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All Reporters → cal-rptr → Volume 123

Opinions in cal-rptr Volume 123

Opinion The City of Los Angeles filed this action on September 30, 1955, (1) to quiet its title and obtain a declaration of its prior rights to the water underlying the Upper Los Angeles River Area (hereafter referred to as “ULARA”), and (2) to enjoin the defendants from extracting such water other than in subordination to the plaintiff’s prior rights. Numerous defendants were eliminated ...
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*899 Opinion Defendant appeals a judgment of conviction of burglary in the second degree entered after a jury verdict. The trial court found that defendant had suffered four prior felony convictions. Facts On September 26, 1974, at 2:35 a.m., a Santa Barbara police officer observed defendant walking about a darkened used car lot. Believing that the presence of the defendant at the place a...
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Opinion In January 1972 Nolan Williams sued the Travelers Insurance Company for $1,725,000 for its failure to pay a $25,000 policy of insurance on the life of his deceased infant son. By *808 subsequent amendment the amount of his claim was reduced to $25,000. Travelers cross-complained against Williams for damages for fraud in his application for insurance on the life of his son. In May 1974...
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Opinion The important issues on this appeal arise out of the application of Penal Code section 1203.2a, which governs the termination of probation for a person who has been committed to prison for a subsequent offense. 1 *607 At the request of defendant, and after notice to the Attorney General, we have made the entire Los Angeles Superior Court file in case A 172080 a part of the record ...
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Opinion On September 13, 1972, Camrosa County Water District (Camrosa) filed ah action against Southwest Welding and Manufacturing Company, a corporation (Southwest) and General Insurance Company of America, a corporation (General) 1 for damages “in excess of $5,000 according to proof’ for breach of warranty of the quality of five water tanks. Southwest and General answered on October 20, 197...
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Opinion In a number of recent decisions, the United States Supreme Court and this court have held that a statute which requires a candidate for public office to pay a filing fee as the exclusive means of securing a *924 place on an election ballot violates the equal protection clause of the United States Constitution and that some reasonable alternative means of access to the ballot must be p...
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Opinion Robert D. Stratmore, admitted to practice in 1972, was ordered to show cause why our order admitting him to practice should not be revoked for the commission of acts involving moral turpitude before his admission to practice. It was charged in particular, inter alia, that in 1971 he knowingly made false representations regarding his expenses to 11 New York law firms with the inten...
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*186 Opinion Petitioner, a ward of the juvenile court, is confined in the Camarillo State Hospital pursuant to an order of the juvenile court authorizing his placement in that institution for treatment of a mental health problem. He contends through counsel that his confinement was effected without compliance with protections afforded to persons committed in analogous situations ...
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I concur in the judgment. Although the case is quite close, on balance I agree that defendant’s conduct did not furnish probable cause to believe that the object discarded by defendant contained contraband. I do not agree, however, with the majority’s reaffirmation of its holding in People v. Brisendine (1975) 13 Cal.3d 528, 548-552 [119 Cal.Rptr. 315, 531 P.2d 1099] to the effect that article I, ...
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Opinion The judgment here under review arose from the wanton and brutal rape of a young woman who lived alone near defendant’s temporary residence. As is often typical of such a crime, it was witnessed by no one other than the victim and the rapist. Owing to this circumstance, to the trauma inflicted on the victim and to legal principles of long standing legitimacy, the treatment of the v...
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49 Cal.App.3d 981 (1975) 123 Cal. Rptr. 135 WYANDOTTE ORCHARDS, INC., Plaintiff and Respondent, v. OROVILLE-WYANDOTTE IRRIGATION DISTRICT, Defendant and Appellant Docket No. 14163. Court of Appeals of California, Third District. July 18, 1975. *982 COUNSEL Rich, Fuidge, Dawson, Marsh, Morris, Sanbrook, Grove, Hill & Iverson, John S. Sanbrook and Charles C. Dawson, Jr., for Plaintiff and Respo...
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Opinion Plaintiffs Chuck Levin and the National Movement For The Student Vote filed a complaint for an injunction restraining defendants The Regents of The University of California and the Chancellor of The University of California at Los Angeles from ordering plaintiffs or their representatives to leave the premises of the dormitories and from interfering with efforts of the plaintiffs to registe...
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*183 Opinion Charged with, and convicted by a jury of, two counts of burglary (Pen. Code, § 459-2d degree), defendant Larry Duane Dowdy was sentenced to serve concurrent terms in prison. 1 He appeals, contending: (1) the trial court erred in permitting testimonial references to evidence which had been previously suppressed as having been obtained as the result of an unlawful search, and ...
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Opinion These combined appeals 1 from two actions for refunds of state and local 2 sales taxes paid to the State Board of Equalization in 1968, consolidated for trial on stipulated facts, raise the question of whether, pursuant to Revenue and Taxation Code section 6052, the legal incidence of the California taxes falls on the púrchasing national bank (Crocker), or on...
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Opinion On February 16, 1973, at 3 p.m., Michael Edward Alva, accompanied by his fiance Julie Gonzales, drove his car into the driveway of premises owned by respondent sisters Wilma Cook and Mildred Pinkston, to effectuate a north to south change in travel, and was shot and killed by Malcolm Pinkston, age 62, for whom respondents provided and had for some years prior thereto provided a ho...
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Opinion This is a wrongful death action by the heirs of Clifford L. Stevens and Robert W. Stevens, who died as a result of injuries sustained in a collision between their automobile and one driven by Fr. *881 Copentipy, a missionary Catholic priest from Bayonne, France. The plaintiffs sued Fr. Copentipy and the Roman Catholic Bishop of Fresno, a corporation sole, hereinafter “Bishop of Fresno...
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Opinion The real party in interest, as judgment creditor of petitioner, directed respondent, Constable of the Redding Judicial District, to levy a writ of execution on petitioner’s bank account. Petitioner attempted to file with the respondent a claim of exemption pursuant to section 690.18 of the Code of Civil Procedure. 1 Respondent refused to accept the claim of exemption without payment b...
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50 Cal.App.3d 389 (1975) 123 Cal. Rptr. 185 THE PEOPLE, Plaintiff and Respondent, v. RAUL LEANDRO RODRIQUEZ, Defendant and Appellant. Docket No. 7235. Court of Appeals of California, Fourth District, Division Two. August 1, 1975. *392 COUNSEL Gary K. Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant ...
