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All Reporters → cal-rptr → Volume 27
Opinions in cal-rptr Volume 27
Petitioners (Harry, Richard and Donald Auslen) allege that respondents (the Superior Court of the City and County of San Francisco, the Superior Court of Sacramento County, and Judges Arnold and Henry of those courts) are simultaneously asserting jurisdiction over the same
inter vivos
trust. Petitioners seek a writ of prohibition restraining one or the other of respondent courts from...
Views: 0
Doneral Patterson, a minor aged 17, appeals from a judgment of the Superior Court of Sacramento County sitting as a juvenile court, declaring him a ward thereof and committing him to the care and custody of the Youth Authority.
Facts: The minor was charged with entering a residence “with the intent to commit the crime of theft, thereby violating Section 459 of the Penal Code of California.”
He was...
Views: 0
Plaintiffs were granted a writ of prohibition by an order of the Superior Court of the City and County of San Francisco, restraining the municipal court from trying them for a violation of the municipal code. The appeal is from this order. *909 Facts: Plaintiffs were charged with a violation of section 741 of chapter 8 (Police Code) of the San Francisco Municipal Code, which provides, in pa...
Views: 22
We apply to the resolution of the complex matter of this ease relatively simple rules. We undertake a lengthy examination of the history, as well as the content, of the attacked regulation of the Director of the Department of Employment to show that he did not violate the precept that he must not act arbitrarily, capriciously or without evidentiary support. We explain, too, why the director proper...
Views: 26
In an information filed by the district attorney of Los Angeles County, defendant was charged with violation of section 470 of the Penal Code, forgery. An amendment to the information was filed charging three prior felony convictions. Defendant entered a plea of not guilty to the offense charged and denied the prior convictions. Trial was by the court, trial by jury having been duly waived by def...
Views: 8
This is an appeal based upon two separate notices of appeal by the decedent’s surviving husband, A. V. Falcone, from certain portions of the judgment, order and decree of final distribution. In summary, appellant asserts that respondents’ petition to determine heirship did not state facts sufficient for such determination; that respondents did not prove they were pretermitted heirs or that there ...
Views: 13
Page 47
This is an appeal from an order awarding plaintiff alimony pendente lite in connection with plaintiff’s action to establish two foreign alimony judgments in California.
The chronology of events is as follows:
On February 23,1962, plaintiff filed a complaint to establish foreign judgment for alimony and attorneys’ fees and for attorneys’ fees and costs herein. In the first cause of act...
Views: 3
This is an appeal by defendants, Charles M. Garrett, Jr. and Lowell R. Smith, from a judgment in favor of plaintiff for damages for breach of contract of sale of land.
Facts
On August 7, 1959, defendants as owners, agreed in writing to sell certain described land to plaintiff for the sum of $80,000, $2,000 of which was then in the hands of the broker and was deposited with the title c...
Views: 6
Rosendahl Corporation, hereafter referred to as plaintiff, brought this action against the H. K. Ferguson Company, a corporation, hereafter referred to as defendant, and obtained a judgment based upon a written indemnity agreement. Defendant appeals.
In 1954 the defendant was engaged as a general contractor in the construction of a building in Richmond. The job involved the excavation of a...
Views: 3
Defendant was convicted of the fraudulent possession of blank; or unfinished cheeks in violation of section 475, Penal Code. 1 He has appealed. Defendant was represented in the trial court by the Public Defender. Defendant filed his notice of appeal in propria persona. He later filed application for appointment of counsel to represent him on appeal. We then examined the record and determined ...
Views: 9
This is an appeal by the Department of Alcoholic Beverage Control (hereinafter referred to as “Department”) and the Alcoholic Beverage Control Appeals Board (hereinafter referred to as “Board”) from a judgment granting respondent a peremptory writ of mandate.
The chronology of events is as follows:
On November 6, 1957, an accusation under the Alcoholic Beverage Control Act and State C...
Views: 6
Defendant appeals from a judgment for specific performance of a written agreement, wherein defendant agreed to sell and plaintiffs agreed to buy an apartment building and the furniture therein, located at 2953-55-57 Jackson Street, San Francisco, for the sum of $35,000. The *121 agreement was signed by the buyers and the seller on January 23 and 24, 1957. The sale not having been consummated,...
Views: 1
Globe Indemnity Company appeals from a judgment in favor of Mercantile Acceptance Company in an action to recover on a statutory bond issued by Globe to W. C. Jones, doing business as W. C. Jones Auto Sales. The action went to trial on two different causes of action, each based on fraud, against Globe alone as the default of Jones had been entered previously. Before discussing the contentions...
Views: 3
Plaintiff brought an action to set aside the purchase of a business on the ground of fraud. Defendants denied the fraud and cross-complained for the balance due on the purchase price which was represented by a promissory note. The trial court, sitting without a jury, gave judgment for defendants and cross-complainants, finding that the alleged misrepresentations of fact had not been shown to have...
Views: 2
Plaintiff Sabraw, a contractor, agreed to construct a building for defendant, which was to be used as a retail drugstore, and there is evidence that plaintiff knew of the intended use. The building was to have been completed, according to the agreement, by April 14, 1958, but it was not finished until August 21, 1958, and although the subject of fault was contested in the trial court, it is conce...
Views: 0
This appeal is taken from the order of the trial court denying appellants’ motion to vacate and set aside a judgment entered against them pursuant to a written stipulation. The record before us reveals that the action was commenced on December 5, 1960, when respondents herein filed their complaint seeking recovery of monies due upon a promissory note. Appellants filed a demurrer on December 19, 19...
Views: 0
Claremont Management Company, Inc., hereinafter referred to as the defendant, built a house which was purchased by M. B. McNeely and Frances J. McNeely, his wife, hereafter referred to as plaintiffs. The defendant gave plaintiffs a written warranty to the effect that the house had been constructed in substantial conformity with plans and specifications approved by the Federal Housing Commission...
Views: 5
The Modesto Irrigation District has appealed from a judgment in declaratory relief holding valid a City of Modesto ordinance regulating the location of overhead utilities and denying an injunction to permanently enjoin the city from enforcing said ordinance.
District, plaintiff and appellant herein, is engaged in the business of transmitting, distributing and selling electric power pursuan...
Views: 11
211 Cal.App.2d 23 (1962)
Estate of EUNICE L. McCARTY, Deceased. JULIUS LUOMA, Plaintiff and Respondent,
v.
THE FIRST CHURCH OF CHRIST, SCIENTIST, BOSTON, MASSACHUSETTS, Defendant and Appellant; LAWRENCE DOYLE et al., Proponents and Respondents.
Civ. No. 20493.
California Court of Appeals. First Dist., Div. Two.
Dec. 18, 1962.
Lillick, Geary, Wheat, Adams & Charles and Robert R. Vayssie fo...
Views: 2
This is an appeal from a judgment admitting to probate a formal will and denying probate of a holographic codicil. Appellant, The First Church of Christ, Scientist, in Boston, Massachusetts, is the residual legatee named in the codicil to the will of Eunice L. McCarty. Respondent Julius Luoma, the testatrix’ brother, is devised $10,000 under the will, but only $1.00 under the codicil. The testatri...
Views: 0
Page 100
Appeal by defendant from judgment of conviction after plea of guilty. Although afforded ample opportunity to do so, appellant has not filed any brief or statement of grounds of appeal. Nevertheless, this court has diligently reviewed the record and from such review finds no error and no grounds of appeal. Judgment affirmed. Bray, P. J., and Sullivan, J., concurred....
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Page 100
Appeal by defendant from judgment of conviction after plea of guilty. Although afforded ample opportunity to do so, appellant has not filed any brief or statement of grounds of appeal. Nevertheless this court has carefully reviewed the record and from such review finds no error and no grounds of appeal. Judgment affirmed. Bray, P. J., and Molinari, J., concurred....
