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All Reporters → cal-rptr → Volume 174

Opinions in cal-rptr Volume 174

*479 Opinion Defendant Transamerica Insurance Company appeals from a summary judgment granted to plaintiff Overland Plumbing, Inc. in the sum of $32,067.88 plus interest and costs upon a loss covered by a policy of theft insurance. Transamerica does not dispute the facts that Overland suffered a loss, that its claim was timely filed, nor that it was covered by the policy, but vig...
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Opinion The City of San Diego (City) applied for a permit from the San Diego Coast Regional Commission to realign and widen a portion of Carmel Valley Road adjacent to the Los Penasquitos Lagoon. 1 The regional commission approved the permit subject to conditions that limited the improvement of the road to two lanes and a bike path and required restoration of wetlands in an amount equal to tw...
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Opinion Defendants Kenny Wayne Takencareof and Jeffrey Don Blomdahl appeal from judgments sentencing them to prison for second degree burglary. The burglary for which they were sentenced was the first of three crimes perpetrated on the same evening against the St. Clair office building in Bakersfield. Two separate entries were made with the intent to commit larceny; finally the building was e...
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Opinion This case involves an attempt by a widow to enforce a claimed “Marvin-type” agreement 1 with respect to a period of years during which she and her late husband lived together before they were married. *346 Facts Barbara and Jim Fincher were married on March 5, 1976, a little less than two years before Jim’s death on January 1, 1978. Barbara and Jim ha...
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Opinion This is an appeal from a judgment of dismissal entered after the demurrer of respondent City of Sacramento (City) to appellants’ class action complaint was sustained without leave to amend. The sole issue on appeal is whether the provisions of article XIII A of the California Constitution, prohibiting a city from enacting an ordinance imposing a transaction or sales tax on the sale of...
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Opinion Petitioner City of Los Angeles (City) contends that the Workers’ Compensation Appeals Board (WCAB) has erred in finding that respondent Morris Rivard (hereinafter also applicant) sustained injury arising out of and occurring in the course of his employment. Applicant is employed by City as a police officer. Applicant has developed severe psychiatric problems as a consequence of th...
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Opinion The National Life and Accident Insurance Company (hereinafter referred to as National) filed a complaint in interpleader *330against appellants Faylease Edwards and Johnnie M. Glass. Under the terms of the complaint, respondent paid into court the sum of $8,365.96 as the death benefit due on the life of the insured, William C. Edwards, and asked the court to determine the respective right...
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Opinion Plaintiff appeals from a judgment dismissing her wrongful death action against defendant physicians after the trial court sustained a demurrer to the complaint, without leave to amend, based upon the running of the statute of limitations on plaintiff’s action. We affirm. Background: Plaintiff is the widow of Robert A. Braham, who died on March 29, 1978, at a hospital. Plaintiff alle...
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Opinion Statement of the Case On February 22, 1979, plaintiff A. J. Setting Company, Inc. (Setting), a subcontractor, filed a first amended complaint alleging that defendant Skipper & Company (Skipper), a general contractor, owed a balance of $24,613.64 under a labor and materials supply contract executed on April 21, 1977, by the two parties. Defendant Skipper contracted on April 13...
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Opinion This is an appeal by the People from an order of the superior court dismissing charges against respondents on the basis that *388 the only evidence supporting the charges had been suppressed at a special hearing. (Pen. Code, § 1238, subd. (a)(7).) The question presented, apparently one of first impression in this state, is whether the fruits of a probationary search ...
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Opinion Plaintiff, Pasadena Hotel Development Venture (Holiday Inn) (hereafter taxpayer), appeals from a minute order in favor of defendant, City of Pasadena (hereafter City), denying taxpayer a refund of certain personal property taxes erroneously assessed by the City to the taxpayer. The basis for this denial is the asserted untimeliness of the taxpayer’s claim for refund. The sole...
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*90 Opinion Terry S., a minor, appeals from an order continuing him a juvenile court ward after it was found he had received stolen property. 1 (Pen. Code, § 496.) He contends (1) the evidence is insufficient to sustain the petition, (2) error in the admission of hearsay evidence as an adoptive admission, (3) he is entitled to predisposition behavior credits, and (4) error in denying his re...
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I respectfully dissent. A close review of the record in light of governing principles inexorably warrants the conclusion that the failure to grant a new trial on the grounds of legal errors constituted a prejudicial abuse of discretion requiring reversal. Against an evidentiary background strongly probative of respondent’s actionable fault, the manifest instructional and procedural errors loom wei...
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Opinion Robert Speaks was convicted by jury of receiving stolen property (Pen. Code, § 496, subd. 1) and was granted probation. He appeals, meritoriously contending the court prejudicially erred in refusing to give a proffered jury instruction. We need not examine his contention the court put undue pressure on the deadlocked jury to arrive at a verdict. Speaks had been employed at the San Die...
