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All Reporters → cal-app-lexis → Volume 1989

Opinions in cal-app-lexis Volume 1989

206 Cal. App. 3d 1544 (1989) 254 Cal. Rptr. 674 THE PEOPLE, Plaintiff and Respondent, v. ARTURO SANTOS SANDOVAL, Defendant and Appellant. Docket No. F009436. Court of Appeals of California, Fifth District. January 3, 1989. *1546 COUNSEL Stanley Naparst, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorn...
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*1560 Opinion Upon a trial by the court at which the issue of defendant’s guilt was submitted upon the transcript of the preliminary hearing, defendant was convicted of unauthorized possession of marijuana in a prison farm in violation of Penal Code section 4573.6. 1 Defendant appeals his felony conviction, contending the municipal court was correct in finding that the crime was a misdemean...
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Opinion In this case, we hold that where a defendant pleads guilty to a felony before a municipal court judge sitting as a magistrate, the defendant has not been convicted “in a municipal . . . court” within the meaning of section 3050 of the Welfare and Institutions Code, 1 specifying procedures to *1568 determine eligibility for commitment to the California Rehab...
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Opinion Appellant Alfred Marvin Walker challenges an order reappointing respondent Fresno County Director of Health as conservator of his person pursuant to Welfare and Institutions Code 1 section 5361, and imposing certain special disabilities upon him pursuant to section 5357. Upon review, it appears the trial court properly reappointed respondent as appellant’s conservator. However, no fac...
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*46 Opinion Following denial of a motion to suppress evidence (Pen. Code, § 1538.5), Thomas Edward Dasilva entered a negotiated plea of guilty to possessing methamphetamine for sale. (Health & Saf. Code, § 11378). The court sentenced him to serve the middle term of two years in prison. Dasilva appeals. At approximately 12:30 a.m. on April 10, 1986, El Cajon Police Officer Mi...
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Opinion Plaintiff Javier C. Lopez was arrested three times on an outstanding warrant issued by the municipal court. The person named in the warrant had the same name, birth date, address and physical description as plaintiff Lopez. There was, however, a problem. Lopez was not the person named in the warrant. The court offered a solution. After his first arrest, the court prepared a docume...
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Opinion May a statute which increases punishment on a new drunk driving conviction where the defendant has incurred prior convictions for that offense within seven years be applied to prior convictions entered when five years was the maximum period in which prior convictions could be used for that purpose? We find that it may. Defendants Sweet and Crook appealed to the superior court appellate dep...
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Opinion In this appeal we hold that contributing to the delinquency of a minor (Pen. Code, § 272) is not a lesser included offense within unlawful sexual intercourse (Pen. Code, § 261.5). Convicted of unlawful sexual intercourse, defendant appeals. His principal contention on appeal is that contributing to the delinquency of a minor (“contributing”) is a necessarily lesser included offense in...
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*135 Opinion We review a summary judgment rejecting a First Amendment challenge to the actions of the administrators and trustees of the Wasco Union High School District in excluding two books from the school curriculum. In granting the judgment, the trial court ruled that the subjective intent of the trustees in removing the books was irrelevant because the trustees were acting in a legislat...
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Opinion A petition to compel arbitration is properly denied where there are sufficient grounds alleging illegality of the underlying agreement. The allegations, if proved, would render the entire contract void. The legality of the contract should first be judicially determined before any contractual disputes may be arbitrated. It is within the trial court’s discretion to decide whether th...
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*59 Opinion Statement of the Case Plaintiff, Jessica Rae Schmidt (petitioner), through her guardian ad litem, Deborah Wright, has asked this court to review the lawfulness of the trial court’s order denying her motion for summary adjudication of issues and partially granting real parties in interest’s (defendants’) motion for summary judgment. Petitioner filed a complai...
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Opinion Two sisters agreed in writing that they would share equally any inheritance received from their mother, notwithstanding any unequal disposition her will might provide. The mother died and in her will left the bulk of the estate to one daughter in a spendthrift trust, with the remainder to a granddaughter. This appeal presents the question whether the sisters’ agreement to share and share ...
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Opinion Barbara DeLoach appeals from a judgment of conviction entered on a jury verdict finding her guilty of two counts each of pandering and forcible oral copulation, one count of oral copulation with a person under 18 years of age, and one count of unlawful sexual intercourse with a female under the age of 18 years. We affirm the conviction but remand for resentencing. *328 I Appellant...
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Opinion Introduction Respondent Julia Zhigulina, a probationary teacher with the Board of Education of the Los Angeles Unified School District (hereinafter appellant), was terminated for cause under the provisions of Education Code section 44948.3.1 She sought issuance of a writ of mandate claiming that section 44882, subdivision (b) (hereinafter section 44882(b)) (since renumbered 44929.21), prov...
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Opinion Plaintiff, Dolores Matuz, appeals from judgment dismissing her cause of action for loss of consortium entered after the granting of motion for judgment on the pleadings. Factual and Procedural Background The first through the sixth causes of action of the complaint sought damages on several theories for personal injuries sustained by plaintiff when a Seneca model airplane in which s...
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*251 Opinion Defendant was convicted by jury of burglary of a dwelling (count I; Pen. Code, 1 § 459) and then admitted a prior felony conviction for burglary alleged pursuant to section 667.5, subdivision (b). Defendant was sentenced to the middle term of four years on count I and a consecutive one-year term for the prior. Statement of Facts On the evening of July 29, 1987, Jeff Lando...
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Opinion The City and County of San Francisco proposes to acquire by eminent domain the property of Cathay Mortuary, Inc., for development of a park. In its environmental review of the project, the Department of City Planning issued a negative declaration with respect to the need for an environmental impact report. The owners of the Cathay Mortuary, Nicholas and Virginia Daphne (hereafter ...
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*264 Opinion 1. Introduction Defendants Lloyd and Frances Clark, John and Minnie Taylor 1 (collectively “guarantors”), RCT Corporation (doing business as Monterey Peninsula Ford, Lincoln-Mercury), and Salinas Nissan, Inc. (“SN”; collectively “dealerships”) appeal from orders granting plaintiff Bank of America National Trust and Savings Association rights o...
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*393 Opinion Statement of the Case Plaintiffs Rose Marie Hurlbut and her mother and father, Tina and Louis Hurlbut, sued defendant Sonora Community Hospital (Hospital) for medical malpractice in failing to perform a timely caesarean section procedure resulting in Rose Marie being born with severe brain damage. The complaint set forth separate causes of action on behalf of ea...
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Opinion Plaintiffs Robert and Maria Badiggo appeal the summary judgment entered in favor of the County of Ventura. We affirm and hold that the county is immune from liability for injuries Badiggo suffered while confined at the county’s work furlough facility. (Gov. Code, 1 §§ 844, 844.6.) *359 Facts Plaintiff Robert Wayne Badiggo brought this action for personal injuries suffered when h...
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207 Cal.App.3d 291 (1989) 254 Cal. Rptr. 853 JAMES GREGORI et al., Plaintiffs and Respondents, v. BANK OF AMERICA et al., Defendants and Appellants. Docket No. A040851. Court of Appeals of California, First District, Division Two. January 20, 1989. *294 COUNSEL Michael G. Watters, F. Elaine Malisch, Noreen M. Evans, O'Brien, Watters, Davis, Malisch & Piasta, Paul R. Haerle, Robert M. Blum, St...
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Opinion Petitioners, International Union of Operating Engineers Local 12 (Union) and David Lanham (Lanham; hereinafter collectively defendants) seek a writ of prohibition restraining the trial judge, Edward Y. Kakita, from (1) hearing a pending motion for preliminary injunction and (2) presiding over any other proceedings in this action. The real parties in interest, Herzog Contracting Co...
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*234 Opinion Ronnie Earl Baylor was charged in an information in counts I and V with residential burglary (Pen. Code, § 459); in count II with theft of a firearm (Pen. Code, § 487); in count III with forcible rape (Pen. Code, § 261, subd. (2)); in count IV with forcible sodomy (Pen. Code, § 286, subd. (c)); in count VI with assault with intent to commit rape (Pen. Code, § 220); and in count V...
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Opinion Canterbury Termite Control, Inc. (Canterbury), appeals from the judgment entered following denial of its petition for a writ of mandate against the California Structural Pest Control Board (Board). We hold that Board’s decision imposing discipline upon Canterbury was based, in part, upon an incorrect interpretation of law and remand the matter for further proceedings. Backgro...
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Opinion This action arises out of a dispute over the interpretation of a written lease for commercial properties. At the settlement conference, the parties agreed to bifurcate the trial under Code of Civil Procedure section 598 1 and to try the issue of the lease interpretation first. The trial court interpreted the lease in favor of respondents. The issue of damages has not ye...
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*482 Opinion Plaintiffs, Raymond and Esther Kardly, were involved in an automobile accident. State Farm, their insurance company, refused to pay certain claims which caused them to suffer emotional distress. Meanwhile, they won a judgment in a personal injury action against the driver of the other vehicle, and recovered damages for emotional distress. We hold that the judgment in...
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Opinion The People seek review of an order granting real party in interest, Fabian Lopez Alvarado (Alvarado), probation upon his conviction after guilty plea of sale of marijuana. (Health & Saf. Code, § 11360, subd. (a).) We issued an alternative writ in order to determine whether a trial court has discretion to refuse to allow the People to amend a complaint to allege a prior felony conv...
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Opinion Petitioner Ras Adisa Gamba Oluwa (Oluwa) seeks writ review of a policy change of the California Department of Corrections *442 (CDC) 1 which denied certain life term prisoners the benefit of work time credits provided for in Penal Code section 2933 2 and limiting such prisoners to behavior and participation credit under section 2931. Because...
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Opinion Roberto Perez (defendant) appeals from a judgment of conviction following a second jury trial at which time he was found guilty of vehicular burglary (Pen. Code, § 459 1 ) as charged in a one count information. We affirm the judgment. Factual and Procedural Statement The information was filed on April 2, 1987. On June 5, 1987, the court declared a mistrial after the jury in the ...
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Opinion Petitioners, the Board of Supervisors of the County of Los Angeles (the Board, or the County) and Roberto Quiroz, Director of the Los Angeles County Department of Mental Health (the Director) (collectively, petitioners or the county defendants), seek a writ of mandate to prevent further enforcement of a preliminary injunction issued by respondent superior court, which injunction b...
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Opinion This case presents an issue of first impression under the Civil Discovery Act of 1986, Code of Civil Procedure section 2016 et seq. 1 Because we determine that the procedure employed by plaintiff must be considered an impermissible attempt to circumvent the plain provisions of section 2030, subdivision (/), it was error for the trial court to grant plaintiff’s motion to compel further...
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Opinion In an action initiated over 20 years ago by the Big Bear Municipal Water District (the District) against Bear Valley Mutual Water Company (Mutual) concerning the parties’ respective rights to the water in Big Bear Lake, the District has appealed from an order denying its motion to interpret and to modify a judgment which was entered in the action in 1977, and which prov...
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Opinion Respondent court has refused to hear petitioner’s timely motion for summary judgment. We issue our writ directing respondent court to continue the trial date and to hear the motion. Section 437c, subdivision (a) of the Code of Civil Procedure provides: “Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is ...
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Opinion P. I.appeals after the juvenile court referee sustained a supplemental Welfare and Institutions Code section 602 petition and committed him to the California Youth Authority.1 P. I. contends: (1) the referee’s order sustaining the petition is not supported by substantial evidence; and (2) the referee lacked authority to conduct the dispositional phase of the hearing. We affirm. Facts P. I....
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Opinion The People appeal from the judgment dismissing the information charging murder (Pen. Code, § 187) following the granting of defendants’ motion under Penal Code section 995 (all further statutory references to sections of an undesignated code are to the Penal Code). On appeal the parties debate the suitability of felony child abuse (§ 273a, subd. (1)) to support application of...
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Opinion Robert Dale appeals from an order of dismissal for failure to effect service of process or bring the action to trial within the relevant statutory periods. This appeal raises the question of whether entry of a default and default judgment against a party tolls the three-year period for service. Our answer to this question is not new; we reach the same conclusion as did the court in I...
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Opinion Petitioner Helen O’Donnell seeks a writ of mandate ordering the Superior Court of Monterey County to issue a writ of mandate to the Monterey County Municipal Court compelling it to treat O’Donnell’s notice of appeal as timely filed and to proceed with assembling the record. For efficiency, we treat the petition as one for mandate directed to the municipal court. We will issue the writ, fo...
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Opinion Both the mother, Ginger B. (Ginger), and the father, William B. (William), of Jessica B., a minor previously declared a dependent *508child of the juvenile court under Welfare and Institutions Code section 300, subdivisions (a) and (d), appeal from an order filed November 12, 1987, on a six-month review hearing. In particular, Ginger and William (jointly referred to as appellants) challen...
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Opinion Does the City of Los Angeles violate the establishment of religion clause of the United States and California constitutions when it permits display of an unlit menorah located near a decorated Christmas tree in the rotunda of its city hall? We conclude that the display in this case does not offend constitutional principles and affirm the trial court’s order awarding judgment to th...
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Opinion I. Introduction Respondent North Bay Regional Center (NBRC) filed a petition in the superior court for an order admitting appellant Sherry S. to Stockton State Hospital. The petition was granted. On appeal Sherry’s attorney contends that the order must be set aside because NBRC was not authorized to prosecute such a petition. The appeal presents an issue which we underst...
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Opinion In this case we hold that a malicious prosecution action against an attorney will not lie for failing to prevail on an order to show cause re contempt brought to enforce a discovery order in ongoing litigation. If the proceeding was brought in bad faith or for harassment or misuse of the discovery process, the appropriate relief is an award of sanctions against the attorney. ...
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Opinion We determine by this appeal that the exception to the search warrant requirement that arises when an officer has probable cause to search a vehicle for particular contraband (United States v. Ross (1982) *709456 U.S. 798 [72 L.Ed.2d 572, 102 S.Ct. 2157]) does not terminate because a suspect’s conduct prevents the officer from completing the search. Statement of the Case Following a prelimi...
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Opinion The underlying suit arises out of the alleged wrongful death of Ernest Mosher who suffered fatal injuries during the repossession of his car. His estate brought suit against the bank, the towing company and the repossession company, Regal Recovery Agency (Regal) among others. The towing company settled first for $500,000, and had it confirmed as a good faith settlement; the bank settled...
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Opinion Petitioner Cynthia Ann Casey seeks prohibition restraining the Superior Court of Calaveras County from proceeding to trial on action No. 2311, People v. Cynthia Ann Casey. She contends such prosecution is barred by Penal Code section 1387 1 by reason of two prior dismissals on the same cause of action in the San Joaquin Municipal Court. Section 1387, as relevant he...
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Opinion Defendant Kenneth Roy was convicted of the first degree murder of Archie Mannix (Pen. Code, § 187;1 count II) and his robbery (§211; count IV) after a jury trial and was found to have possessed but not to have used a knife during these offenses (§ 12022, subd. (b); counts II and IV). He was also convicted of the second degree murder of James Clark (§ 187; count I) and of personally using ...
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Opinion In United States v. Leon (1984) 468 U.S. 897 [82 L.Ed.2d 677, 104 S.Ct. 3405], the United States Supreme court held that evidence seized pursuant to the service of an invalid search warrant need not be suppressed where police officers serving the warrant relied on its validity in objectively reasonable good faith. (Id., at pp. 916, 922 [82 L.Ed.2d at pp. 694, 698].) The rule of ...
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*736 Opinion PlaintifF/appellant Scholastic Book Clubs, Inc. appeals a summary judgment in favor of defendant/respondent State Board of Equalization in appellant’s action for refund of use taxes. Appellant contends there is an insufficient nexus between its out-of-state business and its California contacts to permit imposition of a use tax. We affirm. Appellant is a corporat...
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Opinion Wilfried P. Ziegler (Wilfried) appeals after the trial court ordered him to make monthly payments to maintain the survivor benefit plan offered through his former employer, the United States Air Force, for the benefit of his former wife, Margarete Ziegler (Margarete). Wilfried contends this order is improper. We reject his arguments and affirm the order and judgment. Facts Wilfried ...
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Opinion The facts of the case are not in dispute. The procedures resulting in the contested judgment were summary, The sole issue of the case is the constitutionality of section 8102 of the Welfare and Institutions Code. 1 This section provides for the confiscation of “deadly *689 weapons” found in the possession of a person who is detained for examination as to m...
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*592 Opinion This is a consolidated appeal from judgments dismissing petitions for writs of mandate by which California Trout, Inc., National Audubon Society, and Mono Lake Committee (plaintiffs) would command the State Water Resources Control Board (Water Board) to rescind two licenses, issued to the City of Los Angeles and its Department of Water and Power (collectively referre...
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Opinion Introduction We are called upon to determine whether the juvenile court must state reasons on the record for imposing an aggregate or a consecutive commitment of a juvenile to the California Youth Authority (CYA). We conclude that it need not. Statement of Facts On December 23, 1987, a disposition hearing was conducted concerning Ismael’s theft of an automobile. He was referred to...
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Opinion Appellants Domenico and Adriana Fragomeno (the Fragomenos) appeal from the summary judgment in favor of respondent Insurance Company of the West (ICW) in an action involving causes of action for declaratory relief, breach of contract and breach of the covenant of good faith and fair dealing. The trial court concluded that the personal injury endorsement of the Fragomenos’ insurance policy...
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I am distressed at the denial of rehearing in the face of the fact that both the opinion of the court and my dissent were written in ignorance of a recent United States Supreme Court decision which undermined the major premise of both opinions; namely, the existence of Griffin error. The attempt to distinguish United States v. Robinson (1988) 485 U.S. 25 [99 L.Ed.2d 23, 108 S.Ct. 864], is unpersua...
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Opinion Defendant Roderick Garner appeals from the judgment entered following a jury trial that resulted in his conviction of second degree murder, He makes numerous contentions whose merit, or lack thereof, need not detain us since this proceeding was so fundamentally flawed from its inception that its result cannot possibly be sustained. The prosecution’s entire case-in-chief consisted sole...
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Opinion Muriel Rosenkranz, Karen Koelker, and the Berkeley Property Owners’ Association (BPOA) appeal from an order granting an *722 injunction prohibiting harassment pursuant to Code of Civil Procedure section 527.6. Because of errors in the proceedings below, we must reverse. I This controversy arose out of a well-publicized dispute over the occupancy of a piece of residential property ...
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Opinion Janis O’Dell lost her job as a police officer when she failed to successfully complete the required 12-month probationary period.1 O’Dell claims she completed probation before the City of San Diego (City) and Police Chief William B. Kolender notified her that her period of probation had been extended and argues she was therefore entitled to a civil service hearing before termination. The t...
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Opinion Margaret J. DeShurley appeals a judgment confirming the separate property nature of severance pay received by John R. DeShurley from Continental Airlines pursuant to a bankruptcy court order. Facts Margaret and John married on December 31, 1950, and separated on October 15, 1984. John was employed as a pilot with Continental Airlines from August 13, 1951, until about October 1, 1983, when ...
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*948 Opinion In this case we again deal with the recurring problem of the procedure to be followed under the California Tort Claims Act (Gov. Code, § 810 et seq.) 1 in actions where there exists a factual dispute between the claimant and the governmental entity as to whether a timely claim was filed as required by the act. James Michael Ngo was born March 5, 1985, at the Martin Luther Kin...
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Opinion Statement of the Case On March 10, 1987, appellant Matt Heath was charged with one count of burglary in the first degree (Pen. Code, § 459). He was arraigned on March 11, 1987, and had a deputy public defender appointed to represent him. He pled not guilty to the charge, and a jury trial was held. Appellant was found *895 guilty after a one and one-half day jury trial. The jury deli...
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Opinion The former version of article VI, section 17 of the California Constitution barred a judge of a court of record from practicing law and rendered the judge ineligible for any public employment other than a judicial one. Section 6 of that article empowers the Chief Justice to assign any judge to another court of higher jurisdiction without the consent of the assigned judge. In the publish...
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Opinion In this matter we have, on our motion, consolidated the appeal of plaintiff, Polly Rose, with the petition for writ of mandate filed by defendant G.D. Searle & Co. (Searle). This case arose from injuries which plaintiff alleges she sustained by her use of an intrauterine device (IUD) called the “Copper 7.” Searle manufactures the Copper 7. Defendant Doctor J. Kingsley Fife (Fife) ...
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Opinion Petitioner was brought to Riverside General Hospital for a 72-hour detention for treatment and evaluation pursuant to Welfare and Institutions Code section 5150 1 and subsequently was certified for an additional 14 days of intensive treatment on the grounds that he was gravely disabled as a result of a mental disorder. (§ 5250.) Petitioner sought judicial review by way ...
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Opinion After a court trial, the trial court determined that respondent William Boyle was entitled to recover the principal due on the promissory note of appellants Edwin P. Sweeney and Ronald Brown. Sweeney and Brown appeal, contending that codified antideficiency protection (see Code Civ. Proc., § 580b) 1 precludes this result. We affirm the judgment. I. Facts In 1981, Mario and Pearl E...
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Opinion By its complaint, appellant Continental Water Conditioning Company of the Bay Area, Inc. (Continental), a California corporation, sought the refund of a sales tax which it paid under protest to respondent State Board of Equalization (Board). Continental appeals from the judgment entered in favor of Board following trial. We affirm. I Facts We adopt in essential part the facts set forth b...
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Opinion Plaintiff and appellant Sherman S. Weber in propria persona sued numerous judges and officials of Ventura County and other persons for conspiracy to violate his federal civil and constitutional rights. The trial court dismissed appellant’s action after sustaining defendants’ and respondents’ demurrers on the ground of res judicata because judgment had been rendered against appella...
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Opinion Here we review a decision of respondent Workers’ Compensation Appeals Board (Board). The Board determined that applicant, who had sustained a disability while in a vocational rehabilitation program should be compensated at the rate ($70 a week) in effect at the time of the original industrial injury. We conclude the Board erred. His compensation should have been at the rate ($140 a week) i...
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Opinion FPCI RE-HAB 01, a California limited partnership (hereinafter RE-HAB), appeals from a judgment following the trial court’s grant of summary judgment favoring respondents, E & G Investments, Ltd., a California limited partnership; Stonebridge Management Corpora *1020 tion, a corporation; Dennis Emory, an individual; John Gough, an individual; and Dennis Waldman, an ind...
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Opinion Plaintiff and appellant Jay Mark Fineberg appeals from the judgment entered in favor of defendants and respondents Harney & Moore and David M. Harney (Harney) in an action to recover contingent fees in excess of the limit imposed thereon by Business and Professions Code section 6146. The primary question presented by this appeal is whether a client may waive the provisions of the...
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Opinion Plaintiffs Manuel, Gloria, Adam, and Victoria Roybal (Roybal) appeal summary judgment favoring defendant University Ford on Roybal’s complaint for breach of implied warranty, restitution and rescission, breach of contract, damages, fraud and negligence. Roybal contends the superior court erred in finding res judicata barred the action. We affirm. I On October 10, 1985, M...
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Opinion This appeal is taken from an order of the Los Angeles County Superior Court, the Honorable Norman L. Epstein, judge presiding, dated October 17, 1985, denying the motion of appellant, Surety Insurance Company (hereafter SIC) for an order exonerating bond and declaring judgment unenforceable. Affirmed. Respondent has filed no brief on the appeal. Although in our discretion we might automati...
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Opinion An indictment charged defendant, Frank Pereira, with two counts of offering false evidence (Pen. Code, § 132) and two counts of preparing false documentary evidence (Pen. Code, § 134; hereafter all statutory references to sections of an undesignated code are to the Penal Code). Defendant moved to set aside the indictment (§ 995). The trial court granted the motion as to counts one and thre...
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Opinion Petitioner seeks a writ of mandate directing respondent superior court to vacate its order denying her motion to compel discovery and to enter a new order granting the motion. *1152 As of October 23, 1985, the marriage of petitioner and real party in interest (real party) was dissolved. On May 5, 1987, a judgment was entered ordering real party to pay petitioner a to...
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Opinion In this case involving a plea bargain, the prosecution promised not to charge defendant with enhancements based on his service of prior prison terms. In the published portion of this opinion we hold that the plea bargain did not contain an implied condition precluding the trial court from using defendant’s prior prison terms as an aggravating factor to impose the upper term of imprisonm...
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Opinion The law is settled that in order for an aider and abettor to be held vicariously liable for an unplanned offense, a jury-must conclude beyond a reasonable doubt that the unplanned offense was a natural and probable consequence of the planned offense. (People v. *1093 Durham (1969) 70 Cal.2d 171, 181 [74 Cal.Rptr. 262, 449 P.2d 198].) We hold, however, that error created by the fai...
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Opinion Defendant, Don Lee Valencia, and his codefendant, Glenn G. Smith, each pleaded guilty to one count of robbery (Pen. Code, §211) and admitted use of a knife during its commission. (Pen. Code, § 12022, subd. (b).) Valencia admitted charged enhancements for two prior serious felonies (Pen. Code, §§ 667, 1192.7, subd. (c)), a 1981 residential burglary conviction and a 1977 attempted m...
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Opinion By a subsequent petition filed July 31, 1987, the Alameda County District Attorney, under section 602 of the Welfare and Institutions Code, alleged that appellant Nirran W. had committed an assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). Following the contested jurisdictional hearing, the court found the allegation to be true. The court ...
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Opinion In this case we hold that withdrawing an order to show cause re contempt from the calendar in a marital dissolution action cannot constitute the basis of an action for malicious prosecution, abuse of process or intentional infliction of emotional distress against the attorney for the moving party. If the order to show cause was brought in bad faith or for harassment or violated th...
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Opinion The City and County of San Francisco (the city) sought administrative mandate (Code Civ. Proc., § 1094.5) against a decision of its board of permit appeals (the board) overruling a zoning administrator’s denial of a permit to allow real party in interest Ilyas Absar to retain an existing third dwelling unit on property zoned for single-dwelling use. On appeal from the superior cou...
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Opinion This is an appeal from a judgment following conviction in the Santa Clara County Superior Court. Appellant was charged with felony driving under the influence of alcohol with the enhancement of causing injury to Louie Barrientos, Vehicle Code section 23153, subdivision (a) (count I); hit-and-run driving with injury, Vehicle Code section 20001 (count II); and driving on a suspended...
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Opinion Plaintiffs in these consolidated actions (collectively, appellants) appeal from summary judgment entered against them on the motion *1171 of defendants City and County of San Francisco et al. (collectively, the city). 1 Appellants asserted claims under state law and 42 United States Code section 1983 (hereinafter section 1983) arising out of a series of att...
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Opinion Introduction Plaintiff and appellant Kathleen Weiler (appellant) appeals from the visitation portion of the disposition order of the juvenile court in the matter of her minor daughters Danielle W. and Dasha W.1 Appellant contends that the order delegated all control over visitation to the social worker and the minors and therefore was an abuse of discretion, a denial of due process, an un...
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Opinion Petitioners, manufacturers of tobacco products, each of whom is a defendant in one or more of eleven lawsuits pending in respondent court, seek a writ of mandate and/or prohibition to compel the lower court to set aside its orders denying petitioners’ motions for judgment on the pleadings in the actions filed by the real parties in interest. As we explain, petitioners are entitled to ju...
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Opinion Plaintiffs Beresford Neighborhood Association and Leslie Hedden (collectively, appellants) appeal from the judgment entered in favor of defendant City of San Mateo (the city) after the trial court sustained the city’s demurrer to appellants’ first amended complaint and denied leave to amend. We affirm. *1185 I. Facts At a public hearing on May 4, 1987, the San Mateo City Council (...
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*1292 Opinion Charles Drew, represented by Pacific Legal Foundation, appeals from an order denying his motion for an award of attorney fees under Code of Civil Procedure section 1021.5. Drew prevailed upon summary judgment as a defendant in an action brought by the City of Sacramento (City) to declare the validity of a special tax assessment district to be formed to raise the unf...
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Opinion Stonewall F. and Jimmy H., minors, appeal from orders making them wards of the juvenile court, predicated upon findings that in intentionally setting a fire to a pile of leaves near a school building, which spread to the structure, they committed arson—the wilful and malicious burning of a structure. (Pen. Code, § 451.) In the published portion of this case 1 we conclu...
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*1200 Opinion Statement of Facts and Proceedings Below On April 21, 1986, respondent Joyce Ellen Gonzales (Joyce) filed an ex parte application for wage assignment for support (the application) pursuant to Civil Code section 4701. 1 The application, which was filed under penalty of perjury, stated appellant Laurence David Gonzales (Laurence) was in arrears for child support payments in th...
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Opinion Plaintiffs appeal from an order granting the motion of defendants James Watson, Bray & Watson and Clifford Gorman to quash service of summons for lack of jurisdiction and dismissing plaintiffs’ actions as to said defendants. 1 Facts James Brown and Sarah Crummie brought a legal malpractice action against two groups of defendants: Harold Gamer, James Tipps and Gam...
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Opinion In this case we hold that (1) retention of jurisdiction over spousal support after a marriage of short duration can be an abuse of discretion; (2) the limitations on reimbursement for separate property contributions to the acquisition of community property imposed by Civil Code section 4800.2 1 are inapplicable to and do not limit the trial court’s discretion in orderin...
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Opinion Revenue and Taxation Code section 6362 exempts from this state’s sales and use tax the gross receipts from any “newspaper” or “periodical” issued at regular intervals not exceeding three months. By administrative regulation, the State Board of Equalization (Board) has adopted a definition of newspapers and periodicals which excludes publications consisting of more than 90 percent ...
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Opinion This is an appeal from the order entered granting a summary judgment in favor of the defendant in a wrongful death action pursuant to Code of Civil Procedure section 437c. The appellants contend that the trial court erred in determining that the landlord had no duty to take measures to monitor or control the alleged psychotic behavior of another tenant who lived in the same a...
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*1195 Opinion Petitioner contends he was illegally committed because the magistrate refused to permit him to move for suppression of evidence at the preliminary hearing on the ground that the motion was untimely. We agree that the magistrate was required to hear the motion and that the information must be dismissed for the denial of a substantial right. On September 23, 1988, petitioner app...
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Opinion Introduction This is a purported appeal from an order of the superior court imposing sanctions on counsel for improperly suspending the deposition of a witness. We hold that the order is not separately appealable and dismiss the appeal. Factual and Procedural History On January 15, 1988, plaintiffs C. M. Slemaker and Roberta Slemaker served notice by telecopy to defendants’ counsel of depo...
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Opinion Appellant Harold Obremski was convicted by a jury of 25 sex crimes out of 26 charged offenses. 1 His convictions include seven violations of Penal Code section 261.5 (unlawful sexual intercourse with female under age 18—counts 14, 18, 21, 23 through 26); thirteen violations of Penal Code section 288, subdivision (a) (lewd or lascivious acts with child under age 14—count...
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Opinion Sixteen-year-old Gerardo B. (Gerardo) admitted two counts of auto theft. (Veh. Code, § 10851.) The 15 remaining counts combining auto theft and joyriding charges were dismissed with the district attorney reserving the right to comment on the dismissed counts at the dispositional hearing. Following the dispositional hearing, the juvenile court committed Gerardo to the California Youth Au...
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Opinion Code of Civil Procedure1 section 583.210 requires that a complaint be served within three years of the filing of a complaint. Defendant in a personal injury action was served with a complaint after the three-year period had elapsed. Within the three-year period, however, he filed an answer to a complaint in intervention that was later dismissed prior to the service of the complaint. We ho...
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Opinion Kathleen Marie Martin appeals from an order quashing service of summons for lack of personal jurisdiction and dismissing a joinder proceeding brought against respondent Delta Dental Plan of Michigan (Delta). For the reasons discussed below, we affirm the judgment (order of dismissal). Civil Code sections 4363 and 4363.1 authorize joinder of an employee benefit plan in a proceeding under t...
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Opinion I. Introduction Does a movie stuntperson assume the risk of injury by performing a movie stunt? Is a stuntperson who fails to employ a seat belt *1474 during an automobile stunt contributorily negligent? These are the two principal questions addressed in this appeal. Motion pictures remain one of the premier forms of entertainment in today’s world. Movies f...
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Opinion In this action we are called upon to determine whether, before severance of the parent-child relationship pursuant to Civil Code1 section 232, a developmentally disabled natural parent is entitled to services which are responsive to the family’s special needs in light of the parent’s particular disabilities. In addition to other issues we will discuss, we will hold that before the parenta...
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Opinion Appellant Social Services Union/American Federation of Nurses, SEIU Local 535, AFL-CIO appeals an order vacating that portion of an arbitrator’s award imposing a remedy for respondent public agency’s breach of their Memorandum of Understanding (MOU). Appellant’s sole contention is that the trial court erred in determining that the arbitrator exceeded the scope of his authority. We...
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Opinion Jeffrey Alan Williams drove his pickup truck into Delores Rodarte’s car while he was being pursued by sheriff’s deputies. Rodarte’s insurance company partially compensated her for the cost of the injuries sustained in the incident. May the trial court order Williams to pay restitution to the insurer? We hold it may not. Government Code section 13967, subdivision (c) provides that rest...
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Opinion In Franks v. Delaware (1978) 438 U.S. 154 [57 L.Ed.2d 667, 98 S.Ct. 2674] the United States Supreme Court held that a criminal defendant has a limited right to challenge the veracity of a facially valid search warrant. Because the affidavit in that case did not involve information obtained from a confidential informant, the court reserved the question of how to h...
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207 Cal.App.3d 1526 (1989) 255 Cal. Rptr. 781 VALERIE BACCUS et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; RALEIGH IRBY et al., Real Parties in Interest. Docket No. B036489. Court of Appeals of California, Second District, Division Seven. February 24, 1989. *1530 COUNSEL Wilson, Becks & Pyfrom, Eskel H. Solomon and Paula C. Gentile for Petitioners. No appearanc...
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Opinion and cross-complainants, Daon Corporation and Warmington-Daon Venture (hereafter Daon), appeal from an order dismissing their cross-complaint after a general demurrer by cross-defendant, The Place Homeowners Association, was sustained. 1 Because a demurrer admits all material facts properly pled (Glaire v. La Lanne-Paris Health Spa, Inc. (1974) 12...
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Opinion The law firm of Walzer & Gabrielson and four attorneys associated with that firm are defendants in an action for legal malpractice brought by Margaret Drain Lawrence, a former client, and appeal from the denial of their petition to compel arbitration. 1 Defendants contend (1) the retainer agreement signed by plaintiff compels arbitration of this action for legal malprac...
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Opinion Defendant was charged by information, in three counts, with murder, attempted murder and aggravated assault arising out of the senseless shooting of two people in Golden Gate Park. In addition to enhancement allegations, special circumstances were alleged, the prosecution indicating its intention to seek the death penalty. Defendant originally pled not guilty and not guilty by reason of...
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Opinion This appeal raises the question of what acts or omissions trigger coverage under an attorney’s errors and omissions policy where the attorney negligently drafted a will with adverse tax consequences to some of *1393 the beneficiaries of an estate. The trial court, applying the general “occurrence” rule espoused by some appellate courts in certain situations, ruled tha...
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Opinion —This is an appeal by the City of Stanton regarding its unsuccessful attempts under zoning ordinances to close an adult business which sells sexually explicit literature and materials. The store also operates a video arcade on the premises. Stanton’s request for a permanent injunction was denied in the court below. *1560 I Facts Defendant Ginger Cox is the ...
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Opinion After a jury trial, defendant Raheem Hall was found guilty as charged in count I of the information of the murder of Kari Ann *38 Kaye in violation of Penal Code section 187, 1 and the jury found the murder to be of the first degree. The jury further found to be true (1) the allegation that Ms. Kaye had been murdered by appellant while he was engaged in the...
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Opinion Appellant, Derrick Hill, was charged with three counts of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(2). 1 It was further alleged that appellant personally used a firearm and was armed with a firearm within the meaning of sections 12022.5 and 12022, subdivision (a), respectively. On May 7, 1987, a jury trial commenced and the court granted the...
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Opinion Defendants Mark Moskovitz, Harry Vartanian and Marvel, Inc. appeal from the judgment in favor of plaintiff James H. Reid. Plaintiff initiated this action for breach of contract, breach of warranty and fraud based upon intentional and negligent misrepresentations due to defendants’ sale to him of what was purported to be a diamond VS1-G color, weighing 1.23 carats with a replacement valu...
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Opinion Defendant and appellant Hulen Timothy Harrell appeals from the judgment of the Superior Court of Alameda county entered after a jury found him guilty of assault with intent to commit rape. (Pen. Code, § 220.) Appellant, who proceeded in propria persona at trial, contends on appeal that the trial court erred in allowing the prosecution to impeach him with his prior burglary convictions, ...
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207 Cal.App.3d 1490 (1989) 255 Cal. Rptr. 903 THE PEOPLE, Plaintiff and Respondent, v. ALBERT YANEZ NAVA, Defendant and Appellant. Docket No. D006920. Court of Appeals of California, Fourth District, Division One. February 23, 1989. *1491 COUNSEL Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve White, Chief Assistan...
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Opinion Plaintiff Hotel del Coronado Corporation (Hotel Del) appeals a summary judgment in favor of Employment Development Department of the State of California (Department). We affirm. I On April 28, 1981, the Department levied an assessment of $8,084 for unemployment tax contributions pursuant to Unemployment Insurance *61Code section 11311 on the Hotel Del. The amount of the assessment represe...
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Opinion The trial court sustained a demurrer to John Flynn’s cross-complaint without leave to amend after determining that a prior judicial arbitration award against Flynn was res judicata. 1 Because we hold a *1553 judicial arbitration award has no conclusive effect on issues raised in a subsequent proceeding on a different cause of action, we reverse the judgment...
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Opinion This appeal from the judgment of dismissal following demurrer poses the issue of whether developers of a condominium project, sued by *66homeowners, can state an equitable indemnity and negligence cause of action against forensic soils engineers who allegedly caused homeowners to make excessive repairs to their subsidence-damaged property. We conclude that since as a matter of law the dev...
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*111 Opinion I Statement of the Case Cal-American Income Property Fund II appeals from a decision by the superior court denying its request for a refund of property taxes. The issue raised is whether there was a change of ownership in the real property, within the meaning of Proposition 13, so as to permit a reassessment of its value and the attendant increase in property taxes. II Fa...
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Opinion In the published portion of this opinion 1 we hold that the exercise of a power of sale in a deed of trust may not be predicated upon breaches in the payment of secured obligations which are listed in the notice of default as conditioned by “if any.” These contingent assertions fail to state that a default “has occurred,” as required by Civil Code section 2924, 2 ...
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*157 Opinion After a court trial, judgment was entered annulling the June 16, 1987, run-off election for the fourth district councilmanic seat of the City of Inglewood. Ervin Thomas (Thomas), who had been declared the winner of that election; the City of Inglewood and the City Clerk for the City of Inglewood (collectively as the City) appeal from the entire judgment. Garland Hardeman (contest...
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Opinion In these consolidated writ proceedings we are presented with the novel question of whether a city may shield from production in a criminal prosecution, under the attorney-client privilege, those statements made by its police officers to an investigating team organized by the city’s police department to gather and preserve evidence for use by the city attorney in the defense of a p...
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Opinion The question in this case is whether plaintiff Willbarb Petroleum Carriers, Inc., a distributor of motor vehicle fuel, timely filed an application for a refund of a fuel tax. The issue turns on which of two procedures under the Motor Vehicle Fuel License Tax Law (Rev. & Tax. Code, § 7301 et seq.) governs the refund application in this case. The first procedure is found in the arti...
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*1582 Opinion —Antonio Cornelio appeals from a judgment entered on a jury verdict finding him guilty of possession of cocaine for sale (Health & Saf. Code, § 11351—count I), and possession of cocaine (Health & Saf. Code, § 1135(>—count II). The court denied defendant’s motion to exclude a prior felony conviction of false imprisonment (Pen. Code, § 236) for impeachment purposes. W...
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Opinion Petitioner, the minor, Cheyenne K., seeks an order from this court holding that, as a matter of law, the juvenile court must exclude the public, including a representative of real party in interest, The Modesto Bee (The Bee), from a hearing to determine petitioner’s competency to stand trial. Statement of the Case and Proceedings Pursuant to Welfare and Institutions Code 1 section...
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Opinion When Robert Lance Jones was due to be released on parole from a state prison commitment, the authorities at the facility where he was housed, Atascadero State Hospital, determined his existing mental *295 illness would in all likelihood prevent him from completing parole successfully. Accordingly, they referred his case to the County of San Diego for assistance in est...
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Opinion Introduction Plaintiff Howard Gitlen & Associates, Inc., appeals the trial court’s judgment in favor of defendants Par viz Ameri and Wendy Ameri on a com *93 plaint filed January 28, 1985, for breach of contract, account stated, common counts for money due and owing and for money due for services, and for fraud. The record on appeal includes neither a trial ...
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Opinion Appellant Frank L. Winnaman appeals from a judgment denying his petition for a writ of mandate to compel respondent Cambria Community Services District (CCSD) to provide water and sewage service to Winnaman’s development project for a connection charge of $3,840.08 rather than the $24,544.78 demanded by CCSD. We affirm. Facts The matter was tried upon facts stipulated by...
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Opinion Following a jury trial the defendant, Juan Castillo Jerez, was found guilty of second degree robbery (Pen. Code, § 211). In addition, it was found that defendant personally used a firearm (Pen. Code, §§ 12022.5, 1203.06, subd. (a)(1)). It was further found that defendant had suffered three prior serious felony convictions within the meaning of Penal Code section 667, subdivision (a) and...
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Opinion In the County of Colusa, there is a little, narrow road known as Hahn Road, which runs three miles from Cortina School Road to Highway *259 Interstate 5. It is not of yellow brick but in the words of Colusa County’s director of public works, is “an old, worn-out 15-or-16 foot wide asphalt surface with dirt shoulders. . . .” This is the story of how the little, narrow ...
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Opinion On one level, the issue in this case is simply one of attorney’s fees. Are plaintiffs Roy Cazares and Thomas Tosdal, former partners in the law firm of Cazares & Tosdal, entitled to one-half of a *282 contingent fee promised them by defendant Phil Saenz when he associated the firm on a particular personal injury case, notwithstanding that Cazares became a municipal co...
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Opinion Plaintiffs Marshall E. Redding, M.D., and John Mark Lawrence, M.D., filed a complaint against St. Francis Medical Center, a hospital and a not-for-profit corporation (hereinafter St. Francis), on July 7, 1988. Also named as defendants were Daughters of Charity, a not-for-profit corporation, Sridhara S.K. Iyengar, M.D., an individual, Sridhara S. K. Iyengar, M.D., Inc., a professional co...
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Opinion The Chico Feminist Women’s Health Center (Center) operates a clinic in the City of Chico where abortions are performed. The Center moved to amend a preliminary injunction by obtaining an additional injunctive order excluding defendants, citizens of Chico who have picketed the Center, from “any vantage point from which clients entering the [clinic] can be identified” on Saturdays w...
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Opinion Appellant Kathleen Brownfield filed an action in which she sought, on behalf of herself and the general public, a declaration that Daniel Freeman Marina Hospital’s failure “to provide information about and access to estrogen pregnancy prophylaxis to rape victims as part of their emergency medical treatment . . . constitutes a failure to provide optimal emergency treatment of rape ...
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Opinion Appellant Mark Lester Sevan was convicted by jury of three counts of lewd and lascivious acts upon twelve-year-old Karen C. (Pen. *395 Code, § 288, subd. (a).) As to each count the court ordered Bevan placed on formal probation for a period of three years with six months in the county jail as a condition of probation. On appeal he contends, inter alia, that he committed a single oifen...
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Opinion In this action the plaintiff John Kim (Kim) seeks damages for defamation which he alleges was committed by the several defendants. The alleged defamation arises out of the multiple litigation matters associated with Kim’s marital and child custody dispute with his ex-wife (see opn. filed this date in Kim v. Kim, ante, p. 364 [256 Cal.Rptr. 217; consolidated c...
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208 Cal.App.3d 304 (1989) 256 Cal. Rptr. 189 THE PEOPLE, Plaintiff and Respondent, v. DONALD TYLER WADE, Defendant and Appellant. Docket No. G005611. Court of Appeals of California, Fourth District, Division Three. February 28, 1989. *306 COUNSEL David D. Carico, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve White, Chief Assist...
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Opinion Appellant Anthony Curtis appeals from the order requiring him “to pay petitioner [Leslie M. Curtis]. . . one-half of the residuals awarded petitioner pursuant to the interlocutory judgment of dissolution of marriage . . . without offset for the Doubleday & Company, Inc. liability and costs connected therewith.” On January 22, 1982, the trial court rendered an interlocutory ju...
