California Case Law: July 2009 Archives
California Case Law - The FindLaw California Supreme Court and Courts of Appeal Opinion Summaries Blog

July 2009 Archives

Trial court judgment declaring minor children dependents of the juvenile court is reversed where the evidence is insufficient to support the court's findings that the minors were at substantial risk of suffering serious physical harm or illness as a result of the mother's mental illness or substance abuse, or that the father was unable to protect them.   

Read San Diego County Health and Human Serv. Agency v. Violet R., No. D054065 in PDF

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Appellate Information
APPEAL from judgments of the Superior Court of San Diego County, Carol Isackson, Judge. Reversed.
FOURTH APPELLATE DISTRICT, DIVISION ONE
Filed July 15, 2009
Published July 30, 2009

Judges
Before: McDONALD, Acting P.J., McINTYRE, J., IRION, J.
Opinion by McDONALD, Acting P.J.

Counsel
For Plaintiff: John J. Sansone, County Counsel, John E. Philips and Katharine R. Bird, Deputy County Counsel.

For Defendant: Patricia K. Saucier and Neale B. Gold, under appointment by the Court of Appeal.

California Grocers Assoc. v. City of LA, No. B206750

Trial court judgment enjoining enforcement of an ordinance requiring purchasers of large grocery stores to employ the prior store's workforce for 90 days is affirmed where the ordinance requires successor grocery employers to employ experienced workers in order to maintain health and safety standards at the store during the transition to new management and thus enters into a field fully occupied by state law, and is preempted by the California Retail Food Code as well as the National Labor Relations Act.    

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Appellate Information
APPEAL from a judgment of the Superior Court of Los Angeles County, Ralph W. Dau, Judge. Affirmed.
SECOND APPELLATE DISTRICT, DIVISION FIVE
Filed July 30, 2009

Judges
Before: KRIEGLER, J., TURNER, P.J., MOSK, J.
Opinion by KRIEGLER, J.
Dissenting Opinion by MOSK, J.

Counsel
For Plaintiff: Jones Day, Richard S. Ruben, Craig E. Stewart and Nathaniel P. Garrett.

For Defendant: Rockard J. Delgadillo, City Attorney, Laurie Rittenberg, Assistant City Attorney, and John A. Carvalho, Deputy City Attorney.

Trial court's denial of petition for writ of mandate to require defendants to abide by the No Child Left Behind Act requisites for assessing limited English proficient students is affirmed where: 1) the NCLBA gives to participating states the discretion to devise an appropriate assessment plan for LEP students; 2) the State Board of Education's testing purpose to measure LEP students' mastery of academic content standards in English is not incompatible with the NCLBA; and 3) the State Board did not abuse its discretion in deciding to test LEP students in English, with accommodations.   

Read Coachella Valley Unified Sch. Dist. v. State of California, No. A120667 in PDF

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Appellate Information
Appeal from San Francisco City and County Super. Ct. No. CPF-05-505334.
FIRST APPELLATE DISTRICT, DIVISION FOUR
Filed July 30, 2009

Judges
Before: Reardon, J., Ruvolo, P.J., Rivera, J.
Opinion by Reardon, J.
Concurring Opinion by Rivera, J.

Counsel
For Appellant: Hadsell, Stormer, Keeny, Richardson & Renick, Dan Stormer, Virginia Keeny, Law Offices of Marc Coleman, Marc Coleman, Garcia, Calderon & Ruiz, Mary Hernandez.

For Respondent: Edmund G. Brown, Jr., Attorney General, Douglas M. Press, Senior Assistant Attorney General, Karin S. Schwartz, Susan M. Carson, Supervising Deputy Attorneys General, Jennifer A. Bunshoft, Deputy Attorney General.

People v. Burney, No. S042323

Conviction for first degree murder and other crimes and sentence to death is affirmed where: 1) the trial court properly denied the motion to quash defendant's indictment as there is no merit in defendant's claim that Asian-Americans were unconstitutionally excluded from the grand jury; 2) the court did not err in denying his motion for severance; 3) defendant was not prejudiced by the court's refusal to conduct sequestered voir dire, and was thus not deprived of a fair and impartial jury; 4) the court did not err in admitting evidence of the contents of the victim's wallet; 5) the court did not commit any instructional errors; 6) the evidence was sufficient to support his convictions; 7) the court did not err in refusing defendant's requested modified jury instruction; 8) the court properly admitted victim impact testimony; 8) the court did not err in any of its pattern instructions or special instructions to the jury during the penalty phase; and 10) the prosecutor did not commit any misconduct. Defendant's sentence does not violate state, constitutional, or international law.     

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Appellate Information
Appeal from Orange County Super. Ct. No. C-94692.
Filed July 30, 2009

Judges
Before: BAXTER, J., GEORGE, C.J., WERDEGAR, J., CHIN, J., MORENO, J., CORRIGAN, J., KENNARD, J.
Opinion by GEORGE, C.J.

Counsel
For Plaintiff: Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood, Warren P. Robinson and Annie Featherman Fraser, Deputy Attorneys General.

For Defendant: Geraldine S. Russell, under appointment by the Supreme Court.

People v. Castellanos, No. B210705

Conviction for felony petty theft is affirmed and subsequent fines in connection with the conviction are affirmed in part and reversed in part where: 1) a Penal Code sec 1202.5 (a) fine must be imposed principally in theft related cases, contingent on the ability to pay, and is also subject to additional penalty assessments, the state surcharge, the state court construction penalty, and two DNA penalties; and 2) on remittur, the court must assess defendant's ability to pay in light of his financial obligations and whether to impose the full fine and the other assessments, surcharge, and penalties, a lesser amount, or none at all. 

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Appellate Information
APPEAL from a judgment of the Superior Court of Los Angeles County, Teri Schwartz, Judge. Affirmed as modified.
SECOND APPELLATE DISTRICT, DIVISION FIVE
Filed July 29, 2009

Judges
Before: TURNER, P.J., ARMSTRONG, J., KRIEGLER, J.
Opinion by TURNER, P.J.
Concurring Opinion by KRIEGLER, J.

Counsel
For Plaintiff: Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, and Sarah J. Farhat, Deputy Attorney General.

For Defendant: Linda L. Gordon, under appointment by the Court of Appeal.

Lee v. Lee, No. F056107

In a dispute involving a transfer of property, trial court judgment is affirmed where: 1) a disputed 2002 deed is not invalid under the statute of frauds as the deed was an executed contract since defendants executed the deed and delivered it to plaintiffs with the intent to transfer their interest in the property; 2) the 2002 deed is valid as to plaintiff despite being altered, as it was executed and delivered to plaintiff and thus vested title in her before a third party altered the deed; and 3) the court did not abuse its discretion in refusing to impose an evidenciary sanction and admitting promissory notes into evidence.   

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Appellate Information
APPEAL from a judgment of the Fresno County Superior Court. Adolfo M. Corona, Judge.
FIFTH APPELLATE DISTRICT.
Filed July 29, 2009

Judges
Before: Levy, Acting P.J., Gomes, J., Dawson, J.
Opinion by Levy, Acting P.J.

Counsel
For Plaintiff: Law Offices of Jeffrey D. Bohn and Jeffrey D. Bohn.

For Defendant: Law Office of Myron F. Smith and Myron F. Smith.

Salsedo v California Dept. of Parks and Recreation, No. A122125

Trial court's grant of preliminary injunction ordering defendant to issue plaintiff a permit for vehicle access to Gold Bluffs Beach located within Prairie Creek Redwoods State Park is affirmed where the National Park Service is not an indispensable party to these proceedings, despite the cooperative arrangement between defendant and the National Park Service for managing the parklands within the Redwood National and State Parks, as defendant retains the authority to issue permits for access to the area that remains within state jurisdiction.    

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Appellate Information
APPEAL from Humboldt County Super. Ct. No. CV080136.
FIRST APPELLATE DISTRICT, DIVISION THREE
Filed July 29, 2009

Judges
Before: Pollak, J., McGuiness, P.J., Jenkins, J.
Opinion by Pollak, J.

Counsel
For Plaintiff: Edmund G. Brown, Jr., Attorney General, J. Matthew Rodriquez, Chief Assistant Attorney General, Mary E. Hackenbracht, Senior Assistant Attorney General, John Davidson, Supervising Deputy Attorney General, Anita E. Ruud, Deputy Attorney General.

For Defendant: Mathews, Kluck, Walsh & Wykle, LLP, Kelly M. Walsh.

White v. Cridlebaugh, No. F053843

In an action for breach of contract, negligence, fraud, and violations of California's licensure requirements, trial court judgment is modified and affirmed where: 1) the court properly granted plaintiffs' motion for a directed verdict on their Business and Professions Code sec. 7031 claim for reimbursement of the compensation paid for the unlicensed work as the corporation that acted as the building contractor on the project violated California's licensure requirements; and 2) the reference in Business and Professions Code sec. 7031 to the recovery of all compensation paid an unlicensed contractor means the unlicensed contractor cannot reduce the recovery authorized by asserting claims of offset, indemnity, or contribution arising out of the unlicensed work. 

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Appellate Information
APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge.
FIFTH APPELLATE DISTRICT
Filed July 29, 2009

Judges
Before: DAWSON, J., LEVY, Acting P.J., CORNELL, J.
Opinion by DAWSON, J.

