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

August 2009 Archives

Wells Fargo Fin. Leasing, Inc. v. D&M Cabinets, No. C058486

In an appeal from a trial court order appointing a receiver to sell Third-Party Claimant's owner-occupied dwelling to foreclose a judgment lien, the order is reversed, where the order expressly allowed the judgment creditor to bypass the statutory procedure for foreclosing a judgment lien on a dwelling occupied as the principal residence of a debtor or his spouse and therefore subject to an automatic homestead exemption.

Read Wells Fargo Fin. Leasing, Inc. v. D&M Cabinets, No. C058486

Appellate Information

Filed August 28, 2009

Judges

Opinion by Judge Sims

Counsel

For Appellant:

Jerrold B. Braunstein

For Respondent:

Kevin P. Whiteford, Serlin & Whiteford, Sacramento, CA

Airlines Reporting Corp. v. Renda, No. D054077

In an appeal from the trial court's denial of Plaintiff's motion to register a judgment against Defendant, the order is affirmed where: 1) Code of Civil Procedure section 1710.40 was the proper means to challenge registration of a sister-state judgment on jurisdictional grounds; 2) Section 1710.40's 30-day limitations period was inapplicable to challenges based on lack of fundamental jurisdiction; and 3) the trial court did not err in ruling that the sister-state default judgment against Defendant was void.

Read Airlines Reporting Corp. v. Renda, No. D054077

Appellate Information

Filed August 27, 2009

Judges

Opinion by Judge McIntyre

Counsel

For Appellant:

Bryan D. Sampson, Sampson & Associates, San Diego, CA

Mary L. Fickel, Sampson & Associates, San Diego, CA

For Respondent:

John J. Freni, San Diego, CA

Alameda Cty. Soc. Servs. Agency v. S.V., No. A121951

In an appeal from a juvenile court's order terminating dependency jurisdiction over Defendant's daughter, the order is affirmed, where: 1) the court properly dismissed dependency jurisdiction and allowed the daughter to remain in her group home; 2) Defendant's challenge to the risk of detriment finding was moot; and 3) reversal and remand to require the juvenile court to comply with the Indian Child Welfare Act would be futile because the daughter had reached the age of majority, and therefore was not an "Indian child" within the meaning of the Act.

Read Alameda Cty. Soc. Servs. Agency v. S.V., No. A121951

Appellate Information

Filed August 27, 2009

Judges

Opinion by Judge Siggins

Counsel

For Appellant:

Judith E. Ganz, Oakland, CA

For Respondent:

Richard E. Winnie, County Counsel, County of Alameda

Franchise Tax Bd. v. Superior Court (Gonzales), No. A122723

In a petition for a writ of mandamus overturning the trial court's denial of Petitioner Franchise Tax Board's motion to strike Respondent's jury trial demand, the petition is granted in part, where Respondent did not have a right to a jury trial on Petitioner's cross-complaint to recover a penalty; but denied in part, where a taxpayer was entitled to a trial by jury pursuant to article I, section 16 of the California Constitution in an action permitted by Revenue and Taxation Code section 19382.

Read Franchise Tax Bd. v. Superior Court (Gonzales), No. A122723

Appellate Information

Filed August 27, 2009

Judges

Opinion by Judge Simons

Counsel

For Petitioner:

Paul D. Gifford, Assistant Attorney General, Oakland, CA

William L. Carter, Deputy Attorney General, Oakland, CA

For Respondent:

Martin A. Schainbaum, Martin A. Schainbaum, PLC, San Francisco, CA

Tracy First v. Tracy, No. C059227

In a petition for review of a city's grant of a conditional use permit to build a store and its environmental impact report (EIR) regarding the same, the denial of the petition is affirmed, where the California Environmental Quality Act guidelines and the city's municipal ordinances did not require the planning commission to review the EIR, as amended, and make a new recommendation to the city council before the city council could act.

Read Tracy First v. Tracy, No. C059227

Appellate Information

Filed August 27, 2009

Judges

Opinion by Judge Nicholson

Counsel

For Appellant:

Steven A. Herum, Herum Crabtree Brown, Stockton, CA

Brett S. Jolley, Herum Crabtree Brown, Stockton, CA

For Respondent:

Rick W. Jarvis, Jarvis, Fay & Doporto, Oakland, CA

Andrea J. Saltzman, Jarvis, Fay & Doporto, Oakland, CA

Parada v. Superior Court, No. G041339

In a petition for a writ of mandamus to overturn trial court's order compelling petitioners to arbitrate their claims against respondents, the petition is granted where the paragraphs in the account agreements at issue requiring arbitration before a panel of three arbitrators and prohibiting consolidation or joinder of claims were unconscionable and therefore unenforceable.

Read Parada v. Superior Court, No. G041339

Appellate Information

Filed August 26, 2009

Judges

Opinion by Judge Fybel

Counsel

For Petitioners:

Steve Buchwalter, Law Offices of Steve A. Buchwalter, Encino, CA

For Real Parties in Interest:

Thomas A. Pistone, Pistone & Wolder, Irvine, CA

Neil A. Goteiner, Farella Brain & Martel LLP, San Francisco, CA

Levinson v. Owens, No. C057565

In a personal injury action based on plaintiff's fall from a horse, summary judgment for defendants is affirmed where, although it became evident the injured rider lacked the skills to control a horse in that setting, the owners of the horse were entitled to accept plaintiff's representation that she had experience riding horses, thus indicating she knew how to control horses.

