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All Reporters → daily-journal-dar → Volume 91

Opinions in daily-journal-dar Volume 91

OPINION On July 26, 1990, defendant Steven M. Marshank and two co-defendants were indicted and charged with federal statutory violations related to their alleged membership in an organization which imported large amounts of hashish and marijuana into the United States. 1 Marshank brings this motion to dismiss the indictment against him, alleging that the United States governmen...
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Opinion In this case we must determine whether a counteroffer precludes acceptance of a statutory settlement offer under Code of Civil Procedure section 998, 1 and whether when a section 998 offer is served by mail, section 1013, subdivision (a) applies to extend the time to respond by five days. Facts The facts underlying this settlement controversy are not disputed....
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52 Cal.3d 453 (1990) 801 P.2d 1107 276 Cal. Rptr. 356 THE PEOPLE, Plaintiff and Respondent, v. STEPHEN WAYNE ANDERSON, Defendant and Appellant. Docket No. S004709. Crim. No. 25383. Supreme Court of California. December 27, 1990. *464 COUNSEL William M. Goodman, under appointment by the Supreme Court, David R. Callaway and Topel & Goodman for Defendant and Appellant. John K. Van de Kamp, Attor...
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Opinion Joseph K. appeals from a judgment declaring Crystal K. free from his parental custody and control (Civ. Code, § 232). Joseph contends that certain minimum federal standards applicable to termination of parental rights to an Indian child as set forth in the Indian Child Welfare Act of 1978 25 United States Code Section 1901 et seq., 1 (the Act or ICWA) were not met neces...
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Opinion Select Insurance Company and Insurance Company of the Pacific Coast (insurers) seek extraordinary relief after the court partially granted a motion for summary adjudication of issues brought by real parties Canine Eye Registration Foundation, Inc., Dolly B. Trauner, individually and as executrix of the estate of Lawrence M. Trauner *634 (collectively CERF). The insure...
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Opinion Frank Marchuk challenges the postarbitration dismissal of his tort action for failure to bring it to trial within six months after he filed a request for trial de novo. We agree he was not diligent in securing a timely trial date and affirm. I This matter remained submitted to judicial arbitration more than four years and six months after it was initiated. Marchuk timely filed a *1...
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Opinion Appellant Richard Mockel entered pleas of no contest in West Kern County Municipal Court to violating Penal Code 1 section 191.5, subdivision (a) (gross vehicular manslaughter while intoxicated, count one); violating Vehicle Code section 20002, subdivision (a) (failure to stop when involved in an accident causing property damage, coun t two); violating Vehicle Code section 14603 (vi...
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David W. Sandell, a citizen of the State of Washington, appeals from determinations made by the Federal Aviation Administration (FAA) relative to certain airfields in the San Juan Islands. The case is a skirmish in a protracted conflict between Sandell, a user of one airfield, and neighbors who propose building a competing airfield. FACTS In 1980 Sandell resurfaced, graded, straighten...
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Opinion I. Statement of the Case Defendant David Michael Fernandez appeals from a judgment entered after a jury found him guilty of 155 counts of lewd and lascivious conduct upon a child and 1 count of lewd conduct by force (Pen. Code, § 288, subds. (a) and (b) (hereafter sections 288(a) and 288(b)).1 He admitted having a prior “serious felony” conviction for rape and having served a prior prison ...
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Opinion The judgment on appeal arises from two actions brought by tenants in a residential hotel against a landlord who engaged in a disrup *688 tive program of renovation. On March 17, 1986, 13 tenants filed a complaint against James Lee in the Superior Court of the City and County of San Francisco. The Balmoral Hotel Tenants Association and a second group of tenants filed a...
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Opinion Defendant Gregory Goodner was charged by information with one count of robbery (Pen. Code, §§ 211-212.5, subd. (b)). The information alleged he had previously been convicted of four separate serious felonies involving burglary of an inhabited dwelling (Pen. Code, §§ 667, 1192.7) and had served three separate prior prison terms (Pen. Code, § 667.5, subd. (b)). Defendant moved to strike t...
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Opinion Karen J. appeals an order terminating her parental rights to her children, Mario C. and Trisha C., under Civil Code1 section 232, subdivision (a)(7). She argues on appeal that clear and convincing evidence does *602not support the trial court’s findings; that reasonable reunification services were not provided her; and that the trial court failed to consider appointing counsel for the min...
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*309Opinion We review the recommendation of the Review Department of the State Bar Court of the State of California (review department) that Gerald King (King) be suspended from the practice of law for a period of four years; that execution of suspension be stayed; and that King be placed on probation for the period subject to certain conditions, including a three-month actual suspension. We agree...
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Opinion In this matter we review the recommendation of the Review Department of the State Bar Court that petitioner Charlotte R. Stern *321 lieb be suspended from the practice of law for a period of two years, with that suspension stayed and petitioner placed on probation for a period of two years with an actual suspension of one hundred and twenty days as a condition of that probation. The...
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Opinion The Review Department of the State Bar Court recommends that petitioner Edward Martin Aronin be suspended from the practice of law for five years and that execution of his suspension be stayed subject to certain conditions including actual suspension for two years. The review department rejected a State Bar referee’s recommendation that petitioner be publicly reproved rather than suspen...
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Opinion We review the recommendation of the Review Department of the State Bar Court of the State of California (review department) that Salvador Diaz Baca (Baca) be disbarred from the practice of law in California. Baca failed to respond to the notice to show cause and allowed his default to be entered. He did not appear at either the Hearing Department of the State Bar Court (hearing pa...
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Travis Lawrence Page (the appellant) appeals his sentence imposed after conviction of one count of aiding and abetting and possession of a controlled substance with intent to distribute, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1) (1988). The probation officer calculated a sentence under the Guidelines at 41 to 51 months in prison. At the sentencing hearing, the appellant requested a ...
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Opinion We granted review in this matter to determine the sufficiency of an environmental impact report (EIR) on the proposed development of a shore-front resort hotel in the County of Santa Barbara (County). Citizens of Goleta Valley (CGV), a coalition of groups opposed to the project, challenged the EIR on the sole ground that it failed to consider a number of purportedly reasonable pro...
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Opinion We are asked to decide whether an initiative measure limiting municipal growth which conflicts with a city’s general plan amends that plan, and, if it is not an amendment, whether it is invalid. As we explain below, we conclude that the initiative measure in dispute is not a general plan amendment, and that state law which requires that zoning ordinances conform to the general plan invali...
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Opinion Petitioners were convicted in the San Francisco Municipal Court of violating Penal Code section 647, subdivision (b) (soliciting an act of prostitution). 1 Pursuant to Penal Code section 1202.6, they were ordered to undergo AIDS counseling and testing. 2 A petition for writ of mandate was filed in respondent superior court on behalf of petitioners and all oth...
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922 F.2d 536 59 USLW 2462, 24 Collier Bankr.Cas.2d 688,Bankr. L. Rep. P 73,774 In re Gus Kit FRANKLIN, a/k/a Gus Franklin, a/k/a Gus K.Franklin, Gus K. Franklin d/b/a Allied Tree Service, AlliedEnterprises, Inc., Allied Tree and Lawn Service, and SusanKaren Franklin, Debtors.Gus K. FRANKLIN, et al., Appellant,v.COMMONWEALTH FINANCIAL CORPORATION, Appellee. No. 88-6224. United Stat...
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ORDER The request for publication is GRANTED. The memorandum disposition filed in this case on October 24, 1990 is hereby designated as an opinion. OPINION In this class action, inmates of Alameda North County Jail appeal the summary judgment in their section 1983 action challenging as unconstitutional a prison regulation prohibiting them from possessing rosaries and scapulars in their cell...
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Opinion In this proceeding we review the recommendation of the Review Department of the State Bar Court that petitioner Anna Lou Kelley be publicly reproved and placed on disciplinary probation for three years on several conditions, including abstinence from the use of intoxicants and referral to the State Bar Program on Alcohol Abuse. Petitioner contends her conduct—a second conviction of drivin...
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Opinion Edward Saentz (decedent) drowned at Murderer’s Bar Rapid after falling out of a raft guided down the Middle Fork of the American River by employees of respondent commercial rafting company. The trial court entered summary judgment for the rafting company in the wrongful death action brought by decedent’s heir (appellant). 1 We affirm on the basis that the decedent expre...
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Opinion Donald E. Loehr appeals from a judgment entered following a jury trial on his complaint against respondent Great Republic *729 Insurance Company (Great Republic) alleging breach of contract and bad faith failure to pay claims arising under an insurance contract issued by respondent to appellant. Because the trial court erred as a matter of law in giving certain instru...
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This dispute arose from a transaction in which Alan Saxon, the president of Bullion Reserve of North America (“BRNA”), agreed to contribute $1.5 million to The Commercial Bank of California (“CBC”) in exchange for an ownership interest in CBC. Arnold Kopelson and Michael Miller were members of CBC’s Board of Directors. CBC was desperately in need of capital, and Kopelson approached Saxon f...
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Ronald E. Davis appeals from a March 26,1990 judgment sentencing him to thirty-four months in prison, to be followed by two years on probation. Davis alleges (1) that the trial court erred when it calculated his criminal history score by failing to count two “related” cases as one sentence under section 4A1.2(a)(2) of the United States Sentencing Guidelines; 1 and (2) that the trial court erred...
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John L. Freeman appeals from a court order revoking his probation and sentencing him to one year in prison. Freeman alleges (1) that the order was invalid under 18 U.S.C. § 3651 1 because it was issued five years and seven months after the commencement of his probation. Freeman also claims (2) that, under 18 U.S.C. § 3568, 2 he is entitled to credit for “probation” served,...
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Eduardo Bibo-Rodriguez appeals his conviction, following a conditional guilty plea, for importing approximately 682 kilograms of cocaine into the United States. Bibo-Rodriguez claims the district court erred in permitting the government to .introduce subsequent act evidence to prove knowledge under Federal Rule of Evidence 404(b). We affirm the decision of the district court. FACTS AND PROCEDUR...
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ORDER In our opinion filed December 4, 1989, cited at 890 F.2d 1082, we affirmed the sentence given by the district court, holding that a conviction under Washington’s second degree burglary statute could not serve as a basis for sentence enhancement. The district judge had relied on prior Ninth Circuit authority in United States v. Chatman, 869 F.2d 525 (9th Cir.1989) and United States v. C...
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Opinion In this original proceeding, plaintiffs and petitioners Norman G. Doyle and Richard A. Higbie, Trustee of the Higbie Family Trust, seek a writ of mandate requiring the trial court to deny the motion by defendants Jacinth Development, Inc., et al., to expunge a notice of lis pendens. In the unpublished portion of this opinion, we conclude that the trial court correctly granted the motion...
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Opinion Krikor and Victorine Astourian seek a writ of prohibition to prevent respondent superior court from conducting any further proceedings in the present action other than granting petitioner Krikor Astourian’s motion pursuant to Code of Civil Procedure section 170.6 to *723disqualify Judge Henry P. Nelson.1 Petitioners contend the motion to disqualify Judge Nelson was timely, although it was ...
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Opinion Petitioners were charged in a felony complaint with illegal disposal of hazardous waste. The magistrate conducting the preliminary hearing granted petitioners’ motion to suppress evidence and dismissed the case, but respondent superior court granted the motion of real *708 party in interest, the People of the State of California, for reinstatement of the complaint. (P...
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52 Cal.3d 719 (1990) 801 P.2d 1142 276 Cal. Rptr. 391 THE PEOPLE, Plaintiff and Respondent, v. FREDDIE LEE TAYLOR, Defendant and Appellant. Docket No. S004717. Crim. No. 25505. Supreme Court of California. December 31, 1990. *729 COUNSEL George L. Schraer, under appointment by the Supreme Court, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attor...
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*597 Opinion This is an automatic appeal from a judgment of death. (Pen. Code, § 1239, subd. (b); all further statutory references are to this code unless otherwise indicated.) Defendant Blulford Hayes, Jr., was convicted by a jury of one count each of robbery (§ 211), burglary (§ 459), and first degree murder (§ 187). The jury found as special circumstances that the murder was c...
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225 Cal. App. 3d 1240 (1990) 277 Cal. Rptr. 531 THOMAS PHILLIPS et al., Plaintiffs and Respondents, v. COUNTY OF FRESNO et al., Defendants and Appellants. Docket No. F011791. Court of Appeals of California, Fifth District. November 30, 1990. *1244 COUNSEL McCormick, Barstow, Sheppard, Wayte & Carruth, Michael G. Woods and David H. Bent for Defendants and Appellants. Bennett & Sharpe, Thom...
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*791Opinion Upon revoking probation, is a trial court required to give a statement of reasons when it decides to impose a state prison sentence where no sentence has previously been imposed? The answer is yes. (People v. Jones (1990) 224 Cal.App.3d 1309, 1312-1315 [274 Cal.Rptr. 527]; People v. Pennington (1989) 213 Cal.App.3d 173, 176-177 [261 Cal.Rptr. 476]; People v. Jackson (1987) 196 Cal.App...
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Opinion This is an automatic appeal from a judgment of death imposed under the 1978 death penalty law (Pen. Code, §§ 190.1 et seq., 1239, subd. (b)), consolidated with a petition for a writ of habeas corpus. 1 Defendant was convicted of committing lewd and lascivious acts on a person under 14 years of age (§ 288), oral copulation (§ 288a), and first degree murder (§§ 187, 189). The jury found...
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Opinion In this case we are called on to decide whether plaintiff, physically unable to file a claim against a governmental entity within 100 days of an accident (Gov. Code, former § 911.2),1 may be denied relief from the Government Code’s claim-filing requirements on the ground that an attorney, purporting to act on her behalf, filed a timely claim against a governmental entity different from the...
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Opinion We review the recommendation of the Review Department of the State Bar Court (review department) that petitioner, Joseph Edward Porter III, be suspended from the practice of law for a period of five years upon certain conditions of probation, including actual suspension for two and one-half years and until he demonstrates his competence pursuant to standard 1.4(c)(ii) of the Standards for ...
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Noel Barron-Rivera appeals his convictions for being an illegal alien in possession of a firearm and for being a felon in possession of a firearm on the ground that the government failed to prove beyond a reasonable doubt general criminal intent. Additionally, he appeals from his three concurrent eighteen-month sentences, claiming that the district judge erred in failing both to group all three...
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INTRODUCTION Frank Wilkinson and the National Committee Against Repressive Legislation (“Appellants”) appeal the district court’s order of December 28, 1988 denying their motion to compel further production of documents. Finding that this court has jurisdiction over the matter and that the district court did not abuse its discretion in denying the motion, we affirm. BACKGROUND The underlying dispu...
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Opinion The court sustained State Farm Fire and Casualty Co.’s (State Farm) general demurrers to causes of action in which Michael and Elaine Fiorito (the Fioritos) sought recovery of pre-tender defense expenses. The Fioritos seek a writ directing the court to vacate its order and to enter an order overruling the demurrers. Because we conclude the amended cross-complaint pleads State Farm...
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MEMORANDUM DECISION FACTUAL BACKGROUND Petitioner is a citizen of Nicaragua who entered the United States without inspection sometime in 1980. He came to the attention of the Immigration and Naturalization Service (INS) through the California Department of Corrections while serving a sentence for sale of cocaine. On April 2, 1990, after completing his sentence for the cocaine convict...
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Wade Loveday pleaded guilty to one count of possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d). The district court departed upward from the Sentencing Guidelines (“the guidelines”) in imposing a sentence of twenty-four months of imprisonment followed by three years of supervised release. Love-day argues on appeal that this departure was both impermissible and unreasonable....
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922 F.2d 1418 Guy Stuart BELL, on behalf of himself and all othertaxpayers, citizens and electors of the City ofKellogg, Plaintiff-Appellant,andWilliam H. Lamphere, on behalf of himself and all otherstate and federal taxpayers, Plaintiff-Appellant,v.CITY OF KELLOGG; United States Department of AgricultureDivision of Forest Service; Bunker LimitedPartnership; Charles L.A. Cox, et al.,Defenda...
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David Taketa, a Drug Enforcement Administration (“DEA”) agent, and Thomas O’Brien, an officer of the Nevada Bureau of Investigations (“NBI”), appeal their convictions for illegal wiretapping. The appellants contend that their convictions were obtained through the use of evidence seized in violation of the fourth amendment, that videotape evidence was improperly admitted, and that the district c...
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Gary D. Hatcher appeals a summary judgment in which the district court found the United States was entitled to stipulated losses resulting from Hatcher’s breach of a government-awarded scholarship agreement. United States v. Hatcher, 716 F.Supp. 447 (S.D.Cal.1989). Hatcher makes three claims on appeal, each of which lacks merit. We affirm. I Facts and Proceedings Below ...
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Opinion The question presented in this appeal is whether Treva Ann Fredericks, the former wife of Edmund Otto Fredericks, has a quasi-community property interest in Edmund’s military pension benefits resulting from his service in the United States Armed Forces from June 1949 until December 1971. This relatively simple legal issue is complicated by the facts. Treva and Edmund married and divor...
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MEMORANDUM OPINION BACKGROUND On or about May 1, 1990, the creditors of Transcon Lines (Transcon) filed an involuntary Chapter 7 petition against Transcon. *838 The debtor, Transcon, subsequently consented to an entry of an order for relief under Chapter 11. Leonard L. Gumport was appointed trustee of the bankruptcy estate. The trustee of Transcon filed an adversary...
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Opinion We review an order of respondent Workers’ Compensation Appeals Board (Board) denying reconsideration. We conclude *869 applicant timely requested rehabilitation by raising the right to rehabilitation in an application that was timely filed with the Board. We further conclude the Board erred in determining applicant is not medically eligible for vocational rehabilitati...
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I concur in the majority opinion with regard to the definition of “substance” in determining quantity enhancements under Health and Safety Code section 11370.41 The statute is clear that the weight of a controlled mixture, not the weight of the pure drug, is to be used to determine the appropriate quantity enhancement. However, I must respectfully dissent from the majority’s holding that we may en...
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Opinion Defendant Jackson Chambers Daniels, Jr., was convicted of the first degree murder of Riverside Police Officers Dennis Doty and Phil Trust. The jury found that defendant used a firearm in each murder. Defendant was also convicted of possession of cocaine, and possession of a concealable firearm by an ex-felon. With respect to each murder, the jury found three special circumsta...
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Opinion Petitioner, Bay Area Air Quality Management District (sometimes herein Bay Area) and Colusa Air Pollution Control District (sometimes herein Colusa) (collectively petitioners) seek a writ of mandate compelling the trial court to (1) sever the claims asserted against them in these consolidated proceedings and (2) grant their motions for a change of venue to San Francisco and Colusa...
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922 F.2d 1426 31 Fed. R. Evid. Serv. 1231 Hester M. ROGERS, individually and as Special Administratrixof the Estate of Clinton W. Rogers, decedent,Plaintiff-Appellant,v.RAYMARK INDUSTRIES, INC., et al., Defendants,andFibreboard Corporation and Keene Corporation, Defendants-Appellees. No. 89-15066. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 5, 1990.D...
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Plaintiff appeals the judgment in favor of defendant Postmaster General in his handicap discrimination action against the United States Postal Service brought under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701, et seq. We hold that the district court erred in refusing to accept plaintiff’s timely filed but lengthy objections to the magistrate’s findings of fact and conclusions of...
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*894Opinion Defendant, a civilian employee of the Yuba County jail, was convicted of forcible sodomy (Pen. Code, § 286, subd. (c)2 (count I), sexual battery (§ 243.4) (count II), and sodomy committed while confined in a county jail (§ 286, subd. (e)) (count VII).3 All crimes were committed against D.H., an inmate at the jail. (D.H. is hereinafter referred to by his initials or as the victim.) The ...
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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 April 1, 1986, the District Attorney of San Luis Obispo County filed an information against defendant Richard Allen Benson. As subsequently amended, the information contained the following charges and allegations. Offenses and accompanying ...
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AMENDED MEMORANDUM ' OF OPINION The matter before the Court is upon the Complaint of the plaintiff, Herbert Spilka, for a determination that his claim against the debtors is nondisehargeable under 11 U.S.C. § 523(a)(3). Trial in the matter was held on November 16, 1989 and the decision taken under submission. The following shall constitute Findings of Fact and Conclusions of Law pursuant ...
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OPINION The appellee, Potrans International Inc. (“Potrans”), sued the debtor Francis W. Madigan 1 in state court on a guaranty that was secured by a trust deed. Potrans did not seek to foreclose the trust deed in that action. Prior to bankruptcy, a default was entered against the debtor in the state court action, but no judgment was entered. After filing bankruptcy, the debtor sought to avoi...
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ORDER PARTIALLY GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION This case presents an issue of first impression under the Employee Retirement Income Security Act of 1974 (ERISA). The central question is whether an employee dental benefit plan provider may prevent beneficiaries from assigning their right to payment to dentists. Defendant insurer *305 provides dental ben...
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ORDER Plaintiff brings this action under the Federal Torts Claims Act (FTCA), 28 U.S.C. *906 §§ 1346(b), 2671, et al., for damages she sustained in December, 1987, when she drove a car through a redwood barrier on Enderts Beach Road at the Crescent Beach Overlook in Redwood National Park and plummeted 350 feet to the beach below. Plaintiff alleges that the U.S. is liable for her injuries ...
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ORDER DENYING MOTION TO REMAND This action involves a coverage dispute brought originally in state court by the insureds, Victoria and Dennis Bennett (the “Bennetts”), against: (1) their insurer, Allstate Insurance Company (“Allstate”); and (2) Hollis R. Miller (“Miller”), the Allstate sales agent who sold them the policies which are the subject of this suit. Defendants removed this actio...
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ORDER FOR PARTIAL SUMMARY JUDGMENT This action involves an insurance coverage dispute. Plaintiff Nationwide Mutual Insurance Company (“Nationwide”) seeks a declaratory judgment regarding its duty to defend and indemnify various defendants involved in two separate state court actions. The underlying actions have been referred to throughout this litigation as the “Onoshi ” suit ...
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923 F.2d 678 136 L.R.R.M. (BNA) 2217, 59 USLW 2433,117 Lab.Cas. P 10,480 INDEPENDENT UNION OF FLIGHT ATTENDANTS, Plaintiff-Appellant,v.PAN AMERICAN WORLD AIRWAYS, INC., and Pan AmericanCorporation, Defendants-Appellees. No. 89-15577. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 7, 1990.Decided Jan. 10, 1991. 1 Peter O. Shinevar, Bred...
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James Robert McQueary appeals from dismissal of his petition for a writ of habe-as corpus. I The parties agree that this court has jurisdiction, if at all, under 28 U.S.C. § 2254, which provides that federal courts “shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he...
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*920 Opinion Following his arrest for murder, defendant Manuel Hernandez Montano 1 was subjected to lengthy interrogation by two members of the Concord Police Department. Although defendant was advised of his constitutional rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], the officers had ...
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*911 ORDER A shareholder has brought a derivative suit against the directors of a corporation for allegedly trading on inside information. The corporation moves to dismiss the complaint for the shareholder’s failure to make demand, which the shareholder argues would have been futile. For the reasons below, the motion to dismiss is denied. I. BACKGROUND The defendant, Everex Systems, I...
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In part of our opinion in Partington v. Gedan, 880 F.2d 116 (9th Cir.1989) (Part-ington I), we imposed sanctions on Gedan and Chang. We did so based upon three prior cases which held that the Federal Rules of Civil Procedure, including Rule 11, were incorporated into our Circuit Rules. 9th Cir.R. 1-1 (old Rule 5). 1 See In re Mooney, 841 F.2d 1003, 1005 (...
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ORDER The memorandum disposition filed November 7, 1990, is redesignated as a per curiam opinion. OPINION Defendant/Appellant Juan Audelo-San-chez was charged in a four-count indictment with conspiracy to import and possess and importing and possessing with the intent to distribute 74.6 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1), 846, 952, 960, and 963, and 18 U.S.C. § 2....
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Manning J. Post (Post) appeals from a judgment of the district court denying his appeal from a bankruptcy court order. Post had entered into a joint venture agreement with the debtor, Sigel & Co., Ltd. (Sigel). The bankruptcy court held that the joint venture agreement was an executory contract assumable by Sigel, and the district court affirmed. A critical question we must determine is whether...
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923 F.2d 146 36 Cont.Cas.Fed. (CCH) 76,002 UNITED STATES for the Use of PIPPIN, Norman, dba: PippinGrading & Paving, Plaintiff-Appellee,v.J.R. YOUNGDALE CONSTRUCTION COMPANY, INC., Defendant,andBishop Sheridan, III, dba: Bishop III Demolition,Defendant-Appellant.UNITED STATES for the Use of PIPPIN, Norman, dba: PippinGrading & Paving, Plaintiff-Appellee,v.J.R. YOUNGDALE CONSTRU...
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William and Helen Ernzen, a railroad retiree and his wife, appeal the grant of summary judgment in favor of the government in their action for an income tax refund. The Ernzens sought refunds for their 1985 and 1986 returns, seeking to exclude from income taxes they had paid in previous years on their Tier II railroad retirement benefits. Since Tier II benefits were taxed in part to rescue the ...
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Opinion A defendant is sentenced for a crime. Imposition of sentence is suspended and he is placed on probation under certain terms and conditions. He is then committed to state prison on another case. Prison authorities notify the defendant’s probation officer of his confinement in state prison. The probation officer fails to notify the court which released *964 defendant on...
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Opinion Mission Industries (Mission) appeals from the judgment after trial by court, awarding respondent, Jovita Cardenas (Cardenas), overtime pay, a waiting-time penalty, interest, and attorney’s fees. We affirm. Facts From January 7, 1987, through April 4, 1988, Cardenas was a live-in household employee of Linda Page Katzenstein McCaughey (Page). Page was a major stockhol...
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Opinion In this action to recover property taxes paid under protest, the trial court granted the taxpayer’s motion for summary judgment. The court held that the statute of limitations set forth in Revenue and Taxation Code section 532, 1 as construed by the court in Dreyer’s Grand Ice Cream, Inc. v. County of Alameda (1986) 178 Cal.App.3d 1174 [224 Cal.Rpt...
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Opinion A jury determined appellant William Grant Odom III possessed three stolen weapons (Pen. Code, § 496, subd. (1)), possessed precursors with intent to manufacture methamphetamine (Health and Saf. Code, § 11383, subd. (c)(1)), and endangered two children (Pen. Code, § 273a, subd. (1)). On appeal, appellant argues the charges were improperly joined and the evidence was insufficient to suppo...
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*1043 Opinion Appellant, Keith Edward Woods, appeals from a judgment imposed on a jury verdict finding him guilty of second degree murder, but finding not true the firearm use allegation; and of two counts of attempted murder while personally using a firearm. Because we find it was error to deny the instruction on the lesser related offense of assault with a deadly weapon, we con...
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Opinion Statement of the Case Roger Connelly Owen appeals from the judgment on a jury verdict convicting him of involuntary manslaughter (Pen. Code, § 192, subd. (b)), 1 a lesser included offense of murder, for the shooting death of Danny Yoakum. The court denied probation and sentenced him to the mitigated term of two years plus two years for the gun use (§ 12022.5, subd. (a)), and imposed...
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Opinion I. Introduction A jury convicted defendant David Edwin Mason of the murders of Joan Picard, Arthur Jennings, Antoinette Brown, Dorothy Lang, and Boyd Johnson, each in the first degree. (Pen. Code, § 187.) 1 As special circumstances, the jury found that defendant had murdered Picard, Jennings, Brown, and Lang while engaged in the commission of robbery (§ 190.2, subd...
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Opinion Appellants Carl H. Amstone and Doris W. Am-stone filed an insurance bad faith lawsuit against numerous insurance companies and insurance agents, collectively hereinafter referred to as “respondents.” 1 The lawsuit claimed respondents wrongfully refused to pay insurance benefits to appellants for personal property lost in a fire. In a summary judgment motion respondents ...
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Echeverria-Hernandez petitions for review of the decision of the Board of Immigration Appeals (Board) denying her request for asylum and withholding of depor *690 tation. The Board had jurisdiction pursuant to 8 C.F.R. §§ 3.1(b)(2), 242.21 (1990). We have jurisdiction over this timely filed petition pursuant to 8 U.S.C. § 1105a. We deny the petition. I Echeverria-Hernande...
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922 F.2d 1438 24 Collier Bankr.Cas.2d 864, 18 Fed.R.Serv.3d 712,21 Bankr.Ct.Dec. 340, Bankr. L. Rep. P 73,798 In re GRANTHAM BROTHERS, a partnership, Debtor.VALLEY NATIONAL BANK OF ARIZONA; John R. Anderson, Trustee;Edward Quinif; Robert Riter; HaroldChristopherson, Creditors-Appellees,v.William N. NEEDLER, Attorney at Law, Claimant-Appellant. No. 88-1931. United States Court o...
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Rostad and Rostad Corporation (R & R), a Montana Subchapter S corporation, brought suit against Investment Management and Research, Inc. (IM & R), a Florida Corporation, alleging broker fraud, negligence, breach of contract, breach of an implied covenant of good faith and fair dealing, and breach of fiduciary duty in violation of both state and federal securities laws. Pursuant to an arbitration a...
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Opinion By information filed December 4, 1987, appellant Robert Guzman and three others were charged with conspiracy to sell cocaine and possession for sale and sale of ten kilograms of cocaine. It was further alleged the amount of cocaine involved exceeded 10 pounds in weight, requiring an additional 5 years’ enhanced sentence, and that Guzman was armed with a firearm, mandating an additional ...
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Opinion Petitioners (the People) contend the superior court abused its discretion in refusing to set an execution date after the California *903Supreme Court affirmed the judgment of death entered against real party in interest (defendant). We shall conclude that under Penal Code section 1193 the fixing of a date for imposition of the death penalty cannot be made contingent on the disposition of a...
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OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT This is an action under 42 U.S.C. § 1983 by indigent citizens of Alameda County, California. Plaintiffs allege that defendants have adopted and implemented a state constitutional limitation on real property taxes, Cal. Const, art. XIII A (1978) (“Proposition 13”), and are using that limitation in assessing taxpayers, in violation of plainti...
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OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS I. This is a petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 by *752 James Richard Odie, a prisoner in state custody. Petitioner is under sentence of death. Petitioner is represented by counsel appointed to him by this court pursuant to N.D.Cal.Local R. 296, ¶ 4. The petition alleges seven cla...
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*1121 Opinion This is an employee’s petition for writ of review. The Workers’ Compensation Appeals Board (Board) reversed the workers’ compensation judge (WCJ). The issue is whether a laborer who was injured falling off a church roof while working on a church renovation project for $5 an hour was properly excluded from compensation coverage as a recipient of “aid or sustenance only” (Lab. Cod...
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MEMORANDUM OPINION This matter was heard on November 21, 1990, on plaintiff’s application for appointment of a temporary receiver. Erica Grubb, Esq., appeared on behalf of New York Life Insurance Co. (“New York Life”). Despite notification by plaintiff, no appearance was entered on behalf of any defendant. For the reasons discussed below, the court approved plaintiffs application for appo...
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498 U.S. 1053 111 S.Ct. 768 112 L.Ed.2d 787 Thaddaeus Louis TURNER, petitioner,v.CALIFORNIA No. 90-6047 Supreme Court of the United States January 14, 1991 The petition for a writ of certiorari is denied. Justice MARSHALL, dissenting. 1 Petitioner was convicted in California state court of first-degree murder and sentenced to death. O...
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923 F.2d 710 136 L.R.R.M. (BNA) 2291, 117 Lab.Cas. P 10,499,21 Bankr.Ct.Dec. 452, Bankr. L. Rep. P 73,795 In re The CAREAU GROUP, dba Julius Goldman's Egg City, Debtor.The CAREAU GROUP, dba Julius Goldman's Egg City, Plaintiff-Appellee,v.JUAN DE LA CRUZ FARM WORKERS PENSION FUND; Robert F.Kennedy Farm Workers Medical Plan, Defendants-Appellants. No. 89-56040. United States Court...
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923 F.2d 713 CITY OF SEATTLE, Petitioner,Puget Sound Power and Light Company, Petitioner-Intervenor,v.FEDERAL ENERGY REGULATORY COMMISSION, Respondent,Public Utility Dist., No. 1 of Pend Oreille County,Washington; Bonneville Power Administration,Respondent-Intervenor. No. 89-70486. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 3, 1990.Decided Jan. 15, 199...
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George P. Bowie and William L. Gregory brought this diversity action in California against Home and New England Insurance Companies, insurers of a corporation for which they were directors, for failure to defend and indemnify them with respect to *706 an action against them and others for alleged errors and omissions committed as officers and directors of another company. Finding t...
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923 F.2d 698 UNITED STATES of America, Plaintiff-Appellee,v.313.34 ACRES OF LAND, MORE OR LESS, SITUATED IN JEFFERSONCOUNTY, STATE OF WASHINGTON, etc., et al., Defendant,Jeffrey Jay Kamp; Jill Jay Kamp, Defendants-Appellants. No. 89-35529. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 8, 1990.Decided Jan. 15, 1991. Duncan C. Wilson, Sampson Wil...
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Opinion Michael Edward Berry was convicted of perjury following a court trial. (Pen. Code, § 118.)1 He appeals, raising the single contention the evidence of his false testimony during a family court proceeding should have been excluded from evidence in his perjury trial because of the failure of the family court to warn Berry at that time of his rights against compelled self-incrimination as esta...
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delivered the opinion of the Court. Petitioner Board of Education of Oklahoma City (Board) sought dissolution of a decree entered by the District Court imposing a school desegregation plan. The District Court granted relief over the objection of respondents Robert L. Dowell et ah, black students and their parents. The Court of Appeals for the Tenth Circuit reversed, holding that the Board would be...
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delivered the opinion of the Court. Federal Rule of Appellate Procedure 4(a)(2) provides that a “notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry and on the day thereof.” In this case, petitioner filed its notice of appeal after the District Court announced from the bench that it intended t...
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*1168 Opinion A supplemental petition filed October 3, 1989, alleged the minor, Andre P., “on or about October 2, 1989, did willfully and unlawfully resist, delay and/or obstruct a public officer of the City of Bakersfield, to wit: Officer L. Mills in the discharge and/or the attempt to discharge a duty of his office; thereby violating Section 148 of the Penal Code . . ." 1 The supplemental...
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Opinion In this case, we decide that the crime of kidnapping for ransom, extortion or reward (Pen. Code, § 209, subd. (a)) involves a substantial risk of death to the victim and therefore supports a conviction of *1217 second degree murder on a felony-murder theory. 1 We also resolve numerous other issues concerning defendant’s conviction of second degree murder an...
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*971 Opinion The Review Department of the State Bar Court (review department) recommends that petitioner Michael J. Scott be disbarred from the practice of law in California. While a municipal court judge in Santa Barbara County, petitioner pled guilty to possession of illegal drugs and resigned his judicial post as a condition of his plea bargain. The surrounding facts included ...
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Opinion On October 2, 1987, Gary Urbaniak (hereafter Urbaniak), filed a first amended complaint in the Superior Court of San Francisco against Frederic H. Newton, M.D., Frederick H. Newton, M.D., a Medical Corporation (hereafter Dr. Newton), John J. Párente, Paul D. Karasoff, and Allianz Insurance Co. (hereafter collectively respondents) seeking damages for dissemination of a medical repo...
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Patricia A. Preston, La Juan M. Mitchell, and Leonard Jamar Preston (collectively, *732 “the heirs”), heirs of Leonard Preston, Jr. (“Preston”), appeal from a judgment in favor of the United States in a wrongful death action brought under the Federal Torts Claims Act, 28 U.S.C. §§ 1346(b), 2671, et seq. The heirs’ sole contention on appeal is that the district court erred in denyin...
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Appellants William and Ruby Young (“taxpayers”) appeal the Tax Court order disallowing the allocation of 75% of the tax losses of Riverfront Associates, Ltd. (“Riverfront”), to one partner, Spokane Hotel Associates, Ltd. (“Spokane”) on grounds that the allocation lacked economic substance. On appeal, taxpayers contend it was clear error for the Tax Court to find that the allocation lacked econo...
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Reginald Loera appeals from his conviction for assault resulting in serious bodily injury, in violation of 18 U.S.C. § 113(f). Loera contends that there was insufficient evidence to establish the required element of willfulness. He further contends that evidence of his prior convictions was improperly admitted into evidence. We disagree and affirm. I. Facts On October 18, 198...
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Vincent P. Shutt, a citizen of the state of Washington, brought suit against Sandoz Crop Protection Corporation (Sandoz), a New York corporation, and-Zoecon Corporation (Zoecon), a Delaware corporation, alleging that he had been discharged by the defendants in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and the Washington law against discrimination, Wash....
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Opinion Surfside Colony, Ltd. (Colony) appeals from a judgment of the superior court upholding the decision of the California Coastal Commission (the Commission) requiring Colony to grant public access to its private beach in return for permission to build a revetment. 1 Colony presents two arguments. First, it contends the superior court should have used the “independent judgment test” inste...
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Opinion Plaintiffs appeal from orders (1) quashing service of summons on defendants Charles M. Berg, Berg & Allen, Inc., and Clifton Boxx (Berg respondents), and (2) dismissing the action against defendants A.W. Ellis, Wells Fargo Bank, N.A., First Pacific Bank, and Imperial Savings Association (bank respondents) for delay in prosecution. 1 The principal issue presented is whet...
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Opinion Plaintiffs James J. Bernard and James J. Bernard, Inc., doing business as La Barca Restaurant, appeal from a judgment entered upon the granting of a motion for summary judgment in favor of defendant, Hartford Fire Insurance Company. For reasons set forth in the unpublished portion of the opinion, we affirm the judgment. We publish the following portion of the opinion to emphasize that...
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Opinion The issue on appeal is whether the trial court erred in granting respondent Kiumars Bakshandeh’s motion for summary judgment based upon his immunity from liability under the provisions of the Good Samaritan laws. We conclude factual issues remain to be resolved regarding that issue and reverse the order granting summary judgment. Facts On April 27, 1987 at Cedars Sinai Medical Cente...
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Opinion This dispute between two insurance companies is a product of the uncertainty in the insurance world which preceded the Supreme Court’s decision in Prudential-LMI Com. Insurance v. Superior Court (1990) 51 Cal.3d 674 [274 Cal.Rptr. 387, 798 P.2d 1230]. In Prudential, the court held that in first party insurance cases involving progressive continuing...
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Opinion Following the February 2, 1990, trial at which appellant father Manuel A. was represented by counsel (the mother’s default having previously been entered), the court declared Christopher A. free from parental custody and control, as had been petitioned for by respondent San Diego County Department of Social Services (DSS). On this appeal Manuel challenges the judgment, while Christopher...
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OPINION Appellant Franchise Tax Board of the State of California (“Board”) appeals the trial court’s decision discharging the tax liability of debtors Jack B. King and Paula H. King (“debtors”) for tax years 1978— 1981. Both sides agree that the appeal *384 turns on the definition of the term “assessed” in Bankruptcy Code § 507(a)(7)(A)(ii). We reverse. FACTS AND PR...
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OPINION Judgment creditor appeals from a declaratory judgment of the bankruptcy court holding that community property is not liable for a nondischargeable debt because judgment creditor failed to serve the “innocent spouse” as a defendant in nondis-chargeability proceeding. No determination was made that the debt was a community claim. We remand for such a determination. It is not necessary to ...
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498 U.S. 233 (1991) IN RE BERGER No. ____. Supreme Court of the United States. Decided January 14, 1991. ON MOTION FOR ATTORNEY'S FEES. PER CURIAM. Petitioner Vivian Berger, appointed to represent a capital defendant in proceedings before this Court pursuant to this *234 Court's Rule 39.7,[*] has filed a motion requesting compensation for such services well in excess of the statutory maximum of $...
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Hector Ramos challenges the constitutionality of his conviction for two narcotics offenses and his sentences on those counts. Because we find that Ramos’ constitutional rights were not violated by the search of his apartment or by imposition of his sentences, we affirm the district court. I In the early morning hours of September 7, 1988, officers from the Torrance Police Department o...
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dissenting: Respectfully, I dissent. I “It is now clear that the central purpose of Rule 11 is to deter baseless filings in the District Court and thus, consistent with the Rule Enabling Act’s grant of authority, streamline the administration and procedure of the federal courts.” Cooter & Gell v. Hartmarx Corp., — U.S. --, 110 S.Ct. 2447, 2454 (1990); see also Pavelic & LeFlore v. Marvel Entertain...
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923 F.2d 747w UNITED STATES of America, Plaintiff-Appellee,v.Susana SANCHEZ-ROBLES, Defendant-Appellant. No. 90-50018. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 8, 1990.Decided Jan. 17, 1991. 1 NOTE: THE COURT HAS WITHDRAWN THIS OPINION. SEE 927 F.2d 1070. ...
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On October 7, 1986, Myra Kopf (“Kopf”), as President of the Board of Education of the San Francisco Unified School District (“Board”), filed a defamation action against Appellant Anton Jungherr (“Jungherr”) in California Superior Court. That action arose out of statements Jungherr made at a public meeting of the Board about Kopf’s handling of board business. Jungherr was granted a motion for summ...
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923 F.2d 746 59 USLW 2525, 1991 Copr.L.Dec. P 26,677,17 U.S.P.Q.2d 1575 Herb NEFT; D.R.H., Inc., a corporation; Karl JamesAssociates, Inc., a corporation; Karl JamesProductions, Inc., a corporation; GaryGray, Plaintiffs,andPelletier, Supancic & Gill; Franklin Pelletier; RonaldSupancic; Keith C. Gill, Appellants,v.VIDMARK, INC., a corporation; Baker & Taylor Video, acorporat...
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Opinion Appellant Robert Scott Brown was charged with murder (Pen. Code, 1 § 187; count 1), conspiracy to commit robbery (§§ 182/211; count 2) and robbery (§211; count 3) all as the result of the robbery and killing of Thomas Owen. He was also charged with personally using a knife in the commission of each offense (§ 12022, subd. (b)). The jury was unable to agree on the m...
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James Ray Thomas is a federal prisoner who appeals the district court’s denial of his petition for writ of habeas corpus. He claims the right to immediate release on the ground that his federal sentence has been fully served. At the time of his sentencing on federal charges August 4, 1964, Thomas was a state prisoner. He was transferred to federal authorities pursuant to a writ of habe-as corpus a...
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Opinion Alan Bailey appeals from a judgment denying his petition for a writ of mandamus. Bailey, a police officer with respondent City of National City, was terminated based on his alleged violations of the city’s police department rules and regulations. 2 Bailey petitioned the superior court for a writ of mandamus, contending the action of the city council in upholding his termination was an...
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Opinion In this case appellant Classic M. Tucker (Classic) appeals that portion of a trial court judgment determining the trial court *1252 did not have jurisdiction over the military retirement benefits of respondent Fletcher S. Tucker (Fletcher). The trial court found Fletcher did not consent to the trial court’s jurisdiction over his military retirement. Further the trial court found Fle...
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Opinion Defendant Debra Ann Williams appeals an order revoking her probation and sentencing her to a state prison term. We affirm and hold the trial court possessed jurisdiction to revoke Williams’s probation despite her additional status as a parolee. *1316Facts The Santa Barbara County prosecutor charged Williams with eight counts of residential burglary. (Pen. Code,1 § 459.) On March 6, 1987, W...
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923 F.2d 1378w 59 USLW 2449, 1991-1 Trade Cases 69,297,RICO Bus.Disp.Guide 7662 LANCASTER COMMUNITY HOSPITAL, Plaintiff-Appellant,v.ANTELOPE VALLEY HOSPITAL DISTRICT, Defendant-Appellee.LANCASTER COMMUNITY HOSPITAL, Plaintiff-counter-defendant-Appellant,v.ANTELOPE VALLEY MEDICAL GROUP, INC., Defendant-Appellee,andAntelope Valley Hospital District,Defendant-counter-claim-3rd party-plainti...
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ORDER The certification order and dissent filed on December 17, 1990 is redesignated a published order. ORDER 1. This Court certifies that resolution by the Arizona Supreme Court of the following question of law set forth in Paragraph 2 will be determinative of a significant substantial question of law in the above-captioned ease. 2. Under Arizona law, would a person who gratuitously undertook to ...
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Opinion In this consolidated appeal, David W. Yancey (hereinafter, the purchaser) appeals from two orders in two separate actions: one sustaining a demurrer to his complaint without leave to amend; and the other authorizing the redemption of certain real property by respondents Lloyd Lewis and A1 Wilkins (the redemptioners). We dismiss in part and reverse in part. Factual and Procedu...
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Opinion Defendant, Basilio Hernandez, pleaded nolo contendere to two counts of sending a false bomb (Pen. Code, § 148.1, subd. (d)) and one count of filing a false report with the fire department of the planting of a bomb (Pen. Code, § 148.1, subd. (a)). 1 He was granted probation for a three-year term and ordered to spend one hundred eighty days in county jail. Defendant and his codefendant ...
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Opinion I. Larry Ferguson appeals from a judgment of the superior court denying his petition for a writ of mandate directed to respondent Writers Guild of America, west, Inc. Ferguson, a screenwriter, was engaged by Paramount Pictures Corporation to write a screenplay for a feature-length theatrical motion picture entitled “Beverly Hills Cop II.” When the picture was completed, ...
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Opinion James W. Stratton appeals a child support judgment, claiming Code of Civil Procedure section 640.1, subdivision (c) violates article VI, section 21 of the California Constitution. We disagree and affirm.1 *1394I. After a Revised Uniform Reciprocal Enforcement of Support Act petition2 was served on Stratton, the matter proceeded to a contested hearing. Despite Stratton’s demand that the mat...
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Opinion Appellant James Childs appeals from judgments entered in two separate cases, superior court case No. 37477 and case No. 37589, consolidated for disposition on appeal. In case No. 37477, his appeal is from the judgment entered on a jury verdict finding him guilty of three counts of grand theft by false pretenses (Pen. Code, § 487, subd. I) 1 and one count of petty theft. In case No...
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Opinion Petitioners Yellow Cab Cooperative, Inc. (Yellow) and Golden Eagle Insurance Co. challenge a decision by the Workers’ Compensation Appeals Board (Board) holding that Yellow was the employer, for workers’ compensation purposes, of applicant Richard Edwinson, a cabdriver. We have concluded that the Board did not err. I. Background Prior to 1976, the drivers of Yellow cabs ...
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924 F.2d 167 SYNCOM CAPITAL CORPORATION, a District of Columbiacorporation, Plaintiff-counter-defendant-Appellee,v.Booker T. WADE, Jr., Defendant-counter-claimant-Appellant. No. 88-15659. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 7, 1990.Decided Jan. 22, 1991. Booker T. Wade, Jr., Los Angeles, Cal., in pro per. Stephen G. Montoya and S...
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Defendants-appellants Arias and Gonzalez appeal the district court’s order denying their motions to suppress evidence obtained from searches of a Chrysler automobile and a house. Arias also appeals the portion of the district court’s order holding that there was probable cause for law enforcement officers to arrest him. We affirm. 1 I In early 1987, in the course of a money la...
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Hughes Bagley appeals the district court’s order granting judgment on the pleadings to all defendants in his civil rights action filed pursuant to 42 U.S.C. §§ 1983 and 1985 and Bivens v. Six Unnamed Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Bagley challenges only the district court’s rulings that his § 1983 claim was barred by the statute of limitations a...
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Eric D. Boudette appeals the dismissal of his action for failure to serve the complaint within 120 days after its filing, as required by Federal Rules of Civil Procedure 4©. Boudette contends that the district court abused its discretion in dismissing his action because he could not show good cause for ■ his failure to comply' with Rule 4(j). We affirm. This is the second time that Boudette has...
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924 F.2d 805 136 L.R.R.M. (BNA) 2273, 59 USLW 2479,117 Lab.Cas. P 10,513,32 Fed. R. Evid. Serv. 140 John L. DEAN, Plaintiff-Appellant,v.TRANS WORLD AIRLINES, INC., and Air Line Pilots Association,International, Defendants-Appellees.John L. DEAN, Plaintiff-Appellee,v.TRANS WORLD AIRLINES, INC., and Air Line Pilots Association,International, Defendants-Appellants. Nos. 85-4384, 85-4399 ...
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Opinion Alberto S., a minor charged in juvenile court with rape (Pen. Code, § 261, subd. (2)), 1 appeals from a judgment of wardship entered upon a finding by the court that he had committed the lesser offense of sexual battery (Pen. Code, § 243.4). He contends the judgment is invalid because he was given no notice and he did not consent to the court’s finding of an offense whi...
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Opinion Robert F. Ducu appeals from the judgment of convictions for the commission of multiple sex crimes. He was convicted of one count of rape and one count of oral copulation against Ms. M., and three counts of rape, two counts of oral copulation and one count of penetration by a foreign object against Ms. F. The jury also found true allegations that appellant used a deadly weapon with respe...
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Opinion In this case, plaintiff Bette Petersen appeals from a judgment dismissing her fraud and breach of fiduciary duty claims against Securities Settlement Corporation (SSC), which acted as a clearing agent for a series of stock transactions in which she and her late husband engaged. The judgment was entered following an order granting SSC’s motion for summary judgment. Because we ...
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Opinion Plaintiff Steven Stanton, a police officer employed by defendant City of West Sacramento (the City) appeals from the denial of his petition for a writ of mandamus by the Yolo County Superior Court. Plaintiff, who had been issued a written reprimand by the City, contends that the West Sacramento Police Department’s (the Department) appeals procedure denied him due process. We shall...
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MEMORANDUM DECISION RE: PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND DEFENDANT’S MOTION TO DISMISS The Roberti-Roos Assault Weapons Control Act became effective in California on January 1, 1990. Neither plaintiffs, defendant, nor any of the amicus curiae provided the Court with a copy of the Act. However, the Act is contained in California Penal Code sections 12275 to 12290. 1 ...
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MEMORANDUM AND ORDER Plaintiff’s suit is bottomed on a contract with Centennial Savings & Loan (“Centennial”) that guaranteed him one year’s salary if Centennial terminated him without cause. The amount of that salary was $105,000. Based upon that contract, plaintiff sues the Federal Deposit Insurance Corporation in its corporate capacity (“FDIC Corporate”) and the Federal Deposit Insuran...
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498 U.S. 1061 111 S.Ct. 776 112 L.Ed.2d 839 Oscar DIAZ-ALBERTINI, petitioner,v.UNITED STATES No. 90-552 Supreme Court of the United States January 22, 1991 On petition for writ of certiorari to the United States Court of Appeals for the Tenth Circuit. The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the U...
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delivered the opinion of the Court. † This case requires the Court to decide what standards apply when a party seeks to avoid compliance with a subpoena duces tecum issued in connection with a grand jury investigation. I Since 1986, a federal grand jury sitting in the Eastern District of Virginia has been investigating allegations of interstate transportation of obscene materials. In early 1988, t...
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Ronald DeLorme injured his back repeatedly during and after his employment as an interstate bus driver. He appeals from the district court’s grant of summary judgment in favor of the Secretary, Department of Health and Human Services (“the Secretary”) rejecting his application for disability benefits. We reverse and remand. I. FACTS DeLorme was a bus driver employed by Greyhound when ...
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We are asked to decide whether prosecution and conviction of a former Internal Revenue Service employee, for willfully disclosing to the public information about a certain federal income tax return, violates his first amendment right to freedom of expression. *858I Lawrence Richey was an Internal Revenue Service (“IRS”) agent for approximately twenty-five years. In 1970, he audited Alan McDonald, ...
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Plaintiff/appellant Earl Winebrenner (“Winebrenner”) filed an action against the United States and Elmer Kletke (“Kletke”), a District Director of the Internal Revenue Service (“IRS”), seeking a quiet title order and the removal of tax liens on their property pursuant to 28 U.S.C. § 2410 and 26 U.S.C. § 7426 and general damages. On July 27, 1988, the district court dismissed the wrongful levy a...
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The Secretary of Health and Human Services denied Lavonne Baxter’s application for disability insurance benefits. The district court affirmed the decision of the Secretary, and Baxter filed this timely appeal. We have jurisdiction under 28 U.S.C. § 1291 (1982). We reverse. BACKGROUND Except for an unsuccessful three-month attempt to resume working in 1985-86, Lavonne Baxter has been u...
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ORDER The memorandum disposition filed December 7, 1990, is redesignated as an opinion authored by Judge Hall. OPINION Abraham and Marion Rand (“the Rands”) appeal the district court’s grant of summary judgment in favor of Louis Sullivan, M.D., Secretary of Health and Human Services. We have jurisdiction under 28 U.S.C. § 1291. We affirm. I The Rands are the sole stockholders in Institu...
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On January 4, 1989, Ira Marvin Dickey was indicted on three counts of violating federal currency laws: possession of an engraved plate for the printing of counterfeit $20 bills (18 U.S.C. § 477), printing of counterfeit $20 bills (18 U.S.C. § 471), and possession of three counterfeit $100 bills (18 U.S.C. § 472). On February 27, 1989, Dickey pleaded guilty to the second count of the indictment; th...
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ORDER This case was taken en banc on July 19, 1990 and submitted on briefs without oral argument on September 27, 1990. The court now being fully advised, we vacate that part of the three-judge court’s opinion which addresses whether the government need have “reasoned grounds” to investigate a particular individual. See United States v. Luttrell, 889 F.2d 806, 812-14 (9th Cir.1989). Specifically, ...
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ORDER GRANTING PLAINTIFFS’ MOTIONS FOR SUMMARY JUDGMENT On December 17, 1990, the Court heard oral argument on cross-motions for summary judgment in each of the above-captioned cases. The Court HEREBY GRANTS plaintiffs’ motions for summary judgment and DENIES defendants’ motions for summary judgment. The cross-motions for summary judgment made in these two actions have been consolida...
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Opinion This case involves a facial attack against an initiative measure enacted by the electorate of the City of San Clemente purporting to amend the city’s general plan. The lower court invalidated the measure on several grounds and issued a peremptory writ of mandate restraining its implementation. Intervener and appellant Citizens for Sensible Growth and Traffic Control appeals the lo...
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Opinion Defendant was adjudged a ward of the juvenile court based on a finding that he had violated Penal Code 1 sections 422 (terrorist threats) and 417, subdivision (a)(2) (drawing or exhibiting firearm in a rude, angry *1521 or threatening manner). Defendant’s only contention on appeal is that section 422 is inapplicable to the confrontation at issue because it was not shown in the trial...
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226 Cal.App.3d 1511 (1991) 277 Cal. Rptr. 546 DANIEL WU et al., Plaintiffs and Respondents, v. INTERSTATE CONSOLIDATED INDUSTRIES et al., Defendants and Appellants. Docket No. G008167. Court of Appeals of California, Fourth District, Division Three. January 22, 1991. *1513 COUNSEL Fierstein & Sturman, Mark J. Linder, Richard C. Moore, Bess Blank and B.J. Adelson for Defendants and Appellants. Tre...
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Opinion In 1987, respondent Napa County approved a use permit allowing real party in interest Whitbread of California, Inc., to construct a winery and related facilities on property near Soda Canyon Road in Napa County. Before the permit expired, Whitbread applied for an extension, which the county granted. Appellants Fletcher C. Benton and Joseph A. Schreuder unsuccessfully petitioned th...
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Opinion Real party in interest Whitbread of California, Inc., sought Napa County approval for a winery on its property. Respondents Napa County and its board of supervisors adopted a mitigated negative declaration 1 pursuant to the California Environmental Quality Act (CEQA). Appellants Fletcher and Roberta Benton and others sought a writ of administrative mandate to compel th...
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Opinion McMillin Construction Company, Inc., (McMillin) appeals the judgment entered on a general verdict in favor of Arthur and Mary Becker (Becker) after the trial court denied McMillin’s motion for separate trial on a statute of limitations defense (Code Civ. Proc., §§ 597, 337.15). 1 The trial judge found the applicable limitations period, 10 years, had been tolled by the p...
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OPINION Appellant Robin A. Parkhill (“Parkhill”) appeals from the trial court’s summary judgment finding that a note signed by debtor-appellee Irene Vazquez Nusor (“Nu-sor”) was not a negotiable instrument and avoiding Parkhill’s lien on real property. Parkhill argues that the note was a negotiable instrument under the California Uniform Commercial Code (“Commercial Code”), that she is a ...
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*162 OPINION AND ORDER DENYING DEFENDANTS’ PETITION TO COMPEL ARBITRATION AND DENYING DEFENDANTS’ MOTION TO STAY ALL PROCEEDINGS PENDING ARBITRATION INTRODUCTION Defendants’ Petition to Compel Arbitration and Motion to Stay All Proceedings Pending Arbitration were scheduled to be heard on December 13, 1990. After a review of the briefs, this court considered it appropriate t...
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OPINION AND AMENDED ORDER GRANTING DEPENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT INTRODUCTION Cross Motions for Summary Judgment were scheduled to be heard on April 26, 1990. After a review of the briefs, this court considered it appropriate to submit *859 the motion on the pleadings pursuant to Local Rule 220-1, and ...
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Plaintiffs appeal the district court’s grant of summary judgment in favor of defendant United States and dismissal of Plaintiffs’ complaint. Plaintiffs’ claim was based on the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1988). The district court granted summary judgment on the ground that the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a) (1988), barre...
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Louis J. Capovilla appeals the Railroad Retirement Board’s dismissal of his application for a total and permanent disability annuity pursuant to the Railroad Retirement Act, 45 U.S.C. § 231a. We affirm the Board’s decision. FACTS AND PROCEEDINGS Capovilla injured his back while working for the Southern Pacific Railroad in 1984. He has not worked since that date. On August 20, 1986 he reached ...
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In this consolidated criminal appeal, several codefendants appeal their convictions of various crimes relating to a drug conspiracy. We affirm the conviction, but vacate a part of the sentence. STATEMENT OF FACTS On December 1, 1988, two weeks after a cocaine overdose, appellant Richard Leroy Popp, (“Popp”), then eighteen years old, entered Plaza Hall, a twenty-eight-day inpatient drug trea...
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924 F.2d 170 UNITED STATES of America, Plaintiff-Appellee,v.Gary JEROME, Defendant-Appellant. No. 87-1386. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 13, 1990.Decided Jan. 24, 1991. George J. Cotsirilos, San Francisco, Cal., for defendant-appellant. L. Anthony White, Asst. U.S. Atty., Reno, Nev., for plaintiff-appellee. Appeal fro...
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226 Cal.App.3d 1525 (1991) 277 Cal. Rptr. 567 THE PEOPLE, Plaintiff and Respondent, v. PAULA JEANETTE PRANCE, Defendant and Appellant. Docket No. A047551. Court of Appeals of California, First District, Division Three. January 23, 1991. *1526 COUNSEL Sandra K. Hansen, under appointment by the Court of Appeal, for Defendant and Appellant. *1527 John K. Van de Kamp, Attorney General, Richard B. Igl...
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Opinion Section 7031 of the Business and Professions Code* 1 states that one may not sue in a California court to recover “compensation” for “any act or contract” that requires a California contractor’s license, unless one “alleges and proves” he was duly licensed at all times during the *992performance. We granted review to decide two questions. The first is whether section 7031 permits an unlic...
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Opinion The issue before us is whether the California Fair Employment and Housing Commission abused its discretion in finding the County of Fresno failed to reasonably accommodate the *1545 physical handicaps of two employees in violation of Government Code section 12940, subdivision (a). The Facts and Proceedings On behalf of Danyse Brooks (Brooks) and Camille Capo...
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OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITH LEAVE TO AMEND INTRODUCTION The Immigration and Naturalization Service (“INS”) has allegedly filed a detainer against petitioner, a federal prisoner subject to deportation as a felon. Petitioner seeks to compel the INS either to remove the detainer or conduct a deportation hearing. DISCUSSION I. Writ of Habeas Corpus ...
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924 F.2d 1438 WASHINGTON CRAB PRODUCERS, INC.; Metro Trollers, Inc.;Tacoma Poggie Club; Seattle Poggie Club, a non profitassociation; Washington Trollers Association; PacificTrollers Association; Puget Sound Gillnetters, a non profitWashington corporation, Plaintiffs-Appellants,v.Robert E. MOSBACHER, Secretary of Commerce, United States;State of Washington, acting through its Directorof t...
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After a trial before the Honorable J. Lawrence Irving, District Judge, a jury convicted Jaime Lares-Valdez of possessing with intent to distribute and importing approximately 218 grams of heroin in violation of 21 U.S.C. §§ 841(a)(1), 952 & 960. Lares-Valdez challenges a pretrial ruling by the Honorable Judith N. Keep denying a motion to suppress his statements. He claims drug enforcement agent...
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Opinion Introduction Nowack & Associates, Inc. (Nowack) appeals from a judgment of the Alameda County Superior Court in favor of Santa Clara Land Title Company (Santa Clara) following entry of summary judgment on Santa Clara’s complaint to quiet title to certain property owned by it in Alameda County and against Nowack’s cross-complaint seeking enforcement of a judgment of forecl...
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Opinion By their petition filed in this action, appellants, the William S. Hart Union High School District and the Saugus Union School District (referred to hereinafter collectively as the school districts), seek to stop the development of land which lies within the County of Los Angeles because they believe they have insufficient school facilities to accommodate the projected number of s...
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*1584 Opinion After a jury trial, defendant Dewayne Antoine Robinson was convicted of battery with serious bodily injury (Pen. Code, §§ 242, 243, subd. (d)), 1 misdemeanor assault (§ 240), assault with a deadly weapon (§ 245, subd. (a)(1)), dissuading a witness from testifying (§ 136.1, subd. (c)), conspiracy to violate section 136.1, subdivision (c) (§ 182), and conspiracy to obstruct just...
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Opinion In this case we hold a temporary teacher’s reemployment rights under Education Code section 44918 cannot be defeated by an unsatisfactory evaluation after he or she has served for 75 percent of the school year. The Albany Unified School District (District) appeals a judgment issuing a peremptory writ of mandate ordering it to rehire Carol Kalamaras as a probationary certificated emplo...
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REVISED ORDER RE SUMMARY JUDGMENT 1 INTRODUCTION The plaintiffs-counterdefendants in these consolidated actions (hereinafter “Keat-ing”) are directors and/or officers of Lincoln Savings and Loan Association (“Lincoln”) and/or American Continental Corporation (“ACC”). Each is currently named as a defendant in, among others, Sarah B. Shields, et al. v. Charles H. Keating,...
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Opinion The Director of the Department of Industrial Relations (Director), as Administrator of the Uninsured Employers’ Fund (UEF), seeks review of a decision by the Workers’ Compensation Appeals Board (Board) subjecting the UEF to liability for injuries which applicant Abdias Albiter sustained while working on an almond ranch owned by defendant Lars Johnson. The Board found that applican...
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MEMORANDUM AND ORDER DENYING DEFENDANTS’ MOTION TO DISMISS INTRODUCTION Defendants’ Motion to Dismiss1 was scheduled to be heard on November 8, 1990. After a review of the briefs, this court considered it appropriate to submit the motion on the pleadings pursuant to Local Rule 220-1, and now DENIES the motion. *159BACKGROUND Plaintiffs invested in a real estate limited partnership which did not p...
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MEMORANDUM OF DECISION AND ORDER The Los Angeles Times and the Wall Street Journal move to unseal an exhibit to Northrop’s plea agreement that was filed under seal. 1 As part of the public, written plea agreement, the government agreed “not to prosecute, file criminal charges or seek indictments in the investigations listed on Exhibit B filed under seal with this Court.” ...
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Marsh appeals from the district court’s denial of his petition for a writ of habeas corpus. He argues that the Parole Commission (Commission) had the authority to grant him a presumptive parole date, and that this parole date remains valid despite the government’s determination that its actions regarding Marsh’s parole date were in error. The district court had jurisdiction pursuant to 28 U.S.C. ...
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David Robert White appeals from an order of the district court revoking his probation and sentencing him to a three-year term of incarceration. We vacate White’s sentence and remand his case to the district court for resentencing. BACKGROUND On June 7, 1988, appellant David White pleaded guilty to conspiracy to convert government property in violation of 18 U.S.C. §§ 641, 371 (1988). The pres...
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925 F.2d 280 Howard L. GRUVER, Lois H. Gruver, Timberland Associates,Inc., Plaintiffs-Appellants,v.MIDAS INTERNATIONAL CORPORATION, Defendant-Appellee.E. Patrick HALPIN, Plaintiff-Appellant,v.MIDAS INTERNATIONAL CORPORATION, an Illinois Corporation,Defendant-Appellee. Nos. 89-35680, 89-35749. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 6, 1990.Decided Ja...
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Tabacca was convicted for interfering with a flight attendant under 49 U.S.C.App. § 1472®. Tabacca asserts the District Court erred both in denying his Motions for Judgment of Acquittal and in refusing to give a requested jury instruction. Tabacca also argues that 49 U.S.C.App. § 1472(j) is unconstitutionally vague. Finally, Tabacca asserts the District Court abused its discretion by dismissing...
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924 F.2d 1449 Julius L. FINKELSTEIN, Plaintiff-Appellee,v.Louis P. BERGNA, Defendant-Appellant. No. 87-2943. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 14, 1988.Decided Aug. 2, 1989.Opinion Withdrawn Jan. 29, 1991.Opinion Filed Jan. 29, 1991. Craig M. Brown, San Jose, Cal., for defendant-appellant. Alan B. Exelrod, San Francisco, Cal., ...
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Opinion Introduction These consolidated appeals present the novel issue of whether a forfeiture proceeding must be dismissed when the People fail to file a petition of forfeiture within 30 days after a claim is filed as required by Health and Safety Code section 11488.4, subdivision (j). 1 We conclude the People’s failure to comply with section 11488.4, subdivision (j)’s 3...
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226 Cal.App.3d 1663 (1991) 277 Cal. Rptr. 663 CALIFORNIA FINANCIAL RESPONSIBILITY COMPANY, Plaintiff and Appellant, v. A.A. PIERCE, as Director, etc., Defendant and Respondent. Docket No. D011722. Court of Appeals of California, Fourth District, Division One. January 28, 1991. *1664 COUNSEL Michael Schaefer for Plaintiff and Appellant. John K. Van de Kamp and Daniel E. Lungren, Attorneys General,...
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Opinion Lori Lemay Drummond (plaintiff) appeals from an order (judgment) of dismissal in favor of Fumie Murata (defendant) based on plaintiff’s failure to bring the action to trial within five years. We affirm the order. Factual and Procedural Statement On February 14, 1984, the complaint for personal injury and property damages arising from a motor vehicle accident was filed. The complai...
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Opinion Following convictions by jury of first degree murder with robbery and financial-gain special circumstances, attempted murder, and burglary, all while armed, John Francis Maier (Maier) was sentenced to state prison for life without possibility of parole for the murder, consecutive to the life sentence for murder he is now serving in New York, and an additional 10 years for the attempted ...
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Opinion The Case Plaintiff Diane Testa alleges in her complaint causes of action in general negligence and strict products liability against defendants Monte Vista Development Corporation (petitioner) and Willey Tile Company (real party in interest). Monte Vista cross-complained, naming Willey Tile Company, Bedrosian Builders Supply and Vitromex as cross-defendants. In its cross-comp...
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*1693 Opinion Appeal Statement of the Case Appellant Nicholas Bizieff was convicted after a jury trial of three counts of robbery (Pen. Code, § 211). * 1 In addition, the allegations that he previously had been convicted of a serious felony (§§ 667, subd. (a), 1192.7, subd. (c)(1), (8)) and had served a prior separate prison term (§ 667.5, subd. (b)) were found to be true. Throughout ...
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Opinion Lawrence Gregory Pahl was convicted of sexual battery (Pen. Code, § 243.4, subd. (a)); 1 he was sentenced to six years’ imprisonment. He contends that the evidence was insufficient to support the verdict and that instructional and sentencing error occurred. We find no error and affirm. I. The Facts Appellant introduced himself to the victim, Kelly E., ...
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Appellant Henry Garcia, Jr. was indicted by a federal grand jury for various offenses relating to his participation in drug trafficking activities. Garcia was tried and convicted of a total of thirteen counts at three separate trials. He now appeals the convictions obtained at his first two trials. Garcia first argues that the district court erred in denying his motion to appoint substitute cou...
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Alejandro Sigueiros-Lopez, a.k.a. Armando “Alex” Martinez-Cortez, appeals his sentence on the grounds that the Sentencing Commission violated its congressional mandate in formulating the Sentencing Guidelines and that the General Accounting Office study of the Guidelines’ potential impact was a sham. 1 We affirm. I. PACTS On September 6, 1989, appellant Armando Martinez-Cor...
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ORDER The memorandum filed on October 16, 1990, 916 F.2d 716, is redesignated as an authored opinion by Judge Canby. OPINION Wesley Lloyd Nakagawa appeals from a judgment of the district court sentencing him to fourteen years in prison for drug, firearm and tax offenses. He alleges various errors under the federal sentencing guidelines. We affirm the judgment. I Federal and state agents...
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James H. White, an inmate at the Federal Correctional Institution in Phoenix, Arizona, appeals the district court’s denial of his habeas corpus petition. White challenges the decision of the United States Parole Commission (Commission) to revoke his parole. He contends that the denial of his request to confront adverse witnesses at his parole revocation hearing denied him due process in violation...
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OVERVIEW Robin E. Persons and her four-year-old son Timothy appeal from the entry of a judgment dismissing their action against Balboa Naval Hospital and the United States Navy. The complaint alleges that as a result of the hospital’s negligence, Petty Officer Kelly Persons (Robin’s husband and Timothy’s father) committed suicide. Appellants seek damages for the serviceman’s wrongful death...
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924 F.2d 175 Bob GEARY, Robert Silvestri; Dennis Mark; Melissa Gundrun;Wayne Johnson; David Soule; Max Woods; Peter Johnson;Robert Gebert; Election Action; Terence Faulkner; SudiTrippet, Plaintiffs-Appellees,v.Louise RENNE, San Francisco City Attorney; Diane Feinstein;Jay Patterson; San Francisco Board of Supervisors; Cityand County of San Francisco; San Francisco Registrar ofVoter...
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Opinion In this case we hold that the rule that a criminal defendant must be advised that commitment following a plea of not guilty by reason of insanity (NGI) may exceed the maximum possible term of imprisonment for the underlying crime is retroactive. If, at the end of the maximum term, an unadvised defendant remains a danger to others, the proper procedure is to seek civil commitment p...
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Opinion This case presents a question on which courts of appeal have divided in interpreting the penalty provisions of Labor Code 1 section 5814 after the Supreme Court’s decision in Gallamore v. Workers’ Comp. Appeals Bd. (1979) 23 Cal.3d 815 [153 Cal.Rptr. 590, 591 P.2d 1242]. We will hold, in annulling and remanding the decision of the Workers’ Com...
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227 Cal. App. 3d 26 (1991) 277 Cal. Rptr. 687 THE PEOPLE, Plaintiff and Respondent, v. JEFFREY ADAM KEENAN, Defendant and Appellant. Docket No. A046309. Court of Appeals of California, First District, Division Two. January 29, 1991. *27 COUNSEL Robert H. Flannery, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, and Jeremy Friedlander, ...
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Opinion Plaintiff/appellant Lisa Mounts appeals a summary judgment in favor of defendant/respondent Neil Uyeda in appellant’s personal injury action. She contends the trial court erred in ruling her action was barred by the statute of limitations. We granted appellant’s petition for rehearing to consider issues raised in part II. Facts and Procedural Background On January 31, 19...
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Opinion In this juvenile dependency proceeding (Wei. & Inst. Code, § 300)1, the Los Angeles County Department of Children’s Services (County) appeals “from the November 27, 1989 order dismissing the Matter of Larissa W. (No. JD 50605) and from the November 28, 1989 denial of the application for rehearing of said matter.” Because the Matter of Larissa W. (No. JD50605) was actually dismissed on Nov...
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Opinion An information charged defendant with 41 counts of lewd and lascivious acts upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)) and also alleged a prior conviction of Penal Code section 288. (Pen. Code, § 667.51, subd. (a).) The court granted defendant’s motion to set aside the information pursuant to Penal Code section 995 as to counts 10, 11, 15, 19, 22, 29, 30, 32, 3...
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924 F.2d 928 36 Cont.Cas.Fed. (CCH) 76,012 UNITED STATES of America, Plaintiff-Appellee,v.ROCKWELL INTERNATIONAL CORPORATION, Defendant-Appellant. No. 89-50120. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 10, 1990.Decided Jan. 31, 1991. James F. Neal, Neal & Harwell, Nashville, Tenn., Thomas E. Holliday, Gibson, Dunn & Crutcher, Lo...
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924 F.2d 955 59 USLW 2543, 24 Collier Bankr.Cas.2d 1147,Bankr. L. Rep. P 73,806 UNSECURED CREDITORS' COMMITTEE; Leon A. Uziel, Creditors-Appellants,v.PUGET SOUND PLYWOOD, INC., fdba Soundbilt Plywood Sales, Debtor,andPuget Sound Plywood, Inc., Debtor-Appellee. No. 90-35296. United States Court of Appeals,Ninth Circuit. Submitted November 8, 1990.*Decided Jan. 31, 1991. ...
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Mary and Dennis Rivera appeal the dismissal of their claims against the United States, brought under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) & 2674 (1988), and the first and fifth amendments to the Constitution. They alleged that Mary Rivera’s supervisor at the Air Force base where she was employed retaliated against her for notifying a superior about the supervisor’s late ar...
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*1388 Opinion An amended petition filed on January 14, 1991, alleged Thanh Q. had violated Welfare and Institutions Code section 871, escape from a county juvenile facility. 1 At the jurisdictional hearing, the court found the allegations true and subsequently committed him to the California Youth Authority. I On February 27, 1990, Thanh was committed to Los Pinos Conservation Camp, an ...
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Karen Boyd appeals her sentence under the United States Sentencing Guidelines following her guilty plea to four counts of bank robbery, in violation of 18 U.S.C. § 2113(a). Boyd claims that the sentencing court incorrectly enhanced the offense level both by erroneously finding that a road flare constituted a dangerous weapon, and by improperly aggregating the losses sustained in the four bank rob...
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925 F.2d 305 Kenneth A. BIANCHI, Petitioner-Appellant,v.James BLODGETT, Superintendent, Washington StatePenitentiary; Department of Corrections of theState of Washington; Department ofCorrections of the State ofCalifornia,Respondents-Appellees. No. 89-35816. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 5, 1990.Decided Jan. 31, 1991. Paul J. L...
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Opinion Lisa Millsap was injured when her car was struck by an automobile driven by Christopher Pence. As relevant, Millsap brought an action against Pence and against North Country Express (NCE) and Federal Express Corporation (FEC) on the theory that Pence was an employee of NCE acting in the course and scope of his employment at the time of the accident, and that FEC had contracted with NCE ...
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Opinion Gustavo Molinares Aguirre pleaded guilty to 15 felony charges arising out of a nighttime assault on a young man and woman on the beach in Orange County in 1981. He was sentenced to 18 years in prison. On appeal he raises a single issue, contending that the grand jury indictment returned against him in 1985 could not toll the statute of limitations because the grand jury has no pow...
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Opinion Appellant Kenneth Donald Methey appeals from the denial of his motion to suppress in San Diego County Superior Court No. CRE99755. Alternatively he urges his trial counsel was incompetent. We conclude the trial court committed no error and that his defense was not prejudiced by any incompetence. Facts The facts which serve as the basis for Methey’s conviction are not dis...
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924 F.2d 1492 32 ERC 1783, 21 Envtl. L. Rep. 20,568 James M. LOVE; Dave Frohnmayer, Atty Gen'l, for the Stateof Oregon, on behalf of the people of the State ofOregon, Tualatin Valley Fruit Marketing,Inc., Plaintiffs,andNorthwest Food Processors Assoc., Plaintiff-Appellee,v.William K. REILLY, Administrator, Environmental ProtectionAgency, Defendant-Appellant. No. 89-35230. United S...
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Jovito Banzon defended this civil rights action on the basis of qualified immunity. He appeals the order which denied the defense, and we reverse. At the time of the incident giving rise to this action, Banzon was the officer in charge of the commissary at the Puget Sound Naval Station (“Puget Sound”) in Bremerton, Washington. Plaintiff Hiroko Havekost worked as a grocery bagger in the commissa...
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924 F.2d 961 RAILWAY LABOR EXECUTIVES' ASSOCIATION; InternationalAssociation of Machinists and Aerospace Workers, DistrictLodge No. 19; and United Transportation Union, GeneralCommittee of Adjustment GO-887, Petitioners,v.INTERSTATE COMMERCE COMMISSION; and United States ofAmerica, Respondents. No. 89-70134. United States Court of Appeals,Ninth Circuit. Argued and Submitted May ...
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924 F.2d 1484 59 USLW 2510, 1991-1 Trade Cases 69,315 MORGAN, STRAND, WHEELER & BIGGS d/b/a Tucson Radiology, anArizona partnership; West Coast Radiology, Inc.; Karl H.Morgan, M.D., an individual; Richard D. Strand, M.D., anindividual; and Lee E. Taylor, M.D., an individual,Plaintiffs-Appellants,v.RADIOLOGY, LTD., an Arizona partnership; HCA HealthServices of Arizona, Inc., an A...
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Cameron E. Berry was a pathologist employed by the Veterans Administration (“VA”). He alleges defendants conspired to violate his First and Fifth Amendment rights by (1) suspending his clinical privileges, (2) conducting a clandestine “peer review” of his pathology reports, and (3) driving Berry from his job. The district court granted summary judgment for defendants, finding Berry’s claims were ...
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227 Cal.App.3d 134 (1991) 277 Cal. Rptr. 887 BARBARA BUCHAN, Plaintiff and Respondent, v. UNITED STATES CYCLING FEDERATION, INC., Defendant and Appellant. Docket No. B037872. Court of Appeals of California, Second District, Division Seven. January 30, 1991. *136 COUNSEL Thomas & Price, Allan I. Shatkin and Everett S. Hinchcliffe for Defendant and Appellant. James P. Carr, Kelly, Herlihy &...
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*342 Opinion Sherry A. appeals the declaration of dependency of her one-year-old son, Corey, and his removal from her physical custody. She contends her due process rights were violated when the trial court admitted the social study and its attached reports at the dispositional hearing, without the authors being available for cross-examination. She argues if Welfare and Institutions Code 2 ...
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Opinion Elizabeth Jeff (Jeff) appeals from a judgment in the amount of $2,500 in favor of the County of Inyo and the County of Inyo on behalf of Ann Marie Jeff (her child), a minor. 1 *489 Facts and Procedural History The plaintiff filed a complaint in the Inyo County Superior Court seeking reimbursement for child support for the minor Ann Marie Jeff. After serv...
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Opinion Recall proponent Steve Hartman sought a writ of mandate to compel Patricia Kenyon, City Clerk of the City of Santa Cruz (hereafter Clerk), to certify that three recall petitions he submitted contained the requisite number of signatures of eligible registered voters. When Hartman filed his petitions with the Clerk for examination, each contained more than the number of signatures require...
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Opinion Defendant, cross-complainant and appellant Associated International Insurance Company (Associated) appeals the judgment entered after the trial court granted summary judgment in favor of Reynaldo Ledesma (Ledesma), Span, Inc. (Span) and Behavioral Systems Southwest, Inc. (BSSI) in this declaratory relief action. Defendant, cross-complainant and appellant Ledesma has cross-appealed...
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Opinion Daniel Gordon Marshall was convicted by a jury of residential burglary. In a separate court trial, the court found to be true three prior felony convictions alleged pursuant to Penal Code section 667. 1 In this appeal Marshall argues for reversal of one of the prior convictions, contending: (1) after he was honorably discharged from the California Youth Authority (CYA),...
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Opinion Ten homeless general assistance recipients appeal from the trial court’s denial of their petition for writ of mandate. Appellants challenge the adequacy of Alameda County’s general assistance grant level. Specifically, they ask that the county be ordered to conduct a factual study of the cost of subsistence for Alameda County indigents and to enact a new general assistance ordinance bas...
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Opinion Growth Equities Corporation (GEC) appeals from judgments of dismissal following successful demurrers by Michael M. Edelstein (No. A048008) and Ezekiel Freed (No. A048009) to GEC’s third amended complaints seeking recovery upon notes executed by Freed and Edelstein. The issues raised in each case are the same and the appeals have been consolidated. GEC [[]] * contends that the court er...
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Opinion In this original proceeding petitioners, Sierra-Bay Federal Land Bank Association, R. Lewis Ward, William S. Bensley, and Western Farm Credit Bank, seek a peremptory writ of mandate directing the respondent superior court to vacate its decision overruling their demurrer to real party in interest, Dan S. Ciabattari’s, first amended complaint and to enter a new order granting the de...
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William McKinney, a prisoner in Nevada state prison in Carson City, filed a pro se civil rights complaint in United States District Court under 42 U.S.C. § 1983. McKinney, a non-smoker, alleged that he is almost constantly exposed to secondary cigarette smoke, also known as environmental tobacco smoke (ETS), because he is housed with a heavy smoker and there are no restrictions on smoking in th...
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ORDER BACKGROUND This is an action brought by Ehmcke Sheet Metal Works (“Ehmcke”), a subcontractor on a federal government construction project, against American Pacific Roofing Company, Inc. (“APR”), the prime contractor on the project and against APR’s surety on the contract, Wausau Insurance Companies (“Wausau”). In its original complaint in this action, filed August 24, 1989, Ehmcke sued APR ...
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ORDER The memorandum disposition filed on September 6, 1990, 914 F.2d 262, is amended to add Part II B and redesignated an opinion authored by Judge O’Seannlain. The petition for rehearing is otherwise denied. OPINION We affirm the district court’s order of summary judgment in favor of the Secretary of Health and Human Services. I Appellant Maria Curry underwent corrective single-artery...
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925 F.2d 1133 UNITED STATES of America, Plaintiff-Appellant,v.Stephen Donn ARGO, Defendant-Appellee. No. 89-30043. United States Court of Appeals,Ninth Circuit. Submitted Nov. 1, 1989.*Decided Feb. 4, 1991. Andrew Levchuk, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellant. Steven T. Wax, Federal Public Defender, Portland, Or., for defendant-appellee....
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Stella Menatos appeals from the district court's grant of summary judgment in favor of the United States in its action to collect defaulted National Direct Student Loans (“NDSLs”). Menatos contends the action is time-barred under federal law. In the alternative, Menatos claims the action is barred by the doctrine of laches. We affirm. FACTS AND PROCEEDINGS Between February 1, 1966, an...
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925 F.2d 1136 59 USLW 2544, Fed. Sec. L. Rep. P 95,786,RICO Bus.Disp.Guide 7701 THREE VALLEYS MUNICIPAL WATER DISTRICT; City of Lawndale;City of San Marino, City of Palmdale; CommunityRedevelopment Agency of the City of Palmdale, CommunityRedevelopment Agency of the City of Maywood, Plaintiffs-Appellees,v.E.F. HUTTON & COMPANY, INC., David J. Lane; Todd Melillo,Defendants-Appellant...
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I. Factual and Procedural Background Robert Haphey (Haphey) and Carl Bon-dietti (Bondietti) were employed by the Linn County Sheriffs Office (Linn County) as deputy sheriffs. Both were laid off in May 1986. Haphey and Bondietti applied for recall by submitting letters to the Sheriff of Linn County (Sheriff) in October 1986. Haphey and Bondietti submitted applications for n...
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Appellant law firm Estes & Hoyt appeals the bankruptcy court’s ruling, affirmed by *322 the Bankruptcy Appellate Panel of the Ninth Circuit, that it is not entitled to certain attorney’s fees it charged pursuant to its role as counsel for the trustee of a Chapter 7 debtor’s estate. Appellee Kathryn Crake, fifty percent general partner in the debtor, objects to these fees, as does a...
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This case is about a securities broker-dealer that went bankrupt and some disappointed investors. We consider whether these investors are protected by the Securities Investor Protection Act (SIPA), 15 U.S.C. §§ 78aaa-78III, and are thus entitled to payments from the insurance fund maintained by the Securities Investor Protection Corporation (SIPC). I Brentwood Securities, Inc. was a securities bro...
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Criminal charges were brought against Bruno Sinigaglio, a federal employee, for tax code violations. He argues his conviction must be reversed because his right to juror information under 26 U.S.C. § 6103(h)(5) was impaired. We find the government did not substantially comply with the statute, we reverse and remand for a new trial. We reject his other claims of error. I Sinigaglio was a human...
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Marion Calvin Tucker, a former federal prisoner, appeals pro se the district court’s summary judgment in favor of defendants Peter M. Carlson, Warden of the Federal Corrections Institution in Phoenix, Arizona (“FCI”), and Thomas E. Taylor, Administrative Systems Manager at FCI. Tucker brought this action alleging that the defendants violated his civil rights by failing to credit the time he spe...
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924 F.2d 175 21 Envtl. L. Rep. 20,573 GREENPEACE USA, a California non-profit corporation;Stichting Greenpeace Council, sometimes known as GreenpeaceInternational, a not-for-profit stichting incorporated inthe Netherlands; Institute for the Advancement of HawaiianAffairs, a Hawaii non-profit corporation; World Council ofIndigenous Peoples--Hawaii, a Hawaii non-profit corporation;and Walt...
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Opinion On October 23, 1987, appellant was convicted by jury of attempted murder (Pen. Code, §§ 664, 187) 1 and one count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). On October 27, 1987, a bifurcated jury trial was held concerning enhancement allegations and the following allegations were found to be true: In conjunction with count I appellant was...
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Opinion The Review Department of the State Bar Court of California has recommended that petitioner Kerry L. Sorensen, who was admitted to practice in 1974, be suspended from law practice for one year, which term would be stayed during two years of supervised probation. Recommended conditions of probation include 30 days’ actual suspension. Petitioner claims the review department’s recommendat...
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Opinion Phillip Eugene Wardlow pleaded guilty to four counts of child molesting (Pen. Code, § 288, subd. (a)). 1 On appeal, he challenges conditions imposed on his probation involving a waiver of Fourth Amendment rights; a prohibition against associating with two of his brothers; and orders of restitution involving the victims’ medical and psychological treatment. We find merit to Wardlow’s c...
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Opinion The Center for Feeling Therapy and its therapists were sued for medical malpractice and on various intentional tort theories. A dispute arose between the Center and some of its therapists on the one hand, and their insurance carriers on the other, concerning the attorneys selected as independent counsel after the insurers reserved their rights regarding the claims for intentional ...
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*514Opinion Lester Kline, the 74-year old plaintiff in a personal injury action against real parties in interests seeks a writ of mandate to prevent the trial court from denying him a preferential trial date (Code Civ. Proc., § 36, subd. (a)) 1 and ordering the action submitted to compulsory arbitration. (§ 1141.11.) We have notified the parties a peremptory writ may issue in the first instance (...
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*628 OPINION ON CONDITIONS ON EMPLOYMENT OF FINANCIAL ADVISORS I.INTRODUCTION The motions before the Court raise the issue of what conditions should be placed on the employment of investment advisors for the debtor and the committee of unsecured creditors in this case. The Court holds that, while both the' debtor and the creditors committee may employ investment advisor...
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I dissent. Our courts have long enforced insurance contracts for intentional and criminal acts causing injury. Rather than read Insurance Code section 533 (hereafter section 533) as precluding insurance for any willful act of the insured causing injury, such as intentionally speeding or running a red light, this court has interpreted the provision as only prohibiting enforcement of contracts insur...
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Lloyd Eugene Butcher (Butcher) appeals from his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Butcher claims that (1) the district erred in denying his motion to suppress evidence obtained as a result of his unlawful arrest; (2) the district court abused its discretion in permitting the government to offer evidence of illegal narcotics found in his...
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In 1981, Allen contributed $22,500 of borrowed funds, together with $2,500 of his own money, to a charitable organization. He and his wife then claimed the entire $25,000 as a charitable contribution on their 1981 tax return pursuant to section 170(a) of the Internal Revenue Code (Code), 26 U.S.C. § 170(a). The Commissioner of Internal Revenue (Commissioner) issued a notice of deficiency, denyi...
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The Secretary of Health and Human Services denied Katherine K. Banta’s application for disability benefits. She sought review of that decision in the district court, but she filed her action more than sixty days after the Appeals Council denied her request for review of an adverse determination by an Administrative Law Judge. The district court dismissed her action as untimely. After denial of ...
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Georgia Williams-Seaife appeals the district court’s summary dismissal of her employment discrimination claim against the Department of Defense (DOD) for failure to name as a defendant, or serve notice on, the Secretary of Defense within the limitation period. In light of the United States Supreme Court decision in Irwin v. Veteran’s Administration, — U.S. —, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990),...
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924 F.2d 1520 59 USLW 2515 Michael COOPER, Husband, in his Own Capacity and as Parentof Abram and Adam Cooper, minors; Lidia Cooper, Wife, inher Own Capacity and as Parent of Abram Cooper and AdamCooper, Minors, Plaintiffs-Appellees,v.Clarence DUPNIK, Sheriff, Pima County; Tom Taylor, anEmployee of Pima County Sheriff's Department;Weaver Barkman, an Employee of PimaCounty Sheriff's Depar...
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Opinion I. Overview The instant action follows the settlement of an underlying action filed by plaintiff and appellant Diamond Heights Homeowners Association (Association), a California corporation, against Diamond Heights Associates (Diamond Heights), the developer of a condominium project, and Alpha Land Company (Alpha), the general contractor, among other defendants, seeki...
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227 Cal.App.3d 584 (1991) 278 Cal. Rptr. 52 HOWARD JACOBS, Plaintiff and Appellant, v. FIRE INSURANCE EXCHANGE, Defendant and Respondent. Docket No. A048070. Court of Appeals of California, First District, Division Three. February 6, 1991. *587 COUNSEL Walkup, Shelby, Bastian, Melodia, Kelly, Echeverria & Link and Ronald H. Wecht for Plaintiff and Appellant. Kincaid, Gianunzio, Caudle & H...
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ORDER On September 19, 1990, this Court heard plaintiff Linda Brown’s motion for summary judgment and the government’s cross-motion for partial summary judgment. David M. Kirsch appeared for plaintiff. Thomas F. Carlucci appeared for the defendant. For all the following reasons, the Court DENIES plaintiff’s motion for summary judgment and GRANTS defendant’s cross-motion for summary judgme...
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A jury convicted Hortensia Navarro-Garcia of offenses in connection with the importation of marijuana. Navarro-Garcia moved for an evidentiary hearing and a new trial on the ground that the jury had improperly considered extrinsic evidence; she attached to the motion an affidavit from her attorney stating that following the return of the verdict the jury foreman had informed defense counsel that ...
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925 F.2d 1160 John Robert DEMOS, Jr., Petitioner,v.UNITED STATES DISTRICT COURT FOR the EASTERN DISTRICT OFWASHINGTON, Respondent. (Two Cases).John Robert DEMOS, Jr., Petitioner,v.STATE COURT OF APPEALS FOR the STATE OF WASHINGTON; SupremeCourt of the State of California, Respondents.John Robert DEMOS, Jr., Petitioner,v.SUPREME COURT OF the STATE OF WASHINGTON, et al., Respondents.John Rober...
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Janka and Newman appeal from a decision by the National Transportation Safety Board (Board). They argue that the Board lacked jurisdiction to review an administrative law judge’s (AU) decision. They further argue that the Board’s decision was arbitrary, capricious, and not supported by substantial evidence. Finally, they allege errors in Board procedures. We have jurisdiction over this timely pet...
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New El Rey Sausage Co. (“New El Rey”) petitions for review of an order of the Chief Administrative Hearing Officer (“CAHO”) affirming an Administrative Law Judge’s (“AU”) decision that New El Rey knowingly continued to employ unauthorized aliens in violation of the Immigration Reform and Control Act of 1986 (“IRCA”), Pub.L. No. 99-603, 100 Stat. 3359 (1986). We have jurisdiction under 8 U.S.C. ...
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Opinion California Insurance Guarantee Association (CIGA) appeals from the judgment of dismissal entered after the trial court sustained Argonaut Insurance Company’s (Argonaut) demurrer without leave to amend. CIGA sought a declaration that it owed no duty to reimburse Argonaut for amounts Argonaut paid in workers’ compensation benefits to an injured employee. CIGA became involved in the ...
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Julio Mena appeals from the conviction and sentence imposed upon him after a bench trial on stipulated facts. The court convicted him of possession of cocaine with intent to distribute and conspiracy in violation of 21 U.S.C. §§ 841(a)(1) and 846. He challenges the sufficiency of the evidence underlying his conviction, but his principal argument on appeal is that the district court should have gr...
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Opinion John D. appeals the order on a six-month permanency plan review hearing. The order continued his children’s status as dependent children and appointed Mary Ellen Staab as their guardian. We reverse the order appointing Mrs. Staab as guardian because the social study report supporting guardianship was statutorily deficient. (Welf. & Inst. Code,1 § 366.25, subd. (e).) Facts The three minor ...
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Opinion A jury convicted appellant Kevin O’Neal Craig on one count of assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). By its verdict the jury acquitted Craig on a count of attempted murder. Before trial Craig admitted a prior conviction for armed robbery alleged in the information as a five-year sentence enhancement. (Pen...
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Opinion We review the recommendation of the Review Department of the State Bar Court (review department) that petitioner, Gene Paul Borré, be suspended from the practice of law in California for five years, that execution of the order be stayed, and that petitioner be placed on probation for five years upon conditions including actual suspension from practice for two years. Petitioner contends th...
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Opinion We review the recommendation of the State Bar that petitioner Barry B. Martin be disciplined for several instances of professional misconduct. The misconduct included mishandling five matters during a four-year period. In view of the purpose of professional discipline, we conclude the recommendation is appropriate. We therefore suspend petitioner from the practice of law for five years, st...
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227 Cal.App.3d 653 (1991) 278 Cal. Rptr. 123 THE PEOPLE, Plaintiff and Respondent, v. DUKE KIMBERLY BOLTER, Defendant and Appellant. Docket No. G007980. Court of Appeals of California, Fourth District, Division Three. February 7, 1991. *655 COUNSEL Stephen S. Buckley, under apointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Richard B. Iglehart, ...
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Plaintiffs-appellants appeal a district court order denying their motion for a permanent injunction staying state court proceedings filed against them by defendants-appellees. The appellants contend that they are entitled to injunctive relief under the relitigation exception of the Anti-Injunction Act, 28 U.S.C. § 2283, and that the district court abused its discretion in denying that relief. W...
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Ignacio Sanchez-Mata appeals from convictions for conspiracy to possess with intent to distribute narcotics, and possession with intent to distribute narcotics. There is insufficient evidence to connect Sanchez-Mata to the drug conspiracy. Similarly, there is insufficient evidence that Sanchez-Mata had dominion or control over the drugs seized. We reverse both convictions. Standard of Revi...
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OPINION The bankruptcy court concluded that certain malpractice claims, though time-barred under the applicable statute of limitations, should be considered in determining whether the aggregate unsecured debts exceed the $100,000.00 limitation imposed by 11 U.S.C. § 109(e). The court dismissed the case and debtor appealed. We reverse and remand. I. FACTS Debtor was a professiona...
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OPINION Havas Leasing Company (Havas) appeals from the court’s order avoiding Havas’ lien on the debtors’ pick-up truck, on the basis that the lien was a nonpossessory, nonpur-chase-money security interest in tools of the trade of the debtor and that the lien impaired an exemption to which the debtors would have been entitled under § 522(b). We affirm. FACTS On February 13,1989 ...
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ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT Procedural History On August 17, 1990, plaintiff American Casualty Company of Reading, Pennsylvania (“American Casualty”) filed its Motion for Summary Judgment on two claims in its action for declaratory relief, contending that insurance coverage does not exist for officers and directors against whom claims a...
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Arriaga-Barrientos petitions for review of the decision of the Board of Immigration Appeals (Board) denying his request for asylum and withholding of deportation. The Board had jurisdiction pursuant to 8 C.F.R. §§ 3.1(b)(2), 242.21 (1990). We have jurisdiction over this timely-filed petition pursuant to 8 U.S.C. § 1105a. We deny the petition. I Arriaga-Barrientos is a native and citiz...
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*447MEMORANDUM OF DECISION GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT “Hired to be fired.” That was the plight of five long-time employees on the wrong end of the sale of one company to another. The employees, plaintiffs in this case, received termination letters the day after they were “transferred” to their new company. The federal statutes regulating employee retirement and severance pla...
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Opinion Appellants contend the trial court should have set off against the damage award an amount stipulated in a settlement agreement, that there was insufficient evidence to support the jury’s verdict, and that the trial court gave an erroneous jury instruction. The judgment is reversed and remanded for a hearing on the issue of setoff. In all other respects, the judgment is affirm...
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756 F. Supp. 1267 (1991) WESTPAC AUDIOTEXT, INC., et al., Plaintiffs, v. G. Mitchell WILKS, et al., Defendants. No. C-89-2962 FMS. United States District Court, N.D. California. January 30, 1991. Earl Nicholas Selby, Palo Alto, Cal., William Bennett Turner, Donna Brorby, Beth S. Brinkman, Turner & Brorby, San Francisco, Cal., for plaintiffs. Alan D. Croll, Karen Randall, Mark A. Wooster, Wyma...
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Houtchens appeals from his conviction of violating 18 U.S.C. § 1343 and 18 U.S.C. § 2314. Houtchens contends that the district judge erred by trying him in absentia, that he was denied effective assistance of counsel, and that the district judge failed to make required findings at sentencing. The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction over this timely appeal ...