Counsel
For Plaintiff: Ana M. Soares

People v. Hirata, No. B212061

Trial court judgment dismissing the criminal case against defendant is affirmed where: 1) a search warrant failed the test of time as the trial court reasonably found that the affidavit information was stale after an 82 day delay between the date the alleged criminal activity occurred and the issuance of the warrant; and 2) the court properly determined that the good faith exception to the exclusionary rule did not apply as the officer's reliance on the warrant was not objectively reasonable.    

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Appellate Information
APPEAL from San Luis Obispo County Superior Court Nos. F407913, F408359.
SECOND APPELLATE DISTRICT, DIVISION SIX
Filed July 28, 2009

Judges
Before: GILBERT, P.J., COFFEE, J., PERREN, J.
Opinion by GILBERT, P.J.

Counsel
For Plaintiff: Gerald T. Shea, District Attorney, Cheryll Manley, Deputy District Attorney.

For Defendant: Sanger & Swysen, Robert M. Sanger, Stephen K. Dunkle.

Farahani v. San Diego Cmty. College Dist., No. D054087

Trial court order granting plaintiff's petition for writ of mandate to require defendant to reinstate plaintiff with full back pay, interest and benefits and requiring its governing board to determine whether plaintiff should be terminated is affirmed where: 1) the court properly  ruled that the Agreement between the parties was invalid and unenforceable, and violated Education Code sec. 87485 and plaintiff's due process rights; and 2) the court did not abuse its discretion in rejecting defendant's laches and unclean hands defense, and in finding that the exhaustion of remedies doctrine did not apply.    

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Appellate Information
APPEAL from a judgment of the Superior Court of San Diego County, Joan M. Lewis, Judge. Affirmed.
FOURTH APPELLATE DISTRICT, DIVISION ONE
Filed July 28, 2009

Judges
Before: McINTYRE, J., BENKE, Acting P.J., HUFFMAN, J.
Opinion by McINTYRE, J.

Counsel
For Plaintiff: Grady and Associates, Dennis M. Grady, Kenneth W. Baisch, and Bradley K. Moores. 

For Defendant: Stutz Artiano Shinoff & Holtz, Ray J. Artiano and Richard E. Romero

Negrete v. Becerra, No. D053519

Probate court judgment ordering plaintiff to pay monetary sanctions to the court and attorney's fees to the court appointed attorney for defendant is reversed where the orders are legally erroneous, unsupported by the record, and a prejudicial abuse of discretion as the court failed to follow proper procedures in giving notice of the proposed sanctions and in awarding them for the express or implied reasons disclosed by the record.    

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Appellate Information
APPEAL from orders of the Superior Court of San Diego County, David G. Brown, Judge. Reversed with directions.
Filed July 28, 2009

Judges
Before: HUFFMAN, Acting P.J., NARES, J., AARON, J.
Opinion by HUFFMAN, Acting P.J.

Counsel
For Respondent: Parisa P. Farokhi.

For Appellant: Linda Paquette, in pro. per.

People v. Brown, No. C059314

Conviction for drug crimes is affirmed where trial court did not err in not requiring defendant's appointed counsel to make a motion to withdraw defendant's guilty plea as counsel is not required to make legally unsupported motions, and the court is not required to order counsel to make such motions.    

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Appellate Information
APPEAL from a judgment of the Superior Court of Sacramento County, David Francisco De Alba, Judge. Affirmed.
Filed July 28, 2009

Judges
Before: NICHOLSON, J., BLEASE, Acting P.J., SIMS, J.
Opinion by NICHOLSON, J.

Counsel
For Plaintiff: Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior, Assistant Attorney General, Michael A. Canzoneri and David A. Lowe, Deputy Attorneys General

For Defendant: Jackie Menaster, under appointment by the Court of Appeal.

Drake v. Superior Court of Santa Cruz County, No. H033614

Peremptory writ of mandate directing the trial court to vacate its order denying petitioner's application for a certificate of probable  cause for his appeal is granted where the court erred in denying petitioner's application for being untimely under Cal. Rules of Court 8.304(b) as the rule does not clearly specify when the items in questions are to be filed. The court is ordered to consider petitioner's application for a certificate of probable cause on the merits or on other procedural grounds.    

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Appellate Information
Appeal from Santa Cruz County Super.Ct.No. W43101.
Filed July 27, 2009

Judges
Before: Duffy, J., Premo, Acting P.J., Elia, J.
Opinion by Duffy, J.

Counsel
For Petitioner: Patricia S. Lai, Law Office of Patricia S. Lai.

For Real Party in Interest: Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Asst. Attorney General, Gerald A. Engler, Senior Asst. Attorney General, Stan Helfman, Supervising Deputy Attorney General, Sharon G. Birenbaum, Deputy Attorney General.

People v. Carrington, No. S043628

Conviction and death sentence for first degree murder and other crimes are affirmed where: 1) the court did not err in denying defendant's motion to suppress evidence as there was probable cause for issuance of a warrant and it was lawfully executed; 2) the court did not err in denying defendant's motion to suppress her confessions; 3) purported constitutional error in selecting the grand jury was not prejudicial, and the grand jury had jurisdiction to indict her; 4) venue for the trial was not improper; 5) the evidence was sufficient to support the conviction for robbery; 6) the court did not err in the various instructions it gave to the jury; 7) the court did not err in its rulings related to the aggravating factor of attempted escape; 8) there was no error in admitting victim impact evidence and in not giving a limiting instruction on victim impact evidence; and 9) California's death penalty statute does not violate the state or federal constitutions. Certain burglary convictions are reversed as the evidence did not establish an entry.    

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Appellate Information
Appeal from San Mateo County Super. Ct. No. SC29739.
Filed July 27, 2009

Judges
Before: BAXTER, J., GEORGE, C.J., WERDEGAR, J., CHIN, J., MORENO, J., CORRIGAN, J., KENNARD, J.
Opinion by GEORGE, C.J.

Counsel
For Appellant: Lynne S. Coffin and Michael J. Hersek, State Public Defenders, under appointment by the Supreme Court, Barry P. Helft, Chief Deputy State Public Defender, and Kathryn E. Collier, Deputy State Public Defender.

For Respondent: Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Bruce Ortega and Amy Haddix, Deputy Attorneys General.

Porter v. Superior Court of Monterey County, No. S152273

Court of Appeals' issuance of a peremptory writ of mandate directing the trial court to dismiss premeditation and gang enhancement allegations is reversed where: 1) trial court order setting aside the allegations for a new trial cannot be construed as an express or implied acquittal triggering constitutional double jeopardy protections; 2) plaintiff's conviction of the underlying attempted murder offenses did not bar retrial of the allegations under Penal Code sec. 1181; and 3) the scope of the retrial may be limited to penalty allegations as penalty allegations are not elements of an offense under California law.    

Porter v. Superior Court of Monterey County, No. S152273 in PDF

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Appellate Information
Appeal from Monterey County Super. Ct. No. SS042332A.
Filed July 23, 2009

Judges
Before BAXTER, J., GEORGE, C.J., WERDEGAR, J., CHIN, J., MORENO, J., CORRIGAN, J., KENNARD, J.
Opinion by CORRIGAN, J.
Concurring Opinion by KENNARD, J.

Counsel
For Appellant: J. Courtney Shevelson, under appointment by the Supreme Court; Glenn A. Nolte, Acting Public Defender, James S. Egar, Public Defender, and Romano Clark, Deputy Public Defender.
For Real Party in Interest: Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan, Seth K. Schalit and William Kuimelis, Deputy Attorneys General.

People v. Anderson, No. S152695

Conviction for kidnapping is affirmed where: 1) constitutional double jeopardy principles did not bar retrial of the factual sentencing allegation of kidnapping on which defendant's first jury deadlocked as the mistrial due to jury deadlock was not an event that terminated jeopardy on the allegation; 2) defendant's retrial of the factual sentencing allegation of kidnapping did not violate California's statutory provision against double jeopardy as the allegation on which defendant's first jury deadlocked was not a greater offense that incorporated the underlying lewd act crime as a lesser included offense under California law; and 3) retrial of a penalty allegation may be limited to the deadlocked allegation alone.    

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Appellate Information
Appeal from the Sacramento County Super. Ct. No. 03F00398.
Filed July 23, 2009

Judges
Before BAXTER, J., GEORGE, C.J., WERDEGAR, J., CHIN, J., MORENO, J., CORRIGAN, J., KENNARD, J.
Opinion by CORRIGAN, J.
Concurring Opinion by MORENO, J.

Counsel
For Plaintiff: Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Mary Jo Graves and Michael P. Farrell, Assistant Attorneys General, Janet E. Neeley, Charles A. French and Brook A. Bennigson, Deputy Attorneys General.
For Defendant: Kat Kozik, under appointment by the Supreme Court.

Palmer/Sixth Street Properties, L.P. v. City of LA, No. B206102

Trial court order precluding defendant from enforcing an affordable housing ordinance against a mixed use project that is being developed by plaintiff is affirmed where the affordable housing ordinance in question conflicts with, and is preempted by, the vacancy decontrol provisions of the Costa-Hawkins Rental Housing Act.          