Read Levinson v. Owens, No. C057565

Appellate Information

Filed August 26, 2009

Judges

Opinion by Judge Scotland

Counsel

For Appellants:

Nancy Hersh, Hersh & Hersh, San Francisco, CA

Daniel U. Smith, Law Office of Daniel U. Smith, San Francisco, CA

For Respondents:

Mark G. Bonino, Ellingson McLay & Scott, Redwood City, CA

Wayne H. Maire, Maire & Beasley, Redding, CA

People v. Williams, No. C059218

Defendant's burglary conviction is affirmed where the trial court erred by failing to instruct the jury on the claim-of-right defense, which requires substantial evidence that the defendant, in good faith, believed the property taken from the victim belonged to his co-principal, but the error was harmless because the instruction could not have influenced the verdict.

Read People v. Williams, No. C059218

Appellate Information

Filed August 26, 2009

Judges

Opinion by Judge Butz

Counsel

For Appellant:

Syda Kosofsky, San Francisco, CA

For Respondent:

Michael P. Farrell, Assistant Attorney General, San Francisco, CA

Ivan P. Marrs, Deputy Attorney General, San Francisco, CA

Beverly Hilton Hotel v. Wkrs.' Comp. Appeals Bd., No. B212205

In a petition for review of the Workers' Compensation Appeals Board's order requiring petitioner to pay vocational rehabilitation benefits to respondent, the petition is granted where the Board's decision was not a final determination of respondent's right to vocational rehabilitation benefits and because Cal. Lab. Code section 139.5 had been repealed.

Read Beverly Hilton Hotel v. Wkrs.' Comp. Appeals Bd., No. B212205

Appellate Information

Filed August 26, 2009

Judges

Opinion by Judge Mosk

Counsel

For Petitioner:

Houman Hamidzadeh, Wai & Connor, Los Angeles, CA

For Respondent:

Neil P. Sullivan

Vincent Bausano

Bearman v. Cal. Med. Bd., No. B210868

In a 42 U.S.C. section 1983 action claiming that defendant state medical board personnel wrongfully investigated plaintiff-physician's recommendation of medical marijuana to a patient, dismissal of the action is affirmed where plaintiff's claims were barred by qualified immunity because he alleged no facts that a reasonable public official would have believed that issuance of the administrative subpoena under the facts presented violated a clearly established statutory or constitutional right.

Read Bearman v. Cal. Med. Bd., No. B210868

Appellate Information

Filed August 26, 2009

Judges

Opinion by Judge Yegan

Counsel

For Appellant:

Joseph D. Allen

For Respondent:

Pamela J. Holmes, Supervising Deputy Attorney General

Brent W. Reden, Deputy Attorney General

People v. Cannedy, No. A120293

In the state's appeal from the trial court's order granting defendant's motion to recuse the Alameda County District Attorney's office pursuant to Cal. Penal Code section 1424, the order is reversed where the fact that an employee of the district attorney's office might be a witness did not justify disqualifying the entire office.

Read People v. Cannedy, No. A120293

Appellate Information

Filed August 25, 2009

Judges

Opinion by Judge Sepulveda

Counsel

Counsel for Appellant:

Sharon Loughner, Deputy Attorney General, San Francisco, CA

Counsel for Respondent:

Michael L. Rains

Rodriguez v. Superior Court, No. B212603

In a petition for a writ of mandamus invalidating the trial court's grant of defendant's motion to compel arbitration, the petition is granted where plaintiff's decedent's death rendered it impossible to make any evidentiary finding regarding whether her alleged waiver of her right to a jury trial was knowing and voluntary.

Read Rodriguez v. Superior Court, No. B212603

Appellate Information

Filed August 25, 2009

Judges

Opinion by Judge Jackson

Counsel

For Petitioner:

Anton C. Gerschler, Encinitas, CA 

For Respondents:

Jack R. Reinholtz, Prindle, Decker & Amaro, Long Beach, CA

In re R.O., No. B208117

Defendant's murder sentence is vacated where the juvenile court failed to recognize its discretion to set a lesser term of confinement than the indeterminate sentence applicable to an adult convicted of the same offense as a juvenile.

Read In re R.O., No. B208117

Appellate Information

Filed August 25, 2009

Judges

Opinion by Judge Rothschild

Counsel

For Appellant:

Laini Millar Melnick

For Respondent:

James William Bilderback II, Deputy Attorney General

Marc A. Kohm, Deputy Attorney General

People v. Hach, No. C055692

Defendant's murder conviction is affirmed where the trial court erred by instructing on felony murder with shooting at an occupied vehicle as the predicate felony, but the other instructions were sufficient to base a second degree murder conviction on either malice or felony murder.

