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All Reporters → cal-rptr → Volume 264

Opinions in cal-rptr Volume 264

Opinion Appellant Joseph A. Songer appeals a judgment dismissing his petition for a writ of mandate to compel respondent Francis M. Cooney, Clerk-Recorder for the County of San Luis Obispo (clerk), to issue a writ of execution and to compel respondent George Whiting, Sheriff of the County of San Luis Obispo (sheriff), to levy upon certain property of the real party in interest Lawrence Bo...
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*244 Opinion In this writ proceeding, petitioners Jones T., Sr., and Anne T. challenge an order of the juvenile court after a permanency planning hearing. The order, in part, directed county counsel to initiate proceedings to terminate their parental rights under Civil Code section 232. Jones and Anne want the case remanded for a reevaluation of the permanency plan, specifically to (1) have t...
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*964 Opinion This appeal is a consolidation of two appeals filed by plaintiff/appellant Faye Coats (appellant). 1 One challenged the dismissal with prejudice of her first four causes of action following a judgment on the pleadings in favor of defendant/respondent K-Mart Corporation (K-Mart); the second challenged the granting of the motion for nonsuit made by responden...
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215 Cal.App.3d 1163 (1989) 264 Cal. Rptr. 17 FIDELITY NATIONAL TITLE INSURANCE COMPANY, Plaintiff and Appellant, v. CLAYTON L. MILLER, Defendant and Respondent. Docket No. D008990. Court of Appeals of California, Fourth District, Division One. October 26, 1989. *1168 COUNSEL Peter C. Holzer and Thomas Allan Shaw for Plaintiff and Appellant. Duke, Gerstel, Shearer & Bregante, Richard D. Bregan...
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*827 Opinion The primary issue presented by this appeal is whether an insurance company has a duty to defend or indemnify an insured under a business liability policy in an action between the insured and its client for securities fraud. We hold the insurance company has no such duty and affirm the judgment. Background The Third Party Complaints In November 1986...
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*1413Opinion The People, petitioner in this proceeding, filed an amended petition for forfeiture in respondent superior court, alleging that monies paid to certain lawyers and law firms (defense attorneys) by their respective clients were traceable to exchanges of controlled substances, and were thus subject to forfeiture under the provisions of Health and Safety Code section 11470 et seq. Respon...
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Opinion Gordon J. Ceresino appeals a judgment entered against him and in favor Of Fire Insurance Exchange and Farmers Insurance Group (collectively Farmers). The parties stipulated to the judgment to allow review of two pretrial rulings. Ceresino objects to the . court’s determination he is collaterally estopped from contending Farmers should indemnify him for a prior stipulated liability judgm...
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Opinion Biophysica Foundation, Inc. (Biophysica), defendant and cross-complainant below, appeals from the judgment entered in favor of Roll Hancock Torrey Pines on Roll’s complaint, and from the judgment entered in favor of cross-defendants Roll and The Hartford Group on Biophysica’s cross-complaint, and from various related orders. Many issues are raised on appeal, the resolution of whic...
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Opinion This original proceeding in mandate presents the narrow “good-faith settlement” issue of whether a defendant tortfeasor’s waiver of litigation costs in settling with a plaintiff constitutes “consideration paid” for the settlement within the meaning of section 877 of the Code *954 of Civil Procedure, 1 so as to reduce plaintiff’s total recovery against nonse...
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Opinion In a personal injury action, two defendants, by separate petitions for writ of mandate, seek to compel the trial court to grant their *936 motions for summary judgment on the basis of a release signed by the plaintiff before his injury. Plaintiff is a professional automobile and race car mechanic and an experienced race car driver. On January 15, 1984, he compete...
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Opinion Grant Donald Church was convicted by jury of four counts of burglary (Pen. Code, 2 § 459), one count of grand theft (§ 487, subd. 1) and three counts of petty theft (§ 484). As to each count of petty theft, the jury found true allegations that Church had been previously convicted of and imprisoned for burglary (§ 666). 3 Church was sentenced to a total term of three years in priso...
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Opinion La Costa Land Company (La Costa) was a corporation engaged in the development and sale of residential realty. It developed and marketed a multi-unit project called La Costa South Unit No. 1. In June of 1968 La Costa caused to be recorded a “Declaration and Establishment of Protective Conditions and Restrictions” (the CC&Rs) which purported to establish restrictions of various kind...
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215 Cal.App.3d 1226 (1989) 264 Cal. Rptr. 60 THE PEOPLE, Plaintiff and Respondent, v. DAVID RONALD BERMUDEZ, Defendant and Appellant. Docket No. A044409. Court of Appeals of California, First District, Division Three. November 20, 1989. *1227 COUNSEL Juliana Drous, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Richard B. Iglehart, Ch...
