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All Reporters → cal-rptr → Volume 142

Opinions in cal-rptr Volume 142

Opinion In these consolidated actions, 1 Southern Pacific Transportation Company (Southern Pacific) appeals from adverse judg *769 ments entered on ten-two verdicts in favor of the tenants and owners, who sought property damages after Southern Pacific’s Kentucky Street warehouse (warehouse) was completely destroyed by a five-alarm fire on June 29, 2 On i...
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Opinion Defendant and appellant City of San Buenaventura (hereinafter City) appeals from a judgment granting a peremptory writ of mandate to compel City to pay salaiy and to follow certain personnel procedures on account of temporary military leave for plaintiff and respondent Darrell Bowers, a police officer and employee of City. Plaintiff is a member of the National Guard. He took temporary mil...
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Opinion In this proceeding the applicant seeks review for the purpose of challenging the method by which the graduated scale of Labor Code section 4658 was applied to her several injuries to arrive at the dollar amount of two awards. Our consideration of this case has twice been postponed to await a decision of the Supreme Court: Fuentes v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 1 [1...
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Opinion Plaintiffs-appellants, Ernest S. Brown and Charlotte J. Brown (hereinafter referred to as Brown) are owners of land located within the territorial limits of defendant-respondent City of Fremont (city). 1 The complaint alleged three causes of action in inverse condemnation. Respondents filed a motion for summary judgment on all three counts, which motion was granted and judgment entere...
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Opinion Defendant and Cross-complainant, General Telephone Company of California, appeals from an order of the Superior Court of Riverside County denying costs. Ellen Christina Young filed an action in superior court against General Telephone Company of California alleging damages in the *179 amount of $405,000 resulting from a collision between an automobile driven by plaintiff and a truck...
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Opinion Plaintiff Judy Ng appeals from a judgment denying her damages, entered on an adverse jury verdict, in her action for personal injuries. She argues that the judgment should be reversed because (1) the verdict was contrary to the evidence; (2) the court erroneously and prejudicially refused a requested instruction; and (3) the court allowed the jury to consider certain irrelevant ye...
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Opinion The issue raised by Marvin F., a minor, is whether an agreement entered into between the Alameda County Probation Department and the Alameda County District Attorney, establishing a procedure for the filing of petitions under Welfare and Institutions Code section 602, 1 is in conflict with the statutory scheme. The portion of the agreement relevant here, and challenged by petitioner...
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Opinion We granted an alternative writ of mandate to consider the validity of an order of the Superior Court of San Mateo County applying rule XIII of that court. *266 Betty Lou La Bue had commenced an action for the dissolution of her marriage to Richard G. La Bue. In her “Petition” she alleged that the following was community property subject to division by the court: “Fam...
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Opinion Francine Gallegos, Louise Patterson and the Camp Meeker Improvement Association have appealed from a judgment denying a writ of mandate to annul an order of respondent California State Board of Forestry which had approved a timber harvesting plan submitted by real party in interest Chenoweth Lumber Company (hereinafter Chenoweth). We reverse the judgment. The initial timber h...
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Opinion This is an appeal from an order of dismissal following the granting of a summary judgment. The plaintiff-appellant, Church, while operating a motorcycle, was involved in an accident with a motor vehicle operated by defendant Arko. Appellant joined as a defendant Vornado, Inc., doing business as Builders Emporium (respondent), alleging in his complaint that on November 11, 1975, the da...
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Opinion National Automobile and Insurance Company, appellant, filed its bail bond in the amount of $5,000 on behalf of defendant, Thomas Collins. After defendant failed to appear, bail was forfeited. A motion to set aside the forfeiture and exonerate bond was timely filed but was denied. This appeal followed. The pertinent facts are as follows: *304 On November 13, 1975, defendant failed ...
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Opinion United Teachers of Oakland, Local 771, AFT, AFL-CIO (Teachers) and one of its members, Robert Harter (Harter), appeal from a judgment denying their petition for a writ of mandate 1 to compel the Oakland Unified School District (District) and its governing board to reassign Harter to the school where he had taught before his sabbatical leave. Harter contends on this appe...
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75 Cal.App.3d 332 (1977) 142 Cal. Rptr. 111 A.B.C. FEDERATION OF TEACHERS, AMERICAN FEDERATION OF TEACHERS, LOCAL 2317, AFL-CIO et al., Plaintiffs and Respondents, v. A.B.C. UNIFIED SCHOOL DISTRICT et al., Defendants and Appellants. Docket No. 50574. Court of Appeals of California, Second District, Division Three. November 23, 1977. *334 COUNSEL John H. Larson, County Counsel, and Donovan M. Main...
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Opinion This is an appeal by the A.B.C. Unified School District, the Governing Board of A.B.C. Unified School District, and Charles W. L. Hutchison, superintendent of the A.B.C. Unified School District (hereinafter collectively referred to as District) from a judgment of the superior court granting a writ of mandate in favor of petitioners A.B.C. Federation of Teachers, American Federation of Tea...
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Opinion In January 1974 the decedent, 80-year-old Florence Sheldon, married 78-year-old Al Sheldon. About eight months later, on September 14, 1974, Florence died testate, she having drawn a valid holographic will on April 19, 1972, which, aside from some conditional specific gifts to her grandchildren, left her estate in equal shares to her two children by a prior marriage. They are peti...
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Opinion In 1972, Gerald R. Rodder and Vernon D. Pudwill (appellants) incorporated Transamerican Builders to invest in real estate development and general contracting. Each man had. a one-half interest in the business and each was authorized to pay the company’s bills. In February 1972, Dakota Gardens Apartment Investors “B” (Dakota “B”) *349 was formed by George Reed, Jack B....
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Opinion The instant appeal is taken by plaintiffs Norman D. Lattin and Harriett P. Lattin from “orders of the Superior Court . . . *379 denying plaintiffs’ motions for order that class action is proper and for order to notify class members of pending action.” Plaintiffs Lattin, pursuant to Revenue and Taxation Code sections 19051-19064, had filed with the Franchise Tax B...