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925 F.2d 1181 UNITED STATES of America, Plaintiff-Appellee,v.Michael Duane HUNT, Defendant-Appellant. No. 88-3222. United States Court of Appeals,Ninth Circuit. Feb. 14, 1991. Lawrence Matasar, Hoffman, Matasar & Glaeser, Portland, Or., for defendant-appellant. Stephen F. Peifer, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee. Before WRIGHT, TANG...
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927 F.2d 440 1991 Copr.L.Dec. P 26,693, 17 U.S.P.Q.2d 1874 Norbert PASILLAS, Plaintiff-Appellant,v.McDONALD'S CORPORATION, McDonald's Operator Association ofSouthern California, Inc., Davis, Johnson, Moguland Colombatto, Inc.; Bob Hickson;Steve Neill; Defendants-Appellees. No. 89-55602. United States Court of Appeals,Ninth Circuit. Argued and Submitted Sept. 14, 1990.Decided ...
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926 F.2d 829 17 U.S.P.Q.2d 1907 AMERICAN INTERNATIONAL GROUP, INC., Plaintiff-Appellant,v.AMERICAN INTERNATIONAL BANK, Defendant-Appellee. No. 88-5558. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 7, 1988.Decided Feb. 14, 1991. Stephen B. Judlowe, Hopgood, Calimafde, Kalil, Blaustein & Judlowe, New York City, for plaintiff-appellant. ...
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Fuentes pled guilty to conspiracy to possess approximately 4.6 kilograms of methamphetamine with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court departed downward from the sentencing guideline range and sentenced Fuentes to 10 years in custody and 5 years of supervised release. Fuentes now challenges his sentence, arguing that the judge incorrectly app...
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Defendants Brown and' Tobey appeal their jury convictions for conspiracy to suppress competition for billboard sites in violation of the Sherman Anti-Trust Act, 15 U.S.C. § 1 (1988). We affirm. FACTS Appellant Brown is senior vice president for public affairs in a division of Gannett Company, Inc. that includes fifteen separate billboard advertising companies. One of these companies i...
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with whom PREGERSON, ALARCON, and FERNANDEZ, Circuit Judges, join, dissenting: The majority acknowledges the indispensability in our criminal justice system of the government’s burden of proving guilt beyond a reasonable doubt. That high standard of proof is required by the due process clause of the Constitution for reasons articulated by the Supreme Court in In re Winship: The accused during a cr...
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Doe Two, Doe Three, and Doe Four appeal from the district court’s partial denial of their motions to quash grand jury subpoenas and for the return of property seized, pursuant to Fed.R.Crim.P. 41(e). We affirm. *851 FACTUAL AND PROCEDURAL HISTORY On December 11, 1987, as part of a grand jury investigation into money laundering and drug trafficking, federal agents sought warra...
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John Owen Rapae and Darrell Paul Bertrand were convicted of various federal narcotics offenses. They appeal the district court’s denial of their motions to suppress evidence, its application of the United States Sentencing Guidelines, and its holding that the Guidelines are constitutional. We affirm. FACTS AND PROCEEDINGS BELOW On May 16, 1989, Bertrand, Rapae and a third defendan...
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Tolbert Dean Spradlin appeals the district court’s enforcement of a forum selection clause in his employment contract with defendant Lear Siegler Management Services Corporation (“Lear Siegler”), and the resulting dismissal of his action for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3). He likewise appeals the district court’s denial of his request for oral argument on hi...
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926 F.2d 859 The FEDERAL LAND BANK OF SPOKANE, a corporation, Plaintiff-Appellee,v.L.R. RANCH COMPANY, a Montana corporation, John BarnardMurnion and Loriene Murnion, husband and wife, William E.Murnion and Karen J. Murnion, husband and wife, John W.Murnion, Defendants-Appellants,andUnited States of America, Defendant. No. 89-35203. United States Court of Appeals,Ninth Circuit. Arg...
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Opinion A jury convicted defendant of two counts of conspiracy (Pen. Code, § 182), one count of submitting a fraudulent insurance claim (former Ins. Code, § 556, subd. (a)(1)), and three counts of preparing a writing in support of a fraudulent insurance claim (former Ins. Code, § 556, subd. (a)(4)). 1 On appeal, he contends that the trial court erred in persuading a defense witness to assert ...
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227 Cal. App. 3d 810 (1991) 278 Cal. Rptr. 153 THE PEOPLE, Plaintiff and Respondent, v. TIEN MINH VU, Defendant and Appellant. Docket No. D010283. Court of Appeals of California, Fourth District, Division One. February 13, 1991. *811 COUNSEL Joel M. Kriger, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assi...
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*799 Opinion In response to complaints about excess traffic from residents and business owners (the Crest group) 1 , the Encinitas City Council approved a plan to make a portion of Crest Drive one way by constructing a barrier across the north-bound lane at the intersection of Crest and Santa Fe. Residents of nearby Lake Drive (the Lake group) 2 vigorously o...
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Opinion Albeiro Castrillon appeals the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5. 1 The Attorney General urges Castrillon waived his right to appeal the denial of the motion to suppress as part of a negotiated plea bargain. We agree and affirm. Castrillon was charged with several drug-related offenses. His motion to suppress evidence was denied and the ...
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Opinion Objector Clinton H. (the father) challenges juvenile dependency orders which denied him reunification services with his minor children (Welf. & Inst. Code1 § 361.5) and terminated his parental rights (§ 366.26). The critical issues are the meaning of, and the relationship among, subdivisions (a), (b)(2) and (c) of section 361.5, and whether the father was entitled to reunification service...
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Opinion Defendant State Farm Insurance Companies (State Farm) appeals from a judgment confirming an arbitration award rendered in favor of its insured, plaintiff Emma Pugh, on her uninsured motorist claim. The award followed binding arbitration ordered after Pugh filed a petition to compel arbitration in the superior court. State Farm opposed the petition on grounds the one-year statute of limi...
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MEMORANDUM DECISION This case arises out of an action (the “underlying action”) filed in California state court by Marc Christian (“Christian”) against Wallace Sheft, the Special Administrator of the Estate of Roy H. Fitzgerald, aka Rock Hudson (the “Estate”). The underlying action seeks damages resulting from Hudson’s actions in engaging in “high risk sex” with Christian. In the und...
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ORDER AND OPINION RE DISCOVERY Having considered the parties’ written and oral submissions regarding defendant/ counterclaimant, TELEDYNE INDUSTRIES, INC.’s (“Teledyne”) Motion to Compel Discovery, and plaintiff, counter-defendant McCORMICK-MORGAN, INC.’s (“MMI”) motion for a protective order, the court hereby enters the following opinion and ORDER. I. Introduction And Background The disputes add...
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Kimball appeals from his conviction on three counts of willful failure to file an income tax return in violation of 26 U.S.C. § 7203. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. A panel of this court reversed Kimball’s conviction, holding that he had filed returns. See United States v. Kimball, 896 ...
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ORDER The memorandum disposition filed October 3, 1990, is redesignated as an authored opinion by Judge Brunetti. OPINION Plaintiff-appellant Calvin Arnold (“Arnold”) sued his employer, defendant-appel-lee Arrow Transportation Co. (“Arrow”), and its retirement plan, defendant-appellee Retirement Plan for Employees of Arrow Transportation Co. (the “Retirement Plan”), alleging the...
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This appeal involves an ordinary commercial dispute over the loss of cargo consisting of a sealed carton of gold and jewels, which was transformed, as if by alchemy, into a bag of lead by the end of its international journey. The district court, relying upon Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), entered an order staying ...
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Opinion Petitioner and appellant Inglewood Teachers Association (Association) challenges a decision of respondent, the California Public *772 Employment Relations Board (PERB). The issue presented by this appeal is the appropriate legal standard for imputing the conduct of a supervisory or managerial employee to a public school employer, in this case, the real party in interest, the Inglewood...
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Opinion On June 30, 1989, an information was filed in the Kern County Superior Court against appellant Thomas Reese White, alleging a *888 violation of Penal Code section 245, subdivision (b), 1 as it provided in 1989, for assaulting a peace officer with a deadly weapon, other than a firearm, to wit: a glass container (count I); battery causing injury when the appellant knew or should have ...
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498 U.S. 426 (1991) FREEPORT-McMoRAN INC. v. K N ENERGY, INC. No. 90-655. Supreme Court of the United States. Decided February 19, 1991. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT PER CURIAM. Petitioners seek review of a decision of the United States Court of Appeals for the Tenth Circuit, holding that a Federal *427 District Court lacked jurisd...
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498 U.S. 337 (1991) McDERMOTT INTERNATIONAL, INC. v. WILANDER No. 89-1474. Supreme Court of the United States. Argued December 3, 1990. Decided February 19, 1991. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT *338 James B. Doyle argued the cause and filed briefs for petitioner. *339 Jennifer Jones Bercier argued the cause for respondent. With her on the brief was J. B. Jo...
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498 U.S. 395 (1991) GOZLON-PERETZ v. UNITED STATES No. 89-7370. Supreme Court of the United States. Argued October 30, 1990. Decided February 19, 1991. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT *397 Peter Goldberger, by appointment of the Court, post, p. 805, argued the cause for petitioner. With him on the briefs was Pamela A. Wilk. Amy L. Wax argued the cause pro ha...
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498 U.S. 358 (1991) TRINOVA CORP. v. MICHIGAN DEPARTMENT OF TREASURY No. 89-1106. Supreme Court of the United States. Argued October 1, 1990. Decided February 19, 1991. CERTIORARI TO THE SUPREME COURT OF MICHIGAN *361 Peter S. Sheldon argued the cause for petitioner. With him on the briefs were Thomas D. Hammerschmidt, Jr., Jeffery V. Stuckey, Benjamin O. Schwendener, Jr., William F. Sheehan, Col...
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Opinion The United Farm Workers of America (hereafter UFW or Union) appeals a judgment awarding damages to grower Maggio, Inc. for crop losses, damaged personal property, housing costs for replacement workers and additional security expenses caused by the tortious conduct of UFW strikers during a 1979 strike in the Imperial Valley. On appeal, the UFW contends the evidence does not su...
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Graphic Communications Union Local 747 (“the Union”) appeals two judgments of the district court holding the Union liable for racial discrimination against Woods and awarding fees. We affirm and remand. I Woods, who is Black, worked at the Kent plant of Princeton Packaging, Inc. (“Princeton”), from 1984 to 1988. The workers at the plant are represented by the Union, of which Woods was...
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Esmeralda County, Nevada, and Inyo County, California, petition this court to vacate as arbitrary and capricious the Department of Energy’s denial of their request to designate them units of local government affected by the Yucca Mountain High Level Nuclear Waste Repository Project. We grant the counties’ petitions and vacate the Secretary’s decisions not to designate the counties affected units. ...
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925 F.2d 1211 1991-1 Trade Cases 69,349 Leon NOTRICA, Plaintiff-Appellant,v.BOARD OF SUPERVISORS OF the COUNTY OF SAN DIEGO; State ofCalifornia; Paul Eckert, Ind. and as a Member of the Boardof Supervisors of the County of San Diego; Tom Hamilton;Paul W. Fordem; Patrick M. Boarman; Leon L. Williams, asMembers of the Board of Supervisors of the County of SanDiego; City Council of Ci...
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The United States appeals the district court’s order dismissing for lack of jurisdiction the indictment against David Lawson for theft of government property in violation of 18 U.S.C. § 641. At issue in this case is whether the district court erred in deciding that the proceeds of auctioned property are not “government property” within the meaning of the statute. We have jurisdiction under 18 U...
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Opinion May a licensed pest control operator, relying solely on the inspection report of another licensed operator and without conducting its own inspection, perform repair work recommended in the report? Appellant Structural Pest Control Board (Board) answered this question no. The trial court disagreed and issued a peremptory writ of mandate directed to the Board. We agree with the Boar...
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Opinion Overhead Electric Company, Inc. (Overhead) appeals from judgment entered against it and in favor of the State Board of Equalization (Board). We affirm. Facts Overhead, a corporation engaged in business as an electrical contractor, entered into a subcontract to furnish and install an emergency standby uninterruptible power system at Mather Air Force Base in California. The portion of the c...
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Opinion Statement of the Case Defendant was convicted by jury of: (1) manufacture of rock cocaine (Health & Saf. Code, § 11379.6, subd. (a)—count one); (2) possession of rock cocaine for sale (Health & Saf. Code, § 11351.5—count two); (3) maintaining a place for the sale of controlled substances (Health & Saf. Code, § 11366—count three); and (4) possessing a firearm with an obliterat...
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Opinion Plaintiff and appellant Gabriel Y. Life, also known as Gebru Teklehaimanot (Life) appeals a judgment following a grant of summary judgment in favor of defendants and respondents County of Los Angeles (the County). 1 , 2 *897 Because Life’s filing of a claim with a County hospital’s “legal department” did not amount to substantial compliance and the County is not estopped from as...
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498 U.S. 479 (1991) McNARY, COMMISSIONER OF IMMIGRATION AND NATURALIZATION, ET AL. v. HAITIAN REFUGEE CENTER, INC., ET AL. No. 89-1332. Supreme Court of the United States. Argued October 29, 1990. Decided February 20, 1991. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT. *480 Michael R. Dreeben argued the cause for petitioners. With him on the briefs were Solicitor Gene...
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This case involves Richard Bowen’s repeated requests under the Freedom of Information Act (“FOIA”) for documents and records from the United States Food and Drug Administration (“FDA”) involving cyanide and other poison tamperings of consumer products. Bowen began his FOIA requests while charged, in a state court criminal proceeding, with a cyanide tampering incident involving Anacin-3 capsules...
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The only question we are left with on this appeal is whether the district court’s order requiring Milton F. Duvall (Duvall), defendant/appellant, to pay $1.7 million in restitution is illegal. We conclude that it is not and we affirm. I. Factual and Procedural Background Duvall pled guilty to one count of mail fraud in violation of 18 U.S.C. § 1341 and one count of wire fraud in violation of ...
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Turner appeals the district court’s denial of his motions to suppress evidence, to dismiss a superseding indictment and for judgment of acquittal. We affirm. BACKGROUND Police suspected that drug traffickers were working out of a public housing complex. They asked a paid police informant, Sloggett, for information, and he told them that Turner was involved. They set up a series of con...
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James Erdman appeals from the district court’s rescission of an Offer of Judgment extended by the City of Douglas, Arizona under Rule 68 and accepted by him. In addition, he appeals the grant of summary judgment to both defendants on the merits of his § 1983 claim for unlawful incarceration. We reverse on the Rule 68 claim, but affirm on the merits. FACTS Erdman was arrested on July 1...
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Opinion In this appeal a stepparent seeks to challenge a permanency planning order by the juvenile court (Welf. & Inst. Code, § 366.25) on the *1324ground that he was not afforded adequate reunification services. We will hold that a stepparent is not a “parent” for purposes of juvenile dependency proceedings, and therefore is not entitled as of right to a reunification plan designed to facilitate...
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Opinion Kenneth and Judith Z. appeal from a judgment which declared their son, James S., to be free of their custody and control pursuant to Civil Code section 232, subdivisions (a)(2) and (a)(7).1 They contend on appeal Judith was denied effective assistance of court-appointed counsel, the trial court committed misconduct during the course of proceedings, the trial *933court erred in making certa...
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498 U.S. 466 (1991) INTERNATIONAL ORGANIZATION OF MASTERS, MATES & PILOTS ET AL. v. BROWN No. 89-1330. Supreme Court of the United States. Argued November 27, 1990. Decided February 20, 1991. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT *467 W. Michel Pierson argued the cause and filed briefs for petitioners. Paul Alan Levy argued the cause for respondent. With him ...
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*1087 Opinion The Review Department of the State Bar Court recommends petitioner Joseph L. Drociak be suspended from the practice of law for one year, stayed, and that he be placed on probation for two years under certain conditions, including thirty days’ actual suspension. Petitioner concedes he violated Business and Professions Code, section 6106 (commission of an act involving moral turpi...
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*1069Opinion We review the recommendation of the Review Department of the State Bar Court (Review Department) that petitioner, Andrew B. Kaplan, be disbarred from the practice of law. After considering the record and the arguments of Kaplan and the State Bar, we conclude that the recommended discipline is appropriate. I. Facts Kaplan was admitted to the practice of law in California on December 2...
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MEMORANDUM AND ORDER This matter is before the court on defendants’ motion to dismiss for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1), based on plaintiff’s failure to exhaust its administrative remedies. The matter was heard and submitted on January 28, 1991. I PROCEDURAL AND FACTUAL BACKGROUND Plaintiff (“Cal-Almond”) is an almond “handler” as de...
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Opinion In these consolidated proceedings under section 6083, subdivision (a), of the Business and Professions Code and rule 952(a) of the California Rules of Court, we review the decision of the State Bar recommending that petitioners Robert Paul Dudugjian and Thomas Mack Holliday (hereafter sometimes petitioners) be disciplined for a single instance of professional misconduct involving the hand...
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Opinion Plaintiff insureds appeal from a judgment entered after the court granted defendant insurer’s motion for summary judgment. The sole issue on appeal is whether plaintiffs’ suit is barred by the one-year limitation clause contained in the parties’ insurance policy. We conclude that it is not. In Prudential-LMI Com. Insurance v. Superior Court (1990) 51 Cal...
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Opinion Plaintiff, Zora S. Gill, M.D., appeals from the order dismissing his complaint, the order denying his motion for reconsideration of an earlier order denying his motion to tax costs, i.e., the award of attorney fees and costs to defendants, and the order denying his motion to strike defendants’ supplemental memorandum of costs and partially denying his motion to tax those supplemen...
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Opinion We review the recommendation of the State Bar that petitioner James Bledsoe III be disbarred from the practice of law. The *1076recommendation is based on findings of professional misconduct in four matters. After considering the record and the arguments of petitioner and the State Bar, we conclude the recommended discipline is too severe. We therefore suspend petitioner from the practice ...
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Opinion By nonjury trial appellant Christopher Donald Wilson was found guilty of residential burglary. (Pen. Code, § 459.) The court also found true the allegation that appellant was previously convicted of a serious felony, residential burglary. (Pen. Code, § 667, subd. (a).) The court sentenced appellant to a term of seven years in state prison, consisting of a low term of two years for burgl...
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Appellant Jerry Donald Stewart appeals his sentence pursuant to the United States Sentencing Guidelines, claiming that the district court should not have enhanced his sentence by two levels for possession of a weapon during a drug offense. We affirm. I.FACTUAL AND PROCEDURAL BACKGROUND On May 17,1989, a three-count superseding indictment was filed charging Stewart with conspiracy to manufactu...
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This appeal requires us to decide whether “bad act” or “other crimes” evidence offered by an accused in a criminal case to show that a third party acted in conformity with the prior act and was therefore likely the guilty party is excludable under Fed.R. Evid. 404(b). Kevin McCourt appeals his conviction on three counts of filing false claims with the government. 18 U.S.C. § 287. His princ...
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926 F.2d 890 James A. PRIVITERA, M.D., Plaintiff-Appellant,v.CALIFORNIA BOARD OF MEDICAL QUALITY ASSURANCE; KennethWagstaff, as Executive Director of the CaliforniaBoard of Medical Quality Assurance,Defendants-Appellees. No. 89-55981. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 6, 1990.Decided Feb. 25, 1991. John A. Dito, Buchalter, Nemer, Fi...
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227 Cal. App. 3d 1289 (1991) 278 Cal. Rptr. 314 THE PEOPLE, Plaintiff and Respondent, v. AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA, Defendant and Appellant. Docket Nos. E006402, E006769. Court of Appeals of California, Fourth District, Division Two. February 21, 1991. *1291 COUNSEL Mazo & Vidor and Paul M. Vidor for Defendant and Appellant. Grover C. Trask II, District Attorney, and Don R...
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Opinion By nonjury trial appellant Michael Harris was found guilty as charged of first degree deliberate and premeditated murder, with the special circumstance that the murder was committed while in lying in wait and the further finding that appellant personally used a firearm in commission of the offense. (Pen. Code, §§ 187, 190.2, subd. (a)(15), 12022.5.) Thereafter the trial court received...
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Opinion Cross-complainant Edward Jacob Hine appeals a summary judgment in favor of cross-defendants General Dynamics Corporation and John Dittrich. We affirm as to General Dynamics and reverse as to Dittrich. *61 Factual and Procedural Background Facts Hine and Dittrich were machinists at General Dynamics. At best their relationship was stormy. According to the...
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Opinion Lawrence H. Foster, Jr., M.D. (Dr. Foster), filed a petition for writ of mandate (Code Civ. Proc., § 1094.5) in the Superior Court of El Dorado County on March 28, 1988. The petition sought a writ *1608 to compel the Board of Medical Quality Assurance (BMQA) to set aside its decision to suspend his medical license for 90 days for unprofessional conduct. (Bus. & Prof. ...
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Opinion Petitioner Medical Board of California (Board) commenced an administrative disciplinary proceeding against real party in interest Michael Victor Elam, M.D. (Elam). (Bus. & Prof. Code, § 2220 et seq.) The administrative law judge (ALJ) found several charges of unprofessional conduct to be true, and rendered a proposed decision revoking Elam’s license to practice as a physician. Thi...
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*1343 Opinion In Watters Associates v. Superior Court (1990) 218 Cal.App.3d 1322 [267 Cal.Rptr. 696] (Watters I) we held that an injured temporary employee could not pursue a civil action against his employment agency for an injury caused by his temporary employer’s removal of the point of operation guard on a power press. Under Labor Code section 4558 only the employer who actually rem...
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926 F.2d 912 59 USLW 2602, 19 Fed.R.Serv.3d 742,21 Bankr.Ct.Dec. 631 In re INTERMAGNETICS AMERICA, INC., IntermagneticsEngineering, Inc.; American Video Tape Manufacturing Co.;Magnetic Tape International; Intermagnetics InternationalSales Corp.; Amex Export, Inc., Debtors.In re Amarjit Singh ANAND, an individual, fdba AgraEnterprises, Debtor.Leonard L. GUMPORT, Chapter 11 Trustee of the...
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This is a petition to review a decision of the Immigration and Naturalization Service (INS) ordering the petitioner deported on the ground that he was convicted of two crimes involving moral turpitude, and denying his application for suspension of deportation and voluntary departure. Because we agree that the acts for which petitioner was convicted do not arise out of a single scheme of crimina...
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926 F.2d 906 Joy TOMAS, Plaintiff-Appellant,v.Winona RUBIN, individually and in her capacity as Directorof the Hawaii Department of Human Services; Catherine JeanCarman, individually and in her capacity as Administrator ofthe Hawaii Child Support Enforcement Agency, Defendants-Appellees. No. 90-15201. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 7, 1990....
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Opinion The abstract words of the due process clause of the United States Constitution have engendered many controversies; but it is beyond dispute that the government may not deprive an individual of life, liberty, or property without notice and opportunity to respond, in a manner “appropriate to the nature of the case.” (Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 313 [94 L.Ed. 865,...
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*1418Opinion Plaintiff Robert I. Slater (Slater), an attorney, appeals from summary judgment1 entered against him and in favor of defendant Lawyers’ Mutual Insurance Company (LMIC), Slater’s professional liability insurer, on plaintiff’s complaint alleging LMIC breached its insurance contract and the implied covenant of good faith and fair dealing in denying Slater coverage under the policy with...
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227 Cal. App. 3d 1369 (1991) 278 Cal. Rptr. 421 THE PEOPLE, Plaintiff and Respondent, v. ROMIRO RAY GARCIA, Defendant and Appellant. Docket No. H006057. Court of Appeals of California, Sixth District. February 25, 1991. *1371 COUNSEL Cynthia Podren, under appointment by the Court of Appeal, and Jeffrey M. Evans for Defendant and Appellant. John K. Van de Kamp, Attorney General, Richard B. Iglehar...
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Opinion William R. Haight appeals from the final judgment denying his petition for writ of mandate to direct the City of San Diego and its law enforcement officers (collectively City) to remove and destroy the separation report from his police officer personnel records or grant him an administrative hearing on the validity of derogatory allegations contained in the report. We shall conclude the...
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Opinion Alphonso Bennett Gibbs appeals a judgment convicting him of selling cocaine (Health & Saf. Code, § 11352). (1) The dispositive issue on appeal is whether the court erred in denying Gibbs custody credits for the 88 days 1 he was committed for sentencing evaluation to the California Department of Corrections diagnostic facility. We conclude Gibbs is entitled to such credi...
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Opinion Plaintiff and appellant Henry C. May, doing business as May Enterprises (May), sued his marine insurance company, Lloyds of London (Lloyds), in federal court for damages including his attorneys’ fees, alleging causes of action for breach of contract, breach of fiduciary duty, bad faith and negligence relating to the stranding of his tuna boat. May settled with Lloyds for $115,000,...
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ORDER DENYING PLAINTIFF’S MOTION TO REMAND I. INTRODUCTION This action is a first party insurance lawsuit based on the alleged bad faith denial of an insured’s claim for property damage under a homeowner’s policy. On March 6, 1990, plaintiff, a citizen of California, filed a complaint against Allstate in the Santa Clara Superior Court for breach of contract and breach of the implied covenant ...
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delivered the opinion of the Court. This case requires us to decide whether postal employees are within the “zone of interests” of the group of statutes known as the Private Express Statutes (PES), so that they may challenge the action of the United States Postal Service in suspending the operation of the PES with respect to a practice of private courier services called “international remailing.” ...
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delivered the opinion of the Court. In this case we decide whether Rule 11 of the Federal Rules of Civil Procedure imposes an objective standard of reasonable inquiry on represented parties who sign pleadings, motions, or other papers. I Business Guides, Inc., a subsidiary of a leading publisher of trade magazines and journals, publishes directories for 18 specialized areas of retail trade. In an ...
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delivered the opinion of the Court. The issue presented in this case is whether a State that has not asserted jurisdiction over Indian lands under Public Law 280 may validly tax sales of goods to tribesmen and nonmembers occurring on land held in trust for a federally recognized Indian tribe. We conclude that under the doctrine of tribal sovereign immunity, the State may not tax such sales to Indi...
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Opinion This matter, first decided by this court on September 11, 1990, is again before us pursuant to a remand for further consideration from our Supreme Court. The Supreme Court directed us to vacate our original opinion (223 Cal.App.3d 994) and consider the matter anew in light of Lesher Communications, Inc. v. Superior Court (1990) 224 Cal.App.3d 774 [274 Cal.Rptr. 154]. Accordingly, on Decemb...
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Opinion Herbert D. appeals from an order judging his son, Benjamin, to be within the jurisdiction of the juvenile court. Benjamin’s mother Yobby does not appeal the order, which leaves undisturbed her physical custody of Benjamin. Herbert asserts there was insufficient evidence to establish juvenile court jurisdiction. We disagree. Facts Herbert and Yobby married in February 1985. Benjamin was bo...
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Opinion This case involves serious allegations of intentional misconduct by the workers’ compensation claims administrator of a self-insured employer. Because these allegations relate to the enforcement of workers’ compensation benefits, we conclude exclusive jurisdiction lies with the workers’ compensation system. We do so, however, reluctantly. *1477Facts Plaintiff Michael Mitchell appeals a ju...
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228 Cal. App. 3d 426 (1991) 278 Cal. Rptr. 439 Estate of GEORGE F. BILLINGS, Deceased. BEVERLY J. MONTAG, as Executrix, etc., Petitioner and Appellant, v. JOY L. BILLINGS et al., Objectors and Respondents. Docket No. D011419. Court of Appeals of California, Fourth District, Division One. February 26, 1991. *427 COUNSEL Ferman W. Sims for Petitioner and Appellant. Harmsen, Carpenter, Sidell & ...
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Opinion Greg Hawley appeals from an order denying his petition for expungement of his conviction after he was discharged prior to the termination of the period of his probation. (Pen. Code, § 1203.4.) 1 He contends the trial court had no discretion to deny the petition. We agree and reverse the order. 2 *249 I Facts Hawley pled guilty to one count of nonforcible sodomy with a person...
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Opinion A jury convicted defendant of 60 sex crimes committed against 3 victims. (Pen. Code, §§ 261, subd. (2); 286, subd. (c); 288, subd. (b); 288a, subd. (c), 289, subd (a).1 Allegations that he used a knife during all but one of the offenses and inflicted great bodily injury during four of the crimes were found true. (§§ 12022.3, 12022.8.) The court determined that defendant was sane when he c...
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Opinion For decades, Americans have gone to the movies expecting popcorn and discount tickets for senior citizens and children. This suit challenges a theater’s right to offer these price discounts. Facts Plaintiff Isaac Starkman went with his wife and two children to the Mann’s National Theatre in Westwood, California, owned by defendant Mann Theatres Corporation. 1 ...
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Appellant, Jeff Brice, appeals the district court’s order affirming the judgment and conviction entered by a magistrate after a bench trial. Brice was found guilty of impeding and disrupting a Government employee in violation of 40 U.S.C. §§ 318a, 318c and 486(c) and 41 C.F.R. §§ 101-20.-305 and 101-20.315. Brice alleges that there was insufficient evidence to support *927 his conviction and th...
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We consider whether petitioner Talal B. Jammal is entitled to a writ of habeas corpus because of an evidentiary error at his criminal trial. Facts Police arrested David Willis on suspicion of car theft and discovered a cache of drugs, $47,000 and a handgun in the trunk of the car. The gun and the car were registered to Jammal. Everyone agrees that Willis stole the car from Jammal...
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The Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), §§ 2671-2680 (1982), waives to a large extent the United States’ sovereign immunity from tort liability. The Federal Employees’ Compensation Act (FECA), 5 U.S.C. §§ 8101-8193 (1982), the workers’ compensation scheme for federal employees, appears to contradict the FTCA, at least in part, by providing that a federal employee may not bring ...
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Abel Martinez-Duran appeals his twenty month sentence for use of a communication facility in committing a drug offense, claiming the district court’s upward departure was unreasonable. Roger Carrie-Sandoval 1 appeals his twenty-four month sentence for renting or managing a building for the purpose of storing, distributing and/or using heroin, claiming it was error to add two offense levels for ...
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927 F.2d 459 1991 A.M.C. 3000 UNDERWRITERS AT LLOYDS, and other London Underwriters UnderPrimary Policy No. A84/14660 and Excess Insurance PoliciesIssued to Denali Seafoods, Inc., on or about March 22, 1984,Plaintiffs-Appellees,v.DENALI SEAFOODS, INC., Defendant-Appellant,andMary Scanlon, individually, and as the specialadministratrix of the Estate of John F. Scanlon, Jr., and asthe natura...
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228 Cal.App.3d 1055 (1991) 278 Cal. Rptr. 530 CHARLOTTE KOBEY, Plaintiff and Appellant, v. ELAINE MORTON, Defendant and Respondent. Docket No. D011896. Court of Appeals of California, Fourth District, Division One. February 27, 1991. *1056 COUNSEL Wittman & Fedynyshn, Michael P. Fedynyshyn and Stephen C. Hinze for Plaintiff and Appellant. John J. McCabe, Jr., for Defendant and Respondent. *1057 O...
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Opinion Appeal from a judgment of dismissal after the California trial court sustained respondents’ demurrer to appellant’s first amended complaint. Affirmed. Facts First, we note that “[a] general demurrer admits the proof of all material factual allegations in the complaint, and we are not concerned with the question of [appellant’s] ability to prove [her] allegations.” ...
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Opinion Introduction In this case an insured told one of his employees not to drive a truck. The insurer contends the employee therefore did not have permission within the meaning of Insurance Code section 11580.1, subdivision (b)(4). We agree with the insurer. Statement of Facts A. Underlying Action Plaintiff and appellant John E. Sandoval III is the owne...
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Opinion We reverse an order imposing sanctions. Facts Norman Bergman sued Rifkind & Sterling, among others, for damages. Irv M. Gross and his firm, Robinson, Diamant, Brill & Klausner, represent two of the defendants. Mr. Gross prepared a motion for summary judgment with a 22 i/z-page supporting memorandum of points and authorities. As Mr. Gross knew, the Los Angeles Superi...
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*1539 Opinion Introduction The People appeal from orders suppressing evidence and dismissing petitions under Welfare and Institutions Code section 602 against respondents Christopher H. and Troy M. Each petition alleged the minor was guilty of carrying a concealed firearm without a license (Pen. Code, § 12025, subd. (b)), possessing a concealable firearm without written perm...
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927 F.2d 469 59 USLW 2550 Alan B. BURDICK, Plaintiff-Appellee,v.Morris TAKUSHI, Director of Elections, State of Hawaii;John Waihee, Lieutenant Governor of Hawaii; BenjaminCayetano, in his Capacity as Lieutenant Governor of theState of Hawaii, Defendants-Appellants.Alan B. BURDICK, Plaintiff-Appellee,v.Benjamin CAYETANO, in his Capacity as Lieutenant Governor ofthe State of Hawaii; Morris...
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925 F.2d 1236 Marcia C. BUNNELL, Plaintiff-Appellee,v.Louis W. SULLIVAN, Secretary of Health and Human Services,Defendant-Appellant.Arthur RICE, Plaintiff-Appellant,v.Louis W. SULLIVAN, Secretary of Health and Human Services,Defendant-Appellee. Nos. 88-4179, 88-4225. United States Court of Appeals,Ninth Circuit. Feb. 25, 1991. Prior reports: 9th Cir., 912 F.2d 1149, 912...
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Petitioners Andy Mabel Escobar-Ramos and Jose Maximo Martinez-Reyes petition for rehearing of a decision of this court denying their petition for review of a decision of the Board of Immigration Appeals (BIA). The BIA had issued an order dismissing their appeal from an Immigration Judge’s (IJ) decision finding them deporta-ble and denying their application for asylum. We deny without preju...
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Petitioner Musibau Hassan (“Hassan”) appeals the decision of the Board of Immigration Appeals (the “Board”), affirming the decision of the Immigration Judge (“IJ”) which denied Hassan’s application for adjustment of status and Hassan’s request for a waiver of grounds of excluda-bility. I. Hassan is a twenty-seven year old citizen of Nigeria who entered the United States as a student i...
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52 Cal. 3d 1184 (1991) 805 P.2d 329 278 Cal. Rptr. 375 CITY OF WEST HOLLYWOOD, Plaintiff and Appellant, v. BEVERLY TOWERS, INC., et al., Defendants and Respondents. Docket No. S011689. Supreme Court of California. February 28, 1991. *1186 COUNSEL Michael Jenkins, City Attorney, Richards, Watson & Gershon, Richards, Watson, Drefus & Gershon, Carol W. Lynch, Efrat M. Cogan and Christi Hogin...
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52 Cal.3d 1210 (1991) 805 P.2d 899 278 Cal. Rptr. 640 THE PEOPLE, Plaintiff and Respondent, v. BRETT PATRICK PENSINGER, Defendant and Appellant. In re BRETT PATRICK PENSINGER on Habeas Corpus. Docket Nos. S004466, S009489. Crim. Nos. 22808, 24569. Supreme Court of California. February 28, 1991. *1229 COUNSEL Marvin F. Friedman and Louis M. Natali, under appointments by the Supreme Court, and Juli...
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Opinion Introduction and Summary of Decision We consider in this case two issues involving interpretation of the Unruh Civil Rights Act (Civ. Code, §§51, 52; hereafter the Unruh Act or the Act; all statutory references are to the Civil Code unless otherwise indicated): (1) does the Act proscribe, as economic discrimination, a landlord’s requirement that prospective tenants have gross monthly in...
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52 Cal. 3d 1201 (1991) 805 P.2d 325 278 Cal. Rptr. 371 JOHN NICHOLAS BACH, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent. Docket No. S014148. Supreme Court of California. February 28, 1991. *1204 COUNSEL John Nicholas Bach, in pro. per., for Petitioner. Diane C. Yu, Richard J. Zanassi, Carole Hann and Gregory B. Sloan for Respondent. OPINION THE COURT. We review the recommendation of the...
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Opinion Father (appellant) appeals a judgment terminating parental rights and freeing Rikki D. for adoption. County counsel and counsel for the minor urge us to affirm. *1627 Facts The facts are undisputed. Rikki D. was born on July 8, 1986. Regina D. was born on October 13, 1987. On October 16, 1987, petitions to declare the minors dependent children under Welfare and ...
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228 Cal.App.3d 1 (1991) 278 Cal. Rptr. 506 THE PEOPLE, Plaintiff and Respondent, v. ANTHONY JOSEPH SPEARS, Defendant and Appellant. Docket No. H006702. Court of Appeals of California, Sixth District. February 27, 1991. *6 COUNSEL Julie Schumer, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorne...
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Opinion In this appeal, in the context of the Commercial Code, we are called upon to resolve a dispute over possession of a BMW automobile. Such dispute is between defendant’s attaching creditor and a third party claimant who delivered the BMW to defendant. The dispute arose when plaintiff, the attaching creditor, levied on the BMW, purportedly owned by defendant, an automobile dealer. Th...
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227 Cal. App. 3d 1590 (1991) 278 Cal. Rptr. 550 THE PEOPLE, Plaintiff and Respondent, v. CHARLES NEWLUN, Defendant and Appellant. Docket No. C003272. Court of Appeals of California, Third District. February 28, 1991. *1594 COUNSEL Stan Naparst for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney Ge...
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Opinion Sylvia West’s sandwich shop failed, and she moved out of the Sunray Plaza pad she had leased. The owner of Sunray Plaza sued for breach of the lease, and West cross-complained against the owner and The Henderson Group (Henderson), the leasing agent. Her cross-complaint was dismissed after the court determined West had not brought her action within the six-month limitation period p...
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MEMORANDUM DECISION AND ORDER The Court has reviewed and considered the moving and opposing papers, the record of the case, the arguments of counsel, the applicable authorities and good cause appearing therefore: IT IS HEREBY ORDERED that PaineW-ebber Incorporated’s litigation expense claim against the Debtor’s Chapter 11 estate is subordinated under 11 U.S.C. § 510(b) to the claims of all ot...
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This case requires us to decide whether an appealable issue is presented when a district court declines to depart downward from the applicable sentencing guideline range, but makes no finding that it has authority to do so if it wished. Jose Fernando Garcia-Garcia appeals his sentence, imposed under the United States Sentencing Guidelines and within the applicable guideline range, following his...
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927 F.2d 486 118 Lab.Cas. P 10,622, 18 Fed.R.Serv.3d 1445 Clarence Lee Roy COMBS, Plaintiff-Appellant,v.ROCKWELL INTERNATIONAL CORPORATION; Amalgamated Local887-UAW, Defendants-Appellees.Clarence Lee Roy COMBS, Plaintiff-Appellee,v.ROCKWELL INTERNATIONAL CORPORATION; Amalgamated Local887-UAW; International Union; United Automobile;Aerospace & Agricultural ImplementWorkers of Ameri...
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Jose Tamayo-Reyes appeals the denial of his habeas corpus petition, claiming the district court erred in refusing to grant an evidentiary hearing on whether his nolo contendere plea to manslaughter was unconstitutional. We reverse in part and remand because the district court improperly deferred to certain state court factual findings based on 28 U.S.C. § 2254(d) (1988), instead of holding an evi...
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Opinion Once a court commissioner resigns and joins a law firm, under what circumstances, if not in all instances, should the firm be disqualified from representing a party to an action which, in any contested part, was heard by the former commissioner? The instant consolidated petitions for writ of mandate present this question. Both of the underlying actions are marital dissolution...
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delivered the opinion of the Court. This case is yet another that presents a challenge to a punitive damages award. I In 1981, Lemmie L. Ruffin, Jr., was an Alabama-licensed agent for petitioner Pacific Mutual Life Insurance Company. He also was a licensed agent for Union Fidelity Life Insurance Company. Pacific Mutual and Union are distinct and nonaffiliated entities. Union wrote group health ins...
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228 Cal. App. 3d 32 (1991) 279 Cal. Rptr. 625 In re ROBERT W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ROBERT W., Defendant and Appellant. Docket No. B045467. Court of Appeals of California, Second District, Division Two. March 4, 1991. *33 COUNSEL Clark, Blaylock & Clark and Dawn Clark Blaylock for Defendant and Appellant. John K. Van de Kamp, A...
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Opinion The People appeal pursuant to Penal Code section 1238, subdivision (a)(8),1 from a pretrial order of dismissal (§ 1385, subd. (a)) in this case charging defendant Vince Yarbrough with one count of robbery of Grace Bacud (§ 211). At issue are the appealability of the order of dismissal, the reviewability of evidentiary rulings preceding the dismissal, and whether the trial court correctly r...
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228 Cal.App.3d 35 (1991) 278 Cal. Rptr. 706 RICHARD LUBETZKY, Plaintiff and Appellant, v. ROBERT FRIEDMAN et al., Defendants and Respondents. Docket No. B038108. Court of Appeals of California, Second District, Division Seven. February 20, 1991. *37 COUNSEL Richard Lubetzky, in pro. per., for Plaintiff and Appellant. Mark B. Shragge for Defendants and Respondents. OPINION LILLIE, P.J. Plaintiff R...
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227 Cal.App.3d 1657 (1991) 278 Cal. Rptr. 596 FRANK McCOY et al Plaintiffs and Appellants, v. HEARST CORPORATION et al., Defendants and Respondents. Docket No. A045724. Court of Appeals of California, First District, Division Five. March 1, 1991. *1658 COUNSEL Charles O. Morgan, Jr., and Paul Kleven for Plaintiffs and Appellants. Pillsbury, Madison & Sutro, Walter R. Allan, Jerome C. Doughert...
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Opinion This is an appeal from an order granting a preliminary injunction, the effect of which is to prevent the owners of nine hotels managed by Embassy Suites, Inc. (Embassy) from terminating Embassy’s management contracts pending the resolution of an arbitration to determine whether Embassy breached the contracts. Because the injunction violated several principles governing the issuanc...
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228 Cal.App.3d 92 (1991) 278 Cal. Rptr. 758 DOMINIC BRUSSO et al., Plaintiffs and Appellants, v. RUNNING SPRINGS COUNTRY CLUB, INC., et al., Defendants and Respondents. Docket No. E007267. Court of Appeals of California, Fourth District, Division Two. March 4, 1991. *96 COUNSEL Paula Forthun for Plaintiffs and Appellants. Sprague, Tomlinson & Nydam and William O. Carlisle for Defendants and R...
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927 F.2d 1088 59 USLW 2603 UNITED STATES of America, Plaintiff-Appellant,v.Darrel SIMPSON; Robert Anderson; James Freeman,Defendants-Appellees. No. 89-50196. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 2, 1990.Decided March 6, 1991. John J. Byrne, Jr., Sp. Atty., U.S. Dept. of Justice, Los Angeles, Cal., for plaintiff-appellant. Jo...
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927 F.2d 493 1991 A.M.C. 1217 David HUNLEY; Ned Lentz; Michael Zimick; Austin Lentz,Plaintiffs-Appellees,v.ACE MARITIME CORP.; Shinto Shipping Co. Ltd.; AlpsShipping PTE, Defendants,andM/V Eastern Grace, her engines, tackle, etc., Defendant-Appellant.M/V EASTERN GRACE, Plaintiff-Appellant,v.Mary LENTZ; Austin Lentz, Defendants-Appellees. Nos. 89-35306, 89-35394. United States...
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926 F.2d 1502 UNITED STATES of America, as Trustee for the Kalispel IndianTribe and Individual Allottees, Plaintiff-Appellee,andKalispel Indian Tribe, Intervening-Plaintiff,v.PEND OREILLE PUBLIC UTILITY DISTRICT NO. 1, a MunicipalCorp., Defendant,andDepartment of Natural Resources, State of Washington,Defendant-Intervenor-Appellant.UNITED STATES of America, as Trustee for the Kalispel IndianTr...
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927 F.2d 1083w UNITED STATES of America, Plaintiff-Appellee,v.Warren James SHARP, Defendant-Appellant. No. 88-5122. United States Court of Appeals,Ninth Circuit. Submitted March 27, 1990.*Submission Deferred April 5, 1990.Resubmitted Aug. 13, 1990.Decided March 6, 1991. NOTE: THE COURT HAS WITHDRAWN THIS OPINION ...
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Joseph Dean Clayton appeals his federal sentence for making false statements in the acquisition of a firearm and for firearm possession by a felon in violation of 18 U.S.C. §§ 922(a)(6) and 922(g). Clayton contends that the district court erred in directing that his federal sentence be served consecutively with a state sentence that had not yet been imposed. We reverse and remand. Jurisdic...
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Jesus Castro-Cervantes appeals from a sentence imposed upon him by the district court for bank robbery. We remand. FACTS On September 21,1988 Castro-Cervantes was indicted on seven counts of unarmed bank robbery in violation of 18 U.S.C. § 2113(a). On November 21,1988 he pleaded guilty to counts 1 and 2, pursuant to a plea agreement whereby the government dropped the remaining five counts a...
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228 Cal.App.3d 139 (1991) 278 Cal. Rptr. 770 VERNA MAGNUSON-HOYT, Plaintiff and Appellant, v. COUNTY OF CONTRA COSTA, Defendant and Respondent. Docket No. A049464. Court of Appeals of California, First District, Division Three. March 5, 1991. *141 COUNSEL Curran & Alschuler and Donald W. Curran for Plaintiff and Appellant. Gordon, DeFraga, Watrous & Pezzaglia and Timothy J. Ryan for Defendant and...
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Opinion Michael Gutierrez appeals under Penal Code section 1237, from the sentence imposed on him in case No. 16778-C for violations of Penal Code1 sections 459 (residential burglary), 496 (receiving stolen property), and in case No. 16135-C for violation of section 666 (theft). Appellant was found guilty of residential burglary and receiving stolen property in a jury trial, and in a separate and ...
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Opinion Objectors and appellants Susan and Duane P., parents of minor Walter P., appeal from a judgment freeing minor from their custody and control pursuant to Civil Code section 232. 1 They contend that (1) the res judicata effect of earlier lawsuits barred the freedom from custody and control action; (2) the judgment violates the doctrine of law of the case; (3) delay of the...
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ORDER I. For the reasons set out below, the motion of plaintiff AMERICAN EMPIRE for SUMMARY JUDGMENT is HEREBY GRANTED. II. This case arises out of a coverage dispute between an insurer and its insured. American Empire Surplus Lines Insurance Co. (American Empire) issued an Owner’s, Landlord’s & Tenant’s Liability policy to defendant Bay Area Cab Lease, Inc. (Cab Co.) for t...
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MEMORANDUM OPINION Plaintiff Clifford S. Heinz (“plaintiff"), a citizen of California, filed this action in Orange County Superior Court on September 10, 1990, against his wife, Catherine Elaine Havelock (“Havelock-Heinz”), and her two children by a former marriage, Wendy Coleman (“Wendy”) and Jeffrey P. Massnick (“Jeffrey”). Defendants removed the action to federal court on the grounds of dive...
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OPINION ON THE SCOPE OF 11 U.S.C. § 101(30) Max H. Rush (“Trustee”), trustee in this chapter 7 case, commenced this adversary proceeding by filing his “Complaint to Avoid Preferential Transfer(s)”. The only named defendant is William Riddle (“Riddle”). In the Complaint, Trustee seeks to avoid as preferential under 11 U.S.C. § 547 and apparently recover 1 a transfer of funds in ...
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Edward X. Mondello appeals his sentence imposed under the United States Sentencing Guidelines (U.S.S.G.), and the denial of his motion to suppress evidence. He claims (1) the district court applied the Guidelines incorrectly, (2) the Guidelines are contrary to the Sentencing Reform Act of 1984 (codified as amended), 18 U.S.C. § 3551 et seq. (1988), and 28 U.S.C. § 991 et seq. (1988), (3) the Guide...
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Opinion In a municipal court nonjury trial plaintiff DCM Partners (DCM) was awarded $11,912.50 representing the usurious interest *732 paid to defendant Cherrill Ann Smith on a secured promissory note. After the appellate department of the superior court affirmed the judgment, the case was certified to this court under California Rules of Court, rule 63 so that we might decid...
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927 F.2d 1094 136 L.R.R.M. (BNA) 2750, 59 USLW 2603,118 Lab.Cas. P 10,601,RICO Bus.Disp.Guide 7711 Norma Kay HUBBARD, Individually, and on Behalf of allPlaintiffs Similarly Situated, Plaintiff-Appellant,v.UNITED AIRLINES, INC., a Delaware Corporation, the PacificIns. Co., Ltd., a Hawaii Corp., Hartford Life &Accident Company, Inc., a ConnecticutCorporation, Defendants-Appellees. N...
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Appellant Humberto Sanchez was sentenced to 185 months imprisonment for possession of approximately 1500 pounds of cocaine with intent to distribute. Sanchez appeals his sentence, claiming the district court erroneously concluded it lacked discretion to depart downward. We affirm. Background Shortly after Sanchez’s arrest for the instant offense, the government seized most of Sanchez’s assets...
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Opinion Introduction We affirm the trial court’s judgment denying a petition for mandamus following the Department of Motor Vehicle’s suspension of petitioner’s driving license for failure to comply with the Financial Responsibility Law. Respondent Department of Motor Vehicles (DMV) held a hearing on December 5, 1989, before a referee concerning the suspension of the driving privilege of pe...
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Opinion Appellant Anthony William Young was charged with felony burglary in violation of section 459 of the Penal Code. 1 A preliminary hearing was held on July 2, 1986, after which appellant pleaded guilty to the offense charged on the condition that the prosecutor recommend at sentencing that the court make an “unusual case” finding and grant probation with a condition of a six-month jail t...
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Opinion The petition of the McFarland Unified School District (District) presents two issues: (1) whether the record and applicable law *168support the conclusion of respondent, the Public Employment Relations Board (PERB) that the District discriminated against Vicki Stephens-Weaver, a probationary schoolteacher, by not reelecting her to teach at McFarland High School on the basis of her exercisi...
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Opinion Plaintiff and appellant Ray Menefee was a former month-to-month tenant of premises owned by defendants and respondents Karl Ostawari and Sylvia Weiss, individually and doing business as O.W. Investments, and O.W. Investments. By his complaint, appellant alleged his month-to-month tenancy was wrongfully terminated by defendants in violation of the San Francisco Rent Control Ordinan...
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ORDER This matter is before the court on plaintiffs’ motion for partial summary judg *574 ment. For the reasons I explain below, the motion is GRANTED in part and DENIED in part. I SUMMARY JUDGMENT STANDARDS UNDER FED.R.CIV.P. 56 Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the movi...
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Today we consider what remedies are available to a federal employee who has work-related differences with his supervisors. Specifically, we decide whether a federal employee may use either a constitutional or a common law tort theory to sue his supervisors over disputes growing out of his employment. BACKGROUND Jeffrey Saul worked for the Social Security Administration (SSA) in Seattl...
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ORDER This matter comes before the Court on the plaintiffs motion to remand this action to state court and for attorney fees, and on the defendant’s motion to dismiss for lack of subject matter jurisdiction. The parties’ motions came on for hearing on January 14, 1991 at 10:00 a.m., the Honorable Thel-ton E. Henderson presiding. Stephen R. Jaffe appeared for the plaintiff. Charles F. Palm...
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We must determine if the district court properly applied Nevada law in this Federal Tort Claims Act case when it held the United States liable for injuries suffered by a contractor’s employee in an accident at the Hoover Dam in Nevada. The United States appeals from an amended judgment awarding $1,035,150.78 to Lloyd Littlefield, an employee of Frontier-Kemper Constructors, Inc. Littlefiel...
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*456Opinion Almost seven years after it was filed, a complaint was dismissed pursuant to the mandatory five-year dismissal statute (Code Civ. Proc.,1 § 583.3102). Appellant claims the limitation period was automatically tolled by his postarbitration trial de novo request, by the filing of his appeals, and because it was “impossible, impracticable, or futile” (§ 583.340) to bring the action to tria...
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228 Cal.App.3d 390 (1991) 279 Cal. Rptr. 124 HENRY KNASS, Plaintiff and Appellant, v. BLUE CROSS OF CALIFORNIA, Defendant and Respondent. Docket No. D011798. Court of Appeals of California, Fourth District, Division One. March 11, 1991. *392 COUNSEL Lon F. Hurwitz for Plaintiff and Appellant. Munger, Tolles & Olson, Vilma S. Martinez and Mark H. Epstein for Defendant and Respondent. OPINION F...
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Opinion On September 13, 1988, 70-year-old defendant James Basil Goodrum pleaded nolo contendere to a felony charge of driving under the influence of alcohol in violation of Vehicle Code section 23153, subdivision (a). 1 The charge stemmed from a single-car accident which resulted in the death of Roland Anners. According to the prosecution, Anners was a passenger in and Goodrum the driver of ...
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Opinion This petition presents novel procedural and substantive questions about recording and removing mechanics’ liens. Real party in interest *385 William MacEwen, a licensed general contractor (contractor), recorded a lien for $117,328.05 against property owned by petitioners Claude and Micheline Lambert (owners). By contractor’s own admission, most of the lien is based up...
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Tyler’s parole was revoked after he violated its conditions. The parole commission determined that upon revocation he must forfeit the credit he would otherwise have received for his “street time.” 1 Unhappy with the resulting delay of his mandatory release date, Tyler contested the forfeiture by a federal habeas motion. He appeals its denial. BACKGROUND In 1983, the Superi...
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Juan Rubio-Villareal appeals his convictions for conspiracy to import 7.42 kilograms of cocaine, in violation of 21 U.S.C. §§ 952, 960, and 963 (Count 1); importation of 7.42 kilograms of cocaine, in violation of 21 U.S.C. §§ 952 and 960 (Count 2); conspiracy to possess cocaine for distribution, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 3); and possession of cocaine for distribution, ...
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Opinion Facts and Procedural History Robert Daniels died on March 25, 1982. The second amendment to the Robert and Isabelle Daniels Living Trust of 1982 established a qualified terminable interest property (QTIP) trust which gave Isabelle, as surviving spouse, the income for life and a limited power of appointment over the remainder. Isabelle died on April 6, 1984. She had received $242,245.63 in...
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Opinion Scherri Charissa Nealy appeals from the judgment (order granting probation) entered following a court trial resulting in her conviction of possessing cocaine base for sale. (Health & Saf. Code, § 11351.5.) Prior thereto, she unsuccessfully brought a motion to suppress evidence. (Pen. Code, § 1538.5.) She contends: “I. The trial court erred in refusing to suppress evidence for a vi...
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228 Cal.App.3d 434 (1991) 278 Cal. Rptr. 918 TANJA H., Plaintiff and Appellant, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents. Docket No. A046913. Court of Appeals of California, First District, Division Two. March 12, 1991. *435 COUNSEL Tesler & Sandmann, Pauline H. Tesler and Eve T. Contente for Plaintiff and Appellant. Crosby, Heafey, Roach & May, Pe...
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Opinion A defendant in a criminal action seeks a writ of mandate to establish the timeliness of his Code of Civil Procedure section 170.6 challenge to the superior court judge to whom the case was assigned for all purposes. By complaint, petitioner was accused of felonious assault with a deadly weapon causing great bodily injury. (Pen. Code, §§ 245, subd. (a)(1); 12022, subd. (b); 12022.7.) T...
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Gus Kirk and Candy Kirk appeal the Immigration and Naturalization Service’s (“INS”) chief administrative hearing officer’s (“CAHO”) decision affirming the administrative law judge’s (“AU”) default judgment imposing employer sanctions on the Kirks under 8 U.S.C. § 1324a. We have jurisdiction under 8 U.S.C. § 1324a(e)(8), and we affirm. FACTS Following an inspection by the INS, Gus and ...
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928 F.2d 314w UNITED STATES of America, Plaintiff-Appellee,v.Ignacia DIAZ-ESPINDOLA, Defendant-Appellant. No. 89-30321. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 2, 1990.Decided March 14, 1991. 1 NOTE: THE COURT HAS WITHDRAWN THIS OPINION. ...
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Ronald E. Ting appeals from the district court’s grant of summary judgment in favor of the defendants on his Bivens action against five FBI agents and claims against the United States pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674. Ting claims that the agents’ use of deadly force to effect his arrest was excessive and unreasonable. We affirm in part, and reverse and remand in p...
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*513 Opinion Statement of the Case Defendant was charged by information in the Kern County Superior Court with: (1) count I, a violation of Penal Code section 245, subdivision (a)(1) (assault with force likely to produce great bodily injury) and (2) count II, a violation of Penal Code section 653m, subdivision (a) (making a threatening telephone call). It was alleged that in...
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228 Cal.App.3d 502 (1991) 279 Cal. Rptr. 135 SOUTH BAY UNION SCHOOL DISTRICT, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent; SOUTHWEST TEACHERS ASSOCIATION, CTA/NEA, Real Party in Interest. Docket No. D012247. Court of Appeals of California, Fourth District, Division One. March 13, 1991. *504 COUNSEL Brown & Conradi, Clifford D. Weiler and Donna M. Williamson for Petitioner. Kr...
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Opinion This is a statutory petition for a writ of mandate, Code of Civil Procedure section 418.10, subdivision (c), 1 to compel quashing service of summons. On May 6, 1988, plaintiff and real party in interest Duvall sued petitioner and defendant, Dr. Jellinek, in the small claims court for malpractice connected with plastic surgery performed on May 7, 1987, seeking damages of $1,500. Someti...
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*115 Opinion Introduction On December 11, 1985, the plaintiffs, Security Environmental Systems, Inc., and its wholly owned subsidiary, California Thermal Treatment Service, Inc., submitted applications for South Coast Air Quality Management District permits to construct (permits) the first hazardous waste incineration facility in the State of California. The incinerator woul...
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Opinion The People appeal from an order dismissing a criminal action against respondent, Calvin Coolidge Jones. They claim the trial court erred when it granted respondent’s motion to suppress evidence. We disagree and affirm. I. Factual and Procedural Background Shortly before 9 p.m. on August 31, 1989, Oakland Police Officer James Burns was on patrol in a marked car when he sa...
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*567 Opinion In what is apparently a case of first impression, we will hold that the special circumstances jury trial provision of Penal Code 1 section 190.4, subdivision (a) is not mandated by the California Constitution. Statement of the Case In information number 25143 Fermín Fredric Moreno and his brother, Fernando Moreno (collectively appellants), were charged with the murder of He...
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53 Cal. 3d 1 (1991) 805 P.2d 948 278 Cal. Rptr. 689 In re RALPH J. LEARDO on Disbarment. Docket No. S013350. Supreme Court of California. March 14, 1991. *3 COUNSEL George V. Denny III for Petitioner. Quattrin, Johnson, Campora & England, David B. Johnson, Edwin T. Caldwell and Theodore A. Cohen as Amici Curiae on behalf of Petitioner. Diane C. Yu, Richard J. Zanassi, Starr Babcock and Mara M...
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53 Cal.3d 21 (1991) 805 P.2d 941 278 Cal. Rptr. 682 DOUGLAS PAUL GRIM, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent. Docket No. S014192. Supreme Court of California. March 14, 1991. *26 COUNSEL Douglas Paul Grim, in pro. per., Margolis & Margolis, and Arthur L. Margolis for Petitioner. Diane C. Yu, Richard J. Zanassi, Sandra T. Larson and Gael T. InfandeWeiss for Respondent. OPINION THE...
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Opinion Wendy Dawn Leslie Fuss (Fuss) has petitioned for a writ of mandate to require respondent Superior Court for the County of San Bernardino (respondent court) to dismiss the complaint brought by real party in interest Lawrence Scot Madsen (Madsen). Fuss’s petition presents an issue of first impression: Does putative father, who brought an action under Civil Code section 7006, subdivisions ...
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*540 Opinion Introduction Appellant Joyce M[ason appeals from a summary judgment. She argues a triable issue of fact exists as to when respondent’s alleged malpractice caused her injury. We agree and reverse. Factual and Procedural Background In September 1977, Mason became a patient of respondents Dr. Charles E. Hansen and Susan Hansen. Charles Hansen is a license...
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228 Cal.App.3d 548 (1991) 278 Cal. Rptr. 830 In re the Marriage of LONNIE and BETTY JEFFRIES. LONNIE JEFFRIES, Respondent, v. BETTY JEFFRIES, Appellant. Docket No. E006668. Court of Appeals of California, Fourth District, Division Two. March 14, 1991. *549 COUNSEL Stuart A. Holmes for Appellant. Maroney & Brandt and Barry Brandt for Respondent. OPINION TIMLIN, J. The instant appeal arises within ...
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Opinion By jury trial appellants Donald Coe, Ronald O. Coe and Alan M. Betts were convicted of one count of conspiracy and nine counts of burglary. (Pen. Code, §§ 182, 459.) Each was sentenced to state prison. The conspiracy and burglaries involve a sophisticated safecracking scheme. Between November 1983 and April 1984, appellants burglarized *529 nine commercial establ...
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Leon Brady was convicted of voluntary manslaughter and assault with a dangerous weapon. He appeals the legality of his sentence, contending that its terms imper-missibly depart from the Federal Sentencing Guidelines. We conclude that the sentence imposed is incompatible with the Guidelines. We therefore vacate the sentence and remand this matter for further proceedings consistent with this opinion...
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ORDER The decision of the Bankruptcy Appellate Panel is affirmed. The opinion of the Bankruptcy Appellate Panel reported at 116 B.R. 174 (Bankr. 9th Cir.1990) is adopted in full. Appellee’s request for attorney fees is denied. AFFIRMED. ...
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Tim Lentz insulted appellant Kyung Hwan Mun with racial slurs while the two were in an Oregon bar. A fight ensued. Mun was losing badly. He retrieved a semi-automatic pistol from his car, fired two shots into the air, and pursued Lentz back into the bar. Inside the bar, Mun fired three more shots before he was subdued by other customers. Police later discovered an AK-47 assault rifle in Mun’s hom...
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OVERVIEW David Frederick Sherman pled guilty to five counts of bank robbery and attempted bank robbery. His sentence was adjusted under the career offender provisions of the Sentencing Guidelines for having two prior convictions for crimes of violence. He appeals this adjustment, arguing that the district judge erred in determining that a prior state conviction for “burglary in the first degree...
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228 Cal. App. 3d 604 (1991) 278 Cal. Rptr. 900 DAISY ASHCRAFT, Plaintiff and Appellant, v. JOHN D. KING, Defendant and Respondent. Docket No. B043675. Court of Appeals of California, Second District, Division Seven. March 15, 1991. *608 COUNSEL Ian Herzog and Evan Marshall for Plaintiff and Appellant. Baker, Silberberg & Keener, Robert C. Baker, Thelen, Marrin, Johnson & Bridges, Curtis A...
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Opinion Defendant Jess Flora was charged by information with a felony violation of a child custody order (former Pen. Code, § 278.5, subd. (a)) 1 and false imprisonment (§§ 236-237). The jury convicted him of the child custody order violation charge, but acquitted him of the false imprisonment charge. Appellant appeals his conviction. We affirm. Facts and Proceedings ...
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759 F. Supp. 1444 (1991) APPLE COMPUTER, INC., a California corporation, Plaintiff, v. MICROSOFT CORPORATION, a Delaware corporation, and Hewlett Packard Company, a California corporation, Defendants. No. C-88-20149-VRW. United States District Court, N.D. California. March 6, 1991. *1445 *1446 Chris R. Ottenweller, Brown & Bain, Palo Alto, Cal., Jack E. Brown, Brown & Bain, Phoenix, Ariz....
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ORDER This matter came before the Court on July 15,1991, on plaintiffs’ motion for summary judgment and defendant’s cross-motion to dissolve the preliminary injunction. Having carefully considered the parties’ written and oral arguments, the Court defers ruling on both motions and directs the parties to proceed as set forth below. BACKGROUND The background to this litigation has...
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*707 Opinion As a general rule an employee injured in the course and scope of his or her employment must proceed administratively through the workers’ compensation system to obtain the benefits provided by the Workers’ Compensation Act, Labor Code section 3200 et seq. 1 (§ 3600, subd. (a).) There are statutory exceptions to this general rule, however, authorizing the i...
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Opinion The People filed an information charging defendant and respondent David Wayne Sconce (Sconce) with conspiracy to commit murder. (Pen. Code, §§ 182, 187, subd. (a).) 1 The trial court set the information aside because it found Sconce effectively had withdrawn from the conspiracy. (§ 995.) The People appeal. (§ 1238, subd. (a)(1).) Because withdrawal cannot insulate ...
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Opinion We issued an order to show cause to review a summary adjudication granted in favor of real party in interest New Car Dealer Associates (NCDA), a defendant in this action brought by petitioner Glynis Pistone (Pistone) against NCDA and Diablo Leasing Company, doing business as Walnut Creek Nissan (Nissan), over defendants’ denial of claims Pistone made under a vehicle service contra...
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Opinion —We review the recommendation of the State Bar Court that petitioner David Eric Brockway be suspended from the practice of law for one year, that execution of the order be stayed, and that petitioner be placed on probation for two years on various conditions, including actual suspension for three months. 1 We uphold the State Bar Court’s findings that petitioner misappropriated fund...
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Opinion Holding Workers’ compensation is not an employee’s exclusive remedy against an employer/hospital for its negligence in treating and thereby aggravating an industrial injury. *761 Statement of the Case Plaintiff Louisa Sturtevant filed an action for medical malpractice against her employers County of Monterey and Natividad Medical Center and a co-emp...
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Opinion Civil Code section 227b authorizes the superior court to set aside a decree of adoption within five years of its entry where the adopted child manifests a developmental disability or mental illness as a result of conditions which existed prior to the adoption and of which the adoptive parents had neither knowledge nor notice. The disability or illness must also be of such nature t...
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*41 Opinion —We review the recommendation of the Review Department of the State Bar Court (Review Department) that petitioner, Betsey Warren Lebbos, be disbarred from the practice of law in California. After considering the record and the arguments of petitioner and the State Bar, we conclude that the State Bar’s recommendation is appropriate. 1 Facts Petitioner...
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Opinion Introduction In this case, the trial court not only erred in denying a motion which should have been granted, it also imposed sanctions against the moving party, a codefendant which had not joined in the motion, and their attorney. MBS Optics, Inc. (MBS), Optical Surplus, Inc. (Optical), and their attorney, Terrance McKnight (collectively appellants), appeal from the tri...
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delivered the opinion of the Court. This case presents the question whether fees for services rendered by experts in civil rights litigation may be shifted to the losing party pursuant to 42 U. S. C. § 1988, which permits the award of “a reasonable attorney’s fee.” *85I Petitioner West Virginia University Hospitals, Inc. (WVUH), operates a hospital in Morgantown, W. Va., near the Pennsylvania bord...
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928 F.2d 331 Clinton Roy CALDWELL, Plaintiff-Appellant,v.John LeFAVER, Director of the Department of Social andRehabilitation Services; Department of Social andRehabilitation Services of the State of Montana; GwenFarnsworth, Social Worker; Russell Francetich, SocialWorker; and Mineral County, Defendants-Appellees. No. 89-35327. United States Court of Appeals,Ninth Circuit. Argu...
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928 F.2d 328 1991-1 Trade Cases 69,386 Leroy BIEBER; Lynda Bieber, husband and wife; Skull CreekRanch, Inc., Bieber Land and Cattle, Inc., aMontana corporation; Scott R. Bieber,Individually, Plaintiffs-Appellants,v.STATE BANK OF TERRY; Albert S. Brubaker; Sidney K.Brubaker; Gary Ryti; Bruce A. Fredrickson,Defendants-Appellees. No. 90-35551. United States Court of Appeals,N...
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928 F.2d 863 137 L.R.R.M. (BNA) 2053, 118 Lab.Cas. P 10,638 James S. SCOTT, Regional Director of the Thirty-SecondRegion of the National Labor Relations Board, forand on behalf of the National LaborRelations Board, Petitioner-Appellant,v.IRON WORKERS LOCAL 118, INTERNATIONAL ASSOCIATION OF BRIDGE,STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL-CIO,Respondent-Appellee. No. 89-16001. Un...
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Creed M. Evans appeals from his conviction following a plea of nolo contendere for making false statements to the Bureau of Alcohol, Tobacco and Firearms in violation of 18 U.S.C. § 1001 (1988). Evans claims that the district court improperly denied his motions to dismiss prior charges and suppress evidence relating to those charges — charges which the government subsequently dropped in exchang...
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ORDER The appellee’s request for publication is GRANTED. The opinion and memorandum dispositions filed January 17, 1991, are withdrawn and the attached opinion filed in its stead authored by Judge Rymer. OPINION A jury found Susana Sanchez-Robles guilty of importing cocaine, importing marijuana and possessing marijuana and cocaine with intent to distribute in violation of 2...
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Opinion We hold here that a second juvenile court petition filed under Welfare and Institutions Code 1 section 602, not alleging a violation of probation and not seeking aggregation of confinement time, is not part of the same proceeding arising from the original petition. Thus, the referee hearing the second petition, who served as deputy district attorney prosecuting the first petition, is ...
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*807 Opinion By this appeal, appellant Bellflower Education Association, CTA/NEA (the Union), seeks reversal of a judgment vacating an arbitration award and requests an order remanding the case to the superior court for confirmation of that award. Respondent Bellflower Unified School District (the District), against whom the award issued, maintains that the award was properly vacated as being...
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Opinion Petitioner, Associated Truck Parts, seeks a writ of mandate compelling the trial court to grant its motion for summary adjudication of issues on the ground that this action is barred by the applicable statute of limitations. The issue presented is what effect the subsequent retention of counsel has on the tolling provisions set forth in Insurance Code section 11583, as amended in ...
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228 Cal.App.3d 713 (1991) 279 Cal. Rptr. 22 CITY OF SANTEE et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; J.M.R. COMPANY, Real Party in Interest. Docket No. D012941. Court of Appeals of California, Fourth District, Division One. February 25, 1991. *715 COUNSEL Randal Morrison and Donald F. McLean, Jr., City Attorneys, for Petitioners. No appearance for Respondent. Cla...
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499 U.S. 187 (1991) INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, ET AL. v. JOHNSON CONTROLS, INC. No. 89-1215. Supreme Court of the United States. Argued October 10, 1990. Decided March 20, 1991. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. *189 Marsha S. Berzon argued the cause for petitioners. With her on th...
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929 F.2d 457 Benton D. BURT, Plaintiff-Appellant,v.Michael HENNESSEY, Sheriff of San Francisco County; WilliamW. Davis, Under-Sheriff of S.F. County; Osuna, Ch. Dep.Sheriff; Pisciotta, Sheriff Sg.; Randy Darr, Attorney forPrisoner's Services for the San Francisco County Sheriff'sDepartment, Defendants-Appellees. No. 86-2651. United States Court of Appeals,Ninth Circuit. Submitt...
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928 F.2d 866 59 USLW 2617, 124 P.U.R.4th 402 INFORMATION PROVIDERS' COALITION FOR DEFENSE OF THE FIRSTAMENDMENT, Petitioner,Ameritech Operating Companies, (Illinois Bell Telephone Co.,Indiana Bell Telephone Co. Incorp., Michigan BellTelephone Co., Ohio Bell Telephone Co.,Wisconsin Bell, Inc.), Intervenor,v.FEDERAL COMMUNICATIONS COMMISSION and the United States ofAmerica, Respondents,GTE S...
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928 F.2d 1471 59 USLW 2620, Fed. Sec. L. Rep. P 95,868 Floyd KOCH; Janice Koch; William D. Lowe; Phyllis Lowe;Colin Wong; Mark Burr; Suzanne Borges; Herman Duran;Walter Hashimoto; Shoge Kimura; Hercules Fini, DamienChang, Ken Takeda, Bill Parrish, Ken Kemp, James Fong, YuiYee Fong, F. Allen Whitaker, Bob Lugg, Joe Kimura, BeverlyChinn, Harold Chew, Ken Lee, Charles DiBari, Russell...
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228 Cal.App.3d 967 (1991) 279 Cal. Rptr. 89 JACK N. YOUNESI, Plaintiff and Respondent, v. FRANKLIN K. LANE III, Defendant and Appellant. Docket No. B040751. Court of Appeals of California, Second District, Division One. March 21, 1991. *969 COUNSEL Franklin K. Lane III, in pro. per., for Defendant and Appellant. Ronald E. Faulk for Plaintiff and Respondent. OPINION ORTEGA, J. — BACKGROUND This c...
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Opinion In this action on a promissory note, the court by nonjury trial gave judgment for plaintiff and respondent Akbar Kazerouni against defendants and appellants Steve and Mary De Satnick. The judgment further provides that appellants take nothing by their cross-complaint for breach of warranty. Respondent sold his business (Photo Run Inc., a photo-developing store) to appellants ...
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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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OPINION Plaintiff investors brought this putative class action alleging violations of the Securities Act of 1933 and the Securities Exchange Act of 1934, including a claim under section 11 of the Securities Exchange Act of 1933, 15 U.S.C. § 77k, and pendent state claims, including a negligence claim against defendant KPMG Peat Marwick (“Peat Marwick”). The parties are now before the court...
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OPINION AND ORDER In this action for damages to a computer shipped by defendant, North American Van Lines (“North American”), for plaintiff Hughes Aircraft Company (“Hughes”),1 North American brings a motion for summary judgment to limit its liability to $12,-408, the released value set forth in the relevant shipping tariff. Having considered the oral and written arguments of counsel in support o...
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928 F.2d 880 19 Fed.R.Serv.3d 1487, 14 UCC Rep.Serv.2d 79,33 Fed. R. Evid. Serv. 478 Alan Koon To PAU, Jin-Si Pau, a minor, by Alan Koon-To Pau,as guardian ad litem; Jin-Yi Pau, a minor, byAlan Koon-To Pau, as guardian ad litem;Estate of Wai-Ching So,Plaintiffs-Appellants,v.YOSEMITE PARK AND CURRY COMPANY, an MCA Company, Defendant-Appellee. No. 89-15511. United States Court of Ap...
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Gregory Paul Johnson, a state prisoner, appeals pro se from the denial of his petition pursuant to 28 U.S.C. § 2254. The district court held that Johnson was barred from seeking review of his federal constitutional claim because he had failed to present it in the Arizona state courts. The district court also concluded that Johnson had failed to demonstrate cause and prejudice for his procedural...
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Opinion Charles Edwards (Edwards) appeals from a defense verdict and judgment rendered in his action for personal injuries against Post Transportation Company (Post). His case was presented to the jury on theories of negligence. His sole ground of appeal is that the court refused to permit him to argue, in addition to the negligence theory, a claim of strict liability based on Post’s participation...
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Opinion Donald L. Harper appeals from his conviction, following a jury trial, of first degree murder with use of a firearm (count one), preventing and dissuading a witness by means of force or threats (count four), and two counts of inducing a witness to give false testimony by force or fear (counts three and five). Facts The Murder On February 5, 1988, Tyrone Pouncy was killed on a sta...
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Opinion Defendant Suzanne Boyajian appeals from a judgment of conviction after a court trial of assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (b)).1 The People also alleged in the information that defendant was personally armed with a knife and that the offense was a serious felony (§§ 667, 1192.7). On appeal defendant argues the trial court erred: 1) in finding the requ...
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Opinion Appellant, Michele G., appeals from a judgment under the Uniform Parentage Act (Civ. Code, § 7000 et seq.) determining that respondent, Nancy S., is the only parent of the two minor children that respondent conceived by artificial insemination during her relationship with appellant. *834 The judgment further provided that respondent, as the only legal parent of the tw...
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Opinion Defendant appeals from the judgment and sentence imposed following his conviction (by negotiated plea) of second degree burglary. (Pen. Code, §§ 459, 460.) In the trial court, defendant made a motion to peremptorily disqualify the sentencing judge pursuant to Code of Civil Procedure section 170.6. (All further statutory references are to the Code of Civil Procedure.) 1 The trial cou...
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Opinion Petitioner State Farm Mutual Automobile Insurance Company (State Farm) seeks a writ of mandate to vacate the order of respondent superior court excluding all evidence of State Farm’s advice of *724 counsel defense to a claim of insurance bad faith alleged by real parties in interest Johnson Kinsey, Inc., Edward Allen Wenz, Jr., Mary L. Johnson, Paul Kinsey, James M. J...
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Opinion Appellant was convicted of battery resulting in serious injury (Pen. Code §§ 242 and 243, subd. (d)), for inflicting a brutal and cowardly beating upon a man considerably smaller and 25 or 30 years older than himself. The victim of the battery was Roy Hunt, who, on the evening of August 31, 1989, “had a barbeque” at his house with Linda Graves and appellant. Graves was at that time rent...
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Opinion In this case we hold it was error to set aside an information solely because the defendant was represented at his preliminary hearing by a deputy public defender, who thereafter discovered for the first time that a prosecution witness had previously been represented by the public defender’s office. We conclude no substantial right of the defendant was denied at the preliminary hearing, ...
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The Tax Court held that the crediting of overpayments made by a taxpayer who has elected to pay estate taxes in installments pursuant to 26 U.S.C. § 6166 is governed by 26 U.S.C. § 6403. The Executrix appeals on the ground that the tax deferring benefits of section 6166 can be lost only under certain provisions within that section and thus section 6166 bars application of section 6403. We affirm. ...
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ORDER Upon the vote of a majority of nonre-cused regular active judges of this court, it is ordered that this case be reheard by the *1517 en banc court pursuant to Circuit Rule 35-3. ...
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James Jeffrey Grady, a federal prisoner, appeals pro se the district court’s denial of his motion brought pursuant to 28 U.S.C. § 2255. The district court held that Grady’s claims were covered by § 2255 but denied the motion without an evidentiary hearing. We affirm. I On May 26, 1987, Grady was charged with two counts of bank robbery, in violation of 18 U.S.C. § 2113(a). The same day, he ple...
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There’s a simple way for the police to avoid many complex search and seizure problems: Get a search warrant. Had they obtained a search warrant in this case — as they could well have — there would have been no motion to suppress, no hearing, no objection at trial and no thorny issues for us to resolve on appeal. But they didn’t. So once again we consume a few pages of the Federal Reporter analyzi...
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Hawaii provides free no-fault automobile insurance to all public assistance recipients. The Secretary of Health and Human Services (Secretary) ruled that Hawaii’s free, no-fault program violates section 1903(o) of the Social Security Act because it excludes medical coverage for welfare recipi*899ents and thus places Medicaid in the role of primary payer. The result of the Secretary’s ruling was th...
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Hydro Systems, Inc. appeals the district court’s grant of summary judgment against it in its action for breach of an insurance contract and breach of the covenant of good faith and fair dealing. This court has diversity jurisdiction over the appellant’s timely appeal. 28 U.S.C. § 1332. We affirm the judgment of the district court. BACKGROUND Appellant Hydro Systems, Inc. (“Hydro”) man...
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929 F.2d 1404 59 USLW 2634, 59 USLW 2647, 1991-1 TradeCases 69,395,19 Fed.R.Serv.3d 644 Vinod C. BHAN, C.R.N.A., Plaintiff-Appellant,v.NME HOSPITALS, INC., a Delaware Corp., dba: MantecaHospital, National Medical Enterprises, Inc., a NevadaCorp., California Society of Anesthesiologists, Inc., aCalifornia Corp., John E. Menaugh, Yong Suk, M.D.,Defendants-Appellees. Nos. 87-2727, 87-2...
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929 F.2d 465 Reese GWILLIM, Plaintiff-Appellant,v.CITY OF SAN JOSE, Joan Gallo, Individually and in HerCapacity as City Attorney for the City of San Jose, JosephMcNamara, Individually and in His Capacity as Police Chieffor the City of San Jose, Defendants-Appellees. No. 89-16403. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 15, 1991.Decided March 25, 1991...
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Opinion This lawsuit presents the issue of whether the parents of a minor who impregnates his girlfriend are liable for civil damages under Civil Code 1 section 1714.1 resulting from the ensuing birth of the child. Facts In 1985, when they were both minors, Cynthia M. and Rodney E. had a dating relationship. In March 1986, Cynthia, then 16 years old, gave birth to a c...
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Opinion After the trial court denied his motion to suppress evidence (Pen. Code, 1 § 1538.5) produced as a result of an *1051 impoundment inventory search of his car, Luis Fernando Aguilar (Aguilar) pleaded guilty to one count of possessing stolen property (§ 496). The court suspended imposition of sentence and granted him two years’ probation. He appeals, contending the court erred in deny...
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Opinion Appellant challenges the sufficiency of the evidence to sustain the findings in his juvenile court proceeding. The court found appellant conspired to violate Penal Code sections 240 (assault), 245 (assault with a deadly weapon), and 415, subdivision (1) (fighting and challenging to fight). 1 The overt act alleged and found was that appellant entered a van with members o...
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Opinion Under Probate Code sections 2580 through 2586 a superior court may, upon the petition of any interested person and after consideration of all relevant circumstances, authorize or require a conservator to take actions of various kinds with respect to the conservatorship estate. In essence the statute permits the court to substitute its judgment for that of a conservatee. Wells...
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ORDER RE DISCOVERY The court held a discovery hearing in the above captioned case on March 7, 1991. Having considered the parties’ oral and written submissions, and having conducted an in camera review of certain documents, the court hereby enters the opinion and the orders that follow. Introduction Plaintiffs’ motion to compel raises issues of first impression that have important implications ...
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*892ORDER On March 26, 1990, Harris filed his third federal petition for a writ of habeas corpus. This petition alleged the following grounds for relief: (1) the state denied Harris his constitutional right to competent psychiatric assistance under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); (2) Harris was denied the effective assistance of counsel; (3) newly discovered evi...
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Paul K. Raditch appeals the district court’s denial of a writ of mandamus, the dismissal of his complaint, and the award of summary judgment against him on the Government’s counterclaim. This court has jurisdiction of the timely appeal. 28 U.S.C. § 1291. We affirm. *479 BACKGROUND Mr. Raditch injured his back in 1974 while working as a clerk-machine operator for the United St...
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Opinion In this insurance coverage dispute, Lynette C. (Lynette) appeals from a summary judgment in favor of National Union Fire Insurance Company (National). The only issue on appeal is whether the foster parents’ liability insurance policy issued by National affords coverage to Debra Lopes (Debra), Lynette’s foster mother who negligently failed to protect Lynette from sexual molestation...
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228 Cal.App.3d 1088 (1991) 279 Cal. Rptr. 388 In re GEORGE B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. GEORGE B., Defendant and Appellant. Docket No. C008027. Court of Appeals of California, Third District. March 25, 1991. *1090 COUNSEL Richard L. Phillips and Barbara Michel, under appointments by the Court of Appeal, for Defendant and Appellant. Joh...
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Concurring and Dissenting.—I concur in the judgment as to guilt and death eligibility. After review, I have found no error warranting reversal on those issues.1 I dissent from the judgment, however, as to the penalty of death. My reasons are two in number. The first is that the admission of the evidence of the Missouri homicide was reversible error. As to whether or not error was committed, the fa...
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Opinion Plaintiffs and appellants Marie Abou-Jaoude (Marie), Antoine Abou-Jaoude (Antoine) and Salwa Abou-Jaoude (Salwa) allegedly received rude or outrageous treatment at Los Angeles International Airport from defendant and respondent Karen Patterson (Patterson), a ticket agent of defendant and respondent British Airways. Appellants’ first amended complaint asserted four causes of action seeki...
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Opinion Defendant, who was convicted of second degree murder and false imprisonment, contends that the court made numerous erroneous rulings relating to the rejection of requested instructions, the use of prior arrest reports, and various sentencing errors. Since we conclude that the court improperly refused to give an involuntary manslaughter instruction, we reverse the murder conviction and a...
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delivered the opinion of the Court. When the events in this case occurred, the Home Owners’ Loan Act of 1933, 12 U. S. C. §§ 1461-1470,1 provided for the *318chartering and regulation of federal savings and loan associations (FSLA’s). Section 1464(a) authorized the Federal Home Loan Bank Board (FHLBB) “under such rules and regulations as it may prescribe, to provide for the organization, incorpora...
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ORDER It is ordered that the briefs of the appellants, R.G. Reynolds Enterprises, Inc., and Richard Reynolds, be returned to counsel for failure to comply with Fed.R.App.P. 28(a)(3) which requires a statement of the facts relevant to the issues presented for review with appropriate references to the record. Appellants' brief contains no references to the record. Moreover, appellants’ excerpts...
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American Broadcast Companies, Inc. appeals the district court’s judgment, following a jury trial, in favor of Frank Boehm in Boehm’s wrongful termination action. Jurisdiction The district court had diversity jurisdiction under 28 U.S.C. § 1332. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. The appeal was timely filed. Issues 1. Did ABC’s job offer to Boehm cut...
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928 F.2d 1481 Thomas E. CREECH, Petitioner-Appellant,v.A.J. ARAVE, Warden, Idaho State Penitentiary; Al Murphy,Director, Idaho State Board of Corrections; JimJones, Attorney General, State of Idaho,Defendants-Appellees. No. 86-3983. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 6, 1988.Submission Deferred Aug. 25, 1988.Resubmitted July 12, 1990.Decided ...
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delivered the opinion of the Court. This case requires us to clarify the extent of copyright protection available to telephone directory white pages. i — i Rural Telephone Service Company, Inc., is a certified public utility that provides telephone service to several communities in northwest Kansas. It is subject to a state regulation that requires all telephone companies ...
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Opinion Ian Dominguez and Frank Patrick Dominguez appeal from a judgment entered upon the granting of motions for summary judgment filed by respondents the City of Fairfield and the Redevelopment Agency of the City of Fairfield (hereafter collectively referred to as Fairfield), and Solano Irrigation District (SID). This wrongful death action arises from the tragic death of appellants’ dec...
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Opinion Raymond Arthur Shields’s appeal presents the issue whether a felony conviction of a minor in adult court, followed by successful completion of a commitment to the California Youth Authority and honorable discharge working a release from “all penalties and disabilities” pursuant to Welfare and Institutions Code section 1772, 1 may support a five-year serious felony enhan...
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Opinion In this case we conclude that an employee who is terminated in retaliation for reporting to his or her employer reasonably suspected *1120 illegal conduct by other employees that harms the public as well as the employer, has a cause of action for wrongful discharge. 1 Factual and Procedural Summary Because this case challenges the sustaining of a dem...
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228 Cal.App.3d 1128 (1991) 279 Cal. Rptr. 459 AWARD METALS, INC., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LUIS HERNANDEZ, Real Party in Interest. Docket No. B053308. Court of Appeals of California, Second District, Division Four. March 26, 1991. *1131 COUNSEL Tobin, Lucks & Goldman and Thomas J. Rafacz for Petitioner. No appearance for Respondent. Gilbert R. Geili...
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Opinion The plaintiffs and appellants Wilshire Bundy Corporation, a California corporation, doing business as Sy’s Deli, Murray Shulman and Seymour Levy (collectively plaintiffs) appeal an order of dismissal made under Code of Civil Procedure sections 583.310 and 583.360 1 for failure to bring the case to trial within five years. Such dismissal order was entered in favor of the...
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ORDER A-Plus Roofing, Inc. has petitioned for review of an administrative law judge’s (AU) order imposing sanctions under the Immigration and Nationality Act, 8 U.S.C. § 1324a. Respondent Immigration and Naturalization Service moves to dismiss the appeal for lack of jurisdiction, arguing that the petitioner failed to file the petition within 45 days of the final order as required by 8 U.S.C. § ...
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929 F.2d 490 136 L.R.R.M. (BNA) 2908, 118 Lab.Cas. P 10,644 EL TORITO-LA FIESTA RESTAURANTS, INC., Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent,Hotel Employees and Restaurant Employees Union, Local 100,of New York, New York and Vicinity, AFL-CIO("Local 100"), Respondent-Intervenor.NATIONAL LABOR RELATIONS BOARD, Petitioner,v.EL TORITO-LA FIESTA RESTAURANTS, Respondent. Nos....
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Leo Sheppard is a former employee of Apache County, Arizona, who worked with the road maintenance crew on the Navajo Indian reservation. He was fired by the defendants, who are the members of the Apache County Board of Supervisors, because he filed petitions declaring his intention to run for a seat on the Board. The defendants fired him pursuant to a May 16, 1988, amendment to the Apache Count...
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Opinion Kirk Migdal, a deputy public defender who was attorney of record for defendant Mark Outler Tabb in a felony matter, was sanctioned $75 by the municipal court pursuant to Code of Civil Procedure section 177.5 1 when he failed to timely appear at Tabb’s scheduled preliminary hearing. In an appeal to the appellate department of the superi- or court, Migdal challenged the a...
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*1109Opinion A bar charters an excursion ship for the purpose of having a Halloween party. The ship is owned and operated by a common carrier. During the party a passenger is killed by a bullet fired from a handgun which struck the deck after falling from beneath the costume of another passenger who is a peace officer authorized to carry a concealed weapon while not on duty. The question presente...
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Opinion Here we hold that the time period for an extended commitment of a mentally disordered sex offender (MDSO) under Welfare and Institutions Code 1 section 6316.2 includes both inpatient and outpatient status. Allan Roy Gunderson was committed as an MDSO in 1980 pursuant to section 6300 et seq. 2 He appeals an order revoking his outpatient status. We find his commitment has terminated...
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Opinion Defendant was convicted in different cases as follows: In case number 79827, defendant pled guilty to one count of possession of heroin (Health & Saf. Code, § 11350) committed on March 30, 1987. In case numbers 83725 and 85378, consolidated for trial, defendant was found guilty of two counts of possession of a concealable firearm by an ex-felon (Pen. Code, 1 §...
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The defendant appeals the denial of his motion to suppress and his sentence. We affirm. I State police had been investigating Jerry Paul Lillard for possible methamphetamine manufacturing and in November 1988 placed him under 24-hour surveillance. On November 17, three officers, in two separate cars, followed Lillard’s van when it left his rented house. The van was traveling 70 to 75 m.p.h. d...
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ORDER This case is resubmitted for decision on March 8, 1991. OPINION In this interlocutory appeal, the government appeals the district court’s order suppressing evidence obtained by using a jackhammer to search beneath a concrete slab located on premises for which a search warrant had been issued. We have jurisdiction pursuant to 18 U.S.C. § 3731 (1988). We reverse. FACTS On June 2, 19...
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Opinion Appellant Edith M. appeals from a disposition order removing her two-year-old son, Rodger H., from her custody pursuant to dependency proceedings under Welfare and Institutions Code section 300, subdivision (b).1 (Undesignated statutory references are to the Welfare and Institutions Code.) She contends on appeal (1) she was not given adequate notice of the grounds upon which Rodger was rem...
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Opinion Facts On November 28, 1989, the County of Riverside (County), by and through its board of supervisors, adopted Resolution No. 89-536 and certified Environmental Impact Report No. 217 (EIR No. 217), thus finalizing approval of Comprehensive General Plan Amendment No. 52, commonly known as the Southwest Area Community Plan or “SWAP,” which covers approximately 210,000 acres or 320 squar...
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Opinion —We granted review to resolve an issue that has engendered conflicting appellate decisions: whether a plaintiff is entitled to receive prejudgment interest under Civil Code section 3291 (hereafter section 3291) on an award of compensatory and punitive damages for an insurer’s breach of the implied covenant of good faith and fair dealing. Section 3291 allows the plaintiff in “any action br...
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Opinion Plaintiff sued defendant, alleging she suffered personal injuries and loss of property when personal property was stolen from her while she was a guest at a hotel owned and operated by defendant. Following settlement of plaintiff’s personal injury claim, a court trial was held on her claim for loss of personal property. Stipulating to the underlying facts, the parties asked the court to...
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*1275 Opinion At issue in this case are the terms of an insurance policy purchased by appellant John D. Perzik, M.D., from respondent St. Paul Fire & Marine Insurance Company, and the extent of respondent’s duty to defend appellant in the context of a federal criminal grand jury investigation and subsequent proceedings. Factual and Procedural Background In 1986, app...
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Opinion Plaintiffs are Brian Sharp, an insured driver, Stephen Sharp, his father, and Juan Heredia, an injured claimant, who *1349 obtained a $1.1 million judgment for personal injuries resulting from Brian Sharp’s negligence. Together, they sued Brian Sharp’s insurance company, Farmers Insurance Exchange (Farmers), asserting statutory, tort, and contract claims, including br...
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Opinion —We granted review to determine whether Government Code section 818 1 prevents the state from imposing statutory civil penalties pursuant to the Long-Term Care, Health, Safety, and Security Act of 1973 (Health & Saf. Code, § 1417 et seq.; hereafter the Act) 2 on a state-licensed, county-operated, long-term health care facility. We conclude that it does not. ...
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Appellant Jorge Perez-Magana appeals the district court’s imposition of a 30-month sentence for transporting illegal aliens, which included an upward departure from the 6-12 month sentencing range suggested by the Sentencing Guidelines. While appellant concedes that the district court could depart and that it explained its departure, he argues that its degree of departure was unreasonable and t...
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Nichols was convicted in state court of kidnapping and assault. The court sentenced him to ten years for kidnapping and six months for assault. It imposed an additional ten years, to run consecutively to the other sentences, for using a firearm while engaged in the commission of an offense, under the Montana weapons enhancement statute. 1 Having exhausted his state court remedies, Nichols pet...
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Appellee John Joseph Hennessy was convicted in Arizona state court of attempted armed robbery, burglary, and two counts of class 2 kidnapping. After trial, his appellate attorney discovered that the trial judge had not instructed the jury on an element that had not been contested of the crime of kidnapping. Hennessy then filed with the state trial court a petition for post-conviction relief bas...
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delivered the opinion of the Court. This case requires us to clarify the application of the Sherman Act to municipal governments and to the citizens who seek action from them. I Petitioner Columbia Outdoor Advertising, Inc. (COA), a South Carolina corporation, entered the billboard business in the city of Columbia, South Carolina (also a petitioner here), in the 1940’s. By 1981 i...
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delivered the opinion of the Court. Jury service is an exercise of responsible citizenship by all members of the community, including those who otherwise might not have the opportunity to contribute to our civic life. Congress recognized this over a century ago in the Civil Rights Act of 1875, which made it a criminal offense to exclude persons from jury service on account of their race. See 18 U....
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*1315 Opinion Petitioner/appellant Donnie Sullivan appeals the denial of her petition for a peremptory writ of mandate sought to compel her employer, respondent Calistoga Joint Unified School District, to reclassify her from a categorically funded teacher to a permanent part-time teacher effective the beginning of the 1987-1988 school year. She contends: (1) the evidence is insuf...
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Plaintiffs, officers and directors of Centennial Savings and Loan Association, were sued in state and federal court for alleged *1423 professional misconduct. Defendants, International Insurance Company and Crum and Forster, refused to cover plaintiffs in these actions under a professional liability policy between them. In the present action, plaintiffs sought a judgment declaring ...
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James M. Hagood brought suit under the qui tarn provision of the False Claims Act, 31 U.S.C. §§ 3729-3733, alleging its violation by the Sonoma County Water Agency (the Water Agency). The district court dismissed his third amended complaint for failure to state a cause of action. On appeal, the United States filed a brief as amicus curiae, arguing that the district court was incorrect in its re...
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The government appeals the district court’s grant of Patrick Greany’s motion to suppress evidence seized pursuant to a federal search warrant. We reverse. JURISDICTION The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 18 U.S.C. § 3731. STANDARD OF REVIEW We review de novo the district court’s finding that the magistrate’s dete...
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Opinion We hold that police officers cannot rely on the “good faith exception” to validate an arrest if the arrest warrant is negligently delayed in being recalled and the warrant is erroneously shown as still outstanding. Ralph Foster Ivey was convicted in a court trial of possession of cocaine (Health & Saf. Code, § 11350) and was found to have served a prior prison term (Pen. Code...
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228 Cal.App.3d 1500 (1991) 279 Cal. Rptr. 647 THE PEOPLE, Plaintiff and Respondent, v. ROBERT ALLEN HOGUE, Defendant and Appellant. Docket No. F013804. Court of Appeals of California, Fifth District. April 1, 1991. *1502 COUNSEL Jerome McGuire, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorne...
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228 Cal.App.3d 1417 (1991) 279 Cal. Rptr. 547 THE PEOPLE, Plaintiff and Appellant, v. AMEEN H. GAZALI, Defendant and Respondent. Docket No. A048711. Court of Appeals of California, First District, Division Three. March 29, 1991. *1418 COUNSEL John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Richard B. Iglehart, Chief Assistant Attorney General, John H. Sugiyama, Assistant Attorney Ge...
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Opinion After appellant Linda Shepard, as a public officer, was held to answer on the charges by a magistrate at the preliminary hearing, an information was filed alleging in counts I, II and IV, violations of Penal Code 1 section 424, subdivision 1, misappropriation of public moneys; in count III, a violation of section 424, subdivision 4, fraudulent falsification of public money account; in...
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53 Cal.3d 257 (1991) 807 P.2d 418 279 Cal. Rptr. 576 MICHAEL WALKER, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; RESIDENTIAL CONSTRUCTION ENTERPRISES et al., Real Parties in Interest. CHARLENE WHITE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; CHARLES D. SLATON et al., Real Parties in Interest. Docket No. S014626. Supreme Court of California. Apri...
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53 Cal.3d 245 (1991) 806 P.2d 1360 279 Cal. Rptr. 325 KENNEDY WHOLESALE, INC., Plaintiff and Appellant, v. STATE BOARD OF EQUALIZATION, Defendant and Respondent. Docket No. S013840. Supreme Court of California. April 1, 1991. *247 COUNSEL Munger, Tolles & Olson, Ronald L. Olson, Allen M. Katz, Carolyn B. Kuhl, Mark B. Helm, Lester J. Levy, Ball, Hunt, Hart, Brown & Baerwitz, *248 John R. ...
