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All Reporters → cal-app-lexis → Volume 1995

Opinions in cal-app-lexis Volume 1995

Opinion Statement of the Case and Facts On March 26, 1992, the United Narcotics Reduction and Apprehension Program Task Force, assisted by the Bakersfield Police Department, detained claimant’s cousin and seized the 1986 Toyota pickup truck (Cal. license No. 3E39981) which he had been driving. Claimant’s cousin and the latter’s passenger were arrested for possession and sales of mari...
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Opinion Defendant Beverly Walton, as administrator for the estate of A. Bruce Walton II (Bruce Jr.), 1 appeals from a judgment awarding specific performance of an oral contract to make a will in consolidated actions brought by plaintiffs A. Bruce Walton III (Bruce III) and Richard L. Walton (Rick). Defendant contends the trial court erred in denying her a jury trial and in gran...
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Opinion Defendant and appellant Ronald J. Creath appeals from a judgment after a jury trial resulting in his conviction of grand theft by embezzlement and filing false income tax returns. While a union officer, defendant used a union-issued credit card and other union funds to pay his personal expenses amounting to more than $250,000. In the published portion of this opinion, we conclude ...
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Opinion Question Presented The proper standard of care for a person administering a diphtheria, pertussis and tetanus (DPT) vaccine to an infant is the sole legal question in this appeal. Trying the case without a jury, the court entered judgment in favor of Frederick Frye, M.D., in the medical malpractice action of Jaridijon Salasguevara, a minor by his guardian ad litem, 1 ...
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Opinion A dispute between the owners and the contractor over a remodeling contract was submitted to binding arbitration, resulting in an award of $30,713.35 to the contractor, Villinger/Nicholls Development Company (VNDC). The owners, Kenneth and Ann Meleyco, appeal from the judgment entered after the superior court confirmed the award. (Code of Civ. Proc., § 1286.) The Meleycos contend t...
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Opinion The People of the State of California seek a writ of prohibition, which we have deemed a petition for a writ of mandate, directing respondent Superior Court of the State of California, for the County of Los Angeles, (1) to set aside its order of May 6, 1994, by which it vacated a state prison sentence pronounced on June 4, 1991, and granted probation to real party in interest, Sara Mae ...
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*364 Opinion Dee Anna M. Brossoit, the mother of the two children who are the subjects of this proceeding, appeals from an order declining to exercise jurisdiction over her motion to modify child custody. She contends the trial court erred in leaving it to the courts of Tennessee, where her children now live with their paternal grandparents, to determine the merits of the custody...
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Opinion Appellant was convicted of the attempted first degree murder of Officer Epifiano Cardenas of the Fresno Police Department. (Pen. Code, §§ 664, 187.) The attempted murder qualified as first degree murder on the basis that appellant had attempted a “willful, deliberate, and premeditated” killing of Cardenas. (Pen. Code, §§664, 189.) 1 It was not disputed that appellant ha...
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*405 Opinion On February 2, 1993, cross-appellants and respondents the Los Angeles County Court Reporters Association and the Los Angeles County Employees Association, Local 660 (collectively the association), filed a petition for writ of mandate in the Los Angeles Superior Court naming appellant and cross-respondent the Los Angeles County Superior Court (the court) as defendant....
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Opinion This case is one of first impression concerning statutory preemption. With its passage of the Z’berg-Nejedly Forest Practice Act of *422 1973 (hereafter the FPA), 1 the Legislature established a comprehensive statutory scheme regulating the conduct of timber operations. At issue here is whether the FPA preempts a county’s attempt to control, by zoning ordinance, the location of ...
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Opinion Eloise Anderson, as the Director of the California Department of Social Services (Department), appeals from the superior court’s issuance of a writ of mandate directing the Department to reevaluate California’s “need standard” under the Aid to Families with Dependent Children (AFDC) *453program and to publish the results of the reevaluation. In issuing the writ, the court found that Calif...
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Dissenting. — It is comprehendible how the tragic but “freak” accident in this instance has led the majority to stretch to conclude as a matter of law that Government Code section 831.7 yields no liability *481immunity to the school district in this case. Most certainly, resultant quadriplegia and eventual death to this young high school gymnast would evoke sympathy in anyone but the completely in...
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Opinion Defendant, Tony Russell Walker, appeals from his conviction of first degree residential robbery and burglary, raising several *434 issues ranging from sufficiency of the evidence to instructional errors. For the reasons stated herein, we affirm. I Facts Prosecution Evidence: On September 7, 1992, at approximately 4:45 a.m., Officer Glenn Carr of the San Bernardino Police D...
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Opinion Reggie Robinson (appellant) was charged with and convicted (by jury) of arson. (Pen. Code, 1 § 451, subd. (b).) We reverse the judgment because the district attorney withheld exculpatory evidence (Brady v. Maryland (1963) 373 U.S. 83, 87 [10 L.Ed.2d 215, 218, 83 S.Ct. 1194]; § 1054.1, subd. (e)) and committed misconduct, and the trial court erroneously excluded defense evidence. ...
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Opinion Applying Stangvik, v. Shiley Inc. (1991) 54 Cal.3d 744 [1 Cal.Rptr.2d 556, 819 P.2d 14], the trial court dismissed the instant action on forum non conveniens grounds. We find no abuse of discretion and affirm the judgment of dismissal. Background Appellants (Frank Rinauro and his wife Jean) filed a tort complaint (negligence, strict liability, failu...
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Opinion I. Introduction Defendant, Union Bank, seeks a writ of mandate pursuant to Code of Civil Procedure section 437c, 1 subdivision (/), compelling the respondent court to enter a summary judgment on the first amended complaint against plaintiffs who are 11 individuals, a trust, and an individual retirement account. We conclude that: defendant could rely on plaintiffs’ ...
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*268 Opinion A jury convicted Gregory John Strunk of possessing a sharp instrument while lawfully confined in a state prison. (Pen. Code, 1 § 4502.) In a bifurcated court proceeding, Strunk also admitted the truth of a prior prison term enhancement allegation. (§ 667.5, subd. (b).) The trial court sentenced him to a total five-year consecutive term. Strunk appeals...
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Opinion Plaintiff McMillin-BCED/Miramar Ranch North (McMillin-BCED), a California general partnership, appeals the judgment of the superior court in favor of the County of San Diego (the County), defendant and respondent, in McMillin-BCED’s action for refund of property taxes. *550 (Rev. & Tax. Code, 1 §§51, 5097, 5149.) Pursuant to California Constitution, article...
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Opinion Plaintiffs Gerald Geernaert and his wife Pamela Geernaert brought this action for damages against two defendants who formerly owned their residence, alleging fraudulent misrepresentation and concealment regarding significant structural and foundation problems with the property. The trial court dismissed the case after determining, on a demurrer, that defendants owed no duty to pla...
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Opinion I. Introduction Appellant appeals from his conviction for first degree burglary in connection with an incident occurring at a ranch in Sonoma County. He contends, on two separate but interrelated bases, that his conviction on this count cannot stand because (a) the crime of first degree burglary is contingent upon the building in question being inhabited by a person with a “possessory...
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*688 Opinion A jury convicted the defendant of one count of arson of an inhabited structure (Pen. Code, § 451, subd. (b)) 1 and one count of presentation of a fraudulent insurance claim (former Ins. Code, § 556, subd. (a)(1) [Stats. 1988, ch. 1609, § 1, p. 5864].) The court suspended the imposition of sentence and placed the defendant on probation for five years on con...
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Opinion Plaintiffs filed their complaint and petition for mandamus and injunctive relief seeking to compel defendant board of trustees of the California State University to follow Education Code sections 68050 and 68062, subdivision (h). The indicated Education Code sections relate to undocumented aliens establishing residency for purposes of determining applicability of resident or nonresident...
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Opinion An attorney fee clause in an agreement provides that in any action arising out of the agreement, the prevailing party shall be entitled to reasonable attorney fees. Plaintiff brings an action for breach of contract and for tort violations arising out of the contract. A jury finds for defendant on the breach of contract action, but finds for the plaintiff on the tort cause of action and aw...
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Opinion — Appellant Marshall Edward Mikels was convicted on numerous charges of grand theft and the making of false financial statements; appellant Michael Gregory Counts was convicted on charges of receiving stolen property. All the charges against both appellants arose from multiple thefts of lumber from lumber companies. Appellants raise numerous contentions of error. We conclude ...
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Opinion At a jury trial defendant was convicted of being a felon in possession of a firearm (count one, Pen. Code, § 12021, subd. (a)); driving recklessly while fleeing from a police officer (count two, Veh. Code, § 2800.2); and auto theft with an armed enhancement (count three, Veh. Code, § 10851, subd. (a), Pen. Code, § 12022, subd. (a)(1)). At a bifurcated trial before the court, it was foun...
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Opinion — This is an appeal from the portion of a judgment which grants a peremptory writ of mandate commanding the Secretary of *750 State 1 to conduct primary elections to select nominees of the Green Party of California (Green Party) in accordance with two rules adopted by officials of the party in lieu of compliance with the procedures specified by the Elections Code. 2 One rule req...
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Opinion This appeal involves the construction and applicability of California Uniform Commercial Code section 4302 1 which requires a bank to give notice of dishonor or refusal to pay a check by midnight of the day following receipt of the check, otherwise known as the “midnight deadline” rule. Here, over $2 million in losses were sustained when two individuals, Tony Lam and Pe...
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Opinion In consolidated cases, the People appeal from the orders of the Santa Barbara Superior Court granting Efrain Avina Samano’s and Juan Jose Castro-Gaxiola’s petitions for writs of habeas corpus.1 They sought release from custody pursuant to Penal Code section 859b on their own recognizance after the preliminary hearing was continued.2 The People contend that the superior court erred in ruli...
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Opinion Petitioners KOVR-TV, Inc., and Mark Saxenmeyer, defendants in the underlying action, seek a writ of mandate directing respondent superior court to vacate its denial of their motion for summary judgment and to grant the motion. We issued an alternative writ and stayed proceedings in the superior court. After further review of the evidence offered in the summary judgment proceedings...
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Opinion Defendant and appellant Albert K. Johnson (appellant) was charged in an indictment with three counts of forcible oral copulation (Pen. Code, § 288a, subd. (c)), 1 three counts of forcible penetration by a foreign object (§ 289, subd. (a)), one count of rape (§ 261, subd. (a)(2)) and one count of second degree robbery (§§ 211, 212.5, subd. (b)). The indictment also alleg...
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31 Cal.App.4th 1001 (1995) 38 Cal. Rptr.2d 401 THE PEOPLE, Plaintiff and Respondent, v. PAUL GREEN, Defendant and Appellant. Docket No. A059099. Court of Appeals of California, First District, Division One. January 20, 1995. *1006 COUNSEL Michael Satris, under the appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assista...
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*1035 Opinion Prior to recent amendment, the State Lottery Act provided: “The right of any person to a prize shall not be assignable, except that payment of any prize may be paid . . . to a person designated pursuant to an appropriate judicial order. . . .” (Gov. Code, § 8880.32, subd. (g), as amended by Stats. 1992, ch. 500, § 3.) The sole issue presented in this appeal is wheth...
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Opinion This case again presents the question: when is a comprehensive release enforceable? The San Diego Hospice (Hospice) acquired land formerly owned by the County of San Diego (County), and later discovered the land was contaminated by hazardous materials. Hospice made a claim against County, which claim was settled. The settlement agreement and release contemplated that “[additional ...
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Opinion I. Introduction This is an appeal from a declaratory judgment entered in favor of the insurer, respondent Transcontinental Insurance Company (Transcontinental), and against the insured, appellant The Cooper Companies, Inc. The trial court held that two liability insurance policies issued to Cooper Laboratories (Cooper Labs), and its wholly owned subsidiary, CooperVision (late...
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Opinion The initial questions posed by this appeal 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), were answered by this court in our opinion filed July 19, 1994, in Building Industry Assn, (also ref...
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Opinion James R. Godwin appeals from judgment entered following a jury trial in which he was convicted of possession of a destructive device *1114or explosive with the intent to injure, intimidate, or terrify any person or with the intent to wrongfully injure or destroy any property (Pen. Code, § 12303.3). He contends the trial court committed prejudicial instructional error. Statement of Facts an...
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Opinion Adolfo J. Torrez appeals from a judgment of conviction of two counts of driving while under the influence of alcohol (Veh. Code, §23152, subds. (a), (b)), and one count of driving while his license was suspended for a prior conviction of driving under the influence (Veh. Code, § 14601.2, subd. (a)). The first two counts were felonies *1087because appellant had incurred three prior convicti...
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Opinion The day after 12-year-old Jennifer Lawson received a transfusion, her doctor discovered the blood was contaminated with HIV antibodies. Although the same doctor continued to treat Jennifer, he never told her or her parents about the tainted blood. Three years later, Jennifer started dating Daniel Reisner and they became intimate. Two years later, the doctor told Jennifer she had A...
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Opinion We are asked in this case to extend the “good faith” exception to the Fourth Amendment’s exclusionary rule to salvage a confession obtained in violation of the Fifth Amendment. We decline. Background James Powell was at Yvonne Lane’s apartment when Appellant Val Lamar Smith (who is deaf) and four other men (“Howard,” “Vincent” and two others who remained nameless) arrived. Smith and...
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Opinion Plaintiff Gould brought this action against his former employer and two management-level employees after he was terminated as a sales representative. The trial court sustained demurrers to each cause of action and dismissed the complaint. We have concluded some of Gould’s allegations state causes of action while some do not. Therefore we reverse the judgment of dismissal and reman...
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Opinion Petitioner (plaintiff) seeks a writ of mandate directing the respondent superior court to vacate its order sustaining without leave to amend the demurrer of real party in interest Dennis Montgomery (Montgomery) to the first cause of action of plaintiffs second amended complaint, and to enter an order overruling the demurrer. At issue is whether a supervisor can be held personally ...
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Opinion Introduction This writ proceeding, initiated by the People, was triggered by the trial court’s dismissal of a pending criminal prosecution for failure to bring the defendant to trial within the period mandated by Penal Code section 1382. This cause, therefore, requires us to determine the legality of the case management policy which led to the dismissal order. We conclude that the trial c...
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31 Cal.App.4th 1218 (1995) 37 Cal. Rptr.2d 875 STEVEN GERVASE et al., Petitioners, v. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; PRUDENTIAL SECURITIES, INC., et al., Real Parties in Interest. Docket No. C017925. Court of Appeals of California, Third District. January 26, 1995. *1223 COUNSEL Archibald M. Mull III and Allan S. Haley for Petitioners. No appearance for Respondent. *1224 St...
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*1466 Opinion I. Introduction In this case we hold that the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) does not require an environmental impact report (EIR) for a project that might be affected by preexisting environmental conditions but will not change those conditions or otherwise have a significant effect on the environment. Bi...
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Opinion I. Introduction Defendant Robert Gonzales was charged by information with first degree burglary (Pen. Code, §§ 459, 460, subd. (a)). 1 The information alleged three prior serious felony convictions (§ 667.5, subd. (a)) and four prior prison terms (§ 667.5, subd. (b)). A jury found defendant guilty of the substantive charge; in a separate proceeding, the trial court found all the enh...
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Opinion In this appeal we consider the scope of a surety bond issued by respondent United States Fidelity and Guaranty Company (USF & G) for the benefit of its obligee, appellant Airlines Reporting Corporation (ARC). The surety bond covered the default of the principal, a travel agency, when the agency failed to pay for airline tickets issued according to an agreement between ARC and the ...
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Opinion This is an appeal from a judgment of nonsuit entered in a medical malpractice action. Plaintiff Ricardo C. Espinosa, Jr., brought this action through his guardian ad litem for brain damage allegedly sustained by him due to the negligence of defendants Little Company of Mary Hospital (Hospital), which performed certain prenatal care and testing, and Dr. Michael L. Friedman who was ...
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Opinion Zador Corporation, N.V., appeals after the trial court disqualified Heller, Ehrman, White & McAuliffe (Heller) from serving as Zador’s counsel. For reasons we shall explain, we reverse. Facts and Procedural Background In 1983, Zador purchased the “Platt Property.” The Young family owned Zador. C. K. Kwan, acting as agent for the Young family, received the Platt Prope...
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Opinion Plaintiffs and appellants Joel DiMarco and Linda DiMarco (collectively, DiMarco) appeal a judgment insofar as it awards $19,575 in attorney fees and other costs to defendant and respondent Dixie N. Chaney (Chaney). The essential issues are whether the arbitrator exceeded his powers by denying an award of attorney fees and costs to Chaney, and whether the trial court erred in ...
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*1326 Opinion Carolina Lanes, Inc. (Lanes or judgment debtor) appeals an order denying its motion to vacate and quash a writ of execution obtained by judgment creditor Regency Outdoor Advertising, Inc. (Regency or judgment creditor). Carolina Enterprises, Inc. (Enterprises or sublessee) appeals an order denying its third party claim which asserted a sublessee interest in the...
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Opinion In this writ proceeding Arnold Paul Mundy challenges the constitutionality of the newly enacted asset forfeiture law, *1399 Statutes 1994, chapter 314. (Health & Saf. Code, 1 § 11469 et seq.) 2 We find the law withstands constitutional scrutiny and deny Mundy’s claim for extraordinary relief. I Factual and Procedural Background Thi...
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Opinion Theodore Flynn appeals from the judgment entered following a jury trial that resulted in his conviction of assault with a deadly *1390 weapon (Pen. Code, §245, subd. (a)(1)) 1 and court findings that he had suffered three prior serious felony convictions (§ 667, subd. (a)). He was sentenced to prison for a total term of eighteen years, comprised of a three-...
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Opinion Four tenants of a mobilehome park protested the park owner’s request for a rental increase. This exercise of free speech and right to protest resulted in their being named as defendants in the park owner’s action against the city for failure to grant the total relief requested. Do the tenants have to remain in the lawsuit and represent unwillingly the rest of the mobilehome park t...
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Opinion Plaintiffs, owners of a family dairy farm, sued defendants, milking machine manufacturers, for lost profits and general and punitive damages. After a jury trial and various posttrial proceedings, judgment was entered for plaintiffs on two counts and for defendants on the remaining counts. Both parties appeal, raising more than 20 issues arising from virtually every stage of the ca...
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Opinion Defendants and appellants Casa de Palms, Ltd., Tumanjan Development Corporation, Michael Tumanjan, and George Tumanjan appeal from a default judgment in favor of plaintiff and respondent Metropolitan Service Corporation and from an order denying defendants’ motion pursuant to Code of Civil Procedure section 473 to set aside the default. 1 Factual and Procedural Backgr...
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Opinion Introduction Plaintiff Maureen Mero appeals from a summary judgment in favor of defendant Armin Sadoff, M.D. Statement of Facts The following facts are undisputed: On November 14, 1989, plaintiff injured her back while at work for Shell Oil Company (Shell). She filed a claim for workers’ compensation benefits from Shell. At the time, Shell was self-insured. In ...
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Opinion Appellants Robert Lineaweaver, Floyd King, and Ralph Ward brought actions against numerous asbestos suppliers seeking to recover for personal injuries sustained from their repeated exposure to asbestos insulation products. A bifurcated trial on the separate issues of damages and liability proceeded against a lone defendant, respondent Plant Insulation Company (Plant). A jury found each ap...
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Opinion harles J. Pankow appeals a judgment vacating an arbitration award. 1 The issue before us is whether an arbitration award must be vacated because an arbitrator was formerly a partner in a law firm during a period when the firm represented a business entity in which one of the arbitrating parties had a financial and/or leadership interest, even though the arbitrator was n...
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Opinion Zorak Teroganesian appeals from judgment entered following a jury trial in which he was convicted of use of a destructive device and explosive to destroy property, count 2, (Pen. Code, § 12303.3); explosion of a destructive device causing bodily injury, count 3, (Pen. Code, § 12309); and first degree burglary, count 4, (Pen. Code, § 459). He was sentenced to the middle term of seven yea...
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Opinion Introduction Appellant Polly Parsons appeals from the judgments of dismissal entered upon orders sustaining without leave to amend the general demurrer of respondents Edward Tickner, James Dickson, Edward Tickner, and James Dickson doing business as Tickner Dickson Music, Len Freedman, and Len Freedman doing business as Len Freeman Music (hereafter collectively referred to as...
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Opinion State Farm Mutual Automobile Insurance Company (State Farm) appeals the judgment against it for its alleged bad faith refusal to settle an insurance claim filed by Raymond and Esther Kardly. 1 The jury awarded the Kardlys $80,000 contract and compensatory damages, but no *1749 punitive damages. State Farm contends it was prejudiced by the trial court’s exclusion of relevant evidence...
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Opinion Defendant and appellant County of Los Angeles (County) appeals from the order of the trial court granting plaintiff and respondent Daryl K. Hata’s (Hata) motion for a new trial on his claim for damages based on the negligent conduct of Los Angeles County Harbor/UCLA Medical Center and its medical personnel. Hata was nonsuited on his case-in-chief based on immunity conferred on Cou...
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Opinion — Following a mistrial declared because óf a hung jury, the jury in John Fiekj’s second trial found him guilty of first degree murder (Pen. Code, 2 § 187).'The jury also found true, allegations Field personally used a firearm in the cornmission of the offense within the meaning of sections 1203.06, subdivisioñ (a)(l), and 12022.5. The trial court sentenced Field to the ...
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Opinion This appeal presents the question whether an alleged father can “buy out” his duty to support his minor child by a “settlement” with the child’s mother. Defendant, the alleged father, paid Regina Todrzak, the mother, $15,000 in consideration for which Regina signed a covenant not to sue and dismissed with prejudice her pending paternity action against defendant. *1841 ...
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*18 Opinion Western Polymer Technology, Inc. (Western), and its president and principal shareholder, William D. Wright, appeal following summary judgment of their insurance bad faith action against Reliance Insurance Company and United Pacific Insurance Company (collectively Reliance). 1 Western contends that Reliance acted in bad faith by unreasonably settling a suit ...
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Opinion J. Plaintiff and appellant Deborah Masters (appli- cant) sued defendants San Bernardino County Employees Retirement Association (Association), the individual members of the Association’s retirement board, the board’s medical advisor and an administrator for the Association for alleged wrongful conduct in initially denying and failing to promptly award her a disability re...
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*81 Opinion In this case, a liability insurer defended its insured under a reservation of rights that created a conflict of interest between the two of them. The issue on appeal is whether a liability insurer can sue its insured’s Cumis counsel 1 for negligence based on a breach of statutory duty for failing — in contravention of Civil Code section 2860 — to...
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Opinion Service Employees International Union Local 715, AFL-CIO (the Union), appeals from a judgment denying declaratory relief against respondents, the City of Redwood City and the Redwood City Fire Department (collectively, the City). The trial court held that the Fire Prevention Officers (FPO’s) employed by the City and represented by the Union were not “peace officers” within the mea...
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Opinion Defendant Jaime Antonio Garza was charged by information with possession of cocaine for sale. (Health & Saf. Code, § 11351.) The information further alleged various prior felony convictions. A jury found defendant guilty of the new offense and, in a bifurcated proceeding, defendant admitted all the alleged priors. The trial court sentenced defendant to seven years in state prison,...
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Opinion This consolidated proceeding involves seven petitions for writ of mandate; in four of such petitions, petitioners, plaintiffs in the action below, seek to vacate those parts of the trial court’s orders of June 27, 1994, and August 4,1994, precluding petitioners from calling Francisco Robleto, a former employee of real party in interest and defendant Commercial Building Maintenance...
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Opinion The Legislature enacted in 1992, and amended in 1994, Health and Safety Code section 1418.8. That amended statute generally allows certain incompetent patients residing in skilled nursing facilities or intermediate care facilities to receive medical treatment, after a physician has determined a patient’s incapacity to give informed consent to such treatment and an interdisciplinar...
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Opinion Herbert N. Davison appeals from his conviction for robbery. He contends that the trial court committed instructional error. We agree that the instructions were erroneous. However, we find that the error was harmless, and affirm. I. Factual and Procedural Background On the evening of February 10, 1993, Charlotte Rosebrough drove to a bank in Berkeley, parked her car in th...
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Opinion Statement of the Case On May 4, 1993, an information was filed in Kern County Superior Court charging appellant Luis Gonzales with two counts of check forgery, in *231 violation of Penal Code section 470, 1 and one count of possessing a dirk or dagger, in violation of section 12020, subdivision (a), to which he entered a plea of not guilty. Trial proceedings commenced June 30, 1...
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Opinion In this case we address the question whether Government Code section 831.7, 1 which provides qualified immunity to public entities and public employees for injuries sustained by a person during “hazardous recreational activity,” immunizes a school district from liability for injuries sustained by a minor student during a soccer match conducted as part of a junior high s...
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Opinion Plaintiff appeals from a judgment of dismissal following an order granting defendants’ motion for summary judgment. Plaintiff’s complaint seeks damages for injuries suffered when her head struck the metal frame of a raft during a commercial rafting trip sponsored and conducted by defendants. The trial court concluded plaintiff’s negligence claim is barred by the doctrine of primar...
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Opinion This is an appeal from an order terminating child support upon a finding by the trial court that the child’s mother was intentionally frustrating the father’s efforts to maintain contact with the child. Contra Costa County, to whom the child support payments had been paid, appeals, arguing that mere interference with visitation, without concealment of the child, is not a sufficient grou...
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Opinion Topa Insurance Company appeals from an order denying a motion for discharge of forfeiture of a bail bond, and from the summary judgment granted in favor of the People of the State of California. It contends that because of the trial court’s delay in entering summary judgment, it lost jurisdiction to do so under the statutes in effect at the time, resulting in exoneration of the ba...
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Opinion This appeal arises from the effort of plaintiff Timothy Kirk Evans, as personal representative of the estate of Larry Lloyd Royse, to enforce a money judgment against William and Emma Paye by executing on debts allegedly owed to them by their son, defendant Mark *270 Paye. 1 (Code Civ. Proc., §§ 700.040, 701.010 et seq. [under certain circumstances, these s...
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*289 Opinion While walking down a hotel hallway, two police officers passed the partially open door of a hotel room. Through the doorway, one of the officers observed defendant Fernando M. Ortiz in the room with a woman who was counting out tinfoil bindles and placing them on a table. Reasonably believing the bindles contained heroin, and fearing the contraband might be destroyed...
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Opinion Ernesto Diaz Colado appeals following revocation of his probation in case Nos. CR127310 and CR130618. We affirm. Background The facts are undisputed. Colado was, in case No. CR127310, convicted of possessing heroin for sale. While on probation from that offense he was, *262 in case No. CR130618, again convicted of sale of heroin, this time while armed with a firearm. Although se...
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Opinion Jose J. Campos appeals from a jury’s determination that he is a mentally disordered offender (MDO). (Pen. Code, § 2960 et seq.) He contends the trial court erred: (1) in allowing the sole expert witness, Audrey Mertz, M.D., to relate that nontestifying experts who evaluated appellant concurred in her opinion that appellant met the MDO criteria; and (2) by admitting into evidence reports pr...
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Opinion The question presented by this case is whether a killing which occurs during the perpetrator’s flight from a burglary occurs “in the perpetration” of the burglary and therefore is felony murder. We conclude that such a killing is felony murder and affirm the judgment. Facts Defendant entered a supermarket, grabbed $75 out of a cash register and ran. Several supermarket employees pur...
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Opinion Judy and William Henry appeal from a judgment dismissing their medical malpractice complaint after the trial court sustained respondent’s, Thomas Clifford, M.D., demurrer without leave to amend. The trial court ruled that the statute of limitations had run (Code Civ. Proc., § 340.5) and the action was barred by the doctrine of res judicata. We affirm and impose sanctions for the f...
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Opinion Appellant Paul Hesse was injured in December 1990 while a guest at the Posada Real Best Western Hotel (the Posada) in the City of San Jose Del Cabo, Baja California, Mexico. He filed a personal injury lawsuit in 1991 in the Los Angeles County Superior Court, naming the Posada, Jig Stop Tours, a California travel agency, and respondent Best Western International, Inc. (respondent). Respo...
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Opinion The State of California seeks a prerogative writ to set aside an order of the superior court overruling its demurrer to the first amended complaint of real party in interest Allison Young. Young has sued the state for injuries she sustained when she fell off a horse on a trail in a state park. The state contends that Young cannot, as a matter of law, establish her premise for stat...
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Opinion The respondent superior court has declared unconstitutional, under the First Amendment, a San Jose city ordinance which outlaws targeted picketing within 300 feet of a targeted residence. The City of San Jose seeks expedited review of this decision by writ of mandate. Although the ordinance does not apply specifically to anti-abortion protesters, the present controversy arose when...
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Opinion A jury convicted appellants, David Anthony Jackson and Deon Lagrant Swayzer, of numerous counts of forcible rape, forcible oral copulation, robbery and kidnapping and found true several related enhancements for firearm use, kidnapping for sexual purposes and infliction of great bodily injury. Appellants appeal their convictions, contending the trial court made numerous sentencing and ot...
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Opinion This is the fourth opinion of the Court of Appeal spawned by insolvency proceedings involving Executive Life Insurance Company (ELIC), a series which threatens to eclipse in scope, if not in time, the 30-year history of similar past litigation involving Pacific Mutual Life Insurance Company of California. 1 In Texas Commerce Bank v. Garamendi (1992...
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*487Opinion I. Introduction Defendants, Daryl F. Gates, Matthew Hunt, Ronald Frankel, Ronald Banks, Paul Jefferson, and Bob Hansohn, all former or present senior commanders in the Los Angeles Police Department,1 seek a writ of mandate to compel the respondent court to sustain a demurrer to two of six causes of action in the first amended complaints brought by plaintiffs, Takeo Hirata, Fidel Lopez...
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*428Opinion The parties contest the enforceability of a “gold clause,” a price-indexing contract clause used to adjust for inflation, which was contained in a 95-year ground lease executed in 1929. Plaintiffs, a small group of family trusts and individuals, are owners and lessors, and defendant is the current tenant and lessee. The parties are successors in interest to the 1929 ground lease of pr...
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Opinion The trial court denied Leola Kindt’s motion under Labor Code section 3856, 1 to allocate from a workers’ compensation lien an amount for attorney fees and costs she incurred in obtaining the judgment from which the lien was satisfied. She appeals, arguing there was insufficient evidence to show the lienholder actively participated in the lawsuit resulting in the judgmen...
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*448 Opinion Introduction Aura R. appeals from a 12-month status review order which continued family reunification services and denied her request for immediate return of her children, Tania and Norman. Tania (aged five) and Norman (ten months) were detained in protective custody in February 1992, pursuant to a petition alleging serious physical harm, failure to protect...
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Opinion In this appeal we determine that a defendant who uses a firearm after completing the act constituting burglary but before he has reached a place of temporary safety is subject to the firearm use enhancement of Penal Code section 12022.5, subdivision (a). A jury convicted defendant of two counts of burglary (Pen. Code, § 459), 1 being a felon in possession of a firearm (§ 12021, subd...
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Opinion Does the filing of an appeal by the People constitute a changed circumstance entitling the defendant to a bail review under Penal Code 1 section 1275? Under the facts of this case, we answer that question in the negative and deny the petition. *443 Background After jury trial with Judge Napoleon Jones presiding, Murray Weiner (Weiner) was convicted of first degree murder with pe...
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Opinion A 14-year-old child was killed by a third party while she was in the care of her foster parents. Plaintiffs, the natural mother and *588 siblings of the child, alleged that the foster parents’ negligent supervision caused or contributed to the child’s death. The foster parents demurred to plaintiffs’ amended complaint on the ground that plaintiffs failed to file a claim with the Foste...
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Opinion In the published portion of this opinion we will uphold the trial court’s decisions on two novel issues: (1) that plaintiff and respondent Brian E. Nordquist, a television station sports director/newscast anchor, is entitled to overtime compensation under subdivision 3 of Industrial Welfare Commission Order No. 11-80 (IWC Order No. 11-80) because he was not exempt as a professiona...
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Opinion Owens-Illinois, Inc. (Owens-Illinois or appellant), timely appeals from a judgment entered after a jury trial, by which it was held 100 percent responsible for personal injuries to Charles Wayne Sparks (Sparks) and his wife, Betty Raley Sparks, respondents herein. 1 The jury found that an Owens-Illinois product, an asbestos-containing thermal insulation known as Kaylo, ...
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Opinion Introduction In this case we must decide whether plaintiff Louisiana-Pacific Corporation’s (L/P) tort action against defendant Koppers Company, Inc. (Koppers) is preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). 1 We conclude the action is preempted and, hence, that the trial court correctly granted Koppers’s motion for summary judgment....
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Opinion Plaintiff Jane D. brought suit against Father Michael Dermody. Beginning when she was 15, she sought counseling from him and he induced her to have sexual relations with him. Her suit resulted in a default judgment. Plaintiff then brought a declaratory relief action seeking to establish coverage for that judgment under a policy issued by defendant The Ordinary Mutual. Defendant’s ...
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Opinion A management employee claims he is entitled to payment for all the unused vacation time he accumulated over the 12 years he was employed by a company. He also claims he is entitled to compensatory pay for extensive “overtime” hours he alleges he worked for the firm. Alvaro Sequeira. appeals from the judgment of the trial court awarding him part of his claim for compensation in lieu of...
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Opinion William Thomas White appeals from the judgment (order committing him to the Department of Mental Health) entered following a jury trial at which it was found that he was a mentally disordered offender (MDO) (Pen. Code, § 2962). One of his contentions is that no evidence was presented that the person in charge of treatment evaluated appellant. [[/]] * We reject his contentions and affi...
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*660 Opinion In this case we conclude that a defendant who has suffered a previous conviction for a serious or violent felony and who is convicted of two current felonies must be sentenced consecutively for the current felonies, and that the sentence for each determinate term must be doubled. Factual and Procedural Summary This case arises under the “Three Strikes” stat...
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*675 Opinion The then fifteen-year-old daughter of plaintiffs Nelson and Sharon Robbins left home for three days and stayed at a private nonprofit shelter for abused and troubled teenage girls, claiming that she did not want to go home because she was fighting with her parents and her father had physically abused her on three recent occasions. The suspected child abuse was report...
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Opinion The competition privilege is an affirmative defense to the tort of interference with prospective economic advantage. We hold that to defeat the privilege plaintiff must prove defendants committed an unlawful or illegitimate act which is independently actionable. Facts 1 and Procedural History In December of 1985, plaintiff San Francisco Design Center Associate...
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Opinion Appellant Linda May Gaul-Alexander was convicted by a jury of conspiracy to commit nonviolent prison escape (Pen. Code, § 182, subd. (a)(1)), 1 aiding and abetting the attempted escape of a prisoner (§ 4534), bigamy (§ 281), and forgery (§ 470). She was placed on five years’ probation under various terms and conditions, including that she spend one year at a psychiatric...
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Opinion The City and County of San Francisco (hereinafter the City) 1 appeals an order issuing a writ of mandate compelling the City to pay certain of its employees the difference between the salary they received in the fiscal year 1991-1992, and the salary they would have received pursuant to the *755 1991-1992 salary standardization ordinance, had it not been vet...
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Opinion This is an action for violation of plaintiffs’ civil rights under 42 United States Code section 1983. The action arose out of defendant city’s handling of plaintiffs’ application to build apartment *694 buildings on a 29.3-acre parcel in the northeastern foothills of the city. Plaintiffs contend that the city violated their substantive due process and equal protection...
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Opinion The surviving wife and children of decedent Lester Bryant appeal from an order dismissing their wrongful death action against defendant Brenda Glastetter after the trial court sustained Glastetter’s demurrer without leave to amend. Decedent was a tow truck driver who was struck and killed by a third party as he attempted to remove Glastetter’s car from the side of the freeway. We ...
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Opinion I. Introduction Defendant, the University of Southern California, has moved to dismiss the appeal of plaintiff, Marvin Cobb. Plaintiff tried two separate claims to a jury. The first cause of action tried to the jury was for contract breach. The second cause of action tried to the jury was for race discrimination. On June 6, 1994, the jury returned a verdict in favor of plaintiff on his con...
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*961 Opinion We here review the denial of summary judgment in one of the breast implant cases currently under administration by the San Diego County Superior Court (see McGhan Medical Corp. v. Superior Court (1992) 11 Cal.App.4th 804 [14 Cal.Rptr.2d 264]). We find the case appropriate for writ relief because our intervention will terminate an action which ot...
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Opinion A prison inmate brought a pro se action against his former criminal defense attorney and others, alleging legal malpractice and other *790 causes of action. The former attorney cross-complained for attorney fees arising out of the prior representation. When the prisoner failed to appear at a status conference, the trial court denied his motion for appointed counsel, denied his request...
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*810 Opinion I. Factual and Procedural Summary A. Procedural. On December 22, 1992, appellant filed its first amended verified petition for writ of mandate. In its petition, appellant sought a peremptory writ of mandate compelling respondent Commission on State Mandates (the Commission) to vacate its determination that Penal Code section 1 987.9 ...
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Opinion Defendant/appellant Michelle Jane Barclay appeals from that portion of a judgment awarding plaintiff/respondent Russell Moffett prejudgment interest and expert witness costs pursuant to Code of Civil Procedure section 998. 1 She contends respondent is not permitted to recover prejudgment interest and costs because he did not serve her personally with an offer to compromise (§ 998) whe...
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*987 Opinion I. Introduction This is an appeal from a summary judgment for defendants in a fraud action involving a failed commercial transaction. The primary issue is whether a contract clause which states that the parties relied only on representations contained in the contract establishes, as a matter of law, that a party claiming fraud did not reasonably rely on represen...