Read People v. Hach, No. C055692

Appellate Information

Filed August 25, 2009

Judges

Opinion by Judge Morrison

Counsel

For Appellant:

Candace Hale, Sausalito, CA

For Respondent:

Julie A. Hokans, Deputy Attorney General

Judy Kaida, Deputy Attorney General

In re Marriage of Blazer, No. H031574

In an appeal from a spousal support order, the order is affirmed where the trial court acted within its discretion in determining the husband's income for purposes of spousal support.

Read In re Marriage of Blazer, No. H031574

Appellate Information

Filed August 25, 2009

Judges

Opinion by Judge McAdams

Counsel

Attorney for Appellant:

C. Michael McClure, Monterey, CA

For Appellee:

Lowell H. Sucherman, Sucherman-Insalaco LLP, San Francisco, CA

People v. Dungo, No. C055923

Defendant's murder conviction is reversed where allowing a physician, who was not present at the victim's autopsy, to testify based on the facts in the report of another doctor who did not appear at trial violated defendant's right of confrontation under the Sixth Amendment.

Read People v. Dungo, No. C055923

Appellate Information

Filed August 25, 2009

Judges

Opinion by Judge Blease

Counsel

For Appellant:

Ann Hopkins, Sacramento, CA

For Appellee:

David A. Rhodes, Supervising Deputy Attorney General, Sacramento, CA

Daniel B. Bernstein, Deputy Attorney General, Sacramento, CA

Hinton v. Beck, No. C056911

In a personal injury action, denial of an insurer's motion to intervene is affirmed where the insurer, having denied coverage and having refused to defend the action on behalf of its insured, did not have a direct and immediate interest to warrant intervention in the litigation.

Read Hinton v. Beck, No. C056911

Appellate Information

Filed August 25, 2009

Judges

Opinion by Judge Blease

Counsel

For Appellants:

Lois A. Lindstrom, Ericksen, Arbuthnot, Kilduff, Day & Lindstrom, Walnut Creek, CA

Gregory A. Mase, Ericksen, Arbuthnot, Kilduff, Day & Lindstrom, Walnut Creek, CA

For Respondent:

John D. Barr, Barr & Mudford, Redding, CA

J. Michael Favor, Barr & Mudford, Redding, CA

Watson v. Superior Court, No. C059957

In a petition for review of a Medical Board order disciplining petitioner-physician, the petition is denied where, although Cal. Bus. & Prof. Code section 2239 requires a nexus between the physician's use of alcoholic beverages and his or her fitness to practice medicine, such nexus was established by the Legislature in all cases where a licensed physician used alcoholic beverages to the extent, or in such a manner, as to pose a danger to himself or others.

Read Watson v. Superior Court, No. C059957

Appellate Information

Filed August 25, 2009

Judges

Opinion by Judge Hull

Counsel

For Petitioner:

Alexander W. Kirkpatrick, San Diego, CA

For Respondent:

Thomas S. Lazar, Supervising Deputy Attorney General, San Diego, CA

Harinder K. Kapur, Deputy Attorney General, San Diego, CA

People v. A.I., No. C058506

In a drug prosecution of a minor in juvenile court, order denying the minor's request for deferred entry of judgment is reversed where the jurisdictional hearing did not commence with the suppression hearing and, thus, the minor timely requested deferred entry of judgment after his suppression motion was denied.

Read People v. A.I., No. C058506

Appellate Information

Filed August 25, 2009

Judges

Opinion by Judge Scotland

Counsel

For Appellant:

Michael Allen

For Respondent:

Michael P. Farrell, Senior Assistant Attorney General

Ryan B. McCarroll, Deputy Attorney General

Bearman v. Cal. Med. Bd., No. B210868

In a 42 U.S.C. section 1983 action claiming that Defendant state medical board personnel wrongfully investigated Plaintiff-Physician's recommendation of medical marijuana to a patient, the dismissal of the action is affirmed, where Plaintiff's claims were barred by qualified immunity because he alleged no facts that a reasonable public official would have believed that issuance of the administrative subpoena under the facts presented violated a clearly established statutory or constitutional right.

Read Bearman v. Cal. Med. Bd., No. B210868

Appellate Information

Filed August 26, 2009

Judges

Opinion by Judge Yegan

Counsel

For Appellant:

Joseph D. Allen

For Respondent:

Pamela J. Holmes, Supervising Deputy Attorney General

Brent W. Reden, Deputy Attorney General

21st Centruy Ins. Co. v. Quintana, No. S154790

In a case against an automobile insurance company, the Court of Appeal's judgment is affirmed where, although the made-whole rule applies in the med-pay insurance context and the insured must be made whole as to all damages proximately caused by the injury, liability for attorney's fees is not included under the made-whole rule.  Instead, a pro rata apportionment rule for attorney fees better allocates responsibility between the insured and the insurer.       

Read 21st Centruy Ins. Co. v. Quintana, No. S154790

Appellate Information

Appeal from San Diego County Super. Ct. No. GIC 87010.
Filed August 24, 2009

Judges

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

Counsel

For Petitioner:   Luce, Forward, Hamilton & Scripps, Peter H. Klee, John T. Brooks and Charles H. Danaher

For Respondent: Law Office of Robert S. Gerstein, Robert S. Gerstein; Huffman & Kostas, James C. Kostas, David Huffman; Law Offices of Sheldon A. Ostroff and Sheldon A. Ostroff for Real Party in Interest.

