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All Reporters → cal-app-lexis → Volume 1993

Opinions in cal-app-lexis Volume 1993

Opinion This is an appeal after an order of dismissal for failure to serve the summons within two years after commencement of the action. Appellants, American Western Banker (AWB) and guarantors of some of its corporate debt, sued two certified public accounting firms (collectively respondents) for negligence, fraud and related causes of action. In various ways, all causes of action alleg...
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Opinion Plaintiffs ask this court to reverse the entry of a summary judgment in their “toxic-tort” action. We will reverse the summary judgment. In the published portion, we hold that the cost of future medical monitoring, to detect the onset of disease caused by exposure to pollutants, is a “detriment” under Civil Code section 3333. Statement of Case and Facts Defendants m...
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Opinion Nicki P. and Benjamin R. appeal from the order terminating their parental relationship (Welf. & Inst. Code1, § 366.26) with their son, Edward R. The parents contend termination hearings conducted pursuant to this code provision deprive them of equal protection under the law. They assert section 366.26 does not permit evidence of present circumstances to be adduced while consideration of a...
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Opinion This case involves the pleading and notice requirements of a summary judgment proceeding, We are presented with the *62 question whether the trial court may grant a motion for summary judgment upon a ground of law not explicitly tendered by the moving party, i.e., a ground of law identified by the trial court rather than by the movant, if application of that law to a...
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Opinion Defendant Juniper Garden Town Homes, Ltd. (Juniper), appeals from the denial of its motion to vacate a sister state money judgment entered in favor of plaintiff Tsakos Shipping and Trading, S.A. (Tsakos). Juniper contends: (1) the underlying judgment was void because: (a) process was never properly served on Juniper, (b) Juniper’s former general partner had no actual or apparent a...
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Opinion Judgment was entered for defendants on plaintiffs’ complaint. Defendants filed a memorandum of costs and plaintiffs moved to tax those costs. Plaintiffs then filed a notice of appeal. Plaintiffs’ motion to tax costs was subsequently denied and defendants were awarded expert witness fees pursuant to Code of Civil Procedure 1 section 998. Plaintiffs assert that the trial ...
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*211 Opinion Introduction Petitioner, Russell Hartsuiker, seeks review of an opinion and order of respondent Workers’ Compensation Appeals Board (WCAB or Board) denying reconsideration of a decision of the workers’ compensation judge (WCJ) declining to reserve jurisdiction to award further temporary total disability indemnity in the event of hospitalization or surgery occurr...
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*410Opinion This is an appeal by Linda H. (mother) from a judgment terminating her parental rights as to her two children, Crystal J. and Scott S., following a selection and implementation hearing held in accordance with Welfare and Institutions Code1 section 366.26. Mother contends the judgment should be reversed and a new hearing held because (1) the assessment report prepared by the department ...
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Opinion Avis Rent A Car System, Inc. (Avis), is being sued by a motorist injured when her car was rammed by a stolen Avis vehicle being chased from the scene of a shoplifting. Avis’s liability is premised upon its failure to take adequate precautions to prevent theft of its vehicles. We conclude that the “special circumstances” doctrine arising from the California Supreme Court decision in Ric...
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*1242 Opinion I. Introduction In the published portions of this opinion, we address certain legal issues raised by a dispute between a city and a county, concerning the provision of emergency medical services to areas within the county, but outside the city. II. Procedural History and Facts The City of Petaluma (City) appeals from a judgment construing two sections...
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Opinion A jury convicted Charles Burnett and Herbert Shedd (appellants) of first degree murder (Pen. Code, 1 § 187) and the trial court sentenced each of them to a 25-years-to-life state prison term. They contend the judgment must be reversed because the trial court: (1) made disparaging comments about defense counsel, (2) prematurely determined prosecution witnesses were not accomplices, (3)...
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Opinion Introduction Arlene and Donald Warner appeal from a judgment granting specific performance of an oral agreement to purchase real property in favor of respondents Gloria and Kenneth Sutton. The Warners contend on appeal that substantial evidence does not support the judgment and that numerous errors of law compel reversal. *418 The Suttons cross-appeal the de...
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Opinion Petitioner General Motors Corporation (General Motors) sought summary judgment on the ground that the real party in interest, James Ticich (Ticich) had relinquished his right to pursue this action against it when he executed a release of “any and all persons, firms, and corporations.” We hold that this general release operates to release General Motors even though it was not speci...
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Opinion In this case the trial court prevented plaintiff’s traffic expert from offering any testimony about reconstruction of the accident in which plaintiff was injured. We reverse because there is no dispute the expert was qualified to give reconstruction testimony and the record discloses the expert’s identity was disclosed, along with a description of his *428 proposed te...
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Opinion Appellants Enrique Carlos Arango (Arango) and Pedro Antonio Rizo 1 (Rizo) were charged with sale or transportation of cocaine (Health & Saf. Code, 2 § 11352, subd. (a)), possession for sale of cocaine (§11351), and conspiracy to sell or transport cocaine (Pen. Code, § 182). A 10-year enhancement (the cocaine exceeded 25 pounds by weight) was alleged as to eac...
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Opinion Defendant and appellant Kermis T. Thompson appeals from the judgment after a jury trial in which he was convicted of first degree murder with special circumstances and attempted rape. In the published portion of this opinion, we conclude a defendant may be guilty of attempted rape when the defendant intends to have nonconsensual intercourse with a live victim, but unbeknownst to t...
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*497 Opinion Mercury Insurance Group filed a declaratory relief action against its insured, Steven Negrette, and his employer, Checkerboard Pizza, seeking confirmation of its decision to deny coverage to Negrette based on an exclusion for business use of a nonowned vehicle. The trial court granted summary judgment in favor of Mercury, and Checkerboard Pizza appeals. We reverse. I Mercury ...
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Opinion Defendant National Union Fire Insurance Company of Pittsburgh, Pa., appeals from a judgment for more than $7 million obtained against it by plaintiff Xebec Development Partners, Ltd. (XDP) on claims assigned to XDP by insureds under a policy of directors and officers liability and corporate reimbursement insurance (the D&O policy) issued by National Union. XDP cross-appeals from t...
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Opinion Plaintiff Regina Compton (Compton) appeals from a judgment entered in favor of defendant City of Santee (City) after the granting of City’s motion for summary judgment. City’s motion urged, among other things, that City was immune from liability pursuant to Government Code 1 section 830.6. Compton contends the trial court erred in granting the motion, arguing a genuine ...
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Opinion On this appeal from a judgment granting a petition of Chrysler Corporation (Chrysler) for a peremptory writ of mandate under Code of Civil Procedure section 1094.5, we are presented with a question of statutory construction concerning the directory or mandatory effect, and the meaning of, the Vehicle Code 1 section 3067 phrase: “If the board fails to act within 30 days ...
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Opinion The Sierra Club petitioned the superior court for a writ of mandate (Code Civ. Proc., § 1094.5) against a decision of the California *606 Coastal Commission (Commission) approving and certifying a land-use plan (LUP) of real party in interest, the County of Mendocino (County), as consistent with the California Coastal Act of 1976 (Coastal Act or Act) (Pub. Resources C...
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Opinion Petitioner Cedars-Sinai Medical Center (Cedars) seeks a writ of mandate directing the trial court to vacate its order denying Cedars’s request for a protective order. The trial court’s order permitted real parties in interest Hendel Schwartz, Eric Schwartz, and Daniel Schwartz, by and through his guardian, Hendel Schwartz, (collectively, the Schwartzes) to discover in the course of their ...
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12 Cal.App.4th 647 (1993) 16 Cal. Rptr.2d 16 HILDEGARD LEE BORELLI, Plaintiff and Appellant, v. GRACE G. BRUSSEAU, as Executor, etc., Defendant and Respondent. Docket No. A055685. Court of Appeals of California, First District, Division Four. January 19, 1993. *649 COUNSEL Fitzgerald, Abbott & Beardsley, Richard T. White, Virginia Palmer and Maria I. Lawless for Plaintiff and Appellant. Steve...
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Opinion In 1984 William and Kathleen Capogeannis bought land from William and Rita Spence. At the time of the *672 purchase the Capogeannises did not know that there were underground fuel storage tanks on the land, or that the tanks had leaked and had contaminated soil and groundwater with petroleum hydrocarbons, but by early December 1987 the Capogeannises were fully aware o...
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Opinion This case arises from a dispute regarding the property tax assessment of geothermal power plants owned by appellant Freeport-McMoran Resource Partners (Freeport). Appellant contends the county overvalued the property by basing its assessment on capitalization of the income stream of fixed price contracts under which appellant sells electricity to Pacific Gas and Electric Company (...
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Opinion Appellant Robert Findleton, the owner of a parcel of real property in El Dorado County (County), petitioned the trial court for a writ of mandate to order respondent County Board of Supervisors (Board) to issue him a certificate of compliance with the Subdivision Map Act (Gov. Code, § 66410 et seq.; hereafter SMA) so that he could make use of his property. 1 The trial court denied Fin...
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*801 Opinion Appellant was charged with one count each of murder and robbery, in violation of Penal Code sections 1 187, subdivision (a) and 211. Both counts were alleged to be serious felonies. Both counts had a special allegation that appellant was armed with a firearm within the meaning of section 12022, subdivision (a)(1). After a jury trial, appellant was found guilty of first degree m...
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Opinion The State Water Resources Control Board (State Board) and the Regional Water Quality Control Board for the San Francisco Bay Region *700 (Regional Board) appeal from a judgment insofar as it denied their petition for writ of mandate seeking to overturn a determination by the Office of Administrative Law (OAL). 1 The Bay Planning Coalition, which had initiated the matter by seeking t...
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12 Cal.App.4th 812 (1993) 15 Cal. Rptr.2d 861 HECTOR MORFIN et al., Plaintiffs and Appellants, v. THE STATE OF CALIFORNIA, Defendant and Respondent. Docket No. D012220. Court of Appeals of California, Fourth District, Division One. January 22, 1993. *814 COUNSEL Virginia R. Gilson and Gary A. Sernaker for Plaintiffs and Appellants. Daniel E. Lungren, Attorney General, Robert L. Mukai, Chief Assis...
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*690 Opinion Respondent State Compensation Insurance Fund (State Fund) issued a workers’ compensation and employer’s liability insurance policy to appellants Warren W. Wong and George Ewers, individually, and W. Wong, Ewers & Co., a general partnership (collectively Wong). Gregory McClellan filed a suit in superior court seeking damages from Wong for an alleged constructive wrong...
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Opinion A jury convicted appellant, Gregory Cabral, of the following crimes: two counts of penetration by a foreign object (Pen. Code, § 289, subd. (a) 2 , counts l 3 and 3), sodomy (§ 286, subd. (c), count 2), four counts of rape (§ 261, subd. (a)(2), counts 4, 5, 8, and 9) two counts of oral copulation upon a child under the age of 14 (§ 288a, subd. (c), counts 6 and 7), six counts of lew...
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Opinion Defendant was convicted by jury of first degree murder. (Pen. Code, §§ 187, 189.) On appeal, he contends the trial court committed prejudicial instructional error. Among other things, he challenges CALJIC No. 8.25, which informed the jury that murder immediately preceded by lying in wait is first degree murder, and defined the term “lying in wait.” *789 We reject def...
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Opinion TJD, Inc. (defendant), appeals from a judgment entered on a jury verdict awarding respondents (plaintiffs) damages for breach of a lease between the parties. On appeal defendant contends the superior court *832 erred in denying its motion for summary judgment, and that the court failed in its order of denial adequately to state its reasons. We shall conclude that defe...
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Opinion In this case, which appears to be one of first impression, we are called upon to determine whether the State of California’s (State) demand for equitable indemnity against the City of Ontario (City) is barred by the State’s failure to precede its lawsuit by the filing of a claim pursuant to the Government Tort Claims Act. (Gov. Code, § 810 et seq.) 1 The State argues th...
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Opinion Petitioner (defendant) seeks a writ of mandate directing respondent superior court to set aside its order denying defendant’s motion *840 for security, brought pursuant to the vexatious litigant statute. (Code Civ. Proc., § 391 et seq.; further statutory references to sections of an undesignated code are to the Code of Civil Procedure.) While represented by counsel, real party in in...
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Opinion Charged with murder (Pen. Code, § 187; unless otherwise noted, statutory references are to the Penal Code), appellant was convicted by a jury of voluntary manslaughter (§ 192, subd. (a)) while using a firearm (§ 12022.5). He was sentenced to state prison for 10 years. Appellant contends the trial court erred: (1) by giving a statute (Evid. Code, § 1103) ex post facto application, (2) ...
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12 Cal.App.4th 1073 (1993) 15 Cal. Rptr.2d 874 DEREK PAOLI, Plaintiff and Appellant, v. CIVIL SERVICE COMMISSION OF MENDOCINO COUNTY, Defendant; COUNTY OF MENDOCINO, Real Party in Interest and Respondent; MENDOCINO COUNTY EMPLOYEES' ASSOCIATION, Intervener and Appellant. Docket No. A053816. Court of Appeals of California, First District, Division Two. January 26, 1993. *1075 COUNSEL William L. Wi...
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Opinion Appellants in this action, the former owners of a 44-unit apartment complex, appeal from a judgment awarding respondent Delta Costanzo the balance due on 11 promissory notes appellants had issued. Appellants claim respondent was barred from recovering a judgment against them by the antideficiency provisions of Code of Civil Procedure section 580b. 1 We agree and will reverse the decis...
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Opinion In this case, we hold a one-year sentence enhancement under Penal Code section 667.5, subdivision (b), may be imposed for a prior prison term that is the basis of a conviction for petty theft with a prior under Penal Code section 666. A jury convicted Melvin Julio Darwin of petty theft with a prior, and he admitted having served four prior prison terms for petty theft. The court sente...
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Opinion Anthony Holmes appeals his conviction by jury trial of first degree murder (Pen. Code, § 187), second degree robbery (Pen. Code, § 211) and a finding of firearm use. (Pen Code, § 12022.5). He raises instructional and identification error. We affirm. *1097 Facts In resolving this appeal we are required by established rules of appellate procedure to view the evidence in the light mo...
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12 Cal.App.4th 1130 (1993) 15 Cal. Rptr.2d 882 In re KHAMPHOUY S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. KHAMPHOUY S., Defendant and Appellant. Docket No. D016240. Court of Appeals of California, Fourth District, Division One. January 26, 1993. *1132 COUNSEL Elizabeth A. Barranco, under appointment by the Court of Appeal, for Defendant and Appellan...
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Opinion Christopher Donald Self appeals from a judgment of conviction for commission of a lewd or lascivious act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)). We hold the court erred in instructing the jury by defining a lewd or lascivious act as “any touching” with the required intent, since the law requires a sexual act, but the error was harmless beyond a reasonable doubt. ...
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Opinion In this case we hold that in a medical malpractice action claiming injury and damages from psychologist-patient sexual contact, the trial court has discretion to admit evidence of plaintiffs sexual history for the purpose of determining proximate cause, but only to the limited extent the history is relevant and its probative value outweighs its prejudicial effect. I. Backgrou...
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Opinion Following jury trial, appellant was convicted on 14 of the 19 counts alleged against him in the information. Except for the prior felony conviction enhancement allegations charged against him pursuant to Penal Code sections 667, 667.6 and 667.9, 1 which had been bifurcated on appellant’s motion, all of the enhancement allegations charged against him were found by the ju...
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Opinion Kurtz, Richards, Wilson & Co., Inc. (KRW) appeals from a judgment that it take nothing on its cross-complaint against respondents, entered after a demurrer was sustained without leave to amend as to two causes of action and summary judgment was granted as to the remaining cause of action. We reverse the judgment and remand the case to the trial court with directions to sustain the...
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Opinion Here we hold that where a person has been committed as a mentally disordered sex offender (MDSO), the maximum term of commitment under Welfare and Institutions Code 1 section 6316.1 does not run while the person is on outpatient status. We grant the People’s petition for a writ of mandate. Facts Charles Edward Henry was convicted of one count of child molestation (Pen. Code, § 288...
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Opinion In this case we hold that when a retirement plan administrator determines that a marital judgment dividing community interests in the plan is not a qualified domestic relations order (QDRO) as defined by federal law, state and federal courts have concurrent jurisdiction to review that determination. In 1988, the Laborers Pension Trust Fund for Northern California (Fund) was joined as ...
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Opinion Introduction Plaintiff Stanley M. Seidler appeals from an order of dismissal entered after the trial court sustained without leave to amend a demurrer to plaintiffs first amended complaint. *1232 Statement of Facts The facts as alleged in plaintiff’s first amended complaint, which are deemed to be true (Thompson v. County of Alameda (1...
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12 Cal.App.4th 1174 (1993) 16 Cal. Rptr.2d 267 THE PEOPLE, Plaintiff and Respondent, v. WILLIAM ERIK MONROE, Defendant and Appellant. Docket No. A053694. Court of Appeals of California, First District, Division Two. January 27, 1993. *1177 COUNSEL Marvin Kayne, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assi...
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Opinion Peter Sabatino Ognibene appeals his conviction for nine counts of grand theft. He contends his due process rights were violated when the trial court refused an instruction on a time-barred lesser related offense even though he was willing to waive the statute of limitations. We affirm. *1288Ognibene was charged with nine counts of grand theft for taking funds from nine automobile agencies....
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Opinion Kenneth and Sally Wagner petition for a writ of mandamus compelling the Orange County Superior Court to vacate its order denying an extension of a discovery cutoff date set by the court in their products liability case against General Motors Corporation (GM). The case is in the court’s expedited trial program. The Wagners contend the trial court erred in setting a discovery cutoff date ...
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Opinion I. Introduction Raul Fabela and Teddy Lapina appeal from the judgments entered following a jury trial in wMch they were convicted of second degree robbery in wMch Mr. Lapina used a firearm. (Pen. Code, §§ 211, 12022.5,12022, subd. (a)(1).) Mr. Fabela admitted that he had suffered a prior felony conviction for wMch he served a separate prison term. (Pen. Code, § 667.5, subd. (b).) Mr. ...
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Opinion Plaintiff was injured in a traffic accident in which her foster daughter was killed. Defendants contend the trial court erroneously allowed plaintiff to recover damages for the emotional distress she suffered from witnessing the fatal injuries to her foster daughter. Defendants also contend the court erred when it refused to allow them to present evidence on the lack of seat belts in pl...
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Opinion Appellants Joseph Raul Uribe (Uribe) and Jorge Adrian Nunez (Nunez) were each charged with one count of transportation of cocaine (Health & Saf. Code, § 11352) and one count of possession of cocaine for sale (Health & Saf. Code, § 11351). As to both counts it was alleged appellants were personally armed with a firearm within the meaning of Penal Code 2 section 12022, su...
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Opinion Plaintiff Lula Wallace (plaintiff) appeals from a judgment of nonsuit entered in her action against defendants the City of Los Angeles (the City) and Detective Donald Richards (Detective Richards). Detective Richards is a member of the City’s police department. The sole cause of *1388 action alleged against defendants was for the negligent wrongful death of plaintiffs 18-year-old daug...
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Opinion Introduction Appellant and real party in interest, Azusa Land Reclamation Company, Inc. (ALR), appeals from a final judgment denying its motion for a supplemental writ of mandate to direct the State Water Resources Control Board (State Board): (1) to set aside the State Board’s reversal of its own previously granted approval of ALR’s application for revised waste discharg...
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Opinion Shortly after giving birth to her daughter in 1982, appellant, Sheri R. Traxler, received a blood transfusion. By 1988, when Sheri Traxler first learned that she, tragically, had become one of the approximately 600,000 women worldwide who are now afflicted with Acquired Immune *1326 Deficiency Syndrome (AIDS), the human immunodeficiency vims (HIV) had been identified ...
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Opinion I. Introduction Santa Ana’s Bristol Street has been described by the city’s mayor as “the biggest embarrassment” in the county. City council members have termed it *1338 a “disaster,” “troubled,” and in need of “help.” Residents of the city have described it as “unsightly, congested,” and a “mess.” The street was developed as a residential area in the 10 yea...
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12 Cal.App.4th 1407 (1993) 16 Cal. Rptr.2d 305 J. DAVID NICK, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES et al., Defendants and Respondents. Docket No. A054300. Court of Appeals of California, First District, Division One. January 29, 1993. *1410 COUNSEL Hancock, Rothert & Bunshoft, Paul J. Killion and Kathleen E. Justice for Plaintiff and Appellant. Daniel E. Lungren, Attorney ...
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Opinion Appellant Clinton Hale Fisher was convicted by a jury of two counts of violating Penal Code section 422, which makes it a crime to threaten another with death or great bodily injury under certain circumstances, and two counts of violating section 242 (misdemeanor battery). 1 Appellant attacks the constitutionality of section 422 on the ground that the statute is overbro...
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Opinion In this case we are called upon to determine whether the police pursuit policy adopted by the City of Perris Police Department complies with Vehicle Code section 17004.7 1 such that defendant is immune from any liability for the death of plaintiffs’ decedent. The trial court, on defendant’s motion for summary judgment, concluded that the policy in question complied with...
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*1586 Opinion Wendy Davaris (appellant) appeals the dismissal of her wrongful termination action against Vasa Cubaleski (respondent) entered after the trial court sustained a demurrer without leave to amend. 1 We accept as true the allegations of appellant’s complaint. (Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 747 [7 Cal.Rptr.2d 808, 828 P.2d 1195, A.L.R.4th 2575].) Appell...
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Opinion Appellant and plaintiff Jeff L. Preach doing business as Terrace Realty Company (plaintiff), appeals from a judgment entered in favor of respondents and defendants Monter Rainbow, Gray Family Corporation and Dudley Gray, Sr. (Gray) (collectively defendants) after their motion for summary judgment was granted. *1446 In a fifth amended complaint (the complaint), plaint...
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Opinion I. Introduction Respondents’ trial attorney, Peter M. Williams (Williams), was handed a subpoena for his own deposition on December 13, 1989, by appellant, Richard A. DeSantis (DeSantis), attorney for Robert R. Ruchti II (Ruchti). The subpoena was served during Ruchti’s deposition, in which Williams was doing the questioning. The subpoena set the Williams’s deposition fo...
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Opinion This case involves plaintiff Tri-Continent International Corporation’s (Tri-Continent) attempt to buy unimproved land from defendant Paris Savings and Loan Association (Paris), later declared insolvent. Tri-Continent appeals the summary judgment in favor of defendants American Federal Bank, F.S.B. (American Federal) and the Federal Deposit Insurance Corporation (FDIC) as receiver ...
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Opinion The People appeal following the defendants’ successful motion to set aside the information pursuant to Penal Code section 995. 1 The motion was granted on the grounds that multiple hearsay evidence introduced by the People through a police officer’s testimony at the preliminary hearing was inadmissible under section 872, subdivision (b) (enacted as a part of Prop. 115, ...
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Opinion Introduction Respondent Robin L. Moomjian, a Georgia resident, was convicted in Georgia of two driving under the influence of alcohol (DUI) offenses more than five years apart. Georgia treats DUI offenses more than five years apart as first offenses, and first offenders’ licenses remain valid if they complete a basic drinking driver program. Because Moomjian completed such programs, h...
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Opinion Statement of the Case Hardistene Howard filed a petition with the State Bar of California seeking reimbursement of the sum of $1,000 from the Client Security Fund 1 as the sum he paid to Attorney Charles B. Johnson for the purpose of hiring him to process a claim for attorney malpractice. He sought reimbursement on the basis that Mr. Johnson had neither pursued the claim nor refunde...
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Opinion We reverse an order dismissing Plaintiff Lillian Jurado’s slip-and-fall action against Defendant Toys “R” Us, Inc. Facts Jurado sued Toys “R” Us for personal injuries. The matter was initially set for trial on May 6, 1991, but was continued on the court’s own motion to *1617 July 16. On July 12, Jurado successfully moved for a continuance on the ground that ...
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Opinion Statement of the Case On December 2, 1991, respondent Lucio Bemabe Lopez was charged by information filed in Stanislaus County Superior Court with possession of *1734 heroin for sale, a violation of Health and Safety Code section 11351. The information also alleged Lopez served a prior prison term within the meaning of Penal Code 1 section 667.5, subdi...
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*1755 Opinion In this appeal we address the court’s power under Penal Code 1 section 1170, subdivision (d), to recall a prison sentence and impose a new and different sentence. This power may be exercised by the court only within 120 days of the date of original prison commitment. The court has no discretion or power to extend this 120-day period, its jurisdiction to recall the sentence exp...
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*1781 Opinion I. Introduction Appellant, A Local and Regional Monitor (ALARM), is attempting to halt the development of the downtown Los Angeles Metropolis Project (Project), which includes office, hotel, retail and cultural facilities. Neither ALARM, nor any other entity, challenged the environmental impact report (EIR) for the Project during the certification process ...
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Opinion The question on this appeal is whether a recorded abstract of judgment attaches to property previously conveyed by an unrecorded quitclaim deed. It does not. Facts In March 1979, a money judgment later assigned to Dudley Gray was entered against Scott Berglund. In September 1979, Berglund and his partner, Daniel Casey, purchased real property in San Pedro. On February 1,...
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Opinion Introduction As we explain more fully in the course of this opinion, Code of Civil Procedure sections 410.30 and 418.10 (undesignated section references will be to this code) are the means by which a defendant may challenge a plaintiffs selection of California as the forum for the litigation between them. Two substantive bodies of law are affected by this procedural vehicle: ...
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Opinion Defendant and respondent Nick Pappalardo (respondent) was charged by plaintiff and appellant People (appellant) with seven counts of grand theft (Pen. Code, § 487, subd. 1), one count of attempted grand theft (Pen. Code, § 487, subd. 1), three counts of selling unregistered securities (Corp. Code, §§ 25110, 25540), three counts of securities fraud (Corp. Code, § 25541), and three ...
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Opinion The issue raised by this petition for writ of mandate is whether the trial court may refuse to rule on the merits of a summary adjudication motion made pursuant to Code of Civil Procedure section 437c, subdivision (f), when such an adjudication would not dispose of an entire cause of action because two separate and distinct wrongfiil acts are combined in the same cause of action. ...
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Opinion Appellant Hameed A. Khan, M.D., brings this appeal following the denial of his petition for writ of administrative mandamus. (Code Civ. *1838 Proc., § 1094.5.) The superior court ruled in favor of respondent Division of Medical Quality of the Medical Board of California after the court reviewed the findings of a panel comprised of members of the Eleventh District Medi...
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Opinion This case presents the following question. When a primary insurer pays $500,000 of its insured’s $1.1 million settlement of a claim against the insured, and when the insured’s excess insurer pays the remaining $600,000 of the claim, and when the insured recovers indemnification of $500,000 from a third party, which of the two insurers is entitled to be reimbursed with the $500,000...
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*1693 Opinion Plaintiff appeals from the judgment of dismissal on May 21, 1991, pursuant to Code of Civil Procedure section 583.420, subdivision (a)(2)(A), authorizing discretionary dismissal for unreasonable delay in the prosecution of one’s case; and from the order of July 2, 1991, denying reconsideration and relief under section 473 of the Code of Civil Procedure. We affirm. ...
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Opinion After respondent superior court dismissed all but one count of the criminal information filed in this case, the People petitioned this court to issue a writ of mandate and requested that the trial of real party in interest Miguel Angel Quinteros (defendant) be stayed until this court determined the merits of the petition. We have stayed the trial proceedings and issued an alternat...
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*1715 Opinion California Rules of Court, rule 980 1 absolutely prohibits photography or electronic media coverage of courtroom proceedings unless authorized by written order. In this case we are asked to decide whether the confiscation by the court of photographic negatives of a criminal defendant, taken by a journalist in the courtroom in violation of rule 980, runs a...
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Opinion Christward Ministry (Christward), a nonprofit corporation owning 640 acres of land located to the east of the San Marcos Landfill (Landfill), appeals a judgment entered upon Christward’s petition for a writ of mandate challenging the adequacy of an environmental impact report (EIR) prepared by the County of San Diego (County) in connection with a planned vertical and horizontal expansio...
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Opinion Plaintiffs and appellants Gregory Galvis (Galvis), Angelica Lopez (Lopez), and Maria Torres (Torres) (collectively, plaintiffs) appeal from a judgment in favor of defendant and respondent Orlando Petito (Petito) based on the grant of the latter’s motion for summary judgment. Because we conclude Petito is liable to plaintiffs under Vehicle Code section 17150 1 as th...
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*6 Opinion Frederick A. Augusta appeals after the trial court granted a summary judgment based on the one-year statute of limitations of Code of Civil Procedure 1 section 340, subdivision (3), in Augusta’s spoliation of evidence action against County Auto Pool North (County Auto) and United Service Automobile Association (USAA). 2 Augusta’s action was filed against County Auto and USAA so...
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Opinion Shannon Hopson appeals a judgment on his two convictions of taking or driving a vehicle (Veh. Code, § 10851). In CR94974 in March 1988 Hopson was found in a stolen Datsun. In CR97210 on July 17, 1988, he was driving a stolen Toyota with a switched vehicle identification number. Hopson entered negotiated guilty pleas in both cases conditioned on being “sentenced to no more than the mid...
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Opinion In this opinion we consider whether a defendant may inspect his probation file. On May 4, 1992, petitioner through counsel requested from the probation department a copy of his own probation file under the provisions of the Public Records Act. (Gov. Code, § 6250 et seq.) On May 26, 1992, the department through its counsel, the city attorney, refused the request contending that the rec...
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*105 Opinion The County of Los Angeles (County) seeks reversal of a judgment which denied its petition for writ of mandate against the County’s assessment appeals board (Board) and awarded possessory interest tax refunds to car rental companies that operate at the three major airports within the County. The Board and the trial court rejected the County’s contention that the rent-...
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Opinion Pursuant to a plea agreement with the People, defendant pled guilty to a charge of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) 1 and admitted the truth of the allegation of firearm use. (§ 12022.5, subd. (a), § 1192.7, subd. (c)(8).) The court sentenced defendant to a four-year aggravated term for the assault with a firearm, and a consecutive five-year enhancement for the ...
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Opinion A provision in an agreement allows for the recovery of attorney fees to the prevailing party in any action or proceeding arising out of the agreement. Here we hold that such a provision permits attorney fees to the prevailing party in a tort cause of action under Code of Civil Procedure section 1021. George and Jane Ward (the Wards) appeal from the trial court’s denial of the...
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Opinion This is an appeal from the trial court’s judgment directing the Stanislaus County Board of Supervisors (Board) to place on the 1992 general election ballot a slow-growth ordinance known as Measure F. Respondents on appeal, Save Stanislaus Area Farm Economy and certain named individuals (SAFE), filed a petition for writ of mandate in the trial court. The Board was respondent in that proc...
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*118 Opinion Thang Van Nguyen appeals his conviction on multiple counts of robbery, burglary, assault with a deadly weapon, shooting at an occupied building, and false imprisonment, with numerous enhancements. He contends: (1) the abstract of judgment must be corrected to accurately reflect his convictions were for second degree robbery on two counts; (2) his conviction for discharging a weap...
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Opinion Defendant Pedro Maestas Martinez was charged in an information in count I with kidnapping for robbery (Pen. Code, § 209, subd. (b)) 1 ; *25 in count II with robbery (§ 211); in counts III through VI with rape (§261, subd. (2)); in counts VII through X with sodomy (§ 286, subd. (c)); in count XI with oral copulation (§ 288a, subd. (c)); and in count XII with dissuading a witness from...
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Opinion Stephen Kruger appeals from the judgments entered on May 11, 1992, after the trial court denied his petitions for a writ of administrative mandate directing the Department of Motor Vehicles to set aside the suspension of his driver’s license (case No. NS001214) and a writ of mandate commanding the Department of Motor Vehicles to remove a notation from his driving record (case No. ...
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Opinion A jury convicted defendant and appellant Mark Allen Eastman of transportation of a controlled substance—in this case, methamphetamine. (Health & Saf. Code, § 11379, subd. (a).) 1 The jury returned a verdict of not guilty on a charge of possessing the methamphetamine for sale. (§ 11378.) Appellant was placed on probation and ordered to serve 210 days in the county jail, ...
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Opinion In 1989 our Legislature enacted an urgency measure empowering the California Department of Transportation (Caltrans) to contract with private developers to construct and operate tollway facilities under lease agreements with the state. (Assem. Bill No. 680 (1989-1990 Reg. Sess.), enacted as Stats. 1989, ch. 107, pp. 1017-1019, eff. July 10, 1989.) 1 This legislation aro...
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Opinion Four school districts in the Sacramento area, joined by the Sacramento County Superintendent of Schools (hereafter referred to collectively as School Districts), appeal an order dismissing their first amended petition for writ of mandate and complaint for a validating proceeding against the Sacramento Housing and Redevelopment Agency (hereafter the Agency), the City of Sacramento (herea...
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*620 Opinion The Talent Agencies Act (Lab. Code, §§ 1700-1700.47) 1 requires persons who procure employment for artists in entertainment fields, such as motion pictures, television and radio, to be licensed as talent agents by the labor commissioner. The Act exempts from licensing those persons who procure only recording contracts. Plaintiffs, who are not licensed tale...
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Opinion Pursuant to a plea bargain with the district attorney, approved by the trial court (Pen. Code, 1 § 1192.5), appellant pleaded guilty to second degree murder (§ 187) and admitted a gun-use allegation (§ 12022.5). The plea bargain specified a 15-year-to-life sentence, the admitted gun-use allegation to be stayed by the trial court. In accordance with *713 the plea bargain, on January ...
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Opinion I. Introduction Plaintiffs, Robert and Mitzie Jean Daniels, appeal from a summary judgment entered against them in favor of defendant Salvatore DeSimone on an attorney malpractice action. We affirm. II. Procedural History Plaintiffs filed the original complaint on March 3, 1990, and named as defendants Dale D. Billips, the Law Offices of Dale D. Billips, and Patrici...
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Opinion In this case, we conclude the felony of indecent exposure is a crime of moral turpitude, and a prior conviction for this crime is admissible “without limitation” for purposes of impeachment. (Cal. Const., art. I, § 28, subd. (f).) Appellant was found guilty of two counts of indecently exposing himself, for masturbating near women in movie theaters, and two counts of lewd cond...
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Opinion On this appeal we determine that at the time of the initial sentencing the trial court was without authority to order the previously unconditionally court-approved guilty plea withdrawn and the reinstatement of the original charges. Under the particular facts of this case, the remedy for the trial court’s error is to reverse the judgment entered after a subsequent jury trial, to reinsta...
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Opinion Golden Eagle Insurance Company (Golden Eagle) appeals from final judgments entered in favor of respondent Grade-Way Construction Company (Grade-Way) in two consolidated actions that Grade-Way brought against Golden Eagle as surety on certain mechanic’s lien release bonds and stop notice release bonds (the Release Bonds). Golden Eagle contends that, because the Release Bonds were n...
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*521 Opinion We affirm a summary judgment granted against plaintiff Willie J. Davis in his personal injury action against his former employer, defendant Lockheed Corporation. Facts Davis was employed by Lockheed from 1952 to 1985 in a variety of jobs, all of which exposed him to various chemicals, including asbestos. In 1981, Davis began to lose his voice and he consulted his personal phy...
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Opinion The California Department of Education (Department) is administered through a State Board of Education (Board), appointed by the Governor and confirmed by the Senate, and an elected Superintendent of Public Instruction (Superintendent). (Cal. Const., art. IX, § 2; Ed. Code, §§ 33000, 33301, 33303.) 1 The Board is “the governing and policy determining body of the departm...
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Opinion The County of Orange (County) appeals the judgment denying its petition for writ of mandamus seeking to set aside a decision of the *527 Orange County Assessment Appeals Board No. 1 (Board), which adopted the position of taxpayer American Television and Communications Corporation (American) concerning the property tax on American’s cable television system. The County ...
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Opinion Virginia D. (appellant), the mother of minors Scott M. and Dawn M., appeals from juvenile court orders terminating her parental rights (Welf. & Inst. Code, § 366.26; further section references are to the Welfare and Institutions Code). In the published portion of this opinion, we reject appellant’s contention that the juvenile court erred when it prevented her “from examining the suitabil...
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Opinion Introduction Appellant Aaron Cole was a passenger in an automobile driven by Troy Franks, son of Charles and Barbara Franks, Royal Insurance Company’s (Royal) insured. Royal interpled the $100,000 limits of the Franks liability policy because of the extent of injuries suffered by Cole and others. Cole filed a cross-complaint for declaratory relief against Royal seeking damages under t...
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Opinion The California Coastal Commission (Commission) appeals a judgment issuing a peremptory writ of mandate (Code Civ. Proc., § 1085) commanding the San Diego Unified Port District (Port District) to issue the *863 coastal development permit previously approved by its Board of Port Commissioners to the Coronado Yacht Club (Club), and issuing a peremptory writ of administra...