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Opinion Raul Leandro Rodriquez (hereafter “defendant”) was convicted after a jury trial of violating Penal Code, section 4574 (possession of a deadly weapon, to wit, a razor blade, in county jail).1 He appeals from the judgment (order granting probation). *393On April 19, 1974, defendant was in tank 4 of the Riverside County jail. He was the sole occupant of his cell, a Danny Carter having moved o...
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Opinion Respondent’s employee appeals from a judgment in favor of respondent Union Oil Company in a class action for declaratory relief. 1 By the action, plaintiff sought to claim certain alleged benefits under an employee’s sick pay plan. Facts: Appellant was first employed by respondent on December 26, 1944. He sustained an industrial injury on March 20, 1972, and again on September 21,...
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Opinion The County of Santa Clara and others appeal from a judgment in favor of Hewlett-Packard Company in an action to recover taxes paid under protest. The case was tried upon an agreed statement of facts. Respondent is a manufacturer of electronic equipment in Santa Clara County. From 1968 through 1971, respondent furnished to the Santa Clara County Assessor all information requir...
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Opinion Defendant was found guilty of violating former Health and Safety Code section 11530.1 (now § 11358) (planting and cultivating marijuana). He contends that there was an unreasonable search and seizure of his property; that the trial court improperly denied his motion pursuant to Penal Code section 995; and that the trial court erred in rejecting his offer of proof as to his religious use...
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Opinion After an unsuccessful motion under Penal Code, section 1538.5, defendant pleaded guilty to burglary and now attacks the court’s ruling on the Penal Code, section 1538.5 motion. Mr. Panno was the victim of a burglary. Defendant, a California Youth Authority (hereafter CYA) parolee, became a suspect. Officer Wulf talked to defendant’s parole agent and was advised there was an o...
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Opinion The principal issue presented by this appeal is whether Code of Civil Procedure section 632 as amended, grants a party the right to findings of fact on an order made after the granting or denial of a motion. *835This appeal is from an order made on November 13, 1973, denying appellant’s motion to vacate a previous order1 (of Sept. 11, 1973), modifying spousal support and for attorneys’ fee...
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50 Cal.App.3d 37 (1975) 123 Cal. Rptr. 216 JAMES B. ADAMS et al., Plaintiffs and Appellants, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY et al., Defendants and Respondents. Docket No. 14832. Court of Appeals of California, Third District. July 21, 1975. *38 COUNSEL Gladstein, Leonard, Patsey & Anderson, Norman Leonard and Jed Gladstein for Plaintiffs and Appellants. Evelle J. Younger, Attorney...
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Opinion This petition for writ of habeas corpus arises out of a finding that Theodore Keller was guilty of contempt of court and his sentence pursuant thereto. This court originally denied Keller’s petition for habeas corpus. Thereafter, the Supreme Court ordered respondent Superior Court for the City and County of San Francisco to show cause before this court why the relief prayed for should n...
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Opinion Petitioner (Colwell) is the defendant in a class action complaint brought by the real parties in interest (plaintiffs) on behalf of themselves and other persons similarly situated who in payment for the construction of mountain cabins executed lien contracts and deeds of trust which were assigned by the builders to Colwell. Colwell has purchased more than 1,800 contracts similar t...
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Opinion This case, a wrongful death action, results from a private airplane crash which occurred on December 13, 1971. The plaintiffs, Dorothy Neuland, Richard Neuland, Paul Neuland, Timothy Neuland, Mary Anne Neuland and Anne Marie Neuland, are the widow and surviving children of Joseph Neuland, who is alleged to have been a passenger in the airplane and who died in the crash. William Russell ...
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Opinion It is the settled law of this state that “ ‘retirement benefits which flow from the employment relationship, to *152 the extent they have vested, are community property subject to equal division between the spouses in the event the marriage is dissolved.’ ” (Italics added.) (Smith v. Lewis, 13 Cal.3d 349, 355 [118 Cal.Rptr. 621, 530 P.2d 589]; In re Marriage of Fithian, 10 C...
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Opinion The first alleged cause of action of plaintiff Norton’s complaint is for damages for malicious prosecution against Frank Lind (Lind), and the second alleged cause of action thereof is for damages for “professional negligence” by Larry L. Hines, an attorney, and Nordman, Cormany, Hair & Compton, the unincorporated law firm of which Hines is a member (both Hines and the l...
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Opinion A petition was filed in the juvenile court alleging that the minor, Valerie E., came within the provisions of Welfare and Institutions Code section 602, in that she allegedly committed battery (Pen. Code, § 242) against two police officers (paragraphs I and II). Defendant’s motion for pretrial discovery was denied. The court found the allegations in the petition to be tme and declared d...
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Opinion In 1971 Penal Code section 1303 was adopted, establishing a procedure for transferring bail from a dismissed criminal charge to a new criminal charge. 1 Here we consider the effect of the clerk’s- failure to comply with the statute’s command to notify the bondsman of the transfer. *435 Defendant Salazar was arrested on a complaint charging narcotic violations. Bail totaling $25,00...
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Opinion On October 24, 1957, Mona Emanuel obtained an interlocutory decree of divorce from her then husband Vincent Emanuel. That decree approved a property settlement agreement between the parties and ordered performance of its executory provisions. One of those provisions provided that “[Vincent Emanuel] promises and agrees to pay to [Mona Emanuel] for her support and maintenance a...
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*807 Opinion Defendant was charged in an information in count I with the crime of murder, in count II with forcible rape and in count III with burglary. The superior court granted defendant’s motion pursuant to Penal Code section 995 and ordered count I of the information set aside. The People appeal. Facts On March 28, 1974, at about 1 a.m., defendant in company with one Marcelino Perez ...
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Opinion In a California action brought by plaintiff Bartholomew Brandeburg against New York Telephone and Telegraph Company *895(hereafter “New York Telephone”), a foreign corporation, for damages for personal injuries, the superior court granted New York Telephone’s motion to quash service of summons. Plaintiff has appealed from the order granting the motion. The basic issue of the appeal is whe...