People v. Moye, No. S157980

In a second degree murder case, Court of Appeal's judgment reversing defendant's murder conviction based on its determination that the trial court's jury instructional error was prejudicial is reversed and remanded where the evidentiary record supports the trial court's determination that there was insufficient evidence to warrant instruction on a sudden quarrel/heat of passion theory of voluntary manslaughter.      

Read People v. Moye, No. S157980 

Appellate Information
Appeal from Los Angeles County Super. Ct. No. KA074073.
Filed August 24, 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:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson, Kristofer Jorstad and Elaine F. Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.  

For Defendant: Patricia A. Scott, under appointment by the Supreme Court.

In an action by a hospital to recover costs from a city based on the hospital's treatment of an arrestee, judgment for plaintiff is reversed where, under the nature of the offense rule, the county, not the city, was responsible under Cal. Penal Code section 4011 for the costs at issue because the arrestee was hospitalized while incarcerated for violations of probation and parole under state law.

Read Hospital Comm. for Livermore-Pleasanton Areas v. City of Oakland, No. A122674

Appellate Information

Filed August 24, 2009

Judges

Opinion by Judge Marchiano

Counsel

For Appellant:

Randolph W. Hall, Assistant City Attorney, Oakland, CA

Christopher Kee, Deputy City Attorney, Oakland, CA

For Respondent:

James E. Towery, Hoge, Fenton, Jones & Appel, San Jose, CA

Alison P. Buchanan, Hoge, Fenton, Jones & Appel, San Jose, CA

Ali v. U.S.A. Cab. Ltd., No. D052127

In a wage and hour action against a taxicab company claiming that the company's leases wrongfully classified lessees as independent contractors rather than employees, a denial of class certification is affirmed where the purported class would be unmanageable, and common questions did not predominate over individual issues, given differences among lessees' situations.

Read Ali v. U.S.A. Cab. Ltd., No. D052127

Appellate Information

Filed August 24, 2009

Judges

Opinion by Judge McConnell

Counsel

For Appellants:

Stephen J. Schultz, Marks, Golia & Finch, LLP, San Diego, CA

Bernard F. King, III, Marks, Golia & Finch, LLP, San Diego, CA

For Respondents:

Paul Kissel, Borton Petrini, LLP, San Diego, CA

Jonathan P. Geen, Borton Petrini, LLP, San Diego, CA

People v. Hovda, No. C058800

Defendant's vehicular manslaughter conviction is affirmed where the trial court did not err in failing to instruct the jury that gross negligence requires conscious indifference to consequences, because CALCRIM No. 590, the pattern instruction on gross vehicular manslaughter while intoxicated the trial court gave, conveyed the equivalent of "conscious indifference" by informing the jury that gross negligence exists only if a reasonable person would have known that acting in that way would create a high risk of death or great bodily injury.

Read People v. Hovda, No. C058800

Appellate Information

Filed August 24, 2009

Judges

Opinion by Judge Robie

Counsel

For Appellant:

Patricia L. Watkins

For Respondent:

Michael P. Farrell, Senior Assistant Attorney General

Julie A. Hokans, Supervising Deputy Attorney General

Baur v. Wkrs.' Comp. Appeals Bd., No. C061042

In a petition for review of a worker's compensation judge's order granting petitioner's employer a credit against future worker's compensation payments resulting from petitioner's injuries, the petition is denied where payments from the California Insurance Guarantee Association counted toward such a credit.

Read Baur v. Wkrs.' Comp. Appeals Bd., No. C061042

Appellate Information

Filed August 21, 2009

Judges

Opinion by Judge Robie

Concurrence by Judge Scotland

Counsel

For Petitioner:

Andy Kirk, Mastagni, Holstedt, Amick, Miller & Johnsen

For Respondent:

Matthew Brueckner, Law Office of Matthew Brueckner

People v. Thrasher, No. B209219

In a perjury prosecution, dismissal of the information against defendant is affirmed where an alleged loan defendant had failed to disclose on a government form relating to political contributions was not in fact a loan, but rather an obligation for past due rent.

Read People v. Thrasher, No. B209219

Appellate Information

Filed August 21, 2009

Judges

Opinion by Judge Rubin

Counsel

For Appellant:

Phyllis Asayama, Deputy District Attorney, Los Angeles, CA

Natasha S. Cooper, Deputy District Attorney, Los Angeles, CA

For Respondent:

Kevin Barry McDermott, Los Angeles, CA

In re Spencer S., No. G040560

In an appeal from an order declaring a minor a ward of the court, the order is affirmed where: 1) there was a rational basis for Welfare and Institutions Code section 790's distinction between juvenile misdemeanants and felons; and 2) a probation condition prohibiting the minor from associating with other persons on probation was not unconstitutionally overbroad.

