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All Reporters → cal-app-lexis → Volume 2001

Opinions in cal-app-lexis Volume 2001

102 Cal. Rptr. 2d 813 (2001) 85 Cal. App. 4th 1249 Greg DISTEFANO, Plaintiff and Appellant, v. John Glenn FORESTER, Defendant and Respondent. No. D035333. Court of Appeal, Fourth District, Division One. January 2, 2001. *815 The Traut Law Firm, James R. Traut and Eric V. Traut, Santa Ana, for Plaintiff and Appellant. Horvitz & Levy, Barry R. Levy, Julie L. Woods, Encino; Brownwood & Rice ...
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102 Cal. Rptr. 2d 711 (2001) 85 Cal. App. 4th 1279 6 ANGELS, INC., Plaintiff and Respondent, v. STUART-WRIGHT MORTGAGE, INC., et al., Defendants and Appellants. No. B128163. Court of Appeal, Second District, Division Four. January 2, 2001. *712 Burnett & Matthews, Michael W. Burnett and Arturo E. Matthews, Jr., Los Angeles, for Defendants and Appellants. Law Offices of Jody D. Angel and Jody ...
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102 Cal. Rptr. 2d 834 (2001) 85 Cal. App. 4th 1300 GOLDEN EAGLE REFINERY COMPANY, INC., et al., Plaintiffs and Appellants, v. ASSOCIATED INTERNATIONAL INSURANCE COMPANY et al., Defendants and Respondents. No. B132448. Court of Appeal, Second District, Division 4 January 3, 2001. Rehearing Denied February 2, 2001. Review Denied April 11, 2001. *836 Zevnik Horton Guibord McGovern Palmer & Fogna...
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102 Cal. Rptr. 2d 872 (2001) 85 Cal. App. 4th 1321 BOARD OF EDUCATION of the Sacramento City Unified School District, Plaintiff and Appellant, v. SACRAMENTO COUNTY BOARD OF EDUCATION, Defendant and Respondent; Kenneth H., a Minor, Real Party in Interest and Respondent. No. C034268. Court of Appeal, Third District. January 5, 2001. *873 Law Offices of Hamilton & Young, Spector, Middleton &...
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Opinion This case requires us to interpret provisions of the Roberti-Roos Assault Weapons Control Act of 1989 (Pen. Code, §§ 12275-12290) (the AWCA or Act), 1 which have not heretofore been judicially construed. The questions presented are whether, under that Act, a licensed gun dealer can acquire, possess and sell unregistered assault weapons and whether he may hold assault we...
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102 Cal. Rptr. 2d 864 (2001) 85 Cal. App. 4th 1356 PAUL FOR COUNCIL, Plaintiff and Appellant, v. Ricki HANYECZ et al., Defendants and Respondents. No. B140077. Court of Appeal, Second District, Division Three. January 5, 2001. *866 William J. Cleary, Jr., Los Angeles; Paul M. Christiansen, for Plaintiff and Appellant. Reed & Davidson, Dana W. Reed and Bradley W. Hertz, for Defendants and Resp...
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102 Cal. Rptr. 2d 804 (2001) 85 Cal. App. 4th 1435 Peter BULLOCK et al., Plaintiffs and Appellants, v. MARYLAND CASUALTY COMPANY, Defendant and Respondent. Peter Bullock et al., Plaintiffs and Appellants, v. American Guaranty & Liability Insurance Company et al., Defendants and Respondents. Peter Bullock et al., Plaintiffs and Appellants, v. Fireman's Fund Insurance Company, Defendant and Res...
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Opinion This case arises from the action of Michael Botsford, principal of A.E. Wright Middle School (the middle school), in changing citizenship *4 marks on the report cards of three students from the marks given them by their teacher, James Ferris. The trial court issued a preliminary injunction requiring appellants to reinstate the original marks given by Ferris pending th...
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Opinion Code of Civil Procedure 1 section 425.16 is California’s antiSLAPP suit (strategic lawsuits against public participation) statute (hereafter referred to as section 425.16 or the anti-SLAPP statute). 2 The anti-SLAPP statute was specifically enacted to provide both a summary disposition and attorney fees and costs to defendants in such actions. 3 ...
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Opinion Factual Background Appellant Mario Lara was charged and convicted of first degree burglary and sentenced to the third strike term of 25 years to life, with an additional 11 years for prior serious felonies and prior prison term enhancements. *144 Appellant hired privately retained counsel, David Roberts, to represent him throughout the criminal proceedings. Appe...
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Opinion This appeal having previously been dismissed, appellant moves to recall the remittitur. Respondents not only oppose the motion but request the imposition of sanctions on appellant’s counsel for factual misrepresentations made to the court. The request for sanctions raises the legal question whether an appellate court has inherent authority to impose sanctions in the form of attorn...
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Opinion George Dallas Hill appeals his convictions, following a jury trial, of two counts of lewd or lascivious acts on his eight-year-old granddaughter (Pen. Code, § 288, subd. (a)) and one count of annoying or molesting a child with a previous conviction. (Pen. Code, § 647.6, subd. (c)(2).) In a bifurcated trial, the court found true allegations that Hill had three prior “strike convictions” ...
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Opinion Does a sheriff have authority to administratively restrict a deputy’s peace officer powers to arrest and to carry a concealed firearm off *339 duty, when the deputy has shown he may present a danger to the public if he is allowed to exercise those powers? We conclude a sheriff does have such authority. However, we also conclude that a deputy has a right to admini...
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102 Cal. Rptr. 2d 921 (2001) 86 Cal. App. 4th 353 The PEOPLE, Plaintiff and Respondent, v. James PERACCHI, Defendant and Appellant. No. F031202. Court of Appeal, Fifth District. January 17, 2001. Rehearing Denied February 6, 2001. Review Denied May 2, 2001. *922 Victor Blumenkrantz, Berkeley, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Da...
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Opinion I. Introduction Plaintiff, Gulf Insurance Company (Gulf) appeals after a final judgment was entered in its favor and against defendants, TIG Insurance Company and TIG Insurance Company of Michigan (TIG). The appeal is from an order sustaining demurrers to Gulf’s claims for breach of contract and of the implied covenant of good faith and fair dealing in the original complaint....
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Opinion Appellant Harry R. Palmer appeals the judgment following his conviction for continuous sexual abuse and misdemeanor molestation of his grandsons. After review, we reverse and remand for resentencing and affirm in all other respects. Factual and Procedural Background In accord with the usual rules of appellate review, we state the facts in the light most favorable to the judgment. (...
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103 Cal. Rptr. 2d 269 (2001) 86 Cal. App. 4th 384 CITY OF SAN DIEGO, Plaintiff and Respondent, v. Michael Kane DUNKL et al., Defendants and Appellants. Padres, L.P., Plaintiff and Respondent, v. Michael Kane Dunkl et al., Defendants and Appellants. Nos. D035559, D035585. Court of Appeal, Fourth District, Division One. January 22, 2001. Review Denied April 25, 2001.[*] *272 J. Bruce Henderson, Gle...
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103 Cal. Rptr. 2d 258 (2001) 86 Cal. App. 4th 404 Thomas McCORMICK et al., Plaintiffs and Appellants, v. TRAVELERS INSURANCE COMPANY et al., Defendants and Respondents. No. A088300. Court of Appeal, First District, Division Two. January 22, 2001. Review Denied April 18, 2001. *259 Gumbiner & Eskridge, Joel P. Gumbiner, Jack D. Eskridge, Walnut Creek, for Appellants. Farbstein & Blackman, ...
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Opinion Defendants 1333 North California Boulevard, a limited partnership (the Partnership), Sunset Ridge, Co., Inc. (Sunset) and Sanford Diller (Diller; the Partnership, Sunset and Diller are referred to collectively as Borrowers) appeal from the order denying their motion for judgment notwithstanding the verdict after a jury found them liable to plaintiff The Nippon Credit Bank, Ltd., L...
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103 Cal. Rptr. 2d 438 (2001) 86 Cal. App. 4th 513 The PEOPLE, Plaintiff and Respondent, v. David Reyes LUERA, Defendant and Appellant. No. B134479. Court of Appeal, Second District, Division Three. January 24, 2001. *440 Thomas Hunter Russell and Robert A. Wynn, Hollywood, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wende...
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*540 Opinion Plaintiffs and appellants Hermosa Beach Stop Oil Coalition, Heal the Bay, Santa Monica Baykeeper and American Oceans Campaign (hereafter collectively referred to as Stop Oil) appeal from a judgment after a bench trial entered in favor of defendants and respondents City of Hermosa Beach and City Council of the City of Hermosa Beach (the City) and real parties in inter...
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Opinion Appellant Axel Ernesto McPherson aided another in raping Nancy T. Immediately thereafter he raped her. He pleaded no *529contest to two counts of forcible rape (§261, subd. (a)(2)),1 and was sentenced to 12 years in prison, consisting of consecutive sentences of six years on each count.2 McPherson contends that he should not have received consecutive sentences. He claims that the trial cou...
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Opinion Following entry of judgment in favor of defendant Tuff Boy Holding, Inc. (hereafter Tuff Boy) and against plaintiff Wilshire Insurance Company (hereafter Wilshire) on a claim for indemnity, Wilshire appeals from the judgment, challenging the trial court’s prejudgment grant *630 of a motion for good faith settlement between Tuff Boy and the plaintiffs in an underlying ...
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Opinion Introduction These consolidated civil actions arise from the murders of Nicole Brown Simpson and Ronald Lyle Goldman. A jury found that defendant Orenthal James (O.J.) Simpson committed these homicides willfully and wrongfully, with oppression and malice. Sharon Rufo and Fredric Goldman, the parents and heirs of Ronald Goldman, were awarded $8.5 million compensatory damages o...
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Opinion A father of minor children appeals from an order modifying his child support obligation. We affirm. *648Factual and Procedural Background Dennis Scheppers and Nancy Scheppers married in 1974. The marriage produced six children: Micah, Matthew, Amber, Joseph, Amanda, and Jennifer. When their marriage was dissolved in 1987, all six children were minors. In July of 1998, the mother applied f...
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Opinion Peggy Sue Biggums-Slayton (Mother) appeals from an order granting custody of her minor son to her former husband, Timothy E. Slayton, Sr. (Father). We affirm the order. *656 I Factual and Procedural Background The parties were married in 1980. Their first child, Timothy, Jr., was bom in 1981. The child whose custody is at issue, Turhan, was born in January 1995. In May 1997, F...
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103 Cal. Rptr. 2d 538 (2001) 86 Cal. App. 4th 664 C.J.A. CORPORATION, Cross-complainant and Respondent, v. TRANS-ACTION FINANCIAL CORPORATION et al., Cross-defendants and Appellants. No. A086348. Court of Appeal, First District, Division Three. January 29, 2001. Review Denied May 16, 2001. *539 Roger Bernhardt and Kyle G. Bach, San Francisco, CA, Counsel for Cross-defendants and Appellants. Malat...
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104 Cal.Rptr.2d 77 (2001) 86 Cal.App.4th 699 The PEOPLE, Plaintiff and Respondent, v. Larry JENKINS, Defendant and Appellant. No. B139842. Court of Appeal, Second District, Division Five. January 29, 2001. Rehearing Denied February 15, 2001. Review Denied April 25, 2001. Christine C. Shaver, under appointment by the Court of Appeal, Pacific Palisades, for Defendant and Appellant. Bill Lockyer, At...
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Opinion Michael M., a minor (appellant) appeals from a juvenile court order sustaining a Welfare and Institutions Code section 602 petition charging him with five misdemeanor counts, consisting of two counts of violating Penal Code section 422.6, subdivision (b), 1 two counts of vandalism causing damage under $400 in violation of section 594, subdivision (a), and one count of possession of to...
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Opinion This tragic case arose from a domestic dispute between defendant and his wife, Betty, lasting a few days. After Betty decided to *678 move out of her apartment, she enlisted the help of her mother, Nancy, her sister, Edna, and Edna’s husband, Aaron. While the four were at the apartment packing Betty’s belongings, defendant entered the apartment, went to the patio to retrieve a loaded ...
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Opinion Upon certification by the Appellate Division of the Sacramento County Superior Court, we ordered this appeal transferred to this court in order to settle an important question of law. (Pen. Code, § 1471.) The defendants, Prakash Vallabhdas Parmar and Rosemary Parmar, are facing a 250-count misdemeanor complaint arising out of their ownership and operation of two contiguous mo...
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Opinion By petition for a writ of mandate, the Coors Brewing Company (Coors) seeks to invalidate an amended regulation of the Department of Alcoholic Beverage Control (the Department) that effectively will prohibit alcoholic beverage licensees from continuing to conduct promotional contests in which cash prizes are given to consumers. 1 Coors contends that the regulation (Cal. ...
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Opinion A government agency pays only a portion of a judgment against it for inverse condemnation. In this case of first impression, we hold that Code of Civil Procedure section 1036 1 authorizes litigation expenses to the prevailing plaintiff in an action to enforce the inverse condemnation judgment under Government Code section 970 et seq. We therefore reverse the trial court...
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103 Cal. Rptr. 2d 626 (2001) 86 Cal. App. 4th 909 The PEOPLE, Plaintiff and Respondent, v. Kevin ALLEN, Defendant and Appellant. No. B136331. Court of Appeal, Second District, Division Three. January 30, 2001. Rehearing Denied February 21, 2001. Review Denied May 2, 2001.[**] *627 Judith Kahn, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, D...
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103 Cal.Rptr.2d 779 (2001) 86 Cal.App.4th 895 HILL MEDICAL CORPORATION, Plaintiff and Appellant, v. Russell R. WYCOFF, Defendant and Appellant. No. B134869. Court of Appeal, Second District, Division Three. January 30, 2001. *781 Frank Albino, Gary Ganchrow, Los Angeles, and Parker, Milliken, Clark, O'Hara & Samuelian, for Plaintiff and Appellant. Charles C. Ivie, Antoinette DeCamp, Los Angel...
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103 Cal. Rptr. 2d 773 (2001) 86 Cal. App. 4th 919 Meredith S. HALE, Plaintiff and Appellant, v. SOUTHERN CALIFORNIA IPA MEDICAL GROUP, INC., et al., Defendants and Respondents. No. B137947. Court of Appeal, Second District, Division Three. January 30, 2001. *774 Gary D. Stabile, Manhattan Beach, for Plaintiff and Appellant. Sulmeyer, Kupetz, Baumann & Rothman and Elissa D. Miller, Los Angeles...
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Opinion Insurance Code section 11580.2 (section 11580.2), in part, governs insurance companies in providing uninsured motorist coverage (UMC). Subdivision (c)(2) of section 11580.2 authorizes an insurer to *813 exclude UMC for bodily injury of its insured if the insured is in, upon, entering into, or alighting from, a motor vehicle that is not described in the insured’s auto ...
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Opinion Defendant and appellant Fred M. Charness (Charness) appeals a judgment in favor of plaintiff and respondent James Christian Sims (Sims) following a court trial. The essential issue presented is whether a fee-sharing agreement between Attorneys Charness and Sims amounted to a pure referral and thus was subject to rule 2-200 of the Rules of Professional Conduct of the State Bar of Cal...
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103 Cal. Rptr. 2d 605 (2001) 86 Cal. App. 4th 865 CENTURY CITY MEDICAL PLAZA, Plaintiff and Appellant, v. SPERLING, ISAACS & EISENBERG, et al., Defendants and Respondents. No. B133901. Court of Appeal, Second District, Division Three. January 30, 2001. Rehearing Denied February 15, 2001. Review Denied May 16, 2001. *607 Raiskin & Revitz and Steven J. Revitz, Los Angeles, for Plaintiff and...
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103 Cal.Rptr.2d 552 (2001) 86 Cal.App.4th 833 HESSIANS MOTORCYCLE CLUB et al., Plaintiffs and Appellants, v. J.C. FLANAGANS et al., Defendants and Respondents. No. G022832. Court of Appeal, Fourth District, Division Three. January 29, 2001. Review Denied May 2, 2001. *553 Law Offices of Richard M. Lester, Encino, and Randolph M. Hammock, Los Angeles, for Plaintiffs and Appellants. Ronald Talmo, f...
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Opinion Defendant appeals the trial court’s finding that he is a mentally disordered offender (MDO). I Facts and Procedural History On January 3, 1992, defendant pled guilty to one count of second degree robbery (Pen. Code, § 211 1 ), admitted the personal use of a firearm within the meaning of section 12022.5, and was sentenced to an aggregate term of seven year...
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103 Cal.Rptr.2d 809 (2001) 86 Cal.App.4th 970 The PEOPLE, Plaintiff and Respondent, v. Refugio Anthony SANCHEZ, Defendant and Appellant. No. C032228. Court of Appeal, Third District. January 31, 2001. *810 Frank G. Prantil, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Arnold O. Overoye, Assistant Attorneys Ge...
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Opinion The law has long recognized that “[t]he duty to disclose knowledge of crime rests upon all citizens. It is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness.” (Stein v. New York (1953) 346 U.S. 156, 184 [73 S.Ct. 1077, 1092, 97 L.Ed. 1522], fn. omitted; see Barry v. United States ex rel. Cun...
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Opinion In this case, we consider whether a commercial lessor’s three-day notice to quit or pay, which includes a demand for rent *1037 unpaid for more than a year before the notice was served, can support an action for unlawful detainer. We conclude that inclusion of rent due for over a year is not fatal to an unlawful detainer action, if the notice also includes a demand fo...
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Opinion By statute, the state has mandated that all noncertificated school district employees be fingerprinted. (Ed. Code, § 45125.) In conformity with the mandate, the school district tells its employee to comply. But it is the employee who decides when and where to be printed. She elects to do so on a day off. Immediately after being printed, she collides with a motorcycle. We conclude that sub...
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Opinion Defendant Michael J. Pierson was convicted of two counts of manufacturing a controlled substance (Health & Saf. Code, § 11379.6, subd. (a)), and the jury found true the allegation that he committed the second offense while released on bail (Pen. Code, § 12022.1, subd. *986 (b)). He was sentenced to eight years eight months in state prison. Defendant Patrick M. Dougher...
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103 Cal. Rptr. 2d 841 (2001) 86 Cal. App. 4th 995 Pamela T. CAMARGO, Plaintiff and Appellant, v. CALIFORNIA PORTLAND CEMENT COMPANY et al., Defendants and Respondents. No. C033137. Court of Appeal, Third District. January 31, 2001. Review Denied May 2, 2001. *842 Matthew R. Berrien and Sabrina M. Tourtlotte of Curtis & Arata, Modesto, for Plaintiff and Appellant. Elaine M. Smith, Gary F. Over...
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Opinion This appeal is from a judgment terminating the parental rights of Julie M. to her son Steven H. The appeal asserts the judgment must be reversed because the Orange County Social Services Agency (SSA) failed to comply with the requirement of Welfare and Institutions Code section 366.23, subdivision (b)(5)(B),1 that notice of the termination hearing be served on Steven’s grandparents. We is...
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*1046 Opinion I. Introduction This is an action, originally filed in Humboldt County and then transferred to San Francisco, to set aside certain Stanislaus County real property conveyances as fraudulent. The superior court sustained a demurrer to appellant’s amended complaint without leave to amend. The basis of its ruling was that the suit was barred by the applicable statute of limitation...
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Opinion May a realtor who is sued for negligent nondisclosure of defects in real property obtain equitable indemnity from a home inspection company that allegedly breached its duty to the purchaser to discover and *1113 disclose the same defects? Yes. May that same realtor seek equitable indemnity when the home inspection company prepared its report for a different prospectiv...
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103 Cal. Rptr. 2d 882 (2001) 86 Cal. App. 4th 1097 John DONNELLAN, Plaintiff and Appellant, v. CITY OF NOVATO et al., Defendants and Respondents. No. A090263. Court of Appeal, First District, Division Five. February 1, 2001. *883 Law Offices of William L. Williams, Jr. and William L. Williams, Jr., Counsel for Plaintiff/Appellant John Donnellan. Walter & Pistole, Jeffrey A. Walter and Veronic...
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Opinion Presiding Justice Harold G. Clarke of the Georgia Supreme Court observed that “[t]he law gives the towing company a great advantage over the owner of the towed car, and creates a great potential for unfair business practices and abuse of the public.” (Porter v. City of Atlanta (1989) 259 Ga. 526, 528 [384 S.E.2d 631, 634].) While that observation was made 11 ...
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103 Cal.Rptr.2d 890 (2001) 86 Cal.App.4th 1126 The PEOPLE, Plaintiff and Appellant, v. Rockland Faber RIGGS, Defendant and Appellant. No. C029575. Court of Appeal, Third District. February 2, 2001. Daniel E. Lungren, Attorney General, George H. Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Harry Joseph Colombo, Supervising Deputy Attorney Gen...
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103 Cal. Rptr. 2d 901 (2001) 86 Cal. App. 4th 1144 Celeste DELLA ZOPPA, Plaintiff and Appellant, v. Joseph DELLA ZOPPA, Defendant and Respondent. No. A090260. Court of Appeal, First District, Division Two. February 5, 2001. *902 Law Offices of Brian D. Thiessen, Brian D. Thiessen, Alamo; Filice Law Offices and Gerald W. Filice, Sacramento, for Appellant. Fershko, Lewis & Blevans, LLP, Robert ...
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Opinion Where a defendant who is strictly liable for a plaintiff’s injury settles with the plaintiff and with various other joint tortfeasors and then pursues an equitable indemnity claim against a nonsettling joint tortfeasor, is the nonsettlor jointly and severally liable for the amount paid by the defendant to the plaintiff? In this case we answer this question in the negative, based on the co...
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Opinion This is an appeal by Tracor Flight Systems, Inc., the defendant below, after judgment was entered against it in an action for wrongful termination of employment. We affirm the judgment. Facts We view the evidence in the light most favorable to the party who prevailed in the trial court, resolving in that party’s favor all issues of credibility and all inferences from the...
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104 Cal. Rptr. 2d 108 (2001) 86 Cal. App. 4th 1176 In re Aaron COLLINS, on Habeas Corpus. No. A090799. Court of Appeal, First District, Division One. February 6, 2001. Rehearing Denied March 8, 2001. Review Denied May 23, 2001.[*] *109 Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Paul D. Gifford, Senior Assistant Attorney General, Frances T. Grander, Superv...
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I agree with much of the majority’s analysis, but disagree with the result. In the context of an attorney-client relationship, the doctrine of imputed knowledge is a product of public policy and pragmatism. As a matter of public policy, it is presumed that an attorney has knowledge of confidential information adverse to the opposing party in a lawsuit when the former representation of that party b...
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104 Cal. Rptr. 2d 173 (2001) 86 Cal. App. 4th 1309 ZILOG, INC., Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent; Pacific Indemnity Company et al., Real Parties in Interest. No. H021144. Court of Appeal, Sixth District. February 7, 2001. Rehearing Denied February 28, 2001. *175 Pillsbury Winthrop, Stephen Stublarec, John M. Grenfell, Brent W. Brougher, Margaret S. Schroeder, Sa...
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104 Cal.Rptr.2d 131 (2001) 86 Cal.App.4th 1296 Charles Darnell CHERRY, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; The People, Real Party in Interest. No. B144293. Court of Appeal, Second District, Division Four. February 7, 2001. Review Denied May 2, 2001.[*] Certiorari Denied October 1, 2001. *132 Michael P. Judge, Public Defender of Los Angeles County, Albert J. Menast...
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Opinion A jury convicted defendant Thang Van Bui of vehicular manslaughter while driving under the influence of a drug and making an unsafe lane change (Pen. Code, § 192, subd. (c)(3); Veh. Code, §§ 21658, subd. (a), 23152), and he was sentenced to state prison for the lower term of one year and four months. On appeal, defendant contends the trial court erred in admitting expert testimony ind...
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Opinion A mentally retarded person who is a danger to himself or to others may be committed to the State Department of Developmental Services under Welfare and Institutions Code section 6500. 1 Here we conclude such commitment is proper without proving that mental retardation was a cause of the dangerous condition. Defendant Willie Quinn appeals an order of commitment to Atascadero State ...
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104 Cal. Rptr. 2d 66 (2001) 86 Cal. App. 4th 1225 The PEOPLE ex rel. DEPARTMENT OF TRANSPORTATION, Plaintiff and Respondent, v. Nano MALDONADO, Defendant and Appellant. No. A089538. Court of Appeal, First District, Division Five. January 10, 2001. Rehearing Denied February 1, 2001. Review Denied March 28, 2001. *67 Terry J. Traktman, Novate, for defendant and appellant. Breland C. Gowan, David Go...
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104 Cal. Rptr. 2d 197 (2001) 86 Cal. App. 4th 1366 Marcia SPIELHOLZ et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; Los Angeles Cellular Telephone Company et al., Real Parties in Interest. No. B131655. Court of Appeal, Second District, Division Three. February 8, 2001. Review Denied May 23, 2001.[*] *199 Lieff, Cabraser, Heimann & Bernstein, Elizabeth J. Cabraser...
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103 Cal.Rptr.2d 919 (2001) 86 Cal.App.4th 1382 The PEOPLE, Plaintiff and Respondent, v. Kenneth Wayne CARLISLE, Defendant and Appellant. No. B137310. Court of Appeal, Second District, Division Five. February 8, 2001. Sharon L. Rhodes, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney Genera...
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104 Cal. Rptr. 2d 183 (2001) 86 Cal. App. 4th 1346 Lawrence BAME, Plaintiff and Appellant, v. CITY OF DEL MAR, Defendant and Respondent. City of Del Mar, Plaintiff and Respondent, v. 22nd District Agricultural Association, Defendant and Appellant. Nos. D034206, D034354. Court of Appeal, Fourth District, Division One. February 8, 2001. *186 Alexandra M. Kowka, for Plaintiff and Appellant. Bill Loc...
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Opinion An insured purchased a homeowners policy containing an exclusion for bodily injury that is “a foreseeable result of an intentional or criminal act of any insured . . . .” During a disturbance at a party, the insured, holding a gun, chased a group of youths from his backyard and fired the gun to frighten them. The bullet struck James Glenn as he fled. The insured pleaded guilty to felony...
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Opinion Business and Professions Code section 7031 bars unlicensed contractors from bringing suit to recover compensation for work requiring a license. In this case, we hold that an unlicensed contractor may pursue an action under 42 United States Code section 1981 for racial discrimination during the performance of his contract, but may not seek damages for the defendant’s failure to pay...
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Opinion Plaintiffs and appellants Lee Newman, M.D., Inc., a Medical Corporation and Lee Newman, M.D., Inc., a Medical Corporation doing business as Beverly Hills Medical Clinic (Newman) appeal from a judgment of dismissal entered after the trial court sustained without leave to amend the demurrer of defendant and respondent Wells Fargo Bank, N.A. (Wells Fargo) to the two causes of action pleade...
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Opinion Defendant and appellant Amwest Surety Insurance Company (Amwest) appeals the trial court’s order denying its renewed motion to set aside summary judgment on a bail bond forfeiture.1 We affirm the judgment. Facts Sanchez Bail Bonds (Sanchez) posted a bail bond in the amount of $5,000 on February 2, 1999, for the release of defendant Jonathan Avila Garcia in People v. Garcia, Riverside Super...
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Opinion Introduction A jury convicted Calvin Crowe of second degree murder (Pen. Code, §§ 187, 189)1 and being a felon in possession of a firearm (§ 12021, subd. (a)(1)). The jury found true the sentencing enhancements that defendant personally and intentionally discharged a firearm, killing the victim (§ 12022.53), and that he personally used a firearm (§ 12022.5, subd. (a)(1)). *89In a separate ...
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Opinion I. Introduction Penal Code section 667.61,1 commonly known as the “One Strike” law (People v. Rayford (1994) 9 Cal.4th 1, 8 [36 Cal.Rptr.2d 317, 884 P.2d 1369]), mandates indeterminate life terms for those who, among other things, commit a rape “during the commission of a burglary.” (§ 667.61, subds. (b) & (e)(2).)2 In this case, we hold that the phrase “during the commission of a burglar...