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*459 Opinion Appellant was convicted of rape (Pen. Code, § 261, subds. 2, 3); robbery (Pen. Code, § 211); and kidnaping (Pen. Code, § 207); and with the use of a dagger in the commission of the first two offenses (Pen. Code, § 12022, subd. (b)). On his appeal, he contends that numerous instances of prosecutorial misconduct by the district attorney combined with “inappropriate conduct” by his ...
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Opinion Donald Wesley appeals the denial of his petition for mandate. The issue is whether his employer, the City of Los Angeles, was entitled to reduce his disability retirement pension by the amount of his workers’ compensation award. Wesley was employed as a Los Angeles police officer from May 1955 until August 1972, when at the age of 39 he was found to be suffering from a disabl...
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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 68 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 69 OPINION The Controller appeals from a judgment of the superior court, contending that the trial court erred in det...
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Opinion The Controller appeals from a judgment of the superior court, contending that the trial court erred in determining the nature of interests in certain real and personal property conveyed by decedent, Seth McKenna, to his sisters, Mary Parvin and Emma Eugenia McKenna. Specifically, the Controller asserts that Seth McKenna’s will conveyed life estates coupled with general powers of appointme...
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Opinion A jury found defendant guilty of attempted robbery and two counts of assault with a deadly weapon. Defendant, having entered a plea of not guilty by reason of insanity, was also found to be sane at the time of the commission of the offenses. We affirm. Defendant does not attack the sufficiency of the evidence. Briefly stated, that evidence established that defendant approache...
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Opinion Plaintiffs appeal from a judgment entered on a jury verdict for defendant State of California (hereafter State) and against plaintiffs in their action for damages for personal injuries sustained in a vehicle-pedestrian collision. For reasons which appear, the judgment is affirmed. The collision occurred January 2, 1977, at about 12:15 p.m. on a steep and icy portion of State ...
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119 Cal.App.3d 947 (1981) 174 Cal. Rptr. 100 THE PEOPLE, Plaintiff and Respondent, v. SHARON LaJOCIES et al., Defendants and Appellants. Docket No. 20580. Court of Appeals of California, First District, Division One. April 30, 1981. *951 COUNSEL John C. Schaller for Defendants and Appellants. George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Edward P. O...
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Opinion This is an appeal from judgments of convictions entered upon appellants’ guilty pleas: appellant Sharon LaJocies (hereinafter Sharon) of possession of a concealable weapon by a felon (Pen. Code, § 12021, subd. (a)), and appellant Ronald LaJocies (hereinafter Ron) of possession of a slungshot (Pen. Code, § 12020, subd. (a)). Before entering guilty pleas, appellants challenged the search of ...
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*962Opinion George W. Thomas appeals from a judgment of conviction1 based on a jury finding him guilty of burglary, two counts of robbery, rape and assault with a deadly weapon. (Pen. Code, §§ 459, 211, 261 and 245, subd. (a).) After a trial held in October 1977, in which the jury was unable to reach a verdict and a mistrial was declared, a retrial commenced on September 11, 1979. Appellant moved ...
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Opinion Introduction Danny E. was declared a ward of the court (Welf. & Inst. Code, § 602) upon the finding that he had participated in a voluntary man *47 slaughter (Pen. Code, § 192, subd. 1) in which a firearm had been used (Pen. Code, § 12022, subd. (a)) after which he was committed to the California Youth Authority. He appeals the order of wardship and commitment. ...
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119 Cal.App.3d 670 (1981) 174 Cal. Rptr. 136 LAGUNA ROYALE OWNERS ASSOCIATION, Plaintiff and Respondent, v. STANFORD P. DARGER et al., Defendants and Appellants. Docket No. 21950. Court of Appeals of California, Fourth District, Division Two. May 28, 1981. *672 COUNSEL Layman, Hanson, Jones & Voss, Rondell B. Hanson and Steven H. Sunshine for Defendants and Appellants. Feldsott & Lee, Fel...
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Opinion These consolidated writ matters arise out of a confrontation between a litigant’s right to discovery and the privacy rights of a person not party to that litigation. Plaintiff in the underlying suit is a woman who claims injury as a result of her mother’s ingesting the drug diethylstilbestrol (DES) while plaintiff was in útero. Named as defendants are a number of pharma...
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Opinion The Board of Trustees of Leland Stanford Junior University (University), James B.D. Mark, M.D., chairman of the department of surgery of the University’s medical school, and John J. Schwartz, counsel for medical affairs and assistant vice president of the University, have petitioned this court for an extraordinary writ of mandate. They seek thereby annulment of an order of the sup...
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Opinion Petitioner Mediterranean Exports, Inc., a Florida corporation (Mediterranean), is the defendant in an action pending in respondent court. Real party in interest Harvard Investment Company, a California corporation (Harvard Investment), is the plaintiff. Mediterranean filed an answer and a cross-complaint in the action. Harvard Investment moved for an order striking both pleadings ...
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Opinion The City of Beverly Hills (hereinafter City) and its city council appeal from a judgment granting petitioner Beverly Hills Firemen’s Association, Inc. (hereinafter Association) a peremptory writ of mandate commanding the City to (1) recompute the salaries being paid to the members of the Association for the fiscal year ending June 30, 1978, so as to add an additional 1.4 percent s...
