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All Reporters → cal-rptr → Volume 103

Opinions in cal-rptr Volume 103

Opinion George M. Kober resided in the town of Fort Bidwell, Modoc County, State of California, in the 1880’s. He subsequently moved to Washington, D.C., and thereafter died a resident of that district, and his last will and testament executed in 1928 was admitted to probate in the District of Columbia in 1931. In 1932 or 1933, pursuant to the terms of the will, the sum of $10,000 was distrib...
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Opinion Defendant Paul A. Norwood and Willie Curtis Andrews 1 were charged by information with four separate violations of Penal Code section 475a. Counts I and H specified the instrument involved in each of those counts as “a completed warrant.” The specific pleading of counts ITT and IV alleged, in part, possession of “a completed money order . . . with the intent to defraud ...
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Opinion This is an appeal from an interlocutory order of the trial court decreeing, over the objection of appellant, beneficiary of a deed of trust, that $19,085 of a deposit in court in an eminent domain proceeding be distributed to respondents, trustors and landowners, and from a final order of apportionment decreeing that the entire proceeds of the condemnation award be distributed to ...
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Opinion The three original plaintiffs in this proceeding were elected city councilmen of San Bruno. Petition for their recall was filed and, on December 10, 1970, the city clerk filed with the city council his certificate of the sufficiency of the petitions. Plaintiffs, asserting insufficiency, sought injunctive relief or writ of mandate barring any further proceedings on the recall. The recall...
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Opinion By petition filed May 19, 1970, the People alleged that appellant Dana J., a minor, came “within the provisions of Section 602 of the Welfare and Institutions Code of California, in that: said minor, on or about 5-2-70 at 11:30 P.M. at the corner of Orange Drive and Willoughby, *770Hollywood, County of Los Angeles, was illegally in possession of a narcotic, to wit: marijuana, thereby viol...
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Opinion Defendant was charged in five counts with having aided and abetted five children, ages 8 to 13 years of age, to commit *387 violations of Penal Code section 288 with themselves and with one another. The People appeal from an order setting aside counts I and II of the information. (Pen. Code, § 995.) In granting the motion to dismiss these two counts the trial court stated that there...
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Opinion Appellant, a state certified official court reporter, raises a single issue on the basis of uncontroverted facts: Is the provision of Penal Code, section 869 requiring a court reporter to furnish a copy of a felony preliminary hearing “without charge” to the county valid and enforceable? In the case at bench, appellant reported and caused to be transcribed the record of a preliminary ...
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Opinion Petitioner, workmen’s compensation carrier for the City of San Rafael, seeks review and annulment of an opinion and decision after reconsideration issued by the Workmen’s Compensation Appeals Board on October 19, 1971. The record discloses the following facts. Gilbert Freitas, a policeman employed by the City of San Rafael, suffered a cumulative injury to his nervous system due to the...
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28 Cal.App.3d 161 (1972) 103 Cal. Rptr. 33 ROBERT MARION CURTIS, Plaintiff and Appellant, v. SAN MATEO JUNIOR COLLEGE DISTRICT OF SAN MATEO COUNTY, Defendant and Respondent. Docket No. 30357. Court of Appeals of California, First District, Division Three. October 17, 1972. *162 COUNSEL Richard H. Perry for Plaintiff and Appellant. Keith C. Sorenson, District Attorney, and L.M. Summey, Deputy Dist...
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Opinion This is an appeal by Allstate Insurance Company (hereafter insurer) from a declaratory judgment determining that the uninsured motorist coverage in the automobile liability policy issued to J. A. R. Le-Clair (hereafter insured) had not been waived. The insurer contends that the insured’s initial written waiver remained in effect even after the insured instructed the insurer’s agen...
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26 Cal.App.3d 327 (1972) 103 Cal. Rptr. 38 Estate of ANTONIO GIOLITTI, Deceased. HOUSTON I. FLOURNOY, as State Controller, Claimant and Appellant, v. LEON H. WADE, as Executor, etc., et al., Objectors and Respondents. Docket No. 1556. Court of Appeals of California, Fifth District. June 23, 1972. *329 COUNSEL Myron Siedorf, Robert G. Harvey and Ralph W. Amerson for Claimant and Appellant. W.A. Bl...
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Opinion The sole issue is whether the amount of federal gift tax paid upon the transfer of property in contemplation of death when said property subsequently becomes subject to federal and state inheritance taxes is deductible from the appraised value of the property to determine the “clear market value” upon which the state inheritance tax is determined under circumstances where the amount of th...
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26 Cal.App.3d 559 (1972) 103 Cal. Rptr. 49 HARBOR INSURANCE COMPANY, Plaintiff and Respondent, v. EMPLOYERS' SURPLUS LINES INSURANCE COMPANY, Defendant and Appellant. Docket No. 37973. Court of Appeals of California, Second District, Division Two. June 29, 1972. *561 COUNSEL Kirtland & Packard and Harold J. Hunter, Jr., for Defendant and Appellant. Wyman, Bautzer, Rothman & Kuchel and Cha...
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Opinion Pursuant to the provisions of section 1138 of the Code of Civil Procedure, the parties hereto submitted an agreed statement of facts to the superior court, together with the question whether an insurance policy issued by respondent covered the liability, if any, of one Billy Joe Wood to plaintiff on account of a collision which occurred on July 13, 1966. On. that day, plainti...
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Opinion A jury found defendant and Lisboa guilty of first degree murder. On defendants appeal from the judgment the same was affirmed. (People v. Sosa (1967) 251 Cal.App.2d 9 [58 Cal.Rptr. 912].) Petition for hearing in the Supreme Court of California and petition for writ of certiorari in the United States Supreme Court were denied. Subsequently, pursuant to defendant’s petition, the Supre...
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26 Cal.App.3d 549 (1972) 103 Cal. Rptr. 63 THE PEOPLE EX REL. DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, v. INTERNATIONAL TELEPHONE & TELEGRAPH CORPORATION, Defendant and Appellant. Docket No. 28149. Court of Appeals of California, First District, Division Three. June 29, 1972. *550 COUNSEL Fadem & Kanner and Gideon Kanner for Defendant and Appellant. Harry S. Fenton, John P. H...
