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All Reporters → cal-app-lexis → Volume 1982

Opinions in cal-app-lexis Volume 1982

Opinion Defendant, Jean Fabert, appeals 1 from a judgment entered on a jury verdict after her second trial 2 finding her guilty of voluntary manslaughter (Pen. Code, § 192, subd. 1) with the use of a firearm (Pen. Code, § 12022.5) of her fourth husband, Anthony Fabert. Her major contention on appeal is that her constitutional right against self-incrimination was violated by the admission of...
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Opinion Plaintiff, Marcia Ann Lowman, appeals from the judgment entered against her as a result of an order granting the motion for summary judgment made by defendant, Los Angeles County (County). The sole issue that needs to be addressed is whether an action for the wrongful death of a prisoner may be maintained against a public entity. Facts This case arises out of the death of plaintiff’...
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Opinion We observe initially that respondent Placer County Probation Department has filed no brief herein. Rule 17 (b), California Rules of Court provides in pertinent part: “If the respondent’s brief is not filed within the time prescribed .. . the clerk of the reviewing court shall notify the parties by mail that the case may be submitted for decision on the record and on the appellant’...
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Opinion We consider on this appeal whether a plea bargain to strike a prior conviction precludes use of the conviction to aggravate the sentence. We conclude that it does not and affirm the judgment. *632 Facts Defendant Frank Alvarez was charged with the taking of a pickup truck, in violation of Vehicle Code section 10851, and with the infliction of bodily injury while driving under th...
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Opinion Santa Ana Tustin Community Hospital’s (SATCH) petition for writ of mandate (Code Civ. Proc., § 1094.5) sought court review of certain actions (taken by the Board of Supervisors of Orange County (Board), the Orange County Health Officer, L. Rex Ehling (Health Officer), the Human Services Agency of Orange *647 County (Agency) and its director, Margaret C. Grier (Directo...
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Opinion Ancillary to his appeal in No. 1 Crim. 21660, defendant Leo J. Artis has petitioned for a writ of habeas corpus, alleging incompetence of counsel. 1 (People v. Pope (1979) 23 Cal.3d 412, 428 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) *701 The petition alleges that petitioner’s trial counsel failed to conduct a reasonable investigation which would have revealed the jail...
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Opinion Appellant insurer has appealed from a judgment of dismissal entered following its failure to amend its complaint for damages within the time allowed after the trial court had sustained the defendant city’s demurrer with leave to amend. The demurrer had been sustained on the ground that, more than six months had elapsed between the date of rejection of the claim for the damages all...
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Opinion Appellant Nathan Dewey Murphy stands convicted, after jury trial, of first degree murder with use of a deadly and dangerous weapon. In the course of his trial, evidence was admitted of certain statements which appellant had made in the presence of a police officer. Appellant’s sole contentions of error are (1) that the statements were inadmissible because they were not preceded by a ...
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Opinion Defendant has appealed from an order suspending imposition of sentence, and placing him on probation for three years (Pen. Code, § 1237, subd. 1). It was entered following his plea of guilty to possession of marijuana in violation of section 11357, subdivision (a) of the Health and Safety Code. He seeks review of the trial court’s order denying his motion to suppress evidence. (Pen. Cod...
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Opinion Defendant has appealed from a judgment of conviction entered upon a jury verdict which found him guilty of attempted arson in *773 violation of section 455 of the Penal Code. 1 He was sentenced to eight months in state prison, to be served consecutively with a prior uncompleted sentence for rape, and given credit for one day spent in custody in county jail. On November 6, 1979, th...
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Opinion Viewed most favorably to the People who prevailed below, the evidence establishes that shortly after 5 p.m. on February 4, 1978, defendant Moringlane and a codefendant Hector Beltran, 1 while in an automobile owned by defendant, chased a vehicle containing Javier Francisco Silva and Michael Ruiz Rico at speeds up to 80 miles per hour in the City of Chino; that numerous rifle shots wer...
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Opinion The common legal question presented in both of the appeals in these two civil actions, which have been consolidated on the *845 court’s own motion, is whether the term “litigation” as defined in the vexatious litigants statute (Code Civ. Proc., § 391, subd. (a)) 1 includes civil actions or proceedings in federal courts located in California as well as civil...
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*855 Opinion This appeal is from the denial of a petition for writ of mandate, in which appellant John Saraceno sought reclassification by respondent Foothill-De Anza Community College District as a full-time regular employee, and other related relief. I Appellant was hired as an assistant basketball coach at De Anza Community College in the fall of 1974, and served in ...
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*865 Opinion Appeal by plaintiffs in a wrongful death action from a judgment in favor of defendant. We affirm. International Harvester Company (International) builds, among other things, a vehicle known as the 1600 series Loadstar truck consisting of only an engine, cab and chassis. These skeleton vehicles are sold to commercial users who install a body or other additions ac...
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Opinion Plaintiff taxpayer appeals from an adverse judgment in its action to recover taxes. We affirm. Under the California use tax law, a merchant who imports into the state merchandise for sale would ordinarily pay no tax under that law but would pay a sales tax on the value of the merchandise if and when sold. However, if such a merchant imports merchandise under that theory and t...
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Opinion This is an appeal from a judgment determining that a homeowners insurance policy issued by American Motorists Insurance Company (plaintiff or American Motorists) to John G. Murnane, Sr. and Sherrill Murnane does not provide liability coverage for an injury to Darryl Eugene Cowan, a minor, resulting from the act of the Murnane’s minor son, Richard Glen Murnane, in intentionally str...
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Opinion The trial court issued a permanent injunction against defendants’ foreclosing a deed of trust encumbering a leasehold estate on account of a transaction claimed by defendants to trigger the “due on” clause contained in the deed of trust. Defendants appeal (Code Civ. Proc., § 904.1, subd. (f)) and will hereafter be referred to as the appellants. *891 Based on formal f...
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Opinion Today we attempt what three previous appellate opinions have failed to do, to lower the curtain on litigation begun over ten years ago. At issue is an order sustaining general demurrers without leave to amend on the ground of res judicata. Because we find the appeal frivolous and motivated solely to harass and annoy, we not only affirm the judgment but impose financial sanctions. *93...
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*400 Opinion This case calls for the interpretation of Public Utilities Code section 21252, subdivision (a). 1 More precisely, the question is whether the section permits a valid warrantless arrest for a misdemean- or proscribed by the state Aeronautics Act not committed in the arresting officer’s presence. 2 We conclude that the language of the section so permits-, provided the Director ...
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Opinion This petition, by a juvenile, challenges a determination that he is not a fit and proper subject to be dealt with under the Juve *419 nile Court Law. He raises three claims which focus upon operation of recent amendments to Welfare and Institutions Code section 707. We accept his contention that the presumption of unfitness contained in subdivision (c) of section 707 ...
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Opinion Defendants appeal from an adverse judgment in an action for personal injuries; plaintiffs appeal from an order taxing costs. We affirm both the judgment and the order. The Appeal From the Judgment Plaintiff Terry Ellenberger was injured in an automobile accident. He sued for damages and his wife Dwana joined seeking damages for loss of consortium. Both defendants stipula...
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Opinion James Johnson appeals an order denying his request for declaratory judgment and injunctive relief by which he sought to compel the Santa Clara County Sheriffs Department to permit inspection of all information acquired by the department pursuant to appellant’s application for special deputy sheriff status. *437 Appellant Johnson, a security guard for the Santa Clara County Central S...
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127 Cal.App.3d 476 (1982) 179 Cal. Rptr. 595 CLARENCE A. LESKO, Petitioner, v. THE SUPERIOR COURT OF MARIN COUNTY, Respondent; JOSE LOPEZ, a Minor, etc., et al., Real Parties in Interest. Docket No. 53247. Court of Appeals of California, First District, Division Three. January 7, 1982. *478 COUNSEL D. Stuart Candland and Craddick, Candland & Conti for Petitioner. No appearance for Respondent....
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Opinion We review a decision of the Workers’ Compensation Appeals Board (Board) approving a finding by a workers’ compensation *516judge that the death of an employee of the California State Polytechnic University at Pomona arose out of her employment. Decedent was employed as a stenographer at the university. She worked in an office on the campus which apparently contained administrative offices...
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Opinion William Charles Ottombrino was charged with rape, robbery, attempted murder and other offenses involving victim Caridad Woolsey, together with kidnaping, rape and oral copulation involving victim Teresa Marshall. A videotape was made at Ottombrino’s arraignment, he was photographed by the police, and his picture was shown to the victims at a photo lineup. Both victims selected Ottombr...
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Opinion Ramon Herrera appeals from the denial of a motion brought by the Board of Prison Terms to recall the sentence imposed for his conviction on four counts of robbery and one count of attempted robbery. *594 Appellant was convicted in a jury trial on four counts of robbery and one count of attempted robbery (Pen. Code, §§ 211, 211/664) 1 and was also found to have used a firearm in ea...
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Opinion This is an appeal by the County of Santa Clara from a summary judgment ordering the refund of property taxes collected from respondent, GeoMetrics. As refined by stipulation, the sole question on appeal is whether the County may impose an unapportioned ad valorem property tax upon aircraft owned by a corporation domiciled in the county, but located physically in foreign countries and en...
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Opinion Appellant Louisa Escamilla appeals from an interlocutory judgment of marital dissolution, challenging the trial court’s division of community assets, the interest rate imposed upon a future payment appellant is to make to respondent, and conditions imposed upon an award of the exclusive possession of the family home to appellant as child support. For the reasons to be explained, w...
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*979Opinion Appellant, Randall James Prysock, aged 16 at the time of the offenses charged herein, was found guilty by jury of first degree murder of Iris Donna Erickson as charged in count one of an amended information. The jury also returned special findings that the murder was (1) wilful, deliberate and premeditated, and was personally committed by appellant during the commission of a robbery; ...
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*1051 Opinion This petition for writ of mandate by Del Monte Corporation, the employer of an injured worker, challenges the overruling of its demurrer to the cross-complaint of a third party defendant. The cross-complaint seeks to reduce any award to plaintiff by the amount of workers’ compensation benefits provided by petitioner. Petitioner has not sought reimbursement for compe...
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Opinion Petitioner Hazon-Iny Development, Inc. (hereinafter Hazon) appeals from a judgment denying its petition for a writ of mandate *4 commanding respondents City of Santa Monica, its mayor and city councilmen (all of whom are collectively hereinafter sometimes referred to as City) and respondent William Rome, the chief building officer (hereinafter Rome), to reinstate a bu...
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Opinion On June 6, 1978, the voters of California adopted article XIII A (Prop. 13) to the California Constitution. Sections 4 and 5 of *17 the article read as follows: “Sec. 4. Cities, Counties and special districts, by a two-thirds vote of the qualified electors of such district, may impose special taxes on such district, except ad valorem taxes on real property or a transa...
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*30 Opinion I Procedural Background Defendants appeal from a judgment adverse to them that followed the trial court’s order granting respondent’s motion for summary judgment; appellants’ motion for reconsideration of that order was subsequently denied. On November 3, 1980, appellants filed their notice of appeal from the order granting summary judgment, from the de...
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Opinion At issue is the applicability of the franchise tax deduction authorized by Revenue and Taxation Code section 24405. Appellant, Long Beach Firemen’s Credit Union, (hereinafter sometimes referred to as the credit union) sought refund of corporate franchise *53taxes for the years 1975 and 1976, on the basis that the foregoing section authorized the deduction of certain income received from i...
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Opinion John Montalvo appeals the judgment entered following a jury trial in which he was convicted of forcible rape, sodomy and false imprisonment, with the use of a knife. (Pen. Code, §§261, subds. (2) and (3), 286, subd. (c), 236, 12022, subd. (b).) He contends (1) that the testimony of the complaining witness was inherently improbable and therefore insufficient to support the verdict of con...
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Opinion The question presented is whether a judgment is valid when it is inadvertently signed by the trial judge but correctly reflects the undisclosed stipulation of counsel. We hold that the answer depends upon the validity of the stipulation; if valid, such a judgment cannot be attacked on appeal; if invalid, the judgment is correctable. (2) Defendant appeals from an order denying...
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Opinion Peter Michael Peters, Jr., was charged in a three count information with robbery in violation of Penal Code 1 section 211 (Count I) with a gun use allegation within the meaning of section 12022.5, receiving stolen property in. violation of section 496, subdivision 1 (Count II), and fraudulent possession of blank checks with intent to pass and defraud another in violation of section 47...
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Opinion Dennis Michael Reagan appeals from a judgment of conviction entered upon his plea of guilty to one count of robbery (Pen. *95 Code, § 211) 1 and admission he used a firearm in committing the offense (§ 12022.5) following the partial denial of his section 1538.5 motion. As we shall explain, we conclude the identification of Reagan by the victims and a witness is free from the taint o...
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*106 Opinion Ruben Moreno appeals from a judgment of conviction of assault with a weapon or with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)), 1 contending sentencing error requires either a reversal of the sentence for further proceedings or a modification of the judgment. We have concluded his arguments, with one exception, are without me...
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Opinion Appellant Wells Fargo Bank, N.A., the then duly designated testamentary trustee (Trustee) of several trusts created under the will of decedent, Abraham L. Gump,1 appeals from that part of the judgment settling its eighth annual account partially disallowing its requested compensation on the basis of the Trustee’s negligent mismanagement of certain trust assets. Respondents, five of the si...
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Opinion At 7 o’clock in the morning on Christmas Day, 1979, someone broke into Claire P.’s apartment, tied her hands and raped her, and left with her wallet and a tape recorder. After trial by jury, George Marshall Wilson was convicted of burglary, robbery, and rape for the offenses committed that day. The evidence against him was substantial: an envelope bearing his name and address was ...
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*141 Opinion Petitioner North American Asbestos Corporation challenges the denial of its motions to quash service of process. Petitioner’s four petitions, considered herein collectively, raise the question of whether a dissolved Illinois corporation may be sued in California for asbestos-related injuries when the dissolution took place more than two years before the suits were fi...
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Opinion Defendants George A. Cavalletto, George A. Cavalletto, Jr., and Pattie J. Cavalletto, are the owners and lessors of real property in Roseville, California. Defendant Carrows Restaurants, Inc. (Car-rows), leased the property in May of 1978 and commenced to build a restaurant. On August 9, 1978, Carrows entered into a construction contract with Frank V. Favaloro, 1 doing ...
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Opinion Statement of the Case On August 2, 1977, plaintiffs and appellants, David and Debra Godfrey, filed a complaint in the Superior Court of Stanislaus County, *164 naming as defendants Joseph and Barbara Giannobile, Jack Heaton, doing business as Heaton Pest Control, Irwin Steinpress, doing business as Steinpress Realty & Development, and Great Western Savings and Lo...
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Opinion The City of Anaheim (city), legally uninsured, seeks review of an order of the Workers’ Compensation Appeals Board (Board) denying city’s petition for reconsideration and, in effect, determining that during the period January 1, 1975, to March 27, 1979, Fred G. Davis (the applicant), employed by the city as a police detective, suffered an industrial injury “consisting of colitis.”...
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128 Cal.App.3d 212 (1982) 180 Cal. Rptr. 125 CITY OF SANTA ANA, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and THOMAS E. TAYLOR, Respondents. Docket No. 25973. Court of Appeals of California, Fourth District, Division Two. January 25, 1982. *215 COUNSEL Kegel, Tobin & Hamrick and Frederick T. Guckenberger for Petitioner. Greene & Diamond and Harold L. Greene for Respondents. OPINI...
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128 Cal.App.3d 225 (1982) 181 Cal. Rptr. 404 M.C.A., Plaintiff and Appellant, v. THE STATE OF CALIFORNIA, Defendant and Respondent. Docket No. 24002. Court of Appeals of California, Fourth District, Division One. January 26, 1982. *226 COUNSEL Charles L. Goldberg and Goldberg & Link for Plaintiff and Appellant. Donald L. Clark, County Counsel, Lloyd M. Harmon, Jr., Chief Deputy County Counsel...
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Opinion Plaintiffs Brian G. Hutton and Albert S. Ruddy (hereinafter Buyers) brought this action against defendants Mike and Sheina Gliksberg (hereinafter Sellers) to compel specific performance of a contract for the purchase and sale of real property. The trial court granted a judgment in favor of Buyers, compelling Sellers to convey the property and awarding incidental compensation. Sell...
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Opinion The question presented in this appeal is whether a probationer can be sentenced to prison upon revocation for a longer term than agreed upon at the time of his negotiated guilty plea. We conclude that such an increased sentence does not violate the plea bargain. Consequently, we affirm. *255 Following his negotiated plea of guilty to receiving stolen property (Pen. Code, § 496), def...
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Opinion Appellants, the owners and operators of 20,000 acres of farmland have appealed from a judgment finding that a portion of a *267 sign located on their premises is a public nuisance and ordering them to remove a portion of that sign. * The action is predicated upon the provisions of the California Outdoor Advertising Act (Bus. & Prof. Code, § 5200 et seq.) ...
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Opinion The superior court granted wife’s motion to set aside a stipulated interlocutory judgment and final judgment of dissolution. Husband appeals from the order contending that wife’s motion was untimely and that she failed to prove sufficient grounds to set the judgment aside. Wife appeals from the portion of the order denying recovery of attorney fees. Facts The parties wer...
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Opinion Plaintiff, Insurance Company of North America (INA), appeals from a judgment of dismissal entered after the trial court sustained without leave to amend the demurrer of defendant (Liberty Mutual Insurance Company (Liberty)). This action was brought by INA for declaratory relief. The trial court found a judgment entered in an earlier action between INA and Her Majesty Industries (H...
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Opinion In a single count1 Peter Sylvia was accused of felony drunk driving (Veh. Code, § 23101). The trial jury decided he was not guilty of the charged offense, but apparently could not agree on the lesser included offense of misdemeanor drunk driving (Veh. Code, § 23102, subd. (a)). The petition for an extraordinary writ presents the question, does acquittal on the charge of felony drunk drivin...
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Opinion This is an action for medical malpractice for failure to remove a large surgical sponge from plaintiff and respondent Dorothy Mary Truhitte’s abdomen during a hysterectomy. The sponge or “GYN tape” remained undiscovered for more than two years, causing serious complications; it was removed in a second surgery. Plaintiff then suffered a total bowel obstruction requiring a third ope...
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*373 Opinion Earl Stanley Kuhns, plaintiff, appeals conditions attached to a writ of mandate ordering the Santa Cruz Board of Supervisors, defendant, to issue him a planned development permit to operate a general bookstore. The board of supervisors cross-appeals claiming the court erred in granting the writ. Kuhns is the owner of property in Santa Cruz. He applied for a planned development ...
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Opinion Appellant Keith Clayton Krall was civilly committed to the Department of Developmental Services on November 3, 1980, pursuant to. a court finding that he was mentally retarded and dangerous to others. (Welf. & Ipst. Code, § 6500 et seq.) At the hearing in superior court, appellant’s counsel stipulated that appellant was dangerous to others but denied that appellant was mentally re...
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Opinion This is a prisoners’ class action challenging the conditions at Tulare County jail. The trial court dismissed the action after granting respondents’ general demurrer without leave to amend. The complaint was filed on November 1, 1978. Appellants allege, in 10 causes of action, various violations of the federal and state Constitutions, the federal Civil Rights Act (42 U.S.C. §...
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Opinion Appellant was charged, in an information filed June 2, 1980, by the District Attorney for the City and County of San Francisco, with a violation of Penal Code sections 664 and 211 (count one), attempted robbery; with a violation of Penal Code section 245, subdivision (a), assault with a deadly weapon (count two); and, as a convicted felon, possession of a firearm in violation of Penal C...
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Opinion The sole issue in this case is whether a criminal defendant’s Fifth Amendment privilege against double jeopardy is violated when he is retried after the trial judge sets aside a jury verdict of guilty under the provisions of Penal Code section 1181, subdivision 6 1 (verdict contrary to law or evidence.). On February 3, 1978, after a trial by jury, a verdict was rendered against appe...
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128 Cal.App.3d 469 (1982) 180 Cal. Rptr. 257 NORMAN SPARGUR, Plaintiff and Appellant, v. KURT ARTHUR PARK, Defendant and Respondent; STATE COMPENSATION INSURANCE FUND, Intervener and Respondent. Docket No. 61783. Court of Appeals of California, Second District, Division Two. February 3, 1982. *470 COUNSEL Edward I. Grant for Plaintiff and Appellant. William T. Anderson for Defendant and Responden...
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Opinion A jury found Benjamin Gabino Flores and Jacinto Dominguez guilty, of selling heroin (Health & Saf. Code, § 11352), involving four counts in Flores’ case and one count in Dominguez’ case, and possessing heroin for sale (Health & Saf. Code, § 11351), involving one count in each case. On the heroin sale count (count IV) and the possession for sale count (count V) involving both Flore...
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Opinion Plaintiff Wana the Bear, a direct descendant of the Bear People Lodge of the Miwok Indians, seeks reversal of a judgment that the Native American burial ground under development by defendant Community Construction, Inc., is not a cemetery entitled to protection under the California cemetery law. This case comes to us shrouded in the history of an ancient Indian people whose r...
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128 Cal.App.3d 543 (1982) 180 Cal. Rptr. 427 ANITA TOCCALINO, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and SIERRA VISTA HOSPITAL, Respondents. Docket No. 6507. Court of Appeals of California, Fifth District. February 8, 1982. *548 COUNSEL Ronald I. Gould for Petitioner. Dexter W. Young, Holzer & Cohen and Sheldon Cohen for Respondents. OPINION HANSON (P.D.), J. Petitioner by writ of...
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Opinion Defendant was convicted by jury verdict of the crimes of first degree murder and second degree burglary.1 Following denial of postconviction motions, he was sentenced to state prison for the term prescribed by law for first degree murder (25 years to life) with the sentence on the burglary conviction stayed pending completion of sentence on the murder conviction. On appeal defendant claims...
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Opinion Plaintiff and appellant Rigging International Maintenance Company, a wholly owned subsidiary of Rigging International, caused a complaint to be filed in the Superior Court of Alameda County on March 3, 1978, alleging that defendant and respondent Steve W. Gwin had wrongfully interfered with its business relationships (first cause of action), engaged in unfair competition and breached a ...
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Opinion Plaintiff and appellant, Bernice Mann, appeals from a judgment notwithstanding the verdict and conditional *631 grant of a new trial. The trial court granted the motions of defendants and respondents, Columbia Pictures Industries, Inc. (Columbia), Warren Beatty, and Robert Towne, after a jury awarded plaintiff a verdict in the sum of $185,000. Plaintiff also appeals f...
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*663 Opinion This case arises from the refusal of General Motors Corporation (General Motors) to approve the sale of a dealer franchise owned by John E. Burke, individually, and Tucker, Inc., doing business as Burke Chevrolet (petitioners). Petitioners contend, among other things, that General Motors’ refusal was based on a policy requiring racial discrimination. The trial court ...
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Opinion Following true findings Myron S. committed a robbery (Pen. Code, § 211) during which he was armed with a pistol (Pen. Code, § 12022, subd. (a)), the court granted him probation. He appeals claiming his confession to the crime was inadmissible. On February 13, 1981, Myron and a companion robbed a taco stand. The police apprehended the companion who confessed and implicated Myron. The police...
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Opinion Dr. Frances E. White (Dr. White) was charged by the Board of Medical Quality Assurance (Board) with unprofessional conduct in the acts of prescribing medicine to persons who were addicts and to persons representing themselves to be addicts. The Board claimed there was an absence of medical indication for prescriptions given by Dr. White. After an administrative hearing, a proposed...
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Opinion Petitioner Nationwide Insurance Company, defendant in the action below, demurred generally to the plaintiff’s complaint, moved for judgment on the pleadings and, alternatively, for abatement of the action. Its demurrer was overruled; its motion for abatement was denied; the motion for judgment on the pleadings was not ruled upon. Contending that these rulings were plainly contrary...
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Opinion Appellant was charged in an information filed by the District Attorney of Santa Clara County with violations of Penal Code sections 459 (burglary), 496 (possession of stolen property) and 485-487 (appropriation of stolen property). On October 17, 1980, a jury convicted him of the violation of Penal Code section 496 and acquitted him of the other charges. On January 15, 1981, in propri...
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*735 Opinion Petitioner appeals from a judgment denying his petition for a writ of prohibition to prohibit his trial on a series of misdemeanor offenses. We reverse. The complaint charges petitioner with nine counts as follows: (count I) unlawful practice of psychology without a license between September 8, 1979, and December 19, 1979, in violation of section 2903 of the Business and Profes...
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*742 Opinion This is an action by Honeywell, Inc. (Honeywell), appellant, for refund of sales and use tax for the years 1964-1968. After a judgment in favor of defendant State Board of Equalization (the Board) denying most of the refunds, Honeywell appeals. Statement of Facts The record in this case does not permit a statement of facts that graphically describe the vari...
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Opinion Lumbermens Mutual Casualty Company (Lumbermens) appeals a judgment in favor of Agency Rent-A-Car, Inc. (Agency) and National Bonding and Accident Insurance Company (National) after requesting the court declare which party had primary coverage for an automobile involved in a collision. The pivotal issue is whether Insurance Code section 11580.9 1 applies to a surety bond filed in compl...
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Opinion The trial court gave judgment for specific performance in favor of Thomas E. and Joan M. Fogarty, hereafter plaintiffs or buyers, and against Maria T. Saathoff also known as Maria T. Swiskoski, hereafter defendant or seller, in respect to an agreement for the purchase and sale of a condominium. 1 Defendant appeals. Facts On July 30, 1978, the parties executed a purchase contract...
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128 Cal.App.3d 789 (1982) 180 Cal. Rptr. 550 STAUFFER CHEMICAL COMPANY, Plaintiff and Appellant, v. AIR RESOURCES BOARD et al., Defendants and Respondents. Docket No. 52134. Court of Appeals of California, First District, Division One. February 16, 1982. *791 COUNSEL John T. Hansen, Michael H. Salinsky, C. Douglas Floyd and Pillsbury, Madison & Sutro for Plaintiff and Appellant. George Deukme...
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Opinion By his complaint for mandamus and injunctive relief, plaintiff and appellant sought to compel the County of Monterey (the County) to set aside the decision of its board of supervisors approving a subdivision of the Carmel Valley Ranch. The trial court entered judgment in favor of the County based upon findings sustaining the County’s affirmative defenses of lack of standing, lache...
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Opinion Frank Rojas Lopez was charged by information with grand theft of a firearm (Pen. Code, § 487, subd. 3) and with having possession of a concealable firearm after having been convicted of a felony (Pen. Code, § 12021, subd. (a)). He was also charged with having suffered a prior felony conviction of grand theft in 1979 and a prior felony conviction of rape in 1975 and with having served prior...
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Opinion Appeal from an arbitration order awarding the prevailing party as “costs” $550, representing one half of the arbitrator’s fee paid by each side. We affirm. Appellant and respondents were plaintiff and defendant respectively in an action pending in superior court. Rather than wait and try the case to a jury over many days, they agreed to have the matter tried by á retired judge. To tha...
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Opinion Appellant was convicted after a court trial of three counts of receiving stolen property (Pen. Code, § 496). He was sentenced to two years in state prison on each count, the sentences to run concurrently. He now appeals from the judgment of conviction. Three contentions are raised on appeal: (1) There was insufficient evidence to convict appellant of a violation of Penal Code section ...
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Opinion Petition for writ of habeas corpus in which review is sought of a superior court order under Penal Code section 871.5 reinstating a felony complaint which had been dismissed by the magistrate. We will hold that Penal Code section 871.5 provides for review of the challenged order by a statutory motion to dismiss the information (Pen. Code, § 995; all further statutory references are to s...
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*834 Opinion Introduction The basic question posed by this appeal is at what point in the subdivision process does a subdivider acquire a vested right to complete his subdivision without a permit from the California Coastal Commission, We hold that a vested right to an exemption from the permit requirements of the coastal act (Pub. Resources Code, § 30000 et seq.) arises on...
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Opinion A jury found defendant guilty of kidnaping for purpose of robbery (Belas) (count I), robbery (Belas) (count II), robbery (Kratzer) (count III), attempted robbery (Barron) (count IV), first degree burglary (Barron) (count V), robbery (Binder) (count VI), first degree burglary (Binder) (count VII), robbery (Allen) (count VIII), first degree burglary (Allen) (count IX), robbery (S.) (count...
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Opinion This appeal presents the combined issues of the role of the judge and the use of extrinsic evidence in determining the applicability of Probate Code section 92—the antilapse statute in a proceed ings to determine heirship.1 The court below rejected any resort to extrinsic evidence and determined from the language of the will in question that Probate Code section 92 was applicable. We affi...
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Opinion Appellants were charged with possession of heroin. Following denial of their joint motion to suppress evidence pursuant to *878 Penal Code section 1538.5, defendants pleaded guilty and were sentenced. By this appeal, each appellant contends that the trial court erred in refusing to suppress the challenged evidence. The following evidence was introduced at the hearing on the 1538.5...
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Opinion Roger A. Keyes appeals a judgment of dismissal after a demurrer was sustained without leave to amend to his complaint based upon personal injuries incurred when he struck a submerged object while swimming and diving in the Lexington Reservoir. Our sole issue is whether Keyes has pleaded facts sufficient to show his cause of action lies outside the breadth of Government Code section 831.2,1...
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Opinion Daniel Adelson appeals a judgment denying his petition for a writ of mandate against the Regents of the University of California. *893 In 1960 the university hired Adelson as a part-time psychology lecturer in the school of nursing (School) at the university’s San Francisco campus. In 1965 Adelson began working full time in the School’s graduate training program in community mental ...
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Opinion Certain passengers were within the scope of their employment when killed in the crash of a Pacific Southwest Airlines (PSA) aircraft. Decedents left no dependents. Associated Indemnity Corporation and American Insurance Company provided worker’s compensation insurance for the decedents’ employers, and sued PSA to recover $182,736.32 which they paid to the state pursuant to La...
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Opinion Following an arbitration hearing conducted under the authority of section 1141.11 of the Code of Civil Procedure, resulting in an award of damages to respondents in the amount of $15,519.95 on February 26, 1980, appellants filed a “Rejection of Arbitrator’s Award” with the superior court on March 6, 1980, declaring that appellants “hereby reject the Arbitrator’s Award made herein....
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Opinion By information filed September 8, 1980, appellant Bennie Buddy Mosqueda was charged with two violations of Health and *920 Safety Code section 11377, subdivision (b), possession of LSD and methamphetamine (counts I and II), violation of Health and Safety Code section 11357, subdivision (b), possession of marijuana (count III) and violation of Penal Code section 647, subdivision (f), i...
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Opinion The Supreme Court of the United States on November 30, 1981, issued its judgment and mandate that the judgment of the Court of Appeal “in this cause is reversed,” and “that this cause is remanded to the Court of Appeal of California, Fourth Appellate District, for' further proceedings not inconsistent with the opinion of this Court.” The opinion of the United States Supreme C...
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Opinion This petition for habeas corpus was transferred by the Supreme Court to this court and the Sheriff of Los Angeles County was ordered to show cause why the writ should not be granted. We calendared the matter for oral argument. After considering the record and the circumstances of the case we have concluded that the writ should be denied. Petitioner was convicted in the Superior Court ...
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Opinion Plaintiff appeals from a judgment of dismissal entered after the trial court granted defendants’ motion for summary judgment. We affirm. Plaintiff filed a complaint for medical malpractice in November 1977. The complaint alleges that in the summer of 1975, plaintiff was suffering from a gastronomic disorder. Her physician, Dr. Anthony, referred plaintiff to defendants for treatment. ...
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Opinion Defendant-appellant, Bruce Kennedy, individually and doing business as Summit Properties, appeals from the portion of the judgment which awards plaintiff-respondent attorneys’ fees in the sum of $17,500 as compensatory damages. The sole issue on appeal is a legal one: Does Civil Code section 3333 1 authorize attorneys’ fees as an element of compensatory damages awa...
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Opinion Johnny Ray Williams and David Stone appeal from judgments entered after a jury convicted them of burglary (Pen. Code, § 459). Appellants contend that the court erred when it (1) admitted into evidence a conversation recorded while they sat, under arrest, in a police car; (2) ruled that appellant Williams’ robbery prior was admissible for impeachment purposes; and (3) granted the prosecutor...
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128 Cal.App.3d 992 (1982) 180 Cal. Rptr. 742 WILLIAM JOHN VLICK et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. 63172. Court of Appeals of California, Second District, Division One. February 22, 1982. *994 COUNSEL Arthur Lewis and Kenneth H. Lewis for Petitioners. No appearance for Respondent. John K. Van de Kamp, Distri...
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Opinion Defendants Carlos C. and Jeanette R. Ramirez and Ezekiel Pinedo and Carmen P. Arguijo appeal a judgment of condemnation of portions of the residential lots owned by the respective couples in this action by the City of El Monte (hereinafter referred to as the City) solely insofar as it fails to compensate defendants for litigation expenses. Facts On April 30, 1979, the City filed a c...
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Opinion Defendant John Westco Savage appeals from a judgment based upon jury verdicts finding him guilty of forcible rape (counts I and III) and forcible oral copulation (count II). He makes but one contention of error, which he states as: “Officer Hubbard’s notes were material evidence, and their intentional non-malicious destruction required the court to exclude that evidence which they might...
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Opinion On August 3, 1977, defendant pleaded guilty before Judge Calcagno to possession of a completed check with intent to defraud (Pen. Code, § 475a). The plea was a negotiated one, entered upon condition that imposition of sentence would be suspended and that defendant would be placed on probation for 3 years with a maximum commitment of 160 days in county jail. The court thus retained some,...
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Opinion Appellant Delphi Lee, Jr. (Lee) was a civil service worker, employed by the Los Angeles County Department of Public Social *11Services (DPSS) as an administrative assistant. On January 20, 1975, Lee filed a declaration of candidacy to become a candidate for the Democratic nomination for the office of state senator in a special primary election to be held March 4 the same year. Prior to th...
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Opinion In a four-count information filed on March 17, 1980, defendant Otis Perkins was charged with violations of Penal Code section 261, subdivision (2); Penal Code section 261, subdivision (3); Penal Code section 288, lewd conduct with a child under the age of 14; and Penal Code section 261.5, unlawful sexual intercourse. Two pri- or convictions were alleged, one for escape without force in ...
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Opinion This appeal is from the judgment in favor of respondent attorney in an action for legal malpractice, entered pursuant to an order by the trial court granting his motion for summary judgment. Appellants are Vernon J. Garcia, the only surviving child of Joseph Garcia, deceased, and Michael and Scott Garcia, grandsons of the decedent. *27 Respondent, Frank P. Borel...
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Opinion The Board of Medical Quality Assurance (hereinafter the Board) appeals from a judgment entered after the trial court issued a peremptory writ of mandate. The writ was based on the court’s finding that the Board did not timely grant a petition for reconsideration. The writ ordered the Board to set aside its decision unconditionally revoking respondent’s medical license and to reins...
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Opinion Margaret Sucec appeals from a denial of her petition for a writ of mandate to compel respondent university to afford her a grievance hearing to contest her dismissal. Appellant was employed by the respondent university from 1968 to the date of her dismissal on August 30, 1976. On August 18, 1976, she received written notice of dismissal effective August 30, 1976. She was also advised: “You...
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Opinion In this libel action plaintiff Frank McGuiness appeals from a summary judgment in favor of defendants Motor Trend Magazine et al., which was granted on the ground that the action is barred *61 by the one-year statute of limitations. (Code Civ. Proc., § 340, subd. 3.) 1 According to the allegations of the complaint, plaintiff was libeled “[i]n the August, ...
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Opinion This is an appeal by lessees Lowell A. Wooden and Dorothy M. Wooden, appellants, from a judgment in favor of lessor J. W. Greenhut, respondent, in an unlawful detainer action. Because of the complex nature of the transactions involving their occupancy of the residential property in question, appellants maintain that they should have been allowed to try the issue of title in the unlawful...
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Opinion Richard A. Castner, plaintiff, appeals the superior court’s denial of his request for a peremptory writ of mandate to compel the City of Oakland to grant him a conditional use permit for the operation of an “adult” bookstore. *96 Castner operates an adult bookstore with motion picture machines in the City of Oakland. The city passed an ordinance banning adult enterta...
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Opinion Charging uncertainty and waiver, Litton Financial Printing Co. (Litton) appeals from a trial court’s order confirming a labor arbitrator’s award. For the reasons following, we uphold its judgment, find the arbitrator retains jurisdiction to determine the amounts due under his award, and order remand for such determination. Background Printing Specialties and Paper Products Union, ...
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Opinion Plaintiffs Dolores and Ramon Sesma (Sesmas) appeal the dismissal of their complaint for wrongful death and emotional distress based on the death at birth of their infant child. After answer and partial discovery, defendant Jose M. Cueto, M.D., was granted summary judgment as to both parties on both causes of action. Defendant Mercy General Hospital has answered, did not seek a summa...
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Opinion Appellant seeks reversal of the judgment entered upon his conviction for robbery (Pen. Code, § 211) and use of a firearm in the commission of the offense (Pen. Code, § 12022.5). Appellant raises the following issues: the trial court erred in permitting police officers to identify appellant as one of the persons depicted in a surveillance photograph of the robbery; motions to dismiss (Pe...
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129 Cal.App.3d 140 (1982) 180 Cal. Rptr. 815 In re the Marriage of LEORA and ABRAHAM SASSON. ABRAHAM SASSON, Appellant, v. LEORA SASSON, Respondent. Docket No. 62259. Court of Appeals of California, Second District, Division One. February 25, 1982. *142 COUNSEL Charles G. Ewald and Anne M. Beiner for Appellant. No appearance for Respondent. OPINION SPENCER, P.J. — INTRODUCTION Petitioner Abraham...
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*191 Opinion Petitioner filed this petition for writ of mandate to challenge the denial of her motion to suppress certain evidence seized in a search of her automobile. (Pen. Code, § 1538.5.) We issued an alternative writ as we believed the law in this area required clarification. Since then the United States Supreme Court has issued two decisions on the subject of automobile searches, New Y...
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Opinion We deal in these two cases with ordinances of the Cities of Paramount and Redondo Beach which restrict display of certain explicit material when such material “has as its primary purpose, design or effect sexual arousal, gratification or affront.” The two ordinances are virtually identical, except for what may be a typographical error in the Redondo Beach ordinance. 1 For convenienc...
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Opinion Plaintiffs, leasehold owners and developers of property in South Lake Tahoe, brought this suit seeking a writ of administrative mandate (Code Civ. Proc., § 1094.5), together with declaratory and injunctive relief. The action sought to set aside California Tahoe Regional Planning Agency’s (CTRPA) assertion of jurisdiction over plaintiffs’ building project and to compel the Californ...
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Opinion This appeal is from a default judgment of the superior court. 1 Defendant’s major contention 2 is that the default judgment is void on its face because there is no competent evidence in the record to show he was actually served with process. As will be seen, we hold that the California statutory scheme (Code Civ. Proc., §§ 415.40 and 417.20 3 read together) permits completion of s...
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Opinion A jury found Harold Francis guilty of murder in the first degree (Pen. Code, §§ 187 and 189) 1 and of being an accessory to the same murder (Pen. Code, § 32). 2 The jury also found that Francis was insane at the time of the murder offense but sane at the time of the accessory offense. Finding he had not recovered his sanity, the court committed Francis to Atascadero State Hospital f...