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Opinion Every employer is required to pay to each employee not less than the applicable minimum wage for all hours worked. (Cal. Code Regs., tit. 8, § 11010, subd. (4)(B).) Industrial Welfare Commission (IWC) Order No. 1-89, 1 regulating wages, hours, and working conditions in the manufacturing industry in the State of California defines “hours worked” as “the time during which...
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32 Cal.App.4th 998 (1995) 38 Cal. Rptr.2d 790 JOHN FORMAN, Plaintiff and Appellant, v. CHICAGO TITLE INSURANCE COMPANY, Defendant and Respondent. Docket No. B074889. Court of Appeals of California, Second District, Division Seven. February 27, 1995. *999 COUNSEL Susan A. Mitchell for Plaintiff and Appellant. Browne & Woods, Allan Browne, Allen B. Grodsky and Robert B. Broadbelt for Defendant ...
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Opinion Background On April 8, 1991, Bruce De May caused a vehicle accident in which his passenger, Jeannette Davenport, suffered serious permanent injuries. De May and Davenport are co-owners of the automobile and co-insureds under a policy issued by Interinsurance Exchange of the Automobile Club of Southern California (Auto Club). They are not spouses or otherwise related to ea...
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Opinion Appellant Jeffrey Scott Eddy was originally sentenced to three years in state prison for possessing a controlled substance for sale (Health & Saf. Code, § 11378) and to a one-year consecutive term for vehicle theft (Veh. Code, § 10851). The crimes were committed in 1992 and 1991, respectively. The court subsequently suspended criminal proceedings and committed appellant to the California ...
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Opinion Defendant Betty Jo Stanfield appeals from her conviction of making terrorist threats. She threatened that if her former attorney did not join her in bringing her “Universe Reform Party” into power, she would hire gang members to kill him. Appellate decisions conflict as to whether a threat containing such conditional language supports a conviction under Penal Code section 422. (Compare ...
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Opinion Michael Dewane Brandon was convicted by a jury of kidnapping for robbery (Pen. Code, 1 § 209, subd. (b)) and robbery (§211). In connection with each offense, the jury also found true the allegation Brandon had personally used a knife. (§ 12022, subd. (b).) In separate proceedings, the court found true allegations Brandon had suffered a prior prison term 2 and...
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Opinion An amended information charged defendant, a former high school music teacher, with 22 counts of improper sexual conduct involving 3 *1125 of his female students. The jury acquitted defendant of all of the charges except for two counts of misdemeanor child annoyance involving one of the three students, K.V. (Pen. Code, § 647.6; formerly Pen. Code, § 647a.) The tri...
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*1083 Opinion Herbert Gray was dismissed from his position as a captain with the Tulare County Sheriff’s Department (Department) for, among other reasons, making statements in a local newspaper critical of the sheriff, Melvin Coley. Gray appealed his dismissal to the Tulare County Board of Supervisors (Board). A four-day evidentiary hearing followed before an administrative law judge who reco...
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Opinion In this appeal we determine the trial court erred in dismissing the proceedings against Jesus for discovery abuses without considering the interests of justice and Jesus’ welfare. Accordingly, we reverse. *1059 I On October 5, 1993, a Welfare and Institutions Code 1 section 602 petition was filed charging Jesus with robbery. The next day, Jesus was ordered detained pending a jur...
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Opinion Reynaldo Peneda appeals his conviction for conspiracy to transport cocaine and the transportation and possession of that cocaine for sale. The jury found the total amount of cocaine exceeded 100 pounds in weight which enhanced Peneda’s sentence by 15 years. He was then sentenced to a total of 21 years in prison. 1 Peneda contends his motion to suppress evidence was er...
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Opinion Defendant Michael W. (appellant) has been a state hospital patient intermittently since 1981 when he was found not guilty of robbery by reason of insanity under Penal Code 1 section 1026. In 1991 appellant consented to have his commitment extended for two years under section 1026.5, subdivision (b). At the close of that term the state petitioned for an additional two-year extension. M...
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Opinion After National American Insurance Company (National), the surety of a bail bond, obtained an order vacating the forfeiture of bail *1179 and exonerating the bond conditioned on the payment of the costs of returning the defendant to custody, National failed to pay the costs. The municipal court entered judgment against National for the full amount of the bond, and National appealed to ...
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Opinion Defendant entered negotiated pleas of no contest to second degree murder, assault with a firearm, and shooting at an occupied motor vehicle. Defendant admitted allegations that he personally used a firearm in each offense. *1187 On the date set for pronouncement of judgment and sentence, defendant moved to withdraw his plea on the ground “his free will was overcome” by “pressure fro...
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Opinion In this appeal, minor Ricardo A. challenges the juvenile court’s finding that he is in criminal contempt of court in violation of Penal Code section 166, former subdivision 4, because he violated the terms and conditions of his probation by possessing a knife and gang paraphernalia. His sole contention on appeal is that the true finding under Penal Code section 166, the gener...
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Opinion Plaintiff State Compensation Insurance Fund (SCIF) filed an action against its former insureds, Robert and Judy Brown, alleging its right to recover premiums due on the insurance contract. 1 The defendants, doing business as Mountain Valley Trucking (MVT), successfully moved for summary judgment on the ground they were not contractually obligated to pay the premiums bec...
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Opinion This case centers on the rights of a purchaser of a defective piano. Defendant and cross-complainant Dan Lofing (Lofing) purchased a Steinway grand piano from Sherman Clay & Co. (Sherman Clay), Steinway & Sons’ (Steinway) Sacramento dealer, and received financing through Sherman Clay’s finance company, Music Acceptance Corporation (MAC). 1 Lofing became disenchanted wit...
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Opinion Carole Lynne Alberts was convicted in a court trial of two counts of attempted arson of an inhabited structure (Pen. Code, §§ 664, 451, subd. (b), counts I and II,) and making a terrorist threat (Pen. Code, § 422, *1426 count III). 1 She meritoriously contends that she was improperly charged and sentenced pursuant to the general attempt statute, i.e., secti...
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Opinion Introduction Kevin P. Huricks (Huricks) appeals from the judgment entered following his plea of nolo contendere to six counts of forcible rape, violations of Penal Code section 261, subdivision (a)(2), 1 together with an enhancement allegation that the victim was vulnerable within the meaning of section 667.9, subdivision (a); one count of attempted forcible oral c...
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*1446 Opinion In this civil asset forfeiture proceeding for forfeiture of property connected with drug trafficking (Health & Saf. Code, § 11470 et seq.), 1 the People appeal from summary judgment and judgment on the pleadings entered in favor of claimants Ruben Parra Ruiz and Abelardo Parra Ruiz. The People contend the trial court erred in determining a criminal convic...
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*1218 Opinion I. Appellants Veneta Greene, Randall Williams and Zephyr Tate-Mann bring this appeal following a ruling of the trial court which sustained demurrers without leave to amend. 1 The demurrers, which challenged the second amended complaint (complaint), were brought by respondents Associated Pomona Teachers (APT) and Tom Hollister, and Pomona Unified Scho...
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Opinion Penal Code section 832.7 provides that peace officer personnel records and records of investigations on citizens’ complaints are confidential. It provides that these records “. . . shall not be disclosed in any *1432 criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. . . .” The San Francisco Bay Guardian (the Guardian) newspaper s...
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Opinion I. Introduction Appellant appeals from a judgment of dismissal, based upon the sustaining of a demurrer without leave to amend, which was entered after the trial court granted respondent’s motion to reconsider its initial order granting appellant relief, pursuant to Government Code section 946.6, from the claims filing requirements of the Tort Claims Act. (Gov. Code § 810 et ...
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Opinion Plaintiff Jerry Setliff appeals from a judgment in favor of all nonsettling defendants after their demurrers were sustained or their motions for judgment on the pleadings were granted. Plaintiff contends his amended complaint stated a cause of action for negligence and products liability under traditional theories, as well as a cause of action for products liability under alternat...
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Opinion Appellants are (a) injured employees and (b) survivors of other employees killed in an employment-related van accident. They are assignees of the employer’s interest under a liability provision contained in an insurance policy issued by respondent, State Compensation Insurance Fund. As such, appellants sued respondent insurer for declaratory relief and damages arising from respond...
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Opinion I. Introduction Defendant, Michael Sims Dixon, appeals his conviction for second degree murder plus a finding he personally used a firearm. (Pen. Code, 1 §§ 187, 12022.5.) He raises various contentions on appeal, but in the published portion of this opinion, we address the issue of whether the trial judge had a sua sponte duty to instruct the jury on the lesser included offenses of ...
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Opinion Appellant Ira Phillip Murray contends the trial court failed to sentence him in accordance with a plea bargain, and that he should be permitted to withdraw from the plea bargain or be sentenced in accordance with it. In the alternative, he contends the charges should be dismissed altogether because he was denied a speedy trial and was subjected impermissibly to multiple prosecutio...
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Opinion In this product liability case, the court granted a nonsuit after plaintiff’s opening statement, even though it was conceded that plaintiff had stated a prima facie case under the “risk-benefit” theory of Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413 [143 Cal.Rptr. 225, 573 P.2d 443, 96 A.L.R.3d 1] (Barker). The court did so in order to enabl...
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*1578 Opinion Robyn R. Devereaux (appellant) appeals the dismissal of her action against Latham & Watkins et al. (collectively, respondent or the firm) for her failure to post security as required by Code of Civil Procedure section 391.3. 1 The instant appeal is only the latest installment in an acrimonious dispute between the law firm of Latham & Watkins and appella...
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*1619 Opinion Introduction Plaintiff Municipal Court Judges’ Association of Los Angeles County objects to the October 26, 1993, decision by the Los Angeles County Board of Supervisors to consolidate court-related services in the county sheriff instead of in the marshal’s office. The plaintiff sought discovery concerning whether the supervisors ignored, or even considered, the vote of the Lo...
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Opinion Gilbert E. appeals from the order of wardship (Welf. & Inst. Code, § 602) based upon the juvenile court’s finding that he committed four counts of misdemeanor vandalism (Pen. Code, § 594, subd. (b)(4)), and four counts of affixing graffiti (Pen. Code, § 640.6). He contends that his inculpatory statements to the police were inadmissible because the officer deliberately continued to...
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Opinion Plaintiffs appeal from a superior court judgment denying their petition for writ of mandate challenging enforcement of the Heavy-Duty Vehicle Inspection Program (Cal. Code Regs., tit. 13, §§ 2180-2187, hereafter HD VIP) adopted by defendant California Air Resources Board (Board). HD VIP establishes procedures and criteria for intermittent roadside measurement of smoke emissions fr...
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Opinion We again confront a situation that, unfortunately, is becoming all too common, domestic violence culminating in murder. We revisit our earlier opinion in People v. Zack (1986) 184 Cal.App.3d 409 [229 Cal.Rptr. 317] (Zack) and conclude that it remains “good law” after the California Supreme Court opinion in People v. Ewoldt (19...
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Opinion California’s Franchise Investment Law was intended for precisely this case. The law’s statement of legislative intent declares that “California franchisees have suffered substantial losses where the franchisor or his representative has not provided full and complete information regarding the franchisor-franchisee relationship, the details of the contract between franchisor and fra...
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Opinion I. Introduction Defendant appeals from a judgment entered after a verdict in which the jury found that defendant constructively discharged plaintiff and was liable for unlawful age discrimination. Plaintiff appeals from the order granting a partial new trial on the issue of punitive damages. We initially reduced the punitive damages and affirmed the judgment as modified. The Calif...
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Opinion Plaintiff/appellant Craig Mirvis appeals a summary judgment in favor of defendant/respondent Becky Crowder in his action for personal injury, contending the court erred in determining his action was barred by the statute of limitations. We conclude that Rappleyea v. Campbell (1994) 8 Cal.4th 975 [35 Cal.Rptr.2d 669, 884 P.2d 126] requires reversal. Facts On November 18, 1991, appellant was...
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Opinion In Feminist Women’s Health Center v. Blythe (1993) 17 Cal.App.4th 1543 [22 Cal.Rptr.2d 184], we addressed defendants’ challenges to the trial court’s issuance of a permanent injunction imposing time, place and manner restrictions on the activities of antiabortion demonstrators at plaintiff’s Sacramento clinic, and to the court’s order awarding plaintiff attorney fees pursuant to Code of C...
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Opinion Intercommunity Medical Center (IMC) appeals from the denial of its petition for writ of mandate under section 1094.5 of the Code of Civil Procedure, in which it sought review of an administrative decision of the State Department of Health Services (the Department) disallowing IMC’s cost reporting of its psychiatric unit as a separate cost entity. The Department based its decision ...
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*1697 Opinion I. Introduction Appellant brought a civil action against respondent, his former employer, in which he based various causes of action on the allegation that respondent harassed and terminated him on the basis of his sexual orientation. In response to numerous pretrial motions, the trial court dismissed all of appellant’s causes of action. On appeal, appellant se...
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Opinion Joseph G. appeals the juvenile court’s order declaring him a delinquent minor following true findings he carried a loaded firearm at *1738 school, carried a loaded firearm in a public place and carried a concealed weapon (Pen. Code, §§ 626.9, 1 subd. (a), 12031, subd. (a)(1), 12025, subd. (a)(2)). On the afternoon of Wednesday, October 20, 1993, the vi...
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Opinion I. Factual Background In the early morning hours of August 9, 1992, Jorge Verdin Mendez (Verdin) was driving east on Ralston Street in the City of Ontario. In the car with him were Manuel Rios, Marcos Rios, and Jesus Rios. 1 As Verdin slowed down for a stop sign at the intersection of Ralston and Euclid Avenue, defendant Francisco Garcia (defendant) walked fro...
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Opinion Michael A. Venegas appeals his convictions of two counts of felony violation of Penal Code section 12280, subdivision (b) 1 (possession of assault weapons). He contends that his convictions must be reversed because the court erred in excluding evidence that he registered weapons with the Department of Justice in March of 1993. Appellant argues this evidence would have supported an aff...
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33 Cal.App.4th 8 (1995) 39 Cal. Rptr.2d 233 KAICHEN'S METAL MART, INC., Plaintiff and Appellant, v. FERRO CAST COMPANY, Defendant and Respondent; ROHR INDUSTRIES, INC., Third Party Claimant and Respondent. Docket No. B083226. Court of Appeals of California, Second District, Division Six. March 14, 1995. *10 COUNSEL Brown, Altshuler & Spiro and Bruce J. Altshuler for Plaintiff and Appellant. *11 E...
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Opinion Defendant appeals from the judgment following his conviction of one count of first degree murder with robbery as a special circumstance and two counts of attempted robbery. Defendant argues his convictions should be reversed because, as to each victim, he committed at most the crime of attempted extortion, not attempted robbery, and he was the victim of misconduct by the prosecuto...
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Opinion Introduction Petitioner Lea Purwin D’Agostino (petitioner) seeks a writ of mandate which would command real party in interest, the Los Angeles City Clerk, Elias Martinez (City Clerk), to place D’Agostino’s name on the ballot for the special election of a member of the city council for the fifth council district, which is set for April 11, 1995, on the ground that she has substantially...
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Opinion A woman has intercourse with several different men and conceives a child. Years later, she identifies one man as the father and blood tests show this man closely matches the genetic characteristics expected of the child’s father. By statute, these test results trigger a presumption of paternity. (Fam. Code, § 7555; former Evid. Code, § 895.5.) The other men are not tested. We conc...
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Opinion A jury convicted appellant of possession for sale of cocaine base (Health & Saf. Code, § 11378; count I), possession for sale of methamphetamine (Health & Saf. Code, § 11378; count II), and possession of a destructive device (Pen. Code, § 12303, a lesser included offense of Pen. Code § 12303.2; count III). Appellant then admitted two state prison felony allegations (Pen. Code, § 6...
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Opinion In this opinion we decide the constitutionality of Penal Code section 1026.5, subdivision (b), 2 which sets out the procedures for extending the commitment to the state Department of Mental Health of a person found not guilty of a felony by reason of insanity. Appellant Gary Lee Wilder (Wilder) contends he was denied due process at a trial under section 1026.5, sub...
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Opinion Defendant Hank Sexton appeals from a judgment of conviction after his guilty plea. He challenges the conditions of his grant of probation requiring restitution. We conclude that the court could properly order a restitution fine equaling the statutory minimum despite its finding that defendant lacked the ability to pay and, in the published portion of the opinion, that the court co...
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Opinion Respondent Kenneth Derrell Williams (hereafter Kenneth or respondent) and his brother Frederick Williams (hereafter Fredrick) were separately charged in Placer County Superior Court with the burglary, rape, robbery, kidnapping and murder, with special circumstances, of Heather Meade (hereafter Heather) in June of 1980. Attorneys Douglas Greer and Ronald Castro were appointed to represent ...
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Opinion Bennie and Lupe R. (appellants) appeal from an order terminating their legal guardianship over Alicia O. pursuant to Welfare and Institutions Code section 366.4.1 Alicia, bom on March 15, 1976, is mentally retarded and suffers from kyphoscoliosis (curvature of the spine) and cardiac defects. She is unable to speak except through a kind of sign language and has the mental age of a two-year...
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Opinion Appellant Stanislaus Audubon Society, Inc., appeals from the judgment denying its complaint and petition for writ of mandate which *147 challenged approval by respondent County of Stanislaus (County) of a proposed project by real party in interest Willms Ranch (Willms) to construct a golf course and attendant facilities. Appellant argues the County’s certification of a negative declar...
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Opinion Defendant appeals from the judgment following his conviction of selling a controlled substance, cocaine. We affirm. Facts and Proceedings Below While on bicycle patrol on a clear, sunny morning in October 1993, Officers Flynn and Gale observed what they believed to be a narcotics sale in a residential driveway. Flynn saw defendant and another man, Smith, standing in the driveway. Sm...
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Opinion In this case we hold that an “open pole bam” without walls is not a building within the scope of California’s burglary statute. Amber S. and an accomplice were caught in the act of stealing some 30 bales of hay from a structure described by the owner as an “open pole bam.” The structure was open on all sides, consisting of a roof and overhang held up by poles. Amber was charged with b...
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Opinion This is the third appeal in which we have dealt with legal issues arising from the anomalous status of a bayfront parcel owned by *215 appellants Littoral Development Co. and Diversified Realty Services (hereafter jointly referred to as Littoral). Here, Littoral contends: (1) The bayward one-third of its parcel was not subject to the jurisdiction of the San Francisco ...
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*273 Opinion While a judgment creditor is in the process of enforcing its judgment, the probate court orders a conservator for the judgment debtor’s estate. Here we hold that Code of Civil Procedure section 709.030 requires the judgment creditor to apply for payment to the probate court. 1 We affirm the order of the trial court denying the judgment creditor’s motion to require the sheriff t...
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Opinion James Graham (plaintiff) appeals from a judgment denying his petition for a writ of mandamus (Code Civ. Proc., § 1094.5) to set aside a decision of respondent State Board of Control (Board) which denied his application for restitution as the victim of a violent crime (Gov. Code, §§ 13959-13969.3 (hereafter the Statute); all references to sections of an undesignated code are to the...
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Opinion In February 1988, Richard Wade Farley killed numerous employees of ESL during a murderous rampage in ESL offices in a building *248 owned by ESL. Plaintiffs are the heirs of some of the ESL employees killed by Farley. Plaintiffs brought a wrongful death action against defendant TRW, Inc., and its wholly owned subsidiary ESL for negligence and premises liability. Summary judgment was e...
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Opinion Defendant, David William Taylor, appeals from a judgment of conviction entered on jury verdicts finding him guilty of three counts of rape (Pen. Code, 1 § 261, subd. (a)(2)), one count of oral copulation (§ 288a, subd. (c)), two counts of attempted oral copulation (§§ 288a, subd. (c), 664), two counts of kidnapping and one count of kidnapping of a victim under the age of fourteen (§§ ...
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Opinion Plaintiff Mary E. Bertrand (wife) appeals from an order of the trial court declaring that Social Security benefits paid to the parties’ child by reason of the death of defendant James Gordon Bertrand (husband) satisfy husband’s ongoing child support obligation. Wife contends credit for such payments made on account of death is not authorized by Family Code section 4504, which expressly ...
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Opinion Hermogenes DeGuzman (DeGuzman) appeals a trial court ruling revoking his status as an outpatient and returning him to Patton State Hospital (Patton). He contends the court erred in using a lesser standard of proof than “beyond a reasonable doubt,” and in considering concerns of public safety in determining that his outpatient status should be revoked. Factual and Procedural Background...
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Opinion This case presents the issue of whether Evidence Code 1 section 662, the common law presumption in favor of title, and its concomitant requirement of clear and convincing evidence to rebut the presumption, properly apply in family law proceedings when there is a conflict with the presumption that a husband and wife occupy a confidential relationship in their transaction...
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Opinion The California Department of Education (CDE) is required by state and federal disability statutes to make reasonable accommodation for the known physical or mental limitations of its employees who have a disability. This appeal concerns whether real party in interest, CDE, unlawfully discriminated against plaintiff, its employee, by terminating him for *425 misconduct...
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Opinion I. Introduction Petitioners, Mindy B. and David L., parents of the minors, Brittany L. and Shaundra L., have, pursuant to rule 39.IB of the California Rules of Court,1 filed separate petitions for writs of mandate seeking to compel the respondent court to set aside its order setting the underlying dependency proceedings for a hearing pursuant to Welfare and Institutions Code section2 366....
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Opinion This is an appeal by numerous school districts (the Districts) from a judgment denying them reimbursement, pursuant to California Constitution, article XIII B, section 6, 1 for the costs of a program, formerly required by regulations of the Department of Education, to alleviate and prevent racial and ethnic segregation of students (the antisegregation regulations). The ...
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Opinion Does mandamus lie to compel a registrar of voters to accept for filing a ballot argument that a voter tried to file more than five *392 hours after the widely publicized filing deadline? Invoking, among other things, the public interest in providing voters with a balanced statement of positions on the proposed ballot measure, the superior court concluded it did and co...
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Opinion Rosalinda E. and Thomas H., the parents of the minor, David H., appeal under Welfare and Institutions Code section 3951 from the order of the juvenile court, entered on November 16, 1993, which denied their motion to vacate a prior order terminating their parental rights under section 366.26.2 We affirm the court’s order. The court correctly found it had no jurisdiction to vacate its form...
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Opinion May a party select issues (other than duty and punitive damages) implicated in one or more causes of action in its complaint or cross-complaint, amend that pleading to add a cause of action for declaratory relief as to those issues, and then obtain a summary adjudication of the declaratory relief cause of action? We answer that it cannot, for, if it could, the result would fully s...
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Opinion Introduction Willie Williams (Williams) appeals from the judgment entered following a jury trial in which he was convicted of possession of a controlled substance, cocaine base, in violation of Health and Safety Code section 11350, a lesser included offense to that charged in the information filed against him. As to the offense charged, the jury found him not guilty of p...
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33 Cal.App.4th 482 (1995) 39 Cal. Rptr.2d 354 In re MARVEN C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MARVEN C., Defendant and Appellant. Docket No. B078648. Court of Appeals of California, Second District, Division Four. March 24, 1995. *483 COUNSEL Barbara Michel, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lun...
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*458 Opinion Mike Patton and Margaret Tam (appellants) appeal from an order denying attorney fees pursuant to a real estate sales contract. They contend that as prevailing parties they are entitled to attorney fees under Code of Civil Procedure sections 1032 and 1033.5. We affirm. Factual Background This litigation arises from a dispute concerning the purchase and sale ...
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Opinion In this matter we hold that a creditor whose security interest has lapsed retains priority rights against a subsequent purchaser which acquires its interest in the collateral with actual knowledge of the first creditor’s interest. We therefore issue a writ commanding the trial court to grant petitioner’s request for a preliminary injunction restraining real party from disposing of...
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Opinion I Defendant, John Swain, appeals his conviction of second degree murder and raises the following issues: (1) his trial before a municipal court judge violated articles II, section 1, and VI, section 4 of the state Constitution, as well as the separation of powers doctrine; (2) the denial of his motion to represent himself violated his constitutional right to self-representation; (3) i...
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Opinion Loren J. Prostano (Prostano) appeals from a postjudgment of dissolution of marriage order of modification of child support for the son of the parties bom in September 1990. The principal issue on appeal is whether the trial court erred in treating the travel expenses of the father (Gigliotti) to Massachusetts to visit with the parties’ son as a deduction from the amount of child support m...
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Opinion Introduction Kenneth Campbell appeals from a judgment denying a petition for mandamus following the Department of Motor Vehicle’s suspension of his driving license for failure to comply with the financial responsibility laws. We affirm. Facts On December 29, 1992, while driving an automobile owned by his mother, Lee Campbell, appellant was involved in a traf...
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Opinion Introduction Judgment debtors John and Barbara Pim and Pim Electric, Inc., appeal from an order of a referee appointed by the Alameda County Superior Court, ordering appellants to turn over to a levying officer 27 specific assets identified by appellants during their judgment debtor examinations to satisfy a debt owed to respondent Imperial Bank (Bank). 1 Appel...
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*533 Opinion In this case we hold that when a criminal defendant could have raised an issue in a previous appeal but did not do so, the defendant may be deemed to have waived the right to raise the issue in a subsequent appeal, absent a showing of good cause or justification for the delay. Since we perceive no reasonable basis for the failure to raise a sentencing issue advanced for the first...
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Opinion The prosecution appeals from a judgment of conviction following a guilty plea by defendant and respondent Andrew Ramirez to *562 residential burglary and his admission of a prior serious felony conviction within the meaning of Penal Code 1 section 667, subdivision (a) and subdivisions (b) through (i). We are asked to determine the appropriate sentence of a ...
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33 Cal.App.4th 592 (1995) 39 Cal. Rptr.2d 470 Estate of JOHN GALLIO, JR., Deceased. HELEN M. GALLIO, as Executor, etc., Petitioner and Respondent, v. GLORIA CONIGLIARO et al., Objectors and Appellants. Docket No. B081175. Court of Appeals of California, Second District, Division Six. March 28, 1995. *594 COUNSEL Lowthorp, Richards, McMillan, Miller, Conway & Templeman and Patrick T. Loughman ...
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Opinion Defendant Randy A. Ireland was charged by complaint in municipal court with misdemeanor offenses of driving under the influence of *685 alcohol (Veh. Code, §23152, subd. (a)), 1 and driving with .08 percent or more, by weight, of alcohol in his blood (§ 23152, subd. (b)). The jury found defendant guilty on the section 23152, subdivision (b) count, but ...
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Opinion Defendant was charged by amended information as follows: counts I and II—separate incidents of forcible rape (Pen. Code, §261, subd. (a)(2)) 1 and count III—attempted forcible oral copulation (§§ 288a, subd. (c), 664). It was further alleged as to each count that defendant had been convicted of and served prison terms for two prior sex offenses (§ 667.6, subd. (b)) and ...
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Opinion Frank S. Zolin, as Director of the Department of Motor Vehicles (DMV), appeals from a judgment granting respondent Jeffrey Scott Gananian’s petition for writ of mandamus. The writ directs the DMV to set aside its suspension of Gananian’s driving privilege for driving with an illegal blood-alcohol concentration (BAC). The DMV contends that substantial evidence does not support the ...
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Opinion In this case, we hold that a hotel has no duty to warn its guests of a dangerous condition of adjacent property over which the hotel has no control, to wit, the ocean currents. Petitioner Princess Hotels International, Inc. (Princess) is a defendant in an action for personal injuries and wrongful death brought by real parties Linda L. Pearson and the estate of her deceased former husb...
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Opinion Appellant Barbara Lurie Marino sought to enforce and modify a New York child support order in California pursuant to the Uniform Reciprocal Enforcement of Support Act, Family Code section 4800 et seq. Under New York law, parents must support their children until the children turn 21, while in California the obligation ends at age 18. The family law court ruled that California’s age of maj...
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Opinion This petition for writ of mandate challenges decisions by the San Mateo County Municipal and Superior Courts refusing to stay the municipal court trial of Scott Anthony Ellis pending his appeal to the appellate department of the superior court from denial of his Penal Code *655 section 1538.5 1 suppression motion. Appeal is the only pretrial remedy for an e...
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Opinion In this appeal and cross-appeal we consider challenges to the statutory and regulatory scheme establishing and governing the San Joaquin Valley Quality Cotton District (the district). (Food & Agr. Code, § 52851 et seq.) 1 The challenging plaintiffs are growers and breeders of cotton and the defendants are the director of the Department of Food and Agriculture, the San J...
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Opinion Phillip Vega appeals from the judgment entered on a jury verdict convicting him of inflicting corporal injury in violation of Penal Code section 273.5, subdivision (a). 1 The trial court imposed the three-year middle prison term and ordered him to pay a $200 restitution fine pursuant to former Government Code section 13967. Appellant raises four issues on appeal: (1) is...
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Opinion In this case, we deal with one of the important implications of the Supreme Court’s most recent decision on a liability insurer’s duty of defense. In Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287 [24 Cal.Rptr.2d 467, 861 P.2d 1153] (Montrose I), the court recognized that a liability insurer’s duty to defend arises upon tender ...
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Opinion A jury convicted Fernando Salazar of two crimes against Maria G.: (1) kidnapping for sexual purposes (Pen. Code, 2 § 208, subd. (d)) and (2) assault with intent to commit rape (§ 220). With respect to the assault count, the jury found true an allegation that Salazar kidnapped Maria for the purpose of committing the sexual offense. (§ 667.8, subd. (a).) The jury also convicted Salaza...
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Opinion Petitioner Marcy A. Shaffer (Shaffer), who is not a party to the underlying malpractice action, petitions this court for a writ of mandate directing the respondent trial court to vacate its order of August 12, 1994, ordering Shaffer to disclose the hourly rate she was paid as a contract staff attorney by the law firm of Gibson, Dunn & Crutcher (defendant) while working on defendan...
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Opinion On December 31, 1986, John Mgrdichian (Mgrdichian), a member of the board of directors (Board) of the California Commerce Club, Inc. (Corporation), purchased 200 shares, 14 percent of the outstanding shares, of Corporation stock from fellow Board member Herbert Stem (Stem). This purchase brought Mgrdichian’s holdings to 330 shares, 23 percent of the issued and outstanding shares o...
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Opinion This is an appeal from a summary judgment ordering the California Department of Food and Agriculture (the Department) to return service charges collected from the respondent airlines and enjoining the Department from collecting such charges in the future. Introduction The service charges were levied pursuant to the California Airport and Maritime Plant Quarantine, Inspec...
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Opinion Thomas L. Gooch appeals the judgment on his conviction of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)). *1006 On April 12,1993, San Diego Police Officer Spear detained Gooch after observing him driving a pickup with expired license tags. After Gooch told Spear his driver’s license was suspended, the officer arrested Gooch for driving without ...
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*1112 Opinion The case before us presents a unique and difficult question. Two men assert a parental interest in a child, and while both have a basis for their claim, the law allows for only one legal father. Matthew S. contends that the trial court erred in refusing to apply former Evidence Code section 621, subdivision (a) 1 , conclusively presuming him to be the father of the minor child...
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Opinion Plaintiff and appellant Axel Belio (Belio) appeals a judgment following a grant of summary adjudication in favor of defendant and respondent Panorama Optics, Inc. (Panorama). The issue presented is whether Panorama properly negated Belio’s action for involuntary dissolution of the corporation. We conclude Belio is not entitled to involuntary dissolution pursuant to Corpo...
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33 Cal.App.4th 1087 (1995) 39 Cal. Rptr.2d 530 THE PEOPLE, Plaintiff and Respondent, v. KIMBERLY JANICE JONES, Defendant and Appellant. Docket No. H011998. Court of Appeals of California, Sixth District. March 31, 1995. *1088 COUNSEL Robert Spertus, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorn...
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33 Cal.App.4th 1052 (1995) 39 Cal. Rptr.2d 396 WHITTIER REDEVELOPMENT AGENCY, Plaintiff and Appellant, v. OCEANIC ARTS et al., Defendants and Respondents. Docket No. B085788. Court of Appeals of California, Second District, Division Seven. March 30, 1995. *1054 COUNSEL Rutan & Tucker, Jeffrey M. Oderman, Philip D. Kohn and A. Patrick Munoz for Plaintiff and Appellant. Sullivan, Workman & Dee, Hen...
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*241Opinion The administrator of an estate operates a business owned by the decedent. Here we hold that the administrator’s fees are calculated upon the net receipts, not the gross receipts of the business. Philip A. Larry, administrator of the estate of Maria Luisa Sanchez, deceased, appeals an order of the probate court settling the third and final account and allowing compensation for ordinary ...
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Opinion In this case we are asked to determine whether an employee’s injury, which occurred while she was practicing at home to pass one of the protocols in an annual physical fitness test given by her employer, is compensable under this state’s workers’ compensation laws. We conclude the employee’s subjective belief, that as a condition of her employment, she was requried to practice for...
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Opinion I Introduction Although the statute does not define the term, Penal Code section 422 requires that the defendant’s threat cause the victim to be in “sustained fear.” *1151 In this case, the defendant threatened to kill the victim and her daughter while pointing a gun at the victim. The victim telephoned the police, who arrested the defendant in approximately 15 minutes. We hold th...
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*1121 Opinion Statement of the Case By amended information filed on October 21, 1992, defendant Mark Steven Garcia was charged as follows: rape by a foreign object and lewd act upon a child, Danielle M., on and between October 1, 1991, and December Í3, 1991 (counts I and II; Pen. Code, 1 §§ 289, subds. (a) through (j) and 288, subd. (a), respectively); lewd act upon a child, Sandra M., on...
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Opinion [[]] * Plaintiff appeals from the judgment entered after the trial court sustained defendant’s demurrer to Plaintiff’s complaint without leave to amend. [[]]* Procedural Background (E012417) On April 16, 1992, Plaintiff initiated this action against Devendrá Singh Narula, personal representative of the estate of Manjit Singh, deceased *1143 (Defendant). 1 Following Defendant’s...
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Opinion This is an action for a refund of California corporation franchise taxes paid by Willamette Industries, Inc., an Oregon corporation, *1244 for income year 1977. The question before this court concerns the proper tax treatment of dividends paid to Willamette by two subsidiary corporations. Facts The facts are undisputed. Plaintiff Willamette Industries, Inc.,...
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Opinion A jury convicted appellant of second degree murder (Pen. Code,1 § 187) and found true a personal use of a firearm allegation (§ 12022.5, subd. (a)). Appellant was sentenced to state prison for 20 years to life. Appellant contends (1) it was error to admit the preliminary hearing testimony of Gwendolyn Davidson because the prosecution failed to exercise reasonable diligence to procure her ...
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*1225 Opinion This mandate proceeding presents the question of law whether the statute of limitations provided in Penal Code section 803, subdivision (g) (effective January 1, 1994) may revive and extend the statutory limitations period which was in effect when the charged sex offenses were allegedly committed but which expired prior to the effective date of section 803, subdivis...
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Opinion I Brianna and her sister Chelsea were declared dependents of the juvenile court in 1992, a few months after Chelsea was bom suffering from cocaine addiction. The children were placed with their maternal grandmother. The case progressed to a 12-month review in August 1993. At the time the children’s father, Guillermo G., was incarcerated in the Orange County jail. At the heari...
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*1160 Opinion Robin V., the father of Destiny V., petitions for a writ of mandate under the newly enacted procedures. 1 We grant the petition, noting this case presents a classic example of the need for immediate appellate relief from an erroneous order, the harm of which can only increase the longer it remains uncorrected. *1161 I Destiny V. was bom...
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Opinion In this mandamus proceeding, we decide a venue question where an individual is joined as a defendant on an alter ego theory in a breach of contract action against a corporation. May the individual defendant transfer the action to the county of his or her residence when the action has been properly laid in a different county as to the corporate defendant? We decide for the purposes...
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*1411 Opinion Defendants and appellants Andrew Lee Howard and James Joshua appeal the judgments entered following their convictions of conspiracy to purchase cocaine for sale and unlawful possession of moneys in excess of $100,000. (Pen. Code, § 182, subd. (a)(1); Health & Saf. Code, §§ 11351, 11370.6.) 1 The trial court found both defendants had conspired to purchas...
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*1486Opinion Charles L. Freiberg attempts to appeal the judgment of nonsuit entered against him as to the City of Mission Viejo, contending there was evidence from which the jury could have found Mission Viejo liable. Mission Viejo moved to dismiss the appeal as untimely. We grant the motion and dismiss. Because we find the appeal was not timely, only a brief summary of the facts is necessary. Fre...
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Opinion In this case we hold that approval of informality in conducting hearings and trials in district attorney support and marital dissolution cases *1424 does not include resolution of disputed factual issues based upon mere statements of counsel or parties. Informality in the conduct of such hearings and trials is encouraged to expedite the proceedings while minimizing pe...
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Opinion Food and Agricultural Code section 56707 1 requires the Director of the Department of Food and Agriculture (the Director) to pay compensation out of a specified fund to farm products creditors who suffer losses when a licensed processor, broker, merchant, reseller, or dealer defaults on its obligations. Section 56708 places a ceiling on the amount of such payments. Appe...
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*1447 Opinion Introduction Under Health and Safety Code section 11370.4, subdivision (a), 1 a person convicted of certain drug offenses must receive a sentence enhancement based on the weight of the drug involved. The enhancement, an additional prison term ranging from three to twenty-five years, increases at specified intervals as the weight of the drug increases. In the trial court, p...
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33 Cal.App.4th 1429 (1995) 39 Cal. Rptr.2d 791 DENNIS R. CARROLL, Plaintiff and Appellant, v. IMPORT MOTORS, INC., et al., Defendants and Appellants; BMW CREDIT CORPORATION et al., Defendants and Respondents. Docket No. A062754. Court of Appeals of California, First District, Division Two. April 7, 1995. *1431 COUNSEL Georgia Ann Michell for Plaintiff and Appellant. Dean Christopherson for Defend...