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—I dissent for the reasons stated by Justice Mosk in part II of his dissenting opinion. I must also dissent for an additional reason. It is manifestly unfair for the majority to change the rules after the votes are in. In People v. Smith (1983) 34 Cal.3d 251 [193 Cal.Rptr. 692, 667 P.2d 149], we established that multifaceted criminal law reform initiatives would be applied only to crimes committed...
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Opinion In a dissolution of marriage proceeding, the family law department of the San Joaquin County Superior Court entered a deferred sale of home order (Civ. Code, §4700.10; former Civ. Code, §4800.7) which awarded appellant (wife) exclusive occupancy of the former family residence for three years and expressly reserved jurisdiction over its ultimate “valuation and disposition.” Th...
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Opinion This case presents the question of what remedies are available to a lessee-buyer in the purchase and sale of equipment financed by a lease arrangement when the equipment is defective and the financing lessor has disclaimed all express and implied warranties to the equipment. We hold that a financing lessor may validly disclaim all warranties, provided the lessee-buyer has an adequ...
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Opinion We issued an alternative writ of mandate in these three consolidated proceedings to address a single issue: Does the California *1490 Community Redevelopment Law (Health & Saf. Code, § 33000 et seq.— hereinafter cited as the CRL and/or by statutory section number only) contain an administrative review procedure which must be pursued and exhausted before a party is ent...
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228 Cal.App.3d 1508 (1991) 279 Cal. Rptr. 566 In re RAYMOND M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. RAYMOND M., Defendant and Appellant. Docket No. F013400. Court of Appeals of California, Fifth District. April 2, 1991. *1509 COUNSEL Ann Jory, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp and Daniel E....
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228 Cal.App.3d 1456 (1991) 279 Cal. Rptr. 858 THE PEOPLE, Plaintiff and Respondent, v. ROBERTO SIERRA MARTINEZ, Defendant and Appellant. Docket No. F012153. Court of Appeals of California, Fifth District. March 29, 1991. *1458 COUNSEL Douglas C. Littlejohn and Richard G. Rumery, under appointments by the Court of Appeal, for Defendant and Appellant. *1459 John K. Van de Kamp and Daniel E. Lungren...
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Opinion —This is an appeal from a judgment of death under the 1978 death penalty law (Pen. Code, § 190.1 et seq.; all further statutory references are to this code unless otherwise indicated). Following a change of venue from Sierra County to San Joaquin County, defendant Bruce Wayne Morris was convicted by a jury of the first degree murder (§ 187) and robbery (§211) of Rickey Van Zandt. The jury...
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929 F.2d 526 1991-1 Trade Cases 69,394 UNITED STATES of America, Plaintiff-Appellant,v.BLUE MOUNTAIN BOTTLING CO. OF WALLA WALLA, d/b/a 7-UpBottling Co. of Walla Walla, also d/b/a 7-UpBottling Co. of Tri-Cities, Defendant-Appellee.UNITED STATES of America, Plaintiff-Appellant,v.COCA-COLA BOTTLING CO.--YAKIMA, also d/b/a Coca-ColaBottling Co.--Tri Cities, Defendant-Appellee.UNITED STATES ...
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OVERVIEW Alan J. Dring was convicted of importing marijuana, possession with intent to distribute, and related conspiracy charges. On appeal, Dring alleges that the district court erred by (1) barring presentation of evidence regarding his truthful character; (2) allowing in-court identification of Dring by three witnesses, each of whom initially had been shown but a single photograph of D...
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OVERVIEW Edgar Quan-Guerra was found guilty of possessing a weapon in prison. The district court fined Quan-Guer-ra $500. Quan-Guerra appeals his fine. We affirm. FACTUAL AND PROCEDURAL HISTORY Edgar Quan-Guerra was serving time in prison when he was found in possession of a shank. After the jury convicted him for this unlawful possession, the district court sentenced him according to the S...
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*1590 Opinion The People seek a writ of mandate directing the respondent court to honor their peremptory challenge under Code of Civil Procedure section 170.6. In People v. Superior Court (Hall) (1984) 160 Cal.App.3d 1081 [207 Cal.Rptr. 131], we held that for purposes of Code of Civil Procedure section 170.6, the assignment of a case to a particular department, rather than to the judge ...
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Opinion Plaintiff and cross-defendant Sea Castle Apartments, Ltd. (Sea Castle), and defendant and cross-complainant Santa Monica Rent Control Board (Board) each appeal from a judgment entered following an order granting Board’s motion for summary judgment. In the published portion of this opinion, we determine that, where the maximum allowable rental rates established by local ordinance have been ...
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Opinion In this appeal, Intel Corporation and Associated Claims Management, Inc. (collectively referred to as Intel) challenge the trial court’s dismissal of their complaint for failure to comply with the trial court delay reduction (fast track) rules of the Los Angeles Superior Court. We conclude that the governing statute gives discretion to dismiss an action under appropriate circumstances. ...
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930 F.2d 695 UNITED STATES of America, Plaintiff-Appellee,v.Juana Espericueta DE GROSS, Defendant-Appellant. No. 87-5226. United States Court of Appeals,Ninth Circuit. April 4, 1991. Prior report: 9th Cir., 913 F.2d 1417. Before WALLACE, Chief Judge, BROWNING, HUG, TANG, SCHROEDER, FLETCHER, FARRIS, PREGERSON, ALARCON, POOLE, D.W. NELSON, CANBY, NORRIS, REINHARDT,...
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929 F.2d 530 ARADIA WOMEN'S HEALTH CENTER; Washington State NationalAbortion Rights Action League; Planned Parenthoodof Seattle King County, et al.,Plaintiffs-Appellees,v.OPERATION RESCUE; Richard Vicknair, et al., Defendants,Denise R. Knight; Kimberly K. Bailey; Theresa E. Clark, etal., Respondents-Appellants. No. 90-35110. United States Court of Appeals,Ninth Circuit. Argued...
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Jason Houser appeals his conviction for conspiracy to distribute methamphetamine, claiming that the government failed to give the defense required discovery materials, that the elements of conspiracy were not established, and that evidence was improperly admitted by the district court. In addition, Houser claims that the career offender sentence he received was improper under the federal sentenci...
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*1596 Opinion In this first impression case which has significant fiscal impact for county government, its employees, and retirees, we hold (1) Government Code section 53205.2 does not require a county to provide health care benefits to retirees which are equal to those provided to active employees, and (2) that Government Code section 25263 exempts county’s self-insured health benefit plan f...
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Opinion —In 1975, the Legislature enacted the Medical Injury Compensation Reform Act (MICRA) in response to a health care crisis caused by a rapid increase in premiums for medical malpractice insurance. Among MICRA’s many provisions is one that requires a plaintiff, before filing an action based on a health care provider’s professional negligence, to give the defendant at least 90 days’ notice of...
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Opinion Appellant, a Santa Monica landlord, petitioned for writ of mandate to overturn the Santa Monica Rent Control Board’s (Board) determination that parking is a base amenity for 38 of the 46 rent controlled units in appellant’s building. The superior court applied the substantial evidence test and upheld the Board’s determination. This appeal followed. Under the facts of this case, we...
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930 F.2d 1390 59 USLW 2623, 67 Ed. Law Rep. 124 Thomas DAVIES, Plaintiff-Appellant,v.GROSSMONT UNION HIGH SCHOOL DISTRICT; Monte Vista HighSchool; Jennifer Eliott; Robert Pyle; Paul Martin;Christopher Bogden; Gerald Gordinier; and Does 1 through20, inclusive, Defendants-Appellees. No. 91-55140. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 5, 199...
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The National Labor Relations Board (“Board”) has petitioned for enforcement of its bargaining order issued to Bakers of Paris, Inc. (“Bakers” or “Company”), and reported at 288 N.L.R.B. 991 (1988). The issues before us concern the proper means of confronting non-English-speaking witnesses with prior statements written in English, and the use of interpreters in administrative proceedings. Bakers...
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930 F.2d 696 NEW HAMPSHIRE INSURANCE COMPANY, Plaintiff-Counterdefendant-Appellee.v.Albert VIEIRA, and Vieira Drywall and Taping Company, Inc.,Defendants-Counterclaimants-Appellants. No. 89-16291. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 15, 1991.Decided April 8, 1991. Stephen J. Kottmeier, Hopkins & Carley, San Jose, Cal., for defendan...
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228 Cal.App.3d 1608 (1991) 279 Cal. Rptr. 16 GREG FURTADO, Plaintiff and Respondent, v. KENT SCHRIEFER, Defendant and Appellant. Docket No. A048504. Court of Appeals of California, First District, Division One. April 8, 1991. *1611 COUNSEL James D. Biernat for Defendant and Appellant. Gillin, Jacobson & Ellis and Guy D. Borges for Plaintiff and Respondent. OPINION DOSSEE, J. The instant appeal ar...
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ORDER AND OPINION ON MOTION FOR SUMMARY JUDGMENT Defendants have moved for summary judgment on all causes of action. The motion has been opposed, argued, and sub *601 mitted for decision. The court has reviewed the moving papers, the opposing papers, the very substantial factual record filed in support of and in opposition to the motion, 1 the arguments of counsel,...
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ORDER This matter is before the court on cross-motions for summary judgment. For the reasons I explain below, plaintiffs’ motion for summary judgment is DENIED, the motion of defendant United States for summary judgment is GRANTED, and the motion of defendant Orland Unit Water Users’ Association (“OUWUA”) is GRANTED in part and DENIED in part. I BACKGROUND The instant actio...
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*28 Opinion Plaintiff, an attorney miffed at the imposition of sanctions, attempted to recoup the loss by suing opposing counsel in a new action for breach of contract and fraud. Defendants petitioned for extraordinary relief when their demurrer and motion to strike were overruled. They are entitled to it. I The present lawsuit had its genesis in a Los Angeles Superior ...
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ORDER Jury selection in this case was conducted by a magistrate, rather than a district judge. Accordingly, the conviction is REVERSED. Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989); United States v. France, 886 F.2d 223 (9th Cir.1989), affirmed without opinion by an equally divided Court, — U.S. —, 111 S.Ct. 805, 112 L.Ed.2d 836 (1991) (per curiam). Our previ...
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Opinion Defendant was convicted after jury trial of assault with intent to commit rape, in violation of Penal Code section 220, 1 and of false imprisonment with violence or menace, in violation of section 236. He admitted two prior felony offenses, namely, robbery and assault with a deadly weapon, both within the meaning of section 667, and they were found true by the trial court. Defendant w...
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Opinion Appellants are the surviving family members of decedent, Renee Lopez. They include decedent’s mother, Dolores Lopez, who is named individually and as administratrix of decedent’s estate, and six surviving siblings, four of whom were adults at the time decedent died. Respondent is Ralph Sikkema, who is named individually and doing business as Sikkema Dairy. The issues on appeal are...
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228 Cal. App. 3d 1601 (1991) 279 Cal. Rptr. 877 A. JOSEPH KILLIAN et al., Plaintiffs and Appellants, v. WILLIAM H. MILLARD et al., Defendants and Respondents; THOMAS F. CAMP et al., Claimants and Appellants. Docket No. A036176. Court of Appeals of California, First District, Division One. April 8, 1991. *1603 COUNSEL Thomas F. Camp, in pro. per., MacGregor & Buckley, John F. MacGregor, Daniel...
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Opinion Plaintiff, Jerome B. Rosenthal, appeals from three orders of dismissal, entered after the sustaining without leave to amend of demurrers to his first amended complaint, which sought relief on account of allegedly wrongful conduct by defendants in connection with his disbarment proceedings. (See Rosenthal v. State Bar (1987) 43 Cal.3d 612 [238 Cal.Rptr. 377, 7...
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*1634 Opinion I. Introduction Defendant Hana Martins appeals from a judgment of conviction for grand theft of personal property in violation of Penal Code section 487, subdivision l. 1 The sole contention of defendant is that the motion to suppress evidence pursuant to section 1538.5 should have been granted. We determine that defendant could not even contest the validity of the search an...
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Opinion This appeal from an order committing Steven O. to the California Youth Authority raises several interesting issues. We initially hold that a juvenile court referee is disqualified from hearing a supplemental petition alleging violation of probation terms in an earlier order resulting from a petition prosecuted by the referee in his previous role as a‘ deputy district attorney. Bec...
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OPINION ON CERTIFICATION OF CLASS AND VOTING ON BEHALF OF MEMBERS OF CLASS I. INTRODUCTION The motions before the Court raise two issues related to the application of Bankruptcy Rule 7023 to a class proof of claim. The first issue is whether the class should be certified on the class proof of claim filed in this case on behalf of certain securities purchasers. The second issue is whe...
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OPINION Before PERRIS, VOLINN, and OLLASON, Bankruptcy Judges. After the debtor defaulted on certain obligations to the appellees and filed bankruptcy, the appellees caused a post-petition foreclosure sale of stock in the debtor held by the debtor’s sole shareholder, Anthony Teuber, which stock was pledged to secure the performance of the debtor’s obligation. The debtor moved to void...
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919 F.2d 573 Mike HERNANDEZ, Plaintiff-Appellant,v.George F. DENTON, Director of Corrections, Paul J. Morris,Warden, Eddie Ylst, in His Official and IndividualCapacity, Mr. Hartman, Defendants-Appellees. Nos. 86-2139, 87-1693, 87-1694. United States Court of Appeals,Ninth Circuit. Nov. 21, 1990. Richard W. Nichols, McDonough, Holland & Allen, Sacramento, Cal., for pl...
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Mauro Restrepo, Manuel Lupio, and Maureen McGinley were convicted of conspiracy to distribute, and possession of, eight kilograms of cocaine. Restrepo and Lupio seek reversal on the grounds that the evidence is insufficient to support the judgment of conviction. Restrepo also contends that he was incorrectly denied a two-point reduction for acceptance of responsibility under the Sentencing Guidel...
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We must determine whether a habeas petitioner’s federal constitutional rights were violated by a state court’s failure to hold a pre-trial competency hearing. I Petitioner Mike Hernandez was arrested following the shooting death on January 16, 1982, of a man who, at least in Hernandez’s mind, was having an affair with Hernandez’s wife. The evidence tying Hernandez to the killing was s...
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914 F.2d 1136 59 USLW 2169, 17 Fed.R.Serv.3d 801 Patrick TOWNSEND, Karen Townsend, Plaintiffs-Appellants,v.HOLMAN CONSULTING CORPORATION, Defendant,andTowers, Perrin, Forster & Crosby; Trust Services ofAmerica, Inc.; American Insurance Administrators;International Union of OperatingEngineers, Local 12, AFL-CIO,Defendants-Appellees. Nos. 87-5825, 87-6154. United States Court o...
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Opinion This is an appeal from a permanency plan order of the juvenile court made pursuant to Welfare and Institutions Code section 366.25.1 The permanency plan was to refer the dependent minor child, Johnny M. (minor), for adoption. The order was made after the court found that the reunification efforts made by respondent, the County of Los Angeles (County), on behalf of the minor and his mother ...
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Opinion I. Statement of the Case A two-count information filed in the Alameda County Superior Court on June 3, 1986, charged appellant and Wayne Winchester with the murder *1621 (Pen. Code, § 187) and robbery (Pen. Code, § 211) of John Fontanot. As to the first count, the information alleged as a special circumstance against appellant that the murder was committed during the course of a rob...
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Opinion A jury convicted defendant Alfred David Fiscalini of driving under the influence of alcohol causing injury to more than one victim (Veh. Code, §§ 23153, subd. (a), 23182), being under the influence of a controlled substance (Health & Saf. Code, § 11550), driving with a suspended license (Veh. Code, § 14601.1, subd. (a)), and possessing 28.5 grams or less of marijuana (Health & Saf...
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929 F.2d 1449 13 ITRD 1361, 21 Envtl. L. Rep. 20,843 EARTH ISLAND INSTITUTE, a California nonprofit corporation;Marine Mammal Fund, a California corporation;David R. Brower, Plaintiffs-Appellees,v.Robert A. MOSBACHER, Secretary of Commerce; John Knauss,Dr., Administrator, National Oceanic and AtmosphericAdministration; William W. Fox, Jr., AssistantAdministrator, National Marine Fisherie...
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Juvenile Male appeals the district court’s judgment of juvenile delinquency pursuant to 18 U.S.C. §§ 5031-5042 based upon the finding that he committed an assault resulting in serious bodily injury in violation of 18 U.S.C. § 113(f). We affirm. JURISDICTION The district court had jurisdiction pursuant to 18 U.S.C. § 1153. We have jurisdiction pursuant to 28 U.S.C. § 1291. ISSUE ...
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A jury convicted Francis Ravel (“Ravel”) on two of three counts of possessing stolen goods. Ravel now appeals, arguing that the district court erred by denying his motion to dismiss all but one count, by denying his request for the use of expert testimony and rejecting his requested jury instruction on the Uniform Commercial Code (“UCC”), by failing to answer properly a question posed by the ju...
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MEMORANDUM DECISION This is an action under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). 42 U.S.C. § 9601 et seq. Plaintiff seeks to recover costs incurred in removing asbestos dust from leased office space in a commercial building. Defendants, the owners of the building, have moved to dismiss for failure to state a claim. F.R.Civ....
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125 B.R. 19 (1991) In re Francisco P. PACANA, Debtor. Francisco P. PACANA, Appellant, v. Marcalane S. PACANA-SILER, Appellee. B.A.P. No. NC-89-1356 VAsJ, Bankruptcy No. 588-06195-WCMOR. United States Bankruptcy Appellate Panel, of the Ninth Circuit. Argued and Submitted September 21, 1989. Decided March 29, 1991. *20 Richard B. McLaughlin, Salinas, Cal., for appellant. Robert P. Herendeen, Salina...
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Opinion The petitioner, Irwin Memorial Blood Centers, challenges discovery orders providing for the deposition of blood donors who have been implicated as the source of HIV infection. We conclude that the orders violate Health and Safety Code section 199.20, 1 which prohibits the identification of any individual subject to a blood test to detect antibodies to the probable causa...
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*195 Opinion Plaintiffs Kathleen and August Griffin appeal an order enforcing a judicial settlement. We reverse and hold Insurance Code section 11583 1 does not permit defendants to deduct from settlement proceeds an advance payment made to plaintiffs’ insurer-subrogee. Facts On April 13, 1987, defendant David Frank Calistro collided with an automobile driven...
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*201 Opinion Northwest Financial, Inc., a Nevada corporation, appeals a judgment sustaining a demurrer in favor of the State Board of Equalization and San Diego County. Northwest Financial’s complaint revisits equal protection and right to travel constitutional challenges to the real property “acquisition value” taxation system established by Proposition 13, which were rejected b...
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229 Cal.App.3d 134 (1991) 279 Cal. Rptr. 901 In re MARCELLUS L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MARCELLUS L., Defendant and Appellant. Docket No. A048369. Court of Appeals of California, First District, Division Four. April 10, 1991. *137 COUNSEL Christopher E. Judge for Defendant and Appellant. Wilbur F. Littlefield, Public Defender, Lauren...
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Opinion Statement of the Case Defendant James Culcasi (Culcasi), doing business as Rosine’s, a restaurant, appeals from a judgment entered after the trial court granted plaintiff Aim Insurance Company’s (Aim) motion for summary judgment. He claims the court erred in granting the motion. We affirm the judgment. *213 Scope of Review The trial court may proper...
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Opinion Defendants Marcus Schaeffer, M.D. (Schaeffer) and Kearny Mesa Industrial Medical Centers, a California corporation, doing business as Industrial Medical Centers (IMC) appeal from a judgment entered against them and in favor of respondent Robert J. Felton (Felton) in the amount of $67,210. The action arose out of an alleged negligent preemployment physical examination of Felton. ...
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Opinion —Wilbur Jennings was convicted in 1986 of the first degree murders of Linda Johnson, Olga Cannon, and Jacqueline Frazier, and the second degree murder of Karen Robinson. He was also convicted of numerous other felonies against these and three other victims, including a variety of forcible sexual assaults, robberies, arsons, and kidnapping for robbery. In addition, the jury sustained eight...
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Opinion Jack K. Weber appeals the sustaining of a demurrer without leave to amend his opposition to probate of his mother’s will. (Prob. Code, § 8250.) 1 He contends he has standing as an interested person, despite the trial court’s finding the result would be the same whether he is a beneficiary pursuant to the will or receives his share pursuant to intestacy. *24 I The decedent, Sonya...
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ORDER RE ERISA PREEMPTION OF PLAINTIFF’S NEGLIGENCE CLAIM AND PARTIAL REMAND Briefly, this case involves an employee who was severely injured and rendered a quadriplegic in a non-work related accident. Plaintiff’s employer, defendant Assured Content, had obtained group medical insurance for its employees. The insurance was placed by defendant Peter C. Foy and Associates, a broker, and written b...
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Opinion Gene Allen Gibson appeals his convictions by jury trial of causing bodily injury while driving under the influence of alcohol (Veh. Code, §23153, subd. (a))1, and reckless driving causing bodily injury. (§ 23104.) An allegation that he injured more than one person while driving under the influence was found true. (§ 23182.) He contends, inter alia, that *286the enhancement must be reversed...
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This is the second appeal in this attempt to impose antitrust liability upon defendants who, in their official or individual capacities, make and enforce minimum wage rates for apprentices in the performance of electrical contracts within the State of Washington. See Washington State Electrical Contractors Association v. Forrest, 839 F.2d 547 (9th Cir.1988). The Supreme Court granted certiora...
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930 F.2d 738 Robert M. GIRARD and Thomas J. Deef, Plaintiffs-Appellants,v.Ralph D. KLOPFENSTEIN; Conservation Service, an agency ofthe U.S. Department of Agriculture; CommodityCredit Corporation, Defendants-Appellees. No. 89-16669. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 7, 1991.Decided April 15, 1991. Sydney Berde, Doherty, Rumble &...
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OVERVIEW Guadalupe Munoz filed suit against the Secretary of the Department of Health and Human Services (“the Secretary”), alleging that the six-month rule set forth in 42 U.S.C. § 1382c(b) (1983) is unconstitutional. Under the six-month rule, when a married couple, both of whom are eligible for Supplemental Security Income benefits, separate, they are paid benefits at the level set for m...
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Opinion Ronald Raul Romo (appellant) appeals from a judgment of the Superior Court of Santa Cruz County denying his petition for a writ of mandate seeking to prevent the California Department of Motor Vehicles (DMV or respondent) from suspending his California driver’s license based on three convictions for drunk driving within seven years. (Veh. Code, §§ 13352, subd. (a)(5), 23170.) 1 The pe...
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Opinion More than eight and a half years elapsed between the filing of an indictment, charging defendant with murder and conspiracy to *305commit murder, and defendant’s arrest. During the intervening period, defendant was a fugitive living in Venezuela. The People appeal from an order dismissing the charges on the ground defendant was denied a speedy trial as guaranteed by the Sixth Amendment to...
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Opinion A defendant convicted of robbery, false imprisonment, forcible rape with great bodily injury, and unlawful vehicle taking contends on appeal that the trial court erred in imposing a full consecutive prison term for the rape. Procedural History A jury found defendant guilty of robbery (Pen. Code, § 211), 1 false imprisonment (§ 236), forcible rape with great bodily injury (§§ 261, ...
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Opinion This appeal is from summary judgment deciding title to a parcel of land in Concord in favor of the City of Concord (City) and against the Concord and Bay Point Land Company. (C&BPL). 1 We affirm. C&BPL was incorporated in California in 1910. In 1911 C&BPL, for a consideration of $10, conveyed interests in three parcels of land to the Oakland and Antioch Railway, wh...
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Rudolph L. Bertolino sought attorneys fees from the government under Internal Revenue Code § 7430. The Tax Court denied the request. We affirm the Tax Court. FACTS Bertolino filed his federal income tax return for 1985, in which he claimed a net operating loss carryover of $38,102.42 and long term capital gain deductions. The return reported taxable income of $6,243.22 and income tax ...
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C.H.I. appeals the district court’s dismissal for failure to arbitrate its breach of contract claim against Marcus Brothers. C.H.I. argues that the arbitration clause in the Marcus Brothers’ confirmation form is unenforceable because: 1) it is an adhesion contract; 2) C.H.I. did not knowingly consent to arbitration; 3) C.H.I. signed it under economic duress; and, 4) its terms lacked specificity. W...
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Upon his termination from Burlington Northern Railroad (“BN”), George W. Lan-dis challenged BN’s computation of his severance salary. An Interstate Commerce Commission (“ICC”) order guaranteed Lan-dis’ severance salary. After referral to the ICC, the district court adopted the ICC’s interpretation of the merger guarantee and granted summary judgment to BN. The district court also denied Landis rec...
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Appellee John James Badger (“Badger”) was indicted on criminal charges and ordered to post a $100,000.00 bail bond. The bond was posted by third parties. After Badger was convicted, the IRS attempted to levy on the bond for unpaid taxes owed by Badger. The district court ordered the IRS to show cause why the bond should not be exonerated and paid over to those who had posted it. After a hearing, t...
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Craig Hoyungowa appeals the district court’s upward departure from the Sentencing Guidelines in sentencing him for the murder of Dean James, a Bureau of Indian Affairs officer. The district court departed upwardly because of Hoyun-gowa’s criminal history, the psychological impact on James’ family, and the victim’s status as a law enforcement officer. We reverse and remand for resentencing. FACT...
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Opinion Following the denial of his motion to suppress evidence (Pen. Code, §§ 995, 1538.5), Michael Coleman pled guilty to charges of possession of cocaine for sale (Health & Saf. Code, § 11351.5). He appeals from the judgment entered on his plea, suspending sentence and placing him on three years’ probation on condition he serve one hundred twenty days in the county jail. Facts ...
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Opinion Appellant Jose Napoleon Santamaría was convicted by a jury of first degree murder and robbery. (Pen. Code, §§ 187, 211.) 1 The jury found a robbery-murder special circumstance allegation to be true (§ 190.2, subd. (a)(17)(i)); it also found not true a personal knife use enhancement allegation (§ 12022, subd. (b)). Appellant has appealed from the judgment and has also fi...
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53 Cal.3d 428 (1991) 808 P.2d 226 280 Cal. Rptr. 83 DAVID SCHWAB et al., Plaintiffs and Appellants, v. RONDEL HOMES, INC., et al., Defendants and Respondents. Docket No. S012426. Supreme Court of California. April 15, 1991. *430 COUNSEL Meserve, Mumper & Hughes and Andrew K. Ulich for Plaintiffs and Appellants. Chase, Rotchford, Drukker & Bogust, Patrick A. Long, Kirstin H. Simonson, Long...
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Opinion Appellant was convicted of attempted robbery (Pen. Code, §§ 212.5, subd. (b), 664),1 which was committed at the Empire Savings and Loan office (hereafter the bank) located at 1967 Market Street in San Francisco. At approximately 1 p.m., appellant entered the bank, approached teller Katy Chue with his hand in his coat pocket suggesting possession of a gun, and demanded money. Chue exclaime...
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Opinion Amwest Surety Insurance Company (Amwest) appeals from an order denying its motion to vacate forfeiture of bail and exonerate the bond in two criminal actions against defendant Ruben Williams. Amwest’s sole contention on appeal is that it made an effective surrender of Williams within the meaning of Penal Code sections 1300, 1301, and 1305, and the forfeitures should therefore have...
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*331 Opinion The underlying action was filed to recover damages for serious personal injuries suffered by Ritsuko and Akishige Kishida (plaintiffs) when their automobile collided with another, fleeing from California Highway Patrol (CHP) units during a high-speed chase. The State of California (defendant) was named as such on the theory that the two CHP officers engaged in the ch...
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ORDER The United States appeals a decision of the U.S. Bankruptcy Court discharging an estate from tax liability under 11 U.S.C. § 505(b). The United States contends that, contrary to the bankruptcy court’s ruling, the estate is not a “successor to the debt- or” as defined in § 505(b). For the reasons set forth below, the decision must be reversed. An estate is not included as a discharge...
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499 U.S. 432 (1991) KAY v. EHRLER ET AL. No. 90-79. Supreme Court of the United States. Argued February 25, 1991. Decided April 16, 1991. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Timothy B. Dyk argued the cause for petitioner. With him on the briefs were Robert H. Klonoff and Richard B. Kay, pro se. Ann M. Sheadel, Assistant Attorney General of Kentucky, argued the c...
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delivered the opinion of the Court. These consolidated cases require us to consider the constitutionality of a state sales tax that excludes or exempts certain segments of the media but not others. I Arkansas' Gross Receipts Act imposes a 4% tax on receipts from the sale of all tangible personal property and specified services. Ark. Code Ann. §~ 26-52-301, 26-52-302 (1987 and Supp. 1989). The Act ...
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delivered the opinion of the Court. The doctrine of abuse of the writ defines the circumstances in which federal courts decline to entertain a claim presented for the first time in a second or subsequent petition for a writ of habeas corpus. Petitioner Warren McCleskey in a second federal habeas petition presented a claim under Massiah v. United States, 377 U. S. 201 (1964), that he failed to incl...
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Kenneth Barker was president and general manager of Lionsgate Corporation, a family construction business. The Army Corps of Engineers contracted with Lions-gate to construct a quarter mile concrete channel for flood control purposes. Lions-gate performed work beyond the scope of the contract because of changed site conditions, design errors, and changes in government plans. Barker submitted 74 cl...
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Joseph Sehnal appeals his conviction of violating 26 U.S.C. § 7206(1) by making false statements on two corporate tax returns filed by Scorpio Steel, Inc. (Scorpio). He also appeals the denial of his motion for acquittal on charges of making false statements on two personal income tax returns — charges as to which the jury could not agree. We affirm the conviction. We dismiss for want of jurisdic...
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930 F.2d 703 MT. GRAHAM RED SQUIRREL, (Tamiasciurus hudsonicusgrahamensis), an Endangered Species, Sierra Club, aNon-Profit Corporation, National Audubon Society, aNon-Profit Corporation, National Wildlife Federation, aNon-Profit Association, Arizona Wildlife Federation, aNon-Profit Corporation, Maricopa Audubon Society, aNon-Profit Association, Tucson Audubon Society, a Non-ProfitAssociation,...
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Opinion John Cleaves appeals a judgment convicting him of second degree murder (Pen. Code, 1 § 187), primarily contending the court erred by failing to honor his request to instruct on a lesser related offense of aiding and abetting a suicide (§ 401). In addition, he argues we should fashion a lesser related offense of voluntary manslaughter for killings done at the request of ...
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Opinion The Canadian Insurance Company of California (hereinafter, Canadian) brought an action for declaratory relief to determine whether Canadian’s automobile liability insurance policy covered John Bohm’s (John) use of Robert Bohm’s (Robert) car. Canadian successfully moved for summary judgment, establishing no such coverage. The persons injured by John’s use of the car and the survivo...
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Opinion The Olympic Club (hereinafter the Club), founded in 1860 for “white male citizens of the United States of good moral character, integrity and reputation,” owns sports, dining, and residential facilities in San Francisco. It is being sued by the City and County of San Francisco (hereinafter the City) for an injunction against membership policies and practices which are said to disc...
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*424 Opinion Defendants and Appellants, Harry W. Gorst Company, Inc., and insurance companies, English and American Group PLC, Terra Nova, Excess Insurance Group and Bishopgate (insurance companies), appeal from a judgment entered after a jury verdict in favor of plaintiff and respondent, Liberty Transport, Inc. Because there is at least one cause of action free from error and su...
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MEMORANDUM OF DECISION INTRODUCTION Plaintiffs filed this action to enjoin the Internal Revenue Service (“IRS”) from collecting past due taxes, interest, and penalties allegedly owed by plaintiffs for the tax years 1980, 1981, and 1983. The basis for plaintiffs’ action is that the IRS failed to provide the plaintiffs with proper notice of the deficiency prior to the running of the st...
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delivered the opinion of the Court. The issue in this case is whether a financial institution realizes tax-deductible losses when it exchanges its interests in one group of residential mortgage loans for another lender’s interests in a different group of residential mortgage loans. We hold that such a transaction does give rise to realized losses. I Petitioner Cottage Savings Association (Cottage ...
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delivered the opinion of the Court. * In this case, we consider two questions relating to the federal income tax liability of respondent Centennial Savings Bank FSB (Centennial). The first is whether Centennial realized deductible losses when it exchanged its interests in one group of residential mortgage loans for another lender’s interests in a different group of residential mort...
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delivered the opinion of the Court. Article 17 of the Warsaw Convention 1 sets forth conditions under which an international air carrier can be held lia *533 ble for injuries to passengers. This case presents the question whether Article 17 allows recovery for mental or psychic injuries unaccompanied by physical injury or physical manifestation of injury. I ...
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499 U.S. 585 (1991) CARNIVAL CRUISE LINES, INC. v. SHUTE ET VIR No. 89-1647. Supreme Court of the United States. Argued January 15, 1991. Decided April 17, 1991 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *586 Richard K. Willard argued the cause for petitioner. With him on the briefs were David L. Roll and Lawrence D. Winson. Gregory J. Wall argued the cause and filed a...
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Richard Rison, as warden of the Federal Correctional Institution at Terminal Island in San Pedro, California, asks us to dismiss this appeal from the denial of Picrin-Pe-ron’s petition for a writ of habeas corpus claiming that the case is moot. We dismiss. I Lorenzo Alberto Picrin-Peron is á native and citizen of Cuba. In 1979, he applied to the U.S. Interests Section of the Swiss Emb...
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I. Donald Gene Henthorn appeals his conviction following a jury trial for conspiring with 17 other individuals to import and possess cocaine with the intent to distribute, and for travel in interstate and foreign commerce in aid of racketeering enterprises. Henthorn claims, inter alia, that the district court erred in denying his discovery request for impeachment material contained in the tes...
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Cervantes appeals the district court’s imposition of sentence following his conviction on a guilty plea of being a deported alien found in the United States in violation of 18 U.S.C. § 3231. He was sentenced at the upper end of the guideline range because of his criminal background. He argues that his sentence was imposed in violation of law because the district court failed to exercise its discr...
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This case involves a dispute over the translation of a version of the Bible into several Asian languages, particularly Japanese. The Lockman Foundation (“Lock-man”) sued The Evangelical Alliance Mission (“TEAM”), TEAM’S alleged alter ego in Japan, called TEAM/Domei, and McVety, a TEAM/Domei representative in Japan, in federal district court in California, alleging various copyright and noncopy-...
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OPINION Plaintiff filed this action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to obtain documents from the files of the Federal Bureau of Investigation (“FBI”), with processing fees waived under 5 U.S.C. § 552(a)(4)(A). The matter subsequently was referred to a federal magistrate for evaluation of defendants’ claims that certain documents were exempt from disclosure und...
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ORDER The mandate of the United States Supreme Court certified on May 30, 1990, in California v. American Stores Co., - U.S. -, 110 S.Ct. 1853, 109 L.Ed.2d 240, *777 reversed part of the judgment of this court. Accordingly, we vacate part V of our opinion at 872 F.2d 837, 844-46 (9th Cir.1989), and remand to the district court for further proceedings which are consistent with the opinion of...
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Opinion Appellant Dorcas E. Lasam (Mrs. Lasam) purchased a policy of insurance on her 1970 Pontiac from respondent Interinsurance Exchange of the Automobile Club of Southern California (Interinsurance). The policy named her son, appellant William Lasam (William), as a driver of the Pontiac. On September 5, 1985, the Pontiac was mechanically disabled. Therefore, Mrs. Lasam gave William per...
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OPINION AND ORDER In this bankruptcy appeal, appellant, Hartford Accident and Indemnity Company (“Hartford”), challenges the United States Bankruptcy Court’s order extinguishing a judgment lien Hartford recorded on certain residential real property owned by appel-lees, Benjamin and Pamela Vanden Bossche (the “Vanden Bossches”). Having considered the pleadings and oral argument of counsel,...
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Opinion Procedural History Appellant County of Fresno (County) appeals a trial court’s ruling sustaining a demurrer without leave to amend and granting judgment dismissing the County’s petition for writ of mandate and complaint for declaratory relief. *343 County was ordered to pay attorney’s fees in the amount of $88,120 pursuant to Code of Civil Procedure section 1021.5 1 in Fresno Su...
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*406 Opinion Michael S. is a full-blooded Native American Indian and the natural father of seven-year-old Lindsay C. who is the subject of these proceedings. Michael appeals from a judgment terminating his parental rights regarding the minor. As part of that judgment, the trial court found that Michael was not the “presumed father” within the meaning of Civil Code section 7004 and that the In...
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Opinion This is an appeal from a permanency planning order made by the juvenile court pursuant to Welfare and Institutions Code section 366.252 regarding the four children of appellant Ines N. (Mother). Ruth M., the oldest of the four children, was placed in long-term foster care in one foster home, and Betzel M. (Betsy), Thomas M., and Maria M. (collectively, the three younger children) were plac...
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Opinion —We granted review to resolve a split of authority in the Courts of Appeal concerning whether a defendant charged under Penal Code section 666 (petty theft with a prior theft-related conviction) 1 may stipulate to a prior felony conviction allegation and thus preclude the jury from learning of that conviction. We conclude a defendant may so stipulate. I. Fact...
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I concur in the judgment and opinion except for part IV, as to which I dissent. In part IV the majority opinion upholds the judgment of sentence predicated upon the finding that defendant was a habitual criminal within the meaning of Penal Code section 667.7, subdivision (a) and therefore subject to a term of life imprisonment.1 It does so on the theory that defendant’s 1966 conviction of first de...
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Hamed Elnager, a native and citizen of Egypt, appeals the Board of Immigration Appeals (the “BIA”) denial of asylum and withholding of deportation relief. He contends that the BIA applied the incorrect legal standard to his asylum petition and that the decision was not supported by substantial evidence. We AFFIRM the decision of the BIA. BACKGROUND Petitioner Hamed Elsyed Elnager is a...
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This is a consolidated appeal arising out of an airplane crash in San Diego, California as the plane approached an airport in Tijuana, Mexico. Exportadora de Sal, S.A. de C.V. (“Exportadora”) challenges two rulings of the district court: (1) that Expor-tadora does not have sovereign immunity, and (2) that California law applies to these actions. We affirm. I Exportadora is a corporation which prod...
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Hiroyasu Takai and Akiko Magneson pled guilty to the crimes of bribing an official of the Immigration and Naturalization Service in violation of 18 U.S.C. § 201(b)(1)(C) and of conspiring to bribe that official in violation of 18 U.S.C. § 371. They were sentenced to four months in home detention under an electronic program, to probation, and to fines of $15,000 apiece. The United States appeals t...
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Opinion —Alan Dale Bradley was convicted of aggravated assault and sentenced to prison. Thereafter, the superior court invoked Penal Code section 1170, subdivision (d) (hereafter section 1170(d)),1 to recall Bradley’s sentence. Petitioner William Edward Dix, the victim of Bradley’s assault, sought mandate or prohibition to overturn the recall order and prevent substitution of a new sentence. Peti...
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Opinion May a public employer order one of its employees, on pain of suspension, demotion, or termination, to submit to drug testing without first complying with the “meet and confer” requirements of the MeyersMilias-Brown Act (Gov. Code, 1 § 3500 et seq., hereinafter MMBA)? Under the circumstances of this case, we answer the question no. Summary of Facts and Procedural Hi...
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Michelle Lindahl brought this suit against her employer, Air France, for sex discrimination under Title VII of the Civil Rights Act of 1964 and age discrimination under the Age Discrimination in Employment Act (ADEA) based on Air France giving a promotion to a young male instead of to her, a 49-year-old female. The district court granted Air France’s motion for summary judgment. We reverse. ...
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931 F.2d 1320 30 Wage & Hour Cas. (BN 441, 118 Lab.Cas. P 35,480 Carral Raymond GILBREATH, Plaintiff-Appellant,v.CUTTER BIOLOGICAL, INC.; Miles Laboratory, Parentcorporation of Cutter Biological, Defendants-Appellees.Donald Eugene YOUNG; Sonny Metcalf; Kenneth O. Ashelman;James Delbert Scott; Jose Alvarez Cardenas;Danny L. Try; Charles L. Boylan; GaryKeith Griffin; Donald A. Jo...
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*563 Opinion This case involves two appeals. In the first, defendant Victor Lamas appeals from the denial of his Penal Code section 1538.5 motion, after which he was convicted of conspiracy to possess cocaine for sale upon a plea of no contest. In the second, defendant Oscar DeJesus Fernandez appeals from his conviction after jury trial of conspiracy to possess cocaine for sale and attempted ...
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OPINION AND ORDER Plaintiffs, resident California state and federal taxpayers, filed a declaratory relief action against defendants 1 alleging that the manner in which remedial educational services are provided to students attending sectarian schools in the San Francisco Unified School District, pursuant to Chapters 1 and 2 of the Education Consolidation and Improvement Act of 1981, 20 U.S.C....
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Opinion —Defendants were convicted of having stolen jewelry in a store burglary. On appeal, Darby contends that the trial court erred in admitting into evidence burglary loot seized from the car he was driving when the police caught them. Both defendants contend that the trial court erred in admitting into evidence a recording of a conversation between them while in custody awaiting arraignment...
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Opinion The Los Angeles Unified School District (District) filed with the Board of Control of the State of California (Board) a claim in 1980 seeking reimbursement for the financial costs of complying with legislation (Stats. 1973, ch. 993) which created the California Occupational Safety and Health Administration (Cal/OSHA). The District claimed approximately $45,000 in reimbursements as...
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OPINION The Department of Veterans’ Affairs (“DVA”) objected to a Chapter 13 plan that proposed to cure a defaulted mortgage after a foreclosure sale. The bankruptcy court confirmed the plan and the DVA appealed. We reverse. FACTS The DVA held a mortgage on debtors’ home and debtors defaulted. A decree of foreclosure was thereafter entered in Oregon state court on July 26, 1989, and a writ ...
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OPINION AND ORDER This is the damages phase of a bifurcated patent infringement action involving Coriolis mass flowmeters, which measure the mass flow rate of liquids. Since 1977, plaintiff, Micro Motion, Incorporated (“Micro Motion”), a Colorado corporation and a wholly-owned subsidiary of Emerson Electric Company (“Emerson Electric”) since 1984, has manufactured and sold Coriolis mass f...
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931 F.2d 534 137 L.R.R.M. (BNA) 2426, 119 Lab.Cas. P 10,776 John A. PETERS, Plaintiff-Appellant,v.BURLINGTON NORTHERN RAILROAD COMPANY; The InternationalBrotherhood of Iron Shipbuilders, Blacksmiths, Forgers, andHelpers; and, Lodge 1131 of the International Brotherhoodof Boilermakers, Blacksmiths, Forgers and Helpers,Defendants-Appellees. No. 88-3829. United States Court of Appe...
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53 Cal.3d 482 (1991) 808 P.2d 235 280 Cal. Rptr. 92 COUNTY OF FRESNO, Plaintiff and Appellant, v. THE STATE OF CALIFORNIA et al., Defendants and Respondents. Docket No. S015637. Supreme Court of California. April 22, 1991. *483 COUNSEL Max E. Robinson, County Counsel, and Pamela A. Stone, Deputy County Counsel, for Plaintiff and Appellant. B.C. Barnum, County Counsel (Kern), and Patricia J. Rando...
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Opinion This appeal presents two issues concerning the application of Business and Professions Code section 6146 (hereafter section 6146), the sliding-scale limitation on contingency fees for medical malpractice cases enacted by the Medical Injury Compensation Reform Act of 1975 (MICRA). The first issue is whether an attorney who represents several heirs in a wrongful death case grounded ...
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*545 Opinion In this action alleging discrimination based on a physical handicap, the trial court granted summary judgment to defendants on the ground that plaintiff’s exclusive remedy rested in Labor Code section 132a. 1 Plaintiff appeals, contending that defendants failed to meet their burden of proving the elements required to assert this section as an affirmative defense to the action. ...
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Opinion Statement of the Case Plaintiff John Ataide, doing business as Ataide Trucking Company (Ataide), brought suit against defendant, Hamilton Copper & Steel Corporation (Hamilton), to recover undercharges for trucking services it provided to Hamilton. These undercharges were the difference between the amount Hamilton paid Ataide and the amount which Hamilton should have paid in accordance wit...
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Opinion Appellants, Vince Caruso and Sande St. John, appeal following their unsuccessful complaint in intervention by which they sought to block a foreclosure sale by respondent, Great Western Savings. Appellants claim that respondent should have applied insurance proceeds received after property damage from land movement to reduce the amount owed on a promissory note and thus to extingui...
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delivered the opinion of the Court. For the first time since the National Labor Relations Board (Board or NLRB) was established in 1935, the Board has promulgated a substantive rule defining the employee units appropriate for collective bargaining in a particular line of commerce. The rule is applicable to acute care hospitals and provides, with three exceptions, that eight, and only eight...
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with whom Justice Marshall joins, dissenting. The Court’s narrow construction of the word “seizure” represents a significant, and in my view, unfortunate, departure from prior case law construing the Fourth Amendment.1 Almost a quarter of a century ago, in two landmark cases — one broadening the protection of individual privacy,2 and the other broadening the powers of law enforcement officers3— we...
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931 F.2d 554 67 A.F.T.R.2d 91-1012, 91-1 USTC P 50,217 BROOKHURST, INC., as Successor by Merger with CommercialUniform Company, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.BROOKHURST, INC., as Successor by Merger with CommercialUniform Company, Plaintiff-Appellee,v.UNITED STATES of America, Defendant-Appellant. Nos. 89-55228, 89-55265. United States Court of...
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ORDER Attorney for plaintiff-appellant Russell petitions this court for permission to charge attorney fees pursuant to Section 406(b) of the Social Security Act. Russell applies for fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A). We award fees under both statutes. I. BACKGROUND The action underlying the fee applications first came before this court...
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Appellant Nichkol Melanson appeals the dismissal of her state law tort action against United Air Lines, Inc. (“United”) for negligent and intentional misrepresentation, concealment, and promise without intent to perform. Melanson originally filed this action in state court, but United removed it to federal court, asserting diversity jurisdiction under 28 U.S.C. § 1332 and federal question juris...
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Robert G., Sara, and Consuelo Navarro appeal the district court’s judgment of forfeiture of $29,959.00 in currency following a bench trial. The Navarros contend that clerical errors made by the government and the district court, combined with a premature execution of the judgment, prevented them from filing a stay of execution of forfeiture. Additionally they claim that the police did not have ...
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Opinion This petition seeks review of the sustaining without leave to amend of a demurrer to one cause of action of petitioner’s complaint. The cause so terminated was entitled, and is properly characterized as, “Breach of the Implied Covenant of Good Faith and Fair Dealing.” By means of this cause of action the petitioner sought to recover tort damages because of the real party in intere...
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Opinion Tommy Dean Correll appeals from the sentence imposed after a jury found him guilty of residential burglary (Pen. Code, §§ 459-460, subd. I), 1 and the trial court found true a prior felony enhancement (§ 667.5, subd. (b)). Appellant contends the trial court improperly required him to waive his presentence credits as a condition of probation. We affirm. I Facts On the morning o...
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Opinion Appellants, Committee to Defend Reproductive Rights and Carla Abbotts, appeal from an order of the San Francisco Superior Court denying their motion for attorney fees under Code of Civil Procedure section 1021.5 (hereafter section 1021.5), the private attorney general statute. They claim the trial court applied the wrong standard when denying their request for fees. We remand to the trial...
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Opinion Appellant contends two of his four prior convictions were improperly used to increase his sentence for drunk driving, because *649 the prosecutor failed during prior plea proceedings to state facts indicating appellant’s intoxication on previous occasions. We reject this contention and affirm. I. Facts and Procedural History Appellant was charged with drunk driving, and with havin...
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*698 Opinion Introduction Teachers from the Lancaster School District contend that the district governing board has not paid its teachers on a uniform basis as required by Education Code section 45028. After rehearing this matter, we conclude that the trial court’s reading of the statute was erroneous as a matter of law, but remand the case for further proceedings to resolve disputed factua...
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229 Cal.App.3d 707 (1991) 280 Cal. Rptr. 274 THE PEOPLE, Plaintiff and Respondent, v. CEDRIC WAYNE SCOTT, Defendant and Appellant. Docket No. B020765. Court of Appeals of California, Second District, Division Seven. April 24, 1991. *709 COUNSEL Fern M. Laethem, State Public Defender, under appointment by the Court of Appeal, Nancy Gaynor and Kent Barkhurst, Deputy State Public Defenders, for Defe...
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Alameda County Training and Employment Board petitions for review of then Secretary of Labor Dole’s decision affirming then California Governor Deukmejian’s disapproval of the Board’s job training plan. We deny the petition. BACKGROUND The stated purpose of the Job Training Partnership Act (the Act), 29 U.S.C. § 1501 et seq., is “to establish programs to prepare youth and unskilled adults f...
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OPINION AND ORDER OF REMAND IT IS HEREBY ORDERED that Plaintiff’s and Defendant’s motions are denied and this case is remanded to the Secretary of Health and Human Services (“Secretary”) for further administrative action consistent with this Opinion. PROCEEDINGS Plaintiff filed a “Complaint for Review of the Proceedings of the Secretary of Health and Human Services” on August 30...
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Badea, a former inmate of the Federal Prison Camp at Lompoc, California, brought a civil rights action against the warden and two prison officials for their denial of his repeated requests for placement in a community treatment center.1 His complaint sought declaratory and in-junctive relief, and compensatory and punitive damages. The district court referred Badea’s case to a magistrate, who concl...
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OPINION Blair William Guthrie appeals his conviction for possession of an unregistered si *566 lencer, claiming the district court erred by: (1) failing sua sponte to give certain jury instructions; (2) restricting the cross-examination of a key government witness; (3) refusing to hold a Franks hearing; and (4) increasing his criminal history score under the United...
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931 F.2d 578 67 A.F.T.R.2d 91-918, 91-1 USTC P 50,210 Howard S. HOWARD and Anne F. Howard; Ray Warner, Jr.;Roger W. Franzen; Robert W. Lindner and Carole Lindner;Paul A. Rittenhouse and Ann M. Rittenhouse; Andrew C.Bambeck and Nancy A. Bambeck; Martin J. Gould and Gloria H.Gould; Jerome L. Grosvenor and Danna B. Grosvenor,Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Res...
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931 F.2d 582 OWNER-OPERATORS INDEPENDENT DRIVERS ASSOCIATION OF AMERICA,INC., a corporation; Michael York, an individual,Plaintiffs-Appellees,v.Samuel K. SKINNER, Secretary of Transportation; UnitedStates Department of Transportation, FederalHighway Administration, Defendants-Appellants. No. 89-16332. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 11, 198...
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INTRODUCTION In this consolidated case, the International Brotherhood of Teamsters, Amalgamated Transit Union, Railway Labor Executives' Association, and Oil, Chemical, and Atomic Workers Union (collectively, “the Unions”) petition for review of an order issued by the Federal Highway Administration of the Department of Transportation (“FHWA”) mandating various forms of drug testing for commercial ...
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*499Opinion Introduction We review the unanimous recommendation of the State Bar Court Review Department (review department) that petitioner J. William Conroy (Conroy) be suspended from the practice of law for two years, that the order of suspension be stayed, and that he be placed on probation for two years on conditions including an actual suspension of six months. The recommendation is based u...
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Opinion Plaintiff, Royal Bank Export Finance Company, Ltd. (Bank) appeals from a judgment entered in favor of defendant, Best-ways Distributing Co. (hereinafter referred to as Bestways). Bank contends that as a bona fide purchaser of Bestways’s purchase orders from a company known as E.R.S. Technologies, Inc. (E.R.S.), its claim against Bestways for the money due under the purchase orders could...
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ORDER GRANTING ALLSTATE’S MOTION FOR JUDGMENT ON THE PLEADINGS I. INTRODUCTION By the instant motion for judgment on the pleadings, Allstate Insurance Company (“Allstate”) seeks a declaration that it has no duty to defend or indemnify its insured, Lisa LaPore, in a defamation action filed in state court by Mark Jozwiak. Allstate contends that (1) the policy only covers “accidents,” a...
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ORDER RE MOTION FOR INTERNAL REVENUE SERVICE AUDIT LIST I. Introduction Defendant Stribling moves the Court pursuant to 26 U.S.C. § 6103(h)(5) to order the attorney for the government to obtain from the Secretary of the Treasury a yes or no answer regarding whether any of the prospective jurors has been the subject of any audit or other tax investigation by the Internal Revenue Servi...
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*810Opinion We conclude plaintiffs may not enforce possessory vessel liens outside the exclusive provisions of the “Boaters Lien Law” (Harb. & Nav. Code, §§ 500-509).1 We affirm the judgment (order of dismissal). Facts Plaintiffs Mariners Bay Company and Marina International Properties, Ltd., are the lessors of several thousand boat slips in Marina del Rey. When plaintiffs obtain unlawful detain...
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Opinion We conclude the psychotherapist-patient privilege does not apply in this civil action to information reported by a psychotherapist pursuant to the Child Abuse and Neglect Reporting Act. (Pen. Code, § 11171, subd. (b)). 1 We deny the petition for a writ of mandate to compel the superior court to vacate the order requiring the limited deposition of petitioner’s psychother...
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Opinion In this case of first impression, we must decide whether it is an unfair labor practice under the Meyers-Milias-Brown Act (Gov. Code, § 3500 et seq., hereinafter the MMBA) and Los Angeles County Employee Relations Ordinance 9646 (hereinafter County Ordinance), for an employee organization to deny reinstatement to a former member who was expelled for dual unionism. We conclude the ...
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Victoria Murphey appeals the district court’s denial of her motion for a judicial recommendation against deportation. We affirm. BACKGROUND Murphey is a Filipino citizen who has been in the United States since 1985. ■ In late 1989, she pleaded guilty to the crime of importation of a controlled substance. Pri- or to sentencing, the Immigration and Naturalization Service served her with an orde...
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Defendant pled guilty to conspiracy to possess and distribute 437 kilograms of cocaine, an offense which carries a ten year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A). Prior to the imposition of sentence, the government moved for a downward departure from the Sentencing Guidelines based upon Mr. Keene’s substantial assistance in the conviction of several codefendants. During the se...
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John Joseph Vaccaro was convicted of racketeering. United States v. Vaccaro, 602 F.Supp. 1132 (D.Nev.1985), aff'd, 816 F.2d 443 (9th Cir.), cert. denied, 484 U.S. 928, 108 S.Ct. 295, 98 L.Ed.2d 255 (1987). The district court released Vaccaro on bail while he appealed his conviction. His release was secured by a corporate surety bond provided by Bell Bail Bonds (...
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Opinion In this case we hold that a provision in a consent decree for attorney fees for future successful judicial enforcement does not constitute a waiver of statutory attorney fees for nonjudicial enforcement proceedings which are a prerequisite to judicial enforcement. Mario Zambrano appeals from an order denying his motion for attorney fees. In June 1985, Zambrano and the Oa...
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Opinion The Franchise Tax Board appeals a judgment in favor of Rain Bird Sprinkler Mfg. Corp. (RBSMC) in the corporation’s action for a refund of taxes paid for the years 1974 and 1975. In this case, which deals with whether RBSMC and its affiliated corporations comprise a unitary business, the sole issue on appeal is whether majority ownership of corporations can be held by a family rath...
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Opinion In this case we must determine whether a city may close a portion of a regional roadway that continues beyond its city limits. We conclude Vehicle Code section 21101, subdivision (f) 1 confers no *852 such authority upon city government. This matter is before us on an appeal by the City of San Diego et al. (San Diego) of the trial court’s order granting a p...
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931 F.2d 590 21 Envtl. L. Rep. 21,040 SEATTLE AUDUBON SOCIETY; Pilchuck Audubon Society;Washington Environmental Council; Washington Native PlantsSociety; Oregon Natural Resources Council, Inc.; PortlandAudubon Society; Lane County Audubon Society, Plaintiffs-Appellants,Washington Contract Loggers Association; William Pickell,Plaintiffs-Appellees,v.F. Dale ROBERTSON, in his official ...
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Defendant Keith Kindred was set up by an informer and arrested by undercover federal agents. He was charged with possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d), and convicted after a jury trial. We reverse. I. Kindred was charged under a statute that regulates the possession and exchange of particularly dangerous weapons, including bombs, hand grenades, rockets, ma...
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931 F.2d 1338 59 USLW 2725, 1991-1 Trade Cases 69,452,21 Fed.R.Serv.3d 1239 Z CHANNEL LIMITED PARTNERSHIP, Plaintiff-Appellant,v.HOME BOX OFFICE, INC.; MGM/UA Telecommunications, Inc.;Paramount Pictures Corporation; Twentieth CenturyFox Film Corporation; Warner Brothers,Inc. Defendants-Appellees. No. 88-6576. United States Court of Appeals,Ninth Circuit. Argued and Submitt...
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Opinion In this action we consider whether a federal court judgment in favor of defendant General Foods Corporation and against plaintiff Brenda J. Gamble on plaintiff’s title VII action is a res judicata bar to plaintiff’s state-law claim for wrongful termination. We hold that the federal judgment bars plaintiff’s state claim and aifirm the judgment. Procedural History On Augus...
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Opinion —The Review Department of the State Bar Court (review department) has recommended that petitioner Patrick B. Kelly be suspended from the practice of law in California for three years, that execution of the suspension order be stayed, and that he be placed on probation for three years upon conditions that include actual suspension from the practice of law for one year. The recommendation i...
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Opinion Fedora DeMartini appeals from a decree of preliminary distribution in the probate of the estate of Josephine Simoncini, her mother. We affirm. I Josephine Simoncini died testate on October 16, 1988. She had two children: a son, respondent Foresto Simoncini; and a daughter, appellant Fedora DeMartini. On December 9, 1988, the decedent’s will (the Will) was admitted to pro...
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Opinion Introduction Defendants Lida Cohan et al. appeal from an order awarding sanctions to plaintiffs Khanbaba Kohan and Diana Kohan for misuse of the discovery process (Code Civ. Proc., § 2023, subd. (b)(1)). Statement of Facts Plaintiffs brought this action for dissolution of partnership, an accounting and other relief. It involves an alleged partnership agreement among...
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Opinion The People appeal the judgment entered after the trial court sustained a demurrer in favor of the defendants (Pen. Code, § 1238, subd. (a)(2)) with respect to a criminal complaint alleging numerous violations of the Los Angeles County Code (LACC) in connection with the operation of Library One, an adult bookstore and picture arcade. 1 The named defendants are Library On...
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Opinion —George Herbert Wharton was convicted in 1986 of the first degree murder of Linda Smith. After being advised of and waiving his constitutional rights, he admitted the truth of a single special-circumstance allegation charging a prior conviction of second degree murder. (Pen. Code, § 190.2, subd. (a)(2); all further statutory references are to this code unless otherwise indicated.) He also...
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ORDER The appellee’s Petition for Rehearing is hereby GRANTED. The Opinion previously filed on June 26, 1990, and reported at 906 F.2d 1324, is hereby WITHDRAWN. Jose Luis Sotelo-Rivera (“Sotelo”) appeals from his conviction for possession with intent to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(l)(B)(vii) (1988). Sotelo claims ...
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Larry Wheaton appeals the dismissal on summary judgment of his action challenging his removal from the State of Oregon’s management service. We review de novo, viewing the evidence in the light most favorable to Wheaton, to determine whether any factual issue precludes summary judgment and whether the district court correctly applied the substantive law. Tzung v. State Farm Fire and Casua...
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Byron Skinna Sr. appeals his conviction for unlawful transportation in interstate commerce of illegally taken herring spawn on kelp, 16 U.S.C. § 3372(a)(2)(A). He contends that the Alaska fishing regulations underlying his Lacey Act conviction are invalid because they conflict with the Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. §§ 3113, 3114. We affirm. *531 ...
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The government appeals the district court’s award of interest and costs in an eminent domain proceeding. The landowners cross-appeal, contending that the district court erred in denying them attorney fees as the prevailing party and in refusing to include severance damages as part of its just compensation award. I. The United States brought a condemnation action to take property locat...
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932 F.2d 791 Sandra Jean SMITH, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee. No. 89-35088. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 9, 1990.Decided May 1, 1991. David Gernant, Portland, Or., for plaintiff-appellant. Mark B. Stern, Appellate Staff Civil Div., U.S. Dept. of Justice, Washington, D.C., for defendant...
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931 F.2d 624 John ROMERO, Dean Harvey, David Seaver, Philip R. Holt,Steven L. Holt, Plaintiffs-Appellees,v.KITSAP COUNTY, Steven Demiero, Michael Charron, Bruce Moore,Charles Pudwill, Philip Worchester, DonaldMakoviney, Defendants-Appellants. No. 90-35448. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 6, 1991.Decided May 1, 1991. Robert K. Coste...
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Opinion Angel R. appeals the trial court’s orders terminating his parental rights to his 10 minor children. He contends there was no evidence to support the court’s finding the minors were adoptable; thus, termination of his parental rights was premature. (Welf. & Inst. Code, § 366.26, subds. (c)(1) & (c)(2).)1 We agree and reverse accordingly. *1062I. Nine of appellant’s ten children, ranging in...
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I respectfully dissent. There is no substantial evidence showing that parking needs, which will be inexorably generated by the massive convention center project, can be mitigated without construction of additional parking facilities. Therefore, construction of additional parking facilities is a direct, inevitable effect of the project, a conclusion which (given the size and location of the project...
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ORDER This matter came on for hearing before this Court on February 6, 1991. Dana Welch of Shearman & Sterling presented arguments on behalf of defendants Network Equipment Technologies, Inc., Daniel Warmenhoven and Steven Schlumberger. K. Louise Francis of Heller, Ehrman, White & McAuliffe argued on behalf of defendant Barrett Roach. Paul Dawes of Latham & Watkins appeared representing d...
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Opinion In this case we are asked to decide a single issue of statutory interpretation: whether a mural is a “painting” within the meaning of The California Art Preservation Act (Act). (Civ. Code, § 987.) 1 We hold that it is. Procedural Background This case reaches us after the trial court granted defendants’ motion for full summary judgment based on its conclusion t...
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Opinion Plaintiff and appellant The Baldwin Company (Baldwin) appeals a judgment of the superior court confirming an arbitration award in *1055 favor of defendant and respondent Rainey Construction Company, Inc. (Rainey). Baldwin contends the court erred by confirming a portion of the arbitrator’s award while rejecting the balance, and that, accordingly, the judgment must be reversed with dir...
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Opinion Appellants Martha Rauber and Katherine Williams (plaintiffs) appeal from the dismissal of their complaint following the sustaining of a demurrer without leave to amend. We affirm. I. Allegations of Complaint and Demurrer The complaint alleged that plaintiffs are former and current recipients of assistance under the Aid to Families with Dependent Children program (AFDC) and food st...
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Opinion This appeal is part of a complex web of litigation arising from a limited partnership tax shelter investment gone awry. The limited partners seek to reverse a judgment entered against them pursuant to a jury’s general verdict rendered in connection with their agreement to assume certain obligations of the partnership. One of the questions presented in this appeal is whether a cred...
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Edward McKeever Jr., pro se, appeals the dismissal of his § 1983 action for failure to prosecute. McKeever appears to argue that, in ordering his civil rights action dismissed, the district judge erred because that order was based upon an erroneous belief that McKeever was obliged, but failed, to file a second amended complaint. We reverse and remand. ■ BACKGROUND Between J...
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Opinion 1. Introduction Defendant Nam Van Huynh appeals from the judgment following his conviction after court trial of second degree murder with personal use of a .38-caliber revolver. (Pen. Code, §§ 187, 1203.06, 12022.5.) He also peti *1071 tions for a writ of habeas corpus. On November 5, 1990, we ordered the petition considered with defendant’s appeal and allowed the People to file a...
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*1170Opinion We decide here that Welfare and Institutions Code1 section 903, imposing liability for costs of supporting a minor ordered to out-of-home placement by the juvenile court, does not extend to legal guardians. Statement of Case Because this appeal raises a single issue, requiring construction of a statutory provision, we need only give a brief statement of the proceedings below and relev...
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Opinion Dennis K. Schwieterman appeals a summary judgment entered against him in favor of Mercury Casualty Company. The court determined Schwieterman could not recover under his poli*1046cy’s underinsured motorist benefits because the limits on his “uninsured motorist benefits were the same as [the tortfeasor’s] liability limits.” We affirm.1 I After Schwieterman and several other individuals were...
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229 Cal.App.3d 1085 (1991) 280 Cal. Rptr. 544 STEWART SCATES et al., Plaintiffs and Respondents, v. JAMES RYDINGSWORD et al., Defendants and Appellants. FRANKIE RANDOLPH et al., Plaintiffs and Respondents, v. CONTRA COSTA COUNTY et al., Defendants and Appellants. Docket No. A047712. Court of Appeals of California, First District, Division Two. May 1, 1991. *1088 COUNSEL Victor J. Westman, County ...
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53 Cal.3d 705 (1991) 808 P.2d 1181 280 Cal. Rptr. 424 THE PEOPLE, Plaintiff and Respondent, v. RONALD LEE DEERE, Defendant and Appellant. Docket No. S004722. Crim. No. 25642. Supreme Court of California. May 2, 1991. *710 COUNSEL Robert R. Bryan, under appointment by the Supreme Court, and Thomas W. Jackson for Defendant and Appellant. John K. Van de Kamp and Daniel E. Lungren, Attorneys General,...
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Opinion Here we are asked to decide whether an out-of-county licensed group home is a county juvenile hall, county juvenile home, ranch, camp or forestry camp, within the meaning of Welfare and Institutions Code section 871. 1 We hold that it is not and reverse the order sustaining the petition filed May 10, 1989, finding that the minor violated section 871. Steven E. appeals from the order...
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Opinion —This case, arising out of the 1977 death penalty law, is before us for the third time. In People v. Frierson (1979) 25 Cal.3d 142 [158 Cal.Rptr. 281, 599 P.2d 587] (Frierson I), we reversed defendant’s conviction of first degree murder with special circumstances and other offenses, together with a verdict of death, because of ineffective assistanc...
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Opinion Dominic M. Martin, petitioner in the underlying action for dissolution of marriage, appeals claiming the evidence is insufficient to uphold the spousal support award and ex-wife is not entitled thereto. He is wrong. We hold that a spouse may not finance a “buy-out” of community property and then succesfully claim inability to pay spousal support. We view the evidence in the light most...
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*1177 Opinion Appellant John Hasso (Husband) appeals from a judgment enforcing the terms of a written marital settlement agreement executed by him and respondent Hebe Hasso (Wife) which disposed of outstanding property rights issues arising from the dissolution of their marriage. Husband challenges the order granting Wife’s motion to enforce the settlement. We will reject Husband’s claims, ...
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Opinion Appellant Los Angeles National Bank filed an action against respondent Bank of Canton of California seeking $2,257,965 in compensatory damages, plus punitive damages, for respondent’s alleged failure either to pay the face amount of, or notify appellant it would not honor, 28 checks prior to the “midnight deadline” established by the California Uniform Commercial Code, 1 ...
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*1205 Opinion On this appeal, we determine the trial court properly sustained without leave to amend the City of San Diego’s (City) demurrer to Scott Weiner’s complaint on the basis of public entity immunity under Vehicle Code 1 section 17004.7. Weiner’s complaint had sought damages for his injuries received when the car he was driving was hit by a car driven by a flee...
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Opinion Following a plea of nolo contendere to 10 misdemeanor counts of violating San Diego County Zoning Ordinance (Zoning Ordinance) section 1006(a) (using land or building zoned single-family residential for a different purpose), Ratko Djekich was placed on probation after imposition of sentence was suspended. Among other conditions, he was ordered to pay a $1,000 fine for each count. ...
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Opinion Plaintiff Posey, owner of a condominium at Lake Arrowhead, filed this action against Mr. and Mrs. Leavitt, owners of another condominium in the same development. Mr. Posey contended that the Leavitts built a deck extension on the side of their condominium that encroached the common area and obstructed his view. Mr. Posey also sued his condominium association for breach of fid...
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Alfredo Morales appeals the district court’s grant of summary judgment affirming the decision of the Merit System Protection Board (the Board) upholding his discharge from the Air Force. We affirm the judgment of the district court in part, reverse in part, and remand. BACKGROUND Morales was a civilian employee of the United States Air Force. He had worked for the federal government for over twent...
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Opinion This is a civil forfeiture proceeding brought by the People pursuant to Health and Safety Code section 11470 et seq. 1 On March 3, 1989, officers of the Madera County Sheriff’s Department executed a search warrant at the home of appellant, John H. Baca, and his wife. They seized personal property valued at $64,500 pursuant to the forfeiture provisions of the Health an...
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Opinion Jose Luis Torres appeals his conviction of three counts of robbery (Pen. Code, 1 § 211), one with knife use (§ 12022, subd. (d)). He contends the trial court erred in failing to sever his trial from that of a codefendant, Leonardo Vasquez Diaz. Vasquez Diaz also appeals his conviction of three counts of robbery. He contends the abstract of judgment erroneously refers to...
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Opinion Appellant Sadie Mae Moten was convicted after jury trial on one count of first degree murder (Pen. Code, 1 § 187) and one count of felony child endangerment (§ 273a, subd. (1)). The victim of each offense was Moten’s eight-week-old daughter. Moten was sentenced to prison for a term of 25 years to life for the murder conviction and 6 years for the child endangerment conviction. The sen...
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Opinion By an information, appellant Ray Hayes (Hayes) was charged (in count I) with assault with a deadly weapon. In connection with count I, it was alleged Hayes personally used a deadly weapon (Pen. Code, 2 § 1192.7) and, with intent, inflicted great bodily injury on the victim (§ 12022.7). Hayes was also charged with battery causing serious bodily injury (count II) and with exhibiting a d...
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53 Cal.3d 618 (1991) 809 P.2d 351 280 Cal. Rptr. 692 THE PEOPLE, Plaintiff and Respondent, v. TIEQUON AUNDRAY COX, Defendant and Appellant. Docket No. S004711. Crim. No. 25425. Supreme Court of California. May 2, 1991. *640 COUNSEL Colleen E. Butler, under appointment by the Supreme Court, for Defendant and Appellant. *641 John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Richard B. I...
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Appellant appeals his conviction for smuggling marijuana over the Mexican border in violation of 21 U.S.C. §§ 952, 960, and 841(a)(1), and he appeals the calculation of his sentence under the guidelines. He argues that the trial court erred in denying him a continuance when he substituted new counsel before trial, in denying his motion to exclude the in-court identification by a customs inspector...
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Opinion Edward Francis Pearch and Jonathan Darrell Strawn appeal their convictions by a jury of second degree felony murder with a firearm (Pen. Code, §§ 187, 12022, subd. (a)) based on a killing during a kidnapping. On appeal, Pearch and Strawn contend the judgment must be reversed because the court erroneously admitted a hearsay statement by the victim, the court should have instructed on whe...
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Opinion —The superior court issued a writ of mandate directing the Department of Motor Vehicles (DMV) to set aside its order revoking Barrie Gray Mercer’s driving privileges after Mercer refused to submit to chemical testing following his arrest for driving under the influence of alcohol. (See Veh. Code, § 23157, subd. (a)(1) 1 [driver’s implied consent to chemical testing foll...
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Opinion Raymond Butler Glenn appeals from a judgment after a jury verdict finding him guilty of voluntary manslaughter. Because we find the trial court erred in refusing to instruct on involuntary manslaughter we conditionally reverse the conviction. Facts and Proceedings Below It is undisputed Glenn killed the victim, Thomas, with a foot-long butcher knife. The only issues pres...
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Opinion —This case, arising out of the 1978 death penalty law, chronicles the nocturnal massacre of a mother, father, daughter, and houseguest in the sanctity of their home, and the attempted murder of the young son, the only person to survive. A jury convicted defendant Kevin Cooper of four counts of first degree murder (Pen. Code, § 187),1 and one count of attempted murder with the intentional ...
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Daniel Abel petitions for review of a decision of the Benefits Review Board denying him benefits under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. The Benefits Review Board upheld the Administrative Law *820 Judge’s determination that Abel’s claim for benefits was untimely. We grant the petition, reverse and remand. BACKGROUND Abel, a longshoreman, suffered...
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Michael Anthony Hidalgo appeals his sentence under the sentencing guidelines, after a guilty plea, for unarmed bank robbery in violation of 18 U.S.C. § 2113(a). He argues that the district court erred by including a 1977 robbery conviction and then determining that he was a career offender pursuant to U.S.S.G. § 4B1.1 et seq. 1 We have jurisdiction over this timely appeal ...
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In this appeal from a judgment of the district court upholding the Secretary of the Interior’s amendments to Western Energy Company’s coal lease, we hold that the 1976 amendments to the Mineral Lands Leasing Act of 1920 apply to leases issued prior to 1976. In doing so, we join with the courts of appeals for the District of Columbia Circuit and the Tenth Circuit. I. BACKGROUND The Ten...
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OVERVIEW After a plea of nolo contendere, Baker was convicted of misbranding certain drugs, in violation of the Federal Food, Drug, and Cosmetic Act (FDCA). He moved to vacate his sentence under 28 U.S.C. § 2255, for lack of federal jurisdiction, arguing that the transactions set out in the information charging him were wholly intrastate in nature. The district court found a suf...
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932 F.2d 816 AMERICAN FIRE, THEFT & COLLISION MANAGERS, INC., d/b/aAmerican Pacific Autoplan, Plaintiff-Appellant,v.Roxani M. GILLESPIE, Individually and as InsuranceCommissioner for the State of California, and Jon Tomashoff,individually and as an Investigator of the Department ofInsurance of the State of California, Defendants-Appellees. No. 89-16210. United States Court of Appea...
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John Mackey appeals the district court’s judgment, following a bench trial on remand from this court, in favor of Knowlton Merritt in Merritt’s action against Mackey, et al. Merritt’s action charges that Mack-ey, a federal official, violated his due process rights in improperly coercing Merritt’s private employer to fire him. Merritt cross-appeals. We affirm all of the rulings of the district c...
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53 Cal.3d 863 (1991) 809 P.2d 809 281 Cal. Rptr. 34 JAMES SANDS et al., Plaintiffs and Respondents, v. MORONGO UNIFIED SCHOOL DISTRICT et al., Defendants and Appellants. Docket No. S012721. Supreme Court of California. May 6, 1991. *867 COUNSEL Biddle & Hamilton, Christian M. Keiner and Terri A. DeMitchell for Defendants and Appellants. Robert K. Skolrood, Douglas W. Davis, William C. Wood, J...
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Opinion Statement of the Case Appellant Grinnell Torres Lee appeals from a conviction after jury trial of possession of a controlled substance, rock cocaine (Health & Saf. Code, § 11350, subd. (a)), and possession of controlled substance paraphernalia (Health & Saf. Code, § 11364). The information further alleged on the first count that Lee had three prior felony convictions: a ...
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Opinion After being declared wards of the juvenile court (Welf. & Inst. Code, § 602), sisters Laylah K. and Sombrah K. were placed on probation and ordered to comply with certain terms and conditions. On appeal, they challenge the imposition of those terms, arguing they bear no reasonable relationship to the offenses and to their social histories. 1 *1499 I On A...
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Opinion Introduction This appeal presents the novel issue of whether the extra one-half hour overtime “premium” pay required by the federal Fair Labor Standards Act (FLSA), 29 United States Code sections 201-219, is the equivalent of “overtime” under the Public Employees’ Retirement Law (PERL), Government Code section 20025.2, which is defined as payment for service performed “in exc...
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Opinion Appellant Melanie Jo Carlson challenges a provision of a child custody and visitation order prohibiting her or respondent Gary L. Carlson from moving the minor children of their marriage outside of California without the prior written consent of the other party or further court order. Mother was awarded physical custody of the children. The restriction derailed her plan to relocat...
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932 F.2d 825 ARIS HELICOPTERS, LTD., Plaintiff-Appellant,v.ALLISON GAS TURBINE; General Motors Corporation; BellHelicopter, Defendants-Appellees. No. 90-15278. United States Court of Appeals,Ninth Circuit. Submitted April 10, 1991.*Decided May 9, 1991. Peter Axelrod, Reid, Axelrod & Ruane, Corte Madera, Cal., for plaintiff-appellant. Richard G. Grotch, Coddin...
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Opinion A jury convicted defendant of transporting cocaine (count II) (Health & Saf. Code, § 11352) and heroin (count IV) (Health & Saf. Code, § 11352). The jury also found the amount of cocaine transported exceeded three pounds. (Health & Saf. Code, § 11370.4, subd. (a)(1).) 1 On appeal, defendant raises claims of (1) ineffective assistance of counsel, (2) unlawful search an...
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Opinion This is an appeal from a peremptory writ of mandate ordering the City of Brisbane to desist from conducting an election on a referendum challenging the rezoning of a portion of San Bruno Mountain. The petition was filed on December 29, 1989, by Southwest Diversified, Inc., and was later amended to add Visitación Associates as plaintiff (the two plaintiffs are hereafter identified ...
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Opinion This is an appeal from an order awarding visitation rights with a minor child to a biologically unrelated person over the objections of both parents. On August 27, 1986, appellant, Carl Andrew Gayden, petitioned the Alameda County Superior Court for the dissolution of his marriage to Ava Gayden. On February 22, 1988, after dissolving the marriage, the court granted appellant ...
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Opinion Forest Lee Blade and John Anthony Pedraza were accused by information of a residential burglary (Pen. Code, *1543 §§ 459, 460, subd. 1) and of possession of concealable firearms by convicted felons (id. § 12021, subd. (a)), each with alleged prior convictions including serious felonies (id. §§ 667, 1192.7, subd. (c)). Pedraza pled guilty to the charges and admitted certain prior c...
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The National Labor Relations Board (NLRB) issued a Decision and Order against Continental Hagen Corporation (Continental) after finding that the corporation engaged in unfair labor practices relating to the closure of a plant. The NLRB petitions this court for enforcement of its Order pursuant to 29 U.S.C. § 160(e). 1 Continental, however, challenges our ability to enforce the Order,...
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932 F.2d 836 1993 A.M.C. 1813 PORT OF PORTLAND, Petitioner,v.DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS; UnitedStates Department of Labor, Respondents.SAIF CORPORATION; Jones Oregon Stevedoring Company;Brady-Hamilton Stevedore Company; Or Port ofPortland, Petitioners,v.DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS; DonaldR. Ronne, Sr., Respondents. Nos. 89-70353, 89-7040...
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Opinion Pursuant to a negotiated disposition Dana Patrick Gordon was convicted by plea of three counts of forgery (Pen. Code, § 470) and remaining counts were to be dismissed at the time of sentence. Represented by counsel, he entered these pleas before a magistrate. (Pen. Code, § 859a, subd. (a).) The “Felony Disposition Statement” recited: “District Attorney’s position on sentence: The defendant...
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delivered the opinion of the Court. The question presented in this case is whether a claim under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. §621 et seq., can be subjected to compulsory arbitration pursuant to an arbitration agreement in a securities registration application. The Court of Appeals held that it could, 895 F. 2d 195 (CA4 1990), and w...
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Opinion Appellant Frank Robinson was convicted of first degree robbery pursuant to California Penal Code section 211 on May 29, 1975. The jury found that he had acted as an aider and abettor to the crime. Because he had fled from the jurisdiction during the course of trial, sentencing did not take place in this matter until appellant was apprehended more than 14 years later. On October 20, 1989, h...
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*1335 OVERVIEW Loranza Verne Powell appeals his conviction and sentence for possession of cocaine with intent to distribute. We affirm. JURISDICTION The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over the timely appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. ISSUES (1) Whether the district court committed reversible error by declining...
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932 F.2d 1330 UNITED STATES of America, Plaintiff-Appellee,v.Theodore Albert GEYLER, Defendant-Appellant. No. 89-10162. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 17, 1990.Decided May 13, 1991. Robert J. Hirsh, Brian I. Rademacher, Hirsh, Sherick & Murphy, Tucson, Ariz., for defendant-appellant. Gary Clifford Korn, Asst. U.S. Atty....
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933 F.2d 729 Bruce KIRKBRIDE; Barbara Kirkbride; Ray Wong; Plaintiffs-Appellees,v.CONTINENTAL CASUALTY COMPANY, et al., Defendants-Appellees,Federal Deposit Insurance Corporation, as Manager of theFSLIC Resolution Fund, Defendant-Appellant. No. 90-15490. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 10, 1990.Decided May 13, 1991. Eugene J. Co...
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932 F.2d 842 19 Fed.R.Serv.3d 1507 Timothy HAMMER, Plaintiff-Appellee,v.Charles GROSS; Armando Zatarain; Newport Beach City,Defendants-Appellants,andLinda Delapena, et al., Defendant.Timothy HAMMER, Plaintiff-Appellant,v.Charles GROSS; Armando Zatarain; Newport Beach City, LindaDelapena et al., Defendants-Appellees. Nos. 87-6682, 88-5638. United States Court of Appeals,Ninth Ci...
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Faulkner appeals the district court’s upward departure from the Sentencing Guidelines following his conviction on five counts of bank robbery. Faulkner argues that the district court failed to give adequate reasons for departure and for the extent of departure. We vacate and remand for re-sentencing. FACTS AND PRIOR PROCEEDINGS Faulkner was indicted under 18 U.S.C. § 2113(a) on eight counts o...
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Opinion Petitioner, Trizec Properties, Inc., seeks a writ of mandate following the trial court’s denial of a motion to strike real parties’ request for a jury trial. Petitioner and real parties entered into a commercial lease agreement which contains the following provision: “Landlord [petitioner] and Tenant [real parties] hereby waive their respective right to trial by jury of any cause of...
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Opinion The City of Los Angeles (City) and its chief of police appeal from a judgment granting a peremptory writ of mandate compelling them to reinstate respondent Ronald Williams to his former position as a lieutenant in the Los Angeles Police Department. Respondent was dismissed from his position for misconduct. He filed a previous petition for writ of mandate to be reinstated to h...
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Opinion Defendant Ronald J. Ramos appeals a judgment after the trial court directed a verdict in favor of plaintiff Home Federal Savings & Loan Association (Home Federal) regarding Ramos’s liability on a personal loan guaranty. We affirm. Factual and Procedural Background Defendant Ramos was president of the Ramos/Jensen Company (R/J Co.), a California corporation. R/J Co. was t...
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Opinion I. Introduction Plaintiffs, Walter A. Walters, Janmarie Walters, Ernest C. Filice and Pauline Filice appeal a summary judgment entered against them in favor of defendant, California Insurance Guarantee Association (CIGA). We affirm. II. Procedural History In September 1982, plaintiffs along with Heritage Home Loans and other corporate entities filed a complaint in the Superior Court of Ora...
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Opinion Plaintiffs appeal from an order denying their motion to disqualify defendants’ attorneys on the ground of conflict of interest. We affirm. Facts and Proceedings Below Plaintiffs H. F. Ahmanson & Company and others (hereafter Ahmanson) hired defendant Salomon Brothers, Inc., to provide financial advice and investment banking services in connection with Ahmanson’s acquisit...
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Opinion Appellants, owners of a mobilehome park, challenge a City of Morgan Hill mobilehome rent control ordinance, claiming that its lack of a “vacancy decontrol” provision, which allows rents to be returned to market levels when a tenant leaves, effected a taking of their property without just compensation. We conclude that the pleadings here state facts insufficient to constitute a tak...
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230 Cal. App. 3d 59 (1991) 281 Cal. Rptr. 165 MARIAN P. GRIFFITH et al., Plaintiffs and Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Appellant. Docket No. B045115. Court of Appeals of California, Second District, Division Five. May 13, 1991. *63 COUNSEL Curtis L. Gemmil for Plaintiffs and Appellants. Spray, Gould & Bowers and James S. Link for Defendant and App...
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229 Cal.App.3d 1600 (1991) 281 Cal. Rptr. 15 OLD LINE LIFE INSURANCE COMPANY OF AMERICA et al., Petitioners, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; IMOGENE S. SILVERA TRUST, Real Party in Interest. Docket No. A051979. Court of Appeals of California, First District, Division Four. May 9, 1991. *1601 COUNSEL Kornblum, Ferry & Frye, John C. Ferry and Samuel M. Zaif for Petitioners....
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230 Cal. App. 3d 30 (1991) 280 Cal. Rptr. 904 TIME FOR LIVING, INC., et al., Cross-complainants and Appellants, v. GUY HATFIELD HOMES/ALL AMERICAN DEVELOPMENT COMPANY, Cross-defendant and Respondent. Docket Nos. D012030, D012031, D012142. Court of Appeals of California, Fourth District, Division One. May 10, 1991. *33 COUNSEL Edwards, White & Sooy and Robert von Zirngibl for Cross-complainant...
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Defendant-appellant Robert Hoy was sentenced under the Federal Sentencing Guidelines to 78 months in custody for robbing the Security Pacific Bank in Portland, Oregon. After the robbery, but before he was sentenced on the robbery charge, Hoy committed two other offenses which resulted in state court sentences. The district court counted these state sentences as “prior sentences” in calculating ...
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*218 Opinion Prior judicial decisions have dealt with Clear Lake, a natural and navigable lake in Northern California. Its water level is subject to marked, seasonal fluctuations. Those prior decisions have recognized that, under normal conditions, the “minimum elevation” of the water level is approximated at zero elevation on the Rumsey Gauge, a measuring device placed in the la...
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ORDER This matter comes before the court on the plaintiff’s motion for summary judgement. Continental Casualty Company (“Continental”), an insurer of the asbestos manufacturer, Fibreboard Corporation (“Fi-breboard”), has brought an action seeking declaratory judgement that it is not obligated to indemnify Fibreboard for punitive damages awarded against Fibreboard in jury trials conducted ...
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Opinion The Department of Motor Vehicles (department) appeals from a judgment of the Contra Costa County Superior Court granting a writ of mandate directing the department to set aside an order suspending the driving privilege of John Michael Gaston for 18 months. We shall reverse the judgment issuing the writ and vacate the writ. *76Factual and Procedural Background On February 28, 1984, Gaston p...
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Concepcion Ceguerra is an elderly, indigent woman who has been eligible for Supplemental Security Income (SSI) payments under the Social Security Act since the early 1980s. When the government wrongfully terminated her benefits in 1982, she appealed. While that appeal was pending, Ceguerra lived in her son’s home. She agreed that she would repay her son for her share of the household expenses a...
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Marvin Carpenter (Carpenter) and Carpenter’s Gold Fish Farm, Inc. (the company) were convicted of making false statements to the United States Fish and Wildlife Service (the Service) in violation of 18 U.S.C. § 1001; of killing migratory birds in violation of the Migratory Bird Treaty Act, 16 U.S.C. § 701; and, of violating the Lacey Act, 16 U.S.C. § 3372 by acquiring migratory birds killed in ...
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William E. Cambra, Jr. plead guilty on April 17, 1990, to three counts of violating the Food, Drug, and Cosmetic Act. He appeals his sentence of 24 months plus one year of supervised release, claiming the district court should have applied the sentencing guideline relating to food and drug offenses, U.S.S.G. § 2N2.1, rather than the one for fraud and deceit, § 2F1.1. In the alternative, Cambra ...
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Appellant United States appeals the district court's six-month downward departure of appellee Steven J. Sanchez’ sentence for unarmed bank robbery. Appellant argues that the district court’s rationale for departing was insufficient under the Sentencing Guidelines. The district court reasoned that the remoteness of appellee’s convictions, the calculation of a parole violation for sentencing purpos...
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OPINION Defendant Ronald E. Blair (“Blair”) is charged, inter alia, with one count of violating the Hobbs Act, 18 U.S.C. § 1951, in that Blair allegedly “did knowingly and *1385 intentionally obstruct and attempt to obstruct ... and affect commerce by extortion ... in that defendant obtained cash ... and other property from ... Raymond Vyeda ... under color of official right.” Superseding I...
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230 Cal. App. 3d 118 (1991) 280 Cal. Rptr. 912 THE PEOPLE, Plaintiff and Respondent, v. VINCENT TODD McDADE, Defendant and Appellant. Docket No. B039902. Court of Appeals of California, Second District, Division Four. May 15, 1991. *121 COUNSEL Barbara Springer Perry, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp and Daniel E. Lungren, Attorneys Genera...
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230 Cal. App. 3d 83 (1991) 281 Cal. Rptr. 250 JAMES CURRIE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest. EUGENE FINLEY, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket Nos. B053156, B053232. Court of Appeals of California, Second District, Division Seven. May 14, 1991. *86 C...
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126 B.R. 584 (1991) In re John McGregor FULKROD, Debtor. John McGregor FULKROD, Appellant, v. Edmund R. BARMETTLER, Trustee, Appellee. BAP No. NV-89-1919-ORMe, Bankruptcy No. 88-0707. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted January 24, 1991. Decided April 29, 1991. *585 Daniel S. Corder, Reno, Nev., for appellant. John White, Jr., Reno, Nev., for appell...
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FACTS The United States, through the Departments of the Navy and Energy, contracted with Williams Brothers Engineering Company [“WBEC”] to manage oil drilling operations on federal land in California. California assessed WBEC $14 million in sales and use taxes for the years 1975 through 1981. The assessments were made pursuant to section 6384 of California’s Revenue & Taxation Code, which ...
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Diana Todaro Vorsheck and John P. Vor-sheck appeal pro se the tax court’s decision upholding the Commissioner of Internal Revenue’s (“Commissioner”) determination of a tax deficiency of $10,910 for the 1982 tax year. The tax court upheld the Commissioner’s disallowance of a deduction for losses incurred through their investment in Western Reserve Oil & Gas Co., Ltd. (“WROG”), a limited partners...
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Opinion Under the guise of a Civil Code section 224 proceeding to dispense with a natural father’s consent for a stepparent adoption, the superior court essentially terminated the father’s parental rights on the basis of abandonment (Civ. Code, § 232, subd. (a)(1)), although a cause of action under the latter section had been dismissed without prejudice. We reverse. I Allison H. was born in August...
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Opinion In this habeas corpus proceeding, Roland Edwards, Pat Edwards, Linda Martin, Terry Martin, and Shavin Kingsmere *175Kennels (collectively referred to as petitioners) challenge the order of the superior court finding them in contempt for their failure to comply with a writ of possession directing them to transfer possession of a championship show dog to Dr. Patricia Walters. Petitioners con...
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230 Cal. App. 3d 141 (1991) 283 Cal. Rptr. 604 LAURIE L. PUIG et al., Plaintiffs and Respondents, v. RICKY JOE RYBERG, Defendant and Appellant. Docket No. D010813. Court of Appeals of California, Fourth District, Division One. May 15, 1991. *143 COUNSEL Jon A. Jensen and Richard B. Hudson for Defendant and Appellant. John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Atto...
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230 Cal. App. 3d 112 (1991) 281 Cal. Rptr. 188 In re the Marriage of SANDI MARIE and THOMAS PAUL GREGORY. COUNTY OF CONTRA COSTA, Appellant, v. THOMAS PAUL GREGORY, Respondent. Docket No. A046798. Court of Appeals of California, First District, Division One. May 15, 1991. *113 COUNSEL John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Richard B. Iglehart, Chief Assistant Attorney Gener...
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933 F.2d 759 137 L.R.R.M. (BNA) 2344, 59 USLW 2759,118 Lab.Cas. P 10,751 GOSS GOLDEN WEST SHEET METAL, INC.,Petitioner-counter-claim-respondent-Appellant,v.SHEET METAL WORKERS INTERNATIONAL UNION, LOCAL 104,Respondent-counter-claimant-Appellee. No. 90-15155. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 10, 1991.Decided May 17, 1991. Steph...
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933 F.2d 677 59 USLW 2723 Steven A. ZAMSKY; General Partner, dba the Ponderosa ofKlamath, Ltd., an Oregon limited partnership,Plaintiff-Appellant,v.Stafford HANSELL; Lorin Jacobs; Anne Squier; John Dowers;James F. Ross; Thomas Walsh; Roger Hamlin;Clyde Hamstreet, Defendants-Appellees. No. 89-35281. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 7, ...
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230 Cal. App. 3d 147 (1991) 281 Cal. Rptr. 191 GERALD P. COLAPINTO et al., Plaintiffs and Appellants, v. COUNTY OF RIVERSIDE et al., Defendants and Respondents. Docket No. E007556. Court of Appeals of California, Fourth District, Division Two. May 15, 1991. *149 COUNSEL Herbert C. Schulze for Plaintiffs and Appellants. Roberts & Morgan, Matthew J. Marnell, Greines, Martin, Stein & Richlan...
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230 Cal.App.3d 180 (1991) 281 Cal. Rptr. 195 THE PEOPLE, Plaintiff and Respondent, v. JEFFREY MARK IRVIN, Defendant and Appellant. Docket No. B044008. Court of Appeals of California, Second District, Division Five. May 16, 1991. *182 COUNSEL Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Rich...
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ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT I. STATEMENT OF THE CASE During hours of darkness on January 27, 1988, plaintiff attempted to enter the United States illegally. While in the United *295States, but just north of the border, plaintiff and two companions had an altercation with six members of the Border Crime Prevention Unit (BCPU), in which the two companions were fatally shot...
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230 Cal. App. 3d 197 (1991) 281 Cal. Rptr. 205 THE PEOPLE, Plaintiff and Appellant, v. OMAR FUENTES MARTINEZ, Defendant and Respondent. Docket No. E007463. Court of Appeals of California, Fourth District, Division Two. May 16, 1991. *198 COUNSEL Grover C. Trask II, District Attorney, Don R. Inskeep, Assistant District Attorney, Gary Tranbarger and Michele D. Levine, Deputy District Attorneys, for...
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OPINION Plaintiff Albert J. Miller (“Miller”) brings this action against defendant United States of America (“Government”) seeking: a) damages for failure to release a lien pursuant to 26 U.S.C. § 7432; b) reimbursement of attorneys’ fees under 26 U.S.C. § 7430; and c) damages for unauthorized collection actions pursuant to 26 U.S.C. § 7433. The Government now moves for summary judgment o...
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OPINION The appellee filed an adversary proceeding alleging that certain payments made to the appellant, UIC, Inc. (“UIC”), 1 within ninety days prior to the debtor’s bankruptcy were preferential transfers under 11 U.S.C. § 547(b). 2 UIC contended that the payments were not preferential because they were payments in the ordinary course of business under section 547(c...
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230 Cal. App. 3d 230 (1991) 282 Cal. Rptr. 12 THE PEOPLE, Plaintiff and Respondent, v. TYRANT OTE WALKER, Defendant and Appellant. Docket No. B040886. Court of Appeals of California, Second District, Division Five. May 17, 1991. *232 COUNSEL John D. O'Loughlin, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Rich...
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delivered the opinion of the Court. This case arose from an animal welfare dispute. At issue is the fate of certain monkeys used for medical experiments funded by the Federal Government. The case comes before us, however, on a narrow jurisdictional question: whether a suit filed in state court challenging the treatment of these monkeys was properly removed to the federal court by responden...
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The judgment of the District Court of Appeal of Florida, First District, is affirmed by an equally divided Court. Justice O’Connor took no part in the decision of this case....
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delivered the opinion of the Court. This case calls upon us to determine whether we should fashion a federal common law rule obliging the representative shareholder in a derivative action founded on the Investment Company Act of 1940, 54 Stat. 789, 15 U. S. C. § 80a-l(a) et seq., to make a demand on the board of directors even when such a demand would be excused as futile under state law. Bec...
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934 F.2d 1048 UNITED STATES of America, Plaintiff-Appellee,v.Wilfried VAN CAUWENBERGHE, Defendant-Appellant,Williams & Connolly, Real-party-in-interest-Appellant.Roger BIARD, Plaintiff-Appellee,v.Alan H. BLAIR, et al., Defendants,andWilfried Van Cauwenberghe, Defendant-Appellant,andWilliams & Connolly, Appellant. Nos. 89-50275, 89-55868. United States Court of Appeals,Ninth Cir...
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933 F.2d 1481 EMPLOYERS INSURANCE OF WAUSAU, a Mutual Company,Plaintiff-Counter-Defendant, Appellee,v.NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH,Defendant-Counter-Claimant, Appellant. No. 89-16307. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 3, 1991.Decided May 20, 1991. Michael F. Perlis, Stroock, Stroock & Lavan, Los Angeles, C...
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230 Cal. App. 3d 207 (1991) 281 Cal. Rptr. 216 SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE OF GREATER LOS ANGELES et al., Plaintiffs and Respondents, v. AL MALAIKAH AUDITORIUM COMPANY, Defendant and Appellant. Docket No. B039234. Court of Appeals of California, Second District, Division Three. May 17, 1991. *210 COUNSEL Joseph W. Fairfield for Defendant and Appellant. Cooper, Epstein & Hurewitz,...
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Opinion May persons who commit crimes while demonstrating at a medical clinic that provides abortions, among other things, to its patients, escape criminal responsibility by invoking the defense of necessity? No. The three appellants in this case were found by a jury to have engaged in criminal conduct while participating in such a demonstration at a family planning clinic. Appellants and the...
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AMENDED OPINION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT I. INTRODUCTION This preference and fraudulent conveyance action presents the issue of whether the contract between the parties, relating to distribution rights in three motion picture films, is an option contract or a conditional sales contract. If it is a conditional sales contract, the Court must determine whether the creditor ...
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ORDER DENYING MOTIONS FOR RECONSIDERATION AND GRANTING CLASS COUNSEL’S MOTION FOR STAY AND SETTING STATUS CONFERENCE. The Law Office of David B. Gold has moved the court to set aside its earlier orders1 and to substitute the Gold firm as class counsel in place of Lowey, Dannen-berg, Bemporad & Selinger, P.C. The Gold firm contends that the Lowey bid was unethical and competitive selection of clas...