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Opinion Defendant was convicted of second degree murder (Pen. Code, § 187) with use of a firearm (Pen. Code, § 12022.5). He appeals from the judgment committing him to prison. We shall affirm. *260 This is the second opinion in this case, a rehearing having been granted after the first decision. The vacated opinion was rendered after the court had advised counsel by letter that the case w...
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*289 Opinion Summary of the Case Respondent oil companies brought an action in the Superior Court of Los Angeles County seeking to recover property taxes paid-under protest. This matter was before Division One of this court in Atlantic Richfield Co. v. County of Los Angeles (1977) 68 Cal.App.3d 105 [137 Cal.Rptr. 84] (ARCO II). Division O...
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Opinion Defendant was charged with murder in violation of Penal Code section 187. He pled not guilty and not guilty by reason of insanity. A jury found defendant guilty of murder in the second degree and found him sane. He was sentenced to state prison. *305On the night of October 16-17, 1979, defendant, a dentist, picked up a hitchhiker and took her to his office for the purpose of having sex. Th...
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I concur in the result. I think it clear from a reading of the Medical Injury Compensation Reform Act and its legislative history that the collateral source provisions of section 3333.1 were meant to apply to the monetary value of medical services provided under the Social Security Act. However, the Social Security Act directs the state to “seek reimbursement for such assistance to the extent of ....
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Opinion The central question presented is whether a business which publishes and sells a daily booklet containing aTist of current job openings is an employment agency. We hold that it is not. Plaintiff appeals from an order granting a preliminary injunction prohibiting plaintiff from engaging in certain business activities relating to employment. 1 Facts Plaintiff ...
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Opinion Statement of the Case In this dissolution proceeding, the husband, James Merideth, appeals from an order after judgment that he pay to wife, Jo Anne, $3,555, representing arrearages in child support payments. *359 James asserts' that the trial court never obtained jurisdiction of his person; and, therefore, the support orders are void. The Facts Jo Ann...
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Opinion Angelo Sangiacomo and other defendants appeal from an order denying their motion to dissolve a preliminary injunction. On July 5, 1979 the San Francisco District Attorney filed an action for injunctive relief, restitution and penalties against Angelo Sangiacomo and other defendants. The complaint charged the defendants with violating section 1950.5 of the Civil Code in that t...
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Opinion On March 14, 1979: (a) appellant 20th Century Insurance Company was the insurer of respondent Dagmar Stuart under an automobile liability insurance policy; (b) Stuart and her mother, respondent Olga Auerbach, resided in the same household; (c) Stuart, while operating the automobile described in the insurance policy, collided with Auerbach while the latter was a pedestrian. *372 Auer...
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Opinion Appellants appeal from a judgment entered June 9, 1980, permanently enjoining them from, inter alia, violating Business and Professions Code section 23300 1 by continuing to sell or serve alcoholic beverages under a revoked alcoholic beverage license utilizing a caterer’s permit. For the reasons set forth below, we conclude that the trial court correctly determined that appellants wer...
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Opinion This is an action to determine the coverage afforded to plaintiff and appellant Apparel City Sewing Machine Company, Inc., by an insurance policy issued by defendant and respondent Transamerica Insurance Group. The matter was submitted to the trial court for decision on the pleadings and the trial briefs filed by the parties. There is no factual dispute in the instant case. O...
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Opinion Vance Lura appeals from a judgment in favor of Multaplex, Inc. in litigation concerning commission payments claimed by appellant. At all relevant times appellant was a full-time employee of a firm known as NorCal Tech. Respondent solicited appellant’s assistance in obtaining various business accounts. Appellant succeeded in procuring several customers for respondent. These cu...
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129 Cal.App.3d 436 (1982) 181 Cal. Rptr. 123 CITIZENS OF LAKE MURRAY AREA ASSOCIATION, Plaintiff and Appellant, v. CITY COUNCIL OF THE CITY OF SAN DIEGO, Defendant and Respondent. Docket No. 26424. Court of Appeals of California, Fourth District, Division One. March 3, 1982. *437 COUNSEL Lawrence Wasserman for Plaintiff and Appellant. John W. Witt, City Attorney, Ronald L. Johnson, Chief Deputy C...
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Opinion Plaintiff Charles M. Deas, claiming to be a creditor of defendant real estate broker, Charles H. Knapp, on behalf - *446 of himself and others similarly situated, commenced an action to set aside several conveyances of real property from defendant Charles H. Knapp to his son, defendant Keith C. Knapp, on the ground that they “were made with the intent to hinder, delay...
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Opinion On September 19, 1980, the District Attorney of Contra Costa County filed an information in the superior court alleging that appellant had violated Health and Safety Code section 11378 (possession rof controlled substance for sale). The information also alleged five prior felony convictions pursuant to Penal Code sections 667.5, subdivision (b) and 1203, subdivision (e)(4). On September...
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Opinion Pursuant to Code of Civil Procedure section 418.10, subdivision (c) petitioner seeks a writ of mandate to compel the superior court to enter its order quashing service of summons on petitioner. Petitioner Lakewood Bank and Trust Company is a Texas state bank which is named as a cross-defendant in a cross-complaint. The Second Amended Complaint According to the s...
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*477 Opinion Introduction Appellant Philip L. Nicoletti appeals from an order overruling objections to the report of the inheritance tax referee and. thence fixing the amount of inheritance tax. Statement of Facts This case comes before us on an agreed statement on appeal, the pertinent portions of which we summarize below. Tressie Nicoletti (the decedent) die...
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Opinion Appellant William Cartwright appeals from an order granting a motion to strike his “special answer” which he filed as a third party defendant pursuant to Code of Civil Procedure section 428.70. We conclude the appeal lies and that the trial court erred in striking the answer. In 1971, in connection with the marriage dissolution proceedings of Adeline and Joseph Zamot, appellant Cartwright...
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Opinion The People appeal from an order dismissing nine counts of a ten-count information. The court made the order after accepting the defendant’s plea of guilty to the 10th count, and sentencing him to a low term in the state prison. The disposition was intended by the court to be consistent with certain prior negotiations concerning a plea bargain, but was made over the express objection of ...
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*498 Opinion Appellant Medlock Dusters, Inc., petitioned for a writ of administrative mandate after the respondent Director of the Department of Food and Agriculture (Department) imposed a disciplinary suspension against it as a licensed pest control operator. The trial court denied the petition for a writ of mandate and Medlock appeals contending that the statutes and regulation...
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Opinion This petition seeks to set aside an extradition order by which petitioner is to be returned to Nevada for sentencing on a parole violation. On January 18, 1977, petitioner William Albright was sentenced in the Washoe County Judicial District, Nevada, to six years in the Nevada State Prison for the crime of battery with a deadly weapon. On January 30, 1978, in anticipation of being p...
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Opinion Defendant was convicted of one count of kidnaping, three counts of rape, two counts of sodomy, and one count of forcible oral copulation. He appeals from the judgment of conviction, contending that the in-court identification of him by the victim, Cynthia B., should have been ruled inadmissible, as based on an unreasonable one-person showup; and that he was improperly sentenced. We reje...
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Opinion The question presented by this appeal is whether the transfer of assets to a trustee for a specific term, under directions to pay *522net income to designated beneficiaries, and with discretion to distribute up to one-half of the corpus to the beneficiaries for stated purposes, constitutes a “transfer by gift of ... property” within the meaning of Revenue and Taxation Code section 15201. ...
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Opinion Hector Rousseau appeals from a judgment of imprisonment after a jury found him guilty of conspiracy to commit theft (Pen. Code, § 182, subd. 4), two counts of grand theft (Pen. Code, §§ 484, 487) and one count of failure to remit employment taxes (Rev. & Tax. Code, § 19408). During the middle and late 1970s, appellant owned, managed or was otherwise involved with many compani...
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Opinion This is an appeal from conviction and sentence of defendant on a murder first degree charge. Defendant had pled not guilty and not guilty by reason of insanity. Trial was by court after a first trial, by jury, resulting in conviction with finding of sanity had *548been reversed. The court trial resulted in a conviction and finding of sanity. It is unnecessary to set forth a statement of fa...
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Opinion At issue in this proceeding on petition for writ of habeas corpus is whether a trial court may require, as a condition of probation, a criminal defendant to waive the statutory maximum period of probation. We hold that it may not. Accordingly, we issue a writ of habeas corpus directing the trial court to vacate its decision denying petitioner’s application for probation and to grant pet...
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129 Cal.App.3d 570 (1982) 181 Cal. Rptr. 149 DORIS BURKE, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; HOLLY HIGGINS, a Minor, etc., et al., Real Parties in Interest. Docket No. 26430. Court of Appeals of California, Fourth District, Division One. March 8, 1982. *571 COUNSEL Nickoloff & Distel, Thomas O. Nickoloff, Horvitz & Greines, Ellis J. Horvitz, Kent L. Richlan...
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Opinion These are appeals from judgments in coordinated fictions in eminent domain and inverse condemnation. Procedural History On February 7, 1977, Sydney Mark Taper as testamentary trustee of the Barry Hugh Taper Trust, later joined as a party plaintiff by Barry Hugh Taper (collectively the Tapers), filed an action in the Los Angeles Superior Court against the City of Long...
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Opinion Statement of Case Appellant was charged on August 30, 1979, in count one with murder by the use of a firearm (Pen. Code, §§ 187 and 12022.5), in count two with burglary resulting in great bodily injury (Pen. Code, §§ 459 and 12022.7), and in count three with assault with a deadly weapon by use of a firearm (Pen. Code, §§ 245, subdivision (a) and 12022.5). *623 A Penal Code section...
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129 Cal.App.3d 638 (1982) 181 Cal. Rptr. 281 THE PEOPLE, Plaintiff and Respondent, v. FRANK MIKE CLAXTON, Defendant and Appellant. Docket No. 4591. Court of Appeals of California, Fifth District. March 2, 1982. *643 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Mark L. Christiansen, Deputy State Public Defender, for Defendant and Appellant. George Deukm...
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129 Cal.App.3d 672 (1982) 181 Cal. Rptr. 209 DOMINGA ORTIZ, Plaintiff and Respondent, v. MARION WOODS, as Director, etc., Defendant and Appellant. J.S. HARLEY, Plaintiff and Respondent, v. MARION WOODS, as Director, etc., Defendant and Appellant. Docket No. 62903. Court of Appeals of California, Second District, Division One. March 10, 1982. *673 COUNSEL George Deukmejian, Attorney General, Thoma...
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*712 Opinion Petitioners seek a writ of mandate to compel the respondent Orange County Superior Court to vacate its order denying their motion for summary judgment and to enter a new order granting the motion. The issue presented is whether the fireman’s rule applies to bar recovery of damages for injuries sustained by paid-call firefighters in the course of fighting a fire. ...
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*Supp. 3Opinion Defendant Rose Katherine Diane Tapia was arraigned on a charge of violating Penal Code, section 484, subdivision (a) (petty theft), and trial was set for June 4, 1981. On May 4, 1981, upon defendant’s motion and over the objection of the prosecutor, the court ordered that defendant be “diverted pursuant to section 1001 Penal Code for a period of one year,” upon stated conditions. T...
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129 Cal.App.3d 265 (1982) 180 Cal. Rptr. 792 THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LYNN BAILES, Defendant and Appellant. Docket No. 4881. Court of Appeals of California, Fifth District. February 25, 1982. *267 COUNSEL David F. Blaisdell, under appointment by the Court of Appeal, for Defendant and Appellant. George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Att...
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Opinion In 1975, a group of black firefighters brought suit against various officials of the City of Oakland (City) seeking relief for what they claimed were racially discriminatory practices by the City’s fire department in hiring and promotion. The trial court, finding in favor of plaintiffs on their claim of past racial discrimination, issued a writ of mandate on December 9, 1975, orde...
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Opinion Petitioner, a defendant in a wrongful death action, seeks a writ of mandate and/or prohibition to compel the grant of its motions to quash service and dismiss it from the action on the ground that service and return of summons had not occurred within three years of the commencement of the action as required by Code of Civil Procedure section 581a, subdivision (a). On June 29, 1981, re...
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Opinion In this appeal we examine the question of privilege in the context of a commercial slander. Plaintiff Williams brought this action alleging various causes of action against his former employer, Taylor Motors, Inc. (Taylor Motors); the company’s president, Howard Taylor; and the company’s general manager, Jerry Newcomer. 1 The trial court granted defendants’ motion for s...
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Opinion Defendant appeals from order denying motion to quash a prejudgment writ of attachment. The primary appellate issue is whether the claim upon which the cause of action is based arose out of the defendant’s conduct of a trade, business or profession. On May 5, 1980, plaintiff filed suit to recover damages for breach of contract for sale of real property by defendant, a resident...
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Opinion Hughes Development Corporation (Hughes) appeals from a judgment ordering it to convey to Al J. Vela & Associates, Inc. (Vela) a piece of real property known as the Bender School Site. *768 Vela commenced an action to enjoin Glendora Unified School District from selling the property to Hughes. The action arose out of the following circumstances: Vela submitted the hig...
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Opinion This is an appeal from that part of a judgment denying prejudgment interest to the assignee of a stop notice claimant (public works) and allowing the public entity to retain the liquidated damages it assessed pursuant to a contract awarded by bid. *774 On December 10, 1973, Sherwin Electric Service Company (Sherwin or contractor) as prime contractor, entered into a w...
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Opinion This action by California School Employees Association (CSEA) was instituted on behalf of certain classified school employees1 for declaratory relief and to recover compensation for two holidays, Labor Day 1976 and Admission Day 1976. The superior court determined the defendant Santee School District was obliged to pay holiday pay for Admission Day 1977 but not for Labor Day or Admission D...
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Opinion Ashland Chemical Company sued Ross Provence, Lee Epstein, and Ceramics International, Inc., on a promissory note and guaranty contract. The superior court sustained Provence’s demurrer without leave to amend and Ashland prematurely appealed. Then, realizing the court had not yet entered an appealable judgment, Ashland asked the clerk to dismiss the complaint with prejudice “only f...
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Opinion At issue in this appeal is the proper means of enforcing an alleged settlement agreement. Defendant and appellant Margaretha M. Hoar contends the “speaking motion” procedure employed by plaintiffs is improper and the motion should have been treated as a motion for summary judgment. We agree. We reverse the judgment entered in favor of plaintiffs after the trial court granted their...
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Opinion The question presented is whether a defendant, who competently alleges he was damaged by voluntary compliance with a temporary restraining order with which he was never served, is entitled to prove his damages in a proceeding to enforce the liability of the surety after the complaint for injunction has been dismissed on plaintiff’s motion. We hold that he is. Prior to July 26, 1980, d...
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Opinion The principal question presented by this appeal is whether an employee may bring a civil action against his employer for injuries caused by the employer’s intentional failure to correct hazardous working conditions when it knew that an injurious explosion was substantially certain to occur. We hold that such an action is barred by the “exclusive remedy” limitation of the workers’ compen...
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Opinion Defendant appeals from the judgment imposing an aggravated prison term following a negotiated plea of guilty to the crime *822 of accessory after the fact to murder. (Pen. Code, § 32.) Two counts charging defendant with murder, each with three special circumstances allegations, were dismissed as part of the plea bargain. Defendant makes two contentions: (1) the trial court’s use of ...
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Opinion Petitioners, California Teachers Association and Whittier Elementary Teachers Association, appeal from a judgment dismissing their petition for a peremptory writ of mandate to compel defendants, Board of Education of Whittier City School District and Edward Reyes, Superintendent of Whittier School District, (hereinafter Dis *828 trict), to eliminate their rule governi...
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Opinion Plaintiffs Richard Pereira and Marlene Pereira, his wife, appeal from orders granting summary judgments in favor of the various defendants in an action to recover damages for personal injuries for permanent, severe kidney disorder sustained by Richard Pereira and for his wife’s attendant loss of consortium. Both plaintiffs sought to recover against Dow Chemical Company, Inc. (Dow)...
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*879 Opinion This is an appeal from a judgment which denied appellant’s claim for a refund of ad valorem taxes in the principal amount of $100,054.25, assessed and paid under protest for the fiscal year 1973-1974 on personal property allegedly owned by it. The case was tried on stipulated facts which may be summarized as follows. Appellant (hereinafter also Mass Mutual), a mutual...
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Opinion On appeal from a judgment of dismissal entered upon an order granting summary judgment, we consider the question of whether the one-year statute of limitations contained in section 4026 of the Education Code (to which all section references apply unless other *890 wise indicated) governs the commencement of suit raising constitutional challenges to the validity of a change in the boun...
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Opinion Pursuant to a petition filed June 22, 1979, by the County of Alameda under Civil Code section 232, subdivision (a)(7),1 the trial *898court rendered judgment declaring Robert J., a minor, free from his natural mother’s custody and control. Appealing from the judgment, she contends that she was denied due process of law because county authorities failed to notify her of the legal consequenc...
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*910 Opinion This appeal is from a judgment entered in an eminent domain action brought by appellant, the City of Fresno, to acquire several parcels of real property, each improved with a single family residence, in the vicinity of the Fresno Air Terminal. In addition to determining the fair market value of each of the five parcels at issue, the jury awarded the five homeowners damages becaus...
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Opinion Appellant Rudolph Pineiro was charged by information with murder. A jury found him guilty of the lesser included offense of involuntary manslaughter. He was placed on probation for three years on condition (among others) that he serve one year in the county jail. He appeals from the. order granting probation. Procedural Sequence The information against appellant was filed on Decembe...
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Opinion Plaintiff appeals from an order of the superior court denying plaintiff’s motion to set aside judgment and specially set case for trial after judicial arbitration. We reverse. *927 The only statement of facts before us is that of appellant, since respondent has not filed a brief with this court, after a request to do so pursuant to California Rules of Court rule 17(b). Therefore, pu...
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Opinion Defendant was the elected District Attorney of Shasta County. In an accusation presented by the grand jury on July 11, 1980, he was charged with seven counts of wilful and corrupt misconduct in office. A jury found defendant guilty of of one count of wilful misconduct, acquitted him of three other counts and was unable to arrive at a verdict on the remaining three counts. Defendant appe...
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Opinion A central question in this appeal is whether a school employee, terminated because his position expires, is required to file a claim under the Government Tort Claims Act (Gov. Code, § 800 et seq.) 1 when he seeks damages for the school’s tortious refusal to rehire him to a later-created, similar position. We contrast the exemptions to the required filing of claims set f...
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*952 Opinion Following a true finding he possessed concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)), Waylon M. was granted probation. He appeals contending there was insufficient evidence to support the true finding. Waylon was arrested on January 20, 1980. While being booked he removed several items from his pocket the arresting officer later testified “resemb...
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Opinion A jury convicted Cedric Jackson of arson (Pen. Code, §451, subd. (b)) and he was sentenced to prison. He appeals claiming sentencing error. The sentencing hearing was set for May 28, 1981, 27 days after the verdict was pronounced. On that date, defense counsel asked for a continuance, explaining Jackson had been examined by a psychiatrist and he was awaiting the doctor’s report so he ...
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Opinion This is an action for a declaration of rights with respect to the application of a regulation of the Board of Osteopathic Examiners providing that all applicants for licenses must have graduated from a school approved by the board. Both the plaintiff and the defendant board moved for a summary judgment. The trial court granted the board’s motion, denied the plaintiff’s motion and entered a...
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Opinion The People petition this court for a peremptory writ of mandate directing respondent superior court to vacate its findings that real party in interest was to be dealt with in the juvenile court on various felony charges. We shall grant the petition and shall order real party in interest to be tried as an adult. Facts The following procedural facts constitute the corp...
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Opinion MALKUS, J. * Philip J. Rooney petitioned for a writ of mandate in the superior court directed to the San Diego Community College District (District) and its governing personnel. Rooney completed 23 years of active military service in the United States Navy before starting to work for the District beginning with the 1969-1970 school year. He has worked for the District since that tim...
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129 Cal.App.3d 984 (1982) 181 Cal. Rptr. 468 In re PABLO C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. PABLO C., Defendant and Appellant. Docket No. 24815. Court of Appeals of California, Fourth District, Division One. March 22, 1982. *986 COUNSEL John R. Farris, Jr., for Defendant and Appellant. George Deukmejian, Attorney General, Robert H. Philibosi...
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Opinion An eight-count information charged David Lee Williams with (1) the robbery of Paul Burkhart (Pen. Code § 211),1 (2) the robbery of Laura Rule (§ 211), (3) assault with intent to commit murder of Lloyd Waugh (§ 217), (4) assault with a deadly weapon on Peace Officer Lloyd Waugh (§ 245, subd. (b)), (5) taking of an automobile (Veh. Code § 10851), (6) possession of a sawed-off shotgun (§ 1202...
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Opinion These two petitions challenge denial of motions to dismiss (Pen. Code, § 995) in a special circumstance murder prosecution against two defendants. Petitioners raise a number of objections centering upon the adequacy of the evidence. We accept the contention that the evidence does not support the special circumstance allegations that victim Louis Reyes was killed while defendants w...
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Opinion Gregory Maurice Ferguson appeals from a judgment of imprisonment after one jury found him guilty of four counts of grand theft (Pen. Code, § 487) charged in an information and another jury found him guilty of one count of check fraud (Pen. Code, § 476a) charged in a separate information. The facts of the two cases, designated in the trial court as MCR 3597 and MCR 3598, will be reviewed...
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Opinion Rodney Lee Blessing petitions for a writ of habeas corpus and, in essence, asks that we reduce his aggregate term of imprisonment by the four years that resulted from his having used a firearm in the commission of consecutive subordinate offenses. We affirmed the original judgment in People v. Blessing (1979) 94 Cal.App.3d 835 [155 Cal.Rptr. 780]. 1 Petitioner is no stranger to th...
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Opinion Defendant Charles Koberg appeals from a judgment declaring that he is not entitled to coverage under a policy of insurance issued to him by plaintiff Farmers Insurance Group (Farmers). We affirm the judgment. *1035 Facts Koberg suffered injuries as a passenger in a “dune buggy” when it overturned while driven by its owner, Allen Blankers, 1 across sand dunes at Pismo Beach, Cali...
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*Supp. 12Opinion The People appeal from an order granting defendant’s motion pursuant to section 1538.5 of the Penal Code to suppress evidence. We reverse. It should be noted that defendant has not filed a respondent’s brief on appeal. In some cases, the failure to file a respondent’s brief has led the reviewing court, without reference to the record, to assume appellant’s points are well-taken an...
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Opinion Following the assassination of San Francisco’s may- or, George R. Moscone, his successor as mayor asked the city’s attorney for an opinion whether (1) the board of supervisors might by ordinance appropriate money to be held in trust, the income from which would be paid to the surviving dependents of elected officials who are assassinated while in office, and (2) if so, might such an ord...
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Opinion Defendant’s demurrer to plaintiff’s complaint for personal injury was sustained without leave to amend. Plaintiff appeals from the ensuing judgment (order) of dismissal. The principal issue presented by this appeal is whether the provisions of Insurance Code section 11583 1 should preclude defendant from asserting the one-year statute of limitations (Code Civ. Proc...
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Opinion This matter arises out of the prosecution of appellant, Stanley Kain, on 35 counts alleging various sex crimes committed against his natural daughter and his stepdaughter, both under the age of 14 years. The Ventura County District Attorney was the prosecutor in the criminal matter and that office had also been appointed, pursuant to Welfare and Institutions Code section 351, to r...
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Opinion Appellant John W. Dresser, Ph.D., appeals from a judgment of the superior court denying him mandamus relief upon administrative review of Board of Medical (Quality Assurance (hereafter Board or Committee) action revoking his, license as a psychologist. He contends that: (1) the Board’s decision is invalid because it was based entirely on past conduct, rather than evidence of Dr. Dresser...
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Opinion The principal question in this appeal is whether the juvenile court is required to use the comparable civil measure of damages when fixing the amount of restitution to be paid to a victim of theft. We hold that the court may use any rational method of fixing the amount of restitution which is reasonably calculated to make the victim whole and which is consistent with the purpose o...
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Opinion The sole issue on this appeal is whether Revenue and Taxation Code section 13880 offends the equal protection clauses of the federal and state Constitutions because it exempts from state inheritance tax benefits accruing under “any public retirement system” without at the same time extending a like exemption to benefits payable under a private pension plan.1 James Earl Morrison worked for...
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Opinion On February 12, 1981, defendant was arrested for burglary. At that time he had been a parole absconder since September 10, 1980. On February 13, 1981, a parole hold was placed on him. This parole hold contained charges of five violations, only one of which was the burglary. The others were (1) failure to keep his parole agent notified of his whereabouts, (2) failure to comply with month...
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Opinion Katherine Q., mother of Courtney S., appeals from orders of the juvenile court which found Courtney to be a dependent child of the court within the meaning of Welfare and Institutions Code section 300, subdivision (d), and which directed that Courtney be removed *571from her mother’s custody and placed in the custody of her father, Paul S. We first summarize the relevant portions of the r...
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Opinion Defendant Dolores Aboytes Viniegra was convicted on a jury’s verdicts of (count one) fraud in obtaining public aid in violation of Welfare and Institutions Code section 11483, (count two) perjury in violation of Penal Code section 118, and (count three) fraudulent acquisition of federal food stamps in violation of Penal Code section 396. She was thereafter placed upon conditional probat...
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Opinion Respondent obtained a judgment against appellant declaring that it has an easement of way by prescription across certain real property now owned by appellant. The servient parcel The parcel now owned by appellant was owned by the Tash family from 1892 until 1962, when Robert Blohm purchased it from the estate of Mrs. Tash. Mrs. Tash leased the property to Alfonso Gal...
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Opinion This petition challenges the trial court’s imposition of an aggravated term based in part upon prior convictions which were dismissed as part of a plea bargain. We conclude, based upon People v. Harvey (1979) 25 Cal.3d 754 [159 Cal.Rptr. 696, 602 P.2d 396], that an implicit term in the plea bargain was that the priors would not be used to aggravate petitioner’s term. Therefore, we g...
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Opinion The appeal and cross-appeal in this case raise issues relating to the admissibility of patient medical records from the hospital and the doctor’s office, respectively, in a disciplinary hearing before the Division of Medical Quality and the Board of Medical Quality Assurance (hereinafter referred to collectively as the Board). Roger Fating, M.D., appeals from a judgment granting h...
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Opinion A petition before the juvenile court against appellant, a minor, for possessing a knife with a four-inch blade on public school grounds in violation of Penal Code section 626.10, a misdemeanor, was sustained. Appellant was made a ward of the court pursuant to Welfare and Institutions Code section 602 and placed on probation at home in his mother’s custody with a number of conditions. ...
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Opinion Statement of the Case This is an appeal from an administrative mandamus judgment holding that the appellant board improperly denied respondent employee’s claim for unemployment disability benefits. In denying the claim, the board upheld the administrative law judge’s (ALJ’s) decision that respondent had received the maximum amount of benefits payable to an individual for any one disab...
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Opinion Steven Vela Prado appeals from a judgment of imprisonment after a jury found him guilty of the following felonies: *672 Count I robbery of Ahmad Ahmad and the Mayfair Market Pen. Code, § 211 Count II assaulting Robert Hansen with a deadly weapon, and by means of force likely to produce serious bodily injury Pen. Code, § 245 Count III burglary of the Mayfair...
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*679Opinion Frances V. Williams appeals from judgment denying her petition for writ of mandate to compel respondents to reinstate her to the position of relief commercial service representative with respondent Los Angeles City Department of Water and Power (DWP) or grant her a hearing on her termination therefrom. The appellate issue is whether, as a temporary part-time noncivil service employee w...
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Opinion Raymond Carter and John Felix Leiva pleaded guilty to conspiring to commit grand theft (Pen. Code, § 182, subd. (1)) after the superior court denied their motions to suppress evidence (Pen. Code, § 1538.5). Both appeal. Fed-Mart security guard James Crum saw Carter and Leiva take a hose reel out of its box in the Fed-Mart Store. Carter then filled the box with expensive tools...
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Opinion Defendant appeals from a judgment following an uncontested trial in which the court ordered defendant to pay plaintiff the amounts due on two promissory notes plus interest, costs, and attorney’s fees. Defendant argues that he did not have actual notice of the trial and that the judgment should be reversed to allow him to be heard on the merits. Defendant also argues that certain ...
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Opinion Plaintiff, the provider of materials under a subcontract on a construction project, appeals from an order granting summary judgment in favor of defendant, the construction lender. 1 The *701 motion for summary judgment, based on uncontradicted facts, was granted because the preliminary notice required by statute was not delivered by certified or registered mail. With reference to th...
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*724 Opinion On September 15, 1979, appellant David Russell Elston was arrested for felony child abuse (Pen. Code, § 273d). On September 24, 1979, appellant waived his right to a preliminary examination in the Justice Court of Mariposa County. An information (No. 671) charging felony child abuse was thereafter filed in the Mariposa County Superior Court on September 24, 1979, and arraignmen...
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*738 Opinion Nature of Case: Petition by named plaintiffs in a class action for writ of mandate or prohibition or other appropriate relief to prevent discovery from unnamed class members. We originally denied the petition. By subsequent order the Supreme Court of California directed this court “to issue an alternative writ of mandate to be heard before [this] court when...
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Opinion An employer issues an order in English to an employee who does not speak English. The employer utilizes a fellow worker as interpreter. The employee disobeys the order and is terminated for such conduct. He files a claim for unemployment insurance benefits. This case poses the question of how the employer must prove in administrative proceedings that the order was communicated to the ...
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*760 Opinion Appellant was convicted by a jury of robbery and assault with a deadly weapon and two firearm use charges (Pen. Code, § 12022.5). He was also found to have been convicted of four pri- or felonies: on December 16, 1959, of possession of metal knuckles (Pen. Code, § 12020); on January 9, 1961, of possession of a dirk or dagger while in prison (Pen. Code, § 4502); on Ja...
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Opinion This mandate proceeding is brought to review an order of the superior court denying a motion to quash a second notice of lis pen-dens which was filed after another judge had quashed an earlier notice of lis pendens recorded by the same party in the same case. We conclude that (1) It was improper to file a second notice of lis pendens without the consent of the court and (2) assumi...
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Opinion On November 12, 1980, real party in interest, who was then in the custody of the Sheriff of Los Angeles County, filed a petition for writ of habeas corpus in respondent superior court seeking an order quashing a Florida demand and Governor’s warrant of extradition. 1 On December 5, 1980, respondent ordered the warrant and demand quashed, after stating that Florida had failed to bring ...
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Opinion Minor, a student at a public school had an altercation with a teacher and threatened to “pop” him. The juvenile court found to be true an allegation filed under Welfare and Institutions Code section 602 that minor had violated Education Code section 44811. Education Code section 44811 provides “Every parent, guardian, or other person who upbraids, insults or abuses any teacher of the publi...
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Opinion This is an appeal by the People from an order dismissing a charge of offering to sell heroin (Efealth & Saf. Code, § 11352; Pen. Code, § 1203.07) granted pursuant to Penal Code section 995. Respondent was originally charged with five counts of sale of heroin (Health & Saf. Code, § 11352) and one count of offering to sell, but the latter charge and one sale count were dismissed by the magi...
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Opinion On appeal from a judgment of nonsuit, we consider whether the evidence presented a question of fact under an insuring agreement providing for payment of accidental death benefits for injury sustained as a result of “external means.”1 We conclude that under applicable principles of law, the order of nonsuit was erroneous requiring reversal. The record discloses the following: Decedent was ...
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Opinion Facts Respondent, Rivcom Corporation (Rivcom), applied to appellant, Appalachian Insurance Company (Appalachian), for a policy of fire insurance, to cover ranching property in Ventura County. Appalachian issued the policy effective March 8, 1979, with coverage in excess of $4.9 million. 1 As required by Insurance Code section 2071, the section setting forth the s...
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Opinion The issue before us on this appeal is whether the gift taxes paid by the donor-decedent prior to her death are includable in her gross estate for inheritance tax purpose. Surprising as it may seem, this issue has not been directly determined in this state. *833The facts are these: On July 2, 1974, Ethel Bayley Fowler, decedent, established an inter vivos trust in which she retained a life...
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Opinion Appellants, City of Los Angeles (City) and Los Angeles City Council (Council), appeal from a judgment granting respondents’, Oscar and Miriam Krater’s (Krater), petition for a writ of mandate to set aside the Council’s decision to deny Krater’s application to convert a 32-unit apartment complex to a 35-unit condominium. The Fulton Apartments, owned by respondents Krater, is a 32-unit ...
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Opinion In Parnell v. Superior Court (1976) 61 Cal. App.3d 430 [132 Cal.Rptr. 535], we held in a per curiam opinion that a hearing in a criminal case on a motion under Penal Code section 1538.5 for the suppression of evidence did not constitute a proceeding “relating to the merits” within the meaning of Code of Civil Procedure section 170.6. We have reexamined that ex cathedra ...
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Opinion Steven and April Gonzales appeal a judgment of dismissal following the sustaining of City of San Diego’s (City) demurrer without *884leave to amend to their second amended complaint for the wrongful drowning death of their mother. We hold the facts alleged state a cause of action under Government Code section 8351 for public entity liability arising from injury caused by a dangerous condit...
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*895 Opinion In practical terms, the question in this appeal is which of two insurers, defendant Great American Insurance Company or Highlands Insurance Company, should pay the $32,948 in damages caused by fire to a leased restaurant building in Santa Rosa. Before this simple question may be answered, we must determine (1) whether plaintiffs, California Food Service Corp., Inc. a...
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Opinion San Quentin Prison appeals from a minute order by the Marin County Superior Court granting habeas corpus relief other than a release from custody to prisoners at that institution and from a minute order denying the prison administration’s request for reconsideration of the court’s order. 1 Terry Stone, Ruben Ruybal and Angelo Mendoza (hereinafter petitioners) petitioned the court fo...
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Opinion Petitioner, State Compensation Insurance Fund (hereafter defendant), seeks annulment of a decision of the Workers’ Compensation Appeals Board (hereafter Board) granting penalties, costs and fees in favor of respondent Joe R. Brown (hereafter plaintiff). *937 On August 30, 1977, plaintiff was injured when the taxicab he was driving was rear-ended. On November 30, 1977...
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Opinion Owners of fifty-four (54) homes located near John Wayne Orange County Airport (airport) filed inverse condemnation actions against the County of Orange claiming that the county had damaged and diminished the market value of their homes by subjecting them to frequent jet overflights, fallout of soot and fumes from jet aircraft, excessive noise and vibrations from “runups” (warm up ...
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Opinion Jan Pick, M.D. (petitioner) appeals from a judgment denying his petition for writ of mandate to compel his admission to the medical staff of Santa Ana-Tustin Community Hospital (hospital) and for damages. Petitioner’s appellate contentions are that the findings of hospital’s governing body are insufficient as a matter of law to support his exclusion from medical staff membership a...
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Opinion Appellant was convicted on his plea of nolo contendere of voluntary manslaughter (Pen. Code, § 192, subd. 1). The trial court sentenced him to prison for the six-year upper base term, stating these reasons: “Crime involved great violence, great bodily harm, or other acts disclosing a high degree of cruelty, callousness or visciousness [sic], whether or not charged or chargeable as an ...
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Opinion The estate of Richard F. Dailey appeals from a judgment ordering that respondents Eugene and Bernice Stoop each receive $5,000 from the estate. The Facts In July 1980, respondents petitioned the court pursuant to Probate Code section 1080 for a determination of their entitlement to a distribution from the estate of Richard Dailey.1 In particular, each claimed *996entitlement to a bequest...
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Opinion Ezekiel Benson, convicted of two counts of robbery, violations of Penal Code section 211, and the allegation that he had been armed with a firearm in the commission of each, having been found true, was sentenced to prison for a period of eight years—four years (the upper term) for the principal term, one year for an arming enhancement, two years for prior convictions, and one year on th...
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*1029 Opinion On a jury’s verdicts defendant Darryl L. Goldstein was found guilty of perpetrating 17 counts of felony against 3 victims, including the crimes of false imprisonment effected by violence (Pen. Code, §§ 236, 237), inducing a minor to use a narcotic drug (Health & Saf. Code, § 11353) and marijuana (Health & Saf. Code, § 11361), administering a narcotic to another to e...
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Opinion The People of the State of California appeal from the trial court’s order modifying the sentence of respondent Richard J. Laue, aka Matheson (hereafter defendant), following resentencing conducted pursuant to Penal Code section 1170, subdivision (d). 1 Defendant had been sentenced to five years in state prison following a plea of guilty. The modification reduced the sentence to four y...
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Opinion Introduction Appellant Sylvia J. Tannatt (plaintiff) appeals from an order of dismissal of her complaint as to respondents Joseph Joblin, Esq. (Joblin), Associated Bond and Insurance Agency (Associated), and National Automobile and Casualty Insurance Company (National), pursuant to Code of Civil Procedure section 583, subdivision (a).1 *1065Facts On April 12, 1977, plaintiff filed her “Com...
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Opinion Appellant, Charlene P. Rosack, appeals from the trial court’s order dismissing the class action after denial of her motion for class certification in her antitrust suit against Volvo 1 for treble damages for violation of the Cartwright Act (Bus. & Prof. Code, § 16700 et seq.). The dismissal was operative only against the class and not against the named plaintiff, Charle...
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Opinion Appellants, Carlos Polk and Michael David Shipp, were each charged with one count of murder, eight counts of robbery, and one count of kidnaping for the purpose of robbery. As to all counts, it was also alleged that in the commission of the offenses defendant Polk used a firearm and that a principal in each offense was armed with a firearm. It was also alleged that the murder was commit...
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Opinion Plaintiffs, Ryan Dincau, a minor, and his parents Ronald A. Dincau and Nancy Kay Dincau, appeal from a judgment for defendants after trial by jury. The case, involving a complaint of medi *786 cal malpractice against two doctors, concerns the events from Friday, February 22, 1975, until Monday, February 25, 1975, when it was diagnosed that the Dincau’s eight-week-old baby, Ryan, had b...
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*807 Opinion In this case we consider the principles of apportionment for a prior disability under the Workers’ Compensation Act. Applicant Terry Ditler sustained cumulative psychiatric injury while employed from September 19, 1969, through September 27, 1977, as a teacher by the San Juan Unified School District. There is no dispute that the injury sustained was work-related or that the disab...
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131 Cal.App.3d 816 (1982) 182 Cal. Rptr. 813 LAGUNA PUBLISHING COMPANY, Plaintiff and Appellant, v. GOLDEN RAIN FOUNDATION OF LAGUNA HILLS, Defendant and Respondent. Docket No. 20650. Court of Appeals of California, Fourth District, Division Two. May 18, 1982. *820 COUNSEL W. Mike McCray for Plaintiff and Appellant. Pacht, Ross, Warne, Bernhard & Sears, Michael D. Koomer, Scott Z. Zimmermann ...
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Opinion The present appeal arises in the following circumstances. Appellant was the lessee of a parcel of property in the City of Concord on which it operated an outdoor motion picture theatre. Respondent Redevelopment Agency of the City of Concord (hereafter the Agency), a public body, entered into an agreement with Delta Bingham Joint Venture (hereafter Delta) on January 16, 1...
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Opinion This proceeding in mandate, initiated by a defendant in a criminal action seeking pretrial review of a denial of his motion to *887 dismiss, presents a conflict between an in-custody defendant’s right to speedy trial as specified in Penal Code section 1382, subdivision 2, and the statutory preference for trying jointly charged defendants in the same proceedings as stated in Penal Code...
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Opinion By jury trial appellant was convicted of kidnaping (Pen. Code, § 207) and child stealing (Pen. Code, § 278). She was sentenced to state prison. In Los Angeles, on October 31, 1978, appellant took an 11-month-old boy, Alex Thatcher, from the custody of his mother, Janet Thatcher, and boarded a bus to Mexico. The mother never saw the child again. Appellant told the authorities that she ...