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Opinion Does a second entry into a burglarized home via a door unlocked during the initial visit several hours earlier constitute a separate burglary? We hold it does and that judgment may be imposed on both crimes without offending Penal Code section 654. I Shortly after midnight on June 5, 1987, minor William S. and a juvenile accomplice decided to burgle a home belonging to neighbors of ...
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*360 Opinion A jury convicted appellant Dennis Meeker of indecent exposure (Pen. Code, § 314, subd. I), 1 battery on a peace officer (§ 243, subd. (c)), and three counts of resisting without force or violence (§ 148). In a separate trial, the court found appellant had served two separate prison terms for prior felony convictions (§ 667.5, subd. (b)). He was sentenced to four years in state ...
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Opinion Appellants were severely injured when the vehicle in which they were traveling rolled over in a tragic mishap on Highway 101. They appeal from the judgment entered in favor of the manufacturer, distributor and retail vendor of the car in which they were riding, following a jury’s special verdict that there was no defect in the design of the vehicle and that respondents were not negligen...
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*22 Opinion Walter B. Johnson (appellant) was charged with first degree residential burglary committed on November 28, 1987, in violation of Penal Code 1 section 459. The information also alleged that appellant had suffered eight prior separate prison terms (§§ 667.5, subd. (b)) and eight prior serious felony convictions (§§ 667 and 1192.7, subd. (c)(18)). 2 Appellant pled not guilty and ...
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Opinion General Teamsters, Warehousemen and Helpers Union, Local 890 (the Local) appeals from a jury verdict awarding compensatory and punitive damages to J. R. Norton Company for losses caused by negligent supervision of strikers during a 1982 labor dispute. The Local contends that the trial court gave conflicting instructions, erroneously giving the California common law agency liabilit...
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Opinion On December 18, 1987, the San Francisco District Attorney charged defendant and respondent Uakbar Sharrieff Bismillah with (1) four counts of assault with a deadly weapon (a vehicle) upon a peace officer (Pen. Code, 1 § 245, subd. (b)); (2) one count of driving under the influence of an alcoholic beverage and causing bodily injury (Veh. Code, § 23153, subd. (a)), with special allegati...
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Opinion In this case we are called upon to determine whether proponents of a referendum petition collected the requisite number of signatures to suspend the adoption of a county ordinance and force the legislative body to either reconsider the ordinance or submit it to the voters for approval. We are asked by plaintiffs, the proponents of the referendum petition, to interpret the requirement se...
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*473 Opinion Defendant Richard Worrell (father) appeals from the trial court’s order that he pay $126 per month as temporary support of his minor child Jasmine Aisha Worrell. He initially challenges the county’s decision to file an independent action rather than intervene in an extant domestic relations action. He also asserts his right to an offset for money he spends on the chi...
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Opinion The trial court dismissed Esther Moyal’s complaint for personal injury and assessed monetary sanctions against her attorney Nick A. Alden for noncompliance with orders made and deadlines set under “fast track” procedures adopted pursuant to the Trial Court Delay Reduction Act. (Gov. Code, § 68600 et seq.) Moyal appeals, contending the trial court abused its discretion by enforcing...
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Opinion Lawrence T. Butler (appellant) appeals the judgment of the superior court entered in favor of respondent The Bank of California (Bank), contending that the court erred in sustaining the Bank’s demurrer to his complaint without leave to amend. For the reasons set forth below, we reverse the judgment. *642Facts The complaint contains the following material facts.1 In April 1976, Butler was...
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Opinion I In a libel case, by statute, a newspaper owner, by publishing a sufficient retraction, gains immunity from liability for general or punitive damages, remaining responsible only for any special damages suffered by the defamed plaintiff. To be sufficient for this purpose, the retraction must appear “in substantially as conspicuous a manner in said newspaper ... as were the st...
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Opinion Defendants the City of Los Angeles and its chief of police, Daryl F. Gates, appeal from a judgment granting the petition of plaintiff Frank Lucero, a police officer employed by the City of Los Angeles, for a writ of mandate compelling defendants to nullify and revoke a December 22, 1987, order suspending plaintiff from his duties for 22 days without pay. Defendants contend (1) they we...
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*637 Opinion Respondents Gisele R. Cervisi, Muriel Bartholomew, and other part-time, hourly employees of real party in interest San Francisco Community College District sought unemployment benefits for the period between fall and spring semesters when none of the respondents were working. Appellant Unemployment Insurance Appeals Board determined that the applicants were ineligible for benefit...
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Opinion Plaintiffs and appellants Eugene Schneider and Bernice Schneider appeal from the judgment of the Superior Court of Alameda County entered in favor of defendants and respondents United Airlines, Inc., and Roy Thomas, Inc. The judgment was entered in favor of respondents on the ground that appellants’ causes of action stated in their amended complaint were barred by the one-year statute o...
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Opinion Statement of the Case Petitioners City of Hanford, Hanford City Council, Hanford Planning and Building Departments, Hanford City Planning Director James Beath and the individual city council members (City or Petitioners) seek a writ of *584 prohibition or mandamus directing respondent Kings County Superior Court to vacate (1) its order granting real party in inte...
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Opinion Following trial by jury defendant was convicted of first degree burglary (count I; Pen. Code, 1 § 459), assault with intent to commit rape (count II; § 220), attempted rape (count III; §§ 664, 261, subd. (2)), and intimidating a witness (count IV; § 136.1, subd. (c)(1)). The jury found defendant not guilty of attempted rape (count III; §§ 664, 261, subd. (2)) and petty theft (count V;...
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*613 Opinion Following a jury trial, defendant Douglas Eugene Wilson was convicted of first degree burglary (Pen. Code 1 , §§ 459, 460, subd. (1)). In a bifurcated proceeding, the trial court found true allegations that defendant had previously been convicted of a serious felony (§§ 667, 1192.7) and had served a prior prison term (§ 667.5, subd. (b)). Defendant received a prison term of 10 ...
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Opinion In this case we are asked to decide whether a trial court committed reversible error in failing to issue a written statement of decision after a request from counsel following a one-day trial, and whether respondent Monterey County Department of Social Services’ institution of a policy of “protected time” for its employees was a mandatory subject of bargaining under the Meyers-Mil...
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Opinion This is a proceeding in mandate. Petitioner Raytheon Company (Raytheon) seeks review of a discovery order of the superior court *685 which granted the motion of plaintiffs and real parties in interest Renault & Handley Employees Investment Co., Raymond G. Handley, Milla C. Handley, Y. A. Tittle, Minette Tittle, Carolyn Handley Gillen, Jeffrey Handley, and Mary Robins ...
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Opinion Kenneth Kizer, Director of the Department of Health Services (Director and Department, respectively), appeals from the trial court’s judgment ordering a peremptory writ of mandate. The dispute involves plaintiff Willard Will’s eligibility for Medi-Cal benefits. When he applied, Will and his wife owned a commercial building in downtown Marysville assessed at $154,792 and appraised ...
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Opinion George Uhler pleaded guilty to possessing marijuana for sale but contends the contraband was unlawfully seized. We find the officer substantially complied with the knock-notice provisions of Penal Code section 1531 and suppression would not be available in any event because compliance was excused under the federal “useless gesture” exception. I On the afternoon of September 23, 1986...
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Opinion Introduction “[T]he logic of words should yield to the logic of realities.” (Di Santo v. Pennsylvania (1927) 273 U.S. 34, 43 [71 L.Ed. 524, 529, 47 S.Ct. 267] (Brandeis, J., dis.), overruled on other grounds in California v. Thompson (1941) 313 U.S. 109, 116 [85 L.Ed. 1219, 1223, 61 S.Ct. 930].) In this case, we must determine wheth...
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Opinion May police officers engage in a “sick-out” (blue flu) during labor negotiations? No. I The Santa Ana Police Benevolent Association (PBA), a nonprofit association of sworn and nonsworn public safety employees of the Santa Ana Police Department and the City of Santa Ana were engaged in a “meet and confer” bargaining process for a new memorandum of understanding whe...
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*727 Opinion A jury found Vicente Bretato Sanchez guilty of 10 counts of child molesting under Penal Code 1 section 288, subdivision (a) (counts 1-6, 9, 12, 15 and 18), 5 counts of child molesting with duress under section 288, subdivision (b) (counts 7, 10, 13, 16 and 19), 2 and 5 counts of oral copulation with a person under 14 and more than 10 years younger than the defendant under sec...
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*775 Opinion Respondent NEC Electronics Inc. (NEC) filed a motion to amend its judgment against Ph Components (Ph) to add appellant Porter Hurt (Hurt) as a judgment debtor. The trial court granted the motion and Hurt brings this appeal. We reverse. Factual and Procedural Background NEC filed suit against Ph in March 1985 to recover amounts due for goods which NEC sold t...
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Opinion Defendants Terry Wilcox, Mission Hills Country Club, Mission Hills Company, and Landmark Land Company, Inc. (collectively, Mission Hills) appeal from entry of a preliminary injunction restraining defendants from interfering with plaintiffs William and Henrietta Young-blood’s use and enjoyment of the benefits of a lifetime membership in the Mission Hills Country Club (Club). Facts Th...
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*570 Opinion The People charged defendant in count I with possession of cocaine (Health & Saf. Code, § 11350), in count II with possession of heroin (Health & Saf. Code, § 11350), in count III with possession of marijuana for sale (Health & Saf. Code, § 11359), in count IV with possession of oxycodone (Health & Saf. Code, § 11350), in count V with possession of a device, contriva...
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Opinion Defendants and cross-complainants Gerald P. Heckert, Claudette E. Heckert, John A. Brooks, Marian J. Brooks, George F. Heckert, and Valerie Heckert (appellants) appeal from the judgment and post-judgment order denying their requests for attorney fees based on the “third party tort” exception to the general rule that each party must pay his own attorney fees. (Code Civ. Proc., § 10...
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*844 Opinion Appellant was convicted of assault with a firearm (Pen. Code, §§ 245, subd. (a), 1 12022.5), possession of a machine gun (§ 12220), and possession of a silencer (§ 12520). Following denial of his motion for new trial sentence was imposed for these offenses and for separate convictions (Super. Ct. L.A. County, No. A756542) of possession of cocaine for sale ...
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Opinion Joan Murray filed a petition for writ of mandate to compel respondent Sonoma County Office of Education to rehire her as a permanent part-time nurse serving the Gravenstein Union Elementary School District. She has appealed from the order denying the petition. We affirm. *458 Facts Respondent Sonoma County Office of Education (hereafter Office of Education or respondent) is a publ...
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Opinion On August 25, 1981, Robert J. Thompson, a convicted child molester out on parole, molested and murdered 12-year-old Benjamin Brenneman. Benjamin’s parents and sisters (Brennemans) sued the State of California and others; their theory against the state was negligent failure to control Thompson or to warn Benjamin of Thompson’s proclivities. Brennemans appeal dismissal as to the state, af...
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Opinion Samuel Unjian brought this medical malpractice action against Dr. Berman alleging the face-lift Berman performed left Mr. Unjian with a worse face than before surgery. The trial court granted Berman’s motion for summary judgment on statute of limitations grounds and dismissed the action. We reverse. There is no dispute over the facts presented to the trial court. The question on appea...
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Opinion Defendant Michael Benally appeals from a judgment of conviction entered upon a jury verdict finding him guilty of battery with *903 serious bodily injury. (Pen. Code, §§ 242-243, subd. (d).) 1 The jury found him not guilty of two counts of forcible rape. (§261, subd. (2).) The trial court sentenced defendant to state prison for the upper term of four years. Defendant makes the fol...
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Opinion Factual Summary On December 15, 1986, the Fallbrook Public Utilities District (FPUD), pursuant to the Cortese/Knox Local Government Reorganization Act of 1985 (Gov. Code, 1 § 56000 et seq.), applied to the San Diego County Local Agency Formation Commission (LAFCO) for approval of a plan to incorporate the new city of Fallbrook. The proposal FPUD made to LAFCO ...
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*863 Opinion Statement of the Case This appeal follows the trial of consolidated actions for personal injuries and wrongful death arising out of a two-car collision on May 30, 1985. Plaintiff, George Bane, and plaintiff’s decedent, Timothy England, were traveling westbound on State Route 152 when their Toyota van was struck by a vehicle driven by David Castro, who was making...
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Opinion Plaintiffs Antonio Cabamongan and Alicia Cabamongan appeal the order denying their petition for “relief from the provisions of Government Code section 945.4.” 1 *948 Facts On October 15, 1986, plaintiffs’ son Allan was struck in the head with a softball while playing at the Hudson Elementary School located in Long Beach, California. A nurse was summoned to the school to examine ...
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*893 Opinion William C. McGowan, Jr., plaintiff and appellant, sought money damages for false arrest, false imprisonment and assault and battery from the City of San Diego and Steven Higuera, defendants and respondents. The trial court granted a motion for summary judgment in favor of respondents. McGowan appeals. 1 We reverse, concluding collateral estoppel does not e...
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Opinion Attorney Donald A. Hon represents the plaintiffs Laborers’ International Union of North America, AFL-CIO, Local 89 et al., in this lawsuit against El Dorado Landscape Company et al. Appealing an order imposing sanctions, Hon challenges the constitutionality of the San Diego County “Fast Track” rules (Fast Track rules) enacted to implement the Trial Court Delay Reduction Act of 198...
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Opinion After a court trial, based on a stipulation of facts (Code Civ. Proc., § 283) and numerous exhibits, the trial court found in favor of plaintiffs/respondents Paul L. Newman and Joanne W. Newman and against defendant/appellant Franchise Tax Board (the Board). The Board appeals; it contends that the court erred when it determined the allocation formula to be applied between Californ...
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Opinion Defendant Yvette Hellgren pled guilty in superior court to one count of felony welfare fraud (Welf. & Inst. Code, § 10980, subd. (c)) and was granted probation with imposition of sentence suspended. Having obtained a certificate of probable cause (Pen. Code, § 1237.5), she appeals, urging that advisements attending her plea were deficient and that several conditions of her probati...
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Opinion On June 9, 1987, pursuant to Welfare and Institutions Code section 602, a petition was filed charging appellant Deon D. with three counts of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(2). As to each count it was further alleged that appellant personally used a firearm within the meaning of Penal Code section 12022.5. Appellant denied the allegat...
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Opinion Plaintiff Harbor Insurance Company appeals from the judgment against it and in favor of defendants KSCH, Inc., 1 Tae Son Won, Ok Pun Won, II Gi Kim, Arthur Beltran and Nam Yong Lee. *967 Facts Harbor initiated this action for declaratory relief to obtain a declaration that a policy it issued to Erwin Davis, Inc., doing business as Full Service Car Rental “validly excluded covera...
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Opinion When Wilmer Breeden died, his will designated the bulk of his estate to be placed in trust and used to promote the principles of socialism and related causes. Claiming Breeden’s bequest was not intended to be a charitable trust and was not otherwise valid because it failed to designate definite beneficiaries and violated the rule against perpetuities, Breeden’s nephew (Peter Neu) and niec...
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Opinion Rogelio Sauceda Vento was charged with, and pled guilty to, one count of selling cocaine and marijuana (Health & Saf. Code, § 11352), one count of selling cocaine (Health & Saf. Code, § 11352), and two counts of soliciting or using a minor to violate Health and Safety Code section 11352 (Health & Saf. Code, § 11380, subd. (a)). Probation was denied and Vento was sentenced to five ...
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Opinion This case concerns the application of Unemployment Insurance Code section 1262 which renders ineligible for unemployment compensation employees who leave work because of a trade dispute. The petitioners are striking employees whose employer implemented a wage reduction after their collective bargaining agreement expired. As the wage reduction was an issue expressly tendered in negotiation...
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Opinion Defendants and cross-complainants Carlos Bock-man and Maria Trinidad Bockman appeal from a default judgment in favor of plaintiffs Harry and M. June McArthur. The defendants’ default was entered as a result of the McArthurs’ successful motion for sanctions after the Bockmans failed to attend their court-ordered deposition pertaining to an inquiry into their financial condition pursuant ...
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Opinion The warden of San Quentin and the Director of the Department of Corrections (hereafter collectively referred to as the Department) appeal from an order directing that when the Department suspects a prisoner of possessing a controlled substance and a field test of a certain *1024 type has been performed indicating that the substance is controlled, written notice of a charge of possessi...
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Opinion This appeal is from the trial court’s order setting aside certain portions of previous orders settling the 10th and 11th accounts of the former conservator, appellant Margaret I. Heaps. The primary contention raised by Heaps is that the trial court was without authority to grant respondent Cynthia Tobias’s motion to vacate the orders pursuant to Code of Civil Procedure 1 ...
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Opinion Troy DeWayne Phillips was charged by information with robbery (Pen. Code, 1 §§ 211, 212.5, subd. (b)). It was further alleged that he intentionally inflicted great bodily injury during commission of the crime (§ 12022.7). Phillips waived his right to a jury trial and stipulated that the court could consider the transcript of his preliminary hearing together with testimony adduced at t...
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Opinion Appellant Korody-Colyer Corporation (K.C.) brought a malicious prosecution action against General Motors Corporation (G.M.). G.M. demurred on the grounds that the action had been filed *1150 in excess of the applicable statute of limitations. The demurrer was sustained and judgment entered in favor of G.M. K.C. appeals. We treat as true the allegations of the com...
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*1072 Opinion In this proceeding, we review respondent superior court’s order denying the motion for summary judgment or summary adjudication of issues brought by petitioner (defendant). The underlying action was commenced by real parties in interest (plaintiffs) after defendant rejected a claim for benefits under a health insurance policy. Defendant moved for summary judgment on...
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Opinion Petitioner, Jerry D. Bigelow, was tried for murder, robbery and kidnapping. The jury convicted him of robbery and kidnapping, but the following bizarre circumstances resulted in a mistrial on the murder charge: The jury had first submitted a verdict which acquitted Bigelow of murder, but found that the charged special circumstances existed. While the trial court and counsel attempted, over...
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Opinion Petitioner, American International Underwriters Agency, seeks a writ of mandate directing the superior court to vacate an order denying petitioner’s motion for summary judgment against real party/plaintiff Jo Henry Fuentez on real party’s second amended complaint accusing petitioner and other insurance companies of (1) unfair insurance practices in violation of Insurance Code sect...
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Opinion After a jury trial, defendant/appellant Joda Mayer (defendant) was found liable for personal injuries suffered by plaintiff/appellant Karen Irene Martinides (plaintiff) when she was hit by a car. 1 Defendant appeals, asserting the court erroneously allowed the jury to apply the doctrine of res ipsa loquitur. Plaintiff appeals, contending the court erred when it conditionally granted d...
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*1211 Opinion Alleging a variety of theories, Don R. Lewis and Elinor J. Lewis sued Robert L. Purvin, Jr., for legal malpractice. Purvin in turn cross-complained against the Lewises’ attorney of record, Richard W. Davis, seeking indemnification and declaratory relief arising out of the same transactions on which the Lewises based their complaint. After the trial court sustained w...
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Opinion Defendant pled guilty to committing a lewd and lascivious act upon a child under the age of 14. (Pen. Code, § 288, subd. (a).) The victim, defendant’s niece, was seven years old at the time of the offense. Defendant was placed on probation for five years on condition that he serve one year in county jail, have no contact with the victim or any other minor female unless in the presence o...
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Opinion Appellants Modesto High School District, Modesto City School District, Empire Union School District and Stanislaus Union School District (Districts or appellants) appeal from a peremptory writ of mandate in favor of respondents Sutco Construction Company, Inc. (Sutco), Steven Paul Zagaris Development Company (Zagaris), and Vintage Faire Development Company, Inc. (Vintage Faire), (Develo...
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Opinion Defendant Kenneth Jerome James was charged in an information in count 1 with burglary (Pen. Code, § 459), 1 in count 2 with penetration by a foreign object (§ 289, subd. (a)), in counts 3 and 4 with rape (§261, subd. (2)), in counts 5 and 7 with robbery in an inhabited dwelling (§ 213.5), and in count 6 with vehicle theft (Veh. Code, § 10851). A special allegation of use of a deadly w...
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*1352 Opinion Statement of the Case Petitioner Ruth Eldridge, an eight-year employee of Sierra View District Hospital, was elected to the governing board (Board) of the hospital district at a public election. Pursuant to a recently enacted district bylaw, which precluded employees from sitting on the Board, her employment with the hospital was terminated. Eldridge sued for v...
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*1346 Opinion In this original proceeding, five unnamed members of the 1987-1988 Kern County Grand Jury (the Grand Jury) seek a writ of mandate to compel the Kern County Superior Court (the Superior Court) to order the filing and publication of their separate minority report as a part of the Grand Jury’s final report. Petitioners’ challenge to the Superior Court’s refusal to...
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Opinion Filmservice Laboratories, Inc. (Filmservice) appeals 1 from a judgment (order of dismissal) following the sustaining of the demurrer of defendant Harvey Bernhard Enterprises, Inc. (Bernhard) to its third amended complaint, without leave to amend. *1301 The central question in this appeal is whether the oral contract between the parties was to provide servic...
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Opinion Appellant Celestino Mendoza Gonzales was convicted of voluntary manslaughter for shooting his neighbor. In the published portion of this opinion, we consider Gonzales’s contention the judge erred in using Gonzales’s conduct subsequent to the charged offense to aggravate the sentence. In the unpublished portion of the opinion, we consider his remaining assignments of error, namely, insuf...
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Opinion Nancy Bartlome appeals from a judgment in favor of respondent State Farm Fire & Casualty (State Farm) in a declaratory judgment action. After settling her personal injury claim for the limits of a commercial liability policy issued to “Tahoe Boat Rental,” Bartlome sought to establish additional coverage under a personal liability umbrella policy issued by State Farm to Lloyd ...
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Opinion Statement of the Case Defendant Bradley Snyder appeals from a judgment of conviction for escape with force and violence (Pen. Code, § 4532, subd. (b)). 1 He claims his right to a jury trial was violated and that the trial court abused its discretion in rejecting his guilty plea. We find no merit to these claims and affirm the judgment. Facts On September 7, 1986, defendant, ...
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Opinion I Statement of the Case These shareholder derivative actions 1 arise from the merger of Natomas Company (Natomas) into Diamond Shamrock Corporation *1256 (Diamond), effective August 31, 1983. By their complaints, appellant Tilly Gaillard, a common stockholder of Natomas, and appellant Vincent J. Ashton, a common stockholder of Diamond, challen...
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Opinion Petitioner, McFaddin San Diego 1130, Inc., doing business as Confetti (Confetti), seeks a writ of review after the Alcoholic Beverage Control Appeals Board (the Board) upheld the Department of Alcoholic Beverage Control’s (the Department) suspension of its liquor license under Business and Professions Code section 24200, subdivision (a). 1 The Department in its charging accusation all...
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*1334Opinion After a jury trial, defendant Richard James Cappellia was convicted of offering to sell heroin. (Health & Saf. Code, § 11352.) Defendant contends the court (1) improperly denied his pretrial motion to suppress evidence, and (2) improperly refused to admit into evidence certain postarrest police conduct which supported a defense of entrapment. We disagree, and affirm the judgment. I T...
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Opinion Following the denial of his motion to suppress evidence, Demetrius A., a juvenile, admitted that he had possessed a controlled substance, cocaine, in violation of Health and Safety Code section 11350. He was *1247 thereafter adjudged a ward of the court for a maximum period of three years. Defendant appeals from the judgment declaring him a ward of the court. The following issues ar...
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Opinion Respondent, together with other inmates at the Humboldt County Jail, filed a petition for writ of habeas corpus, claiming that appellant violated his constitutional rights by replacing direct dial pay telephones *1178 in the jail with collect-only telephones. 1 The essence of respondent’s complaint is that the public defender’s office and some private attorneys and other county offi...
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Opinion Defendant Felix A. McElroy was convicted of fifteen counts of robbery with personal use of a firearm (Pen. Code, 2 §§ 211, 12022.5), ten counts of robbery while armed with a firearm (§§ 211, 12022, subd. (a)), two counts of robbery (§211), one count of attempted robbery with personal use of a firearm (§§ 664/211, 12022.5) and one count of *1419 attempted robbery while armed with a f...
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Opinion ABC Plumbing & Heating Company, Inc. (ABC) appeals a judgment in favor of Vernon Savings & Loan Association (Vernon) after the court dismissed ABC’s complaint for breach of contract, to foreclose a mechanic’s lien, and to enforce a stop notice against Vernon for lack of subject matter jurisdiction. The primary issue in this case is whether a subcontractor which has filed and serve...
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Opinion This action arises out of the Mediterranean fruit fly eradication program and raises an issue similar to that decided by this court in Farmers Ins. Exchange v. State of California (1985) 175 Cal.App.3d 494 [221 Cal.Rptr. 225]. Plaintiff appeals after the trial court sustained without *1368 leave to amend defendant’s demurrer to her third amended complaint. For the reasons stated b...
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Opinion Petitioner contends that he was not an adult at the time the offense with which he is charged was committed. We agree and hold that a juvenile attains age 18 on his birthday rather than on the day before his birthday. Petitioner was initially charged by complaint with an offense occurring on August 12, 1988. Upon learning that petitioner was born on August 13, 1970, the munic...
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Opinion Carolyn D., mother of the minor, appeals from a postpermanency planning order continuing the minor’s placement in a foster-adoptive home. The mother contends that the trial court erred in not placing the minor with the mother’s aunt, who was already caring for the mother’s other child (the minor’s half-sister, also a dependent of the court). We conclude that the trial court was under no du...
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208 Cal.App.3d 1317 (1989) 256 Cal. Rptr. 846 THE PEOPLE, Plaintiff and Respondent, v. DAVID CARL DREWS, Defendant and Appellant. Docket No. D006590. Court of Appeals of California, Fourth District, Division One. March 23, 1989. *1320 COUNSEL Janice M. Lagerlof, under appointment by the Court of Appeal, for Defendant and Appellant. Wilbur F. Littlefield, Public Defender (Los Angeles), Laurence M....
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Opinion Alyce S. Pollock appeals an order reestablishing her conservatorship under Welfare and Institutions Code, 1 section 5362, subdivision (b). She contends the court improperly treated her waiver of her presence and the presence of her attorney at the hearing as a stipulation the court could reestablish the conservatorship. We affirm. Factual and Procedural Background On February 16, ...
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Opinion This is an action for wrongful termination of employment brought by respondent E. Robert McLain against appellants Great American Insurance Companies, Great American West, Inc., American Financial Corporation, Rose Ann Herman and Kemper Eakle. The jury returned a general verdict for McLain and awarded him $62,000 in compensatory damages. We affirm. Facts and Procedural Backgr...
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*916 Opinion In this case we are asked to decide which insurance carrier is liable for an increased rate of permanent disability indemnity when the Workers’ Compensation Appeals Board (board) finds a combined disability based on several injuries that straddle a rate change. We find that the insurance carrier for each injury is liable for its total percentage of liability found, and accordingl...
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Opinion Plaintiff Janie Orr appeals judgment after jury trial favoring defendants Pacific Southwest Airlines (PSA) and Wackenhut Corporation on her complaint for negligence. Orr contends the court erred in granting nonsuit on her third cause of action seeking to impose on defendants the standard of “utmost care and diligence” required of common carriers under Civil Code 1 secti...
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Opinion The Los Angeles County Department of Children’s Services (DCS) appeals from the order dismissing a supplemental petition filed under Welfare and Institutions Code section 387.1 Facts In 1985, Eduardo, Sheila, Catalina, Maria and Laura A. were declared dependent children of the juvenile court (§ 300) because of sexual molestation of Sheila, Maria and Catalina by their father, Juan A. The fa...
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Opinion The trial court found that Steven D. (Steven) had abandoned his son Michael for a period of one year within the meaning of *126 Civil Code 1 section 232, subdivision (a)(1) and ordered that his parental rights be terminated and that Michael be freed for adoption by his stepparent. In this appeal Steven raises the following claims: 1) The one-year period measuring abandonment should ...
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Opinion This appeal is from an order denying the motion of Robert and Stella George (appellants) to vacate a consent judgment into which they had entered with the City of Glendale (the City). We must first consider the procedural validity of this appeal. Ordinarily, a consent judgment cannot be attacked. (Atchison, T. & S. F. Ry. Co. v. Hildebrand (1965) 238 Cal...
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209 Cal.App.3d 49 (1989) 257 Cal. Rptr. 180 THE PEOPLE, Plaintiff and Respondent, v. ROBERT EUGENE LAZANIS, Defendant and Appellant. Docket No. B036678. Court of Appeals of California, Second District, Division Seven. March 29, 1989. *51 COUNSEL Robert B. LeCorvec, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve White, Chief Assi...
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Opinion In granting separate motions for summary judgment brought by defendants America West Airlines, Inc. (America West) and the San Diego Unified Port District (Port District), the trial court ruled America West had no duty to protect against or warn of certain negligent conduct by third persons on its leased premises, and Port District’s public property did not harbor a dangerous cond...
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209 Cal.App.3d 31 (1989) 257 Cal. Rptr. 171 THE PEOPLE, Plaintiff and Respondent, v. WILLIE JEROME GATLIN, Defendant and Appellant. Docket No. B035694. Court of Appeals of California, Second District, Division Seven. March 29, 1989. *34 COUNSEL James W. Haworth, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve White, Chief Assista...
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209 Cal.App.3d 163 (1989) 256 Cal. Rptr. 894 LAKE MADRONE WATER DISTRICT, Plaintiff and Appellant, v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Respondent. Docket No. C003345. Court of Appeals of California, Third District. March 30, 1989. *165 COUNSEL Paul R. Minasian, Michael V. Sexton and Minasian, Minasian, Minasian, Spruance, Barber, Meith & Soares for Plaintiff and Appellant. J...
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*1498 Opinion This is an appeal from a judgment of dismissal of the Monterey County Superior Court after that court had sustained respondents’ demurrer without leave to amend. Facts In the underlying case of People of the State of California v. Cappuccio, Inc., et al., No. 7734, appellants were found guilty by the Monterey County Superior Court of 592 violations of former Fish and Game Co...
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209 Cal.App.3d 177 (1989) 257 Cal. Rptr. 37 INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; JACKIE F. PACKHAM, Real Party in Interest. Docket No. D008677. Court of Appeals of California, Fourth District, Division One. March 30, 1989. *179 COUNSEL Gray, Cary, Ames & Frye, William S. Boggs and Laura Whitco...
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Opinion Appellant John Dixon Wilson was convicted of first degree robbery and being an ex-felon in possession of a concealable firearm. (Pen. Code, §§ 211, 212.5, subd. (a), 12021.)1 His sentence included two five-year sentence enhancements for two Texas prior convictions. (See § 667, subd. (a).) On appeal, he contends that (1) there was insufficient evidence of robbery of an inhabited dwelling ho...
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Opinion Plaintiff Manuel F. Abreu appeals from a judgment notwithstanding the verdict in favor of defendants Svenhard’s Swedish Bakery (Bakery) and Bakery, Confectionery & Tobacco Workers’ International Union, Local 119 (Union) in this wrongful termination action. We affirm the judgment. Facts and Procedural History In August of 1974 plaintiff was hired by Bakery. The follow...
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Opinion Consumers Union of United States, Inc., appeals 1 from a judgment of dismissal by the Sonoma County Superior Court entered after the court sustained the demurrer of respondents Fisher Development, Inc. (Fisher), and Creekside Village Homeowners Association (the Homeowners Association), without leave to amend. Because the trial court erred in sustaining the demurrer on t...
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Opinion Government Code section 945.3 tolls the statute of limitations on government tort actions while related criminal charges are pending against a plaintiff. We hold that for the purposes of the statute, criminal charges are “pending” until the date of judgment, not the date of conviction. Petitioners City of Berkeley and Berkeley Police Officers McAlpine and Nelson (collectively City) ar...
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209 Cal. App. 3d 189 (1989) 256 Cal. Rptr. 902 CITY OF TURLOCK, Plaintiff, Cross-defendant and Respondent, v. PAUL M. ZAGARIS, INC., Defendant, Cross-complainant and Appellant. Docket No. F009935. Court of Appeals of California, Fifth District. March 30, 1989. *190 COUNSEL Donald J. Horvath and Thomas A. Lacy for Defendant, Cross-complainant and Appellant. *191 Carl O. Waggoner, City Attorney, fo...
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Opinion I Preliminary Statement Plaintiff and cross-defendant, State of California Public Employees’ Retirement System (PERS), as lessor, brought this action against defendant and cross-complainant, frank d. winston (winston), as lessee, seeking unpaid rent and attorney fees. Winston cross-complained for declaratory relief and retroactive rent abatement. Following a court trial, the court...
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209 Cal.App.3d 1494 (1989) 261 Cal. Rptr. 409 MILLBRAE SCHOOL DISTRICT et al., Petitioners, v. THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; MILLBRAE REDEVELOPMENT AGENCY et al., Real Parties in Interest. Docket No. A044532. Court of Appeals of California, First District, Division Three. March 31, 1989. *1495 COUNSEL Leonard D. Brinley for Petitioners. No appearance for Respondent. Joseph E...
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*316Opinion Defendant, Dorothy Fay Baríes, and the People both appeal contending that the sentence imposed pursuant to a guilty plea is unauthorized by law. This appeal raises only sentencing issues; therefore the facts are not relevant. Baríes pleaded guilty to the following offenses: two counts of second degree burglary (Pen. Code, §§ 459, 460, subd. 2) and one count of escape from a county jail...
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Opinion Monroe Thomas McKenzie and Janet Turner appeal a judgment denying them, as stepchildren of Bessie Claffey, any entitlement to Claffey’s estate. They contend the trial court prejudicially erred in instructing the jury to find a “family relationship,” rather than a mere stepchild/ stepparent relationship, as a prerequisite to their intestate succession. I Thomas and Janet are the chil...
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Opinion Appellant James Frey was convicted of seven felony counts, sentenced to a term in state prison and ordered to pay restitution. On *141 appeal, he contends that the restitution fine imposed violated the requirements of Government Code section 13967, subdivision (c). We agree. Factual and Procedural Background On March 4, 1988, appellant pled guilty to seven felony counts including ...
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*329 Opinion Introduction Plaintiff Octavio Torres, a minor, by and through his mother and guardian ad litem, Graciela Torres, appeals the trial court’s grant of summary judgment to defendants County of Los Angeles, Juan Arce, M.D., William Fields, M.D., Addie Davis, L.V.N., Patricia Barrett, R.N., Frances Riley, R.N., Wesley Prater, M.D., James Tucker, M.D., Louis Peterson,...
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Opinion Summary A jury found Lawrence A. Gordon “gravely disabled” within the meaning of Welfare and Institutions Code section 5008, subdivision (h). On appeal and by way of a petition for a writ of habeas corpus, he argues he should have been given the 10 peremptory challenges provided by former Penal Code section 1070 rather than the 6 challenges he was given under *367former Code of Civil Proc...
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Opinion This appeal follows a judgment of the Los Angeles County Superior Court, the Honorable David A. Thomas, judge presiding, rendered in an action for declaratory relief in favor of plaintiff and respondent North River Insurance Company (hereafter North River) against defendant and appellant American Home Assurance Company (hereafter American Home). The judgment is affirmed in all res...
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*215 Opinion Appellant was nonsuited on his opening statement in his action against the State of California for injuries received while involuntarily hospitalized at Napa State Hospital. He contends, inter alia, the trial court erred in ruling he had not stated a prima facie exception under Government Code section 855, subdivision (a) 1 to the immunity conferred upon r...
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Opinion This appeal presents the following issue: Where a former wife receiving public assistance for support of her children assigns to the paying county all her rights to accrued and court ordered child support payments from her former husband, may his defense, that she is estopped to collect child support from him for the period prior to that assignment, also be asserted against the count...
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*148 Opinion Tyrone O., a 17-year-old minor, appeals the order modifying his previous disposition by the juvenile court and committing him to the California Youth Authority (CYA) pursuant to Welfare & Institutions Code section 777. 1 He seeks reversal on the dual grounds that the district attorney denied him due process by failing to notify him it would recommend CYA c...
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Opinion A jury convicted Raymond Wade Robbins of two counts of forcible oral copulation (Pen. Code, § 288a, subd. (c)) 2 and one count of sexual penetration by force (§ 289, subd. (a)). The jury also found he used a deadly weapon (§ 12022.3) and inflicted great bodily injury in the commission of each offense (§ 12022.8). The court sentenced Robbins to the upper term of eight years on each c...
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210 Cal.App.3d 29 (1989) 257 Cal. Rptr. 222 THE PEOPLE, Plaintiff and Respondent, v. ELIODORO V. LOMBERA, Defendant and Appellant. Docket No. B034861. Court of Appeals of California, Second District, Division Two. April 4, 1989. *30 COUNSEL Howard J. Shopenn for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Linda C. Johnson and Robe...
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I agree that absent gross negligence, Government Code section 831.7 immunizes the City of Imperial Beach (City) from emergency rescue service. I disagree, however, that there are no triable factual issues as to the City’s gross negligence. In the interest of brevity I will not belabor what I believe is the misapplication of the standards governing summary judgment to the facts here. (See maj. opn....
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Opinion United Artists Communications, Inc., Vista Theaters, Inc., and General Cinema Theatre Corporation of California (plaintiffs) have appealed from a judgment in favor of the City of Montclair (City) and Ned Crutcher, City’s director of finance (collectively defendants), which was entered following a trial to the court of plaintiff’s action for declaratory and injunctive relief relate...
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209 Cal.App.3d 398 (1989) 257 Cal. Rptr. 229 THE PEOPLE, Plaintiff and Respondent, v. RICKIE ALLEN VAUGHN, Defendant and Appellant. Docket No. C003189. Court of Appeals of California, Third District. April 5, 1989. *399 COUNSEL Raymond L. Girard, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney Gene...
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Opinion Facts and Proceedings Below The Kings County District Attorney filed a complaint against Elnora Levels (appellant) in the Justice Court for the Hanford Judicial District of Kings County on July 26, 1984. Count I alleged that between February 1, 1983, and April 30, 1984, appellant feloniously violated section 11483 of the Welfare and Institutions Code by improperly obtaining aid in excess o...
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Opinion The single question1 we consider is this: when a defendant requests a misdemeanor assault instruction, defining a lesser related offense (People v. Geiger (1984) 35 Cal.3d 510 [199 Cal.Rptr. 45, 674 P.2d 1303, 50 A.L.R.4th 1055]), and the prosecutor, over the defendant’s objection, requests a felony assault instruction, also defining a *389related offense, may the trial court properly gi...
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209 Cal.App.3d 372 (1989) 257 Cal. Rptr. 240 CHARLES ROY HUTCHINSON, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, SUNBANK ELECTRONICS et al., Respondents. Docket No. B035123. Court of Appeals of California, Second District, Division Six. April 5, 1989. *374 COUNSEL Haynes, Olpin, Wilkison & Stone and Donald W. Haynes for Petitioner. Stockwell, Morris, Anderson & Harris and Michael L. Terry...
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209 Cal.App.3d 542 (1989) 257 Cal. Rptr. 263 COLLEEN L., a Minor, Plaintiff and Appellant, v. HOWARD M., Defendant and Respondent. Docket No. B035564. Court of Appeals of California, Second District, Division Seven. April 7, 1989. *543 COUNSEL Zelinsky & Lipton, Donald Zelinksy and Hugh A. Lipton for Plaintiff and Appellant. Blum & Roseman and Mark E. Roseman for Defendant and Respondent. OPINION...
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Opinion Christine R. appeals from judgments declaring her three minor children free from parental custody and control pursuant to Civil Code section 232, subdivisions (a)(1) and (a)(7).1 The minors were all adju*225dicated dependent children of the juvenile court prior to January 1, 1989. (See Welf. & Inst. Code, § 366.26 [procedures applicable to minors adjudicated dependent children on or after...
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Opinion The Orange County District Attorney prosecuted Richard Cook and a codefendant for joint possession of 2.29 grams of cocaine *406 (Health and Saf. Code, § 11350) and possession of the same cocaine for sale (Health & Saf. Code, § 11351). Although early in the proceedings a prosecutor admitted the possession for sale count was weak, he and his successors repeatedly refus...
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Opinion This case involves a dispute between the landlords of a Palm Springs apartment complex (Palacio) and the Palm Springs Rent Review Commission (Commission) concerning the proper application of Palm Springs’ initiative rent-control provisions to the rents to be charged at *118 that apartment complex. The real parties in interest are the tenants of the apartment complex (Tenants). Palac...
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Opinion Paul Duane Coulter appeals from the judgment entered following his conviction by jury of 10 counts of lewd conduct with children under 14 years of age with use of obscene or sexually explicit material. (Pen. Code, §§ 288, subd. (a); 1203.066, subd. (a)(10).) He was sentenced to 26 years in prison. Appellant contends the evidence regarding six counts against one victim was insufficient, ...
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209 Cal. App. 3d 526 (1989) 257 Cal. Rptr. 278 MAGNECOMP CORPORATION, Plaintiff and Appellant, v. ATHENE CO., LTD., Defendant and Respondent. Docket No. B033654. Court of Appeals of California, Second District, Division Seven. April 7, 1989. *530 COUNSEL Richard E.M. Brakefield, Craig R. Arndt and Arndt & Van Patten for Plaintiff and Appellant. Whitman and Ransom, Richard T. Williams and Theo...
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Opinion Appeal from extension of commitment pursuant to Penal Code section 1026.5, subdivision (b). 1 Petition for writ of habeas corpus alleging a denial of effective assistance of counsel at the time of plea and sentencing (Super. Ct. L.A. County No. A449187.) Procedural and Factual Background In 1977 appellant, then 18 years old, having been found not guilty by rea...
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Opinion The issues in this case are: (1) whether an amendment to a lease of tax-exempt real property extending the term of possession from 40 to 66 years is a “change in ownership” under Revenue and Taxation Code, section 61, subdivision (b) thereby permitting a reassessment of the property for property tax purposes; (2) if so, does section 61, subdivision (b) violate the property tax rea...
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*612 Opinion Troy Anthony Patterson appeals his conviction by jury of attempted murder (Pen. Code, 1 §§ 664/187), robbery (§211), attempted robbery (§§ 664/211), and possession of a sawed-off shotgun (§ 12020, subd. (a)) with enhancements for firearm use (§§ 12022, subd. (a), 12022.5). He contends the court erred in 1) failing to instruct the jury that attempted murder requires proof of exp...
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Opinion In this consolidated appeal, we consider the constitutionality of a portion of section 112 of the City Charter of Los Angeles. Section 112 gives a city employee the right to have the disciplinary measures ordered by an official in his or her department reviewed by the board of civil service commissioners (the Board). However, this charter provision limits the ability of the Board to reduce...
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209 Cal. App. 3d 588 (1989) 257 Cal. Rptr. 559 ROBERT HUNTER et al., Plaintiffs and Respondents, v. CITY OF WHITTIER, Defendant and Appellant. Docket No. B029923. Court of Appeals of California, Second District, Division Five. April 10, 1989. *590 COUNSEL J. Robert Flandrick, City Attorney, Burke, Williams & Sorensen, Scott F. Field and Michael J. Long for Defendant and Appellant. Countryman ...
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209 Cal. App. 3d 618 (1989) 257 Cal. Rptr. 286 THE PEOPLE, Plaintiff and Respondent, v. EVAN JEROME RUSHING, Defendant and Appellant. Docket No. D007062. Court of Appeals of California, Fourth District, Division One. April 10, 1989. *619 COUNSEL David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant. *620 John K. Van de Kamp, Attorney General, Steve White, Chief ...
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Opinion Appellant, Alfred Cruz, Jr., appeals from an order holding that he must pay the County of Solano $21,000 for legal services provided to him by the public defender’s office in the defense of a criminal action. He claims that the court erred in computing the amount he should be required to pay. We modify the order and as modified, affirm. Factual and Procedural Background ...
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Opinion Plaintiff Marietta S. Coe (Mrs. Coe) brought suit to recover the proceeds of a life insurance policy on the life of her husband, Lewis R. Coe (Coe). She joined as defendants not only the insurance company (Farmers) but also the agent who sold the policy (Hannify). Her amended complaint stated causes of action for breach of contract and negligent and intentional torts. The trial co...
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Opinion The appeal and cross-appeal at bench involve a dispute arising from the dissolution of marriage and determination of certain property rights of the parties. The pertinent facts leading to the controversy follow: Warren F. Broderick (husband) and Diana L. Broderick (wife) were married on January 17, 1970. They have two children: Ronald, born October 3, 1971, and Sheila, born June 6, 1975. ...
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209 Cal.App.3d 687 (1989) 257 Cal. Rptr. 753 THE PEOPLE, Plaintiff and Respondent, v. HARRY RALPH WORKMAN et al., Defendants and Appellants. Docket No. F008490. Court of Appeals of California, Fifth District. April 11, 1989. *690 COUNSEL Carolyn Morris, John J. Woods and Debra R. Huston, under appointments by the Court of Appeal, for Defendants and Appellants. John K. Van de Kamp, Attorney Genera...