Views: 0
Plaintiff appeals from an adverse judgment in a nonjury trial, in an action for alleged malpractice by defendants.
Questions Presented
1. Sufficiency of findings and evidence to support them.
2. Was plaintiff’s examination of defendant Wood improperly restricted"?
Evidence
: Plaintiff is the widow of Clarence Lindner who died in January, 1952. Defendants are certified p...
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Page 106
This is an appeal from an order refusing to set aside a default entered against appellant Daniel Hay.
Facts
On April 8, 1959, plaintiff and respondent Arta Kessler was injured while passing through the doorway of a Thriftimart store. On April 7, 1960, she sued Thriftimart, Inc., Wagner Construction Company (which is alleged to have built the building) and Daniel Hay (who is alleged to...
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Page 110
Plaintiffs appeal from a judgment of dismissal entered after the sustaining without leave to amend of a demurrer to their second amended complaint.
The genesis of the present dispute is found among certain competing claims to a portion of the remainder of a trust created under the terms of the will of one Anne McNally Liddle. According to such will which was admitted to probate, the testat...
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At the trial it was determined that plaintiff was not covered for major medical payments by a policy of insurance issued by the defendant. The superior court held that the insurance did not apply to the plaintiff, because at the time of her injury she was occupying an automobile of her husband not included in the definition of “owned automobile” contained in the policy. The plaintiff alleges in...
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Page 129
On January 6, 1961, Officer Westbrook and his partner, Officer Kellough, were advised by detectives at the University Station that a warrant was outstanding for the arrest of one Lynda Ashley upon a charge of forgery. The named officers were advised also that the wanted party resided at 4194 Garthwaite, Los Angeles, but that when other officers had called at said address a few days earlier and id...
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Page 132
Dennis Leroy Moulton and his brother, Larry, were found guilty by a jury of two counts of burglary in the second degree. Dennis alone appeals and contends that the trial court erred in the introduction of certain evidence and that the district attorney committed prejudicial misconduct. There is no merit in either of these contentions. Viewing the evidence in the light most favorable to the Peop...
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Defendant county and its officers appeal from decree enjoining enforcement of those provisions of a comprehensive zoning ordinance which prohibit construction and maintenance of billboards in certain districts.
The ordinance was adopted April 18, 1955. It distinguishes between “appurtenant” signs, those which “relate only to goods sold or services rendered upon the building site on
...
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Plaintiff appeals from a judgment holding valid the marriage of the parties. Question Presented Does the absence of witnesses invalidate a Nevada marriage ? Record Plaintiff filed an action in declaratory relief to determine the validity of her Nevada marriage. Defendant defaulted. The trial court declared the marriage valid. Plaintiff appealed. No appearance has been made on behalf of de...
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Page 142
Defendant appeals from a judgment in favor of plaintiffs based upon an unsecured note for $9,000, executed by defendant to plaintiffs. The sole issue is whether the trial court erred in refusing to permit evidence of lack of consideration. An offer of proof was made by defendant and denied by the trial court. For the purpose of this appeal only we are assuming that such proof could be made. The...
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Page 144
Defendant, Harry H. Hawkins, appeals in propria persona from a judgment of conviction entered on a jury verdict finding him guilty of the possession of marijuana, in violation of section 11530 of the Health and Safety Code, and the sale of marijuana, in violation of section 11531 of the Health and Safety Code. While defendant does not challenge the sufficiency of the evidence to sustain the verdi...
Views: 10
Page 146
Plaintiff, as administratrix of the estate of Alfred Simoni, deceased, brought this action for a dissolution and an accounting of a partnership between her deceased husband and his brother. Plaintiff recovered a judgment in the sum of $4,500 against defendant, Laz Simoni, who has appealed. The Simoni brothers entered into a written partnership agreement dated January 1, 1949, by which they agre...
Views: 5
Petitioner Maria Howell filed this petition for writ of prohibition to restrain further proceedings in a divorce action now pending in respondent court. The basis for the petition is the contention that the superior court has no jurisdiction to proceed because of a prior pending action between the same parties involving the same cause before the Superior Court of Los Angeles County. Two actions...
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Page 151
Charged with robbery (Pen. Code, § 211), defendant pleaded not guilty but admitted three prior convictions. He was represented by the public defender in a jury trial. Pound guilty of robbery in the second degree, he was sentenced to prison and appeals. We appointed counsel for him. That attorney had the record augmented, reviewed it, advised us that after detailed study he found no meritorious gro...
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The basic action is one by the state against Taliaferro for recovery of rents allegedly collected by him upon land deeded to the state for default in payment of taxes. Among other cross-complaints, defendant filed two against his former wife, now Dorothy Davis, and her attorney. These were stricken upon motion, and defendant appeals. A cross-complaint is permitted only when it seeks relief “rel...
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Applying the liberality of construction which we believe to be appropriate to discovery procedures,
*889
we hold here that plaintiff has sufficiently shown ‘ ‘ good cause ’ ’ to entitle him to an order pursuant to Code of Civil Procedure section 2019, subdivision (a) (3) to take the deposition of an unserved defendant and certain witnesses. On the other hand, for reasons hereinafte...
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Page 160
Plaintiff, a real estate broker, brought this action to recover a commission which he alleges is due him under the terms of an agreement for the sale of a motel owned by defendants husband and wife. The trial court, sitting without a jury, found in favor of defendants. Plaintiff appeals, contending that the agreement was erroneously interpreted by the court on the basis of parol evidence. The c...
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Consolidated appeals are taken by Frederick Elmer Graham, plaintiff in intervention, from that portion of a judgment to the effect that he failed to legitimate his two minor children, the subject of the instant adoption proceedings, and by Joseph and Ruth Monis, husband and wife, from that portion of the judgment dismissing their petition for the adoption of the said minors. The facts are not i...
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Page 168
A petition for a writ of habeas corpus was filed in this court on behalf of Betty Loeb Allen, who was arrested and charged with a violation of section 22 of article 2 of Los Angeles County Gambling Ordinance No. 461. The section provides: “A person shall not knowingly permit any game prohibited by this ordinance to be played, conducted, or dealt, in any house or other premises, owned by, rented by...
Views: 65
We point out here why we have concluded that the provisions of an airplane trip insurance policy on the life of the beneficiary’s husband did not plainly or clearly provide for noncoverage, and why, in the absence of such provision, in this unusual case, the insurer is liable. Accordingly, we do not believe that the judgment for the insurer, rendered after trial without a jury, should stand.
On Ma...
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Defendant husband appeals from an interlocutory judgment of divorce granted to the wife upon the *694 ground of extreme cruelty. Appellant’s counsel raises four points, viz., (1) that the property settlement agreement, was infected with fraud and undue influence and should have been disapproved by the court, (2) that the court erroneously added to: the terms of the property agreement, (3) insuf...
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Page 189
Defendant Nash and one Phillips were accused of robbery. Trial by jury was waived. They were adjudged guilty. Nash appeals from the judgment. Appellant contends that he was not identified as one of the robbers; that he and his eodefendant were forced to make statements of admission and confession; and that this court erred in not appointing counsel to represent him. Mr. Ledelman, owner of a grocer...
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—This is an appeal by plaintiff from a judgment of nonsuit. On an earlier appeal it was decided that the second amended complaint stated sufficient facts to constitute a cause of action. (Ramey v. General Petroleum Corp., 173 Cal.App.2d 386 [343 P.2d 787].) This time the question is whether plaintiff made out a prima facie ease against either defendant.
Before the trial the defendant General Petro...
Views: 5
Defendants appeal from an adverse judgment in an action upon a contingent contract for legal services rendered by plaintiff’s assignor, which is a law firm. Defendants were husband and wife. The defendant wife died on July 1, 1958, and her husband was thereafter appointed administrator of her estate. For the purpose of clarity, the husband will be referred to herein as the appellant and the law...