Read In re Spencer S., No. G040560

Appellate Information

Filed August 21, 2009

Judges

Opinion by Judge Ikola

Counsel

For Appellant:

Robert S. Hanna, Berger Silverman & Gephart

For Respondent:

Gary W. Schons, Chief Assistant Attorney General

Peter Quon, Assistant Attorney General

Sequoia Park Assocs. v. County of Sonoma, No. A120049

In an action by a mobile home park operator to enjoin the application of an ordinance on preemption grounds, dismissal of the action is reversed where the Subdivision Act expressly preempted the ordinance because it states that the "scope of the hearing" for converting a mobile home park to residential ownership "shall be limited to the issue of compliance with this section."

Read Sequoia Park Assocs. v. County of Sonoma, No. A120049

Appellate Information

Filed August 21, 2009

Judges

Opinion by Judge Richman

Counsel

For Appellant:

Elliot L. Bien, Bien & Summers

Catherine Meulemans, Bien & Summers

Attorneys for Respondent:

Steven M. Woodside, County Counsel, San Jose, CA

Debbie F. Latham, Deputy County Counsel, San Jose, CA

People v. Rodriguez, No. S159497

Court of appeal's ruling striking a portion of defendant's sentence for assault with a firearm, on the ground that Penal Code section 654 prohibits multiple punishment for the same act, is reversed where: 1) the appeals court correctly found the trial court erred in imposing additional punishment for defendant's firearm use under two statutory provisions; but 2) section 654 does not provide the basis for this finding, and instead it is section 1170.1(f), which prohibits the imposition of additional punishment under more than one enhancement provision for "using ... a firearm in the commission of a single offense", which was violated here. 

Read People v. Rodriguez, No. S159497

Appellate Information
Appeal from Los Angeles County Super. Ct. No. MA025392.
Filed August 20, 2009

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

Counsel
For Plaintiff: Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela Hamanaka, Assistant Attorney General, Scott A. Taryle, Kristofer Jorstad, Jason Tran and Allison H. Chung, Deputy Attorneys General.

For Defendant: MathewAlger, under appointment by the Supreme Court, and Murray A. Rosenberg, under appointment by the Court of Appeal. 

People v. Moberly, No. F054954

Defendant's manslaughter conviction and sentence are affirmed where the trial court adequately apprised the jury that it could not convict defendant of the greater crime of voluntary manslaughter unless it unanimously found beyond a reasonable doubt that defendant acted with the intent to kill or with a conscious disregard of life.

Read People v. Moberly, No. F054954

Appellate Information

Filed August 19, 2009

Judges

Opinion by Judge Dawson

Counsel

For Appellant:

Cliff Gardner, Sacramento, CA

For Respondent:

Catherine Chatman, Deputy Attorney General, Sacramento, CA

Jeffrey A. White, Deputy Attorney General, Sacramento, CA

People v. Flores, No. B204561

Defendant's murder conviction is affirmed where the use of defendant's history of domestic violence at trial did not violate the constitutional prohibition against the ex post facto application of laws; but defendant's sentence is vacated where the trial court erred in imposing a seven year mid-term.

Read People v. Flores, No. B204561

Appellate Information

Filed August 19, 2009

Judges

Opinion by Judge Rubin

Counsel

For Appellant:

Jeralyn Keller, Pasadena, CA

For Respondent:

Susan Sullivan Pithey, Deputy Attorney General

Roy C. Preminger, Deputy Attorney General, Los Angeles, CA

Salter v. Lerner, No. A121525

In an appeal from a probate court's determination that a petition plaintiffs proposed to file against defendant seeking information regarding his conduct as trustee of a trust would not violate the no contest provision of the trust agreement, the order is affirmed where the proposed petition did not seek to do more than enforce defendant's nonwaivable fiduciary duty under Probate Code section 16060.

Read Salter v. Lerner, No. A121525

Appellate Information

Filed August 19, 2009

Judges

For Appellant:

Keith P. Bartel, Carr, McClellan, Ingersoll, Thompson & Horn, Burlingame, CA

John D. Minton, Carr, McClellan, Ingersoll, Thompson & Horn, Burlingame, CA

For Respondent:

Jon B. Eisenberg, Eisenberg & Hancock, Oakland, CA

William N. Hancock, Eisenberg & Hancock, Oakland, CA

Yabsley v. Cingular Wireless, LLC, No. B198827

In an unfair competition action against a cellular phone company for failing to inform the consumer that a tax would be imposed on the full price of the cell phone, dismissal of the complaint is affirmed where California Code of Regulations, title 18, section 1585, which required that the sales tax be calculated based on the non-sale price of the phone and permitted the retailer to collect this amount from the customer, provided a "safe harbor" from such claims.

Read Yabsley v. Cingular Wireless, LLC, No. B198827

Appellate Information

Filed August 19, 2009

Judges

Opinion by Judge Perren

Counsel

For Appellant:

William D. Pettersen, Pettersen & Bark

James H. Smith, Grokenberger & Smith

For Respondent:

Ross H. Hyslop, McKenna Long & Aldridge, LLP

James A. Tabb, McKenna Long & Aldridge, LLP

Capital Gold Group, Inc. v. Nortier, No. B207861

In an appeal from an order striking plaintiff's complaint on the ground that it converted to a Delaware corporation without complying with California's corporate conversion requirements, the order is reversed where plaintiff had the capacity to maintain pending actions under Nevada and Delaware laws, plaintiff was duly qualified to transact intrastate business in California, and Corporations Code section 1157 did not apply to the conversion of a foreign corporation to another foreign business entity.