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Opinion Defendant was charged with possession of heroin for sale in violation of Health and Safety Code section 11351; he *904 was found guilty of possession (a lesser included offense) in violation of Health and Safety Code section 11350. Probation was denied and defendant was sentenced to state prison for the middle base term of two years. It is unnecessary to set forth a full statement o...
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*916 Opinion In Altschul v. Sayble (1978) 83 Cal.App.3d 153 [147 Cal.Rptr. 716], fee splitting contracts between lawyers were held to be unearned forwarding fee arrangements and unenforceable as being contrary to public policy. This appeal presents the same question under somewhat different circumstances. At the time Altschul was decided, Rules of...
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Opinion Appellant, Rosa Salinas, appeals from a judgment of conviction of second degree murder (Pen. Code, § 187) and of inflicting cruel and corporal punishment on a child (Pen. Code, § 273d). The court sentenced her to the middle term of six years on the murder conviction and imposed a concurrent term on the conviction of corporal punishment upon a child. The Evidence In Septe...
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Opinion This appeal is by defendant City and County of San Francisco from a judgment awarding $58,479.30 to repair respondents’ home. The trial court determined repair costs as of the time of trial rather than at the time of injury seven years earlier. Appellant alleges this erroneously increased the award by some $18,000. Appellant also challenges the award as being speculative, excessiv...
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Opinion Plaintiff, Matthew Hamilton, appeals from the judg *985 ment entered in favor of defendant, County of Los Angeles, after a court trial in his action under the Jones Act (46 U.S.C. § 688) and the general maritime law. Plaintiff was employed as a lifeguard and a rescue boat lieutenant by the County of Los Angeles and was permanently assigned to the rescue vessel ...
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131 Cal.App.3d 1031 (1982) 182 Cal. Rptr. 720 STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff and Respondent, v. NANCY CAROL KOHL et al., Defendants and Appellants. Docket No. 63707. Court of Appeals of California, Second District, Division Two. May 20, 1982. *1033 COUNSEL Cohen, England, Whitfield & Osborne, Thomas B. Osborne, Robert A. McSorley, Henderson & Smith and David L. Allen for ...
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Opinion Defendant John Michael Budish was charged in an information with unlawfully burning inhabited structures and property (Pen. Code, § 452, subd. (b)) and forest land (Pen. Code, § 452, subd. (c)). The People appeal from a superior court order setting aside the information after granting defendant’s motion pursuant to Penal Code section 995. We affirm. Early in November of 1980, Roy Mart...
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Opinion Defendant was charged with murder in violation of Penal Code section 187. 1 He was convicted by jury of murder in the second degree. The facts are that Mr. Smolk was killed and his body placed in a trash bin. Death was attributed to choking-suffocation. The body was found on October 5, 1980. The victim had owned a maroon and silver Buick Regal car, license No. 468YOQ, and a televisi...
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*3Opinion Introduction Petitioner [International Association of Heat and Frost Insulators and Asbestos Workers, Local No. 5] seeks, by writ of certiorari, review of an order finding petitioner in contempt for violation of a temporary restraining order and imposing a fine of $2,000. Background The parties have stipulated to the facts. On April 10, 1981, real party in interest Southern California E...
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Opinion By this decision, we establish January 1, 1977, as the effective and operative date of the constitutional amendment which eliminated the principal office deduction for real estate taxes paid by insurance companies. We reverse the judgment of the trial court which had affirmed the ruling of the California State Board of Equalization (hereinafter respondent) that the amendment was effecti...
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Opinion Petitioners, California Teachers Association and named permanent certified employees of the Goleta Union School District, appeal a judgment denying a petition for a peremptory writ of mandate. The petition sought to set aside a decision of the respondent, Board of Trustees of the Goleta Union School District (hereinafter Board), not to rehire the named employees for the 1980-1981 school...
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Opinion Appellant Michelle Kalina, a certificated community college instructor, appeals from a judgment denying her petition for writ of mandate to compel respondents, the San Mateo Community College District and the Governing Board of the San Mateo Community College District, to classify her as a probationary employee pursuant to Education Code section 87482 and to compensate her for any...
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*69Opinion his is an appeal from a judgment of the Ventura County Superior ...
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Opinion Appellants County of Los Angeles, a political subdivision of the State of California, and City of Los Angeles, a municipal corporation, appeal from a judgment (partial order of dismissal) dismissing these consolidated actions as to respondents Farmers Insurance Exchange and Interinsurance Exchange of the Automobile Club of Southern California (Code Civ. Proc., § 581, subd. 3) following ...
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132 Cal.App.3d 119 (1982) 183 Cal. Rptr. 256 THE PEOPLE, Plaintiff and Respondent, v. JOHN ELIAS MARTINEZ, Defendant and Appellant. Docket Nos. 11725, 11727. Court of Appeals of California, Fourth District, Division One. May 24, 1982. *122 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Victoria Sleeth, Deputy State Public Defender, for Defendant and Appe...
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Opinion Defendants, Leroy Green and his brother, Danny Green, were each charged by a separate information with two counts *4of sale of heroin, in violation of section 11352 of the Health and Safety Code. The first sale was alleged to have occurred on June 6, 1978, and the second on July 11, 1978. Following a joint trial, Danny was convicted of both counts charged, and Leroy was convicted of the J...
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Opinion The Franchise Tax Board appeals from a judgment awarding to respondent Anaconda Company refund of $3,423,349.32 taxes paid under the Bank and Corporations Tax Law for income years of 1955 through 1969 inclusive. The court also awarded interest on the disputed amount. The question ón appeal is whether, under undisputed facts, the trial court acted correctly when it determined that ...
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Opinion Michael David Aguilar appeals from a judgment of the Santa Clara County Superior Court which summarily denied his petition for writ of prohibition. We reverse. Facts Aguilar was cited on two occasions for violating Los Gatos Town Code, chapter 16, article X, section 16-105, which prohibits “cruising” in the city’s central business district. The ordinance defines “cruising” as “drivi...
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Opinion These two proceedings present a single question: whether equal protection entitles mentally disordered sex offenders (MDSOs) to a reduction of their maximum term of commitment by conduct credits for precommitment and midcommitment custody. We hold it does not. *41 Facts In each case the defendant, having been found guilty of a sex related crime, was found to be a MDSO amenable to ...
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130 Cal.App.3d 44 (1982) 181 Cal. Rptr. 613 DAVID MICHAEL MACKLER, Plaintiff and Respondent, v. DORIS ALEXIS, as Director, etc., Defendant and Appellant. Docket No. 62477. Court of Appeals of California, Second District, Division One. March 24, 1982. *46 COUNSEL George Deukmejian, Attorney General, Richard D. Martland, Assistant Attorney General, Henry G. Ullerich and Christopher C. Foley, Deputy...
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*96 Opinion Plaintiffs in a class action brought on behalf of “all women who are or in the future will be incarcerated at Sybil Brand Institute for Women” against the County of Los Angeles and others, appeal from judgment entered therein, contending: 1 1. The due process clause of the California Constitution mandates strict scrutiny of substantial restraints on pretrial detainees’ liberty...
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Opinion Appellant argues that the People are collaterally es-topped from proceeding with the criminal charges because in a prior probation revocation hearing the trial judge did not find those charges to be true. He appeals from the superior court’s denial of his petition for a writ of prohibition to prevent the respondent municipal court from proceeding with charges of certain violations...
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*126 Opinion Plaintiff, Joanne Lee, appeals from a judgment entered denying her petition for a writ of mandate. Plaintiff sought to compel the Board of Administration (Board) of the Public Employees’ Retirement System (PERS) to award her certain death benefits for the death of Thomas Sheehan. For reasons which follow, we will affirm the judgment. We hold, as to the principle...
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Opinion J. C.Rives (husband) appeals from an interlocutory judgment of dissolution of marriage entered after protracted dissolution *145 proceedings. Jessie E. Rives (wife) cross-appeals from the judgment. Among other things, the interlocutory judgment awarded the parties’ community property queen bee business, known as “Rives Queens,” to husband, and awarded the parties’ community property q...
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Opinion Gregory Krueger brought this action for injuries allegedly received during his encounter with stadium guards working for the City of Anaheim. The guard, William Rafter, and the city seeking reimbursement for its workers’ compensation payments, cross-complained for damages. Rafter dismissed his action. Summary judgment was granted in favor of Krueger on the cross-complaint of the c...
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Opinion Appellant Ronnie Gee was charged with burglary, robbery, and false imprisonment. After denial of his motion to suppress evidence, he entered a plea of nolo contendere to burglary, and the other charges were dismissed. The court found him guilty and sentenced him to two years imprisonment. This appeal followed. 1 We hold that the trial court properly denied the suppression motion. Acco...
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Opinion Defendant and appellant Anthony Paul Olgin appeals from the judgment of the Superior Court of Contra Costa County entered after a jury found him guilty of a violation of Penal Code section 459 (burglary). Appellant’s sole contention on appeal is that he was not advised, and therefore did not waive, his constitutional right to confrontation before admitting two prior felony convictions. ...
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Opinion Plaintiff, respondent and cross-appellant Dennis R. Hill (hereafter respondent) filed a claim with the Labor Commissioner in February of 1978, seeking severance pay and a bonus from defendants, appellants and cross-respondents Kaiser Aetna and KACOR Realty, Inc. (hereafter appellants). The Labor Commissioner ruled that respondent was not entitled to a bonus nor severance pay. Purs...
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Opinion Appellant Selman Buddy Brice was charged by complaint with murder of Thomas Anthony Walker (Pen. Code, § 187). 1 After a five-day preliminary hearing, the magistrate denied a timely and specific defense request for findings on the sufficiency of evidence of six other crimes shown by the evidence but not mentioned in the complaint, 2 and held Brice to answer on the murder charge. B...
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130 Cal.App.3d 222 (1982) 181 Cal. Rptr. 652 TODD SHIPYARDS CORPORATION, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent. Docket No. 63009. Court of Appeals of California, Second District, Division One. March 25, 1982. *223 COUNSEL Parker, Milliken, Clark & O'Hara, Everett F. Meiners and Bruce D. May for Plaintiff and Appellant. Ira Reiner, City Attorney, Thomas C. B...
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*260 Opinion This appeal involves the interpretation of an insurance contract to resolve a question of coverage. The issue here is whether a liability insurance policy covering the insured’s car supplies excess coverage for plaintifFs injuries; the injuries were sustained in an accident which occurred while the insured was driving her father’s automobile rather than her own car. The trial cou...
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Opinion I Statement of the Case and Facts On August 13, 1980, information number A-359758 was filed against appellant charging two counts of robbery. Appellant was represented by *266 the public defender and entered a plea of guilty to Penal Code section 487, subdivision 2 (grand theft from the person), on January 21, 1981. On April 10, 1981, sentence was pronounced. Proceedings were su...
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Opinion Appellant, Don E. Sharp, filed a petition for the appointment of a conservator for his mother, respondent Emma Belle Gollock. The matter was tried to a jury which rendered a special verdict in respondent’s favor. Judgment was entered for respondent who thereafter filed a cost memorandum. Appellant moved to tax costs. A hearing was held, at which both parties and their attorneys were prese...
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Opinion Claimant Lee Menconi appeals from the trial court’s order denying her creditor’s claim and petition filed under Probate Code section 851.5.1 The trial court determined it had no jurisdiction to authorize payment. We affirm. The Facts Stanley Sayles executed a promissory note for $30,000 secured by a deed of trust, in favor of his niece Lee Menconi in 1974.2 In exchange, *277Lee agreed to l...
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Opinion Plaintiff filed this action for personal injuries, alleging that defendants’ negligence proximately caused him injury. Defendants answered with a general denial and asserted plaintiff’s negligence. In telephone conversations three days before trial, the parties’ respective counsel agreed on a settlement figure of $5,000. Plaintiff’s counsel conferred by telephone with plaintiff. Plain...
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Opinion Appellant was charged by information filed May 20, 1980, with assault by means of force likely to produce great bodily harm, assault with intent to commit rape, and forcible oral copulation (Pen. Code, §§ 245, subd. (a), 220, 288a, subd. (c)), allegedly committed against “Susan” on or about March 7, 1980. He was arraigned and pled not guilty to each count on May 27, 1980. Jury trial w...
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Opinion Plaintiffs, employees of the Berkeley Fire Department (hereafter respondents), brought this action against the City of Berkeley, its City Council, and certain city officials (hereafter collectively appellants), challenging the promotional procedures laid down in the city’s Affirmative Action Program (hereafter AAP). Respondents invoked the Fourteenth Amendment of the United States...
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Opinion The State Controller appeals from an order fixing inheritance tax made by the superior court.1 The order sustained objections filed by the executor of the estate of Edna Louise Lake to the report of the inheritance tax referee. Edna Louise Lake’s will provided that her estate be distributed in the following order: 1) tangible personal property to be distributed to 14 legatees; 2) a condit...
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Opinion Ed Zweigle appeals from a judgment which ruled that both he and Ed Zweigle, Inc., were bound by the 1974-1977 and 1977-1980 Carpenters 46 Northern California Counties Master Agreements and which confirmed and ordered him to comply with an *340 arbitration award against him “operating as J.E.S. Construction Co.” Zweigle contends that the judgment cannot be sustained si...
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Opinion Introduction Appellant Lewis R. Titus, Jr. appeals from a judgment denying his petition for a peremptory writ of mandate to compel respondent Los Angeles County Civil Service Commission to order the reinstatement of appellant to his position of lieutenant in the sheriffs department. Statement of Facts 1 Appellant had been employed as a peace officer in the sheriffs department si...
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Opinion Introduction Plaintiff Frances Taeleifi appeals from an order of dismissal entered after the trial court sustained without leave to amend the demurrer of defendants Southern California Rapid Transit District (S.C.R.T.D.) and Prince Williams (Williams) to plaintiff’s second amended complaint. *368 STATEMENT OF FACTS 1 The second amended complaint discloses the following allegat...
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Opinion Defendant William James Clark was granted probation after a jury found him to be guilty of involuntary manslaughter. (Pen. Code, § 192, subd. (2).) He appeals contending: (1) He acted in self-defense as a matter of law. (2) The trial court erred in instructing the jury on involuntary manslaughter. (3) The prosecution introduced improper and prejudicial evidence of the peaceable characte...
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Opinion Prior to January 1, 1981, an order to set aside an indictment or information pursuant to Penal Code section 995 was not a bar to future prosecution for the same offense. (Pen. Code, § 999.) Effective January 1, 1981, the Legislature amended Penal Code section 1387 to provide that an order terminating an action under certain specified Penal Code sections, including section 995, is a bar ...
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130 Cal.App.3d 398 (1982) 181 Cal. Rptr. 703 SUSAN FLEET WELSCH, Plaintiff and Respondent, v. JOSEPH GOSWICK et al., Defendants and Appellants. BETTY GOSWICK et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SUSAN FLEET WELSCH, Real Party in Interest. Docket Nos. 24797, 26331. Court of Appeals of California, Fourth District, Division One. March 31, 1982. *400 COUNSEL Kar...
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Opinion Statement of the Case This is an appeal from an order granting a new trial pursuant to Code of Civil Procedure section 904.1 after the jury returned a verdict for the defendant State of California (hereinafter State). The trial court specified juror misconduct as the sole reason for a new trial. We also review the trial court’s intermediate order denying the State’s motion for a non...
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Opinion In this opinion we will consider the issues raised in two appeals (1 Civ. No. 47922 and 1 Civ. No. 51438) which were consolidated by this court “for the purposes of oral argument and decision” by an order dated May 22, 1981. Both appeals involve the same proceeding commenced by respondent (wife) to dissolve her marriage to appellant (husband) in the Superior Court of Santa Clara C...
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Opinion Steven H. appeals the order declaring him to be a ward of the juvenile court and placing him on probation. (See Welf. & Inst. Code, § 602.) 1 A petition alleged Steven came within the provisions of section 602 for possessing not more than one ounce of marijuana (Health & Saf. Code, § 11357, subd. (b)). His counsel unsuccessfully moved under section 700.1 to suppress t...
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*457 Opinion Charged with violation of Vehicle Code section 231Q5, subdivision (a), driving under the influence of a drug, defendant brought a motion to suppress evidence resulting from the extraction of a sample of her blood following her arrest. The municipal court granted the motion. The Appellate Department of the Orange County Superior Court reversed and certified the matter to this cour...
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*463 Opinion Jerome Stanley and Stanley & Wing, Inc.,"(hereinafter referred to collectively as Stanley) were the attorneys for the plaintiffs in a municipal court action against Snowfall Corporation. That litigation ended with an award in a judicial arbitration proceeding by which the plaintiffs’ claim was denied. The arbitrator did not award costs to either party. Thereafter Sno...
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Opinion Defendants appeal from an adverse judgment in an action to determine insurance coverage. We affirm. On February 23, 1977, defendant Mcllvain shot and killed David Dominguez. Mcllvain was prosecuted and convicted of first degree murder and his conviction was sustained on appeal to this court. *4 (2 Crim. No. 32913.) Thereafter the other defendants filed a wrongful death action agai...
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Opinion Occasionally a case will challenge the ability of the law, and society, to cope effectively and sensitively with fundamental problems of human existence. This is such a case. Appellant, Brenda Payton, is a 35-year-old black woman who suffers from a permanent and irreversible loss of kidney function, a condition known as chronic end stage renal disease. To stay alive, she must subj...
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*51Opinion Upon the complaint of Laura Malick, respondent of the above described appeal from a civil judgment pending before this court, we issued an order to show cause why Richard Lenzi should not be declared incompetent to act as an official reporter in any court, pursuant to the provisions of Government Code section 69944, for failure *52to timely prepare a reporter’s transcript for use on the...
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Opinion This case involves application of the holding in People v. Winson (1981) 29 Cal.3d 711 [175 Cal.Rptr. 621, 631 P.2d 55] that “[a] preliminary hearing transcript of a witness’ testimony in a *91 defendant’s related criminal case is not a proper substitute for the live testimony of the witness at defendant’s probation revocation hearing in the absence of the declarant’s unavailabili...
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Opinion This is an appeal from a dispositional order of the juvenile court after it was determined that appellant came within Welfare and Institutions Code section 602 by reason of his having committed drunk driving (Veh. Code, § 23102, subd. (a)). The principal issue in this case is whether the Humboldt County District Attorney’s policy of refusing to plea bargain drunk driving charges *97 ...
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Opinion Russell Fridley appeals from a judgment denying his petition for a peremptory writ of mandate. Appellant had sought the writ to compel respondents, the Secretary of State of California and the Registrar of Voters of Santa Clara County, to place his name on the general election ballot of November 4, 1980, as a candidate of the Libertarian Party for the office of state assemblyman for the...
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Opinion The People appeal from a judgment of the Superior Court of Los Angeles County granting probation to the defendant and dismissing one of the charges against him. We reverse. Defendant was charged in a two-count information filed by the District Attorney of Los Angeles County with burglary (count I) and a violation of Penal Code section 288, child molesting (count II). The judgment fr...
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Opinion On February 26, 1979, appellant opened a checking account at a branch of Security Pacific National Bank with a deposit of $150. Another deposit of $1,000 was made the following March 20. The account was then inactive until the latter part of May the same year, though at some time during the period appellant applied for and was granted a check guarantee card and a line of credit in the a...
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*121 Opinion This appeal is from the trial court’s order granting plaintiff and respondent’s motion for partial summary judgment on respondent’s second cause of action to enforce support obligations due under the terms of a written marital settlement agreement entered into by the parties in the State of New York on September 13, 1971. The second cause of action was for breach of the settlemen...
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Opinion By jury trial appellants Jerome Goodall, Cassandra Goodall, Clifford Johns, and Paula Watkins were convicted on three counts: *136 possession of piperidine and cyclohexanone with intent to manufacture phencyclidine (PCP) (Health & Saf. Code, § 11383, subd. (b)), possession for sale of PCP (Health & Saf. Code, § 11378.5), and manufacture of PCP (Health & Saf. Code, § 1...
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Opinion In this appeal we conclude that the fueling of an aircraft “arises out of” its “use or maintenance,” as provided by a policy of aircraft insurance, and that liability for damages proximately caused thereby is within the policy coverage. Facts The action stems from a fire which occurred while Schnack was fueling his aircraft on May 3, 1980, at a hangar owned by him. The f...
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Opinion Appellant, John Arthur Free, was charged jointly with his brother Joe with murder (Pen. Code, § 187). He was tried separately and found guilty of second degree murder. The jury further found that he used a firearm during the offense (Pen. Code, § 12022.5). He appeals, alleging prosecutorial misconduct and instructional error. Facts Appellant, his brother Joe and the decedent Fear be...
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Opinion *172 Statement of Case A. On December 17, 1980, an adjudication hearing, based upon a two-count petition filed November 13, 1980, against appellant under Welfare and Institutions Code section 602, was heard by Judge Robert T. Altman of the Los Angeles Superior Court. Appellant was represented by the public defender and the proceedings reflected that basically involved was a charge...
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Opinion In petitions filed pursuant to Welfare and Institutions Code section 602, appellants Jessie L. and Edward J. were charged in six counts with murder, attempted robbery, assault with a deadly weapon and robbery. After denial of their various pretrial motions, there was a plea bargain in which it was stipulated that the cause be submitted on the police reports, that appellants would ...
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*231 Opinion Defendant Tibor Bela Karsai appeals from a judgment sentencing him to state prison for the term of 26 years after a jury found him to be guilty of false imprisonment with force (Pen. Code, § 236),* 1 oral copulation by force (§ 288a, subd. (c)), and rape by force or violence (§ 261, subds. (2), (3)). Defendant contends: the evidence is insufficient to supp...
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Opinion The Department of Corrections seeks a writ of mandate compelling the Marin County Superior Court to vacate an order of June 19, 1981, which had reinstated “contact” visits at San Quentin State Prison between real party, Warren D. Jordan, and his attorney of record in then-pending superior court No. 7819. The contact visits had previously been terminated by prison officials. The superior...
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131 Cal.App.3d 256 (1982) 182 Cal. Rptr. 426 THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; NICHOLAS BALENTINE GARCIA, Real Party in Interest. Docket No. 53605. Court of Appeals of California, First District, Division Four. April 29, 1982. *257 COUNSEL George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Edward P. O'Brien,...
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Opinion Susan Chipman seeks a writ to compel respondent superior court to take no further action against her in a pending case in which she is charged with possession of stolen property (Pen. Code, § 496). The contention is that the court erred in accepting a nonunanimous verdict. We issue a writ as prayed for. Reception of the Verdict After deliberations, the jury returned to court with a ...
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Opinion Nature of Appeal: Plaintiff appeals from judgment of dismissal after demurrer was sustained in action for wrongful discharge from employment. Plaintiff seeks to have this court declare that Labor Code section 132a is not the exclusive remedy available to her upon her claim of wrongful discharge by her employer because of her filing a workers’ compensation claim for injury. We affirm. ...
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Opinion This is an appeal by plaintiff and appellant Wayne Reeder from a judgment of dismissal which followed a sustaining of de *293 murrers without leave to amend to appellant’s second amended and supplemental complaint. The second amended complaint stated five causes of action. As to defendants and respondents Gloria Petit Longo and Rosita Petit Marvel, the judgment ordered dismissal of th...
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*310 Opinion We granted a writ of review in this case to consider whether an employee’s claim of a cumulative injury (Lab. Code, § 3208.1) to her psyche may be founded upon an honest misperception of job harassment which interacts with a preexisting psychiatric condition so as to cause job stress. We conclude that it may, but agree with the Workers’ Compensation Appeals Board (board), which d...
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Opinion Vincent Ralph Sanchez and Antonio Sanchez (Tony), brothers, were charged with the murder of Randy Kennedy (Pen. Code, § 187 1 ), the attempted nlurder of Gregory Blair (§§ 664, 187) and discharge of a firearm at an inhabited dwelling (§ 246). There were allegations the first two offenses were committed with the use of and while armed with a firearm within the meaning of sections 12022...
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Opinion Statement of the Case . This case involves four consolidated actions filed by 32 plaintiffs. Plaintiffs (hereinafter petitioners) are suing real parties in interest for damages resulting from lead poisoning which occurred when petitioners worked at the Visalia Prestolite Battery plant. Petitioners are members of a local chapter of the United Automobile, Aerospace and Agricult...
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Opinion Environmental Planning and Information Council of Western El Dorado County, Inc., appeals from an adverse judgment on its petition for a writ of mandate and complaint for injunctive relief. Appellant had sought to set aside the El Dorado County Board of Supervisors’ (Board) adoption of amendments to its general plan, arguing that the environmental impact reports (EIRs) prepared fo...
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Opinion Plaintiffs Edison School District and its superintendent (hereafter District) appeal from a judgment denying declaratory and injunctive relief. The legal controversy revolves around a statute enacted as an emergency measure less than three weeks after the adoption on June 6, 1978, of article XIII A, of the California Constitution (Prop. 13). The statute (Stats. 1978, ch. 292 as amended, c...
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Opinion The County of Alameda (County) filed an action for declaratory relief under Revenue and Taxation Code section 538 1 to test the validity of the representative period designated by defendant State Board of Equalization (Board) for assessing nonscheduled aircraft 2 for the 1980-1981 assessment year. County appeals from the judgment granting Board’s motion for summary judgment and deny...
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Opinion In this appeal we determine that an action for professional negligence may be defeated because liability is predicated upon the publication of an injurious falsehood, consisting of the communication of a negligently prepared report to the district attorney for purposes of criminal action, which is absolutely privileged under Civil Code section 47, subdivision 2. We affirm the judgment. Fa...
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Opinion Petitioners City of Sacramento, Officer Kane, and Officer Lem, are defendants in a personal injury action brought by real party in interest John D. George. For convenience we will refer to the parties by their designations in the trial court. Defendants seek a peremptory writ of mandate directing the respondent superior court to vacate its order denying their motions for summary j...
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Opinion Pursuant to the oral stipulation between Darrell E. McGhee and his wife Marion, their interlocutory judgment of dissolution entered on June 21, 1978, contained the following: “10. Both parties waive their right to spousal support from the other party except as to spousal support payments provided herein in the event of non-payment of retirement benefits as provided herein. [1Í] There sh...
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Opinion This appeal stems from a proceeding in mandamus instituted by the Campbell Municipal Employees Association (CMEA) against the City of Campbell, the members of its city council, and various of its managerial employees. CMEA’s complaint was, and is, that the city council violated both its own Employee Relations Ordinance and the Meyers-Milias-Brown Act (Gov. Code, § 3500 et seq.) by estab...
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Opinion On appeal from a judgment committing him to the California Youth Authority, appellant contends that reversible error occurred (1) in failure to obtain a stipulation authorizing the referee to conduct a jurisdictional hearing, and (2) in failure to provide him with a written order and explanation of his right to a rehearing. He also argues against the People’s assertion that an award of co...
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Opinion This petition by the People challenges a trial court ruling that the prospective testimony of Douglas Welsch is tainted by the illegal arrest of Venita Ryan and search of her purse. The trial court suppressed the prospective testimony, and the People seek a writ pursuant to Penal Code section 1538.5, subdivision (o), to reverse that ruling. We issue writ of mandate. On August 27, 1979, whi...
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Opinion Appellant was sentenced to prison, execution suspended, and placed on probation in San Mateo County in April 1977. It was a condition of probation that appellant submit to search by a probation or peace officer “upon reasonable cause.” In September 1977, he was committed to prison in Santa Clara County. In October 1977, the San Mateo County Probation Officer was notified by the bu...
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Opinion Proceedings in mandamus to compel the Superior Court of Los Angeles County to vacate an order expunging a lis pendens. Following this court’s original denial of the petition, the Supreme Court granted a hearing but then transferred the matter to us with directions to issue an alternative writ and calendar the matter for oral argument. The order for transfer referred us to the case of ...
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Opinion In this action for malicious prosecution the trial court sustained a demurrer to plaintiff’s first amended complaint and dismissed the action. The trial court concluded that plaintiff had failed to plead properly that the previous underlying action had been terminated favorably to her. By taking judicial notice of the file in the previous action the trial court concluded that it would b...
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Opinion Defendant was charged with robbery, a violation of Penal Code section 211, and personal use of a handgun within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1). The trial was without a jury and the court found there was no gun involved. The court also reasoned that, there being no gun involved, no robbery took place and found defendant not guilty of robbery. ...
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Opinion An ordinance of the City of San Jose (San Jose), a charter city, provides among other things that: “Every person engaged in the City of San Jose, whether or not at a fixed place of business in such City [with an average number of employees in such business of five or less], in the business of: ... (c) Any profession or semi-profession; or (d) Any other business or businesses; [with certai...
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Opinion Appellant Christopher T. (real party in interest, hereinafter Christopher) is a minor resident of the City and County of San Francisco, and attends school in respondent school district (hereinafter district). In May 1980, an individualized education program was prepared for Christopher by the district to accommodate his emotional handicap; it supplemented Christopher’s regula...
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*475Opinion This is an appeal from a judgment entered on a special verdict in a will contest and an action to set aside a deed which were consolidated for trial. Dorothy Mae Baker died February 15, 1978, at the age of 81, leaving an estate valued at $73,131. Her will (executed Jan. 6, 1977) included bequests of $4,500 to her brother Clarence Baker Coleman, $4,500 to Coleman’s wife, $100 to each o...
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Opinion The primary issue here presented is whether a person committed to a mental institution after being found not guilty of a felony by reason of insanity may be recommitted without a finding of amenability to treatment. Procedural History On March 5, 1975, appellant, James Alan Bennett, after a court trial, was found to have committed an assault with a deadly weapon and to b...
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Opinion A jury found defendant guilty of rape (Ms. W.) on count I, and not guilty of rape (Ms. H.) on count II. He appeals from the judgment. About 9 a.m. on September 19 Ms. W., a student, was approached by defendant on a college campus representing himself to be with “The Scholarship Foundation”; he told her she “looked spiritual” and, after some discussion, she agreed to have some juice wi...
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*513 Opinion Appellants, Pullman, Inc. and Pullman Trailmobile Division, appeal from an order for issuance of an ex parte prejudgment writ of possession and an order denying their application to recall the order for issuance of the writ of possession. This case arises out of the unusual circumstance of a debtor trying to repossess collateral from his creditor by means of an ex parte writ of...
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Opinion We review a decision of the Workers’ Compensation Appeals Board (Board) which, after granting reconsideration at petitioners’ request, affirmed the findings, award and order previously made in favor of respondent Wroten. The workers’ compensation judge found that a California industrial injury Wroten suffered in October 1976 while employed by petitioner Savage Plumbing Company res...
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Opinion The question in this case is whether Felix Figueroa, as an employee of the Housing Authority of the County of Santa Cruz (Housing Authority), had a property right in his job such that he could be terminated only by due process of law. The trial court found he did and issued a writ of mandate ordering reinstatement with back pay. The Housing Authority has appealed from that order. ...
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Opinion George E. Valentine II (hereinafter Valentine), appeals from an order of the San Francisco Superior Court granting the petition of Carpenters 46 Northern California Counties Conference Board (hereinafter Board) to confirm an arbitration award. Upon review of Valentine’s various contentions we find no error, and affirm. Factual and Procedural Background Valentine is a...
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Opinion Appellant R. Spencer Steele, Zoning Administrator for the City and County of San Francisco, appeals from the granting of a peremptory writ of mandate ordering that he grant respondent Dorothy B. Franklin a variance and facilitate the issuance of a building permit consistent with that variance in accordance with the decision of the San Francisco Board of Permit Appeals. Application had bee...
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Opinion Raymond Lopez (Raymond) appeals the judgment entered after a jury convicted him of six counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)). 1 I About noon on November 27, 1980, people began congregating at Guadalupe Park in Brawley for a picnic and for the traditional Thanksgiving Day football game. Raymond drove by the park in his green Chevrolet Caprice; his bro...
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Opinion Anthony Lee Logan’s appeal requires our review of the trial court’s evidentiary ruling, involving the genus Beagle 1 specie Moultrie 2 Betts, 3 Barrick 4 and Thompson. 5 We conclude the most *577 productive approach is to avoid adding another chapter to the tome already written on this subject, preferring to await resolution of this issue by the Sup...
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Opinion Defendant was charged in a four-count information with: (1) possession of a firearm by an ex-felon (Pen. Code, § 12021); (2) possession of proscribed weapons — a sawed-off shotgun (Pen. Code, § 12020, subd. (a)); (3) receiving stolen property (Pen. Code, § 496); and (4) possession for sale of a dangerous drug (Health & Saf. Code, § 11378). Additionally, it was alleged defendant ha...
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Opinion This is an appeal from a judgment on a complaint and cross-complaint for breach of contract. The matter is here on transfer from the appellate department of the superior court. (Cal. Rules of Court, rule 62(a).) The contract in question involved the construction of an outdoor rock spa. According to the settled statement on appeal, respondent called a single witness whose test...
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Opinion In this case we consider the relationship between a proceeding for relief from filing a claim under the tort claims act and the doctrine of collateral estoppel. The superior court entered a judgment of dismissal of plaintiffs’ wrongful death action after it had granted defendants’ motion for summary judgment and had denied plaintiffs’ motion for a new trial. The basis of the summary jud...
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Opinion Defendant was convicted of a violation of section 278.5 of the Penal Code. He has appealed; we reverse. On or about May 11, 1976, defendant and Susan were married and living in New York. Susan procured a divorce from defendant, in a New York court, under the terms of which, defendant had visitation rights to the three minor children of the parties. Susan, with the children, moved to C...
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Opinion In a nonjury trial appellant was found guilty on three counts of grand theft. The court also found true that as to count III the loss exceeded $100,000, and as to count II the loss exceeded $25,000. (Pen. Code, § 12022.6.) The court sentenced appellant on count III to a midterm of two years in the state prison, plus two years under section 12022.6, subdivision (b), for a total of four y...
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Opinion Villa Roma, Inc., is a corporation formed to provide moderate and low-cost housing pursuant to section 221(d)(3) of title II of the National Housing Act (12 U.S.C. § 1701 et seq.). Its bylaws provide that when a person is terminated from membership in the corporation, the membership may be sold only to persons meeting certain eligibility requirements, and for a price which does not exce...
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Opinion Robbie Broussard appeals from the judgment denying her petition for a writ of mandamus to direct respondents to reinstate her, with back pay, to her position in . the Personnel Department of the University of California, San Francisco (University). She contends that the University’s procedures, regulating the dismissal of nonprobationary employees violate both federal and state constitu...
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Opinion Timothy Turner petitions this court for a writ of prohibition to restrain respondent municipal court from proceeding with a trial assertedly set in violation of his speedy trial right. On February 6, 1981, petitioner pleaded not guilty to a charge of petty theft. (Pen. Code, § 484.) Petitioner waived time; the case was set for trial on July 27, 1981. No court was available on that date and...
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Opinion Plaintiffs Joseph and Charline Wilson filed a second amended complaint against defendants Household Finance Corporation and West Coast Life Insurance Company for breach of an insurer’s duty of good faith fair dealing with the insured and breach of fiduciary duty. The demurrer of respondent Household Finance Corporation (HFC) was sustained without leave to amend. Plaintiffs purport to ...
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Opinion This is an appeal from a judgment denying a peremptory writ of mandate. By judgment the court determined that “there was adequate notice, substantial evidence and requisite findings to support the administrative agency actions below.” In so doing, the court upheld the city council’s approval of tentative tract No. 37481 for construction of 115 condominium units and 6 maids’ quarte...
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*679 Opinion The pivotal question presented is whether Penal Code section 871.5 gives the superior court jurisdiction to review an order of a magistrate dismissing a felony complaint following the granting of a Penal Code section 1538.5 motion to suppress evidence. We hold that it does. The procedural chronology giving rise to this issue is as follows: On January 6, 198...
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Opinion Appellant was arrested for violation of Penal Code section 12020, subdivision (a), possession of nunchakus. The arrest and subsequent probation revocation hearing in which evidence was presented resulted in a modification of probation and a jail sentence. The underlying charge of Penal Code section 12020, subdivision (a), was dismissed. Nixon appeals from the order modifying the terms a...
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Opinion This appeal raises novel questions about (1) a defendant’s right to be relieved from a default taken as a result of the unexcused neglect of the defendant’s insurance carrier and (2) the authority of a trial court to entertain a new trial motion after a default judgment. Plaintiff and defendant were involved in an automobile collision on May 7, 1979. Plaintiff filed her complaint on O...
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Opinion Appellant Candido Sanchez was lawfully arrested for driving under the influence of alcohol. He refused to submit to a chemical test under the implied consent law and his license was suspended. He filed a petition for a writ of mandate in the superior court challenging the suspension of his driving privilege. His petition was denied and this appeal followed. The California Supreme Court ...
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Opinion On March 20, 1980, an information was filed in the Fresno County Superior Court charging appellant, Sammy Sanchez, with two counts of forcible rape, a violation of Penal Code section 261, subdivisions (2) and (3) (counts I and II), and with one count of oral copulation, a violation of Penal Code section 288a, subdivision (c) (count III). It was further alleged that in the commission of ...
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Opinion Oris Payton appeals from a judgment of dismissal rendered after a demurrer to his amended complaint was sustained without leave to amend. We reverse. Facts 1 Appellant sought damages against respondents, City of Santa Clara, arising out of the city’s alleged misconduct in posting in a public employee workroom notice of his termination and the reasons therefor. In particular, the a...
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Opinion The People appeal pursuant to Penal Code section 1238, subdivision (a)(1) 1 from an order dismissing the informa *196 tion following the granting of defendant’s motion pursuant to section 995. The ground upon which defendant’s motion was made was “that the Defendant has not been legally committed by a magistrate, that the Defendant has been committed withou...
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Opinion Plaintiff and cross-defendant Stockton Metropolitan Transit District (SMTD) appeals from a judgment of the Superior Court of San Joaquin County compelling it to arbitrate a controversy arising between it and defendant and cross-complainant Local 276 of the Amalgamated Transit Union (Union), over proposed changes in the SMTD retirement plan. The judgment also denied SMTD’s motion f...
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Opinion Defendant was convicted by a jury of robbery (Pen. Code, § 211) and forced oral copulation. (Pen. Code, § 288a, subd. (c).) The jury found that defendant was armed with a firearm (pistol) and used it in both offenses and, as to the crime of oral copulation, the jury found that defendant was also armed with a deadly weapon (a knife). Defendant appeals from the judgment sentencing him to ...
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Opinion On February 19, 1981, appellant pled guilty before Judge Francis W. Halley to conspiracy to sell cocaine (count I, Pen. Code, § 182), sale of cocaine (counts II through IV, Health & Saf. Code, § 11352), transportation of cocaine (count V, Health & Saf. Code, § 11352) and possession for sale of marijuana (count VI, Health & Saf. Code, § 11359). Appellant’s codefendant in counts I t...
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Opinion Petitioner, via a petition for writ of habeas corpus, seeks credit against his prison sentence for time spent as a California Rehabilitation Center (CRC) outpatient. Although the issue is cognizable on an appeal from the judgment which sentenced him to state prison, we issued an order to show cause because if petitioner’s contentions were *262 correct, he would be eligible for immedia...
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Opinion Appellant stands convicted, after a jury trial, of two counts of selling heroin in violation of Health and Safety Code section 11352. On count two, appellant was also found to have sold more than one-half ounce of a substance containing heroin in violation of Penal Code section 1203.07, subdivision (a)(2); this section precludes the court from considering probation. Appellant was ...