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Opinion The moving party in this proceeding, the respondent State of California (the State), filed this motion for an order to recall the remittitur on the ground that the State as the prevailing party is; entitled to an award of costs on appeal. The property owner, International Telephone and Telegraph Corporation (ITT), had appealed from the judgment of the trial court in a condemnation action;...
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Opinion Defendant was charged by indictment with possession of heroin (Health & Saf. Code, § 11500), possession of a restricted dangerous drug, benzedrine (Health & Saf. Code, § 11910), possession of narcotics paraphernalia (Health & Saf. Code, § 11555), and unlawful possession of a weapon (Pen. Code, § 12020). Pursuant to Penal Code, section 1538.5, subdivision (i) defendant moved to sup...
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Opinion After a nonjury trial, defendant was convicted of unlawful sexual intercourse with a female under the age of 18, a felony, in violation of Penal Code section 261.5. His two codefendants were found, not guilty. Proceedings were suspended and defendant was ordered placed on probation for two years under various conditions. Defendant appeals from the judgment (order granting probatio...
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Opinion We issued an alternative writ of mandate to review the trial court’s order of February 8, 1972 in Thompson, et al. vs. The *302 Atchison, Topeka and Santa Fe Railway Company, et al., Los Angeles Superior Court case No. 942305, granting the motion for change of venue filed by The Atchison, Topeka and Santa Fe Railway Company, real party in interest. Santa Fe has filed ...
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Opinion Defendants Wayne Lee and Tom T. Lee (sometimes hereinafter referred to as the Lees) and E. A. Norwitt and Annabelle Norwitt (sometimes hereinafter referred to as the Norwitts) appeal from a judgment entered against them in favor of plaintiff Schrader Iron Works, Inc., a corporation (hereafter Schrader) in an action to foreclose a mechanic’s lien. The judgment decreed that the Lees...
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Opinion This is an action by the widow and minor children of Fred W. Carr, deceased, to recover damages from a telephone company *540for his wrongful death. The jury returned with a defense verdict. Plaintiffs’ motion for a new trial was denied, and plaintiffs appeal from the judgment.1 The trial court instructed the jury on the doctrine of assumption of risk (BATI No. 4.30, as modified) and admit...
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Opinion By petition for writ of review petitioner, an applicant for disability indemnity, contends that respondent board in denying his petition for reconsideration acted without and in excess of its. powers and unreasonably because the findings of fact with regard to the issue of his occupation, rating factors, percentage of his permanent disability, and the date his disability became pe...
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Opinion Joseph Patrick Senkir (defendant) appeals from a judgment based upon verdicts imposing sentences for possession of restricted dangerous drugs for sale (Health & Saf. Code, § 11911), possession of narcotics for sale (Health & Saf. Code, § 11500.5), and possession of marijuana (Health & Saf. Code, § 11530). *414 The contraband of whose possession defendant was found gu...
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Opinion In the nonjury trial of this case plaintiffs rested, and defendants successfully moved for judgment under Code of Civil Procedure section 631.8. 1 Plaintiffs appeal from the judgment. 2 The principal problem is that in passing upon the motion the trial court did not exclude from consideration several exhibits which the defense had placed in evidence as adju...
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Opinion The complaint in the above captioned case charged the appellants Martinez and Saucedo with violation of Health and Safety Code section 11530, possession of a narcotic, to-wit: marijuana; and appellants Aguirre and Campbell with violation, of Health and Safety Code section 11556, being in a place where narcotics were being used. A motion to quash the search warrant and to suppress evidence ...
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Opinion This is a case of first impression concerning the admissibility into evidence in drunk-driving cases of the results of blood alcohol tests which were not performed in accordance with statutory standards (Health & Saf. Code, §§ 436.51, 436.52). In 1969 by chapter 1421 of the Statutes of 1969, the Legislature added the following provisions to the Health and Safety Code: “436.51. On or *Supp...
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*765 Opinion Harry Redmon, David Perry, “Rockey” Dixon, and a person identified as “John Doe” Ott were jointly charged by indictment with murder and with conspiracy to commit murder. Redmon, Perry, and Dixon pleaded not guilty to both counts of the indictment and were jointly tried by jury; “John Doe” Ott had not been apprehended by the time of trial. At the close of the prosecution’s case, t...
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Opinion This is an appeal by the heirs of Raymond Robbins and Lynn Marie Robbins from a judgment entered in favor of defendant Hewlett-Packard Corporation (hereinafter referred to as “Hewlett-Packard”) following a court trial of their action for wrongful death. Plaintiffs’ sole contention is that the court erred in finding that William K. Cowan, Jr., an employee of Hewlett-Packard, was ne...
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Opinion The superior court proceeding which is the genesis for the motion to dismiss on appeal to which this opinion is addressed, started with a petition to vacate an arbitration award, filed by the respondent and moving party in this court on August 5, 1971. Before the petition was heard the appellants, on September 7, 1971, filed a motion for an order confirming the award. Respondent’s pet...
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Opinion The People have appealed from an order granting the defendant’s motion to set aside an information charging him with possession of marijuana in violation of section 11530 of the Health and Safety Code. The motion to set aside, and an accompanying motion to suppress evidence under section 1538.5 of the Penal Code, which was rendered moot by the order on the former motion, were made on th...
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Opinion This case arises out of a personal injury accident wherein a motorcycle being operated by appellant collided with an automobile driven by respondent. Appellant and respondent were plaintiff and defendant, respectively, in the trial court. The case was tried before a jury. Appellant submitted BAJI Instruction No. 4.40, concerning the duty of one in imminent peril, and requested that th...