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Appellate Information
APPEAL from a judgment of the Superior Court of Los Angeles County, Dzintra Janavs, Judge. Affirmed.
SECOND APPELLATE DISTRICT, DIVISION FOUR
Filed July 22, 2009

Judges
Before SUZUKAWA, J., WILLHITE, Acting P.J., MANELLA, J.
Opinion by SUZUKAWA, J.

Counsel
For Plaintiff: Costell & Cornelius Law Corporation, Jeffrey Lee Costell, Alexandre Ian Cornelius, Mitchell E. Rishe, and Sean M. Cronin
For Defendant: Rockard J. Delgadillo, City Attorney, Jeri L. Burge, Assistant City Attorney, Tayo A. Popoola and Michael L. Bostrom, Deputy City Attorneys.

Petition by writ of mandate seeking to vacate an order disqualifying plaintiff from serving as attorneys for any party in the probate action pending before the trial court is granted where the court erred in finding that the law firm had a conflict of interest in representing both the executor and the beneficiary under the circumstances presented.          

Read Baker Manock & Jensen v. Superior Court of Fresno County, No. F056973 in PDF

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Appellate Information
ORIGINAL PROCEEDING; petition for writ of mandate. Debra J. Kazanjian, Judge.
FIFTH APPELLATE DISTRICT
Filed July 22, 2009

Judges
Before VARTABEDIAN, Acting P.J., HILL, J., KANE, J.
Opinion by VARTABEDIAN, Acting P.J.

Counsel
For Petitioner: Robie & Matthai, Edith R. Matthai and Steven S. Fleischman.
For Real Party in Interest: Chielpegian Law Offices, Elliott D. Chielpegian, Michael S. Chielpegian and Lee S. W. Cobb.

Raining Data Corp. v. Barrenechea, No. G040902

In an action for misappropriation of trade secrets, trial court orders are affirmed where: 1) the court properly granted plaintiff's anti-SLAPP motion as plaintiff met its burden of demonstrating the acts underlying the cross-complaint arose from protected activity and defendant failed to show a probability of prevailing on the cross-claim; and 2) the trial court did not abuse its discretion in the amount of attorney's fees awarded as the fees incurred were reasonable and not manifestly excessive.    

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Appellate Information
Appeal from orders of the Superior Court of Orange County, Corey S. Cramin, Judge. Affirmed.
FOURTH APPELLATE DISTRICT, DIVISION THREE
Filed June 29, 2009
Published July 21, 2009

Judges
Before FYBEL, J., BEDSWORTH, ACTING P.J., ARONSON, J.
Opinion by FYBEL, J.

Counsel
For Plaintiff: Wilson, Sonsini, Goodrich & Rosati, Ulrico S. Rosales and Michael J. Nader.
For Defendant: The Walker Law Firm, Joseph A. Walker and Jason Matthew Lamb.

People v. Indiana Lumbermens Mut. Ins. Co., No. B208691

Order denying defendant's motion to vacate summary judgment and forfeiture and exonerate bond is reversed where: 1) it was sufficient that a defendant was surrendered to custody outside the county in the underlying case within the 180-day period; and 2) the summary judgment was void as the defendant was surrendered to custody within 180 days and thus the court lacked jurisdiction to enter summary judgment on the forfeited bond.    

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Appellate Information
APPEAL from an order of the Superior Court of Los Angeles County, Richard S. Kemalyan, Judge. Reversed with directions.
SECOND APPELLATE DISTRICT, DIVISION THREE
Filed July 21, 2009

Judges
Before KLEIN, P.J., ALDRICH, J., CROSKY, J.
Opinion by KLEIN, P.J.

Counsel
For Plaintiff: Raymond G. Fortner, Jr., County Counsel, Jason C. Carnevale, Deputy County Counsel.
For Defendant: Nunez & Bernstein and E. Alan Nunez.

Abbott Laboratories v. Franchise Tax Board, No. B204210

Order sustaining defendant's demurrer to plaintiff's action for a tax refund is affirmed where writing or reforming Revenue and Taxation Code sec. 24402 to sever its invalid portion would not be consistent with the enacting legislature's intent and would contradict the purpose of its enactment, and therefore would be inappropriate for the present court to rewrite or reform.    

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Appellate Information
APPEAL from a judgment of the Superior Court of Los Angeles County, Irving S. Feffer, Judge. Affirmed.
SECOND APPELLATE DISTRICT, DIVISION THREE
Filed July 21, 2009

Judges
Before KITCHING J., KLEIN, P.J., ALDRICH, J.
Opinion by KITCHING J.

Counsel
For Plaintiff: Baker & McKenzie, J. Pat Powers, Tod L. Gamlen, Jerry Salcido and Scott L. Brandman.
For Defendant: Edmund G. Brown, Jr., Attorney General, Felix E. Leatherwood and Brian D. Wesley, Deputy Attorneys General.

People v. Wagner, No. E047167

Trial court order dismissing the case against defendant is affirmed where: 1) trial court did not abuse its discretion in denying the request to continue the case beyond the time limit set forth in Penal Code sec. 1382 after finding no courtroom available in which to try the matter, and there was nothing in the record to support the People's claim that the court congestion was caused by the trial court's mismanagement or administrative policy; and 2) the People are foreclosed from refiling the charges in this case under Penal Code sec. 1238 (a)(8).    

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Appellate Information
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Affirmed.
FOURTH APPELLATE DISTRICT, DIVISION TWO
Filed July 21, 2009

Judges
Before RICHLI, Acting P.J., GAUT, J., MILLER, J.
Opinion by RICHLI, Acting P.J.

Counsel
For Plaintiff: Rod Pacheco, District Attorney, and Alan D. Tate, Deputy District Attorney
For Defendant: Stephen S. Buckley, under appointment by the Court of Appeal.

In an environmental dispute involving the development of residential properties, trial court judgment is affirmed where: 1) the court did not err in refusing to grant plaintiff's writ petition seeking to force defendant to set aside a resolution determining that plaintiff was not a qualified conservation entity and enter a new resolution; 2) the court properly granted summary judgment on plaintiff's causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing against certain defendants; and 3) the court properly awarded those defendants attorney's fees and costs as plaintiffs failed to demonstrate they were entitled to reversal of the judgment.    

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Appellate Information
APPEAL from the Superior Court of San Bernardino County. Thomas A. Peterson, Barry L. Plotkin, and Ben T. Kayashima, Judges. Affirmed.
FOURTH APPELLATE DISTRICT, DIVISION TWO
Filed July 21, 2009

Judges
Before MILLER, J., RAMIREZ, P.J., McKINSTER, J.
Opinion by MILLER, J.

Counsel
For Plaintiff: The Law Office of Craig A. Sherman and Craig A. Sherman.
For Defendant: Richards, Watson & Gershon, Mitchell E. Abbott and Ginetta L. Giovinco.

People v. Friend, No. S027264

Conviction for first degree murder and robbery and sentence of death is affirmed where: 1) the prosecutor did not commit prosecutorial misconduct, and any misconduct that did occur was harmless in light of the evidence of defendant's guilt; 2) defendant failed to show that the testimonies of certain witnesses were unreliable, and thus properly admitted the testimonies; 3) the court did not err in allowing the prosecutor to present the testimony of one of the witnesses' attorneys in rebuttal; 4) defendant was not denied effective assistance of counsel; and 5) defendant's other claims of error in the trial phase are without merit. At defendant's second trial: 1) the court did not err in excusing prospective jurors based on their views concerning the death penalty; 2) the prosecutor did not commit misconduct; 3) the trial court did not err in determining that a witness was unavailable as a witness and admitting his testimony from the first trial; 4) the court did not err in the instructions it did and did not give to the jury; 5) during the penalty phase, the prosecutor did not commit misconduct and there was no error in the admission of challenged evidence; and 6) California's death penalty statute does not violate the state or federal constitution.    

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Appellate Information
APPEAL from Alameda County Super. Ct. No. 81254 A
Filed July 20, 2009

Judges
Before BAXTER, J., GEORGE, C.J., WERDEGAR, J., CHIN, J., MORENO, J., CORRIGAN, J., KENNARD, J.
Opinion by BAXTER, J.

Counsel
For Plaintiff: Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Gerald A. Engler, Assistant Attorney General, Bruce Ortega, Glenn R. Pruden and Gregg E. Zywicke, Deputy Attorneys General.
For Defendant: Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Denise Anton and Evan Young, Deputy State Public Defenders.

Laabs v. Southern California Edison Co., No. E044917

In a negligence action, trial court judgment is affirmed in part and reversed in part where the evidence did not establish that defendant did not have a duty to plaintiff a as a matter of law, and triable issues of fact remained as to defendant's duty as a public utility and its exercise of control in determining the placement of the light poles.   

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Appellate Information
APPEAL from the Superior Court of San Bernardino County. Kurt J. Lewin (retired judge of the L.A. Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and Tom Garza, Judges. Affirmed in part and reversed in part.
FOURTH APPELLATE DISTRICT, DIVISION TWO
Filed July 20, 2009

Judges
Before King, J., Miller, J., Hollenhorst, J.
Opinion by King, J.
Concurring and Dissenting Opinion by Hollenhorst, J.

Counsel
For Plaintiff: Lascher & Lascher, Wendy Lascher, Aris Karakalos; Richard Harris Law Firm and Richard Harris
For Respondent: Brian A. Cardoza.

