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All Reporters → cal-app-lexis → Volume 1994

Opinions in cal-app-lexis Volume 1994

Opinion Plaintiffs/appellants David Croeni et al., 1 appeal a judgment on the pleadings against them in their fraud action against defendant/ respondent Jeffrey S. Goldstein. Appellants contend the court erroneosly ruled they were not entitled to recover lost profits under Civil Code section 3343 2 against respondent, whose fraudulent misrepresentations induced them ...
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21 Cal.App.4th 787 (1994) 26 Cal. Rptr.2d 391 WILFRED D. COLLIN et al., Plaintiffs and Appellants, v. AMERICAN EMPIRE INSURANCE COMPANY, Defendant and Appellant. Docket No. B073231. Court of Appeals of California, Second District, Division Seven. January 5, 1994. *795 COUNSEL Daniels, Baratta & Fine and Lance Orloff for Plaintiffs and Appellants. Sonnenschein, Nath & Rosenthal, Michael A....
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*828 Opinion An information charged defendant, Damon Burns Campbell, with first degree burglary in count 1 (Pen. Code, § 459) 1 and with dissuading a witness by force or threat in count 2 (§ 136.1, subd. (c)(1)). Pursuant to a plea bargain, defendant pled guilty to count 2 and count 1 was dismissed. 2 The plea agreement provided for a grant of probation. The court granted defendant thre...
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Opinion Penal Code section 667 (hereafter, section 667) states in part that . . any person convicted of a serious felony who previously has been convicted of a serious felony . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.” In the published portion of this ...
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Opinion Plaintiff Hand Electronics, Inc. (Hand) appeals from the trial court’s order granting the motion of defendants Snowline Joint Unified School District and Robyn Lee Phillips (collectively referred to as Snowline) for a new trial. Snowline has filed a protective cross-appeal from the judgment. We affirm the order granting a new trial; therefore, Snowline’s cross-appeal is moot. ...
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Opinion In an action arising from the sale of a business the trial court rendered a judgment in favor of the plaintiff-seller (Siligo) and against the defendant-buyer (Castellucci). 1 The judgment awarded Siligo limited contractual attorney fees by denying the bulk of fees which were apportioned to defense of a cross-complaint for fraud; it also ordered some of the attorney fee...
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21 Cal.App.4th 958 (1994) 26 Cal. Rptr.2d 460 JAMES M. EVANS, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES et al., Defendants and Appellants. Docket Nos. C011373, C012371. Court of Appeals of California, Third District. January 12, 1994. *962 COUNSEL Daniel E. Lungren, Attorney General, Robert L. Mukai, Chief Assistant Attorney General, Floyd D. Shimomura, Assistant Attorney General,...
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Opinion Juan Espinosa Cardenas held himself out to be a “curandero,” or faith healer, and rendered “treatment” to various female believers of the religion Curanderismo. His activities under this guise led to his conviction of six counts of grand theft (Pen. Code, § 487) and seventy counts of sexual misconduct (Pen. Code, §§ 289; 266c; 261, subd. (a)(2); *930 288, subd. (a); 2...
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21 Cal.App.4th 981 (1994) 26 Cal. Rptr.2d 541 LELAND ANGELL, Plaintiff and Appellant, v. PETERSON TRACTOR, INC., Defendant and Respondent. Docket No. C013344. Court of Appeals of California, Third District. January 12, 1994. *984 COUNSEL John Minoletti for Plaintiff and Appellant. Hoyt, Miller & Angstadt and Eric P. Angstadt for Defendant and Respondent. OPINION NICHOLSON, J. Is workers' comp...
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Opinion Warren Douglas Dickey was convicted by plea of possessing cocaine. (Health & Saf. Code, § 11350, subd. (b).) Proceedings were suspended and probation was granted upon certain terms and conditions, inter alia, the service of 68 days in county jail. Prior thereto, he unsuccessfully brought a motion pursuant to Penal Code section 1538.5. He appeals meritoriously contending that “. . ...
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*1004 Opinion Los Angeles County Deputy Sheriff Roy Chester was killed in a helicopter crash while engaged in a drug interdiction operation in Imperial County. The helicopter was flown by Geoffrey Nett, an officer of the California National Guard, which provided air support to the state and federal law enforcement agencies engaged in the drug interdiction effort. Chester’s f...
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Opinion This appeal presents an issue which appears to be of first impression in California: the conflict of interest, or potential conflict of interest, occurring between a client and an attorney negotiating attorney fees as part of a settlement of the client’s case. We hold that where, as here, there is evidence that a conflict of interest arose between attorney and client which may hav...
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Opinion Alma B. appeals an order of the juvenile court identifying adoption as the permanent placement goal for her minor children Roberto *1039 and Alma 2 under Welfare and Institutions Code 3 section 366.26, subdivision (c)(2). Alma contends (1) the court erred in failing to find that termination of parental rights would not be detrimental to the minors, and (2) the evidence does not su...
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Opinion Plaintiff MDFC Loan Corporation appeals from that portion of an order terminating a receivership directing the receiver to disburse the remaining funds in his possession to defendant Greenbrier Plaza Partners. These funds represent income received from commercial real property after Greenbrier defaulted on the underlying debt and plaintiff had a receiver appointed to assume contro...
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Opinion Petitioner David B. seeks a writ to require respondent court to set aside a judgment terminating his parental rights on the ground that he lacked notice. As explained below, we hold that a juvenile court in dependency proceedings has no power to vacate orders on the ground of lack of personal jurisdiction after an order terminating parental rights has become final in that court and we u...
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Opinion Steven F. appeals from an order adjudging him a ward of the juvenile court (Welf. & Inst. Code, 1 § 602) and committing him to the California Youth Authority (CYA) after he admitted to one count of robbery.' He was also ordered, inter alia, to pay a restitution fine of $150 pursuant to section 730.6. He raises two contentions on appeal: (1) the court abused its discreti...
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Opinion As amended in 1992, 1 Government Code section 13967, subdivision (a) (hereafter § 13967(a)), provides in relevant part: “[I]f the person is convicted of one or more felony offenses, the court shall impose a . . . restitution fine of not less than two hundred dollars ($200), subject to the defendant’s ability to pay . . . .” (Italics added.) Penal Code se...
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Opinion In this appeal, Epifano Miranda challenges his convictions of driving under the influence causing injury (Veh. Code, § 23153, subd. (a)) and vehicular manslaughter (Pen. Code, § 192, subd. (c)(1)), arguing these offenses are necessarily included within gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)). We agree with appellant’s contention and reverse the con...
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Opinion Minors Jose M. and Alan A. appeal from juvenile court judgments following their joint trial on petitions alleging two counts each of rape in concert plus great bodily injury enhancements (Pen. Code, §§ 264.1, 12022.8). 1 The counts represented two assaults on Yahaira P., one of them in which Alan allegedly raped her with Jose aiding and abetting, and the other with the ...
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Opinion Following a jurisdiction hearing, the minor, Jermaine B., was found to have violated Penal Code section 459 (burglary) and Vehicle Code section 10851, subdivision (a) (vehicle theft). *1282 At the disposition hearing, the juvenile court continued the minor as a ward of the court and committed him to the California Youth Authority (CYA). The minor has appealed. In an unpublished po...
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Opinion In this case, where the People made no effort to locate Michael John Stabio for prosecution for more than four years after criminal complaints were filed, we examine whether the lengthy delay between the filing of the complaint and Stabio’s arrest violated his federal and state constitutional rights to a speedy trial. As we shall explain, we conclude Stabio has met the applic...
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*1510 Opinion Alexander Sinclair, M.D., appeals from an order denying his petition to compel arbitration of Gary Mormile’s loss of consortium claim. We reverse. Discussion When Mary Mormile first consulted with Sinclair for medical treatment, she signed a physician/patient agreement which provided inter alia: “All Claims Must Be Arbitrated: It is the intention of the parties that this a...
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Opinion The central issue in this appeal is whether a prisoner escaping from a county jail who neither personally used force or *1272 violence nor aided or abetted its use may nevertheless be convicted of forcible escape simply because other prisoners used force in their escape and the defendant prisoner merely took advantage of the situation. Disagreeing with People ...
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Opinion Appellant Miguel Angel Lopez appeals from a judgment after jury verdict convicting him of three conspiracy counts. He raises issues concerning admission of evidence, and he contends the evidence is insufficient as to two of the counts. We reject his specific claims; however, we reverse counts two and three for the related reason that the evidence demonstrated but one prosecutable ...
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Opinion Virginia Le Elder, through her guardian ad litem, Lawrence S. Eisenberg, and Le Hang Le appeal a judgment in favor of McDonnell Douglas Corporation. Le Elder attempted to hold McDonnell Douglas liable under a respondeat superior theory for the alleged negligence of its employee, Dennis Lee Rice. The complaint alleged Rice was acting within the scope of his employment when his vehi...
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Opinion Petitioners Regan Roofing Company, Inc., and Vince Ramirez doing business as Pacific Rebar (collectively Regan Roofing) challenge certain aspects of a pretrial settlement reached between 44 individual homeowners (Kenn Finkelstein et al., collectively plaintiffs) and the developer of plaintiffs’ homes, Leisure Technology Corporation of Oceanside (developer). Pursuant to Code of Civil Proce...
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Opinion On these facts: a felony probationer, in violation of the terms of probation, commits a new offense; the prosecutor files felony criminal charges for the new offense; while a probation revocation hearing is pending, the prosecutor voluntarily dismisses the new case; after hearing, probation is revoked and reinstated without imposition of a prison commitment; the prosecutor refiles felon...
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Opinion Fireman’s Fund Insurance Company (Fireman’s) appeals from an order dismissing its complaint after summary judgment was entered in favor of respondent Maryland Casualty Company (Maryland). 1 Fireman’s suit against Maryland sought reimbursement for some or all of the funds Fireman’s had advanced to settle a lawsuit by a third party. Fireman’s contended Maryland improperly...
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Opinion In this case, we hold that a trial court has the authority to determine the identity of the “prevailing party” in litigation, within the meaning of Civil Code 1 section 1354, for purposes of awarding attorney fees; and that a defendant dismissed without prejudice in an action to enforce equitable servitudes thereunder is not, ipso facto, such prevailing party. I. F...
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*1563Opinion The People appeal an order dismissing an information which charged respondent, Anthony McDaniels, with possession of cocaine base for sale (Health & Saf. Code, § 11351.5) on April 15, 1992. The dismissal was ordered on the court’s own motion after it granted an evidence suppression motion and the People then indicated they were unable to go forward with the case. We reverse. Factual ...
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Opinion Appellant Kirkwood Meadows Public Utilities District (the District) appeals from the trial court’s issuance of a writ of administrative mandamus commanding the District to reinstate William K. Graham as an employee of the District. The District contends the trial court erred in concluding the District’s employee residency requirement was unlawful. We shall reverse. Factual an...
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Opinion Charles S. Nicholson III, D.D.S., appeals from the judgment of dismissal following the grant of summary judgment in favor of respondents John W. Lucas, D.D.S., Bakersfield Memorial Hospital, C. Larry Carr and Charles S. Ashmore, M.D., on appellant’s third amended complaint which alleged malicious prosecution of an administrative proceeding. Appellant contends the bases upon which ...
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Opinion Joseph Manuel Gonzales appeals a judgment convicting him of kidnapping for robbery (Pen. Code, 1 § 209, subd. (b)). He contends the trial court erred in instructing the jury by using a modified version of CALJIC No. 9.54 pertaining to kidnap for robbery, claiming the *1650 modification amounted to a directed verdict on one element of the offense depriving him of his right to a jury ...
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Opinion Michael and Sylvia Heller appeal from the trial court’s grant of summary judgment in favor of the Franchise Tax Board. (Code Civ. Proc., § 437c.) Although this appeal involves the tax liability of the Hellers as individuals, its resolution turns on whether the accumulated adjustments account (AAA) of a California S corporation is increased for interest income earned on United Stat...
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Opinion Steven Hartunian and Sumitomo Tower, Ltd. (defendants), attempted to derail a fast track case through evasive answers to discovery. As a sanction for this conduct, the trial court ordered defendants’ answer struck. Defendants appeal from the ensuing default judgment. We affirm the judgment and impose sanctions against defendants and their attorneys for having prosecuted a frivolou...
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Opinion After denial of his claim for the proceeds of a lottery ticket, in October of 1991 appellant filed an action against the California State Lottery Commission (hereafter respondent or the Commission) for damages in the amount of $50,000. Appellant alleged that he purchased a winning ticket in the “Joker’s Wild” game, but through “oversight” mistakenly *1742 mailed the ticket to the “Sec...
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Opinion We consider whether the Employee Retirement Income Security Act of 1974 (ERISA), 29 United States Code section 1001 et seq., *1676 preempts an action brought under state law for wrongful termination where an employee was terminated for not returning to work when medically cleared by his employer’s physicians. “ERISA includes a ‘virtually unique pre-emption provis...
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Opinion Here we hold that Civil Code 1 section 3267 does not preclude third tier subcontractors and material suppliers from a right of action on a payment bond. *1764 Facts Riverglen Investments, Ltd., sought to develop a subdivision in the City of El Paso de Robles (the City). The subdivision agreement with the City required the construction of certain offsite public improvements for w...
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Opinion In this action the trial court adjudicated competing claims to a $35,000 arbitration award against Allstate Insurance Company and in favor of Michael Wujcik resulting from injuries Mr. Wujcik suffered in an automobile accident. Numerous medical providers and the attorney who represented Mr. Wujcik- in the personal injury action claimed contractual liens against the award totaling ...
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Opinion After Sonia Sanchez obtained a stipulated judgment against L & C Janitorial Service Co. (L & C) and its owner, Cleveland Cadle, she brought a direct action against L & C’s insurer, Truck Insurance *1781 Exchange (Truck), as authorized by Insurance Code section 11580. 1 Truck demurred, and the court sustained its demurrer without leave to amend on the ground...
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Opinion In this case we must decide whether the longstanding, statutory prohibition against the practice of law by persons not admitted to the bar has been abrogated by the more recently adopted Uniform Statutory Form Power of Attorney Act (Power of Attorney Act). *1828 (Civ. Code, 1 §§ 2475-2499.5, added Stats. 1990, ch. 986 (Sen. Bill No. 1777).) We specifically ...
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Opinion In this criminal prosecution for misappropriation of public moneys by a public officer (Pen. Code, 1 § 424), removal of public documents (Gov. Code, § 6200), and conspiracy to violate the personal liberty of another (§§ 182, 236), petitioner Michael D. Bunnell filed a petition for writ of prohibition or mandate in this court, challenging the trial court’s denial of his ...
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Opinion This case involves a dispute between the designated beneficiary of a deceased county employee and the county retirement board over entitlement to death benefits payable under Government Code section 31780 et seq. 1 The trial court ruled against the designated beneficiary. We affirm. *1799 Facts and Proceedings Below The facts are undisputed. Dr. Abdol Fatemi died while an employ...
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Opinion In this appeal we consider whether a full credit bid at a nonjudicial foreclosure sale extinguishes all claims of a lender against the participants in a tortious conspiracy to defraud the lender, none of whom is the buyer. We shall conclude it does. The trial court also concluded it did and entered summary judgment for the defendant conspirators. Plaintiff lender contends its clai...
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Opinion The workers’ compensation judge (WCJ) found that petitioner, Carlos Rodriguez (applicant), sustained an industrial injury to his right knee, back, and right foot during his employment by respondents Jerseymaid Milk Products and the Vons Companies, Inc., that applicant did not sustain an industrial psychiatric injury, and that applicant does not need further medical treatment to cure or ...
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Opinion Boris Pribich appeals after a jury convicted him of one count of the theft of trade secrets (Pen. Code, § 499c, subd. (b)(2)) and found the offense to be a misdemeanor petty theft. The court suspended imposition of sentence, placed appellant on summary probation for three years, ordered him to pay restitution of $400, and stayed payment of a $1,000 fine. Appellant contends that the evid...
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Opinion In this appeal, we conclude that respondent State Compensation Insurance Fund (SCIF) may impose “surcharges” as part of the premiums charged to its insureds. However, such surcharges must be reasonably and fairly imposed and are subject to administrative review. Accordingly, we affirm the decision of the trial court. Background Appellant P. W. Stephens, Inc. (appellant) provides res...
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Opinion section 473, requiring a trial court to vacate a default, default judgment, or dismissal if the aggrieved party’s attorney submits a timely application for relief “in proper form, . . . accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect,” apply to a motion under Government Code section 946.6 for relief from the claim-fil...
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Opinion complaint for declaratory relief, settlements among some alleged joint tort-feasors as cross-defendants in cross-complaints in that action for implied equitable comparative indemnity and contribution, but not involving any of the tort plaintiffs in separate actions, are not subject to a good faith determination under Code of Civil Procedure section 877.6 1 because there ...
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Opinion conviction of second degree murder (Pen. Code, § 187) with a finding that a principal was armed with a firearm (Pen. Code, § 12022, subd. (a)(1)). He contends the trial court erred in refusing him a free transcript of the trial proceedings against severed codefendant Jack Riley, and that the court made instructional errors. The contentions are without merit. The judgment is affirmed. ...
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Opinion plaintiff and the defendants appeal from a judgment awarding damages against the defendants for breach of contract and for the tortious denial of the existence of a contract, but denying the plaintiff any prejudgment interest. We modify the judgment to add the prejudgment interest and affirm as modified. Factual and Procedural Background Goldmine Ski Associates, Inc. (Gol...
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Opinion creditor to give notice of an action seeking to set aside a debtor’s fraudulent transfer of real property. We conclude such an action affects title to real property within the meaning of lis pendens law and will support a notice of lis pendens. However, creditors who misuse the procedure should be severely sanctioned. *69 Hunting World, Incorporated (Hunting World), c...
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Opinion —Richard Overton petitions for a writ of mandate compelling Superior Court Judge David O. Carter to disqualify himself from further *114 proceedings in Overton’s pending murder case, contending disqualification was mandatory under Code of Civil Procedure section 170.6. 1 We grant the petition. In July 1993 we issued a writ of mandate compelling the trial court to declare a mistria...
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Opinion a vehicle (Pen. Code, § 459), declared him a ward, and placed him with his parents. Gaspar contends the court improperly suspended his driver’s license (Veh. Code, 1 § 13350) as a condition of probation. We affirm. Facts About 2 a.m. on May 8, 1992, Erin Edwards heard a car outside her home. A blue car with a white top was parked across her driveway. A man was sitting in it. In th...
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Opinion accomplice during a robbery gone awry, Dung Van Mai complains of the trial court’s failure to modify CALJIC No. 8.12, challenges the constitutionality of CALJIC No. 2.90, and attacks the sufficiency of the evidence to support one of four convictions for attempted robbery. We agree CALJIC No. 8.12 is deficient in several respects and the court should have modified it as requested by the ...
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Opinion —Defendant appeals from a judgment revoking probation and sentencing him to an aggregate term of five years in prison. He argues that when the Mendocino trial court revoked his probation and sentenced him, it violated Penal Code section 669 1 by ordering his San Diego County sentence to run consecutively to his Mendocino County sentence. We affirm. Facts and Procedure In July 1990...
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*78 Opinion order granting the petition of respondent Cloy McDaniel for writ of mandate. In 1987, the DMV revoked McDaniel’s driver’s license for four years pursuant to Vehicle Code section 13352, subdivision (a)(7), 1 which requires license revocation upon a fourth drunk driving conviction. In the petition, McDaniel sought an order requiring the DMV to consider and accept his application f...
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Opinion seeks review of the decision and order of the Agricultural Labor Relations *142 Board (ALRB) in this technical refusal to bargain case. ALRB found that Scheid committed an unfair labor practice in violation of Labor Code section 1153, subdivision (e) by refusing to bargain with the United Farm Workers of America, AFL-CIO (UFW), which had been properly certified in a 1992 election as t...
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*4 Opinion court properly imposed a previously stayed commitment to a county institution. We find no error. Facts Defendant, Kazuo G., a juvenile, was charged in an original petition filed in March 1991 with six offenses. 1 Defendant admitted two of the felony offenses and the two misdemeanors. The remaining counts were dismissed. The juvenile court committed ...
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Opinion —In this tax refund case the County of San Diego (County) appeals from the judgment of the trial court which ordered County to reduce the assessment on certain property. The primary issue on appeal involves the proper application of Revenue and Taxation Code 2 *156 section 1604. Under section 1604, when a taxpayer applies for reduction of an assessment, the Ass...
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*224 Opinion respondent superior court in which real parties in interest are plaintiffs. Respondent court denied petitioner’s motion for change of venue and petitioner now seeks a writ of mandate directing the court to vacate its order of denial and grant the motion. (Code Civ. Proc., § 400; all subsequent statutory references to sections of an undesignated code are to the Code o...
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Opinion I. Introduction In this appeal we decide whether a $3 fee charged by Bank of America for one of its check-processing services is unconscionably high, and if so, whether the trial court erred in issuing an injunction limiting the fee to $1.73, which represents the bank’s cost plus a 15 percent markup for profit. We conclude the fee is not unconscionable, and even if it were, t...
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Opinion Introduction Plaintiffs Say & Say and Liang-Hough Shieh (Shieh) have filed three notices of appeal under the two appellate case numbers referenced post: a notice filed on June 1, 1993, and another filed August 2, 1993, under case No. B076656 and a notice filed on June 3, 1993 under case No. B076709. Each of these notices is substantially the same in form, purportin...
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Opinion —We hold here that when a trial court refuses to initiate civil narcotic addict commitment proceedings under Welfare and Institutions *198 Code 1 section 3051 because of the defendant’s pattern of criminality, it must, under California Rules of Court, 2 rule 406(b), give a statement of reasons which at least point to the factors upon which the co...
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Opinion This appeal presents, on undisputed facts, an issue of first impression, namely whether, under section 573, subdivision (a) of the Probate Code,1 decedent’s cause of action for nullity of marriage survived his death. The issue was joined when the special administrator of decedent’s estate moved for an order substituting himself in as petitioner in decedent’s action insofar as it sought to...
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Opinion tion by jury of threatening a witness (Pen. Code, § 140) and a finding that he had previously been convicted of a felony within the meaning of Penal Code section 667.5, subdivision (b). 1 He contends that the trial court failed to properly instruct the jury on the elements of section 140 and the requisite intent to commit it. He asserts that threatening a witness under section 140 is ...
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*290 Opinion —“Any person now or hereafter employed by the State may file . . . a designation of a person who, notwithstanding any other provision of law, shall, on the death of the employee, be entitled to receive all warrants that would have been payable to the decedent had he survived.” (Gov. Code, § 12479.) The issue presented in this appeal is whether the State Department of Forestry and...
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Opinion —This matter comes before us upon remand by the California Supreme Court for further proceedings consistent with the views expressed in People v. Cahill (1993) 5 Cal.4th 478 [20 Cal.Rptr.2d 582, 853 P.2d 1037]. The Supreme Court overruled its controlling decisions which held that, under the California Constitution, the admission of an involuntary confess...
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Opinion —We are presented with the question whether the court abused its discretion when it ordered all discovery disputes be heard by a private referee with the parties to split the fees equally. Because we conclude the court failed to properly consider the economic impact its order might have on a party claiming she was unable to pay the fees and continue with the litigation, we grant t...
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Opinion refused to pay an attorney the amounts billed for her representation of four indigent minors. By way of a petition for a writ of mandate, the attorney sought our assistance and we issued an alternative writ. After consideration of opposition submitted by County Counsel on behalf of the juvenile court and the County of Los Angeles, we hold that the juvenile court must, upon a reques...
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Opinion Michael Gross, a psychiatrist, appeals from a judgment notwithstanding the verdict. Robert Allen, a psychiatrist whose motion for judgment notwithstanding the verdict was denied, also appeals. We find it was error to grant the appealed from motion for judgment notwithstanding the verdict and reverse that part of the judgment. We also find it was proper to deny Dr. Allen’s moti...
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Opinion —On plaintiffs Michael and Lynn Richie’s1 action for personal injuries, the trial court entered judgments for defendants Bridgestone/ Firestone, Inc., Wagner Electric Corporation and Kaiser Gypsum Company, Inc. The trial court also awarded sanctions to Bridgestone and Wagner. In consolidated appeals from the judgments and the sanctions order, appellant Lynn Richie contends that (1) the non...
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Opinion —Respondent the Titan Corporation (Titan) owned a plant in New Jersey (hereafter the Keasbey site or Keasbey facility) that had been operating since 1906. When Titan decided to close the plant in 1985, it began investigating the extent of its environmental cleanup responsibilities under a New Jersey statute. The investigation revealed the site had some forms of pollution. Tit...
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Opinion —Plaintiff Kathleen A. Laughlin (Kathleen) brought this action against petitioner Pennsylvania Health & Life Insurance Guaranty Association (PHLIGA) and others,1 seeking to recover as a beneficiary of her deceased husband David Laughlin’s (David) life insurance policy issued by a Pennsylvania insurance company which later became insolvent. PHLIGA seeks a writ of mandate directing the resp...
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Opinion —After we granted a peremptory writ of mandate in this matter directing the superior court to issue an order to release the grand jury transcripts in their entirety, the Supreme Court granted a petition for review and transferred the matter to us with directions to reconsider our order in light of Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223 [23 Cal.Rptr.2d 397, 859 ...
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Opinion —Defendant and appellant Robert Lawicki (Lawicki) appeals a judgment entered upon a $125,000 jury verdict in favor of plaintiff and appellant Kathleen Joyce Kelly-Zurian (Zurian) in a sexual harassment case. Defendants and appellants Wohl Shoe Company, Shoe Company-Fanfares Shoes Division (Wohl), Lawicki’s former employer, separately appeal, contending Wohl is not liable for Lawicki’s c...
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Opinion —Dennis Sean Curtin was convicted of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)), 1 grand theft (§ 487, former subd. 1) and forgery (§ 470), all arising out of a single incident in which he cashed a check at a bank by misrepresenting himself as one of the bank’s depositors and using a forged signature. He was sentenced to two years in state prison for the burglary, a co...
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Opinion trial, convicting him of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5), driving under the influence of alcohol and causing injury (Veh. Code, 1 § 23153, subd. (a)), leaving the scene of an accident resulting in injury (§ 20001), and false personation (Pen. Code, § 529.3). True findings were made on specific allegations regarding the first two counts that Gallardo...
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Opinion —Petitioner Emilio Estevez (Estevez) seeks a writ of mandate compelling the respondent superior court to vacate its order of May 3, 1993, directing Estevez to produce information and documentation relating to his income, expenses, and assets, in connection with the application of real party in interest Carey L. Salley (Salley), on behalf of herself and the two minor children of th...
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*324 Opinion —This case stems from the detention of plaintiff, Joe Evans, by defendants, City of Bakersfield (City) and Police Officer Joseph Bianco, which ultimately resulted in Evans’s hospitalization for a broken neck. The City appeals from a verdict in favor of Evans for state tort causes of action and federal civil rights violations. We will reverse, holding that a person subjected to ...
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22 Cal.App.4th 446 (1994) 27 Cal. Rptr.2d 451 THE PEOPLE, Plaintiff and Respondent, v. SHAWN GAMBLE, Defendant and Appellant. Docket No. B068040. Court of Appeals of California, Second District, Division Seven. February 10, 1994. *448 COUNSEL Marleigh A. Kopas, 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 —Plaintiff Laurence L. Pillsbury appeals a judgment favoring defendants Wayne A. Karmgard, L. Ross Whitney and McKusick & *749 Associates 1 on his complaint for malicious prosecution and deceit. Pillsbury asserts numerous errors, most involving his contention the superior court improperly determined he lacked standing to pursue those claims. We affirm the j...
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Opinion (Pen. Code, § 1538.5), defendant entered a negotiated plea of no contest to charges of discharging a firearm in a grossly negligent manner which could result in injury or death (Pen. Code, § 246.3) and being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)). Placed on probation for three years, defendant appeals, challenging the denial of his suppression motion. We shal...
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Opinion —Plaintiff Travis Edwin Jackson appeals a judgment denying his petition for administrative mandate against the Department of Motor Vehicles (DMV). Jackson attacks the judgment as without substantial evidentiary support. We affirm. I Introduction The DMV suspended Jackson’s driver’s license for driving under the influence of alcohol. Jackson lost at an administrative hearing. He al...
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*540 Opinion project, Mark and Valeria Milman and Leonid and Katrin Stolyarov brought an action against Josif Dubrovsky, Victor and Helen Shukhat, and others, alleging breach of contract, fraud, constructive fraud, and breach of covenant of good faith and fair dealing. Insofar as it related to the Shukhats, the plaintiffs sought declaratory relief concerning the rights of the part...
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Opinion —In a one-count information, appellant Connie Maria Orr was charged with murder (Pen. Code, § 187, subd. (a)) in the May 1989 beating death of Willie Stenson, with whom she lived. 1 She claimed self-defense and that she suffered from battered woman’s syndrome. A jury found appellant not guilty of murder and of the uncharged lesser included offense of involuntary manslaughter (§ 192, s...
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Opinion from a judgment which declares that a 1987 amendment to the Public Employees’ Retirement Law, relating to enhanced pension benefits, applies to its employees without its election. Sacramento, as an agency contracting with the Public Employees’ Retirement System (PERS), is subject to the Public Employees’ Retirement Law. Under that law employees classified as “local safety memb...
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Opinion business as Sears Point International Raceway, and Harvey “Skip” Berg appeal a judgment by jury trial awarding plaintiff/respondent Linda Finch (Finch) $476,250 in her action for wrongful termination based on violation of Labor Code section 970, 1 breach of contract, and negligent misrepresentation. Defendants’ principal claims of error are insufficiency of the evidence to support the...
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Opinion from superior court to municipal court after determining the amount at stake was insufficient for superior court jurisdiction. Plaintiff appealed. We hold this order is reviewable solely through a writ proceeding and thus dismiss the appeal. Facts and Proceedings Below Appellant and plaintiff, Niaz A. Yousafzai, purchased a new 1989 Hyundai Excel GLS automobile in April of 1989. The...
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*930 Opinion Introduction Roger Denney (Roger) and Roger’s wife, Marilyn Denney, (collectively plaintiffs) appeal from a stipulated judgment of dismissal entered against them and in favor of the Press Enterprise Company (Press-Enterprise) and E. M. Lawrence (Lawrence) (collectively defendants). 1 They contend that the trial court erred when it ruled, for purposes ...
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Opinion case, seeks a writ of mandate ordering respondent superior court to appoint *905 Attorney Madelynn Kopple, who acted as his court-appointed advisory counsel in the municipal court, to represent him in superior court proceedings. The petition raises several issues concerning the appointment of trial counsel for indigent criminal defendants. The first issue is whether a superior court...
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Opinion I. Introduction Queen Victoria’s reign still had more than 30 years to go when, in 1868, Attorney William Gilbert sketched his operetta Trial by Jury which lampooned lawsuits for breach of promise of marriage. 1 In Gilbert’s story, the defendant was a cad—who loved one young lady today—and another young *946 lady tomorrow. The plaintiff, as one might g...
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*970 Opinion real property in Los Altos Hills in the mid-1970’s. Jack B. Horton is a general contractor who owns a drywall business. The Hortons decided to build an estate on this property for themselves and, with Jack Horton acting as the general contractor, they contracted with plaintiff Maclyn Morris, Jr., to provide the “millwork” or woodwork for the various buildings the Hort...
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Opinion require a verbatim record of a hearing at which the minor admits the petition? We conclude reversal is not always required; appellant, Ian J., has failed to demonstrate entitlement to reversal in the present case. Factual and Procedural Background A “subsequent ward petition” was filed on February 17, 1993, alleging that 16-year-old Ian J. (hereafter appellant) came within the provi...
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Opinion Statement of the Case This is an appeal taken from the superior court’s decision to deny a petition for a writ of mandate filed by a property owner. At issue is a municipal code section which permits reconstruction of a nonconforming building damaged by fire if the cost to repair does not exceed 50 percent of the building’s value prior to the fire. The municipality successful...
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Opinion —This appeal is from a judgment rendered under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA). 1 Kenneth Wagner Ryan (Husband) appeals from a judgment ordering him to pay Jean Palmer Ryan (Wife) child support in the amount of $12,837.62, plus costs, for their three children. His principal contention on appeal is that pursuant to Texas law (the stat...
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Opinion —Metro Traffic Control, Inc., appeals (Code Civ. Proc., § 904.1, subd. (f)) from an order denying its request for a preliminary injunction to restrain respondent Shadow Traffic Network from soliciting Metro’s employees to violate the noncompete and trade secret clauses of their employment contracts. We affirm and hold that the clauses are unenforceable absent evidence that Metro p...
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Opinion Appellant Sharon Purcell DiLeonardo is a one-sixth beneficiary of the income from the trust. Respondents Helen True Purcell, Lauri Ann Prati, and Michael L. Purcell are the other five-sixths beneficiaries of the trust income. Wells Fargo Bank is the trustee. Appellant filed objections to the trustee’s third account. The court summarily adjudicated that appellant’s objections lacked merit, ...
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*1126 Opinion Leedy Plating Corporation, 1 a metal plating plant located on San Leandro Street in Oakland. Both Sangani and Leedy Plating were charged by information with six criminal violations of the California Hazardous Waste Control Act (hereafter the Hazardous Waste Act). (Health & Saf. Code, 2 § 25100 et seq.; Cal. Code Regs., former tit. 22, § 66001 ...
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Opinion council (the City) involves the City’s compliance with the requirements of Government Code section 65583 and related sections in updating the housing element of its general plan; it also involves the application of the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) to that update. The trial court granted a petition for writ of mandate directing the ...
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Opinion Alyssa, free from his parental custody and control pursuant to Civil Code former section 232, subdivision (a)(2) and (a)(7). 1 The minor was adjudicated a dependent child of the juvenile court prior to January 1, 1989. (See *1251 Welf. & Inst. Code, § 366.26 [procedures applicable to minors adjudicated dependent children on or after Jan. 1, 1989].) Appellant...
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Opinion Ocean just offshore from the private beach owned by the Cyprus Shore Community Association in San Clemente include riptides, submerged rocks and a hazardous drop-off. A friend of a guest at a beach party was badly injured in that surf, and brought this lawsuit against the association and the homeowner who allowed the beach party to take place, charging them with failing to warn him...
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Opinion Defendant Clinton Anthony Martin appeals from the judgment entered after his conviction for first degree murder. He charges instructional and other trial court error. We affirm. *78 Statement of Procedure A jury convicted the 18-year-old defendant of murder in the first degree and found true the enhancements as alleged in the information: discharge of a firearm at an occupied mo...
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*1275 Opinion I. Background This is an appeal from a judgment granting a motion to confirm an arbitration award pursuant to Code of Civil Procedure section 1286. 1 Plaintiffs are seven residents of the Stallion Meadows Mobile Home Park: Lydia McGregor; Barbara Robinson; Michael Robinson; David Seim; Pamela Seim; Jerald Vincent; and Marilyn Jewell-Vincent as well a...
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Opinion acre lot in the Santa Monica Mountains, overlooking Tuna Canyon and the Pacific Ocean. What he had in mind was building a modest, three-bedroom home for his family. What he got was a long-term nightmare. Facts Healing’s property (located at 2640 South Chard Avenue, in the County of Los Angeles) is within the inland boundaries of the coastal zone and is regulated by the Ca...
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Opinion Procedural History By information, appellant and codefendant Ronald Thompson 1 were charged with one count (count 1) of murder, a violation of Penal Code section 187, subdivision (a), 2 and two counts (counts 2 and 3) of attempted murder, violations of sections 664 and 187, subdivision (a). As to each count it was also alleged that a principal in the offense was armed with a firea...
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Opinion robbery and assault, claiming error in the admission of his confession, insufficiency of evidence, sentencing error, and a due process violation in the “reasonable doubt” instruction. We find no error and affirm the judgment. Factual and Procedural Summary This case involved four separate incidents. On the afternoon of July 11, 1992, an altercation arose between appellant and several indiv...
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Opinion by another attorney for improperly withdrawing money held in a joint account pending resolution of a fee dispute between them. The petitioner, then represented by counsel, was deposed and, at the deposition, he was asked “legal contention” questions, calling upon him to state all facts, list all witnesses and identify all documents that support the affirmative defenses he had asser...
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Opinion ment in favor of defendants, Sedgwick, Detert, Moran & Arnold and Lenore Duncan. We determined that the notice of appeal was not timely filed. Accordingly, the appeal is dismissed. On October 28, 1993, defendants served a notice of entry of judgment. Additionally, defendants likewise served a notice of ruling concerning the denial of plaintiff’s various posttrial motions. Both...
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Opinion involving conflicting child custody orders of the courts of France and Texas. Father, Dan Alexandre Zenide, petitioner herein, seeks to enforce a Texas child custody order awarding him custody of his two minor daughters. Mother, Rita Ignaccolo, real party in interest herein, seeks to enforce a French child custody order awarding her custody of her two minor daughters. Respondent co...
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Opinion found 17-year-old Rodrigo O. to be a fit subject to be dealt with under juvenile court law. The People contend the court erroneously based its finding on irrelevant alibi evidence and that Rodrigo failed to rebut the presumption of unfitness under Welfare and Institutions Code 1 section 707, subdivision (c). 2 We agree and grant the petition. Factual and Procedural Background T...
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*1309 Opinion counts of robbery (Pen. Code, 1 § 211) while personally armed with a firearm (§ 12022.5, subd. (a)) and admitted that he had been three times in possession of a firearm while a convicted ex-felon (§ 12021.1, subd. (a)). He also admitted suffering prior felony convictions of rape while armed with a firearm (§§ 261, 12022, subd. (a), 667.5, subd. (a)), robbery (§§ 211, 667.5, su...
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Opinion workers who are injured in the course of employment. (See Judson Steel *1379 Corp. v. Workers’ Comp. Appeals Bd. (1978) 22 Cal.3d 658 [150 Cal.Rptr. 250, 586 P.2d 564].) In proceedings before the Workers’ Compensation Appeals Board (WCAB), the respondent Franchise Tax Board was found to have discriminated against petitioner Rosetha Dyer because of a work injury within the meanin...
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Opinion Corporation to challenge certain decisions made by the board of directors in response to the acquisition of approximately 8.8 percent of Chevron’s common stock by the Pennzoil Company. The trial court found the directors’ decisions protected by the business judgment rule and granted summary judgment in favor of Chevron. The shareholders appeal. We affirm the judgment. Statemen...
