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All Reporters → cal-rptr → Volume 187

Opinions in cal-rptr Volume 187

137 Cal.App.3d 282 (1982) 187 Cal. Rptr. 1 THE STATE OF CALIFORNIA ex rel. DEPARTMENT OF REHABILITATION et al., Petitioners, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; CITY OF OAKLAND, Real Party in Interest. Docket No. A016948. Court of Appeals of California, First District, Division Four. November 9, 1982. *284 COUNSEL George Deukmejian, Attorney General, Michael Franchetti, Chief Dep...
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Opinion The State of California, through the Department of Rehabilitation, and the Attorney General of the State of California seek a writ directing respondent court to grant a motion by petitioners for judgment on the pleadings. We grant the writ. Keith Kellum, a physically handicapped person, sued the Silver Dragon Restaurant, Inc., alleging failure to provide at a place of public accommodation...
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Opinion Irving Moskowitz petitioned this court for a writ of mandate directing respondent superior court to vacate its order denying petitioner’s motion for a protective order limiting the use of his deposition, and to enter an order granting appropriate protection. We initially denied the petition but, on petitioner’s application, the Supreme Court granted a hearing and retransferred the...
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*322 Opinion The basic issue presented by this appeal is whether employees who serve the superior court in Santa Clara County are employees of the court or of the county. The Service Employees International Union, Local 715, AFL-CIO (union or petitioner) petitions this court for a writ of mandate requiring the Superior Court for the County of Santa Clara and its clerk, John Kazubowski (resp...
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Opinion Plaintiffs, trustees, appeal from a summary judgment based on a ruling that the statute of limitations had run on their attorney malpractice action. Defendants have filed a purported protective cross-appeal from the denial of their motion for summary judgment on the grounds that plaintiffs no longer had standing to bring suit on behalf of the trust. Plaintiffs Howard Gurkewit...
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*732 Opinion We review a recommendation of the State Bar Court that petitioner, Claude E. Dixon, be suspended for one year, with execution stayed, and that he be placed on probation for two years on conditions including three months’ actual suspension, passage of the Professional Responsibility Examination, and compliance with various reporting requirements. That recommendation r...
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Opinion Mark Albert McElheny appeals his jury-tried conviction and sentence to prison for robbery and burglary, both with personal use of a firearm (Pen. Code, §§211, 459 and 12022.5), 1 and for assault on a peace officer and assault with a deadly weapon, both while armed with a firearm (§§ 245, subd. (b), 245, subd. (a), and 12022, subd. (a)). On July 17, 1980, McElheny and his accomplice,...
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Opinion In this action for the refund of sales tax paid under protest (Rev. & Tax. Code, § 6933), 1 the plaintiff-taxpayers (plaintiffs) claim the State Board of Equalization (the Board) erroneously assessed and collected certain sales taxes. This claim was rejected in a trial by the court and judgment was entered for defendant. Plaintiffs appeal, contending: (1) they prov...
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Opinion Plaintiff Richard H. Perley appeals from the denial of his petition for a writ of mandate directing respondent Board of Supervisors of Calaveras County (board) to vacate its decisions approving a conditional use permit and a reclamation plan for a proposed mining project of real party Western Source, Inc. (WSI), and to enjoin further action on the project by the county or the deve...
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Opinion Dr. Larry R. Bartschi (plaintiff) sued defendants Chico Community Memorial Hospital (Chico), N.T. Enloe Memorial Hospital (Enloe), and Feather River Hospital (Feather River) alleging his wrongful removal from their medical staffs. He appeals various orders and a judgment which (1) denied him discovery against Chico and Enloe, (2) granted summary judgment to Feather River because o...
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Opinion This is a consolidated appeal from the judgment of conviction of second degree burglary and motion for new trial pursuant to Penal Code *24 section 1181, subdivision 9. At issue is whether a defendant who flees the jurisdiction following a guilty verdict and is not apprehended and sentenced until after the destruction of the court reporter’s notes must be granted a ne...
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Opinion This appeal is from a judgment of the superior court denying Carlos Ayala’s petition for writ of prohibition. *486The petition sought to prohibit the Ventura County Municipal Court, and particularly Judge Frederick Jones, from taking further action on Ayala’s case. The petition alleged as follows: On April 4, 1980, Ayala appeared in Judge Jones’ courtroom and pleaded nolo contendere to a c...
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Opinion On December 16, 1981, we filed our opinion in this matter, a copy of which is appended hereto. Subsequently the Supreme Court granted a *122 hearing. Thereafter two events transpired. (1) The Supreme Court filed its opinion in the case of In re Marriage of Flaherty (1982) 31 Cal.3d 637 [183 Cal.Rptr. 508, 646 P.2d 179], and (2) the Supreme Court retransfered this case to this court ...
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Opinion Convicted of one count of burglary (Pen. Code, § 459) by guilty plea, defendant Victor L. DePaul was granted probation for a period of two years. More than two years later probation was revoked and defendant was sentenced to state prison. He appeals from the judgment. At issue is the meaning of a statutory provision that revocation, “summary or otherwise, shall serve to toll the runni...
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Opinion Having waived a jury trial and by stipulation submitted the cause on the transcript of the testimony taken at the preliminary hearing, defendant was found guilty of child stealing in violation of section 278.5, subdivision (a), Penal Code, as charged in the information. He appeals from the judgment. Robert was born to Donna Cain and defendant on August 31, 1979; they lived together un...
