. Code, § 11352, subd. (a)), one-half ounce or more (Pen. Code, § 1203.07, subd. (a) (2)). Count II—possession of heroin f...
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Opinion Napa Association of Public Employees (Local 614, SEIU AFL-CIO) is an employee organization which represents public *266service employees and public service employee supervisors of the County of Napa for purposes of bargaining pursuant to the Meyers-Milias-Brown Act, Government Code section 3500 et s'eq. jn August 1977 the association and the county entered into written memoranda of under...
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*275 Opinion In an information filed in the Superior Court of Napa County defendant and appellant David Roy Sanders was charged with violations of Penal Code section 217 (assault with intent to commit murder) and Penal Code section 245, subdivision (a) (assault with a deadly weapon). Appellant pled not guilty and not guilty by reason of insanity to each count. On the first day of jury trial t...
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*284 Opinion Plaintiff, Marcus Adler, appeals from a judgment granting him an alternative writ of mandate and from a partial summary judgment in favor of defendants, Los Angeles Unified School District, et al., with respect to other causes of action of plaintiff’s third amended complaint. 1 Facts 2 On or about May 8, 1969, plaintiff, a probationary high ...
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*294 Opinion Defendant has appealed from his conviction for violation of Penal Code section 187, first degree murder, and Penal Code section 211, robbery. It was alleged in the information filed by the Los Angeles County District Attorney that appellant personally used a firearm within the meaning of Penal Code section 12022.5 in the commission of the foregoing crimes. The jury was unable to ...
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Opinion This appeal is pursued by Jack E. Wilkinson, M.D., from a summary judgment and judgment of dismissal granted in favor of the defendant, Norcal Mutual Insurance Company, a medical malpractice insurance carrier. The sole issue is whether Wilkinson exhausted his administrative remedies pursuant to Insurance Code section 1858 et seq. and section 11587 1 before filing his se...
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©PSNION Petitioner Morton Herr seeks reversal of a decision after reconsideration of respondent Workers’ Compensation Appeals Board (WCAB). Herr sustained a compensable industrial accident while employed by respondent County of Los Angeles (County). Herr filed a superior court action against the third party also involved in the accident. County filed a lien in the civil action pursuant to...
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Opinion On October 17, 1978, an amended supplemental petition was filed in the Tulare County Superior Court, sitting as a juvenile court. That petition alleged, in pertinent part, as follows: *332 “The person named in the above caption is now a ward of the above entitled court. “This person comes within the provisions of Section 602 of the Juvenile Court Law of Californ...
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Opinion Respondents James Lubey and George Hood were probationary members of the uniformed ranks of the Police Department of the City and County of San Francisco. A citizen made unsworn charges of misconduct against each of them. The matter was referred to the police department’s internal affairs bureau and an investigation was started. The officers were interrogated and thereafter furnis...
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Opinion Plaintiff, Ruth Kane, appeals from a judgment of nonsuit in an action for personal injuries. Decision of the trial court was entered upon motion by defendant, Hartford Accident and Indemnity Company (Hartford), following presentation of an opening statement stipulated to contain the facts which plaintiff proposed to prove in support of her complaint. In March 1971, plaintiff,...
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98 Cal.App.3d 363 (1979) 159 Cal. Rptr. 554 In re the Marriage of JEANNE D. and DAVID S. WINN. JEANNE D. WINN, Respondent, v. DAVID S. WINN, Appellant. Docket No. 56078. Court of Appeals of California, Second District, Division Four. November 5, 1979. *364 COUNSEL Frederick E. Chol for Appellant. M.S. Rose for Respondent. *365 OPINION KINGSLEY, J. On this appeal, the husband attacks two portions ...
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*375 Opinion Defendant Brian James Cartwright, respondent and cross-appellant herein, appeals his conviction of second degree murder. The People, 1 appellant and cross-respondent herein, appeal the trial court’s reduction of the jury’s first degree murder verdict to second degree. Statement of Facts On December 31, 1976, defendant Brian James Cartwright decided to spend New Year’s Eve w...
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Opinion Defendants Trans Pacific Industries, Inc. (TPI) and Fireman’s Fund Insurance Company (Fireman’s) appeal from the judgment in favor of plaintiff City of Sacramento (City). The judgment was entered after a court trial of a contract action arising out of TPI’s failure to perform its obligations under a subdivision agreement with City. On appeal both defendants contend that (1) there ...
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Opinion Briley, plaintiff below, appeals from dismissal of his action for want of prosecution within five years of filing the action pursuant to the mandatory dismissal provisions of Code of Civil Procedure section 583, subdivision (b). The statute requires an “action. . .shall be dismissed by the court. .. unless. . . brought to trial within five years after the plaintiff has filed his a...
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*415Opinion This is an appeal from a judgment declaring Geoffrey G., a minor, free from the parental custody and control of appellant, his natural father, under the provisions of Civil Code section 232, subdivision (a) (4)1 and granting a petition for adoption of the minor by his maternal grandmother and her husband (hereinafter grandparents). Appellate review here necessitates an interpretation o...
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*431 Opinion Neel S. Rich (Rich) sued the City of Benicia (Benicia) and several individual defendants to compel preparation of an environmental impact report. After the parties had resolved the environmental issues, by stipulation, early in the proceedings, the trial court, upon motion, awarded attorney fees to Rich on a “private attorney general” theory. Both Rich and Benicia appeal from the...
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*441 Opinion This is an appeal from an order of the trial court quashing the service of summons on the defendant and respondent First Bank of Oak Park (Oak Park). There is some confusion by the attorneys about what facts are in the record. 1 However, the relevant facts for this appeal are summarized as follows: John Gleason was an Illinois resident. He was the sole shareholder of Gleaco C...
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Opinion On this appeal from an order determining costs we are called upon to decide whether Code of Civil Procedure section 998 applies to an offer to compromise made jointly by two defendants to one plaintiff, and if so, whether plaintiff may recover her preoffer costs. We answer both questions in the affirmative. Plaintiff Jean N. Brown and another, whose case was settled pretrial, filed a ...
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Opinion Defendant Joseph Matthews was convicted in count VI of the premeditated murder of his girl friend Ernestine Easley with the special circumstance of an additional murder (Pen. Code, §§ 187, 190.2), and was convicted in other counts of the felony murder of his son, Joseph, Jr., (Pen. Code, §§ 187, 189), of the attempted murder with intentional infliction of great bodily injury of his daughte...
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98 Cal.App.3d 460 (1979) 159 Cal. Rptr. 564 CENTRAL INDUSTRIAL ENGINEERING COMPANY, INC., Plaintiff, Cross-defendant and Appellant, v. STRAUSS CONSTRUCTION COMPANY, INC., et al., Defendants, Cross-complainants and Respondents. Docket No. 55029. Court of Appeals of California, Second District, Division Four. November 6, 1979. *462 COUNSEL Newton & Irvin and Richard B. Newton for Plaintiff, Cro...
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Opinion By an amended information, defendant was charged in count I with a violation of Penal Code section 288a, subdivision (b) (2), a felony. It was alleged in count I that d^ndant committed this offense on or about May 8, 1977, by being over the age of 21 years and participating in an act of oral copulation with Fred V., a person under the age of 16. In count II, it was alleged that, on the ...
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Opinion Petitioner, Scott E. Ingram, seeks a writ of mandate directing the Superior Court of Sutter County to vacate its order striking petitioner’s amendment to his complaint and its order of substitution, or in the alternative, to vacate its order denying petitioner’s motion to amend his complaint. Petitioner contends that Russell Marvin Parks (who was killed in the same accident in which petit...
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Opinion Defendant, Safeway Stores, Inc. (Safeway), appeals from a judgment entered after a jury found it liable to plaintiff, Louis W. Meder, in the sum of $40,000 for malicious prosecution. Plaintiffs, Louis W. Meder and Pauline Meder (Mrs. Meder), appeal from the judgment awarding costs to Safeway incurred in obtaining a partial pretrial judgment on the pleadings against plaintiff, Pauline Meder...
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Opinion The present appeal is from a judgment denying a petition for a peremptory writ of mandate directing the Secretary of State to certify the result of the June 6, 1978, primary election for Office No. 2 of the Municipal Court for the Eureka Judicial District, and requiring the Secretary in substance to do all things necessary to facilitate plaintiff’s assumption of that office. In 1975 the Ca...
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Opinion We issued an alternative writ of mandate on the petition of the People, in order to determine whether the superior court abused its discretion in ordering recusal, i.e., disqualification, of the district attorney from further representation of the People in a case where one Gary Moto Martin stands charged with murder and arson of a dwelling house. On March 12, 1979, a petition was filed wi...
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Opinion Molly Rivera Reyes appeals from the denial of her motion to dismiss, the judgment of conviction rendered against her, and the sentence imposed by the Superior Court of Contra Costa County. On April 18, 1978, a detainer was lodged against appellant pursuant to the Agreement on Detainers. (18 U.S.C. appen., art. Ill; Pen. Code, § 1389 et. seq.) At that time, appellant was serving a 15-year s...