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Opinion Defendant was convicted of second degree murder following a trial by jury and sentenced to state prison. He appeals, claiming error in the introduction of his confessions and admissions, failure of the prosecution to preserve available evidence for testing, in submitting an instruction on flight and other evidentiary rulings. We conclude after examination of the entire record that only ...
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20 Cal.3d 199 (1977) 571 P.2d 609 142 Cal. Rptr. 152 DALE C. WALTERS, Plaintiff and Appellant, v. ROBERT M. SLOAN et al., Defendants and Respondents. Docket No. L.A. 30517. Supreme Court of California. November 28, 1977. *201 COUNSEL Roy C. Zukerman for Plaintiff and Appellant. Robert J. Smith, Smith & Brissenden and Smith, Brissenden & Warner for Defendants and Respondents. Memering, Stu...
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Opinion Defendant Lorrie Sue McClary appeals from a conviction of first degree murder. (Pen. Code, § 187.) Among other contentions, defendant asserts that the trial court committed reversible error when it permitted the prosecution to introduce into evidence (1) certain portions of a tape-recorded statement made by defendant during *222 the course of police interrogation, and (2) a filmed “re...
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Opinion Proceeding to review recommendation of the Disciplinaiy Board of the State Bar (Bus. & Prof. Code, § 6083, subd. (a)) that petitioner be suspended from practicing law for one year and be required to comply with California Rules of Court, rule 955. Petitioner is charged with violating his oath and duties as an attorney (Bus. & Prof. Code, §§ 6067, 6068, 6103) in that he conver...
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Opinion The instant appeal is taken by the City of Oakland and by George Hart, its chief of police (hereafter, collectively, the City), from an order of the superior court directing issuance of a revised preliminary injunction calculated to restrain certain • police *295 practices in the enforcement of the state’s so-called anti-prostitution statute found in Penal Code section 647, subdivis...
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Opinion Beverly Joyce Gibson appeals from that portion of a judgment granting petitioner Michael Lynn Griffith visitation rights *468 with his son. The six-year-old Michael was born out of wedlock to these parties. These parents have never married; the father does not fulfill any of the conditions set forth in Civil Code section 7004 giving rise to the rebuttable presumption he is the natural...
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Opinion Ih a jury trial appellant was found to have committed first degree robbery and to have used a firearm during the commission of the offense. (Pen. Code, §§ 211, 211a, 12022.5.) He was sentenced to state prison. Appellant was one of three men who robbed Frank Fiori’s liquor store in Temple City at about 9:30 p.m. on April 16, 1976. As the three men stood at the cash register making purc...
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Opinion Defendant Kenneth Ray Haney was convicted by jury of false imprisonment, a felony (Pen. Code, §§ 236, 237), and simple assault (Pen. Code, § 240) as a lesser included offense of assault with a deadly weapon or with force likely to produce great bodily harm (Pen. Code, § 245, subd. (a)). He was sentenced to prison on the false imprisonment charge. Haney contends his conviction of fal...
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Opinion The People appeal from a minute order dismissing for lack of jurisdiction a grand jury accusation filed pursuant to Government Code section 3060 against Hulburt, a deputy sheriff, for willful or corrupt misconduct in office during the campaign for the 1974 election of the Sheriff of Humboldt County. Two questions are raised by this appeal: 1) whether as a deputy sheriff of a gener...
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Opinion The juvenile court found that appellant came within Welfare and Institutions Code section 602 by reason of having violated Penal Code section 245, subdivision (a) (assault with a deadly weapon), and Penal Code sections 664/211 (attempted robbery). The single issue on appeal is whether appellant was deprived of a fair hearing by reason of the failure of the prosecution to produce the w...
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75 Cal.App.3d 475 (1977) 142 Cal. Rptr. 201 DAWN HARLAND, a Minor, etc., et al., Plaintiffs and Respondents, v. THE STATE OF CALIFORNIA, Defendant and Appellant. [And four other cases.][*] Docket No. 38958. Court of Appeals of California, First District, Division Four. November 29, 1977. *479 COUNSEL Evelle J. Younger, Attorney General, Robert L. Bergman, Assistant Attorney General, Leonard M. Sp...
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*456 Opinion Appellant, who is Executive Director of the Redevelopment Agency of the City of San Pablo (herein Agency), has appealed from a judgment validating the proposed issuance of $10 million in revenue bonds to finance the Redevelopment Plan for the Oak Park Community Redevelopment Project initially adopted by the Agency and approved by the City Council of San Pablo in 1973...
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*516 Opinion A jury convicted defendant of rape, assault with intent to commit rape and assault with a deadly weapon. The court imposed consecutive prison sentences on all three counts. Facts Patrick and Nadezhda D. lived in room 231 of the Mark Twain Hotel at 1622 North Wilcox in Hollywood. Mrs. D. was 65 years old; she was suffering from Huntington’s Chorea, a movemen...
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Opinion Defendant Elizabeth Sanders was convicted by a jury of second degree murder and sentenced to prison. Facts 1 The factual background is this: Defendant is the mother of Rosetta Barney, who was married to but separated from the victim, Willie *504 Barney. In November 1971, Rosetta was hospitalized after being severely beaten by Willie. After Rosetta was released from the hospital,...
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Opinion —After a trial by jury, Edward James Radii appeals his conviction of a violation of Penal Code section 459 (burglary) and Penal Code section 245, subdivision (a) (assault with a deadly weapon). Appellant was found not guilty of violating Penal Code section 12022.5 (being armed with and using a firearm). The victim, Beverly Hemming (she was Beverly Pederson at the time of the crimes), ...
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Opinion This appeal challenges an order by which Crocker National Bank was given instructions as testamentary trustee under the will of John E. Bose, deceased, and the final account of the trustee was settled. John E. Bose executed his last will on March 10, 1959. He died, unmarried and without issue, more than one month but less than six months after that date. He was survived by a cousin (Henrie...