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Opinion This appeal has its basis in the tragic fire which swept through the MGM Grand Hotel in Las Vegas injuring a large number of hotel guests and employees. Plaintiffs Billy J. and Patricia Ann Dendy were guests at the hotel at the time of the fire and brought suit in California to recover for personal injuries and other damages allegedly resulting from the blaze. Two *460 of the defendan...
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137 Cal.App.3d 465 (1982) 187 Cal. Rptr. 100 THE PEOPLE, Plaintiff and Respondent, v. JAVIER C. MACIAS, Defendant and Appellant. Docket No. 13362. Court of Appeals of California, Fourth District, Division One. November 17, 1982. *468 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Victoria Sleeth, Lynda Romero and Jeffrey Stuetz, Deputy State Public Defenders...
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Opinion Javier C. Macias appeals his judgment of conviction for attempted murder (Pen. Code, §§ 187, 664),1 possessing a knife in an honor camp (§ 4574), escape from an honor camp (§ 4532, subd. (a)), and findings he per*469sonally inflicted great bodily injury (§ 12022.7) and used a dangerous or deadly weapon (§ 12022, subd. (b)) while committing the attempted murder and escape. He incorrectly co...
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Opinion Defendant pled guilty to cultivation of marijuana (Health & Saf. Code, § 11358) following a denial of his request for diversion. The denial was based upon the district attorney’s determination that the amount cultivated was not for “personal use,” a condition of eligibility for diversion (Pen. Code, § 1000). Defendant appeals upon a certificate of probable cause (People ...
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Opinion Plaintiff is the owner of a small lot in the City of Pasadena. Because of its shape and size, the lot, under the applicable zoning ordinance, is not available for the construction of the residence plaintiff desires to build on it. He applied for a zone variance, which was denied by the local agency and, on appeal, by the city council. He then brought a proceeding in administrative manda...
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*534 Opinion Charles Anthony Parrison appeals the judgment entered on the jury verdict convicting him of attempted murder (Pen. Code, §§ 664 and 187) 1 with personal use of a firearm (§ 12022.5) and with being an ex-felon in possession of a firearm (§ 12021). We reject his several contentions pertaining to pretrial, trial, and posttrial error and affirm the judgment. Factual and Procedur...
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137 Cal.App.3d 542 (1982) 187 Cal. Rptr. 130 THE PEOPLE, Plaintiff and Respondent, v. JORGE GUTIERREZ, Defendant and Appellant Docket No. 13993. Court of Appeals of California, Fourth District, Division One. November 19, 1982. *543 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Gabriel C. Vivas, Deputy State Public Defender, for Defendant and Appellant. ...
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Opinion In these original proceedings, we are asked to pass upon the propriety of a protective order which prevents defendant fire insurance company from taking plaintiff insured’s deposition in an action the insured brought on the policy. The trial court, under the guise of upholding plaintiffs constitutional privilege against self-incrimination, imposed such an order, effective until cr...
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Opinion Plaintiff brought a class action on behalf of the holders of unsecured debentures issued by Metro-Goldwyn-Mayer, Inc. (MGM), the predecessor of defendants MGM Grand Hotels, Inc. (Hotels) and Metro-Goldwyn-Mayer Film Company (Film Co.). In 1980, several years after the debentures were issued, MGM decided to divide its business into two separate corporations—one to operate the hotel busin...
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32 Cal.3d 741 (1982) 653 P.2d 648 187 Cal. Rptr. 144 CHARLES S., a Minor, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. L.A. 31524. Supreme Court of California. November 22, 1982. *743 COUNSEL Wilbur E. Littlefield, Public Defender, Kenneth I. Clayman, John Michael Lee and Jack T. Weedin, Deputy Public Defenders, for Petitioner...
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Opinion Petitioners Sacramento County and its sheriff are defendants in an action pending in the respondent superior court. In this writ proceeding, they seek mandate to secure a protective order limiting discovery and to vacate a trial court stay of enforcement of an ordinance. A writ of mandate will issue directing the granting of a protective order. The pending action in respondent court tende...
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Opinion A jury convicted Thomas Joseph Tucciarone of attempted murder with a knife causing great bodily injury (Pen. Code, 1 §§ 664/187, 12022, subd. (b), 12022.7), assault with a deadly weapon causing great bodily injury (§§ 245, subd. (a), 12022.7), mayhem (§ 203), exhibiting a deadly weapon in a threatening manner (§ 417), and assault with a deadly weapon (§ 245, subd. (a)). He was sentenc...
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Opinion Plaintiffs Susan Erzinger et al., appeal a judgment favoring the Regents of the University of California (University) on the plaintiffs’ third amended complaint. The plaintiffs’ third amended complaint alleges: Plaintiffs are students at the University; the University collects a registration fee from all students; the registration fee is used to provide health services to students at ...
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Opinion Plaintiff Erwin Karz (hereinafter Karz) appeals from a judgment that he “shall take nothing” from defendants Harry Karl (hereinafter Karl), Debbie Reynolds (aka Mary Frances Karl, hereinafter Reynolds) and Raymax Productions, Inc. (hereinafter Raymax) in Karz’ action for damages for breach of contract, fraud and conversion. The judgment was rendered in a trial department when Karz advis...
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Opinion Jane Behrens (Wife) petitioned for dissolution of her 29-year marriage to Edwin H. Behrens (Husband). There were no minor children, and *568 the issue of dissolution itself was ultimately bifurcated and adjudicated without appeal. The other issues at trial were spousal support, property characterization and division, and attorney fees and costs. From the judgment purp...