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Opinion Ala Carte Catering Co. was charged in a series of citations with violating section 80.73 (b) of the Los Angeles Municipal Code, which relates to unlawful dispensing of victuals from catering trucks, and with violating section 80.69 (b) of the same code,1 which relates to parking in violation of “No Parking” signs. Ala Carte demurred to the complaints, claiming that section 80.73 (b) was un...
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I agree with the majority on the first four points in the opinion of the court. I disagree with the fifth point regarding the scope of the judge’s duty of determining that the waiver of counsel by the defendant is knowingly, intelligently and understandingly made. Footnote 2 of the majority opinion sets forth in full the colloquy between the defendant and the court and prosecutor. This recorded co...
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Opinion Appellant J. Toney is a defendant in the instant civil action and an interested party in consolidated proceedings brought by the plaintiff therein, Celso Pena, for recovery of personal property in a related criminal case. Toney appeals from the decision of the trial court recognizing ownership of a 1972 Chevrolet automobile in Celso Pena and ordering possession thereof delivered to him....
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Opinion Appellants Save El Toro Association and others (hereafter Save El Toro) appeal from an order of the superior court denying their motion for an award of attorney’s fees. In the litigation underlying the present appeal, Save El Toro filed a complaint against the mayor and other officials of the City of Morgan Hill, seeking a judgment annulling a resolution creating an assessment district, v...
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Opinion These are cross-appeals by real party in interest, City of Palos Verdes Estates (hereafter City), and the petitioner, Robert Alvin Chang (hereafter petitioner), from a judgment (1) directing the issuance of a writ of mandate commanding the City to pay petitioner full back pay from December 11, 1974 to November 11, 1975, the date the city council first sustained his discharge, and ...
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Opinion Statement of the Case On September 30, 1975, real party in interest United Farm Workers of America, AFL-CIO (UFW) filed two unfair labor practice charges *585 with the respondent Agricultural Labor Relations Board (Board) against Pandol & Sons (petitioner). On October 2, 1975, the Fresno regional director ordered the cases consolidated and issued a complaint agai...
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Opinion The City of Mill Valley (City) was the insured under a liability insurance policy written by Transamerica Insurance Company (Transamerica). The City’s appeal is from a judgment denying recovery in its action based upon a claim of liability of Transamerica under that policy. The uncontradicted background, facts of the case follow. A series of heavy rains, in January 1970, had ...
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*606 Opinion Petitioners, Greyhound Lines, Inc. and James Hurson, sought to compel the performance of an oral settlement agreement made by real party in interest, Sherry Olsen, at a judicial settlement conference. After a full evidentiary hearing as approved in Gregory v. Hamilton (1978) 77 Cal.App.3d 213 [142 Cal.Rptr. 563], the petition was denied. We granted Greyhound’s petition for an...
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Opinion We issued our alternative writ of mandate to examine the single question whether a personal injury litigant may be compelled to submit to a physical examination by a vocational rehabilitation expert who is not a licensed physician. We conclude that neither statutory nor other authority sanctions the examination ordered by the trial court; accordingly, the petition must be granted. Facts ...
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Opinion On appeal from a judgment of conviction for lewd and lascivious conduct upon the body of a child under the age of 14 years appellant contends that the sentencing court erred in committing him to prison on this count since he already had commenced serving a lesser term on a different count, and that the court also erred in sentencing him on a lesser included offense. Neither claim has me...
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Opinion Joseph H. appeals from the sustaining of a petition alleging that he is a minor coming within the provisions of Welfare and *630 Institutions Code section 602 by virtue of his violation of Vehicle Code section 20002, subdivision (a). Appellant contends that denial of his motion for acquittal pursuant to Penal Code section 1118 was erroneous. On February 2, 1979, at about 6:30 p.m., ...
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*635 Opinion This petition is by a mother seeking an increase in child support payments, and challenges the right of the purported father to compel her and her child to submit to blood testing for paternity. It also challenges an order compelling the child to attend a deposition. The Attorney General, attorney for petitioner, contends that res judicata bars inquiry into the issue of paternity...
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Opinion After the municipal court sustained general demurrer by Minoru Hori to the unlawful detainer complaint of Anthony and Connie De La Vara, the De La Varas petitioned the superior court for a writ of mandate compelling the municipal court to vacate the order and overrule the demurrer. Hori appeals from judgment granting the petition. *640 Hori frames the sole issue on a...
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Opinion Introduction Petitioners, the State of California and Williams Construction Company, defendants in a civil action (hereinafter defendants) seek a writ of mandate to compel the superior court to vacate its order denying a motion to dismiss for failure to bring the action to trial within five years pursuant to Code of Civil Procedure section 583, subdivision (b) (hereinafter section 583...
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Opinion Wilbur F. Littlefield, Public Defender of the County of Los Angeles, has filed petition for writ of mandate to compel respondent superior court to vacate its order of July 31, 1979, appointing the Public Defender of the County of Los Angeles as counsel for real party in interest Jesus Arteaga Herrera, defendant in a civil action brought pursuant to sections 11350.1 and 11475.1, Welfare ...
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Opinion This is a proceeding in mandamus which involves interpretation of the statute governing discovery of expert witnesses. (Code Civ. Proc., § 2037 et seq.) Petitioner is one of three codefendants in a medical malpractice action pending in respondent court. Real party in interest is the plaintiff in that action. Petitioner’s two codefendants, Drs. Davis and Brown, served a demand...
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Opinion This case arose from the 1972 massive flooding of Bran-nan-Andrus Island in the Sacramento-San Joaquin delta (commonly known as the Isleton flood), resulting from failure of a levee on the San Joaquin River. Liability Disposition of the Case in Trial Court A class action was filed against the State of California (state), the Brannan-Andrus Levee Maintenance District,...
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Opinion Real party in interest Vernal Henry is charged in municipal court with nine counts of misdemeanor vandalism. Among his pretrial motions was one to recuse the Sacramento County District Attorney’s office. Henry argued that recusal was necessary because a deputy district attorney was the victim of a similar incident and a possible trial witness, and because a former deputy district attorn...
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Opinion Defendant appeals from the judgment of the Shasta County Superior Court imposed after he admitted a probation violation following his conviction in Butte County for grand theft. In January 1977, defendant, then age 17, pleaded guilty in Shasta County Superior Court to four counts of violating Vehicle Code section 10851 (unlawful driving or taking of a vehicle). He was placed ...
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Opinion Robert Avalos and David Becerra separately appeal from judgments against each of them, after a joint trial, of conviction of violation of Penal Code section 187 (murder in the first degree) and of Penal Code section 211 (robbery in the first degree) and of Penal Code section 459 (burglary in the first degree). Each appellant was sentenced to state prison for the term prescribed by law...
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Opinion In an original proceeding before this court, petitioner Duane M. Caligari seeks a writ of prohibition and/or mandate to order the Superior Court of San Luis Obispo County to suppress certain evidence in a pending action in that court, and to order dismissal of said action. Petitioner was charged with possession of cocaine for sale (Health & Saf. Code, § 11351). Petitioner’s m...
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Opinion Appellant appeals from the trial court’s judgment dismissing her complaint for failure to comply with a discovery order. After the dismissal, appellant did not seek relief from the trial court, either by means of a motion pursuant to Code of Civil Procedure section 473 or otherwise. Appellant filed a complaint for personal injuries on September 29, 1975. On December 7, 1976, ...
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Opinion In July of 1977, appellant began operation of an amusement center known as “Rock City” located at 7001 Hollywood Boulevard in the City of Los Angeles, part of an area designated for zoning purposes as “C4.” At its inception, the center’s business inventory consisted of some 28 coin-operated game machines of the pinball or *748 electronic variety. Within days of its op...
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Opinion On April 25, 1978, respondent filed in Los Angeles Superior Court her application for entry of judgment on sister state judgment 1 pursuant to Code of Civil Procedure section 1710.15 2 and *756 judgment was entered thereon by the clerk 3 on May 3 the same year. Though notice thereof was not served on appellant as required by Code of Civil Procedure section 1710.30, subdivision (...
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Opinion Facts Following a foreclosure sale of defendant borrowers’ single-family dwelling by the holder of the first trust deed on the property, plaintiff *763 lender sued defendants for the unpaid amount on two promissory notes, which were secured by trust deeds on the same property and whose proceeds were used for the construction of a swimming pool and a concrete block wall at the proper...
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Opinion Defendant was convicted by a jury of possession of heroin (Health & Saf. Code, § 11350) and sentenced to the upper term of three years, the term “to run consecutive with any federal sentence.” He appeals from the judgment. He has also filed a petition for writ of habeas corpus which we have consolidated for hearing with the appeal. The sufficiency of the evidence is not in is...
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Opinion This case involves the issue of the application of “good time” and “work time” credits (collectively designated herein as behavior credits) to a defendant as to whom all the following factors apply: (a) he has been convicted of a felony; (b) imposition of sentence has been suspended and probation granted, with the condition that he serve 300 days in a county jail; (c) probation has been vi...
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Opinion This is an appeal from a judgment granting plaintiff Etelvina Ruiz-Cano a peremptory writ of mandate ordering certain officials of San Diego County to reinstate plaintiff to a previously held employment position with the county, together with associated benefits, and awarding her back pay with interest. Plaintiff was hired by the county on August 24, 1977, as a mental health ...