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*265 Opinion Plaintiffs David and Lou Emma Slone appeal from the Inyo County Superior Court’s denial of their petition, pursuant to 25 United States Code section 1914, a provision of the Indian Child Welfare Act (ICWA), in which they sought to invalidate actions of the Inyo County Juvenile Court. The actions to which plaintiffs objected had taken place in a juvenile court depende...
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Opinion Defendant and appellant Charles S. Dixon appeals from a judgment compelling appellant to comply with a previous settlement agreement with plaintiffs and respondents Malouf Bros, (a general partnership), James Malouf and Clark Harmening. (Code Civ. Proc., § 664.6.) 1 Respondents are grading and excavating contractors. Appellant contracted for respondents to construct a road on proper...
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Opinion May the court reinstate a defendant on a previously forfeited bail bond without prior notice to the surety? We answer this question in the negative, and consequently reverse a summary judgment 1 against appellant Ranger Insurance Company (Ranger). On July 8, 1989, Ranger, through its agent David Weathers Bail Bonds, posted a bail bond in the amount of $6,000 for Jose Luis Villalobos...
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Concurring and Dissenting.— I respectfully dissent from that portion of the majority opinion that reverses and dismisses defendant’s conviction for felony false imprisonment. I concur in the remainder of the opinion. *1122Defendant’s contention that he may not be convicted of false imprisonment because it is a necessarily included offense of kidnapping and the Attorney General’s concession in that...
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Opinion In this mandamus proceeding, we are asked to decide generally if a defendant who is subject to a mandatory minimum county jail sentence for a driving under the influence conviction may be eligible to participate in an electronic home detention program authorized by Penal Code section 1203.016. Specifically, the People seek a peremptory writ to vacate a sentencing order placing the defendan...
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933 F.2d 772 STATE FARM FIRE AND CASUALTY CO., Plaintiff-Appellee,v.William ENGSTROM, Individually and as Special Administratorof the Estate of Cynthia Lynice Engstrom, and as Guardian AdLitem of Sandra Engstrom, a minor; Scott Engstrom, a minor;Linda Engstrom, Defendants-Appellants. No. 90-15105. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 13, 1991.Deci...
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INTRODUCTION On March 10, 1987, Charles Laughlin pleaded guilty to two counts of bank fraud. The district court sentenced him to five years’ imprisonment on the first count. The court also sentenced him to a five year prison term on the second count, but expressly suspended the execution of that sentence and placed Laughlin on probation for a period of five years “to commence upon his release f...
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933 F.2d 781 Selwyn A. ROBINSON, Trustee under the Will of Alymer F.Robinson; Eleanor Robinson, Trustee under the Will ofAylmer F. Robinson; Bruce R. Robinson, Trustee under theWill of Aylmer F. Robinson; Russell S. Robinson; Helen M.Robinson, Individually and as Executrix of the Estate ofLester B. Robinson; Ruth R. Le Fiell; Marion R. Keat;Jean R. Weir; Keith P. Y, Plaintiffs,v.George ...
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With this case, we revisit the field of labor law by asking a familiar question: Are an employee’s claims, in this instance alleging assault and battery and intentional infliction of emotional distress, preempted by Section 301 of the Labor Management Relations Act (LMRA)? Familiarity, however, has not bred facility. There is no sure route through the thicket and, as we face this problem anew, ...
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230 Cal. App. 3d 349 (1991) 281 Cal. Rptr. 335 In re STEVEN A. et al., Minors. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. LORI A. et al., Objectors and Appellants. Docket No. E007706. Court of Appeals of California, Fourth District, Division Two. May 20, 1991. *350 COUNSEL Patricia Herzog and Theodore S. Goodwin, under appointments by the Court of Appeal, ...
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230 Cal. App. 3d 335 (1991) 281 Cal. Rptr. 327 EL DORADO PALM SPRINGS, LTD., etc., Plaintiff and Respondent, v. RENT REVIEW COMMISSION OF THE CITY OF PALM SPRINGS, Defendant; RESIDENTS OF THE EL DORADO MOBILE HOME PARK, Real Parties in Interest and Appellants. Docket No. E007483. Court of Appeals of California, Fourth District, Division Two. May 20, 1991. *336 COUNSEL Charles A. Prawdzik for Real...
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230 Cal. App. 3d 245 (1991) 281 Cal. Rptr. 261 CONRAD SCHMITT et al., Plaintiffs and Appellants, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant and Appellant. Docket No. D010952. Court of Appeals of California, Fourth District, Division One. May 17, 1991. *247 COUNSEL Hammett & Whitson, Fred U. Hammett, Jr., Harrigan, Ruff, Ryder & Sbardellati and Sean T. O'Bryan for Plaintiffs and Appe...
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Opinion Facts and Proceedings Below Defendant was convicted of committing lewd acts upon a child, his stepdaughter, I. He appeals and seeks relief via habeas corpus on the ground of juror misconduct. We ordered the petition for habeas corpus considered with defendant’s appeal. Following defendant’s conviction, his counsel learned that during deliberation some of the Spanish-speaking jurors ...
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Opinion Defendant and cross-complainant Patricia Gile, who was represented in her marital dissolution action by plaintiff and cross-defendant attorney James H. McDaniel, appeals from a judgment entered after a court trial in favor of plaintiff on his complaint for legal fees and on her cross-complaint for legal malpractice and sexual harassment. Defendant contends that the order granting plaint...
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Opinion Plaintiff Santa Monica Rent Control Board (Board) appeals from an order dismissing its second amended complaint (SAC) after a demurrer was sustained without leave to amend. Since we agree with the trial court’s finding that the Board cannot state a cause of action, we affirm. Factual and Procedural Synopsis A. Introduction On August 3, 1988, the Board filed ...
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DECISION AND ORDER RE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT On October 29, 1990 the court heard plaintiffs’ Motion for Summary Judgment. Upon due consideration of the written and oral arguments of the parties, the court now enters its order denying the motion as set forth herein. I. BACKGROUND Plaintiffs in this case are air traffic controllers at Edwards Air Force Base. Prior to May 24, 1988 pl...
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230 Cal. App. 3d 319 (1991) 281 Cal. Rptr. 317 WILLIAM CLIFFORD JOHN MacDONALD, a Minor, etc., et al., Plaintiffs and Appellants, v. THE STATE OF CALIFORNIA et al., Defendants and Respondents. Docket No. D010598. Court of Appeals of California, Fourth District, Division One. May 20, 1991. *321 COUNSEL Thorsnes, Bartolotta, McGuire & Padilla and Frederic L. Gordon for Plaintiffs and Appellants...
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230 Cal. App. 3d 355 (1991) 281 Cal. Rptr. 362 ABBETT ELECTRIC CORPORATION, Plaintiff and Respondent, v. CALIFORNIA FEDERAL SAVINGS & LOAN ASSOCIATION et al., Defendants; CITICORP REAL ESTATE, INC., et al., Interveners and Appellants. Docket No. A049514. Court of Appeals of California, First District, Division Four. May 21, 1991. *356 COUNSEL Leland, Parachini, Steinberg, Flinn, Matzger &...
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Leonard George Maree appeals from the district court’s imposition of sentence after his guilty plea to conspiracy to distribute cocaine. Maree contends that the district court violated Federal Rules of Criminal Procedure 11 and 32. Joseph Brooks appeals from the district court’s order denying his motion for a new trial. Brooks was convicted of conspiracy to distribute cocaine. He contends that a ...
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933 F.2d 791 SEVEN STAR, INC.; Elluz Corporation, Plaintiffs-Appellants,v.UNITED STATES of America; U.S. Immigration andNaturalization Service; Ernest E. Gustafson,District Director, Los Angeles DistrictOffice, INS Service, et al.,Defendants-Appellees. No. 90-55596. United States Court of Appeals,Ninth Circuit. Submitted May 15, 1991.*Decided May 22, 1991. Laurence A....
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932 F.2d 1571 ALASKA AIRLINES, INC., Plaintiff-Appellant,v.UNITED AIRLINES, INC., Defendant-Appellee.ALASKA AIRLINES, INC., Plaintiff-Appellee,v.UNITED AIRLINES, INC., Defendant-Appellant. Nos. 89-35054, 89-35226. United States Court of Appeals,Ninth Circuit. May 22, 1991. James N. Leik, Perkins, Coie, Anchorage, Alaska, for plaintiff-appellant-cross-appellee. J. C...
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230 Cal. App. 3d 389 (1991) 281 Cal. Rptr. 354 THE PEOPLE, Plaintiff and Respondent, v. ARTHUR GARY SILVER, Defendant and Appellant. Docket No. B045046. Court of Appeals of California, Second District, Division Six. May 21, 1991. *391 COUNSEL Robert G. Foote for Defendant and Appellant. John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Richard B. Iglehart, Chief Assistant Attorney Gen...
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230 Cal. App. 3d 416 (1991) 281 Cal. Rptr. 343 GERALD R. GILMORE, Petitioner, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; ALICE M. SCHMIDT, Real Party in Interest. Docket No. C009964. Court of Appeals of California, Third District. May 21, 1991. *417 COUNSEL Greve, Clifford, Diepenbrock & Paras, Edward T. Clifford and William L. Baker for Petitioner. No appearance for Respondent. ...
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Opinion Defendant Thomas L. McKelvey III appeals a judgment of conviction of neglect of a dependent adult. (Pen. Code, 1 § 368.) We affirm and hold section 368 provided fair warning of the conduct it prohibits as to defendant. Facts Dolores McKelvey, a multiple sclerosis victim, lived at home with her daughter Theresa and her son, the defendant. Mrs. McKelvey was paralyzed and unable to w...
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*409 Opinion Ramiro Alcocer and William Ostini appeal from judgments following a jury’s convicting them of one count of perjury (Pen. Code, § 118). 1 The trial court sentenced Alcocer to 60 days in county jail and Ostini to 80 days as a condition of felony probation, both jail terms stayed pending appeal. They contend that their self-incrimination and due process right...
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229 Cal.App.3d 1560 (1991) 281 Cal. Rptr. 375 UNITED PACIFIC INSURANCE COMPANY, Plaintiff and Respondent, v. McGUIRE COMPANY et al., Defendants and Appellants. Docket No. A05445. Court of Appeals of California, First District, Division One. May 22, 1991. *1561 COUNSEL Cooley, Godward, Castro, Huddleson & Tatum, Paul A. Renne, James A. Richman and John W. Crittenden for Defendants and Appellan...
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Jacqueline and Michael Harrell appeal the district court’s dismissal with prejudice of their pendent state-law claims for fraud, breach of the implied covenant of good faith and fair dealing, and civil conspiracy. The Harrells contend the district court abused its discretion by not remanding these claims to state court after dismissing the Harrells’ claims under the Racketeer Influenced and Cor...
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ORDER DENYING PLAINTIFFS’ MOTION TO REMAND This matter came before this Court on Plaintiff’s Motion to Remand. The motion is DENIED. BACKGROUND: Plaintiffs Kimball Small Properties, We-stall Corporation, Kimball Small Investments 103, Camsi III, and Oakmead Holdings, Inc., sued defendants for breach of insurance contract and bad faith. Plaintiffs in this suit are defendants in an underlying...
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230 Cal.App.3d 438 (1991) 281 Cal. Rptr. 568 THE PEOPLE, Plaintiff and Respondent, v. TYRONE HAROLD POWELL, Defendant and Appellant. Docket No. C007999. Court of Appeals of California, Third District. May 22, 1991. *439 COUNSEL Ralph D. Eavenson, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attor...
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Opinion —Defendant’s counsel has briefed no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071]. 1 In People v. Coleman, supra, 48 Cal.3d 112, we affirmed the judgment convicting defendant of murder and sentencing him to death. However, we vacated the prison sentences on the remaini...
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933 F.2d 798 Michael COOPER, husband, in his own capacity and as parentof Abram and Adam Cooper, minors; Lidia Cooper, wife, inher own capacity and as parent of Abram Cooper and AdamCooper, minors, Plaintiffs-Appellees,v.Clarence DUPNIK, Sheriff, Pima County; Tom Taylor, anemployee of Pima County Sheriff's Department;Weaver Barkman, an employee of PimaCounty Sheriff's Department,Defendants-A...
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230 Cal.App.3d 444 (1991) 281 Cal. Rptr. 415 In re the Marriage of GERALDINE A. and PERRY A. NICE. GERALDINE A. NICE, Respondent, v. PERRY A. NICE, Respondent; BOARD OF PENSION COMMISSIONERS OF THE CITY OF LOS ANGELES, Appellant. Docket No. B052240. Court of Appeals of California, Second District, Division Three. May 23, 1991. *446 COUNSEL James K. Hahn, City Attorney, Siegfried O. Hillmer, Assis...
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Opinion Defendant filed a petition seeking a writ of mandate ordering the superior court to honor his motion pursuant to Code of Civil Procedure section 1 170.6 to disqualify the Honorable Beauford Phelps, judge of the superior court. Defendant’s motion was denied as being untimely pursuant to a policy (Court Policy) enacted by the Criminal Departments of the Central District of the Superior ...
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230 Cal. App. 3d 1291 (1991) 282 Cal. Rptr. 492 BENJAMIN COOPER, Plaintiff and Appellant, v. KENNETH W. KIZER, as Director, etc., Defendant and Respondent. Docket No. B049842. Court of Appeals of California, Second District, Division Four. May 23, 1991. *1293 COUNSEL Joy Young Stephenson for Plaintiff and Appellant. *1294 John K. Van De Kamp and Daniel E. Lungren, Attorneys General, Charlton G. H...
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230 Cal. App. 3d 424 (1991) 281 Cal. Rptr. 367 HOMESTEAD SAVINGS, Plaintiff and Appellant, v. FRANK DARMIENTO, Defendant and Respondent. Docket No. B041160. Court of Appeals of California, Second District, Division Five. May 22, 1991. *428 COUNSEL Rand E. Pinsky, Michael A. Warren and Kerry B. Conway for Plaintiff and Appellant. Adams, Duque & Hazeltine, Richard T. Davis, Jr., Rande S. Sotoma...
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53 Cal.3d 955 (1991) 810 P.2d 131 281 Cal. Rptr. 273 THE PEOPLE, Plaintiff and Respondent, v. HENRY EARL DUNCAN, Defendant and Appellant. Docket No. S004710. Crim. No. 25416. Supreme Court of California. May 23, 1991. *962 COUNSEL Mitchell Zimmerman, under appointment by the Supreme Court, Sally M. Abel, Wayne D. Skigen, Stacie L. Solari, Fenwick & West, and Fenwick, Davis & West for Defe...
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Opinion Appeal by defendants and cross-complainants, bodies of the Presbyterian Church (U.S.A.), from a judgment (partial) 1 of the Los Angeles County Superior Court in favor of plaintiff, cross-defendant and respondent, Korean United Presbyterian Church of Los Angeles, the Honorable Dion G. Morrow, Judge presiding. Reversed. I. Introduction On this appeal we are...
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Howard Waco, a Los Angeles County public defender, appeals the district court’s dismissal of his action for damages against California Superior Court Judge Raymond Mireles for failure to state a claim. Because the district court directed entry of final judgment as to Judge Mireles pursuant to Fed.R.Civ.P. 54(b), we have jurisdiction over Waco’s appeal. 1 We reverse and remand. W...
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934 F.2d 209 MORTGAGES, INC.; John P. Mullen, Petitioners,v.UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA (LASVEGAS), Respondent,andLawyers Title Insurance Corporation; Richard G.Messersmith; Deaun Messersmith; Douglas D.Vollmer; Deanna J. Vollmer; Gordon E.Beckstead; CamilleBeckstead-Stockdale,RealParties in Interest. No. 90-70418. United States Court of Appeals,Ninth...
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Opinion Penal Code section 1016.5 mandates the criminal courts, before accepting a plea of guilty or nolo contendere to most crimes, to advise the defendant of the consequences a conviction may have on a person who is not a citizen of the United States. The statutory admonition reads: “If you are not a citizen, you are hereby advised that conviction of the offense for which you have been ...
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230 Cal.App.3d 586 (1991) 281 Cal. Rptr. 441 CAROL ANN TURLEY, Plaintiff and Appellant, v. JOSEPH WOOLDRIDGE et al., Defendants and Respondents. Docket No. F013037. Court of Appeals of California, Fifth District. May 23, 1991. *587 COUNSEL Thomas J. Anton, Elizabeth E. Mariani and Franklin Gordon for Plaintiff and Appellant. *588 Clifford, Jenkins & Brown and James E. Brown for Defendants and...
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230 Cal.App.3d 595 (1991) 285 Cal. Rptr. 435 In re JAMES RANDALL RUZICKA on Habeas Corpus. Docket No. F014251. Court of Appeals of California, Fifth District. May 23, 1991. *596 COUNSEL John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Richard B. Iglehart, Chief Assistant Attorney General, Morris Lenk and Paul D. Gifford, Deputy Attorneys General, for Appellant. *597 Paul Delano Wolf,...
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delivered the opinion of the Court. In this case we return again to the history and geography of the Ohio River valley, as we consider the location of the boundary of the Commonwealth of Kentucky with the State of Illinois. We hold it to be the line of the low-water mark along the river’s northerly shore as it was in 1792. *382 I — I In July 1986, Illinois sought leave t...
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*576Opinion A petition was filed in the Los Angeles County Superior Court seeking to declare Andrew I. a ward of the court alleging he committed a burglary on September 18, 1989. (Welf. & Inst. Code, § 602; Pen. Code, § 459.) The court sustained the petition. The case was then transferred to Orange County where Andrew lived. (Welf. & Inst. Code, § 750.) At the disposition hearing, the court found...
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*609 Opinion Billy Leo Briggs sued the Public Defender of Monterey County (Michael Lawrence) and a deputy public defender (Arthur Kaufmann) for attorney malpractice. The defendants’ general demurrers and motions for judgment on the pleadings were granted without leave to amend. Briggs appeals from the trial court’s order, which we shall treat as an appealable final judgment for d...
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230 Cal. App. 3d 775 (1991) 281 Cal. Rptr. 295 FRANK KNIGHTS, Plaintiff and Appellant, v. HEWLETT PACKARD et al., Defendant and Respondent. Docket No. H007097. Court of Appeals of California, Sixth District. April 24, 1991. *777 COUNSEL Silver & Katz and Louis D. Silver for Plaintiff and Appellant. Gibson, Dunn & Crutcher, Christopher J. Martin and Craig A. Selness for Defendant and Respo...
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230 Cal. App. 3d 652 (1991) 281 Cal. Rptr. 494 BRYAN NICOLLE-WAGNER, Plaintiff and Appellant, v. GEORGE DEUKMEJIAN, as Governor, etc., et al., Defendants and Respondents. Docket No. B053678. Court of Appeals of California, Second District, Division Five. May 24, 1991. *654 COUNSEL Bryan W. Nicolle-Wagner, in pro. per., for Plaintiff and Appellant. John K. Van de Kamp and Daniel E. Lungren, Attorn...
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Opinion This case tests the validity of an amendment to certain milk marketing plans issued by the director of the Department of Food and Agriculture on July 14, 1989, effective August 1, 1989. Appellants Golden Cheese Company of California, Integrated Protein Technology, and Leprino Foods Company filed a petition for writ of mandate to invalidate the amendment. The trial court declined t...
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231 Cal.App.3d 265 (1991) 281 Cal. Rptr. 473 MARSHA V., Plaintiff and Appellant, v. HAROLD E. GARDNER, Defendant and Respondent. Docket No. B050677. Court of Appeals of California, Second District, Division Seven. May 24, 1991. *267 COUNSEL Patricia A. Gray and Donna Gaetano for Plaintiff and Appellant. Sharon Lybeck Hartmann, Jon W. Davidson, Paul L. Hoffman, Hufstedler, Kaus & Beardsley, De...
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934 F.2d 1075 UNITED STATES of America, Plaintiff-Appellee,v.Felipe BELTRAN-FELIX, Defendant-Appellant. No. 90-50079. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 9, 1990.Decided May 28, 1991. John Lanahan, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant. Shane P. Harrigan and D. Thomas Ferraro, Asst. U.S. A...
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Opinion I. Introduction We review a decision in which respondent Workers’ Compensation Appeals Board (Board) concluded Shirley Clark’s application for death benefits was barred by the statute of limitations. We agree. II. Statement of Facts On July 15, 1987, John M. Clark filed an application for inter vivos workers’ compensation benefits. The application ...
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*624Opinion Respondent moved to recuse the district attorney from representing appellant in child support modification proceedings. The trial court granted respondent’s motion, found parts of The Agnos Child Support Standards Act of 1984 unconstitutional, and directed the district attorney’s office to pay respondent’s attorney’s fees incurred to bring the recusal motion. The orders of the trial c...
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Opinion Introduction As originally presented, this case involved federal and state constitutional challenges to Water Code section 30700.6. At that time, the section specified that only landowners in the Sierra Lakes County Water District could vote in district elections or be a member of the district’s governing board of directors. As a result of this statute, Sierra residents who d...
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Opinion Sandy Gallin and others (collectively Gallin) seek extraordinary relief after the court denied their motion to transfer venue. Gallin contends Los Angeles County is the proper venue because “some” individual defendants reside there, no corporate defendant has its principal place of business in San Diego County, and a “single retail sale” in San Diego is insufficient for venue in a...
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230 Cal. App. 3d 741 (1991) 281 Cal. Rptr. 463 LAWRENCE KRUSER et al., Plaintiffs and Appellants, v. BANK OF AMERICA NT&SA, Defendant and Respondent. Docket No. F012981. Court of Appeals of California, Fifth District. May 24, 1991. *743 COUNSEL Kimble, MacMichael & Upton, D. Tyler Tharpe and Michael J. Jurkovich for Plaintiffs and Appellants. George W. Coombe, Jr., Winslow Christian and L...
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Opinion Are juveniles similarly situated with adults, such that a minor is denied “equal protection” because juvenile proceedings under *753Welfare and Institutions Code section 602 are not protected, unlike adult proceedings, by the misdemeanor refiling prohibition of Penal Code section 1387? In the published portion of our opinion, we analyze this question and come to the conclusion that the an...
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230 Cal. App. 3d 768 (1991) 281 Cal. Rptr. 459 THE PEOPLE, Plaintiff and Respondents, v. RANDOLPH SANCHEZ, Defendant and Appellant. Docket No. H007225. Court of Appeals of California, Sixth District. May 24, 1991. *770 COUNSEL Christine F. Beraldo, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, Richard B. Iglehart, Chief Assistant Attor...
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230 Cal. App. 3d 727 (1991) 281 Cal. Rptr. 602 GOLDEN CHEESE COMPANY OF CALIFORNIA et al., Plaintiffs and Appellants, v. HENRY J. VOSS as Director, etc., et al., Defendants and Respondents. Docket No. E007837. Court of Appeals of California, Fourth District, Division Two. May 24, 1991. *729 COUNSEL Gibson, Dunn & Crutcher, Richard G. Duncan, Jr., Jeffrey A. Robinson and Edward L. Xanders for ...
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230 Cal. App. 3d 923 (1991) 281 Cal. Rptr. 500 GEORGE E. CARPENTER, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent. Docket No. B047676. Court of Appeals of California, Second District, Division Four. May 28, 1991. *926 COUNSEL Dewberry & Emmer and Howard A. Emmer for Plaintiff and Appellant. James K. Hahn, City Attorney, John T. Neville, Thomas C. Hokinson and Richa...
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The government appeals the suppression of evidence discovered at a permanent U.S. Border Patrol checkpoint, established to detain motorists briefly for limited immigration-related inquiries. The district court held that a dual-purpose inspection by a U.S. Border Patrol agent, who had previously been cross-designated as an agent of the Drug Enforcement Agency (“DEA”) and U.S. Customs, violated t...
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230 Cal. App. 3d 454 (1991) 281 Cal. Rptr. 631 CHRISTINE STUDLEY, Plaintiff and Appellant, v. BENICIA UNIFIED SCHOOL DISTRICT et al., Defendants; FIRE INSURANCE EXCHANGE, Intervener and Respondent. Docket No. A044561. Court of Appeals of California, First District, Division One. May 28, 1991. *456 COUNSEL Eisenberg & Pollack, Eisenberg, Axelrod & Highlander, Neil D. Eisenberg, Harry Polla...
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Marlene Williams appeals the district court’s denial of her motion for attorney’s fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A). She filed applications for disability insurance benefits and supplemental security income benefits in April 1982, claiming that she had been unable to work since March 18, 1982 due to high blood pressure, heart trouble, poor vision, a...
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230 Cal. App. 3d 990 (1991) 281 Cal. Rptr. 516 GAIL ANTHONY, Plaintiff and Appellant, v. KENNETH W. KIZER, as Director, etc., Defendant and Respondent. Docket No. B050663. Court of Appeals of California, Second District, Division Four. May 29, 1991. *992 COUNSEL Joy Young Stephenson for Plaintiff and Appellant John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Charlton G. Holland, Assi...
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Marlin and Wanda Arford appeal pro se the, district court’s grant of the government’s summary judgment motion in their quiet title action. The Arfords challenged the Air Force’s transfer of Marlin’s retirement pay to the Internal Revenue Service in satisfaction of unpaid tax assessments. The district court concluded that the government had not waived its immunity from suit. We find 2...
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Vincent F. Shutt, a citizen of the state of Washington, brought suit against Sandoz Crop Protection Corporation (Sandoz), a New York corporation, and Zoecon Corporation (Zoecon), a Delaware corporation, alleging that he had been discharged by the defendants in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and the Washington law against discrimination, Wash.Rev...
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934 F.2d 225 John M. JORDAN, Plaintiff-Appellant,v.ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Defendant-Appellee,v.LIGHTNING MOVING & WAREHOUSE CO., an Arizona Corporation,Leaseway Co., Third-party-defendants-Appellees. No. 89-16717. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 6, 1991.Decided May 31, 1991. Richard L. Rosett and Ronald...
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934 F.2d 1077 UNITED STATES of America, Plaintiff-Appellee,v.Russell Leroy EATON, Defendant-Appellant. No. 90-50499. United States Court of Appeals,Ninth Circuit. Submitted May 8, 1991.*Decided May 31, 1991. Brian A. Newman, Newman and Rosenstein, Los Angeles, Cal., for defendant-appellant. Bryan D. Daly, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee....
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Opinion The superior court issued a judgment under the Uniform Parentage Act (Civ. Code, § 7000 et seq.) denying petitioner Mauro B.’s request to declare a parent and child relationship exists between himself and Baby Boy G. (minor), and allowing real parties in interest William and Mary S. to adopt minor without Mauro’s consent. Mauro filed the instant petition seeking to vacate the judgment. Ini...
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230 Cal. App. 3d 1029 (1991) 281 Cal. Rptr. 635 ALLEN S. WARNER et al., Plaintiffs and Appellants, v. FIRE INSURANCE EXCHANGE, Defendant and Respondent. Docket No. G008645. Court of Appeals of California, Fourth District, Division Three. May 29, 1991. *1031 COUNSEL Davis, Samuelson, Blakely & Goldberg and William E. Baker, Jr., for Plaintiffs and Appellants. Waldman, Bass, Stodel & Graham...
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934 F.2d 1425 60 USLW 2015 UNITED STATES of America, Plaintiff-Appellee,v.Guy W. OLANO, Jr., Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Raymond M. GRAY, Defendant-Appellant. Nos. 87-3128, 88-3096 and 88-3295. United States Court of Appeals,Ninth Circuit. Submitted on the Briefs as to No. 87-3128.*Argued and Submitted as to Nos. 88-3096 and 88-3295 March ...
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Opinion Introduction Defendant Gary Jensen appeals from an order granting his motion to set aside a default and default judgment on the condition that he pay plaintiff Kodiak Films, Inc. $4,848.48 and an additional $750 “as sanctions, reasonable conditions and costs.” Statement of Facts On February 19, 1988, plaintiff filed a complaint alleging defendant’s breach of contract, breach of the covenan...
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230 Cal. App. 3d 1000 (1991) 281 Cal. Rptr. 651 WILLIAM HOLCOMB, Plaintiff and Respondent, v. HARTFORD CASUALTY INSURANCE COMPANY, Defendant and Appellant. Docket No. C008346. Court of Appeals of California, Third District. May 29, 1991. *1001 COUNSEL Greve, Clifford, Diepenbrock & Paras, Gerard A. Rose, Suzanne L. Small and Irving H. Perluss for Defendant and Appellant. Dreyer, Babich & ...
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Opinion Petitioners Clyde and Maurine Lacher seek review of an order sustaining a demurrer, without leave to amend, to causes of action for fraud and negligent misrepresentation in an action arising out of a residential development being built near their home. They allege the developer fraudulently induced their support and acquiescence to obtain the required governmental approval for the project...
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Opinion Raymond G. was born on January 13, 1990. He weighed nine pounds at birth. He was the fifth child of Darlene G. and David G. (hereafter mother and father, respectively). Raymond’s weight was monitored by medical personnel after his checkup at age two and one-half months showed a weight gain from birth of only about one pound. His weight failed to progress and by April 19, 1990, one month l...
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Opinion —In this case we consider the issue “whether a defendant in a products liability action based upon an alleged failure to warn of a risk of harm may present evidence of the state of the art, i.e., evidence that the particular risk was neither known nor knowable by the application of scientific knowledge available at the time of manufacture and/or distribution.” (Order on grant of review, M...
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Opinion Insurance Code section 11580.2 requires all insurance policies on motor vehicles principally used in California to include uninsured motorist coverage. (All statutory references are to section 11580.2 of the Insurance Code unless otherwise indicated.) The definition of an “uninsured motor vehicle” for purposes of this provision includes a vehicle for which liability insurance has been obt...
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Opinion Petitioner Oscar Lee Cowan seeks extraordinary relief from orders of a judge of respondent Municipal Court of the County of Los Angeles finding him in contempt of court and sentencing him to 72 hours in the county jail. After review, we conclude that the court did not comply with the statutorily prescribed procedure mandated by Code of Civil *1283Procedure section 1211. The order of contem...
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The National Labor Relations Board (“NLRB”) petitions us to enforce a cease- and-desist order against C.E. Wylie Construction Company (“Wylie”). Wylie contends the NLRB’s order is overly broad in three respects. We conclude Wylie’s first two claims of over-breadth require a remand for further findings. Wylie’s third argument is meritless. FACTS AND PROCEEDINGS BELOW Wylie is a general...
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Tommy Hart appeals the denial of his petition for a writ of habeas corpus. He raises three claims relating to two trials arising out of a single 28-count information: (1) the district court should have reviewed the entire state court record in conducting harmless error analysis of a jury instruction; (2) the instructional error was not harmless; and (3) his Sixth Amendment right to a fair trial w...
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934 F.2d 1080 UNITED STATES of America, Plaintiff-Appellee,v.Solomon Goddy LATO, Defendant-Appellant. No. 90-10407. United States Court of Appeals,Ninth Circuit. Submitted May 13, 1991*.Decided June 3, 1991. Christopher A. Brancart, Brancart & Brancart, Pescadero, Cal., for defendant-appellant. Rory K. Little, Eric R. Havian, Asst. U.S. Atty., San Francisco, Cal., ...
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935 F.2d 990 33 Fed. R. Evid. Serv. 32 UNITED STATES of America, Plaintiff-Appellee,v.CHU KONG YIN, aka Alfred Chu, Defendant-Appellant. No. 89-10408. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 14, 1990.Decided June 3, 1991. Spencer W. Strellis, and William P. Cole, Krech & Cole, Oakland, Cal., for defendant-appellant. Diane B. ...
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Clyde Hall appeals the district court’s dismissal of his petition for a writ of habe-as corpus. He contends that the district court erred in rejecting his claims of prose-cutorial misconduct and ineffective assistance of counsel. *165 A. Failure to Provide Transcripts on Appeal Because we review the district court’s decision de novo, Allen v. Risley, 817 F.2d 68, 69 (9th Cir.1987), we mus...
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Terrance Frank appeals from the judgment of conviction entered following trial by jury, on two counts of second degree murder in violation of 18 U.S.C. § 1111 and § 1153, two counts of assault with intent to commit murder in violation of 18 U.S.C. § 113(a) and § 1153, and four counts of use of a firearm in commission of a crime of violence in violation of 18 U.S.C. § 924(c) and § 1153. Frank wa...
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Sup. Ct. Ga. Certiorari denied....
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500 U.S. 961 111 S.Ct. 2277 114 L.Ed.2d 728 Donald H. GASKINS, petitioner,v.Kenneth D. McKELLAR, Warden, South Carolina Department of Corrections, et al No. 90-7469 Supreme Court of the United States June 3, 1991 Rehearing Denied Aug. 2, 1991. See U.S., 112 S.ct. 14. On petition for writ of certiorari to the United States Court of Appeals for the Fourt...
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delivered the opinion of the Court. This case raises the question whether admiralty jurisdiction extends to claims arising from agency contracts. In Minturn v. Maynard, 17 How. 477 (1855), this Court held that an agent who had advanced funds for repairs and supplies necessary for a vessel could not bring a claim in admi *605 ralty against the vessel’s own...
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*1195 Opinion Facts On July 26, 1990, a criminal complaint was filed in the Kern County Municipal Court charging petitioner in count I with arson (Pen. Code, § 451, subd. (b)) 1 and in count II with burglary (§ 460.1). Both counts were accompanied by several special allegations. Petitioner’s preliminary hearing was held on September 20, 1990. At the preliminary hearing Mr. Griggs, an inve...
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*1268 Opinion Introduction Defendant James William Tatlis appeals from the judgment entered after he was resentenced to state prison for the term prescribed by law. In addition, defendant petitions for a writ of habeas corpus on the ground he was denied due process of law at his resentencing hearing. Procedural Background Defendant pleaded guilty to being a felon in possession of a fire...
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OPINION The debtors Robert and Rosemary Jensen (“Jensens”) appeal the bankruptcy court’s grant of summary judgment in favor of the State of California Department of Health Services (“DHS”), the California counterpart to the federal Environmental Protection Agency, upon the parties’ cross-motions for summary judgment. We reverse. INTRODUCTION AND FACTS The Jensens individually wh...
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Opinion In this case we hold that a juvenile dependency order denying reunification services based on the father’s status as a pedophile was *1255unsupported by the statutorily required testimony of two experts, since one of the testifying psychologists was unlicensed. In 1983, Paul S. was convicted of molesting children between the ages of five and seven over a period of about three years. The v...
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Opinion Defendant Western Title Insurance Company (Western) appeals the judgment in plaintiffs’ favor entered on a jury verdict. Western assigns multiple errors. Western contends that all of plaintiffs’ causes of action are barred by the applicable statutes of limitations. (Code Civ. *1226 Proc., 1 §§ 337, Former 338, subds. 1 & 7, 339, subd. 1, 343.) Western conte...
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James Port Parker appeals pro se the district court’s dismissal of his action for damages pursuant to the Federal Tort Claims Act as time-barred under 28 U.S.C. § 2401(b). We reverse. FACTS On February 19, 1985, Parker timely filed a form 95 with the United States Department of Agriculture, alleging negli *177 gence by the Department and its employees. No final agency denial of the claim wa...
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Oscar Meza-Soria (Meza-Soria) was indicted for violating 8 U.S.C. § 1326 by being an alien who reentered the country after having been deported. His first trial ended in a mistrial, which was granted over his opposition. When the government sought to retry him, he moved to dismiss on double jeopardy grounds. He asserted that the grant of the mistrial was based on the district court’s erroneous ...
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Plaintiff Lena Schnuck brought this action attacking the Santa Monica, California, Rent Control Law on several constitutional grounds. The district court entered summary judgment against her, and she appeals. We affirm. FACTS In 1979, Santa Monica voters adopted by initiative an amendment to the City Charter imposing a comprehensive rent control system within the City. Santa Monica City Chart...
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230 Cal. App. 3d 1391 (1991) 281 Cal. Rptr. 545 JOHN BARRY JACKSON, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. B056356. Court of Appeals of California, Second District, Division Three. May 13, 1991. *1392 COUNSEL Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Norman Kava and John Hamilton Scott, Deputy Public D...
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Opinion Introduction Appellant was convicted by jury of violation of Health and Safety Code section 11359, possession of marijuana for sale. In a nonjury trial three *1304 alleged prior terms of imprisonment were found to be true. He was sentenced to prison for five years. Appellant makes two contentions on appeal: The lower court erred by (1) denying his motion to ...
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Opinion Appellant San Jose Teachers Association, CTA, NBA, appeals from a judgment declaring invalid the annual search requirement of section 5592, title 5, of the California Code of Regulations (hereafter Regulation 5592). We affirm. Factual Background Respondent San Jose Unified School District (hereafter, District) maintains an active interscholastic athletic program in its s...
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230 Cal. App. 3d 1337 (1991) 281 Cal. Rptr. 733 THE PEOPLE, Plaintiff and Respondent, v. GRETTA JACOBS, Defendant and Appellant. In re GRETTA JACOBS on Habeas Corpus. Docket Nos. F013115, F014531. Court of Appeals of California, Fifth District. May 31, 1991. *1339 COUNSEL Carole Greeley, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp and Daniel E. Lunge...
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Opinion The Facts and Proceedings In December 1984, the Department of Real Estate (DRE) issued a “Planned Development Final Subdivision Public Report” (public report) for the Millerton Lake Mobile Home Village (development) for the purpose of informing potential purchasers about the respective rights and responsibilities of the subdivision developer (developer) and lot owners. The pu...
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*1420Opinion A jury convicted appellant of first degree murder (Pen. Code,1 § 187) and robbery (§211). It also found true a robbery special circumstance (§ 190.2, subd. (a)(17)) and two firearm use allegations (§ 12022.5). We find that: appellant’s confessions were properly admitted; no prejudicial error occurred at trial in using restraints on appellant; there was no need to hold a competency he...
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230 Cal.App.3d 1310 (1991) 281 Cal. Rptr. 702 THE PEOPLE, Plaintiff and Respondent, v. KENT SANDLIN et al., Defendants and Appellants. Docket No. G009302. Court of Appeals of California, Fourth District, Division Three. May 31, 1991. *1313 COUNSEL Barry T. Simons, Tedd A. Mehr and Gordon S. Brownell, under appointments by the Court of Appeal, for Defendants and Appellants. John K. Van de Kamp and...
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Opinion Jaime Garcia Villaneuva (defendant) has appealed a judgment of conviction entered following his plea of guilty to one count of sale of a controlled substance (cocaine) in violation of Health and Safety Code section 11352. The trial court denied probation and sentenced defendant to a three-year term. Defendant received credit for 91 days. Defendant has appealed his sentence, contending t...
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230 Cal. App. 3d 1396 (1991) 282 Cal. Rptr. 62 THE PEOPLE, Plaintiff and Respondent, v. MICHAEL J. LANHAM, Defendant and Appellant. Docket No. E007427. Court of Appeals of California, Fourth District, Division Two. June 3, 1991. *1397 COUNSEL Valerie K. Cadigan, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief...
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Opinion We declare the unconstitutionality of the voter approval requirement for local general tax enactments adopted by the electorate as part of a statewide statutory initiative (Proposition 62) in the November 1986 General Election and codified as Government Code 1 sections 53723 and 53724. We further decide that the enforcement provisions codified in section 53728, reducing a local govern...
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230 Cal. App. 3d 1125 (1991) 281 Cal. Rptr. 827 CATHERINE HOLTHOUSE MANGINI et al., Plaintiffs and Appellants, v. AEROJET-GENERAL CORPORATION et al., Defendants and Respondents. Docket No. C004771. Court of Appeals of California, Third District. May 30, 1991. *1130 COUNSEL McCutchen, Doyle, Brown & Enersen, Christopher Berka, Edward L. Strohbehn, Jr., and Jennifer S. Rosenberg for Plaintiffs ...
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ORDER FOR ENTRY OF JUDGMENT On March 15, 1990 this Court entered its Order Regarding Cross-Motions for Preliminary Injunction and for Summary Judgment, (the “March 15 Order”), which addressed the Department of the Navy’s Drug-Free Workplace Program drug testing plan for civilian employees. Among other things, in the March 15 Order found “that automatic [random] testing designation for holders of t...
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230 Cal. App. 3d 1385 (1991) 282 Cal. Rptr. 18 CHRISTINA JURS PAPADAKIS et al., Plaintiffs and Respondents, v. BRUCE P. ZELIS, Defendant and Appellant. Docket No. A049637. Court of Appeals of California, First District, Division Two. May 22, 1991. *1386 COUNSEL Bruce P. Zelis, in pro. per., for Defendant and Appellant. Michael F. Ram for Plaintiffs and Respondents. OPINION KLINE, P.J. Appellant B...
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Michael Barnett and James Craigo appeal the denial of their motion to suppress evidence obtained as a result of a search at an immigration checkpoint, resulting in the seizure of illegal drugs and a firearm. We affirm. PACTS Barnett and Craigo were travelling North on Interstate Highway 15 in a GMC Blazer when they were stopped at the permanent immigration checkpoint in Temecu-la, California....
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Sammy Terrell, a federal prisoner proceeding pro se and in forma pauperis, appeals from a November 30, 1989 summary judgment order dismissing his action with prejudice. Terrell alleges that the district court erred by (1) denying Terrell’s request for appointment of counsel; (2) denying his Rule 56(f) motion to stay summary judgment pending further discovery; (3) granting ...
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936 F.2d 393 Larry RISK, individually and as Guardian Ad Litem for KarimaRisk and Jamil Risk, Plaintiff-Appellant,v.K.I. HALVORSEN; Olaf Solli, Defendants-Appellees.Larry RISK, individually and as Guardian Ad Litem for KarimaRisk and Jamil Risk, Plaintiff-Appellant,v.KINGDOM OF NORWAY, Defendant-Appellee. Nos. 88-15803, 89-15701. United States Court of Appeals,Ninth Circuit. Argue...
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935 F.2d 1019 PACIFIC REINSURANCE MANAGEMENT CORP.; Mission InsuranceCompany, Plaintiffs-Appellees,v.OHIO REINSURANCE CORP.; Walton Insurance Ltd.;Abeille-Paix Reassurances; Hamburg InternationalReinsurance Company; Hassneh Insurance Company of IsraelLtd.; Seguros America S.A., Defendants-Appellants. Nos. 88-6242, 88-6560 and 89-55550. United States Court of Appeals,Ninth Circuit....
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Opinion Scot Albert Campbell and Paul George Werner separately appeal their jury convictions and sentences for various robberies (Pen. Code, 2 § 211) and false imprisonments (§§ 236, 237) arising out of their “money-taking” spree of two fast food restaurants, one in San Diego County and one in Riverside County, on March 12, 1989. They also challenge their convictions and sentences for being i...
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230 Cal. App. 3d 1372 (1991) 282 Cal. Rptr. 10 THE PEOPLE, Plaintiff and Respondent, v. BRANDON STRAIGHT, Defendant and Appellant. Docket No. H007214. Court of Appeals of California, Sixth District. May 7, 1991. *1373 COUNSEL Catherine C. Czar for Defendant and Appellant. Daniel E. Lungren, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, John Sugiyama, Assistant Attorney ...
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230 Cal. App. 3d 1455 (1991) 282 Cal. Rptr. 75 In re JOSE T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JOSE T., Defendant and Appellant. Docket No. B048457. Court of Appeals of California, Second District, Division Five. June 5, 1991. *1458 COUNSEL Jill Switzer, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, ...
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ORDER This matter is before the court on various motions. For the reasons I explain below, (1) all motions for summary judgment are denied; 1 (2) defendant North Valley Bank’s (“NVB”) motion to strike plaintiff’s jury demand is granted; (3) plaintiff’s motion to withdraw admissions is granted and sanctions are imposed; (4) defendant NVB’s motion for sanctions is denied, and def...
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ORDER The memorandum disposition filed on May 15, 1991 is hereby designated a per curiam opinion. OPINION Arturo Ramos-Quirarte appeals from his conviction for unlawful re-entry into the United States after deportation in violation of 8 U.S.C. § 1326. He contends that (a) his possession of an Employment Authorization Card rendered him immune from prosecution for this offense during the effective d...
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935 F.2d 1033 UNITED STATES of America, Plaintiff-Appellee,v.German Valentin RUIZ, Defendant-Appellant. No. 90-50165. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 8, 1991.Decided June 6, 1991. Joseph T. Vodnoy, Los Angeles, Cal., for defendant-appellant. Edward R. McGah, Jr., Asst. U.S. Atty., Santa Ana, Cal., for plaintiff-appellee. ...
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934 F.2d 1084 137 L.R.R.M. (BNA) 2604, 60 USLW 2007,119 Lab.Cas. P 10,774 NVE CONSTRUCTORS, INC., Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent,andLaborers' International Union of North America, Local No.1184, Intervenor. No. 89-70477. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 8, 1991.Decided June 6, 1991. John W. Prager, Jr.,...
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We must decide whether the sentencing provision of the statute criminalizing forged endorsements of United States Treasury checks, 18 U.S.C. § 510, is sufficiently ambiguous to warrant application of the rule of lenity. I Tami LeCoe is the second wife of Joseph E. LeCoe, a naval recruiter in Boise, Idaho. She married Joseph on April 1, 1983, two months after his divorce from his first wife, Pamela...
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230 Cal. App. 3d 1525 (1991) 282 Cal. Rptr. 80 CAMSI IV, Plaintiff and Appellant, v. HUNTER TECHNOLOGY CORPORATION, Defendant and Respondent. Docket No. H006806. Court of Appeals of California, Sixth District. June 5, 1991. *1529 COUNSEL Berliner, Cohen & Biagini, Ralph J. Swanson, Russell J. Hanlon and Stacy L. Saetta for Plaintiff and Appellant. Nossaman, Guthner, Knox & Elliott, Kurt W...
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Josefina Cabrales won her civil rights lawsuit; she has a $150,000 jury award to prove it. En route to her ultimate victory, however, Cabrales suffered a temporary setback when the Supreme Court granted certiorari, vacated her judgment and remanded for reconsideration in light of a recent case. We consider whether she is entitled to attorney’s fees for her unsuccessful opposition to that certiora...
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935 F.2d 1043 Segundo A. UNPINGCO; Pacific Equity and CapitalEnterprises, Inc., Plaintiffs-Appellants,v.HONG KONG MACAU CORP.; Northern Development Corp.; BabaCorp.; Jesus U. Torres; Paul Bordallo,Defendants-Appellees. No. 90-15725. United States Court of Appeals,Ninth Circuit. Submitted May 8, 1991.*Decided June 7, 1991. S. "Cy" Unpingco, Pacific Lawyers Group, San...
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Cosme Torres-Medina appeals his conviction for use of a firearm in relation to the commission of a narcotics offense. See 18 U.S.C. § 924(e)(1) (1988). He asserts the evidence was insufficient to convict him because he is handicapped and could not access the tunnel below his house where the police found the firearm and drugs. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. ...
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230 Cal. App. 3d 1564 (1991) 282 Cal. Rptr. 90 THE PEOPLE, Plaintiff and Respondent, v. JULIO ALBERTO VERGARA et al., Defendants and Respondents. Docket No. B046052. Court of Appeals of California, Second District, Division Two. June 6, 1991. *1566 COUNSEL Ira Reiner, District Attorney, George M. Palmer and George G. Size, Deputy District Attorneys, for Plaintiff and Appellant. John Yzurdiaga for...
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230 Cal. App. 3d 1592 (1991) 281 Cal. Rptr. 900 THE PEOPLE, Plaintiff and Appellant, v. THE SUPERIOR COURT OF KINGS COUNTY, Respondent; EUGENE HAMILTON, Real Party in Interest and Respondent. Docket No. F014127. Court of Appeals of California, Fifth District. June 6, 1991. *1593 COUNSEL John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Richard B. Iglehart, Chief Assistant Attorney Gen...
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delivered the opinion of the Court. The question presented is whether claimants under the Age Discrimination in Employment Act of 1967 (Age Act or Act), 81 Stat. 602, as amended, 29 U. S. C. § 621 et seq., are collaterally estopped to relitigate in federal court the judicially unreviewed findings of a state administrative agency made with respect to an age-discrimination claim. ...
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Opinion This is an action for wrongful termination of employment brought by plaintiff Steven E. Harden against defendants Maybelline Sales Corporation and Maybelline U.S.A. (hereafter Maybelline or defendants). The trial court granted defendants’ motion for summary judgment and entered judgment in defendants’ favor. We reverse the judgment on the ground that at-will language contained in a standar...
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Opinion —In this proceeding we consider the recommendation of the Review Department of the State Bar Court (review department) that petitioner Samuel Lipson be suspended from the practice of law for five years, that execution of his suspension be stayed, and that he be placed on probation for five years upon certain conditions including actual suspension from the practice of law for two years and ...
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Opinion Los Gatos Lodge, Inc. (the Lodge) appeals from a judgment entered on a jury verdict of $150,000 in favor of Carolyn Wanland in her action for constructive wrongful termination. The Lodge contends plaintiff’s action is preempted by federal labor law and asserts error in several of the trial court’s evidentiary rulings and in the giving of a punitive damage instruction to the jury. Plaint...
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934 F.2d 1091 Eulala SHUTE, and Russel Shute, Plaintiffs-Appellants,v.CARNIVAL CRUISE LINES, Defendant-Appellee. No. 87-4063. United States Court of Appeals,Ninth Circuit. June 10, 1991. Gregory J. Wall, Brousseau, Wall & Jankovich, Seattle, Wash., for plaintiffs-appellants. Jonathan Rodriguez-Atkatz, Bogle & Gates, Seattle, Wash., for defendant-appellee. ...
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Robert Steven Lujan (Lujan) appeals his conviction on three drug trafficking counts, in violation of 21 U.S.C. §§ 841(a)(1), 846 (1988). We affirm. I. Motion to Suppress Wiretap Evidence: Probable Cause Lujan challenges the district court’s denial of the motions to suppress wiretap evidence, contending there was no probable cause to issue a wiretap extension order, as required...
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935 F.2d 1059 UNITED STATES of America, Plaintiff,andQuinault Indian Nation; Nooksack Indian Tribe; LummiIndian Tribe; Payallup Indian Tribe, et al.,Plaintiffs-Intervenors-Appellants,v.STATE OF WASHINGTON, Defendant-Appellee. No. 90-35355. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 5, 1991.Decided June 10, 1991. Phillip E. Katzen, Evergree...
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934 F.2d 1440 UNITED STATES of America, Plaintiff-Appellee,v.Hector Francisco MOLINA, Defendant-Appellant. No. 90-50129. United States Court of Appeals,Ninth Circuit. Argued and Submitted Jan. 10, 1991.Decided June 10, 1991. Michael D. Nasatir, Nasatir & Hirsch, Santa Monica, Cal., for defendant-appellant. Charles L. Kreindler, Asst. U.S. Atty., Los Angeles, Ca...
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230 Cal. App. 3d 1570 (1991) 281 Cal. Rptr. 904 JAY SCOTT PINNEY, Plaintiff and Respondent, v. DAVID R. PHILLIPS, as Registrar, etc., Defendant and Appellant. Docket No. C007052. Court of Appeals of California, Third District. June 6, 1991. *1574 COUNSEL John K. Van de Kamp, Attorney General, Joel S. Primes and Constance M. Barton, Deputy Attorneys General, for Defendant and Appellant. Livingston...
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Opinion I. Introduction Plaintiff Douglas Ladd (plaintiff) appeals from an order of dismissal for failure to serve process within two years. (Code Civ. Proc., § 583.420, subd. (a)(1).) 1 The court initially granted the discretionary dismissal motion. Plaintiff filed a reconsideration motion. (§ 1008, subd. (a).) The court granted the reconsideration request and, upon recon...
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230 Cal. App. 3d 1072 (1991) 284 Cal. Rptr. 757 THE PEOPLE, Plaintiff and Respondent, v. RUBEN JAMES COTTON, Defendant and Appellant. In re RUBEN JAMES COTTON on Habeas Corpus. Docket Nos. A050688, A052267. Court of Appeals of California, First District, Division Five. May 30, 1991. *1076 COUNSEL Edwin J. Wilson, Jr., and John P. Mortimer for Defendant and Appellant. *1077 Daniel E. Lungren, Atto...
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Opinion In this case we hold that where a judicial arbitrator awarded a specific amount of attorney fees but unspecified costs, a judgment on the award was appealable as to the costs but not as to the attorney fees, which could be challenged only by request for trial de novo. Linda K. Dickens and Stanley A. Davis sued their landlords, Ming and Melanie Lee, alleging 15 causes of action. The ca...
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Opinion While driving under the influence of PCP (phencyclidine), appellant Terrance Rene David collided with another vehicle, killing its two occupants. By nonjury trial appellant was convicted of two counts of second degree murder (Pen. Code, §§ 187, 189; People v. Watson (1981) 30 Cal.3d 290 [179 Cal.Rptr. 43, 637 P.2d 279]) and was sentenced to concurrent terms of 15 years to life in st...
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*1029 Opinion —In this matter we review the recommendation of the State Bar Review Department (review department) that petitioner Terrance R. McKnight be suspended from the practice of law for five years, that the order of suspension be stayed, and that he be placed on probation for seven years on various conditions including an actual suspension of one year, restitution, and a limitation on ...
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Opinion Statement of the Case Defendant was charged with possession of cocaine for sale (Health & Saf. Code, § 11351) in three separate informations based on three searches of his house. These searches occurred on February 5, 1988 (case No. 8052), May 11, 1988 (case No. 8100), and February 21, 1989 (case No. 8532). Two of the informations, Nos. 8052 and 8532, also charged defendant with committin...
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765 F. Supp. 628 (1991) REPUBLIC WESTERN INSURANCE COMPANY, an Arizona Corporation dba Oxford Property and Casualty Insurance Company, Plaintiff, v. INTERNATIONAL INSURANCE COMPANY, et al., Defendants. No. C 91-20138 JW. United States District Court, N.D. California. May 29, 1991. John N. Frye, Sam Zaif, Laura Jackson, Kornblum, Ferry & Frye, San Francisco, Cal., for First State Ins. Co. Rand...
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230 Cal. App. 3d 1599 (1991) 282 Cal. Rptr. 144 THUEL V. SCHUHART, Plaintiff and Respondent, v. JOSE C. PINGUELO et al., Defendants and Appellants. Docket No. A046211. Court of Appeals of California, First District, Division One. June 7, 1991. *1601 COUNSEL Meyers, Nave, Riback & West, Steven R. Meyers, Elizabeth H. Silver and Andrea J. Saltzman for Defendants and Appellants. Sturgis, Ness, B...
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Opinion In this case we hold that the right to be free from double jeopardy is not violated when the Department of Motor Vehicles (DMV) suspends a driver’s license for refusal to take a blood-alcohol test, even though the licensee was convicted of driving under the influence and received a 48-hour “refusal enhancement” for the same conduct. John Norman Ellis appeals from a judgment denyin...
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Opinion Joan A. filed a petition in the superior court seeking a determination of whether the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; hereinafter ICWA or the Act)1 applied to a prospective independent adoption of Baby Girl A. (minor), her natural child, and asking the court to *1614accept her consent to the proposed adoption. The Native Village of Akhiok, sought to intervene in the pr...
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934 F.2d 1092 56 Fair Empl.Prac.Cas. 262,56 Empl. Prac. Dec. P 40,881, 19 Fed.R.Serv.3d 1524 OFFICERS FOR JUSTICE, et al., Plaintiff,v.CIVIL SERVICE COMMISSION OF THE CITY AND COUNTY OF SANFRANCISCO, Defendant-Appellee.Louis Calabro, Applicant in intervention-Appellant.UNITED STATES of America; Officers for Justice, et al.,Plaintiffs-Appellees,San Francisco Police Officers' Association,D...
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Appellant Diane Williams (“Williams”) appeals the Tax Court’s dismissal of her petition for redetermination of a deficiency in income tax. The dismissal was based upon a finding by the Tax Court that the petition was untimely and, therefore, the Tax Court had no jurisdiction. We have jurisdiction pursuant to 26 U.S.C. § 7482. There is no question but that the petition was not filed within the p...
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934 F.2d 1096 119 Lab.Cas. P 10,782, 6 Indiv.Empl.Rts.Cas. 833,1991 O.S.H.D. (CCH) P 29,383 RAILWAY LABOR EXECUTIVES' ASSOC.; Brotherhood ofLocomotive, et al., Plaintiffs-Appellants,v.Samuel K. SKINNER; John H. Riley, et al., Defendants-Appellees. No. 89-16571. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 20, 1990.Submission Deferred May 1, 1990....
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Defendants Shaw and Wilson were convicted for distributing a controlled substance in violation of 21 U.S.C. § 841(a)(1). The district court sentenced them as though they had distributed “cocaine” as opposed to “cocaine base” because it held that “cocaine base” only refers to cocaine compounds containing a hydroxylion and the government had failed to show that the rock cocaine involved in this cas...
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Orville R. Goodwin appeals the district court’s summary judgment order which upheld the government's seizure and sale of his property for delinquent payroll taxes. Goodwin contends that the seizure and sale should be set aside because the government did not literally comply with the notice requirements of 26 U.S.C. § 6335. He also contends that the district court erred by ruling that the statut...
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Opinion Charged by information with unlawfully possessing cocaine (Health & Saf. Code, § 11350, subd. (a)) and a syringe (Bus. & Prof. Code, § 4149) and with resisting arrest (Pen. Code, § 148), defendant C. Autrey Johnson pled not guilty and moved in superior court to suppress evidence (id., § 1538.5). When the court denied the motion, he entered a negotiated plea of guilty to...
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Opinion This appeal presents a single legal issue of whether a creditor may recover prejudgment interest on interest-only installment payments due on a standard note. The trial court determined such interest was not recoverable. We shall affirm. Because of the single issue in this appeal, an exhaustive recitation of the factual and procedural history is unnecessary. The record discloses that in a...
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MEMORANDUM DECISION: DENYING DEFENDANT’S MOTION TO DISMISS; GRANTING DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS; AND DENYING PLAINTIFF’S MOTION TO AMEND THE JUDGMENT INTRODUCTION Plaintiff has brought suit against the United States to enjoin the Internal Revenue Service from assessing a tax deficiency against him. He claims that the intended assessment is barred by the statute ...
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Karsten Manufacturing Corporation and eight professional golf players challenge the implementation of a new rule by the PGA Tour (PGA) banning clubs with U-shaped grooves. Karsten and the professional player plaintiffs challenge the actions of the PGA on antitrust and state law grounds. After a three day hearing, the district court granted a preliminary injunction enjoining the PGA from impleme...
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934 F.2d 1100 13 Employee Benefits Ca 2634 Harriette TURNBOW, Plaintiff-counter-defendant-Appellee,v.PACIFIC MUTUAL LIFE INSURANCE CO., BeneficialAdministration Co., Inc., Donald Lawrenz,Beneficial Employees Security Trust,Defendants-counter-claimants-Appellants. No. 90-16653. United States Court of Appeals,Ninth Circuit. Argued April 12, 1991.Submission Deferred April 16, 19...
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935 F.2d 1544 CONTAINER STEVEDORING COMPANY, Petitioner,v.DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS; AlbertGross, Respondents. No. 90-70311. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 7, 1991.Decided June 12, 1991. Robert H. Madden and Steven T. Russell, Madden & Crockett, Seattle, Wash., for petitioner. Carol B. Feinberg, ...
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*59 Opinion Here we hold that the term “point of operation guard” as used in Labor Code 1 section 4558 includes any apparatus or device that keeps a worker’s hands outside the point of operation while operating a power press. CTS Corporation (CTS) appeals from the judgment entered after a jury rendered a special verdict in favor of respondent, William J. Bingham (...
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*153Opinion Everett W. Morris appeals a judgment denying his petition for a writ of mandate seeking an order commanding the state Department of Motor Vehicles (DMV) to annul its order made pursuant to Vehicle Code sections 13352, subdivision (a)(5), and 231701 revoking Morris’s driver’s license for three years for having had his third drunk driving conviction within seven years. Morris’s writ peti...
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Opinion Defendant David Livingston Weathington appeals from conviction at jury trial of one count each of felony driving under the influence of alcohol with three or more priors for which he received a prison sentence, and misdemeanor driving on a suspended license. He claims that the court erred in instructing the jury and in refusing to bifurcate the trial of the priors. We agree with the lat...
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Following his conviction and sentencing for assaulting a federal officer and related charges, John Henry Young filed, pro se, a motion to correct an illegal sentence. The district court denied the motion, as well as Young’s subsequent motion to reconsider. We affirm. I On March 23, 1988, Young and his cousin, James Snell, were shooting gophers on the Fort Belknap Indian Reservation in Monta...
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Following a jury trial, George Mosti was convicted of importing a controlled substance, Lysergic Acid Diethylamide (LSD), in violation of 21 U.S.C. § 952 and possession of LSD with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The district court sentenced Mosti under the Sen *426 tencing Guidelines to thirty months incarceration and three years supervised release. In imposing thi...
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The State of Nevada assessed a tax against Amarok Corporation (Amarok) for construction work performed on lands held in trust by the United States for the Te-Moak Bands of Indians. Without pursuing its administrative or judicial remedies under Nevada law, Amarok filed a claim in the district court contending that federal law prohibits Nevada from taxing Ama-rok’s activities on Te-Moak trust lan...
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Roy and Dixie Lee Powell appeal their jury convictions for the willful failure to file income tax returns in violation of 26 U.S.C. § 7203. The dispositive issues are whether the district court erred in its jury instructions and in limiting evidence that the Powells could present. 1 More specifically, we address whether the district court erred in (1) its instruction on willfulness, (2) refusin...
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936 F.2d 426 Corazon D. HERNANDEZ; Jesus M. Quiblat; and Luzviminda M.Macalinao, Plaintiffs-Appellants,v.James A. BAKER, III, as Secretary of State; Harry L.Coburn, as Deputy Secretary of State for PassportServices, Defendants-Appellees. No. 90-16401. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 10, 1991.Decided June 13, 1991. Reynaldo O. Yan...
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934 F.2d 1104 56 Fair Empl.Prac.Cas. 250,56 Empl. Prac. Dec. P 40,844, 67 Ed. Law Rep. 1109 Edyna Marie SISCHO-NOWNEJAD, Plaintiff-Appellant,v.MERCED COMMUNITY COLLEGE DISTRICT; Board of Trustees ofMerced Community College District; Bruce Pressly; MargaretRandolph; Richard Rodini; Robert Ohki; Richard Parker;Dr. E.W. Bizzini; James Edmonson; Walter Crawford;Anthony Rose; William ...
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*102 Opinion Petitioners successfully assert that respondent court abused its discretion as a matter of law when it denied their request for a jury trial. Real party filed a lawsuit against petitioners for injuries which she claimed to have suffered in an automobile collision. On January 19, 1990, petitioners timely answered the complaint and served a demand for jury trial. The case was o...
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231 Cal.App.3d 552 (1991) 282 Cal. Rptr. 181 DuBARRY INTERNATIONAL, INC., Plaintiff and Respondent, v. SOUTHWEST FOREST INDUSTRIES, INC., Defendant and Appellant. Docket No. B045330. Court of Appeals of California, Second District, Division Three. June 12, 1991. *555 COUNSEL Sidley & Austin, William F. Conlon, Cynthia A. Gray and William C. Ryan for Defendant and Appellant. Daniels, Baratta &...
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Opinion Plaintiff, Sherman Johnson, appeals from a summary judgment in favor of defendants, James J. Simonelli and Simonelli, Simonelli & Carash, a professional law corporation, after the trial court determined that plaintiff’s action for attorney malpractice was barred by the statute of limitations. 1 We shall affirm. Facts Plaintiff retained defendants on June 1, 19...
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936 F.2d 428 34 Soc.Sec.Rep.Ser. 6, Unempl.Ins.Rep. CCH 16139AJoan PETRONE, Plaintiff-Appellant,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee. No. 89-55732. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 4, 1990.Decided June 14, 1991. John Ohanian, Los Angeles, Cal., for plaintiff-appellant. Jerry J. Bassett, Asst. Regional ...
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Opinion Introduction Defendant Beverly California Corporation (hereafter Beverly), operator of a licensed skilled nursing facility, appeals from a judgment entered upon a jury verdict in this medical malpractice wrongful death action. Beverly contends the trial court committed prejudicial error in excluding evidence pertaining to the allocation of negligence between Beverly and the d...
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Opinion This case concerns the constitutionality of Business and Professions Code section 820, 1 dealing with possible mental incompetency of a licensed dentist. Statement of Facts and Procedure Appellant Alexander D., a practicing dentist licensed by the State of California, appeals from an order of the superior court denying his motion for preliminary injunction to ...
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Opinion James A. Hibbard appeals a judgment imposing a consecutive sentence after his conviction for violating Penal Code 2 section 4532, subdivision (a) (nonviolent escape from honor camp while confined for a misde *147 meanor). By this appeal and in a companion writ petition, 3 he challenges the imposition of a 10-year term composed of consecutive sent...
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Opinion Cynthia Aragon-Haas sued her former employer, Family Security Insurance Services, Inc., for damages for wrongful discharge. Plaintiff appeals from judgment of dismissal entered after the trial court sustained defendant’s demurrer to four causes of action of the first amended complaint without leave to amend and plaintiff voluntarily dismissed the remaining causes of action. F...
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Opinion Introduction Julie Ann Henson was a passenger in an open convertible stopped for a moving violation on August 2, 1989. Certain plain-view observations by the detaining officers eventually led to the discovery of methamphetamine and marijuana in Henson’s purse. She was charged by information with (count I) a felony violation of Health and Safety Code section 11378 (possession ...
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Opinion Henry Scheidt was convicted by a jury of possession of a sawed-off shotgun (Pen. Code, § 12020, subd. (a)) 1 and possession of a concealable firearm (“a shotgun”) by a felon (§ 12021.1). During trial he admitted having served a prior prison term within the meaning of section 667.5, subdivision (b). At sentencing, the court imposed a prison term and sentenced appellant t...
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*248 Opinion Introduction The Hollywood Redevelopment Project (the Project) was adopted by the Los Angeles City Council on May 7, 1986, and signed by the mayor on May 9,1986. It establishes a project area of approximately 1,100 acres in that part of the city known as Hollywood. The primary goals of the Project are the elimination of blight and revitalization of the area. The...
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Opinion A jury awarded plaintiff Peter Opsal substantial contract and tort damages based on his argument that defendant United Services Automobile Association (USAA) improperly denied a claim for reimbursement under Opsal’s homeowners insurance policy. While we agree with Opsal that he was entitled to coverage under the policy, we conclude the evidence was insufficient to meet the higher ...
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Opinion The central issue in this case is whether the civil service commission abused its discretion in upholding the discharge of a deputy sheriff who committed batteries on two prisoners, uttered threats and racial slurs against a co-employee and lied about these actions to his superiors. After hacking our way through a thicket of procedural issues, we conclude the commission acted well...
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Appellant appeals the calculation of his sentence under the guidelines. He argues that the district court erred in denying him a two-point reduction for acceptance of responsibility and in enhancing his offense level by two points for obstruction of justice. I The district court denied the reduction for acceptance of responsibility because it found that appellant had perjured himself during t...
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Angela Schlacter-Jones was terminated by GTE California, Inc. because she tested positive for drugs. The terms and conditions of her employment were governed by a collective bargaining agreement between GTE and her union, the Communications Workers of America. She appeals the district court’s grant of summary judgment in favor of GTE and its employees, Patricia Leathers, Carol Todd and Doug Bax...
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Edward D. Eckert, a state prisoner, appeals from the district court’s denial of his habeas corpus petition filed under 28 U.S.C. § 2254. Eckert contends the exclusion of alibi testimony during his state court trial violated his sixth amendment right to present a defense; that his trial counsel’s failure to comply with Nevada’s notice of alibi statute denied him effective assistance of counsel; ...
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935 F.2d 1083 137 L.R.R.M. (BNA) 2660, 56 Fair Empl.Prac.Cas. 333,56 Empl. Prac. Dec. P 40,840,119 Lab.Cas. P 10,796,6 Indiv.Empl.Rts.Cas. 1021 Betty PERUGINI, Plaintiff-Appellant,v.SAFEWAY STORES, INC., United Food and Commercial WorkersInternational Union Local 916; Gary Granskog;Frank Neth; Donald Weinrick and PeterMumford, Defendants-Appellees. No. 89-15425. United States ...
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This immigration case involves a ripple from the upheaval which led to the toppling of the Marcos regime and installation of the Aquino government in the Philippines in 1986. I In early 1983, petitioner Michael Mabu-gat, a Filipino, was employed as a “section manager” for Proctor and Gamble in the Manila metropolitan area. During that politically turbulent time, Mabugat became associa...
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Opinion Appellant James Glover appeals from a judgment denying mandamus relief in Ms challenge to the revocation of Ms license to practice medicine by respondent Board of Medical Quality Assurance. We affirm the judgment. On February 9, 1990, respondent issued a decision and order revoking appellant’s physician and surgeon’s license effective March 11,1990. Appellant’s license was revoked for viol...
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Opinion By petition for writ of habeas corpus, 1 Danilo Dayan seeks immediate release from the custody of the Department of Corrections. Petitioner alleges that he has been wrongfully denied application of good-time and work-time credits (Pen. Code, § 2931 et seq.) 2 to his sentence. Petitioner is confined pursuant to a 1980 judgment and sentence of 15 years to life....
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*291 Opinion Following a jury trial, the defendant appeals from a judgment of conviction of assault with a deadly weapon. We affirm. Factual and Procedural Background Using a fishing knife, the defendant inflicted three lacerations to the neck and chin of the prosecuting witness, Mr. Waiter, ranging from three and one-half to about eight inches in length. Waiter claimed that the defendant...
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OPINION OVERVIEW Appellant Camelback Hospital, Inc. (“Camelback” or “Hospital”) appeals from an order which bars its contingent claim for contribution against debtor Edward Buckenmaier (“Buckenmaier”). Camel-back’s principal contention is that it should be permitted to setoff its contribution claim against any monies Buckenmaier may potentially recover in his own action now pending a...
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Opinion In this appeal we are required to decide the applicability of the protections of the antideficiency law (Code Civ. Proc., § 580a et seq.) 1 to certain personal guaranties of a trust’s debt. These guaranties were made by a husband and wife who simultaneously held the capacities of trustors, trustees, and beneficiaries of the debtor, their own revocable living trust. The ...
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Vernon Howard, a federally licensed amateur or “ham” radio enthusiast, was denied permission to construct a 51-foot radio antenna in his back yard, and filed suit against the City. The district court found that the Federal Communications Commission (“F.C.C.”) had partially preempted the City’s zoning powers, and ordered the City to reconsider the application. Although the City then granted Howa...
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Nineteen states and numerous private parties brought antitrust suits against the defendants named above. These suits were consolidated in the district court and were ultimately dismissed. The plaintiffs appeal. We reverse the district court and remand. FACTUAL BACKGROUND The undisputed facts are set out by the district court in In re Insurance Antitrust Litigation, 723 F.Supp. 464, 468-70 (N.D.Cal...
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936 F.2d 1072 STONE FOREST INDUSTRIES, INC., a Delaware corporation,Plaintiff-Appellant,v.F. Dale ROBERTSON, Chief, United States Department ofAgriculture, Forest Service; David F. Jolly, RegionalForester, Region 3; Nick McDonough, Supervisor of theApache-Sitgreaves National Forest; John Hart, ContractingOfficer of the Apache-Sitgreaves National Forest,Defendants-Appellees. No. 90-15484...
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Arthuro Q. Bermudez, a prisoner incarcerated under the laws of Guam, appeals pro se the district court’s dismissal of his 42 U.S.C. § 1983 action against members of the Guam Territorial Parole Board (“Board”), his social worker at the prison, and other prison officials in their individual and official capacities. Bermudez contends that the district court erred in dismissing this action under Fe...
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The appellant and real-party-in-interest, Aldan-Pierce, appeals the Northern Mariana Islands Supreme Court’s issuance of a writ of prohibition to the Northern Mariana Islands Superior Court instructing the trial court to disregard a mandate from the Appellate Division of the District Court for the Northern Mariana Islands. I. The procedural background to this case is confusing due to what app...
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Opinion The People appeal from an order pursuant to Penal Code section 13871 dismissing an amended information which alleged respondent committed two counts of driving under the influence of alcohol causing injury and suffered a prior felony conviction for which he served a separate *364prison term. (Veh. Code, § 23153, subds. (a) & (b)2; Pen. Code, § 667.5, subd. (b).) The People contend: “The t...
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231 Cal.App.3d 327 (1991) 282 Cal. Rptr. 368 UNITED COMMUNITY CHURCH, Plaintiff and Respondent, v. ROBERT W. GARCIN et al., Defendants and Appellants. Docket No. B046856. Court of Appeals of California, Second District, Division One. June 19, 1991. *329 COUNSEL Charlston, Revich & Williams, Murchison & Cumming, Horvitz & Levy, George P. Schiavelli and Douglas G. Benedon for Defendants...
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501 U.S. 529 (1991) JAMES B. BEAM DISTILLING CO. v. GEORGIA ET AL. No. 89-680. Supreme Court of the United States. Argued October 30, 1990. Decided June 20, 1991. CERTIORARI TO THE SUPREME COURT OF GEORGIA. *531 Morton Siegel argued the cause for petitioner. With him on the briefs were John L. Taylor, Jr., and Richard Schoenstadt. Amelia Waller Baker, Assistant Attorney General of Georgia, argued...
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I. INTRODUCTION The issue in dispute is whether 11 U.S.C. Section 544(a)(3) enables the holder of an equitable interest in real property to avoid the transfer of another equitable interest in the subject real property. A. Procedural History On July 11, 1990, Thomas R. Zeigler (“Plaintiff”) filed a complaint (“Complaint”) against Hathaway Ranch Partnership, a California li...
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ORDER ON REVIEW OF MAGISTRATE JUDGE’S DISCOVERY ORDER This proceeding is a state prisoner’s petition for writ of habeas corpus. It has been referred to a magistrate judge for a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and the local rules of this Court. On May 6, 1991, the magistrate judge granted, to a limited extent only, petitioner’s application for protective order and...
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Opinion The instant appeal arises out of a dispute between defendants and appellants Riva Dudler et al. (appellant) and plaintiffs and respondents Sinai Memorial Chapel et al. (respondent) over whether appellant properly placed a monument containing a carved-in facial likeness of her deceased husband on a grave in a cemetery controlled by respondent. *194 After filing a comp...
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OPINION A lessor without knowledge of the debtors’ bankruptcy caused the post-petition repossession of the debtors’ leased automobile. The lessor received notice of the bankruptcy the day of the repossession but ■refused to return the vehicle. The trial court concluded that no compensable violation of the automatic stay had occurred and denied damages under § 362(h) 1 of the Ba...
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ORDER REMANDING CASE TO STATE COURT FOR LACK OF SUBJECT MATTER JURISDICTION This proceeding arises out of a marriage dissolution action wherein Plaintiffs ex-wife obtained an Income Withholding Order from the Minnesota Courts pursuant to an Order for Spousal Support. Plaintiff’s ex-wife served the Withholding Order on Plaintiffs employer, the Department of Veteran Affairs (“DVA”). DVA then commen...
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ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Plaintiff Allstate Insurance Company’s Motion for Summary Judgment was scheduled to be heard on April 25, 1991. After a review of the briefs, this court considered it appropriate to submit the motion on the pleadings pursuant to Local Rule 220-1, and now GRANTS the motion. INTRODUCTION Allstate Insurance Company (“Allstate”)...
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delivered the opinion of the Court. We have held that the Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate. This case requires us to determine whether the same rule applies...
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OPINION I. INTRODUCTION Plaintiff Utu Utu Gwaitu Paiute Tribe (“Tribe”) filed this complaint for declaratory and injunctive relief under the Administrative Procedure Act (“APA”) to challenge the validity of 43 C.F.R. § 4.603(a). The Department of Interior (“Department”) promulgated rules, among them § 4.603, for the purpose of establishing “procedures for the submission and considera...
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The majority correctly frames the issue in this case as “whether the trial court abused its discretion in dismissing the action in light of the discovery statutes embodied in the Code of Civil Procedure and interpreted by case law.” (Maj. opn., ante, p. 491.) I respectfully disagree, however, with the majority’s conclusion that no abuse occurred. It has long been accepted that discovery sanctions ...
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231 Cal.App.3d 415 (1991) 282 Cal. Rptr. 411 In re DAVID LEWIS NICKLES on Habeas Corpus. Docket No. A051071. Court of Appeals of California, First District, Division Two. June 20, 1991. *416 COUNSEL Ruby Udell Grad, under appointment by the Court of Appeal, for Petitioner. Daniel E. Lungren, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, John H. Sugiyama, Assistant Attor...
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Opinion “A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life.” (Civ. Code, § 4720, subd. (e); see also Civ. Code, § 196, subd. (a).) If the government supports a parent’s child, the parent has to reimburse the government subject to the three-year statute of limitations and the parent’s ability to pay...
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Opinion Petitioners Southland Title Corporation, Land Title Insurance Company and Lawyers Title Insurance Corporation (Southland) seek a writ of mandate compelling the Los Angeles Superior Court to vacate an order which overruled Southland’s demurrer to a cause of action for negligence and to enter a new and different order sustaining that demurrer. It was alleged that Southland had negli...
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*375 Opinion Opinion on Rehearing A1 Nakashima and George Price (defendants) appeal from a summary judgment granted plaintiffs FPI Development, Inc. (FPI) and K. W. Hunt in an action on a promissory note. 1 The case tenders two issues of importance to summary judgment proceedings. The first issue concerns the application of the parol evidence rule in such a proc...
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Opinion Introduction At the conclusion of a jury trial on December 15,1989, Linda Layne King was found guilty of being in possession of methamphetamine for purpose of sale in violation of Health and Safety Code section 11378. The jury found true an enhancement that Linda King was personally armed with a firearm in violation of Penal Code section 12022, subdivision (b). King also was found gui...
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delivered the opinion of the Court. The question before us is whether the First Amendment prohibits a plaintiff from recovering damages, under state promissory estoppel law, for a newspaper’s breach of a promise of confidentiality given to the plaintiff in exchange for information. We hold that it does not. During the closing days of the 1982 Minnesota gubernatorial race, Dan Cohen, an active Repu...
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936 F.2d 450w 33 Fed. R. Evid. Serv. 317 UNITED STATES of America, Plaintiff-Appellee and Cross-Appellant,v.Douglas James HILL, Defendant-Appellant and Cross-Appellee. Nos. 89-10643, 90-10036. United States Court of Appeals,Ninth Circuit. Argued and Submitted Jan. 17, 1991.Decided June 24, 1991. NOTE: THE COURT HAS WITHDRAWN THIS OPINION ...
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—I dissent. In Mackey v. Lanier Collection Agency & Service (1988) 486 U.S. 825 [100 L.Ed.2d 836, 108 S.Ct. 2182] (hereafter Mackey), the United States Supreme Court adopted two fundamental rules for the construction and application of the express preemption provision (29 U.S.C. § 1144(a)) of the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. § 1001 et seq.). The majority viola...
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Opinion The People seek a writ of mandate or prohibition after the court quashed subpoenas duces tecum seeking records from various mental *587 health professionals (doctors) 1 who had treated or tested Elizabeth Anne Broderick (Betty). 2 The court quashed the People’s subpoenas on the grounds they violated Betty’s state constitutional privilege against self-incrimination. We issued the o...
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Opinion Cesar Elias Cribas was convicted by a jury of rape (Pen. Code, § 261, subd. (2)), 1 bribery of witnesses (§ 137, subd. (a)), and conspiring with his brother, Danilo, to bribe witnesses (§ 182). He asserts a tape-recorded conversation between him and the victim was admitted in violation of the mandates of the United States Supreme Court in Massiah v. United States (1964) 377 U.S. 2...
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*351 Opinion Introduction Plaintiffs appeal from a judgment of the trial court denying their petition for writ of mandate, certiorari or prohibition. Statement of Facts Plaintiffs 1 hold licenses as harness racing drivers issued by defendant California Horse Racing Board (board). Real party in interest Los Alamitos Racing Association (LARA) owns and oper...
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Opinion Montie S. Day appeals a judgment of the Alameda County Superior Court dismissing his complaint against respondents Christina Juris Papadakis and George Papadakis following the grant of summary judgment on the complaint and its severance from a cross-complaint filed by respondents. Appellant challenges the award of attorneys’ fees to respondents, contending that entry of judgment o...
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OPINION INTRODUCTION The past decade has witnessed a rapidly growing concern regarding the ethical conduct of lawyers. More and more citizens are lodging complaints alleging misconduct by attorneys, and state bar associations are becoming increasingly active in investigating and addressing such complaints. 1 Even with these efforts, the public remains critical of existing ...
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Opinion After defendant waived his right to a jury trial, the court found defendant guilty of first degree murder of Kenneth Williams (count 1; Pen. Code, § 187, subd. (a)) and that proceedings on count 2, second degree robbery of Kenneth Williams (Pen. Code, § 211), were barred by the *656 proscription against double jeopardy. Defendant was sentenced to state prison for a term of 25 years to...
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231 Cal.App.3d 515 (1991) 282 Cal. Rptr. 556 RICHARD GAYER, Plaintiff and Appellant, v. POLK GULCH, INC., Defendant and Respondent. Docket No. A050821. Court of Appeals of California, First District, Division Four. June 21, 1991. *517 COUNSEL Richard Gayer, in pro. per., for Plaintiff and Appellant. King, Shapiro, Mittelman & Buchman, Mark R. Mittelman and Mark J. Zanobini for Defendant and R...
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Opinion Statement of the Case Donald W., the alleged natural father of Shereece B., a minor, appeals from an order terminating his parental rights. (Civ. Code, § 238.)1 He claims the court lacked jurisdiction to enter its order. He also claims that the order, if properly entered, violates his constitutional right to equal protection under the law. We find no merit to these claims and affirm the ...
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936 F.2d 1547 MULTNOMAH LEGAL SERVICES WORKERS UNION; NationalOrganization of Legal Services Workers; District65, Plaintiffs-Appellees,v.LEGAL SERVICES CORP., a nonprofit District of ColumbiaCorporation, Defendant-Cross-Claimant-Appellant,v.MULTNOMAH COUNTY LEGAL AID SERVICE, INCORPORATED, anonprofit Oregon Corporation,Defendant-Cross-Defendant-Appellee. No. 89-35762. United States C...
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Ticor Title Insurance Company (Ticor) brought suit for damages resulting from its reliance on a fraudulent federal tax lien release that had been forged by Shepard and Florida. The district court, following a bench trial, entered a judgment in favor of Ticor after concluding that Shepard and Florida had violated the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-19...
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Opinion Attorney Stuart A. Comis and the law firm of Cohen, England & Whitfield appeal from a judgment entered against them and in favor of plaintiff Gunnar Skarbrevik after a jury trial on the issues of conspiracy to defraud and professional negligence. 1 The principal questions presented in this appeal concern the liability of counsel of a close corporation to a minority shar...
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Plaintiffs-appellees Dr. Eugene Glick, a physician, and Planned Parenthood of Washoe County, a non-profit family planning clinic, challenged the constitutionality of Nevada Revised Statute (NRS) 442.-253(l)(c), which requires that an attending physician performing an abortion explain the physical and emotional implications of having an abortion to the woman; NRS 442.255, which requires parental...
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Opinion Appellant Genevieve Hall sued respondent Great Western Bank for wrongful termination of her employment. Her complaint alleged that she was fired because she refused to comply with respondent’s instruction to withdraw her application for partial unemployment benefits which she had filed with the Employment Development Department. She alleged that this was the sole reason for her te...
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Opinion On August 11, 1981, respondent State Board of Equalization (Board) issued a notice of redetermination to appellant Philips *725and Ober Electric Co. (Philips) assessing an underpayment of tax and interest in the amount of $19,144.87. Philips paid this amount and then filed a claim for refund for the entire amount. The Board denied the claim for refund. Thereafter, appellant filed a “Compl...
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Opinion Raymond Winston (Winston) appeals from a judgment based on the grant of a motion for summary judgment on his complaint in favor of National Broadcasting Company, Inc., and Reg Grundy Production, Inc. (collectively, NBC). We affirm the judgment. Factual and Procedural Statement On June 25, 1985, Winston filed an action against NBC arising from the latter’s refusal to...
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Opinion —We granted review in this case to resolve a conflict in the Courts of Appeal as to when a cause of action against a title insurer alleging a failure to defend accrues under Code of Civil Procedure section 339, subdivision 1 (hereafter section 339(1))—when the insurer refuses to defend, or when the underlying action is terminated by final judgment? 1 Section 339(1) provides for a two-...
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Phoenix Baptist Hospital and various Arizona health care providers appeal the dismissal of their Federal Tort Claims Act action, alleging that the Department of Health and Human Services was negligent in overseeing the administration of the experimental Arizona Health Care Cost Containment System. The district court held that it lacked subject matter jurisdiction because the federal government ...
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Merle Norman Cosmetics, Inc. (Merle Norman) asked the United States District Court to enjoin Jessie Louise Victa (Victa) from proceeding with a lawsuit that she filed in state court. The state court action charges Merle Norman with age discrimination in violation of California law. The district court dismissed Merle Norman’s complaint for injunctive relief. We affirm. I In September, 1985, Je...
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This diversity action concerns the dissolution of a partnership and the alleged breach of fiduciary duties by each of the two partners to the other. Lund’s claim is that the partners reached a general format for dissolution of the partnership that was memorialized in an April 6 letter, but that the partnership was not dissolved until the formal agreement of dissolution was executed by the parti...
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Edward Byron Ballard appeals the district court’s dismissal of his habeas corpus petition on the merits. He is incarcerated in California for armed robbery and argues that the definition of “use of a firearm” used to enhance his sentence was broader *455 than the California sentencing laws require, thereby denying him due process. He also argues that even if the state court’s definition of fire...
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We consider whether the district court erred in denying Johnson’s motion to suppress evidence seized from the locked trunk of his car during an inventory search. We reverse. BACKGROUND While Johnson was driving his car in Ellensburg, Washington, he was stopped for traffic infractions. He assaulted a police officer and fled the scene on foot, leaving his car parked in front of a motel. He was ...
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939 F.2d 690 137 L.R.R.M. (BNA) 2866, 119 Lab.Cas. P 10,809 Robert "Red" KINNEY, Individually and as a Member on Behalfof Local Union 396 of the InternationalBrotherhood of Electrical Workers,Plaintiffs-Appellants,v.The INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, CharlesH. Pillard, Individually, et al., Defendants-Appellees. No. 85-2647. United States Court of Appeals,Ninth C...
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Opinion Introduction Convicted of second degree murder with a finding that he personally used a firearm (Pen. Code, §§ 187, 12022.5), defendant was sentenced to 17 years to life in state prison. *785 On appeal, defendant asserts he was illegally tried by a superior court judge who did not live in the county in which he sat, in violation of Government Code section 69502....
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Opinion The judgment creditor in this case sought a judicial order authorizing the sale of real property she had attached to satisfy the judgment. The trial court denied the request, reasoning that the writ of attachment was invalid because the clerk of the court had issued it without requiring the creditor to post a bond. We affirm. *881 Facts In 1983, appellant Peggy Vershbow instituted...
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501 U.S. 923 (1991) PERETZ v. UNITED STATES No. 90-615. Supreme Court of the United States. Argued April 23, 1991. Decided June 27, 1991. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. *924 Joel B. Rudin argued the cause for petitioner. With him on the briefs were Richard W. Levitt and Joel Brenner. Deputy Solicitor General Bryson argued the cause for the United States. ...
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501 U.S. 1262 111 S.Ct. 2918. 115 L.Ed.2d 1081 Ralph Cecil FELTROP, petitioner,v.State of MISSOURI No. 90-7928 Supreme Court of the United States June 28, 1991 On petition for writ of certiorari to the Supreme Court of Missouri. The petition for a writ of certiorari is denied. Justice MARSHALL, dissenting. 1 In Clemons v. M...
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*929Opinion The action underlying this appeal is one for declaratory relief brought by Harbor Insurance Company (plaintiff) against its insured, City of Ontario (defendant), to resolve a single issue. That issue is whether defendant insured is required to contribute its self-insured retention after it gave plaintiff insurer its permission but not its agreement to settle a third party action filed...
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937 F.2d 1382 60 USLW 2036 Jerry L. BRANCH, Sylvia Branch, Colby Branch, Plaintiffs-Appellees,v.Dale L. TUNNELL, Individually and as Special Agent of Bureauof Land Management, State of Montana, John D. LaFaver,Individually and as Director of Revenue, Peter Donnelly,Individually and as Revenue Agent for Montana Department ofRevenue, Joe Doe I, Individually and as employee of MontanaDepartme...
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INTRODUCTION Helder C. Simas was charged with conspiracy to accept bribes in violation of 18 U.S.C. § 371 (Count 1), accepting a bribe in violation of 18 U.S.C. § 666 (Count 2), and mail fraud in violation of 18 U.S.C. § 1341 (Counts 3 through 6). A jury found Simas guilty on Counts 2 through 6. Simas appeals his convictions. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. BACKGRO...
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Opinion Summary Frank Hublou (Husband) appeals after the trial court ordered him to pay to Lilia Hublou (Wife) $5,000 of the attorney fees and costs she incurred opposing his motion to reduce spousal support. We will affirm as there was no abuse of discretion. *959 Facts and Proceedings Pursuant to a July 1987 stipulation, Husband agreed to pay Wife spousal...
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Opinion Introduction Ramiro Guerra Madera stands convicted of two counts of burglary (Pen. Code, § 460, subd. I), 1 five counts of lewd and lascivious acts with a child under the age of fourteen (§ 288, subd. (a)), two counts of oral copulation (§ 288a, subd. (c)) and three counts of sodomy (§ 286, subd. (c)). The convictions stem from conduct involving Madera and several minor males betwee...
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231 Cal.App.3d 766 (1991) 282 Cal. Rptr. 664 TOM HUENING, Plaintiff and Respondent, v. MARCH FONG EU, as Secretary of State, etc., Defendant and Respondent; DONALD MALE, as State Printer, etc., Real Party in Interest and Respondent; TOM NOBLE et al., Real Parties in Interest and Appellants. Docket No. C008543. Court of Appeals of California, Third District. June 25, 1991. *768 COUNSEL No appearan...
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Opinion Plaintiff, Enterprise Leasing Corporation, appeals from judgment entered against it and in favor of defendant Shugart Corporation (Shugart) after the trial court granted defendant’s motion for nonsuit made at the conclusion of plaintiff’s opening statement. *742 Facts Pursuant to a written lease agreement executed on February 21, 1986, (lease), plaintiff leased ...
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Opinion Defendants appeal, inter alia, from a postjudgment order establishing the sum owing on an existing judgment as $258,990.47. They claim the judgment has been satisfied in full and, in any event, plaintiff is barred by the one form of action rule (Code Civ. Proc., §§ 725a, 726) 1 and the antideficiency statutes (§§ 580a, 580d) from further collection efforts. We agree. Ac...
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Opinion Montrose Chemical Corporation of California and International Insurance Company are involved in litigation to determine whether various insurance companies are obligated to indemnify Montrose for hazardous waste pollution problems at several sites in California. International appeals from an order imposing discovery sanctions against it. We affirm and impose further sanctions for ...
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*1352 Opinion Introduction Plaintiff Sumita Chatterjee appeals from an order denying her petition for writ of mandate to compel defendant Kenneth Kizer, M.D., as Director of the Department of Health Services, to set aside his order denying her Medi-Cal benefits for the period of September 1985 through September 1986. Statement of Facts Plaintiff applied to Los Ange...
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Opinion Petitioner Alendra Birdsall appeals from a judgment of dismissal following the sustaining of a demurrer without leave to amend. Birdsall filed a petition for writ of mandate against the County of Riverside, the Personnel Director of the County of Riverside, and the Coroner and Public Administrator of the County of Riverside (referred to collectively as County). In her petition, sh...
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936 F.2d 1084 DE ANZA PROPERTIES X, LTD., a California LimitedPartnership; William H. Douglas; Melba C.Douglas, as Trustees of the DouglasFamily Trust, Plaintiffs-Appellants,v.COUNTY OF SANTA CRUZ, Defendant-Appellee. No. 89-15750. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 3, 1990.Decided June 28, 1991. Charles S. Treat, Latham & Watki...
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937 F.2d 465 CALIFORNIA RURAL LEGAL ASSISTANCE, INC.; AmericanFederation of Labor and Congress of IndustrialOrganizations; International Ladies' Garment Workers Union;Maria Rita Aguilar; and Maria F. Castillo, Plaintiffs-Appellees,v.LEGAL SERVICES CORPORATION; Terrance J. Wear, President;and Legal Services Corporation Pacific RegionalOffice, Defendants-Appellants. No. 89-16734. Uni...
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937 F.2d 415 Alan B. BURDICK, Plaintiff-Appellee,v.Morris TAKUSHI, Director of Elections, State of Hawaii;John Waihee, Lieutenant Governor of Hawaii; BenjaminCayetano, in his capacity as Lieutenant Governor of theState of Hawaii, Defendants-Appellants.Alan B. BURDICK, Plaintiff-Appellee,v.Benjamin CAYETANO, in his capacity as Lieutenant Governor ofthe State of Hawaii; Morris Takushi, Directo...
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937 F.2d 1388 21 Envtl. L. Rep. 21,117 UNITED STATES of America, Plaintiff-Appellee,v.Patrick LEE, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Jen-Tai CHU, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Wesley Ming HSU, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Meng Gin HSU, Defendant-Appellant.UNITED STATES of America, Pl...
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938 F.2d 125 13 Employee Benefits Ca 2492 Maurice HORN; Martin Gordon; Rose Friedman, Plaintiffs-Appellants,v.BERDON, INC. DEFINED BENEFIT PENSION PLAN; Ornyte, Inc.;Proform, Inc.; Rod Burwell; Richard J. Kelber;John Steinbergs, Defendants-Appellees. No. 89-55391. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 13, 1990.Decided July 1, 1991. ...
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In this second appeal, the Guam Department of Revenue (“Guam” or “Department”) seeks to assess additional taxes against individual Guam taxpayers based on their shares in an S corporation chartered in the Commonwealth of the Northern Mariana Islands (“CNMI”). The district court found that the three-year statute of limitations on the individual Guam return ran from the filing of the corporate re...
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Plaintiff sued his railroad employer for damages under the Federal Employers Liability Act (FELA). He appeals a summary judgment in favor of the railroad. We conclude that triable issues of fact require a remand for further proceedings. Plaintiff came to the workplace after an unexplained absence, smelling of alcohol. His superior suspended him for violating company rules. Plaintiff left t...
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937 F.2d 467 Luis MATA, Petitioner-Appellant,v.James G. RICKETTS, Attorney General of the State of Arizona;Samuel Lewis, Director ADOC; Lloyd Bramlett,Warden, ASPC-F; John Avenenti, DeputyWarden, ASU, Respondents-Appellees. No. 87-1731. United States Court of Appeals,Ninth Circuit. Argued and Submission Deferred June 16, 1988.Resubmitted Without Further Argument Feb. 1, 19911.Dec...
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Ocampo, Donato, and Arango appeal from their convictions for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), and conspiracy, in violation of 21 U.S.C. § 846. Arango and Ocampo also appeal their sentences. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over these timely appeals pursuant to 28 U.S.C. § 1291. We reverse the...
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The Republic of Nicaragua appeals from two orders of the district court which denied its motion to compel international arbitration of a contract dispute (Count I) and granted summary judgment to Standard Fruit Company (“SFC”) and its two parent companies, Standard Fruit and Steamship Company (“Steamship”) and Castle & Cooke, Inc. (“C & C”), 1 on Nicaragua’s breach of contract claim ...
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937 F.2d 1415 STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., a corporation,Plaintiff-Appellee,v.Walter Allen DAVIS, and Brian J. Painter, Defendants,andCharles R. Keukelaar, Shellie A. Keukelaar, Charles RubinKeukelaar, a minor, by Shellie A. Keukelaar, hisGuardian ad litem, Defendants-Appellants. No. 89-56044. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 7,...
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937 F.2d 1409 Malcolm George GREYSON, Petitioner-Appellant,v.John E. KELLAM, Acting Administrator, Oahu CommunityCorrectional Center; Harold Falk, Director,Department of Corrections, State ofHawaii, Respondents-Appellees. No. 90-16165. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 6, 1991.Decided July 1, 1991. Myles S. Breiner and Susan Barr, Ho...
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Opinion Terry Y. Brown and Barbara L. Whisenant, as executors of the estate of Brenda Lu McNeil, appeal an adverse summary judgment entered in their wrongful death action against Dr. Nainamohamed A. Rahman. The court found that because Rahman had been adjudged not liable in McNeil’s personal injury action, her heirs were collaterally estopped from relitigating the issue of the doctor’s li...
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937 F.2d 1397 34 Fed. R. Evid. Serv. 734 UNITED STATES of America, Plaintiff-Appellee,v.Ernest James PERKINS, Defendant-Appellant. No. 88-5237. United States Court of Appeals,Ninth Circuit. Submitted Dec. 7, 1990.*Decided July 1, 1991. Philip Deitch, Los Angeles, Cal., for defendant-appellant. Adam B. Schiff, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-a...