Diaz v. LA County Metro. Transportation Authority, No. B206259

In a negligence action, trial court judgment for defendant is reversed where the court erred in refusing to give a res ipsa loquitur  instruction to the jury, as defendant is a common carrier and substantial evidence supported a conclusion that plaintiff's injury was the result of defendant's operation of the bus.    

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Appellate Information
APPEAL from a judgment of the Superior Court of Los Angeles County, Stanley M. Weisberg, Judge. Reversed and remanded.
SECOND APPELLATE DISTRICT, DIVISION SEVEN
Filed July 20, 2009

Judges
Before PERLUSS, P.J., ZELON, J., JACKSON, J.
Opinion by PERLUSS, P.J.

Counsel
For Plaintiff: Marlon M. Alo
For Defendant: O'Reilly & McDermott and Paul O'Reilly; Greines, Martin, Stein & Richland, Martin Stein and Carolyn Oill.

Trial court's issuance of writ of mandate holding that the internal policy memorandum regarding the enforcement of California Code of Regulations title 14, sec. 43 prohibiting nudity in California state parks constitutes a regulation is reversed, where the memorandum in question was adopted without substantially complying with the requirements of the Administrative Procedure Act and is thus an unenforceable underground regulation. 

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Appellate Information
Appeal from an order of the Superior Court of Orange County, Sheila Fell, Judge. Reversed and remanded.
FOURTH APPELLATE DISTRICT, DIVISION THREE
Filed June 25, 2009
Published July 17, 2009

Judges
Before RYLAARSDAM, ACTING P.J., ARONSON, J., IKOLA, J.
Opinion by RYLAARSDAM, ACTING P.J.

Counsel
For Plaintiff: Law Office of Elva P. Kopacz and Elva P. Kopacz.

For Defendant: Edmund G. Brown, Jr., Attorney General, Mary E. Hackenbracht, Assistant Attorney General, Carol A. Squire and Deborah Fletcher, Deputy Attorneys General.

Bosetti v. US Life Ins. Co. in the City of New York, No. B206896

In a dispute involving disability insurance benefits, district court's judgment is affirmed in part and reversed in part where: 1) the court properly awarded summary judgment to plaintiff's former employer, as plaintiff did not demonstrate she had a reasonable cause for complaint against the employer; and 2) the court erred in granting summary judgment on the breach of contract and declaratory relief causes of action against defendant, as plaintiff raised a triable issue of fact as to whether she was entitled to extended disability payments. Defendant is entitled to summary adjudication of plaintiff's causes of action for bad faith, intentional misrepresentation, and intentional infliction of emotional distress, as well as her claim for punitive damages. 

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Appellate Information
APPEAL from judgments and order of the Superior Court of Los Angeles County, Michael C. Solner, Judge. In No. B206896, appeal as to one defendant is dismissed and, as to another defendant, the judgment is reversed with directions. In No. B208835, the judgment and order are affirmed with directions.
SECOND APPELLATE DISTRICT, DIVISION THREE
Filed July 17, 2009

Judges
Before CROSKEY, J., KLEIN, P.J., ALDRICH, J.
Opinion by CROSKEY, J.

Counsel
For Plaintiff: Tyron J. Sheppard.

For Defendant: Wilson, Elser, Moskowitz, Edelman & Dicker, Adrienne Publicover, Michael K. Brisbin and Charan M. Higbee.

People v. Martin, No. E046579

Sentence for resisting an executive officer is affirmed where the trial court properly imposed the domestic violence conditions of probation, as the court was not barred by Harvey from imposing them, they were fitting and proper for defendant's rehabilitation, and were reasonably related to defendant's future criminality. 

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Appellate Information
APPEAL from the Superior Court of San Bernardino County. John N. Martin, Judge. Affirmed.
FOURTH APPELLATE DISTRICT, DIVISION TWO
Filed June 24, 2009
Published July 17, 2009

Judges
Before HOLLENHORST, Acting P.J., MCKINSTER, J., GAUT, J.
Opinion by HOLLENHORST, Acting P.J.

Counsel
For Plaintiff: Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Dane R. Gillette, Assistant Attorney General, and Lynne McGinnis and Kelley Johnson, Deputy Attorneys General

For Defendant: Conrad Herring, under appointment by the Court of Appeal.

In re T.M., No. C059898

Juvenile court order terminating parental rights is reversed where no opportunity to reunify was ever afforded to the child's mother, nor did she have an opportunity to challenge a request to deny her services. 

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Appellate Information
APPEAL from a judgment of the Superior Court of Sacramento County, Dean L. Petersen, Juvenile Court Referee. Reversed with directions.
THIRD APPELLATE DISTRICT
Filed July 17, 2009

Judges
Before CANTIL-SAKAUYE, J., BLEASE, Acting P.J., ROBIE, J.
Opinion by CANTIL-SAKAUYE, J.

Counsel
For Plaintiff: Robert A. Ryan, Jr., County Counsel, Lilly C. Frawley, Deputy County Counsel.

For Defendant: Elaine Forrester, under appointment by the Court of Appeal.

People v. Bramit, No. S064415

Conviction for first degree murder and other crimes and sentence to death is affirmed where: 1) a decision to excuse a prospective juror for cause was supported by substantial evidence; 2) the court did not err in its instruction to the jury on premeditated murder and felony murder; 3) the court did not err in admitting evidence of defendant's prior violent juvenile misconduct; 3) the court did not err in the admission of testimony from the victims' and testimony from victims of defendant's uncharged bank robberies; 4) the defendant failed to prove prosecutorial misconduct; 5) a jury instruction on victim impact evidence was proper and the court had no sua sponte duty to give defendant's requested instructions on the matter; and 6) the court did not err in its instruction on the governor's commutation power and in two pattern instructions it gave regarding the penalty decision.    

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Appellate Information
Appeal from Riverside County Super. Ct. No. CR 57524
Filed July 16, 2009

Judges
Before BAXTER, J., GEORGE, C.J., WERDEGAR, J., CHIN, J., MORENO, J., CORRIGAN, J., KENNARD, J.
Opinion by CORRIGAN, J.
Concurring Opinion by MORENO, J.

Counsel
For Plaintiff: Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Gil P. Gonzalez, Deputy Attorneys General.

For Defendant: Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Peter R. Silten, Deputy State Public Defender.

People v. Lewis, No. S069959

Conviction for first degree murder and other crimes and sentence to death is affirmed where: 1) the trial court did not abuse its discretion in allowing the admission of postmortem photographs of the victim and in the admission of evidence of defendant's prior rape; 2) the evidence presented at trial was sufficient to support the conviction and the finding of the special circumstance that the murder was committed during the commission of a rape; 3) the court did not err in its jury instructions related to defendant's prior rape, or in declining to instruct the jury that the prosecution was required to prove that he harbored the intent to rape her while she was alive; 4) the court's failure to dismiss a juror based on a conversation the juror had outside the courtroom did not violate defendant's right to an impartial jury; 5) the court did not abuse its discretion in declining to grant defendant a continuance of one day; 6) the court did not err in the disputed instructions it did and did not give to the jury during the penalty phase of the trial; and 7) California's death penalty statute does not violate the state or federal constitution.    

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Appellate Information
Appeal from Riverside County Super. Ct. No. CR 45541.
Filed July 16, 2009

Judges
Before BAXTER, J., GEORGE, C.J., WERDEGAR, J., CHIN, J., MORENO, J., CORRIGAN, J., KENNARD, J.
Opinion by GEORGE, C.J.

Counsel
For Plaintiff: Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Mary Jo Graves, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, William M. Wood, Holly D. Wilkens and Peter Quon, Jr., Deputy Attorneys General.

For Defendant: Tara K. Hoveland, under appointment by the Supreme Court.

Azure Ltd. v. I-Flow Corp., No. S164884

Court of Appeals judgment is affirmed where a corporation is entitled to immunity under the Unclaimed Property Law only if it complies with the Law, and thus does not immunize corporations like defendant who allegedly transfer nonescheated shares to the state without giving the required notice.    

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Appellate Information
Appeal from Orange County Super. Ct. No. 06CC07434.
Filed July 16, 2009

Judges
Before BAXTER, J., GEORGE, C.J., WERDEGAR, J., CHIN, J., MORENO, J., CORRIGAN, J., KENNARD, J.
Opinion by CHIN, J.
Dissenting Opinion by MORENO, J.

Counsel
For Appellant: Shapiro, Rodarte & Forman, Carl W. Shapiro, Theresa Z. Youhanaie, Leora D. Freedman and Thomas W. Foote.

For Respondent: Gibson, Dunn & Crutcher, Jeffrey H. Reeves, J. Scot Kennedy, John N. Carter and Julian W. Poon.

Yeager v. Blue Cross of California, No. B207571

In an action for unfair competition and false advertising involving a group health care plan, trial court's grant of summary judgment for defendant is affirmed where: 1) defendant complied with the duty to offer coverage for treatment of infertility in its group health plan under Health and Safety Code sec. 1374.55, as it offered such coverage  and it was the employer that declined to buy; and 2) plaintiff's argument that defendant must cover the entire cost of her infertility treatment to comply with the statute has no support in the statute's language.    