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Opinion I. Introduction “Do you have any legal cause to show why judgment should not be pronounced against you?” *1238 Many attorneys have heard these words spoken prior to imposition of sentence in criminal proceedings, without giving much thought to what the question means. The inquiry, which is called “allocution,” has ancient roots in the common law and is statutori...
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*1448 Opinion California Uniform Limited Partnership Act (ULPA), a limited partner may file a derivative action against the general partners alleging the general partners engaged in self-dealing and breached their fiduciary duties of due care and loyalty to the limited partnership by leasing partnership property to themselves without making rental payments. The trial court conclud...
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Opinion its application under Code of Civil Procedure section 704.750 1 for an order for sale of a dwelling. The trial court denied the application after determining that respondent Richard W. Storek has a one-half separate property interest in the dwelling, and that the value of that interest is less than the combined amount of Storek’s homestead exemption under section 704.730 and all liens...
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*1340 Opinion appeals from a judgment holding him liable to the beneficiary, Eva Di Grazia (DiGrazia), for breaching his duty to manage the trust property so as to ensure her income. He contends DiGrazia’s action was barred by the statute of limitations, and that the damage award against him was not supported by the evidence and was improperly calculated. DiGrazia appeals from the...
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*1457 Opinion dential burglary and petty theft with a prior conviction (Pen. Code, §§ 459, 666). At approximately 11 a.m. on December 29, 1991, Bernal entered his mother’s home in Spring Valley, went into a bedroom and stole a car stereo. His sister and mother caught him committing the crime. Bernal left on a bicycle. After the jury returned guilty verdicts of burglary and petty theft, in a...
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Opinion of $40 worth of cocaine to an undercover police officer. He had additional cocaine on his person. Convicted of one count of selling cocaine, he now contends the trial court erred in failing to instruct sua sponte on simple possession as a lesser included offense. He also challenges the constitutionality of CALJIC No. 2.90, the standard reasonable doubt instruction. We affirm. ...
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*1392 Opinion adjudication made by the judge in charge of coordinated cases, given the coordination title of “Breast Implant Cases.” The court ruled that the plaintiffs could not state a cause of action for strict liability based on design defect. This ruling is challenged on a number of grounds as discussed hereafter. Writ review of the order is authorized by Code of Civil Proced...
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Opinion obstetrician nicked the cheek of baby Brittany Bro with his scalpel. There was no permanent physical injury to the baby; nevertheless, the parents *1401 commenced the underlying litigation against the doctor, seeking, on behalf of their baby daughter, to recover for medical malpractice and, for their own account, to recover emotional distress damages, arising because o...
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Opinion defendant doctors at the hospital where they maintained staff privileges complies with the notice provision of Code of Civil Procedure section 364 in order to extend the statute of limitations, and if not, whether relief can be granted pursuant to Code of Civil Procedure 1 section 473. We answer both questions in the negative. In this case, appellants Izhak Hanooka and Rina Gay Hano...
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Opinion a trial court may require an applicant for drug diversion to submit to reasonable, but warrantless, searches as a condition of his diversion program. We reluctantly conclude that under the law as currently interpreted, it may not do so. Appellant Victoria Fleming was charged in count I with possession for sale of a controlled substance (Health & Saf. Code, § 11378) and in coun...
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Opinion person attempting to use an automated teller machine. Appellant, Anthony C. Harris, appeals his conviction contending it was reversible error for the trial court to deny his motion for mistrial and to fail to instruct on the lesser offenses of theft and assault. He also contends it was error to use the fact of a single conviction to enhance his sentence under Penal Code section 667, sub...
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Opinion (Pen. Code, § 190.2, subd. (a)(17)(i) & (vii)) against the three “non-shooter defendants” on the ground that Proposition 115 could not be. applied to crimes committed after its passage but before the California Supreme Court’s decision in Yoshisato v. Superior Court (1992) 2 Cal.4th 978 [9 Cal.Rptr.2d 102, 831 P.2d 327] (which held Proposition 115 was effectiv...
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*1614 Opinion an immediately subsequent court trial on a bifurcated allegation that appellant had previously been convicted of the serious felony of robbery (see Pen. Code, §§ 667, 211, and 1192.7, subd. (c)), the court found that allegation to be true. Appellant was sentenced to a total term of 11 years in state prison. This consisted of a six-year upper term for the burglary plus a five-yea...
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*1476 Opinion I. Introduction Don H. Haycock (plaintiff) alleged he was constructively discharged from his employment with Hughes Aircraft Company (defendant) after more than 25 years with the company. The case was tried before a jury, which found in plaintiff’s favor. Defendant appeals contending: (1) it was error to deny defendant’s motion for judgment notwithstanding the ...
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Opinion a grant of nonsuit in favor of the defendant physician, Chaminoor Zachariah, in a medical malpractice action. The Duartes’ evidence affords the inference that Zachariah’s negligent overprescription of a drug harmed her bone marrow, preventing completion of treatment with chemotherapy which would have lowered the likelihood of the recurrence of Duarte’s breast cancer. The cance...
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Opinion against Louis H. Powers, M.D., after a jury determined Powers, a trauma surgeon, was negligent in the diagnosis, care and treatment of Maxwell, who *1600 had been in a motorcycle accident and eventually lost a kidney. Maxwell contends the trial court erred by failing to send the jury back for further deliberations with additional instructions after receiving an erroneo...
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*1644Opinion ther) appeal from orders of the juvenile court terminating their parental rights after the court found it is likely their children, Sarah M. and Charles M., will be adopted. (Welf. & Inst. Code, §§ 366.26, 395; further section references are to the Welfare and Institutions Code.) In the published portion of this opinion, we reject appellants’ contention that the juvenile court erred i...
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Opinion of the superior court under the recently reenacted statutes governing small claims courts to make an affirmative award to a defendant appealing from a small claims judgment in favor of plaintiff where the defendant also suffered an adverse judgment on her own claim. (Code Civ. Proc., § 116.110 et seq. *1589 [all further statutory references are to this code].) We hold ...
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*1500 Opinion credits—for time spent both on “house arrest” and in two of his nonsecure prior placements—against his maximum term of commitment to the Youth Authority. He also claims the amount of credit otherwise calculated by the juvenile court is incorrect. In the published portion of this opinion, we reject the former contention. In the unpublished portion, we decline to reach the latter....
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Opinion marriage to Geryl Tallman. He asserts the trial court erred in determining the amount of the reimbursement to which she was entitled for spending her separate property funds to extinguish a debt encumbering the community residence Civ. Code, 1 (former § 4800.2, now Fam. Code, § 2640). We agree with Mr. Tallman’s contention. Facts The parties married on May 29, 1980, and separated ...
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Opinion (Pen. Code, § 4019) for time served in a work release program (Pen. Code, § 4024.2) while committed to county jail as a condition of probation? 1 We conclude the probationer may not receive conduct and work credit for time served in a work release program because the time is not served “in actual custody.” (§ 4019, subd. (f).) Defendant Kenneth Martin Wills pled no ...
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Opinion sentencing on a violation of Penal Code section 647.6, 1 the trial court may use the defendant’s service of a prior prison term as a factor in aggravation of the base term when that prison commitment resulted from the same prior conviction which elevated the current offense to felony status. This requires us to determine whether People v. Jones (1993) 5 Cal.4th 1142 [22 Cal.Rptr.2...
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*1747 Opinion address the issue of when the prohibiting of the testimony of a witness in a criminal case is an appropriate sanction for a violation of a discovery obligation. (See Pen. Code, § 1054 et seq.) As we shall explain, we conclude that prohibiting the testimony of a witness is not an appropriate discovery sanction in a criminal case absent a showing of significant prejudice and of wi...
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Opinion I. Introduction Plaintiffs, Nelson L. Robbins and Sharon E. Robbins, appeal from an order dismissing their complaint against defendants, Foothill Nissan and the Federal Deposit Insurance Corporation (FDIC), as receiver for Far Western Bank (Far Western) and Atlantic Finance Bank (Atlantic), a division of Far Western, for lack of subject matter jurisdiction. In the published p...
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Opinion Plaintiff Martin Suman (plaintiff) appeals from a judgment rendered after a jury trial in which the trial court construed, in favor of defendant BMW of North America, Inc. (defendant), certain civil penalty provisions of the Song-Beverly Consumer Warranty Act. On appeal, plaintiff challenges the trial court’s construction of those provisions. Defendant defends the trial court’s co...
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Opinion count of committing a lewd or lascivious act upon a child under fourteen years of age (Pen. Code, § 288, subd. (a)), but could not reach agreement on two other identical charges. For this offense defendant was sentenced to state prison for the middle term of six years, with a consecutive term of five years for a prior serious felony conviction (Pen. Code, § 667, subd. (a)). Defendant ap...
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Opinion Sang Van Nguyen was convicted of robbery (Pen. Code, §§ 211, 212.5, subd. (b)) and false imprisonment. (Pen. Code, §§ 236, 237.) Nguyen was armed with a firearm when he committed the robbery. (Pen. Code, § 12022, subd. (a)(1).) On appeal, Nguyen argues that (1) the trial court erred in denying his motion to suppress a suggestive identification; (2) the trial court erred in denying appel...
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Opinion Respondent Cathy Carr sued Barnabey’s Hotel Corporation (Barnabey’s) and Ken Whitty. The case was submitted to the jury on causes of action for sex and pregnancy discrimination based on violation of the Fair Employment and Housing Act (Gov. Code, § 12940 et seq.), wrongful termination in violation of public policy, fraud, and, as to Barnabey’s, negligence in retaining and supervis...
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*26 Opinion Beverly Beust (Beverly) appeals the trial court’s denial of her motion for modification of spousal support from her former husband Walter Beust (Walter). We reverse. Facts The parties’ marriage was dissolved in 1986 pursuant to a stipulated judgment. They had been married for 32 years. Beverly did not work outside of the home during the marriage. She is ...
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22 Cal.App.4th 1814 (1994) 28 Cal. Rptr.2d 498 NORMAN I. KRUG REAL ESTATE INVESTMENTS, INC., Plaintiff and Appellant, v. ROMAN PRASZKER et al., Defendants and Respondents. Docket No. A059808. Court of Appeals of California, First District, Division Two. March 7, 1994. *1816 COUNSEL Roberts, Helfrich & Waughtel and Michael Waughtel for Plaintiff and Appellant. Gordon & Rees, James M. Hanav...
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Opinion An attorney files an action for his client. The attorney does no work on the case. The client gives the case to a second attorney who also does no work on the case. The second attorney also fails to tell the client he has not filed the form substituting himself in as the client’s new attorney. Because of this inactivity, the case never gets to the point where there is a hearing or a depos...
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Opinion We hold here that a defendant charged with kidnapping a person under the age of 14 years (Pen. 1 Code, §§ 207, subd. (a), 208, subd. (b)) may not rely on the defense of reasonable mistake as to the victim’s age. *114 Appellant Mary Lou Magpuso, who is also known as Susan Christine Buckman, was convicted by a jury of one count of kidnapping to rob (§ 209, s...
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Opinion Was a worker on an offshore oil drilling platform who was discharged for refusing to submit to a urinalysis drug test discharged for “misconduct connected with his or her most recent work” and thus ineligible for unemployment compensation benefits? (Unemp. Ins. Code, § 1256.) 1 We hold that he was. We affirm the trial court’s judgment denying declaratory relief to the A...
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Opinion RN Review for Nurses, Inc. (RN) appeals, from a judgment in favor of the State of California, Council for Private Postsecondary and Vocational Education (Council), State Board of Control (Board), and various named members of the Council and Board holding that the Private Postsecondary and Vocational Education Reform Act of 1989 (Act) (Ed. Code, 1 § 94300 et seq.) requires RN to pay an...
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Opinion After the court denied her motion to suppress evidence, defendant entered a negotiated plea of no contest to two counts charging possession for sale of, respectively, cocaine and methamphetamine and admitted committing one of the crimes while on bail (Health & Saf. Code, §§ 11351, 11378; Pen. Code, § 12022.1). On appeal defendant, a Nevada probationer, contends the court erred in ...
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23 Cal.App.4th 144 (1994) 28 Cal. Rptr.2d 359 NORTH COUNTY PARENTS ORGANIZATION FOR CHILDREN WITH SPECIAL NEEDS, Plaintiff and Appellant, v. DEPARTMENT OF EDUCATION, Defendant and Respondent. Docket No. D016698. Court of Appeals of California, Fourth District, Division One. March 10, 1994. *145 COUNSEL Charles Wolfinger for Plaintiff and Appellant. *146 Joseph R. Symkowick, Roger D. Wolfertz and ...
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Opinion Defendant German Maldonado Valdez appeals from the judgment entered following a jury trial that resulted in his conviction for *48 continuous sex abuse of a child under the age of fourteen (count 1, Pen. Code, § 288.5) 1 and five lewd acts with the same child (counts 2 to 6, § 288, subd. (a)) consisting of two acts of sodomy and three of oral copulation. It was also found that as to...
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23 Cal.App.4th 155 (1994) 28 Cal. Rptr.2d 365 THE PEOPLE, Plaintiff and Respondent, v. JOHN ANTHONY BOLANDER, Defendant and Appellant. Docket No. H008927. Court of Appeals of California, Sixth District. March 10, 1994. *156 COUNSEL Richard J. Ingram, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attor...
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I respectfully dissent. Contrary to my colleagues, I apply the Putnam standard,1 and in doing so conclude the trial court abused its discretion in dismissing this case. In my opinion, Putnam provides long overdue guidance to trial courts in exercising their discretion to dismiss cases where service is not accomplished within two years after filing the complaint. I have considered and expressly rej...
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*197 Opinion A plaintiff class of pensioners under the Public Employees’ Retirement System (PERS) and its class representatives obtained judgment directing issuance of a writ of mandate commanding the respondent class of more than 1,350 California public agencies and the Board of Administration of PERS to increase pensioners’ retirement allowances. The trial court judgment rests on an inter...
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Opinion Anthony Kwan sued Mercedes-Benz of North America, Inc. (MBNA) for violation of the refund-or-replace provision of the Song-Beverly Consumer Warranty Act (the Act) (Civ. Code, §§ 1790, 1793.2, subd. (d)(2)), 1 arising out of Kwan’s purchase of a new Mercedes-Benz. Kwan received a jury award of $186,000. MBNA appeals, claiming the court erred in its instructions defining a “willful” vio...
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Opinion Victor E. appeals after the court denied de facto parent status to Victor’s mother and sisters in this dependency proceeding involving Victor’s child, Vanessa Z. Victor contends the court abused its discretion because his mother and sisters met the criteria for de facto parents and no interest was furthered by denying them that status. We conclude Victor lacks standing to challenge the or...
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Opinion In this appeal, plaintiff Nicolas Marsch III 1 appeals a judgment confirming an arbitration award. The award was made by an arbitration panel (Panel) at the conclusion of an arbitration proceeding between Marsch and defendant Ronald Williams, 2 both of whom are partners in the Horizon Properties general partnership. The award appointed one of the Panel member...
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*252 Opinion In this appeal, defendant Ronald Williams and entities he controls 1 (unless otherwise indicated, collectively Williams) appeal an order denying their petition to compel arbitration of claims brought against them by plaintiff and respondent Nicolas Marsch III. Because Marsch’s claims are not related to or grow out of any agreement which provides for arbitr...
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Opinion After an administrative hearing (Veh. Code, § 13558), the Department of Motor Vehicles (Department) suspended plaintiff’s driver’s license for one year. The hearing officer found, among other things, that the arresting officer had reasonable cause to believe plaintiff had been driving a motor vehicle while he was under the influence of an intoxicant. Plaintiff petitioned the superior co...
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*333 Opinion In this eminent domain action a pipeline corporation has as its only customer its parent company. We hold it may be a public utility as defined in Public Utilities Code section 216. The pipeline corporation thus has the power of eminent domain. (Pub. Util. Code, § 615.) We also hold that a business need not relocate to qualify for damages due to loss of goodwill under Code of C...
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Opinion Edward Dore (Dore) appeals from the trial court’s denial of his petition for writ of mandate to compel respondent, County of Ventura (the County), to issue a planned development permit (PDP) for construction of a commercial building in the community of Bell Canyon. 1 We affirm. Facts Bell Canyon Community is an exclusive, guard-gated, rural enclave with 796 lots on which 484 homes...
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Opinion I Procedural Background Appellants, Judi L. Guinn and Steven L. Guinn (Guinns), filed a complaint for negligence, dangerous condition of public property, trespass, *265 nuisance, inverse condemnation, and negligent infliction of emotional distress against respondent, James L. Dotson (Dotson), the City of Beaumont (City) and certain contractors regarding the construction of a stree...
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Opinion Plaintiff Main & Von Karman Associates (M&VK) appeals from a judgment denying its claim for refund of real property taxes. Because the county assessor failed to follow the mandatory provisions of rule 4 of the State Board of Equalization (Cal. Code Regs., tit. 18, §4) in using the comparable sales approach to value in calculating the fair market value of the properties, we reverse...
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Opinion The City and County of San Francisco (City) has a longstanding practice of granting to private entities what amounts to an exclusive franchise to collect refuse. The issue presented is whether the City’s authority to enter into this type of arrangement survived passage of the California Integrated Waste Management Act of 1989. 1 We conclude that the City still has the p...
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Opinion California law requires that workers on public works projects be accorded the same working conditions and wages that prevail in private industry. The California Department of Industrial Relations (Department) is charged with determining what wages are prevailing for specific *349 types of work at any given place and time; its determinations are binding on the parties ...
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Opinion The case at bench requires this court to resolve the following question: May a purchaser of real property who learns of potential material misrepresentations about the property after execution of a purchase agreement—but before consummation of the sale—close escrow and sue for damages? Our answer is, “yes.” I. Factual and Procedural Background A. Facts 1 On ...
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Opinion Plaintiff George Applegate appeals from the portion of the judgment of the trial court awarding costs to defendants following his dismissal of the underlying action on thé day of trial. We affirm. I Defendant St. Francis Lutheran Church owns a building on Belcher Street in San Francisco, which it rents to defendant Friends of St. Francis Child Care Center, Inc. Plaintiff...
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Opinion Appellant Domanic B. contends the juvenile court acted improperly when it ordered that he receive a stayed commitment to the California Youth Authority (CYA), as in effect a condition of probation. There is a conflict in our district on this point. Certain dicta contained in a decision of Division Two, In re Ronnie P. (1992) 10 Cal.App.4th 1079, 1089-1090 [12 Cal.Rptr.2d 875], apparen...
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Opinion Appellant Judith A. von der Nuell (wife) appeals an interlocutory judgment following a bifurcated trial in a marital dissolution proceeding.1 The issue presented is whether the trial court erred in holding the date of separation of the parties to be November 1,1987, the date respondent Achim von der Nuell (husband) moved out of the family residence. The critical inquiry in determining the...
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Opinion The question presented by this appeal is whether the surety on a construction bond is liable for attorney fees incurred by a bond beneficiary. The beneficiary’s contract with the surety’s principal calls for the payment of fees to the prevailing party in the event of any legal action. Following the statutory mandate that a surety’s liability is commensurate with that of its p...
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23 Cal.App.4th 830 (1994) 28 Cal. Rptr.2d 560 BOARD OF SUPERVISORS OF RIVERSIDE COUNTY et al., Petitioners, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; TEMECULA RANCHOS, Real Party in Interest. Docket No. E013090. Court of Appeals of California, Fourth District, Division Two. March 22, 1994. *833 COUNSEL William C. Katzenstein, County Counsel, Lorenz, Alhadeff, Cannon & Rose and St...
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Opinion Plaintiff and appellant Pavarud Srithong (Srithong) appeals a judgment holding defendants and respondents Total Investment Company *724 and Michael and Bok Kwon (collectively, Total) not jointly and severally liable with a codefendant for Srithong’s noneconomic damages. 1 In this case of first impression, the issue presented is whether Civil Code section ...
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Opinion Real party in interest brought an action against petitioners alleging libel and intentional interference with prospective economic advantage in connection with petitioners’ publication in their biweekly financial newsletter of a commentary criticizing real party’s advertisements in the Wall Street Journal. After the trial court overruled petitioners’ demurrer, they petitioned this...
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*827 Opinion We hold that a woman has no reasonable expectation of privacy in a purse left in a stolen car. Hence, she has no “standing” to contest a search of the purse by police officers. Following the denial of her motion to suppress evidence 1 (Pen. Code, § 1538.5), defendant entered a negotiated plea of no contest to a charge of receiving stolen property. (Pen. Code, § 496, former su...
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*762 Opinion Introduction At the times relevant to this case, it was settled law under the National Labor Relations Act (NLRA) 1 and the Immigration and Nationality Act (INA) 2 that nonagricultural workers were not entitled to remedial backpay during any period when they were not present in the United States. (Sure-Tan, Inc. v. NLRB ...
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Opinion Defendant Whitley Heights Civic Association (Association), an association of homeowners, appeals from a judgment in favor of plaintiff Citizens Against Gated Enclaves (CAGE) and two individual plaintiffs. The court found that pursuant to Vehicle Code section 1 21101.6, the Association was prohibited from placing gates on its streets. The Association contends that s...
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Opinion The Department of Motor Vehicles (the DMV) has a state-approved form (DS 367A) for reporting chemical test results to the DMV when a police officer administratively suspends a licensee’s driving privilege pursuant to Vehicle Code section 13353.2 (driving with a blood-alcohol concentration of 0.08 percent or more). 1 The form requires the test results to be sworn. For re...
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Opinion We hold that firefighters who develop cancer after being exposed to carcinogens in the course of employment need not show that their cancer was proximately caused by those carcinogens in order to benefit from the presumption of industrial causation established in Labor Code section 3212.1. 1 Background Walter Smith (applicant), born September 10, 1947, was a fire...
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Opinion Insurance Code section 10119 requires an insurer to cover, “from and after the moment of birth,” the newborn infant of any *900 covered family, but is silent as to the duration of such coverage. 1 In this case, we hold that such unconditional coverage extends for 31 days after the birth. We also hold, because the insured here did not apply for coverage for ...
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Opinion Plaintiff Karen Juran (Karen) brought this action against her stepfather, defendant David Epstein (David). Karen alleged David breached an oral agreement by revoking a 1985 will he executed while Karen’s mother, Charlotte Epstein (Charlotte), was alive. David successfully moved for summary judgment pursuant to Probate Code section 150. 1 Karen appeals. We reverse the ju...
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Opinion In this case we hold that an encumbrance by a debtor to an attorney, made for value in the form of an antecedent obligation for legal services, is not fraudulent as to another creditor, under applicable provisions of the Uniform Fraudulent Transfer Act (Civ. Code, § 3439 et seq.; the Act), and that this is true even though the transfer was a preference that resulted in the debtor ...
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Opinion I. Introduction This is an appeal by the Resolution Trust Corporation (RTC), as receiver of Far West Federal Bank of Portland, Oregon (Far West), from an order granting summary judgment to plaintiffs entered by the Honorable Charles C. Lee of the Los Angeles County Superior Court. In an unpublished memorandum opinion filed on August 24, 1993, this court reversed the judg...
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23 Cal.App.4th 1193 (1994) 28 Cal. Rptr.2d 822 ELIZABETH MENDLY et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents. Docket No. B073226. Court of Appeals of California, Second District, Division Seven. March 25, 1994. *1198 COUNSEL Mark D. Rosenbaum, Robert D. Newman, Richard A. Rothschild, Nancy Mintie, Paul, Hastings, Janofsky & Walker, John H. Bri...
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*1171 Opinion Plaintiff and appellant KFC Western, Inc. (KFC) appeals a judgment of dismissal following the sustaining of a demurrer without leave to amend interposed by defendants and respondents Alan Meghrig and Margaret Meghrig (the Meghrigs) to KFC’s first amended complaint. The issues presented include: whether KFC’s cause of action under Health and Safety Code section ...
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Opinion Plaintiff obtained a judgment against defendant for breach of a written contract and was awarded his costs. Although he is not an attorney and appeared in the action pro se, plaintiff sought an award of attorney fees pursuant to the attorney fee clause of the contract for the time he spent on the case. The trial court declined to award the requested fees. On appeal, plaintiff cont...
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Opinion Appellant, the father of Moriah T. and Harry T., appeals from a juvenile court order which terminated reunification services and scheduled a hearing to select and implement a plan of adoption, guardianship, or long-term foster care for the minors (Welf. & Inst. Code, §§ 366.22, subd. (a), 366.26; further section references are to the Welfare and Institutions Code), and which conti...
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*1403 Opinion Metropolitan Outdoor Advertising Corporation appeals after the court denied its petition for peremptory writ of administrative mandamus. We affirm. I In 1981, Metropolitan received a “Conditional Use Permit” allowing it to erect a billboard in Santa Ana. When the permit expired, Metropolitan was “responsible for securing removal of the subject sign structure without expense ...
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Opinion In this action by retailers for a refund of a local sales tax, defendant State Board of Equalization (SBE) and intervener San Francisco Educational Financing Authority (EFA) appeal from summary judgment entered in favor of plaintiffs, Hoogasian Flowers, Inc., Ace Pharmacy, Diane O., and Surf Pharmacy (the retailers). The sales tax at issue in this case was imposed by EFA pursuant to an ...
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*1142 Opinion Tills is an appeal from a multimillion dollar judgment in a bad faith action brought by 13 investors in Technical Equities Corporation (Technical Equities) against the company’s primary insurance carrier, National Union Fire Insurance Company of Pittsburgh, Pa. (National Union). Technical Equities, a diversified investment services company, financially collapsed in ...
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Opinion Introduction Petitioner, State Farm Mutual Automobile Insurance Company (State Farm), seeks a writ of mandate directing the respondent court to vacate an order compelling arbitration of an uninsured motorist claim filed by its insured, plaintiff John Soltero (Soltero). The insurer of the tortfeasor in Soltero’s underlying action became insolvent after suit was filed against t...
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Opinion In this case, we are called upon to decide as a matter of first impression the scope of a Probate Code section 3601 order approving expenses on a minor’s compromise. We conclude the statute gives the court *1380 the power to decide reasonable expenses to be paid from the settlement, not the reasonable value of the services rendered to the minor. Factual and Procedural Background ...
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Opinion The County of Los Angeles (the County) appeals the judgment denying its petition for writ of mandate to compel County Auditor-Controller Alan T. Sasaki (Sasaki) to disburse property tax receipts in accordance with County Ordinance No. 93-0045. That ordinance provides for apportionment of property tax revenues for fiscal year 1993-1994 in accordance with their apportionment in 1992...
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Opinion Plaintiffs Gregory Don Hunsucker, Linda Mae Hun-sucker, Michelle Hunsucker and Jerry Hunsucker appeal from the judgment entered against them after the court granted the motion of defendant Sunnyvale Hilton Inn for summary judgment. We shall affirm. Facts Plaintiff Gregory Don Hunsucker is president of United Food and Commercial Workers Union, Local 1288. On June 18, 1990...
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Opinion Sharon L. Reuling (Wife) appeals a judgment allocating community property following the dissolution of her marriage to Irvin Reuling (Husband). Her principal contention is that the trial court erred in selecting the valuation date for shares of stock and stock options acquired by Husband during the marriage. Husband cross-appeals from the order awarding Wife attorney fees. We affi...
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*1491Opinion Defendant Scott Campbell was convicted by jury of the second degree murder of Daniel Willis (Pen. Code, § 187; all subsequent undesignated section references are to the Penal Code). The jury also found that he personally used a shotgun during the murder (§ 12022.5, subd. (a)). He was acquitted of assaulting Robert McAlvain with a firearm (§ 245, subd. (a)(2)). Following his sentence ...
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Opinion A jury convicted defendant Mauricio Ernesto Funes 1 of one count of second degree murder (Pen. Code, § 187) 2 and one count of participating in a criminal street gang (§ 186.22, subd. (a)). With respect to the murder count, the jury further found that defendant had used a dangerous and deadly weapon (a baseball bat) (§ 12022, subd. (b)), and had committed the...
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23 Cal.App.4th 1256 (1994) 29 Cal. Rptr.2d 100 PLANET INSURANCE COMPANY, Plaintiff and Respondent, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant and Appellant. Docket No. G013373. Court of Appeals of California, Fourth District, Division Three. March 25, 1994. *1258 COUNSEL Cassidy, Warner, Brown, Combs & Thurber and Glen A. Stebens for Defendant and Appellant. Mower, Koeller, Nebeker ...
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Opinion On July 5, 1989, plaintiff Lykes Bros. Steamship Co., Inc. (Lykes), filed this action against the State Board of Equalization (Board), to recover $32,076 in sales and use taxes paid under protest, plus interest thereon from date of payment. Trial was by the court, sitting without a jury. Following Lykes’s presentation of evidence, the Board filed a motion for judgment pursuant to ...
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Opinion Defendant/appellant Jaymar-Ruby, Incorporated, appeals a judgment entered pursuant to a settlement agreement with plaintiff/respondent Arthur Kohn in respondent’s action for wrongful termination. Appellant contends the trial court abused its discretion in entering judgment because the agreement was invalid and unenforceable. We affirm. Facts and Procedural History Respondent’s compl...
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Opinion Plant Insulation Company (Plant) appeals from a judgment against it and in favor of Evea Merle Williamson, individually and as special administrator of the estate of Wash Chapel Williamson, for $1,067,041.90 in damages arising from Wash Williamson’s exposure to asbestos-containing products distributed by Plant. We reverse in part and affirm in part. Facts Wash Williams...
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Opinion Defendants were convicted of possession of a controlled substance for sale (cocaine), robbery and conspiracy to commit robbery. In addition, defendant Wagner was convicted of conspiracy to possess a controlled substance for sale. We conclude Wagner’s conviction for conspiracy to possess a controlled substance for sale must be reversed due to insufficient evidence and the sentences...
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Opinion This is an appeal from a money judgment in favor of plaintiffs and against defendants Constantine Pappadopoulos and Metron Enterprises, Inc., awarded in an action for breach of contract, breach of fiduciary duty, misappropriation of partnership property and unjust enrichment. 1 Following a court trial, a judgment for $315,958 was entered against defendants. By subsequen...
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Opinion Marlowe Hill appeals from convictions of mayhem and aggravated assault. He contends the trial court gave an erroneous instruction pertaining to the mayhem count and improperly imposed the aggravated term in sentencing on that count. We affirm the conviction but remand for resentencing. Statement of the Case Appellant was charged by information filed on May 13, 1992, with...
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23 Cal.App.4th 1576 (1994) 28 Cal. Rptr.2d 897 THE PEOPLE, Plaintiff and Respondent, v. VINCENT GUTIERREZ, Defendant and Appellant. Docket No. B066651. Court of Appeals of California, Second District, Division Seven. April 1, 1994. *1578 COUNSEL Catherine Fancher Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson...
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Opinion Appellant was arrested on suspicion of burglary. While appellant was seated in the patrol car, the arresting officer asked him several questions regarding his identity in order to fill out a form required for booking. Appellant told the officer his name was Larry Quesenberry and he was born November 6, 1968. When the officer ran a computer check of the name and date of birth, the ...
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*1682Opinion Eli azar Sanchez appeals after a jury convicted him of two counts of robbery. He asserts the case must be remanded for resentencing because the trial court failed to state reasons for imposing consecutive, rather than concurrent, sentences. We affirm. Facts and Procedural History Jatindergit Singh testified that on February 15, 1992, he was working at a Quik Stop Store on Lei and Road...
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Opinion An employer, cited at noon for a failure to have workers’ compensation insurance coverage for its employees, complains that the statutory penalty should not have been imposed because, later the same day, a policy was finally obtained. We disagree. Facts Woodline Furniture Mfg. Co., Inc., which is owned by Yan Kats and his family, employs 131 people to manufacture oak fur...
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Opinion Blue Skies Country Club, Inc. (defendant), has appealed from a postjudgment order which purported to interpret the provisions of a stipulated judgment entered into in 1977 (hereinafter, the 1977 judgment), which delineated the respective rights of defendant and Hi-Desert County Water District (the District) in the water of the Warren Valley Basin. Such interpretation operated to i...
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*1716 Opinion The City of Chula Vista (City) appeals a judgment 1 dismissing its action after the court sustained demurrers by the County of San Diego (County) and Appropriate Technologies II, Inc. (Aptec) without leave to amend. The City had petitioned for writ and other relief after the County approved an agreement allowing Aptec to continue to operate its hazardous waste transfer and tre...
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23 Cal.App.4th 1459 (1994) 28 Cal. Rptr.2d 734 TAHOE KEYS PROPERTY OWNERS' ASSOCIATION, Plaintiff and Appellant, v. STATE WATER RESOURCES CONTROL BOARD et al., Defendants and Respondents. Docket No. C012562. Court of Appeals of California, Third District. March 30, 1994. *1465 COUNSEL Feldman, Shaw, DeVore, Lewis S. Feldman and Deborah A. Palmer for Plaintiff and Appellant. Daniel E. Lungren, Att...
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Opinion Introduction On May 28, 1991, appellants Guillermo Bustos and Michael Loretto robbed and murdered Jacqueline Kirkham in a women’s restroom on Zuma Beach in Malibu. Appellants were under age 18 at the time, but were tried as adults. Appellants waived jury trial and, in light of confessions by each implicating the other, were tried separately by the court. As to Bustos, wh...
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Opinion On the People’s appeal, we find the search of defendant Margarito Espinoza Guajardo was incident to a lawful arrest and *1741therefore reverse the order dismissing the information charging him with one count of possessing cocaine base for sale. Facts Los Angeles County Sheriff’s Deputy Steve Kim and his partner stopped in front of a house while they were on patrol in an area Kim knew to ha...
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*1810 Opinion Francine Y. Pender and Gisele Pender (the Penders) appeal a summary judgment on their first amended complaint for malicious prosecution against Irene Radin. The Penders were among three defendants in Radin’s lawsuit for breach of contract, fraud and misrepresentation that was settled when the third defendant paid Radin $25,000 and all parties agreed to waive any cla...
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*15 Opinion Plaintiff appeals from an order denying his petition to compel arbitration of an underinsured motorist insurance claim. The trial court concluded the claim is barred by the statute of limitations set forth in Insurance Code section 11580.2, subdivision (i). (Further statutory references to sections of an undesignated code are to the Insurance Code.) Plaintiff contends...
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Opinion Lisa M. Wagy (plaintiff), individually and as guardian ad litem, sued James Franklin Brown and Ethel Brown (defendants) for personal injuries to herself and her minor children arising from an automobile accident. In their answer defendants denied negligence and asserted plaintiffs contributory negligence. In response to plaintiffs request for admissions (Code Civ. Proc., § 2033), defe...
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Opinion David Michael Murray appeals from the judgment entered following his resentencing resulting from a remand after his earlier appeal. Murray was sentenced for several theft-related felonies and misdemeanors. Murray received an aggregate sentence exceeding that which could have been imposed under the double-the-base-term (DBT) limitation (Pen. Code, § 1170.1, subd. (g)) 1 had all the cha...
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23 Cal.App.4th 1839 (1994) 29 Cal. Rptr.2d 120 CSE INSURANCE GROUP et al., Plaintiffs and Appellants, v. NORTHBROOK PROPERTY AND CASUALTY COMPANY, Defendant and Respondent. Docket No. B063151. Court of Appeals of California, Second District, Division Four. April 11, 1994. *1841 COUNSEL Ramsey, Prestholt & Holmberg and Devera L. Petak for Plaintiffs and Appellants. Clausen & Campbell, Lavi...
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*1665 Opinion Plaintiff, Robert Owens (Owens), was injured in 1988 while working as a drywall installer for Elmer Elia Drywall (Elia), an independent subcontractor on a construction project for which defendant, Giannetta-Heinrich Construction Company (Giannetta), served as the general contractor. Owens filed a claim for workers’ compensation benefits and eventually received a tot...
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*25 Opinion A jury found Michael Gomez guilty of robbery with personal use of a firearm (Pen. Code, 1 §§ 211, 12022.5, subd. (a)) and being a felon in possession of a firearm (§ 12021, subd. (a)). In a bifurcated proceeding the trial court found true allegations that Gomez was twice previously convicted of serious felonies (§§ 667, subd. (a)/l 192.7, subd. (c)(18) and (c)(27); 667, subd. (a...
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Opinion These are cross-appeals from the judgment in an action against an insurer to recover on a prior automobile liability judgment, under Insurance Code section 11580, subdivision (b)(2), and for damages in tort. 1 The defendant insurers appeal from the judgment on the policy solely on grounds it awarded excessive interest. Plaintiff appeals from the judgment *1851 ...
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Opinion Sharon J. Hoch (decedent) was killed when she was ejected from her 1987 Ford Bronco II, which was equipped with seat belts made by Allied-Signal, IncVBendix Safety Restraints Division (Allied-Signal), during a single-vehicle accident. Her parents, Norma and Carl J. Hoch, *54 sued Ford Motor Company (Ford), Allied-Signal and others for wrongful death, alleging negligen...
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Opinion Ponderosa Homes, Inc. (Ponderosa), appeals from a judgment in favor of respondents, the City of San Ramon (the City) and the San Ramon City Council (the City Council), entered upon the granting of respondents’ motion for judgment on the pleadings. The issues raised on the motion and on this appeal are the date upon which the applicable statute of limitations commenced running, and...
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*81 Opinion Deborah Terzian, Janice Brown, Cheryl Lopez, Michael Brown and Kenneth Brown appeal from a judgment in favor of respondent County of Ventura (County). They contend that the trial court abused its discretion in dismissing defendant California Forensic Medical Group, Inc. (Group) pursuant to Code of Civil Procedure section 583.420, subdivision (a)(1), and incorrectly de...
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Opinion Plaintiff Gene A. Tabachnick appeals the order dismissing his suit against defendant Ticor Title Insurance Company following Ticor’s successful demurrer based on the statute of limitations. *72 Facts 1 On July 18, 1986, Tabachnick purchased a condominium unit in New Jersey (the Property) in which a tenant then resided. According to Tabachnick, the seller...
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*128 Opinion In this matter we are called upon to decide a simple issue: when an injured employee sues a third party defendant (defendant), not his employer, in tort, and the defendant wishes to raise the employer’s concurrent negligence as the basis for an offset against any judgment against it, may the defendant file a cross-complaint against the employer alleging entitlement t...