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231 Cal.App.3d 1043 (1991) 282 Cal. Rptr. 726 ERNEST F. VALDEZ, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents. Docket No. B048372. Court of Appeals of California, Second District, Division Seven. June 27, 1991. *1047 COUNSEL George Kezios for Plaintiff and Appellant. James K. Hahn, City Attorney, Frederick N. Merkin and Robert Cramer, Assistant City Attorneys,...
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Opinion Following a jury trial in municipal court, appellant was convicted of making telephone calls with the intent to annoy, in violation of Penal Code section 653m, subdivisions (a) and (b). 1 Appellant contends both statutes are unconstitutionally overbroad because they impinge on his free speech rights, and that subdivision (a) is unconstitutionally vague as well. We trans...
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Opinion On October 18, 1985, R.N.C., Inc., (RNC) filed a complaint against George and Charlotte Tsegeletos and Warren and Edith DeGraff. (Super. Ct. No. 125382.) The complaint alleged, in essence, that the Tsegeletos and DeGraffs had guaranteed the debts of Skip Sports Group, Inc., that Skip Sports had failed to pay its debts to RNC, and that the Tsegeletos and DeGraffs therefore were liable to R...
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Opinion In this case, we hold an employer does not have a cause of action to recover damages for increased workers’ compensation insurance premiums and lost profits incurred as a result of negligent injury to its employee. I Facts Employees of respondent Paller & Goldstein negligently injured appellant Hester Dry wall’s employee, Harold Fischl, while they were working toget...
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Opinion Plaintiff, Hans S. Nymark, appeals from the judgment entered in favor of defendant, Heart Federal Savings & Loan Association, after the trial court granted defendant’s motion for summary judgment in this action to recover damages allegedly resulting from defendant’s negligence in appraising plaintiff’s property in connection with his application for a loan from defendant to refina...
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Opinion In this case we hold that where the lease of a mobilehome park was intended to be security for payment of a debt, the lease was in effect a mortgage, and thus the lessee’s rights to accrued profits from operation of the mobilehome park were limited to the amount of the debt, plus interest. Doris N. Earp appeals from a judgment determining that she owed $290,656 plus interest to her form...
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Opinion Following a jury trial both McLarand, Vasquez & Partners, Inc. (McLarand), and Downey Savings & Loan Association (Downey) were denied relief on the complaint and cross-complaint they brought against each other. Both sought costs and attorneys’ fees. The trial court awarded costs to Downey but denied its attorneys’ fees; it denied both to McLarand. On appeal McLarand contends it, t...
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Opinion Mary Loera Hernandez was convicted of three counts of violation of the Health and Safety Code 1 and sentenced on December 13, 1990. A notice of appeal was filed the following day. Hernandez sought bail pending appeal which was denied. She now petitions this court 2 arguing that the offenses of which she is convicted are not violent felonies under Penal Code 3 section 667.5, subdiv...
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Opinion Lubomir J. Valenta appeals an order denying his motion to terminate a claim of lien by his former attorney, H. Richard Bixby. The trial *1467 court ruled Bixby was entitled to a lien for the reasonable value of his services against the judgment in an underlying case. Valenta contends the court lacked jurisdiction because the validity of the lien must be decided in an independent actio...
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Opinion This is an appeal from a judgment of dismissal entered upon plaintiffs’ failure to bring the action to trial within three years. On appeal, plaintiffs argue that the trial court erred in granting the motion to dismiss when another judge had previously granted plaintiffs’ motion to advance and had set the case for trial. We agree and reverse. Facts In October 1983, plaint...
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Opinion I. Introduction Plaintiff Constantin Velicescu, individually and doing business as Connie Construction Co., attempts to appeal from an order granting defendant Dan Fauna’s motion to vacate a default entered by the clerk of the trial court. Defendant correctly contends that the order was not appealable. Therefore, we dismiss the appeal. II. Discussion A. The Order Granting Defenda...
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Opinion In this appeal we shall hold judicial review of a decision of the California Horse Racing Board (Board) to issue a license is barred by the failure of plaintiff, California Standardbred Sires Stakes Committee, Inc., to file its petition for writ of mandamus in the superior court within the 30-day period provided by statute. We shall therefore reverse the judgment of the superior c...
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935 F.2d 1555 Joy TOMAS, Plaintiff-Appellant,v.Winona RUBIN, individually and in her capacity as Directorof the Hawaii Department of Human Services; Catherine JeanCarman, individually and in her capacity as Administrator ofthe Hawaii Child Support Enforcement Agency, Defendants-Appellees. No. 90-15201. United States Court of Appeals,Ninth Circuit. July 2, 1991. John Ish...
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938 F.2d 128 137 L.R.R.M. (BNA) 2776, 119 Lab.Cas. P 10,820 RALPH ANDREWS PRODUCTIONS, INC.; Ralph AndrewsPresentations, Inc.; and Ralph Andrews,individually, Plaintiffs-Appellants,v.WRITERS GUILD OF AMERICA, WEST; Harold Gast Productions,Inc.; and Harold Gast, individually, Defendants-Appellees. No. 90-55403. United States Court of Appeals,Ninth Circuit. Argued and Submit...
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I In 1975, Michael Dahms pleaded guilty in Michigan state court to assault with attempt to rob while armed and was sentenced to prison. He was released on parole in August 1981 and released from parole in April 1983. In June 1989, while in Montana, he was involved in an aggravated assault, using one of his two shotguns. He was charged with assault in state court and in federal court for being a...
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FACTS AND PROCEEDINGS On November 30, 1987, police chased Donnie Roy O’Neal through the streets of Clovis, California. O’Neal abandoned his car in a pasture and fled on foot. When an officer ordered him to stop, O’Neal reached for his waistband and then extended his arm in the direction of the officer. O’Neal was later arrested. A gun holster was recovered from the site where O’Neal extended hi...
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910 F.2d 663 UNITED STATES of America, Plaintiff-Appellee,v.Donnie Roy O'NEAL, Defendant-Appellant. No. 89-10051. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 8, 1990.Decided Aug. 9, 1990. Stephen Mensel, Asst. Federal Public Defender, Fresno, Cal., for defendant-appellant. Lawrence Lincoln, Asst. U.S. Atty., Fresno, Cal., for plaintiff-a...
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Bruce Wayne Peters appeals his conviction for assaulting an officer of the United States in violation of 18 U.S.C. § 111 (1969 & Supp.1991). Peters contends that he was denied his sixth amendment rights by the district court’s exclusion of his expert witness as a sanction for defense counsel’s asserted violation of discovery rules. We hold that no discovery violation occurred and remand to the ...
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937 F.2d 1439 1992 A.M.C. 149 Richard NEWBY; Whitney Fidalgo Seafoods, Inc., a MarineCorporation, Plaintiffs-Appellees,v.F/V KRISTEN GAIL, Official No. 618791, her engines, tacklegear, equipment and appurtenances, Defendant.andBruce E. JOYCE; Jane Doe Joyce,Defendants/Third-Party-Defendants/Appellants,v.Steven N. SLOTVIG; Jane Doe Slotvig,Defendants/Third-Party-Defendants/Appellees.Rich...
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937 F.2d 1427 AIR NORTH AMERICA; Richard Neumann, President of Air NorthAmerica, Inc.; Ross R. Hart, Vice President ofAir North America, Inc., Petitioners,v.DEPARTMENT OF TRANSPORTATION, Respondent. No. 89-70245. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 3, 1990.Decided July 2, 1991. Ross R. Hart, and Richard D. Neumann, in pro se. T...
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Opinion Dr. Paul D. Rosenblit appeals the denial of his petition for a writ of mandate to compel Fountain Valley Regional Hospital and Medical *1438 Center (Hospital) to reinstate his medical staff membership and clinical privileges. The trial court specifically rejected the doctor’s claim he was denied a fair hearing. However, the California Medical Association (CMA) filed a...
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Opinion This appeal arises from a jury verdict in favor of Patricia S. Teitel against First Los Angeles Bank (Bank). Following a jury trial in which Teitel received a verdict of some $9,000 in general damages and $500,000 in punitive damages against Bank, the trial court denied a remittitur motion to alternatively reduce the amount of punitive damages or grant a new trial, but granted Ban...
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Opinion We conclude the trial court properly enjoined defendants County of Los Angeles and the Sheriff’s Department of the County of Los Angeles from unlawfully interfering with the playing of pai gow, pai gow poker, and pan 9 at the Bell Gardens Bicycle Club, the California Commerce Club, the El Dorado Club, and the Normandie Club (the card clubs). We affirm the judgment and impose sanct...
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Opinion Barbara D. appeals from a juvenile court order instituting guardianship of two of her children, Richard C. and Jennifer C. The court issued letters of guardianship upon its finding guardianship as the appropriate permanent plan in the place of adoption. An earlier Civil Code section 232 petition for termination of parental rights brought by the Stanislaus County Department of Human Service...
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Freedom Food appeals the denial of its motion to vacate a stipulated judgment on the ground that the stipulation was signed on its behalf by a non-lawyer. We affirm. I Freedom Food Center, Inc. was party to a collective bargaining agreement obligating it to contribute to employee benefit plans. Plaintiffs are the trustees of those plans. Beginning in October 1987, Freedom stopped making the requir...
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Opinion William Allen Garrett (Garrett) entered a plea of guilty in superior court case No. CRN17202 to driving under the influence in violation of Vehicle Code section 23153, subdivision (a) while on felony bail in violation of Penal Code 1 section 12022.1. On May 15, 1990, Garrett was sentenced on two other felony cases, Nos. CRN17201 and CRN15678, and *1526 this case. A term of eight yea...
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Opinion Maria Ochoa (defendant) was found guilty by a jury of one count of welfare fraud (Welf. & Inst. Code, § 10980, subd. (c)(2)), one count of food stamp fraud (Welf. & Inst. Code, § 10980, subd. (c)(2)) and nine counts of perjury. (Pen. Code, § 118.) She was placed on probation for five years subject to certain terms and conditions. She appeals, contending that the trial court erred ...
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On July 17, 1989, Paul Michael Mooney-ham pleaded guilty to two counts of unarmed bank robbery. The presentence report concluded that Mooneyham was entitled to a two-level reduction in his Sentencing Guidelines offense level for acceptance of responsibility and determined the level to be 19. However, because Mooneyham qualified as a career offender, Guidelines section 4B1.1 required that his offe...
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Manuel Jesus Torres appeals his conviction on two counts of aggravated sexual abuse in violation of 18 U.S.C. § 2241(c) (1988). He contends, first, that the district court erred in refusing to allow him to cross-examine the victim regarding a subsequent incident of sexual behavior with another individual; second, that the district court erred in refusing to allow him to present testimony that t...
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937 F.2d 1444 19 Fed.R.Serv.3d 1370 RICHMARK CORPORATION, a California Corporation,Plaintiff-Counter-Claim-Defendant,v.TIMBER FALLING CONSULTANTS, INC., an Oregon Corporation,Defendant-Counter-Claim-Third-Party Plaintiff-Appellee,v.PEACOCK MANUFACTURING COMPANY, INC., a Texas Corporation,Zhu Yuanchang, Eugene Wang, James Yang, FrancisTong, Third-Party-Defendants,andBeijing Ever Bright Indu...
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937 F.2d 1450 60 USLW 2057, 13 Employee Benefits Ca 2545 Duane ABLAMIS, Trustee of the RBJ Auto Parts Distributors,Inc. Profit Sharing Trust and the A & M MotorSupply, Inc. Profit Sharing Trust,Plaintiff-Appellee,v.Gay M. ROPER, Executor of the Estate of Glee Ann Ablamis,Defendant-Appellant. No. 89-15352. United States Court of Appeals,Ninth Circuit. Argued and Submitted Ap...
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Opinion Appellant Teachers’ Retirement Board of the State of California (the Board) denied respondent Sharon Abshear’s application for a disability allowance, even though an injury suffered by Abshear undisputedly prevents her from performing her duties as a physical education teacher. The Board justified its denial on the grounds that Abshear could become qualified as a classroom teacher withi...
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Opinion We review a decision of respondent Workers’ Compensation Appeals Board (Board) that 70 percent of applicant’s cardiovascular and psychiatric disability should be apportioned to preexisting disability. Because we conclude the employer failed to meet its burden of proving applicant had preexisting cardiovascular and psychiatric disability, we will annul the Board’s order denying reconside...
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Opinion Petitioner California Insurance Guarantee Association (CIGA) seeks a writ of mandate directing the respondent court to vacate its order staying the trial of a declaratory relief action commenced by CIGA to determine issues of coverage under a liability policy issued by a now insolvent insurer. As we conclude that CIGA has no better or greater right to a trial preference for resolution o...
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Opinion Robert Rex and P. J. Rex appeal from the judgment following a court trial declaring their operation of a bed and breakfast inn to be in violation of Sonoma County (hereinafter County) zoning ordinances and permanently enjoining them from maintaining a bed and breakfast inn on their property without a use permit. Appellants contend the trial court was in error in failing to find th...
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Opinion Javier Doroteo Chavez was charged with receiving stolen property (Pen. Code, § 496, subd. 1) and grand theft of an automobile (Pen. Code, § 487h, subd. (a).) It was also alleged defendant had suffered a prior *1474 term of imprisonment for robbery pursuant to Penal Code section 667.5, subdivision (b). 1 After a jury trial, defendant was acquitted of receiving stolen property but c...
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Opinion Plaintiff Mary V. Wildensten appeals from the judgment entered after the trial court sustained a demurrer to her first amended complaint without leave to amend. The trial court ruled that Wildensten failed to state a cause of action for inverse condemnation. We affirm. Factual and Procedural Background The relevant allegations of Wildensten’s first amended complaint are ...
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Opinion In this case we review the methods used by the State Board of Equalization (the Board) to assess railroad operating assets. We conclude, as did the superior court, that the Board’s “composite life” model cannot legally be applied to railroad operating property. We also hold, however, that the *989 superior court erred in finding illegal certain Board techniques for es...
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Opinion In this consolidated appeal arising from a lawsuit against Storer Communications, Inc. (Storer), which at the time owned television Channel 39 and was operating the station under the call letters of KCST-TV, San Diego, we consider the issue of special damages in defamation actions. Naomi O’Hara sued Storer for slander, and, in a trial limited to special damages, a jury awarded her $300,00...
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Opinion —We are called on to decide whether it is error to instruct a jury that the “getaway” driver in a robbery may be convicted of aiding and abetting the robbery, and therefore of being a principal rather than a mere accessory after the fact (Pen. Code, §§ 31, 32; all subsequent statutory references are to this code unless otherwise indicated), even if the jury finds that the defendant did not...
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William P. Cheng deducted $30,000 from his income in 1977 and $60,000 in 1978 based on royalty payments he made in those years on diamond mining investments. The Commissioner of the Internal Revenue Service disallowed the deductions, proposing a deficiency in taxes paid for those years. Cheng petitioned the Tax Court for a review of the ruling. Cheng appeals from the Tax Court’s order granting ...
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This appeal involves a dispute between the Confederated (Indian) Tribes of the Col-ville Reservation together with Lawrence Fry, an enrolled member (the Tribes), and the State of Washington with respect to one of the latter’s motor vehicle traffic laws. The issue is one of law: does the State of Washington possess jurisdiction over on-reservation Indians to enforce its statute prescribing speed...
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These consolidated appeals present two issues. First, whether tax return information that is included in notices of federal tax liens recorded in a California County Recorder’s office, and in a bankruptcy petition filed by the taxpayer, is confidential within the meaning of 26 U.S.C. § 6103. Second, if the tax return information was confidential within the meaning of that section, whether the dis...
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Defendants Alexander and Peele were convicted of trafficking in herring roe on kelp — fish eggs on seaweed.1 This, it turns out, is an exotic delicacy that fetches as much as $60 per pound in Japan. In fact, global demand for this gustatory delight has endangered Alaska’s fisheries, inducing the state to prohibit all harvesting except for subsistence uses. Unhappily for the government, this fish t...
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937 F.2d 1478 Tom SWARNER, and Jane Swarner, and the marital communitythereof, et al.; the Ranger Publishing Company,Inc., a Washington corporation,Plaintiffs-Appellees,v.UNITED STATES of America; Richard Cheney, Secretary of theDepartment of Defense; Larry Else; Michael P.W. Stone,Secretary of the Department of the Army; Callum A.H.Waller, Commander, Fort Lewis, Defendants-Appellants,and...
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Jeffrey Jenkins was found guilty of possessing an unregistered sawed-off shotgun in violation of 26 U.S.C. § 5861(d). He appeals, arguing that the district court erred in finding his post-arrest confessions voluntary, admitting certain evidence, and failing to give a particular jury instruction. Because we conclude that the district court erroneously admitted Jenkins’s coerced confessions, we r...
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Opinion The County of Monterey (hereafter, County) attempts to appeal from an order directing it to pay attorney fees of $500 to defendant Anthony Mahabir’s counsel, Gary E. Gray, pursuant to Code of Civil Procedure section 128.5. 1 A threshold issue is the appealability of this order. *1652 This paternity action, filed in June 1989 by County on behalf of Cynthia ...
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Opinion This is an appeal by appellants City of Los Angeles (City), the Los Angeles City Fire Department (Department), Donald Manning, the Department’s chief engineer and general manager (Chief Engineer), and the board of fire commissioners from a judgment confirming an arbitrator’s award. The award directed the Chief Engineer to constitute a new board of rights to reconsider the Department’s t...
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Opinion Long Beach Equities, Inc. (LBE) desires to build 249 single-family residences on a 250-acre parcel of land it owns adjacent to the City of Simi Valley (City). LBE contends that land use regulations of the County of Ventura (County) and City, on their face and as applied, will so greatly delay its development plans as to render them economically infeasible. We hold that this s...
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53 Cal.3d 1115 (1991) 811 P.2d 757 282 Cal. Rptr. 465 THE PEOPLE, Plaintiff and Respondent, v. EARL PRESTON JONES, Defendant and Appellant. Docket No. S004664. Crim. No. 24382. Supreme Court of California. June 27, 1991. *1124 COUNSEL Richard B. Mazer, under appointment by the Supreme Court, and David A. Nickerson for Defendant and Appellant. John K. Van de Kamp and Daniel E. Lungren, Attorneys G...
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Roy Patrick Cook appeals his conviction and sentence for possession of ephedrine with the intent to manufacture methamphetamine in violation of 21 U.S.C. § 841(d)(1). We affirm his conviction but remand for re-sentencing. PROCEEDINGS On June 27, 1989 Cook was indicted on two counts, one charging him with the attempted manufacturing of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and...
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Opinion After a jury trial appellant Mark Renee Thomas was convicted of possession of cocaine base (Health & Saf. Code, § 11350) and transportation of cocaine base (Health & Saf. Code, § 11352). On appeal, he contends: 1) the trial court coerced the jury into returning a verdict, in violation of his rights to an impartial jury and fair trial, and 2) his conviction of possession should hav...
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938 F.2d 153 TAHOE-SIERRA PRESERVATION COUNCIL, INC., a Californianon-profit corporation and membershiporganization, et al., Plaintiffs-Appellants,v.TAHOE REGIONAL PLANNING AGENCY, a separate legal entitycreated pursuant to an interstate compact between the Stateof California and Nevada; Voting Members of the GoverningBody of the Tahoe Regional Planning Agency, including TonyClark, Chester A....
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ORDER RE SANCTIONS AGAINST STEPHEN YAGMAN I. Introduction This Court has issued three Orders to Show Cause re sanctions against Stephen Yagman, an attorney representing himself, based on papers he filed in connection with his motion to recuse Chief Judge Real in the matter of Stephen Yagman v. Republic Insurance, CV 91-423-R. Yagman, now represented by counsel, filed a response on April 11, 1991 ...
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ORDER AND OPINION GRANTING SUMMARY JUDGMENT FOR PLAINTIFFS Plaintiffs in these two cases, the Associated Builders and Contractors (“ABC”) and the Chamber of Commerce of the United States (“Chamber”), challenge resolutions passed by the cities of San Bruno and South San Francisco (“Cities”) and an ordinance passed by Contra Costa County (“County”). The Building and Construction Trades Coun...
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ORDER RE MOTION TO DISMISS SECOND AMENDED CONSOLIDATED COMPLAINT I. Introduction This matter is presently before the court on defendants’ motion to dismiss plaintiffs’ Second Amended Consolidated Class Action Complaint (“Complaint”), filed on November 2, 1990. Plaintiffs’ Complaint is a class action 1 on behalf of those who bought the stock of Adobe Systems, I...
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765 F. Supp. 1429 (1991) COOPER DEVELOPMENT COMPANY, Plaintiff, v. EMPLOYERS INSURANCE OF WAUSAU, a Mutual Company, and Transcontinental Insurance Company, Defendants. No. C 90-1330 SC. United States District Court, N.D. California. April 16, 1991. *1430 Paul A. Zevnik, Michel Y. Horton, Kaye, Scholer, Fierman, Hayes & Handler, Los Angeles, Cal. and Christopher H. Marraro and John G. Bickerma...
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939 F.2d 696 21 Envtl. L. Rep. 21,376 LEROY LAND DEVELOPMENT, a Nevada Corporation, Plaintiff-Appellee.v.The TAHOE REGIONAL PLANNING AGENCY, a separate legal entitycreated pursuant to an interstate Compact betweenthe States of California and Nevada, etal., Defendant-Appellant. No. 90-15364. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 16, 1991.Decided ...
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Sierra Lake, a mobile home park owner, alleges that the City of Rocklin’s rent control ordinances had effected a taking of its property without just compensation; plaintiff also complains of due process and equal protection violations in connection with the passage and implementation of the ordinances. We consider whether plaintiff’s taking claim is ripe for adjudication in federal court despite i...
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938 F.2d 158 Aaron K. AKIONA; Adam Baker; Bonnie Baker; Edward W.Moore, III, Plaintiffs-Appellees,v.UNITED STATES of America; Secretary of Defense,Defendants-Appellants.Aaron K. AKIONA, Plaintiff-Appellant,v.UNITED STATES of America; Secretary of Defense; and JohnDoes 1-25, Defendants-Appellees.Adam BAKER; Bonnie Baker; Edward W. Moore, III,Plaintiffs-Appellants,v.UNITED STATES of Amer...
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Frederick Martin requested a downward departure from the guideline sentencing range because of his participation in a post-arrest, pre-sentencing drug rehabilitation program. He also asked the district court to allow his sentence to be served in a drug rehabilitation facility instead of prison. The court declined to depart on the ground it lacked power to do so. We agree and affirm. I Martin ...
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Appellants Gabriel Hernandez, Gustavo Torres and Jose Landa appeal their conviction for trafficking in cocaine. They claim that because a fourth codefendant acted as a government informant throughout the planning stages of a joint defense, the United States invaded their attorney-client relationship and thus violated their Sixth Amendment rights. In addition, they appeal the denial of a motion to...
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Opinion Mark Lynn Rippberger and his wife Susan Edna Middleton appeal from a conviction of felony child endangerment. The conviction was based on the death of appellants’ eight-month-old daughter, caused by bacterial meningitis after a fifteen-day illness during which appellants withheld medical attention and treatment on the basis of their beliefs as Christian Scientists. We affirm the judgmen...
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This is an appeal from a Benefits Review Board (BRB) decision awarding claimant Mae Barnes benefits pursuant to the Long-shore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. § 901 et seq. The BRB determined that General Ship Service was liable for the benefits as the last responsible employer and that Liberty Mutual was the responsible insurance carrier. General Ship Service and Liberty ...
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Sam and Charlotte Giebelhaus appeal from the district court’s order denying their motion for Fed.R.Civ.P. 11 sanctions against attorney Lawrence Kaye. Kaye represented World Trader Yachts, Inc., John Roberts, and Elizabeth Roberts, named defendants in the Giebelhauses’ suit asserting ownership of a yacht named “Bonus Baby”. This court has jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm...
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This is an appeal from the Supreme Court of the Commonwealth of the Northern Mariana Islands (“CNMI”) pursuant to 48 U.S.C. § 1694c(a). Appellant Rita C. Sabían and other members of her family filed this action in the trial court of the CNMI to quiet title against Guadalupe Manglona. Appellants alleged ownership of two parcels of land located on the Island of Saipan. They contended that Manglo-na...
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Howard Inafuku appeals from the sentence which was imposed following his plea of guilty to multiple crimes involving methamphetamine, as well as failure to file income tax returns. The principal issue on appeal concerns imposition of the minimum ten-year sentence required pursuant to 21 U.S.C. § 841(b)(1). The sentence was imposed because the amount of methamphetamine mixture involved in the rele...
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Appellants Luis S. Lemos, Gregory Max-ie and Paul Ward, prison guards at San Quentin, appeal the district court’s denial of their motion for summary judgment on the basis of qualified immunity. Scott Felix, a prisoner at San Quentin, brought a civil rights action against the guards alleging that the guards used excessive force against him in March 1985. The guards assert that they are entitled to...
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In 1981, Congress enacted the “lump sum” rule that rendered recipients of Aid to Families with Dependent Children (“AFDC”) ineligible for AFDC benefits for a period of time after they receive a lump sum of money from outside sources. 42 U.S.C. § 602(a)(17). This appeal challenges Oregon’s application of that lump-sum rule to its Medicaid program. Brenda Smith and her children were receiving AFDC b...
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In this Freedom of Information Act (FOIA) case, the government appeals the district court’s grant of summary judgment and injunctive relief. The court ordered the San Francisco District Office of the *1007 Immigration & Naturalization Service (INS) to respond to aliens’ FOIA requests within statutory time-limits and ordered the INS (nationally) to give due consideration for priorit...
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938 F.2d 1009 138 L.R.R.M. (BNA) 2041 EMPLOYEES OF the BUTTE, ANACONDA & PACIFIC RAILWAY COMPANY,represented by Brotherhood of Maintenance of WayEmployees, Brotherhood of Airline Clerksand Brotherhood of RailwayCarmen, Petitioner,v.UNITED STATES of America; Interstate Commerce Commission;Respondents,Butte, Anaconda & Pacific Railway Company (BA & P)Respondent-Intervenor.EMPLOY...
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Gerald Caperell appeals his conviction and sentence for engaging in a continuing criminal enterprise in violation of 21 U.S.C. §§ 848(b)(1) and (b)(2)(A). Caperell presents three arguments on appeal: (1) the indictment failed to state an offense; (2) the government breached the plea agreement; and (3) the sentencing court violated Caperell’s due process rights. We reject these challenges and af...
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Opinion Introduction In this case we determine whether the Department of Corrections (Department) can limit certain publicly paid chaplaincy positions to persons ordained, accredited by and in good standing with the Roman Catholic Church without violating the establishment clause, the equal protection clause, or article I, sections 4, 7 and 8 of the California Constitution. We hold that it can. F...
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Opinion Wayne Gann (Gann) and Gann Investments, Inc. (GII) appeal from judgment of dismissal pursuant to Code of Civil Procedure section 631.8, subdivision (a). 1 They contend that the trial court erred in failing to relieve them of their waiver of jury trial and in applying the wrong standard in determining the nonexistence of broker-principal relationship between Williams Bro...
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MEMORANDUM AND ORDER Plaintiff seeks a declaratory judgment that its videotape performance system does not violate defendants’ copyright. Defendants counterclaim for copyright infringement, alleging that plaintiff’s system infringes on their exclusive right to publicly perform their motion pictures. The system, which plaintiff installs and operates, allows a hotel to offer its guests the ...
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MEMOEANDUM AND OEDEE Petitioner James Hudson, a state prisoner, pled guilty in Marin County Superior Court to two counts of rape, one count of oral copulation, one count of attempted murder in the second degree, and one count of kidnapping. He was sentenced to state prison for a term of twenty-five years.1 Petitioner seeks habeas corpus relief from this Court, pursuant to 28 U.S.C. § "2254, on the...
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232 Cal. App. 3d 32 (1991) 283 Cal. Rptr. 271 ELIAS S. OLVERA, SR., et al., Plaintiffs and Appellants, v. PAULA D. OLVERA, Defendant and Respondent. Docket No. E008113. Court of Appeals of California, Fourth District, Division Two. July 9, 1991. *34 COUNSEL Harold M. Fagin for Plaintiffs and Appellants. David P. Weilbacher for Defendant and Respondent. [Opinion certified for partial publication.[...
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MEMORANDUM AND ORDER This case arises out of the failure of the First Security Savings Bank (“First Security”). Defendant Irving Loube was director, chairman, and one of the shareholders of First Security. On July 21,1988, the Federal Home Loan Bank Board appointed the Federal Savings and Loan Insurance Corporation (“FSLIC”) as receiver for First Security. FSLIC-Receiver then assigned all claims ...
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ORDER DENYING DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ STATE LAW CLAIM FOR NEGLIGENT MISREPRESENTATION AND DENYING DEFENDANTS’ MOTION TO STRIKE PARAGRAPHS 29 AND 38 OF PLAINTIFFS’ FIRST AMENDED COMPLAINT Defendants move to dismiss count III and to strike paragraphs 29 and 38 of the first amended complaint. Because count III of the complaint states a valid claim for negligent misrepresent...
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MEMORANDUM OPINION AND ORDER GRANTING MOTION TO LIFT STAY; GRANTING IN PART AND DENYING IN PART MOTION TO AMEND; GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS The above captioned matter came on for hearing on February 19, 1991, before the Honorable Rudi M. Brewster. Upon consideration of plaintiffs’ Motion to Lift Stay of Proceedings, plaintiffs’ Motion to Amend, and defendants’ ...
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MEMORANDUM AND ORDER This matter is related to Chi Shun Hua Steel Co. v. Crest Tankers, C-89-2905 SAW, 1990 WL 265970, which was tried to a jury in this Court. Paul Novelly, the defendant in this case, is the President of Crest Tankers and was not a party to the suit against Crest Tankers. Plaintiff charges Mr. Novelly with fraud and deceit for directing and authorizing the fraudulent breach ...
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Jaime Figueroa-Soto (Figueroa) makes an interlocutory appeal from an order of the district court holding that his federal prosecution for narcotics offenses does not place him in double jeopardy. We affirm. JURISDICTION Jurisdiction for this interlocutory appeal from a ruling on double jeopardy lies with this court. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)....
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J. Franklin Kemp pleaded guilty to an information charging him with bank robbery. At sentencing, the district court assessed Kemp two criminal history points for two prior convictions for “domestic violence.” The court sentenced Kemp to forty-six months in prison. Kemp appeals his sentence. We vacate Kemp’s sentence and remand for resentencing. FACTS AND PROCEDURE Kemp was charged with two co...
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ORDER AWARDING ATTORNEY FEES This medical malpractice case has been remanded to state court. Plaintiffs move for an award of attorney fees pursuant to 28 U.S.C. Section 1447(c). As amended in November 1988, § 1447(c) provides: “An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” This order is...
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938 F.2d 959 Blanca Rosa ECHEVERRIA-HERNANDEZ, Petitioner,v.U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 89-70236. United States Court of Appeals,Ninth Circuit. July 9, 1991. Prior report: 923 F.2d 688. Before WALLACE, Chief Judge, BROWNING, HUG, TANG, SCHROEDER, FLETCHER, FARRIS, PREGERSON, ALARCON, POOLE, D.W. NELSON, CANBY, NORRIS, REINHARDT, BE...
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Opinion —Merrill D. Bodily and Tawna Bodily appeal from a denial of their motion for attorney’s fees. We reverse with directions. *85 Facts Respondent Rainier National Bank (Rainier) obtained a judgment in the State of Washington against the Bodilys on the basis that they were guarantors of a promissory note. The Washington judgment was entered on May 12,1988, and provided for principal...
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Opinion —Defendant/appellant Union Oil Company of California, doing business as Unocal, appeals a judgment by the trial court declaring its petroleum franchise transfer policy in violation of Business and Professions Code section 21148, 1 and enjoining its further execution. Procedural History and Facts Unocal is a California corporation engaged in the business of ref...
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938 F.2d 1032 Jerry Bert BRAUN, Petitioner-Appellant,v.Roger F. SCOTT, Warden, Respondent-Appellee. No. 89-15726. United States Court of Appeals,Ninth Circuit. Argued and Submitted En Banc June 20, 1991.Decided July 12, 1991. Mary E. Berkheiser, Meyer, Hendricks, Victor, Osborn & Maledon, Phoenix, Ariz., for petitioner-appellant. Joseph Douglas Wilson, U.S. Dep...
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Plaintiffs are mushroom enthusiasts who became severely ill from picking and eating mushrooms after relying on information in The Encyclopedia of Mushrooms, a book published by the defendant. Plaintiffs sued the publisher and sought damages under various theories. The district court granted summary judgment for the defendant. We affirm. *1034 I. FACTS AND PROCEED...
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Opinion Appellant Rouben Khalatian, M.D., appeals from an order denying his petition to stay further proceedings and compel arbitration of the medical malpractice action instituted by respondents Inez Chavez, Jose Bolanos 1 and their child Tatiana Bolanos. In the malpractice action, it is alleged that negligent care was rendered to Inez Chavez prior to and during delivery of her child, Tatian...
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*108 Opinion —Since January 1990, John Luckett has filed at least 43 different appeals or writ petitions in this court while acting in propria persona. After due notice and an opportunity to be heard, the court has determined he is a vexatious litigant within the meaning of Code of Civil Procedure section 391, subdivision (b)(3), in that he has “repeatedly [filed] unmeritorious motions, plead...
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232 Cal.App.3d 112 (1991) 283 Cal. Rptr. 33 INTERNATIONAL JET SKI BOATING ASSOCIATION, INC., Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; TONY PARKER, Real Party in Interest. Docket No. G010381. Court of Appeals of California, Fourth District, Division Three. June 24, 1991. *113 COUNSEL Hill, Genson, Even, Crandall & Wade and Janet M. Oldfield for Petitioner. Terry C. Andrus, C...
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Opinion —Appellant Robert E. Overend was retired for disability as a “state miscellaneous” member of the Public Employees Retirement System (PERS). He subsequently sought reclassification as a “state safety” member. (Gov. Code, § 20013, subd. (b).) Respondent Board of Administration of PERS determined that appellant was properly classified as a miscellaneous member and not entitled to safety membe...
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ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION This is an action brought by the United States on behalf of the U.S. Army Corps of Engineers (“Corps”) against Joseph A. Zanger, individually and doing business as Casa De Fruta, seeking injunctive and civil penalties for violations of the Clean Water *1032 Act, 33 U.S.C. § 1251 et seq. Specifically, defendants are charg...
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MEMORANDUM AND ORDER (AMENDED) I. BACKGROUND Western World Insurance Co. (“Western”) filed this action for declaratory relief on November 5, 1990 seeking declarations that it owes no duties of defense or indemnity to any defendant with respect to two liability insurance policies it issued to defendants Clifford and Dora Dana (“the Da-nas”) for property located in Collinsville, Califo...
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DECISIONS AND ORDERS RE MOTION TO DISMISS AND MOTIONS FOR PARTIAL SUMMARY JUDGMENT On November 28, 1988 the court heard defendant’s Motion for Order Dismissing Intervenor’s Complaint and plaintiff and intervenor’s respective Motions for Partial Summary Judgment. Upon due consideration of the written and oral arguments of the parties and the record herein, the court denies defendant’s moti...
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ORDER Order re Partial Summary Judgment; order re Motion-in-Limine (use of regulations); order re jury instruction on qualified immunity. INTRODUCTION This civil rights action arises under 42 U.S.C. § 1983. Plaintiff alleges that defendant used excessive force against her while she was incarcerated. Specifically, plaintiff alleges that defendant, Lt. Robert Ayers, used unnecessa...
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Opinion —The defendant and appellant Southern California Edison Company (Edison) appeals a judgment entered in favor of the plaintiff and respondent Anthony Mancuso following the trial court’s summary adjudication of the issue of liability and a jury verdict as to damages. Plaintiff’s damages arose from the destruction of his business by a fire caused by an excessive amount of electrical ...
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Opinion —Discrimination based on characteristics such as race, sex, age, and religion is repugnant in any form. Nevertheless, purely private clubs are free to engage in such discrimination. However, members of private discriminatory clubs may not deduct club-related business expenses on their state income tax returns. The Franchise Tax Board seeks disclosure of a private club’s membership...
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*161 Opinion —Stanley Walsh, M.D., and Southwestern Corporation Medical Group, a corporation, appeal from the dismissal of their cross-complaint for spoliation of evidence following the sustaining of a demurrer without leave to amend. Appellants are defendants in an action for wrongful death arising from alleged medical malpractice. The wrongful death complaint was filed by ...
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*677 ORDER The memorandum disposition filed April 11, 1991, 930 F.2d 26, is hereby withdrawn and the opinion sent to file this date substituted in its place. Appellant’s petition for rehearing filed April 25, 1991 is denied. The Clerk shall hold the mandate for twenty-one days from the date of this order. OPINION Plaintiff Austin, d.b.a. Austin Roofing, appeals the dismissal of his 42 U...
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938 F.2d 1045 JAMA CONSTRUCTION, Plaintiff-Appellant,v.CITY OF LOS ANGELES; Board of Building and SafetyCommissioners of the City of Los Angeles; Department ofBuilding and Safety of the City of Los Angeles; CityCouncil of the City of Los Angeles, Defendants-Appellees. No. 90-55475. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 16, 1991.Decided July 15, 1...
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Opinion —Plaintiff United Services Automobile Association (USAA) brought this declaratory relief action against defendant Ann Dalrymple to resolve a coverage dispute concerning Dalrymple’s renter’s insurance policy. Dalrymple cross-complained alleging that USAA’s denial of coverage was in bad faith. Significantly, the cross-complaint was severed and the declaratory relief action proceeded...
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*1258Opinion —We review the recommendation of the Hearing Department of the State Bar Court that petitioner, Jay P. Colangelo (petitioner), be suspended from the practice of law for one year upon certain conditions and that the suspension be stayed, with probation of eighteen months but no period of actual suspension. Petitioner requests that we either review the decision of the State Bar Court or...
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232 Cal.App.3d 147 (1991) 283 Cal. Rptr. 422 THE PEOPLE, Plaintiff and Respondent, v. STEVEN RAMON TUGGLE, Defendant and Appellant. Docket No. A048701. Court of Appeals of California, First District, Division Two. July 12, 1991. *148 COUNSEL Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant. *149 John K. Van de Kamp, Attorney General, and Frances Marie Dogan, De...
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Opinion —Merrill L. Kirkpatrick and Rosanna F. Kirkpatrick (Kirkpatricks), husband and wife owners of an Oceanside mobilehome park named Laguna Vista Mobile Estates, appeal from an order dismissing this action after the trial court sustained without leave to amend general demurrers brought by the State of California (State) and the City of Oceanside (City) to Kirkpatricks’ complaint for i...
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OPINION I. OVERVIEW Appellant South Coast Plaza appeals the bankruptcy court determination that Bankruptcy Code section 365(f), 11 U.S.C. § 365(f), preempts a provision in a retail lease that might otherwise be valid under *201 state law. Appellant argues that the bankruptcy court erred by not determining whether the estate owned the appreciated value of the leaseho...
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Opinion —Michael Brito appeals a judgment of convictions of robbery (Pen. Code, 2 § 211), attempted murder, with a finding of premeditation and deliberation (§§ 664,187, subd. (a)), and assault with a firearm (§ 245, subd. (a)(2)). He asserts the court erred by (1) failing to instruct on attempted involuntary manslaughter as a lesser included offense; (2) refusing to instruct o...
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MEMORANDUM DECISION AND ORDER On November 13, 1990, plaintiffs’ motion to amend complaints and for partial summary judgment, defendant National Steel and Shipbuilding Company’s (“NASSCO”) motion to dismiss amended cross claims, and defendant Cleveland Machine Controls’ (“CMC”) motion for leave of court to file counterclaims and cross-claims came on for hearing before the Honorable Earl B. Gilliam...
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Opinion —George Eugene Armstrong appeals from a judgment of conviction following a jury verdict finding him guilty of possession of cocaine. (Health & Saf. Code, § 11350.) He claims his conviction must be reversed because the trial court erred when it denied his Penal Code section 995 (section 995) motion. Appellant also maintains the trial court improperly denied his request for probatio...
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Opinion I Introduction This case involves a purported roadway easement (easement) which the King family alleges exists in favor of the Kng family over land owned by the Mikels family in the City of Rancho Cucamonga. The Mikelses bought the land in question (Parcel No. 1) from Richwood Development Inc., which had apparently acquired it from the Desimones, who had purchased it fro...
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939 F.2d 717 137 L.R.R.M. (BNA) 2942, 119 Lab.Cas. P 10,860,20 Fed.R.Serv.3d 211 NAPILI SHORES CONDOMINIUM HOMEOWNERS' ASSOCIATION and NapiliShores Rental Program, Petitioners,v.NATIONAL LABOR RELATIONS BOARD, Respondent.NATIONAL LABOR RELATIONS BOARD, Petitioner,v.COLONY RESORTS, INC., d/b/a Napili Shores Resort, Respondent. Nos. 89-70099, 89-70180. United States Court of Appeals...
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Gerald Mark Williams was convicted by a jury of two counts of possession of cocaine with intent to distribute. See 21 U.S.C. § 841(a)(1) (1988). Although Williams himself placed his prior narcotics conviction before the jury during direct examination, he challenges the district court’s in limine ruling that evidence of the conviction would be admissible under Fed.R.Evid. 609(a)(1) if offered ...
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Appellant Collazo was arrested for murder and advised of his Miranda rights. He declined to waive them, asking instead to talk to a lawyer. The police responded to his request by telling Collazo it “might be worse” for him if he talked to an attorney, and that it was in his interest to talk to them without one. Three hours later, he “changed his mind,” was readvised of his rights, and talked to th...
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232 Cal.App.3d 307 (1991) 283 Cal. Rptr. 447 ARTURO LOPEZ, Plaintiff and Appellant, v. CIVIL SERVICE COMMISSION OF THE CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents. Docket No. A050164. Court of Appeals of California, First District, Division Two. July 16, 1991. *310 COUNSEL Davis, Cowell & Bowe, Philip Paul Bowe and Richard G. McCracken for Plaintiff and Appellant. Louise H...
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232 Cal. App. 3d 395 (1991) 283 Cal. Rptr. 668 DIANNE YOUNGWORTH et al., Plaintiffs and Appellants, v. JENNIFER STARK et al., Defendants and Respondents. Docket No. A051761. Court of Appeals of California, First District, Division Five. July 18, 1991. *397 COUNSEL John Wm. Cumming for Plaintiffs and Appellants. Mitchell, Dedekam & Angell and John M. Vrieze for Defendants and Respondents. *398...
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Opinion —Defendants North Coast Business Park and Michael I. Crain (together North Coast) appeal a judgment confirming a Labor Commissioner’s award in favor of plaintiff Vickie J. Clavell after the superior *330 court denied as untimely North Coast’s request for a trial de novo. The sole issue on appeal is whether the 1988 amendment to Labor Code section 98.2 allows an additional five days to...
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Opinion —Defendant was convicted by a jury of second degree murder. He seeks reversal based on alleged instructional errors and abuse of discretion in admitting photographs of the victim’s corpse. We find no merit in these arguments and, therefore, affirm the conviction. Facts Defendant and the victim, apparently, were members of rival gangs. At about 11:30 one night defendant found the vic...
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Meridian International Logistics, Inc. (“Meridian”), appeals from the district court’s order dismissing its complaint for lack of subject matter jurisdiction. Meridian originally brought this libel and slander action against Thomas Gates, an agent with the Federal Bureau of Investigation. After the United States Attorney certified that Gates was acting within the scope of his FBI employment in tak...
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939 F.2d 727 20 Fed.R.Serv.3d 813 Maria-Kelly F. YNIGUEZ; Jaime P. Gutierrez, Plaintiffs,v.STATE OF ARIZONA, Defendant-Appellee.Robert D. Parks; Arizonans for Official English, Applicantsin intervention-Appellants.Maria-Kelly F. YNIGUEZ; Jaime P. Gutierrez, Plaintiffs-Appellees,v.Rose MOFFORD, individually and as Governor of the State ofArizona; Robert Corbin, individually and asAttorn...
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INTRODUCTION On May 30, 1989, the United States Equal Employment Opportunity Commission (“EEOC”) filed a complaint seeking an ex parte temporary restraining order and a preliminary injunction prohibiting Recruit, U.S.A., Inc. (“Recruit”), and Transworld Recruit, Inc. (d.b.a. Interplace) (“Inter-place”) from destroying, altering, or removing beyond the territorial limits of the United States certai...
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—I concur in the judgment, but write separately to express dissatisfaction with the reasoning contained in the lead opinion under subparagraph I of the Discussion pertaining to third party liability of the broker for the tortious acts of an independent property appraiser. I am of the opinion that there was sufficient evidence (slight) before the trier of fact to entitle appellant to the requested ...
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232 Cal.App.3d 408 (1991) 283 Cal. Rptr. 688 ELYSIUM INSTITUTE, INC., et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents. Docket No. B031797. Court of Appeals of California, Second District, Division Seven. July 18, 1991. *416 COUNSEL Stephen F. Rohde and Gregory T. Victoroff for Plaintiffs and Appellants. De Witt W Clinton, County Counsel, and Karen A....
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Opinion —Defendants City of Burbank, Michael R. Hastings, in his capacity as Mayor of Burbank, and Robert Bowne, Al Dossin, Mary Lou Howard, and Mary Kelsey, in their capacity as members of the Burbank City Council (herein referred to as City), appeal from an order awarding plaintiffs attorneys’ fees of $18,700 pursuant to Code of Civil Procedure section 1021.5. Plaintiffs Kathleen Angelheart, No...
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*489Opinion —In this case we hold a $48-per-year registration fee imposed on rent controlled units does not necessarily deprive landlords of their constitutionally guaranteed “just and reasonable rate of return.” Accordingly, we affirm the trial court’s rejection of a facial constitutional challenge to that fee. Statement of Facts and Proceedings Below In September 1985, the newly created City of ...
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Opinion Introduction In this insurance coverage dispute, George and Diana Messinger (the Messingers) appeal from a summary judgment in favor of State Farm. This dispute arose out of a two-car collision after the Messingers sought to recover under their automobile underinsurance policy with State Farm payment of damages not covered by the tortfeasor’s liability policy. The Messingers ...
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ORDER I. Introduction Plaintiffs move this Court to facilitate notice to a proposed class of opt-in plaintiffs by approving the form of the Age Discrimination in Employment Act (“ADEA”) plaintiffs’ notice of their ADEA claim, authorizing the mailing of the notice to members of Subclass C, and ordering defendants to produce the names and addresses of Subclass C members so that notice may be sent. ...
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232 Cal. App. 3d 378 (1991) 283 Cal. Rptr. 452 THE PEOPLE, Plaintiff and Respondent, v. DAVID ALLEN BORAGNO, Defendant and Appellant. In re DAVID ALLEN BORAGNO on Habeas Corpus. Docket Nos. F013523, F014771. Court of Appeals of California, Fifth District. July 17, 1991. *381 COUNSEL Eric M. Weaver, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp and Dani...
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Jesus Felix-Gutierrez appeals his conviction for being an accessory after the fact. *1203 Felix was charged with assisting Rafaelo Caro-Quintero, who allegedly participated in the kidnapping and murder of DEA Special Agent Enrique Camarena-Salazar and Alfredo Zavala, in his effort to avoid capture by law enforcement authorities. 1 Following a jury trial, Felix was convicted and sentenced to 1...
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Andre Brooks appeals a jury verdict in favor of the defendants on his 42 U.S.C. § 1983 claim. Brooks asserts that he was prejudiced by several erroneous jury instructions. He also appeals an award of attorneys’ fees, pursuant to 42 U.S.C. § 1988, to the prevailing defendants. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we reverse. I On January 14, 1985, Los Angeles County Sh...
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939 F.2d 1341 UNITED STATES of America, Plaintiff-Appellee,v.Rene Martin VERDUGO-URQUIDEZ, Defendant-Appellant. No. 88-5462.* United States Court of Appeals,Ninth Circuit. Argued Feb. 4, 1991.Submitted June 13, 1991.Decided July 22, 1991. Patrick Q. Hall, Goldberg, Frant & Hall, San Diego, Cal., for defendant-appellant. Robert L. Brosio, Asst. U.S. Atty., Chief...
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Opinion —Servando M., Sr., (Servando, Sr.) appeals from orders entered after a permanency planning hearing under Welfare and Institutions Code section 366.25 1 and a dispositional hearing under section 300. The orders concern his children, Servando, Jr., (born Sept. 9, 1981), Eric (born Aug. 22, 1982), Elizabeth (born Dec. 7, 1983), Daniel (born Oct. 11, 1985), Margaret (born N...
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941 F.2d 745 60 USLW 2112 UNITED STATES of America, Plaintiff-Appellee,v.Jose Jesus LIRA-BARRAZA, Defendant-Appellant. No. 88-5161. United States Court of Appeals,Ninth Circuit. Argued and Submitted En Banc Feb. 21, 1991.Decided July 22, 1991. Judy Clarke, Federal Defender of San Diego, San Diego, Cal., for defendant-appellant. Bruce R. Castetter, Asst. U.S. At...
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Opinion —The issue in this case is whether a defendant who is sued on a contract entitling a successful litigant to attorney’s fees under Civil Code 1 section 1717 may recover such fees where the plaintiff’s action is dismissed because it was not brought to trial within five years. Because we answer this question in the affirmative, we reverse the post-judgment order denying the motion of def...
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Opinion — A jury convicted Richard Robert Sering on two counts of robbery (Pen. Code, 1 § 211) and one weapon use enhance *682 ment (§ 12022, subd. (a)). 2 He received a total sentence of five years, less custody and time-served credits. Sering appeals, contending (1) the San Diego County Superior Court lacked territorial jurisdiction over the May 25 ro...
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232 Cal.App.3d 572 (1991) 283 Cal. Rptr. 732 In re COMPLEX ASBESTOS LITIGATION. FLOYD W. WIDGER et al., Plaintiffs and Appellants, v. OWENS-CORNING FIBERGLAS CORPORATION et al., Defendants and Appellants; GAF CORPORATION et al., Defendants and Respondents; JEFFREY B. HARRISON et al., Objectors and Appellants. [And eight other cases.][*] Docket No. A047921. Court of Appeals of California, First Di...
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Opinion —A traffic officer asked Robert Autry to step out of his car for a “patdown” search. Autry complied and the officer felt two objects which were similar to hypodermic needles and syringes. The officer removed the objects—which were indeed two hypodermic needles and syringes—and arrested Autry, who was later found to have cocaine on him. Autry now claims the officer did not have eno...
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Opinion —Appellant Adrienne Di Donato appeals from a judgment in favor of respondent Steven H. Santini, her former husband, in her action seeking damages for respondent’s alleged refusal to share the profits of joint business ventures and to accord appellant full title to a single-family residence. Appellant also appeals, as does Joshua Di Donato (her son from a prior relationship), from ...
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232 Cal.App.3d 755 (1991) 283 Cal. Rptr. 533 KENNETH SCHILD et al., Plaintiffs and Appellants, v. MICHAEL P. RUBIN, Defendant and Respondent. Docket No. B052727. Court of Appeals of California, Second District, Division Five. July 22, 1991. *757 COUNSEL Moser & Ostling and James L. Moser for Plaintiffs and Appellants. Michael P. Rubin, in pro. per., for Defendant and Respondent. OPINION BOREN...
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Edward Vinieratos charges the United States Air Force with employment discrimination and wrongful removal from his civilian job. More specifically, he challenges two Air Force decisions: the decision to discontinue providing certain “accommodations” for his alleged mental handicap and the subsequent decision to terminate his employment as an engineer. After filing a multitude of formal and informa...
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Theresa Bourassa appeals the district court’s judgment and order dismissing her action for lack of personal jurisdiction. Bourassa brought suit against Albert Des-rochers in the Central District of California for violations of federal securities laws and various pendent state claims. The district court dismissed for lack of personal jurisdiction on the ground that Desrochers did not have minimum ...
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940 F.2d 435 21 Envtl. L. Rep. 21,237 HEADWATERS, INC., Plaintiff-Appellant,v.BUREAU OF LAND MANAGEMENT, MEDFORD DISTRICT; David A.Jones, District Manager, in his official capacity;Croman Corporation, Defendants-Appellees,Association of O & C Counties, Defendant-Intervenor-Appellee. No. 89-35688. United States Court of Appeals,Ninth Circuit. July 23, 1991. Todd ...
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We must decide whether ex parte submission of a memorandum by Commissioner’s counsel prior to trial in the tax court sufficiently prejudiced the trial judge’s disposition of the case to entitle taxpayers to a new trial before a different judge. I Taxpayers Kenneth and Marva Guen-ther, then married, filed joint federal income tax returns for 1978 and 1979. The Internal Revenue Service ...
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Appellants Carol Van Strum and Paul Merrell appeal the district court’s dismissal of their suit against a number of federal and county officials. Appellants assert that federal officials, acting in concert with officials of Lincoln County, Oregon, subjected appellants’ home to frequent and harassing helicopter and fixed-wing aircraft overflights in retaliation for appellants’ public opposition ...
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Opinion —Appellant Bradco International, Ltd. (Bradco) appeals from a judgment entered on a jury verdict in favor of Robert J. Horn (Horn). The jury, finding Bradco had breached an implied employment contract with Horn by terminating him, awarded Horn $464,269 in damages for lost salary and benefits, both past and future, plus $55,000 for additional consequential damages. Finding also tha...
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Opinion Introduction The City of Chico and its chief of police, U. F. Bullerjahn, challenge a judgment that Chico police officer Terry Moore engaged in speech protected under the First Amendment when he wrote an article in “The Centurion!” newsletter which characterized police department management personnel as the chief’s “lackeys.” “The Centurion!” is a publication “Expressing the Thoughts ...
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232 Cal. App. 3d 776 (1991) 283 Cal. Rptr. 546 DEPARTMENT OF HEALTH SERVICES, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; TORRANCE MEMORIAL HOSPITAL, Real Party in Interest. Docket No. B056132. Court of Appeals of California, Second District, Division Three. July 23, 1991. *777 COUNSEL Daniel E. Lungren, Attorney General, Charlton G. Holland, Assistant Attorney General, J...
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Opinion —Petitioners Laurence Powell, Theodore J. Briseno, Stacey C. Koon, and Timothy E. Wind (collectively defendants) are police officers charged with specific charges of assault by force likely to produce great bodily injury and with a deadly weapon (Pen. Code, §§ 245, subd. (a)(1), 12022, subd. (a)(2), 1192.7, subd. (c)(8), 1203, subd. (e)(3)); 1 and an officer unnecessarily assaulting o...
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Opinion —This appeal involves the right to sell property under a deed of trust after the borrower’s default. We must determine whether a beneficiary with actual knowledge of facts materially affecting the value of property has a duty to disclose those facts to prospective bidders at a trustee’s sale. George A. and Anastasios A. Karoutas (the Karoutases) were successful bidders at a truste...
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—I dissent. To support its holding that a governor’s appointment calendars and schedules are exempt from disclosure, the majority relies primarily on the deliberative process privilege. Because the requested documents reveal the identity of those with whom a governor has met, the majority reasons that their disclosure would reveal “the substance or direction of the Governor’s judgment and mental p...
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Santee Kimes was convicted of various counts of involuntary servitude, transportation of illegal aliens, conspiracy, aiding and abetting and escape. She now appeals the district court’s order denying her post-conviction motion to vacate that conviction under 28 U.S.C. § 2255. Her most important contention is that, because of a change in the interpretation of 18 U.S.C. § 1584, which prohibits hold...
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AMENDED ORDER Taxpayers Rafael Carrillo-Barron and Norma Fregoso Carrillo (“the Carrillos”) bring this motion to dismiss the govern-*687merit’s appeal from the district court’s order denying the government’s motion to dismiss for lack of venue. Taxpayers also request attorneys’ fees pursuant to 26 U.S.C. § 7430. Appellees’ motion to dismiss is granted, and the request for attorneys’ fees is denied...
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Santos Luis Serrano appeals his conviction for possession with intent to distribute cocaine based on several alleged sentencing errors. Because it is unclear whether the district court accepted the sentence term of Serrano’s plea agreement, we remand for further proceedings consistent with this opinion. BACKGROUND Serrano was indicted of various drug-related charges. He agreed to plead guil...
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Opinion —We granted review to determine whether, in a proceeding brought by the district attorney for modification of a child support order and determination of arrearages, the trial court may allocate to the noncustodial parent the dependency deduction for state and federal tax purposes. We hold that the allocation was proper. I. Facts The essential facts are undisputed. Respondent Robin Joseph ...
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Opinion PIaintiff/appellant Marshall Mars (appellant) appeals from the judgment entered upon the granting of the motion for summary judgment of defendant/respondent Wedbush Morgan Securities, Inc. (respondent). 1 Appellant had sued First United Securities Group (First United); respondent; and Dennis Kantor, First United’s owner, in an attempt to recover investment losses appell...
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Opinion —This appeal concerns whether the pendency of a federal tort claim for personal injuries against the United States government tolls the statute of limitations applicable to a state action against a defendant who was not a government employee and who was dismissed from a subsequent federal action because the federal court did not have jurisdiction over him. Under the circumstances of thi...
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53 Cal.3d 1289 (1991) 812 P.2d 563 283 Cal. Rptr. 382 THE PEOPLE, Plaintiff and Respondent, v. BRUCE McALPIN, Defendant and Appellant. Docket No. S010577. Supreme Court of California. July 18, 1991. *1294 COUNSEL Campbell & Demetrick, James Farragher Campbell and Linda Lee DeMetrick for Defendant and Appellant. John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Steve White and Rich...
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940 F.2d 437 37 Cont.Cas.Fed. (CCH) 76,149 GARTRELL CONSTRUCTION INCORPORATED, a Californiacorporation, Plaintiff-Appellee,v.Lloyd AUBRY, Chief, Division of Labor Standards Enforcement,Department of Industrial Relations, State ofCalifornia, Defendants-Appellants. No. 90-15190. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 14, 1991.Decided July 25, 1991...
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Texaco appeals summary judgment in favor of William R. Ponsoldt on multiple claims arising out of an unconsummated land sale. After Ponsoldt failed to close escrow on a ranch located in Santa Barbara, California that he had contracted to purchase, Texaco sued for declaratory relief and specific performance. Failed settlement talks led to a second suit by Texaco for breach of the settlement agre...
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California Electric Company sued several of its former union employees for state law tort claims arising from the employees’ voluntarily quitting employment. The district court dismissed the claims as preempted under federal labor law. We affirm. FACTUAL BACKGROUND The parties stipulated to the following facts before the district court. From approximately 1950 till October 1986, California Electri...
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Opinion —By the refiling of a mandate petition, which was summarily denied by this court upon its initial filing, a felony defendant asks this court to reconsider his challenge to the denial of his speedy trial motion. Because this court viewed defendant’s first petition to be totally without merit, and viewed the refiling of the petition with one additional exhibit to *807 ...
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232 Cal. App. 3d 708 (1991) 283 Cal. Rptr. 764 INA RUTH PERKINS, Plaintiff and Appellant, v. TIMOTHY HOWARD, Defendant and Respondent. Docket No. A049833. Court of Appeals of California, First District, Division Four. July 22, 1991. *711 COUNSEL Kurahara & Morrissey, Michael T. Morrissey and Joseph R. Kafka for Plaintiff and Appellant. LaFollette, Johnson, DeHaas & Fesler, John L. Supple ...
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Opinion —Defendant Timothy Thushun McGee challenges the trial court’s authority to reconsider and to vacate its earlier ruling setting aside defendant’s guilty plea to sexual molestation of a child under age 14. (Pen. Code, § 288, subd. (a).) 1 We hold that the court may not reinstate a guilty plea without defendant’s acquiescence. The information charged defendant with se...
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Opinion —The Insurance Commissioner of the State of California (hereinafter the commissioner) appeals from a judgment of the *907 superior court declaring that certain provisions of Proposition 103, an initiative measure entitled the Insurance Rate Reduction and Reform Act, apply to automobile insurance policies issued under the California Automobile Assigned Risk Plan (hereinafter CAARP). (I...
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Opinion —In this case we hold that Government Code section 6259, subdivision (d), mandates an award of court costs and reasonable attorney fees to a plaintiff who prevails in litigation filed under the California Public Records Act. We further hold that the plaintiff has prevailed within the meaning of the statute when he or she files an action which results in defendant releasing a copy of a p...
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232 Cal. App. 3d 916 (1991) 283 Cal. Rptr. 815 J.L. THOMAS, INC., et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents. Docket No. B052176. Court of Appeals of California, Second District, Division Seven. July 25, 1991. *919 COUNSEL Joshua Kaplan for Plaintiffs and Appellants. De Witt W. Clinton, County Counsel, Charles J. Moore and Richard D. Weiss, Depu...
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The district court determined that venue was improper and dismissed a bankruptcy case with prejudice because the case had been filed in bad faith. The debtor appeals the dismissal on the ground that the district court reached issues not before it, incorrectly found facts rather than remanding to the bankruptcy court, erred in finding bad faith, and abused its discretion in dismissing the case with...
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The Crow Tribe enacted an ordinance establishing a commission to regulate railroads crossing the Crow Reservation. Burlington Northern Railroad (“BN”) sought a declaratory judgment in federal court invalidating the ordinance as exceeding tribal jurisdiction. The Tribe moved for dismissal for lack of jurisdiction, and the district court denied the motion. The district court later granted default...
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940 F.2d 442 UNITED STATES of America, Plaintiff-Appellee,v.Constantine WALKER, Defendant-Appellant. No. 90-10459. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 12, 1991.Decided July 26, 1991. Hayden Aluli, Asst. Federal Public Defender, Honolulu, Hawaii, for defendant-appellant. Leslie E. Osborne, Jr. and Michael Burke, Asst. U.S. Attys....
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Opinion —Thomas and Dorothea M., parents of Amy and Michael M., appeal orders adjudicating their children dependents of the juvenile court. They argue on appeal that insufficient efforts were made to prevent the need to remove the children from their home; that insufficient evidence supports juvenile court jurisdiction and out-of-home placement; that Amy was not competent to testify; and that they...
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Opinion —Robert Waldsmith, Sr., his son, and Coast Federal Savings and Loan Association, 1 the holder of the first trust deed and mortgage on Waldsmith’s building, appeal an adverse judgment, denying coverage under Waldsmith’s all-risk policy with State Farm Fire & Casualty Company. *695 I In December 1983, Waldsmith purchased rental dwelling insurance from S...
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Opinion —This in an appeal from an order setting apart a probate homestead pursuant to Probate Code section 6520.1 For reasons we shall explain, we reverse the order. *964Leonard Liccardo, an attorney, died on July 16, 1988, leaving his wife, Kathleen, who was eight months pregnant, and their two minor children. Liccardo also had four children from a previous marriage, all of whom were adults. On ...
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232 Cal. App. 3d 816 (1991) 283 Cal. Rptr. 551 LUNDEEN COATINGS CORPORATION, Plaintiff and Appellant, v. DEPARTMENT OF WATER AND POWER OF THE CITY OF LOS ANGELES, Defendant and Respondent. Docket No. B051503. Court of Appeals of California, Second District, Division Five. July 23, 1991. *822 COUNSEL Ralph E. Wiggen for Plaintiff and Appellant. James K. Hahn, City Attorney, Edward C. Farrell, Assi...
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Opinion —After a contested hearing, the juvenile court found true allegations that Charles C., age 17, committed rape in concert (Pen. Code, §§ 264.1, 261, subd. (2)), lewd and lascivious conduct (Pen. Code, § 288, subd. (a)) and unlawful intercourse (Pen. Code, § 261.5). The court found he came within the provisions of the Welfare and Institutions Code 1 section 602 and committed him to the ...
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*933 Opinion —Danny Calderon, Jr., became involved in a quarrel with Hiep Bui and another man near the handball courts at Memorial Park in Santa Ana. Calderon retrieved a shotgun from his car and shot at Bui four times. He missed Bui, but hit seven-year-old Felix Angel, who was playing five feet away. Angel suffered a broken arm and a skull fracture. Although he denied it, Calder...
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Opinion —In this tax refund action arising under the Motor Vehicle Fuel License Tax Law (Rev. & Tax. Code, § 7301 et seq.), the State Board of Equalization (Board) appeals from a judgment in favor of the taxpayer, Al-Sal Oil Company, Inc. (Al-Sal). The issue is whether Al-Sal was required to pay an excess gallonage tax—applicable to licensed distributors —on its retail sales of straight ...
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Phillip and Susan Fry brought this action against various officials of the Internal Revenue Service (IRS), a Special Assistant United States Attorney and other persons who were not federal officials, alleging violations of constitutional rights. Three IRS attorneys and one IRS revenue agent now appeal from the district court’s denial of their claim of qualified immunity. We reverse and remand w...
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940 F.2d 465 57 Empl. Prac. Dec. P 41,012 FEDERAL DEPOSIT INSURANCECORPORATION, as receiverfor Liberty Bank of Seattle, Plaintiff,v.Sim HENDERSON, et al., Defendants.J. Thomas WOOD; Barbara Wood, husband and wife, Defendants-Counter-Claimants-Plaintiffs-Appellants,v.Thomas OLDFIELD, Counter-Defendant-Appellee. No. 90-35499. United States Court of Appeals,Ninth Circuit. Argued ...
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The heirs of Marjorie A. Ek appeal the district court’s entry of summary judgment against them in their wrongful death action against the alleged tortfeasor’s employer. 738 F.Supp. 357. The alleged tortfeasor was an independent contractor. The district court had diversity jurisdiction, 28 U.S.C. § 1332, and the timely appeal is taken from a final order, 28 U.S.C. § 1291. Idaho law controls. We ...
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Jay Johnson appeals the district court’s dismissal of his title VII employment discrimination action against the United States Department of the Treasury for lack of prosecution. I At the time relevant to this appeal, Johnson was employed as a Labor Relations Specialist in the Los Angeles office of the United States Customs Service, an agency within the Treasury Department. On May 18,...
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939 F.2d 847 Therese ALEXANDER; Roy Alexander, Plaintiffs-Appellants,v.CIRCUS CIRCUS ENTERPRISES, INC., a corporation; EdgewaterHotel, Inc., a corporation; Colorado BelleCorporation, a corporation, Defendants-Appellees. No. 90-55452. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 10, 1991.Decided July 29, 1991. John A. Hyland, Jr., Long Beach, ...
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In this tax case, the United States appeals from a sanction pursuant to Fed.R.Civ.P. 11, requiring it to pay $1,000 to the Clerk of the District Court. The district court announced the sanction in a published opinion to serve as a public reprimand to the government attorney involved. Mattingly v. United States, 711 F.Supp. 1535 (D.Nev.1989). The conduct sanctioned was the filing of a...
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Gregory Schoon, Raymond Kennon, Jr., and Patricia Manning appeal their convictions for obstructing activities of the Internal Revenue Service Office in Tucson, Arizona, and failing to comply with an order of a federal police officer. Both charges stem from their activities in protest of United States involvement in El Salvador. They claim the district court improperly denied them a necessity defen...
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Having won a battle before the National Labor Relations Board (“NLRB”), Sea-Land Service, Inc. (“Sea-Land”) seeks to broaden the reach of its victory in its war with the International Longshoremen’s and Warehousemen’s Union (“ILWU” or “Union”). I A review of related prior skirmishes between Sea-Land and the ILWU is necessary to understand the present controversy. Sea-Land transports containerized ...
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Anthony Nathaniel Prator appeals from the sentence imposed by the district court following his plea of guilty to the crime of knowingly receiving a firearm after having been convicted of a crime punishable by imprisonment for a term exceeding one year, a violation of 18 U.S.C. § 922(g)(1). Prator contends that the district court erred in concluding that the reduction authorized by section 2K2.1...
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This case asks whether federal law regulating navigation, waterways, and harbors preempts and thus renders invalid a Santa Barbara city ordinance forbidding the anchoring or mooring of boats in a specified area during certain months of the year. The plaintiffs are owners of such boats and seek a judgment declaring the ordinance an invalid attempt by local government to regulate in an area preem...
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The California Men’s Colony, Unit II, Men’s Advisory Council (“the MAC”) appeals the district court’s denial of its motion pursuant to 28 U.S.C. § 1915(a) to proceed in forma pauperis in this civil rights action brought under 42 U.S.C. § 1983. The district court denied the motion on the ground that the appellant had not made an adequate showing of indigency as required by § 1915. The court also...
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Alfredo Martinez-Osuna and Gregorio de Jesus Mares appeal their convictions on a two-count indictment charging them with conspiracy to possess with intent to distribute and conspiracy to distribute 1002 grams of heroin (Count 1), and possession with intent to distribute and aiding and abetting the distribution of the heroin (Count 2). The indictment alleged that the appellants engaged in c...
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OPINION RE MOTION TO COMPEL AMENDMENT In 1988 Mary Ross (“Debtor”) filed a voluntary chapter 11 petition that was later converted to a chapter 7 case. Among Debtor’s claimed exemptions is an exemption for alimony and child support with a listed value of “unknown.” The Chapter 7 Trustee (“Trustee”) has moved for entry of an order to compel Debtor to amend her schedules to list a specific value...
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Opinion —Elizabeth Seykora, a Los Angeles County Deputy Public Defender, challenges an order of the respondent court imposing sanctions against her in the amount of $250, pursuant to Code of Civil Procedure section 177.5.1 *1078Facts and Procedural History On December 12, 1990, Seykora was the public defender’s calendar deputy assigned to Department 118, the courtroom presided over by Judge Regina...
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Opinion —Plaintiff/respondent Union Bank secured a summary judgment against defendants/appellants John B. Anderson, Yolo Petroleum, Henry H. Stone, and H. H. Stone & Sons. 1 Defendants filed timely appeals. On October 20, 1988, Union filed its first amended complaint for foreclosure of deeds of trust. The first cause of action alleged that Anderson and Stone defaulted on a...
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Opinion —In consolidated appeals, the Church of Scientology of California (the Church) and Mary Sue Hubbard (hereafter collectively plaintiffs) appeal from an order after appealable judgment unsealing the file in Church of Scientology of California v. Gerald Armstrong (No. B038975), and from the judgment entered in the case (No. B025920). We vacate the order and affi...
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Opinion —American Broadcasting Companies, Inc., KGO-TV, and Carol Ivy (appellants) appeal from a judgment entered against them in a defamation action brought by Michael J. Weller (Weller), Edgar W. Morse, and Argentum Antiques Ltd., Inc. (Argentum). The jury found that a series of broadcasts in February and March of 1984 concerning the origin and value of certain antique silver candelabra...
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*1051 Opinion —Defendant California State Board of Equalization (Board) appeals from the judgment for plaintiff Transamerica Occidental Life Insurance Company (TOLIC) entered after the trial court overruled the Board’s demurrer and granted TOLIC’s summary adjudication of issues motion. The sole issue on appeal is which of two tax rates in Revenue and Taxation Code section 12202 a...
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54 Cal.3d 26 (1991) 812 P.2d 931 283 Cal. Rptr. 584 JOHN E. DROEGER, Plaintiff and Appellant, v. FRIEDMAN, SLOAN & ROSS, Defendant and Respondent. Docket No. S014984. Supreme Court of California. July 29, 1991. *29 COUNSEL Cory A. Birnberg and William A. Reppy, Jr., for Plaintiff and Appellant. Friedman, Sloan & Ross, James A. Dorskind, Jeffrey S. Ross, Howard, Rice, Nemerovski, Canady, R...
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Opinion — Appellant Luna Records Corporation, Inc., appeals from an order of the Sonoma County Superior Court sustaining without leave to amend the demurrer of respondents Carlos E. J. Alvarado, California Broadcasting System, Marta Moreno Figueroa and Difusora del Valle, and granting respondents’ motion to strike the complaint because it was barred by the statute of limitations. 1...
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Eddie Lopez appeals pro se the district court’s sua sponte dismissal of his 42 U.S.C. § 1983 action. In his complaint, Lopez alleged that he was denied medical services because of his indigency. We review de novo, Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.1989), and vacate and remand. The district court’s sua sponte dismissal of an in forma pauperis complaint before service of process up...
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940 F.2d 499 68 A.F.T.R.2d 91-5330, 91-2 USTC P 50,478 Ralph J. MAISANO, III; Audrey D. Maisano, Plaintiffs-Appellants,v.Robert L. WELCHER; C. Jameson; Ms. Harrison, Individuallyand as agents of the IRS; Department of the Treasury;Internal Revenue Service; United States of America; RenoTow Service; John Does I-X; Jane Does I-X, Defendants-Appellees. No. 89-16004. United St...
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Robert Bolinger appeals his criminal sentence after pleading guilty to the charge of being a felon in possession of a firearm. Bolinger argues that the district court misapplied the sentencing guidelines and placed an impermissible condition on his supervised release. Bolinger’s negotiated plea agreement expressly waived his right to appeal the sentence pursuant to 18 U.S.C. § 3742. We hold the wa...
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dissenting in part: In pressing a legal doctrine to the limits of its logic, we sometimes reach a wholly incongruous result. When that incongruity amounts to a constitutional infirmity, we must reexamine the doctrine, or, at the very least, limit its reach so as to avoid the unconstitutional result. I After correctly disposing of Aichele’s substantive claims, the majority turns to his arguments th...
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941 F.2d 770 UNITED STATES of America, Plaintiff-Appellee,v.Frank Javier TAMEZ, Defendant-Appellant. No. 89-30320. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 7, 1991.Decided July 30, 1991. Howard N. Schwartz, Dauber, Bartheld & Schwartz, Yakima, Wash., for defendant-appellant. Donald E. Kresse, Asst. U.S. Atty., Yakima, Wash., for p...
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Ted Musacchio was found guilty of misapplication of funds in the care of Columbus Savings and Loan, and of causing a false statement to be made to the Federal Home Loan Bank Board. Musacchio appeals his convictions. He contends that the indictment charging him with misapplication was insufficiently specific to protect various rights guaranteed by the Fifth and Sixth Amendments. He further claim...
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Petitioners Preben Norgaard and Sandra Norgaard reported gambling winnings on their 1983 tax return. They also declared offsetting gambling losses on their tax return for that year. The Internal Revenue Service (“I.R.S.”) audited and disallowed the loss deductions. A deficiency notice for the tax owed was mailed to the Nor-gaards, as well as for a fraud penalty, and a penalty for substantial un...
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MEMORANDUM AND ORDER Plaintiffs bring this class action against defendant Lucky Stores, Inc. (“Lucky”) alleging employment discrimination on the basis of sex and race. The parties are now before the court on defendant’s motion to dismiss the pendent state law class claims under the Fair Employment and Housing Act, arguing that Cal.Gov’t Code § 12965(b) precludes such claims where comparable fed...
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MEMORANDUM AND ORDER The question presented in this case is whether the Fair Labor Standards Act of 1938 (“the FLSA”), 29 U.S.C. §§ 201 et seq., requires defendants to pay overtime compensation to plaintiffs for each hour spent “on-call” from December 1986 to the present. This action was brought by Gregory Berry, Philip Marcus, Dennis McAllis-ter, and Francis Oravetz, current a...
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Opinion I. Introduction Plaintiffs appeal from (1) an order of the Santa Clara Superior Court denying their motion to vacate dismissal with prejudice of their action against defendant, and (2) a subsequent judgment of the Santa Cruz Superior Court in favor of defendant based on the dismissal. Plaintiffs contend that their attorney’s dismissal of the action with prejudice was without their aut...
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Opinion —In this case we decide that failure of a plaintiff to make a return of summons or other proof of service within three years and sixty days after filing a complaint does not mandate dismissal of the action if the defendant made a general appearance within that time period. (Code Civ. Proc., §§ 583.210, subd. (b), 583.220, 583.250.) 1 Procedural Background On Augu...
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Opinion —In this case we hold that the 10-year time limit Code of Civil Procedure section 337.15 places on suits for latent defects in improvements to real property commences when the defendant’s work on the improvement is substantially completed, rather than when the improvement itself is substantially completed. The trial court here granted the motion of respondent, The Rust Engineering...
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Opinion Since the addition of the “home rule” provision to our Constitution in 1896, the organic law of California has granted charter cities *6 sovereignty over “municipal affairs.” Although this court and the Court of Appeal have parsed that cryptic phrase in literally scores of cases in the 95 years since the adoption of what is now article XI, section 5, subdivision (a) o...
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ORDER This matter comes before the Court upon the motion of defendant, United States of America, for judgment notwithstanding the verdict (“JNOV”). The parties tried this case to a jury. On March 5, 1991, the jury returned a special verdict in favor of plaintiff, California Farm Bureau Federation. The United States then moved for JNOV pursuant to Fed.R.Civ.P. 50(b). The United States...
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940 F.2d 1260 37 Cont.Cas.Fed. (CCH) 76,175 UNITED STATES for the Use of PALMER CONSTRUCTION, INC.,Plaintiff-Appellee,v.CAL STATE ELECTRIC, INC.; United Pacific Reliance InsuranceCompany, Defendants-Appellants. No. 90-55575. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 10, 1991.Decided July 31, 1991. Howard A. Allen, Evelyn R. Wiggins, De...
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940 F.2d 1247 UNITED STATES of America, Plaintiff-Appellee,v.Carlos Martinez MEDINA, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Rodimiro ROJAS-OQUITA, aka Rody, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.George Stephen AGUILAR-CORREA, aka El Grande, Defendant-Appellant. Nos. 89-10651, 89-10653 and 90-10002. United States Court of Appeals,...
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On January 26, 1987, a crane leased to Weyher/Livsey Constructors by Essex Crane Rental Corporation collapsed, fatally injuring an employee of Weyher/Livsey. The employee’s family initiated a wrongful death action in Idaho state court, naming Essex as one of the defendants. Essex filed this diversity action pursuant to 28 U.S.C. § 1332 (1988), seeking declaratory and other relief, including indem...
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Defendant Hanford Atomic Metal Trades Council (“the Union”) appeals from the district court’s grant of summary judgment in favor of plaintiff Westinghouse Hanford Company (“Westinghouse”) on Westinghouse’s action to stay arbitration and the Union’s counterclaim to compel arbitration. We reverse and remand for the district court to enter an order compelling arbitration. FACTS The Union...
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941 F.2d 778 20 Fed.R.Serv.3d 322 Mildred Louise BLAS, as Personal Representative of theEstate of John Marvin Blas, on her own behalf, andas Guardian for the Minor, Marvin JohnBorja, Plaintiff-Appellant,v.GOVERNMENT OF GUAM; Jose T. Charfauros, Individually and asDirector of the Department of Corrections; Fredrick B.Quinene, Individually and as Deputy Director of theDepartment of Correct...
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Debtor Brian D. Hammer appeals pro se from the decision of the Bankruptcy Appellate Panel affirming the bankruptcy court's denial of his motion to set aside a default judgment. In re Hammer, 112 B.R. 341 (9th Cir. BAP 1990). We have jurisdiction pursuant to 28 U.S.C. § 158(d), and we affirm. BACKGROUND Beginning in 1985, appellees Michael Drago and Ed Summers inv...
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A jury convicted Gilbert Mariscal, Jr., of conspiracy to distribute cocaine and use of a telephone to facilitate the distribution of cocaine, all in violation of 21 U.S.C. §§ 841(a)(1), 843(b) & 846. He was tried along with seven codefendants and claims the district court erred in denying his motion for severance. We affirm. I Part of the government’s case against Mariscal consisted o...
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Plaintiffs-appellants Don and Linda Fel-ton appeal the district court’s grant of summary judgment for defendants-appellees Unisource, et al., based on its findings that (1) their state law claims are preempted by ERISA and (2) any claim under ERISA is barred by the statute of limitations. 739 F.Supp. 1388. We hold that the district court correctly found that the Feltons’ state law claims were pree...
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940 F.2d 1561 Ruby HEWITT; Ralph Winant; Jerry Weitzman; Darrell Barkerand Dennis Molloy, Plaintiffs-Appellants,v.John JOYNER; Robert L. Hammock; Jon D. Mikels; Barbara C.Riordan; and Larry Walker, in their official capacities asmembers of the San Bernardino County Board of Supervisors;Yucca Valley Parks and Recreation District, Defendants-Appellees. No. 89-55199. United States ...
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*1278 Opinion —In this our third visit to the subject of this controversy, 1 minor plaintiff Jacob Schneider represented by his mother and guardian ad litem Marcia Schneider appeals from a summary judgment entered in favor of defendant Sacramento law firm Friedman, Collard, Poswall & Virga (Friedman Collard). In 1987, Friedman Collard through partner Morton Friedman re...
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*1297 Opinion —Golden West Baseball Company, operator of the California Angels baseball club, appeals after the trial court granted summary judgment in favor of defendant William O. Talley, former city manager of the City of Anaheim (the City). Golden West sued Talley for fraud, but as damages alleged only attorneys’ fees incurred in a prior action against the City. We find Golde...
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Opinion —Wallace J. Brown appeals from a judgment of dismissal following the sustaining of a demurrer without leave to amend. Appellant alleged in his complaint that he went to a 7-Eleven store to purchase two California Lottery tickets. The store clerk informed him that the terminal was not functioning properly and that only tickets with terminal-generated number selections could be...
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232 Cal.App.3d 1239 (1991) 284 Cal. Rptr. 18 Adoption of MATTHEW B., a Minor. NANCY B., Plaintiff and Appellant, v. CHARLOTTE M., Defendant and Respondent. TIMOTHY M., Plaintiff and Respondent, v. NANCY B., Defendant and Appellant. Docket Nos. A044280, A045711. Court of Appeals of California, First District, Division Three. July 30, 1991. *1250 COUNSEL Rita L. Swenor, under appointment by the Cou...
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232 Cal.App.3d 1362 (1991) 284 Cal. Rptr. 62 MARGARET HAWORTH et al., Plaintiffs and Appellants, v. BENJAMIN LIRA et al., Defendants and Respondents. Docket No. B045630. Court of Appeals of California, Second District, Division Five. July 31, 1991. *1364 COUNSEL Hogan, Baynes & Haworth, Greason Haworth and Maral Injeyan for Plaintiffs and Appellants. Cassidy, Warner, Brown, Combs & Thurbe...
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Opinion —David O. (father) has appealed from an order terminating his parental rights as to Andrew V. (minor), following a trial of the consolidated matters of father’s action to establish paternity and the department of public social services’ (DPSS) subsequent petition to terminate father’s parental rights. Facts Father and the minor’s mother lived together. When the minor’s mother told father s...
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Opinion —William and Phyllis Czapar each appeal from the judgment in this marital dissolution. Phyllis contends the trial court erred in deducting the value of a future covenant not to compete from the value of the family business awarded to William. William contends the trial court erred in reclassifying certain amounts paid to Phyllis during separation as spousal support, finding he had waste...
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MEMORANDUM OF DECISION AND ORDER (AMENDED) This matter was heard on February 22, 1991, on plaintiffs’ motion for summary judgment. The court requested supplemental briefing, which the parties supplied, and the matter was submitted on April 5, 1991. Plaintiffs are California residents who receive funds from the Aid to Families with Dependent Children (“AFDC”) program. See 42 U.S...
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ORDER Motion Picture Industry Pension Plan, et. al. (“Plaintiffs”) in the above captioned action have moved for Judgment upon the Master’s Decision and attorney’s fees. The Klages Group, Inc. (“Defendant”) timely filed opposition. In addition, Defendant in the above captioned action has moved for an order granting summary judgment and attorney’s fees. Plaintiffs timely opposed that motion. Both m...
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MEMORANDUM I. FACTUAL SUMMARY Plaintiff Dep Corporation (“Dep”) is a manufacturer of personal care products, including hair care, skin care, oral hygiene, and health related products. Dep adopted and began using the mark “L.A. LOOKS” for use in connection with hair products in September, 1987. Dep filed an application for U.S. trademark registration of the mark on January 15,198...
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Opinion —This is a fight between two insurance companies over who should pay for the tragic results of an auto accident involving a water truck *1323 in January 1987. The matter boils down to the applicability of the auto exclusion in one insurer’s policy. The appeal requires us to decide whether a water truck equipped with permanently attached spraying equipment comes within...
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941 F.2d 807 UNITED STATES of America, Plaintiff-Appellee,v.Michael Allen SCHANNING, Defendant-Appellant. No. 91-15111. United States Court of Appeals,Ninth Circuit. Submitted June 27, 1991.*Decided Aug. 1, 1991. Michael Allen Schanning, pro se. Reese V. Bostwick, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee. Appeal from the United States District ...
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Arcade Water District (“Arcade”) sued the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674, for contamination of an Arcade well by a military laundry. The district court dismissed the suit with prejudice, holding that the FTCA statute of limitations bars the suit. Arcade timely appealed. We reverse. FACTS AND PROCEEDINGS Arcade Water District is a California ...
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941 F.2d 799 UNITED STATES of America, Plaintiff-Appellee,v.Wesley A. PLUMMER, Defendant-Appellant. No. 90-10013. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 5, 1991.Decided Aug. 1, 1991. Michael B. Scott, Phoenix, Ariz., for defendant-appellant. Roslyn Moore-Silver, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee. Appeal...
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*1038 AMENDED ORDER DISMISSING INDIVIDUAL DEFENDANTS AND STAYING PROCEEDINGS 1 INTRODUCTION Plaintiff Zogbi filed the present action in the Superior Court of the State of California for the County of Los Angeles on March 9, 1988. On February 20, 1991, defendants Liebig and Jacobson (sued as “Jacobsen”) were served with the summons and complaint. Also, on February 20,...
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941 F.2d 780 58 Fair Empl.Prac.Cas. (BNA) 627, 60 USLW 2118,7 IER Cases 1451, 1 A.D. Cases 1831 John DOE, Plaintiff-Appellant,v.ATTORNEY GENERAL OF the UNITED STATES; the Director of theFederal Bureau of Investigation; Richard Held, SpecialAgent in Charge of the San Francisco Office, Federal Bureauof Investigation, Defendants-Appellees. Nos. 89-15933, 89-16134. United States Cour...
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MEMORANDUM AND ORDER The Second Amended Complaint in this action alleges eleven causes of action against defendant. Defendant’s motion to dismiss eight of these claims has been submitted for decision. Because of the complexity of the questions involved, an under *1055 standing of the history of this litigation is essential. BACKGROUND Alleging myriad theories of lia...
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Opinion I. Introduction This appeal by Manuel Glenn Abascal challenges an allocation of attorney fees upon settlement of class action litigation arising from the assessment of various checking account fees by Wells Fargo Bank, N. A., and Crocker National Bank. We previously affirmed a judgment approving the settlement in Rebney v. Wells Fargo Bank (1990) 220 Cal...
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940 F.2d 527 AYDIN CORPORATION, Plaintiff-Appellant,v.UNION OF INDIA, Defendant-Appellee. No. 90-15656. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 14, 1991.Decided Aug. 2, 1991. Michael L. Harrison, Harrison & Kaylor, San Jose, Cal., for plaintiff-appellant. Margaret Ecker Nanda, Matteoni, Saxe & Nanda, San Jose, Cal., Durvasula ...
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Following the filing of an information, Danny Purvis was prosecuted for a violation of 21 U.S.C. § 844(a), simple possession of a controlled substance. He was found guilty of that misdemeanor offense and sentenced to one year imprisonment plus one year of supervised release. The conditions of his supervised release required him to refrain from drug usage and to submit to drug testing and treatmen...
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Peter Harris sued Duty Free Shoppers under section 2(c) of the Robinson-Patman Act, 1 15 U.S.C. § 13(c), and under the Cali *1274 fornia unfair competition statutes. 2 The district court granted Duty Free’s motion for summary judgment. Harris appeals. In addition to challenging the merits of the district court’s ruling, Harris contends that the court erred by ...
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941 F.2d 808 56 Empl. Prac. Dec. P 40,902 AMERICAN FRIENDS SERVICE COMMITTEE CORPORATION; Stephen G.Cary; Teresa Mathis; Aurora Camacho de Schmidtet al., Plaintiffs-Appellants,v.Richard THORNBURGH, Attorney General of the United States;United States Immigration and NaturalizationService; United States of America,Defendants-Appellees. No. 89-56095. United States Court of Appeals...
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54 Cal.3d 56 (1991) 813 P.2d 1318 284 Cal. Rptr. 288 THE PEOPLE, Plaintiff and Respondent, v. MICHAEL GORDON TILBURY, Defendant and Appellant. Docket No. S012984. Supreme Court of California. August 1, 1991. *58 COUNSEL Charles R. Khoury, Jr., under appointment by the Supreme Court, for Defendant and Appellant. Jean F. Matulis, Joseph A. Ragazzo and Stacy C. Mickell as Amici Curiae on behalf of D...
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ORDER This tax refund suit is before the Court on cross-motions for summary judgment under Fed.R.Civ.P. 56. On May 14, 1979, the IRS discovered an error in plaintiffs’ timely-filed tax return for the 1978 tax year. The IRS adjusted plaintiffs’ tax owing (line 35 of the return) from $4,388.00 to $11,500.32 and erroneously allowed plaintiffs credits of $11,614.00, refunding to plaintiffs $113.6...
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dissenting: I agree that Congress has said what it expects the INS to do, pretty clearly. But I disagree that Soler has made out a clear claim to relief on account of a duty owed to him, as the Mandamus Act requires. 28 U.S.C. § 1361; see Nova Stylings, Inc. v. Ladd, 695 F.2d 1179, 1180 (9th Cir.1983). Federal prisoners were not the intended beneficiaries of section 701 of the Immigration Reform a...
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232 Cal. App. 3d 1422 (1991) 284 Cal. Rptr. 70 J. ANDREW LUBIN et al., Petitioners, v. PETE WILSON, as Governor, etc., et al., Respondents; MATTHEW K. FONG, Real Party in Interest. Docket No. D014315. Court of Appeals of California, Fourth District, Division One. August 1, 1991. *1425 COUNSEL Merrick Scott Rayle for Petitioners. Daniel E. Lungren, Attorney General, N. Eugene Hill, Assistant Attor...
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232 Cal.App.3d 1410 (1991) 284 Cal. Rptr. 106 BRIAN B. CHARLES, Plaintiff and Appellant, v. BOARD OF ADMINISTRATION, PUBLIC EMPLOYEES' RETIREMENT SYSTEM et al., Defendants and Respondents. Docket No. G009842. Court of Appeals of California, Fourth District, Division Three. July 22, 1991. *1411 COUNSEL Seth J. Kelsey for Plaintiff and Appellant. Edward J. Cooper, City Attorney, Richard E. Lay, Ass...
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Opinion —Appellants appeal an injunction which limits their access to patients of Dr. Edward Allred, owner and operator of Family Planning Associates Medical Group (FPAM). In particular, they object to the court’s restraining their entry onto the private parking lot of the professional center in which FPAM is located. I Appellants have picketed FPAM for several years, but, until...
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940 F.2d 1287 Barbara POGUE, Petitioner,v.UNITED STATES DEPARTMENT OF LABOR; Lynn Martin, Secretary,* Respondents. No. 90-70318. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 13, 1991.Decided Aug. 5, 1991. Ann H. Lyons, Gorman & Waltner, Oakland, Cal., for petitioner. Anne Payne Fugett, U.S. Dept. of Labor, Washington, D.C., for respo...
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941 F.2d 844 33 Fed. R. Serv. 956 UNITED STATES of America, Plaintiff-Appellee,v.Wing Fook LUI, Defendant-Appellant. No. 89-50557. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 11, 1991.Decided Aug. 5, 1991. Donald C. Randolph, Overland, Berke, Wesley, Gits, Randolph & Levanas, Santa Monica, Cal., for defendant-appellant. Patricia ...
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940 F.2d 530 1991 A.M.C. 2888 C-ART, LTD., Plaintiff-Appellee,v.HONG KONG ISLANDS LINE AMERICA, S.A., Defendant-Appellant,andPrecious Shipping Company, S.A.; Hong Kong TreasureShipping Company, S.A.; New Pioneer ShippingCompany, S.A.; Hong Kong AmericaShipping Company, S.A., etal., Defendants. No. 89-56090. United States Court of Appeals,Ninth Circuit. Argued and Submitted N...
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940 F.2d 1280 69 Ed. Law Rep. 203 BARLOW-GRESHAM UNION HIGH SCHOOL DISTRICT NO. 2, Plaintiff-Appellant,v.Wesley MITCHELL, individually, and Bari Mitchell and MichaelMitchell, his parents, Defendants-Appellees. No. 90-35148. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 2, 1990.Decided Aug. 5, 1991. Timothy R. Volpert, Davis, Wright, Tremaine...
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David Rossman appeals the district court’s denial of his motion to dismiss as time barred an indictment charging him with making a false statement on an application for an Airman Medical Certificate in violation of 18 U.S.C. § 1001. Rossman claims the district court erred by failing to count the day on which he committed the offense in calculating the five-year limitations period. We lack jurisdi...
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941 F.2d 811 UNITED STATES of America, Plaintiff-Appellee,v.Warren James SHARP, Defendant-Appellant. No. 88-5122. United States Court of Appeals,Ninth Circuit. Submitted March 27, 1990.*Submission Deferred April 5, 1990.Resubmitted Aug. 13, 1990.Decided Aug. 5, 1991. Robert L. Allen, Los Angeles, Cal., Warren James Sharp, Boron, Cal., for the defendant-appellant. B...
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941 F.2d 817 60 USLW 2136, 69 Ed. Law Rep. 252 PLANNED PARENTHOOD OF SOUTHERN NEVADA, INC., Plaintiff-Appellant,v.CLARK COUNTY SCHOOL DISTRICT, Members of the Board of SchoolTrustees, individually and in their capacity as Trustees ofthe Clark County School District: Lucille Lusk, DanGoldfarb, Patricia Bendorf, Virginia Brooks Brewster, DonaldR. Faiss, Robert Forbuss, and Shirley Holst; R...
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MEMORANDUM ORDER RE ATTORNEYS’ FEES AND COSTS This is a certified class action alleging securities fraud with respect to the common stock of Ashton-Tate Corporation. The court has approved a class settlement of $10.8 million, together with interest thereon accrued since February 19, 1991. Counsel for the class now seek attorneys’ fees and costs. 1 In Paul, Johnson, Alst...
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Opinion —Carlos Rivadeneira appeals from judgment entered following his negotiated plea of guilty to residential burglary, with court findings of five prior serious felony convictions. (Pen. Code, §§ 459, 667, subd. (a).) Appellant contends: “I. The enhancements as to the priors occurring before 1986 must be stricken as a matter of law. II. The trial court erred in failing to state reasons for imp...
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232 Cal. App. 3d 1432 (1991) 284 Cal. Rptr. 154 EMMA CASTRO et al., Plaintiffs and Appellants, v. LOS ANGELES COUNTY BOARD OF SUPERVISORS et al., Defendants and Respondents. Docket No. B053611. Court of Appeals of California, Second District, Division Three. August 2, 1991. *1433 COUNSEL Litt & Stormer, Dan Stormer and Virginia Keeny for Plaintiffs and Appellants. *1434 Nossaman, Guthner, Kno...
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232 Cal.App.3d 1446 (1991) 284 Cal. Rptr. 171 FRIENDS OF LA VINA et al., Plaintiffs and Respondents, v. COUNTY OF LOS ANGELES, Defendant and Appellant; CANTWELL-ANDERSON, INC., et al., Real Parties in Interest and Appellants. Docket No. B053286. Court of Appeals of California, Second District, Division Two. August 5, 1991. *1449 COUNSEL De Witt W. Clinton, County Counsel, Charles J. Moore and Ric...
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A jury found Continental liable to Inglis for violating federal and state antitrust statutes, and awarded damages. In No. 89-15412, Continental appeals the court’s denial of its motions for judgment notwithstanding the verdict (“JNOV”) and a new trial; we affirm in part and reverse in part. In No. 89-15422, Inglis appeals several of the court’s rulings affecting the amount of damages; we affirm in...
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*544 ORDER Appellant’s petition for rehearing is GRANTED. The memorandum disposition filed September 24, 1990 is withdrawn. A new disposition will be filed in its stead. OPINION This appeal from the district court’s order granting relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(5) in an age discrimination case presents, surprisingly, a questi...
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941 F.2d 858 UNITED STATES of America, Plaintiff-Appellee,v.Richard Louis DURHAM, Defendant-Appellant. No. 89-30349. United States Court of Appeals,Ninth Circuit. Argued and Submitted Jan. 7, 1991.Decided Aug. 6, 1991. John Johnston, Corette, Pohlman, Allen, Black & Carlson, Butte, Mont., for defendant-appellant. Bernard F. Hubley, Asst. U.S. Atty., Helena, Mon...
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The California Horse Racing Board (CHRB) issued an administrative order requiring United Tote to negotiate a collective bargaining agreement with the International Brotherhood of Electrical Workers (Union). The National Labor Relations Board (Board) filed this action in federal district court, seeking an injunction against enforcement of the CHRB order and a declaration that the National Labor ...
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941 F.2d 853 60 USLW 2137 Ronald D. ROUTH, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee. No. 90-35536. United States Court of Appeals,Ninth Circuit. Submitted Feb. 8, 1991.*Decided Aug. 6, 1991. Dale J. Walther, Clark, Walther & Flanigan, Anchorage, Alaska, for plaintiff-appellant. James G. Touhey, Jr., Trial Atty., Torts Branch, U.S. ...