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Opinion S. L. Rey, Inc. (Rey), has sued Michael J. La Paglia (La Paglia) to impose a constructive trust on real property purchased with funds which Rey alleges La Paglia wrongfully withheld from Rey’s predecessor in interest. In these original proceedings, La Paglia seeks a peremptory writ of mandate after the superior court denied his motion to expunge a notice of lis pendens filed by Re...
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Opinion Jimmie Johnson appeals from an order dismissing his petition filed under Probate Code section 17200. The dismissal order was entered on January 6, 1989. We treat the order as a judgment that is appealable pursuant to Probate Code section 17207. Factual Background Vincent Miranda and George Tate (respondent herein) each created “Living Trusts” on January 28, 1983. Each trust was iden...
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Opinion In this action for medical malpractice, plaintiff Doretha McAdory appeals from “the judgment.” That judgment awarded Ms. McAdory $218,400 against defendant Dr. William C. Rogers, M.D. Ms. McAdory contends that the trial court improperly applied the $250,000 cap in noneconomic damages embodied in Civil Code section 3333.2 1 in reducing the jury’s award. Dr. Rogers initia...
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Opinion This appeal is taken from a judgment entered in favor of plaintiff and respondent Zanker Development Co. (Zanker) and against defendants and appellants (Cogito), Ching Fong Investment U.S.A. Corp. (Ching Fong) and Su Shiong Huang (Huang). The judgment was against Cogito for breach of a written lease agreement and against Ching Fong and Huang for breach of their written guarantees ...
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215 Cal.App.3d 1390 (1989) 264 Cal. Rptr. 80 Conservator of the Person and Estate of FRANCIS STARR. JOHN TRUITT et al., as Conservators, etc., Petitioners and Appellants, v. LISBETH HIBBARD et al., Objectors and Respondents. Docket No. A042722. Court of Appeals of California, First District, Division One. November 22, 1989. *1392 COUNSEL Priscilla Camp for Petitioners and Appellants. Jerome Marks...
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Opinion This appeal presents a narrow jurisdictional question of the power of the superior court, sitting in probate, to set aside a deed executed by a conservator before the conservatee’s death. The facts and procedural history relevant to this question can be briefly stated. Francis Starr was a widower, residing in Berkeley, California, who experienced declining health in the years after the dea...
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Opinion Factual and Procedural Background Dr. David B. Kaye is an ophthalmologist with an emphasis on refractive and cataract surgery. He began practicing in Fresno in 1980. Between *1480 October 1982 and April 1984 Saint Agnes Medical Center monitored all Dr. Kaye’s cases, preoperatively, intraoperatively, and postoperatively. Saint Agnes Medical Center informed Dr. Kaye that the restricti...
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Opinion Thomas Bradley Oliver appeals his misdemeanor conviction by a jury of violating Vehicle Code section 23152, subdivision (a) (driving a vehicle while under the influence of an alcoholic beverage). The trial court dismissed another count after the jury was unable to reach a verdict on whether he violated Vehicle Code section 23152, subdivision (b) (driving with a blood-alcohol level of 0.10 ...
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49 Cal.3d 868 (1989) 782 P.2d 232 264 Cal. Rptr. 93 Estate of ESTHER ROYCE TRYNIN, Deceased. RICHARD W. ECKARDT et al., Petitioners and Appellants, v. MARCIA D'ESOPO et al., as Co-administrators, etc., Objectors and Respondents. Docket No. S008320. Supreme Court of California. November 27, 1989. *870 COUNSEL Richard W. Eckhardt, in pro. per., Eckardt & Ruonala, Kenneth R. Ruonala, Pachter, Go...
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*871Opinion Probate Code section 910 provides that attorneys for executors and administrators of a decedent’s estate shall be allowed fees from the estate for conducting the ordinary probate proceedings and “such further amount as the court may deem just and reasonable for extraordinary services.” (See also, Prob. Code, § 469 [attorney fees for extraordinary services to special administrator]; al...
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Opinion The Commission on Judicial Performance (Commission) has recommended that Judge Kenneth Lynn Kloepfer, a judge of the San Bernardino Municipal Court District, be removed from office. On petition by Judge Kloepfer, we consider that recommendation which is based on findings by the Commission that Judge Kloepfer committed five acts of wilful misconduct and twenty acts of conduct prejudicial...
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49 Cal.3d 908 (1989) 782 P.2d 264 264 Cal. Rptr. 125 DONALD J. GOLD, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent. Docket No. S008838. Supreme Court of California. November 30, 1989. *910 COUNSEL Donald J. Gold, in pro. per., for Petitioner. Diane C. Yu, Truitt A. Richey, Jr., Marta B. Galeano and Major Williams, Jr., for Respondent. OPINION THE COURT. We review the recommendation of th...