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Opinion Defendant United Food and Commercial Workers Union, Local 588 (Union) appeals from an order granting a preliminary injunction restricting the Union’s picketing activity at the retail store of plaintiff Waremart Foods doing business as WinCo Foods (Waremart). 1 The Union originally contended the injunction was unwarranted and overbroad *148 under Code of Civ...
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Opinion Penal Code section 629.50 permits a law enforcement agency to obtain an order authorizing the interception of wire, electronic digital pager, or electronic cellular telephone communications (wiretap) 1 under certain limited circumstances. The application for a wiretap order must be made in writing “to the presiding judge of the superior court or one other judge designat...
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Opinion Introduction Lilark W. (mother), mother of six-year-old Anthony W., four-year-old Aireal L. and two-year-old Jonathan L., appeals from the order of the juvenile court denying her motion under Welfare and Institutions Code section 3881 for a modification of an earlier order terminating reunification services. We affirm the order. Factual and Procedural Background Mother was a dependent of ...
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Opinion Defendant and appellant Mario A. Nicastro (Nicastro) appeals an order denying attorney fees and costs after Nicastro prevailed in an arbitration brought by plaintiff and respondent Carole Ring & Associates (Ring). Nicastro seeks attorney fees and costs he incurred at the arbitration level as well as attorney fees and costs incurred in postarbitration judicial proceedings. The...
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*322 Opinion The Los Angeles County Department of Children and Family Services (DCFS), petitions for an extraordinary writ of mandate directing the trial court to vacate its order that a minor, Jaime M., be transported to MacLaren Children’s Center. DCFS asserts that MacLaren is a nonsecure facility designed to house children detained pursuant to Welfare and Institutions Code section 300, 1 ...
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*331 Opinion I. Introduction The California Supreme Court has ruled that for a trial court to depart from the sentencing scheme of the “Three Strikes” law, 1 “the defendant [must] be deemed [to be] outside the scheme’s spirit, in whole or in part,” in light of “the particulars of his background, character, and prospects” and the nature and circumstances of his pre...
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104 Cal.Rptr.2d 641 (2001) 87 Cal.App.4th 263 The PEOPLE, Plaintiff and Respondent, v. Leo CLEVELAND, Defendant and Appellant. No. B139266. Court of Appeal, Second District, Division Seven. February 27, 2001. Review Denied May 23, 2001.[*] *642 Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant A...
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*367 Opinion In 1991 appellant Richard Van Ness purchased health insurance from respondent Blue Cross of California under its prudent buyer program. That program established a two-tiered benefit schedule—the negotiated fee schedule for participating providers and the limited fee schedule for nonparticipating providers. Benefits under the negotiated fee schedule were greater becau...
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Opinion this appeal, we will hold that Penal Code section 1237.1— which precludes a criminal defendant from raising an error in the calculation of presentence custody credits, at least as the sole issue on appeal, if he or she has not previously raised the error in the trial court—does not apply to juvenile appeals. I Procedural Background In a petition filed on November 13, 1998, Antwon ...
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Opinion Introduction Petitioners, 1 African-American shoppers who claim they were beaten by security guards, sued the individual guards, 2 the guards’ employer IPC International Corporation (IPC), and others, alleging various tort causes of action. Petitioners noticed the depositions of the individual guard defendants. Fearing criminal prosecution arising from t...
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*314Opinion Introduction In a proceeding to commit Gary Briggs as a sexually violent predator pursuant to Welfare and Institutions Code section 6600 et seq., the People filed an affidavit of prejudice under Code of Civil Procedure section 170.6 to disqualify Judge Harold E. Shabo. The affidavit was not timely filed, because Judge Shabo had already conducted hearings on Briggs’s motion to exclude ...
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Opinion In this appeal we interpret Education Code section 44922, subdivision (e).1 Section 44922 allows school districts to establish reduced workload programs (i.e., part-time schedules) for certificated employees who are at least 55 years old and who satisfy certain other conditions. We read section 44922(e) to mean that while the reduced workload employee is paid the prorated share of his ful...
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Opinion Plaintiff brought an action for breach of implied and express warranty under the Song-Beverly Consumer Warranty Act. (Civ. Code, § 1790 et seq., the Act) 1 The jury rendered a verdict in favor of plaintiff. On appeal, defendants, Ford Motor Company and South Bay Ford, Inc., argue the court’s answer to a jury question about the meaning of “substantially” constituted reversible error. W...
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*454Opinion In his action for damages against Bay View Bank (Bay View), Gerald Grover alleges that Bay View negligently allowed his judgment debtor to escape a levy on bank accounts when it lost the documents necessary for levy and allowed the account holder to withdraw the money in the accounts. Bay View argues that the alleged loss of the papers is irrelevant. According to Bay View, even with th...
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Opinion In this appeal, we decide that where a case is concluded by a settlement after trial, there is no favorable termination for purposes of pursuing a malicious prosecution action. Frank E. Ferreira sued the law firm of Gray, Cary, Ware & Freidenrich, and two of its attorneys, Duane S. Horning and L.B. Chip Edleson (together *411 Gray, Cary) for malicious prosecution...
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Opinion Appellants Buena Vista Mines, Inc. (BVMI) and Harold J. Biaggini (its sole shareholder) sued several insurance carriers, claiming they *485 breached insurance contracts and violated the implied covenant of good faith and fair dealing by refusing to defend BVMI in a lawsuit previously brought against it in federal court. The trial court sustained demurrers filed by thr...
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Opinion In this case we consider whether a defendant seeking to stay or dismiss an action on the basis of forum non conveniens must show that all defendants are subject to jurisdiction in the proposed alternate forum. We hold that, on the facts presented here, such a showing is required. Background Appellant American Cemwood Corporation (American Cemwood) is an Oregon corpor...
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Opinion Family Code section 852, subdivision (a), provides: “A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.” 1 The issues we address in the published portion of this opinion are: (1) whether a grant deed signed by a ...
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Opinion Health Laboratories of North America, Inc., and its officer, Marc J. Kaplan, appeal an order denying their motion pursuant to the anti-SLAPP statute (Code Civ. Proc., § 425.16)1 to strike the People’s action for a permanent injunction enjoining them from making unsubstantiated advertising claims and for civil penalties for having made false or misleading advertisements. Appellants contend...
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Opinion Hospitals, doctors and others who provide services to Medicare beneficiaries are reimbursed based in part upon annual cost reports filed by the providers to conform to the Medicare statute and a variety of federal rules and regulations. Those cost reports are at the heart of this case, in which the primary plaintiff is a union and the primary defendant is a hospital at which there...
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Opinion Introduction Plaintiff Victor M. Rodas, doing business as Victor Rodas Wood Floors, appeals from an order dismissing his complaint as to defendants David Spiegel and Spiegel Certified Restoration. We affirm the order. *516Statement of Facts1 In October 1994, plaintiff installed hardwood flooring in Laura Keddington’s (Keddington) home. On December 6, 1994, Keddington wrote a letter to the ...
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104 Cal.Rptr.2d 686 (2001) 87 Cal.App.4th 534 AJIDA TECHNOLOGIES, INC., Plaintiff and Respondent, v. ROOS INSTRUMENTS, INC., et al., Defendants and Appellants. No. H020311. Court of Appeal, Sixth District. March 1, 2001. Rehearing Denied March 27, 2001. Review Denied June 13, 2001.[*] *689 Michael A. Vacchio, Wendy K. Kilbride, Morgan Lewis & Bockius, for Defendants and Appellants. Kara M. An...
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*594 Opinion I. Introduction Appellant Marcus Geroy McGinnis pleaded nolo contendere to residential burglary (Pen. Code, § 459) and trespass (Pen. Code, § 602, subd. (Z)). He was sentenced to a total term of six years in state prison. On appeal, he contends that the trial court erred by failing to refer him for an evaluation to determine if he should be confined at the California Rehabili...
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Opinion The convictions in this case stem from the drive-by shootings at two residences occurring within a very short time of each other. The facts are all too familiar: one of two warring gangs exacts revenge on the other in retaliation for prior gang activity and perceived slights to pride. In the published portion of this opinion we hold that substantial evidence supports eight attempt...
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Opinion Jeannette Franklin, now deceased, and her husband, Darrel Franklin (respondents), 1 filed an action for personal injury, premises liability and loss of consortium against several defendants, including appellant USX Corporation (USX). Respondents contended that Jeannette had contracted mesothelioma, an asbestos-caused cancer, as a result of childhood exposure to secondha...
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Opinion In this action for legal malpractice, John Robin Carlson appeals from the summary judgment granted in favor of Attorney *648James E. Blatt and James E. Blatt, a professional corporation (Blatt). (Code Civ. Proc., § 437c, subd. (c).)1 Carlson claims that he was wrongfully convicted of 13 felony counts in 1988 because of Blatt’s professional negligence. We conclude that the action is time-b...
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Opinion In this class action lawsuit to recover for nonpayment of overtime compensation, the defendant, Farmers Insurance Exchange (hereafter FIE), appeals an interim order awarding attorney fees, which was entered following an order granting summary adjudication in favor of plaintiffs on defendant’s fourth affirmative defense. We find no error in the decisional underpinning of the award ...
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*654Opinion In October 1996, Frederick D. Westlund was charged in a five-count information with possession of a cane knife (Pen. Code, § 12020, subd. (a));1 possession of a silencer for firearms (§ 12520); possession of a destructive device (§ 12303); possession of a substance or'material, or combination of substances or materials with the intent to make a destructive or explosive device (§ 12312)...
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Opinion The People have commenced proceedings for the commitment of Terry Joseph Leake to a secure mental health facility pursuant to the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.; further section references are to the Welfare and Institutions Code unless otherwise specified.) Leake moved for a court order directing the exchange of expert witness informatio...
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*690 Opinion In this case we hold that a city is not subject to suit for damages or an injunction for offering unrestricted access to the Internet through computers at a public library. I. Record This case was filed against respondent City of Livermore by appellant Kathleen R. individually, and in her capacities as a taxpayer and as guardian ad litem for Brandon P., her...
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Opinion In this appeal, we must decide whether a loss payable clause, patterned after the ISO (Insurance Services Office, Inc.) Standard Mortgagee Clause, is a standard loss payable clause. We also must determine various coverage and exclusion issues concerning a mortgagee’s claim under an all-risk homeowners policy. While the policy was in force, the named insured transferred title and m...
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Opinion The State Board of Equalization (the Board) appeals from a summary judgment awarding a refund of sales taxes, interest, and penalties in favor of Modem Paint and Body Supply, Inc. (Modem). Modem is a business that sells products used in auto body repair. It sold items to auto repair shops which the repair shops consumed or used up during the auto repair process and which were not ...
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Opinion The trial court subjected petitioner to the rigors of class action discovery without holding an oral hearing on petitioner’s demurrer. There was a real and genuine dispute whether the complaint alleged facts sufficient to establish the elements necessary for maintenance of a class action, including a community of interest among the potential class members and a preponderance of common que...
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Opinion The attorney-client privilege (Evid. Code, § 954), one of the oldest privileges in our jurisprudence, seeks to encourage candid and open discussion. Courts understandably are chary of efforts to turn attorneys against their clients. (But see People v. Gionis (1995) 9 Cal.4th 1196, 1208-1213 [40 Cal.Rptr.2d 456, 892 P.2d 1199].) Whether dealing with attorney-client communications or attorn...
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*714 Opinion Respondent Morton Engineering & Construction, Inc. (Morton), was hired by appellant Stanley Douglas Patscheck (Patscheck), as a subcontractor on a public works project. Patscheck failed to pay Morton for its work. Morton obtained a judgment that included penalties for failure to pay progress payments and retention proceeds within the time required by Business and Pro...
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Opinion A prosecutor exercises peremptory challenges excusing the only three African-American males in the venire. Defendant’s motion to compel the prosecution to justify these challenges is denied by the trial judge who rules that African-American males do not constitute a cognizable class for purposes of Wheeler.1 The trial judge also refuses to permit the prosecutor to respond to the defense mo...
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I respectfully dissent. Although a challenged juror’s inability to perform his or her function must appear as a demonstrable reality to justify dismissal under Penal Code section 1089 (People v. Feagin (1995) 34 Cal.App.4th 1427 [40 Cal.Rptr.2d 918]), this limitation does not alter the fundamental principles of appellate review. The trial court is best able to observe the appearance and demeanor o...
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Opinion The Hollywood Entertainment District II Business Improvement District (BID II) is a special assessment district in the City of Los Angeles (City). The Hollywood Entertainment District Property Owners Association (the POA), a 26 United States Code section 501(c)(6) nonprofit corporation, administers the funds City raises through assessments on businesses within BID IPs boundaries. ...
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Opinion The police detained appellant Ian C. for violating a city’s age-based curfew ordinance and transported him to a “curfew center” facility to await notification of his parents and their arrival at the facility where he would be released to them. The police searched appellant before placing him in the curfew center with other children, and found packets of marijuana and a large amoun...
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*880 Opinion This case involves interpretation of the Citrus Pest District Control Law (Pest Control Law), codified at Food and Agricultural Code section 8401 et seq. 1 We recently addressed the Pest Control Law at length in People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619 [92 Cal.Rptr.2d 115]. In that case we held, in part, that t...
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Opinion The petitioner and a codefendant are charged with two counts of premeditated attempted murder. In a separate criminal proceeding arising out of a different episode, the codefendant and another person were charged with the execution-style murder of one person and attempted murder of another. The cases were consolidated, so that the charges against the petitioner are to be tried together ...
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Opinion I. Introduction Angela K. Benedict appeals the trial court’s order granting Danner Press, The Press of Ohio and Bryant Whittaker (respondents) relief from default and default judgment under Code of Civil Procedure section 473, subdivision (b).1 Respondents filed a protective cross-appeal challenging the propriety of the default and default judgment. We conclude that the trial court proper...
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Opinion Robin R. Wilson, a nurse, and Michael C. Shea, a deputy sheriff, had a child, Amanda, in 1990. Robin, however, did not bring this *890 paternity action until June 1998, and the instant appeal arises from a move-away and child support order signed and filed in December 1999. The order was the result of Robin’s relocation to South Carolina to be with her mother. Ev...
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Opinion Plaintiff Del Cerro Mobile Estates appeals an order granting defendant Margery L. Proffer’s motion for attorney fees under Civil Code 1 section 798.85 2 after Del Cerro voluntarily dismissed its lawsuit against Proffer for breach of contract and abatement of nuisance. Del Cerro contends the court should have concluded Proffer was not entitled to attorney fees on either cause of acti...
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Opinion During the initial 30-day period of medical control by the employer following an industrial injury, Daniel Ordorica refused care by the employer’s doctor and instead began treatment with a physician he chose. The Workers’ Compensation Appeals Board (WCAB) determined that Ordorica’s refusal and change of physicians was an illegal and deliberate attempt to deny the employer its right of m...
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Opinion Background This is an appeal from an order imposing sanctions in the amount of $2,400 on appellant Colonial Western Agency, Inc.’s counsel. The underlying matter involves a complaint by respondent Mary Martha Stewart against Colonial Western. Stewart was employed as a senior vice-president for Colonial Western from October 1, 1997, to January 8, 1998. According to Stewart, she left secure...
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Opinion Robert Friedenberg appeals a judgment and orders denying his motion for judgment notwithstanding the verdict (JNOV) and partially granting a new trial following a jury verdict finding Friedenberg committed negligence in connection with his legal representation of Michael Piscitelli. Piscitelli retained Friedenberg’s law firm to pursue claims against his employer, Prudential Securi...
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Opinion In this case of first impression, we conclude that before appointment of a guardian ad litem for a parent in a Welfare and Institutions Code section 3001 proceeding, the parent’s right to due process requires an informal hearing and an opportunity for the parent to be heard. The failure to provide the parent with an opportunity to be heard in this case requires reversal of the jurisdictio...
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*1054Opinion 1. Introduction Jack D. Cochran (husband) appeals a marital dissolution judgment entered on August 24, 1999, wherein the trial court rejected his claim for reimbursement of separate property funds allegedly used for home improvements during his marriage. Husband contends that under Family Code section 26401 he is entitled to reimbursement of funds paid from his separate property port...
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*1115 Opinion Plaintiff and appellant Zoran K. Basich (Basich) appeals a judgment in this action for breach of the implied covenant of good faith and fair dealing entered in favor of defendant and respondent Allstate Insurance Company (Allstate). Judgment was entered after the trial court granted Allstate’s motion for nonsuit on the ground that Basich had failed to file his actio...
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Opinion In this writ proceeding we find the trial court’s discovery order infringes upon a witness’s psychotherapist-patient privilege as well her right to privacy. Accordingly, we grant the witness’s writ and direct the trial court to enter a new order consistent with the views we express. Summary Real party in interest Dannielle M. Kinder was severely injured on August 27, 199...
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*1074 Opinion Petitioners Donald R. Deary, executor of the Estate of Roy Grant Deary, Jr., et al. (defendants), contend that a discovery order issued by respondent Superior Court of Sacramento County requiring them to provide copies of estate tax returns to real party in interest Carolee Hendrick (plaintiff) violates their privilege to keep such returns confidential. They seek a writ of manda...
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105 Cal. Rptr. 2d 139 (2001) 87 Cal. App. 4th 1099 Marilyn PUNSLY et al., Plaintiffs and Respondents, v. Manwah HO, Defendant and Appellant. No. D036025. Court of Appeal, Fourth District, Division One. March 16, 2001. *140 Luce, Forward, Hamilton & Scripps and Charles A. Bird, San Diego, for Defendant and Appellant. Trope and Trope, Thomas Paine Dunlap and Donna Beck Weaver, Los Angeles, for ...
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Opinion In this case we find that although a petition alleging that a person is a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (SVPA or Act) (Welf. & Inst. Code, § 6600 et seq.) 1 should not be filed until two psychotherapists have evaluated the alleged SVP and found that his condition meets the requirements of the Act, a failure to d...
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Opinion February 2, 2000, a Welfare and Institutions Code section 602 petition was filed against appellant Ricky T. alleging that he made a felonious terrorist threat (Pen. 1 § 422) and threatened a teacher with the intent of preventing him from performing his duties (§ 71). *1135 On April 26, 2000, in a jurisdictional hearing, the parties stipulated that the matt...
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Opinion I. Introduction Plaintiffs, Save the Sunset Strip Coalition, Gigi Verone and Geoffrey Smith, appeal from a judgment denying a writ of mandate. Plaintiffs challenged actions of the defendants, City of West Hollywood and its city council (collectively, the city), with respect to a development project. The developer, Sunset Millennium Associates, LLC (Sunset), is the real party ...
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Opinion Introduction Welfare and Institutions Code 1 section 361.4, subdivision (d)(2) states that a “[dependent] child shall not be placed in the home” where the child would have contact with an adult who has been convicted of a crime, other than a minor traffic violation. The Los Angeles County Department of Children and Family Services (the department) has filed a petition for writ of ma...
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Opinion Richard Traverso doing business as Adco Outdoor Advertising appeals from an order dismissing his first amended petition for writ of mandate and complaint for damages (the complaint) against the California Department of Transportation (Caltrans) after Caltrans’s demurrer was sustained without leave to amend, This suit unsuccessfully attempts to revive permits for billboards which ...
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*1155 Opinion Appellants Y-3 Holdings, Inc., and Merv York appeal from an order denying arbitration of a lawsuit filed by respondent, ex-employee Lupe S. Romo, arising from termination of her employment. We conclude that the trial court did not err in concluding no agreement to arbitrate existed between the parties, and we affirm. Statement of Facts Respondent was conti...
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Opinion Defendant Jaime Ledesma Zepeda appeals after conviction, by jury trial, of first degree murder. (Pen. Code, § 187.) 1 The jury found true an allegation that defendant used a firearm (§ 12022.5, subd. (a)(1)) and an allegation that he discharged a firearm and caused death (§ 12022.53, subd. (d)). The trial court sentenced him to a term of 25 years to life for the murder,...
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Opinion In this case we hold that the trial court correctly sustained demurrers to a complaint seeking an order that applications for permits to erect billboard structures be deemed approved. *1219 Factual and Procedural Summary Appellant Eller Media Company constructs outdoor billboard structures for the purpose of renting to advertisers. In April, May, and June of 1999, it applied to th...
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*1224 Opinion the trial court appellants Jose C. Rodriguez and Martha O. Rodriguez 1 entered into a settlement agreement with respondents Jorge Sandoval Valencia and Maria Milan De Sandoval 2 on the record. Unknown to Sandoval and the trial court, Jose C. Rodriguez had filed a bankruptcy petition that was then pending. Shortly after the settlement, Sandoval ...
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Opinion The Department of Motor Vehicles (DMV) suspended Irene Janina Solovij’s license for driving with 0.08 percent or more of alcohol in her blood. (Veh. Code, § 13353.2.) 1 The administrative hearing officer considered both the officer’s sworn and unsworn report. The trial court granted Solovij’s petition for writ of mandate because there was no competent evidence in the sw...
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Opinion Introduction This appeal arises out of the following series of events. Gordon Ecker went to Raging Waters amusement park. Several adolescent boys complained to park security that Ecker was following and videotaping them. Security observed Ecker and confirmed he was surreptitiously videotaping juveniles. After uniformed security personnel approached Ecker, he *1324...
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Opinion Introduction Defendant and appellant Jean C. Chang (Jean) appeals from a judgment in favor of plaintiff and respondent Sanwa Bank California (Sanwa Bank), by which the trial court found her liable for fraudulent conveyance as the transferee of the family residence from her husband, George Chang (George), prior to George’s filing for bankruptcy. Jean argues that George’s discharge from...
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*1286 Opinion The sole issue presented by this appeal is whether California source income of an S corporation, passed through to a nonresident, is subject to California tax. Gene and Maureen Valentino (the Valentinos) appeal a judgment in favor of the State of California Franchise Tax Board (the Board) entered after the trial court denied the Valentinos’ motion for summary judgme...
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*1277 Opinion Summary Under a memorandum of understanding (MOU) between plaintiff National City Police Officers’ Association (the association) and defendant City of National City (the city), each year police officers are permitted to sell back up to 40 hours of unused vacation time. Separate provisions of the MOU require that in addition to their hourly base pay officers receive incentive p...
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Opinion I. Introduction After he was convicted of grand theft (Pen. Code, § 487), 1 the trial court ordered Robert Brewer to provide blood and saliva samples as a condition of probation. In so doing it relied, as authority for this condition, on section 296.1, subdivisions (c) and (d), of the DNA and Forensic Identification Data Base and Data Bank Act of 1998 (the DNA Act)...
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Opinion In 1999 plaintiff Thomas H. Kline sued defendants Priority Records, Inc. (Priority), a recording company, and its president Bryan Turner for alleged fraudulent acts occurring in 1990. Turner and Priority moved for summary judgment, arguing the action was time-barred. The trial court granted the motion. Judgment for Priority and Turner followed. Kline appeals. Background In 1990 Kline, a t...
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Opinion This case presents an issue of first impression concerning the application of the immunity provisions contained in Government Code section 850.4.1 We conclude that the immunity applies to the actions alleged against petitioner in this case, and that the action is therefore barred. Accordingly, we will grant the relief requested and direct the trial court to sustain petitioner’s demurrer w...
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Opinion Michael Carrillo pled guilty to felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), misdemeanor using or being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), and misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, § 11364). (Pen. Code, § 1237.5; 1 Cal. Rules of Court...
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Opinion This case revolves around the interpretation and application of Adoption of Kelsey S. (1992) 1 Cal.4th 816 [4 Cal.Rptr.2d 615, 823 P.2d 1216]. When Jaime T. was 20 and Annie G. was 18, they lived together for about a month. After Annie became pregnant with Jaime’s child, she moved back in with her parents. Annie wanted to place the child for adoption. Jaime wanted ...
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Opinion When a witness who testified at the preliminary hearing is unavailable to testify at trial, it is statutorily and constitutionally acceptable for the former testimony to be used at trial. (See Evid. Code, § 1291; Ohio v. Roberts (1980) 448 U.S. 56 [100 S.Ct. 2531, 65 L.Ed.2d 597].) This case presents the question whether the prosecution, to establish the unavailability ...
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Opinion Ivan J. appeals from a judgment declaring him a ward of the juvenile court and placing him on probation. (Welf. & Inst. Code, § 602.) He contends the evidence did not support the court’s jurisdictional finding that he had falsely identified himself to a peace officer under Penal Code section 148.9, subdivision (a) (hereafter section 148.9(a)). We affirm. Facts About 10:00 p.m. on October ...
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Opinion Michael Shane Hoffman was charged by information with transporting and possessing methamphetamine after his motion to suppress evidence was denied by the preliminary hearing magistrate. Hoffman eventually pleaded guilty to the charges in exchange for three years of formal probation. He now seeks review of the magistrate’s ruling. We conclude, however, Hoffman has waived his right to app...
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Opinion In this case, we address issues left undecided in People v. Hatch (2000) 22 Cal.4th 260 [92 Cal.Rptr.2d 80, 991 P.2d 165] (Hatch). We *8hold that a trial court’s postconviction dismissal of a jury’s verdict based on insufficiency of evidence is an appealable order. We further hold that judgment may be entered on that underlying jury verdict without violating the state or federal prohibiti...
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Opinion This case concerns the jurisdiction of the appellate division of the superior court, following trial court unification, to hear a petition for writ of mandate arising out of enforcement proceedings in the small claims court. The clerk of the appellate division of the superior court rejected, for want of jurisdiction, a petition for writ of mandate challenging a postjudgment enforcement ord...
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Opinion Larry Barker appeals the dismissal of his wrongful death suit against Brown & Williamson Tobacco Corporation (Brown) for the *45 1962 death of his father following the sustaining of a demurrer on the ground Barker’s claim was barred by the statute of limitations. On appeal, Barker contends the Legislature’s 1997 amendments to Civil Code 1 section 1714.45 ab...
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*119Opinion William Jun purchased inventory and furniture from Michael Myers, a receiver1 in a civil action to which Jun was not a party. Several months after the purchase, Jun claimed to have discovered the assets he purchased were not as represented. He filed a motion seeking leave to sue receiver either in that action or in a separate lawsuit. The motion was denied. Jun made a subsequent motio...
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Opinion Appellant Jennifer M. appeals from a final judgment dismissing her action against respondent Redwood Women’s Health Center (Redwood), a private medical care provider, for violation of the Information Practices Act of 1977 (Civ. Code, § 1798 et seq.)1 and public disclosure of private facts. Jennifer contends the Information Practices Act protected the confidentiality of her medical records...
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Opinion Beginning in 1979, plaintiff Charles Starzynski was employed as program director for Sacramento radio stations KXPR and *36KXJZ, which are owned and operated by defendant Capital Public Radio, Inc. (CPR). Plaintiff was orally assured by his supervisor, Phil Corriveau, that plaintiff’s employment could be terminated only for good cause. In December 1991, plaintiff signed an “Employment At-...
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Opinion The trial court granted declaratory relief to the insured, finding that the insurer owed a duty to defend. In all other respects, the trial court entered judgment for the insurer. Both parties have appealed. Reversing the trial court’s ruling on the declaratory relief cause of action, we hold there was no duty to defend. We remand for the trial court to enter judgment for the...
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Opinion Centennial Insurance Company (Centennial) appeals from a judgment entered in favor of respondent United States Fire Insurance Company (U.S. Fire) using the “time on the risk” method to apportion the parties’ respective defense costs accrued in defending their mutual insured. Centennial contends the trial court’s choice of a method of allocation based on the carriers’ respective time on th...
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Opinion Willis H. appeals from juvenile court orders removing three children from his custody and denying reunification services. He maintains: (1) the district attorney’s participation in the juvenile dependency proceedings was inappropriate and prejudicial, (2) his trial counsel rendered ineffective assistance, and (3) the court erred in denying reunification. For the reasons discussed below, w...