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*90 Opinion Appellants seek reversal of an order dismissing their complaint based upon violation of the five-year statute within which a matter must be brought to trial. (Code Civ. Proc., § 583.310.) 1 They also contend that the trial court abused its discretion in failing to grant two ex parte applications to reset trial prior to the running of the five-year statute. ...
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Opinion Petitioner, defendant in a criminal prosecution for murder of Sandra Zarate, challenges an order of the trial court barring him from litigating the issues of identity and intent on the ground that a prior final judgment of conviction for attempted murder of Zarate1 collaterally estops him from doing so, leaving for the jury only the issue of whether petitioner’s shooting of Zarate caused h...
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*119 Opinion NARES, J. John J. Riggs, O.D. (Riggs) and the Chicano Community Health Center doing business as Logan Heights Family Health Center (Center), appeal from an order granting a new trial to Patrick Romero (Romero) after a trial in which the jury found Center’s employee Riggs had been negligent as to Romero, but also found such negligence had not caused Romero’s eyesi...
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*182 Opinion Appellants are customers of respondent East Bay Municipal Utility District (the District) who seek to invalidate the water rate structure design enactéd by the District in April 1991 as part of a comprehensive drought management program. Appellants petitioned for writ of mandate and sought declaratory and injunctive relief. The petition alleged: (1) the inclining blo...
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Opinion HUFFMAN, Acting P. J. Petitioners John S. Edmunds, attorney at law, a Hawaii law corporation; his Hawaii law partnership, Edmunds, Verga, Van Etten & O’Brien; and Edmunds as an individual (collectively, Edmunds) bring this petition for writ of mandate to require the superior court to vacate its order denying Edmunds’s motion to quash service of summons and complaint, and enter...
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Opinion Kenneth W. Thompson, a respondent City of Los Angeles Department of Transportation (DOT) employee, applied for a job with the city’s general services department (GSD). Despite Thompson’s first place eligibility list ranking, GSD did not hire him. Pursuant to the governing collective bargaining agreement, or memorandum of understanding (MOU), Thompson filed a grievance, claiming GS...
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*273 Opinion This case arises out of the death of Candice J. Stevenson’s father in the 1989 Loma Prieta earthquake in San Francisco. Stevenson sued the San Francisco Housing Authority (SFHA) and the owners of the building in which her father lived at the time of the injury which led to his death, alleging various causes of action. Stevenson appeals from the trial court’s dismissa...
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Opinion Facts and Proceedings Below This is an appeal after remand following a prior decision of this court whereby we instructed the trial court to resentence the defendant either to 25 years to life or to life without possibility of parole and to stay the other sentence. On remand, the trial court sentenced defendant to life without possibility of parole and stayed the 25 years to life sent...
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*240 Opinion EPSTEIN, Acting P. J. Saul Daniel Valdez appeals from judgment of conviction of residential burglary. (Pen. Code, § 459; all further statutory references are to the Penal Code unless otherwise indicated.) In the published portion of the opinion, we reject his argument that the trial court erred in imposing a one-year enhancement for a prior felony for which he se...
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Opinion ABS Institute, Colby Plastics, and Polaris Pipe Company, Inc., filed a complaint for declaratory and injunctive relief challenging a City of Lancaster ordinance adopted to prohibit the use of ABS cellular pipe. 1 Judgment was entered in favor of the City and the Institute appeals. We affirm. Background A. Until the 1970’s, every city and county in Califor...
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*208 Opinion On a motion to dismiss this appeal, we point out an inconsistency between rule 2(b) and rule 391 of the California Rules of Court which creates uncertainty as to the date of entry of an appealable order, and we urge the Judicial Council to address the problem. This wrongful death action was submitted to judicial arbitration, which resulted in denial of plaintiff’s claim. Plaint...
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*352 Opinion The People petition for a writ of mandate after the court denied Johnaton Sampson George’s (George) motion to represent himself in this capital case. The People contend the court based its denial on the impermissible grounds George is a security risk and seeks self-representation only to acquire privileges in jail. Under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 5...
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Opinion Corporations Code section 317, subdivision (e)(4), permits a court to authorize a corporation to indemnify its agent against a judgment arising from the agent’s reasonable and good faith acts on behalf of the corporation. Such an order may be made in “[t]he court in which the *332 proceeding [against the agent] is or was pending . . . .” (Corp. Code, § 317, subd. (e)(...
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Opinion I Procedural and Factual Background Plaintiff and appellant, Michael Parada (Parada), appeals from the dismissal of his second amended complaint after the trial court sustained defendant’s and respondent’s, City of Colton and Community Development Department of the City of Colton (Colton), demurrer to that complaint without leave to amend. Parada filed an initial co...
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Opinion Appellant, Cyrus Mayers (Mayers), appeals from a denial of a motion to vacate judgment and quash writ. Appellants, Cyrus Mayers and Albert Arouh (Arouh), both appeal from an award of sanctions granted after the trial court denied the motion to vacate. We find that the trial court lacked jurisdiction over Mayers and that counsel’s appearance on his behalf in the suit was unauthorized. We...
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Opinion Appellant Budget Rent-A-Car Corporation (Budget) appeals from a judgment awarding damages of $291,000 in favor of Charlotte Bly-Magee (Bly-Magee). The jury found that Budget was negligent in failing to register a vehicle rented by Bly-Magee and that this negligence resulted in her arrest and incarceration. The trial court limited Budget’s voir dire to the issue of agency and refus...
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*385 Opinion In Nat. Bellas Hess v. Dept, of Revenue (1967) 386 U.S. 753 [18 L.Ed.2d 505, 87 S.Ct. 1389] (Bellas Hess), and again in Quill Corp. v. North Dakota By and Through Heitkamp (1992) 504 U.S._[119 L.Ed.2d 91, 112 S.Ct. 1904] (Quill), the United States Supreme Court determined that the commerce clause of the Un...
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Opinion Brown & Bryant, Inc. (Brown & Bryant), appeals from a judgment dismissing its action against Hartford Accident & Indemnity Company, Fireman’s Fund Insurance Companies, and United States Fidelity & Guaranty Company (collectively Insurers) for failure to bring the action to trial within five years. (Code Civ. Proc., §§ 583.310, 583.360.) 1 It contends the five-year period...
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Opinion Agreeing with the analysis of the Third Appellate District in People v. Reed (1982) 135 Cal.App.3d 149 [185 Cal.Rptr. 169], we will hold that an enhancement pursuant to Penal Code 1 section 12022.3 for using or being armed with a firearm or deadly weapon during the commission of certain sex crimes can be imposed only when the defendant “personally” uses or is armed with the weapon...
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Opinion I. Introduction Defendant, Stevedoring Services of America, purports to appeal from the denial of a motion to dismiss in the nature of a request for judgment on the pleadings. We agree with plaintiffs that the order under review is not subject to review on direct appeal prior to trial. Accordingly, the appeal is dismissed. II. Procedural Background Plaintiffs, survi...
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Opinion Petitioner Regan Roofing Company, Inc. (Regan Roofing), joined by New Continental Tile and Marble Company, Inc. (New *429 Continental), brings this petition for writ of mandate to challenge the order of the trial court summarily adjudicating certain issues in this cross-action for contractual indemnity and related theories brought by Pacific Scene et al. (collectively...
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Opinion Appellant Subir Chaklader appeals (Pen. Code, § 1237, subd. (b)) from an order denying appellant’s petition for a writ of error coram nobis to vacate a judgment resulting from his guilty plea to assault with a deadly weapon with infliction of great bodily injury. Appellant contends that his guilty plea was induced by a promise that his sentence would run concurrently with his sentence...
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Opinion This is a wrongful death action stemming from a police shooting during the investigation of a domestic dispute. Plaintiffs appeal from a judgment for defendants following return of the jury’s special verdict finding no negligence. On appeal, plaintiffs contend the court erred in restricting discovery of the personnel files of the officer who fired the fatal shot and a former officer ret...
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Opinion Victor B. was declared a ward of the court (Welf. & Inst. Code, § 602) after being found in possession of a dirk or dagger in violation of Penal Code section 12020, subdivision (a).1 He contends the trial court erred in admitting his statement to police that he carried the instrument for “protection” because he had not been advised of his Miranda2 rights. He also contends that as a matter...
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Opinion An amended information charged defendant with petit theft with a prior petit theft (Pen. Code, § 666) and alleged defendant had served a prior prison term for vehicular manslaughter (Pen. Code, § 192, subd. (c)(3)) within the meaning of Penal Code section 667.5, subdivision (b). A jury convicted defendant as charged and defendant admitted the prior prison term allegation. Defendant was ...
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Opinion Petitioners Sea Horse Ranch, Inc. (the Ranch), and its president, Arbis “Al” Shipley, are charged by information with one count of involuntary manslaughter (Pen. Code, § 192, subd. (b)); the Ranch is also *450 charged with one count of willfully suffering a mischievous animal to roam at large with the result that it kills a human being (Pen. Code, § 399). 1 ...
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Opinion After entry of a judgment dissolving the marriage of Kathy Hyatt (plaintiff) and Jerry Hyatt (Hyatt) and disposing of the community property, plaintiff sought damages against defendants, beneficiaries of a trust deed executed during the marriage by Hyatt without plaintiffs knowledge or consent. The trust deed encumbered Hyatt’s interest in real property held in joint tenancy with ...
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*441 Opinion I. Introduction In this case we hold that a nonsettling personal injury defendant waives any right to an offset against a judgment for a calculated economic damages portion of a settling defendant’s pretrial lump-sum payment by failing to propose a special verdict which would permit such calculation by differentiating between economic and noneconomic portions of...
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Opinion When warranted by compelling governmental interests, a trial court may seal the court’s records of “personal juror *464 identifying information." (Code Civ. Proc., § 237, subd. (b).) 1 But “[n]otwithstanding Section 237, a defendant or defendant’s counsel may, following final adjudication of a criminal proceeding, request that the court provide personal juror information within the ...
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Opinion Appellant Soman Properties, Inc., sued respondent Rikuo Corporation alleging that respondent breached its duty to maintain the common areas of the parties’ adjacent commercial properties comprising a shopping center. The source of this duty was alleged to be a written document entitled “Declaration of Establishment of Protective Covenants, Conditions and Restrictions and Grants of...
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*533 Opinion The Bank of America N.T. & S.A. (Bank) appeals from the judgment entered on a jury verdict awarding $248,004.60 compensatory and $300,000 punitive damages against the Bank and in favor of S. C. Anderson, Inc. (Anderson). The Bank was the lender for the construction and development of two commercial building projects in Bakersfield. The borrowers and owners (developer...
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Opinion This appeal presents a single question regarding the interpretation of the Song-Beverly Consumer Warranty Act (the Act), Civil Code 1 section 1790 et seq. Specifically, we are asked to determine whether, in an action concerning a new motor vehicle, the buyer can recover civil penalties from the manufacturer for a willful violation of the Act if the manufacturer maintains a qualified t...
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Opinion The principal issue in this appeal is whether a private, voluntary association of psychologists is prohibited under the litigation privilege of Civil Code section 47, subdivision (b), or the doctrine of “quasi-judicial immunity,” from censuring one of its members for presenting false statements as a court-appointed expert in a child custody proceeding. We conclude the association ...
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Opinion Background Petitioner, The Housing Group (THG), Hugh B. Brewster Consulting Engineers, Inc., and Hugh B. Brewster (collectively Brewster) are among many defendants in a suit brought by the Homeowners Association of the Seaview Community and other named plaintiffs (collectively Homeowners). THG filed a cross-complaint 1 which sought indemnity from Brewster not only ...
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Opinion A jury convicted the defendant of a number of sexual offenses (which we need not detail) and kidnapping for the purpose of committing rape (Pen. Code, §§ 207, subd. (a); 208, subd. (d); undesignated section references are to this code). The jury also sustained numerous firearm enhancements. Sentenced to state prison, the defendant disputes not the acts of which he was convicted so much ...
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Opinion This appeal raises significant issues concerning the article of the Penal Code entitled “Disposition of Mentally Disordered Prisoners upon *895 Discharge” (Pen. Code, §§ 2960-2981) (hereafter the Mentally Disordered Prisoners Act, or the Act), and in particular Penal Code sections 2970 and 2972. 1 When defendant and appellant William R. Kirkland (defendan...
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Opinion Defendant Valley of California, Inc., doing business as Coldwell Banker Residential Real Estate of Northern California (Coldwell Banker), appeals from a judgment of the San Mateo County Superior Court awarding plaintiffs husband and wife, Shaucat and Jeannie S. Salahutdin, damages of $175,000 plus costs against Coldwell Banker. The trial court found that while representing plainti...
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Opinion Plaintiffs Concerned Citizens of South Central Los Angeles and Equal Rights Congress of Los Angeles, unincorporated associations, and Gwendolyn Cannon appeal from an order denying their petition for writ of mandate. 1 In their petition, plaintiffs sought to compel defendants Los Angeles Unified School District (District) and Board of Education of the City of Los ...
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Opinion Andrea L. appeals from the order of the juvenile court freeing her child, Baby Boy L., for adoption. The child, who was bom on August 7, 1989, was adjudicated a dependent child of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b) and (g) on September 11, 1989.1 On that same date, the child was removed from *600Andrea’s custody under section 36L 2 and reu...
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Opinion Koll-Irvine Center Property Owners Association and individual owners of units in the center (Koll-Irvine) appeal from the judgment against them following the order sustaining the demurrers of the County of Orange and Snafuel, Inc., without leave to amend. Koll-Irvine claims it has properly pleaded causes of action for both public and private nuisance arising out of the location an...
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*968 Opinion Pursuant to Welfare and Institutions Code section 707, 2 a minor 16 years of age or older may be determined unfit for treatment by the juvenile court and thereby relegated to disposition as an adult. In certain contexts prior cases have determined that once the juvenile court finds a minor unfit, it loses jurisdiction to process pending or future section 602 petitions. In this ...
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*625 Opinion I. Introduction This appeal arises from the unsuccessful attempt of plaintiffs in the trial court to preliminarily enjoin enforcement of defendant City of Agoura Hills’ (City) ordinance which regulates solicitation from persons traveling in vehicles on City streets (Ordinance). II. Contentions Appellants contend the Ordinance was adopted to p...
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Opinion Paul B. Nicholson and Michael L. Goldsberry were convicted of robbery and first degree felony murder. They appeal, *587 contending their unequivocal and unconditional motions to represent themselves should have been granted. We agree and therefore reverse and remand for a new trial. Facts Valentin Montesdeoca’s partially buried body was found during the early evening hours of Sept...
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Opinion Plaintiff Gary Cooper appeals from a summary judgment in his employment termination action against respondents S.E. Rykoff & Co., Rykoff-Sexton, Inc., and Sam Wiley. We reverse. Plaintiff s job was to repair commercial dishwashing machinery. After he was fired, he claimed breach of an implied agreement not to fire him without cause; breach of the implied covenant of good fait...
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Opinion In order to protect San Francisco Bay from further environmental degradation through filling and development, the Legislature created the San Francisco Bay Conservation and Development Commission (BCDC), and gave BCDC jurisdiction over all areas of the bay subject to “tidal action”—which for purposes relevant here the Legislature defined in Government Code 1 section 666...
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*976 Opinion Introduction Bank One Texas, N.A. 1 appeals from an order granting a motion to amend á judgment but denying the request that the amendment be entered nunc pro tunc as of the date of the entry of the original judgment. Statement of Facts Texas American Bank/Galleria secured a judgment in Texas against Sheldon L. Pollack (Pollack) and others o...
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*1046 Opinion FRANSON, J. * Pursuant to a plea bargain, defendant pleaded no contest to two counts of residential burglary on the condition two remaining charges would be dismissed and the prosecution would not oppose a commitment to the California Rehabilitation Center (CRC). Following denial of his motion to withdraw his plea, he was sentenced to an aggregate prison term exceeding six y...
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Opinion Introduction Plaintiffs,Hi-Top Steel Corporation, doing business as Weiner Steel Corporation, and Hiuka America Corporation appeal from a judgment on the pleadings in favor of defendants Bernard Lehrer, Sam Adíen and Aadlen Bros. Auto Wrecking, Inc. Statement of Facts 1 Plaintiff Hiuka America Corporation (Hiuka) exports scrap steel from Southern California....
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Opinion Introduction Metro Traffic Control, Inc. (Metro), and Shadow Traffic Network (Shadow) are competitors in the traffic reporting business. Each contracts with radio stations to gather and broadcast information about traffic conditions. In December 1991, Metro sued Shadow, alleging that Shadow was engaging in various business torts. 1 Each was represented by counsel...
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Opinion For a second time, appellant seeks a conditional use permit (CUP) for a nude dancing cabaret. The application is for the same location the cabaret formerly occupied in an unincorporated area of the county near the cities of Azusa and West Covina. In a published opinion filed in 1989, this court affirmed a denial of appellant’s prior CUP application for this property (Smith v. County of Los...
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24 Cal.App.4th 1012 (1994) 30 Cal. Rptr.2d 111 THE PEOPLE, Plaintiff and Respondent, v. ARTHUR ANTHONY SANCHEZ, Defendant and Appellant. Docket No. B071169. Court of Appeals of California, Second District, Division Seven. April 29, 1994. *1014 COUNSEL Bruce Eric Cohen, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Ch...
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Opinion Steven W. Bianco, in propria persona, appeals from the denial of his second amended petition for writ of mandate in which he challenged (1) generally, the authority of the California Highway Patrol (CHP) to determine which motorcycle helmets are approved and unapproved under the state’s mandatory helmet law (Veh. Code, 1 §§ 27802 and 27803) and (2) specifically, a bulle...
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Opinion Plaintiffs Stanley Brumer and Gloria Miriam Brumer appeal from a summary judgment in their wrongful death action against the City of Los Angeles. *986 This is a police pursuit case. Toraino Leon Young, a robber fleeing from police, caused a fatal crash with plaintiffs’ decedent, their son Martin Alan Brumer. (See People v. Young (1992) 11 Cal.App.4th 1299 [15 Cal.Rptr.2d 30].) P...
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Opinion Defendant’s sole argument on appeal is that the abstract of judgment must be modified to correctly reflect presentence custody. Factual and Procedural Background Defendant pled guilty to one count of kidnapping his ex-wife (Pen. Code, § 207, subd. (a)), 1 during which he intentionally inflicted great bodily injury (§ 12022.7), one count of assaulting his ex-wife with a deadly weap...
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Opinion This appeal is from a judgment that required Anwar Abdullah and Jamil Abdullah (Anwar, Jamil or appellants) to sell their stock in West Coast Laboratories, Inc., a family-owned corporation, back to the corporation pursuant to the provisions of Corporations Code section 2000. 1 Respondents are appellants’ brothers, Maurice Ovadia and Naim Abdullah (Maurice, Naim or respo...
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Opinion We hold that, under Labor Code 1 sections 139.5, 4850, and 4853, an injured municipal police officer is not entitled to receive a vocational rehabilitation maintenance allowance after the effective date of his or *1178 her disability retirement under the Public Employees’ Retirement System (PERS). Procedural History On August 20, 1991, Rocky D. Ri...
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Opinion Direct victim restitution is mandatory in all cases in which the victim has suffered economic loss as a result of the defendant’s criminal conduct and the defendant is denied probation. (Gov. Code, 1 § 13967, subd. (c).) The defendant in this case, Juan Valdez, was convicted of robbery upon his plea of guilty and was denied probation. He was ordered to pay a restitution fíne, but dire...
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Opinion Defendant, Golden Eagle Insurance Company, purports to appeal from a money judgment. Plaintiffs, Emma Rapp, Gloria Dimino, Florence Dimino and Steve Snyder, have moved to dismiss the appeal as untimely. We disagree and deny the dismissal motion. On December 22, 1993, judgment was entered in favor of plaintiffs and against defendant. On December 23, 1993, plaintiffs’ counsel s...
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Opinion In a personal injury action, plaintiff and respondent Elizabeth Triplett (Triplett) recovered a jury verdict against defendant Thomas Simko (Simko). After the verdict was entered, the court ordered that *1418 Simko’s insurer, appellant Farmers Insurance Exchange (Farmers) be added as an additional defendant, and then sanctioned Farmers over $15,000 for refusing to set...
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Opinion A plaintiff appeals from an order dismissing his action against two defendants. We affirm. *1432 Procedural Background In March of 1987, plaintiff Jim Dill filed a complaint seeking the recovery of damages for personal injuries for which the defendants were allegedly liable under theories of negligence and strict liability. Among the defendants named were Berqui...
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Opinion After pleading guilty to second degree murder, defendant Greg Avila moved to withdraw his plea on the ground that he had been misadvised regarding the length of the parole term he would be required to serve. Defendant appeals from the trial court’s denial of that motion, arguing that the court’s misadvisement violated an integral term of the plea agreement. We disagree and affirm the ju...
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Opinion A jury convicted appellant of nine counts of robbery (Pen. Code, 1 §211) and one count of discharging a firearm with gross negligence (§ 246.3), found true firearm allegations (§§ 12022.5, 12022, subd. (a)(1)), acquitted appellant of three counts of robbery, and could not reach a verdict on one robbery count (later dismissed). Appellant was sentenced to a 23-year, 8-mon...
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*1464 Opinion Introduction Defendants and appellants Bernard Roberts and Richard Talley appeal from judgments after a jury trial in which Roberts was convicted of multiple counts of robbery and attempted robbery and Talley was convicted of a single count of robbery. As to the robbery count on which both defendants were convicted, an allegation that property in excess of $25,000 was taken, w...
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Opinion Following a contested jurisdiction hearing, the trial court found true the only allegation in a subsequent petition under Welfare and Institutions Code section 602 that defendant possessed a firearm while on probation and in violation of an express probation condition prohibiting such activity (Pen. Code, § 12021, subd. (d)). Thereafter, and at the conclusion of a contested dispositiona...
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Opinion Introduction Defendants and appellants the City of Berkeley, its city council and board of adjustments (hereafter collectively the City) denied plaintiffs and appellants Mitri and Sonya Y. Saad (the Saads) a use permit for construction of a large single-family residence on their lot at 25 Del Mar Avenue. The Alameda County Superior Court granted the Saads’ petition for wr...
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Opinion Petitioner, the United Teachers—Los Angeles union, sought a writ of mandate in the superior court to compel respondents, Los Angeles Unified School District, Board of Education of the Los Angeles Unified School District and Irene Yamahara, associate superintendent of personnel, to grant part-time status to eligible employees pursuant to regulations adopted by respondents and incor...
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Opinion Convicted by jury of first degree murder (Pen. Code, 1 §§ 187, 12022, subd. (a)(1)) and sentenced to state prison for 26 years to life, appellant contends prosecutorial misconduct, instructional errors, and an abuse of sentencing discretion require a reversal of the judgment. We find no error and affirm. Procedural Background Jose Walter Franco (appellant), Ge...
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24 Cal.App.4th 1473 (1994) 30 Cal. Rptr.2d 469 NEW HAVEN UNIFIED SCHOOL DISTRICT, Plaintiff and Appellant, v. TACO BELL CORPORATION, Defendant and Respondent. Docket No. A058609. Court of Appeals of California, First District, Division One. May 11, 1994. *1476 COUNSEL Quaresma, Benya, Hall, Connich, O'Hara & Nixon and David M. O'Hara for Plaintiff and Appellant. Tobin & Tobin and Martin H...
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Opinion Robert and Charlene Jioras (appellants) purchased a house built by a partnership composed of four individuals. 1 Appellants later sued the partners, claiming the house was defective. The partners sought coverage under certain policies issued by respondent State Farm Fire and Casualty Company (insurer). Insurer accepted the defense, subject to a reservation of rights, an...
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*1546Opinion In this appeal we address the question of whether dismissal of a dependency action at the dispositional hearing renders the case moot, preventing review of findings upon which continuing orders for custody and visitation are based. We conclude it does not Wayne C., the minors’ father, appeals from juvenile court orders following a dispositional hearing establishing custody and visita...
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Opinion Appellant, Buena Engineers, Inc., was one of over 100 defendants involved in complex litigation regarding liability for a toxic disposal site in Ventura County. After three years of discovery and pretrial *1502 motions, appellant was involuntarily dismissed from the action. Appellant requested an award of costs and attorney fees under Code of Civil Procedure section 1...
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24 Cal.App.4th 1521 (1994) 29 Cal. Rptr.2d 894 SCOTT CALDWELL, Plaintiff and Appellant, v. METHODIST HOSPITAL OF SOUTHERN CALIFORNIA, Defendant and Respondent. Docket No. B074887. Court of Appeals of California, Second District, Division Seven. May 11, 1994. *1523 COUNSEL Stephen F. Danz and Adrian Gragas for Plaintiff and Appellant. Herzog & Fisher, James P. Herzog and Kimberly M. Talley for...
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Opinion In this petition for writ of mandate, the State of Oregon, Oregon State University, and Oregon Health Sciences University and Clinics challenge the trial court’s denial of their motion to quash (Code Civ. Proc., § 418.10) based on lack of “minimum contacts” and comity. Under the particular facts presented, we find personal jurisdiction over petitioners is warranted, and deny the p...
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Opinion NN Investors Life Insurance Company, Inc. (NN), National Association for the Self-Employed (NASE), Kevin E. Winn, Winn & Associates, Bob Winn, United Group Association, Inc., and Aegon USA, Inc. (referred to collectively as defendants, except where individual identification is necessary), appeal from an adverse judgment following jury trial of an action brought by Mary Jane Hadlan...
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Opinion Appellant Benjamin Padayao was convicted of the torture murder of a victim, and was sentenced to life without possibility of parole. He contends: (1) The trial court’s rulings on the proper scope of cross-examination violated his constitutional rights to cross-examine four witnesses, and to present a defense to the charges; (2) there was insufficient evidence to support the jury’s finding ...
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Opinion A petition was filed alleging that Aontae D. (appellant) came within the provisions of Welfare and Institutions Code 2 section 602 by having committed a robbery and having personally used a firearm in committing that crime. The matter was tried before referee Dumanis, sitting as a temporary judge pursuant to stipulation. She found the robbery charge and firearm use to be true and sust...
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Opinion In this case, we are called upon to decide if the reciprocal discovery statute, Penal Code section 1054.3, subdivision (a), requires a defendant to disclose the results of standardized tests taken by a psychologist where the psychologist was identified as a defense expert, the psychologist relied on the test results in forming an opinion and his opinion was disclosed to the distri...
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Opinion Here we hold that the transferor of an interest in real property is not liable for latent defects in the property which the transferor did not know about, and had no reason to believe existed. *1686 Plaintiff Linda Lorenzen-Hughes appeals from the summary judgment granted defendant-respondent, MacElhenny, Levy & Co. We affirm. Facts On April 19, 1990, Loren...
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Opinion In a partition action of the husband’s military retirement benefits, the trial court ordered that in order to receive her share of the *1704 benefits, the wife had to waive further spousal support, which she did. Congress later took away her interest in her ex-husband’s military retirement benefits, Here we affirm the trial court and hold that the trial court had jurisdiction to order...
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Opinion Plaintiff and appellant Robert R. Davenport appeals from the judgment denying his petition for a writ of administrative mandamus (Code Civ. Proc., 1094.5) to review the decision of defendant and respondent California Unemployment Insurance Appeals Board (CUIAB or Board) which denied Davenport unemployment insurance compensation. *1697 Davenport was a student at the U...
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Opinion Appellant, Ondrea M. Lee, appeals from a judgment of conviction of criminal offenses. She contends there was insufficient evidence to support the finding she was competent during the preliminary examination and therefore testimony from that hearing should not have been *1775 introduced at trial. She further argues counsel was ineffective for failing to declare a doubt...
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Opinion In consolidated actions for dissolution of marriage the trial court awarded judgment to wife based on a marital settlement agreement and ordered the judgment effective nunc pro tunc. In a subsequent order, the trial court awarded attorney fees to wife. We affirm. Facts and Proceedings Below We will refer to appellant, Joel Tamraz, as “husband” and respondent, Barbara Tamraz, as “wif...
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Opinion Steven A. Booska and his wife, Gloria Booska (hereafter Booska), appeal from a summary judgment entered against them in their action against their neighbors, Ramanbhai B. and Savitriben R. Patel, and the Patels’ employees (hereafter Patel). We find that there are triable issues of material fact and reverse. Factual and Procedural Background We approach an appeal from a s...
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Opinion Plaintiff, City and County of San Francisco (city), appeals from an order modifying the amount of child support and ordering blood tests of the child, her mother and defendant, Mark Stanley. In January of 1987 the city brought a complaint for child support, reimbursement of public assistance, and establishment of paternity against Mark Stanley (Stanley) on behalf of a little ...
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Opinion In this case, we consider the facial validity of a Santa Monica Rent Control Board regulation which prohibits landlords who purchased rental property after the inception of rent control from seeking an adjustment in base rents. Appellant Santa Monica Rent Control Board (the Board) contends that the regulation draws a rational distinction between those who *1733 purcha...
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Opinion Appellant, landlord, appeals from a judgment in favor of tenant in an unlawfiil detainer action. The trial court found that the amount demanded in the notice to pay rent exceeded the amount owed and hence was deficient. On that basis, the court held for tenant. Landlord contends (1) the court erred in awarding judgment to tenant since the latter failed to tender the amount of rent ackno...
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Opinion In this action, plaintiffs are suing petitioner for legal malpractice in the settlement of their suit for property damage against the City of Palos Verdes (hereafter the City). Petitioner demanded production of all documents containing the terms and conditions of plaintiffs’ recovery from their own insurer for the same property damage that was the subject of the suit against the C...
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Opinion Plaintiff Susan Cousins appeals from an order of dismissal entered after the superior court sustained a demurrer to her petition for writ of mandate and damages challenging her termination by defendant Weaver-ville Elementary School District (District). Cousins, a certificated probationary employee of District, asserts that because her termination was based on economic considerati...
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*3 Opinion In 1974, the developer of the Broadmoor homes recorded a declaration of covenants, conditions and restrictions (CC&Rs) which provided “no business or commercial activity shall be maintained or conducted upon any of the [Broadmoor homes].’’ In 1990, appellants Robert N. Nelson, individually and as trustee of the Robert N. Nelson and Elsie M. Nelson Revocable Living Trus...
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Opinion Stacy Z. appeals an order after a selection and implementation hearing under Welfare and Institutions Code1 section 366.26 terminating her parental rights to minor child Daniel D. and referring him for adoption. Stacy contends delay resulting from dilatory tactics by the San Diego County Department of Social Services (the Department) violated her right to custody and Daniel’s extended fami...
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*66 Opinion David Allen Phillips appeals a judgment of conviction entered upon his negotiated plea of nolo contendere to one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and one count of being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)). On appeal, defendant contends that an order requiring him to pay probation ...
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Opinion WALLIN, J.—Golden West Baseball Company (GWBC), which owns the California Angels baseball team, sued the City of Anaheim (Anaheim) when Anaheim issued a conditional use permit for Anaheim Stadium Associates (ASA) to construct an office complex on part of the parking lot of Anaheim Stadium. GWBC claimed the proposed development violated the terms of its *19 “lease” ...
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Opinion Appellant was charged with two counts of conspiracy (Pen. Code, § 182, subd. (a)(1)): conspiracy to transport heroin in violation of Health and Safety Code section 11352, subdivision (a); and conspiracy to purchase/possess a controlled substance for sale in violation of Health and Safety Code section 11351. It was alleged he was armed with a firearm in the commission of the charged offe...
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Opinion Klee Green Mathews was convicted in a jury trial of exhibiting a firearm in the presence of a peace officer (Pen. Code, § 417 subd. (c), formerly subd. (b)), a lesser and necessarily included offense of assault upon a peace officer with a firearm. (Pen. Code, § 245 subd. (d)(1)). Probation was granted upon certain terms and conditions. Prior thereto, he unsuccessfully brought a motion t...
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Opinion This appeal challenges the constitutionality of Revenue and Taxation Code 1 section 97.03, subdivision (c), which reallocates a percentage of property tax revenues from special districts to each county’s Educational Revenue Augmentation Fund. 2 Eight fire protection districts, a municipal improvement water district which provides fire protection services base...
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25 Cal.App.4th 102 (1994) 30 Cal. Rptr. 486 GERALD SANTANTONIO, Plaintiff and Appellant, v. WESTINGHOUSE BROADCASTING COMPANY, INC., et al., Defendants and Respondents. Docket No. B070149. Court of Appeals of California, Second District, Division Seven. May 25, 1994. *108 COUNSEL Inman, Weisz & Steinberg, Drew E. Pomerance and Hali E. Ziff for Plaintiff and Appellant. Hill, Farrer & Burri...
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Opinion Appellants are three tenured Humboldt State University professors who were laid off after 10 to 22 years of teaching. They filed suit against California State University (CSU), Humboldt State University, the Trustees of the California State University and various individuals (the university defendants) and the California Faculty Association (CFA) (an employee organization that rep...
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*244 Opinion The issue presented in this case is whether an attorney’s duty to release all “client papers and property” to a former client upon request (rule 3-700, Rules Prof. Conduct, hereafter rule 3-700) 1 requires disclosure of the attorney’s “absolute” work product. (Code Civ. Proc., 2018, subd. (c).) 2 We conclude, on the facts presented, that petitio...
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Opinion A jury convicted Leon Richard Franklin of one count of continuous sexual abuse of a child under the age of 14 with substantial sexual contact (Pen. Code, §§ 288.5, 1203.066, subd. (a)(8)) and he was sentenced to 16 years in state prison. He appeals, contending that he was prejudiced by the exclusion of evidence relevant to the contested issues in this case and that there is no fac...
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Opinion Marina Green Homeowners Association (the Association) filed a complaint against State Farm Fire and Casualty Company (State Farm). As *202 relevant here, the complaint stated several causes of action, each was premised on a claimed breach of duty by State Farm to provide earthquake insurance to the Association. The superior court granted summary judgment to State Farm...
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Opinion In this action for rescission of a contract to purchase an automobile, the trial court found in favor of respondent RBB, Inc., doing business as Ferrari of Los Gatos, on both appellant’s complaint and respondent’s cross-complaint for breach of contract. Appellant contends the trial court misinterpreted Vehicle Code section 11713, subdivision (p), which restricts a dealer’s collect...
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Opinion A commercial grower purchases young peach trees from a nursery and plants them. The trees eventually exhibit symptoms of a disease and are determined to be diseased. The grower sues the nursery. He contends that the trees were already diseased when he purchased them, and that they were not healthy trees as warranted by the seller. If the grower can prove that the trees were diseas...
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Opinion This case concerns whether a signatory to a contract with an attorney fee provision, who is sued by a nonsignatory for breach of that contract, is entitled to attorney fees if the signatory is the prevailing party. Defendant and appellant the City of Pasadena (the City) appeals from that portion of a judgment against plaintiff and respondent Real Property Services Corp. (RPS) deny...
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Opinion After months of harassing his ex-girlfriend, appellant Thomas John Heilman went to her place of employment in a rental car and waited for her to arrive. When the hapless victim arrived, Heilman confronted her with a loaded pistol, shot her in the stomach at point-blank range, ripped the public phone from the wall so she could not call for help, and fled. Following a court trial, Heilm...
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Opinion . Defendant Wayne Conway was convicted by jury of first degree burglary (Pen. Code, § 459). The trial court found true the allegations that he had been convicted previously of two serious felonies (Pen. Code, § 667, subd. (a)) and had served prison terms for five felony convictions (Pen. Code, § 667.5, subd. (b)). Defendant was sentenced to a prison term of 21 years for the burglary and...
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Opinion Defendant was convicted in a court trial of first degree burglary. He raises two issues on appeal: (1) whether the prosecution exercised due diligence to obtain the presence of its chief witness at trial; (2) whether defendant’s entry through a locked gate onto an outdoor stairway constitutes burglary. Facts The Offense On September 8,1992, between 2 a.m. and 3 a.m., Richard Lea...
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Opinion Petitioner, Debbie Reynolds Professional Rehearsal Studios, seeks a writ of mandate directing the superior court to set aside an order denying its motion for judgment on the pleadings. Code of Civil Procedure, section 340.1 1 extends the statute of limitations for a civil action based on childhood sexual abuse. We are asked to determine whether the tolling provision of that statute ap...
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Opinion Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91, 96 S.Ct. 2240] holds that once an arrestee chooses to remain silent after being admonished pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], the prosecution cannot use the fact of that silence to impeach an exculpatory story told for the first time at trial. The primary issue presented is w...
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Opinion Gary Joe Wiley appeals a judgment in which he was convicted of kidnapping for ransom (Pen. Code, 1 § 209, subd. (a)), kidnapping for robbery (§ 209, subd. (b)), possessing a firearm by a felon (§ 12021, subd. (a)), and three counts of robbery (§211) with five weapon enhancement allegations (D016970), a separate judgment convicting him of being a felon in possession of a firearm (§ 120...
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Opinion After being found ineligible for pretrial drug diversion, defendant Kelly Jean Brackett was convicted in the Placer County Municipal Court of the misdemeanor offenses of being under the influence of a controlled substance (Health & Saf. Code, § 11550) and trespassing (Pen. Code, § 602, subd. (j) [all subsequent statutory references are to the Penal Code unless otherwise indicated]...
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Opinion May operators of medical buildings limit acceptable tenants to medical doctors or do statutory or common law prohibitions require them to lease space to other health care practitioners, in this instance, a podiatrist, or even the world at large? We conclude under the facts presented here, no legal requirement compels landlords to accept tenants who are not medical doctors. Re...
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Opinion James S. McKeown III appeals an order reestablishing a conservatorship of his person after the trial court denied his motion to dismiss the reestablishment petition for lack of jurisdiction. McKeown also contends the trial court erred in instructing the jury regarding expert testimony. We affirm. Factual and Procedural Background A one-year conservatorship for McKeown was established on A...
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*1796 Opinion Applicant Paul S. Nash, a workers’ compensation judge, filed four applications alleging cumulative and specific industrial injuries from May-1972 to May 28, 1987, to his eyes, hearing, head, back, upper and lower extremities, left hip, right shoulder, psyche, and cardiovascular system. The four cases were consolidated for hearing, and independent medical examiners (...
