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All Reporters → cal-rptr-2d → Volume 46

Opinions in cal-rptr-2d Volume 46

Opinion Raising a variety of sentencing errors, a criminal defendant appeals from the judgment entered after he pleaded guilty to receiving stolen property. Finding merit in some of his contentions, we reverse part of the judgment. Factual and Procedural Background A felony complaint charges the defendant with violating Penal Code section 496 1 by receiving and holdin...
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39 Cal. App. 4th 71 (1995) 46 Cal. Rptr. 2d 8 In re the Marriage of LESLIE and NORLENE STEPHENSON. LESLIE STEPHENSON, Respondent, v. NORLENE STEPHENSON, Appellant. Docket No. D018407. Court of Appeals of California, Fourth District, Division One. September 26, 1995. *74 COUNSEL Scott B. Tepper and Robert M. Garland for Appellant. Andrew J. Parrott for Respondent. OPINION WORK, Acting P.J. Followi...
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Opinion Plaintiff Cynthia Haggard alleged that Kimberly Quality Care, Inc., and Kimberly Home Health Care, Inc. (collectively KQC) breached an implied contract to terminate her employment only for cause, and that KQC and certain employees discriminated against her on the basis of disability. A jury awarded plaintiff damages of $250,000 on her breach of contract claim, but no recovery on h...
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*1536 Opinion This appeal raises the question of whether a standard choice-of-law provision (which states that a contract shall be governed by the “laws” of a particular jurisdiction) incorporates the statutes of limitations of the chosen state. We hold that it does and further conclude that the choice-of-law provision in this case requires the application of a foreign statute of...
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Opinion Effective in 1994, the Judicial Council promulgated rules of court allowing electronic recording of superior court proceedings, despite *18 a statutory scheme authorizing official shorthand reporting of these proceedings and the Legislature’s rejection of legislation authorizing electronic recording. (See Cal. Rules of Court, rules 33(e), 891, 892, 980.3.) As rules of...
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Opinion I. Introduction This is an appeal from an order appointing a successor receiver to bring property owned by appellants into compliance with the San Francisco Municipal Code. Appellants appealed the original order appointing a receiver and this court upheld the same in an earlier decision. Appellants now renew their challenge upon the original receiver’s resignation and trial c...
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Opinion I. Introduction Plaintiff, Steven L. Re, appeals from a judgment on his complaint against his sister, defendant, Pamela Ann Re, 1 for partition of two parcels of real property which they had received by grant deed as joint tenants with their *94 mother, Jane Re Norman. 2 The sole contention on appeal is the trial court erred in determining the effect of a grant deed to Pamela wh...
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Opinion Plaintiffs own and reside on real property which lies south of the San Benito County Fairgrounds (hereafter the fairgrounds). Defendant *63is the governmental entity which owns and operates the fairgrounds. Defendant began utilizing the fairgrounds for non-fair-time motorcycle races in the mid-1980’s. Plaintiffs complained about these races, and they became increasingly annoyed by noise a...
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Opinion Petitioners, husband and wife, seek a writ of mandate directing the superior court to set aside an order overruling their demurrer to the first, second and third causes of action set forth in real party’s second amended complaint. Code of Civil Procedure, 1 section 340.1 extends the statute of limitations for a civil action based on childhood sexual abuse. We are asked to determine ...
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Opinion Meg Garstang has petitioned this court for an extraordinary writ of mandate directing the superior court to set aside its order denying her motion to compel further answers to deposition questions. We are asked to decide whether communications disclosed during mediation sessions before an ombudsperson employed by a private educational institution are privileged. We conclude they are p...
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Opinion Robert M. Webman, M.D., appeals from a judgment denying his petition for a peremptory writ of mandate to compel his reappointment to the medical staff of Little Company of Mary Hospital (LCMH). (Code Civ. Proc., § 1094.5.) He contends: “[I.] The denial of appellant Webman’s application for reappointment was neither reasonable nor necessary. [II.] Neither the facts as found by the ...
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Opinion Introduction A jury convicted defendant Ernest Angel Mora and codefendant Alex Arredondo on four counts: (1) first degree murder with the special circumstances that the murder was committed in the course of burglary and robbery, (2) burglary, (3) robbery, and (4) attempted robbery. Defendant and Arredondo (not a party to this appeal) planned an armed robbery of a drug dealer in the de...
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39 Cal.App.4th 635 (1995) 46 Cal. Rptr.2d 107 In re ANTHONY P., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN'S SERVICES, Petitioner and Respondent, v. RHONDA P., Objector and Appellant. Docket No. B091654. Court of Appeals of California, Second District, Division Five. October 24, 1995. *636 COUNSEL Jane Winer, under appointment by the Court of Appeal, f...
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Opinion I. Introduction Appellant, Rhonda P., appeals from a juvenile court order terminating her parental rights to the minor, Anthony P., pursuant to Welfare and Institutions *637Code, section 366.26.1 Appellant contends the order must be reversed because the juvenile court failed to consider adequately the minor’s wishes about placement and adoption as well as neglected to provide for his ongo...
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39 Cal. App. 4th 643 (1995) 46 Cal. Rptr. 2d 112 THE PEOPLE, Plaintiff and Respondent, v. JUAN ABUNDIO MEDINA, Defendant and Appellant. Docket No. F022731. Court of Appeals of California, Fifth District. October 24, 1995. *645 COUNSEL Kathleen Ann Dovidio, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant...