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Opinion In this appeal we are asked to decide whether a trial court may authorize an arbitrator in a court-ordered arbitration pursuant to Civil *920 Code section 2860, governing matters involving Cumis counsel, to decide issues concerning the scope of coverage provided by insurance policies, the existence of a conflict of interest and the insurers’ respective duti...
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Opinion Anmaco, Inc., a California corporation, and Mark J. Pearl-man appeal from a judgment dismissing their action against William T. Bohlken and from a subsequent award of attorney fees. We affirm the judgment and order. Procedural and Factual Background Pearlman and Bohlken are the sole directors of Anmaco and each owns 50 percent of that corporation’s shares. On November 23...
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Opinion Respondent Philip Rudolfo Alonzo was charged with having willftilly and unlawfully discharged a firearm in a grossly negligent manner which could result in injury or death to a person in violation of Penal Code section 246.3 after he shot a gun into the air in a commercial area of the City of Montebello at 2 a.m. on December 9, 1990. After a brief preliminary hearing, the magistrate d...
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Opinion Statement of the Case On September 3, 1982, appellant Greene, having had a metal hipbone prosthesis surgically implanted, suffered its failure. Defects in design and *914 manufacture were allegedly the cause of the failure. Howmedica, Inc., was the alleged designer, manufacturer, distributor, and seller of the prosthesis. The customary allegations of pain, suffering, expenses and lo...
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Opinion A Welfare and Institutions Code section 602 petition was filed alleging the minor, Sergio M., possessed for sale and offered for sale marijuana. (Health & Saf. Code, §§ 11359, 11360, subd. (a).) At the start of the jurisdictional hearing, the prosecutor asserted the privilege of confidentiality for the location of surveillance. (Evid. Code, §§ 1040-1042.) Officer *811 ...
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Opinion Appellant Interface Technology, Inc. appeals from a judgment after a jury trial by which respondent Myers Building Industries, Limited was awarded $1.1 million in punitive damages and $350,000 in attorney fees on Myers’s cross-complaint against Interface. Those awards were made in connection with a special jury verdict which found that Interface had breached its contract with Myer...
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*1052 Opinion In the published portion of this opinion we hold that a condition of probation was unreasonably overbroad and invalid. The condition required the appellant, convicted of shoplifting beer from a supermarket, to wear an outer garment bearing a bold, printed statement of his status as a felony theft probationer. The requirement applied whenever the probationer was outs...
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Opinion Defendant, AT&T Information Systems, appeals from a judgment in favor of Oksana Bihun, a former employee, in her suit for damages arising from sexual harassment by one of defendant’s senior officials. We affirm. *985 Facts and Proceedings Below Ms. Bihun worked for defendant or one of its predecessors from 1977 to 1985. Ms. Bihun became an area personnel manager...
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Opinion Defendant Gordon Peacock, M.D., appeals from an order denying his petition to compel arbitration of a claim brought by plaintiff Robert Pietrelli, a minor, for medical malpractice. The issue here is whether plaintiff was bound by an arbitration agreement which was signed by his mother at a time when plaintiff was both unborn and unconceived. We conclude that plaintiff was so bound and r...
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Opinion Julius J. Pearl appeals a summary judgment in favor of General Motors Acceptance Corporation (GMAC) dismissing his claim against GMAC seeking declaratory relief regarding a pledge of stock he *1026 made to GMAC. Specifically, he asked the court to confirm that his purported termination of the pledge agreement was effective to preclude his responsibility for future loa...
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Opinion Plaintiffs Maria Torres and Maria Lara filed this action challenging the validity of a proposed amended redevelopment project. Defendants City of Yorba Linda and the Yorba Linda Redevelopment Agency demurred on the ground plaintiffs lacked standing to maintain the lawsuit. The lower court sustained the demurrer without leave to amend and dismissed the action. We affirm. 1 ...
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Opinion Plaintiff, a member of the Church of Scientology, appeals from an order denying a preliminary injunction against defendants to “cease refusing membership in the Cult Awareness Network, and the Cult Awareness Network, Los Angeles Chapter [CAN-LA], to plaintiff and members of the Scientology religion or minority religious organizations,” on the ground that such exclusion violated the Unru...
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*797 Opinion Plaintiff Emil G. Shubat, the Sutter County Assessor (Assessor), appeals from the judgment of the trial court denying his petition for writ of administrative mandamus. The Assessor challenges the determination by defendant Sutter County Assessment Appeals Board No. 1 (Board) of the taxable value of real party in interest Nor Cal Cablevision, Inc. (Nor Cal). The Board...
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Opinion In this case we issued an order to show cause for the purpose of considering whether a California insolvency court properly assumed personal jurisdiction over an out-of-state partnership and its general partner. These entities had solicited and negotiated a substantial investment from a California insurance company. In return they made the California insurer the sole limited partner in ...
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*1073Opinion Outdoor Media Group (OMG) appeals from a judgment following the grant of a motion for summary judgment in favor of the People of the State of California, acting by and through the Department of Transportation (Caltrans) on Caltrans’s complaint for a permanent injunction. OMG also appeals from the dismissal of its cross-complaint. Facts In May 1988, OMG applied to Caltrans for permits...
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Opinion By these consolidated appeals, appellant Sheila Donahue Miller seeks to reverse a judgment of dismissal of her petition for writ of mandate. She also seeks review of the denial of her request for a preliminary injunction to enjoin construction of a beachfront hotel following issuance of a building permit by respondent City of Hermosa Beach (the City). The hotel project was underta...
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Opinion Plaintiff Gloria Dolan appeals from the summary judgment dismissing her medical malpractice case against defendant Lawrence Borelli, M.D., on limitations grounds. We affirm the judgment. Facts Dolan, a 3-M Company factory worker, injured her right wrist at work in June 1984. Dolan’s symptoms, pain radiating to her right shoulder and numbness, tingling, and sharp stabbing...
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*1184 Opinion I. Introduction Vincent Leroy Smith (defendant) was found guilty, following a jury trial, of robbery (Pen. Code, § 211) 1 and kidnapping (§207), a lesser offense necessarily included in the charged offense of kidnapping for robbery. The jury also found to be true the sentence enhancement allegations that (1) defendant personally used a deadly and dangerous weapon, to wit, ...
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Opinion I. Introduction Bruce Shpiller (cross-complainant) purports to appeal from an order and “notice of ruling” announcing the dismissal, pursuant to Code of Civil Procedure sections 583.410 and 583.420, 1 of both his cross-complaint against Harry C’s of Redlands (cross-defendant) and cross-defendant’s complaint against him. A “notice of ruling” is not an appealable judgment or order a...
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Opinion Deane Gardenhome Association (the Association) filed suit against Haluk and Mary Denktas for injunctive relief and damages after the Denktases allegedly painted their house in violation of the Association’s *1396 restrictive covenants (CC&R’s) encumbering the Denktases’ property. The CC&R’s contained an attorney fees provision. The trial court entered judgment in favo...
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Opinion Touche Ross & Co. (Touche) appeals from an order granting the motion of plaintiff and cross-appellant Industrial Indemnity Co. (Industrial) for a new trial on the issue of damages. It contends that the trial court abused its discretion in granting the motion. Applying the Supreme Court’s recent *1089 decision in Bily v. Arthur Young & Co. (1992) ...
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Opinion In this action for attorney malpractice plaintiff Joyce Hensley appeals from a summary judgment in favor of defendant William Caietti predicated upon the bar of the statute of limitations, Code of Civil Procedure section 340.6. The gist of her claim is that defendant *1168 William Caietti committed malpractice by inducing her to enter into a binding unfavorable marital settlement agre...
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Opinion The question before us is whether a plaintiff in pursuit of an award of punitive damages can satisfy her obligation to present evidence of the defendant’s financial condition without some proof of his net *1063 worth or something akin to “net worth.” We hold that where, as here, the evidence is limited to proof of the defendant’s annual income, there is insufficient evidence to suppor...
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Opinion Charles Philip Lathrop appeals the trial court’s denial of presentence credits in imposing a 16-month prison sentence for his drunk driving conviction. We affirm the judgment of conviction, but remand to allow a proper award of credits. On May 17, 1991, Lathrop was arrested in Riverside County on an assault charge and bail was set at $20,000. The same day, Orange County placed a *140...
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*1475 Opinion In this writ proceeding, we consider whether a cause of action is stated for wrongful termination in violation of public policy when the employer’s conduct is not specifically prohibited by a statutory or constitutional provision. We conclude that such a provision is a foundational requirement to establish wrongful termination on public policy grounds. Accordingly, we hold that ...
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Opinion This is a defendants’ appeal from a judgment after a court trial in an action for breach of contract to pay a real estate broker’s *1593 commission and for damages for interference with contract relations and conspiracy to interfere with contract relations. Defendant John L. Sullivan entered into a written agreement to pay a commission if he purchased property presented to him by R. J...
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Opinion The plaintiff in this matter, Pacific States Enterprises, Inc. (Pacific), appeals from the dismissal of its first amended complaint as against two defendants pursuant to section 581, subdivision (f)(1) and (2) of the Code of Civil Procedure after their demurrers to the first amended complaint were sustained. 1 On appeal, Pacific contends that: (1) With regard to the def...
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Opinion The sole issue in this appeal is whether the trial court properly imposed a five-year sentence enhancement under Penal Code section 667, subdivision (a). (All further statutory references are to the Penal Code unless otherwise noted.) Gregory Byron Bow argues that his current offenses are not serious felonies within the meaning of section 667, subdivision (a) and therefore do not ...
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Opinion The matter before us consists of a separate appeal by each of four criminal defendants who were tried together. By name, the four defendants are David James Farrow (David), Douglas Gregory Farrow (Douglas), David Wayne Jackson (Jackson) and Keith Benjamin Fletcher (Fletcher).1 In general terms, all four defendants were charged by a three-count information that set forth allegations of fir...
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Opinion In this case, we apply Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d, 834 P.2d 696] and conclude that the trial court erred in granting summary judgment against appellant on the now rejected doctrine of implied reasonable assumption of the risk. Factual and Procedural Summary Since this case reaches us after a full grant of summary judgment ...
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Opinion Charles Lee Graham (plaintiff) appeals after the trial court, sitting as fact finder, concluded that the machine which caused injury to plaintiff was not a “power press” within the meaning of Labor Code section 4558. 1 That section creates an exception to the exclusive remedy provision of the workers’ compensation system. (§ 3602; Bingham v. CTS Corp. ...
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Opinion Petitioners seek a peremptory writ of mandate to compel respondent court to reconsider its ruling denying real party in interest’s, Pacific Club Homeowners Association (PCHOA), motion for a determination a settlement was made in good faith. The trial court denied the motion out of concern over the binding effects of any such finding on nonparty, nonparticipating insurers based on ...
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Opinion Petitioner Hector Miranda is awaiting trial on charges of unlawful possession of controlled substances while armed with a loaded firearm (Health and Saf. Code, § 11370.1), ex-felon in possession of a firearm (Pen. Code, § 12021, subd. (a)), and possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)). The evidence which is expected to support these charges was...
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Opinion This action for personal injuries arose out of an automobile accident. Grace Ramirez (plaintiff) was a passenger in a car driven by her sister, defendant Gloria Pastran, when it was struck by an automobile driven by defendant Cathryn MacAdam. Plaintiff appeals from a judgment in her favor after a jury verdict in the amount of $3,000. Plaintiff raises numerous contentions on appeal relat...
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Opinion Carpenters Health and Welfare Trust Fund for California, and other multiemployer trust funds (the Trust Funds), filed a complaint against David Barry, Community Construction, and Surety Company of the Pacific (Surety). The complaint alleged, as relevant here, that Barry, doing business as Community Construction, had failed to deposit certain fringe benefits into the Trust Funds as...
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Opinion In this case, we conclude Eugene Gailord and Charles Lamale Allen are entitled to reversal of their enhancement findings based on *1645 Allen being armed with and using a “firearm” (Pen. Code, 2 §§ 12022, subd. (a)(1), 12022.5, subd. (a)) as defined under section 12001, subdivision (b), during the commission of a commercial burglary (§ 459) and three robberies (§ 211). At the time G...
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Opinion Defendant appeals his conviction by plea of guilty to one count of robbery with a firearm use enhancement also admitted. On *1656 appeal defendant contends that the court erred in refusing to grant his motion for a continuance which he brought on the eve of trial immediately after the court granted his motion to proceed in propria persona (pro. per.) thereby denying his right to effec...
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Opinion Petitioner Wilbert Cadell Bright (Bright) seeks writ review of an order of the trial court denying Bright pretrial bail in a pending prosecution for murder with special circumstances, specifically, murder committed during the commission of a robbery. (Pen. Code, §§ 187, 190.2, subd. (a)(17)(i).) 1 Although the People do not seek the death penalty, the *1666 ...
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*1685 Opinion Appellant Mission Community Hospital appeals from a judgment denying appellant’s petition for writ of administrative mandamus seeking to compel respondent State of California, Department of Health Services to accept appellant’s amended 1985 Medi-Cal cost report. Appellant contends respondent had a mandatory duty to accept the amended cost report. Alternatively, appe...
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Opinion I Introduction In the published portion of this opinion, we are asked to determine whether California’s “hate crime” statute 1 violates the First Amendment. Similar statutes in Wisconsin and Ohio were declared unconstitutional by *1739 their respective supreme courts. 2 As we shall explain, we disagree with those decisions. Hate crime s...
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Opinion Here we hold that the trial court abused its discretion in denying attorney fees to real parties in interest for defense of a writ of mandate brought pursuant to Elections Code section 5025. We reverse the trial court’s order. Jeffrey Young and Joanne Miller appeal from denial of their motion for attorney fees under Code of Civil Procedure section 1021.5.1 In the spring of 1991 a fierce el...
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*1773 Opinion Mark Fitzpatrick appeals from the denial of his petition to set aside an order by the Department of Motor Vehicles (DMV) suspending his driving privilege for one year for failure to submit to or complete a chemical test of his breath, urine or blood to determine his blood-alcohol level. (Veh. Code, §§ 23157, 13353.) We find Fitzgerald was improperly denied the opportunity to con...
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Opinion On October 7, 1992, a petition was filed alleging the minor, Brianna, was at risk of physical and sexual abuse due to her mother’s substance abuse (Welf. & Inst, § 300, subds. (b) and (d)). The child was placed in a confidential foster home. At the detention hearing on December 10, 1992, the minor’s biological father, Brian C., with the concurrence of the department of social serv...
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Opinion Robert Gangemi was convicted of filing false deeds of trust in connection with an elaborate scheme to unlawfully shield a friend’s personal assets from collection by judgment creditors. (Pen. Code, §§ 115, 115.5.) 1 He contends on appeal that the two $75,000 fines imposed under section 115.5 were improper, and, alternatively, imposition of more than one fine violated th...
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Opinion Florence H., the natural mother of Ronald V., appeals from an order denying her request for a modification because of *1805changed circumstances (Welf. & Inst. Code, § 3 88)1 of an order terminating her parental rights which issued at the conclusion of a permanency planning hearing (§ 366.26). The issue before us is a very simple one. May a parent whose rights have been terminated subsequ...
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Opinion This matter arises on the petition of the Public Employment Relations Board (Board) for a writ of mandate directing the respondent superior court to enforce administrative subpoenas served upon the Department of Personnel Administration (DPA). The subpoenas were issued in a proceeding to determine whether, in failing to meet and confer with state employee organizations prior to pr...
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Opinion Juan Lopez (Lopez) appeals following his conviction by jury of arson of an inhabited structure in violation of Penal Code section 451, subdivision (b). On this appeal Lopez asserts the trial judge committed prejudicial error in (1) excusing a juror for cause, (2) failing to instruct the jury properly on the appropriate mental state required for conviction, and (3) failing to instruct th...
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Opinion An attorney who is not of record files a motion on behalf of a party in an action. Does the trial court have jurisdiction to impose sanctions against such an attorney? Yes, because he represents a party even though he is not attorney of record. *68 Attorney Henry W. Bockman appeals an order imposing $500 sanctions against trim under Code of Civil Procedure section 128.5. 1 Here, t...
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Opinion The novel issue presented by this appeal is whether a Tameny 1 cause of action for breach of a contract in violation of public policy exists outside the employment situation. We conclude it does not. Statement of the Case Appellant David B. Harris appeals from the judgment entered on his lawsuit against Atlantic Richfield Company (ARCO) and ARCO’s cross-compla...
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Opinion Plaintiff dismissed his personal injury action with prejudice and signed a release of all claims. This release applied to the defendants who were the driver and the owner of the other vehicle, and to any other person or entity responsible for the accident. The trial court held that the dismissal and release barred subsequent litigation against the defendant driver’s employer. The trial ...
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Opinion Appellant Elizabeth Schmidt appeals from a judgment entered against her following the grant of a motion by respondent Southern California Rapid Transit District for judgment on the pleadings. In a twist from the usual circumstance, this case involves a situation in which appellant complied with the filing deadlines requisite in making a claim against respondent, but did not f...
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*1580 Opinion In these companion cases, consolidated for appeal, the Corona-Norco Unified School District (District) sought writs of mandate to compel the City of Corona and its city council (collectively, City) to rescind approvals of tentative tract maps for two residential development projects. The District contended the tentative tract maps were inconsistent with the City’s g...
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Opinion This appeal raises the question, to what extent may private oil company pipelines which run through more than one county be centrally assessed by the State Board of Equalization. For the reasons stated below, we affirm the trial court’s judgment, as modified, and hold that lands and rights-of-way through which such pipelines run must be locally assessed and taxed and that only the...
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Opinion This appeal is from a judgment denying appellant Henry Jefferson’s petition for peremptory writ of mandate in which he sought reinstatement to his position as a principal in Compton Unified School District, respondent (District). The District reassigned appellant from principal to classroom teacher. At the time of the events leading to this action, appellant had been employed by the D...
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*18 Opinion We affirm the summary judgment granted in favor of defendants. Background James Farenbaugh went to Hollywood Park on June 14, 1989, and put down $4,860 on a “Pick-9” ticket. A Pick-9 requires the bettor to pick the winners of the nine races run that day. Picking all nine winners results in a large return. But Farenbaugh had something else in mind. He ca...
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Opinion Plaintiff Michael Schwoerer (plaintiff) appeals from a judgment of dismissal entered after the trial court granted summary judgment in favor of defendants Union Oil Company of California (Union), Ashland Chemical, Inc. (Ashland), E. R. Vine & Co. (Vine), and Ebbetts Pass Gas Service (Ebbetts). 1 Plaintiff’s action is based on injuries allegedly caused by inhalation of a...
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Opinion Appellant Mark Anthony Groomes pleaded nolo contendere to one count of lewd and lascivious conduct upon a child under the age of 14 years, a violation of Penal Code 1 section 288, subdivision (a). He also admitted an enhancement allegation that he had substantial sexual conduct with the victim, who was under the age of 11 years within the meaning of section 1203.066, su...
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*117 Opinion The Civil Service Commission (the Commission) appeals after the court issued a writ of administrative mandate (Code Civ. Proc., 1 § 1094.5) compelling it to hear Rebecca Velez’s appeal following her termination as a protected employee of the air pollution control district. Velez filed her notice of appeal five days after the ten-day period prescribed in San Diego County Civil S...
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Opinion Appellant Donald Alan Box raises the narrow issue of whether the trial court erred in failing to permit an evidentiary hearing in accordance with Franks v. Delaware (1978) 438 U.S. 154 [57 L.Ed.2d 667, 98 S.Ct. 2674], We conclude appellant failed to make a substantial showing of deliberate or reckless falsification by law enforcement in the search warrant aff...
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Opinion Ad Way Signs, Inc. (hereafter, Ad Way) 1 erected a billboard next to Highway 101 in Santa Clara County as specified in its permit, moved the billboard without a new permit, and returned it to the *191 original location when the California Department of Transportation (hereafter, Caltrans) either cancelled or threatened to cancel the original permit. Several...
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*167 Opinion Appellants/defendants Operation Rescue of Southern California (ORSC) and Greg Aakhus, Anna and Riccardo Lemos, and Garvan Kuskey (Aakhus) challenge the trial court’s order awarding respondent/plaintiff Planned Parenthood of Santa Barbara, Ventura and San Luis Obispo Counties, Inc., attorney fees in the amount of $36,365 pursuant to Code of Civil Procedure section 1021.5. We affir...
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Opinion Myron Bishop entered a changed plea of guilty to one count of cocaine possession (Health & Saf. Code, § 11350, subd. (a)), with other *206 charges dismissed in a negotiated disposition, after the superior court denied his renewed motion to suppress evidence. Granted felony probation with a nine-month jail term condition, he appeals challenging the suppression ruling. ...
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Alameda County Waste Reduction and Recycling Act of 1990 (Measure D) imposes a $6 “surcharge” per ton of solid waste deposited in landfills located in Alameda County. The majority conclude that the surcharge is a valid regulatory fee. I believe the trial court properly found this surcharge to be a special tax imposed in violation of article XIII A, section 4 of the California Constitution. A munic...
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Opinion The trial court granted defendant’s motion for summary judgment, finding that based upon the undisputed facts, the doctrine of respondeat superior did not apply when an employee of defendant was involved in an automobile accident while on his way home from work. Plaintiff contends the fact the employee was receiving payment for his travel expenses meant the employee was acting wit...
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Opinion These appeals present numerous challenges to the constitutionality of the parade permit ordinance of the City of Long Beach (City), Long Beach Municipal Code Chapter 5.60 (hereafter cited by section and referred to as Chapter 5.60.) 1 . The City, defendant below, appeals from the superior court’s judgment insofar as it holds that section 5.60.030(C) of the ordinance imparts unconstitu...
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Opinion In this case the liability insurance policies obtained by the plaintiffs provided coverage for “accidents.” Alleged misrepresentations made by the plaintiffs for the purpose of inducing participation in a *364 business venture are not “accidents” within the meaning of those policies. Accordingly the defendant insurer did not owe the plaintiffs any duty to defend them ...
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Opinion This appeal is from an order dissolving a preliminary injunction and denying permanent injunctive relief in a dispute between two school districts concerning the division of property incident to a reorganization. Natomas Union School District (Natomas) seeks to bar the sale of real property by the Grant Joint Union High School District (Grant) pending an arbitration of the dispute. Nato...
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Opinion This petition is on behalf of a juvenile ward of the court. It seeks a ruling from this court reversing the denial by the superior court judge of a peremptory challenge filed on behalf of the minor. The challenge was filed in connection with a juvenile court hearing of a supplemental petition brought under Welfare and Institutions Code 1 section 777, which alleged that ...
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Opinion The minor George M. contends the juvenile court considered an improper factor when deciding to commit him to the California Youth Authority. He also contends the court improperly applied two enhancement statutes. George M.’s point with respect to one of the enhancement statutes is well taken. We therefore modify the judgment to reduce the maximum term of commitment by three years and,...
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14 Cal.App.4th 383 (1993) 17 Cal. Rptr.2d 688 THE PEOPLE, Plaintiff and Respondent, v. JOHN CALVIN BABCOCK, Defendant and Appellant. Docket No. A054926. Court of Appeals of California, First District, Division Two. March 22, 1993. *384 COUNSEL Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Willaimson, Chief Assist...
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Opinion Plaintiffs/appellants Tensor Group, 116 W. Maple Avenue, and 1815 Orchard Avenue (collectively as Tensor) appeal from the judgment of dismissal entered upon the sustaining of the demurrer, without leave to amend, of defendant/respondent City of Glendale (the City). Tensor’s complaint against the City had sought damages for injuries allegedly caused by the City’s alleged inverse condemna...
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Opinion This is an eminent domain action. The condemnor is the State of California, ex relatione the California Department of Transportation (hereinafter, the State), and the condemnee is Diversified Properties Company III (hereinafter, DPC), a limited partnership which is the owner/ prospective developer of the commercially zoned realty which was condemned by the State in this action (he...
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Opinion The minor, Asean D., admitted two allegations of robbery (Pen. Code, § 211) and one allegation of the unlawful taking or driving of a vehicle (Veh. Code, § 10851). On this appeal, he argues that the trial court violated Penal Code section 654 by employing consecutive terms for the second robbery and the vehicle taking in computing the maximum term of confinement pursuant to Welfar...
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Opinion The California Department of Corrections and the director of the department, James Rowland (hereinafter collectively the Department), appeal a trial court injunction that limits the Department’s ability to conduct *516random searches of prison visitors’ vehicles on prison property. The Department asserts the injunctive conditions effectively prevent it from conducting the vehicle searches,...
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*545 Opinion On appeal from an adverse judgment entered after a trial de novo, defendant Zachary Brandstetter contends the trial court erred in denying his motion to enter judgment on a judicial arbitration award. We disagree. Accordingly, we shall affirm. Background Plaintiffs William G. and Vivian D. Marracino sued defendant for breach of contract, fraud and other causes of action arisi...
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Opinion Petitioner Enriqueta Silva, M.D., seeks a writ of mandate directing respondent superior court to set aside its order denying her petition for writ of administrative mandamus. The real party in interest, the Medicial Board of California (Board), obtained an administrative interim order suspending Silva’s medical license, pursuant to Government Code section 11529. 1 Although Silva ass...
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Opinion This is the second case to reach us as a result of the insolvency of Executive Life Insurance Company (ELIC). In the first, Texas Commerce Bank v. Garamendi (1992) 11 Cal.App.4th 460 [14 Cal.Rptr.2d 854], we held that municipal bond guarantee contracts (Muni-GIC’s) issued by ELIC in 1986 were annuities and hence “life insurance” within the meaning of Insuranc...
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*140 Opinion Introduction Plaintiffs Raymond Fielder and others appeal from a summary judgment entered in favor of defendant City of Los Angeles. Factual Background On May 31, 1991, defendant’s city council enacted ordinance No. 166976. The ordinance imposes upon each deed or instrument in writing that transfers or conveys real property to a purchaser a tax of $2.2...
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*633 Opinion Under Code of Civil Procedure 1 former section 377 may adult children maintain an action for the wrongful death of their parent if the parent’s entire estate is community property bequeathed to the other parent, the surviving spouse? Our answer is yes. Accordingly we reverse the summary judgment awarded respondents. We also modify the trial court’s order a...
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*593 Opinion Jim Delaney appeals from the summary judgment entered against him in his action alleging employment discrimination by defendant Superior Fast Freight (Superior) based upon sexual orientation. (No. B063458.) Superior appeals from the trial court’s denial of its request for attorney fees. (No. B066035.) In a telephone call to a company official, Delaney threatened...
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Opinion In this declaratory relief action defendant Foster appeals from a summary judgment in favor of plaintiff insurer, urging he was not an “owner” of the motor vehicle herein, and as a consequence, does not fall within a coverage exclusion contained in the uninsured motorist provision of a policy issued by plaintiff, The appeal presents one basic question: Is a person who parts with ...
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*577 Opinion The Orange County Employees Association (OCEA) unsuccessfully sued in declaratory relief, seeking a ruling that the County of Orange and the county’s municipal courts could not preclude certain special sheriff’s officers, deputy coroners, and court service officers from carrying concealed firearms off duty. We reverse with directions to enter judgment for OCEA. ...
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Opinion In this action by a retailer against a distributor of beauty supplies, plaintiff and appellant Isaiah Khoury appeals from the trial court’s order of dismissal in favor of defendants and respondents Maly’s of California, Inc., and John Maly, following the sustaining of demurrer, without leave to amend, to the second amended complaint. The factual allegations of appellant’s unv...
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Opinion I. Introduction Petitioner, the City of Los Angeles, seeks a writ of mandate directing the respondent court to grant its motion for summary judgment. Because plaintiffs’ lawsuit and petition for relief from the claims requirement were not *624 timely filed, the summary judgment motion should have been granted. Accordingly, the petition is granted. 1 II. Facts and Procedural Hist...
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Opinion The Restaurant Enterprises Group, Inc. (appellant) appeals an order by the superior court compelling production of documents pursuant to an administrative subpoena duces tecum (subpoena) issued by the Division of Labor Standards Enforcement (DLSE). The DLSE seeks to determine whether appellant is subject to California Labor Code section 227.3 1 , which prohibits tiie fo...
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Opinion In this case a San Diego jury returned a verdict assessing $6.5 million in exemplary damages against a Wisconsin corporation. The corporation’s liability insurers, residents of Connecticut, Alabama, *640 Texas and Illinois, filed a declaratory relief action alleging they were not required to provide the corporation with any indemnity for the exemplary damages. The cor...
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Opinion Introduction Michael Tyrone Williams appeals following his conviction by a jury of two counts of attempted murder (Pen. Code, §§ 664/187, subd. (a)), with findings that he had inflicted great bodily injury on the victim as a result of discharging a firearm from a motor vehicle (Pen. Code, § 12022.55). The attempted murders occurred during a gang-related drive-by shooting. Appellant wa...
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Opinion Ronnie Charles Foster appeals the trial court’s judgment dismissing his suit after granting respondent San Luis Obispo County’s motion for summary judgment. We affirm. The issue in this appeal is whether respondent can be sued for legal malpractice based upon the alleged negligent performance of the lawyer it provided for appellant when he was an indigent criminal defendant. ...
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Opinion Plaintiff Josefina Hernandez filed an unverified third amended complaint against the City of San Jose (City) and others on October 27, 1987. 1 The complaint sought damages due to the alleged wrongful death of plaintiff’s 15-year-old son, Robert. 2 City filed an answer to the complaint on March 3, 1988, generally denying all allegations in the complaint. On September 10, 1991, City m...
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Opinion In this discovery proceeding we consider whether the trial court may order the production of an insurance policy in a personal injury action. Petitioners Irvington-Moore, Inc., and U.S. Natural Resources, Inc., are defendants in a personal injury action brought against them by real party in interest Charles David Jordan. 1 Defendants seek a writ of mandate compelling the respondent su...
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Opinion In this prosecution for obstructing and resisting a peace officer in the performance of his duty, we shall hold that the existence or not of exigent circumstances, upon which the People relied to justify the entry of peace officers into defendant’s home to arrest him without a warrant, is an issue for the jury invoking the trial court’s duty sua sponte to instruct thereon. Defendant w...
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CHIN, J. I. Introduction Jeffrey Allen Wallace appeals from a judgment of conviction for multiple sex offenses. The primary issues are (1) whether the court should have excluded deoxyribonucleic acid (DNA) analysis evidence, and (2) whether the court should have instructed the jury that an element of the five-year *655 enhancement for infliction of great bodily injury in ...
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Opinion This case presents the question whether a real estate broker had a duty to advise her client that the client’s real estate transactions could have adverse tax consequences. Plaintiff Ernest Carleton, an experienced real estate investor, employed defendant Mary Tortosa, a real estate broker, in the sale of two residential rental properties and the purchase of two residential r...
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Opinion Steven John Babich was charged in the first count of an information with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), 1 in the second count with felony false imprisonment by violence (§§ 236, 237), and in the third count with battery on a person in a dating relationship with defendant (§ 243, subd. (e)). The jury convicted defendant of the crimes charged in the secon...
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Opinion Plaintiffs Jose Zubia, Anita Zubia, Suzanne Zubia, Sylvia Zubia, and Jesus Ramos, Sr. (plaintiffs) appeal from a judgment in favor of defendant Farmers Insurance Exchange (Farmers). The trial court held a reimbursement provision in an automobile insurance policy issued by Farmers to plaintiff Jose Zubia was valid and enforceable as applied to medical expense payments made under th...
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Opinion Victor Anthony Valenzuela appeals from the judgment entered following his negotiated pleas of guilty to second degree robbery *839 (Pen. Code, § 211) 1 and grand theft of a motor vehicle (§ 487h, subd. (a)) and admissions that he used a knife in the commission of both crimes. (§ 12022, subd. (b).) He contends: “I. The trial court should have dismissed the Penal Code section 487h(a) ...
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Opinion This appeal arises from a heated public debate about the placement of a parole office in the San Gabriel Valley by the State of California (the State) Department of Corrections (the Department). Responding to complaints from citizens of Alhambra and Monterey Park, the State agreed to relocate a parole office from that area to the Pasadena area. The State selected a site in an exis...
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Opinion Settimo Associates (Settimo) appeals a judgment on the pleadings in favor of Environ Systems, Inc., Otto F. Newton, Site Preparation, Inc., and Developers Insurance Co. (collectively Environ) on Settimo’s complaint for intentional or negligent interference with prospective economic advantage. Settimo contends the court erred in determining that Environ’s bidding on private contrac...
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Opinion Shannon M., also known as Shannon R., (Shannon or the mother) appeals from an order of the juvenile court granting sole legal custody of her daughter Jennifer to Jennifer’s father, Michael R. (Michael or the father). Because we find the court’s order was in the best interest of the minor and supported by substantial evidence, we affirm. Background In September 1990 the San Diego County Dep...
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Opinion Defendant and appellant Duane Wood (Wood) appeals a judgment following a bench trial in favor of plaintiff and respondent Birgit Bergen (Bergen). The essential issue in this “palimony” case is whether the trial court erred in awarding support to Bergen. Because the parties never cohabited and the services Bergen rendered to Wood are not the type which is considered valuable consider...
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Opinion Eldred J. Makabali appeals after he pled no contest to one count of lewd conduct with a child (Pen. Code, § 288, subd. (a)) and was sentenced to three years in prison. He contends an attorney specifically appointed to investigate possible ineffective assistance by appellant’s trial counsel was himself ineffective because he refused to file a motion to withdraw the plea. Consequently, ...
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*868 Opinion This is an appeal by plaintiffs, John Lucas and his mother, Vicki L. Lucas, from a judgment entered in favor of defendant Fresno Unified School District (District) following the grant of District’s motion for summary judgment. The question presented is whether the doctrine of implied assumption of risk bars plaintiffs from holding District liable for the negligent fa...
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*863 Opinion An information charged Adam Timothy Mortera with murder (Pen. Code, 2 § 187) with allegations he was armed with a firearm (§ 12022, subd. (a)(1)), personally used a firearm (§ 12022.5, subd. (a)) and caused the death of the victim as a result of discharging a firearm from a motor vehicle (§ 12022.55). Mortera pleaded not guilty and denied the allegations. ...
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Opinion The County of San Diego (County) appeals a judgment requiring it to indemnify Sheriff Lieutenant John Tenwolde (Tenwolde) for attorney fees awarded against him in an underlying lawsuit, California Common Cause v. Duffy (1987) 200 Cal.App.3d 730 [246 Cal.Rptr. 285] (hereafter Common Cause). By special verdict, a jury found (1) Tenwolde was represent...
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Opinion Arthur L. Harris appeals from an order entered on October 22, 1991, finding him not competent to stand trial. While this appeal was pending, appellant was certified competent and criminal proceedings were reinstituted. In a second Penal Code section 1368 proceeding, a jury found appellant competent to stand trial, and he has since been convicted of several felonies. Although seve...
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Opinion Defendant Christopher James McGuire pleaded guilty to transporting methamphetamine (Health & Saf. Code, § 11379), possessing methamphetamine for sale (Health & Saf. Code, § 11378), being under the *691 influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), driving a vehicle under the influence of a drug (Veh. Code, § 23152, subd. (a)), and givin...
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Opinion By amended notice of appeal appellant Gerald K. seeks review of (1) an order sustaining jurisdictional findings concerning his son, Alexander (Sasha) K., bom September 6, 1984; and (2) a dispositional order prohibiting visitation and contact between father and son except as agreed upon by their respective therapists. I. Background A. Pre-Petition Events During a six-month period in 1985, ...
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Opinion Sean Jensen seeks reversal of a judgment of nonsuit following his opening statement at the trial of his defamation action against his former employer, Hewlett-Packard Company, and one of its supervisors, Rod Smith. In a nutshell, the lawsuit involves a difference of opinion between an employer and an employee about the quality of the employee’s work. A Hewlett-Packard supervisor, Hank P...
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Opinion The underlying litigation in this case arises from an automobile accident in which plaintiff sustained personal injuries. The matter was tried to a jury which assessed plaintiff’s comparative fault at 27 percent and awarded her $13,000 in economic damages and $25,000 in noneconomic damages. Plaintiff unsuccessfully sought a new trial based primarily on alleged juror misconduct. We...
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*1049 Opinion Appellants David Morgan and James Morgan seek to reverse a judgment, following an eminent domain trial, in favor of respondent Long Beach Community Redevelopment Agency (the Agency). The judgment determined that the Agency had a right to lawfully take appellants’ property by eminent domain and fixed the amount of compensation at $193,000. Appellants maintain that: t...
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Opinion Pursuant to Welfare and Institutions Code section 11350.1, the Orange County District Attorney filed a complaint on behalf of Jennifer K. against Leslie B. and Gregory Z. to establish paternity and to provide support. Gregory was married to and lived with Jennifer’s mother Catherine K. when Jennifer was conceived, but they separated and divorced shortly thereafter. Leslie was having a s...