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*977Opinion The appeal before us concerns the one-year limitation for commencement of an action against a carrier for loss or damage to goods received for shipment by sea, found in the “Carriage of Goods by Sea Act.” (46 U.S.C.A. §§ 1300-1315 [46 U.S.C.S. §§ 1300-1315] inclusive; hereafter sometimes the “act.”) The limitation provision is found in section 1303(6), of the act, and it reads as foll...
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Opinion Plaintiff sued for breach of a contract of employment. The case was settled by a stipulation for judgment and a judgment. The settlement required defendant to pay plaintiff $35,000, payable $1,000 on *912or before February 8, 1974; $4,000 on or before March 8, 1974; and $1,500 per month, payable on the fifth day of each month, commencing on April 5, 1974. The stipulation and judgment expre...
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Opinion Plaintiff filed a class action against defendant insurance company, seeking an injunction against the distribution of certain solicitation material, alleged to be inaccurate and misleading. After proceedings lasting over 11 months, the parties entered into a stipulated judgment which, in effect, granted plaintiff the relief sought. The judgment also ordered defendant to pay the sum of $7,...
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Opinion Petitioner Carroll Wayne Jordan is presently incarcerated at Susanville pursuant to a judgment of the Amador County Superior Court convicting him of possession of stolen property (Pen. Code, § 496). Petitioner was arrested in July 1972 by United States Treasury Department agents from the Bureau of Alcohol, Tobacco and Firearms, while he was in the process of stealing a quantity of exp...
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Opinion Plaintiff Thomas D. McBride brought an action in Santa Clara County for a real estate brokerage commission against defendant Alpha Realty Corporation. The defendant cross-complained against cross-defendant Hotel Circle, Inc. The plaintiff and cross-defendant were represented in the action by the same attorney. Following a trial, the court made and filed its memorandum of decision ruli...
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Opinion seeking a writ of prohibition, is one of several defendants in a class action currently pending in the Los Angeles County Superior Court. That court granted the motion of plaintiff (real party in interest) for an order compelling petitioner to answer certain interrogatories, concerning petitioner’s state sales tax returns. Petitioner contends that the information sought is privile...
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Opinion In a prior action for damages arising out of an automobile accident, plaintiff Muriel Johansen obtained a judgment of $33,889.30 against Gary and Joyce Dearing, a sum well in excess of the Dearings’ automobile insurance policy limits. Although the Dearings’ insurance carrier* defendant in the instant action, assumed the Dearings’ defense in the earlier suit, it refused, during the...
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14 Cal.3d 943 (1975) 538 P.2d 753 123 Cal. Rptr. 297 THE PEOPLE, Plaintiff and Respondent, v. RANDOLPH LEE LONGWILL, Defendant and Appellant. Docket No. Crim. 17773. Supreme Court of California. In Bank. August 7, 1975. *945 COUNSEL Kenneth A. Wilson, Sr., under appointment by the Supreme Court, for Defendant and Appellant. Rose Elizabeth Bird and Michael P. Thorman as Amici Curiae on behalf of D...
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Opinion Code of Civil Procedure'section 1013 extends the time for responsive action by a party to a lawsuit served by mail with a “notice or other paper.” The case at bench involves the narrow issue of the applicability of section 1013 to extend the time of a party to move to compel further compliance with self-executing civil discovery. We conclude that by reason of the expanded definition of ...
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Opinion Pursuant to Code of Civil Procedure section 1987, subdivision (c), real party in interest, on June 10, 1975, served by mail upon petitioners a request to produce persons, books, documents, and “other things” at a trial set for July 10, 1975. On June 20, 1975, petitioners served and filed objections to the request to produce. Real party in interest moved to strike petitioners’ objections, c...
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Opinion The People move to dismiss defendant Joseph William Buffalo’s appeal from his conviction of second degree murder. After his trial in Orange County, Buffalo was returned to federal custody to finish serving a previously imposed sentence before beginning service on the state sentence imposed for the murder conviction. Released by error, he is now a fugitive from both state and federal aut...
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Opinion Plaintiff David J. Jacobs filed this action against defendant union, his former employer, to recover unpaid wages and punitive damages under Labor Code section 203. Partial summary judgment granted Jacobs on July 25, 1973, ordered that he recover $8,297.28 from the union in severance pay. On September 25, 1973, the court dismissed the punitive damage issue from the case with preju...
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*502 Opinion In Currieri v. City of Roseville (1970) 4 Cal.App.3d 997 [84 Cal.Rptr. 615], this court held that appellant Michael A. Currieri (hereinafter “appellant”) and John Zwolinski, 1 two police officers of the City of Roseville (hereinafter the “City”), had been improperly discharged, and ordered them reinstated to their positions, with back pay. The opinion concluded, “As petitio...
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*224 Opinion Plaintiff appeals from a judgment against him in favor of defendant, which was signed by the court, in a jury case based on an order granting defendant’s motion for a “nonsuit” made after all parties had rested. The judgment decreed defendant “have judgment” against the plaintiff. 1 Plaintiff was injured while surfing at a beach, on the oceanfront, calle...
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Opinion In this appeal from a judgment for defendant-respondent in an action for damage to property, appellants contend the trial court prejudicially erred in refusing requested conditional res ipsa loquitur instructions and in commenting to the jury so as to confuse it and prejudice the plaintiffs’ case. We conclude that the trial court prejudicially erred in not instructing on the applicabili...
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Opinion In a jury trial appellant was convicted of receiving stolen property belonging to Marilyn Miranda (Pen. Code, § 496), and of burglary of the residence of Tony Merriweather (Pen. Code, § 459). 1 He appeals from the judgment sentencing him to imprisonment in the state prison. Facts Count II (Miranda) On August 17, 1973, Marilyn Miranda’s apartment at 965 So. Magnolia was burglar...
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Opinion Joel Rostau, now deceased, during his lifetime filed two separate timely1 claims complete in all respects for losses of variou *494items of jewelry sometime between October 28 and November 8, 1969, insured in equal amounts, under two several insurance policies issued to Rostau severally by respondents on August 25, 1969. Each of the claims were severally rejected. On May 12, 1970, a compl...