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209 Cal.App.3d 624 (1989) 257 Cal. Rptr. 421 In re RANDI D. et al., Minors. ROGER B., Petitioner and Respondent, v. RANDALL D., Objector and Appellant. Docket No. G005008. Court of Appeals of California, Fourth District, Division Three. April 10, 1989. *626 COUNSEL Kenneth M. Stern, under appointment by the Court of Appeal, for Objector and Appellant. *627 No appearance for Petitioner and Respond...
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Opinion Mario Garcia Alvarez pleaded guilty to possessing heroin for sale (Health & Saf. Code, § 11351) after the court denied his motion to suppress evidence seized at his arrest (Pen. Code, § 1538.5). The court granted Alvarez probation conditioned on his spending 365 days in local custody and paying a $200 fine. Alvarez appeals, contending the evidence seized should have been suppresse...
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Opinion Petitioner prays for peremptory writ of mandate and/or prohibition to compel disqualification of trial judge (Code Civ. Proc., § 170.6) and for stay of criminal trial. 1 Facts On March 24, 1987, the Kern County District Attorney filed felony complaint No. 45642 in West Kern Municipal Court, charging petitioner, a Bakersfield attorney, with two counts of solicitat...
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Opinion Summary Petitioner, Coast Central Credit Union (Coast), is a defendant in an action to foreclose a mechanics’ lien brought by real party, James Lee. Coast moved for summary judgment against Lee on the ground that Lee’s action was not timely filed and on the separate ground that all disbursements made by Coast were secured by its deed of trust which had priority over Lee’...
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Opinion Plaintiffs John Newland et al. appeal judgment dismissing on the ground of no justiciable controversy their action for injunction, declaratory relief and mandate against defendants State of California Department of Health Services (Department) and its director Kenneth Kizer (together the State defendants). We affirm with respect to plaintiffs’ claims involving Health and Safety Co...
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Opinion Question—When should an attorney say “no” to a client? Answer—When asked to file a lawsuit like this one. Master Gavin L. McDonald did not win the Ventura County Spelling Bee. Therefore, through his guardian ad litem, 1 he sued. Gavin alleges that contest officials improperly allowed the winner of the spelling bee to compete. Gavin claimed that had the officials not violated contest...
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Opinion After a contested jurisdictional hearing, the juvenile court found true the allegations under count I, battery on an individual on school property (Pen. Code, § 243.2, subd. (a)), under count II with disruptive presence at a school (Pen. Code, § 626.8, subd. (a)), and in count III with disturbing the peace of a school campus (Pen. Code, § 415.5, subd. (a)). At the dispositional hearing,...
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Opinion In Segura v. United States (1984) 468 U.S. 796 [82 L.Ed.2d 599, 104 S.Ct. 3380], the United States Supreme Court upheld the seizure of incriminating evidence obtained from a private residence under a valid search warrant even though the police had earlier made an unlawful entry into the residence. Since the search warrant had been issued on information obtain...
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Opinion Defendant Sergio Garcia entered an unconditional plea of guilty to the charge of rape. The court sentenced him to the upper term of eight years. On appeal, Garcia challenges the court’s decision to impose the upper term. We affirm. I. Facts Garcia, under the influence of cocaine and alcohol, approached a woman on the street in San Jose and offered her cocaine. When she r...
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209 Cal. App. 3d 467 (1989) 257 Cal. Rptr. 383 ROBERT L. CORNISH, Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; CAPITAL BOND & INSURANCE COMPANY et al., Real Parties in Interest. Docket No. E005996. Court of Appeals of California, Fourth District, Division Two. April 6, 1989. *470 COUNSEL Jones, Mahoney & Brayton, Paul M. Mahoney and Richard A. Soll for Petitioner. *4...
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Opinion Appellant James Kevin Thurman pled guilty to one count of possession of cocaine for sale. (Health & Saf. Code, § 11351.) 1 He appeals the judgment contending the court erroneously denied his Penal Code section 1538.5 motion to suppress. We affirm the judgment. We summarize the evidence the court considered in denying appellant’s motion to suppress. 2 On ...
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Opinion In this case we hold that the Legislature has the power to retroactively extend a civil statute of limitations to revive a cause of action time-barred under the former limitations period. Petitioner August Liebig is the defendant in a suit filed by his granddaughter, real party Lisa Liebig, seeking tort damages for alleged sexual molestation. August demurred to Lisa’s complai...
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Opinion Though defendant was charged in count one with robbery (Pen. Code, §211), 1 and count two with violating Vehicle Code section 10851 (auto theft), the jury returned a verdict of guilty of misdemeanor battery (§ 242) on count one and could not arrive at a verdict on count two, resulting in a mistrial as to count two. One of several prior felonies used to impeach defe...
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Opinion Appellant Barbara Trerice appeals from a judgment in favor of respondents Blue Cross of California (Blue Cross) and Angele Khachadour, on her “complaint for damages” arising from her employment termination. She claims that the trial court erred in granting respondents’ motion for summary judgment. We affirm. Factual and Procedural Background Appellant was hired by Bl...
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Opinion In an information filed in the Superior Court of Alameda County on March 1, 1988, respondent Michael Wayne Jones was charged with possession of a controlled substance in violation of Health and Safety Code section 11350. After respondent’s motion to suppress evidence pursuant to Penal Code section 1538.5 was granted on April 8, 1988, the case was dismissed by the trial court for lack of ev...
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Opinion Petitioners challenge an order denying a motion to require a plaintiff to submit to a biopsy of warts which real parties in interest herein claim were caused by exposure to asbestos. Preliminarily we reply to real parties’ contention that petitioners should be left to their remedy by appeal. We recognize that the prerogative writ is not a favored method of review of discovery orders, and...
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Opinion This is an appeal from an order of the probate court awarding attorney fees for extraordinary services rendered on behalf of a decedent’s estate. (See Prob. Code, § 910.) The question on appeal is whether the award was excessive, either because it violated a settlement agreement negotiated by the attorney or because it constituted a manifest abuse of discretion. We affirm the order for ex...
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Opinion In this case we hold that a labor union which operated a hiring hall referring its members for employment could be joined as a party to the marital dissolution action of one of its members for the purpose of ordering *722 the union to notify the other spouse of such referrals in order to enforce the member’s obligation under a child support order. Joinder and the issu...
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Opinion On this appeal, we enter the fascinating world of real property reassessments after the passage of Proposition 131 to determine whether a corporate reorganization, exempt from state and federal income taxation, results in a “change of ownership” under the Revenue and Taxation Code thereby triggering reassessment of the real property transferred. *896Revenue and Taxation Code section 642 w...
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Opinion J.—In this appeal we determine Welfare and Institutions Code 1 section 366.3 precludes presenting evidence to challenge a juvenile court’s custody order at a review hearing after a permanency plan. A petition under section 388 is adequate means to present such a challenge. I Factual and Procedural Background A petition seeking to declare Heather P. (born August 26, 1981) to be a...
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Opinion Appellant Patrick Zane Glance was charged by information with possessing cocaine for sale in violation of section 11351 of the Health and Safety Code. He was further alleged to have possessed 28.5 grams or more of cocaine for sale and 57 grams or more of a substance containing cocaine within the meaning of Penal Code section 1203.073, subdivision (b)(1). Following the denial of his moti...
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Opinion Plaintiff Gene R. Smith Corporation (Smith) appeals the judgment dismissing all defendants after the court ruled Smith’s causes of action for abuse of process and malicious prosecution for the allegedly wrongful and malicious prosecution of an involuntary bankruptcy instituted by the defendants were preempted by federal law, depriving the trial court of subject matter jurisdiction...
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Opinion The Santa Barbara County Taxpayers Association (TPA) poses two questions regarding county actions under article XIII B of the California Constitution: 1. May the Santa Barbara County Board of Supervisors (Board) recalculate its article XIII B base year (1978-1979) appropriations limitation using an accepted accounting method that is different from the one it originally used? Yes, ...
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Opinion State Farm Mutual Automobile Insurance Company appeals from a declaratory judgment rendered on April 5, 1988, by the court sitting without a jury. The question is whether 1984 amendments to Insurance Code section 11580.2 1 provided underinsured motorist coverage to respondent Wendelyn Campbell by operation of law, even though no such coverage was provided under the express terms of ...
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209 Cal. App. 3d 996 (1989) 257 Cal. Rptr. 646 ENCINITAS PLAZA REAL, Plaintiff and Respondent, v. JAMES S. KNIGHT et al., Defendants and Appellants. Docket No. D007395. Court of Appeals of California, Fourth District, Division One. April 19, 1989. *997 COUNSEL McInerney & Dillon and William A. Barrett for Defendants and Appellants. Monaghan & Metz and Steven G. Amundson for Plaintiff and ...
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Opinion Cross-complainant Kirk Hillman appeals from the post-judgment orders denying his motion for entry of judgment on his cross-complaint and granting cross-defendant and respondent Leland E. Burns, Inc.’s motion to tax costs. We reverse. Procedural/factual Background We have adduced the following from the appellant’s appendix submitted in lieu of the clerk’s and reporter’s t...
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Opinion Defendants Donald Albright, and Paine, Webber, Jackson & Curtis (hereafter Paine Webber) appeal from the denial of their motion to compel arbitration of plaintiffs’ claim under section 17(a) of the Securities Act of 1933 [15 U.S.C.A. § 77q] (hereafter 1933 Act). *1031 Plaintiffs Beatrice L. Elliott, Jeanne E. Hubbard, Roy K. Hubbard, William J. Hubbard, Abdallah Mous...
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209 Cal.App.3d 1075 (1989) 257 Cal. Rptr. 658 THE PEOPLE, Plaintiff and Respondent, v. ROBERT DANIEL THOMPSON, Defendant and Appellant. Docket No. F009754. Court of Appeals of California, Fifth District. April 20, 1989. *1077 COUNSEL Joseph D. Allen, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney ...
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Opinion Richard Coelho appeals from an order sustaining a demurrer without leave to amend. Facts Appellant Richard Coelho, a warden with the California Department of Fish and Game (Department), received a notice of adverse action alleging inefficiency, inexcusable neglect of duty, dishonesty, and other failure of good behavior causing discredit to the employer. Coelho filed a response, and ...
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Opinion Plaintiff/respondent the People of the State of California, acting by and through the Insurance Commissioner (Commissioner) petitioned the superior court for a preliminary injunction, preventing defendants/appellants Nicholas Neu and Michael Gershuny from violating Insurance Code sections 700 (transacting insurance business without a certificate of authority) and 703 (acting for a nonadmi...
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Opinion The Real Estate Commissioner appeals from an order directing him to pay $20,000 to Harold and Alta Temple from the Real Estate Recovery Account. (Bus. & Prof. Code, § 10470 et seq.) 1 The only issue is the amount unpaid on the Temples’ judgment against David S. Kerwin, a real estate licensee “. . . which represents an actual and direct loss to the [Temples] in the trans...
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Opinion Facts and Procedural History Linda Krawitz filed a complaint against Michael Rusch and others for personal injuries she received in an automobile accident in a products liability cause of action. Krawitz filed a first amended complaint which added a *961 negligence cause of action against Rusch. The court sustained Rusch’s demurrer to the first amended complaint with leave to amend....
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Opinion Appeal from order of the trial court denying a motion for relief from the conditions of a writ of mandate. The writ, issued under Government Code section 65755, 1 prohibits the City of Indian Wells (City) from issuing building permits, map approvals, and other discretionary land use approvals until the City brings its general plan into compliance with state law. On appe...
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Opinion This is a timely petition for a writ of mandate pursuant to Code of Civil Procedure section 437c, subdivision (/ ). We grant a peremptory writ in the first instance, holding that there are no damages available to a private litigant under Business and Professions Code section 17203, and that there is no private action under Insurance Code section 790.03, subdivision (h). 1 *1095 Fa...
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Real parties in interest petition for rehearing contending we have omitted or misstated material facts in our opinion filed April 19, 1989. We have reviewed the allegations of the petition and have found them without merit. We deny the petition for rehearing and add the following comments. There has been considerable confusion in this case over the role played by the extrinsic evidence in the tria...
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Opinion The People of the State of California challenge a superior court ruling granting a motion made under Penal Code section 995. The court dismissed both a charge of robbery and an allegation that the robbery “special circumstance” should be used to enhance the punishment for a murder charge. The court ruled that in light of People v. Morris (1988) 46 Cal.3d 1, 20-21 [249 Cal.Rptr. 11...
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209 Cal. App. 3d 1099 (1989) 257 Cal. Rptr. 672 THE PEOPLE, Plaintiff and Respondent, v. JOHN BAUTISTA BERBERENA, Defendant and Appellant. Docket No. A038246. Court of Appeals of California, First District, Division One. April 21, 1989. *1101 COUNSEL Kyle Gee and Henrikson & Gee for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, ...
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Opinion Petitioner, Donald Yurick, seeks a writ of mandate directing respondent superior court to vacate its denial of his motion for summary judgment and to grant the motion. *1119 This proceeding arises out of an action commenced in respondent court by Mary Antonetti (plaintiff). Her complaint names five defendants, including Oroville Hospital (hospital) and petitioner Don...
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209 Cal. App. 3d 732 (1989) 257 Cal. Rptr. 742 ROY GUINNANE, Plaintiff and Appellant, v. SAN FRANCISCO CITY PLANNING COMMISSION et al., Defendants and Respondents. Docket No. A040760. Court of Appeals of California, First District, Division One. March 23, 1989. *734 COUNSEL Charles O. Morgan, Jr., and Jeffrey N. Eckber for Plaintiff and Appellant. Louise H. Renne, City Attorney, Christina L. Dess...
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Opinion City of Redding (Redding), plaintiff below, appeals from a judgment of the Shasta County Superior Court dismissing Redding’s petition for writ of mandate and injunctive relief following the sustaining *1172 without leave to amend of the demurrer of defendant Shasta County Local Agency Formation Commission (LAFCO). The sole issue on appeal is whether LAFCO had a duty t...
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*1133Opinion The People appeal from a judgment dismissing an accusation of willful misconduct in office filed by the grand jury against defendants Joe J. Cherry, Ruth Call Evans and Robert James Elliott, all members of the Board of Trustees of the Orange Unified School District. The accusation alleged misconduct occurring during defendants’ prior terms of office, 1981-1985. Each of the defendants...
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*1152 Opinion Cross-complainant and appellant County of Los Angeles (County) appeals an order dismissing its cross-complaint against cross-defendant and respondent Joe Reyes Guerrero (Guerrero), and granting Guerrero’s motion for determination of good faith settlement (Code Civ. Proc., § 877.6.) 1 - 2 The fact the settlement was entered into well before t...
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Opinion The juvenile court declared John L. a ward of the court (Welf. & Inst. Code, § 602) after finding that he had committed lewd and lascivious acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a)). 1 John, 15 years old, and a neighbor girl, who was 11 and 12 years old at the time, engaged in voluntary consensual sexual activity on at least 3 occasions. John w...
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Opinion A jury convicted David Yorba of various crimes, including murder. In the published portion of this opinion, we consider and reject his complaints concerning admission of forensic and statistical evidence. *1020 I In July and August 1985, 17-year-old Yorba resided with his mother, 2 sisters, and the elder sister’s boyfriend in an apartment at 2082 North Nordic in Orange. During tha...
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209 Cal.App.3d 1057 (1989) 257 Cal. Rptr. 768 ROGER BAKER, Plaintiff and Appellant, v. CHILDREN'S HOSPITAL MEDICAL CENTER et al., Defendants and Respondents. Docket No. A040756. Court of Appeals of California, First District, Division Five. April 20, 1989. *1059 COUNSEL Richard Marlowe for Plaintiff and Appellant. Allen J. Berk, Michele A. Ballard and Pettit & Martin for Defendants and Respon...
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Opinion Following a jury trial, appellant Raymond E. Robinson was convicted of one count of receiving stolen property. (Pen. Code, § 496, subd. 1.) The court found allegations of two prior prison terms to be true. (Id., § 667.5, subd. (b).) Appellant was sentenced to five years in state prison. On appeal, Robinson contends that (1) paint samples scraped from his car were illegally seized without p...
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Opinion This case raises the issue of the authority of a California school district to suspend a school nurse, without prior notice and without pay, after her five-year preliminary health services credential issued by the State of California had expired. By her petition for writ of mandate, respondent Jane Stewart contended her suspension by appellant Acalanes Union High School District (Distri...
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210 Cal.App.3d 67 (1989) 257 Cal. Rptr. 687 THE PEOPLE, Plaintiff and Respondent, v. DOUGLAS ALLAN STEELE, Defendant and Appellant. In re DOUGLAS ALLAN STEELE on Habeas Corpus. Docket Nos. A037962, A041686. Court of Appeals of California, First District, Division One. April 24, 1989. *69 COUNSEL Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van...
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*1269Opinion An attorney files a writ petition with the Court of Appeal pointing out an apparent error of the trial court. The Court of Appeal summarily denies the petition. The bewildered attorney asks, “Why?” If this case does not answer the question, we hope the following rule will at least assuage counsel’s frustration: Error by the trial judge does not of itself ensure that a writ petition ...
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Opinion 1. Introduction Plaintiff United Services Automobile Association (insurer) filed this action against defendants Harry Baggett (insured) and Christina and Hyun Ku Lee (heirs) seeking a declaration of insurer’s obligation under an automobile insurance policy. Heirs had filed an underlying action against insured and another driver for the wrongful death of their decedent...
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Opinion In this case we consider whether members of the public may assert the public trust doctrine in order to compel authorized appropriators of water from a nonnavigable stream to continue their diversion of water but forego their use of the diverted water in order to maintain an artificial reservoir for the recreational use of the public. We hold that the public trust doctrine does no...
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Opinion Toby Gonzales, Jr., appeals from a conviction for residential burglary. We affirm. I On September 23, 1986, shortly after 11 a.m., Janice Borrelli was returning to her condominium in Moraga when she noticed an unfamiliar car parked in the area. As she entered the front door, she saw a pile of her own and her roommates’ belongings a few feet inside. When she called out “hello,” she h...
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Opinion Pedro Q. appeals his California Youth Authority (CYA) commitment. In the published portion of this opinion, we consider his contentions that probation conditions restricting his travel were improperly imposed by the probation officer and were, in any event, unconstitutional. *1371 I In March 1986 Pedro was placed on juvenile probation for assault with a deadly w...
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Opinion Introduction Plaintiff Interinsurance Exchange of the Automobile Club of Southern California appeals from a declaratory judgment in favor of defendant Spectrum Investment Corporation doing business as Budget Rent-A-Car. Statement of Facts The case was tried on stipulated facts, as follows: Defendant is in the business of renting motor vehicles to the general public pursuant to a w...
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209 Cal.App.3d 1359 (1989) 257 Cal. Rptr. 816 L. DALE WATSON, Plaintiff and Appellant, v. WOOD DIMENSION, INC., Defendant and Appellant. Docket No. G004740. Court of Appeals of California, Fourth District, Division Three. April 26, 1989. *1360 COUNSEL Stern & Miller, Stern, Neubauer, Greenwald & Pauley and Russell F. Wolpert for Plaintiff and Appellant. Marjorie G. Fuller for Defendant and Appell...
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209 Cal.App.3d 1289 (1989) 258 Cal. Rptr. 1 H.S. PERLIN COMPANY, INC., et al., Plaintiffs and Appellants, v. MORSE SIGNAL DEVICES OF SAN DIEGO et al., Defendants and Repondents. Docket Nos. D005468, D006265, D006231. Court of Appeals of California, Fourth District, Division One. April 26, 1989. *1291 COUNSEL Roland B. Day and Rand, Day & Ziman for Plaintiffs and Appellants. Stephen D. Marks, ...
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209 Cal.App.3d 1260 (1989) 257 Cal. Rptr. 813 JOHNNIE GRIFFITH, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, MEL ADAMS et al., Respondents. Docket No. B031934. Court of Appeals of California, Second District, Division One. April 26, 1989. *1261 COUNSEL Kenneth H. Rowen for Petitioner. Hopper & Holmes, Douglas R. Holmes, C. Robert Bakke, William B. Donohoe and Neil P. Sullivan for Respo...
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Opinion Defendant Hein Van Luu was charged in an information with assault with a firearm. The superior court granted his motion to dismiss. (Pen. Code, § 995.) 1 The People appeal from the order. (§ 1238, subd. (a)(1).) Defendant claimed in his motion that the magistrate denied him substantial rights at his preliminary examination by violating the 10-day rule set forth in section 859b and by ...
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209 Cal.App.3d 1236 (1989) 257 Cal. Rptr. 824 TUOLUMNE COUNTY DEPUTY SHERIFFS' ASSOCIATION et al., Plaintiffs and Respondents, v. BOARD OF ADMINISTRATION OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM et al., Defendants and Appellants. Docket No. A040367. Court of Appeals of California, First District, Division Five. April 26, 1989. *1237 COUNSEL John K. Van de Kamp, Attorney General, Richard D. Mart...
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Opinion The Board of Retirement of the County of Los Angeles Employees’ Retirement Association (Board) appeals from the judgment granting a writ of mandate compelling the Board to award service-connected disability retirement benefits (retirement benefits) to Jason L. Austin. (Code Civ. Proc., § 1094.5) The sole issue presented on appeal is whether Austin is entitled to interest on the aw...
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209 Cal.App.3d 1464 (1989) 257 Cal. Rptr. 860 Conservatorship of the Person and Estate of GLENNROSE SYMINGTON. PUBLIC GUARDIAN OF ORANGE COUNTY, Petitioner and Respondent, v. GLENNROSE SYMINGTON, Conservatee and Appellant. Docket No. G0005285. Court of Appeals of California, Fourth District, Division Three. April 28, 1989. *1465 COUNSEL Licker & Licker and Mark D. Licker for Conservatee and Appel...
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209 Cal.App.3d 1581 (1989) 258 Cal. Rptr. 96 JONATHAN MITCHELL MORALES et al., Plaintiffs and Appellants, v. D. PAUL FANSLER et al., Defendants and Respondents. Docket No. F010193. Court of Appeals of California, Fifth District. May 2, 1989. *1583 COUNSEL Kahn, Soares & Conway, Dale A. Stern, G. Scott Benker and Leonard Herr for Plaintiffs and Appellants. McCormick, Barstow, Sheppard, Wayte & Car...
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Opinion Statement of the Case Plaintiff City of Santa Cruz (City) appeals from a judgment upholding a resolution by defendant Santa Cruz City Schools Board of Education (Board) that exempts the replacement of lighting fixtures on Santa Cruz High School’s Memorial Field from the City’s zoning controls. Plaintiff *3 claims the exemption was not authorized under Governm...
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Opinion The Labor Commissioner awarded appellant Saliba Ghory overtime and penalty wages from respondents Issa and Nicola AlLahham, individually, and collectively doing business as Lahham Service Center and as Millbrae Mobil, his former employers. After a hearing *1489 pursuant to Labor Code section 98.2, the trial court ordered entry of judgment in favor of respondents. ...
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Opinion Introduction Warren H. Haughey appeals from a judgment of dismissal for lack of standing entered after the probate court sustained without leave to amend the demurrer of Richard Billinghurst, Mary Jane Billinghurst and George M. Stephenson to the second amended contest to probate of the purported will of decedent Margaret H. Lind. Statement of Facts The facts alleged in the second amended ...
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*1551Opinion This appeal involves a federal prisoner awaiting transfer who escaped without force from a county jail, promptly committed a burglary, and received two consecutive sentences for his criminal efforts. The case raises two sentencing issues. The first is whether, given the crimes committed, the imposition of a state term of imprisonment consecutive to a federal term constitutes a “sente...
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Opinion this case we hold that a noncustodial parent’s visitation rights could not be litigated in a child support enforcement action brought pursuant to Welfare and Institutions Code sections 11350.1 and 11475.1. (Statutory references are to this code unless otherwise noted.) Represented by its district attorney, the County of San Joaquin (County) brought this action to determine paternity o...
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Opinion In this case we hold that an order imposing sanctions on an attorney under Code of Civil Procedure section 128.5 cannot be based upon grounds not asserted before its rendition without the attorney having had adequate notice of or opportunity to respond to the threat of sanctions. We also conclude that due process does not necessarily require that a motion for sanctions for alleged...
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Opinion A jury found defendant and appellant Troy Rhodes guilty of having committed arson of an inhabited structure in violation of Penal Code section 451, subdivision (b). Three prior felony convictions were alleged, two of which were found to be true and used to enhance his sentence. He was sentenced to a total of 13 years in state prison. On this appeal from the judgment, we will affir...
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Opinion Appellant San Franciscans for Reasonable Growth (SFRG) and others1 appeal from the superior court’s order discharging its peremptory writ of administrative mandamus which directed respondent2 City and County of San Francisco and its administrative bodies to prepare a supplemental environmental impact report (EIR) in compliance with the California Environmental Quality Act (CEQA)3 and the ...
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Opinion A jury found defendant guilty of burglary of a residence. (Pen. Code, § 459.) Defendant waived a jury on the allegations, inter alia, that he was previously convicted of two serious felonies (Pen. Code, § 667, subd. (a)), and that he has served three prior prison terms (Pen. Code, § 667.5, subd. (b)). The court found all allegations to be true and sentenced defendant to state prison for...
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Opinion Presented for resolution in this original proceeding in mandate is the question of whether a corporate defendant’s written waiver of the statute of limitations which is signed by the corporate defendant’s attorney-agent comports with the requirement of Code of Civil Procedure section 360.5 1 that a waiver of the statute of limitations be “signed by the person obligated....
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Opinion The People appeal from an order setting aside the information charging respondent with possession of a concealable firearm by a felon and possession for sale of marijuana. (Pen. Code, § 12021, subd. (a)); Health & Saf. Code, § 11359.) It is contended: “I. In a motion under Penal Code section 995, it is error to find that evidence was seized in violation of the Fourth Amendment wh...
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Opinion Wife (Carolyn Sue McLucas) appeals from a superi- or court order granting husband’s (Michael Leonard McLucas) motion to discharge arrears and to quash a wage assignment for certain periods during which the trial court found that wife had deliberately concealed the couple’s minor child, Tonya. The trial court ordered return to husband of any moneys received for payment of arrearages which a...
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Opinion We hold respondent Workers’ Compensation Appeals Board (WCAB) erred in concluding the evidence rebutted the Labor Code section 3212.5 presumption that applicant’s heart trouble arose out of and in the course of his employment as a deputy sheriff by respondent County of Ventura. Applicant was employed as a deputy sheriff by defendant County from December 19, 1966, through Augu...
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Opinion Introduction Defendant Antonio Marroquin appealed his conviction in the municipal court for violation of Penal Code section 12025, subdivision (b),1 carrying a concealed weapon. The appellate department of the superior court reversed, construing the statute to require proof of the weapon’s operability, and certified the case for publication. At the request of the Los Angeles City Attorney,...
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Opinion This matter was commenced as an unlawful detainer in the trial court. Based upon certain provisions in a franchise agreement calling for arbitration where a “controversy or claim” arose, defendant moved for an order compelling arbitration. The trial court denied the request and defendant now appeals. Facts Plaintiff and defendant have entered a license agreement for the sales of pla...
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Opinion Statement of the Case and Proceedings Below Appellant Clifford Harold Jones was charged by information No. 349633-8 filed June 26, 1986, with one count of robbery (Pen. Code, § 211, * 1 count I), one count of kidnapping with intent to commit robbery (§ 209, subd. (b), count II), and two counts of robbery committed within a residence (§§ 211/213.5, counts III and IV). The informati...
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210 Cal.App.3d 118 (1989) 258 Cal. Rptr. 130 THE PEOPLE, Plaintiff and Respondent, v. SACRAMENTO BAIL BONDS, Defendant and Appellant. Docket No. C004423. Court of Appeals of California, Third District. May 4, 1989. *119 COUNSEL Brace & Crowdis and David G. Crowdis for Defendant and Appellant. L.B. Elam, County Counsel, and Steven Kaiser, Deputy County Counsel, for Plaintiff and Respondent. OP...
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Opinion Petitioners and appellants filed the present action on behalf of themselves and some 2,400 noncertificated employees of the San Francisco Unified School District (SFUSD) who serve in the capacity of paraprofessionals, commonly known as classroom aides, seeking a writ of mandate which would grant them civil service status under the San Francisco City Charter. Education Code se...
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Opinion Palos Verdes Peninsula Unified School District, Board of Education of the Palos Verdes Peninsula Unified School District and Jack H. Bagdasar, Sally Burrage, Marlys J. Kinnel, Joseph Sanford and Jeffrey N. Younggren, individuals in their official capacity as school board members (hereinafter collectively referred to as the District), appeal from judgment granting motion for peremp...
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Opinion Factual and Procedural Background This case arises under the Educational Employment Relations Act (EERA). The Mt. San Antonio Community College Faculty Association (Association) in 1977 filed an unfair practice charge against the Mt. San Antonio Community College District (District). The charge alleged the District reorganization plan, unilaterally implemented, violated the E...
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210 Cal.App.3d 62 (1989) 258 Cal. Rptr. 127 In re ANDRE G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ANDRE G., Defendant and Appellant. Docket No. A041398. Court of Appeals of California, First District, Division One. May 4, 1989. *63 COUNSEL Steven B. Solomon for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve White, Chief Assis...
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*143 Opinion The victim, Carlos Cornejo, became acquainted with appellant Carol Ann Oliver at a bar. He accompanied her to her home and injected himself with heroin in her bathroom. He then collapsed to the floor unconscious. Appellant had her daughter drag him outside the house. The next morning he was discovered dead in the yard. The cause of death was heroin overdose. App...
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Opinion A jury convicted Angel Provencio of two counts of residential burglary. (Pen. Code, 1 § 459.) The court then sentenced him to prison for a total term of seven years, four months. Provencio appeals, contending the trial court erred in admitting certain hearsay statements tending to identify him as a suspect in the burglaries, in admitting evidence taken in connection with an unlawful...
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Opinion The parents of a minor stipulate in a juvenile dependency hearing that the minor’s testimony in a prior proceeding may be used in the dependency proceeding. Does such a stipulation violate the parents’ right to confrontation and cross-examination when the juvenile court did not obtain a personal waiver of those rights? We hold it does not. Harley D. and Rita D. appeal from an order of the ...
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210 Cal.App.3d 312 (1989) 258 Cal. Rptr. 384 JOHN R. HOWITT, Plaintiff and Appellant, v. COUNTY OF IMPERIAL et al., Defendants and Respondents. Docket No. D007349. Court of Appeals of California, Fourth District, Division One. April 18, 1989. *313 COUNSEL Thistle & Krinsky and Daniel J. Sullivan for Plaintiff and Appellant. Thomas M. Fries, County Counsel, James Calkins, John Lenderman and Marjor...
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Opinion Francis Jackson appeals an order for dismissal entered after demurrers to his second amended complaint were sustained without leave to amend and his claim for punitive damages was stricken. He contends the public policies prohibiting assignment of legal malpractice causes of action and punitive damages claims should not bar this action, based on his characterization of his assigne...
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Opinion Monica A. Balard (appellant) appeals dismissal of her action against Bassman Event Security, Inc. (respondent) after respondent’s demurrer to her second amended complaint was sustained without leave to amend. We accept as true the factual allegations of the second amended complaint. 1 Respondent is a licensed provider of security services and security personnel. ...
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210 Cal.App.3d 192 (1989) 258 Cal. Rptr. 393 THE PEOPLE, Plaintiff and Respondent, v. TERRY LEE HUSTON, Defendant and Appellant. In re TERRY LEE HUSTON on Habeas Corpus. Docket Nos. G003813, G006508. Court of Appeals of California, Fourth District, Division Three. April 19, 1989. *199 COUNSEL Terry L. Huston, in pro. per., and Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, f...
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Opinion Randi Fjaeran (Fjaeran) has appealed from a judgment denying her petition for a writ of mandate which would have compelle respondent San Bernardino County Board of Supervisors (the County) to *437 set aside its decision distributing excess proceeds from a tax sale of real property to real parties in interest Gregorio Estrada (Estrada), Michele Morrow (Morrow) and Sylv...
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Opinion Jesus Orozco Delgado, Jr. was convicted after court trial of trespass and vandalism as lesser related offenses of the charged offense of residential burglary. On appeal from the order granting probation, he contends that both convictions are invalid because he did not consent, either expressly or impliedly, to the uncharged lesser related offenses. For reasons to be stated, we will agre...
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210 Cal.App.3d 471 (1989) 258 Cal. Rptr. 374 ANDRE VADAS, Plaintiff and Appellant, v. MICHAEL SOSNOWSKI et al., Defendants and Respondents. Docket No. H005251. Court of Appeals of California, Sixth District. May 11, 1989. *472 COUNSEL Phyl A. Diri, Nancy B. Miller, James S. Rummonds and Rummonds & Mair for Plaintiff and Appellant. B. James Fitzpatrick, Linda J. West and Williams, Kelly, Polverari...
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210 Cal.App.3d 414 (1989) 258 Cal. Rptr. 482 THE PEOPLE, Plaintiff and Respondent, v. JEFFREY DRUMMOND ANDERSON, Defendant and Appellant. Docket No. D007231. Court of Appeals of California, Fourth District, Division One. May 11, 1989. *418 COUNSEL David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve White, Chief Ass...
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Opinion This is a consolidated People’s appeal and petition for writ of mandate regarding a trial court order granting postconviction diversion to defendant, John Alonzo, pursuant to Penal Code section 1000 et seq. The issues presented are (1) whether a posttrial diversion order is an appeal- *468 able order, and (2) whether the trial court acted in excess of its jurisdiction...
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Opinion Defendant was tried and found guilty of eight counts of second degree burglary (Pen. Code, § 459) and two counts of grand theft auto (Pen. Code, § 487, subd. 3). 1 Additionally, the jury specifically found true the allegation that defendant took property esceeding a value of d$25,000. (§ 12022.6.) The court also found true the allegation that defendant committed an offense while relea...
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Opinion 1. Introduction Plaintiff Benton Boyd, Jr., doing business as Boyd’s Photographic Processing Equipment Sales (dealer) appeals from a postjudgment order awarding defendant Oscar Fisher Company, Inc. (manufacturer) attorney fees of $38,730, prejudgment interest of 7 percent from the delinquent date of a number of invoices amounting to $8,652.89, and costs amounting to $17,876.65. Dealer bro...
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*408 Opinion Plaintiff Sandra L. Barczewski, individually and as trustee of the Sandra L. McDowell-Barczewski Trust (collectively Sandra) appeals from the summary judgment in favor of the defendants Commonwealth Land Title Insurance Company and Union Land Title Company (collectively Commonwealth). We affirm. Factual and Procedural Background This case and related litigation which we will ...
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210 Cal. App. 3d 402 (1989) 258 Cal. Rptr. 265 WARREN STEINKAMP, Plaintiff and Appellant, v. ROBERTA CERRI TEGLIA, Defendant and Appellant. Docket No. A041154. Court of Appeals of California, First District, Division Four. April 12, 1989. *403 COUNSEL Albert E. Polonsky for Plaintiff and Appellant. Nielsen, Merksamer, Hodgson, Parrinello & Mueller, James R. Parrinello and Louise J. Rosen-Garc...
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210 Cal.App.3d 227 (1989) 258 Cal. Rptr. 322 THE PEOPLE, Plaintiff and Respondent, v. TRECINE LANKFORD, Defendant and Appellant. Docket No. A041563. Court of Appeals of California, First District, Division Two. May 9, 1989. *230 COUNSEL Alys Briggs, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney G...
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Opinion Defendant Paul D. Crossman, former senior deputy coroner of Monterey County, appeals from the trial court’s judgment convicting him of three counts of grand theft by a public officer. (Pen. Code, §§ 504/487.) The sole issue presented is whether the trial court correctly determined that the applicable three-year statute of limitations (Pen. Code, § 801) did not bar prosecution of the o...
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Opinion A deputy district attorney declined to go forward at a suppression hearing after the superior court refused to require the defendant to prove standing before taking evidence on the reasonableness of a warrant-less search and seizure. The court then granted the motion to suppress and dismissed when the prosecution indicated it could not go forward at trial. Although we agree the order of...
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210 Cal. App. 3d 571 (1989) 258 Cal. Rptr. 540 In re TEOFILIO A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. TEOFILIO A., Defendant and Appellant. Docket No. F010673. Court of Appeals of California, Fifth District. May 15, 1989. *573 COUNSEL Robert A. Garcia, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Att...
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210 Cal.App.3d 10 (1989) 258 Cal. Rptr. 418 EMIL INSTITORIS, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Appellant. Docket No. B032532. Court of Appeals of California, Second District, Division One. May 3, 1989. *13 COUNSEL Schimmenti, Mullins & Berberian and John J. Schimmenti for Plaintiff and Appellant. James K. Hahn, City Attorney, Gary R. Netzer, Breton K. Lobner and J...
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210 Cal.App.3d 316 (1989) 258 Cal. Rptr. 347 THE PEOPLE, Plaintiff and Respondent, v. WILLIE D. JOHNSON, Defendant and Appellant. Docket No. A041421. Court of Appeals of California, First District, Division Three. May 10, 1989. *318 COUNSEL Robert D. Reichman and Jo Anne Keller, under appointments by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve Wh...
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Opinion The defendants are attorney Kent Froehlich (Froehlich) and Kent Froehlich, a professional corporation, (Corporation; hereinafter collectively defendants). They appeal from a judgment entered in an action originally filed by plaintiff National Secretarial Service, Inc. (National). National filed suit in municipal court and sought to recover approximately $6,448 as the unpaid amount...
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*587 Opinion Ronald Albert McLeod appeals from a judgment of conviction of five counts of grand theft (Pen. Code, §§ 484, 487, subd. 1) and one transactionally related misdemeanor, entered upon his pleas of guilty. He contends that his trial attorney abandoned him with respect to his motion to withdraw his guilty pleas, and that the trial court improperly failed to state reasons ...
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210 Cal. App. 3d 740 (1989) 258 Cal. Rptr. 545 STATE COMPENSATION INSURANCE FUND, Plaintiff and Appellant, v. SELMA TRAILER AND MANUFACTURING COMPANY et al., Defendants and Respondents; IGNACIO GUZMAN et al., Interveners and Appellants. Docket No. F009522. Court of Appeals of California, Fifth District. May 16, 1989. *743 COUNSEL Krimen, Bjornsen & Klein, Phillip G. Kinett, Duane Pang and Rob...
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*564 Opinion Statement of the Case and Proceedings Below On September 24, 1985, Dr. Edmund Musset, an elderly resident of Tuolumne County, hired Mickie Owen, a private duty nurse, to care for him in his home for a few hours three days a week. (Dr. Musset was educated in Berlin and received a degree as a “Dr. of Science.”) Dr. Mus-set’s health progressively deteriorated from September throug...
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Opinion Steve Ryan Moreau filed suit against the San Diego Transit Corporation (Transit), claiming wrongful discharge and intentional and negligent infliction of emotional distress. Summary judgment was granted to Transit based on the trial court’s finding that Moreau was employed under a collective bargaining agreement, his various state causes of action were preempted by section 301 of ...
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Opinion Appellant Martin Mora appeals from the entry of summary judgment in favor of respondent Baker Commodities, Inc. 1 We reverse with directions. Statement of Case The underlying suit arose after appellant was seriously injured when a vessel containing ammonia gas exploded. The vessel was part of a refrigeration system located on the roof of property owned by resp...
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210 Cal.App.3d 784 (1989) 258 Cal. Rptr. 563 THE PEOPLE, Plaintiff and Appellant, v. BARBARA HUDSON, Defendant and Respondent. Docket No. H004185. Court of Appeals of California, Sixth District. May 17, 1989. *785 COUNSEL John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Laurence K. Sullivan and Elena L. Almanzo, Deputy Attorneys General, for Plaintiff and Appe...
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Opinion Petitioner State Farm Fire and Casualty Company (State Farm) seeks a writ of mandate pursuant to Code of Civil Procedure section 437c, subdivision (/), to compel the trial court to order entry of summary judgment in its favor based on the one-year period of limitations in the insurance policies which it issued to real parties in interest (collectively Bolek.) For reasons we shall ...
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Opinion Defendants County of Los Angeles (County) and City of Torrance (City) appeal from the summary judgment entered against them and in favor of plaintiff Thrifty Corporation. Thrifty filed this action for refund of documentary transfer tax and for declaratory relief due to defendants’ insistence that it pay $2,621.85 as a documentary transfer tax growing out of Thrifty having lea...
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Opinion This petition for statutory mandate (Health & Saf. Code, § 11488.4, subd. (h)) 1 in a forfeiture proceeding seeks review of a trial court order partly granting the motion for return of seized property made by claimant and real party in interest Cesario Moraza. The trial court denied return of a handgun but ordered return of currency in the amount of $28,597. The issues ...
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210 Cal.App.3d 1488 (1989) 258 Cal. Rptr. 567 CALIFORNIA COASTAL COMMISSION et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; A.W. HAM, JR., Real Party in Interest. Docket No. D009001. Court of Appeals of California, Fourth District, Division One. May 18, 1989. *1492 COUNSEL John K. Van de Kamp, Attorney General, N. Gregory Taylor, Assistant Attorney General, and Peter H...
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Opinion In his petition for writ of review, John B. Graham contends that respondent Workers’ Compensation Appeals Board (Board) exceeded its power when it granted the petition of respondent Orange County Transit District (Transit District) for credit against Graham’s workers’ compensation award for a settlement Graham received in a malpractice action. This case presents an issue of first ...
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210 Cal.App.3d 803 (1989) 258 Cal. Rptr. 680 THE PEOPLE, Plaintiff and Respondent, v. DARRELL E. POINDEXTER, Defendant and Appellant. In re DARRELL E. POINDEXTER on Habeas Corpus. Docket Nos. E005673, E006140. Court of Appeals of California, Fourth District, Division Two. May 18, 1989. *805 COUNSEL Cynthia M. Sorman, under appointment by the Court of Appeal, for Defendant and Appellant. John K. V...
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Opinion Defendant was charged in Placer County with the crimes of murder and attempted robbery together with an allegation of firearm use. The special circumstance of murder in the attempted commission of a robbery was also alleged. However, the People elected not to seek the death penalty. Following an order of change of venue to Alameda County, the jury returned a verdict finding defendant guilt...
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Opinion This appeal presents causation and coverage questions under an all-risk builder’s risk insurance policy for a construction project. The insurance company, plaintiff Mission National Insurance Company (Mission), paid benefits under the policy of $3,099,744.63 and brought this action to recover those benefits from the owner, defendant Coachella Valley Water District (District),...
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Opinion In these four cases which have been consolidated on appeal for the purposes of briefing, oral argument, and opinion, the Public Guardian of the County of Riverside (Public Guardian) has appealed from various orders of the Riverside County Superior Court allowing and directing payment of attorneys’ fees to the Public Defender of the County of Riverside (Public Defender) for services render...
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Opinion The trial court entered appellant Dennis Pogrebneak’s default and a default judgment against him in an action brought by respondent Monsan Homes, Inc. The underlying action prayed for declaratory relief and to quiet title and arose out of a contract by Pogrebneak to purchase a tract of land in Salinas from Monsan Homes for the price of $635,000. Pogrebneak brought a timely motion for re...
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Opinion This appeal concerns several interpretive guidelines adopted by the California Coastal Commission (the Commission) after January 30, 1977. The subject of the guidelines is not at issue on appeal; rather, the sole question presented is whether the guidelines are subject to review by the Office of Administrative Law (OAL). Factual/Procedural Background Pacific Legal Foundation, a nonp...
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*862 Opinion Appellants Catherine Denise Berkland and James Calla-way Shaw entered pleas of guilty to various drug offenses, after the trial court denied their motions to suppress evidence seized at their residence pursuant to a search warrant. They contend that (1) the failure to suppress the evidence was erroneous; (2) the charges against them should have been dismissed as a result of outra...
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Opinion Here we hold that at a disposition hearing in a dependency case the court must admit and consider hearsay evidence contained in a social worker’s report. Tasman B., a minor child, was made a dependent of the court because of evidence that she had been sexually abused while in the custody of her separated parents, Patti B. and David B. (Mother and Father). (§ 300, 1 subds. (a), (d).)...
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Opinion In this action we determine that when an officer impounds a vehicle and conducts an inventory search of it, the holding of Colorado v. Bertine (1987) 479 U.S. 367 [93 L.Ed.2d 739, 107 S.Ct. 738], requiring that the officer must act pursuant to a standardized procedure, does not require that the procedure be written. Statement of the Case Upon his pl...
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*939 Opinion After Robert Frederick Slack was convicted of driving under the influence of intoxicating beverages (Veh. Code, § 23152, subds. (a) and (b)) and admitted a previous conviction for the same charge, he successfully appealed to the Appellate Department of the San Diego Superior Court. That appellate body found the municipal court erred in determining Slack’s offer of proof was insuf...
