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All Reporters → cal-rptr → Volume 112

Opinions in cal-rptr Volume 112

Opinion A jury found defendant guilty of the first degree murder (Pen. Code, §§ 187, 189) of Officer Richard Klass and the attempted murder (Pen. Code, §§ 664, 187) of Officer James Van Pelt. The court fixed the punishment for the murder at life imprisonment. In this appeal defendant contends that the evidence is insufficient to sustain the. verdict of first degree murder and that the trial court...
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Opinion Plaintiff and appellant Home Federal Savings and Loan Association of San Diego (Home Federal) appeals from a judgment of dismissal following the sustaining of demurrers without leave to amend to causes of action 63 through 78 of the third amended complaint. Facts 1 From August 20, 1963, to May 7, 1964, respondent, James Sullivan 2 was the owner, develo...
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37 Cal.App.3d 35 (1974) 112 Cal. Rptr. 27 CENTINELA VALLEY SECONDARY TEACHERS ASSOCIATION et al., Plaintiffs and Appellants, v. CENTINELA VALLEY UNION HIGH SCHOOL DISTRICT et al., Defendants and Respondents. Docket No. 41799. Court of Appeals of California, Second District, Division Two. January 30, 1974. *37 COUNSEL Trygstad & Odell and Lawrence B. Trygstad for Plaintiffs and Appellants. Joh...
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Opinion The matter at bench is an appeal from a judgment of conviction of sale of heroin (Health & Saf. Code, § 11501, now Health & Saf. Code, § 11352), two counts of possession of heroin for sale (Health & Saf. Code, § 11500.5, now Health & Saf. Code, § 11351), possession for sale of cocaine (Health & Saf. Code, § 11500.5, now Health & Saf. Code, § 11351), and possession of marijuana (He...
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36 Cal.App.3d 909 (1974) 112 Cal. Rptr. 50 Estate of CLARA W. KRUSE, Deceased. HOUSTON I. FLOURNOY, as State Controller, Petitioner and Appellant, v. SECURITY PACIFIC NATIONAL BANK, as Trustee, etc., Claimant and Respondent. Docket No. 40368. Court of Appeals of California, Second District, Division Five. January 23, 1974. *911 COUNSEL Myron Siedorf, Walter H. Miller and Martin Moses for Petition...
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Opinion This is an inheritance tax case. The appellant is the State Controller, Houston I. Flournoy (Controller). The respondent is the Security Pacific National Bank as the trustee of the Kruse estate (Trustee). Controller appeals from a judgment (order) of the trial court modifying an earlier order fixing the inheritance tax and directing payment of a tax refund to the trustee. We affirm. *912F...
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Opinion Petitioners, the Pasadena City Fire Fighters Association and the Pasadena Police Officers Association, sought a peremptory writ of mandate to compel the respondents, the Board of Directors of the City of Pasadena, and the Pasadena City Manager, to establish a personnel system based upon merit for city employees and further, to enjoin the respondents from conducting a particular examinat...
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Opinion Plaintiff Michael Lee Mahoney who was injured when struck by a motorcycle operated by defendant brought an action for personal injury. 1 Plaintiff appeals from a judgment for defendant entered following a trial by jury. Plaintiff’s Contentions Plaintiff’s attack on the judgment is grounded on the alleged error of the trial court in (1) refusing to instruct the...
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36 Cal.App.3d 774 (1974) 112 Cal. Rptr. 66 HILBERTO FERDIN, Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. 33474. Court of Appeals of California, First District, Division Four. January 9, 1974. *777 COUNSEL Mintz, Giller, Himmelman & Mintz and James Giller for Petitioner. No appearance for Respondent. Evelle J. Younger, Attorney...
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Opinion This is an appeal by plaintiffs from an order granting the motions of several of the defendants to quash service of summons. On March 7, 1972, plaintiffs commenced a class action seeking damages, an accounting and injunctive relief, for unfair competition and unjust enrichment. Named as defendants were: Arthur Leeds, Daniel Gottlieb and Paul Locke, as individuals and as copar...
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Opinion This is an appeal from a judgment denying a peremptory writ of mandate which would have commanded respondent Board of Medical Examiners to set aside its decision revoking the license of appellant Jordan Packer to practice psychology. On April 28, 1972, Packer filed a verified petition for writ of mandate in the superior court. (Code Civ. Proc., § 1094.5.) The petition alleged...
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Opinion Upon petitioner’s application to this court for a writ of habeas corpus, we issued an order to show cause on September 17, 1973, and informed the parties that the petition had been treated by us as a motion for an order permitting petitioner to file a late notice of appeal. (See People v. Serrano (1973) 33 Cal.App.3d 331 [109 Cal.Rptr. 30].) Thereafter, in ...
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Opinion This appeal from judgments imposing state prison sentences after revocation of probation involves the issue of extension of the doctrines of In re Tahl, 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449], and In re Mosley, 1 Cal.3d 913 [83 Cal.Rptr. 809, 464 P.2d 473], to probation revocation hearings. We conclude that the rule of those cases does not apply in proceedings to revoke proba...
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35 Cal. App. 3d 18 (1973) 112 Cal. Rptr. 98 THE PEOPLE, Plaintiff and Respondent, v. PEDRO L. DOMINGUEZ, Defendant and Appellant. Docket No. 23205. Court of Appeals of California, Second District, Division One. October 31, 1973. *19 COUNSEL Gilbert T. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chief Assi...
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Opinion This is an appeal by the People from an order granting defendants’ motion to set aside the information (Pen. Code, § 995) on grounds that the preliminary hearing magistrate abused his discretion by denying a continuance to permit defendants to look for and produce the informer-participant to substantiate their entrapment defense. The appeal raises a question of first impression as to wh...
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Opinion The County of Alameda (County) and City of Oakland (City) appeal from a judgment concluding that the taxpayer, respondent, Sea-Land Service, Inc. (Sea-Land), did not acquire a taxable possessory interest under its “Preferential Assignment Agreement,” and directing the refund of 1967-68 personal property taxes levied and collected by the City for the County. As we have concluded that the...