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*290Opinion This case presents important questions of continuing significance relating to the manner in which jurors are selected, and the nature of the showing which must be made by a defendant who claims that procedures utilized in the second phase of jury selection after compilation of the master list and prior to challenge, systematically result in the underrepresentation of a particular grou...
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Opinion The pivotal question presented by this appeal is whether a hospital is liable to a patient under the doctrine of corporate negligence for negligent conduct of independent physicians and surgeons who, as members of the hospital staff, avail themselves of the hospital facilities, but who are neither employees nor agents of the hospital. We answer this question in the affirmative and...
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Opinion Nancy Priddis appeals from that portion of an interlocutory judgment of dissolution characterizing property as separate or community and dividing community property; Reid Priddis has cross-appealed. The trial court valued the couple’s assets and liabilities as of the date of their separation, which occurred over 11 years prior to the dissolution proceedings. The principal question is wheth...
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*364 Opinion Defendant was charged by the District Attorney of Los Angeles County with the murder of Rosanda Skarlovik, on August 14, 1980, (violation of § 187, Pen. Code), and with assault by means of force likely to produce great bodily injury with deadly weapon, and with intent to commit murder, upon Marina Conrad, on the same date. (Violation of § 217, Pen. Code.) Defendant entered a pl...
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Opinion Plaintiff Marjorie Anne Johnson Springmeyer appeals from a judgment of dismissal of her quiet title action involving property deeded to the City of South Lake Tahoe (city). She contends she is the owner in fee simple of a one-third interest in the property by virtue of an automatic reversion provision in the deed. We read the deed to avoid a reversion. We affirm the judgment. ...
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Opinion An information charging defendant with cultivation of marijuana (Health & Saf. Code, § 11358) was dismissed following an order of the trial court suppressing evidence of 515 growing marijuana plants (Pen. Code, § 1538.5, subd. (j)) and a finding that there was insufficient evidence to proceed with the prosecution (Pen. Code, § 1385). The People appeal. The issue concerns the exten...
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Opinion Emmette Dize, Mitchell appeals his conviction for murdering his four-year-old nephew (Pen. Code, § 187) 1 on multiple grounds: (1) Withdrawing life support systems from the allegedly “brain dead” victim without providing Mitchell a judicial hearing to first determine whether death had already occurred, denied due process of law and assistance of counsel; by “pulling the...
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132 Cal.App.3d 408 (1982) 182 Cal. Rptr. 919 JULIUS S. AUSTERO et al., Plaintiffs and Respondents, v. WASHINGTON NATIONAL INSURANCE COMPANY, Defendant and Appellant. Docket No. 23779. Court of Appeals of California, Fourth District, Division Two. May 28, 1982. *410 COUNSEL Rutan & Tucker, Garvin L. Shallenberger, Ira G. Rivin and Patricia L. Stearns for Defendant and Appellant. Herbert Hafif ...
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Opinion Introduction We treat herein a question of first impression under California law: May an absentee voter after marking his ballot, placing and sealing it in the identification envelope, filling out and signing the envelope, then lawfully hand the envelope to a third party for mailing to the elections official from whence it came? As we shall explain, we conclude the procedure describ...
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Opinion In this consolidated appeal, Dean K. Buckley appeals from orders of the Tulare County Superior Court vacating its issuance of letters to appellant, removing appellant as personal representative of the Estate of Susan Buckley and appointing respondent Doyle Bibb executor (5 Civ. No. 6557). Appellant also seeks reversal of the summary judgment granted to respondent Bobby Bibb by the...
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Opinion The State Personnel Board (Board) appeals from the judgment (order) issuing a peremptory writ of mandamus setting aside the dismissal of Karen McGann Martin (Martin) from the position of correctional officer. The court determined Board’s finding that Martin’s *462 abandonment of her post while fellow officers were conducting a dormitory search placed her fellow officers in danger was ...
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Opinion We must here interpret the provisions of Government Code 1 section 69894.1 in light of the holding of Olson v. Cory (1980) 27 Cal.3d 532 [178 Cal.Rptr. 568, 636 P.2d 532]. Plaintiffs and appellants are now or have been commissioners either of the Los Angeles Superior Court or of the various judicial districts in *480 the County of Los Angeles. Appellants held office between Ja...
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Opinion This is an appeal from a judgment entered pursuant to a jury verdict awarding to respondent Susan Harris $10,000 in general damages and $45,000 in punitive damages for Dixon Cadillac Company’s 1976 violation of the Automotive Repair Act. (Bus. & Prof. Code, § 9884.9, requiring a written estimate and an authorization prior to repairing an automobile), and its subsequent detention o...
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Opinion The sole question presented by this appeal is whether under all circumstances a bank/conservator may discharge its fiduciary obligation to the conservatee by depositing estate assets in excess of $264,000 in one of the bank’s own 5-1/4 percent passbook accounts for a period of 17 months during which a substitution of conservators is being arranged. We conclude there are many factual cir...
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Opinion Donald and Mary Dale (Dale), and R. Robert Watts (Watts), appeal 1 from an order dismissing their respective cross-complaints against Crocker-Citizens National Bank (Crocker) on grounds of the four-year statute of limitations (Code Civ. Proc., § 337). For the reasons set forth below, we have concluded that the order must be reversed. The pertinent underlying facts ...
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Opinion This petition challenges two aspects of a determinate sentence law (DSL) sentence, both of which are affected by the decision in People v. Harvey (1979) 25 Cal.3d 754 [159 Cal.Rptr. 696, 602 P.2d 396]. The Attorney General concedes that under the authority of Harvey, the two-thirds year enhancement for a firearm use allegation connected with a consecutive robbery term was improper...
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Opinion The People appeal from an order of the Solano County Superior Court granting a writ of habeas corpus directing the Board of *544 Prison Terms to recompute Michael D. Carmichael’s term of imprisonment for violating Penal Code section 4500. 1 We reverse. Facts In 1971, Michael D. Carmichael was convicted in the San Bernardino County Superior Court of escape from lawful custody (...
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Opinion Appellant Geraldine Pace appeals from a judgment providing that federal civil service disability retirement benefits paid monthly to her former husband, respondent John Pace, are his separate property. I Geraldine and John were married in 1947 and separated in 1974. Throughout their marriage, John was employed by the federal Veterans’ Administration. In October 1975, the parties ent...
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Opinion The People appeal from the order of the Superior Court of Alameda County dismissing the action against defendant and respondent Pedro Padilla entered after the trial court granted defendant’s motion to suppress evidence made pursuant to Penal Code section 1538.5. The People contend on appeal that as a matter of law the trial court erred in granting defendant’s motion to suppress. At a...
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Opinion This appeal presents two sentencing questions: appellant claims that imposition of a concurrent term for an assault violates Penal Code section 654’s prohibition against double punishment because the assault was merely incidental to a robbery, and that a three-year enhancement for a prior prison term served for a robbery conviction with great bodily injury under Penal Code section 667.5...
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Opinion Statement of the Case Appellant stands convicted following a court trial of possession of hashish for sale in violation of Health and Safety Code section 11359. Appellant was sentenced to three years felony probation upon the condition he serve four months in the county jail. As we shall explain, we reverse the judgment because of the failure of the affidavit supporting the search w...
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Opinion Following denial of his motion to suppress (Welf. & Inst. Code, § 700.1), the minor, Alan R. (appellant), admitted the allegation in the petition charging possession of marijuana (Health & Saf. Code, § 11357, subd. (c)). The sole issue is whether the juvenile court properly denied his motion to suppress. We conclude it did and affirm the judgment. In early 1980 appellant was ...
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Opinion Defendants were charged in two counts with (1) possession for sale and (2) transportation of marijuana (Health & Saf. Code, §§ 11359, 11360, subd. (a)). The superior court determined that evidence essential to support the magistrate’s holding order was the product of an illegal search and seizure and granted defendants’ motion *609 to dismiss the information (Pen. Cod...
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*614 Opinion The issue presented in this writ proceeding is whether a postdissolution contempt citation may validly be served upon counsel for an absent party without a factual showing of concealment and of reasonable efforts to give notice to the missing party. We hold that it may not and issue the writ. Petitioner, a citee in a contempt of court proceeding, seeks through h...
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*Supp. 3Opinion Victor George Zonver was convicted of violating Penal Code section 12031, subdivision (a).1 On this appeal from the judgment, we must decide whether a request must first be made of the owner of a firearm carried in a vehicle in a prohibited public place before a peace officer may enter the vehicle to examine the firearm pursuant to subdivision (e) of section 12031. We follow People...
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Opinion Paulina B. Enright was charged with seven burglaries (Pen. Code, 1 § 459) and one count of receiving stolen property (§ 496, subd. 1). In the municipal court, she pleaded guilty to two burglaries and the receiving stolen property charge in the felony complaint. The trial court sentenced her to prison for the upper term of three years on one burglary and to consecutive e...
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Opinion Achilles P. Anton (plaintiff) appeals from a judgment denying his petition for a peremptory writ of mandate to compel San *643 Antonio Community Hospital (Hospital) to reinstate him to membership on Hospital’s medical staff. This case has been before us before and has been the subject of a decision of the California Supreme Court, Anton v. San An...
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Opinion The People of the State of California, represented by the District Attorney of Los Angeles County, seek a writ of mandate to compel the superior court of that county to vacate an order dismissing their petition filed pursuant to Welfare and Institutions Code section 6316.2, to extend the commitment of one Robert Martin (RPI) as a mentally disordered sex offender (MDSO). We grant t...
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Opinion On April 20, 1981, Gerald Edwin Druschel was sentenced to state prison for a total aggregate unstayed term of three years four months following revocation of probation previously granted in Los Angeles Superior Court cases Nos. A586723 and A586797. 1 On July 8, 1981, appellant, represented by counsel, obtained an order for nine months fifteen days of presentence credit. The court, how...
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Opinion Allstate Insurance Company, the petitioner in this original proceeding, is a defendant in an action which was commenced in respondent court under its number P 37639. Real party in interest *672 Wesley Wickham is the plaintiff in the action. Petitioner (hereinafter defendant) seeks an appropriate writ or writs (mandate and/or .., prohibition) requiring respondent court to vacate an ord...
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Opinion Respondent and appellant Georgia-Pacific Corporation (Georgia-Pacific) operates a lumber processing facility on real property owned by it and located on the coastline at Fort Bragg in Mendocino County. The property is within the coastal zone established by the California Coastal Act of 1976 (hereinafter Coastal Act). (Pub. Resources Code, div. 20, commencing with § 30000.) 1...
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*707 Opinion This case involves denial of sick leave pay to certain teachers who were absent December 3 and 4, 1977, the date of an alleged work stoppage or “sick-out” in the Compton Community College District (hereafter District). Appellant Compton College Federation of Teachers, Local 3486 AFT, AFL-CIO (hereinafter Federation) moved the superior court for a peremptory writ of mandate orderi...
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Opinion Rodney Benjamin Bishop was convicted by a jury of forcible rape (Pen. Code, § 261, subds. (2) and (3)), and out of the presence of the jury he admitted three prior felony convictions. 1 On *720 appeal he contends: (1) it was error to permit use of his prior felony burglary conviction for impeachment purposes; (2) it was error to deny his requested instruction on voluntary intoxicati...
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Opinion The Newport-Mesa Unified School District appeals from a judgment denying declaratory relief. The case involves the extent of the district’s responsibility to pay for the private education of Dr. and Mrs. Hubert’s son, Bernt, under the federal Education for All Handicapped Children Act of 1975 (20 U.S.C. § 1401 et seq.). We reverse. Statutory Scheme The Education for All ...
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Opinion Dwight Bradley appeals his conviction for feloniously possessing marijuana (Health & Saf. Code, § 11357, subd. (a)), claiming the contraband was illegally seized from his apartment and the trial court erred in denying his motion to suppress (Pen. Code, § 1538.5). 1 *741 Although we uphold the trial court’s finding of exigency justifying the initial warrantles...
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132 Cal.App.3d 749 (1982) 183 Cal. Rptr. 571 THE PEOPLE, Plaintiff and Respondent, v. SAMUEL WYATT et al., Defendants; FRANK RASCHE, Real Party in Interest and Appellant. Docket No. 64193. Court of Appeals of California, Second District, Division Two. June 14, 1982. *750 COUNSEL William T. Murphy and Chris A. Schaefer for Real Party in Interest and Appellant. John K. Van de Kamp, District Attorne...
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Opinion The county appeals from a judgment denying its petition for a writ of mandate to compel reimbursement to it for funds expended under section 1026.5 of the Penal Code. We reverse the judgment with directions. This case is an aftermath of the decision of the Supreme Court in In re Moye (1978) 22 Cal.3d 457 [149 Cal.Rptr. 491, 584 P.2d 1097]. Prior to that decision, a person committed ...
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Opinion Fred L. Thomas’ petition for habeas corpus asserts that the superior court incorrectly computed the number of days to be credited against his sentence for time he was in custody prior to being sentenced. Thomas was arrested June 27, 1978. He has been in custody since that date. On March 13, 1979, 259 days later, he was sentenced to 8 years and 4 months in state prison. Fifteen days la...
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*788Opinion Aaron Dominguez Enriquez (Enriquez) entered a plea of nolo contendere to a charge of murder (Pen. Code, § 187) and admitted the use of a deadly weapon in the commission of the offense. On appeal he contends that the trial court erred in denying his motions to suppress evidence and his motion for change of venue. We have determined that these contentions are without merit and therefore ...
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Opinion Petitioner, Hartford Accident and Indemnity Company (Hartford), the workers’ compensation insurer of Walsh & Associates, seeks review of an opinion and decision of the Workers’ Compensation Appeals Board (the Board), after reconsideration, awarding the dependent widow and seven children of Starling Timothy Haynes (the decedent) death benefits on account of his death resulting from...
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Opinion On June 18, 1980, pursuant to a search warrant, defendant’s residence was searched, netting 25 marijuana plants, pills, marijuana seeds and paraphernalia. Although we do not have the record of the proceedings before the magistrate, from the transcripts of the hearings before the superior court it appears that the case was referred to the probation office for a recommendation ...
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Opinion On March 24, 1981, a petition was filed under Welfare and Institutions Code section 602 alleging that appellant Robert V., a/k/a Daniel L., had unlawfully taken an automobile (Veh. Code, § 10851), a felony, and had carried a loaded firearm in that vehicle (Pen. Code, § 12031, subd. (a)), a misdemeanor. Robert was detained and on March 31, 1981, the parties stipulated that the contested jur...
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Opinion Defendant, Gail Manning, was charged by a first amended complaint, filed in the municipal court, which alleged a violation of section 316 of the Penal Code in that she “did willfully and unlawfully keep a house used for the purpose of assignation or prostitution, and did let rooms, apartments, or tenements, knowing that it [íz'c] was to be used for the purpose of assignation or prostitu...
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Opinion This appeal involves seven applications for payment from the Real Estate Education, Research and Recovery Fund (hereinafter Fund). The trial court granted recovery to two applicants but reduced their recovery by the amount of their tax writeoff. Five of the applicants were denied recovery on the ground that the realtor’s fraud had not involved licensed activity. All the applicants appea...
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Opinion Defendants Richard Landof and Pan American Tire Corporation (Pan American Corp.) appeal from a judgment entered against them in excess of $670,000 after the grant of plaintiff Bank of California’s motion for summary judgment. The principal question is whether Landof s prior conviction of conspiracy conclusively established defendants’ liability in this civil action. I Th...
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Opinion Petitioners are a coalition of organizations, health care providers, and taxpayers who represent the interests of indigent women throughout the state. Petitioners filed an original petition for writ of mandate with the California Supreme Court, seeking to compel respondents State Controller Kenneth Cory, State Treasurer Jesse M. Unruh, and Director of the State’s Department of Hea...
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Opinion Petitioner, San Jose Federation of Adult Education Teachers, Local 957, CFT/AFT, AFL-CIO, petitioned this court to set aside a trial court’s order vacating an arbitration award. The real party in interest is the San Jose Unified School District (hereafter District). Petitioner is the collective bargaining representative of certain certificated teaching employees of the Distri...
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Opinion Joseph A. Galligan, City Attorney of the City of San Bruno, appeals from a judgment on the pleadings denying declaratory *872 relief and a writ of mandate. Appellant sought to have the court determine the invalidity of a city ordinance purporting to remove the office of city attorney from the city’s civil service system. Appellant alleged that the ordinance was invalid in that the pos...
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Opinion Defendant appeals from a judgment entered on his plea of nolo contendere (receiving stolen property) subsequent to denial of his motion to suppress evidence. The sole appellate issue is whether the affidavit in support of the search warrant sets up sufficient facts to establish good cause for nighttime service. The following facts were recited in the affidavit of Deputy O’Reilly. On Januar...
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Opinion William Ricard appeals from a judgment dismissing his second amended complaint against Pacific Indemnity Company, the workers’ compensation insurance carrier for his former employer, and two of its employees. The complaint contained two counts: the first, against Pacific alone, alleged that the insurer had intentionally breached its duty to deal with appellant fairly and in good faith; ...
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Opinion In this medical malpractice action, plaintiff appeals from judgment of nonsuit entered after the completion of his opening statement at the jury trial (Code Civ. Proc., § 581c). The opening statement set forth the following facts which plaintiff intended to prove: On August 31, 1974, defendant, a chiropractor, gave plaintiff manipulative treatment for a problem in the upper back. In t...
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Opinion Introduction Plaintiff Hamid Talei appeals from an order of dismissal entered after the trial court sustained without leave to amend defendant’s demurrer to plaintiff’s first amended complaint. Statement of Facts 1 The first amended complaint contains the following pertinent allegations: On June 13, 1979, plaintiff’s agent Yahya Talei delivered three Pe...
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Opinion Plaintiff sued Sears, Roebuck & Company, defendant and respondent, for damages for property damage and personal injury sustained as a result of a fire allegedly caused by a defective television set. The complaint was filed on December 6, 1976. On March 12, 1979, a complaint in intervention was filed by appellant, Associated Indemnity Corporation, wherein it was alleged that appell...
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Opinion In People v. Shirley (1982) 31 Cal.3d 18 [181 Cal.Rptr. 243, 641 P.2d 775], the Supreme Court held that the testimony of a witness who has undergone hypnosis for the purpose of restoring his memory of the events in issue is inadmissible as to all matters relating to those events from the time of the hypnosis session forward. In the initial opinion that rule was held applicable to all cases...
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Opinion Engracia Campos and others appeal from a judgment denying administrative mandamus and other relief connected with claims by appellants for unemployment benefits. Benefits were terminated by the Employment Development Department on the ground that appellants, former employees of real parties Brendlin-Rice Company and others, had left their work because of a trade dispute. More than...
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Opinion The People appeal from a judgment dismissing a juvenile petition based on a pretrial order suppressing any in-court identification of the minor by the witness Callary, her in-the-field identification of the minor following his arrest, statements of the minor and physical evidence obtained after his detention and arrest for burglary. Only the issue of identification is material here. The fo...
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*999 Opinion We review a decision of the Workers’ Compensation Appeals Board (hereafter Board) which denied petitioners’ request for reconsideration and adopted the report of the workers’ compensation judge (hereafter judge). The judge had dismissed petitioners’ appeal from a decision of the Rehabilitation Bureau ordering petitioners to pay respondent Penny A. Jones (hereafter real party) t...
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Opinion The application of Blue Mountain Development Company (Blue Mountain), a judgment creditor, for a writ of execution on a dwelling (Code Civ. Proc., § 690.31, subd. (c)) was denied by the court below. Blue Mountain filed a motion for reconsideration (Code Civ. Proc., § 1008), and this motion was also denied. Blue Mountain has attempted to appeal from both rulings but we conclude, for the ...
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*1017 Opinion Plaintiff appeals from a judgment of dismissal pursuant to Code of Civil Procedure section 583, subdivision (b), 1 for failure to bring the action to trial within five years after filing the action. We reverse. On October 27, 1975, plaintiff filed her action for personal injuries resulting from a vehicular collision. On November 8, 1979, the case was ordered into judicial ar...
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Opinion The trial court awarded damages, injunctive and declaratory relief to plaintiff and cross-complainants against the Frisones, defendants and cross-defendants, the appellants herein. It did so on the theory that the Frisones, through appellant Larry Frisone, loaned cross-complainants (the Farrs) $50,000 at usurious rates. Three months after judgment was entered below, the California...
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Opinion Appellant was convicted after jury trial of second degree murder (Pen. Code, § 189) and felony child abuse (Pen. Code, *1032§ 273a, subd. (1)). She was thereafter sentenced to state prison for 15 years to life on the murder conviction and concurrently for the middle term of two years on the child abuse conviction. The convictions were based on the following pertinent facts. On December 10...
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133 Cal.App.3d 12 (1982) 183 Cal. Rptr. 609 STEVEN J. GOLDFISHER, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; SHAPIRO, LAUFER, POSELL & CLOSE et al., Real Parties in Interest. Docket No. 63871. Court of Appeals of California, Second District, Division Two. June 23, 1982. *14 COUNSEL Steven J. Goldfisher, in pro. per., for Petitioner. No appearance for Respondent. Mitc...
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133 Cal.App.3d 24 (1982) 183 Cal. Rptr. 615 GARY WITHERSPOON, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. 64290. Court of Appeals of California, Second District, Division Two. June 23, 1982. *25 COUNSEL Edwin S. Saul and William S. Schneider for Petitioner. No appearance for Respondent. John K. Van de Kamp, District Attorney,...
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133 Cal.App.3d 38 (1982) 183 Cal. Rptr. 709 THE PEOPLE, Plaintiff and Respondent, v. MANUEL CURTIS GILCHRIST, Defendant and Appellant. Docket No. 11642. Court of Appeals of California, Third District. June 23, 1982. *41 COUNSEL Latimer & Kenkel and Jerry J. Kenkel for Defendant and Appellant. George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Arnold ...
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Opinion Robert J.and Lorraine L. Hummell, plaintiffs, appeal a condition attached to a preliminary injunction obtained by them to stop foreclosure on a trust deed. The Hummells bought real property expecting to assume a first trust deed with interest at an annual percentage rate of 9.50. The trust deed contains a due-on-sale clause and is held by Republic Federal Savings *51and Loan Association* ...
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133 Cal.App.3d 60 (1982) 183 Cal. Rptr. 626 In re PHILLIP KENNEDY HAMM on Habeas Corpus. Docket No. 37922. Court of Appeals of California, Second District, Division Three. June 24, 1982. *61 COUNSEL John A. Vander Lans, City Prosecutor, Robert R. Recknagel, Assistant City Prosecutor, and Gerry L. Ensley, Deputy City Prosecutor, for Appellant. Paul Arthur Turner, under appointment by the Court of ...
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*71 Opinion This is an appeal from an order granting new trial. Following a jury trial, a judgment in favor of defendant-appellant was entered on September 30, 1980, and notice of such entry mailed October 1st. On October 10, within the statutory period allowed, plaintiffs-respondents served a notice of intention to move for a new trial. The only ground specified in the notice was “insuffic...
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133 Cal.App.3d 75 (1982) 183 Cal. Rptr. 715 In re CHARLENE ADELL GALLEGO on Habeas Corpus. Docket No. 11857. Court of Appeals of California, Third District. June 24, 1982. *77 COUNSEL Joseph Murphy for Petitioner. L.B. Elam, County Counsel, and Thomas A. Darling, Deputy County Counsel, for Respondent. OPINION SPARKS, J. Charlene Adell Gallego, a person in the custody of the Sheriff of Sacramento ...
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*90 Opinion The sole issue presented is whether Code of Civil Procedure section 337.15 1 operates to bar the cross-complaint for indemnity filed by the owners (appellants Majors, Hourigan and Harbor Towers, collectively Harbor Towers) against the builder and architect (respondents Kaehler-Farrar Development, Inc., Reuben Kaehler and D. H. Gregory Coleman, collectively Kaehler). The compla...
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Opinion This case involves a dispute over the control of the five-member board of directors of the Spencer Older Corporation. The Spencer family and the Older family own 50 percent each of the corpo*98ration’s stock and each family claims that its representative holds the decisive fifth seat on the otherwise evenly divided board. The Spencers brought this action pursuant to section 709 of the Cor...
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133 Cal.App.3d 105 (1982) 183 Cal. Rptr. 741 COUNTY OF VENTURA, Plaintiff and Respondent, v. JOYCE TILLETT, Defendant and Appellant. Docket No. 63044. Court of Appeals of California, Second District, Division Four. June 28, 1982. *108 COUNSEL Barbara Jean Penny for Defendant and Appellant. George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, S. Clark Moore...
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133 Cal.App.3d 116 (1982) 183 Cal. Rptr. 748 BAMBOO BROTHERS, Plaintiff and Respondent, v. JOHN CARPENTER, as Sheriff, etc., et al., Defendants and Appellants. Docket No. 63380. Court of Appeals of California, Second District, Division Four. June 28, 1982. *120 COUNSEL Kenneth L. Nelson, County Counsel, Robert D. Curiel, Acting County Counsel, and John M. Cohan, Deputy County Counsel, for Defenda...
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*140 Opinion Plaintiff AdolfoCuevas Novoa (hereinafter plaintiff), for himself and as guardian ad litem of his two children, Maria Cuevas and Norine Cuevas (hereinafter the children), appeals from an order of dismissal following the sustaining of a demurrer, without leave to amend, to his complaint. The complaint sought damages from the County of Ventura and various of its agenci...
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*149 Opinion By jurytrial appellant was convicted of assault with a deadly weapon with use of a firearm (Pen. Code, §§ 245, 12022.5), and possession of a firearm by a convicted felon (Pen. Code, § 12021). He was sentenced to state prison. At about 12:30 p.m. on the afternoon of April 1, 1980, Lucinda Farrow, appellant’s wife, who had separated from him about a month before, ...
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Opinion In proceedingsunder section 602 of the Welfare and Institutions Code, the juvenile court found that appellant committed robbery and assault with a deadly weapon on Carl Glatthorn (Pen. Code, §§ 211, 245, subd. (a)) and that appellant drew a knife on Donald Cress in a threatening manner (Pen. Code, § 417, subd. (a)). Appellant was committed to the Youth Authority. At about 8:15 on the ...
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Opinion Statement of the Case Appellant was convicted by a jury of false imprisonment, battery with serious bodily injury and two counts of rape. *163 Prior to trial, appellant made a Penal Code section 995 motion to set aside the information as to the false imprisonment and battery counts on the ground that he had been deprived of the right to have the magistrate declare the crimes to be...
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Opinion This appeal arises out of an action for damages to real property and personal injuries resulting from soil subsidence. Appellants, plaintiffs below, are owners of single family residences located on Sarah Drive in Pinole. Respondents, defendants below, are: Earl W. Smith, Earl W. Smith Developers, Ltd., and Earl W. Smith Development Organization (hereafter collectively Smith), the...
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Opinion The trialcourt found defendant guilty of second degree burglary (§ 459, Pen. Code); he appeals from the judgment. About 11 p.m. defendant and codefendant Jackson and two other males stopped on Willowbrook near a loading dock at the rear of Boys Market; one of them cut the chain link fence while the other three watched the street; cutting and pulling away the fence and tin plate took a...
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Opinion Statement of the Case and Facts Michael Holmes, a minor, appeals through his guardian ad litem, Ollie Holmes, the order of dismissal of his third amended complaint against J. C. Penney Company which was entered after respondent’s (hereinafter Penney’s) demurrer was sustained without leave to amend. Appellant’s third amended complaint alleges that Penney’s sold C02 cartridges to defe...
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*224 Opinion This is an appeal by plaintiff and appellant Elinor Adelson from a ruling of the trial court dismissing her action against respondent Gillis pursuant to Code of Civil Procedure section 581a for failure to serve and return summons within three years. The action arose out of a suit for personal injuries brought by Adelson against the Hertz Corporation and Barbara Gillis. The comp...
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Opinion Aviation BrakeSystems, Ltd., appeals from an order of dismissal following the sustaining of a demurrer, without leave to amend, to the second amended complaint. 1 Defendant Voorhis was appointed as a receiver in a prior related action. The complaint alleges that Voorhis violated his duties as a receiver, and seeks damages from Voorhis personally and from the insurer who...
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Opinion Plaintiffs Jerry and Sylvia Shapiro, individually and on behalf of all others similarly situated, appeal from an order of dismissal entered following a nonsuit granted in favor of defendant United California Bank (hereinafter referred to as UCB) in this class action for damages based on alleged unlawful penalties charged by UCB for processing checks drawn on checking accounts with...
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Opinion Defendant William Alexander Torres appeals his conviction, pursuant to jury verdict in case No. 30568, of the sale of *269 marijuana and the sale and possession of concentrated cannabis (Health & Saf. Code, §§ 11357, subd. (a) and 11360, subd. (a)). Defendant Torres also appeals a second conviction, following a jury trial in case No. 32389, of selling marijuana (Healt...
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Opinion Joan L.Davis, as executrix of the estate of Priscilla Kolda, deceased, appeals from an order of the probate court. Decedent died April 23, 1978. Her holographic will disposed of her house as follows: “My property shall go to Joan Davis, a friend, as long as she wishes to live here. Should she decease or not live at the premise of 1077 Alta Pine Lane, Altadena, it will revert to my sister,...
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*291 Opinion Appellants JamesJohnson, Jr., also known as Rick James (hereinafter James), and Stone City, Inc. (hereinafter Stone City) appeal from an order denying their motion to compel plaintiff and respondent Stanley Joel Weisman (hereinafter Weisman) to arbitrate a contractual dispute and an action for attorneys fees and costs. Weisman is a solicitor, barrister, and Quee...
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133 Cal.App.3d 297 (1982) 184 Cal. Rptr. 740 In re the Marriage of GALE and PAUL HALPERN. GALE HALPERN, Respondent, v. PAUL HALPERN, Appellant. Docket No. 63195. Court of Appeals of California, Second District, Division Five. June 30, 1982. *301 COUNSEL James E. Sutherland for Appellant. Marc J. Poster and Harvey Strassman for Respondent. OPINION LAVINE, J.[*] The husband (hereinafter called Paul...
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*319 Opinion Appellant wascharged with possession of phencyclidine (PCP) for sale, a violation of Health and Safety Code section 1 1378.5. He pled not guilty but later changed his plea to guilty pursuant to an agreement that he would receive no immediate state prison sentence. The guilty plea was set aside when, after reading the probation report, the court felt that it was not able to abide ...
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133 Cal.App.3d 330 (1982) 183 Cal. Rptr. 784 THE PEOPLE, Plaintiff and Respondent, v. JOHN RAYMOND EAGLES, JR., Defendant and Appellant. Docket No. 10641. Court of Appeals of California, Third District. June 30, 1982. *333 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Roy M. Dahlberg, Deputy State Public Defender, for Defendant and Appellant. George Deu...
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133 Cal.App.3d 344 (1982) 184 Cal. Rptr. 25 THE PEOPLE, Plaintiff and Respondent, v. JAMES WASLEY, Defendant and Appellant. Docket No. 11292. Court of Appeals of California, Third District. June 30, 1982. *346 COUNSEL Eugene E. White, under appointment by the Court of Appeal, for Defendant and Appellant. George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General,...
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*359 Opinion This isan appeal from a judgment of conviction of four counts of robbery in violation of Penal Code section 211. As to three of these counts, appellant was also found to have used a deadly or dangerous weapon pursuatit to Penal Code section 12022, subdivision (b). Prior to trial, appellant admitted a prior felony conviction. Appellant was sentenced to state prison for the upper...
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Opinion Ethan A. Jennings, Jr. (hereafter Ethan), seeks relief by petition for writ of habeas corpus (Pen. Code, § 1474) from a judgment of the San Luis Obispo County Superior Court imposing a jail term for contempt of court for failure to pay spousal support and attorney’s fees. 1 Ethan was the. respondent in a San Luis Obispo County action for dissolution of marriage; real ...
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Opinion This isan appeal from a judgment denying a writ of mandate sought by petitioner Darrell J. Vienna to set aside a decision of the California Horse Racing Board, sustaining an accusation against Vienna under section 1887, title 4, of the California Administrative Code, 1 imposing a fine of $2,000, and disqualifying the horse Armorica from second place in a race. 2 ...
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Opinion This appealby the City of Del Mar (Del Mar) describes the negative, almost frightening, physical, social and financial costs imposed upon society by the further urbanization of the City of San Diego *404 (San Diego) in its creation of the new community called North City West. Del Mar’s emotionally compelling narrative challenges San Diego’s willingness to extend its m...
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133 Cal.App.3d 419 (1982) 184 Cal. Rptr. 72 THE PEOPLE, Plaintiff and Respondent, v. DALE DEAN THOMPSON, Defendant and Appellant. Docket No. 13024. Court of Appeals of California, Fourth District, Division One. July 1, 1982. *422 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Paul Bell, Deputy Public Defender, and William Pabarcus for Defendant and Appellant...
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Opinion Appellant appeals his conviction of five counts of grand theft (Pen. Code, § 487, subd. 1). His principal contention is that the trial court failed to ascertain of appellant whether a factual basis existed for the pleas (Pen. Code, § 1192.5). The facts are these: Appellant was charged with 23 felony counts ranging from grand theft and conspiracy to forgery. Appellant entered a not g...
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Opinion This petition for writ of mandate, filed in pro. per. by a criminal defendant, seeks to compel the trial court to issue a certificate of probable cause to permit him to appeal his conviction (Pen. Code, § 1237.5). We have concluded that the trial court erred in refusing to issue the certificate of probable cause. We issue writ of mandate. *439 On July 14, 1981, after...
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Opinion The Municipal Court of El Cajon Judicial District (Municipal Court) appeals a judgment granting a peremptory writ of *458 mandate commanding the municipal court to set aside its blanket policy of requiring misdemeanor defendants to personally appear at every readiness and sentencing hearing and, instead, allow them to appear through their attorneys unless the specific facts and circum...
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Opinion Following an arbitrator’s award in a judicial arbitration proceeding (Code Civ. Proc., § 1141.10 et seq.) 1 any party may elect to have a de novo jury or court trial provided the request is made within 20 days after the arbitrator files the award with the court. (§ 1141.20 and Cal. Rules of Court, rule 1616.) Neither the statute nor the rules *467 conditions the de novo trial on t...
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133 Cal.App.3d 472 (1982) 183 Cal. Rptr. 909 CITY OF CHULA VISTA, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; CALIFORNIA COASTAL COMMISSION, Real Party in Interest. Docket No. 26584. Court of Appeals of California, Fourth District, Division One. July 2, 1982. *475 COUNSEL Ronald A. Zumbrum, Harold J. Hughes, Thomas E. Hookano, Elleene A. Kirkland, Clifton E. Reed, Hillyer &...
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*500Opinion The City and County of San Francisco and others appeal from a judgment granting petitions for writ of mandate; petitioners were the San Francisco Police Officers Association and the San Francisco Fire Fighters Local 798. The principal question is whether the city’s board of supervisors must include a wage increase granted to Los Angeles police and fire personnel, effective July 1, 197...
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*517 Opinion Appellant was sentenced to state prison for violation of section 187, Penal Code, the murder, second degree, of Robert Edelman, with use of a firearm, and for violation of section 217, of the Penal Code, assault with intent to commit murder of appellant’s estranged wife, Elizabeth Kozel, with use of a firearm. He had pleaded not guilty and not guilty by reason of insanity. The ju...
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Opinion In this case we must determine whether homosexuals as tenants in rental housing are included in the provisions of the Unruh Civil Rights Act (Civil Code, §§51, 52). We hold they are. *Supp. 3The facts are not in dispute. They show the following: Appellant William Hubert is a quadriplegic and requires a 24-hour attendant. He leased an apartment from respondent and hired as his attendant ap...
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Opinion Statement of the Case Defendant was convicted by a jury of counts I and II, burglaries, first degree (Pen. Code, § 459), count III, attempted voluntary manslaughter (Pen. Code, §§ 664/193) as a lesser but included offense of assault with an intent to commit murder (Pen. Code, § 217), and count IV, simple assault (Pen. Code, § 240) as a lesser included offense of assault with intent to...
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Opinion Following a denial of their motion for a new trial, Pacific Southwest Airlines appeals a judgment in a wrongful death action in which the jury awarded $152,076 to Mr. and Mrs. Jerome Fox, the parents and heirs of Gary Fox who was killed in the September 25, 1978, commercial jet-small plane collision and crash in *568San Diego, California. PSA did not contest liability so the sole issue wa...
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Opinion Plaintiff Magda Emerick’s suit (filed June 11, 1974) seeks damages for injuries sustained when a wash basin on which she was sitting or leaning fell down. Emerick waived a jury and the trial court bifurcated the liability and the damage phases of the lawsuit. On trial of the liability issue, the court found no negligence on the part of defendant Raleigh Hills Hospital. Emerick app...
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133 Cal.App.3d 587 (1982) 184 Cal. Rptr. 98 MILES LABORATORIES, INC., Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; SUSAN FISHER, Real Party in Interest. Docket No. 27618. Court of Appeals of California, Fourth District, Division Two. July 6, 1982. *589 COUNSEL Kinkle, Rodiger & Spriggs, George P. Kinkle and Bradley S. Sures for Petitioner. No appearance for Respondent. Robinson...
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Opinion In this appeal we must decide whether a probate homestead in community property set aside to the surviving spouse should have been limited to a life estate. We conclude that by virtue of a recent statutory amendment, the homestead should have been so limited. We reverse with directions. *603 Facts Decedent and respondent were married January 21, 1961. In 1972, during their marriag...
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Opinion This isan appeal by Synanon Foundation from an order granting dismissal of its action for refund of property taxes paid to Tu *609 lare, Los Angeles, Alameda, and Marin Counties. The superior court granted dismissal of the complaint because the summons was not returned within one year after the commencement of the action as required by Revenue and Taxation Code sectio...
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*618Opinion The Regents of the University of California (Regents) maintain and administer a tax-deferred annuity plan for university employees. This appeal presents the question of whether the Regents are required to comply with requests by employees enrolled in said plan that the employees’ contributions be transferred to a commercial provider of tax-sheltered annuities instead of being maintaine...
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Opinion Defendant Robert Gainer, Jr., was convicted of second degree murder pursuant to a jury verdict returned on July 21, 1978. On August 11, 1978, the trial court sentenced him to state prison *638 for terms prescribed by law. He appealed from the judgment of conviction, and was released on bail pending determination of the appeal. The judgment was affirmed by this court in 1981. Defendant...
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Opinion The issue before us in this case is whether the deaths of two employees, Vargas Castellanos and Salvador Macias Vargas, who were shot in a bunkhouse arose out of and occurred in the course of their employment. The Workers’ Compensation Appeals Board (Board) denied reconsideration of the trial judge’s award of compensability. Petitioner, State Compensation Insurance Fund (petitione...
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Opinion Defendant, Lawrence Modia White, appeals from judgments in two cases sentencing him to consecutive terms in state prison and county jail after revocation of probation in each of the cases. He contends (1) that the trial court improperly considered defendant’s postprobationary activities in sentencing him after revocation of probation; and (2) that the trial court did not have jurisdicti...
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133 Cal.App.3d 709 (1982) 184 Cal. Rptr. 228 ANTOINETTE IRWIN, Individually and as Administratrix, etc., et al., Plaintiffs and Respondents, v. PACIFIC SOUTHWEST AIRLINES, Defendant and Appellant. Docket No. 24194. Court of Appeals of California, Fourth District, Division One. July 9, 1982. *712 COUNSEL Kern, Wooley & Maloney and Ralph S. LaMontagne, Jr., for Defendant and Appellant. Harney &...