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26 Cal.App.3d 220 (1972) 103 Cal. Rptr. 208 Estate of RUTH R. KINGMAN, Deceased. HOUSTON I. FLOURNOY, as State Controller, Petitioner and Appellant, v. SUSAN FELAT, as Executrix, etc., et al., Objectors and Respondents. Docket No. 39264. Court of Appeals of California, Second District, Division Four. June 20, 1972. *221 COUNSEL Myron Siedorf, Walter H. Miller and Robert J. Hansen for Petitioner a...
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Opinion Houston I. Flournoy, State Controller, appeals from an order of the trial court sustaining the objections of Susan Felat, executrix, and. Security Pacific National Bank, trustee, in respect to the determination of inheritance tax due in regard to the estate of Ruth R. Kingman, deceased. Ruth R. Kingman (hereinafter referred to as the decedent) died testate *222on or about May 6, 1970, a re...
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Opinion The People appeal from order dismissing information charging defendant with a violation of section 311.2, Penal Code— knowingly exhibiting to others obscene matter, to wit, a motion picture— and a prior conviction of the same section-, after defendant’s motion to dismiss pursuant to section 995, Penal Code, was granted. On July 15, 1971, Officer Kimber served a search warrant for thre...
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Opinion This is an appeal by the City of Pacific Grove and its tax administrator (hereafter City) in two companion cases 1 presenting identical questions of law. The City appeals from a judgment holding void and enjoining the enforcement of a City ordinance that imposed a tax on occupants of retirement homes. The City contends that: 1) as respondents paid no tax due, they have ...
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Opinion Upon petitioner’s application to this court for writs of habeas corpus, prohibition, and mandamus, we issued an order to show cause for the purpose of determining whether Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709], In re Tahl (1969) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449], and In re Sutherland (1972) 6 Ca...
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Opinion Thirty-eight days after his last alleged sale of heroin to narcotics officers, defendant was arrested and charged with five counts of violating section 11501 of the Health and Safety Code. After the withdrawal of his motion pursuant to section 1538.5 of the Penal Code, he waived trial by jury and stipulated to- submit the case on the transcript of the preliminary hearing, but reserved t...
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*451 Opinion Jerome Sharp was charged with a violation of Penal Code section 487, subdivision 1 (grand theft of personal property having a value in excess of $200). He and his court-appointed counsel waived trial by jury, and defendant was found guilty' as charged and sentenced to prison. He appeals from the judgment of conviction. His principal contention is that the trial court...
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Opinion Henry Lawrence Siegenthaler appeals from a judgment upon a conviction of burglary. (Pen. Code, § 459.) We hold, contrary to defendant’s contentions, that evidence seized at the time of his arrest infringed no constitutional right, that an extrajudicial statement was properly received in evidence, and that defendant was not denied a right of self-representation at trial. The record, wh...
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Opinion This is an action to foreclose mechanics’ liens filed, by plaintiffs M. Arthur Gensler, Jr. & Associates, Inc., and Lambert & Wells Construction Company, an architectural firm and a general contractor, *698 respectively, in connection with services performed by them in remodeling the third floor of defendant’s building for its lessee, Tourist Information Program Servi...
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Opinion Defendants appeal from a judgment that they refund to plaintiff, with interest thereon, the sum of $8,369.56 paid by plaintiff under *706 protest as a personal property tax on 13,072,720 pounds of sun-cured alfalfa pellets owned and stored by plaintiff at its leased storage facility at the Port of Sacramento on the lien date, March 6, 1967. 1 Construing t...
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Opinion In an information filed by the District Attorney of San Luis Obispo County defendant was charged with sale of marijuana in violation *663 of section 115.31 of the Health and Safety Code. Two prior felony convictions were alleged. Defendant pleaded not guilty and denied the priors. Trial was by jury, and defendant was found guilty as charged. The priors were admitted by defendant durin...
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*852 Opinion By information defendant Steven John Orr was charged with burglary (Pen. Code, § 459). His motion to suppress real and testimonial evidence under Penal Code section 1538.5 was heard, argued, and denied. He thereupon duly waived a jury trial and stipulated to submission of his case on the transcript of the preliminary examination (In re Mosley (1970) 1 Cal....
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*778 Opinion At the time of her death, Sadie Phelps was a joint tenant with Albert and Marian Allen (husband and wife) of bank accounts in the amount of $14,135.38. She also owned property valued at her death at $1,074.25 which she bequeathed to Mrs. Allen by will. Mrs. Allen, however, did not receive this bequest because claims against the estate consumed all but $300 of the pro...
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6 Cal.3d 239 (1971) 499 P.2d 961 103 Cal. Rptr. 281 THE PEOPLE, Plaintiff and Appellant, v. FRANK MICHAEL BLOCK, Defendant and Respondent. Docket No. Crim. 15575. Supreme Court of California. In Bank. December 7, 1971. *241 COUNSEL Thomas C. Lynch and Evelle J. Younger, Attorneys General, William E. James, Assistant Attorney General, Joseph P. Busch, Jr., District Attorney, Harry Wood and Donald ...
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Opinion This is a proceeding to review a recommendation of the Disciplinary Board of the State Bar of California in L.A. 29855 that Arthur S. Black be suspended from the practice of law for three months 1 and its recommendation in L.A. 29935 that he be suspended for three months in addition to any imposed in L.A. 29855. 2 The two proceedings were heard by different...
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Opinion Under the financial responsibility laws (Veh. Code, §§ 16000-16553) 1 the Department of Motor Vehicles (hereinafter the department) will suspend the license of a driver who is involved in an automobile accident which has resulted in bodily injury or property damage in excess of $200 unless he either deposits security with the department sufficient in the opinion of the department to s...
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Opinion The Department of Corrections dismissed appellant Martin from his civil service position as a correctional officer at San Quentin *576 Prison on July 24, 1970. After an administrative hearing, the State Personnel Board upheld the dismissal. Martin then filed in the Sacramento Superior Court a petition for a writ of mandate to compel his reinstatement with back pay. He...
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Opinion In this proceeding petitioner seeks a writ of mandate to compel the superior court to grant motions for partial summary judgment and. for a preliminary injunction. The underlying action in the respondent su *523 perior court was brought by petitioner and others (hereinafter called plaintiffs) against Allied-Canon Company (hereinafter called defendant) to enjoin defendant from interfer...