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Opinion Petitioner Kenneth H. Rowen, an attorney, seeks review and annulment of an en banc order of the respondent Workers’ Compensation Appeals Board (WCAB) 1 adjudging him in contempt of the WCAB and ordering him to pay a fine of $500. Simply stated, petitioner contends that the finding of contempt should be annulled by this court as; (1) petitioner was denied a speedy determ...
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Opinion Defendant Antonio Bracamonte appeals from the judgment of conviction of burglary (Pen. Code, § 459). The main issue on appeal is whether defendant was entitled to a bifurcated trial on the issue of (1) his guilt and (2) the validity of alleged prior-convictions. On March 27, 1979, at around 11 a.m., Keith Woodward saw the profile of a man 20 to 30 feet away, walking away from...
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Opinion We discuss in this appeal the standards which govern a trial court’s award of attorney’s fees under Government Code section 54960.51 to a prevailing plaintiff in a private action against a public entity found to have violated the Brown Act. (§ 54950 et seq.) Common Cause and one of its members, Carolyn Sutton Eckmann, obtained a judgment declaring defendant members of the San Diego City Co...
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Opinion Defendant Curtis James Jones appeals from a judgment (order of probation) of the Sacramento County Superior Court entered after a jury found him to be guilty of assault with a deadly weapon upon a police officer. (Pen. Code, § 245, subd. (b).) Defendant contends that the trial court erred in admitting into evidence a color photograph of the victim, and in failing to submit a verdict for...
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Opinion Plaintiff appeals from the judgment of dismissal of his second cause of action after a motion for summary judgment was granted. 1 For reasons which follow, we reverse and remand for further trial proceedings. *742 Plaintiffs second amended complaint contains two causes of action. 2 The first is against Sacramento Board of Realtors (SBOR) and alleges plaintiff had been engaged by...
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Opinion In this appeal we address the question whether the rule announced by our Supreme Court in Wellenkamp v. Bank of America (1978) 21 Cal.3d 943 [148 Cal.Rptr. 379, 582 P.2d 970] applies with equal force to a federally chartered savings and loan association. We hold that Wellenkamp applies; accordingly, we reverse the judgment. Facts Jose...
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Opinion Appellant Conroe C. McGee filed a complaint seeking damages for intentional infliction of emotional distress, alleging in substance that while employed as a foreman at the Stanford University Hospital, he had been the victim of a campaign of harassment designed by his supervisors to deprive him of his job and replace him with a fellow worker. Respondents demurred, claiming th...
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119 Cal.App.3d 883 (1981) 174 Cal. Rptr. 257 STELLA G. DAVIS, Plaintiff and Appellant, v. FRANK C. DAMRELL, SR., et al., Defendants and Respondents. Docket No. 45603. Court of Appeals of California, First District, Division One. June 1, 1981. *885 COUNSEL Conklin, Davids & Friedman for Plaintiff and Appellant. Long & Levit, Ronald E. Mallen and David W. Evans for Defendants and Respondent...
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Opinion Appellant challenges the summary judgment entered on her complaint for legal malpractice, contending that the issue of negligence concerning the implications of an unsettled proposition of law presented triable questions of fact. However, in light of the record and governing precedents, the contention is proven meritless. Accordingly, we affirm the judgment for the reasons which follow. T...
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Opinion The present appeal is one of four companion cases argued and submitted together to this court. The central question common to all four cases is whether surviving spouses of decedents who died after 1965 and before 1976 are entitled to a new tax basis, for state personal income tax purposes, for their share of certain community property, the decedent’s share of which was...
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Opinion This appeal concerns two issues: (1) whether appellants failed in showing that an employee of the State Board of Control (Board) was an ostensible agent for the State of California (State) so as to estop the State from asserting the three-year provision relating to service of a summons; and (2) whether the trial court abused its discretion in dismissing the action against defendan...
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Opinion Appellant Sandy Cademartori appeals from that portion of a judgment of dissolution that awards certain property ac *972 quired during the marriage to respondent John Cademartori as his separate property. The parties were married on December 28, 1963. They separated September 15, 1975, and were granted an interlocutory dissolution of marriage on June 19, 1978. In 1966 husband sold so...
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Opinion The present appeal, by the State of California, is from a judgment of the Santa Cruz Superior Court mandating the return of *930 certain land in Santa Cruz County to the zoning it had “prior to imposition of the Timber Preserve Zone” (TPZ). As will be seen in detail, the TPZ is a zoning classification created by the Forest Taxation Reform Act (FTRA). The sol...
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Opinion Introduction We review two judgments granting peremptory writs of mandate ordering the appellant County of Kern (hereinafter County) to pay *92 respondent Mission Valley East, Inc., the excess proceeds from the tax sales of seven parcels of real property. Respondent claims entitlement to the excess proceeds under Revenue and Taxation Code section 4675 which gives...