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133 Cal.App.3d 721 (1982) 184 Cal. Rptr. 182 THE PEOPLE, Plaintiff and Respondent, v. LARRY THOMAS LIAKOS, Defendant and Appellant. Docket No 13474. Court of Appeals of California, Fourth District, Division One. June 10, 1982. *722 COUNSEL Roger Agajanian for Defendant and Appellant. George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Daniel J. Kremer, As...
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Opinion This petition seeks to set aside an extradition order by which petitioner is to be returned to New York for parole violation proceedings. The question presented is whether a fugitive from a sister state who has signed a waiver of extradition as a condition of parole can be extradited from California without formal extradition proceedings. We conclude that under the compulsion of the holdin...
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133 Cal.App.3d 737 (1982) COUNTY OF SAN MATEO, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and WENDY R. WARREN, Respondents. Docket No. 51613. Court of Appeals of California, First District, Division Three. July 13, 1982. *739 COUNSEL Keith Sorenson, District Attorney, and Thomas Daniel Daly, Deputy District Attorney, for Petitioner. Donald P. Gangemi, Fred D. Lonsdale and Davis, Cowell & ...
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Opinion These consolidated appeals arise out of an action for damages for the wrongful death of Helen Baker, the mother of Michael W. Baker who was five years old when his mother died on March 2, 1973. 1 On November 2, 1976, a complaint for wrongful death was filed in the Merced County Superior Court against the various respondents. After numerous demurrers and answers w...
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*773 Opinion This is an appeal from a judgment entered after court trial based upon stipulated facts, which we recapitulate as follows. Appellants are the owners of real property located in Alviso, California, which, beginning in 1971 or 1972, was leased by oral agreement to George Interiano. During the course of the lease, without appellants’ knowledge Interiano sublet the ...
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Opinion Summary We hold that issuance by the state Office of Planning and Research of an extension of time for completion of an adequate general plan (Gov. Code, § 65302.6 1 ) does not validate or immunize a city’s or county’s prior approval of land use permits from the requirement of conformity to a valid general plan. Statement of the Case On May 15, 19...
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Opinion Inhis case we are asked to review a decision of the Alcoholic Beverage Control Appeals Board (Board) which reversed a decision of the Department of Alcoholic Beverage Control (Department) denying a petition for an off-sale beer and wine license. *817 In February 1980, real party in interest John R. Diez, doing business as El Zorro (Applicant), filed an application fo...
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*830 Opinion The People contend that, on December 12, 1978, petitioner had committed a series of offenses. On January 9, 1979, the People filed in respondent court a four-count complaint (No. C-179,636), charging one felony of possession of cocaine, a misdemean- or of using and being under the influence of cocaine, another misdemeanor of driving under the influence of a drug, and an infractio...
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Opinion This appeal from a judgment for defendants following the granting of their motion for summary judgment is the latest chapter in an extended saga of litigation. To understand the nature of the current battle, we must proceed back to its genesis and recount the ignominious history of this war. The Facts Stanley Borowski, a real estate broker, and Steve Wong, a real estate ...
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133 Cal.App.3d 845 (1982) 184 Cal. Rptr. 262 PATRICK V. BANAS et al., Plaintiffs and Appellants, v. TRANSAMERICA TITLE INSURANCE COMPANY et al., Defendants and Respondents. Docket No. 25528. Court of Appeals of California, Fourth District, Division Two. July 14, 1982. *846 COUNSEL Tomlinson & Nydam and M.S. Tomlinson for Plaintiffs and Appellants. MacLachlan, Burford & Arias and Clifford ...
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Opinion Nature of Proceeding: Petition for writs of prohibition and mandate to superior court after the court overruled the demurrer of defendant Fremont Indemnity Company, an insurance carrier, to an action brought by injured worker. We issued an alternative writ. The present action involves a matter of pleading in the superior court. Although generally matters of pleading are best left to...
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Opinion Julio A.was found to be a minor violating laws defining crime (Welf. & Inst. Code, § 602) in that he took a vehicle without consent of its owner (Veh. Code, § 10851). He appeals from the order of wardship, contending: “Once in custody of the probation officer, a minor child should not be transferred to a police agency. Any statement as a result of such transfer should be suppressed.” On S...
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Opinion Plaintiffs appeal from an order dismissing their fourth amended complaint (complaint) after an order sustaining a demurrer without leave to amend. We affirm. The complaint, so far as this appeal is concerned, charges that, pursuant to a conspiracy to destroy plaintiffs’ business as collection agencies, the Director of the Department of Consumer Affairs (Richard Spohn), the former chie...
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Opinion This appealpresents the issue of whether one who is not described as an “heir” under Code of Civil Procedure section 377 1 but who was the fiancee of the decedent and who had cohabited with him may bring an action for his alleged wrongful death. Appellant Lucila Garcia appeals from the granting of summary judgment for respondents under section 437c. In her action she seeks to recove...
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133 Cal.App.3d 695 (1982) 184 Cal. Rptr. 154 FERNANDO ALVARADO et al., Plaintiffs and Appellants, v. CITY OF PORT HUENEME et al., Defendants and Respondents. Docket No. 62917. Court of Appeals of California, Second District, Division Three. July 9, 1982. *697 COUNSEL Irachmil B. Taus II and Nathan Misraje for Plaintiffs and Appellants. Archbald & Spray, William J. Stewart, Heather Scott Cissna, K...
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134 Cal.App.3d 274 (1982) 184 Cal. Rptr. 542 TERRY W. ANDREWS, Plaintiff and Appellant, v. BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY et al., Defendants and Respondents. Docket No. 49633. Court of Appeals of California, First District, Division One. July 26, 1982. *277 COUNSEL Terry W. Andrews, in pro. per., for Plaintiff and Appellant. John B. Clausen, County Counsel, and E.V. Lane, Deputy Coun...
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134 Cal.App.3d 285 (1982) 184 Cal. Rptr. 547 JOHN McELHANEY et al., Plaintiffs and Appellants, v. CESSNA AIRCRAFT COMPANY, Defendant and Respondent. Docket No. 62696. Court of Appeals of California, Second District, Division Five. July 26, 1982. *286 COUNSEL Bodkin, McCarthy, Sargent & Smith and Timothy J. Sargent for Plaintiffs and Appellants. Brill & Hunt, Morris, Polich & Purdy, Robert D. Bril...
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Opinion The primary question on appeal is whether the decedent Muriel Eddy (Mrs. Eddy) effectively exercised in her will a general discretionary power of appointment given her by the will of her predeceased husband Everett Eddy. The trial court concluded she had and that the appointive property was subject to disposition in her estate. We conclude she did not and that the property is not subject t...
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*341 Opinion This is an appeal from a judgment of dismissal entered after the court sustained without leave to amend the demurrer of the parent corporation defendant Tele-Communication, Inc. (TCI), and the directors of the subsidiary, Crystal Brite Television, Inc. (Crystal Brite) (the individual defendants). The fifth amended complaint filed by plaintiff John Smith, the minority...
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Opinion Plaintiff Huntmix, Inc., appeals from the judgment for defendant Bank of America National Trust & Savings Association after defendant’s demurrer to the complaint was sustained without leave to amend. According to the allegations of the complaint, plaintiff received a check in the amount of $22,415.27 drawn on a Black Paving Company, Inc. account with defendant. The check was ...
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Opinion Plaintiff Betsy Royster appeals from a summary judgment in favor of defendant Miguel Montanez in her action *365 for damages against him for personal injuries incurred when plaintiff stepped in a hole on premises occupied by defendant as his home. The summary judgment was granted on the sole ground that the exclusive remedy for plaintiff’s injuries, incurred in t...
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134 Cal.App.3d 374 (1982) 184 Cal. Rptr. 576 DENNIS C. DAKINS, Plaintiff and Appellant, v. BOARD OF PENSION COMMISSIONERS OF THE CITY OF LOS ANGELES, Defendant and Respondent. Docket No. 63274. Court of Appeals of California, Second District, Division Three. July 28, 1982. *377 COUNSEL Lewis, Marenstein & Kadar and Michael T. Roberts for Plaintiff and Appellant. Ira Reiner, City Attorney, Siegfri...
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Opinion Plaintiff appeals from a judgment of the superior court granting defendant’s motion for summary judgment. We reverse and remand the cause with directions. The present case is a dispute between two insurance carriers over their respective liability for settlement of a malpractice case. The insured was covered by three policies. One policy, issued by plaintiff, provided “primar...
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Opinion This appeal is taken from a denial by the superior court of a petition for writ of mandate to set aside the decision of the Ventura County Board of Supervisors to annex certain unincorporated areas to two cities in the County of Ventura. We have concluded that the procedure involved did not violate the applicable statutes and that the statutes do not violate the Constitution. ...
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Opinion Hector Pedro Ibarra was charged with murder (Pen. Code, § 187), 1 attempted murder (§§ 664, 187) and attempted robbery (§§ 664, 211), with personal firearm use as to each count (§ 12022.5), and a prior violent felony conviction in Texas within the meaning of section 667.5, subdivision (a). Ibarra admitted the prior violent felony before trial and a jury found him guilty of voluntary m...
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134 Cal.App.3d 428 (1982) 184 Cal. Rptr. 648 COUNTY OF SACRAMENTO, Plaintiff and Appellant, v. THE STATE OF CALIFORNIA et al., Defendants and Appellants; COUNTY OF LOS ANGELES, Intervener and Respondent. Docket No. 19994. Court of Appeals of California, Third District. July 29, 1982. *430 COUNSEL Lee B. Elam, County Counsel, Duane C. Miller and Miller & Rolfe for Plaintiff and Appellant. George D...
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Opinion At issue in this mandamus proceeding is whether the spouse of the plaintiff in a personal injury action may be deposed as a person for whose “immediate benefit” the action is brought by virtue of *438 her community property interest in any damages to be recovered. We will issue the writ. I Gerry L. Boles sued Harold E. Hand, Jr., M.D., an ophthalmologist, for malpractice. Hand s...
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Opinion Ruth and Lewis Fenton each appeal from portions of a judgment dividing their property and awarding spousal support and attorneys’ fees after dissolution of their 23-year marriage. Wife contends that the trial court erred in denying her motion to appoint an out-of-county judge, in failing to award her greater spousal support and attorneys’ fees, in failing to account for goodwill i...
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*475 Opinion Introduction Defendant, Dr. Billy Torres, appeals from a judgment entered in favor of plaintiffs, Delia S. and George S., after a jury trial. On plaintiffs’ complaint, the jury returned a verdict that Billy Torres committed a battery, in the form of a rape, against Delia S.; Billy Torres intentionally inflicted emotional distress on Delia S. and George S.; and G...
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134 Cal.App.3d 486 (1982) 184 Cal. Rptr. 465 UNITED MULTIPLE LISTING SERVICE, INC., Plaintiff, Cross-defendant and Respondent, v. EDWARD BERNSTEIN, Defendant, Cross-complainant and Appellant. Docket No. 63749. Court of Appeals of California, Second District, Division Two. July 9, 1982. *488 COUNSEL Murphy & Gold and Ronald Gold for Defendant, Cross-complainant and Appellant. Condon & Cond...
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Opinion This is an appeal by the City of Los Angeles (hereinafter City) and Chevron U.S.A., Inc. (hereinafter Chevron) from the judgment of the Los Angeles Superior Court granting a petition for writ of mandamus and compelling the City to vacate its decision to issue, based solely on a negative declaration (Cal. Admin. Code, tit. 14, § 15083), 1 a conditional use permit to Chev...
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Opinion In an information defendant was charged with 14 counts of robbery (Pen. Code, § 211). Each count alleged the use of a handgun within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1). Appellant denied the allegations and pleaded not guilty and not guilty by reason of insanity. A jury acquitted defendant of one robbery count, but found him guilty of th...
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Opinion On May 28, 1981, the Juvenile Court of San Joaquin County adjudged the minors Jamie M. and Emma M. to be dependent children of the court (Welf. & Inst. Code, § 300, subd. (a)) and ordered them removed from the custody of their mother, Barbara O.1 The mother appeals, contending: (1) insufficient evidence to support the order removing the children from parental custody; (2) the allegations ...
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Opinion This is an appeal by the estate and heirs of Dr. O. Dale Buckwalter (hereinafter the Buckwalters) from a judgment entered against the Buckwalter estate in favor of Airline Training Center 1 and the estates of Ulrich Euler and Holger Behrens arising out of a 1977 midair collision of two private planes near Needles, California. Buck-waiter, Euler and Behrens all died in the accident. Bo...
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134 Cal.App.3d 556 (1982) 184 Cal. Rptr. 11 FLOYD M. BRUMBAUGH et al., Plaintiffs, Cross-defendants and Appellants, v. COUNTY OF IMPERIAL, Defendant, Cross-complainant and Respondent. Docket No. 22895. Court of Appeals of California, Fourth District, Division One. May 27, 1982. *559 COUNSEL Horton, Knox, Carter & Foote and J. Penn Carter for Plaintiffs, Cross-defendants and Appellants. James ...
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Opinion Defendants William and Mary Banes, insureds under a motor vehicle insurance policy issued by plaintiff Foremost Insurance Company, appeal from a judgment entered against them in a declaratory relief action filed by Foremost. They challenge the trial court’s ruling that the policy in question could not possibly apply to indemnify the Banes for their liability arising out of an acci...
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134 Cal.App.3d 587 (1982) 184 Cal. Rptr. 652 THE PEOPLE, Plaintiff and Respondent, v. ROBERT GREEN, Defendant and Appellant. Docket No. 5387. Court of Appeals of California, Fifth District. July 30, 1982. *589 COUNSEL Jin Ishikawa, under appointment by the Court of Appeal, for Defendant and Appellant. George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Ar...
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Opinion This case requires that we construe, apparently for the first time, certain language contained in the Californiá Constitution, article XIII, section 28, subdivision (f), paragraph (3), 1 as well as virtually the same language contained in California Insurance Code section 685.1. 2 The constitutional and Insurance Code sections referred to are part of the so...
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Opinion This appeal presents but one issue: Can one spouse unilaterally terminate a joint tenancy in property that has been declared by both spouses to be their homestead? Waymond Grigsby (respondent) obtained a. judgment from the probate court which adjudged that certain real property, the subject of this appeal, was joint tenancy property of respondent and his deceased wife, Carolyn Joyce Grigsb...
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Opinion In a marriage dissolution action the wife, Doris, appeals from a “Judgment re Division of Pension Funds After Interlocutory Decree of Dissolution of Marriage.” Doris, and the husband, Karl, were employed by the Pacific Telephone and Telegraph Company. Each was a beneficiary of the company’s employees’ pension plan. Doris’ pension rights at the time of the trial had vested but not matu...
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134 Cal.App.3d 689 (1982) 184 Cal. Rptr. 694 HILLEL I. MAISEL, Plaintiff and Appellant, v. SAN FRANCISCO STATE UNIVERSITY, Defendant and Respondent. Docket No. 54397. Court of Appeals of California, First District, Division One. August 3, 1982. *691 COUNSEL Edwin Train Caldwell, Caldwell & Johnson, Victoria J. De Goff and De Goff & Sherman for Plaintiff and Appellant. George Deukmejian, Attorney ...
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Opinion Verlyn Bergman, respondent herein and plaintiff below, was injured while working at the Georgia-Pacific plant in Modesto when the handle came off of a boxcar door he was attempting to close during the course of his employment. The boxcar, No. 61400, was owned by St. Louis Southwestern Railway Company (SSW), appellant herein and defendant below, and delivered to the Georgia-Pacific...
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Opinion We granted the petition for writ of review in this case in order to examine the resolution by the Workers’ Compensation Appeals Board (board) of an unusual factual situation arising under Wilkinson v. Workers' Comp. Appeals Bd. (1977) 19 Cal.3d 491 [138 Cal.Rptr. 696, 564 P.2d 848]. We conclude that the evidentiary record is insufficient, both as support for the board’s decision and...
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134 Cal.App.3d 729 (1982) 182 Cal. Rptr. 300 Estate of HELEN NADINE JEFFERS, Deceased. KENNETH CORY, as State Controller, Petitioner and Respondent, v. JOHN JEFFERS, as Co-executor, etc., et al., Objectors and Appellants. Docket No. 52671. Court of Appeals of California, First District, Division Two. April 29, 1982. *731 COUNSEL Vernon L. Hopkinson, Jared G. Carter and Rawles, Hinkle, Carter & Br...
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Opinion In this case we examine the discharge of a debt by the federal bankruptcy court when the bankrupt spouse was required to *740 make payments on the discharged obligation as part of a property settlement agreement ordered by a state family law court. The precise question presented by this appeal is whether the court below erred in reducing the bankrupt spouse’s monthly support to reflec...
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134 Cal.App.3d 748 (1982) 184 Cal. Rptr. 701 STEVE STEPHENS et al., Plaintiffs and Appellants, v. WILLIS C. PERRY, as Director, etc., et al., Defendants and Respondents. Docket No. 61890. Court of Appeals of California, Second District, Division One. August 4, 1982. *750 COUNSEL W. Kenneth Rice, Twitchell & Rice, Adrian S. Andrade, Jeannie A. Barrett, Steven D. Belasco, Andrade & Belasco, Esther ...
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Opinion Charles P., a minor, appeals from an adjudication of the juvenile court ordering him to remain a ward of the court, pursuant to section 602 of the Welfare and Institutions Code, terminating a prior order of home on probation and ordering him to be suitably placed. The trial court’s order was based upon a finding that the appellant had unlawfully taken and driven an automobile without th...
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Opinion Defendant was found guilty of burglary as alleged in count I and of attempted burglary as alleged in count II. He was sentenced to state prison for the upper term of three years on count I, and for four months on count II to be served concurrently with the sentence on count I. Appellant seeks to have this court remand the case for re-sentencing and to delete imposition of the maximum te...
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Opinion Defendant had been permanently enjoined from harassing W. R. He was charged with violating this court order on eight occasions in February and March of 1980, violations of Penal Code section 166, subdivision 4, criminal contempt. Following his conviction, defendant appeals. The trial court refused to allow the expert testimony of a psychiatrist in order to establish a diminished capacity d...
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Opinion Plaintiff, Leroy Griffith, appeals from a judgment for defendant, City of Monrovia, in an action for damages for personal injuries. The appeal is on a settled statement. On July 14, 1979, members of the Monrovia Police Department responded to a call of shots being fired. At the scene, suspicion attached to plaintiff, who was placed under arrest, handcuffed, and walked a dis*Supp. 8tance of...
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Opinion Michael B. Lloyd, an attorney, defended one of a trio of defendants in a death penalty case which was transferred from Riverside County to San Diego County. During the trial, counsel for another of the defendants was cited for contempt. On December 4, 1981, after a hearing, counsel was found in contempt and sentenced to five days in jail with a $500 fine. Lloyd was not present at ...
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Opinion This appeal presents two questions of importance to the trial bar: (1) the meaning of the phrase “the general *911 substance of the testimony which the witness is expected to give” as provided in Code of Civil Procedure section 2037.3 1 governing the contents of expert witness exchange lists; and (2) the meaning of the word “impeachment” as used in section 2037.5 governing the testi...
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Opinion Plaintiff Howard Buckley (hereafter husband) brought this action against Marina Buckley (hereafter wife), alleging that she fraudulently induced him to enter into a void marriage. He appeals from a judgment entered against him after the grant of wife’s motion for “summary adjudication of issues.” We affirm. *930 I Husband, a cardiologist, and wife were married i...
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Opinion This is an appeal from an order construing the trust established by the will of Isidor Silver (Decedent) holding that on the death of his surviving spouse (Helen) the trust’s assets were to pass to Helen’s estate by intestacy and not by Decedent’s will. Against a number of contentions including claims that Helen signed a waiver and thereby made a binding election, and that the will sh...
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*957 Opinion This caseinvolves the State of California’s most recent attempt to institute regulations in the aid to families with dependent children (hereinafter AFDC) program in California that assume the availability of a stepparent’s income to support a nonadopted stepchild, without violating pertinent federal laws. Prior attempts by California to enact such regulations were i...
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Opinion Plaintiff-appellant Charlene Grogan-Beall brought this action as a class action against Ferdinand Roten Galleries and MacMillan, Inc., for failure to comply with the disclosure-disclaimer provisions of the California Sale of Fine Prints Act (hereafter the Act). (Civ. Code, §§ 1740-1745.) After a jury trial, judgment was entered in plaintiff’s favor; however, the court granted defendants...
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*990 Opinion Wilbur and Jacqueline Miller were married in 1972 and divorced in 1979. Before marrying Jacqueline, Wilbur contracted to buy a house, using his separate funds for the down payment. Escrow did not close until after the parties married, however, at which time Wilbur and Jacqueline took title as joint tenants. Jacqueline appeals a judgment awarding the house to Wilbur as his separat...
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Opinion Rita Ann Alvarado, Kenneth Charles Cosper, and Irvin D. Grant appeal after each of them was convicted of multiple crimes during a single incident. All three appellants were convicted of two counts of attempted robbery (Pen. Code, §§ 664/211) 1 and one count of burglary (§ 459). Grant was also convicted of possession of a sawed-off shotgun (§ 12020). Alvarado was convicted of receiving...
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Opinion The City of Oxnard (City) appeals from a judgment of the Superior Court of Ventura County granted under Code of Civil Procedure section 437c following the granting of a summary judgment against it in favor of respondent Pinewood Investors, a limited partnership, (Pinewood), in the sum of $59,878 together, with interest and costs. The sum of $59,878 represented that amount of the t...
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Opinion Appeal from a judgment (order of dismissal) after the trial court sustained respondents’ demurrer to appellant’s complaint for declaratory relief without leave to amend and dismissing the action. *1044 Appellant filed a complaint for declaratory relief alleging the following: Appellant owns a surface mining operation for the mining and quarrying of native clay material used in the...
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134 Cal.App.3d 1 (1982) 184 Cal. Rptr. 346 THE PEOPLE, Plaintiff and Respondent, v. AVILA DALE ROWLAND, Defendant and Appellant. Docket No. 11378. Court of Appeals of California, Third District. June 25, 1982. *4 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Ezra Hendon, Chief Assistant State Public Defender, Mark L. Christiansen and Charles M. Bonneau, Dep...
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*17 Opinion In early September 1981, respondent, in his capacity as Public Guardian for Siskiyou County, petitioned the superior court for reappointment as conservator of the person and estate of William Wilford Murphy pursuant to Welfare and Institutions Code section 5361, 1 asserting the conservatee (Murphy) was still gravely disabled, suffering from alcoholism. The ...
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Opinion The State of California, acting through the State Lands Commission (the State), brought this action for declaratory re *23 lief, an injunction, accounting and restitution against the County of Orange (the County) and its harbors, beaches and parks district. The State seeks to halt the County’s practice of spending for its own municipal purposes revenue derived from tidelands improveme...
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Opinion This cause originated in the Municipal Court for the Alameda County Oakland-Piedmont Judicial District. Upon a judgment of that court for the above-named defendants (hereafter, for convenience, Kroesen), plaintiff Connecticut Printers, Incorporated, appealed to the Appellate Department of the Superior Court of Alameda County. On its certification by the appellate department of the sup...
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134 Cal.App.3d 62 (1982) 184 Cal. Rptr. 505 In re LARRY C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. LARRY C., Defendant and Appellant. Docket No. 38996. Court of Appeals of California, Second District, Division Five. July 21, 1982. *64 COUNSEL Tibor Toczauer, under appointment by the Court of Appeal, for Defendant and Appellant. George Deukmejian, At...
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Opinion This action, based on promissory notes secured by deeds of trust, was brought by the trustee of an inter vivos trust against the trustors of the deeds of trust upon theories of waste, fraud and deceit, and negligent representation for permitting real property to be sold to the State of California for failure to pay real property taxes. Demurrers were sustained without leave to ame...
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134 Cal.App.3d 85 (1982) 184 Cal. Rptr. 325 LESTER E. OLSON et al., Plaintiffs and Respondents, v. KENNETH CORY, as State Controller, et al., Defendants and Appellants. Docket No. 63644. Court of Appeals of California, Second District, Division Five. June 25, 1982. *88 COUNSEL George Deukmejian, Attorney General, Richard D. Martland, Assistant Attorney General, and Henry G. Ullerich, Deputy Attor...
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Opinion In 1975 appellant was found not guilty by reason of insanity of committing forcible oral copulation (Pen. Code, § 288a). Pursuant to the provisions of Penal Code section 1026, he was committed to the state hospital at Atascadero for treatment. Before his initial term expired, the district attorney filed a timely petition to ex *120 tend the commitment for a period of ...
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134 Cal.App.3d 130 (1982) 185 Cal. Rptr. 9 MILTON FARMER, Plaintiff and Respondent, v. CITY OF INGLEWOOD et al., Defendants and Appellants. Docket No. 63918. Court of Appeals of California, Second District, Division Four. July 22, 1982. *133 COUNSEL Howard Rosten, City Attorney, Jack Ballas, Chief Assistant City Attorney, and Lynn Willhite, Assistant City Attorney, for Defendants and Appellants. ...
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Opinion Defendant was charged with possession for sale of a controlled substance, in violation of section 11378 of the Health and Safety Code. After his motion to suppress, made under sec*146tion 1538.5 of the Penal Code, was denied he pled guilty and was granted probation. He has appealed. The sole issue in the case at bench is the validity of an “airport search” of defendant’s checked luggage. W...
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134 Cal.App.3d 148 (1982) 184 Cal. Rptr. 444 In re the Marriage of JACQUELINE J. and ROBERT A. JOHNSON. JACQUELINE J. JOHNSON, Respondent, v. ROBERT A. JOHNSON, Appellant. Docket No. 49441. Court of Appeals of California, First District, Division One. July 23, 1982. *151 COUNSEL Donald J. De Vries and Michaud, Weber, De Vries & Hernandez for Appellant. William K. Wilburn and Nancy Ann Gee for Res...
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*167Opinion The instant appeal is from a judgment of dismissal after sustaining respondents’ demurrer without leave to amend to appellant’s “Complaint for Injunctive Relief and Civil Penalties,” which sought to enjoin implementation by respondents of a distribution and sales agreement, known as the “Foremost/U.G. Dairy Program” (hereinafter Dairy Program). According to the allegations of the compl...
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Opinion This is an appeal by Security Pacific National Bank (hereinafter the bank), as administrator with will annexed, from two orders1 of the Los Angeles Superior Court, sitting in probate, which constitute the final order and decree of distribution in an estate. There is a cross-appeal by the executrices of the will of the original executor of the estate, now deceased, who was the residuary be...
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Opinion Defendant was charged with an act of prostitution, and was released on bail. At arraignment the defendant appeared in propria persona, and the case was set for trial on October 29, 1980, the 35th day after arraignment. On the day of trial the case was assigned to a trial court where it trailed for several days. (Since the 45th day fell on Nov. 8, a Saturday, the statutory last day for tria...
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*Supp. 14Opinion Defendant appeals his conviction of count I, violating Vehicle Code section 14601.1, subdivision (a)1 (driving with a suspended license), and of count II, violating Vehicle Code section 4000, subdivision (a) (lacking current automobile registration). The evidence admitted at trial showed that defendant’s driver’s license had been summarily suspended by the Department of Motor Vehi...
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Opinion Plaintiffs appeal from that part of a judgment which denies their petition to compel disclosure of a Medi-Cal audit manual for health care providers. Defendants cross-appeal from that part of the judgment requiring them to disclose the professional qualifications of a Medi-Cal physician auditor. 1 Plaintiffs are three hospitals offering Medi-Cal program services as he...
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134 Cal.App.3d 795 (1982) 184 Cal. Rptr. 772 THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY PITCOCK, Defendant and Appellant. Docket No. 11617. Court of Appeals of California, Third District. July 26, 1982. *797 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Louis N. Hiken, Deputy State Public Defender, for Defendant and Appellant. George Deukmejian, A...
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Opinion Appellant, Michael Claud Sutter, and Archie May-hew (not a party to this appeal) were charged with violation of Penal Code section 211, robbery. There were special allegations that Mayhew used a firearm (Pen. Code, § 12022.5) and that appellant was armed as a principal (Pen. Code, § 12022 subd. (a)). Thereafter, the court accepted defendant Mayhew’s guilty plea to robbery in ...
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Opinion Plaintiff and appellant Bradley Eaton filed an action for personal injuries under the Jones Act, alleging that he was a “member of the crew” of defendant’s derrick barge, that the vessel was unseaworthy and defendant was negligent, and, as a result, plaintiff was injured. Defendant Connolly-Pacific, Inc., his employer, moved for summary judgment on grounds that plaintiff was not a...
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*834 Opinion Petitioner, an unincorporated political committee supporting a member of the California State Assembly who is a candidate for an additional term in office, seeks a writ of mandate or prohibition against respondent superior court to command respondent to dissolve a preliminary injunction entered by it on June 17, 1982. Respondent issued the injunction at the request of real party ...
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Opinion Plaintiffs sued the City of Oxnard and the Oxnard City Housing Authority for damages for personal injuries allegedly sustained when the car in which plaintiffs were riding was struck by *858 a vehicle owned and operated by defendants. The city moved for summary judgment and an award of costs pursuant to Code of Civil Procedure section 1038 1 on grounds that the city and the housing ...
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134 Cal.App.3d 860 (1982) 184 Cal. Rptr. 867 LAWRENCE MICHAEL PAIGE, a Minor, etc., et al., Plaintiffs and Appellants, v. NORTH OAKS PARTNERS et al., Defendants and Respondents. Docket No. 63895. Court of Appeals of California, Second District, Division Five. August 9, 1982. *861 COUNSEL Albert I. Kaufman for Plaintiffs and Appellants. McGahan & Engle, Mary E. Schroeder, Omansky & Lazarus...
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Opinion The Governor of Oklahoma signed and issued requisition documents on July 10, 1981, charging Robert Wallace Gilchrist had been convicted of larceny and “escape[d] prior to completion of sentence.” The Governor’s warrant was lodged against Gilchrist who has been residing in California for some time. The Governor of California issued an extradition warrant. Gilchrist petitioned for reconsi...
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134 Cal.App.3d 874 (1982) 185 Cal. Rptr. 155 THE PEOPLE, Plaintiff and Respondent, v. JOHN GOMEZ, Defendant and Appellant. Docket No. 42566. Court of Appeals of California, Second District, Division One. August 10, 1982. *876 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Laurance S. Smith, Deputy State Public Defender, for Defendant and Appellant. Georg...
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Opinion Diana and Donald Coppinger seek review by writ of mandate of an order denying their motion to expunge a notice of lis pendens recorded by Diane McKay. 1 (See Code Civ. Proc., § 409.4.) For convenience, the Coppingers are referred to as defendants rather than petitioners and real party in interest McKay is referred to as plaintiff. Plaintiff has not made a return to...
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*895 Opinion Robert Maciel, Vincent Maciel and Louis Peralta, real parties in interest (hereafter defendants), were charged with murder (Pen. Code, § 187) with a special circumstance allegation that the murder was committed while lying in wait (Pen. Code, § 190.2, subd. (a)(15)), and two counts of attempted murder (Pen. Code, §§ 187, 664.) At the preliminary hearing, the magistrate bound over...
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Opinion Beverly Bail Bonds appeals from orders denying motions by it to vacate the forfeiture of two bail bonds. On January 18, 1980, the San Mateo County District Attorney filed an information charging Jimmy Lee Horner, Lem James Moore, and Antoinette Island (aka Theresa Allen, Toni Island, Cathy Chambers, and Theresa Island) with two counts of robbery (Pen. Code, § 211). A third count c...
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134 Cal.App.3d 916 (1982) 185 Cal. Rptr. 30 ROBERT WILLIAM HARGRAVE et al., Plaintiffs and Appellants, v. WILLIAM WINQUIST et al., Defendants and Respondents. Docket No. 60993. Court of Appeals of California, Second District, Division Five. August 11, 1982. *920 COUNSEL Allan F. Grossman and Morris N. Karch for Plaintiffs and Appellants. Ives, Kirwan & Dibble, Melvin F. Seifert and Herbert Ju...
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134 Cal.App.3d 929 (1982) 184 Cal. Rptr. 879 BURBANK STUDIOS, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and AUGUST YOUNT, Respondents. Docket No. 62411. Court of Appeals of California, Second District, Division Five. August 11, 1982. *931 COUNSEL Samuelsen & Coalwell and Richard Fineberg for Petitioner. Rose, Klein & Marias and Jerome Berman for Respondents. OPINION HASTINGS, J. ...
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Opinion This is an appeal from a decree filed April 20, 1981, in a proceeding to determine the persons entitled to distribution of an estate. (Prob. Code, § 1080; 7 Witkin, Summary of Cal. Law (8th ed. 1974) Wills and Probate, §§ 260-262, pp. 5761-5762.) 1 Appellant Lucien Frederick Secreto is the executor of the estate of Allesandro Secreto and decedent’s only surviving son. Respondents Ch...
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Opinion Appellant was charged with two counts of grand theft (Pen. Code, § 487, subd. 1) and two counts of vehicle theft (Veh. Code, § 10851). Property taking enhancements were alleged as to each vehicle theft count (Pen. Code, § 12022.6, subd. (a)). Appellant was found guilty on all counts and was sentenced to the upper base term of three years for count three (vehicle theft) plus a one-...
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*966 Opinion Statement of the Case On May 14, 1981, Superior Court Judge Richard C. Kirkpatrick issued a judgment and a peremptory writ of mandate commanding the State Personnel Board (hereinafter the appellant or the board) to set aside its decision dated May 27, 1980, denying compensation to respondent, a traffic officer with the California Highway Patrol (hereinafter CHP)...
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*975 Opinion Plaintiff W. L. Tyler, Jr., appeals from the trial court’s judgment dismissing the action after defendant State of California’s demurrer to the complaint was sustained with leave to amend and Tyler failed to amend the complaint within the time prescribed. The undisputed facts reveal that appellant, a California resident, owed an obligation for child support paym...
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Opinion This is an appeal from a judgment on a cross-complaint, requiring appellant to indemnify respondent city for a judgment rendered in an action for personal injuries. We affirm. In 1975 a man named Svorinich, employed by appellant, was injured while operating a forklift on a wharf owned by the city and then used by appellant. That action resulted in a substantial judgment in favor of Svorini...
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*988 Opinion Respondents, Boston Properties, a Massachusetts business trust, and Mortimer B. Zuckerman (hereafter referred to as Boston), filed a complaint and later a first amended complaint (hereafter the complaint) against appellants, Pirelli Tire Corporation, Pirelli Sales Pacific and Pirelli Sales West, Inc. (hereafter referred to as Pirelli or appellants) and others for unl...
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Opinion By this decision we affirm the judgment of the superior court awarding $300,000 in attorneys’ fees to counsel for respondents. Although no appeal was taken from the judgment for respondents on the merits, a brief recitation of the underlying action, which led to the award of the attorneys’ fees, will provide assistance in understanding the basis for the award. *1002 Respondents brou...
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134 Cal.App.3d 1016 (1982) 184 Cal. Rptr. 884 THE PEOPLE, Plaintiff and Respondent, v. KENNETH McKINZIE, Defendant and Appellant. Docket No. 38595. Court of Appeals of California, Second District, Division Five. August 12, 1982. *1018 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Landra E. Rosenthal, Deputy State Public Defender, for Defendant and Appel...
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134 Cal.App.3d 1022 (1982) 185 Cal. Rptr. 41 VILLAGE LAGUNA OF LAGUNA BEACH, INC., et al., Plaintiffs and Appellants, v. BOARD OF SUPERVISORS OF ORANGE COUNTY, Defendant and Respondent; ALISO VIEJO COMPANY, Real Party in Interest and Respondent. Docket No. 25486. Court of Appeals of California, Fourth District, Division Two. August 12, 1982. *1025 COUNSEL Shute, Mihaly & Weinberger, E. Clemen...
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Opinion James F. Boccardo and others appeal from judgments dismissing an antitrust action brought by them against Safeway Stores, Inc. and others, respondents in this appeal. Boccardo and many cattlemen and feed lot operators sued respondents, operators of retail food chain stores, in the United States District Court (Northern District of California) (Boccardo I). Seeking ...
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Opinion Weston Hill appeals from the order extending his commitment under Penal Code section 1026.5. He contends: “The motion to dismiss the extended commitment proceedings for lack of timely filing/hearing of the petition should have been granted.” In 1976 appellant was committed to a state hospital for treatment pursuant to section 1026 of the Penal Code after he had been found not guilty o...
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Opinion Plaintiffs Monroe and Eldra Bounds (Bounds) and Gene and Grace Hand (Hands) seek damages for fraud perpetrated *4 upon them by the corporate defendants Figurettes, Inc., and Susan’s of California, Inc., through individual defendants Hi Hand (no relation to the plaintiffs Hands), Angela Serritella, Del Remme and other individually named codefendants (collectively called Figurettes). Th...
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Opinion Plaintiff appeals from a jury verdict in her favor in a medical malpractice action, awarding her $1,708 in damages. The complaint in this case was filed on January 21, 1977. The basic allegations thereof charged negligence against defendant Frudenfeld and others in the performance of bilateral tubal ligation upon plaintiff on or about June 27, 1974, for the purpose of sterilization. T...
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Opinion Appellant Shirley Monti (Shirley) appeals from an order vacating with prejudice her order to show cause and petition for dissolution. The trial court found that Shirley was not a putative spouse within the meaning of Civil Code section 4452, 1 because the Montis did not enter, or purport to enter, into another marriage after their marriage was terminated on May 26, 1959...
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Opinion Pursuant to a plea bargain, appellant pleaded guilty to robbery and simple kidnaping, and he admitted using a firearm. He was sentenced to a term of seven years in the state prison. His appeal does not challenge the validity of his guilty plea, but rather the court’s calculation of credits on his sentence pursuant to Penal Code section 2900.5. The trial court granted appellan...
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Opinion Petitioners Symmar, Inc./Clarott II and one of its insurance carriers, Fremont Indemnity Company, seek review and annulment of a decision and order of the Workers’ Compensation Appeals Board (WCAB or the Board) determining that Fremont Indemnity is not entitled to contribution from the Uninsured Employers Fund with respect to benefits awarded Charles A. Eckman (the applicant) on account...
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Opinion Before us are cross-appeals from a jury verdict and judgment in an eminent domain action instituted by the Redevelopment Agency of the City of Concord (respondent) to condemn a leasehold interest owned by Contra Costa Theatre, Inc. (appellant). During the course of the proceedings, appellant claimed that condemnation damages should include the diminution in value of his prope...
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Opinion Kenne H-K Chang, formerly an assistant professor in the anthropology department of the University of California, Davis, appeals from a judgment on stipulated facts, determining that he had no due process right to a hearing on denial of academic tenure. The judgment also determined that respondents, Regents of the University of California and several academic and administrative officers ...
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Opinion David D. Dickerson and Karl D. Chandler seek a writ directing respondent superior court to set aside an order compelling them to answer questions propounded at a deposition. Dickerson is a defendant in an action now pending in respondent court brought by real parties Thomas J. Perrito and others. Real parties moved for an order compelling Chandler, an attorney who had advised Dick...
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Opinion Plaintiff in an action for inducing breach of contract, intentional interference with prospective economic advantage *123 and intentional infliction of emotional distress, appeals from a judgment of dismissal entered after the trial court sustained a demurrer without leave to amend. We affirm. During a period of some 18 years, from 1950 until 1968, plaintiff Jero...