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Opinion Defendants contracted to buy a West Sacramento motel from plaintiff, Sofia Kudokas, went into possession and operated the motel After several years defendants defaulted in their payments but refused to surrender possession. Plaintiff filed this action to recover and quiet title to the motel, its furnishings and equipment. Defendants cross-complained, charging fraudulent representa...
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Opinion By information, defendants Carter and Witwick, along with two others, were charged in count I with kidnaping (one Ruth Chadwick on January 12, 1968) for the purpose of robbery, in violation of Penal Code section 209; in count II, with robbery (of one Ruth Chadwick on January 12, 1968), in violation, of Penal Code section 211; in count III, with burglary (of the residence of one Ruth Cha...
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Opinion Defendant Benny Joseph Medina appeals from a judgment of conviction for violation of Penal Code section 211 (armed robbery). Defendant Walter Frederick Morrison appeals from a judgment of conviction for violation of Penal Code section 211 (armed robbery) and Penal Code section 240 (simple assault). *813 The Facts The evidence most favorable to the People, as the respondent, is a...
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Opinion Plaintiff brought the present action for declaratory relief against defendant Elite Insurance Company and H. F. Bensfield Insurance Agency (agency) 1 seeking a declaration that the uninsured motorist provision of a motorcycle liability policy issued to plaintiff’s deceased husband was in full force and effect at the time of the accident resulting in Ms death. Defendant ...
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Opinion In these consolidated appeals plaintiff Donald Tyron Franklin appeals from the order denying his petition for a writ of mandate (1 Civil 29013) and from a judgment of dismissal in an action for claim and delivery, conversion and declaratory relief (1 Civil 29803). Statement of the Case This case involves a revolver which was introduced into evidence at a preliminary hearing in a c...
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Opinion The trial court entered a judgment enjoining defendant from publishing and distributing certain writings and ordering him to surrender written material to plaintiff but denying plaintiff’s prayer for damages. Defendant appeals from the injunctive phase of the judgment, and plaintiff appeals from that portion denying damages. After a nonjury trial the court made detailed findi...
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Opinion Petitioner, Donald Paul Griffin, seeks writs of mandamus and prohibition directed to the Superior Court of Stanislaus County after denial by that court of multiple pretrial motions on the eve of his second trial on a murder charge. He also seeks reversal of the trial court’s order fixing bond for petitioner in the sum of $150,000 cash or corporate surety or $300,000 personal undertaking...
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Opinion This is an action for damage to real property caused by flooding occasioned by the alleged diversion by appellant Jones of the waters of McCoy Wash near Blythe, California. The trial was bifurcated and the solé issue of liability was first tried before a jury. A verdict was returned in favor of respondents and against appellant Jones, holding him liable for the injuries...
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Opinion Defendant Francisco Serrano Barajas appeals from a judgment of conviction sentencing him to prison. He was originally charged with one count of possessing narcotics (Health & Saf. Code, § 11500) and one count of possessing restricted dangerous drugs (Health & Saf. Code, § 11910). After denial of his motion to suppress evidence obtained under a search warrant, he entered a plea of ...
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Opinion On October 27, 1971, the Orange County Air Pollution Control District adopted its rule 74 which purports to phase ■ out the lead content of gasoline sold at retail within the territorial limits of the district over a three-year period starting July 1, 1972. On March 28, 1972, real parties in interest herein filed action No. 191239 in the Orange County Superior Court seeking declar...
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*48 Opinion —The Sarong Gals is a bar featuring live entertainment. For several months it was rather obviously under police surveillance and among the hilarious highlights of the “entertainment” observed by the police were: (1) A naked female dancer masturbating on the stage, (2) A male customer openly masturbating while watching a naked dancer simulating sexual intercourse. (3) A naked dance...
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Opinion Plaintiffs, Culcal Stylco, Inc. and eight other corporations, ■appeal the dismissal of defendants, Vornado, Inc., Unimart, Inc. and Del Amo Holding Corporation, from an action against them and other defendants. The dismissal followed the sustaining, without leave to amend, of a *881 general demurrer by these three defendants to plaintiffs’ first amended complaint against them for inte...
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Opinion This is an appeal from a municipal court judgment rendered in favor of Wilson Furniture, Inc. (Wilson’s), against Southern Pacific Transportation Company (Southern Pacific). Southern Pacific appeals the municipal court’s decision to allow damages to Wilson’s based on retail value. Southern Pacific contends that the damages to which it is liable should be based on wholesale value. The fact...
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7 Cal.3d 801 (1972) 500 P.2d 1 103 Cal. Rptr. 425 In re RODERICK P., a Person Coming Under the Juvenile Court Law. KENNETH E. KIRKPATRICK, as Chief Probation Officer, etc., Plaintiff and Respondent, v. RODERICK P., Defendant and Appellant. Docket No. Crim. 16155. Supreme Court of California. In Bank. August 16, 1972. *803 COUNSEL Richard S. Buckley, Public Defender, James L. McCormick, John J. Gi...
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Opinion A jury found defendant guilty of first degree murder (Pen. Code, § § 187, 189) and first degree robbery (Pen. Code, § § 211, 211a) and fixed the penalty for the murder -at death (Pen. Code, § 190).1 Defendant’s motion for a new trial was denied. As the death penalty cannot be constitutionally imposed we modify the judgment in accordance with *815People v. Anderson (1972) 6 Cal.3d 628 [100 ...
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*137Opinion Babe M. Cox, as administrator of the estate of Allen J. Cox, deceased, and as administrator of the estate of Roma Cox, deceased, has appealed from a judgment of dismissal following the sustaining of a demurrer to his amended complaint without leave to amend. One of the defendants was the Board of Retirement of the Imperial County Employees Retirement Association (Association). Plaintif...