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Opinion I. Introduction Yayehyerade Bekele appeals from a judgment of conviction for armed robbery, assault with a firearm, and related offenses. We hold there was substantial evidence of armed robbery of a property owner’s companion where the companion had implied authority to help stop a theft in progress, but there was no substantial evidence of assault with a firearm because there was no ...
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Opinion Appellant, Miguel Angel Gonzalez, was convicted by a jury of two counts of assault with intent to commit unlawful oral copulation (Pen. Code, §§ 220, 288a, subd. (c)) and one count of assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). The jury found that appellant used a deadly weapon in the commission of ...
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*1475 Opinion Paul J. Burchett and Doreen A. Burchett appeal the dismissal of their complaint after the court (1) sustained without leave to amend the demurrer of City of Newport Beach (City) and Bob Wynn, city manager, and (2) granted motions to quash service by certain specially appearing City officials and department heads. The Burchetts sought $8.7 million in damages for the ...
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Opinion Defendant, Lawrence Hatcher, appeals after a guilty plea to a narcotics charge and his admission he had previously been convicted of serious felony. (Pen. Code, § 667, subds. (b)-(i).) In the published portion of this opinion, we hold that the use of a serious prior conviction committed prior to March 7, 1994, to enhance defendant’s sentence did not violate the ex post facto provisions ...
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Opinion Plaintiff Alfred O. Couch worked as a campus security officer, or “monitor,” at Rio Americano High School in Carmichael. On arriving at work on the morning of February 28, 1992, he was shown a portion of an article in that day’s edition of the school newspaper. He concluded, without reading the rest of the article, that it accused him of being, among other things, a murderer and a...
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Opinion I. Introduction Robert and Pamela Morton brought this strict products liability action against Owens-Coming Fiberglas Corporation (OCF) and others for damages arising from Mr. Morton’s exposure to asbestos containing products and his consequent development of mesothelioma, an asbestos-caused form of cancer. Although Mr. Morton died before the trial was complete, OCF was ultim...
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I reluctantly concur in the result. I agree generally with the substance of the lead opinion, which is that the identity of petitioner's "assistant" is discoverable and petitioner has failed to provide sufficient information to permit this court to ascertain that there is a real threat of improper retaliation to her source. While the identity of petitioner's "assistant" is not itself relevant to ...
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*1581 Opinion The minor, aged 12 at the time of the offense, was charged in a wardship petition filed with the juvenile court of one count of assault with a deadly weapon in violation of Penal Code 1 section 245, subdivision (a)(1). It was further alleged that the minor inflicted great bodily injury on the victim. The adjudication hearing commenced on May 25,1994. On May 26,1994, the pros...
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Opinion In this case of first impression, we consider whether Civil Code section 3051 or 3080 et seq. 1 governs a dispute involving a veterinary lien for services rendered to a horse. I The facts are not in dispute. We therefore summarily discuss them as background for the underlying issue. In February 1994, a blood-bay horse, owned by Frank and Tara Jakubaitis, was a...
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Opinion We are ordered to vacate our decision of October 26, 1994, and to reconsider the cause in light of People v. Rayford (1994) 9 Cal.4th 1 [36 Cal.Rptr.2d 317, 884 P.2d 1369]. Appellant Leonard Smith appeals from a judgment entered after a jury convicted him of counts 1 and 2 for forcible rape (Pen. Code, § 261, subd. *1591 (a)(2)), 1 ...
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Opinion In this case, we will hold that the regional welfare doctrine adopted by our Supreme Court in Associated Home Builders etc. *1673 Inc. v. City of Livermore (1976) 18 Cal.3d 582 [135 Cal.Rptr. 41, 557 P.2d 473, 92 A.L.R.3d 1038] (Livermore), as a limit on a city’s power to make land-use decisions, does not apply to and cannot be used to challen...
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Opinion Petitioner PH II, Inc., seeks a writ of mandate to compel respondent superior court to set aside its order sustaining a demurrer to portions of two causes of action. We do not reach the merits but resolve this matter on a procedural issue after supplemental briefing by the parties. We affirm the rule that a party may not demur to a portion of a cause of action (Grieves ...
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Opinion I. Introduction Terrell Javon Reed is a “second strike” defendant under California’s new “Three Strikes” law: he has been convicted of robbery (his second strike), and he has a prior conviction for residential burglary (his first strike). He contends the court erred in employing the Three Strikes law to impose twice the base term for the robbery because his first strike preda...
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Opinion Defendant and appellant Alberto Valdez 1 appeals from a judgment of conviction following a certified guilty plea in municipal court to the sale of cocaine and an admission of a prior narcotics-related conviction. Defendant contends the superior court acted in excess of its jurisdiction *1636 when it denied his motion to withdraw his guilty plea, instead of ...
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Opinion In these proceedings, the members of the San Diego County Board of Supervisors seek a writ of review directing the respondent *1729 superior court to vacate its order issued August 29, 1994, adjudging the board members to be in contempt of court and imposing fines for willful disobedience of a consent decree arising out of a jail crowding lawsuit. 1 The trial court also held in cont...
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Opinion The City of Long Beach, the Long Beach Harbor Department, and the Long Beach Board of Harbor Commissioners (collectively the City) appeal a judgment entered after a jury trial ordering the City to pay $913,425 in damages to Leland R. Hill for breach of contract. Leland R. Hill cross-appeals the sustaining of the demurrers of the City and the individual defendants to his noncontrac...
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33 Cal.App.4th 1613 (1995) 39 Cal. Rptr.2d 806 JUDY A. FERGUSON, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and RALEY'S SUPERMARKETS, Respondents. Docket No. A063246. Court of Appeals of California, First District, Division Two. April 13, 1995. *1616 COUNSEL Mark E. Gearheart for Petitioner. William B. Donohoe, Joseph J. D'Andre, Mark R. Lippman and Mark R. Peterson for Respondents. OPINI...
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Opinion In this case we have explored the difficult question of the extent to which a police officer may rely upon computer-generated data furnished by the judicial system in carrying out searches and seizures. We conclude, consistent with the recent announcement by the United States Supreme Court in Arizona v. Evans (1995) 514 U.S._[131 L.Ed.2d 34, 115 S.Ct. 1185], 1 that where errors ex...
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Opinion In April 1992, the chair of surgery informed a female physician she would have to leave the school’s residency program by June *1713 1993 if she did not repeat her third clinical year of training. The physician did not repeat the year. She filed an administrative claim in July 1993 and sued the chairman and the school in August 1993 for sex discrimination. The questio...
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33 Cal.App.4th 1659 (1995) 40 Cal. Rptr.2d 49 THE PEOPLE, Plaintiff and Respondent, v. TROY PAUL RACKLEY, Defendant and Appellant. Docket No. H011451. Court of Appeals of California, Sixth District. April 13, 1995. *1661 COUNSEL Michael P. Thorman, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorne...
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Opinion RAMIREZ, P. J. Plaintiff Edward L. Taggart (Taggart), a police officer, was thrown from his motorcycle during training. Afterwards, he developed symptoms which were eventually diagnosed as epilepsy. Taggart and his wife Sarah (collectively plaintiffs) then filed this action against Super Seer Corporation (Super Seer), 1 the manufacturer of the helmet Taggart had bee...
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Opinion Johnette M. appeals an order of the juvenile court terminating her parental rights to her minor daughter, Tameka M. Johnette *1749contends the court erred by denying her competent representation by an attorney at the six-month review hearing preceding the termination hearing. She also contends there was insufficient evidence in support of the court’s findings at the six-month review heari...
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Opinion Plaintiff appeals from an order denying her permission to file a late tort claim against a governmental entity (Gov. Code, § 946.6). 1 Statement of the Case On December 8, 1993, plaintiff’s counsel prepared a claim for damages to be presented to the State Board of Control (Gov. Code, § 911.2). The claim alleged medical personnel of the California Correctional Ins...
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34 Cal.App.4th 65 (1995) 40 Cal. Rptr.2d 207 THE PEOPLE, Plaintiff and Respondent, v. JOHN THOMAS BRADY, Defendant and Appellant Docket No. D021274. Court of Appeals of California, Fourth District, Division One. April 18, 1995. *66 COUNSEL Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assist...
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*1816 Opinion In the trial court, plaintiff-employer successfully sought a preliminary injunction precluding defendant, a former employee, from using its trade secrets. However, the trial court denied the employer’s application for injunctive relief to enforce a covenant not to compete. Each party appeals. We conclude that the trial court properly declined to enforce the noncompe...
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Opinion A general partnership and its individual general partners, residents of Georgia, sued their insurance company for breach of contract and bad faith insurance practices for refusing to defend a federal *4 case brought in California. The insurance company, a Georgia corporation, obtained an order quashing service of process for lack of jurisdiction. We reverse the order,...
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Opinion Following a contested jurisdictional hearing, the juvenile court found that the minor Romeo C., along with co-accuseds James C. and Low Ching S., had committed a felony violation of Penal Code section 246 (unlawfully and maliciously discharging a firearm at an inhabited dwelling). 1 The court also found in enhancement that a principal in the offense was armed with a shotgun (§ 12022, ...
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*1830 Opinion In aworkers’ compensation proceeding, the workers’ compensation judge (WCJ) ruled that dependency, pursuant to Labor Code sections 3501 and 3502, could be determined as of “the date of last industrial exposure,” rather than “the date of injury” set forth in Labor Code section 5412. This ruling meant that dependency status could be determined so as to entitle adult, ...
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Opinion The sole issue is whether appellant, when he committed a battery against Officer Nagle, inflicted an injury upon Officer Nagle within the meaning of Penal Code 1 section 243, subdivision (c). We find substantial evidence of such injury and affirm the judgment. Procedural and Factual Background The charges against appellant were battery with injury upon Officer...
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Opinion After the Department of Consumer Affairs (Department) revoked his locksmith’s permit, plaintiff Sammy Lam filed a petition for writ of administrative mandamus (Code Civ. Proc., § 1094.5) to overturn the Department’s decision. The trial court denied his petition. On appeal, plaintiff contends the Department’s actions were barred by laches, and further suggests that revocation of hi...
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34 Cal.App.4th 73 (1995) 40 Cal. Rptr.2d 223 THE PEOPLE, Plaintiff and Respondent, v. MICHAEL C. HERNANDEZ, Defendant and Appellant. Docket No. F021341. Court of Appeals of California, Fifth District. April 20, 1995. *75 COUNSEL Robert D. Platt, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney G...
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Opinion We hold in this case that section 1989 of the Code of Civil Procedure means what it says—a witness is not obliged to appear in court in California unless he is a resident of the state at the time of service. 1 For this reason, a notice to attend trial and bring documents (§ 1987, subds. (b), (c)) served on the custodian of records of a nonresident party is void and unen...
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Opinion Defendant Charles Roland Stevens was charged by information with four counts of intercepting cordless telephone communications. *58 (Pen. Code, § 632.6, subd. (a).) 1 He pleaded nolo contendere to two of the counts. He appeals the judgment of conviction, contending that section 632.6 is invalid because the area is preempted by federal law. We affirm. ...
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Opinion At issue in this case is “whether a State may completely suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information’s effect upon its disseminators and its recipients.” (Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425 U.S. 748, 773 [48 L.Ed.2d 346, 365, 96 S.Ct. 1817].) We decide, as did the U...
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Opinion Resolution Trust Corporation, the receiver for HomeFed Bank, F.S.B., and 405 Hotel Associates appeal the judgment of nonsuit entered against them by the trial court, contending they established sufficient *98 proof of their causes of action for nuisance, trespass, and negligence against Rossmoor Corporation and LHC Associates. 1 We affirm. In July 1972...
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*119 Opinion Plaintiff and appellant Martin G. Laffer brought this action for intentional interference with economic relations, conspiracy, and intentional infliction of emotional distress, against the following defendants and respondents (who are a law firm and two of its partners and an associate attorney): Levinson, Miller, Jacobs & Phillips (hereafter LMJ&P), Steven B. Yankel...
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Opinion Introduction In these consolidated cases 1 plaintiffs Nyle G. Henderson and Diane Henderson and plaintiff Dianne Hollingshead, individually and as administrator of the estate of Raymond Styol Hollingshead, appeal following adverse summary judgments of the Humboldt County Superior Court finding plaintiffs’ claims preempted by the Employee Retirement Income Secur...
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Opinion Shawnn F., a minor, appeared before the juvenile court on two Welfare and Institutions Code section 602 petitions. After trial, the court found that Shawnn drove without a valid driver’s license and committed a battery. Shawnn claims in his appeal: (1) the juvenile court denied him the right to represent himself, (2) the “rule of convenience” does not apply to the burden of proof upon t...
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34 Cal.App.4th 200 (1995) 40 Cal. Rptr.2d 271 EDWARD GARDNER et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents. Docket No. B078619. Court of Appeals of California, Second District, Division Three. April 25, 1995. *204 COUNSEL Richard A. Rothschild, Robert D. Newman, Clare Pastore, Katherine E. Meiss, Paul Tepper, Lewis Hollman, Esther Epstein, Tim Whis...
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Opinion Warren Lemar Green II, also known as Warren Lee Green, appeals from a judgment entered following a jury trial in which he was convicted of unlawful driving of a vehicle (Veh. Code, § 10851, subd. (a), hereafter section 10851(a)) and a court trial in which it was found that he had suffered six prior felony convictions for which he served separate prison terms. He was found not guil...
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Opinion The Department of Motor Vehicles (DMV) provides 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 (BAC) of 0.08 percent or more). This form, which the officer forwards to the forensics laboratory ...
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Opinion Mohammad Haider was convicted by a jury of one count of selling or giving away cocaine. (Health & Saf. Code, § 11352.) The trial court found Haider was previously convicted of possession of a controlled substance. (Health & Saf. Code, §§ 11350, 11370, subds. (a) & (c).) Haider appeals from the judgment. *664 He contends (1) that the trial court erred in sustaining th...
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Opinion Two attorneys representing one party in litigation brought a defamation action against the opposing party based on statements he made in letters to his counsel and to the district attorney. The trial court found the alleged defamatory statements absolutely privileged and dismissed the attorneys’ complaint after sustaining defendant’s demurrer without leave to amend. We affirm. ...
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Opinion Appellant Alfonso Longines appeals from his conviction of sale of marijuana and use of a minor to sell marijuana. (Health & Saf. Code, §§ 11360, subd. (a), 11361, subd. (a).) We affirm. I. Factual Background Napa County Sheriff’s Deputy James Clark was working undercover on a drug investigation in St. Helena. A confidential informant introduced Deputy Clark to a min...
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Opinion Petitioner is the plaintiff in a superior court action against his former employer, the Regents of the University of California (Regents), and several individual defendants, alleging he was the victim of sexual harassment in violation of the Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.) 1 The individual defendants demurred to petitioner’s amended ...
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Opinion In October of 1984 Sherrie Spann received an infusion of more than 130 units of blood plasma and platelets as treatment for a life-threatening blood disease known as thrombotic thrombocytopenic purpura (TTP). Although the treatment regimen was apparently successful, Ms. Spann contracted human immunodeficiency virus (HIV) from the infused blood products; she died in May of 1990 fro...
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Opinion In this case, we uphold a defendant’s waiver of the right to appeal, given in the context of a plea bargain entered into after denial of a suppression motion. Because we conclude the waiver is effective, we shall dismiss the appeal. Factual and Procedural Summary The appellant, Charles K. Berkowitz, appeals after a conviction of attempted grand theft (Pen. Code, §§ 664/487, subd. (a...
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*697 Opinion Rodney Dorsey and Charles S. Hall appeal from jury convictions of second degree robbery and assault with force likely to produce great bodily injury. They contend that the trial court erred in denying a mistrial based on juror misconduct, and by refusing a requested jury instruction on grand theft as a lesser included offense of robbery. In addition, Dorsey claims sentencing erro...
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Opinion Debra Candiotti 1 appeals from an order, in a family law custody and visitation proceeding, restraining her from disseminating information to third parties about the background of her ex-husband Thomas’s present wife, Donna. The order spoke both to information obtained during discovery and to information independently acquired. We conclude, under *720 the c...
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34 Cal.App.4th 707 (1995) 40 Cal. Rptr.2d 391 THE PEOPLE, Plaintiff and Respondent, v. H. JOSHUA DAYAN, Defendant and Appellant. Docket No. H012265. Court of Appeals of California, Sixth District. April 28, 1995. *708 COUNSEL Philip H. Pennypacker for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorn...
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Opinion Defendant is imprisoned for life without possibility of parole after a jury trial involving two separate incidents: robberies and first degree felony murder with special circumstances at a Taco Bell restaurant on July 4, 1992, and robbery and attempted premeditated murder at a Gas and Food market on August 11, 1992. On appeal, defendant primarily challenges the joinder of the two ...
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Opinion This case comes to us following the trial court’s refusal to reconsider a default judgment entered against appellant. Although this court *742 must give deference to a trial court’s finding of fact (see generally, Dolan v. Buena Engineers, Inc. (1994) 24 Cal.App.4th 1500 [29 Cal.Rptr.2d 903]), we find the error in this case turns on a question of...
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Opinion A child walks on a hiking trail in a state park. Suddenly a mountain lion leaps out from the brush and mauls the child. May the child sue the state for his injuries? No. Government Code section 831.2 protects public entities and employees from liability for injuries caused by natural conditions on unimproved public property. Here we hold that mountain lions are part of the na...
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Opinion In this case, we are asked to decide whether a nonsettling defendant who opposes a good faith settlement motion is entitled to see the settlement agreement. We conclude a nonsettling defendant has a right to review the agreement notwithstanding the settlors’ protests that the confidential terms and contingencies do not affect the offset. The nonsettling defendant must be given an ...
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Opinion In this lawsuit, plaintiff challenges the new statutory procedure for contesting parking tickets. Two issues are presented: (1) May the contestant constitutionally be required to pay the parking penalty before an administrative hearing is held? (2) May the contestant lawfully be required to pay a fee of $25 to defray the costs of administrative review? Legal Background ...
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*176 Opinion The issue in this case is whether a misdemeanor hit-and-run charge (which by statute involves property damage only) is subject to disposition by way of a civil compromise. We hold that it is and thus decline to follow two appellate department decisions to the contrary, People v. McWhinney (1988) 206 Cal.App.3d Supp. 8 [254 Cal.Rptr. 205] and ...
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34 Cal.App.4th 986 (1995) 40 Cal. Rptr.2d 727 SANDRA TODD, Plaintiff and Respondent, v. THRIFTY CORPORATION, Defendant and Appellant. Docket No. B081426. Court of Appeals of California, Second District, Division One. April 6, 1995. *987 COUNSEL Haight, Brown & Bonesteel, Rita Gunasekaran and Brian J. Fields for Defendant and Appellant. Ellis & Kingston, Phillip M. Dezen and Howard Gertz for Plain...
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Opinion On January 22, 1989, San Francisco 49’ers quarterback Joe Montana led his team to a 20-16 come-from-behind victory against the Cincinnati Bengals in Super Bowl XXIII. The following day, the San Jose Mercury News (SJMN) ran a front page story chronicling the 49’ers’ feat and depicting four players, including Montana, celebrating on the field. The next year, the 49’ers were even more impr...
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34 Cal.App.4th 766 (1995) 40 Cal. Rptr.2d 633 THE PEOPLE, Plaintiff and Respondent, v. RICKY T. FOSTER, Defendant and Appellant. Docket No. F021241. Court of Appeals of California, Fifth District. May 1, 1995. *768 COUNSEL Jim Fahey, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robe...
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Opinion Defendant Swinerton & Walberg Company (Swinerton), a general contractor, appeals the judgment entered against it in a personal injury action brought by plaintiff Ralph Whitford (Whitford). The relevant facts are as follows: On April 28, 1989, Swinerton was the general contractor on the construction of a 52-floor high-rise building in downtown Los Angeles known as the Mitsui B...
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34 Cal.App.4th 1047 (1995) 40 Cal. Rptr.2d 680 WILLIAM ROSSE, Cross-complainant and Respondent, v. DeSOTO CAB COMPANY, Cross-defendant and Appellant. Docket No. A065749. Court of Appeals of California, First District, Division Two. May 4, 1995. *1048 COUNSEL Brekhus, Williams, Wester & Hall and Matthew D. Brekhus for Cross-defendant and Appellant. *1049 Stenberg, Sunseri, Roe & Pickard and Christ...
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Opinion A jury found Byron Summersville guilty of the second degree murder (Pen. Code, 1 § 187, subd. (a)) of Timothy Burke with personal knife use (§ 12022, subd. (b)) (count 1) and assault with a deadly weapon (§ 245, subd. (a)(1)) on Alberto Fox with personal knife use and personal infliction of great bodily injury (§ 12022.7) (count 2). The court sentenced him to twenty-three years to lif...
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Opinion This case presents the issue whether the coach portion of a motorhome is subject to the provisions of the Song-Beverly Consumer Warranty Act (Civ. Code, 2 § 1790 et seq.). We conclude it is. Facts In May 1990, Julius E. Foreman and his wife, Maxine I. Foreman, purchased a new 1990 Dolphin motorhome from 10,000 R.V. Sales for $56,905.41. National R.V., Inc., (N...
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34 Cal.App.4th 1025 (1995) 40 Cal. Rptr.2d 744 JOAN MEIGHAN, Plaintiff and Appellant, v. SAMUEL SHORE et al., Defendants and Respondents. Docket No. B073932. Court of Appeals of California, Second District, Division Four. May 4, 1995. *1029 COUNSEL Howard A. Kapp for Plaintiff and Appellant. Samuel Shore and James R. McGrath for Defendants and Respondents. OPINION EPSTEIN, Acting P.J. In this cas...
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Opinion Defendant Fadelli Concrete Pumping, Inc., was convicted in a court trial of violating Vehicle Code section 35551, which prohibits operating a vehicle over certain statutory weight limits without a permit. The municipal court imposed a fíne of $482. The People appealed, claiming that the applicable fine should have been in excess of $22,000, and that the municipal court had no disc...
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34 Cal.App.4th 1085 (1995) 40 Cal. Rptr.2d 700 BRITZ, INC., et al., Plaintiffs and Appellants, v. ALFA-LAVAL FOOD & DAIRY CO. et al., Defendants and Respondents. Docket No. F020306. Court of Appeals of California, Fifth District. May 8, 1995. *1090 COUNSEL Thomas E. Campagne, Cotkin & Collins, Joan M. Dolinski and Jeffrey L. Garland for Plaintiffs and Appellants. McCormick, Barstow, Shepp...
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Opinion Appellant Kirby Hudgins (hereafter appellant or Hudgins) seeks review of a judgment entered upon stipulated facts presented in connection with the parties’ cross-motions for summary judgment. After a long and tortuous series of proceedings—involving first an order granting appellant’s motion, then a mistaken issuance of an order granting the motion of respondent Neiman Marcus Grou...
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34 Cal.App.4th 1173 (1995) 40 Cal. Rptr.2d 714 MEIR NAVE, Plaintiff and Appellant, v. ANNETTE TAGGART et al., Defendants and Respondents. Docket No. F019626. Court of Appeals of California, Fifth District. May 9, 1995. *1174 COUNSEL Richard A. Hofman for Plaintiff and Appellant. Anderson, Ablon, Lewis & Gale and Farhad Kazemzadeh for Defendants and Respondents. OPINION BUCKLEY, J. — PROCEDURAL H...
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Opinion The principal issue presented by this appeal is whether a school district is precluded by section 48907 of the Education Code1 and article I, section 2 of the California Constitution, from requiring, on the ground of educational suitability, that a film arts class instructor have his students delete the profanity2 in a student-produced film. We hold that school authorities may restrain su...
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Opinion Appellant Nai Ian Saelee was convicted of various crimes, including first degree murder. Included in his sentence was a restitution fine under Government Code section 13967 in the amount of $10,000. We publish the brief portion of this opinion which addresses the ex post facto implications of Government Code section 13967 as applied to the circumstances of this case. Ultimately, w...
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Opinion The Department of Motor Vehicles (Department) suspended the driver’s license of appellant Gary Lynn Poland based upon a finding that he drove an automobile while possessing a blood-alcohol content (BAC) higher than 0.08 percent. The superior court denied appellant’s petition for a writ of mandate to set aside the suspension. Appellant challenges that order on numerous grounds. We find n...
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34 Cal.App.4th 1242 (1995) 40 Cal. Rptr.2d 576 NANCY J. SCHREIDEL, Plaintiff and Respondent, v. AMERICAN HONDA MOTOR CO., INC., Defendant and Appellant. Docket No. B075776. Court of Appeals of California, Second District, Division Three. April 3, 1995. *1245 COUNSEL Robert W. Beck for Defendant and Appellant. Alan R. Golden for Plaintiff and Respondent. OPINION ALDRICH, J. — INTRODUCTION Defenda...
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Opinion Defendant and appellant Ranger Insurance Company appeals after the trial court denied its motion to set aside a summary *1143 judgment on bail bond forfeiture and to exonerate the bail. We previously issued an opinion affirming the judgment, but Ranger brought to the court’s attention a change in the law, which became effective while the appeal was pending. We granted...
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Opinion Alan Ice, an off-duty Long Beach police officer, shot and nearly killed the driver of another vehicle following a heated verbal dispute over a trivial driving incident. The Long Beach Police Department terminated Ice’s employment on the grounds that Ice unnecessarily engaged in a traffic dispute that ultimately required police response; unnecessarily armed himself; and acted either negl...
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34 Cal.App.4th 1378 (1995) 41 Cal. Rptr.2d 63 ROBERT FLEMING, as Personal Representative, etc., et al., Plaintiffs and Appellants, v. THE STATE OF CALIFORNIA et al., Defendants and Respondents. Docket No. B074475. Court of Appeals of California, Second District, Division Two. May 10, 1995. *1380 COUNSEL Howrey & Simon, J. Michael Hennigan, John L. Amsden and Mary H. Chu for Plaintiffs and App...
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34 Cal.App.4th 1204 (1995) 40 Cal. Rptr.2d 734 HAND REHABILITATION CENTER et al., Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD and VONS COMPANIES, Respondents. Docket No. G016645. Court of Appeals of California, Fourth District, Division Three. April 21, 1995. *1207 COUNSEL O'Flaherty & Belgum and Robert M. Dato for Petitioners. Tharp & Adcock and Charles Adcock for Respondents. OPINION WA...
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Opinion This is an appeal from a judgment denying a claim for life insurance benefits from a company under conservatorship. We affirm. Facts and Proceedings Below In January 1989, First Capital Life Insurance Company (hereafter First Capital) issued a $500,000 policy on the life of Howard Newell, the president of Omnicor, Inc. The policy entered a late period November 26, 1991, for nonpayment of ...
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*1264 Opinion I. Statement of the Case Defendant Alexander Scott MacKenzie appeals from a judgment entered after a jury found him guilty of a “hate crime,” i.e., brandishing a firearm for the purpose of interfering with the civil rights of Michael Watts because of his race, color, ancestry, or national origin. (Pen. Code, §§ 417, subd. (a)(2), 422.7. 1 ) T...
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Opinion Petitioner City of Huntington Park (the City) seeks a writ of mandate which directs the respondent court to vacate its order on demurrer, which allows plaintiff Gadi Flores (Flores) to proceed with an action under 42 United States Code Annotated section 1983 (hereafter section 1983). Flores’s action was filed within one year of the time Flores obtained his majority, but more than a year...
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Opinion Introduction Appellant Marilyn Husted Green filed an action against State Center Community College District (respondent or District) for personal injuries. In this appeal we are confronted with the issue of whether the trial court erred in sustaining without leave to amend respondent’s demurrer to appellant’s second amended complaint for personal injuries based upon its finding that t...
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Opinion We hold that a contract termination notice from a school superintendent to a school assistant superintendent is invalid under Education Code 1 section 35031 if, prior to the notice, the governing board of the school district has not determined to terminate the assistant superintendent’s contract and has not authorized the termination notice. Accordingly, we reverse the ...
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Opinion Petitioner Karl S. seeks extraordinary writ relief (Welf. & Inst. Code 1 , § 366.26, subd. (l); Cal. Rules of Court, rule 39.1B (rule 39.IB)) from respondent court’s order that a section 366.26 hearing be held on May 17, 1995. He challenges the juvenile court’s finding, subsumed within the order, that reasonable efforts were made to reunite him with his child, Anthony S...
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Opinion Wesley Keat, a Riverside County deputy sheriff, appeals from a judgment entered against him on claims made pursuant to 42 United States Code section 1983 (section 1983) for compensatory and punitive damages, and from a postjudgment order awarding attorney fees. We affirm. Factual and Procedural Background At approximately 6 p.m. on November 8, 1985, Keat was on patrol wh...
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Opinion Appellants Devin Feagin and Terrill Ross appeal from the judgment entered following their convictions by jury trial of murder (Pen. Code, § 187). As to Feagin, the jury found true the special circumstance allegations of first degree residential robbery and burglary, within the meaning of Penal Code section 190.2, subdivision (a)(17). In addition, both appellants suffered convictions for...
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34 Cal.App.4th 1499 (1995) 40 Cal. Rptr.2d 822 THE PEOPLE, Plaintiff and Respondent, v. BONSET SOUN, Defendant and Appellant. Docket No. H010766. Court of Appeals of California, Sixth District. May 12, 1995. *1505 COUNSEL Michael A. Kresser, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney Gener...
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*1443 Opinion Red Bluff’s fire chief is not a peace officer. In this case we construe provisions of the Public Safety Officers Procedural Bill of Rights Act (the Act) (Gov. Code, § 3300 et seq.; further unspecified section references are to the Government Code). At issue is the interplay between provisions of the Act which define those persons entitled to its protections and provisions of t...
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Opinion The defendant, John David Hull, stole stereo speakers from a vehicle. The vehicle, however, had been placed on the street as bait by the Roseville Police Department, and the speakers contained a tracking device and were covered with powder visible in ultraviolet light. Within minutes of the burglary, the officer followed the tracking device signal to a residence, entered the residence w...
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Opinion In this dog attack case we conclude the injured plaintiff raised a triable issue whether defendant landlord knew about the vicious propensities of his tenant’s two rottweilers. The landlord filed a declaration denying he possessed this knowledge. We hold plaintiff introduced sufficient evidence casting doubt on the landlord’s credibility to create a triable issue whether he did kn...
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Opinion The trial court dismissed plaintiff Timothy P. Peltier’s personal injury suit for failure to bring the case to trial within three years (Code Civ. Proc., § 583.410; all further undesignated section references are to this code). He moved for relief under section 473, asserting that his attorney’s decision not to move the case forward until plaintiff’s condition had stabilized const...
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Opinion In January 1989, Residents for Adequate Water and respondents Michael E. Sweeney and Oliver L. Sause obtained a writ of mandate halting the connection of new residential water service by appellant Redwood Valley County Water District. In July 1993, the district unsuccessfully moved to dissolve the writ of mandate and to set aside the subsequent judgment. (Code Civ. Proc., § 473.) ...
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Opinion Petitioner Ronald S., the father of the minor Dylan H., has filed a petition for extraordinary relief pursuant to Welfare and Institutions Code section 366.26, subdivision (l) (referred to hereafter as section 366.26). Petitioner raises no substantive issues but requests this court to provide guidance to trial counsel who find no arguable claims to be raised by the petition for writ rel...
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34 Cal.App.4th 1527 (1995) 41 Cal. Rptr.2d 104 DONALD L. BUEHLER, Plaintiff and Appellant, v. ROBERT SBARDELLATI, Defendant and Respondent. Docket No. D017900. Court of Appeals of California, Fourth District, Division One. May 19, 1995. *1531 COUNSEL Mazzarella, Dunwoody, Wilson & Petty, Mark C. Mazzarella and Joe B. Stansell for Plaintiff and Appellant. Butz, Lucas, Dunn & Enright, Dougl...
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Opinion The California Horse Racing Board (Board) upheld the exclusion of a gambler from all racetracks in California, although his *1828 misdemeanor bookmaking conviction was by plea of nolo contendere and was expunged after a period of probation. The superior court denied the gambler relief on other grounds, but we conclude the Board acted properly in excluding him as a con...
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*3 Opinion Jesse Barnett was convicted of second degree burglary (Pen. Code, § 459) and theft of items with a value in excess of $400. (Pen. Code, § 487.1.) An allegation that Barnett had suffered a prior conviction was found true. The trial court sentenced Barnett to a total of three years in state prison, further imposing on him a $200 restitution fine. The court, however, then...
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Opinion Appellant Joseph Bellizzi contends the trial court erred in denying his motion to suppress evidence, in this prosecution for possession of cocaine for purposes of sale. (Health & Saf. Code, § 11351.) We conclude the trial court wrongly found exigent circumstances supported the legality of the warrantless search. We, therefore, reverse. I. Facts and Procedural History App...
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Opinion We hold, in the published portion of this opinion, that a potential creditor with actual notice of the pendency of estate proceedings cannot excuse the untimely filing of a creditor’s claim on the ground that the administrator failed to send a formal notice of administration of the estate, as required by Probate Code section 9050. 1 Daniel S. Venturi (hereinafter appe...
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Opinion The City of Fremont filed a petition for a writ of mandate and administrative mandamus challenging a decision by the San Francisco Bay Area Rapid Transit District (BART) to certify a final environmental impact report (EIR) which was prepared in connection with BART’s plan to extend one of its transit lines. Fremont opposed the project because part of the extension would run on ele...
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Opinion Introduction This breach of contract action by a policyholder against its insurance company raises the following question. When an employee embezzles funds from an employer over a period of years during which the employer carries insurance against employee dishonesty from the same insurer, may the employer recover up to the insurer’s limit of liability for each year in which the embezzlem...
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Opinion Appellant Maurice Desi Font was tried with codefendants Glover and Hines for second degree robbery (Pen. Code, 1 § 211). A jury convicted appellant and found true a firearm allegation (§ 12022, subd. (a)(1)) but was unable to reach verdicts regarding codefendants Glover and Hines. 2 Appellant contends the prosecutor committed Griffin (Griffin v. ...
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Opinion The trial court granted a judgment on the pleadings, declaring certain ordinances of the City of Escondido (the City) to be facially valid, in the City’s complaint in intervention in an underlying action *36 between plaintiff Mobilepark West Homeowners Association (the residents) against their landlord, Escondido Mobilepark West and Charles E. Jacobson (the owners). T...
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Opinion Defendants, FSR Brokerage, Inc., doing business as Fred Sands Realtors (Sands), Prichett Realty Corp. (Prichett), and Gary Marquis, seek a writ of mandate to compel the respondent court to enter summary judgment on consolidated personal injury and wrongful death complaints of 36 plaintiffs. The consolidated complaints were filed as a result of the collapse of a balcony on an oceanfront re...
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Opinion This is an appeal by a custodial parent, wife Vera Roberts Perez, from an order reducing money in arrears and waiving interest due as to the child support obligation of the absentee parent, husband Richard Joseph Perez. Since the court acted in excess of its jurisdiction in reducing from $5,000 to $2,000 the balance owed and in eliminating the statutorily required interest on the unpaid...
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Opinion Plaintiffs and appellants Operating Engineers Pension Trust, Operating Engineers Health and Welfare Fund, Operating Engineers Vacation-Holiday Savings Trust and Operating Engineers Training Trust (the Trusts) appeal a judgment following a grant of summary judgment in favor of defendant and respondent Insurance Company of the West (West). The Trusts seek to collect on certain ...
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Opinion Nadine S. appeals from the order terminating her parental rights (Welf. & Inst. Code, § 366.26) to Pedro N. and Margie N.1 Claiming her children came within the ambit of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), she contends respondent Fresno County Department of Social Services (Department) gave inadequate notice to the proper authorities as required by the ICWA. Co...
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Opinion State Farm Mutual Automobile Insurance Company (State Farm) appeals from an order granting a motion by St. Paul Fire and Marine Insurance Company (St. Paul) to tax costs incurred by State Farm as the successful appellant in a prior appeal (Ramirez v. State Farm * (Cal.App.)), and from a subsequent judgment directing in part that State Farm should recover its costs entirely from on...
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Opinion Defendant, Byron James Wilder, appeals his dmg conviction and findings concerning enhancements imposed because of his substantial prior record of criminality. In the published portion of this opinion, we conclude that the trial court’s failure to advise defendant, who represented himself at trial, of the disadvantages of self-representation where the waiver of counsel was voluntar...
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Opinion In this habeas corpus proceeding we review a decision of the Board of Prison Terms rescinding a life prisoner’s parole. *163 I. Background A. Petitioner Chester Johnson was convicted of the first degree murders of Loren Silliphant and Dr. Glen Olsen in 1970 and was sentenced to death. The sentence was later modified to life imprisonment. Those familiar...
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Opinion Lisa A. Jensen sued BMW of North America, Inc., for willful violation of the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.) 1 and the Magnuson-Moss Warranty Act (15 U.S.C. § 2301 et seq.). She alleged the low-mileage 1988 BMW she leased in 1989 was subject to the manufacturer’s new car warranty, but BMW refused to replace the vehicle or refund her money ...
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Opinion —A jury convicted appellant, Kamal Matian, of sexual battery by restraint, felony false imprisonment and genital penetration with a *483foreign object. Appellant appeals his convictions contending: (1) The trial court erred in denying his motion for new trial based on the introduction of false evidence at trial and the prosecution’s withholding of material evidence; (2) insufficient evide...
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Opinion Joseph Levesque appeals his convictions of violating Penal Code section 288, subdivision (a), 1 (count one) and section 647.6 (count two). The court also found true allegations of a prior section 288, subdivision (a) conviction and prior felony convictions for rape and burglary. Pursuant to section 667.51, subdivision (d) the court sentenced appellant to imprisonment fo...