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Opinion The Home Insurance Company and H. L. Yoh Company (appellants) appeal from a judgment entered in favor of the Hertz Corporation and Fireman’s Fund Insurance Companies (respondents) in a declaratory *1074 relief action. The parties had disputed the question of who was obligated to fund the settlement entered into with two third party victims injured in an accident invol...
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Opinion Queen T. (minor) was found in violation of Vehicle Code 1 section 23153, subdivision (a), driving under the influence of alcohol and causing injury, and an allegation she inflicted great bodily injury was found true. The issue presented on this appeal is whether steering a vehicle, without controlling the accelerator or brakes, constitutes “driving.” We hold that it does. I At app...
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Opinion Fred John Felix and David Walter Pedrico were each convicted of four counts of robbery (Pen. Code, § 211) 1 and three counts of false imprisonment (§ 236). Felix was found to have personally used a firearm in three of the robberies. All the charges arose from the armed robbery of a supermarket by two men. The defense for both defendants was misidentification, and neither testified. Ov...
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I concur in the judgment of affirmance. A. The Redacted Affidavit for Search Warrant Established Probable Cause for Its Issuance Assuming arguendo, as Justice Kline’s lead opinion indicates, that the tape recording was made in violation of title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C.1 § 2510 et seq.) (hereafter the Act or Title III), after excision of all referenc...
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Opinion Defendant Jeffery Burnell Healy was charged with numerous violations of Penal Code 1 section 273.5, subdivision (a), corporal injury to victims, Rhodona B., and Laura L. The charges pertaining to Rhodona B. *1139 took place over a period of nearly a year and involved frequent and brutal beatings causing severe injuries. Healy was also charged with torturing Laura L. in violation of ...
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*1263 Opinion Procedural History Petitioner has been charged by information with rape (Pen. Code, § 261, subd. (2)), robbery (Pen. Code, §211), residential burglary (Pen. Code, § 459) and first degree murder (Pen. Code, § 187, subd. (a)). The first degree murder charge also alleges special circumstances of rape, robbery and burglary (Pen. Code, § 190.2, subd. (a)(17)). He ha...
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Opinion The State Board of Control and several of its members (hereinafter collectively referred to as the Board) appeal from a judgment compelling the Board to deem the cost of medical services provided to indigent crime victims at Highland General Hospital in the County of Alameda, a “pecuniary loss” as defined by Government Code section 13960, subdivision (d). We will hold that ne...
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Opinion This is an eminent domain action brought by the City and County of San Francisco (City) to acquire a single lot owned by Golden Gate Heights Investments (GGHI). The property is a vacant, steep hillside in the Sunset neighborhood of the city. The property is known as the “Rock Outcropping” because it bears large and unique rock outcroppings visible from the Pacific Ocean. The City ...
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Opinion Statement of the Case Defendant Francisco Javier Vasquez appeals from a judgment entered after the trial court found him guilty of possession of marijuana for sale and *1161two counts of selling marijuana. (Health & Saf. Code, §§ 11359, 11360, subd, (a).) On appeal, he claims the court erred in denying his motion to suppress marijuana seized from him. We affirm the judgment. Facts At ...
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Opinion The development of the common law is often thought to be the province of creative lawyers. There are times, however, when persons without formal legal training play a significant role in bringing issues to the attention of the courts. In this case Alfred Banks, appearing in propria persona, was declared a vexatious litigant under the standards set forth in Code of Civil Procedure sectio...
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Opinion Plaintiff Holly Roach appeals from the order dismissing her action against defendants Donald Vaughn Lewis, Jr., Donald V. Lewis, Sr., and Ann H. Lewis for failure to prosecute. (Code Civ. Proc., § 583.420, subd. (a).) We affirm. Background On July 13,1988, with four days remaining under the applicable statute of limitations, Roach filed a complaint alleging that, as a result of havi...
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Opinion Donald Lynn Ellis appeals from the judgment entered following his plea of guilty to driving a motor vehicle with a blood-alcohol level of *1200 more than .08 percent with five prior convictions of driving a motor vehicle under the influence (Veh. Code, §§ 23152, subd. (b), 23175) and his admission of a prior felony conviction for which he served a separate prison term (Pen. Code, § 66...
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Opinion Defendants Maureen and Herbert Balter (defendants) appeal from a judgment entered in favor of plaintiffs Lorene and Robert Reid (plaintiffs). Following a jury trial on the merits, defendants challenge an order which vacated a prior order of dismissal that had been entered after plaintiffs had failed to appear at a scheduled pretrial status conference. Defendants also challenge a s...
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Opinion Appellant Dirk S. appeals from the dispositional order, declaring his son, Dirk S., to be a dependent child of the court. (Welf. & Inst. Code, § 300.) 1 Appellant asserts that the court prejudicially erred when it admitted into evidence the hearsay declarations of a witness who was subsequently found incompetent to testify at the hearing; and the court impermissibly del...
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*1287 Opinion Plaintiff insured appeals from an order denying her petition to compel arbitration of uninsured motorist claim. (Code Civ. Proc., § 1294, subd. (a); Ins. Code, § 11580.2, subd. (f).) 1 Facts In 1989, plaintiff and her grandfather, Bryson Russell, purchased a 1987 Mazda pickup truck. On April 7, 1989, Russell contacted Steven Kennedy, a State Farm a...
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Opinion Fair Political Practices Commission (FPPC) appeals from judgment granting peremptory writ of mandamus setting aside FPPC’s decision of July 9, 1991, assessing a $6,000 monetary penalty against Los Angeles Taxpayers Alliance (LATA) and Fred Huebscher for three violations of Government Code section 84305.5, subdivision (a)(2), 1 requiring that “slate mailers” contain a pr...
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Opinion A jury convicted defendant Toby Kirk Jones of first degree murder (Pen. Code, § 187). In an earlier appeal, this court filed an unpublished opinion on April 26, 1990, reversing the judgment of conviction because of instructional error. (People v. Jones (Apr. 26, 1990) E006297.) In the new trial on remand, a jury convicted Jones of second degree murder, and the court sentenced him ...
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Opinion In Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 271 [7 Cal.Rptr.2d 101], we held that a blood bank sued for negligent failure to safeguard its blood supply is subject to a professional standard of care. Thus, if negligent failure to prevent transmission of the AIDS virus is alleged, it must be shown that the blood bank failed to exercise the degree of care ordinaril...
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Opinion This appeal from a judgment dismissing an action for a tax refund challenges the validity of a provision of Proposition 103, approved by the electorate in 1989, which raised the rate of the insurance premium tax imposed by California Constitution article XIII, section 28. The State Compensation Insurance Fund (hereafter State Fund) is an “insurer” as defined by subdivision (a) of articl...
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Opinion Hector Adolfo Avina appeals his conviction on one count of continuous sexual abuse of a child (Pen. Code, § 288.5). 1 He contends he was deprived of his right to a unanimous jury verdict by an instruction, derived from language in the statute, allowing conviction without jury unanimity on which individual acts of abuse occurred. We find ourselves in agreement with the only previous de...
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Opinion Defendant and appellant Troy Earl Seals appeals from a judgment after a jury trial in which he was convicted of robbery with the use of a firearm and evading an officer, and a court trial in which it was found he had suffered a prior serious felony conviction and two prior prison terms for felony convictions. He contends the trial court erred in sentencing him to the upper terms for the...
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Opinion When an application to annex unincorporated territory to a city has been filed with a local agency formation commission (LAFCO), is the city obligated to agree with the county to an exchange of property tax revenues? If the city does not so agree, must the LAFCO nonetheless proceed to hear and determine the annexation application? In this case the trial court answered both of thes...
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Opinion Defendant appeals from the judgment entered below upon his conviction by jury of one count of forcible rape (Pen. Code, § 261, subd. *1396 (a)(2)) and one count of sexual battery (Pen. Code, § 243.4, subd. (a)). 1 On appeal, defendant has raised the following contentions: (1) There is insufficient evidence of “wrongful touching” to support the conviction of felony sexual battery in ...
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Opinion William L. Harris and individuals associated with Concerned Citizens for Human Life and Shield of Roses (hereafter sometimes *1388 collectively referred to as Harris) appeal the issuance of a permanent injunction prohibiting anti-abortion picketing in the parking lot, interior walkways and grass areas of the Fletcher Parkway Medical Center (hereafter Medical Center). ...
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Opinion This case involves a lawsuit by a number of individual consumers and corporate sales agents, including Cellular Plus, Inc., and others (Cellular Plus), against the two licensed providers of cellular telephone service in San Diego County. The trial court granted demurrers to causes of action for wholesale price fixing and retail price fixing under the Cartwright Act. Its decision a...
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Opinion Appellants 1 (Marco Aurelio Guzman and Ruben Correa) were tried without a jury and found guilty of narcotics-related offenses. 2 The Attorney General concedes the record “does not reflect an express waiver of the right to a jury trial by appellants].’’ The dispositive question is this: does the record, under the totality of circumstances, show a voluntary an...
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Opinion Defendant appeals from a judgment following his conviction on three counts of robbery and one count of kidnapping. We conditionally reverse the kidnapping conviction. In addition, errors committed in sentencing defendant require the sentence be vacated, and the matter remanded for new sentencing proceedings. Facts and Proceedings Below On a July evening at approximately ...
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Opinion Joseph L. Walkkein and Antonio Royal Watson were charged by information with attempted robbery (count 1; Pen. Code, *1404§ 664/211)1 and burglary (count 2; §459). During their court trial, over Watson’s objection, extrajudicial statements by Walkkein which incriminated Watson were admitted into evidence as to Walkkein only. Watson’s appeal raises the issue of whether the rule of People v. ...
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*1457 Opinion At night, four men entered a family residence and during a one- to one-and-one-half-hour period robbed four and assaulted two family members. Appellants were two of the four men. A jury convicted them of all charges. The sole contention of appellant Phan is the trial court erred in admitting the trial identification and pretrial photo identification by a robbery victim. Appell...
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Opinion A jury convicted Robert Arthur Gutierrez and Antonio Rosales Ambriz 1 of first degree murder (Pen. Code, 2 187) and two counts of first degree attempted murder (§§ 664/187). Firearm allegations (§§ 12022, subd. (a)(1), 12022.5 [appellant Ambriz only]) were found true. Appellants, singly or jointly, contend: (1) gang expert testimony was improperly admitt...
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Opinion In this case we hold that time spent at home in an electronic monitoring program as a condition of probation does not qualify for good conduct credits upon revocation of probation. Defendant Stephen Nelson Cook appeals from a judgment of imprisonment for false imprisonment (Pen. Code, §§ 236-237 [case No. 112367]) and petty theft with a prior (Pen. Code, §§ 484, 666 [case No. 137753])...
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Opinion In this case, we hold that the Workers’ Compensation Appeals Board (Board) did not have jurisdiction to alter the permanent and stationary date of the earliest industrial injury sustained by respondent Thelma Swain Gill (applicant), in order to apply the principles enunciated in Wilkinson v. Workers’ Comp. Appeals Bd. (1977) 19 Cal.3d 491 [138 Cal.Rptr. 696, 564 P.2d 848] (Wilkins...
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Opinion Does the California Environmental Quality Act apply to a city council’s decision to call for a special election to have the electorate decide whether to amend a general plan and zoning ordinance? We hold it does not. Steven C. Lee and Anthony Marvin Armas appeal from a judgment denying issuance of a writ of mandate. They brought this action to challenge the adequacy of enviro...
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Opinion Introduction On June 5, 1990, the electorate adopted Proposition 115, the “Crime Victims Justice Reform Act.” (Raven v. Deukmejian (1990) 52 Cal.3d 336, 340 [276 Cal.Rptr. 326, 801 P.2d 1077].) Among its avowed purposes, as stated in the preamble, was “ . . to create a system ... in which violent criminals receive just punishment, . . .’ ” (Id. at p. 342.) Toward that end, Penal...
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Opinion The plaintiff, Linda Thiele (Thiele), appeals from a judgment of the superior court dismissing her complaint following the sustaining of defendant American Arbitration Association’s (AAA) demurrer without leave to amend. The central issue on appeal is whether the immunity shielding arbitrators from civil liability extends to organizations sponsoring arbitrations, and, if so, ...
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Opinion Defendant appeals from his conviction by jury of one count of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (b))—attended by a true finding (the truth of which had been admitted by defendant) that he had suffered a prior conviction of a serious felony within the meaning of section 667, subdivision (a). 1 On appeal, defendant raises only one contention: The trial court erred...
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Opinion Petitioner and appellant David Sharp (Sharp) appeals from the judgment of the court below denying his petition for writ of mandate in which he sought to set aside the action of respondent, the Los Angeles County Civil Service Commission (the Commission), in adopting the findings and conclusions of a hearing officer it appointed to hear Sharp’s grievance or, alternatively, to compel resp...
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Opinion Defendant and cross-complainant Moshe E. Cukierman (appellant) appeals from the trial court’s judgment awarding relief to plaintiff and cross-defendant City of Berkeley (City or respondent) in an action brought to collect unpaid taxes under the Berkeley Business License Tax Ordinance. I. Factual and Procedural Background A. Regulatory Scheme In 1977 the City...
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Opinion Introduction Plaintiff and appellant Clarice Hayman (appellant) appeals from a judgment entered against her and in favor of defendants and respondents Sitmar Cruises, Inc. (Sitmar) and Princess Cruises, Inc. (Princess) (Sitmar and Princess are referred to collectively as respondents) after the grant of respondents’ motion for summary judgment on the ground appellant’s action ...
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Opinion MOORE, J. In a bifurcated personal injury trial against two defendants, the jury rendered a verdict finding one defendant liable and the other not *1645 liable for the plaintiffs injuries. Before the jury reached a decision on damages, both defendants settled and obtained an order under Code of Civil Procedure section 877.6 1 finding the settlement to b...
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Opinion I. This is a loan guaranty case. Appellant Tom Y. Lee guaranteed a $5.2 million loan from Cathay Bank to a hotel firm of which he was the corporate secretary and a director. The loan was secured by a Quality Inn in Buena Park. The hotel firm defaulted, and the bank foreclosed in a private sale. There was a deficiency between the amount realized at the sale and the amount owin...
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Opinion Debbie L. and Robert U. appeal from the order terminating their parental relationship with Roderick U. (Welf. & Inst. Code,1 § 366.26). They raise a variety, of procedural claims related to the section 366.26 hearing and the fact that a referee conducted the proceeding without the parents’ stipulation. They also attack the sufficiency of the evidence to support the referee’s adoptability ...
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Opinion Statement of the Case Plaintiff Keith Curties appeals from the judgment entered after a jury verdict in favor of defendant Hill Top Developers, Inc., on Curties’s complaint for personal injuries. Curties slipped and fell on a sloping lawn on Hill Top’s property. Although the jury found that Hill Top was negligent in the management of the property and that its negligence was the legal ...
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Opinion Facts A petition was filed under Welfare and Institutions Code sections 602 and 777 to declare Donald R. (Donald) a ward of the court. The petition alleged that Donald committed lewd and lascivious acts upon a child under the age of 14 with force (Pen. Code,1 § 288, subd. (b)) and committed lewd and lascivious acts upon a child under the age of 14 (§ 288, subd. (a)). Donald waived the rig...
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Opinion Defendants, ITT Consumer Financial Corporation, Aetna Finance Company, ITT Lyndon Property Insurance Company, ITT Lyndon Life Insurance Company, and John M. Higgins (collectively ITT), appeal from an order denying their petition to compel arbitration and prohibiting them from confirming arbitration awards in the City and County of San Francisco. Plaintiffs Abbe Kanarek Patterson e...
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Opinion In this case we are asked to determine whether earnings of a wife, designated as separate property by a prenuptial agreement, are subject to her husband’s creditors’ claims where her earnings are the sole income of the family. We hold that they are not and reverse the order of the lower court. I. Facts Leasefirst obtained a judgment against Fred Borrelli. The judgment arose from a dispute ...
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Opinion Appellant challenges the judgment rendered on the pleadings in this unlawful detainer action. His rather lengthy enumeration of contentions may be summarized as follows: The court abused its discretion in granting a judgment on the pleadings and by awarding unreasonable attorney fees. In the published portion of this opinion, we review the correctness of the court’s judgment on the pleadin...
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Opinion Union Oil Company of California et al. (Union) appeals from the $5,298,198 judgment of the trial court for injecting offsite wastewater into the mineral estate owned by respondents, Gus Cassinos et al. 1 We affirm, except for part of the prejudgment interest awarded by the trial court. Before 1917, Escolle owned the subject property in fee simple absolute. In 1917,...
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Opinion The underlying action is a third party bad faith insurance case brought by plaintiffs Alex Tiffany et al„ against defendants State Farm Mutual Automobile Insurance Company (State Farm) et al. This appeal involves only a collateral order which imposed a monetary sanction of $2,500, payable to plaintiffs, against appellants State Farm and its attorneys, Spray, Gould & Bowers. The sanction w...
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Opinion Appellant was convicted by jury of two counts of robbery, in one of which he had used a deadly or dangerous weapon. (Pen. Code, §§ 211, 12022, subd. (b).) The court imposed a total sentence of five years and directed that it be served in the California Youth Authority. (Welf. & Inst. Code, § 1731.5, subd. (c).) He appeals contending: “I. Appellant was denied his right to a fa...
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Opinion Defendant, Bonnie Lucille Willett 1 , pled guilty to being an accessory to an assault. (Pen. Code, § 32.) 2 On June 29, 1987, the court withheld pronouncement of judgment and granted defendant three years’ supervised probation. On June 19, 1990, the probation department petitioned the court to revoke defendant’s probation because she had been arrested and held to answer in Sacrame...
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Opinion I Defendants Conway, Robinson, and Jackson were each convicted by a jury of various attempted murder, kidnapping, burglary, attempted robbery, and assault offenses arising out of an attempted robbery of a check-cashing business, and a subsequent shoot-out with sheriff’s deputies. On appeal, they each raise numerous trial and sentencing issues. We consider those issues in...
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Opinion Assume A is insured under an automobile liability policy with underinsured motorist coverage limits of $15,000 per person/$30,000 per occurrence. A is injured in a collision for which B is liable. B is insured under a policy with $15,000/$30,000 liability limits. Because other persons were also injured in the accident, the amount of benefits under B’s policy actually available to A is $...
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Opinion This case presents the question of when, and by which court, the two-year on-bail enhancement provided for in Penal Code 1 section 12022.1 should be imposed under the circumstances described in subdivision (d) 2 of that statute, i.e., when the defendant has reoffended (i.e., committed a “secondary” offense) while on bail or own-recognizance release on charges...
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*14 Opinion Revenue and Taxation Code 1 section 19055 provides that an administrative claim for refund of income taxes when “filed for or on behalf of a class of taxpayers shall do all of the following: [ft] (a) Be accompanied by written authorization from each taxpayer sought to be included in the . class, [ftl (b) Be signed by each taxpayer or taxpayer’s authorized r...
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*25 Opinion San Francisco’s rent control ordinance allows a landlord to evict a tenant to permit a designated relative to occupy the premises, but specifies no time limit within which that occupancy shall commence, Under the facts in this case, we hold that the question of when the former tenant discovered or should have discovered the relative never occupied the premises, so as...
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Opinion Plaintiffs appeal from the judgment of dismissal following the sustaining without leave to amend demurrers to the second amended complaint of defendants Highland Federal Bank (Highland), Ben Karmelich (Karmelich), Selina Elizabeth Pratt (Pratt), and H.F.S. Corporation (HFS; collectively, the Highland defendants). The court found the complaint failed to state a cause of action for ...
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15 Cal.App.4th 41 (1993) 18 Cal. Rptr.2d 617 THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; EARL FRANK WESTBROOK, Real Party in Interest. Docket No. D017961. Court of Appeals of California, Fourth District, Division One. April 22, 1993. *43 COUNSEL Edwin L. Miller, Jr., District Attorney, Evan G. Miller, Deputy District Attorney, Daniel E. Lungren, Attorney General...
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Opinion At a contested jurisdictional hearing, the juvenile court found Prentiss C. committed the following crimes: rape (Pen. Code, § 261. subd. (2)); 1 forcible oral copulation (§ 288a, subd. (c)); rape by foreign *1486 object (§ 289, subd (a)); attempted robbery (two counts) (§§ 211/664); false imprisonment (two counts) (§ 236); exhibiting a firearm (§ 417, subd...
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Opinion Defendant appeals after a misdemeanor conviction of possession of less than one ounce of marijuana. (Health & Saf. Code, § 11357, subd. (b).) We transferred the case to this court pursuant to rule 62(a), California Rules of Court to settle an important question of law, to wit, whether diversion from criminal proceedings under Penal Code section 1000 is available for a first such o...
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Opinion The trial court ruled that appellants could not shift to an insurer the costs of defending and settling a claim for sexual harassment, since the incidents of sexual harassment in issue here constituted intentional acts, for which coverage would be barred by language in the policy and by Insurance Code section 533. We agree with this conclusion and affirm. 1. Facts and Procedu...
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Opinion Bayscene Resident Negotiators (Negotiators) appeals from an order dismissing its petition to correct and confirm an arbitration award against the Bayscene Mobilehome Park (the Park) and its owners (collectively, the owners). The court dismissed the petition, finding a provision of the city ordinance mandating binding arbitration of mobilehome rent disputes unconstitutional. The co...
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15 Cal.App.4th 56 (1993) 18 Cal. Rptr.2d 726 CHAMPION/L.B.S. ASSOCIATES DEVELOPMENT COMPANY, Plaintiff and Respondent, v. E-Z SERVE PETROLEUM MARKETING, INC., Defendant and Appellant. Docket No. G012930. Court of Appeals of California, Fourth District, Division Three. April 22, 1993. *57 COUNSEL Cain & Cain and Gene Cain for Defendant and Appellant. Timothy D. Reuben and Ronny Sendukas for Pl...
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Opinion Quy Van Pham was convicted by a jury of second degree burglary of a motor vehicle (Pen. Code, § 459), 1 count I; second degree robbery of John Guevara (§ 212.5, subd. (b)), count II; petty theft from John Guevara with a prior theft conviction (§ 666), count III; second degree robbery of Steve Oravec, count IV; petty theft from Steve Gravee with a prior theft conviction, count V; and a...
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Opinion During an argument, defendant stabbed the victim with a knife. A jury convicted defendant of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and found true the allegation he used a deadly weapon in the commission of the offense (Pen. Code, § 12022, subd. (b); further section references are to the Penal *110 Code unless ...
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Opinion Class action plaintiffs engaged in the construction of a residential care facility (the Helicon Project) in Riverside County (the County) *1580 petitioned the superior court for writ of mandate against a decision by the Director of the Department of Industrial Relations (the Director) that the project was not a “public works” project under Labor Code section 1720 or 1...
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Opinion Unemployment Insurance Code section 1253, subdivision (c) disqualifies an applicant from receiving unemployment benefits for any period during which she is not able or available to work. (Further statutory *1794 references to sections of an undesignated code are to the Unemployment Insurance Code.) In this appeal we conclude an undocumented alien who does not have wor...
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Opinion Edward Stolz II appeals from an order dismissing his action against Bank of America because he failed to furnish security as required by the vexatious litigant statutes (Code Civ. Proc., § 391 et seq.) 1 He challenges the order (judgment of dismissal) on assorted grounds, none of which has merit. In the published portion of the opinion 2 we hold that pri...
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Opinion Petitioner seeks relief from an order adjudicating him in contempt for his failure to make monthly installment payments under a judgment ordering him to reimburse real party in interest, the County of El Dorado (county), for public assistance benefits provided by the county to petitioner’s children. We shall hold that such a judgment is not enforceable by contempt. Accordingly, w...
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*138 Opinion Factual and Procedural Background Appellant Nashon Chapman was charged by information in count 1 with brandishing a firearm in a threatening manner in a police officer’s presence (Pen. Code, 1 § 417, subd. (b)) and in count 2 with being a felon in possession of a firearm (§ 12021). The information also alleged that Chapman had a prior felony conviction for possession of narco...
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Opinion Respondents Lee and Shirley Prentiss sought a building permit for construction of an addition to their single family home, from appellants the City of South Pasadena, its building and planning division, and its building and planning director. Respondents’ application for the building permit became embroiled in controversy after appellants asserted that respondents’ home was a “qua...
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Opinion Appellant Charles Wayne Johnson (Johnson) appeals from his conviction by jury in count 1 of second degree murder with personal use of a deadly weapon, in count 2 (on the same facts) of vehicular manslaughter with gross negligence, and in count 3 of unlawful taking and driving a vehicle. Johnson thereafter admitted two prior felony convictions and a prison term. Counsel on appeal challen...
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Opinion If a defendant, by force, takes two purses from a purse owner while the other purse owner, four to five feet away, shouts “What are you doing? Stop!,” may the defendant be convicted of two counts of robbery? Our answer is yes. We affirm the judgment. Factual and Procedural Background The facts may be stated simply. Our perspective favors the judgmen...
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Opinion The question in this case is whether a judgment creditor may sue a judgment debtor’s insurance company under subdivision (b)(2) of section 11580 of the Insurance Code before an appeal from the judgment in the underlying action is resolved or the time within which to pursue an appeal has passed. Our answer is no. Facts In 1985,14-year-old Dwayne McKee was shot and injured by 13-year-old Je...
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*301 Opinion Plaintiffs John and Carolyne Wilson bought a home in Walnut Creek and later brought this action against the seller’s real estate brokerage and agent, Century 21 Great Western Realty (Century 21) and Harry Kraft, after realizing that the home had foundation problems. The case was tried to a jury on theories of fraud, negligent misrepresentation and negligence, but the...
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Opinion On June 30, 1976, Aminoil, Inc. (Aminoil), acquired the rights, as lessee under a geothermal lease, to drill for and produce geothermal steam from certain lands located in what is known as “The Geysers” area of Lake and Sonoma Counties, with the ultimate purpose of converting the steam to commercially valuable electric power. In October 1984 Phillips Petroleum Company (Phillips) a...
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Opinion A government agency builds a dam many years prior to the enactment of the California Environmental Quality Act (CEQA). The application to build the dam provides for the storing and annual release of water for various uses. Here we hold that the agency’s annual decision to release varying amounts of water to competing interests is part of an ongoing project, and is therefore exempt from ...
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*550 Opinion The Supreme Court in Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2, 834 P.2d 696] and Ford v. Gouin (1992) 3 Cal.4th 339 [11 Cal.Rptr.2d 30, 834 P.2d 724] has recently outlined a set of rules for the proper application of the “assumption of risk” doctrine in negligence cases in light of California comparative faul...
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Opinion Appellant Mickey Dora sued Frontline Video, Inc. (Frontline), among others, 1 for common law and statutory appropriation of name or likeness. He appeals from a summary judgment granted in favor of respondent. We affirm. Facts and Procedural History In the 1950’s, appellant surfed at Malibu Beach. According to respondent’s evidence in support of its summary judgment motion, appella...
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Opinion After denial of his motion to compel disclosure of a confidential surveillance location, appellant Sean Michael Hollins pled no contest to one count of sale of cocaine. (Health & Saf. Code, § 11352.) Having obtained a certificate of probable cause, he appeals the adverse ruling, contending that the court erred in upholding the officer’s claim of privilege and in failing to strike ...
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Opinion The Anaheim City School District and Maria Rodriguez (the District) appeal a judgment on arbitration award entered in favor of Rachelle Sígala. The judgment was entered nunc pro tunc after the trial court struck the District’s request for trial de novo; the latter action was a sanction for failure to enter into meaningful settlement negotiations. I Sígala filed a complaint against the Dis...
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Opinion This matter arises on a petition for a writ of mandate directing the superior court to overturn its order vacating a binding arbitration award. The award determines the rights and obligations of the parties to contracts for the purchase of natural gas. The superior court vacated the award for legal errors committed by the arbitrators in the construction of the contracts. When...
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*616 Opinion Stuart A. Safine, an attorney, filed an action against his ex-client, James M. Sinnott, for slightly over $4,000 in legal fees and costs advanced. Sinnott answered, stating as an affirmative defense that he had a claim against Safine contingent upon the outcome of a pending appeal. Sinnott then filed a cross-complaint for attorney malpractice, alleging that Safine’s ...
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Opinion The instant case presents an issue of first impression, i.e.: May school districts qualify as “special districts” within the meaning of the Landscaping and Lighting Act of 1972 (the Act)? (Sts. & Hy. Code, § 22500 et seq.) The trial court concluded they do and entered summary judgment in favor of defendants Whittier Union High School District and Bonita Unified *732 S...
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Opinion Desiree Rae Lankster, a minor, sued Alpha Beta Company for damages for personal injuries. Alpha Beta won (by a vote of nine to three) and Desiree moved for a new trial on grounds of juror misconduct. Her motion was denied and she appealed, presenting us with a record sufficient to establish juror misconduct but insufficient to determine whether the misconduct was prejudicial. We hold that...
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Opinion The Agricultural Labor Relations Board (ALRB) petitions for a writ of mandate after the superior court stayed ALRB administrative proceedings seeking to impose derivative liability on Mario Saikhon, the *751 Saikhon Family Trust dated June 3, 1988, and its trustees. We conclude the derivative liability proceedings are properly before the ALRB and should not have been stayed by the sup...
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Opinion After his motion to suppress evidence was denied, appellant Glenn Ray Alcorn pleaded nolo contendere to one count of possession *654 of methamphetamine in violation of Health and Safety Code section 11378. Pursuant to the terms of a plea bargain, other counts were dismissed, and Alcorn was sentenced to 16 months in state prison. On appeal Alcorn challenges the de...
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Opinion A jury convicted appellant of possessing a deadly weapon while lawfully confined in a jail. (Pen. Code, 1 § 4574, subd. (a).) 2 Appellant admitted three state prison prior felony convictions (§ 667.5, subd. (b)). *741 Appellant contends three errors require reversal: instructional error, admitting a People’s exhibit, and ineffective assistance of counsel. We find no prejudicial ...
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Opinion Pursuant to California Rules of Court, rule 62 et seq., we accepted a transfer of this case from the Appellate Department of the Riverside Superior Court. The sole issue presented by this appeal is the adequacy of the advance publicity of a sobriety checkpoint. The trial court found there was insufficient advance publicity for the checkpoint, and consequently, it granted a motion brough...
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*715 Opinion Defendant, Kenneth Noel Hord, was convicted of one count of lewd and lascivious acts committed by use of force or fear (Pen. Code, § 288, subd. (b)) 1 and one count of continuous sexual abuse of a child (§ 288.5), arising from his molestations of his stepdaughter Monica. Defendant appeals, claiming numerous errors. The contentions discussed in the unpublished portion of this op...
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Opinion Plaintiff, Native Sun/Lyon Communities, a California general partnership (Native Sun), appeals “from the ‘Statement of Decision,’ filed on *896 March 12, 1992, rendering judgment in favor of respondents on the first, second and third causes of action of plaintiffs First Amended Petition for Writ of Mandate and Complaint, as modified and confirmed in the ‘Order On Appl...
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Opinion Plaintiff filed this action to recover for personal injuries sustained when she was injured by defendants’ dog. The complaint alleges two counts sounding respectively in strict liability and negligence. A jury returned a verdict in favor of defendants. On appeal, plaintiff contends the trial court erred in admitting certain evidence and in refusing to give certain instructions, including ...
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Opinion This is an appeal by the Caiafa Professional Law Corporation from an order denying a petition to compel arbitration and staying further proceedings in the matter. We affirm. Facts and Proceedings Below Attorney Douglas Caiafa, practicing law as “Caiafa Professional Law Corporation” entered into a written agreement with State Farm Fire & Casualty Company (hereafter State ...
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Opinion This original writ proceeding arises out of a dispute over an application for a license for the construction and operation of a low-level radioactive waste disposal facility in Ward Valley near the City of Needles in the Southern California desert. 1 The petitioners challenge an order of the Department of Health Services (the department) for administrative proceedings i...
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Opinion Factual and Procedural History The issues in this case are (1) whether defendant, who spent most of the time before sentencing on house arrest as a condition of release on his own *1162 recognizance, is entitled to presentence custody credit pursuant to Penal Code section 2900.5, as amended in 1991; (2) if not, whether denying him such credits, while allowing the...
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Opinion Raymond James Bradley appeals a judgment convicting him of kidnapping with the intent to commit rape (Pen. Code, 1 §§ 207, 208, subd. (d)), assault with the intent to commit rape (§ 220), and sexual battery (§ 243.4, subd. (a)). Bradley contends his slight movement of the victim cannot support a conviction of kidnapping as a matter of law; there was insufficient evidenc...
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Opinion Petitioner Sharon French Wallace seeks a writ requiring respondent superior court to dismiss or stay a motion to modify child custody in deference to Kentucky where a child custody proceeding is pending. Although we disagree with the court’s conclusion that Kentucky does not have jurisdiction under the Uniform Child Custody Jurisdiction Act *1184 (UCCJA), we conclude ...
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*1200 Opinion Anthony Jackson appeals a judgment convicting him of possessing cocaine base (Health & Saf. Code, § 11350, subd. (a)), being a felon in possession of a firearm (Pen. Code, 1 § 12021, subd. (a)), and giving false identification to a peace officer (§ 148.9, subd. (a)). He contends the court erred in precluding an exculpatory written statement by Olivia John...
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Opinion This petition, brought under Code of Civil Procedure section 437c, subdivision (l), seeks a writ of mandate directing the superior *1191 court to reverse its order granting summary adjudication. The complaint which was the subject of the summary judgment motion contained five causes of action. Summary judgment was denied because the court found certain of the causes of action to be ...
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Opinion The subject of this case is the proper method to be used in valuing, for property tax purposes, a possessory interest held by a franchisee selling food and beverages at San Diego’s Jack Murphy Stadium. The interest was reassessed in 1983 because of an amendment to the existing concession agreement between the City of San Diego (City) and Service America Corporation (Service Americ...
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Opinion Plaintiffs and appellants Ronald A. Cawdrey (Cawdrey) and Mark Conte (Conte) appeal the judgment denying their petition for writ of mandamus and application for injunctive relief from the refusal of defendants and respondents City of Redondo Beach (the City) and City Clerk John L. Oliver to permit Cawdrey to seek reelection to a third term on the city council. The primary iss...
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*1176 Opinion Introduction Elizabeth C. A. Armondo appeals from the denial of a peremptory writ challenging the Department of Motor Vehicles’ (DMV) suspension of her driving privilege. The appeal poses two questions: first, whether a “disappearing lawful arrest”—i.e., an arrest which, by operation of law, is subsequently deemed only a detention—may support an administrative per se suspensio...
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Opinion We affirm the trial court’s grant of summary judgment to the defendant. Background Plaintiff Bao Tan Diep, doing business as Maxim’s Mattress Co., housed his business in a warehouse, which was covered by an insurance policy issued by defendant California Fair Plan Association. Plaintiff leased the property from Wendy and Allen Hart. The Harts contracted with Gruver Const...
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Opinion Teresa Diaz brought suit for medical malpractice against Samuel Merritt Hospital (Hospital) and several physicians (Doctors). Diaz *1270 appeals from a judgment entered pursuant to the terms of a settlement. (Code Civ. Proc., § 664.6.) 1 She contends section 664.6 was inapplicable because the written settlement on which the court based its judgment was signed only by Diaz’s attorney...
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Opinion This appeal is from a trial court order directing California’s Insurance Commissioner to accept three late claims in the liquidation proceeding against an insolvent insurer. We reverse as to one of the claims and affirm as to the others. Factual Background Carboline Company, a Missouri corporation, manufactured and sold roofing and surface coating products. Carboline was insured by ...
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Opinion Defendant, Walk on Water, Inc., appeals from postjudgment orders taxing costs, denying relief under Code of Civil Procedure section 473, and denying reconsideration. The combined effect of these orders was to preclude appellant from recovering contractual attorney fees, in a case in which it had prevailed, because of failure to file a motion together with the cost bill claiming them. We...
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Opinion Michael James Moriarty appeals from a judgment against him on a promissory note, arguing that the judgment is not supported by substantial evidence. Plaintiff Peter K. White, as trustee for his wife and Mr. and Mrs. John Fall, cross-appeals, arguing statute of limitations issues. We determine that the trial court applied the wrong statute of limitations and remand for recalculatio...
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Opinion Plaintiff Sharon A. Schaffield appeals from a verdict in favor of defendant Pierre G. Abboud, doing business as AM/PM Mini *1136 Market, on Schaffield’s action against Abboud for negligently selling an alcoholic beverage to an obviously intoxicated minor. Schaffield contends the court erred in (1) improperly instructing the jury on the definition of obvious intoxication, (2) granting ...
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Opinion Plaintiff filed an action to foreclose a $23,000 lien against defendants’ real property. The trial court granted a summary judgment for defendants. Civil Code section 3144 provides that no lien binds any property for more than 90 days unless within that time an action to foreclose the lien “is commenced in a proper court, . . .” This case involves the meaning of “a proper court,” as applie...