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Opinion History The chronology of events which led up to and precipitated the litigation at bench is as follows: On June 5, 1945, Laura A. Jones (hereinafter Jones), a resident of Los Angeles, who had previously (in 1936) opened a savings account with defendant-respondent State Mutual Savings and Loan Association (hereinafter Savings and Loan Assoc.), received, along with her new passbook, a docu...
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Opinion Plaintiffs Thomas G. Banville and Margaret J. Banville brought an action for rescission of a real estate sale and for damages for negligence, fraud, and misrepresentation. After a nonjury trial, judgment was entered as follows: (1) For plaintiffs and against defendants William D. Schmidt (Schmidt) and Tom Kieman Realtors, Inc. (Kieman Company) in the amount of $12,360, and ag...
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Opinion — Marjorie A. Petherbridge (“Plaintiff” and “Appellant”) is a borrower of Prudential Savings and Loan Association (“Prudential”). The loan is secured by a deed of trust on real property located in the County of Orange. Under the provisions of her trust deed, plaintiff is required to pay monthly, in addition to principal and interest, a sum estimated by Prudential at 1/12 of the co...
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36 Cal. App. 3d 811 (1974) 112 Cal. Rptr. 157 ROLAND W. WOOD, as Superintendent, etc., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; DOW J. BYERS et al., Real Parties in Interest. Docket No. 12881. Court of Appeals of California, Fourth District, Division One. January 11, 1974. *812 COUNSEL Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chief Assistant Attorney Gen...
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Opinion Appellant, California Unemployment Insurance Appeals Board (Board) appeals from a judgment granting respondent, Madeleine De Somov, a writ of mandamus. *847Interpretation of the terms of “sole” and “major” in section 1264 of the Unemployment Insurance Code is the sole issue. Respondent at the time of her marriage in June of 1970 to her current husband had two children, a 15-year-old boy an...
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Opinion This action was filed by plaintiff as an elector of San Diego to obtain a declaration that the portion of the.city charter which fixes the salary of councilmen at $5,000 per annum (portion of art. Ill, § 12) is unconstitutional under the Fourteenth Amendment of the United States Constitution and under article I, sections 21 and 24 of the California Constitution. Plaintiff’s theory is that ...
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Opinion Plaintiffs appeal from the judgment of the trial court which sustained defendant’s general and special demurrers to plaintiffs’ second amended complaint without leave to amend. In brief, the facts alleged in plaintiffs’ second amended complaint are as follows: On November 6, 1970, defendant Peoples Investment & Loan Association (hereinafter, Peoples) loaned to plaintiffs the ...
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*147 Opinion This matter presents an unusual question and circumstances that warrant the treatment of a motion to augment the record as a petition for a writ of error coram vobis. The facts are as follows: On April 10, 1972, Leon Rollins filed a timely notice of appeal from the judgment in his actions 1 for the wrongful death of his late wife, Rosie Rollins. Mrs. Rollins died after the ...
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*1007 Opinion This is an appeal by defendant and cross-complainant (hereinafter “defendant”) from a judgment in favor of plantiffs and cross-defendants (hereinafter “plaintiffs”) in a declaratory relief action determining the rights of plaintiffs who are lessees of certain real property which had been acquired by defendant for future highway use. 1 The real property ...
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10 Cal.3d 764 (1974) 518 P.2d 1129 112 Cal. Rptr. 177 In re ERWIN M. WALKER on Habeas Corpus. Docket No. Crim. 16711. Supreme Court of California. In Bank. February 14, 1974. *770 COUNSEL Evelle J. Younger, Attorney General, Herbert L. Ashby and Edward A. Hinz, Jr., Chief Assistant Attorneys General, William E. James, Doris H. Maier and Edward P. O'Brien, Assistant Attorneys General, and Gloria F...
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Opinion In this case we discuss the responsibility of an employer and its group insurer toward employees entitled to coverage under group disability and life insurance programs negotiated by employee labor unions. Here, decedent J. T. Bass evidently waived coverage under a 1964 group plan offered by his employer, Ford Motor Company, despite the fact that such insurance was offered free of...
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10 Cal.3d 799 (1974) 518 P.2d 1151 112 Cal. Rptr. 199 Estate of SUSAN L. NUNN, Deceased. HOUSTON L. FLOURNOY, as State Controller, Petitioner and Appellant, v. BEVERLY HILLS NATIONAL BANK, as Executor, etc., Objector and Respondent. Docket No. L.A. 30109. Supreme Court of California. In Bank. February 20, 1974. *802 COUNSEL Myron Siedorf, Walter H. Miller and Edwin Rosenthal for Petitioner and Ap...
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Opinion The Controller of the State of California appeals from an order fixing the inheritance tax in the matter of the estate of Susan L. *803Nunn, deceased.1 The basic question presented is whether Susan at the time of her death possessed a general power of appointment over the assets of a testamentary trust provided for by her predeceased husband, George Lee Nunn. We conclude that she possessed...
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Opinion By his petition for writ of review, the petitioner, an applicant for permanent disability benefits, following denial of his petition for reconsideration, seeks review of an award made by respondent board in an opinion and order granting reconsideration to respondent employer *83 and its decision after reconsideration. Applicant claims benefits for a hearing loss allegedly suffered dur...
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Opinion This is an appeal by defendants from an order denying their motion to vacate the clerk’s entry of default and the default judgment. The record shows that the instant action was commenced on June 29, *139 1971, when plaintiffs, eight foreign investors, filed suit 'against defendant Robert Pollock and eight interlocking companies through which Pollock was doing bus...
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*220 Opinion On December 21, 1967, State Compensation Insurance Fund filed an action in the Municipal Court of Compton Judicial District against Clevester Williams, Jr., and various fictitiously named defendants seeking $80 plus attorney’s fees and costs as damages under Labor Code sections 3850-3864. The complaint alleged that plaintiff was the workmen’s compensation insurance c...