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Opinion We review the recommendation of the State Bar Court that petitioner Wendy Lynn Slavkin be suspended from the practice of law for three years, that the suspension order be stayed, and that she be placed on probation for five years on specified conditions including actual suspension for the first year. These proceedings are based in part upon stipulated facts. Once again, we co...
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Opinion We granted review to address “[o]ne of the most controversial questions of classification” for purposes of taxation in the law of fixtures, that of electronic data processing equipment. (1 Ehrman & Flavin, Taxing Cal. Property (3d ed. 1988) § 3:04, p. 10; see Allstate Ins. Co. v. County of Los Angeles (1984) 161 Cal.App.3d 877 [207 Cal.Rptr. 888]; Secur...
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Opinion In consolidated appeals, real party in interest and appellant Central Bank (the Bank), appeals from orders of the superior court directing the Bank to turn over to plaintiff and respondent Insurance Commissioner of the State of California (Commissioner), as liquidator of defendants California Standard Indemnity Company (California Standard) and Great Global Assurance Company (Great Global...
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Opinion American Bankers Insurance Company of Florida (America), for itself and its agents, appeals from an order denying its motion to set aside summary judgment and to exonerate its bail bond. 1 Richard Powe, defendant in this matter, was released on a $4,000 bail bond posted by American and Albert Ramirez Bail Bonds. Powe pleaded guilty and a probation and sentencing hearing was set for ...
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Opinion In this action to foreclose a mechanic’s lien, Sobeck and Associates, Inc. appeals from a judgment in favor of B & R Investments No. 24 and Bestor Engineers, Inc. 1 In the proceedings below, Sobeck, Inc. had amended its complaint under the fictitious names statute, Code of Civil Procedure section 474, to substitute a named defendant in place of a previously designated D...
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Opinion A jury convicted the defendant of second degree murder of her husband in August 1986. (Pen. Code, §§ 187, 189.) 2 The jury also found that the defendant personally used a firearm. (§ 12022.5.) Defendant was sentenced to 15 years to life, and the firearm use enhancement was stayed. Defendant contends that the trial court erred: (1) in excluding expert testimony that the defendant was...
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Opinion Article I, section 1 of the California Constitution declares that privacy is among the people’s “inalienable rights.” The principal question in this appeal is whether a private employer violates that constitutional provision by asking all job applicants to consent to a urinalysis which tests for alcohol and other drugs as a condition of an offer of employment. The applicants have ...
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215 Cal.App.3d 1220 (1989) 264 Cal. Rptr. 208 ANDRE CARPIAUX, Plaintiff and Respondent, v. PERALTA COMMUNITY COLLEGE DISTRICT, Defendant and Appellant. Docket No. A038271. Court of Appeals of California, First District, Division One. November 20, 1989. *1222 COUNSEL Jon A. Hudak for Defendant and Appellant. Gregor D. Guy-Smith for Plaintiff and Respondent. [Opinion certified for partial publicati...
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215 Cal.App.3d 1257 (1989) 264 Cal. Rptr. 210 In re the Marriage of RONNA H. and ALLAN M. BERLAND. RONNA H. BERLAND, Appellant, v. ALLAN M. BERLAND, Respondent. Docket No. A043835. Court of Appeals of California, First District, Division Five. November 20, 1989. *1260 COUNSEL Hadden Roth and Roth, Thorner & Curtin for Appellant. Paul Camera, Camera & Colyer, Richard Sherman and DeGoff &am...
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Opinion In this case we hold that the trial court, in granting a motion to modify a Richmond spousal support order, possesses broad discretion not only as to how long to extend the order, but also as to the amount of spousal support ordered to be paid during the extension. A Richmond order is normally issued with the expectation that if the supported spouse exercises reasonable diligence, he or s...
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Opinion After denial of his pretrial motion to suppress evidence pursuant to Penal Code section 1538.51 and exhaustion of his pretrial remedies of review of that denial, Robert Samuel Hallman pleaded guilty of driving under the influence of intoxicating beverages (Veh. Code, § 23152(b)). He then unsuccessfully appealed to the appellate department of the San Diego Superior Court arguing his pretri...
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Opinion In a companion case decided today (People v. Hallman, ante, p. 1330 [264 Cal.Rptr. 215]), this court concluded that “contrary to the procedure adopted in Wilder v. Superior Court [(1979)] 92 Cal.App.3d 90, . . . trial court[s] can, by local rule, require the moving party in [Penal Code] section 1538.5 motions to set forth with specificity the grounds and theories to support the ...