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Opinion Facts After pleading guilty to possession of amphetamines (Health & Saf. Code, § 11378) pursuant to a stipulation that his sentence would run concurrent with any sentence imposed on another felony case, Richard Milton Hankins was referred for a narcotics evaluation under Welfare and Institutions Code section *696 3051. After spending 175 days at the California Re...
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Opinion Appellants Joseph Westrick and his son Vincent appeal from a directed verdict in favor of Doug Crawford, Joseph Westrick’s insurance agent, and State Farm Insurance (State Farm), his insurance company. In their complaint, appellants claimed that Jim Crawford, Doug Crawford’s father and also a State Farm agent, negligently failed to inform Joseph Westrick that a welding truck ...
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Opinion This is an appeal from judgment following an order granting summary judgment for defendant on the grounds of lack of jurisdiction of the superior court. *677 Facts The record is somewhat confusing because only the answer to the original complaint is present, whereas the operative complaint in this record is the second amended complaint. Not only is the record la...
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Opinion This petition by an employer challenges a decision by the Workers’ Compensation Appeals Board (hereafter Board) that the applicant was entitled to rehabilitation benefits. The issue raised is whether the Board erred in its ruling that the application was not barred by the statute of limitations. Novel and important questions concerning application of Labor Code sections 3207, 5404...
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*208 Opinion This controversy centers on the attempt by James W. and Patricia M. Stratton (Strattons) to buy the single family residence owned by Nasir and Sabira Tejani (Tejanis). 1 After the escrow between the parties failed to close on March 2, 1981, the Tejanis filed their complaint for unlawful detainer and for damages measured by the reasonable rental value of th...
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Opinion This appeal is from a judgment awarding plaintiff $10,000 in compensatory damages in his action for retaliatory eviction. The facts, stated in the light most favorable to the prevailing party, are as follows. In late December 1973, plaintiff Fritz Glaser and his wife, a retired couple, purchased a mobilehome and rented a space in Brookwood Mobile Home Park, owned by defendants Lewis M...
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Opinion Petitioners Dale Sartor, Thomas Butt and John Clinton, defendants in this action, seek a writ of mandate to compel respondent court to vacate its order denying their motion for summary judgment and to enter an order granting their motion. 1 The action was commenced by real parties in interest, Edna and Kent Jeffrey, as plaintiffs, against Interactive Resources, Inc. (...
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Opinion We granted a hearing in this case to resolve a conflict between the Court of Appeal decision herein and the decision in Ernest W. Hahn, Inc. v. Superior Court (1980) 108 Cal.App.3d 567 [166 Cal.Rptr. 644]. We have concluded that the analysis contained in Justice McClosky’s opinion for the Court of Appeal in the present case correctly treats the issues and we ...
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Opinion This appeal is from a summary judgment in favor of the employer, Nor-Cal Integrated Ceilings, in two proceedings coordinated pursuant to Code of Civil Procedure section 404.3 and rule 1540, California Rules of Court. 1 “‘Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his oppon...
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*753 Opinion National Coach Corporation is a disappointed low bidder on a state contract to provide buses. National’s bid was rejected for deviating from the contract specifications. National filed a protest (see Gov. Code, § 14813) with the State Board of Control that was rejected after hearing. National then filed a petition for review of the board decision in administrative ma...
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Opinion The decedent, John Baptist, died at the age of 77 of acute pneumonia. Petitioner, his widow, claimed that her husband’s death was proximately caused by on-the-job exposure to respirable asbestos, while working as a machine-tender and shingle-maker from 1936 to 1965. *905 At the compensation hearing, Dr. Bristow expressed his conclusion that the pneumonia was “entirely related” to de...
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Opinion Background This is an appeal from a judgment entered on May 19, 1981, in favor of respondent the City of Los Angeles (hereinafter City) in an action for personal injuries instituted by appellant Wakking L. Lewis, a minor, by and through his guardian ad litem, Margie Lewis. On November 8, 1975, appellant was struck and seriously injured by a motorist while he was crossing the interse...
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*826 Opinion Respondent was charged with constructive possession of phenycyclidine (PCP) (Health & Saf. Code, § 11378.5).The charge was based upon the discovery of a quantity of PCP upon premises occupied by the defendant. The discovery occurred during a police search conducted pursuant to a warrant issued on the basis of information supplied by a police informant. This appeal by...
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Opinion Frank Malynn appeals from a judgment of the Santa Clara County Superior Court denying his petition for a writ of mandate to compel the Morgan Hill Unified School District (District), and its superintendent, Robert B. Stannard, to rescind their assignment of him to Britton Middle School, and to reinstate him as a teacher at Live Oak High School. We affirm. Facts Appellant Frank M...
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*817 Opinion Plaintiff Ralph L. Collin (Collin) appeals from a judgment entered April 28, 1980, 1 in favor of Connecticut Valley Arms, Inc. (CVA) after jury trial verdict for CVA. We reverse on the basis that no verdict was reached, inasmuch as only seven jurors agreed in the special verdict that while CVA was negligent, its negligence was not a proximate cause of injury to plaintiff. (Se...
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*809 Opinion Appellant, Evelle J. Younger, appeals from a summary judgment in favor of respondents, State of California, the Board of Administration of the Public Employees’ Retirement System, and Carl J. Blechinger, executive officer, and against appellant on his petition for writ of mandate or certiorari, and for declaratory relief. Appellant served two 4-year terms as Attorney General of...