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Opinion Michael Schaefer sued Leon L. Williams and M. Larry Lawrence for breach of contract and defamation over a 1990 campaign brochure. Lawrence successfully demurred to the contract cause of action. Williams prevailed on the contract cause of action against him by securing a judgment on the pleadings. Subsequently, the trial court granted summary *1245 judgment in favor of both defendants ...
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Opinion Irving Mouton appeals his convictions for second degree murder (Pen. Code, § 187) 1 and being an accessory to a felony (§ 32). He raises several issues regarding application of the “natural and probable consequences” rule for extended liability of an aider and abettor, as well as other claims of error. We conclude the court’s failure to instruct on the target crimes def...
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Opinion The trial court, in a summary judgment proceeding, concluded Redwoods Community College District (District) improperly denied Kathleen Kistler, Allen Keppner, and Gary Peterson (respondents), certain of its outgoing administrators, their accrued vacation pay. The District had reassigned respondents to work as faculty members, but ordered them off the premises in order to use up th...
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Opinion This case involves the ongoing dispute between two neighbors, plaintiff Arnold Luster and defendant R.S. Collins, over an easement 30 feet wide and about 1,200 feet long, located on the borders of their respective properties. The easement burdens Collins’s property. Collins appeals the judgment entered after Luster successfully moved to confirm three arbitration awards dated ...
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Opinion Elia Najor appeals a judgment in favor of George Ateeq after the jury returned a special verdict in Ateeq’s favor and the court subsequently denied Najor’s motion for judgment based on a statute of limitations defense. Najor asserts the court erred in finding he was estopped from pleading the statute of limitations defense because of the duress he imposed on Ateeq through wrongful...
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Opinion As a result of a trial by jury, appellant Jeffrey Hawkins was convicted of battery with serious bodily injury, in violation of Penal Code section 243, subdivision (d). The jury also found true an enhancing allegation that appellant intentionally inflicted great bodily injury on the victim, within the meaning of Penal Code section 12022.7. The trial court sentenced appellant to the low...
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*1582 Opinion Plaintiffs appeal from summary judgments granted in favor of defendants George T. R. Murai Farms, Inc., Murai Farms Retirement Trust, and George Murai (collectively referred to as Murai) and Ramon Navarro, doing business as Chiquito Navarro Ranch (collectively Navarro). (Code Civ. Proc., § 437c.) 1 Plaintiffs Esteban Raul Lucas and Jorge Reyes (plaintiffs...
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Opinion Appellant was adjudicated a ward of the court (Welf. & Inst. Code, § 602) and placed on probation after the juvenile court found true allegations that appellant had resisted arrest (Pen. Code, § 148) and possessed cocaine (Health & Saf. Code, § 11351). Appellant asserts that he was unlawfully detained without reasonable suspicion. He therefore claims that (1) there was insufficien...
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Opinion After his motion to suppress evidence (Pen. Code, § 1538.5) was denied, defendant James Arthur Souza pleaded no contest to possession of methamphetamine for sale while armed with a firearm (Health & Saf. Code, § 11378; Pen. Code, §§ 12022, subd. (c), 1203.073, subd. (b)(2)), driving with a suspended or revoked driver’s license (Veh. Code, § 14601.1, subd. (a)), resisting arrest (P...
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Opinion Introduction In this shareholder derivative action plaintiff Rodney B. Shields is suing on behalf of Teledyne, Inc. (the Company) to recover for the Company damages it allegedly suffered due to the unlawful activities of certain employees of a subsidiary of the Company. The defendants to this action may be divided into three groups: The directors of the Company (Henry E. ...
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Opinion I. Introduction Defendant William Robert Turner appeals from a judgment of conviction entered upon his plea of nolo contendere to one count of the continuous sexual abuse of a child (Pen. Code, § 288.5) and an allegation that he *1693 occupied a position of special trust and committed an act of substantial sexual conduct, rendering him presumptively inel...
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*1677 Opinion Introduction Plaintiff appeals from summary judgments (Code Civ. Proc., § 437c) in a legal malpractice action arising from an industrial accident. 1 Facts In December 1987, Zurn Industries employed the 46-year-old plaintiff at a cogeneration plant construction project in Crow’s Landing, Stanislaus County. Zurn was a subcontractor and Kiewit In...
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Opinion In this case we hold, in light of the Legislature’s intent to protect California citizens from the wilful misconduct of minors by specifically *1707 regulating parental supervision, that nonresident parents who send their minor child to obtain an education at a public institution cause a sufficient effect in California to enable its courts to exercise specific personal jurisdiction ov...
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Opinion An action is brought against a governmental entity. The governmental entity asserts as a defense the party’s failure to comply with the governmental claims statute. We hold, among other things, that through its conduct a governmental entity may be estopped from asserting failure to comply with the claims statute. We also hold the governmental entity breached a covenant of goo...
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Opinion This case involves the imposition of two fees on a developer by a municipality as conditions of approval of a development project: (1) a $280,000 fee to mitigate the impact of a land-use change (the mitigation fee); and (2) a $33,220 fee in lieu of a requirement that art be placed on the development project (the in lieu art fee). The City of Culver City, the City Council of Culver...
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Opinion Petitioners Dee Rowe and S. Glover Rowe (collectively Rowe) seek a writ of mandate to overturn the trial court’s refusal to permit the amendment of Rowe’s complaint against the Church of Scientology of Orange County (Scientology) 1 to allege a claim for punitive damages. Such pre-pleading permission by the court is a requirement imposed by Code of Civil Procedure sectio...
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Opinion Hieu Chi Nguyen appeals from a sentence imposed on convictions for two counts of robbery (Pen. Code, § 211) 1 and one count of assault with a firearm (§ 245, subd. (a)(2)). We remand for the trial court to consider whether Nguyen should be transferred to the California Youth Authority for purposes of housing and rehabilitation. (Welf. & Inst. Code, § 1731.5, subd. (c).)...
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Opinion Does the Vehicle Code preempt an ordinance enacted by a charter city to ban vending from vehicles parked on public streets in residential areas? Yes. I Per the allegations of the complaint, plaintiffs are street vendors licensed by the City of Anaheim. All have sold produce from vehicles on streets in residential areas for at least seven years, some many years lo...
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*1823 Opinion I. Introduction In this case we hold that a Nevada cause of action to enforce gambling debts incurred at a casino for the purpose of providing the debtor with funds for gambling violates California’s public policy against gambling on credit and thus is unenforceable in this state. Metropolitan Creditors Service of Sacramento (MCS) challenges a municipal co...
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Opinion Following a court trial, defendants CSI Insurance Agency, Inc., and CSI agent Gordon Smith were found liable to their former client, *42 Larry Clement, 1 on a theory of negligent misrepresentation based on statements made by Smith assuring Clement he had insurance coverage which he did not in fact possess. In this appeal, defendants assert error in various ...
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Opinion Marine Wholesale/Warehouse Co., Inc. (Marine) appeals from a judgment granted in favor of the City of Los Angeles (City) in the amount of $10,034.06. *1837 We affirm based upon our finding that the City’s imposition of a gross receipts and payroll tax on Marine’s business operations is not preempted under the supremacy clause. Additionally, the tax does not violate t...
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Opinion Michael Peter Rush appeals from the judgment entered following a jury trial that resulted in his conviction of second degree robbery *23and grand theft of an automobile (Pen. Code, § 211 and former § 487h, subd. (a), now § 487, subd. 3), each with the use of a firearm (Pen. Code, § 12022.5), as alleged in a two-count information. He was sentenced to concurrent seven-year prison terms, comp...
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Opinion Plaintiff and appellant Virginia G., a minor, by her guardian ad litem Kathleen Navejas (Virginia G.), appeals the judgment on the pleadings entered in favor of defendant and respondent ABC Unified School District (the District) in an action for damages for personal injuries allegedly sustained by Virginia G. due to sexual molestation by a teacher. Because Virginia G. may be able to s...
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Opinion Plaintiff Lindsey David Kenly (Kenly) sued defendants Hiroshi Ukegawa (Ukegawa), Vista Loma Investments, a California general partnership (Vista Loma), and Ukegawa Brothers, a California general partnership (Ukegawa Brothers) for fraud. Kenly prevailed and recovered an award of $800,000 in compensatory damages and $200,000 in punitive damages. Defendants do not challenge the ...
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Opinion Respondent, David Dean Richards, was convicted of two counts of first degree burglary, six counts of forcible rape, two counts of attempted forcible sodomy, and two counts of forcible oral copulation. On August 31, 1989, the Los Angeles Superior Court sentenced respondent to a total term of 61 years and 4 months imprisonment. Respondent was given 590 days credit for time actually ...
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Opinion In this appeal from a consent judgment entered in favor of respondent in a medical malpractice action, appellant contends that *83 the trial court erred in granting respondent’s motion in limine to exclude from the trial any expert testimony of appellant’s only orthopedic expert. We affirm. Facts Plaintiff and appellant Jerry Ann Richaud filed a m...
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Opinion The cost of Anjanette Farace’s bone marrow transplant and chemotherapy exceeded half a million dollars. Fortunately, she was covered by the health plans provided by each of her divorced parents’ respective employers. In fact, both plans—to their credit—paid for the treatment, leaving Children’s Hospital of Orange County overpaid by some $511,000. The hospital deposited this m...
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Opinion This case involves the present system of issuing parking citations, Defendant, apparently the owner of vehicles on which *Supp. 8parking citations were posted, contends that the evidence is insufficient to show that he was the registered owner of the vehicles and that no complaints were filed as required by law. Bail was posted and trials held at which the citations were contested. Defenda...
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Opinion Defendant was convicted of first degree burglary, and allegations that he had suffered prior serious felony convictions (Pen. Code, § 667) and a prison prior (Pen. Code, § 667.5, subd. (b)) were found true. Defendant was sentenced to 30 years in state prison. On appeal he makes numerous assertions of error including claims that (1) the trial court committed prejudicial error when it fai...
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Opinion Plaintiff Palomar Mobilehome Park Association, owner of two mobilehome parks in the city of San Marcos (City), appeals the denial of its petitions for writ of mandate to compel the City and its Mobile Home Rent Review Commission (Commission) to grant a requested increase in the rents which can be charged for spaces in the Palomar Estates West and Palomar Estates East mobilehome parks. W...
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Opinion Respondent Boyd Wayne Austin was employed by respondent Kirschenman Enterprises for approximately 25 years until March 17, 1987, when he became disabled. Austin suffered from major recurrent depression. Petitioner Western Growers Insurance Company (Western) and respondent Industrial Indemnity (Industrial) were the workers’ compensation carriers for Kirschenman Enterprises during t...
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Opinion Here we hold that the protest provisions of Government Code section 57075, subdivision (a)(3), allowing detachment of a large segment of the Oxnard Harbor District without voter confirmation by the registered voters within the affected territory, do not violate appellants’ constitutional rights either facially or as applied. Oxnard Harbor District (District), Stanley J. Daily...
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Opinion Palmco Corporation petitions for a writ of mandate directing the superior court to vacate an order for an accounting of its profits from a business conducted after operations were enjoined but while the injunction was stayed on appeal. It contends the court exceeded its jurisdiction. We conclude the trial court acted within its equitable powers and deny the writ petition. *223 Chul ...
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*187 Opinion In this case, we conclude that property owners are not entitled to recover under an “all risk” homeowners policy indemnifying them against damage to their property unless there is some manifestation of physical damage to the property during the policy period. Since there was no such manifestation during the policy period in this case (which extended until the sale of...
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Opinion Debbie S. obtained a judgment based on a theory of premises liability against United Mortgage, Inc. She appeals from the trial court’s order granting a motion to vacate the judgment brought by David L. Ray, who was appointed receiver for United Mortgage after the judgment was entered. The trial court based its order on appellant’s failure to serve a statement of damages required by Code...
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Opinion Following a trial without a jury, judgment was entered against defendant Clinical Data, Inc. (hereinafter, Clinical), for damages in the amount of $296,510.66. The damages reflected the total cost necessary to remedy various code violations which arose from structural changes made by Clinical’s subtenant on a commercial lease of real property owned by Louis Glasier 1974 Revocable ...
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Opinion We hold that an ex parte, lawful, and extant order appointing a temporary conservator of the estate of the conservatee constitutes an adjudication that the conservatee lacks the capacity to give away his or her real property. Michael O’Brien appeals from the judgment entered following a court trial. The trial court found that a gift deed from octogenarian Nadine Gamelin, O’Br...
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Opinion The chief question presented by this appeal is whether a trial court may dismiss a dependency proceeding after ordering a long-term placement as the permanent plan. In an unpublished portion of the opinion, we address the additional contention that the trial court failed to comply with the Indian Child Welfare Act despite indications in social workers’ reports and in testimony that the act...
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Opinion On August 23, 1991, an information was filed in Kern County Superior Court charging appellant Samuel Lee Shoemake with two counts of forcible sodomy in violation of Penal Code section 286, subdivision (c), one count of forcible oral copulation in violation of Penal Code section 288a, subdivision (c), and one count of rape by means of force in violation of Penal Code section 261, s...
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Opinion Diesel Electric Sales and Service, Inc. (Diesel) appeals a nonsuit judgment in favor of Marco Marine San Diego, Inc. (Marco or, alternatively, Marco San Diego) which dismissed Diesel’s action against Marco alleging secret, unearned discounts in violation of Business and Professions Code 1 section 17045. After Diesel completed presenting its evidence at trial, the court ...
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Opinion Kenneth Kovacevich appeals from a judgment entered in favor of defendants McKinney & Wainwright et al. (respondents) following a July 15, 1991, order granting respondents’ motion for nonsuit. In a bifurcated trial, the court determined the provisions of Code of Civil Procedure 1 section 340.6 barred Kovacevich’s March 4, 1986, action for damages for legal mal...
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Opinion Introduction This appeal raises the issue of the length of the period in which the State Board of Equalization (Board) may bring an action to collect delinquent taxes pursuant to Revenue and Taxation Code section 6711. Plaintiff and appellant the People of the State of California (the People), acting by and through the Board, appeal from the judgment in favor of *359 defendants an...
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16 Cal.App.4th 421 (1993) 20 Cal. Rptr.2d 97 NOLA M., Plaintiff and Respondent, v. UNIVERSITY OF SOUTHERN CALIFORNIA, Defendant and Appellant. Docket No. B059833. Court of Appeals of California, Second District, Division One. June 9, 1993. *423 COUNSEL Christian E. Markey, Jr., Mireille F. Gotsis, J. Andrew Coombs, Horvitz & Levy, Frederic D. Cohen and Douglas G. Benedon for Defendant and App...
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Opinion Appellant Bravo Vending (Bravo) appeals from a judgment against it on its action for declaratory relief and a permanent injunction and its petition for a writ of mandate, both of which sought to prevent the enforcement of an ordinance adopted by the City of Rancho Mirage (City). We affirm. *391 Factual and Procedural Background On December 6, 1990, the City adop...
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Opinion Introduction Petitioner Anita L. Kahn appeals from a judgment denying her petition for a writ of mandate by which she sought to compel respondent Department of Motor Vehicles (DMV) to return her personalized license plates. Procedural and Factual Background Petitioner is a certified court reporter employed by the Culver City Municipal Court. In approximately 1972, when petitioner ...
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Opinion plaintiffs appeal after the trial court denied their motion for class certification. 1 Facts This case basically involves the consolidation of six real estate limited partnerships (which the parties refer to as “the Centennial Partnerships”) and other private companies into a single corporate entity, defendant The Centennial Group, Inc., a Delaware corporation (w...
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Opinion This case concerns the application of Health and Safety Code section 11488.4, subdivision (a), which provides in pertinent part that a complaint for forfeiture of the alleged proceeds of drug trafficking must be filed “within one year of the seizure of the property which is subject to forfeiture . . . .” 1 The trial court concluded that a forfeiture complaint was barred by this statut...
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Opinion Introduction Concluding that the Legislature violated no constitutional or statutory provision in enacting section 97 and related sections of the California Revenue and Taxation Code, we deny a writ of mandamus challenging the implementation of that statute. On April 11, 1991, in the California Supreme Court, petitioners filed a petition for writ of mandate and requested...
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Opinion Gustavo Rojas Granados appeals from the judgment entered upon his plea of no contest to possession of money or instruments in excess of $100,000 involved in the unlawful sale or purchase of cocaine (Health & Saf. Code, § 11370.6, subd. (a)), following the denial of his motion to declare the statute under which he was charged unconstitutional. He contends: “Section 11370.6 of the Health an...
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Opinion This appeal involves matters of insurance coverage for numerous asbestos-in-building claims asserted against appellant Fibreboard *497 Corporation (Fibreboard). We are asked to decide three issues: (1) whether causes of action based on collective liability, in which a given defendant need not have supplied the harmful product, come within the policies’ “products hazar...
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*544 Opinion The trial court awarded attorney fees to defendant Kenneth K. Wang (Wang) following his successful defense of the fraud complaint filed by Super 7 Motel Associates (appellant). Appellant claims the attorney fee award was improper. We agree. 1. Facts Appellant sued numerous parties in connection with its purchase of certain property. Appellant’s comp...
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Opinion Appellant was convicted following a jury trial of misdemeanor indecent exposure in violation of Penal Code section 314, subdivision l.1 On appeal, he challenges that part of this sentence which requires him to register as a sex offender pursuant to section 290. The evidence presented at trial shows that Renee Lepre (hereafter Renee) was working as a street artist in front of the Shreve’s B...
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*369 Opinion This is a class action brought on behalf of the policyholders of the defendant and respondent State Farm Mutual Automobile Insurance Company (State Farm) by the plaintiff and appellant Benjamin G. Barnes (Barnes). By this action, in its final form prior to appeal, Barnes sought to preclude State Farm from spending premium revenues on political activities opposed by d...
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Opinion The People appeal from an order of dismissal in favor of defendants Antonio Pastor Cruz and Victor Pastor Cruz. The trial court dismissed the case because the police negligently lost a knife allegedly used in the charged crime of assault with a deadly weapon, to wit, a knife. We reverse. Facts The facts appear to be generally undisputed. A quarrel arose between defendants and the al...
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Opinion Introduction United Pacific Insurance (UPI) appeals from a judgment of the Contra Costa County Superior Court, ordering UPI as surety to pay attorney fees incurred by respondent subcontractor Liton General Engineering Contractor, Inc. (Liton), in its action against UPI on a public works payment bond, where the bulk of fees were incurred in arbitration of Liton’s contractual dispute with...
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Opinion In this proceeding, petitioners 1 seek a writ of mandate to compel the trial court to consider and rule on the merits of their motion, *526 made pursuant to Code of Civil Procedure section 425.13, subdivision (a),* 2 for leave to amend their complaints to allege claims for punitive damages against the Medical Center of North Hollywood, Valentine ...
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Opinion Upon his plea of guilty to attempted murder, assault with a deadly weapon, and several enhancements—infliction of great bodily injury, a prior serious felony conviction and 2 prior prison terms—Delgado was sentenced to a total term of 10 years, offset by 342 days of credits. He complains that he should have received no more than seven years which was the indicated sentence originally of...
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Opinion This appeal concerns the dismissal of a complaint filed in the Superior Court of Contra Costa County on November 28, 1990, by twenty-one individuals and the fiduciaries of three estates (hereafter appellants) against six defendants—East Bay Municipal Utility District (hereafter EBMUD), the City of Concord (hereafter City), State of California (hereafter State), Contra Costa County Water D...
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Opinion Petitioners contend that after trials on parking infractions, the court erred because it refused to settle statements on appeal with relevant pleadings and factual evidence. As we conclude that the court should have included the issue of the right to a speedy trial, the petition for a writ of mandate is granted. Factual and Procedural Synopsis Petitioners are defendants in two parki...
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Opinion William Lipari appeals from a judgment dismissing his petition for writ of mandate, in which he sought an order setting aside the suspension of his driver’s license by respondent Department of Motor Vehicles (DMV). He contends that the trial court erred in finding that, under Vehicle Code section 13559, 1 it lacked jurisdiction to hear his petition. We agree. Therefore,...
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Opinion Petitioner, plaintiff in a personal injury action, seeks a writ of mandate to vacate a superior court order requiring petitioner to produce a videotaped conversation between her attorney and herself. Because substantial evidence supports the trial court’s finding that petitioner *715 waived her attorney-client privilege (Evid. Code, 1 § 912, subd. (a)) we d...
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Opinion Plaintiff-appellant Warren Cohen, a veterinarian, appeals from a summary judgment 1 in favor of defendant-respondent Suzanne McIntyre and her parents in plaintiffs action for negligence brought as a result of injuries he suffered while treating defendant’s dog Lobo. This case is on remand from the California Supreme Court for reconsideration in light of Knight v. Jewett (1992) 3 C...
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Opinion I. Introduction Plaintiff, A Local and Regional Monitor (ALARM) appeals from the denial of its petition for writ of mandate to compel the City of Los Angeles to set aside and rescind the certification of an environmental impact report (EIR) which was adopted for a 40-story commercial office building project located on the northwest corner of Sixth and Boylston Streets which w...
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*698 Opinion The dispositive issue on this appeal is whether the trial court denied plaintiff-appellant his right to a jury trial. We conclude it did and reverse the judgment. Procedural Background We need not again fully recount the procedural history of this matter. On February 20, 1991, in an unpublished opinion (Cohill v. Nationwide Auto Service Inc., B044848) we provided that his...
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Opinion After being convicted of possessing methamphetamine for sale (Health & Saf. Code, § 11378), the defendant appeals. We affirm. Factual and Procedural Background Acting on a tip from a confidential informant, Officer Hatfield of the Cathedral City police applied for and obtained a warrant for the search of the defendant’s apartment. When the warrant was executed on May 22,...
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Opinion Here, we hold that a governmental entity and its agents may not offer a grant of public funds on condition that the recipient waive the constitutional right to privacy. We thus agree with the trial court which found that defendants, City of Santa Maria (City), its mayor, and city council, could not impose a grant restriction that conditioned the receipt of public funds upon the recipien...
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Opinion Gertrude C. Daley (Gertrude) appeals from an order appointing a receiver to bring property she owns into compliance with the San Francisco Municipal Code. 1 She contends the trial court lacked the authority to appoint a receiver, abused its discretion by appointing a receiver, and denied her a fair hearing prior to the appointment. We affirm. *737 I. Factu...
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Opinion Introduction Plaintiffs Rod and Helene Violette appeal from a judgment of the San Mateo County Superior Court dismissing their action against defendants Richard L. Shoup and ManEquity, Inc., following the court’s grant of summary judgment in favor of defendants. Plaintiffs contend the court erred in granting summary judgment. We shall affirm. Statement of Facts ...
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Opinion Colleen Manthey filed a complaint for personal injuries against San Luis Rey Downs Enterprises, Inc. (San Luis Rey) and others. Manthey also received workers’ compensation from Fairmont Insurance Company (Fairmont) since Manthey was within the course and scope of her employment with Sam Austin Birch (Birch) at the time of her injury. Prior to trial, *785 Manthey offer...
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Opinion In this case, a worker sued the manufacturer of a hand-held power grinder which severely injured his eye. The trial court granted summary judgment on grounds the grinder was “misused” by attaching the wrong disc to the machine. We reverse because the defendant failed to sustain its burden of proving the “misuse” caused the injury or of demonstrating the manufacturer provided an adequate...
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Opinion I. Defendant Steven Armendariz appeals from the sentence he received after pleading guilty to attempted robbery (Pen. Code, §§ 664/211), attempted murder (Pen. Code, §§ 664/187), and robbery (Pen. Code, § 211). He also admitted three firearm-use enhancements (Pen. Code, § 12022.5) and infliction of great bodily injury on the attempted murder charge (Pen. Code, § 12022.7). The...
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Opinion Background Plaintiff Leslie Galardi, an accomplished equestrian, sustained personal injuries when she fell from a horse while training for an upcoming horse show. On the theories of general negligence and premises liability, plaintiff sued two defendants, the owner of the stables (Judy Martin doing business as Seahorse Riding Club) and the instructor (Lisa Jacquin). Specifically, the ...
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Opinion Petitioner, the girlfriend of decedent William E. Kane, seeks a peremptory writ of mandate/prohibition to vacate a January 4, 1993, order directing the personal representative of decedent’s estate to destroy all of the decedent’s sperm in the custody and control of California Cryobank, Inc. The real parties in interest are the administrator of the decedent’s estate, (Robert L. Gre...
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Opinion Defendant, Jeramian Preston Parnell, was convicted by jury of felony murder and attempted robbery and sentenced to life imprisonment without possibility of parole. His appeal challenges his convictions *866 and the restitution order made part of his sentence. We affirm the convictions and remand the matter to the trial court for a redetermination as to restitution. Facts and Proceed...
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*922 Opinion Appellant Heide V. Betz appeals the denial of her petition to vacate an arbitration award in favor of respondent Charles J. Pankow. She contends the award by two male members of a three-person arbitration panel was improperly influenced by gender bias against her and in favor of respondent. We conclude the record supports the trial court’s conclusion that appellant h...
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Opinion Appellant Heide V. Betz appeals an order denying her motion to vacate a judgment confirming an arbitration award in favor of respondent Charles J. Pankow, and imposing sanctions against her attorney. She contends the court erred in determining it was without jurisdiction to decide the motion on its merits while the judgment was pending on appeal. Facts and Procedural History An arbitratio...
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Opinion Security Pacific Business Credit, Inc., now known as BankAmerica Business Credit, Inc., but which for the sake of continuity will be referred to herein as “Security,” appeals an order imposing a $1,500 discovery sanction. The court imposed the sanction after Security opposed a motion to compel discovery without substantial justification for doing so. (Code Civ. Proc., § 2023, subd...
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*319 Opinion Jack Dale Sovereign appeals his conviction by guilty plea to attempted murder (Pen. Code, §§664, 187), 1 with great bodily injury (§ 1203.075) and by use of a deadly weapon (§ 12022, subd. (b)). He contends his plea is constitutionally defective because he did not expressly waive his right to a jury trial. We affirm. Facts and Procedural History ...
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16 Cal.App.4th 887 (1993) 20 Cal. Rptr.2d 418 RONALD S., a Minor, etc., Plaintiff and Respondent, v. COUNTY OF SAN DIEGO, Defendant and Appellant. Docket No. D012893. Court of Appeals of California, Fourth District, Division One. June 17, 1993. *890 COUNSEL Lloyd M. Harmon, Jr., County Counsel, Diane Bardsley, Chief Deputy County Counsel, David Froman and Deborah Peterson-Lee, Deputy County Couns...
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*996 Opinion Plaintiff and appellant 1119 Delaware, a California general partnership (Delaware), appeals an order of dismissal following the sustaining of a demurrer to its original complaint without leave to amend. 1 The demurrer was interposed by defendants and respondents Continental Land Title Company (Continental) and Lawyers Title Insurance Corporation (Lawyers T...
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*964 Opinion Armando Chris Quiroga (hereafter appellant) appeals a judgment of conviction after a jury trial for charges of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and resisting a peace officer (Pen. Code, § 148). The court placed him on probation for 3 years and ordered him to serve 180 days in county jail with credits of 163 days for time served. The...
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Opinion The court, sitting without a jury, found defendant1 guilty of manufacturing methamphetamine (count I), conspiracy to manufacture methamphetamine (count II), possession of methamphetamine for purposes of sale (count III) and conspiracy to possess methamphetamine for sale (count IV); and found true special allegations, as to counts I and II, that the substance containing methamphetamine exce...
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Opinion Michael Richard Fares was convicted by a jury of grand theft. (Pen. Code, 1 487, subd. 1.) His probation for two prior convictions was revoked and he was sentenced on all three convictions. Fares’s appeal does not challenge the trial or verdict in any respect. His one contention of error relates to the computation of presentence custody credits made by the trial court a...
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Opinion Petitioner Flowmaster, Inc. (Flowmaster), is the defendant in plaintiff Donald Von Dohlen’s (hereafter plaintiff) civil action for personal injuries incurred by him while operating a hydraulic power press manufactured by Flowmaster. Plaintiff is Flowmaster’s employee and was injured while performing his duties as a “parts maker.” Flowmaster moved for summary judgment on the ground that pl...
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Opinion The East Bay Municipal Utility District (hereafter appellant or the District) is a municipal utilities district which provides water to customers in Alameda and Contra Costa Counties, including the City of Lafayette (hereafter respondent or the City). The District owns property in the City on which it has operated a filter plant since 1929. The property, consisting of approximatel...
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16 Cal.App.4th 1034 (1993) 20 Cal. Rptr.2d 453 LAMBERT STEEL COMPANY, INC. et al., Plaintiffs and Appellants, v. HELLER FINANCIAL, INC., Defendant and Respondent. Docket Nos. B065073, B065187. Court of Appeals of California, Second District, Division Two. June 23, 1993. *1037 COUNSEL Gibbs, Giden, Locher & Fleming, Glenn E. Turner III, Leon F. Mead II, Polston, Schwartz, Hamilton & Fenste...
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Opinion Appellant contests the judgments of the trial court finding him guilty of various parking violations of the Los Angeles Municipal Code. I, II* III Appellant contends that Vehicle Code section 42001, subdivision (a) does not apply to parking violations.3 Appellant contends that Penal Code section 1463 (disposition of fines and forfeitures collected in municipal courts) does not include enha...
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Opinion On September 18, 1991, plaintiffs filed a personal injury action arising from an automobile collision. The complaint sought damages “according to proof” and exceeding “the jurisdictional minimum of [the municipal] court.” The complaint failed to request a specific amount of damages in either the body or the prayer. Defendant’s default was entered upon his failure to file a timely answer. H...
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Opinion I. Introduction Defendant was charged with grand theft (Pen. Code, § 487, subd. I) 1 but convicted of petty theft (§ 488)—ordinarily a misdemeanor offense. 2 However, defendant received a felony sentence pursuant to section 666 because he had prior convictions for theft-related offenses for which he had served prison terms. 3 On appeal, defendant contends he was improperly convi...
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Opinion Delfino Muniz was charged with conspiracy to commit an assault with a firearm. He waived his right to a jury trial, submitted the matter to the trial court on the transcript of his preliminary hearing, and was convicted. We affirm. Facts Muniz was originally charged with one count of conspiracy to commit murder. At his preliminary hearing, the prosecutor called only one witness, Dep...
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Opinion The primary issue presented by this case is whether a property owner whose land is condemned for a jail may value his property *1050 based on a highest and best use as a private detention facility. We conclude the answer is no and therefore reverse. Facts The property here is a parcel of about 525 acres of primarily vacant, undeveloped property in the Otay M...
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Opinion These three cases, consolidated on appeal, involve the meaning of the April and May 1992 “Curfew Law,” consisting of a Los Angeles City ordinance and an emergency order issued by the Mayor of Los Angeles. The Curfew Law was put in effect during the civil disturbances that followed the announcement of the verdict in the first Rodney King case. We agree with defendants that “mere presence” ...
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Opinion Plaintiff, the People (hereinafter, appellant) appeal from an order dismissing a misdemeanor complaint charging defendant Douglas Stewart Zimmerman (hereinafter, respondent) with begging in violation of Penal Code section 647, subdivision (c). Appellant contends the trial court erred in dismissing the complaint pursuant to Blair v. Shanahan (N.D.Cal. 1991) 775 F.Supp. 1315, in which the U...
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Opinion In this case, we hold that a complete work stoppage on a public work of improvement for 30 days constitutes a “cessation” of labor and a “completion” of the project. (Civ. Code, § 3086.) 1 The cessation of labor on or completion of the project commences the period during which stop notices must be filed under California’s lien laws. (§ 3184.) Here, a subcontractor’s fai...
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Opinion The Board of Podiatric Medicine, Medical Board of California, Department of Consumer Affairs (the California Board) appeals from a judgment granting a writ of administrative mandamus (Code Civ. Proc., § 1094.5) brought by Dr. Neal Allen Marek and Dr. Robert G. Basinger (petitioners). Petitioners had successfully challenged in the superior court the California Board’s disciplinary ...
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Opinion Appellant Billy Trimble appeals from his conviction of one count of second degree burglary of a trailer coach. (Pen. Code, § 459.) He contends on appeal that the trial court was in error in failing to instruct the jury that for the appellant to be guilty of burglary the jurors must find that the trailer coach was locked. Additionally, he claims the trial court erred in not instructing t...
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Opinion I. Introduction In this case of contractual arbitration we hold that when a dispute arises over the appointment of an arbitrator, or between an arbitrator and one of the parties concerning the arbitrator’s fee, the remedy is to petition the court to resolve the dispute. Delay in seeking such relief which prevents the arbitration from going forward does not toll the five-year ...
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Opinion Paul D. Maloney appeals from the summary judgment entered in favor of defendants ANR Freight System, Inc. (ANR) and International Brotherhood of Teamsters, Local 63 (Local 63) in Maloney’s action for damages and injunctive relief to remedy unlawful employment discrimination based on physical handicap in violation of the Fair Employment and Housing Act (the FEHA, Gov. Code, § 12920...
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*1279 Opinion Steven and Sherry Besneatte sued homeowners in an adjoining tract to quiet title to an abandoned alleyway separating their properties. The trial court denied the Besneattes’ motion for summary adjudication of issues and entered summary judgment in favor of defendants. We affirm. I An abandoned alley, approximately 650 feet long and 20 feet wide, separates ...
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Opinion We transferred this case from the appellate department of the superior court on our own motion (Cal. Rules of Court, rule 62(a)) to determine whether an employer can unilaterally dismiss an action after it had appealed a Labor Commission award by seeking a trial de novo in municipal court. Consistent with the practice concerning trial de novo following arbitration, we hold an employer d...
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Opinion We can safely say, without fear of contradiction, that the attorneys in this case know their way to the Court of Appeal. Before this *1264 latest round, the various parties had petitioned this court for some type of extraordinary relief on no less than five occasions, resulting in four summary denials and one unpublished opinion. 1 If we could issue frequent flyer miles, these parti...
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Opinion This case addresses the propriety of a temporary child custody order issued in an action brought pursuant to the Domestic Violence Prevention Act (Code Civ. Proc., § 540 et seq.). We conclude the act confers jurisdiction on the superior court to enter a temporary child custody order only if the minor is the child of the petitioner and respondent in the Domestic Violence Prevention...
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Opinion This case involves cross-appeals from a declaratory relief judgment concerning the rights of the parties to a commercial lease and the rights of the beneficiary under a deed of trust who eventually purchased the property at a nonjudicial foreclosure sale. The primary issues presented are whether the foreclosure under the trust deed extinguished the lease itself, whether the foreclosure ...
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*1293 Opinion A minority partner sued to recover his share of the proceeds of a sale of partnership property which occurred after he withdrew from the partnership, claiming he had relied on the majority partner’s representation that he intended to develop the property and would not sell it in bulk to third persons. The issue on this appeal is whether the representation supports a...
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16 Cal.App.4th 1361 (1993) 20 Cal. Rptr.2d 506 THE PEOPLE, Plaintiff and Respondent, v. DAMON L. COOKE, Defendant and Appellant. Docket No. A056548. Court of Appeals of California, First District, Division Four. June 29, 1993. *1363 COUNSEL Mark D. Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assist...
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*1400 Opinion The principal issue in this case is whether a plaintiff whose action is assigned to a trial court delay reduction program, and against whom no affirmative relief is sought, generally retains the right to voluntarily dismiss the action without prejudice prior to trial. We conclude that this plaintiff retained that right, and that the trial court acted in excess of it...
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Opinion Insurance Code section 11873, subdivision (a) exempts the State Compensation Insurance Fund (the Fund) from most provisions of the Government Code: “[T]he fund shall not be subject to the provisions of the Government Code made applicable to state agencies generally or collectively, unless the section specifically names the fund as an agency to which the provision applies.” The Cal...
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Opinion Code of Civil Procedure section 337.15, 1 enacted in 1971, imposes “an absolute requirement that a suit against a contractor to recover damages for a construction defect be brought within 10 years of the date of substantial completion of construction, regardless of the date of discovery of the defect.” (Regents of University of California v. Hartford Ac...
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Opinion Plaintiffs and Appellants Timothy Buhl, Jerald Bowman, Guru Bir Singh Khalsa and Peter Daniels appeal from a court order denying their motion for a preliminary injunction. 1 Plaintiffs seek to enjoin the state from enforcing California’s Mandatory Motorcycle Helmet Law, Vehicle Code section 27802 et seq. 2 (helmet law) during the pendency of their action to h...
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Opinion In one of several matters involving San Benito County grower Paul W. Bertuccio, the Agricultural Labor Relations Board (the Board) found Bertuccio guilty of refusal to bargain in violation of the Agricultural Labor Relations Act (the ALRA) and ordered (among other things) that he make whole his employees for economic losses caused by the refusal. (Paul W. Bertuccio (Dec...