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Opinion Business and Professions Code section 6146 1 enacted as a part of the Medical Injury Compensation Reform Act of 1975 (MICRA) limits the amount of fees an attorney may obtain in a medical malpractice action when representing a party on a contingency fee basis. If periodic payments are awarded to the plaintiff under section 667.7 of the Code of Civil Procedure, section 64...
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Opinion This appeal tenders the question whether family support investigators employed by the District Attorney of the County of Sutter are entitled to enhanced retirement benefits (Gov. Code, § 21251.13) 1 as “county peace officers” under section 20021.5 when his practice and policy is to enforce parental support obligations primarily by civil rather than criminal action. ...
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Opinion Appellant Adamson Gbadebo-Soda appeals from a judgment entered on a jury verdict finding him guilty of two counts of *1373 failure to appear (counts II and III; Pen. Code, § 1320, subd. (b)). 1 The jury failed to agree on a third count of escape (count I). Procedural Facts On August 26, 1987, an information was filed charging appellant with escape...
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Opinion This is a case in which the defendant’s sole challenge is to the application of one of the recidivist statutes. The challenge relates to whether one of his prior offenses satisfies a criterial predicate for the imposition of a life term in prison without possibility of parole for 20 years under Penal Code section 667.7 (subsequent undesignated section references are to this code)....
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Opinion In her complaint plaintiff and petitioner Linda Denari contends that while being booked into the Kern County jail on July 21, 1985, the authorities, using excessive force, broke her arm. She asserts claims for negligence, intentional tort and violation of 42 United States Code section 1983, the federal civil rights cause of action. Named defendants include the County of Kern, Rita Prunt...
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Opinion Petitioners State Farm Fire and Casualty Company and State Farm adjuster Don Dennison (together State Farm) seek mandate directing the superior court to vacate its ruling denying State Farm’s motion for summary judgment on Aegea Homeowners Association, Inc.’s (Aegea) complaint for breach of the duty of good faith and fair dealing, breach of statutory duties and breach of contract....
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Opinion Here, we consider whether the covenants, conditions and restrictions (CC&Rs) of a publicly subsidized condominium project validly can require owner occupancy and forbid the leasing of units. Michael Shawn McKenna appeals from a judgment against him on the City of Oceanside’s (City) suit for injunctive and declaratory relief seeking to enforce such restrictions at the Sea Village c...
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Opinion Lon Albert Sullivan appeals his convictions for manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)), possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)), possessing methamphetamine for sale (Health & Saf. Code, § 11378), and driving without a license (Veh. Code, § 14601.1, subd. (a)). On appeal, he contends the court committed instructional and...
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Opinion Cancún Homeowners Association, Inc., appeals a summary judgment granted in favor of the City of San Juan Capistrano (the City). Specifically, Cancún objects to the trial court’s conclusion that the City is immune from prosecution for negligence in the issuance of building and grading permits. I In 1986 Cancún filed a complaint for damages suffered by its condominium unit owners from...
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Opinion In a civil forfeiture proceeding brought by the People pursuant to Health and Safety Code section 11470 et seq.,1 the trial court rendered a judgment which (1) declared $6,500 in United States Currency forfeited to the People, and (2) awarded the People the sum of $6,500 against appellant Robert D’Ambrosia. The judgment indicated that civil liability was imposed upon appellant because the...
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Opinion Do Vehicle Code sections1 23202 and 23206, which prohibit diversion “in any” driving under the influence case, make an exception for a developmentally disabled defendant? Our answer is no. Procedural and Factual Background On October 22, 1986, defendant was charged with misdemeanor violations of section 23152, subdivision (a), driving under the influence of alcohol, and section 23152, sub...
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Opinion This case involves questions of corporate successor liability. Appellant Cooper Laboratories, Inc. (Cooper) appeals from an order of the San Francisco Superior Court holding it potentially responsible, as successor in interest, for all damages allegedly incurred by Sandra and Michael Phillips (Phillipses) as the result of Sandra’s exposure to diethylstilbestrol (DES) in úter...
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Opinion Statement of Facts Plaintiffs Mary Meninga and William Meninga appeal from a judgment of involuntary dismissal (Code Civ. Proc., § 581, subd. (f)(1)). The judgment followed the trial court’s order sustaining a demurrer to plaintiffs’ second amended complaint without leave to amend. Plaintiffs had alleged causes of action for employment discrimination, defamation, intentional ...
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Opinion Statement of the Case and Facts At approximately 4 a.m. on February 29, 1988, Florence W. was asleep in her chair when she heard a crash. Someone had broken her sliding glass door to gain entry to her apartment. The assailant started to strangle her with his hands. He punched her in the face, pulled her off the chair, ripped off her clothes, and attempted to rape her. When he was unsu...