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Opinion The Governor and the Controller petition for a writ of mandate to compel the respondent superior court to vacate its order to show cause and its temporary restraining order enjoining the petitioners from implementing 1981 legislation that created 18 new Court of Appeal judgeships. (Stats. 1981, ch. 959; Gov. Code, §§ 69100-69102, 69104-69106.) The primary issue is whether two members (a...
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Opinion Defendant Carl Campbell contends on appeal that his prosecution for three narcotic offenses 1 was barred by the statutory grant of “transactional immunity” conferred by Penal Code section 1324 when it was invoked by the district attorney to compel his testimony in another felony case. The People contend defendant was given a constitutionally adequate substitute of “use ...
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Opinion The facts pertinent to our disposition herein are not in dispute and may be summarized briefly as follows. In July of 1977, respondent Georgina Zapata applied for benefits under the aid to families with dependent children (AFDC) welfare program. (Tit. IV-A of the Social Security Act of 1935, 42 U.S.C. § 601 et seq. (the Act).) That application was denied by the Los Angeles County Departme...
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Opinion Plaintiff appeals from a judgment of nonsuit in a medical malpractice action arising out of surgery performed by defendant on plaintiff. Facts Plaintiff, Joni Hale, had a history of her left knee slipping out of joint since 1968. Her care was ultimately taken over by defendant, Dr. Ralph J. Venuto, an orthopedic surgeon who recommended corrective surgery after plaintiff suf *915 f...
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Opinion A jury found Mendonsa guilty of three counts of discharging a firearm into an occupied dwelling. (Pen. Code, § 246.) He has appealed from a judgment under which he was sentenced to state prison, which was rendered upon the jury’s verdicts. His contentions of error may reasonably be narrowed to three: (1) that the evidence was not sufficient to support the jury’s verdicts, (2) that h...
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Opinion Neil Warren Skenandore and Pierre Adair Parent appeal after they were each convicted by a jury of two counts of attempted murder (Pen. Code, §§ 664, 187), three counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)), one count of receiving stolen property (Pen. Code, § 496), and one count of possession of a concealable firearm by an ex-felon (Pen. Code, § 12021). The jury ...
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Opinion TROTTER, J. Plaintiffs C-Y Development Company (C-Y) and Henry and Gloria Lopez (Lopez) petitioned the superior court for a writ of mandate to require the City of Redlands to issue a building permit to Lopez. The trial court denied the petition and plaintiffs appeal. Facts In 1978, the voters of Redlands adopted Proposition R, an initiative measure. Proposition R restricted develo...
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Opinion Petitioner Burlington Northern Railroad Company is the defendant below in a personal injury action brought by lames R. Noyes, a Burlington employee who was injured while off-duty but in the course of his employment. Petitioner seeks a peremptory writ of mandate or prohibition directing the court below to vacate its decision finding the settlement between Burlington and Noyes was n...
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Opinion The Monterey County Board of Supervisors (hereafter Board) and Rancho Canada de la Segunda, Inc. (hereafter Rancho), appeal from an order stating that the Board failed to comply with the trial court’s peremptory writ of mandate and that a use permit which the Board had issued to Rancho was invalid. We affirm. Statement of the Case and of the Facts Rancho applied for a us...
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Opinion I In 1976, an engineer from the California Division of Occupational Safety and Health (the division) inspected the United Airlines ground maintenance facility at San Francisco International Airport. As a result of his observations, the division cited and fined United for failing to provide a guardrail on an unenclosed elevated work platform that was being used by an employee ...
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*784Opinion The community of Yorba Linda has its own elementary school district, but is part of the Fullerton Joint Union High School District (Fullerton HSD). The State Board of Education (State Board) approved a plan (the Plan) to create a new Yorba Linda Unified School District1 and transfer responsibility for high school education of Yorba Linda students from the Fullerton HSD to the new dist...
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32 Cal.3d 816 (1982) 654 P.2d 193 187 Cal. Rptr. 423 CITIZENS AGAINST FORCED ANNEXATION et al., Plaintiffs and Respondents, v. LOCAL AGENCY FORMATION COMMISSION OF LOS ANGELES COUNTY et al., Defendants and Appellants. Docket No. L.A. 31414. Supreme Court of California. December 2, 1982. *818 COUNSEL John H. Larson, County Counsel, and Charles J. Moore, Deputy County Counsel, for Defendants and Ap...
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Opinion Plaintiff San Lorenzo Education Association CTA/NEA (Association) was the exclusive bargaining representative of the certificated employees of the San Lorenzo Unified School District (District) for the 1977-1978 academic year. The collective bargaining agreement in force contained an “organizational security” or “agency shop” provision that required employees to either join the un...
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Opinion Defendant appeals from a judgment of conviction following a plea of guilty entered pursuant to a plea bargain. His appeal raises the *858 question whether the agreement was violated by the failure of the trial court to implement one of the terms of the plea bargain and, if so, what is the proper remedy. The underlying facts arise out of the robbery of a restauran...
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Opinion Does the failure to file a timely notice of appeal from a decision of the Labor Commissioner in an administrative proceeding to recover wages require dismissal of an appeal from his order? I. Appellant, Donald L. Bren Company (Bren), employed respondent, J. George Pressler, as a real estate salesman in 1978. Pressler’s written contract of employment provided that he was to receive as comp...
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32 Cal.3d 932 (1982) 654 P.2d 225 187 Cal. Rptr. 455 JAMES RICHARD ODLE, Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. S.F. 24362. Supreme Court of California. December 10, 1982. *935 COUNSEL William E. Gagen, Jr., Merrill, Thiessen & Gagen and William T. Lowe for Petitioner. Quin Denvir, State Public Defender, as Amicus C...