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Opinion Statement of the Case In an information filed by the District Attorney’s Office of Los Angeles County, appellants were originally charged in the superior court with the crimes of assault with intent to commit murder. (Pen. Code, § 217.) Said charge was later amended on motion of the People to assault with a deadly weapon (Pen. Code, § 245, subd. (a)) subsequent to the repeal of Penal ...
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Defendant appeals from the judgment of conviction entered upon his plea of guilty to forcible rape committed in concert with another person. (Pen. Code, §§ 261, subd. (2), 264.1; all further statutory references are to sections of the Penal Code.) Having judicially admitted that he was armed with a firearm in the commission of the rape in violation of section 12022.3, subdivision (b), defendant n...
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Opinion Defendant appeals from the judgment of conviction entered upon plea of guilty to issuing checks without sufficient funds with intent to defraud. (Pen. Code, § 476.) Defendant contends the court erred in denying her motion, pursuant to Code of Civil Procedure section 170.6, to disqualify the sentencing judge. Defendant also contends the court erred in sentencing her to the state prison. ...
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Opinion Respondent C. S. Zang filed suit against Joseph Oakley, James Oakley, Michael Priest, Northwestern Title Company of Alameda County (Northwestern) and its escrow employee, Peggy Chance (Chance), on December 23, 1974. Zang’s complaint alleged, inter alia, that appellants Northwestern and Chance negligently failed to perform escrow instructions, resulting in the loss of his security ...
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Opinion This is an appeal from a judgment of dismissal under section 583, subdivision (b) 1 of the Code of Civil Procedure for failure to bring this action to trial within five years. *172 This action for breach of contract was filed on August 12, 1974, naming four defendants and 100 Does, but did not include respondent, Portsmouth Square, Inc. among the named def...
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Opinion Appellants holders of farm labor vehicle driver certificates who have been convicted of violating section 23102, subdivision (a) of the Vehicle Code 1 (driving under the influence of intoxicating liquor), appeal from a judgment of the Monterey County Superior Court which denied their petition for writ of prohibition and mandate challenging the constitutionality of section 12520.5, whi...
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Opinion This is an appeal from a conviction of robbery (Pen. Code, § 211) and a finding by the jury that in the commission of one of the counts of robbery defendant used a gun, in violation of sections 12022.5 and 1203.06, subdivision (a)(1), of the Penal Code. At about 9:45 p.m. on November 13, 1980, Eva Palmer, her uncle, Archie Durham, and a friend, Charles Forster, were walking on University A...
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Opinion Plaintiff appeals from an order of dismissal, entered after an order sustaining without leave to amend, a demurrer to her first amended complaint (hereinafter complaint). We reverse. *192 Marie Call, mother of Elizabeth, sued as guardian ad litem for Elizabeth Call, who was born on September 5, 1972. Elizabeth Call was a minor eight years old and incompetent at the t...
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Opinion Petitioner seeks a writ of mandate directing respondent court to grant his motion to set aside a criminal information pending against him. Facts Petitioner stands accused by information of felonious burglary in violation of Penal Code section 459. The preliminary hearing evidence shows that between 8:30 and 9 a.m. on a Thursday petitioner broke into an unoccupied mobilehome, which...
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Opinion Petitioners, Ricky Ortega and Michael Angelo Morales, face trial on charges of robbery, rape, murder with special circumstances, and conspiracy to murder. Each contends he has been improperly held to answer these charges on the grounds the magistrate permitted unauthorized persons to attend the preliminary examination and that the evidence against them was the product of an unlawful arr...
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Opinion Petitioner Tri-County Elevator Company, Inc., seeks a writ of mandate directing respondent Santa Barbara Superior Court to vacate its order denying petitioner’s motion for a new trial and thereafter conduct a hearing for the purpose of ruling on the merits of said motion. We issued an alternative writ. 1 *274 On March 19, 1982, judgment in favor of real parties in interest and a...
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Opinion Gretchen Harris appeals from a superior court judgment which granted the San Dieguito Union High School District’s *282 (District) petition for a writ of mandate to set aside a decision of the Commission on Professional Competence (Commission) 1 declaring the District lacked cause to dismiss Harris from her position as a certificated public school teacher for the District. The super...
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Opinion Defendant was charged with violating Health and Safety Code section 11351, possession of cocaine for sale, and Health and Safety Code section 11377, possession of phencyclidine (PCP). After motions under Penal Code sections 995 and 1538.5 were denied, defendant entered a guilty plea to the Health and Safety Code section 11351 charge and the other count was dismissed. At approximately ...
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*297 Opinion After our original opinion was filed on July 17, 1981, 1 the Supreme Court granted appellant’s petition for hearing, then retransferred the cause to our court for consideration in light of Dawn Investment Co., Inc. v. Superior Court (1982) 30 Cal.3d 695 [180 Cal.Rptr. 332, 639 P.2d 974]. Upon due consideration, we conclude the sa...
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Opinion This appeal raises the question whether the 30-day period for commencement of an action against a public entity (Gov. Code, § 946.6, subd. (f) 1 ), following the granting of a petition for relief from the provisions of section 945.4, commences to run from the making of the order, from receipt of the clerk’s notification of the ruling or from some other time. We hold that the sending o...
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Opinion Appellant, Linda Gates, was arrested for violation of San Jose Municipal Code 10.40.010 (hereafter the ordinance)—loiter*312ing for the purpose of soliciting an act of prostitution. She challenges the ordinance on the grounds it is: (1) preempted by state law which fully occupies the field of criminal sexual conduct; (2) unconstitutionally vague for failure to give fair notice of the condu...
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Opinion This is an appeal from a judgment ordering contribution between defendant and appellant Richard E. Holl and codefendant and respondent Baldwin & Howell, a corporation, on a pro rata basis from a verdict awarding compensatory damages against both on a complaint charging them with negligent misrepresentation or fraud. This is the third in a series of appeals in a matter that ha...
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Opinion Petitioners Anderson-Cottonwood Disposal Service (Anderson) and Mission Insurance Company (Mission) seek annulment of an order of respondent Workers’ Compensation Appeals Board (board) denying reconsideration of an award in favor of Victor Webb. We affirm the order of the board. Facts On March 5, 1975, Webb, employed by Anderson, was working as a mechanic on the tilt cab of a truck. While...
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Opinion Defendant was convicted by a jury of assault with a deadly weapon. (Pen. Code, § 245, subd. (a).) He seeks reversal for refusal of the trial court to give a requested Sanchez instruction that the defendant is entitled to an acquittal if the evidence raises a reasonable doubt of self-defense. (People v. Sanchez (1947) 30 Cal.2d 560 [184 Cal.Rptr. 673].) We hold that such an instruc...
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Opinion Appellant appeals his convictions after pleading guilty to rape in concert in violation of former Penal Code 1 section 261, subdivisions (2) and (3), sodomy in concert in violation of section 286, subdivision (d), and oral copulation in violation of section 288a, subdivision (c). Appellant was sentenced to a principal term of nine years, the upper base term for sodomy, and to full, se...
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Opinion Plaintiffs, Frank and Elvera Seghesio and Thomas and Dorothy Nelson, brought this mandamus action against the County of Napa, the board of supervisors of that county and James Hickey, in his capacity as Director of Conservation—Development and Planning Department of the County of Napa. *373 By such action, plaintiffs sought to compel defendants to withdraw an environmental impact re...
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Opinion Debra S., a minor, appeals from an order declaring her a ward of the court and committing her to the California Youth Authority (CYA) for a period of three years and two months. We affirm the order of commitment. On June 24, 1981, a juvenile court petition was filed alleging that Debra S. came within the provisions of section 602 of the Welfare and Institutions Code in that she had (1...
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Opinion Plaintiff and respondent County of San Mateo (the County) commenced an action against defendant and appellant Robert Lee Booth (defendant) to establish that he was the father *391 of a minor whom the County had supported in its aid to families with dependent children (AFDC) program, and to obtain reimbursement of the funds the County had paid out. After a nonjury tria...
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Opinion The primary question in this appeal is whether respondent Sacramento County Board of Supervisors (Board), in amending its general plan, has complied with the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) 1 and administrative guidelines (Cal. Admin. Code, tit. 14, § 15000 et seq.). As we conclude that it has not, we shall reverse the judgment of the ...
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Opinion We here consider whether defense evidence of a victim’s subsequent acts of violence is admissible in a criminal case to prove his aggressive and violent character at the time of the earlier crime. We conclude that this post crime character evidence is relevant and, like all relevant evidence, is admissible unless properly excluded under Evidence Code section 352. A jury convicted defe...
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Opinion Plaintiff IMO Development Corporation (IMO) has appealed from a judgment on the pleadings in an action brought for damages for breach of contract involving a conveyance of real property by defendant Dow Corning Corporation (Dow Corning) and for declaratory relief as to the validity of a waiver provision in a later contract. *455 Defendant for its part has appealed fro...
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*468 Opinion The City of Atascadero (City) filed a complaint for declarative relief and an injunction against Kathleen E. Daly and two other named defendants (appellants). The cause of action for declarative relief sought a declaration of invalidity of a proposed ordinance and of the nonavailability of the initiative process for the purpose of enacting the ordinance. Appellants filed an ans...
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135 Cal.App.3d 473 (1982) 186 Cal. Rptr. 114 A & M PRODUCE CO., Plaintiff, Cross-defendant and Respondent, v. FMC CORPORATION, Defendant, Cross-complainant and Appellant. Docket No. 24731. Court of Appeals of California, Fourth District, Division One. August 27, 1982. *477 COUNSEL Paul, Hastings, Janofsky & Walker, Douglas C. Conroy, Claudia A. Carver, Byrd, Sturdevant, Pinney, Caldwell &...
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Opinion In this case we are called upon to determine whether there can be unique circumstances which would allow California courts to take jurisdiction over the dissolution of a marriage where neither of the parties is “domiciled” in this state. For the reasons to be explained, we hold that the actual residency of one of the spouses, coupled with unique circumstances, including the unavai...
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Opinion This appeal is from a judgment entered in favor of respondent Wells Fargo Bank (Bank) after an order (1) vacating an order certifying a class, and (2) granting the Bank’s motion for summary judgment dismissing this action as a class action. *516This action is one of a number of legal actions between Susan and Gary Garfinkle (the Garfinkles) and Wells Fargo Bank, all of which arose after t...
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Opinion This appeal is from a summary judgment in favor of the employer, Nor-Cal Integrated Ceilings, in two proceedings coordinated pursuant to Code of Civil Procedure section 404.3 and rule 1540, California Rules of Court. 1 “‘Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his oppon...
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Opinion Petition for writ of mandate after the denial of defendants’ motion for summary judgment. Plaintiff in a first amended complaint stated two causes of action against defendants, one sounding in negligence and the other in breach of an oral contract. Defendants’ motion for summary judgment was denied as to the negligence cause of action and a petition for writ of mandate or prohibition is n...
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Opinion In this opinion we hold that a defendant who was defectively served with summons did not make that service retroactively valid by entering a general appearance after judgment was entered. We also reiterate that Code of Civil Procedure (all code references are to this code) section 473.5 does not govern a motion to set aside a default founded upon a fraudulent return of servic...
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Opinion Lockheed Missiles and Space Company (hereinafter Lockheed) and Harbor Insurance Company appeal from a judgment in favor of Gilmore Industries, Inc., aka M.B. Electronics Division (hereinafter M.B.) following the granting of M.B.’s motion for summary judgment. The facts of the case are undisputed. In 1965 Lockheed purchased a shaker-amplifier system from M.B. The system began to malfun...
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Opinion The Division of Medical Quality of the Board of Medical Quality Assurance 1 appeals from an order of the San Benito County *563 Superior Court denying its petition to compel respondents, Hazel Hawkins Memorial Hospital and its administrator, Thomas J. Harn, to produce hospital records pertaining to four unnamed patients. We reverse. Facts Appe...
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Opinion This is a writ of review from an order of the Workers’ Compensation Appeals Board (WCAB) and a denial of a petition for reconsideration. The order is that the county is liable for the value for services rendered Zachary Rottman (Rottman) by Kaiser Foundation Hospital (Kaiser). The facts are that Rottman 1 was an employee of Los Angeles County (County). On September 27, 1977, Rottman...
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Opinion This is an appeal from an order of dismissal entered after respondent’s demurrer to appellant’s first amended complaint was sustained without leave to amend. *576 The question presented in this appeal is whether appellant may maintain an action at law against respondent Hartford Accident and Indemnity Company (Hartford) for its alleged failure to pay workers’ compensation benefits a...
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Opinion Sandra Diola (claimant) was released from prison after her conviction for involuntary manslaughter was reversed on appeal. On remand the district attorney’s motion to dismiss was granted by the trial court. She presented a claim for injury sustained through erroneous imprisonment to the Board of Control of the State of California (board). (See Pen. Code, § 4900 et seq.) 1 The board re...
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Opinion Appellant, age 18 at all times mentioned herein, pled guilty to assault with a deadly weapon (Pen. Code, § 245, subd. (a)). The court committed him to the California Youth Authority (YA or Authority), which rejected him. Thereupon he was sentenced to prison for a term of four years. His appeal challenges his rejection from the Authority, alleging he was denied due process, th...
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Opinion We filed our former opinion in this cause on May 7, 1982, holding that the trial court had prejudicially erred in denying appellants’ suppression motion. Respondent filed a petition for rehearing. We granted a rehearing and heard oral argument. After further consideration we have decided our original conclusion was correct. Accordingly, we refile the opinion with some additional discuss...
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Opinion Probate Code section 2356, subdivision (d), prohibits the court from authorizing the sterilization of a conservatee. The issue in this writ proceeding is whether this statutory proscription prevents the superior court from authorizing a lifesaving surgical operation which incidentally renders the conservatee sterile. We hold that it does not. *628 Petitioner, the But...
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Opinion Jerri Holmes appeals from a summary judgment dismissing an action she brought against respondent California State *637 Automobile Association on behalf of herself and the class of persons sharing with her the status of dual coverage by respondent and by the Medicare program administered by the United States Department of Health, Education, and Welfare (now the Departm...
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Opinion The above-named parties, in 1975, entered into a written partnership agreement under which they proposed to practice dentistry. As relevant here, the agreement provided: “Should any partner be forced to bring suit to enforce the terms of this partnership agreement, the prevailing partner shall be awarded his costs of suit incurred therein and his reasonable attorney’s fees......
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Opinion This is an appeal by plaintiff, Jewell Jubert, from a judgment entered in favor of defendants, Shalom Realty and Shalom Ben-Levy, following the granting of defendant’s motion for summary judgment. We affirm. On September 16, 1980, plaintiff filed a complaint for damages against defendants, the owners and managers of the apartment building in which plaintiff was a resident, following the de...
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Opinion This appeal arises out of an unlawful detainer action brought in the municipal court. It is before us on transfer from the Appellate Department of the Los Angeles Superior Court, pursuant to rule 62(a) of the California Rules of Court. Plaintiff is the owner of a duplex located in the City of Los Angeles. She occupies one unit of the building and rents the second unit to defe...
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Opinion The instant proceeding presents what appears to be a question of first impression in this state, i.e., “May an arbitrator by reference to Code of Civil Procedure section 583 ‘dismiss’ a matter that has been stayed in the Superior Court pending an ordered arbitration?” Here the underlying legal action was initiated by plaintiffs as the heirs of David C. Young in the Los Angele...
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Opinion The decedent Opal Corinne Kennedy (Decedent) died testate on December 23, 1977. Her will, which was admitted to probate May 12, 1978, made provisions for her husband, Bob C. Kennedy (Husband), and her daughter, Patricia Lou Kennedy, now Patricia Hoskin (Daughter). Husband thereafter died. The executor of Decedent’s estate filed a petition to determine interest and entitlement to distributi...
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Opinion James R. Hart shot his wife Theresa and then himself. She died immediately; he died later the same day (Mar. 26, 1980). Both died intestate.1 At the time of the deaths the couple owned real property in joint tenancy and certain items of personal community *687property consisting of life insurance policies, a sailboat, trailer and bank account. The petition of Serrato, the administrator of...
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Opinion Appellant William Martin was a judge in the Citrus Municipal Court, a position he held for 20 years before his retirement in September 1977. Appellant Waldo A. Brown was an attorney in the community served by that court. This case involves the improper disposition of some 85 misdemeanor cases in which the defendants were charged with driving under the influence of alcohol and/or drugs (fo...
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Opinion A police officer, in the process of arresting a prostitute in the parking lot of a motel, is struck and injured by an automobile driven by the prostitute’s customer. The police officer sues, alleging in the alternative that the customer was guilty of negligence and intentional misconduct. Is he barred from recovery by the “fireman’s rule” because the accident occurred in the line ...
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Opinion This petition raises the question of whether a is “illegally committed” by the magistrate within the meaning of Penal Code section 995 when he is denied the opportunity to present testimony concerning the prejudice caused by prearrest delay. We that testimony related to a nonstatutory motion to dismiss for prearrest delay is not integral to the preliminary examination. A prevented from ...
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Opinion Once again, a court is presented by one of those tensions, endemic in a free and democratic society, wherein the safety of *776 the court, those required to attend to the court, and the public present at a criminal trial, strains against the defendants’ right to a fair public trial before an impartial jury. On the basis of information disclosed to the trial court...
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Opinion Defendant Robert Gene Cook appeals after a jury convicted him of burglarizing an attached garage and enclosed patio at the residence of Michael Van Horn in Stanislaus County. We reject his several contentions and consequently affirm the judgment. Factual and Procedural Background Michael Van Horn was awakened in the early morning hours of August 6, 1980, by loud knocking on his back...
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Opinion Statement of the Case This is an appeal from a judgment dismissing the action for failure to make a timely amendment to the complaint after the sustaining of a demurrer. *801 On November 8, 1977, appellants were not permitted to vote in Groveland Community Services District in the County of Tuolumne. By letter of November 7, 1977, County Clerk Carlo DeFerrari had informed the prec...
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*814Opinion Petitioner seeks a writ of mandate directing respondent court to deny real party’s motion to suppress evidence in a criminal case. Facts On August 24, 1981, Bakersfield Police Officer Molinar and his partner were on patrol in uniform in a marked police car. The officers were assigned as a “prostitution patrol.” There was a problem at the time with numerous prostitutes walking the Unio...
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Opinion Defendant Martinez appeals from a judgment founded upon a jury’s verdicts finding him guilty of violations of Penal Code sections 288 (lewd and lascivious conduct with a child—count I), 288a, subdivision (c) (oral copulation with a person under the age of 14 years—count II), and 285 (incest—count III). We affirm the judgment for reasons as follows: The three appellate contentions ar...
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Opinion Defendant James O. Cheeks was found guilty, upon a jury’s verdicts of assaults with a deadly weapon in violation of Penal Code section 245, subdivision (a) (counts II and III), and possession of a concealable firearm by one previously convicted of a felony in violation of Penal Code section 12021 (count IV). He appeals from the judgment which was entered on the verdicts. The first of ...
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*834 Opinion Appellants, Certain Underwriters at Lloyds of London, England, by and through Lead Underwriter Stuart Edward James Fulton (hereafter Underwriters), appeal from summary judgment in favor of respondent Engs Motor Truck Company (hereafter Engs) awarding recovery in the sum of $24,919.37, plus interest ($1,405.05), plus costs of suit ($34.50). We reverse. We briefly...
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Opinion These two petitions, brought by juveniles from two different counties, challenge rulings made on their motions to suppress evidence. We do not reach the merits of either petition because we conclude that a juvenile is not entitled to pretrial 1 review of a suppression ruling made by the juvenile court. While we have not formally consoli *840 dated these two petitions, we dispose of ...
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Opinion Nature of Appeal: Appeal from a judgment of dismissal, after a demurrer was sustained, of an action brought by several insurance companies as a class *847 (appellants) against the State Board of Equalization (respondent) for refund of sales taxes paid to retailers on purchases made by appellants. The Issue and our Holding: We hold that article XIII (§ 2...
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Opinion This is an appeal from a judgment entered on May 13, 1981, denying appellant’s petition for writ of mandate. The sequence of events leading up to the denial of that petition is as follows: On October 24, 1979, an accusation was filed before respondent, Board of Medical Quality Assurance of the Department of Consumer Affairs of the State of California (Board), alleging that appellant, Marvi...
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Opinion Appellant was convicted of murder in the second degree (Pen. Code, § 187 et seq.) 1 following his stipulation to a trial without a jury in a “hybrid procedure” whereby he agreed he was guilty of at least involuntary manslaughter in exchange for the district attorney’s reduction of the maximum charge to second degree murder. The trial court was then asked to determine whether defendant...
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*875 Opinion Appellant timely entered a plea of “once in jeopardy” at the commencement of his second trial for the murder of Cynara Pope, the first having been declared a mistrial after a jury was impaneled because the deputy district attorney assigned the case was ill. At the second trial, McJimson was found guilty of second degree murder and sentenced to state prison. 1 Because we concl...
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Opinion Defendant appeals from the judgment entered after the trial court convicted him in count 1 of attempted robbery (Pen. Code, §§ 664, 211) with a firearm use finding (Pen. Code, § 12022.5), and in counts 2 and 3 of false imprisonment. (Pen. Code, § 236.) 1 Defendant contends the trial court erroneously denied his motion to quash incriminating statements he made to a police officer, ther...
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Opinion Cheryl Del Costello expected to receive $515 as a refund for overpayment of her state income taxes for 1979. In lieu of the check she found the money had been applied to offset an amount due to the state as a result of a judgment obtained against her for reimbursement of sums paid through the aid to families with dependent children program (AFDC). The funds supported her daughter,...
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Opinion Defendant Palomar Memorial Hospital (Palomar) summarily fired plaintiff Ruth Walker from her position as head nurse on October 19, 1978. Walker brought this action, charging she was wrongfully discharged without cause and without a pretermination hearing. The case was tried before a jury and after both sides rested, the court granted a defense motion for nonsuit as to the individu...
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Opinion Petitioner, Tex-Cal Land Management, Inc. (hereinafter Tex-Cal), seeks review of an order of the Agricultural Labor Relations Board (hereinafter Board) finding that Tex-Cal committed an unfair labor practice when it refused to sign a collective bargaining agreement to which Tex-Cal and real party in interest, United Farm Workers of America (hereinafter UFW), had assented. Tex-Cal’s sole c...
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Opinion Appellant Prisoners Union is a nonprofit organization concerned with the welfare of prisoners and their families. By this action for declaratory and injunctive relief, it and certain of its members challenge the power of state prison officials to ban it from distributing informational literature to visitors of inmates in a public parking lot located on prison property but outside ...
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Opinion This petition challenges a trial court ruling denying petitioner’s motion to dismiss charges of kidnaping (Pen. Code, § 207), child stealing (Pen. Code, § 278), and child abuse (Pen. Code, § 273a, subd. (1)). At the time of the alleged acts, the only arguably valid custody order1 gave petitioner custody .of the child who is the alleged victim. Thus, neither the kidnaping nor the child stea...
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Opinion This is an appeal by appellant Pine Mountain Lake Association from a judgment in favor of respondent Mountain Home Properties compelling appellant to transfer membership in its association to respondent. At issue in this case is the heretofore undecided question of whether Civil Code section 1466 1 bars an association of real property owners from imposing liability on n...
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*975Opinion After several months of negotiations on March 6, 1979, respondent/seller executed a writing entitled, “Superseding Agreement to Buy and Sell Real Property and Escrow Instructions” regarding 75 acres of industrial land located in the City of Pomona at a purchase price of $2.9 million. The document was signed as “Seller” by the president and secretary of respondent company and the corpor...
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135 Cal.App.3d 1009 (1982) 186 Cal. Rptr. 9 FLUOR DRILLING SERVICE, INC., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; IOANNIS DIAVATIS, Real Party in Interest. Docket No. 63365. Court of Appeals of California, Second District, Division Two. September 21, 1982. *1010 COUNSEL Keesal, Young & Logan and Scott T. Pratt for Petitioner. No appearance for Respondent. Olney, L...
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I dissent for the reasons stated in my dissent in Moran v. Superior Court (Cal.App.)....
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Opinion Petition for writ of mandate to compel the trial court to dismiss an action for failure of plaintiff to bring it to trial within five *1021 years from the time of filing the complaint. (Code Civ. Proc., § 583, subd. (b).) We granted the alternative writ and heard the matter. We now deny the petition. The question presented is whether an action may be dismissed under Code of Civil Pr...
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Opinion Regulation 4038 of the California Youth Authority (hereafter Department) provides: “An employee shall not carry or use firearms or other lethal weapons under any circumstances while on duty or acting in an official capacity.” (Cal. Admin. Code, tit. 15, § 4038.) In the summer of 1980, the Department reaffirmed the regulation following a series of public hearings. Robert M. Go...
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*9 Opinion Charlene Daves appeals an order granting Phillip Daves’ motion to quash writ of execution. The parties divorced in 1969. The court awarded Charlene custody of the parties’ two minor children, with reasonable visitation to Phillip. The court ordered Phillip to pay $75 support monthly for each child. Both parties remarried. Phillip visited the children regularly and paid child su...
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136 Cal.App.3d 12 (1982) 185 Cal. Rptr. 836 JOEL FORT, Plaintiff and Appellant, v. BOARD OF MEDICAL QUALITY ASSURANCE, Defendant and Respondent. Docket No. 51215. Court of Appeals of California, First District, Division One. September 22, 1982. *15 COUNSEL O'Brien & Hallisey and Robert Patrick Murphy for Plaintiff and Appellant. *16 George Deukmejian, Attorney General, and David M. Galie, Dep...
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Opinion In 1974 the City Council of the City of San Leandro (City), responding to citizen complaints, enacted an ordinance which has the effect of banning trucks over four and one-half tons from using certain streets within the city, including lower Lake Chabot Road. San Leandro Rock Company (Rock Company), which operates a quarry in Alameda County just outside the city limits of San Leandro, b...
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Opinion Plaintiff Stephen C. Forde instituted an action against the Bank of Finance (Bank) for specific performance of a contract to purchase 500,000 shares of Bank’s preferred stock, which purchase would give Forde a controlling interest in Bank. Plaintiff applied for a preliminary injunction to restrain defendant Bank from selling the stock to other prospective purchasers pending the resolution...
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Opinion This is an appeal by the People from an order of dismissal following a Penal Code section 995 motion. Defendant had been charged with embezzlement ($117,666.34) from Saint Sava Serbian Church and three counts of forgery. This appeal is limited to the dismissal of the forgery counts II, III and IV. Since one issue is as to the declared unfairness of the preliminary hearing, consideration of...
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Opinion One summer day Lloyd Laverne Walton was working outside the leather goods shop which he operates next to his home in the vicinity of Santa Rosa, California, helping a customer load leather into a van, when he saw two men whom he believed had come to conduct a drug transaction at a house down the street. The occupants of the house had moved in three months before, and “strange things rel...
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*84 Opinion By petition for writ of mandate the plaintiff in the underlying personal injury action seeks to compel respondent to allow her trial preference pursuant to Code of Civil Procedure section 36, subdivision (a). Respondent denied such preference on the ground plaintiff had obtained a preferential trial date in her prior, identical action but had relinquished it when her ...
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Opinion Petitioner, aggrieved by an order of respondent court rejecting his pleas of once in jeopardy (Pen. Code, § 1016, subd. 5) and former judgment of acquittal (Pen. Code, § 1016, subd. 4), petitioned this court for a writ of prohibition to prevent his retrial. We have concluded that petitioner is entitled to the relief requested. On April 20, 1982, trial by jury commenced against petitio...
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Opinion Statement of Facts Plaintiff and appellant Attis E. Logan (Logan) appeals from a judgment of dismissal after demurrers by defendants and respondents *121 Southern California Rapid Transit District (RTD) and United Transportation Union (UTU) were sustained. For reasons hereinafter discussed, we affirm the judgment. Procedural and Factual Background 1 On July 19, 1978, the dat...
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*133 Opinion Defendant Department of Industrial Relations, Division of Occupational Safety and Health, appeals from a judgment granting plaintiff’s (National Elevator Services, Inc., dba Republic Elevator Services, Inc.) petition for writ of mandate. The peremptory writ of mandate commands defendant “to issue annual elevator permits based on inspection reports from [plaintiff’s] ...
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Opinion The People appeal adverse rulings relating to the constitutionality of certain provisions of Los Angeles County Ordinance No. 5860 (Ordinance). The provisions of the Ordinance at issue here relate to licensing of escort bureaus. Section 533 1 mandates that “[e]very person conducting, managing or carrying on any escort bureau shall first procure a license and pay an annual license fe...
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Opinion Statement of the Case Two state parole agents, Eugene Taira, driver, and Roy Longmire, passenger, were killed when a state owned 1974 Plymouth driven by Taira collided with a vehicle being driven by one Booker Woods. There was evidence that both Taira and Longmire were under the influence of alcohol. It was established that both parole agents were, at the time of the accident on Janua...
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Opinion In plaintiff Philip B. Salin’s Code of Civil Procedure section 377 action for wrongful deaths against defendant Pacific Gas and Electric Company (PG&E), the superior court entered judgment on the pleadings in favor of PG&E as to the first and second causes of action of his second amended complaint. He has appealed from the judgment on the pleadings. As relevant to the issues ...
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Opinion Introduction Plaintiffs Berne Bush (Bush) and Thomas Farley (Farley) appeal from an order of dismissal entered after the trial court sustained the demurrer of defendant California Conservation Corps (CCC) and plaintiffs failed to amend causes of action for writ of mandate, injunctive relief, deprivation of civil rights (42 U.S.C. § 1983) and declaratory relief. Statement of Facts ...
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Opinion In this case we consider whether the statute of limitations is waived by a plea of nolo contendere. We are also called upon to decide whether the denial of pretrial diversion is reviewable on appeal after such a plea. We hold that the statute of limitations is waived by that plea when, as here, the accusatory pleading properly alleges that the statute has been tolled. We further conclud...
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Opinion In this case we consider the tort immunity of peace officers who are called upon to intervene in a dispute. Ruling that plaintiffs’ second amended complaint failed to state a cause of action, *234 the trial court sustained without leave to amend the demurrer of defendant County of Sacramento. We agree that the conduct of the officers in resolving that dispute constituted an exercise o...
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*243 Opinion Leona Moeller sued Dennis Fleming, an owner of premises at 4888 Kingbrook Drive in San Jose, for damages attributable to injuries she sustained when she fell on a city sidewalk in front of 4888 Kingbrook Drive. The trial court granted Fleming’s motion for summary judgment and Moeller appeals. We conclude that Fleming’s showing in support of his motion for summary jud...
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*258 Opinion Solano County (County) appeals from a memorandum of decision 1 granting a writ of mandate requiring the County to meet and confer with respondent Solano County Employees’ Association (Union) regarding a rule prohibiting county employees from driving motorcycles on county business. The County argues that this rule is not subject to the meet-and-confer requi...
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Opinion Plaintiff, John Kelly, appeals from the order of dismissal entered following the sustaining of demurrers of defendant, General Telephone Company, without leave to amend. On August 5, 1980, plaintiff filed a complaint containing three causes of action: slander, interference with business relations, and intentional infliction of emotional distress. An uncertainty demurrer to the cause o...
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Opinion The Pasadena Redevelopment Agency (hereafter Agency) petitioned the superior court for a writ of mandate to compel the Pooled Money Investment Board (hereafter Board) to grant it a loan from the local agency indebtedness fund to prevent a default on its downtown redevelopment project 1976 tax allocation bonds. The court ordered issuance of the writ. The Board appeals. We affirm. ...
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*298 Opinion Defendant appeals from a judgment finding him in violation of probation and the order modifying probation. Issues Presented The issues presented by this appeal are: (1) If a defendant sentenced pursuant to a plea bargain violates probation is the court still bound by the plea bargain? (2) May a court impose a jail term upon modifying probation following a violation of pro...
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Opinion Daniel S. Summers was a licensed funeral director doing business as American Funeral Concepts-American Cremation Society. The Board of Funeral Directors and Embalmers instituted disciplinary proceedings against him. Summers was charged with failure to deposit in trust proceeds from preneed funeral contracts (see Bus. & Prof. Code, § 7735) 1 and doing business as a funer...
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Opinion We review a decision of the Alcoholic Beverage Control Appeals Board (Board) which reversed a decision of the Department of Alcoholic Beverage Control (Department) denying a petition for an off-premises liquor license. King O. Taylor, Sr., doing business as Kings’ Liquor & Deli #2 (applicant), applied to the Department on January 27, 1981, for a new license for the premises at 9353 Claire...
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Opinion Petitioners Dale Sartor, Thomas Butt and John Clinton, defendants in this action, seek a writ of mandate to compel respondent court to vacate its order denying their motion for summary judgment and to enter an order granting their motion. 1 The action was commenced by real parties in interest, Edna and Kent Jeffrey, as plaintiffs, against Interactive Resources, Inc. (...
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Opinion Petitioner, defendant in an action for wrongful death based upon the negligence of an employer, seeks a writ of mandate to compel respondent court to vacate an order issued on March 23, 1982, overruling its demurrer and to enter an order dismissing the action. Petitioner contends that respondent court lacks jurisdiction over the subject matter of the action. Real parties are ...
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*350 Opinion These two petitions (consolidated for disposition) for writs of mandate arise out of Sacramento County’s (County) refusal to collect ad valorem special assessments on behalf of petitioners. For a number of years prior to July 1, 1978 (the effective date of art. XIII A of the Cal. Const.), 1 the County was required to and did collect special assessments utilized by petitioners f...
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Opinion Defendant William H. Crim III, appeals from an interlocutory judgment of partition in favor of plaintiff Butte Creek Island Ranch, a general partnership. The judgment ordered a partition of real property by sale with division of the proceeds. Defendant contends that the trial court erred in ordering the sale of the real property rather than dividing it in kind. We agree and revers...
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Opinion Plaintiff appeals the denial of his petition for a writ of mandamus (Code Civ. Proc., § 1094.5) to compel the Department of Motor Vehicles (DMV) to vacate its suspension of his driver’s license. (Veh. Code, § 13353.) 1 Section 13353, subdivision (b), mandates such suspension when a motorist lawfully arrested for driving under the influence of intoxicating liquor refuses to submit to o...
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Opinion Plaintiffs, Arzina and David Fuller (Fuller), appeal from a judgment entered in favor of defendants, Sears, Roebuck and Company and Armstrong Rubber Co. (Sears), following the granting of defendants’ motion for a nonsuit. In July 1977, the Fullers purchased a 1977 Dodge Diplomat in El Centro, California, where they reside. In June 1979, they purchased *Supp. 4two new tires from Sears, whi...
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Opinion This case involves the scope of a newsperson’s privilege not to disclose confidential sources or unpublished material. Petitioners, defendants below, seek a writ to prevent the trial court from enforcing a discovery order requiring defendants to disclose certain unpublished information. Facts Real patties in interest, plaintiffs below, are members of the Riverside Police...
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*391Opinion Respondent Sanders Construction Company, Inc. (Sanders Construction) and appellant San Joaquin First Federal Savings and Loan Association (S&L) entered into an agreement providing for the construction of a building on land belonging to Sanders Construction and the leasing of the major portion of same to S&L. S&L appeals from a judgment against it for damages and against it on its cros...
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136 Cal.App.3d 403 (1982) 186 Cal. Rptr. 283 THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ALONZO FULLER, Defendant and Appellant. Docket No. 22634. Court of Appeals of California, First District, Division One. October 8, 1982. *406 COUNSEL William M. Robinson, under appointment by the Court of Appeal, Paul W. Comiskey, and Comiskey & Robinson for Defendant and Appellant. *407 George Deukm...
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Opinion Bonus-Bilt, Inc. appeals from a summary judgment in favor of respondent United Grocers, Ltd. (United Grocers). In the underlying action, plaintiff Murphy (Murphy), an employee of United Grocers brought suit for damages arising from injuries he sustained when a loaded cart fell upon him from the tailgate apparatus of a truck being unloaded at United Grocer’s premises. Murphy’s suit...
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Opinion Appellant was found guilty by a jury of first degree murder (Pen. Code, §§ 187, 189), rape (Pen. Code, § 261) and conspiracy to commit credit card forgery (Pen. Code, §§ 182, 484f). The amended information alleged one special circumstance under the murder count—that appellant murdered his victim during the commission or attempted commission of rape (Pen. Code, § 190.2, subd. (a)(17)(iii)) ...
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Opinion Following the issuance of our opinion in this matter, both parties petitioned for rehearing. We granted same in order to consider issues raised by the parties for the first time, to reconsider our earlier opinion and to have the benefit of the brief and oral argument of new counsel representing respondent City of Fresno. After further consideration, we affirm the court below. In doing so, ...
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Opinion On April 1, 1982, petitioner filed in the California Supreme Court a petition for writ of habeas corpus seeking a total of 148 days of presentence credit. On April 22, 1982, the Supreme Court ordered the Director of Corrections to show cause before this court “. . . why petitioner should not be awarded credit pursuant to Penal Code sections 2900.5 and 4019, for the period of custody b...
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Opinion By petition for mandate filed in this court September 3, 1982, petitioners seek to vacate the trial court’s rulings of August 23 and 24, 1982, which overrule petitioner Bianchi’s claim of attorney/client privilege and clergyman/penitent privilege. The challenged orders require prosecution witness Bianchi to testify on cross-examination as to the content of confidential conversatio...
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Opinion Raphel and Bobby Etienne commenced this action after Raphel injured his arm while attempting to cut down a tree with a chainsaw supplied by defendant. The first four causes of action of the *489 complaint involve only Raphel and relate to the injuries he received in the accident. The fifth and sixth causes of action involve only plaintiff Bobby, Raphel’s alleged common law wife, who s...
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Opinion Today, we hold a felon incarcerated in a jurisdiction other than California is not denied equal protection of the law where the State of California has statutorily provided a means by which inmates confined within its own penal system may insure their physical presence at any judicial proceeding designed to sever their parental rights, without establishing a similar mechanism for those ...
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Opinion Having been charged with 18 counts of armed robbery or attempted armed robbery, Caleb McClelland pleaded guilty to six of the robbery counts (Pen. Code, § 211) and admitted he used a pistol (Pen.. Code, § 12022.5) during all six offenses. He was sentenced to prison and appeals, claiming his motion to suppress evidence (Pen. Code, § 1538.5) was erroneously denied and the calculation of h...
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Opinion These two petitions challenge the validity of the San Francisco Handgun Ordinance [or Handgun Ordinance], adopted June 28, 1982, and effective July 28, 1982. The main contention is that the State of California has passed laws (Gov. Code, § 53071 and Pen. Code, § 12026) which preempt the field. Handgun control is a volatile issue of great public importance, invoking complex policy consid...
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Opinion After jury trial, Jerome Gordon was found guilty of two counts of robbery (Pen. Code, § 211) while armed (Pen. Code, § 12022, subd. (a)), possessing concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)), and cultivating marijuana (Health & Saf. Code, § 11358). Gordon was sentenced on counts I and II to prison for the base term of five years plus one year for the use ...
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Opinion In this appeal, we are asked to decide whether access to a multiple listing service maintained by a board of realtors must be extended to members of the public. For the reasons which follow, we conclude that it is not improper to deny access to persons who are not licensed real estate brokers or sales agents. Facts Appellants are homeowners who sought to sell their home ...
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Opinion Plaintiffs Patrick E. Clancy and William Barber, dba BCW Enterprises, Inc., and David Fleischer, dba California Imports, Inc. (hereinafter referred to collectively as plaintiffs) appeal from a summary judgment in favor of defendant Consolidated Freightways, (hereinafter referred to as Consolidated). Facts The record discloses the following undisputed facts: During the summer of 1976, Clan...