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Opinion The historical background for the instant controversy involves a different proceeding and though plaintiff, Baker, refers to it at length, reference thereto is unnecessary. On June 16 and 18, 1979, defendants Anderson were served with a summons and complaint. On June 27, 1979, both defendants were served by mail with a first amended complaint, said complaint having been filed on June ...
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Opinion Plaintiff, Erwin H. Karz,1 appeals from a judgment in favor of defendant. Defendant had been plaintiff’s employee and occu*Supp. 3pied an apartment in plaintiff’s apartment-hotel as part of the compensation for his employment services. Defendant’s employment was terminated on December 26, 1978.* 2 There was an altercation at this time and the police were called. Police officers responded t...
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Opinion A misdemeanor complaint was filed April 15, 1976, charging defendant with four separate violations of Vehicle Code section 20 (using a fictitious name in a document filed with the Department of Motor Vehicles). Defendant failed to appear in court for his arraignment on April 23, 1976. He had been notified to appear by a letter. An arrest warrant was issued April 23, 1976. Defendant was eve...
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I have no quarrel with the efforts of my colleagues of the majority as they seek to articulate a broad rule which would permit counsel “to ask questions reasonably designed to assist in the intelligent exercise of peremptory challenges ...” (ante, *415p. 407), and to preserve considerable discretion of “the trial court to contain voir dire within reasonable limits.” (Ibid.) Similarly, I agree with...
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Opinion Respondent was employed as a police officer by appel- | lant City of Palos Verdes Estates (the City) for a period of 28 years, from 1949 until June 2, 1977. On the latter date, he was retired by the City as a result of an industrially related medical disability. Respondent asserted that he declined retirement until such time as he had utilized all accumulated sick leave standing to his ...
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Opinion Plaintiff, a former employee of the California Youth Authority, appeals from a judgment denying his petition for a writ of administrative mandamus (Code Civ. Proc., § 1094.5) to compel his reinstatement as a group supervisor at the DeWitt Nelson Training Center in Stockton. Plaintiff’s termination followed discovery of approximately 450 grams of marijuana growing and in loose form at hi...
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Opinion A 1972 Ford Pinto hatchback automobile unexpectedly stalled on a freeway, erupting into flames when it was rear ended by a car proceeding in the same direction. Mrs. Lilly Gray, the driver of the Pinto, suffered fatal burns and 13-year-old Richard Grimshaw, a passenger in the Pinto, suffered severe and permanently disfiguring burns on his face and entire body. Grimshaw and the hei...
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Opinion Appellants, Aetna Casualty and Surety Company (hereinafter referred to as Aetna), together with their insured, Judy and John McCall, appeal from a finding that Aetna’s insurance was primary. The instant dispute centers around which policy of insurance applies to cover a loss from an automobile accident in which Judy McCall was involved. The parties stipulated to the following facts: A...
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Opinion Carlton Santee Corporation (Carlton) appeals from the judgment entered after it unsuccessfully challenged the validity of an ordinance of the Padre Dam Municipal Water District (District) establishing the time of payment and charge to connect a completed dwelling unit for water and sewer services and the fee charged for inspection and engineering. The trial court found that in ena...
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* —Defendant appeals from a judgment of conviction following jury trial of the burglary in the first degree, two counts of burglary and one count of attempted burglary. He contends that the trial court erred in admitting evidence for purposes of impeachment of his responses to two questions asked without prior Miranda 1 warnings following discovery of stolen jewelry during a search of his bed...
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Opinion Defendant Franchise Tax Board (board) appeals from judgments entered after the court found in plaintiffs’ (taxpayers) favor on contested tax amounts and ordered refunds. The cases are consolidated. The primary issue we consider is whether taxes paid by the James C. Campbell trust, a Hawaii trust, to the State of Hawaii are “on or according to or measured by income or profits”...
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*118 Opinion Convey-All Corporation and Centennial Insurance Company appeal from a judgment after nonjury trial, denying recovery in an action against respondent Pacific Intermountain Express Company, Inc. (PIE). Convey-All sued respondent, an interstate motor carrier, for the cost of repairing industrial equipment which was damaged in shipment. Centennial, Convey-All’s insurer, ...
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120 Cal.App.3d 157 (1981) 174 Cal. Rptr. 452 ELEANOR A. HARRIS et al., Plaintiffs and Appellants, v. TROJAN FIREWORKS COMPANY, Defendant and Respondent. Docket No. 23938. Court of Appeals of California, Fourth District, Division Two. June 8, 1981. *158 COUNSEL Peach, Shapiro & Peach and Timothy W. Peach for Plaintiffs and Appellants. Morris, Polich, Jr., & Purdy, Theodore P. Polich, Jr., ...
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Opinion Defendant appeals from money judgments entered in favor of plaintiffs on their complaints for personal injuries. The cases were tried together and we have consolidated them on our own motion. The underlying facts are not in dispute. Plaintiffs were defendant’s employees in a logging operation in Trinity County; they were injured in separate incidents on the same day and brought separa...