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Opinion Petitioner, James N. Ferreira, seeks review and annulment of an order of the Workmen’s Compensation Appeals Board (“appeals board”) denying reconsideration of the decision and finding of the referee that a left inguinal hernia sustained on August 8, 1966, while lifting a battery out of his pickup truck at home is noncompensable. In 1961 petitioner sustained a left inguinal he...
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*124 Opinion This is a malpractice action by a Garden Grove patient against a Garden Grove dentist. During the course of a jury trial, the patient’s attorney called two Beverly Hills dentists: one a specialist; the other a general practitioner. The trial court ruled that neither was competent to express an opinion on the ultimate issue as to whether the defendant was negligent in...
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Opinion Defendant was charged by information with two counts of forgery. (Pen. Code, § 470.) He pleaded not guilty. Pursuant to stipulation, the cause was submitted on the preliminary hearing transcript. The court found defendant guilty of count I. Proceedings were suspended. Defendant was placed on three years’ probation on various terms and conditions. He appeals from the judgment (order grantin...
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*815 Opinion Frank Hill, who is charged by information with attempted burglary, seeks mandamus to compel respondent court to issue an order directing the People to permit him to examine and copy “the felony conviction record, and the arrest and detention records of Harry Sillence.” The public defender who represents petitioner made a pretrial motion for discovery of the foregoing records. A...
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Opinion Defendant was convicted on two counts of receiving stolen property (§ 496, Pen. Code); on August 7, 1967, proceedings were suspended and he was placed on probation for five years on certain conditons. On October 3, 1972, defendant appeared before Judge Mullendore for a violation of probation which consisted of various acts resulting in two criminal cases in which he was charged wi...
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Opinion Lawrence Stewart was a probationary teacher employed by the San Mateo Junior College District. As permitted by Education Code section 13443 he was, on or before March 15, 1971, given notice that he would not be employed by the district for the ensuing school year. Stewart timely requested a hearing as provided by section 13443, subdivision (b). Thereafter a hearing was held and proceedi...
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Opinion This is an appeal by Los Angeles County Flood Control District, defendant, to a quiet title action brought by Bert H. Paul, Jr., as trustee for Inner Harbor Land Company. A judgment quieting title to plaintiff to a subsurface property was granted by the trial court. Facts The trial court determined this case based on a stipulated set of facts which, in substance, are as ...
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Opinion In this case there are cross-appeals. Plaintiff Lester B. Trout appeals from an order granting him attorney fees because the amount is less than his attorney requested. The appeal of defendant Robert B. Carle *339 son, Director of the California State Department of Social Welfare (the Director), is based upon his claim no fees should have been allowed. Trout, in ...
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Opinion On November 14, 1973, petitioner filed a petition for writ of prohibition alleging, in general, that the provisions of section 1381 of the Penal Code were not complied with. On November 29, 1973, we granted an order to show cause. Facts On December 15, 1970, petitioner was convicted of forgery (Pen. Code, § 470) in San Joaquin County. On May 24, 1971, petitioner was sentenced to sta...
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Opinion The People have appealed from the dismissal of an action charging a violation of Penal Code section 288a after the sustaining of a demurrer to the information, without leave to amend, upon the ground that the facts stated do not constitute a public offense. The act with which defendants were charged occurred in a public restroom at 3:40 a.m. within the view of a San Diego pol...
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Opinion The condemner and the condemnee have each appealed from a judgment in condemnation after a trial before the court without a jury. The action was commenced by the State of California on behalf of the Department of Water Resources to acquire a right of way for the California Aqueduct and on behalf of the Department of Public Works to acquire a right of way for the construction of the In...
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Opinion Facts On June 2, 1958, Nicholas S. Alexander (Nicholas) died intestate in Los Angeles County, California. On June 27, 1958, Theodore M. Alexander (Theodore) was issued letters of administration in decedent’s estate in the superior court for said county. In the petition for letters of administration signed and filed by Theodore, he listed himself as “adult son.” *310 ...
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Opinion The sole issue presented on this consolidated appeal is the constitutionality of Military and Veterans Code sections 1035, 1035.05, 1035.1, 1035.3 and 1038, hereafter sometimes called the “statutes.” (Specific statutory references, unless otherwise stated, will be to the Military and Veterans Code.) There is a Veterans’ Home of California (§ 1011) which is maintained for certain aged and ...
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Opinion Defendant appeals from the judgment upon his conviction by the trial court of voluntary manslaughter (Pen. Code, § 192, subd. 1) and second degree murder (Pen. Code, § 187). Although the appeal is from the entire judgment, the only issue on appeal is whether the manslaughter conviction for the killing of defendant’s wife is a felony which can sustain the second degree conviction for the...
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Opinion Defendant County of Butte appeals from the judgment of the trial court which held among other things that the formula used by defendant in assessing timberlands of plaintiff Georgia-Pacific Corporation, now Louisiana-Pacific Corporation, was illegal and which directed a new hearing to be conducted by defendant’s Assessment Appeals Board. Plaintiff, in turn, has filed a cross-appea...
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Opinion The issue is whether California may properly exercise personal jurisdiction over petitioner Watson’s Quality Turkey Products, Inc., a New Jersey corporation (“Watson”). The trial court denied Watson’s motion to quash service of summons by real party in interest Manor Poultry Company (“Manor”). We granted an alternative writ of mandate. Facts Real party Manor, a California corporatio...
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Opinion This is an appeal by the defendant Pacific Employers Insurance Company from a judgment holding it liable to' the plaintiff American Air Equipment, Inc., on a so-called Vehicle Dealer Bond, furnished pursuant to section 11710 of the Vehicle Code. The penal sum of the bond was the statutory $5,000. The judgment in favor of plaintiff and against the defendant bonding company was for $4,575.1 ...