Views: 1
Plaintiffs appeal from a summary judgment rendered in favor of respondents in a suit for declaratory relief. Plaintiffs had sought a declaration by the trial court that the respondents were obligated to retransfer a liquor license to the plaintiffs for a sum agreed upon in a written lease, a copy of which was attached to the complaint. The sole defense, and the basis of the summary judgment, wa...
Views: 1
Plaintiff appeals from a judgment denying him relief on his complaint and cross-complaint and granting defendant $1,881.78 on its cross-complaint.
Questions Presented
1. Was there a cancellation of the contract by plaintiff prior to the bringing of this action; (a) did plaintiff have the right to cancel; (b) did he actually cancel
1
2. Damages.
3. Should a permanent ...
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A jury found defendant guilty of petit theft with a prior petit theft conviction in violation of section 666, Penal Code. On appeal from the judgment of conviction he raises two issues—the lower court erred in denying his motion to dismiss under section 1382, Penal Code; and the deputy district attorney made improper and prejudicial remarks in his closing argument to the jury. He does not questio...
Views: 2
Page 229
In this divorce case the trial court granted a divorce decree to each of the parties on the ground of extreme cruelty. Plaintiff has appealed. She challenges particularly: (1) certain aspects of the property award; (2) the provisions for her support and that of the minor child; and (3) certain of the court’s findings. The court awarded plaintiff: (a) the family home valued at $25,000; (b) the f...
Views: 7
Page 235
211 Cal.App.2d 359 (1962)
Estate of ELIZABETH CLOGG SWALLOW, Deceased. ELIZABETH K. METCALF, Claimant and Appellant,
v.
DORIS E. KILLIAN, as Executrix, etc., et al., Claimants and Respondents.
Civ. No. 163.
California Court of Appeals. Fifth Dist.
Dec. 26, 1962.
Sherman Rogers and J. R. Goodbody for Claimant and Appellant.
No appearance for Claimant and Respondent Killian.
Burford, Hubler &...
Views: 2
Appellant appeals from a judgment entered in an heirship proceeding brought to construe the language in the holographic will of the testatrix. The testatrix, who died on April 17, 1960, left a holographic will dated January 10, 1942, and the pertinent parts involved in this appeal are as follows: “I direct that my daughter Doris E. Killian be given my home (separate property) at 715 North “E” Stre...
Views: 0
Page 239
Plaintiff (husband) brought this action for declaratory relief seeking an adjudication of the rights of the parties in certain Oklahoma properties; the defendant filed a cross-complaint to quiet title to the same properties.
*551
Plaintiff, Calvin L. Tinney, and defendant, Juanita Tinney, were married in Arkansas on December 31, 1953. On the day before—December 30—the parties exec...
Views: 8
This is an appeal by defendants from a judgment for plaintiffs in an action for damages and injunction on account of alleged unfair use of business secrets.
Pacts
Plaintiff Marvin Bledsoe is the sole stockholder in the corporate plaintiff. He is a licensed real estate broker. Defendant John M. Rooney is the salaried president of the corporate defendant, which has three directors, hims...
Views: 3
Page 255
Defendant was accused, in two counts, of forgery. He admitted allegations of the information that he had been convicted four times on felony charges (larceny of auto, Missouri; assault with intent to commit robbery, Missouri; issuing check without sufficient funds, California; forgery, California). In a trial by jury he was convicted on both counts. He appeals from the judgment and the order denyi...
Views: 0
This is an appeal from a judgment in favor of the plaintiff in an action to recover for personal injuries brought pursuant to the provisions of the Federal Employers *282 Liability Act. (45 U.S.C.A. § 51 et seq.) The principal contention is that the evidence was insufficient to justify the jury’s determination that the plaintiff had suffered damages in the amount of $21,600. An adverse ruling w...
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Page 264
Defendant-appellant Harvey Shannon, with his codefendant Joe William Sawaya, was convicted by a jury on a charge of grand theft, in that they took a tube caddy carrying about 500 tubes and other paraphernalia estimated to cost from $1,500 to $3,000, from a television company. Motions for new trial were denied and defendants were sentenced to prison. Each appealed from the judgment and order denyi...
Views: 0
Page 269
This is an action for declaratory relief. Plaintiffs, assignees of a sublessee, seek' to establish their right to recover prepaid rent against the sublessor and the sublessor’s assignee. The matter was tried by the judge alone upon a stipulation of facts and documentary exhibits. Judgment was in favor of plaintiff against defendant sub-lessor but in favor of the sublessor’s assignees.
The ...
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Page 274
Defendant, Ervin Leon Ball, was convicted after jury trial of four charges of forgery committed on September 2, 12, 16 and October 3, 1961, respectively. He denied four prior felony convictions—charges of said convictions being erroneously worded, “Ervin Leon Ball, under the name of Cyril Hugh Pipkin, Jr.” The sentences on the four counts were ordered to run concurrently. Defendant was found not ...
Views: 7
This is an appeal from a judgment awarding plaintiffs compensatory damages arising out of fraudulent representations by the defendant with reference to the purchase of a parcel of real property. A résumé of some of the facts is as follows: the defendant and/or his wife had owned the property in question for about eight years, Defendant was a licensed real *247 estate salesman or broker from...
Views: 2
The plaintiff, Security First National Bank, a national banking corporation, appeals from a judgment of the superior court in favor of the defendant. The plaintiff filed an action for the recovery of a Model LU-2 Boxmaster, commonly called a box-making or nailing machine of the alleged value of $2,200 to which it claimed title by reason of a sale under a chattel mortgage which it had held on th...
Views: 3
Page 287
The chronology of events in the court below begins with defendants plea of guilty to a charge of bigamy. Thereafter, on March 1,1957, the court suspended proceedings and placed him on probation. For his subsequent desertion, probation was revoked and a bench warrant issued on June 24, 1957; on August 2,1957, he appeared in court with counsel. A lengthy supplemental probation report recommending p...
Views: 4
Page 290
An information was filed by the District Attorney of Los Angeles County charging defendant and codefendant, Gene Evans, with violation of section 211 of the Penal Code, robbery. The information further alleged that defendants were armed with a deadly weapon at the time of the commission of the robbery. Defendants entered pleas of not guilty. The jury spent three days in deliberation before return...
Views: 9
Cross-appeals have been filed. The State Controller appeals from the judgment granting a writ of mandate to Mae Hull Jorgensen, widow of Judge Henry G. Jorgensen, directing said Controller to pay her the allowances provided by the Judges' Retirement Law as amended in 1959. Mrs. Jorgensen appeals from that part of the judgment which denies her interest. *295 Henry Jorgensen died on April 17, 1...
Views: 9
The cross-appeals involved here are (1) by the State Controller from a judgment of the Superior Court of Sacramento County, granting petitioner Lucy McWilliams a writ of mandate, directing said Controller to pay her the allowances provided by the Judges’ Retirement Law (Gov. Code, § 75104.4) as amended in 1959 (Stats. 1959, ch. 2105, p. 4874, § 1) ; (2) by petitioner from that part of the judgment...
Views: 0
Page 304
This is an appeal by defendant from a judgment of conviction of burglary, first degree, and grand theft, and an attempted appeal from an order denying defendant ’s motion for a new trial. Facts No challenge is made to the sufficiency of the evidence. Defendant did not take the witness stand nor present any evidence in his own behalf. It is therefore unnecessary to give a detailed account of t...
Views: 11
Page 307
The issues on this appeal concern the decision of the trial court respecting the community or separate character of property owned by a husband and wife at the time of their divorce.
The plaintiff, who is the respondent herein, and the defendant, who is the appellant herein, were husband and wife; married on September 1, 1950; had a son and a daughter; separated on June 6, 1958; and respec...