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As will appear, I conclude that the safeguards established by the Legislature for such proceedings and followed herein adequately ensure notice and an opportunity to be heard, and provide a “meaningful hedge against erroneous action.” (Goss v. Lopez (1975) 419 U.S. 565, 583 [42 L.Ed.2d 725, 739, 95 S.Ct. 729].) John A. was expelled from San Bernardino High School for the remainder of the 1978-1979...
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Opinion Appellant, Sandra K., appeals from a judgment entered pursuant to Civil Code section 232, subdivision (a)(7), which terminated her custody and control over her daughter Elise. While the appeal was pending in the Court of Appeal, Elise’s adoptive placement had to be terminated, and she was returned to foster care. It is now conceded by both parties to the appeal that Elise is no longer adop...
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137 Cal.App.3d 948 (1982) 187 Cal. Rptr. 493 SAN JOSE COUNTRY CLUB APARTMENTS, Plaintiff and Respondents, v. COUNTY OF SANTA CLARA, Defendant and Appellant. Docket No. 47586. Court of Appeals of California, First District, Division Two. July 20, 1982. *951 COUNSEL Selby Brown, Jr., County Counsel, and Ann Miller Ravel, Deputy County Counsel, for Defendant and Appellant. Robert M. Myers, Acting Ci...
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*37 Opinion Appellant Kamal Sergill was convicted by a jury of violating Penal Code section 288a, subdivision (c) (oral copulation with a person under 14). He contends the trial court erred when it permitted opinion testimony by two police officers as to the victim’s credibility. We agree, and reverse the judgment. Appellant’s niece, who was eight years old at the time of trial, testified t...
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Opinion Defendant Jerald Abbot Adams was charged with assault with intent to commit murder (Pen. Code, § 217) and discharge of a firearm at an occupied building (Pen. Code, § 246). After opening statements at the commencement of the original trial, the court granted Adams’ motion for mistrial on the ground the district attorney had not previously given Adams’ counsel discovery of tapes and othe...
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Opinion Defendant, James Alvin Welch, was charged with murder (Pen. Code, § 187) and use of a firearm in the commission of the offense (Pen. Code, §§ 12022.5, 1203.06, subd. (a)(1)). His first jury trial ended in a mistrial. After a second jury trial, he was convicted of voluntary manslaughter (Pen. Code, § 192, subd. 1), a lesser and necessarily included offense of the murder charge. Defendant...
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Opinion Appellants Henry Ray Masten and Freddie James Matilton were each charged by information with one count of kidnaping, rape, oral copulation, and two counts of assault with a deadly weapon. (Pen. Code, §§ 207, 261; 288a, subd. (c); 245, subd. (a).) Each count alleged that Matilton used and Masten was armed with a firearm. (Pen. Code, §§ 12022.5; 12022, subd. (a).) Appellant Matilton ple...
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Opinion Statement of the Case On June 26, 1981, appellant pled guilty to assault with a deadly weapon (Pen. Code, § 245, subd. (a)) and admitted the enhancement of intentional infliction of great bodily injury in the commission of a felony (Pen. Code, § 12022.7). Appellant was 19 at the time that he committed the assault. A hearing was held to consider the probation report and recomm...
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Opinion Plaintiffs and appellants Wayne A. and Ann M. Ingebretsen appeal from an order of the San Francisco Superior Court to sell homestead and issue writ of execution against a dwelling house in which the homestead exemption was determined to be $40,000. We believe this exemption to be the correct one and so affirm the order. *959 Facts On August 6, 1976, a defaul...
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Opinion Della Coone, contestant of the will of Harold Hudson, appeals a judgment admitting the will to probate under Probate Code section 26. 1 Harold Hudson, a resident and domiciliary of San Diego County, made a will in 1977 while in Japan. The will, in the Japanese language and made with the assistance of a Japanese attorney, is stipulated to be valid in conformity with Ja...
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Opinion Real parties in interest 1 were plaintiffs in a libel suit against petitioners Penthouse International, Ltd., and Robert C. Guccione. After a lengthy jury trial resulting in a defense verdict, defendants filed a statement of disqualification pursuant to Code of Civil Procedure section 170 against Kenneth W. Gale, the judge who had presided over the trial. The statement of objection to...
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*1018Opinion Defendant was charged with, and after a trial by the court (trial by jury having been duly waived) was found guilty of possession of marijuana for sale, in violation of section 11359 of the Health and Safety Code. He has appealed; we reverse the conviction with directions. Acting on a tip that a man named Billy Connors was selling marijuana from a certain address, the police sent a kn...
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Opinion Jefferson Classroom Teachers Association (hereinafter Association) and certain certified teachers appeal from a judgment denying their motion for summary judgment and granting Jefferson Elementary School District’s (hereinafter District) cross-motion for summary judgment. Association and District entered into a collective bargaining contract on February 6, 1978. Article IV section A(l...
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*1048 Opinion Judy and Duane Kilburn appeal the dismissal of their action against Anselmo Pineda, M.D., contending the superior court erred in finding the statute of limitations had run. On November 21,1975, the Kilburns sued Pineda, alleging medical malpractice. The superior court found the one-year statute of limitations of Code of Civil Procedure section 340.5 began to run on the action ...
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Opinion The question presented on appeal is whether the City of Santa Clara (City) was under a duty to pass through to its ratepayers certain savings in costs of purchasing electrical power. For the reasons hereafter discussed following our grant of rehearing, 1 we again conclude no duty existed. Facts The City of Santa Clara owns and operates a municipal electrical u...