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Opinion Defendant appeals from a judgment entered after a jury found him guilty of escape without force or violence. (Pen. Code, § 4530, subd. (b).) He was sentenced to the middle term of two years, to be served consecutive to the robbery sentence which he was serving at the time of his escape. On appeal, he asserts (1) the trial court abused its discretion in denying his motion for a mis...
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Opinion Appellants, the Fremont Fire District Board of Commissioners, brought an action for declaratory relief to determine whether they or respondent Santa Clara County Board of Supervisors constitute the district board of directors, within the meaning of the Fire Protection District Law of 1961 (Health & Saf. Code, § 13801 et seq.), of the Fremont Fire District. They appeal from a judgment in f...
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Opinion Petition for writ of mandate. *192 Background: Real party in interest (Moss), plaintiff in the trial court, filed an action against his employer, petitioner here and defendant in the trial court, alleging wrongful discharge and breach of oral contract. Plaintiff filed an election to submit the cause to judicial arbitration. (Code Civ. Proc., § 1141.12, subd. (b)(ii) and rule 1600(...
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Opinion Appellant appeals from a judgment of conviction following jury trial of violating Penal Code section 211, robbery (count I) and Penal code section 245, subdivision (a), assault by means of force likely to produce great bodily injury (count II). Appellant was sentenced to state prison for the aggravated term of four years on the robbery. Sentence on the felony assault conviction was stay...
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120 Cal.App.3d 264 (1981) 174 Cal. Rptr. 481 THE PEOPLE, Plaintiff and Respondent, v. SUSAN LESLIE ALLISON, Defendant and Appellant. Docket No. 20840. Court of Appeals of California, First District, Division Two. June 12, 1981. *267 COUNSEL Gordon L. Rockhill, Rockhill & Schaiman and Michael P. Goldstein for Defendant and Appellant. *268 George Deukmejian, Attorney General, Robert H. Philibos...
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Opinion Pursuant to a plea bargain, defendant entered a plea of guilty to violating Health and Safety Code section 11351 (possession for sale of cocaine). 1 His appeal attacks the sentence imposed; he asserts the court erred in sentencing him to the upper four-year term. Specifically, defendant claims the court failed to give proper consideration to factors cited in mitiga...
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Opinion Did the trial court abuse its discretion in a dissolution action when it refused to order the immediate payment of a nonemployee spouse’s interest in a retirement benefit, where the employee spouse was eligible to retire and receive the benefit but had chosen not to do so? I. Vera and Earl Gillmore separated in 1978 after a marriage of 14 years. The trial court issued an interlocuto...
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Opinion Plaintiff challenges on constitutional grounds recent legislation (Bus. & Prof. Code, § 25602, subds. (b), (c); Civ. Code, § 1714, subds. (b), (c)) which is aimed at immunizing certain providers of alcoholic beverages from civil liability for injuries attributable to intoxication. We will sustain the subject legislation and the trial court’s dismissal of plaintiff’s complaint for ...
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I concur in the conclusion reached by the majority. A defendant is entitled to discovery prior to a preliminary examination and a magistrate has the authority to order it.1 It should not be forgotten that a defendant’s right to discovery is rooted in the Constitution. Due process requires a prosecutor to disclose all material evidence favorable to a defendant, including evidence related to guilt, ...
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Opinion Defendant Mark H. North pled guilty to second degree burglary (Pen. Code, §§ 459, 460; all further statutory references are to that code) following the trial court’s denial of his motion to suppress evidence (§ 1538.5) which had been discovered by the burglary victim in defendant’s automobile. In affirming the conviction, we will examine the propriety of the victim’s actions, and his st...
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Opinion May a trial court deny a motion to certify a class if the defendants are able to show there was antagonism to the lawsuit on be *466 half of some absent class members? A secondary issue centers on whether the plaintiffs’ prayer for rescission and punitive damages prevents the use of a class action suit. I. Tahoe Donner Subdivision is a recreational home site...
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Opinion Columbus Line, Inc. and Royal Viking Line, Inc. appeal from summary judgment entered against them and in favor of Gray Line Sight-Seeing Companies Associated, Inc. on their cross-complaint for equitable indemnity in a personal injury action. That action rose out of the following circumstances. Royal Viking is the owner of the M.S. Viking Sea, a passenger vessel. Co...
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120 Cal.App.3d 66 (1981) 174 Cal. Rptr. 533 In re TANYA P., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. FRANCISCA P. et al., Defendants and Appellants. Docket No. 58617. Court of Appeals of California, Second District, Division Five. May 20, 1981. *68 COUNSEL Stephen R. Grohs for Defendants and Appellants. Joh...
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Opinion The juvenile court found the minor, eight-year-old Tanya P., to be a dependent child of the court under Welfare and Institutions Code section 300, subdivisions (a) and (d). The court found true the allegation that on or about June 17, 1979, and on numerous prior occasions, Tanya’s stepfather, appellant Raymond P., sexually molested her by oral copulation. Tanya was removed from the custod...