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Opinion Vessey & Company, Inc. (Vessey) and Carl Maggio, dba Maggio Farms (Maggio), petition this court under Labor Code section 1160.8 2 for review of Agricultural Labor Relations Board (ALRB or Board) decision 13 ALRB No. 17, which determined Vessey and Maggio, separately and collectively, engaged in lawful bargaining with the United Farm Workers of America (UFW) but violated...
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Opinion Plaintiff Monty Lee appeals from the order of dismissal entered after the trial court sustained without leave to amend the demurrer of defendant Escrow Consultants, Inc. Factual and Procedural History In his original complaint plaintiff purported to plead causes of action for fraud, breach of contract, negligence, and conversion against defendant arising out of plain...
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Opinion William Alfred Jacobs (defendant) appeals from a judgment of conviction following a jury trial at which he was found guilty of attempting to sell heroin (Pen. Code, § 664; Health & Saf. Code, § 11352), a necessarily lesser included offense of selling heroin, the offense charged in the one count information. *1138 We affirm the judgment. Factual Statement At...
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210 Cal.App.3d 1146 (1989) 258 Cal. Rptr. 740 THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; ROGER ALLEN WAGNER, Real Party in Interest. Docket No. B039996. Court of Appeals of California, Second District, Division Four. May 23, 1989. *1147 COUNSEL Ira Reiner, District Attorney, Donald J. Kaplan and Robert W. Carney, Deputy District Attorneys, for Petitioner. No ...
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Opinion Plaintiff Michael Higgins filed a complaint for damages against Leo T. Maher in his capacity as Roman Catholic bishop (Bishop), Maher in his individual capacity, and the Roman Catholic Diocese of San Diego. The general demurrer of all defendants was sustained without leave to amend, the court concluding that the matters embraced by the complaint were ecclesiastical and not within the ju...
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Opinion Nye W. Robertson appeals from a money judgment of $39,675 in favor of La Jolla Boulevard Associates (LJB Associates) entered pursuant to a postjudgment order in this unlawful detainer action. As we shall explain, the judgment must be reversed as it and the order on which it is based are void for lack of jurisdiction. Factual and Procedural Background Once again we view the premises ...
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Opinion A jury found appellant Jerry Lee Darling guilty of burglary. (Pen. Code, § 459.)1 On appeal he argues it was error to admit evidence he was carrying a screwdriver when apprehended. For the following reasons, we affirm. Factual and Procedural Background On August 21, 1987, at approximately 5:30 p.m., Roger Menefee arrived home, entered his house, and left the garage door open. At 7 p.m., ...
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Opinion On January 23, 1985, plaintiff Michael L. Stratton (“plaintiff” and/or “Stratton”) filed a complaint against defendants First National Life Insurance Company (hereinafter FN Life), California Pacific Life Insurance Company (hereinafter CP Life), Continental Association of Resolute Employers (hereinafter CARE), and Does. The complaint stated six causes of action, for (1) declarator...
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Opinion Defendant and appellant Richard Arthur Bruhn pled guilty to petit theft by a person with a prior conviction, a felony. (Pen. Code, §§ 666, 488.) 1 He also admitted a penalty enhancement allegation that he had suffered a previous conviction for receiving stolen property (§ 667.5, subd. (b).) He was sentenced to state prison for the midterm of two years on the theft, plus an additional ...
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210 Cal.App.3d 953 (1989) 258 Cal. Rptr. 746 BETTE SIEGEL et al., Plaintiffs and Appellants, v. AMERICAN SAVINGS & LOAN ASSOCIATION et al., Defendants and Respondents. Docket No. A040504. Court of Appeals of California, First District, Division Two. May 23, 1989. *956 COUNSEL Thomas E. Alborg, Cary L. Dictor, Samuel E. Goldstein and Alborg & Dictor for Plaintiffs and Appellants. Michael D...
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Opinion This appeal concerns the dissemination of sexually explicit messages by telephone recordings available by dialing the number 976. The recordings are offered as part of an information access service which a defendant, Pacific Bell, initiated in August 1983. The service allows business subscribers to specify the price per call that the public is to be charged for messages on diverse...
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Opinion Summary Oil Base, Inc. v. Continental Cas. Co. (1969) 271 Cal.App.2d 378, 389 [76 Cal.Rptr. 594] (Oil Base) holds the statute of limitations on a claim against a liability insurer for breach of its duty to defend commences when a final judgment in underlying litigation against the insured is entered. In Central Bank v. ...
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Opinion Defendant was convicted for the first degree burglary of two houses and the receipt of stolen property taken from those houses in the burglaries. He contends on appeal that his convictions for receipt of stolen property cannot stand, that one of the first degree burglary convictions cannot stand because the house involved had no one living in it, and that the trial court erred in ...
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Opinion Statement of the Case Appellant was charged in an information with the murder of Armando de la Torre (Armando) in violation of Penal Code section 187 (count I); attempted murder of Maria del Carmen Albizures (Maria) in violation of Penal Code section 664/187 (count II); and, alternatively, assault with a firearm on Maria in violation of Penal Code section 245, subdivision (a)(2) (coun...
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*1205 Opinion The Joint Council of Interns and Residents (JCIR) sought a peremptory writ of mandate in superior court to compel the Board of Supervisors of the County of Los Angeles (Board) to rescind a contract with the University of Southern California (USC) for the employment of medical interns and residents at county health care facilities. That agreement essentially provided...
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Opinion This case involves a dispute between a local airport land use commission and a city concerning the commission’s *1282 (non)compliance with certain provisions of the State Aeronautics Act. (Pub. Util. Code, § 21001 et seq.) Appellant (hereafter, the Commission) appeals from a judgment of the superior court granting the petition of respondent (hereafter, the City) for a writ of mandat...
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210 Cal.App.3d 1254 (1989) 258 Cal. Rptr. 783 E.W. BLISS COMPANY, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; MARCO MANUFACTURING, INC., Real Party in Interest. Docket No. B039899. Court of Appeals of California, Second District, Division Three. May 25, 1989. *1256 COUNSEL Chase, Rotchford, Drukker & Bogust, Lawrence O. De Coster and Joan E. Hewitt for Petitioner. No ...
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Opinion Plaintiff (hereafter appellant) appeals from an order of dismissal. We affirm. Factual and Procedural Background Appellant and respondent were formerly husband and wife. On September 28, 1987, appellant filed his first amended complaint for intentional infliction of emotional distress and fraud. Among the allegations of the intentional infliction of emotional distress cause of action were...
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Opinion Defendant, Ronald Earl Price, was charged in count I with having conspired with Michael Sandoval and Larry Badgwell to commit the crimes of transportation of cocaine and possession of cocaine for sale. (Health & Saf. Code, §§ 11351 and 11352.) Twenty overt acts were alleged. Defendant was also charged in count II with transporting or selling cocaine (Health & Saf. Code, § 11352) a...
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Opinion Jacob M. was committed to the California Youth Authority after the court found he committed the offense of burglary (Pen. Code, § 459), among others, Jacob appealed, contending the court failed to designate the degree of burglary and to classify it as either a felony or a misdemeanor. We modified the judgment “to reflect a finding of second degree burglary. [It was] remanded for the cou...
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Opinion The question raised in this appeal is whether a Colorado judgment, inconsistent with an earlier California judgment, should be enforced in this state. Facts The facts are not in dispute. The Underlying Controversy In 1981, defendant (a Marin County resident) purchased a house in Fort Collins, Colorado, from plaintiff. The consideration included defendant’s ...
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Opinion Following denial of his motion to suppress evidence pursuant to Penal Code section 1538.5, defendant Horace Brown entered a negotiated plea of guilty to maintenance of a place for sale of cocaine (Health & Saf. Code, § 11366) and possession of a cocaine derivative (Health & Saf. Code, § 11350, subd. (a)). Imposition of sentence was suspended and defendant was placed on probation f...
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*1356 Opinion In this opinion we consider an issue on remand from the United States Supreme Court. The high court held a landowner is entitled to compensation—not merely injunctive relief—when a court finds there has been an unconstitutional regulatory taking. But the Supreme Court expressly reserved the question whether respondent’s regulatory action in this case amounted to an ...
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Opinion Jane Ellyn Benson appeals from a judgment convicting her of second degree murder. The jury also found true allegations that Benson personally used a firearm (Pen. Code, §§ 1203.06, subd. (a)(1), 12022.5) and was armed with a firearm (Pen. Code, § 12022, subd. (a)). 1 Appellant was sentenced to state prison for a term of from 15 years to life, with a determinate term of 2 years for the...
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Opinion This is an appeal by Parkmerced Company (Parkmerced), real party in interest in the trial court, from a judgment of the superior court granting a second petition for peremptory writ of mandate directed to the San Francisco Residential Rent Stabilization and Arbitration Board (the Rent Board). This second writ commanded the Rent Board to set aside its amended decision, permitted it to reop...
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Opinion In this lawsuit for breach of contract in connection with a lease of commercial property, defendant and petitioner Pay ’N Pak Stores, Inc. (hereinafter, Pay ’N Pak) seeks statutory mandate review (Code Civ. Proc., § 437c, subd. (/)) of a partial summary adjudication. Real parties in interest, Richard and Patricia Miller, are the plaintiffs and former tenants in a shopping center o...
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Opinion The Center for Public Interest Law and Assemblyman John Vasconcellos (collectively, the Center) have petitioned for a writ of mandamus by which they seek to set aside a formal opinion of the Fair Political Practices Commission (FPPC). The FPPC opinion found certain provisions of the “Campaign Spending Limits Act of 1986" 1 ,Proposition 68 on the June 1988 ballot, ineffe...
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Opinion American Horse Protection Association, Inc. and Nevada Federation of Animal Protection Organizations (hereafter collectively AHPA) sought to remove the State of Nevada as trustee of a testamentary trust allegedly created by the holographic will of a California resident. After Nevada successfully moved to quash service of summons in the trial court, AHPA filed a virtually identical action i...
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210 Cal.App.3d 1395 (1989) 259 Cal. Rptr. 17 THE PEOPLE, Plaintiff and Respondent, v. ROBERT J. ANDRINO, Defendant and Appellant. Docket No. F009926. Court of Appeals of California, Fifth District. May 26, 1989. *1397 COUNSEL Blackmon & Drozd, Dale A. Drozd and Steven Meinrath for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Ja...
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Opinion We reverse the judgment declaring the University of California in violation of the federal Hatch Act of 1887 (7 U.S.C. § 361a et seq.). The University of California is not required to establish an administrative process to ensure that Hatch Act funds for agricultural research are expended so as to give primary consideration to the needs of the small family farmer. *1248 The Californ...
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Opinion In the instant appeal, defendants Cigna Healthplans of California, Cigna Hospital of Los Angeles, Dr. Charles Hunter, and Dr. Edward King challenge the orders of the trial court denying their petition to compel arbitration and their motion for reconsideration. The latter order resulted in an imposition of sanctions in the amount of $750 pursuant to Code of Civil Procedure section 128.5. Th...
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Opinion Despite its title, the case before us does not involve the relative merits of precious metals in the commodities market, 1 but instead whether an unsuccessful attempt to disqualify an attorney from further representation of a party to a civil suit may form the basis for an independent action for abuse of process and malicious prosecution. *20 Attorney Lawr...
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Opinion Following a court trial, Raul Avina was convicted of two counts of committing lewd and lascivious acts upon his daughter, a child under the age of 14 (Pen. Code, § 288, subd. (a)) and two counts of incest (Pen. Code, § 285). The court also found that Avina was ineligible for probation because he had occupied a position of special trust and had committed acts of substantial sexual conduc...
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Opinion Defendants Oakland Raiders, Ltd., and Allen Davis appeal judgment after jury trial favoring plaintiff Eugene V. Klein on his complaint for malicious prosecution. Klein appeals an order granting a new trial unless he consented to reduction of damages. We reverse the judgment with directions to the superior court to enter judgment favoring the Raiders and Davis. We dismiss as moot K...
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*1556 Opinion Plaintiffs, Donald Miller, Jr. and Sandra Miller, appeal the grant of summary judgment in favor of defendants Pepsi-Cola Bottling Co. and Steven Lawrence. On April 26, 1984, the Millers filed a complaint against Pepsi and Lawrence alleging that Donald Miller had been wrongfully terminated from his employment with Pepsi. Donald Miller asserted a contract cause of action for bre...
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Opinion By this petition, State Farm Mutual Automobile Insurance Company (State Farm) asks us to direct the trial court to enter its order granting State Farm’s motion for judgment on the pleadings in a bad faith action brought by the real parties in interest Saul Ortega (Saul) and Ruben Ortega (Ruben; collectively plaintiffs) pursuant to Insurance Code section 790.03, subdivision (h). ...
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Opinion Elizabeth R. Niklas, the petitioner in a marital dissolution proceeding (hereinafter referred to as wife), and her attorney, Stuart B. Walzer, appeal from an order finding they failed to comply with court-ordered discovery and imposing monetary sanctions. They contend (1) a March 30, 1988, discovery order violated the attorney work-product doctrine and attorney-client privilege, a...
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*1415 Opinion The sole issue presented by this appeal is whether the trial court abused its discretion in awarding attorney fees under section 1021.5 of the Code of Civil Procedure. 1 Respondent Rosella Mandicino filed a petition for writ of mandate under Elections Code section 5025, against the San Pablo City Clerk, challenging as false and misleading six ballot arguments submitted by ap...
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Opinion In this case we decide whether the postdissolution employment separation allowance paid to a former spouse should be characterized as community or separate property. I Neil and Priscilla Lawson (Husband and Wife) were married on July 1, 1960, and separated June 11, 1985. Judgment of dissolution was entered on July 29, 1986. Husband’s employment with Shell Oil Company commenced in 19...
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Opinion This appeal by the City of Los Angeles and its chief of police arises out of disciplinary proceedings initiated by the Los Angeles Police Department (LAPD) against respondent James L. Holcomb. Holcomb is a Los Angeles Police Officer. On August 13, 1985, Lieutenant York of the LAPD sent a message to Holcomb and his partner, who were in a police vehicle, to return to the police station....
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Opinion Defendant Juan Viguri appeals a default judgment favoring plaintiffs Jade K. and his mother Elizabeth Billick (together K.). Viguri also appeals a prejudgment order denying his motion to vacate default. Viguri further appeals a postjudgment order denying his motion to reconsider the order denying his motion to vacate default. We find Viguri’s appeal from the default judgment and t...
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*106Opinion Husband appeals from an order denying his motion to classify certain debts satisfied with his postdissolution separate property as community obligations. Claudia Mirken and Clement Hirsch were married in 1963 and separated in 1970. Prior to and during the marriage, Clement owned shares of stock in the Bank of Los Angeles and served on its board of directors. In 1966, the bank merged wi...
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Opinion This appeal is from a declaratory relief action between appellant, Western Carriers Insurance Exchange (Western), and respondent, Pacific Insurance Company (Pacific), regarding the respective obligations of the parties arising out of an accident for which policies of both insurers provide coverage. The issues on appeal concern the interpreta *114 tion of Insurance Cod...
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*135 Opinion Introduction Plaintiff and appellant Marilyn Bennett (Bennett), an uninsured motorist involved in an automobile collision, obtained an arbitration award of $13,500 as recompense for personal injuries caused by the negligent driving of defendant and respondent Neil Roy Bodily (Bodily). Alleging personal injuries arising from the same collision to himself, Bo...
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Opinion Regis Builders, Inc. (Regis), constructed a single-family residence in San Diego which was purchased by Mark and Lisa Oliver (Oliver). Sometime later, deficiencies began to appear and Oliver brought suit for negligence, breach of implied warranty, strict liability and negligent misrepresentation. A second amended complaint added a cause of action for fraud. Regis brought a mo...
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Opinion In this appeal from a summary judgment in favor of an insurer, we are called upon to determine whether a clause in an automobile liability insurance policy which excludes coverage for bodily injury to a relative of the insured who is a resident of the insured’s household is sufficiently clear and unambiguous so as to eliminate any obligation on the part of the insurer to defend and indemn...
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*168Opinion In this appeal from an order following judgment in condemnation we are called upon to resolve a question specifically left unanswered by the Supreme Court in Redevelopment Agency v. Gilmore (1985) 38 Cal.3d 790 [214 Cal.Rptr. 904, 700 P.2d 794]. When a condemning authority deposits with the court an amount as probable compensation, and the property owner chooses not to withdraw the dep...
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Opinion This case presents another variation on the all-too-recurring theme of intrafamilial sexual abuse. Here, a mother (Gladys Bergschneider) and stepfather (Frank Henry Bergschneider) were charged *150 with multiple counts of forcible sexual abuse of 14-year-old Tonia, Gladys’s slightly mentally retarded daughter of an earlier marriage. 1 The jury found both de...
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Opinion Nichole Fortman, a minor, sustained permanent and extensive injuries when she was ejected from her parents’ jeep after inadvertently unlatching the passenger door while the car was in operation. The door, which was rear-hinged and front opening, caught the wind and flew open ejecting Nichole, who had snagged her sleeve on the door handle. She fell to the street and was run over by...
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Opinion I. Preliminary Statement This appeal involves the denial of a conditional use permit (hereafter CUP) to operate an adult cabaret, an establishment which offers nude or semi-nude entertainment. The court below, the Honorable Miriam A. Vogel judge presiding, denied the petition of appellant T.M. Smith, doing business as The Shangri-la (hereafter Smith) for a writ of mandate to set asi...
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Opinion Statement of the Case An information charged Cecil Burrell Washington, the appellant, with one count of forcible rape and a second count of assault with a deadly weapon, a wrench. (Pen. Code, §§ 261, subd. (2), 245, subd. (a)(1).) 1 The rape count additionally alleged that appellant was armed with a deadly weapon and inflicted great bodily injury on his victim, Linda S. (§§ 12022.3 ...
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Opinion The Attorney General of the State of California obtained a civil judgment and permanent injunction against defendants for engaging in unfair competition and making false and misleading statements. (Bus. & Prof. Code, §§ 17200, 17500.) 1 A civil penalty of $100,000 was imposed for the statutory violations on all defendants, 2 jointly and severally. (§§ 17206, ...
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Opinion In these consolidated petitions for writ of mandate, Del Oro Hills, a California general partnership, and Building Industry Association of San Diego, a California nonprofit corporation (collectively, BIA), in connection with their consolidated actions for declaratory and injunctive relief, seek to compel the San Diego County Superior Court to grant their motions for summary judgment and...
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Opinion Defendant solicited an undercover police officer to murder two persons. He complains on appeal of insufficient corroboration of the solicitation, of erroneous admission in evidence of a tape-recorded statement which he made to the police, and of multiple convictions for what was only a single act of solicitation. The judgment is affirmed. Statement of Facts Viewed in a light mos...
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*362 Opinion Introduction For nearly 60 years, the City of Monterey Park operated its public library, the Bruggemeyer Memorial Library of Monterey Park, in compliance with the Municipal Libraries Act (Ed. Code, § 18900 et seq.). By city ordinance enacted on October 12, 1987, the city ceased to do so. Respondents, a nonprofit corporation, and three incumbent members of the board of library t...
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Opinion William Hamilton Wood was convicted in a jury trial of driving under the influence. (Veh. Code, § 23152, subd. (a).) He was not charged with violating Vehicle Code section 23152, subdivision (b). He appeals contending that the trial court committed reversible error by instructing the jury with the .10-percent presumption in the statutory language of Vehicle Code section 23155, subdivision ...
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Opinion Trailmobile Inc. (defendant) moved the trial court for an order dismissing the complaint on the grounds that service was not accomplished within two years after commencement of the action. (See Code Civ. Proc., §§ 583.410, 583.420, subd. (a)(1).) The superior court denied the motion and a request for reconsideration, thereby precipitating defendant’s petition to this court. Becaus...
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Opinion Petitioner County of Butte (County), on behalf of Brian S., a minor, filed this action against real party in interest, Richard Filipowicz, to establish paternity and to obtain reimbursement for public assistance paid by County on behalf of minor. (Welf. & Inst. Code, *557 § 11350.1; Civ. Code, § 248.) 1 Filipowicz denied paternity and requested a jury trial...
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Opinion Defendant Los Angeles County Employees Retirement Association (the Board) appeals the judgment ordering it to accept and process the application for disability retirement of plaintiff Alvin Weissman (Weissman). Weissman also appeals, contending the court erred when it denied him an award of attorney fees. For the reasons discussed below, we affirm the judgment. Facts The facts are u...
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Opinion This is an appeal from a judgment in an action to determine the existence of a father and child relationship, under the Uniform Parentage Act (Civ. Code, §§ 7000-7021), by the mother of the child, Nancy McNelis. The judgment determined that Tom Jermstad is the natural father of McNelis’s newborn daughter and awarded custody to him. McNelis claims a right to place the child for adoption ...
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Opinion Pursuant to a plea bargain, defendant pled guilty to rape, sodomy, genital and anal penetration by foreign object, assault by means of force likely to produce great bodily injury, and burglary (Pen. Code, §§ 261, subd. (2), 286, subd. (c), 289, subd. (a), 245, subd. (a)(1), and 459, respectively); as a part of the bargain, an oral copulation charge was dismissed and the People agreed no...
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Opinion Introduction On August 5, 1987, plaintiff Daniel E. Dyer filed a complaint for breach of contract, breach of the implied covenant of good faith and fair dealing, and for violation of Insurance Code section 790.03 against defendant Northbrook Property and Casualty Insurance Company (Northbrook), Central Mutual Insurance Company, and 200 unnamed defendants. On November 17,...
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Opinion Did defendant’s possession at the same time and place of two sawed-off shotguns constitute two separate violations of former Penal Code section 12020, subdivision (a)? We hold it did not, so that one of defendant’s two convictions of that offense must be reversed. (All further statutory references to sections of an undesignated code are to the Penal Code.) A jury convicted defendant L...
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Opinion Nearly four years after he was denied appointment to the cardiology section of the Los Angeles County-University of Southern California Medical Center (County/USC Medical Center) as a physician specialist, plaintiff Dr. Robert Barndt, Jr., initiated this action against defendant County of Los Angeles (county) to specifically enforce the terms of a settlement agreement entered into by th...
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210 Cal.App.3d 1095 (1989) 259 Cal. Rptr. 65 UNITED FIREFIGHTERS OF LOS ANGELES CITY et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES et al., Defendants and Appellants. Docket No. B027960. Court of Appeals of California, Second District, Division One. April 26, 1989. *1100 COUNSEL James K. Hahn, City Attorney, Frederick N. Merkin, Assistant City Attorney, O'Melveny & Myers, John F. ...
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Opinion After an unsuccessful motion to suppress evidence (Pen. Code, § 1538.5) defendants Donald J. Derello and David Wayne Taylor proceeded to jury trial on the joined charges of transporting cocaine, in violation of Health and Safety Code section 11352. There were further allegations that each of these defendants was ineligible for probation (Pen. Code, § 1203.073, subd. (b)(6), (7).) The ju...
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*1425 Opinion This appeal concerns the lawfulness of measures adopted by the State Water Resources Control Board (Water Board) to prevent increased surface runoff of water carrying soil products into Lake Tahoe, caused by the increased land coverage of new development, from turning the lake from clear blue to turbid brown. The Lake Tahoe Basin Water Quality Plan (Plan) establishe...
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Opinion Defendant William Reynolds was charged by amended information with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and with false imprisonment (Pen. Code, §§ 236, 237). It was alleged he personally used a knife (Pen. Code, §§ 667, 1192.7) and inflicted great bodily injury to the victim (Pen. Code, § 12022.7) in the commission of these offenses. Reynolds was also charged wi...
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Opinion Introduction By enacting the Relocation Assistance Act, the Legislature has provided that a public entity which acquires real property for public use must supply relocation assistance to any person, business, or farm operation displaced as a result of the acquisition. (Gov. Code, § 7260 et seq.)1 A “displaced” person includes one whose right of possession to real property arose after the...
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Opinion Andre Johnson appeals from a judgment of conviction of one count of possession of cocaine for sale (Health & Saf. Code, § 11351.5). The jury also found true an allegation under Penal Code section 1203.073, subdivision (b)(5), which restricted appellant’s eligibility for probation. After denying appellant’s motion for a new trial, the court denied probation, sentenced appellant to the lowe...
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Opinion Appellant Mid-Century Insurance Company (Mid-Century) filed an action for declaratory relief against its insured, Mario Maldonado, and Debbie Bash (Wife or respondent), a plaintiff in an underlying action for personal injuries. The trial court ruled, upon stipulated facts, that Mid-Century’s policy provided separate “per person” policy limits of $15,000 to cover Bash’s claim for loss of...
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Opinion Michael Todd Swanson and Gustau Swanson petition this court for a writ of prohibition following the denial of their motion pursuant to Penal Code1 section 995. They contend that their motion to quash search warrants of their residences should have been granted on the ground that the affidavit supporting the warrants was sealed in its entirety. We agree and also conclude that the good faith...
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Opinion In this People’s appeal, we examine the question whether the act of a police officer in seizing defendant’s wrist and removing his hand from his pants pocket was lawful. Facts The facts are uncontroverted: On the afternoon of October 14, 1987, San Francisco Police Officer Peter Siragusa received an anonymous telephone tip that Pedro Rosales and Jose Rosales were selling heroin out...
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Opinion Dennis R. and Mary Ellen Hardin appeal from order directing that a dispute between them and State Farm Fire and Casualty *503 concerning the amount of loss caused by a January 1987 fire to the Hardin property be submitted to appraisal arbitration, and denying the Hardins’ cross-petition for an order setting the scope of arbitration. Facts In January 1987, fi...
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Opinion By way of petition for writ of mandate, petitioner Commonwealth Mortgage Assurance Company (CMAC) challenges rulings of the superior court granting the motion of real parties Ronald and Elizabeth Sampson (Sampsons) for summary adjudication of issues, and barring CMAC’s cause of action against Sampsons for breach of contract, and from recovering punitive damages on its first cause ...
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213 Cal. App. 3d 156 (1989) 259 Cal. Rptr. 414 BYRON DANIEL CRAWFORD, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Respondent. Docket No. B036621. Court of Appeals of California, Second District Division One. June 13, 1989. *160 COUNSEL Patterson, Belknap, Webb & Tyler, Edward M. Rosenfeld, Helmut F. Furth, Donald G. Norris, Roberta M. Klein and Roger M. Rosen for Petitioner. Richard W...
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Opinion I. Introduction In this case we affirm a judgment of conviction on 25 counts of first degree murder and hold, among other things, that (1) systematic but non-purposeful denial of a fair cross-section of the community in the selection of a grand jury does not require reversal absent prejudice relating to the conviction, and (2) the consular privilege to withhold evidence in cr...
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*597 Opinion These petitions result from rulings by the superior court denying defense motions for summary judgment. Max F. Salem, Barbara Salem and Tad Dambrosi constitute one set of petitioning defendants; Southland Corporation is the other petitioning defendant. Since the petitions relate to the same superior court case, and since they raise the same principal issue, we consol...
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Opinion Plaintiff and defendant are both lawyers. Plaintiff, Jack Allen Thompson (Thompson), brought the present action to recover a referral fee pursuant to an agreement he had with defendant, Hal W. Williams, Jr. (Williams), individually, and as agent for defendant Pollack Lintz Williams, Inc. (Pollack Lintz Williams), a law corporation. In pretrial discovery, Thompson’s deposition was ...
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Opinion The question presented by this appeal is whether, as a matter of law, a plaintiff is barred from recovering for injuries she sustained as a result of biting into a piece of bone hidden inside a hamburger patty. Facts Plaintiff/appellant Patrice F. Evart broke a tooth when she bit into a “hard substance” in a hamburger sandwich at a restaurant. Although Evart does not kno...
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Opinion Pursuant to Penal Code section 1238, subdivision (a)(8) 1 , the People appeal from the trial court’s order dismissing the information charging defendant Benigno Zamora Sanchez in count III with possession of a concealable firearm by a person previously convicted of assault with a deadly weapon or force likely to produce great bodily injury (Pen. Code, § 12021.1). 2 For the reasons s...
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*525 Opinion Charged with possession of cocaine for sale (Health & Saf. Code, § 11351.5) and a prior conviction for a drug related offense (Health & Saf. Code, § 11370.2), defendant was found guilty by a jury of the possession offense and admitted the prior conviction. He was sentenced to the middle term of four years for the possession and a consecutive term of three years for t...
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Opinion Here we hold [{/]] * that in arriving at a support order in a marital dissolution case, the court must consider the contributions made by a nonmarital partner to a party’s expenses. *630 Joseph A. Tapia 1 and Linda M. Tapia dissolved their 23 year marriage. Linda appeals the order of the trial court awarding her $306 per month in spousal support. In making its support order, t...
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*636 Opinion Defendant was convicted after a jury trial of burglary (Pen. Code, § 459) and two counts of felonious assault respectively upon Inez McLeod and Jay Donald McLeod. (Pen. Code, § 245, subd. (a).) He was sentenced to the six-year upper term for burglary and a four-year upper term for each assault. The court ordered the terms to run consecutively and stayed all but one-third of the m...
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*458 Opinion I Introduction The Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. § 1001 et seq.) 1 comprehensively regulates employee pension and welfare benefit plans. ERISA protects the participants of such plans by requiring disclosure to participants, establishing standards of conduct and fiduciary duties, and providing for remedies,...
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*696 Opinion We review an order in which the Workers’ Compensation Appeals Board (Board) determined the Rehabilitation Bureau (Bureau) lacked jurisdiction to award further vocational rehabilitation benefits because the Bureau had previously closed applicant’s case and his request for further benefits was filed more than five years after the date of injury. Since the record reflec...
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Opinion The Civil Discovery Act of 1986, Code of Civil Procedure section 2016 et seq. (Stats. 1986, ch. 1334, § 2 and ch. 1336, § 2) rewrote the statutes governing pretrial disclosure of expert witnesses. We consider a portion of the new statute. Under former law (Code Civ. Proc., §§ 2037-2037.9; Stats. 1978, ch. 1069, § 1, p. 3285, amended by Stats. 1980, ch. 552, § 1, p. 1535; Stats. 19...
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Opinion Statement of the Case This case involves the sale of an automobile by one dealer to another. In a nine-count misdemeanor complaint filed November 2, 1987, defendant was charged with violations of Vehicle Code section 59011 (failure of a dealer to *Supp. 21give notice to the Department of Motor Vehicles (hereafter DMV) within five days of a sale or transfer of a vehicle), Penal Code section...
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Opinion California regulates the transportation and disposal of hazardous waste through the Hazardous Waste Control Act. (Health & Saf. Code, 1 § 25100 et seq.; Cal. Code Regs., tit. 22, § 66001 et seq.) The act affixes criminal liability for violation of a standard of ordinary care. We hold that the act is constitutional, that it is not vague or ambiguous, that it does not unl...
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Opinion I Statement of the Case Appellant David P. appeals from a judgment of the San Francisco Juvenile Court terminating his parental rights under Civil Code section 232, subdivision (a)(7). We reverse the judgment. We hold the trial court committed reversible error in denying appellant the right to contest charges of *663 physical and sexual abuse of his two ...
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Opinion Francisco Nunez appeals from the summary judgment in favor of defendant Andre R’Bibo. The question is whether appellant’s claim for negligence and premises liability is negated by the doctrine of implied assumption of the risk. Concluding that the answer is “yes,” we affirm. The summary judgment motion is used to determine the existence of triable issues of material fact. The motion s...
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Opinion Defendant, Mehry Danial (Danial), the owner of real property located in the Bel Air section of Los Angeles, appeals a judgment entered in favor of plaintiffs Don Searle, Jr. (Searle, Jr.), an adjacent landowner, and Wayne R. Reiner (Reiner), the prospective purchaser of Searle, Jr.’s interest. Plaintiffs instituted this action in order to determine the *686 enforceabi...
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Opinion Cross-defendant County of San Diego (County) appeals from a judgment in favor of cross-complainants City of Santee (San-tee) and Southwest Signal Company (Southwest), and from the order denying County’s motion for judgment notwithstanding the verdict. The judgment required County to indemnify cross-complainants, jointly, in an amount representing 9 percent of the settlement sum pa...
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Opinion Introduction This appeal raises the issue of whether an investment banking firm which specializes in mergers and acquisitions must possess a real estate broker’s license when negotiating the sale of a business opportunity offered by a corporation seeking to transfer all of its stock to a prospective buyer. We hold that they must so possess. Factual and Procedural Backgro...
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Opinion Plaintiff Ellison Miles appeals from the order of dismissal entered in favor of defendant Glen Speidel. That dismissal was entered following the trial court’s order granting defendant’s motion to dismiss due to plaintiff’s failure to bring this action to trial within five years. (Code Civ. Proc., § 583.310.) Defendant has not filed a respondent’s brief even though he has been advi...
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*909 Opinion In this case we are asked to consider the denial of presentence custody credit in a dual custody context in light of our Supreme Court’s recent decision in In re Joyner (1989) 48 Cal.3d 487 [256 Cal.Rptr. 785, 769 P.2d 967]. Defendant was sentenced to four years in state prison following revocation of probation. He received no credit for a period prior to sentencing during whic...
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*643 Opinion Defendant Terry Lee Harris (appellant) stands convicted by jury of first degree murder. On appeal he challenges the admission of postarrest statements made to law enforcement officials after exercising his right to remain silent. We conclude that appellant’s first statement was inadmissible under the factual standard articulated in Michigan v. Mosley (1975) 423 U.S. 96 [46 L....
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Opinion Plaintiff and appellant The People of the State of California (the People) appeal the dismissal of a misdemeanor complaint which alleged defendant and respondent Julie Masie Baca (Baca) had driven a vehicle while under the influence of alcohol or drugs and had driven a vehicle with .10 percent, or more, of alcohol in her blood. (Veh. Code, § 23152, subdivisions (a), (b).) The complaint fur...
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Opinion We review a decision of respondent Workers’ Compensation Appeals Board (Board) denying applicant James Hansen’s petition for removal. The Board determined an order requiring applicant to appear for a defense medical examination in Los Angeles, approximately 185 miles from *719 applicant’s residence in Arroyo Grande, complied with Labor Code section 4051, and Code of Civil Procedure se...
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Opinion Defendant contends the manner of execution of a search warrant at her home was unreasonable. We agree and reverse the conviction that was based on evidence seized during the search. Facts Riverbank police officers obtained a search warrant for defendant’s home based on information that she was selling drugs from the home. The warrant permitted nighttime execution. On August 26, 19...
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*840 Opinion In this case we determine that Civil Code section 2941 1 permits a homeowner, upon satisfaction of the obligation secured by a deed of trust, to recover damages for emotional distress from the assignees of the beneficiary for their refusal to execute and deliver to the trustee a request for full reconveyance. Accordingly, we aifirm the judgment in favor of plaintiff Rafael R. P...
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Opinion Appellant Joseph M. Wasko is an inmate at the California Men’s Colony (CMC). He appeals from the denial of a petition for writ of mandate requesting that the court order respondent California Department of Corrections to set aside its decision denying his administrative appeal from a diagnostic unit evaluation (DUE) prepared by G. E. Miller or in the alternative to strike all portions o...
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Opinion Appellant Santiago Valdez Moreno appeals following his conviction on 12 counts of committing lewd and lascivious acts upon children under the age of 14 years (Pen. Code, § 288, subd. (a)) 1 and two counts of sodomy (§ 286, subd. (c)). He contends (1) the prosecution presented unspecific evidence insufficient to sustain conviction on 10 of the counts; (2) the convictions on counts 12 t...
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Opinion Plaintiff and appellant Frances Wilson (Wilson), special administrator for the estate of Millie C. Williams (decedent), appeals a judgment in favor of defendants and respondents Ronald Steele and Ken Steele (collectively, the Steeles). The issue presented is whether a contractor’s unlicensed status is a defect which may be asserted against the contractor’s assignee who is a h...
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Opinion Plaintiff and appellant Craig Johnson (Johnson) appeals the summary judgment entered in favor of defendant and respondent Berkofsky-Barret Productions, Inc. (BBP). 1 Because the evidence conclusively shows an employment relationship between Johnson and BBP, Johnson is limited to workers’ compensation as *1070 his sole and exclusive remedy for work-related...
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Opinion This action was brought by real party Manuel Abascal, on behalf of himself and others similarly situated, to challenge the legality of certain fees charged by petitioner Dean Witter Reynolds, Inc. (Dean Witter) in connection with self-directed individual retirement accounts (IRA’s). By this petition in mandamus, Dean Witter seeks to set aside the trial court’s order permitting the...
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Opinion Defendant Kenneth Kizer, the Director of the California Department of Health Services (Department), appeals an attorneys’ fee award (Code Civ. Proc., § 1021.5) 1 of $97,675.50 to plaintiff, Californians for Responsible Toxics Management (CRTM), as successful party in a suit brought by CRTM as a private attorney general against the Department and the International Techno...
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Opinion By their initial petition for a writ of mandate or other extraordinary relief (B038583), Francis Ford Coppola (Francis), Eleanor Coppola (Eleanor), Zoetrope Productions (Zoetrope), and Hollywood General Studios, Inc. (HGS; collectively, defendants) 1 seek to overturn respondent court’s order dated November 21, 1988, granting summary adjudication of certain issues. By a ...
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Opinion Ahmad S. Homami sued Mansoor Iranzadi to collect the balance due on a promissory note. Iranzadi claimed he had paid down the principal balance by approximately $40,000. Homami acknowledged receiving that amount but claimed the payments represented interest only. The note expressly provided: “This note shall bear no interest.’’ But Homami testified at trial that the parties nonethe...
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Opinion Respondent Norman A. Tergeson was a candidate for fourth district supervisor in the County of Tuolumne at the June 7, 1988, primary election. The contested election was for an open seat; he received 51.6 percent of the votes cast. Contestant and appellant Douglas I. Daniels, an elector and registered voter in the supervisorial district, filed this proceeding contesting the el...
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211 Cal.App.3d 1096 (1989) 260 Cal. Rptr. 71 THE PEOPLE, Plaintiff and Respondent, v. EDUARDO ECHEVERIA GARCIA, Defendant and Appellant. Docket No. D008206. Court of Appeals of California, Fourth District, Division One. June 26, 1989. *1097 COUNSEL Paul W. Blake, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve White, Chief Assist...
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Opinion Kelly and Reginald R. appeal from a judgment declaring their son, Jonathan R., permanently free from their custody and control under Civil Code section 232, subdivision (a)(7).1 On appeal they contend that (1) the trial court ignored present circumstances in its finding that returning the child to their custody would be detrimental to the child, and that they were not likely to maintain a...
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Opinion Statement of the Case The District Attorney of San Mateo County charged Mark Anthony Bauer, the appellant, with six offenses. Count 1 alleged kidnapping (§ 207);1 counts 2 and 3 alleged assault with a firearm (§ 245, subd. (a)(2)); count 4 charged possession of brass knuckles (§ 12020, subd. (a)); count 5 alleged false imprisonment (§ 236); and count 6 alleged burglary with the intent to k...
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Opinion Robert Ladanio, a minor, was convicted of two counts of attempted first degree murder (Pen. Code, §§ 187, 664) and sentenced to life in prison with the possibility of parole. On appeal he contends that the trial court erred in sentencing him to state prison instead *1117 of committing him directly to the California Youth Authority (CYA). We find no error and affirm th...
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Opinion Real parties in interest, the Rio Hondo Community College District and the Board of Trustees of the Rio Hondo Community College District (collectively referred to as the District), appeal from a judgment which ordered the issuance of a peremptory writ of mandate compelling the District to reemploy and pay back wages to plaintiff, a tenured employee. We reverse the judgment and remand th...
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Opinion Statement of Facts and Proceedings Below Appellant Leonard Rymer, Jr., filed an application for “Adjudication of Claim” against his employer, Sheridan Hagler, with the Workers’ Compensation Appeals Board (WCAB) on November 16, 1981. The claim sought compensation for injuries resulting from a work-related accident. Appellant later filed a civil complaint for damages against Ha...
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Opinion Statement of the Case Appellant was charged by information with violations of Health and Safety Code section 11350, possession of heroin and cocaine (counts I and II); Health and Safety Code section 11351, possession of heroin and cocaine for the purpose of sale (counts III and IV); and Penal Code section 12025, possession of a concealed weapon (count V). It was further alleged as a s...
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Opinion Sharon Faye Whitson appeals from an order appointing Tommy Gene Sides (Sides) conservator of the person of appellant’s son, Leon Franklin Sides (Leon). The primary issue raised is whether appellant, an indigent, was entitled to court-appointed counsel in the conservatorship proceeding commenced under division 4 of the Probate Code, We hold that the parent of a *1089 ...
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Opinion In this proceeding in mandate, petitioners Irwin J. Guedalia and James C. Martinez III (Guedalia) request that we order the superior court to vacate its order denying Guedalia’s peremptory challenge *1158 to Judge Pate, and that we vacate all orders of the superior court which were entered subsequent to the date on which the peremptory challenge was allegedly wrongful...
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Opinion Defendant Tony Kendrick was charged in an information with one felony count of burglary (Pen. Code, § 459). A jury found him guilty as charged. He was sentenced to state prison for the lower term of 16 months. Defendant contends on appeal that: (1) his trial counsel was ineffective in that he failed to challenge the prosecutor’s impeachment of the defense witness Anthony Brooks (Brook...
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*1282Opinion Statement of the Case On May 25, 1987, the minor was detained on suspicion of burglary. On June 1, 1987, the People, through a probation officer, and the minor, both personally and through his mother, availed themselves of the provisions of Welfare and Institutions Code section 6541 by signing an “Informal Probation Agreement.” The agreement stated: “In lieu of filing a Petition in th...
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*1023 Opinion The Vons Companies, Inc. (Vons) appeals from an order granting a preliminary injunction in favor of respondent Judlo, Inc. (Judlo). The preliminary injunction requires Vons to permit Judlo to place a news-rack at Vons’s grocery store in Rancho Mirage. Vons contends that the injunction constitutes a “taking” in violation of the Fifth and Fourteenth Amendments of the ...
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Opinion Appellants, the Religious School of Natural Hygiene (RSNH) and its president and first minister, Arthur Andrews, appeal a permanent injunction granted to respondent the Board of Medical Quality Assurance (Board) pursuant to Business and Professions Code section 125.5 1 forbidding appellants from engaging in conduct which the court found constituted unlawful practice of ...
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Opinion Respondent California Department of Motor Vehicles (Department) suspended the driver’s license of appellant Lome Atherton Woods pursuant to Vehicle Code 1 section 16070 for failure to establish proof of financial responsibility. Woods appeals from a judgment denying a writ of mandate to set aside the suspension. We affirm. Facts On January 9, 1987, Woods was involved in a motorcyc...
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Opinion In this case involving dependency proceedings brought under Welfare and Institutions Code section 300, we discuss when the time for filing a notice of appeal from an order begins to run. (All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.) Procedural Background In this published portion of the opinion, we recite only those facts necessary ...
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211 Cal.App.3d 1317 (1989) 260 Cal. Rptr. 106 GEORGE LUTZ et al., Plaintiffs and Appellants. v. DINO DE LAURENTIIS et al., Defendants and Respondents. Docket No. B029439. Court of Appeals of California, Second District, Division Two. June 29, 1989. *1319 COUNSEL James P. Tierney and Peter J. Anderson for Plaintiffs and Appellants. Leopold, Petrich & Smith, Louis P. Petrich, Gary L. Swingle, D...
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Opinion The District Attorney of Napa County, on behalf of the People of the State of California, unsuccessfully sued, under the Unfair Business Practices Act (Bus. & Prof. Code, § 17200), to bar defendant from selling certain knives, claiming they were illegal switchblades (Pen. Code, § 653k). We hold that the butterfly and “Tekna” knives are prohibited switchblades and reverse the judgm...
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Opinion Petitioner Bill Slagle seeks a writ to require respondent court to grant his motion to quash a subpoena for medical records which petitioner claims are privileged. We conclude that the records are discoverable under section 999 of the Evidence Code.1 The lawsuit arises out of an automobile accident on April 7, 1987. On April 4, 1988, petitioner filed an action for personal injuries against...
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Opinion I. Introduction In this case we hold unconstitutional an ordinance restricting the sale of adult newspapers or periodicals from newsracks in the City of *1377 Alameda. The ordinance does not meet the constitutional requirement that it be a content-neutral regulation aimed at preventing secondary effects of adult newsracks in the surrounding neighborhood or be a c...
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Opinion Appellant contends that the jury was improperly instructed, and as a result awarded him inadequate damages in his nuisance action concerning the growth of his neighbor’s trees, This case raises the question of whether comparative negligence may be asserted as a defense in any action for damages to real property resulting from the alleged negligent maintenance of a nuisance. In af...