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Opinion The People appeal an order of the superior court setting aside an information charging Earl Anthony Martinez with receiving stolen property. The issue is whether there was sufficient evidence, outside of Anthony’s own extrajudicial statements, to establish the corpus delicti of the crime charged, receiving a stolen toaster and a stolen blender. The following evidence was introduced at...
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Opinion This is a People’s appeal from an order dismissing an information charging respondent with possession of secobarbital entered after respondent’s motion to suppress evidence of the contraband was granted. We reverse the order. At 12:11 a.m., on April 30, 1971, respondent was arrested for misdemeanor drunk driving in violation of Vehicle Code section 23102. The arresting officer was of ...
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Opinion This is an appeal by the Board of Medical Examiners of the State of California (Board) from a judgment ordering issuance of a peremptory writ of mandate commanding the Board to vacate its order revoking respondent’s physician’s and surgeon’s certificate. Respondent was licensed to practice medicine and surgery in the State of California in 1961. After practicing in the Canal ...
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Opinion While undergoing a hemorrhoidectomy performed at a Los Angeles hospital in May of 1967, plaintiff-wife suffered an adverse reaction (“hypoxia”) to the anesthetic administered—her respiration either stopped or became shallow for a period of time fixed at from less than a minute to three minutes. After completion of surgery, following reestablishment of respiration, she was taken to the h...
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*973 Opinion The plaintiffs appeal from a judgment denying a refund of taxes paid on their income to defendant State of California Franchise Tax Board for the years 1962, 1963 and 1964. It is a basic principle of income taxation, law that an individual or corporation shall pay a tax measured by his or its own income. (See Hoeper v. Tax Commission, 284 U...
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Opinion Plaintiff taxpayer appeals from a judgment denying her claim of exemption filed under Code of Civil Procedure sections 690.6, 690.50 and 690.51. By the claim she sought the release of $72.44 in wages withheld by her employer and transmitted to the defendant Franchise Tax Board (Board) pursuant to its order issued under Revenue and Taxation Code section 18807 (now renumbered § 1881...
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Opinion Two lawsuits were filed against three defendants as a result of a collision between a tractor (earthmover) and a truck on September 6, 1966, at the intersection of Route 115 and Allbright Street in *943 the County of Imperial. The truck driver (Oliver Strait) was seriously injured in the collision and sued to recover damages for his injuries. The truck owner (Topham &...
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Opinion This is an appeal from a judgment of conviction following a trial by jury which found appellant guilty of violations of Health and Safety Code section 11915 (possession of paraphernalia used for injecting a dangerous drug); Business and Professions Code section 4143 (possession of hypodermic needle); Penal Code section 12021 (felon possessing a firearm capable of being concealed); and P...
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Opinion Petitioners are the remaining defendants in a personal injury suit pending in the Yolo County Superior Court. Three other defendants settled with the plaintiff minor and received releases. Petitioners charge that these releases were not given in good faith as required by Code of Civil Procedure section 877, violating California statutes which authorize pre-verdict settlement with ...
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Opinion Bernice Brown appeals an interlocutory judgment of dissolution of her marriage to Leroy Brown. She contends the trial court *190 erred in refusing to grant her a continuance and in finding that there was no community property, Bernice and Leroy were married in South Carolina in 1944, they had four children, and they separated in 1960. Leroy petitioned for dissolution of their marria...
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Opinion The appeal by plaintiff Burke Concrete Accessories, Inc. (hereafter Burke) is taken from a summary judgment construing certain language of an insurance policy. The parties stipulated to the facts upon which the judgment was based. They may briefly be stated as follows. In building construction metal “snap ties” are sometimes used to maintain proper distances between the ...
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Opinion In this action for unlawful detainer filed by plaintiff MCA, Inc., defendant Universal Diversified Enterprises Corporation appeals from a final judgment incorporating (1) an order granting plaintiff’s motion for partial summary judgment (for possession of certain real property); 1 and (2) the subsequent granting of damages (including those for unlawful detention of prop...
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Opinion Appellant Mrs. Caterina Minoletti was injured when the top part of a double-hung window in the kitchen of her apartment came down and amputated a part of her third right finger., Appellant had asked respondent Leo R. Sabini, the landlord, to repair two of the windows in her kitchen, apparently because the rope was broken. The record does not disclose the length of time this condition ...
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*211 Opinion The complaint sets forth three causes of action: breach of contract; fraud; and interference with advantageous economic relationship. Defendant Price, the only named defendant, filed a demurrer to all three causes of action. The demurrer was sustained without leave to amend, an order of dismissal was filed, and plaintiff appeals. Plaintiff, a licensed real estat...
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27 Cal.App.3d 246 (1972) 103 Cal. Rptr. 536 THE PEOPLE, Plaintiff and Respondent, v. CLARENCE RAY JACOBS, Defendant and Appellant. Docket No. 9594. Court of Appeals of California, First District, Division One. August 16, 1972. *252 COUNSEL James A. Hunt, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Robert R. Granucci and Karl J. Uebel...
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Opinion This litigation was precipitated by a public district’s failure to obtain the statutory bond required by chapter 3 of division 5 of title 1, commencing with section 4200 of the Government Code; 1 the chapter was enacted by the Legislature for the protection of laborers and materialmen (Powers Regulator Co. v. Seaboard Surety Co., 204 Cal.App.2d 338 [22 Cal.Rptr. 373]) and requires...
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OPINION Plaintiff appeals from an order of dismissal (judgment, Code Civ. Proc., § 581d) entered following an order sustaining a general demurrer to plaintiff's complaint without leave to amend. The demurrer was *Page 165 sustained on the sole ground that the action was barred by the statute of limitations.1 The complaint was filed February 27, 1970, and contained four causes of action. In the fi...
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Opinion Plaintiff appeals from an order of dismissal (judgment, Code Civ. Proc., § 58Id) entered following an order sustaining a general demurrer to plaintiff’s complaint without leave to amend. The demurrer was *165sustained on the sole ground that the action was barred by the statute of limitations.1 The complaint was filed February 27, 1970, and contained four causes of action. In the first, pl...