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*432 Opinion The question presented on this appeal (apparently as a matter of first impression) is whether Code of Civil Procedure section 580b 1 bars a deficiency judgment, against a borrower and in favor of a lender, after judicial foreclosure and sale of real property under a deed of trust executed by the borrower to secure payment of a “construction loan” (1) which...
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Opinion The City of Orange brought this action to obtain an injunction compelling the State of California and Pete C. Valenti, Donald A. Bailey, Alex. B. DeFiore, a joint venture (hereinafter “VDB”), to comply with certain local ordinances and the California Environmental Quality Act. VDB owns an office building at 1524 East Mayfair Avenue in the City of Orange which it leased to the state fo...
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Opinion Defendants, the state Department of Corporations and its commissioner (hereinafter, collectively, “the Department”), appeal from a declaratory judgment that a diamond sales promotional plan which was advertised and successfully used by plaintiff Hamilton Jewelers (herein *332 after, “Hamilton”) did not constitute the offer or sale of a “security” as defined in section...
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*457 Opinion Defendant was charged with murder, in violation of section 187 of the Penal Code. After a trial by jury, he was found guilty of voluntary manslaughter, a lesser and necessarily included offense. He was sentenced to state prison; he has appealed; we affirm. The evidence for the People, if properly admitted and believed, amply supports the jury’s verdict. Accordingly, we summariz...
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Opinion Defendants (members of the Leone family doing business as “Sherbo Distributing Company”) appeal from a judgment establishing their indebtedness to respondent The Bank of California National Association on three promissory notes executed by Anthony J. Leone, Sr. Two of the notes were executed in September 1968 and the third in October 1969. The proceeds of the first two notes, each in ...
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Opinion Plaintiff appeals from a partially adverse judgment in an action brought to foreclose a deed of trust securing a $10,000 promissory note. *215 The trial court held the underlying transaction was governed by, and in violation of, the Unruh Act (Civ. Code, § 1801 et seq.). As a consequence it awarded plaintiff judgment in the amount of $10,000, but disallowed the lien and all interest. ...
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Opinion In this action to rescind a 1945 property settlement agreement, the trial court concluded that, while decedent Elmer J. Boeseke committed fraud, the action by his former wife, Beatrice, is barred by the statute of limitations. Both sides appeal. Elmer and Beatrice married in 1925 and a daughter was born the following year. Although each entered marriage with substantial prope...
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*853 Opinion This is an appeal by husband from a portion of an interlocutory judgment of dissolution of marriage which determined the value of community assets. We granted a hearing upon the petition of respondent wife, supported by an implied invitation from the Court of Appeal, to ascertain the current viability of the rule of French v. French (1941) 17 Ca...
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Opinion Appellant Lonnie Jackson, found guilty by a jury of two counts of first degree robbery (Pen. Code, § 211a) and two counts of using a firearm during the commission of the robberies (Pen. Code, § 12022.5), appeals from the judgment entered pursuant to the verdict. At noon on September 8, 1972, a lone gunman who on two previous occasions in the company of a female companion had visited a...
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Opinion Plaintiff Anneliese Martinez appeals from an adverse judgment in her action against defendant, a stockbroker. She contended that defendant converted her property by selling shares of stock in Cutter Laboratories, Inc. (Cutter) represented by certificates in the name of plaintiff and her husband, Frank, and thereafter delivering all of the proceeds to him. In a non-jury trial the court fou...
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Opinion Plaintiff-Appellant Assistance, Inc. (Assistance) is the owner of the vessel Willis Shank. On October 5, 1967, but as of September 15, 1967, Assistance, as owner, entered into a bareboat charter agreement with Geophysical Aero-Marine Services, Inc. (GAMS). On September 15, 1967, GAMS entered into a time charter agreement with “Geotech, a Teledyne company.” The latter’s correct name is app...
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Opinion Plaintiff, Majestic Realty Co., appeals from a judgment of dismissal (see Code Civ. Proc., § 58Id), entered pursuant to Code of Civil Procedure section 581, subdivision 3, of its action against defendant, Pacific Lighting Corporation (PLC), following the sustaining without leave to amend of PLC’s general demurrer to plaintiff’s second amended complaint. Plaintiff contends that PLC’s genera...
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Property Damage Appeal Plaintiff is a corporation engaged in the rock, sand and gravel business. On April 25, 1966, a 1956 International truck owned by it was totally destroyed after a blowout of the right front tire. The tire that failed was a Seiberling truck tire which plaintiff had purchased on August 16,1965, from Bill Watson who did business as Bill’s Tire Service in Modesto. At the ...
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Opinion Samuel Borson appeals from a judgment ordering him to pay in a marital dissolution proceeding, pursuant to Civil Code sections 4370 and 4371, Block, Bulloch & Scully and Morris Singer, the former attorneys of his former wife, Sophia Borson, additional fees in the sum of $7,500 and additional litigation expenses in the sum of $1,027.40 together with interest. Appellant asks us...
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Opinion These two cases involve related problems concerning the procedures proper in cases of revocation of probation in the light of Morrissey v. Brewer (1972) 408 U.S. 471 [33 L.Ed.2d 484, 92 S.Ct. 2593], as construed in People v. Vickers (1972) 8 Cal.3d 451 [105 Cal.Rptr. 305, 503 P.2d 1313]. We have consolidated them for the purpose of this opinion. In each case, defendant had bee...
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*539 Opinion In an amended petition for a writ of mandate Donald A. Radesky (hereafter Radesky), a police officer for respondent City of Los Angeles (hereafter the City), sought to compel the payment to him of temporary disability compensation pursuant to section 4.177 of the Los Angeles City Administrative Code. The City interposed a demurrer to Radesky’s amended petition, ...