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Opinion Douglas Bruce Jones appeals the sentence imposed for involuntary manslaughter on remand after his previous appeal. He challenges the trial court’s denial of probation and its imposition of the middle prison term and a greater restitution fine than previously imposed. Our published discussion concerns only the fine issue. Other than to modify the restitution fine, we affirm. F...
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Opinion Defendant, Anthony Jasso, was charged in count I with a lewd and lascivious act upon a child of 14 years, a felony, in violation *593 of Penal Code section 288, subdivision (c); 1 in count II with oral copulation with a person under the age of 16 years, a felony, in violation of section 288a, subdivision (b)(2); in count III with oral copulation with a person under the age of 14 yea...
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*656 Opinion The trial court overruled a demurrer by cross-defendant Elias Shahvar to a libel claim in a cross-complaint by ASP Computer Products, Inc., Amnon Even-Kesef, Ellen Sigal, and Gerald Sigal (cross-complainants). Shahvar seeks a writ of mandate. At issue is whether Shahvar was privileged under Civil Code section 47 to transmit a facsimile copy of a complaint to a newspa...
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Opinion Anthony Alfred Ciani (Ciani) appeals from a judgment which denied his request for reimbursement of the attorney fees he incurred in a lawsuit and in a postlitigation administrative appeal. Both his lawsuit and his administrative appeal were directed toward preventing the destruction of the so-called “Green Dragon Colony,” which he believed should be preserved as part of the archit...
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Opinion This appeal involves the application of the so-called in-law inheritance statute, former Probate Code section 229, 1 to the distribution of the estate of Jess Stanley Newman, who died on July 29, 1983. Cecil C. Finn, a nephew of Jess’s predeceased wife Frances Elizabeth Newman, filed a petition alleging Jess’s entire probate estate should go to Frances’s blood relatives...
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Opinion Plaintiff Alta California Regional Center (Alta) is a defendant in consolidated actions pending in Placer County Superior Court. In that litigation, a disabled person, Elizabeth A., and her parents, Gerald and Mary A., seek recovery for personal injuries arising from a sexual assault on Elizabeth which allegedly resulted from Alta’s negligent placement, supervision, entrustment, c...
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Opinion Brenda K. appeals from juvenile court dispositional orders adjudging her minor children dependents and removing them from her custody. The mother’s alcohol abuse and emotional problems are at the root of these proceedings. On appeal, she contends her problems have not adversely affected her children and therefore the juvenile court’s findings and orders are unjustified. We will affirm. On ...
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Opinion Plaintiffs Arnold R. Abrams, M.D. (plaintiff or Dr. Abrams) and Arnold R. Abrams, M.D., a professional corporation (professional corporation or medical corporation) appeal from an order denying their request for a preliminary injunction. Plaintiffs sought an injunction prohibiting the defendant St. John’s Hospital and Health Center (hospital) from terminating a contract between th...
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Opinion Defendants John Frank, in his capacity as Director of the Humboldt County Department of Health and Social Services, and the Humboldt County Board of Supervisors (the County) appeal from the trial court’s order granting the motion of plaintiffs Welfare Rights and eight individuals (plaintiffs) to enforce a consent decree. 1 The County asserts that a 1992 statutory amendm...
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Opinion This appeal arises from a judgment for the prospective buyers, Abdul Karim Al-Husry and his son Ghassan Al-Husry (collectively the Al-Husrys, or the buyers), of a minimarket business—including the real property on which the market was located, and an off-sale liquor license for the business, together with the liquor inventory—against the prospective sellers, Nilsen Farms Mini-Mark...
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Opinion I. Introduction This appeal challenges the constitutionality of a statute making it a crime to burn a cross on the private property of another for the purpose of terrorizing the owner or occupant or in reckless disregard of that risk. We uphold the statute, concluding it is neither overbroad nor vague, is not an impermissible content-based prohibition on speech, and does not ...
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Opinion Plaintiff and appellant Robert A. White appeals from a summary judgment in favor of defendant and respondent Southern California Edison Company (SCE). 1 Plaintiff was injured in a motor vehicle collision which occurred at night in an intersection near an inoperative streetlight owned and maintained by SCE. We conclude SCE owed no duty to plaintiff to maintain the street...
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Opinion In these consolidated appeals, Susan C. and movants Nancy B. and Aleda D., appeal from a final judgment granting the petitions of respondent Paula C. for termination of Susan’s parental rights and for a stepparent adoption, and denying the motion of movants to intervene. Susan also appeals from an earlier order barring her participation in the hearing on the petitions. Because we ...
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Opinion I. Introduction In this case we hold that claims against an employer under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) for physical disability discrimination based on a work-related injury are preempted by the exclusive remedy provisions of the workers’ compensation law (Lab. Code, §§ 3600, 3601, 3602). II. Background Jacqueline Langridge was employed by the Oa...
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Opinion In this petition for writ of mandate, petitioners challenge the grant of defendant corporation’s motion to change venue. The issue presented is whether a domestic corporation’s designation of the location of its “principal business office” in its annual domestic stock corporation statement filed with the Secretary of State conclusively fixes the corporation’s “principal place of ...
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Opinion Stephanie Lynne Kelley appeals from a judgment of paternity in favor of Paul Henry Comino in his action to establish a parental relationship with Joshua Paul. We conclude the court properly (1) refused to *681 apply the conclusive presumption of Evidence Code former section 621 1 to establish the paternity of Stephanie’s husband, and (2) found Paul to be a presumed father under Civi...
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*428 Opinion Frank W. Bellows and Frank W. Bellows, Inc. (collectively Bellows), appeal from summary judgments the trial court entered in favor of respondents Aliquot Associates, Inc. (Aliquot), Gary Balsdon, the law firm of Carroll, Burdick & McDonough (Carroll, Burdick), and individual attorneys Jack T. Friedman and Wallace E. Smith. Bellows sued respondents for malicious prose...
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Opinion Regional Steel Corporation (Regional) petitions for a writ of mandate after the court denied its motion for summary judgment in *527 this action arising from injuries to an ironworker. Regional, a subcontractor, was named in a cross-complaint for equitable indemnity, comparative contribution and declaratory relief by the general contractor after the ironworker sued the general contrac...
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Opinion Defendant West End Financial Corporation, Inc. (West End), appeals from an order setting aside a nonjudicial foreclosure and ordering West End to transfer title of certain real property to plaintiff Barbara Baker, public administrator, as administrator of the estate of Della Yates. We affirm the order. Factual Background In 1974, Della Yates purchased a home at 411 Ringwood Drive in Natio...
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Opinion Pamela W. (Pamela) appeals from entry of summary judgment terminating her suit against her landlords and the condominium association governing the four-unit Pacific Beach complex in which she lived. She asserts the trial court in this case improperly determined the defendants were under no duty to have taken security measures which might have prevented the rapist who assaulted her in he...
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Opinion A person takes an overdose of a prescription medicine for the purpose of committing suicide. The label warns that the medicine can cause drowsiness. The overdose does not cause death. It renders the person unconscious so that she has no awareness of what she is doing. While in this unconscious state, she drives a car and is arrested and convicted for driving under the influence of an in...
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Opinion Defendant Alexander Poplawski appeals from a judgment of conviction entered upon the jury’s verdict finding him guilty of driving under the influence of alcohol with three previous convictions (Veh. Code, §§ 23152, subd. (a), 23175—count 1), and the misdemeanor offense of driving with a suspended or revoked license (Veh. Code, § 14601.2, subd. (a)—count 2). The jury also made a true fin...
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Opinion Introduction John R. Slaught, doing business as J.R. Slaught Construction Co., appeals (Code Civ. Proc., § 1294, subd. (a)) from an order entered on March 17, 1992, denying his petition to compel arbitration and to consolidate arbitration proceedings. Because we find agreements by the parties to participate in such consolidated arbitration, we reverse. Procedural and Fac...
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Opinion We hold that a joint and several judgment debtor who satisfies the entire debt is entitled to an order of contribution from the other joint debtors under Code of Civil Procedure sections 882 and 883. The paying debtor is entitled to this order free of any offsets the other debtors may have based on unadjudicated claims. This is true even though the underlying obligation arose out ...
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Opinion This is an appeal from an award in favor of contractor Leon Slavin (respondent) and against property owner Joan W. Borinstein (appellant) for contracting costs, fees and profits relating to a residence in Bel Air. Appellant asserts one issue on appeal: that the trial court erred in not finding that an amendment to the original agreement between appellant and respondent dated Augus...
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Opinion Valley View State Bank (Valley View) appeals an order awarding sanctions to Condor Enterprises, Ltd. (Condor) under Code of Civil Procedure section 128.5. Valley View and Condor were, respectively, senior and junior lienholders on a property owned by Santiago Valley I (Santiago). Valley View held a $5.2 million first deed of trust on the property, a mobilehome park, and Condor held a ...
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*724 Opinion This is a companion case to Slavin v. Borinstein, ante, page 713 [30 Cal.Rptr.2d 745]. 1 In this action Leon Slavin (respondent), a building contractor, sued Albert Fink (appellant), an agent of Joan Borinstein (Borinstein), for recovery of construction fees, costs and lost profits relating to a residence being constructed by responde...
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*1116 Opinion Thomas Wood commenced this action on May 10, 1989. Respondent Riverside County answered and eventually was granted summary judgment predicated upon the failure of Wood to present a claim for damages before filing the action as required by Government Code section 911.2. 1 Wood argues that a “Patient Problem/Complaint Form” submitted to the hospital’s quali...
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*759 Opinion In this case we consider whether double jeopardy and Penal Code section 1157 bar retrial of a large quantity enhancement when a defendant is found guilty of possession for sale but the jury is unable to reach a verdict on the enhancement. We conclude that retrial is proper under these circumstances. We modify the judgment to correct a credit miscalculation, and affir...
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Opinion Arkady Dashevsky appeals from a money judgment, entered August 7, 1992, after a nonjury trial of respondent Michael C. Moustakas’s claim for payment for legal services rendered. We affirm. *754 I. The Trial Court Did Not Err * II. The trial was recorded on videotape. No court reporter was present. (See Code Civ. Proc., § 270; Cal. Rules of Court, rules 980.5 and 980.6.) Th...
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Opinion This petition for a writ of mandamus raises the question of whether under the California Rules of Court a complaint transmitted by a facsimile machine to a trial court after the court closes to the public for the day is deemed to have been filed that day or the next day the court is open to the public. Facts On June 29, 1993, at 9:56 p.m., counsel for plaintiff, Denise Lynda Germino...
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Opinion Marilyn J. Gram Hanson appeals from an order characterizing her former husband’s enhanced early retirement benefits as separate property. *861Background Marilyn J. and Allen E. Gram were married on May 28, 1960. Allen started work for the San Diego Union-Tribune Newspapers (Union-Tribune) on October 14, 1968, and began accumulating retirement credit in the Copley Press, Inc., retirement pl...
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Opinion Frank Cornelius Thomas was convicted of felony driving under the influence of alcohol with three prior offenses (Veh. Code, §§ 23152, subd. (a), 23175) and driving with knowledge that his license was suspended or revoked (Veh. Code, § 14601.2, subd. (a)). He also admitted having served two prior prison terms within the meaning of Penal Code section 667.5 subdivision (b)). He was s...
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Opinion Plaintiff and appellant Valsan Partners Limited Partnership (Valsan) appeals from the trial court order denying its petition to compel arbitration with defendant and respondent Calcor Space Facility, Inc. (Calcor). It has also appealed the trial court order purporting to enforce the judgment entered in confirmation of one arbitration award and the order entering judgment after con...
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*826 Opinion Appellants Chun-Yen Lien and Fong T. Lien appeal from a judgment after a court trial quieting title to real property in favor of respondent Henry G. Moeller. Appellants were bona fide purchasers for value of certain real property at a nonjudicial foreclosure sale. The trial court granted respondent relief from forfeiture pursuant to Civil Code section 3275. It ordere...
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*872 Opinion The City of Irvine, a charter city, brought this action for declaratory relief challenging the validity of a referendum petition submitted by certain Irvine residents and Irvine Citizens Against Overdevelopment (ICAO). The referendum, if approved, would repeal a zoning amendment applying to property within Irvine’s statutory sphere of influence. The trial court enter...
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*776 Opinion The primary issue in this case is whether Sybil Niden Goldrich’s claims against several breast implant manufacturers are barred by limitations. Based upon undisputed evidence establishing that Mrs. Goldrich experienced excruciating pain, scarring, disfigurement and disability in July 1983, and was advised by three physicians in 1984 to have the implants permanently r...
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Opinion I. Introduction Plaintiff, Harry Jambazian, appeals from a summary judgment in favor of defendant, Joseph Borden, D.P.M., on a complaint for medical malpractice. We conclude plaintiffs failure to present legally admissible opinion testimony to controvert that submitted by defendant warranted summary judgment be granted on the medical negligence and informed consent claims. In so concl...
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Opinion Marlon Miller appeals from the trial court’s finding that he is a mentally disordered offender. (MDO, see Pen. Code, § 2960 et seq.) He contends: “I. Doctor Weber’s reference to the probation report in concluding appellant’s commitment offense involved force or violence violated the *916 double hearsay rule of Evidence Code section 1201. II. There is no substantial evidence of due cer...
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Opinion A police search of Arturo Cesar Molina’s Ford pickup truck uncovered, among other things, usable amounts of cocaine and methamphetamine, a loaded firearm, and a length of copper cable covered in rubber. Molina, accordingly, was charged by information with: count 1: possession of cocaine (Health & Saf. Code, § 11350, subd. (a)); count 2: possession of methamphetamine (Health & Saf....
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Opinion Larry Holland and his daughter Shelley Holland appeal from a judgment on the pleadings rendered in favor of defendant Sterling Casualty Insurance Company (Sterling) after the trial court found that (1) Sterling’s policy of automobile insurance for appellants had been cancelled by the financial institution which supplied the premiums for the policy, and (2) therefore there was no p...
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Opinion By this petition, Masonite Corporation (Masonite) challenges an order of the Mendocino County Superior Court dissolving a temporary restraining order and denying Masonite’s request for a preliminary injunction to prevent public release of claimed trade secret information. 1 The information at issue was supplied to the Mendocino County Air Quality Management District (MC...
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Opinion Defendant Rodney Beck, pursuant to plea bargain, pleaded guilty to one count of cultivation of marijuana. Thereafter, he moved for return of personal property (firearms), but the court refused to return the property to him, purportedly pursuant to Penal Code section 12028, which declares firearms used in the commission of a crime to be a nuisance and provides for the confiscation ...
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Opinion This declaratory relief action was filed to determine whether several insurers are obligated to defend and indemnify *905 their insured in three groups of environmental contamination lawsuits. The issue is whether this action can be set for trial before the third party suits are resolved. Our answer is that, on the record before us, we cannot say one way or the other,...
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Opinion I. Gilbert R„ a minor, appeals from a wardship order resulting from a juvenile court determination he committed an assault with a firearm and a finding a principal in the commission of the offense was armed with a handgun. (Pen. Code, §§ 245, subd. (a)(2), 12022, subd. (d).) In the published portion of this opinion, we hold that the minor’s Fourth Amendment search and seizure rights w...
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*1146 Opinion Petitioner contends the trial court erred in ruling petitioner’s declaration of prejudice filed pursuant to Code of Civil Procedure, section 170.6, was untimely. We agree. Statement of the Case Petitioner filed a wrongful death action in Tulare County arising out of an aircraft accident which occurred on January 20, 1993, in Tulare County. A number of other factually related...
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Opinion Thomas H. Wilson appeals from denial of severance damages in a condemnation action. I In 1954, the State of California (State) purchased land from Wilson’s parents for construction of the Santa Ana freeway. In 1991, it sought to purchase an additional parcel as part of its widening plan. The parties agreed on a price, but Wilson maintained he was entitled to severance damages as wel...
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*1197 Opinion Does the doctrine of res judicata bar one defendant from seeking equitable indemnity from a second defendant after the plaintiff voluntarily dismisses her complaint with prejudice as to the second defendant? We hold the answer is no. Facts and Proceedings Below Kathleen Young was involved in an automobile accident in the City of Long Beach. She was taken t...
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Opinion Respondents Thomas Incho Hwang and Chung Chon Chang were held to answer by a magistrate for unlawfully taking a portion of a workman’s wages, a felony. (Lab. Code, § 1778.) 1 The superior court subsequently set aside the information and dismissed the case. (Pen. Code, § 995.) The People have appealed the order setting aside the information. There is probable cause ...
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Opinion Willeta W. appeals from a judgment permanently severing her parental rights as to Daniel and ordering Daniel be placed for adoption. We conclude the juvenile court erred in holding it had no discretion to order continued reunification services beyond the 18-month review under Welfare and Institutions Code section 366.22, subdivision (a) and that such error was prejudicial. Therefore, the j...
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Opinion The City of Costa Mesa (the City) appeals a judgment setting aside its administrative decision to deny Jeffrey Harris a conditional *966 use permit for an accessory apartment. The City contends the trial court ignored the substantial evidence supporting the city council’s discretionary decision and, in the alternative, should have remanded the matter to the council for a new hearing. ...
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Opinion This appeal involves the “firefighter’s rule” (Seibert Security Services, Inc. v. Superior Court (1993) 18 Cal.App.4th 394 [22 Cal.Rptr.2d 514]) and the doctrine of primary assumption of the risk (Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2, 834 P.2d 696]). We conclude the trial court properly entered summary judgment for defendants under both doctrines. A highway patrol traffi...
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*1186 Opinion Letters written to the editor of a magazine or a newspaper are often like elaborate costume parties. Fact and opinion disguise their identities and pose as one another. Like the invitees at such affairs, the average reader is seldom deceived by the masquerade. Here we consider a letter to the editor of a newspaper. The letter is alleged to be defamatory. The letter contains st...
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*1109 Opinion Derrick Green, also known as Steven Wade, appeals from the judgment entered following a negotiated plea of guilty to possession for sale of a controlled substance (Health & Saf. Code, § 11351) and an admission to having served a prior term of imprisonment within the meaning of Penal Code section 667.5, subdivision (b). He contends: “The trial court committed reversi...
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Opinion Dominick and Denise Tomaselli (Tomasellis) sued Transamerica Insurance Company (appellant), alleging appellant’s refusal to pay a claim on their homeowners policy was both a breach of contract and in bad faith. The jury awarded contract damages of $260,000, emotional distress damages totaling $500,000, and punitive damages of $11,250,000. Appellant’s claims fall into five basic ca...
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Opinion In this appeal, we reverse a judgment signed by a supervising judge after the trial judge died without issuing a statement of decision, Code of Civil Procedure section 632 1 requires the trial judge to, at a minimum, issue a statement of decision in order to empower a supervising judge to sign a judgment for an incapacitated trial judge pursuant to section 635. Fa...
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Opinion Defendant and appellant Philip L. Magno appeals from an order granting a motion for judgment notwithstanding the verdict brought by plaintiffs and respondents Cumie L. Walton and Neda S. Walton after a jury verdict in favor of Magno on the issue of liability. The trial court ordered a trial on the issue of damages. We conclude the appeal is tajken from a *1239 nonappealable order and ...
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Opinion When officers searched the residence of defendant Carl Edward Menius, Jr., pursuant to a warrant, they found a veritable treasure trove of contraband, paraphernalia, and chemicals used in the manufacture of methamphetamine: sodium hydroxide, red phosphorus, hydriodic acid, methamphetamine sludge, ephedrine, trichlorotrifluroroethane, finished methamphetamine in a substantial quant...
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Opinion The issue presented by this appeal is whether the trial court erred by failing to award defendant credit for the number of days he spent in custody following his original sentencing, up to the time of his resentencing. The Attorney General concedes the error. Although we agree the court erred, and that defendant is entitled to additional credit, we believe the appropriate means of remed...
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*1262 Opinion Defendant Monica Lisa Medeiros appeals from an order imposing a second term of probation because she was unable to fully pay restitution during the original maximum term of probation. For the reasons stated below, we shall reverse the order reinstating probation. Factual and Procedural Background Between November 1985 and June 1986, defendant took 13 blank checks from her ...
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Opinion Petitioner Richard Frank Kleefeld, D.C. (defendant), contends a malpractice action against him is barred by the one-year statute of limitations found in Code of Civil Procedure section 340.5 (section 340.5). We agree and issue the peremptory writ he requests. On October 17, 1990, Darline Cunningham died of a ruptured aortic aneurysm. Five days later, her husband, real party i...
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*1304 Opinion I Introduction Appellant Leota McNall appeals from a judgment in favor of respondent psychiatrists William K. Summers, M.D., and Ferris N. Pitts, Jr., M.D., in a medical malpractice case. McNall proceeded on two theories: (1) Drs. Summers and Pitts negligently administered electroconvulsive therapy (ECT) causing her to suffer an embolic stroke with a conco...
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Opinion I. Introduction This case squarely presents the issue of the enforceability of a “traditional” surrogacy contract—an issue not addressed in California’s first two surrogacy cases, Johnson v. Calvert (1993) 5 Cal.4th 84 [19 Cal.Rptr.2d 494, 851 P.2d 776] and Adoption of Matthew B. (1991) 232 Cal.App.3d 1239 [284 Cal.Rptr. 18]. By “traditional” surrogacy we mean an arrangement whe...
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Opinion The City of Modesto (City) appeals from a judgment granting a petition for writ of mandate filed by Kaufman & Broad Central Valley, Inc. (Kaufman & Broad). The writ ordered the City to refund, with interest, development impact fees it had collected from Kaufman & Broad in excess of those in effect when Kaufman & Broad’s vesting tentative subdivision map for its River Te...
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25 Cal.App.4th 1660 (1994) THE PEOPLE, Plaintiff and Respondent, v. JAMES EARL HOWARD, Defendant and Appellant. Docket No. B072520. Court of Appeals of California, Second District, Division Seven. June 16, 1994. *1661 COUNSEL William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney ...
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Opinion Civil Code section 43.8 1 provides civil immunity for a person who communicates information “intended to aid in the evaluation of the qualifications, fitness, character, or insurability of a practitioner of the healing or veterinary arts.” In this original proceeding, we hold that section 43.8 bars a malicious prosecution action filed by a psychologist against two indiv...
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Opinion A jury convicted appellant Timothy Scott Craig on a single count of assault with intent to commit rape, a violation of Penal Code section 220. 1 In a bifurcated proceeding, the same jury found true allegations that appellant had suffered a prior conviction for a serious felony (§ 667, subd. (a)), and that he had served a prior prison term within the meaning of section 667.5, subdivisi...
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Opinion PSC Geothermal Services Company (PGS) and Ormesa Operators are being investigated by the Imperial County District Attorney (District Attorney) and the Department of Toxic Substance Control for the alleged improper disposal of geothermal filters at a local landfill. Petitioners’ attorneys engaged the services of Environ and Analytical Technologies Inc. *1701 (ATI), env...
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Opinion Eligio Monette appeals from the order revoking his probation for possession of a handgun and sentencing him to three years for his conviction for the sale of cocaine. He claims his trial counsel rendered ineffective assistance by failing to object to the prosecution’s violation of the corpus delicti rule and to the admission of his inculpatory statement to his probation officer. W...
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Opinion This appeal revisits the dispute between Dominick and Denise Tomaselli (Tomasellis) and Transamerica Insurance Company. The dispositive issue is whether an insured, after suing his insurer for failure to pay a claim and recovering a judgment, may again sue if the insurer does not immediately pay the judgment. The trial court concluded such a cause of action could not be asserted. ...
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*1688 Opinion The question presented in this appeal is whether Code of Civil Procedure section 1021.5 authorizes an award of attorney fees to a party who prevails at an administrative hearing and thereby resolves a dispute without resorting to a lawsuit. The plaintiff in this case filed an independent action for attorney fees under this statute after it had prevailed in an admini...
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*690 Opinion James S. appeals from an order terminating his parental rights (Civ. Code, 1 § 232) to his son Curtis S. Curtis’s maternal grandparents (Kenneth A. and Carol A.) petitioned for the termination approximately one year following the death of their daughter and Curtis’s mother, Kelly S. 2 The grandparents sought Curtis’s freedom from James’s custody and control on grounds he had ...
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Opinion Defendant and appellant San Francisco Bay Conservation and Development Commission (BCDC) appeals a judgment enjoining it from initiating enforcement proceedings based on its contention that plaintiff and respondent San Mateo County Harbor District’s (the District) policy concerning live-aboard vessels violates the McAteer-Petris Act (the Act) (Gov. Code, § 66600 et seq.; unless otherwise ...
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Opinion I Factual and Procedural Background Edward Goodman, founder of Goodman Lumber Company (GLC), died on September 2, 1990. Edward left most of his approximately $ 100-million-value estate to his two daughters, Joan Zimmerman and Gloria Clumeck. 1 Edward left his son, Charles Goodman, one-third of an antique automobile collection, a bequest valued at approximately...
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Opinion Statement of Facts This appeal is from an order after judgment awarding attorney fees and costs to defendant Stanley Folb (Folb) and against plaintiff Garfield Bank (Garfield). The underlying case was tried before Judge Alfred L. Margolis, judge of the superior court (retired), sitting on stipulation of both parties. In its second amended complaint, the operative complai...
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Opinion The case before us presents the question of whether workers’ compensation benefits may be denied because a worker who has died from a stroke contributed to his underlying hypertension through a lack of diligence in procuring medical treatment. Petitioner Janet Thompson is the widow of the decedent Jack Thompson. Thompson suffered a stroke and died at the age of 45. He had bee...
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Opinion Plaintiff Edward Royce Stolz II, transacting business as Royce International Broadcasting Station KWOD-FM, appeals from summary judgment entered in favor of defendants Wong Communication Limited Partnership, Kin Shaw Wong, and Fay Gum Wong (the Wong defendants), in plaintiffs action for malicious prosecution, abuse of process, and interference with economic relations. Plaintiff co...
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Opinion Plaintiffs and appellants Curtis and Tammy Cantwell appeal a judgment dismissing their premises liability action for personal injury and loss of consortium against defendant and respondent Peppermill, Inc., after respondent’s demurrer was sustained without leave to amend on the ground that appellants’ first amended complaint was barred by Business and Professions Code section 25602. (He...
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26 Cal.App.4th 78 (1994) 31 Cal. Rptr.2d 475 THE PEOPLE, Plaintiff and Respondent, v. LEOPOLDO CEJA, Defendant and Appellant. Docket No. B076169. Court of Appeals of California, Second District, Division Seven. June 23, 1994. *81 COUNSEL Martin Nebrida Buchanan, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Ass...
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Opinion — In this case, we are asked to determine the propriety of imposing sanctions on a petition for writ of mandate and request for stay. Sanctions are warranted where counsel omits critical facts intending to create a sense of emergency solely for delay. Because, however, we believe the omissions here were unintended, a product of time pressures combined with short-sighted advocacy, ...
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Opinion - Lou V. Hughes appeals a postdissolution order on an order to show cause granting Carolyn Hughes’s requested relief. I Lou’s and Carolyn’s marriage ended in 1987. The judgment of dissolution determined their custody and visitation rights; all other issues were reserved. In 1993, a stipulated judgment upon further reserved issues was entered. It determined the parties’ property ri...
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The well crafted opinion of the majority has persuaded me that Mr. Ma did not have the right *1855to insist upon having counsel present at the proposed meeting with TRW’s security department. There is insufficient evidence to support the trial court’s finding that the interrogation would have been sufficiently custodial so as to trigger Mr. Ma’s Fifth Amendment right to counsel. Ma’s subjective fe...
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Opinion Introduction These are cross-appeals from a $1,430,937 judgment for negligence and breach of fiduciary duty, awarded to Steve Moallem, as assignee of his *1829 corporations Midland Warehouse and Distribution, Inc., and Transmotor Express, Inc. (collectively Midland), against their real estate agents, Cold-well Banker Commercial Group, Inc., and Kent Williams (col...
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*23 Opinion I Procedural Background The case against defendants Anthony Watkins (Watkins) and Marvin Patrick Munford (Munford) was given to the jury on the following charges: Count Defendants) Offense Sentence Enhancement Allegation(s) I Watkins Munford First degree residential robbery of Sharon Parr (Parr) (Pen. Code, § 211; see § 212.5, subd. (a)) Watkin...
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Opinion — Marie Berlin appeals after the superior court denied her mandamus petition to set aside a Department of Social Services (DSS) administrative decision reducing her grant for Aid to Families with Dependent Children (AFDC). (Code Civ. Proc., § 1094.5; Welf. & Inst. Code, § 10963.) 1 Appellant receives AFDC benefits and operates a custom T-shirt business out of her home. ...
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Opinion — In this case we interpret the language of Code of Civil Procedure section 668.5 to determine whether the date of entry of a judgment in Los Angeles Superior Court, which maintains a register of actions rather than a judgment book, is dependent upon whether the judgment is entered in the register of actions prior to being placed in the court file. *63 By way of back...
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Opinion - Plaintiff and appellant Robert Barouh brought this action against defendant and respondent Morton Haberman for battery and negligent personal injury. The action was tried to a jury, which found by special verdict that defendant was not negligent (12-0) and that defendant did not commit battery (9-3). Plaintiff appeals from the judgment on the jury verdict, contending the evidenc...
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Opinion — Plaintiffs/appellants the Gitano Group, Inc., et al., (appellants), 1 appeal from the judgment entered upon the granting of the motion for summary adjudication of issues made by defendants/respondents the Kemper Group et al., (respondents). 2 Appellant had sued respondents and others for, inter alla, breach of contract in that respondents refused to indemni...
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Opinion — Plaintiffs 1 file this petition for extraordinary relief from an order precluding them from using their expert witness and from presenting certain evidence. We find merit in the petition and will issue a peremptory writ to vacate the challenged order. Facts In this wrongful death action, petitioners assert a product liability cause of action against real par...
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Opinion — Plaintiffs/appellants Antonia Leon Roman; Andres Leon, by and through his guardian ad litem Antonia Leon Roman; Maria del *179 Rosario Leon, by and through her guardian ad litem Antonia Leon Roman; et al. (collectively as appellants) appeal from the judgment entered against them upon the granting of the motion for summary judgment of defendants/ respondents Unigard ...
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Opinion James H. DeRoche, a San Francisco resident, filed a complaint against Commodore Cruise Line, Ltd. (Commodore) and International Marketing Systems, Inc. (IMS). He appeals from the judgment entered upon the order sustaining the demurrer of each defendant to the complaint without leave to amend, and from the order denying his subsequent motion for reconsideration. We will affirm. ...
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Opinion — We uphold an injunction under the McAteer-Petris Act (Gov. Code, § 66600 et seq.; the Act) 1 against the offshore mooring of certain vessels in Richardson Bay as constituting “fill” for which permits from the San Francisco Bay Conservation and Development Commission (BCDC) are required under section 66632, subdivision (a) of the Act. We also reverse the denial of reli...
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*197 Opinion — Laurie S. petitions for a writ of mandate after the court ordered her to submit to a psychological evaluation before the jurisdictional hearing in this dependency proceeding concerning her infant daughter Ciebrianna G. Laurie contends the court lacks authority to order her to undergo a psychological evaluation before a finding of jurisdiction and the order violates her privacy ...
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*241 Opinion In this case we hold an order certifying a class action should only be made upon proper notice and subject to the right of an opposing party to submit evidence in opposition. This is true whether the issue arises on the motion of a party or on the court’s own motion. This purported class action arises out of the sale of precious metal investment contracts by Car...
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Opinion — Plaintiff initiated an eminent domain action to acquire a portion of defendants’ parcel (hereafter the take) for street, sewer and utilities purposes. The trial court granted plaintiffs in limine motion to exclude all evidence of severance damages. After a contested court trial on the value of the take, the court found that the take was worth $22,000. Although defenda...
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Opinion — An amended information charged appellant Royce Randall Finley with one count of attempted indecent exposure in a public place, in violation of Penal Code 1 sections 664 and 314, subdivision 1, “a felony.” The information further alleged that appellant had several prior convictions for violations of section 314, subdivision 1, and that he had served prior prison terms therefor. Appel...
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Opinion — John Anthony Higgins and Melissa Jill Ayotte pleaded guilty to various narcotics offenses after the trial court denied their Penal Code section 1538.5 motions. We find the motions were properly denied and affirm the judgments. I Around 11 o’clock one evening, Officer Green responded to an anonymous report of a domestic disturbance involving “a man shoving a woman around.” Green me...
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Opinion — Defendant, Cesar Trejo, appeals his felony conviction after a Penal Code section 1538.5 suppression of evidence motion was denied. Because the motion was properly denied, other than modifying the amount of presentence credits, we affirm the judgment. 1 When the appropriate standard of review is applied (People v. Leyba (1981) 29 Cal.3d 591, 596-597 [174 Cal.Rptr. 867, 629 P.2d...
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Opinion — Foxborough, a general partnership, appeals after the trial court found that the statute of limitations, Code of Civil Procedure section 340.6, barred Foxborough’s legal malpractice action. 1 Foxborough had sued its former attorney, respondent David Van Atta, alleging that he failed to protect Foxborough’s interests in a condominium development transaction. 2 ...
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Opinion — Theodore Demblewski appeals an order characterizing the former family residénce as community property and awarding it to his ex-wife Eleanor, and continuing jurisdiction over two pieces of real property located in New York. He contends the court failed to set forth adequate factual or legal bases for its determination, and reversal is required. We agree. Theodore and Eleanor Demblew...
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Opinion — Richard V. appeals after the court severed his parental rights and ordered his dependent twin sons, Raymond R. and Rudy R., be *438placed for adoption. (Welf. & Inst. Code,1 § 366.26, subd. (b)(1).) Richard contends the San Diego County Department of Social Services (the Department) did not make a sufficient effort to locate him, thus the reunification services provided him were insuffi...
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Opinion — This case concerns the constitutionality of the protest provisions regarding municipal and county service area reorganizations and annexations contained in the Cortese-Knox Local Government Reorganization Act of 1985 (the Act), Government Code section 56000 et seq. 1 Broadmoor Police Protection District (Broadmoor) appeals from a judgment on the pleadings entered in favor of respond...
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Opinion — In this appeal we are asked to decide whether a supporting spouse must continue to pay a supported spouse’s medical insurance premium after the supported spouse’s death, pursuant to a marital settlement agreement which limits the parties’ right to modify its terms. We answer the question in the negative and reverse the order of the trial court which denied reimbursement of amoun...
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Opinion — In this case a judgment creditor sought an order directing the trustee of a trust to withhold sums otherwise distributable to the judgment debtor and to pay those sums to it in satisfaction of the judgment. Under the trust instrument the judgment debtor was entitled to all income from the trust for life with the power to invade principal as necessary for his support, health and ...
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Opinion — Feridoun Rezai appeals the judgment entered against him on his causes of action against the City of Tustin and for him on his breach of contract cause of action against Orange Coast Title Company, contending the trial court erred by: (1) granting Tustin judgment on the pleadings; and (2) limiting damages in the judgment against Orange Coast to $102. We affirm. In March 1989 after a ...
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Opinion — Thomas Zapara appeals a judgment against him in favor of the County of Orange in his action for refund of property taxes. The sole issue raised on appeal is whether the transfer of title to real property by a partnership to a general partner, who by virtue of having purchased all minority partnership interests has become the sole partner and sole owner of the partnership and its...
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Opinion — A jury convicted appellant Lonnie Dale Haney of three counts of burglary (Pen. Code, § 459), two of first degree and one of second degree. During trial, the court conducted a hearing pursuant to Evidence Code section 402 to determine the admissibility of appellant’s confessions to police officers. The trial court ruled the confessions were admissible. After the jury verdicts were rend...
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Opinion — Defendant Andre Ceniceros appeals from conviction by jury trial of first degree murder and attempted murder, contending, inter alla, that the trial court's action in ordering defense witnesses shackled during their testimony denied defendant his constitutionally guaranteed “presumption of innocence” and precluded the jury from fairly evaluating the shackled witnesses’ credibilit...
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Opinion — A jury convicted Marquibe Lonnell Brooks of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), threatening to commit a crime which would result in great bodily injury (Pen. Code, § 422), and dissuading a witness (Pen. Code, § 136.1, subd. (c)(2)). As to the first two offenses, the jury further found that Brooks committed them for the benefit of a street gang. (Pen. C...
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26 Cal.App.4th 400 (1994) 31 Cal. Rptr.2d 543 THE PEOPLE, Plaintiff and Appellant, v. PKS, INC., et al., Defendants and Respondents. Docket No. A061437. Court of Appeals of California, First District, Division Four. June 29, 1994. *402 COUNSEL Arlo Smith, District Attorney, and David C. Moon, Assistant District Attorney, for Plaintiff and Appellant. Peter Koehler, in pro. per., for Defendants and...
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*588 Opinion Introduction “Fair trials,” wrote Hugo Black, “are too important a part of our free society to let prosecuting judges be trial judges of the charges they prefer.” (In re Murchison (1955) 349 U.S. 133, 137 [99 L.Ed. 942, 947, 75 S.Ct. 623].) One does not need to go to law school to know, as Black wrote in the same opinion, that “. . . no man can be a judge in his own case.” (...
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Opinion — Appellants, Ojavan Investors, Inc., and several other real estate investment corporations, appeal judgments of dismissal entered after the trial court sustained demurrers of respondent California Coastal Commission (the Commission), without leave to amend, as to appellants’ petition for a writ of mandate and appellants’ concurrently filed complaint for *520 declaratory relief and da...
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Opinion Introduction Korea First Bank (KFB) obtained a summary adjudication permitting it to obtain a judicial foreclosure and deficiency judgment against petitioners Dong Suk Shin, Byung Kook Cheon, and Jung Soon Cheon. Petitioners then applied to this court seeking a writ of mandate to vacate that ruling on the ground that KFB had violated the “one form of action” provision of Code...
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Opinion — The trustees of an inter vivas trust appeal from an order determining that the plaintiff beneficiary had not violated the trust’s “no contest” clause by filing the underlying petition. Because we hold the trustees do not have standing to appeal the order, we dismiss the appeal. I Paul and Marie Esslinger established an inter vivas trust in 1976 known as the Esslinger F...
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Opinion — In deciding this case, we are compelled to interpret Government Code 1 section 65961, which limits the power of a city or county to base its issuance of building (or equivalent) permits for a residential subdivision upon conditions it could have “lawfully imposed” on a previously approved tentative map. In particular, we are asked to decide whether section 65961 permi...