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*688 Opinion Herein, we hold defendant cannot object for the first time on appeal to the imposition of a restitution fine on the ground of an inability to pay. Defendant appeals from separate judgments following (1) his plea of guilty to second degree murder and his admission of the use of a deadly weapon and the intentional infliction of great bodily injury, and (2) the revocation of his pro...
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39 Cal.App.4th 691 (1995) 46 Cal. Rptr.2d 119 TERRY LANDRY, a Minor, etc., et al., Plaintiffs and Appellants, v. BERRYESSA UNION SCHOOL DISTRICT, Defendant and Respondent. Docket No. H013458. Court of Appeals of California, Sixth District. October 25, 1995. *694 COUNSEL Jessie Serna for Plaintiffs and Appellants. Rankin, Luckhardt, Vandeweghe, Landsness & Lahde and Michael C. Severian for Defenda...
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39 Cal.App.4th 666 (1995) 46 Cal. Rptr.2d 123 ALYSON C. CONIGLIO, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant. Docket No. H013273. Court of Appeals of California, Sixth District. October 25, 1995. *670 COUNSEL Daniel E. Lungren, Attorney General, Robert R. Buell and Gregory J. Rolen, Deputy Attorneys General, for Defendant and Appellant. Hudson, Martin, Ferr...
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Opinion American States Insurance Company (American States) appeals from a judgment ordering it to pay $487,500 on an action for equitable contribution. The trial court ruled that American States and another excess carrier, Truck Insurance Exchange (Truck), were co-insurers and share equally in the excess cost of settling a personal injury action brought against their insureds. We affirm....
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Opinion The question presented in this case is whether jurors are employees within the meaning of the Workers’ Compensation Act (Lab. Code, § 3600 et seq., hereinafter the Act), or are otherwise subject to the provisions of the Act, such that the Act provides the exclusive remedy to a juror injured while on jury service. Facts Plaintiff and appellant Rosemary Waggener alleges th...
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Opinion Eighteen tenants brought this action against their landlord, Albert Sassoon, for breach of the warranty of habitability, nuisance and other torts. A jury awarded the tenants $187,500 in general and special damages and $350,000 in punitive damages. Sassoon appeals. We affirm. *1047 Facts and Proceedings Below From December 1989 to January 1992 Albert Sassoon owned rental property c...
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Opinion This case presents the question of whether on appeal of a proceeding conducted under Family Code section 7822 which terminates parental rights the Court of Appeal must conduct an independent review of the record when counsel for the appealing parent can find no arguable issue to raise before us. (People v. Wende (1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P....
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Opinion Plaintiff and appellant David E. Idding (appellant) appeals from a judgment entered in favor of defendants and respondents North Bay Construction Company, Inc., R & R Maher Construction Company, Inc., McBail Company and Wes Bailey (respondents) which was entered following their successful motions for summary judgment. The sole issue presented is whether appellant’s second amended ...
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Opinion Westinghouse Electric Corp. attempts to state causes of action sounding in tort and breach of contract against attorneys who allegedly conspired to disclose documents covered by a secrecy agreement in a previous lawsuit. The trial court held the attempt failed. We agree. Facts and Proceedings Below Westinghouse was the defendant in a suit brought by the Southern Californ...
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*1119 Opinion The sole question presented by this writ petition is whether running of the one-year period allowed by Government Code section 12960 for the filing of an administrative complaint under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) was tolled during the plaintiff’s minority by application of Code of Civil Procedure section 352, or...
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Opinion This case illustrates that settling an unlawful detainer action does not necessarily settle all disputes arising from a residential landlord-tenant relationship and that, in order to assure finality of litigation, the settlement documents must be comprehensive. Introduction Plaintiffs and appellants Pauline and Jesus Landeros were formerly tenants in a home owned by defendants and r...
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Opinion In this appeal we decide whether dismissal is mandatory or discretionary under Business and Professions Code section 6201, subdivision (a), for a lawsuit filed by an attorney against a client to recover fees if the attorney fails to give notice of the client’s right to arbitration. The trial court concluded dismissal was mandatory. Because we conclude that dismissal is discretiona...
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Opinion John Lucas appeals from the orders of the trial court sustaining the demurrers to his complaints against respondents, the Santa Maria Public Airport District and the members of its board of directors (District), and denying his motion for reconsideration thereof. The gist of Lucas’s complaints is that the District improperly entered into an employment contract with its general manager, ...
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Opinion Petitioners Ernest P. Mansour and the law firm of Mansour, Gavin, Gerlack & Manos Co. L.P.A. (MGGM), Sue Anna Cellini and Emil Askew separately moved to quash service of summons for lack of personal jurisdiction. The superior court denied each motion and the parties have petitioned this court to overturn the superior court’s rulings. Since each petition arises from the same case a...
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38 Cal.App.4th 1813 (1995) 46 Cal. Rptr.2d 198 In re MARQUIS D. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. RODNEY D., Defendant and Appellant. Docket No. D023165. Court of Appeals of California, Fourth District, Division One. October 16, 1995. *1816 COUNSEL Susan Bookout, under appointment by the Court of Appea...
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Opinion Rodney D. appeals from orders issued at the dispositional hearing of a dependency proceeding denying him placement of his six children. In this opinion, we conclude the court failed to apply Welfare and Institutions Code1 section 361.2, subdivisions (a) and (b), the proper statutory provision to determine whether the children should have been placed with Rodney. We further decline to impl...