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Opinion This construction defect case presents the following issue: is a cross-defendant who settles with a cross-complainant, but not the plaintiff, entitled to a determination under Code of Civil Procedure section 877.6 1 that the settlement was in good faith? Yes. *552 I The operative facts are undisputed. Villa Mira Homeowners Association owns a 212-unit ...
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Opinion The superior court rendered a judgment granting a petition for writ of mandate directing the Department of Motor Vehicles (hereafter, DMV) to set aside an order revoking Manuel E. Villalobos’s driving privileges following Villalobos’s arrest for driving under the influence of alcohol. It reasoned that Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753 [280 Cal.Rptr. 745, 80...
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*566Opinion Appellant Vue Pao Yang was insured by respondent State Farm Mutual Automobile Insurance Company. State Farm brought a declaratory relief action against Yang and sought an adjudication that Yang was not covered by the “Uninsured Motor Vehicle” and “Medical Payments” coverages of his State Farm automobile insurance policy for damages he suffered as a result of being shot by a gunman who...
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Opinion Introduction Plaintiff Ford Motor Company appeals from an order to dismiss entered after defendants’ motions to dismiss on the ground of forum non conveniens were granted. Procedural and Factual Background At approximately the same time, in November 1992, plaintiff filed four actions in which it sought to establish its right to insurance coverage for liabilities ari...
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Opinion Plaintiffs appeal from a summary judgment disposing of their claims against defendant employer for wrongful termination of employment. They also seek reversal of an order compelling them to return certain documents to defendant. We affirm the judgment and the order. *626 Background In 1983, plaintiffs Kendra and Ronald Camp, husband and wife, were indicted on se...
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Opinion Ralph Helmut Nitschmann has led a life of crime. The probation report shows a 20-year history of offenses not counting his “lengthy juvenile criminal history.” We count 17 separate adult arrests. Based on his prior contacts with law enforcement, television, or other sources, appellant has committed the basic rules of Miranda (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 8...
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Opinion Donald Wayne Jenkins appeals from a trial court finding that he is a mentally disordered offender (MDO) within the meaning of Penal Code section 2962. 1 We affirm and reject appellant’s argument that the MDO statutory scheme, as applied, violates the ex post facto clauses of the federal and state constitutions. We explain the differences between date of enactment, effective date and o...
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Opinion Anthony Howard Brown appeals his conviction of second degree murder, contending (1) his Miranda 2 rights were violated, (2) the court erred in admitting graphic photos of the victim, and (3) he was denied due process because the jury was not required to unanimously agree on its theory of malice. We affirm. I Brown and his girlfriend Roxann Moralez resided in a...
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Opinion The California Department of Motor Vehicles (DMV) and its director, Frank S. Zolin, appeal a judgment granting respondents a permanent injunction requiring the DMV to issue new and renewal vehicle registrations and renewal drivers’ licenses and identification (ID) cards to aliens who are ineligible for a Social Security account number (SSN). 1 Facts With the exce...
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35 Cal.App.4th 685 (1995) 41 Cal. Rptr.2d 314 THE PEOPLE, Plaintiff and Respondent, v. KENNETH LUIS SURDI, Defendant and Appellant. Docket No. G015755. Court of Appeals of California, Fourth District, Division Three. May 31, 1995. *686 COUNSEL Handy Horiye, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistan...
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Opinion I. Introduction Defendant, Erick Alejandro Avila, appeals from his conviction of: the forcible rape of Jacqueline M. (Pen. Code, § 261, subd. (a)(2)); 1 the kidnapping with intent to rape Jacqueline M. (§ 208, subd. (d)); 2 and the forcible rape of a second victim. With respect to the forcible rape of Jacqueline M., the jury found to be true the special ...
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*590 Opinion This case involves the application of Penal Code section 667, subdivisions (b) to (i), 1 popularly known as the “Three Strikes Law,” which was enacted as emergency legislation and became effective March 7, 1994. 2 Defendant appeals from the judgment, contending the imposition of the five-year enhancement for a prior serious felony conviction und...
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Opinion A party in a personal injury action intends to have her treating doctor testify as to her injuries, treatment, and prognosis. Must she provide opposing counsel an expert witness declaration required by Code of Civil Procedure section 2034, subdivision (a)(2) for retained experts? 1 No. A treating doctor is not a retained expert for purposes of section 2034. Pl...
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Opinion Ronald L. Saathoff appeals from a judgment in favor of the City of San Diego et al., (hereafter the City or City Council) arising from the trial court’s denial of his petition for writ of mandate. Saathoff asserted in his writ of mandate petition that the City Council’s passage of a resolution based on a majority vote, awarding a paramedic system management contract to American Me...
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Opinion Robert Francis Corey appeals from the judgment (order granting probation) entered following a jury trial which resulted in his conviction of selling an unqualified, unexempt security (Corp. Code, § 25110) and selling a security by means of false statements or omissions (Corp. Code, § 25401). 1 Appellant contends that the trial court committed several instructional error...
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Opinion I. Introduction The complaint alleged a conspiracy between an insurer and a psychiatrist to deprive the plaintiff, Robert A. Villa, of disability benefits. In November *736 1993, the trial court entered a summary judgment in favor of defendant, Dr. Glen McFerren, a psychiatrist. Plaintiff appealed. We conclude defendant, in his moving papers, did not meet his bur...
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Opinion This appeal arises from the construction of the Villa Mallorcas condominium project (Project) in the late 1970’s. The ensuing construction defect litigation began in 1984 and continued in various forms over the next decade, culminating in this appeal. 2 The remaining parties include appellant Maryland Casualty Company (Maryland), the primary liability insurer for the Pr...
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Opinion In this case we examine the “provocative act” (or Washington-Gilbert) theory of murder, under which a person may be liable for the death of an accomplice. (People v. Washington (1965) 62 Cal.2d 777 [44 Cal.Rptr. 442, 402 P.2d 130], People v. Gilbert (1965) 62 Cal.2d 690 [47 Cal.Rptr. 909, 408 P.2d 365].) A jury convicted defen...
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*803 Opinion Petitioner Steve J. seeks extraordinary writ review (Welf. & Inst. Code, 1 § 366.26, subd. (l); Cal. Rules of Court, rule 39.1B) from respondent court’s order that a section 366.26 hearing be held June 13, 1995. He contends he received inadequate services for the purpose of reunifying with his dependent child, Jason J. On review, we find respondent did not...
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35 Cal.App.4th 775 (1995) 41 Cal. Rptr.2d 534 In re ROSALIO S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ROSALIO S., Defendant and Appellant. Docket No. D021701. Court of Appeals of California, Fourth District, Division One. June 1, 1995. *776 COUNSEL Lynne G. McGinnis, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. L...
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Opinion In this appeal, Voeurn O. contends there is insufficient evidence to sustain the juvenile court’s finding he gave false information to a police officer within the meaning of Penal Code section 148.9, subdivision (a). 1 He also maintains section 148.9 is unconstitutionally vague and he was singled out for prosecution because of his suspected gang status. We find Voeurn’s...
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Opinion Linda A. Dresser (formerly Linda D. Brown) appeals an order denying her request to modify spousal support. She contends the superior court erred in concluding it lacked jurisdiction to extend the duration of Richard E. Brown’s spousal support obligation beyond the 60-month limit set forth in the judgment of dissolution incorporating the parties’ marital settlement agreement (Agreement). We...
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Opinion In a matter involving issues of insurance coverage, plaintiff and appellant Truck Insurance Exchange (Truck) appeals from the summary judgment entered in favor of defendant and respondent Amoco Corporation (Amoco) in a declaratory relief action alleging Amoco to be the “de facto” insurer for Cyprus Amax Minerals Company (Cyprus), a former wholly owned subsidiary, based on the pare...
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Opinion Plaintiff Professor Joseph Bunnett sued his employer, defendant Regents of the University of California (hereafter, the University), for breach of contract, rescission, breach of fiduciary duty, and breach of the covenant of good faith and fair dealing after defendant denied his application to participate in the “Plus 5” voluntary early retirement incentive program because he was ...
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Opinion On September 22, 1988, the surviving wife and five children of Henry Greathouse (hereafter plaintiffs) filed a complaint against a lengthy series of defendants, including Amcord, Inc., doing business as Riverside Cement Company (hereafter Riverside), to recover damages for his death from asbestos-related disease. Before or during trial plaintiffs *835 settled for a total sum of $284,0...
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*Supp. 3Opinion Defendant appeals from the judgment of the trial court finding in favor of plaintiff, allowing plaintiff to foreclose on its mechanic’s lien. Facts In October 1988, Rick Deese and Old Ivy/Lawndale II, a limited partnership, entered into a written agreement for the construction of improvements on property owned by the limited partnership. From November 1, 1988, through December 9, ...
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Opinion Statement of the Case and Facts Wine World, Inc. (Wine World) is a producer and supplier of wines, including Beringer, Napa Ridge, Chateau Souverain and Meridian. Wine World distributes its wines through a network of independent distributors located throughout the United States. Brand Wines & Spirits, Inc. (Brand) and Varni Bros. Corporation (Varni) are former distributors fo...
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Opinion Plaintiff Rafael Radovich appeals from a judgment, for defendants William F. Locke-Paddon (an attorney) and the law firm by which Locke-Paddon was employed, based on summary adjudication of issues in consolidated civil actions. The trial court was called upon to answer two questions of law: (1) Did Locke-Paddon or the law firm, in preparing a will for a client who died withou...
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*897 Opinion In the published portion of this opinion we construe and apply Health and Safety Code section 1799.110, subdivision (c), which sets qualifications for medical experts in certain actions for medical malpractice arising out of treatment rendered in the emergency department of a general acute care hospital. We will ultimately reverse the judgment for the reasons express...
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Opinion This is an appeal from a judgment of the superior court finding that respondent Communist Party of the United States of America (hereinafter respondent or the Party) is the beneficial owner of appellant public benefit corporations, 522 Valencia, Inc. (522 Valencia) and Pacific Publishing Foundation, Inc. (Pacific Publishing), and that all of the assets of both corporations are hel...
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Opinion Rodney Beck (defendant) appeals from a judgment ordering the forfeiture to the People of $30,000 in United States currency seized from a vehicle located in the backyard of defendant’s house during a search for suspected marijuana. *938 On appeal, defendant contends (1) he was entitled to appointed counsel, and the court’s failure to appoint counsel requires reversal of the judgment;...
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Opinion Plaintiff Susan Oliva’s coworkers became defendants by injuring her in a prank at work. The coworkers filed a motion for summary judgment, contending the action was barred by the general rule that workers’ compensation is plaintiff’s exclusive remedy (Lab. Code, § 3601 1 ). The trial court agreed and granted the summary judgment motion. Contending that pranks cannot be within the scop...
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Opinion The People appeal the order setting aside an information charging Wyatt Silver with assault by a prisoner likely to cause great bodily injury (Pen. Code, 1 § 4501). On May 13, 1994, the People filed a complaint in Imperial County charging Silver with assault by a prisoner likely to cause great bodily injury. When correctional officer Sergeant Mason testified at the preliminary heari...
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Opinion Petitioner James “Terry” B. is the father of two dependent children of the juvenile court, Aaron B. and Justin B. Pursuant to California Rules of Court, rule 39.IB, petitioner filed a petition for extraordinary relief seeking review of the trial court’s order terminating reunification services *1016 and setting a permanency planning hearing pursuant to Welfare and Ins...
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Opinion Petitioner Roxanne H. is the mother of four dependent children of the juvenile court, Jessica G., Samantha G., Brandi G., and O’Ryan G. Pursuant to California Rules of Court, rule 39.IB, petitioner filed a petition for extraordinary relief seeking review of the trial court’s order setting a permanency planning hearing pursuant to Welfare and Institutions *1010 Code se...
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Opinion This case considers the simple question of whether a paternity blood test may be judicially compelled at the behest of a father who is seeking to vacate a three-year-old paternity judgment. Appellant City and County of San Francisco (City) contends that the court abused its discretion in ordering paternity blood testing at the behest of respondent Jose Cartagena, the judicially determin...
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Opinion I. Introduction The County of Ventura and its district attorney, Michael Bradbury, appeal from an order dismissing an action by which they seek to compel the State Bar of California to permit Bradbury to challenge, on behalf of employees for whom they paid compulsory bar dues, the State Bar’s calculation of the voluntary portion of dues used for political or ideological purpo...
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*1119 Opinion Defendant and appellant City of Compton (the City) appeals the judgment entered following court trial granting plaintiff and respondent Shell California Pipeline Company (SCPC) concurrent, nonexclusive, subsurface pipeline easements for two oil product pipelines that run under the City’s streets. Because SCPC is a public utility entitled to condemn the instant ...
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Opinion Linda E. Stanley (appellant) timely appeals from a judgment of nonsuit entered as to her claims for breach of fiduciary duty, legal malpractice, and breach of contract. These claims against respondents Diana Richmond (Richmond or respondent) and her law firm, Richmond & Chamberlin (collectively, hereinafter, respondents), arose out of a dissolution proceeding in which Richmond rep...
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Opinion Appellants Steve and Sharon Munkdale seek review of a judgment by which the San Mateo Superior Court denied their claim for a refund of property taxes paid. The trial court found that the respondents, County of San Mateo and its assessor, Roland Giannini, had properly reassessed 100 percent of certain parcels of real estate upon transfer of those *1107 properties from...
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Opinion The sole issue in this case is whether Code of Civil Procedure 1 section 12a, which extends the time period for performing an act when the last day falls on a holiday, is applicable to the 30-day time limit within which to file a complaint after service of an arbitration award in an attorney fee dispute. We conclude that it does, and reverse the judgment. Facts and Procedural Histor...
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Opinion Defendant and appellant Alexander Rutan Joehnk was convicted of driving under the influence of an alcoholic beverage (Veh. Code, 1 § 23152, subd. (a)), and of driving with a blood-alcohol level of 0.08 or higher (§ 23152, subd. (b)). He appeals, arguing the trial court erred in allowing a police officer to use findings from horizontal gaze nystagmus (HGN) testing as a b...
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*1143 Opinion May a court order payment of temporary spousal support and litigation expenses, including attorney fees, in a civil action by one spouse to enforce the other’s duty of support during the marriage? Although this precise question has not been previously decided, closely related precedent dictates an affirmative answer. We therefore affirm the interim support orders under review, w...
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Opinion Marco Antonio Castaneda appeals his convictions for drug possession on two separate occasions after the trial court denied his motion to suppress evidence. He raises the same issue on appeal as he did in his motion: did the police officers unreasonably detain and frisk him? We affirm. Facts In 1989, a police officer contacted Castaneda while he was seated in the passenger seat of an illega...
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Opinion Plaintiff Sherri Lynn Dutton (Dutton), through her guardians ad litem, appeals from a judgment in favor of defendants City of Pacifica (the City) and Pacifica Police Officer Anthony Risso (Risso). Dutton contends that the trial court’s order granting summary judgment must be reversed because there is a triable issue of material fact as to whether Risso owed her a duty of care. We ...
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Opinion Plaintiff Daniel Hussey appeals from the judgment entered following the grant of summary judgment in favor of defendant Operating Engineers Local Union No. 3 of the International Union of Operating Engineers (the Union). 1 We have determined summary judgment was properly granted. I Procedural and Factual Background Hussey filed a complaint against the Union and its business agen...
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Opinion State law protects public safety officers from being compelled to submit to polygraph examinations against their will. (Gov. Code. § 3307.) 1 We conclude that a city police department may require a polygraph examination for officers who voluntarily seek to be promoted or transferred into a few specialized divisions where the work is unusually sensitive and requires the ...
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Opinion Plaintiffs Domingo and Katherine Legarra brought a declaratory action seeking to establish defendant Federated Mutual Insurance Company’s duty to defend and indemnify them in connection with a demand by the California Regional Water Quality Control Board for certain response costs for groundwater contamination on their property. Defendant successfully moved for summary judgment on...
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Opinion Anthony Brown appeals a judgment after a jury convicted him of second degree murder of a human fetus (Pen. Code, 1 § 187, subd. (a)) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)). He contends section 187 is unconstitutional as applied to his case; the trial court erred in failing to instruct the jury on the lesser included offense of manslaughter; th...
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Opinion This appeal involves a procedural attack on the trial court’s decision to grant a new trial motion and concerns the sufficiency of evidence to support an award of damages. The matter arises from a breach of contract action for the purchase and sale of replicated video discs. The issue is not whether damages should have been awarded, but whether the amount of the award was excessiv...
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Opinion This is the second appeal before us in this action by a home seller against an escrow agent for various misdeeds which allegedly occurred in connection with the sale of plaintiff’s house. In the first appeal we held that the trial court properly concluded that plaintiff’s claims for impairment of security were barred by plaintiff’s full credit bid at the trustee’s sale. But we als...
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Opinion The City of Pismo Beach and its city council (City) appeal from a trial court order overruling their demurrer to and granting a petition *1603 for writ of mandate filed by former City Police Officer Mark Stewart (Stewart). The writ compels the City to provide Stewart with a defense, i.e., separate counsel, in a federal civil rights action filed against him, the City, ...
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Opinion The Department of Motor Vehicles (DMV) appeals from a judgment granting respondent John Robert Baldwin’s petition for writ of mandamus, in which Baldwin sought to overturn the DMV’s order revoking his driver’s license. The DMV issued the order after receiving notice of Baldwin’s third conviction for driving under the influence of alcohol. The judgment directs the DMV to vacate its...
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Opinion The issue presented is whether a jury can award exemplary damages when it has expressly determined that the plaintiffs were entitled to “0.00” compensatory damages. Our answer is No. Background The latest episode in a bitter and protracted dispute concerning a rundown residential property under the control of Ron Daley was a complaint in which neighbors to the property a...
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Opinion The Department of Motor Vehicles (DMV) appeals from a judgment granting respondent Edward Donald Monaghan, Jr.’s, petition for writ of mandate, which sought to set aside the suspension of Monaghan’s driving privilege for driving with an illegal blood-alcohol concentration (BAG). The judgment grants the writ without prejudice to the DMV’s holding of an administrative hearing to review th...
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Opinion George Bostrom was severely injured when the small plane he was piloting crashed on takeoff from Chino Airport. The County of San Bernardino (the County) owns Chino Airport. The County leased land at the airport to Cal West Aviation for the purpose of providing jet fueling and other services. The crash occurred because an employee of Cal West Aviation fueled the plane with jet fue...
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Opinion In this appeal, we conclude that the Knox-Keene Health Care Service Plan Act of 1975 (Act) (Health & Saf. Code, § 1340 et seq.) and section 1300.46 of title 10 of the California Code of Regulations (hereafter regulation 1300.46) prohibit a broker of health care service plans from rebating commissions to his clients. Plaintiff James R. Schmidt worked as an independent broker f...
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Opinion In this breach of insurance contract action, the trial court granted summary judgment motions for the insurer (Sun Insurance Company of New York; Sun) and its managing general agent (Wm. H. McGee & Co., Inc.: McGee), entered a judgment of dismissal for the insurance broker (Sander A. Kessler & Associates, Inc.; Kessler), granted a summary judgment motion for the insurer on its cro...
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Opinion Plaintiff General Motors Corporation brought an action for a refund of business taxes imposed by the defendant City of Los Angeles pursuant to provisions of its municipal code on the ground that the taxes are discriminatory and violate both the California and the United States Constitutions. After a bench trial, judgment was entered in favor of the city. General Motors appeals. I In...
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Opinion Following an accident with an underinsured motorist, plaintiffs Michael and Mary Sutton who held three separate automobile insurance policies on three separate vehicles with defendant Farmers Insurance Exchange (Farmers), unsuccessfully sought coverage under the policy with the highest underinsured motorist liability limit. Thereafter, plaintiffs filed the instant action for declaratory...
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Opinion This case presents the unusual question whether the alleged gender bias of the trial judge requires us to set aside his judgment. Appellant, Marie Catchpole, commenced this litigation in the Superior Court of Humboldt County, asserting claims of sexual harassment, assault and battery, and intentional and negligent infliction of emotional distress against respondents, Melody a...
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Opinion In this case we are called upon to consider the authority of the juvenile court to extend the time parameters ordinarily applicable to dependency proceedings in an unusual circumstance where a parent’s hospitalization for mental illness compromises her ability to participate in reunification services. The mother, Rebecca, was hospitalized for all but five months of the reunification phase...
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Opinion This appeal and the related cross-appeal involve the sufficiency of monetary damages awarded to a landlord after a long-time commercial tenant vacated and left the premises in disrepair. The property in question is a commercial building on La Cienega Boulevard in Culver City, which was operated at all relevant times as the Dorman-Winthrop men’s clothing store. Appellant and c...
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Opinion Appellant Margaret L. Banks contends the trial court wrongly granted summary judgment against her numerous legal claims. All these claims arise from her contentions that she was improperly given grades of “incomplete” in a private university program leading to a teaching credential, and was dismissed from this program, after a number of disturbing episodes of unprofessional or una...
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Opinion In this petition for extraordinary relief, we determine an indigent parent is entitled to appointed appellate counsel where that parent’s rights have been terminated in a proceeding freeing his or her child from custody and control (Fam. Code, 1 § 7822) or in a proceeding declaring that parent’s consent unnecessary for a stepparent adoption. (§§ 9000, 8604.) Relying on ...
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*1768 Opinion This is an appeal from an order denying a motion to set aside a default judgment in an action for declaratory and injunctive relief regarding Lisle Steven Saum’s claimed right-of-way easements over property owned by Leroy and Sally Reppert. The Repperts answered the Saum complaint and filed a cross-complaint. Saum failed to answer the cross-complaint and his de...
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Opinion This case presents a unique problem created by the efforts of the trial courts to coordinate the work of the municipal and superior courts in criminal cases. Here, the same superior court judge sat as a magistrate at the preliminary examination and later as a superior court judge after the bindover and filing of an information. Apparently, confusing the statutory authority of the magist...
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*277 Opinion In this case we hold that a trial court may order joinder of a personal injury action with a related uninsured motorist arbitration proceeding, where such joinder is necessary to prevent inconsistent rulings. Real parties in interest Melissa and Ronald Louie are plaintiffs in a personal injury action against two motorists, each of whom rear-ended the Louies’ car...
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Opinion This appeal stems from the purchase of a single family residence by Bruce A. Loken in 1987. After discovering a crack in the *266 cement slab of the building in 1990, Loken brought this action against various individuals and real estate brokerages involved in the sales transaction, including the seller’s real estate brokerage and agent, Century 21-Award Properties and Jim E. Carmichae...
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Opinion In this case, we decide that when a lender does not require in its contract that the borrower obtain earthquake insurance on the property securing the loan, it has no right under the contract to receive or control the insurance proceeds paid as a result of earthquake damage to the property. Factual and Procedural Summary On June 27, 1988, petitioner Phyllis Ziello (borro...
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Opinion This case of first impression presents the question of whether the “three strikes” law prevents a trial judge from sentencing a “wobbler” as a misdemeanor. We hold that it does not. The People appeal from a judgment entered following respondent Kenneth Lester Vessell’s no contest plea to a charge that he violated Penal Code section 273.5, subdivision (a), 1 after h...
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Opinion In the latter part of 1994, appellant Reginald Green was convicted by a jury of selling rock cocaine to an undercover police officer (Health & Saf. Code, § 11352, subd. (a)). Following a jury waiver, prior convictions for petty theft with a prior and first degree burglary were found true by the trial court. *282 Since the prior burglary conviction qualified as a “fir...
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Opinion Plaintiff and appellant John O. Robertson (Robertson) appeals a judgment striking his complaint and dismissing his action pursuant to Code of Civil Procedure section 425.16 and awarding $15,000 in attorney *352 fees to defendants Alex Rodriguez (Rodriguez), Jack Cluck, Joseph Graffio and David Silva (collectively, defendants). 1 Defendants also appeal, se...
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Opinion Defendants Jerry J. Tepper and C.F. Group, Ltd. (together Tepper) appeal an order finding plaintiff Ralph Brienza’s (Brienza) attorney’s lien for contingency fees in the underlying lawsuit against Tepper was entitled to priority over a subsequently acquired offset obtained by Tepper (the judgment debtor) against Brienza (the judgment creditor). We affirm. Facts The parti...
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Opinion Stanton Road Associates (Stanton), a limited partnership, appeals from two judgments entered after the trial court sustained the demurrers of three insurers without leave to amend and granted summary adjudication in favor of a fourth. We ordered the appeals consolidated and now affirm both judgments. Background This case involves a continuous property loss and claims mad...
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Opinion The Insurance Commissioner of the State of California (the Insurance Commissioner) was appointed as the conservator and liquidator of Title U.S.A. Insurance Corporation (Title U.S.A.) in a proceeding brought under section 1010 et seq. of the Insurance Code.1 The Insurance Commissioner filed suit against the law firm of Armato, Gaims, Weil, West & Epstein (Armato) to recover from it money ...
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Opinion Ernest Dwaine Butler was charged with first degree burglary (Pen. Code, §§ 459-460, subd. 1) and grand theft (Pen. Code, § 487, former subd. 1.) A jury returned a verdict acquitting appellant of the burglary charge, but finding him guilty of grand theft. Appellant appeals from the judgment entered upon this verdict. His sole contention on appeal is that he was deprived of the effective ...
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Opinion This case arises under the so-called “three strikes” legislation (Pen. Code, § 667, subds. (b)-(i); Stats. 1994, ch. 12, §§1-2). In late 1993 defendant entered a plea of guilty to one count of residential burglary (Pen. Code, § 459; all further statutory references are to the Penal Code unless otherwise specified), a serious felony under section 1192.7, subdivision (c)(18). He was...
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36 Cal.App.4th 393 (1995) 42 Cal. Rptr.2d 260 ROBERT DEMYER et al., Plaintiffs and Appellants, v. COSTA MESA MOBILE HOME ESTATES et al., Defendants and Respondents. Docket No. G013481. Court of Appeals of California, Fourth District, Division Three. June 30, 1995. *394 COUNSEL Peter L. Recchia and Stephen I. Blanchfill for Plaintiffs and Appellants. Swanson & Dowdall, Swanson & Gieser and...
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Opinion California lettuce grower and distributor KGM Harvesting Company (hereafter seller) had a contract to deliver 14 loads of lettuce each week to Ohio lettuce broker Fresh Network (hereafter buyer). When the price of lettuce rose dramatically in May and June 1991, seller refused to deliver the required quantity of lettuce to buyer. Buyer then purchased lettuce on the open market in o...
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Opinion Plaintiff Robert Barber appeals from the summary judgment granted for defendants Marina Sailing, Inc., Harold Crum, Mike *561 Jones, Moore and Associates and Larry Moore. For the reasons set forth below, we reverse the judgment. Facts and Procedural History Plaintiff and appellant Robert Barber (Barber) is a highly experienced sailor. On August 25,1992, at t...
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Opinion This is a “second strike” case under the new “three strikes” law, yet another complex sentence law overlaying an existing complex sentencing scheme. 1 David McKee pled guilty to four counts of forgery. (Pen. Code, § 470.) 2 He was sentenced to prison for six years, eight months and appeals contending: “I. The trial court erred in imposing consecutive subordin...
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Opinion Plaintiff and appellant Wilhelmina B. Pruyn (plaintiff) appeals from a judgment which dismissed her complaint brought against multiple insurance companies under the “direct action” provisions of the Insurance Code. (Ins. Code, § 11580, subd. (b)(2).) 1 The trial court sustained the objections to plaintiff’s pleading by the defendant and respondent insurers 2 ...
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Opinion In this declaratory relief action brought by an insurance company against two third party claimants that had obtained a liability judgment against the carrier’s insured, the trial court held that the claimants, having been dragged into this coverage dispute by the carrier, had no standing to litigate the carrier’s waiver of its right to deny coverage. We reverse. Background ...
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*534 Opinion In this prosecution for driving while under the influence of alcohol, the parties agree that the arrest was violative of Penal Code section 836, subdivision (a)(1) which requires that a warrantless arrest for a misdemeanor be committed in the presence of the arresting officer. The parties also agree that the judicially created exclusionary rule mandating that evidence obtained in...
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Opinion Petitioner, Armando L., Sr., petitions for a writ of mandate directing the juvenile court to set aside its order of March 13, 1995, ordering the department of children and family services (DCFS) to provide permanent placement services for his son, Armando L., Jr. (the minor), and setting a Welfare and Institutions Code section 366.26 1 selection and implementation heari...
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Opinion Gwendolyn Matthews (Matthews) petitions for a writ of mandate after the court denied her peremptory challenge to a judge under Code of Civil Procedure 1 section 170.6. Matthews had previously exercised one challenge pursuant to section 170.6 and attempted to exercise another challenge after the second trial judge granted a summary judgment motion and was partially rever...
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Opinion Respondents Thomas E. Kaljian and Todd Merrill recovered judgment based on a jury’s special verdict against appellants Richard Menezes, 1 Herman Menezes, John Menezes, and Triple M Cattle Company. The judgment was for $2,165,111, consisting of $2,090,375 in contract damages, $49,736 in fraud damages, and $25,000 in punitive damages. The action arose from Menezes’ termin...
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Opinion In this case, we are called upon to interpret a construction lender’s obligation to an “original contractor" under the “stop notice” provisions of former Civil Code sections 3159 and 3162.1 1 The precise issue before us is whether the second, italicized sentence in each of the statutes *686 conditions a construction lender’s obligation to withhold funds aft...
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Opinion Plaintiffs and appellants Louie Vance et al. are mobilehome owners renting spaces in a mobilehome park owned and operated by defendants and respondents Villa Park Mobilehome Estates et al. in the City of Long Beach. Appellants brought this action for declaratory relief and an accounting, alleging that certain provisions of their leases specifying formulas for future rent increases...
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Opinion Plaintiff and appellant Thomas Shelley appeals seeking review of a class certification order on the ground that a broader class should have been included. Because we believe that an order partially certifying a class is not a final judgment and therefore not appealable, we dismiss. I In May of 1986, appellant was cited for allegedly parking in a “no parking” zone, which resulted in his ca...
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Opinion Rejecting defendant’s claims that a defense witness should have been compelled to testify, we affirm his cocaine trafficking conviction. We hold that a convicted defendant retains his Fifth Amendment privilege as to subsequent proceedings against other defendants at least until the time he no longer retains the right to file a timely notice of appeal. Background An undercover officer appro...
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Opinion Plaintiff/appellant Willie Thompson, a minor, by and through his guardian ad litem Patricia Thompson, appeals a summary judgment in favor of defendants/respondents Paul N. Halvonik, Halvonik & Halvonik, Fred J. Hiestand, and Deborah Hinkel Halvonik in his action for legal malpractice. He principally contends there are triable issues of fact as to whether respondents failed to pros...
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Opinion Following her plea of no contest to one count of possession of methamphetamine, defendant Theresa May Mitchell appeals on the sole ground that her motion to suppress evidence was erroneously denied. We disagree and affirm the judgment. We hold here that pursuant to the arrest of an occupant of a vehicle, police may search the passenger compartment and any containers therein, inclu...
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Opinion Defendant Robert C. Weatherford (Weatherford) appeals from the trial court’s order denying his petition for equitable relief from a judgment in favor of plaintiff County of Alameda (the County). Weatherford contends that he is entitled to equitable relief from the judgment on the *668 ground that it is not clear and definite on the issue of interest. 1 We a...
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Opinion Plaintiffs/appellants Norton Kamo et al. appeal the dismissal of their legal malpractice action against defendants/respondents W. Craig Biddle et al. 1 after respondents’ demurrer was sustained without leave to amend on statute of limitations grounds. (Code Civ. Proc., § 340.6, subd. (a)(1), (2).) 2 Appellants contend the trial court erred regarding the comme...
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Opinion Appellant Isaías Frausto pled guilty to a violation of Penal Code section 264.1, rape while acting in concert. He appeals from an order requiring him to undergo AIDS testing pursuant to section 1202.1 of the Penal Code, arguing that section 264.1 is not specifically listed in section 1202.1 as one of the offenses on which an order for compulsory AIDS testing can be based. We hold that a...
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Opinion Petitioner Angela S. is the mother of two dependent children of the juvenile court, Octavio S. and Melissa S. Pursuant to California Rules of Court, rule 39.IB, petitioner filed a petition for extraordinary relief seeking review of the trial court’s order setting a permanency planning hearing pursuant to Welfare and Institutions Code section 366.26. 2 The hearing is currently schedule...
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Opinion I. Introduction In this action coordinated from separate complaints filed in Alameda, Los Angeles, San Bernardino, and San Diego Counties, plaintiffs (or Card Clubs) obtained an injunction against defendant state and local officials from enforcing prohibitions against the play of jackpot poker. Specifically, in August 1989 through January 1990, plaintiffs filed actions seeking dec...
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Opinion Just before midnight on Friday, February 4, 1994, 17-year-old Erik D. Taylor was driving his 2 friends home from a school dance in his *814 Toyota pickup truck. He was not exceeding the speed limit. Scotts Valley Police Officer Hohmann was driving northbound on Scotts Valley Drive, and Taylor’s truck was southbound on the same street. As Hohmann’s car passed by Taylor...
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Opinion A judgment was entered against defendants Gussman, Dopp and Stillwater Institute after a jury trial despite the trial court’s discovery that defendants’ attorney was not authorized to practice law. The trial court refused to grant a mistrial and denied a motion for new trial on grounds that the defendants knew or should have known their attorney was not an attorney. Defendant Dopp...
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Opinion Aljerome McCain pled guilty to possessing cocaine base in violation of Health and Safety Code section 11350, subdivision (a) and admitted a serious felony prior pursuant to Penal Code 1 section 667, subdivisions (d) and (e). He was sentenced to a total term of 32 months, consisting of the lower term for the crime of possessing cocaine base, which was doubled because of his qualificati...
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Opinion Defendant was convicted by jury of diversion of construction funds (Pen. Code, § 484b) and petty theft (Pen. Code, § 488). The court struck the theft count and granted defendant probation. On appeal defendant contends there were several instructional errors. We find the *846 failure to give a unanimity instruction when defendant offered differing defenses to various acts that could co...
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Opinion Civil Code section 1719, subdivision (a) 1 provides in part that any person who draws a check that is dishonored due to insufficient funds shall be liable to the payee for the amount owing upon the check and treble damages of at least $100, not to exceed $500. In this section 1719 action, we conclude the maker of a dishonored check may raise defenses under the Uniform Commercial Cod...
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Opinion I. Introduction This is an appeal from a judgment of the San Francisco Superior Court entered after respondents’ demurrer to the appellant’s complaint was sustained without leave to amend. The case presents the issue of whether a 1993 order of the Nevada County Superior Court, entered in an minor’s personal injury action, and purporting to deny appellant’s quantum meruit lien...
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Opinion This appeal arises out of a freeway collision in which the car driven by plaintiff/appellant rear-ended defendants/respondents’ car. At trial, the issue was whether the accident was a straight *1030 rear-end collision in which appellant was clearly at fault or whether respondent Clifford Alesso, who drove the other car, suddenly changed lanes and cut off appellant. Each side called an...
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Opinion A worker is injured while repairing a cable television line. He sues the general contractor who hired his employer, an independent *1035 contractor, for breach of a nondelegable duty. He asserts that the doctrine of “nondelegable duties” survives Privette v. Superior Court (1993) 5 Cal.4th 689 [21 Cal.Rptr.2d 72, 854 P.2d 721]. It does. The worke...
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Opinion The crux of this appeal is whether a municipality, consistent with applicable ordinances and without overreaching areas occupied by state law, can bar a contractor from bidding on its public works projects for five years, on a declaration of irresponsibility for knowingly *1081 filing a false claim. We conclude it can and reverse the order preliminarily enjoining the ...
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Opinion A fast-food restaurant hires a security guard to protect its patrons. Some youths threaten a patron of the restaurant in the presence of the security guard. A fight ensues in which the patron is injured. Under such circumstances there is a duty on the part of the restaurant to protect its patron and there is a triable issue of fact as to whether the security guard acted reaso...
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Opinion In this opinion, we must determine whether or not the City and County of San Francisco (City) may lawfully prevent persons between the ages of 18 and 20 from entering or remaining on the premises of after-hours clubs in the City. We conclude that the City may do so. *1182 Article 15.2 of the San Francisco Police Code (SFPC) (§§ 1070 through 1070.25) establishes entert...
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Opinion Defendant Theodore Whight discovered that the automated teller machine (ATM) card connected to his defunct checking account could still be used to obtain cash at four local Safeway stores. For several weeks he availed himself freely of this happenstance to obtain thousands of dollars. This led to his conviction by a jury of four counts of fraudulent use of an access card or “ATM” ...
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Opinion Appellant Rita Gentry (Gentry) raises virtually every conceivable objection under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) 1 to the approval by respondent City of Murrieta (City) of a plan of respondent McMillin Communities (McMillin) to build 198 homes. The City found that the project, as mitigated, would have no significan...
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Opinion The Department of Motor Vehicles (DMV) appeals from the superior court’s grant of mandamus overturning the administrative license suspension of respondent Dr. Craig A. Johanson. The court below found Johanson was not properly arrested for driving under the influence of alcohol. We disagree and reverse. Statement of the Case Johanson was arrested on October 21, 1993, for ...
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Opinion The People appeal the decision of the trial court to sentence Michael Joseph Trausch to county jail after he plead guilty to second degree burglary (Pen. Code, § 459), 1 “a wobbler,” and admitted prior convictions which qualify as “strikes” under the “three strikes” law, section 667, subdivisions (b) through (i). 2 The People contend that because the three st...