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Opinion Introduction Defendant Michael Kenneth Andersen appeals from a judgment of conviction entered after a jury trial. The jury found him guilty of four counts of gross vehicular manslaughter (Pen. Code, § 191.5, subd. (a)) and one count of causing injury while driving under the influence of alcohol or drugs (Veh. Code, § 23153, subd. (a)). The jury also found true the allegation that defe...
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26 Cal.App.4th 568 (1994) 31 Cal. Rptr.2d 595 DONNA SHAVER, Individually and as Trustee, etc., Plaintiff and Appellant, v. ROBERT A. CLANTON et al., Defendants and Appellants. Docket No. G013816. Court of Appeals of California, Fourth District, Division Three. June 30, 1994. *570 COUNSEL Carlos F. Negrete for Plaintiff and Appellant. Coontz & Matthews and M. Stephen Coontz for Defendants and ...
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*154 Opinion I. Introduction Surfrider Foundation appeals from a judgment denying a petition for a writ of mandate, challenging the California Coastal Commission’s (Commission) approval of applications by the California Department of Parks and Recreation (Department) for permits to install devices for the collection of parking fees at 16 state park beaches. Surfrider contends the Commission...
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Opinion — Here we hold that the trial court did not have to advise the jury of its power to nullify a verdict and that the court correctly instructed that false imprisonment is a general intent crime. Jose Pablo Fernandez appeals from a judgment following a jury’s convicting him of felony false imprisonment by violence (Pen. Code, 1 §§ 236, 237) and battery with serious bo...
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*617Opinion — Appellant Laura C. appeals a juvenile court order establishing a legal guardianship for her daughter Nina P. Although she raises other issues, appellant’s chief contention is that the court erred in changing the permanent plan from long-term foster care to guardianship without the filing of a petition for modification pursuant to Welfare and Institutions Code section 388.1 As we shal...
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Opinion — Appellant Sandra W. timely appeals from an order of the juvenile court sustaining a supplemental petition filed by respondent Contra Costa Social Service Department (the department) as to her granddaughters, Delleisha H. and Jonique W. The minors were originally declared dependents of the juvenile court after they were abandoned by their mother, appellant’s daughter, in May 1990...
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*723 Opinion Factual and Procedural Background Paul Burtscher and his wife, Magdalena, entered into a written agreement which, among other things, gave Magdalena “unrestricted use of [the] home located at 2190 [Alessandro] Trail, Vista, California, for a period of 5 years” effective January 8, 1992. Magdalena started living in the home in January 1992, and she and Paul were ...
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Opinion — Appellants, Claude Percy, Major Bell, James Lewis, and Greg Carter, are jailers at the Oakland city jail. They and their union contend the jailers are entitled to the special disability benefits, provided by Labor Code 1 section 4850, for city police officers and other city employees whose duties “clearly fall within the scope of active law enforcement service.” We ag...
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Opinion — Here we hold that an administrative law judge awarding payment for retroactive in-home supportive services (IHSS) benefits, pursuant to Welfare and Institutions Code1 section 10950 et seq., has the authority to award interest on retroactive payments. We also hold that appellant was an “aggrieved party” with standing to challenge the trial court’s judgment which awarded her interest but ...
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Opinion — Kenneth Bray (Bray), a discharged employee, sought workers’ compensation benefits, alleging industrial injury to his nerves, psyche and internal system caused by termination from his employment. The workers’ compensation judge (WCJ) awarded him compensation. The Workers’ Compensation Appeals Board (Board) rescinded the award on the grounds that Bray’s injury was not one “arising...
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*739 Opinion — The trial court ruled that appellant Zanwil Sperber had failed to establish an equitable lien and directed the jury to return a verdict in favor of respondents on appellant’s cause of action for declaratory relief. Appellant contends: “I. The court erred in directing a verdict in favor of defendant Robinson since there was substantial evidence tending to prove a li...
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Opinion — While waiting in an examining room at the UCLA Medical Center, three-year-old Jonathan Herbert got his hands on some used needles and stuck himself. His mother’s first thought was of AIDS, and although Jonathan then and later tested negative, Jonathan’s mother sued the Regents of the University of California for negligent infliction of emotional distress. The trial court granted...
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*189 Opinion — Valerie Marriage appeals from the trial court’s dismissal of her action to quiet title. She challenges the dismissal of her adverse possession cause of action, which the court found barred by the doctrine of loches, and the dismissal of a defendant as a sanction for failure to effect timely service. We reverse. Factual and Procedural Background On July 3, 1991, Valerie 1 ...
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Opinion LILLIE, P. J. — Plaintiffs (hereinafter referred to collectively as Brown) appeal from an order of the municipal court 1 denying their motion to strike $31,300 in attorney fees and $1,346 in costs claimed by defendant West Covina Toyota (hereinafter Toyota) in a memorandum of costs filed after a judgment on directed verdict in defendant’s favor. The issue on this ap...
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*849 Opinion — The issue before this court is whether Dale Sandhu, an “East Indian” from Punjab, India, can sue under the Fair Employment and Housing Act for race-based employment discrimination. Lockheed argued successfully below that Sandhu was Caucasian and therefore could not bring suit on a race theory. We reject this narrow definition of race and hold that a cognizable clai...
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Opinion — Richard B. Goosmann appeals from the trial court’s order awarding child support to his ex-wife, Mary B. Goosmann (now Mary Fisher). Richard contends that the trial court erred by awarding, in 1992, child support retroactive to 1990. We conclude that although the issue of child support was raised in 1990, it was not decided. We hold that an original child support order may be ret...
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Opinion — The Franchise Tax Board of the State of California appeals from the judgment entered in favor of McDonnell Douglas Corporation on its complaint for refund of franchise taxes paid under protest. McDonnell Douglas cross-appeals from the trial court’s denial of its request for attorney fees expended in pursuing its complaint. We affirm the judgment. Summary of Facts Plain...
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*792 Opinion — Petitioner, Beverly Hills Multispecialty Group, Inc. (BHMG), sought writs of review in 10 cases in which respondent Workers’ Compensation Appeals Board (Board) affirmed orders denying BHMG’s lien claims for medical treatment and medical-legal costs. In each case, the allegedly injured worker filed a claim form or application alleging a cumulative industrial injury ...
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Opinion — In this opinion, we hold that the trial court abused its discretion in dismissing an action after appellant filed his amended complaint one day late. We also hold that where the amended complaint has been served on the defendant before the defendant moves to dismiss the action, *826 the defendant must give notice of any application or motion to dismiss or strike to ...
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Opinion — In this appeal, we affirm the judgment of the trial court and hold that appellant is not eligible for indemnification pursuant to Corporations Code section 317, subdivision (d). 1 In so holding, we determine that section 317 allows indemnification for corporate “agents” sued for carrying out activities on behalf of a corporation within the common law meaning of agency...
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Opinion — A jury convicted defendant of several controlled substance offenses, including one count of receiving, without a permit, a substance from outside of California containing ephedrine which is barred from transfer under federal law. (Health & Saf. Code, § 11106.) 1 She appeals from the ensuing order of probation. Defendant concedes that she did not have a permit. Sh...
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Opinion — The issue in this case is the sufficiency of evidence at a preliminary hearing to establish probable cause for holding the petitioner to answer felony charges and to support the denial of his subsequent motion to dismiss. Petitioner argues that the declarant, whose statement was recounted by a qualified law enforcement officer, was a coparticipant in the offense, and hence that his st...
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Opinion — Plaintiffs and appellants Del Norte Disposal, Inc., and Del Norte Solid Waste Management Authority appeal from an order denying their motion for a preliminary injunction in an action to compel defendants and respondents State of California Department of Corrections and Eel River Disposal Co. to cancel a contract for solid waste disposal. In the contract Eel River Disposal agrees to “f...
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Opinion — In this insurance bad faith case, we consider whether an insurer must accept a settlement offer exhausting the policy in exchange for the release of only one of three insureds, leaving the remaining insureds subject to liability for a judgment that may exceed the policy limits. The trial court found no duty to settle under these circumstances, granted summary adjudication for re...
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Opinion — Defendant and appellant Heriberto Contreras appeals the judgment entered following his conviction by jury of second degree murder. (Pen. Code, § 187.) 1 Contreras also pleaded guilty to a violation of Vehicle Code section 14601, subdivision (a), and admitted two prior convictions for violations of the same section within five years of the instant offense. The trial court sentenced C...
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Opinion — Plaintiff Rhonda Hill’s infant daughter Amber tragically died while in the care of Amber’s foster mother, defendant Gean Newkirk. Hill *1051 brought a negligence action against Newkirk. The court sustained Newkirk’s demurrer without leave to amend on the ground that Hill failed to first file a claim with the Foster Family Home and Small Family Home Insurance Fund (Fund) as required ...
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Opinion — Defendant and appellant Luis Alberto Molina Delvalle appeals the judgment (order granting probation) entered following his conviction of two counts of attempting to buy a person. (Pen. Code, § 181.) 1 Because the evidence supports the convictions and the conditions of probation are reasonably related to Delvalle’s offense, the judgment is affirmed. Factual and Procedural Backgro...
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Opinion — This is an appeal following a resentencing hearing which was ordered by this court in an unpublished opinion that affirmed the convictions of appellant Virgil Dell Bullock on various felony charges but found sentencing error. In this appeal Bullock claims the trial court erred by not ordering and considering an updated probation report before imposing a new sentence. He relies on a serie...
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Opinion — Following a jury trial, respondent Linda Murray obtained judgment against her adoptive father, Robert Athanasius Murray and his wife, Carol Ann Slater Murray. 1 The judgment quieted Linda’s title to a certain parcel of real property, awarded her damages of $60 each against Robert and Carol, and awarded her an additional $70,000 against Carol alone for attorney fees in...
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Opinion — Plaintiff, GTE Sprint Communications Corporation (Sprint), appeals from a judgment denying its complaint for property tax refunds *995 (Rev. & Tax. Code, § 5148) 1 for the years 1983 and 1984. In its complaint, as it did in its petitions for reassessment to the State Board of Equalization (the Board) below, Sprint contends that the Board’s appraisers unla...
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Opinion — In this case we hold that when ordering child support the trial court lacks discretion to vary from the presumptively correct amount, calculated by applying the algebraic formula in the statute, unless one or more of the statutorily enumerated rebuttal factors is found to exist. Garry Carter, in proprio persona, appeals from an order denying his motion to modify child support and to ord...
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Opinion In this case we hold that in ordering additional child support for employment-related child care costs and for uninsured medical expenses, if the parents’ income is not disparate, the trial court possesses discretion to determine whether to order these expenses shared equally or in proportion to the parents’ net disposable income. Teri D. Fini (now Pederson) appeals from a child support or...
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Opinion Defendant was charged with violating Los Angeles Municipal Code section 151.04 (demanding excess rent). Defendant demurred to the complaint, the demurrer was overruled, defendant submitted the matter on the undisputed facts, and he was found guilty and placed on probation. The sole issue is whether those provisions of the Los Angeles City Rent Control Ordinance regulating security deposits...
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Opinion — On June 1, 1991, Jason Billester, then 13 years old, was injured when the vehicle in which he was a passenger was broadsided by a vehicle driven by a juvenile suspected of vehicle theft fleeing from a Corona police officer. The officer had pursued the juvenile through a red traffic signal and a stop sign. The juvenile was travelling at 55 to 65 miles an hour when the collision occurre...
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Opinion — If the defendant-shooter, in one trial, is acquitted of murder, may the defendant-aider and abettor, in another trial, be convicted of murder? Our answer is yes. Collateral estoppel, as we explain, does not bar the aider and abettor’s conviction. We correct the judgment and, as corrected, affirm the judgment. *1091Procedural and Factual Background On May 22, 1990, the Los Angeles County...
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Opinion — Juan Carlos Martinez (appellant), Nelson Salvador Castillo, and Jesse James Tarver were charged with a special circumstance murder, robbery, and several attempted robberies. The prosecution’s severance motion was granted and appellant was tried alone. A jury convicted appellant of first degree murder (Pen. Code,1 § 187; count I) and found true as special circumstances (§ 190.2, subd. (a...
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26 Cal.App.4th 1139 (1994) 32 Cal. Rptr.2d 464 RANCHO SANTA PAULA MOBILEHOME PARK, LTD., Plaintiff and Respondent, v. BARBARA J. EVANS et al., Defendants and Appellants. Docket No. B075289. Court of Appeals of California, Second District, Division Six. July 15, 1994. *1141 COUNSEL Richard A. Weinstock, Channel Counties Legal Services Association, Andrew Koenig, Robert K. Miller, M. Carmen Ramirez...
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Opinion MIHARA, J. — Defendant Cave Imaging Systems, Inc., appeals from a judgment entered in favor of plaintiffs John and Ruth Rosh. 1 Defendant provided security services for Mr. Rosh’s employer, Conner Peripherals. In his management capacity at Conner Peripherals Mr. Rosh terminated an employee. The employee then returned to the premises and shot Mr. Rosh. Plaintiffs brought ...
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Opinion — Consistent with all of the out-of-state authorities which have considered the issue, in this case we hold an insured homeowner may recover the replacement cost of fire damage to an insured home by purchasing another home at another location. Accordingly, we reverse the judgment entered in favor of the defendant insurer. Factual and Procedural Summary The facts which gi...
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*1196 Opinion — The single issue in this appeal is the proper interpretation of a contractual clause by which the owner of property waived certain claims for damages against its contractors. Lloyd’s Underwriters et al. (appellants), the insurers for the owner, argue the damages for which they have sued respondents (the contractors for the job) fall outside the ambit of the waiver...
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Opinion — A jury convicted defendant of willful diversion of construction funds (Pen. Code, § 484b) and found the taking exceeded $25,000 (Pen. Code, § 12022.6, subd. (a)). Imposition of sentence was suspended and defendant was granted probation for five years. *1181 In the published part of this opinion we shall reject defendant’s contention that the trial court erred in instructing the ju...
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Opinion — In this case, we are asked to decide whether Code of Civil Procedure section 206, subdivision (f) requires the court to provide the defense with addresses and telephone numbers of jurors posttrial upon request. We hold the answer is no, not after jurors have exercised their “absolute right” to refuse to discuss the deliberations or verdict with counsel under subdivision (a). ...
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Opinion — We affirm the trial court’s determination that respondents are statutorily immune from liability in this police pursuit case. *921 Background According to plaintiff Billy James Bryant’s brief on appeal, Michael Finney was owed $500 by a “friend.” Trying to collect, he kidnapped the friend, threatened to kill him, beat him severely, and left him in the desert. Finney then decided...
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Opinion — The workers’ compensation judge (WCJ) found that petitioners, T. Gilbert Moradi, Ph.D„ and Stress Care, Inc., knowingly *911 violated Labor Code section 4628 when they submitted Dr. Moradi’s psychological report regarding Martin Macias in Mr. Macias’s workers’ compensation proceeding, despite their knowledge that Dr. Moradi had not examined Mr. Macias. Based on that finding, the WCJ...
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Opinion — Richard and Marion Lewinter (plaintiffs) appeal from the summary judgment entered in favor of Genmar Industries, Inc. We affirm. Background In 1989, plaintiffs purchased a used 61-foot motor yacht from a private party for recreational use. On March 14, 1989, while plaintiffs were at sea, the yacht experienced a catastrophic hull failure allegedly caused by defective la...
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*1282 Opinion — Following the denial of his Penal Code section 1538.5 motion, John Michael Bouser pleaded guilty to unlawfully possessing tar heroin (Health & Saf. Code, § 11350, subd. (a)). We find the heroin was legally seized and affirm the judgment. I One afternoon, Santa Ana Police Officer Brad Sadler saw Bouser in an alley known for drug dealing. Bouser was standi...
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*1259 Opinion — The primary issue before us is whether the standard cooperation clause included in every third party liability insurance policy operates as a contractual waiver of the insured’s attorney-client privilege in the event of coverage litigation between the insured and its insurer. For the reasons explained below, our answer is a resounding no. Background From...
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*1353 Opinion — We hold that delinquency penalties, collected on special taxes imposed pursuant to the Mello-Roos Community Facilities District Act of 1982, “follow the tax” and go to the public entity that levied the tax. (Gov. Code, §§ 53312, 53340, 53340.5.) 1 County of Ventura, Norman R. Hawkes in his capacity as Ventura County Auditor-Controller, and Harold S. Pit...
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Opinion — Steve Bloom appeals from the judgment denying his petition for a writ of mandate to compel the California Department of Health Services (Department) to set aside the permits it issued in October of 1992 to Integrated Environmental Systems (IES) for continued operation of a medical waste treatment facility. We affirm. I. Background The facility has operated at 4...
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Opinion — Defendant was convicted in a jury trial of committing a lewd act upon a child under 14 (Pen. Code, § 288, subd. (a)). The jury also found defendant was a stranger to the victim so as to make him ineligible for probation (Pen. Code, § 1203.066, subd. (a)(3)). In a bifurcated proceeding the trial court found the allegations of prior convictions to be true so as to make defendant ineli...
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Opinion — In this case, we hold that a defendant may be convicted of only one kidnapping offense where there is but one abduction and detention of a solitary victim. Appellant, Lamar Donnell Thomas, was convicted by a jury of five counts of forcible rape (Pen. Code, § 261, subd. (a)(2)), three counts of forcible oral copulation (Pen. Code, § 288a, subd. (c)), one count of sodomy (Pen. Code, §...
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Opinion — Ethel and Walter Benson (the Bensons) appeal from the judgment entered after the jury rendered a special defense verdict in favor of Honda Motor Company, Ltd. et al. (Honda). We affirm. Facts While stopped at a red light, the Bensons’ 1984 Honda Accord sedan was struck in the rear by a significantly larger, full-sized 1978 GMC Jimmy pickup whose brakes had failed. The pickup struc...
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Opinion — After the trial court denied his suppression motion, defendant pied no contest to charges of drug and firearm possession. (Health & Saf. Code, §§ 11055, subd. (d)(2), 11377; Pen. Code, § 12021, subd. (a).) The court granted probation with the condition that defendant serve a nine-month jail term (which was stayed pending appeal). Defendant renews his efforts to quash the search ...
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*1361 Opinion — In this action involving an accident between an automobile and pedestrian, defendant appeals from a judgment entered on special verdict in favor of plaintiff for $538,000 plus costs. On appeal, defendant contends that the judgment should be reversed due to prejudicial jury misconduct during deliberations, when a juror allegedly communicated to the other jurors inf...
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Opinion — Paramount Unified School District (District) appeals from a judgment confirming an arbitration award directing that District pay its former probationary teacher L. Mason Frelix (Frelix) compensatory damages in the sum of $24,685.69. 1 The primary issue on appeal is whether the trial court erred in failing to vacate an arbitration award on the ground that the arbitrato...
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*1688 Opinion — Valle de Oro Bank, N.A. (Bank) appeals from a judgment following a jury verdict in favor of respondent Henry Gamboa (Gamboa) and from the trial court’s denial of its motion for judgment notwithstanding the verdict. The Bank brought this action for damages for the balance due on a promissory note executed by Gamboa in consideration for a loan to purchase a motor ho...
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Opinion — In this case, we are called upon to decide whether the court may prohibit the media from publishing the name or likeness of a minor charged with murder at a juvenile court detention hearing when the minor’s name and image were broadcast by the media at her arrest a few days before the hearing. Murder is one of the serious offenses which opens the door to a public hearing. T...
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Opinion — David D. Maytag (husband) appeals an order dismissing his order to show cause (OSC) for modification of spousal support for lack of jurisdiction. The issue presented is whether the trial court had jurisdiction to modify the parties’ support agreement. For the reasons discussed below, the trial court had jurisdiction to proceed. The order therefore is reversed and the matter is remanded f...
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Opinion Procedural History On November 24, 1992, an amended information was filed in Madera County Superior Court, charging appellant Ronald Flournoy with forcible *1697 rape (Pen. Code, 1 § 261, subd. (a)(2)). The amended information contained enhancement allegations concerning convictions previously suffered by Flournoy in Madera County Superior Court case N...
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Opinion — Franchise Tax Board (Board) appeals from a judgment entered following a court trial adjudging recovery from the Board by John L. *1669 Krumpotich and Claire M. Krumpotich (plaintiffs/respondents) the principal sum of $66,863.00 plus interest and costs of suit. The Board contends the court erred in determining that plaintiffs were entitled to claim a tax credit autho...
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Opinion — In this action we determine that the holders of a deed of trust, recorded in December of 1977, have a right to exercise the private power of sale granted in the deed of trust even though the statute of limitations has expired on the secured debt, since the date for payment of the debt does not appear in the public records. Factual and Procedural Background On December ...
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Opinion I. Plaintiffs appeal from judgments in their favor in these two consolidated personal injury actions. (Robbins v. Wong (Super. Ct. Santa Clara County, No. 663024) and Robbins v. Schmelzer (Super. Ct. Santa Clara County, No. 691893)) They claim that evidentiary rulings and attorney misconduct tainted the trial, resulting in jury verdicts which failed to compensate them for the...
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Opinion Appellant was committed to the California Youth Authority after the juvenile court found true allegations that he had committed attempted murder (Pen. Code, §§ 187, 664), and assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). The court also found true allegations that appellant had personally inflicted great bodily injury (Pen. Code, ...
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*1740 Opinion Introduction Appellant Phillip Patino was convicted of two counts of forcefully committing lewd and lascivious acts on a child under the age of 14 in violation of Penal Code section 288, subdivision (b). He was also convicted of two counts of false imprisonment in violation of Penal Code section 236, and one count of forcible oral copulation in violation of Penal Code section ...
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Opinion Scottsdale Insurance Company (Scottsdale) appeals a judgment for damages and attorney fees and costs in the amount of $626,513.74 entered against it after court trial in an action by Camelot by the Bay Condominium Owners’ Association, Inc. (Camelot). Camelot brought this action for damages for breach of the covenant of good faith and fair dealing as assignee of a policyholder of S...
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Opinion — Frank N. Jones, Donna M. Jones and Snowcreek, Inc. (Jones), appeal from the judgment entered in favor of respondent Aetna Casualty and Surety Company (Aetna), following the order sustaining the *1721 demurrer without leave to amend to Jones’s first amended complaint for tortious breach of insurance contract. Factual and Procedural Background Our review of ...
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Opinion — Larry Dale Pritchett, claiming ineffective assistance of trial counsel, challenges a term enhancement under Penal Code section 12022.5, *1756 subdivision (a). 1 The court added three years under that section for use of a firearm in the commission of the crime of possession of the same weapon, a short-barreled shotgun. (§ 12020, subd. (a).) We conclude the enhancement does not appl...
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*1785 Opinion — Plaintiff Hartford Casualty Insurance Company (hereafter, Hartford) appeals from the judgment entered after a court trial on stipulated facts. Hartford sued Mid-Century Insurance Company (hereafter, Mid-Century) contending it was equitably entitled to indemnity for settlement costs of $35,000 and defense costs of $26,500 in the underlying action. The trial court found that Har...
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27 Cal. App. 4th 25 (1994) 32 Cal. Rptr. 2d 371 WILLIAM H. LOVELADY et al., Plaintiffs and Appellants, v. BRYSON ESCROW, INC., et al., Defendants and Respondents. Docket No. B072189. Court of Appeals of California, Second District, Division Six. July 28, 1994. *27 COUNSEL Nordman, Cormany, Hair & Compton, Larry L. Hines, Kent M. Kellegrew and William E. Winfield for Plaintiffs and Appellants....
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Opinion The issue presented in this case is whether a private entity in the business of selling criminal background information to the public is entitled to obtain a compilation of data from a data base maintained by the Municipal Courts of Los Angeles County, including the name, birth date and zip code of every person against whom criminal charges are pending in those courts, together wi...
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Opinion — In this matter, we conclude that the “firefighter’s rule” bars the claim of a privately employed tow truck driver who was injured during the normal discharge of his duties at the scene of a freeway automobile accident. Plaintiffs James Holland (Holland) and Kathleen Holland, husband and wife (collectively, the Hollands), and plaintiff-in-intervention State Compensation Insu...
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*1827 Opinion — In this appeal, we examine the merits of a judgment for compensatory and punitive damages, as well as a statutory award of attorney fees, entered in favor of the plaintiffs and respondents, Florence E. Barber (Florence) and Joe L. Barber (Joe) (collectively, the Barbers), following a six-day jury trial. The judgment was based, in substantial part, on alleged viola...
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Opinion The County of Los Angeles (the County) and Zsa Zsa Maxwell, a children’s services worker (CSW) in the County’s department of children’s services (DCS), appeal from the judgment of the superior court after a jury verdict. The jury awarded the seven-year-old plaintiff, Jimmee Scott, $1,191,692 in economic damages and $1,040,000 in general noneconomic damages, for a total of $2,231,6...
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Opinion This juvenile dependency action commenced in January 1991 with the filing of a petition, under Welfare and Institutions Code *93section 300, subdivision (c),1 by the San Francisco Department of Social Services (the department). At that time appellant, Liana M., and her now-former husband, Edward M., were in the midst of a contentious divorce and custody dispute over their children, Katheri...
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Opinion We consider whether the Workers’ Compensation Appeals Board (Board) properly overruled a workers’ compensation judge (WCJ) and allowed “integration” of the private benefits plan of defendant employer Pacific Bell with the California workers’ compensation system, by permitting Pacific Bell a credit against an injured employee’s permanent disability indemnity for payments made to th...
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Opinion In this appeal, we consider whether a public entity is required to indemnify public employees for legal fees incurred in successfully defending themselves against criminal prosecutions arising from actions taken within the course and scope of their employment. We conclude that indemnification for such criminal defense costs is discretionary on the part of the public entity rather than m...
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Opinion Introduction The district attorney appeals from the grant of a motion to set aside an ex parte order for child support enforcement. The question presented is whether a child support order terminates by operation of law upon the death of the custodial parent. We hold that the order does not automatically terminate when the custodial parent dies. Even if the noncustodial pa...
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27 Cal. App. 4th 60 (1994) 32 Cal. Rptr. 2d 400 ZERREL BREEDLOVE, Petitioner, v. THE MUNICIPAL COURT FOR THE BAY JUDICIAL DISTRICT OF CONTRA COSTA COUNTY et al., Respondents; THE PEOPLE, Real Party in Interest. Docket No. A065396. Court of Appeals of California, First District, Division One. July 29, 1994. *61 COUNSEL Charles H. James, Public Defender, David C. Coleman III, Chief Assistant Public...
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27 Cal.App.4th 197 (1994) 32 Cal. Rptr.2d 388 CYNTHIA DIANE LEE, Plaintiff and Appellant, v. BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, Defendant and Respondent. Docket No. G012606. Court of Appeals of California, Fourth District, Division Three. July 29, 1994. *201 COUNSEL James R. Goff for Plaintiff and Appellant. Payne & Fears, Daniel F. Fears, Timothy M. Freudenberger, Linda ...
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Opinion Defendant appeals from a judgment after he was convicted of violating Downey Municipal Code section 4103, which prohibits, among other things, the possession of alcoholic beverages in public buildings and parks.1 The California Constitution, article XX, section 22, provides that the state has the exclusive power to regulate the possession of alcohol. The ordinance is necessarily void, as w...
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27 Cal. App. 4th 426 (1994) 32 Cal. Rptr. 2d 660 ANGELES ELECTRIC COMPANY, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; STEVEN M. SPECTOR, Real Party in Interest. Docket No. B078927. Court of Appeals of California, Second District, Division Four. August 3, 1994. *428 COUNSEL Hunt, Ortmann, Blasco, Palffy & Rossell, Dale A. Ortmann and Paula Gerber for Petitioner. No ap...
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Opinion — Juan Consuegra, Esther Consuegra, Victor Hugo Mejia and Ramon Eugenio Calderon appeal their convictions for conspiracy to possess *1730 cocaine for sale and possession of cocaine for sale, with quantity enhancements, contending: (1) the trial court erred by instructing the jury that possession for sale requires only knowledge that the drugs would be sold eventually ...
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Opinion JENKINS, J. * Tracy Arthur Stone appeals his conviction on numerous charges arising from his abduction of and sexual assaults on two young children. During the court trial, he stipulated to admission of one victim’s grand jury testimony and to having the sanity-phase evidence heard before the court made a finding on the guilt phase. On appeal, he contends the advisements he received...
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27 Cal. App. 4th 489 (1994) 32 Cal. Rptr. 2d 504 LEO F. KENNEALLY et al., Plaintiffs and Respondents, v. MEDICAL BOARD OF CALIFORNIA et al., Defendants and Appellants. Docket No. B075024. Court of Appeals of California, Second District, Division Five. August 4, 1994. *492 COUNSEL Daniel E. Lungren, Attorney General, Calvin W. Torrance and Adrian K. Panton, Deputy Attorneys General, for Defendants...
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Opinion I. Introduction Defendant, Vaimoe Sekona, appeals from his convictions of mayhem (Pen. Code, § 203) 1 and assault with great bodily injury and with a deadly weapon (§ 245, subd. (a)(1)); plus findings he used a deadly weapon (§ 12022, subd. (b)) and had previously been convicted of a serious felony. (§ 667, subd. (a).) Defendant contends the trial court committed r...
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27 Cal. App. 4th 503 (1994) 32 Cal. Rptr. 2d 521 FIDELITY MORTGAGE TRUSTEE SERVICE, INC., Plaintiff and Appellant, v. RIDGEGATE EAST HOMEOWNERS ASSOCIATION et al., Defendants and Respondents. Docket No. B078773. Court of Appeals of California, Second District, Division Five. August 4, 1994. *505 COUNSEL Friedlandre & Werlin, Leslie M. Werlin and Lloyd K. Chapman for Plaintiff and Appellant. L...
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Opinion SUGASAWARA V. HAYASHI CORPORATION This is an appeal from an order vacating an entry of default. The order was made pursuant to section 473 of the Code of Civil Procedure. 1 Appellants contend that the motion to vacate came after the six-month period recognized by section 473. They base their argument on the claim that the period runs from the entry of default. We do not agree. The p...
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27 Cal. App. 4th 458 (1994) 32 Cal. Rptr. 2d 486 THE PEOPLE, Plaintiff and Respondent, v. JEMAL BERNARD, Defendant and Appellant. Docket No. D018363. Court of Appeals of California, Fourth District, Division One. August 3, 1994. *461 Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Atto...
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Opinion Defendant lessee Eleanor Nilsson appeals from a judgment in unlawful detainer in favor of plaintiff lessor WDT-Winchester (WDT). On appeal, Nilsson makes the following claims: (1) the trial court abused its discretion when it denied her request for relief from jury trial waiver; (2) the trial court erred in relying upon Code of Civil Procedure 1 section 1161.1 as that p...
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27 Cal. App. 4th 578 (1994) 32 Cal. Rptr. 2d 529 THE PEOPLE, Plaintiff and Respondent, v. JOSEPH AGUERO CASTRO, JR., Defendant and Appellant. Docket No. C015195. Court of Appeals of California, Third District. August 5, 1994. *580 COUNSEL Janice M. Lagerlof, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assista...
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*561 Opinion After a court trial, appellant Otis Elevator Company (Otis) was ordered to indemnify respondent Toda Construction of California (Toda) for Toda’s payment of damages to a plaintiff who was injured in an elevator installed by Otis. On appeal (H010706), Otis contends that a contract requiring Otis to indemnify Toda was superseded by a later temporary agreement shifting ...
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Opinion Plaintiffs Ronald Rewald (Ronald) and Nancy Rewald (Nancy; collectively plaintiffs) appeal from orders of dismissal entered in favor of defendants San Pedro Peninsula Hospital (Hospital) and Dr. Melvin Snyder (Snyder; collectively defendants) after the court sustained, without leave to amend, defendants’ demurrers to plaintiffs’ fourth amended complaint for medical malpractice and...
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Opinion Appellants Paul S. (father) and Marlene B. (mother) appeal from a judgment terminating their rights to parent their four minor children. They contend the judgment must be reversed because they were not provided with adequate reunification services. Mother also contends the minors should have been returned to her at the time of the permanency planning hearing, that she was wrongfully dep...
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27 Cal. App. 4th 551 (1994) 32 Cal. Rptr. 2d 676 MICHAEL APPELTON, Plaintiff and Appellant, v. CHRISTOPHER PERRY WAESSIL, Defendant and Respondent. Docket No. B074938. Court of Appeals of California, Second District, Division Two. August 5, 1994. *553 COUNSEL Vana Parler Margolese for Plaintiff and Appellant. Grace, Skocypec, Cosgrove & Schirm, Philip R. Cosgrove, Patricia M. Coleman and Lisa...
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Opinion Alan H. appeals after the court changed his dependent daughter Autumn H.’s permanent plan from long-term foster care to adoption and terminated Alan’s parental rights under Welfare and Institutions Code1 section 366.26. Alan contends the exception to termination of parental rights in section 366.26, subdivision (c)(1)(A), is unconstitutionally vague because it does not define the word “ben...
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Opinion HANING, J. Appellant Keet Nerhan, doing business as KN Properties (Nerhan) appeals the dismissal of his petition for writ of mandate to compel granting of a zoning variance. Respondent Stinson Beach County Water District’s demurrer was sustained without leave to amend on the grounds that the petition failed to state a claim because appellant did not own the subject property. W...
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Opinion We affirm the trial court’s order denying Code of Civil Procedure section 473 (hereafter section 473) relief for plaintiffs’ failure to timely file a motion to tax costs. *289 Background Plaintiffs Teri and Richard Douglas attended counseling for several years at the Family Counseling Center. Eventually learning that the counselor, Miriam Tarsky, was unlicensed,...
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Opinion A jury found Raymond Edward McLemore guilty of the sale of cocaine. (Health & Saf. Code, § 11352, subd. (a).) A separate jury found him guilty of petty theft. (Pen. Code, § 484.) In a bifurcated proceeding the court found he had suffered prior convictions for theft. (Pen. Code, § 666.) Defendant was sentenced on both convictions simultaneously. Defendant appealed from both judgmen...
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*596 Opinion Plaintiff acquired title to thousands of acres of ranchland in southern Santa Clara County in 1965. Though not separately described in the deed, the three parcels at issue herein were part of the land included in this 1965 grant deed, and the deed did not purport to merge the separate and distinct individual parcels within the deeded property. In 1991, plaintiff applied for certi...
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Opinion These appeals from the judgment of dissolution of the 22-year marriage of Claudia Nichols (wife) and Richard Nichols (husband) *664 and from a postjudgment order awarding attorney fees and costs center on a dispute over the value of a community asset, husband’s shareholder interest in his law firm. Wife’s expert valued the interest by determining the book value o...
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Opinion Petitioner, R. Clark Davis (Davis), seeks a writ of mandate directing the superior court to set aside an order denying his motion to strike that portion of real party in interest’s complaint praying for punitive damages. Real party, Carlos Fuentes, sued three physicians, including Davis, all of whom treated him after he was injured during the course and scope of his employment. Also n...
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Opinion The ultimate legal question presented in this litigation is this: Did the City of Berkeley Rent Stabilization Board (Board) abuse its discretion, by exceeding the authority and powers imposed by its enabling ordinance, when it adopted new regulations it contends were designed to avoid unconstitutional confiscatory effects on landlords and to ensure landlords fair and reasonable levels of ...
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*718 Opinion Appellants San Joaquin Raptor/Wildlife Rescue Center and John Mataka appeal from the judgment entered denying their complaint and petition for writ of mandate challenging the approval by respondent County of Stanislaus (County) of a proposal by respondent Arambel and Rose Development, Inc. (Arambel), to build a residential development near the existing community of G...
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Opinion Landlord S. James Bevill prevailed in an unlawful detainer action against his tenant Latif Zoura. Zoura appeals, asserting defects in the three-day notice to pay rent or quit. We reverse the judgment. Factual Background In August 1989, Bevill, the owner of a Chula Vista shopping center, entered into a commercial lease agreement with Zoura. On November 25, 1992, Bevill served Zoura w...
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27 Cal. App. 4th 700 (1994) 34 Cal. Rptr. 2d 10 GEORGE CRESPIN et al., Plaintiffs and Respondents, v. MOLLY COYE, as Director, etc., et al., Defendants and Appellants. Docket No. A061044. Court of Appeals of California, First District, Division One. August 12, 1994. *702 COUNSEL Daniel E. Lungren, Attorney General, and Charlton G. Holland III, Assistant Attorney General, for Defendants and Appell...
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27 Cal.App.4th 641 (1994) 32 Cal. Rptr.2d 624 ANNETTE J. BRUN, Plaintiff, v. STEVEN D. BAILEY, Defendant and Appellant; MICHAEL D. HANLEY, Movant and Appellant. Docket No. C011911. Court of Appeals of California, Third District. August 11, 1994. *645 COUNSEL Favor Moss & Enochian, Steward C. Altemus and J. Michael Favor for Defendant and Appellant. Halkides & Morgan and Annette R. Skene for Movan...
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Opinion Introduction Henry De Rosans (appellant) appeals from a conviction of second degree robbery and three related offenses. His principal contention is that the trial court erred in denying his challenge to the jury panel as unrepresentative of the community and in also denying his motion for a continuance for the purpose of complying with the procedural requirements for the ...
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Opinion Parties enter into an agreement for the sale and purchase of a note. After the sale, the purchaser sues the seller for breach of *791 contract, fraud, conspiracy and restitution. Seller prevails on all causes of action relating to the sale of the note. The trial court, however, finds that a payment due on the note was wrongfully received by seller after the close of escrow. The trial ...
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Opinion In her petition for writ of mandate Sondra Wilcox, a cross-defendant below, challenges the ruling of the trial court denying her motion to strike the cross-complaint against her for damages and injunctive relief based on restraint of trade and defamation. The motion to strike was based on California’s anti-SLAPP (strategic lawsuits against public participation) suit statute (Code ...
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Opinion Thomas Pace appeals from a jury determination that he is a mentally disordered offender (MDO; see Pen. Code, § 2960 et seq.). The effect of this order is that he will be an “inpatient” unless the State Department of Mental Health certifies to the Board of Prison Terms that there is reasonable cause to believe appellant can be safely and effectively treated as an outpatient. (Pen. Code, ...
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Opinion This appeal by the Building Industry Association of San Diego, Inc., a California nonprofit corporation (BIA), presents questions as to the validity of a residential growth control initiative, chapter 32A of the City of Oceanside Municipal Code, commonly known as Proposition A (Prop. A), adopted by the voters of the respondent City of Oceanside (the City or Oceanside). Actions for...