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Opinion Appellant appeals from a judgment of conviction of unlawful possession of marijuana, following denial of a Penal Code section 1538.5 motion to suppress evidence. The sole issue is whether “good cause” was shown to the magistrate to support a direction for night service of a search warrant as authorized by Penal Code section 1533. We hold under the circumstances of this case that good ca...
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Opinion Petitioners in these consolidated proceedings seek writs of mandamus directing respondent court to vacate its orders overruling petitioners’ demurrers to the 15th through 18th causes of action of real parties’ amended complaint against them, and to enter orders sustaining the demurrers. The underlying action arose out of an aircraft accident which occurred on or about Novembe...
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*612 Opinion Defendant-appellant East Bay Municipal Utility District (hereafter EBMUD) appeals from a judgment awarding plaintiff-respondent City of San Pablo (hereafter the city) the. sum of $53,446 which the city had previously paid to EBMUD for the purpose of relocating certain water facilities in the “South Entrance Redevelopment Project” area of the city. As will be sho...
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Opinion Petitioner seeks a writ of mandate directing the Fresno County Superior Court to vacate its order transferring a criminal action pending against him to the Superior Court of Stanislaus County and directing the Fresno County Superior Court to hold a hearing before entering a new transfer order. *650 Petitioner also seeks a writ of prohibition restraining the Superior Courts of Fresno...
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Opinion An alternative writ of mandate was granted in these proceedings to review the actions of respondent court in connection with the petitioner’s motions for discovery. Petitioner is charged by an amended complaint with attempted murder of Officer Munoz of the Oakland Police Department, with two counts of possession of firearms by an ex-felon (Pen. Code, §§ 12021 and 12500), with aggravatin...
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Opinion Plaintiff UFITEC, S.A. (UFITEC), a Swiss banking corporation, appeals from judgment in favor of defendant William H. Carter in an action to recover under Carter’s agreement to absorb losses incurred in a security trading venture. We affirm the judgment. Carter, a Los Angeles resident, was president of Kleiner Bell Realty Company, subsidiary of Kleiner Bell Company, Inc., a se...
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Opinion We face here the narrow question whether the instant criminal defendants 1 may obtain a discovery order directing the prosecutor to produce information relevant to defendants’ claim that a certain penal statute is being discriminatorily enforced against them. We conclude that under our decision in Murgia v. Municipal Court (1975) 15 Cal.3d 286 [124...
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Opinion The fundamental issue posed by this mandamus proceeding to compel the sustaining of a general demurrer of petitioner, the City of Los Angeles, to the third cause of action of the second amended complaint of the real party in interest, Northrop Institute of Technology, is whether the recently enacted Government Code section 905.1, eliminating the claim-filing requirement as a preco...
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Opinion HOPPER, J. On May 6, 1977, California Highway Patrol Officer John Davis observed petitioner’s vehicle traveling southbound on Highway 99 in Kern County. The automobile was in the fast lane and was weaving erratically in and out of the unpaved center divider. Officer Davis signaled the automobile over, and, after it stopped, asked petitioner to get out. No other passengers were in the ...
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*422 Opinion Donald Widener (hereinafter appellant) appeals from a judgment notwithstanding the verdict and from an order granting a new trial after a jury had awarded him damages on his complaint for libel against Pacific Gas and Electric Company (PG&E) and its employee, James C. Carroll (hereinafter respondents). The verdict against PG&E was in the amount ...
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Opinion As a result of a homicide committed January 27, 1975, the defendant was convicted of first degree murder with a finding of special circumstances which led to a sentence of death. On January 18, 1977, following the decision in Rockwell v. Superior Court (1976) 18 Cal.3d 420 [134 Cal.Rptr. 650, 556 P.2d 1101], the case was assigned to this court for disposition. On November 1, 1977, w...
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Opinion Petitioner seeks a writ of mandate to compel respondent court to vacate its order dismissing his suit as a class action and to grant his motion for class certification. According to the complaint in the underlying action, National Meat Packers, Inc., and other real parties in interest and their agents, sold falsely upgraded beef to Navy commissaries in San Diego County. The b...
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75 Cal.App.3d 523 (1977) 142 Cal. Rptr. 338 THE PEOPLE EX REL. JOHN K. VAN DE KAMP, as District Attorney, etc., Plaintiff and Appellant, v. AMERICAN ART ENTERPRISES, INC., et al., Defendants and Respondents. Docket No. 48235. Court of Appeals of California, Second District, Division One. November 30, 1977. *526 COUNSEL John K. Van de Kamp, District Attorney, Harry B. Sondheim, Donald J. Kaplan, T...
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Opinion Petitioner, City of Santa Barbara, appeals from the judgment dismissing its petition for a writ of mandate. The judgment was entered upon the sustaining of a demurrer to the petition without leave to amend. By its petition, the city sought a peremptory writ of mandate requiring respondent California Coastal Zone Conservation Commission (hereinafter Commission) 1 to process petitioner’...
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*642 Opinion Defendant was found guilty of possession for sale of marijuana, and appeals from the judgment. His challenge is to order denying motion pursuant to section 1538.5 Penal Code. 1 Around 11 p.m. Officers Ichikawa and Hernandez, plainclothes officers on duty and driving an unmarked police vehicle beige in color, observed a Toyota station wagon being driven by one Thomas, 2 and ...
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Opinion This is an appeal from a judgment of dismissal entered pursuant to Code of Civil Procedure section 581a on account of plaintiff’s failure to return the summons within three years. The question presented is whether a stipulation entered into by plaintiff’s attorney and a representative of defendant’s insurance carrier, granting defendant an open extension of time in which to plead,...
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Opinion Plaintiffs Dan and Vicky Doryon brought an action for specific performance against Marvin and Cecile Salant. After a court trial, judgment was entered in favor of defendants. 1 Facts This dispute involves residential property located at 6211 West Fifth Street in Los Angeles. Defendants retained Ginza Realty to sell the house. On August 20, 1974, plaintiffs signed...