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Opinion In a postdissolution proceeding, respondent John A. Marshall, Jr. (husband) was ordered to pay appellant Suzanne F. Marshall (wife) $34,966.43 as reimbursement for federal taxes and related costs incurred when she was assessed for a tax liability husband assumed under the dissolution judgment but failed to satisfy. In an effort to enforce the order, wife tried to garnish husband’s...
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36 Cal.App.4th 1219 (1995) 42 Cal. Rptr.2d 888 THE PEOPLE, Plaintiff and Appellant, v. JED WILLIAM TEMPLE, Defendant and Respondent. Docket No. F021054. Court of Appeals of California, Fifth District. July 19, 1995. *1221 COUNSEL Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Michael J. Weinberger and Joel ...
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Opinion This appeal raises the issue of when “actual injury” occurs for purposes of the four-year limitations period for legal malpractice actions. *1196 (Code Civ. Proc., § 340.6, subd. (a)(1).) 1 Appellants Aldis and Nancy Baltins sued their former attorney, respondent Duncan M. James, in August 1990. They asserted James negligently advised them in 1984 about tra...
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Opinion Pursuant to a plea agreement, defendant pleaded guilty to second degree vehicle burglary. Defendant was granted supervised probation for three years with one hundred eighty days to be served in the county jail. The court imposed certain conditions on defendant’s probation including the condition that defendant submit to warrantless searches. The court also made a finding that a motor ve...
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Opinion Plaintiff Edgemont Community Services District (District) appeals from judgment entered in an action filed against defendant City of Moreno Valley (City) for declaratory relief and an injunction. Under the judgment the District is required to collect from its customers and remit to the City a utility user’s tax imposed by the City on the sewer services rendered by the District to ...
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Opinion Defendant Leonard Myers (Myers) appeals from a judgment in favor of plaintiff Fatmeh Badih (Badih) on her cause of action for wrongful discharge in contravention of public policy. In its special verdict, the jury found that Myers had terminated Badih’s employment because she was pregnant. On appeal, Myers contends that the judgment must be reversed because there is no fundamental ...
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Opinion This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071] (hereafter Wende) from a conviction, after a plea of no contest, on charges of robbery (Pen. Code, § 211), attempted carjacking (Pen. Code, §§ 215/664), possession for sale of rock cocaine (Health & Saf. Code, § 11351.5) and child abuse (Pen. Code,...
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Opinion Appellant/petitioner Maryemma Hargrave appeals from a postjudgment order enforcing obligations under a 1983 dissolution judgment. Appellant contests the court’s power to impose liability for delinquent income taxes on one declared to be an “innocent spouse” by the Internal Revenue Service. Appellant also disputes the court’s allocation of interest due on the tax liability, and its...
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Opinion This appeal presents for the first time an occasion to interpret and apply sections 1953.10 through 1953.13 of the Code of Civil Procedure. These sections detail a procedure for establishing the prior existence and authenticity of a private record destroyed in a conflagration or other public calamity. 1 Shirlyn Daddario (plaintiff) fell while skiing at the Snow Valley...
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Opinion Charles Okoli filed a charge of discrimination against his employer, Lockheed Technical Operations Company (Lockheed), with the California Department of Fair Employment and Housing (DFEH). The charge alleged that Okoli’s supervisor had denied him a promotion based on Okoli’s race and national origin and had made derogatory comments to him. While DFEH was investigating the charge, ...
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Opinion Appellants the Salvation Army, Guide Dogs for the Blind, Inc., and Masonic Homes of California, charitable beneficiaries under a testamentary trust (Trust B) of Corinne W. Reisinger, appeal an order distributing the trust’s assets. Respondent Kristen A. Wheaton Price is one of five residuary beneficiaries under Trust B. Appellants contend the court erred in ruling that the interest of t...
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Opinion In this case we are called upon to consider the consequences of the voluntary dismissal of a postarbitration request for a trial de novo. A judicial arbitrator’s award was issued in favor of Susan Kane and Theodore Abbott (Kane) in a case brought by Miriam G. Calderon and Orlando Espinoza (Calderon). Calderon, the losing party, then sought a trial de novo. (Code Civ. Proc., § 1141...
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Opinion In 1988, Robert Anthony Von Villas and codefendant Richard Ford were convicted, following a joint trial before separate juries, of conspiracy to commit murder (Pen. Code, §§ 182, 187) and the first degree murder of Thomas Weed. (Pen. Code, § 187.) Each jury found the special circumstance allegation that the murder was committed for financial gain to be true. (Pen. Code, § 190.2, s...
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Opinion This petition presents a challenge to the constitutionality of the statutory framework for certifying 14- and 15-year-old offenders for trial as adults. Briefly summarized, since 1976, minors who are 16 or older at the time of committing a crime can under certain circumstances be tried as adults in criminal court, but 14- and 15-year-olds have always been tried as juveniles. As of...
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Opinion Plaintiff and appellant Meydad Cohen (Cohen) appeals an order dismissing his personal injury action against defendant and respondent Hughes Markets, Inc. (Hughes) for lack of prosecution. 1 The issue presented is whether the trial court’s ruling constituted an abuse of discretion. We conclude the trial court erred in dismissing the action for lack of prosecution ...
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Opinion Introduction Defendants are members of the Naevus Syndicate which owned a stallion named Naevus, retired from racing to stud. Plaintiffs are Australian horse breeders and their joint venturer, who negotiated an agreement with the manager of the Naevus Syndicate to have Naevus transported to Australia to breed with mares there during the Southern Hemisphere breeding season. At...
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Opinion Defendant and appellant Terry L. Douglas appeals from the judgment entered following his conviction by jury of six counts of second degree robbery with the personal use of a firearm (counts 1, 4-8—Pen. Code §§211, 12022.5, subd. (a)) and two counts of attempted second degree robbery with the personal use of a firearm (counts 3 & 9—Pen. Code, §§ 664/211, 12022.5, subd. (a)), and th...
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*1813 Opinion In this antitrust action the sole question presented for our review is whether plaintiff has standing to sue his employer for alleged monopolistic practices. We conclude he does not, and we affirm the judgment of dismissal. Procedural History Plaintiff Leonard G. Vinci owned and operated a recycling business, Vinci Enterprises, Inc., which was in competiti...
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Opinion In these two related appeals, appellants Metro-Goldwyn-Mayer, Inc. and Credit Lyonnais Bank Nederland N.V. (CLBN) seek to overturn the trial court’s denial of two motions to disqualify counsel for defendants, Christensen White, Miller Fink & Jacobs (hereafter referred to as Christensen White or the Christensen firm). We reverse the judgment in case No. B084939. The appeal in ...
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Opinion Introduction Following a court trial, defendant Larry W. Fraize was convicted of two counts of violating Penal Code section 288a, subdivision (e) which prohibits a jail inmate from engaging in oral copulation, even if consensual. On this appeal, defendant contends the statute does not apply to his actions because the statute only criminalizes oral copulation by a jail inmate and at th...
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Opinion This appeal arises from an action for inverse condemnation. Plaintiffs’ complaint alleged an impairment of access from their property onto Flower Street caused by the construction of the Long Beach-Los Angeles Rail Transit Project known as the “Blue Line.” The trial court found no substantial impairment of access and denied relief. We affirm. Facts and Proceedings Below Plaintiffs, Stanle...
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Opinion In this action we consider whether, pursuant to Penal Code 1 former section 1203.04, a criminal defendant may be ordered to pay as restitution to the victim the appreciated value of assets he embezzled from a trust account. We conclude such an order is authorized by law. Facts and Procedural History Defendant Philip Charles Tucker was a licensed investment broker and stepfather of...
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Opinion This action for malicious prosecution, abuse of process and intentional infliction of emotional distress had its genesis more than 15 years ago. It is the fourth in a series of related lawsuits. Appellant Thomas M. Bells appeals from a judgment of dismissal entered upon the sustaining of a demurrer without leave to amend in favor of respondents Seymour Rosenblum, 1 Cres...
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Opinion A. M. Castle & Co. (Castle) appeals after the trial court denied its claim for a refund of corporate franchise taxes for the tax years 1975 through 1978. The court concluded Castle was unitary with its wholly owned subsidiary, Hy-Alloy Steels Co. (Hy-Alloy), and found that California could therefore include Hy-Alloy’s income in its tax calculation, even though Hy-Alloy did not dir...
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Opinion John S. Garrison (Garrison) appeals the trial court’s dismissal of his suit against respondent/defendant Board of Directors of the United Water Conservation District (United), following the court’s sustaining of United’s demurrer to Garrison’s first amended petition for writ of mandate without leave to amend. We reverse the judgment of dismissal. Background United held public hearings in...
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Opinion Plaintiff Kathryn Castaneda brought this medical malpractice action against the physicians who provided her with care and treatment before, during, and immediately after her birth. She alleged defendants’ negligence caused her to suffer brain damage which resulted in mental retardation. The trial court granted a nonsuit in favor of defendant Machikawa, the consulting “OB/GYN” and ...
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Opinion California Youth Authority inmates Freddie Chacon and Raul Alberto Lopez kidnapped a librarian during an attempted escape. They inflicted “bodily harm” and exposed her to a “substantial likelihood of death.” Appellants were apprehended, convicted, and sentenced to state prison for life without the possibility of parole. The amended information charged appellants with escape by means of fo...
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Opinion The juvenile court found that Alejandro G. committed two counts of assault with a firearm, one against Darrick Freeman and one against Tony Campbell (Pen. Code, 1 § 245, subd. (a)(2)), discharged a firearm at an unoccupied motor vehicle (§ 247, subd. (b)), and, in a separate incident, used words in a public place that were inherently likely to provoke an immediate violent reaction. 2...
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*144 Opinion The Santa Cruz Redevelopment Agency (Agency) sought an easement over a private parking area owned by appellants. 1 Agency adopted a resolution of necessity and then filed a complaint in eminent domain. After prohibiting appellants from introducing any evidence except for a four-page document, the trial court ruled that Agency possessed the right to take. C...
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Opinion Petitioner Glen Ludwig, defendant in the action below, seeks a writ of mandate to compel the trial court to grant his special motion to strike under Code of Civil Procedure section 425.16. 1 We conclude that real party the City of Barstow 2 , plaintiff below, has failed to show a “probability” of success on the merits within the scope of the statute, and that...
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Opinion River Valley Preservation Project (RVPP) appeals an order denying its petition for writ of mandate to require the Metropolitan Transit Development Board (MTDB) to prepare a supplemental or subsequent environmental impact report (SEIR) with respect to the Mission Valley West Light Rail Transit Project (LRT or Project). RVPP also appeals an order awarding MTDB its costs in preparing...
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Opinion This appeal is brought by the plaintiffs from a summary judgment in favor of all defendants. Plaintiffs, purchasers of a residence in *606 the City of Poway, sued defendant sellers as well as the sellers’ real estate representatives. The trial court ruled that no triable issues of fact existed as to certain crucial issues upon which the plaintiffs’ complaint depended,...
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Opinion This appeal is from a final order of dismissal after appellants Claire Levine and Passport Auto Shippers, Inc. (collectively appellants) failed to bring their action to trial within five years from the date it was *131 initially filed. 1 Appellants challenge an order made by the trial court relating to an award of attorney fees in favor of respondents and a...
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Opinion Thomas Smith, former pharmacist-in-charge of the Parkway Pharmacy in San Diego (Parkway), appeals a judgment denying his petition for a writ of administrative mandamus. Smith seeks to set aside a decision of the California State Board of Pharmacy (Board) adopting a decision of an administrative law judge (ALJ) revoking his license to practice pharmacy. The ALJ found Smith’s licens...
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Opinion Gloria Ann Graham is a beneficiary of an inter vivos trust created by her parents, who are now deceased. Graham filed an application *252 seeking a determination under Probate Code section 21320 1 of whether any of the claims asserted in her proposed petition to determine the validity of certain trust provisions would be a contest within the meaning of the ...
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*223 Opinion vThomas Hill challenges his sentence under the new so-called “three strikes” law (Pen. Code, § 667, subds. (b)-(i); Stats. 1994, ch. 12, §§ 1-2). He received his first “strike” in 1991 when he was convicted of robbery (Pen. Code, §211). In the spring of 1994, he was charged in separate complaints with two new felonies, possession of cocaine (Health & Saf. Code, ...
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Opinion With a blood-alcohol level of .22 percent, defendant and appellant Kenneth Autry recklessly drove on a freeway, swerved into the median strip, struck and killed two highway construction workers, and injured his two passengers. A jury convicted appellant of two counts of second degree murder (People v. Watson (1991) 30 Cal.3d 290 [179 Cal.Rptr. 43, 637 P.2d 27...
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Opinion A workers’ compensation judge (WCJ) apportioned 50 percent of applicant’s permanent disability to subsequent noncompensable events—applicant’s pregnancy and unemployment—relying on Labor Code section 4750.5. Applicant petitioned for reconsideration, which the Workers’ Compensation Appeals Board (Board) denied. Applicant then petitioned for a writ of review, which this court grante...
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Opinion In this case we decide that the doctrine of unconscionability applies to invalidate an express condition on transfer in a commercial lease, despite the Legislature’s broad authorization of transfer restrictions and reaffirmation of the principle of freedom of contract in a commercial setting. Citing an express clause in the lease, the lessor of a shopping center refused to allow a...
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Opinion Kali D., a minor (appellant), admitted automobile burglary (Pen. Code, 1 § 459) as alleged and, after a jurisdictional hearing, the court found true allegations of forcible rape (§ 261, subd. (a)(2)), possession of a controlled substance (Health & Saf. Code § 11350), and receiving stolen property (§ 496). The court found insufficient evidence to sustain an additional th...
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Opinion Vacaville Unified School District (hereafter School District) appeals a judgment awarding damages to a former student for injuries she suffered in an attack by another student. The plaintiff, Tracy Rae Skinner (hereafter Tracy or plaintiff), appearing through her guardian ad litem, Linda Skinner, alleged a cause of action for negligence against the School District and a separate c...
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Opinion We hold that the People have a right to appeal an order by the juvenile court sustaining, without leave to amend, a demurrer to an enhancement allegation pled in a petition brought pursuant to Welfare and Institutions Code section 602. We further hold that Penal Code section 12022.1 applies to a minor who has been released from custody, pending a jurisdictional hearing, under a “g...
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Opinion Denise Lambe filed an order to show cause for modification of a support order for her allegedly disabled adult child. Clement Meehan, Lambe’s ex-husband and father of the child, filed a motion to dismiss the order to show cause based on a previous stipulation between Lambe and himself, which terminated support as of a definitive date and waived future family law court jurisdiction...
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Opinion After plaintiff Honey Baked Hams, Inc. (HBH), voluntarily dismissed its action for unlawful detainer against defendant E. Robert Dickens, the trial court awarded the defendant his attorney fees pursuant to the express terms of the commercial lease between the parties. HBH appeals from the order, claiming the defendant may not recover attorney fees because HBH voluntarily dismissed...
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Opinion In this case, we hold that Contra Costa Water District (District), a county water district 1 formed under Water Code section 30000 et seq., and expressly authorized by statute (Wat. Code, § 31483) to issue revenue bonds under the Revenue Bond Law of 1941 (Gov. Code, § 54300 et seq.) to finance construction of facilities for the storage, transmission, distribu...
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Opinion The Department of Children and Family Services, represented by County Counsel, filed a petition for a writ of mandate accompanied by a request for an order changing the placement of Aquela P. (known to her family as Amber) or, in the alternative, for an order staying enforcement of an order of the juvenile court which permitted Hellen Jones, Amber’s great-aunt and court-appointed foster mo...
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Opinion In this decision, we hold that a defendant who provokes a gun battle by shooting at a victim may be guilty of proximately causing the murder of the victim, even if the victim is killed by shots fired by a third party during the gun battle. We also hold that, in such a situation, CALJIC No. 8.12 is properly modified by deleting the requirement, imposed in other contexts, that the d...
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Opinion Welfare and Institutions Code section 602 1 petitions were filed against Benjamin P. and Ricardo C., respondents, charging each of them with the felony of willingly setting fire to and burning a structure, Citrus Middle School. 2 In addition, each was charged with misdemeanor malicious destruction of personal property. The trial court granted their motions to...
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*488 Opinion Appellant Leo Anthony Goodloe was convicted by a jury of rape and assault with force likely to produce great bodily injury. (Pen. Code, §§261, 245, subd. (a)(1).) 1 Intentional personal infliction of great bodily injury enhancement allegations were found true as to each offense. (§§ 12022.8, 12022.7, subd. (a).) At the bifurcated second phase of the trial, the jury found true a...
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Opinion Plaintiff Sang Y. Han (plaintiff) appeals from an order which denied his petition for relief from failure to file a timely tort *555 claim with defendant, the City of Pomona. The trial court found that plaintiff showed a lack of diligence throughout the nearly four and one-half years between the time plaintiff’s cause of action arose and the day his petition for relie...
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Opinion Have the City of Monterey and the Office of Parking Violations (collectively Monterey) afforded liana Love (Love) due process by requiring her to deposit the amount of the parking penalty on a parking ticket in order to contest it at an administrative hearing? The answer is yes, according to the First District Court of Appeal (Division One) in Tyler v. County of A...
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Opinion S. S. (appellant) was adjudged a ward of the court based on his participation in the theft of an automobile. On appeal he challenges an *545order requiring him to make restitution to the victim. He contends that the amount of the victim’s losses was not adequately proven at the restitution hearing and that the court erred by declaring his obligation “joint and several” with that of anothe...
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Opinion Brandon Lee Branco (hereafter Branco) appeals from a summary judgment in favor of Kearny Moto Park, Inc. (hereafter KMP), Debbie Badders, Jerry Badders, the American Bicycle Association (hereafter ABA), and the City of San Diego (hereafter sometimes referred to collectively as defendants) 1 arising from Branco’s complaint alleging, inter alia, that the negligent design of an expert ca...
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Opinion Plaintiff William C. Shoemaker, M.D., was removed from the administrative positions he held with the Charles R. Drew University of Medicine and Science (the University) and the Los Angeles County Martin Luther King, Jr./Drew Medical Center (the Medical Center). Upon Shoemaker’s application, the trial court issued a mandatory preliminary injunction reinstating him to those position...
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Opinion A jury convicted defendant Billy Joe Jeffery, Jr., of manufacture of methamphetamine (Health & Saf. Code, § 11379.6), possession of methamphetamine for sale (Health & Saf. Code, § 11378), and five counts of sale of methamphetamine (Health & Saf. Code, § 11379). In a bifurcated trial, the court found defendant possessed in excess of three pounds of methamphetamine for sale. (Health...
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*599 Opinion Petitioner Dexter L. Homan asks this court to declare unconstitutional a provision of the state Budget Act which excludes persons convicted of certain sex crimes from receiving family visits in prison. We agree with petitioner that the provision violates the California Constitution’s “single subject” rule and direct respondent James Gomez, as Director of the Californ...
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Opinion This is an appeal from an order denying a motion to compel arbitration. Factual and Procedural Background In October 1993, respondents Hayes Children Leasing Company (hereafter, Hayes Leasing) and Automatic Rain Company, Inc. (hereafter, Automatic Rain) filed an action against NCR Corporation and several of its employees, Gregory Peck, Jean Claude Littee and M. Ted Senem...
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Opinion This action involves a dispute over the allocation of liability between two insurance companies which had insured a single *198 insured, Hacienda Roofing, Inc. (Hacienda). Appellant National American Insurance Company of California (NAICC) insured Hacienda under two liability policies covering the 1984-1985 and 1985-1986 periods. Those policies contained a “broad-form...
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Opinion Plaintiff and appellant Harry Frank Scolinos (Scolinos) appeals a judgment following a grant of summary judgment in favor of defendants and respondents Raymond G. Kolts, Kathleen Landgraf Kolts and Kolts & Nawa, attorneys at law (collectively, defendants). Because it is uncontroverted there was a failure by the parties to comply with the ethical rules pertaining to fee-splitt...
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Opinion This petition, brought by a nonsettling defendant in a multiparty construction defect case, challenges an order made by the trial court which found the plaintiff’s settlement with a number of codefendants to be “in good faith” in accordance with the terms of Code of Civil Procedure section 877.6. 1 The action was brought by Cambridge Terrace Owners’ Association, a homeo...
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*724Opinion Los Angeles County Department of Children's Services (DCS) appeals from an order entered pursuant to section 366.26 of the Welfare and Institutions Code,* 1 determining that although the minors Teneka W. (Teneka) and Drake W., Jr. (Drake Jr.), were adoptable, termination of the parental rights of their father Drake W., Sr. (Drake Sr.), would be detrimental to them.2 The court subseque...
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Opinion In this case we hold that a deed granting a nonexclusive easement of a specified width does not, as a matter of law, give the owner of the dominant tenement the right to use every portion of the easement. The trial court properly interpreted this easement to give the owner of the servient tenement the right to place improvements upon the easement as long as they do not unreasonabl...
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Opinion In this case we construe Penal Code section 1026.5 (hereafter, section 1026.5), which governs state hospital commitments for those found not guilty by reason of insanity. Section 1026.5, subdivision (a), sets forth a “maximum term of commitment” (equal to the maximum prison term had there been a conviction); and section 1026.5, subdivision (b), sets forth an exception to this “max...
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*712 Opinion During the trial of four defendants for the attempted murder of a police officer, a juror committed misconduct by having repeated contact with the uncle of two defendants. After a hearing, the trial court denied new trial motions finding the presumption of prejudice had been rebutted. We affirm the judgments. 1 Factual and Procedural Background Because the only issues invol...
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*678 Opinion A workers’ compensation judge (WCJ), applying the rebut-table presumption of compensability provided in Labor Code section 5402, 1 barred evidence offered by defendant State Compensation Insurance Fund (SCIF) concerning its admitted noncompliance with the statute and determined that an applicant was 100 percent permanently disabled due to industrial injury...
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Opinion Southern California Edison Company (SCE) has long-term contracts to purchase electricity generated by wind-powered turbines owned by Energy Development and Construction Corporation and San Gorgonio Farms, Inc. (referred to collectively as Energy Development). Each contract is divided into two “periods.” During the 10-year “first period,” Edison is required to pay a substantially higher ...
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Opinion Defendant Larry Thomas Dibb appeals from judgment after he was sentenced to 16-month concurrent prison terms upon his guilty pleas to charges of possessing methamphetamine for sale and possessing a controlled substance in jail. Earlier he had challenged, both in municipal and superior courts, the seizure of a bag containing methamphetamine from his person, based on evidence presented at...
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Opinion In 1992, California enacted an anti-SLAPP statute. (Stats. 1992, ch. 726, § 2; Code Civ. Proc., 1 § 425.16.) SLAPP is an acronym for Strategic Lawsuit Against Public Participation. SLAPP litigation, generally, is litigation without merit filed to dissuade or punish the exercise of First Amendment rights of defendants. (Hull v. Rossi (1993) 13 Cal.A...
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*908 Opinion Under recent amendments to Code of Civil Procedure section 473 (section 473), upon a timely filed motion for relief a trial court must vacate a default or resulting default judgment upon the sworn affidavit of the defaulting party’s attorney attesting to his mistake, inadvertence, surprise or neglect “unless the court finds that the default. . . was not in...
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*814 Opinion Paul Vincent Lunardi and Denise Lunardi, executor of the estate of Ralph Lunardi, brought this action for breach of contract and negligence after respondent Great-West Life Assurance Company (Great-West) rescinded the insurance policy it had issued on Ralph’s life. The trial court ruled that Great-West validly rescinded the policy because Ralph and Paul had concealed...
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Opinion In this case we hold an allegation that, among other breaches of professional duty, a lawyer charged a client excessive, unreasonable or unconscionable fees for professional services does not take the action outside the one-year statute of limitations for wrongful acts or omissions by an attorney in the performance of professional services. As to such a claim, we further hold the ...
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Opinion Defendant and appellant Manuel Ranjel Madrigal appeals from a judgment following revocation of his probation. We conclude the *794 trial judge acted in excess of his jurisdiction when he revoked defendant’s probation, after defendant’s probation violation matter had been duly assigned to another judge in accordance with local court rules. We reverse. Facts and Procedural Background ...
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Opinion In this case we are asked to consider the extent of a homeowner association director’s rights to inspect the records of the association under Corporations Code section 8334.1 Here a director asks us to conclude his inspection rights are absolute and include an unfettered right to review and copy the ballots cast by the association’s homeowner members in its annual election of its board of...
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Opinion By information filed in Merced County Superior Court on December 28, 1993, appellant, Antonio Morales Garcia, was charged with the following offenses: (1) the murder of Maria Prado, in violation of Penal Code section 187; (2) gross vehicular manslaughter while intoxicated in violation of Penal Code section 191.5; (3) driving while under the influence of alcohol or drugs resulting in inj...
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Opinion Richard Lee Irizarry appeals from the judgment entered following a jury trial resulting in his conviction for first degree burglary, with court findings he had two prior felony convictions for which he had served separate prison terms. (Pen. Code, §§ 459, 667.5, subd. (b).) Appellant contends: I. “The trial court erred in refusing appellant’s request for instruction on unauthorized en...
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Opinion Plaintiffs appeal the stipulated judgment entered following grant of summary adjudication of plaintiffs’ causes of action for breach of contract and breach of the covenant of good faith and fair dealing in favor of defendant Consolidated American Insurance Company (Consolidated). Plaintiffs contend that they were entitled to a defense of certain third party claims pursuant to the ...
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*1038 Opinion Petitioners David Kleis, Inc., doing business as Beaumont Convalescent Hospital (Kleis), and Anthony Raoul David, its administrator (David), seek a writ of mandate directing the superior court to vacate its order denying their motion to stay the trial in their declaratory relief action against California Insurance Company (CIC) and Pacific Rim Assurance Company (Pac...
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Opinion A long-range development plan for a university projects increased enrollment in a local elementary school district. A supplemental environmental impact report (SEIR) describes impacts of the plan. It proposes options which include building classrooms to accommodate additional students. Must the SEIR commit the university to provide funds to the district to build classrooms? No. ...
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Opinion Defendant Eddie Lee Rand (defendant) appeals his conviction of first degree murder of Clinton Sharp III. (Pen. Code, § 187.) The jury found true enhancement allegations that defendant personally used a firearm, that a principal was armed, and that defendant discharged a firearm from a motor vehicle causing injury or death. (Pen. Code, §§ 12022.5, subd. (a), 12022, subd. (a)(1), 12022.55...
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Opinion I Appellant Tung Yiu Tai was charged by information with fraudulent use of a credit access card (Pen. Code, 1 § 484g), forgery of a credit access card (§ 484f, former subd. (1)), and commercial burglary (§ 459). The information also set forth allegations that Tai had suffered two prior felony convictions, making him ineligible for probation (§ 1203, subd. (e)(4)), and one enhancemen...
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Opinion Michael Ray Rogers (appellant) appeals from a judgment of conviction following a jury verdict finding him guilty of attempted voluntary *1055 manslaughter and assault with a firearm and finding that he used a firearm in the commission of the offenses. (Pen. Code, §§ 664/192, subd. (a), 245, subd. (a)(2), 12022.5.) Appellant admitted a prior serious felony conviction. ...
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Opinion The facts in this case are uncomplicated and undisputed, but the same cannot be said about the pertinent law. At issue is the applicability of Government Code section 66499.20/2, a seldom cited section of the Subdivision Map Act (Gov. Code, § 66410 et seq.) (the Act). 1 The section provides in part, “Subdivided lands may be merged and resubdivided without reverting to a...
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Opinion In this case, in adjusting a child support order between former spouses, we hold that the trial court erred in disregarding the provisions of new section 4057.5 of the Family Code.1 Camilla Wood Casparis (Camilla) appeals from the judgment entered following a hearing on an order to show cause re child support filed by her ex-husband, William D. Wood, Jr. (William2). William’s 1993 motion ...
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Opinion An insurer which had issued a directors and officers (D & O) liability policy sought a summary judgment in a bad faith action brought by three director insureds who alleged that the insurer had unreasonably failed to defend or indemnify them in a timely manner thus causing them economic loss and emotional distress. The trial court denied the summary judgment and the insurer seeks ...
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Opinion Defendants, Robert B. Cassil and William F. Raymond, seek review of an order of the respondent court holding them in contempt for failure to comply with an order to transfer security deposits to a receiver. Because there was no substantial evidence defendants had the ability to comply with the order to transfer security deposits, we grant the habeas corpus and certiorari requests and annu...
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Opinion Gordon and Vera Gunderson appeal from a grant of summary judgment in their action against respondent Fire Insurance Exchange *1109 for breach of their insurance contract and tortious bad faith, arising out of respondent’s denial of appellants’ tender of the defense of a third party lawsuit. Appellants contend that the trial court erred in granting summary judgment in ...
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*1123 Opinion In this opinion we are called upon to determine the appropriate procedure for a trial court to follow when the proponent of a referendum petition challenges by petition for writ of mandate a determination by a county election department that certain persons who signed the referendum petition did not also print their names in a fashion acceptable to the election department. Her...
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*1075 Opinion The City of Oxnard (Oxnard) appeals the judgment in favor of respondents Twin City Fire Insurance Company (Twin City) and First State Insurance Company (First State). Oxnard had sued respondents for breach of contract and bad faith in failing to contribute to its defense in another action. We affirm the judgment. Facts Since 1975, Oxnard has maintained...
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Opinion This is a consolidated appeal by cross-defendants Louis W. Varga and R. Agnus Varga from a judgment by court after default entered *753 April 8, 1992, and from an earlier order of January 22, 1992, ordering appellants and their attorneys to pay sanctions in the amount of $2,190 in connection with appellants’ motion for relief from default. A fire at appellants’ restau...
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Opinion In Diamond Heights Homeowners Assn. v. National American Ins. Co. (1991) 227 Cal.App.3d 563, 582 [277 Cal.Rptr. 906] (Diamond Heights), we suggested that an excess insurer could stand in the position of a co-obligor on a contract debt and should be permitted to utilize Code of Civil Procedure section 877.6 1 proceedings to object to a settle...
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Opinion Appellants, Citizens’ Committee to Save Our Village et al., appeal from a judgment denying a peremptory writ of mandate ultimately seeking to compel preparation of a formal environmental impact report (EIR). Respondent City of Claremont prepared a mitigated negative declaration (MND) in lieu of a formal EIR in connection with a building project proposed by respondent Pomona Colleg...
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Opinion The question presented is whether an order setting aside a default judgment qualifies as a “new trial” order for purposes of Code of Civil Procedure section 583.320, which provides a three-year period *1151 within which to again bring the matter to trial when a new trial is granted by the trial court or ordered by an appellate court. 1 We conclude it does n...
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Opinion Retirement Board of the City and County of San Francisco Employees (appellant) appeals from a judgment granting Joanne Schmidt’s (respondent) petition for a peremptory writ of mandate. The writ of mandate commanded appellant to set aside its decision denying respondent a continuation of her deceased husband’s retirement benefits. Appellant contends that the trial court erred in ru...
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Opinion When a building is constructed with asbestos-containing materials, does a property owner’s cause of action for strict liability or negligence accrue on the owner’s discovery of the mere presence of asbestos in the building or when asbestos contamination occurs? In this case, we hold—consistent with the vast majority of other jurisdictions that have considered this issue—that the o...
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Opinion In these two unrelated cases we address an issue that arises with some frequency in speeding cases where radar has been used to enforce a posted speed limit. Can the People meet their initial burden of showing that the combination of a prima facie speed limit and the use of radar enforcement did not create a speed trap with no more than the citing officer’s testimony as to the existence an...
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Opinion We find that the People cannot rebut the presumption of a speed trap, which arises whenever radar is used to enforce a prima facie *Supp. 27speed limit, by producing a summary of the current engineering and traffic survey for the pertinent segment of roadway. Facts Newport Beach Police Department Officer Burgen used his hand-held radar unit to determine that defendant Neal Barnett Ellis’s ...
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Opinion On June 5, 1990, by adoption of an initiative designated on the ballot as Proposition 115 and entitled the “Crime Victims Justice Reform Act,” the voters of California authorized reciprocal discovery in criminal cases. The voters did not intend to apply the reciprocal discovery provisions to juvenile delinquency proceedings. (Robert S. v. Superior Court (1992) 9 Cal.App.4th 1417, 14...
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Opinion In this case of first impression, we hold that the crime of stalking (Pen. Code,1 § 646.9) does not require an intent to kill or cause great bodily injury, but only a specific intent to make a “credible threat” so as to make the threatened person reasonably fear death or great bodily injury. Accordingly, we affirm the stalking conviction and judgment. Factual and Procedural Background Ther...
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Opinion Lucia R., the natural mother of Ronald R., appeals from a juvenile court order terminating her parental rights and ordering adoption as the appropriate permanent plan for Ronald. We will affirm. Procedural History On November 3, 1992, respondent Fresno County Department of Social Services (DSS) filed a petition alleging that one-week-old Ronald R. was a minor within the jurisdiction of the...
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Opinion Petitioner, Angie M. (Angie), seeks extraordinary relief after the trial court sustained real party in interest Robert Hiemstra’s (Hiemstra) demurrer to her unlawful seduction/childhood sexual abuse and intentional infliction of emotional distress causes of action and granted a motion *1221 to strike her claim for punitive damages. The primary question presented is wh...
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Opinion Defendants were convicted by jury of multiple felonies. They have raised various claims on appeal and by petitions for writs of habeas corpus. Their primary complaints involve challenges to the sufficiency of evidence; inadequacy of jury instructions; admission of expert testimony, “profile” and “other crimes” evidence; the failure to sever the cases against each for trial; and ma...
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*1276 Opinion Plaintiff filed an action against defendant County of Santa Cruz for personal injuries she received when she was assaulted by a man who was confined with her in a holding room at the Santa Cruz County jail while they were both in the process of being booked on criminal charges. 1 Defendant sought summary judgment on the ground that it was immune from liab...
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Opinion Where class-action plaintiffs allege they have suffered no personal injury or property damage from a vehicle they claim is defectively designed, and it is impliedly conceded that their vehicles have—since the date of purchase—remained fit for their ordinary purpose, can plaintiffs state a cause of action in breach of implied warranty? We conclude they cannot, and that the superior...
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Opinion In this case we hold that recent statutory amendments adopted the burden-shifting characteristics of federal law for California summary judgment motions. William Hunter has sued multiple defendants, including asbestos manufacturers, asbestos installers, premises owners and others, alleging injuries resulting from his occupational exposure to asbestos. The court granted summar...
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Opinion Does “Three Strikes—The Legislation,” Penal Code section 667, subdivisions (b) through (i), apply to California convictions predating its March 7, 1994, effective date? 1 Four recent cases have held the law applies: People v. Anderson (1995) 35 Cal.App.4th 587 [41 Cal.Rptr.2d 474] (Anderson); People v. Reed (1995) 33 Cal....
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Opinion In this matter we issued an alternative writ of mandate to consider whether real party, the Press-Enterprise newspaper, is entitled to obtain certain records from petitioner, the City of Hemet (City), under the California Public Records Act (CPRA). (Gov. Code, § 6250 et seq.) 1 The trial court ordered disclosure of certain records; however, we conclude that real party is not entitled ...
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Opinion Appellant Calvin Jones was convicted of assault with a deadly weapon, and the enhancing allegation of personal infliction of great bodily injury was found to be true. The jury also found to be true the allegations of three prior felony convictions. The sole issue raised on appeal is whether sufficient evidence supported the jury’s finding regarding two of the alleged prior convictions. ...
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Opinion Having pled guilty to one count of embezzlement (Pen. Code, § 503), defendant appeals to challenge a victim *1387 restitution order made after a lengthy restitution hearing. Specifically, she contends that the trial court erred (1) in awarding interest on the actual losses to the victim; (2) expressly finding that she had the ability to pay for the services of court-a...
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Opinion In this action for legal malpractice, plaintiff Marshall appeals from judgment of dismissal entered after the court sustained without leave to amend the demurrer to complaint of defendants Gibson, Dunn & Crutcher, Ronald E. Gother, Anne K. Hilker, and David H. Kennedy on the ground that the action was barred by the statute of limitations. Allegations of the Complaint and Proc...
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Opinion Defendant and appellant Lester Davis (Davis) appeals from a judgment after trial by the court, in a declaratory relief action, that he was not insured under the commercial general liability policy, No. 2 95 MZX 80232301 (policy) issued by plaintiff and respondent Fireman’s Fund Insurance Company (Fireman’s Fund). The basis for the judgment was a finding of fact by the trial court ...
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Opinion E.R. Fairway Associates I et al. (collectively defendant) appeal from a postjudgment order awarding plaintiff California Housing Finance Agency (CHFA) attorney fees and costs totaling $243,808.68. In awarding attorney fees the trial court concluded: (1) CHFA was the prevailing party in the action for breach of contract (Civ. Code, § 1717); and (2) *1511 various agreem...
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Opinion Plaintiff Betty Schall sued her employer, defendant Lockheed Missiles and Space Company, Inc., for sexual harassment. During in limine proceedings, the trial court ruled plaintiff incompetent to testify about the harassment because her only memory of the behavior occurred after she had been hypnotized by her therapist. Plaintiff then conceded that she had no evidence of...
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*1499 Opinion On August 5,1991, plaintiff Philip Stanchfield filed suit against Hamer Toyota, Inc., and other defendants (referred to collectively as Hamer Toyota) seeking damages for breach of an employment agreement and specific performance of a stock purchase agreement. His complaint also included other causes of action which are not pertinent here. The matter proceeded t...
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*1522 Opinion Plaintiff brings this action as a test case to establish the right of a construction worker on public works projects to recover prevailing wages from his employer. While we agree with the plaintiff that common law contract causes of action are generally available to the employee, we find that plaintiff has not established a right to recover under the facts of this c...