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*869 Opinion May the composition of a three-judge panel of a Court of Appeal be altered after oral argument so that one of the justices taking part in the decision of a case is a justice who has not participated in any part of the prior deliberations? I. Plaintiff, Jerry Moles, is a former employee of the University of California, Davis. He was first appointed to the Davis faculty for t...
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Opinion Defendants appeal from a judgment mandating them, as officers of the Department of Corrections: (a) to permit publication of two articles in the Soledad prison newspaper, the Star News; (b) to formulate guidelines limiting administrative censorship of the Star News to matters which would reasonably be deemed a threat to institutional security or which described the making of a weapon or ot...
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32 Cal.3d 892 (1982) 654 P.2d 775 187 Cal. Rptr. 592 JAMES DOUGLAS CARROLL, a Minor, etc., Plaintiff and Respondent, v. ABBOTT LABORATORIES, INC., Defendant and Appellant. Docket No. L.A. 31481. Supreme Court of California. December 10, 1982. *894 COUNSEL Overton, Lyman & Prince, Laurence H. Schnabel and Jon P. Kardassakis for Defendant and Appellant. Lee W. Landrum for Plaintiff and Responde...
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Opinion Petitioner seeks writ of mandate compelling the trial court to grant petitioner’s request for a writ of possession to recover telephone equipment leased to real party in interest. Real party’s only defense to the claim of possession is that the equipment was defective. We conclude that real party’s alleged right to damages based upon the defects is independent of petitioner’s right to poss...
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Opinion Defendant was charged with: (count I) involuntary manslaughter of Bruce Burton, in violation of subdivision 2 of section 192 of the Penal Code; (count H) involuntary manslaughter of David George, in violation of subdivision 2 of section 192 of the Penal Code; (count III) violation of section 5157 of title 8 of the California Administrative Code, in violation of section 6423 of the Labor Co...
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138 Cal.App.3d 123 (1982) 187 Cal. Rptr. 612 THE PEOPLE, Plaintiff and Respondent, v. DWAYNE WILLIAM THOMPSON, Defendant and Appellant. Docket No. 41981. Court of Appeals of California, Second District, Division Five. November 15, 1982. *125 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Rosendo Pena, Jr., Deputy State Public Defender, for Defendant and ...
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Opinion Defendant was convicted of murder in the first degree (Pen. Code, § 187) and rape (Pen. Code, § 261, former subds. 2 and 3), and the alleged special circumstance that the murder occurred during the commission of the rape (Pen. Code, § 190.2, subd. (a)(17)(iii)) was found true. He was subsequently found to have been sane at the time of the commission of the murder and rape. Defenda...
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Opinion Petitioners have sought an extraordinary writ to compel the trial court to vacate its order denying their motion for summary judgment, and to enter a contrary order. For reasons we shall explain, we consider this to be one of the exceptional cases in which relief at the pleading stage of a pending action is warranted. (See Babb v. Superior Court (1971) 3 Cal....
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Opinion In this case the workers’ compensation trial judge denied applicant’s claim for benefits on the grounds that the applicant’s intoxication was a substantial factor in the accident which resulted in his injury.1 *44The Workers’ Compensation Appeals Board (Board) granted reconsideration and in its opinion, order and decision after reconsideration opined that the defendant employer had “not me...
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Opinion In this decade-long school desegregation case, the trial court has issued an “amendment to mandate” in response to the remand of the case by the California Supreme Court. The San Bernardino City Unified School *72District has appealed. We reverse, because the trial court incorrectly followed the directions of the Supreme Court. I. Believing that the San Bernardino City Unified School Distr...
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Opinion This is an appeal from a judgment of conviction, after appellant, Don Carmon Albritton, pled guilty to two charges of receiving stolen property in violation of Penal Code section 496. The sole issue on appeal tests the validity of the trial court’s denial of appellant’s Penal Code section 1538.5 motion to suppress evidence. For the reasons to be explained herein, we con- *82 elude tha...
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Opinion Juan Ramirez Castro, appellant, filed on December 2,1982, a motion to settle the record on appeal, pursuant to California Rules of Court, rule 36(b), and to extend the time for filing his opening brief to 30 days from the filing of the settled statement.1 Appellant seeks to obtain a settled statement of an unreported in-chambers discussion between the trial court judge and appellant’s coun...
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*4 Opinion Raymond Luden Reynaud, M.D., a psychiatrist enrolled as a provider of publicly funded health services under California’s Medi-Cal statute (Welf. & Inst. Code, § 14000 et seq.), is accused by information of grand theft (Pen. Code, § 487, subd. 1) and of 10 counts of presenting false Medi-Cal claims (Welf. & Inst. Code, § 14107). The evidence introduced against him at pr...
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Opinion The City of Los Angeles (appellant or the City) appeals from a judgment awarding Klopping damages in the form of interest in the amount of *116 $268,500, attorneys fees of $104,000, appraiser’s fees of $20,000 and miscellaneous costs of $9,805 to Property Owners (respondents or Property Owners). 1 On August 21, 1968, the board of airport commissioners passed a resolution to cond...
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Opinion Leland McCoy was the record owner of two parcels of real property in the County of Los Angeles which in July of 1976 were deeded to the State of California as a result of the owner’s failure over a period of time to pay property taxes levied thereon. (See Rev. & Tax. Code, §§ 3351, 3361, 3511.) On May 12, 1977, McCoy conveyed his interest in the realty to respondent A. E. Sandorf, Inc., b...