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940 F.2d 1291 138 L.R.R.M. (BNA) 2270, 119 Lab.Cas. P 10,869 The CAREAU GROUP, dba Egg City, Plaintiff-ThirdParty-Defendant-Appellant,andTim Luberski, dba Hidden Villa Ranch, Plaintiff,v.UNITED FARM WORKERS OF AMERICA, AFL-CIO, Defendant-ThirdParty-Plaintiff-Appellee. No. 89-55844. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 9, 1990.Decided Aug. 6, ...
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941 F.2d 849 1991 A.M.C. 2899 Glenn LUDWIG, Plaintiff-Appellee,v.PAN OCEAN SHIPPING CO., LTD., owner of the M/V OCEAN ROYAL,Defendant-Appellant. No. 90-35625. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 4, 1991.Decided Aug. 6, 1991. Edward M. Archibald, Heidi A. Irvin, Bogle & Gates, Seattle, Wash., for defendant-appellant. Rober...
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Opinion —The parents and brothers of Meghan K. Fife appeal a summary judgment granted to Jennifer Astenius. The Fifes are seeking recovery for the alleged negligent infliction of emotional distress (hereafter NIED) caused when they heard a car crash and went to the street to discover Meghan had been injured. The Supreme Court’s guidelines for recovery in Thing v. La Chusa (1989) 48 Cal.3d...
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*1531 Opinion —Appellant challenges the validity of his out-of-state prior convictions which were used to enhance his sentence. Facts Appellant was charged with 15 offenses arising out of a series of armed robberies and assaults. The most serious charge was aggravated assault by an habitual offender (Pen. Code, § 667.7). 1 Appellant pled guilty to two counts of possession of a firearm b...
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232 Cal.App.3d 1571 (1991) 284 Cal. Rptr. 211 THE PEOPLE, Plaintiff and Respondent, v. JOSE D. GUTIERREZ, Defendant and Appellant. Docket No. A051889. Court of Appeals of California, First District, Division Five. August 7, 1991. *1572 COUNSEL James B. Laflin, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assis...
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941 F.2d 864 1991-2 Trade Cases P 69,523 DATAGATE, INC., a corporation, Plaintiff-Appellant,v.HEWLETT-PACKARD CO., a corporation, Defendant-Appellee. No. 88-15293. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 3, 1989.Submission Deferred Nov. 22, 1989.Resubmitted July 30, 1991.Decided Aug. 7, 1991. Craig S. Ritchey and Karen E. Wentzel, Bla...
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ORDER The motion of petitioner filed herein on June 10, 1991 unequivocally asserts his desire to discharge appointed counsel and to represent himself in all further proceedings in this appeal. He is entitled to do so under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This motion is therefore GRANTED. Attorneys Gombiner and Lyon are relieved from further represent...
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940 F.2d 1295 138 L.R.R.M. (BNA) 2733, 60 USLW 2132,119 Lab.Cas. P 10,870,121 Lab.Cas. P 10,110 NATIONAL LABOR RELATIONS BOARD, Petitioner,andSocial Services Union Local 535 SEIU, AFL-CIO, Intervenor,v.HANNA BOYS CENTER, Respondent. No. 89-70385. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 13, 1991.Decided Aug. 7, 1991.As Amended on Denial of Rehea...
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INTRODUCTION Commercial Builders appeals the district court’s grant of summary judgment in favor of the City of Sacramento in Commercial Builders’ suit challenging a city ordinance to help expand available low-income *873housing. The Ordinance in question conditions certain types of nonresidential building permits upon the payment of a fee intended to offset the burdens on the city caused by low-i...
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940 F.2d 1306 In re Sammy George DAILY.The ESTATE OF Sammy G. DAILY, Plaintiff-Appellee,v.LILIPUNA ASSOCIATES, a Hawaii limited partnership; TitleGuaranty Escrow Service, Inc., a HawaiiCorporation, Defendants,andLilipuna Venture, Inc., a Hawaii Corporation; LilipunaDevelopment Corporation, a Hawaii Corporation,Defendants-Appellants. No. 90-15137. United States Court of Appeals,Ninth ...
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John Eric Price appeals the district court’s denial of his petition for naturalization. The district court’s order was based on Price’s refusal to list all organizations with which he has ever been affiliated. Price argues that the Attorney General does not have statutory authority to require him to supply such a list and that such authority would be unconstitutional. We affirm. I John Price is a ...
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Opinion —“For every wrong there is a remedy.” (Civ. Code, § 3523.) Here the remedy is restitution: “. . . restoration of anything to its rightful owner; the act of making good or giving equivalent for any loss, damage, or injury . . . .” (Black’s Law Diet. (5th ed. 1979) p. 1180, col. 2.) Gardiner Solder Company (Gardiner) appeals from the judgment in favor of respondents, SupAlloy ...
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Opinion —In this case we hold that individual members of a homeowners association in a planned residential development have no standing to maintain an action against insurance companies on policies purchased by and issued to the homeowners association managing the development and under which plaintiffs are not insureds. We therefore affirm summary judgment in favor of defendants United Pa...
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941 F.2d 886 UNITED STATES of America, Plaintiff-Appellee,v.Bonnie Ann DURHAM, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Jerome Sherman STANLEY, Defendant-Appellant. Nos. 90-10022, 90-10049. United States Court of Appeals,Ninth Circuit. Argued and Submitted Jan. 17, 1991.Decided Aug. 7, 1991. Margaret A. McKnight, Fresno, Cal., for defendant-appe...
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232 Cal.App.3d 1518 (1991) 284 Cal. Rptr. 201 In re the Marriage of CAROLE and GEORGE KILBOURNE. CAROLE M. KILBOURNE, Respondent, v. GEORGE W. KILBOURNE, Appellant. Docket No. A044736. Court of Appeals of California, First District, Division One. August 6, 1991. *1520 COUNSEL Frank R. Frisch for Appellant. William F. Urich for Respondent. [Opinion certified for partial publication.[†]] OPINION DO...
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*634 OPINION This interlocutory appeal poses the question of whether the bankruptcy court may conduct a jury trial in a core matter where defendants have not conferred jurisdiction on the Bankruptcy Court by filing a claim therein. The Court holds that jury trials in bankruptcy court in core matters are authorized by the Bankruptcy Amendments and Federal Judgeship Act of 1984 (th...
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MEMORANDUM AND ORDER On November 13, 1990, plaintiff General American Life Insurance Company (“General American”) brought this action seeking rescission of a business overhead expense disability insurance contract and damages against defendant Gurcharan S. Rana. Plaintiff alleges: (1) that defendant misrepresented and concealed material facts from plaintiff, and (2) that defendant is not ...
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The Government obtained the civil forfeiture of a 1986 Dodge Ram Charger and $277,000 in U.S. currency found in this vehicle, pursuant to 21 U.S.C. § 881 (1988). Claimant Montes appeals on the ground that evidence discovered in the search of the Dodge Ram Charger should have been suppressed because it was obtained in violation of his Fourth Amendment rights. He contends that the police conduct in ...
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940 F.2d 550 FERRARI, ALVAREZ, OLSEN & OTTOBONI, a Californiaprofessional corporation; Edward M. Alvarez, anindividual,Plaintiffs-counter-defendants-Appellees,v.The HOME INSURANCE COMPANY, a New Hampshire corporation,Defendant-counter-claimant-Appellant.FERRARI, ALVAREZ, OLSEN & OTTOBONI, a Californiaprofessional corporation; Edward M. Alvarez, anindividual,Plaintiffs-counter-defenda...
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941 F.2d 905 60 USLW 2175 UNITED STATES of America, Plaintiff-Appellant,v.Robert GOROZA, Defendant-Appellee. No. 90-10142. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 11, 1990.Decided Aug. 8, 1991. R. Michael Burke, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellant. Samuel P. King, Jr., King & King, Honolulu, Hawaii, fo...
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ORDER The request for publication of the memorandum disposition of May 3,1991 is granted only as it pertains to the issue of jurisdiction. The attached opinion authored by Judge Tang is ordered filed. Dr. Edward Curry retained the appellant, attorney Daniel Del Priore, to represent him in a Title VII action, 42 U.S.C. § 2000e-2(a), against Guam Memorial Hospital. Dr. Curry and Del Priore executed...
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940 F.2d 1308 Robert Eldridge JENNISON, Petitioner-Appellant,v.B.D. GOLDSMITH, Warden; Attorney General of the State ofArizona, Respondents-Appellees. No. 87-2977. United States Court of Appeals,Ninth Circuit. Submitted Sept. 1, 1989.*Submission Vacated July 27, 1990.Resubmitted Dec. 18, 1990.Decided Aug. 8, 1991. Robert E. Jennison, pro per. Sandra Lynn Slaton, P...
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942 F.2d 617 Richard ROTH; Richard Roth Productions, Plaintiffs-Appellants,v.Gabriel GARCIA MARQUEZ; Carmen Balcells, Defendants-Appellees.Richard ROTH; Richard Roth Productions, Plaintiffs-Cross-Appellees,v.Gabriel GARCIA MARQUEZ; Carmen Balcells, Defendants-Cross-Appellants. Nos. 90-55713, 90-55751. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 7, 19...
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941 F.2d 933 60 USLW 2157, Fed. Sec. L. Rep. P 96,164 David COLAN, Plaintiff,andUnocal Corporation, Plaintiff-Appellant,v.MESA PETROLEUM CO., et al., Defendants-Appellees.David COLAN, Plaintiff-Appellant,andUnocal Corporation, Plaintiff,v.MESA PETROLEUM CO., et al., Defendants-Appellees. Nos. 90-55641, 90-55643. United States Court of Appeals,Ninth Circuit. Argued and Submitte...
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941 F.2d 910 57 Empl. Prac. Dec. P 41,056 CORAL CONSTRUCTION COMPANY, an Oregon corporation; OregonColumbia Chapter of the Associated GeneralContractors of America, Inc., an Oregonnon-profit corporation,Plaintiffs-Appellants,v.KING COUNTY, a legal subdivision of the State of Washington,Defendant-Appellee. No. 90-35066. United States Court of Appeals,Ninth Circuit. Argued and S...
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OPINION ON ORDER DENYING PRELIMINARY INJUNCTION AND GRANTING ATTORNEYS’ FEES PROCEDURAL HISTORY On April 5, 1991, plaintiff Fabian Financial Services (“Fabian”) filed its Application for Preliminary Injunction seeking to restrain the Kurt H. Volk, Inc. Profit Sharing Plan (the “Plan”) from proceeding with arbitration of a claim against Fabian before the American Arbitration Associati...
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232 Cal.App.3d 1643 (1991) 284 Cal. Rptr. 241 THE PEOPLE, Plaintiff and Respondent, v. TONY MARCUS WILLIAMS, Defendant and Appellant. Docket No. A048434. Court of Appeals of California, First District, Division Two. August 8, 1991. *1645 COUNSEL Joann M. Cook, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, and Christopher W. Grove, Depu...
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*1594 Opinion —Penal Code 1 section 290 requires registration of persons convicted of various sex offenses, including assault with intent to commit rape or sodomy under section 220. The statute does not expressly require registration upon conviction of assault with intent to commit oral copulation, another crime listed in section 220, but does so for conviction of felo...
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Opinion Section 1714.10 of the Civil Code 1 requires an order of court as a condition precedent to suit against an attorney alleging a civil conspiracy with the attorney’s client. We hold that this requirement is not jurisdictional and that, absent timely objection to a complaint filed without permission of court, the protection conferred by section 1714.10 is waived. Fact...
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Opinion Introduction Defendant and appellant Mohammed Iqbal Noor (Noor) appeals the judgment entered following a jury verdict in the amount of $90,000 in favor of plaintiffs and respondents Donald L. Vaughn and Betty Vaughn (the Vaughns) for wrongful death of their son. Noor contends the trial court committed prejudicial error when it failed to give the jury a “start anew” instructio...
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942 F.2d 1352 60 USLW 2125 Jenny Lisette FLORES, a minor, by next friend Mario HughGALVEZ-MALDONADO; Dominga Hernandez-Hernandez, a minor, bynext friend Jose Saul Mira; Alma Yanira Cruz-Aldama, aminor, by next friend Herman Perililo Tanchez, Plaintiffs-Appellees,v.Edwin MEESE, III; Immigration & Naturalization Service;Harold Ezell, Defendants-Appellants. No. 88-6249. United ...
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940 F.2d 1312 138 L.R.R.M. (BNA) 2202, 119 Lab.Cas. P 10,871 William H. GONZALEZ, Plaintiff-Appellant-Cross-Appellee,v.ALOHA AIRLINES, INC., a Hawaii Corporation, Defendant-Appellee,andHawaiian Airlines, Inc., a Hawaii Corporation,Defendant-Appellee-Cross-Appellant. Nos. 90-15518, 90-15585. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 10, 1991.Decide...
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942 F.2d 567 James Dean CLARK, Petitioner-Appellant,v.James R. RICKETTS, et al., Respondents-Appellees. No. 87-2560. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 9, 1988.Opinion Filed Sept. 28, 1989.Rehearing Granted Feb. 21, 1991.Reargued and Resubmitted March 21, 1991.Opinion Withdrawn Aug. 9, 1991.Decided Aug. 9, 1991. See also 126 Ariz. 428...
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Greenamyer Engineering and Technology, Inc. (“GE & T”) appeals a decision of the Bankruptcy Appellate Panel holding that certain contracts executed by Medis-can Research, Ltd. (“Mediscan”) and GE & T are unenforceable due to common law fraud, violation of the United States securities laws, lack of consideration, and impossibility of performance. In so ruling, the Bankruptcy Appellate Panel uphe...
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940 F.2d 1317 21 Bankr.Ct.Dec. 1652, Bankr. L. Rep. P 74,113 In re Morton REED, Debtor.Steven A. SCHWABER, Trustee, Plaintiff-Appellee,v.Morton REED, Defendant-Appellant,andSafi Reed; Joseph T. Vodnoy, et al., Defendants.In re Morton REED, Debtor.Steven A. SCHWABER, Trustee, Plaintiff-Appellee,v.Safi REED, Defendant-Appellant,andMorton Reed; Joseph T. Vodnoy, et al., Defendants. Nos...
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Opinion —The chief questions presented by this appeal are whether plaintiff, a publicly employed social worker, stated facts sufficient to constitute a cause of action in her complaint based upon an allegedly defamatory letter written by defendant to plaintiff’s supervisor and whether plaintiff is a “public official” within the meaning of New York Times Co. v. Sullivan ...
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Opinion —Appellant Daniel Guiterrez appeals following jury trial where he was convicted on five counts of violating Penal Code sections 261, subdivision (2), and 264.1 (rape by force while acting in concert with others). He asserts the court erred (1) by refusing to instruct on the offense of battery; (2) by denying his motion for judgment of acquittal and for a new trial based on the insuffici...
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941 F.2d 950 60 USLW 2141 EL RESCATE LEGAL SERVICES, INC.; Central American RefugeeCenter; Shamila Ramin; Fereshteh Entemadi, etal., Plaintiffs-Appellees,v.EXECUTIVE OFFICE OF IMMIGRATION REVIEW; David Milhollan;William R. Robie; Robert M. Moschorak, et al.,Defendants-Appellants. No. 90-55292. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 10, 1991....
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942 F.2d 556 UNITED STATES of America, Plaintiff-Appellee,v.Miguel Angel FLORES-PAYON, Defendant-Appellant. No. 90-50081. United States Court of Appeals,Ninth Circuit. Submitted March 5, 1991.*Memorandum March 26, 1991.Order and Opinion Aug. 12, 1991. 1 Louis S. Katz, San Diego, Cal., for defendant-appellant. 2 Larry A. Burns, Asst. U.S. Atty....
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940 F.2d 1324 56 Fair Empl.Prac.Cas. 1022,57 Empl. Prac. Dec. P 40,917, 60 USLW 2145,14 Employee Benefits Ca 1057 Lana PALLAS, Plaintiff-Appellant,v.PACIFIC BELL; Pacific Telesis, et al., Defendants-Appellees. No. 90-15559. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 15, 1991.Decided Aug. 12, 1991. Maria Blanco, Equal Rights Advocates, an...
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941 F.2d 964 FARLEY AND CALFEE, INC., Petitioner,v.U.S. DEPARTMENT OF AGRICULTURE, Respondent. No. 90-70274. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 11, 1991.Decided Aug. 12, 1991. Con P. Lynch, Douglas, Dickey & Lynch, Salem, Or., for petitioner. Ellen R. Hornstein, U.S. Dept. of Justice, Washington, D.C., for respondent. ...
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941 F.2d 956 Luis ALVAREZ-MENDEZ, Petitioner-Appellant,v.Fred J. STOCK, Warden, Respondent-Appellee. No. 90-55447. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 6, 1991.Decided Aug. 12, 1991. Francis D. Logan Jr. (law student), and Charles D. Weisselberg, Dennis E. Curtis, Post-Conviction Justice Project, University of Southern California Law Ce...
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941 F.2d 732 20 Fed. R. Serv. 3d 403 Michael T. PORTER, Plaintiff-Appellant,v.Deputy MARTINEZ, Deputy Rivera, Deputy Ruben, DeputyMorales, Deputy Smith, Defendants-Appellees. No. 90-56353. United States Court of Appeals,Ninth Circuit. Submitted July 23, 1991.*Memorandum Filed July 26, 1991.Order and Opinion Filed Aug. 12, 1991. Kathleen K. Johnson, Hollywood, Cal., f...
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941 F.2d 947 68 A.F.T.R.2d (RIA) 91-5394, 91-2 USTC P 50,391,20 Fed. R. Serv. 3d 377 UNITED STATES of America, Plaintiff-Appellee,v.Neil T. NORDBROCK, Defendant-Appellant. No. 90-15668. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 12, 1991.Decided Aug. 12, 1991. William A. Cohan, Cohan & Greene, Encinitas, Cal., for defendant-appellant...
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941 F.2d 970 19 U.S.P.Q.2d 1775 LAMB-WESTON, INC., Plaintiff-Appellee,v.McCAIN FOODS, LTD.; McCain Foods, Inc., Defendants-Appellants. No. 91-35476. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 31, 1991.Decided Aug. 12, 1991. Corinne Chandler, Seyfarth, Shaw, Fairweather & Geraldson, San Francisco, Cal., Alan L. Unikel, Harold C. Wheel...
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*887 Opinion —In this personal injury action stemming from a shooting incident at Cal Expo, plaintiff Dion Turner appeals a judgment of dismissal entered after the trial court granted summary judgment to all defendants. Plaintiff contends summary judgment was improper because defendants failed to negate all claims stated in the complaint and the court erred in precluding a claim ...
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233 Cal.App.3d 103 (1991) 284 Cal. Rptr. 367 PETERSON DEVELOPMENT COMPANY, INC., et al., Plaintiffs and Appellants, v. TORREY PINES BANK et al., Defendants and Respondents. Docket Nos. D012843, D013435. Court of Appeals of California, Fourth District, Division One. August 9, 1991. *107 COUNSEL Thor O. Emblem and Tracy L. Emblem for Plaintiffs and Appellants. Brobeck, Phleger & Harrison, Willi...
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MEMORANDUM AND ORDER Plaintiff Pearl Thomas Mitchell, a black female, brings this action for sex and race discrimination under Title VII, 42 U.S.C. § 2000e et seq., against her former employer, Peralta Community College District (“Peralta”), and for violations of the Civil Rights Act, 42 U.S.C. §§ 1981 and 1983, against two members of Peralta’s Board of Trustees, Amey Stone and...
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Opinion This is an appeal by defendant Alcove Investment, Inc. (Alcove), from an order staying arbitration of plaintiff’s claims against Alcove during the pendency of this litigation. We affirm. Facts and Proceedings Below The following facts are taken from the record on the motion to stay arbitration including the verified first amended complaint and deposition of plaintiff, Ro...
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941 F.2d 993 UNITED STATES of America, Plaintiff-Appellee,v.Felicitas N. FULLER, Defendant-Appellant. No. 90-10263. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 8, 1991.Decided Aug. 13, 1991. Harold F. Parker, Agana, Guam, for defendant-appellant. Karon V. Johnson, Agana, Guam, for plaintiff-appellee. Appeal from the United States Di...
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941 F.2d 996 UNITED STATES of America, Plaintiff-Appellee,v.German ARIAS-GRANADOS, aka German Hernandez and MiguelRosas-Arenos, aka Carlos Lopez-Ramirez,Defendants-Appellants. Nos. 90-50507, 90-50570. United States Court of Appeals,Ninth Circuit. Argued April 4, 1991.Submitted Aug. 8, 1991.Decided Aug. 13, 1991. David J. Cohen and Martha M. Hall, Federal Defenders of San...
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941 F.2d 984 138 L.R.R.M. (BNA) 2246, 119 Lab.Cas. P 10,881 SKS DIE CASTING & MACHINING, INC., Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent,NATIONAL LABOR RELATIONS BOARD, Petitioner,v.SKS DIE CASTING & MACHINING, INC., Respondent. Nos. 89-70324, 91-70377. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 12, 1990.Decided Aug. 13, 1991....
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941 F.2d 975 1992 A.M.C. 23 Cynthia Sue REBER; Courtney Brianne Reber, By and ThroughCynthia Sue Reber, Guardian Ad Litem, Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee. No. 89-55390. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 5, 1990.Decided Aug. 13, 1991. Michael W. McCann, Cappello & Foley, Santa Barbara, Ca...
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944 F.2d 466 Nell A. CAMMACK; Genie Lucas; Douglas Paul Root; CarolynL. Stapleton; Michele Wallace, Plaintiffs-Appellants,v.John W. WAIHEE, in his capacity as Governor of the State ofHawaii; Alfred Lardizabal, in his capacity as Director ofPersonnel Services of the State of Hawaii; Frank F. Fasi,in his capacity as Mayor of the City & County of Honolulu;Jeremy Harris, in his capacity ...
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54 Cal.3d 82 (1991) 813 P.2d 1335 284 Cal. Rptr. 305 In re JAMES F. HORTON II on Habeas Corpus. Docket No. S012531. Supreme Court of California. August 12, 1991. *86 COUNSEL Altshuler & Berzon, Altshuler, Berzon, Nussbaum, Berzon & Rubin, Michael Rubin and Marsha S. Berzon for Petitioner. John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Richard B. Iglehart, Chief Assistant At...
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Opinion The issue in this case is whether an unrecorded will can sever a joint tenancy. We hold it cannot. Background On August 12, 1969, Vonda B. England (Vonda) and her husband James H. England (James) became joint tenants of real property located at 600-602 North Parkman Avenue in Los Angeles (the property). James died on August 26, 1989, leaving behind the following handwritten will: ...
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Opinion Plaintiffs Hiroko Sugimoto et al. and Doreen Schoenberg et al. appeal the orders dismissing without prejudice their actions against defendants Exportadora de Sal, S.A. de C.V. (Exportadora) et al. following the removal of the actions to federal court. 1 We reverse. Factual and Procedural Background On September 30, 1987, a Cessna aircraft enroute to Tiajuana f...
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Opinion In the published portion of this opinion we conclude that a defendant in a criminal proceeding, who becomes indigent after retaining defense counsel, is not necessarily denied effective representation by reason of a trial court decision not to accord appointed status to his counsel in order to assure that the attorney is paid. We do this in the context of attorneys who are willing...
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941 F.2d 999 UNITED STATES of America, Plaintiff-Appellee,v.Joseph B. McCLELLAND, Defendant-Appellant. No. 90-10091. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 8, 1991.Submission Withdrawn May 20, 1991.Resubmitted Aug. 6, 1991.Decided Aug. 14, 1991. Thomas C. Bradley and N. Patrick Flanagan, III, Asst. Federal Public Defenders, Reno, Nev., f...
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Opinion Appellant Ramon Vega Limones was charged with (I) possession or purchase of cocaine for sale, in violation of Health and Safety Code section 11351, (II) driving an unregistered motor vehicle in violation of former Vehicle Code section 4000, subdivision (a), and (III) failure to provide proof of financial responsibility for the vehicle in violation of former Vehicle Code section 16028, s...
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Opinion This appeal raises questions concerning the validity of a conditional use permit and negative declaration of environmental impact issued in connection with a religious organization’s application to convert a single-family residence into a neighborhood synagogue with associated uses. The appeal is taken by real party Chabad of North Bay, Inc. (Chabad), from a judgment granting a wr...
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*154 Opinion Defendant was charged as follows: counts I and II—inflicting corporal injury on his spouse (Pen. Code, § 273.5, subd. (a)) 1 and count III—assault with a deadly weapon (§ 245, subd. (a)(1)). On August 8, 1989, the court allowed the People to amend the information to allege defendant personally used a firearm in the commission of count III (§ 12022.5). On that same date, the c...
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942 F.2d 629 ALAMO RENT-A-CAR, INC., Plaintiff-Appellant,v.CITY OF PALM SPRINGS, Defendant-Appellee. No. 89-55862. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 4, 1990.Decided Aug. 15, 1991. Shirley M. Hufstedler, Hufstedler, Kaus & Beardsley, Los Angeles, Cal., for plaintiff-appellant. Glen Tucker, Clausen & Campbell, Los Angeles...
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765 F.Supp. 617 (1991) PLANNED PARENTHOOD ASSOCIATION OF SAN MATEO COUNTY, Plaintiff, v. HOLY ANGELS CATHOLIC CHURCH, Northern California Operation Rescue, James Robinson, Dorothy Ann Connolly, Charles Metzger, Nancy Murray, and Does 1 through 100, Defendants. No. C-91-0580 SAW. United States District Court, N.D. California. May 29, 1991. *618 McCutchen, Doyle, Brown & Enersen, William D. Kis...
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Opinion —George Horeczko (appellant) appeals from a judgment of the superior court which denied his petition for a writ of administrative mandamus directing the State Board of Registration for Professional Engineers and Land Surveyors (the Board) to approve his application for permission to use the title “geotechnical (soils) engineer.” We have examined the statutory scheme under which his appl...
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Opinion After a jury convicted defendant of writing checks with insufficient funds (Pen. Code, § 476a, subd. (a)), the trial court suspended *218imposition of sentence and granted her probation. Among the terms of defendant’s probation were a reporting requirement, payment of restitution and a prohibition against defendant maintaining a checking account. A petition for revocation of probation was ...
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Opinion Appellant Commissioner of Insurance of the State of California (Commissioner) appeals from a judgment granting respondent National Indemnity Company (National) a peremptory writ of mandamus. The issue is whether Insurance Code section 1861.03, subdivision (c)(1), 1 which restricts an insurer’s right to cancel and to refuse to renew “automobile insurance,” applies to commercial motor v...
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54 Cal.3d 105 (1991) 813 P.2d 1348 284 Cal. Rptr. 318 MYRETTA ADAMS, as Conservator, etc., Plaintiff and Respondent, v. CLIFFORD MURAKAMI, Defendant and Appellant. Docket No. S003530. Supreme Court of California. August 15, 1991. *108 COUNSEL Kirtland & Packard, Horvitz, Levy & Amerian, Horvitz & Levy, Barry R. Levy, Ellis J. Horvitz, S. Thomas Todd, Loren Homer Kraus, Greines, Martin...
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Opinion In this appeal, we are asked to determine whether a deed executed in 1895 by appellants’ ancestor in favor of respondent’s predecessor in interest constitutes a grant of land in fee simple or merely the conveyance of an easement for the operation of a railroad. If the conveyance *179 was of an easement only, we are also asked to determine whether respondent acquired f...
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941 F.2d 1010 INTERSTATE MARKINGS, INC., a Florida corporation, Plaintiff-Appellant,v.MINGUS CONSTRUCTORS, INC., an Arizona corporation, et al.,Defendant-counter-plaintiff-Appellee,Aetna Casualty and Surety Company, Inc., a Connecticutcorporation, et al., Defendant-counter-claimant-Appellant. No. 89-16706. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 10,...
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942 F.2d 630 22 Bankr.Ct.Dec. 6, Bankr. L. Rep. P 74,201 In re ELM INN, INC., Debtor.Eldon ANDERSON; Shirley Anderson, Appellants,v.ELM INN, INC.; Continental Savings of America, Appellees. No. 89-16355. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 13, 1991.Decided Aug. 16, 1991. Philip Keith, Amen & Keith, San Francisco, Cal., for ...
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Opinion Michele Cox appeals from a summary judgment and judgment of dismissal granted in favor of the municipal court, North County Judicial District (District), on her first amended complaint for damages arising from her alleged wrongful termination from employment with District as a deputy clerk. 1 Although her amended complaint alleged four causes of action, her appellate reply brief clari...
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*235 Opinion Gary Neal Johnson appeals a judgment of conviction entered after severed trials on charges of murder and kidnapping, with allegations of firearm use, prior convictions, and special circumstances. In the first trial, the jury found defendant guilty of the second degree murder of Adrianne Gilliam, who disappeared in June 1979. In the second trial, concerning ...
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Opinion The petition for writ of mandate, filed on February 5, 1991; the opposition, filed May 10, 1991; the supplemental memorandum of points and authorities in support of petition, filed May 10, 1991; response to the supplemental memorandum of points and authorities, filed May 30, 1991; the request to dissolve stay or, in the alternative, petition for writ of *271 habeas co...
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Defendant Ramiro Oliveros-Orosco appeals the denial of his motion to withdraw his guilty plea and his sentence. He argues that this court’s decision in United States v. O’Neal, 910 F.2d 663 (9th Cir. 1990), handed down after Oliveros-Orosco’s plea but before his sentencing, 1 provided a compelling ground for withdrawal of the plea agreement. As to his sentence, Olive-ros-Orosco challenges the...
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Cherie L. Tatarka, natural mother and guardian ad litem of claimants, Jocelyn and Jessica Weatherby, seeks review of the district court’s order affirming the Secretary of Health and Human Services’ (Secretary) decision to deny surviving child’s social security insurance benefits to her dependent children, following the death of their stepfather. We must decide two questions in this case: First. Ar...
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This case has been remanded by the Supreme Court for our reconsideration in light of its recent decision in Board of Trustees of State University of New York v. Fox, 492 U.S. 469, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989). When the matter was last before us, we held that two city ordinances prohibiting uninvited door-to-door solicitation violated the first amendment. Project 80’s,...
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Plaintiffs, who are applicants for or recipients of Aid to Families with Dependent Children, Food Stamps, or Medicaid, brought this class action in the United States District Court for the District of Oregon against Kevin Concannon as Director, Oregon Department of Human Resources’ and Freddye Webb-Petett1 as Administrator of the Department’s Adult and Family Services Division. Plaintiffs sought d...
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Opinion Appelant Cottrell Antoine Williams appeals from the judgment convicting him of sale of a controlled substance to a minor (Health & Saf. Code, § 11353), 1 furnishing a controlled substance (§ 11352), and possession of cocaine base for sale (§ 11351.5). Appellant contends that the trial court committed reversible error in (1) failing to give a special instruction regardin...
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Opinion Defendant Moises Aceves (Aceves) appeals from the summary judgment entered in favor of the Aetna Casualty & Surety Company (Aetna) in Aetna’s action for declaratory relief. The judgment established that Aetna had no duty to defend or indemnify Aceves’s employer with respect to injuries Aceves suffered in the course and scope of his employment. Aceves argues on appeal that (1) the ...
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Opinion We consider the recommendation of the Review Department of the State Bar Court to revoke petitioner’s probation for failing to comply with our order in a prior disciplinary matter (Bar Mise. No. 5066). After considering the evidence and petitioner’s contentions, we adopt the recommendation of the review department. I. Findings of Fact A. Previous discipline Petitioner was admitted to the ...
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Opinion Plaintiffs Thomas E. Rose and Beverly J. Todd appeal from a judgment dismissing their action against defendants Daniel Robert Scott and Novella Simonson for failure to bring the action to trial within the time prescribed by law. (Code Civ. Proc., § 583.360.) 1 Based on the enactment of section 583.340 and the Law Revision Commission comment thereto we reverse the judgment. Procedura...
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Opinion Defendant and appellant Robert C. is the father of minors Travis C. and Seth C., dependents of the Riverside County Juvenile Court. The boys were five and three years old, respectively, when the Riverside *285 County Department of Public Social Services (DPSS) filed a petition seeking the Riverside County Juvenile Court’s protection on their behalf, pursuant to Welfare and Institution...
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ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court has reviewed the First Amended Complaint, all of the records and files herein and the attached Reports and Recommendations of the Magistrate Judge. Objections to the Report and Recommendation have been filed herein. Having made a de novo de...
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*615OPINION This is an appeal from an order denying appellant’s motion for restriction of debt- or’s use of cash collateral in the form of rents and for adequate protection. The bankruptcy court denied the motion and ordered that accumulated net rents be turned over to the trustee without restriction or condition as to use. We reverse. FACTS AND PROCEDURAL BACKGROUND Debtor and appellee Tucson In...
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ORDER The opinion filed in this case on March 29, 1990, Pereira v. U.S. Postal Service, 899 F.2d 861 (9th Cir.1990), is ordered withdrawn. The panel has voted to deny appellant’s petition for petition for rehearing and to reject the suggestion for rehearing en banc. The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear...
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943 F.2d 996 56 Fair Empl.Prac.Cas. (BNA) 1183,57 Empl. Prac. Dec. P 40,951, 60 USLW 2208,14 Employee Benefits Cas. 1120 AMERICAN ASSOCIATION OF RETIRED PERSONS; Margaret J.Jashni; Marigo K. Merrick; Howard E. Moore, etal., Plaintiffs-Appellees,v.FARMERS GROUP, INC., and its affiliated companies; FarmersNew World Life Insurance Company; the Ohio State LifeInsurance Company; Investors...
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We consider the limits of mandatory federal court deference to Indian tribal courts. I The tortuous history of this and related litigation graces the pages of numerous case reporting systems, including the Indian Law Reporter, the collected cases of the Interior Board of Indian Appeals, the Federal Supplement, and our own Federal Reporter. What follows is a synopsis. A On July 24, 1984, appellant ...
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This case involves a long-standing dispute over rights to use property and the right to regulate its use. Donald C. McDougal, Joyce R. McDou-gal, and Donald C. McDougal, Jr. have sued the County of Imperial for civil rights violations under 42 U.S.C. §§ 1983 & 1985(3) and for inverse condemnation. The district court dismissed their complaint under Fed.R.Civ.P. 12(b)(6), holding that the § 1983 and...
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MEMORANDUM AND ORDER I. BACKGROUND Plaintiffs are California recipients of Aid to Families with Dependent Children (“AFDC”) who need child care in order to participate in educational or training activities likely to provide them opportunities to secure employment and remove themselves from the welfare rolls. Defendants include the California Department of Social Services (“DSS”), the...
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Opinion Defendant Denny Mickle was convicted of one count of first degree murder (Pen. Code, § 187)1 with personal use of a knife (§ 12022, subd. (b)), and arson (§ 451, subd. (b)). Under the 1978 death penalty law, the jury found true a special circumstance that the murder occurred while defendant was engaged in the commission of a lewd and lascivious act upon a minor. (§ 190.2, subd. (a)(17)(v)...
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Mark Wayne Kelso pleaded guilty to conspiracy to possess a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and § 846. He appeals the sentence imposed under the Sentencing Guidelines (“Guidelines”). We have jurisdiction under 28 U.S.C. § 1291 and reverse. I. Facts On December 7, 1989, Border Patrol agents requested to search a pickup driven by codefendant J...
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Anthony Barnes filed a state court action under the Montana Wrongful Discharge from Employment Act, Mont. Code Ann. §§ 39-2-901 et seq., (“WDA”), in response to his termination by Stone Container Corporation (“Stone”). Stone removed the action to the District Court for the District of Montana and filed a motion for summary judgment which was denied by the court. Because of the import...
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942 F.2d 694 Russell ERICKSON; Beth Erickson; Kirk Erickson,Plaintiffs-Appellants,v.DESERT PALACE, INCORPORATED; Caesars Palace, a Nevadacorporation; Caesars Palace Corporation, a Delawarecorporation; Donald Abrahamson; Marian Vince, formerlyknown as Marian Fourno; State of Nevada; Nevada GamingControl Board, Defendants-Appellees. No. 89-16053. United States Court of Appeals,Ni...
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Robert Singh Mai appeals his conviction of four counts of tax evasion in violation of 26 U.S.C. § 7201. He alleges that the district court failed properly to instruct the jury on the “affirmative act” requirement of § 7201. Mai’s additional allegations of error are based on his contention that *684 § 7201 proscribes two separate and distinct offenses: the evasion of the assessment of tax and th...
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943 F.2d 1007 33 Fed. R. Evid. Serv. 1431 UNITED STATES of America, Plaintiff-Appellee,v.Walker Bennett MONROE, Defendant-Appellant. No. 89-50597. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 14, 1991.Decided Aug. 21, 1991. John J. Cleary, Cleary & Sevilla, San Diego, Cal., for defendant-appellant. Edward P. Allard, III, Asst. U.S...
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Opinion Plaintiff has appealed from the order of April 20, 1989, granting defendant Anthony Van Diest’s motion to dismiss brought under sections 583.210 and 583.250 of the Code of Civil Procedure. The order of April 20, 1989, is a nonappealable order. The actual judgment of dismissal was ordered May 5, 1989, and so we shall deem the appeal to have been taken from the judgment. One of the grounds ...
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Opinion Burbank-Glendale-Pasadena Airport Authority (Authority) appeals from judgment (1) granting Robert R. Hensler’s motion for peremptory writ of mandate for violation of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq., hereinafter CEQA) asserted in connection with Hensler’s cross-complaint for writ of mandate for violations of CEQA, in Authority’s action...
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Opinion Appellant and defendant Arthur Newman appeals from his conviction following a jury trial of submitting a false or fraudulent claim for payment of a loss (Ins. Code, § 556, subd. (a)(1))1 and preparing, making, or subscribing a writing in support of a false or fraudulent claim for payment of a loss (Ins. Code, § 556, subd. (a)(4)).2 Appellant contends that there was insufficient evidence to...
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Opinion Appellant American Bankers Insurance Company of Florida (American) was the surety on a bail bond. When the defendant failed to appear in court, the bail was forfeited. The defendant later reappeared in court but American took no steps seeking relief from the forfeiture within the statutory period. Summary judgment of forfeiture was then entered, and American moved to set the judgm...
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*392 Opinion In this case of first impression, we decide Probate Code section 6122, 1 California’s “revocation by divorce” statute, applies where the testator executes a will before marriage naming as beneficiary a person whom he or she later marries and divorces. We also conclude the trial court properly struck evidence of the decedent’s intent regarding disposition o...
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Co-defendants Mary Alfeche and William Bautista pled guilty to possession of methamphetamine with the intent to distribute. The district judge sentenced defendants to the 10-year minimum provided by 21 U.S.C. § 841(b)(1)(A)(viii) (1988). The defendants argue under the correct interpretation of this statute they did not possess enough methamphetamine to trigger the 10-year minimum. We affirm. I ...
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943 F.2d 1030 UNITED STATES of America, Plaintiff-Appellee,v.Ronald GAMBLE, Defendant-Appellant. No. 89-50067. United States Court of Appeals,Ninth Circuit. Submitted Aug. 13, 1991.*Decided Aug. 22, 1991. B. Kay Shafer, Chatsworth, Cal., for defendant-appellant. Spurgeon E. Smith, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. Appeal from the Un...
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943 F.2d 1020 60 USLW 2207 Randy GREENAWALT, Petitioner-Appellee,v.James R. RICKETTS, Director, Arizona DOC; DonaldWawrzaszek, Superintendent, ASP; Robert K.Corbin, Attorney General, State ofArizona, Respondents-Appellants. Nos. 88-1828, 88-1910. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 8, 1991.Decided Aug. 22, 1991. Bruce M. Ferg, A...
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*379 Opinion Appellant Elizabeth Getz appeals from a judgment denying her petition for a writ of mandate (Code Civ. Proc., § 1094.5) reviewing an administrative rent control decision of respondent rent stabilization department of respondent City of West Hollywood. Under “vacancy decontrol” provisions of respondents’ rent control ordinance and regulations, appellant, a landlo...
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*371 Opinion Kent Arthur Blackman appeals a summary judgment granted in favor of Great American First Savings Bank (Great American), stating it was not vicariously liable for injuries Blackman incurred when he was involved in a collision with Sue Petersen-Parker (Petersen), a Great American employee. At the time of the collision, Petersen was leaving the Great American parking lo...
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John L. Pascucci appeals his conviction following a jury trial for attempted extortion affecting interstate commerce, in violation of 18 U.S.C. § 1951(a) (attempted extortion charge), and transmitting in interstate commerce a communication threatening to injure the reputation of another, in violation of 18 U.S.C. § 875(d) (threat to reputation charge). He contends that, with respect to the attempt...
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943 F.2d 1041 James PETTAWAY, Petitioner-Appellant,v.Charles PLUMMER, Sheriff of Alameda County, Respondent-Appellee. No. 90-15469. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 11, 1991.Decided Aug. 23, 1991. Renee E. Torres, First District Appellate Project, San Francisco, Cal., for petitioner-appellant. Joan K. Haller, Deputy Atty. Gen....
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Plaintiffs-appellants J. Harlow Tucker and Turf Village, Inc. (collectively “Tucker”) appeal the district court’s judgment staying this diversity action pending resolution of matters involving First Maryland Savings & Loan (“FMSL”) that are ongoing in a special Maryland court. This lender liability action by Tucker against FMSL had been removed by FMSL from Arizona state court. We have jur...
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Boise Cascade fired Gary Smoot after Smoot threatened to harm one of his superiors. Smoot prevailed in this diversity action on his claim for breach of his employment contract. Boise Cascade appeals the district court’s judgment, various other rulings in favor of Smoot and the court’s award of attorney fees. Smoot cross-appeals the fee amount. This court has jurisdiction under 28 U.S.C. § 1291, a...
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942 F.2d 1421 CONSOLIDATED AMERICAN INSURANCE COMPANY,Plaintiff-Counter-defendant-Appellant,v.MIKE SOPER MARINE SERVICES, et al., Defendants,andCarl Mayerhoffer, individually and as Assignee of MichaelSoper, Defendant-Counter-Plaintiff-Appellee. No. 89-55929. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 6, 1990.Decided Aug. 23, 1991.As Amended. ...
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Fabio Jaramillo-Suarez (Suarez) appeals his conviction for conspiracy, in violation of 21 U.S.C. § 846, and possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Suarez contends that numerous evidentiary and procedural errors committed at trial warrant reversal of his conviction. We disagree and affirm. BACKGROUND In September 1986, agents from the Ca...
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Opinion On March 27, 1990, a petition was filed alleging that minor Jason J. came within the provisions of Welfare and Institutions Code section 602. 1 The petition charged minor with robbery (Pen. Code, § 211), with a special allegation that a principal was armed with a firearm in the commission of the offense (Pen. Code, § 12022, subd. (a)). Minor admitted the robbery, and on the People’s m...
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Opinion Plaintiff California Aviation, Inc. (CAI) appeals from the judgment dismissing its case entered following the trial court’s grant of defendant Arthur Leeds’s (Leeds) summary judgment motion. CAI filed a chapter 11 bankruptcy petition, and later sued Leeds, an attorney, for malpractice allegedly arising from his representation of CAI in an earlier case. Leeds successfully argued th...
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942 F.2d 1435 60 USLW 2218 Clifton REDMAN, Plaintiff-Appellant,v.COUNTY OF SAN DIEGO; Capt. Richard Beall; Lt. RobertWitcraft; Sgt. Dan Canfield; Deputy Gene Turner,and Does I through XX, Inclusive,Defendants-Appellees. No. 87-6139. United States Court of Appeals,Ninth Circuit. Argued En Banc and Submitted Oct. 11, 1990.Decided Aug. 26, 1991. William D. Daley, Mu...
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943 F.2d 1048 68 A.F.T.R.2d 91-5957, 91-2 USTC P 50,432,34 Fed. R. Evid. Serv. 86 UNITED STATES of America, Plaintiff-Appellee,v.Steven M. WOOD, Defendant-Appellant. No. 90-30211. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 8, 1991.Decided Aug. 26, 1991. Norman Sepenuk, P.C., Norman Sepenuk, Douglas Stringer, Portland, Or., for defendant-a...
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943 F.2d 32 HAVASUPAI TRIBE, a federally recognized Indian Tribe;Delmer Uqualla; Issa Uqualla; Clark Jack, Jr.;Rex Tilousi; Wayne Sinyella,Plaintiffs-Appellants,v.F. Dale ROBERTSON, in his official capacity as Chief, UnitedStates Forest Service; Sotero Muniz, in his officialcapacity as Regional Forester, Southwestern Region, UnitedStates Forest Service; Leonard Lindquist, in his officialc...
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Appellant Pension Trust Fund for Operating Engineers (“Trust Fund”) appeals the district court’s grant of summary judgment in favor of appellee Triple A Machine Shop, Inc. (“Triple A”). Trust Fund brought this action alleging that Triple A violated sections 502 and 515 of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1132 and 1145, and section 301 of the Labor Management R...
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Following a series of mergers and reorganizations, the Burlington Northern Railroad Company closed its railroad operations in Livingston, Montana. Appellants, who include both former Livingston employees and spouses of former employees, sued the Burlington Northern Railroad Company and Burlington Northern, Inc. (collectively, BN) for damages arising out of the closure. They appeal the dismissal o...
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Erwin & Erwin, P.C., a law firm, (the Erwin law firm) appeals from the reversal, by the district court, of the bankruptcy court’s order allowing the Erwin law firm’s unsecured claim for attorneys’ fees against the debtor, Marquam Investment Corporation (Marquam). The Erwin law firm seeks reversal on the ground that the district court erred in concluding that the bankruptcy court’s finding, that...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 672 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 673 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY...
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Opinion Defendant and appellant Raekubian Alexander Barrow (appellant) was charged with robbery (Pen. Code, § 211). The information also alleged that appellant had one serious prior felony conviction within the meaning of Penal Code section 667 and one prison prior felony conviction within the meaning of Penal Code section 667.5, subdivision (b). A jury found him guilty of second degree r...
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Opinion In this case we must determine if the parties agreed to arbitrate a dispute involving the firing of a deputy public defender who is covered by a memorandum of understanding between his union and the county. We conclude that as an “at-will” employee his dismissal is not arbitrable. Plaintiff, the California Teamsters Public, Professional and Medical Employees Union, Local 911A (the Union),...
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Opinion Petitioner requests that we issue a peremptory writ of mandate, under Code of Civil Procedure section 400, directing respondent court to set aside and vacate its order transferring the instant action to San *478 Diego County. We conclude that where venue is proper at the residence of a properly joined defendant, a trial court order changing venue to a county which has...
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Opinion Plaintiff and appellant Merced County Mutual Fire Insurance Company (Merced Mutual) appeals from a judgment of dismissal entered after sustaining without leave to amend defendant and respondent State of California’s (State) demurrer to the first amended complaint. The State demurred to the original complaint on the grounds it failed to include an indispensable party and faile...
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Keith Jerome Brown appeals a judgment entered upon a jury verdict, and sentence of 123 months in prison plus five years supervised release. He argues that the district court erred in: (1) denying his motion to determine competency; (2) denying his request for substitute counsel; and (3) enhancing his base offense level for bank robbery based on discharge of a weapon. We affirm the conviction, but...
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943 F.2d 1065 138 L.R.R.M. (BNA) 2209, 119 Lab.Cas. P 10,896 DENNIS L. CHRISTENSEN GENERAL BUILDING CONTRACTOR, INC., aCalifornia corporation, Plaintiff-Appellee,v.GENERAL BUILDING CONTRACTOR, INC., a California corp., Plaintiff,v.SOUTHERN CALIFORNIA CONFERENCE OF CARPENTERS, A LaborOrganization, Defendant-Appellant. No. 90-55839. United States Court of Appeals,Ninth Circuit. ...
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943 F.2d 1056 1992 A.M.C. 328 TODD SHIPYARDS CORPORATION, Plaintiff-Appellee,v.CUNARD LINE, LTD., and M.V. SAGAFJORD, her engines, boilers,etc., Defendant-Appellant.CUNARD LINE, LTD., and M.V. SAGAFJORD, her engines, boilers,etc., Plaintiff-Appellant,v.TODD SHIPYARDS CORPORATION, Defendant-Appellee. Nos. 89-16607, 89-16610. United States Court of Appeals,Ninth Circuit. Argued a...
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943 F.2d 1070 UNITED STATES of America, Plaintiff-Appellee,v.Brent Paul SWANSON, Defendant-Appellant. No. 90-10085. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 8, 1991.Decided Aug. 27, 1991. Dennis Jones, Phoenix, Ariz., for appellant. Janet L. Patterson and Darcy A. Cerow, Asst. U.S. Attys., Washington, D.C., for appellee. Appeal...
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233 Cal.App.3d 699 (1991) 284 Cal. Rptr. 555 M.B., Plaintiff and Appellant, v. CITY OF SAN DIEGO, Defendant and Respondent. Docket No. D012036. Court of Appeals of California, Fourth District, Division One. July 30, 1991. *702 COUNSEL Liebman, Reiner & McNeil and Joseph R. Zamora for Plaintiff and Appellant. John W. Witt, City Attorney, Eugene P. Gordon, Chief Deputy City Attorney, and Penny ...
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Opinion In this case we consider the authority of the California State Personnel Board (Board) to receive postdismissal evidence of rehabilitation in mitigation of the discipline imposed by the appointing power. We hold that the Board has the authority to receive such evidence and in appropriate cases to reduce the discipline in light of this mitigating evidence. The Department of Pa...
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The estate and heirs of William McAllis-ter appeal from the district court’s dismissal of their wrongful-death action under the Feres doctrine. See Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). We must affirm. I On New Year’s Eve five years ago, Private Leon Tarver attacked, stabbed, and killed Lieutenant Colonel William McAllister near...
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943 F.2d 1097 Doris MEUSY, Plaintiff-Appellee,v.MONTGOMERY WARD LIFE INSURANCE COMPANY, Defendant-Appellant. No. 90-35762. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 11, 1991.Decided Aug. 28, 1991. Robert J. Curran and Michael R. Rayton, Ryan, Swanson & Cleveland, Seattle, Wash., for defendant-appellant. John P. Lynch, Seattle, Wash...
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943 F.2d 1088 56 Fair Empl.Prac.Cas. (BNA) 1257,57 Empl. Prac. Dec. P 40,946Theresa McINNES, Plaintiff-Appellant,v.STATE OF CALIFORNIA, California Department of ConsumerAffairs, Defendants-Appellees. No. 89-16242. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 14, 1991.Decided Aug. 28, 1991. James B. Macy, Sacramento, Cal., for plaintiff-appellan...
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943 F.2d 1080 Nuclear Reg. Rep. P 20,541, 33 ERC 1947 STATE OF NEVADA; Richard H. Bryan, Governor of Nevada;Paul Laxalt, United States Senator; Chic Hecht, UnitedStates Senator; Barbara Vucanovich, United StatesRepresentative in Congress; Harry Reid, United StatesRepresentative in Congress, Petitioners,v.James D. WATKINS, Secretary of the United States Departmentof Energy,* Respondent,...
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Opinion Xerox Corporation appeals the trial court’s order granting attorney’s fees to respondents Thomas E. and Mary Beth Kavanaugh. We conclude that Xerox was not a passive beneficiary of the litigation and therefore the award of attorney’s fees pursuant to Labor Code section 3856 1 was improper. The judgment is reversed. Facts and Procedural Background On May 23, 19...
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Opinion On April 17, 1990, a complaint (No. 4345-90) was filed in the Borden Judicial District of Madera County charging defendant with burglary in violation of Penal Code section 459. 1 On May 2, 1990, defendant was sentenced to 16 months in state prison in an unrelated case (Super. Ct. No. 8834). *591 On October 10, 1990, defendant entered a conditional plea of guilty to violation of ...
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*597 Opinion We hold that a knife with a handle designed to fit in the palm of the hand, with a two- and one-fourth-inch blade protruding between the middle fingers, is a “dirk or dagger” within the meaning of Penal Code section 12020, subdivision (a) (hereafter section 12020(a)). We disagree with In re Conrad V. (1986) 176 Cal.App.3d 775 [222 Cal.Rptr. 552], which hel...
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942 F.2d 1480 ELKS NATIONAL FOUNDATION, a legal entity, et al., Plaintiff-Appellant,v.Fred J. WEBER, et al.; Shell Oil Company; Continental OilCompany; Robert P. Schwinn, Individually and asSuccessor Liquidating Trustee ofMcDonald & Eide, Inc.,Defendants-Appellees. No. 90-35799. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 11, 1991.Decided Aug. 29,...
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943 F.2d 1100 STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff-Appellant,v.Ronald J. NYCUM, Jo Ellen Kauble, Norm Kauble, and Jo EllenKauble and Norm Kauble as guardian ad litem forJaime N. Kauble, a minor, Defendants-Appellees. No. 90-15706. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 13, 1991.Decided Aug. 29, 1991. Gail Y. Norton, Ropers, Maj...
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Opinion Plaintiffs, individual insurance agents and brokers and their trade associations, appeal from a judgment denying the relief sought in a petition for writ of mandate and complaint for declaratory relief. This appeal concerns a provision of Proposition 103, an initiative measure adopted at the November 8, 1988, General Election. The trial court held the provision, which expressly re...
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*638 Opinion Petitioners/appellants Howard Mann, Eugene Rosenfeld, and the Andrex Group (collectively as appellants) appeal from the judgment denying their petition for a writ of mandate. (Code Civ. Proc., § 1085.) Appellants had petitioned to require respondents the Community Redevelopment Agency of the City of Hawthorne (Agency) and the City of Hawthorne (City) to set aside their certificat...
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943 F.2d 1117 Annie M. BOLTON, Plaintiff-Appellant,v.CONSTRUCTION LABORERS' PENSION TRUST FOR SOUTHERNCALIFORNIA; Louie Bravo; Donna Davidson; RogerJaska; Robert Kruse; Armando Lopez;William Middleton, Defendants-Appellees. No. 90-55654. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 4, 1991.Decided Aug. 30, 1991. Ronald Dean, Pacific Palisa...
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We are asked to decide whether the definition of “self-employed retirement plans” under Cal.Civ.Proc.Code § 704.115 includes corporate plans in which one person controls the corporation and the plan. The district court held that it does. We disagree and reverse. *1115 I Ceferino G. Cheng, M.D., was the sole shareholder, director, and chief executive officer of Ceferino G. Cheng, M.D., Inc. ...
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943 F.2d 1107 Kenneth RICHARDSON; Norman J. Trapp, Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee. Nos. 90-35423, 90-35424. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 5, 1991.Decided Aug. 30, 1991. David E. Williams, Critchlow, Williams & Schuster, Richland, Wash., for plaintiff-appellant Richardson. Gregg L. ...
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Opinion This petition challenges an order enjoining petitioner from using in any way the sum of $125,000 held in any bank account. We conclude that the court exceeded its authority. Petitioner Thaddeus C. Doyka borrowed $125,000 from the Lord Trust through its trustee John A. Lord, upon a promise to secure the loan with a second deed of trust on property at 2572-2588 Pine Street in San Franci...
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Opinion Defendant Mario Steven Howington was charged by information of one count of sale of “A Controlled Substance, to Wit: Rock Cocaine, in Violation of Health and Safety Code Section 11352, A FELONY.” 1 The jury returned a verdict finding defendant “guilty of Felony, to wit: Sell Narcotic Controlled Substance, in violation of Section 11352 of the Health and Safety Code, as charged in the f...
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Opinion Pursuant to section 12987 of the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) (the act), the Fair Employment and Housing Commission (the commission) is authorized to order a respondent who is found to have violated the housing provisions of the act to pay “punitive damages in an amount not to exceed one thousand dollars ($1,000) . . . and the payment of actual d...
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Opinion In this case, we hold that a judgment debtor’s interest in a partnership (meaning the right to share in the profits and surplus) may be foreclosed upon and sold, even though other partners do not consent to the sale, provided the foreclosure does not unduly interfere with the partnership business. Judgment debtor John B. Anderson (Anderson) appeals from the trial court’s orde...
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ORDER Petitioner Russell Coleman was convicted of first degree murder and sentenced to death in 1981. His conviction and sentence were affirmed in their entirety by the Supreme Court of California in 1988. People v. Coleman, 46 Cal.3d 749, 251 Cal.Rptr. 83, 759 P.2d 1260 (1988). That court then denied his petition for habeas corpus without comment in 1990. 1 Pursuant to 28 U.S.C. § 2254, ...
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Opinion In our initial opinion in this case we affirmed an order granting summary judgment in favor of the defendants, an employment agency and the owner of the agency. The Supreme Court granted plaintiff Malcolm Carmichael's petition for review and the Supreme Court then transferred review to this court with directions to vacate our prior decision and reconsider the cause in light of Rojo v....
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This appeal presents the issue whether the Employee Retirement Income Security Act of 1974 (“ERISA”) preempts a California statute that grants an employee trust, established pursuant to a collective bargaining agreement, a mechanic’s lien to collect unpaid employer contributions due for employee fringe benefits. After finding that ERISA preempted the state lien statute, the district court dismisse...
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943 F.2d 1121 UNITED STATES of America, Plaintiff-Appellant,v.ONE BELL JET RANGER II HELICOPTER, Identification No. N8190j(Registered to Sam Jaksick, 1013 Lakeshore Drive,Indian Village, Nevada), Defendant,andGreat Western Helicopters, Inc., Claimant-Appellee. No. 89-35551. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 8, 1990.Decided Sept. 3, 1991. ...
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944 F.2d 472 Bankr. L. Rep. P 74,298UNITED STATES of America, Plaintiff-Appellee,v.Shahab NAZIFPOUR, Defendant-Appellant. No. 90-30399. United States Court of Appeals,Ninth Circuit. Submitted Aug. 23, 1991.*Decided Sept. 3, 1991. Harvey Richman, Coeur d'Alene, Idaho, for defendant-appellant. Joanne P. Rodriguez, Asst. U.S. Atty., Boise, Idaho, for plaintiff-appell...
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54 Cal.3d 326 (1991) 815 P.2d 1308 285 Cal. Rptr. 66 FRANCES KINLAW et al., Plaintiffs and Appellants, v. THE STATE OF CALIFORNIA et al., Defendants and Respondents. Docket No. S014349. Supreme Court of California. August 30, 1991. *327 COUNSEL Stephen D. Schear, Stephen E. Ronfeldt, Armando M. Menocal III, Lois Salisbury, Laura Schulkind and Kirk McInnis for Plaintiffs and Appellants. *328 Cathe...
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Opinion This is an appeal by T.R.E.E.S. (Timber Resources Environmental Education Service, an unincorporated association) from a judgment of dismissal entered after the superior court sustained, without leave to amend, demurrers by the California Department of Forestry and Fire Protection (department) and Louisiana-Pacific Corporation (L-P) to T.R.E.E.S.*s third amended petition for writ of man...
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Opinion In this case we resolve several issues presented by the adoption on June 5,1990, of an initiative measure designated on the ballot as Proposition 115 and entitled the “Crime Victims Justice Reform Act.” Petitioner raises various challenges under the federal and state Constitutions to the provisions of the measure authorizing reciprocal discovery in criminal cases. (See also Raven v. Deukme...
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Opinion Statement of the Case Plaintiff Lawrence Demkowski filed an action against defendant Soon Keun Lee for personal injuries he suffered when her car collided with his. Demkowski’s employer, the City of San Jose (City), filed a complaint in intervention against Lee to recover the workers’ compensation benefits it had paid Demkowski as a result of the accident. After a trial, ...
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Opinion Frank V. appeals the judgment declaring him a ward of the court, contending the trial court improperly denied his motion to suppress *697evidence and restricted his right to association by imposing an overbroad condition of probation. We affirm. About 9:45 p.m., Officers Michael Luke and Gary Kirby were dispatched to investigate a report of reckless motorcycle driving on a street in an act...
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Opinion Petitioner was denied admission to practice law after a hearing panel of the State Bar determined that he had “not proven that he is possessed of good moral character” within the meaning of rule X of the Rules Regulating Admission to Practice Law in California. The review department affirmed that ruling without dissent, two members abstaining. *312 Our review of the e...
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Opinion Ruben Felix Preciado has, it appears, selected a career. He was found guilty of first degree burglary with four similar prior convictions and sentenced to twenty-four years in prison. Defendant claims insufficient evidence supports the conviction or, failing that argument, it must be reduced to the second degree because the jury failed to specify the degree of the burglary. We think not.1 ...
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Opinion The defendants, Charles and Marilyn Telfer, appeal from their respective convictions of various drug-related offenses. We affirm in part and reverse in part. Factual and Procedural Background While executing a search warrant at the defendants’ residence in Apple Valley on August 24, 1988, deputy sheriffs of the County of San Bernardino discovered approximately two pounds...
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943 F.2d 1131 Robert HAPHEY and Carl J. Bondietti, Plaintiffs-Appellants,v.LINN COUNTY; Linn County Sheriff's Office; Art Martinak,Sheriff, acting in his official and individualcapacity, Defendants-Appellees. No. 90-35226. United States Court of Appeals,Ninth Circuit. Sept. 3, 1991. Before WALLACE, Chief Judge, BROWNING, HUG, TANG, SCHROEDER, FLETCHER, FARRIS, PREGERSO...
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54 Cal.3d 288 (1991) 814 P.2d 1328 285 Cal. Rptr. 86 DIETER NICKELSBERG, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and LOS ANGELES UNIFIED SCHOOL DISTRICT, Respondents. Docket No. S013121. Supreme Court of California. August 30, 1991. *291 COUNSEL William A. Herreras and John W. Messer for Petitioner. Rucka, O'Boyle, Lombardo & McKenna and N. Michael Rucka as Amici Curiae on behalf o...
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*730 Opinion I Introduction Petitioner Coca-Cola Bottling Company of Los Angeles (Coca-Cola), one of the defendants in case No. BCV 3431, James E. Jones et al. v. County of San Bernardino et al., has petitioned us for a writ of mandate directing the superior court to vacate its order denying Coca-Cola’s motion for summary judgment and awarding sanctions against Coca-Col...
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Opinion Gilberto Sanchez Villada, Catalina Harvey, and Fabio Leon Gil, along with defendant Maria Otilia Villada, were charged in a criminal information with conspiracy to sell or transport cocaine and conspiracy to possess cocaine for sale. (Pen. Code, § 182, subd. (a)(1); Health & Saf. Code, §§ 11352 and 11351). The information charged one or more of the defendants with 27 overt acts in...
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Brian Barlow sued George Ground, other San Diego police officers and the City of San Diego. He alleged violations of constitutional rights under 42 U.S.C. § 1983 as well as state law claims of assault and battery, false arrest, and negligent supervision. The district court granted summary judgment in favor of the defendants. We reverse in part and affirm in part. I On June 7, 1986, Br...
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944 F.2d 476 34 Fed. R. Evid. Serv. 266 DANG VANG; Yia Moua; Yang Xiong; Maichao Vang, Plaintiffs/Appellees,v.VANG XIONG X. TOYED, individually and in his capacity asRefugee Counselor, Defendant/Appellant. No. 90-35254. United States Court of Appeals,Ninth Circuit. Argued and Submitted Jan. 10, 1991.Decided Sept. 5, 1991. Nancy L. Talner, Seattle, Wash., and Carl ...
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Pursuant to the mandate of the United States Supreme Court in County of Riverside v. McLaughlin, — U.S. -, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), the case is remanded to the district court for further proceedings consistent with the opinion of the United States Supreme Court. ...
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944 F.2d 475 UNITED STATES of America, Plaintiff-Appellee,v.Armando RUIZ-NARANJO, Defendant-Appellant. No. 89-10391. United States Court of Appeals,Ninth Circuit. Submitted Aug. 14, 1991*.Decided Sept. 5, 1991. Peter B. Keller, Law Offices of Keller & Postero, Tucson, Ariz., for defendant-appellant. Reese V. Bostwick, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-...
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944 F.2d 491 UNITED STATES of America, Plaintiff-Appellee,v.Viento Lynn CHILDS, Defendant-Appellant. No. 90-30429. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 9, 1991.Decided Sept. 6, 1991. Paul S. Petterson, Asst. Federal Public Defender, Portland, Or., for defendant-appellant. Leslie K. Baker, Asst. U.S. Atty., Portland, Or., for plain...
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*632 Opinion An insurance company defendant in an action for bad faith failure to contribute to a settlement asks us to protect it from disclosing to its insured the defendant’s reinsurance agreements and related documents and communications. We conclude that the superior court abused its discretion in ordering disclosure. We need not fully explain the underlying action. In brief, Fireman’s...
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944 F.2d 483 57 Empl. Prac. Dec. P 41,054, 7 IER Cases 462 Richard Neal SCHOWENGERDT, Plaintiff-Appellant,v.UNITED STATES of America; Department of the Navy; John F.Lehman, Jr., Sec. of the Navy; General DynamicsCorporation; C.W. Kessel; K.D. Tillotson; Carl W. Jensen;Richard S. Day, Defendants-Appellees.Richard Neal SCHOWENGERDT, Plaintiff-Appellant,v.UNITED STATES of America; Depa...
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David Payne appeals his conviction, following a jury trial, on four counts of carnal knowledge of a female under age 16. Payne challenges his conviction on numerous grounds. Specifically, Payne argues that the district court committed reversible *1462 error when it failed to instruct the sworn jury on the presumption of innocence; excluded evidence of other sexual acts of the victi...
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OVERVIEW Secured creditor Fireman’s Fund Mortgage Corporation (“FFMC”) appeals an order denying its motion for allowance of claim as filed against debtor Waymon Hob-dy (“Hobdy”). The bankruptcy court ruled that FFMC’s motion was an inappropriate means for contesting a provision relating to the claim in a confirmed Chapter 13 plan.1 We REVERSE. FACTS AND PROCEEDINGS BELOW Hobdy filed his Chapter 13...
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Opinion Police officers occupy a unique position of trust in our society. They are responsible for enforcing the law and protecting society from criminal acts. They are given the authority to detain and to arrest and, when necessary, to use deadly force. As visible symbols of that formidable power, an officer is furnished a distinctively marked car, a uniform, a badge, and a gun. Those who challe...
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MEMORANDUM AND ORDER I. PROCEDURAL AND FACTUAL BACKGROUND Plaintiff Motors Insurance Corporation (“Motors”) filed the underlying action seeking a declaration of its rights and obligations to defendants Patrick Michael Bodie and Teresa Bodie under an automobile liability insurance policy for an automobile accident which occurred on September 10, 1988 in Calaveras County California. Th...
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Opinion Defendant, Gregory Allen Ybarra, was convicted by jury of transportation of methamphetamine, possession of methamphetaminefor sale, possession of marijuana for sale and possession of psilocybin *792 mushrooms. The trial court sentenced him to the three-year middle term of imprisonment for the “transportation” conviction; the remaining counts were ordered stayed or imp...
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*785 Opinion Jose Morales Abarca was convicted of one count of residential burglary. He was sentenced to six years, to which ten years were added as the result of true findings on two charged prior serious felony convictions. We originally affirmed the conviction of residential burglary, but remanded for a hearing on the validity of the prior convictions and to reexamine the issue of custod...
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Opinion Penal Code section 1417.61 authorizes the destruction of any dangerous weapon used by a defendant in the commission of a crime or possessed by the defendant upon arrest. Unless interpreted otherwise, the section might bar a lawful owner from recovering a stolen gun. We agree with the Attorney General that the statute would offend due process if applied to bar a rightful owner from recoveri...
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DECISION AND ORDER RE MOTION FOR PRE-JUDGMENT INTEREST AND JUDGMENT This matter came on for hearing before the Court on the issue of prejudgment interest on August 12, 1991, following a jury trial and verdict for Golden State for $4.5 million. The trial followed the issuance of an opinion by the United States Supreme Court, Golden State Transit Corp. v. City of Los Angeles, 493...
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Opinion Defendant County of San Diego appeals a judgment after court trial favoring plaintiffs Elwyn Younker and Westfield Insurance Companies on their complaint to recover the amount paid in settlement of a claim against County employee Younker. We reverse the judgment. I Facts Elwyn Dean Younker was assistant fire chief of the Dehesa Volunteer Fire Department. Westfield was Younker’s pe...
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Opinion Deane Kay Scharles, an indigent conservatee represented by independent pro bono counsel, appeals an order denying her petition for rehearing of the reestablishment of her conservatorship and request for an independent medical examination at San Diego County (County) expense. She contends the court erred in denying her request for court-ordered funding to permit her to retain an in...
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Opinion Appellant Robert Byrd appeals after being convicted on one count of grand theft (Pen. Code, § 487, subd. 1), five counts of willfully passing insufficient fund checks (Pen. Code, § 476a, subd. (a)), and one count of petty theft (Pen. Code, § 484, subd. (a)). We affirm and remand for sentencing. Introduction Appellant’s convictions arose from his actions between August 2, 1987, and August 2...
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*810 Opinion I. Introduction The central issues posed by this appeal are whether plaintiff Tahoe Regional Planning Agency (TRPA) may compel the removal of defendants’ off-premise billboard signs pursuant to its sign ordinance which allows a five-year preremoval amortization period to recoup costs or whether it is (1) statutorily compelled to pay compensation for their remova...
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Opinion The sole issue presented herein is whether the Workers’ Compensation Appeals Board (Board) properly dismissed the application of petitioner, Joseph Fortich (applicant), in the absence of prior service of a notice of intention to dismiss allowing at least 15 days to show good cause why the case should not be dismissed (Cal. Code Regs., tit. 8, ch. 4.5, § 10780 (regulation 10780)). As we ...
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Opinion I Introduction Eduardo Gonzales appeals from a judgment entered on a jury verdict finding him guilty of possession of cocaine for sale (Health & Saf. Code, § 11351) and from his sentence to three years in state prison. His sole contention on appeal is his oral motion to suppress in the municipal court and his written motion in the superior court pursuant to Penal Co...
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MEMORANDUM OVERVIEW These are cross-appeals from an order holding that creditor Greyhound Real Estate Finance Company (“Greyhound”) has a perfected security interest in pre-bankrupt-cy revenues generated by two of debtor’s hotels, but that it has no security interest in the post-petition revenues. Greyhound appeals the order insofar as it deprives it of a security interest in the post...
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Opinion This case involves a dispute between cities and a county over the lifeblood of local governments: revenue. As a general rule, counties must share with their cities the fines and forfeitures collected upon convictions in criminal cases. (Pen. Code § 1463; further statutory references are to the Penal Code unless otherwise specified.) An exception exists for fines collected by ...
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*848 Opinion Defendant was charged with one count of discharging a firearm at an inhabited dwelling (Pen. Code, § 246), 1 with the added allegation that he had personally used a firearm within the meaning of section 1192.7, subdivision (c)(8), and one count of possession of a firearm by a felon (§ 12021). It was alleged that defendant had suffered one prior felony conv...
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*474 ORDER This matter came before the Court on July 29, 1991, on claimant Bruce R. Morgan’s motion to suppress, and the government's counter-motion to dismiss. Having carefully considered the parties’ written and oral arguments, and the entire record in this matter, the government’s motion to dismiss is denied, and claimant’s motion to suppress is granted in part, and denied in part, for the...
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MEMORANDUM AND ORDER The issue in this case is whether the Court may review and enforce an Administrative Order on Consent (“Consent Order”) entered into by plaintiff Fairchild Semiconductor Corporation (“Fairchild”) and defendant United States Environmental Protection Agency (“EPA”). The Consent Order, executed in August 1985, relates to the study of hazardous waste cleanup alternatives ...
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OPINION OVERVIEW This is a consolidated appeal by five sub*315scribers1 to a nationwide system of health maintenance organizations (“HMOs”) from an Order (“Order” or “Second Supplemental Order”) clarifying the automatic stay contained in Bankruptcy Code § 362.2 The Order provides that no subscriber may terminate or prevent the automatic renewal of its contract with the HMOs, or interfere with the...
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Opinion Statement of Case This case is a consolidated appeal and writ from an order of the Stanislaus County Juvenile Court setting a Welfare and Institutions Code section 366.26 hearing to determine whether parental rights should be terminated. Kahlen W., the minor daughter of Kathleen D. and Stephen W, is the subject of the controversy. Kahlen was removed from her parents’ care on July 1, 1989. ...
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944 F.2d 500 22 Bankr.Ct.Dec. 86, Bankr. L. Rep. P 74,291,15 UCC Rep.Serv.2d 1037 In re BERING TRADER, INC.; Kemp Pacific Fisheries, Inc., Debtors.PHILIP MORRIS CAPITAL CORPORATION, formerly known as PhilipMorris Credit Corporation, Appellant,v.BERING TRADER, INC., William Friedhoff, Jr., Trustee of theBering Trader, Inc., Bankruptcy Estate; ThomasHansen, Trustee of the Kemp PacificFish...
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944 F.2d 523 UNITED STATES of America, Plaintiff-Appellee,v.Gwynne JUDGE, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellant,v.Debra Ann Sonido BARON, aka Debbie A. Sonido aka Debra AnnSonido, Defendant-Appellee.James Vincent ALBERTINI, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.James Kanealii MULLER, Petitioner-Appellant,v.UNITED STATES of America, Res...
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944 F.2d 503 6 IER Cases 1324 AFGE LOCAL 1533, Pearl G. Ruchman, Charles Coates, ElainePosey, AFGE, AFL-CIO; National Federation of FederalEmployees (NFFE), and the National Federation of FederalEmployees Local 795; Metal Trades Department, AFL-CIO, Plaintiffs,andInternational Federation of Professional and TechnicalEngineers (IFPTE), AFL-CIO and CLC, Intervenor-Appellant,v.Richard B. CH...
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944 F.2d 497 UNITED STATES of America, Plaintiff-Appellee,v.Jose SANCHEZ, Defendant-Appellant. No. 90-50263. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 2, 1991.Submission Vacated April 22, 1991.Resubmitted July 17, 1991.Decided Sept. 10, 1991. Janet I. Levine, Michaelson & Levine, Los Angeles, Cal., for defendant-appellant. Jeffrey...
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Opinion I. Introduction In this case we hold that a county may adopt an ordinance prohibiting discrimination against those who undergo health testing which discloses an infectious disease, for the public health purpose of encouraging citizens to be tested without fear of discrimination in order to learn of the presence of the disease and prevent its transmission, even though the stat...
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Opinion Defendant was convicted in a jury trial of second degree robbery after he snatched a purse from a woman pedestrian on an Oakland street. In a trial by the court he was found to have two prior convictions. He was sentenced to prison for 13 years. On appeal, he makes two claims of error: (1) the trial court made improper comments to the jury and (2) the trial court improperly excluded an ite...
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Opinion Mary G. (mother) appeals from a juvenile court order terminating its jurisdiction over her daughter, Sarah M., and awarding the father, Douglas M., custody. She raises numerous claims of error in her effort to *917restore the juvenile court’s jurisdiction. We will conclude that while there was error, it was not prejudicial. We hold in juvenile dependency proceedings in which the court has ...
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944 F.2d 542 60 USLW 2235, 60 USLW 2250, 25Collier Bankr.Cas.2d 727,22 Bankr.Ct.Dec. 105, Bankr. L. Rep. P 74,293 In re Emilio J. LAGUNA, Jr.; Cynthia Laguna, Debtors.SHEARSON LEHMAN MORTGAGE CORPORATION, Appellant,v.Emilio J. LAGUNA, Jr.; Cynthia Laguna; Lawrence J. Loheit,Trustee, Appellees. No. 90-15715. United States Court of Appeals,Ninth Circuit. Argued and Submitted ...
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943 F.2d 1158 20 Fed.R.Serv.3d 619 Theodore Anderson RINEHART, Jr., individually, and asCo-Executor of the Estate of Theodore Anderson Rinehart,Sr.; Betty F. Rinehart, as Co-Executor of the Estate ofTheodore Anderson Rinehart, Sr., Plaintiffs-Appellants,v.Virgil H. WEDGE; Woodburn, Wedge, Blakey & Jeppson, aNevada corporation, Defendants-Appellees.Theodore Anderson RINEHART, Jr., ind...
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944 F.2d 536 INTERSTATE PRODUCTION CREDIT ASSOCIATION, Plaintiff-Appellant,v.FIREMAN'S FUND INSURANCE COMPANY, Defendant-Appellee. No. 90-35367. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 9, 1991.Decided Sept. 11, 1991. Barry P. Caplan and Richard G. Spier, Sussman, Shank, Wapnick, Caplan & Stiles, Portland, Or., for plaintiff-appellant. ...
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Appellant, Gary A. Newman, appeals from his criminal conviction for setting fire to lands within the Coronado National Forest in southern Arizona. He argues that he was prejudiced by testimony regarding his post-arrest silence. We agree and reverse Newman’s conviction. I. FACTS AND PROCEEDINGS BELOW On May 29, 1989, two Forest Service special agents (Boerman and McCormick) began surveillanc...
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Grayson, a former federal prisoner, brought a Bivens action against three prison officials seeking damages for an allegedly unlawful transfer between prison facilities. Facts Grayson spent twenty-nine days at Terminal Island Federal Correctional Institution (FCI) in the summer of 1984. As a result of his conviction for mail and securities fraud, he had become not only a federal prisoner, bu...
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944 F.2d 531 37 Cont.Cas.Fed. (CCH) P 76,170 OREGON NATURAL RESOURCES COUNCIL, Plaintiff-Counter-Defendant-Appellee,v.David MOHLA, etc., et al., Defendants.andAVISON TIMBER COMPANY, INC., CounterclaimDefendant-Third-Party Plaintiff-Appellant,v.Andrew KERR, Third-Party Defendant-Appellee. No. 90-35401. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 9, 19...
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944 F.2d 526 68 A.F.T.R.2d 91-5580, 91-2 USTC P 50,486 Jea Min HAN; Jae Soon Han, Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee. No. 90-55804. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 6, 1991.Decided Sept. 11, 1991. Allan B. Cooper, Ervin, Cohen & Jessup, Beverly Hills, Cal., for plaintiffs-appellants. ...
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Michael Howard Palmer appeals his conviction for driving in Yosemite National Park while under the influence of alcohol, with three or more prior convictions, in violation of the Assimilative Crimes Act, 18 U.S.C. § 13(a), and California Vehicle Code §§ 23152 and 23175. Because assimilation of California state law was improper, we reverse. Background On May 18, 1990, Palmer drove a pickup tru...
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Appellant Oxford Properties & Finance Ltd. (“Oxford”), appeals the judgment of the Appellate Division of the United States District Court for the Territory of Guam in favor of appellees Minor M. Engle, deceased, represented by Milton E. Frank, administrator, and Engle’s Appliance Parts, Inc. (collectively referred to as “Engle”), in Oxford’s action for unlawful detainer. We have jurisdiction pu...
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Karen Livadas brought this action under 42 U.S.C. § 1983 against Lloyd Aubry, the Labor Commissioner of California (Commissioner). She argues that the Commissioner deprived her of her right under the National Labor Relations Act (NLRA) to bargain collectively because he denied her enforcement of certain sections of the California Labor Code based on his determination that adjudicating her dispute ...
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Opinion I. Introduction Defendant Joan Glover appeals from a judgment of conviction for arson of an inhabited structure in violation of Penal Code section 451, subdivision (b). 1 On appeal, defendant contends that the evidence was insufficient to support her conviction of arson of an inhabited structure because defendant did not act with the requisite specific intent to set fire to an inhab...
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Opinion An information charged defendant Marlon Leon Johnson with burglary of an inhabited dwelling (Pen. Code, § 459) and alleged that Johnson had been convicted of a prior serious felony in Nevada (Pen. Code, § 667). Johnson initially pleaded guilty to the burglary and admitted the prior conviction. However, his conviction was reversed on appeal because the trial court, in taking the plea, ha...
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MEMORANDUM OF OPINION I Movant filed a motion for relief from the automatic stay to continue with its foreclosure after the debtors converted their bankruptcy case from Chapter 13 to Chapter 7. The Court denies the motion as moot because movant obtained an order lifting the automatic stay before the case was converted to Chapter 7. II FACTS The debtors filed...
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Opinion Statement of the Case Plaintiff Yolanda Saldana (Saldana) appeals from summary judgment granted in favor of defendant Globe-Weis Systems Co. (Globe-Weis) from a complaint alleging damages in personal injury and premises liability. In August 1985, Saldana was employed by Globe-Weis as a punch press operator when her hand caught in the punch press resulting in the surgical amputation of fou...
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*969 Opinion Michael Thomas Miller appeals following imposition of a sentence that denied him worktime credits (Pen. 1 Code, § 2933) while committed to, and before his exclusion from, the California Rehabilitation Center (CRC). Pursuant to a plea bargain, appellant pleaded guilty to possession of ephedrine and hydriodic acid with intent to manufacture methamphetam...
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Opinion One component of California’s antideficiency legislation bars a vendor from obtaining a deficiency judgment against a purchaser of real property under a deed of trust given to the vendor to secure payment of a purchase money interest for the property. (Code Civ. Proc., § 580b (hereafter section 580b).) Our Supreme Court has held that this provision automatically applies to sold-ou...
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AMENDED ORDER GRANTING SUMMARY JUDGMENT AND ENJOINING THE ATTORNEY GENERAL FROM ENFORCING AN UNCONSTITUTIONAL STATUTE Introduction The question before the Court is whether section 2805(a) of the California Vehicle Code authorizing warrantless searches without probable cause of automobile repair shops for the purpose of locating stolen vehicles violates the Fourth Amendment to the...
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944 F.2d 548 NATIVE VILLAGE OF VENETIE I.R.A. COUNCIL; Native Village ofFort Yukon I.R.A. Council; Nancy Joseph;Margaret Solomon, Plaintiffs-Appellants,v.STATE OF ALASKA; Myra Munson, in her official capacity asCommissioner of the Department of Health andSocial Services, Defendants-Appellees. No. 88-3929. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 9,...
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943 F.2d 1161 UNITED STATES of America, Plaintiff-Appellee,v.Juan RUBIO-VILLAREAL, Defendant-Appellant. No. 89-50655. United States Court of Appeals,Ninth Circuit. Sept. 12, 1991. Prior Report: 9th Cir., 927 F.2d 1495. Before WALLACE, Chief Judge, and BROWNING, HUG, TANG, SCHROEDER, FLETCHER, FARRIS, PREGERSON, ALARCON, POOLE, D.W. NELSON, CANBY, NORRIS, REINHARDT...
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Opinion Anthony J. Chromy, administrator of the Estate of Ronald Allan Chromy, appeals from a defense judgment after a jury rejected his maritime wrongful death and survivor claims based on the Death on the High Seas Act (46 U.S.C. § 761 et seq.; DOHSA). We vacate the judgment and order the action dismissed because the trial court had no subject matter jurisdiction to try either claim. We...
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*1006 Opinion Pursuant to a general assignment for the benefit of creditors, plaintiff Credit Managers’ Association of Southern California, now known as Credit Managers’ Association of California (CMA), was assigned the assets of an insolvent partnership, National Transaction Systems (NTS). In marshalling the assets of the partnership in order to distribute them equally to the un...
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Opinion By nonjury trial plaintiff and respondent Charley Carter obtained a money judgment against defendant and appellant Continental Land Title Company, for wrongful reconveyance of a deed of trust. Civil Code section 2941.7 provides a procedure by which a borrower may obtain reconveyance of a trust deed, when the obligation secured by the trust deed has been paid and the lender ca...
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944 F.2d 577 1992 A.M.C. 448, 60 USLW 2224, 22Envtl. L. Rep. 20,129 In re The GLACIER BAY.KEE LEASING COMPANY; Mathiasen's Tanker Industries, Inc.;Glacier Bay Transportation Corp.; TrinidadCorporation, Appellants,v.Merrill McGAHAN, et al.; Trans-Alaska Liability Fund;Kenai Pipe Line Co.; S.P.C. Shipping, Inc.; Tesoro AlaskaPetroleum Company; Cook Inlet Recourse Organization, etal.; ...
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944 F.2d 589 25 Collier Bankr.Cas.2d 740, 22 Bankr.Ct.Dec. 143,Bankr. L. Rep. P 74,294 In re UNITED ENERGY CORP., Debtor.Frederick S. WYLE, as Trustee of United Energy Corporationand Trustee of Renewable Power Corporation, Appellant,v.C.H. RIDER & FAMILY; C.H. Rider; Thomas A. Rider, Appellees.In re UNITED ENERGY CORP., Debtor.Frederick S. WYLE, as Trustee of United Energy Corporati...
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Defendant Canyon Television and Appliance Rental, Inc. (Canyon) appeals from a district court grant of a preliminary injunction in favor of the plaintiff, Rent-A-Center, Inc. (RAC), in a diversity action to enforce a covenant not to compete associated with RAC’s purchase of a Canyon location. We affirm. I. FACTS RAC rents durable household goods, such as televisions, stereos, appliances, and furni...
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S. Myron Klarfeld appeals pro se the district court’s order dismissing his complaint for failure to state a claim. Klarfeld contends the district court erred by dismissing the complaint without leave to amend. We reverse and remand. FACTS AND PRIOR PROCEEDINGS In his complaint, Klarfeld, an attorney, alleges that on or about April 12, 1989, he *585entered the United States Courthouse in Los Angele...
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*977Opinion Zafar A. Rao (plaintiff) purports to appeal: From orders made July 27,1990, (1) granting the motion of Darius Campo (defendant) for a protective order with regard to about 200 interrogatories propounded by plaintiff, pursuant to Code of Civil Procedure1 section 2030, subdivision (e); and (2) imposing monetary sanctions in the sum of $780.50 against plaintiff pursuant to sections 2030,...
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*721 ORDER AFFIRMING BANKRUPTCY DECISION AND ORDER DENYING AVOIDANCE OF JUDICIAL LIEN This matter comes before the Court on appeal from the decision of the United States Bankruptcy Court, Central District of California, which denied the Debtors,’ Sandor Chabot and Betty Chabot (“Cha-bots”), Motion to Avoid Lien brought pursuant to Bankruptcy Code § 522(f)(1). CNB v. Chabot,...
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Opinion Statement of the Case This is the second appeal from a summary judgment in plaintiff Paul S. Mosesian’s defamation action against defendants McClatchy Newspapers, Frank McCulloch, Denny Walsh, Jerry Bier and James McClung. 1 In Mosesian v. McClatchy Newspapers (1988) 205 Cal.App.3d 597 [252 Cal.Rptr. 586] (Mosesian I) this court add...
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Opinion We deal here with two petitions for extraordinary relief arising from two superior court actions, which were consolidated for all purposes. The petitions have also been filed with this court in consolidated form, and we treat them as consolidated for all purposes. The petitioners here and plaintiffs in the superior court are Anthony Alfred Ciani, an individual (Ciani), and th...
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Opinion Plaintiff Trisha Denton sued Greenhouse Apartments and the City of Fullerton alleging she was raped because defendants failed to warn her of another nearby sexual assault that occurred shortly before she was attacked. The city moved for summary judgment arguing it owed plaintiff no legal duty and was immune from suit under Government Code section 845. The lower court granted the motion ...
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*1042Opinion Introduction Kimberley Renee Matthews (plaintiff) has appealed from a judgment entered in favor of defendants County of San Bernardino (County) and County Service Area 70, Improvement Zone G (CSA70), a special road maintenance district1 (collectively defendants). Judgment was entered after defendants’ motions for summary judgment were granted. Facts Plaintiff, a minor, suffered serio...
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230 Cal. App. 3d 102 (1991) 281 Cal. Rptr. 1 In re BENNY S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. BENNY S., Defendant and Appellant. Docket No. B046137. Court of Appeals of California, Second District, Division Seven. April 24, 1991. *104 COUNSEL Arthur H. Weed, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungr...
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We consider whether the annual rec-ordation requirements of the Federal Land Policy and Management Act of 1976 (“FLPMA”) are applicable to mining claims located within national parks. I Ptarmigan Company, Inc., is a corporation owned almost exclusively by Kirk Stanley. Ptarmigan owned a number of lode mining claims, the most valuable of which were the unpatented “Eambler Claims” in Wr...
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Appellant Wayde Lynn Kurt appeals three separate orders from the Eastern District Court of Washington. District Judge Quackenbush issued the first order on September 12, 1990, dismissing without prejudice Kurt’s conviction for possession of counterfeiting paraphernalia. Circuit Judge David Thompson, sitting by designation, issued the remaining two orders on October 9, 1990, dismissin...
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This case involves Bivens and state common law claims brought by a former major in the United States Air Force, Marsha Lutz, who alleges that the individual defendants, Technical Sergeants Ivory and Fer-din (“the sergeants”), broke into her office, took personal papers and disseminated them to other military personnel with the intent to injure her reputation and career. The sergeants...
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*1066Opinion Appellants, a drug dealer and his bodyguard, were convicted of two counts of felony murder,1 after the robbery and execution-style slaying of another drug dealer and his girlfriend at the victims’ home. Appellants raise numerous issues on appeal: (1) They both contend the trial court erred in refusing instructions based upon a theory of conspiracy, even though they were charged with a...
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*1155 MEMORANDUM DECISION AND ORDER FACTUAL BACKGROUND On April 10, 1987, the Federal Savings and Loan Insurance Corporation (the “FSLIC”) became receiver for the Central Savings and Loan Association (“Central”), a failed thrift. Claiming that former Central directors breached their fiduciary duty, the FSLIC’s statutory successor, the Federal Deposit Insurance Corporation (t...
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Opinion The respondents, Reverend Tad Imuta et al. (respondents), move to dismiss the appeal filed on April 25, 1991, by Richard I. Fine, Esq. (Fine), from 10 described orders of the trial court imposing monetary *990 sanctions which were made in 1989 and 1990. To the extent that such orders were appealable when imposed, respondents’ motion is well taken as the notice of appe...
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Opinion This is an appeal from a judgment of dismissal entered after the trial court granted cross-defendant Northwestern National Insurance Company’s (Northwestern) motion for judgment on the pleadings on Columbia Casualty Company’s (Columbia) cross-complaint. We conclude that the allegations of Columbia’s cross-complaint state a good cause of action for declaratory relief against Northw...
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Opinion Defendants and appellants Saul and Marian Barab, individually and as trustees of the Barab Family Trust, appeal from a judgment entered after a court trial in favor of plaintiff and respondent Loretta Nicholson for damages and specific performance of an agreement to purchase residential real property from defendants. Defendants contend that: (1) *1090 the evidence is insufficient to s...
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OPINION AND ORDER DIRECTING ENTRY OF SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS INTRODUCTION Plaintiffs are the board of trustees of fringe benefit trust funds for the Sheet Metal Workers Local Union No. 104 (Trust Funds). Defendant employers Udovch, doing business as Oceanside Sheet Metal, are bound by a collective bargaining and various trust agreements to make timely contributions to...
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Several dissident local unions of the United Brotherhood of Carpenters & Joiners of America (“UBC”) appeal the entry of summary judgment against them in their action challenging the UBC’s decision to merge sixteen Southern California local unions into four new locals (No. 89-55342). The Los Angeles County District Council of Carpenters (“the District Council”) cross-appeals the district court’s de...
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Smith was convicted on numerous counts of conspiracy and bank fraud as a result of his criminal dealings with the Queen City Savings & Loan (Savings & Loan). The district court sentenced Smith to ten years in prison and ordered him to make restitution to the Federal Savings and Loan Insurance Corporation (FSLIC) in the amount of $12,792,160. Smith challenges only the restitution order in this appe...
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ORDER This action arises out of a dispute between Union and Employer appointed trustees of the Western States Asbestos Pension Fund (“Fund”).1 Pursuant to 29 U.S.C. § 186(c), an impartial umpire2 was appointed by the trustees to resolve their dispute. Plaintiffs’ suit attacks the award of the impartial umpire3. Under that *495award, all contributions received by the Fund for work performed after ...
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Opinion Defendant, who was charged with driving under the influence of alcohol (Veh. Code, § 23152), moved under Penal Code section 1538.5 to suppress evidence of his intoxication obtained after a police officer stopped his car for speeding. He contended that evidence of his speeding was derived from an illegal speed trap and was therefore inadmissible to establish probable cause for the stop. ...
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Opinion Plaintiff, Bobby Hebert, appeals from judgment of dismissal entered following an order sustaining demurrer of defendants, Los Angeles Raiders, Ltd. (Raiders) and National Football League (NFL), to plaintiffs amended complaint without leave to amend. 1 Facts The amended complaint alleged: Defendant NFL is an unincorporated association comprised of 28 professional ...
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Opinion Jane Evans appeals from a judgment of dismissal after the trial court sustained, without leave to amend, the demurrer of Dayton Hudson doing business as Target Stores, Inc., (Dayton Hudson) to the second amended complaint filed by her and her husband. The question presented is whether the spouse of an injured person who receives advance payments under Insurance Code 1 s...
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945 F.2d 259 68 A.F.T.R.2d 91-5641, 91-2 USTC P 50,552,37 Cont.Cas.Fed. (CCH) P 76,192 UNITED STATES of America, for the Use and Benefit ofCONSOLIDATED ELECTRICAL DISTRIBUTING, INC., Plaintiff,andConsolidated Electrical Distributing, Inc.,Plaintiff-Counter-Defendant-Appellee,v.J.D. GRAINGER COMPANY, INC., et al., Defendant-Cross-Defendant,andAMWEST SURETY CO., Defendant-Third-Party-Plaint...
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Felipe Madera-Gallegos (Felipe) and Carla Rosa Gallegos were convicted of conspiracy to possess heroin with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. They appeal their sentences under the Sentencing Guidelines. Carla Rosa contends that the district court erred in applying the 2-level obstruction of justice enhancement and in not giving her the 4-level minimal participan...
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945 F.2d 1450 UNITED STATES of America, Plaintiff-Appellee,v.Daniel PROA-TOVAR, Defendant-Appellant. No. 90-50373. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 5, 1991.Decided Sept. 18, 1991. Debra Ann DiIorio, Federal Defenders of San Diego, San Diego, Cal., for defendant-appellant. Kimberly D. Allan, Asst. U.S. Atty., San Diego, Cal., f...
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Daryl Nuesca appeals his conviction for taking two green sea turtles off the northern shore of Maui in violation of the Endangered Species Act (the “Act”), 16 U.S.C. §§ 1538(a)(1)(G) and 1540(b) and 50 C.F.R. § 227.71(b) and (d). Daniel Peter Kaneho-lani appeals his conviction for killing a Hawaiian monk seal. The appeals of Nuesca and Kaneholani have been heard together, and both convictions a...
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Opinion This appeal from an order in a bail forfeiture proceeding raises two issues: (1) May a bail bond agent be held liable in a summary judgment of bail forfeiture under Penal Code section 1306? (2) May a summary judgment of bail forfeiture be amended more than 90 days after the day it could first be entered, in order to explicitly state that it is rendered against the surety as well a...
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Opinion The Santa Monica Rent Control Board (Board) appeals after the superior court issued a writ of mandate sought by Judith and Baruch *96 Givoni. The writ of mandate was based on the court’s interpretation of the rent control law (Santa Monica City Charter, art. XVIII). The court mandated that the Board (1) vacate a base rent of $360 because the rental unit was converted to a condominium,...
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*84 Opinion I. Introduction Medical Legal Consulting Services, Inc. (MLCS), a corporation headquartered in Maryland, appeals from that part of an order of the Los Angeles Superior Court refusing to enforce a Maryland judgment against a minor’s parents acting as guardians ad litem who resided in California. Because we are required by the full faith and credit clause of the Un...
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ORDER DISMISSING COPYRIGHT ALLEGATIONS FOR FAILURE TO STATE A CLAIM AND DISMISSING REMAINING STATE-LAW CLAIMS FOR LACK OF SUBJECT MATTER JURISDICTION Introduction In the beginning, harmony prevailed among Bond’s assistants. Danjaq, S.A. (“Danjaq”) produced Bond films and MGM/UA Communications Co. (“MGM”) distributed them. Sixteen Bond films in all, from “Dr. No” to “License to Kill,”...
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*1122 Opinion Introduction This appeal presents the question: do certain grant deeds made subject to “[a]ll reservations, conditions and restrictions of record” adequately incorporate by reference a previously recorded “Declaration of Covenants, Conditions and Restrictions” (CC&Rs) by which the grantors established a general plan for the development and use of a particular s...
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OPINION OVERVIEW This is an appeal from a bankruptcy court order denying a voluntary motion to dismiss. We AFFIRM. FACTS On January 30, 1990, Appellant Mickey Dean Leach (“Leach”) filed a Chapter 7 bankruptcy petition. Within the 240 days prior to the filing of the petition, Appellee United States of America Internal Revenue Service, (“the United States”) assessed personal ...
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Transamerica Transportation Services, Inc. (TTS) appeals from the judgment entered below in favor of the plaintiff, R.B. Matthews, Inc. (RBM). The lower court, in a bench trial, found that TTS did not use its “best efforts” to provide 600 trailers to RBM pursuant to their agreement. The court awarded $551,300 to RBM. We affirm the judgment as to liability, but reverse the award of damages and r...
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Jesus Jorge Ayala-Chavez seeks review of a Board of Immigration Appeals (BIA) decision affirming the immigration judge’s denial of his application for discretionary relief from deportation under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c). We affirm. I Ayala is a 27 year old Mexican citizen who has lived in the United States as a lawful permanent resident...
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OVERVIEW Sandra Eley appeals the district court’s summary judgment dismissal of her action for medical benefits against the Boeing Company and King County Medical Blue Shield pursuant to 29 U.S.C. § 1132 of ERISA. 742 F.Supp. 566. We affirm. ISSUES (1) Whether the district court erred in reviewing the plan administrator’s interpretation of a plan term for abuse of discretion. ...