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Opinion Defendants Longwood Management Corp. (case No. G027263) and Ira David Enterprises, Inc. (case No. G027773) appeal from a *217 denial of their petitions to compel arbitration for failure to authenticate the alleged arbitration agreement; Longwood Management also appeals from the denial of its motion to reconsider. We conclude the court erred in denying the petitions and reverse. Fact...
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Opinion The circumstances which give rise to this appeal are tragic. Plaintiff and respondent Colleen Kane (Colleen) was severely injured and her husband, John Kane (John), was killed while they were participants in a ski clinic being conducted by defendant and appellant National Ski Patrol System, Inc. (NSPS). The clinic was for skiers who wanted to become members of a local voluntary sk...
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Opinion This case raises a single legal question concerning corporate names: may the name of a suspended corporation be reserved and *222 adopted by another corporation? The Secretary of State says yes. Appellants, whose corporate name was taken during a period of suspension, say no. We agree with the Secretary of State. Facts Appellants Bruce and Marian Boyer incor...
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Opinion This is an appeal by intervener County of San Diego (County) 2 from an order of the family law court finding a November 7, 1978 “Modified Findings and Order Re: Support,” concerning “the existing support obligation” of Thomas A. Dupont (Thomas) to Susan C. Dupont (Susan) 3 for child support, was an installment judgment subject to accruing interest “as to each...
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*241 Opinion Nominal plaintiff East Quincy Services District (the District) filed a “Complaint in Intervention” [sic], 1 which interpled General Accident Insurance Company of America (the Surety) and the Division of Labor Standards Enforcement (the Division) as defendants contesting entitlement to funds the District was holding. The defendants subsequently stipulated t...
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Opinion Plaintiff Robert S. Kolodge appeals from the summary judgment granted in favor of defendant Michael E. Boyd in an action for damages for negligence and negligent misrepresentation in appraising certain real property. Appellant contends the trial court erred in concluding he made a “full credit bid” at a nonjudicial foreclosure sale, because the amount of his bid was less than the total ou...
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Opinion In 1994, Orange County filed for bankruptcy. To resolve this financial crisis and assist Orange County to emerge from bankruptcy, the California Legislature passed four bills allocating certain property and sales tax revenues to Orange County’s general fund that were previously allocated to other Orange County public agencies. Steven White, an Orange County taxpayer, brought ...
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Opinion A jury convicted Gary Lawrence Labaer of arson of a structure, arson of the property of another, two counts of battery upon a police officer, and resisting an executive officer. (Pen. Code, 2 §§451, subds. (c) & (d), 243, subd. (b), 69.) The court sentenced Labaer to prison for four years on the arson of a structure count, and imposed a five-year probation term for the ...
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105 Cal. Rptr. 2d 771 (2001) 88 Cal. App. 4th 378 The PEOPLE, Plaintiff and Respondent, v. Patricia HAGEN, Defendant and Appellant. No. E025653. Court of Appeal, Fourth District, Division Two. April 6, 2001. William Flenniken, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, ...
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105 Cal. Rptr. 2d 773 (2001) 88 Cal. App. 4th 384 REDDING RANCHERIA, Petitioner, v. The SUPERIOR COURT of Shasta County, Respondent, Suzanne Hansard, Real Party in Interest. No. C036723. Court of Appeal, Third District. April 6, 2001. Review Denied June 13, 2001. *774 Rapport & Marston and David J. Rapport, Ukiah, for Petitioner. No appearance for Respondent. Dugan Barr & Associates, Redd...
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Opinion Introduction A jury found the defendant, William Murphy, guilty of petty theft with three prior convictions. (Pen. Code, § 666.) 1 It also found that each of the prior convictions was for first degree burglary, and thus each qualified as a “strike” for purposes of the three strikes law. (§ 667, subds. (b)-(i).) The court sentenced him to a prison term of 25 years to life. Murphy a...
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105 Cal. Rptr. 2d 782 (2001) 88 Cal. App. 4th 412 Jere A. JOBE, Plaintiff and Appellant, v. THE CITY OF ORANGE, Defendant and Respondent; Lutheran High School Association of Orange County, Real Party in Interest and Appellant. Nos. G026974, G027732. Court of Appeal, Fourth District, Division Three. April 10, 2001. *783 Maher & Maher and Michael K. Maher, Orange, for Plaintiff and Appellant. D...
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*442 Opinion Santa Barbara Pistachio Ranch and Maple Leaf Pistachio Ranch (plaintiffs) filed suit against Chowchilla Water District (the District), alleging irrigation water provided by the District resulted in the death of several of their mature pistachio trees. At trial, the court ruled the proper measure of damages was the diminution in the value of plaintiffs’ land and the c...
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Opinion Introduction Appellant Chek Ngoun was convicted of the second degree murder of Kevin Martinez (count I), assault with a firearm on two unnamed victims (counts IV and V), being a felon in possession of a firearm (count VI), and participating in a criminal street gang (count VII). Allegations that appellant committed the offenses described in counts I, IV, and V to advance the interests...
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*490 Opinion The question before this court is the commencement of the statutory time period for filing a peremptory challenge to a newly assigned direct calendar judge. (Code Civ. Proc., § 170.6.) 1 We hold the time commences when the parties receive notice of the assignment. In this proceeding, defendant Motion Picture and Television Fund Hospital (defendant) pe...
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105 Cal.Rptr.2d 819 (2001) 88 Cal.App.4th 509 The PEOPLE, Plaintiff and Respondent, v. Eugene PROTSMAN, Defendant and Appellant. No. D034285. Court of Appeal, Fourth District, Division One. March 13, 2001. Review Denied June 13, 2001.[*] Roberta K. Thyfault, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant. *820 Bill Lockyer, Attorney General, David P. Druliner, Ch...
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Opinion The doctrine of workers’ compensation exclusivity is a frequent subject of judicial tweaking. Like the law of search and seizure, the variety of fact patterns seems never ending, and each variation presents yet another opportunity for judicial review. This time we examine whether a claimant may sue her employer’s insurance carrier in superior court for what amounts to the insurer’...
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Opinion Here we conclude that reports prepared by police officers in the performance of their duties are not protected by the attorney-client privilege. *534 The law firm of Green & Shinee attempts to appeal an order by the trial court that releases documents seized from the law film’s offices and sealed by a special master pursuant to Penal Code section 1524, subdivision (c...
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Opinion In some situations a proposed project approved by a local governmental entity subject to the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) 1 may be appealed to the California Coastal Commission (Commission). The question presented by this appeal is whether, when such an appeal is taken to the Commission and it is the Commission which...
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*586 Opinion Appellant, a high school student, had a “razor blade” in his wallet while he was on the high school’s grounds. The juvenile court found true an allegation that appellant had possessed “a razor with an unguarded blade” on school grounds in violation of Penal Code section 626.10, subdivision (a). The court issued an ordering granting appellant probation without wardshi...
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*575 Opinion Background The Howard Gunty Profit Sharing Plan (the Plan) commenced this action in 1998 on behalf of itself and all others similarly situated, against Bank Plus Corporation, its chief executive officer, and its chief financial officer. The original complaint charged negligent misrepresentation, common law fraud, deceit under Civil Code sections 1709 and 1710, a...
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Opinion Defendant Michael James Lavin appeals from a judgment of conviction entered after a no contest plea. He obtained a certificate of probable cause from the trial court to appeal the denial of his motion to dismiss the charges against him for an alleged failure to comply with the Interstate Agreement on Detainers, codified by Penal Code section 1389. 1 We affirm. Procedural History A...
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106 Cal.Rptr.2d 1 (2001) 88 Cal.App.4th 595 The RATCLIFF ARCHITECTS, Cross-Complainant and Appellant, v. VANIR CONSTRUCTION MANAGEMENT, INC., et al., Cross-Defendants and Respondents. No. A089533. Court of Appeal, First District, Division Two. March 23, 2001. *3 Long & Levit, Los Angeles, J. Michael Higginbotham, Richard J. Sciaroni, Bruce N. Furukawa, San Francisco, for Cross-Complainant and...
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*626Opinion Ashok Israni filed a petition for writ of mandate after the trial court denied his application to vacate its prior order granting the City of San Diego’s (City) ex parte application in a condemnation action for an order of immediate possession (OIP) of his property. On the effective date of the OIP, and for some 10 years previously, the property had been leased to the Vietnam Veterans...
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*652 Opinion Luke W. appeals from an order sustaining a supplemental petition (Welf. & Inst. Code, § 602) that alleged he possessed a concealed dirk or dagger. (Pen. Code, § 12020, subd. (a).) He contends the knife found in his possession is not a statutorily prohibited dirk or dagger. Background Appellant was declared a ward of the juvenile court and placed on probatio...
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Opinion In 1972, our Supreme Court held that when a patient gives permission to a doctor to perform one type of surgical procedure but the doctor performs a substantially different operation, “the requisite element of deliberate intent to deviate from the consent given is present” *661 and a battery has been committed. (Cobbs v. Grant (1972) 8 Cal.3d 229...
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Opinion Shawn Simons (Simons) and Allerton, LLC (Allerton; collectively, plaintiffs) appeal from the order granting the motions to quash service *697 of summons 1 made by Mark Steverson (Steverson), an individual, and by Rudolph & Beer, LLP (Rudolph & Beer), a New York limited liability partnership (collectively, defendants). Based on our review of the record ...
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Opinion Introduction The primary issue raised on this appeal is one of insurance coverage. Liberty Mutual Fire Insurance Company (Liberty) issued two policies to Michael McKenzie (McKenzie). Each required that the insured own the covered vehicle. Neither policy defined “owned.” McKenzie submitted claims on each policy based upon the theft of his truck. It is undisputed that the stole...
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Opinion Real party in interest Atchison, Topeka & Santa Fe Railway (Santa Fe) is a public utility that owns the Hobart Yard, an “intermodal” facility in which large shipping containers are transferred from railroad cars to trucks and vice versa. The facility is located partially within the city limits of petitioner City of Vernon (Vernon). Santa Fe has undertaken to expand *674the size and capaci...
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Opinion Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Saf. Code, § 25249.5 et seq.), provides for citizen enforcement if applicable government agencies fail to undertake enforcement after service of an appropriate notice of violation. Here, appellants sent notices relating to alleged violations by various commercial establishments throughout the state...
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Opinion Defendant County of Santa Barbara (County) approved a resort hotel development on a 73-acre beachfront parcel north of the City of Santa Barbara. The parcel is within the boundaries of plaintiff Embarcadero Municipal Improvement District (EMID). The County conditioned its approval of the hotel on the annexation of the parcel to two other special districts, defendants Goleta West Sanitary ...
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Opinion Appellant Terry Herrera appeals from an order denying his petition for writ of mandate in this proceeding to revoke his real estate license. The Department of Real Estate (Department) revoked Herrera’s real estate license pursuant to Business and Professions Code section 10177, subdivision (f),1 based on the suspension of Herrera’s law license. The Department’s disciplinary accusation was ...
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*803 Opinion In 1998 the City of Los Angeles, through the Los Angeles Police Department (Police Department), refused respondent Arthur S. Gifford’s application for a concealed firearm license. (Pen. Code, § 12050.) Gifford filed a petition for writ of mandate (Code Civ. Proc., § 1085), alleging that the Police Department was obligated to give him the license pursuant to a stipulated judgment ...
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Opinion In this family law move-away case, the court permitted two of four children to move away. As we shall explain, a family law court may enter an order which has the effect of separating siblings only when compelling circumstances dictate that such separation is in the children’s best interest. Christopher Brett Williams (Father) and Jamia Sue Williams (Mother) dissolved their marriage and a...
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Opinion The Newhall Land and Farming Company (Newhall) appeals from a judgment entered after the trial court granted summary judgment in favor of McCarthy Construction (McCarthy). We affirm. Contentions Newhall contends that the trial court erred in granting summary judgment because: (1) the complaint alleges defects which implicate the work of McCarthy; (2) McCarthy is not the ...
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Opinion American Surety Insurance Co. (American) appeals from an order that denied its motion to vacate a summary judgment entered on a forfeiture of a bail bond which American provided for criminal defendant Jose Garcia Magana (Magana). The bail was forfeited when Magana failed to appear for sentencing after the trial court had previously indicated to Magana that he would be sentenced to the m...
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Opinion This case presents the question of whether a tenant who takes an assignment of a mortgaged ground lease, expressly assuming its obligations, remains liable to the lessor after foreclosure of the mortgage. Vallely Investments, L.P. (Vallely), the lessor, sued for a declaration that BancAmerica Commercial Corporation (BACC), the assignee, was bound by the lease. Vallely argues the t...
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Opinion Introduction Appellant challenges the finding of a probation violation for the violation of Penal Code section 311.11 on the grounds that the statute is unconstitutional, allowing conviction when the minor “appears” to be under age 18, that expert testimony of “apparent age” is inadmissible and that there is insufficient evidence that appellant knew the actors in the video clips were ...
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Opinion Janice Lee Brimberry White,1 as successor in interest for Susan Ann Brimberry Katzberg (hereinafter collectively referred to as *977mother), appeals from an order granting the motion of respondent Richard W. Katzberg (father) to modify his child support obligations. Mother claims that the trial court failed to follow the statewide uniform guideline (hereinafter the uniform guideline) for ...
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Opinion This appeal requires us to decide whether Business and Professions Code section 2305 1 —a more specific statute—impliedly repeals section 141—a more general one that covers the same subject. Section 2305, the more specific statute, mandates disciplinary action against a medical licensee based on out-of-state discipline that “would have been grounds for discip...
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Opinion In this appeal, we consider whether the fine described under Penal Code section 1202.4, subdivision (a)(2), 1 which is to be “in the form of a penalty assessment in accordance with Section 1464,” requires an underlying fine upon which it can be assessed. Defendant Linda Anne Allen pleaded no contest to one count of burglary. 2 Sentenced to the upper term of six years, she was also...
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Opinion Appellant Scarlett O’Casey was charged by amended information filed April 6, 1999, with four felony counts: making a knowingly false material statement for the purpose of obtaining workers’ compensation benefits as defined in Labor Code section 3207 (Ins. Code, § 1871.4, subd. (a)(1)) (count 1); presenting a knowingly false written or oral material statement in support of a workers’ compen...
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Opinion On the evening of September 16, 1997, Officer Gary Deming of the Oroville Police Department stopped a vehicle because the vehicle had no registration stickers on the rear license plate. Defendant Thomas Robert Bush was the driver and sole occupant of the car. Officer Deming radioed the dispatcher to check the vehicle registration and defendant’s license. Deming learned that t...
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Opinion The Code of Civil Procedure empowers arbitrators in certain cases to impose the discovery sanctions available in superior court. In this case, we hold that an arbitrator’s refusal to impose a discovery sanction provides no ground to vacate the arbitration award, even if the sanction is mandatory under the discovery statutes. Maureen H. Alexander appeals from a judgment confir...
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*1095 Opinion Plainstiffs and respondents Hing Kwan Lo and Yuk Lin Fung were the owners of a condominium in Malibu. Appellant Peter Jensen (as trustee of the Las Vírgenes Trust) and Kevin Ko 1 bought the condominium at a nonjudicial foreclosure sale. On respondents’ complaint, the trial court found that Jensen and Ko violated Civil Code 2 section 2924h, subd...
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Opinion Jason Dan Taylor petitions for writ of habeas corpus, claiming the trial court failed to take a Valid waiver of his right to a jury trial before the court determined he had sustained prior serious felony convictions within the meaning of the three strikes law. (Pen. Code, § 667, subds. (b)-(i).)1 Taylor asserts the United States Supreme Court decision in Apprendi v. New Jersey (2000) 530 U...
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Opinion Defendant Rafael Garcia Alvarez, Jr., appeals from judgment entered against him for murder (count I), 1 assault with a firearm (count II), 2 and resisting a peace officer (count III). 3 The jury further found true allegations that, as to count I, defendant intentionally discharged a firearm causing death 4 (firearm enhancement) and, as to count II, he personally used a firearm. ...
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Opinion Bill and Kimberly B., the parents of the minor Nicholas B., appeal from the jurisdictional and dispositional orders of the juvenile *1129court adjudging the minor a dependent child pursuant to Welfare and Institutions Code section 300, subdivision (b),1 removing the child from their custody and ordering family reunification services. Under subdivision (b) of section 300, it must be proved ...
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Opinion This appeal is from an order awarding attorney fees and costs to respondent Warren Lee. Lee’s original request for fees and costs was denied by the trial court as untimely. Almost six months after the court’s order was entered, Lee sought relief under section 473 of the Code of Civil *1189 Procedure (hereafter section 473), which was granted. Appellant Wells Fargo Ban...
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*1142 Opinion John S., father of the minor, appeals from the judgment of the juvenile court adjudging the minor a dependent and adopting a reunification plan. (Welf. & Inst. Code, §§ 358, 395 [further undesignated statutory references are to this code].) Appellant contends the juvenile court erred in interpreting section 355.1, subdivision (d) so as to find that his status as a r...
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Opinion Academic catfighting or anti-Semitism? Dr. Wendy Slatkin claims the University of Redlands (the University) refused to grant her *1150 tenure because she is Jewish. The University responds that it refused to grant her tenure because of perceived deficiencies in her teaching. Unfortunately for the University, there was evidence that several of the people involved in th...
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Opinion In this dissolution action, the trial court ordered the husband to pay child support. Sometime later, the wife asked the husband for an increase in child support. They resolved the matter without the involvement of the court. The husband agreed to higher payments. The agreement was reduced to writing, which the husband and wife signed. While the agreement was still in effect, the husband ...
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*1313 Opinion Statement of the Case Defendant was charged in a four-count information as follows: count 1, a violation of Penal Code 1 section 211, robbery; count 2, a violation of section 646.9, stalking; count 3, a violation of section 422, making a terrorist threat; and count 4, a violation of section 245, assault with a deadly weapon. It was further alleged that counts 1 and 4 were se...
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Opinion In this case the trial court enjoined 28 named members, including David A. Englebrecht, Jr., and all other members of the Posole street gang from engaging in various activities, e.g., possessing weapons, associating with other gang members, within a designated area of the City of Oceanside. Englebrecht appeals, arguing the trial court erred in denying him a trial by jury on the is...
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106 Cal.Rptr.2d 793 (2001) 88 Cal.App.4th 1353 The PEOPLE, Plaintiff and Respondent, v. Juan Gabriel HERRERA et al., Defendants and Appellants. No. B139597. Court of Appeal, Second District, Division Five. May 10, 2001. Rehearing Denied June 1, 2001. Rehearing Denied June 4, 2001. Review Denied August 22, 2001. *794 John Steinberg and Mark D. Lenenberg, Chatsworth, under appointments by the Court...
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106 Cal. Rptr. 2d 773 (2001) 88 Cal. App. 4th 1426 The PEOPLE, Plaintiff and Respondent, v. Anthony Ronald FRANZ, Defendant and Appellant. No. C034462. Court of Appeal, Third District. May 10, 2001. Rehearing Denied May 24, 2001. Review Denied August 22, 2001. *776 Kathryn Houck, Fresno, under appointment of the Court of Appeal for Defendant and Appellant Anthony Ronald Franz. Bill Lockyer, Attor...
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107 Cal. Rptr. 2d 29 (2001) 88 Cal. App. 4th 1381 LOS ANGELES TIMES, Plaintiff and Appellant, v. ALAMEDA CORRIDOR TRANSPORTATION AUTHORITY, Defendant and Respondent. No. B143895. Court of Appeal, Second District, Division Seven. May 14, 2001. Review Denied September 12, 2001. *31 Gibson, Dunn & Crutcher, Theodore J. Boutrous, Jr. and Timothy L. Alger, Los Angeles; and Karlene W. Goller, Deput...
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*1374 Opinion Jesse Raul Duran, Jr., appeals from a judgment sending him to prison for life plus 17 years. 1 We reverse his carjacking conviction because, as the Attorney General concedes, it was a necessarily included offense within the kidnapping-for-carjacking charge. 2 Duran contends the evidence is insufficient to support the remaining convictions of ki...
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*1413 Opinion Introduction This is a medical malpractice case in which Nathaniel Galvez sues defendant Michael Frields, M.D., for wrongful life, contending that Frields failed to make reasonable efforts to ensure Nathaniel’s mother, Michelle Sepulveda, was given a blood test to detect the presence of the neural tube defect from which Nathaniel suffers. Plaintiff filed this a...
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107 Cal. Rptr. 2d 39 (2001) 88 Cal. App. 4th 1394 Emil POLLAK, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, Defendant and Respondent; State Board of Equalization, Real Party in Interest and Respondent. No. C036231. Court of Appeal, Third District. May 15, 2001. *40 Ben Allamano, for Plaintiff and Appellant. Elise S. Rose, Chief Counsel and Bruce A. Monfross, Staff Counsel, for Defendant and...
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Opinion Ten years ago in People v. Axell (1991) 235 Cal.App.3d 836 [1 Cal.Rptr.2d 411], in an opinion authored by Presiding Justice Stone, we were the first California appellate court to approve the use of deoxyribonucleic acid (DNA) typing evidence to prove identity in a criminal case. Since then, the scientific methodology, while fundamentally the same, has become ...
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Opinion Alfred Frazier appeals from the judgment following his conviction on one count of committing a lewd act with a child under age 14 and one count of annoying or molesting a child under 18. We hold the jury was improperly instructed under former CALJIC No. 2.50.01 and this error prejudiced defendant. Therefore, we reverse. *33 Facts and Proceedings Below Defendant’s convictions follo...
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Opinion Appellants Videotape Plus, Inc., and Marshall W. Brehm appeal from the judgment on the pleadings dismissing their malicious prosecution complaint against respondents Vincent J. Lyons, Dubs, Inc., and Gerald P. Cunningham. After review, we reverse and remand. *159 Procedural And Factual Background 1 Respondent Vincent J. Lyons owns Dubs, Inc., a company i...
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Opinion I. Introduction Cross-defendants Financial Indemnity Company (Financial), Allstate Insurance Company (Allstate), Dennis B. Kass, and Manning & Marder, Kass, Ellrod, Ramirez (the Manning law firm), appeal from orders denying special motions to strike the third amended cross-complaint of Naum “Neil” Shekhter pursuant to Code of Civil Procedure 1 section 425.16 and co...
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Opinion Introduction After she was injured while at work in the Dominican Republic, plaintiff Gina Tucci brought a personal injury action in California against her employer, defendant Club Med. 1 Once the case was at issue, the parties filed competing motions for summary judgment. In her motion, Tucci relied on the provision in the California workers’ compensation law (Lab...
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Opinion I. Introduction Renewal of a judgment is a ministerial act performed by a court clerk upon receipt of an application for renewal. (Code Civ. Proc., §§ 683.120, subd. (b), 683.150, subd. (a); 1 Beneficial Financial, Inc. v. Durkee (1988) 206 Cal.App.3d 912, 915 [254 Cal.Rptr. 351].) Section 683.150, subdivision (a) states: “Upon the filing of the a...
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Opinion These are three appeals from a final judgment and satellite orders entered by the San Francisco County Superior Court in a suit for damages for breach of contract, interference with prospective economic advantage, and defamation. We are asked by plaintiff-appellant to rule the sustention of a demurrer to the amended complaint without leave to amend was erroneous as a matter of law, the ru...
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Opinion Doctor Jack L. Gilliland (Gilliland) and Jose Rivera (Rivera) appeal from the denial of their petition for writ of administrative mandamus. Ron Joseph (Joseph), the Executive Director of the Medical Board of California and Acting Director of the Department of Consumer Affairs, charged Gilliland and Rivera with violating Business and Professions Code section 805 1 becaus...
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Opinion Following defendant’s plea of no contest to felony vandalism (Pen. Code, § 594, subd. (b)(2); further undesignated section references are to the Penal Code), the trial court imposed the upper term of three years in state prison but suspended execution of sentence and placed defendant on probation. Shortly thereafter, defendant admitted violating probation and the trial court imposed the...
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Opinion Upon learning its former in-house counsel planned to sue for wrongful termination of employment, a company struck first by suing the *298 former counsel for disclosing confidential and privileged information to the attorneys handling her wrongful termination case. The former in-house counsel moved to strike the company’s complaint as a SLAPP suit. 1 The com...
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*285 Opinion I. Introduction Plaintiff and cross-complainant Patricia A. Cochran appeals from the judgment of dismissal entered after the trial court sustained without leave to amend the demurrers which defendant and cross-defendant Johnnie L. Cochran, Jr., brought to her cross-complaint for rescission of their 1983 property settlement agreement. 1 She also appeals from the summary judgme...
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*404Opinion Dan R. and Geraldine W., father and mother of 19-month-old Dani, appeal from a judgment declaring their son a dependent of the court and removing him from their parental custody. Father contends the juvenile court’s jurisdictional findings under Welfare and Institutions Code section 300, subdivision (b) and order removing Dani from his physical custody are not supported by substantial ...
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*410 Opinion Appellant Pink Dot, Inc. (Pink Dot), a grocery delivery service which relied heavily on customers’ telephone orders, sued respondent Teleport Communications Group (Teleport), alleging that when negotiating for a centralized telephone system Teleport falsely represented its reliability and falsely claimed the ability to implement Caller ID. Pink Dot further complained...
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Opinion This case requires us to determine whether a trial judge may find an alleged prior conviction “not true” based on the trial judge’s personal belief the prosecution should have to prove the validity of the waiver of Boykin-Tahl 1 rights, even in the absence of a challenge on that ground by the defendant. After rehearing, 2 we conclude the prosecution is not required to prove, as an e...
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Opinion Petitioner, Garden Grove Police Department, argues the trial court abused its discretion when it ordered the police department to disclose the birth dates of three police officers to the Orange County District Attorney for the purpose of running criminal records checks. The police department contends the court should have required the defendant to comply with the Pitchess process (Pitches...
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Opinion Evidence Code section 1360 establishes a procedure whereby evidence of a statement made by a victim under the age of 12 that would otherwise be treated as hearsay may be admitted in criminal prosecutions for specified sex offenses if (among other requirements) the trial court determines that “the time, content, and circumstances of the statement provide sufficient indicia of relia...
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Opinion Plaintiff Daniel R. Solin, an attorney, retained O’Melveny & Myers, LLP (O’Melveny) to obtain advice regarding Solin’s representation of Edith Reich and Brigitte R. Jossem (together referred to as the Clients). In that regard, Solin disclosed certain privileged and confidential information of the Clients (the Secrets), which implicated them in criminal activities. Solin sued ...
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Opinion Appellant Marcus T. appeals from judgment of the juvenile court declaring him a ward of the court pursuant to Welfare and Institutions Code section 602 and placing him home on probation after finding that he threatened a public officer in violation of Penal Code section 711 and made a terrorist threat in violation of Penal Code section 422.2 He contends the court erred in finding he commit...
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Opinion Fowler v. Superior Court (1984) 162 Cal.App.3d 215 [208 Cal.Rptr. 408], a criminal case, holds that a county’s obligation to preserve “recordings of telephone and radio communications” for more than 100 days arises only when the county has actual notice that such recordings “are evidence in any claim filed or any pending litigation.” (Gov. Code, § 26202.6.) 1 ...
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Opinion Under Civil Code 1 section 2924c, subdivision (e), the trustors under a deed of trust have the right to cure a default and reinstate the loan “at any time . . . until five business days prior to the date of sale” set forth in the initial or subsequent notice of sale or orally declared on the date of any postponement. Under section 2924g, subdivision (d), a foreclosure s...
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*532 Opinion Cotrastees appeal from an order of the probate court directing payment of the unsatisfied portion of a judgment entered against the decedent from assets of the decedent’s revocable inter vivos trust. They contend the probate court erred in concluding Probate Code section 19001 authorized payment to judgment creditors from trust assets without requiring the creditors to first sue ...