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Opinion Richard Thomas petitions for a writ of habeas corpus to challenge revocation of probation following suspension of execution of sentence. *33 Petitioner, currently confined in San Francisco County jail, was twice convicted in 1971 of a misdemeanor (Pen. Code, § § 488, 459). Each time he was sentenced by the San Francisco Municipal Court to county jail (120 days and 6 months, respecti...
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*147 Opinion Plaintiff Jeffrey Ault, * appeals from an order quashing service of summons made on a foreign corporation by serving the corporation’s managing agent at the corporation’s office in New Jersey. 1 The question presented is whether the trial court erred in determining there was no basis for jurisdiction over the defendant foreign corporation. We ...
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Opinion This action was brought by Phill Silver as a taxpayer of the County of Los Angeles to recover on behalf of the county the taxes on certain business personal property which allegedly should have been paid for the years 1961 and 1962. The defendants include Philip E. Watson, the county assessor, The Travelers Indemnity Company, who gave bond *908 for the assessor’s fait...
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Opinion Defendant appeals from conviction after jury trial in the Superior Court .of Alameda County of violation of section 11530, and two counts of violation of section 11910, Health and Safety Code. *75 Questions Presented 1. Did the officers comply with the "knock and notice” requirements of Penal Code section 1531? 2. Should the identity of the informer have been disclosed? 3. D...
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Opinion Statement of the Case Appellants commenced this proceeding by filing a petition for a writ of mandate to compel the respondents, City of Redondo Beach, the mayor, the five councilmen of the City of Redondo Beach, the city manager and the director of property management “to immediately proceed and commence, before a board of arbitrators or the Harbor Review Board, to ascertain and de...
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Opinion This is an appeal by the plaintiff from a summary judgment entered in favor of the defendant in an action, commenced in the California Superior Court, to recover damages under the Jones Act (46 U.S.C.A. § 688) and the general maritime law for personal injuries sustained by plaintiff while he was a seaman in the employ of defendant. In the complaint, filed July 26, 1968, it wa...
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Opinion The real party in interest is the named insured under a policy of automobile insurance issued by petitioner. Pursuant to the require *347 ments of section 11580.2 of the Insurance Code, that policy contained an uninsured motorist provision, which provided for arbitration of disputes under that clause. Differing slightly from the statutory form, 1 the policy...
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Opinion The principal question here is whether defendant husband (herein called appellant) who dominated the management and directorship of Elk Cove Lumber Co., Inc., can be held liable to the corporation in this shareholders’ derivative action for the timing and manner of repayment by Elk of sums legally owing to Thrasher upon demand notes properly executed by the corporation. We ca...
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Opinion Appellant appeals from judgment of conviction, after jury trial, of violation of Penal Code section 12310 (explosion of a destructive device causing great bodily injury). Questions Presented 1. Is Penal Code section 12310 unconstitutional because the term “great bodily injury” fails to- establish a clearly defined standard of guilt? *57 2. Does the evidence support a finding o...
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Opinion On November 2, 1971, the District Attorney of Santa Barbara County filed a 22-count indictment in the superior court, charging defendant with 11 violations of section 72 of the Penal Code and 11 violations of section 14107 of the Welfare and Institutions Code. Defendant demurred and filed a motion to quash the indictment. After the matter was submitted for a ruling, the district attorne...
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Opinion The Attorney General of the State of California and the District Attorney of the County of Ventura, acting in the name of the People of the State of California, petitioned the Superior Court of the County of Ventura seeking a writ of mandate to compel the Municipal Court of the Ventura Judicial District to vacate certain of its orders and either refrain from further proceedings in...
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OPINION This is an appeal from an order which denied a motion to confirm the report of the probate commissioner, overruled objections to an *Page 314 inheritance tax report and fixed the amount of inheritance tax due the State of California. The appellant, Patricia Harrington, is the executrix of the will of Mary Porter Weaver and is also a legatee of the decedent. The appeal is taken in her capa...
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Opinion This is an appeal from an order which denied a motion to confirm the report of the probate commissioner, overruled objections to an *314inheritance tax report and fixed the amount of inheritance tax due the State of California. The appellant, Patricia Harrington, is the executrix of the will of Mary Porter Weaver and is also a legatee of the decedent. The appeal is taken in her capacity a...
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Opinion Defendant was convicted of two counts of violation of Health and Safety Code section 11501 and sentenced to state prison for the terms prescribed by law, the sentences to run concurrently. This appeal followed. We adopt the factual statement set forth in defendant’s brief, and there is no need for restating the facts here as the sole issue on appeal relates to the instruction as to bu...
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Opinion Oscar Columbus Ward was convicted of the first degree murder of Anthony Frank Ungaro. Defendant raises on this appeal contentions (1) that his arrest and the ensuing search were unlawful; (2) that it was prejudicial error for the court to give a “lying in wait” instruction to the jury, and (3) that the court abused its discretion in refusing a month’s continuance of the trial and substi...
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Opinion Since they turn on the same issue—namely the interpretation of section 781 of the Welfare and Institutions Code in the light of chapter 1748, California Statutes 1971—we deal with all three cases in this one opinion. 1 *294 Petitioners Scott A. and Ricky C. were the subjects of . juvenile court proceedings in which they were made wards of the court; petitioner Robert J. was arrest...
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Opinion By California statute, release of an agent before trial does not discharge his principal from tort liability, even though the sole basis alleged for recovery from the principal is his vicarious liability for the acts of his agent. Plaintiffs’ complaint alleges that defendants Filmland Corp. and two individuals who dominated it made knowingly false representations to plaintiffs to indu...
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Opinion Petitioners seek mandate to compel respondent superior court to annul its judgment and a peremptory writ of mandate issued thereon, or, in the alternative, prohibition to prevent the enforcement of its judg*864ment. The respondent court’s judgment restrained petitioner City of Inglewood-Los Angeles County Civic Center Authority (Authority) from executing or performing a contract awarded t...