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37 Cal.App.3d 418 (1974) 112 Cal. Rptr. 450 KATHLEEN VAN DEVENTER HAMILTON, Petitioner, v. THE SUPERIOR COURT OF SAN MATEO COUNTY et al., Respondents; GERALD VAN DEVENTER, Real Party in Interest. Docket No. 34130. Court of Appeals of California, First District, Division One. February 21, 1974. *420 COUNSEL Schapiro & Thorn and Suzie S. Thorn for Petitioner. No appearance for Respondents. Sing...
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37 Cal. App. 3d 623 (1974) 112 Cal. Rptr. 457 SUZON KORNBLUM, Plaintiff and Appellant, v. NEWARK UNIFIED SCHOOL DISTRICT, Defendant and Respondent. Docket No. 31534. Court of Appeals of California, First District, Division Two. February 28, 1974. *624 COUNSEL White, Giambroni & Walters, Huovinen, White & Giambroni and Francis R. Giambroni for Plaintiff and Appellant. Richard J. Moore, Cou...
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Opinion Sears, Roebuck & Company, as real party in interest, appeals from a judgment of the superior court ordering a writ of mandate and requiring the California Unemployment Insurance Appeals Board to set aside its decision in an administrative proceeding entitled In the Matter of Jean C. Young, No. 71-7977. The decision of the board had, in turn, reversed the decision of its referee an...
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*556 Opinion An indictment was filed on October 29, 1969, charging defendant Tomy Isuki Hwamei, also known as Baltazar Garcia Estolas, with the murder of Pellegrino Chiari (count I); with the murder of Giosue Mariani (count II); armed robbery while armed with a deadly weapon (count III); kidnaping to commit robbery of Lydia Reynaga (count IV); kidnaping to commit robbery of Ramona Reynaga (co...
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Opinion On September 6, 1972, plaintiff and respondent, hereinafter referred to as plaintiff, filed a petition for writ of mandate against the Sacramento County Board of Education, its members individually, and Sacramento County Committee on School District Organiza *686 tion and its members individually, alleging that the seven trustee areas of the Sacramento County Board of Education did no...
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*679 Opinion On June 23 and July 18, 1972, two petitions were filed in the juvenile court alleging that defendant, Clarence B., came within the provisions of Welfare and Institutions Code section 602. The two petitions were consolidated and after a hearing, paragraphs II, IV, and VI of the second petition, alleging two violations of Penal Code section 261, subdivision 2 (rape) an...
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Opinion This appeal from an order granting the public defender’s petition for a writ of mandamus raises a question of first impression: whether the assertion of a conflict of interest with an unnamed client in another proceeding by an attorney is sufficient to permit his withdrawal from a case to which he has been appointed. Appellant maintains that the attorney should be required to make a sho...
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Opinion Petitioner is charged by information with possession of heroin for sale (Health & Saf. Code, § 11351). The information alleges that the offense occurred on or about July 26, 1973. Respondent superior court denied petitioner’s pretrial motion to compel disclosure of the identity of an informant described in the affidavit upon which a search warrant had issued for the search of...
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37 Cal. App. 3d 667 (1974) 112 Cal. Rptr. 502 SAN FRANCISCO STREET ARTISTS GUILD, et al., Plaintiffs and Appellants, v. DONALD SCOTT, as Chief of Police, etc., et al., Defendants and Respondents. Docket No. 32355. Court of Appeals of California, First District, Division Four. March 1, 1974. *669 COUNSEL Charles C. Marson, Paul N. Halvonik and Robert Kantor for Plaintiffs and Appellants. Thomas M....
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Opinion Originally defendant was charged with six counts. Ultimately count I (which had charged a violation of § 217 of the Pen. Code) was dismissed and the remaining counts were renumbered. After various ■ proceedings to determine defendant’s capacity to stand trial (Pen. Code, § 1368), he was found guilty by a jury on all five remaining counts, sane during the commission of the offenses charged ...
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10 Cal.3d 857 (1974) 519 P.2d 561 112 Cal. Rptr. 513 In re EDWARD MICHAEL YURKO on Habeas Corpus. Docket No. Crim. 16368. Supreme Court of California. In Bank. March 7, 1974. *859 COUNSEL Edward Michael Yurko, in pro. per., and Richard H. Levin, under appointment by the Supreme Court, for Petitioner. Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chief Assistant Attorney General, Doris...
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Opinion The People appeal from an order granting a petition for a writ of habeas corpus for the limited purpose of vacating and setting aside a sentence insofar as it adjudicated defendant an habitual criminal. The adjudication was based on defendant’s admission of the truth of allegations of three prior felony convictions. (Pen. Code, § 644, subd. (b).)1 *904In granting the petition the trial cou...
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Opinion On November 16, 1962, defendant was convicted of first degree murder and sentenced to death. On appeal, we affirmed the conviction of guilt, but reversed the penalty. (People v. Hillery (1965) 62 *899Cal.2d 692 [44 Cal.Rptr. 30, 401 P.2d 382].) The jury again fixed the penalty at death, and we affirmed. (People v. Hillery (1967) 65 Cal.2d 795 [56 Cal.Rptr. 280, 423 P.2d 208].) After the de...
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Opinion We review here a recommendation by the State Bar’s Disciplinary Board that petitioner Melvin Belli be suspended from the practice of law in the State of California for one year. Mr. Belli stands accused of wilful violations of rule 2, section a, of the Rules of Professional Conduct, which declares, in part, that “[a] member of the State Bar shall not solicit professional employment by adv...
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Opinion In this action for damages for medical malpractice, plaintiff appeals from a judgment of nonsuit entered in favor of defendant County of Contra Costa (County) and Glenn S. Skinner, M.D., and from a judgment entered on a jury verdict in favor of all the then remaining defendants. We discuss the appeals separately. I Appeal from Judgment of Nonsuit Viewing the evi...
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Opinion In this, case, we review the provisions of Penal Code section 1192.5 pertaining to the subject of plea bargaining. In the instant case, the trial court withdrew its prior approval of a negotiated plea bargain but failed to advise defendant of his statutory right to withdraw his guilty plea made in consideration of the rejected bargain (here, to be punished as a misdemeanant with a count...