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*607 Opinion The demurrers of defendants and respondents Health Industries of America, Inc., et al. 1 (defendants) to the third amended complaint of plaintiffs and appellants William Leader and Leader Psychiatric Medical Group (plaintiffs) were sustained with leave to amend. Plaintiffs did not file a fourth amended complaint within the time specified by the court. More...
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Opinion A jury found that Motor Sound Corporation (Motor Sound) committed fraud in inducing Zaxis Wireless Communications, Inc. (Zaxis) to remain as its subagent in selling wireless services. Zaxis was awarded $190,000 in compensatory damages. In a bifurcated proceeding the jury awarded Zaxis $300,000 in punitive damages. Motor Sound does not contest the finding of fraud, the magnitude of harm to...
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*594 Opinion Juan Salazar-Merino pled guilty to “using a false document to conceal his . . . true citizenship or resident alien status” in violation of Penal Code section 114, and was sentenced to five years in state prison, with probation denied. 1 Appellant contends on appeal that: (1) his trial counsel rendered ineffective assistance by recommending a guilty plea wi...
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Opinion Which statute of limitations applies to a general contractor’s claims against an architect and construction manager for economic losses sustained due to their alleged professional negligence during construction? Instead of the two-year statute governing claims for breach of an oral contract (Code Civ. Proc., § 339, subd. 1), the general contractor in this case urges us to apply the four-y...
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Opinion Defendant and appellant Stephen Paley (Paley) appeals a postjudgment order in favor of plaintiffs and respondents Martha Rose Ames, Rose J. Schurter, as trustee of the Rose J. Schurter Revocable Trust, and Rojo Corporation (hereafter plaintiffs), modifying the judgment so as to make interest thereon retroactive. The essential issue presented is whether the trial court had the inherent powe...
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*626 Opinion 1. Introduction In September 1999, Sports Illustrated and an HBO television program, Real Sports, used the 1997 team photograph of a Little League team to illustrate stories about adult coaches who sexually molest youths playing team sports. Plaintiffs, all of whom appear in the photograph, were formerly players or coaches on the Little League team. The ...
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Opinion Liang Tai Knitwear Co., Ltd. (Manufacturer) and Hong Yuan Industrial Co., Ltd. (Marketer) (collectively defendants) are in the garment business here in Los Angeles. Lou Yu Jie (Wife) and Fu E. Min (Husband) (collectively plaintiffs) both worked for defendants in the garment business. After defendants laid off plaintiffs, plaintiffs sued, alleging their terminations were retaliator...
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Opinion The instant appeal involves the common scenario of a failure to appear by a person cited for a traffic violation. As a result of the failure to appear, a warrant is issued pursuant to Vehicle Code section 40515,1 and a new charge of failure to appear, in violation of Vehicle Code section 40508, subdivision (a),2 is appended to the underlying traffic charge. (See People v. Superior Court (1...
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*787 Opinion In proceedings authorized by Welfare and Institutions Code section 6600 et seq., 1 the district attorney petitions for an extraordinary writ of mandate. He seeks an order directing the trial court not to hold a scheduled probable cause hearing on a petition to recommit real party as a sexually violent predator. We conclude that the trial court correctly interpreted the Sexually...
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*749 Opinion Defendant and appellant Northridge Park Townhome Owners Association, Inc. (Northridge Park) appeals an amended judgment obtained by plaintiff and respondent Robert E. McClellan doing business as McClellan Design and Construction (McClellan) naming Northridge Park as an additional judgment debtor. The essential issue presented is whether substantial evidence supp...
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Opinion Plaintiff and appellant First Commercial Mortgage Company doing business as FCMC Mortgage Company (First Commercial), an Arkansas corporation, appeals a judgment following a grant of summary judgment in favor of defendants and respondents Donald R. Reece (Reece), John Andrade and Andrade Financial, a California corporation (Andrade) (collectively, defendants). *735The defendants allegedly...
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Opinion Lawrence Anthony Cuevas was convicted of robbing three banks in Alameda County during the fall of 1997. Because of his lengthy felony criminal record, Cuevas was sentenced under the “Three Strikes” law to a total prison term of 85 years to life. He appeals his conviction and sentence on the following grounds: (1) ineffective assistance of counsel for failure to make a suppression ...
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Opinion Introduction Community Redevelopment Agency of the City of Los Angeles (CRA) and the County of Los Angeles (County) dispute the manner in which *721 property tax revenue is shared. The dispute centers on County’s interpretation of Revenue and Taxation Code section 95.3 (section 95.3), which reduces the amount of revenue that CRA receives. We uphold County’s inter...
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Opinion When appointed counsel in a conservatorship appeal fails to discover an arguable issue, must the Court of Appeal independently review the record upon a request per People v. Wende (1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071]?1 Yes. I A unanimous jury found Margaret L. gravely disabled, and the court extended her existing conservatorship.2 We appointed an attorney to represent he...
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Opinion This case involves the differing tax consequences between a contractor’s consumption of “materials” and its sale of “fixtures” as defined in section 1521 of the Board of Equalization’s (Board) Sales and Use Tax Regulations (Cal. Code Regs., tit. 18, § 1521; hereafter Regulation 1521). Richard Boyd Industries, Inc. (Boyd) manufactures and installs various kinds of signs on real pro...
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Opinion I. Introduction Under the “Three Strikes” law, the court must impose a consecutive sentence for each current offense “not committed on the same occasion, and not arising from the same set of operative facts . . . -” 1 (Pen. Code, §§ 667, subd. (c)(6), (7), 1170.12, subd. (a)(6), (7).) Conversely, if the current offenses were committed on the same occasion a...
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Opinion Summary This case addresses whether the 45-day period specified in Labor Code section 3725 for filing a petition for writ of mandate from an order of the *893 Labor Commissioner is extended five days under the provisions of Code of Civil Procedure section 1013. We conclude that section 1013 does not apply to the jurisdictional time limit for filing a writ petitio...
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Opinion Plaintiff and appellant National Technical Systems (plaintiff or the subcontractor) appeals a postjudgment order denying its motion to summarily enforce a judgment against United Pacific Insurance Company (the surety), the surety on a stop notice release bond. The essential question presented is whether plaintiff is entitled to enforce a money judgment against the surety pursuant to the s...
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Opinion Pinkerton, Inc., 1 seeks review of an order of the Workers’ Compensation Appeals Board (Board) denying its petition for reconsideration and affirming an award in favor of Tinishia Samuel. Pinkerton contends that it gave sufficient notice of change of the primary treating physician. While the statute and regulation are not clear as to what notice is required, we conclude...
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Opinion Angel Valdez appeals from his involuntary commitment as a mentally disordered offender (MDO) under Penal Code section 2960 et seq. 1 He contends the evidence was insufficient to prove three of the five criteria required for an MDO commitment because (1) his underlying conviction of sexual battery under section 243.4 did not involve force or violence and did not otherwise qualify as an...
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*977Opinion The Lanterman-Petris-Short Act (LPS Act)1 is intended to provide prompt, short-term, community-based intensive treatment, without stigma or loss of liberty, to individuals with mental disorders who are either dangerous or gravely disabled. (Conservatorship of Chambers (1977) 71 Cal.App.3d 277, 282 [139 Cal.Rptr. 357].) When involuntary intensive treatment is indicated, the LPS Act aut...
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Opinion Plaintiff and respondent Mike Lenk (Lenk) filed suit against his former employer, defendant and appellant Total-Western, Inc. (TWI), for breach of contract and fraud. In a bifurcated trial, the jury found in favor of Lenk and awarded him $210,320 in compensatory damages, $50,000 in emotional distress damages and $1 million in punitive damages. In the unpublished portion of th...
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Opinion This is an appeal from a judgment entered after the superior court denied a petition for writ of mandate, filed by appellants, by which they sought to compel the City of Pleasanton (the City) to set aside Measure P, a referendum measure defeated at a June 8, 1999 municipal election. We will affirm. Background Appellants are the owners and the proposed developer of a 45.75-acre parce...
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Opinion Plaintiff and real party in interest Ryan N. (Ryan), then 13 years of age, was sexually assaulted by another minor, defendant Joseph W. (Joseph) who was then 16 years of age, 1 while both teenagers were visiting a teenage son of petitioners and defendants Nicanor Romero and Gail Romero (together petitioners or the Romeros) in petitioners’ home. Ryan’s mother, real party...
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Opinion In this action for indemnification, the trial court found the indemnification clause in the parties’ contract to be unenforceable because there was no mutual consent of the parties and because the clause was “procedurally” unconscionable. We reverse the judgment. Facts The Agreement Marin Storage & Trucking, Inc., doing business as Reliable Crane & Rigging (hereafter Reliable), is in th...
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Opinion In San Bernardino Valley Audubon Society v. Metropolitan Water Dist. (1999) 71 Cal.App.4th 382 [83 Cal.Rptr.2d 836], we reversed a trial court judgment which approved a mitigated negative declaration for a project consisting of the adoption of the Lake Mathews Multiple Species Habitat Conservation Plan and Natural Community Conservation Plan (MSHCP/NCCP or Project). We foun...
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Opinion On the evening of January 31, 1997, plaintiff Jamal Hassoon was wounded when he was hit by a round fired from a semiautomatic weapon by a passerby. The shooting occurred as Hassoon stood in Daldas Grocery, defendants’ grocery store on Eddy Street in the Tenderloin district of San Francisco. Plaintiff filed this suit for personal injury damages against the store’s.owners and one of their...
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Opinion On May 24, 2000, the Orange County Juvenile Court declared Nada R. and Reema R. dependents and placed them in the physical custody of their mother, Maria G. Father Abdulaziz R. petitioned for a writ of habeas corpus and also appeals the judgment. Both have been consolidated for review.1 He argues (1) the juvenile court lacked subject matter jurisdiction, (2) certain evidentiary rulings dep...
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Opinion Plaintiffs and appellants Jaimie and Christopher Fuller, and Brooke, Jamie and Robin Knowles, filed actions for wrongful death when their decedents were killed in an automobile accident on Highway 395 near the community of Olancha in Inyo County. Plaintiffs sued the other motorists involved, as well as defendant and respondent State of California, Department of Transportation (hereafter...
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Opinion 1. Introduction Real party in interest and appellant, Inland Counties Regional Center, Inc., doing business as Inland Regional Center, a California nonprofit corporation (IRC), appeals judgment entered in favor of plaintiff and respondent Ion Morgan Mason (Morgan). The State Department of Developmental Services (DDS) is also a respondent in this case and has filed a r...
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Opinion Notwithstanding a negotiated plea agreement that stipulated defendant was vulnerable to a six-year prison term, he challenges his six-year sentence. On our own motion, we noted that defendant had failed to obtain a certificate of probable cause and we asked the parties to file supplemental briefs addressing the significance of this fact. As discussed below, the appeal will be dismissed bec...
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Opinion An employer delayed in paying workers’ compensation benefits. When the employer made a retroactive payment, it failed to include accrued interest. The Workers Compensation Appeals Board (WCAB) imposed two consecutive 10 percent penalties: one for the late benefit payment and one for the failure to pay interest. (Lab. Code, § 5814.) We hold that when an employer or carrier makes a late work...
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Opinion Introduction Plaintiff Denver D. Darling, Inc., doing business as Darco Construction (Darco), a subcontractor, sued the general contractor, defendant Controlled Environments Construction, Inc. (Controlled) to recover the retention proceeds being withheld by Controlled. Darco also filed suit against Aetna Casualty & Surety Company of America (formerly Travelers’ Insurance, ref...
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*1246 Opinion A party testified falsely while under oath at his deposition. The original transcript of the deposition, unseen by the deponent, is sent to. his counsel where it remains. Here we conclude; that, although the testimony purportedly was false, it was contained in a document that was yet to be delivered and, therefore, did not constitute perjury in violation of Penal Co...
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Opinion I. Introduction The People of the State of California (People), represented by the Attorney General and a number of district and city attorneys, sought civil penalties, restitution, and injunctive relief against Fremont Life Insurance Company (Fremont Life) and its parent company, Fremont General Corporation (defendant) in an action alleging unfair business practices and false *1263 ...
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*1287 Opinion Introduction Phillip Gangwish, injured while a firefighter/inspector for the City of Los Angeles Fire Department (City), petitions this court for increased compensation under Labor Code section 4650 for late payment of permanent disability (PD) benefits, and under section 5814 for nonpayment under section 4650. 1 The Workers’ Compensation Appeals Board (WCAB) denied the incr...
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Opinion Plaintiffs Rebecca Craddock and Ronald Craddock sued defendant Kmart Corporation for personal injury and premises liability arising out of an accident suffered by Rebecca Craddock at a Kmart store. Plaintiff Ronald Craddock, Rebecca’s husband, alleged loss of consortium. (We sometimes refer to the plaintiffs by their first names for clarity.) After jury trial, plaintiffs won a special verd...
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Opinion Defendant Antonio Trujillo Garcia appeals from the judgment entered after a jury convicted him of spousal rape. He raises several claims of trial court error, primarily centered around the requirement of corroboration mandated by Penal Code section 262, subdivision (b). 1 He contends: (1) the trial court erred in denying the motion to dismiss the charge of spousal rape for lack of cor...
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Opinion Respondent James A. Petricka was arrested for driving under the influence of alcohol (Veh. Code, § 23152). A chemical test of his blood revealed a blood-alcohol level of .15 percent. Appellant Department of Motor Vehicles (DMV) suspended Petricka’s driver’s license after an administrative hearing. Petricka sought judicial review of the suspension by a petition for writ of mandate, in wh...
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Opinion California Constitution, article I, section 14, provides in part, “A person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings.” We are called upon to determine if the failure to follow the procedures regarding noncertified interpreters set forth in California Rules of Court, rule 984.2, 1 in and of itself, ...
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*1364 Opinion Joe Quintana was convicted by a court of foreign object penetration of a minor who was under age 14 and more than 10 years younger than he (Pen. Code, § 289, subd. (j)), and was sentenced to the low term of three years in state prison. He argues that the judgment must be reversed because: (1) there was no substantial evidence of vaginal penetration; or (2) he was un...
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Opinion In this case arising under the “Three Strikes” law, defendant Steve Byrd appeals from a judgment following his conviction for 12 counts of robbery (Pen. Code, § 211 1 ), one count of mayhem (§ 203), one count of attempted premeditated murder (§§ 664/187, subd. (a)), and one count of possession of a firearm by a convicted felon (§ 12021, subd. (a)(1)), with enhancements for personal us...
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Opinion Introduction This is an appeal by Wilshire Center Marketplace (WCM) from an order denying its motion to quash and recall a writ of execution on a judgment issued to the Los Angeles Unified School District of Los Angeles County (LAUSD). The primary issues presented are (1) whether the judgment became final before WCM was awarded its appellate litigation expenses; (2) whether t...
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Opinion In mandamus proceedings alleging failure to comply with the California Environmental Quality Act (CEQA), the petitioner is required to request a hearing within 90 days of filing the petition. (Pub. Resources Code, § 21167.4, subd. (a).) 1 In Dunn-Edwards Corp. v. Bay Area Air Quality Management Dist. (1992) 9 Cal.App.4th 644 [11 Cal.Rptr.2d 850] (Dunn-Edwards), 2 this court held t...
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Opinion Maria Carrillo Corona, a Mexican national, pleaded guilty to conspiracy to transport marijuana (Pen. Code, § 182) and was placed on formal probation for three years. Corona appeals, contending the court erroneously denied her motion to suppress incriminating statements she made to the police officers. She contends that the officers did not (1) advise her of her rights under the Multilat...
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108 Cal.Rptr.2d 262 (2001) 90 Cal.App.4th 22 Judith NEAL, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; Herman NEAL, Real Party In Interest. No. G028185. Court of Appeal, Fourth District, Division Three. June 21, 2001. *263 Law Offices of McGregor & Mosier, Holly H. McGregor and Robert A. Mosier, Laguna Hills, for Petitioner. No appearance for Respondent. Martin & McCormick, Joh...
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Opinion Appellant Michelle Lynn Shoup appeals from Sacramento County action Nos. 98M09139 and 96F07655. It appears that action No. 98M09139 was at all times a prosecution for misdemeanor offenses only, which resulted in misdemeanor convictions by a jury. Action No. 96F07655 was a proceeding to revoke probation in a felony case which was consolidated for hearing with action No. 98M09139. At th...
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Opinion Denise Rossi appeals from a postjudgment order in this dissolution case, awarding all the lottery winnings concealed by Denise *36during the dissolution proceedings to her ex-husband, Thomas Rossi.1 Her argument is twofold: that Thomas had unclean hands and therefore was not entitled to a share of the lottery prize, and that her conduct did not meet the statutory definition for the penalt...
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108 Cal.Rptr.2d 198 (2001) 90 Cal.App.4th 45 Richard Crawford WYCKOFF, et al., Plaintiffs and Appellants, v. The STATE of California, Defendant and Respondent. No. H020015. Court of Appeal, Sixth District, Division Four. June 4, 2001. Review Denied September 12, 2001. *199 Stuart B. Esner and Andrew N. Chang, Los Angeles, Esner & Chang; Greene, Broillet, Taylor, Wheeler & Panish, Browne G...
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108 Cal.Rptr.2d 266 (2001) 90 Cal.App.4th 28 GREAT WESTERN BANK, Plaintiff, v. Herman KONG, Defendant and Appellant; Frank Lee et al., Defendants and Respondents. No. F034149. Court of Appeal, Fifth District. June 22, 2001. *267 Thomas & Snell and Marcus D. Magness, Fresno, for Defendant and Appellant. Arter & Hadden, Irvine, Ralph A. Kerstetter, San Francisco, and Carol A. Jasinski, for Defendan...
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108 Cal.Rptr.2d 553 (2001) 90 Cal.App.4th 215 Michael Frank GOODWIN, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Los Angeles County Sheriff's Department et al., Real Parties in Interest. No. B149818. Court of Appeal, Second District, Division Five. June 26, 2001. *555 Jeffrey S. Benice, Irvine, for Petitioner. Steve Cooley, District Attorney, Brentford J. Ferreira and Shi...
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*231Opinion An heir hunter locates a missing or lost heir. As consideration for information concerning the inheritance, the heir executes an assignment giving the heir hunter a percentage of the inheritance. She also signs, but later revokes, a general power of attorney in favor of the attorney who represents the heir hunter. She also refuses to sign a letter authorizing the attorney to represent...
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108 Cal.Rptr.2d 278 (2001) 90 Cal.App.4th 142 DANA COMMERCIAL CREDIT CORPORATION, Plaintiff and Respondent, v. FERNS & FERNS et al., Defendants and Appellants. No. B133453. Court of Appeal, Second District, Division Three. June 27, 2001. *279 Ferns, Adams & Associates, Barry Ferns, Paasadena, and Laurel Adams, Concord, for Defendants and Appellants. Younesi & Yoss, Jan A. Yoss, Los An...
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Opinion The statewide uniform guideline for determining child support permits the court, in lieu of using actual income, to impute income to a parent based on his or her earning capacity. Earning capacity, in turn, requires that the parent have both the ability and the opportunity to work. In State of Oregon v. Vargas (1999) 70 Cal.App.4th 1123 [83 Cal.Rptr.2d 229], we held this same earning capa...
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109 Cal.Rptr.2d 145 (2001) 90 Cal.App.4th 275 Barry A. FISHER, as Receiver, etc., Plaintiff and Respondent, v. Ronald Gene GIBSON, Defendant and Appellant. No. B139450. Court of Appeal, Second District, Division Two. June 28, 2001. *147 Cole & Loeterman and Dana M. Cole, Los Angeles, for Defendant and Appellant. Saltzburg, Ray & Bergman and Paul T. Dye, Los Angeles, for Plaintiff and Resp...
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108 Cal.Rptr.2d 753 (2001) 90 Cal.App.4th 288 COUNTY OF SAN LUIS OBISPO, Petitioner, v. The SUPERIOR COURT of San Luis Obispo County, Respondent; Jack Munari, Real Party in Interest. No. B147202. Court of Appeal, Second District, Division Six. June 28, 2001. Rehearing Denied July 27, 2001. Review Denied October 10, 2001. *755 James B. Lindholm, Jr., San Luis Obispo, County Counsel, Raymond A. Bie...
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108 Cal.Rptr.2d 739 (2001) 90 Cal.App.4th 255 Carla R. DUDLEY, Plaintiff and Appellant, v. DEPARTMENT OF TRANSPORTATION, Defendant and Respondent No. C036154. Court of Appeal, Third District. June 28, 2001. *741 Martinez-Senftner Law Firm, Gloria P. Martinez-Senftner, Sacramento, and Jonathan Regent Tyrell, for Plaintiff and Appellant. Bruce A. Behrens, Chief Counsel, Breland C. Gowan, Deputy Chi...
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Opinion Defendant Duke Kimberly Bolter, an inmate at Pelican Bay State Prison (PBSP), is charged with the murder of fellow inmate William Stanton Boyd. The trial court granted defendant’s Penal Code section 995 motion as to one of three alleged special circumstances, and dismissed the charge under section 190.2, subdivision (a)(10), that the victim was a witness to a crime and was intentionally ki...
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109 Cal.Rptr.2d 154 (2001) 90 Cal.App.4th 297 Andrew HOLMES et al., Plaintiffs and Respondents, v. CALIFORNIA NATIONAL GUARD et al., Defendants and Appellants. Andrew Holmes, Plaintiff and Appellant, v. California National Guard et al., Defendants and Respondents. Nos. A083451, A085180. Court of Appeal, First District, Division Three. June 29, 2001. Review Denied October 17, 2001. *158 Howard, Ri...
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108 Cal.Rptr.2d 669 (2001) 90 Cal.App.4th 466 Carl E. JONES et al., Plaintiffs, Cross-defendants and Appellants, v. Raymond J. WAGNER et al., Defendants, Cross-complainants and Respondents. No. E026412. Court of Appeal, Fourth District, Division Two. June 8, 2001. *671 Caldwell, Kennedy & Porter and Ruth Ann Magnuson, for Plaintiffs, Cross-defendants and Appellants. Thorpe and Thorpe, Vincent...
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108 Cal.Rptr.2d 821 (2001) 90 Cal.App.4th 494 Henry BARNETT, Plaintiff and Appellant, v. PENSKE TRUCK LEASING CO., L.P., et al., Defendants and Respondents. No. B140195. Court of Appeal, Second District, Division One. July 3, 2001. Review Denied September 26, 2001. *822 Law Offices of A. Jay Norton and A. Jay Norton for Plaintiff and Appellant. Ford, Walker, Haggerty & Behar and Maxine J. Leb...
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Opinion Appellant David A. Clark, Jr. (Clark), a bail bondsman, appeals from an order that found he had no interest in certain real property obtained by one of his bail bond clients with embezzled funds, and enjoined him from executing or recording any instrument affecting the property. 1 On appeal, Clark challenges the order on jurisdictional, legal and constitutional ground...
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Opinion In late 1996 and early 1997 MedPartners, Inc. (MedPart-ners), and a different entity, Southern California Medical Corporation (SCMC), filed lawsuits against appellants Albert E. Barnett, Gloria Mayer (G. Mayer) and Thomas Mayer (T. Mayer) (the underlying action). In the underlying action, MedPartners and SCMC alleged appellants engaged in a variety of misconduct, including making ...
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Opinion Mother appeals from the order terminating her parental rights under Welfare and Institutions Code section 366.26.1 Mother also petitions for a writ of habeas corpus seeking reversal of the order on the ground of ineffective assistance of counsel occurring in connection with the termination hearing. In the published portion of this opinion, we conclude mother is entitled to seek habeas corp...
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*539 Opinion Dana K. Ferrell appeals a judgment awarding him damages in his inverse condemnation action against the County of San Diego (County). Ferrell contends the trial court erred by (1) excluding the testimony of his appraisal expert, and (2) not awarding him certain costs and attorney fees under Code of Civil Procedure section 1036. 1 County filed a cross-appeal and contends the tria...
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109 Cal.Rptr.2d 359 (2001) 90 Cal.App.4th 579 AICCO, INC. et al., Plaintiffs and Appellants, v. INSURANCE COMPANY OF NORTH AMERICA et al., Defendants and Respondents. No. A092096. Court of Appeal, First District, Division Five. July 10, 2001. Rehearing Denied July 31, 2001. Review Denied October 10, 2001. *362 Barger & Wolen, Irvine, Roxani M. Gillespie, Kent R. Keller, Los Angeles, *363 Stev...
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109 Cal.Rptr.2d 233 (2001) 90 Cal.App.4th 637 Keli CWYNAR et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Appellant. No. A089841. Court of Appeal, First District, Division Two. July 10, 2001. Review Denied September 26, 2001. *238 John E. Mueller, Nielsen, Merksamer, Parrinello, Mueller & Naylor, LLP, Los Angeles; Barbara E. Herzig, Herzig & Berlese, ...
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Opinion Defendant Gary P. Pietak appeals from a trial court ruling denying his motion under Code of Civil Procedure section 473 1 to “reopen” an interpleader action dismissed by plaintiff State Farm Fire & Casualty Company (State Farm) so that he may file a cross-complaint against State Farm. In a published opinion issued on February 22, 1999, this court reversed, concludi...
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108 Cal.Rptr.2d 833 (2001) 90 Cal.App.4th 617 In re the MARRIAGE OF Carol C. and William H. DUNCAN, Jr. Carol C. Duncan, Appellant, v. William H. Duncan, Jr., Appellant. No. D033482. Court of Appeal, Fourth District, Division One. July 11, 2001. Review Denied October 10, 2001. *835 Law Offices of Marjorie G. Fuller, Marjorie G. Fuller, Fullerton; Seltzer Caplan *836 Wilkins & McMahon, Gerald ...
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Opinion In this case we decide that the Career Executive Assignment (CEA) program does not violate the civil service mandate of the California Constitution. However, the implementing regulations that allow selection and transfer of applicants without ranking them violate statutes implementing the constitutional requirement of a “system based on merit ascertained by competitive examination.” As we ...
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Opinion After joint jury trial of brothers Mario Dwayne and Tyrone Dushawn Griffin, Mario was convicted of first degree burglary, felonious assault, and two counts of vandalism, and Tyrone was convicted of first degree burglary and one count of vandalism. 1 Mario appeals from his conviction and sentence on the grounds that; (1) the trial court failed to correctly instruct the jury regarding t...
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Opinion Tyrone J. and Corinna C., the parents of Marinna (the minor), appeal from orders of the juvenile court directing that the Yolo County Department of Social Services (DSS) make efforts to locate an appropriate adoptive family for the minor, denying a motion by Corinna for modification, and terminating their parental rights. (Welf. & Inst. Code, §§ 366.26, 388, 395; further unspecified secti...
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*769Opinion Robyn R. appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26., subd. (b)(1))1 and an order denying a section 388 petition to return her children. The trial court found that the children were adoptable and that adoption was the least detrimental placement alternative. (§ 366.26, subd. (c)(1).) We affirm. Facts and Procedural History On October 17, 1997...
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Opinion In this dependency proceeding, Rosie H. (appellant), the mother of the minors, Manolito and Paradise, appeals from an order of the juvenile court denying appellant visitation with the minors. (Welf. & Inst. Code, §§ 388, 395; further unspecified statutory references are to this code.) *756Appellant claims that, in finding by a preponderance of the evidence that visits would be detrimental...
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108 Cal.Rptr.2d 860 (2001) 90 Cal.App.4th 837 Pamela Warren PORTER, Plaintiff and Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant and Respondent. No. B145178. Court of Appeal, Second District, Division Five. July 16, 2001. Law Offices of Janice Weberman and Janice Weberman, for Plaintiff and Appellant. *861 Law Offices of David Mains, Long Beach, Margaret A. Klug; and Law Offices ...