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*754 Opinion On November 9, 1970, A. J. Industries, Inc. (A. J.) entered into a compromise and settlement agreement (hereafter settlement agreement) with its then president and chairman of the board Charles Ver Halen. The settlement agreement was to replace an existing employment contract between A. J. and Ver Halen. Ver Halen assigned his rights in the settlement agreement to th...
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Opinion Defendant, David L. Heilman, appeals from a judgment which: (1) incorporated the terms of an order permanently enjoining him from duplicating, advertising, shipping, or .transporting within the State of California magnetic tapes or disc phonograph records embodying any part of any recorded performance sold by A & M Records, Inc., without the consent of A & M Records, Inc., and (2)...
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Opinion Respondent was charged with misdemeanor drunk driving (Veh. Code, § 23102, subd. (a)) and with driving a motor vehicle without having a valid license (Veh. Code, § 12500, subd. (a)). The evidence against her was ordered suppressed on the theory that she was not “driving” a “motor vehicle.” The People appeal. *Supp. 5Facts A passing citizen saw respondent sitting on the curb next to a “mop...
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Opinion Appellant, Lionel P., requests that a referee’s order declaring him a ward of the juvenile court under Welfare and Institutions Code section 602 1 be set aside and that he be given a hearing de novo before a juvenile court judge pursuant to Welfare and Institutions Code section 252. 2 Relying on this court’s holding in In re Edgar *263 M...
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Opinion Plaintiff Nancy C. Vella brought this action to set aside a trustee’s sale, alleging that defendant Everett R. Hudgins, holder of a note secured by a second deed of trust on her residence, fraudulently induced her to default on the note, The question which we consider is whether the present suit is precluded by the prior adjudication of the fraud issue in an unlawful detainer action bet...
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Opinion In this case we consider whether a surgical resident in a private teaching hospital must be accorded notice of charges *270and an opportunity to respond, pursuant to the “common law right of fair procedure” (Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 555 [116 Cal.Rptr. 245, 526 P.2d 253] (Pinsker II)), prior to dismissal from the residency program. We conclude...
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Opinion Defendant City of Madera appeals from a judgment awarding plaintiffs approximately $73,000 for damages caused by the city’s operation of a sewage treatment plant near plaintiffs’ property. Recoveiy was on a nuisance theory. Plaintiffs cross-appeal from a *289 judgment on the pleadings for defendant on plaintiffs’ cause of action in inverse condemnation. We conclu...
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Opinion Appellant, the Pasadena Unified School District, appeals from a superior court judgment which denied, the district’s petition for a writ of mandate to set aside the decision of a Commission on Professional Competence. 1 The commission had found that the district had violated its own procedures and for that reason lacked cause to dismiss respondent, Sulochna Bedi, from h...
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*320 Opinion On application of Phillip James Hurlic for writ of habeas corpus we issued an order requiring the Director of the Department of Corrections to show cause why petitioner, an inmate of state prison, should not be discharged from confinement on the ground criminal proceedings leading to his 1969 conviction of murder in the first degree (see People v. Hurlic (1971) 14 Cal.App.3d ...
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Opinion This appeal is from the denial by the superior court of appellant’s petition for writ of prohibition/mandate challenging the jurisdiction of the municipal court in a prosecution of the appellant for violation of Penal Code section 270 (failure to provide for minor children). *835 On February 24, 1975, a criminal complaint was filed in the municipal court against appellant Arthur Mic...
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*675 Opinion Appellant is one of three defendants originally charged in a twenty-two-count information, from which twelve counts were severed for the instant trial: nine counts of armed robbery with use of a firearm, one count of kidnapping for purposes of robbery with use of a firearm, one count of armed burglary with use of a firearm, and one count of first degree murder. After a jury trial...
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Opinion In this mandate proceeding the Commission on California State Government Organization and Economy (commission) contends that the Political Reform Act of 1974 exempts it from promulgating a “Conflict of Interest Code” covering its appointive members. It seeks a writ directing the Fair Political Practices Commission (FPPC) to grant its claim of exemption. We hold that the commission is no...
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Opinion This appeal is taken from a judgment based upon a juiy verdict convicting appellant of inflicting upon a child unjustifiable physical pain and mental suffering under circumstances likely to produce great bodily harm or death, in violation of Penal Code section 273a, subdivision (1), and assault by means of force likely to produce great bodily injury in violation of Penal Code section 24...
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Opinion The trial court denied defendant A. Douglas Henderson’s motions to quash service of summons on him in Florida for lack of jurisdiction and to dismiss plaintiff Rosemaiy G. Lepera’s action against him in California for inconvenience of forum. We issued an alternative writ of mandate. Facts The motion papers (verified petition, verified complaint, and exhibits) show that d...
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Opinion Kim Elizabeth O’Hara appeals from a judgment of dismissal which was rendered after the court sustained a demurrer to her complaint for damages. Appellant seeks recovery from Western Seven Trees Corporation and others to compensate her for being raped. The complaint alleged two causes of action, The first claimed that respondents, the owners and operators of the apartment complex ...
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Opinion Plaintiff and appellant Ardath Drysdale appeals from a judgment of the Santa Clara County Superior Court denying her petition *348 for writ of mandate to compel the California Unemployment Insurance Appeals Board to set aside its decision denying unemployment compensation benefits. We affirm the judgment. Issue Is there substantial evidence to support the conclusion that plainti...
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Opinion This appeal is taken from a judgment entered upon a jury verdict in favor of plaintiff. The action is one for damages for personal injuries suffered as a result of an automobile accident. The sole issue presented in the appeal is whether the trial court erred in refusing to instruct the jury on the defense of assumption of risk. The case was tried subsequent to Li v. Yellow Cab Co. ...
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Opinion Liberty Mutual Insurance Company, a worker’s compensation insurer, intervened as a plaintiff in the case of Hott v. Southern Pacific Pipe Lines, Inc. (Super.Ct. No. 307838) which was then pending in the Superior Court of Santa Clara County. The case proceeded to trial and, after Liberty Mutual presented evidence, defendant moved for nonsuit. The court granted the motion and rendered jud...