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Appellate Information
APPEAL from a judgment of the Superior Court of Los Angeles County. Victoria G. Chaney, Judge. Affirmed.
SECOND APPELLATE DISTRICT, DIVISION EIGHT
Filed: July 15, 2009

Judges
Opinion by RUBIN, ACTING P.J., FLIER, J., BIGELOW, J.
Opinion by RUBIN, ACTING P.J.

Counsel
For Plaintiff: Selman Breitman, Mark F. Didak, Neil H. Selman and Craig R. Breitman.

For Defendant: Reed Smith, Margaret M. Grignon, Kurt C. Peterson, Kenneth N. Smersfelt, Zareh Jaltorossian and Eric C. Schaffer.

Trial court judgment denying plaintiff's request for declaratory relief to invalidate a decision by the California Unemployment Insurance Appeals Board is affirmed where the court correctly denied the request to remove the precedential status of the Board's decision assessing unemployment insurance employer contributions and penalties against a particular employer, as the judgment was not contrary to law nor an incorrect application of Supreme Court authority.    

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Appellate Information
APPEAL from a judgment of the Superior Court of San Diego County, Richard E.L. Strauss, Judge. Affirmed; request for judicial notice denied..
FOURTH APPELLATE DISTRICT, DIVISION ONE
Filed: July 15, 2009

Judges
Opinion by HUFFMAN, Acting P.J., McDONALD, J., O'ROURKe J.
Opinion by HUFFMAN, Acting P.J.

Counsel
For Plaintiff: Littler Mendelson, Robert G. Hulteng and William Hays Weissman.

For Defendant: Edmund G. Brown, Jr., Attorney General, William L. Carter, Steven J. Green and Leslie Branman Smith, Deputy Attorneys General

Thomas v. Miller, No. H032249

Conviction for assault with a deadly weapon by a person serving a life term and attempted murder is reversed and remanded for retrial where: 1) the trial court abused its discretion by denying defendant's motion to be unshackled during trial as the record does not show defendant's violence, threat of violence, or other nonconforming conduct, and it cannot be said beyond a reasonable doubt that the restraints placed on defendant had no prejudicial effect on his ability to participate at trial or the jury's perception of him; and 2) the evidence was insufficient to support his conviction for assault with a deadly weapon by a person serving a life term.   

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Appellate Information
Appeal from Monterey County Super. Ct. No. SS031302.
SIXTH APPELLATE DISTRICT
Filed: July 15, 2009

Judges
Before Premo, J., Rushing, P.J., Elia, J.
Opinion by Premo, J.

Counsel
For Plaintiff: Edmund G. Brown Jr., Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, David M. Baskind, Deputy Attorney General

For Defendant: William M. Robinson, under appointment by the Court of Appeal.

People v. Osborne, No. A121195

Conviction for drug crimes and firearms possession is affirmed where the trial court did not err in denying defendant's motion to suppress as: 1) the initial detention of defendant was reasonable; 2) a patsearch of defendant was supported by a reasonable suspicion that he was armed and dangerous; 3) handcuffing defendant did not constitute a de facto arrest; and 4) the search of the passenger compartment of defendant's car was reasonable under the Fourth Amendment.   

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Appellate Information
APPEAL from a judgment of the Contra Costa County Super. Ct. No. 050713651.
FIRST APPELLATE DISTRICT, DIVISION FOUR
Filed July 14, 2009

Judges
Before Sepulveda, J., Ruvolo, P.J., Reardon, J.
Opinion by Sepulveda, J.

Counsel
For Plaintiff: Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Sharon Wooden and John H. Deist, Deputy Attorneys General.

For Defendant: Clifford Stanley under appointment by the First District Appellate Project.

People v. Fields, No. D053080

Trial court judgment finding that defendant was a sexually violent predator and committing him to the Department of Mental Health for an indeterminate term is affirmed where trial court did not err in preventing defense counsel from cross-examining the state's experts about the extent to which they considered results of a polygraph examination that was administered to defendant, as there was no reasonable probability that the jury would have reached a different result if the court had permitted defense counsel to inquire further of the experts about the polygraph examination report.   

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Appellate Information
APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Affirmed.
FOURTH APPELLATE DISTRICT, DIVISION ONE
Filed July 14, 2009

Judges
Before AARON, J., NARES, Acting P.J., HALLER, J.
Opinion by AARON, J.

Counsel
For Plaintiff: Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Donald W. Ostertag, Deputy Attorneys General.

For Defendant: Chris Truax, under appointment by the Court of Appeal.

People v. Blount, No. D052147

Sentence for felony child neglect and inflicting great bodily injury on a child under the age of five years in the commission of a felony or attempted felony is affirmed where the trial court was correct that it could not impose a sentence other than the stipulated term agreed to by the parties, as its discretion to impose a sentence both at the initial sentencing hearing and upon a recall of the sentence under Penal Code sec. 1170 was defined by the terms of the plea.    

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Appellate Information
APPEAL from a judgment of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Affirmed.
FIRST APPELLATE DISTRICT, DIVISION FOUR
Filed July 14, 2009

Judges
Before IRION, J., BENKE, Acting P.J., HUFFMAN, J.
Opinion by IRION, J.

Counsel
For Plaintiff: Edmund G. Brown, Jr., Attorney General; Gary W. Schons, Assistant Attorney General; Peter Quon, Jr., and Marvin E. Mizell, Deputy Attorneys General.

For Defendant: Charles R. Khoury, Jr., under appointment by the Court of Appeal.

In re H.C., No. H033669

Trial court's probation order is amended and reversed in part where: 1) a condition that the minor not associate with any known probationer, parolee, or gang member is rephrased; and 2) a condition that the minor not frequent any areas of gang related activity and not participate in any gang activity is reversed and remanded to allow the trial court to more closely tailor the condition and fashion a more precise order.   

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Appellate Information
APPEAL from a judgment of the Santa Clara County Superior Court No.: JV34973.
SIXTH APPELLATE DISTRICT
Filed July 14, 2009

Judges
Before RUSHING, P.J., PREMO, J., ELIA, J.
Opinion by RUSHING, P.J.

Counsel
For Plaintiff: Edmund G. Brown, Jr., Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Martin S. Kaye, Supervising Deputy Attorney General.

For Defendant: Marsanne Weese, under appointment by the Court of Appeal.

Branner v. Regents of the Univ. of California, No. C061476

Appeal of a trial court order granting in part and denying in part defendants' special motion to strike plaintiff's race and age discrimination claims is dismissed where: 1) plaintiff's notice of appeal was untimely filed under California Rules of Court 8.104(a), and his motion to reconsider both failed to comply with the procedural requirements of Code of Civ. Pro. sec. 1008 (a) and was invalid as it did not contain an affidavit or declaration in support of the motion; 2) defendant's cross-appeal is untimely and must be dismissed; and 3) the order denying plaintiff's motion for reconsideration was not appealable.   

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Appellate Information
APPEAL from a judgment of the Superior Court of Yolo County, Doris L. Shockley, Judge. Dismissed.
THIRD APPELLATE DISTRICT
Filed July 14, 2009

Judges
Before SIMS, Acting P.J., RAYE, J., CANTIL-SAKAUYE, J.
Opinion by the Court

Counsel
For Plaintiff: Mary-Alice Coleman.

For Defendant: Michael T. Lucey, George A. Acero and Gordon & Rees

In re T.S., No. C059718

Juvenile court order terminating parental rights is affirmed where the court did not abuse its discretion in declining to find an exception to termination of parental rights based on the minor's tribe identification of guardianship as the permanent plan for the minor, as the court is not obligated to adopt the permanent plan designated by a child's tribe without conducting an independent assessment of detriment, and there were no appropriate families that were willing to assume guardianship of the minor.    

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Appellate Information
APPEAL from a judgment of the Superior Court of Sacramento County, Scott P. Harman, Judge. Affirmed.
THIRD APPELLATE DISTRICT
Filed July 14, 2009

Judges
Before SIMS, Acting P.J., RAYE, J., CANTIL-SAKAUYE, J.
Opinion by SIMS, Acting P.J.

Counsel
For Plaintiff: Robert A. Ryan, Jr., County Counsel, and Scott M. Fera, Deputy County Counsel.

For Defendant: Nicole Williams, under appointment by the Court of Appeal.

People v. Hudson, No. C059154

A conviction for kidnapping and false imprisonment is affirmed where the trial court did not err in instructing the jury with CALCRIM No. 318 as the instructions did not lessen the prosecution's burden of proof by elevating out-of-court statements to unquestionable reliability.   

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Appellate Information
APPEAL from a judgment of the Superior Court of Shasta County, Steven E. Jahr, Judge. Affirmed.
THIRD APPELLATE DISTRICT
Filed July 14, 2009

Judges
Before SIMS, J., SCOTLAND, P.J., RAYE, J.
Opinion by SIMS, J.

Counsel
For Plaintiff: Edmund G. Brown Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Brook Benningson, Deputy Attorneys General. 

For Defendant: Richard D. Miggins, under appointment by the Court of Appeal.

Turner v. Schultze, No. A121642

Trial court judgment awarding defendant attorney's fees is affirmed where the present action between the parties was on the contract under Civil Code sec. 1717 for purposes of an award of attorney fees, and even if plaintiff prevails on some or all of his claims in the course of arbitration in the other action between the parties, it would not be in derogation of defendants' independent right to attorney's fees in the present action.    