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Opinion Plaintiff Leon Bahan appeals from a summary judgment entered in favor of defendant Dr. Morton Kurland. On May 5, 1978, plaintiff instituted this action for damages against Dr. Morton Kurland and the State of California alleging three purported causes of action (intentional infliction of emotional distress; negligent infliction of emotional distress; and medical malpractice). The grava...
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Opinion Defendant was convicted in a nonjury trial of seven counts of violating the Dangerous Weapon Control Law. Specifically, he was found guilty of possessing explosives, hand grenades, machine guns and a silencer. *823 On appeal, defendant challenges the validity of the seizure by deputy sheriffs of the various items of weaponry and the sufficiency of the evidence to support the trial c...
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Opinion Appellant, after waiving trial by jury, was found guilty by the court in two counts of violating Penal Code section 273a, *833 subdivision (1) (felony child endangering) and that in the commission of the offenses she used a deadly and dangerous weapon, to wit, a wooden dowel, said use not being an element of the offenses charged, within the meaning of Penal Code section 12022, subdivi...
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Opinion Plaintiff Jessie Planck appeals from a summary judgment in favor of defendant Rita McDavid Hartung (hereinafter McDavid) in an action for property damage. On May 26, 1976, a fire caused damage and destruction in the La Vista Blanc Condominiums at Mammoth Lakes, California. According to plaintiff, owner of a burned condominium unit, the fire originated in the condominium unit ...
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Opinion We are presented with a single issue upon undisputed facts: whether a person who conveys real property in exchange for promissory notes without obtaining security for payment of those notes can establish a vendor’s lien against subsequent purchasers of the property for value who do not have actual notice of the unpaid promissory *847 notes by recording a “notice of ve...
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Opinion Defendant appeals from the judgment imposed following entry of his guilty plea to violation of Penal Code section 187 (second degree murder) and Penal Code section 12022.5 (use of a firearm in the commission of a felony). Defendant makes the following contentions: (1) The trial court failed to consider his intoxication and the victim’s provocation as factors in mitigation; (2) the trial...
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Opinion Appellants, the County of Trinity and its board of supervisors, seek a writ of supersedeas. They are defendants in a proceeding in Trinity County Superior Court in which the respondent herein, Albert Mills, is plaintiff. In the proceeding in the trial court, Mills challenged the constitutionality of supervisors’ resolution No. 73-78 providing for increased fees for the Trinity Cou...
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Opinion The People appeal from dismissal of the information after the granting of respondent’s motion made pursuant to Penal Code section 995. The issue is whether an awl is not a dirk or a dagger as a matter of law. Respondent was charged with a violation of Penal Code section 12020, carrying a dirk or a dagger concealed upon his person. Respondent was arrested after being discovered asleep ...
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Opinion The The sole issue presented in this appeal is whether the court applied proper methodology in denying the Union’s petition to compel arbitration. We conclude it did not. In reaching the merits of the Union’s claim, the court failed to limit itself to the circumscribed role of passing only on the question of whether the claim on its face was covered by the arbitration provisions of the co...
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Opinion Ernest Graham and Eugene Allen seek a writ of mandate in 1 /Civil 47698 to determine that the mandatory death penalty provision of Penal Code section 4500, effective at the time of the offense with which they are charged, is unconstitutional. The Supreme Court has recited the facts in an earlier appeal involving these petitioners as follows: “On November 27, 1973, a state correction...
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*894 Opinion Ray L. Gava and Nancy Ann Gava appeal a judgment in favor of Dwight H. and Grace Carroll for damages based on negligent misrepresentation. For the reasons given below, we affirm. The dispute concerned representations made about the zoning of a mobilehome park site in Placer County. The Gavas purchased the site from the original owners in early 1970 and sold it t...
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Opinion Defendant physician Siegel appeals from a judgment entered in favor of plaintiffs in a malpractice action against him following a court trial. 1 On September 8, 1975, two-year old Audrey Robinson was suffering from gastroenteritis and moderate dehydration necessitating her admission to West Hills Hospital in Canoga Park for the administration of fluids intravenously (...
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Opinion Plaintiff appeals an order quashing summons and a companion order dismissing his action for failure to comply with the mandatory requirements to make service and return of summons within three years (Code Civ. Proc., § 581a). The sole question on appeal is whether personal service by a copy of a summons and complaint after the original of that summons had been filed with the clerk i...
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Opinion Louis and Lloyd Risso appeal from that portion of the trial court’s judgment which set aside, as against respondent, a deed of trust executed by trustor Louis Risso in favor of beneficiary Lloyd Risso covering certain real property located in the County of San Joaquin. In a prior action, judgment was entered on July 16, 1974, in favor of respondent and against appellant Louis...
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Opinion Daniel Kotler, a creditor of decedent Robert L. Coate, and Margaret G. Coate, executrix of the estate of her deceased husband, appeal from a judgment in favor of Life Insurance Company of California based on an order for entry of summary judgment. This case turns on the duty of a life insurance company to give written notice to a creditor-assignee of a life insurance policy as a precondit...
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Opinion Petitioner, a private school presently serving children from two to eight years old, seeks writ of mandate to compel the San Francisco Unified School District to permit it to compete equally for leases for vacant school district property. Specifically, petitioner challenges that portion of resolution No. 91-23A3, adopted by the board of education of the district on February 14, 1979, wh...
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Opinion This is an appeal by the State Controller (hereafter Controller) from an order of the Superior Court of Monterey County fixing the inheritance tax in the estate of Elsie A. Garin, deceased (hereafter decedent). The report of the inheritance tax referee filed May 5, 1978, treated as an asset of her estate an inter vivos transfer made ostensibly as an advancement (Rev. & Tax. Code, § 13647)...
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Opinion I Case Summary The important facts of this case are as follows: Landlord serves three-day notice and brings suit for unlawful detainer, alleging one month’s rent of $235 to be due and unpaid. Defendant asserts the defense of breach of implied warranty of habitability. At the trial, substantial evidence in support of such defense is admitted into evidence, and the settled statement summariz...
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Opinion Respondent, Robert Jay McClure, was arrested for a violation of Penal Code section 12020, subdivision (a) and was charged with a violation of that section pursuant to Penal Code section 17, subdivision (b) (4). Respondent was arrested for possessing a belt buckle knife connected to a belt worn by respondent while at Lindbergh Field. The arresting officer had observed that the belt buckle h...
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Opinion The appellant appeals his conviction for violating section 314, subdivision 1 of the Penal Code (indecent exposure) asserting three grounds of error, none of which justifies reversal. While representing himself the appellant took the stand and testified on his own behalf. A survey of the record on appeal discloses that the appellant was never informed by the court of his Fifth Amendment ri...
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Opinion This petition for writ of mandate seeks to set aside discovery orders made by the court below directing petitioner Cobb to answer certain questions asked at his deposition relating to his financial affairs, and directing petitioner Dover Equities, Inc., to respond to interrogatories seeking its net worth for the years 1976, 1977 and 1978. * 1 Each order contained protective provisio...
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Opinion Plaintiff appeals from orders dismissing its complaint after orders sustaining without leave to amend the demurrers of the two defendants. We affirm the orders. Since the case comes to us on demurrers, and those demurrers admitted (so far as we are now concerned) the facts, but not the conclusions, of the complaint, we set forth, as facts, the essential allegations of that co...
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Opinion Originally, Mr. Pulvers brought suit against the Kaiser Health Plan and its related agencies and Dr. Lee, for mal *564 practice in the treatment of a condition known as Bowen’s disease. Mr. Pulvers died during the pleading stages of that case and it was thereafter continued by his widow as administratrix and in her individual capacity. Ultimately, in the fourth amended complaint, ther...
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Opinion The People of the State of California appeal from a judgment of the Los Angeles County Superior Court granting a peremptory writ of prohibition as to a proceeding in municipal court charging Michell Florence Perlman, Sandra Dimock Leavitt, Christina Fowler, Patricia Mary Demperio, Rosalie J. Borthwick and Mirian Briks (hereinafter referred to collectively as defendants) with a violation o...
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Opinion Introduction A wife sued her husband for personal injury resulting from an accident where she was the passenger in the automobile which he drove. The defendant husband was not served with summons for more than three years. The case was dismissed, and plaintiff has appealed. Facts The following is the chronology of the facts of this case: October 10, 1973: Wife ...
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Opinion Petitioner contends respondent Workers’ Compensation Appeals Board (WCAB) erred in denying him reimbursement of medical-legal expenses incurred to prove his contested workers’ compensation claim and refusing to award him as against the alleged employer deposition costs and attorney’s fees. We affirm the decision of the WCAB. I. Appeals Board Proceedings Petitioner Ysidro Zarate fi...
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*609Opinion Appellants Irwin Fulop and Esther Handmaker appeal from that portion of an order settling the first account current of the trustee of the estate of Clarence F. Ott, deceased, which denies appellants’ petition for compensation of attorneys. Appellant Fulop is an attorney licensed to practice law in California. Appellant Esther Handmaker is the widow of Herman Handmaker, who was an atto...