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Opinion By this petition for writ of mandate, petitioner (Jimmie) seeks to nullify an order of respondent court holding a marital settlement agreement provision for spousal support was modifiable. Jimmie and Masae separated in 1967, after 16 years of marriage. The parties signed a marital settlement agreement on the 26th day of November 1971. The agreement contained a spousal support provisio...
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120 Cal.App.3d 218 (1981) 174 Cal. Rptr. 557 In re D.M.G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.M.G., Defendant and Appellant. Docket No. 5719. Court of Appeals of California, Fifth District. June 9, 1981. *220 COUNSEL Howard J. Berman, under appointment by the Court of Appeal, for Defendant and Appellant. George Deukmejian, Attorney General, Ro...
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Opinion *—This case arose out of hearings in the juvenile court wherein the judge of the juvenile court found that appellant (D.M.G.) came within Welfare and Institutions Code section 602 in that she had violated the following provisions of the Welfare and Institutions Code, Vehicle Code and Penal Code: Escape from the custody of a probation officer (Welf. & Inst. Code, § 871);1 auto theft (Veh. ...
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120 Cal.App.3d 320 (1981) 174 Cal. Rptr. 576 WALTER MADISON TUTTLE et al., Petitioners, v. THE SUPERIOR COURT OF SAN LUIS OBISPO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. 6258. Court of Appeals of California, Fifth District. June 12, 1981. *323 COUNSEL Laurie Belger and Michael Norris for Petitioners. No appearance for Respondent. *324 George Deukmejian, Attorney General,...
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Opinion Defendant was charged by information with possession of cocaine. He successfully moved in the superior court for dismissal of the information. This appeal by the People followed. We reverse. Facts: In the early morning hours on August 28, 1979, Officer Baker of the Los Angeles Police Department, assigned to the Van Nuys division, was on duty in a marked police vehicle on Ventura Boulevard ...
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*302 Opinion The issue in this proceeding for extraordinary relief is whether parties to an arbitration contract 1 must each designate as their arbitrator a person who is neutral with regard to the subject controversy. Respondent court, in response to motions by each party seeking disqualification of the other’s nominated arbitrator, entered an order disqualifying...
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Opinion In this action founded upon fraud, plaintiff, Martha Elisa Sprague, appeals from a judgment by the court vacating a judgment entered upon a jury verdict and entering a different judgment pursuant to Code of Civil Procedure section 663, subdivision 2. *415 The critical question relates to the proper measure of damages, which in turn is dependent upon a determination of whether the ac...
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Opinion Husband appeals from an interlocutory judgment dissolving the marriage. *382 In 1968 the parties married and formed a corporation “Your Own Things, Inc.,” which manufactured ladies’ clothes. Nine years later the parties separated and their community estate was in excess of $1.2 million. Husband’s earnings in the two preceding years was $100,000. Income to husband fro...
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Opinion Petitioners seek a writ of mandate directing the superi- or court to suppress evidence pursuant to Penal Code section 1538.5 and to set aside the information pursuant to Penal Code section 995. Petitioners are jointly charged with violating Health and Safety Code *585 section 11358 (cultivation of marijuana) and Penal Code section 12020, subdivision (a) (possession of a sawed-off shot...
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Opinion Defendant was convicted in a nonjury trial of the crime of assault with a deadly weapon. He was found not guilty of a count of false imprisonment. We affirm the conviction. The prosecution produced evidence that defendant assaulted an elementary school teacher on the school grounds by striking her in the *423 head with a rock which he held in his hand. The injury required suturing a...
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Opinion Robert Dale Boerner pleaded guilty to attempted robbery (Pen. Code, §§ 664 and 211) 1 and admitted allegations he used a dangerous weapon (§ 12022, subd. (b)) and inflicted great bodily injury (§ 12022.7). Six counts charging two attempted robberies, three assaults with a deadly weapon (§ 245, subd. (a)), and kidnaping with the *509 intent to commit robbery (§ 209, subd. (b)) were d...
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Opinion Defendant appeals from the judgment entered after the trial court 1 found him guilty of violating section 203, Penal Code 2 and granted him five years’ probation on condition he spend nine months in the county jail. 3 The primary issue is whether the infliction of a three-inch facial laceration which extends from the bottom of the left ear to jus...
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Opinion In an action for medical malpractice, plaintiff John McKinney † sought damages from defendants (surgeon Louis Nash and anesthesiologist William H. Moon) on theories of negligence in performing a surgical repair of a bilateral inguinal hernia, lack of informed consent before undertaking the surgery and breach of contract or warranty. At the conclusion of all the evidence, the trial cou...
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Opinion James Roy Liddicoat appeals from an order committing him to the Department of Mental Health as a mentally disordered sex offender. (Pen. Code, § 1237, subd. 1.) *514 Appellant had been accused of several felony sex crimes committed on two young girls. At trial the court ruled that one of the victims, Emily, age four, was disqualified to be a witness because she was at that time inca...