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Appellate Information
APPEAL from San Francisco County Super. Ct. No. CGC-05-445009.
FIRST APPELLATE DISTRICT, DIVISION FOUR
Filed July 13, 2009

Judges
Before: RIVERA, J., RUVOLO, P.J., REARDON, J.
Opinion by RIVERA, J.

Counsel
For Appellant: Adam S. Gruen, Law Offices of Adam S. Gruen.

For Respondent: Glenn P. Walling, Law Offices of Glenn P. Walling; Michael P. Verna, David W. Trotter, Bowles & Verna.

 

 

In re R.M., No. B210077

Juvenile court judgment ordering children removed from their mother's custody and placing them in separate foster homes is reversed where the evidence was insufficient to show that the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness as a result of the failure or inability of mother to adequately supervise or protect the child.    

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Appellate Information
APPEAL from orders of the Superior Court of Los Angeles County. Marilyn Mordetzky, Juvenile Court Referee. Reversed and remanded with directions.
SECOND APPELLATE DISTRICT, DIVISION ONE
Filed July 13, 2009

Judges
Before: ROTHSCHILD, J., MALLANO, P.J., WEISBERG, J.
Opinion by ROTHSCHILD, J.

Counsel
For Plaintiff: Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel.

For Defendant: Judy Weissberg-Ortiz, under appointment by the Court of Appeal.

People v. Traylor, No. S157820

Court of appeal's judgment holding that a prior dismissal of a felony complaint against defendant barred his current prosecution for the same conduct as a misdemeanor is reversed where the filing and dismissal of the originally charged felony for vehicular manslaughter with gross negligence, followed in immediate succession by the filing of the lesser misdemeanor charge of vehicular manslaughter with ordinary negligence, did not constitute successive filings for the same offense and thus Penal Code sec. 1387(a) did not preclude the People from proceeding on the misdemeanor complaint.   

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Appellate Information
Appeal from Nevada County Super. Ct. No. M05-0569.
Filed July 13, 2009

Judges
Before: BAXTER, J., GEORGE, C.J., KENNARD, J., WERDEGAR, J., CHIN, J., MORENO, J., CORRIGAN, J.
Opinion by BAXTER, J.

Counsel
For Appellant: Michael W. Ferguson and Clifford H. Newell, District Attorneys, and David M. Walters, Deputy District Attorney.

For Respondent: Thomas M. Anderson, Public Defender, and Daniel M. Geffner, Deputy Public Defender.

People v. Hernandez, No. A119501

Conviction for assault with a deadly weapon and by force likely to produce great bodily injury is reversed where the trial court abused its discretion by authorizing a uniformed and armed deputy sheriff to stand or sit behind defendant during his testimony based on: 1) the court's failure to inquire whether defendant posed any danger to courtroom security; 2) the absence of a showing defendant presented such a danger; 3) the likelihood that the challenged procedure prejudiced defendant in juror's eyes; and 4) the refusal to give a cautionary instruction that might have diminished the possibility that the jury would infer from the deployment of the armed guard that defendant was dangerous and untrustworthy.    

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Appellate Information
Appeal from Contra Costa County Super. Ct. No. 050707604.
FIRST APPELLATE DISTRICT, DIVISION TWO.
Filed: July 10, 2009

Judges
Before Kline, P.J., Richman, J., Haerle, J.
Opinion by Kline, P.J.
Dissenting opinion by Haerle, J.

Counsel
For Appellant: Gail E. Chesney, by Appointment of the Court of Appeal.

For Appellee: Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Asst. Atty. General, Gerald A. Engler, Senior Asst. Atty. General, Rene A. Chacon, Supervising Dep. Atty. Gen., Joan Killeen, Deputy Attorney General.

People v. McNeal, No. S157565

Court of Appeals judgment is affirmed where evidence about partition ratio variability is relevant in generic DUI cases to rebut the presumption of intoxication in Vehicle Code sec. 23610 and support an inference that the defendant was not under the influence, but may not be used to negate the basic fact triggering the Vehicle Code sec. 23610 presumption and thereby defeat operation of the presumption itself. Conviction for driving under the influence is affirmed where: 1) although defendant was prevented from introducing evidence about partition ratio variability, the error was harmless, as there was significant evidence of his intoxication; and 2) the jury's verdict indicated that the admission of partition ratio evidence was not reasonably likely to have produced a more favorable result. 

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Appellate Information
Appeal from San Bernardino County Super. Ct. No. TRE038083.
Filed July 9, 2009

Judges
Before CORRIGAN, J. WE CONCUR: GEORGE, C. J., KENNARD, J., BAXTER, J., WERDEGAR, J., CHIN, J., MORENO, J.
Opinion by CORRIGAN, J.

Counsel
For Appellant: Michael A. Ramos, District Attorney, Mark A. Vos, Lead Deputy District Attorney, and Astrid G. Alfonso, Deputy District Attorney.

For Defendannt: Jamie L. Popper, under appointment by the Supreme Court, and Linn Davis, under appointment by the Court of Appeal.

Fontaine v. Superior Court of Santa Clara County, No. H033811

Peremptory writ vacating the trial court's order granting defendant Vargas' motion to transfer the action to Orange County Superior Court is granted where plaintiff's action arises from a consumer transaction specified in the statutory venue exception of Code of Civil Procedure sec. 395 (b) and thus venue is proper in the court of the county of his residence.   

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Appellate Information
APPEAL from Santa Clara County Superior Court Superior Court.
SIXTH APPELLATE DISTRICT
Filed June 10, 2009
PUBLISHED July 7, 2009

Judges
Before: BAMATTRE-MANOUKIAN, ACTING P.J., MIHARA, J., MCADAMS, J.
Opinion by BAMATTRE-MANOUKIAN, ACTING P.J.

Counsel
For Petitioner: Frederick William Schwinn, Raeon R. Roulston, Consumer Law Center, Inc.

For Real Parties in Interest: Michael Raymond Williams, Finlayson, Augustini & Williams, LLP.

People v. Ramon, No. F054603

Conviction and sentence for receiving a stolen vehicle and firearms possession is reversed and remanded where: 1) the evidence was insufficient to support a support a Penal Code sec. 186.22(b)(1) sentence enhancement for committing the crimes for the benefit of a criminal street gang; and 2) the trial court erred in convicting defendant of both possession of a loaded firearm by a member of a criminal street gang and possession of a loaded firearm for which he was not the registered owner as they are both penalty provisions of Penal Code sec. 12031 (a)(1), and as defendant violated the statute only once be can be convicted of the crime only once.   

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Appellate Information
APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge.
FIFTH APPELLATE DISTRICT
Filed July 7, 2009

Judges
Before: CORNELL, J., LEVY, Acting P.J., GOMES, J.

Counsel
For Plaintiff: Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney
General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General.   

For Defendant: Thea Greenhalgh, under appointment by the Court of Appeal.

J.C. Penney Co. v. Workers' Comp. Appeals Bd., No. C059760

In a dispute involving the payment of disability indemnity, the decision and award of the Workers Compensation Appeals Board is annulled and remanded where: 1) part of the overpayment credit sought by plaintiff is barred by Labor Code sec. 4062 as the statute did not extend the permanent and stationary date until the time the agreed medical examiner rendered an opinion that the worker's condition was permanent and stationary; and 2) the record does not support an equitable bar to the overpayment credit.    

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Appellate Information
Petition for Writ of Review. Joseph S. Samuel, Workers' Compensation Administrative Law Judge. Decision and award annulled and remanded with directions.
THIRD APPELLATE DISTRICT
Filed July 7, 2009

Judges
Before: BUTZ, J., NICHOLSON, Acting P.J., HULL, J.

Counsel
For Petitioners: Mullen & Filippi, Gregory T. Jones.

For Respondent: Neil P. Sullivan; Metzinger and Associates, Ronald M. Metzinger

Clark v. American Residential Serv. LLC, No. B203476

Trial court order approving a settlement in a class action labor lawsuit is vacated where the trial court: 1) did not receive and consider the information required for an understanding of the amount in controversy and the realistic range of outcomes of the litigation; 2) thus lacked the sufficient basis to make the requisite independent assessment of the reasonableness of the terms of the settlement; and 3) the court abused its discretion in giving incentive awards to the named plaintiffs of the magnitude approved in the case, and in awarding costs greater than the maximum amount specified in the notice given to the class.    

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Appellate Information
APPEAL from an order of the Superior Court for the County of Los Angeles. Mark V. Mooney, Judge. Reversed and remanded. 
SECOND APPELLATE DISTRICT, DIVISION EIGHT
Filed July 6, 2009

Judges
Before BAUER, J., RUBIN, Acting P.J., FLIER, J.
Opinion by BAUER, J.

Counsel
For Plaintiff: Law Office of Kevin T. Barnes, Kevin T. Barnes and Gregg Lander; Law Office of Joseph Antonelli, Joseph Antonelli and Janelle C. Carney.

For Defendant: Winston & Strawn, Lee T. Paterson, Amanda C. Sommerfeld and Emilie C. Woodhead.

People v. Eddie L., No. C059237

Juvenile court judgment sustaining defendant's count of robbery in the second degree and holding the maximum jurisdiction would be six years is affirmed where the plain meaning of Welfare and Institutions Code sec. 726 directs the juvenile court to impose the upper term of imprisonment, and thus the juvenile court did not err in selecting the upper term of five years for the robbery and adding one year for the arming enhancement.   