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Opinion Aram B. James, an attorney employed by a county public defender’s office, sued a newspaper and one of its employees for libel. The employee, acting as a bylined columnist for the newspaper, had written, and the newspaper had printed, a column which named James in the context of a discussion of asserted violations of law by defense attorneys in criminal cases involving child victim...
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Opinion Plaintiff Elydia Zavala appeals from a judgment of nonsuit in her medical malpractice action against defendants. We affirm the judgment. On March 18, 1987, plaintiff filed a complaint in which she alleged that physician Judith Brillman failed to properly diagnose and treat plaintiff on June 5, 1986. Plaintiff claimed that, as a result of this alleged negligence, necessary sur...
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*1721 Opinion We hold here that an attorney representing a partnership does not necessarily have an attorney-client relationship with an individual partner for purposes of applying the conflict of interest rules. Whether such a relationship exists turns on finding an agreement, express or implied, that the attorney also represents the partner. Respondent Superior Court of Fr...
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Opinion Defendant entered a plea of nolo contendere to second degree robbery (Pen. Code, §§ 211/212.5, subd. (b)—count l) 1 and forgery of an access card transaction (§ 484f, subd. (2)—count 2), and admitted four prior state prison commitments (§ 667.5, subd. (b)). Following the denial of defendant’s motion to withdraw his plea, he was sentenced to state prison for a total term of 10 years, 8...
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Opinion The Case Linda Kay Ingram appeals from the judgment entered on a jury verdict convicting her of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and misdemeanor possession of marijuana (Health & Saf. Code, § 11357, subd. (b)). She was placed on probation for three years on condition, inter alia, she serve one year in the county jail. On appeal, she contend...
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*1739 Opinion The Case Elisha Lee Glower appeals from the judgment entered on his guilty plea to one violation of Health and Safety Code section 11351.5, possession of cocaine base for sale. 1 The court sentenced appellant to the five-year upper term and imposed a $2,000 restitution fine and a $10,000 fine. Appellant contends the court (1) erroneously excluded evidence and denied his moti...
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Opinion We find that plaintiff Patricia A. Walker was entitled to entry of a $15,000 judgment against defendant Michelle Belvedere pursuant to statutory liability imposed by the Vehicle Code. We reverse that part of the judgment denying Walker such relief. Background In February of 1987, Belvedere and Sydney Jane Allen lived together and were co-owners of the automobile involved in the acci...
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Opinion In this case, appellant has placed before the court two issues on appeal: Whether the jury trial held before Commissioner Theodore DeJung was unlawful because appellant never stipulated to allow a commissioner to preside over his trial. Whether it was unlawful to exclude a necessary defense witness from giving exculpatory evidence for appellant during the trial. I. Prior to commencement of...
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Opinion Larry E. Rembold, Jr., was convicted of a criminal offense and given the opportunity to complete 78 hours of community service in lieu of paying a fine. 1 He was fulfilling the community service option as a groundskeeper on the campus of California State University, Fullerton, when he was injured in a fall. He filed a claim for workers’ compensation benefits against the...
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*1800 Opinion Appellants, the City of Long Beach (hereafter the City), and James C. Hankla, City Manager of the City of Long Beach (hereafter Hankla), appeal from the judgment of the superior court granting a peremptory writ of mandamus in favor of respondent, Lawrence L. Binkley, the embattled Chief of Police for the City of Long Beach. The writ set aside appellants’ directive of March 2, 19...
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Opinion Alexis R. Austin appeals from an order taxing costs following a judgment entered in her favor on an arbitration award against respondent, Allstate Insurance Company. The court ruled that the only item appellant could recover against respondent was the $14 fee for filing her petition to confirm the arbitration award. Appellant had an automobile insurance policy issued by respo...
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Opinion Defendant Benjamin Lawrence Apodaca was charged by information in count I with possession of methamphetamine for sale (Health & Saf. Code, § 11378); in count II with possession of marijuana for sale (Health & Saf. Code, § 11359); in count III with possession of cocaine for sale (Health & Saf. Code, § 11351); and in count V with a misdemeanor offense of possession of drug paraphern...
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Opinion Plaintiffs Frances Marie Jackson, individually and as special administrator, etc., et al., appeal from a summary judgment in favor *1835 of defendant Ryder Truck Rental, Inc. (Ryder) in plaintiffs’ lawsuit for wrongful death. We shall reverse the summary judgment. Factual and Procedural Background A. Facts. Stated most favorably to plaintiffs, e...
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Opinion Permea, Inc., and its subsidiary, Zeks Air Dryer Corporation (collectively Zeks) appeal after a jury awarded plaintiff Anthony J. Roslan approximately $563,000 in his action for personal injuries. One third of the award was for noneconomic damages. The primary problem with this case is *112 that the trial court did not allow the jury to assess the comparative fault of two defendants w...
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Opinion Oryx Energy Company (hereinafter Oryx) was the lessee and the United States of America was the lessor of three mineral leases during the tax years 1983-1984, 1985-1986 and 1986-1987. 1 The leases granted to Oryx the right to take oil and gas from the federally owned land, and required Oryx to pay to the United States government a rent or “royalty” of approximately 13 pe...
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Opinion Both plaintiff-homeowners and defendant-contractors appeal from a judgment in favor of plaintiffs Charles and Betty Shaffer for damages based on theories of negligence and breach of warranty arising from the construction of a custom home. A detailed review of the lengthy record in this case is unnecessary for the purposes of the issues raised in this appeal. It is sufficient to no...
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Opinion North Coast Business Park (North Coast) appeals from the judgment entered after the trial court granted the motion for summary judgment filed by Erreca, Inc. (Erreca). Erreca’s motion was based on the statute of limitations. The trial court concluded (1) there was no triable issue of fact as to when North Coast first had notice of the defective condition; and (2) the statute of li...
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Opinion In this personal injury action, plaintiff-appellant appeals from an adverse summary judgment and contends the release she signed was invalid because against public interest (Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 [32 Cal.Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693]) and because she couldn’t read it. We affirm the judgment. Procedural and Factual Background The facts a...
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Opinion On July 29, 1987, plaintiff and respondent, Arciero Ranches (Arciero) filed a verified complaint alleging that defendants and appellants Amador Meza, Raquel Meza, and Does 1 through 100 had willfully trespassed, and would continue to trespass, on a certain road (the farm road) located on the Brothers Ranch in Kern County and owned by Arciero. Arciero sought, inter alia, a permanen...
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Opinion Petitioner Richard M. Newton (applicant) seeks review of the decision of respondent Workers’ Compensation Appeals Board (Board) that his claim for workers’ compensation benefits for a psychiatric injury allegedly sustained due to problems encountered while participating in a vocational rehabilitation (VR) program implemented by respondent employer Cal-Wood Door/Weyerhaeuser Claims...
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Opinion On February 18, 1992, defendant Charles Robert Beck was charged by information with nine counts of grand theft (Pen. Code, §§ 484, 487, subd. T, counts 1-9), one count of securities fraud (Corp. Code, § 25401; count 10), and two counts of tax evasion (Rev. & Tax. Code, § 19406; counts 11-12). The information further alleged that appellant was ineligible for probation because the l...
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Opinion This controversy between a real estate broker and his clients presents the following issues: (1) With respect to a contract arranged by their broker, can the clients ratify less than the whole of the contract? (2) Is the Invasion of Privacy Act (Pen. Code, §§ 630-637.6) 1 violated if a surreptitious recording of a confidential communication is not published to a third person? (3) Is a...
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Opinion In this case there is no evidence the defendant plastic surgeon acted below the standard of care for plastic surgeons or that he acted in an intentional or outrageous manner. Accordingly we reverse a $400,000 judgment entered against him for failing to perform promised breast surgery on the plaintiff. Factual and Procedural Background I Plaintiff’s Medical History Plaintiff an...
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Opinion Factual And Procedural Background 1 1. The Report of Child Abuse On the morning of May 9, 1989, eight-year-old Alicia W. complained of pain when she went to the bathroom. Her parents brought her to the Navy medical unit by 8:30 a.m. The family was then escorted to Children’s Hospital where staff determined Alicia had been raped and sodomized, and filed a report under the Child A...
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*232 Opinion Julie Ann Snow appeals the judgment denying her petition for a writ of mandate ordering the Department of Motor Vehicles (Department) to delete from its files references to her driving with excessive blood alcohol and suspension of her driver’s license. On July 21, 1991, California Highway Patrol Officer Eric Flynn arrested Snow for driving under the influence o...
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Opinion Charged with the willful, deliberate, premeditated attempted murder (Pen. Code, 1 §§ 664/187) of his 15-year-old son, appellant was convicted of assault with a firearm (§ 245, subd. (a)(2)). The jury found true gun use (§ 12022.5) and great bodily injury (§ 12022.7) allegations. Prior felony conviction (§ 667, subd. (a)) and habitual offender (§ 667.7) allegations were bifurcated and,...
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Opinion Defendant and appellant Steven A. Wilson was convicted by a jury of two counts of attempted voluntary manslaughter and two counts of assault with a firearm. As to each count, the jury found the allegation that appellant personally used a firearm within the meaning of Penal Code section 12022.2, subdivision (a) to be true. On this appeal, appellant challenges the admission of two p...
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*67 Opinion Plaintiffs appeal from a judgment after a court trial in favor of defendant Great Southwest Insurance Company. The sole issue is whether a third party claim, resulting from an auto accident, is covered under a business liability policy which purports to exclude coverage for automobile-related losses. We conclude that the policy does not provide coverage for the losses...
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Opinion In this appeal we consider an employee’s entitlement to attorney fees under Labor Code section 3856, subdivision (b), and *313 the interplay of that statute with Code of Civil Procedure section 1141.21. The first statute authorizes the recovery of litigation expenses and attorney fees when an injured employee alone prosecutes an action against a third party tortfeasor while the second...
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Opinion Plaintiff Dorothy Bush sustained personal injuries when she slipped and fell while dancing. She sued the organization sponsoring the *325dance and the public agency owning the dance hall. The trial court granted summary judgment against plaintiff based upon her assumption of the risk. We shall reverse. Factual and Procedural History Plaintiff filed a complaint for personal injury against ...
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Opinion Michael Berry appeals from the judgment entered upon his conviction by jury of first degree murder, two counts of attempted murder, and one count each of second degree robbery and first degree burglary, with findings the murder was committed with personal use of a firearm and during the commission of the robbery and burglary. (Pen. Code, §§ 187, 664/187, 211,459,12022.5,190.2, subd. (a)...
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Opinion Sexual harassment does not necessarily involve sexual conduct. It need not have anything to do with lewd acts, double entendres or sexual advances. Sexual harassment may involve conduct, whether blatant or subtle, that discriminates against a person solely because of that person’s sex. In this writ proceeding, we hold that sexual harassment occurs when an employer creates a h...
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17 Cal.App.4th 405 (1993) 21 Cal. Rptr.2d 193 THE PEOPLE, Plaintiff and Respondent, v. DONYELL DEVONE SCOTT, Defendant and Appellant. Docket No. B065317. Court of Appeals of California, Second District, Division Seven. July 21, 1993. *407 COUNSEL Joseph Balistocky, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief ...
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Opinion In this action we consider whether the complaint filed by plaintiffs Mathew Zaherí Corporation, doing business as Hayward Mitsubishi, and Mathew Zaherí was properly dismissed for failure to exhaust their *291 administrative remedy. We conclude it was and affirm the judgment in favor of defendant Mitsubishi Motor Sales of America, Inc. Procedural History 1 On July 12, 1991, plain...
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Opinion Plaintiffs appeal from summary judgment in favor of defendants on plaintiffs’ complaint for $200 million damages alleging various contract and tort theories. 1 The underlying dispute arises out of a concession agreement with the City of Los Angeles for operation of an equestrian facility on City-owned land in Griffith Park. In 1988, plaintiffs lost their interest in the...
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Opinion Defendants Los Angeles Unified School District (LAUSD) and seven individual members of the Los Angeles City Board of Education (the Board) 1 appeal from a preliminary injunction enjoining them from using tiie work time of public employees and “public funds or other public resources to adopt, prepare, print, distribute, or disseminate a promotion or advocacy position in ...
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Opinion Appellant Felipe Evangelista Sixto was sentenced to die for the capital murder of five-year-old Jorge Garza. His convictions were overturned due to the ineffectiveness of his trial attorneys. Upon retrial, with representation by new counsel, he was again convicted but sentenced to life imprisonment without the possibility of parole. In the published portion of this opinion, we will cons...
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*238 Opinion At the close of evidence in a bench trial, plaintiffs Jan F. Wilson and Redondo Investments, Inc. (Redondo), a Texas corporation wholly owned by Wilson’s husband, George Cl eland, moved for judgment on the pleadings. Defendants, S.L. Rey, Inc., San Ysidro Associates, III (SYA), and Juan Orendain moved for judgment under Code of Civil Procedure section 631.8. The tria...
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Opinion Plaintiff Anthony Giannuzzi seeks damages for injuries he suffered while riding his motorcycle on a trail within the Carnegie State Vehicular Recreation Park which is owned and operated by defendant State of California. According to plaintiff’s first amended complaint, on Christmas Eve of 1990 he was riding his motorcycle on “an established dirt trail leading over the top of ... a...
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Opinion Defendants appeal from an order denying their motion for attorney fees. They contend they are entitled to ah award of attorney fees after prevailing at trial, pursuant to the terms of a contract. We reverse the order of the trial court and remand the matter for determination of a reasonable award of attorney fees. Background Plaintiffs filed a complaint asserting ca...
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Opinion Robin R. Moerman alleged the state had damaged his property by relocating tule elk which were destroying his fences and *455 eating the forage intended for his livestock. The trial court granted the state’s motion for summary judgment. On appeal, Moerman contends the trial court erred, and that as a matter of law, there has been a taking of his property. We find ...
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Opinion Tracy Reed pled guilty to inmate battery on a correctional officer. (Pen. Code, § 4501.5; all further section references are to that code.) Sentenced to a full consecutive lower term of two years over his objection that only one-third the middle term of three years (i.e., one year) was authorized (§ 1170.1, subd. (c)), Reed appeals the sentence. We ¿firm. Background Reed...
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Opinion An information charged defendant Victor Manuel Limón with possessing heroin for sale (count one; Health & Saf. Code, § 11351) and possessing cocaine for sale (count two; Health & Saf. Code, § 11351). Defendant made an unsuccessful suppression motion at his *529preliminary hearing. He renewed the suppression motion in the superior court based on the transcript of the preliminary hearing an...
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Opinion This appeal by Morgan Stanley Mortgage Capital, Inc. (Morgan Stanley), involves one component of the immense and complex *508 litigation over the rehabilitation of Executive Life Insurance Company (ELIC). While separate litigation goes forward to determine other important issues such as creditor priorities, 1 this action raises the issue of whether the tria...
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Opinion In this “Royal Globe” bad faith action, Truck Insurance Exchange (Truck), the defendant below, appeals from the order of the trial court (1) granting the motion of the plaintiff, Jerome T. Stewart (Stewart), for a new trial on the issue of punitive damages, which had previously been eliminated by an order of nonsuit, and (2) denying Truck’s motion for a new trial as to the issue of it...
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*558 Opinion Michael James Siravo was convicted by a jury of sexually assaulting his wife’s housemate. The primary issue on appeal is whether the trial court properly compelled Mrs. Siravo’s testimony after she asserted the marital privilege. (Evid. Code, § 970.) We conclude that there is no marital testimonial privilege here because the victim was a “cohabitant” of appellant’s spouse. (Evid....
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Opinion In this insurance coverage dispute, State Farm Mutual Automobile Insurance Company (State Farm) appeals from a judgment in favor of Viking Insurance Company (Viking). The issue on appeal is whether under California law an underinsurance carrier, faced with claims from several insureds arising from one accident, can offset from the amount it owes to one of these insureds the amount...
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Opinion The San Jacinto Unified School District (School District) appeals from the judgment entered in favor of California Ranch Homes Development Company of Hemet (CRH) on CRH’s petition for writ of mandate. The judgment required the School District to refund to CRH school impact fees totaling $73,143.20 plus interest. On appeal, the School District contends the court erred in determining that...
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Opinion We review a decision of the Workers’ Compensation Appeals Board (Board) after reconsideration in which the Board ordered payment of $7,060 to applicant’s landlord, lien claimant Kenneth A. Hilton, from applicant’s workers’ compensation award of $12,000. Applicant has petitioned for a writ of review, contending that the order violated Labor Code sections 4901 and 4903 and that the Board fa...
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Opinion Following a jury trial, defendant Kevin Lamar Lipscomb was convicted of one count of first degree robbery (Pen. Code, §§ 211-212.5); 1 one count of false imprisonment by means of violence (§§ 236-237); one count of assault with a firearm (§ 245, subd. (a)(2)); and related firearm use enhancements (§ 12022.5). On appeal, defendant contends, inter alia, that his assault conviction must ...
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*596 Opinion Defendant, Donald E. Peel, was charged with attempted murder (Pen. Code, §§ 664, 187), 1 possession or explosion of a destructive device (§ 12303.3), assault with a deadly weapon (§ 245, subd. (a)(1)), and possession of materials with the intent to make a destructive device (§ 12312). It was also alleged he personally used a firearm in the commission of the offenses charged in ...
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Opinion Anita Marie Sutherland (defendant) appeals from the judgment after a jury convicted her of forgery (Pen. Code, § 470), burglary (Pen. Code, § 459), and soliciting a minor to commit a felony (Pen. Code, § dSSj). 1 She argues the judgment must be reversed because the court failed to give proper jury instructions, because the prosecutor committed prejudicial misconduct, and because she w...
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Opinion Ronald Lesinski and Ruth Lesinski, objectors and appellants, appeal from an order granting the appointment of a provisional director to the board of ANNRHON, Inc., pursuant to Corporations Code section 308. On July 21, 1992, a hearing was held on the matter. On July 22, 1992, the court filed an order granting the petition and appointing Gene Deetz as the provisional director. On July 23, 1...
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Opinion The San Francisco Bay Guardian, Inc., and Bruce B. Brugmann, the Bay Guardian’s publisher (petitioners), seek a writ to require respondent court to grant their motion for summary judgment. We issue the writ for the reasons explained below. Facts In the March 27, 1991, issue of the paper, the Bay Guardian included a parody of itself lampooning various issues, public officials and pri...
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Opinion Ultramar, Inc., and South Coast Air Quality Management District (AQMD) each appeal from portions of a judgment. Therein, *696 the trial court upheld AQMD’s power to issue a regulation challenged by Ultramar, but found that AQMD had violated a provision of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.; hereafter CEQA) relating to a 30-d...
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Opinion Once again we address a question which comes before us all too frequently—the right of a litigant to a jury after failing to post fees in a timely manner. We start with an admonition from Estate of Meeker (1993) 13 Cal.App.4th 1099, 1106 [16 Cal.Rptr.2d 825]: “[W]e need to remember that all of us are here to serve the public and that this cannot be done when judges are inundated with ...
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Opinion Pierre B. Madison appeals from an order imposing a previously suspended four-year prison term after appellant’s exclusion from the California Rehabilitation Center. He contends the trial court erred in calculating his credits for time served. *786 Statement of the Case Appellant was committed to the California Rehabilitation Center (CRC) after pleading guilty to...
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Opinion This appeal presents the question whether changed circumstances trigger a ministerial duty requiring a city to review and reevaluate a previously established speed limit on its streets. The trial court ruled there is such a ministerial duty and issued a writ of mandate directing the defendant City of Sacramento (City) to conduct engineering and traffic surveys of a segment of H St...
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Opinion In dependency proceedings, an indigent parent is entitled to court-appointed counsel who “shall continue to represent the parent . . . unless relieved by the court upon the substitution of other counsel or for cause. . . (Welf. & Inst. Code, § 317, subd. (d).)1 Without reference to this statute, the Los Angeles Juvenile Dependency Court adopted a “policy memorandum” providing that attorne...
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Opinion Following trial by jury, appellant Ruben Contreras was found guilty of first degree murder with special circumstances (murder *816 during commission of robbery), attempted murder, conspiracy to commit robbery and two counts of robbery. The jury also found that Contreras personally used a deadly and dangerous weapon, a knife, in committing the offenses, and that he personally inflicted...
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Opinion Samuel D. Dakin appeals from a judgment of dismissal of a petition for writ of mandate, which challenged the approval of a timber *684 harvest plan (THP) by respondent California Department of Forestry and Fire Protection (Forestry). The trial court dismissed the petition under the authority of Public Resources Code 1 section 21167.4, for failure to request...
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Opinion In a dissolution, husband (David) claimed community interest in a corporation formed during the marriage, Gas Turbine Services Corporation (GTS), whose stock had been issued to wife (Barbara). In bifurcated proceedings the court found: (1) Barbara was the title holder to the GTS stock; 1 (2) judicial estoppel did not bar David from asserting community interest in GTS; (3) the increase...
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*802Opinion C. appeals a judgment of the juvenile court terminating her parental rights under Welfare and Institutions Code2 section 366.26 as to her minor daughter Vanessa W. Geiselle contends: (1) the court erred in finding she had not maintained frequent contact with Vanessa and continuing the relationship would not benefit Vanessa; (2) the court erred in failing to order visitation for Geisell...
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Opinion Peter and Adelia Pozzuoli (Insureds) appeal from a judgment in favor of Truck Insurance Exchange (Insurer). Insureds claim language in a “pollution exclusion” clause is ambiguous, and should be construed in *858 favor of Insureds. 1 The trial court found the language unambiguous, and granted summary judgment in favor of Insurer. We affirm. Background In December 1985, the Insure...
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Opinion Defendants Mary A. Carlson, the City Clerk of Dana Point, and the City of Dana Point appeal from a judgment ordering Carlson to certify a referendum petition to the city council that challenges the council’s passage of a resolution adopting a general plan and a local coastal program land use plan amendment (hereafter the plan). The primary issue is whether the referendum is invali...
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Opinion Statement of the Case Defendant Ignacio Miranda appeals from a judgment entered after his motion to suppress evidence (Pen. Code, § 1538.5) was denied and he pleaded guilty to possession for sale and sale of phencyclidine (PCP). (Health & Saf. Code, §§ 11378.5,11379.5.) He claims the trial court erred in *921 denying his motion to suppress evidence against hi...
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*882 Opinion I This appeal follows the trial court’s denial of an application for order of sale of a dwelling filed by plaintiffs and appellants, judgment creditors who sought to enforce judgments against defendant and appellant Nick Troy by having his residence sold. Concluding that appellants could not obtain a minimum bid under Code of Civil Procedure section 704.800, ...
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*989 Opinion Petitioner Corona-Norco Unified School District (District) filed a petition for writ of mandate against the City of Corona and its city council (collectively, City). The petition challenged the City’s approval of a zone change for a residential project on the grounds that: (1) the zone change was inconsistent with the City’s general plan (General Plan); and (2) the City had faile...
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Opinion We hold that in a paternity action under the Uniform Parentage Act, a nonattorney mother cannot represent her minor son as *962 guardian ad litem in propria persona, even though she cannot afford counsel and her son is a necessary party to the proceeding. We reach this conclusion because in California, as in other jurisdictions, absent specific statutory authorization...
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Opinion Does the implied covenant of good faith and fair dealing require a workers’ compensation insurer to defend and resolve claims with due regard to the impact of outstanding claims and reserves on the premiums *890 the insured will be assessed and on policy dividends it may receive? Alleging it had been damaged by defendant State Compensation Insurance Fund’s (SCIF) systematic failure to...
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Opinion Statement of Facts Three defendants appeal following their convictions for murder. As none of the defendants directly raises a sufficiency of the evidence claim, we will briefly summarize, in accord with the traditional rule of appellate review (People v. Johnson (1980) 26 Cal.3d 557, 562 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255]), the operative events of this murder-...
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Opinion In a consolidated information defendant, Leonard A. Allen, was charged in counts I, II, and III with possession of cocaine base *1217 for sale. (Health & Saf. Code, § 11351.5.) He was also charged with one count of possession of marijuana. Defendant’s motion to suppress was denied. Pursuant to a plea bargain, defendant entered guilty pleas to counts I and III for poss...
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*1001 Opinion I. Introduction In this case we hold that when imposing an aggravated sentence on the ground the defendant committed perjury at trial, the sentencing court is constitutionally required to make on-the-record findings as to all the elements of a perjury violation. John Emmett Howard appeals from a judgment of conviction for forcible oral copulation (Pen. Code, § 288a, subd. (c...
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Opinion Hugh Binyon (appellant) appeals the judgment of dismissal of his petition for writ of administrative mandamus (Code Civ. Proc., § 1094.5) for lack of prosecution. 1 Respondents are the State of California, the California State Personnel Board and Charles W. Walter (collectively, the State). Appellant was employed as a senior special investigator with the California...
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Opinion In this writ proceeding we clarify an issue which evidently has been causing some conftision in certain trial courts. We construe the Supreme Court’s Foley decision (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654 [765 P.2d 373]) to exempt from the statute of frauds oral employment contracts which are terminable within one year even when those contracts provide the term of em...
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Opinion The question on this appeal is whether a recorded order expunging a lis pendens affects a previously recorded abstract of judgment. We hold that it does not. Facts While living in Texas, Concepcion Steinberg guaranteed a loan made by Coronado Bank to a business she owned with her husband. Within seven months of each other, Steinberg and her husband died, leaving the loan...
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*1075 Opinion We hold in this case that an administrative subpoena duces tecum issued to obtain a third party witness’s personal records must be preceded by notice to the witness. Facts Ellen Sehlmeyer complained to the Board of Psychology of the State of California about Craig Stempf, a licensed clinical psychologist. The board initiated disciplinary action against Stempf and a hearing w...
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*1087 Opinion J. Alexander Securities, Inc., appeals from the judgment entered against it following the trial court’s denial of a motion to correct an arbitration award that included punitive damages. We affirm the judgment. Facts and Procedural History In 1980, respondent Signe Mendez, an elderly widow, opened a securities account with appellant J. Alexander Securities...
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Opinion Plaintiffs appeal from a summary judgment granted in favor of defendant, contending that defendant violated various duties it owed plaintiffs, who had taken out a construction loan from defendant. Defendant appeals from the order denying its motion for attorney fees. We affirm the judgment and reverse the order. *977 Factual and Procedural Synopsis I. Fact...
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Opinion In these consolidated appeals, plaintiffs John and Irene Yee, owners of two contiguous mobilehome parks in the City of Escondido (the City) subject to rent control, appeal the denial of their petitions for writ of mandate seeking to invalidate the City’s decision authorizing only a $27.50 increase in rents. We conclude that the decision of the Escondido Mobilehome Rental Review Board (t...
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Opinion Franklin S. Chadwick and Charlene D. Mandel (homeowners) were the insureds under a broad peril homeowners insurance policy issued by Fire Insurance Exchange (FIE). They noticed cracking in their walls, the cause of which was found to be substandard design and construction of the house’s wall and floor framing. FIE denied coverage on the grounds the policy excluded loss from “crack...
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17 Cal.App.4th 1128 (1993) 21 Cal. Rptr.2d 855 LEO R. HOUGHTALING, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; ANTHONY J. ROSSI et al., Real Parties in Interest. Docket No. E010985. Court of Appeals of California, Fourth District, Division Two. August 11, 1993. *1131 COUNSEL Leo R. Houghtaling, in pro. per., for Petitioner. No appearance for Respondent. John T. Borje f...
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Opinion The instant case is an appeal from an order denying a petition to compel arbitration of a medical malpractice claim. *1229 Plaintiff Russell Coon (respondent herein) filed a complaint in Kern County Superior Court against defendant (appellant herein) George Nicola, Jr., M.D. Appellant treated respondent on or about April 4,1990, for injuries sustained by respondent in...
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Opinion Introduction On July 7, 1993, this court issued a written order to Liang-Houh Shieh (Shieh) to show cause before this court on July 28 why we should not declare him to be a vexatious litigant as defined by Code of Civil Procedure section 391, subdivision (b)(4), and issue a prefiling order pursuant to Code, of Civil Procedure section 391.7, subdivision (a), prohibiting him fr...
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Opinion Introduction Appellant Daniel Patrick Rooney appeals from a conviction for possession of a short-barreled rifle. Appellant contends that the trial court used the wrong method to measure the rifle, and that if another method had been used, the weapon would have been over the minimum legal length. Statement of the Case By information filed on October 1, 1991, the Solano County Distr...
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Opinion H. Tim Hoffman appeals from a judgment dismissing his action against respondent J & D Painting following the court’s grant of summary judgment to respondent. In the dismissed action, appellant, who had already recovered the cost of repair for fire damage to his house, sought additional damages to compensate him for the decline in market value that his house suffered during the fiv...
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Opinion We reverse the trial court’s decision denying appellant Ronald Raygoza’s petition for a writ of mandate compelling reinstatement to his job. Background Raygoza, a Los Angeles County deputy marshal, applied for workers’ compensation on December 12, 1983, claiming injury to his psyche, as the result of a May 21, 1982, shootout. On October 24, 1986, the Workers’ Compensation Appeals Bo...
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*1252 Opinion Defendant and appellant Steven L. Edwards appeals the judgment entered following his conviction by jury of first degree burglary and two counts of grand theft. (Pen. Code, §§ 459, 460, subd. (a), 487, subd. 1.) Edwards admitted he had suffered a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a). The trial court sentenced E...
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Opinion Defendant and appellant Watson Land Company (Watson) appeals from a judgment in this eminent domain action brought by plaintiff and respondent Los Angeles County Sanitation District No. 8 (the District). Watson contends that the trial court erred in granting the District’s *1273 motions in limine excluding testimony of Watson’s expert regarding the value of...
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Opinion Orr Brown appeals his conviction by a jury of molesting a child under the age of 14 years (Pen. Code, § 288, subd. (a)). Brown contends his conviction must be reversed because the court improperly admitted evidence of prior uncharged molestations and gave incomplete instructions on the subject. We reverse. Facts The Prosecution’s Case In 1987, Brown lived with his wife, Tena, an...
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*1402Opinion In this appeal we are faced with two troubling and recurring problems, one substantive, the other procedural. The substantive problem is this: If a minor becomes a dependent under the Welfare and Institutions Code because the minor’s parent is incarcerated, what reunification services are appropriate and reasonable? The issue is important because reunification services are a major com...
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Opinion In pertinent part, subdivision (b) of Penal Code section 4532 (undesignated section references will be to this code) provides that a violent or forcible escape from county jail by a prisoner convicted of (or facing prosecution for) a felony shall be punished by a term of two, four, or six years in the state prison “to be consecutive to any other term of imprisonment, commencing from the...
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Opinion Jose Godinez appeals from judgment entered after a jury found him guilty of attempted murder and conspiracy to commit murder, and found to be true allegations that he personally used a firearm and that the crimes were committed for the benefit of, at the direction of, and in association with, a criminal street gang, under Penal Code section 186.22, subdivision (b)(2). 1 In the publi...
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Opinion Gregory Smart Hampton appeals from a judgment holding that $47,050 found in a search of Hampton’s residence is forfeited pursuant to Health and Safety Code section 11470. Facts On May 31, 1990, Hampton filed a claim asserting an interest in $47,050 that was seized in a search of his home. On June 18, 1990, the district attorney filed a petition instituting a civil action...
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Opinion East County Dodge was in the business, among other things, of selling vehicles supplied to it by Chrysler Credit Corporation (Chrysler) under a security agreement. For reasons which will be discussed, East *1308 County Dodge ostensibly deposited the proceeds from the sales of the vehicles in an account at Bank of the West to which both it and Chrysler were signatories...
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Opinion The Kaiser Foundation Health Plan, Inc., the Permanente Medical Group, Inc., and Kaiser Foundation Hospitals (hereafter Health Plan or Kaiser) appeal a judgment of the Alameda County Superior Court requiring extensive changes in the third party liability provision in service agreements with members. The theories alleged in the original complaint, filed by the plaintiff, Arthur Bra...
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*1374 Opinion I Statement of the Case Following a jury trial, defendant Cruz Magana was found guilty of one count of first degree murder and two counts of attempted murder. The jury found true several enhancement allegations, including the allegations that as to the attempted murder counts, defendant personally inflicted great bodily injury upon the two victims. (Pen. Code, § 12022.7.) Se...
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*1360 Opinion The underlying action was brought by plaintiff Diane Barton against defendant and respondent Ahmanson Developments, Inc., and others for breach of contract. Appellant Vin A. Fichter, an attorney, formerly represented Barton in the lawsuit. During the time appellant was counsel of record, the trial court imposed a $2,850 sanction against Barton and appella...
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Opinion In October 1984 defendant General Dynamics (GD) terminated plaintiff Randall Holmes, a 13-year management employee. Finding GD fired Holmes in violation of public policy by retaliating against him for disclosing to management the company’s violation of the false statements act (18 U.S.C. § 1001), 1 a jury determined Holmes was entitled to $106,000 for lost wages and be...
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Opinion Pursuant to a plea bargain, appellant was convicted of rape (Pen. Code, § 261, subd. (a)(2)) and sentenced to eight years in prison. In a previous appeal (F015491) appellant contended the trial court failed to provide a hearing when appellant requested new counsel. (See People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44].) This court agreed,...
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Opinion Jose Oscar Esqueda was jury-convicted of second degree murder (Pen. Code, 1 § 187, subd. (a)) by use of a firearm (§ 12022.5) for the death of Ana Castillo and of possessing a firearm silencer (§ 12520). The trial court sentenced him to a total 23 years to life term and imposed restitution fines under Government Code section 13967 for $5,000 and $1,000 for each crime, respectively. ...
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Opinion In this appeal from a judgment granting a permanent injunction imposing time, place and manner restrictions on the activities of antiabortion demonstrators at plaintiff’s Sacramento clinic, and from an order awarding attorney fees to plaintiff pursuant to Code of Civil Procedure section 1021.5, we reject defendants’ various challenges to the propriety and scope of the injunction. As we sha...
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Opinion On February 9, 1991, James Cleveland (decedent) died intestate. This appeal concerns whether appellant Andre Cleveland is entitled to a share of decedent’s estate. Appellant filed two petitions in probate court which sought to order respondent Annette May Thomas, trustee of the James Cleveland Trust, to convey certain real and personal property to the personal representative of de...
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Opinion Plaintiff Brad C. Westlye fell while snow skiing and was injured, allegedly due to defective ski equipment rented from defendant Klein’s Ski Shop (Klein’s) and distributed by defendants Look Sports, Inc., Look U.S.A., Inc., and Nórdica U.S.A., Inc. (the distributor defendants). 1 Plaintiff filed suit alleging claims of strict products liability, negligence, breach of wa...
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Opinion This is an appeal from a discretionary dismissal of an attorney malpractice action under Code of Civil Procedure sections 583.410 and 583.420, subdivision (a)(1), for failure to make service of summons on the defendant within two years after the action was commenced. 1 Plaintiff Jack Scarzella contends that the trial court abused its discretion in granting the motion fo...
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Opinion I. Introduction Insurance claims arising out of leaking underground storage tanks raise the question of who will pay for the cleanup of millions of tons of toxic waste produced in the United States since World War II. This problem has sparked a legal war that has raged in both federal and state courts from Maine to California. (See Northern Ins. Co. v. Aardva...
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Opinion Statement of the Case and Pertinent Facts On May 21, 1992, Delano police officers seized several items of property in connection with an arrest for sale of cocaine. Seized were $400 and $42 in United States currency, $8,445.56 cash from a Bank of America account, and a 1990 Acura two-door sedan, vehicle identification No. JH4DA9460LS010441. On May 27, 1992, apparently af...
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Opinion Plaintiff Laura Malick (appellant) appeals from a judgment that dismissed her petition for a writ of mandate to command the Department of Transportation; James W. van Loben Seis, Director; and Preston Kelley, Director, District #4 (respondents), to cease building sound walls on Scenic Highway Interstate 680 and to remove those already installed. A demurrer to the petition had been susta...
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Opinion In an earlier proceeding, defendant pled guilty to assault with a deadly weapon and admitted inflicting great bodily injury in the commission of that offense. (Pen. Code, §§ 245, subd. (a)(1), 12022.7.) The sentencing court in that prior case then struck the great bodily injury enhancement. The issue in this appeal is whether that striking prevented the trial court in this subsequent ca...
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Opinion A jury convicted defendant of first degree murder prosecuted solely on a felony-murder theory and, further, found true the special circumstance allegation that defendant committed the murder while engaged in the commission or attempted commission of a robbery within the meaning of Penal Code section 190.2, subdivision (a)(17). Thereafter the trial court sentenced defendant to state pris...
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Opinion Plaintiff Gai Thompson (owner) sued the defendant City of Lake Elsinore (the City), the building department, the city *52 council, and other individuals (all defendants referred to collectively as defendants), for damages allegedly resulting from the City’s failure to issue a building permit and its failure to issue a certificate of occupancy for owner’s renovated building after the f...