Read Capital Gold Group, Inc. v. Nortier, No. B207861

Appellate Information

Filed August 19, 2008

Judges

Opinion by Judge Kriegler

Counsel

For Appellants:

Robert James Skousen, Skousen Law, San Bernardino, CA

James Allen, Skousen Law, San Bernardino, CA

Coffman Specialties, Inc. v. Dept. of Transp., No. D053134

In an action alleging that the arbitration provisions of the State Contract Act were unconstitutional, dismissal of the complaint is affirmed where those provisions provided assurance that an arbitrator who ultimately presides over a public works arbitration hearing will be neutral and acceptable to both parties.

Read Coffman Specialties, Inc. v. Dept. of Transp., No. D053134

Appellate Information

Filed August 19, 2009

Judges

Opinion by Judge Haller

Counsel

For Appellant:

Kerri M. Melucci, Braun & Melucci, La Jolla, CA

For Respondent:

Stephen P. Acquisto, Supervising Deputy Attorney General, San Francisco, CA

Ross C. Moody, Deputy Attorney General, San Francisco, CA

Owen v. Sands, No. A121809

In an appeal from the assessment of civil penalties against a contractor by the Registrar of Contractors, the order is affirmed where the clear and convincing evidence standard does not apply in a citation proceeding where the only proposed sanctions are a civil penalty or an order of correction.

Read Owen v. Sands, No. A121809

Appellate Information

Filed August 18, 2009

Judges

Opinion by Judge Bruiniers

Counsel

For Appellant:

Timothy J Owen, pro se

For Respondent:

Diann Sokoloff, Deputy Attorney General

Meza v. H. Muehlstein & Co., No. B201427

In a personal injury action, grant of defendants' disqualification motion is affirmed where plaintiff's counsel hired a former defense attorney who had received work product related to the action, and defendants' attorneys did not waive the attorney work product privilege by communicating with each other regarding their respective clients' common interests.

Read Meza v. H. Muehlstein & Co., No. B201427

Appellate Information

Filed July 18, 2009

Judges

Opinion by Judge Kitching

Counsel

For Appellant:

Raphael Metzger, Metzger Law Group, Long Beach, CA

Gregory A. Coolidge, Metzger Law Group, Long Beach, CA

For Respondent:

Scott T. Tropio, Tropio & Morlan, Woodland Hills, CA

Christopher J. Hammond, Tropio & Morlan, Woodland Hills, CA

People v. Hochanadel, No. D054743

In an appeal from a trial court's order quashing a search warrant for the premises of medical marijuana providers, the order is reversed where the court erred in finding that defendant qualified as a primary caregiver under the Compassionate Use Act and the Medical Marijuana Program Act, and in finding that the detective who authored the search warrant affidavit was not qualified to opine as to the legality of defendant's activities.

Read People v. Hochanadel, No. D054743

Appellate Information

Filed August 18, 2009

Judges

Opinion by Judge Nares

Counsel

For Appellant:

Jacqueline C. Jackson, Deputy District Attorney, San Francisco, CA

For Respondents:

Marylou Hilbert

James M. Crawford, Orange, CA

Weisblat v. San Diego, No. D052787

In an action challenging a tax on owners of residential real property who rented their properties, summary judgment for defendants is reversed, where the levy was a general tax that was void because it was not approved by a majority vote of the municipal electorate as required by article 13C, section 2, subdivision (b) of the California Constitution.

Read Weisblat v. San Diego, No. D052787

Appellate Information

Filed August 18, 2009

Judges

Opinion by Judge Nares

Counsel

For Appellants:

Edward M. Teyssier, San Diego, CA

For Respondent:

Michael J. Aguirre, City Attorney, San Diego, CA

Joe Cordileone, Deputy City Attorney, San Diego, CA

People v. Rutterschmidt, No. B209568

Defendants' murder convictions are affirmed where: 1) a prosecution scientific expert may testify as to an opinion in reliance upon another scientist's report; and 2) the record provided substantial evidentiary support for the trial court's finding of no improper collusion by state and federal officers.

Read People v. Rutterschmidt, No. B209568

Appellate Information

Filed August 18, 2009

Judges

For Appellants:

David H. Goodwin, Los Angeles, CA

For Respondent:

David E. Madeo, Deputy Attorney General, Los Angeles, CA

People v. Wallace, No. A120500

Defendant's conviction for willfully failing to update his registration as a sex offender is affirmed in part where the registration statute did not require the prosecution to prove that the defendant had established a new address; but reversed in part where there was no evidence presented to the jury regarding defendant's whereabouts after he left his last registered address.