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Opinion The ultimate issue herein is to what extent one attorney may represent both husband and wife in a noncontested *896 dissolution proceeding where the written consent of each to such representation has been filed with the court. Dale Klemm (hereinafter husband) and Gail Klemm (hereinafter wife) were married and are the parents of two minor children. They separated ...
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Opinion Respondent Jesus Quiroz Martinez was charged with assaulting a police officer with a deadly weapon in violation of Penal Code section 245, subdivision (b). As authorized by Penal Code section 1238, subdivision (a)(1), the People appeal from the superior court’s order of dismissal entered after the granting of respondent’s Penal Code section 995 motion and contend: “The 995 motion was er...
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Opinion In case No. 30185, defendant Carter appeals from the judgment following his conviction of one count of forgery (Pen. Code, § 470) and three counts of possession of a completed check with intent to defraud (Pen. Code, § 475a). In the same case, defendant Brown pleaded guilty to one count of forgery (Pen. Code, § 470) and appeals under Penal Code section 1538.5, subdivision (m), for a rev...
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75 Cal.App.3d 882 (1977) 142 Cal. Rptr. 521 PUBLIC EMPLOYEES OF RIVERSIDE COUNTY, INC., Plaintiff and Respondent, v. COUNTY OF RIVERSIDE et al., Defendants and Appellants. Docket No. 17631. Court of Appeals of California, Fourth District, Division Two. December 14, 1977. *884 COUNSEL Ray T. Sullivan, Jr., County Counsel, and Steven A. Broiles, Deputy County Counsel, for Defendants and Appellants....
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Opinion During the period March 13, 1970, through March 16, 1970, many civil service employees engaged in a strike against the City and County of San Francisco (City), a charter city. The City thereafter denied its employees “sick leave with pay” during the period *905 of the strike, except upon “a physician’s written certificate stating that the physician had personally exam...
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75 Cal.App.3d 928 (1977) 142 Cal. Rptr. 532 THE PEOPLE, Plaintiff and Respondent, v. EMMETT LOVE, JR., Defendant and Appellant. Docket No. 16381. Court of Appeals of California, First District, Division Three. December 15, 1977. *931 COUNSEL Geoffrey J. Etnire, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assist...
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Opinion This proceeding for a review of a determination of the Workers’ Compensation Appeals Board raises a narrow issue of application of the “commercial traveler rule.” We apply a liberal interpretation of the rule as mandated by Wiseman v. Industrial Acc. Com. (1956) 46 Cal.2d 570 [297 P.2d 649]. Accordingly, we uphold a determination of the board finding that a worker killed in an autom...
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*324 Opinion After an unsuccessful motion to suppress under Penal Code section 1538.5, the defendant was found guilty of robbery in the first degree. The Robbery Mrs. Barnhill and her daughter, Sainna Okeson, were seated at the kitchen table in Mrs. Barnhill’s apartment on Keel Street in Anaheim on the evening of August 2, 1976. Around midnight, a black man entered. With pistol in hand, h...
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Opinion The Director of the California Department of Industrial Relations (hereinafter Director) and the Division of Industrial Safety (hereinafter Division) appeal from an order of the superior court denying their petition for writ of mandate. The question is whether a citation issued by the Division more than two months after one of its representatives inspected the site of a fatal, work-related...
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*215 Opinion This case involves the problem of the unsettled settlement. Plaintiff-appellant Mariann Gregory (hereafter appellant) appeals from an order of the Santa Clara County Superior Court, compelling enforcement of a compromise settlement and awarding her judgment against defendant-respondent (hereafter respondent) Robert L. Hamilton, in the sum of $7,500. 1 The ...
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Opinion Jack Percy Shaffer appeals from a judgment denying a writ of mandate to annul an order of respondent Department of Motor Vehicles suspending appellant’s driver’s license for refusal to submit to a chemical test of blood alcohol content as required by Vehicle Code section 13353. It is conceded by the Attorney General that the holder of a motor vehicle operator’s license is deemed to have co...
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*239 Opinion Petition for writ of mandate to require respondent court to vacate its order denying petitioner’s motion for Summary judgment and to enter a new and different order granting said motion. We granted an alternative writ. Facts: Real party in interest, Perry Dean Motsinger, was injured by the alleged malfunction of a certain blow-molding machine and alleged th...
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78 Cal.App.3d 316 (1978) 142 Cal. Rptr. 572 THE PEOPLE, Plaintiff and Respondent, v. GREGORY ANTHONY HOPKINS, Defendant and Appellant. Docket No. 31116. Court of Appeals of California, Second District, Division Five. March 7, 1978. *318 COUNSEL Paul Halvonik, State Public Defender, under appointment by the Court of Appeal, Charles M. Sevilla, Chief Assistant State Public Defender, and Edward H. S...
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Opinion The central issue on this appeal is whether a telephone company must bear the cost of relocating underground facilities it maintains in street rights-of-way where relocation is necessitated by *961 vacation of the streets in furtherance of a redevelopment project under the Community Redevelopment Law (Health & Saf. Code, § 33000 et seq.). For reasons expressed be...
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Opinion Defendants Daugherty and Sheehan appeal from a judgment declaring that there exists a public easement for recreational purposes over certain property owned by them. With a modification requested by the city and state, we affirm the judgment. Defendants own property, in the City of Long Beach, located on the ocean beach of that city. Originally, the state’s answer sought to determine t...
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Opinion Defendant appeals 1 from a judgment of conviction entered on a jury verdict finding him guilty of grand theft, in violation of Penal Code section 484. He contends that: 1) the court abused its discretion in refusing him a reasonable continuance and thereby forcing him to stand trial in the face of uncontradicted testimony that his physical and mental condition precluded him from being...
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Opinion While the appeal of petitioner, Gust D. Mazoros (1 Crim. No. 14832) was pending in this court and calendared for oral argument on October 11, 1977, a petition for a writ of habeas corpus was filed and summarily denied. Thereafter, on September 26, 1977, Mazoros filed his petition for a writ of habeas corpus with the state Supreme Court. On October 6, 1977, the Supreme Court issued an or...