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17 Cal.App.4th 1841 (1993) 22 Cal. Rptr.2d 220 DONNA E. MARSHALL et al., Plaintiffs and Appellants, v. LINDA S. McMAHON, as Director, etc., et al., Defendants and Respondents. Docket No. D015184. Court of Appeals of California, Fourth District, Division One. August 25, 1993. *1843 COUNSEL Charles Wolfinger for Plaintiffs and Appellants. Marilyn Holle and Sande Pond as Amici Curiae on behalf of Pl...
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Opinion Plaintiff transportation firm appeals from a defense judgment in an action for termination of a contract for vacuum truck services. 1 *6 Statement of the Case On January 31, 1991, plaintiff filed a complaint for breach of written contract, naming Shell Western E&P, Inc., and 50 Does as defendants and praying for compensatory damages according to proof. D...
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Opinion This matter is before us on the State of California’s (hereafter the State) petition for writ of mandate and/or prohibition after *34 respondent superior court denied the State’s motion for summary judgment. Real party in interest Wilson has sued the State for failing to suspend or revoke the driver’s license of a diabetic person who ran head-on into the car driven by Wilson. We con...
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Opinion Appellant, Roy Hardison (hereafter appellant), injured in an automobile accident, appeals from a defense verdict. He contends the verdict is not supported by the evidence. We reverse. *25 Facts and Procedural History On January 29, 1986, appellant was the middle passenger in a pickup truck driven by Danny Ray Smith. The truck was traveling north on Old River Roa...
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Opinion This action arose from a dispute among several water districts, all members of Kern County Water Agency (KCWA), over how certain costs charged to KCWA by the State of California Department of Water Resources (State) should be allocated among the member districts. Following a month-long nonjury trial, the court below issued a declaratory judgment generally favorable to two member d...
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*422 Opinion The Department of Motor Vehicles (DMV) appeals from a judgment granting a writ of mandate (Code Civ. Proc., § 1094.5) directing it to set aside an order suspending Charles Ray Mosier’s driving privilege. Mosier’s license was suspended under Vehicle Code section 13353.2, subdivision (a), 1 after he was arrested for driving with a blood-alcohol level of .08 ...
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Opinion I. Introduction This case presents the question whether a third party defendant which, pursuant to Witt v. Jackson (1961) 57 Cal.2d 57, 72 [17 Cal.Rptr. 369, 366 P.2d 641], seeks to reduce any judgment against it by the amount of workers’ compensation benefits paid to an injured employee, may compel the employer’s participation as a cross-defendant in th...
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Opinion In this action alleging breach of contract, fraud, misrepresentation, and negligence in the sale of residential real property, plaintiffs/buyers Jess Brasier, Deborah Brasier, J. Raymond Brasier and Christine Hansen appeal on the judgment roll from a judgment following court trial in favor of defendant/seller Melvin E. Sparks. 1 Plaintiffs contend (1) the trial court erred in finding ...
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Opinion Donald R. Johnston appeals a judgment annulling his marriage to Brenda Johnston. I After a 20-month marriage, Brenda sought to have her marriage to Donald annulled. (Civ. Code, § 4425, subd. (d).) Donald agreed the marriage should be terminated but requested a judgment of dissolution be entered. At the trial, Brenda testified she was unaware of Donald’s severe drinking problem unt...
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Opinion Penal Code section 1534 1 requires that a search warrant be executed “within 10 days after date of issuance.” In this case of first *442 impression in California, we must decide how that 10-day period is to be computed. I. Facts At 11 a.m. on July 15, 1992, a magistrate signed a warrant authorizing the search of 4719 Melrose Avenue in Oakland. Pol...
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*430 Opinion In Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1 [10 Cal.Rptr.2d 183, 832 P.2d 899], the California Supreme Court stated in no uncertain terms that, with limited exceptions, an arbitrator’s decision is not reviewable for errors of fact or law. Purporting to apply two statutory exceptions, the superior court here has vacated an arbitration award beca...
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Opinion Michael Alan Sousa appeals from a judgment entered upon his plea of no contest to a charge of cultivation of marijuana (Health & Saf. Code, § 11358). He contends that the warrant issued for search of his residence was illegal because it was not based on an affidavit setting forth probable cause, and that the trial court therefore erred in denying his motion to suppress pursuant to...
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Opinion Fortino Perez Covarrubias appeals from the judgment (order granting probation) entered after he was convicted in a court trial of possessing cocaine. (Health & Saf. Code, § 11350, subd. (a).) He unsuccessfiilly contends: “The court erred in denying appellant participation in the diversion program.” Ventura Police Officer Raymond Harer, Jr., saw a vehicle driven by appellant. ...
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Opinion Plaintiff Gary G. Kelecheva timely appeals from a judgment of dismissal entered in favor of defendant Multivision Cable T.V. Corp. on *525 motion for summary judgment. The superior court ruled that each of the three causes of action alleged in plaintiff’s wrongful termination complaint was within the exclusive jurisdiction of the National Labor Relations Board (NLRB) ...
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*682 Opinion David A. Vaillette appeals from a judgment of dismissal of his breach of contract/bad faith/fraud action against Fireman’s Fund Insurance Company (Fireman’s Fund). The case was dismissed after the court sustained the insurer’s demurrer to Vaillette’s second amended complaint without leave to amend. The appeal presents the following issue: When an insurer pays a ...
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*696 Opinion Statement of the Case and the Facts Defendant was convicted by jury of two counts of first degree murder. The jury found true the special circumstance of multiple murder. Defendant was also convicted of residential burglary. In addition, a firearm-use enhancement (Pen. Code, § 12022.5) was found true for each count. Defendant admitted the on-bail enhancement. (Pen. Code, § 1202...
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Opinion Mark A. Wilton appeals from a judgment of dismissal after the demurrer of respondent Mountain Wood Homeowners Association, Inc., to his cross-complaint for slander of title was sustained without leave to amend. The trial court ruled that the publication of respondent’s liens on appellant’s property was protected by the litigation privilege under Civil Code section 47, subdivision ...
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Opinion Introduction Donald Wesley Plyler was convicted after jury trial of three counts of committing a lewd and lascivious act upon a child by force or duress (Pen. Code, § 288, subd. (b)). 1 He was acquitted of one count of rape with a foreign object by force. The trial court reduced the offenses to violations of section 288, subdivision (a) (lewd and lascivious act upo...
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Opinion Plaintiff Stephen J. Caro appeals an order denying his motion for class certification of his lawsuit against defendants The Procter & Gamble Company (P&G), N.W. Ayer, Inc. (Ayer), and The Vons Companies, Inc. (Vons). Caro contends in denying class certification the superior court applied improper legal criteria, impermissibly weighed the lawsuit’s merits, and made unsupported find...
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Opinion Petitioners Ada Solorzano, America Rodriguez and Dolores Morales (plaintiffs) filed suit against defendant and respondent Family Health Plan (FHP) alleging, inter alia, FHP engaged in unfair business practices and misleading advertising in the solicitation of subscribers to its senior plan. Plaintiffs brought suit on these theories in their individual capacities and on behalf of t...
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Opinion The petitioner, County of Los Angeles (herein the County), seeks extraordinary writ relief to compel the trial court to vacate its order requiring the County to generate and disclose to the real party in interest, J. Ara Kusar (herein Kusar), certain recorded information regarding every person arrested (for certain particular offenses) by two specifically named deputy sheriffs ove...
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Opinion Ronald B. appeals from an order of the juvenile court declaring his minor children Kailee and Nicolas, aged two and one-half and one and one-half, respectively, to be dependents of the court under Welfare and Institutions Code section 300. He contends: “I. The court erred by refusing to strike the minor’s hearsay statements contained within the written social study report where the court l...
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*465 Opinion Penal Code section 872, subdivision (b), enacted as part of the “Crime Victims Justice Reform Act” (Proposition 115) in 1990, permits hearsay testimony at a preliminary hearing by a “law enforcement officer.” 1 At issue in this case is whether an investigator for the Franchise Tax Board qualifies as a “law enforcement officer” for purposes of section 872, ...
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Opinion Penal Code 1 section 1054.3 requires defense counsel to disclose to the prosecuting attorney the names of expert witnesses who are to *675 be called to testify at trial, and further requires the production of reports or statements prepared by the experts in connection with the case. This petition raises the question whether a trial judge, when convinced that a defense attorney plans...
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Opinion In this action for breach of an employment contract, a jury awarded a verdict of $81,401.70 for the employee, plaintiff and respondent Kenneth Evan Chyten, against defendants and appellants Lawrence & Howell Investments, a partnership, and its partners Arthur G. Lawrence and Lorraine Howell. Appellants appeal from the judgment entered on the verdict following denial of their motio...
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*736 Opinion Defendants and appellants Board of Harbor Commissioners of the City of Long Beach and the City of Long Beach, a municipal corporation (jointly referred to as the Board), appeal from a judgment of the ' trial court ordering that a writ of mandate issue commanding the Board, due to noncompliance with the California Environmental Quality Act (CEQA), to: (1) vacate its c...
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Opinion This consolidated appeal concerns the denial of two motions to compel arbitration made in the same case. We hold that the plaintiffs’ allegations of fraud are sufficient to support the denial of the motions, and that the denial does not conflict with Prima Paint v. Flood & Conklin (1967) 388 U.S. 395 [18 L.Ed.2d 1270, 87 S.Ct. 1801], Facts Robert an...
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*784 Opinion Appellants Richard and Debbie Frazer (appellants) timely appeal from the denial of their petition for a writ of mandate and for declaratory relief against respondents Dixon Unified School District and its governing board (Board) and superintendent, J. Gerry Laird (Superintendent) (collectively, hereafter respondents or the District), which was originally filed in Solano Superior ...
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Opinion Petitioner Seibert Security Services, Inc. (hereinafter Seibert), a defendant in the action below, seeks reversal of an order denying its motion for summary judgment and/or adjudication of issues. (Code Civ. Proc., § 437c.) Seibert’s contention is that it established, as a matter of law, a complete defense in that plaintiff and real party in interest John Migailo’s action is barred by the...
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Opinion We modify conditions of probation to strike the restitution order, and affirm the judgment as modified. Background Defendant pled guilty to embezzlement from her employer, a small preschool/kindergarten, owned by two partners, Bea Elliott and Linda Huss. At a hearing to determine restitution, the amount of the loss was set at over $47,000. Defendant’s father, giving her an advance o...
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Opinion Kathy Rine (wife) appeals from a post judgment order modifying child support and awarding attorney fees. On appeal, she contends the trial court abused its discretion in reducing the support obligation of the child’s father, Lance Rine (husband), and in ordering inadequate attorney fees. Wife also claims the court erred in failing to set forth the mandatory *955 findi...
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Opinion An attorney was sued for allowing the statute of limitations to expire on his client’s medical malpractice claim. A jury found the attorney liable for malpractice, and assessed damages for negligent infliction of emotional distress against him as well. On appeal, the attorney contends that the suit against him is barred by the statute of limitations. We conclude that the action was ti...
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18 Cal.App.4th 856 (1993) 22 Cal. Rptr.2d 659 WILBUR F. LITTLEFIELD, as Public Defender, etc., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; EDDIE CLYDE JACKSON, Real Party in Interest. Docket No. B075503. Court of Appeals of California, Second District, Division Four. September 7, 1993. *857 COUNSEL Wilbur F. Littlefield, Public Defender, Karen Gee and John Hamilton Scott,...
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Opinion Nielsen Construction Company (Nielsen), a general contractor on a construction project, appeals a judgment of dismissal following the sustaining of a demurrer on its action claiming a subcontractor, International Iron Products (International), was contractually obligated to defend and to indemnify Nielsen from damages and injuries suffered by an International employee on the const...
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Opinion I. Introduction This is an appeal from the dismissal of three consolidated medical malpractice actions brought by parents, individually, and on behalf of their minor daughter, alleging damages for negligence and for wrongful life arising from the birth of a child with neural tube defects, commonly known *873 as spina bifida. 1 Plaintiffs and appellants Raksha and Naran Gami (the G...
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Opinion Cynthia Laughner appeals from an order of dismissal following the trial court’s sustaining of a demurrer without leave to amend to the second cause of action of the complaint for personal injuries filed by her on behalf of her minor son and herself August 27, 1990. She contends that the trial court erred in ruling that she, as a parent, could not state a separate and distinct cause of a...
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Opinion Defendant Ferdinand Gustave Schaefer appeals from the judgment entered on his negotiated guilty plea to six counts of robbery and his admission that the Penal Code section 12022.5, subdivision (a) enhancement as to each count and the three Penal Code section 667, subdivision (a) prior felony convictions were true. Schaefer’s sole contention is that he is similarly situated to the defend...
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Opinion The Regents of the University of California (Regents) appeal from an order of the probate court which rejected their claim to the remainder of a testamentary trust. We will reverse. We will *940 apply the common law preference for early vesting and hold that, absent evidence of the testator’s intent to the contrary, the identity of “heirs” entitled to trust assets mus...
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18 Cal.App.4th 981 (1993) 22 Cal. Rptr.2d 852 CHARLES WASHINGTON et al., Plaintiffs and Appellants, v. BOARD OF SUPERVISORS OF SAN DIEGO COUNTY et al., Defendants and Respondents. Docket No. D017859. Court of Appeals of California, Fourth District, Division One. September 13, 1993. *982 COUNSEL Rosemary Bishop, Carol Ratsamy Bracy, Anson B. Levitan, Gregory E. Knoll, Robert D. Newman and Richard ...
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Opinion This case involves a challenge to the constitutionality of portions of Water Code section 13396.5 1 and of the implementing regulation (Cal. Code Regs., tit. 23, § 2236, hereafter regulation 2236) enacted by respondent State Water Resources Control Board (the Board). Appellants—two water agencies (Central Delta Water Agency and South Delta Water Agency, hereafter the ag...
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Opinion Appellant challenges his conviction for traveling at an unsafe speed, in violation of Vehicle Code section 22350.1 Appellant was stopped on June 15, 1992, for traveling at approximately 49 miles per hour on Laurel Canyon Boulevard on his bicycle. Appellant first contends on appeal that he was wrongly cited and convicted for violating section 22350, because that section does not apply to bi...
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Opinion The law firm of Lasky, Haas, Cohler & Munter (appellant) appeals from an order imposing monetary sanctions against it in connection with its representation of Aerojet-General Corporation and Cordova Chemical Company (collectively, Aerojet or plaintiffs) in the underlying action. The sanction order is based on the conduct of Scott DeVries, an attorney who at all times relevant to t...
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*1011 Opinion I. Introduction In this case we hold that the provisions of nine San Jose redevelopment plans do not prohibit indebtedness extending beyond the plans’ expiration dates, and thus the projects may be financed with bonds which mature after those expiration dates. The County of Santa Clara (County) and the Santa Clara Unified School District (District) filed s...
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*922 Opinion Plaintiff and petitioner Teogenes Rodriguez Palay, a minor, by and through his mother Inocente Palay, as guardian ad litem, and petitioner Inocente Palay, individually, seek a writ of mandate to compel respondent superior court to vacate an order made during the course of discovery requiring production of Inocente Palay’s medical records relating to prenatal care at ...
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Opinion A jury convicted appellant of kidnapping (Pen. Code, 1 § 207; count I; victim Melynda Moncrief), two counts of assault with a firearm (§ 245, subd. (a)(2); count II, victim Melisa Moncrief; count III, victim Penne Moncrief) and found true three firearm use (§ 12022.5) allegations. Three state prison prior felony allegations (§ 667.5) were bifurcated and admitted. Appell...
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Opinion Upon revocation of appellant’s probation, he was sentenced to the middle term of three years for aggravated assault (Pen. Code, § 245, subd. (a)(1)).1 He was awarded 217 days of presentence custody credits and 108 days of conduct credits. On appeal, he challenges only the award of credits. First, he contends that the trial court miscalculated his presentence custody credits, due primarily ...
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Opinion Defendant and appellant Donald Lernard Proctor appeals from a judgment after a jury trial in which he was convicted of conspiracy to defraud another of property by theft (Pen. Code, § 182, subd. (a)(4)), a felony. He contends the confidence scheme for which he was convicted, the so-called “Jamaican Switch,” should have been charged under the special statute criminalizing confidenc...
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Opinion I. Babak S., a minor, appeals from an order committing him to the California Youth Authority after the juvenile court sustained a petition filed pursuant to Welfare and Institutions Code 1 section 777, alleging that the minor had violated the conditions of his probation by living in the United States with his parents, and by associating with a known probationer or gang member. On ap...
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18 Cal.App.4th 1092 (1993) 23 Cal. Rptr.2d 170 In re ANDRES M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ANDRES M., Defendant and Appellant. Docket No. D016868. Court of Appeals of California, Fourth District, Division One. September 17, 1993. *1094 COUNSEL Howard C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel ...
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Opinion Defendant entered a plea of guilty to a charge of burglary (Pen. Code, § 459), in return for a promise to strike two 5-year enhancement allegations charged under Penal Code section 667. 1 It was also agreed that he would receive the upper term of six years, but that it would run concurrently with a four-year sentence recently imposed in a separate case, with full credits. On this ap...
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Opinion The County of Lake (County) appeals from a child support order that set respondent Gerald Anthony Antoni’s support payment obligation at less than file presumptive amount under Civil Code section 4721. 1 The County contends that the trial court erred by the way in which it considered Antoni’s support of his stepdaughter and his substantial consumer debt monthly payments...
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Opinion A jury found that the City of Oakland, its fire chief, and its city manager (collectively appellants) had wrongly refused to grant merit promotions to John J. Lucich, Jr., James R. Catalano, and Bob B. Means II (respondent firefighters). The jury awarded the three respondent firefighters a total of $650,000 in backpay and other damages. Appellants contend the judgment must be reve...
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Opinion In this workers’ compensation proceeding, we granted the applicant’s petition for a writ of review to decide the question *1182 whether California Labor Code section 3208.3, subdivision (d), as applied to petitioner, violates her constitutional rights to equal protection of the law and due process. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a).) 1 Labor Code secti...
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Opinion This is an appeal from a summary judgment in favor of the defendant in a personal injury lawsuit. The facts of the case are not in dispute, and we state them as reflected in the moving papers in the summary judgment motion, and as set forth in the appellate briefs of both appellant and respondent. The issue is whether the negligent failure of defendant, Lisa Loo (Loo), to war...
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Opinion Kong L. appeals from the order terminating her parental rights (Welf. & Inst. Code, § 366.26) as to her daughter Tracy X. She claims the trial court improperly excluded evidence on whether the department of *1462social services (DSS or the department) complied with Civil Code1 section 222.35 et seq. regarding racial and ethnic placement preferences in adoption matters. Upon review, it app...
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*1471 Opinion In the published portion of this opinion we hold that the trial court properly admitted a California Law Enforcement Telecommunications System (CLETS) computer printout of appellant’s criminal information history (rap sheet) under the official records exception to the hearsay rule (Evid. Code, § 1280) as evidence that appellant served two prior prison terms for which his sentenc...
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Opinion This appeal by Robert and Audrey Parks (appellants) is from judgment in an eminent domain proceeding initiated by the Glendale Redevelopment Agency (Agency). The court below denied appellants’ motion for litigation costs, for interest on a deposit of funds made prior to possession and their challenge to the constitutionality of Code of Civil Procedure section 1268.350, setting the...
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Opinion In this case we are asked to interpret recent amendments to the Subdivision Map Act. (Gov. Code, § 66410 et seq.) 1 In 1985 the Legislature amended section 66452.6, subdivision (a) to grant automatic 36-month extensions to file final maps provided a developer, who is required as a condition of approval of a tentative map to spend large sums of money on off site improvem...
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Opinion The People appeal from an order of the superior court denying their motion to reinstate a criminal complaint against defendants Raymond Howard and Tina Rose. (Pen. Code, §§ 871.5, 1238, subd. (a)(9).) The principal question on appeal is whether an officer who has complied with Penal Code section 1531 (§ 1531) before entering a house to execute a search warrant must again observe t...
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Opinion This action is against operators of a skilled nursing facility, seeking damages for elder abuse. It alleges conduct occurring after the Legislature defined elder abuse and made it a crime under some circumstances, but before it amended the statutes to provide attorney fees for persons bringing civil actions and to allow heirs to recover damages for the pain and suffering of deceas...
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Opinion In this case we consider whether former employees of East Bay Municipal Utility District (EBMUD) who are participants in EBMUD Employees’ Retirement System (Retirement System) may file an action for breach of fiduciary duty and denial of equal protection against EBMUD, the Retirement System and EBMUD Retirement Board (Retirement Board) without first filing a claim pursuant to the ...
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*1538 Opinion In this action by a secured lender against a real estate appraiser for professional negligence, the trial court granted summary judgment in favor of the defendant (Code Civ. Proc., § 437c, subd. (c)) on the ground the plaintiff’s action is barred by the two-year statute of limitations. (Code Civ. Proc., § 339, subd. 1.) There is no dispute as to the underlying ...
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Opinion California Real Estate Loans, Inc. (CREL), a California corporation, appeals from a judgment denying a petition for writ of mandate, in which it challenged the revocation of its real estate broker’s license by the Real Estate Commissioner (the Commissioner). The revocation was based on a determination by the Commissioner that a civil judgment had been entered against CREL based on...
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Opinion Patrick J. Barkley appeals after the superior court dismissed two separate actions to collect a money judgment against the City of Blue Lake (the City) on the ground that both actions were barred by the 10-year limitations period for enforcing a monetary judgment against a local public entity. (Gov. Code, §§ 970.1, subd. (a), 970, subd. (b).) We affirm the judgment dismissing Bark...
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Opinion Appellant Mercury Casualty Company issued an auto policy which covered a Renault automobile. The policy stated that it did not provide liability coverage for bodily injury sustained by an insured. The policy defined insureds to include permissive users of an owned automobile and resident relatives of permissive users, including those related by marriage. Cross-appellant Anthony Ch...
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Opinion This case is a dispute between two health care service plans over which must pay for emergency medical services rendered to a patient who was covered under both plans. Kaiser Foundation Health Plan, Inc., paid for the services and sued Lifeguard, Inc., for reimbursement. The trial court found that Kaiser was responsible for all of the costs in question and entered judgment for Lif...
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Opinion Daniel Gene Calvert appeals his convictions of manufacturing, possessing for sale and transporting methamphetamine (Health & Saf. Code, §§ 11379.6, subd. (a), 11379, 11378) and convictions of conspiracy to manufacture, transport and possess methamphetamine for sale (Health & Saf. Code, §§ 11379.6, (subd. (a), 11379, 11378, Pen. Code, § 182, subd. (a)(1)). The court additionally fo...
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Opinion Clinton Roe appeals a custody order permitting his former wife, Laurie Keiko Cooper (Keiko), to remove their son, M., from the state. We review the evidence in the light most favorable to the order. (In re Marriage of Carlson (1991) 229 Cal.App.3d 1330, 1337 [280 Cal.Rptr. 840].) The parties separated in January 1988, when M. was four years old. Keiko took M. and moved into a house owned b...
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Opinion In eminent domain cases, the “date of valuation” generally precedes the date of trial at which the value of the property is *1810 determined. The question here is whether a jury, in determining the amount of compensation due the property owner, is required to consider facts discovered during this lag which tend to reduce the property’s fair market value. We conclude t...
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Opinion Television station KUSI owned by defendant McKinnon Broadcasting Co. (KUSI) employed plaintiff John Ellis as an advertising salesman. Ellis’s written employment contract contained a forfeiture provision which purported to deny him commissions on advertising he sold if the station had not received payment for the advertising before Ellis terminated his employment. After Ellis succe...
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19 Cal.App.4th 1215 (1993) 23 Cal. Rptr.2d 243 McMILLIN SCRIPPS NORTH PARTNERSHIP, Plaintiff and Appellant, v. ROYAL INSURANCE COMPANY OF AMERICA, Defendant and Respondent. Docket No. D014527. Court of Appeals of California, Fourth District, Division One. September 30, 1993. *1218 COUNSEL Jennings, Engstrand & Henrickson, Gerald Smolin, Jr., Karen M. Stuckey, Sobel & Custer, Janet E. Sobe...
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*4 Opinion In this medical malpractice action involving a foreign object left in plaintiff’s right hip following surgery, plaintiff appeals from a judgment in favor of the surgeon, William A. Elliot, M.D. Plaintiff claims the trial court erred prejudicially when it foreclosed the jurors from using their common knowledge in evaluating the question of negligence. We agree and reverse the judgme...
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Opinion I One of the recurrent problems revolving around capital punishment is whether certain benefits or liabilities extend to defendants who are charged with “capital” crimes but who nevertheless do not actually face the death penalty. 1 For example, the right to bail may depend on a defendant’s not having been charged with a “capital crime,” while the right ...
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Opinion In the published portion of this opinion, we address an apparent conflict between Penal Code section 1170.1 and Health and Safety Code section 11353.1. We conclude that the limitations on consecutive sentencing which appear in Penal Code section 1170.1, subdivision (a), do not prohibit the imposition of a mandatory Health and Safety Code section *1842 11353.1 enhancem...
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Opinion I The trajectory of the case law now governing malicious prosecution claims arising out of family law proceedings arcs toward one destination: a bright line barring any such claims, no matter how egregious the defendant’s conduct in the family law action. The present case (at least as pled) is egregious indeed, and forces us to ponder whether the arc should be completed. After the trial c...
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Opinion The City of Glendale (City) seeks a writ of mandate directing the trial court to vacate its order finding that the City had breached a long term lease of City-owned property to the real party in interest, Giovanetto Enterprises, Inc. (GEI), by exercising its power of eminent domain prior to the end of the term. *1773 As we conclude that the condemnation of a leasehol...
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Opinion After his motion to suppress evidence was denied, appellant Manuel Gorrostieta pleaded guilty to one count of transporting cocaine (Health & Saf. Code, § 11352, subd. (a)) and one count of possession, for sale, of heroin (Health & Saf. Code, § 11351). He also admitted various enhancement allegations, and was sentenced to a prison term of eight years, consisting of four years for t...
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*88 Opinion The sole issue presented in this appeal is the constitutionality of Penal Code 1 section 288.5, which created the crime of “continuous sexual abuse of a child.” A jury convicted Kevin Gear of one count of section 288.5. The jury also found true an allegation that Gear occupied a position of special trust to the victim within the meaning of section 1203.066, subdivision (a)(9)....
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Opinion 1. Introduction We determine below a question of first impression: What is the proper venue for an action based on the negligent design and construction of a building? Petitioners Foundation Engineers, Inc., and The Twining Laboratories, Inc., seek a statutory writ of mandate following denial of a motion to change venue to the county where the buildings are locat...
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*117 Opinion Subdivision (a)(2) of section 340.6 of the Code of Civil Procedure 1 provides that the statute of limitations for legal malpractice is tolled during the period that the attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged malpractice occurred. In this case we hold this statutory tolling period is unaffect...
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Opinion In these consolidated appeals, plaintiff and appellant Blue Cross of California appeals a judgment confirming a private arbitration award in favor of defendants and respondents Grant and Laurie Jones in a dispute over health care benefits. Appellant contends the arbitrators acted in excess of their powers in reaching a “completely irrational” result. Facts In April 1985 ...
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*192Opinion After a contested five-day hearing, the juvenile court declined to take jurisdiction over Sheila B. It therefore ordered the petition alleging Sheila came within the jurisdiction of the juvenile court dismissed. Is this order appealable? We conclude it is. On the merits, we also conclude the juvenile court did not err in failing to assume jurisdiction over Sheila. Since we also conclud...
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Opinion This appeal is from judgments in favor of defendants in two lawsuits consolidated for trial. In action No. 96878 plaintiffs are a general partnership, a joint venture and a corporation. It relates to a parcel of real property, 11.45 acres in size, located in the City of Thousand Oaks. *246 Defendants are the Conejo Valley Unified School District (hereinafter the District), its gover...
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Opinion Introduction Michael Bello and M.B. Contractors, Inc. (Bello) appeal from a judgment confirming an arbitration award (Code Civ. Proc., § 1294) 1 in favor of Grubb & Ellis Company (Grubb). We affirm. Facts Bello entered into exclusive listing agreements with Grubb, a real estate broker, to sell real property located at 1041 and 1047 West Gladstone in San D...
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Opinion MaryBeth Smith had a brief sexual encounter with her therapist which destroyed her marriage to Cain Smith. The offended husband sued the therapist and the therapist’s employer. California abolished the torts of alienation of affection and criminal conversation (a euphemism for a third party’s sexual intercourse with an adulterous spouse) 1 more than 50 years ago, so the...
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Opinion Christopher P., a minor, through his guardian ad litem (appellant), appeals from an order denying his petition, pursuant to Government *168 Code section 946.6, 1 for relief from the claim filing statutes. The issue presented is whether Mojave Unified School District (District) is estopped from relying on Christopher’s noncompliance with the claims statutes because its employee’s adm...
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Opinion Here we decide whether parents are liable in tort because their adult son negligently shot a cousin with his own firearm. The victim, David Todd, appeals from a summary judgment entered in favor of respondents, David Dow and Carol Dow (parents). The issue presented is whether parents breached a duty of care by not controlling their son’s use of a firearm. We affirm the grant of su...
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Opinion This is anappeal by Hawthorne Savings and Loan Association (Hawthorne) from a judgment denying a peremptory writ of mandate *153 under section 1094.5 of the Code of Civil Procedure and thereby affirming the City of Signal Hill’s order requiring demolition of substandard residential buildings belonging to Hawthorne. We issued an order staying demolition of the building...
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This appeal is by Ranger Insurance Company (Ranger) from an order denying its motions to discharge the *355 forfeiture of two bail bonds which Ranger had posted on Andrea Gonzales and James Martinez, defendants in a criminal case. 1 On November 1, 1990, Andrea Gonzales, James Martinez and Fernando Valencia were charged in a criminal complaint with a violation of Health and Safety Code secti...
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Opinion The plaintiff and appellant, Jeffrey A. Rochlis (Rochlis) appeals from a summary judgment entered against him on his four-count first amended complaint. He had sued the defendants and respondents, The Walt Disney Company (Disney), Walt Disney Imagineering (WDI) and Martin A. Sklar (Sklar) (collectively, the defendants) for damages arising out of his employment by Disney and WDI an...
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Opinion John Fraker appeals the trial court’s granting of respondent Sentry Life Insurance Company’s motion for summary judgment on count one of his complaint and the court’s granting of respondent’s motion for judgment on the pleadings on appellant’s amended second count. Count one of appellant’s original complaint sought declaratory relief that he was entitled to insurance payments from...
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Opinion Statement of the Case Petitioner, Newhall Land and Farming Company (Newhall), seeks review of an order sustaining a demurrer without leave to amend to three of its causes of action against real parties in interest, Amerada Hess Corporation and Amerada Petroleum Corporation (collectively Amerada) and Mobil Oil Corporation (sued as Socony Mobil Company) and Mobil Exploration an...
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*312 Opinion Introduction In 1988, the Director of Health Services, Kenneth W. Kizer, M.D., M.P.H., (Director), initiated an action against Hillhaven Convalescent Hospital (Hillhaven) pursuant to the Long-Term Care Health, Safety and Security Act of 1973, codified in Health and Safety Code section 1417 et seq. The Director issued Hillhaven a class “AA” 1 citation ...
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Opinion Plaintiff and appellant August W. Bennett appeals a summary judgment in favor of defendants and respondents John McCall, Jr., and Riede, Rosenberg, McCall & Cahill in appellant’s action for legal malpractice. Appellant contends the trial court erred in ruling his action was barred by the statute of limitations. (Code Civ. Proc., § 340.6.) 1 We affirm. Facts In...
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Opinion Appellant challenges the judgment rendered against her in an unlawful detainer proceeding. *Supp. 6The main thrust of appellant’s appeal is that the evidence does not support the conclusion that appellant was guilty of unlawful detainer on the date the complaint was filed because the complaint was filed prematurely. Appellant’s contention in this regard is meritorious and requires a rever...
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*419 Opinion Appellant Dean Julius Adams was convicted of multiple counts of sexual assault with various enhancements. He was sentenced to a term of 59 years in state prison. He raises four issues on appeal: (1) the conviction was based on partially false testimony; (2) the provision of Penal Code section 868.5 for “support persons” for sexual assault victims is unconstitutional; 1 (3) the ...
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Opinion Appellant Adrian Little was charged by information with possession of cocaine base for sale within 1,000 feet of a school while personally armed with a firearm (Health & Saf. Code, §§ 11351.5, 11353.6, *451 subd. (b); Pen. Code, § 12022, subd. (c) 1 —count 1), and the following misdemeanors: giving a false name to a peace officer (§ 148.9—count 2), conceali...
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Opinion I. Introduction Defendant appeals his convictions for two counts of first degree burglary (Pen. Code, § 459)1 plus one finding that he had previously experienced a serious felony conviction (§ 667, subd. (a)) and two findings he had served prior prison terms. (§ 667.5, subd. (b).) On appeal, he contends: (1) his due process and confrontation rights were violated; (2) there was instructiona...
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Opinion Petitioners, Morite of California, a general partnership, Red Robin International, Inc., a corporation, William M. Morrow, Mary Lou Waite, Emerson G. Hess, Earl Soller, Scott Seller, and George Cottom seek writs of certiorari, mandate, prohibition and other appropriate relief 1 to compel respondent, Los Angeles County Superior Court, to vacate its order setting for trial the declarato...
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Opinion Petitioners, Kaiser Foundation Hospitals, Inc., Kaiser Foundation Health Plan, Inc., and Southern California Permanente Medical Group (Kaiser), seek a writ of mandate directing the superior court to set aside its order of January 20, 1993, granting real parties’ motion to vacate an arbitration award. *515 Real parties’ wrongful death action against Kaiser was submitted to binding ar...
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Opinion The question presented is whether an injunctive consent judgment, in a federal age discrimination in employment case brought by the United States Equal Employment Opportunity Commission (EEOC), operates as res judicata to bar the complaining employee’s original action for damages under California law. We conclude that in this case the element of privity between the employee and th...
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Opinion Petitioner William Rogers seeks review of an order of respondent court denying his request for disclosure of public records from real party in interest, the City of Burbank (the City), 1 pursuant to the California Public Records Act (Gov. Code, § 6250 et seq., 2 hereinafter the Act). He contends: (1) respondent court erred in finding that telephone numbers co...
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Opinion In this case we are confronted with the conflicting interests of fish and fowl at Batiquitos Lagoon. We find the California Coastal Act gives the Coastal Commission the power to resolve this conflict and that the commission acted properly in doing so. *551 Factual and Procedural History 1. Batiquitos Lagoon The factual setting which gives rise to th...
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*325 Opinion The primary issue in this case is whether a standard comprehensive general liability policy (CGL) which includes coverage for “advertising injury” potentially affords coverage for inducing or contributing to patent infringement so as to trigger an insurer’s duty to defend. Facts and Procedural Background Aetna Casualty and Surety Company and Industrial Inde...
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19 Cal.App.4th 578 (1993) 23 Cal. Rptr.2d 671 CHARLENE I. HARROLD et al., Plaintiffs and Appellants, v. ROLLING J RANCH et al., Defendants and Respondents. Docket No. B036168. Court of Appeals of California, Second District, Division Seven. October 15, 1993. *580 COUNSEL Shernoff, Scott & Bidart and Marian H. Tully for Plaintiffs and Appellants. Cassidy, Warner, Brown, Combs & Thurber and...
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Opinion Twenty California paint manufacturers, contractors, and dealers (the Paint Companies) appeal from portions of the judgment granting in part and denying in part their petition for writ of mandate to compel the South Coast Air Quality Management District (the District) to further assess the environmental implications of certain amendments to District rule 1113, adopted on February 2...
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Opinion Roberto Gamboa was killed when he was struck, while riding his bicycle, by a tractor-trailer owned by the Fred Alberg Trucking Company (Alberg Trucking) and driven by its employee, Leland Ray Demele. At the time of the accident, Alberg Trucking was subhauling freight for Conti Trucking, Inc. (Conti Trucking). Appellants, Araceli Gamboa (Roberto Gamboa’s widow) and her three minor ...
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Opinion A group of 21 California paint manufacturers, contractors, and dealers (the Paint Companies) sued several air pollution control districts (the Districts), the Air Resources Board (ARB), the California Air Pollution Control Officers Association, Inc. (CAPCOA), and Technical Review Group (TRG), challenging certain amendments to environmental regulations (Rule Amendments) limiting th...
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Opinion These consolidated actions arising from automobile-pedestrian accident were tried by the court. Judgment was in favor of the injured person, plaintiff and respondent Lisandro Ramirez Azucena, and in favor of plaintiff and respondent Fremont Compensation Insurance Company, which paid workers’ compensation benefits to Azucena on behalf of Azucena’s employer. The judgment, in the total amo...