Views: 9
Henry Griffith and his wife, Velma L. Griffith, appeal from an adverse judgment in an action to recover on a note executed by Robert D. Barlich and his wife, Lonnie Barlich. The evidence discloses that in August 1955 Robert Barlich and the Griffiths agreed to purchase as partners a hardware *290business. The Griffiths contributed $11,400 and Barlich $3,600 which he borrowed toward the purchase of ...
Views: 0
Plaintiff sued a rival candidate for Congress for alleged injury to his reputation assertedly caused by the publication of a campaign pamphlet misrepresenting his political views. General demurrer to the first amended complaint was sustained without leave to amend; plaintiff appeals from the judgment entered on the order.
The complaint in libel alleges that prior to the 1960 election defen...
Views: 10
Actions for conversion of certain motion picture equipment, sound equipment, recording apparatus and
*395
processed film footage, which plaintiff claimed to belong to him and to have been taken from his Malibu Beach studio-residence by Bekins Van and Storage as agent of Southwest Bank and without his consent. Recovery was sought against the bank in the sum of $1,400,532, plus inter...
Views: 0
By his complaint, plaintiff originally sought foreclosure of a mortgage on designated real property as well as a deficiency judgment, following sale, for any indebtedness on the promissory note secured by the encumbrance. The note having provided therefor, the court was also asked to award reasonable attorney’s fees. The answer interposed the affirmative defense of usury; various offsets, by way ...
Views: 6
Defendant appeals from a judgment rendered in favor of plaintiff by the trial court sitting without a jury in an action to recover a real estate broker’s commission.
Viewing the evidence in the light most favorable to supporting the trial court’s determination a résumé of the facts is as follows: Rose Joelson, an authorized real estate saleslady employed by plaintiff, an authorized real es...
Views: 2
Petitioner Waco-Porter Corporation, an Illinois corporation, seeks a writ of mandate to compel the Superior Court of Tuolumne County to enter its order quashing service of summons in an action brought by plaintiff M. Dale Keyser, Jr., the real party in interest. (See Code Civ. Proe., § 416.3.) The action was brought against Waco-Porter to recover damages for personal injuries suffered by plaint...
Views: 3
Page 378
The basic issue on this appeal is: did the trial court abuse its discretion in changing the custody of the 12-year-old son of the parties from the mother (plaintiff) to the father ? Defendant is an enlisted noncommissioned officer in the United States Air Force, having been in that branch of the military service for some 19 years. In 1959 he was assigned to duty overseas. He returned in June 19...
Views: 3
A petition was filed on October 19, 1962, for a writ of prohibition to restrain respondent court from proceeding with and passing upon a motion which it had taken under submission on October 16. Pursuant to rule 56(b) (Rules on Original Proceedings in Reviewing
*
this court deemed it advisable to await five days to permit the filing of opposition by respondent or real party in intere...
Views: 4
Page 388
This is an appeal by defendant from a judgment for damages in favor of plaintiff on account of the motor vehicle accidental death of plaintiff’s husband.
Facts
The essential facts follow: On April 6, 1958, plaintiff’s deceased, Leroy Wood, was employed at the Flat Top Truck and Car Terminal and service station near Fresno. Between 9 and 10 p. m., Elwood Humphries drove an Autocar truc...
Views: 1
Page 392
The three defendants, Paul Allen, Ann Allen, and Patrick Tully, werfe accused of unlawfully possessing heroin. Trial by jury was waived. Upon stipulation the cause was submitted on the transcript of the preliminary examination, with the right to present additional evidence. Defendants were adjudged guilty. Allegations of prior felony convictions of Paul Allen and Tully were found to be true (three...
Views: 0
Petition by W. P. Fuller and Company and Pacific Employer’s Insurance Company for writ of review seeking review and annulment of an award of the commission to Frank T. Cassidy. Questions Presented 1. Was there substantial evidence of an industrial injury in April 1960 ? 2. Was there substantial evidence to sustain the finding of 66 per cent permanent disability due solely to the series of i...
Views: 3
This is a companion case to W. P. Fuller & Co. v. Industrial Acc. Com., 1 Civ. No. 20769, this day decided. (See ante, p. 9 [27 Cal.Rptr. 401].)
Petitioner State Compensation Insurance Fund seeks review and annulment of that portion of the award mentioned in that case which was granted in Industrial Accident Commission Nos. 196025 and 196026, relating to the industrial injuries suffered by Frank C...
Views: 0
Page 408
This is an appeal by the People from an order granting a dismissal under the provisions of section 995, Penal Code. In an information filed in the Superior Court in Los Angeles County on October 11, 1961, the defendants above named * were charged in Count I with murdering Richard Earl McKain on or about September 15, 1961. Ulsh was also *260 charged with two prior felony convictions (burgla...
Views: 5
This is an appeal from that portion of an “Order and Decree” which directed the distribution of the rest and residue of the estate of the above-named decedent to the Regents of the University of California, a respondent herein, to be used at, on, and in the University of California at Los Angeles for educational purposes. A motion by the respondents to augment the record in certain particulars ...
Views: 8
Page 429
The defendant, James Jones, appeals from convictions of first degree burglary and first degree robbery, Count I of the information charged that the defendant and one James Hamilton, Jr., on or about February 16, 1961, did “willfully, unlawfully and feloniously enter the house and building occupied by Joseph Williams, in the City of Tulare, ... in the night time, with the intent . . . to commit th...
Views: 20
Page 436
By an information the defendant was charged with having had possession of heroin on or about May 8, 1961, in violation of section 11500 of the Health and Safety Code. It was further alleged that he had suffered two prior convictions for the violation of that section of the Health and Safety Code. In a non jury trial, he was found guilty as charged and the allegations as to the prior convictions w...
Views: 9
Appellants appeal from a judgment in favor of respondents in the amount of $3,941.12, plus interest and costs, based on a suit filed by respondents as successors in interest of Williams & Sons, Inc., a dissolved corporation. The complaint sought recovery of moneys expended by Williams & Sons, Inc. in installing a water well and pump upon land owned by the appellants. The appellants answered wit...
Views: 1
This is an appeal from a judgment denying a petition for revocation of probate of a will of decedent on *557 the ground that the contestants were not persons “interested” within the purview of section 380 of the Probate Code and that for lack of such interest they were incapacitated to maintain their contest. Contestants sought revocation of the probate of a will dated July 3,1959, on the gro...
Views: 12
This is an action for damages for wrongful removal of timber from plaintiff's land. It has a long history. In 1949, plaintiff’s predecessor in interest contracted to sell to defendant Thompson and one Edsell, timber on the predecessor’s land. In 1954, plaintiff brought an action to declare rescission of the contract for breach by Thompson and Edsell. Appellant Lewis acquired Edsell’s interest, an...
Views: 5
Page 446
Defendant was convicted of uttering and passing a forged instrument as true and genuine, in violation of section 470 of the Penal Code. The trial was had to the court sitting without a jury. The victim, one Mack Jones, an illiterate, is able to write only his signature. He must have someone prepare the checks which he signs. Defendant sold a saddle to Jonés, and observed a third party prepare t...
Views: 0
Cross-defendant Pohlman and defendant were the sole stockholders of plaintiff corporation, which is engaged in the purchase and sale of improvement act bonds. They desired to assure that neither the death nor the withdrawal of one of them would bring a stranger into the business. In 1956, they entered into an agreement covering these contingencies. If one desired to sell, he was required *467 t...
Views: 3
Page 451
This appeal is taken by defendant from a judgment entered in favor of plaintiff in a wrongful death action following a non jury trial. Findings of fact and conclusions of law were waived and no motion for a new trial was made. Appellant presents only two assignments of error for our consideration: (1) that the evidence does not support the judgment; and (2) that the judgment is excessive in amoun...
Views: 6
Respondents have moved this court to dismiss the appeal on the ground that appellants attempt to appeal from an order which is not appealable.