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Opinion Joseph Caprai, an employee of appellant Southern California Permanente Medical Group (employer), was seated as a juror in the case People v. Kwee (Super. Ct. San Bernardino County, 1994, No. RCR-21654). After Caprai was seated as a juror, he discovered that the employer’s jury duty policy was to pay him only for those days he actually served as a juror. Juror Caprai complained to the co...
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Opinion This case involves a suit brought by nine low-income renters against defendants the U.D. Registry, Inc. (UDR) and its president Harvey Saltz for alleged violations of the state and federal statutes that govern the activities of consumer credit reporting and investigative agencies. Both sides appeal from a judgment granting relief to plaintiffs Ruth Cisneros and Rudine Pettus on th...
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Opinion Statement of the Case This appeal arises out of a disciplinary action taken against a deputy sheriff, Craig Calzada. After Calzada pled nolo contendere to the misdemeanor charge of receiving stolen property—a charge based upon his purchase of three items of electronic equipment from a friend of his brother-in-law—the Los Angeles County Sheriff’s Department fired Ca...
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*949 Opinion I. Introduction This appeal arises from a tax refund action brought by Joel Neecke (Neecke) against the City of Mill Valley (City) and other defendants. 1 Neecke, on behalf of himself and others similarly situated, challenged the City’s “municipal services tax,” which was levied on real property owners beginning in fiscal year 1985-1986 and continuing...
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39 Cal.App.4th 996 (1995) 46 Cal. Rptr.2d 289 In re PAUL E., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. SUSAN E. et al., Defendants and Appellants. Docket No. G017932. Court of Appeals of California, Fourth District, Division Three. October 25, 1995. *998 COUNSEL John L. Dodd, Ann H. Qushair and Jane Winer, under appointments b...
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Opinion Introduction In this case we hold the safeguards afforded parents by section 361 of the Welfare and Institutions Code apply just as much to supplemental petitions filed under section 387 of the same code as they do to initial petitions. We further hold that mere chronic messiness in housekeeping, absent unsanitary conditions or resulting illness or accident, is not the clear and convincin...
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39 Cal.App.4th 1007 (1995) 46 Cal. Rptr.2d 295 In re ANGELICA V., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent, v. GUSTAVO V., Objector and Appellant. Docket No. D023478. Court of Appeals of California, Fourth District, Division One. October 25, 1995. *1009 COUNSEL Kathleen Murphy Mallinger, under appointment by the Court ...
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Opinion This is an appeal from a judgment terminating the parental rights of appellant father, after a selection and implementation hearing pursuant to Welfare and Institutions Code section 366.26.1 Counsel appointed for appellant filed a brief which summarized the procedural and factual background of the case, advised that no substantive issues warranting reversal on appeal could be identified,2 ...
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Opinion This appeal involves a dispute between lawyers for the litigants below. Plaintiffs’ counsel appeal, on their own behalf, from the *1034 court’s imposition of sanctions for the filing of a frivolous lawsuit. They allege the court’s order was unconstitutional, exceeded its jurisdiction, was defective in form, and was inconsistent with the court’s denial of sanctions to ...
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Opinion In this case we consider whether corporate depositors may pursue causes of action against their bank for the negligent payment of forged checks when they failed to discover and report the forgeries to the bank in a timely manner. We hold that the statutory provisions of the California Uniform Commercial Code 1 preclude the depositors from asserting the forged checks aga...
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39 Cal.App.4th 1095 (1995) 46 Cal. Rptr.2d 332 SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; DEPARTMENT OF GENERAL SERVICES, Real Party in Interest. Docket No. D024039. Court of Appeals of California, Fourth District, Division One. October 27, 1995. *1098 COUNSEL Gray, Cary, Ware & Freidenrich, Merrill F. Storms, Jr., Marcel...
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Opinion In 1990 the California voters passed the Proposition 132 (Cal. Const, art. X B) 1 initiative. Among other things, Proposition 132 banned the use of certain types of fishing gear along large portions of the California coastline. Appellants are fishermen adversely affected by this ban and seek to void Proposition 132. I Factual and Procedural History Ap...
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39 Cal. App. 4th 1123 (1995) 46 Cal. Rptr. 2d 351 THE PEOPLE, Plaintiff and Respondent, v. JOHN EARL CARTWRIGHT, Defendant and Appellant. Docket No. C019075. Court of Appeals of California, Third District. October 30, 1995. *1129 COUNSEL Wesley A. Van Winkle, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assist...
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Opinion Last April, Division Four of our court held that subdivision (a)(3) of section 1785.13 of the Civil Code 1 —which limits the information a credit agency may report regarding a tenant’s involvement in unlawful detainer actions—unconstitutionally infringes upon First Amendment rights by prohibiting the truthful reporting of public information. (U.D. Registry, Inc. ...
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Opinion Peram, a California limited partnership, appeals the trial court’s judgment in favor of Chumash Hill Properties, Inc. (Chumash) on Chumash’s complaint against Peram, as well as appealing the court’s dismissal of Peram’s cross-complaint against Chumash. We conclude the trial court properly determined Chumash’s subleasehold survived its sublessor’s rejection of the primary lease in ...
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Opinion Introduction Plaintiffs and appellants Ohannes Tchorbadjian and Magy Tchorbadjian (plaintiffs or the Tchorbadjians) appeal from the judgment entered following *1214 the grant of the motion for summary judgment of defendants and respondents Kane & Whelan and Allan Whelan (Whelan). Plaintiffs sued Whelan for legal malpractice. Whelan’s motion for summary judgment w...