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ORDER AND OPINION RE MOTIONS FOR SUMMARY JUDGMENT CONCERNING DEFENDANTS’ ENTITLEMENT TO 271(e)(1) DEFENSE Plaintiff’s second amended complaint alleges that defendants are liable for patent infringement, misappropriation of trade secrets, and a variety of other unfair business practices in connection with defendants’ development of the Cadence, an implantable defibrillator. Both, part...
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Opinion Statement of the Case Mary K. appeals from the imposition of a conservatorship over her person and estate pursuant to the Lanterman-Petris-Short (EPS) Act. (Welf. & Inst. Code, § 5350 et seq.) On July 9, 1990, the public guardian was appointed as appellant’s temporary conservator. Counsel was also appointed to represent appellant in all conservatorship proceedings. Appel...
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Opinion A jury convicted defendant of one count of first degree burglary. (Pen. Code, § 459-) 1 The court found true enhancing allegations defendant had suffered two prior serious felony convictions and that he had served three separate prior prison terms. (§§ 667, subd. (a), 667.5, subd. (b).) On appeal defendant asserts the trial court erred in instructing the jury it could convict defendan...
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Opinion The appeal by PWS, Inc., raises a question of first impression. Where a creditor purchases the collateral after the debtor's default does the creditor’s failure to comply with the notice requirement of California Uniform Commercial Code section 9504 preclude its recovery of a deficiency judgment if the creditor, upon realizing its mistake, conducts a new sale after giving proper notice?...
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Opinion Appellant Thomas Edgar Douglas III and his brother, Bobby Dewitt Douglas, were charged and jointly tried by a jury for the murder of Lloyd Amey (Pen. Code, 1 § 187). Appellant was also charged as an accessory to the same murder (§ 32). The jury returned verdicts finding both appellant and Bobby guilty of second degree murder and finding appellant guilty as an accessory....
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Opinion Business and Professions Code sections 2052 and 2053 (hereafter sections 2052 and 2053) proscribe the unlicensed practice of *247 medicine. Under section 2052 it is a misdemeanor for one without a license to practice, attempt to practice, advertise or hold himself or herself out as practicing medicine, or to diagnose, treat, or prescibe for any physical condition of any person. Sectio...
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Opinion Alberto and Maria Lugo Ortiz appeal from the judgment entered in their action seeking damages for injuries suffered when Mr. Ortiz became trapped in a plastic injection molding machine. Mrs. Ortiz asserts error in the court’s granting of a nonsuit on her cause of action for negligent infliction of emotional distress, and claims this error was caused in part by the bifurcation of t...
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Opinion Introduction Petitioner Gilbert R. Geilim, attorney at law, for his clients and himself, (Geilim) petitions for writ of mandate/prohibition to restrain and prohibit the superior court from disclosing to the People (unsealing) the items seized pursuant to a search warrant of his law office until after a hearing to determine whether such items or a portion of such items are privileged. ...
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Opinion The respondent, Lynn Benowitz, thought that her automobile insurer had unreasonably delayed in acting on her demand to arbitrate a dispute under the uninsured motorist provision of her policy. Through her attorney, she selected her own arbitrator and proceeded to obtain an award at a scheduled hearing. We conclude that the insurer committed no breach giving rise to a waiver of its...
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concurring in part and dissenting in part. I concur in the opinion, except for Part II, dealing with prosecutorial misconduct, from which I respectfully dissent. As the majority points out, an exception to the rule that a defendant cannot compel the government to grant immunity to a witness exists where prosecutorial misconduct intentionally distorts the fact-finding process. In my view, no prosec...
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Transamerica Commercial Finance Corporation (“Transamerica”) appeals a decision by the Ninth Circuit Bankruptcy Appellate Panel (“BAP”) holding that a flooring agreement between Transamerica and Chapter 11 bankruptcy debtor Sun Runner Marine, Inc. (“Sun Runner”) is nonassuma-ble under section 365 of the Bankruptcy Code, 11 U.S.C. § 365 (1988). This decision reversed a ruling by the bankruptcy cou...
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944 F.2d 1489 22 Envtl. L. Rep. 20,113 John H. BOONE, Esq., Trustee of the Maud Van Cortland HillSchroll Trust, Plaintiff-Appellee,v.UNITED STATES of America, and Department of the Army;United States Corps of Engineers; John O. Marsh, Jr., Sec.of Army, Lieutenant General Henry J. Hatch, BrigadierGeneral Arthur E. Williams, and Colonel F.W. Wanner,Defendants-Appellants. No. 90-15661. ...
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ORDER The opinion filed July 13, 1990, 908 F.2d 1426, is withdrawn. OPINION Walter Morgan appeals from the district court’s decision upholding the determination of the Secretary of Health and Human Services (“Secretary”) that he is not entitled to disability insurance benefits. We affirm in part and reverse and remand in part. I. Facts and Proceedings Below Morgan was ...
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We are faced with the question whether convictions set aside under the Federal Youth Corrections Act, 18 U.S.C. § 5021, repealed Pub.L. No. 473 § 218(a)(8), 98 Stat. 2027 (1984) (FYCA), may be considered in calculating a defendant’s criminal history category under the Sentencing Guidelines. Being bound by precedent, we conclude they may not be considered and reverse and remand for resentencing. I ...
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This is an action filed by Garth Maag of Glasgow, Montana, under 42 U.S.C. § 1983 against three police officers and the City of Glasgow and Valley County, Montana, for taking him into custody for a medical evaluation. The officers, Richard Wessler, Mike Boyer, and Michael Sukut, appeal the denial of their motion for summary judgment in which they asserted a defense of qualified immunity. We have j...
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Appellant Gene Szalkiewicz appeals his convictions for four counts of possession of a firearm by a convicted felon, pursuant to 18 U.S.C. § 922(g)(1). Szalkiewicz claims he was improperly convicted of multiple counts of 18 U.S.C. § 922(g)(1) based on his possession of multiple weapons on the same date. We agree and reverse. On October 26, 1989, federal agents seized five machine guns, five sile...
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Opinion Ethel Krieger, as executrix of the Estate of Norman Krieger, and Robert Krieger (hereinafter appellants or the Kriegers) appeal from a judgment entered against them following the granting of a motion for summary judgment on their complaint for damages arising from the alleged defective performance of an automobile. The vehicle was purchased for Robert Krieger by Norman Krieger fro...
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Opinion In this modern computer age, creative entrepreneurs are carving out large fortunes by providing new and unique services to the untrained public. Lelas Charles Gentry was just such an entrepreneur, advertising his services in the field of credit history improvement to individuals who found themselves floundering in a financial morass. Unfortunately, rather than throwing them a life...
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Opinion On behalf of Andrea E. and Joshua E., minors, the County of Sutter (County) filed this action against defendant Davey Darrell Davis to *322 establish paternity and obtain child support and reimbursement for public assistance. (Civ. Code, § 248; Welf. & Inst. Code, §§ 11350, 11350.1, 11475.1; all further references to undesignated statutory sections are to the Welfare ...
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Opinion Defendant Phyllis McKinney appeals a judgment in favor of plaintiff Steve Whittington following a court trial. Whittington alleged *125 McKinney wrongfully caused a notice of default and election to sell under a deed of trust to be recorded against his property. McKinney claimed she was the assigned holder of a note and trust deed against the property which was in def...
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Opinion The issue in this case is whether the Association for Retarded Citizens (ARC) is required to pay employees who work less than 24-hour shifts for time when the employees are allowed to sleep. We conclude ARC is required to compensate the employees for all the hours *24 they are subject to ARC’S control, including hours when the employees are allowed to sleep. Fact...
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Plaintiffs Richard J. Plastino, Janice Gudde Plastino and Doris L. Brown (“Plas-tino/Brown”) appeal the district court’s entry of summary judgment in favor of defendants Allan Jamieson and Eureka Savings and Loan Association (“Eureka”) on Plastino/Brown’s claims for declaratory relief and damages. We reverse and remand. BACKGROUND Because many of the issues raised on this appeal involve disputes o...
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944 F.2d 1525 1991-2 Trade Cases P 69,594, 1991 Copr.L.Dec.P 26,803,20 U.S.P.Q.2d 1771 COLUMBIA PICTURES INDUSTRIES, INC.; Embassy Pictures;Paramount Pictures Corporation; Twentieth Century Fox FilmCorporation; Universal City Studios, Inc.; Walt DisneyProductions; Warner Bros. Inc.; CBS, Inc.,Plaintiffs-counter-defendants-Appellees,v.PROFESSIONAL REAL ESTATE INVESTORS, INC.; Kennet...
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Frederick George Roehler, II appeals the district court’s denial of his petition for habeas corpus relief. He argues that there was insufficient evidence to support his conviction of two counts of murder with special circumstances. We affirm. BACKGROUND On January 2, 1981 Roehler, his wife Verna, and his stepson Douglas took a dory from their sailboat to Bird Rock. Later that day, the crew ab...
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Opinion The critical issue tendered by this appeal is whether an insurer owes a duty to its insureds to disclose within a reasonable time the existence and amount of underinsured insurance coverage which may or may not *394 become operative depending on the adequacy of the available bodily injury liability insurance. If such a duty exists, the specific question on this appeal...
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Opinion We hold here that a judge’s failure to respond to or strike an allegedly untimely and legally insufficient statement of disqualification *419 equates to a consent to disqualification pursuant to Code of Civil Procedure 1 section 170.3, subdivision (c)(4). Under the circumstances here, the statement of disqualification was timely even though not asserted unt...
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944 F.2d 632 Clinton W. LOVE, Sr., and Rose Mary Love, husband and wife,Plaintiffs-Appellants,v.UNITED STATES of America; United States Department ofAgriculture; Farmers Home Administration; Philip A. Young;Claude Hargrove; Arthur E. Lung; Theodore Hebnes; RogerMeredith; Rodger Vanvalkenburg; Dale Gilbert; Jim Walker;Stanley Faught, and Gilbert L. Anderson, Defendants-Appellees. N...
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Defendant Dion Floyd appeals his conviction for conspiracy to distribute cocaine and rock cocaine. The government cross-appeals the district court’s downward departure in sentencing defendant to seventeen years of imprisonment. We affirm both the conviction and the sentence. I In early September 1988, the Drug Enforcement Administration received information from a confidential informa...
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Opinion Plaintiff Thomas N. Draper (Draper) borrowed money from defendant American Funding Limited, individually and doing business as Southern California Funding Limited (American Funding). After making payments for approximately three years, Draper wished to pay off the loan. When American Funding informed Draper it would cost Draper more than the amount borrowed to pay off the indebtedness, Dr...
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*335 Opinion Terry Bennett (plaintiff) appeals from an order granting the motion of California Custom Coach, Inc. (defendant) to tax costs. We affirm the order. Factual and Procedural Statement On or about October 2, 1987, plaintiff paid defendant a $5,000 down payment towards the purchase of a “Daytona American Kit,” which is a vehicle conversion package used to m...
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Opinion Appellant Community Bank appeals from the judgment rendered in favor of respondent William Little upon the granting of respondent’s summary judgment motion. Appellant, an enforcing creditor, caused a home to be sold at a sheriff’s sale. Respondent bought the home and later discovered that prior to the sale, appellant had not disclosed all liens on the property. The trial court det...
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Opinion Petitioners, American International Group, Inc., and American Home Assurance Company, are defendants in an action commenced by respondent Brutoco Engineering & Construction, Inc. (Brutoco). Brutoco seeks damages on a number of legal theories 1 , all of which allegedly arise from certain misrepresentations made to it by petitioners with respect to a policy for workers’ c...
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Opinion Thomas Frank Maniscalco is charged with three murders and faces a potential death penalty. The superior court removed his three appointed counsel after the first trial ended with a hung jury, and he sought writ relief from a portion of that order. 1 We denied the petition summarily, but the Supreme Court granted review and retransferred the matter to us with directions to issue an alt...
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Opinion Facts and Proceedings Below The District Attorney of Los Angeles County, representing petitioner, the People of the State of California (hereinafter referred to as the People), seeks a writ of mandate to compel the Los Angeles County Superior Court to vacate its order of February 1, 1991. In that order the trial court, in response to a motion in opposition to the issuance of a search warr...
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Opinion In these mandate proceedings, we are called on to resolve the impasse created by the failure of the Legislature to pass legislative and congressional reapportionment bills acceptable to the Governor in time for the forthcoming 1992 Primary and General Elections. (See Cal. Const., art. XXI, § 1.) On September 23, 1991, Governor Wilson exercised his authority to veto the legislative pla...
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Appellant Vincent Mone, a former employee of appellee Milton Dranow, appeals the district court’s grant of summary judgment for Dranow on Mone’s claim that Dranow obtained a credit report regarding Mone for a purpose impermissible under section 604 of the Fair Credit Reporting Act (the “FCRA”), 15 U.S.C. §§ 1681-1681t (1982). We review de novo, see Hansen v. Black, 885 F.2d 642, 643 ...
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*856 Opinion Defendant Lemuel B. Chaney, Sr., appeals from the judgment entered on the jury verdict convicting him of possession for sale of rock cocaine (Health & Saf. Code, § 11351.5) and manufacture of a controlled substance (Health & Saf. Code, § 11379.6, subd. (a)). Defendant makes several contentions for reversal of the judgment, all of which we reject. Statement of Fa...
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Opinion Plaintiff Federico S. Aguimatang, Jr., and cross-complainant Arnulfo Melgar Chanquin appeal from summary judgment entered in favor of defendants/cross-defendants California State Lottery Commission, State *777 Controller, Director of California State Lottery, California State Lottery, State of California, James Barnett, Timothy Ford and California State Lottery Educat...
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Opinion Plaintiff and appellant Helen H. Ruffalo appeals from the judgment entered in favor of defendant and respondent Paul S. Patterson, in an action for damages for legal malpractice. We reverse the judgment. Facts In her first amended complaint, plaintiff alleged she retained defendant to represent her in a proceeding for dissolution of her marriage; defendant knew or should have known ...
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Firestone Tire & Rubber Co. and The Budd Co. appeal from the district court’s denial of their motion for new trial or re-mittur. We affirm. BACKGROUND Ludís J. Cooper was injured in the course of his employment as a tire repairman when a multi-piece truck rim, known as the RH5 degree, explosively separated as he was servicing a wheel and tire. The injury required amputation of Cooper’...
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Lawrence Snider, who pled guilty to a money laundering charge, challenges the restitution component of his sentence on two grounds. First, he contends that the district court’s order is unlawful because it requires him to pay an amount in excess of the loss alleged in the indictment to which he pled guilty. Second, he contends that his acknowledgment of the district court’s apparent power to order...
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Opinion This case presents the question of whether the defendant in a criminal case is entitled, upon demand at the start of trial, to have the prosecution elect which of several distinct acts is relied upon for each individual charge. We hold that he or she is, generally, entitled to an election upon demand, and that the court’s refusal to require one is not in all cases *876 cured by the gi...
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Opinion The Constitution of California decrees that “A judge of a court of record may not practice law and during the term for which the judge was selected is ineligible for public employment or public office other than judicial employment or judicial office, . . .” (Cal. Const., art. VI, § 17.) In this original proceeding on petition for writ of mandate we are called upon to determine whethe...
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Opinion Is the County of Orange required, pursuant to section 53205.2 of the Government Code, 1 to provide retired county personnel with *837 health care benefits equal to those provided to active employees, at no additional out-of-pocket cost to the retirees? Stated another way, does section 53205.2 mandate equal subsidies for retired employees? The trial court concluded it does and that m...
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Opinion A jury found John Ronald Brown guilty of four counts of unlawfully practicing medicine causing a risk of great bodily injury. (Bus. & Prof. Code, § 2053.) The trial court sentenced Brown to the upper term of three years in prison on the first count, with equal concurrent terms on the remaining counts. Brown appeals, contending (1) the evidence was insufficient to support the convictions, ...
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*890 Opinion Plaintiff Willis Edwards appeals from the summary judgment entered in favor of defendant Arsenio Hall in this defamation action. We find that triable issues of material fact exist and, accordingly, reverse the judgment. Background In November 1988, Hall was in the preproduction phase of “The Arsenio Hall Show” (AHS), a nationally syndicated talk show. Edwar...
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Thomas appeals the district court’s dismissal of his petition for a writ of habeas corpus and the district court’s subsequent denial of his motion to vacate the dismissal. For reasons set forth below, we affirm. I. FACTS In a 1971 bench trial in Arizona state court, Thomas was found guilty of first-degree rape and assault with a deadly weapon. 1 Thomas appealed the convictions and sentences...
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945 F.2d 309 60 USLW 2252, Bankr. L. Rep. P 74,280 In re Keith D. BYBEE, Sr.; Eleonore J. Bybee, dba KeithBybee Enterprises, Debtors.John E. KROMMENHOEK, Trustee, Appellant,v.A-MARK PRECIOUS METALS, INC.; A-Mark Financial Corporation;Spiral Metals, Inc., Appellees. No. 90-35604. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 7, 1991.Decided Sept. 27,...
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John W. Palmer appeals from sentence. 1 He contends that the district court misapplied section 4A1.2(a)(2) of the Sentencing Guidelines by counting his prior sentences for a burglary conviction and revocation of probation on a forgery conviction separately when the probation revocation and burglary conviction were consolidated for sentencing. Palmer argues that § 4A1.2(a)(2), which provides tha...
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Alfred Mansion appeals from an adverse summary judgment granted in favor of the United States. Mansion’s suit against the government, brought pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., arose from his slip and fall at Fleet Recreation Park in Alameda Naval Air Station. We conclude that California’s “recreational use” statute immunizes the government from liabil...
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Appellant Paul R. Hoesterey appeals the district court’s dismissal of his action against the City of Cathedral City and its City Manager, Jack R. Smith (collectively, “the City”). Based on its determination that the statute of limitations’ period had expired, the court below dismissed Hoester-ey’s claim seeking redress pursuant to 42 U.S.C. § 1983 for the alleged deprivation of his due process ri...
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*912 Opinion The California Child Day Care Facilities Act (Health & Saf. Code, § 1596.70 et seq.) 1 requires family day-care homes for children to maintain liability insurance or, alternatively, to maintain a file of affidavits stating that each “parent has been informed that the family day care home does not carry liability insurance or a bond according to standards e...
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Opinion In this premises liability action, Nolan Feeley appeals from summary judgment against him. He contends that the statute of limitations *951 applicable to his action should have been tolled while he was comatose as a result of injuries he received while on respondents’ premises. We agree, and reverse. Facts and Procedural History For purposes of this appeal a...
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Opinion Defendant was tried and convicted of conspiracy to transport and possess cocaine for purposes of sale in violation *944 of Penal Code section 182, subdivision 1 (now Pen. Code, § 182, subd. (a)(1) (count I)), possession of cocaine for sale in violation of Health and Safety Code section 11351 (count II) and transportation of cocaine in violation of Health and Safety Co...
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Opinion Michael Antonovich (Antonovich) petitions this court for a writ of mandate (Code Civ. Proc., § 1085) to compel respondent court to grant his motion for summary judgment against Baxter W. Schwellenbach, also known as Baxter Ward (Ward). We deny the petition and discharge the alternative writ of mandate. Factual Statement Ward was a television news director and anchorman in Los Ange...
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Opinion This matter is before us on a motion by defendant and respondent Wibbelsman to dismiss the appeal in this action for lack of jurisdiction in this court because of failure timely to file a notice of appeal. Pursuant to the request of defendant and appellant Nesbitt (rule 41(b), Cal. Rules of Court) 1 we placed the motion to dismiss on calendar for hearing because (a...
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Opinion Defendant’s probation was revoked in a Trinity County case and he was sentenced to state prison for sale of methamphetamine (Health & Saf. Code, § 11379). He appeals. Since defendant’s contentions are without merit, we shall affirm. *1068 In the published part of this opinion, we reject defendant’s contention that he is entitled to the benefit of a so called “implied...
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Opinion Petitioner (defendant) moved for summary judgment in the superior court on the ground that the medical malpractice complaint of real parties in interest (plaintiffs) is barred by the statute of limitations. The motion was denied and defendant seeks writ review pursuant to Code of Civil Procedure section 437c, subdivision (/). (All further statutory references to sections of an undesigna...
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Opinion Plaintiff Cynthia Módica purports to appeal from a summary judgment entered in this action for legal malpractice in favor of defendant Mark E. Merin. The record on appeal reflects that on June 14, 1990, the trial court granted defendant’s motion for summary judgment. Thereafter, defendant prepared and the court signed a formal order granting the motion. Plaintiff appealed, bu...
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Opinion Plaintiff Reginald Eric Valenzuela appeals a summary judgment entered in favor of defendant City of San Diego. Valenzuela contends factual issues remain to be litigated in his claim the city is not immune from liability for severe and permanent injuries he sustained while diving at the Sunset Cliffs/Ocean Beach area of the City of San Diego. We disagree and affirm. Factual and Procedu...
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Appellant law firm Estes and Hoyt (“E & H”) appeals the decision of the Bankruptcy Appellate Panel (“BAP”) affirming the Bankruptcy Court’s denial of attorney’s fees. We have jurisdiction pursuant to 28 U.S.C. section 158(d) and affirm. I. E & H was hired by the Bankruptcy Trustee for debtor, Riverside-Linden Investment Company (“Riverside-Linden”), to assist in the sale of Riverside-...
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Vincent F. Shutt, a citizen of the state of Washington, brought suit against Sandoz Crop Protection Corporation (Sandoz), a New York corporation, and Zoecon Corporation (Zoecon), a Delaware corporation, alleging that he had been discharged by the defendants in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and the Washington law against discrimination, Wash.Rev...
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Petitioner petitions for review of an order of the Federal Energy Regulatory Commission denying a motion for rehearing on the Commission’s order reinstating a license to develop a hydroelectric power facility on federal lands. We previously remanded the matter to the Commission to consider the environmental impacts of the project, LaFlamme v. FERC, 852 F.2d 389 (9th Cir.1988). An env...
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Appellant Karen Sue Morris appeals the district court’s denial of her petition for a writ of habeas corpus. In September 1985, Ms. Morris was convicted by a Ventura County Municipal Court jury on one count of being under the influence of cocaine in violation of California Health & Safety Code § 11550(a). She challenges this conviction on the ground that she received ineffective assistance of co...
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Opinion Carnival Cruise Lines, Inc. (Carnival) petitions this court for writs of mandate directing the trial court to vacate its orders denying their motions to dismiss or stay in Williams v. Carnival Cruise Lines, Inc. (L.A. Super. Ct. No. SOC 96347) (Williams) and Secard v. Carnival Cruise Lines, Inc. (L.A. Super. Ct. No. SOC 96301) (Secard) and to enter new and different orders granting the ...
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Opinion We hold that the illegal taking and killing of abalone from coastal waters may not be punished as grand theft under Penal Code section 487, subdivision 1, although it is punishable under several provisions of the Fish and Game Code. 1 We affirm the order setting aside count 2. Defendants were observed by fish and game officers illegally taking 196 abalone from the ...
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*966 Opinion Petitioner, Haight, Brown & Bonesteel (HBB), seeks a writ of mandate after the trial court granted a motion for judgment on the pleadings in favor of real parties in interest (DCC partners). 1 Haight, Dickson, Brown & Bonesteel was a law partnership with its principal office in Santa Monica, California, and a branch office in Santa Ana, California. In Ma...
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Opinion Plaintiff, cross-defendant and appellant Banco Do Brasil, S.A., Los Angeles Agency, a banking association organized and existing under the laws of Brazil (Banco), and cross-defendant and appellant Joao Stefanon (Stefanon) appeal from a judgment entered against them following a jury verdict in favor of the defendants, cross-complainants and respondents Latían, Inc., a California co...
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Opinion Real parties Roger Terry and his wife filed this lawsuit against Terry’s employer, petitioner United Airlines, Inc., after United conducted a workplace investigation—prompted by the complaints of Terry’s female coemployees that they had been sexually assaulted and harassed. Terry and his wife claimed United’s investigation of these charges was tortious, and allowed them to sue Uni...
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Opinion Social Services Union Local 535, SEIU, AFL-CIO, appeals from a judgment denying its petition for a writ of mandate against respondents City and County of San Francisco (City), Civil Service Commission (Commission) and Department of Social Services (Department), asserting a violation of the San Francisco City Charter (the Charter) and the civil service rules of the Commission, in the man...
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Opinion This appeal involves the Highway Carriers’ Act (Pub. Util. Code, § 3501 et seq.) 1 which requires a highway carrier to obtain “adequate protection” against liability for personal injury or death as a prerequisite to the issuance or continuance of an operating permit. (§ 3631.) A carrier must supply the Public Utilities Commission (PUC) with evidence of insurance, bond, ...
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Opinion Appeal from a judgment of the Los Angeles County Superior Court, the Honorable Robert P. Schifferman, judge presiding, dismissing the action of plaintiff/appellant following the sustaining of a demurrer to the complaint without leave to amend. We affirm. *1108I. Introduction Minor plaintiff, Cassondra Hegyes, appeals from a judgment entered after the court below sustained defendant’s demu...
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Opinion Statement of the Case On May 2, 1989, an information was filed in Kern County Superior Court charging appellants James and Tonette Lee with count I, murder in the first degree (Pen. Code, § 187), and count II, child endangerment (Pen. Code, § 273a, subd. (1)). On May 3, 1989, appellants were arraigned and pleaded not guilty. On June 20, 1989, appellants’ motion to set as...
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Lonney and Connie White seek damages arising from Atlantic Richfield’s (ARCO) failure to reassign a gas and oil lease. The dispute involves the calculation of the market value of the lease and whether the Whites must prove that a specific market for the lease existed at the time of the breach. FACTS AND PROCEEDINGS BELOW The Whites negotiated a five-year oil exploration lease with a M...
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946 F.2d 100 UNITED STATES of America, Plaintiff-Appellee,v.Claudio Roger MARTINEZ; Flor Mary Restrepo; Olga NaranjoGarcia; Luz Marina Restrepo; Juan Casanova; CarlosAlberto Montoya; Janeth Naranjo Garcia; Faber AntonioRestrepo; and Luis Fernando Monsalve, Defendants-Appellants. Nos. 89-50529, 89-50535 to 89-50538 and 89-50540 to 89-50543. United States Court of Appeals,Ninth C...
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Fine appeals his sentence of 50 months. We affirm in part, reverse in part, vacate the sentence and remand to the district court for resentencing. I Appellant was charged in a multi-count indictment with a mail fraud scheme. According to the indictment, appellant engaged in four distinct fraudulent transactions in which he assumed the identities of various landowners and used their property a...
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234 Cal.App.3d 1195 (1991) 286 Cal. Rptr. 127 In re the Marriage of MARILYN and FORREST HEISTERMANN. MARILYN HEISTERMANN, Appellant, v. FORREST HEISTERMANN, Respondent. Docket No. D011242. Court of Appeals of California, Fourth District, Division One. September 30, 1991. *1197 COUNSEL Roy B. Garrett and James Hennenhoeffer for Appellant. Wayne Alan Hughes for Respondent. OPINION WORK, J. Marilyn ...
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Opinion Defendant appeals from the judgment entered upon his convictions of one count of the crime of attempted murder (Pen. Code §§ 664, 187, subd. (a)), one count of the crime of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)) and one count of the crime of possession of a statutorily designated weapon (Pen. Code, § 12020, subd. (a)). 1 The attempted murder conviction was ...
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Opinion In this man-bites-dog story, plaintiff newspaper sued an individual for libel and slander. The trial court sustained a demurrer without leave to amend as to the libel cause of action and granted summary judgment as to the slander cause of action. We shall affirm. Factual and Procedural Background On May 25, 1988, the Escalón Times, a small-town newspaper, published artic...
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Lawrence Palmer appeals the district court’s judgment in favor of the United States in an action under the Federal Tort Claims Act. 742 F.Supp. 1068. We conclude that the Hawaii Recreational Use Statute (HRUS) immunizes the government from liability. We therefore affirm. I On June 23, 1988, Palmer visited the swimming pool at the Tripler Army Medical Center (TAMC) in Honolulu, Hawaii....
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Opinion Plaintiffs Sacramento Cable Television (SCT) and Christine Barney appeal from a judgment dismissing their challenge to a tax *236 imposed by defendant City of Sacramento (City) on users of cable television service. Plaintiffs contend the tax violates both the First Amendment to the United States Constitution and the franchise agreement between City and SCT. The trial ...
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Opinion Plaintiff brought a third party tort action for injuries sustained during the course and scope of his employment. The workers’ compensation carrier for plaintiff’s employer intervened. When plaintiff’s suit was dismissed under Code of Civil Procedure section 583.250 1 for failure to effect timely service under section 583.210, plaintiff sought unsuccessfully to interven...
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234 Cal.App.3d 1206 (1991) 286 Cal. Rptr. 24 STRUCTURAL STEEL FABRICATORS, INC., Plaintiff and Appellant, v. CITY OF ORANGE, Defendant and Respondent. Docket No. G010153. Court of Appeals of California, Fourth District, Division Three. September 30, 1991. *1207 COUNSEL Ralph Evans for Plaintiff and Appellant. Cummings & Kemp, Thomas B. Cummings and John S. Roth for Defendant and Respondent. *...
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Opinion A father appeals from the order declaring his minor sons to be dependents of the court pursuant to Welfare and Institutions Code *1356 section 1 300. Appellant asserts that the court made many errors in ruling on the dependency petition of the department of children’s services (DCS). We affirm. Factual and Procedural Synopsis I. Detention ...
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Opinion Mary Breazeal (Mary) appeals from a judgment of nonsuit on causes of action for professional negligence and wrongful death in favor of Krishan Vashistha, M.D., and Roger Haring, M.D., and from a judgment of dismissal as to an additional cause of action for negligent infliction of emotional distress. The defendant doctors were allegedly negligent in treat *1332 ing Mar...
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Opinion Dennis Uyeno and Nita Uyeno (appellants) appeal from a judgment dismissing their action against the State of California (respondent), for the wrongful death of their son, James. James was struck and killed by a small truck as he crossed a street at a controlled intersection. Appellants claimed that improper timing of the traffic signals at the intersection caused the accident. Upon the ...
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Appellant Danny Wayne Miller appeals from the district court’s grant of summary judgment in favor of the defendant, United States, in an action pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346 and 2671 et seq. In opposition to the United States motion for summary judgment, Miller argued, inter alia, that a genuine issue of material fact exists as to the duty of care the gover...
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McDonnell Douglas Helicopter Company (“MDHC”)1 appeals a judgment requiring it to indemnify Louise V., Inc. (“Louise V”) for damages stemming from a series of personal injury claims. Employees Joao Faria and Estavo Corr-eia sued M/V Louise and Louise V for injuries sustained in a series of four accidents. Two of the accidents occurred while Faria and Correia were passengers in helicopters manufact...
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945 F.2d 1138 CONFEDERATED TRIBES OF THE COLVILLE RESERVATION, MelTonasket, Chairman; Colville Business Council; ColvilleTribal Court, itself and enrolled members of the Tribes,Judy Pearson, Desiree S. Freund and Keenan A. Freund,Plaintiffs-Appellants,andRobert Freund, Intervenor,v.SUPERIOR COURT OF OKANOGAN COUNTY, the Honorable James R.Thomas and the Honorable David Edwards; JamesWeed, Ok...
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*1387 Opinion Plaintiff Edwin D. McCulloch appeals from a judgment entered following grant of the motion for summary judgment brought by defendant Ford Dealers Advertising Association of Southern California (Association). On appeal, plaintiff claims that the trial court erred when it determined as a matter of law that the presence of the Ford logo on promotional material for a dr...
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Opinion The People appeal an order denying their motion to vacate orders setting aside respondent Henry A. Mendez, Jr.’s, 1973 robbery conviction (Pen. Code, § 211), 1 substituting a misdemeanor grand theft conviction (§ 487), and sealing the records of the resultant misdemeanor conviction. The People contend the superior court lacked jurisdiction to reopen the 1973 conviction ...
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MEMORANDUM AND ORDER The court heard oral argument on August 19, 1991 on plaintiff’s application for attorney fees under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412. Defendants opposed the application on two grounds. First, defendants contend plaintiff’s application is premature because defendants have appealed. Second, defendants argue that even if the application is timel...
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with whom HUG, PREGERSON, and D.W. NELSON, Circuit Judges, join, dissenting: Appellant was charged with and found guilty of two separate sales of cocaine. His codefendant was charged with and pled guilty to two other sales of cocaine. At appellant’s sentencing, the district court made findings of fact that appellant had participated in the two sales of cocaine charged to his codefendant. Under the...
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Jose Mario Nash appeals his jury conviction for bank robbery, in violation of 18 U.S.C. § 2113(a). Nash argues that the district court erred in: (1) failing to suppress evidence seized at the time of Nash’s arrest; (2) not dismissing the indictment because of a Speedy Trial Act violation; (3) admitting allegedly tainted identification testimony into evidence; and (4) denying Nash’s acquittal moti...
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Opinion The issue presented is whether the existence of an oral joint venture or partnership agreement must be established by clear and convincing evidence or by a preponderance of the evidence. We conclude that the correct standard of proof is preponderance of the evidence. Facts The underlying dispute in this case centers on the sale of stock in Pioneer Theatres. Beryl Weiner ...
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Opinion Introduction Petitioner Southwest Airlines (Southwest) seeks review of an opinion and order of respondent Workers’ Compensation Appeals Board (the Board) denying reconsideration of a ruling that Labor Code section 3600.5, subdivision (a), 1 gives California jurisdiction over respondent Susan Beland’s workers’ compensation claim. *1423 Beland contends ...
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Opinion This is an appeal from a nonsuit granted in favor of the cross-defendants in an attorney malpractice case. The trial court granted the nonsuit after ruling the cross-complainants’ witness was not qualified to testify as an expert. We reverse. Facts and Proceedings Below I. The Case in General. Appellants introduced the following evidence at trial. In 1983, appe...
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Opinion Jamail Singh Jaspal was charged with murder in violation of Penal Code section 187. 1 It was also alleged that appellant personally used a firearm in the commission of the offense within the meaning of section 12022.5. A jury trial commenced on August 8, 1989. On August 24, 1989, the jury found appellant guilty of first degree murder and determined that the gun use...
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Opinion Kim J. appeals the judgment under Welfare and Institutions Code section 366.262 terminating her parental rights to her daughter, Melinda. In the published portion of this opinion, we reject her contention that the Orange County Social Services Agency (SSA) did not comply with statutory or due process notice requirements. The discussion rejecting her claims that the court failed to conside...
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ORDER We affirm the decision of the Bankruptcy Appellate Panel 1 because in January of 1985 when the agreement regarding interest was made, Richard Smiley, the Farmers Home Administration State Director for Arizona, lacked authority to enter into the agreement. We do not reach the other issues discussed in the Bankruptcy Appellate Panel’s decision. AFFIRMED. 1 . In re Growers-Ranchers...
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946 F.2d 695 Dan NICHOLS, Petitioner-Appellant,v.Jack McCORMICK, Warden, Respondent-Appellee. No. 90-35416. United States Court of Appeals,Ninth Circuit. Oct. 8, 1991. Wendy Holton, Helena, Mont., for petitioner-appellant. Elizabeth S. Baker, Asst. Atty. Gen., Helena, Mont., for respondent-appellee. Before BROWNING, WRIGHT and FARRIS, Circuit Judges.ORDER ...
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946 F.2d 710 WIND RIVER MINING CORPORATION, Plaintiff-Appellant,v.UNITED STATES of America; Manuel Lujan, Jr.; DelosJacobson, Director of the Bureau of LandManagement, Defendants-Appellees. No. 90-55731. United States Court of Appeals,Ninth Circuit. Submitted June 4, 1991.*Decided Oct. 8, 1991. Kenneth Holland, Denton & Denton, Las Vegas, Nev., for plaintiff-appell...
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Opinion Plaintiffs John Walsh and Sydney Walsh appeal from the judgment in favor of defendant New West Federal Savings & Loan Association (New West). New West cross-appeals from the court’s denial of its motion for reasonable attorney’s fees pursuant to Civil Code section 1717. We affirm the judgment and reverse the order denying New West attorney’s fees. Factual and Procedural Backg...
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Opinion Plaintiff Tenneco West, Inc. 1 appeals the portion of a judgment after court trial favoring defendant Franchise Tax Board of the State of California (the Board) on Tenneco’s complaint for refund of franchise taxes paid. Tenneco contends the court should have found Tenneco and certain of its subsidiaries (the Tenneco Excluded Subsidiaries) constituted a single unitary bu...
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*1346 Opinion Introduction Plaintiff Cesar Guzman suffered physical injury while a patient at defendant County of Los Angeles Hospital (Martin Luther King, Jr./Drew Medical Center; hereinafter, Drew Hospital). On plaintiff’s complaint for negligent treatment, the trial court granted summary judgment to defendant on the ground that defendant was immune from liability under Go...
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Opinion Paradise Investments, Inc., International Central Bank and Trust Corporation (trustee for the benefit of James A. Rowland), Wanda King, Floyd A. Hollingshead and Norma R. Hollingshead (collectively, the secured creditors) appeal the denial of their motion for relief from the blanket stay order issued in the liquidation proceedings of Glacier General Insurance Company (Glacier), contending...
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Appellant Martin Allen Johnson appeals pro se the district court’s entry of summary judgment in his civil rights action brought under 42 U.S.C. § 1983 against Robert Moore, the superintendent of Clal-lam Bay Corrections Center (“CBCC”) in Washington state where Johnson was incarcerated. Since this appeal was filed, Johnson was transferred to a federal prison and is currently housed in Arizona. ...
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946 F.2d 1428 UNITED STATES of America, Plaintiff-Appellee,v.Jacobo GRAIBE, Defendant-Appellant. No. 90-50416. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 1, 1991.Decided Oct. 9, 1991. Stan Hansen, Beverly Hills, Cal., for defendant-appellant. John S. Gordon, Asst. U.S. Atty., Deputy Chief, Major Narcotics Section, Los Angeles, Cal., fo...
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*1584 Opinion Plaintiff homeowners challenge the constitutionality of a zoning ordinance prohibiting transient commercial use of residential property for remuneration for less than 30 consecutive days. The trial court upheld the ordinance. We affirm. Factual And Procedural Background Plaintiffs are owners of single-family, residential property zoned R-l in the City of C...
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Opinion In this proceeding, we consider constitutional challenges to an initiative measure adopted at the November 6, 1990, General Election. This measure, entitled by its framers as “The Political Reform Act of 1990,” was designated on the ballot as Proposition 140. Its stated purpose is to “restore a free and democratic system of fair elections, and to encourage qualified candidates to seek pub...
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*1602 Opinion Introduction Defendant City of San Jose (City) on April 7, 1988, adopted Ordinances Nos. 22758 through 22761 approving redevelopment plans for three new redevelopment project areas (Alum Rock Avenue Project Area, East Santa Clara Street Project Area, and Almaden-Gateway Project Area) and merging two of the three new areas (Alum Rock Avenue Project Area and ...
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234 Cal.App.3d 1685 (1991) 286 Cal. Rptr. 267 STATE FARM LIFE INSURANCE COMPANY, Plaintiff, v. JAMES F. PEARCE, as Administrator, etc., Defendant and Appellant; CHARLOTTE MILES, Defendant and Respondent. Docket No. D013109. Court of Appeals of California, Fourth District, Division One. October 10, 1991. *1686 COUNSEL Dennis B. Atchley for Defendant and Appellant. Daniel V. Burke and Larry W. Jone...
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Opinion Richard Visueta and Michael Bunt appeal from a summary judgment granted in favor of General Motors Corporation (GMC). The trial court found that no triable facts existed as to causation on their cross-complaint for indemnity. We agree. On October 2, 1986, Bunt was driving Visueta’s 1965 Chevrolet flatbed truck which had negligently maintained brakes. Visueta told Bunt to drive the truck to...
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234 Cal.App.3d 1638 (1991) 286 Cal. Rptr. 410 ELIZABETH BAUR WORTON, Plaintiff and Appellant, v. EUGENE W. WORTON et al., Defendants and Respondents. Docket No. B053533. Court of Appeals of California, Second District, Division Seven. October 10, 1991. *1643 COUNSEL Keesal, Young & Logan, Michael M. Gless, Robert D. Feighner, Morgan, Wenzel & McNicholas and John P. McNicholas for Plaintif...
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Opinion Doose Landscape, Inc. (Doose) seeks a writ of mandate after the court granted Park Row Community Association’s (Park Row) motion to determine good faith settlement and bar all cross-complaints for indemnity against Park Row. Because we conclude that Code of Civil *1700 Procedure section 877.6 1 does not afford protection from cross-claims against a settling...
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Opinion Appellants appeal from a judgment denying a peremptory writ of mandate compelling the City of Los Angeles and its community redevelopment agency to fund and consult with the project area committee in the implementation of the Hollywood Redevelopment Project. We ordered the appeals consolidated. For the reasons set forth, we affirm the judgment. Facts and Proceedings Below ...
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Opinion In this appeal we consider Penal Code section 422 which makes it a crime to threaten another with death or great bodily harm. We conclude, inter alia, that section 422 is violated as well when such a threat is communicated by the threatener to a third party and by him conveyed to the victim as when the threat is communicated by the threatener personally to the victim. A petition pursu...
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Opinion Leo Cardinal appeals a judgment of dismissal after the trial court sustained without leave to amend a demurrer to his complaint for damages against Santee Pita, Inc., doing business as the Moondance Bar (Moondance). Cardinal contends the trial court erred in sustaining Moondance’s demurrer without leave to amend and subsequently dismissing his complaint because Civil Code section 1714 and...
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Opinion Timothy Dee Wilson and Michaelene Jenkins (the protesters) appeal an order granting a preliminary injunction to Planned Parenthood of San Diego and Riverside Counties (Planned Parenthood). The order specifically restricts them from blocking or slowing cars entering from the street into the parking lot of the Mission Valley Medical Center (Medical Center) where Planned Parenthood p...
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946 F.2d 717 33 ERC 2076, 60 USLW 2291, 22 Envtl.L. Rep. 20,278 IDAHO CONSERVATION LEAGUE, INC., Idaho Sportsmens'Coalition, Inc.; Committee for Idaho's HighDesert; Idaho Environmental Council;Idaho Natural Resources LegalFoundation,Plaintiffs-Appellees,v.Robie G. RUSSELL, in his official capacity as RegionalAdministrator for E.P.A.; Lee Thomas,Administrator, EPA; United StatesEnvironm...
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946 F.2d 1435 60 USLW 2286 Thomas SPIEGEL, Plaintiff-Appellee,v.Timothy RYAN; Dept. of Treasury; Office of ThriftSupervision, Defendants-Appellants. No. 90-55942. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 7, 1990.Decided Oct. 11, 1991. William K. Black, Office of Thrift Supervision, San Francisco, Cal., for defendants-appellants. ...
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ORDER GRANTING MOTION TO REMAND For the reasons set forth below, the Court REMANDS this action to state court, pursuant to 28 U.S.C. § 1446(c)(4), for want of jurisdiction. I. BACKGROUND Plaintiffs filed an action against American Red Cross in Superior Court on June 16,1989. They claimed that Lovada Faust, who died of AIDS, contracted the disease from a blood transfusion she rec...
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Opinion Introduction Edward Mungia (defendant) was charged in count 1 with robbery, a felony (Pen. Code, § 211) and in count 2 with unlawful possession of a hypodermic needle and syringe, a misdemeanor (Bus. & Prof. Code, § 4149). It was also alleged that he had suffered two prior serious felony convictions within the meaning of Penal Code section 667, and one prior felony conviction...
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Opinion The Insurance Commissioner of the State of California (Commissioner) appeals from a judgment granting the petition of California Automobile Assigned Risk Plan (CAARP) for peremptory writ of mandate. The judgment ordered the Commissioner to cancel hearings noticed for CAARP’s March 2, 1990, commercial automobile rate increase application and CAARP’s April 10, 1990, private passenge...
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Opinion Applicant, Andre Rouseyrol, filed a petition for writ of review in which he contends respondent Workers’ Compensation Appeals Board (Board) erred in denying reconsideration of an order by the workers’ compensation judge (WCJ) denying applicant’s request that the employer provide attendant care. When applicant was hired by respondent Iskenderian Racing Cams, he was confined to a wheelcha...
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Opinion I. Introduction This is an appeal from a judgment entered in the marital dissolution case of Joyce Tullos Katz v. Bertram Bernard Katz against Joyce Tullos Katz in favor of judgment creditor-lienor Dietmar E. Rothe (Rothe). The judgment was entered on a noticed motion for an order enforcing a judgment lien pursuant to Code of Civil Procedure sections 708.410-708.480. 1 ...
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MEMORANDUM RE SENTENCING Defendant is before the court for imposition of sentence on Count I of the Indictment in this case, charging a conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 371, 1014, & 1344. The facts of the offense are essentially undisputed. Defendant conspired with Richard Mittelman to cause three women to present falsified loan applications to federally ...
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MEMORANDUM AND ORDER This is an appeal of a bankruptcy court order denying appellant Dickinson’s motion to remand and abstain. This court questioned the nature of review of the bankruptcy court’s order in light of the Judicial Improvements Act of 1990. For the reasons set forth below, this court finds it has appellate jurisdiction over the order of the Bankruptcy Court. PROCEDURAL BA...
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Joseph Morgan petitioned for a writ of habeas corpus on the ground that his right to a fair trial was violated by the use of a security courtroom. The district court denied his petition. We have jurisdiction, hold that such a security measure is not inherently prejudicial and affirm. I Morgan was convicted in a California court of murder and conspiracy to commit murder, and was sentenced to l...
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946 F.2d 1443 Henry DEUTSCHER, Petitioner/Appellant/Cross-Appellee,v.Harol WHITLEY, Warden of the Nevada State Prison, and BrianMcKay, Attorney General of the State of Nevada,Respondents / Appellees / Cross-Appellants. Nos. 88-2552, 88-2579. United States Court of Appeals,Ninth Circuit. Oct. 15, 1991. David J. Burman, Perkins Coie, Seattle, Wash., for Henry Deutscher. ...
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We are asked to determine when a district court may vacate a labor arbitrator’s decision under either section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, or section 2 of the Declaratory Judgment Act, 28 U.S.C. § 2202. Facts Writers Guild of America, West, Inc. represents script writers in the motion picture industry. It entered into a collective bargaining agreement se...
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I. Factual and Procedural Background Internal Revenue Special Agent Richard Carl was contacted in August 1985 by Internal Revenue Agent Mulholland to investigate appellant Lonnie Schmidt. Carl posed as a Northern California representative in charge of collections for an organized crime gambling interest from Las Vegas. Carl and the Internal Revenue Service had learned that the appellant, along ...
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Opinion Smoketree-Lake Murray, Ltd., Brehm Construction Company and Forrest W. Brehm (hereafter Developer) appeal a judgment on a cross-claim for indemnification. On appeal, Developer contends the judgment must be reversed because the trial court erred in ruling a fraud finding barred indemnification and failing to find the jury committed misconduct. We reverse. Facts In 1985, t...
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Robert W. Hicks appeals his conviction for willful failure to file tax returns for the four years 1983 through 1986. Hicks argues that the Internal Revenue Service’s alleged failure to comply with the Paperwork Reduction Act precludes his being penalized for failing to file a return, that the charges against him must be dismissed because the IRS did not publish the 1040 tax return form as a rule ...
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Stephen W. Bentson appeals his conviction for willful failure to file tax returns for the years 1983 and 1984. Bentson argues inter alia that the Internal Revenue Service’s alleged failure to comply with the Paperwork Reduction Act (PRA) precludes his being penalized for failing to file a return, and that the charges against him must be dismissed because the IRS did not publish the 1040 tax ret...
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947 F.2d 374 21 Fed.R.Serv.3d 1284 Lillian CORDER, Roberta Lombardo, Plaintiffs-Appellees,v.Brad GATES, Sheriff, Defendant,andRoy Brown, et al., Defendants-Appellants.Lillian CORDER; Roberta Lombardo, Plaintiffs-Appellants,v.Brad GATES, Sheriff; Roy Brown, et al., Defendants-Appellees. Nos. 88-5555, 88-5588. United States Court of Appeals,Ninth Circuit. Argued and Submitted M...
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*7 Opinion —In an action concerning the alleged misappropriation of trade secrets, the trial court issued a preliminary injunction, restraining the defendants from soliciting any former customers of the plaintiff. The defendants challenge the plaintiff’s entitlement to injunctive relief, the form and scope of the injunction, and the adequacy of the amount of the undertaking speci...
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Opinion I. Introduction This case presents the question whether two excess insurers were required to provide coverage in the place of an insolvent underlying insurer. The trial court granted summary judgment pursuant to Code of Civil Procedure section 437c in favor of the two excess insurers. The trial court found that (1) the excess insurance policies were “not ambiguous with respec...
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*1799 Opinion Facts Appellant received a parking ticket for parking his unhooked boat trailer on a street in the City of Rancho Palos Verdes (the City), in violation of Rancho Palos Verdes Municipal Code section 10.04.010 (the ordinance). 1 After a court trial, appellant was ordered to pay a fine of $10, plus court costs and penalty assessment, for a total of $28. On appeal, appellant c...
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*1767 Opinion Petitioners William Lawson Martin III and Annette Martin (the Martins) seek a writ of mandate directing the trial court to grant their motion for summary adjudication of issues and declare invalid Ordinance No. 1069 enacted by real parties in interest, the City of Sierra Madre (the City) and the City Council of the City of Sierra Madre (the City Council). Ordinance No. 1069 impo...
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Opinion California was one of a number of states that during the mid-1980’s enacted an amnesty program which gave delinquent taxpayers a period within which to square unpaid or unreported accounts in *1755 exchange for the surrender by the state of its power to seek penalty surcharges and criminal sanctions. One of the issues presented here is whether such a delinquent taxpay...
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Defendants Furusawa Investment Corporation, Julale Investment Corporation, and Yasuda Shoji KK appeal from the decision of the Appellate Division of the United States District Court for the District of Guam affirming the judgment of the Superior Court of Guam in favor of plaintiff Guam Hakubotan, Inc. (“Hakubotan”). Hakubotan had procured a loan from Yasu-da, secured by a mortgage on real prope...
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947 F.2d 386 127 P.U.R.4th 192 PUBLIC UTILITY DISTRICT NO. 1 OF DOUGLAS COUNTY; PublicUtility District No. 1 of Chelan County; PublicUtility District No. 2 of Grant County,Petitioners,andPuget Sound Power & Light Company and Portland GeneralElectric Company, Petitioners-Intervenors,v.BONNEVILLE POWER ADMINISTRATION, Respondent. No. 89-70381. United States Court of Appeals,Nin...
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Jeffrey Brewer appeals from the denial of his motion to suppress evidence and his subsequent motion for a de novo evidentia-ry hearing. Thereafter, Brewer entered a conditional plea of guilty to possession of 109 grams of cocaine. Pursuant to Federal Rule of Criminal Procedure 11(a)(2), Brewer reserved the right to appeal the adverse ruling on his motion to suppress evidence and the ...
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Opinion —St. Sava Serbian Orthodox Church of Jackson, California (St. Sava) was formerly affiliated with the Serbian Eastern Orthodox Diocese of the United States and Canada, which in turn was a subordinate body of the Serbian Orthodox Church (the Mother Church), a hierarchical church centered in Belgrade, Yugoslavia. Following the defrocking by the Mother Church in 1963 of the bisho...
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Opinion —Defendant Donald Ivester agreed to plead guilty to unlawfully manufacturing methamphetamine in excess of one pound (Health & Saf. Code, § 11379.6, subd. (a)) and endangering a child (Pen. Code, § 273a) 1 in exchange for the district attorney dismissing two additional felonies with which he was charged. In this appeal from the judgment he contends his guilty pleas were ...
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Opinion —In this case we hold that a client is bound by her attorney’s written stipulation to a temporary judge in substantial compliance with rule 244, California Rules of Court. After three postponements of the trial of this marital dissolution action due to court congestion, respondent Jasper Crook’s attorney suggested to appellant Rayvesta Crook’s attorney that they have the matter tried by re...
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Opinion —The sole issue on appeal is whether plaintiffs and respondents Harry J. Gray and Helen Gray (taxpayers), who are Connecticut residents, are entitled to a credit against their 1979 and 1980 California nonresident personal income taxes for taxes which were paid to the State of Connecticut on California-source capital gains. We conclude that taxpayers are entitled to such a credit a...
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*444 Opinion Introduction After the denial of his motion to suppress evidence under Penal Code section 1538.5, defendant pled guilty to possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and to being under the influence of cocaine (Health & Saf. Code, § 11550). The court ordered three years of formal probation. Defendant appeals, claiming that the entry ...
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The Government appeals the district court’s judgment of dismissal. We affirm. See United States v. Verdugo Urquidez, 939 F.2d 1341 (9th Cir.1991). Verdugo held that the forcible abduction of a Mexican national from Mexico by agents of the United States without the consent or acquiescence of the Mexican government violates the 1980 Extradition Treaty between the United States and Mexico. 939...
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Opinion —The Town of Tiburón denied plaintiffs’ application for approval of the Marinero Estates master plan for development of their property. Plaintiffs sued, seeking a writ of administrative mandamus (Code Civ. Proc., § 1094.5), declaratory relief and damages for inverse condemnation. The trial court denied the petition for a peremptory writ, sustained respondents’ demurrer to the decl...
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Following a bench trial, the district court entered judgment for the defendant on Rosalyn Brooker’s claims that Desert Hospital refused to treat her and transferred her in violation of 42 U.S.C. § 1395dd and California law. We affirm. I On the evening of January 25, 1988, Brooker was admitted to Desert Hospital’s emergency room complaining of chest pains. She was diagnosed with a prob...
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Jaleh Nazemian appeals her conviction for conspiracy to possess with intent to distribute heroin, unlawful use of a communication facility in the commission of a drug trafficking crime, foreign travel in aid of narcotics trafficking, and interstate travel in aid of narcotics trafficking. She assorts that the district court’s admission of Drug Enforcement Administration (“DEA”) Agent Eaton’s tes...
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Sup. Ct. Cal. Certiorari denied....
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Opinion * —Eddie D., a minor, appeals from a judgment of the juvenile court finding on a supplemental petition (Welf. & Inst. Code, § 777) that he violated Penal 1 Code section 148 2 and committing him to the California Youth Authority. Procedural History On December 9, 1986, Eddie D. was named in a petition filed in the Kern County Juvenile Court al...
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Opinion —Plaintiff Computer Prepared Accounts, Inc. (CPA) appeals from an order denying its application for a preliminary injunction and awarding attorney’s fees and sanctions against it. We affirm, and also award $10,000 in sanctions to Jerome Marks, a professional corporation, for which CPA and James L. Dawson are jointly and severally liable. We award $10,000 to the court, for which Da...
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Opinion —Lorenzo M., Sr. (Lorenzo) appeals the judgment terminating his parental rights to Riva M., Robert M. and Lorenzo M. (Lorenzo, Jr.) pursuant to Civil Code section 232, contending: (1) the trial court erred by failing to adhere to the provisions of the Indian Child Welfare Act (ICWA); (2) the court’s findings were inadequate to support the judgment; (3) the court prejudiced Lorenzo...
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Opinion * —Vehicle Code section 13353.2 directs the Department of Motor Vehicles (the DMV) to suspend the driver’s privilege of a person who was “driving or was in actual physical control of a motor vehicle when *452 the person had 0.08 percent or more, by weight, of alcohol in his or her blood.” 1 Section 13558 entitles a driver to request what is in effect a presuspension administrative...
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235 Cal.App.3d 463 (1991) 286 Cal. Rptr. 600 ERNEST CHAVIRA, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, JOHNS-MANVILLE SALES CORPORATION et al., Respondents. Docket No. B051525. Court of Appeals of California, Second District, Division One. October 21, 1991. *465 COUNSEL Rose, Klein & Marias, Howard N. Lehman and Arlyn M. Egers for Petitioner. Phillip N. Bruce as Amicus Curiae on beh...
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Opinion —In these cases consolidated for appeal, plaintiff Shiseido Cosmetics (America) Ltd. (SCA) sought refund of franchise taxes resulting from defendant Franchise Tax Board (FTB) assessments applying the unitary tax method of worldwide combined reporting (WWCR) (Rev. & Tax. Code, 1 § 25101 et seq.) based on the determination that SCA was engaged in a unitary business with S...
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This case turns on a single issue: Does an examining physician have a duty under Washington law to inform those examined of abnormal test results, absent a doctor-patient relationship? We find that such a duty exists. We affirm the district court’s holding on liability but remand for a recalculation of damages. BACKGROUND George Daly suffers from sarcoidosis, an incurable lung disease. The di...
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We are in an unusual position for a federal appeals court. We must decide an issue of first impression under Arizona probate law. We are called upon to interpret Arizona’s statutory provision that a devisee who does not survive a testator by more than 120 hours is deemed to have predeceased the testator unless the will includes “some language dealing explicitly with simultaneous deaths or death...
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947 F.2d 417 Karla S. GROSINSKY, individually, as husband and wife, andas next friends and natural guardians of Veronica Grosinsky,individually as husband and wife, and as next friends andnatural guardians of Richard J. Grosinsky, a minor,Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee. No. 90-16256. United States Court of Appeals,Ninth Circuit. Submitted Oct. ...
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Opinion —Michael A. Grappo appeals from a judgment finding that he had no community property interest in certain real property located in Incline Village on Lake Tahoe in Nevada; that he was not entitled to the imposition of an equitable lien on the property; and that he had no interest in the property entitled to priority over the claims of respondents. It should be noted initially that ...
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Opinion —Following denial of their motions to suppress evidence under Penal Code section 1538.5, defendant and appellant Orlando RodriguesFernandez pleaded no contest, and defendant and appellant Mario Socorro Villapudua pleaded guilty, to possession for sale of cocaine and the allegation that the amount of cocaine exceeded 25 pounds. (Health & Saf. Code, *546 §§ 11351, 11370...
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Opinion —This is a petition for writ of mandate following respondent court’s denial of the motion of petitioner, Rosenfeld Construction Company, Inc., to disqualify the law firm of Wild, Carter, Tipton & Oliver (hereafter Wild) in its representation of real parties in interest, Paul Sivas and Jeanet Sivas. We grant the petition in part, directing respondent court to conduct a new hearing ...
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ORDER AND OPINION Petitioner seeks a writ of habeas corpus ordering his release from state prison. He alleges that the state violated his sixth amendment rights by failing to give him adequate notice that the prosecution intended to convict him of first degree murder under the theory of felony murder. I. The history of this habeas corpus proceeding is lengthy. In 1985 Usher filed his first ...
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Opinion On September 25, 1991, this court exercised its original jurisdiction by ordering issuance of an alternative writ of mandate contemplating the drafting and adoption by this court of reapportionment plans for the state’s legislative, congressional and State Board of Equalization districts. (Wilson v. Eu, ante, p. 471 [286 Cal.Rptr. 280, 816 P.2d 1306] [hereafter Wilson I]). *548...
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*597 Opinion —Appellant R. J. Reynolds Co., Inc. (Reynolds) contracted for services from Multi-Marketing, Inc. (MMI). MMI purchased liability insurance from Mission Insurance Co. and Mission National Insurance Co. (Mission), naming Reynolds as additional insured. While Mission was engaged in defending a claim against MMI, Reynolds and others, Mission became insolvent. Reynolds’s ...
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Opinion —Sandy Harris, owner and manager of Pacific Coast Screen Printing (hereinafter PCSP) in Milpitas, began doing business with defendant Debra Wolfe in April 1987. Defendant set up an account with Harris for PCSP to supply her business, Air Wolfe, with printed T-shirts and sweat shirts for defendant to distribute to military shows throughout the country. In July and August of 1987 Harris rece...
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Opinion —Defendant has appealed from a judgment of conviction entered following a guilty plea to one count of unlawfully possessing heroin for sale (Health & Saf. Code, § 11351). On appeal, defendant contends that the magistrate improperly denied his Penal Code section 1538.5 motion to suppress certain evidence, because, he argues: (1) the magistrate failed to make an explicit finding tha...
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Opinion J. * —Defendant appeals from his conviction of violation of Penal Code section 653w. The conviction was based on evidence which established that he possessed for sale some 4,500 audiotapes, identified by an expert witness as “pirate recordings.” By this appeal, he challenges the constitutionality of the statute, contending that it violates the First Amendment to the United States Cons...
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Opinion —In this case we hold that a trial court has inherent equitable authority to set aside a default judgment of forfeiture of real property at which drug trafficking had occurred, based on extrinsic fraud or mistake. The property at issue is a four-plex apartment building in Richmond. The owner, Jerline L. Wallace, is an absentee landlord who lives in Fairfield. On September 22,...
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Opinion —Appellant Cynthia Timmons (Timmons) successfully pursued her administrative mandamus action to obtain benefits under the state-mandated Aid to Families with Dependent Children-Foster Care (AFDC-FC) program 1 during a period when she was temporary guardian of two minor children. In the same lawsuit Timmons also sought an ordinary writ of mandate compelling Linda McMahon, Director of t...
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OPINION * Robert Bressette was convicted of possession of, and conspiracy to possess, methamphetamine with intent to distribute, in *1362violation of 21 U.S.C. § 841(a)(1). He was sentenced to 135 months in prison. He appeals his sentence on the ground that it was based on an improperly calculated offense level. We affirm. Bressette was found to have possessed at least 258.7 grams of seventy-thre...
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*561 Opinion Defendant Robert Henry Nicolaus appeals from a judgment of death imposed under the 1978 death penalty law. (Pen. Code, § 190.1 et seq.) 1 He was convicted of the first degree murder of his ex-wife, Charlyce Robinson. (§ 187.) A firearm-use enhancement was found true. (§ 12022.5.) The murder was committed in Sacramento County; defendant successfully moved for a change of venue a...
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Defendant Robsac Industries (“Robsac”) appeals the district court’s entry of summary judgment for Continental Casualty Company (“Continental”) on Continental’s action for declaratory relief and its summary denial of Robsac’s motion to stay the declaratory relief action pending the outcome of a parallel state court proceeding on the merits. This case raises the oft recurring problem of the proper r...
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947 F.2d 419 26 Collier Bankr.Cas.2d 126, 22 Bankr.Ct.Dec. 348,Bankr. L. Rep. P 74,303 Claude PITRAT, Trustee, Kendrick M. Mercer, P.C., and FirstInterstate Leasing Service Corporation, Movants-Appellees,v.Ronald S. GARLIKOV and Reda S. Garlikov, Respondents-Appellants.Stanley W. FOGLER, Trustee, First Interstate Leasing ServiceCorp., and Kendrick M. Mercer, Movants-Appellees,v.Richard Ja...
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This appeal arises out of an unusual dispute between a major government contractor and a subcontractor providing components for the United States Navy’s Trident II nuclear submarines. The contractor, Lockheed Missiles & Space Company, awarded a subcontract to the low bidder for the subcontract, the appellee Sulzer Bingham Pumps, Inc. Sulzer Bingham’s bid, however, was in fact millions of dollar...
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946 F.2d 1476 60 USLW 2325, 14 Employee Benefits Cas. 1617 Fred DAVIDOWITZ, D.D.S., Morris Davidowitz, D.D.S., DonaldDobbs, D.D.S., Waltraut Grau, D.D.S., and JeffreyP. Alexander, D.D.S., Plaintiffs-Appellees,v.DELTA DENTAL PLAN OF CALIFORNIA, INC., Defendant-Appellant. No. 90-16841. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 18, 1991.Decided Oct. 2...
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General Bedding Corporation appeals from a judgment of the United States District Court for the Central District of California granting summary judgment because the statute of limitations had run. We reverse because there is a genuine issue of material fact regarding constructive notice. FACTS AND PROCEEDINGS BELOW From 1974 to 1978, General Bedding, a Missouri corporation, designed, ...
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The estate of William Davidson Merchant III 1 appeals from a decision of the Tax Court denying litigation costs under 26 U.S.C. § 7430. We affirm. BACKGROUND This appeal has interesting origins. In 1981, Merchant’s residence was searched without a warrant by state officers, ostensibly on the theory that Merchant, as a probationer, had consented to the search as a condition of probation. The...
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Appellants Fred Hansen, Joanne Hansen, and Betty Tueller were employees of the Bear Lake County Sheriff’s Department. Upon the election of a new sheriff in 1983, appellants were given written notice that they were being terminated. Appellants brought suit in federal district court under 42 U.S.C. § 1983 charging that their terminations were in retaliation for their support of another sheriff ca...
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Appellant Salvador Martin (“Martin”) filed this suit for declaratory and injunctive relief against appellee Construction Laborers Pension Trust for Southern California (“CLPT”) under sections 301 and 302(c) of the Labor Management Relations Act (“LMRA”), 29 U.S.C. §§ 141-187 (1988). The district court granted summary judgment for CLPT on the grounds that the action was filed outside the statute of...
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Opinion —This is an appeal by defendant and cross-complainant, Roosevelt, from a judgment in favor of plaintiff and cross-defendant, Finalco, Inc., in an action arising from Roosevelt’s purchase of undivided co-ownership interests in certain computer equipment from the Dover Asset Group, Inc. (Dover). We affirm. Facts and Proceedings Below In December 1985, Dover offered undivided co-owners...
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Opinion —Michelle D. (mother) appeals from an order permanently freeing her nine-year-old daughter, Amber, from her custody and control pursuant to Civil Code section 232, subdivisions (a)(1) and (a)(7). 1 On appeal mother contends she was denied her due process right to confront witnesses when the trial court excluded her from her daughter’s testimony pursuant to section 232, ...
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Opinion —While the substantive nature of this action is forfeiture, this appeal is concerned solely with the narrowly circumscribed question of whether the time granted to file an amended petition was extended by five days under the provisions of Code of Civil Procedure section 1013. The ruling in question granted a motion for judgment on the pleadings with leave to amend. Notice of that ruling w...
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Opinion —Appellant Louis E. Webb, conservator of the estate of Wayne B. Combash, appeals from an order directing the sale of real property for the benefit of judgment creditor and respondent Mary Trippet. Webb contends that the trial court erred in finding that a declared homestead exemption did not apply because Combash, who has been missing since February 1988, had not resided continuou...
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ORDER This matter comes before the court on Ms. Satara Bryson’s petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.1 The petition came on for oral argument on Monday, September 16, 1991 at 10:00 a.m. The petitioner was represented by Diane Marie Amann, Assistant Federal Public Defender. The respondents were represented by George Christopher Stoll, Assistant United States Attorney. Th...
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ORDER This matter comes before the court on class counsel’s motion to modify the January 28, 1980 protective order in this case. Class counsel requests that the court modify the protective order to release from its coverage documents which pertain to State Farm’s recruitment and selection of trainee agents on the basis of their age so that those documents may be used in a separate age discriminat...
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54 Cal.3d 592 (1991) 818 P.2d 63 286 Cal. Rptr. 780 THE PEOPLE, Plaintiff and Respondent, v. ROBERT ANTHONY CAMARELLA, Defendant and Appellant. Docket No. S017787. Supreme Court of California. October 28, 1991. *595 COUNSEL Newsom, Giffen & Bacon, Newsom & Giffen and Brennan J. Newsom for Defendant and Appellant. John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Steve White, R...
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Opinion —Appellant James H. Davis, attorney for plaintiffs, appeals from the trial court’s imposition of sanctions against him in the amount of $184,867.08 which sum included reimbursement to respondent Southern Pacific Transportation Company for expenses of closing one line of its railroad operations. We have determined that the expense of closing railroad operations was not the proper subje...
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235 Cal.App.3d 752 (1991) 1 Cal. Rptr.2d 115 MARK J. HUGHEY, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant. Docket No. C007191. Court of Appeals of California, Third District. October 28, 1991. *754 COUNSEL John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Richard B. Iglehart, Chief Assistant Attorney General, N. Eugene Hill, Assistant Attorney Gen...
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*802 Opinion —Defendant was tried and convicted of three violations of Penal Code 1 section 243,4 (sexual battery) and two violations of section 149 (assault by a public official under color of authority). Imposition of sentence was suspended and defendant was placed on three years’ probation. On appeal he contends there was insufficient evidence to support the sexual batteries because ther...
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Opinion —The People appeal from an order of the Municipal Court of the Pasadena Judicial District, County of Los Angeles, under Penal Code section 1424, 1 recusing the office of the District Attorney of Los Angeles County and appointing the Attorney General of California to prosecute this felony case. 2 The defendant, Joe Robert Hernandez, is charged with assault with a deadly weapon upon...
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235 Cal.App.3d 788 (1991) 286 Cal. Rptr. 887 THE PEOPLE, Plaintiff and Respondent, v. JERRY REED STEELE, Defendant and Appellant. Docket No. C007701. Court of Appeals of California, Third District. October 28, 1991. *789 COUNSEL Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Richard B. Iglehart, C...
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*776 Opinion —The issue presented by this appeal is whether the California Environmental Quality Act (CEQA) requires that a school district complete an environmental impact report (EIR) during the course of selecting a site for a new high school, or whether it is sufficient if the district completes an EIR prior to acquiring such a site. “It is circumstance and proper timing that...
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Opinion —The County of Sonoma (the County) appeals from a judgment invalidating its tax on public entities that generate electricity from geothermal steam in the County. It contends that the constitutional exemption from property taxes for public property does not prohibit a tax on the use of public property. The Sacramento Municipal Utility District (SMUD) contends that the narrowly draw...
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948 F.2d 536 60 USLW 2327, 1991-2 Trade Cases P 69,624 ALASKA AIRLINES, INC.; Midway Airlines; Muse AirCorporation, Plaintiffs-Appellants,v.UNITED AIRLINES, INC., Defendant-Appellee.ALASKA AIRLINES, INC, Plaintiff,andNorthwest Airlines, Inc., Plaintiff-Appellant,v.UNITED AIRLINES, INC., Defendant,andAmerican Airlines, Inc., Defendant-Appellee. Nos. 90-55162, 90-55163. United Sta...
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Chen and Victoria Wang appeal from a dismissal of their civil action; they challenge three orders of the United States District Court for the Northern District of California. We vacate the first and second orders and remand to the district court for a new evidentiary hearing. We affirm the third order dismissing the Wangs’ constitutional claims against James Horio. DISCUSSION The Wang...
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I. The Supreme Court has remanded this case for reconsideration in light of the Court’s subsequent opinion in Edmonson v. Leesville Concrete Co., — U.S. -, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). When the case was previously before us, we affirmed a jury verdict on all grounds presented on appeal. The jury found Sky Chefs, a corporation, liable for the actions of its general manager, who se...
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If Berkeley, California, was the last bastion of sixties counterculture, Barrington Hall, the city’s oldest and largest student housing co-operative, was surely the last rampart. While much of Berkeley became stuffy and conventional, the residents of Barrington Hall clung to their freewheeling ways. A bit too freewheeling, according to two of Barrington’s neighbors. They claim that the co-op’s den...
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Collins Foods International 1 appeals from the decision of an Administrative Law Judge (ALJ) 2 holding Collins Foods subject to a civil penalty for hiring an alien, knowing him to be unauthorized to work in the United States, in violation of 8 U.S.C. § 1324a(a)(l)(A). 3 The ALT found that Collins Foods had constructive knowledge of the alien’s status, and that t...
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Opinion —Gary Adams (plaintiff) appeals from the judgment of the superior court denying his request for declaratory relief concerning his removal from the position of deputy sheriff. A deputy sheriff is a peace officer. (Pen. Code, § 830.1.) Anyone convicted of a felony in this or any other state is barred from employment as a peace officer (Gov. Code, § 1029; hereafter § 1029). After ser...
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*842 Opinion —The issue presented is one of first impression in this state: does DNA typing evidence meet the legal requirements for admissibility of novel scientific evidence and, if so, whether the basis for the calculation of statistical probability employed by the testing laboratory, Cellmark in this case, satisfied the foundation requirements of People v. Co...
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Opinion —This is an appeal from an order to tax costs, and a cross-appeal from an order awarding costs. These orders followed entry of judgment in a wrongful death and personal injury action brought by Ann L. Stallman and William Stallman as the administrator of the estate of Frank Stallman against Petal Pusher Flowers, Nelda Brennan and Elissa Bell. The main appeal is brought by the Stal...
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Opinion —Plaintiff Charles Stephen brought this individual and purported class action against defendants Enterprise Rent-A-Car of San Francisco and others (collectively Enterprise) 1 seeking relief, on various theories, for alleged unconscionably high rates charged by Enterprise for a risk-allocation option called collision damage waiver (CDW) in its rental contracts. Stephen a...
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948 F.2d 568 22 Envtl. L. Rep. 20,018 SIERRA CLUB, a California non-profit corporation; Committeefor Green Foothills, a non-profit corporation; Committeefor the Permanent Repair of Highway One, an unincorporatedassociation; Tyler Ahlgren; Dana Denman, Plaintiffs-Appellees,v.DEPARTMENT OF TRANSPORTATION, Elizabeth Dole, in herofficial capacity as Secretary of the U.S. Department ofTrans...
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948 F.2d 556 60 USLW 2343 CALIFORNIA UNION INSURANCE CO., Plaintiff,v.AMERICAN DIVERSIFIED SAVINGS BANK, Defendant,andNational Union Fire Insurance Company of Pittsburgh,Pennsylvania; Certain Underwriters at Lloyd's,London, Defendants-Cross-Defendants-Appellees,American Diversified Capitol Corporation; Federal Savingsand Loan Insurance Corporation, as Receiver for AmericanDiversified Sav...
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Opinion —Thoi Thanh Vo appeals from a judgment denying his petition for a writ of administrative mandate (Code Civ. Proc., § 1094.5) after the California Board of Medical Quality Assurance (Medical Board) revoked his license to practice medicine. Appellant contends the judgment must be reversed because he did not receive proper notice of the administrative revocation hearing. We affirm. I Facts O...
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Opinion —Linda Johnson appeals from the order reappointing the Public Guardian of El Dorado County as conservator of her person and estate under the Lanterman-Petris-Short Act (LPS Act). (Welf. & Inst. Code, § 5000 et seq.; further statutory references are to the Welfare and Institutions Code unless otherwise specified.) She contends (1) the evidence does not support the finding of grave ...
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Opinion —Annette and Paul B., Megan B.’s parents, filed separate notices of appeal after the permanency planning hearing in a dependency proceeding under Welfare and Institutions Code section 300.1 Annette contends the record fails to establish she knowingly and intelligently waived her rights when entering a plea of nolo contendere at the jurisdictional hearing, the evidence does not support the ...
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Opinion The Case This case deals with a common turn of events leading to life insurance litigation: A purchaser of life insurance died after he applied for a policy and paid the first month’s premium, but before the insurance company had an opportunity to accept the application and issue a policy. The company later refiised to pay the proceeds because of an alleged material misrepres...
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Petitioner was convicted by a jury in a California court of rape, burglary, robbery, and attempted robbery. His application for a writ of habeas corpus was denied, and he appeals the denial pro se. He claims the state trial court committed prejudicial errors that deprived him of due process by: (1) admitting evidence of an uncharged, nine-year-old prior rape of another woman to prove identity wit...
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The government appeals a downward departure from the Guideline sentence in this case of a repentant white collar embezzler who made restitution and pled guilty. David Joseph Berber’s Pre-Sentence Report calculated the adjusted offense level at 16, less two levels for acceptance of responsibility, leading to a level of 14. The resulting sentencing range was 15-21 months imprisonment and a fine. ...
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947 F.2d 1403 In re AL ZUNI TRADING, INC., Debtor.John R. McKEE, as Personal Representative of the Estate ofThomas N. McKee, deceased, Appellant,v.Jack G. PENICK, as Trustee for Al Zuni Trading, Inc., anArizona corporation, Appellee. No. 90-16064. United States Court of Appeals,Ninth Circuit. Submitted Oct. 8, 1991*.Decided Oct. 31, 1991. Nick Rayes, Phoenix, Ariz., for ...
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We consider whether federal court deference to Indian tribal courts is required when the assertion of tribal court jurisdiction comes on the eve of trial, years after the action was filed. I This action arose when an automobile accident occurred on December 20, 1982, on the Blackfeet Indian Reservation in Montana. Jess Crawford, Diane LaPlante, and Rodney Lane, all members of the Blackfeet Tr...
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Opinion —Orange County Employees Retirement System (OCERS) contends the trial court erred in ordering it to pay directly to the former wife of one of its members, one-half of the community interest in the retirement benefits earned by the member spouse, despite the fact he had not yet retired from service. We agree. I. Melvin and Jeanne Jensen had been married for 22 years when,...
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Opinion I. Introduction The County of Los Angeles (County) appeals from a judgment, after a jury trial, in favor of plaintiff Thomas Lee Coy and from the trial court’s denial of the County’s new trial motion. The County also challenges the trial court’s denial of its pretrial motion for summary judgment. The County contends that plaintiff’s suit for claim and delivery as well as conv...
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Opinion —Fremont Union High School District (FUHSD) expelled Matthew G. after he used, a stun gun during an altercation with another student. Upon review, the Santa Clara County Board of Education (County Board) determined that FUHSD lacked jurisdiction to expel Matthew G. and ordered him reinstated. FUHSD then petitioned for a writ of mandate ordering County Board to set aside its decisi...
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Opinion — Here we hold that although an employee of an unlicensed and uninsured subcontractor is covered by a general contractor’s workers’ compensation insurance (Lab. Code, 1 § 2750.5), the uninsured subcontractor may be liable in tort for injuries to the employee (§ 3706). We reverse the judgment of the trial court which was entered pursuant to the subcontractor’s motion for summary judgme...
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Opinion —Respondent Francis P. McGreehan (McGreehan) filed the instant action for declaratory relief against appellant California State Automobile Association (CSAA) to resolve a coverage question under the uninsured motorist provisions of his automobile insurance policy. CSAA appeals from a summary judgment entered in McGreehan’s favor. We reverse. I The essential facts are undisputed. McG...
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Opinion —We decide in this appeal that the 90-day limitations period of Code of Civil Procedure section 341a 1 “for the recovery or conversion of personal property, wearing apparel, trunks, valises or baggage” left at a hotel does not apply to actions seeking damages against the hotel based on negligence or breach of contract. 2 We therefore reverse the judgment with...
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Opinion —In the wake of an unsuccessful defense of a civil suit (see Ballou v. Master Properties No. 6 (1987) 189 Cal.App.3d 65 [234 Cal.Rptr. 264]) and other matters, plaintiff Richard W. Traweek and related entities (collectively Traweek) filed two malpractice lawsuits against his former attorneys and accountants. In the first (the Jacke matter), Traweek...
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Opinion Defendant Jose Leon Fuentes appeals from the sentence of death imposed on retrial after this court reversed the judgment of death in *711People v. Fuentes (1985) 40 Cal.3d 629 [221 Cal.Rptr. 440, 710 P.2d 240] (Fuentes I). In Fuentes I a jury had convicted defendant of first degree murder (Pen. Code, §§ 187, 189),1 attempted robbery (§§ 664, 211), and automobile theft (Veh. Code, § 10851)...
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Opinion —Plaintiff is a retired public school employee; defendants are the school district for which she worked, the district superintendent, and the school board. Defendants appeal from a summary judgment in plaintiff’s favor to the extent that it awards plaintiff a lump sum for vacation she earned but did not use during her employment. We conclude that a lump sum payment to plaintiff for vaca...
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*902 Opinion —A jury convicted appellant Charles Edgar Thomas of attempted premeditated murder (Pen. Code, §§ 187, subd. (a); 664), 1 assault with a firearm upon a peace officer (§ 245, subd. (c)), cruelty to an animal (§ 597, subd. (a)), first degree burglary (§ 459), and four separate firearm possession charges (§§ 12021, subd. (a) [two counts]; 12020, subd. (a); 12025, subd. (a)). The ju...
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Opinion —As originally enacted, Oakland Municipal Ordinance section 3-4.21 (hereafter the Ordinance) provided in pertinent part: “No person shall drink or have in his possession an open container of any alcoholic beverage: (1) On any public street, sidewalk, or other public way; (2) within 50 feet of any public way while on private property open to public view without the express permission of ...
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Opinion —In this appeal the critical question is whether a party who makes a defective demand for the exchange of expert trial witnesses pursuant to Code of Civil Procedure section 2034, 1 may obtain relief pursuant to section 473. Ancillary issues also tendered are whether the trial court abused its discretion in granting relief under section 473 by issuing an order compelling...
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Opinion —When a defendant is sentenced for both armed and unarmed robbery convictions, does Penal Code1 section 1170.95, subdivision (g) *1147impose a 10-year limit on all the consecutive subordinate terms for robbery or may subordinate terms for the unarmed robberies be imposed subject to a separate 5-year limit under section 1170.1, subdivision (a)? We will conclude the 10-year limit applies for...
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Opinion —In this case we consider whether the juvenile court has jurisdiction to entertain a petition under Civil Code section 232 1 to terminate the rights of one parent, while leaving the rights of the other intact, without a potential adoption being contemplated. We conclude that it does, but remand the action for further proceedings. Facts and Procedural Background Augusta V. married ...
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Appellant Reed Gilmore appeals a rejection of his oil and gas lease offer by the Bureau of Land Management (“BLM”). BLM refused the offer because it did not contain a personal, handwritten signature and the Interior Board of Land Appeals (“IBLA”) upheld that rejection, also denying appellant’s estoppel claim. The district court summarily affirmed the IBLA’s decision. We affirm. FACTUAL AND...
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Opinion —Defendant, Melodie Gail Johnson, was convicted by plea of guilty to kidnapping (Pen. Code,1 § 207, subd. (a)) and concealing and detaining a minor child (§ 278) and sentenced to eight years in state prison. She now appeals contending the trial court did not have jurisdiction to take her plea, nor to sentence her, because of its failure to determine her competency to stand trial pursuant t...
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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 May 29, 1981, the District Attorney of Placer County filed an information against defendant Douglas Scott Mickey. Count I charged that on or about September 29, 1980, defendant murdered Eric Lee Hanson. (Pen. Code, § 187.) Co...
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Opinion —Ralph Gamez (defendant) was convicted in a jury trial of attempted murder (count I) and assault with a firearm against the same victim (count II); assault with a firearm against three additional victims (counts III, IV, V); discharging a firearm from a vehicle (count VI); and discharging a firearm at an unoccupied vehicle (count VII). Enhancements for great bodily injury and great bodily...
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235 Cal.App.3d 1016 (1991) 1 Cal. Rptr.2d 265 MARYLYN S. RICE, Plaintiff and Respondent, v. DEAN WITTER REYNOLDS, INC., et al., Defendants and Appellants; RONALD REINHOLD, Defendant and Respondent. RONALD REINHOLD, Cross-complainant and Respondent, v. DEAN WITTER REYNOLDS, INC., et al., Cross-defendants and Appellants. Docket Nos. A051808, A052638. Court of Appeals of California, First District, ...
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948 F.2d 575 60 USLW 2321 AZUL PACIFICO, INCORPORATED, a California corporation,Plaintiff-Appellee,v.CITY OF LOS ANGELES, a municipal corporation, Defendant-Appellant.AZUL PACIFICO, INCORPORATED, a California corporation,Plaintiff-Appellant,v.CITY OF LOS ANGELES, a municipal corporation, Defendant-Appellee. Nos. 90-55853, 90-56066. United States Court of Appeals,Ninth Circuit. ...
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Opinion —In this opinion, we consider the definition of “museum” as used in article XIII, section 3, subdivision (d) 1 of the California Constitution and Revenue and Taxation Code section 202, subdivision (a)(2) 2 which together exempt from taxation property used for “museums that are free and open to the public.” Plaintiff Fellowship of Friends applied for a propert...
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Opinion Introduction Appellant Gino Oldham appeals from a judgment denying his petition for a writ of mandate to set aside respondent’s decision denying him Medi-Cal benefits. Statement of Facts On August 27, 1982, appellant was shot in the back and through the abdomen; the bullet traversed his colon, small bowel, pancreas, stomach and esophagus. Appellant underwent emergen...
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948 F.2d 607 60 USLW 2359, 14 Employee Benefits Cas. 1973 William J. MERTENS; Alex W. Bandrowski; James A. Clarke;Russell Franz, Plaintiffs-Appellants,v.HEWITT ASSOCIATES, an Illinois Partnership; Kaiser SteelRetirement Plan; Pension Benefit GuarantyCorporation, as statutory trustee of theKaiser Steel Retirement Plan,Defendants-Appellees. No. 90-16272. United States Court of Ap...
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I. OVERVIEW Appellants George Vernon Johns and Albert W. Haberkorn appeal the district court’s denial of their motion to suppress evidence in connection with their prosecution for conspiracy to manufacture methamphetamine. The district court found that although the search of appellant Johns’ storage locker did violate the Constitution, no suppression was required because the officers who c...
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947 F.2d 1412 14 Employee Benefits Cas. 1968 Robert Patrick HORAN, et al., Plaintiff,andJonnie S. Koch, Plaintiff-Appellant,v.KAISER STEEL RETIREMENT PLAN; Perma Pacific, Inc.; MonteH. Rial; Charles H. Black, et al., Defendants-Appellees.Robert Patrick HORAN, et al., Plaintiff,andErnest G. Dick, Plaintiff-Appellant,v.KAISER STEEL RETIREMENT PLAN; Perma Pacific, Inc.; MonteH. Rial; Ch...
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948 F.2d 588 Paris Hoyt CARRIGER, Petitioner-Appellant,v.Samuel A. LEWIS, Director of, DOC; Attorney General, Stateof Arizona, Respondents-Appellees.Paris Hoyt CARRIGER, Petitioner-Appellee,v.Samuel A. LEWIS, et al., Respondent-Appellant.Paris Hoyt CARRIGER, Petitioner-Appellant,v.Samuel A. LEWIS, et al., Respondent-Appellee (Two Cases).Paris Hoyt CARRIGER, Petitioner,v.Samuel A. LEWIS, et al...
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John Crumpton, IV, a six-year-old child, brought this civil rights action under 42 U.S.C. section 1983 against Los Angeles Police Chief Daryl Gates and several former police chiefs, current and former members of the Los Angeles Board of Police Commissioners, various known and unknown Los Angeles Police Department (LAPD) officers, Mayor Bradley, and the City of Los Angeles. Crumpton alleges that...
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948 F.2d 1105 14 Employee Benefits Cas. 1979 William J. MERTENS; Alex W. Bandrowski; James E. Clarke;Russell Franz, Plaintiffs-Appellees,v.Charles H. BLACK; Gerald G. Ferro; Richard N. Gary;Charles S. Holmes; Patrick J. Hunt; Robert Merrick;George M. Perry; Monty H. Rial; M. Edward Steward; MilesG. Yeagley, Defendants-Appellants,andKaiser Steel Retirement Plan, Defendant.William J...
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Opinion —Nicolas Marsch III and Cal-Colorado Investors, a California general partnership (collectively Marsch) appeal an order amending the California judgment entered upon a Colorado judgment pursuant to *1202 the California Sister State Money Judgments Act (Act) (Code Civ. Proc., 1 § 1710.10 et seq.) in favor of Aspen International Capital Corporation (Aspen) to ...
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Upon reconsideration, a thorough examination of the record has disclosed an abundance of material that was not included in appellant’s brief. Unfortunately, appellees filed no opposition brief nor any other papers before this court to assist us in deciding this matter. After reviewing the record, particularly the transcripts, we conclude that the district judge exercised commendable restraint i...
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with whom Circuit Judges CYNTHIA HOLCOMB HALL, BRUNETTI, DAVID R. THOMPSON, and FERNANDEZ join, dissenting: Our court has adopted an administrative policy that, once cases such as this are in the jurisdiction of a panel, the panel has the discretion to stay or decide the appeal and file a disposition. I assume the same policy applies to an en banc court. The panel, for good reasons, decided not to...
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948 F.2d 614 Wilson Lee CLOW, Jr., Lynne Ann Clow, Plaintiffs-Appellants,v.U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; JackKemp, Secretary of HUD, William Y. Nishimura,Regional Administrator, HUD, Defendants-Appellees. No. 90-35324. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 8, 1990.Decided Nov. 5, 1991. Howard L. Graham, Tacoma, Wash....
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A federal jury convicted Michael R. Tham for attempting to corruptly influence United States District Judge Stanley A. Weigel. Also convicted were Tham’s co-conspirators: ex-crime figure Abraham Chalupowitz, alias “Trigger Abe” Chapman, and United States District Judge Robert P. Aguilar. Tham was found guilty under 18 U.S.C. § 1503 for the substantive offense of endeavoring to influence the due...
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Opinion —This lengthy and acrimonious litigation involves the sale of the Rancho Las Palmas Shopping Center, a 165,472-square-foot commercial complex located in Rancho Mirage, California. Appellants Las Palmas Associates et al., built and sold the property to respondents Las Palmas Center Associates et al. When a dispute arose concerning their duty to guaranty the rents of two tenants, ap...
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*1290 Opinion —This is a petition for mandate or prohibition arising under the Uniform Child Custody Jurisdiction Act (UCCJA, Civ. Code, § 5150 et seq.) and raising questions of modification jurisdiction and personal jurisdiction over the out-of-state parent. The parties were divorced in Ohio. The Ohio court decree provided for child custody and support. The custodial parent...
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Opinion —In these consolidated cases, we decide the issue of whether a trial court may lawfully give a statutorily classified “career criminal” an “indicated sentence.” We hold that the statutory scheme governing the prosecution of “career criminals,” Penal Code section 999b et seq., does not prohibit a trial court from indicating the sentence it will impose if a given set of facts is confirmed...
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OPINION This adversary proceeding arises out of a Chapter 11 case commenced on February 19, 1987. The complaint was filed prior to the debtor’s ultimate confirmation of a plan of reorganization. The plaintiff, Mutual Insurance Company of New York, by its prayer seeks a determination by this court that the claims of defendant COUNTY OF FRESNO be adjudged a violation of the automatic stay an...
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Darrell Baclaan appeals the district court’s order imposing a sentence of two years imprisonment upon the revocation of his supervised release. He contends that the court erroneously found that he “possessed” methamphetamine within the meaning of 18 U.S.C. § 3583(g). He also contends that, pursuant to U.S.S.G. § 7B1.4(b)(2), a policy statement, the district court should have sentenced him to a on...
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Opinion —Plaintiff National Solar Equipment Owners’ Association, Inc. (the Association), as a representative of its individual members, appeals from the trial court’s order denying class certification. Such an order is appealable. (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470 [174 Cal.Rptr. 515, 629 P.2d 23].) We find the trial court erroneously relie...
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ORDER On October 16, 1991, we issued an unpublished order denying appellant’s motion for bail pending trial. We now publish this order to explain our October 16,1991 order. BACKGROUND In February, 1990, appellant Wayne Patrick Gebro was charged with one count of aiding and abetting an armed bank robbery. 1 A magistrate judge ordered Gebro detained pending trial. On...
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Jose Vicente Agualó appeals from a judgment of the Appellate Division of the District Court of Guam affirming his conviction in the Superior Court of Guam. After a jury trial, Agualó was convicted of first degree criminal sexual conduct under circumstances involving the commission of another felony, in violation of 9 Guam Code Ann. §§ 25.15(a)(3) and (b). Agualó contends the Superior Court erred ...
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Opinion —The respondent court granted real party’s petition to vacate an arbitration award in petitioners’ favor. Petitioners seek a writ of mandate directing the respondent court to vacate its order. Facts and Procedural History Petitioners (the Brinkers), New Jersey residents, filed an action in the New Jersey Superior Court, Chancery Division, for specific performance and dam...
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Opinion Joan and David Ahem appeal from a judgment of dismissal entered after the trial court granted a motion for summary judgment. At issue is whether the terms of Insurance Code 1 section 11580.2 regarding mandatory uninsured motorist coverage apply to a policy issued to cover driving in Europe and North Africa. *40 Facts In September 1982, the Aherns, res...
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dissenting: While I agree with the discussion in parts IV A. and B., I respectfully disagree that judgment cannot be entered in favor of the defaulting party, particularly in this case. I recognize that no authorities exist that specifically authorize the entry of a judgment in favor of the defaulting party after the bankruptcy court holds a hearing, considers evidence pursuant to Rule 55(b)(2), a...
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E. Gene Wade and Joyzelle I. Wade appeal from the judgment of the Bankruptcy Appellate Panel (“BAP”) of the Ninth Circuit. The main issue on appeal is whether the disciplinary proceedings brought *1123 against Mr. Wade by the State Bar of Arizona are excepted from the automatic stay under 11 U.S.C. § 362(b)(4). The BAP held that such proceedings are excepted. Wade v. State Ba...
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OPINION OVERVIEW The bankruptcy court awarded summary judgment in favor of Appellees, determining that they were entitled to the debtor’s accounts receivable that had been collected by Appellant bank and awarding prejudgment interest to Appellees, but not attorney’s fees. Appellant bank alleges that the *636 court lacked jurisdiction to determine the dispute; that the co...
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*1346 Opinion —Raul Corona Cardenas appeals the judgment of the trial court denying his petition for writ of mandate. (Code Civ. Proc., 1 § 1085.) Appellant claims a writ should have issued to the sheriff ordering him to restore appellant to possession of certain real property because the sheriff wrongfully evicted him. Appellant contends his eviction was unlawful beca...
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Opinion —During an altercation, Fire Insurance Exchange’s insured, Michael Joseph Altieri, a minor, struck another minor, Greg Story, in the face. Story sued Altieri for damages for assault and battery and sued Altieri’s parents for negligent supervision. Pursuant to a stipulated judgment, Altieri and his parents were required to pay Story $310,000 for his injuries if their homeowner’s in...
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*1313 Opinion —On this appeal we determine the sentence enhancement defined in Penal Code 1 section 186.22, subdivision (b), enacted as part of the Street Terrorism Enforcement and Prevention Act (the Act), is facially constitutional and constitutional as applied in this case. Factual and Procedural Background 2 On February 7, 1990, at about 5 p.m., Alberto R., a member of the 38th St...
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Opinion At a contested review hearing involving Lee G., who had been a dependent child of the juvenile court for 18 months, the attorney for Lee’s mother, Diane G., made an unnoticed oral motion to recuse the office of county counsel from representation of the petitioner in the dependency action, the department of social services (the Department). Since Diane was under an LPS conservatorship (Lan...
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Opinion —Monette Kupiec argues the trial court erred in sustaining without leave to amend a general demurrer to her second amended complaint. That complaint sought damages from Landmark Insurance Company (Landmark) and American International Adjustment Company (American) and others for alleged tortious interference with an earlier insurance claim and civil action, intentional concealment ...
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Opinion —A jury found (1) that Richard Lee Parento had committed the felony of second degree burglary, (2) that he was legally sane at the time of the commission of that crime, and (3) that he had suffered the prior convictions and had served the separate prison terms alleged in the information filed against him. 1 Appellate counsel, pursuant to People v. Wende (1979) 25 Cal.3d 436 [158...
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Opinion —Respondent, Robert Henry Schunk, was charged with possession of marijuana for sale (Health & Saf. Code, § 11359). On *1336April 18, 1990, through counsel, respondent filed a motion to suppress evidence pursuant to Penal Code section 1538.5. After several continuances because of respondent’s failure to appear at the suppression motion, the motion was denied by the trial court “without pre...
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Opinion —In a proceeding initiated to obtain disability benefits by real party in interest Ed Gallegos, California Unemployment Insurance Appeals Board (Board) appeals from a judgment ordering issuance of a peremptory writ of mandate. The writ commands it to set aside a decision holding that Gallegos was an employee of Santa Cruz Transportation, Inc., doing business as Yellow Cab Company ...
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DECISION DENYING DEFENDANT LOTHIAN’S PETITION FOR WRIT OF ERROR CORAM NOBIS This matter came on for hearing before the Court on October 16, 1991 on Defendant Lothian’s Petition For Writ Of Error Coram Nobis. The Court has considered the Petition and the supporting papers, the government’s response thereto, together with all the files and records herein, including materials file...
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This is an action by the United States against Richard and Eileen Gottlieb. The Gottliebs had guaranteed the payment of a Small Business Administration loan and the United States seeks to enforce the guaranty. The issue on appeal is whether the SBA’s action is barred by the six-year statute of limitations contained in 28 U.S.C. *1129 § 2415(a). 1 There is no question that the underlying loan ...
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ORDER On August 28, 1991, this Court heard defendant’s motion for summary judgment and plaintiffs’ motion for partial summary judgment. Paul E.B. Glad of Sonnenschein, Nath & Rosenthal appeared for defendant American Guarantee & Liability Insurance Company. Raymond C. Oleson appeared for plaintiffs James B. Lunsford, Regina T. Charboneau, and Bay Vista Enterprises, Inc. Having considered ...
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MEMORANDUM AND ORDER Plaintiffs are a class of California recipients of Aid to Families with Dependent Children (“AFDC”) who require child care in order to participate in educational or training activities likely to assist them in securing employment and ultimately removing themselves from welfare. In a Memorandum and Order dated June 7,1991 (“Memorandum and Order”), 768 F.Supp. 1331, this Cour...
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*385ORDER AND OPINION RE DEFENDANTS’ MOTION TO COMPEL AND PLAINTIFF’S MOTION FOR RECONSIDERATION On May 14,1991, the court ordered plaintiff’s expert witness, Dr. Bruch, to respond to deposition questions and produce documents regarding communications between plaintiff’s counsel and Dr. Bruch which relate to subjects about which Dr. Bruch is expected to testify. Subsequently, plaintiff filed a mo...