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109 Cal.Rptr.2d 343 (2001) 90 Cal.App.4th 775 Kelly MORSON et al., Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent; Medline Industries, Inc., et al., Real Parties in Interest. No. D037161. Court of Appeal, Fourth District, Division One. June 15, 2001. Review Denied October 10, 2001. *345 Rose, Klein & Marias, Encino, David A. Rosen, Arlyn M. Latin, Peter H. Crossin, Los Ang...
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108 Cal.Rptr.2d 870 (2001) 90 Cal.App.4th 810 CALIFORNIA STATE UNIVERSITY, Fresno Association, Inc., Petitioner, v. The SUPERIOR COURT of Fresno County, Respondent, McClatchy Company, Real Party in Interest. The Board of Trustees of the California State University et al., Petitioners, v. The Superior Court of Fresno County, Respondent, McClatchy Company, Real Party in Interest. Nos. F037383, F037...
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108 Cal.Rptr.2d 863 (2001) 90 Cal.App.4th 843 DEAUVILLE RESTAURANT, INC., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Lawrence N. Taylor et al., Real Parties in Interest. No. B148105. Court of Appeal, Second District, Division Seven. July 16, 2001. Review Denied October 17, 2001.[*] *864 Troy & Gould and Jeffery W. Kramer, for Petitioner. Morrison & Foerster, Raymond L. W...
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108 Cal.Rptr.2d 888 (2001) 90 Cal.App.4th 864 Steven P. HASKETT, as Trustee, etc., Plaintiff and Appellant, v. The VILLAS AT DESERT FALLS et al., Defendants and Appellants. No. D033915. Court of Appeal, Fourth District, Division One. July 17, 2001. *890 James S. Graham, San Diego, for Plaintiff and Appellant. Middlebrook, Kaiser & Popka, Michael R. Kaiser, Palm Springs, Jeff M. Yoss; Payne &a...
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108 Cal.Rptr.2d 904 (2002) 90 Cal.App.4th 887 The PEOPLE, Plaintiff and Respondent, v. Ty L. TRUONG, Defendant and Appellant. No. A091063. Court of Appeal, First District, Division Two. July 18, 2001. *905 Ford Greene, under appointment by the Court of Appeal, Hub Law Offices, San Anselmo, CA, for Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Rona...
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Opinion Tenants leased a single-family residence. The lease had an attorney’s fees and costs provision. The landlord failed to provide a habitable dwelling. A fire resulted, destroying the tenants’ personal property. At the time, the tenants were behind in their rent. This lawsuit ensued, and the tenants recovered damages for the loss of their property, and the landlord recovered the back rent. T...
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108 Cal.Rptr.2d 914 (2002) 90 Cal.App.4th 944 The PEOPLE, Plaintiff and Respondent, v. Juan Ramon DUBON, Defendant and Appellant. No. B142170. Court of Appeal, Second District, Division Three. July 19, 2001. Review Denied October 24, 2001. *916 Carlos Vellanoweth, John Wolfgang Gehart and Elena Yampolsky, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorne...
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108 Cal.Rptr.2d 924 (2002) 90 Cal.App.4th 937 In re EDUARDO C, a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Eduardo C, Defendant and Appellant. No. B142094. Court of Appeal, Second District, Division Four. July 19, 2001. Fay Arfa, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. D...
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109 Cal.Rptr.2d 436 (2001) 90 Cal.App.4th 958 PACLINK COMMUNICATIONS INTERNATIONAL, INC., et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; Ivan Yeung et al., Real Parties in Interest. No. B149318. Court of Appeal, Second District, Division Four. July 19, 2001. *437 Gronemeier & Associates, Dale L. Gronemeier, South Pasadena, Kristine L. Olsen; Law Offices of Alber...
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109 Cal.Rptr.2d 429 (2001) 90 Cal.App.4th 968 The PEOPLE, Plaintiff and Respondent, v. Creighton O'Dell SCHOFIELD, Defendant and Appellant. No. B149435. Court of Appeal, Second District, Division Six. July 19, 2001. *430 Robert B. Lilley, Atascadero, for Appellant. Gerald T. Shea, District Attorney, County of San Luis Obispo and Curtis A. Rankin, Deputy District Attorney, for Respondent. YEGAN, A...
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109 Cal.Rptr.2d 454 (2001) 90 Cal.App.4th 987 Jill KLAJIC, et al., Plaintiffs and Appellants, v. CASTAIC LAKE WATER AGENCY, Defendant and Respondent. No. B137258. Court of Appeal, Second District, Division Three. July 20, 2001. Review Denied October 24, 2001. *456 Jennifer Kilpatrick, for Plaintiffs and Appellants. Robert H. Clark, General Counsel, and Kane, Ballmer & Berkman, R. Bruce Tepper...
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109 Cal.Rptr.2d 482 (2001) 90 Cal.App.4th 977 Robert HANSEN, Plaintiff and Respondent, v. AEROSPACE DEFENSE RELATED INDUSTRY DISTRICT LODGE 725 of the International Association of Machinists and Aerospace Workers, Defendant and Appellant. Maria Des Ermia, Plaintiff and Respondent, v. Aerospace Defense Related Industry District Lodge 725 of the International Association of Machinists and Aerospace...
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109 Cal.Rptr.2d 489 (2001) 90 Cal.App.4th 1081 Douglas F. HENSLEY, Plaintiff and Appellant, v. Patricia E. McSWEENEY, Defendant and Appellant. No. F029415. Court of Appeal, Fifth District. July 23, 2001. Review Denied October 31, 2001.[**] Michael Linn, for Plaintiff and Appellant. Askew & Archbold, James A. Askew and Richard M. Archbold, Stockton, for Defendant and Appellant. Certified for P...
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Opinion The dispute underlying this appeal arose out of a series of real estate transactions in which developer Craig Caldwell, one of the defendants below, persuaded respondent Lawrence. Saks, M.D., to invest. Dr. Saks’s financial involvement with Caldwell began in May 1990 and ended a few months later in August 1990. During that time, Dr. Saks became embroiled in approximately half a dozen land...
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109 Cal.Rptr.2d 515 (2001) 90 Cal.App.4th 1151 LANCE CAMPER MANUFACTURING CORPORATION, Plaintiff and Appellant, v. REPUBLIC INDEMNITY COMPANY OF AMERICA, Defendant and Appellant. No. B131976. Court of Appeal, Second District, Division Two. July 23, 2001. Rehearing Denied August 22, 2001. Review Denied November 20, 2001. *517 Mahoney, Coppenrath & Jaffe, Walter G. Coppenrath, Jr., Howard M. Ja...
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Opinion May parties engaged in private dispute resolution stipulate to the appointment of a judicial referee or judge pro tempore to secure a *1108settlement enforceable by the court under Code of Civil Procedure section 664.6?1 Not unless they seek the reference in pending litigation. This appeal was taken from an order of the Superior Court of San Francisco County purporting to enforce an insura...
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109 Cal.Rptr.2d 583 (2001) 90 Cal.App.4th 1094 Marcelino OREGEL, Plaintiff and Respondent, v. AMERICAN ISUZU MOTORS, INC., Defendant and Appellant. No. D036615. Court of Appeal, Fourth District, Division One. June 25, 2001. *584 Bacalski, Byrne & Koska and Christopher J. Workman, San Diego, for Defendant and Appellant. Law Offices of Michael E. Lindsey and Michael E. Lindsey, Los Angeles, for...
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Opinion In this action arising out of a judgment lien obtained by plaintiff and respondent F. M. Bratcher, doing business as Bratcher Construction Co. (Bratcher) against defendant and appellant Robert Buckner (Buckner), Bratcher obtained a writ of execution and levy against certain real property located in Dulzura, California, owned by Buckner (the Dulzura property). Bratcher thereafter s...
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Opinion The petitioner, 20th Century Insurance Company, seeks a writ of mandate directing the trial court to vacate and set aside an order granting the motion of the real party in interest, Linda P. Ahles, to reconsider an earlier order sustaining a demurrer to Ahles’s complaint without leave to amend. 1 Ahles had filed a complaint against 20th Century for breach of a contrac...
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109 Cal.Rptr.2d 591 (2001) 90 Cal.App.4th 1221 Craig A. MOBLEY, Plaintiff and Appellant, v. LOS ANGELES UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents. No. B144531. Court of Appeal, Second District, Division Four. July 24, 2001. Rehearing Denied August 3, 2001. Review Denied October 17, 2001. *593 Craig A. Mobley, in pro. per., for Plaintiff and Appellant. Bergman, Wedner & Dacey,...
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*1321Opinion I. Introduction Petitioner Arlene Robertson (Robertson) seeks a writ of mandate to overturn an order of the trial court overruling her demurrer to real party’s second amended complaint. That complaint implicated title to real property, including Robertson’s home, in Marin County, and her demurrer was based on statute of limitations grounds. In overruling it, the trial court held that ...
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109 Cal.Rptr.2d 674 (2001) 90 Cal.App.4th 1403 ESTATE OF Earl GUIDOTTI, Deceased. Darlene Guidotti, Petitioner and Appellant, v. Bill Lockyer, as Attorney General, etc., Claimant and Respondent. No. B145085. Court of Appeal, Second District, Division Six. July 25, 2001. *675 J.K. George and Anne C. Cyr, Los Osos, for Petitioner and Appellant. No appearance for Claimant and Respondent. GILBERT, P....
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109 Cal.Rptr.2d 638 (2001) 90 Cal.App.4th 1294 Ronald PANICO et al., Plaintiffs and Appellants, v. TRUCK INSURANCE EXCHANGE, Defendant and Respondent. No. G024336. Court of Appeal, Fourth District, Division Three. July 25, 2001. *639 John K. Saur, Laguna Hills, for Plaintiffs and Appellants. Hollins, Schechter, Feinstein & Condas and Jack H. Snyder, for Defendant and Respondent. OPINION SILL...
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109 Cal.Rptr.2d 725 (2001) 90 Cal.App.4th 1409 The PEOPLE, Plaintiff and Respondent, v. Mark GORDON, Defendant and Appellant. No. D035265. Court of Appeal, Fourth District, Division One. July 27, 2001. Review Denied October 31, 2001.[*] *726 Gisela Caldwell, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief A...
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110 Cal.Rptr.2d 72 (2001) 90 Cal.App.4th 1427 Gagik BALTAYAN, Plaintiff and Appellant, v. ESTATE OF Maro GETEMYAN, et al., Defendants and Respondents. No. B136807. Court of Appeal, Second District, Division Seven. July 30, 2001. *74 Law Office of Philip E. Carey and Philip E. Carey, Sacramento, for Plaintiff and Appellant. Law Offices of Ira Cohen and Ira Cohen, Agoura Hills, for Defendants and R...
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Opinion Introduction When an employer unlawfully fires or discriminates against an employee, recent federal and California cases hold that the employer may not necessarily escape liability through so-called after-acquired evidence of other wrongdoing by the employee showing he would have been fired for other reasons. At issue here is whether that rule bars expert medical testimony of...
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*60Opinion Petitioner seeks a writ of prohibition directing the trial court to dismiss count 2 of a pending information charging appellant with conspiracy to commit murder. This petition raises the question whether a defendant, whose conviction for conspiracy to commit second degree murder was reversed on appeal for trial error, may now be retried for conspiracy to commit first degree murder with...
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Opinion The defendant accumulated 92 cats and kept them in a 7%-foot by 11-foot trailer, providing less than one square foot for each cat. Convicted by jury of felony animal cruelty and placed on probation, she appeals. She asserts the trial was tainted by instructional error, due process violations, and evidence that should have been suppressed. We affirm. Procedure The defenda...
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Opinion In this case, we review two orders entered in a marital dissolution action. One order modifies spousal support and the other awards sanctions. In the first order, the trial court retroactively reduced the husband’s spousal support obligation and allowed him a partial recovery of his support overpayments. Both parties challenge that order. Arguing against the husband’s recovery of any supp...
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*147Opinion In this case, we must decide whether the People are required to present evidence supporting “Three Strikes” prior conviction allegations at preliminary hearings. Petitioner Jermaine Marquice Thompson was charged with possession of cocaine. The complaint also alleged he had suffered two prior convictions within the meaning of the Three Strikes law. While acknowledging that California c...
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Opinion In this case of first impression, we address administrative regulations implemented in 1995 to govern reimbursement of private hospitals that provide acute psychiatric care to Medi-Cal beneficiaries. Plaintiffs Glendale Memorial Hospital & Health Center, Long Beach Community Hospital, Northridge Hospital Medical Center, and Presbyterian Intercommunity Hospital (Hospitals) sought a...
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Opinion The respondent superior court held petitioner, Steven G. Hanson, an attorney, in contempt for comments he made while representing a client in a criminal proceeding. Petitioner primarily argues the respondent’s court order should be annulled because it fails to set out facts in its *78 support. Because we conclude the respondent’s court order of contempt constitutes an...
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Opinion In these consolidated class actions against Apple Computer, Inc. (Apple), the court entered judgment certifying a nationwide class and approving a class settlement. Francis X. Doherty and James S. Rudolph, who objected to the class settlement in the trial court, appeal. They argue that the settlement was not fair and reasonable, that the trial court applied improper criteria in ce...
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Opinion I. Introduction Defendant, Greenwood Auto Center, appeals from portions of a judgment awarding damages and attorney fees to plaintiff, Carmen Moreno, in an action brought for fraud, conversion, and violation of the Vehicle Leasing Act (the act). (Civ. Code, § 2985.7 et seq.) 1 In the published portion of the opinion, we discuss whether prejudgment interest may be recovered in a conv...
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Opinion Healthand Safety Code section 11379, subdivision (a),1 provides: “[E]very person who transports . . . any controlled substance . . . shall be punished by imprisonment in the state prison . ...” A jury convicted defendant Matthew Paul LaCross of two counts of violating this statute. Defendant contends he did not “transport” methamphetamine because he used his bicycle to carry it. Section 1...
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Opinion On April 2, 2000, appellant was cited by Santa Monica Police Officer Michael Solis for violation of Santa Monica Municipal Code section 6.36.040, subdivision (a),1 vending in the City of Santa Monica without first obtaining and possessing a vendor permit issued by the Chief of the Santa Monica Police Department. Appellant was subsequently charged with the same violation in a misdemeanor c...
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Opinion Euel Branch (appellant) was convicted by a jury of two sexual offenses: (1) committing a lewd and lascivious act upon a child under the age of 14; and (2) using a foreign object to penetrate the genital opening of a child under the age of 14 who was more than 10 years younger than the perpetrator. For both offenses, appellant’s victim was Sarah G. An allegation that appellant had had su...
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Opinion On April 4, 2000, the Los Angeles County District Attorney’s Office (hereinafter appellant) filed a three-count misdemeanor complaint against Sandra Lynn McNorton (hereinafter respondent). The complaint alleged violations of the following sections of the Vehicle Code: count 1, section 23152, subdivision (a), driving a vehicle under the influence of an alcoholic beverage; count 2, section 2...
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Opinion Real Party in Interest Eller Media Company (Eller) requested certain documents from the Los Angeles County Metropolitan Transportation Authority (the MTA) pursuant to the California Public Records Act (Gov. Code, § 6250 et seq.). 1 When the MTA refused to turn the documents over, Eller filed a petition for a writ of mandate in the Los Angeles County Superior Court (case...
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Opinion Welfare and Institutions Code section 14124.70 et seq., allows the state to place a lien on a settlement or judgment obtained by a *327 Medi-Cal beneficiary against a third party when Medi-Cal payments were used to treat an injury for which the third party is liable. We conclude that an award under the National Vaccine Injury Compensation Program (NVICP) (42 U.S.C. § ...
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Opinion John Ronald Brown was convicted by a jury of one count of second degree murder and one count of the unlawful practice of medicine. (Bus. & Prof. Code, § 2053.) He pleaded guilty to an additional seven counts of the unlawful practice of medicine. As to the unlawful practice of medicine count, the jury found true that appellant inflicted great bodily injury on a person 70 years of a...
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Opinion Appellant Robert Lee Kennedy was convicted of a misdemeanor violation of Business and Professions Code section 4060 (hereafter section 4060), after he was found in possession of Valium without a prescription. Appellant contends the misdemeanor conviction must be reversed, because possession of Valium without a prescription may not be punished under section 4060. We reject this arg...
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Opinion The issue presented by this appeal is whether a litigant can peremptorily challenge a judge pursuant to Code of Civil Procedure section 170.6, subdivision (2)1 after the judge’s dismissal of the action based on the allegations in the complaint is reversed on appeal. In this action, the trial court granted defendant’s motion to dismiss the complaint concluding the action was barred by the s...
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Opinion Appellant Patricia O. is the natural mother of Patricia T., Arturo T., and Damian S.1 Appellant contends that she did not understand that her waiver of a contested dispositional hearing would result in the denial of reunification services. We affirm. Relevant Factual and Procedural Background Respondent Jose T. is the natural father of Patricia and Arturo, who were bom, respectively, in 1...
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Opinion The defendant, Marcus A., appeals from an order committing him to the California Youth Authority (CYA) after a contested dispositional hearing, arguing that the proceedings were improperly initiated pursuant to Welfare and Institutions Code section 777. 1 The People concede that prejudicial error occurred. We agree and reverse. *425 Facts and Procedural Hi...
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Opinion Rental Equipment, Inc., appeals from a judgment in favor of respondents McDaniel Builders, Inc. and Developers Insurance Company, on its action for foreclosure on a mechanic’s lien. We affirm. Summary A preliminary notice under Civil Code 1 section 3097 is a necessary prerequisite to enforcement of a mechanic’s lien. (§ 3097, subd (a).) Such a notice must incl...
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Opinion In this case, the trial court found that a dissolution judgment properly recorded by appellant Dana J. Gregg and duly indexed under the name of the judgment debtor, appellant’s former spouse James Michael Cloney, was not constructive notice to respondent Lloyd A. Launer as the subsequent purchaser of real property from that same judgment debtor holding title to the subject property under ...
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110 Cal.Rptr.2d 627 (2001) 91 Cal.App.4th 454 CONSUMER CAUSE, INC., Plaintiff and Appellant, v. SMILECARE et al., Defendants and Respondents. No. B147727. Court of Appeal, Second District, Division One. August 9, 2001. Rehearing Denied August 21, 2001. *630 Law Offices of Morse Mehrban and Morse Mehrban, Los Angeles, for Plaintiff and Appellant. Bill Lockyer, Attorney General, Richard M. Frank, C...
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Opinion Petitioner Karen H., mother of the minor Kairra, seeks an extraordinary writ (Cal. Rules of Court, rule 39.IB) to vacate the orders of the juvenile court made at the dispositional hearing denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing (further undesignated section references are to this code). Petitioner also requests a stay of proc...
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Opinion Plaintiffs Jack N. Martin and Anita L. Martin (the Martins), appeal from a judgment of dismissal entered upon an order sustaining the demurrer of defendant Wells Fargo Bank (the bank) to their first amended complaint. The bank issued business credit cards to the Law Offices of Jack Martin, one in the name of plaintiff Jack N. Martin, and one in the name of plaintiff Anita L. ...
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*590 Opinion Francisco G., father of the child Esmeralda G., files this petition for extraordinary writ challenging the findings and orders of the juvenile court in setting a hearing pursuant to Welfare and Institutions Code section 366.26. 1 (§ 366.26, subd. (/); Cal. Rules of Court, rule 39.IB.) Father argues that the juvenile court erred in ordering a bypass of reunification services pur...
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Opinion Traditionally, minors could be tried as adults only when a juvenile court found them unfit for that court’s jurisdiction. But Proposition 21, the Gang Violence and Juvenile Crime Prevention Act, passed by the electorate on March 7, 2000, changed that. Now 14- through 17-year-olds accused of certain crimes are subject to mandatory direct filing in adult court (Welf. & Inst. Code, §...
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Opinion On August 9, 2000, the trial court made a true finding that Joshua M. (minor) had committed the crime of unlawful peeking. (Pen. Code, § 647, subd. (i).) 1 At the dispositional hearing, the minor was declared a ward of the court, placed on probation, and ordered to serve 18 days in juvenile hall. The minor contends that the true finding in this matter must be reversed because section ...
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Opinion In July 1996, Carlos R. Tapia pled guilty to one count of robbery. A three-year state prison sentence was imposed and *740 suspended, and “formal” probation was granted for a term of three years (which meant it would expire on July 10, 1999). Tapia was ordered to spend one year in jail, then to report to the probation department “within 24 hours of [his] release”; if he left the C...
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Opinion Appellants Ashley and Alexa Arnold, through Michelle Arnold, as guardian ad litem, appeal from a judgment entered after the trial court granted summary judgment in favor of respondents Q.B. Scott Company, Inc. (Scott), Lumber City Corporation (Lumber City), Ezell Nursery Supply, Inc. (Ezell), Dow Agrosciences, LLC, and The Dow Chemical Company (collectively referred to as Dow), Va...
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*626Opinion The jury found defendant and appellant Frederick Ray Brown guilty of forcible rape (Pen. Code, § 261, subd. (a)(2); count l)1 and incest (§ 285; count 2). The trial court found true the special allegations that Brown had suffered two prior serious felony convictions within the meaning of section 667, subdivision (a), and the “Three Strikes” law (§ 1170.12), and had served five prior p...
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Opinion In an initial custody determination the trial court awarded primary physical custody to the mother, who intends to move with the children to New Mexico. Because the trial court found the move was not motivated by bad faith, it did not abuse its discretion. We affirm. Facts Michael A. and Laurel C. Bryant1 were married in 1985. They have two children of their marriage, ages six and nine. B...
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Opinion In this quiet title action, plaintiffs appeal from the trial court’s refusal to grant an injunction compelling the removal of certain encroachments by defendants on plaintiffs’ residential property. The court granted the defendants an interest in plaintiffs’ land in order to protect defendants’ use of the disputed areas. The court labeled that interest “an easement.” However, the ...
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Opinion This case involves two consolidated appeals. In the first (B137602), American Contractors Indemnity Company (American Contractors) appealed from orders denying its motions to vacate forfeiture of a bond. In the second (B144246), the County of Los Angeles (County) appealed from an order setting aside summary judgment and exonerating the same bond. Both appeals present the issue of whether ...
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Opinion This is an action under Welfare and Institutions Code 1 section 14124.70 et seq. Under that statutory scheme, “[w]hen benefits are . . . provided to a beneficiary . . . because of an injury for which another person is liable . . . the director [of the Department of Health Services] shall have a right to recover from such person ... the reasonable value of benefits so pr...
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Opinion Alexandra Patarak and other residents of Hilltop Mobile Manor (residents), a mobilehome park in Atascadero, sued the park’s owner, Linda Williams (landlord), for violating the Mobilehome Residency *828 Law (MRL). They alleged and proved that she willfully did not maintain the park’s septic system and willfully denied reasonable access to the common areas of the park. ...
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Opinion I. Introduction This appeal from the denial of an anti-SLAPP suit motion requires us to come to the following conclusions: (1) Because the Legislature has specified that the anti-SLAPP suit law (Code Civ. Proc., § 425.16) is to be construed broadly, the provision in the law that a special motion to strike “may be filed within 60 days of the service of the complaint” (§ 4...
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Opinion When is possession more than possession? When an unconstitutional statute creates a legal presumption that possession means a great deal more. *855 A petition filed under Welfare and Institutions Code section 602 alleged appellant Christopher K. possessed a firearm (Pen. Code, § 12101, subd. (a); count I), and obliterated the identification of a firearm (Pen. Code, § 12090; count II...
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Opinion Plaintiff CBS Broadcasting Inc. (CBS), a New York corporation, petitions this court for a writ of mandate to compel the Los Angeles County Superior Court to grant its motion for injunctive relief to restrain defendant State Department of Social Services (DSS) from refusing to comply with its request for disclosure under the California Public Records Act (PRA). (Gov. Code, § 6250 et seq.)1 ...
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Opinion Appellant Kim David Lockley appeals from a judgment of dismissal upon the trial court’s order sustaining a demurrer without leave to *879 amend in favor of respondent Law Office of Cantrell, Green, Pekich, Cruz & McCort et al. (hereinafter Law Office) on Lockley’s cause of action for legal malpractice. Lockley alleged Law Office failed to protect Lockley’s legal inter...
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Opinion This is an employment discrimination case under the California Fair Employment and Housing Act. In the unpublished portion *862 of this opinion, we hold the trial court did not commit prejudicial error in admitting certain documents used by respondents to impeach appellant’s testimony. Accordingly, we affirm the verdict in favor of respondents. However, in the publish...
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*926 Opinion Introduction Vincent J. Duffy appeals from that portion of the judgment which finds that he breached his fiduciary duty of disclosure to his spouse, Patricia A. Duffy, and awards her damages for the breach of $400,684. Patricia Duffy appeals from that portion of the judgment which denies her attorney’s fees incurred in asserting and trying her breach-of-fiduciar...
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Opinion Dixie Jane Fraizer (Fraizer) appeals from judgment entered following order granting summary judgment in favor of defendant Hymavathi Velkura, M.D. (Velkura). She contends the trial court erroneously granted summary judgment in that she had standing to assert the claim for the wrongful death of her granddaughter. Statement of Facts and Procedural History Julia Marie Fraizer-Calderon ...
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Opinion In this personal injury case, we hold that defendant County of San Diego (County) and its employees did not have a mandatory duty to *978 prevent an adolescent from running away from Polinsky Children’s Center (Polinsky), where he was placed after being taken into protective custody. Because there was no statutory basis to impose negligence liability on the defendants...
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Opinion I. Introduction This case involves a postpayment audit of a Medi-Cal provider’s claims. Such audits are required under both federal and state law. (42 C.F.R. §§ 447.45(f)(2), 456.3 (2000); Welf. & Inst. Code, § 14170, subd. (a)(1).) No Medi-Cal payments were withheld from the provider. The California Department of Health Services (DHS) administers MediCal, the federal Me...
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*964Opinion Phillip Stanley Wolfe (Phillip) and Joyce Davis Wolfe (Joyce) separated in May 1994, following an 11-year marriage. Phillip appeals from the August 25, 1999, judgment of dissolution following trial on the property issues. He argues the court erred in: (1) dividing equally the $60,000 equity line debt; (2) reimbursing Joyce for separate property payments toward daily living expenses in...
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Opinion Under the Civil Discovery Act of 1986, the trial court must impose monetary sanctions against anyone engaging in conduct that is a misuse of the discovery process, and must order the abuser to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. Under Trope v. Katz (1995) 11 Cal.4th 274, 277 [45 Cal.Rptr.2d 241, 902 P.2d 259], a pro se la...
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Opinion A retailer sold gasoline using a two-tier pricing system, one price for cash, another for credit cards. Signs that were “clear as day” were posted at each gas station to show the difference: *1073 [[Image here]] This opinion explains why, on the facts of this case, the retailer’s pricing system was a permissible discount, not an unlawful surcharge. Facts ...
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Opinion Cesar V., biological and presumed father of Anthony and presumed father of Annissa, and Cesar’s mother, Elvia E., seek extraordinary relief from the order of the juvenile court refusing to place the children with Elvia. They claim the social worker failed to assess Elvia properly under the relative placement preference, and the juvenile court should have independently evaluated he...
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Opinion I. Introduction On August 5, 1998, before the present proposed class action was ever filed, the Los Angeles County District Attorney and the Attorney General, each acting on behalf of the People of the State of California, secured separate judgments against defendants in the present lawsuit, Trans World Airlines, Inc. (TWA) and National Collection Systems, Inc., doing business as National...
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Opinion Under Family Code section 3653 a party who makes overpayments of support may obtain reimbursement. We conclude that retroactive application of section 3653 is constitutional.1 Jean Marie Dandona appeals a modification order requiring her to reimburse William Araluce for child and spousal support overpayments he made to her over a 14-month period, beginning February 1, 1999.2 We conclude th...