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Opinion By information filed in Stanislaus County Superior Court on January 13, 1994, appellant, Kathleen O’Connell, was charged with the attempted premeditated murder of her two minor children in violation of *1185 Penal Code sections 664/187 and two related counts of felony child endangerment in violation of Penal Code section 273a, subdivision (l). 1 Each count ...
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*1237 Opinion Jairo Carrea Estrada, Javier Ruiz-Serrano, and Raul Serrano-Ruiz appeal their convictions for conspiracy to transport cocaine, transportation of cocaine, and possession of cocaine for sale, with quantity enhancements as to Javier and Raul. 1 Estrada contends his consecutive sentence for possession for sale of cocaine was unauthorized because it merged wit...
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Opinion A jury convicted appellant of forcible rape (Pen. Code, 1 §261, subd. (a)(2); count II), forcible sodomy (§286, subd. (c); count V), and forcible oral copulation (§ 288a, subd. (c); count IX). 2 The trial court found true four felony conviction allegations (§§ 667, former subd. (a), 667.6, former subd. (a)) and imposed a 35-year state prison sentence. Appellant contends his trial ...
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*1279 Opinion Plaintiff the 3250 Wilshire Boulevard Building, a limited partnership, appeals from an order of dismissal, entered June 23, 1993, after a demurrer was sustained, without leave to amend, to the claims pleaded in its first amended complaint against respondents Employers Insurance of Wausau and Wausau Underwriters Insurance Company. (A co-plaintiff, Housing Affiliates, Inc., pleade...
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Opinion There is currently no tort liability in California for refusal to renew a professional liability insurance policy for reasons in violation of public policy. Whether such liability should be imposed is a matter for the people of California to decide, either by initiative or through the Legislature. We may not legislate on the subject in their stead. Procedure NORCAL Mutua...
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Opinion Statement of the Case Defendant Joel Medina Murillo was convicted of residential burglary after a court trial. The court further found true allegations that he suffered two prior serious felony convictions. Thereafter the court struck one of the prior convictions. It sentenced defendant under the three strikes law (Pen. Code, § 667, subds. (b)-(i) 1 ) and impos...
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39 Cal.App.4th 1324 (1995) 46 Cal. Rptr.2d 409 MICHAEL POMPILIO et al., Plaintiffs and Appellants, v. KOSMO, CHO & BROWN et al., Defendants and Respondents. Docket No. B091868. Court of Appeals of California, Second District, Division Six. November 2, 1995. *1325 COUNSEL R. Thomas Wire for Plaintiffs and Appellants. Kosmo, Cho & Brown and Malcolm Tator for Defendants and Respondents. OPIN...
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Opinion During arbitration proceedings, plaintiffs and defendants settle their lawsuit. Plaintiffs then renege. At a second arbitration hearing the arbitrator finds the settlement to be valid. Three years later, defendants obtain a judgment confirming the arbitration award which upheld the settlement. Plaintiffs sue the attorneys who negotiated the settlement. Does the statute of limitations for ...
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*1351 Opinion CQL Original Products, Inc. (OP) appeals an order granting National Hockey League Players’ Association’s (NHLPA) motion to dismiss OP’s first amended complaint pursuant to Code of Civil Procedure 1 section 410.30 enforcing the forum selection clause contained in the parties’ license agreement. OP contends enforcing the combined choice-of-forum/choice-of-l...
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*Supp. 9Opinion Appellants appeal from a judgment in an action to recover excess rent charged in violation of Santa Monica Rent Control Charter Amendment (SMRCCA) section 1809, subdivision (a). Appellants claim the trial court erred in concluding respondent’s claim for excess rent was subject to the three-year limitations period set forth in Code of Civil Procedure section 338, subdivision (a). Ap...
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Opinion This case raises the question of whether Vehicle Code section 16020,1 subdivision (a), requires drivers and owners of motor vehicles to carry not only evidence of the name of their insurance company and the number of the their insurance policy but also evidence that their insurance policy is currently in effect. We conclude that it does not. *Supp. 3Linda Darlene Latif (hereinafter appella...
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Opinion C. Byron Scott and A1 Johnson were engineers employed by Pacific Gas and Electric Company (PG&E) in a senior managerial capacity when they were demoted. The demotion resulted in an approximately 25 percent reduction in salary and benefits, as well as a loss of all supervisorial authority. They sued, claiming, among other things, that PG&E had breached an implied-in-fact contract t...
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Opinion Introduction Appellant and cross-respondent Donald Schriver, Inc. (appellant) appeals from the judgment of the superior court which denied its request, in its petition for writ of mandate (Code Civ. Proc., § 1094.5), to compel respondent and cross-appellant California Fair Employment and Housing Commission (Commission) to set aside the following determinations: (1) that appel...
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*935 Opinion Plaintiffs in this case are five cities: the Cities of Rancho Cucamonga, Temple City, Compton, El Segundo and Carson (the city plaintiffs) and five individuals: Dennis Stout, Ken Gillanders, Walter Tucker, Carl Jacobson and Katherine A. Calas, each of whom is a property owner and taxpayer of one of the city plaintiffs. Defendants are the Counties of San Bernardino an...
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39 Cal.App.4th 984 (1995) 46 Cal. Rptr.2d 491 In re JOSHUA J., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. JAMES J. et al., Objectors and Appellants. Docket No. D022589. Court of Appeals of California, Fourth District, Division One. September 29, 1995. *986 COUNSEL Steven A. Schutte and Alice C. Shotton, under appointm...