Read People v. Wallace, No. A120500

Appellate Information

Filed August 18, 2009

Judges

Opinion by Judge Jenkins

Counsel

For Appellant:

Richard Such, Palo Alto, CA

For Respondent:

Brent W. Wilner, Deputy Attorney General, San Francisco, CA

In re Preston, No. A122583

In a prosecution for possessing a counterfeiting device, a denial of a habeas petition is affirmed where petitioner's sentence was proper because the question of whether a parolee has remained free of prison custody depends on whether he has either remained on parole without revocation, or been discharged from custody, preceding the required continuous five year period.

Read In re Preston, No. A122583

Appellate Information

Filed August 18, 2009

Judges

Opinion by Judge McGuinness

Counsel

For Petitioner:

J. Bradley O'Connell

For Respondent:

Rene A. Chacon, Supervising Deputy Attorney General, San Francisco, CA

People v. Guerra, No. H032881

Defendant's sexual assault sentence is vacated where the trial court improperly instructed the jury that it might wish to reconsider its inconsistent "not true" finding on certain three-strikes enhancement issues, thus invading the province of the jury.

Read People v. Guerra, No. H032881

Appellate Information

Filed August 18, 2009

Judges

Opinion by Judge Duffy

Counsel

For Appellant:

Robert Derham, Law Offices of Robert Derham, San Anselmo, CA

For Respondent:

Seth K. Schalit, Supervising Deputy Attorney General, San Francisco, CA

People v. Adams, No. G039967

Defendant's conviction for battery causing serious bodily injury is affirmed where the trial court did not give conflicting jury instructions on the right of self-defense and on citizen's arrest, and thus did not violate defendant's due process rights.

Read People v. Adams, No. G039967

Appellate Information

Filed August 18, 2009

Judges

Opinion by Judge Moore

Counsel

For Appellant:

William J. Capriola

For Respondent:

Dane R. Gillette, Chief Assistant Attorney General, San Francisco, CA

Gary W. Schons, Assistant Attorney General, San Francisco, CA

Taheri Law Grp., A.P.C. v. Sorokurs, No. B202693

In a petition to vacate an arbitral award, denial of the petition is affirmed where although defendant did not file a timely response to plaintiff's petition to vacate the award, the trial court was not required to grant the petition.

Read Taheri Law Grp., A.P.C. v. Sorokurs, No. B202693

Appellate Information

Filed August 18, 2009

Judges

Opinion by Judge Croskey

Dissent by Judge Klein

Counsel

For Appellant:

Yevgeniya Lisitsa, Lisitsa Law Corporation

For Respondents:

Neil C. Evans, Law Offices of Neil C. Evans

Long Beach v. L.A. Unified Sch. Dist., No. B207721

In a petition by a city seeking to overturn a school district's final environmental impact report (FEIR) evaluating a plan to construct a high school, the denial of the petition is affirmed where respondent-district proceeded in the manner required by law where the FEIR adequately analyzes the challenged impacts of the project and is sufficient as an informational document.

Read Long Beach v. L.A. Unified Sch. Dist., No. B207721

Appellate Information

Filed August 17, 2009

Judges

Opinion by Judge Aldrich

Counsel

For Appellant:

Robert E. Shannon, City Attorney, Long Beach, CA

Michael J. Mais, Assistant City Attorney, Long Beach, CA

For Respondents:

Fernando Villa, Pircher, Nichols & Meeks

People v. Flores, No. F055859

Defendant's battery conviction is affirmed where: 1) counsel was not ineffective for failing to pursue his Pitchess motion, because defendant made it abundantly clear that he wanted the trial to commence as quickly as possible, even if it meant giving up his Pitchess motion; and 2) a violation of Cal. Pen. Code section 4501.5 is a necessarily included offense of a violation of Cal. Pen. Code section 4501.1.3.

Read People v. Flores, No. F055859

Appellate Information

Filed August 17, 2009

Judges

Opinion by Judge Cornell

Counsel

For Appellant:

Gretchen Franklin, Federal Public Defender, Washington, DC

For Appellee:

Michael P. Farrell, Assistant Attorney General, Los Angeles, CA

R. Todd Marshall, Deputy Attorney General,Los Angeles, CA

Fashion Valley Mall, LLC v. San Diego, No. D053411

In an action seeking a refund of county property taxes, summary judgment for defendant is affirmed where the trial court did not err in finding that a 100% change of ownership of the property at issue occurred for purposes of property tax reassessment.

Read Fashion Valley Mall, LLC v. San Diego, No. D053411

Appellate Information

Filed August 17, 2009

Judges

Opinion by Judge Irion

Counsel

For Appellant:

C. Stephen Davis, Cahill, Davis & O'Neall, San Diego, CA

For Appellee:

John J. Sansone, San Diego County Counsel

Walter J. De Lorrell III, Senior Deputy County Counsel

Christoff v. Nestle USA, Inc., No. S155242

In an action brought by a professional model for the misappropriation of his likeness by defendant-Nestle, a court of appeal ruling reversing a trial court jury award of over $15 million is affirmed in part and reversed in part where: 1) the trial court erroneously ruled that the single-publication rule does not apply to claims for appropriation of likeness; but 2) the court of appeals erred to the extent that it held that, for purposes of the statute of limitations, plaintiff's cause of action necessarily accrued when Nestle first "published" the label pursuant to the rule of Shively v. Bozanich, 31 Cal.4th 1230 (2003).