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Opinion Plaintiff Insul-Acoustics, Inc., brought a complaint to foreclose a mechanic’s lien. (Civ. Code, § 3110.) The trial court granted summary judgment in favor of defendant Sung Soo Lee on the •ground that plaintiff’s claim was not timely recorded. (Civ. Code, §3116.) The pertinent facts were stipulated by the parties. Defendant Lee, doing business as Buster Brown Shoes, leased a certain ...
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Opinion This is an appeal from an order denying a motion to vacate the forfeiture of arr appeal bond and to exonerate the bond which had been posted on behalf of Uriel Oreguera Torres, who had been convicted of a violation of Health and Safety Code section 11351 and had been admitted to bail in the amount of $30,000 pending the hearing and determination of his appeal. The sole issue ...
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Opinion The City of Oakland (City) petitions this court for writ of mandate to require respondent court to reinstate a preliminary injunction dated April 17, 1980, which prohibited the Oakland Raiders (Raiders) from moving to Los Angeles. *568 Procedural Background On February 22, 1980, City commenced an action in eminent domain to acquire the property rights associated with the Raiders’ ...
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Opinion Appellant Jack Esserman (Jack) appeals from the dismissal of his order to show cause (OSC) re modification of interlocutory judgment. The trial court held that an October 14, 1959, property settlement agreement was approved and incorporated into the interlocutory judgment of divorce on December 15, 1959, (1959 agreement) and as such was binding on the parties and the trial court. The ...
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Opinion The City of Los Angeles, defendant and appellant (City), appeals from a judgment of the superior court entered in favor of plaintiff and respondent ITT Gilfillan, Inc., a corporation (ITT). Factual Summary The matter was submitted to the trial judge on a statement of stipulated facts. For each tax year 1963 through 1975, City imposed a business license tax on ITT, t...
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Opinion Plaintiff Larry A. Gigax seeks reversal of a summary judgment granted in favor of defendant Ralston Purina Company (Ralston). Gigax’s complaint sought money damages for personal injuries based on theories of products liability, negligence and wanton and reckless misconduct. Gigax was employed as a laborer for the Van Camp Seafood Company (Van Camp) in San Diego, California. While ...
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*610 Opinion Appellant, Norman W. Adam, appeals from an order made after judgment in a condemnation action apportioning the condemnation award between appellant and his ex-wife, respondent Jean Adam. Appellant claimed the entire condemnation award as owner of the condemned property, and respondent claimed an interest in the property as the beneficiary of a trust deed thereon. The...
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Opinion This is an appeal from a judgment denying appellant’s petition for a writ of mandate and request for injunctive relief and granting declaratory relief in favor of respondents. *617 Appellant, Earl Darley, by way of a taxpayer’s action, sought a declaration that two contracts executed by respondent, San Mateo County, with National Medical Enterprises, Inc. for the pro...
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Opinion T. J. Culligan, owner and developer of a tract of land in Santa Cruz, had a Mr. Kuehl build eight condominiums on that land, five of which are the subject of the instant litigation. A foreclosure resulted in the acquisition of the condominiums by the Bank of America. The condominiums were purchased from the Bank of America by appellant Western Real Estate Exchange, Inc. in late 19...
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Opinion Appellant, Intrastate Radiotelephone, Inc., (Intrastate) appeals from a judgment rendered in favor of respondent and against appellant and its codefendant, KHM. KHM has not appealed. Facts On the morning of March 9, 1976, respondent, Largey, was injured when a car driven by Mr. Robert Kranhold (Kranhold) struck respondent’s motorcycle, causing severe and permanent injuries. Kranhold...
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Opinion Defendant and appellant Mission Insurance Company (Mission) appeals from the judgment in a declaratory relief action which holds it responsible for defending Attorney Arnold S. Malter and Arnold S. Malter, a professional corporation, (Malter) in the legal malpractice suit brought by Sukut Construction, and which holds plaintiff and respondent Phoenix Insurance Company (Phoenix) no...
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Opinion Appellant J. B. Gaines, a subcontractor, sued respondent Eastern Pacific, a contractor, for breach of contract. Eastern Pacific cross-complained for damages it allegedly incurred because the subcontractor did not perform properly, and the contractor was compelled to hire *681 others to redo much of the work. The contractor was awarded judgment on the cross-complaint i...
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Opinion Plaintiffs Joseph and Eva Masin, the owners of 34 acres of land in Montecito, California (hereinafter called the Masins), appeal from a judgment in favor of defendants after a court trial on plaintiffs’ complaint to enjoin interference with an appurtenant access and utility easement claimed to burden defendants’ land. The trial court held that plaintiffs’ access easement had been termin...
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Opinion In this action for personal injuries, plaintiffs appeal from an order of dismissal following the granting of a motion for summary judgment in favor of defendant Ole’s, Inc. *700 Plaintiff Lee Munyon was severely injured when she was struck by a vehicle operated by defendant Patricia Ann Edwards on November 30, 1979. Plaintiff and her parents, who are coplaintiffs, jo...
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Opinion The paternal grandparents appeal from an order terminating their guardianship over the minor child and restoring custody of the child to the natural parents. *710The minor, M. S. W. (hereinafter the child), was born to respondents (hereinafter parents) L. M. W. (hereinafter father) and C. L. W. (hereinafter mother) on December 22, 1977. After the birth of the child, parents, who had been l...
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Opinion Appellant Delbert Donnell Levingston, aka Wilbert Bellinger, appeals from a conviction of grand theft (Pen. Code, § 487, subd. 1) contending that (1) the trial court committed prejudicial error in refusing to give a jury instruction relating to his identification, and (2) that the court abused its discretion and violated the principle of individualized sentencing by punishing appellant for...
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Opinion The trial court found that appellant Richard W., a minor, had committed burglary (Pen. Code, § 459), and adjudged him a ward of the juvenile court (Welf. & Inst. Code, § 602). Richard’s sole contention on appeal is that the evidence was insufficient to sustain the finding because the witness’ extrajudicial identification was not confirmed at the adjudication hearing. Facts ...
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*746 Opinion Convicted of robbery (Pen. Code, § 211), defendant appeals from the judgment contending the trial court erred in denying presentence credit for time spent in federal penitentiary. An understanding of the single issue in dispute requires a brief chronological summary of the relevant events. On March 5, 1980, defendant, then on federal parole, was arrested on the instant robber...
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Opinion Appellant Robert Shahin (Shahin) and respondent James Wawro (Wawro) were, from January 1974, until January 1981, engaged jointly in the practice of law by means of a law corporation, Shahin & Wawro, in which each was a director, a 50 percent shareholder and an employee. During the latter month Wawro informed Shahin Wawro would as of February 1, 1981, no longer be employed by the c...
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Opinion Plaintiff appeals from an order of dismissal entered after a demurrer to its first amended complaint was sustained without leave to amend. We affirm the order as to two causes of action and reverse it as to two others. Plaintiff is the owner of a tract of land in defendant city, devoted to use as a recreational area. The city desires, as part of a redevelopment plan, to convert that a...
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Opinion Appellant Debra Karen Boyd sought to recover damages under the uninsured motorist provision of her automobile policy issued to her by respondent Interinsurance Exchange of the Automobile Club of Southern California. She was injured when she crashed into a building after swerving to avoid being hit by an “uninsured motor vehicle.” After submission of the matter to arbitration, appellant’...
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Opinion Appellants Irwin Zeavin, M.D., and Friedrich K. Kaspar, M.D., appeal “from the Order of the Court . . . dated December *768 19, 1980, sustaining the Demurrer of defendant George S. Lee to the complaint, and the Entry of Judgment thereon, consisting of the Order of Dismissal Without Leave to Amend, entered and filed on the tenth day of January 1981." 1 The a...
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Opinion Currie Medical Specialties, Inc. sued Newell Bowen for breach of contract, fraud, negligent misrepresentation, intentional interference with prospective business advantage and unfair competition. Bowen’s motion for summary judgment based on Currie’s failure to comply with Code of Civil Procedure section 426.30 was granted. Currie appeals the judgment. *776 This is th...
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136 Cal.App.3d 779 (1982) 186 Cal. Rptr. 458 THE PEOPLE, Plaintiff and Respondent, v. KENNETH WILLIAM CHALLONER, Defendant and Appellant. Docket No. 41042. Court of Appeals of California, Second District, Division One. October 21, 1982. *780 COUNSEL Steven Zwick for Defendant and Appellant. George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, S. Clark Moor...
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Opinion Defendant Dio Dix, Inc. appeals from an order of the Superior Court of Los Angeles County denying a motion to set aside a judgment in favor of plaintiff Fox Industrial Realty and based upon an arbitration award pursuant to Code of Civil Procedure section 1141.10 et seq., and California Rules of Court, rule 1600 et seq. Plaintiff commenced an action to recover a $15,000 commission on t...
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Opinion Various corporate and individual appellants have appealed from the denial of their petition for writ of mandate to review a decision of the Department of Consumer Affairs on an accusation by the Bureau of Collection and Investigative Services (hereafter the Bureau), finding violations of various sections of the Business and Professions Code. Procedural Facts In 1976, Douglas Faigin, chief...
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Opinion This proceeding in mandate was initiated by a plaintiff in a personal injury action seeking to compel the trial court to enter an interlocutory judgment on certain special verdicts finding defendants derivatively liable by reason of their ratification of intentional torts committed by their agents, despite the fact a mistrial had been declared because the jury poll revealed incons...
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*819 Opinion Defendants, State Personnel Board and California Highway Patrol (CHP), appeal from a judgment ordering the issuance of a peremptory writ of mandate and remanding the case back to the State Personnel Board for the sole purpose of reconsidering the penalty of dismissal. Plaintiff Louis Fout has been employed by the California Highway Patrol as a state traffic officer since 1966. ...
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*825 Opinion On May 2, 1977, appellant Carol Buell (Buell) filed a complaint against respondent CBS, Inc. (CBS), alleging that CBS’ negligence caused her to injure herself on CBS’ property. Buell did not, however, serve the complaint on CBS. On June 16, 1977, Argonaut Insurance Company (Argonaut), the workers’ compensation carrier of Buell’s employer, intervened in the Buell-CBS ...
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Opinion Section 24756 of the Business and Professions Code (to which all section references apply unless otherwise noted) requires *832 every manufacturer, rectifier and wholesaler of distilled spirits to file and maintain with the Department of Alcoholic Beverage Control (Department) a written price list reflecting sales prices to retailers and to sell to retailers in compli...
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Opinion Andrew Gordon Crowder appeals from the entry of a judgment of conviction after a jury found him guilty of forgery of a prescription (Bus. & Prof. Code, § 4390) and possession of codeine (Health & Saf. Code, § 11377, subd. (a)). Before trial he admitted that he had served a prison term within the meaning of Penal Code section 667.5, subdivision (b). 1 We affirm. ...
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*853 Opinion We are called upon to decide whether a defendant who committed a crime before the repeal of the mentally disordered sex offender (MDSO) statutes may be denied the benefits of the repealed law without infringing the constitutional proscription against ex post facto legislation. We hold that such a denial does not violate that proscription. In 1981 petitioner Fred...
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*863 Opinion We issued an alternative writ of prohibition to consider whether the trial court exceeded its jurisdiction in setting a separate trial to determine whether the statute of limitations contained in Code of Civil Procedure section 340.5 or that in Civil Code section 29 controls a minor’s cause of action fof injuries allegedly caused by medical malpractice before or during birth. Whi...
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*872 Opinion Statement of the Case/Statement of Facts This case involves the application of Government Code section 4205 which prohibits further bidding on a public construction project by a bidder who has claimed a mistake in his bid. In March 1976 respondent Panama Union School District (hereinafter District) began planning the Louise Sandrini Elementary School projec...
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*885 Opinion In 5 Civil No. 5605, Modesto City Schools District (District) appeals from the court’s denial of injunctive relief against the Modesto Teachers’ Association (Association) during a time when the Association was engaged in a strike against the District. In 5 Civil No. 5603, the District appeals from the issuance of an injunction on behalf of the Public Employment Relat...
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*910 Opinion I Statement of Facts and Procedural History This is the second appeal in this case. Since the record in this appeal only covers the period since the first appeal, some of the facts and procedural history are quoted from Justice Sims’ opinion in Eldridge v. Burns (1978) 76 Cal.App.3d 396 [142 Cal.Rptr. 845] (Racanelli, P. J. and Elkingt...
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*928 Opinion This action for libel was brought by plaintiff George Gomes (Gomes), a San Leandro police officer, on the basis of an article written by appellant Ad Fried, the editor of The Friday Observer (Observer), a weekly newspaper, published by Ad’s son, appellant Michael Fried, doing business as appellant the Observer Publishing Company (collectively Frieds). After a six-day...
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136 Cal.App.3d 992 (1982) 186 Cal. Rptr. 676 THE PEOPLE, Plaintiff and Appellant, v. ALDON RAY NEWSOME, Defendant and Respondent. Docket No. 20912. Court of Appeals of California, First District, Division Four. October 26, 1982. *995 COUNSEL George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, William D. Stein...
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Opinion This is an appeal from the March 19, 1980, order dismissing the action as to defendants James E. Hummel, Robert W. Nowack, and Nowack & Hummel (respondents). 1 The order followed the sustaining of said defendants’ demurrer, without leave to amend, to the second amended complaint for legal malpractice. Facts Plaintiffs Grover Cleveland Bell (appellant) and Pear...
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Opinion Harley A. Hartman (Harley) the trustee of the George L. Hartman Trust, appeals from the judgment entered on Eugene M. Hoover’s (Eugene) petition for instructions (Prob. Code, § 11381, subd. (a)(4)) requiring the estate and inheritance taxes due upon the death of George L. Hartman (George) to be apportioned among the beneficiaries entitled to receive assets from George’s taxable estate i...
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Opinion The Board of Administration (the Board) of the Public Employees Retirement System (PERS) appeals from a judgment mandating PERS to award death benefits to the beneficiaries designated by the deceased employee, Bernice A. Barstow, before her death. The sole question presented is whether under the circumstances presented a beneficiary designated by a deceased employee is entitled to death...
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*1039 Opinion Plaintiff appeals from the grant of summary judgment in this action based on plaintiff’s insurer’s alleged bad faith in refusing a claim. We conclude there was no triable issue of fact for resolution by the trial court and will therefore affirm. Facts While she was single, plaintiff purchased an automobile which she registered in her name and obtained a comprehensive autom...
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Opinion Statement of Facts On May 22, 1978, petitioner injured his lower back while at work. At that time, he was working for N & J Water Truck Company. In 1979, petitioner went to work for Bigge Drayage Company (Bigge). On July 10, 1979, he sustained an injury arising out of and occurring in the course of his employment. He was off work for about five weeks thereafter and recei...
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*1053 Opinion Wallace Shepherd brought this action for damages under the federal Civil Rights Act of 1871 (42 U.S.C. §§ 1983, 1985(3) 1 ) against respondents, citizen members of the Board of Commissioners of the Marin County Housing Authority (Housing Authority). He claimed that his discharge from his position as executive director of the Housing Authority without firs...
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Opinion Irving Moskowitz petitioned this court for a writ of mandate directing respondent superior court to vacate its order denying petitioner’s motion for a protective order limiting the use of his deposition, and to enter an order granting appropriate protection. We initially denied the petition but, on petitioner’s application, the Supreme Court granted a hearing and retransferred the...
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*322 Opinion The basic issue presented by this appeal is whether employees who serve the superior court in Santa Clara County are employees of the court or of the county. The Service Employees International Union, Local 715, AFL-CIO (union or petitioner) petitions this court for a writ of mandate requiring the Superior Court for the County of Santa Clara and its clerk, John Kazubowski (resp...
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Opinion Plaintiffs, trustees, appeal from a summary judgment based on a ruling that the statute of limitations had run on their attorney malpractice action. Defendants have filed a purported protective cross-appeal from the denial of their motion for summary judgment on the grounds that plaintiffs no longer had standing to bring suit on behalf of the trust. Plaintiffs Howard Gurkewit...
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Opinion In 2 consolidated informations appellant was charged in 25 counts; 24 of the counts involved sexual crimes and attempts against children, under Penal Code sections 288, subdivisions (a) and (b), 647a, and 664. One count involved attempted escape from the county jail. (Pen Code, § 4532, subd. (b).) Appellant pleaded nolo contendere to 10 of the charges: 2 counts of lewd acts on children un...
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Opinion Defendant Jerald Abbot Adams was charged with assault with intent to commit murder (Pen. Code, § 217) and discharge of a firearm at an occupied building (Pen. Code, § 246). After opening statements at the commencement of the original trial, the court granted Adams’ motion for mistrial on the ground the district attorney had not previously given Adams’ counsel discovery of tapes and othe...
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Opinion Having waived a jury trial and by stipulation submitted the cause on the transcript of the testimony taken at the preliminary hearing, defendant was found guilty of child stealing in violation of section 278.5, subdivision (a), Penal Code, as charged in the information. He appeals from the judgment. Robert was born to Donna Cain and defendant on August 31, 1979; they lived together un...
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Opinion Plaintiffs Susan Erzinger et al., appeal a judgment favoring the Regents of the University of California (University) on the plaintiffs’ third amended complaint. The plaintiffs’ third amended complaint alleges: Plaintiffs are students at the University; the University collects a registration fee from all students; the registration fee is used to provide health services to students at ...
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Opinion Mark Albert McElheny appeals his jury-tried conviction and sentence to prison for robbery and burglary, both with personal use of a firearm (Pen. Code, §§211, 459 and 12022.5), 1 and for assault on a peace officer and assault with a deadly weapon, both while armed with a firearm (§§ 245, subd. (b), 245, subd. (a), and 12022, subd. (a)). On July 17, 1980, McElheny and his accomplice,...
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Opinion Convicted of one count of burglary (Pen. Code, § 459) by guilty plea, defendant Victor L. DePaul was granted probation for a period of two years. More than two years later probation was revoked and defendant was sentenced to state prison. He appeals from the judgment. At issue is the meaning of a statutory provision that revocation, “summary or otherwise, shall serve to toll the runni...
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Opinion Plaintiff is the owner of a small lot in the City of Pasadena. Because of its shape and size, the lot, under the applicable zoning ordinance, is not available for the construction of the residence plaintiff desires to build on it. He applied for a zone variance, which was denied by the local agency and, on appeal, by the city council. He then brought a proceeding in administrative manda...
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Opinion Defendant pled guilty to cultivation of marijuana (Health & Saf. Code, § 11358) following a denial of his request for diversion. The denial was based upon the district attorney’s determination that the amount cultivated was not for “personal use,” a condition of eligibility for diversion (Pen. Code, § 1000). Defendant appeals upon a certificate of probable cause (People ...
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Opinion Plaintiff Richard H. Perley appeals from the denial of his petition for a writ of mandate directing respondent Board of Supervisors of Calaveras County (board) to vacate its decisions approving a conditional use permit and a reclamation plan for a proposed mining project of real party Western Source, Inc. (WSI), and to enjoin further action on the project by the county or the deve...
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Opinion In this action for the refund of sales tax paid under protest (Rev. & Tax. Code, § 6933), 1 the plaintiff-taxpayers (plaintiffs) claim the State Board of Equalization (the Board) erroneously assessed and collected certain sales taxes. This claim was rejected in a trial by the court and judgment was entered for defendant. Plaintiffs appeal, contending: (1) they prov...
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Opinion Petitioners Sacramento County and its sheriff are defendants in an action pending in the respondent superior court. In this writ proceeding, they seek mandate to secure a protective order limiting discovery and to vacate a trial court stay of enforcement of an ordinance. A writ of mandate will issue directing the granting of a protective order. The pending action in respondent court tende...
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Opinion This appeal has its basis in the tragic fire which swept through the MGM Grand Hotel in Las Vegas injuring a large number of hotel guests and employees. Plaintiffs Billy J. and Patricia Ann Dendy were guests at the hotel at the time of the fire and brought suit in California to recover for personal injuries and other damages allegedly resulting from the blaze. Two *460 of the defendan...
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Opinion Javier C. Macias appeals his judgment of conviction for attempted murder (Pen. Code, §§ 187, 664),1 possessing a knife in an honor camp (§ 4574), escape from an honor camp (§ 4532, subd. (a)), and findings he per*469sonally inflicted great bodily injury (§ 12022.7) and used a dangerous or deadly weapon (§ 12022, subd. (b)) while committing the attempted murder and escape. He incorrectly co...
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Opinion This appeal is from a judgment of the superior court denying Carlos Ayala’s petition for writ of prohibition. *486The petition sought to prohibit the Ventura County Municipal Court, and particularly Judge Frederick Jones, from taking further action on Ayala’s case. The petition alleged as follows: On April 4, 1980, Ayala appeared in Judge Jones’ courtroom and pleaded nolo contendere to a c...
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Opinion Dr. Larry R. Bartschi (plaintiff) sued defendants Chico Community Memorial Hospital (Chico), N.T. Enloe Memorial Hospital (Enloe), and Feather River Hospital (Feather River) alleging his wrongful removal from their medical staffs. He appeals various orders and a judgment which (1) denied him discovery against Chico and Enloe, (2) granted summary judgment to Feather River because o...
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Opinion Background This is an appeal from a judgment entered on May 19, 1981, in favor of respondent the City of Los Angeles (hereinafter City) in an action for personal injuries instituted by appellant Wakking L. Lewis, a minor, by and through his guardian ad litem, Margie Lewis. On November 8, 1975, appellant was struck and seriously injured by a motorist while he was crossing the interse...
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Opinion Plaintiff brought a class action on behalf of the holders of unsecured debentures issued by Metro-Goldwyn-Mayer, Inc. (MGM), the predecessor of defendants MGM Grand Hotels, Inc. (Hotels) and Metro-Goldwyn-Mayer Film Company (Film Co.). In 1980, several years after the debentures were issued, MGM decided to divide its business into two separate corporations—one to operate the hotel busin...
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*534 Opinion Charles Anthony Parrison appeals the judgment entered on the jury verdict convicting him of attempted murder (Pen. Code, §§ 664 and 187) 1 with personal use of a firearm (§ 12022.5) and with being an ex-felon in possession of a firearm (§ 12021). We reject his several contentions pertaining to pretrial, trial, and posttrial error and affirm the judgment. Factual and Procedur...
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137 Cal.App.3d 542 (1982) 187 Cal. Rptr. 130 THE PEOPLE, Plaintiff and Respondent, v. JORGE GUTIERREZ, Defendant and Appellant Docket No. 13993. Court of Appeals of California, Fourth District, Division One. November 19, 1982. *543 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Gabriel C. Vivas, Deputy State Public Defender, for Defendant and Appellant. ...
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Opinion In these original proceedings, we are asked to pass upon the propriety of a protective order which prevents defendant fire insurance company from taking plaintiff insured’s deposition in an action the insured brought on the policy. The trial court, under the guise of upholding plaintiffs constitutional privilege against self-incrimination, imposed such an order, effective until cr...
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Opinion Petitioner seeks writ of mandate compelling the trial court to grant petitioner’s request for a writ of possession to recover telephone equipment leased to real party in interest. Real party’s only defense to the claim of possession is that the equipment was defective. We conclude that real party’s alleged right to damages based upon the defects is independent of petitioner’s right to poss...
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Opinion Both of the above appeals are from portions of an order of the superior court with respect to costs on a prior appeal in plaintiff’s action seeking a declaration of the parties’ rights, rescission, and restitution with respect to a complex real estate transaction wherein plaintiff was seller and lender, and defendants were buyer and borrower. The former appeal was from a judgment ...
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Opinion This is a consolidated appeal from the judgment of conviction of second degree burglary and motion for new trial pursuant to Penal Code *24 section 1181, subdivision 9. At issue is whether a defendant who flees the jurisdiction following a guilty verdict and is not apprehended and sentenced until after the destruction of the court reporter’s notes must be granted a ne...
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*36 Opinion The county-auditor (Bloodgood) appeals from a judgment in favor of plaintiffs, respondents and cross-appellants—each of the 24 separate municipal court districts in Los Angeles County—and against defendant, appellant, and cross-respondent Mark Bloodgood, Auditor Controller of the County of Los Angeles. The court below found that respondents properly hired indepen...
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*58 Opinion Introduction Petitioner appeals from a judgment denying a petition for writ of mandamus and/or prohibition and/or administrative mandamus. Statement of Facts Petitioners are the owners and operators of the Starwood nightclub, located within the County of Los Angeles, operating and maintaining a building and premises in which food, beverages and entertai...
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Opinion Introduction Petitioner Geraldine A. Adkins appeals from an order vacating and annulling final and interlocutory judgments of dissolution of marriage, and rescinding *72 and cancelling a written marital settlement agreement executed on July 22, 1980. Procedural Background On September 3, 1980, petitioner filed for dissolution of the parties’ marriage, alleging that all of the as...
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Opinion This is an appeal from a judgment after granting of motion of respondent City of Los Angeles (City) for summary judgment under Code of Civil Procedure section 437c. Appellant, Bunker Hill Associates (Bunker Hill), filed a class action suit challenging á tax on tenants under article 1.3 of the Los Angeles Municipal Code.1 *82City noticed a motion for summary judgment, whereupon Bunker Hill...
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Opinion The People, pursuant to Penal Code section 1538.5, subdivision (o), seek a writ of mandate directing respondent superior court to vacate an order suppressing statements made by real party and photographs *92 taken of him while he was in police custody. We issued an alternative writ and set the matter for hearing. We have concluded that the People are entitled to the writ they seek. ...
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Opinion Plaintiff Bos Material Handling, Inc., filed causes of action against defendant Crown Controls Corporation and others after Crown refused to renew its year-to-year dealer agreement with Bos. Crown petitioned *104 the court to stay the trial proceedings and to compel arbitration pursuant to an arbitration clause in the dealer agreement. The petition was denied on the g...
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Opinion On February 17, 1981, appellant David Eugene Gonzales was arrested for suspected violation of Vehicle Code section 23102, subdivision (a), driving an automobile while under the influence of intoxicating liquor. Pursuant to his arrest, and in accordance with Vehicle Code section 13353, the arresting officer asked appellant to submit to a chemical test for the purpose of determining his b...
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Opinion On December 16, 1981, we filed our opinion in this matter, a copy of which is appended hereto. Subsequently the Supreme Court granted a *122 hearing. Thereafter two events transpired. (1) The Supreme Court filed its opinion in the case of In re Marriage of Flaherty (1982) 31 Cal.3d 637 [183 Cal.Rptr. 508, 646 P.2d 179], and (2) the Supreme Court retransfered this case to this court ...
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*134 Opinion Lori Wilson appeals a judgment and order for conservatorship after a jury found her gravely disabled (Welf & Inst. Code § 5350). Lori was 23 years old at the time of trial. She had a six-year history of psychiatric problems, and had been hospitalized several times for treatment of her mental illness. Lori’s symptoms include sleepless nights, high energy levels, ...
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Opinion The People appeal a judgment following a directed verdict entered in favor of defendant Forest E. Olson, Inc. (FEO) in a civil case. During 1974 and 1975, FEO published newspaper advertisements listing a total of 926 addresses. The ads said the addresses were of homes in Orange and Riverside Counties which FEO had sold within four or eight days. The addresses were compiled by FEO’s co...
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Opinion We granted an alternative writ of mandate in the present case to reconsider a line of California authority upholding prepayment fees on secured real property loans against the challenge such penalties are unreasonable restraints on alienation in light of the California Supreme Court’s decision in Wellenkamp v. Bank of America (1978) 21 Cal.3d 943 [148 Cal.Rpt...
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Opinion The parents of Ann S., aged 13, have appealed from orders of the juvenile court taking her physical custody from them, as a result of charges and evidence that (1) the father had brutally beaten the minor, and (2) that her mother had failed to protect the minor from the physical abuse of the father. At the end of a somewhat lengthy juvenile court hearing, and before any order wa...
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137 Cal.App.3d 152 (1982) 186 Cal. Rptr. 833 LOUISIANA-PACIFIC CORPORATION, Plaintiff and Appellant, v. HUMBOLDT BAY MUNICIPAL WATER DISTRICT et al., Defendants and Respondents. CROWN SIMPSON CORPORATION, Plaintiff and Appellant, v. HUMBOLDT BAY MUNICIPAL WATER DISTRICT et al., Defendants and Respondents. Docket No. 46245. Court of Appeals of California, First District, Division Two. November 2, ...
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Opinion Jesse F. appeals from an order of the San Joaquin County Juvenile Court committing him to the California Youth Authority (CYA) and fixing his maximum period of confinement at 14 years. The order came after the Los Angeles County Juvenile Court sustained a petition (Welf. & Inst. Code, § 602) charging him with five counts: count I, attempted robbery (Pen. Code, §§ 211, 213) while p...
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Opinion Chadwick C., a 14-year-old minor, appeals from a judgment and dispositional order committing him to the California Youth Authority. His rather significant delinquent background will be discussed later. Our overriding issue is a “procedural one” in that appellant’s counsel seeks to expand the review beyond that stated in the notice of appeal which was simply: “Abuse of discretion by Ju...
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Opinion This is a consolidated appeal in which plaintiff City of Watsonville (City) appeals from adverse judgments rendered in favor of the respective respondents. The essential facts leading to the present appeals may be summarized as follows. On February 26, 1949, the City entered into a contract with the State Employees Retirement System (now the Public Employees Retirement S...
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Opinion Plaintiffs Susan A. Pappert and her minor children, Michael D. Pappert, Julie M. Pappert and Mark C. Pappert, appeal, from the judgment entered on the jury verdict in favor of defendant San Diego Gas & Electric Company (SDG&E) in their wrongful death action arising from the electrocution of Charles Pappert while attempting to trim a tree close to SDG&E’s uninsulated 12,000-volt po...
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Opinion Debra Silva sued Michael Weiss to establish him as the father of her child, for child support and for attorney fees. An order to show cause was filed for child support, attorney fees and court costs during pendency of the action. A temporary order provided for Weiss to pay Silva’s attorney fees to date as “additional child support.” Later a jury found Weiss was the father. Silva then appli...
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Opinion This litigation arises out of property damage caused by a 1974 landslide in Santa Cruz. The. trial court, sitting by stipulation without a *220 jury, found that Sundean, the original developer of the lots, was guilty of wilful misconduct in placing poor quality fill upon the hillside lots without proper compacting and engineering and of fraudulent concealment in faili...
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*230 Opinion We issued an alternative writ in this matter to determine whether, under the facts of this case, the trial court could have dismissed a petition filed against petitioner under Welfare and Institutions Code section 602, with prejudice to its being refiled. We have determined that petitioner’s right to a speedy trial was not violated. Further, such a dismissal would no...
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Opinion By petition for mandate a West German national corporation, Pierburg GmbH Co. KG (hereafter Pierburg), which is a defendant in the underlying personal injury products liability action in respondent court, seeks to vacate respondent’s order of June 9, 1982, that requires Pierburg to answer written interrogatories served upon it by plaintiffs (real parties in interest) without compliance ...
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*273 Opinion Jose R. appeals from an order of the juvenile court declaring him a ward of the court, pursuant to section 602 of the Welfare and Institutions Code, placing him in the Joan Green Group Home and imposing certain conditions of probation to be in effect during the minor’s placement and upon return to the home of his parents. The trial court’s order was based upon a find...
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Opinion The State of California, through the Department of Rehabilitation, and the Attorney General of the State of California seek a writ directing respondent court to grant a motion by petitioners for judgment on the pleadings. We grant the writ. Keith Kellum, a physically handicapped person, sued the Silver Dragon Restaurant, Inc., alleging failure to provide at a place of public accommodation...
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Opinion Jane Behrens (Wife) petitioned for dissolution of her 29-year marriage to Edwin H. Behrens (Husband). There were no minor children, and *568 the issue of dissolution itself was ultimately bifurcated and adjudicated without appeal. The other issues at trial were spousal support, property characterization and division, and attorney fees and costs. From the judgment purp...
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Opinion Appellants Henry Ray Masten and Freddie James Matilton were each charged by information with one count of kidnaping, rape, oral copulation, and two counts of assault with a deadly weapon. (Pen. Code, §§ 207, 261; 288a, subd. (c); 245, subd. (a).) Each count alleged that Matilton used and Masten was armed with a firearm. (Pen. Code, §§ 12022.5; 12022, subd. (a).) Appellant Matilton ple...
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Opinion Defendant and appellant Joanne K. Harrold, after she was elected a Judge of the Municipal Court, West Orange County Judicial District, in the June 1982 Primary Election, became the target of two election contests filed in Orange County Superior Court. These actions were consolidated for all purposes. After trial, the judgment entered ruled in favor of the contestants. It annulled the de...
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Opinion Plaintiff Erwin Karz (hereinafter Karz) appeals from a judgment that he “shall take nothing” from defendants Harry Karl (hereinafter Karl), Debbie Reynolds (aka Mary Frances Karl, hereinafter Reynolds) and Raymax Productions, Inc. (hereinafter Raymax) in Karz’ action for damages for breach of contract, fraud and conversion. The judgment was rendered in a trial department when Karz advis...
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Opinion This petition by an employer challenges a decision by the Workers’ Compensation Appeals Board (hereafter Board) that the applicant was entitled to rehabilitation benefits. The issue raised is whether the Board erred in its ruling that the application was not barred by the statute of limitations. Novel and important questions concerning application of Labor Code sections 3207, 5404...
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Opinion This is an appeal from judgment following an order granting summary judgment for defendant on the grounds of lack of jurisdiction of the superior court. *677 Facts The record is somewhat confusing because only the answer to the original complaint is present, whereas the operative complaint in this record is the second amended complaint. Not only is the record la...
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Opinion Appellants Joseph Westrick and his son Vincent appeal from a directed verdict in favor of Doug Crawford, Joseph Westrick’s insurance agent, and State Farm Insurance (State Farm), his insurance company. In their complaint, appellants claimed that Jim Crawford, Doug Crawford’s father and also a State Farm agent, negligently failed to inform Joseph Westrick that a welding truck ...
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Opinion Facts After pleading guilty to possession of amphetamines (Health & Saf. Code, § 11378) pursuant to a stipulation that his sentence would run concurrent with any sentence imposed on another felony case, Richard Milton Hankins was referred for a narcotics evaluation under Welfare and Institutions Code section *696 3051. After spending 175 days at the California Re...
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Opinion A jury convicted Thomas Joseph Tucciarone of attempted murder with a knife causing great bodily injury (Pen. Code, 1 §§ 664/187, 12022, subd. (b), 12022.7), assault with a deadly weapon causing great bodily injury (§§ 245, subd. (a), 12022.7), mayhem (§ 203), exhibiting a deadly weapon in a threatening manner (§ 417), and assault with a deadly weapon (§ 245, subd. (a)). He was sentenc...
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Opinion Respondents brought an action against appellants for 1) “Interference with Advantageous Business and Contractual Relations,” and 2) violatiohs of the Cartwright Act (Bus. & Prof. Code, § 16700 et seq.). The tort action was abandoned after the trial court’s ruling that the damages sought by it were de minimis. The Cartwright Act antitrust case proceeded to jury trial, af...
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Opinion This appeal arises against the following background: Under the provisions of the Penal Code (to which all statutory references apply unless otherwise noted) the Director of Corrections (Director), as manager of the state prison system, is charged with the responsibility for the “care, custody, treatment, training, discipline and employment” of all prisoners (§ 5054). Upon arrival ...
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Opinion The department of Motor Vehicles (hereafter DMV) appeals from a judgment of the Superior Court of Monterey County granting a peremptory writ of mandate to vacate an order suspending respondent’s driver’s license. 1 Respondent has not filed a brief. We have concluded that the order of *740 the DMV was correct and that the judgment of the superior court should be reversed. At the ad...
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*753 Opinion National Coach Corporation is a disappointed low bidder on a state contract to provide buses. National’s bid was rejected for deviating from the contract specifications. National filed a protest (see Gov. Code, § 14813) with the State Board of Control that was rejected after hearing. National then filed a petition for review of the board decision in administrative ma...
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Opinion This appeal is from a judgment awarding plaintiff $10,000 in compensatory damages in his action for retaliatory eviction. The facts, stated in the light most favorable to the prevailing party, are as follows. In late December 1973, plaintiff Fritz Glaser and his wife, a retired couple, purchased a mobilehome and rented a space in Brookwood Mobile Home Park, owned by defendants Lewis M...
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Opinion The Governor and the Controller petition for a writ of mandate to compel the respondent superior court to vacate its order to show cause and its temporary restraining order enjoining the petitioners from implementing 1981 legislation that created 18 new Court of Appeal judgeships. (Stats. 1981, ch. 959; Gov. Code, §§ 69100-69102, 69104-69106.) The primary issue is whether two members (a...
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Opinion Frank Malynn appeals from a judgment of the Santa Clara County Superior Court denying his petition for a writ of mandate to compel the Morgan Hill Unified School District (District), and its superintendent, Robert B. Stannard, to rescind their assignment of him to Britton Middle School, and to reinstate him as a teacher at Live Oak High School. We affirm. Facts Appellant Frank M...
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*809 Opinion Appellant, Evelle J. Younger, appeals from a summary judgment in favor of respondents, State of California, the Board of Administration of the Public Employees’ Retirement System, and Carl J. Blechinger, executive officer, and against appellant on his petition for writ of mandate or certiorari, and for declaratory relief. Appellant served two 4-year terms as Attorney General of...
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*817 Opinion Plaintiff Ralph L. Collin (Collin) appeals from a judgment entered April 28, 1980, 1 in favor of Connecticut Valley Arms, Inc. (CVA) after jury trial verdict for CVA. We reverse on the basis that no verdict was reached, inasmuch as only seven jurors agreed in the special verdict that while CVA was negligent, its negligence was not a proximate cause of injury to plaintiff. (Se...
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*826 Opinion Respondent was charged with constructive possession of phenycyclidine (PCP) (Health & Saf. Code, § 11378.5).The charge was based upon the discovery of a quantity of PCP upon premises occupied by the defendant. The discovery occurred during a police search conducted pursuant to a warrant issued on the basis of information supplied by a police informant. This appeal by...
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Opinion Defendant, James Alvin Welch, was charged with murder (Pen. Code, § 187) and use of a firearm in the commission of the offense (Pen. Code, §§ 12022.5, 1203.06, subd. (a)(1)). His first jury trial ended in a mistrial. After a second jury trial, he was convicted of voluntary manslaughter (Pen. Code, § 192, subd. 1), a lesser and necessarily included offense of the murder charge. Defendant...
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Opinion The facts pertinent to our disposition herein are not in dispute and may be summarized briefly as follows. In July of 1977, respondent Georgina Zapata applied for benefits under the aid to families with dependent children (AFDC) welfare program. (Tit. IV-A of the Social Security Act of 1935, 42 U.S.C. § 601 et seq. (the Act).) That application was denied by the Los Angeles County Departme...
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Opinion Defendant Carl Campbell contends on appeal that his prosecution for three narcotic offenses 1 was barred by the statutory grant of “transactional immunity” conferred by Penal Code section 1324 when it was invoked by the district attorney to compel his testimony in another felony case. The People contend defendant was given a constitutionally adequate substitute of “use ...
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Opinion A jury found Mendonsa guilty of three counts of discharging a firearm into an occupied dwelling. (Pen. Code, § 246.) He has appealed from a judgment under which he was sentenced to state prison, which was rendered upon the jury’s verdicts. His contentions of error may reasonably be narrowed to three: (1) that the evidence was not sufficient to support the jury’s verdicts, (2) that h...