*308
Appellants, stockholders of Fosca Oil Co., Ltd., brought a derivative action against the corporation and certain officers and directors of the corporation, the complaint containing three alleged causes of action. Respondents’ motion fo...
Views: 6
On November 15, 1958, at approximately 3 a. m., a truck and trailer driven by plaintiffs’ agent collided *141with defendant’s freight train at a single spur track crossing in the Mojave Desert near the Township of Boron. Plaintiff Merton Mead, owner of the truck tractor, filed an action for property damage, and plaintiffs Harry and Buth Williams filed a similar action as owners of the truck traile...
Views: 0
Page 458
Code section 647 is the new disorderly conduct law, enacted in 1961, to replace the obsolete and partially unconstitutional vagrancy law (see In re Newbern, 53 Cal.2d 786 [3 Cal.Rptr. 364, 350 P.2d 116]). It provides in part: “Every person who commits any of the following acts shall be guilty of disorderly conduct, a misdemeanor: .... (e) Who loiters or wanders upon the streets or from place to pl...
Views: 15
Page 465
The defendant James G. Justice was charged in an information in three counts: In Count I with the unlawful entering of an inhabited dwelling house with intent to commit assault with a deadly weapon in violation of section 459 of the Penal Code; in Count II with the unlawful entry of an inhabited dwelling house with intent to commit assault by means of force likely to produce great bodily harm in ...
Views: 13
COUGHLIN, J.
— This is an action by a material-man against a surety on a contractor’s bond to recover the alleged unpaid portion of an indebtedness for materials furnished at the request of the contractor. The ease was heard upon a stipulation of facts, from which it appears that a contractor named Posey agreed to do certain construction work upon property owned by a corporation named C. ...
Views: 0
Page 476
General demurrer to the second amended complaint for malicious prosecution was sustained without leave to amend. Plaintiff appeals from the judgment of dismissal. *469The complaint alleges in detail that: in August 1959, plaintiff gave to defendant, his landlady, a check for $100; he told her that funds to cover the check would not be deposited for a few days; she agreed to hold the cheek for a ti...
Views: 0
This is an appeal by plaintiff from a judgment of nonsuit in an action for damages for alleged breach of contract.
Facts
The facts come to us in an engrossed settled statement. Because it is succinct and terse, we quote it:
“Plaintiff contracted to construct a public improvement for defendant consisting of Huntington Beach Channel and a portion of Talbert Channel, in the County o...
Views: 1
R. W.Borders appeals from a judgment denying his petition for a writ of mandate. He was a policeman, with civil service classification, in the police department of Beverly Hills from March to October 7, 1960. On September 29, 1960, the chief of police notified him by letter that he was discharged from such position, as of October 7, 1960, for the following causes: misconduct, failure to perform du...
Views: 0
This is a petition for a writ of mandate seeking to compel the Superior Court of Alameda County to grant a motion for change of venue to Mendocino County. The Facts The real party in interest, Fred J. Walker, hereinafter referred to as the respondent, commenced an action in Alameda County against the petitioner for the recovery of installments allegedly due on a contract for the sale of laundry ...
Views: 0
Page 501
The question here is whether the findings support or contradict the joint and several judgment entered against all defendants for publication, as well as republieation, of an assertedly libelous letter. Judgment was for $5,000 for each of the two plaintiffs, each such award including “special and general damage. ’ ’ All defendants appeal.
Vick, Dickson and Parks and their wives, all joined...
Views: 5
Page 526
Question Presented
The sole question presented on these appeals from judgments of conviction for the crime of burglary is whether there is sufficient corroborative evidence to sustain the convictions.
The Record
Three witnesses testified at the trial, to wit: Lloyd L. Murray, Sesto Luzzi and Robert W. Hayes. Additionally, the testimony of Joseph Uvdic and Charles Quacken...
Views: 19
Page 536
Plaintiff-appellant Charles Kelly Robinson brought this action on May 6, 1960, against defendants and respondents Elmer Smith and City of Barstow, a municipal corporation, alleging in count one of the complaint that on June 17, 1959, defendant Smith, a police officer, willfully and maliciously shot plaintiff in the back, causing considerable injury and damage. In the second count, it is alleged...
Views: 6
Page 543
The defendant, Donnell Cooley, known as Spade Cooley in the amusement world, was convicted by a jury of murder in the first degree for the killing of his wife, Ella Mae. Thereafter, he withdrew his additional plea of not guilty by reason of insanity and waived a jury with respect to fixing the penalty for his crime. The trial judge sentenced 'him to life imprisonment. There was no motion for a ne...
Views: 15
Page 569
This is a boundary dispute involving a line which is the north line of plaintiffs’ property, the south line of defendants’ property, which adjoins the Steeles’ on the north. The area involved in the dispute constitutes a frontage along a county road of approximately 58 feet, with a depth of 440 feet more or less. The trial court quieted the title of plaintiffs Steele, denying the claims of the ...
Views: 2
Plaintiffsued for an accounting, damages for usury arising from successive agreements to factor accounts receivable, and damages for breach of contract based on revocation of a check drawn by defendant in favor of plaintiff. The court found the first factoring agreement to be usurious but held the second free of the taint. Damages for revocation of the check were refused. Thereupon, the court str...
Views: 6
The appellant Martin I. Jacobson filed a motion to modify an order for the support of respondent, Roberta G-. Jacobson. The order was based upon a property settlement agreement previously executed by the parties. At the hearing on the motion the respondent objected to the introduction of evidence on the ground that the court had no jurisdiction because the order sought to be modified was based ...
Views: 2
The plaintiff appeals from a judgment in favor of the defendant in a personal injury action tried by a jury. The jury also returned a verdict against the defendant on his cross-complaint.
Question Presented
The sole question presented is whether the jury was guilty of misconduct which would warrant the impeachment of its verdict.
The Record
This appeal is presented u...
Views: 10
Page 586
The defendant was charged with the offense of burglary, i.e., a violation of section 459 of the Penal Code, and with the commission of a prior offense, i.e., burglary, for which he served a term of imprisonment; denied the charge of burglary but admitted the prior offense; was convicted of the former upon a verdict finding him guilty of burglary in the second degree; was sentenced to imprisonment ...
Views: 1
This is an application by S & Q Construction Company and Hartford Accident and Indemnity Company for a writ of prohibition or supersedeas to prevent enforcement of a money judgment in favor of M. D. Haynie.
S & Q was the contractor on a public construction project for the City of Stockton. Hartford was its surety on a bond furnished in accordance with the provisions of section 4200 et seq. of the ...
Views: 0
Plaintiff obtained a deficiency judgment against the defendant arising out of the sale of a BU 135 Skagit, a large piece of logging equipment. The conditional sales contract of the parties was entered into in April of 1957. Defendant was unable to make any substantial use of the Skagit and in 1958 he parked it in the woods, built a cover for it, and removed the starting motor. Defendant paid on...
Views: 2
Page 593
59 Cal.2d 12 (1963)
EVELYN SOPP et al., Plaintiffs and Appellants,
v.
PHILLIP R. SMITH, Defendant and Respondent.
Sac. No. 7427.
Supreme Court of California. In Bank.
Jan. 17, 1963.
Burton & Hennessy and Fred W. Burton for Plaintiffs and Appellants.
Tebbe & Correia and James E. Kleaver for Defendant and Respondent. *13
SCHAUER, J.
Plaintiffs appeal from a judgment for defendant, en...
Views: 24
Plaintiffs, appellants, are husband and wife, John and Hermain Wisdom, and their son Bobbie Lee Wisdom and they have brought this action against an insurance company which had issued an automobile garage liability policy to plaintiff John Wisdom. During the effective period of the policy, on August 9, 1958, Bobbie Lee Wisdom, then a minor, drove an automobile which became involved in an accident ...