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50 Cal.App.3d 592 (1975) 123 Cal. Rptr. 361 THE PEOPLE, Plaintiff and Respondent, v. JAMES RICHARD CHEATHAM, Defendant and Appellant. Docket No. 2079. Court of Appeals of California, Fifth District. August 11, 1975. *594 COUNSEL Mark Franich, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney Genera...
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Opinion This appeal is from a judgment of conviction of escape while charged with a felony. (Pen. Code, § 4532, subd. (b).) At the time of his escape, appellant had been formally charged with violations of Penal Code sections 593 and 484 (interference with electrical transmission lines and theft, respectively) by a complaint theretofore filed in a justice court and was arrested pursuant to a warra...
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Opinion The issue in this case is whether a juvenile charged with the commission of a crime is entitled to bail on the same conditions as an adult similarly charged. Plaintiff Ernest L. Aubry, in a taxpayer’s action brought against the Presiding Judge of the Juvenile Department of the Los Angeles Superior *472 Court, one other juvenile court judge, all the commissioners ...
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Opinion Linda Lee LaCosta appeals from the judgment of dismissal entered after demurrer to her complaint was sustained without leave to amend. Notice of appeal was filed prior to the entry of judgment; however, we elect to treat said notice as filed immediately thereafter and thus timely. (Cal. Rules of Court, rule 2(c).) Appellant, as beneficiary, sought to recover proceeds under a nonoccupationa...
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*540 Opinion This is an action for damages for the alleged gross negligence of the defendant with respect to its obligations to provide telephone service for the plaintiff. After a jury trial plaintiff was awarded damages of $10,820 from which judgment the defendant has appealed. The issues on appeal revolve around rule 26 of defendant’s tariff, which provided that, for interrupt...
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I dissent. As the majority concedes, a fixed term of office may be inferred from the statute creating the appointment. (Boyd v. Huntington (1932) 215 Cal. 473, 479 [11 P.2d 383].) The histoiy, purpose, and language of the Coastal Zone Conservation Act of 1972 clearly show that the public commissioners serve for the brief term of the act rather than for the shorter-termed pleasure of the sovereign....
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Opinion Defendant appeals from a judgment of conviction entered upon jury verdicts of guilt of first degree burglary with great bodily injury and use of a firearm (Pen. Code, §§ 459, 460, 12022.5), 1 first degree robbery with great bodily injury and use of a firearm (§§ 211, 211a, 12022.5), and possession of a concealable firearm by a convicted felon (§ 12021), and from a findi...
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Opinion Defendant appeals from an order of the Superior Court of Alameda County which was rendered after an evidentiary hearing. The purpose of such hearing was to determine the voluntariness of a particular statement made by defendant. The factual background of this appeal shows that 15 years ago, in 1960, defendant was convicted of murder in the California superior court and sentenced to death. ...
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Opinion Appellant Jessup Buena Vista Daily, a corporation, appeals from a judgment in a declaratory relief action in which the court decreed that a certain asset, a milk pool quota, was an asset of a partnership between respondent, the plaintiff below, and appellant, the defendant below, and directed the value of such milk pool quota be appraised in accordance with the provisions set forth in t...
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Opinion Plaintiff appeals from the judgment in his personal injury action, based on a verdict against him and in favor of the defendants, Francis Walter Petronella, a deputy sheriff, and Orange County, his employer. The action sought damages for injuries plaintiff sustained in a collision between an automobile driven by him and an automobile driven by Petronella. Both automobiles were traveli...
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*304 Opinion Lua Thurmond Safwenberg (Safwenberg), plaintiff, respondent and cross-appellant, brought an action as executrix of the estate of Alice Thurmond (her mother) to quiet title to a portion of an abandoned street (Ash Street) in the City of Carpenteria, Santa Barbara County. She claimed the abandoned street belonged to the estate. Eliaz Marquez and Albert Sanchez (Marquez...
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Opinion Defendant appeals after a jury convicted him of voluntary manslaughter and of weapon possession by an ex-felon. (Pen. Code, § 12021.) The indictment charged him as follows: count I, murder; count II, weapon possession by ex-felon; count III, that he was armed with a deadly weapon at the time of the offense mentioned in count I (Pen. Code, §§ 3024, 12022); counts IV and V, two prior felo...
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Opinion Plaintiffs (a class of founding shareholders represented by William W. Crain) appeal from a judgment on the pleadings entered in favor of defendants. The judgment—which resulted in the dismissal of *512 plaintiffs’ complaint with prejudice—was based upon the trial court’s determination that it did not set forth personal causes of action which could be prosecuted by pl...
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Opinion In conjunction with defendant’s withdrawal from plaintiff, a continuing law partnership, they entered into an agreement pertaining to the share of an attorneys’ fee defendant would receive upon successful termination of a certain (Brower) case retained by plaintiff firm. Later *562plaintiff referred the case to other counsel who settled it and took 60 percent of the total attorneys’ fee a...
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Opinion By his petition for writ of review petitioner seeks review of an order of respondent board which denied his petition for reconsideration of a referee’s order denying and dismissing his petition for the assessment of a 10 percent penalty on an award of $5,670 for permanent disability made by a referee on August 15, 1973, and paid January 17, 1974, 13 days after denial of a writ of ...
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Opinion This wrongful death action arises out of an accident in which the decedent was struck and killed by a motorboat while water-skiing on Shasta Lake on July 29, 1973. Plaintiffs appeal from a judgment dismissing the complaint as to Shasta County, after a demurrer thereto was sustained without leave to amend. 1 Plaintiffs’ complaint, insofar as here pertinent, is summarized as follows...
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50 Cal.App.3d 572 (1975) 123 Cal. Rptr. 445 Estate of GRANT V. LEVIE, Deceased. BELVA SPINI, Petitioner and Respondent, v. SHERREY E. HANKINS, as Administratrix, etc., Objector and Appellant. Docket No. 36627. Court of Appeals of California, First District, Division Four. August 11, 1975. *574 COUNSEL Elton F. Martin and James G. Luce for Objector and Appellant. Howard C. Anawalt for Petitioner a...
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Opinion Sherrey E. Hankins (appellant) filed in the superior court (San Mateo) a petition for letters of administration in the estate of her deceased father, Grant V. Levie. Belva Spini (respondent in this appeal) objected, alleging that she was the surviving spouse entitled to priority, under Probate Code section 422, in the granting of letters. The court granted letters to appellant. Respondent ...