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Opinion Plaintiffs Israel Freeman and Dean M. Williams appeal from the judgment entered following the trial court’s granting the City of Beverly Hills’ motion for summary judgment. We affirm. Factual and Procedural History In May 1986, plaintiff Freeman became owner and operator of Dolores’ Restaurant in the City of Beverly Hills (City). In June 1987, plaintiff Williams entered into partn...
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27 Cal.App.4th 832 (1994) 33 Cal. Rptr.2d 438 MARK SAUNDERS et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; CALIFORNIA REPORTING ALLIANCE et al., Real Parties in Interest. Docket No. B080453. Court of Appeals of California, Second District, Division Seven. August 16, 1994. *836 COUNSEL Brobeck, Phleger & Harrison, James L. Miller, Thomas M. Peterson, Meredith N. ...
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Opinion At issue in this appeal is the applicability and scope of the “impostor rule,” which makes an indorsed check effective if the drawer was induced to issue the check by an impersonator of the payee. (Cal. U. Com. Code, § 3404, subd. (a); Cal. U. Com. Code, former § 3405, subd. (l)(a).) Plaintiff Title Insurance Company of Minnesota contends the trial court erroneously applied this r...
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Opinion The trial court sustained a demurrer without leave to amend and dismissed the complaint as to one defendant (Thomas J. Patterson) and sanctioned plaintiff (Mark S. Simonian) and his attorney (Gordon J. Zuiderweg) $2,500 for their frivolous tactics taken solely to harass Mr. Patterson. (Code Civ. Proc., § 128.5.) Both plaintiff and his attorney have appealed. This litigation c...
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*Supp. 4Opinion — Defendant Hueminia D. Williams (appellant) appeals from a conviction for driving under the influence of alcohol in violation of Vehicle Code section 23152, subdivision (a). Appellant contends the trial court committed reversible error in refusing to follow the procedures pertaining to peremptory challenges set forth in People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 58...
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*903Opinion Plaintiff Goodstein appeals from a September 11, 1990, order granting defendant’s motion to recover expert witness fees, awarding fees and costs of $138,421, and denying plaintiff’s motion to tax costs. On appeal, plaintiff challenges the trial court’s award of expert witness fees under Code of Civil Procedure section 998 and the cost award on several grounds. Factual and Procedural Ba...
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Opinion A jury found appellant, Enrique Diaz Sanchez, guilty of aiding and abetting the manufacture of methamphetamine in violation of Health and Safety Code 1 section 11379.6 because he permitted his ranch to be used as the location for a methamphetamine laboratory. In addition, the jury found true the 10-year enhancement allegation that the amount of methamphetamine exceeded 10 pounds (§ 11...
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*856 Opinion Anne Rizzo and Thomas Thai appeal a summary judgment entered against them in favor of defendants the Board of Trustees of the California State University System, Barry Munitz, Chancellor of the California State University System, and Thomas Day, President of San Diego State University, and intervener Associated Students, San Diego State University. In 1969, the ...
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*929 Opinion This appeal arises out of a slander of title action initiated by plaintiffs in June 1983. Plaintiffs prevailed at a jury trial, but this court reversed and remanded for a new trial on defendant’s statute of limitations defense because the trial court had failed to instruct the jury that the knowledge of plaintiffs’ attorney was imputed to plaintiffs. After remittitur...
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Opinion This appeal presents a single narrow question: when a statute requires the superior court to award “reasonable attorney’s fees,” may a local court rule limit the amount of that award? Specifically, the court determined a “reasonable” fee was $65,000. However, San Diego County Superior Court Rules, 1 rule 6.1 provided that in contested actions no attorney fees could be a...
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Opinion May evidence of statements made during mediation be admitted in court to prove the parties orally settled the dispute? The trial *1008court concluded it may. We disagree. Admission of such evidence violates the prohibition of Evidence Code section 1152.5 which protects statements made in mediation from use in litigation. Accordingly, we reverse. Facts and Procedure In 1989, plaintiffs Dona...
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*942 Opinion Donald Washington, an inmate at Pelican Bay State Prison, appeals from his convictions of battery by an inmate on a noninmate (Pen. Code, § 4501.5), resisting arrest (Pen. Code, § 148) and assault likely to produce great bodily injury (Pen. Code, § 245). Washington contends (1) that he was deprived of his right to a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118 [84...
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Opinion The courts try to provide a semblance of certainty in an otherwise uncertain world. Perhaps that is why judges are reputed to feel uncomfortable about making educated guesses. Such discomfort is *1088 unwarranted when a judge must decide whether a settlement is made in good faith. In such cases judges are required to make educated guesses. Here we hold that the t...
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27 Cal. App. 4th 1079 (1994) 33 Cal. Rptr. 2d 163 JOHN R. JOHNSON, Plaintiff and Appellant, v. FIRST STATE INSURANCE COMPANY et al., Defendants and Respondents. Docket No. B073879. Court of Appeals of California, Second District, Division Six. August 23, 1994. *1080 COUNSEL Kircher & Nakazato and C. William Kircher, Jr., for Plaintiff and Appellant. Hawkins, Schnabel, Lindahl & Beck and K...
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Opinion Introduction In a lawsuit filed against defendants and respondents, James S. Gordon, M.D., and his partners in medical practice, Marki J. Knox, M.D., Karen Blanchard, M.D., and Associates, Inc., and the Women’s Medical Group of Santa Monica, a California general partnership, plaintiff and appellant, Jean R. Kerins, sought general and punitive damages, including health car...
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Opinion Forest Place Residential Health, a business entity licensed to operate a residential care facility, and its management company, Superior *1019 Care Facilities, petition for a writ of review of the Workers’ Compensation Appeals Board (Board) order compelling them to provide the applicant, Ramona Calderon, her statutory remedies for her wrongful termination following a work-related inju...
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27 Cal.App.4th 946 (1994) 33 Cal. Rptr.2d 27 In re STERLING B. SCOTT II on Habeas Corpus. Docket No. A065063. Court of Appeals of California, First District, Division Four. August 23, 1994. *947 COUNSEL Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Kenneth C. Young, Assistant Attorney General, Karl S. Mayer and Susan J. King, Deputy Attorneys General, f...
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Opinion Statement of the Case * Procedural History Petitioner James Jones was charged by an amended information with committing the following offenses in Kern County: counts I and V, burglary; *1035 counts II and VI, receiving stolen property; count III, possession of a firearm by a felon; and count IV, possession of a short-barreled rifle. The amended information, People v. Jones (Supe...
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Opinion Appellants Nancy Russell, City Clerk of the City of Los Angeles (the Clerk), and Americans for Nonsmokers’ Rights, American Lung Association of Los Angeles County, Inc., and Marilyn Jennett (interveners) appeal from a writ of mandate issued in favor of respondents Gregory Q. Browne, Fredric A. Shinerock and Maurice Prince. In its order, the superior court declared unconstitutional...
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Opinion Introduction Appellant Kathleen McDonald Caballero (Kathleen) appeals from the minute order of the family law division of the superior court granting the *1143 motion of Kathleen’s husband, Harold Caballero (Harold), to quash service of summons of Kathleen’s petition for dissolution or legal separation and dismissing the action. The petition was filed by Kathleen...
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Appellant, David Silva, was convicted by a jury of one count of spousal abuse (Pen. Code, 1 § 273.5) and four counts of spousal rape (§ 262), all committed on October 2, 1991, and a second count of spousal abuse committed on October 10, 1992. In a bifurcated proceeding, the court found true an allegation he had previously been convicted of a serious felony (assault with a deadly weapon) within ...
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Opinion Respondent Anthony Portillo was attacked and seriously injured by a dog. He brought an action against the dog’s owner, John Kim, 1 and the owner’s landlord, appellant Henry Aiassa. After the jury rendered a verdict in favor of respondent, appellant filed the instant appeal. *1132 He contends the trial court erred in its jury instructions on a landlord’s dut...
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Opinion This appeal arises from an action in eminent domain brought by the County of Contra Costa (County) to condemn, for use in constructing a new county jail, 51 acres of property located in North Richmond. The property itself was owned by Pinole Point Properties, Inc. (Pinole Point), while mineral and hydrocarbon rights on the property were owned by Bethlehem Steel Corporation (Bethle...
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Opinion Respondent Antonio Vianna sued The Doctors’ Management Company (Doctors) and three individuals for damages arising out of the termination of his employment with Doctors. Doctors appeals from an order denying its petition to compel arbitration pursuant to Code of Civil Procedure section 1281.2. 1 We reverse. I. Vianna began his employment at Doctors on May 29, ...
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Opinion Plaintiff, Jaime Perez, appeals from an order of dismissal after the trial court sustained without leave to amend the demurrer to his first amended complaint for negligence. We conclude that Perez has failed to state a cause of action because the defendant, the City of Los Angeles (hereinafter, the city), is statutorily immune from suit for injury from the hazardous recreational activit...
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Opinion In this action by Sea World, Inc. (Sea World) for refund of property taxes paid in 1989, we revisit the fascinating world of real property reassessments after the passage of Proposition 13 1 to determine whether the trial court properly granted the County of San Diego’s (County’s) motion for summary judgment. The court held that Sea World had failed to exhaust its admin...
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27 Cal. App. 4th 1427 (1994) 33 Cal. Rptr. 2d 190 BORIS KORBEL, Plaintiff and Respondent, v. SHEUNG-CHI CHOU et al., Defendants and Appellants. Docket No. G014897. Court of Appeals of California, Fourth District, Division Three. August 30, 1994. *1429 COUNSEL Callahan, McCune & Willis, George W. Coleman, Brown & Brown and John J. Tasker for Defendants and Appellants. John A. Barclay and J...
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Opinion — This action arose as the result of defendant’s denial of plaintiffs claim for life insurance benefits upon the death of his wife, who was employed by defendant. Plaintiff sent a series of letters to defendant, claiming life insurance benefits. Defendant responded on January 30, 1986, that plaintiffs wife had not been eligible for life insurance benefits. There is no evidence that plaint...
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Opinion — Defendant Patti Cox (appellant) appeals from a judgment in an unlawful detainer action. Appellant contends her rental unit is a dwelling unit within the meaning of Los Angles Municipal Code section 12.03, and therefore the trial court erroneously concluded that her unit was not subject to Los Angeles Municipal Code, chapter XV, article 1. Appellant also contends respondent failed to comp...
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Opinion We decide this case, although technically moot, to effect the legislative mandate for speedy resolution of the permanent status of dependent children. This case involves the rights of dependent children whose parents are no longer receiving reunification services and for whom adoptive parents or guardians are not generally forthcoming, but whose caretakers are likely to assume one of thos...
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Opinion Plaintiff and appellant Benito DiPalma (DiPalma) appeals a judgment following a grant of nonsuit in favor of defendants and respondents Norman Seldman (Seldman) and Garcia & Seldman, Inc., a professional corporation (Garcia & Seldman) (sometimes collectively referred to as Seldman). The essential issue presented is whether the trial court properly granted nonsuit in this lega...
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Opinion This is our second encounter with this case, the first of which also resulted in a published decision—National Union Fire Ins. Co. v. Lynette C. (1991) 228 Cal.App.3d 1073 [279 Cal.Rptr. 394] (National *1438 Union I). The subject is insurance coverage for a foster parent who negligently fails to protect his or her foster child from ...
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27 Cal. App. 4th 1466 (1994) 33 Cal. Rptr. 2d 217 THE PEOPLE, Plaintiff and Respondent, v. ROBERT EARL GIBSON, Defendant and Appellant. Docket No. C017016. Court of Appeals of California, Third District. August 31, 1994. *1467 COUNSEL Richard I. Targow, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant At...
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Opinion Two men—one White, one Black—robbed a coin store in Newport Beach and murdered two people in the process. The police arrested Eric Wick, who is White, and Thomas Read Merrill, who is Black. In a lineup conducted before their joint preliminary hearing, eyewitnesses positively identified Eric Wick, who had already admitted to the police that he committed the crime. But another witne...
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27 Cal.App.4th 1471 (1994) 33 Cal. Rptr.2d 243 JEHAN ZEB MIR, Plaintiff and Respondent, v. CHARTER SUBURBAN HOSPITAL, Defendant and Appellant. Docket No. B066660. Court of Appeals of California, Second District, Division Three. August 31, 1994. *1474 COUNSEL Weissburg & Aronson, Lowell C. Brown and Shirley J. Paine for Defendant and Appellant. Jeffer, Mangels, Butler & Marmaro, Suzanne F....
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27 Cal. App. 4th 1155 (1994) 33 Cal. Rptr. 2d 354 THE PEOPLE, Plaintiff and Respondent, v. TOMMIE LEE OWENS, Defendant and Appellant. Docket No. A062377. Court of Appeals of California, First District, Division Five. August 31, 1994. *1156 COUNSEL Ozro William Childs, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chi...
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Opinion Felix Frankfurter once made fun of the tendency of courts to look at legislative history rather than the actual words of the statute. “[Tjhis *1571is a case for applying the canon of construction of the wag who said, when the legislative history is doubtful, go to the statute,” he wrote. (Greenwood v. United States (1956) 350 U.S. 366, 374 [100 L.Ed. 412, 419, 76 S.Ct. 410].) The instant ...
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Opinion Procedural Background On August 5, 1993, a criminal complaint was filed against appellant for violations of Vehicle Code sections 23152, subdivision (a) (driving while intoxicated) and 23152, subdivision (b) (driving with a blood-alcohol level of .08 percent or greater). On October 25, 1993, appellant’s pretrial motion to suppress evidence pursuant to Penal Code section 1538.5 was heard an...
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Opinion On July 22, 1987, respondent Emory Thomas was employed as an “aircraft repairer” at the Alameda Naval Air Station. While disassembling a jet engine in the course of his employment duties, respondent used a Garland No. 4 split-head hammer (hereafter the hammer), which he obtained from the “special tool rack,” to remove a disk from the turbine shaft of the jet engine. As he swung the hammer...
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Opinion This action arises out of the sale of a house by Michael and Mary West to Wayne and Beverly Willerth. Willis M. Allen Company (Willis Allen) and two of its agents represented the parties in the sale. The Willerths sued the Wests, Willis Allen and the agents. After having prevailed on a summary judgment motion on the basis of a statute of limitations bar, the broker defendants sett...
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27 Cal.App.4th 1527 (1994) 33 Cal. Rptr.2d 305 In re the Marriage of MARIE P. ANGOCO and PRIESTLY SAN NICOLAS. MARIE P. ANGOCO, Respondent, v. PRIESTLY SAN NICOLAS, Appellant. Docket No. D018047. Court of Appeals of California, Fourth District, Division One. August 3, 1994. *1531 COUNSEL Mark Wright Rossi for Appellant. Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Att...
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Opinion The juvenile court entered a disposition order which in part denied reunification services (Welf. & Inst. Code,1 § 361.5, subd. (b)) to the mother, Terri S. In a later, separate disposition order it denied services to the father, Robert R. Both parents appealed. The mother raised the denial of services as well as the juvenile court’s jurisdictional finding under section 300, subdivision (...
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27 Cal.App.4th 1557 (1994) 33 Cal. Rptr.2d 366 TUSTIN PLAZA PARTNERSHIP, Plaintiff and Appellant, v. KEN WEHAGE et al., Defendants and Respondents. Docket No. G013806. Court of Appeals of California, Fourth District, Division Three. August 31, 1994. *1560 COUNSEL Stephen C. Chen for Plaintiff and Appellant. Marvin Zinman for Defendants and Respondents. OPINION SONENSHINE, J. Tustin Plaza Partners...
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*1601 Opinion Defendants and appellants Charles Banasky (Banasky) and David G. Van Horn (Van Horn) (collectively, the dentists) appeal a judgment following a grant of summary judgment in favor of plaintiff and respondent Delta Dental Plan of California (Delta). The essential question presented is whether Delta’s determination as to what constitutes the usual, customary and r...
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27 Cal. App. 4th 1722 (1994) 33 Cal. Rptr. 2d 313 HERBERT A. CROCKER & COMPANY et al., Plaintiffs and Appellants, v. TRANSAMERICA TITLE INSURANCE COMPANY et al., Defendants and Respondents. Docket No. A060416. Court of Appeals of California, First District, Division Four. August 8, 1994. *1723 COUNSEL Mark B. Scott for Plaintiffs and Appellants. *1724 Knox, Anderson & Blake, Robert Knox, ...
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Opinion Christopher H. appeals the juvenile court’s order declaring his minor children, Terry, Tracie, and Elizabeth H., dependents (Welf. & Inst. Code,1 § 300, subd. (b)) and removing them from the custody of their *1849mother, Becky H. (§ 361, subd. (b)). He contends he was improperly denied reunification services.2 We affirm. Factual and Procedural Background Terry, Tracie, and Elizabeth were ...
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Opinion We are called upon to decide whether a sentencing court may properly order a defendant committed to prison to pay the full amount of restitution, rather than an apportioned share, under circumstances where his codefendant has been ordered to reimburse the same loss. Given the facts of the present case, we find that joint and several orders for payment of restitution made pursuant to Gov...
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Opinion A party aggrieved by a decision of the Public Employment Relations Board (PERB) must file a petition for writ of extraordinary relief challenging the decision within 30 days after issuance of the board’s final order. (Gov. Code, § 3542, subds. (b) & (c).) We address here PERB’s motion to dismiss as untimely a challenge to one of its rulings. San Mateo Federation of Teachers, AFT Local 149...
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27 Cal. App. 4th 1611 (1994) 33 Cal. Rptr. 2d 276 CHRISTOPHER SCHULTZ, a Minor, etc., et al., Plaintiffs and Appellants, v. DAVID M. HARNEY et al., Defendants and Respondents. Docket No. B071678. Court of Appeals of California, Second District, Division Three. September 1, 1994. *1615 COUNSEL Harry Frank Scolinos for Plaintiffs and Appellants. David M. Harney, in pro. per., Thomas Kallay, Vincent...
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Opinion This is a plaintiffs’ appeal from an order after judgment. The defendant failed to answer the plaintiffs’ complaint and his default was entered. An ex parte hearing on the issue of damages was held, evidence taken, and a default judgment entered for damages. The trial court vacated the default judgment and set aside the default. We conclude that the default judgment was prope...
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Opinion Cecily Kagy appeals from the order of the superior court denying her petition for leave to file a late claim against Napa State Hospital and various members of its staff. The claim, in essence, alleged that on January 1,1992, Kagy was seriously injured due to the negligence of the hospital and its staff. It alleged that as of that date Kagy had been deemed an incompetent, and...
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Opinion Introduction This appeal contests that portion of a judgment which set aside as a fraudulent conveyance Yukio Tamura’s gift of $243,206 to his sons made one month after a jury had returned a verdict compelling him to pay in excess of $2 million. Because the funds were derived from a defined benefit pension plan, Yukio Tamura maintained that the moneys were entitled to the statutory ex...
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28 Cal.App.4th 185 (1994) 34 Cal. Rptr.2d 39 JUDITH KRUPNICK et al., Plaintiffs and Appellants, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY et al., Defendants and Respondents. Docket No. E006810. Court of Appeals of California, Fourth District, Division Two. September 9, 1994. *187 COUNSEL Weldon Diggs and Linda M. Wilde for Plaintiffs and Appellants. Hawkins, Schnabel & Lindahl, Kelley K. Bec...
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*261 Opinion The trial court ordered appellant Marcus K. Johnson to pay child support of $1,660 per month and $56,576 in arrears. Johnson appeals, 1 contending that (1) his total obligation in arrears was only $22,649; and (2) the current support order is unjust and inappropriate under the facts of this case. We affirm the judgment. I. Facts In 1981, Aerial J...
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Opinion California State Personnel Board (Board) appeals from a judgment granting peremptory writ of administrative mandamus (Code Civ. Proc., § 1094.5, subds. (f), (g)) to compel reversal of David Larson’s (Larson) termination as a teacher with real party in interest Department of Developmental Services (DDS). 1 Statement of the Case DDS discharged Larson as a teacher a...
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Opinion Plaintiff Cheri L. Craig, a low-income resident of the City of Poway, brought an action against Poway, Poway’s city council, and the Poway Redevelopment Agency (collectively Agency), challenging various aspects of the Agency’s implementation of its redevelopment plan. 1 Craig claimed inter alia (1) the Agency had not properly funded its low- and moderate-income housing ...
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Opinion The “collateral source rule” provides that where a person “suffers personal injury or property damage by reason of the wrongful act of another, an action against the wrongdoer for the damages suffered is not precluded nor is the amount of damages reduced by the receipt by him of payment for his loss from a source wholly independent of the wrongdoer. . . .” (Anheuser-Busch, I...
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*165 Opinion This appeal challenges a Contra Costa County Board of Supervisors resolution which establishes lower general assistance payments for parents who live with their adult children and adult children who live with their parents. In effect, the resolution reduces payments to recipients who live with “legally responsible” relatives, and presumptively includes adult children and the pare...
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Opinion Penal Code section 12076, a part of the Dangerous Weapons’ Control Law (Pen. Code, § 12000 et seq.), governs the scope of the investigation to be made by the Department of Justice for the purpose of determining whether an individual is disqualified from obtaining possession of a firearm by sale or otherwise. In 1989 the Court of Appeal in Gray v. State of Californ...
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Opinion Assemblyman Dean Andal, the petitioner in this writ proceeding, is a candidate for a seat on the Board of Equalization at the General Election scheduled for November 8, 1994. One of his opponents is State Senator Robert Presley, the real party in interest. Andal commenced this original mandamus proceeding against Acting Secretary of State Tony Miller seeking a writ of mandate from...
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Opinion Appellant Kenneth Haar appeals from a judgment entered after the trial court granted a petition for writ of administrative mandamus filed by respondent the Governing Board of the ABC Unified School District (District). The California Women’s Law Center, Alliance for Children’s Rights, and Public Counsel join in the appeal as amici curiae. We affirm. Contentions Appellant...
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Opinion Plaintiff and appellant Ralph Armenio appeals a summary judgment in favor of defendant and respondent County of San Mateo in his action for personal injuries. He contends the trial court erroneously concluded respondent was immune from liability by virtue of Government Code section 831.4, 1 and that triable issues of fact exist concerning the purpose of the trail on which his injuries...
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Opinion The Friends of Cuyamaca Valley (Friends), a citizens group, appeals from a judgment denying its petition for a writ of mandate to compel the Lake Cuyamaca Recreation and Park District (District) 1 to make an environmental assessment under the California Environmental Quality Act (CEQA) (Pub. Resources Code, 2 § 21000 et seq.) with respect to the 1992-1993 duck hunting season. We rej...
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Opinion A jury convicted Michael J. Minor of one count of driving under the influence of alcohol or drugs causing injury (Veh. Code, 2 § 23153, subd. (a)) and one count of driving with a measurable blood-alcohol of .08 percent or more causing injury (§ 23153, subd. (b)), counts 2 and 3. The jury acquitted Minor of count 1, vehicular marslaughter without gross negligence (Pen. Code, § 192, sub...
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Opinion The defendant was tried on eight identical counts of committing lewd and lascivious acts on the body of his thirteen-year-old stepdaughter during the period of January 1, 1990, through September 11, 1990 (Pen. Code, § 288, subd. (a)), 1 and on one count of possessing a short-barreled shotgun (§ 12020, subd. (a)). The jury found him guilty on the weapon possession charge...
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Opinion Erika W. was removed from the custody of her mother (hereafter appellant), and the juvenile court took jurisdiction over her under Welfare and Institutions Code section1 300, subdivisions (b), (d) and (j). She was placed in the custody of her father, Charles W., and family maintenance services were provided to him. Reunification services were not provided to appellant. Appellant filed a no...
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*464 Opinion Appellant claims that the trial court erred when failing to award him attorney fees as the prevailing party on a cross-complaint. We affirm. Facts The underlying action was filed on behalf of Cinema Force Production, Inc. (Cinema Force) and Blood Law, Ltd., a California Limited Partnership (Blood Law) and against Hilltop Investment Associates and Filmservic...
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Opinion Margaret Bockover appeals from a judgment the trial court entered after sustaining the demurrer of respondents Robert Perko, Frank Robles, Richard Van Slyke, Joseph E. Krueger, and the Regents of the University of California, individually and doing business as Lawrence Livermore National Laboratory (Laboratory). She contends that the trial court erred in dismissing her action for ...
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Opinion DeVaughn Peace, M.D., and DeVaughn Peace, M.D., Inc. (Peace) appeal from judgment entered following the granting of a motion for nonsuit in favor of defendant St. Francis Medical Center (Medical Center). Statement of Facts and Procedural History On March 1, 1989, Peace filed a third amended complaint for breach of contract, breach of the covenant of good faith and fair dealing, negl...
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Opinion We decide here that the antideflciency statutes do not bar an action under the following circumstances: 1) The seller/beneficiary holds two trust deeds on the same real property, each securing a separate note for $300,000; 2) The seller/beneficiary reacquires the property at a nonjudicial foreclosure sale of the senior deed of tmst with a credit bid which is less than th...
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Opinion This declaratory relief action construes a subrogation clause in a commercial vehicle insurance policy. The trial court held the insurer cannot assert its contractual right to repayment from the insured’s recovery against the third party tortfeasor, because the total amount available from the insurance and the third party is insufficient to compensate the full loss suffered by the...
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Opinion A jury convicted appellant of first degree murder (Pen. Code,1 § 187) and found true a robbery special circumstance (§ 190.2, subd. (a)(17)) and a firearm allegation. (§ 12022, subd. (a)(1).) Financial gain (§ 190.2, subd. (a)(1)) and lying-in-wait (§ 190.2, subd. (a)(15)) special circumstances were found not true. Appellant was sentenced to state prison for life without the possibility of...
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*561 Opinion Petitioner Patricia A. Yancey was struck on the head by a discus thrown by a classmate during a community college physical education class. This case raises an issue left unaddressed in Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2, 834 P.2d 696]: whether the limited duty of care applicable to coparticipants in such sports as football,...
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Opinion Plaintiff and appellant Ophra Griego sought a writ of ordinary mandamus (Code Civ. Proc., § 1085) to compel defendants and respondents Los Angeles Unified School District et al. (District) to classify her as a permanent employee. The trial court denied the writ, concluding on *517 undisputed facts that as a matter of law Griego did not meet the statutory qualification...
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Opinion Defendant Placer Title Company leased space in a shopping center owned by plaintiffs Phillip and Judy Lee. Defendant stopped paying rent and vacated the premises, claiming fumes from an adjoining dry cleaning business made its office unusable. Plaintiffs filed a complaint for rent owing on the remainder of the lease. When the court ruled the terms of the lease precluded defendant ...
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Opinion William Levine, a husband in a dissolution of marriage action, appeals from a postjudgment order filed on March 29, 1994. His wife, Teresa Levine, has moved to dismiss the appeal from the postjudgment order. We grant the motion. On October 12, 1990, the judgment of dissolution was entered. Paragraph 2.2 of the judgment contained a guarantee by Ms. Levine that her husband would receive...
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Opinion Danny Lavel Brown appeals from judgment entered following a jury trial in which he was convicted of three counts of kidnapping (Pen. Code, § 207, subd. (a)), nine counts of forcible rape (Pen. Code, § 261, subd. (a)(2)), one count of sodomy with a child under fourteen years of age with “ten years difference” (Pen. Code, § 286, subd. (c)) and one count of forcible lewd act upon a child (Pen...
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Opinion Plaintiff, Thomas J. Barnes, appeals from an order taxing costs after this court had reversed a summary judgment and remanded for trial. In an order to show cause, we raise the issue of whether an order taxing costs is appealable. The parties have briefed the issue. We conclude such an order is not appealable and dismiss the appeal. On December 18, 1991, summary judgment was entered at th...
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Opinion In an asbestos personal injury action and related claim, a partial directed verdict was entered in favor of an asbestos insulation distributor for plaintiff’s failure to prove exposure to the distributor’s product. We, too, find insufficient evidence of exposure and affirm the judgment. Statement of Facts Edward G. Dumin (Dumin) sued for personal injuries sustained in wo...
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Opinion Amwest Surety Insurance Company appeals from an order denying motion to set aside summary judgment and exonerate bail and *578 denial of motion for reconsideration of that order. 1 Amwest contends that the trial court acted in excess of its jurisdiction in declaring the appeal bond forfeited while the appeal was still pending and before the defendant was re...
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Opinion Pratt & Whitney Canada, Inc. (Pratt) appeals from a $4.9 million judgment in a wrongful death action by the heirs of two United States Marine Corps pilots killed in a helicopter crash. Pratt contends the trial court abused its discretion in refusing to grant relief from discovery sanctions, which precluded it from contesting liability or proving the comparative fault of others who...
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Opinion Here we hold that arson of an inhabited structure or property (Pen. Code, § 451, subd. (b))1 is a general intent crime. Paul Hyun Lee appeals from a judgment, following court trial, of one count of arson of an inhabited structure or property (§ 451, subd. (b)) and *661one count of arson of property of another (§ 451, subd. (d)). He asserts that the trial court erred in holding that arson o...
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Opinion When George and Elizabeth Green went to a mortgage broker to obtain a loan for the new $440,000 house they wanted to buy in Coto de Caza, they had a monthly income in excess of $16,000, more than $50,000 in savings, and six pieces of real property with a net value of $290,000. Their debts (exclusive of encumbrances on their real property) were less than $35,000, and ove...
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Opinion Procedural History On October 1,1990, plaintiffs Gerald Garcia, Jr., and Laura Garcia filed a complaint against defendant/respondent Hyster Company. The complaint charged that, while operating an “order picker” designed and manufactured by Hyster Company, Gerald Garcia was crushed between the order picker and a cross-beam. The complaint sought damages for Gerald Garcia’s phys...
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Opinion We granted an alternative writ of mandate in this case to decide a single issue: the validity of the policy of the Los Angeles Superior Court Appellate Department that the time to file a notice of appeal runs from the date the clerk mails a notice of ruling. We conclude the policy is invalid because it conflicts with California Rules of Court, rule 122, which governs the subject. Unde...
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*677 Opinion In this action for title abstractor’s negligence, we hold that the negligence of the abstractor did not cause the property to lose value. Therefore, the property owner is not entitled to damages measured by the loss in value of the property. We also hold the trial court correctly determined other aspects of the award of damages. We affirm. Facts In 1976, He...
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Opinion Plaintiffs appeal from a judgment of dismissal following an order granting defendants’ motion for summary judgment. Plaintiffs seek damages for an arm injury suffered by plaintiff Wattenbarger during a major league baseball tryout conducted by defendants. The trial court concluded plaintiffs’ claim is barred by the doctrine of assumption of risk. We shall reverse. I Defe...
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*759 Opinion Gorgonia Alvarez Burgos appeals a judgment dismissing her first amended complaint for damages for personal injury against Karen Tamulonis as personal representative of Armando Moscaritolo, deceased, after the court sustained Tamulonis’s demurrer without leave to amend. (Code Civ. Proc., 1 § 581d.) The basis for sustaining the demurrer was that the action a...
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Opinion Donald R. McNeely appeals the judgment on his conviction of 10 counts of residential burglary and 1 count of failure to appear enhanced by a prior serious felony conviction, taking property worth more than $25,000 and committing crimes while on bail. (Pen. Code, 1 §§ 459/460, 1320.5, 667, subd. (a), 12022.6, subd. (a), 12022.1.) On September 27, 1989, McNeely entered a guilty plea i...
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Opinion Gonzalo and Felicitas Tovar and their son Nefi Tovar appeal from a judgment entered in favor of Agostino and Catherine Tassone for *767 fraudulent transfer. Appellants argue that there cannot be a fraudulent transfer, as to a creditor, of property subject to a declaration of homestead because such property is exempt from creditors up to the value of the homestead. We agree and reverse...
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Opinion I. Introduction A. Background This is an appeal and cross-appeal from the second multimillion dollar judgment rendered in bad faith actions brought by investors in Technical Equities Corporation (Technical Equities) against National Union, 1 the company’s primary insurance carrier. Respondents and cross-appellants herein are the plaintiff-investors in ...
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Opinion In this action for declaratory relief plaintiff sought a declaration that he is entitled to advertise his business as an “accounting” service even though he is not a certified public accountant. The State Board of Accountancy successfully demurred to the complaint, and the action was dismissed. Plaintiff appeals. Facts Plaintiff is not a certified public accountant. He h...
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Opinion Introduction Petitioner, a defendant in a criminal trial, seeks to prohibit the county sheriff’s department from supplying the bailiff in petitioner’s trial, in which deputies from that sheriff’s department will also testify for the prosecution. Petitioner contends that the common affiliation of bailiff and sheriff’s deputy witnesses imposes too great a burden on defense atte...
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Opinion Defendant and appellant Servando Marquez appeals from the judgment entered following a jury trial that resulted in his conviction of three counts of lewd conduct upon a child under the age of 14. He *1318 contends: the trial court erred in (1) limiting defense counsel’s cross-examination of a codefendant who pleaded guilty to molesting the victim; (2) refusing to inst...
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Opinion Respondent Robert L. Hutchins filed a seaman’s personal injury action under the Jones Act (46 U.S.C. § 688 et seq.) and general maritime law against appellant Juneau Tanker Corporation (Juneau) 1 and OMI Corporation (OMI). The action was filed in superior court pursuant to the “savings to suitors clause” which provides state courts with concurrent maritime jurisdiction....
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Opinion Conrad Coronado appeals from a court trial determination that he is a mentally disordered offender. (MDO; Pen. Code, § 2960 et seq.) He contends: “I. There was insufficient evidence to support the court’s finding that the MDO criteria had been proven. II. Granting a petition releasing the appellant from confinement as an MDO prevented the Board of Prison Terms from re-certifying him an ...
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Opinion Lois J. Christie appeals a portion of a September 1992 order of the family court terminating the court’s jurisdiction over the matter of spousal support as of June 1, 1994, subject to its jurisdiction to alter, terminate or modify support in the interim, and immediately terminating its jurisdiction to extend spousal support or spousal support jurisdiction beyond June 1, 1994. Finding ...
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*702 Opinion This is an appeal of a second degree murder conviction based solely on circumstantial evidence. On May 17, 1991, Fritz Bieth was severely beaten and shot to death. Apparently new and unused dildos, “x-rated” publications, a container of body oil, ajar of petroleum jelly, lingerie, and a G-string were found with his body inside his van which was parked next to a motel well known f...
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Opinion The issue presented in this appeal is: may a former spouse be ordered to divest herself of her interest in a policy insuring her former husband’s life because he objects to her continued retention of the policy? We hold that she cannot. Appellant Karen Mick Bratton appeals an order in favor of respondent Ronald E. Bratton, entered in their marriage dissolution proceeding, directing he...
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Opinion Defendants and appellants Ana Al-Rad Levi Guinn and Jamal Hussein Johnson appeal their convictions of murder (Pen. Code, § 187) and robbery (Pen. Code, § 211). Defendant Guinn was also charged with a special circumstance allegation that the murder was committed during the commission of a robbery. The special circumstance was found true. (Pen. Code, § 190.2, subd. (a)(17)(i).) An e...
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Opinion Concern about potential for arbitrariness in punitive damage awards by juries has recently led to recognition of certain constitutional, due process limitations on the imposition of such awards. In this case, the appellant contends that one of those limitations, the requirement of judicial review, must apply to a punitive damage award assessed not by a court or a jury, but by a pr...
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Opinion Defendant Cruz Alberto Valenzuela appeals following a guilty plea to transportation of cocaine (Health & Saf. Code, § 11352, subd. (a)). He contends the trial court erred in denying his motion to suppress evidence seized from his vehicle when he was stopped and questioned at an agricultural inspection station. We agree and reverse. Facts The facts are essentially undispu...
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Opinion A driver has an accident with another vehicle driven by an uninsured motorist. The driver has uninsured motorist coverage for the vehicle he is driving. He also has uninsured motorist coverage with a different insurance company for another vehicle he owns. Here we hold that under Insurance Code section 11580.2, the driver may not claim uninsured motorist coverage under the po...
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Opinion The primary issue raised in defendant’s appeal is whether costs awarded after a successful appeal were properly considered pre-offer costs in determining whether the plaintiff received a more favorable result at trial after rejecting an offer of settlement pursuant to Code of Civil Procedure section 998. We affirm the trial court’s finding those costs should be included in determining pla...
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Opinion Conrad Andresen (husband) appeals from an order denying his motions to set aside a 1987 default and vacate a 1991 default judgment in this marital dissolution action. We affirm. Statement of Case and Facts In May 1986, Elizabeth Andresen (wife) filed a standard form petition for dissolution of the parties’ marriage. Part 5 of her petition was completed as follows: “5. Declaration ...
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Opinion At issue in this case is whether a mobilehome park owner may charge resident mobilehome owners for the cost of capital improvements as a variable-expense item supplemental to a fixed base rent. We hold that nothing in Civil Code section 798.31 (undesignated section references will be to this code) precludes this practice, capital expenses being a traditional component of rent and there ...
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*1238 Opinion The question presented is whether, as prevailing parties in a declaratory relief action brought against the Insurance Commissioner as conservator of an insolvent insurance company to challenge the commissioner’s designation of priority status, appellant policyholders are entitled to attorney fees and costs as provided for in their contract with the insurance company. We hold tha...
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Opinion This is an appeal from a judgment finding in favor of defendant in an action for declaratory relief, following a nonjury trial. The trial court found, inter alia, that defendant Lawyers Title Insurance Corporation 1 had no obligation to prosecute an action on behalf of plaintiffs Paul A. Manneck and Jennifer H. Manneck-Regina or to indemnify them for any losses since th...
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Opinion Appellant Richard Eugene Gentry appeals from the imposition of a $5,000 restitution fine pursuant to Government Code section 13967, subdivision (a). Appellant contends that it was error to impose the fine because it violated the terms of his plea agreement. Arguing in the alternative, appellant contends that even if the plea bargain was not violated, it was *1376 error to impose the r...
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Opinion David Parsons, M.D., appeals the court order dismissing his action with prejudice and vacating his previously obtained dismissal without *869 prejudice when he voluntarily dismissed following the sustaining of a demurrer during the period of time in which he was given leave to amend. For the following reasons, we reverse with directions to enter an order dismissing Parsons’s complaint...