Views: 8
This is an appeal from a judgment granting a peremptory writ of prohibition whereby the Municipal Court for the Culver Judicial District was commanded to desist from further proceedings with respect to certain counts of amended *471complaints filed in pending criminal prosecutions. The counts were those which were based on alleged violations of an ordinance of Culver City. A writ was denied with r...
Views: 2
Page 604
Defendant, in propia persona, appeals from judgment of conviction, after jury trial, of two counts of burglary. Defendant was represented at his trial by an attorney of his own choosing. Defendant admitted seven prior felony convictions. At his request this court appointed an attorney to represent him on this appeal. Later, the attorney advised this court that after and from a full study of the re...
Views: 0
Page 605
The defendant was charged with the offense of selling marijuana, i.e., a violation of section 11531 of the Health and Safety Code, and with a prior conviction of the offense of possession of a narcotic, i.e., a violation of section 11500 of the Health and Safety Code, for which he served a term in the state prison; denied the selling charge but admitted the prior conviction; was tried by the cour...
Views: 10
This is an appeal from a judgment for plaintiffs in an action for damages for wrongful death and personal injuries. Plaintiffs are Rose Delgado, the surviving wife and administratrix of the Estate of Fortunato C. Delgado, and Jess L. Martinez. Delgado was killed and Martinez injured when the sides of a sewer trench collapsed. Delgado and Martinez were the employees of a subcontractor, retained ...
Views: 1
On June 9, 1961, the defendant motor vehicle was used unlawfully to transport narcotics. Such use was without the knowledge of its owner, Carfagni. One Santiago, who was on parole for a narcotics offense and was living in Carfagni’s home, was using the vehicle with the express permission of the latter. Santiago and an accomplice held up a pharmacy and Santiago drove away in the vehicle with cas...
Views: 0
In an information filed by the District Attorney of Los Angeles County, defendant was charged with the crime of possession of a narcotic, marijuana, in violation of section 11530 of the Plealth and Safety Code. The information further alleged a prior felony conviction, to wit, violation of section 11500 of the Health and Safety Code. Defendant entered a plea of not guilty and denied the prior con...
Views: 6
Plaintiffs, R. L. Avery and Matt Carroll, hereafter collectively referred to as Avery,
1
and cross-complainant Leonard Henderson, hereafter referred to as Henderson, separately appeal from a judgment entered on February 10, 1961, vacating and setting aside a previous judgment entered on November 23, 1960, in their favor and ordering that said parties take nothing by their complaint a...
Views: 11
Page 639
— The two defendants, jointly charged in the fourth count of an amended information with having conspired to commit forgery in violation of sections 470 and 472, Penal Code, and to commit the crime of violating section 4463, Vehicle Code, were tried by the court without a jury and found guilty. Defendant Kay was placed on five years’ probation, a condition of which was that he spend 90 days in the...
Views: 0
The decisive issue on this appeal relates to the effect of a provision in an industrial family insurance policy that it shall take effect only if the insured, his spouse, and his dependent children, all of whom are covered thereby, are in sound health at the date of issuance.
Two such policies of insurance were issued by the American National Insurance Company, the plaintiff, cross-defenda...
Views: 5
Plaintiff appeals from an order entered February 17, 1961 setting aside defaults and default judgments rendered against defendants Martha Hayes and Dorothy Davis. Plaintiff has also included in the clerk’s transcript a second notice of appeal dated October 26, 1959, but this notice relates to a former appeal which has heretofore been decided, and we therefore give no consideration to this notice. ...
Views: 0
This is an appeal from a judgment quieting title in the respondent to certain real property in Oakland, California.
Question Presented
In this action to quiet title brought by a surviving husband against his three stepdaughters, the sole question on appeal is whether there is sufficient evidence to support the trial court’s finding that a deed executed by the deceased wife was not...
Views: 4
Page 661
Plaintiffs-appellants, husband and wife, first filed this action in Los Angeles County on July 29, 1960, alleging a claimed cause of action against defendants T. A. Glenn, Glenn Construction, Inc., Don Oakes, Don Oakes Lumber Company, a bank, and several John Does. They were served with process. On a motion for change of venue by them, the action was transferred to San Bernardino County on Februar...
Views: 3
Page 664
Defendants, Harold Pearl and Robert Kennedy, appeal from judgments of conviction entered after a jury found them guilty of the crimes of abortion and murder of the second degree.
Upon Pearl’s request for counsel this court appointed Rudolf H. Binsch, Esq., to represent him on this appeal. Mr. Binsch has advised the court that he finds no valid grounds for an appeal and no brief has been fi...
Views: 8
Page 671
Plaintiff minor, a girl of 7 years, was struck by a pickup truck driven by defendant while she was riding a bicycle across a street in the residential district in which she lived. She appeals from that portion of the judgment herein which awards her $5,500 as general damages, on the ground that the amount thereof is inadequate as a matter of law. The action was tried without a jury and the tr...
Views: 3
In this action for damages for the cutting, logging and removal of timber, the sole question for our determination is whether the evidence is sufficient to justify an award of treble damages in favor of the plaintiffs. The plaintiffs J. C. Caldwell, hereafter referred to as Caldwell, and Rachel V. Caldwell are husband and wife. The defendants Kenneth W. Walker, hereinafter referred to as Walker...
Views: 1
This appeal is taken from a judgment rendered in favor of plaintiff in an action brought to recover damage to a building in Sacramento caused by fire. The only issue presented on appeal is as to the sufficiency of the evidence to sustain the judgment. The building housed a series of bowling alleys. Offset against the front or western face of the building was a vertical sign pylon, holding on eith...
Views: 2
Page 683
Defendant doctor appeals from an order granting motion for a new trial after defense verdict in a malpractice action.
Plaintiffs are husband and wife and their interests are identical insofar as this appeal is concerned. For convenience, Aliene Runyan, who was defendant’s patient, is hereafter referred to as “plaintiff.”
Defendant performed a partial hysterectomy upon plaintiff for re...
Views: 0
This action arises out of a transaction between the plaintiffs, the owners of a trailer park, and the defendant contractor relating to electrical work to be done on the plaintiffs’ property. The work was not completed. The plaintiffs sued to recover a payment of $500 made to the defendant. The defendant filed a cross-complaint in which he sought to recover damages for breach of contract. The plain...
Views: 0
Page 689
Defendant J. W. Wisler, the builder of a home found to have been negligently constructed upon an
*24
improperly compacted lot, appeals from a judgment in the amount of $8,200 in favor .of plaintiff-owners Luciano and Diane Sabella for extensive damages sustained to their home as-' a result of subsidence of the supportive and nearby earth. The Sabellas appeal from that portion of th...
Views: 32
Plaintiff brought this action for damages against the retailer and the manufacturer of a Shopsmith, a combination power tool that could be used as a saw, drill, and wood lathe. He saw a Shopsmith demonstrated by the retailer and studied a brochure prepared by the manufacturer. He decided he wanted a Shopsmith for his home workshop, and his wife bought and gave him one for Christmas in 1955. In ...
Views: 112
By this petition, the State Compensation Insurance Fund seeks the annulment or modification of a workmen’s compensation award made to Harold Hutchinson by the Industrial Accident Commission. In our opinion the award was excessive.
On July 7, 1958, Hutchinson injured his neck when he fell
*47
while working within the course and scope of his employment. Based upon a finding of “...
Views: 23
Page 711
This is an appeal by the defendants from a judgment of $40,000 rendered on a jury verdict in favor of the plaintiff, Leona Seckler, in a wrongful death action. The plaintiff’s son, Howard P. Seckler, the decedent, was working for the defendants as an independent contractor. The defendants, Joseph and Robert Yamin, residents of Texas, doing business as partners in Acme Building Sales, were the s...
Views: 0
Page 713
Plaintiff filed an action alleging negligence and seeking damages for personal injuries sustained in a rear end type automobile collision. The case was submitted to the jury on the issues of negligence, proximate cause, contributory negligence and damages. The jury returned a verdict in favor of defendant.