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Opinion Petition for writ of mandate following denial by the trial court of petitioner’s motions to vacate an order confiscating his personal property and to return evidence to him pursuant to Penal Code section 1418. 1 Petitioner had been charged with assault with a deadly weapon on a peace officer. (§ 245, subd. (b).) Upon his arrest at his residence, petitioner had certain weapons in his...
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Opinion Appellant (Wife) appeals from an interlocutory judgment of dissolution of marriage and from an order denying a new trial.1 Wife and Husband were married August 13, 1966, and separated February 15, 1972. The interlocutory judgment of dissolution of marriage was entered May 4, 1973. In making its order the trial court found: “Respondent has been in private practice since 1944; the gross year...
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Opinion James H. Gabriel appeals from a judgment determining arrearages in the payment of spousal support and in respondent wife’s community interest in military retirement pay. Husband appeared specially, by counsel, and moved to quash service of wife’s notice of motion, contending that there had been no effective service of the notice of motion. The court denied the motion to quash, and made an ...
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*570 Opinion Petitioner, a claimant for public assistance under the aid to the totally disabled program (ATD), filed a petition for writ of mandate in the superior court to compel the Director of the State Department of Social Welfare (Director) to issue his decision after an administrative “fair hearing” on petitioner’s claim. The court issued an alternative writ and order to show cause, hel...
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50 Cal.App.3d 374 (1975) 123 Cal. Rptr. 458 Estate of CARLO FRANCO, Deceased. CATERINA ARMARIO, Contestant and Appellant, v. JOHN LEROY FRANCO, as Executor, Objector and Respondent. CATERINA ARMARIO, Plaintiff and Appellant, v. JOHN FRANCO et al., Defendants and Appellants. Docket No. 2038. Court of Appeals of California, Fifth District. July 1, 1975. *377 COUNSEL Boccardo, Blum, Lull, Niland, Te...
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*Supp. 11Opinion Appellant was convicted in Los Angeles Municipal Court for violations of subdivision h of section 2 of Los Angeles City Ordinance No. 95789 (count I) and section 602.4 of the Penal Code (count II). As to count II, the city attorney notes that section 602.4 of the Penal Code1 deals with an airport located in a county other than that of its owner-county and that such section is inap...
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Opinion Charged with felony drunk driving (Veh. Code, § 23101) and vehicular manslaughter (Pen. Code, § 192, subd. 3(a)), petitioner seeks a writ of mandate directing respondent superior court to suppress a blood sample withdrawn from him without warrant or consent following a- fatal traffic accident. Respondent court first granted petitioner’s suppression motion, then —upon reconsideration...
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Opinion A rock radio station with an extensive teenage audience conducted a contest which rewarded the first contestant to locate a peripatetic disc jockey. Two minors driving in separate automobiles attempted to follow the disc jockey’s automobile to its next stop. In the course of their pursuit, one of the minors negligently forced a car off the highway, killing its sole occupant. In a ...
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Opinion Defendant Frank John Antick was charged by an amended information (hereafter information) with burgláry (Pen. Code, § 459) 1 (count I), grand theft (§ 487) (count II), assault with a deadly weapon upon a peace officer (§ 245, subd. (b)) (count III), murder (§ 187) (count IV), and two prior felony convictions. 2 With respect to counts I and II, it was alleged that at the time of the ...
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Opinion The State Controller appeals from an order fixing the inheritance tax in the estate of Edward Schmalenbach, deceased. At issue is whether state and federal gift taxes accrued and payable at the time of death and paid after death on transfers subject to California inheritance and federal estate taxes are deductible in determining the clear market value of the estate upon which the ...
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*602 Opinion Plaintiff, Benjamin Worden, a police officer, instituted this action to recover damages for personal injuries sustained when he was thrown off his motorcycle as it allegedly skidded out of control due to a spillage of diesel fuel on Lakewood Boulevard in the City of Downey. C & E Transportation Co. (C & E), Lonnie Grady Gentry (Gentry), an employee of C & E, and the ...
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Opinion Statement of the Case On August 28, 1972, petitioners filed in the respondent court a petition for writ of mandate seeking to compel desegregation of the Delano Union Elementary School District. On October 30, 1972, real parties in interest filed a general demurrer to the petition. On November 7, 1972, Proposition 21 (the Wakefield Anti-Busing Initiative) was passed by the Californi...
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Opinion Petitioner was a campus policeman employed by the California State University; he became permanently disabled by heart disease in 1973. The issue to be decided is whether the provisions of Labor Code sections 3212-3213 which are applicable to certain other peace officers must be applied for his benefit. 1 Petitioner had been hired by the California State University and Colleges (for...
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Opinion The case at bench involves cross-appeals. That of appellant Kristal (Employee) asserts that he was erroneously discharged from his position as a tenured teacher of mentally and emotionally disturbed children at Camarillo State Hospital and was denied procedural due process by the absence of an evidentiary hearing before his dismissal became effective. The appeal of California State Pers...
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Opinion Joint Holdings & Trading Company, Ltd. (plaintiff) and First Union National Bank of North Carolina (Bank) dispute the priority of their competing creditor liens against 42,888 pairs of trousers. Plaintiff asserts priority by virtue of writs of attachment issued in its pending lawsuit against Peter J. Brennan, Inc., and Peter J. Brennan, Inc. of American Samoa; Bank asserts priorit...
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Opinion Plaintiff Wayne Merrill Collins appeals from a summary judgment in favor • of defendant City and County of San Francisco, in an action for damages for a false arrest by one of the city’s police officers. The police officer was not joined as a defendant. Preliminarily, and as an aid in our discussion, we point out that “false arrest” and “false imprisonment” are not...
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Opinion This petition for writ of prohibition alleges that Board of Administration, Public Employees’ Retirement System (Board) is a cross-defendant and respondent in two actions pending before respondent court entitled “Dennis V. Rozsa v. City of Santa Monica,” No. 33189 and “City of Santa Monica v. Board of Administration of Public Employees’ Retirement System,” No. C 108897; that said ...
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Opinion Introduction This is an appeal from a superior court judgment denying a writ of mandate brought by petitioner, an alien, seeking a reversal of a decision denying his application for unemployment insurance benefits. The petitioner, appellant herein, an alien and not a United States citizen, refused to present to employees of the governmental agency charged with the responsibility of monito...