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Opinion We review the unanimous recommendation of the Review Department (the department) of the State Bar Court that petitioner, Richard A. Phillips, be disbarred from the practice of law in California. Petitioner asks this court to reject the department’s recommendation. He contends that the department’s conclusions are not supported by the law, that the department ignored mitigating circums...
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Opinion In this proceeding under section 6083, subdivision (a), of the Business and Professions Code and rule 952(a) of the California Rules of Court, we review the decision of the State Bar recommending that petitioner Barry Gerald Sands be disbarred from the practice of law in California as discipline for professional misconduct. A hearing panel of the State Bar Court (hereafter the hea...
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Opinion Petitioner George N. Seide challenges the decision of the Review Department of the State Bar Court refusing to certify him for admission to the bar on the ground that he lacks good moral character. We agree with the review department and decline to admit petitioner to practice. I. Background In February 1987, the State Bar informed petitioner he had passed the California Bar examina...
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Opinion Michael Wayne Hunter appeals (Pen. Code, § 1239, subd. (b)) 1 from a judgment of death following his conviction of the murders (§ 187) of Jay and Ruth Hunter. The jury also found true the allegation that defendant had personally used a firearm in the commission of the murders (§ 12022.5), and the special circumstance allegation that defendant was convicted, in this proceeding, of more...
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Opinion This appeal is from a judgment of death under the 1978 death penalty law (Pen. Code, § 190.1 et seq.; all further statutory references are to this code unless otherwise indicated). Defendant Kenneth Burton Lang, Jr., was convicted by a jury of the first degree murder (§ 187) and robbery (§211) of Thurman Anderson. The jury found as a special circumstance that the murder was committed in th...
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*1073Opinion We review the recommendation of the majority of the Review Department of the State Bar Court (review department) that petitioner Barbara Jean Silva-Vidor be suspended for five years, that the order of suspension be stayed, and that she be placed on probation for five years subject to certain conditions. Recommended conditions of probation include actual suspension from the practice o...
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Opinion This legal malpractice case resulting in a judgment of approximately $1.1 million, in favor of the plaintiff, Chester A. Holliday, is the aftermath of the events described in our unpublished opinion in People v. Holliday, reversing Holliday’s conviction of involuntary manslaughter relating to the killing of his wife. (See People v. Holliday ...
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Opinion In a petition dated December 12, 1988, it was alleged minor came under the provisions of Welfare and Institutions Code section 602 because he escaped while in the custody of the Orange County probation officer on “home confinement.” (Welf. & Inst. Code, § 871.) The petition was sustained after a court trial. Thereafter, on January 19, 1989, a subsequent petition was filed charging...
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Opinion The individual owners of the separate parcels of land located in the Concord Park and Shop Center on Willow Pass Road in *1091 Concord (the Concord Center) appeal from a judgment in condemnation finding that their nonexclusive appurtenant easement rights condemned herein were of no value, and ordering nothing in compensation for the taking thereof by the Redevelopment...
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Opinion The superior court found appellant Lani Castro Cruz (Cruz) was the sole known heir for and entitled to possession of the whole of an estate which had escheated to the state. In this appeal Cruz challenges the portion of the court’s order prohibiting immediate distribution of the estate. She asserts she is entitled to immediate distribution and the state agrees. We also find delaying the...
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Opinion This is an appeal from the trial court’s decision awarding costs and attorney fees to respondents in an action arising from the sale of real estate. I. Background Facts In March 1982 plaintiffs Gary and Kathy Pirkig (respondents) purchased a home in Benicia, California, from James Cook and Joseph Eystad (sellers). Respondents were represented in the transaction by defend...
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Opinion The City Council of the City of Redlands (City) and its individual members (collectively, City Council) appeal from an order of the trial court granting the petition of Stephen R. Selinger (Selinger) for a writ of mandate. The writ requires the City Council to acknowledge that Selinger’s tentative tract map was deemed approved because the City Council failed to act on the applicat...
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Opinion Bruce Wight appeals from order of October 18, 1988, denying his motion to quash writ of execution for unpaid child support and interest thereon in the sum of $30,596.40, based on a 1970 interlocutory judgment of dissolution of marriage which ordered him to pay child support of $25 per week beginning March 14, 1970. 1 Factual Background Bruce and Sharon Wight were...
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Opinion State Farm Fire and Casualty Company, State Farm Mutual Automobile Insurance Company and Karen Parker (referred to collectively henceforth as State Farm) are defendants below in Riverside County Superior Court case No. Indio 45204, Patten, et al. v. State Farm Fire and Casualty Company, et al. In that action, State Farm moved for summary adjudication of certain issues pertaining to its dut...