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Opinion We confront yet another “move away” case in family law. We revisit our previous opinion in In re Marriage of McGinnis (1992) 7 Cal.App.4th 473 [9 Cal.Rptr.2d 182], and the California Supreme Court precedent upon which it was based. Where, as here, the parents of a kindergartner are going to live a thousand miles from one another, a shared parenting arrangement cannot work. The trial court...
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Opinion Shelley C. appeals from a determination of the juvenile court declaring minors Derek, Darren, and David free from her custody and control. (Welf. & Inst. Code, § 366.26.)1 We conclude inadequate reunification services were provided to this family, and also conclude the juvenile court erroneously denied regular visitation between this mother and her children after terminating reunification...
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*911Opinion Jose O. (Father) appeals an order of the Juvenile Court establishing jurisdiction over his two minor children, Carmen O. (age four) and her younger brother, Francisco O. (age three), and removing the children from his custody. The order was based on a finding under Welfare and Institutions Code section 300, subdivisions (d) and (j) that Father had sexually abused Carmen and that Franci...
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Opinion Christopher Coulter was an amateur sleuth. By hiding two small tape recorders in his pockets, he boasts, he covertly *925 recorded over 160 private conversations with his supervisors and coworkers at Bank of America, where he was employed. In this case, his sleuthing has cost him $132,000, the damages awarded the bank and 11 of its employees under the Privacy Act (Pen. Code, § 630 et ...
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Opinion These appeals require answers to four questions: *1010 (1) Whether the trial court properly rejected the contention of the California Superintendent of Public Instruction, and other plaintiffs, that a public school district may never lawfully contract for classroom display of “Channel One,” a current events video program which contains commercial advertisements; ...
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Opinion William Melton and Judith Anne Wells (formerly Melton) dissolved their marriage in 1983. They divided their community property and in March 1985, entered into a stipulation for entry of judgment and order, which settled the remaining issues. By this stipulation William agreed to make various payments to Judith. In paragraph F, under dispute here, the parties provided for division of Willia...
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Opinion Frank Gomon appeals from a summary judgment entered against him in his action against TRW, Inc. Although he raises a plethora of arguments, the primary issue is whether TRW impermissibly disclosed “a consumer report” or a “consumer credit report” on him, as those terms are defined in the Consumer Credit Reporting Agencies Act (Civ. Code, § 1785.1 et seq., hereafter CCRAA) 1 ...
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Opinion Defendant was convicted in a jury trial of driving or taking a vehicle (Veh. Code, § 10851, subd. (a)), and was placed on probation for three years. On appeal he challenges the instructions given to the jury differentiating the charged offense from the lesser included offense of joyriding (Pen. Code, § 499b). We find the instructions defective, and we reverse the conviction. Facts D...
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Opinion This appeal addresses the constitutionality of a curfew regulation aimed at controlling civil unrest. We conclude that the curfew regulation passes constitutional muster in that it is neither overly broad nor impermissibly vague. Facts On April 29, 1992, widespread rioting, looting, arson, violence, and general civil disorder broke out in the County of Los Angeles. Milit...
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Opinion A jury convicted Charles Earl Ross (Ross) of voluntary manslaughter in violation of Penal Code section 192, subdivision (a), 1 and also found it true that Ross personally used a firearm in the commission of the offense within the meaning of section 12022.5, subdivision (a). 2 Ross was sentenced to the lower term of three years for the voluntary manslaughter conviction. The court t...
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Opinion In this appeal, we interpret a procedural provision in the California Endangered Species Act (CESA). (Fish & G. Code, § 2050 et seq.; all further references to undesignated code sections will be to the Fish and Game Code unless otherwise specified.) That provision guides the Fish and Game Commission (Commission) in determining whether to list a species as a candidate for “endanger...
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Opinion I. Introduction In this case we hold that the standard of malice set forth in New York Times Co. v. Sullivan (1964) 376 U.S. 254 [11 L.Ed.2d 686, 84 S.Ct. 710, 95 *1255 A.L.R.2d 1412], requiring a public official or public figure to prove knowledge of falsity or reckless disregard of the truth in order to establish a news media defendant’s l...
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Opinion May a convenience store, with a parking lot design typical of the vast majority of such businesses, be held liable when a third party negligently drives his car over a concrete wheelstop and curb, onto the storefront sidewalk injuring a pedestrian? When there is nothing requiring customers to stand in a fixed location adjacent to the parking area, and when there have been no prior such ...
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Opinion In this mandate proceeding (Code Civ. Proc., § 1085) challenging the validity of the housing element and, to a lesser extent, the land use element of the April 24, 1990, version of the general plan for the City of Encinitas (City), three of the six petitioners (Plaintiffs Ismael Hernandez, Hildeberto Garcia and Buenaventura Ayala) are homeless day laborers working for years in Nor...
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Opinion I Introduction Defendants Rodney J. Davis and Mihan Davis (defendants) appeal from a judgment in favor of plaintiffs James C. Rogers and Sonhui Rogers (plaintiffs). 1 Plaintiffs had sued defendants, asserting two “causes of action,” for specific performance, or alternatively, damages, based on the allegations that defendants had breached a contract to sell to ...
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Opinion I Introduction Florita Lee Jackson (Jackson) appeals from the trial court’s order denying her motion to set aside the clerk’s default and a default judgment (order) 1 and from the default judgment and order of forfeiture (judgment). II Factual and Procedural Background In March 1990, officials at an elementary school in Redlands contacted the lo...
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Opinion The County of Riverside (County) appeals from a judgment against it in an action brought by a rape victim, Amylou R. We modify the judgment to eliminate any recovery for tortious acts for which the County is statutorily immune, and affirm the judgment as modified. Factual and Procedural Background On March 24, 1986, Amylou, then aged 15, and her friend, Diane Harper, wer...
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Opinion I. Introduction In this case, we bring into question a practice followed in some superior courts in Los Angeles County. Some superior courts do not file judicial arbitration awards when they are delivered to the court. Instead, some courts date-stamp the awards when received. The awards are then held outside the case file until the time for filing a trial de novo r...
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Opinion Roland Richie appeals from convictions of evading a pursuing police officer and joyriding. With respect to the former, he raises three separate objections: that the judge (1) failed to instruct the jurors on an element of the offense, (2) failed to instruct the jury sua sponte on the meaning of the terms “willful” and “wanton” as they appear in Vehicle Code section 2800.2, and (3) direc...
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Opinion James Thom and his business, Glendale Spa City, Inc. (Spa City), appeal from a judgment upon demurrer entered in favor of the City of Glendale (Glendale) in their action against Glendale and its employee and fire marshal, John Orr, for fire damage to Spa City. The complaint alleges that Orr set a fire at Spa City while acting in his official capacity and that Glendale is liable fo...
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Opinion Appellant contends that the trial court erred by denying his motion to vacate a stipulation for paternity blood tests. Appellant bases his appeal on four contentions: (1) that the stipulation constituted an unknowing and unintelligent waiver of his constitutional right to a fair trial, (2) that the trial court exceeded its jurisdiction by giving effect to a stipulation that violates pub...
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Opinion The Travelers Indemnity Company of Illinois (Travelers) appeals from an order dismissing its first amended complaint after the demurrer of the respondents 1 was sustained without leave to amend. The pivotal issue in this case relates to the application of the 180-day limitations period set out in Code of Civil Procedure section 3493A. We *1436 conclude...
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Opinion Factual and Procedural Background Lilian Hale (Hale) was driving on the wrong side of the road when she collided with a car driven by Carol DeFelice (DeFelice). Hale was taken to a hospital where it was determined she had severe left-side paralysis and multiple malignant brain tumors. She died 10 days later. DeFelice and her husband (DeFelices) filed a personal injury action against...
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Opinion Grace Joyce Ford appeals judgments in favor of Miller Meat Company (Miller) and Alpha Beta Company (Alpha Beta) in a nonjury *1199 trial. Ford sought to recover damages for injuries sustained when she bit into a fragment of bone contained in ground beef purchased at an Alpha Beta supermarket. We affirm. Our Supreme Court in Mexicali Rose v. Superior Court (1992) 1 Cal.4th 617 [4...
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Opinion Plaintiff Constance Jean Chatwood Hull appeals the judgment of dismissal entered by the trial court after it sustained the demurrers of defendants Elizabeth Irwin, M.D. and Elizabeth Irwin, M.D., Inc. (herein together referred to as Dr. Irwin) and Central Pathology Service Medical Clinic (the Laboratory). Facts The facts, as alleged in the complaint, are as follows: In October 1987,...
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*1467 Opinion Petitioners Thomas P. Nagle, Director of the California Employment Development Department (EDD), and Molly Coye, former Director of the California Department of Health Services (DHS), seek a writ of mandate to compel respondent superior court to grant a protective order prohibiting their depositions (Code Civ. Proc., § 2025, subd. (i)) in a lawsuit brought by real party in inter...
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Opinion Maurice Overten appeals a judgment entered after a jury convicted him of first degree residential robbery (Pen. Code, 1 §§ 211, 212.5, subd. (a)) and found true the special allegation he was armed with a firearm during the commission of the offense (§ 12022, subd. (a)(1) 2 ). He contends the true finding to the firearm enhancement should be set aside because the *1500 prosecutor’s...
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Opinion We review a decision of respondent Workers’ Compensation Appeals Board (Board) that 80 percent of petitioner’s permanent disability should be apportioned to preexisting disability. Because we agree with petitioner that the evidence does not support apportionment, we will annul the Board’s order after reconsideration. Factual and Procedural History Petitioner’s employment with respon...
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Opinion Ed Robinson and Audrey Wilson (residents) appeal from the trial court’s denial of their petition for a writ of administrative mandamus. Residents sought to set aside a decision of the Mobilehome Rent Review Commission (Commission) of the City of Yucaipa (City) allowing a capital improvement rent increase to real party in interest, C. Mouchawar, the owner of Hidden Village Mobile H...
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Opinion Decedent, William Stanley Petersen (William), and respondent, Loretta Victoria Petersen (Loretta), were married for 32 years prior to his death on February 26, 1992. William is also survived by his only child from a previous marriage, Shirley Ann Orr, her husband who is the executor of William’s estate, appellant James C. Orr, and their two children. Loretta has two daughters from a pre...
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Opinion A jury convicted defendant Alejandro M. Lee as charged in count 1 of attempted murder of Turk Young, Jr., with premeditation and deliberation (Pen. Code, §§ 664, 187) 1 and in count 2 of assault with a firearm against Sean Green (§ 245, subd. (a)(2)). The jury found true the special allegations as to both counts that Lee had personally used a firearm (§ 12022.5, subd. (a)) and as to c...
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Opinion Lisa P. (Lisa) and Kenneth L. (Kenneth) each appeal from an order terminating their parental rights to Cicely L. (Cicely). Kenneth alone appeals from a subsequent order similarly terminating their parental rights to Cicely’s older brother, David L. (David). Kenneth contends that reasonable reunification services were not provided to him because he was not allowed any visitation with David...
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Opinion Section 1985.3 of the Code of Civil Procedure provides a procedural mechanism designed to give notice to a “consumer” when the consumer’s “personal records” are being subpoenaed by a “subpoenaing party.” In this case, we conclude that when a county is a defendant in a civil *1842 action alleging sexual harassment and seeks to subpoena personal records (here, medical r...
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Opinion A celebrated decision by Division Five of this court construed the Uniform Partnership Act (Corp. Code, § 15001 et seq.) as requiring that income generated by the winding up of a dissolved law firm’s unfinished business is—absent a contrary agreement—to be allocated to the former partners according to their respective interests in the defunct partnership. (Jewel v. ...
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Opinion Plaintiffs Jesus Hernandez and his wife Mary Hernandez 1 appeal a judgment on their third amended complaint against defendants Carde Pacific Corporation (Carde) and Badger Construction Equipment Company (Badger) for damages for personal injury arising from Employee’s on-the-job injury on the premises of his employer National Steel and Shipbuilding Company (NASSCO). Plai...
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Opinion I Introduction Robert Lee Jenkins (Jenkins) appeals the judgment entered following his conviction by jury of two counts of torture (Pen. Code, § 206), one count of mayhem (Pen. Code, § 203), two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), one count of corporal injury to a cohabitant (§ 273.5, subd. (a)) and one count of possession of a firearm by a felon...
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29 Cal.App.4th 272 (1994) 34 Cal. Rptr.2d 490 CITY OF EL MONTE et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; RUDY LEE BULLEN, Real Party in Interest. Docket No. B084361. Court of Appeals of California, Second District, Division Five. October 14, 1994. *274 COUNSEL James Francis Wilson for Petitioners. No appearance for Respondent. R. Samuel Paz, David A. Xavier and...
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Opinion A magistrate purported to reduce two felony charges to misdemeanors because she believed the evidence presented at the preliminary hearing was insufficient to hold the defendant to answer felony charges. Neither offense was a felony-misdemeanor (wobbler) as to which the reduced crime was a misdemeanor. We conclude the magistrate was without power to reduce the offenses to these misdemea...
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Opinion Plaintiff and appellant Charles John “Chuck” Davis, Sr., appeals after the trial court granted summary judgment in favor of defendant Consolidated Freightways (CF) and other defendants in plaintiff’s action arising out of plaintiffs alleged wrongful termination by CF, his former employer. 1 We conclude plaintiff failed to raise triable issues of material fact concerning...
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Opinion Apellant Carol Butcher was an overnight guest at the home of Donald and Peggy Gay in Pine Mountain on August 4, 1990. On February 20, 1991, appellant filed this action against respondent Donald Gay. She alleged that she had contracted Lyme disease “as a result of exposure to infested ticks” on respondent’s property, and that respondent had “failed to spray the area, post signs or preven...
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Opinion The County of San Bernardino (the county) and Richard Williams, Sheriff of the county (appellants), have appealed from a judgment granting the petition for writ of mandate (Code Civ. Proc., § 1085) of Deputy Sheriff Jeanette Tapia (Tapia). The judgment ordered the county to pay Tapia her salary and benefits for the period she was away from work because of work-related injuries. 1 Appe...
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Opinion Appelant, Cynthia Gudger, made two telephone calls to the secretary of the presiding judge of the municipal court during which she threatened to buy a gun and shoot another judge handling an unlawful detainer matter against her if she was evicted from her apartment and became homeless. Appellant contends that her conviction for threatening the life of a judge (Pen. Code, § 76) 1 must ...
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Opinion The owners of a house rented to a tenant they knew had a drinking problem and kept firearms in the rented dwelling. While under the influence of alcohol, the tenant accidentally shot a visitor. We hold the landlords did not owe a duty of care to the visitor because the injury was not foreseeable. Facts and Procedure On February 8, 1992, plaintiff Lisa Sturgeon visited a ...
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Opinion Robert Gruntz appeals from the judgment entered following a jury trial in which he was convicted of the misdemeanor of failing to provide for his two minor children (Pen. Code, § 270). He was sentenced to 360 days in county jail. He appealed to the superior court, which affirmed the judgment in an opinion filed September 1, 1993, which was certified for partial publication. We ord...
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Opinion Defendant and cross-complainant Ike Naber owns a condominium unit in a property development managed by plaintiff and cross-defendant Park Place Estates Homeowners Association, Inc. (Association). After Naber refused to permit the Association to conduct repairs in his unit, the Association filed suit and obtained preliminary injunctive relief. Naber later cross-complained, alleging...
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Opinion If this case is an example, the term “civil procedure” is an oxymoron. Plaintiff’s attorney appeals a discovery order that he pay $950 in sanctions. We echo the trial court’s comment when he reviewed the facts that gave rise to this order: “Unbelievable.” What is believeable, however, is that the order is not appealable. Nevertheless, we treat it as a writ petition. No court should ha...
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Opinion In these six consolidated appeals Joseph L. Alioto, Angela M. Alioto, and Alioto & Alioto (hereinafter, Joseph L. Alioto Group), Joseph M. Alioto and John I. Alioto, 1 appeal numerous orders of the trial court enjoining some or all of the appellants to comply with a receiver order and assessing sanctions for the willful failure to comply with the order. Joseph M. Alioto...
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Opinion Factual and Procedural Background In 1990, David Balestrieri and Michael Keenan (collectively investors) opened securities accounts with Titan/Value Equities Group, Inc. (Titan). At the time of opening the accounts, they signed forms agreeing to submit any dispute to arbitration before the National Association of Securities Dealers *485 (NASD). In 1992, however, ...
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Opinion This writ petition arises from the effort by real party in interest Landmark Insurance Company (Landmark) to extricate itself from a “bad faith” lawsuit. Landmark’s insured had alleged that numerous insurers including Landmark had provided coverage for a claim, that they had failed to defend and indemnify in connection with that claim, and that this failure breached their contract...
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Opinion In this action seeking rescission of agreements relinquishing a child for adoption through a licensed private adoption agency, plaintiffs Lea Tyler and Matthew Darrah 1 appeal from the trial court’s judgment in favor of defendants Children’s Home Society of California (CHS), Davis Crisis Pregnancy Center, Inc. (DCPC), Kathy Huntziker, and Dee Heszler. On appeal plaintif...
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Opinion Renita S. petitioned for a writ of mandate after she was taken into custody under an arrest warrant issued by the juvenile court. Renita claims her arrest and detention were illegal because as a nondetained minor, she should have been personally served with a notice to appear at the initial *555 hearing as prescribed by Welfare and Institutions Code 1 section 660, subdivision (c). T...
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Opinion These consolidated cases represent two attempts to place defendant on outpatient status from Patton State Hospital, pursuant to *619 Penal Code section 1600 et seq. 1 The trial court refused to authorize outpatient status. 2 The first appeal, No. E012545, was filed after a hearing on January 14 and 15, 1993. The second appeal, No. E013445, was ...
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*639 Opinion Appellant Richard P. Selzer contends the trial court erred in allowing his former wife Sheila to move from Ukiah to Santa Rosa where she obtained new employment, while taking the minor child of the former marriage with her. We find no abuse of discretion and affirm. I. Facts and Procedural History The relevant facts may be very briefly summarized for the purposes of backgroun...
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Opinion A subcontractor provided the underlying base material for streets in a new subdivision and contracted with Granite Construction Company to pave these streets. After Granite finished the paving, the sub-base proved defective, damaging Granite’s work, and government inspectors refused to approve the street work. After protracted negotiations, Granite applied a seal coat to the stree...
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Opinion Introduction It is hard to imagine another set of legal terms with more soporific effect than indemnity, subrogation, contribution, co-obligation and joint tortfeasorship. Perhaps because the words describe legal relationships between multiple parties, they are vaguely reminiscent of complex mathematical equations which, after all, also describe relationships, except in numbe...
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*732 Opinion SW-846 is not the name of some new gasoline additive marketed by an oil company. It is the title of a manual compiled by the United States Environmental Protection Agency (EPA) dealing with the collection and testing of hazardous waste. The former plant manager of an Anaheim paint manufacturing company, Marion Hale, was convicted under state law of five counts of put...
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Opinion An individual was injured by an intraocular lens that had been surgically implanted in his eye. He sued the manufacturer and distributor of the device for damages. His suit was dismissed by the trial court. We conclude that the victim’s claims of negligence and strict liability under state tort law are preempted by federal law. His claim for breach of the implied warranty of ...
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Opinion Here we complete a trilogy of cases in which we consider discovery of financial records of people living with ex-spouses. *724 In In re Marriage of Tapia (1989) 211 Cal.App.3d 628 [259 Cal.Rptr. 459], we held that contributions by third persons to an ex-spouse’s living expenses should be considered by the trial court in determining the ex-spouse’s ability ...
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Opinion A jury convicted defendant of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(2)), grossly negligent discharge of a firearm (Pen. Code, § 246.3) and possession of a firearm by a convicted *978 felon (Pen. Code, § 12021, subd. (a)). The jury found defendant personally used a firearm (Pen. Code, § 12022.5, subd. (a)), inflicted great bodily injury (Pen. Code, ...
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Opinion Plaintiff, Wen Chang, appeals from a summary judgment in favor of defendant, Redding Bank of Commerce (the Bank), in Chang’s action for unjust enrichment and to impose a constructive trust on funds he claims the Bank misappropriated. The action arises out of the Bank’s setoff of $200,000 against a debt owed the Bank from the business account of Paragon Development Enterprises, Inc...
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Opinion Introduction Defendant and appellant James S. Hamada, M.D. (Hamada) and plaintiff and respondent G. Karlin Michelson, M.D. (Michelson), both of whom practice orthopedic surgery, entered into several agreements providing that Hamada would share his office facilities with Michelson and provide certain billing and other services through his office personnel in exchange for payme...
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Opinion Donald Park, doing business as Century Auto Body & Painting, appeals from a special judgment (Lab. Code, § 3726) 1 assessing a penalty of $2,000 against him for failure to obtain workers’ compensation insurance in violation of section 3700. He challenges the constitutionality of the statutory scheme and in particular section 3726 which, he contends, violates the separat...
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Opinion I. Introduction In this case we hold that a tort action for an employer’s negligent or reckless failure to provide adequate premises security despite knowledge of danger to its employees is precluded by the exclusive remedy provisions of the workers’ compensation law (Lab. Code, §§ 3600, 3601, 3602). Thomas J. Arendell and Chase Wilson appeal from a summary judgment, based on worker...
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*1009 Opinion Introduction Appellant Rudy L. appeals from an order declaring him to be a ward of the court pursuant to Welfare and Institutions Code section 602 based on his commission of vandalism in violation of Penal Code section 594. Statement of Facts On the afternoon of April 29, 1993, appellant spray-painted the letter “A” on the wall of an empty building located at 5327 East Bev...
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Opinion This appeal presents two issues. Is a 1991 amendment to Welfare and Institutions Code section 11350, subdivision (a)(2) to be applied retroactively? It states a noncustodial parent’s reimbursement to the county for welfare benefits paid on behalf of a minor must be equivalent to “[t]he amount of support which would have been specified in an order for the support and maintenance of...
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Opinion Investor appeals from an order declaring her to be a vexatious litigant (Code Civ. Proc., § 391 et seq.) and awarding sanctions in favor of defendant brokers. 1 Statement of the Case Procedural History of Case No. 217876: On October 15, 1991, plaintiff filed a complaint for damages against defendant in Kern County Superior Court. Plaintiff alleged causes...
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Opinion Timothy M. (M.) appeals from an order following a hearing on an order to show cause regarding child support and attorney fees and costs. 1 He contends the trial court erred in refusing to apply the conclusive presumption of paternity pursuant to Family Code section 7540 (Evid. Code, § 621) and finding him to be the biological father of Lindsay (the child). 2 Statement of Facts and...
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Opinion For 30 years, the state has attempted to build a freeway through South Pasadena (the City). However, that attempt has been unavailing because the City has refused to enter into freeway agreements required by statute. (See Sts. & Hy. Code, § 100.2; hereafter undesignated code citations are to the Streets and Highways Code.) In 1982, section 100.4 was *1284 enacted to a...
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Opinion The issue presented is whether a secured creditor who obtains a defaulted debtor’s property can be subject to restitution for the amount of the value of goods furnished the debtor by a third party. The answer is no: unless there are unusual circumstances the equitable remedy of restitution must defer to the rights given a secured creditor by the California Uniform Commercial Code....
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Opinion We affirm the summary judgment granted to the City of Long Beach in this drowning case. Background A four-year-old girl drowned in an apartment house swimming pool, owned by the Azar family and its alter ego, Grande Properties. For approximately the three previous years, the City of Long Beach had, pursuant to its *1372 municipal code, routinely inspected th...
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Opinion When Joseph Miranda sued respondent Fireman’s Fund Insurance Company and its agent, appellant Edward J. Haslam, for negligence and bad faith, Fireman’s Fund settled with Miranda for $1,050,000 and cross-complained against Haslam for indemnity. In a special verdict, the jury held Haslam liable to Fireman’s Fund for the full amount of this settlement. After Haslam’s posttrial motion...
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*1342 Opinion Asefa Taye (Taye), doing business as Pride Home Care Medical, was a provider in the state medical program, administered by the Department of Health Services (Department). Following an audit by the State Controller, it was determined that Taye had been overpaid in the amount of $235,099 for the period from January 1, 1989, through March 31, 1990. Taye filed an administrative appe...
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Opinion In a multidefendant trial involving various drug charges, a jury convicted Juan Manuel Perez of one count of selling and *1317 furnishing cocaine (Health & Saf. Code, 2 § 11352, subd. (a)), one count of possession of cocaine (§ 11350, subd. (a)) and one count of possession of cocaine for sale (§ 11351). The jury also convicted Guadalupe Onate of one count o...
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Opinion This case concerns the validity of California’s obscene matter statutes, Penal Code 1 sections 311 and 311.2, as applied to distributors of such matter under the right to privacy set forth in article I, section 1, of the California Constitution. Finding section 311.2 invalid on this privacy right ground, the Municipal Court, San Diego Judicial District, sustained a demu...
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*1425 Opinion Introduction Plaintiff and appellant Robert Roman (Roman) appeals from the order of dismissal of his action for wrongful termination against defendants and respondents Usary Tire and Service Center and Dan Usary (collectively, Usary) for failure of his counsel to appear at a hearing on an order to show cause (OSC). Roman contends the trial court erred and abused its discretion...
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Opinion In this wrongful death action, appellants contend that the City of San Buenaventura (City) and the County of Ventura (County) and their *1404 agents, failed to adequately “confine” a patient. Tragically, this patient, Kevin Kolodziej (Kolodziej) walked out of a hospital and stabbed 90-year-old Mrs. Velasta Johnson to death. The trial court sustained demurrers wit...
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Opinion San Benito County Superior Court (hereafter the Superior Court) issued a writ of prohibition ordering the Agricultural Labor Relations Board (hereafter the ALRB) to “cease and desist any and all further attempt to impose liability on Heublein in connection with the Hat case.” The ALRB petitioned this court for a writ of mandate ordering the Superior Court to vacate its order grant...
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Opinion Barry J. Spinello sued Amblin Entertainment, Universal City Studios, Inc., and Steven Spielberg for damages, alleging they had appropriated his ideas and were using them for a new movie. Relying on a written agreement which included an arbitration clause, the defendants moved to compel arbitration. The motion was denied and the defendants appeal. We reverse and remand with directi...
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Opinion The City of Los Angeles (City) appeals the dismissal of its action against Centex Telemanagement, Inc. (Centex) for money due on an unpaid tax assessment on grounds the action was barred by the statute of limitations. Centex provides telecommunications management services for a fee to small and medium-sized businesses located in the City. Centex paid the City an annual busine...
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Opinion This appeal is from a wardship order (Welf. & Inst. Code, § 602) based on findings that appellant Jerry R. violated Vehicle Code sections 10851 (auto theft) and 12500, subdivision (a) (driving without a license) and Penal Code section 246.3 (willful discharge of a firearm in a grossly negligent manner). Appellant, who was only 12 years old, was removed from the custody of his pare...
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Opinion I. Introduction In this case we hold that an absence of legal representation in administrative proceedings, and purported misadvice by an agency official as to the proper method of taking an administrative appeal, do not excuse a prospective litigant from the requirement of exhausting administrative remedies as a jurisdictional prerequisite to resort to the courts. Park ...
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Opinion Plaintiff Jordan-Lyon Productions, Ltd. (J-L) appeals from summary judgment granted in favor of defendant Cineplex Odeon Corporation (Cineplex) on plaintiff’s complaint for damages based on allegations that Cineplex violated J-L’s lien rights under Code of Civil Procedure sections 491.440 and 491.460. The complaint alleges that in another action by J-L against New Visions Entertai...
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Opinion This insurance declaratory relief action arises from an incident in which Anthony Yamamoto was shot by a minor, Bruce B. (Bruce), who used his father’s gun. Relying on factual findings of intentional conduct made in juvenile court and applying collateral estoppel, the trial court granted summary judgment in favor of Western Mutual Insurance *1478 Company (Western), th...
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*1491 Opinion I. Introduction Plaintiff appeals from a judgment entered after the trial court determined, on a summary judgment motion, that plaintiff’s attorney malpractice action was time barred. The applicable statute of limitations (Code Civ. Proc., § 340.6) 1 is tolled during that period “[t]he attorney continues to represent the plaintiff regarding the speci...
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*1502 Opinion Petitioner, La Seigneurie U.S. Holdings, Inc. (LSUS), seeks a writ of mandate directing the superior court to set aside an order denying its Code of Civil Procedure section 170.6 1 motion to disqualify Judge Ronald M. Sohigian. On January 7, 1994, real party in interest, Paul M. Clark, Jr. (Clark), filed a complaint against, among others, LSUS. Judge Jerold A. Krieger was as...
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*Supp. 3Opinion WATAI, J. Appellant appeals from an order denying his motion to vacate a default and default judgment. The trial court ruled that appellant was required, and failed, to file his motion within a reasonable time after appellant learned that a default had been entered against him. Appellant argues that, under Rogers v. Silverman (1989) 216 Cal.App.3d 1114 [265 Cal.Rptr. 286], he had t...
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Opinion Plaintiffs Roger D. Colbaugh, a real estate broker, and Rodney L. Niebuhr, a real estate salesperson associated with him, sued to recover a commission allegedly due them as cooperating brokers who were the procuring cause of the sale of certain real property. After settling the case with the buyers of the property and the real estate agents who received the cooperating broker...
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29 Cal.App.4th 1597 (1994) 35 Cal. Rptr.2d 470 QUAIL BOTANICAL GARDENS FOUNDATION, INC., Plaintiff and Appellant, v. CITY OF ENCINITAS et al., Defendants and Respondents. Docket No. D020059. Court of Appeals of California, Fourth District, Division One. November 8, 1994. *1599 COUNSEL Johnson, O'Connell & McCarthy, Kevin K. Johnson and John Evan Edwards for Plaintiff and Appellant. Mark A. Po...
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Opinion Ronald P. and Carol Thon, Rolling Hills Estates, Ltd., Rolling Hills Sanitation, Inc., and Raymond Grimm, Sr. (Plaintiffs) *1548 appeal a postjudgment order awarding certain costs to Ronald Thompson and Jack Wireman. After the Rainbow Municipal Water District (the District) rejected their proposed sewer plan in the Fallbrook area, Plaintiffs filed a complaint, followed by several am...
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Opinion Carlos Isaguirre Salazar (appellant) pled guilty to one count of sale of cocaine. (Health & Saf. Code, § 11352.) The court suspended imposition of sentence and placed appellant on three years of probation upon condition that he serve one year in county jail. Appellant violated probation twice, and each time probation was revoked and reinstated on the condition that he waive credit...
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Opinion Defendant Jose Juan Garnica appeals his convictions of two counts of first degree murder (Pen. Code, § 187, subd. (a)), and one count of *1560 conspiracy to commit murder (Pen. Code, §§ 182, 187). The jury found true a multiple-murder special-circumstance allegation (Pen. Code, § 190.2, subd. (a)(3)) and, with respect to each of the murder counts, found true allegations that defendant...
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Opinion In this personal injury action, plaintiffs sued the defendant (Dye Creek) after their car struck one of Dye Creek’s black Angus bulls that was positioned on the roadway of State Highway 44 in Lassen County. The collision occurred at night and pitted the plaintiffs’ 1977 Toyota Corolla against a bull that weighed approximately 1,200 to 1,500 pounds. Finding that Dye Creek owed no duty to...
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Opinion In this personal injury automobile collision lawsuit, plaintiffs-appellants were awarded a $10,000 verdict. Claiming the award was inadequate they moved for a new trial. The motion was denied. Appellants contend the trial court erred in denying their new trial motion because the jury rendered a quotient verdict, defense counsel committed misconduct during jury voir dire, and defen...
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Opinion In this appeal, we are asked to review the continued validity of County of Los Angeles v. Hartford Acc. & Indem. Co. (1970) 3 Cal.App.3d 809 [83 Cal.Rptr. 740], with respect to the liability of a surety on a subdivision tax bond required for condominium conversion. On April 17, 1990, Amador Oaks Partners, as principal, and Golden Eagle Insurance Company ...
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Opinion In this proceeding, plaintiffs challenge the constitutionality of Welfare and Institutions Code section 14016.5, which provides that MediCal beneficiaries will be assigned to and enrolled in a managed care plan *1762 unless the Medi-Cal beneficiary timely elects to obtain services from a fee-for-service provider and certifies that he or she has an established relation...
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Opinion San Diego Police Officers Association (POA) and Harold Goudarzi appeal a judgment for the City of San Diego (City) on the grounds it *1739 was error to conclude an underlying action (the Loche action), against Goudarzi and the City, did not arise out of an act or omission in the scope of Goudarzi’s employment as a police officer, within the meaning of Government Code ...
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Opinion A jury found Daniel Joseph Forster guilty of one count of driving under the influence of alcohol in violation of Vehicle Code 1 section 23152, subdivision (a), one count of driving while having a blood-alcohol concentration of .08 percent or more in violation of section 23152, *1750 subdivision (b), and one count of driving with a suspended license in violation of section 14601.2, s...
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Opinion Kenny Wayne Tate appeals from a trial court finding that he is a mentally disordered offender (MDO) within the meaning of Penal Code section 2962. 1 Appellant concedes the order is supported by substantial evidence but argues that the trial court should have ordered his discharge pursuant to section 2968 because of an improvement in his mental condition. We affirm and h...
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*1688 Opinion Penal Code section 667 authorizes imposition of an additional five-year prison term on “any person convicted of a serious felony” for each separate prior conviction of “a serious felony in this state” the person has suffered. Section 667 defines “serious felony” by reference to subdivision (c) of Penal Code section 1192.7. We revisit these provisions in a case in which the Peo...
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Opinion Noreen Martin, a long-term employee of Lockheed Missiles & Space Company, Inc., was laid off at age 65. She sued Lockheed, alleging sex and age discrimination under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) and the cognate provision of the California Constitution (Cal. Const., art. I, § 8). Lockheed’s motion for summary judgment was granted; Marti...
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Opinion Petitioners, Fairmont Insurance Company (Fairmont) and Transamerica Insurance Company (Transamerica) (collectively referred to as petitioners), seek to have us reverse an order granting summary adjudication of a cause of action for declaratory relief relating to their duty to defend. In connection with their request, we issued an alternative writ. After considering the matter, inc...
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Opinion I. Introduction Frederick Douglas Stills appeals from judgment of conviction for battery with serious bodily injury (Pen. Code, § 243, subd. (d)). He contends that the trial court committed reversible error by (a) failing to obtain a voluntary and intelligent waiver of his constitutional rights before he admitted a prior conviction, (b) not excluding evidence of the prior conviction i...
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Opinion I. Introduction Appellant Robin Re Sharp timely appeals from his conviction after a jury trial of seven felony counts of forcible lewd and lascivious conduct with a child under the age of fourteen years (Pen. Code, § 288, subd. (b) [counts 3, and 5, relating to Joann G.; counts 20, 22, 24 and 26, relating to Tammy G.; count 44, relating to Vanessa P.]), 1 one felony count of forcibl...
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*1800 Opinion Frank Boccato and Ronald Duffaut (Boccato and Duffaut or appellants) appeal the dismissal of their action challenging an ordinance enacted by the City of Hermosa Beach (the City) that required them to obtain conditional use permits in order to continue to sell alcoholic beverages at their respective businesses, Boccato’s Groceries and Dan’s Liquor. Boccato’s Gr...
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Opinion Appellant, Brenelli Amedeo, S.P.A., appeals from a judgment of dismissal after the trial court sustained respondents’ demurrer without leave to amend his complaint. Appellant contends the doctrine of res judicata does not preclude the present action as it involves a different primary right. It also contends an action seeking to impose alter ego liability may be brought outsid...
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Opinion Donald Gordon Black (Black), Catherine Black and six related companies owned and/or controlled by Black (collectively, appellants) appeal the dismissal of their action against respondents Bank of America N.T. & S.A. (the Bank) and certain bank officers. They assert the court improperly sustained without leave to amend respondents’ demurrer to their first amended complaint. We affi...
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Opinion In this action Dr. W. Thomas Coombe (Dr. Coombe) sues San Diego Hospital Association, doing business as Sharp Healthcare and Sharp *12 Memorial Hospital (Sharp Memorial or the hospital), and the manufacturer of a KTP laser to recover damages for injuries he allegedly sustained while performing surgery at the hospital. The hospital’s demurrer to the strict liability ca...
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Opinion At the time the instant judgment was entered Code of Civil Procedure section 1 685.040 did not allow attorney fees incurred in enforcing a judgment to be included as costs. The section was later amended to allow such fees where the underlying judgment includes an award of attorney fees arising from contract. Here we hold that an award of attorney fees incurred after the date of the ...
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Opinion Tony M. Grissom (Husband) appeals the April 22, 1992, order granting the motion of Marilyn Grissom (Wife) to set aside an April 25, 1980, “Interlocutory Judgment of Dissolution of Marriage” as well as a marital settlement agreement, on the grounds Wife was fraudulently induced to sign a document stipulating to property and support provisions and the placement of the dissolution petition...
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*116 Opinion With the support of the district attorney who successfully prosecuted him, appellant Jose Barraza moves for “stipulated reversal” of his misdemeanor conviction. We shall deny the motion. After an eight-day trial in the San Francisco Superior Court, appellant was acquitted of attempted murder, attempted voluntary manslaughter and assault with a deadly weapon, but was convicted o...
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Opinion Appellant Westwinds Mobile Home Park, a general partnership (hereafter Owner), owns a mobilehome park in Escondido, *88 California (hereafter City). That park is subject to an Escondido rent control ordinance which has generated significant appellate activity. 1 Owner sought a rate increase under that ordinance, and the review board granted only a fraction ...
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Opinion Plaintiff appeals from a judgment entered in favor of defendant after jury verdict. On or about March 17, 1989, appellant DRG/Beverly Hills, Ltd. (hereinafter DRG), as lessor, and respondent Chopstix Dim Sum Cafe & Takeout III, Ltd., through its general partner, Chopstix III, Inc. (hereinafter collectively Chopstix), as lessee, entered into a written lease agreement for premi...
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Opinion Following denial of his motion to dismiss on speedy trial grounds, defendant and appellant Marcos A. Gutierrez pleaded nolo contendere to first degree residential burglary, one prior serious felony conviction, and two prior prison terms. The court sentenced appellant to a term of nine years in state prison. Appellant appeals from the judgment with a certificate of probable cause pursuan...