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7 Cal.3d 844 (1972) 500 P.2d 610 103 Cal. Rptr. 698 THE PEOPLE, Plaintiff and Respondent, v. WARREN O. SALING, Defendant and Appellant. Docket No. Crim. 15222. Supreme Court of California. In Bank. September 5, 1972. *846 COUNSEL Michael Korn, under appointment by the Supreme Court, for Defendant and Appellant. Evelle J. Younger, Attorney General, William E. James, Assistant Attorney General, and...
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7 Cal.3d 832 (1972) 500 P.2d 621 103 Cal. Rptr. 709 SOUTHERN CALIFORNIA EDISON COMPANY, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; RICHARD CARLSON et al., Real Parties in Interest. Docket No. L.A. 30000. Supreme Court of California. In Bank. August 30, 1972. *835 COUNSEL Rollin Woodbury, Chase, Rotchford, Drukker & Bogust, David Clark and William C. Falkenhainer for ...
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Opinion In July 1962, Jim Holladay and Robert Holladay, were tenants in common of some property in San Diego. They granted Irvin Kahn, later president and majority shareholder of plaintiff Penasquitos, Inc., a 99-year lease and option to buy the property. The minimum rent was $1,800 yearly per acre for the 5.86 net usable acres, plus 8 percent of the lessee’s gross yearly revenue from improveme...
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Opinion This is an appeal by defendant from a judgment entered pursuant to a jury verdict finding him guilty of violation of two counts of section 11503 of the Health and Safety Code. 1 Section 11503 makes it unlawful to offer to sell a narcotic and to deliver some substance in lieu of a narcotic. 2 The evidence adduced at the trial disclosed that defendant on two occasions sold five caps...
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Opinion Defendants MacDonald, Tender, and Williams filed demurrers to a multicount indictment and motions to dismiss the indictment upon the theory that their constitutional rights to a speedy trial (U.S. Const., Amend. VI; Klopfer v. North Carolina (1967) 386 U.S. 213 [18 L.Ed.2d 1, 87 S.Ct. 988]) were violated by the failure of the California-authorities to press immediately for their extraditio...
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Opinion This appeal is taken by the wife from an interlocutory judgment of dissolution of marriage. The husband, respondent herein, petitioned for a dissolution of the marriage pursuant to Civil Code section 4506, subdivision (1), and by her response to' the petition the wife sought a legal separation. The parties, both of whom, are medical doctors, were married on April 19, 1941. They separa...
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Opinion These are appeals by codefendants from judgments convicting them of possession of amphetamine in violation of Health and Safety Code section 11910. The judgments were entered on pleas of guilty after denial of appellants’ motion to suppress evidence pursuant to Penal Code section 1538.5. We affirm the judgments. On July 21, 1971, a magistrate of the Los Angeles Judicial District issue...
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Opinion Defendant was charged in an amended information with the crime of exposing his private parts in public, in violation of Penal Code section 314, subdivision 1. The amended information also alleged three prior convictions of violating section 314, subdivision 1 of the Penal Code, thus making his alleged crime a felony. Defendant, out of the presence of the jury, admitted the three prior...
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Opinion Plaintiffs James W. McMaster and Alice M. McMaster appeal from a judgment of dismissal entered after general demurrers of City of Santa Rosa (City) and Francis Realty, Inc. (respondent) to the second amended complaint were sustained and plaintiffs failed to further amend. The crucial and ultimate issue presented in this appeal involves the concept of procedural due process in...
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Opinion This is an appeal by the People from an order of the superior court directing that defendant “be released pursuant to a writ of habeas corpus” unless he is granted a new trial on the charge of which he was convicted in 1960. The ground of the superior court’s decision was that in defendant’s 1960 trial a confession was received in evidence in violation of the federal constitutional prin...
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Opinion This appeal is from a judgment entered in several actions consolidated for trial. John Joseph Dillon, Antonino Minutoli, Mary E. *299 Cassidy and Eugene F. Snow were the original plaintiffs in action No. 283455. By stipulation filed March 3, 1969, the parties plaintiff were declared to be Dillon, Minutoli, Snow, Richard F. Cassidy as administrator of Mary E. Cassidy, ...
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Opinion In these consolidated appeals, plaintiffs, Arnold, Hench and Scheetz, appeal from that portion of the judgment denying recovery in their action against the individual defendants on grounds of alter ego. 1 Arnold, Hench and Scheetz contend that the evidence does not support the trial court’s finding of no liability, and that in any event, the individual defe...
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Opinion The primary issue posed by this proceeding concerns the right of a family member to be compensated for personal services rendered at home in caring for an injured employee. In 1947, while employed by respondent Standard Oil Company of California (Standard), petitioner’s husband, Edward N. Henson, suffered a severe industrial injury which necessitated the amputation of his right leg at...
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*466 Opinion A writ of review was issued by this court for the purpose of reviewing an Opinion and Decision After Reconsideration of respondent Workmen’s Compensation Appeals Board (hereinafter referred to as the “Board”), made on October 15, 1971, which decision awarded petitioner David L. Zozaya a permanent disability indemnity based on a permanent disability rating of 12 percent. It is u...
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Opinion This is an appeal from a judgment of conviction of one count of first degree murder in violation of Penal Code section 187, and one count of assault with a deadly weapon with intent to commit murder in violation of Penal Code section 217. We affirm the judgment. Appellant had been married to Anna Goldbach for about 15 years. Near Christmas in 1970, appellant threatened to kil...
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Opinion This is an appeal from denials of motions for leave to file a complaint in intervention in each of the subject actions. We affirm the orders of the trial court. Appellant, Robert Vener, is the owner of 90 percent of the issued and *548 outstanding shares of Continental Vinyl Products Corporation. Continental’s principal business was the manufacture and sale of a ...
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Opinion The mayor, councilmen and clerk of the City of San Diego appeal a judgment mandating the City to equalize its council-manic districts according to population, on the ground the City Charter violates the equal protection clause (U.S. Const., Amend. XIV). The San Diego City Charter provides for eight councilmanic districts as nearly equal in registered voter population as practicable, a...