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*777 Opinion Petitioners Rutherford, Strohbeen and Tremaine, nurses employed by the Bellflower Unified School District, sought to review an administrative decision (Code Civ. Proc., § 1094.5) by means of a writ of mandate directing the respondents, the five elected members of the Board of Trustees of the Bellflower Unified School District (hereinafter referred to as the Board), t...
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I dissent. The majority concludes, and I think correctly, that the case against the defendant was a strong one. Thus, even if the statements of the prosecutor and the single jury instruction are considered to be error, a point which I do not concede, the majority opinion needlessly erodes the harmless error rule. We have yet to reach the day in which a totally error-free record can be expected and...
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Opinion This is an appeal by the People and Lester J. Pope, Superintendent of the California Medical Facility (hereinafter jointly referred to as “appellants”) from an order made by the trial court in a habeas corpus proceeding permitting counsel for Roy Victor Olson and Charles Carter (hereinafter “petitioners”), inmates of the California Medical Fa *785 cility at Vacaville ...
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Opinion This is an appeal from a dismissal of appellant’s third cause of action on the ground that the court lacked jurisdiction to consider the action. In brief, respondent Adolph Coors Company (hereinafter, Coors) is a corporation organized and existing under the laws of the State of Colorado and is authorized and qualified to do business in the State of California. Coors manufactu...
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Opinion Plaintiff (wife) filed an action for divorce on May 4, 1965; summons and complaint therein were served on defendant (husband) on May 6,1965. 1 On May 14, 1965, a stipulation, executed by both parties and by counsel for plaintiff was filed. That stipulation, in addition to reciting agreement as to custody of children, temporary support and division of community property, contained a pr...
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Opinion Plaintiff Perry Scott appeals from an order of dismissal of his third amended complaint. The complaint sought damages for “defamation; interfering with a contractual relationship; and suffering and emotional distress” while plaintiff was City Manager of the City of Santa Monica. Prior to the dismissal, the court had sustained defendants’ demurrer on grounds of uncertainty and for ...
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Opinion This appeal involves an election contest arising from the election of a county supervisor in the Fifth Supervisorial District of Trinity *732 County at the general election held on November 7, 1972. There were three candidates, George Raymond Willburn, the plaintiff and respondent (hereinafter referred to as “contestant” or Willburn), Eugene Wixson, defendant and appe...
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37 Cal.App.3d 792 (1974) 112 Cal. Rptr. 626 RICHARD C. GREENBERG, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, ROYAL DRUG COMPANY, et al., Respondents. Docket No. 13286. Court of Appeals of California, Fourth District, Division Two. March 7, 1974. *793 COUNSEL Charles R. Metcalfe, Nicholas C. Byhower and Richard W. Petherbridge for Petitioner. Samuelsen, Bolson, Whitehead & Benes and ...
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Opinion Plaintiff, the widow of Eugene F. Ayer, appeals from a judgment of nonsuit entered in her action to recover damages for Ayer’s death in the crash of a private aircraft piloted by respondent Buscaglia and owned by Buscaglia and respondent Boyle. The action was tried upon allegations that Ayer’s death was caused by the negligence and willful misconduct of respondents. We hold that t...
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Opinion Petitioners, Joseph Rosoto, John Frank Vlahovich, and Donald Glen Franklin, were convicted of murder in the first degree and of several additional crimes. 1 We affirmed the judgments imposing the death penalty in People v. Rosoto (1962) 58 Cal.2d 304 [23 Cal.Rptr. 779, 373 P.2d 867]. Petitioners subsequently sought by writ of habeas corpus to set aside the judgments claiming that ...
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10 Cal.3d 910 (1974) 519 P.2d 1073 112 Cal. Rptr. 649 In re ROBERT NATHAN FOSS on Habeas Corpus. Docket No. Crim. 16690. Supreme Court of California. In Bank. March 14, 1974. *915 COUNSEL Ezra Hendon, under appointment by the Supreme Court, for Petitioner. Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chief Assistant Attorney General, Doris H. Maier, Assistant Attorney General, Charle...
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Opinion On February 25, 1972, defendant, pursuant to a plea bargain, plead guilty to a violation of section 11531 of the Health and Safety Code (sale of marijuana). Judgment was suspended and defendant was placed on probation for two years on the condition he serve six months in the county jail. Another condition was that defendant “submit his person and property to search [and] seizure at any ...
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37 Cal.App.3d 944 (1974) 112 Cal. Rptr. 690 THE PEOPLE, Plaintiff and Respondent, v. WILLIAM KENNETH HIGBEE, Defendant and Appellant. Docket No. 22987. Court of Appeals of California, Second District, Division Five. March 14, 1974. *945 COUNSEL Richard S. Buckley, Public Defender, Harold E. Shabo, Donald Feinberg, and Ronald B. Davey, Deputy Public Defenders, for Defendant and Appellant. Evelle J...
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Opinion Defendant William Kenneth Higbee was charged with and convicted of possession of a concealable firearm by a former felon (Pen. *946Code, § 12021). After motions to dismiss the case (Pen. Code, § 995) and to suppress the evidence (Pen. Code, § 1538.5) had been denied, defendant submitted the case on the preliminary transcript, with appropriate waivers. He was found guilty and sentenced to 9...
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Opinion A Southern Pacific train ran over a pedestrian, resulting in the amputation of the man’s legs. The pedestrian’s lawsuit charged wilful misconduct and negligence on the part of the train crew. The jury returned a $175,000 general verdict in his favor. The railroad’s appeal is predicated on two grounds: (1) the court erred in the jury instructions (mainly, in allowing the wilful miscond...
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Opinion This is an appeal from an action in interpleader brought by Grover Escrow Corporation (“Grover”). At issue is ownership of $8,576.08 currently held on deposit in connection with a combined liquor *914 license-bulk sale escrow. The controverted escrow was established to facilitate sale of a restaurant-cocktail lounge. King’s Row Restaurant, Inc. (“Buyer”) and Kric Enterprises, Inc. (...