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Opinion Petitioner, a commercial tenant, seeks writ of mandate to vacate a judgment in unlawful detainer and to require the trial court to hear petitioner’s defense of retaliatory eviction. 1 The defense raises a claim that Ronald R. MacAnnan, real party in interest, terminated petitioner’s *92 tenancy because petitioner’s officers and employees refused to perjure ...
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Opinion After unsuccessful motions to suppress evidence and traverse search warrant (Pen. Code, § 1538.5), defendant Joseph Codinha pleaded guilty to possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a)), a lesser included offense to the charge contained in the information (Health & Saf. Code, § 11378). Codinha was placed on three years’ probation conditioned upon service of ...
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Opinion Defendants appeal from an order denying their motion to vacate a judgment by confession. We reverse the order. Plaintiff and defendant Joseph Infante had a dispute over monies allegedly due from Joseph to plaintiff. They agreed on a settlement of that dispute, which included the execution by Joseph and his wife of a promissory note and of a confession of judgment. The parties then wen...
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Opinion From the uncontested, but limited record before us,1 it appears that on November 22, 1970, when respondent Walter Dwyer was eighteen years of age, he was accused in the present proceeding (Los Angeles Superior Court case No. A509798) with having committed a residential nighttime burglary. Approximately two weeks later he was again arrested and charged in a Riverside County action in three...
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Opinion Defendant was convicted of reckless driving (Veh. Code, § 23103). His appeal was transferred to this court from the appellate department of the superior court pursuant to rule 62(a), of the California Rules of Court. The facts are these:1 while on routine patrol, with a fellow officer, Los Angeles Police Department Officer Souza observed a motorcycle traveling 55 miles per hour in a 25 mil...
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Opinion The Municipal Court of Ventura County, Civil Division, (Municipal Court) appeals from a Superior Court of Ventura County (Superior Court) order mandating the Municipal Court to comply with certain directives relating to the underlying small claims action for past due rent of real parties in interest Greenwood and Snyder (Greenwood and Snyder) against Frank J. Lekse, Jr. (Lekse). ...
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Opinion During the pretrial skirmishing between plaintiff Cal-American Income Property Fund VII, a California limited partnership (Fund VII), and defendants Brown Development Corporation and Richard T. Brown (collectively Brown), the trial court authorized and confirmed the receiver’s private sale of a shopping center, the subject of the litigation between the parties. Because we conclude...
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Opinio’1 .ara Holmes and defendant Speckman ,c to a certain parcel of real property in * r& & ./-foot strip of real property lying between plaintiffs ’ ...
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Opinion Victor and Helen Hess appeal from a judgment denying their petition for writ of administrative mandamus, which sought to compel respon *234 dent to set aside its decision holding that appellants unlawfully discriminated against real parties in interest. Real parties in interest John Pryor and Debbie Rodgers reached an agreement to rent a duplex owned by appellants, and paid a deposi...
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Opinion Defendant appeals from a judgment of conviction after a jury found him guilty of theft and unlawful driving or taking of a vehicle. (Veh. Code, § 10851.) Defendant was acquitted of the charge of receiving stolen property. (Pen. Code, § 496.) The prosecutor also charged two prior felony convictions for the purpose of sentence enhancement (Pen. Code, § 667.5, subd. (b)), and to preclude prob...
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33 Cal.3d 189 (1982) 654 P.2d 1257 187 Cal. Rptr. 730 In re THOMAS HERCULES PIPINOS on Habeas Corpus. Docket No. Crim. 22122. Supreme Court of California. December 10, 1982. *192 COUNSEL Nicholas De Pento for Petitioner. Quin Denvir, State Public Defender, and Marjorie C. Swartz, Deputy State Public Defender, as Amici Curiae on behalf of Petitioner. George Deukmejian, Attorney General, Robert H. ...
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33 Cal.3d 152 (1982) 654 P.2d 1307 187 Cal. Rptr. 779 In re RICHARD TREEN MUDGE on Suspension. Docket No. L.A. 31544. Supreme Court of California. December 20, 1982. *153 COUNSEL Rutan & Tucker and Garvin F. Shallenberger for Petitioner. Herbert M. Rosenthal, Truitt A. Richey, Jr., and Scott J. Drexel for Respondent. OPINION THE COURT.[*] This is a proceeding to review the recommendation of t...
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Opinion — May a defendant who has been sentenced to a “life” imprisonment under the Indeterminate Sentence Law (ISL) (former Pen. Code, § 1168, repealed eff. Jan. 1, 1977) be entitled to parole release consideration under both ISL and the administrative guidelines which were in effect at the time he was sentenced and also under the Uniform Determinate *178 Sentencing Act of 1976 (DSL) (Pen. C...
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Opinion Cross-complainant and appellant David Smith Bonds (Bonds) appeals from a judgment of dismissal entered in favor of cross-defendant and respondent State of California (State) acting by and through the California Highway Patrol (CHP) as a result of a demurrer filed by the State to Bonds’ first amended cross-complaint for indemnity, equitable contribution and declaratory relief. The State dem...
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Opinion Respondents brought an action against appellants for 1) “Interference with Advantageous Business and Contractual Relations,” and 2) violatiohs of the Cartwright Act (Bus. & Prof. Code, § 16700 et seq.). The tort action was abandoned after the trial court’s ruling that the damages sought by it were de minimis. The Cartwright Act antitrust case proceeded to jury trial, af...