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Opinion Defendant, Orlando James, was charged with possession of marijuana for sale (Health & Saf. Code, § 11359), sale or transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)), and resisting, obstructing or delaying a peace officer in the performance of the officer’s duty (Pen. Code, § 148, subd. (a)(1)). He was also charged with having two prior serious or violent felony ...
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Opinion The principal issue in this writ proceeding is whether the trial court erred in granting real party in interest summary adjudication, terminating a cause of action brought under the unfair competition law (UCL). 1 The cause of action asserts that a bank was responsible for false and misleading advertising in promoting a credit program as “Same-As-Cash” when it was not. ...
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Opinion Following the denial of his motion to suppress evidence under Penal Code section 1538.5, Harold Lee Britton pleaded guilty to a charge under Health and Safety Code section 11350, subdivision (a), for possession of heroin. He asserts the magistrate erred by permitting the prosecution to respond orally to his motion rather than requiring it to file and serve a timely written response, the...
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Opinion Following his convictions of first degree murder and robbery, Vernon Leroy Barker appeals, asserting that the trial court (1) improperly instructed the jury they could convict him of murder based only upon his possession of property stolen from the victim and “slight” corroborating evidence, (2) erroneously failed to give the jury an instruction on the lesser included offense of theft, ...
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Opinion After two unsuccessful attempts to provide armed correctional officers in the Santa Clara County jail when control of the jail was transferred from the sheriff (Sheriff or Sheriff’s Office) to the newly formed county Department of Correction (Correction), in 1997 the Santa Clara County Board of Supervisors retransferred jail functions requiring armed officers to the Sheriff. Correctional ...
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Opinion In this family law case, the husband sought to reduce spousal and child support in connection with a request for custody of one of the children of the marriage. The trial court granted the custody request but increased the husband’s support payments based on two factors. First, the trial court assigned the husband a tax filing status of “married filing jointly.” In fact, the husband had r...
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Opinion Defendant and appellant, Wesley Eugene Scott, appeals from the judgment entered following his conviction, by jury trial, for assault with a firearm and felon in possession of a firearm, with firearm use, great bodily injury, prior prison term and prior serious felony enhancements (Pen. *1201 Code, §§ 245, 12021, 12022.5, 12022.7, 667.5, 667, subd. (a)(1)). 1 Sentenced to a state pri...
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Opinion Introduction Plaintiff and appellant Stephen Craig Nicolopulos appeals from a judgment of dismissal following the sustaining of a demurrer without leave to amend to his first amended complaint against the City of Lawndale, the Lawndale City Council, and individual members of the Lawndale City Council. Appellant was the elected city clerk of Lawndale. In February 2000, th...
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Opinion Appellants, Rick Webb and Mary Leon, challenge the trial court’s finding that a business automobile liability policy issued by respondent, Allied Mutual Insurance Company (Allied), to Dallas Brothers Farms (Dallas Brothers) did not provide coverage for an accident caused by a Dallas Brothers employee. The trial court concluded that, although the subject pickup truck was covered as...
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Opinion Mary Etta Bowen (appellant) filed an order to show cause, seeking a share of the Flying Tiger Lines (Flying Tiger) pension plan *1294benefits of her former husband, Edmund L. Bowen (respondent). In affixing the share to be paid to appellant, the court took into consideration not only the number of years respondent worked for Flying Tiger, but also the number of years respondent worked for ...
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Opinion May a trial court defer entry of judgment for a child molester, absent the People’s consent? No. Contrary to defendant’s view, a statute precluding judges from doing so does not violate the separation of powers doctrine. The People charged defendant with eight counts of child molestation, alleging substantial sexual conduct as to one count. (Pen. Code, §§288, subd. (a), 1203.066, subd. (a...
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Opinion Real parties in interest Crystal B., Steven G., and Anita G. (hereinafter Minors) have asserted personal injury claims against County of Los Angeles (County) for the physical and psychological abuse they allegedly received while placed in foster care. County denied their application to file late tort claims under the relevant provisions of what is popularly, albeit *1306not officially, kn...
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111 Cal.Rptr.2d 439 (2001) 91 Cal.App.4th 1276 Sue GAMET et al., Plaintiffs and Appellants, v. Christopher BLANCHARD et al., Defendants and Respondents. No. G020908. Court of Appeal, Fourth District, Division Three. August 29, 2001. Review Denied November 14, 2001. *441 Sue Gamet, in pro. per.; and Kurt A. Stiefler, Woodland Hills, for Plaintiffs and Appellants. Martin P. Eramo, Laguna Beach, for...
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Opinion In what is often perceived to be the typical case involving the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq. [further undesignated statutory references are to the Public Resources Code]), a zealous citizens group challenges the approval of a development project by asserting that a government entity failed to consider possible adverse environmental effec...
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Opinion Here we consider whether a bicycle lock on a chain may be a “slungshot” within the scope of the Dangerous Weapons Control Law. (Pen. Code, § 12000 et seq.) We conclude that it may be, if the evidence proves the defendant carried it as a weapon. The San Mateo County District Attorney charged Johnny Ralph Fannin with possessing a slungshot, in violation of Penal Code section 12020, *1401sub...
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Opinion In this marital dissolution action, appellant Joseph A. Destein, Jr., challenges the amount of guideline child support awarded. In *1388significant part, the court derived the award by imputing a rate of return to appellant’s separate property real estate, which was non-income-producing. Appellant contends the trial court erred principally because it had no discretion to impute income to ...
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Opinion Appellants Jose and Elsa Chavez brought this civil action for the wrongful death of their adult son, who was killed by a drunk driver. The trial court granted the defendant’s motion for summary adjudication on the ground that appellants lacked standing to sue for their son’s death. Because we conclude that there are triable issues of material fact on the question of appellants’ st...
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Opinion In action No. A091354 plaintiff and appellant Concord Communities, L.P. (Communities), doing business as Diablo Mobile Lodge, appeals from a judgment of the Contra Costa County Superior Court denying Communities’ petition for writ of administrative mandamus and dismissing Communities’ cause of action for violation of due process against defendant and respondent City of Concord (City). Simi...
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Opinion After a court trial in a marital dissolution action, the court entered judgment regarding the character and disposition of certain property of the parties. On appeal, the husband contends that the trial court erred with regard to wife’s severance pay, certain stock options, and a diamond ring. We find no error by the trial court with regard to wife’s severance pay and the stock options, b...
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Opinion Melanie Welch (Welch) and Mark Petrofsky (Petrofsky) separately filed petitions for peremptory writ of mandate after they were dismissed from their teaching positions with the Oakland Unified School District (District) on a 15 days’ notice of termination. The trial court granted the petitions, finding that they were probationary employees entitled to 30 *1424 days’ notice and a right ...
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Opinion In this case, we consider whether five statutory programs that fall within the general rubric of “affirmative action” violate state and federal principles of equal protection and are contrary to article I, section 31, of our state Constitution, added by the adoption of Proposition 209 at the November 1996 General Election (hereafter Proposition 209). The litigation, commenced...
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Opinion Kathleen S., the mother of minor Jonathan D., appeals from the juvenile court’s order terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)1 The mother contends the juvenile court erred by failing to require compliance with the notice provisions of the Indian Child Welfare Act (the Act). (25 U.S.C. § 1901 et seq.) We agree. Factual and Procedural Background In May 1999 a ...
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Opinion Defendant Donald Laroy Stevens entered a negotiated plea of no contest to one count of evading a police officer (Veh. Code, § 2800.2) and one count of driving with more than 0.08 percent alcohol in his blood (Veh. Code, § 23152, subd. (b)), admitted a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) and two prior convictions for driving under the influence (DUI), and ...
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Opinion This action arises from “one of our Nation’s newest problems of public policy”: the question of where to dispose of low-level radioactive waste (LLRW). (New York v. United States (1992) 505 U.S. 144, 149 [112 S.Ct. 2408, 2414, 120 L.Ed.2d 120].) In 1985, the State Department of Health Services (Department) selected plaintiff US Ecology, Inc. (Ecology) to develop and ope...
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*158 Opinion Angela Moran sued the Oso Valley Greenbelt Association (Association) for failure to produce the Association’s minutes for inspection. Although the court found the board of directors’ meeting minutes had been “wrongfully” withheld and ordered the minutes produced, the court declined to award Moran her attorney fees and costs pursuant to Corporations Code section 8337....
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Opinion Background After the juvenile court entered an order denying reunification services and setting a hearing under Welfare and Institutions Code section 366.26, Linda B.’s (Mother) attorney filed a notice of appeal from the order, instead of a petition for extraordinary writ. 1 Shortly after filing an opening brief, Mother’s appellate counsel also filed a petition for writ of habeas co...
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*164 Opinion Defendant Jason Robert Ruiz was convicted of two counts of robbery and one count of attempted robbery and was sentenced to an 80-year-to-life term in prison. He appeals, claiming (1) his absence from the trial requires reversal; (2) an aggregate term approach should have been used to calculate his minimum sentence under the three strikes law 1 or, alternat...
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Opinion The criminal law often punishes more harshly an accused who already has a criminal conviction than an accused who has none. The three strikes law is one example. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (b)-(e).) Petty theft with a prior is another. (Pen. Code, § 666.) Vehicle Code sections 23152 and 23550 constitute yet another. 1 Normally punishable as a mi...
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Opinion Appellant, Crystal J., appeals the juvenile court’s denial of her motion to declare her aunt and uncle, Deborah and Orrie G., her de facto parents. In addition, she claims the juvenile court abused its discretion in failing to place her with Deborah and Orrie. In the published portion of this opinion we find that appellant lacks standing to appeal the court’s ruling on the de facto parent...
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Opinion Plaintiff City of Stockton (City) moved to exclude the testimony of the valuation expert for defendant Albert Brocchini Farms, Inc., in this action for eminent domain. The trial court found the expert’s opinion did not have a sufficient factual basis and excluded it. The defendant then stipulated to entry of judgment at the value that the plaintiff’s experts assigned. On appeal, t...
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Opinion Plaintiffs and appellants El-Com Hardware, Inc. (El-Com), Paul Zamberg, and Elie Vrobel appeal a summary judgment granted in favor of defendant and respondent Fireman’s Fund Insurance Company on appellants’ action for breach of an insurance contract and breach of the covenant of good faith and fair dealing. They contend respondent was obligated to defend them under the insurance ...
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Opinion The scope of Penal Code section 591 (section 591)—which makes it a crime unlawfully and maliciously to injure or obstruct a telephone *222 line “or appurtenances or apparatus connected therewith”—seems to have become a recurring appellate issue. Here, we will hold that the jury could properly find defendant Michael Martin Tafoya guilty under section 591 based on the evidence that, dur...
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Opinion Relying on People v. Garcia (1999) 21 Cal.4th 1 [87 Cal.Rptr.2d 114, 980 P.2d 829], Mark Anthony Jensen contends in this proceeding that the trial court erroneously treated a prior juvenile adjudication as a strike. We issued an order to show cause and, having reviewed the matter, agree with Jensen’s contention. Accordingly, we grant the writ. *264 ...
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Opinion J.—Defendant and appellant Guillermo Constante appeals from the judgment entered against him and in favor of plaintiff and respondent North 7th Street Associates. This is an action in unlawful detainer. The complaint was based on appellant’s failure to vacate the premises following expiration of a 30-day notice to quit. Immediately before trial, respondent made an oral motion to amend the ...
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Opinion Due to the procedural nature of this petition, this court finds the petition meritorious, but no writ of mandate need be issued. The response filed in this case is ordered stricken. *Supp. 4Petitioner Artice Simpson (hereinafter petitioner) filed a petition for writ of mandate directing respondent, the Superior Court of Los Angeles County, to vacate its order denying petitioner’s applicat...
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Opinion A jury convicted defendant of transportation of 135.3 grams of marijuana in his car. (Health & Saf. Code, 1 § 11360, subd. (a).) Defendant contends the trial court erred by (a) failing to instruct the jury, sua sponte, on mistake of fact because defendant believed he was entitled to transport marijuana under the Compassionate Use Act of 1996 (§ 11362.5); 2 (b...
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Opinion This is a marital dissolution action. At issue on appeal are child support, spousal support, and attorneys’ fees. Because the trial court erred in setting support and in denying fees, we reverse and remand. *280Facts and Procedural History Appellant Iris M. Fraser (Iris) and respondent David R. Cheriton (David) were married in February 1980.1 They have four children, all bom between 1980 ...
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*374 Opinion Petitioners herein and defendants below, Barmas, Inc., doing business as Hair At Fred Segal, Michael A. Baruch and Paul DeArmas (Baruch hereafter unless context requires otherwise) petition this court for a writ of mandate and/or prohibition or other appropriate relief challenging an order of the Los Angeles County Superior Court, Warren L. Ettinger, judge presiding, granting the...
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Opinion Before serving a professional negligence complaint against a licensed engineer, the plaintiffs attorney must file a certificate of merit declaring that “there is reasonable and meritorious cause” for filing the action. The declaration must be based on the attorney’s consultation with a licensed engineer who is not a party, whom the attorney “reasonably believes is knowledgeable in...
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Opinion Isiah S. appeals from the order granting Fredrick W. de facto parent status in the dependency proceedings filed on behalf of Isiah’s daughter, Leticia S. Isiah contends the court abused its discretion by granting Fredrick de facto parent status because Fredrick’s conduct was the reason the court found Leticia to be a dependent child. We reverse. Factual and Procedural Background Leticia w...
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Opinion In this class action lawsuit alleging contractual breach and unfair business practices, General Motors Acceptance Corporation (GMAC) appeals from the part of the judgment finding a breach of contract and from the trial court’s orders denying its motions to vacate the judgment and for judgment notwithstanding the verdict (case No. C032862); GMAC also appeals from an order awarding ...
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Opinion Petitioner, Continental Casualty Company (Continental), seeks a writ of mandate compelling the trial court to vacate its order determining that Continental owed a duty to defend a particular lawsuit filed against its insureds, the real parties in interest, Paragon Homes, Inc., and related individuals and entities. 1 Continental also seeks an order requiring the trial co...
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Opinion Plaintiff and appellant John Sanabria appeals from the order awarding costs and attorney fees in favor of defendants and respondents Robert and Gloria Embrey. Sanabria contends the Embreys failed to timely file their memorandum of costs and motion for attorney fees following the voluntary dismissal of his complaint. We agree and reverse. Facts and Procedural Background O...
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Opinion Plaintiff Paykar Construction, Inc. (Paykar), a subcontractor, sued defendant Spilat Construction Corporation (Spilat), the general contractor, for breach of contract and a common count for book account. The jury found that Spilat owed Paykar $259,813. The court entered judgment for Paykar in that amount and denied Spilat’s motion for judgment notwithstanding the verdict. Spilat a...
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Opinion Plaintiff appeals from summary judgment entered against him in this wrongful termination action. The summary judgment was granted based upon final determinations in an earlier administrative action. We find no triable issue of material fact and affirm the judgment. Factual and Procedural Summary Edward Castillo, Jr., worked for the Bureau of Engineering in the Department...
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*472 Opinion International Fidelity Insurance Company (IFIC), surety on a bail bond, appeals from an order denying its motion to set aside a May 7, 1999, summary judgment and exonerate bail. 1 The principal issue on appeal is whether the May 7, 1999, summary judgment was void for premature entry because a previous February 16, 1999, order properly tolled the 185-day pe...
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Opinion After an unsatisfactory divorce—almost, but not quite, a redundancy—Phillip Laborde sued his wife’s former attorney, Evan L. Ginsburg, and Susan Aronson, the psychologist retained to conduct a custody evaluation in his marital dissolution proceeding. The complaint alleges breach of contract, malpractice, defamation, conspiracy to defame, invasion of privacy, conversion, interferen...
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Opinion Defendant and appellant, Balwant Singh, was convicted of a violation of Vehicle Code, section 22349, exceeding the maximum speed limit, and now appeals. In this appeal it is conceded that there was a posted, prima facie limit, that radar established defendant was traveling in excess of 65 miles per hour; and that the officer cited appellant for exceeding the maximum speed law, but did not ...
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Opinion After defendant waived his right to a jury trial, the trial court found him guilty of possessing a deadly weapon, to wit, metal knuckles (Pen. Code, § 12020, subd. (a)(1)).1 As a result, defendant was sentenced to the midterm of two years in state prison. On appeal, defendant contends his conviction should be reversed because the trial court erroneously applied a strict liability standard...
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Opinion COFFEE, J. Plaintiffs and appellants George and Carol Goebel own real property that has been condemned due to landslide conditions which began in February of 1998 during the El Niño rainstorms. The Goebels sued defendant and respondent City of Santa Barbara (the City) on the theory that a break in one of its water mains damaged their property and caused the landslide that led ...
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Opinion This case involves a dispute over attorney fees in an inverse condemnation action. Defendant City of West Sacramento (the City) appeals from an order awarding $54,017.33 in attorney fees to plaintiff Josie Andre as trustee of the Josephine De Anda Trust. The City contends there was no evidence that fees in this amount were “actually incurred,” as required by *534Code of Civil Procedure sec...
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*628 Opinion This appeal challenges a trial court’s $25,992 sanctions award under Code of Civil Procedure section 128.5 1 against Gerald H. Blum (Blum) and his attorney, Gibson, Dunn & Crutcher LLP (Gibson) (collectively appellants), in favor of Joseph W. Levy (Levy), Bret Levy, Felicia Weston, and Jody Schlesinger (the Levy children) (collectively respondents). A...
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Opinion Applying the provocative act murder doctrine, a jury convicted appellant Khyle Armando Briscoe of first degree murder, first degree robbery, and first degree burglary. It also found true a special circumstances allegation on the murder charge and firearm use allegations associated with all three offenses. (See Pen. Code, 1 §§ 187, subd. (a), 190.2, subd. (a)(17), 211, 4...
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*615 Opinion We find that a conviction under Penal Code section 245, subdivision (a)(1) for an assault with intent to create great bodily injury is not a serious felony within the meaning of Penal Code section 1192.7, subdivision (c)(31), when it is not an “assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or...
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Opinion Appellants Rita and Virgil Palub bought a Hartford all risk homeowners policy that included property and liability insurance. In 1998, their home was badly damaged. To quote their complaint, their home “was destroyed, rendered uninhabitable, and collapsed as a result of a slope failure above and behind their property.” Appellants sought coverage, alleging that their property damag...
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Opinion Defendant Gary Brian Evans was sentenced to an aggregate term of seven years in prison in three cases stemming from acts of domestic *666 violence against his wife. On appeal, defendant contends the admission of other incidents of domestic violence under Evidence Code section 1109 violated his state and federal due process rights to a fair trial. He also contends the trial court erred...
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Opinion Jaime Bandal Mabini appeals from the judgment entered following his conviction by jury on two counts of committing a lewd act upon a child. (Pen. Code, § 288, subd. (a).)1 He was sentenced to prison for eight years. The counts involved different victims: Sheila R. and Kayla C. Appellant challenges his conviction only on the count involving Sheila R. The generally applicable six-year statu...
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Opinion The County of San Bernardino (County) appeals from an order expunging its lien for medical services rendered to Alberto Mares, deceased. It claims that its lien under Government Code section 23004.1 (hereinafter section 23004.1) applies to any settlement that plaintiffs obtained from defendants in this action. We disagree and affirm. Facts and Procedural History On Octob...
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Opinion The trial judge dismissed this action after sustaining a demurrer to the first amended complaint without leave to amend. William and Leslie Turner (the Turners) appeal from the judgment, contending the trial court erred in determining a third party libel and slander action did not trigger a potential for coverage or a duty to defend under a rental dwelling insurance policy. We dis...
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Opinion A doctor’s obligation to obtain a patient’s informed consent to medical treatment includes “a duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 243 [104 Cal.Rptr. 505, 502 P.2d 1].) We hold that, as a matter of law, a tre...
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*714 Opinion I. Introduction Plaintiffs sued their employer for injuries they sustained from exposure to a hazardous chemical substance the employer gave them to clean a film processing lab. The trial court found that the exclusive remedy provision of the Workers’ Compensation Act (WCA) barred plaintiffs’ independent civil action, and granted judgment notwithstanding the ver...
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Opinion The appellate department of the Riverside Superior Court affirmed a trial court holding that knowledge is not an element of the crime defined in Penal Code section 466.5, possession of a master key with the intent to commit an unlawful act. 1 The appellate department then granted defendant’s request that the case be certified to this court pursuant to Code of...
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Opinion On December 13, 1989, the first of several informations was filed in Fresno County Superior Court against appellant Carl Franklin Harrison. On November 2, 1994, a jury convicted him as follows: *783 — Count one: Penal Code 1 section 286, subdivision (c) (forcible sodomy with child under age 14 and more than 10 years younger than Harrison; victim Tony R.). ...
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*813Opinion Petitioner Ventura Unified School District (District) filed this petition requesting issuance of a writ of mandate directing the respondent court to vacate its order denying a motion for change of venue and to enter in its place an order transferring the case to Ventura County for trial. (Code Civ. Proc., § 394.)1 Following our review of the petition and the relevant law, we reached th...
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*794 Opinion In this case we consider the application of Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2, 834 P.2d 696] (Knight), to the recreational activity of boating. A minor child and her siblings brought a negligence claim against the owner and operator of a ski boat for damages arising out of her fall from the ski boat and the subsequent near amputation of her arm by the ...
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*805Opinion In Ziello v. Superior Court (1995) 36 Cal.App.4th 321 [42 Cal.Rptr.2d 251] and Foothill Village Homeowners Assn. v. Bishop (1999) 68 Cal.App.4th 1364 [81 Cal.Rptr.2d 195], this court held that property owners rather than lenders must be allowed to control earthquake insurance proceeds where the pertinent deeds of trust did not require earthquake insurance as a condition for the loans,...
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Opinion Plaintiff Rachelle Stull (Stull) appeals from a postjudgment order denying her motion for costs and fees under Code of Civil Procedure 1 section 2033, subdivision (o). 2 She claims that the trial court erred in determining that the defendants’ admission of liability on the eve of trial precluded the order she sought. We disagree and affirm. Facts and Pro...
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*872 Opinion Petitioner County of San Luis Obispo (County) seeks review of an order of the Workers’ Compensation Appeals Board (WCAB) awarding respondent Russell Barnes a 10 percent penalty under Labor Code section 5814 1 on all medical benefits, past, present and future, for a single instance of delay in paying a previously assessed penalty of $97.87. The County has been paying medical ben...
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Opinion On August 31, 1999, a jury found appellant Michael Eddie Towey guilty of felony transportation of methamphetamine and the misdemeanors of possession of marijuana, being under the influence of a controlled substance, and giving false identification to a police officer. The trial court found as true enhancement allegations of a prior serious or violent felony conviction for attempted robbery...
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Opinion Plaintiff, Community Assisting Recovery, Inc., a nonprofit corporation, filed this action on March 6, 1998, against 194 insurance companies which do business in the State of California. The second amended complaint is the operative pleading and alleges that plaintiff was formed to provide “consumer information and education for the full and proper restoration of earthquake-damaged...
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Opinion In a session with his psychotherapist, a patient makes threatening statements about his ex-girlfriend. Penal Code section 4221 makes it a crime to threaten another with great bodily injury or death even when that threat is made to a third party with the intent that it be conveyed to the victim. Here we conclude, among other things, that the patient’s statements do not constitute a violatio...
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Opinion I. Introduction In 1994, Charles T. Black 1 and Corinne E. Black (the Blacks), then 68 and 67 years of age respectively, entered into a reverse mortgage with Freedom Investment Fund, Inc. (Freedom Investment), using their home as the basis for the mortgage. In 1998, the Blacks, as trustees for the Charles T. Black and Corinne E. Black Trust Agreement, brought this ...
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Opinion Joseph Debro appeals from a judgment following the sustaining of respondent’s demurrer to his second amended complaint without leave to amend. Debro contends the trial court erred because one of his causes of action, based on the California False Claims Act (Gov. Code, §§ 12650-12655), was not time-barred. We disagree and affirm the judgment. I. Facts and Procedural History On August 7, 1...
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*959 Opinion Plaintiff Michael J. Mack appeals from the order dismissing his complaint against the State Bar of California after the court granted the State Bar’s motion for judgment on the pleadings. For the reasons set forth below, we affirm the order. Facts and Procedural History Plaintiff and appellant Michael J. Mack (Mack) is an attorney licensed to practice law i...
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Opinion Can staring at a fellow employee—“to gaze fixedly . . . with eyes wide open,” is how the Oxford English Dictionary defines the word— *997 constitute actionable sexual harassment under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) (FEHA)? We hold that under the circumstances disclosed by the record in this case, such conduct may indeed violate FEHA’s pro...
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Opinion This is a libel action in which the defendants (a corporation and its president) claim the plaintiff (an individual) ought to *989 be compelled to arbitrate simply because he is president of another corporation that had a licensing agreement with the defendant corporation. The essence of the defendants’ position is that the plaintiff, who happens to have signed the li...
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Opinion With the court’s approval, a father agreed to pay child support over and above the Statewide Uniform Child Support Guideline amount. (Fam. Code, § 4050 et seq.) 1 About a year later, the father asked the trial court to modify his child support obligation downward simply because he had agreed to pay more than the guideline amount. His request was granted. The mother appe...
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*970 Opinion This case illustrates the danger of using preprinted wills. Decedent Haskell J. Dye had two natural sons who were adopted away (with his consent) by his first wife’s new husband (Arthur Battles) in 1959. Under the law at that time, this cut off their right to inherit from him. The law was changed, effective 1985, to permit some adopted-out children to inherit from th...
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Opinion Plaintiff David Cuenllas appeals from an order quashing service of summons in favor of defendant VRL International, Ltd. (respondent). In the published portion of this opinion, part I, we address our jurisdiction to hear the appeal. We conclude that service of a minute order which notes the date of entry in the order but which is not entitled “notice of entry” does...
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Opinion Petitioner Michael P., a party to a juvenile dependency action, served subpoenas duces tecum on real parties in interest *1040 Orange County Sheriff’s Department and the Westminster Police Department prior to the jurisdictional hearing. Petitioner sought to discover forensic evidence and various investigative reports compiled by real parties during their ongoing crimi...
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Opinion I. Introduction Defendant, Los Angeles Times Communications, a news-gathering organization, appeals from an order denying a special motion to strike the complaint of plaintiff, American Humane Association, pursuant to Code of Civil Procedure 1 section 425.16, the anti-strategic lawsuit against public participation statute. In the published portion of this opinion, ...
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Opinion Introduction Mother, Susan S., appeals from the order terminating her parental rights over Vincent S. (Welf. & Inst. Code,1 § 366.26.) We hold that the court committed procedural error because California Rules of Court, rule 1463(a) prohibits the juvenile court from terminating the rights of one parent at a time. However, because the parental rights of father, Charles C., were terminated ...
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Opinion California’s anti-SLAPP statute (Code Civ. Proc., § 425.16; all further unspecified statutory references are to this code) allows dismissal, at an early stage, of a lawsuit designed primarily to chill the *1070 exercise of First Amendment rights. 1 It permits a special motion to strike any cause of action designed to deter acts in furtherance of a person’s ...
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*1107Opinion The trial court set bail at 10 times the amount specified in the bail schedule but failed to state specific grounds for its decision. The role of this court in reviewing a bail setting is to determine whether the trial court abused its discretion. (Ex parte Duncan (1879) 53 Cal. 410, 411; Ex parte Hoge (1874) 48 Cal. 3, 5; People v. Norman (1967) 252 Cal.App.2d 381, 398 [60 Cal.Rptr....
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Opinion This is an action by a citizens group challenging a decision on how to use park lands. Save Mile Square Park Committee (SMSPC), a nonprofit corporation, argues the trial court improperly granted summary judgment in favor of the County of Orange and its Board of Supervisors, Cynthia P. Coad, James W. Silva, Charles V. Smith, Todd Spitzer and Thomas W. Wilson.1 We disagree, and affirm. Mile ...