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Opinion In this appeal we are asked to decide as a matter of law whether, in the absence of specific escrow instructions, an escrow agent in a real estate transaction is under a duty to deposit escrow funds in an interest-bearing account pending disbursement to the parties. We determine there is no such duty and, accordingly, affirm the judgment. Statement of the Case Plaintiff ...
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Opinion Introduction Defendant Carter Terrell Moore appeals from a judgment of conviction entered after a jury trial. The jury found defendant guilty of one count of committing a lewd act upon a child under the age of 14 during which defendant engaged in substantial sexual conduct (Pen. Code, §§ 288, subd. (a), 1203.066, subd. (a)(8) & (9)), one count of attempted oral copulation wit...
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Opinion Appellants Carmella Alberti and Carol Moniz appeal an order of immediate possession entered pursuant to the so-called “quick take” provisions of the Eminent Domain Law. We conclude that the order is not appealable and dismiss. Facts and Procedural Background On October 22, 1987, respondent City of Morgan Hill filed its complaint seeking to condemn a portion of appellants’ property. ...
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Opinion Phillip C. Friedman and Charlene Kahle appeal from the award of costs and attorney fees in favor of Sandy Elster and Ernestine Elster in the Elsters’ action for an injunction prohibiting harassment. The question on appeal is whether respondents are the “prevailing parties” within the meaning of Code of Civil Procedure section 527.6, subdivision (h). 1 We affirm. *1441 The followin...
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Opinion May law enforcement officers justify a protective search of a traffic detainee’s car when the sole basis for believing the suspect dangerous was the plain view observation of a legal weapon within that vehicle? Yes. I On March 14, 1988, at approximately 10:15 p.m., Orange County Sheriff’s Deputies Kevin Bieker and David Koppin were on routine patrol *1431 in Anaheim when they noti...
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*1424 Opinion David Kemp filed an action against the County of Orange, its workers’ compensation insurance adjuster, and others for invasion of privacy and violation of the federal Fair Credit Reporting Act. The defendants’ demurrers to the first amended complaint for failure to state causes of action were sustained without leave to amend. On appeal from the subsequent judgment o...
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Opinion The Peopleappeal from the order of dismissal entered after the trial court granted defendant’s motion to suppress evidence pursuant to Penal Code, section 1538.5. They contend: “I. The observations of an officer from a place he lawfully had a right to be do not constitute a search. II. When the officer observed the large quantities of drugs he believed were illegally possessed in the open ...
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Opinion Appellant Joseph Melchor challenges his sentence for five convictions of residential burglary (Pen. Code, §§ 459, 460, subd. 1), 1 including a bail enhancement (§ 12022.1), and a prior serious felony conviction enhancement (§ 667). He contends the court improperly designated the principal term (§ 1170.1, subd. (a)) and that imposition of both enhancements violates section 654. For the...
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Opinion In this medical malpractice case appellant1 claims instructional error regarding duty to disclose. We affirm. Procedural and Factual Background On June 25, 1980, appellant, then 46 years old, underwent a diagnostic surgical procedure, cardial catheterization (an angiogram) at the Hospital of the Good Samaritan. Respondent, a cardiologist specializing in such procedures, performed the angio...
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*1494 Opinion After defendant Jesus Roberto Perez’s motion to suppress evidence was denied, he pled guilty to one count of possession of phencyclidine (PCP) (Health & Saf. Code, § 11377, subd (a)) and one count of using and being under the influence of PCP (Health & Saf. Code, § 11550). He was placed on probation on condition he serve 90 days in county jail. Defendant seeks furth...
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211 Cal.App.3d 1555 (1989) 260 Cal. Rptr. 237 JOHN BECK, Plaintiff and Appellant, v. AMERICAN HEALTH GROUP INTERNATIONAL, INC., et al., Defendants and Respondents. Docket No. B035652. Court of Appeals of California, Second District, Division Seven. July 13, 1989. *1558 COUNSEL Potter & Reed and Randolph A. Rogers for Plaintiff and Appellant. Harrington, Foxx, Dubrow & Canter, Bruce E. Wei...
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Opinion In this case we hold that (1) when parents have joint physical custody of their children, an order modifying the coparenting residential arrangement does not constitute a change of custody; (2) the standard of appellate review of such an order is whether the trial court has exceeded the bounds of reason and abused the very broad discretion it possesses to make such orders; and (3) there...
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Opinion Two defendants in a personal injury action challenge a court order requiring disclosure of statements they made to an insurance claims representative. They contend that these statements are covered by the attorney-client privilege because they were made in contemplation of litigation and were directed to an agent of their attorney. They discount the fact that when the statements were gi...
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Opinion Appellant Marcelina Hefner filed a complaint seeking a declaration that the insurance policy issued to her by respondent Farmers Insurance Exchange (Farmers) provided coverage under the uninsured-underinsured motorist provisions for bodily injury damages she sustained when the automobile she was riding in as a passenger was involved in an accident. Farmers demurred to the complain...
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Opinion Despite our earlier observations, the appellate department of the Los Angeles superior court persists in certifying that its decisions meet the standards for publication (Cal. Rules of Court, rule 976(b)) even after having ruled those self-same decisions contain no issues meriting certification. (Cal. Rules of Court, rule 63.) Therefore, our comments in Beizer *1594 ...
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Opinion We hold that the Workers' Compensation Appeals Board (the Board) erred when it found defendants McDonald’s and General Adjustment Bureau, Inc., did not unreasonably delay payment of permanent disability indemnity under Labor Code section 5814. 1 At the trial of the permanent disability indemnity issue, applicant Faye Klee testified about specific and cumulative indust...
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Opinion Appellant Walter F. Mena (Walter) appeals an order vacating two child support orders. Because respondent County of Los Angeles (the County), as assignee of Petra Mena’s (Petra) right to collect child support, was entitled to notice of the proceedings at which those orders were made, the order appealed from is affirmed. Factual & Procedural Background1 The essential facts are not in disput...
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*51 Opinion Statement of the Case Appellant, Lorenza M., admitted the allegations of a petition filed pursuant to Welfare and Institutions Code section 602 in the Tulare County juvenile court charging a violation of Vehicle Code section 10851, taking a motor vehicle without the permission of the owner. The Tulare County court transferred the matter to juvenile court in Fresn...
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Opinion Statement of the Case Appellant was charged with one count of cultivating marijuana (Health & Saf. Code, § 11358), one count of possession of marijuana for sale (Health & Saf. Code, § 11359), one count of battery upon a police officer (Pen. Code, §§ 242, 243, subd. (c)), one count of willfully threatening a witness with force or violence (Pen. Code, § 140, subd. (a)) and one ...
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Opinion In this review of a workers’ compensation decision we hold that heart disease “manifests itself’ when revealed by a medical examination of a deputy sheriff, giving rise to the presumption of Labor Code section 3212.51 that the disease arose out of and in the course of that employment. Petitioner Darrell Smith seeks annulment of an order following reconsideration by respondent Workers’ Com...
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Opinion Statement of the Case Plaintiff Theresa F. Gagnon and her husband Milton L. Gagnon (the decedent) sued defendant Continental Casualty Company (Continental) for compensatory and punitive damages arising from Continental’s termination of the decedent’s benefits under a disability insurance policy. They alleged causes of action for breach of contract, breach of the implied covenant of good...
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Opinion Factual Summary Petitioner Gentry Construction Company, Inc. (Gentry), purchased a development of graded lots in La Jolla from the predecessor of real party in interest R. H. Liquidating, Inc. (RH). The sale was contingent upon Gentry’s approval of an engineering report on the property. After the sale, Gentry built a number of homes on the lots and sold them to the public. ...
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Opinion This is a pleading case and the question on appeal is whether the trial court erroneously sustained a demurrer without leave to amend. The question turns upon whether a labor union, voluntarily representing one of its members in a disciplinary hearing before a municipal civil service board, had a duty of care and, if so, upon the nature of such duty. We conclude that under the fac...
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*187 Opinion On November 18, 1987, petition No. 50092 was filed in the Fresno County Superior Court, sitting as juvenile court, which alleged that appellant Donnell L. was a person coming within section 602 of the Welfare and Institutions Code 1 for committing a burglary in violation of Penal Code section 459 (count I), receiving stolen property in violation of Penal Code section 496, subdi...
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Opinion Introduction On this appeal we must determine the relative ranking of insurance coverage provided by three separate insurance companies: Hartford Accident and Indemnity Company (hereinafter Hartford), Sequoia Insurance Company (hereinafter Sequoia), and Transamerica Insurance Company (hereinafter Transamerica). Hartford brought this action to recoup settlement funds approxima...
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Opinion In this case, involving five separate appeals, we are presented with an incredibly obscene example of the defiance, subversion and abuse of the judicial system in general and the procedures for pretrial discovery in particular. In affirming a summary judgment and two trial court sanction orders, we write what should be the final chapter of the unsuccessful efforts of a disbarred l...
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Opinion Pursuant to Penal Code section 1238, subdivision (a)(7), the People appeal from an order dismissing the within cause after the superior court granted defendant’s pretrial motion to quash a search warrant and suppress evidence. (Pen. Code, § 1538.5.) The return to the search warrant for defendant’s residence indicates that police seized, inter alia, 34 grams of cocaine. Subsequently, defen...
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Opinion This appeal arises after a jury awarded $30 million in compensatory and punitive damages to a former member of the Church of Scientology of California (the Church or Scientology). The complaint al *878 leged appellant intentionally and negligently inflicted severe emotional injury on respondent through certain practices, including “auditing,” “disconnect,” and “fair g...
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*Supp. 3Opinion Statement of the Case In a misdemeanor complaint filed August 7, 1987, defendant was charged with violating Health and Safety Code section 11364,1 *unlawful possession of a cocaine pipe. A jury returned a guilty verdict to the charge and this appeal followed. On August 6, 1987, at 9:15 p.m., Officers Harrison and Giuliani were driving in an alley at Carlton Way and Western Avenue ...
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*3 Opinion The trial court issued an injunction precluding appellant Robert Alexander and respondent Mary Leydon from harassing one another. In his appeal, Alexander raises numerous claims of error, including that the trial court erred by finding harassment had occurred as the result of a single incident. We are required to reverse the judgment. I. Facts From 1974-1979, appellant Robert A...
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Opinion Roland DeBeque pleaded guilty in San Diego Municipal Court to one misdemeanor count of annoying or molesting a child under *245 the age of eighteen. (Pen. Code, 1 § 647.6.) The court granted him probation conditioned upon, among other things, the requirement he register as a sex offender pursuant to section 290. DeBeque filed a petition for a writ of habeas...
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Opinion In this case we consider the appealability of certain orders made by the juvenile court following a permanency planning hearing (Welf. & Inst. Code, § 366.25; further unspecified statutory references are to this code)—an issue partially resolved by recent legislation. We shall conclude most of this appeal must be dismissed, but an order placing the minor in Alabama is reviewable and must ...
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Opinion Appellants P. V. and Kirit Patel sued for specific performance of a real estate contract and incidental damages from respondents and sellers L. G., S. L., and Rajeshkumar Patel. The sellers successfully defended the specific performance action at trial, although they were ordered to compensate P. V. and Kirit for all expenses incurred to execute the contract. P. V. and Kirit Patel appeal, ...
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Opinion Plaintiff and appellant Jay Politzer appeals from a denial of a petition for a writ of mandate. The petition sought to prohibit respondent district attorney from attempting to collect child support from appellant on behalf of appellant’s 18-year-old son who was still in high school. Appellant contends that, once his son reached 18 years of age, he was entitled to a hearing pursuant to Civi...
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Opinion Aldis Baltins (Husband) appeals from the order granting the motion of Deanna Baltins (Wife) to set aside the property and support provisions of the interlocutory and final judgments of dissolution of marriage on the grounds of duress and extrinsic fraud or mistake. 1 He contends that the order was not supported by the evidence and was contrary to the law, and that the c...
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Opinion Defendants 20th Century Insurance Company and Melville P. Windle appeal from the trial court’s order denying their motion to disqualify plaintiff Kay Bell’s counsel. Facts On December 11, 1985, one Robert Nick Adams filed a complaint for wrongful discharge against 20th Century Insurance Company, David Sprowl and Dennis Ryan in an action unrelated to the present case. Mr....
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Opinion Plaintiff appeals from an order dismissing his petition to compel arbitration. We reverse. Factual and Procedural Background Respondent issued an automobile insurance policy to appellant. The policy contained a provision for coverage of uninsured motorist accidents and further provided that if the parties could not agree as to a settlement of the uninsured motorist action, the issue...
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212 Cal.App.3d 289 (1989) 260 Cal. Rptr. 641 THE PEOPLE, Plaintiff and Appellant, v. SERVANDO NAJERA LOPEZ, Defendant and Respondent. Docket No. G006708. Court of Appeals of California, Fourth District, Division Three. July 19, 1989. *290 COUNSEL Cecil Hicks, District Attorney, Michael R. Capizzi, Maurice L. Evans, Assistant District Attorneys, Thomas M. Goethals, E. Thomas Dunn and Andrea Burke,...
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Opinion Petitioner seeks a writ of mandate ordering the trial court to grant him trial setting preference pursuant to Code of Civil Procedure section 36, subdivisions (b) and (f).1 We grant the writ. Procedural and Factual Background Michael Jonathan Peters, petitioner, was born on June 14, 1987, at Harbor UCLA Medical Center. He suffered severe neurological birth injuries. *222On September 21, 19...
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Opinion Civil Code section 2924c, subdivision (d) limits the amount of attorney’s fees which may be charged by the beneficiary or mortgagee for the reinstatement of an obligation secured by a deed of trust or mortgage after there has been a default in the payment of interest, principal or other designated obligations. The question on appeal is whether this statutory limitation applies to ...
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Opinion This appeal arises out of Proposition 65, an initiative adopted at the November 1986 General Election. The initiative, designed to protect the people and their water supply from harmful chemicals, added sections 25249.5—25249.13 to the Health and Safety Code (hereafter all statutory references to sections of an unspecified code are to this code). Section 25249.8, subdivision (a) require...
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Opinion Jana B. individually and as guardian ad litem for her son, Daniel B. and Irene and Willie Jenkins, Daniel’s maternal grandparents, appeal a judgment entered against them after demurrers of Beverly Barrington and the County of Orange (the County) were sustained without leave to amend. The issue presented is whether a social worker and the County which employs her have absolute...
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*444 Opinion This appeal presents a question of first impression as to the extent of statutory immunity from negligence liability to be accorded to the public employer of police officers whose pursuit of a fleeing suspect resulted in injury or death of the suspect. Seventeen-year-old Thomas Hooper (Thomas) was killed while being chased by several City of Chula Vista (City) police cars when he...
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Opinion Plaintiff sustained hearing loss and significant permanent brain injuries when his motorcycle collided with defendant’s car, which made a left turn in front of him. After a trial which lasted about two weeks, the jury rendered its special verdict finding defendant wholly at fault for the accident and determining the total amount of plaintiff’s damages to be $1,557,400. Defendant’s motio...
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Opinion Vance Jackson appeals a supplemental judgment of dissolution of his marriage to Michelle. Vance contends the court erred in finding sums received under the uninsured motorist coverage provision of the parties’ insurance policy constituted community estate personal injury damages under Civil Code section 4800, subdivision (b)(4). 1 We affirm the supplemental judgment. I Facts The...
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*470 Opinion After a change of venue of the case from Los Angeles County Superior Court to San Diego County Superior Court, the trial court granted the motion of Automobile Club of Southern California (Auto Club) for judgment on the pleadings with respect to the third amended complaint for damages of Barbara K. Yanase, Sumiye R. Yanase and Craig A. Yanase (Yanase), widow and chil...
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*515Opinion On February 10, 1987, the Commission on Professional Competence (Commission) dismissed Carolyn Blake from her position as a permanent certified teacher with the Capistrano Unified School District (District) on grounds of unprofessional conduct, evident unfitness for service, and persistent violation of or refusal to obey school laws and regulations. (Ed. Code, § 44932, subds. (a)(1), (...
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Opinion Petitioner, Michael Eric Gonzales, complains of the refusal of the Department of Corrections to allow him to correspond confidentially with his Canadian attorney regarding a Canadian divorce proceeding to which petitioner is a party. We agree that under Penal Code section 2600, he is entitled to exercise the right he claims. Petitioner, a prisoner of the State of California, sought confide...
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Opinion Defendant Thomas Allen (appellant) appeals a judgment imposing a five-year prison sentence following his conviction by jury for sale of narcotics (cocaine). I. Factual and Procedural Background On March 23, 1988, at approximately 6:30 p.m., Officer Phillips, a member of the Oakland Police Department Task Force, 1 had with him $20 and $10 bills, marked and photocopied, for the pu...
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Opinion In this appeal, we determine that Sacramento First National Bank and its predecessor Sacramento Valley Bank were and are required to provide wheelchair access to the automatic teller machine (ATM) located at its banking facility in Sacramento. Plaintiff James Donald appeals from summary judgments entered in favor of defendants Sacramento Valley Bank and Sacramento First Natio...
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Opinion Val A. Pichon (hereafter Pichón or appellant), a discharged employee, sued his former employer, Pacific Gas and Electric Co. (hereafter PG&E or respondent), alleging: (1) breach of an express and implied contract of employment terminable only for cause; (2) termination in violation of public policy; (3) breach of the implied covenant of good faith and fair dealing, and (4) neglige...
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Opinion By information filed in the San Mateo County Superior Court, petitioner Cleveland Scott is charged with murder (Pen. Code, § 187)1 with a special circumstance allegation under section 190.2, subdivision (a)(2) (prior murder) and with sentence enhancements and special allegations pursuant to sections 12022, subdivision (b) (use of a weapon), 190.05, subdivision (a) (prior murder for purpose...
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*582 Opinion A jury convicted Paul Rene Miron of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), 1 during the commission of which he personally used a firearm (§ 12022.5) and inflicted great bodily injury (§ 12022.7). Following a bifurcated court trial, he was found to have suffered a prior serious felony conviction (§§ 1192.7, subd. (c); 667) and to have served a prior prison term...
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*545 Opinion Defendant appeals after a jury convicted him of voluntary manslaughter (Pen. Code, § 192, subd. (a)) 1 and found true the allegation that defendant personally used a handgun within the meaning of section 12022.5. The court found true an additional allegation that defendant had suffered a prior serious felony conviction within the meaning of section 667, su...
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Opinion In this case we deal with the questions whether California’s jurisdiction over a minor pursuant to Welfare and Institutions Code section 300 continues even where all parties have left the state, and, if such jurisdiction continues, when it is appropriate to relinquish it to the forum which has greater contact with the parties. The object of our concern is Gloria F. (Gloria) who was born o...
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Opinion Petitioners Coopers & Lybrand, a partnership (Coopers) and Kurt S. Glassman (Glassman) (collectively, Coopers or petitioners), seek a writ of mandate directing respondent superior court to vacate an order overruling their demurrer to real party in interest Wilfred Schwartz’s (Schwartz) complaint, and to enter an order sustaining their demurrer without leave to amend. The issu...
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Opinion On May 12, 1987, in San Diego Superior Court case number J136359, the juvenile court under Welfare and Institutions Code section 366.25 authorized the San Diego County Department of Social Services (Department) to institute proceedings under Civil Code section 232 to free dependent child Angela R. from her mother Lisa M.’s custody and control. Lisa appealed. (D006293.) On January 15, 1988...
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Opinion This is an appeal from an order granting a motion for summary judgment in favor of Respondents California Institution for Women, Department of Corrections and State of California, collectively CIW, in an action brought by appellant to pursue his claim for reasonable accommodation under the Fair Employment and Housing Act. Appellant, a probationary teaching employee at CIW who...
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Opinion The department of social services (DSS) and the minor, Emily L., appeal from a judgment denying the department’s petition to terminate the parental rights of the minor’s mother, respondent Ann P., pursuant to Civil Code section 232.1 Appellants contend the trial court erred as a matter of law in declining to terminate respondent’s parental rights in the face of undisputed evidence compell...
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*747 Opinion Introduction I. Following a jury trial, defendant Pablo Diaz was convicted of driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) and the misdemeanor offense of being under the influence of phencyclidine (PCP) (Health & Saf. Code, § 11550). In a bifurcated proceeding the trial court found true an allegation that defendant had served a prior prison t...
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*646 Opinion Plaintiffs Rossco Holdings Incorporated, doing business as Quaker Corporation, (Quaker) and Michel T. Ghosn (Ghosn) (collectively, appellants) appeal the order of dismissal entered after the trial court sustained the demurrer interposed by the defendants, State of California (the State) and the California Coastal Commission (the Commission) (collectively respondents). 1 , 2 ...
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Opinion In this matter we grant petitioner Mitsui Manufacturers Bank’s (Mitsui) request for a writ of mandate directing the Superior Court to vacate its order denying Mitsui’s motion for summary judgment and grant it summary judgment on the cross-complaint of real parties in interest, The Squidco Corporation of America, Inc. (Squidco), Fisherman’s Supply Center, Inc., Joseph M. Elson, Anne Mari...
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212 Cal.App.3d 696 (1989) 260 Cal. Rptr. 772 BRENNAN SIMMONS, a Minor, etc., et al., Plaintiffs and Appellants, v. WEST COVINA MEDICAL CLINIC et al., Defendants and Respondents. Docket No. B035667. Court of Appeals of California, Second District, Division One. July 27, 1989. *698 COUNSEL Adel & Pollack and Nancy P. Adel for Plaintiffs and Appellants. Ian Herzog, Richard D. Aldrich, Leonard Sa...
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Opinion We decide in this opinion that the City of East Palo Alto’s (City) failure to comply fully with statutory requirements governing preparation of an impartial analysis of a proposed ballot measure does not invalidate the subsequently enacted rent control ordinance or its rent rollback provision. Accordingly, the appellants,1 certain owners of rental property in East Palo Alto, are not entit...
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Opinion Hope Rehabilitation Services (Hope) appeals from a judgment denying its petition for a writ of administrative mandate. The petition sought to overturn audit findings by the Department of Rehabilitation (Department) that required Hope to reimburse the Department $152,039.51. Hope contends the superior court should have applied the independent judgment test rather than the substantial evide...
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Opinion Upon review of a petition for writ of mandate in which First Western Development Corp. (FWDC), a California corporation, is seeking to have Albert Andrisani declared a vexatious litigant, we have *863 determined that Andrisani is repeatedly attempting to relitigate issues finally and conclusively determined in an unpublished opinion of this court. In denying the ...
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Opinion Judge Hillard, Jr., appeals the judgment following his conviction after a jury trial of assault with the intent to commit rape (Pen. Code, § 220) and trespass (Pen. Code, § 602, subd. (/)). He contends that “[t]he law does not recognize the crime for which [he] was convicted, assault with intent to commit spousal rape, and he should therefore be acquitted.” The trial evi...
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Opinion Abel Joseph Reyes appeals from his sentence after a resentencing hearing. He claims: 1. Increasing his determinate sentence seven years and two attempts after his initial sentencing, when he had already completed the determinate portion of his sentence, violated his due process and speedy trial rights; respondent is estopped from disagreeing. 2. The trial court erred by imposing a thr...
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Opinion We hold that the 1986 amendment of subdivision (i) of Penal Code section 1538.5, effective January 1, 1987 (Stats. 1986, ch. 52, § 1) did not change the requirement of People v. Lilienthal (1978) 22 Cal.3d 891, 896 [150 Cal.Rptr. 910, 587 P.2d 706], that a defendant must challenge the legality of a search in superior court in order to obtain review of the *819 issue in an appeal t...
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Opinion In this opinion we resolve that the manufacturer’s sale of printed tickets to the California Lottery Commission (Lottery Commission) is not exempt from state or local taxation pursuant to *594 Government Code section 8880.68. 1 Accordingly, the City of Gilroy (Gilroy) is entitled to a writ of mandate compelling the State Board of Equalization (Board) to dec...
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Opinion Introduction Petitioners Better Alternatives for Neighborhoods (BAN) and the Nyingma Institute 1 (collectively appellants) appeal after the trial court denied their consolidated petitions for a writ of mandate to set aside the University of California’s (University) decision to approve a student housing project located near the University’s main Berkeley campus...
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Opinion Plaintiff’s action for fraud was dismissed after the trial court sustained without leave to amend the demurrer of defendants Sacramento County Bar Association (Association) and David Karabinus. Defendants demurred on the basis they were immune from suit under Business and Professions Code section 6200, subdivision (e), as their alleged liability arose from defendants’ having condu...
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Opinion This is an appeal from a declaratory judgment that plaintiff Robert L. Berry, a former employee of Fairchild Camera and Instruments Corporation who became totally disabled as a result of “manic-depressive illness,” 1) was not covered under a group disability policy issued *835 to Fairchild by defendant The Equitable Life Assurance Society of the United States (Equitab...
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Opinion After a fire on premises leased to Richard Paulson, Ernest Meissner, the landlord, and his insurer, United Pacific/Reliance Insurance Companies (collectively the plaintiffs), sued Paulson for rent owed after the premises had been restored and for damages caused by the fire. Paulson died during the discovery phase of the case. The parties stipulated the Estate of Paulson would be substit...
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Opinion Luis A. Torres filed a complaint seeking to recover damages he sustained when four of his fingers became entangled in and amputated by the irrigation equipment he was operating. He sought *826 recovery from R. M. Wade & Company, Inc., the manufacturer of the machine; Kern County Equipment Company; and various Doe defendants on theories of negligence and strict liabili...
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Opinion In this case we hold that 1986 amendments to Civil Code section 5125, subdivision (e), have not changed the rule enunciated in In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1068 [202 Cal.Rptr. 116], that “After relief is no longer available under Code of Civil Procedure section 473 for mistake, inadvertance, surprise or excusable neglect, an otherwise valid and final judgment...
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Opinion Defendant pled no contest to charges of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and carrying a concealed *953 weapon (Pen. Code, § 12025, subd. (b)) and was placed on probation. He appeals from the order of probation contending the trial court erred in denying his motion to suppress evidence and in imposing a condition of probation requiri...
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Opinion This case presents the issue whether the Workers’ Compensation Appeals Board (the Board) has jurisdiction to determine if a Department of Justice employee is eligible for benefits under Labor Code section 4800. Petitioner, Department of Justice of the State of California, petitioned this court for a writ of review of the Board’s decision to deny reconsideration of its decision finding the...
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Opinion This mandamus action (Code Civ. Proc., § 1085) involves the reemployment rights of regular (tenured) and contract (probationary)1 community college teachers, whose jobs were terminated by layoff, to positions created and assigned to temporary, part-time teachers after the layoff. It arises following the 1982 layoff of appellants, regular and contract employees. Following the layoff, the S...
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Opinion Appellant D. Michael Trainotti appeals from a postdissolution order directing him to pay respondent Roberta J. Trainotti $4,500 in accrued child support. We reverse and remand. In June 1984, the court dissolved the marriage of the parties. Respondent was awarded custody of their minor son, Christopher, and appellant was ordered to pay $450 per month in child support. Some three years ...
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Opinion A petition filed in the juvenile court of Los Angeles County pursuant to Welfare & Institutions Code section 602 alleged that *1079Trinidad V., 17 years of age, had unlawfully possessed cocaine in violation of Health and Safety Code section 11350, subdivision (a) and thus should be declared a ward of the court. Following a hearing pursuant to Welfare and Institutions Code section 700.1,1 ...
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Opinion Plaintiff Douglas Smith (Smith) appeals from the judgment following the trial court’s sustaining of defendants’ (California State Bar, *973 James B. Tippen, Jr., Sandra Abrams, and Vanessa Collier-Poe, hereinafter, State Bar) demurrer without leave to amend. Smith was unable to take the bar examination for which he registered and sued to compel the State Bar to transf...
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Opinion The People appeal from the trial court’s order quashing the search warrant for Cesar Fernandez’s apartment, suppressing resulting evidence and dismissing the case against him on the basis of an insufficient warrant. (Pen. Code, § 1538.5.) We reverse. The order is appealable. (Pen Code, § 1238, subd. (a)(7).) On review, we apply the same standard which governed the trial court: the m...
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Opinion Is the Federal Deposit Insurance Corporation, acting as a receiver for an insolvent bank, protected from an unrecorded oral agreement between the bank and a debtor? We conclude, relying on D'Oench, Duhme & Co. v. F.D.I.C. (1942) 315 U.S. 447 [86 L.Ed. 956, 62 S.Ct. 676], it is. I In June of 1978, Albert and Maryane Dureau, principals of Cal Coast En...
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Opinion Plaintiff Louise Chevlin appeals from a judgment entered after the trial court sustained without leave to amend a demurrer filed by defendant Los Angeles Community College District (District). We affirm. *386 It is axiomatic, of course, that in reviewing the sufficiency of a complaint an appellate court must “treat the demurrer as admitting all material facts properly pleaded but no...
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Under the facts of this case, had the only violation of the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq., hereafter the Act) been City of Los Angeles’s (City) failure to inform Officer Hanna that any statement made during the internal affairs investigation could not be used against him in a subsequent criminal prosecution (see § 3303, subd. (g); Lybarger v. City...
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Opinion Introduction In In re Baert (1988) 205 Cal.App.3d 514 [252 Cal.Rptr. 418] (rev. den Jan. 19, 1989), cert. den. sub nom. California v. Baert (1989) _ U.S. _ [106 L.Ed.2d 589, 109 S.Ct. 3242], we concluded ex post facto principles require that in all first degree murder cases involving felony-based special circumstances (Pen. Code, § 190.2, subd. (a)(17)) and arising prior to the finality of...
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Opinion After 16 year-old Timothy Burbank died because of surgery negligently performed at Sharp Cabrillo Hospital (Hospital), his mother, Bonnie Bell, sued the hospital for having previously renewed the surgical staff privileges of Dr. Samuel E. Rosenzweig, the negligent surgeon. She asserts the hospital breached its duty to exercise reasonable care in reviewing Rosenzweig’s competence when he a...
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Opinion After appropriate waivers, the matter was submitted to the court on the transcript of the preliminary hearing and the testimony of an additional witness. The court, sitting without a jury, found the defend *1167 ant guilty of the offenses of conspiring to sell cocaine (Pen. Code, § 182; Health & Saf. Code, § 11352) and selling cocaine (Health & Saf. Code, § 11352). Hi...
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Opinion La Jolla Village Homeowners’ Association, Inc. (Village) seeks mandate review of the superior court’s order striking from its third amended complaint the second cause of action for strict liability and the sixth cause of action for nondisclosure, as to all subcontractors, respectively (real parties in interest, referred to hereafter collectively as Subcontractors), and its order g...
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Opinion Introduction For 10 years appellant and her two children occupied housing subsidized by the federal government. Although her rent was due on the first of each month, on three occasions during a one-year period her rent was five days late and on one occasion her rent was seven days late. We conclude on the *1122 facts of this case, her tardiness was not “material noncompliance” withi...
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Opinion By means of petition for writ of mandate, petitioners, 6 contestants in a will contest, are seeking an early trial setting under the provisions of Code of Civil Procedure section 36, subdivisions (a) and (e) 1 which provide for trial within 120 days after the granting of a motion for trial preference by any party who has reached the age of 70 years. We are asked to...
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Opinion Following the denial of his motion to suppress evidence (Pen. Code, § 1538.5), appellant Herbie Clark pleaded nolo contendere and was found guilty of burglary (Pen. Code, § 459). He was sentenced to state prison for the low term of two years. As we conclude there was no unlawful search or seizure and the motion to suppress was properly denied, we affirm. Factual Background ...
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*1245 Opinion May an employer discharge an employee solely because he has been diagnosed as having Acquired Immune Deficiency Syndrome (AIDS)? No. Raytheon Company (Raytheon) maintains a facility in Goleta, California, where it produces electromagnetic systems pursuant to contracts with the United States Government. Raytheon hired John Chadbourne (Chadbourne) on February 4, ...
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Opinion One of the limited number of special circumstance crimes for which the death penalty is authorized is intentional murder “carried out for financial gain.” (Pen. Code, § 190.2, subd. (a)(1).) 1 The primary issue presented on these appeals is whether persons who kill in order to prevent discovery of embezzlement committed by one of those persons can be convicted of murder...
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Opinion Appellant, Billy Joe Sutton, was initially charged with 12 violations of the Penal Code. 1 On December 31, 1987, an amended information was filed charging appellant with forcible rape in violation of section 261, subdivision (2) (count I); first degree robbery in violation of sections 211 and 212.5 (count II); assault with a deadly weapon or by force likely to produce great bodily inj...
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Opinion Plaintiff and appellant H. William Wilkerson (Wilkerson) appeals from a judgment following a grant of summary judgment in favor of his former employer, defendant and respondent Wells Fargo Bank, N. A. (Wells Fargo or the Bank). The at-will provisions set forth in the Bank’s employee handbook and its service and operations manual (SOM) do not establish Wilkerson’s employment w...
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Opinion Michael Anthony Pellegrino and Sue Pellegrino appeal from an order denying their petition to compel arbitration pursuant to the arbitration clause of the uninsured motorists coverage provisions of a policy of automobile liability insurance issued by plaintiff Mayflower Insurance Company. For reasons that follow, we affirm. Factual and Procedural History On August 1, 1986...
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Opinion This petition for an extraordinary writ of prohibition in a discovery matter raises the first-impression question whether a minor’s parent may invoke the protection conferred by the sealing of juvenile records pursuant to Welfare and Institutions Code section 781. 1 More specifically, the issue is whether such parent of a minor whose records have been sealed may answer discovery quest...
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Opinion Statement of the Case After his suppression motion was denied, appellant Duane Edward Holt pleaded guilty to one count of possession of methamphetamine (Health & Saf. Code, § 11377) and one count of carrying a loaded firearm (Pen. Code, § 12031, subd. (a)). Appellant was sentenced on these crimes to prison terms consecutive to an unrelated first degree murder conviction. ...
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*1300 Opinion Steve and Shirley Asaro, who held a leasehold interest in a parcel condemned by the Community Development Commission of the City of National City (Commission), appeal a judgment in which the goodwill value of their restaurant was set at $328,712. The sole issues on appeal are whether the trial court used an appropriate valuation method for determining the value of t...
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*1277Opinion The State of California Department of Rehabilitation (State and agency) appeals from a judgment awarding Joyce Watson (Watson), a civil service employee of the State, damages of $1.5 million after a jury trial. Watson proceeded to trial on two statutory causes of action for race and age discrimination in violation of Government Code sections 12940 and 12941, and a third cause of acti...
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Opinion Appellant Pamela Ragan was formerly employed as a police officer for respondent City of Hawthorne (City). She applied for an industrial disability pension. Without giving appellant an evidentiary hearing, respondent’s city manager denied appellant’s application for a pension. Three years later, appellant petitioned the superior court for a writ of mandate (Code Civ. Proc., § 1085) to co...
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Opinion I. The Franchise Tax Board petitions for a writ of prohibition commanding the trial court to sustain its demurrer to a taxpayer’s Complaint for Determination of nonresidency. The filing of such a complaint is expressly authorized by Revenue and Taxation Code section 19081 and Code of Civil Procedure section 1060.5. The Franchise Tax Board contends these provisions violate art...
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Opinion A general demurrer to appellant’s fourth amended complaint (FAC) was sustained without leave to amend, an order of dismissal entered, and appellant appealed from the judgment. Appellant was a surgeon employed by respondent 1 hospital. The hospital’s board of directors adopted a peer review committee’s evaluation of appellant’s medical performance and sent a copy of the report’s reco...
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Opinion This appeal and cross-appeal arise from an eminent domain proceeding involving a property purchased by respondents Franchot F. and Juanita Fleming (the Flemings) under a land sales contract. Appellant Transamerica Financial Services (Transamerica) was the beneficiary of a trust deed on the property securing a loan Transamerica made to the *1374 seller of the property ...
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Opinion Defendant pled guilty to residential burglary (Pen. Code, §§ 459, 460, subd. I), 1 and admitted a prior serious felony conviction (§ 667) in Nevada. The trial court sentenced defendant to the lower term of two years on the burglary and five years on the prior felony conviction, a total of seven years. Defendant contends that his admission of the prior serious felony conviction shoul...
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Opinion Plaintiffs Virginia McMartin and Peggy Ann Buckey appeal from an order sustaining a demurrer to their first amended complaint without leave to amend and dismissing their action against defendants Kathleen “Kee” MacFarlane and the Children’s Institute International for damages allegedly arising out of the investigation and prosecution of a criminal child abuse action. We affirm the...
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Opinion 1. Introduction Defendant Ernest Landry appeals from the judgment following a jury verdict finding him guilty of murder. Since the jury did not determine the degree of the murder, defendant is deemed convicted of second degree murder. (§§ 187, 189, 1157; unspecified section references are to the Pen. Code.) Defendant contends, inter alia, the jury instructions regarding second deg...
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Opinion Daniel S. Grever appeals a judgment convicting him of two counts of detaining a child of whom he had a right of custody (Pen. Code, § 278.5, subd. (b)). He contends the evidence is insufficient to support the conviction because there is no evidence of intent in either count. I Appellant and his wife Vivian had a child named Brian. On April 12, 1985, the couple obtained a final judgment of ...
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Opinion In this consolidated case, defendants Derrick Lamont Brown (Brown) and Terry Allen Whitaker (Whitaker) each appeal their respective convictions and sentences to state prison for felonies committed in Los Angeles on January 30, 1987. Brown was convicted of robbery (Pen. Code, §211), 1 two counts of assault with a firearm (§ 245, subd. (a)(2)), and attempted robbery (§§ 211 and 664). Br...
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*1156 Opinion Armando Rubin Lopez Rivera pleaded guilty to burglary (Pen. Code, 1 § 459), receiving stolen property (§ 496, subd. 1), auto theft (Veh. Code, § 10851, subd. (a)) and possession of narcotics paraphernalia (Health & Saf. Code, § 11364). He was sentenced to four years in prison and ordered to pay $1,591 in restitution to the victims of the receiving stolen ...
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*56 Opinion The People seek a writ of mandate 1 to compel the juvenile court to vacate its order denying the People’s motion to find real party in interest (the minor) “not a fit and proper subject to be dealt with under the juvenile court law.” (Welf. & Inst. Code, § 707, subd. (c).) 2 We conclude the juvenile court acted in excess of its jurisdiction and g...
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213 Cal.App.3d 65 (1989) 261 Cal. Rptr. 458 THERESE P. ROYSTER, Plaintiff and Appellant, v. PAUL CUSHMAN et al., Defendants and Respondents. Docket No. H003941. Court of Appeals of California, Sixth District. August 14, 1989. *66 COUNSEL Carey W. Royster for Plaintiff and Appellant. Barbara Booth Grunwald, Louis T. Lozano and Lozano, Smith, Smith & Woliver for Defendants and Respondents. OPINION ...
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*44 Opinion This is an appeal from the entry of summary judgment in favor of respondent Merced Mutual Insurance Company. The trial court determined respondent had no duty to defend or indemnify Mendez for damages caused by engaging in acts of oral copulation and attempted oral copulation allegedly against Ms. Peery’s will. We shall affirm. On October 16, 1985, Helen and Clau...
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Opinion Appellant was cited for driving a vehicle with illegally tinted front side windows in violation of Vehicle Code section 26101. He moved to dismiss the charge on various constitutional grounds, the primary one being that the statute placed an undue burden on interstate commerce. The hearing on this motion was consolidated with trial and, practically speaking, the entirety of the hearing was...
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213 Cal. App. 3d 86 (1989) 261 Cal. Rptr. 470 In re VIOLET C. on Habeas Corpus. Docket No. B036972. Court of Appeals of California, Second District, Division Six. August 15, 1989. *88 COUNSEL Dennis A. Fischer and Alan S. Yockelson for Appellant. Kenneth I. Clayman, Public Defender, and Neil B. Quinn, Deputy Public Defender, for Respondent. OPINION STONE (S.J.), P.J. Here we are asked to resolve ...
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Opinion A jury convicted Timothy Stark of three counts of forcible sexual contact with a child under the age of fourteen (Pen. Code, 1 § 288, subd. (b)). The trial court sentenced Stark to nine years in prison. He appeals, contending the trial court erred by (1) denying his motion to dismiss under section 995, (2) admitting testimony of the child’s school psychologist regarding the child’s le...
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Opinion This appeal raises two issues. First, must the trial court give reasons for sentencing a terminated probationer to prison when no sentence has previously been imposed? Second, do the reasons for revoking probation satisfy this obligation? We answer both questions in the affirmative. Facts On January 11, 1988, defendant pled guilty to possession of cocaine. (Health & Saf....
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213 Cal. App. 3d 118 (1989) 261 Cal. Rptr. 502 THE PEOPLE, Plaintiff and Respondent, v. WILLIAM EDWARD PRESTON MAY, Defendant and Appellant. Docket No. A038542. Court of Appeals of California, First District, Division Two. August 16, 1989. *122 COUNSEL Jay Ruskin for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, John H. Sugiyama, As...
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213 Cal.App.3d 222 (1989) 261 Cal. Rptr. 515 JACK J. MILLER, Plaintiff and Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant and Respondent. Docket No. G004994. Court of Appeals of California, Fourth District, Division Three. August 16, 1989. *223 COUNSEL Anderson, Parkinson, Weinberg & Miller, Thomas T. Anderson, De Goff & Sherman, Victoria J. De Goff and Richard Sherman fo...
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213 Cal. App. 3d 147 (1989) 261 Cal. Rptr. 509 HARRY T. CAMPBELL, Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; CALA FOODS, INC., et al., Real Parties in Interest. Docket No. A045186. Court of Appeals of California, First District, Division Five. August 16, 1989. *148 COUNSEL Alan G. Rodier for Petitioner. No appearance for Respondent. Lawrence E. Kern, La...
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Opinion Following denial of a motion to suppress evidence and dismiss the information (Pen. Code, 1 §§ 1538.5 & 995), the court found Charles George Pompa guilty of possessing cocaine for sale (Health & Saf. Code, § 11351). The court suspended imposition of sentence and placed him on three years’ probation, including a condition he serve one hundred eighty days in custody. Pomp...
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213 Cal. App. 3d 178 (1989) 261 Cal. Rptr. 413 In re KEVIN F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. KEVIN F., Defendant and Appellant. Docket No. C002577. Court of Appeals of California, Third District. July 20, 1989. *181 COUNSEL Patrick S. McGovern, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attor...
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Opinion The State of California et al. 1 appeal a preliminary injunction prohibiting them from contacting all present and certain former employees of respondent Triple A Machine Shop, Inc., in connection with civil and criminal proceedings appellants are prosecuting against respondent for alleged unlawful disposal of hazardous wastes. We previously granted supersedeas, and now ...
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Opinion Plaintiff, a limited partner of a partnership, appeals from a judgment in favor of defendant general partner on her claim that he was not entitled to special compensation for his services in managing the medical office building which is the business of the partnership. For the reasons discussed below, we reverse. Factual and Procedural History The Wilshire Center Buildin...
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Opinion Herber Leney appeals from his conviction on two counts of misdemeanor child molesting (former Pen. Code, § 647a, now § 647.6). 1 Be argues that the superior court had no jurisdiction over the misdemeanor counts . . . . * * We . . .* affirm the conviction . . . .* An information was filed charging appellant, a high school teacher, in count one with a felony, anal penetration by for...
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213 Cal.App.3d 317 (1989) 261 Cal. Rptr. 565 JAMES A. VLAHOVICH, JR., et al., Plaintiffs and Respondents, v. MICHAEL S. CRUZ, Defendant and Appellant. Docket No. A038284. Court of Appeals of California, First District, Division Two. August 21, 1989. *319 COUNSEL Michael S. Cruz, in pro. per., and S.K. Khalsa for Defendant and Appellant. Patricia H. Lyon and Tobin & Tobin for Plaintiffs and Respon...
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213 Cal.App.3d 324 (1989) 261 Cal. Rptr. 559 JOHN L. LARSON, Plaintiff Appellant, v. SAMUEL DUCA, as Assessor, etc., et al., Defendants and Respondents. Docket No. A041283. Court of Appeals of California, First District, Division Two. August 21, 1989. *327 COUNSEL Haskell Titchell, Edward J. McCaffery and Titchell, Maltzman, Mark, Bass, Ohleyer & Mishel for Plaintiff and Appellant. Louise H. Renn...
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213 Cal.App.3d 401 (1989) 261 Cal. Rptr. 706 MARIAN COOKE et al., Petitioners, v. THE SUPERIOR COURT OF BUTTE COUNTY, Respondent; BUTTE COUNTY BOARD OF SUPERVISORS et al., Real Parties in Interest. Docket No. C003930. Court of Appeals of California, Third District. August 22, 1989. *404 COUNSEL Lucy Quacinella, Standley L. Dorn, Melinda R. Bird, Richard A. Rothschild and Robert D. Newman for Peti...