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Opinion This is an appeal by a certificated employee of defendant North Orange County Community College District (District) from a judgment dismissing his petition for a writ of mandate following an order sustaining the District’s demurrer without leave to amend. The petition sought to compel the District to reinstate plaintiff, originally employed as a part-time temporary teacher and to accord...
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Opinion Introduction Petitioner Western Electric Company (hereinafter Western) seeks by way of a writ of review to annul, vacate and set aside an order and decision of the Workers’ Compensation Appeals Board (hereinafter WCAB) following reconsideration whereby WCAB annulled the decision and order of the workers’ compensation judge (hereinafter WCJ). *634 The WCJ had denied applicant Lahoma ...
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Opinion The Workers’ Compensation Appeals Board (Board) awarded employee Bernice Lewis $22,260 as workers’ compensation for her claimed disability, resulting from a sprained ankle. Her employer, petitioner Universal City Studios, Inc. (Universal), petitioned for writ of review before this court. We granted the writ to determine employer’s claims. Universal contends: (1) the Workers’ Compe...
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Opinion Bakman et al., Fresno homeowners (homeowners), appeal from the superior court’s judgment denying their petition for writ of mandate requesting a new administrative hearing on an amended airport permit granted to Fresno Air Terminal (FAT). Facts Fresno (City) began operating FAT in 1948. FAT received a state airport permit in 1949, and also operates under a Federal Av...
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Opinion Plaintiffs appeal from a judgment refusing to quiet title in them to a triangular strip of land which lies at one end of their property between certain properties of the defendants, They claim title through (1) their interpretation of certain surveys, (2) the doctrine of agreed boundaries, and (3) adverse possession. Defendants, who are adjoining landowners, claim title through their ow...
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99 Cal.App.3d 702 (1979) 160 Cal. Rptr. 524 In re the Marriage of ROBERTA L. and GARY N. BROWN. GARY N. BROWN, Appellant, v. ROBERTA L. BROWN, Respondent. Docket No. 16748. Court of Appeals of California, Third District. November 13, 1979. *704 COUNSEL Gerald D. Wolcott for Appellant. John D. Brody and Kurt M. Pedersen for Respondent. OPINION JANES, J. Appellant, Gary N. Brown, appeals from an or...
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Opinion A complaint filed in Kern County Superior Court alleged that appellant Coca Cola Bottling Corporation (hereafter referred to as Coca Cola) was indebted to appellant H. Russell Taylor’s Fire Prevention Service, Inc. (hereafter referred to as Taylor) in excess of $9,500. Taylor’s complaint prayed for relief based on the following four causes of action: (1) account stated; (2) open b...
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Opinion Petitioners are the defendants, charged with bookmaking offenses under Penal Code section 337a, subdivision 4 and/or 337a, subdivision 5, in the underlying criminal action. On June 11, 1979, they filed in the superior court a pretrial motion to dismiss based upon the claim that Santa Clara County law enforcement agencies have engaged in deliberate and invidious discriminatory enforcement o...
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*751 Opinion In criminal complaints filed in the Municipal Court for the City and County of San Francisco on or about June 14, 1977, defendants Michael D. Mercer and Michael L. Jones (appellants) were charged with the commission of two felonies, i.e., burglary in violation of Penal Code, 1 section 459; and grand theft in violation of section 487. The charges grew out of the burglarizing of ...
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Opinion By information defendant was charged with the murder of Antonio Magallon in violation of Penal Code section 187. It was also alleged that defendant had used a firearm during the commission of the offense in violation of Penal Code section 1203.06, subdivision (a)(1). Defendant entered a plea of not guilty and denied the firearm use allegation. Defendant personally and all counsel waiv...
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Opinion Plaintiff appeals from a judgment rendered by the court in a trial without a jury for personal injuries incurred by plaintiff in an encounter with defendant’s dog. Since this appeal was taken on the clerk’s transcript alone, we are not concerned with evidence taken in the trial court; we presume that such evidence was sufficient to support the findings of fact. Our primary inquiry is ...
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Opinion Plaintiffs George F. Yackey and Alma H. Yackey brought this action to recover money damages for breach of contract (escrow instructions) against the Pacifica Development Company (partnership) and its copartners William R. Swann and Edward Gessin. *780 Upon trial, the court found the release clause in the escrow agreement so uncertain as to render the entire agreement...
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Opinion Royal Convalescent Hospital, Inc., a licensed Medi-Cal services provider (Royal), claims monies due from the state for services rendered to Medi-Cal beneficiaries without first receiving authorization required by regulation. Upon rejection of the claim by the State Board of Control (Board), Royal elected not to file an action on it but instead petitioned for administrative ma...
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99 Cal.App.3d 805 (1979) 160 Cal. Rptr. 471 LEW WARDEN, Plaintiff and Appellant, v. MELVIN KAHN et al., Defendants and Respondents. Docket No. 43440. Court of Appeals of California, First District, Division One. December 14, 1979. *808 COUNSEL Lew Warden, in pro. per., and Arthur L. Pretzer for Plaintiff and Appellant. Demanes & Bailey, Bruce A. Bailey, Moore, Clifford, Wolfe, Larson & Tr...
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Opinion Defendant, charged with a violation of Penal Code section 487, subdivision 1, grand theft, appeals his conviction after a jury trial of petty theft, a lesser but necessarily included offense. His contention on appeal is that the jury was improperly instructed. The only facts *Supp. 3set forth in the recprd on appeal are that defendant was charged with stealing four wooden beams from a con...
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Opinion THE COURT. * The Municipal Court for the Santa Cruz Judicial District of Santa Cruz County (hereafter Municipal Court) appeals from an order of the Superior Court of Santa Cruz County (hereafter Superior Court), made after an appealable judgment (Code Civ. Proc., § 904.1, subd. (b)), ordering the County of Santa Cruz to pay $1,500 on account of attorney fees to respond...
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Opinion We are called upon to decide whether the State of California, like other parties to litigation, is obligated to pay interest on a judgment obtained against it in a tort action. We hold that it is so obligated by applicable provisions of the California Constitution, and on that ground we affirm the judgment below. Plaintiffs in the underlying action (respondents here) sued the...
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Opinion This is an appeal by defendants Heinz Fuchsloch and Christine Fuchsloch from a mandatory injunction issued against them following a trial on a complaint filed against them by *854 plaintiffs Mitchel J. Ezer and Frances L. Ezer. The dispute results from the fact that plaintiffs and defendants are neighbors residing in a hillside area located in Pacific Palisades. The c...
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Opinion On June 7, 1973, Carol Anne Hershelman filed a petition to seal her juvenile court records pursuant to Welfare and Institutions Code section 781. The record consisted of her convictions in adult court in 1966 of two counts of robbery in the first degree in violation of Penal Code section 211 and assault on a peace officer in violation of Penal Code section 243. On January 18, 1967, Hers...
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Opinion This appeal arises out of juvenile court proceedings in which appellant was found to have violated Vehicle Code section 10851 by driving an automobile without the owner’s consent. Appellant was 16 years old at the time of the juvenile court proceeding; however, she contends she should have been allowed to waive her rights to be treated as a juvenile to the end that she would obtai...
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*876Opinion Defendant and appellant Richard Dean Porras appeals from the judgment of the Superior Court of Santa Clara County entered after he pled guilty to two violations of Health and Safety Code section 11378 (possession of LSD and methylenedioxy amphetamines for sale.)1 Appellant contends on appeal that the evidence was unlawfully obtained. In March of 1976, Officer Skalland and other members...
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Opinion Plaintiffs appeal a judgment dismissing their action after a general demurrer to the complaint had been sustained without leave to amend. The demurrer and ruling were based upon the running of the statute of limitations on plaintiffs’ medical malpractice action. In 1971 Daniel Christ had a vasectomy performed by the defendant doctors, as he wished to father no more children. A few mon...
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Opinion Thomas Jeffery Blake (Blake) was insured under a group policy of life insurance written for his employer by defendant Aetna Life Insurance Company (Aetna), which policy provided for basic coverage of $10,000 plus an equal amount payable for accidental death. Blake died, and the amended death certificate indicated that the occasion of death was “undetermined” as distinguished from possib...
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99 Cal.App.3d 946 (1979) 160 Cal. Rptr. 810 SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 614, SEIU, AFL-CIO, Plaintiff and Appellant, v. COUNTY OF NAPA, Defendant and Respondent. Docket No. 44500. Court of Appeals of California, First District, Division One. December 19, 1979. *948 COUNSEL Van Bourg, Allen, Weinberg & Roger and Stewart Weinberg for Plaintiff and Appellant. Stephen W. Hackett,...
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*970 Opinion Appellant Leonard Lathrop was charged by information, in two counts, with violations of Health and Safety Code section 11352 (transporting, selling, furnishing, or giving away cocaine). His motion to suppress evidence, pursuant to Penal Code section 1538.5, was denied by the trial court after an evidentiary hearing. He then entered a plea of guilty to count one, the court granted...