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Opinion Thai Bao Tran petitioned for a writ of mandate to compel the superior court to grant his request for ancillary funding for his capital *1152 murder case. We originally denied the petition summarily. Tran petitioned the Supreme Court for review, which that court granted. The Supreme Court ordered us to consider the petition on its merits, and we have complied. Tran contends the trial...
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Opinion Telles Transport, Inc. (Telles) petitions this court by a writ of review challenging the decision of the Workers’ Compensation Appeals Board (WCAB or Board). On reconsideration, the WCAB remanded the matter to the workers’ compensation administrative law judge (WCJ) to admit medical evidence that respondent Luis Zuniga purposely excluded from the record. We find Zuniga’s trial tactics c...
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Opinion A woman shot and injured a man. As a result of the shooting, the woman entered a nolo contendere plea to a felony (assault with a firearm), and she also suffered a civil judgment against her and in favor of the man. The woman is bankrupt but she had homeowner’s insurance at the time of the shooting, and the man wants to collect his judgment from her insurer. The policy excludes coverage f...
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Opinion Panyiotis and Andriana Katelaris appeal from summary judgment in favor of the County of Orange, arguing declarations offered in support of the motion were inadmissible. We hold the declarations were properly received, so the judgment is affirmed. The Katelarises own land along Santiago Canyon Road in an unincorporated area of Orange County.1 They believe improvements to the county’s roadsi...
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Opinion This appeal involves a legal issue of first impression and continuing public interest in California. Respondent, driving erratically at a slow speed southbound on U.S. Highway 101 at 1:20 a.m. on June 17, 2000, was stopped by California Highway Patrol officers. Requested to walk to the officers’ vehicle, respondent displayed difficulty in maintaining his balance. His movements were deliber...
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Opinion Introduction Defendants The Beverly Highlands Homes Association, Dmitri Villard, 1 Walter DeCaen, Lee Bronson and Margie Oswald appeal from a summary judgment in favor of plaintiffs The Committee to Save the Beverly Highlands Homes Association, Sidney Smilove and Arlene Cohen. We reverse the summary judgment. Statement of Facts Defendant The Beverly Highl...
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Opinion Introduction The trial court, feeling compelled by the Indian Child Welfare Act, ordered the minor in this dependency case removed from the home of the only parents the minor knows, and transferred to a home on a Chippewa Indian reservation in Minnesota. We apply the “existing Indian family doctrine” to reverse the trial court’s placement order. *1279Summary In a hearing under Welfare and...
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Opinion The Braille Institute of America, Inc., American Heart Association, Cancer Research Fund of the Damon Runyon-Walter Winchell *1326 Foundation, Hi-Desert Memorial Hospital, and Salvation Army, beneficiaries under a testamentary trust, have appealed from two adverse orders issued in favor of Union Bank of California (Union Bank), the trustee under a testamentary trust created by a will....
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*1236 Opinion This case arises from a dog attack resulting in tragic injuries to 11-year-old Cody F. The attack occurred on a private road within a subdivision and was witnessed by Cody’s mother and sister. The respondents, property owners and association members in the Rancho Tehama Subdivision Association (RTA), owned access easements over the road. Respondents obtained favorab...
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Opinion The trial court found defendant and appellant Anthony Jesus Villegas guilty of attempted first degree murder (count I),1 mayhem (willfully, unlawfully and maliciously disabling and rendering useless the legs of Richard Mercado) (count II),2 and assault with a firearm (count III).3 The court also found true the following enhancement allegations: (1) with regard to counts I and II, defendant...
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Opinion Plaintiff Nattie Thunderburk appeals summary judgment entered against her and in favor of defendant United Food & Commercial Workers’ Union, Local 324 (Local 324). Plaintiff was formerly employed by Local 324 as a secretary. After Local 324 terminated her employment, she sued Local 324 for wrongful termination. Local 324 filed a motion for summary judgment, which the trial court g...
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Opinion Ryan N., a juvenile at the time of the incidents at issue in this criminal case, appeals from juvenile court findings and orders sustaining a petition under Welfare and Institutions Code section 602 alleging he had willfully and deliberately aided, advised or encouraged a suicide in violation of Penal Code section 401. 1 He contends (1) there is insufficient evidence to...
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Opinion Defendant William Joseph Garrett pled guilty to a residential burglary, a second degree burglary, and a vehicle theft all occurring in 1998, and the trial court found true five “Three Strikes” priors. The court sentenced defendant to 25 years to life in state prison on May 12, 2000, after the March 7, 2000 passage of Proposition 21 amended the definition of serious felony burglary, Penal C...
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112 Cal.Rptr.2d 677 (2001) 93 Cal.App.4th 37 TRADERS SPORTS, INC. et al., Plaintiffs and Appellants, v. CITY OF SAN LEANDRO, Defendant and Respondent. No. A092448. Court of Appeal, First District, Division Two. October 24, 2001. Review Denied January 16, 2002. *679 James Leonard Crew, San Ramon, Jack Leavitt, Counsel for Appellants. Meyers, Nave, Riback, Silver & Wilson, Andrea J. Saltzman, B...
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Opinion Roman Ramos Cruz appeals from conviction for forcible rape, forcible sodomy, and forcible penetration with a foreign object. He claims that the misadministration of the jury oath rendered the verdict reversible per se. In the published portion of this opinion, we find no reversible error with respect to this issue. He also claims that the trial court erred in failing to instruct the jury s...
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*96 Opinion Introduction Real party in interest, plaintiff Peggy Smith (plaintiff), was a woman over the age of 70. A stroke left her incompetent. After the stroke, she became an inpatient at petitioner and defendant Alcott Rehabilitation Hospital (Alcott). Approximately 10 months after the stroke, both of plaintiffs legs were amputated as a result of Alcott’s failure to pro...
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112 Cal.Rptr.2d 797 (2001) 93 Cal.App.4th 62 The PEOPLE, Plaintiff and Respondent, v. John Richard BARRO, Defendant and Appellant. No. B144905. Court of Appeal, Second District, Division Four. October 24, 2001. Rehearing Denied November 16, 2001. *798 Law Offices of Perliss & Gross, Sanford H. Perliss and Thomas D. Shambaugh, Los Angeles, for Defendant and Appellant. Bill Lockyer, Attorney Ge...
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Opinion Introduction This is an action by a creditor to set aside, as a fraud upon her, a conveyance of the debtor’s home to his stepsons. After plaintiff presented her evidence at trial, the court, pursuant to Code of Civil Procedure section 631.8, granted judgment in favor of the defendants, because plaintiff failed to prove that the value of the property exceeded encumbrances and ...
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Opinion Assessment bonds provide a means for private property owners to borrow, and to pay over time for, the costs of public infrastructure benefiting their property. In tandem with assessment bonds, reserve bonds are issued as a means of providing bondholders with a degree of assurance that debt service due on the assessment bonds will be paid in the event of credit difficulties. Plaintiff ...
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Opinion The underwriter of an initial public offering of a now-defunct corporation brought this action for damages against the corporation’s accounting firm, alleging the firm prepared false and misleading financial and audit reports knowing and intending the underwriter would rely on these reports in agreeing to underwrite the offering. The trial court applied a “Bily club” ...
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112 Cal.Rptr.2d 669 (2001) 93 Cal.App.4th 51 Alexander REESE, Plaintiff and Appellant, v. Hung Kim WONG et al., Defendant and Respondents. No. A093684. Court of Appeal, First District, Division One. October 24, 2001. Review Denied January 3, 2002. *670 Thomas J. LaLanne, San Francisco, for Appellant. John F. Hughes, Dennis J. Leader, Gordon & Rees, LLP, San Francisco, for Respondents. SWAGER,...
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Opinion A jury convicted defendant of second degree robbery (Pen. Code, §211; undesignated section references are to this code) and false imprisonment by violence (§ 236) and found that he was armed with a *17firearm during the commission of the offenses (§ 12022, subd. (a)(1)). In bifurcated proceedings, the court found that defendant had a prior felony conviction within the meaning of the “Three...
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Opinion In what appears to be a case of first impression in California, we are called upon to address the question whether the plaintiff, in *175 serving the 90-day notice of intent to commence an action against a medical practitioner (Code Civ. Proc., § 364), 1 must allege the specific factual basis of each cause of action in the lawsuit to be filed. We hold: (1) the 90-day notice requirem...
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Opinion Stacy Gordon appeals from a judgment entered in favor of Havasu Palms, Inc. (Havasu), after the trial court granted Havasu’s motion for summary judgment. Gordon argues the trial court erroneously granted summary judgment because there was a triable issue of material fact regarding (1) whether the assumption of risk defense was applicable because Havasu failed to properly design and maintai...
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*167Opinion Here we conclude that the movement of a victim nine feet is sufficient to support a conviction for kidnapping to commit rape. Reno Keith Shadden appeals a judgment after conviction of kidnapping to commit rape (Pen. Code, § 209, subd. (b)(1)),1 assault with intent to commit rape (§ 220), false imprisonment (§ 236), burglary (§ 459), and second degree robbery (§ 211). The court sentence...
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Opinion 1. Introduction A jury found that defendant Patrick Villa, a San Bernardino County deputy sheriff, committed battery on plaintiff Mark McFadden, for which the jury awarded McFadden $25,000. The jury also found Villa did not violate plaintiff’s civil rights under title 42, United States Code, section 1983, by use of excessive force or otherwise.1 After plaintiff’s motion for new trial or f...
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Opinion These consolidated proceedings involve the question whether a health care service plan may enforce an arbitration clause contained in the plan and in related subscriber agreements which does not comply with the statutory disclosure requirements applicable to such clauses. In case No. B145004, the petitioner, George Rivera, seeks a writ of mandate vacating a trial court order grant...
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Opinion Vehicle Code section 17004.7 (hereafter section 17004.7) provides that, when a law enforcement agency adopts a written policy on vehicular pursuits which complies with statutory requirements, the agency is immune from liability for civil damages “resulting from the collision of a vehicle being operated by an actual or suspected violator of the law who is being, has been, or believ...
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Opinion Defendant Danny George Raviart was convicted by a jury of two counts of robbery, one count of being a convicted felon in possession of a firearm, one count of possession of methamphetamine, and two counts of assault with a firearm on a peace officer. On appeal, defendant contends there was insufficient evidence to support one of his assault convictions and the jury was improperly ...
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Opinion A person violates Penal Code section 245, subdivision (a)(1) (hereafter section 245(a)(1)) by “commit[ting] an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury . . . .” (All statutory references are to the Penal Code unless otherwise specified.) The issue presented in this case is wheth...
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Opinion If, prior to any litigation, an insurer pays the policy limits on a potential claim against its insured in return for a complete release of all claims, does Code of Civil Procedure1 section 877.6 bar its later bid for equitable indemnity against other tortfeasors who enter into good faith settlements with the injured party after litigation commences against them? We conclude it does and h...
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Opinion Sometime in the late 1980’s, Robert W. Carrau purchased over 50 windows from Marvin Lumber and Cedar Company (Marvin), a window manufacturer, which were incorporated into a residence Carrau built for himself and his wife in Orinda, California. The windows proved to be defective, and, on October 17, 1997, Carrau filed suit against Marvin, seeking damages on the theories, as relevan...
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Opinion A jury awarded $99,064 to plaintiff Karen Nishihama for injuries sustained when she tripped and fell in a crosswalk maintained by the City and County of San Francisco (City). The City appeals from a judgment entered on the jury’s verdict, and from denials by operation of law of the City’s motions for judgment notwithstanding the verdict and for a new trial. We reject the City’s cl...
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Opinion The trial court sustained a demurrer to plaintiff’s complaint against the County of Contra Costa (the County) on the ground that the action was time-barred by Government Code section 946.6.1 In opposition to the demurrer, plaintiff claimed he substantially complied with section 946.6 and argued that the County was estopped from disputing timeliness of the action. Although the complaint was...
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Opinion Plaintiff Bill Chavez appeals a judgment dismissing his complaint against defendants Whirlpool Corporation (Whirlpool) and Howard’s after the court sustained a demurrer without leave to amend. He alleges that Whirlpool has required Howard’s and other retailers to maintain minimum resale prices for its products and contends the practice constitutes *367an unlawful combination under the Car...
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Opinion In this juvenile dependency proceeding, we conclude the sustained allegations of the petition are insufficient to establish juvenile court jurisdiction. Accordingly, we reverse the court’s jurisdiction and disposition orders and remand the matter to the juvenile court. Facts and Proceedings Below Appellant Tricia T. is the mother of six children. Two of mother’s children are adults and liv...
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Opinion A jury convicted defendant of the following charges: count two, assault with a firearm on Darryl Lavan (Pen. Code, § 245, subd. (a)(2); further references to sections of an undesignated code are to the Penal Code); count three, attempted robbery of Shunn Oliver (§§ 664, 211); count four, assault with a firearm on Oliver (§ 245, subd. (a)(2)); and count seven, being a convicted felon in pos...
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Opinion Jesse W. (father), a parent of three children made dependents of the juvenile court in proceedings initiated in December of 1998, appeals from a final-stage order of January 4, 2001, denying his motion for modification (Welf. & Inst. Code, § 388; all unspecified section references are to this code), appointing his parents guardians of the children, and vacating the dependencies. He claims...
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Opinion I. Introduction In this child support modification case, the mother, a successful insurance agent, tried to upwardly modify a child support order against her ex-husband, a recently unemployed stockbroker who had just lost his license and started an unrelated business, without first obtaining his most current tax returns. Rather, she merely presented “lifestyle” evidence based on a series ...
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Opinion In brief, petitioner Wallace Reed Phelps seeks relief from a conviction of violating provisions of the Home Equity Sales Contract Act. (Civ. Code, § 1695 et seq.) 1 He argues that his conduct did not violate any law and that, accordingly, trial counsel rendered constitutionally defective assistance in permitting him to enter a guilty plea. 2 We agree. Th...
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*396Opinion Under the “Three Strikes” law, a defendant is subject to increased punishment for his current offense if he has previously been convicted of specified offenses. (Pen. Code, §§ 667. subds. (b) -(i), 1170.12.)1 Defendant, William Leo Fox, appeals claiming his Oregon conviction for second degree rape, which is defined as sexual intercourse with a minor under the age of 14, does not consti...
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113 Cal.Rptr.2d 195 (2001) 93 Cal.App.4th 422 Brent Howard WOOTEN et al., Petitioners, v. The SUPERIOR COURT of San Bernardino County, Respondent; The People, Real Party in Interest. No. E028089. Court of Appeal, Fourth District, Division Two. October 30, 2001. Review Denied January 29, 2002. *196 Roger Jon Diamond, Santa Monica, for Petitioners. No appearance, for Respondent. Dennis L. Stout, Di...
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Opinion Stanley Wirick appeals from a summary judgment in favor of the State Board of Equalization (the Board) in the amount of $431,894.20 in sales tax, interest, and penalties. Wirick contends the provisions of Revenue and Taxation Code section 6829 (all further section references are to this code unless otherwise specified), imposing personal liability on corporate officers upon termination ...
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113 Cal.Rptr.2d 294 (2001) 93 Cal.App.4th 544 CONSERVATORSHIP OF the Person and Estate of Joel M. LEVITT. Frumeh Labow, as Conservator, etc., Petitioner, v. Marc B. Hankin, Claimant and Appellant. Conservatorship of the Person and Estate of Peggy Page. Frumeh Labow, as Conservator, etc., Petitioner, v. Marc B. Hankin, Claimant and Appellant; Kathryn Stanley, as Executor, etc., Claimant and Respon...
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Opinion Petitioner Janet DeLong (DeLong) seeks a writ of habeas corpus directing respondent superior court to sentence her to probation with no incarceration pursuant to Proposition 36, the drug probation initiative. (Pen. Code, § 1210 et seq.) 1 The essential issue presented is the applicability of Proposition 36 to a defendant such as DeLong who was adjudged guilty prior to...
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113 Cal.Rptr.2d 284 (2002) 93 Cal.App.4th 525 ANCHOR MARINE REPAIR CO., Plaintiff and Appellant, v. Jeff MAGNAN, Defendant and Respondent. No. G028751. Court of Appeal, Fourth District, Division Three. October 31, 2001. Review Denied January 16, 2002. *285 William J. Kopeny & Associates, William J. Kopeny, Irving; and Sterling Scott Winchell, Santa Ana, for Plaintiff and Appellant. Aires Rayn...
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113 Cal.Rptr.2d 271 (2001) 93 Cal.App.4th 518 The PEOPLE, Plaintiff and Respondent, v. Jose RUGAMAS, Defendant and Appellant. No. C035576. Court of Appeal, Third District. October 31, 2001. Roeser & Roeser and Michael J. Roeser, Zephyr Cove, NV, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistan...
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Opinion James D. Devine, a cotrustee of the Mary S. Sigourney Award Trust, a charitable trust, petitioned the trial court for instructions concerning the appointment of a successor trustee. The American Psychoanalytic Association (APA), Stephen K. Firestein, and Newell Fischer replied and opposed the petition on the basis that' the underlying orders that had amended Mary Sigourney’s testamentary ...
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Opinion Defendant appeals his carjacking and robbery convictions. He raises three issues, but we need only discuss one, since that one requires reversal. The trial court substituted in an alternate juror to replace a juror who was ill, but failed to give the newly constituted jury the mandatory instruction that it disregard its previous deliberations and begin deliberations anew. That is ...
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Opinion The dictionary definitions of “decay” include a general sense of gradual deterioration in strength or soundness, and a more specific sense of rot or organic decomposition, This case presents the question whether a property insurance policy covering collapse of a building due to “hidden decay” applies to the unexpected failure of wooden roof trusses, with no evidence of rot. We co...
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Opinion In Arden Carmichael, Inc. v. County of Sacramento,1 this court held that a fee imposed on nonprofit organizations by the County of Sacramento (the County) based upon a percentage of their gross receipts earned from bingo games violated article XIII, section 26, subdivision (d) of the state Constitution (hereinafter sometimes referred to as subdivision (d)). Subdivision (d) provides that a...
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113 Cal.Rptr.2d 328 (2001) 93 Cal.App.4th 633 UNITED SERVICES AUTOMOBILE ASSOCIATION, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; John Moore et al., Real Parties in Interest. No. B150551. Court of Appeal, Second District, Division Four. November 1, 2001. Review Denied February 27, 2002. *329 Robie & Matthai, James R. Robie, Pamela E. Dunn, Natalie A. Kouyoumdjian, Los Ang...
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113 Cal.Rptr.2d 357 (2001) 93 Cal.App.4th 691 David MELLINGER et al., Plaintiffs and Appellants, v. TICOR TITLE INSURANCE COMPANY OF CALIFORNIA, Defendant and Respondent. No. A092663. Court of Appeal, First District, Division Four. November 2, 2001. Rehearing Denied November 28, 2001. Review Denied February 13, 2002. *358 Law Offices of Robert J. Kahn, Robert J. Kahn, San Ramon, for Appellants. M...
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Opinion Diana C. Blake (plaintiff) worked for Gordon Ecker Productions, Inc. After allegedly suffering sexual harassment, she left and sued *733 the company and various individuals with whom she had worked (defendants), all of whom she claimed were responsible for such harassment. 1 Defendants moved to compel arbitration, their motion was granted, and plaintiff’s c...
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Opinion Plaintiffs David and Erma Wright appeal from the judgment in favor of the City of Los Angeles, acting by and through the Los Angeles Department of Water and Power (City), entered after its demurrer was sustained without leave to amend by the trial court. 1 Procedural Background and Facts “Because this is an appeal of a judgment of dismissal entered after the sust...
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Opinion Defendant Stephen Richard Bianco was granted probation subject to certain conditions. On appeal, defendant claims a probation condition prohibiting him from using or possessing marijuana impinges on his right to the medical use of marijuana under state law. (Health & Saf. Code, § 11362.5.)1 We conclude that the trial court acted within its traditional discretion in imposing the probation ...
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Opinion Defendant homeowners association appeals from a trial court order granting plaintiffs’ request for attorney fees pursuant to Civil Code section 1717. 1 The case presents for decision the interesting question of whether section 1717, subdivision (b)(2) precludes any award of attorney fees to the prevailing party when the parties sign a settlement agreement which provid...
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Opinion Juvenile offender challenges two conditions of probation. Conceding that he made no objection to them in the juvenile court, he contends that the issue is not waived, invoking our opinion in In re Tanya B. (1996) 43 Cal.App.4th 1 [50 Cal.Rptr.2d 576]. We reexamine and overrule Tanya B., but nevertheless conclude that there has been no waiver under the circumstances of this case. Background...
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113 Cal.Rptr.2d 453 (2001) 93 Cal.App.4th 817 Mark POLLOCK, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Northwestern Mutual Life Insurance Company, Real Party in Interest. No. B150627. Court of Appeal, Second District, Division One. November 6, 2001. *454 Cheong, Denove, Rowell, Antablin & Bennett, Wilkie Cheong and Mary L. Wachsmith, Glendale, for Petitioner. Cotkin,...
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113 Cal.Rptr.2d 437 (2001) 93 Cal.App.4th 757 The PEOPLE, Plaintiff and Respondent, v. Moises ACEVEDO, Defendant and Appellant. No. F034485. Court of Appeal, Fifth District. November 6, 2001. *438 Marilyn Drath, San Rafael, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson,...
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Opinion In this case we hold the juvenile court erred in refusing to hear live witness testimony at the hearing on appellant’s petition for modification pursuant to Welfare and Institutions Code section 388,1 where the declaration testimony was in conflict and the declarants’ credibility was at issue. *1402Facts and Proceedings Below Appellant Ajah B. (mother) gave birth to Clifton V. in January ...
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*1259Opinion Introduction Appellant Jason Viramontes challenges his murder and attempted murder convictions on the ground the trial court erred in refusing to instruct on imperfect self-defense. We conclude the evidence supported an instruction on imperfect self-defense and the trial court erred in failing to so instruct. Given the state of the evidence at trial, the error was not harmless. Backgr...
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*849Opinion Plaintiffs Donald J. and Helen Flores, husband and wife, are senior citizens who obtained a reverse mortgage on their home from defendant Transamerica HomeFirst, Inc. (HomeFirst). After plaintiffs filed suit against HomeFirst for unfair business practices and other tortious conduct, HomeFirst petitioned to compel arbitration pursuant to arbitration clauses contained in the loan agreem...
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Opinion Penal Code section 2933.1 imposes a 15 percent limitation on worktime custody credits for prisoners convicted of violent felonies “listed in Section 667.5.”1 Here, we decide that section 2933.1 incorporates subsequent amendments to section 667.5, not only the version in effect when section 2933.1 was enacted. Leodes Van Burén was convicted of second degree robbery. (§211.) He admitted a pr...
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Opinion Susan Jurcoane sought review of an order denying her marital privilege claim (Evid. Code, §§ 970-973) 1 and requiring her to testify at a preliminary hearing to be conducted to determine whether her husband, Josif Jurcoane, committed two 1984 murders. We stayed Susan’s participation in any preliminary hearing and issued an order to show cause. The issue is whether Susan may claim th...
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Opinion I. Introduction Defendant American Equity Insurance Company (American Equity) appeals from a judgment of the Alameda County Superior Court following the *1146 grant of summary judgment in favor of plaintiff Travelers Casualty and Surety Company (Travelers) on Travelers’ complaint for indemnity and contribution against American Equity. The trial court concluded th...
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Opinion I. Introduction This matter arises out of a petition for writ of mandate filed by respondent Robert E. Morris, M.D., a board-certified physician in pediatrics and adolescent medicine, against appellant Jerry L. Harper, then Acting Director of the California Youth Authority (CYA). Morris’s petition sought mandamus relief to require Harper to comply with state law by obtai...
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Opinion Summary This case presents the question whether an insurer, Golden Eagle Insurance Corporation, had a duty to defend its insureds, Rocky Cola Café, Inc., and several of its employees, in a lawsuit brought by Krista Boilman, a waitress formerly employed by Rocky Cola Café. Boilman’s suit included claims for sexual harassment and defamation, among other causes of action. The in...
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Opinion This is an appeal from a judgment for defendant in an action alleging violations of the Ralph M. Brown Act, Government Code section 54950 et seq. (hereafter the Brown Act). 1 The trial court concluded the first amended complaint failed to state a cause of action and granted defendant’s motion for summary judgment. Of particular concern to us is statutory language permitting a public a...
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Opinion Among the crimes of violence, illicit drugs, and illegal possession of weapons of which defendant James Patrick Taylor was convicted is the possession of a cane sword. (Pen. Code, § 12020, subd. (a); further section references are to the Penal Code unless otherwise specified.) In the published portion of this opinion, we agree with defendant that the trial court erred in failing to instru...
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Opinion The Department of Transportation (Caltrans) filed a complaint in eminent domain against Bertrand H. Woodson and Besse M. Woodson as trustees of the B. H. & B. M. Woodson Family Trust dated May 16, 1990 (Woodsons). The jury awarded the Woodsons $1,876,750 as just compensation for their property. This figure exceeded Caltrans’s final offer by $476,750. Nonetheless, the Woodsons’ motion for ...
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Opinion Issues on Appeal For over a century and a half, the judiciary has had the implied power to regulate the practice of law. (Hustedt v. Workers’ Comp. Appeals Bd. (1981) 30 Cal.3d 329, 336-337, and fn. 5 [178 Cal.Rptr. 801, 636 P.2d 1139], citing People v. Turner (1850) 1 Cal. 143, 150.) The judiciary traditionally has deferred to legislative enactment of “...
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Opinion Statement of the Case Mary E. Ingham filed a complaint against respondent Luxor Cab Company alleging wrongful ejectment and intentional and negligent infliction of emotional distress. The trial court granted respondent summary judgment and denied appellant’s motion for reconsideration. We reverse. Statement of Facts 1 Appellant is a 57-year-old woman who has...
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Opinion I. Introduction Respondent and plaintiff Gerald Mizel (Mizel) slipped and fell on a unidirectional access ramp. He suffered severe and permanent injuries. He sued appellants and defendants the City of Santa Monica (the City) and Shutters bn the Beach (Shutters). During trial, the trial court refused to permit defendants’ undisclosed expert to testify for impeachment purposes. (Code Ci...
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Opinion Defendant Fireside Thrift Co. (Fireside) appeals from an award of attorney fees in favor of plaintiffs Charles and Lisa Ritzenthaler, contending the Ritzenthalers waived their right to recover attorney fees when they accepted Fireside’s offer to compromise under Code of Civil Procedure section 998 (hereafter section 998). We agree with the trial court that the section 998 compromise agr...
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Opinion I. Introduction This is an unusual dependency case in which there are appeals from opposite sides. Remberto, the father of five children with his now estranged wife, Kimberly, appeals from an order adjudicating him to have committed sexual abuse on his eldest daughter. Specifically, he was found to have fondled her breasts and asked her to take pictures of him nude. The five ...
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113 Cal.Rptr.2d 584 (2001) 93 Cal.App.4th 1022 The PEOPLE, Plaintiff and Appellant, v. Paul Mortimer WHITE, Defendant and Respondent. No. E029989. Court of Appeal, Fourth District, Division Two. November 15, 2001. John Roth, Public Defender and Michael Kennedy, Deputy Public Defender, for Defendant and Respondent. Dennis Stout, District Attorney, Mark Vos, Lead Deputy District Attorney and Lyvia ...
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113 Cal.Rptr.2d 625 (2001) 93 Cal.App.4th 993 COMPUTERXPRESS, INC., Plaintiff and Respondent, v. Lee JACKSON et al., Defendants and Appellants. No. E027841. Court of Appeal, Fourth District, Division Two. November 15, 2001. *631 Law Offices of Yvonne M. Renfrew and Yvonne M. Renfrew, Santa Monica, for Defendants and Appellants. Best Best & Krieger, Douglas S. Phillips, G. Henry Welles and Jam...