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Opinion The State of California (“State”), as petitioner, seeks a writ of prohibition to restrain and enjoin respondent court from continuing to hear a negligence action brought by the real party in interest, American Indemnity Company ( “American” ). In support of its petition, the State notes that, under section 845.8, subdivision (a) of the Government Code, 1 its entities and employees are...
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Opinion On this appeal by plaintiffs from a summary judgment in favor of defendants the sole issue is whether a $20,000 payment made by an insurance carrier satisfied the liability of defendant parents for the personal injuries sustained by plaintiff Elanore K. Dow (hereinafter “Elanore”) as the result of the negligence of the son of said defendants. We answer this question in the affirmative a...
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Opinion Defendant Mitten was charged in the Contra Costa County Superior Court with the crime of being an accessory, as defined and proscribed by Penal Code section 32. Specifically he was charged as an accessory to two crimes of murder, the details of which we shall presently discuss. Penal Code section 32 provides: “Every person who, after a felony has been committed, harbors, conceals or a...
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*1018 Opinion The sole issue on this, appeal is whether a financing statement filed by plaintiff (GECC) pursuant to Commercial Code section 9402 was sufficient to perfect its security interest in a mobile home. On November 18, 1970, GECC entered into a security agreement with Landes Enterprises, Inc., dba Landmark Mobile Homes (Landes), pursuant to which it acquired a security interest in, ...
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37 Cal.App.3d 958 (1974) 112 Cal. Rptr. 739 VERAGENE HARDY, Plaintiff and Appellant, v. WILLIAM F. STUMPF et al., Defendants and Respondents. Docket No. 32689. Court of Appeals of California, First District, Division Three. March 15, 1974. *960 COUNSEL Clifford C. Sweet, Suzanne Mounts, Thomas Fike and Carolyn E. Jones for Plaintiff and Appellant. Edward A. Goggin, City Attorney, and William C. S...
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Opinion Defendant Danny Calloway was found guilty of burglary (second degree) by a jury and applied for probation. After referral to the Department of Corrections for a diagnostic study pursuant to Penal Code section 1203.03, his application for probation was denied and he was committed to the California Youth Authority. On appeal he raises no issues related to his trial and conviction, but ass...
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Opinion Andrew J. Carden (plaintiff) was employed by Unigas, Inc. (employer) as a truck driver. Employer is a supplier of propane gas and plaintiff’s duties required him to drive a tank truck to the premises of the employer’s customers and transfer the propane gas from the truck to the customer’s storage tank. Otto’s Ranch (defendant) was one such customer. On July 12, 1966, plaintif...
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Opinion Eduardo Melendez seeks habeas corpus, contending that he was denied due process of law in proceedings which led to the revocation of his parole. On November 15,1968, petitioner was sentenced to state prison for violation of Penal Code section 261, subdivision 3 (forcible rape). He was paroled on July 8, 1971, and obtained employment as a marine cook. On October 16, 1972,...
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Opinion Ogo Associates (Ogo), a partnership, and Torrance Properties (Properties), a limited partnership, appeal a judgment of the superior court denying their petition for a writ of mandate to compel the City of Torrance (Torrance) to issue Ogo a permit to build a federally financed 86-unit apartment project for persons with low incomes. Properties owns approximately three acres of ...
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*838 Opinion This original proceeding was brought here to review an order of the superior court suppressing as evidence certain stolen automobile parts and the observations of police officers made from a helicopter and from a neighbor’s yard. The superior court accepted the officers’ testimony as true, but concluded that their conduct amounted to an unlawful search under the principles discus...
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*940 Opinion Petitioner and defendant Norman Walker, Jr., was charged in one information with possession of a concealable firearm by an ex-felon (count I, Pen. Code, § 12021) and armed robbery (count II, Pen. Code, § 211). The information also alleged that defendant had been convicted of “robbery and narcotics violations” on July 20, 1967, and June 25, 1968. After being held to answer at the ...
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*954 Opinion This is an appeal by the People (Pen. Code, § 1238, subd. (a)(1)) from an order granting defendant’s motion under section 995 of the Penal Code and setting aside a two-count information which charged him with selling and possessing marijuana. Mickey Bennett was a police officer for the City of Long Beach. At about 7:15 p.m., November 20, 1972, Bennett, who was off duty and out ...
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Opinion Petitioners appeal from the superior court’s judgment of dismissal entered after a demurrer to their first amended petition for a writ of prohibition/mandamus and/or declaratory relief was sustained without leave to amend. 1 Petition The first amended petition alleged the following facts. Petitioners own, operate and manage the Guild Theater, the Academy Theater ...
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11 Cal.3d 77 (1974) 520 P.2d 1 112 Cal. Rptr. 777 TERESA A. DULANEY et al., Petitioners, v. THE MUNICIPAL COURT FOR THE SAN FRANCISCO JUDICIAL DISTRICT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; THE PEOPLE, Real Party in Interest. Docket No. S.F. 23006. Supreme Court of California. In Bank. March 28, 1974. *79 COUNSEL Charles C. Marson, Joseph Remcho, Peter E. Sheehan and Larry Sleizer ...
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*6 Opinion The state Board of Medical Examiners (medical board) and its president appeal from a summary judgment granting a peremptory writ of mandate ordering the state Board of Osteopathic Examiners (osteopathic board) to furnish plaintiff osteopaths and all others of their class with application forms, to process those forms as received, and to examine and license as physician...
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Opinion In the instant case we confront a question concerning judicial review of adjudicatory determinations of administrative agencies which we were not called upon to reach in Bixby v. Pierno (1971) 4 Cal.3d 130 [93 Cal.Rptr. 234, 481 P.2d 242]. That question, whose presence was expressly noted by us in Bixby (id. at p. 137, fn. 2) is this: When, upon judicial review of an administrative order ...