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99 Cal.App.3d 975 (1979) 160 Cal. Rptr. 650 THE PEOPLE, Plaintiff and Respondent, v. DANIEL STEVEN TILLERY, Defendant and Appellant. Docket No. 19327. Court of Appeals of California, First District, Division Four. December 19, 1979. *976 COUNSEL Patrick R. Murphy, Public Defender, Jeffrey Bradley, and Stephen Kaus, Deputy Public Defenders, for Defendant and Appellant. George Deukmejian, Attorney ...
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Opinion In an earlier but related action to that which is the subject of this appeal, respondents were attorneys of record for an insurance corporation which suffered a money judgment against it in appellants’ favor for some $12,000. When the corporation appealed in that matter, respondents sought to avoid the filing of an undertaking to stay enforcement on behalf of their clients (Code C...
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Opinion Petition by Richard Allison to mandate respondent court to dismiss Irene Allison’s orders to show cause on contempt and on modification of child custody. Pursuant to an order of the Supreme Court we issued an alternative writ. In June 1974 Richard and Irene Allison obtained from the Los Angeles Superior Court a judgment of dissolution of marriage, which awarded custody of the parties’...
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Opinion This is an appeal by respondent Carpenter throught the District Attorney of the County of Santa Barbara, from an order dismissing a criminal case against petitioner Jerry Richard Blake, pursuant to the provisions of Penal Code section 1389, and ordering petitioner returned to federal custody. 1 The essential question before us on this appeal is that of the appropriate interpretation o...
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Opinion Plaintiffs sued for breach of a contract whereby defendant agreed to sell them certain real property. The parties agree that a contract was entered into and that it provided “In the event that either party shall be required to institute legal action to enforce the terms of *Supp. 14this Agreement or rights arising out of this Agreement, the prevailing party shall be entitled to receive fr...
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Opinion Defendant was charged with a violation of Vehicle Code section 23102, subdivision (a)1 (driving under the influence of intoxicating liquor on Oct. 11, 1978) and, by amendment of the complaint, was charged with suffering a prior conviction of the same statute within the preceding five years, i.e., on January 14, 1976. On January 31, 1979, defendant withdrew his plea of not guilty and pled n...
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Opinion Defendants were jointly charged with: (count I) transportation of marijuana, in violation of section 11360 of the Health and Safety Code; (c^unt II) possession of marijuana for the *3 purpose of sale, in violation of section 11359 of that code; and (count III), possession of a controlled substance, in violation of subdivision (a) of section 11357 of that code. After their motions to s...
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Opinion Real party in interest Gerry Harmsma (hereinafter Seller) is a building contractor who brought an action in the municipal *7 court to recover for services performed and material furnished in remodeling the home of appellants John and Lorraine Beley (hereinafter Buyer). Buyer moved for summary judgment, which the municipal court denied. Buyer sought a writ of mandate f...
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Opinion This is an appeal from two annual review orders of the Los Angeles Superior Court sitting as a juvenile court continuing in force the disposition order of June 15, 1976, placing appellant’s daughter Audrey, a minor, in the custody of her maternal great-grandmother.1 *37On July 23, 1971, a petition was filed by the Department of Public Social Services (hereinafter DPSS) on behalf of appella...
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Opinion This is an action for wrongful death based on medical malpractice. (Code Civ. Proc., §§ 377, 340.5.) It was commenced by Noella Griffith, the widow of the decedent Robert Griffith, who alleged in her complaint that she was the sole surviving heir. (Code Civ. Proc., § 377.) Subsequently, the court permitted a first amended complaint to be filed, naming appellant Dwayne K. Washingto...
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Opinion Defendants appeal from their conviction for falsely reporting a crime to law enforcement officers. (Pen. Code, § 148.5.) The matter is before us on transfer from the Appellate Department of the Los Angeles County Superior Court. (Rule 62(a), Cal. Rules of Court.) The incident giving rise to the charges grew out of a labor relations dispute at American Biltrite Corporation (the plant)....
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Opinion Steven Gregory, a defendant in a pending misdemean- or prosecution for resisting arrest and battery upon officers of the California Highway Patrol, obtained a discovery order in the municipal court for production of the names and addresses of all persons arrested by the officers for similar charges during the preceding two years. . The Commissioner of the California Highway Patrol pet...
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Opinion By jury trial appellant was convicted of discharging a firearm at an inhabited dwelling house. (Pen. Code, § 246.) Outside the presence of the jury appellant had admitted five prior convictions. Appellant was sentenced to state prison. The victim, Wilma Harris, had known appellant for about 15 years. She had been a friend, sounding board or confidante. He sometimes became angry at her...
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Opinion In January 1978, defendant was charged with a violation of section 23102, subdivision (a) of the Vehicle Code—driving under the influence of alcohol. The complaint charged four prior convictions of the same offense. Defendant pleaded guilty, admitted one of the charged priors and filed motions to strike the other three. The motions were denied. Under the compulsion of these rulings defe...
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Opinion Plaintiff, Pacific Architects Collaborative (Pacific), appeals a granting of judgment on the pleadings and entry of summary judgment in favor of defendants on plaintiff’s first amended complaint wherein plaintiff sought to recover expenses incurred in preparing mobile trailers pursuant to a bid solicitation sent by the California Employment Development Department on behalf of the Office o...
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Opinion The Agricultural Labor Relations Board (ALRB or Board) appeals from an order of the San Diego Superior Court granting a preliminary injunction prohibiting ALRB agents from conducting “worker education” on the premises of the San Diego Nursery Company, Inc. (Employer) without the Employer’s permission. The superior court found “absent express statutory authorization, the ALRB ...
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Opinion In this case we wrestle unsuccessfully with the growing problem of the dual attack on adequacy of counsel by both direct appeal and writ of habeas corpus. The present practice presents this issue via both vehicles. This is creating an undue burden on the *146 courts without any resulting benefit to defendants or to the administration of justice. In this case the contention of inadeq...
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*156 Opinion The People seek a writ of mandate to compel respondent court to set aside its order returning certain valuable property previously seized by the police to real parties in interest, and to hold an evidentiary hearing to determine whether the property involved was stolen. On March 24, 1978, the Oakland police served a search warrant on the residence of real parties in interest, N...
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Opinion The question presented is whether a widow’s pension benefits are subject to state inheritance tax. Lewis D. Schley was vice president and general manager of Pacific Fruit Express Company when he retired on December 31, 1973, with 47 years and 11 months of service credited towards his retirement benefits. Upon his retirement, the company approved a pension of $1,742.80 a month...
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Opinion Appellant was tried and convicted by a jury of being a felon in possession of a gun (Pen. Code, § 12021 ). 1 He advances before us the following contentions: *174 1. The trial court abused its discretion by permitting him to be impeached by a prior felony conviction of kidnaping. 2. The trial court erred in giving an instruction on expert witnesses. (...
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Opinion Plaintiff Injectronics, Inc. took judgment against defendant Commodore Business Machines, Inc. for breach of contract. Defendant appeals, challenging the refusal of the court to make findings of fact and conclusions of law as requested by appellant. The cause was tried without a jury, and the court filed its memorandum of decision on August 25, 1978. A copy of the memorandum of decisi...
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Opinion Appellant John Eric Anjell was charged in a two-count information with having committed robberies (Pen. Code, § 211) 1 in Pleasant Hill and Orinda on October 22, 1977. It was also alleged in the information that he had been armed with and used a firearm during the commission of each offense, and that he had two prior felony convictions. The first prior was a 1971 Nevada conviction of ...
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Opinion On April 12, 1976, appellant was convicted by a jury of violating Penal Code sections 209 (kidnaping for the purpose of rob*207bery), 211 (robbery; second degree) and 288a (oral copulation). He was sentenced and incarcerated in the California Medical Facility at Vacaville.1 This judgment was appealed and affirmed in People v. Tureaud, 2d Crim. No. 28718, on December 3, 1976, and a petitio...
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Opinion Is a former justice court judge not eligible for retirement benefits, nonetheless eligible for assignment to any court as a “retired” judge? Such a judge, we conclude, is not “retired” and thus not eligible. Plaintiff Coleman E. Stewart appeals from a judgment entered on the pleadings on his complaint for declaratory relief against defendants Rose Elizabeth Bird, as Chairperson of the Judi...
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Opinion On the People’s appeal from an order of dismissal following the suppression of evidence, we must determine whether substantial evidence exists to support the trial court’s findings that the evidence seized was abandoned as a result of the threat of an illegal detention. We conclude the findings are adequately supported and the order granting suppression was proper; we affirm. Facts ...
Views: 5
Opinion On this appeal by the wife from an interlocutory judgment of dissolution, the contentions are that the court erred by; 1) setting a value of zero on the goodwill of the husband’s group medical practice pursuant to the withdrawal provision of the partnership agreement; 2) equalizing the community property by awarding her a *244 five-year promissory note of $24,430; and 3) awarding her ...
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*256 Opinion On Sunday, July 23, 1978, at approximately 11:30 a.m., a San Francisco residence was burglarized while the occupants were on a weekend camping trip. Four suspects, including appellants Donna M. Lewis and Stanley E. Perry, were apprehended near the scene of the crime, and charged with burglary (Pen. Code, § 459), a felony. Perry was also charged with receiving stolen property, a v...