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Appellate Information
APPEAL from a judgment of the Superior Court of Sacramento County, Richard H. Gilmour, Judge. Reversed in part and affirmed in part.
THIRD APPELLATE DISTRICT
Filed July 2, 2009

Judges
Before SIMS, J., SCOTLAND, P.J., NICHOLSON, J.
Opinion by SIMS, J.

Counsel
For Plaintiff: Edmund G. Brown Jr., Attorney General, Dane R. Gillette and Michael P. Farrell, Assistant Attorneys General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General.

For Defendant: Michael Allen, under appointment by the Court of Appeal.

Trial court judgment awarding plaintiffs attorney's fees pursuant to the private attorney general doctrine set forth in Code of Civil Procedure sec. 1021.5 is affirmed where: 1) the litigation initiated by plaintiffs satisfied the necessity and financial burden requirements of the statute; 2) court did not abuse its discretion in finding that the litigation conferred a significant benefit to the environment and thus to the public at large; and 3) the court did not err in finding that although it had not granted the petition in all respects, plaintiffs prevailed on three significant issues and were therefore successful within the meaning of the statute.    

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Appellate Information
APPEAL from a judgment of the Superior Court of San Diego County, Michael M. Anello, Judge. Affirmed.
FOURTH APPELLATE DISTRICT, DIVISION ONE
Filed June 12, 2009
Published July 2, 2009

Judges
Before: HUFFMAN, Acting P.J., HALLER, J., AARON, J.
Opinion by HUFFMAN, Acting P.J.

Counsel
For Appellant: Allen, Matkins, Leck, Gamble & Natsis, Patrick E. Breen, Mark J. Hattam, and Kathryn D. Horning.

For Respondent: Everett L. DeLano.

People v. Farley, No. S024833

Conviction for first degree murder and other crimes and sentence to death is affirmed where: 1) the trial court did not err in denying defendant's motions for a change of venue and in its rulings on various challenges to the makeup of the jury; 2) the court did not err in denying several motions to suppress and in its evidentiary rulings, in various instructions it made to the jury, and in denying requested defense instructions; 3) the court did not err denying defendant access to data concerning his past employment and in prohibiting him from introducing evidence on that subject, and did not err in refusing to give proposed instructions on aggravating and mitigating circumstances; and 4) there is no merit to defendant's argument that the death penalty statute violates the United States Constitution. 

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Appellate Information
Santa Clara County Super. Ct. No. 123146
Filed: July 2, 2009

Judges
Before: BAXTER, J., GEORGE, C.J., WERDEGAR, J., CHIN, J., MORENO, J., CORRIGAN, J., NICHOLSON, J.
Opinion by GEORGE, C.J.

Counsel
For Appellant: Ezra Hendon, under appointment by the Supreme Court, and David L. Saine.

For Respondent: Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Ronald A. Bass and Gerald A. Engler, Assistant Attorneys General, Ronald S. Matthias, Nanette Winaker and Michael E. Banister, Deputy Attorneys General.

Hughes v. Pair, No. S157197

Court of Appeals judgment for defendant in a sexual harassment action is affirmed where: 1) plaintiff's factual allegations fail to establish the severe or pervasive conduct necessary to pursue a claim of hostile environment sexual harassment under Civil Code sec. 51.9, as the conduct was not so egregious as to alter the conditions of the underlying professional relationship and could not plausibly be construed by a reasonable trier of fact as a threat to commit a sexual assault on plaintiff; and 2) the court properly granted summary judgment on plaintiff's claim for intentional infliction of emotional distress as plaintiff failed to establish either extreme or outrageous conduct by defendant or that plaintiff suffered severe or extreme emotional distress. 

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Appellate Information
Los Angeles County Super. Ct. No. BC338385
Filed: July 2, 2009

Judges
Before: BAXTER, J., GEORGE, C.J., WERDEGAR, J., CHIN, J., MORENO, J., CORRIGAN, J., KENNARD, J.
Opinion by KENNARD, J.

Counsel
For Appellant: Hillel Chodos and Deborah Chodos

For Respondent: Knee, Ross & Silverman and Melanie C. Ross.

People v. Nguyen, No. S154847

Court of Appeals judgment is reversed where the absence of a constitutional or statutory right to jury trial under the juvenile law does not, under Apprendi, preclude the use of a prior juvenile adjudication of criminal misconduct to enhance the maximum sentence for a subsequent adult felony offense by the same person under California's Three Strikes law. 

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Appellate Information
Santa Clara County Super. Ct. No. CC476520
Filed: July 2, 2009

Judges
Before: BAXTER, J., GEORGE, C.J., WERDEGAR, J., CHIN, J., MORENO, J., CORRIGAN, J., KENNARD, J.
Opinion by BAXTER, J.
Dissenting Opinion by KENNARD, J.

Counsel
For Plaintiff: Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Gerald A. Engler, Assistant Attorney General, Donald E. de Nicola, Deputy State Solicitor General, René A. Chacón, Laurence K. Sullivan, Eric D. Share and Amy Haddix, Deputy Attorneys General.

For Defendant: Mary J. Greenwood, Public Defender, Seth Flagsberg, Deputy Public Defender; The Law Offices of Douglas L. Rappaport, Douglas L. Rappaport and Michelle M. Thomson.

People v. Johndrow, No. C055620

Trial court order committing defendant to the Department of Mental Health (DMH) for an indeterminate term following a jury's finding that he is a sexually violent predator is affirmed where: 1) the commitment to the DMH for an indeterminate term of custody does not violate defendant's due process rights as sexually violent predators are afforded a full panoply of due process protections under sections 6605 and 6608 before being committed; and 2) the commitment for an indeterminate term does not violate his equal protection rights as defendant has neither shown nor attempted to show that sexually violent predators are similarly situated with mentally disordered offenders and persons committed because they were found not guilty by reason of insanity.    

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Appellate Information
APPEAL from a judgment (order of commitment) of the Superior Court of Shasta County, Steven E. Jahr, Judge. Affirmed.
THIRD APPELLATE DISTRICT
Filed: July 1, 2009

Judges
Before RAYE, J., SIMS, Acting P.J., HULL, J.
Opinion by RAYE, J.

Counsel
For Plaintiff: Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General,  Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon, Supervising Deputy Attorney General, and Jeanne R. Wolfe, Deputy Attorney General.
For Defendant: Michael B. McPartland, under appointment by the Court of Appeal.

Scott v. Phoenix Schools, Inc., No. C058539

In an employment termination action, trial court judgment is affirmed in part and reversed in part where: 1) there was substantial evidence that defendant violated public policy in dismissing plaintiff; and 2) there was insufficient evidence of malice, fraud or oppression to support the award of punitive damages.   

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Appellate Information
APPEAL from a judgment of the Superior Court of Placer County, James D. Garbolino, Judge. Reversed in part and affirmed in part.
THIRD APPELLATE DISTRICT
Filed: June 30, 2009

Judges
Before BLEASE, Acting P.J., SIMS ,J., NICHOLSON, J.
Opinion by BLEASE, Acting P.J.

Counsel
For Plaintiff: Mary-Alice Coleman and James C. Ashworth.
For Defendant: Kronick, Moskovitz, Tiedemann & Girard, Bruce A. Scheidt, Kristianne T. Seargeant and Meredith Packer.

Martorana v. Marlin & Saltzman, No. B209863

Trial court judgment sustaining the demurrers of Class Counsel is affirmed where: 1) plaintiff is collaterally estopped from pursuing a malpractice claim against Class Counsel based on the theory that counsel breached their duty of care to the class by failing to negotiate a different settlement notice procedure than that approved by the trial court in the prior action; and 2) plaintiff's argument that Class Counsel breached their duty of care by failing to contact him specifically once they knew or should have known that he had not submitted a timely claim form fails, as there is no authority imposing such an obligation on counsel in a class action suit. The court's award of sanctions to plaintiff's former employer Allstate under Code of Civil Procedure sec. 128.7 is reversed where Allstate did not satisfy the safe harbor requirements of the statute in seeking monetary sanctions against plaintiff and his counsel.   

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Appellate Information
APPEAL from a judgment of the Superior Court of Los Angeles County. Yvette M. Palazuelos, Judge. Affirmed in part and reversed in part.
SECOND APPELLATE DISTRICT
Filed: July 1, 2009

Judges
Before ZELON, J., PERLUSS, P.J., WOODS, J.
Opinion ZELON, J.

Counsel
For Plaintiff: Law Offices of Bennett Rolfe and Bennett Rolfe.

For Defendant: Marlin & Saltzman, Louis M. Marlin and Stanley D. Saltzman; Nemecek & Cole, Jonathan B. Cole, Mark Schaeffer and Janette S. Bodenstein; Seyfath Shaw, Andrew M. Paley and Laura Reathaford.