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Opinion Petitioners seek a writ of mandate to compel respondent court to vacate its order sustaining without leave to amend the Ford Motor Company’s demurrer to their causes of action seeking recovery in strict liability and warranty for physical injuries resulting from emotional shock suffered in witnessing the infliction of injuries and death upon close family members. We have concluded that pe...
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Opinion In 1972, petitioner pleaded guilty to burglary and was placed on probation. In 1973, he pled guilty to another burglary, his probation was revoked, and he was sent to CRC. He has now spent approximately four years in and out of CRC. Theoretically, he can be under the jurisdiction of the program for another three to five years. (Welf. & Inst. Code, § 3201.) In the meantime, the new...
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Opinion The minor plaintiff, Jeffrey S. II, appeals from a trial court order granting the motion of defendant Jeffrey S.—the minor’s alleged father—to vacate an order in a paternity action. *67 Facts In 1968, the then unborn minor filed a paternity action against defendant through a guardian ad litem. Defendant’s father was also named as a party defendant. At the time, defendant, too, was...
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Opinion Defendant Roy Joseph Broce was convicted by a jury of violating Penal Code section 137, in that by force or threat of force he attempted to induce a person about to be called as a witness to give false testimony or withhold true testimony. Facts In January 1976, Carol Weinald and her boyfriend were sitting in a parked car in front of Carol’s house. She saw a 1965 orange or gold colo...
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Opinion Appeal by a juvenile, Leonard R., who was committed to the California Youth Authority after the juvenile court found he had participated in a robbery and was thus a delinquent pursuant to Welfare and Institutions Code section 602. At the disposition hearing, there was a disagreement between Leonard’s counsel and the court over whether Leonard’s accomplice in the robbery had u...
Views: 4
76 Cal.App.3d 106 (1977) 142 Cal. Rptr. 635 Estate of ALBERT A. BERGES, Deceased. EVELYN FELIZ, Petitioner and Appellant, v. ISABEL THOMPSON, Individually and as Executrix, etc., et al., Claimants and Respondents. Docket No. 3289. Court of Appeals of California, Fifth District. December 21, 1977. *107 COUNSEL Young, Wooldridge, Paulden & Self and Joseph Wooldridge for Petitioner and Appellant...
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Opinion The determinative issue herein is whether the language of paragraph Fourth of the will of the decedent, Albert A. *108Berges, created valid testamentary trusts in favor of the children of Isabel Thompson (Isabel), Jim Feliz (Jim) and Josephine Feliz Dawson (Josephine). Paragraph Fourth states: “Fourth: I do hereby give, devise and bequeath to Evelyn Feliz the sum of $5,000.00 cash, and any...
Views: 0
Opinion Appellant was convicted, after a jury trial, of fraudulently obtaining aid to families with dependent children (Welf. & Inst. Code, § 11483) and perjury (Pen. Code, § 118). On appeal she contends that the prosecution failed to prove an essential element for conviction under Welfare and Institutions Code section 11483 and that her right to a speedy trial was violated. We consider t...
Views: 2
Opinion Warburton C. Webb, Jr. appeals from a judgment determining entitlement to estate distribution which required him to elect between either taking under the will of his deceased father or as his surviving joint tenant. Warburton C. Webb died testate on March 19, 1976. He left surviving him his two children, Warburton C. Webb, Jr. and Elizabeth W. North. His will, which he signed on Decem...
Views: 0
Opinion This is an appeal from a defendant’s summary judgment granted on the theory that plaintiff’s cause of action is barred by the statute of limitations. Concluding that, despite defendant’s absence from the State of California for a period of about two weeks, Vehicle Code section 17463 does not toll the statute, we affirm the judgment. As we must in dealing with an appeal from a summary ...
Views: 4
Opinion Defendant was charged with indecent exposure, in violation of subdivision 1 of section 314 of the Penal Code. After a trial by jury, he was found guilty; proceedings were suspended and he was granted probation. He has appealed; we reverse. The case for the People was that, at about 6:30 a.m., he was observed by a plainclothes police officer masturbating in a public alley. His defense ...
Views: 4
*179Opinion This mandate proceeding was brought to review an order of the superior court requiring the joinder of an additional party plaintiff at the commencement of a new trial on the issue of damages only. The underlying superior court action was brought by petitioners (hereinafter plaintiffs) against General Motors Corporation (hereinafter defendant) for damages for negligent injury to an air...
Views: 0
Opinion Petitioner, State Compensation Insurance Fund, is the insurance carrier for the Alameda-Contra Costa Transit District, which employs respondent Preston McDowell, the injured employee here involved, Petitioner seeks review and annulment of an en banc decision of the Workers’ Compensation Appeals Board (hereafter Board) denying credit for medical-legal costs against petitioner’s liabili...
Views: 2
Opinion Appellant was convicted following trial by jury of burglary in the first degree and four counts of robbery in the first degree, The sole contention on appeal is that the trial court prejudicially erred in failing to instruct the jury about the credibility of witnesses at the close of argument even though it had instructed the jury on this subject three days earlier, following the openin...
Views: 9
*210 Opinion After a jury trial appellant was convicted of sale of heroin (Health & Saf. Code, § 11352) and was sentenced to state prison. In March 1975, Debra Foster, who had used heroin in the past in appellant’s presence, acted for the San Luis Obispo Sheriff’s office as an undercover purchaser of heroin from appellant, in return for the dropping of forgeiy charges agains...
Views: 8
Opinion district attorney filed an information charging both defendants with the attempted murder of Reginald Morris. Defendant Broussard was also charged with a violation of Penal Code section 12021. Defendants appeal from judgments following juiy verdicts finding them guilty of attempted involuntary manslaughter, as a lesser included offense within the offense of attempted murder. Stateme...
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Opinion —The case at bench raises the issue of the consequences to retrial of an appellate reversal and remand for “proceedings consistent with the views expressed” in the appellate opinion. We conclude: (1) where the appellate opinion uses the phrase to incorporate by reference portions of the body of the opinion into the pronouncement of appellate judgment, the trial court, on retrial, ...