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Opinion The Department of Motor Vehicles appeals from judgment granting the petition of Robert Buchanan for peremptory writ of mandate to direct the department to set aside its order suspending Buchanan’s driving privilege for six months for his refusal to submit to a chemical test to determine the alcoholic content of his blood following his arrest for driving a motor vehicle while under the i...
Views: 5
100 Cal.App.3d 303 (1979) 160 Cal. Rptr. 862 W.E.J. et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; F.L., Real Party in Interest. Docket No. 56347. Court of Appeals of California, Second District, Division Four. December 21, 1979. *305 COUNSEL Palmer & Bartenetti, Philip W. Bartenetti, Clark & Trevithick, Donald P. Clark and Dolores Cordell for Petitioners. N...
Views: 9
Opinion Following trial by jury Harvey Yoder was convicted of first degree burglary in violation of Penal Code section 459 and sentenced to state prison. He appeals from the judgment. 1 Facts At approximately 8:30 p.m. on May 27, 1978, defendant was apprehended while admittedly burglarizing the residence of Paul de Fonville in the Silver Lake area of the City of Los Angeles. The arresting...
Views: 9
Opinion The matter herein involves proceedings before the Workers’ Compensation Appeals Board (hereinafter WCAB), regarding the workers’ compensation claim of Gregory Robert Aliano against his employer, Canoga Chrysler-Plymouth, Inc., (hereinafter Canoga) which was insured by Eldorado Insurance Company (hereinafter Eldorado). Both Aliano and Canoga/ Eldorado assert error in the decision o...
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Opinion May a demurrer be sustained and the action dismissed with prejudice on the basis that there is another action pending when: (1) the first action is for dissolution of marriage, and (2) the second seeks to protect the community assets against defendant husband and several business associates not named in the dissolution action? We hold that there was not an action pending between t...
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Opinion The People have petitioned under Penal Code section 1538.5, subdivision (o) for a writ of prohibition or mandate to *388 compel reversal of an order granting the motion of defendant Linda Harris to suppress evidence. The issue presented is whether the decision in People v. Zelinski, 24 Cal.3d 357 [155 Cal.Rptr. 575, 594 P.2d 1000], should have retroactive application, other than...
Views: 1
Opinion This is an action for medical malpractice. Plaintiffs Bricke Joy Fraijo, a minor, by her guardian ad litem Dale *335 Boyd, Brande Lynn Leinart, Brad O’Neil Leinart, and Dale Boyd, as the surviving relatives of decedent, Annette Boyd, sought damages for the latter’s wrongful death. 1 Named as defendants were Hartland Hospital, a California corporation, ...
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Opinion The minor appeals from an order finding him to be a person coming under section 602 of the Welfare and Institutions Code. We modify the order and affirm it as so modified. The minor was originally charged in two counts: (count I) grand theft, in violation of subdivision 1 of section 487 of the Penal Code; and (count II) petty theft, in violation of section 484 of the Penal Code. After his ...
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Opinion Defendant Forgason was found guilty by a jury of voluntary manslaughter (Pen. Code, § 192, subd. 1); his wife, Barbara, was the victim. His appeal is from the judgment which was thereafter entered upon the jury’s verdict. No contention is made that the evidence placed before the jury did not constitute substantial evidence supportive of their verdict. (See People v...
Views: 7
Opinion Samuel Othello Bolden, Jr., appeals the order finding him mentally incompetent to stand trial based upon a jury verdict of incompetence. Bolden contends he was denied due process by Penal Code section 1368 which requires his attorney to give an opinion of his client’s competence, and was denied effective assistance of counsel when his counsel offered evidence of his incompetence althoug...
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Opinion ROTHMAN, J. * Petitioner filed a verified petition for a writ of prohibition pursuant to Penal Code section 999a. 1 In addition, petitioner lodged with this court certified reporters’ transcripts of a discovery hearing in the municipal court on May 31, 1979, and a preliminary hearing on July 2, 1979. Real party in interest, the People of the State of California, through their atto...
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Opinion In February 1977, Donald W. Tosh and Dean L. Gowdy (respondents) filed an application with the Central Coast Regional Commission for exemption from the permit requirements of the California Coastal Act of 1976 (Pub. Resources Code, § 30000 et seq.) for the subdivision of their land into four parcels, including construction of a water system and storage tanks. Respondents’ applicat...
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*400 Opinion The basic issue presented by this petition is whether the justice court or the superior court has the jurisdiction under Penal Code section 987.9 to grant funds to an indigent defendant to be used in the preparation of his defense. We hold that the jurisdiction lies with the superior court. Petitioner, Fred Maurice Anderson, seeks a writ of mandamus directing the Justice Court ...
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*407 Opinion Defendant Michael Robert Dehnel, in a joint trial with Tim Anderson and Dan Taylor, was convicted of conspiracy to commit murder. (Pen. Code, § 182, subd. 1.) We affirm. Facts Officer Paul Gebhardt of the Los Angeles Police Department joined the Ku Klux Klan in October 1976 as part of an assignment to infiltrate and report on various right-wing organizations. He participated ...
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Opinion This case involves the constitutionality of two provisions of California law imposing taxes on foreign insurance companies. The trial court found in favor of the plaintiff insurance company, holding that one of those provisions (the so-called retaliatory tax) was unconstitutional. It also made findings on other issues as set forth in its memorandum of intended decision as follows:...
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Opinion During an investigation of marijuana use by Sacramento city police officers in the spring of 1976, Officer Robert I. Gillies, Jr., admitted he smoked marijuana four or five times a month at social functions while off duty. When asked his intentions as to future use, Gillies said “I don’t intend to stop. I prefer it to drinking.” 1 Gillies was terminated from the police ...
Views: 1
Opinion Petitioner is the defendant in an action in respondent court by which the County of Riverside, real party in interest herein, seeks reimbursement of public assistance and establishment of child support for Lorina Amie, born May 8, 1964. Petitioner demurred to the complaint to the extent that it sought recovery of public assistance paid for the support of Lorina more than three years bef...
Views: 7
99 Cal.App.3d 429 (1979) 160 Cal. Rptr. 282 DEAN L. BROWN et al., Plaintiffs and Respondents, v. LEONARD PANISH, as County Recorder, etc., et al., Defendants and Respondents; LUKE L. CHENG et al., Real Parties in Interest and Appellants. Docket No. 55301. Court of Appeals of California, Second District, Division Five. December 6, 1979. *431 COUNSEL Michael S. Klein for Real Parties in Interest an...
Views: 2
Opinion This is an appeal from a judgment of dismissal after plaintiff and appellant James M. Witt refused to amend his first amended complaint when defendant and respondent Union Oil Company’s general demurrer was sustained with leave to amend. Plaintiff did file a document entitled “Second Amendment Complaint” but it was identical except for the title. Union Oil leased to plaintiff a gasoli...
Views: 3
Opinion Defendant Hosea Burdine 1 was charged by information with burglary (count I - Pen. Code, § 459) and attempted burglary (count II - Pen. Code, §§ 664, 459). Six prior felony convictions were also alleged. Represented by a deputy public defender, defendant pled not guilty and denied the priors. Subsequently, his motion to represent himself was granted. Prior to trial, private counsel wa...
Views: 7
Opinion In a six-count information defendant was charged with three violations of Penal Code section 207 (kidnaping), two violations of Penal Code section 288a, subdivision (c) (oral copulation) and one violation of Penal Code section 261, subdivision 3 (rape). It was further alleged that in the commission and attempted commission of all of the above offenses, defendant used a firearm. Defendant p...
Views: 0
99 Cal.App.3d 460 (1979) 160 Cal. Rptr. 164 SCOTT G. MILLER et al., Plaintiffs and Appellants, v. R.K.A. MANAGEMENT CORPORATION et al., Defendants and Respondents. Docket No. 18404. Court of Appeals of California, Fourth District, Division One. November 5, 1979. *462 COUNSEL Joseph J. Fisch for Plaintiffs and Appellants. Seltzer, Caplan, Wilkins & McMahon, Gerald L. McMahon and James B. Perso...
Views: 3
Opinion Bank of America National Trust and Savings Association (Bank) appeals a judgment against it which awarded attorney’s fees to John and Evelyn Huckell in their quiet title action. On February 10, 1969, Huckells bought a parcel of real property from Belle Scofield and opened an escrow at the Bank’s branch in Chula Vista. To evidence the unpaid balance of the purchase price, Huck...
Views: 1
Opinion A petition filed in San Luis Obispo County Superior Court alleged that appellant, Vicki H., a minor, came within the provisions of Welfare and Institutions Code section 602 1 because of the commission of an assault with a deadly weapon (Pen. Code, § 245, subd. (a)) and of a battery resulting in serious bodily injury (Pen. Code, §§ 242, 243) charged as felonies. Appellan...
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Opinion The present appeals are from a judgment confirming an arbitration award, and from a judgment denying, in part, a motion to tax costs—the two appeals having been consolidated by stipulation. Appellant Keith A. Tipton, and respondents Systron Donner Corporation and Information Data Systems (hereinafter IDS), entered into a written shareholder agreement on July 28, 1971. Under a...