Huber v. Jackson, No. D051669

In a dispute over church property, trial court's grant of summary judgment for the general church and its diocese is affirmed where: 1) under the California Supreme Court's holding in the Episcopal Church Cases, the local parish church holds the property in question in trust for the Episcopal Church and the Los Angeles Diocese, and by disaffiliating from the church defendants and their new parish under another church have no right in the property; 2) the court did not err in rejecting defendant's collateral estoppel argument as the case defendant relies on is distinguishable largely due to the passage of time and there is also now Supreme Court precedent on the matter; and 3) the court did not err in determining that after defendants voted for disaffiliation, their purported amendment of the articles of incorporation and bylaws to make the corporation part of the Anglican Church were a legal nullity, or ultra vires.   

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Appellate Information
APPEAL from a judgment of the Superior Court of Los Angeles County, John Shepard Wiley, Jr., Judge. Affirmed.
FOURTH APPELLATE DISTRICT, DIVISION ONE
Filed: June 9, 2009
Published: July 1, 2009

Judges
Before MCCONNELL, P.J., BENKE, J., MCINTYRE, J.
Opinion by MCCONNELL, P.J.

Counsel
For Plaintiff: Holme Roberts & Owen, John R. Shiner, Brent E. Rychener; Horvitz & Levy and Jeremy B. Rosen

For Defendant: Payne & Fears, Eric C. Sohlgren and Daniel F. Lula.

County of Butte v. Superior Court of Butte County, No. C057152

Petition for writ of mandate to overrule a trial court ruling regarding rights related to possession of medical marijuana is denied where the Constitution and laws of the state provide real party in interest Williams relief at law to bring a civil action based on a violation of his constitutional rights, and seek an adjudication as to whether the deputy had probable cause to order Williams to destroy his property or whether a lack of probable cause led to a violation of his constitutional rights.    

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Appellate Information
ORIGINAL PROCEEDING after a judgment of the Superior Court of Butte County, Barbara L. Roberts, Judge. Petition denied.
THIRD APPELLATE DISTRICT
Filed: July 1, 2009

Judges
Before RAYE, J., SCOTLAND, J., MORRISON, J.
Opinion by RAYE, J.
Dissenting Opinion by MORRISON, J.

Counsel
For Petitioner: Bruce S. Alpert and Brad J. Stephens, County Counsel.

For Real Party in Interest: Joseph D. Elford.

Shaw v. People ex rel John Chiang, No. C058479

In an action related to California's state budgetary process, trial court judgment is affirmed in part and reversed in part where: 1) the Legislature's amendment of Revenue and Taxation Code sec. 7102 is invalid and thus most of the Legislatures appropriations of Public Transportation Account spillover gas tax revenue for the 2007-08 budget year are invalid because they do not serve a transportation planning or mass transportation purpose; and 2) the court properly rejected the Legislature's transfer of $409 million from the Public Transportation Account to the General Fund for past debt service payments on Proposition 108 bonds as not being consistent with the purposes of the Public Transportation Account.    

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Appellate Information
APPEAL from a judgment of the Superior Court of Sacramento County, Jack Sapunor, Judge. Affirmed in part and reversed in part.
THIRD APPELLATE DISTRICT
Filed: June 30, 2009

Judges
Before CANTIL-SAKAUYE, J., NICHOLSON, Acting P.J., RAYE, J.
Opinion by CANTIL-SAKAUYE, J.

Counsel
For Plaintiff: Nielsen, Merksamer, Parrinello, Mueller & NaylorRichard D. Martland, Kurt Oneto, James R. Parrinello, Chris Skinnell.

For Defendant: Edmund G. Brown, Jr., Attorney General, Christopher E. Krueger, Senior Assistant Attorney General, Constance L. Lelouis, Supervising Deputy Attorney General, Daniel J. Powell, Deputy Attorney General.

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Trial court judgment sustaining demurrer filed by defendant without leave to amend and dismissing the action is affirmed where the court  properly found it lacked jurisdiction to review the propriety of plaintiff's regional housing needs assessment allocation as the administrative procedure established under Government Code sect. 65584 to calculate a local government's allocation of the regional housing needs assessment is intended to be the exclusive remedy for the municipality to challenge that determination, and reflect a clear intent to preclude judicial intervention in the process.    

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Appellate Information
Appeal from a judgment of the Superior Court of Orange County, William M. Monroe, Judge. Requests for judicial notice. Judgment affirmed. Requests granted.
FOURTH APPELLATE DISTRICT, DIVISION THREE
Filed: June 30, 2009

Judges
Before RYLAARSDAM, ACTING P.J., MOORE, J., IKOLA, J.
Opinion by RYLAARSDAM, ACTING P.J.

Counsel
For Plaintiff: Rutan & Tucker, Philip D. Kohn and William H. Ihrke.
For Defendant: Fulbright & Jaworski, Colin Lennard; Joanna Africa; Miles Chen Law Group and Patricia J. Chen.

Choi v. Orange County Great Park Corp., No. G040823

Trial court judgment is reversed and remanded where the court erred in failing to award plaintiffs attorney fees under Code of Civil Procedure sec. 1021.5 as plaintiffs were the prevailing parties, their action resulted in the enforcement of an important right affecting the public interest and conferred a significant benefit on the general public or a large class of persons, filing the action was necessary for plaintiffs to obtain access to the documents, and the fees will not be paid out of an award to plaintiff.    

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Appellate Information
Appeal from an order of the Superior Court of Orange County, Derek W. Hunt, Judge. Reversed and remanded.
FOURTH APPELLATE DISTRICT, DIVISION THREE
Filed: June 30, 2009

Judges
Before RYLAARSDAM, ACTING P.J., O'LEARY, J., IKOLA, J.
Opinion by RYLAARSDAM, ACTING P.J.

Counsel
For Plaintiff: Enterprise Counsel Group, David A. Robinson, Benjamin P. Pugh and Timothy M. Kowal.
For Defendant: Nossaman LLP, Robert D. Thornton, Rick E. Rayl and Bradford B. Kuhn.

Kobayashi v. Superior Court of Orange County, No. G042173

Petition to file notice of appeal by a vexatious litigant is denied, and the court holds that a vexatious litigant who falsely claims not to be a vexatious litigant when such a claim is so readily disproven by a simple comparison of addresses has manifestly failed to show an arguable issue on appeal when the issue on appeal itself is the identity of the vexatious litigant.   

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Appellate Information
Original proceedings in the Court of Appeal for the State of California.
FOURTH APPELLATE DISTRICT, DIVISION THREE
Filed: June 30, 2009

Judges
Before SILLS, P.J., RYLAARSDAM, J., MOORE, J.
Opinion by SILLS, P.J.

People v. Bamberg, No. A120767

Conviction for perjury, preparing false evidence, and concealing or destroying evidence is affirmed where substantial evidence supports defendant's conviction as the unaltered photograph offered by defendant may be considered false within the meaning of Penal Code sec. 134.1 since they depicted something other than what appellant claimed they showed and they were prepared with the intent to deceive the traffic court.   

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Appellate Information
APPEAL from a judgment of the San Mateo County Super. Ct. No. SC060896A.
FIRST APPELLATE DISTRICT
Filed: June 30, 2009

Judges
Before McGuiness, P.J., Siggins, J., Jenkins, J.
Opinion by McGuiness, P.J.

Counsel
For Plaintiff: Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Martin S. Kaye, Christina Vomsaal and Christopher W. Grove, Deputy Attorneys General.
For Defendant: Martin Kassman, under appointment by the Court of Appeal, First District Appellate Project.

Mednik v. State Dept. of Health Care Serv., No. B193269

Trial court order denying plaintiff's petition for writ of mandate is affirmed where: 1) plaintiff's exclusion from the Medi-Cal program amounted to disbarment and he therefore has a liberty interest at stake; 2) plaintiff has not identified any aspect of the administrative appeal procedure in connection with his temporary suspension and denial of reenrollment which fell short of the demands of due process; and 3) there is no support for plaintiff's allegation that the trial court lacked the complete administrative record.   

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Appellate Information
APPEAL from a judgment of the Superior Court of Los Angeles County, Dzintra Janavs, Judge. Affirmed.
SECOND APPELLATE DISTRICT, DIVISION FOUR
Filed: June 30, 2009

Judges
Before EPSTEIN, P.J., WILLHITE, J., SUZUKAWA, J.
Opinion by EPSTEIN, P.J.

Counsel
For Plaintiff: Landau & Landau, Bruce G. Landau; Law Office of Laura Seraso and Laura Seraso.
For Defendant: Edmund G. Brown, Jr., Attorney General, Douglas M. Press, Assistant Attorney General, Richard T. Waldow, Erin S. Kubota and Gala E. Dunn, Deputy Attorneys General.

Beninati v. Black Rock City, LLC, No. A121539

In a negligence action, trial court judgment is affirmed where the doctrine of primary assumption of risk applies to the activity engaged in by plaintiff at the Burning Man Festival, and thus defendant owed him no duty of care to prevent the injuries he incurred as a result.   

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Appellate Information
Appeal from San Francisco City & County Super. Ct. No. CGC-06-455768.
FIRST APPELLATE DISTRICT, DIVISION FOUR
Filed: June 30, 2009

Judges
Before Ruvolo, P.J., Reardon, J., Sepulveda, J.
Opinion by Ruvolo, P.J.

Counsel
For Plaintiff: The Law Offices of Ian Herzog, Evan D. Marshall and Thomas F. Yuhas.
For Respondent: Murphy, Pearson, Bradley & Feeney, William S. Kronenberg and Steven A. Kronenberg.