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Opinion James J. and Delores D. appeal a judgment under Welfare and Institutions Code1 section 300, subdivision (j), declaring their son, Joshua J., a dependent of the San Diego County Juvenile Court and removing him from their custody. James contends the trial court erred by (1) not allowing him to relitigate the basis of a prior dependency proceeding regarding Joshua’s half-sibling, and (2) admi...
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40 Cal. App. 4th 398 (1995) 46 Cal. Rptr. 2d 498 JOHN A. BAUGHMAN, Plaintiff and Appellant, v. MEDICAL BOARD OF CALIFORNIA, Defendant and Respondent. Docket No. B075018. Court of Appeals of California, Second District, Division Four. October 23, 1995. *399 COUNSEL Ginsburg & Hlywa and Evan L. Ginsburg for Plaintiff and Appellant. Daniel E. Lungren, Attorney General, Barry D. Ladendorf and Hei...
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Opinion Larry F. Brooks, Yuba County Planning and Building Services Director, and Frank D. Ellis II, the deputy director, sued individual members of the 1993-1994 Yuba County Grand Jury claiming they were defamed in two grand jury reports about the operation of their department. *1290Plaintiffs cited Penal Code section 930,1 and alleged the reports were not privileged because the grand jury retur...
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39 Cal. App. 4th 1309 (1995) 46 Cal. Rptr. 2d 507 MARTIN SUMAN, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; BMW OF NORTH AMERICA, INC., Real Party in Interest. Docket No. B094591. Court of Appeals of California, Second District, Division Three. November 2, 1995. *1312 COUNSEL Lawrence J. Hutchens for Petitioner. No appearance for Respondent. Lewis, D'Amato, Brisbois &...
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Opinion Will a good faith settlement between the issuer of a blanket excess liability policy of insurance and its insureds, with respect to an occurrence assertedly covered by the policy, bar the claim of the issuer of a second excess liability policy, which assertedly covers the same occurrence, against the first insurer, for contribution of a proportionate share of amounts the second in...
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Opinion Handlery Hotels, Inc. (Handlery) appeals from the trial court’s grant of summary judgment in favor of the Franchise Tax Board (the Board). (Code Civ. Proc., § 437c.) In its complaint, Handlery sought a refund of taxes, contending that it had overpaid its 1991 franchise tax. The only issue before this court is a purely legal one—whether Handlery’s 1991 franchise tax should be calcu...
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*1373 Opinion Victor Q. Ramirez was convicted by a jury of second degree robbery (Pen. Code, §§ 211, 212.5) and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), a lesser included offense within the charged offense of attempted murder. (Pen. Code, §§ 664, 187.) 1 The jury also found that Ramirez intentionally inflicted great bodily injury upon the victim (§ 12022.7) and used a d...
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Opinion Defendant Lasance Ravon Douglas (defendant) was convicted of kidnapping for robbery, robbery, forcible oral copulation and rape. Sentence enhancement allegations that he kidnapped the victim for purposes of forcible oral copulation and rape were found true. In this appeal, he contends that: 1. It was unconstitutional for the case to be tried before a municipal court judge, pursuant to...
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Opinion In this case, we hold that a prevailing defendant on a special motion to strike brought pursuant to Code of Civil Procedure 1 section 425.16 is entitled to recover attorney fees and costs only for the motion to strike, not for the entire action. I. Factual And Procedural Background This case is the follow-up to Lafayette Morehouse, Inc. v. Chr...
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OPINION Introduction This appeal raises the issue of the validity of an administrative regulation of the Department of Social Services to limit reimbursement to the County of Los Angeles for emergency shelter costs for abused children. The County of Los Angeles contends the regulation which places a time limitation on social services provided at MacLaren Children’s Center is in excess of the ...
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39 Cal.App.4th 1419 (1995) 46 Cal. Rptr.2d 558 In re the Marriage of THOMAS M. FITZGERALD and CHRISTOPHER ELAINE KING. THOMAS M. FITZGERALD, Respondent, v. CHRISTOPHER ELAINE WILSON, Appellant. Docket No. H013512. Court of Appeals of California, Sixth District. November 8, 1995. *1421 COUNSEL William M. Hilton for Appellant. Gregory Scott MacSwain for Respondent. OPINION COTTLE, P.J. In a contest...
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Opinion In a contested jurisdictional hearing, the family court determined that Christopher Elaine Wilson, a resident of Texas, had consented to jurisdiction in California. Wilson appeals from the court’s order, contending that her contacts with California were limited to opposing custody and visitation orders under the Uniform Child Custody Jurisdiction Act (UCCJA; Fam. Code, § 3400 et seq.), wh...
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Opinion Sonny Le appeals from a judgment sentencing him to state prison for four years upon convictions of felony assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1), hereinafter ADW), misdemeanor battery (Pen. Code, § 242), and misdemeanor petty theft (Pen. Code, § 484). At the trial, appellant was charged only with second d...
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Opinion In this case we hold that provisions in a decedent's will, which was executed during a marriage that had been dissolved prior to his death, granting certain bequests in the event his spouse predeceased him to “my children and my spouse’s children” and “my issue and my spouse’s issue” fail as to “my spouse’s children” and “my spouse’s issue,” absent an expression of intent that the...
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Opinion A law firm performs services which significantly increase the benefits received by an injured worker. We hold that under such circumstances it is error to apply the Goler 1 rule in setting the attorney fees. We therefore annul the decision of the Workers’ Compensation Appeals Board (Board) denying reconsideration of the attorney fees awarded. Facts ...