Views: 2
Opinion Petitioners are defendant Tahoe Forest Inn and its attorneys (hereinafter collectively referred to as defendants) in an action for personal injury brought by real party in interest (plaintiff) in respondent superior court. Defendants seek a prerogative writ annulling the effect of the superior court’s order imposing sanctions upon them *511 for failing to produce their expert witness ...
Views: 2
.Opinion The wife appeals from an order 1 which retroactively modified a prior divorce decree child support provision to correspond to the child support provisions arising out of a subsequent enforcement suit brought by the wife pursuant to former Code of Civil Procedure section 1689, a part of the Revised Uniform Reciprocal Enforcement of Support Act of 1968 2 (RURESA). The wife contends t...
Views: 8
Opinion Defendant, Ricky Allen Carpenter, appeals from a judgment of conviction entered on a jury verdict finding him guilty of first degree murder (Pen. Code, § 187), petty theft (Pen. Code, § 484) and use of a knife (Pen. Code, § 12022, subd. (b)). He contends that; 1) the prosecution committed prejudicial misconduct in the opening argument; 2) the court erred by giving an incomplete instruct...
Views: 2
Opinion Wynn, Walker, Hutchins and Taylor were charged with conspiracy to transport and sell PCP, and with transportation and sale of PCP; Hutchins and Taylor alone were charged with possession for sale of PCP. On motion of Hutchins and Taylor pursuant to section 1538.5, Penal Code, the trial court ordered suppressed evidence recovered as a result of their arrest. The People appeal from order supp...
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Opinion Defendant was charged as an ex-felon with possession of concealable firearm. During hearing on his motions pursuant to Penal Code section 1538.5 and to quash and traverse search warrant, *418 defendant moved to compel disclosure of an informant’s identity. At the conclusion of the hearing the court granted the motion whereupon the prosecutor requested an in camera hearing which the ...
Views: 3
*427 Opinion Plaintiff Jack A. DeGrandchamp appeals from a summary judgment in favor of defendant Texaco, Inc., on plaintiffs first cause of action for declaratory relief. The complaint includes eight causes of action which, according to paragraph I of the first cause of action, all “grew out of the same set of facts, events, and circumstances,” and were joined “due to the fact t...
Views: 11
Opinion Petitioner Carl F. Jackson appeals from the judgment denying a writ of mandate. The petition sought to annul a decision of the City Council of the City of Pomona which suspended him from his duty as a police sergeant without pay for a period of one month and demoted him to the rank of senior patrolman. The gravamen of the petition was that on several bases the council “proceeded i...
Views: 0
Opinion This petition for a writ of habeas corpus involves the constitutionality of the provisions exempting nonmanagerial employees without financial interest in their place of employment from criminal liability for exhibition of obscene matter (Pen. Code, § 311.2, *456subds. (c) and (d).)1 Petitioner contends that section 311.2, as applied, impermissibly discriminates against other nonmanagerial...
Views: 0
Opinion This appeal involves the validity of a prosecutor’s determination of a defendant’s ineligibility for diversion pursuant to Penal Code 1 section 1000, subdivision (a)(3), 2 based solely on suppressed evidence. We will conclude that evidence that has been ordered suppressed following a successful motion under section 1538.5 cannot support such a determination. ...
Views: 1
Opinion This appeal, from a judgment denying relief in mandamus, poses the question whether real party in interest, Los Angeles Police Revolver and Athletic Club, Inc. (hereafter Club), was properly granted permission by respondents, City of Los Angeles and Los Angeles City Planning Commission (hereafter City and Commission), to build two relocatable classrooms in a building on a portion ...
Views: 0
Opinion These consolidated appeals by defendants, Marvin and Helane Short and Howard and Rosalind Gold, are from partial summary judgments on the first cause of action in the respective complaints of plaintiffs, James Talcott, Inc. and M. Varela, in the total amounts of $104,613.43 and $245,246.03. 1 The appeals lie. (Code Civ. Proc., § 437c.) *507 Defendants, Sho...
Views: 5
Opinion Plaintiff Betty E. Bernd appeals from a judgment denying her petition for a writ of mandate seeking to set aside an administrative decision suspending her notary public commission for a period of six months. The commissioning authority, respondent Secretary of State, based its disciplinary action on plaintiffs failure to “fully and faithfully discharge” the duties required of a no...
Views: 0
Opinion The City of Santa Ana appeals from an order denying its petition for administrative mandamus seeking review and annulment of a resolution of the City Council of the City of Garden Grove amending its general plan by redesignating a parcel of land on which the boundaries of the City of Santa Ana abut from low density residential to industrial. The thrust of the petition was that the...
Views: 13
Opinion In this action petitioner seeks a writ of mandate to compel respondent court to vacate its order denying petitioner’s motion to replace John B. Koughan as guardian ad litem for petitioner’s minor child. The child has been named as a plaintiff in an action to establish paternity, for child support, and for reimbursement of welfare funds expended by the County of Orange for the support of...
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Opinion The Regents of the University of California appeal a judgment in favor of the City of Los Angeles upholding the imposition of a “sewage facilities charge” against the Regents. The ordinance establishing a “sewage facilities charge” for all users of the city sewer system was enacted by the city in 1970 to provide funding for public sewer construction in Los Angeles. Payment of the char...
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Opinion This is an appeal from the judgment and sentence imposed after a conviction of one count of robbery. The appellant was one of three persons charged with the May 21, 1977, robbery of Jose Arreola and Miguel Diaz in Lemoore. The other two people charged by the information filed on June 30, 1977, were Cynthia Zeno and Andrew Gordon. Zeno’s case was severed and set for separate trial....
Views: 2
*572 Opinion Plaintiff Clyde Foster filed the within action against defendant Gillette Company to recover damages for personal injuries alleged to have been caused by a defective product manufactured by defendant. The jury returned a verdict in favor of defendant, and Foster appeals. The occurence giving rise to this litigation took place in Foster’s apartment at 172 Sixth S...
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Opinion This is a many-faceted attack on those California Health and Safety Code sections which prohibit the private possession and use of marijuana by adults. It takes the form of a petition for declaratory and injunctive relief brought by the National Organization for the Reform of Marijuana Laws (hereafter NORML) and 32 individual taxpayers against the Chief of Police, City Attorney, S...
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Opinion Appellant was convicted of a violation of Penal Code section 4574 (possession of a dangerous weapon while confined in the county jail). He admitted a prior burglary conviction in San Bernardino County for which he served a prison term. Appellant makes several contentions on appeal. *642 First, appellant contends that the trial court committed error in failing to prop...
Views: 4
Opinion Defendant and appellant James William Zimmerman appeals from the order modifying his probation. * Appellant contends on appeal that evidence which has been illegally seized may not be used to modify probation. As a result of a conviction in the Superior Court of Contra Costa County on July 14, 1976, for robbery and assault with a deadly weapon, *675 appellant was placed on three y...
Views: 4
Opinion Joyce Grunauer, daughter of decedent Eudice Friedman and a beneficiary under decedent’s will, filed a petition in the probate proceeding for determination of interests under the will and for interpretation of the will. (Prob. Code, § 1080.) The petition sought a determination whether Joyce’s filing of a complaint for damages, a constructive trust and other relief against Daniel Friedman...
Views: 1
*825 Opinion Downtown Los Angeles Motor Distributors, Inc. (erroneously sued herein as Downtown L.A. Motors and hereinafter referred to as Motors) appeals a judgment in favor of plaintiff Zina Zhadan, entered pursuant to jury verdict, in this action to recover compensatory and punitive damages for the conversion of an automobile. Facts Plaintiff sought compensatory and ...
Views: 7
*3 Opinion This action challenges the residency requirement of the California victims of crime statute, Government Code sections 13959-13969.1. While vacationing in San Francisco, appellant, a citizen of the State of New York, was shot in the leg by a person unknown to him. He was hospitalized for surgical and medical treatment in San Francisco and then returned to his home. He filed an app...
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Opinion Defendant Harnischfeger Corporation has made a motion to dismiss plaintiff’s appeal from a judgment in defendant’s favor on the grounds that the appeal is now moot and that appellant has failed to diligently prosecute its appeal. Statement of Facts On March 1, 1972, an accident occurred at one of Southern California Edison Company’s (Edison) electric generating plant...
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Opinion Defendant was charged with possession of marijuana for sale, a violation of Health and Safety Code section 11359. Two pri- or Health and Safety Code violations and a prior Penal Code section 487, subdivision 2 violation were alleged by amendment. *39 Defendant filed a motion to quash and traverse the search warrant and a Penal Code section 1538.5 motion. Both motions were heard and ...
Views: 1
Opinion Roman Espinoza, Jr. (Espinoza) was convicted by a jury of robbery (Pen. Code, § 211; all references are to the Penal Code unless otherwise specified) with the finding he personally used a firearm in the commission of the offense (§ 12022.5). He was sentenced to prison for five years. In his appeal from the judgment he claims his lawyer was incompetent and the court should have instructe...
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Opinion Plaintiff sued to recover for personal injuries suffered when she fell out of bed while a patient at defendant Good Samaritan Hospital (hereafter hospital). Hospital raised a statute of limitations defense by answer and by motion for summary judgment. This is an appeal by plaintiff from a judgment for hospital following the granting of the summary judgment motion. Plaintiff’s...