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Opinion I. Introduction In No. A058473, appellant Jerry C. seeks review of the jurisdictional and dispositional orders by which his children, Brandon and Summer, were declared dependents of the juvenile court and removed from his care and custody pending successful completion of a reunification plan. Appellant contends that he was deprived of due process when the trial court allowed the Sonom...
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Opinion Statement of the Case On February 21, 1992, the Kern County District Attorney filed a five-count information against Luis Alberto Lomeli, Jr. (defendant), charging him in count 1 with oral copulation (Pen. Code, § 288a, subd. (c)), 1 in count 2 with touching an intimate part of the victim (§ 243.4, subd. (a)), in count 3 with assault with intent to accomplish an act of sexual interc...
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Opinion This is an expedited appeal from an order of the trial court filed June 4, 1993, denying a preliminary injunction, the effect of which is to prevent the owners of a twin towers hotel, known as the San Diego Marriott Hotel and Marina (the Hotel), managed by Marriott Hotels, Inc. (MHI), 1 from statutorily terminating MHI’s management contracts pending resolution of the ow...
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Opinion When a trial court orders a new damages trial, may the plaintiff designate new expert witnesses? Our answer is yes. Accordingly we grant petitioner’s application for a writ of mandate. Procedural Background On March 20, 1989, petitioner, while detained by a Bargains Unlimited employee, was injured. He sued real parties in interest (RPI) for assault, battery, and negligence. Prior ...
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Opinion Susan Ann Vincent appeals from the judgment of conviction entered after a jury found her guilty of forgery (Pen. Code, § 470) and making a false financial statement (Pen. Code, § 532a, subd. (1).) She asserts that the conviction for forgery must be reversed because a signature card cannot be the subject of a forgery; that there was no evidence of a false financial statement; and that pr...
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*780 Opinion After a prison guard, Sergeant Dean Burchfield, was speared to death inside San Quentin Prison, three inmates affiliated with the Black Guerilla Family (BGF) were charged with conspiracy to murder (Pen. Code, 1 § 182) and murder (§ 187). A special circumstance, the murder of a peace officer, was also alleged. (§ 190.2, subd. (a)(7).) Appellant Andre J...
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*742 Opinion As to two defendants, the superior court dismissed one count (murder) of a twelve-count multiparty indictment on the ground that prosecution of the murder charge against them is barred by Penal Code section 1387. 1 That section provides that further prosecution of a felony is barred if the action has twice been previously terminated. The People seek a writ of mandate compelling...
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Opinion In this case, we decide that the stipulation giving the defendant an open extension of time to plead to the complaint did not bar dismissal of the action for delay in prosecution when the stipulation was for the benefit of the plaintiff, and upon giving notice, he could require the defendant to file a responsive pleading. Factual and Procedural Background On April 14, 19...
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Opinion The City of Oakland appeals from a judgment in favor of Robert W. Copeland and his wife, Margaret Copeland, in a personal injury case arising out of the overturn of their truck at an intersection in Oakland. The city argues that there was insufficient evidence that it had accepted the street on which the accident occurred into the city’s street system. Absent such acceptance, the ...
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*732 Opinion The issue in this case is whether the City of Santa Monica Rent Control Board’s absolute limitation on annual rental increases is constitutional as applied. Our answer is that it is not. Facts A. In 1979, the City of Santa Monica adopted a rent control charter amendment and created an elected Rent Control Board “empowered to regulate rentals ... so tha...
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Opinion Defendant Lawrence Lancellotti appeals from judgment and sentence of five years in state prison for manufacturing methamphetamine. Authorities were notified when the manager of defendant’s rented public storage locker noticed an unusual odor. Appellant contends that manufacturing the drug was physically impossible because a necessary piece of equipment and a necessary chemical wer...
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19 Cal.App.4th 795 (1993) 23 Cal. Rptr.2d 632 THE PEOPLE, Plaintiff and Respondent, v. DANNY DEE SUTTON, Defendant and Appellant. Docket No. C013235. Court of Appeals of California, Third District. October 22, 1993. *796 COUNSEL David J. Briggs, under appointment by the Court of Appeal, for Defendant and Appellant. *797 Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attor...
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Opinion Three insurance sales representatives employed by defendant California State Automobile Association (CSAA) appeal from a judgment *766 dismissing their breach-of-contract complaint against their employer, and from a postjudgment order denying their motion to tax costs. The judgment followed a ruling by the trial court excluding all evidence of CSAA’s alleged promises ...
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Opinion The People appeal from an August 14, 1992, order granting a new trial on the ground of insufficiency of the evidence. This is the trial court’s second order granting a new trial in this case, and the People’s second appeal. Appellant contends that after the issuance of our remittitur in a prior appeal directing the trial court to deny the motions for new trial, the trial court had no juris...
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Opinion Mark D. (Mark), a resident of Pennsylvania and the father of Joseph D. (Joseph), appeals a judgment under Welfare and Institutions Code section 300 declaring Joseph a dependent of San Diego County *681Juvenile Court. Mark, who had been awarded custody of Joseph in an earlier proceeding in family court in Pennsylvania, contends the San Diego proceeding violated the Uniform Child Custody Jur...
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Opinion Richard Utley appeals from an adverse declaratory relief judgment entered in favor of his insurer, Allstate Insurance Company (Allstate). Appellant was sued by a third party for indemnity after his son fell off a bicycle and injured himself. Appellant brought the instant action for declaratory relief when Allstate advised him that his homeowners insurance policy provided no covera...
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Opinion Plaintiff, a nonprofit corporation comprised of pharmacists throughout California, appeals from a judgment denying its petition for writ of mandamus and for injunctive relief wherein plaintiff challenged various *1141 regulations promulgated by defendant California State Board of Pharmacy (Board) pertaining to pharmacy technicians. Plaintiff contends that the regulati...
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Opinion Procedural History Defendants, Willie Neal and Patrick Shelton, appeal from multiple convictions for a series of armed robberies which they committed at various places during January of 1991. They were jointly charged by an amended information with 17 counts (1 through 6, 8 through 10, 13 through 15, 17 through 20, and 22) of second degree robbery (Pen. Code, § 211),1 2 counts (7 and 25) ...
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Opinion Statement of the Case Defendant Wade William Fry appeals from a judgment entered after a court trial in which he was found guilty of arson of a structure and four counts of arson of a vehicle. (Pen. Code, § 451, subds. (c) and (d).) The court imposed the four-year midterm sentence for arson of a structure and concurrent two-year midterm sentences for the other arson offenses. The cour...
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Opinion Procedural History By an information filed September 7, 1990, appellant and codefendants Phy Chhem, Cheng James Chhem, and David Tam Oum were charged in 12 counts involving murder, robbery, burglary, and forcible rape. After arraignment and entry of plea, appellant’s trial was severed from that of his three codefendants. Appellant’s motion for appointment of cocounsel pursuant to Pena...
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*1281 Opinion In this mandate petition, Eric Belton challenges the granting of the People’s motion to consolidate two murder cases for trial. He argues that while the two offenses are of the same class, their joinder will result in substantial prejudice to him, thus rendering consolidation improper. Petitioner’s argument relies on case law which preceded the adoption of Proposition 115. The...
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Opinion Defendant Theresa Groat was indicted by the Grand Jury of Santa Clara County on December 16, 1991, on one count of misappropriating public funds (Pen. Code, § 424). 1 She moved to set aside the indictment (§ 995, subd. (a)(1)(B)) arguing that section 424 was inapplicable to her. The motion was dismissed. After waiving her right to a jury trial, she submitted the issue of her guilt on ...
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Opinion In this case, we hold that orders awarding discovery sanctions are not separately appealable orders. Procedural Background The order at issue here arises from a discovery dispute in a wrongful death and personal injury action brought by plaintiff Dale Peterson and his children against defendant General Motors Corporation and others after a vehicle accident in which Cheryl Peterson (...
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Opinion In this case we hold a mistrial, new trial or reversal of the judgment on appeal automatically restarts the time limitations on discovery. Thus, where a mistrial was declared, plaintiff’s subsequent demand for exchange of expert witness information was timely because it was made more than 70 days before the date set for retrial. Facts and Proceedings Below This is a medi...
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Opinion Charles Lee Carter (defendant) appeals from the judgment after he was convicted of murder and several lesser offenses and sentenced *1240 to life imprisonment without possibility of parole. He claims the trial court erred by admitting evidence linking him with a prior similar murder, and by denying his request for immunity in connection with any testimony he might give to rebut that e...
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*1258 Opinion The question in this case is whether a trial court must hold a hearing before acting upon a discovery referee’s report. We hold that the trial court must independently consider the referee’s findings and any objections submitted by the parties before accepting or rejecting the referee’s recommendations but that this may be done in whatever manner the trial court deems appropriat...
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Opinion The sole issue presented by this petition for extraordinary relief is whether the Vehicle Code 1 section 11205 requirement that the California Department of Motor Vehicles (Department) publish a list of all licensed traffic violator schools, permits a private cause of action against the state by a school negligently omitted from the published list? As we shall explain, ...
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19 Cal.App.4th 1102 (1993) 23 Cal. Rptr.2d 865 In re the Marriage of CAROLYN S. and JOHN G. DANIELS. CAROLYN S. DANIELS, Appellant, v. JOHN G. DANIELS, Respondent. Docket No. A059833. Court of Appeals of California, First District, Division Five. October 27, 1993. *1103 COUNSEL Patricia Lee Culley for Appellant. Richard L. Howard for Respondent. *1104 OPINION PETERSON, P.J. Appellant Carolyn S. D...
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Opinion Diane L. appeals from a juvenile court order made pursuant to Welfare and Institutions Code1 section 387 permanently removing her great-nephew Joel H., bom June 6, 1984, from her physical custody. Pursuant to an earlier juvenile court order for out-of-home placement, appellant had been Joel’s care provider for more than three years. The appeal raises numerous issues, including whether the...
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Opinion This appeal concerns an exculpatory clause contained in the declaration of covenants, conditions and restrictions (CC&R’s) governing the relationship between an association of condominium homeowners and the condominium owners. If applied to this case, the exculpatory clause will relieve the association of its contractual liability to pay the plaintiff condominium owner for water d...
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Opinion David Duran Jimenez demurred to the information charging him with violation of Penal Code section 1320.5 on the ground that the statute does not apply to bail pending appeal. The demurrer was sustained and the case was dismissed; the People appeal. We reverse. Jimenez was sentenced to 14 years in prison following his guilty plea to a charge of offering to sell cocaine. (Health & Saf. Code...
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Opinion Timothy Sherrick was convicted of 3 counts of violating Penal Code section 288, subdivision (c), i.e., being 10 years older than the 14-year-old victim and committing lewd acts upon her. As part of the written *659 negotiated disposition, appellant agreed: “I now waive and give up my right to appeal in this case. I understand that based on this agreement, I will ...
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Opinion Petitioner was found guilty by jury in superior court of second degree murder with personal use of a deadly weapon and two counts of assault with a deadly weapon and great bodily injury. During his probation interview petitioner asserted he was a juvenile at the time of the offense. The court found that petitioner was a minor and ruled he had waived his right to be tried and sente...
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Appellant Carl Lee Simington was charged with attempted murder (Pen. Code, §§ 187, 664—count 1), assault with a deadly weapon *1377 (Pen. Code, § 245, subd. (a)(1)—count 2), and battery with serious bodily injury (Pen. Code, § 243, subd. (d)—count 3). He was acquitted of the attempted murder charge, as well as the lesser offense of attempted voluntary manslaughter. He was found guilty as charge...
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Opinion This appeal challenges the validity of an excise tax enacted by the City of Vallejo by Ordinance No. 1058. Appellants, Centex Real Estate Corp., Davidon Homes and The Lusk Company, real estate developers, contend that the ordinance was enacted to circumvent the requirements of Government Code 1 section 66000 et seq. which restrict the imposition of development fees and that the excise...
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*1419 Opinion Kern County (the county) appeals from a judgment declaring its landfill assessment ordinance a “special tax” invalidly adopted in violation of article XIII A, section 4 of the California Constitution (section 4). 1 We find the landfill assessment is not a “special tax” and is valid, whether characterized as a regulatory/service fee or as a benefit assessm...
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Opinion On August 19, 1993, the Supreme Court, having accepted this case for review, issued its order directing us to reconsider our decision in light of Cynthia D. v. Superior Court (1993) 5 Cal.4th 242 [19 Cal.Rptr.2d 698, 851 P.2d 1307]. In Cynthia D., the question was whether Welfare and Institutions Code section 366.261 offends due process rights by allowing the juvenile court to terminate pa...
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Opinion Agatha B. appeals the juvenile court’s order declaring her children Christina and Daniel B. dependents (Welf. & Inst. Code, § 360, subd. (c)), removing them from her physical custody (Welf. & Inst. Code, § 361, subd. (b)(1)), and placing them with their father Walter B. (Welf. & Inst. Code, § 361.2, subd. (b).) She contends the court erred in appointing her a guardian ad litem and in acce...
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*1385 Opinion Late one night, defendant Robert Morales acted as a lookout while his brother, Johnny Morales, broke into a locked car which was parked in the lot of an apartment complex. 1 Confronted by a resident of the complex, defendant and Johnny fled on foot. They were pursued by several apartment residents, including Terry McFarland and John Fitzgerald. Defendant, who was armed with a ...
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Opinion Allied-Sysco Food Services, Inc. (Allied-Sysco) appeals from a judgment awarding American Motorists Insurance Company (AMICO) $55,376.27 in a declaratory relief action in which the court found *1346 coverage under Allied Sysco’s excess policy for humiliation damages resulting from sexually discriminatory hiring practices. Allied-Sysco asserts that the trial court erre...
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Opinion Defendant, Andres C. Redondo, was a deputy sheriff for the Merced County Sheriff’s Department. He was convicted of felony embezzlement (Pen. Code, § 504) 1 and misdemeanor theft (§ 488). These charges arose when defendant used his assigned sheriff’s department vehicle to steal a lawnmower. Defendant appeals, claiming opinion testimony was improperly admitted and asserti...
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Opinion We ordered this small claims case transferred to this court (rule 62, Cal. Rules of Court) after the superior court certified the case (rule 63, Cal. Rules of Court) on the ground that it presents important questions of law which are matters of first impression regarding the extent of the superior court’s jurisdiction in a small claims appeal. Those issues are whether an appeal fr...
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*1544 Opinion Statement of the Case On January 6, 1992, an information was filed in Tulare County Superior Court charging appellant Gerardo Cervantes Tinajero with felony sale or transportation of cocaine (Health & Saf. Code, § 11352) with an enhancement for a prior drug conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a), and service of ...
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Opinion Procedural History On March 8, 1991, a 32-count complaint was filed against respondent, Kevin Merritt, by the Los Angeles County District Attorney’s office. Contained in the complaint were counts involving allegations of grand theft of real and personal property, procuring or offering a false or forged instrument for recordation, fraud or unfair dealing by a foreclosure consultant, an...
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Opinion Appellants Pamela and Michael Duckett and Leader Industries, Inc., appeal from the grant of summary judgment in favor of Pistoresi Ambulance Service, Inc., and James Sherrell on all causes of action alleged against them. The summary judgment affects the Ducketts’ complaint and the cross-complaint filed by Leader Industries against Pistoresi Ambulance Service and James Sherrell for...
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Opinion Plaintiff/appellant Yvonne Perez appeals a judgment dismissing her action for personal injuries against defendant/respondent Sallee Smith on grounds of untimely service. (Code Civ. Proc., §§ 583.210, 583.410.) 1 We affirm. Facts On September 30, 1988, appellant filed her original complaint in the municipal court. On August 21, 1991, her motion to transfer the case to the superior ...
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Opinion In thepublished portion of this opinion, we shall hold that the filing of an information tolls the period of limitations as to lesser related offenses which are based on the “same conduct” (Pen. Code, § 803, subd. (b)) as that which underlies the charged offense. 1 Defendant was charged with a variety of sexual offenses committed against Margaret T. and Adonica H. A jury convicted h...
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Opinion Labor Code section 4703.5 obligates an employer to pay a special death benefit to the “totally dependent minor children” of an employee who dies as the result of a work-related injury. In this petition for writ of review, we affirm the Workers’ Compensation Appeals Board’s (Board’s) interpretation of section 4703.5 as extending this special death benefit to a totally dependent minor grandc...
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Opinion In this proceeding in mandate we must decide whether the apparently conflicting subdivisions of Penal Code 1 section 1335 allow or prohibit the People to examine witnesses conditionally in death penalty cases. Based on the century-old prohibition on such examinations and the absence in legislative history of reason to depart from the prohibition, we conclude the People may not conduct...
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Opinion This appeal requires us to consider the California State University system’s (hereafter trustees or respondent) administrative procedures for terminating the employment of tenured faculty members who are more than 70 years old. We also consider the appropriate standard of review of the administrative decision under mandamus petition to the superior court. Facts and Procedural History ...
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*1048 Opinion Petitioner Kenneth Dean Cox, a defendant in a criminal prosecution below, contends he was illegally committed because the magistrate, relying on local court rules, refused to let him move for suppression of evidence at the preliminary hearing on the ground the motion was untimely under local rules. We shall hold that the relevant portions of the local rules are invalid because t...
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Opinion Quality Hotels, Inns and Resorts, Inc. (Quality) 1 appeals from judgment entered in favor of Drew Herrick on his complaint for intentional infliction of emotional injury. Quality contends the emotional distress inflicted on Herrick was remediable solely within the workers’ compensation system, that there was no substantial evidence of ratification of the alleged tortious act by respon...
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Opinion Joan Weiss (hereinafter Weiss) appeals from three orders pertaining to the administration of the estate of her deceased aunt, Frances B. Hammer, by Weiss’s estranged husband, Robert Weiss, executor of Frances Hammer’s estate. The two orders specifically challenged by Weiss on appeal are (1) the February 18, 1993, order instructing and authorizing the executor to employ the law firm of Mil...
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*1585Opinion This appeal involves a decision of the juvenile court terminating appellant’s parental rights as to Leo M. and Angel G. Insofar as only the mother has appealed, the statement of the case, as well as the facts, will include only those items relevant to her claim. On December 6, 1989, a petition was filed against appellant in Kern County Superior Court alleging that Leo M., then three y...
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*1664 Opinion In this case, we will hold a court lacks the authority to rule that an arbitrator, who is given the right to decide all matters in question arising out of or relating to a contract dispute, exceeds his powers in ruling which arbitrating party prevailed for purposes of awarding attorney fees the contract allows. I. Factual and Procedural Background In July ...
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*1676 Opinion This case involves the question of whether a product label may be introduced as an exception to the hearsay rule. Under the facts presented, our answer is yes. Factual and Procedural History Michael G. appeals from the order declaring him to be a ward of the court (Welf. & Inst. Code, § 602) by reason of his possession of a substance containing toluene wit...
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Opinion A jury convicted Benjamin Howard Van Fossan of first degree murder, during which he used a knife. He was sentenced to prison and appeals claiming evidence was improperly excluded and admitted at trial, prosecutorial misconduct occurred and the jury was misinstructed. We reject his contentions and affirm. Facts For about two weeks, the victim, his roommate, Van Fossan, and the latter...
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Opinion I. Introduction In this case we hold that kidnapping for extortion does not require the person extorted be someone other than the kidnapped victim. Mamdouh Ibrahim and Atif Ibrahim appeal from a judgment of conviction for multiple offenses, including murder, rape, and kidnapping for extortion resulting in death. We affirm. II. Background Mamdouh and Atif are brother...
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Opinion I Statement of the Case Following a jury trial, defendant Thomas Ray Gadson was convicted of first degree burglary, two counts of robbery, forcible oral copulation in concert, forcible sodomy, two counts of forcible rape, and grand theft auto. The jury found true the enhancement allegations that the crimes were committed with use of a firearm. Sentenced to state prison, defendant ap...
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Opinion Donald J. Helmer sought a declaration that Penal Code 1 section 12021, subdivision (a) (felon in possession of a firearm), was unconstitutional. The trial court sustained without leave to amend the demurrer of defendants Edwin L. Miller, District Attorney of San Diego County, and Daniel E. Lungren, Attorney General of the State of California (collectively defendants). Judgment was ent...
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*1556 Opinion The Great-West Life Assurance Company appeals from the judgment entered against it in two consolidated actions brought to recover refunds of taxes paid to respondent, the State Board of Equalization (the Board). (Rev. & Tax. Code, § 13103.) We modify and affirm the judgment. Factual and Procedural Background (1) Introduction and Procedural History ...
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Opinion An employee is injured on the job. Her employer is a corporation. The owners of the property on which the corporation does its business, and where the employee was injured, all owned stock in the corporation at the time of the injury. The injured employee receives workers’ compensation benefits from her corporate employer. May she also bring a legal action against the owners of the prop...
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Opinion Appellants were jointly tried but by separate juries. Both appellants were found guilty 1 of kidnapping for robbery (Pen. Code, 2 § 209; count I), attempted forcible oral copulation in concert (§§ 664/288a, subd. (d); count III), second degree robbery (§211; count VI), and three counts of forcible rape in concert (§ 264.1; counts II, IV, V). Firearm allegatio...
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Opinion Convicted by jury of first degree murder (Pen. Code, 1 § 187) 2 and second degree robbery (§211) with great bodily injury (§ 12022.7) appellant contends the trial court erred by giving an incorrect causation instruction (CALJIC No. 3.40 (1992 Rev.)) and by refusing to give a defense requested correct one. We conclude the contention is mistaken and affirm the judgment. Factual Ba...
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Opinion Plaintiffs Francis Russell and Virginia Russell appeal from a judgment in favor of defendants Trans Pacific Group, Brent Lee, and Yolanda Lee, following a court trial of plaintiffs’ action seeking legal and equitable relief due to defendants’ alleged breach of a joint venture agreement to acquire real property at a bankruptcy sale. Defendants cross-appeal, claiming the trial court...
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*1763 Opinion After a court trial, James Anatole Rehmeyer was convicted of the following felonies: two counts of residential burglary (Pen. Code, 2 §§ 459/460); one count of unlawful entry for indecent exposure (§ 314, subd. 1, hereafter referred to as felony indecent exposure); and one count of attempted felony indecent exposure (§§ 664/314, subd. 1). The trial court also found true an all...
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*1688Opinion Patricia B. appeals from a dispositional order on a second supplemental petition under Welfare and Institutions Code1 section 342. At this hearing, the juvenile court ordered that appellant’s daughter, Shawna M., remain a dependent of the juvenile court under section 300, subdivisions (b), (c) and (d); ordered her retained in out-of-home custody, and ordered that supervised visitation...
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Opinion This is an appeal from the award of attorney fees to respondent for a previous appeal in an action for damages caused by *1840 dissemination of the positive HIV status of respondent’s decedent. We find that respondent was not a “successful party” within the meaning of Code of Civil Procedure section 1021.5 and reverse. 1 Background Decedent Gary Urbaniak was injured at work, and...
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Opinion Darrell James Tatman appeals his conviction by jury trial of conspiracy to violate Fish and Game Code statutes governing the harvesting of abalone. (Pen. Code, § 182, subd. (a)(1); Fish & G. Code, §§ 2000, 2002, 8301, 8305, subd. (a).) 1 Appellant contends he could not be convicted of felony conspiracy for violation of specific misdemeanor statutes. He also asserts inst...
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Opinion Appellant Evan R. Flavell filed a petition for writ of mandate and a complaint for declaratory relief against the City of Albany seeking to invalidate Ordinance No. 91-04 which amends the city’s residential off-street parking requirements. 1 The trial court denied the petition and granted judgment in favor of the city. We affirm. I In 1978, residents of Albany approved “Measure D,...
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Opinion A jury found that, from September 1990 through May 1991, defendant committed nine acts of lewd conduct with his nine-year old daughter. The jury determined that six of the acts, in which the daughter either orally copulated defendant or masturbated his penis with her hand, were accomplished by means of force. On one occasion, with his hand defendant “push[ed] [the victim’s] head down .....
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Opinion I. Introduction In this case we hold that multiple monetary sanctions may not be aggregated to meet the $750 threshold for appealability established by Code of Civil Procedure section 904.1, subdivision (k). George Calhoun purports to appeal from an order denying his motion for change of venue and imposing monetary sanctions on his attorney. We dismiss the appeal. II. Ba...
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Opinion The Environmental Protection Information Center, Inc. (EPIC) appeals from an order dismissing its purported “supplemental petition” for writ of mandate challenging the reapproval of a timber harvest plan (THP). EPIC objects to the dismissal on two procedural grounds. We find no merit to EPIC’s contentions. In affirming the order of dismissal, we hold that, after an alternative wri...
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Opinion Albion River Watershed Protection Association and Friends of Salmon Creek (Albion) appeal from a judgment dismissing their petition for writ of mandate. The petition had challenged the approval of a timber harvest plan (THP) by respondent California Department of Forestry and Fire Protection (Forestry). The trial court dismissed the petition, ruling *36 Albion had fai...
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*58 Opinion * Emmanuel Strozier appeals from a judgment of conviction entered after a jury found him guilty of attempted murder with intent to inflict great bodily injury. We affirm. Factual Summary Approximately 9 p.m. on March 17, 1989, appellant and some of his friends arrived at the home of “Junior” who was a friend of appellant’s. “Chris,” a friend of Junior’s was already there. Ev...
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*68 Opinion —Applying governing precedent, we hold that a defendant is entitled to the benefit of an amendment to an enhancement statute, adding a new element to the enhancement, where the statutory change becomes effective while the case was on appeal, and the Legislature did not preclude its effect to pending cases. We also hold that the People are entitled to an opportunity, o...
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Opinion Elizabeth Ellen Cramer appeals from the trial court’s denial of her motion for an order directing the San Bernardino County *75Employees’ Retirement Association to pay pension benefits to her following the death of her former husband. Facts Appellant Elizabeth Ellen Cramer and decedent James Milton Cramer were married in 1959. During the marriage decedent was employed by San Bernardino Co...
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Opinion —This petition for a writ of mandate raises an issue of first impression regarding application of the discovery privilege under Evidence Code section 1157, subdivision (a), which protects “proceedings” and “records” of a hospital staff committee “having the responsibility of evaluation and improvement of the quality of care rendered in the hospital. . . .” We hold that the statute...
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Opinion Suzan Lake appeals from an order sustaining the demurrer of respondents Lakewood Chiropractic Center (Lakewood) and Phillis Hickman 1 to her second amended complaint without leave to amend, and the judgment of dismissal entered thereon. She contends that she was entitled to maintain this tort lawsuit for medical malpractice and damages *49 even though in a previous workers’ compensa...
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Opinion On December 12, 1991, in two municipal court cases, David Johnson entered a nolo contendere plea to the willful violation of a restraining order (case No. 91R15743) and assault with a deadly weapon (case No. 91R12642). (Pen. Code, §§ 273.6, subd. (a)(2); 245, subd. (a)(1).) In each case, imposition of sentence was suspended and Johnson was placed on 36’ months’ formal probation on the c...
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Opinion In this appeal, we consider a challenge to a municipal real estate transfer tax. R. Frederic Fisher and Susan K. Fisher (hereafter Fishers), brought a suit for declaratory relief and tax refund against the City of Berkeley and the County of Alameda (hereafter respondents), alleging that the city’s real estate transfer tax violated section 4 of Proposition 13 (now art. XIII A, § 4,...
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Opinion We reverse the trial court’s order denying defendant physicians’ motion to compel arbitration in a medical malpractice case. Background According to plaintiff Kate Michaelis’s brief on appeal, she consulted defendant Dr. Janet Schori for medical care related to her pregnancy. She was under the impression Schori would be solely responsible for her care. During her first v...
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Opinion Appellant William Lester Crowles was convicted by a jury on one count of violating Penal Code section 664/Health and Safety Code 1 section 11350, subdivision (a), attempted possession of cocaine. At the sentencing hearing the trial court suspended sentence and placed appellant on three years’ probation. One of the conditions of probation was that appellant spend one yea...
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Opinion This is the second of two appeals challenging the manner in which the City of Sacramento (the City) maintains and manages H Street. In Hutchinson v. City of Sacramento (1993) 17 Cal.App.4th 791 [21 Cal.Rptr.2d 779], an appeal resulting from two property owners’ successful petition for writ of mandate, we held the City’s authority to decide whether and when to...
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Opinion —Defendant Larry Dale Pritchett appeals from an order which “recalled” his sentence pursuant to Penal Code 1 section 1170, subdivision (d) and reinstated the precise sentence he had originally received. Because the appeal has been taken from a nonappealable order, we dismiss. Facts and Procedure The facts adduced at trial established that defendant used a sawed-off shotgun as a cl...
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Opinion Moisés O. Jaramillo appeals from his conviction of first degree murder. He claims his trial counsel rendered ineffective assistance by “opening the door” to evidence of premeditation. He challenges the constitutional validity of CALJIC No. 2.90, the standard jury instruction on reasonable doubt, in light of the United States Supreme Court’s grant of certiorari on that issue in People ...
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*182 Opinion In this matter we are called upon to decide whether a tortfeasor seeking partial equitable indemnity may claim the benefit of Civil Code section 1714.1 1 , which imposes financial responsibility upon the parents of an errant minor. We hold that the statute’s provisions do run in favor of the third party tortfeasor, and are not limited to the injured party. We therefore conclude...
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Opinion This is our second review of this case. In the first (GO10983), we reversed a count of attempted robbery with directions to dismiss because it was a lesser included offense of a completed robbery set forth in another count. This would have potentially reduced Manuel Lopez Calderon’s twenty-three-year, four-month sentence by one year. We remanded for resentencing to allow the court to re...
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Opinion Shawn D. was found to have committed burglary. (Pen. Code, §§ 459/460, subd. (a).) He was remanded to the California Youth Authority (CYA) for a maximum period of six years. On appeal, he argues that his confession should have been suppressed because it was involuntary. For reasons we shall explain, we agree. The judgment is reversed. Facts and Procedural Background Henry Han live...
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Opinion Appellant Manuel Mata, a Los Angeles police officer, was terminated after being charged in disciplinary proceedings with six counts of misconduct and found guilty of two counts. In this action he sought and obtained a writ of mandate directing respondents City of Los Angeles and its chief of police to reinstate him. He also sought compensatory damages for violation of his civil rights p...
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Opinion * Real party in interest, Jacqueline Parks-Butcher, claims to have suffered injuries as a result of actions of petitioner, Payless Drug Store. According to Parks-Butcher, Payless’s delay in filling her prescription for an antibiotic, allegedly because Payless mistakenly believed that Parks-Butcher was allergic to the prescribed antibiotic, caused her to suffer a severe infection. Payl...
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*220 Opinion —Defendant Arden Van Upp (Van Upp) appeals from the trial court’s judgment in favor of plaintiff Laurence E. Badgley (Badgley). Van Upp raises several contentions on appeal, including the following: (1) the trial court should have sustained her demurrers to Badgley’s complaints on the grounds the subject matter of the complaints was subject to contractual arbitration and (2) the ...
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*252 Opinion Under Civil Code section 4800, subdivision (a), the value of community assets and liabilities is generally determined as near as practicable to the time of trial. However, on a showing of good cause, the court may value all or any portion of the assets and liabilities at a date after separation and prior to trial. In this case, the trial court denied Ms. Stevenson’s ...
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Opinion Plaintiff and her attorney appeal from an order awarding $3,100 in discovery sanctions to defendants. We modify and affirm the order as to the plaintiff. We reverse as to her attorney. 1 Facts and Proceedings Below Plaintiff, Dalia Ghanooni, sued defendant Super Shuttle and others for personal injuries she suffered on board a Super Shuttle passenger van. Defendants served plaintif...
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Opinion The central issue in this appeal is whether the crime of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) is a lesser and *241 necessarily included offense of willfully and maliciously discharging a firearm at an occupied vehicle (Pen. Code, § 246). 1 We hold assault with a deadly weapon is not necessarily included in the offense of discharging a firearm at an occupied ...
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Opinion This case requires us to make a de novo interpretation of certain language in the Arthur Leonard Marshall Trust. Wells Fargo Bank, as *450 trustee, brought a petition in the probate court for an order construing the trust instrument. (Prob. Code, § 17200, subd. (b)(1).) 1 The probate court ruled that respondent Alisa Marshall (Alisa), the granddaughter of t...
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*439 Opinion This suit is the result of an automobile accident involving a truck owned by the City of Los Angeles (City). Liability for the accident was admitted by the City and the trial was limited to the issue of damages. A jury awarded the plaintiff $5.5 million in damages. On motion of the City the trial court conditionally granted a new trial in the event the plaintiff did not agree to ...
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Opinion —This writ proceeding raises the question whether an adult plaintiff, whose claim for damages for childhood sexual abuse lapsed in 1988 under then-governing law, may take advantage of the liberalized statute *283 of limitations enacted in 1990. We have concluded that the statutory amendments of 1990 did not revive previously lapsed claims and that this action is there...
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Opinion —Ramiro Moreno Oseguera (defendant) appeals from the judgment following remand for resentencing after we found in his favor in an earlier appeal. 1 He contends the court erred by failing to direct preparation of a supplemental probation report, and that the court did not state adequate reasons for imposing a consecutive sentence. We affirm. Facts and Procedural History We adopt ...
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Opinion A jury convicted Anna Jeannette Humiston of conspiracy to commit murder (Pen. Code, 2 § 182, subd. (a)(1)) and first degree murder (§ 187, subd. (a)). The court sentenced Humiston to prison for 25 years to life on each count but stayed imposition of sentence on the conspiracy count under section 654 and ordered that she be housed at the California Youth *466 ...
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Opinion A jury convicted Victor Manuel Solis (Solis) of murder in the second degree of Kenneth O’Brien (O’Brien) (Pen. Code, 2 § 187, subd. (a)) and found Solis had been personally armed with a handgun (§ 12022, subd. (a)(1)). The trial judge sentenced Solis to a total term of 16 years to life. O’Brien was shot by a confederate of Solis. Solis’s conviction was based upon h...
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Opinion In this case we conclude that an order by the juvenile court under Welfare and Institutions Code section 782 1 dismissing a delinquency petition against a minor in “the interests of justice” must be reversed because the trial court failed to state its reasons in the minutes, as required by rule 1493 of the California Rules of Court. Factual and Procedural Summary On May 29, 1992, ...
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Opinion Here we consider whether a court has the authority to order a deponent to perform a physical reenactment of an event at a deposition. We hold that a court is without any such authority and shall grant a writ of mandate. On May 4, 1990, the five-week-old infant daughter of petitioners, William and Margery Stermer, died when a car seat in which she was riding allegedly failed t...
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Opinion Pursuant to rule 62, California Rules of Court, we transferred this matter from the appellate department of the superior court in order to settle an important question of law. (1) Contrary to the appellate department, we conclude that after convicting a defendant of a traffic infraction the trial court is not required to state its reasons for denying the defendant’s request for traffic ...
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Opinion Plaintiff Marie Heacock and defendants Ivor Sack and Ivorette-Texas, Inc. (collectively Sack) appeal from a judgment awarding Heacock nominal compensatory damages of $1 and punitive damages of $150,000 arising out of Heacock’s expulsion from a joint venture with Sack and defendant David Pain. We affirm the judgment of liability against Sack and the judgment in favor of Pain. We conclude...
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20 Cal.App.4th 760 (1993) 25 Cal. Rptr.2d 192 THE PEOPLE ex rel. JOHN GARAMENDI, as Insurance Commissioner, etc., Plaintiff and Respondent, v. AMERICAN AUTOPLAN, INC., et al., Defendants and Appellants. Docket No. B070317. Court of Appeals of California, Second District, Division Five. November 24, 1993. *764 COUNSEL Rosner & Goodman and Dennis Neil Jones for Defendants and Appellants. Daniel...
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*737 Opinion Wilshire Westwood Associates and Platt Development Corporation appeal from summary judgment entered against them in their action seeking damages from former lessees for the costs of abating soil contamination on a parcel of property. They assert error in the court’s grant of summary adjudication of two issues: that operation of a gasoline service station is not an ul...
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Opinion The Department of Motor Vehicles (DMV), pursuant to Vehicle Code section 13353.2, issued an order suspending the driver’s license of Glen McNabb on the grounds that he had driven with a blood-alcohol concentration greater than .08 percent. 1 McNabb challenged the order at a DMV administrative hearing. The hearing officer determined that the evidence supported the order ...
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Opinion This is an appeal from the trial court’s judgment on a petition for court supervision of the winding up of a dissolved law corporation, the two shareholders of which were appellant Norman M. Dolin and respondent Daniel L. Rothman. In early 1982, appellant and respondent were each 50 percent shareholders of Dolin & Rothman, a professional corporation (the Firm). By mutual agre...
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Opinion Appellants the City of Poway (City) and CF Pomerado (Developer) appeal from the judgment in favor of respondent John Housley (Housley). The jury awarded $40,000 against City as damages for inverse *805 condemnation and $112,452 against Developer for fraud damages. The central issue on appeal is whether the damage instructions were correct. 1 I. Fact...