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213 Cal.App.3d 295 (1989) 271 Cal. Rptr. 214 POVERTY RESISTANCE CENTER et al., Plaintiffs and Appellants, v. DENNIS B. HART, as Director, etc., et al., Defendants and Respondents. Docket No. C000432. Court of Appeals of California, Third District. August 18, 1989.[*] *298 COUNSEL Daniel L. Siegel, Eugene T. Moriguchi, Roberta Ranstrom and Jeffery Ogata for Plaintiffs and Appellants. L.B. Elam, Co...
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Opinion Robert Rolofson IV, a minor, was killed when a motorcycle on which he was a passenger collided with an uninsured vehicle. *375His parents, appellants Robert Hayes Rolofson III and Laura Valentine, filed a wrongful death action in which they alleged, inter alia, that their damages were proximately caused by the negligent operation of the motorcycle by Jeffrey Mort, a minor.1 Jeffrey and his...
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Opinion By this original proceeding in mandate, petitioner seeks to compel expungement of a notice of lis pendens recorded in conjunction with a creditor’s suit that seeks to satisfy a money judgment by establishing an equitable lien interest against petitioner’s real property. *393 We conclude that the underlying action does not “affect title” to the subject real property w...
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Opinion GEM Developers (GEM) and Bonita Grande Condominium Owners Association (Association) appeal a judgment on the pleadings in favor of Hallcraft Homes of San Diego, Inc. (Hallcraft) on a claim for comparative equitable indemnity on a strict liability theory. We conclude equitable indemnity may be sought on a strict liability theory in this case and therefore reverse. Facts S...
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213 Cal.App.3d 231 (1989) 261 Cal. Rptr. 520 SONYA SOKOLOW et al., Plaintiffs and Appellants, v. COUNTY OF SAN MATEO et al., Defendants and Respondent. Docket No. A039117. Court of Appeals of California, First District, Division Three. August 17, 1989. *235 COUNSEL Lee Ann Huntington, Morgenstein & Jubelirer, Robert Rosenfeld, Heller, Ehrman, White & McAuliffe, Alan Schlosser and Richard ...
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213 Cal. App. 3d 336 (1989) 261 Cal. Rptr. 568 MARY KELLY et al., Plaintiffs and Appellants, v. CHOON YEE et al., Defendants and Respondents. Docket No. A041687. Court of Appeals of California, First District, Division One. August 22, 1989. *338 COUNSEL Randall M. Shaw and Roger Stoll for Plaintiffs and Appellants. Jeffrey A. Skinner, Timothy S. Woodall and Gudmundson, Siggins, Stone & Skinne...
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Opinion Gregory Barnes Watson was convicted by a jury of murder and assault with a deadly weapon. The jury also found true various enhancements. Watson argues, among other things, that the prosecution did not exercise due diligence in trying to obtain the presence of a witness at trial, and therefore the court improperly permitted that witness’s preliminary hearing testimony to be read to the...
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Opinion In a letter to counsel for Perry, Hixon, and Greene, real parties in interest, the district attorney advised he had granted *538 “limited use immunity” to the trio in expectation of their forthcoming testimony before the grand jury. 1 Mr. Polis responded that his clients would assert their Fifth Amendment rights notwithstanding the People’s grant of immun...
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Opinion Homeowner’s association sued the developer and subcontractors of a townhouse development for various alleged defects. The issues on appeal relate to drainage problems at the development and the application of the statute of limitations thereto. Plaintiff also raises two issues regarding the award of costs to one defendant. The judgment for defendants is affirmed. State...
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213 Cal. App. 3d 582 (1989) 261 Cal. Rptr. 674 THE PEOPLE, Plaintiff and Respondent, v. EDWARD JOHNSTON BATEY, Defendant and Appellant. Docket No. C003649. Court of Appeals of California, Third District. August 25, 1989. *583 COUNSEL William A. Davis, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney...
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213 Cal.App.3d 488 (1989) 261 Cal. Rptr. 730 TOWN OF WOODSIDE, Plaintiff, Cross-defendant and Respondent, v. RAY L. GAVA et al., Defendants, Cross-complainants and Appellants; TICOR TITLE INSURANCE COMPANY OF CALIFORNIA, Cross-defendant and Respondent. Docket No. A040722. Court of Appeals of California, First District, Division One. August 24, 1989. *490 COUNSEL Steven H. Bovarnick and Hunter & B...
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Opinion Ernest L. Price and Maxine Price (hereafter appellants) appeal from a summary judgment in favor of Wells Fargo Bank and Pamela G. Bogle (hereafter respondents). The action was filed on July 12, 1985 in the Superior Court of Merced County and later transferred to the Superior Court of the City and County of San Francisco. The amended complaint chiefly concerned three related loan t...
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213 Cal. App. 3d 532 (1989) 261 Cal. Rptr. 651 THE PEOPLE, Plaintiff and Respondent, v. GREGORY DARNELL MOSS, Defendant and Appellant. Docket No. A043545. Court of Appeals of California, First District, Division Five. August 24, 1989. *533 COUNSEL Patricia L. Watkins, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, John H. Sugiyama, As...
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*363 Opinion Plaintiffs and appellants Paramount General Hospital Company, a limited partnership (Paramount), and Irving Moskowitz (Moskowitz), as an individual and general partner of Paramount (collectively sometimes referred to as Paramount), appeal from an order of dismissal of their malicious prosecution complaint against defendant and respondent Jack Jay, M.D. (Jay). Th...
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Opinion Gilbert Corona and Jimmy Gonzalez were each charged with two counts of assault by force likely to produce great bodily injury (Pen. Code, 2 § 245, subd. (a)(1)) and two counts of battery with serious injury (§ 243). As to each defendant an infliction of great bodily injury allegation (§ 12022.7) was added to the assault counts. These charges arose from assaults on two victims. Corona ...
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213 Cal.App.3d 573 (1989) 261 Cal. Rptr. 760 THE PEOPLE, Plaintiff and Respondent, v. MELVIN SIMMONS, JR., et al., Defendants and Appellants. Docket No. B030795. Court of Appeals of California, Second District, Division Four. August 28, 1989. *574 COUNSEL Joseph F. Walsh and Fern M. Laethem, State Public Defenders, under appointment by the Court of Appeal, and Patricia L. Reber, Deputy State Publ...
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Opinion Defendant was charged in an information with two counts of violating Health and Safety Code section 11350, possession of heroin and cocaine, respectively. The trial court dismissed the information after it granted defendant’s motion to suppress evidence. (Pen. Code, § 1538.5.) The People appeal, contending the trial court erred as a matter of law. We shall reverse. At about 10:30 a.m....
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213 Cal.App.3d 596 (1989) 261 Cal. Rptr. 769 FRANCES QUESADA et al., Plaintiffs and Appellants, v. OAK HILL IMPROVEMENT COMPANY et al., Defendants and Respondents. Docket No. F010595. Court of Appeals of California, Fifth District. August 28, 1989. *598 COUNSEL James S. Feliciano and George L. Alonso, Jr., for Plaintiffs and Appellants. Van Loucks & Hanley, Michael K. Budra, Geoffrey Van Loucks, ...
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213 Cal. App. 3d 563 (1989) 261 Cal. Rptr. 668 CITICORP NORTH AMERICA, INC., et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; KF DAIRIES, INC., Real Parties in Interest. Docket No. B041990. Court of Appeals of California, Second District, Division Three. August 25, 1989. *564 COUNSEL Munger, Tolles & Olson, Ronald L. Olson, Cary B. Lerman, Shearman & Sterling,...
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213 Cal. App. 3d 612 (1989) 261 Cal. Rptr. 779 MERETTA J. BROWN, Plaintiff and Appellant, v. PRESLEY OF SOUTHERN CALIFORNIA et al., Defendants and Respondents. Docket No. B020755. Court of Appeals of California, Second District, Division Two. August 29, 1989. *613 COUNSEL Leon Small for Plaintiff and Appellant. Lynberg & Watkins, Douglas G. MacKay, Maroney and Brandt, Barry Brandt, Baraban &a...
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*703 Opinion On July 11, 1988, before Judge Timothy S. Buckley, appellant Joseph Horn, Jr., entered a negotiated guilty plea to the charge of sale of cocaine in violation of Health and Safety Code section 11352, and further admitted that the sale involved cocaine base within the meaning of Penal Code section 1203.073, subdivision (b). As consideration for the plea, a separate case charging ap...
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213 Cal.App.3d 622 (1989) 262 Cal. Rptr. 92 AMERICAN CREDIT INDEMNITY COMPANY, Plaintiff and Appellant, v. LOLA N. SACKS, Defendant and Respondent. Docket No. B034560. Court of Appeals of California, Second District, Division Three. August 29, 1989. *625 COUNSEL Ervin, Cohen & Jessup, Allan Gabriel, Calvin E. Davis and Deborah A. Berthel for Plaintiff and Appellant. Karns & Karabian and L...
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213 Cal.App.3d 648 (1989) 261 Cal. Rptr. 805 JOHN R. LEACH, JR., Plaintiff and Appellant, v. CITY OF SAN MARCOS et al., Defendants and Respondents. Docket No. D007281. Court of Appeals of California, Fourth District, Division One. August 29, 1989. *651 COUNSEL Gray, Cary, Ames & Frye, Edward J. McIntyre and Jeanne L. MacKinnon for Plaintiff and Appellant. Higgs, Fletcher & Mack and John M. Morris...
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213 Cal.App.3d 664 (1989) 261 Cal. Rptr. 796 AMERICAN COMPUTER CORPORATION et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; ZORAN D.J. MILETIC, Real Party in Interest. Docket No. D009727. Court of Appeals of California, Fourth District, Division One. August 29, 1989. *665 COUNSEL Hughes, Hubbard & Reed, William T. Bisset and Charles Avrith for Petitioners. No appearance...
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213 Cal.App.3d 639 (1989) 261 Cal. Rptr. 784 THE PEOPLE, Plaintiff and Respondent, v. RONALD BEAN, Defendant and Appellant. In re RONALD BEAN on Habeas Corpus. Docket No. C003594. Court of Appeals of California, Third District. August 29, 1989. *640 COUNSEL Frank Offen, under appointment by the Court of Appeal, for Defendant and Appellant. *641 John K. Van de Kamp, Attorney General, Richard B. Ig...
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Opinion In this appeal Monroe Dyson challenges the affirmance of his dismissal as a youth counselor with the Department of Youth Authority’s Preston School of Industry (Preston or the agency) by the State Personnel Board (Board). The dismissal is predicated solely upon the admission in the administrative disciplinary proceeding of evidence seized by the agency from Dyson’s home, consistin...
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213 Cal.App.3d 825 (1989) 261 Cal. Rptr. 837 WEST AMERICAN INSURANCE COMPANY, Plaintiff and Respondent, v. DAVID NEILSON CHALK, Defendant and Appellant. Docket No. D009860. Court of Appeals of California, Fourth District, Division One. August 30, 1989. *826 COUNSEL Toledano & Wald and John Toledano for Defendant and Appellant. Tucker, Golby and Freeman and Joan Benjamin Brown for Plaintiff and Re...
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Opinion This petition tests the applicability of the ruling in Moradi-Shalal (Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287 [250 Cal.Rptr. 116, 758 P.2d 58] to “bad faith” claims brought under Insurance Code section 790.03, subdivision (h), 1 by first party, as distinguished from third party, plaintiffs. We hold Moradi-Shalal determined that section 790.03(h) canno...
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Opinion Dr. Vo Thanh Thoi was convicted by jury of 11 counts of Medi-Cal fraud, one count of grand theft with a $25,000 great taking allegation, and one count of conspiracy to commit Medi-Cal fraud. He urges reversal, contending: (1) the evidence showed entrapment as a matter of law; (2) the jury was inadequately instructed on entrapment; (3) his communications with an attorney and her la...
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*683 Opinion Can a secured construction lender defeat a bonded stop notice claimant’s statutory priority to construction loan proceeds by segregating the fund into preallocated accounts and thereafter deducting charges and interest as accrued? The construction lender, Imperial Bank, appealing the summary judgment granted the stop notice claimant, Familian Corp., contends Civil Co...
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Opinion Sundance Saloon, Inc. (Sundance), a business licensed as a cabaret by the City of San Diego, filed a complaint pursuant to 42 United States Code section 1983 to enjoin the enforcement of San Diego Municipal Code1 section 33.1501.15, requiring cabarets, with certain exceptions, to close between the hours of 2 a.m. and 6 a.m. A cabaret is defined by the Municipal Code as a commercial establi...
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Opinion Rebecca A. appeals juvenile court dispositional and permanency planning orders relative to her three children, Christina, Robert and Paul A. She contends on appeal that Civil Code section 232, subdivision (a)(6) and Welfare and Institutions Code1 section 361.5, subdivision (b)(2) are either unconstitutionally vague or that they should be defined more strictly than the statutory language al...
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Opinion This appears to be a case of first impression. It arises from the denial of a peremptory writ of mandate. The issue before us is whether California Government Code section 87100 1 precludes a city council member from obtaining a tape recording of a closed session of the town council and its attorney, when that council member was voluntarily absent from the closed sessio...
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213 Cal.App.3d 1061 (1989) 262 Cal. Rptr. 146 ALDENE DENHAM et al., Plaintiffs and Appellants, v. FARMERS INSURANCE COMPANY, Defendant and Respondent. Docket No. H004032. Court of Appeals of California, Sixth District. August 31, 1989. *1063 COUNSEL John McBride and Wylie, McBride, Jesinger & Sure for Plaintiffs and Appellants. David N. Poll and Collins & Zapala for Defendant and Responde...
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Opinion Section 621 of the Evidence Code provides that “the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage” absent rebuttal by certain specified means within two years of the child’s birth. The sole issue before us is whether the trial court’s application of this presumption was unconstitutional in this case. We c...
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213 Cal.App.3d 842 (1989) 261 Cal. Rptr. 820 BRYON MICHAEL ROMBALSKI et al., Plaintiffs and Appellants, v. CITY OF LAGUNA BEACH, Defendant and Respondent. Docket No. G006191. Court of Appeals of California, Fourth District, Division Three. August 30, 1989. *846 COUNSEL Harney, Drummond, Garza & Packer and Thomas Kallay for Plaintiffs and Appellants. Kinkle, Rodiger & Spriggs and James W. ...
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Opinion An information filed in Monterey County charged appellant Dan Howland Searle, Jr., with three counts of selling cocaine (counts I-III; *1095 Health & Saf. Code, § 11352) and one count of carrying a concealed firearm in a vehicle (count IV; Pen. Code, § 12025, subd. (a).) Appellant pled guilty to count IV and was convicted, after a jury trial, of counts I-III. He was s...
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Opinion Kittredge Sports Company (Kittredge) petitions for relief after the superior court denied its motion to amend the complaint. We conclude the trial court abused its discretion and grant the relief sought. *1047 I Kittredge rented skis to Maureen Rush, who injured her knee when the bindings failed to release. In April 1985 she filed a personal injury lawsuit against Kittredge for ne...
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This case has been reduced by the passage of time to the following, hardly earth-shattering issue: Shall a now 24-year-old man be allowed to reside in a 1,236-unit condominium development with his great-grandmother? I would answer in the affirmative based on Civil Code section 51.3, subdivision (g), which provides in part, “Any person who has the right to reside in, occupy, or use . . . housing . ...
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Opinion In May 1987, appellant Michael Jack was sentenced to four years in state prison for burglary. He was given 1,010 days of presentence credit against this term—673 days of custody credit and 337 days of *915 conduct credit. 1 In an unpublished opinion, this court affirmed Jack’s conviction in May 1988. (See People v. Jack (May 24, 1988) A039033.) In October 1988, Jack was before...
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213 Cal.App.3d 1033 (1989) 261 Cal. Rptr. 868 TED WILL, Plaintiff and Appellant, v. ENGEBRETSON & COMPANY, INC., et al., Defendants and Respondents. Docket No. G006681. Court of Appeals of California, Fourth District, Division Three. August 31, 1989. *1035 COUNSEL Copenbarger & Associates, Paul D. Copenbarger, Jaime D. Banfield and Patricia J. Rozakis for Plaintiff and Appellant. C.D. Dal...
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213 Cal. App. 3d 554 (1989) 261 Cal. Rptr. 754 THE PEOPLE, Plaintiff and Respondent, v. GARY ANTHONY MACEDO et al., Defendants and Appellants. Docket No. A039944. Court of Appeals of California, First District, Division Five. August 25, 1989. *556 COUNSEL Richmond M. Flatland, under appointment by the Court of Appeal, and Douglas R. Schmidt for Defendants and Appellants. John K. Van de Kamp, Atto...
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Opinion Artemus Blankenship and Michael Watson appeal judgments following convictions for respectively, robbery (Pen. Code, 2 § 211) and receiving stolen property (§ 496, subd. 1), and other crimes. Blankenship asserts the court erred in giving the instruction on flight (CALJIC No. 2.52), in failing to sua sponte give the unanimity instruction (CALJIC No. 17.01), in inadequately stating reaso...
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*866Opinion A jury convicted defendant Mario Raymond Galan of four counts of attempting to receive stolen property. On appeal he contends that the prosecutor committed misconduct and that his defense counsel acted incompetently. We affirm.1 1 Facts Galan’s contentions do not require us to set out the facts in detail. In summary Ralph Torres, an undercover police officer, sold Galan jewelry on four...
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Opinion The petition for review filed by Ukegawa Brothers has been reviewed and considered by Justices Wiener, Todd and Huffman. The petition is denied. (See Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335 [156 Cal.Rptr. 1, 595 P.2d 579].) In 1988 the Agricultural Labor Relations Board (ALRB or Board) corrected what it called a clerical error in an order iss...
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213 Cal.App.3d 1139 (1989) 262 Cal. Rptr. 166 L.I.F.E. COMMITTEE, Plaintiff and Respondent, v. CITY OF LODI, Defendant and Appellant. Docket No. C000443. Court of Appeals of California, Third District. September 6, 1989. *1140 COUNSEL Ronald M. Stein, Deputy City Attorney, Mark I. Weinberger, Shute, Mihally & Weinberger and Daniel P. Selmi for Defendant and Appellant. Steven A. Herum, Neumiller &...
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Opinion In this dog bite case, plaintiff Rosa Prays appeals from the summary judgment granted defendant Lolorna Perryman on the ground of assumption of risk. The defense theory in essence is “since I am a dog, beware my fangs.” (The Merchant of Venice, act III, scene iii.) Defendant and her mother brought defendant’s dog, a collie-Doberman mix, to H & A Feed and Pet Supplies, Inc., w...
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Opinion Defendant California State Personnel Board (Personnel Board) and real party in interest California Franchise Tax Board (Tax Board) appeal from the trial court’s decision to grant a writ of mandate in favor of plaintiff Fernando Negrete. The Personnel Board affirmed an order of the Tax Board suspending Negrete for 90 days without pay because he was “inefficient” in failing to discover promp...
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213 Cal.App.3d 1214 (1989) 261 Cal. Rptr. 911 THE PEOPLE, Plaintiff and Respondent, v. GEORGE GILBERT AMES, Defendant and Appellant. Docket No. F010934. Court of Appeals of California, Fifth District. September 7, 1989. *1215 COUNSEL John F. Schuck III, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorn...
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Opinion Respondent was charged with commercial burglary (Pen. Code, § 459); three prior felony convictions were alleged. (Pen. Code, §§ 667.5, subd. (b), 1203, subd. (c)(4).) His motion to set aside the information (Pen. Code, § 995) on the ground the magistrate at the preliminary hearing improperly limited his cross-examination of the police officer on a search and seizure issue, was granted. ...
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*1207 Opinion Statement of Facts and Proceedings Below Plaintiff filed a negligence action against defendants for personal injuries sustained from a vehicle/pedestrian accident. Defendants admitted liability, and a jury trial was held on the issue of damages. Damages were sought for past and future medical expenses, lost wages, and pain and suffering. Plaintiff’s counsel made a “per diem”...
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213 Cal.App.3d 1198 (1989) 261 Cal. Rptr. 919 SYED M. MEHDI et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; STEVE BOWMAN, Real Party in Interest. Docket No. D010025. Court of Appeals of California, Fourth District, Division One. September 7, 1989. *1199 COUNSEL Edwards, White & Sooy and Stephen C. Ross for Petitioners. No appearance for Respondent. Philip A. DeMass...
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Opinion Plaintiff was cited by real party in interest Division of Occupational Safety and Health (Division) for two serious violations of employer safety provisions set forth in title 8 of the California Code of Regulations. Citation 1 was for violation of section 1635, subdivision (b)(7) (failure to secure metal decking); citation 2 was for violation of section 1635, subdivision (b)(14) ...
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213 Cal.App.3d 1248 (1989) 262 Cal. Rptr. 323 THE PEOPLE, Plaintiff and Respondent, v. FIDEL TORRES, Defendant and Appellant. Docket No. C003972. Court of Appeals of California, Third District. September 11, 1989. *1251 COUNSEL Michael A. Satris, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney Gene...
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Opinion Walter Stocker, defendant in a personal injury suit filed by George Dumas, appeals from a judgment, after jury trial, awarding Dumas $47,000 general damages and $141,000 punitive damages. 1. Factual Background On January 1, 1981, Dumas and a friend, Irvin Moultrie, went to visit a friend living at an apartment building owned by Stocker. While making his way to th...
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Opinion This appeal arises from the division of property upon dissolution of a marriage. The trial court refused to order reimbursement to the community of an amount equal to the community funds used after the date of separation but before trial to pay a child support arrearage George Williams (husband) incurred prior to entering into the marriage at issue here. We find the community is entitle...
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Opinion Appellants challenge the trial court’s decision to enter summary judgment against their claims in a class action. This case raises legal issues concerning the failure of respondents to pay interest on the security deposits of tenants who lease residential property. We conclude that the trial court properly granted summary judgment and, therefore, affirm. *1057 I. Fac...
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*968 Opinion and appellant Kevin Sterling Jones was found guilty in a court trial of two counts of first degree burglary (Pen. Code, § 459)1, rape (§ 261, subd. (2)), rape in concert with another (§§ 261, subd. (2), 264.1), rape with a foreign object (§ 289, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), and residential robbery (§211, former § 213.5). Most of the convictions ...
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Opinion Beatrice Wilburn appeals the granting of Oakland Hospital’s ex parte application dismissing her complaint, contending she was entitled to a noticed motion and the opportunity to present oral argument. We affirm the dismissal. Statement of Facts On October 9, 1984, Wilburn filed an amended complaint against Oakland Hospital, and others, alleging medical malpractice and the wrongful...
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Opinion Petitioner United Public Employees, Local 790, SEIU, AFL-CIO (Union), which represents certain noncertificated, or classified employees in the education system, seeks review of a decision of respondent Public Employment Relations Board (PERB) holding that real party in interest San Francisco Community College District (District) is not a public school employer of the classified employee...
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Opinion Special districts are agencies of government performing governmental or proprietary functions within limited boundaries (Rev. & Tax. Code, § 2215). The adoption of article XIII A of the Constitution (Prop. 13 on the June 6, 1978, ballot) reduced the amount of property tax revenues available to special districts and other local agencies of government. To ensure the continuation of ...
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Opinion Defendant Richard C. Holguin (Holguin) appeals from the judgment following his conviction for first degree murder and attempted murder. On appeal, Holguin raises various alleged errors. We conclude none of these alleged errors warrants reversal and accordingly affirm the judgment. Statement of Facts and Proceedings Below On September 5, 1986, Holguin, a member of the Eastside Los Street ga...
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213 Cal.App.3d 1321 (1989) 262 Cal. Rptr. 405 KAREN ANDERSON et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent. Docket No. D009094. Court of Appeals of California, Fourth District, Division One. September 14, 1989. *1323 COUNSEL Colleen Fahey Fearn, Anson B. Levitan and Kate Yavenditti for Petitioners. David A. Niddrie and Procopio, Cory, Hargreaves & Savitch for Resp...
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213 Cal.App.3d 1378 (1989) 262 Cal. Rptr. 416 WILLIAM DAVID EVANS, Plaintiff and Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant and Respondent. Docket No. B033144. Court of Appeals of California, Second District, Division Seven. September 15, 1989. *1380 COUNSEL Fogel, Feldman, Ostrov, Ringler & Klevens and Richard L. Rosett for Plaintiff and Appellant. Breidenbach, Swainsto...
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213 Cal.App.3d 1390 (1989) 262 Cal. Rptr. 370 JAMES A. DeROSA, Plaintiff and Appellant, v. TRANSAMERICA TITLE INSURANCE CO. et al., Defendants and Respondents. Docket No. B037938. Court of Appeals of California, Second District, Division Seven. September 15, 1989. *1393 COUNSEL Locke, Locke & Rudman and Berry D. Locke for Plaintiff and Appellant. Allen, Matkins, Leck, Gamble & Mallory, Marvin E. ...
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Opinion We affirm the conviction of Ben E. Johnson for violation of state securities law. (Corp. Code, 1 § 25401.) Section 25401 provides: “It is unlawful for any person to offer or sell a security in this state or buy or offer to buy a security in this state by means of any written or oral communication which includes an untrue statement of a material fact or omits to sta...
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Opinion Harry Carl Harner appeals from an order denying his motion for discharge from outpatient status as a mentally disordered sex offender (MDSO) due to the failure of the court below to hold annual hearings to review his status. We conclude that the motion was properly denied and therefore affirm the order. The record on appeal in this case is rather sparse. However, from the brief clerk’s an...
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Opinion Defendants in intervention and appellants Los Olivos Mobile Home Park, a partnership (the Park), Richard H. Dunn, Paula E. Sprague Dunn, James A. Dunn, Paula Long and Nina Seldner (sometimes collectively referred to as the Park), appeal a declaratory relief judgment in *1430 favor of plaintiff in intervention and respondent City of Los Angeles (the City). The iss...
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Opinion A tenured teacher on sick leave for work-related mental illness is entitled to reinstatement upon presentation of prima facie medical evidence of recovery sufficient to resume teaching. In order to refuse reinstatement of the tenured teacher, the school district has the burden of proving mental incompetence to resume teaching duties, and must comply with the procedural provisions ...
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213 Cal. App. 3d 1445 (1989) 262 Cal. Rptr. 439 COUNTY OF STANISLAUS, Plaintiff and Appellant, v. COUNTY OF STANISLAUS ASSESSMENT APPEALS BOARD, Defendant and Respondent; POST-NEWSWEEK CABLE, INC., Real Party in Interest and Respondent. Docket No. F009453. Court of Appeals of California, Fifth District. September 18, 1989. *1448 COUNSEL Michael H. Krausnick, County Counsel, E. Vernon Seeley, Assi...
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Opinion A jury convicted Ron Brian Muniz of one count of forced oral copulation (Pen. Code, 2 § 288a, subd. (c)) and found true an allegation that Muniz inflicted great bodily injury on the victim within the meaning of section 12022.8. The jury acquitted Muniz of a second count of sexual penetration with a foreign object (§ 289), which had an accompanying great bodily injury al...
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Opinion The Interinsurance Exchange of the Automobile Club of Southern California seeks a writ of mandate compelling the superior court to vacate its order of March 8, 1989, overruling petitioner’s demurrer to the second amended complaint of Manzell Maeshack, Miguel Parada, and Ruben Hernandez, in an action arising out of a collision between a vehicle in which Parada and Hernandez were riding a...
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Opinion Plaintiff and appellant Thomas Ibarra is the named proponent of a municipal initiative measure which he seeks to submit to the voters of the City of Carson. Defendant and respondent Helen S. Kawagoe, as City Clerk of the City of Carson, certified to defendant and respondent City Council of the City of Carson that the proponents had failed to collect enough valid voter signatures on the ...
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Opinion The appellant asserts the lower court erred in deciding a customer of an auto dealership was not the dealership’s “agent” for purposes of the application of Insurance Code section 11580.9, subdivision (a). At stake is the responsibility, as between the customer’s insurer (appellant) and the dealership’s insurer (respondent), for bearing the costs of defense and settlement of a per...
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Opinion Warner Consulting Services, Ltd., Thomas Logan Green, and Logan P. Green (collectively, Warner) appeal from a permanent injunction which prohibits topless dancing at Warner’s Cowgirl Theater. Warner contends: (1) the State of California has not delegated authority to the City of Rancho Cucamonga (City) under the Twenty-first Amendment to regulate nonobscene topless dancing at prem...
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Opinion The People petition for a writ of mandamus to compel the Tulare County Superior Court to vacate its April 19, 1989, order dismissing real party’s murder case. On January 27, 1981, the Tulare County District Attorney filed an information in superior court charging real party in interest as follows: count I— murder (Pen. Code, § 187) 1 with use of a firearm (§ 12022....
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Opinion In this appeal, appellants Western Continental Operating Company, Ronald E. Nunn, and Fleet Oil Company (Western), challenge the trial court’s order disqualifying a law firm from representing them in the underlying action. We affirm. *756 I Western’s first amended complaint against Natural Gas Corporation of California (NGC) and Pacific Gas and Electric (PG&E), ...
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Opinion The petition for writ of mandate, filed March 24, 1989, and the opposition thereto, filed May 23, 1989, have been read and considered. As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory ...
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Opinion Introduction In this case we address the constitutionality of various policies and practices followed by the California Department of Justice, its Bureau of Crimi *151 nal Identification and various officials thereof, including the Attorney General (hereinafter collectively referred to as defendants), in disseminating state summary criminal history information (a...
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*1505 Opinion In an action for declaratory relief, the trial court rendered a judgment which declared that defendant City of Santa Clara (City) exceeded its authority by enacting an ordinance which incorporated provisions of an agreement with its police officers association. The agreement stipulated that when an employee must take temporary military leave he may not receive duplication of pay...
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Opinion The People appeal from an order dismissing an information pursuant to Penal Code section 995, arguing that the trial court erred when it held that respondent, Kosta J. Petsas, had been held to answer without reasonable or probable cause. We agree and reverse the trial court’s order of dismissal. I. Procedural Background On April 15, 1986, a complaint not before us was fi...
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214 Cal.App.3d 195 (1989) 262 Cal. Rptr. 532 HELEN J. LEWIS et al., Plaintiffs and Respondents, v. WILLIAM E. HANKINS, JR., et al., Defendants and Appellants. Docket No. B018198. Court of Appeals of California, Second District, Division Seven. September 22, 1989. *196 COUNSEL Robert Marc Hinden for Defendants and Appellants. John F. Daum and Louise A. LaMothe for Plaintiffs and Respondents. *197 ...
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Opinion Drake Tzolov appeals from a judgment entered against him following the granting of respondent’s motion to dismiss for failure to effect service of summons within three years of the filing of the complaint. 1 We conclude that the motion was properly granted and affirm. Background On January 27, 1983, appellant sustained a severe head injury when he fell from th...
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Opinion Petitioner (applicant) seeks review of the decision of respondent Workers’ Compensation Appeals Board (Board) amending the findings of the workers’ compensation judge (WCJ) that applicant sustained industrial injuries to his cardiovascular system resulting in 100 percent permanent disability. We hold the Board’s decision must be annulled because the Board erred in concluding the cardi...
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Opinion Appellant Gates Rubber Company appeals from a judgment which denied appellant specific performance of an unrecorded option agreement giving it the right to purchase certain property in the 20th year of a 25-year lease of that property from a predecessor-in-interest of Charles Ulman. The term of the lease commenced in 1963. Charles Ulman purchased the property in 1969. Appellant at...
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Opinion In this dissolution of a career-threshold marriage, we hold that the trial court must consider the totality of one spouse’s contributions to the other’s attainment of an education, including contributions for living expenses, when making a spousal support award decision pursuant to Civil Code 1 section 4801. We further determine that in applying the spousal support crit...
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214 Cal. App. 3d 563 (1989) 262 Cal. Rptr. 566 JOHN J. BIANCHI, Plaintiff and Respondent, v. CITY OF SAN DIEGO et al., Defendants and Appellants. Docket No. D007565. Court of Appeals of California, Fourth District, Division One. August 30, 1989. *564 COUNSEL John W. Witt, City Attorney, Ronald L. Johnson, Assistant City Attorney, Eugene P. Gordon, Chief Deputy City Attorney, and Steven R. Gustavs...
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Opinion This case involves the failure of a telecommunications satellite owned by Western Union Telegraph Company (Western Union) to reach the desired orbit. Western Union sought to launch its satellite, Westar VI, into orbit from the space shuttle. To reach the desired orbit from the space shuttle, Western Union used an upper stage rocket it purchased from McDonnell Douglas Corporation (...
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214 Cal. App. 3d 266 (1989) 262 Cal. Rptr. 754 BRUCE SMITH et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES, Defendant and Appellant. BRUCE SMITH et al., Plaintiffs and Respondents, v. LOS ANGELES COUNTY WATERWORKS DISTRICT NO. 29, Defendant and Appellant. Docket No. B033645. Court of Appeals of California, Second District, Division Four. September 26, 1989. *272 COUNSEL Fadem, Berger ...
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*311Opinion 1. Introduction Does the statutory privilege for statements made in judicial proceedings (Civ. Code, § 47, subd. 2) preclude liability for an otherwise wrongful disclosure of trade secrets? Plaintiff ITT Telecom Products Corporation (ITT) filed the instant suit for damages alleging its former employee, defendant Gerald F. Dooley, had violated contractual and other duties of confidenti...
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214 Cal. App. 3d 440 (1989) 262 Cal. Rptr. 798 VIRGINIA JENKINS, Plaintiff and Appellant, v. FAMILY HEALTH PROGRAM et al., Defendants and Respondents. Docket No. B028623. Court of Appeals of California, Second District, Division Three. September 28, 1989. *443 COUNSEL Carman & Mansfield and E. Day Carman for Plaintiff and Appellant. O'Flaherty, Prestholt & Bennington, Belgum, Wulfsberg, B...
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Opinion In an employment discrimination case, Helen Gonzales appeals from the summary judgment entered in favor of respondent MetPath, Inc. *424The operative facts are quite straightforward and not in dispute. MetPath operates a clinical laboratory for analysis of medical samples and provides door-to-door delivery service for its physician customers. Gonzales, whose previous employment involved d...
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214 Cal. App. 3d 451 (1989) 262 Cal. Rptr. 646 VIRGINIA ARAGON, Plaintiff and Appellant, v. PAPPY, KAPLON, VOGEL & PHILLIPS et al., Defendants and Respondents. Docket No. B034347. Court of Appeals of California, Second District, Division Five. September 28, 1989. *453 COUNSEL Rudolfo Ginez, Jr., for Plaintiff and Appellant. Bottum, Rady & Feliton, John R. Feliton, Jr., Christopher R. Pflu...
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Opinion Defendant Gary Dana Trotman was charged in an information with gross vehicular manslaughter while intoxicated *432 (Pen. Code, § 191.5), driving under the influence of alcohol so as to cause bodily injury to another (Veh. Code, § 23153, subd. (a)), and causing injury while driving with a blood alcohol level of .10 or above (Veh. Code, § 23153, subd. (b)). The information further alleg...
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214 Cal.App.3d 203 (1989) 262 Cal. Rptr. 513 KENNETH BUNCH et al., Plaintiffs and Appellants, v. COACHELLA VALLEY WATER DISTRICT, Defendant and Appellant. Docket Nos. E005384, E005470. Court of Appeals of California, Fourth District, Division Two. September 22, 1989. *205 COUNSEL Oliver, Stoever, Barr & Einboden, Oliver, Stoever, Barr & Vose, Thomas W. Stoever and Heriberto F. Diaz for Plaintiffs...
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214 Cal.App.3d 488 (1989) 262 Cal. Rptr. 588 JOEL VITUG, a Minor, etc., et al., Plaintiffs and Appellants, v. DIANA GRIFFIN, Defendant and Respondent. Docket No. H004530. Court of Appeals of California, Sixth District. September 28, 1989. *490 COUNSEL James K. Roberts and Richard P. Cotta, Sr., for Plaintiffs and Appellants. L. Christian Spieller, Alan F. Hunter and Gassett, Perry & Frank for...
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Opinion Plaintiffs Atlantic Richfield Company, a Pennsylvania corporation, Mobil Oil Corporation, a New York corporation (hereinafter ARCO) brought an action for declaratory and injunctive relief against defendants, the State of California and members of the State Lands Commission (hereinafter the State). The declaratory relief cause of action sought resolution of a dispute that had ...
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214 Cal. App. 3d 625 (1989) 262 Cal. Rptr. 836 SALWASSER MANUFACTURING CO., INC., Plaintiff and Appellant, v. OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD, Defendant and Respondent; DIVISION OF OCCUPATIONAL SAFETY AND HEALTH, Real Party in Interest and Respondent. Docket No. F011506. Court of Appeals of California, Fifth District. October 2, 1989. *626 COUNSEL Loomis, Sanoian & Garland and Jo...
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214 Cal.App.3d 329 (1989) 262 Cal. Rptr. 624 FRANK PIOMBO, Plaintiff and Respondent, v. BOARD OF RETIREMENT OF SAN MATEO COUNTY, Defendant and Appellant. Docket No. A041794. Court of Appeals of California, First District, Division Three. September 27, 1989. *331 COUNSEL Thomas F. Casey III, County Counsel, Lillian Lee Port, Assistant County Counsel, and Thomas David Daly, Deputy County Counsel, f...
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Opinion We find that, as in People v. Bonillas (1989) 48 Cal.3d 757 [257 Cal.Rptr. 895, 111 P.2d 844], the initial incomplete jury verdict, degree of murder not having been expressly specified, was lawfully completed by a properly admonished and promptly reconvened jury which rendered a supplemental verdict of first degree murder. Therefore the petition for a peremptory writ of mandate is denied. ...
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Opinion On March 8, 1983, plaintiff Delta Air Lines, Inc. (hereinafter Delta) brought an action pursuant to Revenue and Taxation Code section 6933 1 to recover sales and use taxes and interest totalling $37,687.68, paid under protest to the State Board of Equalization of the State of California (hereinafter Board). Plaintiff also sought declaratory relief and the imposition of ...
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214 Cal.App.3d 590 (1989) 262 Cal. Rptr. 842 JULIE FISHER et al., Plaintiffs and Appellants, v. SAN PEDRO PENINSULA HOSPITAL et al., Defendants and Respondents. Docket No. B033017. Court of Appeals of California, Second District, Division Seven. October 2, 1989. *598 COUNSEL Patricia J. Barry for Plaintiffs and Appellants. Christiann L. Klein and Chris Redburn as Amici Curiae on behalf of Plainti...
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Opinion Facts and Proceedings Below Bronco Wine Company (hereafter Bronco) operates wineries in Fresno and Ceres and processes grapes into wine for sale in bulk to other vintners. The operations of Frank A. Logoluso Farms (hereafter Logoluso) include farming Thompson seedless and French Colombard wine grapes. In June of 1982, Bronco and Logoluso entered into two ten-year contrac...
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Opinion Ronald Robert Koury and German Nava Hernandez separately appeal from their judgments of convictions entered after their pretrial motions were denied and they pleaded guilty 1 to charges of possessing cocaine and marijuana for sale (Health & Saf. Code, §§ 11351, 11359, respectively) and admitted the truth of the allegations that they possessed more than 28.5 grams of coc...
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Opinion This case presents an issue of statutory construction involving Health and Safety Code section 1799.110, which sets forth the criteria for admission of expert testimony in lawsuits against emergency room physicians. In an action for negligence and emotional distress against defendant hospital, the trial court refused to allow testimony by plaintiffs’ expert *724 witness based on the c...
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Opinion This is an appeal from a summary judgment by the assignee of a suspended corporation’s contractual rights, who contests the trial court’s conclusion that restoration of the corporation’s powers did not override the opposing parties’ statutory right to treat the contracts as voidable. Because we agree with the trial court’s conclusion, we will affirm the judgment. *670 ...
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214 Cal.App.3d 635 (1989) 262 Cal. Rptr. 862 AUGUST J. BALISTRERI et al., Plaintiffs and Appellants, v. NEVADA LIVESTOCK PRODUCTION CREDIT ASSOCIATION et al., Defendants and Respondents. Docket No. A040433. Court of Appeals of California, First District, Division Two. October 3, 1989. *637 COUNSEL Nancy L. Case, Lawrence M. Einhorn and Beyers, Costin & Case for Plaintiffs and Appellants. Roger J....
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Opinion In this appeal, the sole question presented is whether the trial court had authority to order defense counsel to pay the prosecution’s witness fees and expenses incurred upon a continuance granted to the defense. For the reasons we explain, we will conclude the order was unauthorized and void. Background This appeal arises against the following procedural background: In January 1988, a ...
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Opinion In this case concerning sexual discrimination in a country club membership, we review the propriety of the trial court’s *651 dismissal of plaintiff’s first amended complaint after sustaining defendants’ demurrer without leave to amend. * Procedural Background In 1970, Richard and Mary Ann Warfield, as husband and wife, acquired a regular family ...
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*757 Opinion Victor Teresinski, individually and doing business as Vic’s Auto Sales (collectively Vic’s), appeals from the summary judgment entered in favor of White Motor Corporation (White) on its cross-complaint for equitable indemnity. White appeals from the trial court’s order denying its request for attorney’s fees. We reverse the judgment and dismiss White’s appeal as moot...
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Opinion Petitioner joined physicians, a professional medical corporation and a hospital in a complaint for medical malpractice. The court sustained a demurrer without leave to amend as to the third cause of action of the first amended complaint, which purported to allege a battery. We entertain the petition because the striking of this cause of action from plaintiff’s complaint would bar ...
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214 Cal. App. 3d 817 (1989) 262 Cal. Rptr. 919 THE PEOPLE, Plaintiff and Respondent, v. JAMES RICHARD VEIGA, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. MICHAEL WALLACE KEELING, Defendant and Appellant. Docket Nos. F010691, F010836. Court of Appeals of California, Fifth District. October 11, 1989. *819 COUNSEL Bruce Hudson Towne and Carlo Andreani, under appointments by the ...
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Opinion Appellant Caroline B. Bogert (Bogert) appeals from an order of the superior court denying her petition for distribution of assets escheated to the state from the estate of John C. Besch (decedent). As decedent’s next of kin, Bogert contends she is entitled to unclaimed funds devised to an individual whose whereabouts are unknown. We disagree and shall affirm. Decedent died testate in ...
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214 Cal.App.3d 766 (1989) 263 Cal. Rptr. 21 THE PEOPLE, Plaintiff and Appellant, v. JOEL McKIM, Defendant and Respondent. Docket No. C005130. Court of Appeals of California, Third District. October 11, 1989. *767 COUNSEL John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Gary A. Binkerd and Joel Carey, Deputy Attorn...
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Opinion Introduction In this case a third grade teacher sexually abused one of his pupils. In an underlying proceeding a $350,000 judgment was entered against him. At the time of the abuse the teacher was covered by an “Educators Employment Liability Policy.” The policy covers events which occur in the course of activities performed by the teacher pursuant to the express or implied t...
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Opinion Introduction The issue before this court today is not the morality or immorality of abortion. “The morality of abortion is not a legal or constitutional issue; it is a matter of philosophy, of ethics, and of theology. It is a subject upon which reasonable people can, and do, adhere to vastly divergent convictions and principles.” (Committee to Defend Reproductive Rights...
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214 Cal. App. 3d 919 (1989) 263 Cal. Rptr. 97 RONALD L. CUMMINGS, Plaintiff and Appellant, v. CITY OF VERNON, Defendant and Respondent. Docket No. B033467. Court of Appeals of California, Second District, Division Five. October 13, 1989. *920 COUNSEL Richard J. Silber for Plaintiff and Appellant. David B. Brearley, City Attorney, and J. David Fitzsimons for Defendant and Respondent. OPINION ASHBY...
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Opinion The People appeal from the order of dismissal entered after the trial court granted defendant’s motion to set aside the information (Pen. Code, § 995) due to the unavailability of a preliminary hearing transcript. Defendant was arraigned and pled not guilty on June 1, 1988, to a charge of robbery (Pen. Code, § 211) with allegations that he personally used a firearm during the commission of...
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214 Cal. App. 3d 904 (1989) 263 Cal. Rptr. 155 THE PEOPLE, Plaintiff and Respondent, v. LYNNARD ARVANT SMITH, Defendant and Appellant. Docket No. B037394. Court of Appeals of California, Second District, Division Three. October 13, 1989. *907 COUNSEL George L. Schraer, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Richard B. Iglehart...
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Opinion Introduction Plaintiff Reola B. Duty appeals the judgment dismissing her lawsuit based upon injury due to exposure to asbestos. The trial court directed verdict in favor of defendants on the ground the statute of limitations had run. Pursuant to Code of Civil Procedure section 340.2 1 the asbestos injury limitations period does not begin to run until “disability.” ...