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Opinion The Price Company (Price) appeals a judgment in condemnation. The trial court excluded from jury consideration evidence of access impairment as an element of severance damages. Price asserts prejudicial error by the exclusion of the evidence. Price owns a 9.205-net-acre parcel of land (Price Land) in the City of Santee, California, located at the southeast comer of Cuyamaca S...
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Opinion A subcontractor on a public works project sued the general contractor for money claimed due. The subcontractor also *1657 sued the surety on the contractor’s payment- and stop-notice release bonds. At trial, the subcontractor asserted the surety could not raise the contractor’s defenses and setoffs because the contractor was in corporate suspense because of nonpayment...
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Opinion In this case we hold an appeal from an order made pursuant to Probate Code section 7241, subdivision (b) for the purpose of preventing injury or loss to a person or property, does not stay enforcement of the order. Thus, while such an order may be appealable (Estate of Hammer (1993) 19 Cal.App.4th 1621, 1626, fn. 1 [24 Cal.Rptr.2d 190]), the order must nevertheless be c...
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Opinion The People appeal from the dismissal of the charge of possession of narcotics by defendant Salvador Besetta Martinez. The trial court concluded defendant’s right to a speedy trial had been violated. We affirm. Background On March 25, 1991, defendant was arrested by San Jose Police Officer Gilbert Torres, after the officer saw him and another person leave a known heroin sale location...
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Opinion In 1987 defendant pled no contest to driving under the influence (Veh. Code, § 23153, subd. (a)) and was sentenced to two years in *1615 prison. 1 Seven years later, defendant moved to vacate the judgment of conviction pursuant to Penal Code section 1016.5 on the ground that he was not advised of the possible immigration consequences of his plea. The trial ...
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Opinion A jury found appellant, Alfred Gilbert Flores, guilty of committing perjury in an application for a duplicate driver’s license. (Pen. Code, § 118.) He appeals from his conviction claiming the trial court erred in refusing an instruction which would have prevented the jury from finding him guilty unless they also found the application containing the false statements was an applicat...
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Opinion Statement of the Case On April 27,1994, an information was filed in the Tulare County Superior Court charging appellant, Robert Sierra, with three counts. In count I appellant was charged with transportation of methamphetamine in violation of Health and Safety Code section 11379, subdivision (a). Appellant was charged in count II with transportation of marijuana in violation of Health...
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Opinion Former wife appeals from a trial court order which states that former husband’s obligation to provide support for the minor daughter of the parties is to terminate no later than the daughter’s 19th birthday. Under the original Oregon judgment of dissolution, support was to continue until the daughter reached the age of 21 provided she attended school up to that time. Appellant argues that...
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*1774 Opinion Plaintiffs Henry Winig and Robert Desruisseaux appeal from summary judgments in favor of the State of California (the State) in an action for damages for personal injuries caused by a dangerous condition of public property. The alleged dangerous condition is an inadequately protected 18-inch deep excavation running parallel to and about 5 feet from the fast lane of a freeway. ...
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Opinion Joyce E. Penner appeals from a summary judgment granted to the County of Santa Barbara (County) in this action for a property tax refund. After Penner transferred real estate to a limited partnership wholly owned by herself and her adult children, the County issued a supplemental assessment increasing the property’s assessed value from $337,276 to $2.3 million She argues that the ...
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Opinion Appellant, Jose Luis Carrillo, appeals from a judgment of conviction for drug-related offenses. He contends the trial court erred in denying his motion to suppress evidence of the cocaine found in his car. He also contends the trial court erred in denying his motion to dismiss based on Wheeler (People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P....
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Opinion The superior court confirmed an arbitration award and entered judgment for plaintiff Richard Parker, including costs based on his Code of Civil Procedure section 998 offer. This was a true arbitration, however; and Code of Civil Procedure section 998 has no application. Moreover, pursuant to the parties’ agreement, defendants are entitled to a release and dismissal. Accordingly, we reve...
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37 Cal.App.4th 1720 (1995) 44 Cal. Rptr. 725 SCRIPPS MEMORIAL HOSPITAL, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. D022953. Court of Appeals of California, Fourth District, Division One. August 31, 1995. *1722 COUNSEL Weissburg & Aronson, Carol Isackson, Lowell C. Brown and Shirley J. Paine for Petitioner. Catherine I. Han...
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Opinion This purported appeal is brought by the Los Angeles District Attorney on behalf of the People from an order of the superior court sealing certain documents seized during a search of respondents’ law offices pursuant to a valid search warrant. The putative respondents are the law offices of Bauman & Rose, Lake and Levine and Donald Lake and Howard Levine, and Denise Breakman. ...
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Opinion Plaintiff Aspen Enterprises, Inc. (Aspen) sued defendants Gerald and Karen Bodge (collectively Bodge) on a promissory note secured by both real property and personal property. At the outset of the action Aspen repossessed personal property collateral consisting of an inventory of new tires. At trial, the court granted Bodge’s motion for nonsuit based on what was stipulated to be A...
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Opinion Introduction In the underlying action for ejectment, filed by plaintiff First Boston Credit Corporation, now named California Maryland Funding, Inc., defendant Wyonna Dell Lowe cross-complained to quiet title to the same property, claiming acquisition by adverse possession. Defendant has appealed from the judgment entered in favor of plaintiff, contending it is not supported ...
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*1833 Opinion Defendant Patrick Michael Hennessey pleaded guilty to attempting to dissuade a witness (Pen. Code, § 137, subd. (b)), two counts of second degree robbery (Pen. Code, § 211), two counts of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)), and six counts of possession of prohibited weapons (Pen. Code, § 12020, subd. (a)). He also admitted three firea...
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Opinion Appellants, defendants below, Jude C. DeJesus (DeJesus) and Ian S. Duncan (Duncan), appeal their convictions, after a jury trial, of one count of murder (Pen. Code, § 187 subd. (a)). With respect to the murder convictions of both appellants, the jury found true the special circumstances that the murder was intentional and carried out for financial gain (Pen. Code, § 190.2, subd. (a)(1))...
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Opinion Defendants Lisa and Dan Young accepted plaintiff Jan Ardeene Hofer’s statutory offer to compromise a personal injury action for $11,000 (Code Civ. Proc., § 998; all further section references are to the Code of Civil Procedure unless otherwise indicated) and judgment was taken in accordance with the terms and conditions stated in the offer. Plaintiff moved to vacate the judgment, ...
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Opinion Welfare and Institutions Code section 827, subdivision (a) permits juvenile court records to be inspected by certain specified persons and “any other person who may be designated by court order of the judge of the juvenile court upon filing a petition therefor.” We interpret this language to entrust to the juvenile court’s discretion whether to grant the press access to particular...
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Opinion In this appeal we consider whether common law contractual remedies are available to a purchaser of tax-defaulted real property at a public tax sale. We conclude the exclusive remedies available to such a purchaser are those provided by the Revenue and Taxation Code. Facts and Procedural Background In January 1991, Albert A. Van Petten attended a public auction of tax-def...
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Opinion This is an action between two attorneys concerning attorney fees. The fees were earned by work under a contingent fee contract in a personal injury action in which Joseph E. Di Loreto represented Ann M. O’Neill. Defendant Brian Shumake assumed representation of Ms. O’Neill after Di Loreto secured a judgment in her favor. The trial court directed a verdict in favor of Di Loreto on ...
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Opinion If the technological means exist, must a manufacturer improve its product to guard against injuries resulting from unforeseeable and accidental product misuse in order to stave off potential tort *63 liability? We conclude as a matter of policy that despite the means to build a safer product, a manufacturer owes no duty to prevent injuries resulting from unforeseeable...
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Opinion I. Introduction This appeal is from an order denying a petition to compel arbitration and refusing to stay the action until the dispute had been arbitrated. Because there was no evidentiary basis for the court’s order, we reverse. II. Background Plaintiff, Ronald L. Owens, filed an unverified complaint against defendants, Intertec Design, Inc., and Leon Kopyt, for: breach of an em...
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Opinion The People and defendant Ronnie Lee Nobleton both appeal from the judgment entered following defendant’s plea of guilty to possession of a firearm by a felon and admissions that he suffered a prior felony conviction and served a prior prison term. Their respective contentions are as follows: (1) the People contend the trial court erred in refusing to sentence defendant pursuant to Penal...
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Opinion On March 4, 1993, defendant William Henry DeRouen burglarized two vacation homes, two trailers and a shed in Calaveras County. He was convicted of four counts of first degree burglary, one count of second degree burglary, and one count of receiving stolen property. On appeal, he contends there was insufficient evidence the vacation homes or trailers were “inhabited dwellings” to support...
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*109 Opinion Petitioner Gregory Zazueta appeals from a judgment of dismissal after the trial court sustained a demurrer without leave to amend to his petition for writ of mandate. His petition sought to overturn an arbitration award which upheld the termination of his employment as a public safety officer with respondent County of San Benito Sheriff’s Department. On appeal, petit...
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Opinion In the first appeal, we concluded that appellant Sim J. had not been adequately advised of his privilege against self-incrimination at the time he admitted a violation of Welfare and Institutions Code section 871, subdivision (b) (felony escape by force from juvenile custody) and a violation of Penal Code section 594 (misdemeanor vandalism). (In re Sim J. (May 26, 1994)...
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Opinion We hold here that a mechanic’s lien claim recorded more than 90 days after completion of the work of improvement is ineffective notwithstanding a later filed notice of completion which erroneously recites a completion date postdating the claim of lien. As we read the applicable statutes, 1 a valid notice of completion serves to shorten the lien-claim filing period. An i...
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Opinion Adamson Gbadebo-Soda appeals from the judgment entered on a jury verdict finding him guilty of burglary of Bank of America *164 under Penal Code 1 section 459 (count II) and grand theft of Union Bank in violation of section 487 (count V). Appellant does not appeal the jury convictions of receiving stolen property under section 496 (count I), burglary under section 459 (count III) or...
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Opinion In November 1992, 19-year-old Jerrold Hall, who was Black, was shot and killed by a White police officer employed by the Bay Area Rapid Transit District (BART). The underlying litigation was commenced against BART by Mr. Hall’s parents, Cornelius and Rose Mary Hall (the Halls), who seek damages for wrongful death and for civil rights violations made actionable by the Bane Act (Civ. Code...
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Opinion Alan Baughman appeals from the judgment after jury verdict in favor of respondents, the State of California et al. 1 Baughman’s suit states that respondents wrongfully destroyed floppy computer disks containing his research while they searched premises in which he rented space pursuant to a search warrant describing various computer hardware and software. The warrant did not describe ...
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Opinion Vince Lombardi is reputed to have said “Winning isn’t everything; it’s the only thing.” These words may have been in defense counsel’s mind when he made his closing argument to the jury. He warned the jurors that a verdict in favor of plaintiff could result in the loss of social services. Counsel took Lombardi’s words too literally. That is why he loses for winning. For ...
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Opinion Statement of the Case Annie Alexander, acting warden of the Correctional Training Facility at Soledad, appeals from an order of the trial court granting Craig Carr’s petition for a writ of habeas corpus, vacating an order revoking his parole, and ordering his immediate discharge from custody. (Pen. Code, § 1507. 1 ) She claims the court erred in concluding that the Department of C...
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Opinion I. Introduction In this case we modify a $13,971,830 judgment in a class action which challenged the assessment of fees by First Interstate Bank (FICAL) against breaching credit card customers who failed to make minimum monthly payments when due or exceeded their credit limits. We reduce the judgment by $9,076,304, which represents the amount the trial court found to be net r...
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Opinion In this appeal, the defendants and appellants, County of Los Angeles, Michael D. Antonovich, an elected member of the Los Angeles County Board of Supervisors (collectively, the County defendants), Western Jewelry Mart Joint Venture (Joint Venture), Kirkor Suri and Jak Sukyas (collectively, the WJM defendants) seek to overturn a seven-figure judgment, including both compensatory an...
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Opinion Defendant Twig Gerald Smith appeals from the denial of his “motion to determine arrearages.” He claims he is entitled to a credit on his child support obligations for withholdings apparently appropriated by his absconded bankrupt employer. After our initial examination of the record, we requested supplementary briefing from the parties regarding the statutory basis for the motion,...
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*312 Opinion Plaintiff Leslie Scott (Scott) appeals from a summary judgment entered in favor of CIBA Vision Corporation (CIBA). CIBA manufactures and distributes a contact lens cleaning product called AOSEPT. The trial court determined that Scott’s products liability claims against CIBA, based on inadequate warnings on the AOSEPT bottle, were preempted by the Medical Device Amend...
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Opinion After the denial of his motion to suppress, defendant Scott Monroe Fisher pled guilty to felony possession of methamphetamine, a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and the misdemeanor of being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)). Defendant also admitted that he had a prior conviction of a serious or violent fe...
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Opinion This is an action arising under the Song-Beverly Consumer Warranty Act, Civil Code section 1790 et seq., commonly referred to as California’s “lemon law” (hereinafter, the Act). The sole issue on appeal is whether the trial court prejudicially erred in instructing the jury that the lessee of a vehicle “who justifiably rejects or revokes acceptance of a vehicle must do so within a ...
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*381 Opinion Marcos Ortiz appeals following a jury conviction of second degree murder with a knife. 1 He contends the trial court committed Wheeler 2 error and erroneously admitted statements made by the victim, Evelia Juarez. Appellant claims admission of the victim’s statements violated People v. Hamilton (1961) 55 Cal.2d 881 [362 P.2d 473] (Hamilton) (revd. on other grounds in P...
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Opinion Introduction In November 1986, San Mateo County voters enacted Measure A, “The Coastal Protection Initiative,” amending the county’s local coastal program, *532 making further amendments to the local coastal program essentially conditional upon voter approval (with limited exceptions) and providing that the county board of supervisors, by a four-fifths majori...
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Opinion The narrow issue presented in this mandamus proceeding is whether a trial court’s long-established statutory authority to declare an alternative felony, or “wobbler,” a misdemeanor under Penal Code 1 section 17, subdivision (b) was abrogated by the recently enacted “three strikes” law. 2 We conclude it was not and accordingly deny the People’s writ petition. ...
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Opinion David and Nancy Stecks brought an action for libel per se, slander per se, and intentional infliction of emotional distress against psychologist Candace Young. The action concerned an oral and a written report *369 Young made to the child protective services regarding the Steckses and others in which she accused these individuals of child abuse and participation in cult activities. Th...
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*450 Opinion I Doris and Victor Hardin married in 1961. On June 28, 1969, Victor walked out of their apartment and although he and Doris continued their economic relationship, saw each other often, and communicated regularly, they eventually dissolved their marriage. None of the above is so unusual. Many couples experiencing marital problems stop living in the same resi...
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Opinion This case presents issues regarding the application of Penal Code section 832.7, Evidence Code section 1043, and the constitutional right to privacy to a novel factual situation. Specifically, we are asked to determine whether, when a former police officer testifies against a police department in a lawsuit, the law enforcement agency which employed the officer may allow its lawyer...
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*430 Opinion Convicted by jury of assault with a firearm (Pen. Code, § 245, subd. (a)(2); count I; statutory references, unless otherwise noted, are to the Penal Code) and discharging a firearm at an occupied building (§ 246; count II) appellant contends: (1) the intent required by section 246 is “the intent to strike the building”; (2) imposition of the upper term on count II was an abuse of...
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*458 Opinion Introduction Appellant Patricia M. Edwards (Wife) appeals from an order after a hearing on her order to show cause seeking enforcement orders against respondent Leslie E. Edwards (Husband) arising from their 1981 marital dissolution judgment. Wife sought orders to enforce a provision of that judgment which stated each party would maintain a will giving one-...
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Opinion Florentino Frank Dominguez was convicted by jury of second degree robbery and carjacking, both with the use of a firearm (Pen. Code, §§211, 215, 12022.5), and the court found true allegations of a prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)), and of three prior convictions for which he had served a separate prison term (Pen. Code, § 667.5, subd. (b)) and that a...
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*467 Opinion The petition in this case seeks reversal of summary adjudication granted by the trial court in favor of attorney defendants as to the professional negligence and breach of fiduciary duty counts contained in a broader action by certain limited partners against attorneys and their client. The lawyers, Sheppard, Mullin, Richter & Hampton and Christopher B. Neils (hereaf...
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38 Cal.App.4th 834 (1995) 45 Cal. Rptr.2d 322 THE PEOPLE, Plaintiff and Appellant, v. $1,930 UNITED STATES CURRENCY, Defendant; JOSE MARTINEZ TREJO, Claimant and Respondent. Docket No. B082486. Court of Appeals of California, Second District, Division Seven. September 21, 1995. *836 COUNSEL Gil Garcetti, District Attorney, Patrick D. Moran, Richard De La Sota and Dirk L. Hudson, Deputy District A...
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Opinion Appellant Robert Lee Young appeals a judgment of May 25, 1994, which requires him to pay $19,507.53 in restitution to the victim of his crime, P.C. Sacchi, Inc. We conclude the trial court properly imposed this restitution requirement upon appellant, despite the fact that it was not included as part of the initial sentence, execution of which was suspended, but rather was imposed as a c...
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Opinion I. Introduction The District Attorney for the County of Los Angeles appeals from an order determining that Sydnia Carole Salas was not required to pay interest on child support arrearages owed by her for the support of her minor child. We reverse. II. Background On April 14, 1993, a judgment was entered ordering Ms. Salas to pay $400 and $100 per month for child support and care costs res...
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Opinion In this appeal, we hold that freedom of speech is unconstitutionally abridged by a statute which requires a proponent of an initiative measure to certify that no dedicated appropriation has been included in the measure in exchange for a campaign contribution for purposes of qualifying the measure for the ballot. Senate Bill No. 424, 1991-1992 Regular Session (Stats. 1991, ch....
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Opinion Ralphs Grocery Company (Ralphs or the employer) seeks a writ of review after the Workers’ Compensation Board (the Board) granted Dawn R. Lara’s (Lara) petition for reconsideration and awarded her a 10 percent penalty under Labor Code 1 section 5814 for Ralphs’s “unreasonable” delay in providing medical treatment and temporary disability benefits. Lara had requested a se...
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Opinion Plaintiff Heritage Cablevision of California, Inc., sued defendant Ron Pusateri in the municipal court for civil liability under Penal Code section 593d (unauthorized connection to cable television system) 1 and conversion. The trial court rendered judgment for defendant following a court trial. It disposed of the section 593d cause of action by granting defendant’s pretrial motion fo...
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Opinion A jury convicted appellant Rodney Allen Wrice of two counts of first degree burglary and one count each of felony driving a vehicle without consent, misdemeanor resisting arrest, felony reckless driving while evading a police officer, and misdemeanor reckless driving. The information alleged enhancements for one prior serious felony and two *770 separate prior prison terms. During tri...
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*750 Opinion This case presents the issue of whether a de facto parent has standing to challenge the denial of reunification services or contest the reasonableness of services offered. Because a de facto parent, like a stepparent, has no right to reunification services, we conclude that a de facto parent lacks standing to raise reunification issues. Factual and Procedural Background Cliff...
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Opinion A patient died from the complications of an undiagnosed ectopic pregnancy after seeking medical care from respondent Hosni Nagib Fahmy, M.D. The Medical Board of California, Division of Medical Quality (the Medical Board) took disciplinary action against Fahmy as a result of the patient’s death. The discipline imposed by the Medical Board was overturned by the trial court on a lac...
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Opinion Plaintiff appeals from a judgment of dismissal entered after he failed to furnish security as ordered by the superior court pursuant to the vexatious litigant statute. (Code Civ. Proc., § 391 et seq.; further statutory references to sections of an undesignated code are to the Code of Civil Procedure.) Plaintiff contends the finding he is a vexatious litigant is not supported by th...
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Opinion Plaintiffs and appellants Ruth Hightower (Hightower), Alicia Flowers (Flowers) and Coralene Hayes (Hayes) (sometimes collectively referred to as Hightower) appeal a judgment following a grant of judgment on the pleadings in favor of defendant and respondent Farmers Insurance Exchange (Farmers). The issues presented are whether exhaustion of administrative remedies under the C...
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Opinion Plaintiff and appellant Allstate Insurance Company (Allstate), a corporation, appeals a judgment denying its prayer for declaratory relief. Defendant and appellant Daniel Gonzalez (Gonzalez) cross-appeals the judgment. The essential issues presented are whether Gonzalez’s uninsured motorist claim against Allstate is barred by the statute of limitations or by his unreason...
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Opinion Larry Jack Vacca appeals from the judgment entered following a jury trial that resulted in his conviction of assault with a firearm on a peace officer in which he personally used a firearm (Pen. Code, §§ 245, subd. (d)(1), 12022.5). 1 He contends: “I. The trial court erred by failing to exercise its discretion as to whether to impose the firearm use enhancement^] [^Q II...
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Opinion Defendant was convicted of possession and cultivation of marijuana and possession of illegal firearms. He argues the guns were *868 recovered as fruit of a coerced confession and, thus, should have been suppressed. We agree and reverse the firearms convictions. Statement of Facts Based upon information from defendant’s estranged wife, Sheriff’s Detective Smiley obtained a warran...
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Opinion Penal Code section 790 is a venue statute. It provides that jurisdiction of a criminal action for murder may be in one of three counties: where the fatal injury was inflicted, where the injured party dies, or where the body was found. Here we hold that the constitutional right of vicinage is satisfied if the trial is held in any of the three counties specified in Penal Code section 790. *8...
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*880 Opinion A person is injured when a train hits his truck. In an effort to mitigate its liability for damages the railway sues the injured person’s employer under the Americans With Disabilities Act. (42 U.S.C. § 12101 et seq., hereinafter ADA.) Does the railway have standing? No. Facts John Romines was employed by Hadley Auto Transport. He was injured when a train operated by the Vent...
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Opinion Petitioner seeks a writ of prohibition directing the superior court to set aside its order denying his Penal Code section 995 1 motion to dismiss an allegation of prior felony convictions. *904 Petitioner, charged with two prior felony convictions under section 667, subdivisions (b) through (i) 2 , popularly known as the “Three Strikes” law, mak...
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Opinion American President Lines, Ltd. (APL), paid over $4.2 million in additional fees assessed by the Department of Motor Vehicles (DMV), for registering its fleet of truck trailers during 1989-1991. This appeal and related writ petition question the DMV’s determination of those fees and place under scmtiny the procedures for challenging them. We conclude the DMV wrongly assessed additi...
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*894 Opinion Appellants are three of the several thousand plaintiffs 1 seeking relief for injuries resulting from the alleged airborne release of hazardous material stored at General Chemical Company (GCC) in Richmond, California. The present appeal is from the judgment of dismissal as to defendant and respondent Contra Costa County (the County) entered after the court...
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Opinion Petitioners Las Tunas Beach Geologic Hazard Abatement District and the board of directors thereof (the District) seek a writ of mandate directing the trial court to vacate its order denying the District’s motion for summary judgment and to enter instead an order granting the motion. The essential issue is whether real party in interest City of Malibu (the City) was entitled i...
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Opinion In this case we examine the specific terms of the insurance policies before us to determine whether a third level insurer “drops down” to assume the obligations of a second level insurer when the second level insurer becomes insolvent. We agree with the trial court that the third level policy incorporates an endorsement that unambiguously precludes it from “dropping down" to provi...
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Opinion Appellants William M. and Tona E. Moores brought this action for declaratory and injunctive relief, claiming that they had an easement over property owned by respondent William D. Walsh. Following a court trial, judgment was entered in favor of respondent. We affirm. I. Background In 1993, appellants purchased a 40-acre parcel of unimproved land (the Moores parcel) ...
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Opinion I Introduction A jury convicted appellants Wallace Arthur Bills and Maurice Frederick Alston of first degree murder, robbery, and burglary, with the special circumstances that the murder was committed in the course of robbery and burglary, and with enhancements that each personally inflicted great bodily injury and that Alston personally used a knife. The prosecution sou...
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Opinion Defendant Mid-Century Insurance Company appeals a portion of the judgment favoring plaintiff Gary Hughes on his third party complaint against Mid-Century for benefits under its liability insurance policy issued to Hughes’s judgment debtor. Mid-Century contends the superior court erred in concluding the policy’s language involving supplementary cost payments was ambiguous and thus ...
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*998 Opinion The Retirement Board of the Santa Barbara County Employees’ Retirement System appeals a judgment in administrative mandamus that directs it to grant a disability retirement to Fairy Levingston. The trial court’s findings are final. The board does not have a second opportunity for another hearing. (Code Civ. Proc., § 1094.5.) We affirm. Facts On July 25, 1991, Fairy Levingston...
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Opinion Summary The principal issue on appeal in this eminent domain proceeding is whether the defendant landowner properly disclosed the valuation evidence he offered at trial. We find that he did not. Plaintiff and appellant Padre Dam Municipal Water District (Padre) acquired 4.2 acres of land owned by defendants and appellants Joseph M. Burkhardt et al. (Burkhardt). 1 Prior to trial Bu...
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Opinion On this appeal we are asked to determine the statute of limitations for an action by a bank against a former customer for repayment where the bank honored a check drawn by the customer but neglected to debit the customer’s account. We conclude the applicable limitations period for such an action is three years from the time the bank discovers its mistake, pursuant to Code of Civil...
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Opinion David Duran Jimenez was charged with failing to appear on a felony charge under Penal Code section 1320.5, 1 and the trial court dismissed the action under section 995. The district attorney appeals, contending it presented sufficient evidence to justify a trial of the matter. We reverse. *798 Jimenez was convicted on felony drug charges and we affirmed. A...
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Opinion This medical malpractice case involves the application of Code of Civil Procedure section 667.7 (all further references to undesignated sections are to the Code of Civil Procedure). Section 667.7 was enacted as part of the Medical Injury Compensation Reform Act of 1975 (MICRA). The section allows a medical malpractice judgment awarding “future damages” of at least $50,000 to be paid on a ...
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*1223 Opinion Today we are asked to determine whether the superior court commissioner in a juvenile delinquency matter has authority to commit a minor to the California Youth Authority (CYA) without a written stipulation of the parties litigant or, in the alternative, whether by their conduct the parties could be held to have impliedly consented to the commissioner sitting as a t...
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Opinion I Ronald and Lori L. Padilla’s marriage ended in 1990. Pursuant to a written agreement incorporated into their interlocutory decree, Ronald was ordered to pay $550 in monthly child support. In 1993, after new child support guidelines were enacted and the visitation schedule changed. Lori filed an order to show cause seeking an increase in child support and a contribution towa...
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*1201 Opinion Appellant Linda Romero filed this discrimination action against her current employer, respondent American President Lines, Ltd. (APL). Appellant contends she should have received certain internal transfers or a promotion to similar positions within APL. Appellant claims the failure to grant her these other positions constituted discrimination based upon her sex, her...
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Opinion Mohammed Chowdhury died in an automobile accident when his vehicle was broadsided in an intersection. The driver of the other vehicle failed to stop before proceeding through the intersection even though the traffic signals were inoperative in all directions due to an area-wide electrical power outage. The decedent’s wife and daughter sued the City of Los Angeles (the City) for failing ...
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Opinion This appeal is from a judgment in favor of defendants following the grant of their motion for nonsuit in a legal malpractice action. We conclude that in granting a nonsuit, the trial court erroneously mled as a matter of law on an issue which, under the circumstances of this case, is one of fact: whether defendants breached the professional standard of care by adequately and timel...
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Opinion The trial court ordered a referendum measure removed from the November 1994 Merced County election ballot. Proponents of the referendum measure appealed and sought a stay in this court to permit the measure to remain on the ballot while the appeal was pending. We denied the stay on August 11, 1994. We now affirm the judgment. Facts and Procedural History The underlying f...
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Opinion In People v. Wims (1995) 10 Cal.4th 293 [41 Cal.Rptr.2d 241, 895 P.2d 77] our Supreme Court examined both the nature of the sentence enhancement for personal use of a deadly or dangerous weapon required by Penal Code section 12022, subdivision (b), and also the standard for reviewing instructional error. 1 In this case we undertake the same examina...
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Opinion Appellant Ord & Norman (Ord), a law firm, contends the trial court wrongly granted summary judgment against Ord’s claims that the Surplus Line Association of California (SLA) negligently breached a duty of care owed to Ord regarding its purchase of insurance from a foreign, nonadmitted insurer that later became insolvent. We find no breach of duty on the part of SLA and therefore ...
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Opinion After the trial court denied Major Lee Thomas’s motion to suppress evidence obtained in a warrantless search of his “residence”—a cardboard box located on a public sidewalk—Thomas pled no contest to one count of receiving stolen property. He now appeals, contending he had a reasonable expectation of privacy in his box and that his motion should have been granted. We affirm. Facts Ea...
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Opinion Plaintiffs and appellants Naomi and Jeolfa Campanano appeal from a summary judgment entered against them and in favor of defendant and respondent California Medical Center (Hospital). We are asked to determine the accrual date of a cause of action for “bystander” negligent infliction of emotional distress. We conclude, as a general rule, that the cause of action accrues at the tim...
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Opinion On October 5, 1993, a jury convicted appellant Sally Ann Whitham of murdering 11-year-old Denise Z. by the administration of poison. (Pen. Code, 1 §§ 187, subd. (a); 190.2, subd. (a)(19).) Whitham was also convicted of holding Denise and her sister, Crystal Z., in involuntary servitude (§ 181) and of physically and sexually abusing both girls (§§ 273a, subd. (1) [now § 273a, former su...
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Opinion Defendant Carla Jean Glade appeals from the entry of summary judgment in favor of plaintiff Martin Glade as trustee of the Martin and Sally Glade Revocable Family Trust, along with the denial of her motion for reconsideration of that judgment. For the reasons set forth below, we hold that the summary judgment should have been denied by the trial court upon reconsideration. Fa...
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Opinion We dispose of two related appeals in this opinion. In appeal No. A066477, River Bank America (River Bank) appeals from a summary judgment granted in favor of defendants Sanford N. Diller and Helen P. Diller (individually and as trustees of the DNS Trust) and Prometheus Development Company, Inc. (Prometheus Development). In the underlying action, River Bank sought to enforce guaran...
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Opinion Appellants Marcellus L. Joslyn, Roland M. Joslyn, Marcia Joslyn Sill, Leslie Poleri, Lysbeth Drenick Lam and David Drenick are beneficiaries of the will of their grandmother, Alice Joslyn. They appeal from judgment determining that respondent Helen Melayne Davis is also a beneficiary under the will by virtue of the fact that she is the adopted daughter of Alice N. Joslyn’s son, Ma...
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Opinion I. Introduction In this case we hold that declarations on a special motion to strike a SLAPP suit (strategic lawsuit against public participation) (Code Civ. Proc., § 425.16) may not include averments on information and belief. We affirm a judgment dismissing a defamation action by A. Peter Evans against 10 individual defendants for failure to establish a probability he would...
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*1343 Opinion Cross-complainants and appellants Arthur Young & Company, Richard E. Lamping, Thomas W. Blumer and Ernst & Young (collectively Young) appeal an order dismissing their cross-complaint against attorneys James B. Helmer, Jr., and Robert L. Neff, Jr. (Helmer & Neff), cross-defendants and respondents, pursuant to a “good faith” settlement. The essential issue presen...
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*1528 Opinion The only issue on appeal is whether a personal firearm use enhancement (Pen. Code, § 12022.5) applies to a conviction of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b).) 1 The answer is yes for the reasons stated below, so we will affirm the judgment. In the early morning hours of August 1, 1994, defendant Matthew Julius Joachim confronted the victim Scott...
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Opinion I Petitioner seeks an extraordinary writ, pursuant to rule 39.IB of the California Rules of Court, to vacate the order of the respondent court directing that a selection and implementation hearing be held pursuant to Welfare and Institutions Code section 366.26 to consider a permanent plan for petitioner’s minor child. 1 The petition for writ is substantively mea...
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*1536 Opinion This appeal raises the question of whether a standard choice-of-law provision (which states that a contract shall be governed by the “laws” of a particular jurisdiction) incorporates the statutes of limitations of the chosen state. We hold that it does and further conclude that the choice-of-law provision in this case requires the application of a foreign statute of...
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Opinion Appellant, Timothy Jerome Mack, shot at two uniformed sheriff’s deputies. He was convicted by a jury of two counts of attempted murder with the personal use of a firearm (Pen. Code, §§ 664/187, subd. (a), 12022.5, subd. (a)) 1 , two counts of assault with a firearm upon a peace officer, with the personal use of a firearm (§§ 245, subd. (d)(1), 12022.5, subd. (a)), and one count of pos...
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Opinion This case illustrates the wisdom of the commonly-used phrase, “Timing is everything in life.” In this instance, appellant Bartholemew Cargill was arrested in the possession of cocaine base about 10:15 p.m. on March 7, 1994. That rather uneventful statistical fact becomes more important in light of the action at 2:45 p.m. on the same day in Sacramento when the Governor signed and f...
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Opinion When a defendant enters a conditional plea of guilty, what must a trial court do to comply with Penal Code section 1192.5? Is counsels’ stipulation to a factual basis for the plea sufficient? And if not, is the error harmless? These are the issues before us in this case. Appellant Mickey Mickens appeals his conviction, contending that he should have been allowed to withdraw h...
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Opinion In this case, we hold that a trial court is not authorized to allow a child support hardship deduction to a noncustodial parent based on that party’s voluntary support of nonadopted children of his spouse in a subsequent marriage. Factual and Procedural Summary This case is presented to us on an agreed statement, pursuant to California Rules of Court, rule 6. Through this method, co...
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Opinion This case concerns the California Department of Health Services’ (DHS) approval of an environmental impact report (EIR) and license for the construction and operation of a low-level radioactive waste (LLRW) disposal facility at Ward Valley, San Bernardino County, in the Mojave Desert. Petitioners, the Fort Mojave Indian Tribe (Tribe) and three nonprofit corporations, 1 ...
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Opinion Insurance Code section 2071 requires that all fire insurance policies include a provision requiring disputes as to the amount of a loss to *1650 be arbitrated by a panel composed of “disinterested” appraisers selected by the insurer and the insured. State Farm General Insurance Company instead placed in its policy a provision describing the party-designated appraisers...
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Opinion This appeal involves issues of coverage for members of a joint powers insurance authority. The matter arises from a declaratory relief and breach of contract action seeking a determination of a joint powers authority’s duty to defend and indemnify a member city against a lawsuit for damages caused by the enactment of an anti-noise ordinance. Defendant and appellant Southern C...
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Opinion Raising a variety of sentencing errors, a criminal defendant appeals from the judgment entered after he pleaded guilty to receiving stolen property. Finding merit in some of his contentions, we reverse part of the judgment. Factual and Procedural Background A felony complaint charges the defendant with violating Penal Code section 496 1 by receiving and holdin...
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Opinion In this case, a case where the facts border on the ridiculous, we address the recurring legal issue of whether the trial court had jurisdiction to proceed where, despite appellant’s request, no verified complaint was filed pursuant to Vehicle Code section 40513, subdivision (a). *Supp. 3I. Facts On January 2, 1994, appellant was arrested for failing to wear a safety helmet while operating ...
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Opinion At the time of the proceedings at issue in this appeal, Code of Civil Procedure section 664.6 provided; “If parties to pending litigation stipulate, in writing or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” (Stats. 1981, ch. 904, § 2, p. 3437.) (All subsequent statutory referen...
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Opinion This is a dispute between aunts over the custody of an orphaned child. After the juvenile court declared the minor a dependent, it awarded temporary custody of the child to the paternal aunt and her husband. Despite mother’s nomination of the maternal aunt as the minor’s guardian, maternal aunt was only allowed “relative standing” in the juvenile court proceedings. The maternal aunt appea...
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Opinion Defendant Michael Allen Bradford was charged by information with the following offenses: Count Violation I Cultivation of marijuana (Health & Saf. Code, § 11358) II Possession of marijuana for sale (Health & Saf. Code, § 11359) HI Possession of a deadly weapon (Pen. Code, § 12020, subd. (a)) *1736 IV Vehicle theft (Veh. Code, § 10851, subd. (a)) ...
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Opinion Plaintiffs and appellants Alameda County Land Use Association et al. 1 appeal the dismissal of their action for injunctive and declaratory relief after the demurrer of defendants and respondents City of Hayward et al. 2 was sustained without leave to amend. They contend the trial court erred in ruling their action was not ripe because they had not been injure...
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Opinion MASTERSON, J. Defendant Daniel Dent entered pleas of no contest to two “wobbler” offenses which the trial court found to be misdemeanors under Penal Code section 17, subdivision (b)(1). 1 The People appeal from the ensuing judgment, contending that the “three strikes law” 2 abrogated the trial court’s discretion to declare wobbler offenses to be misdemean...
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Opinion Apprehended in a car containing over 32 kilograms of cocaine, Donato Pena Meza and Rosario Molina Labrada were convicted of possessing cocaine for sale (Health & Saf. Code, § 11351, subd. (a); all statutory references are to the Health and Safety Code unless otherwise specified) and transporting cocaine (§ 11352, subd. (a)). The jury also found true an allegation the cocaine weigh...
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Opinion Petitioners Ernest P. Mansour and the law firm of Mansour, Gavin, Gerlack & Manos Co. L.P.A. (MGGM), Sue Anna Cellini and Emil Askew separately moved to quash service of summons for lack of personal jurisdiction. The superior court denied each motion and the parties have petitioned this court to overturn the superior court’s rulings. Since each petition arises from the same case a...
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*1713 Opinion Plaintiff was injured as a result of the absence of a “point of operation guard” on the pasta machine she was operating in the course of her employment for defendant. She brought a civil action for damages against defendant. Defendant moved for summary judgment on the ground that plaintiff was limited to workers’ compensation. Defendant asserted that Labor Code section 4558, the...