The specific injury for which plaintiff seeks damages is the detachment of the retina which ...
Views: 1
Page 716
The appellant was charged by an information with the crime of violation of section 211 of the Penal Code, a felony, in that he and codefendant Vargas did wilfully and unlawfully rob a drugstore proprietor of narcotics and money. At the time of the offense, Vargas was armed with a .32 caliber automatic pistol and appellant was standing outside the store. Appellant was represented by counsel thro...
Views: 6
This is an appeal by defendant landowners, D. Owen Alexander and Perle Alexander, from a judgment of $37,400 in their favor in a condemnation suit. The action was commenced by the State of California acting through the Department of Public Works for the acquisition of access rights only from and to a 17.8-acre parcel of land owned by the Alexanders and situated at the northeast corner of the in...
Views: 11
Page 734
Defendant-appellant was charged with and convicted by a jury of selling heroin, in violation of Health and Safety Code, section 11501. He admitted three prior felony convictions; two for burglary, for which he served separate terms in Texas, and one for possession of a narcotic, for which he served a term in Chino State Prison. He was represented by counsel at the trial. He appealed from the judgm...
Views: 0
Page 737
This is an appeal from a judgment for plaintiff in the net sum of $2,775 in an action for.personal services; the case was tried by the court without a jury.
Plaintiff sought to recover the reasonable value of personal services rendered to the defendant for the period beginning January 10, 1958, and ending March 6, 1959. During this time the defendant owned and operated a rock and gravel an...
Views: 3
Plaintiff appeals from an adverse summary judgment. Question Presented1 Were there any issues of fact to be tried? This depends upon whether plaintiff is entitled to attack in this action the dismissal of a prior action between the same parties for the same relief. Record November 1, 1960, plaintiff commenced this action to quiet title to real property. His complaint alleged the same claim and pra...
Views: 3
Page 758
The plaintiff Cowan, who is the appellant herein, was a passenger in an automobile driven by the defendant Braden, who is one of the respondents herein; was injured when that automobile collided with an automobile driven by the defendant Bunce, who is the other respondent herein ; brought this action to recover damages on account of such injuries ; charged the driver of the automobile in which ...
Views: 6
This appeal originated in a suit for damages for personal injuries sustained in an automobile collision oceuring at approximately 7:10 a.m. on December 14, 1960, between the car which plaintiff-appellant Fred Johnson was
*257
driving and a car belonging to and being driven by defendant Delbert Turner Eaton.
The complaint alleged that Eaton, at the time of the collision, was th...
Views: 5
In this divorce action, plaintiff (wife) appeals from an order granting defendant's motion to set aside his default. Defendant appeals from an order that he pay $1,500 as attorney’s fees to plaintiff’s attorney for services in resisting the motion. On August 22, 1958, the parties made an antenuptial agreement which provided, in part, that each one should continue to own his or her separate prop...
Views: 2
— This is an appeal by the defendant from an order made October 25, 1961, denying his motion to set aside the default judgment that had been entered January 27,1960. The ground of the motion was that the judgment, one entered by a court commissioner, granted relief not demanded in the complaint and therefore unauthorized because of the restrictions of section 580, Code of Civil Procedure. The mot...
Views: 2
Page 782
Plaintiff Donata Visini brought this action to obtain a divorce upon the ground of extreme cruelty. Defendant Antonio Visini cross-complained for a divorce upon the same ground. After trial the court rendered its interlocutory judgment granting defendant the divorce; awarding custody of the parties’ two minor children to plaintiff, with defendant being ordered to pay $75 per month for the suppo...
Views: 3
Appellant Bank of America filed this action against respondents Hutchinson to recover $20,000, the amount of a promissory note of which said respondents were the makers and said bank the payee. Respondents filed a cross-complaint against the bank, joining as additional cross-defendants the appellant Coates, one of the bank’s branch managers, and one Alexander T. Chohon. By their cross-complaint...
Views: 0
Page 792
Plaintiffs, John Raymond McCarty and Helen McCarty, filed an action to quiet title to an easement *42 over the land of defendant and for a mandatory injunction requiring defendant to remove certain obstructions placed by her on the road in question and also for damages caused by the barricading of such road. The trial court found that “at the time that plaintiffs purchased said real property fr...
Views: 3
On September 12, 1958, plaintiff-appellant Roy Bristow and his Avife, Ettie May Bristow, were riding as guests in a Ford automobile owned and operated by defendant-respondent Thomas P. Bristow, the brother of Roy Bristow. At the intersection of Fairhaven Avenue and State Highway 55 (or Tustin Avenue), this car collided with a Cadillac automobile operated by defendant-respondent Marjorie Brinson a...
Views: 8
Page 801
This is an appeal from a judgment after order sustaining a general demurrer without leave to amend.
The plaintiff, who is the appellant herein, by a first amended complaint as to a third cause of action against the City of Fontana and its council, the defendants and respondents herein, alleged: That, in 1954, the defendants employed Kroeger Associates to propose a classification and pay pl...
Views: 8
Page 805
Four men, Keller, McGowan, Bullard and Jones, were charged with conspiracy to commit burglary (Pen. Code, §§ 182 and 459) and attempted burglary (Pen. Code, §§ 459 and 664). Both counts relate to an attempted entry of Richard’s Men’s Clothing Store in Ventura during the early morning of February 7, 1961. Bullard failed to appear for *212 trial. The other three were tried before a jury which fou...
Views: 14
This is an appeal from a judgment in favor of the respondent, Florence E. Vassallo, for personal-injuries sustained when a bottle of milk delivered by the appel
*13
lants broke in her hands. The complaint alleged two causes of action: the first based on the negligence of the appellants ; the second cause on breach of implied warranty. The trial court, sitting without a jury, found ...
Views: 7
Page 818
Plaintiff, Superintendent of Banks appeals from judgments rendered in three consolidated actions refusing to enjoin defendants from engaging in the business of transmitting moneys from the United States to the Philippines. In 1960, plaintiff commenced three separate actions for injunctions under Financial Code, section 3395, against defendants Jaime Catuira and Catuira and Associates, Inc.; aga...
Views: 4
Page 825
Defendant was convicted of violating section 11500, Health and Safety Code (possession of heroin). He has appealed from the judgment. Narcotic Agent Diaz, accompanied by Agent Pizzo, went to a hotel at 148 South Figueroa Street in Los Angeles to make a narcotics investigation. They had been informed by Agent Velasquez that defendant Collins, who lived there, was engaged in narcotics activity. T...
Views: 5
In an amended information filed by the District Attorney of Los Angeles County, defendant was charged in Count I with committing an assault with a deadly weapon in violation of Penal Code section 245; in Count II with kidnapping for the purpose of robbery, in violation of Penal Code section 209; and in Counts III and IV with robbery, in violation of section 211 of the Penal Code. Count I was dism...
Views: 14
This appeal is from a judgment rendered August 23, 1961, for specific performance of a contract by which defendant and appellant Connie C. Chandler agreed to sell certain real property located in Orange County. By the terms of that decree it was ordered that appellant execute a proper conveyance of the property; that respondents pay into escrow funds as required by the contract of sale and execut...
Views: 2
Plaintiffs, coproducers of a motion picture, brought this suit to enjoin, as unfair competition, use by defendants of an advertising slogan which plaintiffs claim trades and capitalizes on advance publicity covering the title they have adopted for their picture. Defendants’ slogan is designed to advertise a picture arising from the same subject matter as plaintiffs’ picture. The complaint also ...
Views: 3
Page 838
On September 7, 1961, Vernon E. Jeffries, an investigator for the District Attorney of San Joaquin County signed a petition, alleging that appellant was believed to be mentally ill and in need of supervision, care or restraint. Thereafter, after proceedings commenced under the Welfare and Institutions Code, sections 5047 et seq., duly appointed medical examiners appointed by the Superior Court of ...