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Opinion In consolidated appeals, real party in interest and appellant Central Bank (the Bank), appeals from orders of the superior court directing the Bank to turn over to plaintiff and respondent Insurance Commissioner of the State of California (Commissioner), as liquidator of defendants California Standard Indemnity Company (California Standard) and Great Global Assurance Company (Great Global...
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Opinion Defendant was convicted of driving while under the influence of an alcoholic beverage a few months after a prior similar conviction. He appeals from an order granting probation. He contends the prosecution’s evidence apart from his admissions did not establish the corpus delicti, and therefore the trial court erroneously denied his motion to exclude evidence of his admissions. We affirm. I...
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Opinion Defendant Robert Albert Norkon (appellant) appeals from convictions of driving under the influence of alcohol, driving when his license was suspended or revoked, and driving without a valid California driver’s license. He contends that the trial court committed prejudicial error in denying him the right to serve his time in the city jail instead of the county jail. As a result, he contends...
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214 Cal.App.3d 1054 (1989) 263 Cal. Rptr. 177 THE PEOPLE, Plaintiff and Appellant, v. ANTHONY CAVANNA, Defendant and Respondent. Docket No. B035780. Court of Appeals of California, Second District, Division One. October 17, 1989. *1056 COUNSEL Ira Reiner, District Attorney, Donald J. Kaplan and George M. Palmer, Deputy District Attorneys, for Plaintiff and Appellant. Douglas W. Otto, Dennis A. Fi...
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214 Cal.App.3d 1327 (1989) 263 Cal. Rptr. 224 JOHN GLOVER, Plaintiff and Appellant, v. BOARD OF RETIREMENT OF LOS ANGELES COUNTY EMPLOYEES' RETIREMENT ASSOCIATION, Defendant and Respondent. Docket No. B034022. Court of Appeals of California, Second District, Division Seven. October 19, 1989. *1329 COUNSEL Lemaire & Faunce and Mark Ellis Singer for Plaintiff and Appellant. De Witt W. Clinton, ...
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212 Cal.App.3d 1442 (1989) 261 Cal. Rptr. 447 LINDA MARIE BELL et al., Plaintiffs and Appellants, v. MACY'S CALIFORNIA, Defendant and Respondent. Docket No. A039721. Court of Appeals of California, First District, Division Three. August 11, 1989. *1446 COUNSEL Kenneth D. Schnur and Larry Lockshin for Plaintiffs and Appellants Gerald Z. Marer, John F. Schuck, Alan G. Marer and Marer, Marer & S...
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Opinion Roland Delahoussaye appeals after he was convicted in a court trial of one count of felony battery on a peace officer (Pen. Code, *5 § 243, subd. (c)) 1 and one count of misdemeanor assault on a peace officer (§241, subd. (b)). He was sentenced to five years probation. On appeal, he contends: 1) the evidence is insufficient to establish that the assault or battery was on a peace off...
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*19 Opinion In this case we hold that in marital dissolution proceedings (1) the proper date for valuation of the community interest in a spouse’s law practice is normally the date of separation; (2) failure to request a statement of decision is fatal to a challenge on appeal of the exercise of the trial court’s discretion in refusing to allow full credit to a spouse for payment ...
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Opinion Appellants Mary and Kirk G. appeal from an order of the juvenile court following a contested permanency planning hearing. The court ordered that the permanent plan for appellants’ children, Corienna and Sean G., should be for long-term foster care or relative placement. Appellants allege that at this hearing the court erred in denying them further reunification services, failed to conside...
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*1302 Opinion The decedent’s putative spouse by an invalid second marriage petitioned the court pursuant to Probate Code section 13650 1 for determination of property passing to the surviving spouse without administration and for confirmation of property belonging to the surviving spouse. Decedent’s former spouse filed an opposition to the putative spouse’s petition an...
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214 Cal. App. 3d 1294 (1989) 263 Cal. Rptr. 195 F. SCOTT NASSIF, Plaintiff and Appellant, v. THE MUNICIPAL COURT FOR THE DESERT JUDICIAL DISTRICT OF SAN BERNARDINO COUNTY, Defendant and Respondent; THOMAS DEPNER, Real Party in Interest and Respondent. Docket No. E005876. Court of Appeals of California, Fourth District, Division Two. October 18, 1989. *1296 COUNSEL Gale W. Slauson for Plaintiff an...
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Opinion Plaintiffs Topanga Association for a Scenic Community and Woodland Hills Homeowners Organization appeal from judgment denying their petition for a writ of mandate which would have ordered the County of Los Angeles, its board of supervisors and certain of its agencies to set aside their approval of a project for development of a tract of land in an unincorporated area of the county...
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Opinion Tuan Thai appeals from a judgment of dismissal entered after the trial court granted a motion for summary judgment and from an order denying his motions for reconsideration and a new trial. At issue was whether Gary Stang, doing business as Skateworld Roller Rink, was liable for injuries Thai suffered as a result of a drive-by shooting that occurred as he was about to enter Stang’...
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Opinion This appeal is from an order of the municipal court barring action on a misdemeanor complaint against Roger Gerard Domagalski for violation of Vehicle Code sections 23152, subdivisions (a) and (b), and 23225 (driving under the influence of alcohol and possession in a vehicle of an open container of alcoholic beverages). When an accused misdemeanant is released from arrest, he is given a...
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214 Cal. App. 3d 1391 (1989) 263 Cal. Rptr. 296 In re CURTIS T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. CURTIS T., Defendant and Appellant. Docket No. D008848. Court of Appeals of California, Fourth District, Division One. October 19, 1989. *1392 COUNSEL Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. J...
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214 Cal.App.3d 1278 (1989) 263 Cal. Rptr. 287 THE PEOPLE, Plaintiff and Respondent, v. ROBERT A. NIEBAUER, Defendant and Appellant. Docket No. D009461. Court of Appeals of California, Fourth District, Division One. October 18, 1989. *1281 COUNSEL Joel M. Geller for Defendant and Appellant. Edwin L. Miller, Jr., District Attorney, M. Jonathan Oliphant, D. Michael Ebert and Thomas F. McArdle, Deput...
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Opinion An information charged defendants Gordon Barry Fried and Brian Donald Sellers with constructive possession of cocaine pursuant to Health and Safety Code section 11350, subdivision (a). The superior court granted their motions to set aside the information under Penal Code section 995, finding that the magistrate erred in conducting an in camera hearing to disclose the identity of a confi...
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Opinion Defendant was convicted of four separate crimes committed over a three-month period: first degree residential burglary committed on July 4, 1987; second degree robbery committed on July 13, 1987; first degree residential burglary committed on September 16, 1987; and second degree burglary committed on October 3, 1987. Because the last three felonies were committed while defendant ...
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Opinion In these consolidated appeals from a judgment of dissolution and posttrial orders, Frank Regnery contends the trial court erred in refusing to modify temporary spousal and child support, in awarding permanent support, and in its postdissolution order denying modification of permanent support. Frank, unemployed at the time of each order he attacks, contends the trial court (1)...
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Opinion Plaintiff Craland, Inc., appeals from the judgment of dismissal following the sustaining of a demurrer without leave to amend against its second amended complaint for fraudulent breach of contract and breach of implied warranty. We conclude plaintiff’s remedies as a purchaser *1402 at a public sale of tax-defaulted real property against defendants State of California ...
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Opinion This case presents the single issue of whether, under present California usury law, where an agreement is found to provide a usurious rate of interest, the court may award the creditor the 10 percent rate of interest prescribed by Civil Code section 3289, subdivision (b), 1 from the date of the breach. LSM 128, a limited partnership (LSM), appeals after the trial court ...
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214 Cal. App. 3d 1485 (1989) 263 Cal. Rptr. 328 In re GUSTAVO M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. GUSTAVO M., Defendant and Appellant. Docket No. H005463. Court of Appeals of California, Sixth District. October 26, 1989. *1489 COUNSEL Arthur Dudley and Page & Coben for Defendant and Appellant. John K. Van de Kamp, Attorney General, Richar...
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214 Cal. App. 3d 1438 (1989) 263 Cal. Rptr. 340 CITY OF SANTEE et al., Plaintiffs and Appellants, v. COUNTY OF SAN DIEGO et al., Defendants and Respondents. Docket No. D007991. Court of Appeals of California, Fourth District, Division One. October 26, 1989. *1440 COUNSEL McLean & McLean, Donald F. McLean, Jr., and Gloria S. McLean for Plaintiffs and Appellants. Lloyd M. Harmon, Jr., County Co...
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Opinion Gerry Lee Quillar entered a guilty plea to robbery (Pen. Code, §211)1 and admitted a prior serious felony conviction (§ 667(a)). The court sentenced him to prison for eight years: the middle term of three years for robbery enhanced by five years for the prior conviction. Quillar appeals. We conclude the court did not err in refusing to refer Quillar to a narcotic rehabilitation program und...
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Opinion The City of Fremont (Fremont) appeals from a judgment denying its petition for a writ of mandate seeking to set aside a determination by the Board of Administration of the Public Employees’ Retirement System (Board) that year-end cash outs of unused compensating time off in lieu of holiday pay for Fremont’s police officers constitute “compensation” within the meaning of the Public Emp...
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Opinion Michael David Aguilar appeals from the judgment entered following his conviction by a jury of residential burglary (Pen. Code, § 459) and the findings after a court trial of two prior serious felony convictions. (Pen. Code, § 667, subd. (a).) He contends: “The court’s denial of appellant’s request for an instruction on attempted burglary was prejudicial error.” Viewing the evidence in...
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Opinion Statement of the Case and the Facts The People appeal from an order granting a new trial after a jury convicted respondent, Randy Virgil Minnick, of four counts of child molestation by force in violation of Penal Code section 288, subdivision (b). In addition, the jury found that respondent occupied a position of special trust and had committed an act of substantial sexual conduct wit...
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214 Cal.App.3d 1463 (1989) 263 Cal. Rptr. 319 ROBERT ROHN et al., Plaintiffs and Respondents, v. CITY OF VISALIA, Defendant and Appellant. Docket No. F011088. Court of Appeals of California, Fifth District. October 26, 1989. *1465 COUNSEL McCormick, Kabot & Michner and S.L. Kabot for Defendant and Appellant. Crowe, Williams & Jordan and Steven R. Williams for Plaintiffs and Respondents. O...
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*1038 Opinion J.—Petitioner, Lois M., challenges her confinement in the locked mental health ward of Marin General Hospital. The decision to place her in the facility was made by her temporary conservator, the Public Guardian of the County of Marin, appointed pursuant to the provisions of the Lanterman-Petris-Short Act (LPS). (See Welfare and Institutions Code sections 5352.1, 5353, 5358.) 1...
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*1045 Opinion The California Fish and Game Commission, et al., 1 appeal from an order amending a peremptory writ of mandate directing them to comply with requirements of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA) in connection with the promulgation of regulations governing the sport hunting of California mountain lions. ...
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Opinion The People appeal from an order dismissing an information following the granting of defendant’s motion to suppress evidence. We reverse. I. Procedural Background The district attorney filed an information in the superior court charging defendant Carlos George Deltoro (respondent) with driving under the influence of alcohol resulting in injury to another in violation of Vehicle Code ...
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214 Cal.App.3d 1510 (1989) 263 Cal. Rptr. 278 CHERYL AUCHMOODY et al., Plaintiffs and Appellants, v. 911 EMERGENCY SERVICES, Defendant and Respondent. Docket No. B038563. Court of Appeals of California, Second District, Division Six. October 10, 1989. *1513 COUNSEL Hatch & Parent and Thomas D. Wise for Plaintiffs and Appellants. Cappadona & Oldman, L.A. Cappadona, Jeanne A. Taylor, Schramm & Radd...
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Opinion A jury found Denise Valencia guilty of possessing a sawed-off shotgun in violation of Penal Code section 12020, subdivision (a). Her sole contention on appeal is that the prosecution failed to prove that she knew the object was a sawed-off shotgun. We conclude that the prosecution was not required to prove such knowledge. Accordingly, we affirm the judgment. Facts Detective Thomas L...
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Opinion In this appeal from a summary judgment, plaintiff Jean Guidotti and other general assistance recipients in Yolo County *1555 challenge a resolution by the Board of Supervisors of Yolo County which establishes the grant levels of aid for general assistance. Plaintiffs had filed a class action suit against Yolo County (County) for declaratory and injunctive relief,...
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Opinion Statement of the Case On August 24, 1988, a Welfare and Institutions Code section 6021 petition was filed charging appellant Anna A.’s son, Jesse V., with taking a vehicle without the owner’s consent, driving under the influence, evading a peace officer and driving without a valid license. On August 28, 1988, Jesse turned 18 years old. A jurisdictional hearing was held September 2, 1988, b...
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Opinion In this appeal from summary judgment in favor of defendant State Department of Industrial Relations (State), plaintiff County of Los Angeles (County) asserts rights to reimbursement for programs alleged to be state mandated. County filed a complaint and petition for mandate claiming reimbursement from State for costs incurred in complying with new elevator earthquake and fire safety reg...
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Opinion Statement of the Case This is an appeal from an order dismissing appellant’s complaint for failure to bring the action to trial within five years as required by Code of Civil Procedure section 583.310. 1 Appellant filed a complaint against respondent on December 8, 1983. On October 16, 1987, appellant filed a voluntary petition for relief under chapter 7 of the B...
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Opinion Petitioner Peter J. Douglas filed suit against his former employer and others (real parties Jeffrey Charles Weiner et al., hereinafter Weiner) to recover commissions he alleges he earned by selling Weiner’s home improvement services. The first and second causes of action of Douglas’s second amended complaint plead Weiner obtained Douglas’s services by falsely promising Weiner woul...
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*169 Opinion After being found an unfit subject to be dealt with in juvenile court (Welf. & Inst. Code, § 707), appellant, who committed this offense three weeks before his eighteenth birthday, was certified to superior court. There appellant pleaded guilty to committing two counts of lewd and lascivious act by force upon a child under the age of fourteen years (Pen. Code, § 288,...
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Opinion Appellant Pedro C. appeals a juvenile court order determining that his Penal Code section 245, subdivision (b) violation was included within the terms of Welfare and Institutions Code section 707, subdivision (b).1 He claims the juvenile court lacked jurisdiction to review a previous, contrary determination by a juvenile court referee, and that the juvenile court’s action was barred by dou...
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*3 Opinion Mayacamas Corporation appeals from a summary judgment in favor of plaintiff Loren R. Mosher in a breach of contract action. Appellant contends that the trial court erred in precluding it from avoiding, rescinding or reforming its contractual obligations in light of a precipitous decline, subsequent to sale, in the value of the real property which was the subject of the contract. ...
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*93 Opinion The issue before us is whether in a prosecution for driving a vehicle with a blood alcohol level of 0.10 percent or greater (Veh. Code, 1 § 23152, subd. (b)), the partition or conversion ratio defined by the California Code of Regulations for converting a breath alcohol percentage to a blood alcohol percentage may only be rebutted by the defense demonstrating the defendant had a...
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Opinion Plaintiff and appellant Dean David Zilmer sued defendants and respondents Carnation Company (Carnation), and supervisory employees Mortimer Adams and Arthur Pate, 1 and various Does for wrongful termination of employment, breach of an implied-in-fact contract, breach of the implied covenant of good faith and fair dealing, and fraud. He thereafter substituted the Nestle Corporation (Ne...
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Opinion In this action for libel and intentional infliction of emotional distress, the trial court granted defendant newspaper’s motion for summary judgment after it was admitted that plaintiff suffered no special damages as the result of an allegedly libelous publication. Earlier the court had *1628 determined, in a motion for summary adjudication of issues, that plaintiff was limited to spe...
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Opinion Benjamin Hopwood appeals a postdissolution order on order to show cause increasing his monthly spousal support obligation from $200 to $750. I Benjamin and Mary married in 1953 and separated in 1969. The interlocutory judgment of divorce, filed in December, awarded custody of their three minor children to Mary. Benjamin was ordered to pay a total of $300 monthly child support and $2...
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I believe Welfare and Institutions Code section 738 does not authorize San Diego County to negotiate and implement an agreement with the juvenile court of Tijuana, Mexico, relating to juvenile court dispositional orders which involve Mexican nationals. I also conclude the Border Youth Project as implemented here violated Manuel’s rights of due process. I reach these conclusions even though the Bor...
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Opinion We originally granted the petition for a writ in this case. (In re Feiock (1986) 180 Cal.App.3d 649 [225 Cal.Rptr. 748].) It returns to us by way of writ of certiorari from the United States Supreme Court vacating the judgment and remanding for further proceedings. (Hicks v. Feiock (1988) 485 U.S. 624 [99 L.Ed.2d 721, 108 S.Ct. 1423].) Based upon new arguments, we deny the writ of habeas ...
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*1505 Opinion Appellant Dale Randall Goebel filed suit against respondent James Lauderdale for attorney malpractice. The trial court granted respondent’s motion for nonsuit on the grounds that the action was barred by the one-year statute of limitations and because appellant did not establish a prima facie case of negligence. We conclude that the trial court erred in granting the...
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Opinion Guy Santilli, employed by Children’s Hospital, was in the habit of using a freight elevator to reach the hospital’s parking lot. He was injured when the descending door of the elevator struck him on the shoulder as he was pushing the button which caused the door to descend. He brought the instant action against Otis Elevator Company, which had manufactured, installed and maintained the ...
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Opinion We affirm the summary judgment in favor of defendant County of Los Angeles, based upon its statutory immunity for personal injury caused by “any natural condition of any . . . beach” (Gov. Code, § 831.2), 1 and for injury arising from “hazardous recreational activities.” (§ 831.7.) Factual Background Plaintiff, a 16-year-old male, was injured while diving into...
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Opinion San Francisco Bay Area Rapid Transit District (BART) and Benjamin K. Dabalos (Dabalos), defendants below, appeal from a judgment entered against them following a jury verdict finding them liable for false arrest and imprisonment of respondent George Harden (Harden). We affirm. I Harden, a Black man, first came to work for BART as a police officer on or about September 25...
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*1592 Opinion Action for nondisclosure in the purchase of an 80-acre parcel of real property. The seller sued, alleging that the buyer, the general manager of a water district, had a fiduciary duty to disclose his intention to cause a change in water policy affecting the subject real property. The jury found in favor of the seller and the general manager appeals. Historical ...
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*125 Opinion Plaintiff David Brunelle has appealed from a judgment entered following the trial court’s granting of defendant’s (Anthony Signore’s) motion for summary judgment. On appeal, plaintiff contends that the trial court abused its discretion in granting summary judgment in favor of defendant. He argues that the questions of foreseeability and reasonableness of defendant’s ...
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Opinion Does former Probate Code section 631 1 afford absolute immunity to a bank which transfers funds in a decedent veteran’s deposit account to an alleged beneficiary proceeding under a former section 630 affidavit despite actual notice of the superior, statutory claim of the California Veterans Home (Home)? We conclude it does not and reverse the judgment. I. Factual B...
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Opinion A jury found James Henderson Archer guilty of four counts of lewd and lascivious conduct upon a child under the age of fourteen in *201 violation of Penal Code 1 section 288, subdivision (a). Two of the counts alleged a “first” and “last” incident of digital vaginal contact and the other two counts alleged a “first” and “last” incident of penile vaginal con...
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Opinion Part of La Bato’s backyard fell into a creek during a storm. State Farm rejected the claim which La Bato submitted under his all-risks homeowner’s insurance policy. State Farm now appeals from a judgment for $233,372.67 entered against it on account of this rejection. The judgment is reversed. Statement of Facts Julian La Bato bought a house at 157 Ponderosa Lan...
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214 Cal.App.3d 1577 (1989) 263 Cal. Rptr. 404 PHILIP McGOUGH, Plaintiff and Appellant, v. UNIVERSITY OF SAN FRANCISCO, Defendant and Respondent. Docket No. A045427. Court of Appeals of California, First District, Division Three. October 30, 1989. *1579 COUNSEL Philip McGough, in pro. per., for Plaintiff and Appellant. Seyfarth, Shaw, Fairweather & Geraldson, Robert L. Ford, Nick C. Geannacopu...
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Opinion Here we hold * that the definition of a security in California does not depend upon whether or not it is exempt from qualification under the California Corporate Securities Act. Jerry Donald Smith was convicted of two counts of violating Penal Code section 487, subdivision 1 (grand theft) and two counts of violating Corporations Code section 25401 (securities fraud). We affirm. On...
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Opinion The City of Los Angeles appeals from a judgment in favor of respondent Programming-Enterprises, Inc., awarding a refund of business taxes for the years 1982 through 1986, in the sum of $128,404.90 plus prejudgment interest. The facts are not in dispute. The city’s business license ordinance imposes a tax on persons engaged in business in the city; the amount of tax is based o...
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Opinion We hold here that underinsured motorist coverage is not the equivalent of full excess coverage. As the statutory scheme is designed, the underinsured motorist carrier gets a dollar-for-dollar credit for all payments by third party tortfeasors to the insureds, whether the insureds are made whole or not. In other words, a carrier providing underinsured motorist benefits never pays the f...
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Opinion Plaintiff landlord appeals from an adverse judgment in an unlawful detainer lawsuit. In Nourafchan v. Miner (1985) 169 Cal.App.3d 746 [215 Cal.Rptr. 450], a decision by this division, we stated that a tenant had “the right to offset the excess rent paid during the three-year statutory period (Code Civ. Proc., § 338) within which he could bring an action based...
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Opinion Plaintiff Frank Annino & Sons Construction, Inc., and its former attorney, Kendall K. Watson (appellants), appeal from an order *355 awarding sanctions under Code of Civil Procedure section 128.5 1 to Alain F. Dupuis, a former defendant in the action. We affirm. Issues The issues on appeal are: (1) Did the trial court have jurisdiction to entertai...
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Opinion John N. Bach and Janet L. Bach (Bachs) appeal from the judgment entered by the trial court following the opinion and decision of this court in County of Butte v. Bach (1985) 172 Cal.App.3d 848 [218 Cal.Rptr. 613] (Bach I). Having set forth the facts of this case in full in Bach I, we only briefly summarize them here. *299 T...
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Opinion Defendant Donald Raymond Rhodes was charged with the murder of Robert Lee (Pen. Code, § 187; all further undesignated statutory references are to the Penal Code) and with the theft of his van (Veh. Code, § 10851). A jury found defendant guilty of second degree murder and auto theft. The trial court sentenced him to state prison for 15 years to life on the murder charge and for the upper...
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Opinion On May 22, 1986, appellant Robert William Harrington applied with the California Department of Real Estate (Department) for a salesperson’s license. On September 9, 1986, the Department issued a “Statement of Issues” denying the application for the following reasons: (1) On April 27, 1981, appellant was convicted of a violation of section 7028 of the Business and Professions Code ...
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Opinion Plaintiff appeals from an order of dismissal1 following the court’s sustaining defendant’s demurrer to the first amended complaint for failure to state a cause of action against defendant under the doctrine of respondeat superior for the sexual molestation of plaintiff, a student at a school within defendant school district (hereafter District), by an employee of defendant. We affirm. Fact...
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Opinion This is an appeal from orders of the juvenile court adjudicating appellant John B., a minor (date of birth June 11, 1973), a ward of the court (Welf. & Inst. Code, § 602) and committing him to the California Youth Authority. The juvenile court’s adjudication followed the minor’s admission that he committed voluntary manslaughter (Pen. Code, 1 § 192, subd. (a)). The mino...
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Opinion Defendant Victor Wyatt was charged in an information with one felony count of possession of cocaine (Health & Saf. Code, § 11350, subd. (a).) A jury found him guilty as charged. He was sentenced to state prison for the aggravated term of three years. Defendant contends on appeal that the trial court erred: (1) in failing to sua sponte instruct the jury that his inconsistent s...
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Opinion Quincy Hankey appeals from the judgment entered following a court trial in which he was convicted of first degree murder with the use of a firearm. (Pen. Code, §§ 187, subd. (a), 12022.5.) He contends: “I. Appellant did not personally use a firearm within the meaning of Penal Code section 12022.5, and the two year enhancement of his sentence must be stricken. II. Appellant’s sentence of...
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214 Cal. App. 3d 1522 (1989) 263 Cal. Rptr. 393 THE PEOPLE, Plaintiff and Appellant, v. STUART CAREL OTTE, Defendant and Respondent. Docket No. B037686. Court of Appeals of California, Second District, Division Seven. October 18, 1989. *1526 COUNSEL Ira Reiner, District Attorney, Maurice H. Oppenheim and Sterling S. Suga, Deputy District Attorneys, for Plaintiff and Appellant. Tyson & Ipswitc...
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Opinion This is an action for libel and slander brought by appellant Claude Fletcher, a former San Jose City councilman, against respondents San Jose Mercury News, Knight-Ridder Publications and Mercury News reporter Scott Herhold. The libel claim arose after the Mercury News published a series of articles reporting on Fletcher’s conduct as a member of the board of economic and socia...
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*22 Opinion By information, appellant Frank S. Smith, Jr., was charged with (1) robbery of an inhabited dwelling house (Pen. Code, § 211, former § 213.5); 1 (2) burglary of an inhabited dwelling house (§ 459); and (3) assault with a deadly weapon (§ 245, subd. (a)(1)). Enhancements relating to personal use of a deadly and dangerous weapon and the intentional infliction of great bodily injur...
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215 Cal.App.3d 361 (1989) 263 Cal. Rptr. 694 In re ALBERT B. et al., Persons Coming Under the Juvenile Court Law. TULARE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. ALBERT B. et al., Defendants and Appellants. Docket No. F010939. Court of Appeals of California, Fifth District. November 7, 1989. *366 COUNSEL Nancy Marsh, Eleanor M.W. Youngsmith and Gregory M. Chappel,...
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I concur in the result reached by the majority in view of Williams v. Superior Court (1989) 49 Cal.3d 736 [263 Cal.Rptr. 503, 781 P.2d 537]. That case held, for purposes of determining whether a jury represents a cross-section of the community, the “community” is the judicial district. There is no evidence in the case before us Blacks are underrepresented on Norwalk Superior Court juries in relati...
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I respectfully dissent. I agree with the majority in its conclusion the trial court breached the attorney-client privilege by asking a defendant whether he had previously told his lawyer the same version of the facts he was testifying to on the stand. However, I see this error as fundamental and egregious. I find this error constituted a denial of the right to counsel and thus is reversible per se...
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Opinion Introduction This writ petition presents the question of whether respondent superior court must exclude evidence of a surreptitiously tape-recorded conversation between a minor and his parent in a police interrogation room. Under the circumstances chronicled here, we answer in the negative. Factual and Procedural Statement On February 1, 1989, the Los Angeles District Attorney fil...
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Opinion Stanley Anastasio, executor of the estate of Yolanda Anastasio, appeals from a judgment dismissing her cross-complaint against Smokehouse Broiler, Inc. (hereafter Smokehouse), for insurance proceeds recovered by Smokehouse for damage to a building it leased from Yolanda Anastasio. The sole issue on appeal is whether the court is precluded from dismissing an action pursuant to Code of Civi...
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Opinion This is the second appeal in a lengthy dispute between a landlord and his tenant. In the first appeal, this court concluded, inter alia, that the tenant had no right to compel the landlord to sell him the apartment in which he resided. (Lewis v. Hozz (July 7, 1988) A034746 [nonpub. opn.].) In this second appeal, we must decide whether the unlawful detainer proceedings brought by the...
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Opinion Appellant Herman Brown appeals following revocation of his probation. He contends it was an abuse of discretion to admit a police officer’s hearsay testimony relating the findings of a chemist’s test on confiscated substances at a probation revocation proceeding. Statement of the Case and Facts On the basis of an outstanding parole violation, Officer Dennis Quinn arrested appellant ...
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Opinion The Department of Public Health of the City and County of San Francisco (the City) appeals from an order denying its petition to vacate an arbitration award in favor of Service Employees International Union, Local 790 (the Union) and confirming the award. The City contends that the arbitrator exceeded his power set forth in the arbitration agreement in awarding the grievant 225 da...
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Opinion Plaintiffs and appellants Louis Share, Herbert Weiser, and Marvin D. Uritz (collectively, homeowners) appeal a postjudgment order denying them their litigation attorney’s fees from defendant and respondent Casiano Bel-Air Homeowners Association (hereafter Association). For the reasons discussed below, the order denying attorney’s fees is reversed and the matter is remanded fo...
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Opinion These two petitioners—one in prison and one now on parole—challenge the refusal to retroactively apply a change in the amount of work or participation credits accorded to prisoners who are out-to-court. We conclude that the petitioners should have been given one-for-one credits during the periods in which they were out-to-court. The basis for our conclusion is that the equal protection ...
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Opinion In this action to foreclose a mechanic’s lien, Sobeck and Associates, Inc. appeals from a judgment in favor of B & R Investments No. 24 and Bestor Engineers, Inc. 1 In the proceedings below, Sobeck, Inc. had amended its complaint under the fictitious names statute, Code of Civil Procedure section 474, to substitute a named defendant in place of a previously designated D...
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Opinion San Francisco Rent Stabilization and Arbitration Board (Rent Board) and Margot Abenheim (Abenheim) appeal a decision granting a writ of administrative mandamus in favor of respondent Parkmerced Company (Parkmerced). They assert the court erred in concluding Abenheim was not entitled to the protection of the San Francisco Residential Rent Stabilization and Arbitration Ordinance (Re...
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Opinion Troy D. was declared a dependent child of the juvenile court under former section 300(a)1 of the Welfare and Institutions Code2 on *895the basis of a petition which alleged that he was bom under the influence of morphine, methamphetamine and amphetamine, and that his parents were unable to protect him. He was placed in his paternal grandmother’s custody. Troy’s mother, Kelly D. (Mother) a...
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Opinion Biophysica Foundation, Inc. (Biophysica), defendant and cross-complainant below, appeals from the judgment entered in favor of Roll Hancock Torrey Pines on Roll’s complaint, and from the judgment entered in favor of cross-defendants Roll and The Hartford Group on Biophysica’s cross-complaint, and from various related orders. Many issues are raised on appeal, the resolution of whic...
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Opinion T. L. Enterprises, Inc., a California corporation, appeals from the judgment entered following trial to the court of its action for refund of property taxes against the County of Los Angeles. Appellant contends: “A. The damage incurred by the improvement was ‘sudden,’ if such a requirement exists. B. The legislative history of section 51, subdivision (c), requires the conclusion that th...
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*827 Opinion The primary issue presented by this appeal is whether an insurance company has a duty to defend or indemnify an insured under a business liability policy in an action between the insured and its client for securities fraud. We hold the insurance company has no such duty and affirm the judgment. Background The Third Party Complaints In November 1986...
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Opinion Schaeffer Land Trust (hereafter, Schaeffer) appeals from an adverse judgment on its petition for a writ of mandate and complaint for injunctive relief. Schaeffer seeks to set aside two amendments to the general plan of the City of San Jose (hereafter, City) adopted by the San Jose City Council (hereafter, City Council). It primarily argues that the California *619 Env...
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Opinion Following plaintiffs’ purchase of real property in San Jose, the Assessor of Santa Clara County revalued the property for tax purposes in an amount substantially higher than the purchase price. After the assessment appeals board denied plaintiffs’ application for changed assessment, plaintiffs filed this action to nullify the board’s decision. The superior court set aside the boar...
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Opinion Real Party in Interest Jesse Willis (Willis) filed a complaint against petitioners Centinela Hospital Medical Center and Mahmoud Nouh, M.D. (jointly referred to herein as petitioners), seeking damages for the wrongful death of Ann Willis (decedent), whom Willis alleged to be his wife. (Code Civ. Proc., § 377.) 1 Petitioners moved for summary judgment *973 on the ground that Willis a...
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Opinion Alexander Munro, a minor by and through his guardians ad litem Pamela and Allen Munro, and Pamela and Allen Munro, individually, sued the Regents of the University of California, doing business as UCLA Medical Center, and Barbara Crandall for medical malpractice and intentional and negligent infliction of emotional distress. Plaintiffs appeal from summary judgment entered against them and...
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Opinion In a personal injury action, two defendants, by separate petitions for writ of mandate, seek to compel the trial court to grant their *936 motions for summary judgment on the basis of a release signed by the plaintiff before his injury. Plaintiff is a professional automobile and race car mechanic and an experienced race car driver. On January 15, 1984, he compete...
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Opinion This case originated as an eminent domain action taken against multiple defendants. Plaintiff appeals only from the judgment entered below as to one of those defendents. Issue Does section 1263.510 of the Code of Civil Procedure 1 require that an owner/defendant bear the burden of proof with regard to establishing the value of goodwill which has been lost as a result of property h...
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*943 Opinion This case raises the novel question of whether the three-month period of limitation, set out in Code of Civil Procedure section 580a, 1 applies to bar an action for a deficiency judgment brought beyond that period by a junior trust deed holder who has purchased the secured property at a foreclosure sale of a more senior trust deed. We hold that it does. Plaintiff Citrus State...
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Opinion This original proceeding in mandate presents the narrow “good-faith settlement” issue of whether a defendant tortfeasor’s waiver of litigation costs in settling with a plaintiff constitutes “consideration paid” for the settlement within the meaning of section 877 of the Code *954 of Civil Procedure, 1 so as to reduce plaintiff’s total recovery against nonse...
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Opinion In this proceeding, we consider whether parties to an add-on petition in a coordination action are entitled to file a peremptory challenge to the coordination judge. We conclude that the Judicial Council rules governing coordination proceedings do not provide for such a right, that the Judicial Council had the authority to exclude parties to an add-on petition from the exercise of...
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Opinion Appellant Joseph A. Songer appeals a judgment dismissing his petition for a writ of mandate to compel respondent Francis M. Cooney, Clerk-Recorder for the County of San Luis Obispo (clerk), to issue a writ of execution and to compel respondent George Whiting, Sheriff of the County of San Luis Obispo (sheriff), to levy upon certain property of the real party in interest Lawrence Bo...
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Opinion The People appeal from the trial court’s order granting defendant’s pretrial motion to suppress evidence pursuant to Penal Code section 1538.5 1 and dismissing the case in furtherance of justice pursuant to section 1385. The People contend (1) they were denied their right to present all relevant evidence at the motion to suppress evidence, and (2) the seizure *1116 of contraband fro...
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Opinion Grant Donald Church was convicted by jury of four counts of burglary (Pen. Code, 2 § 459), one count of grand theft (§ 487, subd. 1) and three counts of petty theft (§ 484). As to each count of petty theft, the jury found true allegations that Church had been previously convicted of and imprisoned for burglary (§ 666). 3 Church was sentenced to a total term of three years in priso...
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Opinion La Costa Land Company (La Costa) was a corporation engaged in the development and sale of residential realty. It developed and marketed a multi-unit project called La Costa South Unit No. 1. In June of 1968 La Costa caused to be recorded a “Declaration and Establishment of Protective Conditions and Restrictions” (the CC&Rs) which purported to establish restrictions of various kind...
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Opinion Introduction In this writ proceeding, we resolve the question of whether Corporations Code section 312, subdivision (b), forecloses petitioner, a former vice-president with real party in interest, from stating a cause of action for wrongful discharge premised upon an implied agreement of nontermination except for good cause. Interpreting the terms of the statute in accordance with wel...
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Opinion Larry Slater appeals from the judgment imposed following his plea of guilty to one count of sexual battery (Pen. Code, § 243.4, subd. *874 (a).) The trial court sentenced appellant to the midterm of three years in state prison. We affirm the judgment. In April of 1988, the People charged appellant with the forcible rape of a mentally handicapped 29-year-old neighbor. (Pen. Code, § 2...
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Opinion In this proceeding, we consider whether respondent superior court abused its discretion in denying petitioners’ motion to expunge a lis pendens. (Code Civ. Proc., § 409.1.) We hold that the court erred in its refusal to give due consideration to evidence that suggested that there was no merit in the complaint, and shall grant the petition for a writ of mandate. Facts Petitioners Cli...
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*964 Opinion This appeal is a consolidation of two appeals filed by plaintiff/appellant Faye Coats (appellant). 1 One challenged the dismissal with prejudice of her first four causes of action following a judgment on the pleadings in favor of defendant/respondent K-Mart Corporation (K-Mart); the second challenged the granting of the motion for nonsuit made by responden...
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Opinion Article I, section 1 of the California Constitution declares that privacy is among the people’s “inalienable rights.” The principal question in this appeal is whether a private employer violates that constitutional provision by asking all job applicants to consent to a urinalysis which tests for alcohol and other drugs as a condition of an offer of employment. The applicants have ...
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Opinion Antonio R. (father) appeals from a dispositional order of the juvenile court placing his son, Jesse C., in foster care (Welf. & Inst. Code, § 300, subd. (a)) and denying reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(2). He contends 1) there was insufficient evidence to support the order, and 2) the trial court committed reversible error by...
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Opinion In case No. 6539, defendant pleaded guilty to one count of lewd and lascivious acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a)), 1 and in case No. 6553, he pleaded guilty to one count of attempted lewd and lascivious acts upon a child under the age of 14 (§§ 664 and 288, subd. (a)). He was sentenced to the midterm of six years on the section 288, subd...
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Opinion The individual owners of the separate parcels of land located in the Concord Park and Shop Center on Willow Pass Road in *1091 Concord (the Concord Center) appeal from a judgment in condemnation finding that their nonexclusive appurtenant easement rights condemned herein were of no value, and ordering nothing in compensation for the taking thereof by the Redevelopment...
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Opinion This appeal arises from an action brought by Sally Hughes (hereafter Mrs. Hughes or respondent) and her estranged husband, Jurdy Hughes (hereafter Mr. Hughes), against Blue Cross of Northern California (hereafter Blue Cross) alleging several causes of action arising from the denial of insurance benefits for their son’s hospitalization. Upon petition of Blue Cross, the plaintiffs’ ...
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*244 Opinion In this writ proceeding, petitioners Jones T., Sr., and Anne T. challenge an order of the juvenile court after a permanency planning hearing. The order, in part, directed county counsel to initiate proceedings to terminate their parental rights under Civil Code section 232. Jones and Anne want the case remanded for a reevaluation of the permanency plan, specifically to (1) have t...
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Opinion Jimmie Johnson appeals from an order dismissing his petition filed under Probate Code section 17200. The dismissal order was entered on January 6, 1989. We treat the order as a judgment that is appealable pursuant to Probate Code section 17207. Factual Background Vincent Miranda and George Tate (respondent herein) each created “Living Trusts” on January 28, 1983. Each trust was iden...
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Opinion Associated International Insurance Company (Associated) appeals from a judgment in favor of United States Elevator Corporation (USEC) on USEC’s complaint for damages and declaratory relief. Associated claims the trial court erred when it held that it was responsible to pay certain claims against USEC under a contract of excess insurance. In reversing, we will hold that ambiguities exist...
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Opinion In this action for medical malpractice, plaintiff Doretha McAdory appeals from “the judgment.” That judgment awarded Ms. McAdory $218,400 against defendant Dr. William C. Rogers, M.D. Ms. McAdory contends that the trial court improperly applied the $250,000 cap in noneconomic damages embodied in Civil Code section 3333.2 1 in reducing the jury’s award. Dr. Rogers initia...
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Opinion This appeal is taken from a judgment entered in favor of plaintiff and respondent Zanker Development Co. (Zanker) and against defendants and appellants (Cogito), Ching Fong Investment U.S.A. Corp. (Ching Fong) and Su Shiong Huang (Huang). The judgment was against Cogito for breach of a written lease agreement and against Ching Fong and Huang for breach of their written guarantees ...
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Opinion In a companion case decided today (People v. Hallman, ante, p. 1330 [264 Cal.Rptr. 215]), this court concluded that “contrary to the procedure adopted in Wilder v. Superior Court [(1979)] 92 Cal.App.3d 90, . . . trial court[s] can, by local rule, require the moving party in [Penal Code] section 1538.5 motions to set forth with specificity the grounds and theories to support the ...
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215 Cal.App.3d 1163 (1989) 264 Cal. Rptr. 17 FIDELITY NATIONAL TITLE INSURANCE COMPANY, Plaintiff and Appellant, v. CLAYTON L. MILLER, Defendant and Respondent. Docket No. D008990. Court of Appeals of California, Fourth District, Division One. October 26, 1989. *1168 COUNSEL Peter C. Holzer and Thomas Allan Shaw for Plaintiff and Appellant. Duke, Gerstel, Shearer & Bregante, Richard D. Bregan...
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Opinion This appeal tenders the question whether family support investigators employed by the District Attorney of the County of Sutter are entitled to enhanced retirement benefits (Gov. Code, § 21251.13) 1 as “county peace officers” under section 20021.5 when his practice and policy is to enforce parental support obligations primarily by civil rather than criminal action. ...
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Opinion Appellant Adamson Gbadebo-Soda appeals from a judgment entered on a jury verdict finding him guilty of two counts of *1373 failure to appear (counts II and III; Pen. Code, § 1320, subd. (b)). 1 The jury failed to agree on a third count of escape (count I). Procedural Facts On August 26, 1987, an information was filed charging appellant with escape...
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Opinion A jury convicted the defendant of second degree murder of her husband in August 1986. (Pen. Code, §§ 187, 189.) 2 The jury also found that the defendant personally used a firearm. (§ 12022.5.) Defendant was sentenced to 15 years to life, and the firearm use enhancement was stayed. Defendant contends that the trial court erred: (1) in excluding expert testimony that the defendant was...
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Opinion This is a case in which the defendant’s sole challenge is to the application of one of the recidivist statutes. The challenge relates to whether one of his prior offenses satisfies a criterial predicate for the imposition of a life term in prison without possibility of parole for 20 years under Penal Code section 667.7 (subsequent undesignated section references are to this code)....
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*1413Opinion The People, petitioner in this proceeding, filed an amended petition for forfeiture in respondent superior court, alleging that monies paid to certain lawyers and law firms (defense attorneys) by their respective clients were traceable to exchanges of controlled substances, and were thus subject to forfeiture under the provisions of Health and Safety Code section 11470 et seq. Respon...
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Opinion S. L. Rey, Inc. (Rey), has sued Michael J. La Paglia (La Paglia) to impose a constructive trust on real property purchased with funds which Rey alleges La Paglia wrongfully withheld from Rey’s predecessor in interest. In these original proceedings, La Paglia seeks a peremptory writ of mandate after the superior court denied his motion to expunge a notice of lis pendens filed by Re...
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Opinion After denial of his pretrial motion to suppress evidence pursuant to Penal Code section 1538.51 and exhaustion of his pretrial remedies of review of that denial, Robert Samuel Hallman pleaded guilty of driving under the influence of intoxicating beverages (Veh. Code, § 23152(b)). He then unsuccessfully appealed to the appellate department of the San Diego Superior Court arguing his pretri...
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*1006 Opinion The City Council of the City of Palm Springs, together with the City of Palm Springs (collectively referred to as City), has appealed from a judgment directing that a writ of mandate issue to compel City to vacate and set aside the second amended participation agreement (the Second Agreement) between City and Wessman Development Company (the developer). Such judgment declared th...
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Opinion Business and Professions Code section 6146 1 enacted as a part of the Medical Injury Compensation Reform Act of 1975 (MICRA) limits the amount of fees an attorney may obtain in a medical malpractice action when representing a party on a contingency fee basis. If periodic payments are awarded to the plaintiff under section 667.7 of the Code of Civil Procedure, section 64...
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Opinion Lon Albert Sullivan appeals his convictions for manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)), possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)), possessing methamphetamine for sale (Health & Saf. Code, § 11378), and driving without a license (Veh. Code, § 14601.1, subd. (a)). On appeal, he contends the court committed instructional and...
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Opinion Petitioners State Farm Fire and Casualty Company and State Farm adjuster Don Dennison (together State Farm) seek mandate directing the superior court to vacate its ruling denying State Farm’s motion for summary judgment on Aegea Homeowners Association, Inc.’s (Aegea) complaint for breach of the duty of good faith and fair dealing, breach of statutory duties and breach of contract....
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Opinion In her complaint plaintiff and petitioner Linda Denari contends that while being booked into the Kern County jail on July 21, 1985, the authorities, using excessive force, broke her arm. She asserts claims for negligence, intentional tort and violation of 42 United States Code section 1983, the federal civil rights cause of action. Named defendants include the County of Kern, Rita Prunt...
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Opinion Factual and Procedural Background Dr. David B. Kaye is an ophthalmologist with an emphasis on refractive and cataract surgery. He began practicing in Fresno in 1980. Between *1480 October 1982 and April 1984 Saint Agnes Medical Center monitored all Dr. Kaye’s cases, preoperatively, intraoperatively, and postoperatively. Saint Agnes Medical Center informed Dr. Kaye that the restricti...