Views: 9
Opinion Introduction This is an appeal from a judgment in a consolidated trial on two cross-complaints for declaratory relief arising out of the refusal of cross-defendant (USF&G) to defend two third party lawsuits brought against the cross-complainant and appellant, Fresno Economy Import Used Cars, Inc. The third party suits are based on a sale and a lease of two automobiles by appe...
Views: 11
Opinion I. Introduction This appeal is from a judgment in favor of an assistant public defender against a citizens’ group and the editor of its newsletter for defamatory statements printed in the newsletter. The principal issue before us on appeal is whether an assistant public defender is a public official within the meaning of New York Times Co. v. Sullivan (1964) 376 U.S. 254 [11 L.Ed.2d 686, 8...
Views: 27
*357 Opinion Plaintiff Phil L. Wood appeals from a judgment of dismissal 1 entered following the sustaining, without leave to amend, of defendants’ general demurrer to his amended complaint on the ground that said complaint was filed after the expiration of the applicable period of limitations. In April 1971 plaintiff filed an action (SO C 25238) against Walter an...
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Opinion Stephen Gray filed a complaint against James Reeves, M.D., and McKesson Laboratories alleging negligence occasioned by his use of a drug called prednisone. After Gray’s depositions were taken, Reeves and McKesson moved for summary judgment on the grounds the complaint was barred by the statute of limitations. The motion was denied but was renewed six months later. This second moti...
Views: 12
Opinion In 1962, Sacramento County, at the request of plaintiffs’ predecessor in interest, reclassified plaintiffs’ land from A-l-C (agriculture zone) to C-l (limited commercial zone). The zoning reclassification was reduced to agreement form prior to adoption of the ordinance amending the zoning classification. That agreement, as recorded, contained a condition that alcoholic beverages would n...
Views: 3
Opinion Plaintiff noticed his appeal from the minute order granting the motion for summaiy judgment. Section 904.1 of the Code of Civil Procedure sets out what orders and judgments of the superior court are appealable. Neither a final judgment nor an appeal-able order has been entered in the instant case. An order granting a motion for summary judgment is a nonappealable order. (Zetterberg v....
Views: 11
Opinion Appellant has appealed from a judgment of imprisonment entered on jury verdicts which found her guilty of murder in the second degree, aggravated by the use of a firearm in the commission of the offense. The victim died from wounds inflicted by the appellant’s sister. She shot him with her own weapon in response to an appeal that she do so from the appellant. At the time the appellant w...
Views: 2
76 Cal.App.3d 119 (1977) 142 Cal. Rptr. 735 UNITED CLERICAL EMPLOYEES, LOCAL 2700 et al., Plaintiffs and Respondents, v. COUNTY OF CONTRA COSTA et al., Defendants and Appellants. Docket No. 39641. Court of Appeals of California, First District, Division Two. December 22, 1977. *122 COUNSEL John B. Clausen, County Counsel, and E.V. Lane, Jr., Deputy County Counsel, for Defendants and Appellants. G...
Views: 1
*203 Opinion Two petitions for habeas corpus and an appeal from a judgment committing Larry Steven Wolfenbarger to state prison for a violation of probation raise the identical issue of a convicted defendant’s entitlement to “back time credit” for periods spent in a “residential” private drug treatment program required as a condition of probation. We conclude: (1) Penal Code sect...
Views: 8
Opinion In this appeal, two cases involving substantially identical facts and issues of law have been consolidated for consideration by this court. The appeal in both cases is from a judgment denying a petition for writ of mandate sought by the nominal appellant, Santa Barbara Federation of Teachers, Local 1081, on behalf of several individual petitioners (hereinafter petitioners) who are...
Views: 2
Opinion Bernard Reich, attorney of record for Albert Pepper, the representative plaintiff in a class action against real party in interest, was removed as counsel by reason of a trial court determination of a conflict of interest. A petition to this court for an alternative writ reviewing that order was denied for unclean hands. Albert Pepper died leaving a will designating Reich as a co-execut...
Views: 1
Opinion —Defendants appeal from a post-judgment order awarding $170,000 as reasonable attorneys’ fees to plaintiffs’ 1 attorneys. They challenge the propriety of the award per se and as to amount. We affirm the order. Plaintiffs are the Coalition for Los Angeles County Planning in the Public Interest, Sierra Club, Malibu Township Council, Inc., Palos Verdes Coast Watch and...
Views: 8
Opinion The trial court on April 13, 1977, ordered a writ of mandate issue commanding the Department of Health of the State of California (the Department) to determine that a proposed site for relocation of the Bakersfield Community Hospital (the Hospital) facility is adjacent to the existing facility, and thus the hospital is exempt from having to obtain a certificate of need from the Department...
Views: 0
Opinion Plaintiff, State Franchise Tax Board (hereafter Board), appeals from a. judgment, following trial to the court, denying *347 priority under Revenue and Taxation Code section 26312, subdivision (a), 1 to its tax claim as against defendant, Credit Managers Association of Southern California (hereafter CMA), with respect to the proceeds of certain assets assig...
Views: 0
Opinion Defendant appeals from a judgment of the superior court, entered on his plea of guilty. He was granted a certificate of probable cause to enable him to raise, in this court, the issue of the jurisdiction of the superior court to act on an indictment charging him with conspiracy to sell narcotics and the sale of narcotics. We conclude that the superior court had jurisdiction to proceed o...
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Opinion The wife appeals from the portions of an interlocutoiy decree of dissolution that held valid an antenuptial agreement between the parties and distributed property in accordance with that agreement. We affirm. *359About 15 minutes prior to their marriage, the parties executed an antenuptial agreement, drawn by an attorney for the husband. Although signed by both parties, the agreement was ...