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*438 Opinion Introduction Clemens A. Hackethal, M.D., filed a petition for a peremptory writ of mandate in Superior Court in San Bernardino County. Named as respondents were the California Medical Association (CMA) and the San Bernardino County Medical Society (SBCMS). The objective of the petition was to obtain a peremptory writ ordering respondents to reinstate petitioner ...
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138 Cal. App. 3d 159 (1982) 187 Cal. Rptr. 820 In re ANTHONY H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ANTHONY H., Defendant and Appellant. Docket No. 26801. Court of Appeals of California, Fourth District, Division One. December 15, 1982. *161 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Jeffrey J. Stuetz, ...
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*130 Opinion Plaintiffs appeal from an order granting motion to quash out-of-state service of process 1 upon two of the defendants in an action to recover compensatory and punitive damages for libel, invasion of privacy and intentional infliction of emotional distress. The verified complaint alleges: Defendant National Enquirer, Inc. is a Florida corporation trans...
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138 Cal.App.3d 149 (1982) 187 Cal. Rptr. 832 DEPARTMENT OF VETERANS AFFAIRS, Plaintiff, Cross-defendant and Respondent, v. LEON DELL DUERKSEN et al., Defendants, Cross-complainants and Appellants. Docket No. 21005. Court of Appeals of California, Third District. December 15, 1982. *151 COUNSEL Fred Crane and Alan L. Green for Defendants, Cross-complainants and Appellants. Howell Y. Jackson and H....
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Opinion At issue herein is the amount of death benefits for which the employer’s workers’ compensation insurance carrier is liable where the deceased worker leaves surviving him only partial dependents. Under compulsion of Department of Industrial Relations v. Workers’ Comp. Appeals Bd. (Tessler) (1979) 94 Cal.App.3d 72 [156 Cal.Rptr. 183], (disapproved in Atla...
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138 Cal. App. 3d 256 (1982) 187 Cal. Rptr. 845 MOBIL OIL CORPORATION, Plaintiff and Respondent, v. AUGUST P. ROSSI, JR., et al., Defendants and Appellants. Docket No. 24670. Court of Appeals of California, Fourth District, Division One. December 17, 1982. *259 COUNSEL Shapiro, Laufer, Posell & Close, David Laufer and James H. Lehr for Defendants and Appellants. Buchalter, Nemer, Fields, Chrys...
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Opinion The question presented by this appeal, one of first impression and considerable significance, is whether the State of California may constitutionally impose its law requiring cumulative voting by shareholders upon a corporation which is domiciled elsewhere, but whose contacts with California, as measured by various criteria, are greater than those with any other jurisdiction. ...
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Opinion Andrade Development Company (Andrade) appeals an adverse judgment in its action for breach of a real estate sales contract. In its original complaint, Andrade sought specific performance or, alternatively, damages from the sellers, Arnold and Ardismae Martin. The court sustained a demurrer without leave to amend as to Ardismae because the realty in question was community property and ...
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Opinion This is a writ petition for review from an award made in a Workers’ Compensation Appeals (board) Board order. The facts are that on October 26, 1973, Thomas Finnerty, Jr., filed a petition claiming that from December 3, 1947, he had sustained an injury to his nervous system while working as a Deputy District Attorney for the County of Los Angeles. On January 20, 1976, an opinion and d...
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Opinion Plaintiff Sammons & Sons appeals from a judgment dismissing its action against defendant Ladd-Fab, Inc., after defendant’s demurrer to plaintiff’s “Complaint for Money Damages, Accounting of Profits, and Permanent Injunctive Relief on Account of Unfair Business Competí *308 lion and Practices; and for Declaratory Relief” was sustained without leave to amend. The ...
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Opinion E. L. White, Inc. and the City of Huntington Beach were unsuccessful codefendants in two lawsuits, a wrongful death action and a personal injury action, both of which arose from the same accident. After paying half of the judgments in both cases, Royal Globe Insurance Companies (White’s insurer) and White filed suit against Huntington Beach for indemnity. Prior to trial on the ind...
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Opinion Ralph W. Recknor has appealed from an order that he pay Eve Lynn Recknor spousal support pendente lite and pay her attorney fees. Facts Eve Lynn Recknor was formerly married to Gerard Cautero. On May 4, 1965, a complaint for divorce was filed in Los Angeles by Eve Lynn Cautero against Gerard Cautero, on the ground of extreme cruelty. *541 Eve and Ralph Recknor were married on Ma...
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Opinion The State of California and the State Attorney General appeal from the judgment entered in favor of the City of Los Angeles declaring subdivision (d) of Government Code section 65860 to be “unconstitutional on its face for the following reasons: a. It is vague and unintelligible, b. It purports to intrude into matters traditionally reserved to municipalities without any...
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Opinion C. L. Pharris Sand & Gravel, Inc. (employer) and Fidelity and Casualty Company of New York, the employer’s workers’ compensation insurance carrier, petitioned for review of an order of the Workers’ Compensation Appeals Board (Board) denying reconsideration of an order determining that an injury to the applicant, James R. Lindsey, is fully compensable under the Workers’ Compensatio...
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Opinion Gregory St. Germain appeals from the entry of a judgment of conviction after a jury found him guilty of grand theft (Pen. Code, § 487, subd. I), 1 receiving stolen property (§ 496, subd. 1), and robbery (§ 211), and he admitted that he had served a prior prison term within the meaning of section 667.5, subdivision (b). We affirm. Facts Prosecution’s Case Ms. Maruja Smith, wh...
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