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Opinion In this medical malpractice case arising out of an emergency room visit, plaintiff Kay James appeals from a judgment of nonsuit in favor of defendants St. Elizabeth Community Hospital and Christopher Louisell, M.D. Nonsuit was granted after plaintiff’s expert was deemed unqualified to testify under Health and Safety Code section 1799.110, subdivision (c). (All *76 fur...
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*280 Opinion In this opinion we hold that Los Angeles County’s (County) policy of deeming its off-duty safety police officers to not be engaged in the performance of their duties is ineffective to insulate the County from respondeat superior liability for the alleged wrongful conduct of an off-duty safety police officer in the course of making an arrest. We therefore reverse a summary judgmen...
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Opinion Introduction This appeal contests the trial court’s order imposing a $1,500 sanction on each party’s attorney in a civil liability action. After examining the entire record, we find that the court’s order violated due process because counsel were neither notified of the court’s intent to impose sanctions nor given an opportunity to respond before the court imposed the sanctio...
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Opinion This action upon an indemnity contract was tried by the court upon agreed facts. The court found that appellant United States Elevator Corporation (Elevator) is not entitled to indemnity from respondent Pacific Investment Company (Pacific) for Elevator’s costs of defending a third party lawsuit. We reverse. Background Pacific owned a building in Pacific Palisades. Pacifi...
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*183 Opinion I. Introduction In this case we hold that a petition to compel arbitration may not be denied on the ground of fraud alleged in an unverified pleading, but only upon evidentiary support by an affidavit or declaration under penalty of perjury submitted in opposition to the petition. II. Background Leo Strauch and the Milton Strauch Family Trust (hereafte...
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Opinion On April 29, 1993, an information was filed in Stanislaus County Superior Court charging appellant with three counts of rape in *147 violation of Penal Code section 261, subdivision (a)(4). 1 Counts IV through VI charged appellant with, alternatively, having committed rape in violation of section 261, subdivision (a)(3). 2 Appellant was also charged with the felony false imprisonm...
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Opinion Defendants Martin Santos, Chad Powers and Jose Johnny Romero were involuntary residents of the Sierra Conservation Center, a *173 penal institution located in Jamestown, California. Early in the morning of May 3, 1992, defendants attacked fellow inmate Rene Villareal, beating and stabbing him several times. The attack turned into a generalized brawl in which numerous other inmates, in...
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Opinion Plaintiff Conor O’Donoghue appeals after the trial court granted summary judgment against him on his cause of action for personal injuries he suffered while skiing at Bear Mountain Ski Resort. The court granted summary judgment for defendant Bear Mountain on the basis of “primary assumption of the risk.” (See Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2, 834 P.2d 696].) W...
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Opinion In this defamation action, plaintiff Edward R. Stolz II, doing business as KWOD 106.5 FM, appeals from a judgment upon a jury’s verdict in favor of defendants KSFM 102 FM, Genesis Broadcasting Co., and Chris Collins. Plaintiff contends the trial court erred in (1) determining he is a public figure and the speech involved matters of public concern, (2) instructing the jury that to ...
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*212 Opinion After a 10-week jury trial, defendants Jesus Serrano Salcedo (Serrano), Marcos Nava, and Moisés Serrano Chavez (Chavez) 1 were each convicted on one count of conspiracy to sell or transport cocaine during the period from January 1, 1986, to November 21, 1991 (count 1; Pen. Code, § 182/Health & Saf. Code, § 11352), and multiple counts charging substantive o...
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Opinion A jury convicted Johnaton Sampson George of one count of possession of a controlled substance in jail. (Pen. Code, 1 § 4573.6.) The trial court sentenced George to the middle term of three years in state prison, with two years stayed, to be served consecutively to an eight-year prison term *266 previously imposed in another case. On appeal, George, subseque...
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Opinion Defendant Ricardo Levon Strong (defendant) was arrested while driving a stolen pickup truck. He was convicted of unlawfully taking or driving a vehicle, and of receiving stolen property. In this appeal, he contends that: 1. Defendant’s conviction of unlawful taking or driving under Vehicle Code section 10851 (section 10851) was not supported by substantial evidence, in that: a. Th...
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Opinion Plaintiffs Tricor California, Inc., Tricor America, Inc., and Tricor International (collectively, Tricor) appeal from the judgment dismissing their case against their workers’ compensation insurer, defendant State Compensation Insurance Fund (SCIF.) Tricor alleged SCIF engaged in bad faith claims handling resulting in Tricor’s paying unjustified higher premiums and wrongly being denied ...
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Opinion Before trial appellant admitted two alleged felony convictions—a 1991 robbery conviction in Los Angeles County and a 1988 receiving stolen property conviction in Ohio. After trial, a jury convicted appellant of robbery (Pen. Code,1 § 211), and he was sentenced to an 11-year state prison term. On appeal, appellant contends the trial court erred by conferring with the jury in the absence of ...
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Opinion In this matter we are asked to join those unfortunate few of our colleagues who have been compelled to parse a statute which the mildest court has called “complicated” and the most forthright has accurately described as a “mass of cumbersome phraseology”—section 394 of the Code of Civil Procedure. 1 (Cf. Colusa Air Pollution Control Dist. v. Superior Co...
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Opinion In this proceeding we are asked to determine whether Code of Civil Procedure 1 section 425.13, which governs inclusion of a punitive damage claim in an action for professional negligence against a health care provider, applies. The underlying action was brought by Jenny S. Williams, a phlebotomist, allegedly injured while drawing blood from a violent patient at the San ...
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Opinion Defendant was convicted of six counts of lewd conduct on a child (Pen. Code, § 288, subd. (a)), and an allegation that he had committed a prior serious felony (Pen. Code, § 667, subd. (a)) was found true. He was committed to state prison for 23 years. On appeal, he contends that (1) the trial court prejudicially erred in excluding testimony of a psychotherapist that the victim was lying...
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Opinion Following trial to the court, the court reappointed John Crane, the Director of the Nevada County Department of Social Services, as conservator of the person and estate of James M. under the Lanterman-Petris-Short Act. (Welf. & Inst. Code, § 5350 et seq.; further statutory references are to the Welfare and Institutions Code unless otherwise indicated.) The court found the conserva...
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*222 Opinion Appellant, Jerry Land, was convicted by a jury of numerous criminal offenses committed during a one-night crime spree. He appeals his conviction, contending: (1) insufficient evidence supports the finding he aided and abetted the robbery, assault with a firearm and attempted murder of Gabriel Sandoval; (2) insufficient evidence supports the conviction for receiving s...
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Opinion I. Introduction This is an appeal from a judgment in a consolidated proceeding involving the estate of Kathryne J. Auen (Auen) who left most of her substantial estate to her attorney, Patricia A. Carson, also known as Patricia C. Major (Carson), and to Carson’s family. The primary ruling at issue in this appeal is the trial court’s finding that Carson exerted undue influence ...
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Opinion Edward Charles Sykes, accused of burglarizing a music store and robbing a security guard, seeks dismissal of the robbery charge and other allegations. “Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (Pen. Code, *481 § 211.) 1 The issue we address ...
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Opinion Appellant, Enrique Z., a minor, was adjudged a ward of the court in June 1992 after he admitted an allegation contained in a petition filed pursuant to Welfare and Institutions Code section 602 that he committed grand theft, in violation of Penal Code section 487. Appellant was continued as a ward of the court in October 1992 after admitting allegations, contained in a supplementa...
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Opinion This writ proceeding is ancillary to a combined action and proceeding pending in respondent Sutter County Superior Court (the Sutter County action). Petitioners are plaintiffs in the Sutter County action and the real parties in interest are defendants. 1 This writ application was filed after respondent superior court denied plaintiffs’ motion to change venue. Plain...
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Opinion Baker Construction Company (Baker) sued real party in interest Butte Valley Unified School District (District) in superior court in Siskiyou County, where the District is situated, claiming balances due on a construction project completed for the District. The District filed a cross-complaint against Baker in the same court for breach of contract and fraud based on alleged constru...
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Opinion On the evening of August 21, 1993, Clarence Johnson (appellant) drove his car under the influence of alcohol. At one point that evening, he drove over the center line on the Silverado Trail in Calistoga (Napa County) and struck a car driven by Walter Dominguez, killing Dominguez. Appellant was convicted by a jury of the second degree murder of Dominguez. He was sentenced to a term of 15...
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Opinion Appellants spent 15 years attempting to develop a parcel of real property in the City of Thousand Oaks (City). After many denials of their applications and modification of the plans, the planning commission finally approved the proposed subdivision map and development applications with the imposition of approximately 500 conditions. The city council (Council) appealed the decision to it...
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Opinion Defendants appeal from an order of the trial court granting plaintiff’s motion for attorney fees following voluntary dismissal of the underlying action. 1 We shall conclude the cost of litigation was not out of proportion to plaintiffs individual stake in the outcome, and therefore plaintiff was not functioning as a private attorney general. (See Code Civ. Proc., § 1021...
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Opinion Plaintiff and appellant Harnethia Mansell (Mansell), in propria persona, appeals a judgment denying her petition for writ of mandamus (Code Civ. Proc., § 1094.5) against defendant and respondent Board of Administration of the Public Employees’ Retirement System (PERS) (hereafter referred to as the Board). The issue is not Mansell’s basic entitlement to retirement benefits but only whe...
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*532 Opinion Bertrand E. Albert (Albert) appeals judgment entered against him in his action against Southern Pacific Transportation Company (SP or respondent) after the court granted respondent’s motion for summary judgment. (Code Civ. Proc., § 437c, subd. (c).) While working for SP on March 28, 1991, Albert, then 55 years old, suffered a heart attack. He had never experienc...
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Opinion A city sues various defendants for damages stemming from installation of asbestos in its buildings. The statute of limitations for injury to city’s real property is three years. (Code Civ. Proc., § 338, subd. (b).) The statute of limitations begins to run when city suffers an appreciable and actual harm. Here we hold, among other things, appreciable harm is not limited to the...
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Opinion Defendant was convicted by a jury of murder of the second degree and found to have used a deadly weapon in the commission of the offense. The trial court struck the enhancement and imposed the term prescribed by law. Defendant’s salient contention on appeal is that the trial court prejudicially erred in giving an instruction which implied that voluntary intoxication has no bearing on the ...
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Opinion This case involves an interpretation of section 5402 of the Labor Code. Section 5401 of the Labor Code provides that an injured *1427 employee who seeks workers’ compensation benefits shall file with the employer a completed claim form advising the employer of the employee’s name and address, Social Security number, time of the injury and address where the injury occurred, the nature ...
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Opinion This case presents an interesting twist on the old adage, “three’s a crowd.” Orange Container, Inc. (Orange Container), a close corporation in which the Schnabels own 30 percent of the stock, has become *760 a partisan in the war between them. The corporation has taken sides, and has done so in an egregious manner, implicating every single ground supporting...
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Opinion Introduction This appeal arises from the denial of a petition to compel arbitration. The petition raised the question whether a collective bargaining agreement excluded from arbitration a managerial decision to lay off an employee because of lack of funding or lack of work. In answering this question, the trial court properly made factual findings in ruling on arbitrability. The contract,...
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Opinion Terry L. Schnabel appeals pretrial attorney fees and support orders payable to Marilyn J. Schnabel. I If the names of the parties sound familiar, there is good reason. We have written several opinions and the Supreme Court has authored one—Schnabel v. Superior Court (1993) 5 Cal.4th 704 [21 Cal.Rptr.2d 200, 854 P.2d 1117], Suffice it to say, this dissolution has gone on for a long time.1 ...
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*681 Opinion Once again we return to the dispute between Bob Baker, a local automobile dealer, and Chrysler Corporation. Our review of our own records discloses that no less than 14 appeals and writ petitions have been filed in this court with respect to Baker’s attempt to sell both Ford and Chrysler products from the same location and Chrysler’s attempt to open a competing deale...
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Opinion In this petition for writ of mandate we are asked to interpret recently enacted legislation (Code Civ. Proc., § 425.16) designed to curtail a growing number of SLAPP (Strategic Lawsuits Against Public Participation) suits. 1 *737 Factual and Procedural Background At the heart of this controversy is a 22-acre portion of the California State University...
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Opinion Chad S., a minor, was adjudged a ward of the court pursuant to Welfare and Institutions Code section 602. 1 A supplemental petition was filed (§§ 602 and 777). At the dispositional hearing, the court committed Chad to the California Youth Authority (CYA); the court granted a stay of the CYA commitment. Several months later, a further petition was filed. At this dispositional hearing, ...
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Opinion Petitioners Southern California Rapid Transit District (District), Ernesto Fuentes (Fuentes) and Nick Patsaouras (Patsaouras) (collectively, defendants) 1 seek a writ of mandate from this court compelling the trial court to grant their summary judgment motion on the complaint of the real parties in interest, Allen Laster (Laster) and Richard Yeats (Yeats) (collectively,...
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*663 Opinion I Statement of the Case Defendant Alejandro Garibay Lara appeals from a judgment entered after a jury convicted him of battery on a peace officer with a deadly weapon (Pen. Code, §§ 242, 243, subd. (c), 12022, subd. (b)), battery against a different peace officer, resisting arrest with a weapon (Pen. Code, § 148, subd. (b)), assault on a peace officer w...
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Opinion Factual and Procedural Background Real parties in interest James and Alice Porsche (the Porsches) filed a complaint in the municipal court alleging one cause of action for “fraud and deceit” against appellant Marvin D. Doyle, a licensed real estate broker, arising out of a real estate transaction. The Porsches prayed for damages in the amount of $15,000. The case went to judi...
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Opinion Introduction This case arises from the failure of the American Bankers Insurance Company of Florida (American Bankers) to pay accident policy benefits after an insured, Phyllis Olson, drowned in a hot tub. Prior to her death, the insured had ingested a quantity of both alcohol and Valium. American Bankers refused payment based upon a policy exclusion for loss caused wholly or...
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Opinion Petitioners (defendants below and their attorney) seek a writ to vacate an order sanctioning them for failing to personally attend a mediation session and requiring them to participate in further mediation. Plaintiffs, real parties in interest, respond by urging us to rule that once an attorney orally agrees to mediate a dispute neither that attorney nor the client ...
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Opinion In this appeal we address questions related to the creation and use of personal sureties to stay execution of judgment. We conclude the 1982 enactment of a comprehensive Bond and Undertaking Law (Code Civ. Proc., § 995.010 et seq.) substantially changed the requirements for personal sureties contained in former Code of Civil Procedure section 1057. Plaintiff, Hossam Buzgheia, appeals ...
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Opinion Christine Mitchell appeals her conviction for possessing over $100,000 obtained from drug sales and conspiracy to commit that crime, contending: (1) Health and Safety Code section 11370.6 is unconstitutional; (2) the trial court erred by failing to grant her motion to dismiss at the end of the prosecution’s case; (3) section 11370.6 and CALJIC No. 12.37 unconstitutionally affect t...
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Opinion Appellant, Attorney Jonathan B. Cole, appeals from an order requiring him to pay sanctions to the trial court for bad faith actions, pursuant to Code of Civil Procedure section 128.5. 1 Although appellant raises a number of contentions on appeal, we need resolve only one. We conclude section 128.5 sanctions may not be ordered payable to the trial court. We reverse. ...
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Opinion Defendant appeals from a judgment following conviction by jury of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (b)) and personal use of a firearm (Pen. Code, §§ 1203.06, subd. (a)(1), 12022.5, subd. (a).) 1 Defendant alleges the court’s instruction that the word “firearm” includes “handgun” violated due process by removing a necessary element of the use clause from the jury’...
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30 Cal.App.4th 775 (1994) 37 Cal. Rptr.2d 59 THE PEOPLE, Plaintiff and Respondent, v. THOMAS C. CARTER, Defendant and Appellant. Docket No. G014447. Court of Appeals of California, Fourth District, Division Three. November 30, 1994. *777 COUNSEL Corinne S. Shulman, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief ...
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30 Cal.App.4th 874 (1994) 35 Cal. Rptr.2d 905 LARRY IGOR BORDEN, Plaintiff and Respondent, v. DIVISION OF MEDICAL QUALITY, Defendant and Appellant. Docket No. D018801. Court of Appeals of California, Fourth District, Division One. December 2, 1994. *876 COUNSEL Daniel E. Lungren, Attorney General, Alvin J. Korobkin, Assistant Attorney General, Billie Jan Goldstein and Anne L. Mendoza, Deputy Atto...
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Opinion Defendant was convicted of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)), robbery (Pen. Code, § 211) and escape (Pen. Code, § 4532, subd. (b)), and he was found to have personally used a firearm in the commission of the kidnapping and robbery (Pen. Code, § 12022.5) and *868 to have suffered a prior serious felony conviction (Pen. Code, § 667) for which he had served a pri...
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*911 Opinion The critical question presented on this appeal is whether the defendant city could have reduced the risk of injury to the plaintiffs by altering the physical characteristics of a street the city owns. Because the plaintiffs have not suggested any such alteration, we affirm the summary judgment entered in favor of the city. Factual Background The circumstanc...
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Opinion This case illustrates that there are limits to the “good faith exception” to the exclusionary rule announced by the United States Supreme Court in United States v. Leon (1984) 468 U.S. 897 [82 L.Ed.2d 677, 104 S.Ct. 3405]). Paraphrasing Mr. Justice White, the name “Leon” is not a mere talisman in whose presence the exclusionary rule inexorably fades away and ...
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Opinion On June 22, 1990, Jesus Palafox 1 Huerto pleaded guilty to possession of cocaine for sale and was placed on probation. On October 10, under the name of Miguel Morales Perez, he was found to have violated that probation by failing to report. On September 30, 1993, he was found again to have violated probation, this time by selling cocaine. The case reaches us because Per...
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*929Opinion The trial court terminated the parental rights of appellant Candy M. and freed minor siblings Barbara and Shannon P. for adoption. Candy appeals,1 contending that her due process rights were violated when the trial court (1) terminated reunification services on the same day that jurisdiction was found on the subsequent petitions; (2) based its decision to terminate reunification servi...
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Opinion Plaintiff, James Dennis Ellenberger, D.D.S., appeals from a judgment entered against him and in favor of defendant Jennie Espinosa, (hereinafter defendant) based on the trial court’s action of sustaining her demurrer to plaintiffs second amended complaint without leave to amend. *947 Procedural Background On April 10, 1992, plaintiff filed his second amended complaint against defe...
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Opinion Petitioner Donald Jackson seeks a writ to require respondent court to overrule a demurrer to a cause of action under the Unruh Civil Rights Act (Civ. Code, § 51). 1 Procedural History - Facts On April 4, 1994, petitioner filed a complaint against Home Savings of America and Maria G. Delucchi-Kahale, an employee of Home Savings. The complaint alleges in relevant part as follows: Pe...
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Opinion Appellant Jimmie Garrett was convicted by a jury of one count of threatening another person with immediate great bodily injury (Pen. Code, § 422 1 ). The jury was unable to reach a verdict on the charge that appellant was an ex-felon in possession of a firearm, and a mistrial was granted as to that count. Additionally, appellant admitted a prior felony conviction for which he served a...
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Opinion Kelli Jeanette Head appeals after pleading guilty to felony and misdemeanor possession of a narcotic (Health & Saf. Code, § 11350, subds. (a) and (b)). Granted probation with imposition of sentence suspended, she challenges denials of her motions to suppress evidence seized under warrant on grounds that a delay in filing a return to the warrant violated her Fourth Amendment rights. We uph...
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Opinion This is an action for declaratory relief brought by an insured, American Cyanamid Company, to determine the duty of its various insurers to defend and indemnify American Cyanamid in an underlying lawsuit for anticompetitive conduct. The action was brought against three primary insurers and numerous excess insurers, all of whose policies were in effect from 1966 to 1986. The t...
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Opinion Here we face two primary questions: (1) the remedy available to subsequent purchasers when a prior land sale transaction to which they were not parties violates the Subdivided Lands Act (Bus. & Prod. Code, § 11000 et seq.), and (2) the subsequent purchasers’ rights pursuant to a release clause contained in a blanket deed of trust which the , original parties did not perform. ...
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Opinion Appellants ask that the state pay for driver training for public high school students. They claim moneys from the Drivers Training Penalty Assessment Fund (DTPAF) should be used for this purpose. (Pen. Code, § 1464; Ed. Code, § 41304.) After the trial court denied their petition for a writ of mandamus and preliminary injunction, appellants filed this appeal. 1 On appe...
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Opinion It has been said, and it is doubtless true, that the “. . . courtroom is a temple of justice.” (Featherstone v. United States (5th Cir. 1974) 491 F.2d 96, 97, fn. 1.) A prosecutor may not use the courtroom as a place to intentionally and surreptitiously listen to, i.e., eavesdrop upon, a defendant’s conversation with his attorney. Indeed, eavesdropping on an ...
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Opinion William Rosso appeals from the judgment entered following denial of his suppression motion (Pen. Code, § 1538.5) and *1003 his negotiated guilty plea to possessing more than 10 kilograms of cocaine for sale. (Health & Saf. Code, §§ 11351, 11370.4, subd. (a)(3).) In the published portion of this opinion, we reject the People’s argument that Rosso waived his appellate r...
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Opinion Ricky Sandoval (Sandoval) was convicted by a jury of 11 armed robberies, 1 attempted robbery, and attempted murder, with Sandoval’s having personally used a firearm on all counts and having inflicted great bodily injury on the victim of the attempted robbery and murder also found true by the jury. In separate proceedings, the court found true allegations *1293 Sandoval had suffered tw...
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Opinion The County of San Diego (County) appeals an order of the superior court in its action for reimbursement of aid to families with dependent children (AFDC) moneys paid on behalf of the minor child of respondent Guy C. (Guy) for out-of-home placements pursuant to a judgment of dependency. (Welf. & Inst. Code, §§ 300, 11350.) In making its order for child support, the trial court revi...
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Opinion Defendant David Scott Curtis (defendant) had an affair with a married woman, Abigail Camacho Medina (Abby). 1 This brought him into conflict—sometimes violent conflict—with Abby’s husband, brother, and other members of her family. Defendant’s relationship with Abby herself was not free from conflict. They broke up and got back together many times. Abby gave birth to a child, Nicole....
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Opinion Plaintiffs appeal from a summary judgment entered against them in their action for damages for personal injuries and loss of consortium. We reverse. In doing so, we hold that (1) the consumption of alcoholic beverages is not an activity which is within the range of activities involved in the sport of downhill snow skiing; (2) to the extent the consumption of alcohol increases the ...
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Opinion Plaintiffs Fireman’s Fund Insurance Company, General Star Indemnity Company, and North Star Reinsurance Corporation (together Insurers) appeal a judgment of dismissal entered after the superior court sustained without leave to amend the demurrer of defendants McDonald, Hecht & Solberg et al. (together Law Firm) 1 to Insurers’ cause of action in subrogation for legal mal...
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Opinion Plaintiff Lincoln National Life Insurance Company (LNL) filed suit against defendant State Board of Equalization of the State of California (Board) seeking a refund of gross premium taxes assessed and collected pursuant to article XIII, section 28, subdivision (c) of the California Constitution. Southern California Gas Company (SCG) was an intervener in the suit. The trial court found L...
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Opinion Coastal Construction Company (hereafter seller) appeals from a declaratory relief judgment enjoining it from foreclosing on a purchase *1714 money deed of trust. The trial court ruled that Probate Code section 9391 barred enforcement of the trust deed because seller failed to file a creditor’s claim with the debtor’s estate waiving recourse against other property in the estate. 1 Se...
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Opinion During a drought condition, a city supplies its citizens with water it draws from the ground. The groundwater pumping causes subsidence resulting in damage to buildings. Here we hold the city is liable in inverse condemnation to the owner of the buildings. We affirm the judgment of the trial court that appellant, the City of San Luis Obispo (the City), is liable in inver...
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Opinion An attorney negligently fails to diligently prosecute an action. Code of Civil Procedure section 473 1 provides that upon a proper motion the court shall vacate a default judgment or dismissal entered because of an attorney’s mistake, inadvertence, surprise, or neglect. Does that mean that a trial court may not dismiss an action for failure of the attorney to diligently...
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Opinion A jury convicted defendant and appellant Balwinder Singh Tung of four felonies, including one count of attempted murder, and one misdemeanor. The jury also found various enhancement allegations were true. 1 Appellant was sentenced to a prison term of life plus four years. 2 Appellant raises three issues here. First, he claims his conviction for attempted murder must be reversed be...
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Opinion An attorney wishes to file a complaint in the Ventura Municipal Court. The clerk will not accept the complaint for filing unless the attorney first submits a completed “case information sheet” required by a local court rule. We are called upon to answer a question, universal to the legal profession, “Can they do that?” Here we offer our answer to this weighty inquiry — “Sure.” The...
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Opinion Winfred Bell appeals from the order extending his commitment to the Department of Mental Health after a jury found that he continued to be a mentally disordered offender (MDO). (Pen. Code, §§ 2962, 2966, subd. (c).) He contends: “I. The trial court erred in failing to correctly instruct on the time parameter for proof of the MDO criteria and its error was prejudicial. II. The trial cour...
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Opinion Gregory Williams appeals his conviction by jury verdict of first degree murder with special circumstances of robbery (Pen. Code, *1760 §§ 187, 190.2, subd. (a)(17)(i)) 1 and sale of cocaine base. (Health & Saf. Code, § 11352.) Appellant asserts instructional and sentencing error, and the erroneous denial of a new trial on the basis of newly discovered evide...
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Opinion Appellant Gloria B., mother of the minor children and objector in the court below, appeals from the trial court order granting the petition filed by petitioners Jose and Jennie R. (respondents herein) seeking to be appointed guardians of the minor children, Diana (also referred to in the record and in this opinion as Deana) and Brenda, born in 1980 and 1982, respectively. The sole...
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Opinion In a joint trial with codefendant Mark Regó, a jury convicted defendant of second degree burglary (Pen. Code, §§ 459, 460) and failure to appear (Pen. Code, § 1320, subd. (b)). Defendant was sentenced to state prison for the two-year middle term for burglary, plus eight months consecutive for failure to appear. On appeal, defendant contends that an instruction to the jury in terms of ...
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Opinion I. Introduction In this case we hold that a hearing on the necessity of a “support person” (Pen. Code, § 868.5) for a six-year-old victim, while testifying in a prosecution for child molestation, was waived by failure to request it. II. Background Lord molested six-year-old Myisha at a motel in Hayward on December 20,1992. Myisha was staying in room 154 with her mother, Marla, and...
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Opinion Former section 621 of the Evidence Code 1 provided that “the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage” absent rebuttal under certain specified circumstances, inapplicable here, within two years of the child’s birth. The sole issue before us is whether the trial court erred in applying this presu...
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Opinion Appellant Suzanne Carlton, successor in interest to plaintiff Mark A. Carlton, deceased (Carlton), appeals a judgment following a grant of summary judgment in favor of defendant and respondent St. Paul Mercury Insurance Company (St. Paul or the insurer) in a bad faith action alleging unreasonable delay in paying a claim. The essential issue presented is whether the trial cour...
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Opinion Appellant Interinsurance Exchange of the Automobile Club of Southern California filed a complaint for subrogation recovery against Matthew Joseph Collins. 1 Appellant submitted a request to enter default, which was rejected by the clerk of the court. The clerk informed counsel for appellant that the default could not be entered because the declaration of Mr. Collins’s n...
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Opinion After Brenda B.’s parental rights to her daughter Krystle D. were terminated, she and her former husband, Krystle’s former *1786stepfather, John U., separately appeal. Brenda asserts that the proceedings were defective for lack of proper notice to her tribe under the Indian Child Welfare Act, 25 United States Code section 1901 et seq. (hereafter, the Act). John contends that the court err...
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*1012 Opinion We consider the statute of limitations in an action alleging diesel fuel pollution caused by defects in the installation of an underground storage tank. The issue is whether a property owner who might otherwise be entitled to indemnification for abating a “continuing nuisance” is barred by the statute of limitations applicable to latent construction defects. Code of...
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Opinion Introduction These consolidated appeals contest rulings made by the trial court at a hearing to vacate two bail forfeitures. We first reject the contention made by *16 the two sureties (National and Ranger) that the trial court lacked jurisdiction to order the bail forfeitures in the first instance. We affirm the trial court’s ruling denying National’s motion to ...
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Opinion In this appeal we are asked to decide whether the City of Fresno’s municipal ordinance which restricts the door-to-door distribution of certain categories of written materials is constitutional. We are concerned with two parts of the ordinance. First, the ordinance prohibits-door-to-door distribution of advertisements and unauthorized newspapers when the owner or occupant of a residence...
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Opinion The City and County of San Francisco (City) seeks a writ of mandate to compel respondent superior court to grant its motion for summary judgment. City is defendant in a personal injury action brought by real party in interest Bridget Colbert, who was stabbed while riding on a City-operated bus and now sues City for failing to prevent the incident. City contends it is not liable to real ...
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Opinion In this insurance bad faith suit, defendant Allstate Insurance Company appeals the judgment entered following a jury’s verdict *64 in favor of plaintiff Gary Lehto. Prior to the instant action, Allstate’s insureds, Israel and Raul Carbajal, entered into a stipulated judgment in the amount of $2.6 million in favor of plaintiff, in exchange for a covenant not to execute...
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Opinion August G. Smith (Smith) worked as a pipe fitter for 30 years, his work often exposing him to asbestos dust. Smith retired with good health in 1971 at the age of 67. Twenty years later, in 1991, Smith became ill and was diagnosed with the respiratory afflictions of asbestosis and asbestos-related pleural disease. Smith and his wife, Marie, brought this action for damages again...
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Opinion Eastern Municipal Water District (District), plaintiff below, appeals from a trial court judgment entered after the court refused to enjoin enforcement of a local ordinance enacted by defendant City of Moreno Valley (City) which placed on the District the obligation to collect from its customers and remit to the City a 6 percent utility user’s tax on the services provided by the Distric...
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*171 Opinion This case tenders the question whether a county is precluded from the regulation of groundwater because state law has preempted the field. We will conclude that state law, while regulating aspects of groundwater, does not wholly preclude county regulation. The defendant County of Tehama (Tehama) appeals from a judgment declaring invalid an ordinance by which it ...
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*135 Opinion Introduction Plaintiff and appellant Katheryn Kidd (Kidd) appeals from the order of dismissal of her action for legal malpractice against defendants and respondents Steven Kopald (Kopald) and the law firm Kopald & Mark (collectively Kopald) for failure to bring the case to trial within three years. Kidd contends reversal is in order because the trial court ...
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Opinion Eric John Kongs was charged with the crimes of annoying or molesting a minor, using a minor to pose for visual depictions of sexual conduct, and possessing child pornography. After Kongs was held to answer by a magistrate, the superior court set aside the information. We find that there was sufficient evidence to support the magistrate’s ruling, and reverse the order setting aside the...
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Opinion I. Introduction Applying the governing rule in In re Estrada (1965) 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948], we hold in the published portion of this opinion that defendant Myron Delin Todd is entitled to the benefit of a 1992 amendment to the drug trafficking near school yards enhancement set forth in Health and Safety Code section 11353.6, subdivision (b). 1 The amelior...
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Opinion The People appeal the Penal Code section 995 dismissal of an information filed against defendants and respondents Jason Sebastian von Marschner, John Mark Eltchi and Steven Eid (collectively, defendants) alleging various sexual offenses and attempted offenses perpetrated upon an unconscious victim. 1 Specifically, the information alleged Eltchi had committed two count...
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*108 Opinion Fanners Insurance Group and its member company Truck Insurance Exchange (collectively Truck) appeal from a judgment on a jury verdict against Truck and in favor of Larkspur Isle Condominium Owners’ Association, Inc. (LICOA) in an action for breach of a property insurance policy. Truck contends it had no liability under the policy as a matter of law, because the loss ...
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Opinion Christian S. Tuffli appeals the judgment of the superior court denying his petition for writ of mandate which sought an order compelling the San Diego Unified School District (the District) to reinstate him with backpay to his former position as a teacher of handicapped pupils. Tuffli contends that his summary termination by the District pursuant to Education Code section 44836, 1 aft...
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*199 Opinion Pedro Renteria Castaneda appeals from the judgment imprisoning him for 44 years for 29 counts of child molestation involving his teenaged stepdaughter and his 7-year-old daughter, along with 2 separate enhancements due to his position of trust and substantial sexual conduct he committed. The actual charges stem from his act of raping his stepdaughter for the first time in 1984 wh...
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Opinion Petitioner Jeffrey Smith is a member of the Contra Costa County Board of Supervisors. As a member of the board, Smith cast a vote that the county appeal an order entered in federal litigation involving the county. Thereafter, Kevin Degnan, real party in interest, sought injunctive relief in respondent court to set aside Smith’s vote on the ground that Smith’s participation in the decisi...
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*224Opinion Cody W., bom with heroin in his system, was removed from Jill V.’s custody in December 1991, when he was four months old. Jill, a long-time abuser of drugs, was incarcerated in various facilities across the state for much of the next two years. She was in custody, but present in court, when her parental rights were terminated at the selection and implementation hearing. Most of the is...
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Opinion J.G. Durand International (Durand) appeals from a preliminary injunction order which prevents it from selling certain patterns of leaded crystal stemware in California unless it provides consumers with a notice which warns about exposure to lead. Durand contends the injunction must be set aside because the trial court (1) failed to order the plaintiff to post an injunction bond, a...
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Opinion I. Introduction This writ proceeding is taken from an order denying a motion for summary judgment and an order denying a motion for expungement of lis *1855 pendens. The action arose out of the purchase and sale of a residence alleged to have involved a transfer in fraud of creditors. 1 The petition for a peremptory writ is granted. II. ...
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Opinion The juvenile court sustained a petition filed pursuant to Welfare and Institutions Code1 section 300 and declared minors Katrina W. and Ryan W. (collectively the minors) to be dependents of the court. Teah W. (mother) and Timothy W. (father) appeal from an order entered following the ensuing disposition hearing. We affirm. Background Viewed in the light most favorable to the order under re...
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Opinion Introduction Appellant Pamela Castro appeals from judgments of the San Francisco Superior Court dismissing her action against respondents. She contends the trial court erred in sustaining respondent Paul Higaki’s 1 demurrer on the ground the action was precluded by res judicata. She claims that the issue determined in the previous action is not the same as the issu...
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Opinion Reagen’s Vacuum Truck Service, Inc., Bennie Reagen and Dennis Reynolds (Reagen’s) appeal from a judgment following entry of summary judgment in favor of Beaver Insurance Company (Beaver). Reagen’s, in its first amended complaint, had alleged causes of action against Beaver for breach of duty of good faith and fair dealing, breach of *381contract, breach of fiduciary duties, fraud, and neg...
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Opinion This appeal from an order terminating parental rights of a prison inmate presents a troubling record of intervention by the Department of Social Services of Humboldt County (hereafter DSS). The minor, Monica C., is the sixth child of Pamela C. (appellant), who has an extensive criminal record dating from her addiction to heroin in the late 1970’s and a history of losing custody of previou...
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Opinion Claudell Moore appeals from a judgment of conviction for first degree burglary. He contends the jury was improperly instructed on the “entry” element of the offense, and insufficient evidence supported its implied finding of entry. An information charged Moore with residential burglary (Pen. Code, § 459 1 ) and a prior serious felony conviction (§ 667 subd. (a)). The information was...
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Opinion In this federal civil rights action against employees of the state Department of Social Services (State DSS or Department), the County of San Mateo (County) and the County Department of Social Services (County DSS), arising out of the suspension of appellants’ foster home license, the trial court sustained a demurrer without leave to amend on the ground that the defendants were ab...
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Opinion We are required by this case to decide whether public school districts sued in actions seeking declaratory and injunctive relief under the federal Voting Rights Act of 1965 (42 U.S.C. § 1973 et seq.) are entitled to a defense provided by their insurance carrier pursuant to liability policies covering “all sums which the Insured shall become obligated to pay as damages ....
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31 Cal.App.4th 595 (1994) 37 Cal. Rptr.2d 117 THE PEOPLE, Plaintiff and Respondent, v. EDWARD GALOIA, Defendant and Appellant. Docket No. G013678. Court of Appeals of California, Fourth District, Division Three. December 16, 1994. *596 COUNSEL Brian A. Wright, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assis...
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Opinion Defendant James Marshall Cowan was charged by information with possession of methamphetamine for sale (Health & Saf. Code, § 11378). After his motion to suppress evidence (Pen. Code, § 1538.5) was denied, defendant pleaded no contest to the charge. The court suspended imposition of sentence and placed defendant on probation for three years upon condition, inter alia, that he serve...
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*1366 Opinion Cesar Javier Olguin and Francisco Calderon Mora were convicted of second degree murder for the killing of John Ramirez. In addition, firearm and criminal street gang enhancements were found to be true. Both defendants appealed on several grounds, 1 and we consolidated the cases for review. I In March 1992, Olguin lived on West Elder in Santa Ana...
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Opinion Appellants appeal from the order of the trial court imposing upon them Code of Civil Procedure section 128.51 sanctions in the amount of $65,000. Background Appellants in this appeal are Bruce M. Friedman and the Law Offices of Bruce M. Friedman, a Professional Corporation (hereafter referred to collectively as appellant). Appellant was retained by three plaintiffs to represent them in the...
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*Supp. 3Opinion We hold the “speed trap laws” and those rules governing the admissibility of a vehicle’s speed ascertained by radar are not applicable in those cases where a violation of Vehicle Code section 22350 occurs in a marked and posted school zone. (Veh. Code, § 22352, subd. (b)(2).) Facts At 8:05 a.m. on Friday, September 10, 1993, Newport Beach Motor Officer J. Joyce had taken a positio...
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Opinion We hold that whenever radar is used in conjunction with the enforcement of a posted speed limit on a nonlocal roadway,1 the speed trap laws are invoked, giving rise to the need for a current engineering and traffic survey that justifies the posted speed. Absent the survey, we conclude that the officer is incompetent to testify as to the speed of the defendant’s vehicle, even if his testim...
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*Supp. 13Opinion This cause having been submitted for decision, and fully considered, judgment is ordered as follows: The judgment is affirmed. Appellant challenges his conviction for violating Los Angeles Administrative Code1 section 8.78 (violating a curfew order).2 At arraignment, appellant pled not guilty and demurred to the complaint, contending, inter alia, that section 8.78 was unconstituti...
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