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Opinion Irene Conlin Drapeau appeals from the trial court’s ruling that Louis Claude Drapeau’s “Early Retirement Benefit” (ERB) was his separate property.1 She contends the ERB was derived from a contractual right acquired during the parties’ marriage, and must therefore be characterized as community property. We agree, and reverse and remand on that issue. Jennifer also contends the trial court ...
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Opinion In these consolidated appeals, Levetus B., mother of the minor, Angel W., appeals from orders of the juvenile court denying her petition for modification and terminating her parental rights. (Welf. & Inst. Code, §§ 388, 366.26 [further undesignated statutory references are to this code].) In the published part of this opinion, we find the court erred in denying appellant’s request to repr...
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*1103 Opinion Objector Catherine M. Osier appeals from an order allocating attorney fees as part of a minor’s compromise. She contends the trial court had no jurisdiction to divide attorney fees between her and claimant G. John Jansen. She also maintains the court’s allocation of fees was improper under a theory of quantum meruit in that claimant’s services were of little or no b...
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Opinion In juvenile dependency proceedings, Mario A. and Kevin W. each petitioned the juvenile court to be declared the presumptive father of Kiana A. (May 1988). At the time of disposition, the juvenile court found in Kevin W.’s favor. Mario A. appeals. We affirm the juvenile court’s order. Factual and Procedural Background Kevin W. removed the minors Kiana A. and her half sibling, Mykea M. (June...
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113 Cal.Rptr.2d 690 (2001) 93 Cal.App.4th 1129 FLYING DUTCHMAN PARK, INC., Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent. No. A092504. Court of Appeal, First District, Division Two. November 20, 2001. As Modified December 25, 2001. Review Denied February 13, 2002. *692 Law Offices of J. Brian McCauley, J. Brian McCauley, for Appellant. Louise H. Renne, Cit...
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113 Cal.Rptr.2d 700 (2001) 93 Cal.App.4th 1159 Jeffrey Peter LUSHBAUGH, Plaintiff and Appellant, v. HOME DEPOT U.S.A., INC., et al., Defendants and Respondents. No. B143326. Court of Appeal, Second District, Division Four. November 20, 2001. Gronemeier & Associates and Dale L. Gronemeier, South Pasadena, for Plaintiff and Appellant. Katten Muchin Zavis, Thomas J. Leanse, Stacey McKee Knight a...
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113 Cal.Rptr.2d 708 (2001) 93 Cal.App.4th 1171 The PEOPLE, Plaintiff and Respondent, v. Titus GRAVES, Defendant and Appellant. No. B146634. Court of Appeal, Second District, Division Four. November 20, 2001. Review Denied February 13, 2002. *709 H. Clay Jacke II, Los Angeles, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Acting Chief Assistant Attorney General, ...
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Opinion This case represents another example of what regrettably has become an all too familiar scenario, men engaging in reigns of *1124 terror against women who attempt to break off sexual relationships with them. It never ceases to amaze and sadden us that there are men out there who believe that violence can “win back her heart” or who simply relish in violently maintaining control over w...
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114 Cal.Rptr.2d 37 (2001) 93 Cal.App.4th 1229 Marion Reynolds STOGNER, Petitioner, v. The SUPERIOR COURT of Contra Costa County, Respondent; The People, Real Party in Interest. No. A094828. Court of Appeal, First District, Division Five. November 21, 2001. Rehearing Denied December 17, 2001. Review Denied February 27, 2002. *39 William W. Veale, Contra Costa County Alternate Public Defender, Robe...
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Opinion In a joint trial defendant Michael Delano Adams was found guilty of murder in the second degree and defendant Byron Jae Peterson was found guilty of involuntary manslaughter. In addition it was found true both men proximately caused the death of a senior citizen within the meaning of Penal Code2 section 368, subdivision (b)(3)(A). Both were sentenced to prison. Adams and Peterson appeal, a...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 1243 Appellant, Randy Alan Valentine (Valentine) was convicted following jury trial of 21 counts1 of sex offenses against two young victims, N.C. and V. R. Valentine was thereafter sentenced to a total term of 81 years and four months in state prison and given...
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Opinion Raymond Balikov appeals from judgment entered dismissing his complaint against Southern California Gas Company (the Gas Company), following the sustaining, without leave to amend, the demurrer of the Gas Company. Balikov contends the court erred, because Public Utilities Code section 799, subdivision (a)(4), does not apply and because Los Angeles Municipal Code section 21.1.5 does not p...
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Opinion Chanh Minh Dang was convicted by jury verdict of 16 counts, including residential burglary, false imprisonment, assault with a firearm or deadly weapon, and dissuading a witness by force or threat. In the published portion of this opinion, we reject appellant’s argument that the *1295 trial court erred in permitting his former attorney to testify about appellant’s thr...
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*1305 Opinion This is an appeal from an order of dismissal following the grant of respondent Joe Titzer’s motion to quash service of process on a complaint filed by appellant Nam Tai Electronics, Inc. We affirm. Factual and Procedural Background The essential facts are not in dispute. Appellant is a consumer electronic products manufacturer incorporated under the laws o...
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113 Cal.Rptr.2d 793 (2001) 93 Cal.App.4th 1323 Richa VAHLE et al., Plaintiffs and Appellants, v. Jill E. BARWICK, Defendant and Respondent. No. A093671. Court of Appeal, First District, Division Four. November 27, 2001. *794 Perry, Johnson, Murray, Anderson & Miller, Michael G. Miller, Santa Rosa, Jessica R. Flores, for Appellants. Law Offices of Barwick and Gill and Thomas B. Gill, San Franc...
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113 Cal.Rptr.2d 800 (2001) 93 Cal.App.4th 1315 Gary PROVENZANO, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent. No. D036898. Court of Appeal, Fourth District, Division One. November 27, 2001. Gary Provenzano, in pro. per., for Plaintiff and Appellant. Bill Lockyer, Attorney General, Dennis W. Dawson and Kathryn M. Megli, Deputies Attorney General, for Defendant...
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Opinion Hundreds of workers at Coastal Berry Company believed their employer was pressuring them to accept the United Farm Workers union (UFW). They reacted by engaging in a protest and work stoppage, after which Coastal Berry discharged or refused to rehire 12 of them, including the 7 real parties in interest. The Agricultural Labor Relations Board (ALRB or Board) found that these termin...
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Opinion Introduction After 17 years of marriage, appellant Jenness Brewer (Brewer) and respondent Ovidio Federici (Federici) entered into a marital settlement agreement and stipulated to a judgment of dissolution based thereon. Subsequently, based upon mistake, Federici filed a motion to set aside the judgment and a motion to set aside the marital settlement agreement. Brewer appeals...
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113 Cal.Rptr.2d 804 (2001) 93 Cal.App.4th 1350 The PEOPLE, Plaintiff and Respondent, v. ROBERTO v. Defendant and Appellant. No. B142127. Court of Appeal, Second District, Division Three. November 28, 2001. *807 Randy Short, under appointment by the Court of Appeal, Torrance, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wen...
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Opinion Harry N. (the Minor), bom mid-January 1999, was declared a dependent of the juvenile court soon after his birth. He was bom with symptoms of drug withdrawal; both parents had histories of drug abuse, and his father had a history of arrests and convictions for violent offenses. He is currently in the care of respondents, his foster parents, with whom he was placed virtually at birth and wh...
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Opinion Civil Code section 47 provides generally that statements made in the course of an official proceeding are absolutely privileged. Those statements therefore cannot serve as a basis for civil liability. Civil Code section 47.5, however, creates an exception, allowing a peace officer to bring a defamation action against an individual who knowingly and maliciously files a false compla...
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Opinion Robert Brown (Brown) appeals from a judgment of dismissal entered after the trial court sustained a demurrer to his complaint without leave to amend. Brown sued Robert S. Kennard (Kennard) for abuse of process after Kennard enforced a purported money judgment by levying on Brown’s *43deposit account pursuant to a writ of execution. The purported judgment was entered against Robert Womack ...
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Opinion We are asked to decide whether Sergeant Robert Smith is entitled to arbitrate the decision of the Los Angeles Police Department to transfer him to a different assignment with the reduced pay applicable to that assignment. Appellant argues the issue is arbitrable because it *79 constitutes a downgrade in pay. Respondents argue it is not because transfers are reviewable...
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*67Opinion John Roe filed a complaint claiming the Office of Real Estate Appraisers violated a confidentiality clause in the stipulation by which an administrative disciplinary action against him was settled. The trial court sustained respondents’ demurrer without leave to amend. Appellant contends the trial court abused its discretion because all his causes of action showed entitlement to relief...
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Opinion An insurer refused to indemnify its insured for the settlement of an action alleging that the insured engaged in the market manipulation of *106 stock in violation of Corporations Code sections 25400 and 25500. 1 We hold that liability under section 25500 requires a “wilful act” within the meaning of Insurance Code section 533, which precludes coverage unde...
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Opinion Plaintiff California Medical Association, Inc. (CMA) appeals a judgment dismissing this lawsuit after the court sustained without leave to amend the demurrer of defendants Aetna U.S. Healthcare of California, Inc., et al. 1 to CMA’s second amended complaint. CMA contends the court erred in sustaining defendants’ demurrers to CMA’s second amended complaint’s claim for th...
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Opinion At issue in this action is the applicability of Corporations Code 1 sections 25400 and 25500 to defendants who did not both 1) sell and/or offer to sell, or buy and/or offer to buy securities, and 2) make misleading statements for the purpose of inducing the purchase or sale of a security. We hold that a defendant must have engaged in both activities in order to be liab...
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Opinion Plaintiff and appellant minor Leana Maria Sambrano, by her guardian ad litem Art Sambrano, et al., sued defendant and respondent City of San Diego (the City) for personal injuries suffered when she climbed into and was burned in a fire ring containing sand-covered hot coals at a beach park owned and operated by the City. In addition, Leana’s relatives (mother and sisters) brought ...
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Opinion Desert Healthcare District (Desert Healthcare) appeals from an order dismissing its second amended complaint following an order sustaining the demurrer of PacifiCare, FHP, Inc. (PacifiCare). Desert Healthcare alleges that PacifiCare (1) violated Health and Safety Code section 1371 of the Knox-Keene Health Care Service Plan Act of 1975 (Knox-Keene Act) (Health & Saf. Code, § 1340 et seq.);...
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Opinion Sandra Bonifield, individually and as the guardian of Jessica Rose Saunders-Krueger, and the Estate of Kimberly Anne Saunders (collectively plaintiffs) brought this wrongful death action after dismissing their related federal action without prejudice. 1 Defendants demurred on the ground that the state action was untimely. The superior court sustained the demurrer without leave to amen...
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Opinion Daniel LaPlante appeals from a summary judgment rendered against him and in favor of defendants Wellcraft Marine Corp., Genmar Holdings, Inc., and Galaxie Miller’s Landing, Inc., on LaPlante’s complaint for negligence, strict liability and breach of warranty. His claims arose from serious personal injuries he suffered in a boating accident. The trial court granted summary judgment...
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*318 Opinion The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) is a comprehensive statutory scheme that regulates the use, sales and labeling of all pesticides sold in the United States. (7 U.S.C. § 136 et seq.) FIFRA expressly prohibits states from imposing “any requirements for labeling or packaging in addition to or different from those required” under the act. (7 U.S.C. § 13...
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*420 Opinion The Lake County District Attorney Family Support Division (county) appeals in these three consolidated cases after the Lake County Child Support Commissioner (trial court) entered orders denying the county’s requests to enter default child support judgments against Christopher Falla, Douglas R. Hill and Harry R. Abram (defendants), pursuant to Family Code section 174...
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Opinion By an order separately filed, we consolidate the appeals from two related actions heard in the Superior Courts of Alameda and San Francisco Counties. In part I of this decision, we consider plaintiffs’ 1 appeal from a judgment entered in the Alameda action, following the granting of a motion for summary judgment in favor of defendants Major League Baseball, Major League...
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Opinion Mario (plaintiff) and Janelle Solis sued Kirkwood Resort Company (defendant, the true name of which is Kirkwood Mountain Resort, LLC), after a ski accident. The trial court granted defendant’s motion for summary judgment, finding plaintiff signed a release of negligence liability which embraced this accident, and that defendant owed no duty to plaintiff under the primary assumptio...
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Opinion Facts Marci S., a married woman, engaged in a brief sexual relationship with Mark L. in late December 2000, during which they conceived a child. A petition to dissolve Marci’s marriage had been filed in January 1997, but she had not obtained a final judgment of dissolution. The child, named Alexander, was born in September 2000, and Marci immediately relinquished *433him for adoption to J...
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Opinion This appeal raises an unsettled question under the Interstate Compact on Placement of Children (ICPC) (Fam. Code, § 7900 et seq.): Does the ICPC prevent a California court from ordering visitation between a dependent child and his noncustodial parent where a previous ICPC evaluation found the parent’s home unsuitable for placement? Under the circumstances of this case, we conclude it does...
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Opinion Defendant was convicted by jury trial of violating the sex offender registration statute (Pen. Code, former § 290, subd. (f)) by failing to notify law enforcement that he had changed his residence address. The jury also found true allegations that defendant had suffered four prior convictions within the meaning of Penal Code sections 667, subdivisions (b) to (i) and 1170.12. Defen...
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Opinion I. Introduction In the decision of In re Michael (1945) 326 U.S. 224, 227 [66 S.Ct. 78, 80, 90 L.Ed. 30], Associate Justice Hugo Black wrote: “All perjured relevant testimony is at war with justice . . . .” California has virtually surrendered in this war when it comes to perjury during depositions. As will be noted, we conclude that unless a deposition transcript ...
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Opinion Edward Ramirez pleaded guilty to charges of robbery and second degree murder, and is serving a term of 15 years to life. The murder victim was an accomplice to the robberies, who died in an automobile accident during a high-speed chase by the police. Ramirez has been incarcerated since 1982. The Board of Prison Terms (the Board) denied his applications for a parole release date in...
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*523 Opinion Juvenile court dependent Kristine W. appeals the court’s order permitting the San Diego County Health and Human Services Agency (the Agency) to receive certain information from her therapist regarding her therapy. She contends the court was not authorized to disregard her invocation of the psychotherapist-patient privilege. We affirm. Background Kristine’s ...
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Opinion Larry and Marilyn Conway (collectively the Conways unless the context indicates otherwise) and United Business Ventures, Inc. (United), 1 appeal from an order denying their motion to vacate a default *543 judgment entered against them in favor of Henry A. and Lillian Ellard (the Ellards). The Conways argue the default judgment was void because they were not...
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Opinion Paul L. appeals a juvenile court order made at the six-month hearing denying him visitation with his son, Mark L. We affirm the order because the court’s finding that visitation would be detrimental to Mark at that time is supported by substantial evidence. However, we are persuaded by Paul’s contention that the court erred by determining at the six-month hearing that Mark’s invocation of ...
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Opinion Rosa P. (mother) appeals a dispositional order entered by the juvenile court with respect to minors Karen R. (1987), Alvaro R. (1992) and Jennifer R. (1994). Factual and Procedural Background At the adjudication hearing in March of 2001, Karen R. testified that she previously lived with her maternal grandmother in Guatemala until approximately two years ago when she moved here at the age o...
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Opinion Defendants Alaska Insurance Company and its successor in interest New Hampshire Insurance Company (collectively New Hampshire) appeal a judgment requiring New Hampshire, as a primary insurer, to reimburse plaintiff United Services Automobile Association (USAA), as an excess insurer, the money USAA paid to settle a bad faith action brought against it by an injured third party claimant as...
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Opinion Summary In the General Election held November 7, 2000, the voters of California passed Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (the Act or Proposition 36). The Act requires probation and drug treatment, not incarceration, for the commission of “nonviolent drug possession offenses”, i.e., possession, use, transportation of controlled substances and similar ...
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*661 Opinion Defendant Maciej Andrzej Madeyski purports to appeal from an order forfeiting certain items of computer-related equipment. 1 He contends Ms federal constitutional rigMs were abridged by the demal of his right to have appointed counsel, the denial of his right to a jury trial, and by failing to have the facts justifying forfeiture proved beyond a reasonable...
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*698Opinion In this case, we will hold that General Order No. 55, adopted by the San Francisco Superior Court to help manage its complex asbestos litigation, does not violate California Rules of Court, rule 981.1, which preempts generally applicable local rules. I. Factual and Procedural Background By the early 1980’s, the complexity and volume of asbestos-related litigation in state and federal ...
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Opinion Plaintiffs Angelo Gouskos and Pete Gouskos sued defendants Aptos Village Garage, Inc. (Aptos), and Don Brownell for various causes of action arising from an automobile repair dispute. The trial court granted defendants’ motion for directed verdict as to the fifth cause of action (violation of the Rosenthal Fair Debt Collection Practices Act (Civ. Code, § 1788 et seq.) (Act)), ...
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Opinion Summary Subsequent to the expiration of a three-day notice to pay rent or quit, appellants, commercial tenants Sofa U Love and Ercicona Corporation, submitted a partial rent payment to respondent Woodman Partners, their landlord. Respondent accepted the payment and sent a letter within two days of receipt, informing appellants that it intended to proceed with the unlawful detainer act...
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114 Cal.Rptr.2d 680 (2001) 94 Cal.App.4th 998 The PEOPLE, Plaintiff and Respondent, v. Felix D. HIGHTOWER, Defendant and Appellant. No. A081424. Court of Appeal, First District, Division Four. December 20, 2001. Review Denied March 20, 2002.[**] *681 David Y. Stanley, Truckee, for Appellant. *682 Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, ...
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Opinion A jury convicted defendant Richard John Baldine of transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)) and possession of marijuana for sale (Health & Saf. Code, § 11359). In a bifurcated proceeding, the jury found true an attempted robbery strike allegation (Pen. Code, §§ 664/211, 667, subds. (b)-(i), 1170.12) and two prison term allegations (Pen. Code, § 667.5, s...
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114 Cal.Rptr.2d 575 (2001) 94 Cal.App.4th 797 George T. O'BYRNE et al., Plaintiffs and Appellants, v. SANTA MONICA-UCLA MEDICAL CENTER et al., Defendants and Respondents. No. B143702. Court of Appeal, Second District, Division One. December 20, 2001. *577 The Ronin Law Group and Kevin M. Clarke, Los Angeles, for Plaintiffs and Appellants. Ballard Rosenberg Golper & Savitt, Linda Miller Savitt...
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114 Cal.Rptr.2d 672 (2001) 94 Cal.App.4th 823 Crystal Lynn MORRIS, Plaintiff and Appellant, v. Michelle Ann BLANK, Defendant and Respondent. No. B147087. Court of Appeal, Second District, Division One. December 20, 2001. *673 Selman Breitman, Eldon S. Edson, Kelly M. Lynch, Los Angeles, and Lynette Klawon, for Plaintiff and Appellant. Calendo, Puckett, Sheedy & DiCorrado, Kim B. Puckett, Glen...
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Opinion Caught in a dispute reminiscent of a tennis match between the Los Angeles and San Luis Obispo Superior Courts, petitioner meritoriously contends that his petition for writ of habeas corpus should be adjudicated in Los Angeles. Game, set, and match; not to San Luis Obispo, but to petitioner and all inmates similarly situated who are entitled to timely decisions on petitions for writs of ...
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Opinion I. Introduction In these original proceedings, we consider an issue of first impression arising from elder abuse litigation: whether the statute of limitations applicable to a civil action for damages against a health care provider convicted of felony elder abuse (Pen. Code, § 368) is Code of Civil Procedure section 340.5, which provides a maximum three-year limitations perio...
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*983 Opinion I. Introduction The People petition for extraordinary relief from the orders of respondent court denying the People’s motions to quash the notices of deposition issued by real parties in interest Michael Thomas Cheek (Cheek) and Gregory Grant (Grant). The trial court’s orders allow the depositions of several Atascadero State Hospital physicians and psychologists...
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Opinion The False Claims Act (hereafter sometimes referred to as the Act) (Gov. Code, § 12650 et seq.) imposes treble damage liability on one who, among other things, “[k]nowingly presents or causes to be presented to an officer or employee of the state or of any political subdivision thereof, a false claim for payment or approval.” (Gov. Code, § 12651, subd. (a)(1).) Where the Attorney G...
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Opinion In this action by a mobile-home homeowners association against the owners of the mobilehome park, a jury awarded punitive damages in the amount of $6 million after the trial court instructed the jury that it was “an established fact” that defendants had violated Civil Code section 798.41, 1 causing actual damages of $36,401.85, which had already been paid. The trial cou...
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114 Cal.Rptr.2d 733 (2001) 94 Cal.App.4th 944 The PEOPLE, Plaintiff and Respondent, v. Daniel George ZICHWIC, Defendant and Appellant. No. H021621. Court of Appeal, Sixth District. December 21, 2001. Review Denied March 27, 2002.[*] *736 Andrew Parnes, Attorney for Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Atto...
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Opinion This case concerns the extent of insurance coverage provided under an “additional insured” endorsement to a commercial general liability policy. The trial court held the policy covers the additional insured for the factual circumstances presented here as constituting “liability arising out of’ the work of the named insured. At issue are (1) whether the notice of appeal was timely ...
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*1026 Opinion At the conclusion of his second trial a jury found defendant Juan A. Merced guilty as charged of the attempted premeditated murder of a peace officer involving the personal use of a firearm (Pen. Code, §§ 187, 664, subd. (e), 12022.5, subd. (a)) and being a past-convicted felon in possession of a firearm (Pen. Code, § 12021, subd. (a)). After finding true allegation...
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Opinion These appeals involve a multifaceted legal controversy that arose after Australian John Ryan, in August 1997, came to America to repeat the 12th grade at Rancho Buena Vista High School (RBV) and to participate in its basketball and football programs, but was later declared ineligible to participate in extracurricular California Interscholastic Federation (GIF) athletics. After exh...
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Opinion California Interscholastic Federation (CIF), 1 CIF Executive Director John Hayes, California Interscholastic Federation-San Diego Section and CIF San Diego Section Commissioner Jan Jessop (collectively CIF-SDS) appeal a mandamus judgment directing CIF-SDS to vacate its internal affirmed as modified undue influence ruling arising from the athletic eligibility application...
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Opinion In the published portion of this opinion, we hold plaintiffs’ malicious prosecution cause of action was subject to a special motion to strike under California’s anti-SLAPP (strategic lawsuit against public participation) statute. (Code Civ. Proc., § 425.16.) In the unpublished portion of the opinion, we conclude plaintiffs met their burden to establish a probability they would prevail on ...
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*1113Opinion In this appeal, we consider whether Civil Code section 8461 immunity precludes suit by a child who suffered injuries when he attempted to retrieve his kite from an overhead power line. We determine the utility is immune from suit under these circumstances and none of the statutory exception applies. Further, we conclude Public Utilities Code section 2106 does not abrogate the immunit...
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Opinion Plaintiffs Deltakeeper, San Joaquin Audubon Society, California Sportfishing Protection Alliance, and the Sierra Club (collectively plaintiffs) appeal from an order granting a motion to dismiss the action for failure to join indispensable parties. (Code Civ. Proc., § 389, subd. (b).) 1 The named defendants, Oakdale Irrigation District (Oakdale), South San Joaquin Irri...
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Opinion Objector Thomas M. Hornung, as the warden of Richard J. Donovan Correctional Facility (Donovan), appeals an order awarding monetary sanctions (Code Civ. Proc., § 177.5;1 Cal. Rules of Court, rule 2272) against the Board of Prison Terms (the Board) in habeas corpus proceedings brought by petitioner Gene Paul Woodham. Hornung contends punitive sanctions were not a proper remedy under section...
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Opinion Appellant Kim Ostler seeks to collect past due child support from her former husband, respondent George Vroenen. The trial court found *1178she was estopped from collecting the portion of the arrearage that accumulated when she actively concealed the whereabouts of the parties’ children. We conclude the defense of estoppel based on concealment was not available in this case because the co...
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Opinion Appellant Steve Eng appeals his judgment of conviction following a no contest plea to possession for sale of heroin (Health & Saf. Code, § 11351) (count 1) and possession for sale of methamphetamine (Health & Saf. Code, § 11378) (count 2), with admitted allegations of two prior felony convictions for possession of dangerous drugs (Pen. Code, § 667.5, subd. (b); Health & Saf. Code,...
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I respectfully dissent. I Although I agree with my colleagues’ determination that parol evidence was admissible in determining whether Maria’s domestic partnership claim would be a contest within the meaning of the no contest clause in Viljo’s will, I do not adopt the majority’s narrow interpretation of the remedies available under the safe harbor provisions of Probate Code1 section 21320. As they...
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Opinion Impco Technologies, Inc. (Impco) appeals from an order vacating a previous order that the matter should proceed to binding arbitration. Impco argues there was a stipulation signed by the attorneys after each received its client’s authorization. Respondent CPI Builders, Inc. (CPI) claims that it withdrew its consent to its attorney to enter into binding arbitration, and the court p...
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*1152 Opinion Intervener Crum & Forster appeals from a trial court’s order granting a motion to strike its complaint in intervention filed in an action against defendants Astron Computer Products and John Lee. Intervener contends the court abused its discretion. We agree and remand for further proceedings. Facts Plaintiff Mary Ellen Lohnes sued defendants for damages sh...
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*1145Opinion Robert V. Cross (husband) appeals from a judgment dissolving his marriage to Judith C. Cross (wife), and dividing their assets and obligations. On appeal, husband contends that the trial court erred in failing to (1) reimburse husband and/or the community for improvements made to wife’s separate property with husband’s separate property funds; (2) award husband a pro tanto interest i...
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Opinion In this declaratory judgment action, appellant George Vargas contends the trial court erred in granting summary judgment against him and in favor of Vargas’s employer, respondent Best Ovemite Express, Inc. (hereinafter Best), and Best’s insurer, respondent Athena Assurance Company (hereinafter Athena). Vargas contends that a question of material fact exists as to whether he was acting i...
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Opinion The primary issue presented in this appeal is whether the constituent members of a Joint Powers Agency (JPA), created by a joint powers agreement pursuant to Government Code section 6500 et seq., are liable for the contractual obligations of the JPA, where the joint powers agreement specifies that they are not and does not provide for liability other than that of the JPA. We conclude they ...
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Opinion In this action for a refund of franchise taxes, The Reader’s Digest Association, Inc. (RDA), appeals from a judgment in favor of the California tax authorities. Federal law exempts an out-of-state company from income-based state taxation if that company merely sells or *1242solicits sales through an in-state independent contractor.1 The pivotal issue here is whether a wholly owned subsidi...
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*1221 Opinion This appeal raises the issue whether, in a case where senior and junior debts, secured by the same property, were once held by the same creditor, which thereafter sells the loans to two independent parties, California’s one-form-of-action rule under Code of Civil Procedure section 726 prohibits the junior lienholder from bringing a separate action to recover its deb...
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Opinion N. Arden Danekas appeals from an order denying his petition for writ of mandate, brought against the San Francisco Residential Rent *641 Stabilization and Arbitration Board (Rent Board) to overturn section 6.15A of the Rent Board’s rules and regulations (hereafter section 6.15A). Section 6.15A implements Ordinance No. 237-99, passed by the San Francisco Board of Super...
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*419 Opinion On September 15, 1999, defendant Dragisa Lazarevich was charged by information with two counts of retaining and concealing a minor child (Pen. Code, § 278.5). 1 The information alleged that the violations took place between “October 1, 1989, and June 8, 1995.” On February 7, 2000, the trial court concluded that our state did not “maintain jurisdiction” over any of the charged e...
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Opinion On July 1, 1999, appellant was charged in a misdemeánor complaint with violating Penal Code1 sections 422 (terrorist threat—count I) and 594, subdivision (a) (vandalism—count II). Appellant pled not guilty to both charges. After a jury trial lasting approximately three weeks, the jury acquitted appellant of the terrorist threat charge, but convicted him of vandalism. Appellant was thereaf...
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