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Opinion Appellant is the County of Fresno, a political subdivision of the State of California. Respondents are the United States of America and 17 individuals employed by the United States in the Forest Service of the Department of Agriculture; for convenience, we hereinafter will refer to the United States as the government and to the 17 employees as respondents. Appellant appeals f...
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Opinion Appellants, Municipal Court for the Los Angeles Judicial District (court) and People of the State of California (people), real party in interest, appeal from a writ of prohibition, treated as a writ of habeas corpus granted by the superior court in favor of respondent Anthony Nagera Torres and directed to the municipal court. *781 The undisputed facts show that respo...
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Opinion John R. Cooper, Ph.D., appeals from a judgment of the superior court denying him mandamus relief upon administrative review of respondent State Board of Medical Examiners’ action revoking his license as a licensed psychologist. On September 21, 1971, the Psychology Examining Committee of respondent Board 1 filed an accusation against appellant’s license. Appellant ...
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*171 Opinion Defendant was charged in count I of the information with murder (Pen. Code, § 187) and in counts II, III and IV with robbery (Pen. Code, § 211). He pleaded not guilty. A jury found him guilty of one count of first degree murder and three counts of first degree robbery. The jury further found to be true, as to each count, an allegation that defendant had used a firearm in the comm...
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Opinion Plaintiffs No Oil, Inc., et al. (hereinafter “No Oil”), and intervening plaintiffs South Coast Regional Commission and California Coastal Zone Conservation Commission (hereinafter “Coastal Commissions”) appeal from a judgment in favor of defendant Occidental Petroleum Corporation 1 (hereinafter “Occidental”) and intervening defendant Pacific Palisades Landowners Associa...
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*656 Opinion Plaintiff appeals from summary judgment of the Monterey County Superior Court in favor of defendant. Issues Presented 1) The pertinent contracts do not provide that plaintiff indemnify defendant for the expenditures in question. 2) Defendant’s declaration does not establish that plaintiff subsequently assumed liability for the cost of repairs. 3) ...
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*169 Opinion This appeal from a judgment in declaratory relief construing the exclusion provisions of an automobile insurance policy presents the constantly recurring issue of whether the particular exclusion clause is “plain, clear and conspicuous” so as to be effective, or is “ambiguous” so as not to deny coverage. Noting that a flood of prior decisional law establishes only that ambiguity ...
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*867 Opinion Appellant Collection Control Bureau as plaintiff sued respondent Joseph L. Weiss on a defaulted $5,000 negotiable promissory note (note) made by respondent and assigned to appellant after maturity in the manner hereinafter detailed. This appeal is from the judgment entered in favor of respondent. On November 8, 1968, respondent as maker delivered note to Crocker Citizens Nation...
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Opinion This action in fact is a dispute between two insurers as to which must bear the loss sustained in a single accident. The named plaintiff is insured by Continental Casualty Company, which brought the action in the name of its insured. One Datis Malone owned a two-door Toyota sedan, which defendant State Farm insured against public liability and property damage. Malone’s policy also cov...
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Opinion This appeal by the insurer from a judgment in favor of the widow of the insured for double indemnity death benefits presents a question of first impression in this state as to whether the exclusionary clause of the insurance policy issued by California-Western comes within the “prime or moving cause” rule of Brooks v. Metropolitan Life Ins. Co., 27 Cal.2d 305...
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Opinion This is an appeal in a dissolution proceeding in which the appellant husband claims the court erred in declaring his military retirement benefits to be community property and subject to immediate division, although he had not then retired. The appeal comes to us on an agreed statement pursuant to rule 6 of the California Rules of Court. The statement reflects that appellant was a chief mas...
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*Supp. 3Opinion The defendant was charged with violation of section 26453 of the Vehicle Code in that he failed to maintain his brakes in good condition. He was arraigned on May 15, 1974, and plead not guilty. On June 10, 1974, he changed his plea to nolo contendere and the court fined him $50 plus $15 penalty assessment. On August 15, 1974, a complaint was filed against the defendant, charging hi...
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Opinion In this action for damages for breach of contract defendants Elizabeth and Ellwood Johnston, individually and as copartners doing business as Old English Rancho, appeal from a judgment entered after a nonjury trial in favor of plaintiff H. B. Taylor and against them in the amount of $132,778.05 and costs. Plaintiff was engaged in the business of owning, breeding, raising and ...
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15 Cal.3d 111 (1975) 539 P.2d 433 123 Cal. Rptr. 649 DELORES J. SMITH, Individually and as Administratrix, etc., Plaintiff and Appellant, v. WESTLAND LIFE INSURANCE COMPANY, Defendant and Respondent. Docket No. S.F. 23205. Supreme Court of California. In Bank. August 28, 1975. *113 COUNSEL Donald P. McCullum and Charles O. Triebel for Plaintiff and Appellant. John R. Pascoe, Cullinan, Hancock, Ro...
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Opinion Taft Wilson, Jr., appeals from his conviction, after trial by juiy, of violation of Penal Code, section 664 (attempt to commit second degree robbery) and Penal Code, section 220 (assault with intent to commit robbery). I. Wilson correctly urges that the court erred in failing to give sua sponte CALJIC 2.72 (corpus delicti must be proved independent of admission). ...
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Opinion Plaintiff, Sidney Schonfeld, appeals from a judgment of nonsuit as to his causes of action for fraud and misrepresentation against *405 respondent, Ficklin, the former city manager of the respondent, City of Vallejo, and from a judgment of dismissal, sustaining without leave to amend the city’s demurrer to his causes of action for fraud, misrepresentation and breach o...
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Opinion John Douglas (Douglas) filed a second amended complaint against Los Angeles Herald-Examiner, Division of the Hearst Corporation 1 (Herald) for indemnity and money damages seeking to recover attorney’s fees and costs [under the provisions of Labor Code section 2802] 2 incurred by him in defense of an action filed against him in the United States District Court...
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Opinion Defendant pleaded guilty to second degree burglary (Pen. Code, § 459) and, on October 5, 1973, was sentenced to six months in *104 county jail. Execution of sentence was suspended and she was granted three years’ probation under certain terms and conditions. On March 1, 1974, defendant wasfound to be in violation of probation; probation was revoked and she was committ...