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Opinion On March 11, 1974, decedent, then an unmarried man, executed his last will and testament in which he designated appellant, his natural sister, as primary beneficiary of his entire estate. Under the relevant provisions of the will, decedent specifically disinherited Arillia Washington—whom he planned to marry—as well as any person claiming as issue of decedent or “any other person not sp...
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Opinion Plaintiff argues that the manufacture of mobilehomes is governed by the state’s construction safety orders and not the general industry safety orders. We hold that in the construction of mobilehomes in an assembly plant, as later described, the construction safety orders are inapplicable; accordingly, such a manufacturing operation is appropriately covered by the safety orders which...
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*Supp. 23Opinion Defendant was charged with violating Vehicle Code, section 23102, subdivision (a), (driving under the influence of alcohol) with a prior conviction of the same offense. The People appeal from a pretrial order granting defendant’s motion to strike the allegation of a prior conviction.1 We reverse. Defendant’s motion was on the ground that in the prior action, in which he pleaded gu...
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Opinion Defendant, charged with possession of more than an ounce of marijuana (Health & Saf. Code, § 11357, subd. (c)), appeals from the denial of her motion to suppress evidence. She claims that the arresting officer had no right to seize a marijuana plant growing in her backyard and that her consent to the entry and search of her home was made in submission to authority. The arresting officer h...
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*494Opinion It is a fundamental canon of criminal law, and a foundation of due process, that “A person cannot be tried or adjudged to punishment while such person is mentally incompetent.” (Pen. Code, § 1367; Pate v. Robinson (1966) 383 U.S. 375, 378 [15 L.Ed.2d 815, 818, 86 S.Ct. 836]; People v. Laudermilk (1967) 67 Cal.2d 272, 282 [61 Cal.Rptr. 644, 431 P.2d 228]; People v. Pennington (1967) 66 ...
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Opinion In this writ proceeding, petitioners, defendants in the underlying action (hereafter defendants), seek review of a trial court order denying their pretrial motion to expunge a notice of lis pendens pursuant to Code of Civil Procedure section 409.1. 1 Defendants contend that the trial court applied the wrong legal standard in passing upon their motion to expunge, and assert that on the...
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29 Cal.3d 574 (1981) 629 P.2d 502 174 Cal. Rptr. 701 ANTONIO MICHAEL MARTINEZ, Petitioner, v. THE SUPERIOR COURT OF PLACER COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. S.F. 24226. Supreme Court of California. June 18, 1981. *576 COUNSEL Blackmon, Wasserman & Blicker and Clyde M. Blackmon for Petitioner. Quin Denvir, State Public Defender, as Amicus Curiae on behalf of Pe...
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Opinion Defendant and appellant Nathaniel McGraw appeals from the judgment of the Superior Court of Alameda County entered after a jury found him guilty of burglary (Pen. Code, § 459) in case No. 66405, and possession of stolen property (Pen. Code, § 496) in case No. 66320, as amended, which had been consolidated for trial. In case No. 66405 appellant was represented by retained counsel, Atto...
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Opinion Defendants obtained a summary judgment against plaintiff Esther Anne Billings based upon facts deemed admitted by her because she failed to respond to defendants’ request for admissions of fact. (Code Civ. Proc., § 2033.) After plaintiff’s motion for relief under Code of Civil Procedure section 473 was denied she filed this appeal. Facts Plaintiff and appellant commenced...
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Opinion Reviewing a civil antitrust action against professional real estate organizations, we hold certain group conduct constituted both an unlawful restraint of trade permitting injunctive relief, and unlawful business activity allowing imposition of civil penalties. The additional issue of whether the associational policy of refusing to sell investment multiple listing service informat...
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*123 Opinion Defendants Department of Industrial Relations and Donald Vial, the director of the department (appellants) appeal from an adverse judgment rendered in an action brought for writ of mandate and related relief.. The Facts The Director of the Department of Industrial Relations (hereafter director or department) was asked by an employer group, representing loca...
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*520 Opinion Plaintiff, Minoru Shimoyama, was denied reassignment for the 1979 season to the position of head football coach at Chatsworth High School. He sued the Los Angeles Unified School District and Ted Siegel, the high school principal, for a declaration that he is entitled to continue in that position and for an injunction against removing him from it. From an adverse judgment, he appe...
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*599 Opinion Respondents, a group of 14 Fisherman’s Wharf restaurants 1 (hereinafter the Restaurants), instituted this action for writ of mandate and declaratory and injunctive relief against appellants San Francisco Human Rights Commission (hereinafter HRC), San Francisco Port Commission (hereinafter the Port Commission) and their respective commissioners, directors a...
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Opinion San Diego Trust and Savings Bank (Bank) as executor of the estate of Tom Kelly, deceased, and Kevin and Kathleen Kelly, coadministrators of the estate of Helen Kelly, deceased (referred to collectively as the Kellys), are the owners of certain real property on which there was a single-family residence known as Melville/Klauber House. 1 This building was designed by arch...