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Opinion Introduction Defendants California Health and Welfare Agency, James Stockdale, Acting Secretary of the Agency, State Department of Finance, and Kenneth Kizer, Director of the Department, appeal the issuance of a preliminary injunction by the Alameda County Superior Court, enjoining appellants “from denying Medi-Cal coverage of root canal treatments and laboratory processed cr...
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Opinion Plaintiff appeals from a judgment for defendants in an action for declaratory relief under Code of Civil Procedure section 1060. The trial court found that pursuant to Civil Code section 1654, a typewritten provision prohibiting prepayment of an all-inclusive promissory note was superseded by a printed provision limiting the borrower’s right of prepayment to the extent to which pr...
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Opinion Statement of the Case Appellant Oildale Mutual Water Company (Oildale) filed a complaint against respondent North of the River Municipal Water District (District) and the individual members of District’s board of directors alleging that District was overcharging Oildale for the water that District was providing under a water service agreement. The complaint further sought a declaratio...
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Opinion In this case we consider whether the eviction service provided by Landlords Professional Services (LPS) involved the unauthorized practice of law. I Facts and Procedural History In 1982 the Orange County Apartment News carried an advertisement for the eviction services provided by LPS. The ad stated “Evictions as low as $65” and showed the picture of a purposeful an...
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*22 Opinion No flippancy is intended, but all are familiar with the old adage of “going to the well too often.” This is a case where plaintiff and appellant, Richard S. McClain (McClain or vendee) did not “go to the well often enough” before purchasing the real property here involved. Had he done so he may have timely discovered the well on the property produced water too “hard” to be potable...
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Opinion Statement of the Case Appellant was convicted on 3 counts of sodomy with a child under 14 years old (Pen. Code, § 286, subd. (c)) 1 and 3 counts of oral copulation with a child under 14 years old (§ 288a, subd. (c)). The jury also found true as to each count the special allegation that appellant was a person who occupied a position of special trust and committed an act of substantia...
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Opinion The issues presented by this appeal are whether counsel’s failure to advise respondent of his right to request a recommendation against deportation (RAD) from the sentencing court pursuant to 8 United States Code section 1251(b)(2), where defendant was subject to deportation as a result of his conviction, rendered counsel’s assistance constitutionally ineffective. And, if counsel ...
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Opinion The appeal here is from a summary judgment, entered in favor of Allstate Insurance Company (Allstate) and its claim adjuster Susan Rossel (Rossel) in a first party action brought by Allstate’s insured Charles C. Twaite (plaintiff). Plaintiff’s complaint charged Allstate with common law, bad faith breach of contract, with breach of duties arising under section 790 et seq. of the In...
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Opinion Appellants Thomas J. and Josephine Porreco appeal from the dismissal of their superior court action under Code of Civil Procedure sections 583.310 and 583.360 for failure to bring the case to trial within five *117 years after the filing of the complaint. Appellants contend that the parties’ stipulation to submit the case to arbitration precluded dismissal. State...
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*210Opinion Paul Demetrius Allen appeals from judgment of conviction entered after a jury found him guilty of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and robbery (Pen. Code, § 211). He also petitions for writ of habeas corpus, asserting inadequate assistance of trial counsel. We affirm the conviction and deny the writ petition. Facts At 3:30 a.m. on September 25, 1985, Roscoe Willi...
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216 Cal.App.3d 156 (1989) 264 Cal. Rptr. 623 In re WANOMI P., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN'S SERVICES, Plaintiff and Appellant, v. MARY P. et al., Defendants and Respondents; DONALD JAMES GEISLER et al., Interveners and Appellants. Docket No. B036785. Court of Appeals of California, Second District, Division One. November 30, 1989. *159 C...
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Opinion Introduction This case involves the custody of a minor born in California to a mother who is a member of a Canadian Indian tribe. It calls upon us to determine whether the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) requires the California courts to transfer jurisdiction over the minor to the Canadian Indian tribe. Facts On September 10, 1987, the Los Angeles County Department of ...
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Opinion Appellants Charles Ronald Roberson and Claudia Lenore Snyder sued respondents Evangelical Orthodox Church and several named and unnamed defendants on a plethora of intentional tort claims based primarily on respondents’ conduct in publicly revealing details of appellants’ confidential communications to members of the congregation and the public. On appeal, appellants argue the tri...
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Opinion Donna B. Ellis appeals from the trial court’s order imposing respondent State Compensation Insurance Fund’s (State Fund) lien upon *314 the settlement between Ellis and Wells Manufacturing, Inc. (Wells). She contends that the court erred in imposing the lien because the Witt v. Jackson issue was not decided. We agree and reverse. Facts and P...