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Opinion This proceeding involves the application of Code of Civil Procedure section 581a, subdivision (a), which requires dismissal of an action if the summons is not served and returned within three years after the commencemen of the action. 1 No decision has been found applying that section to the facts presented here. On April 5, 1971, an action was filed in the superio...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 758 OPINION Plaintiff Ethel Harvey commenced an action for damages for injuries sustained in the course of her employment by the County of Contra Costa, alleged to have been proximately caused by the negligence of defendant Edwin Boysen. The injuries had cause...
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Opinion Plaintiff Ethel Harvey commenced an action for damages for injuries sustained in the course of her employment by the County of Contra Costa, alleged to have been proximately caused by the negligence of defendant Edwin Boysen. The injuries had caused her to *759lose a substantial amount of time from her employment. During trial the action was settled by payment to her of $21,000. A Contra ...
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Opinion This is an appeal from an order of dismissal following the sustaining of a demurrer without leave to amend a complaint for inverse condemnation and damages to property. Plaintiffs allege in their complaint filed April 24, 1973, and in face of a demurrer we accept these allegations as true, that on July 21, 1966, the *531 defendant through its highway commission a...
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*731 Opinion Petitioner is the attorney for applicant Friedrich Leinweber (“applicant”) in two workers’ compensation cases (66 POM 5677 and 70 POM 17979) consolidated for hearing before the Workers’ Compensation Appeals Board (“Board”). Petitioner seeks review of portions of several orders made by the Board in the consolidated cases: Opinion And Decisions After Reconsideration da...
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Opinion After his plea of former jeopardy was rejected, Mario Lombardo was convicted in the Municipal Court of the Santa Barbara-Goleta Judicial District of a violation of section 166, Penal Code (willfully and unlawfully refusing to answer material questions after being sworn in the case of People v. Joszef Unszusz after having been given immunity). He was sentenced to six months in the county...
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51 Cal. App. 3d 57 (1975) 123 Cal. Rptr. 763 RESERVE INSURANCE COMPANY, Plaintiff and Appellant, v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Defendant and Respondent. Docket No. 45647. Court of Appeals of California, Second District, Division Five. August 28, 1975. *59 COUNSEL Murchison, Cumming, Baker & Velpmen, Friedrich W. Seitz and Benjamin George Williams for Plaintiff and Appellant. Ba...
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Opinion Appellant was convicted following a jury trial of first degree burglary. Probation was denied and appellant was sentenced to state prison for the term prescribed by law. At trial appellant took the stand in his own behalf and maintained that he had entered the premises to ask about a job. He testified that he knocked on the front door and upon receiving no response went through a side...
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*552 Opinion Plaintiffs filed a complaint against defendant City and County of San Francisco seeking damages for personal injury to two persons and for the wrongful death of two others. The appeal is from a judgment of nonsuit. Two police officers stopped their car behind a white Cadillac automobile which was double-parked on Fillmore Street in San Francisco. The occupants o...
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Opinion Defendants Lockheed Shipbuilding and Construction Company (hereinafter Lockheed), Loren G. Savage, and Otha G. Ree, Jr., appeal from convictions on several counts of misdemeanor violations of safety provisions of the California Labor Code. Charges against the defendants arose out of a flash fire on June 23, 1971, and an explosion on June 24, 1971, during the construction of the San Fernan...
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51 Cal. App. 3d 89 (1975) 123 Cal. Rptr. 793 LEE RATCLIFFE et al., Plaintiffs and Appellants, v. EDWARD PEDERSEN, Defendant and Respondent. Docket No. 2104. Court of Appeals of California, Fifth District. August 29, 1975. *92 COUNSEL Bradley, Conn & Hicks and Lloyd L. Hicks for Plaintiffs and Appellants. Hahesy & Ward, Webb, Pike, Burton & Carlson, L. Edward Ward and Lloyd J. Webb for...
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Opinion Plaintiff City of San Jose brought an action in small claims court against defendant Joseph Donohue, seeking to‘recover the sum of $90.85 which was allegedly due under a city ordinance imposing a tax upon utility users. Defendant challenged the constitutionality of the ordinance, and the case was transferred to the superior court. (Code Civ. Proc., §§ 89, subd. (a)(1), 117.) The s...
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Opinion Plaintiffs Thurman Williams and Natividad Williams are husband and wife. They appeal from a judgment after the trial court sustained general and special demurrers to their damage complaint without leave to amend. In the complaint’s first seven counts, Thurman Williams seeks damages on various, theories from Wallace Brothers, his employer, and State Compensation Insurance Fund, the...
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Opinion This is an appeal by the People from a judgment granting a peremptory writ of prohibition, terminating proceedings on a misdemeanor charge in respondent court. For the reasons hereinafter set forth, we affirm the judgment. The facts are not in dispute and we set them forth as they were found by the trial court: “1. Petitioner, Barbara Jean Chartuck, is the defendant in that certain ...
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51 Cal. App. 3d 69 (1975) 123 Cal. Rptr. 819 WILLIAM HUTCHINS, Plaintiff and Appellant, v. GERALD G. WATERS, Defendant and Respondent. Docket No. 35843. Court of Appeals of California, First District, Division One. August 29, 1975. *70 COUNSEL Judd C. Iversen and Norman Harris for Plaintiff and Appellant. Bledsoe, Smith, Cathcart, Boyd & Eliot and Lawrence G. Lossing for Defendant and Respond...
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51 Cal. App. 3d 120 (1975) 123 Cal. Rptr. 822 In re the Marriage of SHIRLEY and DENNIS MEIER. JOYCE VAN HOVE et al., Appellants, v. SHIRLEY MEIER et al., Respondents. Docket No. 46044. Court of Appeals of California, Second District, Division Four. September 2, 1975. *121 COUNSEL Jerome V. Posell for Appellants. Tom Waite for Respondents. OPINION KINGSLEY, J. This is an appeal from an order of th...