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Opinion Convicted of robbery, Michael Tyrone Simpson, contends the trial court erred in enhancing his term because of his admitted prior felony conviction, while aggravating his base term because he was on parole for the same previous conviction when committing his present offense. He meritoriously claims additional presentence custodial credits. Unless otherwise prohibited the proved fact Simpson...
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Opinion On February 20, 1980, Los Angeles Police Officer Armenta observed Juan walking in a staggering manner. Juan was holding a sock to his nose. His eyes were bloodshot, there were silver particles around his lips and there was the odor of paint about his body. Juan was unable to converse coherently. Officer Armenta concluded that Juan was under the influence of paint and arrested appellant....
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*801 Opinion Regional and state coastal commissions appeal from a judgment granting declaratory and injunctive relief to the City of Monterey (City) and the owner, Dale Runyan (Runyan), thereby permitting the reconstruction of certain historic buildings on Cannery Row without a coastal permit pursuant to the “repair” exceptions of Public Resources Code 1 section 30610,...
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*795 Opinion Plaintiff Julianna Furesz’ appeal is from “that portion of the judgment ... in favor of defendants Andres C. Garcia and Rachel A. Garcia ... providing that plaintiff was not entitled to unaccrued interest after defendants’ breach on their obligations under a promissory note and deed of trust for the sale of certain real property.” There is no substantial dispute...
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Opinion This case is before us on a petition for writ of mandate. Because the issues involved appeared to be of considerable public importance and of first impression, we issued an alternative writ. We now hold that the relief sought should be granted. Petitioners are tenants of an apartment building at 2000 Broadway in San Francisco, which was financed with a federally insured mortg...
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Opinion This is an appeal by defendant Albert Nickelberry from a judgment reviving a money judgment in favor of plaintiff United States Capital Corporation which it had obtained approximately 10 years earlier. Defendant’s sole defense was based on laches on the part of plaintiff in failing to satisfy or at least attempt to satisfy the original judgment within the 10-year period. The court rejec...
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Opinion Defendant appeals from a conviction of assault with a deadly weapon, the use of a “whip cord.” 1 (Pen. Code, § 245, subd. (a).) Noting that the trial court instructed the jury that a “deadly weapon” was “any object, instrument, or weapon which is used in such a manner as to be capable of producing, and likely to produce, death or great bodily injury” (italics added) he contends that...
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Opinion We are asked to decide whether the term of commitment of a patient to a state mental hospital (Pen. Code, § 1026) may be extended pursuant to Penal Code section 1026.5 by proceedings initiated by a petition filed after the expiration of the existing term. We hold that it may not and reverse the trial court’s order extending the commitment of defendant Joe Pacini. F...
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Opinion Plaintiff United Services Automobile Association appeals from an order of dismissal following the sustaining of a demurrer, without leave to amend, to plaintiff’s first amended complaint for declaratory relief. According to the allegations of the first amended complaint: Plaintiff is an automobile liability insurer who issued a policy to Ivanhoe Jackson whereby plaintiff agre...
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*Supp. 16Opinion Plaintiff Renaissance Realty, Inc., a licensed corporate real estate broker, was awarded judgment on its complaint for the sum of $3,600 compensatory damages against defendants Mr. and Mrs. Soriano and Mr. and Mrs. Tambaoan, for $500 punitive damages against defendants Soriano and for $500 punitive damages against defendants Tambaoan. This judgment is based upon plaintiff’s third...
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Opinion The present appeal—the third in this protracted proceeding—stems from plaintiff’s repeated efforts to enforce a portion of a court judgment awarding her $25,000 in attorney’s fees, entered against the various defendant state agencies and officers in April 1973, eight years ago. Shortly after the entry of the 1973 judgment, defendants filed their initial appeal, challenging, inter alia, bo...
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Opinion We granted a hearing in this case to review the propriety of an investigative detention of defendant by police officers. After an independent study of the issues, we have concluded that the thoughtful opinion of Justice Newman (J. M.), assigned to sit with the Court of Appeal, Second Appellate District, in this case, correctly treats the issues and that we should adopt it as our own. That ...
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Opinion Plaintiffs, Henderson Brothers Stores, Inc., William D. and Patricia Henderson, and Jobbers Service, Inc., appeal from judgments of nonsuit entered against them in favor of defendants, L. A. MacDonald (doing business as Sacramento Wheel Service, Inc.) and Welsh & Bresee of Sacramento, Inc., and the consequent dismissal of their cause of action against defendant Charles R. Smiley (...
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*551 Opinion The broad question presented for decision is whether the Orange County Superior Court has jurisdiction to entertain a tort action against a Nevada hotel corporation. The suit was brought by California residents and arose out of the hotel’s alleged negligence as the proximate cause of the loss by theft or mysterious disappearance of plaintiffs’ personal property from ...
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Opinion These appeals are from judgments entered on a determination by the superior court that funds represented by certain unnegotiated and unreturned checks have escheated to the State of California pursuant to the Unclaimed Property Law (hereinafter UPL). (Code Civ. Proc., § 1500 et seq.) 1 Appellant and respondent Blue Cross of Northern California (Blue Cross) is a nonpro...
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