Views: 3
Opinion This is an appeal from a judgment of the superior court ordering a peremptory writ of mandate to issue compelling appellant to hear respondent’s appeal from his dismissal as a youth counselor with the Department of the Youth Authority. On October 31, 1974, respondent was placed on administrative leave of absence from the Department of the Youth Authority. The leave provided for a 15-day su...
Views: 3
Opinion Appelant appeals from the judgment of the trial court denying his petition for a writ of mandate directing respondent to set aside and vacate its order that appellant desist and refrain from performing certain activities 1 without first obtáining a real estate license. The issues framed by the pleadings were tried below upon the administrative record and the briefs file...
Views: 2
Opinion In this appeal we determine the application of Penal Code section 2900.5 in a complicated, broken plea bargain case. 1 Stated as simply as possible, defendant, Irving Schuler, was arrested in Oakland, California, on October 1, 1969. Between that date and April 21, 1970, and while defendant remained in custody, six separate felony informations were filed in the Alameda County Superio...
Views: 12
Opinion Defendant Donald Carey Freeman appeals from a judgment following a juiy conviction of robbery (Pen. Code, § 211) fixed by the court as second degree, and first degree burglary (Pen. Code, § 459). Defendant was sentenced to the Youth Authority on the burglary conviction; sentence on the robbery conviction was stayed, the stay to become permanent upon completion of sentence on the b...
Views: 28
Opinion Plaintiff William A. Covino appeals from an adverse judgment rendered in an action brought for mandamus, declaratory and injunctive relief. The facts leading to the dispute are virtually undisputed, and may be summarized as follows: Covino was hired by respondent (hereafter District) on September 17, 1975, as a certificated employee to teach in the English Department of Diablo Valley ...
Views: 2
*340Opinion This is an appeal from a judgment of dismissal after respondents Paris’ demurrer to appellant City of Santa Clara’s amended complaint was sustained without leave to amend. The second amended complaint, in two causes of action, sought to enforce a condition contained in a variance granted to respondents by appellant. The first cause of action sought to enjoin respondents from acting in...
Views: 0
*497 Opinion In 5 Criminal No. 2854 petitioner herein purported to appeal from an order of the Superior Court of Kings County denying petitioner’s application for a writ of habeas corpus, a nonappealable order. (In re Hochberg (1970) 2 Cal.3d 870, 876 [87 Cal.Rptr. 681, 471 P.2d 1].) Thereafter, we ordered the appeal dismissed, but, because the transcript of the eviden...
Views: 5
Opinion After a jury trial in the Superior Court of Fresno County, appellant Larry Apodaca was convicted of the murder of a human fetus (Pen. Code, § 187); 1 the jury determined that the murder was of the second degree (§ 189). He also was convicted by the jury of rape by threats of great and immediate bodily harm (§ 261, subd. 3), and of assault by means of force likely to produce great bodi...
Views: 17
*401 Opinion Plaintiff, Donald F. Eldridge, the purchaser of some 750 acres of land, and Marian T. Eldridge, his wife, have appealed from an adverse judgment in an action in which they sought a decree compelling the defendants, Alyce Lee Bums (the seller of the property and payee of a note secured by a deed of trust, for the balance of the purchase price), Emmett Bums (her husban...
Views: 7
Opinion The principal issues of this appeal concern administrative procedure, and criteria for judicial review, in relation to determinations of “local agency formation commissions” organized and functioning under authority of the Knox-Nisbet Act (hereinafter sometimes the Act), which is codified as Government Code sections 54773-54799.5. The Act provides that there shall be a local ...
Views: 13
*463 Opinion The pivotal question presented in this proceeding is whether the 10-day period mentioned in section 859b of the Penal Code 1 for holding a preliminary examination for a defendant in custody may be extended by the magistrate for good cause without the defendant’s consent. At all times pertinent to this proceeding section 859b read as follows: “At the time the defendant appears b...
Views: 9
Opinion Death penalty case transferred from the Supreme Court 1 for modification of the sentence to life imprisonment in accordance with Rockwell v. Superior Court (1976) 18 Cal.3d 420 [134 Cal.Rptr. 650, 556 P.2d 1101]. The grand jury returned an indictment charging first degree murder of a police officer using a firearm; assault with a deadly weapon; kidnap; a second assault with a dead...
Views: 19
Opinion Appellant Peerless Stages filed a. complaint for injunctive relief against respondent Santa Clara County Transit District and its director. Pursuant to stipulation, a first amended complaint was filed adding causes of action for damages and fraud. After trial by the court without a jury, judgment was entered for respondents and this appeal followed. Appellant is a bus company operating in ...
Views: 0
Opinion Hill Sayble and Sayble and Raphael, a professional corporation, appeal from a judgment in favor of Frances Feinman construing the terms of payment in a contingent fee retainer agreement between appellant attorneys and respondent client. Facts: Respondent Frances Feinman retained appellant attorneys to represent her claims arising out of the wrongful death of her husband....
Views: 7
Opinion This case was certified for transfer to this court under rule 63 of the California Rules of Court, after the Appellate Department of San Joaquin County Superior Court ruled that the municipal court should have granted defendant’s motion to suppress evidence. Defendant is charged with use of heroin, a misdemeanor (Health & Saf. Code, § 11550). *562I The following “Settled Statement of Fact...
Views: 9
20 Cal.3d 327 (1977) 572 P.2d 1128 142 Cal. Rptr. 904 ENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs and Appellants, v. EAST BAY MUNICIPAL UTILITY DISTRICT et al., Defendants and Respondents; COUNTY OF SACRAMENTO, Intervener and Appellant. Docket No. S.F. 23422. Supreme Court of California. December 20, 1977. *330 COUNSEL Thomas J. Graff, Morrison, Foerster, Holloway, Clinton & Clark, M...
Views: 2
Opinion —This appeal primarily raises the applicability of the “welfare exemption” from property taxation to facilities used by a nonprofit corporation for theatrical and musical presentations by professional performers. Compelled by the broad rule of decision employed in Stockton Civic Theatre v. Board of Supervisors (1967) 66 Cal.2d 13 [56 Cal.Rptr. 658, 423 P...
Views: 1

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