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Opinion Plaintiffs appeal from a judgment dismissing their action for damages and declaratory relief based on an order sustaining defendant’s general and special demurrers to their second amended complaint without leave to amend. 1 Plaintiffs contend the order sustaining defendant’s demurrers was error. Determinative of the appeal is our conclusion the order sustaining the gene...
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Opinion In December 1971 the state Department of Social Welfare (hereinafter, “DSW”), through its Director (hereinafter, “the Director”), inaugurated the Earnings Clearance System (hereinafter, “System”), a computerized method for checking earnings reported to county welfare departments by California recipients of Aid to Families with Dependent Children (hereinafter, “AFDC”). 1 ...
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*498 Opinion Action for declaratory relief by Irving Brecher against Jackie Gleason to determine their respective rights in the reuse of “The Life of Riley” television films produced by Brecher and starring Gleason, a series originally telecast in 1949 and 1950. The trial court declared that Brecher had the right to reuse the films without further compensation to Gleason, and Gle...
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*158 Opinion A single issue, but one of first impression, is presented by this appeal from a portion of an order settling an executor’s account and report. The Facts Curt R. Reichel died on or about April 11, 1969. The devisees and legatees named in his will are his wife (appellant herein) and his daughter. On June 16, 1970 several specific legacies including (1) $1...
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Opinion On August 28, 1967, following due notice and hearing, plaintiff was appointed conservator of the person and estate of Betty E. Trent (conservatee), letters of conservatorship having been issued to her on September 7, 1967; three days later (September 10), no consideration having been paid therefor, the conservatee conveyed certain real property to de *529 fendant Tren...
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Opinion Henry Paul Alvarado, who was convicted in 1962 in San Diego County of rape by force (Pen. Code, § 261, subd. 3), and kidnaping for the purpose of robbery (Pen. Code, § 209), petitions for writ of habeas corpus for the purpose of obtaining relief from the sentence on the latter charge, life imprisonment without possibility of parole. Because he is confined in Solano County at the Califom...
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7 Cal.3d 930 (1972) 500 P.2d 873 103 Cal. Rptr. 849 In re ROBERT CHARLES JORDAN, JR., on Habeas Corpus. In re EUGENE GRADY on Habeas Corpus. Docket Nos. Crim. 15734, 15755. Supreme Court of California. In Bank. September 15, 1972. *932 COUNSEL Alice Daniel, William Bennett Turner and Oscar Williams for Petitioner in No. 15734. Paul N. Halvonik, Charles C. Marson, Hillel Chodos, A.L. Wirin, Fred O...
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7 Cal.3d 889 (1972) 500 P.2d 880 103 Cal. Rptr. 856 KIM CAPELOUTO, a Minor, etc., et al., Plaintiffs and Appellants, v. KAISER FOUNDATION HOSPITALS et al., Defendants and Respondents. Docket No. L.A. 29972. Supreme Court of California. In Bank. September 11, 1972. *890 COUNSEL Shulman & Shulman and Adley M. Shulman for Plaintiffs and Appellants. Robert E. Cartwright, Edward I. Pollock, Theodo...
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7 Cal.3d 926 (1972) 500 P.2d 887 103 Cal. Rptr. 863 VIRGINIA VILLA et al., Petitioners, v. JAMES M. HALL, as Secretary, etc., et al., Respondents. Docket No. Sac. 7907. Supreme Court of California. In Bank. September 14, 1972. *927 COUNSEL Ralph Santiago Abascal, Jay-Allen Eisen, Valerie Vanaman, Daniel S. Brunner and Steven J. Cole for Petitioners. Evelle J. Younger, Attorney General, Elizabeth ...
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*878Opinion We must adjudicate another case involving ambiguous, provisions in a certificate of insurance issued pursuant to a group insurance policy. On countless occasions we have inveighed against the careless draftsmanship of documents of insurance and have decried the evil social consequences that flow from lack of clarity. (E.g., Paramount Properties Co. v. Transamerica Title Ins. Co. (1970...
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27 Cal.App.3d 404 (1972) 103 Cal. Rptr. 874 THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; RAYMOND MARCIL, Real Party in Interest. Docket No. 30840. Court of Appeals of California, First District, Division One. August 24, 1972. *405 COUNSEL Louis P. Bergna, District Attorney, and Ulysses C. Beasley, Deputy District Attorney, for Petitioner. No appearance for Resp...
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Opinion This is a People’s appeal pursuant to section 1506 of the Penal Code from an order vacating a 1968 conviction on habeas corpus and permitting the withdrawal of a guilty plea. *520Facts In the summer and early fall of 1967, defendant1 allegedly committed 10 felonies. Two separate informations were consolidated for trial. The only counts with which we are concerned are counts TV, V, VIII and...
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7 Cal.3d 899 (1972) 500 P.2d 1097 103 Cal. Rptr. 897 THE PEOPLE, Plaintiff and Appellant, v. LLOYD GEORGE McKINNON et al., Defendants and Respondents. Docket No. Crim. 15379. Supreme Court of California. In Bank. September 13, 1972. *902 COUNSEL Edwin L. Miller, Jr., and James Don Keller, District Attorneys, Richard H. Bein and Terry J. Knoepp, Deputy District Attorneys, for Plaintiff and Appella...
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Opinion This is a proceeding to review a recommendation of the Disciplinary Board of the State Bar of California that petitioner be suspended from the practice of law for a period of one month. Facts: Petitioner, who was admitted to practice in 1964 and is now 33 years old, has lived in Fresno all his life. His grandmother died in 1955, leaving a considerable estate. Substantial family problems e...
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7 Cal. 3d 988 (1972) 500 P.2d 1119 103 Cal. Rptr. 919 BERNARD ORPUSTAN, Plaintiff and Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Respondent. Docket No. S.F. 22930. Supreme Court of California. In Bank. September 20, 1972. *990 COUNSEL Ollie Marie-Victoire for Plaintiff and Appellant. Bledsoe, Smith, Cathcart, Johnson & Rogers, Robert A. Seligson and Lawrence E...
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