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Opinion Petitioner appeals denial by superior court of his petition for writ of mandamus. Petitioner sought to compel respondent Insurance Commissioner (Commissioner) to issue petitionér a life and disability insurance agent license. After a hearing, Commissioner denied the application on the basis that (1) petitioner was “not of good business reputation” (relying on Ins. Code, § 1668, subd. (d...
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Opinion Three men held up a liquor store in Stockton. In the course of the robbery Mr. Nemie, the proprietor, was fatally shot and Linda Osborne, a customer, wounded. Defendants Johnson, Kelly and Maynard were tried by a jury. Johnson and Kelly were found guilty of Nemie’s murder; of robbing Nemie and John Reyes, the liquor store clerk; of assault with a deadly weapon upon Miss Osborne. Maynard...
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Opinion As will appear in further detail, the appeals herein present the following factual situation: Respondent Alameda County Water District maintains a program through which it regularly replenishes the natural underground water supply within its territorial jurisdiction by forcing stored water below ground in a process of percolation. Appellants are the operators of deep “pits” (or “q...
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*742Opinion By petition for writ of review the petitioning employee seeks an adjudication annulling, vacating and setting aside an opinion and decision of respondent board after reconsideration (involving a complete rehearing), which affirmed a referee’s earlier findings, awards and orders which ordered that applicant take nothing, other than medical-litigation costs on an amount to be adjusted b...
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38 Cal.App.3d 14 (1974) 112 Cal. Rptr. 872 NORTHERN INYO HOSPITAL, Plaintiff and Respondent, v. FAIR EMPLOYMENT PRACTICE COMMISSION, Defendant and Appellant; LOUISE KELLER, Real Party in Interest and Respondent. Docket No. 13200. Court of Appeals of California, Fourth District, Division Two. March 20, 1974. *16 COUNSEL Evelle J. Younger, Attorney General, Robert H. O'Brien, Assistant Attorney Gen...
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Opinion Plaintiff Joseph Gonzales filed an amended complaint seeking to cancel a trustee’s deed and redeem property sold at a trustee’s sale. He also sought punitive damages from the defendants, Gem Properties, Inc., and Max D. Kessler. After a trial by the court, judgment was entered for the plaintiff; the trustee’s sale was declared void and the deed of the trustee invalid. Defendants w...
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Opinion Plaintiff, George Newson, appeals from an adverse judgment entered on a jury verdict in his action for damages for personal injuries sustained when his motorcycle hit a newly constructed concrete “traffic island” in the center of East 14th Street in defendant City. Newson contends that: 1) the evidence did not support the verdict as to his contributory negligence; 2) the court err...
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*1048 Opinion Appellant contends that he was denied the right to have counsel present during interrogation, that the provisions of section 851.5 of the Penal Code should have applied during the custodial interrogation, and that the evidence was insufficient to establish the voluntariness of his confession. The record indicates no attempt on the part of appellant to secure a certificate of p...
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Opinion JCross-appeals in cross-actions for declaratory relief to allocate costs of construction by the Calleguas Municipal Water District for a $4 million water system serving five southeastern Ventura County properties separately owned by American-Hawaiian Steamship Company, Metropolitan Development Corporation, Lester Hope, Lillian Barrett, and Home Savings and Loan Association. ...
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Opinion This is an appeal by plaintiff California Central Coast Regional Coastal Zone Conservation Commission (hereafter “commission”) from an order denying its application for a preliminary injunction against defendant McKeon Construction (hereafter “McKeon”). The relevant facts may be summarized as follows: In May 1971, defendant McKeon held an option to purchase 16.4 acres of unimproved re...
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*86Opinion Plaintiffs, Bessie D. Drennen et al., appeal from a judgment for defendant, County of Ventura, in their inverse condemnation action. The judgment was rendered after trial to the court of the county’s special defense that the owners of the Santa Susana Airport (the Chester L. Fosters) had acquired a specified prescriptive avigation easement over certain land of plaintiffs lying next to ...
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*61 Opinion This appeal is the second of two appeals resulting from an amended complaint filed on behalf of T.E.D. Bearing Company, plaintiff (hereinafter T.E.D.) against defendants Walter E. Heller & Company (hereinafter Heller) and Lawrence Warehouse Company (hereinafter Lawrence). This complaint alleged various counts. After the court sustained demurrers, an order of dism...
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Opinion Rodney Richard Graham, defendant, has appealed from a judgment imposing a prison sentence after a jury had found him guilty of voluntary manslaughter and the trial judge had found he was armed with a firearm at the time of his commission of the offense within the meaning of Penal Code section 12022. The contentions on appeal are concerned solely with the latter finding by the trial ju...
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38 Cal.App.3d 303 (1974) 112 Cal. Rptr. 919 VINCENT GISLER et al., Plaintiffs and Appellants, v. COUNTY OF MADERA, Defendant and Respondent. Docket No. 1862. Court of Appeals of California, Fifth District. March 29, 1974. *305 COUNSEL Gendron & Gendron and Lester J. Gendron for Plaintiffs and Appellants. Roy E. Wolfe, County Counsel, for Defendant and Respondent. OPINION BROWN (G.A.), P.J. In...
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Opinion In this action in inverse condemnation the several appellants1 seek to recover damages from the County of Madera (hereinafter “County”) by reason of the operation of an ordinance zoning their agricultural lands “ARV-20”;2 the zoning ordinance effectively prevents the appellants, and each of them, from using or selling two-and-one-half-acre residential lots delineated on a subdivision map ...
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Opinion Respondent district sought and was granted judicial authorization to discharge appellant upon grounds of unprofessional conduct, evident unfitness for service, and persistent violation of school laws and regulations. (Ed. Code, § 13403, subds. (a), (e) and (g); § 13403.5.) The teacher appeals. Appellant points to a statute (Ed. Code, § 13407) which requires written notice of the “unpr...
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