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Opinion A jury convicted Jose Luis Garcia of burglary of an inhabited dwelling (Pen. Code, §§ 459 & 460). 1 The court then found Garcia had a prior serious felony conviction (burglary of an inhabited dwelling) (§§ 667, subd. (a), 2 1192.7, subd. (c)(18)) 3 and sentenced him to prison for a six-year term for the burglary conviction and a consecutive five-ye...
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216 Cal.App.3d 319 (1989) 264 Cal. Rptr. 666 In re A.M., a Minor. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. J.M., Defendant and Appellant. Docket No. A042237. Court of Appeals of California, First District, Division Two. December 1, 1989. *320 COUNSEL Ann L. Lipson for Defendant and Appellant. Richard J. Moore, County Counsel, and Anthony E. Scarr, Deputy County Counsel,...
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Opinion J. M. appeals from a judgment freeing her daughter A. M. from her custody and control pursuant to Civil Code section 232, subdivisions (a)(1) (abandonment) and (a)(7) (child in supervised out-of-home placement for one-year period).1 We conclude that the notice of appeal was not timely filed and consequently dismiss the appeal. Procedural Background On March 18, 1987, respondent filed its...
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216 Cal.App.3d 340 (1989) 264 Cal. Rptr. 673 PATRICIA PIERSON, Plaintiff and Appellant, v. SHARP MEMORIAL HOSPITAL, INC., Defendant and Respondent. Docket No. D008093. Court of Appeals of California, Fourth District, Division One. December 1, 1989. *341 COUNSEL Gattis & Cote, Richard E. Gattis, Steven J. Cote and Timothy A. Kuncz for Plaintiff and Appellant. *342 McInnis, Fitzgerald, Rees, Sh...
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Opinion Plaintiff Patricia Pierson appeals from a judgment favoring defendant Sharp Memorial Hospital, Inc. (Sharp), after the court granted Sharp’s motion to strike Pierson’s claim for strict liability. Pierson contends the court erred in not extending the doctrine of strict liability to injuries resulting from latent defects in hospital premises. We affirm. I Superior Court Proceedings In April...
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*381 Opinion Robin G. Williams petitions this court for a writ of mandate to overturn an order of the superior court transferring his action for wrongful termination to the municipal court. That order was issued by a judge who conducted settlement proceedings following arbitration and concluded based on his analysis of the pleadings and the history of the action that the contract cause of act...
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*1088Opinion This is a proceeding to review the State Bar’s denial of Richard Hippard’s petition for reinstatement to the practice of law. We hold that petitioner’s discharge in bankruptcy of indebtedness to clients arising from misconduct did not preclude the State Bar from considering, as an indicator of rehabilitation, petitioner’s efforts, if any, to make restitution; that petitioner did not ...
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Opinion This is an action for libel and slander brought by appellant Claude Fletcher, a former San Jose City councilman, against respondents San Jose Mercury News, Knight-Ridder Publications and Mercury News reporter Scott Herhold. The libel claim arose after the Mercury News published a series of articles reporting on Fletcher’s conduct as a member of the board of economic and socia...
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Opinion Appellants and cross-complainants, Cal-Jones Properties and Ralph Gomez, appeal from a judgment of dismissal 1 of their cross-complaint for breach of fiduciary duty. 2 The trial court ruled that their claim was in fact an indemnity claim and therefore barred due to cross-defendants and respondents Evans Pacific Corporation and Bernice McClellan’s good faith s...
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Opinion This appeal by King Cavalier (Cavalier), Lehman Brothers Kuhn Loeb, Inc. (Lehman Brothers), together with Shearson Lehman/American Express, Inc., and Shearson Lehman Brothers, Inc., the successor corporations to Lehman Brothers, is from a judgment entered on a jury verdict finding that appellants had breached their fiduciary duties to respondents Elmore Duffy (Duffy), Frank Ghilar...
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Opinion This is an appeal from an order of dismissal after defendant’s motion for summary judgment was granted. On April 9, 1985, plaintiff William Nathan Brooks, a minor, by and through his guardian ad litem, Elizabeth Brooks, filed a complaint alleging causes of action for personal injury caused by motor vehicle, premises liability, general negligence and products liability. P...
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Opinion Defendant Richard Gragg (Gragg) was charged with attempted murder in two counts of a three-count information, originally with three other codefendants who were Sociz John Junatanov (Johnny); Georgeanna Vieweg (Vieweg); and Asror Junatanov (Oscar). Gragg was convicted in count I (the restaurant incident) of the lesser included offense of attempted voluntary manslaughter. Gragg was acquit...