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Opinion Defendant Sequeira was convicted of 11 counts of robbery (Pen. Code, § 211), and 17 counts of false imprisonment effected by violence (Pen. Code, §§ 236,237). As to most if not all of the offenses, he was found to have used a firearm in their commission. (Pen. Code, § 12022.5.) He was also convicted of possession of a concealable firearm by one previously convicted of a felony. (P...
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Opinion The decedent, John Baptist, died at the age of 77 of acute pneumonia. Petitioner, his widow, claimed that her husband’s death was proximately caused by on-the-job exposure to respirable asbestos, while working as a machine-tender and shingle-maker from 1936 to 1965. *905 At the compensation hearing, Dr. Bristow expressed his conclusion that the pneumonia was “entirely related” to de...
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Opinion Plaintiff appeals from a judgment of nonsuit in a medical malpractice action arising out of surgery performed by defendant on plaintiff. Facts Plaintiff, Joni Hale, had a history of her left knee slipping out of joint since 1968. Her care was ultimately taken over by defendant, Dr. Ralph J. Venuto, an orthopedic surgeon who recommended corrective surgery after plaintiff suf *915 f...
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Opinion Neil Warren Skenandore and Pierre Adair Parent appeal after they were each convicted by a jury of two counts of attempted murder (Pen. Code, §§ 664, 187), three counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)), one count of receiving stolen property (Pen. Code, § 496), and one count of possession of a concealable firearm by an ex-felon (Pen. Code, § 12021). The jury ...
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Opinion TROTTER, J. Plaintiffs C-Y Development Company (C-Y) and Henry and Gloria Lopez (Lopez) petitioned the superior court for a writ of mandate to require the City of Redlands to issue a building permit to Lopez. The trial court denied the petition and plaintiffs appeal. Facts In 1978, the voters of Redlands adopted Proposition R, an initiative measure. Proposition R restricted develo...
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Opinion Statement of the Case On June 26, 1981, appellant pled guilty to assault with a deadly weapon (Pen. Code, § 245, subd. (a)) and admitted the enhancement of intentional infliction of great bodily injury in the commission of a felony (Pen. Code, § 12022.7). Appellant was 19 at the time that he committed the assault. A hearing was held to consider the probation report and recomm...
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Opinion Petitioner Burlington Northern Railroad Company is the defendant below in a personal injury action brought by lames R. Noyes, a Burlington employee who was injured while off-duty but in the course of his employment. Petitioner seeks a peremptory writ of mandate or prohibition directing the court below to vacate its decision finding the settlement between Burlington and Noyes was n...
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137 Cal.App.3d 948 (1982) 187 Cal. Rptr. 493 SAN JOSE COUNTRY CLUB APARTMENTS, Plaintiff and Respondents, v. COUNTY OF SANTA CLARA, Defendant and Appellant. Docket No. 47586. Court of Appeals of California, First District, Division Two. July 20, 1982. *951 COUNSEL Selby Brown, Jr., County Counsel, and Ann Miller Ravel, Deputy County Counsel, for Defendant and Appellant. Robert M. Myers, Acting Ci...
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Opinion Plaintiffs and appellants Wayne A. and Ann M. Ingebretsen appeal from an order of the San Francisco Superior Court to sell homestead and issue writ of execution against a dwelling house in which the homestead exemption was determined to be $40,000. We believe this exemption to be the correct one and so affirm the order. *959 Facts On August 6, 1976, a defaul...
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Opinion The Monterey County Board of Supervisors (hereafter Board) and Rancho Canada de la Segunda, Inc. (hereafter Rancho), appeal from an order stating that the Board failed to comply with the trial court’s peremptory writ of mandate and that a use permit which the Board had issued to Rancho was invalid. We affirm. Statement of the Case and of the Facts Rancho applied for a us...
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Opinion Real parties in interest 1 were plaintiffs in a libel suit against petitioners Penthouse International, Ltd., and Robert C. Guccione. After a lengthy jury trial resulting in a defense verdict, defendants filed a statement of disqualification pursuant to Code of Civil Procedure section 170 against Kenneth W. Gale, the judge who had presided over the trial. The statement of objection to...
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Opinion Della Coone, contestant of the will of Harold Hudson, appeals a judgment admitting the will to probate under Probate Code section 26. 1 Harold Hudson, a resident and domiciliary of San Diego County, made a will in 1977 while in Japan. The will, in the Japanese language and made with the assistance of a Japanese attorney, is stipulated to be valid in conformity with Ja...
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Opinion Jefferson Classroom Teachers Association (hereinafter Association) and certain certified teachers appeal from a judgment denying their motion for summary judgment and granting Jefferson Elementary School District’s (hereinafter District) cross-motion for summary judgment. Association and District entered into a collective bargaining contract on February 6, 1978. Article IV section A(l...
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Opinion Petitioners have sought an extraordinary writ to compel the trial court to vacate its order denying their motion for summary judgment, and to enter a contrary order. For reasons we shall explain, we consider this to be one of the exceptional cases in which relief at the pleading stage of a pending action is warranted. (See Babb v. Superior Court (1971) 3 Cal....
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*1018Opinion Defendant was charged with, and after a trial by the court (trial by jury having been duly waived) was found guilty of possession of marijuana for sale, in violation of section 11359 of the Health and Safety Code. He has appealed; we reverse the conviction with directions. Acting on a tip that a man named Billy Connors was selling marijuana from a certain address, the police sent a kn...
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Opinion Defendant was convicted of murder in the first degree (Pen. Code, § 187) and rape (Pen. Code, § 261, former subds. 2 and 3), and the alleged special circumstance that the murder occurred during the commission of the rape (Pen. Code, § 190.2, subd. (a)(17)(iii)) was found true. He was subsequently found to have been sane at the time of the commission of the murder and rape. Defenda...
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Opinion The question presented on appeal is whether the City of Santa Clara (City) was under a duty to pass through to its ratepayers certain savings in costs of purchasing electrical power. For the reasons hereafter discussed following our grant of rehearing, 1 we again conclude no duty existed. Facts The City of Santa Clara owns and operates a municipal electrical u...
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*1048 Opinion Judy and Duane Kilburn appeal the dismissal of their action against Anselmo Pineda, M.D., contending the superior court erred in finding the statute of limitations had run. On November 21,1975, the Kilburns sued Pineda, alleging medical malpractice. The superior court found the one-year statute of limitations of Code of Civil Procedure section 340.5 began to run on the action ...
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*4 Opinion Raymond Luden Reynaud, M.D., a psychiatrist enrolled as a provider of publicly funded health services under California’s Medi-Cal statute (Welf. & Inst. Code, § 14000 et seq.), is accused by information of grand theft (Pen. Code, § 487, subd. 1) and of 10 counts of presenting false Medi-Cal claims (Welf. & Inst. Code, § 14107). The evidence introduced against him at pr...
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138 Cal.App.3d 12 (1982) 188 Cal. Rptr. 143 ARCHIBALD A. McKIRDY, Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; THE PEOPLE, Real Party in Interest. Docket No. A017222. Court of Appeals of California, First District, Division Two. December 13, 1982. *16 COUNSEL Kurt W. Melchior, Robert A. Spanner, Kenneth D. Noel and Severson, Werson, Berke & Melchior f...
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Opinion Juan Ramirez Castro, appellant, filed on December 2,1982, a motion to settle the record on appeal, pursuant to California Rules of Court, rule 36(b), and to extend the time for filing his opening brief to 30 days from the filing of the settled statement.1 Appellant seeks to obtain a settled statement of an unreported in-chambers discussion between the trial court judge and appellant’s coun...
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*37 Opinion Appellant Kamal Sergill was convicted by a jury of violating Penal Code section 288a, subdivision (c) (oral copulation with a person under 14). He contends the trial court erred when it permitted opinion testimony by two police officers as to the victim’s credibility. We agree, and reverse the judgment. Appellant’s niece, who was eight years old at the time of trial, testified t...
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Opinion In this case the workers’ compensation trial judge denied applicant’s claim for benefits on the grounds that the applicant’s intoxication was a substantial factor in the accident which resulted in his injury.1 *44The Workers’ Compensation Appeals Board (Board) granted reconsideration and in its opinion, order and decision after reconsideration opined that the defendant employer had “not me...
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Opinion Defendant was charged with: (count I) involuntary manslaughter of Bruce Burton, in violation of subdivision 2 of section 192 of the Penal Code; (count H) involuntary manslaughter of David George, in violation of subdivision 2 of section 192 of the Penal Code; (count III) violation of section 5157 of title 8 of the California Administrative Code, in violation of section 6423 of the Labor Co...
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Opinion In this decade-long school desegregation case, the trial court has issued an “amendment to mandate” in response to the remand of the case by the California Supreme Court. The San Bernardino City Unified School *72District has appealed. We reverse, because the trial court incorrectly followed the directions of the Supreme Court. I. Believing that the San Bernardino City Unified School Distr...
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Opinion This is an appeal from a judgment of conviction, after appellant, Don Carmon Albritton, pled guilty to two charges of receiving stolen property in violation of Penal Code section 496. The sole issue on appeal tests the validity of the trial court’s denial of appellant’s Penal Code section 1538.5 motion to suppress evidence. For the reasons to be explained herein, we con- *82 elude tha...
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Opinion Petitioner, a commercial tenant, seeks writ of mandate to vacate a judgment in unlawful detainer and to require the trial court to hear petitioner’s defense of retaliatory eviction. 1 The defense raises a claim that Ronald R. MacAnnan, real party in interest, terminated petitioner’s *92 tenancy because petitioner’s officers and employees refused to perjure ...
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Opinion Leland McCoy was the record owner of two parcels of real property in the County of Los Angeles which in July of 1976 were deeded to the State of California as a result of the owner’s failure over a period of time to pay property taxes levied thereon. (See Rev. & Tax. Code, §§ 3351, 3361, 3511.) On May 12, 1977, McCoy conveyed his interest in the realty to respondent A. E. Sandorf, Inc., b...
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Opinion The City of Los Angeles (appellant or the City) appeals from a judgment awarding Klopping damages in the form of interest in the amount of *116 $268,500, attorneys fees of $104,000, appraiser’s fees of $20,000 and miscellaneous costs of $9,805 to Property Owners (respondents or Property Owners). 1 On August 21, 1968, the board of airport commissioners passed a resolution to cond...
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138 Cal.App.3d 123 (1982) 187 Cal. Rptr. 612 THE PEOPLE, Plaintiff and Respondent, v. DWAYNE WILLIAM THOMPSON, Defendant and Appellant. Docket No. 41981. Court of Appeals of California, Second District, Division Five. November 15, 1982. *125 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Rosendo Pena, Jr., Deputy State Public Defender, for Defendant and ...
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*130 Opinion Plaintiffs appeal from an order granting motion to quash out-of-state service of process 1 upon two of the defendants in an action to recover compensatory and punitive damages for libel, invasion of privacy and intentional infliction of emotional distress. The verified complaint alleges: Defendant National Enquirer, Inc. is a Florida corporation trans...
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Opinion Defendants appeal from an order denying their motion to vacate a judgment by confession. We reverse the order. Plaintiff and defendant Joseph Infante had a dispute over monies allegedly due from Joseph to plaintiff. They agreed on a settlement of that dispute, which included the execution by Joseph and his wife of a promissory note and of a confession of judgment. The parties then wen...
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138 Cal.App.3d 149 (1982) 187 Cal. Rptr. 832 DEPARTMENT OF VETERANS AFFAIRS, Plaintiff, Cross-defendant and Respondent, v. LEON DELL DUERKSEN et al., Defendants, Cross-complainants and Appellants. Docket No. 21005. Court of Appeals of California, Third District. December 15, 1982. *151 COUNSEL Fred Crane and Alan L. Green for Defendants, Cross-complainants and Appellants. Howell Y. Jackson and H....
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138 Cal. App. 3d 159 (1982) 187 Cal. Rptr. 820 In re ANTHONY H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ANTHONY H., Defendant and Appellant. Docket No. 26801. Court of Appeals of California, Fourth District, Division One. December 15, 1982. *161 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Jeffrey J. Stuetz, ...
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Opinion After unsuccessful motions to suppress evidence and traverse search warrant (Pen. Code, § 1538.5), defendant Joseph Codinha pleaded guilty to possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a)), a lesser included offense to the charge contained in the information (Health & Saf. Code, § 11378). Codinha was placed on three years’ probation conditioned upon service of ...
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Opinion From the uncontested, but limited record before us,1 it appears that on November 22, 1970, when respondent Walter Dwyer was eighteen years of age, he was accused in the present proceeding (Los Angeles Superior Court case No. A509798) with having committed a residential nighttime burglary. Approximately two weeks later he was again arrested and charged in a Riverside County action in three...
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Opinion Jon Droz (Droz) appeals from a judgment of dismissal entered after the trial court sustained Pacific National Insurance Company’s (Pacific) general demurrer without leave to amend to Droz’s complaint. We disagree with Droz’s numerous contentions and affirm the judgment. Procedural and Factual Background On appeal, we regard the demurrers as admitting all properly pl...
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Opinion The Municipal Court of Ventura County, Civil Division, (Municipal Court) appeals from a Superior Court of Ventura County (Superior Court) order mandating the Municipal Court to comply with certain directives relating to the underlying small claims action for past due rent of real parties in interest Greenwood and Snyder (Greenwood and Snyder) against Frank J. Lekse, Jr. (Lekse). ...
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Opinion Defendant was convicted of reckless driving (Veh. Code, § 23103). His appeal was transferred to this court from the appellate department of the superior court pursuant to rule 62(a), of the California Rules of Court. The facts are these:1 while on routine patrol, with a fellow officer, Los Angeles Police Department Officer Souza observed a motorcycle traveling 55 miles per hour in a 25 mil...
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Opinio’1 .ara Holmes and defendant Speckman ,c to a certain parcel of real property in * r& & ./-foot strip of real property lying between plaintiffs ’ ...
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Opinion The question presented by this appeal, one of first impression and considerable significance, is whether the State of California may constitutionally impose its law requiring cumulative voting by shareholders upon a corporation which is domiciled elsewhere, but whose contacts with California, as measured by various criteria, are greater than those with any other jurisdiction. ...
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Opinion Victor and Helen Hess appeal from a judgment denying their petition for writ of administrative mandamus, which sought to compel respon *234 dent to set aside its decision holding that appellants unlawfully discriminated against real parties in interest. Real parties in interest John Pryor and Debbie Rodgers reached an agreement to rent a duplex owned by appellants, and paid a deposi...
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Opinion On September 30, 1980, Independent Bankers Trust Company (petitioner) was discharged as executor of the estate of John F. Erlwein, M.D. Over 15 months later, on January 12, 1982, it was served, as executor, with summons and complaint in an action for malpractice which real parties in interest had filed in January 1979 during the pendency of the probate proceedings. American Mutual Liabi...
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Opinion At issue herein is the amount of death benefits for which the employer’s workers’ compensation insurance carrier is liable where the deceased worker leaves surviving him only partial dependents. Under compulsion of Department of Industrial Relations v. Workers’ Comp. Appeals Bd. (Tessler) (1979) 94 Cal.App.3d 72 [156 Cal.Rptr. 183], (disapproved in Atla...
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138 Cal. App. 3d 256 (1982) 187 Cal. Rptr. 845 MOBIL OIL CORPORATION, Plaintiff and Respondent, v. AUGUST P. ROSSI, JR., et al., Defendants and Appellants. Docket No. 24670. Court of Appeals of California, Fourth District, Division One. December 17, 1982. *259 COUNSEL Shapiro, Laufer, Posell & Close, David Laufer and James H. Lehr for Defendants and Appellants. Buchalter, Nemer, Fields, Chrys...
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Opinion During the pretrial skirmishing between plaintiff Cal-American Income Property Fund VII, a California limited partnership (Fund VII), and defendants Brown Development Corporation and Richard T. Brown (collectively Brown), the trial court authorized and confirmed the receiver’s private sale of a shopping center, the subject of the litigation between the parties. Because we conclude...
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Opinion Appellant was convicted after court trial of 14 counts of theft of fiduciary funds and 9 counts of grand theft (Ins. Code, § 1733; Pen. Code, § 487, subd. 1). She was acquitted of two counts. 1 Appellant was sentenced to concurrent three-year upper base terms on nine counts and two stayed three-year upper base terms on fourteen counts. She appeals from the judgment. ...
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138 Cal.App.3d 284 (1982) 188 Cal. Rptr. 136 SAM PISTORESI et al., Plaintiffs and Respondents, v. CITY OF MADERA et al., Defendants and Respondents; TREND HOMES, INC., Real Party in Interest and Appellant. Docket No. 6487. Court of Appeals of California, Fifth District. November 26, 1982. *285 COUNSEL Robert K. Hillison for Real Party in Interest and Appellant. Parichan, Renberg, Crossman & Harve...
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Opinion Appellant Paul Hentzel brought this action against his former employer, the Singer Company (Singer), claiming, on the basis of various theories, that his termination from employment was wrongful and in addition that his employer was guilty of the tort of intentional infliction of emotional distress. The gist of his complaint is that his employer discriminated against him, and even...
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Opinion Plaintiff Sammons & Sons appeals from a judgment dismissing its action against defendant Ladd-Fab, Inc., after defendant’s demurrer to plaintiff’s “Complaint for Money Damages, Accounting of Profits, and Permanent Injunctive Relief on Account of Unfair Business Competí *308 lion and Practices; and for Declaratory Relief” was sustained without leave to amend. The ...
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Opinion Cross-complainant and appellant David Smith Bonds (Bonds) appeals from a judgment of dismissal entered in favor of cross-defendant and respondent State of California (State) acting by and through the California Highway Patrol (CHP) as a result of a demurrer filed by the State to Bonds’ first amended cross-complaint for indemnity, equitable contribution and declaratory relief. The State dem...
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Opinion Andrade Development Company (Andrade) appeals an adverse judgment in its action for breach of a real estate sales contract. In its original complaint, Andrade sought specific performance or, alternatively, damages from the sellers, Arnold and Ardismae Martin. The court sustained a demurrer without leave to amend as to Ardismae because the realty in question was community property and ...
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Opinion In this personal injury action arising out of a rear-end collision by a bus against an automobile, the defendants raised as contributory *342 negligence the failure of the plaintiffs to wear seat belts. The trial court permitted the.jury to apportion damages to the plaintiffs’ failure to wear seat belts, although the defendants presented no evidence, expert or otherwi...
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*348Opinion Husband appeals from orders after judgment and the denial of his motion to vacate a portion of a judgment. Final judgment of divorce was entered on December 31,1974. The judgment was pursuant to the stipulation of the parties and awarded to wife, as her share of community property, “One-half of the U.S. Navy Retirement pay of the Respondent husband, together with any increase thereon,...
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Opinion This is an appeal from a judgment of the superior court denying a petition for writ of mandate to compel a magistrate to accept a plea of guilty to a felony complaint. We shall affirm. A felony complaint was filed in respondent municipal court on March 9, 1981, charging petitioner Donald Cronk (hereafter defendant) with the murder of one James Milton Allen (Pen. Code, § 187). The comp...
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Opinion Plaintiff appeals an adverse judgment which denied his petition for writ of mandate and determined that certain Sacramento City Charter provi*359sions were constitutional. Plaintiff, a Sacramento police officer from 1968 to 1979, retired for industrially incurred mental disability. The matter was submitted on stipulated facts and medical reports. The proceeding challenged the constitutiona...
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Opinion E. L. White, Inc. and the City of Huntington Beach were unsuccessful codefendants in two lawsuits, a wrongful death action and a personal injury action, both of which arose from the same accident. After paying half of the judgments in both cases, Royal Globe Insurance Companies (White’s insurer) and White filed suit against Huntington Beach for indemnity. Prior to trial on the ind...
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Opinion This case arises out of an auto collision on a narrow, winding road. Plaintiff appeals from a judgment on a jury verdict in favor of defendants. Facts Plaintiff was a passenger, along with three other people, in a car driven by defendant Dahlberg. As they were driving on a narrow, winding mountain *382 road, Dahlberg’s car collided head-on with defendant Rus...
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*391 Opinion This is an original proceeding brought by the Metropolitan Water District (the district) seeking a writ of mandate to compel its secretary (respondent) to publish notice of sale of $30 million worth of bonds (series F bonds). The secretary has declined to do so thus far because she has concluded that it would be in violation of 1978 Proposition 13. Issuance of t...
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Opinion In this appeal we consider (1) under what circumstances an appellate court may order a trial court’s ex parte certification of materials erroneously omitted from the trial record; (2) whether an asserted public interest not reflected in statutory command can preclude application of the invited error *404 doctrine; and (3) whether a tactical police decision to delay arrest pursuant to ...
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*438 Opinion Introduction Clemens A. Hackethal, M.D., filed a petition for a peremptory writ of mandate in Superior Court in San Bernardino County. Named as respondents were the California Medical Association (CMA) and the San Bernardino County Medical Society (SBCMS). The objective of the petition was to obtain a peremptory writ ordering respondents to reinstate petitioner ...
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138 Cal.App.3d 450 (1982) 188 Cal. Rptr. 2 In re ELIZABETH S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ELIZABETH S., Defendant and Appellant. Docket No. 27909. Court of Appeals of California, Fourth District, Division Two. December 7, 1982. *451 COUNSEL Michael B. Lewis, Acting Public Defender, and Richard P. Siref, Deputy Public Defender, for Defend...
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Opinion Having been found not guilty by reason of insanity of forced oral copulation and assault with intent to commit murder in May 1976, Steven Wolozon was committed to Atascadero State Hospital under section 1026 of the Penal Code. 1 On March 9, 1981, the Alameda County District Attorney filed a petition pursuant to section 1026.5 to extend Wolozon’s commitment beyond the maximum prescribe...
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Opinion Introduction Plaintiff Irene Nieto appeals from an order of dismissal entered after the trial court sustained without leave to amend the demurrer of defendant City of Los Angeles to her complaint asserting causes of action for quasi-intentional interference with contractual relations, negligence and breach of warranty. Defendant based its demurrer on the ground that the compl...
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Opinion I Introduction This is an appeal from the judgment rendered against appellant on March 18, 1981, in Los Angeles Superior Court committing him to state prison for 13% years after he was found guilty by a jury of 10 counts of robbery and by the court of 2 counts of being an ex-felon in possession of a concealable firearm. Appellant contends that his Penal Code Section 1538.5 motion should ha...
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138 Cal.App.3d 484 (1982) 188 Cal. Rptr. 191 APTOS SEASCAPE CORPORATION, Plaintiff, Cross-defendant and Appellant, v. COUNTY OF SANTA CRUZ et al., Defendants, Cross-complainants and Appellants. Docket No. 46963. Court of Appeals of California, First District, Division Three. December 23, 1982. *489 COUNSEL Dennis J. Kehoe, G. Dana Scruggs III, Adams, Levin, Kehoe, Bosso, Sachs & Bates, Peter ...
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Opinion Gregory St. Germain appeals from the entry of a judgment of conviction after a jury found him guilty of grand theft (Pen. Code, § 487, subd. I), 1 receiving stolen property (§ 496, subd. 1), and robbery (§ 211), and he admitted that he had served a prior prison term within the meaning of section 667.5, subdivision (b). We affirm. Facts Prosecution’s Case Ms. Maruja Smith, wh...
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Opinion The State of California and the State Attorney General appeal from the judgment entered in favor of the City of Los Angeles declaring subdivision (d) of Government Code section 65860 to be “unconstitutional on its face for the following reasons: a. It is vague and unintelligible, b. It purports to intrude into matters traditionally reserved to municipalities without any...
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Opinion Ralph W. Recknor has appealed from an order that he pay Eve Lynn Recknor spousal support pendente lite and pay her attorney fees. Facts Eve Lynn Recknor was formerly married to Gerard Cautero. On May 4, 1965, a complaint for divorce was filed in Los Angeles by Eve Lynn Cautero against Gerard Cautero, on the ground of extreme cruelty. *541 Eve and Ralph Recknor were married on Ma...
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Opinion Appellant Roberto Martinez filed an action for personal injuries against Ralphs Grocery Company in the Los Angeles Superior Court. He elected to submit his cause to arbitration (pursuant to § 1141.12 of the Code Civ. Proc.) 1 The matter was arbitrated pursuant to the provisions of section *559 1141.10 et seq. On June 5, 1981, following the arbitration hearing, the arbitrator filed a...
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Opinion This is another “oops” pension case.1 *565Plaintiff, Donna Krusesky, says the “oops” was caused by the negligence of her divorce lawyer, defendant Clyde A. Baugh, who neglected to tell her the military retirement pension benefits paid to her husband Alex at the time of their 1969 divorce were community property. The divorce ended a 23-year marriage during which Alex served continuously in...
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Opinion The Association of Orange County Deputy Sheriffs (Association) appeals from a judgment denying its petition for a writ of mandate to compel the County of Orange1 to allow Association members the right to obtain credit in the county retirement system for federal military service before they were employed by the county. Association contends on appeal as it did in the trial court that federal...
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Opinion Cross-complainant Golden Bear Forest Products, Inc. (Golden Bear) appeals from a judgment dismissing Dominic Misale (Misale) as a cross-defendant pursuant to Code of Civil Procedure sections 877 and 877.6.1 *575The action upon which the cross-complaint is based arose out of an incident which resulted in serious bodily injury to Ramon Mandujano. Mandujano was in his tent at the King Sol Cam...
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*580 Opinion Facts The present case is an election contest for the Third Ward seat on the Common Council of the City of San Bernardino. This marks the second time that the case has been before us. Briefly, Fair was one of two runoff candidiates on the printed ballot for the seat. Hernandez was a legally qualified write-in candidate. After the election, Hernandez was declared the winner. F...
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Opinion C. L. Pharris Sand & Gravel, Inc. (employer) and Fidelity and Casualty Company of New York, the employer’s workers’ compensation insurance carrier, petitioned for review of an order of the Workers’ Compensation Appeals Board (Board) denying reconsideration of an order determining that an injury to the applicant, James R. Lindsey, is fully compensable under the Workers’ Compensatio...
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Opinion Fairview State Hospital, a legally uninsured agency of the Department of Health of the State of California, seeks review of an order of the Workers’ Compensation Appeals Board (Board) insofar as it purports to award the applicant, Matilda J. Kurash, further medical treatment. We conclude that the evidence specified by the Board in its order denying reconsideration does not constitute subst...
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Opinion By trial appellants Jose Steven DeLeon and Xavier Octavio Morales were convicted of robbery (count I, Pen. Code, § 211), grand theft (count II, Pen. Code, § 487), taking a vehicle (count HI, Veh. Code, § 10851), and assault with a deadly weapon (count IV, Pen. Code, § 245). As to counts I, II, and HI, the jury also found that appellants each personally used a deadly weapon (Pen. Code, §...
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138 Cal.App.3d 610 (1982) 188 Cal. Rptr. 205 DONALD R. SHELTON et al., Plaintiffs and Appellants, v. CITY OF WESTMINSTER et al., Defendants and Respondents. Docket No. 24979. Court of Appeals of California, Fourth District, Division One. December 24, 1982. *612 COUNSEL Marc Creighton Block for Plaintiffs and Appellants. Ruston & Nance and Lee P. O'Connor for Defendants and Respondents. *613 O...
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Opinion Following an aggressive election campaign, highlighted by intense media coverage, Julie Fisher lost her seat on the San Diego Unified School District Board of Education. Fisher blames her defeat on defamatory statements made by members of her successful challenger’s camp, and libels published in local newspapers. *632 In this defamation action, Fisher, acting as her ...
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Opinion Frank Herzog’s lawsuit claims his previous employer, “A” Company, Inc., tortiously barred him from employment within his career field *658when, in writing, it threatened to sue him and any “A” Company competitor employing him. Herzog’s complaint alleges “A” Company’s letter was sent for the sole purpose of unlawfully depriving him of an opportunity to work within his area of professional ...
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*671 Opinion Statement of the Case This appeal arises out of challenges to the sufficiency of the Tuolumne County General Plan and to the adequacy of the environmental impact report prepared in connection with adoption of the general plan. “The Planning and Zoning Law (Gov. Code, tit. 7, div. 1, commencing with § 65000) requires[s] . . . that the board of supervisors of each...
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Opinion The minor appeals from order sustaining petition finding to be true the charges of one count of murder (count I [J. Garcia]), four counts of robbery (count II [J. Garcia], count IV [N. Garcia], count VI [Loera], count VIII [Gonzalez]) with enhancements (§ 12022, subd. (b), Pen. Code) and three counts of attempted murder (count HI [N. Garcia], count V [Loera], count VII [Gonzalez]), and ...
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I respectfully dissent. The majority, by its opinion today, extends the “fireman’s rule” to bar recovery by a police officer or a firefighter who is injured or damaged by the intentional act of a participant in the event which brought the police officer or firefighter to the place of his injury. No California case has ever extended the “fireman’s rule” to bar recovery against such intentional tort...
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Opinion Allied Fidelity Insurance Company (Fidelity) appeals from an order denying its motion to vacate the forfeiture of an appeal bond and to exonerate the bond.1 The undertaking of the bond was that Geraldine Elizabeth Carmichael (Carmichael) would “surrender himself [sic] in execution of the judgment, upon its being affirmed or modified. ...” We determine that the phrase surrender “in executi...
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Opinion Muharem Kurbegovic, the self-proclaimed “Alphabet Bomber,” was convicted of twenty-five felonies, including seven arsons, three murders and eight charges based on injuries resulting from the bombing of Los Angeles International Airport. We affirm the judgment. I The Facts A. The Crimes As the facts of the crimes are neither in dispute nor important to t...
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Opinion In this appeal we must decide whether decedent’s surviving spouse is entitled to share in the proceeds of decedent’s retirement fund with the designated beneficiaries, decedent’s children of a former marriage. The facts are undisputed. In June 1971, decedent, Norman Gunn, a commercial pilot for United Airlines, was divorced from his former wife, Margaret. Under the terms of t...
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Opinion On appeal by the State Controller from an order fixing inheritance tax, we consider the question of the proper computation for inheritance tax purposes of the survivor’s contribution to acquired joint tenancy property under section 13671 of the Revenue and Taxation Code. For the reasons which we explain, we conclude the trial court erred in fixing the survivor’s contribution at one-half o...
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The jurisprudential questions raised by our dissenting colleague are formidable and deserving of careful consideration, but so far as this case is concerned it appears to me that the Supreme Court’s recent decision in People v. Snyder (1982) 32 Cal.3d 590 [186 Cal.Rptr. 485, 652 P.2d 42] is determinative. The court in Snyder, following People v. O’Brien (1892) 96 Cal. 171, 176 [31 P. 45], held tha...
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Opinion In two separate cases combined for plea bargain, the defendant pleaded nolo contendere to ten felonies committed between March 15 and November 28, 1978. In exchange for this plea, seven additional counts were dismissed and allegations of two prior convictions were stricken. Defendant’s motion to withdraw his plea was granted as to two counts and denied as to the remainder. Defendant appeal...
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Opinion The question presented is whether the trial court erred in awarding the bulk of the parties’ community property to husband on the basis that the property was acquired with husband’s personal injury proceeds. The parties were married in July 1975, and separated in May 1977. At that time, wife initiated proceedings to dissolve the marriage, but the parties reconciled prior to the entry of a ...
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Opinion Appellant James King sought mandate in Yolo County Superior Court to compel the Regents of the University of California to conduct a full adversary hearing on the decision to deny him tenure and to disclose the entire contents of his tenure file. Following denial of the requested relief, appellant appeals to this court. The Facts The University of California has established a proc...
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Opinion Appellant Sanderson was charged in the superior court with burglary (Pen. Code, § 459) and forcible rape (Pen. Code, § 261, subd. (2)). In the course of a plea bargain he pleaded guilty to the rape charge; as a condition of the bargain, the burglary charge was dismissed. Criminal proceedings were then adjourned and two psychiatrists were appointed to examine appellant for the purpose of d...
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Opinion The relevant factual and procedural context of the appeal before us may reasonably be condensed to the following. The above-named defendant Marlene Vernon (formerly Marlene Downey) is the mother, and one Joel Downey the father, of two minor children. In the parents’ State of California marriage dissolution proceedings of 1971, the father was awarded custody of the children and ordered...
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138 Cal.App.3d 832 (1982) 188 Cal. Rptr. 324 THE PEOPLE, Plaintiff and Respondent, v. WILLIAM HENRY BROWN, Defendant and Appellant. Docket No. 23505. Court of Appeals of California, First District, Division One. December 31, 1982. *833 COUNSEL Vaughn E. Spunaugle, under appointment by the Court of Appeal, for Defendant and Appellant. George Deukmejian, Attorney General, Robert H. Philibosian, Chi...
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138 Cal.App.3d 838 (1982) 188 Cal. Rptr. 328 THE PEOPLE, Plaintiff and Respondent, v. RONALD JAY ECHOLS, Defendant and Appellant. Docket No. 24037. Court of Appeals of California, First District, Division One. December 31, 1982. *839 COUNSEL Mark S. Rudy, under appointment by the Court of Appeal, David H. Fielding and Bushnell, Caplan, Fielding & Rudy for Defendant and Appellant. George Deukmejia...
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Opinion Status of the Case Appellant Marguerite C. Geftakys (hereinafter appellant) appeals from a judgment denying her petition for peremptory writ of mandate which would command respondents, California State Personnel Board, California Department of General Services and California Office of Administrative Hearings (hereinafter respondents) to (1) rescind any claim to recoup asserted overpay...
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Opinion Defendant was convicted by a jury of the offenses of conspiracy to commit second degree murder (Pen. Code, §§ 182, 187, 189), kidnaping for the purpose of robbery (Pen. Code, § 209, subd. (b)), and two counts of robbery (Pen. Code, § 211). The jury also found that defendant personally used a dangerous weapon in the commission of the kidnaping and in one of the two robberies. (Pen. Code, §...
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Opinion A jury convicted defendant of two counts of robbery (Pen. Code, § 211), with findings he personally used a firearm during the commission of each robbery (Pen. Code, § 12022.5), and a third count of automobile theft (Veh. Code, § 10851). The trial court sentenced defendant to a consecutive term of five years for one robbery, two years for the firearm use, and one year for the other robbe...
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Opinion Respondent was committed to Atascadero State Hospital in 1973 pursuant to Penal Code section 1026 after having been found not guilty by *972 reason of insanity of assault with a deadly weapon (Pen. Code, § 245, subd. (a)) and assault with a deadly weapon with intent to commit murder (Pen. Code, § 217). His maximum term of commitment was set at 2,190 days, a period he maintained expire...
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Opinion Cruz Taveras Campos was arrested on a charge of driving under the influence of alcohol1 and submitted to a blood test to determine the alcohol content of his blood. The test reading indicated an alcohol content of .10 percent, but the test employed contained an inherent inaccuracy of plus or minus .005 percent, thus making it impossible to determine the alcohol content more precisely than ...
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Opinion Charmaine Quinn, defendant, appeals from the judgment of the municipal court granting plaintiff’s motion for summary judgment in an unlawful detainer action. Appellant is a tenant in housing regulated by the Department of Housing and Urban Development. By stipulation, the parties agreed that a three-day notice to pay April 1981, rent or quit the premises was served by posting and mail on ...
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Opinion Defendants Todd and Cheryl Tolhurst appeal from a conviction of possession of marijuana for sale. (Health & Saf. Code, § 11359.) 1 The issues raised on appeal primarily concern the police destruction of marijuana pursuant to Health and Safety Code section 11479. We affirm the judgment. The case was submitted on the basis of the preliminary hearing transcript. On Oc...
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Opinion Kenneth Draper Nelson (plaintiff) appeals from the order and judgment dismissing defendants Harvey E. Billig, M.D., Paul Cress, M.D., Terrill R. Holland, Ph.D, Lindberg Hale, and 30 fictitious Doe defendants, and from the judgment following the order which sustained the State of California’s demurrer to plaintiff’s first amended complaint. The questions on appeal are: (1) when doe...
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*208 Opinion This controversy centers on the attempt by James W. and Patricia M. Stratton (Strattons) to buy the single family residence owned by Nasir and Sabira Tejani (Tejanis). 1 After the escrow between the parties failed to close on March 2, 1981, the Tejanis filed their complaint for unlawful detainer and for damages measured by the reasonable rental value of th...
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Opinion Joseph Geitner appeals from a judgment of imprisonment rendered after he pleaded guilty to first degree burglary (Pen. Code, §§ 459, 462, subd. (a)). *254 Appellant pleaded guilty after the court assured appellant issuance of a certificate of probable cause would preserve for appeal any errors in its prior ruling on the voluntariness of statements appellant had made to the police. T...
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*258 Opinion The petition for writ of mandate, filed December 10, 1982, has been read and considered. In the within petition, review of an order denying petitioner’s application to file a cross-complaint in forma pauperis is sought. As there is not a plain, speedy or adequate remedy at law, and in view of the fact the issuance of alternative writ would add nothing to the fu...
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Opinion Danny Fontana appeals from an order revoking probation 1 granted after the imposition of sentence upon a plea of guilty to rape (former Pen. Code, § 261, subd. 3) 2 with the use of a deadly weapon (§ 12022). Revocation proceedings were instituted in the San Francisco Superior Court on grounds which were also the bases for independent criminal charges in Marin County on which appella...
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Opinion Petitioner seeks issuance of a writ of mandate compelling respondent court to terminate his probation on grounds—inter alia—that the court was deprived of jurisdiction due to its failure to comply with the provisions of Penal Code section 1203.2a. 1 The undisputed facts contained in the record disclose the following sequence of events: *506 On September 5, 1975, petitioner was sen...
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Opinion Following a jury trial, appellant suffered a conviction of multiple counts in the information alleging that he had committed various serious felonies. After denial of his motion for new trial, probation was denied and appellant was sentenced to spend in excess of 18 years in the state penitentiary. Due to egregious error by the trial court, we must reverse and remand the matter for a ne...
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Opinion The People appeal from an order granting defendants’ motion to suppress evidence pursuant to Penal Code section 1538.5. Based on information received from an anonymous informant that some male Mexicans living at an address in Pomona were dealing in stolen guns, Officer Vincent Alvarez (Alvarez) of the Pomona Police Department, working undercover and equipped with a wireless transmitter, dr...
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Opinion Statement of the Case On July 21, 1981, an information was filed in the Fresno County Superior Court charging appellant with one count of robbery in violation of Penal Code section 211 (count one) and two counts of assault with a deadly weapon in *957violation of Penal Code section 245, subdivision (a) (counts two and three). All three counts alleged appellant personally used a firearm wit...
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Opinion In action No. 272278-3, appellant was charged with murder and robbery, with the use of a firearm in both offenses. Pursuant to plea bargain, appellant pled guilty to voluntary manslaughter, and the use allegation and robbery count were dismissed. In action No. 270549-9, appellant was charged with robbery, while being armed with a firearm. He pled guilty to robbery, pursuant to plea ba...
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*785 Opinion Cecilio H. Preciado (claimant) appeals from an order of the Superior Court of Ventura County denying his petition for writ of mandate. The only question before us on appeal is whether the decision of the Workers’ Compensation Appeals Board (WCAB) that claimant’s disability was service-connected is binding upon the Board of Retirement of the Ventura County Employees’ ...
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Opinion Respondent Albert Y. K. Kwok brought an action for unlawful detainer against appellants Scot Bergren and Cindy Sapp, and other defendants, for unpaid rent, restitution of the leased premises, for *598 feiture of the lease, attorney fees and costs. Appellants filed timely answers. After á nonjury trial, judgment was entered in favor of respondent on June 5, 1980, and a...
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