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Opinion Appellants Heriberto Fuentes, Jr., Robert R. Villa, and Ronald R. Jones, police officers employed by the City of Alameda (appellants or the officers), brought an action for malicious institution of a civil proceeding (commonly referred to as “malicious prosecution”) against respondents Virlee Berry (Berry), her husband Edward Berry, and her sister *1803 Betty Williams...
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Opinion Rodney D. appeals from orders issued at the dispositional hearing of a dependency proceeding denying him placement of his six children. In this opinion, we conclude the court failed to apply Welfare and Institutions Code1 section 361.2, subdivisions (a) and (b), the proper statutory provision to determine whether the children should have been placed with Rodney. We further decline to impl...
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Opinion Joseph Caprai, an employee of appellant Southern California Permanente Medical Group (employer), was seated as a juror in the case People v. Kwee (Super. Ct. San Bernardino County, 1994, No. RCR-21654). After Caprai was seated as a juror, he discovered that the employer’s jury duty policy was to pay him only for those days he actually served as a juror. Juror Caprai complained to the co...
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Opinion Effective in 1994, the Judicial Council promulgated rules of court allowing electronic recording of superior court proceedings, despite *18 a statutory scheme authorizing official shorthand reporting of these proceedings and the Legislature’s rejection of legislation authorizing electronic recording. (See Cal. Rules of Court, rules 33(e), 891, 892, 980.3.) As rules of...
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Opinion I. Introduction This is an appeal from an order appointing a successor receiver to bring property owned by appellants into compliance with the San Francisco Municipal Code. Appellants appealed the original order appointing a receiver and this court upheld the same in an earlier decision. Appellants now renew their challenge upon the original receiver’s resignation and trial c...
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*10 Opinion In this personal injury action, plaintiff Patrick Connelly (Connelly) sued defendant Mammoth Mountain Ski Area (Mammoth) after colliding with a ski lift tower. In granting summary judgment for Mammoth, the trial court rejected Connelly’s claim that Mammoth improperly padded the tower; instead, the court found the collision with the tower to be an obvious, avoidable an...
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39 Cal. App. 4th 84 (1995) 45 Cal. Rptr. 2d 859 JOHN E. HUPP, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, COUNTY OF SANTA BARBARA et al., Respondents. Docket No. B089385. Court of Appeals of California, Second District, Division Six. October 18, 1995. *85 COUNSEL John E. Hupp, in pro. per., for Petitioner. Stephen Shane Stark, County Counsel, Martin G. McKenzie and David Allen, Deputy Cou...
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39 Cal. App. 4th 100 (1995) 45 Cal. Rptr. 2d 874 GARY LINCOLN et al., Plaintiffs and Respondents, v. MARK A. SCHURGIN et al., Defendants and Appellants. Docket No. B050676. Court of Appeals of California, Second District, Division Four. October 19, 1995. *101 COUNSEL Lurie & Zepeda, Bruce J. Lurie and Paul B. Beach for Defendants and Appellants. Howrey & Simon, James W. Mercer, Kathryn M....
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Opinion This case involves a suit brought by nine low-income renters against defendants the U.D. Registry, Inc. (UDR) and its president Harvey Saltz for alleged violations of the state and federal statutes that govern the activities of consumer credit reporting and investigative agencies. Both sides appeal from a judgment granting relief to plaintiffs Ruth Cisneros and Rudine Pettus on th...
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Opinion Plaintiffs own and reside on real property which lies south of the San Benito County Fairgrounds (hereafter the fairgrounds). Defendant *63is the governmental entity which owns and operates the fairgrounds. Defendant began utilizing the fairgrounds for non-fair-time motorcycle races in the mid-1980’s. Plaintiffs complained about these races, and they became increasingly annoyed by noise a...
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Opinion Petitioners, husband and wife, seek a writ of mandate directing the superior court to set aside an order overruling their demurrer to the first, second and third causes of action set forth in real party’s second amended complaint. Code of Civil Procedure, 1 section 340.1 extends the statute of limitations for a civil action based on childhood sexual abuse. We are asked to determine ...
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Opinion The issue in this case is whether a law firm must be disqualified as counsel in a lawsuit after employing the retired judge who had presided over the action and had received ex parte confidences from the opposing party in the course of settlement conferences. We conclude that screening procedures are not sufficient to preserve public trust in the justice system in these circumstan...
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Opinion I. Introduction Plaintiff, Steven L. Re, appeals from a judgment on his complaint against his sister, defendant, Pamela Ann Re, 1 for partition of two parcels of real property which they had received by grant deed as joint tenants with their *94 mother, Jane Re Norman. 2 The sole contention on appeal is the trial court erred in determining the effect of a grant deed to Pamela wh...
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*109 Opinion Introduction Kenneth McCoy was injured at work while operating a printing press. McCoy sued, inter alia, his employer, Zahniser Graphics, Inc. To avoid the exclusivity provisions of the workers’ compensation system, McCoy relied upon Labor Code section 4558. 1 That section permits an employee to file a personal injury action against the employer when the injury results from u...
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39 Cal. App. 4th 71 (1995) 46 Cal. Rptr. 2d 8 In re the Marriage of LESLIE and NORLENE STEPHENSON. LESLIE STEPHENSON, Respondent, v. NORLENE STEPHENSON, Appellant. Docket No. D018407. Court of Appeals of California, Fourth District, Division One. September 26, 1995. *74 COUNSEL Scott B. Tepper and Robert M. Garland for Appellant. Andrew J. Parrott for Respondent. OPINION WORK, Acting P.J. Followi...
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*586 Opinion In this mandamus proceeding, Raymond Handling Concepts Corporation and the Raymond Corporation (petitioners) ask this court to prohibit dissemination of confidential discovery to counsel in other pending similar litigation. We decline to do so having concluded that the court did not abuse its discretion in the protective order it formulated to protect the discovery. Procedural ...
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Opinion Meg Garstang has petitioned this court for an extraordinary writ of mandate directing the superior court to set aside its order denying her motion to compel further answers to deposition questions. We are asked to decide whether communications disclosed during mediation sessions before an ombudsperson employed by a private educational institution are privileged. We conclude they are p...
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Opinion I Introduction Petitioner and appellant, Citizens for Responsible Development in West Hollywood (Citizens), is composed of neighbors who oppose the April 4, 1994, approval of a 40-unit low-income housing project by the City of West Hollywood (City) and the City Council of the City of West Hollywood (City Council) to be located in their neighborhood at 976-988V2 Palm Aven...
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Opinion Plaintiff Cynthia Haggard alleged that Kimberly Quality Care, Inc., and Kimberly Home Health Care, Inc. (collectively KQC) breached an implied contract to terminate her employment only for cause, and that KQC and certain employees discriminated against her on the basis of disability. A jury awarded plaintiff damages of $250,000 on her breach of contract claim, but no recovery on h...
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39 Cal. App. 4th 538 (1995) 45 Cal. Rptr. 2d 888 JANE DOE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. B094986. Court of Appeals of California, Second District, Division One. October 23, 1995. *540 COUNSEL Michael P. Judge, Public Defender, Albert J. Menaster, Verah Bradford and Alex Ricciardulli, Deputy Public Defenders, for...
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Opinion This appeal involves a dispute between lawyers for the litigants below. Plaintiffs’ counsel appeal, on their own behalf, from the *1034 court’s imposition of sanctions for the filing of a frivolous lawsuit. They allege the court’s order was unconstitutional, exceeded its jurisdiction, was defective in form, and was inconsistent with the court’s denial of sanctions to ...
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39 Cal.App.4th 691 (1995) 46 Cal. Rptr.2d 119 TERRY LANDRY, a Minor, etc., et al., Plaintiffs and Appellants, v. BERRYESSA UNION SCHOOL DISTRICT, Defendant and Respondent. Docket No. H013458. Court of Appeals of California, Sixth District. October 25, 1995. *694 COUNSEL Jessie Serna for Plaintiffs and Appellants. Rankin, Luckhardt, Vandeweghe, Landsness & Lahde and Michael C. Severian for Defenda...
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Opinion This is an appeal from a judgment terminating the parental rights of appellant father, after a selection and implementation hearing pursuant to Welfare and Institutions Code section 366.26.1 Counsel appointed for appellant filed a brief which summarized the procedural and factual background of the case, advised that no substantive issues warranting reversal on appeal could be identified,2 ...
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Opinion I. Introduction Appellant, Rhonda P., appeals from a juvenile court order terminating her parental rights to the minor, Anthony P., pursuant to Welfare and Institutions *637Code, section 366.26.1 Appellant contends the order must be reversed because the juvenile court failed to consider adequately the minor’s wishes about placement and adoption as well as neglected to provide for his ongo...
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Opinion Statement of the Case This appeal arises out of a disciplinary action taken against a deputy sheriff, Craig Calzada. After Calzada pled nolo contendere to the misdemeanor charge of receiving stolen property—a charge based upon his purchase of three items of electronic equipment from a friend of his brother-in-law—the Los Angeles County Sheriff’s Department fired Ca...
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39 Cal.App.4th 666 (1995) 46 Cal. Rptr.2d 123 ALYSON C. CONIGLIO, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant. Docket No. H013273. Court of Appeals of California, Sixth District. October 25, 1995. *670 COUNSEL Daniel E. Lungren, Attorney General, Robert R. Buell and Gregory J. Rolen, Deputy Attorneys General, for Defendant and Appellant. Hudson, Martin, Ferr...
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39 Cal. App. 4th 643 (1995) 46 Cal. Rptr. 2d 112 THE PEOPLE, Plaintiff and Respondent, v. JUAN ABUNDIO MEDINA, Defendant and Appellant. Docket No. F022731. Court of Appeals of California, Fifth District. October 24, 1995. *645 COUNSEL Kathleen Ann Dovidio, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant...
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Opinion Introduction In this case we hold the safeguards afforded parents by section 361 of the Welfare and Institutions Code apply just as much to supplemental petitions filed under section 387 of the same code as they do to initial petitions. We further hold that mere chronic messiness in housekeeping, absent unsanitary conditions or resulting illness or accident, is not the clear and convincin...
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Opinion Robert M. Webman, M.D., appeals from a judgment denying his petition for a peremptory writ of mandate to compel his reappointment to the medical staff of Little Company of Mary Hospital (LCMH). (Code Civ. Proc., § 1094.5.) He contends: “[I.] The denial of appellant Webman’s application for reappointment was neither reasonable nor necessary. [II.] Neither the facts as found by the ...
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Opinion American States Insurance Company (American States) appeals from a judgment ordering it to pay $487,500 on an action for equitable contribution. The trial court ruled that American States and another excess carrier, Truck Insurance Exchange (Truck), were co-insurers and share equally in the excess cost of settling a personal injury action brought against their insureds. We affirm....
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*688 Opinion Herein, we hold defendant cannot object for the first time on appeal to the imposition of a restitution fine on the ground of an inability to pay. Defendant appeals from separate judgments following (1) his plea of guilty to second degree murder and his admission of the use of a deadly weapon and the intentional infliction of great bodily injury, and (2) the revocation of his pro...
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Opinion Introduction A jury convicted defendant Ernest Angel Mora and codefendant Alex Arredondo on four counts: (1) first degree murder with the special circumstances that the murder was committed in the course of burglary and robbery, (2) burglary, (3) robbery, and (4) attempted robbery. Defendant and Arredondo (not a party to this appeal) planned an armed robbery of a drug dealer in the de...
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*949 Opinion I. Introduction This appeal arises from a tax refund action brought by Joel Neecke (Neecke) against the City of Mill Valley (City) and other defendants. 1 Neecke, on behalf of himself and others similarly situated, challenged the City’s “municipal services tax,” which was levied on real property owners beginning in fiscal year 1985-1986 and continuing...
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Opinion Eighteen tenants brought this action against their landlord, Albert Sassoon, for breach of the warranty of habitability, nuisance and other torts. A jury awarded the tenants $187,500 in general and special damages and $350,000 in punitive damages. Sassoon appeals. We affirm. *1047 Facts and Proceedings Below From December 1989 to January 1992 Albert Sassoon owned rental property c...
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Opinion The question presented in this case is whether jurors are employees within the meaning of the Workers’ Compensation Act (Lab. Code, § 3600 et seq., hereinafter the Act), or are otherwise subject to the provisions of the Act, such that the Act provides the exclusive remedy to a juror injured while on jury service. Facts Plaintiff and appellant Rosemary Waggener alleges th...
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Opinion In this case we consider whether corporate depositors may pursue causes of action against their bank for the negligent payment of forged checks when they failed to discover and report the forgeries to the bank in a timely manner. We hold that the statutory provisions of the California Uniform Commercial Code 1 preclude the depositors from asserting the forged checks aga...
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Opinion John Lucas appeals from the orders of the trial court sustaining the demurrers to his complaints against respondents, the Santa Maria Public Airport District and the members of its board of directors (District), and denying his motion for reconsideration thereof. The gist of Lucas’s complaints is that the District improperly entered into an employment contract with its general manager, ...
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Opinion James J. and Delores D. appeal a judgment under Welfare and Institutions Code1 section 300, subdivision (j), declaring their son, Joshua J., a dependent of the San Diego County Juvenile Court and removing him from their custody. James contends the trial court erred by (1) not allowing him to relitigate the basis of a prior dependency proceeding regarding Joshua’s half-sibling, and (2) admi...
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39 Cal.App.4th 1095 (1995) 46 Cal. Rptr.2d 332 SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; DEPARTMENT OF GENERAL SERVICES, Real Party in Interest. Docket No. D024039. Court of Appeals of California, Fourth District, Division One. October 27, 1995. *1098 COUNSEL Gray, Cary, Ware & Freidenrich, Merrill F. Storms, Jr., Marcel...
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39 Cal. App. 4th 1123 (1995) 46 Cal. Rptr. 2d 351 THE PEOPLE, Plaintiff and Respondent, v. JOHN EARL CARTWRIGHT, Defendant and Appellant. Docket No. C019075. Court of Appeals of California, Third District. October 30, 1995. *1129 COUNSEL Wesley A. Van Winkle, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assist...
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Opinion In 1990 the California voters passed the Proposition 132 (Cal. Const, art. X B) 1 initiative. Among other things, Proposition 132 banned the use of certain types of fishing gear along large portions of the California coastline. Appellants are fishermen adversely affected by this ban and seek to void Proposition 132. I Factual and Procedural History Ap...
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Opinion This case presents the question of whether on appeal of a proceeding conducted under Family Code section 7822 which terminates parental rights the Court of Appeal must conduct an independent review of the record when counsel for the appealing parent can find no arguable issue to raise before us. (People v. Wende (1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P....
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Opinion Westinghouse Electric Corp. attempts to state causes of action sounding in tort and breach of contract against attorneys who allegedly conspired to disclose documents covered by a secrecy agreement in a previous lawsuit. The trial court held the attempt failed. We agree. Facts and Proceedings Below Westinghouse was the defendant in a suit brought by the Southern Californ...
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Opinion Plaintiff and appellant David E. Idding (appellant) appeals from a judgment entered in favor of defendants and respondents North Bay Construction Company, Inc., R & R Maher Construction Company, Inc., McBail Company and Wes Bailey (respondents) which was entered following their successful motions for summary judgment. The sole issue presented is whether appellant’s second amended ...
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*1119 Opinion The sole question presented by this writ petition is whether running of the one-year period allowed by Government Code section 12960 for the filing of an administrative complaint under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) was tolled during the plaintiff’s minority by application of Code of Civil Procedure section 352, or...
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Opinion This case illustrates that settling an unlawful detainer action does not necessarily settle all disputes arising from a residential landlord-tenant relationship and that, in order to assure finality of litigation, the settlement documents must be comprehensive. Introduction Plaintiffs and appellants Pauline and Jesus Landeros were formerly tenants in a home owned by defendants and r...
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Opinion Introduction Plaintiffs and appellants Ohannes Tchorbadjian and Magy Tchorbadjian (plaintiffs or the Tchorbadjians) appeal from the judgment entered following *1214 the grant of the motion for summary judgment of defendants and respondents Kane & Whelan and Allan Whelan (Whelan). Plaintiffs sued Whelan for legal malpractice. Whelan’s motion for summary judgment w...
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Opinion Last April, Division Four of our court held that subdivision (a)(3) of section 1785.13 of the Civil Code 1 —which limits the information a credit agency may report regarding a tenant’s involvement in unlawful detainer actions—unconstitutionally infringes upon First Amendment rights by prohibiting the truthful reporting of public information. (U.D. Registry, Inc. ...
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Opinion By information filed in Stanislaus County Superior Court on January 13, 1994, appellant, Kathleen O’Connell, was charged with the attempted premeditated murder of her two minor children in violation of *1185 Penal Code sections 664/187 and two related counts of felony child endangerment in violation of Penal Code section 273a, subdivision (l). 1 Each count ...
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Opinion Peram, a California limited partnership, appeals the trial court’s judgment in favor of Chumash Hill Properties, Inc. (Chumash) on Chumash’s complaint against Peram, as well as appealing the court’s dismissal of Peram’s cross-complaint against Chumash. We conclude the trial court properly determined Chumash’s subleasehold survived its sublessor’s rejection of the primary lease in ...
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*1237 Opinion Jairo Carrea Estrada, Javier Ruiz-Serrano, and Raul Serrano-Ruiz appeal their convictions for conspiracy to transport cocaine, transportation of cocaine, and possession of cocaine for sale, with quantity enhancements as to Javier and Raul. 1 Estrada contends his consecutive sentence for possession for sale of cocaine was unauthorized because it merged wit...
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Opinion Statement of the Case Defendant Joel Medina Murillo was convicted of residential burglary after a court trial. The court further found true allegations that he suffered two prior serious felony convictions. Thereafter the court struck one of the prior convictions. It sentenced defendant under the three strikes law (Pen. Code, § 667, subds. (b)-(i) 1 ) and impos...
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Opinion Larry F. Brooks, Yuba County Planning and Building Services Director, and Frank D. Ellis II, the deputy director, sued individual members of the 1993-1994 Yuba County Grand Jury claiming they were defamed in two grand jury reports about the operation of their department. *1290Plaintiffs cited Penal Code section 930,1 and alleged the reports were not privileged because the grand jury retur...
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Opinion In this appeal we decide whether dismissal is mandatory or discretionary under Business and Professions Code section 6201, subdivision (a), for a lawsuit filed by an attorney against a client to recover fees if the attorney fails to give notice of the client’s right to arbitration. The trial court concluded dismissal was mandatory. Because we conclude that dismissal is discretiona...
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Opinion A jury convicted appellant of forcible rape (Pen. Code, 1 §261, subd. (a)(2); count II), forcible sodomy (§286, subd. (c); count V), and forcible oral copulation (§ 288a, subd. (c); count IX). 2 The trial court found true four felony conviction allegations (§§ 667, former subd. (a), 667.6, former subd. (a)) and imposed a 35-year state prison sentence. Appellant contends his trial ...
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*1279 Opinion Plaintiff the 3250 Wilshire Boulevard Building, a limited partnership, appeals from an order of dismissal, entered June 23, 1993, after a demurrer was sustained, without leave to amend, to the claims pleaded in its first amended complaint against respondents Employers Insurance of Wausau and Wausau Underwriters Insurance Company. (A co-plaintiff, Housing Affiliates, Inc., pleade...
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Opinion There is currently no tort liability in California for refusal to renew a professional liability insurance policy for reasons in violation of public policy. Whether such liability should be imposed is a matter for the people of California to decide, either by initiative or through the Legislature. We may not legislate on the subject in their stead. Procedure NORCAL Mutua...
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39 Cal. App. 4th 1309 (1995) 46 Cal. Rptr. 2d 507 MARTIN SUMAN, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; BMW OF NORTH AMERICA, INC., Real Party in Interest. Docket No. B094591. Court of Appeals of California, Second District, Division Three. November 2, 1995. *1312 COUNSEL Lawrence J. Hutchens for Petitioner. No appearance for Respondent. Lewis, D'Amato, Brisbois &...
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Opinion Will a good faith settlement between the issuer of a blanket excess liability policy of insurance and its insureds, with respect to an occurrence assertedly covered by the policy, bar the claim of the issuer of a second excess liability policy, which assertedly covers the same occurrence, against the first insurer, for contribution of a proportionate share of amounts the second in...
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*1351 Opinion CQL Original Products, Inc. (OP) appeals an order granting National Hockey League Players’ Association’s (NHLPA) motion to dismiss OP’s first amended complaint pursuant to Code of Civil Procedure 1 section 410.30 enforcing the forum selection clause contained in the parties’ license agreement. OP contends enforcing the combined choice-of-forum/choice-of-l...
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Opinion During arbitration proceedings, plaintiffs and defendants settle their lawsuit. Plaintiffs then renege. At a second arbitration hearing the arbitrator finds the settlement to be valid. Three years later, defendants obtain a judgment confirming the arbitration award which upheld the settlement. Plaintiffs sue the attorneys who negotiated the settlement. Does the statute of limitations for ...
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Opinion Handlery Hotels, Inc. (Handlery) appeals from the trial court’s grant of summary judgment in favor of the Franchise Tax Board (the Board). (Code Civ. Proc., § 437c.) In its complaint, Handlery sought a refund of taxes, contending that it had overpaid its 1991 franchise tax. The only issue before this court is a purely legal one—whether Handlery’s 1991 franchise tax should be calcu...
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OPINION Introduction This appeal raises the issue of the validity of an administrative regulation of the Department of Social Services to limit reimbursement to the County of Los Angeles for emergency shelter costs for abused children. The County of Los Angeles contends the regulation which places a time limitation on social services provided at MacLaren Children’s Center is in excess of the ...
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*1373 Opinion Victor Q. Ramirez was convicted by a jury of second degree robbery (Pen. Code, §§ 211, 212.5) and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), a lesser included offense within the charged offense of attempted murder. (Pen. Code, §§ 664, 187.) 1 The jury also found that Ramirez intentionally inflicted great bodily injury upon the victim (§ 12022.7) and used a d...
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Opinion In a contested jurisdictional hearing, the family court determined that Christopher Elaine Wilson, a resident of Texas, had consented to jurisdiction in California. Wilson appeals from the court’s order, contending that her contacts with California were limited to opposing custody and visitation orders under the Uniform Child Custody Jurisdiction Act (UCCJA; Fam. Code, § 3400 et seq.), wh...
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Opinion In this case, we hold that a prevailing defendant on a special motion to strike brought pursuant to Code of Civil Procedure 1 section 425.16 is entitled to recover attorney fees and costs only for the motion to strike, not for the entire action. I. Factual And Procedural Background This case is the follow-up to Lafayette Morehouse, Inc. v. Chr...
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Opinion Defendant Lasance Ravon Douglas (defendant) was convicted of kidnapping for robbery, robbery, forcible oral copulation and rape. Sentence enhancement allegations that he kidnapped the victim for purposes of forcible oral copulation and rape were found true. In this appeal, he contends that: 1. It was unconstitutional for the case to be tried before a municipal court judge, pursuant to...
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Opinion Introduction Plaintiff Terry Van Ryn, as guardian ad litem of two minor children, has appealed from the trial court rulings granting the motion of defendant Korean Air Lines Co., Ltd. (KAL) to enforce a compromise of the minors’ *1600 claims against KAL and approving the settlement. In 1983, Rebecca Scruton, the sole parent of the minors, was a passenger on KAL flight 007 and died w...
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Opinion Petitioner seeks a writ of habeas corpus vindicating his claim the Sacramento Superior Court lacked jurisdiction to sentence him in *1550 absentia under Penal Code section 1203.2a. 1 We hold that under section 1203.2a the superior court must impose sentence within 30 days of receipt of a prisoner’s request to be sentenced in absentia, failing whi...
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Opinion Sonny Le appeals from a judgment sentencing him to state prison for four years upon convictions of felony assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1), hereinafter ADW), misdemeanor battery (Pen. Code, § 242), and misdemeanor petty theft (Pen. Code, § 484). At the trial, appellant was charged only with second d...
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*1502 Opinion A portion of Rambla Pacifico Road 1 in what is now the City of Malibu (City) and earlier was within the County of Los Angeles (County) was blocked by earth movement and closed by the County in 1984. Re-Open Rambla, Inc. (ROR), whose members include affected homeowners, wants the Road reopened but first must determine who owns the portion lying within the City, incorporated in ...
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Opinion Defendant Toby Titus Wade appeals from a judgment of conviction for second degree murder (Pen. Code, § 187), 1 with a finding of personal use of a deadly weapon (knife) in the commission of a felony (§ 12022, subd. (b)). Defendant contends (1) the trial court erroneously failed to instruct sua sponte on lesser included offenses, (2) other jury instructions were improper...
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39 Cal.App.4th 1561 (1995) 46 Cal. Rptr.2d 667 FAMILY PLANNING SPECIALISTS MEDICAL GROUP, INC., et al., Plaintiffs and Respondents, v. ROBERT POWERS, Defendant and Appellant. Docket No. A066362. Court of Appeals of California, First District, Division Two. November 9, 1995. *1563 COUNSEL Michael Millen for Defendant and Appellant. Smith, Merrill & Peffer and Mary B. Yudien for Plaintiffs and Resp...
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Opinion The United States appeals an order establishing the relative priority of claims to the proceeds of the sale of real property owned by *1536decedent Howard Silberman. The United States contends that, pursuant to the federal insolvency statute (31 U.S.C. § 3713) its unnoticed tax liens take priority over the prior recorded judgment liens of respondents Household Finance Corporation and Hous...
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39 Cal. App. 4th 1478 (1995) 46 Cal. Rptr. 2d 651 POWAY UNIFIED SCHOOL DISTRICT, Plaintiff and Appellant, v. JIH JUNG CHOW et al., Defendants and Respondents. Docket No. D019826. Court of Appeals of California, Fourth District, Division One. November 9, 1995. *1480 COUNSEL Lloyd M. Harmon, Jr., County Counsel, Diane Bardsley, Chief Deputy County Counsel, Lewis P. Zollinger and Michael B. Poyner, ...
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Opinion In this case we hold that provisions in a decedent's will, which was executed during a marriage that had been dissolved prior to his death, granting certain bequests in the event his spouse predeceased him to “my children and my spouse’s children” and “my issue and my spouse’s issue” fail as to “my spouse’s children” and “my spouse’s issue,” absent an expression of intent that the...
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Opinion Gordon Vann, individually and doing business as Vann’s Auto Body Shop, Inc., (Vann) brought a declaratory judgment action against its liability insurer, the Travelers Companies (Travelers), seeking a declaration that Travelers was obligated to defend it in connection with a third party action alleging environmental contamination arising out of the operation of Vann’s auto body rep...
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*1575Opinion On November 4, 1992, Kenneth Lisi filed a petition to dissolve his marriage to Pamela Lisi. A bitter battle developed over the custody of the parties’ two minor children. Pursuant to Family Code section 3150, which authorizes the court to appoint private counsel to represent the interests of children in a custody proceeding, the court appointed respondent Pearl Franklin Vogel to repr...
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Opinion Plaintiff and appellant Jean T. Weber, “individually and as trustee for the Jean T. Weber Trust,” brought this action *1581 against Unique Funding, Inc., and its assignees defendants and respondents Langholz and Wolveck, under the federal Truth in Lending Act (15 U.S.C. § 1601 et seq., hereafter the Act), seeking return of interest and fees paid on a loan secured by r...
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Opinion Plaintiff Saltarelli & Steponovich, a law firm, appeals from an order dismissing its action against Peter J. Douglas, a former client. The primary question presented is whether plaintiff’s contractual lien on defendant’s prospective recovery in the lawsuit for which the firm had been retained to represent defendant survived defendant’s discharge in bankruptcy. We hold it does. ...
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Opinion There are two issues in these cross-appeals from a judgment in favor of Matthew Poire against C.L. Peck/Jones Brothers Construction Corporation, Inc. (Peck/Jones) for injuries suffered in a construction accident. Peck/Jones argues the trial court erred by refusing to reduce the judgment by an offset for amounts paid to plaintiff by settling defendants. Plaintiff argues that he was...
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Opinion This appeal involves apparent conflicts between the provisions of Penal Code section 4011.6 and Welfare and Institutions Code sections 6550 and 6551, each authorizing the treatment of a minor offender referred to and detained in an appropriate state mental health facility (facility) pursuant to the Lanterman-Petris-Short (LPS) Act, Welfare and Institutions Code section 5000 et seq...
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Opinion Appellants Mary Havlicek and Stephen C. Havlicek, directors of respondent Coast-to-Coast Analytical Services, Inc. (CCAS), sought an *1849 order from the superior court allowing them to inspect the books and records of CCAS. In addition, appellants unsuccessfully sought to enjoin a pending merger by CCAS until they had completed their inspection. Appellants contend they have an “absol...
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Opinion Here we hold that the superior court located within the county in which an inmate is convicted of the crime that serves as the foundation for his placement in a state hospital as a mentally disordered offender (MDO) is the proper court to hear a petition for involuntary treatment under Penal Code section 2970. 1 Thus, the prosecutor who obtains the conviction that results in the place...
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39 Cal.App.4th 1826 (1995) 46 Cal. Rptr.2d 688 JONATHAN M., Petitioner, v. THE SUPERIOR COURT OF MENDOCINO COUNTY, Respondent; MENDOCINO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest. Docket No. A071305. Court of Appeals of California, First District, Division Five. November 14, 1995. *1827 COUNSEL Mason & Morrison and Timothy J. Morrison for Petitioner. No appearance for Respo...
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40 Cal.App.4th 367 (1995) 47 Cal. Rptr.2d 288 Estate of GUISEPPE CASTIGLIONI, Deceased. ANNIE J. CASTIGLIONI, Petitioner and Respondent, v. ELIZABETH DEL POZO, as Special Administrator, etc., Objector and Appellant. Docket No. D022217. Court of Appeals of California, Fourth District, Division One. November 16, 1995. *369 COUNSEL Garry J. Bowman for Objector and Appellant. Atherton, Allen & Ge...
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Opinion A law firm performs services which significantly increase the benefits received by an injured worker. We hold that under such circumstances it is error to apply the Goler 1 rule in setting the attorney fees. We therefore annul the decision of the Workers’ Compensation Appeals Board (Board) denying reconsideration of the attorney fees awarded. Facts ...
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Opinion The primary issue in this case is whether Nguyen committed burglary when he entered a house with the intent to steal property by giving the victim a worthless check in exchange for various items. We conclude the conduct constitutes burglary. Hung Hao Nguyen was convicted of three counts of burglary (Pen. Code, 1 § 459). In each count the victim advertised an item for sale in a local...
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Opinion Hector Encinas Valenzuela pled guilty to two counts of gross vehicular manslaughter while intoxicated. (Pen. Code, § 191.5.) He was sentenced to prison and appeals, claiming defects in the pleadings and sentencing error. We reject his contentions and affirm. Facts During the early morning hours of New Year’s Day 1993, Valenzuela, while intoxicated, drove down a Riverside street in excess o...
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Opinion This case presents a new twist to the statute of limitations case law evolving in asbestos personal injury litigation. On October 28, 1987, John Darden (plaintiff) filed suit against General Motors Corporation (GM) and others for personal injuries based on exposure to asbestos (Darden I) . 1 On June 12, 1990, plaintiff stipulated to settlements totaling over $200,000 ag...
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39 Cal. App. 4th 1811 (1995) 46 Cal. Rptr. 2d 836 THE PEOPLE, Plaintiff and Respondent, v. HENRY DAVID FLORES, Defendant and Appellant. Docket No. B087747. Court of Appeals of California, Second District, Division Six. November 14, 1995. *1812 COUNSEL Raymond L. Girard, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, C...
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Opinion After a jury trial defendant Ralph E. Johnson was convicted of one count of violating Penal Code section 288, subdivision (b) (lewd act *26 on a child by force) and ten counts of violating Penal Code section 288, subdivision (a) (lewd act on a child). 1 [[/]] * [[/]]* We affirm. [[Facts]]* Discussion [[I, II]]* III Johnson [[/]]* contends the prosecution abused its d...
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Opinion In this appeal, we are required to determine if the trial court or the jury should decide the issue of whether an insurer had “proper cause” to pursue a declaratory relief action in which it disputed insurance coverage. (Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1151-1152 [271 Cal.Rptr. 246].) This question arises in the context of an insured’s c...
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*407Opinion Following denial of his suppression motion (Pen. Code,1 § 1538.5), appellant Jesse Chris Applin pleaded guilty to possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)) and admitted having suffered a prior felony conviction (§ 667, subds. (c)-(j)). He was sentenced to 32 months in prison, calculated as the lower term of 16 months doubled pursuant to section 667, subdivisi...
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Opinion A child died as the result of a motor vehicle accident caused by a drunk driver. The child’s parents became involved with Mothers *19 Against Drunk Driving (M.A.D.D.). M.A.D.D. banned them from membership because of their allegedly disruptive conduct. The parents, Carol and James Harris, sued respondents, M.A.D.D., and its general counsel, H. Dean Wilkerson, for arbit...
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40 Cal. App. 4th 398 (1995) 46 Cal. Rptr. 2d 498 JOHN A. BAUGHMAN, Plaintiff and Appellant, v. MEDICAL BOARD OF CALIFORNIA, Defendant and Respondent. Docket No. B075018. Court of Appeals of California, Second District, Division Four. October 23, 1995. *399 COUNSEL Ginsburg & Hlywa and Evan L. Ginsburg for Plaintiff and Appellant. Daniel E. Lungren, Attorney General, Barry D. Ladendorf and Hei...
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40 Cal. App. 4th 446 (1995) 46 Cal. Rptr. 2d 730 THE PEOPLE, Plaintiff and Respondent, v. CARLTON WILLIAMS, Defendant and Appellant. Docket No. B087667. Court of Appeals of California, Second District, Division Seven. November 20, 1995. *450 COUNSEL Corinne S. Shulman, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Ch...
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Opinion The grandmothers of the plaintiff-appellants in this case ingested the drug diethylstilbestrol (DES) while pregnant with appellants’ mothers. It is claimed that, as a result of the ingestion, appellants’ mothers suffered disabilities that manifested themselves at various points after birth and that their children (appellants) suffered similar injuries when they were bom...
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Opinion This is the second appeal arising out of litigation between Structural Steel Fabricators, Inc. (Structural) and the City of Orange. In the first, Structural Steel Fabricators, Inc. v. City of Orange (1991) 234 Cal.App.3d 1206 [286 Cal.Rptr. 24], we reversed a summary judgment in favor of the city on its Civil Code section 3210 1 statute of limitations defense to Structural’s actio...
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Opinion The word “enhancement” is bound to send shivers down the spine of any person charged with a felony. In some cases, such as the instant one, punishment for the enhancement may exceed the punishment for the underlying substantive offense. As the moving party in a criminal action, it is the People’s obligation not only to plead and prove an enhancement, but also to tender adequate in...
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40 Cal. App. 4th 539 (1995) 46 Cal. Rptr. 2d 880 PAUL MATSON, Plaintiff and Appellant, v. EUGENE J. DVORAK, Defendant and Respondent. Docket No. C020162. Court of Appeals of California, Third District. November 21, 1995. *541 COUNSEL Siegel, Yee & Jonas and Dan Siegel for Plaintiff and Appellant. Norman & Eames and James K. Norman for Defendant and Respondent. [Opinion certified for parti...
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40 Cal.App.4th 492 (1995) 46 Cal. Rptr.2d 744 DEBORAH B. ANDREWS, Plaintiff and Respondent, v. BEATRIZ VALDEZ, as Registrar/Recorder, etc., Defendant and Appellant. Docket No. B083581. Court of Appeals of California, Second District, Division Three. November 21, 1995. *493 COUNSEL De Witt W. Clinton, County Counsel, and Halvor S. Melom, Principal Deputy County Counsel, for Defendant and Appellant...
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40 Cal.App.4th 477 (1995) 46 Cal. Rptr.2d 871 NORMA LAURA MEDINA et al., Plaintiffs and Appellants, v. HILLSHORE PARTNERS et al., Defendants and Respondents. Docket No. B089355. Court of Appeals of California, Second District, Division Six. November 21, 1995. *479 COUNSEL William L. Veen, Kevin Lancaster and Gary Alexander for Plaintiffs and Appellants. Henderson & Wohlgemuth, James B. Cole a...
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Opinion I. Introduction Defendant, Fred L. Turner, 1 appeals from the judgment entered after a jury trial in which he was convicted of first degree residential robbery (Pen. *737 Code, 2 § 211) and false imprisonment by violence. (§ 236.) Defendant was found not guilty of a charge of second degree robbery in violation of section 211 in an unrelated incident. The trial court also found t...
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*752 Opinion Petitioner Greg Kreitman was convicted of 42 counts of contempt for failing to make spousal support and other payments required by a marital dissolution order. He was sentenced to 210 days in jail. In this petition for writ of habeas corpus he contends he was denied his right to a jury trial. We agree and remand the matter to the trial court with directions to resentence petition...
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Opinion Hansen Mechanical, Inc. (Hansen) seeks a petition for writ of mandate to vacate the trial court’s June 14, 1995, order denying its motion for summary adjudication as to the third and fourth causes of action of the cross-complaint of cross-complainant and real party in interest Northridge Equipment Co., Inc. (Northridge), and to enter a new order granting summary adjudication in fa...
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*693 Opinion Defendant pled guilty to several narcotics offenses pursuant to a plea bargain, and a six-year prison term was imposed on May 31, 1988. However, the criminal proceedings were suspended, and he was committed to the California Rehabilitation Center (CRC). At that time, he was given 80 days of credit for actual time served. Defendant was received by the CRC on June 25, ...