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Opinion A defendant convicted of first degree murder with at least one special circumstance found true will be sentenced to either death or life *572 imprisonment without the possibility of parole. (Pen. Code, § 190.2; all further statutory references are to this code.) One of these special circumstances is the felony-murder special circumstance under which a murder occurred ...
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11 Cal.4th 583 (1995) 904 P.2d 1205 46 Cal. Rptr.2d 594 KATHERINE ADAMS, Plaintiff and Appellant, v. AARON PAUL, Defendant and Respondent. Docket No. S041623. Supreme Court of California. November 22, 1995. *585 COUNSEL Barry Balamuth and Kelly Balamuth for Plaintiff and Appellant. Melamed & Birkley, Howard R. Melamed, Hansen, Boyd, Culhane & Watson, Kevin R. Culhane, Betsy S. Kimball and...
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Opinion The United States appeals an order establishing the relative priority of claims to the proceeds of the sale of real property owned by *1536decedent Howard Silberman. The United States contends that, pursuant to the federal insolvency statute (31 U.S.C. § 3713) its unnoticed tax liens take priority over the prior recorded judgment liens of respondents Household Finance Corporation and Hous...
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Opinion Gordon Vann, individually and doing business as Vann’s Auto Body Shop, Inc., (Vann) brought a declaratory judgment action against its liability insurer, the Travelers Companies (Travelers), seeking a declaration that Travelers was obligated to defend it in connection with a third party action alleging environmental contamination arising out of the operation of Vann’s auto body rep...
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39 Cal.App.4th 1573 (1995) 46 Cal. Rptr.2d 623 In re the Marriage of KENNETH and PAMELA B. LISI. PAMELA B. LISI, Appellant, v. PEARL FRANKLIN VOGEL et al., Respondents. Docket No. B086709. Court of Appeals of California, Second District, Division Five. October 26, 1995. *1574 COUNSEL Brady, Riggs, Ford & Booth and Brendan P. Brady for Appellant. Honey Kessler Amado, in pro. per., and for Resp...
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*1575Opinion On November 4, 1992, Kenneth Lisi filed a petition to dissolve his marriage to Pamela Lisi. A bitter battle developed over the custody of the parties’ two minor children. Pursuant to Family Code section 3150, which authorizes the court to appoint private counsel to represent the interests of children in a custody proceeding, the court appointed respondent Pearl Franklin Vogel to repr...
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Opinion There are two issues in these cross-appeals from a judgment in favor of Matthew Poire against C.L. Peck/Jones Brothers Construction Corporation, Inc. (Peck/Jones) for injuries suffered in a construction accident. Peck/Jones argues the trial court erred by refusing to reduce the judgment by an offset for amounts paid to plaintiff by settling defendants. Plaintiff argues that he was...
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Opinion Introduction Plaintiff Terry Van Ryn, as guardian ad litem of two minor children, has appealed from the trial court rulings granting the motion of defendant Korean Air Lines Co., Ltd. (KAL) to enforce a compromise of the minors’ *1600 claims against KAL and approving the settlement. In 1983, Rebecca Scruton, the sole parent of the minors, was a passenger on KAL flight 007 and died w...
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Opinion Defendant Toby Titus Wade appeals from a judgment of conviction for second degree murder (Pen. Code, § 187), 1 with a finding of personal use of a deadly weapon (knife) in the commission of a felony (§ 12022, subd. (b)). Defendant contends (1) the trial court erroneously failed to instruct sua sponte on lesser included offenses, (2) other jury instructions were improper...
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39 Cal. App. 4th 1478 (1995) 46 Cal. Rptr. 2d 651 POWAY UNIFIED SCHOOL DISTRICT, Plaintiff and Appellant, v. JIH JUNG CHOW et al., Defendants and Respondents. Docket No. D019826. Court of Appeals of California, Fourth District, Division One. November 9, 1995. *1480 COUNSEL Lloyd M. Harmon, Jr., County Counsel, Diane Bardsley, Chief Deputy County Counsel, Lewis P. Zollinger and Michael B. Poyner, ...
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39 Cal.App.4th 1561 (1995) 46 Cal. Rptr.2d 667 FAMILY PLANNING SPECIALISTS MEDICAL GROUP, INC., et al., Plaintiffs and Respondents, v. ROBERT POWERS, Defendant and Appellant. Docket No. A066362. Court of Appeals of California, First District, Division Two. November 9, 1995. *1563 COUNSEL Michael Millen for Defendant and Appellant. Smith, Merrill & Peffer and Mary B. Yudien for Plaintiffs and Resp...
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Opinion The Division of Labor Standards Enforcement (DLSE) appeals a judgment by court trial in favor of respondent Kray Cabling Company, Inc., on the DLSE’s action for wage deficiencies. It contends the trial court erred in concluding its action was time barred, and in awarding respondent attorney fees under Code of Civil Procedure section 1028.5. We affirm. *1591 Facts The facts are not...
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Opinion Plaintiff and appellant Jean T. Weber, “individually and as trustee for the Jean T. Weber Trust,” brought this action *1581 against Unique Funding, Inc., and its assignees defendants and respondents Langholz and Wolveck, under the federal Truth in Lending Act (15 U.S.C. § 1601 et seq., hereafter the Act), seeking return of interest and fees paid on a loan secured by r...
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Opinion Plaintiff Saltarelli & Steponovich, a law firm, appeals from an order dismissing its action against Peter J. Douglas, a former client. The primary question presented is whether plaintiff’s contractual lien on defendant’s prospective recovery in the lawsuit for which the firm had been retained to represent defendant survived defendant’s discharge in bankruptcy. We hold it does. ...