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Opinion A jury convicted Eucario Castrejon Cordero of first degree murder and found a firearm-use allegation to be true. Cordero con *278 tends the trial court committed error by not instructing on unreasonable self-defense and failing to clarify part of the first degree murder instruction. We agree with the latter contention, but find the error was harmless. I The ...
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*398 Opinion Introduction and Procedural History This action was commenced by plaintiff and respondent Continental Airlines, Inc. (Continental), in the Los Angeles Superior Court on December 3, 1979, and alleged, against defendant and appellant McDonnell Douglas Corporation (Douglas), causes of action for negligence, strict liability, deceit, breach of warranty and breach of...
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Opinion In this proceeding, petitioner David D. Schmitt, Jr., challenges the denial of his motion to specially set his dental malpractice action against real party Singhal for trial before expiration of the five-year period set forth in Code of Civil Procedure section 583.310.* 1 Under the facts of this case, we conclude the denial of petitioner’s motion was an abuse of discretion and will grant ...
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Opinion Plaintiff appeals from a summary judgment in favor of defendants in an action for wrongful constructive discharge. 1 We conclude *664 that subsequent California Supreme Court decisions compel dismissal of plaintiff’s discharge-related tort claims regardless of whether summary judgment was warranted at the time of the trial court’s ruling (Foley v...
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OPINION We publish our opinion in this case because we believe it involves a legal issue of continuing public interest, that is, the unnecessary burden placed on California taxpayers and on an already overburdened Attorney General's office and Court of Appeal by meritless and even frivolous criminal appeals. Without sacrificing fairness or the rights of defendants, we owe the public an efficient a...
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Opinion Defendants appeal from a judgment after verdict based upon their written guaranties of debt obligations to plaintiff. The sole issue raised by this appeal is whether the plaintiff’s cause of action for breach of contract was barred by the applicable statute of limitations such that a directed verdict should have been entered for defendants. We conclude that defendants signed a val...
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49 Cal. 3d 1107 (1989) 783 P.2d 184 264 Cal. Rptr. 825 GERALD LEE WALKER, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent. Docket No. S007224. Supreme Court of California. December 18, 1989. *1110 COUNSEL Gerald Lee Walker, in pro. per., and L. Steven Goldblatt for Petitioner. Diane C. Yu, Truitt A. Richey, Jr., and Richard J. Zanassi for Respondent. OPINION THE COURT. We review the recomm...
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*1125Opinion We review the recommendation of the Review Department of the State Bar Court that petitioner Paulino Almando Aquino be disbarred. The recommendation stems from petitioner’s conviction on multiple counts of violating federal immigration and naturalization laws by engaging in a fraudulent scheme to aid citizens of the Philippines to obtain permanent resident status in the United States...
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*1215Opinion We granted review in this case to determine whether CALJIC No. 8.11 (1983 rev.) (4th ed. pocket pt.), the standardized instruction defining implied malice, adequately informs the jury that implied malice requires a finding of the defendant’s subjective awareness or appreciation of the life-threatening risk created by his conduct. For the reasons set forth hereafter, we conclude that i...
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49 Cal.3d 1170 (1989) 783 P.2d 211 264 Cal. Rptr. 852 THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ANTHONY JACKSON, Defendant and Appellant. Docket No. S004615. Crim. No. 23750. Supreme Court of California. December 18, 1989. *1180 COUNSEL Gerald H. Gottlieb, under appointment by the Supreme Court, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve White and Richard B. ...
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Opinion In this malicious prosecution action we are called upon to resolve the clash between the claimed right to enjoin a trade libel and the constitutional right of free speech. The case had its genesis in an earlier but unsuccessful attempt to obtain an injunction against the publication of a report concerning the safety of plastic pipes for domestic water use. The published report was...
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Opinion Following plaintiffs’ purchase of real property in San Jose, the Assessor of Santa Clara County revalued the property for tax purposes in an amount substantially higher than the purchase price. After the assessment appeals board denied plaintiffs’ application for changed assessment, plaintiffs filed this action to nullify the board’s decision. The superior court set aside the boar...
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*1006 Opinion The City Council of the City of Palm Springs, together with the City of Palm Springs (collectively referred to as City), has appealed from a judgment directing that a writ of mandate issue to compel City to vacate and set aside the second amended participation agreement (the Second Agreement) between City and Wessman Development Company (the developer). Such judgment declared th...
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*598 Opinion I. Frank Edward Brown appeals from the judgment of conviction after a jury found him guilty of vehicular manslaughter (Pen. Code, § 192, subd. (c)(1)), and of causing injury or death while attempting to elude police pursuit (former Veh. Code, § 2800.2 [now § 2800.3]). 1 He claims that the trial court erroneously denied his Wheeler 2 motion,...
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