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Opinion Appellant Sara Ben-Zvi was the exclusive distributor in Israel of embroidery thread and other products manufactured by respondent Edmar Company, a business located in Ventura County and owned by respondents Edson and Maria Freitas. Edmar terminated its contract with appellant when it learned that she had moved from Israel to the United States. The trial court, sitting without...
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Opinion A creditor attaches real property. The party claiming ownership of the property asserts a third party claim pursuant to Code of Civil Procedure section 720.110 et seq. 1 The third party has the burden of proving an interest in the subject property by a preponderance of the evidence. (§ 720.360.) We hold that when a creditor resists the claim by asserting the proper...
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*746 Opinion The Department of Motor Vehicles (DMV) appeals from a judgment granting William Pybum’s petition for a writ of mandate and ordering DMV to reinstate Pybum’s driving privilege. For reasons we shall explain, we reverse the judgment. Facts On October 11, 1991, Pybum was involved in an accident that caused bodily injury. A peace officer investigating the accident believed Pybum w...
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Opinion Petitioner, the City of Los Angeles (City), seeks an extraordinary writ of mandate directing the superior court to set aside orders issuing writs of mandate in two related cases filed by real parties in interest, 1 Kang and Miyamoto. *596 I. Factual and Procedural History Since April 1985, the City has required a conditional use permit for off-site al...
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*640 Opinion Introduction Plaintiffs and appellants Rodney A. and Nancy Briggs own a home in the city of defendant and respondent City of Rolling Hills Estates. As a condition of permitting a substantial addition to plaintiffs’ house, the city required that an unapproved patio/deck which intruded on a neighbor’s privacy be removed. Plaintiffs did not seek judicial review of ...
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Opinion The time has come to reassert a well-established but apparently not well-known rule about monetary sanctions in discovery, The rule is that it is an abuse of discretion for a trial court to issue a terminating sanction for failure to pay the sanction. A monetary sanction is immediately enforceable as a judgment, unless the court rules that it is not. In an appropriate case failur...
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Opinion Introduction Community property is liable for debts incurred by either spouse during marriage. (Fam. Code, § 910, formerly Civ. Code, § 5120.110, subd. (a).) But exactly when is a debt “incurred”? The Family Code provides that “[i]n the case of a contract,” it is “at the time the contract is made.” (Fam. Code, § 903, formerly Civ. Code, § 5120.040.) So what does it mean ...
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40 Cal. App. 4th 651 (1995) 46 Cal. Rptr. 2d 925 FOOD 4 LESS SUPERMARKETS, INC., et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; TABATHA FLETCHER, Real Party in Interest. Docket No. B092807. Court of Appeals of California, Second District, Division Four. November 28, 1995. *652 COUNSEL Morrison & Foerster, Timothy F. Ryan and Janie F. Schulman for Petitioners. No...
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Opinion Appellant, Local 21, International Federation of Professional and Technical Engineers, AFL-CIO (Local 21),1 appeals the denial of its *673petition for writ of mandate seeking to enforce an arbitration award concerning wages and benefits of certain school district employees. This case arises out of the passage of Proposition B, which amended the Charter of the City and County of San Francis...
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Opinion In this case, Kevin J.’s parental rights were terminated at a selection and implementation hearing (Welf. & Inst. Code, § 366.26). He exercised his statutory right to appeal. Because he is unable to afford counsel, this court appointed a competent attorney to represent him at taxpayer’s expense (Cal. Rules of Court, rule 1435(b); In re Simeth (1974) 40 Cal.App.3d 982, 984 [115 Cal.Rptr. 6...
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Opinion Defendant was convicted of two counts of lewd and lascivious conduct (Pen. Code, § 288, subd. (a)) and one count of possession of marijuana (Health & Saf. Code, § 11357, subd. (b)), and an allegation that he had suffered a prior serious felony conviction was found true (Pen. Code, § 667, subd. (a)). He was committed to state prison for 15 years. On appeal, he challenges the suffic...
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Opinion Introduction Defendant Erick L. Womack appeals from a judgment of conviction entered after a jury found him guilty of willful, deliberate and premeditated attempted murder (Pen. Code, §§ 187, subd. (a), 664), in the course of which he used a deadly weapon (id., § 12022, subd. (b)), and attempting to induce a witness to give false or to withhold true testimony (id., § 137, subd. (b...
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Opinion Appellant Robert Earl McCoy was charged by information with murder, with a prior second degree murder special circumstance, personal knife use and great bodily injury enhancements, and two prior serious felonies. (Pen. Code, §§ 187, 190.2, subd. (a)(2), 12022, subd. (b), 1203.075.) 1 Appellant pled not guilty and not guilty by reason of insanity. Trial was by jury, whic...
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*895 Opinion This products liability case requires our consideration of the evolving tort of intentional spoliation of evidence. Balancing relevant factors, we will hold that the trial court erred in submitting to the jury a cause of action for intentional spoliation of a manufacturer’s design documents, when the destruction occurred before the plaintiff’s injury and after the pr...
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Opinion Frances S. (mother) appeals from a judgment of the juvenile court terminating her parental rights and releasing minors Gary P., Brittany P., and David P., for adoption. (Welf. & Inst. Code, § 366.26.) The sole ground for this appeal is mother’s contention the judgment is not in the best interest of minors because adoption would sever ties with the maternal grandmother, depriving them of t...
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Opinion The juvenile court placed appellant Ramon A. in a county camp facility based in part on a finding that he violated Penal Code section 12034, subdivision (a), which makes it a misdemeanor for a driver “knowingly to permit any other person to carry into or bring into the vehicle a firearm in violation of Section 12031 of this code or Section 2006 of the Fish and Game Code.” (Pen. Co...
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40 Cal.App.4th 787 (1995) 47 Cal. Rptr.2d 326 FRANK BURNABY, Plaintiff and Respondent, v. STANDARD FIRE INSURANCE COMPANY, Defendant and Appellant. Docket No. B080612. Court of Appeals of California, Second District, Division One. November 30, 1995. *788 COUNSEL Haight, Brown & Bonesteel and Roy G. Weatherup for Defendant and Appellant. Berger & Norton, Steven A. Blum, George M. Soneff an...
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Opinion Introduction Respondents, the City of Long Beach (the City), the City’s Manager, James C. Hankla and the City’s Chief of Police, William C. Ellis (the Chief), appeal from the grant of a peremptory writ of mandate ordering them to *963 provide petitioner, Gary Runyan, a police officer with the City, an administrative appeal before the City’s civil service commission in accordance wit...
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40 Cal.App.4th 825 (1995) 47 Cal. Rptr.2d 604 In re ANDREW B. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. HERBERT B., Defendant and Appellant. Docket No. G017193. Court of Appeals of California, Fourth District, Division Three. November 30, 1995. *827 COUNSEL Linda M. Fabian, under appointment by the Court of Appeal, for ...
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Opinion In this appeal, we review the judgments entered in favor of two defendant entities, Security Pacific National Bank (the Bank), and Michael Yurosek, David Yurosek and Mike Yurosek & Son (the Yuroseks), in an action brought by plaintiff Charles J. Lyons, Jr., a cosignatory with the Yuroseks on a $2,350,000 promissory note to the Bank. The complaint alleged three counts of conspiracy...
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Opinion Plaintiffs Gary Lorenz and Mary Ross appeal after the trial court vacated a $2,250,000 default judgment against defendant Commercial Acceptance Insurance Co. (hereafter, CAIC). (Code Civ. Proc., § 473.) *985 Plaintiffs contend the trial court erred in vacating the default judgment. 1 For reasons we shall explain, we conclude the trial court did not err. We ...
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40 Cal. App. 4th 1024 (1995) 47 Cal. Rptr. 2d 348 JEFFREY R. BREWER, Plaintiff and Appellant, v. ANITA TEANO, as Executor, etc., Defendant and Respondent. Docket No. B082617. Court of Appeals of California, Second District, Division Four. December 1, 1995. *1026 COUNSEL Donald T. Whitson for Plaintiff and Appellant. Thomas & Price and Christian E. Sanne for Defendant and Respondent. *1027 OPI...
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Opinion This appeal raises an issue regarding the scope of personal injury coverage in a policy of insurance issued to appellants Martin Marietta Corporation, Martin Marietta Carbon, Inc., and Martin Marietta Aluminum (Martin Marietta) by respondent Insurance Company of North America (INA). Specifically, we are asked to determine whether policy language insuring Martin Marietta’s liabilit...
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*1100 Opinion Gary Schlessinger, an attorney, and Rosenfeld, Meyer & Susman (RM&S), his former law firm, could not agree on the payment due Schlessinger upon his resignation from the partnership. Pursuant to the partnership agreement, the dispute proceeded to arbitration before the American Arbitration Association. The arbitrator disposed of the principal issues by way of two mot...
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Opinion A jury convicted defendant John Donald Dunn of first degree murder (Pen. Code, §§ 187, 189)1 and found he personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)). The trial court modified the verdict (§1181, subd. 6) to second degree murder because the court was not satisfied beyond a reasonable doubt that the killing was deliberate and premeditated. Sentenced to ...
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Opinion We are called upon to delicately balance precious First Amendment rights against the government’s interest in protecting minors from viewing harmful matter. Wayne C. Berry, who distributes an “adult” publication from sidewalk newsracks, challenged enforcement of a city ordinance of the City of Santa Barbara (City) on the theory that it violated the United States Constitution. The trial ...
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40 Cal. App. 4th 1090 (1995) 47 Cal. Rptr. 2d 386 RITA MARTINS, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, FARM BOY RESTAURANT et al., Respondents. Docket No. B088736. Court of Appeals of California, Second District, Division Six. December 5, 1995. *1091 COUNSEL Haynes, Wilkison & Stone and Donald W. Haynes for Petitioner. John I. Gilman and Timothy M. Ehritt for Respondents. OPINION...
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Opinion In this action challenging the City of Santa Cruz’s (City’s) adoption of a general plan, the trial court ordered City’s planning director and commissioners to reveal in depositions “whether there was an agreement among the council and commission members to refuse to consider any zoning for the greenbelt properties other than agricultural, regardless of the facts or evidence presented.” ...
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40 Cal. App. 4th 1137 (1995) 47 Cal. Rptr. 2d 343 THE PEOPLE, Plaintiff and Respondent, v. ALONZO HAMILTON, Defendant and Appellant. Docket No. E015214. Court of Appeals of California, Fourth District, Division Two. November 30, 1995. *1139 COUNSEL Linn Davis, 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 Appellant Gregory Brandon was sentenced to four years in prison after he was found guilty in a court trial of first degree burglary. A jury was initially impaneled to decide the matter, but was discharged after appellant’s counsel moved for a mistrial for reasons we shall explain more fully in this opinion. Appellant objected to the mistrial. He contends in this appeal that the judgment...
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Opinion Defendants and cross-complainants Urban West Communities, UWC-Valley Circle, UWC-Canoga and the American Insurance Company appeal from the judgment following bench trial entered for plaintiff and cross-defendant Royster Construction Company. For the reasons set forth below, we modify the judgment both in regard to its award of attorney fees and its award of prejudgment interest. ...
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*Supp. 9Opinion Appellants appeal from a judgment in an action to recover excess rent charged in violation of Santa Monica Rent Control Charter Amendment (SMRCCA) section 1809, subdivision (a). Appellants claim the trial court erred in concluding respondent’s claim for excess rent was subject to the three-year limitations period set forth in Code of Civil Procedure section 338, subdivision (a). Ap...
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Opinion Charlotte Biss appeals the order dismissing the case, contending the trial court erred: (1) by finding she had failed to make timely service on Robert J. Bohr and Daniel E. Kaplan; and (2) by refusing to consider her assertion of estoppel against John Mitchell’s claim she failed to make timely service on him. We affirm in part and reverse in part. *1249 Biss sued Boh...
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Opinion Introduction The issue in this case is the meaning of the word “request” in Labor Code section 5405.5. 1 That section states: “Except as otherwise provided in Section 5410, the period within which an employee may request vocational rehabilitation benefits provided by Section 139.5 is one year from the date of the last finding of permanent disability by the appeals ...
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40 Cal. App. 4th 1274 (1995) 48 Cal. Rptr. 2d 229 GUADALUPE HERNANDEZ et al., Plaintiffs and Appellants, v. MODESTO PORTUGUESE PENTECOST ASSOCIATION, Defendant and Respondent. Docket No. C017923. Court of Appeals of California, Third District. December 6, 1995. *1276 COUNSEL Bernardino & Associates and Rafael Bernardino, Jr., for Plaintiffs and Appellants. Mason & Thomas and Bradley S. Th...
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*1201Opinion In this case we review the trial court’s decision that a document containing eight words, seven of them proper names and an appellation, constituted a holographic will. Tai-Kin Wong (Tai) was a successful 44-year-old businessman who until just before death had a history of good health. He was living with his girlfriend Xi Zhao (Xi), and he enjoyed a close and loving relationship with...
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Opinion The San Diego Daily Transcript (Transcript) appeals from a judgment in favor of respondent San Diego Commerce (Commerce), rejecting Transcript’s efforts to have Commerce’s adjudication as a newspaper of general circulation set aside. Transcript contends (as it did below) that in order for Commerce to qualify as a newspaper of general circulation under *1231 Government Code section 600...
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Opinion Plaintiff Mark J. Penning appeals from a judgment dismissing his class action complaint 1 after demurrer by defendants Glendale Federal Bank, its former and current parent companies, and its securities brokerage subsidiary. We reverse. Facts Glendale Federal Bank (the Bank) is a federally chartered savings and loan association organized and operating under the...
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40 Cal. App. 4th 1254 (1995) 47 Cal. Rptr. 2d 399 SPRINT COMMUNICATIONS COMPANY L.P., Plaintiff and Respondent, v. STATE BOARD OF EQUALIZATION, Defendant and Appellant. Docket No. A067452. Court of Appeals of California, First District, Division Five. December 8, 1995. *1257 COUNSEL Daniel E. Lungren, Attorney General, and Julian O. Standen, Deputy Attorney General, for Defendant and Appellant. R...
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40 Cal.App.4th 1300 (1995) 47 Cal. Rptr.2d 723 THE PEOPLE, Plaintiff and Respondent, v. MARK ANTHONY PLANAVSKY, Defendant and Appellant. Docket No. G015750. Court of Appeals of California, Fourth District, Division Three. December 8, 1995. *1301 COUNSEL John S. Olson, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chi...
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Opinion I. Introduction Gayle K. and Sandra K. appeal from an order denying their petition to be appointed as guardians of Stephen G., a minor. They contend that the trial court applied an erroneous standard of proof when it required them to show by clear and convincing evidence that Stephen would suffer detriment if returned to his mother, objector Julie B., and that an award of cus...
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Opinion I. Introduction In this case we hold that Judge R. Bryan Jamar erred by failing to state reasons for imposing upper terms of imprisonment, and we remand the cause for resentencing by another judge because of Judge Jamar’s persistent failure or inability to perform the fundamental duty of a sentencing court to state reasons for its sentencing choices. II. Background ...
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40 Cal. App. 4th 1334 (1995) Conservatorship of the Person and Estate of ALBERTA V. IRVINE. CLAIRE M. FLETCHER, Petitioner and Respondent, v. CHILDREN'S HOSPITAL MEDICAL CENTER FOUNDATION, Objector and Appellant. Docket No. D022423. Court of Appeals of California, Fourth District, Division One. November 21, 1995. *1336 COUNSEL Bell, Rosenberg & Hughes, Robert Rosenberg and James C. Nelson for...
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40 Cal.App.4th 1521 (1995) 48 Cal. Rptr.2d 325 THE PEOPLE, Plaintiff and Respondent, v. GILBERT ANTHONY KWOLEK, Defendant and Appellant. Docket No. H012939. Court of Appeals of California, Sixth District. December 12, 1995. *1524 COUNSEL Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorn...
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Opinion The parties call on us to decide two separate but related issues: (1) May a final judgment providing for periodic payments of future damages be amended at the request of the plaintiff to require a cash advance against future damages in the amount necessary to pay her attorney fees? (2) In determining the maximum attorney fees allowable under MICRA,1 how should the trial court calculate th...
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Opinion Defendant Zsa Zsa Gabor and her husband, defendant Frederic Von Anhalt, appeal from a judgment on a special verdict in favor of plaintiff Bike Sommer in her action for defamation. On appeal, defendants contend the court erred in (1) applying California, rather than German, defamation law; (2) instructing the jury; and (3) admitting evidence the defamation caused distress to Sommer...
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Opinion This case presents the issue of whether the retail transactions and use tax of one-tenth of 1 percent (popularly known as the “Arts to Zoo” tax) authorized by the Fresno Metropolitan Projects Act (Gov. Code, § 68056 et seq.) violates article XI, section 11, subdivision (a) of the California Constitution. The constitutional provision states: “The Legislature may not delegate to a p...
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Opinion Defendant Timothy Ingram appeals from a judgment of conviction after a jury found him guilty of two counts of residential burglary (Pen. Code, 1 §§ 459, 460) and the trial court found true allegations he had suffered two prior convictions for residential burglary and had served a prior prison term for possession of stolen property. Because of the two prior residential burglary convict...
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*1562 Opinion Defendant and appellant Nita Almuete Paddit Palma appeals from the judgment (order granting probation) entered following a jury trial in which she was convicted of six counts of receiving unlawful remuneration—Medi-Cal fraud, a violation of Welfare and Institutions Code section 14107.2, subdivision (a). This section prohibits the receipt of remuneration, including k...
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Opinion This appeal raises a difficult legal issue from the arcane world of insurance premium financing. When an insurance agent arranges a fraudulent insurance premium financing transaction for an insured which purports to be—but is not—authorized or ratified by the insured, is the risk of liability for the insured’s subsequent loss of premium borne by *1635 the insurer issu...
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Opinion Because the civil service commission acted well within its discretion in discharging Deputy Probation Officer Earl Cummings, Jr., for misusing his authority, violating confidential records, and lying to other governmental officials and his own superiors, we affirm the judgment. We also affirm the principles Justice Johnson expressed recently and well for this unanimous court: a deputy prob...
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Opinion Plaintiffs brought this action for declaratory relief and to quiet title based on a forged reconveyance of a deed of trust on property purchased by defendants. The trial court awarded damages to the plaintiffs equivalent to the principal of the note secured by the trust deed and compound interest from the date of inception of the loan. Plaintiffs were also awarded attorney fees. D...
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Opinion A jury convicted appellant of attempted injury upon a cohabitant (Pen. Code1 §§ 664/273.5, subd. (a)), battery (§ 242), and assault (§ 240) and acquitted him of injury upon a cohabitant (§ 273.5, subd. (a)). In a bifurcated proceeding, the trial court found true three serious felony allegations (§ 667, subds. (b)-(i)): a 1986 attempted robbery conviction (§§664/211), a 1987 robbery convict...
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Opinion I Introduction This case arises out of a dispute between partners in a joint venture to produce a failed television series entitled Catwalk. Kidron, 1 the originator of the concept, complained that his former partners Franklin/Waterman, 2 the producers of the series, stole his rights to Catwalk and ousted him from production of...
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*1604 Opinion Kenneth Liebler (Liebler) appeals a judgment in favor of defendant Point Loma Tennis Club Community Corporation (PLTC), following a determination the PLTC declaration of covenants, conditions and restrictions did grant PLTC the authority to enact rules which exclude Liebler, a nonresident owner, from using the common area recreational facilities. Liebler conten...
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Opinion This appeal raises various issues related to Penal Code 1 section 667, former subdivisions (b)-(j), commonly known as the “three strikes" legislation, 2 including several constitutional attacks. We will find that some of appellant’s attacks are moot in his case and we will reject all of appellant’s other contentions. Statement of Case Following a preliminary examination, defenda...
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*1678 Opinion Terry H., a minor, 1 appeals his conviction of violating Health and Safety Code section 11680 2 (possession of an imitation controlled substance), challenging the application and constitutionality of such section. Facts On December 18, 1993, Riverside County Deputy Sheriff John Powers went to defendant’s home in response to a call regarding possible narcotics at that loc...
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*1668 Opinion In this appeal by the People of an alleged unauthorized sentence (Pen. Code, 1 § 1238, subd. (a)(10)), we conclude the trial court properly exercised its discretion under section 12022.5, subdivision (d) to stay execution of the additional term for Lamont Anthony Campbell’s admitted personal use of a firearm enhancement (§ 12022.5, subd. (a)) and affirm. Factual Summary In...
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40 Cal.App.4th 1615 (1995) 47 Cal. Rptr.2d 749 THE PEOPLE, Plaintiff and Respondent, v. DARRELL ANTOINE HAMILTON, Defendant and Appellant. Docket No. B088802. Court of Appeals of California, Second District, Division Seven. December 13, 1995. *1616 COUNSEL Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and Appellant. *1617 Daniel E. Lungren, Attorney General, George William...
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Opinion Convicted after jury trial of transportation and possession for sale of controlled substances, 2 defendant appeals from the judgment of conviction. Defendant’s sole contention on appeal is that his criminal prosecution violated the proscriptions against double jeopardy in the United *1270 States and California Constitutions because of the government’s prior...
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Opinion Appellant Mansour Jahangiri, M.D., appeals from the denial of his petition for a writ of administrative mandamus following the revocation of his medical license by respondent Medical Board of California. In this case we are asked to determine whether, under Government Code section 11523, 1 payment for transcript preparation must occur at the same time the request to prepare the record...
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Opinion I. Introduction and Background This appeal involves yet another insurance squabble in the tangle of litigation stemming from the demise of Technical Equities Corporation (TEC), a diversified investment services company that sought bankruptcy court protection in February 1986. Appellant is Employers Insurance of Wausau (Wausau), provider of second layer excess general liability insuran...
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Opinion Juan Zuniga and his extended family were residents of the Jordan Downs public housing project in the City of Los Angeles, which was operated by the Housing Authority of the City of Los Angeles (the Authority). After a fire set by arsonists killed five members of the family, the surviving members (appellants) filed a lawsuit against the Authority and the *90City of Los Angeles (the City) f...
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Opinion Presently pending before this court is the appeal of Richard and Pamela C. from an order terminating their parental rights pursuant to Welfare and Institutions Code section 366.26, subdivision (b)(1)1 over their daughter Mary C., bom September 30, 1992. The trial court, *74acting pursuant to section 317, subdivision (c), appointed counsel to represent the minor.2 Counsel appointed by the ...
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Opinion An insurer failed to provide a defense to its insured for a potentially covered claim. The insured then settled the suit by agreeing to dismiss a counterclaim in exchange for a dismissal of the original suit. This case raises the issue of whether the loss of a chose in action is a contractual loss under the policy issued to the insured. The trial court entered judgment for defenda...
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Opinion Gilbert John Anderson, Jr., as trustee of the Margaret K. Anderson Trust, appeals from the dismissal of his action against his brother, Nolan Anderson, as executor of the estate of their father, Gilbert J. Anderson, Sr. (Anderson Sr.) and as trustee of the Anderson Sr. living trust, *137 following the trial court’s sustaining respondent’s demurrer on statute of limita...
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Opinion Defendants and appellants City of Vernon (Vernon) and Victor H. Vaits, Vernon’s director of community services (Vaits) (sometimes collectively referred to as Vernon), appeal a judgment granting a petition for writ of mandate sought by plaintiff and respondent Southern California Gas Company (the Gas Company). The essential issue presented is whether Vernon can purport to regu...
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Opinion In the entertainment industry, talent agents and personal managers perform valuable services for their clients. Talent agents, *250 who seek to procure employment for artists, must be licensed under the Talent Agencies Act (Lab. Code, §§ 1700-1700.47). In contrast, personal managers, who advise and direct artists in the development of their careers, are not subject to...
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Opinion Plaintiff Joe Abandonato appeals a postjudgment order persona, $4,500 in attorney fees pursuant to Code of Civil Procedure section 128.5. We affirm. *266I In February 1992, Robert Kayyem filed a complaint for declaratory relief against Abandónate to determine the enforceability of a $525,000 promissory note purportedly written in 1982. Kayyem alleged no such note was ever made and he did ...
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Opinion This case presents the sometimes knotty question of the proper application of the “shifting burdens of proof” applicable to employment discrimination cases as first set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [36 L.Ed.2d 668, 93 S.Ct. 1817] (hereafter, McDonnell Douglas). Due to the confusion which is attendant to application ...
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*226 Opinion Glennell Witcher (appellant) was charged by information with two counts of petty theft with a prior conviction. (Pen. Code, 1 § 666.) Two separate priors were charged in connection with the section 666 counts—a 1987 second degree robbery conviction and a 1990 second degree burglary conviction. 2 The 1987 robbery conviction was also alleged as a ...
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Opinion Petitioner Carolyn R. seeks extraordinary writ review (Welf. & Inst. Code 1 , § 366.26, subd. (7); Cal. Rules of Court, rule 39.IB) from respondent court’s order that a section 366.26 hearing be held February 20, 1996. She challenges the court’s refusal to grant her 12 additional *162 months of reunification services after it sustained a supplemental petiti...
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*172 Opinion Mayme I. Hagen died in 1991, at the age of 96. Her two grandchildren, Michael and Amy Hagen, were her only surviving issue; her only child, John Hagen (the grandchildren’s father) had died in 1980. In 1988 the decedent had executed a revocable living trust, supplemented by a pour-over will, which gave almost all of her property to her cousin, Terry Hickenbottom, upon...
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*Supp. 3Opinion Wassam Issa (respondent) filed his claim in small claims court on February 1, 1993. Defendant Alzammar Construction, Inc., was subsequently served by service on Riad Alzammar. Defendant Alzammar Construction, Inc., filed a cross-claim on February 26, 1993. The small claims trial occurred on March 23,1993. On that date, the small claims court entered judgment for respondent against ...
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Opinion Pacific Inland Bank (PIB) appeals from a judgment granting Charles Ainsworth and Ainsworth Appraisal Services’ (Ainsworth) motion for summary judgment and dismissal of its complaint. The court concluded the full credit bid rule barred PIB from maintaining a negligence action against Ainsworth, a third party nonborrower. We agree and affirm. I Santiago Investors, wishing ...
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Opinion Jimmy D. appeals from the order of the superior court declaring his daughter, Dolly D., a dependent child of the juvenile court and taking custody from him. We find that the court’s decision to decide the case based only on the social worker’s report, and refusing the request of appellant’s attorney to cross-examine, denied appellant his right of confrontation. For this reason, we...
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*450 Opinion Jose Louis Demara appeals a judgment convicting him of three counts of unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)) and three counts of unlawfully receiving stolen property (Pen. Code, 1 § 496, subd. (a)). On appeal, Demara contends the court erred by: (1) denying his request for new counsel without conducting a proper hearing; (2...
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Opinion A jury convicted appellant of one count of robbery (Pen. Code, § 211) 1 (count 1) and one count of attempted murder (§§ 187, subd. (a), 664) (count 2). With respect to the robbery count, an allegation that appellant personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)) was found to be true. With respect to the attempted murder count, allegations that appell...
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*300 Opinion I. Introduction In this case we hold that California’s minimum wage laws are not unconstitutional as applied to an organization whose purpose is political advocacy, because the compelling state interest in ensuring a minimum wage adequate to maintain a decent standard of living justifies any incidental infringement on the organization’s First Amendment freedoms. II. Backgroun...
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Opinion We reject Michael Angel Plaza’s claims of evidentiary, instructional and sentencing error and affirm his conviction of five sex offenses. Facts Plaza and Elizabeth W. had a sexually intimate relationship for about nine months. About a week after the relationship ended, Elizabeth returned home to find several abusive messages from Plaza on her answering machine. Later tha...
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Opinion Petitioners United Farm Workers of America, AFL-CIO (the UFW) and interveners Father Joseph Tobin (Father Tobin), Mytyl Glomboske (Glomboske) and Rudolph N. Rico (Rico) (collectively, interveners) seek review of a decision by respondent Agricultural Labor Relations Board (ALRB) finding the UFW had violated Labor Code section 1154, subdivision (d), by conducting an illegal secondar...
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Opinion In this case the plaintiff employees made preparations to establish a competing business. The central issue on appeal is whether the defendant employer had good cause to terminate the employment of plaintiffs under the circumstances. We hold that it did. Plaintiffs Kenneth E. Stokes and Harley G. Embrey appeal from a summary judgment entered in favor of defendant Dole Nut Com...
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Opinion Plaintiffs and appellants Jerri Lynn Smith and Adrian Paul Faskas appeal from a summary judgment entered in favor of defendant and respondent Premier Alliance Insurance Company (Premier). In the published portion of this opinion, we conclude a defendant in a wrongful death action owes no duty to nonsettling heirs not to settle with only one of the heirs. In the unpublished portion...
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Opinion Plaintiff Dr. Jon Stenseth filed the instant action against defendant Wells Fargo Bank for allowing plaintiff’s employee to cash insurance checks on his forged endorsement. The jury found in favor of plaintiff. 1 On appeal defendant raises issues relating to the admissibility and sufficiency of the evidence. Plaintiff has filed a cross-appeal and contends the trial court erred by excl...
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Opinion Defendant and appellant Markee Carter appeals from a judgment following a jury trial in which he was convicted of the premeditated attempted murders of three victims on a single occasion and of being an ex-felon in possession of a firearm. He admitted a single prior serious felony conviction within the meaning of Penal Code 1 sections 667, subdivision (a) and subdivisions (b) through ...
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Opinion Catherine Jenae Tussy-Garber (Tussy-Garber) allegedly pricked her finger on a hypodermic needle in the pocket of a jacket that had been returned to Macy’s California, Inc. (Macy’s), by another customer. Tussy-Garber is now suing Macy’s for negligence, asserting a right to emotional distress damages because she fears contracting acquired immune deficiency syndrome (AIDS) 1 ...
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Opinion Here we hold that, when a qualified injured worker signs a compromise and release which states he is not interested in receiving vocational rehabilitation services and which also states that the agreement *762 does not release any claim to rehabilitation benefits, the Workers’ Compensation Appeals Board is not required to make a finding pursuant to California Code of ...
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*740 Opinion Plaintiff, Doina D. Filipescu, appeals from a judgment entered after demurrers were sustained without leave to amend to her second amended complaint for wrongful termination. Defendant, California Housing Finance Agency, has moved to dismiss the appeal as untimely. The dismissal motion is granted. The demurrers were sustained without leave to amend on June 19, 1995. On June 30,...
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Opinion The defendant, Joseph James Bogle, murdered Tom and Joan Bromley, then set fire to their house and shot himself in the head to cover up the murders. The defendant had lived with the victims and labored around the house in exchange for boarding. *775 During the trial, the prosecution presented evidence that the Bromleys’ safe, which contained personal items belonging ...
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Opinion I Introduction This is the second time Dennis Ray Howie (Howie) has appeared before this court. The first time he requested we prevent the relitigation of the constitutional validity of a prior conviction, and we did. This time he *732 requests we enforce the appellate court’s prior ruling, and we will. In this case, we decide the trial court is estopped from using a constitutiona...
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Opinion Domar Electric, Inc. (Domar) submitted the lowest monetary bid on a public works project in the City of Los Angeles (the City). It was not awarded the contract because it failed to document that it had complied with a subcontractor outreach program. Domar challenged the decision to award the contract to another bidder on the grounds that the outreach program violated the City’s ch...
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Opinion Defendant Imperial Casualty and Indemnity Company (Imperial) reinsured Mission Insurance Company (Mission) and two of its subsidiaries under various reinsurance agreements. In turn, Mission (but none of its subsidiaries) reinsured Imperial. In 1985, the Insurance Commissioner (the Commissioner) placed Mission and its affiliated companies into conservatorship due to insolvency. In 1987, th...
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Opinion This case involves a dispute between a company which owned the rights to the musical output of singer/songwriter Tom *801 Waits from 1972 to 1983 and the party which purchased those rights. The issue is whether a promise to market music, or to refrain from doing so, at the election of the promisor is subject to the implied covenant of good faith and fair dealing where...
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Opinion We have previously construed “pay rates,” as that term is used in the Government Code, to mean “wages.” (California State Employees' Assn. v. State Personnel Bd. (1986) 178 Cal.App.3d 372, 377, 381-382 [223 Cal.Rptr. 826].) In this case the trial court followed that definition and overturned a decision by the State Personnel Board (Board) which departed from that definition. We shall affir...
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Opinion The trial court granted a writ of mandate directing the Department of Motor Vehicles (DMV) to reinstate respondent Helen Roelfsema’s driving privileges following her arrest at a sobriety checkpoint. The court reasoned that the DMV failed to establish the lawfulness of the sobriety *874 checkpoint by proving the eight factors set forth in Ingersoll v. ...
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Opinion In this case, we must decide whether Penal Code section 667, subdivisions (b) through (i), the legislative version of the “Three Strikes Law,” requires that a defendant’s prior serious or violent felonies have been “brought and tried separately” in order to qualify as multiple “strikes.” 1 We conclude that the Three Strikes Law contains no such requirement. I. Factual and Procedural...
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Opinion This case raises the question of whether Vehicle Code section 16020,1 subdivision (a), requires drivers and owners of motor vehicles to carry not only evidence of the name of their insurance company and the number of the their insurance policy but also evidence that their insurance policy is currently in effect. We conclude that it does not. *Supp. 3Linda Darlene Latif (hereinafter appella...
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Opinion A couple enters into an exclusive authorization agreement with a broker to sell their business property. The couple is unhappy with the broker and obtains another broker who sells the property during the original listing period. Is the original listing broker entitled to the commission set forth in the authorization agreement? Yes. Century 21 Butler Realty, Inc. (Century 21) ...
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*1211 Opinion Plaintiff and appellant, Rudolfo Arellanes (Arellanes), appeals from the judgment entered following denial of his petition for a writ of mandate to compel the Los Angeles County Civil Service Commission (Commission) to vacate its decision upholding his discharge from the Los Angeles County Sheriff’s Department (Department). (Code Civ. Proc., § 1094.5.) The issues presented are...
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Opinion Castaic Lake Water Agency (Castaic) appeals from judgment entered following denial of petition for writ of mandate. Castaic contends the court erred in concluding that the City of Santa Clarita (the city) and the Santa Clarita Redevelopment Agency (the agency) properly proceeded with a redevelopment plan under an exemption from the requirement of an environmental impact report pur...
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Opinion Beresford Simmons (appellant) appeals from a judgment of dismissal following an order dismissing appellant’s personal injury action against the City of Pasadena (respondent) for delay in prosecution. Facts Appellant filed his complaint against respondent in the Pasadena Municipal Court on November 11, 1992. A year passed, and appellant had still not served the complaint on respondent. On N...
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Opinion Appellant received a notice of parking violation and requested review pursuant to Vehicle Code former section 40200.7. Dissatisfied with the result, he paid the civil penalty and demanded an administrative review pursuant to Vehicle Code former section 40200.7 and section 40215. The issuance of notice was sustained and appellant sought further review by filing an appeal in the municipal co...
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*Supp. 4Opinion These are consolidated appeals. Both appeals involve the question whether violation of Food and Agricultural Code section 206071, which prohibits misbranding of cattle, is a strict liability offense or whether the offense requires criminal intent and knowledge. Because the issue is important to the entire cattle industry, the California Cattlemen’s Association and the California De...
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Opinion Facts Respondent City of South San Francisco Housing Authority (Respondent) filed an action in San Mateo County Municipal Court on September 16, 1994, for unlawful detainer against appellants David and Ruth Guillory (Appellants). Appellants, their daughter, and a granddaughter presently reside in a federally subsidized apartment leased from Respondent. Appellants, as tenants, signed a lea...
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Opinion Plaintiffs John Billmeyer, trustee for the bankruptcy estate of Coast Range Transport, Inc. (hereafter, Coast Range), and Dennis and Nancy Kendall sued defendants Plaza Bank of Commerce (now Comerica Bank-Califomia) (hereafter, Plaza) and Pamela Bogle for losses allegedly caused by defendants’ lending practices which forced Coast Range into bankruptcy. The trial court granted defe...
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Opinion Appellant was convicted of violating Penal Code1 section 12020, subdivision (a) (possessing an instrument or weapon of the kind commonly known as a billy). On appeal, appellant contends as follows: 1. The trial court erroneously found that section 12020, subdivision (a) outlawed the possession of a baton. 2. Section 12020, subdivision (a) is unconstitutionally vague. We affirm the convicti...
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Opinion The mother of Johnny S. and Geneva R. contends that the juvenile court erred in placing the children with their father in Texas without complying with the provisions of the Interstate Compact on Placement of Children (ICPC) (Fam. Code, § 7900 et seq.). We hold that compliance with the ICPC is not mandatory when a California court places a child with a parent residing in another state. W...
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*813 Opinion Introduction In 1972-1973, an attorney, while practicing law as a law corporation, allegedly committed malpractice. In 1981, the attorney affiliated with a law firm. In 1986, the attorney was sued for the professional negligence allegedly committed in 1972-1973 and sought coverage under a “claims made” policy then in effect which had been issued to the firm with...
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Opinion Respondent was cited on four separate occasions for violating Los Angeles Municipal Code1 section 41.27, subdivision (h) (possessing an open container of an alcoholic beverage in public with the intent to consume the contents thereof in public). On each occasion, respondent signed a written promise to appear, but failed to appear as promised. Respondent was subsequently arrested on unrelat...
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40 Cal.App.4th 1177 (1995) 47 Cal. Rptr.2d 389 MICHAEL LENT, Plaintiff and Appellant, v. JOHN DOE, Defendant and Respondent. Docket No. C018471. Court of Appeals of California, Third District. December 5, 1995. *1180 COUNSEL Mary R. Williams for Plaintiff and Appellant. California Women Lawyers, Dawn M. Schock and Mary Ann Soden as Amici Curiae on behalf of Plaintiff and Appellant. Moss & Eno...
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