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39 Cal.App.4th 1826 (1995) 46 Cal. Rptr.2d 688 JONATHAN M., Petitioner, v. THE SUPERIOR COURT OF MENDOCINO COUNTY, Respondent; MENDOCINO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest. Docket No. A071305. Court of Appeals of California, First District, Division Five. November 14, 1995. *1827 COUNSEL Mason & Morrison and Timothy J. Morrison for Petitioner. No appearance for Respo...
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Opinion This appeal involves apparent conflicts between the provisions of Penal Code section 4011.6 and Welfare and Institutions Code sections 6550 and 6551, each authorizing the treatment of a minor offender referred to and detained in an appropriate state mental health facility (facility) pursuant to the Lanterman-Petris-Short (LPS) Act, Welfare and Institutions Code section 5000 et seq...
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Opinion Appellants Mary Havlicek and Stephen C. Havlicek, directors of respondent Coast-to-Coast Analytical Services, Inc. (CCAS), sought an *1849 order from the superior court allowing them to inspect the books and records of CCAS. In addition, appellants unsuccessfully sought to enjoin a pending merger by CCAS until they had completed their inspection. Appellants contend they have an “absol...
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40 Cal.App.4th 358 (1995) 46 Cal. Rptr.2d 715 THE PEOPLE, Plaintiff and Respondent, v. HECTOR ENCINAS VALENZUELA, Defendant and Appellant. Docket No. E013666. Court of Appeals of California, Fourth District, Division Two. November 16, 1995. *360 COUNSEL Susan E. Cardine, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, ...
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Opinion Hector Encinas Valenzuela pled guilty to two counts of gross vehicular manslaughter while intoxicated. (Pen. Code, § 191.5.) He was sentenced to prison and appeals, claiming defects in the pleadings and sentencing error. We reject his contentions and affirm. Facts During the early morning hours of New Year’s Day 1993, Valenzuela, while intoxicated, drove down a Riverside street in excess o...
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40 Cal. App. 4th 446 (1995) 46 Cal. Rptr. 2d 730 THE PEOPLE, Plaintiff and Respondent, v. CARLTON WILLIAMS, Defendant and Appellant. Docket No. B087667. Court of Appeals of California, Second District, Division Seven. November 20, 1995. *450 COUNSEL Corinne S. Shulman, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Ch...
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40 Cal.App.4th 492 (1995) 46 Cal. Rptr.2d 744 DEBORAH B. ANDREWS, Plaintiff and Respondent, v. BEATRIZ VALDEZ, as Registrar/Recorder, etc., Defendant and Appellant. Docket No. B083581. Court of Appeals of California, Second District, Division Three. November 21, 1995. *493 COUNSEL De Witt W. Clinton, County Counsel, and Halvor S. Melom, Principal Deputy County Counsel, for Defendant and Appellant...
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Opinion This is an automatic appeal (Pen. Code, § 1239, subd. (b)) from a judgment of death under the 1978 death penalty law (id., § 190 et seq.). On March 18, 1981, the District Attorney of Los Angeles County filed an information against defendant Ricardo Rene Sanders and Carletha Stewart and Franklin Freeman, Jr., in the superior court of that county, in connection with ...
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Opinion Petitioner, the City of Los Angeles (City), seeks an extraordinary writ of mandate directing the superior court to set aside orders issuing writs of mandate in two related cases filed by real parties in interest, 1 Kang and Miyamoto. *596 I. Factual and Procedural History Since April 1985, the City has required a conditional use permit for off-site al...
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40 Cal.App.4th 670 (1995) LOCAL 21, INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, AFL-CIO, Plaintiff and Appellant, v. THORNTON C. BUNCH, JR., as Employee Relations Director, etc., et al., Defendants and Respondents; WALDEMAR ROJAS, as Superintendent of Schools, etc., et al., Real Parties in Interest and Respondents. Docket No. A068195. Court of Appeals of California, First Di...
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Opinion Appellant, Local 21, International Federation of Professional and Technical Engineers, AFL-CIO (Local 21),1 appeals the denial of its *673petition for writ of mandate seeking to enforce an arbitration award concerning wages and benefits of certain school district employees. This case arises out of the passage of Proposition B, which amended the Charter of the City and County of San Francis...
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*746 Opinion The Department of Motor Vehicles (DMV) appeals from a judgment granting William Pybum’s petition for a writ of mandate and ordering DMV to reinstate Pybum’s driving privilege. For reasons we shall explain, we reverse the judgment. Facts On October 11, 1991, Pybum was involved in an accident that caused bodily injury. A peace officer investigating the accident believed Pybum w...
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*1502 Opinion A portion of Rambla Pacifico Road 1 in what is now the City of Malibu (City) and earlier was within the County of Los Angeles (County) was blocked by earth movement and closed by the County in 1984. Re-Open Rambla, Inc. (ROR), whose members include affected homeowners, wants the Road reopened but first must determine who owns the portion lying within the City, incorporated in ...
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Opinion Here we hold that the superior court located within the county in which an inmate is convicted of the crime that serves as the foundation for his placement in a state hospital as a mentally disordered offender (MDO) is the proper court to hear a petition for involuntary treatment under Penal Code section 2970. 1 Thus, the prosecutor who obtains the conviction that results in the place...