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Opinion Defendant and appellant Ralph G. Allen (Allen) appeals the judgment entered following his conviction by jury of three counts of *849 misdemeanor failure to file California personal income tax returns in violation of California Revenue and Taxation Code section 19401, subdivision (a). 1 We affirm based on our finding that willfulness is not an element of s...
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Opinion This writ proceeding was brought after the respondent court refused to honor a motion to a trial filed under Code of *862 Civil Procedure section 170.6. 1 The motion was made after we reversed an earlier judgment and remanded the case for an evidentiary hearing and determination of a factual issue. We issued an alternative writ and, following full briefing and oral argument, we now ...
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Opinion Angelo Valencia pleaded nolo contendere to transporting cocaine (Health & Saf. Code, § 11352, subd. (a)) and was sentenced to prison. He appeals, contending his motion to suppress (Pen. Code, § 1538.5) was erroneously denied. We reject his contentions and affirm. Facts Officer Gray of the California Highway Patrol (CHP) testified that around 8:40 a.m. on January 24, 1991...
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*869 Opinion Petitioners Albert G. Lew and B. K. Lew, owners of an apartment building in Berkeley, seek a peremptory writ of mandate to compel respondent superior court to set aside its judgment in favor of 75 plaintiffs in a consolidated small claims matter. We issued an alternative writ at the direction of the Supreme Court and, having considered the merits of the petition, now...
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Opinion We are faced here with an interesting paradox. It is well established a capital offense is one which carries the maximum possible penalty of death. It is also well established a person under the age of 18 years cannot, by law, be punished with the death penalty. Petitioner asks us to hold that Kim—a minor—faces a capital offense because, although he cannot, by law, be punished wit...
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Opinion Elliott Friedman (appellant), defendant in a “Marvin” action (Marvin v. Marvin (1976) 18 Cal.3d 660 [134 Cal.Rptr. 815, 557 P.2d 106] [Marvin /]), appeals from an order awarding temporary spousal support pending trial to Terri Friedman (respondent), plaintiff in that action. We reverse. I. Background A. Procedural History On January 13, 1992, respondent filed a complaint, ...
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Opinion In this appeal by the minors from juvenile court orders following a disposition hearing (Welf. & Inst. Code, §§ 360, 395; further section references are to this code), we consider the appropriate standard of review to apply to orders denying placement of minors with relatives. (§ 361.3.) We shall conclude the abuse of discretion standard is appropriate in reviewing such orders. Ap...
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Opinion Jose Arranda Lopez appeals his conviction of conspiracy to sell methamphetamine (Pen. Code, § 182, subd. (a)(1); Health & Saf. Code, § 11379) and an enhancement based on a conspiracy to sell more than three pounds of methamphetamine (Health & Saf. Code, § 11370.4, former subd. (b)(1)). On appeal, Lopez contends the enhancement should be stricken because there was no evidence of an...
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Opinion George Baker appeals from dismissal of his action after the court sustained without leave to amend the demurrer of Mid-Century Insurance Company to Baker’s first amended complaint. Baker sought to hold Mid-Century liable for payment of attorney fees he incurred in prosecuting a personal injury action against Mid-Century’s insured, Bruce Thompson. He alleged the prior action was se...
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Opinion Plaintiff Bright Development appeals from a judgment denying its petition for writ of mandate and complaint for declaratory relief. The trial court ruled plaintiff, a developer, was required “to underground” off-site utilities related to a new subdivision constructed by plaintiff. 1 The trial court found that on the date plaintiff’s vesting tentative map application for...
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Opinion —We hold here that a person certified to use chemical Mace in self-defense, but who does so not in self-defense, may be prosecuted *957 under the special provisions of Penal Code 1 section 12403.7, subdivision (a)(8), but not under the more general provisions of section 375, subdivision (d). Facts and Procedural Background On the night of April 6, 1991, appellant was working a...
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Opinion Petitioner Michael J. Gertner, the executor of a decedent’s estate, seeks to vacate an order of respondent superior court granting the petition of VW Credit, Inc., the real party in interest, to file a late creditor’s claim under Probate Code section 9103.1 Facts Gertner is the executor of the estate of Bruce Geoffrey Saville pursuant to letters issued by the superior court September 1, 1...
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Opinion Introduction Appellant Deanna Balón appeals the trial court’s order granting respondent Shawn G. Hurley’s motion to quash service of summons and complaint. Appellant contends the trial court erred when it found appellant did not comply with Code of Civil Procedure section 474.1 We agree, and therefore shall reverse. Statement of the Facts and Case On December 28, 1990, appellant was invol...
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Opinion Defendant smuggled drugs into a jail by placing them between his toes. One drug was a controlled substance for which he held a physician’s prescription. The other drug was not a controlled substance. Convicted by jury of violating Penal Code sections 4573 (smuggling a controlled substance into a jail) and 4573.5 (smuggling a drug other than a controlled substance into a jail) and ...
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Opinion C. Robert and Joan Karl (plaintiffs) sued defendant Commonwealth Land Title Insurance Company (insurer), alleging that insurer had wrongfully failed to pay a claim on their title policy, to wit, a tax lien purportedly senior, and hence threatening, to plaintiff’s trust deed. Insurer moved for summary judgment, arguing plaintiffs had not suffered any loss insured by the policy beca...
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Opinion Automotive Management Group, Inc. (AMG) protested its termination as a franchised dealer of respondent/real party in interest Mitsubishi Motor Sales of America, Inc. (MMSA). AMG’S protest was rejected because it was untimely. AMG petitioned for a writ of mandate. The trial court found that substantial evidence supported the administrative law judge’s (ALJ) determination that AMG’s prote...
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Opinion Vincent B., the father of Clara B., appeals a judgment under Welfare and Institutions Code2 section 300, subdivisions (b) and (d), declaring Clara a dependent of the San Diego County Juvenile Court. With respect to a finding that he sexually abused Clara, Vincent raises insufficiency of the evidence arguments, including the arguments it was error to admit hearsay statements made by Clara b...
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*950 Opinion Facts and Procedural History The County of Stanislaus brought an action on behalf of Kayla Marie L. (hereinafter Kayla) against Robert Wayne L. (hereinafter Robert) to establish that Robert is the father of Kayla, and to obtain reimbursement from Robert for public assistance moneys allegedly paid by the county for the support of Kayla. Robert, the alleged father...
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Opinion Plaintiff Department of Health Services, through its director, appeals from a judgment entered in favor of defendants Nathaniel J. Friedman and Nathaniel J. Friedman, Inc. (referred to collectively as respondent) after the trial court granted a motion in limine for nonsuit. It contends: “Reviewing the entire statutory scheme of Welfare and Institutions Code § 14124.70 e...
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Opinion The People appeal a judgment of dismissal after the court determined an embezzlement by a tenant could not be charged under Penal Code 1 section 484, the general theft statute, because the rule that a specific statute controls over general statutes requires prosecutors to charge such offenses as violations of section 507. For the following reasons, we reverse the judgme...
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*1019 Opinion The issue in this case is whether a motel employee who is required to live on the motel premises and who, on average, works no more than five hours a day, must be paid for the entire time he spends at the motel or simply the time he provides actual services. We will conclude the employee must be paid only for the time he provides actual services. I. Factual and...
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Opinion A jury, convicted defendant and appellant Lee Rivers of robbery (Pen. Code, § 211) 1 ; defendant having waived a jury on enhancement allegations, the court then found true the allegation that defendant had suffered a prior serious felony conviction within the meaning of section 667, subdivision (a). Defendant was sentenced to a total term of eight years, comprised of the three-year mi...
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Opinion James William Herring appeals from a judgment following conviction by jury that he committed assault with intent to commit rape (Pen. Code, 1 § 220), attempted rape (§§ 664/261, subd. (a)(2)), and sexual battery (§ 243.4), and the trial court’s finding that he had suffered a prior conviction for first degree burglary, a serious felony within the meaning of section 667, subdivision (a)...
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Opinion Convicted by jury of first degree murder (Pen. Code, 1 §§ 187, 189; count I) with two special circumstances found true (§ 190.2, subds. (a)(6) and (a)(17)), arson causing great bodily injury (§ 451, subd. (a); count II), arson of an inhabited structure (§451, subd. (b); count III), explosion of a destructive device causing death (§ 12310, subd. (a); count IV), and explosion of a destr...
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Opinion A jury convicted appellant of making “terrorist threats” (Pen. Code, 1 § 422; counts 5 and 6), intimidating witnesses (§ 136.1, subd. (c)(1); counts 7 and 8), being a felon in possession of a firearm (§ 12021, subd. (a); counts 9 and 10) and found true firearm use (§ 12022.5; counts 5, 6, 7, and 8) and prior felony conviction allegations (§§ 667.5, subd. (b) and 667, subd. (a)). 2 A...
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Opinion The Workers’ Compensation Appeals Board (Board) upheld a determination by a workers’ compensation judge (WCJ) that applicant, Jerry D. Fisk, had sustained new and further industrial disability involving his heart and vascular system but was not entitled to further medical treatment. We have concluded that the refusal to award further medical treatment was erroneous and that the Board’s ...
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Opinion Plaintiff and appellant, Freedom Financial Thrift & Loan (Freedom), appeals from a judgment of dismissal following the sustaining of a demurrer to its original complaint filed by defendant and respondent, Golden Pacific Bank (Golden). This case presents the issue whether a second lending institution, not a party to the original loan, can be responsible for a deficiency in the payo...
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Opinion After the municipal court denied appellant’s motion to quash and traverse a search warrant (Pen. Code, § 1538.5, subd. (f)), appellant entered a “certified plea” of guilty, 1 and the municipal court transferred the matter to the superior court, which then sentenced appellant. We hold that, pursuant to subdivision (m) of section 1538.5, this court lacks jurisdiction to r...
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Opinion In this appeal we consider the authority of the State Controller (Controller) to refuse to implement salary reductions established in 1991 by the Department of Personnel Administration for certain employees of the state who are not entitled to engage in collective bargaining under the Ralph C. Dills Act. 1 (Gov. Code, § 3512 et seq., especially § 3524 [unless otherwise ...
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Opinion Following settlement of a lawsuit against its insureds, Anton and Cynthia Berkovich, Golden Eagle Insurance Company initiated this action against the Berkoviches and Foremost Insurance Company for equitable contribution and subrogation. The Berkoviches filed a cross-complaint seeking reimbursement from Foremost for the amount they contributed to the settlement of the underlying su...
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Opinion The issue presented in this writ proceeding is whether same gender sexual harassment may be the basis of a cause of action for sexual harassment in violation of the Fair Employment and Housing Act. (Gov. Code, § 12940, subd. (h).) After review, we answer this question in the affirmative and issue a writ of mandate directing respondent superior court to vacate its orders sustaining...
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Opinion Appellant Joanne Delfino suffered serious injuries when she fell from her bicycle, after being chased and knocked down by a dog which was running loose on the public streets in Contra Costa County. She brought this lawsuit against the owners of the dog she testified had caused the accident. We will hold, inter alia, that a local ordinance, penalizing an owner whose dog is allowed to roa...
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Opinion We find the trial court abused its discretion in denying appellants’ motion under Code of Civil Procedure 1 section 473 (“The court may . . . relieve a party . . . from a[n] . . . order . . . taken against him . . . through his . . . mistake, inadvertence, surprise or excusable neglect.”). Factual and Procedural Background Christopher Bonzer (respondent) was promoted from police o...
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Opinion Bernard Teamer contends his conviction of vehicular burglary must be reversed because the only felony he intended to commit when he broke into a car was the theft of the car he broke into. We disagree, and therefore affirm his conviction. Facts At about 8:30 p.m. one evening, Valencia Oldham parked her red Nissan in front of her house, locked the car, went into her house and ultimat...
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Opinion During 1984-1986, plaintiff Marc D. Wilson played quarterback for the Los Angeles Raiders. In the off-season during those years, *1443 Wilson lived in Washington State and thus was not a California resident for California income tax purposes. However, because Wilson’s income from his Raiders contract derived from a California source, he paid California income tax on a...
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*1485 Opinion A jury convicted Gary Anthony Maestas (appellant) and Lynton Young (appellant) of assault with a deadly weapon (Pen. Code, 1 § 245, subd. (a)(1)) causing great bodily injury. (§ 12022.7.) Appellant Maestas admitted a state-prison prior-conviction allegation (§ 667.5, subd. (b)) and the trial court found true 2 a serious-felony-conviction allegation. (§ 667, subd. (a).) Appel...
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Opinion I Relocation Assistance Introduction In February of 1986, appellant California Department of Transportation (Caltrans) acquired by condemnation property belonging to respondent United Auto Workers’ Local 887 (the UAW), paying $1.275 million. The property was acquired for the Century Freeway, a project which was partially federally funded. 1 Under bo...
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*1545 Opinion Introduction This appeal is taken by the District Attorney for the County of Los Angeles from an order of the superior court granting the Penal Code section 995 motion of respondent and defendant, Paul Vernon Erwin. In the context of a preliminary hearing conducted on the sworn testimony of a law enforcement officer under Penal Code section 872, subdivision (b), this case pr...
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Opinion Orders for spousal support ordinarily terminate upon the death of the obligor spouse. (Civ. Code, § 4801, subd. (b).) 1 To remedy the financial burden that may flow from such a death, the Legislature has enacted section 4801.4. This section gives the trial court discretion to order the obligor spouse to maintain life insurance for the benefit of the supported spouse “. ...
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Opinion This is a case about the discretion of a trial court in ruling on a motion to deem matters admitted under Code of Civil Procedure section 2033. 1 The defendant was involved in a multicar accident on the Hollywood Freeway. The plaintiff, who was driving one of the other cars, filed a lawsuit against her. Despite substantial efforts to locate the defendant, none of the ...
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Opinion Western Union Financial Services, Inc., sued First Data Corporation and its wholly owned subsidiary, Integrated Payment Systems (IPS), alleging violations of the Unfair Practices Act (Bus. & Prof. Code, § 17000 et seq.) 1 arising from First Data’s sale of certain money transfer services below cost during a five-month promotion aimed at Western Union’s customers. We...
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Opinion Ray Henriksen appeals from the trial court’s grant of summary judgment in favor of the City of Rialto (hereinafter Rialto) on his cross-complaint arising out of an accidental injury inflicted by Henriksen, an off-duty police officer, on another off-duty officer. Appellant argues that Rialto was obligated as a matter of law to indemnify him for any damages recovered against him. We agree w...
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Opinion Procedural History By information appellants Enrique Sanchez Valenzuela and Juan Jose Orozco were charged with one count of murder (count 1), a violation of Penal Code section 187, subdivision (a); 1 two counts (counts 2 and 3) of attempted willful, deliberate and premeditated murder, violations of sections 664 and 187, subdivision (a); and two counts (counts 4 and 5) of assault wit...
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*1522 Opinion Beverly Usher appeals from a judgment entered on a motion for summary adjudication in favor of American Airlines, Inc. (American). We conclude that appellant’s causes of action for breach of contract and handicap discrimination were subject to the exclusive remedy provisions of the California workers’ compensation law and were properly dismissed. Factual and Pr...
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Opinion After a jury verdict in her favor on her action for violation of San Francisco’s Residential Rent Stabilization and Arbitration Ordinance (Ordinance) (S.F. Admin. Code, ch. 37), respondent Irma Aguirre was *1650 awarded $75,000 from Tony and Shaw Lee. The Lees appeal, 1 contending that (1) section 12.19 of the Rules and Regulations (Regulations, section 12...
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*1691 Opinion We hold that a public entity which allows a sporting event to take place on its property has no legal duty to provide a distraction barrier to prevent a passing motorist from seeing or hearing the event. In this situation, the public entity has no liability for injuries caused by the inattentive motorist. Pleadings and Evidence On October 11, 1991, Mic...
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*1738 Opinion I. Introduction In this case we hold that: (1) orders imposing monetary discovery sanctions are not made appealable by subdivision (k) of Code of Civil Procedure section 904.1, and (2) even if they were, the order challenged in this case could not be appealed because the amount of the sanction did not exceed the statutory appealability threshold of $750. Thomas O. Ballard purp...
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Opinion Michelle Garcia appeals from a judgment in favor of the County of Yolo (the County) directing that she pay child support under Welfare and Institutions Code section 11350.1 The judgment awards the County restitution of a portion of the Aid to Families With Dependent Children (AFDC) benefits paid Garcia on behalf of her older son, during a period when he was in foster care. Garcia contends ...
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*1658 Opinion The question in this case is whether the Lancaster Redevelopment Agency may issue bonds secured by funds earmarked for low- and moderate-income housing to fund an “improvement” which has little, if anything, to do with the construction of affordable housing for the persons intended to be benefitted by the Community Redevelopment Law (CRL), section 33000 et seq. of t...
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*1810 Opinion Defendant Jack Dewayne Riley appeals his convictions of second degree murder and accessory after the fact to the murder. We conclude that defendant’s contentions on appeal are without merit, and affirm. Facts On the night of June 11, 1991, Carol Romine was working as a prostitute. Scott Hayden, riding a motorcycle, approached Romine; Romine agreed to a sexual act in exchange...
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Opinion Introduction Appellant Delta Towers Joint Venture (appellant) owned a large office building in Century City and gave its consent to a tenant, respondent law corporation of Dem, Mason, Swerdlow, & Floum (DMF), 1 to sublease a portion of its leasehold to cross-defendant WFI, Inc. (WFI), which was already a subtenant of respondent Mediacom, Inc. (Mediacom). Because ap...
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Opinion * Joan Marselle was injured on May 26, 1987, when she slipped and fell while walking from her place of employment to her car, which was parked in an adjacent parking lot. She brought an action for personal injuries against Richard H. Meyers, Sr., and Marilyn Meyers 1 , who had an ownership interest in the parking lot. Aetna Casualty and Surety Company, the worker...
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*1609 Opinion A jury convicted Fredrico Yanez Gonzales of two counts of residential burglary. (Pen. Code, 2 §§ 459/460.) Gonzales subsequently admitted the truth of allegations concerning two serious prior felony convictions (§§ 667, subd. (a), 1192.7, subd. (c)(8)), as well as those concerning three prior prison terms (§ 667.5, subd. (b)), alleged in the amended information. The trial cour...
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*1755 Opinion Appellant, Ruben Odell Boulware, appeals his conviction by jury verdict of three counts of second degree robbery (Pen. Code, § 211; all further code citations are to the Penal Code unless otherwise indicated) together with a five-year enhancement for a prior serious felony conviction (robbery) and a one-year enhancement for a prior prison term for possession of a co...
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Opinion In our recent opinion in Sandeffer v. Superior Court (1993) 18 Cal.App.4th 672 [22 Cal.Rptr.2d 261] we had occasion to construe certain aspects of Penal Code 1 section 1054.3, the new criminal discovery statute resulting from the approval in 1990 of Proposition 115. The trial court in that case had ordered the defense to produce certain documents pertaining to a defense expert wit...
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Opinion Defendant Lawrence G. Randolph appeals from conviction of violation of Penal Code section 459. 1 His sole contention is that the trial court erred in refusing to give CALJIC No. 4.02. We will affirm, finding insufficient evidence of “legal insanity” to warrant provision of that instruction. Statement of Facts On the evening of July 22, 1989, Terry Katzakian was awakened in his hom...
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Opinion Plaintiff and appellant Carl Wayne Smith appeals from a judgment entered after a demurrer to his first amended complaint was sustained without leave to amend. 1 His action is based on his claim that, through its operation of Kern Medical Center, respondent Kern County negligently performed a laboratory test for acquired immuno-deficiency syndrome (AIDS), and that he was...
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Opinion I. Introduction In this case, we determine that plaintiff, Say & Say, Inc., a corporation, is subject to the vexatious litigant law. (Code Civ. Proc., 1 § 391 et seq.) Accordingly, we issue a prefiling order pursuant to section 391.7, subdivision (a) 2 and direct that Say & Say, Inc., within 10 days secure an order from the presiding justice of this divi...
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*126 Opinion In this case we hold that a spouse’s waiver of her right to take the statutory share of a spouse omitted in her husband’s will is valid when the waiver is contained in a premarital agreement. The trial court found the waiver ineffective because the spouse was not represented by independent counsel in the preparation of the premarital agreement. We disagree, find...
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Opinion Madeline Tucker 1 brought this malpractice action in April 1991 against her former attorneys, alleging that they allowed her meritorious claim in a federal bankruptcy proceeding to be dismissed for lack of prosecution and that this dismissal had adverse res judicata effects in her related state court action. 2 Defendants John Paulsen and Robert Davis brought ...
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Opinion Donald Maescher appeals an order requiring him to reimburse his former wife, Daphne Smith, for education expenses she advanced to their son Peter for his senior year of college. He contends their marital separation agreement defining his obligation to pay college expenses created a third party beneficiary contract for the breach of which only Peter could recover damages. He also c...
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Opinion Defendant Jose Luis Abrego was charged in an information in count 1 with infliction of corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)) 1 and in count 2 with assault with a deadly weapon (§ 245, subd. (a)(1)). Each count specially alleged that the crimes had been committed while Abrego was released on his own recognizance (§ 12022.1). A jury found Abrego guil...
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Opinion Plaintiff Paula Parris appeals a judgment, after jury trial, in favor of defendant Doctor James Sands. We affirm and hold Doctor Sands had no duty to inform patient Parris of “schools of thought” regarding asplenic patients and prophylactic antibiotics. Facts In 1975, physicians diagnosed plaintiff Paula Parris as having Hodgkin’s disease, a cancer of the lymph nodes. To determine w...
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Opinion Defendants, cross-complainants and appellants Douglas Furniture of California, Inc., Harold E. Applebaum, Stuart A. Applebaum, Daniel Feldman, Diane Feldman, Douglas E. Cohen and Howard I. Cohen (sometimes collectively referred to as Douglas or the owners) appeal a judgment in favor of plaintiff, cross-defendant and respondent John B. Kilroy Company, and cross-defendants and respo...
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Opinion Plaintiff and appellant Ramona Convent of the Holy Names (Ramona) appeals a judgment in favor of defendant and respondent City of Alhambra (the City) following the grant of a motion for summary adjudication which disposed of all issues between the parties. Ramona desires to sell 1.97 acres of its campus to generate funds for school purposes. The essential issue presented is w...
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Opinion Jorge O. Bojorquez Perez was charged with second degree robbery (Pen. Code, §§ 211, 212.5, subd. (b), & 213, subd. (a)(2)); 1 personally using a deadly and dangerous weapon (§ 12022, subd. (b)); and a prior serious felony conviction (§ 667, subd. (a)). A jury convicted Perez of second degree robbery and found the weapon use allegation true. In the bifurcated court trial...
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Opinion I On October 27, 1992, Diandre Lamont Lopez pleaded guilty to one count of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (b)), 1 and admitted the gun use enhancement allegation (§ 12022.5, subd. (a)) was true. Pursuant to an indicated sentence, he was sentenced to the midterm of three years on count one and the enhancement was stricken. The district attorney claims the tr...
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*3 Opinion We affirm defendant’s conviction of a violation of Penal Code section 12303.2, prohibiting possession of “any explosive on a public street or highway, in or near any theater, hall, school, college, church, hotel, other public building, or private habitation, in, on, or near any aircraft, railway passenger train, car, cable road or cable car, vessel engaged in carrying passengers fo...
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*312 Opinion Under Civil Code section 846, landowners who permit others to use their property for recreational purposes, are immune from liability for injuries suffered by such recreational use of their land. 1 A company owns land which it allows the public to use without charge for recreation purposes. Groups or persons using the land must sign a form which, among o...
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Opinion Plaintiff David Berman appeals from a summary judgment entered in favor of defendants City of Daly City (Daly City) and Police Officer Joseph Crivello on his complaint for damages for personal injuries and for violation of his civil rights which occurred when the car of a fleeing criminal suspect being pursued by Officer Crivello struck a car driven by *279 Berman. ...
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Opinion The People appeal from orders sustaining demurrers without leave to amend (Pen. Code, § 1002 et seq.) and setting aside (Pen. Code, § 995), and judgments dismissing, all counts of a second amended indictment charging defendants Charles H. Keating, Jr., and Ray C. Fidel with selling unqualified securities. (Corp. Code, §§25110, 25540.) 1 The People theorized that the def...
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*206 Opinion This is a complex construction defect case brought by plaintiffs Dale Village Apartment Company and related entities (Dale Village) against Pieri-Debbas Enterprises, the developer and general contractor on an apartment building project owned by Dale Village. Various subcontractors on the project have also been sued as defendants. Petitioners are certain of those subc...
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Opinion On December 11, 1992, a second amended information was filed in which defendant was charged with having committed eight crimes, seven on July 16, 1992 and one on May 3, 1992. This information also alleged as sentence enhancements that on June 8, 1992, defendant had been convicted of a prior serious felony within the meaning of Penal Code section 667. 1 and that he had committed the al...
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Opinion Defendant appeals from his conviction of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), false imprisonment (Pen. Code, § 236), petty theft (Pen. Code, §§ 484/488), and joyriding (Pen. Code, § 499b). Defendant argues the trial court improperly denied his motion for new trial based on jury misconduct and improperly instructed the jury on false imprisonment. He also contend...
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Opinion Mynor Arnold Rodriguez, a minor tried as an adult, appeals from his conviction of second degree murder. He contends the identification of him as a suspect resulted from a photograph obtained during an illegal “gang sweep” field interrogation and thus his motion to suppress the photograph and subsequent identifications should have been granted. He also contends the court erroneousl...
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Opinion Plaintiff and appellant California Air Resources Board (the Board) appeals the judgment of dismissal entered in favor of defendant and respondent Lawrence T. Hart, individually and doing business as' Bellflower Harley-Davidson (Hart), on the ground the Board is without standing to sue in this matter. *293 Because Health and Safety Code sections 7 and 43154, subdivisi...
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*304 Opinion Introduction The issue in this mandate proceeding is whether the trial court erred in finding that Zaharias M., a 16-year-old accused of committing, along with 3 companions, a bank robbery while using a gun, was fit to be dealt with under the juvenile court law. Our analysis of case precedent and the governing statutory scheme compels the conclusion that the trial court’s decis...
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Opinion In these consolidated appeals, Ivan O.B. Morse challenges the trial court’s issuance of a preliminary injunction that enjoined him from mailing to the public solicitations concerning homestead declarations without complying with Business and Professions Code section 17537.6, 1 and a subsequent judgment that granted a permanent injunction, imposed $400,000 in civil penal...
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Opinion Appellant was convicted after a jury trial of attempted voluntary manslaughter (Pen. Code, §§ 664, 192),1 and brandishing a deadly weapon (§ 417, subd. (a)(1)). The jury further found that appellant inflicted great bodily injury upon the victim within the meaning of section 12022.7, and used a deadly or dangerous weapon in commission of the offense under section 12022, subdivision (b). Th...
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Opinion Defendants and appellants Director of Motor Vehicles and Department of Motor Vehicles (collectively referred to as DMV) appeal from a judgment granting a peremptory writ of administrative mandamus to set aside the suspension of plaintiff and respondent Elizabeth D.’s driving privileges. We find that since the trial court was not provided with either the administrative record or a ...
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Opinion William and Tanya Desmond appeal from a judgment denying their petition for writ of administrative mandate. That petition sought to set aside the decision of the Board of Supervisors (Board) of the County of Contra Costa (County) denying their application for a land use permit. Appellants contend that the administrative findings of the Board are not supported by substantial eviden...
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Opinion Real party in interest, Pamela Kelso who is now 26 years old, has accused her stepfather, Jack Arthur Blackburn, the petitioner herein, of sexually molesting her while she was between 13 and 18 years old. Kelso claims that the molestations started in 1980 and continued through 1985. If true, these alleged acts would constitute violations of Penal Code sections 261, 288, and 288, subdivi...
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Opinion I Introduction Donald W. appeals from orders of the juvenile court adjudging his son, Barry W., a dependent of the court and issuing guardianship letters pursuant *361to Welfare and Institutions Code section 300 et seq. (All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.) In the nonpublished portion of this opinion, we reject appellant’s m...
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Opinion We reverse the judgment in part because of error committed during jury selection and affirm the judgment in part. Background Defendant Timothy L. Smith was convicted by a jury of first degree murder (Pen. Code, §§ 187, subd. (a), 189) 1 (count one) and street terrorism (§ 186.22, subd. (a)) (count two) in the shooting death of a security guard at a taco stand. Firearm enhancements...
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Opinion By filing a second petition for a writ of mandate following summary denial of a prior identical petition, Emil E. “Chuck” Manzetti and Aleo Cad Nickel Plating Corporation ask this court to again review and consider the disposition of a motion to compel access to real property to conduct an inspection pursuant to Code of Civil Procedure *375 section 2031, subdivision (...
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*550 Opinion I Sometimes breaking up is hard to do. Such is the case here. Indeed, this is the third opinion we have written, and the Supreme Court has also authored one. (Schnabel v. Superior Court (1993) 5 Cal.4th 704 [21 Cal.Rptr.2d 200, 854 P.2d 1117].) And still the parties are married. “The relevant facts are undisputed. Terry and Marilyn Sch...
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21 Cal.App.4th 555 (1993) 26 Cal. Rptr.2d 320 THE PEOPLE, Plaintiff and Respondent, v. MARIA ANN VELASQUEZ, Defendant and Appellant. Docket No. G013337. Court of Appeals of California, Fourth District, Division Three. December 28, 1993. *556 COUNSEL Ronald Y. Butler, Public Defender, Carl C. Holmes, Chief Deputy Public Defender, Thomas Hazlena and Brooks S. Talley, Deputy Public Defenders, for De...
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21 Cal.App.4th 434 (1993) 26 Cal. Rptr.2d 305 J.A. SAVAGE, Plaintiff and Appellant, v. PACIFIC GAS AND ELECTRIC COMPANY, Defendant and Respondent. Docket No. A057595. Court of Appeals of California, First District, Division One. December 27, 1993. *438 COUNSEL Scott L. Fielder, Bradlee S. Welton and Hugh B. Fielder for Plaintiff and Appellant. Peter Arth, Anne K. Mester, Helen W. Yee and Irene K....
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Opinion Defendants Thiep Van Nguyen, Ahn Van Tran, and Dung Van Nguyen were each sentenced to state prison after suffering criminal convictions for multiple counts of robbery (Pen. Code, §211 [unless otherwise specified further section references are to the Penal Code]), one count of genital penetration with a foreign object in concert (§§ 264.1, 289), and one count of being accessories t...
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*564 Opinion Bayside Auto and Truck Sales, Inc. (Bayside) appeals from an order denying its petition for writ of mandate to compel the California Department of Transportation (Caltrans) to offer it for sale real property in San Francisco which it has leased from the state since 1973. The main contention here, as below, is that Caltrans had a mandatory duty to offer Bayside the la...
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Opinion Dawn Dunn petitions for a writ of prohibition/mandate to challenge an order compelling her to testify against her husband in grand *723 jury proceedings, 1 contending she can invoke the marital privilege against such testimony. We deny the writ. Dunn was subpoenaed to testify before the grand jury concerning an investigation as to whether her husband k...
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Opinion Dorina S. appeals after the court terminated parental rights to her dependent daughter, Monique S., and referred Monique for adoptive placement under Welfare and Institutions Code1 section 366.26. Dorina contends the court lacked jurisdiction to set the selection and implementation hearing (§ 366.26) at the six-month review hearing (§ 366.21), rather than after a twelve-month hearing. The...
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Opinion In treating with the petition for writ of mandate filed August 27, 1993, by the People of the State of California and the Santa Monica Police Department, we are directly concerned only with the propriety of the superior court’s order of August 25, 1993, an order which required petitioners to return to The Wholesale Connection or its representatives approximately 1,120 car stereo c...
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21 Cal.App.4th 684 (1993) 27 Cal. Rptr.2d 232 EARLE J. BAIRD, Cross-complainant and Respondent, v. CHUCK I. JONES et al., Cross-defendants and Appellants. Docket No. G013030. Court of Appeals of California, Fourth District, Division Three. December 29, 1993. *686 COUNSEL Michael G. York for Cross-defendants and Appellants. Oswald & Yap and Joseph M. Galosic for Cross-complainant and Responden...
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Opinion This case involves liability for a tax mandated by article XIII, section 28 of the California Constitution. That provision imposes a tax on insurers, other than title insurers, doing business in this state. As pertinent, the constitutional provision provides: “[T]he ‘basis of the annual tax’ is, in respect to each year, the amount of gross premiums, less return premiums, received ...
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Opinion In this action, we interpret certain provisions of the “Subletting and Subcontracting Fair Practices Act” (hereinafter, the Act) found in the Public Contract Code. (Pub. Contract Code, § 4100 et seq.; all subsequent references to sections are to this code unless otherwise specified.) The Act addresses the practices of bid shopping by a general contractor and bid peddling by a subc...
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*746 Opinion Petitioner appeals from a judgment denying his petition for a writ of mandamus ordering Kenneth Kizer, the Director (Director) of the Department of Health Services (Department) of the State of California to return the $173,014 paid by petitioner pursuant to an illegal sampling and extrapolation audit methodology utilized by the Department under the MediCal program. A...
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Opinion James Watson appeals from a judgment entered in favor of defendants and respondents, State of California (State) and its employees, *839 Richard Grantham, Ramon Portales, M.D., Chichun Kau, M.D., and Rene Iway, M.D. Appellant brought suit against State based on its alleged failure to summon and provide medical care after he injured himself at the Santa Barbara County jail and was tran...
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Opinion In their petition for writ of mandate, Irma and Agelio Aquino (plaintiffs) challenge the trial court’s order denying their petition for leave to amend their complaint for intentional and negligent infliction of emotional distress to add a claim for punitive damages pursuant to Code of Civil Procedure section 425.13. 1 Real parties in interest, Drs. Robert Reich-man, Fra...
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Opinion Summary The City and County of San Francisco (the City) is the defendant in a civil action brought by real party in interest, Richard L. Phillips (Phillips) seeking damages for personal injuries allegedly sustained as the result of the use of excessive force by San Francisco police officers. By petition for writ of mandate, the City challenges an order granting Phillips’s motion to co...
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Opinion Joe Brown appeals the trial court’s dismissal of his complaint for inverse condemnation against the State of California (State). The action was dismissed after the court sustained the State’s demurrer without leave to amend. I Factual Background In October 1990, Joe Brown filed suit against, inter alia, the State for inverse condemnation. Holding promissory note...
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Opinion James Johnson Bey appeals from judgment of conviction by jury trial of first degree murder. (Pen. Code, § 187; all further statutory references are to the Penal Code unless otherwise indicated.) He argues that statements he made to police were used to impeach his testimony in violation of his rights under the Fifth and Fourteenth Amendments to the United States Constitution. We agree, b...
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Opinion Theresa Adler appeals from an order awarding attorney fees pursuant to Code of Civil Procedure section 527.6, subdivision (h). 1 She asserts that the court cannot award a defendant attorney fees where she has been deprived of the opportunity to proceed to a full, due process *1773 hearing under section 527.6 through no fault of her own and that where the plaintiff has a temporary re...
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Opinion Appellant challenges his conviction for criminal contempt for wilfully failing to pay child support, in violation of Penal Code section 166, subdivision 4. I Appellant first contends the trial court erred by applying Code of Civil Procedure section 1209.52 in this case because section 1209.5 addressed child support, and the order which appellant was accused of violating was for family supp...
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Opinion Facts Each defendant in this case was charged with a violation of West Hollywood Municipal Code section 48011 (hereafter the ordinance), which prohibits camping in that city’s parks. In one case, three defendants were arrested by sheriff’s’s deputies at approximately 9 a.m. after having been found sleeping on foam mattresses placed on picnic tables and covered with blankets in Plummer Park...
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*Supp.3Opinion Appellant challenges his conviction for filing a false report of a criminal offense, in violation of Penal Code section 148.5.1 Facts The arrest report2 establishes the following pertinent facts: On September 26, 1991, at approximately 3 a.m., sheriff’s deputies stopped a car, suspecting that the driver of the vehicle was under the influence. Immediately after the car was stopped, a...
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*709 Opinion Appellant Sequoyah Hills Homeowners Association (appellant) timely appeals from denial of a petition for writ of mandate by which it sought to overturn a decision by respondent Oakland City Council to approve a housing development in the Oakland Hills. Appellant asserts that the environmental impact report (EIR) 1 and the findings underlying the city’s approval of the project w...
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Opinion Paralift, Inc. (Paralift) is a defendant in a wrongful death action filed by Danielle Davida Levin by and through her guardian ad litem Lisa Smalley, Stanley Levin, Estelle Levin and James T. Rinn, representative of the estate of Alan David Levin. Paralift seeks a writ of mandate directing the trial court to grant its motion for summary judgment on either of two theories: A releas...
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