Views: 1
Petitioner Spalding G. Wathen seeks a writ of mandate in an action for breach of contract to compel the respondent Superior Court to change the place of trial thereof from Santa Clara County to Fresno County. McMillan Mortgage Co., a corporation (hereinafter called McMillan), the real party in interest herein and the plaintiff below, commenced the above action against petitioner and Wathen Brot...
Views: 1
Page 847
Plaintiff, appellant, brought this action for personal injuries arising from an accident in which she was driving respondent’s automobile, and respondent cross-complained for damages to the vehicle. The jury’s verdict was that neither party is entitled to damages. Plaintiff moved for new trial; the motion was denied by operation of law when the court did not grant it within the statutory period. T...
Views: 0
The complaint in this action was filed July 14, 1961 and shows on its face that it was prepared for filing the previous day.
Plaintiff sought to recover upon a note dated November 10,
*242
1960, in the amount of $245,000, payable to James M. Banister and Helen G. Banister, and which provided for payments of $750 per month, payable on the 11th day of each calendar month. After ...
Views: 4
Page 853
This is an appeal by Clyde Steele, as administrator of the estate of James D. Steele, from a judgment in favor of the defendant, Robert Hash, in a wrongful death action. The accident resulting in Steele’s death occurred on December 5, 1958, while he was riding as a passenger in the automobile of one Ralph Adams. On the morning of the accident, Adams and Steele were proceeding across Highway 299...
Views: 7
Grace S. Van Der Oef appeals from an order in probate denying her petition for a family allowance from the estate of her deceased husband. She sought an allowance of $350 per month for her support and $350 as attorneys’ fees “as a part of her support.”
Petitioner was living with and supported by her husband at the time of his death. There are ample assets in the estate to meet her demands ...
Views: 1
Appellant, Royal Indemnity Company, an insurance carrier, brought action against the respondent, Security Truck Lines (hereafter referred to as Security), to recover moneys paid by appellant to its insured, General Petroleum Corporation (hereafter referred to as General Petroleum), for the replacement of a sign at a gasoline service station located on U.S. Highway 101 in Laytonville, California...
Views: 1
Page 861
Jointly charged with one Sheremeta, Marie Jane Russell was convicted in a non jury trial of three offenses of forgery; the case was tried upon the evidence adduced at *223the preliminary hearing. Appellant did not testify or offer other evidence. She applied for probation, which was denied, was sentenced to state prison and appeals from the judgment. Evidence was produced of the following facts. T...
Views: 0
The plaintiff-appellant in this action seeks a declaratory relief judgment and damages for breach of contract. The action originally involved three defendants other than the respondents before this court, but a summary judgment was granted in their favor. The action came to trial on August 2, 1961. A jury had theretofore been requested and was present in court. At the time set for trial, Mr. Gord...
Views: 2
Page 865
An undercover agent for the Bureau of Narcotic Enforcement, while walking the streets in Pittsburg, California, in the company of a man from whom he had made narcotics purchases, but who did not know him to be an agent, met appellant at about midnight. The other man asked appellant, in the parlance of narcotics users, if he had any marijuana. Appellant replied “no” but to see him *306later. When t...
Views: 1
The petitioner sought a writ of mandate in this proceeding and upon a denial thereof this appeal was taken.
It appears that petitioners owned a parcel of real property in an unincorporated area of Orange County. The property is zoned under the county zoning ordinance. In 1955 petitioners sought a building permit from the county in order to construct a garage building upon their property. This perm...
Views: 1
Plaintiff Donald S. Borden, a licensed real estate broker, commenced an action to recover a $12,500 real estate sale commission claimed under a written selling authorization signed by defendant. Issue was joined and the case was tried by the court sitting without a jury. Judgment was rendered in favor of defendant, and plaintiff has appealed from said judgment. The principal contention made by app...
Views: 0
The plaintiff was involved in an automobile accident in which he sustained injuries which were treated at the Kaiser Foundation Hospital by doctor-members of the Permanente Group. Because he was a prepaying member of Kaiser Foundation Health Plan the plaintiff was not required to, and did not pay for these services valued at $551.49. He nevertheless sought to recover the stated amount from the def...
Views: 1
Roseleaf Corporation sold its hotel to Willy Chierighino and his family. The consideration given by the Chierighinos included a note (not involved in this action) secured by a first trust deed and chattel mortgage on the hotel and its furnishings and three notes each secured by a second trust deed on real property owned by Willy.
1
The first trust deeds on these three parcels were ow...
Views: 23
We face the question in this case whether the statutory provision as to “a trade dispute” bars the collection of unemployment insurance by a striking employee whom the employer has discharged and permanently replaced. We hold that since the permanent replacement at once prevents any choice or volition on the part of the worker to return to the job and since it severs the trade dispute as the caus...
Views: 14
On September 20, 1959, on a main highway about 30 miles west of Blythe, California, a collision occurred between the pickup truck operated by Norman H. Shepard-son, and the pickup truck then being operated by Milford George McLellan. Shepardson was killed in the collision. Mrs. Shepardson, for herself, as administratrix of the estate of her husband, and as guardian
ad litem
of the co...
Views: 12
I dissent. Petitioner seeks a writ of prohibition against the Superior Court of the City and County of San Francisco restraining said court from proceeding further in the ease of People v. Robert G. Tompkins, which charges him with violating section 11530 of the Health and Safety Code of the State of California. Pacts: On April 6, 1962, San Francisco police officers arrested one Edward Nieman in h...
Views: 3
Page 895
This is an appeal by the plaintiff, Merlyn Kramer (hereinafter sometimes referred to as Kramer), from a judgment in favor of defendant, Ronald Barnes (hereinafter sometimes referred to as Barnes), pursuant to an order granting said defendant’s motion for a summary judgment.
Question Presented
Was a triable issue of fact presented to the trial court?
The Record
The plaintiff ...
Views: 11
Page 901
This is an action brought under section 3 of the Usury Law 1 to recover treble damages for interest paid. After a trial without a jury the court gave judgment in favor of all defendants. Thereafter the court granted plaintiff’s motion for a new trial, specifying insufficiency of the evidence as one of the grounds for the ruling. Defendants have appealed from the order granting a new trial and p...
Views: 1
The trial court found defendant guilty of three counts of bookmaking in violation of subdivisions 1, 2 and 4, section 337a, Penal Code. He appeals from the judgment of conviction and order denying motion for new trial.
The issue relates to probable cause. The evidence viewed in a light most favorable to respondent discloses the following: After receiving information from Officer Maga of th...
Views: 10
Page 909
212 Cal.App.2d 284 (1963)
Estate of KATHERINE G. MILLER, Deceased. BURKE E. BURFORD, as Executor, etc., Petitioner and Respondent; SALLY MILLER FIELD et al., Distributees and Respondents,
v.
MIRIAM MILLER HARTMAN, Objector and Appellant.
Civ. No. 169.
California Court of Appeals. Fifth Dist.
Jan. 23, 1963.
Hutchinson & Quattrin and J. Albert Hutchinson for Objector and Appellant.
Burke E...
Views: 2
This is an appeal from judgments approving the account of an executor, for preliminary distribution and related orders in a testate probate proceeding. The judgments appealed from, among other things, directed a preliminary distribution of equal one-third shares of specified property to each of two of decedent’s three daughters and denied distribution of the remaining one-third share to the truste...
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In this proceeding we are called upon to review an award of the Industrial Accident Commission in favor of respondent employee. Petitioner, the insurance carrier for the employer, urges that the award of the commission must be annulled because it was (1) completely in excess of the commission’s powers; (2) manifestly
unreasonable;
and (3) wholly unsupported by any substantial evidenc...
Views: 8
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