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Opinion A child died as the result of a motor vehicle accident caused by a drunk driver. The child’s parents became involved with Mothers *19 Against Drunk Driving (M.A.D.D.). M.A.D.D. banned them from membership because of their allegedly disruptive conduct. The parents, Carol and James Harris, sued respondents, M.A.D.D., and its general counsel, H. Dean Wilkerson, for arbit...
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39 Cal. App. 4th 1811 (1995) 46 Cal. Rptr. 2d 836 THE PEOPLE, Plaintiff and Respondent, v. HENRY DAVID FLORES, Defendant and Appellant. Docket No. B087747. Court of Appeals of California, Second District, Division Six. November 14, 1995. *1812 COUNSEL Raymond L. Girard, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, C...
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Opinion After a jury trial defendant Ralph E. Johnson was convicted of one count of violating Penal Code section 288, subdivision (b) (lewd act *26 on a child by force) and ten counts of violating Penal Code section 288, subdivision (a) (lewd act on a child). 1 [[/]] * [[/]]* We affirm. [[Facts]]* Discussion [[I, II]]* III Johnson [[/]]* contends the prosecution abused its d...
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Opinion The primary issue in this case is whether Nguyen committed burglary when he entered a house with the intent to steal property by giving the victim a worthless check in exchange for various items. We conclude the conduct constitutes burglary. Hung Hao Nguyen was convicted of three counts of burglary (Pen. Code, 1 § 459). In each count the victim advertised an item for sale in a local...
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Opinion In this appeal, we are required to determine if the trial court or the jury should decide the issue of whether an insurer had “proper cause” to pursue a declaratory relief action in which it disputed insurance coverage. (Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1151-1152 [271 Cal.Rptr. 246].) This question arises in the context of an insured’s c...
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40 Cal.App.4th 404 (1995) 46 Cal. Rptr.2d 862 THE PEOPLE, Plaintiff and Respondent, v. JESSE CHRIS APPLIN, Defendant and Appellant. Docket No. F022260. Court of Appeals of California, Fifth District. November 17, 1995. *406 COUNSEL Eileen S. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorn...
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*407Opinion Following denial of his suppression motion (Pen. Code,1 § 1538.5), appellant Jesse Chris Applin pleaded guilty to possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)) and admitted having suffered a prior felony conviction (§ 667, subds. (c)-(j)). He was sentenced to 32 months in prison, calculated as the lower term of 16 months doubled pursuant to section 667, subdivisi...
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Opinion This is the second appeal arising out of litigation between Structural Steel Fabricators, Inc. (Structural) and the City of Orange. In the first, Structural Steel Fabricators, Inc. v. City of Orange (1991) 234 Cal.App.3d 1206 [286 Cal.Rptr. 24], we reversed a summary judgment in favor of the city on its Civil Code section 3210 1 statute of limitations defense to Structural’s actio...
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40 Cal.App.4th 477 (1995) 46 Cal. Rptr.2d 871 NORMA LAURA MEDINA et al., Plaintiffs and Appellants, v. HILLSHORE PARTNERS et al., Defendants and Respondents. Docket No. B089355. Court of Appeals of California, Second District, Division Six. November 21, 1995. *479 COUNSEL William L. Veen, Kevin Lancaster and Gary Alexander for Plaintiffs and Appellants. Henderson & Wohlgemuth, James B. Cole a...
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40 Cal. App. 4th 539 (1995) 46 Cal. Rptr. 2d 880 PAUL MATSON, Plaintiff and Appellant, v. EUGENE J. DVORAK, Defendant and Respondent. Docket No. C020162. Court of Appeals of California, Third District. November 21, 1995. *541 COUNSEL Siegel, Yee & Jonas and Dan Siegel for Plaintiff and Appellant. Norman & Eames and James K. Norman for Defendant and Respondent. [Opinion certified for parti...
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Opinion The grandmothers of the plaintiff-appellants in this case ingested the drug diethylstilbestrol (DES) while pregnant with appellants’ mothers. It is claimed that, as a result of the ingestion, appellants’ mothers suffered disabilities that manifested themselves at various points after birth and that their children (appellants) suffered similar injuries when they were bom...
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Opinion The word “enhancement” is bound to send shivers down the spine of any person charged with a felony. In some cases, such as the instant one, punishment for the enhancement may exceed the punishment for the underlying substantive offense. As the moving party in a criminal action, it is the People’s obligation not only to plead and prove an enhancement, but also to tender adequate in...
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40 Cal. App. 4th 651 (1995) 46 Cal. Rptr. 2d 925 FOOD 4 LESS SUPERMARKETS, INC., et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; TABATHA FLETCHER, Real Party in Interest. Docket No. B092807. Court of Appeals of California, Second District, Division Four. November 28, 1995. *652 COUNSEL Morrison & Foerster, Timothy F. Ryan and Janie F. Schulman for Petitioners. No...
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40 Cal.App.4th 875 (1995) 46 Cal. Rptr.2d 929 In re GARY P. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. FRANCES S., Defendant and Appellant. Docket No. G017415. Court of Appeals of California, Fourth District, Division Three. November 30, 1995. *876 COUNSEL Conrad Herring, under appointment by the Court of Appeal, for Def...
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Opinion Frances S. (mother) appeals from a judgment of the juvenile court terminating her parental rights and releasing minors Gary P., Brittany P., and David P., for adoption. (Welf. & Inst. Code, § 366.26.) The sole ground for this appeal is mother’s contention the judgment is not in the best interest of minors because adoption would sever ties with the maternal grandmother, depriving them of t...
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