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Opinion I. Introduction In this case we affirm a $5,227,617 judgment in a class action which challenged Wells Fargo Bank’s assessment of fees against credit card customers who failed to make timely payments or exceeded their credit limits. *1389 We hold as follows: (1) although there is no right to a jury trial on an affirmative claim for relief from liquidated damages,...
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Opinion I. Introduction This case is a companion to Beasley v. Wells Fargo Bank, A048490, ante, page 1383 [1 Cal.Rptr.2d 446], in which we affirm a $5,227,617 judgment in a class action which challenged Wells Fargo Bank’s assessment of fees against credit card customers who failed to make timely payments or exceeded their credit limits. In the present...
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MEMORANDUM AND ORDER The Court now considers whether or not the retention of plaintiff Elmer “Gerónimo” Pratt in administrative segregation is justified based upon the charges of marijuana trafficking and possession as to which he was found guilty after separate disciplinary hearings. Plaintiff is a maximum security prisoner in the California Correctional Institution at Tehachapi (“Tehach...
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Merryl Alban Farrier appeals his sentence to a prison term of 147 months and five years of supervised release under the Sentencing Guidelines upon his guilty pleas to three counts of armed bank robbery (Counts 1, 3 and 4) in violation of 18 U.S.C. § 2113(a)(d) and one count of use of a firearm during a crime of violence (Count 2) in violation of 18 U.S.C. § 924(c). This court has jurisdiction pur...
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Opinion —Penal Code section 12022, subdivision (c) 1 provides that persons committing specified narcotics offenses who are “personally armed” shall have a three-, four-, or five-year enhancement to the term of imprisonment otherwise ordered. Kenneth Martin Pomilia was charged with an enumerated offense and this enhancement was alleged. On Pomilia’s motion the enhancement was st...
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Opinion —In this case we consider the right of parties having the physical custody of a minor to participate as de facto parents in the dispositional hearing phase of a dependent child proceeeding. Connie and Wayne S. appeal from a dispositional order of the juvenile court stemming from a hearing in which they were not allowed to participate as de facto parents. Appellants contend that the court ...
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Opinion —Gerardo Angeles Romero appeals from an order denying his motion to modify or terminate probation and to obtain release from penalties. Factual and Procedural Background * On August 4, 1988, appellant pled guilty to one count of sexual battery (Pen. Code, § 243.4, subd. (a)). 1 On February 24, 1989, imposition of sentence was suspended and appellant was placed on probation for...
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Opinion —The defendant was convicted of robbery, a serious felony (Pen. Code, §§ 211, 1192.7, subd. (CX19) 1 ), and of attempting to dissuade the victim from testifying against him by threat of force or violence (§ 136.1, subds. (a), (b) and (c)(1)). He was also found to have prior convictions for assault with intent to commit robbery (§ 220), attempted rape (§§ 664/261, subd. ...
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Opinion —Plaintiff/appellant Frances Snoke appeals a summary judgment in favor of defendant/respondent William B. Bolen, D.D.S., in her dental malpractice action. She challenges the trial court’s ruling that her action was barred by the statute of limitations. (Code Civ. Proc., § 340.5.) 1 Facts In November 1986 respondent Bolen, appellant’s dentist, referred her to Dr. ...
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*1507 Opinion —The issue in this appeal is whether conviction of violating Vehicle Code section 20001, commonly referred to as “hit and run,” may justify a restitution order requiring the defendant to pay for the injury caused by the underlying accident. As we shall explain, we conclude that conviction of such offense alone is legally insufficient to support such an order. Facts Appella...
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Opinion —Freva Short Dossman appeals her conviction by guilty plea of possession of marijuana for sale. (Health & Saf. Code, § 11359.) She contends the evidence supporting her conviction was the product of an unlawful search and seizure, and that the court erred in sentencing her to the upper term. We affirm. Procedural History Appellant was charged by complaint with possession ...
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MEMORANDUM OPINION AND ORDER INTRODUCTION In Mid-1988, in an effort to ameliorate the increasing divisiveness and tension in the nursing staff of the Mother/Baby Unit (“M/B Unit”) of the Pomona Valley Community Hospital, certain members of management announced a rule prohibiting the use of Tagalog, the native language of the Phillipines, by Filipina nurses during the evening shift of the M/B ...
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*1482Opinion —Canord Investment Company1 appeals from the trial court’s judgment which held, because respondent Pacific Bell’s telephone facilities were a permanent nuisance, plaintiff’s cause of action was barred by the three-year statute of limitations for a permanent nuisance/trespass. Plaintiff contends the nuisance was instead continuing and, therefore, its cause of action was not barred by t...
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Opinion —Attorney Harold L. Collins (Collins) appeals from the trial court’s order awarding Attorney Thomas J. Miller (Miller) $1,500 in sanctions (Code Civ. Proc., §§ 128.5, 904.1, subd. (k)) 1 against Collins. Collins and Miller sought sanctions against each other in the underlying case. We reject Collins’s contention that the trial court should have awarded him sanctions aga...
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Opinion —We hold that Code of Civil Procedure section 583.340, subdivision (c) tolling includes the aggregate time a case is continued because of courtroom unavailability regardless of whether a reasonable time remains *1475to bring the action to trial before the expiration of the five-year limitation period.1 Dawn M. Chin appeals from an order dismissing her civil action for failure to bring the...
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*1498Opinion —Western Natural Rubber, Inc., Eberhard and Brigitte Kleinmann and Otto and Johanna Wittschier (referred to as “property owners”) appeal from that portion of the judgment of condemnation in which the trial court denied them relief on their cross-complaint for inverse condemnation. I Facts In March of 1987, the State of California (State) brought an eminent domain action to acquire cer...
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235 Cal.App.3d 1548 (1991) 1 Cal. Rptr.2d 507 THE PEOPLE, Plaintiff and Respondent, v. KENT JOHN BEGNAUD, Defendant and Appellant. Docket No. E009064. Court of Appeals of California, Fourth District, Division Two. November 15, 1991. *1550 COUNSEL John Ward and Eric Weaver, under appointments by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamso...
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Opinion —The California Department of Motor Vehicles (DMV), appeals from judgment granting a writ of mandate. The trial court directed DMV to set aside its order suspending respondent Mark Anthony Payne’s (Payne) driving privilege for failure to submit to a blood, breath, or urine test as required by Vehicle Code section 13353, 1 the implied consent law. DMV contends Payne’s conduct constitut...
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Opinion —Brenda Procel (Procel) appeals from a preliminary injunction which restricts certain speech and activities. She contends that the injunction improperly interferes with her First Amendment rights. Facts Paradise Hills Associates (PHA) is the owner and developer of Paradise Hills Subdivision (Paradise Hills) in Colton. Paradise Hills consists of three phases. Phase 1 cont...
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ORDER Plaintiff in the above captioned action has moved for attorney’s fees and expenses. Defendant timely opposed the motion. The matter was set for oral argument on March 25,1991 at 9:00 a.m. After review of the papers filed, the Court determined that all of the issues had been adequately briefed and removed the matter from the Court’s law and motion calendar pursuant to Federal Rule of Civil...
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C. A. 5th Cir. Certiorari denied....
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*749OPINION Appellee/Defendant Imperial Savings & Loan Association (“Imperial”) sold real property at a foreclosure sale. Thereafter Appellant/Plaintiff BFP filed its Chapter 11 petition and brought an adversary suit to avoid the sale as a § 548(a)(2) transfer for less than reasonably equivalent value. Imperial moved for and was granted summary judgment. BFP appealed. We AFFIRM. BACKGROUND In 198...
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Opinion Review was granted in this matter to determine the effect, if any, of a 1982 amendment of Labor Code section 3602, 1 on the right of a person who suffers an industrial injury to sue a coemployee physician whose treatment allegedly aggravated the injury. The Court of Appeal held that while section 3602, as amended, no longer permits actions against a physician employer u...
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Opinion —In this case we hold that when a law firm quotes specific hourly rates for the services of named attorneys to a prospective client who then agrees in writing to pay the firm’s “regular hourly rates,” the law firm cannot raise the rates charged by the named attorneys without first notifying the client. *1571 Kenneth W. and Myra Sue Bolinger appeal from a judgment in ...
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Opinion —Appellant Thurston Sonrea Hollis was sentenced to 12 years in prison 'after a jury convicted him of violating Penal Code sections 245, subdivision (a)(1) (assault great bodily injury with a deadly weapon), 288a, subdivision (c) (forcible oral copulation), 261, subdivision (2) (forcible rape), and 289 (genital penetration by foreign object). He contends his conviction must be reversed b...
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Opinion The Board of Registered Nursing disciplined Audrey T. Morton for unprofessional conduct by revoking her license, staying revocation, and placing her on probation for one year, subject to ten enumerated terms and conditions. Morton challenged the discipline in a petition of writ of mandate to the superior court, ostensibly per Code of Civil Procedure section 1085. The board argued Morton...
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Opinion —Wilma M. Rittenhouse (petitioner) is the administrator of the estate of Albert Leonard White (Albert). Petitioner moved in the superior court to quash several deposition subpoenas issued and served by real party in interest Leland Stanford Junior University (Stanford) seeking Albert’s medical records in the hands of hospitals and physicians. The motion to quash was denied. Petiti...
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235 Cal.App.3d 1621 (1991) 1 Cal. Rptr.2d 534 GARY J. KAZANJIAN, Plaintiff and Appellant, v. RANCHO ESTATES, LTD., et al., Defendants and Respondents. Docket No. D010325. Court of Appeals of California, Fourth District, Division One. November 19, 1991. *1623 COUNSEL Jones, Hatfield, Penfield, Barden & Finegold and Thomas E. Polakiewicz for Plaintiff and Appellant. Raffee, Edwards & Leutho...
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Opinion —Defendant pled guilty to second degree murder and was sentenced to a term of 15 years to life. On appeal, she contends that the trial court erred in finding her statutorily ineligible for probation. We agree and therefore reverse. Facts 1 The body of Raul Contreras was found on December 17, 1989, by the side of a road in the unincorporated area near Hemet, California. He had been...
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Opinion Introduction David Edwards appeals the judgment of the Alameda County Superior Court convicting him of violation of Health and Safety Code section 11370.1 (possession of half a gram or less of a substance containing cocaine base while in the immediate personal possession of a loaded firearm). His sole contention on appeal is that Health and Safety Code section 11370.1 denies equal p...
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Opinion —The People appeal from the pretrial dismissal of this case, in which Robert Lee Griffin was charged with the 1980 murder of one of his fellow prison inmates at Chino’s California Institution for Men. *1742 Griffin was first tried and convicted for the killing several years ago, but this court reversed his first degree murder conviction due to jury instruction error....
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Opinion —Is the Federal Deposit Insurance Corporation (FDIC), acting as manager of the Federal Savings and Loan Insurance Corporation *1751 (FSLIC) Resolution Trust and receiver for an insolvent savings and loan, protected from a claim of fraud when the debtors have performed their obligations? Relying on D’Oench, Duhme & Co. v. Federal Deposit Ins. Corp. ...
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54 Cal. 3d 744 (1991) 819 P.2d 14 1 Cal. Rptr. 2d 556 MELLET STANGVIK et al., Plaintiffs and Appellants, v. SHILEY INCORPORATED et al., Defendants and Respondents. JENNY MIKAELA MARIE THERESE BIRGITTA KARLSSON et al., Plaintiffs and Appellants, v. SHILEY INCORPORATED et al., Defendents and Respondents. Docket No. S018015. Supreme Court of California. November 21, 1991. *748 COUNSEL Robins, Kaplan...
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Opinion J.—Plaintiff appeals from the grant of defendants’ claim of statutory homestead exemption under Code of Civil Procedure section 704.720, subdivision (b). 1 Plaintiff contends defendants are not entitled to the statutory homestead exemption because the sale of defendants’ home under a power of sale in a deed of trust was not in execution of a money judgment, as required ...
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Opinion * —Appellants, Building Industry Association of Northern California (BIA), Perini Land and Development Company (Perini), and others, filed petitions for writs of mandate and for declaratory and injunctive relief, in which they sought to invalidate an ordinance adopted by respondent, the Marin Municipal Water District (the District), prohibiting new water connections in the District’s ...
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Opinion * —The Marin Municipal Water District (the District) declared a water shortage emergency in its service area in 1989 and imposed a moratorium on new service connections, pending the development of new water supplies. Before imposing the moratorium, the District issued an environmental impact report (EIR) concluding that the proposed restriction would have no significant adv...
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235 Cal.App.3d 1670 (1991) 1 Cal. Rptr.2d 778 THE PEOPLE, Plaintiff and Respondent, v. KENNETH JACKSON, JR., Defendant and Appellant. Docket No. A048169. Court of Appeals of California, First District, Division Four. November 20, 1991. *1673 COUNSEL Dale Dombkowski, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief...
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*1597 Opinion —In a medical malpractice action predicated upon delayed diagnosis and treatment of lung cancer, the jury rendered a verdict in favor of plaintiff Kenneth Dumas and against defendants David Cooney, M.D. and Alfred Spivack, M.D. It awarded plaintiff damages of $321,400. The trial court entered judgment accordingly, and defendants appeal. Defendants contend that the trial court er...
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*153 Opinion Defendant Ann M. O’Neill appeals from summary judgment in favor of plaintiffs Joseph E. Di Loreto, Inc., a professional law corporation, and Joseph E. Di Loreto (Di Loreto) for the amount of $313,666.73 plus costs on Di Loreto’s claim against O’Neill for breach of a written employment agreement. Factual and Procedural Background We set out only the allegati...
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Opinion In this case appellants Barbara Hoffman-Haag and John Haag argue that neither a motion for new trial under Code of Civil Procedure 1 section 657 nor a motion to vacate under section 663 may be based on a previously unasserted rule of law. In the particular circumstances presented here we reject their contention and affirm the judgment. Factual and Procedural Summar...
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Opinion I In this case we explore an employer’s duties under Labor Code section 2802, 1 which requires an employer to “indemnify” his or her employee “for all that the employee necessarily expends or loses in direct consequence of the discharge” of the employee’s duties. 2 As explained below, the employer’s duties include reimbursement of funds the employee “nec...
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Opinion In this case we consider and reject a minor’s claim that the voluntariness of his confession should have been evaluated under a fundamentally different standard of proof than is applicable to adult criminal *72 defendants. We hold that in juvenile cases, as in prosecutions of adults, the People need only prove voluntariness by a preponderance of the evidence. Ave...
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Opinion In 1987, the governing board of the Milpitas Unified School District (District) passed two resolutions which authorized the levy of a “school facilities fee” of $1.50 per square foot on new residential development and $0.25 per square foot on new commercial and industrial development throughout the District. Developers were required to pay fees in those amounts to the District as ...
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*192 Opinion Plaintiff Roger E. Stewart was horribly burned when the antenna he was installing on a roof came into contact with a high voltage wire, sending a surge of electricity through his body. In this action for strict liability, the plaintiff and his wife, Lora, claim the antenna was defectively insulated and failed to carry an adequate warning. But the manufacturer of the ...
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*205 Opinion In this case we confront a conundrum created by the interplay of various provisions of the Code of Civil Procedure governing the contents of complaints, the service of process, and the methods of obtaining a default judgment. Under the express statutory scheme, there is no provision for a defaulting defendant in a personal injury action who had been served by publica...
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Opinion In this case we hold that Probate Code sections 8465, subdivision (a) and 8402, subdivision (a)(4), preclude a decedent’s nonresident heirs from nominating the administrator of his estate. San Francisco Public Administrator Ricardo Hernandez appeals from a probate order naming Gene Marchi administrator of the estate of Otto Damskog. Damskog died intestate on August 9,1990, leaving as heir...
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Opinion In this case we hold that the “maintenance allowance” benefit provision created by workers’ compensation reform legislation does not apply retroactively to injuries which occurred before its effective date. Background Temporary disability indemnity (TD). Workers who are partially or totally temporarily disabled due to an industrial injury receive “temporary disabi...
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*770 Opinion The Review Department of the State Bar Court (review department) has recommended that petitioner Cynthia S. Calvert be suspended from the practice of law in California for three years, that execution of the suspension order be stayed, and that she be placed on probation for one year upon conditions that include actual suspension from the practice of law for six month...
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Opinion After a jury trial, appellant was convicted of unlawfully taking or driving an automobile (Veh. Code, § 10851) and resisting arrest (Pen. Code, § 148). The vehicle in question, a 1965 Volkswagen, was stolen from the front yard of the home of James Love in Santa Rosa on July 3, 1989. Appellant was found in possession of the vehicle when detained by the police the next day. Appellant testifi...
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Opinion By a complaint filed on January 21, 1988, in the Superior Court of Contra Costa County, Michael S. Johnson (hereafter Johnson) and his wife, Minnie L. Johnson (hereafter collectively respondents), brought this action for personal injury and loss of consortium against Tosco Corporation (hereafter Tosco) and certain other defendants, who were later dismissed. The jury returned a spe...
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*321Opinion Statement of the Case Defendant Mark Carlton Anderson appeals from a judgment entered after he pled guilty to driving under the influence (DUI) and driving with a suspended license. (Veh. Code, §§ 23152, subd. (a) and 14601.2, subd. (a).)1 Pursuant to his plea bargain, defendant moved to strike an alleged 1987 DUI conviction on the ground that the underlying guilty plea was obtained ...
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*290 Opinion Introduction Defendant Anthony Louis King appeals following his convictions for the murders and robberies of Steve Patton and Raymond and Dawn Rogers. The crimes occurred over Labor Day weekend in 1987. Kenneth Bivert fired the shot which killed Steve Patton in the early morning hours on Sunday; both Bivert and defendant shot the Rogerses the following Tuesday. Defendant did no...
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Opinion In this case, arising out of the 1978 death penalty law, defendant was convicted of the first degree murder of Vanessa Iberri (Vanessa) and the attempted first degree murder of Kelly Cartier (Kelly). (Pen. Code §§ 187, 664.)1 The jury found that defendant personally used a firearm during the commission of both offenses (§ 12022.5), and intentionally inflicted great bodily injury on Kelly....
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Opinion Pursuant to a negotiated disposition, defendant and appellant Dennis V. McGuire (appellant) pleaded guilty in the municipal court to being an ex-felon in possession of a firearm (Pen. Code, § 12021). Two other charges and an allegation of a prior felony conviction were dismissed. A condition of the plea was that appellant would be sentenced to state prison for the lower term of 16 months. ...
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Opinion Plaintiff L. Byron Culver & Associates (Culver) appeals a judgment barring recovery of a brokerage commission from a land sale. Culver contends the court erred in finding, after a nonjury trial, an agency relationship existed between Culver and defendant Jaoudi Industrial & Trading Corporation (Jaoudi Industrial) resulting in an undisclosed dual agency. Culver further contends eve...
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Opinion The primary question presented is whether a concerted series of intermittent work stoppages by public employees can constitute an emergency which exempts the public agency employer from the “meet and confer” obligation imposed by the Meyers-Milias-Brown Act (Gov. Code, § 3500 et seq.). 1 Our answer is yes. Background In the summer of 1989, the County of Sonoma...
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Opinion A jury convicted George Barney Cumpian (defendant) of second degree robbery, and, in a bifurcated court trial after a jury waiver, the court found that he had suffered a prior term of imprisonment pursuant to Penal Code section 667.5, subdivision (b). 1 He was sentenced to prison for the midterm of three years for the robbery, with a consecutive term of one year for the...
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Opinion Gregorio C. Funtanilla appeals his conviction by jury trial of rape in concert (Pen. Code, § 264.1) 1 and two counts of oral copulation in concert. (§ 288a, subd. (d).) He challenges firearm use enhancements (§ 12022.3, subd. (a)) to the rape in concert conviction and to other counts of which he was convicted but does not appeal. He also asserts instructional and sentencing error and ...
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*346 Opinion The State Franchise Tax Board (Board) appeals from the trial court’s summary judgment directing that it refund additional franchise taxes and interest paid by Dental Insurance Consultants, Inc., (DIC) for the tax years 1980, 1981, and 1982. The court determined that DIC and its wholly owned subsidiary D.I.C. Farms, Inc., (Farms) were engaged in a unitary enterprise a...
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Opinion The superior court suppressed evidence found in respondent Edward Dewayne Snead’s hotel room and dismissed the criminal charges against Snead for possession of illegal drugs with intent to sell. The People appeal, arguing the warrantless entry of respondent’s hotel room by police in response to a “911” emergency assistance call reporting an accidental stabbing was justified by exi...
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Opinion Appellant Demeitrus Frank Bailey was charged by information and convicted by jury of possession of “rock cocaine” for sale (Health & Saf. Code,1 § 11351.5). Appellant admitted two Penal Code section 667.5, subdivision (b) prior prison term allegations and was sentenced to six years in prison. Relying on our recent decision in People v. Adams (1990) 220 Cal.App.3d 680 [269 Cal.Rptr. 479], ...
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Opinion An information filed May 3, 1990, charged Charles S. Heston with “Violation of Sections 211/212.5(b) of the Penal Code, a felony. The said defendant, on or about March 19, 1990, did willfully and unlawfully aid and abet in the robbery of Steve Murphy.” The information further alleged that in the commission of this offense, Heston (1) “furnished Armando Avina with a firearm for the...
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The taxability of possessory interests in real property, the fee of which is owned by tax-exempt entities, is well established. The evolution of the definition of a taxable “possessory interest” is set forth in a short but effective historical review in Freeman v. County of Fresno (1981) 126 Cal.App.3d 459, 462-464 [178 Cal.Rptr. 764], and described as a “protax trend.” (Id. at p. 463.) Ehraian an...
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Opinion Introduction Michael Shorr appeals from an order sustaining a demurrer to his first amended cross-complaint for malicious prosecution. The order was sustained with 10 days leave to amend. Appellant prematurely filed notice of appeal. Subsequent to the filing of the notice of appeal, a judgment of dismissal was *252 entered on the action for plaintiff’s failure to...
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C. A. 3d Cir. Certiorari denied. Opinion of with whom Justice Blackmun joins, respecting the denial of the petition for writ of certiorari. On November 4, 1991, the Court applied its recently amended Rule 39.8 to eight petitions filed by James L. Martin. Instead of simply denying those certiorari petitions on the ground that they lacked merit, the Court denied Martin leave to proceed inf...
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ORDER Plaintiff seeks judicial review of the final decision of the Secretary of Health and Human Services (“Secretary”), denying plaintiffs claim for disability insurance benefits. Presently before the court are plaintiff’s motion to remand and defendant’s motion for summary judgment. Having considered the parties’ moving papers and the arguments contained therein and for good cause appearing, it ...
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Opinion The question before us is whether a referee lacks jurisdiction to enter a final order in a juvenile matter if the superior court fails to strictly follow the provisions of rule 244 of the California Rules of Court in appointing the referee as a temporary judge. We determine that error in failing to follow rule 244 is not jurisdictional when the parties have stipulated to trial by temporar...
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MEMORANDUM ORDER This case presents the question whether a warrantless probable cause search of an impounded vehicle is constitutionally justified if not conducted approximately contemporaneously with the vehicle’s seizure, but is conducted a week later. The court holds that the search is valid. I. BACKGROUND The defendant, Gary Lee Spires, is charged with possession of methamphetamine, use of fir...
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Opinion Donna Seaber, the surviving wife of Harry Seaber, and their three children appeal a summary judgment entered in favor of Hotel Del Coronado (Hotel) on their wrongful death action arising from a pedestrian/vehicular accident which resulted in the death of pedestrian Harry Seaber. He was killed when he was struck in a marked crosswalk on Orange Avenue, adjacent to the Hotel’s proper...
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54 Cal.3d 868 (1991) 820 P.2d 181 2 Cal. Rptr.2d 79 DONALD PAUL CHRISTENSEN et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; PASADENA CREMATORIUM OF ALTADENA et al., Real Parties in Interest. Docket No. S016890. Supreme Court of California. December 2, 1991. *874 COUNSEL Robie & Matthai, Edith R. Matthai, Pamela E. Dunn, Lieff, Cabraser & Heimann, Elizabeth Jo...
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MEMORANDUM OF DECISION These consolidated actions challenge and seek to enjoin the implementation of the testing components of the Veterans Administration Drug Free Workplace Plan adopted by the Veterans Administration, 53 Fed.Reg. 11970 (the “Plan”) in response to the provisions of Executive Order 12564.51 Fed.Reg. 32889. This court has previously granted preliminary injunctions res...
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Defendant Randy Steven Kirkpatrick appeals from the judgment of conviction entered after a jury found him guilty as charged of possessing more than 57 grams of cocaine for sale. (Health & Saf. Code, § 11351; Pen. Code, § 1203.073, subd. (b).) Background * VII Defendant claims that a resentencing imposed by the trial court was in excess of its jurisdiction. The problem aro...
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*558 Opinion Appellant Marilyn Marks argues that she is entitled to bring this wrongful death action for the alleged murder of her granddaughter by the child’s mother. We disagree in this case of first impression. Appellant is only a potential heir of the decedent under the California intestate succession scheme. The alleged murderer is the decedent’s sole heir and, as such, is the only per...
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Opinion This is an appeal from a judgment denying appellants’ petition for writ of mandate to compel respondent Director of Development for the City of Fresno (Director) to issue permits to erect freestanding signs on the premises of the Rodway Auto Center. BR Enterprises (BR), a California general partnership, and Shasta Enterprises (Shasta), a California general partnership, are re...
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The writ of certiorari is dismissed as improvidently granted. ...
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delivered the opinion of the Court. We have before us two questions: whether a union member who sues his local union for money damages under Title I of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 73 Stat. 519, as amended, 29 U. S. C. §401 et seq., is entitled to a jury trial, and whether under § 301(a) of the Labor-Management Relations Act, 1947 (LMRA), 61...
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delivered the opinion of the Court. The question presented is whether a maritime worker whose occupation is one of those enumerated in the Long-shore and Harbor Workers’ Compensation Act (LHWCA), 44 Stat. 1424, as amended, 33 U. S. C. §901 et seq., may yet be a “seaman” within the meaning of the Jones Act, 46 U. S. C. App. §688, and thus be entitled to bring suit under that stat...
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Opinion This appeal concerns the proof of a person’s blood-alcohol concentration needed to sustain an “administrative per se” suspension of that person’s license to drive. Before reciting the particulars of the instant case, we synopsize, in relevant part, the statutory scheme involved. A law went into effect on July 1, 1990, authorizing the Department of Motor Vehicles (DMV) to revo...
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Opinion In this matter certified from the appellate department of the San Diego County Superior Court, the County of San Diego (the County) appeals a municipal court order dismissing its complaint under Health and Safety Code 1 section 1428, subdivision (c), against the State of California Department of Health Services (Department) to perfect a judicial appeal of a decision at a citation revi...
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Leroy H. Johnson, Jr., appeals pro se the district court’s dismissal without prejudice of his employment discrimination action against Payless Drug Stores Northwest, Inc. (“Payless”), which he brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. I Johnson contends that the district court erred by dismiss...
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Abbott Building Corporation (ABC) and the Abbott Trust (both referred to as appellants) brought this action to set aside the foreclosure sale of appellants’ property to the Federal Savings and Loan Insurance Corporation (FSLIC) 1 . The district court held that it had no jurisdiction over the action against FSLIC and that if it did appellants failed to state a claim. Appel *193...
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In this case, we consider the scope of section 523(a)(2) of the Bankruptcy Code, which bars discharge of a debt for money or property obtained by fraud. At issue is whether that section excepts from discharge punitive damages as well as actual damages. Wilson Palmer appeals from the decision of the Bankruptcy Appellate Panel (“BAP”) affirming the bankruptcy court’s finding that the punitive dam...
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950 F.2d 1395 Manuel LOSADA, Plaintiff-Appellee,v.GOLDEN GATE DISPOSAL COMPANY, Golden Gate Disposal CompanyEmployee's Pension Plan, Manuel C. Conte, individually andin his official capacity as Administrator and RetirementCommittee Member of the Golden Gate Disposal CompanyEmployees' Pension Plan, and Retirement Committee of theGolden Gate Disposal Employees' Pension Plan, Defendants-Appellant...
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Land West, Inc. (“Land West”) appeals from the decision of the Bankruptcy Appellate Panel (“BAP”) affirming the bankruptcy court’s holding that it was not entitled to a commission as broker for the buyer in the trustee’s sale of encumbered property. We affirm the BAP’s decision. BACKGROUND In March, 1988 the debtors, David and Caroline Haley, filed a Chapter 11 petition. California Federal Bank (“...
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950 F.2d 590 120 Lab.Cas. P 35,576 Anthony M. FRANK, Postmaster General, et al., Petitioners-Appellants,v.Donald D. McQUIGG, et al., Respondents-Appellees. No. 90-35108. United States Court of Appeals,Ninth Circuit. Argued and Submitted Sept. 10, 1991.Decided Dec. 6, 1991. James A. Friedman, Office of Labor Law, U.S. Postal Service, Washington, D.C., Crandon Randall...
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Todd Shipyards Corporation (Todd) and Aetna Casualty and Surety Company (Aet-na) appeal from the decision of the Benefits Review Board of the Department of Labor (Benefits Review Board). The Benefits Review Board awarded attorneys’ fees to Todd’s employee, Melvin Watts (Watts), pursuant to Section 28(b) of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 928(b). We must deci...
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951 F.2d 1011 Titus Lee BROWN, Jr., Petitioner-Appellant.v.Robert BORG, et al., Respondents-Appellees. No. 91-55148. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 7, 1991.Decided Dec. 6, 1991. Michael M. Crain, Klein & Crain, Los Angeles, Cal., for petitioner-appellant. Donald F. Roeschke, Deputy Atty. Gen., Los Angeles, Cal., for resp...
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Robert Britton, the debtor, appeals from the decision of the Bankruptcy Appellate Panel (“BAP”) affirming in part the bankruptcy court’s holding that a judgment against him for fraud obtained by Mary Price was nondischargeable. Britton argues that there is insufficient evidence to support the bankruptcy court’s finding that his conduct constituted fraud, for the purposes of 11 U.S.C. § 523(a)(2...
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951 F.2d 1007 UNITED STATES of America, Plaintiff-Appellee,v.Steve ANGELICA, Defendant-Appellant. No. 90-50696. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 7, 1991.Decided Dec. 6, 1991. Steve Angelica, pro se. Mark D. Larson, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court f...
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950 F.2d 1388 UNITED STATES of America, Plaintiff-Appellee,v.Thomas HOSKIE, Defendant-Appellant. No. 89-10348. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 11, 1990.Decided Dec. 6, 1991. David Lee Titterington, Deputy Federal Public Defender, Phoenix, Ariz., for defendant-appellant. Janet L. Patterson, Asst. U.S. Atty., Phoenix, Ariz., fo...
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Opinion Ersa Grae Corporation sued Fluor Corporation for damages for breach of a contract to transfer real property to Ersa Grae. Fluor defended by asserting, among other things, that no contract was formed because all offers had been revoked before Ersa Grae accepted. In a bifurcated trial, a jury found the parties had an enforceable contract and, thereafter, a second jury awarded $13 mi...
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Opinion Lusardi Construction Company appeals from a judgment denying its petition for a writ of mandate to set aside the decision of the Occupational Safety and Health Appeals Board (the Board) affirming a citation for a serious violation of a safety order. The Board cross-appeals from the trial court’s memorandum and order, seeking to overturn the trial court’s interpretation of a safety order, ...
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Opinion In this case we construe for the first time the Naylor Act (Ed. Code, §§ 39390-39404; 1 hereafter the Act), which governs the disposal of certain kinds of surplus school property. The City of Moorpark (hereafter City) petitioned the superior court for a writ of mandate to compel the Moorpark Unified School District (hereafter District) to transfer school property, pursuant to the Act....
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Opinion Defendant Carrea Christopher, Jr., appeals from a judgment of conviction after a jury found him guilty of possessing cocaine. (Health & *669 Saf. Code, § 11350, subd. (a).) His sole appellate argument is the court erred in finding the prosecutor’s peremptory challenge of the only African-American prospective juror did not constitute a prima facie case of group bias. W...
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Opinion Defendant appeals from a conviction of gross vehicular manslaughter while intoxicated. (Pen. Code, § 191.5, subd. (a).) 1 The Court of Appeal affirmed the conviction. Defendant contends the trial court erroneously instructed the jury that it could find gross negligence from “the overall circumstances of [his] intoxication.” (CALJIC No. 8.94 (5th ed. 1988 bound vol.).) F...
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Opinion We granted review in this case to resolve a conflict in the Court of Appeal over the proper means of remedying the erroneous imposition of a restitution fine. As explained below, we order the restitution fine of this case reduced to the statutory minimum of $100. I. Facts Defendant was charged by information with two felony counts, including, in count 2, the attempted use of a destr...
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951 F.2d 186 CONSOLIDATED AMERICAN INSURANCE COMPANY,Plaintiff-Counter-defendant-Appellant,v.MIKE SOPER MARINE SERVICES, et al., Defendants,andCarl Mayerhofer, individually and as Assignee of MichaelSoper, Defendant-Counter-plaintiff-Appellee. No. 89-55929. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 6, 1990.Decided Aug. 23, 1991.Amended Dec. 6, 1991. ...
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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 August 17, 1984, the District Attorney of Sacramento County filed an information against defendant Troy Adam Ashmus in the superior court of that county. Count I charged that on May 19,1984, defendant murdered Marcella D. in violation of Pen...
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Opinion Introduction Appellant Wells Fargo Bank, N.A. (Wells Fargo), the testamentary trustee of several trusts created under the will of Abraham L. Gump from December 11, 1969, to July 17, 1979, appeals from the judgment settling the ninth, tenth and supplemental accounts and reports of the trustee.1 The judgment disallowed tiie bulk of Wells Fargo’s requested compensation, including reimburse...
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Opinion Defendant Jimmy Lee Jackson appeals from the judgment entered following a jury trial that resulted in his conviction of attempted residential burglary. (Pen. Code, §§ 664/459.) He contends: “I. The failure to suppress the photographic lineup is ineffective assistance of counsel, as [defendant] was denied due process by the suggestiveness of the photographic lineup. II. The trial court c...
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Opinion The City of Buena Park (collectively, the City) and Kevin O’Rourke appeal from the grant of a petition for writ of mandate compelling the City to reinstate George F. Mahler to his position as fire captain. Additionally, Mahler was to receive full salary and all applicable benefits, and be allowed to defer his retirement until he exhausted all his accrued benefits as well as those benefi...
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951 F.2d 178 35 Soc.Sec.Rep.Ser. 701 Brenda SMITH, for herself and as next friend of her minordaughter; Reyanna Smith, and on behalf of allothers similarly situated, Plaintiffs-Appellants,v.Kevin CONCANNON, Director, Department of Human Resources,Stephen Minnich, Administrator, Adult and FamilyServices Division, Defendants-Appellees. No. 90-35138. United States Court of Appeals,Ni...
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951 F.2d 1017 UNITED STATES of America, Plaintiff-Appellee,v.Gregory S. BREBNER, Defendant-Appellant. No. 89-30100. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 1, 1990.Decided Dec. 9, 1991. Robert B. Henderson, Henderson & Nichols, Spokane, Wash., for defendant-appellant. Kim Lindquist and Ronald D. Howen, Asst. U.S. Attys., Boise, I...
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Limsico appeals from a decision by the Board of Immigration Appeals (Board) denying him relief from deportation. He argues that the Board’s denial of asylum eligibility is not supported by substantial evidence. He also asserts that the Board abused its discretion in denying his motion to reopen. Indeed, he contends that the Board erred in deciding his motion to reopen before the Immigration and...
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951 F.2d 200 WESTERN SHOSHONE NATIONAL COUNCIL, Roland Brady, IanZabarte, Glenn Holley, Felix Ike, Plaintiffs-Appellants,v.William MOLINI, Director, Nevada Department of Wildlife,Terry Crawforth, Director of Law Enforcement,Nevada Department of Wildlife,Defendants-Appellees. No. 90-16175. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 26, 1991.Decided Dec. ...
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951 F.2d 215 Nicole VOLLENDORFF, a minor child and her parents Michaeland Heidi Vollendorff, a married couple, andGordon Godfrey, guardian ad litem forNicole Vollendorff, Plaintiffs-Appellees,v.UNITED STATES of America, Defendant-Appellant. No. 91-35435. United States Court of Appeals,Ninth Circuit. Argued and Submitted Sept. 10, 1991.Decided Dec. 9, 1991. William G. Col...
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951 F.2d 1546 UNITED STATES of America, Plaintiff-Appellee,v.George Robert BOSCH, Jr., Defendant-Appellant. No. 88-5150. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 4, 1990.Decided Dec. 9, 1991. Alison Minet Adams, Santa Barbara, Cal., for defendant-appellant. John S. Gordon, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. ...
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The Wyoming Community Development Authority (the "Authority”) appeals from the district court’s denial of its motion to dismiss for lack of jurisdiction. The Authority contends that it is an arm of the sovereign state of Wyoming and is therefore absolutely immune from suit in federal court under the Eleventh Amendment to the Constitution. Although we acknowledge that the question is close, we disa...
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951 F.2d 1028 UNITED STATES of America, Plaintiff-Appellee,v.Russell L. PRICE, Defendant-Appellant. No. 90-10416. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 26, 1991.Decided Dec. 9, 1991. Henry C. Martillaro, Martillaro & Martillaro, Carson City, Nev., for defendant-appellant. Robert A. Bork, Asst. U.S. Atty., Reno, Nev., for plaint...
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951 F.2d 204 22 Bankr.Ct.Dec. 640, Bankr. L. Rep. P 74,367 In re Daniel R. BUCKNUM, dba Bucknum, Levine & Smith, Debtor.Joe W. MOODY, Bernice H. Moody, Appellants,v.Daniel R. BUCKNUM, dba Bucknum, Levine & Smith, Appellee. No. 90-55178. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 13, 1990.Decided Dec. 9, 1991. Meredith Bradford, W...
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502 U.S. 105 (1991) SIMON & SCHUSTER, INC. v. MEMBERS OF THE NEW YORK STATE CRIME VICTIMS BOARD et al. No. 90-1059. United States Supreme Court. Argued October 15, 1991. Decided December 10, 1991. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT *106 *107 O'Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Stevens, Scalia, and Souter,...
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Opinion In this case, we resolve some issues presented by the adoption in June 1990 of an initiative measure designated on the ballot as Proposition 115 and entitled the “Crime Victims Justice Reform Act.” Peti*1068tioner herein raises various challenges under the federal and state Constitutions to the provisions of the measure that authorize the admission of hearsay evidence at preliminary heari...
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54 Cal.3d 1041 (1991) 819 P.2d 872 1 Cal. Rptr.2d 913 JAMES MITCHELL et al., Plaintiffs and Appellants, v. JOSE L. GONZALES et al., Defendants and Respondents. Docket No. S018678. Supreme Court of California. December 9, 1991. *1044 COUNSEL Edward J. Horowitz, Greenberg & Panish and David Greenberg for Plaintiffs and Appellants. Bodkin, McCarthy, Sargent & Smith and Richard P. Kinnan for ...
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Opinion Patrick Duane Murphy (driver) claims it is unconstitutionally unfair that he faces a four-month suspension of his driver’s license by the Department of Motor Vehicles (DMV) for his first drunk driving offense when he would face only a one-month suspension followed by a five-month restriction if he had a commercial driver’s license. The superior court agreed, finding this legislative dis...
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Opinion Appellant, Nora F. Farlice, appeals from a judgment entered on a jury verdict claiming the award of compensatory damages of $10,000 for the false imprisonment of respondent Lynell Washington was unsupported by the evidence. Appellant also contends the $50,000 award of punitive damages is excessive as a matter of law. We conclude the compensatory damage award is supported by substa...
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Opinion This is an automatic appeal from a judgment of death. (Pen. Code, § 1239, subd. (b); unless otherwise indicated all further statutory references are to the Penal Code.) A jury convicted defendant Miguel Angel Bacigalupo of two counts of first degree murder (§ 187) and two counts of robbery (§ 211). The jury found to be true allegations of a multiple-murder special circumstance (§ 190.2, s...
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Opinion By jury trial appellant George Vallejo was convicted of one count of grand theft auto and one count of hit-and-run driving. (Pen. Code, former § 487, subd. 3; Veh. Code, § 20002, subd. (a).) By nonjury trial he was found to have served three prior prison terms. (Pen. Code, § 667.5, subd. (b).) He was sentenced to state prison for an upper term of three years for grand theft auto and a c...
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950 F.2d 1401 57 Empl. Prac. Dec. P 41,114, 60 USLW 2436 ASSOCIATED GENERAL CONTRACTORS OF CALIFORNIA, INC., anonprofit California corporation, Plaintiff-Appellant,v.COALITION FOR ECONOMIC EQUITY, et al.,Defendants-Intervenors-Appellees.City and County of San Francisco, Defendants-Appellees. No. 90-16582. United States Court of Appeals,Ninth Circuit. Argued and Submitted March ...
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*734 Opinion Appellants, Anton Ostermeier and West Coast Car Sales, appeal from a judgment entered on a jury verdict awarding respondents rescission on a car sales contract of $24,354 and awarding compensatory damages of $10,624 on the fraud cause of action as well as $187,000 in punitive damages. Appellants attack the amount of punitive damages as excessive as a matter of law. T...
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502 U.S. 151 (1991) UNION BANK v. WOLAS, chapter 7 trustee for the ESTATE OF ZZZZ BEST CO., INC. No. 90-1491. United States Supreme Court. Argued November 5, 1991. Decided December 11, 1991. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *152 Stevens, J., delivered the opinion for a unanimous Court. Scalia, J., filed a concurring opinion, post, p. 163. John A. Graham argue...
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Defendant John Anthony Cipollone appeals his sentence after pleading guilty to two counts of knowing distribution and receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). Cipollone contends the district court erred by (1) finding that the child pornography at issue depicted prepu-beseent minors (under the age of 12), (2) refusing to group two counts under United States Sentencing ...
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951 F.2d 1046 60 USLW 2450, 26 Collier Bankr.Cas.2d 214,22 Bankr.Ct.Dec. 644,Bankr. L. Rep. P 74,368,14 Employee Benefits Cas. 2303 In re Eldon S. REED, Debtor.Eldon S. REED, Appellant,v.Victoria C. DRUMMOND, Appellee. No. 90-15874. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 19, 1991.Decided Dec. 11, 1991. Timothy Berg, Cathy L. Reece, G...
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950 F.2d 621 FOUNDATION CONSTRUCTORS, INC., the Wausau InsuranceCompanies, Petitioners,v.DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS, WillisVanover, United States Department of Labor, Respondents. No. 90-70380. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 8, 1991.Decided Dec. 11, 1991. Bill Parrish, San Francisco, Cal., for petitioners. ...
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This appeal marks the latest battle in Sidney Brooks’ long-running campaign against a $6.50 monthly service availability charge imposed on him by Sulphur Springs Valley Electric Cooperative (“SSVEC”) with the approval of the Arizona Corporation Commission (“the Commission”). Brooks appeals pro se from a district court order granting summary judgment in favor of SSVEC and the Commission. I ...
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Harold Ivan Booker (“Booker”) appeals his conviction for possession of unauthorized access devices in violation of 18 U.S.C. § 1029(a)(3). Booker contends that the district court erred (1) in denying his motion to suppress evidence allegedly obtained in violation of the “knock-and-announce” statute, and (2) in denying his motion to exclude a transcript of a tape recorded telephone conversation be...
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950 F.2d 1456 139 L.R.R.M. (BNA) 2070, 120 Lab.Cas. P 11,034 Elizabeth H. DOLE, Secretary of Labor, United StatesDepartment of Labor, Petitioner-Appellant,v.SERVICE EMPLOYEES UNION, AFL-CIO, LOCAL 280, Respondent-Appellee. No. 90-55309. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 9, 1991.Decided Dec. 11, 1991. Stuart M. Gerson, Asst. Atty....
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Arnold Dorsey, better known as Engel-bert Humperdinck, sued the National Enquirer, Inc. alleging that an article in its tabloid defamed him. The district court granted summary judgment in favor of the Enquirer and Dorsey appeals. We affirm. *252I In 1980, Kathy Jetter obtained a determination in New York Family Court that Dorsey was the father of her daughter. The court ordered Dorsey to pay child...
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950 F.2d 1429 22 Fed.R.Serv.3d 77 UNION PACIFIC RAILROAD COMPANY and its Lessors,Plaintiff-Counter-Defendant-Appellee,v.NEVADA POWER CO., a Nevada corporation,Defendant-Counter-Claimant-Appellant. No. 89-16471. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 11, 1991.Decided Dec. 11, 1991. Michael J. Ogborn, Heron, Burchete, Ruckert & Rot...
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951 F.2d 1033 Bernard L. SILVER, Cartwright-Mitchell, Inc., a Delawarecorporation, Plaintiffs-Appellants,v.UNITED STATES POSTAL SERVICE, Defendant-Appellee. No. 89-16447. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 13, 1991.Decided Dec. 11, 1991. Dale B. Hinson, Washington, D.C. and W. Leslie Sully, Jr., Sully, Lenhardt & Raizin, Las Vega...
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950 F.2d 1437 60 USLW 2443 Annise FULLER, Roshaun Fuller, Plaintiffs-Appellants,v.M.G. JEWELRY, Pravis Kashanian, Officer Liggett, OfficerParga, Officer Barham, City of Los Angeles, Countyof Los Angeles, Defendants-Appellees. No. 89-55710. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 1, 1990.Decided Dec. 11, 1991. Edward M. Fox, Klass, Helm...
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Opinion This is an appeal from an order of the juvenile court adjudging Rocco M. a dependent child as described in Welfare and Institutions Code section 300,1 subdivision (b). Rocco’s mother, Catherine R, challenges the order on the grounds that (1) the court improperly took *817judicial notice of its file in previous proceedings concerning Rocco; and (2) the evidence was insufficient to support t...
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Opinion I. Introduction Defendant James Hawkins II appeals his conviction of voluntary manslaughter after he shot a member of the Bounty Hunter gang on September 11,1983. Defendant received a 28-year sentence and raises numerous contentions. In the published portion of the opinion, we will discuss why the enhancement for a serious prior felony conviction pursuant to Penal Code sectio...
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Opinion The present appeal is a successor to a previous decision by this court (Div. Two) in Chicago Title Ins. Co. v. Superior Court (1985) 174 Cal.App.3d 1142 [220 Cal.Rptr. 507]. In this appeal, we will affirm decisions of the trial court which held (1) California Canadian Bank (the Bank) failed to timely return certain dishonored checks before the relevant “midni...
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Opinion Defendant/appellant State Board of Equalization appeals a summary judgment in favor of plaintiff/respondent GTE Sprint Communications Corporation in respondent’s action for refund of surcharges paid pursuant to the California Emergency Telephone Users Surcharge Law (the Act). (Rev. & Tax. Code, § 41001 et seq.) 1 Appellant contends the court erred in determining respond...
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Opinion We granted review in this case to resolve a conflict among the Courts of Appeal regarding the impact of legislation abolishing diminished capacity on the crime of voluntary manslaughter. Specifically, the issue is whether the law of this state still permits a reduction of what would otherwise be murder to nonstatutory voluntary manslaughter due to voluntary intoxication and/or men...
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I dissent. The majority acknowledge that “[a] change in circumstances is required before a court has jurisdiction to extend or otherwise modify probation.” (Maj. opn., ante, at p. 1095.) I agree. They go on to assert, quoting the Court of Appeal, that such a change in circumstances “could be found in a fact ‘not available at the time of the original order,’ namely, ‘that setting the pay schedule c...
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*781 Opinion Statement of the Case This case involves the killing of a small child by Willy, a pit bull owned by defendant Michael Patrick Berry. Defendant appeals from a judgment entered after a jury found him guilty of involuntary manslaughter, keeping a mischievous animal, keeping a fighting dog, and cultivating marijuana. (Pen. Code, §§ 192, subd. (b), 399, and 597.5...
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950 F.2d 1471 21 Fed. R. Serv. 3d 669 Jeffery ANTOINE, Plaintiff-Appellant-Cross-Appellee,v.BYERS & ANDERSON, INC., Shanna Ruggenberg,Defendants-Appellees-Cross-Appellants. Nos. 90-35293, 90-35362 and 90-35363. United States Court of Appeals,Ninth Circuit. Argued and Submitted Sept. 11, 1991.Decided Dec. 13, 1991. M. Margaret McKeown and Daniel Laster, Perkins Co...
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Michael J. Early (Early) brought suit against Texaco Refining and Marketing Inc. (Texaco) for revocation of his franchise as a Texaco dealer in violation of the Petroleum Marketing Practices Act, 15 U.S.C. § 2801, et seq. Judgment was for Early, and Texaco appealed. We reverse and remand for entry of judgment in favor of Texaco. PROCEEDINGS Early was an independent dealer at a Texaco service ...
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In March 1990, the Internal Revenue Service served summonses on David and Sharon Saunders to appear and produce records for tax years 1981 through 1988. 26 U.S.C. § 7602. Although the Saunders appeared as directed, they refused to turn over the documents and records requested in the summonses. The IRS then filed an action in federal district court to enforce the summonses. 26 U.S.C. § 7604(b). ...
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On direct appeal from a conviction and sentence for illegal re-entry after deportation, this court reversed and remanded in October 1990 because of a violation of the Speedy Trial Act, 18 U.S.C. § 3161(b), 917 F.2d 566. The direction of the remand was to “determine whether to dismiss the charge and the complaint with or without prejudice.” The Speedy Trial Act violation involved a delay of more t...
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950 F.2d 1464 21 Fed. R. Serv. 3d 959 Tracy Ray VAUGHAN, et al., Plaintiffs,andMark Koch, Donald Nelson, and Mark Osborne, Plaintiffs-Appellants,v.James RICKETTS, et al., Defendants-Appellees. Nos. 90-16282, 90-16328 and 90-16332. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 23, 1991.Decided Dec. 13, 1991. James Weinstein and Robert P. Jarv...
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951 F.2d 961 Cynthia Sue REBER; Courtney Brianne Reber, By and ThroughCynthia Sue Reber, Guardian Ad Litem, Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee. No. 89-55390. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 5, 1990.Decided Aug. 13, 1991.As Amended Dec. 13, 1991. Michael W. McCann, Cappello & Foley, Santa Barba...
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Opinion Plaintiffs and appellants Diana L. Guido and Donald Schwartz, a married couple, appeal from a summary judgment, enforcing a release from all liability, in favor of defendant and respondent Charles Koopman, doing business as The Academy of Equestrian Arts (the Academy). Appellants contend the release is unenforceable because it was executed in reliance on respondent’s misrepresenta...
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Opinion Introduction In this case a prospective purchaser of real property submitted a sealed bid which stated he would pay “$1,000 more than any other sealed bid.” Although such bids have been severely criticized, as we explain in greater detail below, the record here is not sufficient to determine whether the bid submitted in this case was fatally defective. Factual and Proced...
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Opinion In this case the trial court dismissed the plaintiff’s discrimination lawsuit because the plaintiff had previously executed a workers’ compensation release. We reverse because the record does not establish as a matter of law that the release covered plaintiff’s discrimination claims. We also find plaintiff has the right to a jury trial on his claims. Factual and Procedural Su...
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Opinion An information filed in respondent superior court charges that “On or about October 21, 1990” petitioners violated “Penal Code Section 278.5(b).” 1 Petitioners (defendants) seek a writ of prohibition restraining further prosecution (Pen. Code, § 999a) after the superior court denied their motion to dismiss on the ground that the preliminary hearing evidence does not support the charge...
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This appeal turns on whether a probation-violating defendant may receive a sentence other than that available at the time the defendant was first sentenced to probation. The Sentencing Guidelines allow it, but the underlying probation revocation statute prohibits it. To the extent that the Guidelines conflict with the statute, we find them invalid. Accordingly, we vacate Dixon’s sentence for viol...
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951 F.2d 1073 Jonathan M. WIENER, Plaintiff-Appellant,v.FEDERAL BUREAU OF INVESTIGATION; Federal Bureau ofInvestigation, Los Angeles Field Office; Federal Bureau ofInvestigation, New York Field Office; Federal Bureau ofInvestigation, Detroit Field Office, Defendants-Appellees. No. 88-5867. United States Court of Appeals,Ninth Circuit. Dec. 16, 1991. Mark D. Rosenbaum,...
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Palomar Truck Corporation, which operated a motor vehicle dealership, filed a voluntary Chapter 11 petition. A trustee was appointed. The Trustee met with a representative of North County Jeep and Renault, Inc. (“North County”), and agreed to sell the dealership to North County for $150,000. The trustee and North County agreed the dealership must remain open to preserve the new car franchises pend...
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Richard Van Winrow was convicted for possession of cocaine with the intent to distribute, a violation of 21 U.S.C. § 841(a) (1988), and for being an ex-felon in possession of a firearm, a violation of 18 U.S.C. § 922(g) (1988). Winrow was sentenced to a mandatory term of life in prison without possibility of parole under a provision of 21 U.S.C. § 841(b)(1)(A) enacted a few weeks before his arres...
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OVERVIEW In the third bankruptcy proceeding brought by or on behalf of Pecan Groves, the Chapter 7 Trustee sought to avoid a trustee’s sale which took place in violation of the automatic stay under the first bankruptcy proceeding. Clarence Tilley and B & C Equities were allowed to intervene with the trustee. After the Trustee, Tilley, and B & C had presented their case, the bankruptcy court grante...
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Bernabé de la Cruz appeals from the decision of the Board of Immigration Appeals (BIA) affirming the Immigration Judge (IJ) who found de la Cruz to be a deportable alien pursuant to 8 U.S.C. § 1251(a)(4) (1988). 1 Petitioner argues that *227 the BIA should not have affirmed the IJ because: (1) the IJ abused his discretion in failing to grant a continuance of the deportat...
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At Appellant Douglas Hill’s trial for conspiracy and attempt to possess with intent to distribute cocaine, testimony was admitted that the appellant had used cocaine with one of the members of the conspiracy five years prior. We conclude the trial court committed reversible error in admitting the evidence of prior cocaine use and that the conviction must be reversed and the case remanded for a ...
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The government appeals the district court’s order denying its motion for judgment notwithstanding the verdict. It argues the district court erred in holding the government must assess a deficiency in a taxpayer’s tax within a reasonable period of time, and therefore in submitting to the jury an interrogatory asking whether the government had done so in the St. John’s case. Taxpayers cross-appeal,...
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952 F.2d 1537 UNITED STATES of America, Plaintiff-Appellee,v.Larry Wayne LaFLEUR, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Nick Michael HOLM, Defendant-Appellant. Nos. 89-50599, 89-50644. United States Court of Appeals,Ninth Circuit. Argued and Submitted Jan. 9, 1991.Decided Dec. 16, 1991. Defendants were convicted of first-degree murder and sen...
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Rudy Pavlik, Andy Pavlik, and Thomas Schmidt (“the Pavliks”) appeal the district court’s judgment affirming civil penalties *222 imposed by the National Oceanic and Atmospheric Administration (“NOAA”) for violating the Northern Pacific Halibut Act of 1982 (“the Halibut Act”). Specifically, NOAA charged the Pavliks with possessing halibut out of season, in violation of 16 U.S.C. § 7...
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950 F.2d 1378 34 Fed. R. Serv. 1093 UNITED STATES of America, Plaintiff-Appellee,v.Fabio JARAMILLO-SUAREZ, Defendant-Appellant. No. 89-50313. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 5, 1991.Decided Aug. 23, 1991.As Amended on Denial of Rehearingand Rehearing En Banc Dec. 16, 1991. Donald M. Re, Los Angeles, Cal., for defendant-appellan...
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502 U.S. 1017 112 S.Ct. 667 116 L.Ed.2d 758 Roy SMITH, petitioner,v.UNITED STATES. No. 90-7347 Supreme Court of the United States December 16, 1991 On petition for writ of certiorari to the United States Court of Appeals for the Fourth Circuit. The petition for a writ of certiorari is denied. Opinion of Justice STEVENS respecting the denial of the pet...
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delivered the opinion of the Court. This case presents a narrow question of statutory construction. Section 242(a) of the Immigration and Nationality Act (INA) authorizes the Attorney General to arrest excludable aliens and, pending a determination of their deportability, either to hold them in custody or to release them on bond “containing such conditions as the Attorney General may presc...
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delivered the opinion of the Court. The issue in this case is whether 38 U. S. C. § 2024(d), a provision of what is popularly known as the Veterans’ Reemployment Rights Act, implicitly limits the length of military service after which a member of the Armed Forces retains a right to civilian reemployment. We hold that it does not. I In June 1987, petitioner William “Sky” King, ...
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with whom Justice Kennedy joins, concurring in part and concurring in the judgment. I join the Court’s judgment and its opinion except Part III. Exemption 6 of the Freedom of Information Act (FOIA) provides that the Act’s disclosure requirements do not apply to “personnel and medical files and similar files the disclosure *180of which would constitute a clearly unwarranted invasion of personal pri...
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delivered the opinion of the Court. In this case we must decide whether the Federal Employers’ Liability Act (FELA), 53 Stat. 1404, 45 U. S. C. §§51-60, creates a cause of action against a state-owned railroad, enforceable in state court. We hold that it does, reaffirming in part our decision in Parden v. Terminal Railway of Alabama Docks Dept., 377 U. S. 184 (1964). HH Petitioner Kenneth Hilton w...
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OPINION Before JONES, VOLINN and ASHLAND, Bankruptcy Judges. The bankruptcy court granted summary judgment for the bankruptcy trustee in an adversary suit asserting strong-arm powers, holding that a secured party had failed to perfect its security interest in a note and deed of trust by failing to take possession of the instruments. The secured party appeals. We reverse and remand. ...
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Opinion We granted review in this case to resolve a conflict in the Courts of Appeal concerning whether courts should distinguish between types of negligence when analyzing coverage in the first party homeowners property insurance context. (See Garvey v. State Farm Fire & Casualty Co. (1989) 48 Cal.3d 395, 408-409, fn. 7 [257 Cal.Rptr. 292, 770 P.2d 704] (Garve...
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Opinion Plaintiff the Stevens Group Fund IV, a general partnership, brought this action for breach of contract for the sale of real property against defendants Sobrato Development Company No. 810 et al. 1 The jury returned a verdict in favor of plaintiff, but awarded no damages, implicitly finding the fair market value of the property did not exceed the contract price. The tria...
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Opinion On January 11, 1989, defendant Steve Burkett committed numerous sexually assaultive acts upon Darla F. after he had gained entrance into her home under false pretenses. An eight-count complaint was filed as a result of this incident. Count three alleged defendant raped (Pen. Code, § 261, subd. 2) 1 Darla F. This count further alleged defendant was a habitual criminal and subject to pu...
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951 F.2d 1089 UNITED STATES of America, Plaintiff-Appellant,v.Hector Benjamin BARRERA-MORENO and Eugene Benjamin Herndon,Defendants-Appellees.UNITED STATES of America, Plaintiff-Appellant,v.William Joseph KUNKEL, Defendant-Appellee.UNITED STATES of America, Plaintiff-Appellant,v.Daniel RUIZ, Jr., Defendant-Appellee. Nos. 90-10330, 90-10357, 90-10393. United States Court of Appeals,Nint...
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951 F.2d 246 34 ERC 1569, 60 USLW 2422, Bankr. L. Rep.P 74,400,22 Envtl. L. Rep. 20,239 In re DANT & RUSSELL, INC., et al.,DANT & RUSSELL, INC., et al., Appellant,v.BURLINGTON NORTHERN RAILROAD CO., Appellee.DANT & RUSSELL, INC., et al., Appellant/Cross-Appellee,v.BURLINGTON NORTHERN RAILROAD CO., Appellee/Cross-Appellant. Nos. 89-35422, 89-35449. United States Court of...
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Opinion The People appeal from the order granting respondent Peter Coll Roa’s petition for writ of habeas corpus after the trial court found that extension of respondent’s parole was unlawful. The People contend, among other things, that the superior court misconstrued Penal Code section 3001, subdivision (a). Roa was not automatically discharged from parole because of the failure to provide ...
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951 F.2d 1083 John CARVER, Al Sampson, Herbert Barrus, Bill McClung,Leonard F. Lust, Donald J. Meyers, Plaintiffs-Appellants,v.WESTINGHOUSE HANFORD COMPANY, a Corporation, HanfordOperations and Engineering Pension Plan,Defendants-Appellees. No. 91-35002. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 11, 1991.Decided Dec. 17, 1991. Alex J. Skalba...
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Charles Frank and Moses Tootick were jointly tried and convicted of assault resulting in serious bodily injury under 18 U.S.C. § 113(f) and 1153. They appeal on the ground that the district court erred in denying their timely motions for severance made before and during trial. 736 F.Supp. 1047. Frank also argues on appeal that the court erred in permitting the jury to hear the incriminating state...
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Congress enacted the Financial Institutions Reform, Recovery and Enforcement Act (FIRREA), Pub.L. No. 101-73, 103 Stat. 183 (1989), in part to deal with financial problems of federally chartered thrift institutions. The question presented by this case is whether provisions of FIRREA establishing stricter capital requirements for thrifts and stricter limits on the amount a thrift may loan to a sing...
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Bruce Stupy brought this class action under section 1006 of the Postal Reorganization Act (“PRA”), 39 U.S.C. §§ 101-5605, to challenge the Postal Service’s policy of providing an entry-level wage to letter carriers voluntarily reassigned from urban to rural areas. The district court dismissed the claim against the Postal Service on the ground that the PRA, 39 U.S.C. § 1006, does not confer a priv...
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Appellants Dehlia Boone and Roger Swayze were involved along with Albert and Jerry Boone in the promotion and sale of undivided interests in mining claims on Miller Mountain, located outside of Low-man, Idaho. Albert Boone was the principal promoter of their scheme to sell mining shares. Dehlia Boone maintained the companies’ books and managed their finances. Jerry Boone staked the mining claim...
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951 F.2d 1074w UNITED STATES of America, Plaintiff-Appellee,v.Kenneth BARKER, Defendant-Appellant. Nos. 89-10105, 89-10228. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 7, 1990.Decided Dec. 16, 1991. NOTE: THE COURT HAS WITHDRAWN THIS OPINION ...
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*902 Opinion Appellant Robert Michael Mills was charged by information with murder (Pen. Code 1 , § 187), corporal injury to a child (§ 273d), and child abuse (§ 273a, subd. (1)). In connection with the murder charge, it was alleged that Mills inflicted great bodily injury (§ 1203.075). The corporal injury charge alleged that Mills inflicted great bodily injury with serious felony consequen...
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Opinion I Introduction The Ross family owns a 1.117-acre lot in Yorba Linda which is virtually surrounded by parcels of lesser size. At present, the property is zoned to allow only one dwelling per acre. If, however, the lot were rezoned to the zoning category to which most of the surrounding lots conform, the Rosses *958 could build another house on the property. T...
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Opinion Defendant Mark Shane Lashley was convicted in a court trial of attempted murder (Pen. Code 1 , §§ 187, subd. (a), 664), assault with a firearm (§ 245, subd. (a)(2)), civil rights violations (§§ 422.6, 422.7), and brandishing a weapon (§ 417, subd. (a)(2)). Enhancement allegations for personal use of a firearm and intentional infliction of great bodily injury during the ...
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Opinion Anthony and Ampelia Velasquez (appellants) appeal from the judgment entered in favor of Truck Insurance Exchange, Farmers Insurance Exchange and the Farmers Insurance Group (collectively, Farmers) in their bad faith action. Judgment followed the granting of Farmers’s motion for summary judgment on the grounds that the action was barred by the one-year limitations clause contained ...
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Six employer members of a multiemployer association (hereinafter NECA) were prevailing parties in an unfair labor practice case brought against them by the National Labor Relations Board. They challenge the Board’s refusal to award attorney fees under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504(a)(1) (1988). The statute provides that “[a]n agency that conducts an adversary adjud...
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A Montana state jury acquitted Billy Leon LaMere of selling cocaine to Mike LaMere at the D & L Bar in Box Elder, Montana on April 24, 1990. The state trial judge dismissed for lack of evidence a second charge that on April 25, 1990 at the D & L Bar Billy Leon LaMere aided, or attempted to aid, Zeke Parisian in the sale of cocaine. In the present case, Billy Leon LaMere was conv...
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950 F.2d 1477 Marcus S. SMITH, Hildegard U. Smith, Plaintiffs-Appellants,v.William MARSHALL, Jr., M.D., Defendant-Appellee. No. 88-5757. United States Court of Appeals,Ninth Circuit. Dec. 18, 1991. On Remand for the United States Supreme Court. Before HALL, WIGGINS and THOMPSON, Circuit Judges.ORDER 1 In accordance with the United States Supre...
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This is an appeal under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (“the Act”). Mikhail Miller worked as a longshoreman/millwright for the Bunge Corporation. On April 7, 1981, Miller injured his right arm and elbow while working on a grain elevator. Prior to this injury, Miller injured his right and left shoulders in industrial accidents in 1977. He also su...
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952 F.2d 262 Drake C. KENNEDY; Brian H. Kennedy, Co-Trustees of theRegency Outdoor Advertising, Inc., Defined BenefitPension Plan Trust, Plaintiffs-Appellants,v.ALLIED MUTUAL INSURANCE CO., a corporation, Defendant-Appellee. No. 90-55258. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 8, 1991.Decided Dec. 18, 1991. Joseph F. Hart, Weinstein &...
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951 F.2d 957 AMERICAN FRIENDS SERVICE COMMITTEE CORPORATION; Stephen G.Cary; Teresa Mathis; Aurora Camacho De Schmidtet al., Plaintiffs-Appellants,v.Richard THORNBURGH, Attorney General of the United States;United States Immigration and NaturalizationService; United States of America,Defendants-Appellees. No. 89-56095. United States Court of Appeals,Ninth Circuit. Argued and Su...
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951 F.2d 182 Jaki WALKER, Plaintiff-Appellant,v.CITY OF BERKELEY, Defendant-Appellee. No. 90-15353. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 13, 1991.Decided Aug. 22, 1991.As Amended Dec. 18, 1991. Joseph Clapp, Herron & Herron, San Francisco, Cal., for plaintiff-appellant. Marjorie Gelb, Asst. City Atty., Berkeley, Cal., for defen...
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952 F.2d 1073 139 L.R.R.M. (BNA) 2104 DENNIS L. CHRISTENSEN GENERAL BUILDING CONTRACTOR, INC., aCalifornia corporation, Plaintiff-Appellee,v.GENERAL BUILDING CONTRACTOR, INC., a California corp., Plaintiff,v.SOUTHERN CALIFORNIA CONFERENCE OF CARPENTERS, a LaborOrganization, Defendant-Appellant. No. 90-55839. United States Court of Appeals,Ninth Circuit. Argued and Submitted Jun...
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Opinion David Wayne Viers appeals his conviction for transportation of a controlled substance and possession of a concealed weapon, contending his motion to suppress evidence was improperly denied. We affirm. Detectives Shovlin and Peterson received information possible narcotics activity was taking place at the Roadway Inn. The motel manager informed them two separate rooms were receiving nu...
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Opinion Petitioner (defendant) seeks a writ of mandate commanding the respondent superior court to order the magistrate, a judge of the municipal court, to direct the People to conduct a “voice-only” lineup to ascertain if the victim of crimes charged against defendant can identify her assailant’s voice from among the voices of defendant and others. We shall hold that it is within the dis...
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951 F.2d 1112 21 Fed.R.Serv.3d 637 Charles K. ELDER; Beverly S. Elder, husband and wife,Plaintiffs-Appellants,v.R.D. HOLLOWAY; Other Unknown Employees and/or Agents,individually and in their official capacity aspolice officers for the Ada CountySheriff's Office, et al.,Defendants-Appellees. No. 91-35146. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. ...
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952 F.2d 275 UNITED STATES of America, Plaintiff-Appellee,v.Henry HEFFINGTON, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Manuel Richard ESTEVES, Jr., Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.William Glenn WOMBLE, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Steven Gene SILVA, Defendant-Appellant.UNITED STATES of America, P...
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Horst Werner Joetzki and Lawrence Carl Gisner appeal their convictions for mail fraud, wire fraud, and aiding and abetting, in violation of 18 U.S.C. sections 1341, 1343, and 2. They contend that the court improperly admitted prejudicial evidence concerning a bizarre method of refining gold, denied a severance motion, and refused requested jury instructions. They also challenge their sentences ...
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952 F.2d 267 UNITED STATES of America, Plaintiff-Appellee,v.Scott KOENIG, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Mark KOENIG, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Jacklyn BOBBY, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Robert HUSSEY, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Bobbi Jo BO...
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Wardlow appeals from his conviction and sentence for conspiracy to possess with intent to distribute and distribution of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm the conviction, but vacate the sentence and remand fo...
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David Glen Christoffel appeals his conviction and sentencing for possession with intent to distribute, and importation of marijuana. Christoffel raises a number of issues concerning his trial and sentencing. We affirm in part, reverse in part, and remand for resentencing. On September 12, 1989, U.S. Border Patrol Agents who were patrolling an isolated desert stretch of the U.S.-Mexico border in...
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Lewis Levine and others (“Levine”) brought a class action for purported violations of section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Securities Exchange Commission Rule lob-5, 17 C.F.R. § 240.10b-5 (collectively “Rule 10b-5”), as well as other federal and state laws. The complaint named the following defendants: Diamanthuset, a corporation to which we will refer by i...
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I concur in the majority’s conclusion that the sales tax at issue in this case is a “special tax” that may validly be imposed only if approved by a two-thirds vote of the local electorate. Although I have signed the majority opinion, I write separately to explain why, in my view, the court’s decision in this case should be premised on the statutory provisions of Proposition 62, rather than on the ...
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Opinion I. Introduction We confront in this case the interplay of two otherwise unrelated constitutional concerns: the prohibition against being twice put in jeopardy and the right of a criminal defendant to be mentally as well as physically present at *62 trial. In deciding whether real party in interest John Marks 1 may invoke the protections of the double jeopardy clause, we first cons...
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Opinion Terry Gregory Weddle (defendant) was convicted after a jury trial of first degree murder, second degree burglary, and two counts of felony hit and run. In a bifurcated court trial, three prior terms of imprisonment were found to be true. He was sentenced to an indeterminate term of twenty-five years to life for the murder plus three consecutive one-year terms for the priors. Sente...
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Plaintiffs Jason Daubert and Eric Schul-ler suffer from limb reduction birth defects. They allege that these defects resulted from the fact that their mothers used Bendectin, a prescription anti-nausea drug, during pregnancy. The plaintiffs seek damages from the drug’s manufacturer, defendant Merrell Dow Pharmaceuticals. Plaintiffs’ evidence of causation consisted primarily of expert opinion based...
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950 F.2d 1492 26 Collier Bankr.Cas.2d 143, Bankr. L. Rep. P 74,396,21 U.S.P.Q.2d 1775 In re QINTEX ENTERTAINMENT, INC.; Hal Roach Studios, Inc.;Qintex Productions, Inc., Debtors.OTTO PREMINGER FILMS, LTD., Appellant,v.QINTEX ENTERTAINMENT, INC.; Hal Roach Studios, Inc.;Qintex Productions, Inc., Appellees.In re QINTEX ENTERTAINMENT, INC.; Hal Roach Studios, Inc.;Qintex Productions, Inc....
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1 Cal.4th 36 (1991) 820 P.2d 600 2 Cal. Rptr.2d 376 ROBERT BOWENS, Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. S019774. Supreme Court of California. December 19, 1991. *38 COUNSEL Jay B. Gaskill, Public Defender, and Harold G. Friedman, Assistant Public Defender, for Petitioner. No appearance for Respondent. *39 Daniel E. Lungren...
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Charles Edward Larsen was convicted for his involvement in an international marijuana smuggling operation in violation of 18 U.S.C. §§ 2, 371, 1952(a)(3) and 21 U.S.C. §§ 841(a)(1), 846, 963, 952. Larsen challenges the legality of his conviction on numerous grounds, including the court’s extraterritorial application of 21 U.S.C. § 841(a)(1). We affirm. 1 Larsen’s conviction was based on evide...
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Boshell appeals from his conviction for conspiracy to knowingly and intentionally possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. § 2. Boshell alleges the government failed to timely produce discovery in compliance with the Jencks Act, 18 U.S.C. § 3500, and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The g...
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Robert Chamberlain and Coldwell Banker appeal the bankruptcy court’s award of damages for fraudulent misrepresentations made in connection with the purchase and sale of a lumber yard. They challenge the bankruptcy court’s jurisdiction, the standard of review applied by the district court, and the bankruptcy court’s finding of reasonable reliance. We have jurisdiction under 28 U.S.C. § 158(d), and ...
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First American Title Insurance Company (“First American”) appeals the summary judgment granted in favor of St. Paul Fire and Marine Insurance Company (“St. Paul”) in First American's action against St. Paul for declaratory relief and for bad faith breach of an insurance contract. First American’s lawsuit arose from St. Paul’s denial of coverage for damages incurred by First American. The district ...
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951 F.2d 1131 Vicente Fejeran AGUON, Concepcion Aguon Cruz, DavidMantanona, Ana Aguon Meno, Isabel Aguon Borja, andJesus Fejeran Aguon, Plaintiffs-Appellants,v.Pilar L. CALVO, Monsignor Oscar L. Calvo, Eleuterio L.Calvo, the Estate of Rufo L. Calvo, Felix L. Calvo, JuanitaDe Ora, Luisa C. Carlos, Magdalena L. Calvo, Maria C.Atalig, Dennis A. Calvo, the Heirs of Rafael L. Calvo,Defendants-Appel...
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Edgar E. Castillo appeals from a final order of the Board of Immigration Appeals (“the Board” or “BIA”) issued on October 15, 1990 denying his requests for asylum. Castillo contends that there is not substantial evidence to support the BIA’s determination that he was not eligible for asylum. This court has jurisdiction to hear this matter under section 106 of the Immigration and Nationality Act...
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Roger Olson appeals the district court order granting summary judgment in favor of General Dynamics, Allied-Signal, Science Applications International Corporation (“SAIC”), and SAIC Range Systems (collectively, “the appellees”). The district court ruled that Olson’s state law fraud claim relates to an employee benefit plan, and is therefore preempted by § 514(a), 29 U.S.C. § 1144(a), of the Employ...
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concurring in the judgment: I agree that ERISA preempts appellant’s state law fraud claim, and that no federal or other remedy now exists for the wrongful conduct he alleges. Even if the defendants defrauded Olson and induced him to accept employment by falsely representing that he would receive pension benefits equal to those he previously enjoyed, Olson may not assert the state cause of action h...
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Gaylord James Miguel appeals his conviction for possession of marijuana with intent to distribute and conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1); 841(b)(l)(B)(vii) and 846. Appellant argues that the district court erred in denying his motions to suppress because federal agents lacked probable cause to arrest him and the Miranda warnings read...
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Robert John Newbert pleaded guilty to two counts of making false statements in a matter within the Defense Department’s jurisdiction, in violation of 18 U.S.C. § 1001. He appeals the enhanced sentence imposed upon him based on the “relevant conduct” provision of the Sentencing Guidelines § 1B1.3. We affirm. FACTS AND PROCEEDINGS BELOW Newbert was employed by Litton Guidance and Control System...
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Opinion The primary issue raised on appeal by the appellant (Holt) in this case is whether he was acting within the course and scope of his employment by respondent (Booth) when he (Holt) negligently injured a third party. We will conclude that there is sufficient evidence to support the judgment entered below to the effect that Holt was not acting within the course and scope of his employment ...
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Opinion Appellants David Costa and Deanna Costa appeal from their convictions, after a jury trial, of knowingly making their home available for the manufacturing of a controlled substance for sale or distribution (Health and Saf. Code, § 11366.5, subd. (a)) and David Costa’s conviction of manufacturing amphetamine (Health and Saf. Code, § 11379.6). 1 On appeal, they contend that the prosecuti...
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*1087 Opinion The trial court found attorney and former Alcoholic Beverage Control Investigator Thomas Anderson conspired to violate state liquor laws (Bus. & Prof. Code, § 24079 [transfer of restricted liquor license for consideration in excess of statutory amount]; Pen. Code, § 182, subds. (a)(1), (5)). Anderson argues Orange County was an improper venue, section 24079 is not a...
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Opinion Appellant Albert P. Guilmette was sentenced to an aggregate state prison term of 25 years following his convictions of burglary, 2 counts of rape, assault with a deadly weapon, and false imprisonment, with weapon use enhancements and prior convictions being found true. He appeals, contending (1) that the trial court erred in admitting his postarrest telephone conversation with the victi...
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Opinion This is an appeal from a judgment (orders of dismissal) following two orders sustaining, without leave to amend, two separate demurrers to appellants’ second amended complaint. That complaint sought over $2 million in damages in connection with the dissipation of assets of a testamentary trust through improper and imprudent investments by the former trustees of the trust, together...
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Opinion Oscar Karrin et al. (Karrin), tenants of defendant Ocean-Aire Mobile Home Estates et al. (Ocean-Aire), appeal from the judgment upholding the validity of a monthly capital improvement assessment charged by Ocean-Aire for the repavement of roads within the park. This fee was assessed pursuant to ordinance number 2064 of the City of Oxnard “establishing a mobilehome park rent stabil...
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In this action for recovery of short-swing profits brought pursuant to section 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78p(b), Unocal Corporation appeals from the denial of its cross motion for summary judgment, and the order granting a motion for summary judgment in favor of Mesa Petroleum Company, Mesa Southern Company, Mesa Asset Company, CY-41, Inc., and Jack-41, Inc. (Mes...
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Lubelyn Caddali appeals the denial of her petition for a waiver of deportability under section 241(f)(1) of the Immigration and Naturalization Act, 8 U.S.C. § 1251(f)(1), repealed by Pub.L. 101-649, § 602(b)(1), Nov. 29, 1990. We reverse and remand. FACTS Lubelyn L. Caddali, a citizen of the Philippines, was born in Banna llocos Norte, Philippines on July 28, 1964. She beca...
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James B.A. Niven appeals his sentence for mail and wire fraud. Niven contends that the district court erred in calculating his adjusted offense level. Niven asserts eight errors: (1) an erroneous loss calculation; (2) incorrect adjustment for role as supervisor or manager; (3) refusing to give a downward adjustment for acceptance of responsibility; (4) inclusion of prior convictions when he was n...
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OPINION This appeal arises under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (“the Act”). On June 4, 1984, Mehmet Sekin, an employee of Lockheed Shipbuilding Company (“Lockheed”) who had worked for Lockheed since at least 1977, experienced extreme pain in his back radiating down into his right leg while fitting steel I-Beams into a deck frame with a 16...
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951 F.2d 1137 McCARTHY WESTERN CONSTRUCTORS, INC., an Arizona corporation;Cannon and Wendt Electric Company, Inc.,Plaintiffs-Appellees,v.The PHOENIX RESORT CORPORATION, a Delaware corporation, etal., Defendant,andResolution Trust Corporation, as Federal Receiver forLincoln Savings and Loan Association, F.A.,Intervenor-Appellant. No. 91-15797. United States Court of Appeals, Ninth Circu...
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Opinion Eleven supervisory land surveyors employed by the State of California Resources Agency (Resources Agency) 1 filed a petition for writ of mandate in superior court to compel the Resources Agency and Department of Personnel Administration (DPA) to make salaries for surveyors in the land surveyor classification comparable to salaries for surveyors classed as boundary deter...
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Opinion Plaintiff Otay Water District (Otay) sued adjacent property owners defendants Warren W. Beckwith, Donald F. Wall and others, seeking to quiet title to a prescriptive easement. Defendants cross-claimed for inverse condemnation, ejectment, and fraud. After Otay successfully moved for summary judgment, the court entered judgment against defendants on the complaint and cross-complaint...
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Opinion In this original proceeding we are asked to review the decision of the trial court, upholding the action of real party City of Riverside (City) in refusing to place a citizens’ initiative on the ballot. The trial court ruled that the proposed initiative was constitutionally defective and also represented an impermissible effort to amend the City’s charter by ordinance. We agree on...
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Opinion Petitioner Ernest W. Hahn, Inc., doing business as The Hahn Company, and Horton Plaza Associates (collectively Hahn) seek a peremp *1450 tory writ of mandamus to compel the court to vacate its order denying Hahn’s demurrer to Robert A. Martin (Martin) and Clifton J. Rogers’s (Rogers) cause of action for strict liability. Because we conclude a strict liability theory is inapplicable to...
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Opinion Stephen Bischel sued Fire Insurance Exchange (Exchange) for breach of cont act and insurance bad faith stemming from a claim under his homeowners insurance policy for damage to the boat dock adjacent to his home. Exchange paid policy benefits to rebuild the dock to its preloss condition, but refused to pay additional benefits to rebuild the dock to upgraded municipal code standard...
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The trial court sustained demurrers to Harold Nowlon’s first amended complaint without leave to amend. We conclude that Nowlon should be permitted to amend the complaint and reverse. Facts Nowlon alleges that he was injured when he slipped and fell at his place of employment. He theorizes that his fall was caused by the negligent acts of Western Building Cleaning Company (Western), which is n...
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1 Cal.App.4th 1544 (1991) 3 Cal. Rptr.2d 21 EVELIA JAUREGUI, Plaintiff and Appellant, v. MID-CENTURY INSURANCE COMPANY, Defendant and Respondent. Docket No. C007050. Court of Appeals of California, Third District. December 23, 1991. *1546 COUNSEL Brislain, Zink & Lenzi and Albert J. Lenzi, Jr., for Plaintiff and Appellant. Kroloff, Belcher, Smart, Perry & Christopherson and Randy Lockwood...
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Opinion This appeal presents an issue of first impression in California: whether the Sales and Use Tax Law applies to receipts from the furnishing of paging devices in conjunction with telephone paging services. We conclude it does not. Facts During the years involved in this appeal, 1974-1981, MCI Airsignal, Inc., (hereafter MCI) was in the business of providing telephone pagin...
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Opinion Buyer agreed to purchase a shopping center from Seller but later changed his mind. Buyer’s real estate broker sued Buyer for his commission. Broker was awarded judgment in the amount of $10,000. Both Buyer and Broker appeal. 1 We modify the judgment to increase the amount recovered by Broker to $100,000, and remand the matter to the trial court to determine the issue of...
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Opinion We granted review to decide whether state laws governing hazardous waste disposal facilities preempt the efforts of Solano County (County) to force removal of wastes unlawfully deposited by a facility operator within the “buffer” or “setback” zone long established by County land use permits. We find no express or implied state-law restriction on the traditional rule that a local g...
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BMG Music, CBS Inc. and A & M Records, Inc. (“plaintiffs”) brought a copyright infringement action against Edmundo Perez and his wholly owned corporations, La Feria del Disco and La Feria del Disco No. 1 (“Perez”). The district court entered judgment for the plaintiffs and Perez appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. I Plaintiffs produce, manufacture, d...
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This action arises out of an FAA rule banning fixed wing aircraft from the air route along the portion of California coast from Northern San Diego County to Ventu-ra County known as the “shoreline transition.” In Southern California Aerial Advertisers’ Ass’n v. FAA, (“SCAA”), 881 F.2d 672, 678 (9th Cir.1989), we held that the ban was a substantive rule and that it was invalid because...
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State Farm appeals from an order denying its motion for summary judgment and granting Sylvia Kim’s cross-motion for summary judgment. We reverse. BACKGROUND The parties agree that no genuine issue of material fact exists. Sylvia Kim was seriously injured in an accident while riding in an automobile owned by her father, Edward Kim, and driven by her mother, Agnes Kim. The “accident veh...
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Opinion Summary The People appeal after the trial court granted an automatic motion to modify the jury’s verdict of death to one of life without possibility of parole. *1595 (Pen. Code, § 190.4, subd. (e), hereafter, § 190.4(e).) In ruling on the motion tiie judge compared the facts of the present case with the facts of other capital cases he had heard in which the death penalty had been ...
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In 1983, Gilbert Martinez was tried in state court and convicted of numerous pizza parlor robberies. During the pretrial *1155 proceedings, the prosecution indicated that, should the defendant testify, it would seek to introduce as impeachment evidence the defendant’s two prior felony convictions for murder and assault with a deadly weapon. The defendant moved in limine ...
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Elmer and Elsie Fobian appeal from the decision of the Bankruptcy Appellate Panel (“BAP”) reversing the bankruptcy court’s confirmation of their chapter 12 plan. They argue that the BAP erred in holding that the plan could not be confirmed because it did not meet the requirements of Section 1225 of the Bankruptcy Code. 1 The Bank argues for affirmance of the BAP’s decision, and asks that we awa...
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951 F.2d 1158 60 USLW 2449, 1991-2 Trade Cases P 69,665 YELLOW PAGES COST CONSULTANTS, INC.; Media Masters, Inc.;Tel-Ad Advisors, Inc.; Southern DirectoryConsultants, Inc., Plaintiffs-Appellants,v.GTE DIRECTORIES CORPORATION; GTE Directories SalesCorporation; GTE National Marketing Services Corporation;GTE Directories Publishing Corporation; GTE DirectoriesPrinting Corporation; GTE ...
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ORDER The opinion filed May 13, 1991, 934 F.2d 190 (9th Cir.1991), should be amended as follows: add a footnote at page 194, following “agreement” at the end of the first full paragraph as follows: In United States v. Loveday, 922 F.2d 1411, 1417 (9th Cir.1991), we held that section 5K2.0 allowed upward departure on the basis of non-conviction misconduct only if the misconduct was “relevant...
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Opinion The sole issue presented by this appeal is whether the burden of proof borne by a defendant moving to withdraw his plea of guilty pursuant to Penal Code section 1018, prior to pronouncement of judgment, is *1455by the standard of clear and convincing evidence or by a preponderance of the evidence. Finding that the trial court properly denied the motion to withdraw the plea of guilty using ...
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Opinion Following an unsuccessful settlement conference, the trial court transferred this action from the superior court to the municipal court under the authority of Code of Civil Procedure section 396. 1 The basis for the order was the trial court’s finding that plaintiff was “unlikely” to recover damages in excess of $25,000, and that the matter was therefore within the excl...
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Hartford Accident and Indemnity Company (“Hartford”) appeals the district court’s grant of summary judgment to Intel Corporation (“Intel”). The district court held that the insurance policy issued by Hartford to Intel covered expenses incurred by Intel pursuant to a consent decree it had entered into with the United States Environmental Protection Agency (the “EPA”); under the consent decree, I...
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Pedro and Jose Hernandez (respectively, “Pedro” and “Jose”) appeal their convictions of four felonies relating to the counterfeiting of audio cassettes and labels. They both claim there was insufficient evidence to convict them, and they both appeal their sentences. Jose makes two additional claims: first, he appeals the district court’s refusal to sever his trial from Pedro’s; second, he appeals...
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Opinion We address the question of whether a court has jurisdiction to grant summary judgment or summary adjudication when the defendant presents a valid defense. Between 1939 and 1991 the answer was clear and affirmative. In 1990, the Legislature amended the summary judgment statute to solve different problems and in the process cast doubt upon well-established law. We grant a writ of ma...
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ORDER AND AMENDED OPINION This action challenges the constitutionality of an ordinance which regulates the sale of merchandise on public sidewalks by nonprofit groups. The district court concluded that the ordinance violated the nonprofits’ First Amendment rights and enjoined its enforcement insofar as it prohibits the sale by nonprofit organizations of merchandise constituting or making a stat...
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952 F.2d 321 21 Fed.R.Serv.3d 530 Kenneth Christopher CURNOW, a minor, by and through hisguardian ad litem, Sandra CURNOW; Ken Curnow; SheilaEfflandt; Sandra Curnow, as administratrix of the estate ofSteven Murray Curnow, deceased; Cris Curnow; and SandraCurnow, as an individual, Plaintiffs-Appellees,v.The RIDGECREST POLICE, a municipal law enforcement agency;the City of Ridgecrest, a...
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*30 Opinion Introduction Defendant and appellant Thomas E. Gabele (Gabele) appeals the judgment in favor of plaintiff and respondent the Earl of Loveless, Inc. (Loveless) on a promissory note. Gabele contends Loveless failed to provide notice required by the California Uniform Commercial Code prior to the sale of collateral seeming the note, precluding recovery of a def...
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Opinion Introduction Defendant and appellant Bonyan Salami (Salami) appeals the judgment in an action in eminent domain by the People of the State of California (State), awarding him $940,000 for his property taken for construction of the Century Freeway. Salami contends the trial court erred in instructing the jury on the burden of proof on the issue of goodwill. He also contends, for the ...
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Opinion In 1978 the voters adopted Proposition 13, which provides that until a change in ownership occurs real property may be taxed at no more *159 than 1 percent of its 1975-1976 assessed value adjusted for inflation. When ownership changes, the property may be reassessed at its current market value. We are asked to decide whether, when a vendor sells a fee simple interest ...
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Opinion We granted review to determine whether a writ of mandate under Code of Civil Procedure section 170.3, subdivision (d)1 (hereafter section 170.3(d)) is the exclusive means by which a party may seek review of an unsuccessful peremptory challenge against a trial judge. (§ 170.6.) We conclude, as did the Court of Appeal in this case, that section 170.3(d) prescribes the exclusive means of app...
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*1523 Opinion A landlord may not terminate a tenant’s occupancy of his or her residence under a lease by shutting off the utility services. (Civ. Code, 1 § 789.3.) We hold that a tenant need not live in the premises full-time in order to be a resident. Here the owner of a mobilehome in Santa Barbara moved to Nevada but continued to pay rent for the space in which her mobilehome was loca...
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Thomas McCleary, a Medford police officer, relied on a confidential informant to obtain a search warrant for “the second house on the right” of a street where the Navarros, who were not a target, live. McCleary, and other officers who executed the warrant, figured the Navarros’ house was the second house on the right. It was not, and the Navarros brought this 42 U.S.C. § 1983 action alleging vi...
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This appeal presents an issue of first impression: Is a district court’s refusal to vacate a civil contempt order resulting from an IRS enforcement action appealable when the contemnor has failed to appeal the underlying contempt order? We hold that under the circumstances of this case it is not, and dismiss for lack of appellate jurisdiction. FACTS Clifford G. Wheeler (Wheeler) and his wife ...
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952 F.2d 1120 21 Fed.R.Serv.3d 720 MGIC INDEMNITY CORPORATION, PlaintiffandMcKenna, Conner & Cuneo, formerly counsel of record toplaintiff MGIC Indemnity Corporation, Appellant,v.Curtis Donald MOORE, Defendant,andKaren L. Simpson, Defendant-Appellee. No. 89-55713. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 7, 1991.Decided Dec. 27, 1991. ...
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Gentry McKinney was convicted on numerous counts of currency reporting violations. He moved for a new trial ten months after the verdict, on the ground of juror misconduct. The district court found that information implicating the juror’s impartiality had been disclosed before the verdict was returned, and denied the motion. McKinney appeals, arguing that letters from the juror and an investigato...
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Appellant John Stanley Wryn was convicted of conspiracy to distribute, and possession with intent to distribute, LSD in violation of 21 U.S.C. §§ 846 and 841(a)(1). His conviction was based in part on his state probation officer’s discovery of 8,000 dosage units of LSD in his house during a warrantless search. It is undisputed that at the time of this search the probation officer had reasonable c...
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Defendants David McHenry and John Guide were convicted of conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 371. Defendants appeal their convictions and the district court’s award of restitution. In a separate, unpublished disposition, we affirmed the convictions. In this opinion, we vacate the restitution award and leave the balance of the sentence intact. We have jurisdiction...
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Opinion Defendant was charged with cocaine possession. (Health & Saf. Code, § 11350.) After the magistrate granted defendant’s motion to suppress at the preliminary hearing, the superior court granted the People’s motion to reinstate the complaint. Eventually, defendant succeeded in convincing the superior court to grant his consolidated motion to suppress and motion to set aside the info...
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*1667 Opinion Following the denial of his motion to suppress evidence (Pen. Code, § 1538.5), a jury convicted defendant of possession of oxycodone (percodan) (Health & Saf. Code, § 11350; count I), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count II), and driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). Sentenced to state prison...
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134 B.R. 377 (1991) In re PORT ANGELES WATERFRONT ASSOCIATES, Debtor. PORT ANGELES WATERFRONT ASSOCIATES, City of Port Angeles, and Security Pacific Savings Bank, Appellants, v. PORT OF PORT ANGELES, Appellee. BAP No. WW-90-1485 MeJR, Bankruptcy No. 89-06044, Adv. No. A90-00011. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted February 21, 1991. Decided December...
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Opinion In this case we consider whether a secured note providing for interest at a rate of 200 percent per annum is unconscionable. In the circumstances presented here, we conclude that it is. I Facts The evidence at trial established that on July 27, 1988, George Arrospide, Jr., signed a $4,000 note and deed of trust on behalf of his father, Jorge Arrospide, Sr., as his a...
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Opinion Appellant, Shuwa Investments Corporation (Shuwa), appeals from a summary judgment in favor of defendant and respondent County of Los Angeles (County), denying its claim for partial refund of property taxes. The ultimate issue in this appeal is whether Shuwa’s acquisition of the ARCO Plaza office building complex in downtown Los Angeles resulted in a 50 percent “change of ownership...
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Opinion Plaintiff Meredith Miller appeals from summary judgment granted in favor of defendant Lakeside Village Condominium Association, Inc. (Lakeside Village) on plaintiff’s fourth amended complaint for damages for personal injuries allegedly caused by defendant’s negligence in failing to repair and maintain the plumbing system in plaintiff’s condominium.1 The primary question on appeal is wheth...
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Opinion Introduction In this case we face a variation on the recurrent theme of executive agencies seeking to implement “house rules” unfettered by any outside constraints—rules sometimes called “underground regulations.” (See Armistead v. State Personnel Board (1978) 22 Cal.3d 198, 205 [149 Cal.Rptr. 1, 583 P.2d 744]; Grier v. Kizer (1990)...
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Opinion Petitioner (applicant) seeks review of an opinion and order of respondent Workers’ Compensation Appeals Board (Board), We *1660 shall hold that a petition for writ of review filed more than 45 days after the Board’s denial of reconsideration is jurisdictionally untimely. Accordingly, we shall dismiss the instant petition. Labor Code section 5950 provides in pert...
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*200Opinion Defendant David Rey Fierro was convicted by a jury of first degree murder (Pen. Code, § 187)1 and two counts of robbery (§ 211). The jury found true the special circumstance allegation that the murder was committed during the perpetration of a robbery (§ 190.2, subd. (a)(17)(i)), and also returned a special finding that defendant shot and killed the victim. As to each count the jury al...
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Opinion We affirm the judgment finding defendant Teodoso Figueroa Ventura guilty of various narcotics violations. Background After arresting defendant in his car and recovering cocaine and heroin, sheriff’s deputies served a search warrant on a garage apartment rented by defendant. There they found cocaine, heroin, narcotics paraphernalia, and a book with notations indicating that the locat...
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953 F.2d 469 60 USLW 2441, 1992 Copr.L.Dec. P 26,850,21 U.S.P.Q.2d 1376 John MARASCALCO, d/b/a Robin Hood Music, Plaintiff-Appellee,v.FANTASY, INC., d/b/a Jondora/Parker Music, Defendant-Appellant. No. 90-56372. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 6, 1991.Decided Dec. 30, 1991. Norman G. Rudman, Slaff, Mosk & Rudman, Los Angele...
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This appeal presents the question whether interests in two separate investment programs sold by Richard Reynolds and R.G. Reynolds Enterprises, Inc. are securities. We hold that they are and affirm the district court’s award of summary judgment in favor of the Securities and Exchange Commission. I Richard Reynolds formed R.G. Reynolds Enterprises, Inc. in January 1985. As president, s...
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953 F.2d 488 60 USLW 2443 Ed HARWIN, Plaintiff-Appellee,v.GOLETA WATER DISTRICT, Defendant-Appellant. No. 90-55105. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 7, 1990.Decided Dec. 30, 1991. Robert E. Goodwin, Russell R. Ruiz, Santa Barbara, Cal., for defendant-appellant. Thomas D. Wise, Hatch and Parent, Santa Barbara, Cal., for pla...
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This appeal concerns a labor dispute and arbitration that began nearly a decade ago when the railroad suspended its railway operation between Skagway, Alaska and Lake Bennett, Yukon Territory. Several grievances were heard by a three-member arbitration panel. The union prevailed on the grievances relevant here. The railroad sued to vacate the awards, alleging that the third member of the panel,...
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Burlington Northern Railroad Company (Burlington) appeals from an amended judgment of $320,450 in favor of former Burlington employee Silas Counts, following a bifurcated jury trial of Counts’ claims under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60. Burlington appeals on grounds that Counts’ theories for invalidating a release he entered into with Burlington were unpreceden...
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Daniel Lee Strandberg appeals from the sentence imposed by the district court. He contends that the court erred in ordering a two-point upward adjustment under United States Sentencing Guidelines § 2B3.1(b)(2)(F) (formerly § 2B3.1(b)(2)(D)) of the offense level because he uttered an express threat of death. We affirm because we conclude that Strandberg’s admonition to a teller not to “pull the ...
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938 F.2d 1040 37 Cont.Cas.Fed. (CCH) 76,145 UNITED STATES of America, Plaintiff-Appellee,v.NYE COUNTY NEVADA; Bernie C. Merlino, Nye County Assessor,Defendants-Appellants. No. 90-15128. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 8, 1991.Decided July 15, 1991. Rex Jemison, Beckley, Singleton, De Lanoy, Jemison & List, Las Vegas, Nev...
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