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215 Cal.App.3d 1220 (1989) 264 Cal. Rptr. 208 ANDRE CARPIAUX, Plaintiff and Respondent, v. PERALTA COMMUNITY COLLEGE DISTRICT, Defendant and Appellant. Docket No. A038271. Court of Appeals of California, First District, Division One. November 20, 1989. *1222 COUNSEL Jon A. Hudak for Defendant and Appellant. Gregor D. Guy-Smith for Plaintiff and Respondent. [Opinion certified for partial publicati...
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Opinion We publish our opinion in this case to once again bring to the attention of the Legislature once again the need to change the process for appellate review of juvenile court determinations, especially in dependency proceedings. The present method of review by appeal fails to protect the rights of the parties fully and imposes an unnecessary additional workload on already overburdened Court...
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Opinion Here, we consider whether the covenants, conditions and restrictions (CC&Rs) of a publicly subsidized condominium project validly can require owner occupancy and forbid the leasing of units. Michael Shawn McKenna appeals from a judgment against him on the City of Oceanside’s (City) suit for injunctive and declaratory relief seeking to enforce such restrictions at the Sea Village c...
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Opinion Introduction Defendants California Health and Welfare Agency, James Stockdale, Acting Secretary of the Agency, State Department of Finance, and Kenneth Kizer, Director of the Department, appeal the issuance of a preliminary injunction by the Alameda County Superior Court, enjoining appellants “from denying Medi-Cal coverage of root canal treatments and laboratory processed cr...
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Opinion In this case we hold that the trial court, in granting a motion to modify a Richmond spousal support order, possesses broad discretion not only as to how long to extend the order, but also as to the amount of spousal support ordered to be paid during the extension. A Richmond order is normally issued with the expectation that if the supported spouse exercises reasonable diligence, he or s...
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Opinion This appeal presents a narrow jurisdictional question of the power of the superior court, sitting in probate, to set aside a deed executed by a conservator before the conservatee’s death. The facts and procedural history relevant to this question can be briefly stated. Francis Starr was a widower, residing in Berkeley, California, who experienced declining health in the years after the dea...
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Opinion In a civil forfeiture proceeding brought by the People pursuant to Health and Safety Code section 11470 et seq.,1 the trial court rendered a judgment which (1) declared $6,500 in United States Currency forfeited to the People, and (2) awarded the People the sum of $6,500 against appellant Robert D’Ambrosia. The judgment indicated that civil liability was imposed upon appellant because the...
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Opinion Statement of the Case Appellant Oildale Mutual Water Company (Oildale) filed a complaint against respondent North of the River Municipal Water District (District) and the individual members of District’s board of directors alleging that District was overcharging Oildale for the water that District was providing under a water service agreement. The complaint further sought a declaratio...
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Opinion Cancún Homeowners Association, Inc., appeals a summary judgment granted in favor of the City of San Juan Capistrano (the City). Specifically, Cancún objects to the trial court’s conclusion that the City is immune from prosecution for negligence in the issuance of building and grading permits. I In 1986 Cancún filed a complaint for damages suffered by its condominium unit owners from...
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Opinion Gordon J. Ceresino appeals a judgment entered against him and in favor Of Fire Insurance Exchange and Farmers Insurance Group (collectively Farmers). The parties stipulated to the judgment to allow review of two pretrial rulings. Ceresino objects to the . court’s determination he is collaterally estopped from contending Farmers should indemnify him for a prior stipulated liability judgm...
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Opinion In this case we consider whether the eviction service provided by Landlords Professional Services (LPS) involved the unauthorized practice of law. I Facts and Procedural History In 1982 the Orange County Apartment News carried an advertisement for the eviction services provided by LPS. The ad stated “Evictions as low as $65” and showed the picture of a purposeful an...
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Opinion Do Vehicle Code sections1 23202 and 23206, which prohibit diversion “in any” driving under the influence case, make an exception for a developmentally disabled defendant? Our answer is no. Procedural and Factual Background On October 22, 1986, defendant was charged with misdemeanor violations of section 23152, subdivision (a), driving under the influence of alcohol, and section 23152, sub...
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Opinion American Bankers Insurance Company of Florida (America), for itself and its agents, appeals from an order denying its motion to set aside summary judgment and to exonerate its bail bond. 1 Richard Powe, defendant in this matter, was released on a $4,000 bail bond posted by American and Albert Ramirez Bail Bonds. Powe pleaded guilty and a probation and sentencing hearing was set for ...
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Opinion Plaintiff appeals from a judgment for defendants in an action for declaratory relief under Code of Civil Procedure section 1060. The trial court found that pursuant to Civil Code section 1654, a typewritten provision prohibiting prepayment of an all-inclusive promissory note was superseded by a printed provision limiting the borrower’s right of prepayment to the extent to which pr...
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*22 Opinion No flippancy is intended, but all are familiar with the old adage of “going to the well too often.” This is a case where plaintiff and appellant, Richard S. McClain (McClain or vendee) did not “go to the well often enough” before purchasing the real property here involved. Had he done so he may have timely discovered the well on the property produced water too “hard” to be potable...
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Opinion Defendant Richard Gragg (Gragg) was charged with attempted murder in two counts of a three-count information, originally with three other codefendants who were Sociz John Junatanov (Johnny); Georgeanna Vieweg (Vieweg); and Asror Junatanov (Oscar). Gragg was convicted in count I (the restaurant incident) of the lesser included offense of attempted voluntary manslaughter. Gragg was acquit...
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Opinion This is an appeal from an order of dismissal after defendant’s motion for summary judgment was granted. On April 9, 1985, plaintiff William Nathan Brooks, a minor, by and through his guardian ad litem, Elizabeth Brooks, filed a complaint alleging causes of action for personal injury caused by motor vehicle, premises liability, general negligence and products liability. P...
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Opinion A jury convicted Jose Luis Garcia of burglary of an inhabited dwelling (Pen. Code, §§ 459 & 460). 1 The court then found Garcia had a prior serious felony conviction (burglary of an inhabited dwelling) (§§ 667, subd. (a), 2 1192.7, subd. (c)(18)) 3 and sentenced him to prison for a six-year term for the burglary conviction and a consecutive five-ye...
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Opinion Statement of the Case Appellant was convicted on 3 counts of sodomy with a child under 14 years old (Pen. Code, § 286, subd. (c)) 1 and 3 counts of oral copulation with a child under 14 years old (§ 288a, subd. (c)). The jury also found true as to each count the special allegation that appellant was a person who occupied a position of special trust and committed an act of substantia...
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Opinion Introduction This case involves the custody of a minor born in California to a mother who is a member of a Canadian Indian tribe. It calls upon us to determine whether the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) requires the California courts to transfer jurisdiction over the minor to the Canadian Indian tribe. Facts On September 10, 1987, the Los Angeles County Department of ...
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Opinion Appellants Charles Ronald Roberson and Claudia Lenore Snyder sued respondents Evangelical Orthodox Church and several named and unnamed defendants on a plethora of intentional tort claims based primarily on respondents’ conduct in publicly revealing details of appellants’ confidential communications to members of the congregation and the public. On appeal, appellants argue the tri...
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*210Opinion Paul Demetrius Allen appeals from judgment of conviction entered after a jury found him guilty of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and robbery (Pen. Code, § 211). He also petitions for writ of habeas corpus, asserting inadequate assistance of trial counsel. We affirm the conviction and deny the writ petition. Facts At 3:30 a.m. on September 25, 1985, Roscoe Willi...
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Opinion State Farm Fire and Casualty Company, State Farm Mutual Automobile Insurance Company and Karen Parker (referred to collectively henceforth as State Farm) are defendants below in Riverside County Superior Court case No. Indio 45204, Patten, et al. v. State Farm Fire and Casualty Company, et al. In that action, State Farm moved for summary adjudication of certain issues pertaining to its dut...
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Opinion The issues presented by this appeal are whether counsel’s failure to advise respondent of his right to request a recommendation against deportation (RAD) from the sentencing court pursuant to 8 United States Code section 1251(b)(2), where defendant was subject to deportation as a result of his conviction, rendered counsel’s assistance constitutionally ineffective. And, if counsel ...
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Opinion Donna B. Ellis appeals from the trial court’s order imposing respondent State Compensation Insurance Fund’s (State Fund) lien upon *314 the settlement between Ellis and Wells Manufacturing, Inc. (Wells). She contends that the court erred in imposing the lien because the Witt v. Jackson issue was not decided. We agree and reverse. Facts and P...
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Opinion Statement of Facts Plaintiffs Mary Meninga and William Meninga appeal from a judgment of involuntary dismissal (Code Civ. Proc., § 581, subd. (f)(1)). The judgment followed the trial court’s order sustaining a demurrer to plaintiffs’ second amended complaint without leave to amend. Plaintiffs had alleged causes of action for employment discrimination, defamation, intentional ...
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Opinion This case involves questions of corporate successor liability. Appellant Cooper Laboratories, Inc. (Cooper) appeals from an order of the San Francisco Superior Court holding it potentially responsible, as successor in interest, for all damages allegedly incurred by Sandra and Michael Phillips (Phillipses) as the result of Sandra’s exposure to diethylstilbestrol (DES) in úter...
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Opinion WIENER, Acting P. J. This case involves a winding dirt road—Casa de Roca Way—in rural Alpine. Notwithstanding the apparent simplicity of this mundane subject, the controversy over whether this road is public or private and whether certain of the parties through adverse possession have acquired ownership rights to portions of a 50-foot strip through which the road runs—has gene...
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Opinion Statement of the Case and Facts At approximately 4 a.m. on February 29, 1988, Florence W. was asleep in her chair when she heard a crash. Someone had broken her sliding glass door to gain entry to her apartment. The assailant started to strangle her with his hands. He punched her in the face, pulled her off the chair, ripped off her clothes, and attempted to rape her. When he was unsu...
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Opinion A jury convicted Eucario Castrejon Cordero of first degree murder and found a firearm-use allegation to be true. Cordero con *278 tends the trial court committed error by not instructing on unreasonable self-defense and failing to clarify part of the first degree murder instruction. We agree with the latter contention, but find the error was harmless. I The ...
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Opinion Plaintiff Patricia Pierson appeals from a judgment favoring defendant Sharp Memorial Hospital, Inc. (Sharp), after the court granted Sharp’s motion to strike Pierson’s claim for strict liability. Pierson contends the court erred in not extending the doctrine of strict liability to injuries resulting from latent defects in hospital premises. We affirm. I Superior Court Proceedings In April...
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Opinion This is an appeal from the trial court’s decision awarding costs and attorney fees to respondents in an action arising from the sale of real estate. I. Background Facts In March 1982 plaintiffs Gary and Kathy Pirkig (respondents) purchased a home in Benicia, California, from James Cook and Joseph Eystad (sellers). Respondents were represented in the transaction by defend...
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Opinion The Department of Justice of the State of California (hereinafter Department) appeals from an order of the superior court granting a writ of administrative mandamus (Code Civ. Proc., § 1094.5) directing the Department “to issue a new license and permit to possess and/or transport and sell machine guns in the State of California” to Leroy Del Don, Jr. (Del Don). The judgment and order of t...
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Opinion Appellant was convicted of attempted driving under the influence. (Pen. Code, § 664; Veh. Code, § 23152, subd. (a).) The sole issue raised on appeal is whether this offense exists under California law. We first consider the language and intent of the penal statutes governing attempted crimes. Pursuant to Penal Code section 664,1 “Every person who attempts to commit any crime, but fails, ...
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Opinion Appellant lessor challenges the trial court’s order awarding attorney fees to respondent, the lessee, in an unlawful detainer action. We conclude that the trial court properly awarded attorney fees and affirm the order. I Appellant sued respondent and respondent’s business,1 a fast-food store, in unlawful detainer. On May 4, 1988, judgment was rendered in favor of respondent and against a...
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Opinion Defendant was convicted by a jury of violating Vehicle Code section 23152, subdivisions (a) (driving under the influence of alcohol) and (b) (driving with a blood-alcohol level of 0.10 percent or more). He appeals from the judgment, asserting errors in instruction. We find instructional error, and therefore reverse and remand for retrial. Definition of “Under the Influence” The jury was in...
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Opinion The superior court found appellant Lani Castro Cruz (Cruz) was the sole known heir for and entitled to possession of the whole of an estate which had escheated to the state. In this appeal Cruz challenges the portion of the court’s order prohibiting immediate distribution of the estate. She asserts she is entitled to immediate distribution and the state agrees. We also find delaying the...
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*381 Opinion Robin G. Williams petitions this court for a writ of mandate to overturn an order of the superior court transferring his action for wrongful termination to the municipal court. That order was issued by a judge who conducted settlement proceedings following arbitration and concluded based on his analysis of the pleadings and the history of the action that the contract cause of act...
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Opinion In this proceeding, petitioner David D. Schmitt, Jr., challenges the denial of his motion to specially set his dental malpractice action against real party Singhal for trial before expiration of the five-year period set forth in Code of Civil Procedure section 583.310.* 1 Under the facts of this case, we conclude the denial of petitioner’s motion was an abuse of discretion and will grant ...
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Opinion The City Council of the City of Redlands (City) and its individual members (collectively, City Council) appeal from an order of the trial court granting the petition of Stephen R. Selinger (Selinger) for a writ of mandate. The writ requires the City Council to acknowledge that Selinger’s tentative tract map was deemed approved because the City Council failed to act on the applicat...
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Opinion The appeal here is from a summary judgment, entered in favor of Allstate Insurance Company (Allstate) and its claim adjuster Susan Rossel (Rossel) in a first party action brought by Allstate’s insured Charles C. Twaite (plaintiff). Plaintiff’s complaint charged Allstate with common law, bad faith breach of contract, with breach of duties arising under section 790 et seq. of the In...
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*398 Opinion Introduction and Procedural History This action was commenced by plaintiff and respondent Continental Airlines, Inc. (Continental), in the Los Angeles Superior Court on December 3, 1979, and alleged, against defendant and appellant McDonnell Douglas Corporation (Douglas), causes of action for negligence, strict liability, deceit, breach of warranty and breach of...
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Opinion This case involves a negligence action filed by Dennis W. Williams, an injured pedestrian, for damages resulting from a trip and fall accident on a public sidewalk against the City of San Jose and Calvin Foster, the owner of the property abutting the defective sidewalk. Apparently, the surface of the sidewalk had been made uneven by the roots *513 of a tree planted on...
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Opinion Statement of the Case After a contested hearing on a supplemental petition, the juvenile court found that the minor Edwardo L. (1) committed an assault with a deadly weapon during which he intentionally inflicted great bodily injury (count 1, Pen. Code, §§ 245, subd. (a), 12022.7); (2) committed misdemeanor vandalism (count 2, Pen. Code, § 594, subd. (b)(3)); and (3) violated...
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Opinion J. M. appeals from a judgment freeing her daughter A. M. from her custody and control pursuant to Civil Code section 232, subdivisions (a)(1) (abandonment) and (a)(7) (child in supervised out-of-home placement for one-year period).1 We conclude that the notice of appeal was not timely filed and consequently dismiss the appeal. Procedural Background On March 18, 1987, respondent filed its...
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Opinion Appellants and cross-complainants, Cal-Jones Properties and Ralph Gomez, appeal from a judgment of dismissal 1 of their cross-complaint for breach of fiduciary duty. 2 The trial court ruled that their claim was in fact an indemnity claim and therefore barred due to cross-defendants and respondents Evans Pacific Corporation and Bernice McClellan’s good faith s...
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Opinion Kenneth Ten Eyck (plaintiff) appeals from an order of the Los Angeles Superior Court which granted a motion *542 for summary judgment in favor of defendant Industrial Forklifts Co. (Industrial). 1 For the reasons discussed below, his appeal is untimely and must be dismissed. Procedural Background On October 3, 1985, plaintiff filed a complaint for...
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Opinion Russell J. Clark and his family trust (Clark) appeal a judgment denying his petition for writ of mandate. In his petition, he challenged a decision of the Rancho Santa Fe Association (the Association) turning down his application to subdivide his Rancho Santa Fe property. Pursuant to a stipulation of general reference, the trial was heard by the Honorable Charles W. Froehlich, Jr....
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Opinion Charles Steven Acevedo’s motion to suppress was denied, and he pleaded guilty to possession of marijuana for sale. Under compulsion of United States Supreme Court authority, we agree the warrantless search of a lunch bag seized from the trunk of his car was unlawful and reverse accordingly. I In October 1987, federal drug enforcement agents in Hawaii seized a Federal Express package contai...
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Opinion Plaintiff appeals from a summary judgment in favor of defendants in an action for wrongful constructive discharge. 1 We conclude *664 that subsequent California Supreme Court decisions compel dismissal of plaintiff’s discharge-related tort claims regardless of whether summary judgment was warranted at the time of the trial court’s ruling (Foley v...
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Opinion A conservatorship was established over the persons and estates of Regina Bookasta and her now-deceased husband E. H. Bookasta under provisions of Probate Code section 1801 et seq. 1 Subsequently, the Bookastas petitioned the court under section 1873 to establish their legal capacity to enter into certain transactions which they had undertaken, including revocation of a family trust. T...
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Opinion In this malicious prosecution action we are called upon to resolve the clash between the claimed right to enjoin a trade libel and the constitutional right of free speech. The case had its genesis in an earlier but unsuccessful attempt to obtain an injunction against the publication of a report concerning the safety of plastic pipes for domestic water use. The published report was...
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214 Cal.App.3d 878 (1989) 263 Cal. Rptr. 64 ANNAMARIE E. IBRAHIM et al., Plaintiffs and Appellants, v. FORD MOTOR COMPANY, Defendant and Respondent. Docket No. A040454. Court of Appeals of California, First District, Division Four. October 13, 1989. *882 COUNSEL Kemnitzer, Dickinson, Anderson & Barron, Roger Dickinson, Bryan Kemnitzer and Nancy Barron for Plaintiffs and Appellants. Richard A....
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214 Cal.App.3d 957 (1989) 266 Cal. Rptr. 657 ARTESIA MEDICAL DEVELOPMENT CO., Plaintiff and Appellant, v. REGENCY ASSOCIATES, LTD., et al., Defendants and Respondents. Docket Nos. B005802, B018233. Court of Appeals of California, Second District, Division Seven. July 13, 1989. *959 COUNSEL Selvin, Weiner & Ruben, Beryl Weiner and Judith R. Seligman for Plaintiff and Appellant. Trope & Trope, Euge...
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Opinion Defendants appeal from a judgment after verdict based upon their written guaranties of debt obligations to plaintiff. The sole issue raised by this appeal is whether the plaintiff’s cause of action for breach of contract was barred by the applicable statute of limitations such that a directed verdict should have been entered for defendants. We conclude that defendants signed a val...
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Opinion William Walker (Bill) appeals portions of the interlocutory judgment dissolving his marriage to Deanna. He claims the trial court erred in both characterizing and valuing the employer-granted stock options. He is correct. I Deanna and Bill separated October 27, 1985, after an 18-year marriage. On August 22, 1983, Bill began a new job with Caremark. During his employment, and before separa...
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*760 Opinion I. Background Appellant Harry Benjamin Miller II was charged with six felony counts of sale of heroin (Health & Saf. Code, § 11352) and one felony count of possession of heroin (Health & Saf. Code, § 11351). Pursuant to a negotiated plea bargain, appellant pled guilty to three sale counts, and the trial court dismissed the remaining four counts with a ...
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Opinion Defendants City of Glendale (City), James M. Rez and John F. Hoffman appeal from the order granting plaintiff Lorraine Loder’s motion for a preliminary injunction. That order restrained defendants from enforcing the City’s drug testing program pending trial. Background In her original complaint for injunctive relief Ms. Loder alleged that the City’s mandatory drug testing program fo...
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Opinion Petitioner and defendant Dialysis at Sea, Inc. (DAS), filed a petition for writ of mandate, prohibition or other appropriate relief seeking to overturn the trial court’s ruling denying its motion to quash service of summons for lack of personal jurisdiction. Pending our determination of the petition we issued an order to show cause and ordered that the action be stayed. We now discharge...
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OPINION We publish our opinion in this case because we believe it involves a legal issue of continuing public interest, that is, the unnecessary burden placed on California taxpayers and on an already overburdened Attorney General's office and Court of Appeal by meritless and even frivolous criminal appeals. Without sacrificing fairness or the rights of defendants, we owe the public an efficient a...
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*846 Opinion 1. Introduction Saratoga Savings and Loan Association appeals from a judgment confirming arbitration awards in favor of Ronald Tate and David Lazares and awarding each of them attorney fees and costs. Saratoga’s principal premise is that in form and substance the arbitration proceedings were so unfair the resulting award should have been vacated. Saratoga’s principal complain...
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*598 Opinion I. Frank Edward Brown appeals from the judgment of conviction after a jury found him guilty of vehicular manslaughter (Pen. Code, § 192, subd. (c)(1)), and of causing injury or death while attempting to elude police pursuit (former Veh. Code, § 2800.2 [now § 2800.3]). 1 He claims that the trial court erroneously denied his Wheeler 2 motion,...
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216 Cal. App. 3d 764 (1989) 265 Cal. Rptr. 211 ROBERT YOUNGBLOOD, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and CITY AND COUNTY OF SAN FRANCISCO, Respondents. Docket No. A043016. Court of Appeals of California, First District, Division Four. December 15, 1989. *767 COUNSEL Kathryn E. Ringgold and Ringgold & Ayoob for Petitioner. Louise H. Renne, City Attorney, and Nivedita Glace for ...
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Opinion A petition was filed against Christopher R., seeking to have him declared a ward of the court (Welf. Inst. Code, § 602) by reason of his having possessed a controlled substance, lysergic acid diethylamide (LSD), for sale (Health & Saf. Code, § 11378). Following an order quashing a search warrant the petition was dismissed. The People appeal. We have had occasion previously to note with re...
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Opinion Petitioner Torrey Pines Bank (the Bank) seeks mandate directing the superior court to vacate its ruling denying the Bank’s motion for summary judgment on its complaint against real party in interest William White. We find the Bank is entitled to judgment as a matter of law because the affirmative defenses asserted in White’s answer to the Bank’s complaint are barred under principles of re...
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Opinion The County of Los Angeles, the Board of Supervisors of Los Angeles County, Richard Dixon, Chief Administrative Officer of Los Angeles County, Mark Bloodgood, Auditor-Controller of Los Angeles County, the Municipal Court of the Los Angeles Judicial District, and its court administrator, Edward Kritzman (collectively referred to as County) appeal from a judgment granting issuance of a peremp...
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Opinion Defendant Raymon Eric Griggs appeals from the judgment entered following his jury trial convicting him of assault with a deadly weapon (count I; Pen. Code, § 245, subd. (a)(2)), 1 discharging a firearm at an occupied motor vehicle (count II; § 246), and carrying a concealed weapon on his person (count III; § 12025, subd. (b)). In addition, it was found as to count I that defendant per...
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Opinion During the summer of 1984, defendant and his wife lived with their four-year-old daughter. One day that summer, while defendant was lying naked on the living room couch, he made his daughter rub lotion up and down on his penis and instructed her not to tell her mother. 1 Charged by information with one count of violating Penal Code section 288, subdivision (a), defendant initially p...
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Opinion James F. Pifer appeals from a judgment finding him guilty of violating Penal Code section 4573.6 for possession of an inmate-made hypodermic syringe at Tehachapi State Prison. Appellant asserts the trial court erroneously denied his Penal Code section 1538.5 motion to *959 suppress an X-ray search conducted on him as he entered Tehachapi State Prison. Appellant w...
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Opinion The superior court ordered Ramon Santellanes’s probation revoked (Pen. Code, 1 § 1203.2) and sentenced him to state prison for a term of six years. Santellanes appeals the revocation of probation on statutory and due process grounds. I Factual and Procedural History In 1986 Santellanes was charged with committing a lewd act on a child under the age of 14 in violation of section ...
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Opinion The trial court divided David’s military retirement pension in a partition action filed by Sharon. We hold the trial court properly characterized the pension as community property, and that former Civil Code 1 section 5124 does not create a bar to common law equitable partition actions. The judgment is affirmed. Factual and Procedural Background Sharon and David dissolved their ma...
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*1145 Opinion Tri-Growth Centre City, Ltd., and certain of its partners (hereafter referred to as Tri-Growth or plaintiffs) appeal a summary judgment in favor of the law firm of Silldorf, Burdman, Duignan & Eisenberg et al. (hereafter referred to as the law firm or defendants). Tri-Growth sued to impose a constructive trust and for damages alleging breach of fiduciary duty and in...
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Opinion This is an appeal from the denial of a preliminary injunction. For the reasons set forth below we shall remand the case to the trial court. Statement of Facts On May 27, 1988, the Board of Supervisors (Board) of the City and County of San Francisco (City) issued a public notice that on June 27, 1988, it would hold a hearing on various reductions in medical and health services provided by ...
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Opinion On October 19, 1988, Petra B. was declared a dependent child of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivision (a)1 and placed with her parents. At issue in this case is whether Petra B.’s health was in such danger as to justify intervention by the department of social services and the juvenile court. We agree with the parents that since the parent-c...
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Opinion A jury convicted Jerome Gapelu of vehicular manslaughter (Pen. Code, § 192, subd. (c)(3)), driving under the influence causing injury (Veh. Code, § 23153, subd. (a)), and driving with an alcohol blood count of 0.10 percent or higher (Veh. Code, § 23153, subd. (b)). He was granted probation and appeals, claiming the People failed to establish prima facie proof he committed the offenses, ind...
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Opinion Introduction By second amended complaint, plaintiff Jerry Goldman sought compensatory and punitive damages, alleging religious harassment and discrimina *1090 tion at his place of employment. Named as defendants were Wilsey Foods, Inc., the corporate former employer of plaintiff and five of plaintiff’s former fellow employees, Steven Gilpin, Wardell Macon, Lindse...
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I agree with the majority’s conclusion that the requested documents are privileged. I write separately, however, because in my view, the majority has misperceived the Durants’ contentions, and as a *1229result has developed a legal analysis different from the one I believe is warranted. Contrary to the majority’s understanding of the record, it seems clear the heart of the Durants’ contention is K...
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Opinion Plaintiff appeals from a judgment of dismissal entered after the trial court granted defendant George Lobley’s motion to dismiss for failure to serve within two years. We affirm, finding no abuse of discretion. Facts On August 22, 1985, plaintiff filed an action for medical malpractice for injuries sustained in a surgery performed by defendant Dr. Lobley in May of 1982. Sometime the...
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Opinion A jury found defendant, Northwestern National Life Insurance Company, breached the covenant of good faith and fair dealing in its handling of plaintiff Joellen Faria’s medical claim. The jury awarded plaintiff $6,000 in general damages and $100,000 in exemplary damages. Defendant appeals contending plaintiff’s claims are preempted by the Employee Retirement Income Security Act of ...
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216 Cal.App.3d 1099 (1989) 265 Cal. Rptr. 301 PAUL GLEN JASPERSON, Plaintiff and Appellant, v. JESSICA'S NAIL CLINIC et al., Defendants and Respondents. Docket No. B035656. Court of Appeals of California, Second District, Division Four. December 20, 1989. *1102 COUNSEL Allred, Maroko, Goldberg & Ribakoff, Gloria Allred, Nathan Goldberg and Carla D. Barboza for Plaintiff and Appellant. Robert ...
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Opinion Following denial of a motion to suppress evidence (Pen. Code, § 1538.5), Vernon Darnell King entered a negotiated no contest plea to possessing a controlled substance for sale (Health & Saf. Code, § 11351.5). The court suspended imposition of sentence and placed him on three years’ probation including a condition he serve one hundred and eighty days in custody. King appeals. ...
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Opinion Defendant Gilbert Silverman appeals from the “order made and entered by the court [which] vacated that same court’s previous order . . . and denied defendant’s motion to quash reinstating plaintiff’s complaint, default and default judgment.” The trial court reversed its earlier ruling vacating the default judgment because Mr. Silver-man did not file his motion to vacate within one year ...
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Opinion In a petition dated December 12, 1988, it was alleged minor came under the provisions of Welfare and Institutions Code section 602 because he escaped while in the custody of the Orange County probation officer on “home confinement.” (Welf. & Inst. Code, § 871.) The petition was sustained after a court trial. Thereafter, on January 19, 1989, a subsequent petition was filed charging...
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Opinion The Saugus Teachers’ Association (STA) and Sally Dixon (collectively petitioners) obtained a writ of mandate commanding the Board of Trustees of the Saugus Union School District (Board), Board President Jeffry White, Board Clerk Marilynn Blaylock, Board Members Betty Lund, Daniel Spangle, and Michael Rayfield, and Board Secretary and Superintendent of Schools James Foster (collect...
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*1194 Opinion Statement of the Case Appellant was convicted on his guilty plea of violating Penal Code section 12021, subdivision (a) 1 (felon in possession of a concealable firearm) on December 13, 1985. Appellant entered this plea on the condition the court could sentence him to no more than two years in state prison. The court referred the matter to the probation department and set the...
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216 Cal. App. 3d 1208 (1989) 265 Cal. Rptr. 347 BIXEL ASSOCIATES, Plaintiff, Cross-defendant and Appellant, v. CITY OF LOS ANGELES et al., Defendants, Cross-complainants and Respondents. Docket No. B037251. Court of Appeals of California, Second District, Division One. December 21, 1989. *1210 COUNSEL Greenberg, Glusker, Fields, Claman & Machtinger, Norman H. Levine and Kathleen A. O'Brien fo...
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*1262 Opinion Appellant Nancy Jane Baker filed a complaint with respondent State of California Labor Commissioner (hereinafter Commissioner), seeking overtime pay from her former employer, respondent Fidelity Brokerage Services, Inc. (hereinafter Fidelity). At the hearing on Baker’s complaint, Fidelity challenged the Commissioner’s jurisdiction by asserting that the matter was subject to arbi...
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216 Cal.App.3d 1039 (1989) 265 Cal. Rptr. 486 THE PEOPLE, Plaintiff and Respondent, v. LESLIE BRIGHAM, Defendant and Appellant. In re LESLIE BRIGHAM on Habeas Corpus. Docket Nos. A039402, A043283. Court of Appeals of California, First District, Division Two. December 20, 1989. *1041 COUNSEL Paula Rudman, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, A...
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Opinion Northwood Homes, Inc. (Northwood), appeals from the judgment below denying its challenge to the validity of an “open space ordinance” adopted as an initiative measure by the voters of the Town of Moraga. We will affirm for the reasons we explain. Facts In 1980, Northwood, an experienced real estate developer, acquired an option to purchase two large undeveloped tracts of land situat...
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Opinion Carol Farron, Ted Fang and the San Francisco Independent (appellants) appeal from the judgment entered in favor of the respondent City and County of San Francisco (City) following the trial court’s granting of a motion for summary judgment. Appellants contend that the trial court erred in determining that the issue of whether the Ralph M. Brown Act (Brown Act) (Gov. Code, § 54950 et seq...
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Opinion Jose Perez, defendant and appellant (Perez), appeals his jury trial conviction for selling marijuana in violation of Health and Safety Code section 11360, subdivision (a). Two points are raised. The prosecution, by a supplemental “letter-brief,” concedes an error in arithmetic in the computation of Perez’s presentence credits. Perez claims entitlement to five days additional credit—th...
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Opinion Plaintiffs Victor Rink, Leo Bianchi, Helen Bianchi, Peter S. Bianchi, Marcia Bianchi, and Laura Bianchi appeal from a judgment in *1365 favor of defendant City of Cupertino (hereafter, the City). The City cross-appeals that portion of the judgment which denies its request for attorney fees and costs. We affirm in both appeals. Facts Plaintiffs, who are members of the same family, ...
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Opinion In this proceeding we are asked to decide whether a private citizen may institute and maintain a petition under the Lanterman-Petris-Short Act (LPS) (Welf. & Inst. Code, § 5000 et seq.) to appoint a conservator of the person when the county’s conservatorship investigation officer refuses to do so. We shall conclude that to permit such action by a private individual would violate t...
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Opinion Introduction Plaintiff Nancy Wagner appeals from a summary judgment entered in favor of defendant Glendale Adventist Medical Center. Statement of Facts In 1969, defendant hired plaintiff as a physical therapist to work in the rehabilitation institute. Upon seeking employment with defendant, plaintiff completed and signed an application form which stated in pertinent...
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Opinion Defendant appeals the denial of his motion to withdraw his plea of guilty to multiple felony counts in the municipal court on the basis that the pleas were legally infirm and the court abused its discretion in failing to grant his motion to withdraw his plea. Because we are convinced the plea was validly entered notwithstanding defendant’s pro se status, and the court did not abuse its ...
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Opinion We conclude petitioner, J. Allen Radford Company (JAR-CO), the nonsettling defendant who opposed a motion to confirm the good faith of a “sliding scale recovery agreement” 1 (Code Civ. Proc., § 877.6), 2 is entitled to see the relevant terms of the confidential settlement agreement. We thus conclude the superior court erred in withholding the settlement agree...
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Opinion Willie Gene Lloyd, Jr., appeals from an order finding him to be in violation of probation on two prior cocaine-related felony convictions. We affirm. *1427 Facts At approximately 9 p.m. on December 14, 1987, Police Officer Edmond Burns saw appellant’s brother, Calvin Lloyd, drive through a red light. Officer Burns activated the lights on his motorcycle to have Calvin pull over. Ca...
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Opinion A deputy attorney general assigned to assist a grand jury in its investigation is immune from liability to any person wrongfully indicted or accused after the investigation. Lynn D. Harmston, a Napa County (County) deputy sheriff, sued the County, the members of the County grand jury, Charles R. B. Kirk (a deputy attorney general who acted as special counsel to the grand jury), and th...
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216 Cal. App. 3d 1395 (1989) 265 Cal. Rptr. 539 TERI BETHMAN et al., Plaintiffs and Appellants, v. CITY OF UKIAH, Defendant and Respondent. Docket No. A036388. Court of Appeals of California, First District, Division Three. December 29, 1989. *1397 COUNSEL Thomas M. Witte and Elmendorf & Witte for Plaintiffs and Appellants. Moris Davidovitz, Scott D. Raphael and Fisher & Hurst for Defenda...
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Opinion Appellant Lyle L. Farner challenges the trial court’s denial of his motion to quash a writ of execution which the clerk of the *1373 court issued based on a previous order awarding respondent Shirley Farner 43.75 percent of his military retirement pay retroactive to the couple’s date of separation. Specifically, Mr. Farner complains that the order establishing Mrs. Farner’s interest i...
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Opinion The issue presented is this: If an agency of local government conditions its approval of a subdivision plan submitted by *1313 landowner A on the construction of a road from the nearest public thoroughfare to the adjacent landlocked property of landowner B, can A require B to shoulder a portion of the road’s construction costs? Our holding, which is limited to the pec...
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Opinion The petition for writ of mandate was filed March 28, 1989. It challenges a denial of a Code of Civil Procedure section 170.6 *44 disqualification motion as untimely and challenges a refusal to appoint the public defender. On March 30 we issued a temporary stay of further proceedings in the underlying criminal action and requested preliminary opposition. On April 13 the People file...
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Opinion This legal malpractice case resulting in a judgment of approximately $1.1 million, in favor of the plaintiff, Chester A. Holliday, is the aftermath of the events described in our unpublished opinion in People v. Holliday, reversing Holliday’s conviction of involuntary manslaughter relating to the killing of his wife. (See People v. Holliday ...
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*263 Opinion Plaintiff California Concrete Co., Inc. (California Concrete), has appealed from a judgment in favor of defendant Beverly Hills Savings & Loan Association, a federal savings and loan association (Beverly Hills Savings), following the granting of Beverly Hills Savings’ motion for summary judgment. Facts In 1981, Beverly Hills Savings and Loan, ...
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Opinion The Mobile Home Rent Review Board of San Luis Obispo County appeals from the trial court’s judgment of peremptory writ of mandate ordering it to accept respondent Jerry R. King’s application for rent increase at respondent’s mobilehome park. Appellant had refused to process the application because copies of respondent’s federal income tax returns for 1985 and 1986 were not include...
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Opinion Introduction Hock Investment Company, Inc. (Hock) appeals a judgment of dismissal following the trial court’s sustaining of a demurrer without leave to amend its complaint against the City and County of San Francisco (City) and various City officials. The complaint, which sought declaratory relief and was accompanied by a petition for writ of mandate, challenged a 1982 condom...
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Opinion Appellants Robert M. Peck, as trustee of the Robert M. Peck, M.D., Inc. Defined Benefit Pension Trust, and Ruth R. Peck (collectively referred to as Peck) appeal from an order quashing their levies of execution. We conclude the trial court erroneously quashed the levies of execution rather than resolving any issues of priority through the appropriate statutory scheme. The judgment is reve...
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Opinion Thomas Bradley Oliver appeals his misdemeanor conviction by a jury of violating Vehicle Code section 23152, subdivision (a) (driving a vehicle while under the influence of an alcoholic beverage). The trial court dismissed another count after the jury was unable to reach a verdict on whether he violated Vehicle Code section 23152, subdivision (b) (driving with a blood-alcohol level of 0.10 ...
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Opinion Bruce Wight appeals from order of October 18, 1988, denying his motion to quash writ of execution for unpaid child support and interest thereon in the sum of $30,596.40, based on a 1970 interlocutory judgment of dissolution of marriage which ordered him to pay child support of $25 per week beginning March 14, 1970. 1 Factual Background Bruce and Sharon Wight were...
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Opinion Introduction Appellant was convicted by jury of violation of Vehicle Code section 23152, subdivision (a), driving while under the influence of alcohol, and section 23152, subdivision (b), driving with 0.10 percent or more of alcohol in his blood. He admitted a prior similar conviction. He was placed on probation, and appeals. In Burg v. Municipal Court (1983) 35 Cal.3d 257 [198 Cal.Rptr. ...
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Opinion Terry L. Barns was discharged from his employment with Areata Redwood Company (Areata) due to a disability caused by on-the-job injuries. He applied to the Workers’ Compensation Appeals Board (Board) for benefits under Labor Code section 132a, 1 which prohibits discrimination against industrially injured workers. The workers’ compensation judge (WCJ) and Board found that Arcata’s cond...
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Opinion By a misdemeanor complaint filed on January 20, 1988, appellant was charged in count I with a violation of Vehicle Code section 23152, subdivision (a) (driving while under the influence); two prior convictions of driving while under the influence were alleged. It was further alleged that appellant had a blood-alcohol level of 0.20 percent or higher within the *1670meaning of Vehicle Code s...
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Opinion Plaintiff Alfred J. Davis appeals from the superior court’s order quashing service and the ensuing judgment dismissing plaintiff’s action against defendant Allstate for failure to serve summons and *1231 complaint within three years of the commencement of the action. (Code Civ. Proc., 1 § 583.210.) We will reverse the order and judgment for the reasons stated below. Background ...
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*1368 Opinion In this appeal we hold that an insurance policy for medical malpractice did not require the insurer to defend a wrongful termination lawsuit. Facts Radiologist Gail Portanova, M.D., was employed by appellant Inglewood Radiology Medical Group, Inc. 1 In March 1981, Dr. Portanova’s employment with appellant was terminated. Thereafter, Dr. Portanov...
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Opinion Defendant Frank D. Wood (Wood) 1 appeals from a judgment purporting to enforce a written settlement agreement. At issue is whether a motion to enforce a settlement agreement under Code of Civil Procedure section 664.6 may be considered in an action other than the action in which the settlement was made. We hold it may not, and reverse the judgment. Facts Wood is a founder and form...
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Opinion The sole issue presented by this appeal is whether the corrosion of a house foundation due to soil contamination is a covered peril under an “all-risk” homeowners insurance policy. The trial court found that it was excluded under the terms of the policy and granted summary judgment in favor of the insurer. We agree and affirm the judgment. I The Complaint Plaint...
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*1521Opinion The question presented is whether the juvenile court may detain an out-of-custody minor who appears, without counsel, for a pretrial conference without notice he or she might be detained. I Each of these minors sought writs of habeas corpus after being detained by the juvenile court when they appeared out of custody, without counsel, for a pretrial conference. We granted each a tempor...
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216 Cal. App. 3d 627 (1989) 266 Cal. Rptr. 662 AUTOMATIC SPRINKLER CORPORATION, Plaintiff and Appellant, v. SOUTHERN CALIFORNIA EDISON COMPANY, Defendant and Respondent. Docket No. D009059. Court of Appeals of California, Fourth District, Division One. August 15, 1989. *629 COUNSEL Buchalter, Nemer, Fields & Younger, Bernard E. Le Sage, Steven M. Schott and Annee Della Donna for Plaintiff and...
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*1177 Opinion Barbara M. Fenlon filed this action against Ronnie and Earl Brock, Jo and John Boyd and San Juan Travel for conversion of personal property, fraud, rescission and restitution and breach of contract. The dispute related to the sale, and subsequent repossession, of a travel agency by the Brocks and the Boyds to Fenlon. The Brocks and the Boyds cross-complained against...
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Opinion A jury convicted Lawtis Donald Rhoden of rape (Pen. Code, § 261, subd. (2)), 1 forceful sexual penetration (§ 289, subd. (a)), and sexual battery (§ 243.4); an allegation he had suffered a prior serious felony conviction within the meaning of sections 667 and 1192.7, subdivision (c) was found true. He appeals, citing numerous errors. On June 2, 1984, 17-year-old Christine S. was wal...
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Opinion This appeal requires us to construe Civil Code section 4800.8 in conjuction with the statutory scheme regulating distribution of survivor and death benefits under the County Employees Retirement Law of 1937. (Gov. Code, § 31450 et seq.; hereinafter Retirement Law.) In the present case, the lower court ordered a county employee retirement association, joined as a party in a marital dissolu...
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I concur in the majority opinion insofar as it holds that speech alone may violate the Unruh Civil Rights Act. But I dissent from that part of the opinion which holds Valentino did not violate the Act because her speech was “neutral and factually accurate” and thus protected by the First Amendment. (Maj. opn., ante, p. 1294.) The jury expressly found that Valentino ejected, or aided, incited, or c...
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Opinion Prior to 1988, the prosecution of a felony in California was barred when the same charge had been twice previously dismissed. Penal Code section 1387.1 was enacted to create an exception to that rule for certain violent felonies. If constitutional, it allows a third opportunity to prosecute after two prior dismissals, assuming specific enumerated circumstances apply. *1033...
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Opinion Victor Duron Gonzales pleaded guilty to one count of possession of heroin after his motion to suppress was denied. Notwithstanding the arresting officer’s own misgivings, viewed objectively and considering the totality of the circumstances, we believe there was adequate probable cause to arrest and affirm accordingly. I This is the latest in a seemingly endless line of cases springing fro...
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*223 Opinion The parties (hereinafter referred to as Husband and Wife) were married on July 24, 1954, and separated on May 15, 1977. At approximately the time of the separation, Husband, a former serviceman eligible for Air Force retirement, filed a disability claim with the Veterans Administration, and elected to waive a portion of his retirement pay to receive Veterans Administration compen...
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Opinion These are appeals from judgments of conviction, after court trials, of illegal camping. (Santa Barbara Mun. Code, § 15.16.070.)1 Although each case was tried separately, the appeals were briefed and argued jointly as they present identical issues for decision. In the case of appellant Edward McCutchen Mannon, the evidence shows that he was cited at 4 a.m. one morning on property owned by t...
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Opinion Factual and Procedural History This case arises from an elaborate scheme in which defendant and a codefendant defrauded or attempted to defraud a number of merchants through payment for goods with stolen, altered cashier’s checks, using false identification. Defendant was charged with numerous offenses including three counts of conspiracy to commit the crime of grand theft (Pen. Code,...
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*1503 Opinion Deborah M. Wienholz, an incompetent person, by and through her conservator, Barbara Wienholz, (collectively appellant) appeals from a superior court order granting $434,149 in attorney fees to the law firm that settled her medical malpractice action against Kaiser Foundation Hospitals. Appellant contends the fee award should not have exceeded $288,458, which was the...
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Opinion Appellants Thomas J. and Josephine Porreco appeal from the dismissal of their superior court action under Code of Civil Procedure sections 583.310 and 583.360 for failure to bring the case to trial within five *117 years after the filing of the complaint. Appellants contend that the parties’ stipulation to submit the case to arbitration precluded dismissal. State...
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Opinion The Board of Prison Terms (Board) appeals the order partially granting Wendell Holmes’s petition for habeas corpus. Although we dismiss the appeal as moot, we discuss part of the order requiring the Board to determine why Holmes should not be released within one year of his parole suitability finding or to give specific reasons why his release date should be beyond that one-year time.1 We ...
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Opinion This appeal by King Cavalier (Cavalier), Lehman Brothers Kuhn Loeb, Inc. (Lehman Brothers), together with Shearson Lehman/American Express, Inc., and Shearson Lehman Brothers, Inc., the successor corporations to Lehman Brothers, is from a judgment entered on a jury verdict finding that appellants had breached their fiduciary duties to respondents Elmore Duffy (Duffy), Frank Ghilar...
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