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Opinion On September 1, 1978, Vincent Barreda Espinoza (defendant) was charged by information with burglary (Pen. Code, § 459), allegedly committed August 10, 1978. As the basis for enhancement of defendant’s sentence should he be convicted of the charged offense, it was also alleged in the information that defendant had suffered three prior felony (burglary) convictions (one on Dec. 26, 1975, ...
Views: 11
Opinion Introduction Defendant Gene Moultrie (hereinafter defendant and/or Moultrie) appeals from a judgment of conviction following a jury trial of five counts of robbery in violation of Penal Code section 211. 1 Facts The evidence adduced at the trial is substantially as follows: On March 23, 1978, at about 3 p.m., while witness Carol Shaw was working on the switchboard at Brewmatic...
Views: 3
*116Opinion Yamada Brothers appeals from a judgment of dismissal after the superior court sustained the demurrers of the Agricultural Labor Relations Board (ALRB) and real party in interest, United Farm Workers of America (UFW), to Yamada’s petition for writ of mandamus. At issue is whether an employer may seek judicial review by way of mandamus of an ALRB order extending the certification of a l...
Views: 1
Opinion The People petition for a writ of prohibition or mandate to set aside an order issued by the trial court after real parties in interest successfully moved to suppress evidence obtained during a warrantless search of an automobile. We will issue the writ. The evidence in question consists of a .44 magnum pistol and a sawed-off shotgun found in a Pinto automobile driven by defendant Mic...
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Opinion The defendant placement agency terminated the status of plaintiffs, husband and wife, as prospective adoptive parents when the agency removed the minor child, Sarah Kelly, from their home. Husband and wife appeal from the denial of their petition for writ of mandate, seeking an order reinstating them as prospective adoptive parents and returning the minor child to the home. Following ...
Views: 1
Opinion Rex Anderson appeals from a judgment of dismissal entered upon sustaining demurrers to his amended complaint without leave to amend on the ground that the complaint was barred by the statute of limitations. On June 5, 1967, appellant entered into a written contract with defendant and respondent James Shade, an architect who designed and supervised the work of constructing an ...
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Opinion Easy Street Theatre is—or was, until the present action abated it out of existence—a nightclub in San Mateo, California, which featured pornographic films, nude dancing, and hired female companionship. Liquor was also served, usually at exorbitant prices. On September 19, 1975, the District Attorney of San Mateo County filed a complaint against Easy Street to abate it as a pu...
Views: 4
Opinion Defendant, charged in a grand jury indictment with violating Health and Safety Code section 11352 (transporting, selling and furnishing, or giving away heroin), was convicted by a jury as charged and sentenced to state prison. He now appeals. Statement of Facts The case involves a heroin purchase on February 16, 1977, between the defendant and a paid undercover police informer, Steven R...
Views: 1
Opinion Petitioner, an incorporated law firm, contends that the respondent Workers’ Compensation Appeals Board (WCAB) erred when it (1) reduced the amount of attorneys fees agreed to by the injured worker and his or her attorney, petitioner herein, when the agreed fees were within the WCAB’s own guidelines for setting attorneys fees, and (2) without prior notice awarded petitioner less than the a...
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Opinion Plaintiff Carson Redevelopment Agency commenced eminent domain proceedings against defendants Edward B. Wolf, Inc., a corporation, and Harriet Wolf, among others. The subject property was owned by Harriet Wolf and leased to Edward B. Wolf, Inc. An interlocutory judgment was entered pursuant to the stipulation of the parties, awarding $265,000 as reasonable compensation for the land take...
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Opinion Statement of the Case Petitioner James Morales seeks a writ of mandate commanding respondent court to vacate its order compelling him to answer interrogatories. The interrogatories were propounded by real party Teresi Trucking, Inc., one of several defendants in a wrongful death action brought by petitioner and his three minor children to recover damages resulting from the death of Phylli...
Views: 0
Opinion Appellant challenges the extension of his term as a mentally disordered sex offender (MDSO) made pursuant to Welfare and Institutions Code section 6316.2. 1 He contends that, notwithstanding the absence of an express statutory requirement that amenability to treatment is a prerequisite to an order extending his term of commitment, both statutory construction and constitutional *299 ...
Views: 6
Opinion Patricia Morales appeals from a judgment of dismissal of her complaint following the sustaining of respondents’ demurrers without leave to amend, and from the granting of respondents’ motion for judgment on the pleadings. Appellant’s complaint alleges damages resulting from a breach of duty owing to her by respondent law firm, Field, DeGoff, Huppert & MacGowan. Appellant Patr...
Views: 4
Opinion Peter James Garvey appeals from a judgment of imprisonment which was rendered after a jury found him guilty of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)). After spending some hours drinking in a bar, appellant attacked without warning another patron who was making ready to leave. The victim fell to the floor and appellant kicked him in the...
Views: 1
Opinion The action in the trial court was for personal injuries suffered by a pedestrian when a motorist jumped an angling curb where the roadway narrows. Among the defendants sued was the State of California, and, with reference to the state and the other public entity defendants, it was alleged that they were “the builders, owners, operators and maintainers” of the public road at the place wh...
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Opinion This is an appeal from a judgment of the Superior Court of Los Angeles County granting in part and denying in part a peremptory writ of mandate. Defendant Department of General Services *17 (hereafter the Department) appeals from the judgment granting the petition of the writ while plaintiffs (hereafter petitioners) cross-appeal from the denial of the petition. F...
Views: 2
Opinion Plaintiff and appellant Elmer Jeffrey Moore appeals the summary judgment in favor of defendant and respondent City of Torrance (City). City’s first motion for summary judgment was heard and denied. 1 The reason given by the trial court was that California Government *69 Tort Liability (Cont.Ed.Bar 1964) pages 234-235 concluded that Civil Code section 846 immunity did not apply to ...
Views: 6
Opinion Larwin-Southern California, Inc. (plaintiff) filed an action seeking declaratory relief and specific performance against JOB Investment Company, Inc. and A. C. Nejedly (defendants). The controversy leading to this litigation arose when defendants contracted in writing 1 to sell to plaintiff a certain parcel of land but then failed to go through with the transaction. As a consequence o...
Views: 6
Opinion Appellant, a physician, was tried and convicted in a jury trial of 23 counts of violating section 11154 of the Health and Safety Code by prescribing controlled substances not in the regular practice of his profession and for persons not under treatment for a pathology or condition other than addiction. He appeals the judgment, assigning three grounds of error: (1) insufficiency of evidence...
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Opinion This is an appeal by the People from the judgment of the justice court dismissing the above-captioned case for lack of jurisdiction based upon a finding that the federal government by Public Law No. 83-280 (67 Stat.588 (Aug. 15, 1953)), and its regulations, had preempted control of eligible Indians fishing on the Hoopa Valley Reservation. It is conceded by the People that defendant, Kennet...
Views: 0
Opinion J. Defendant was charged with possession for sale of PCP (Phencyclidine) and manufacturing PCP. The People appeal from order suppressing evidence and dismissing the case. On September 1, 1977, a search warrant was issued for certain described premises calling for various items used in the illegal manufacture of PCP; the search warrant was executed on September 1, 1977. A large quantit...
Views: 2
Opinion The Department of Motor Vehicles (DMV) appeals from a judgment granting a writ of mandate in ordering DMV to reverse its decision suspending Roderick Lyle Reed, Jr.’s (Reed) driving privilege under Vehicle Code section 13353, subdivision (b). The section provides that if a person refuses an officer’s request to submit to, or fails to complete, a chemical test, DMV, upon receipt of the...
Views: 0
Opinion Wilshire Insurance Company (Wilshire) and Mark Herman (Herman) appeal from denial of their motions to set aside a *Supp. 3summary judgment entered against them following forfeiture of a bail bond. They argue that the order appealed from was entered at a time the court lacked jurisdiction because at that time a previous appeal from an order denying a motion to vacate the forfeiture was pend...
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*Supp. 9Opinion Defendant was charged in a two-count complaint, along with several coemployees, with violating Penal Code1 sections 314, subdivision l2 (count I) and 647, subdivision (b) (count II). After her two motions were denied, defendant entered into a plea bargain, one of the terms of which was that she could pursue by appeal the same attacks made in her two motions. She pleaded nolo conten...
Views: 4
Opinion Appellant was convicted of a violation of Penál Code section 647, subdivision (b) (soliciting or engaging in an act of prostitution). Appellant contends that the case of Pryor v. Municipal Court (1979) 25 Cal.3d 238 [158 Cal.Rptr. 330, 599 P.2d 636], and the Supreme Court’s interpretation of lewd or dissolute therein must apply. We hold to the contrary. In Pryor, supra, the Supreme Court c...
Views: 0
Opinion Plaintiff, Ricardo S. Centeno, M.D., sought a declaratory judgment, injunctive relief and damages from defendant, Roseville Community Hospital. After trial without a jury, the trial court entered judgment for the hospital on all causes of action, and plaintiff appeals. We affirm. *66Statement of Facts After a series of problems had developed at the hospital in the providing of radiology s...
Views: 0

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