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51 Cal.App.3d 80 (1975) 123 Cal. Rptr. 825 Estate of LUCINDA CROSS, Deceased. UNITED CALIFORNIA BANK, as Executor, etc. et al., Petitioner and Appellants, v. RUBY JOHNSON et al., Objectors and Respondents. Docket No. 15093. Court of Appeals of California, Third District. August 29, 1975. *82 COUNSEL Jane Skanderup and Richard C. Beesley for Petitioner and Appellants. Harry A. Hammond and Breyer &...
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Opinion Beneficiaries of the estate of Lucinda Cross filed objections to the final account of United California Bank, executor, *83complaining that the bank had paid commissions to two real estate brokers, without verified claims having been filed and without court approval. The probate court held an evidentiary hearing to determine whether Probate Code section 929 permitted allowance of these ex...
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Opinion In this matter we affirm the action of the superior court refusing to allow a school district to discharge a teacher convicted of cultivating a single marijuana plant. Respondent Theodor Judge was a tenured and certificated teacher employed by appellant Board of Trustees of the Santa Maria' Joint Union High School District (the Board). In 1972 he was arrested and charged with the ...
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I dissent. I would reverse with directions to vacate the order for discovery and to reconsider the motion on the grounds that the trial court did not properly weigh and consider the factors presented in exercising its discretion in granting the defense discovery motion which, in turn, formed the basis for the dismissal of the case. While it is a general rule that a trial court’s ruling should be s...
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Opinion Kendall Yacht Corporation (hereinafter “Corporation”) and Lawrence and Linda Kendall filed a complaint against the United California Bank (hereinafter “Bank”) and Ron Lamperts, a United California Bank loan officer, to recover damages for injuries allegedly suffered as a consequence of the Bank’s breach of agreements to loan money to the Corporation. The Bank cross-complained for ...
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Opinion Following a preliminary hearing before a magistrate defendants were held to answer in the superior court and an information was filed against them charging them with having on or about July 19, 1974, committed the crime of possession of marijuana for sale in violation of Health and Safety Code section 11359. The superior court granted defendants’ motion to set the information aside purs...
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Opinion Defendant Barnfield appeals from an order revoking probation. Facts: Appellant was charged in count I with assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)), and in count II with robbery (Pen. Code, § 211). On September 20, 1973, appellarit withdrew an earlier plea of not guilty and entered a pléa of guilty to count I. On motion by the Peo...
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Opinion Appeal from a judgment of conviction entered on a jury verdict finding defendant guilty of murder in the second degree. Facts Sometime after 10 p.m. on December 6, 1971, a Mr. Tyler who resided at 4166 South Wall Street in Los Angeles, observed three men in the street outside of his residence. One of the three was Jerzy Moreland, the victim in this case. When Mr. Tyler first saw t...
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Opinion Appellant appeals from an order denying his request to terminate child support payments for his son who reached the age of 18 years on May 29, 1974. The parties hereto were married May 18, 1945, and on March 24, 1-972, the court awarded an interlocutory judgment of dissolution of marriage, which was signed and entered on April 14, 1972. Custody of the son was awarded to respondent, an...
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Opinion Seidman & Seidman, a partnership of certified public accountants, sued Phillip J. Wolfson and Julian S. H. Weiner, who had combined their accounting practice (Wolfson, Weiner, Ratoff & Lapin) with that of plaintiff and had become partners in Seidman & Seidman. Allegedly the largest client of defendants’ firm was Equity Funding Corporation of America (“Equity Funding”), which had b...
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51 Cal. App. 3d 50 (1975) 123 Cal. Rptr. 880 CALIFORNIA NEWSPAPER PUBLISHERS ASSOCIATION, INC., et al., Plaintiffs and Respondents, v. CITY OF BURBANK, Defendant and Appellant. Docket No. 45944. Court of Appeals of California, Second District, Division Five. August 28, 1975. *51 COUNSEL Samuel Gorlick, City Attorney, and Richard L. Sieg, Jr., Senior Assistant City Attorney, for Defendant and Appe...
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*100 Opinion Convicted after a jury trial of sale of cocaine in violation of Health and Safety Code section 11352, appellant contends that the trial court improperly permitted a defense witness to refuse to answer various questions asked of him by claiming the Fifth Amendment privilege. He argues that: (1) the witness was immunized from prosecution by Health and Safety Code section 11367; and...
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Opinion On March 3, 1958, the superior court entered an interlocutory judgment of divorce between Nancy and James Wilson. Its judgment recited, among other things, that defendant James’ answer to Nancy’s complaint had been withdrawn and the matter would be heard as a default, that James must make monthly support payments to Nancy in a certain amount and that a property settlement agreement was “ap...
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*179Opinion On March 11, 1974, the Department of Motor Vehicles (appellant) revoked the driving privileges of William James Plomteaux (respondent) pursuant to Vehicle Code section 13352, subdivision (e). The revocation was for a period of three years and was based on the fact that respondent had suffered three previous convictions of driving a motor vehicle under the influence of intoxicating liqu...
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51 Cal.App.3d 65 (1975) 123 Cal. Rptr. 891 THE PEOPLE, Plaintiff and Respondent, v. LEROY WILLIAMS, Defendant and Appellant. Docket No. 26446. Court of Appeals of California, Second District, Division Five. August 28, 1975. *66 COUNSEL Eric Gantner, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney...
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Opinion Defendant appeals following conviction by jury of second degree murder. (Pen. Code, § 187.) The jury also found that in the commission of the offense, defendant used a firearm, a .22 caliber revolver. (Pen. Code, § 12022.5.) Prior to trial defendant entered a plea of guilty to a related charge of being a convicted felon in possession of a concealable firearm. (Pen. Code, § 12021.) Defen...
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*154 Opinion Appelant was found guilty of a violation of Health and Safety Code section 11352, possession of heroin for sale. The jury also found that appellant had a prior felony conviction, possession of marijuana. He appeals from the whole of this judgment. One Edward Faias, a narcotic user, approached appellant in a tavern and asked to purchase some heroin. Faias was a police informer w...
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Opinion In 1957 plaintiff, respondent herein, Eva Greene Day brought an action in the Superior Court of Los Angeles County to impress a constructive trust upon one-seventh of the residual estate of her stepmother, Mary Greene Wiswall, claiming that her stepmother had entered into an oral contract with Colonel Greene (plaintiff’s father and Mary’s husband) in which Mary agreed to leave her...
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