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Appellate Information
APPEAL from Los Angeles County Super. Ct. No. EC036163.

Filed August 17, 2009

Judges
Before: George, C.J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., Corrigan, J., Moreno, J.
Opinion by Moreno, J.

Counsel
For Plaintiff: Law Offices of Colin C. Claxon, Colin C. Claxon; Mayer & Glassman Law Corporation, Robert David Mayer; Kibre & Horwitz, Eric G. Stockel; and David J. Franklyn.

Duncan W. Crabtree-Ireland and Danielle S. Van Lier for Screen Actors Guild, Inc., as Amicus Curiae

Reich, Adell & Cvitan, Laurence S. Zakson and William Y. Sheh for American Federation of Television and Radio Artists, AFL-CIO, as Amicus Curie.

For Defendant: Horvitz & Levy, David M. Axelrad, Jeremy B. Rosen, John A. Taylor, Jr.; Heller & Edwards, Lawrence E. Heller and Shula R. Barash.

Davis Wright Tremaine, Kelli L. Sager, Rochelle L. Wilcox, Kevin L. Vick; Karlene Goller; Jonathan Donellan; Hallie Michelena; David Tomlin, Laura Malone; Thomas W. Newton; Peter Scheer; Lucy Dalglish and Gregg Leslie for Los Angeles Times Communications LLC, The Hearst Corporation, Viacom, Inc., The Associated Press, The California Newspaper Publishers Association, The California First Amendment Coalition, The Reporters Committee for Freedom of the Press and The Association of Alternative Newsweeklies as Amici Curiae.

Loeb & Loeb, Douglas E. Mirell and W. Allan Edmiston for Motion Picture Association of America, Inc., as Amicus Curiae.  

In re Julian R., No. S159282

Juvenile defendant's sentence is affirmed where: 1) a statement of maximum period of confinement need only be written and not orally pronounced in order to comply with statute; and 2) on a silent record, a court is presumed to have complied with its statutory duty to consider imposition of a confinement period shorter than the adult maximum that might be justified by the facts and circumstances at issue. 

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Appellate Information
Appeal from Monterey County Super. Ct. No. J38483.
Filed August 17, 2009

Judges
Before: BAXTER, J., GEORGE, C.J., WERDEGAR, J., CHIN, J., MORENO, J., CORRIGAN, J., KENNARD, J.
Opinion by KENNARD, 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, Laurence K. Sullivan and Jeffrey M. Bryant, Deputy Attorneys General

For Defendant: Lori A. Quick, under appointment by the Supreme Court.

Standard Pacific Corp. v. Superior Court, No. E046844

Petition for writ of mandate issue directing superior court to vacate an order denying a motion to stay proceedings until real parties in interest-homeowners complied with their obligation to give plaintiff-builder an opportunity to repair the claimed defects is reversed where the burden is not on the plaintiff-builder to establish that it had chosen to opt-in to the statutory scheme by performing its disclosure obligations under Code of Civ. Pro. sec. 912, but instead is on the real party in interest-homeowner to either comply with Code of Civ. Pro. sec. 910 and follow the prelitigation procedure of notice and opportunity to repair before filing suit, or to establish why he or she need not follow the prelitigation procedures in the statute.

Read Standard Pacific Corp. v. Superior Court, No. E046844

Appellate Information

Filed August 14, 2009

Judges

Opinion by Judge Gaut

Counsel

For Petitioner:

John A. O'Hara, Newmeyer & Dillion, Newport Beach, CA

For Real Parties in Interest:

Clayton M. Anderson, Anderson & Kriger, La Mesa, CA

Sarita T. Patel, Anderson & Kriger, La Mesa, CA

D.C. v. Harvard-Westlake School, No. B204634

In an action against plaintiff's school claiming it was liable under hate crimes laws for death threats he received from classmates who misperceived his sexual orientation, judgment granting petition to confirm an arbitration award against plaintiff and denying a petition to vacate is reversed where: 1) plaintiff and his parents filed suit against a school, seeking remedies under the California hate crimes laws, and since hate crimes laws constitute unwaivable statutory rights comparable to antidiscrimination laws, neither the student nor his parents may be required to pay any type of arbitral expense that would not be imposed were the dispute adjudicated in court; and 2) hate crimes laws prohibit an award of fees to a prevailing defendant, and thus render the award of attorney's fees in the case invalid. On remand, the trial court must ensure that the arbitration award does not include any inappropriate arbitral expenses or any attorney's fees prohibited by hate crimes laws.

Read D.C. v. Harvard-Westlake School, No. B204634

Appellate Information

Filed August 14, 2009

Judges

Opinion by Judge Mallano

Dissent by Judge Rothschild

Counsel

For Appellants:

Robert S. Gerstein, Los Angeles, CA

For Respondents:

Stuart W. Rudnick, Musick, Peeler & Garrett, Los Angeles, CA

Kent A. Halkett, Musick, Peeler & Garrett, Los Angeles, CA

Mueller v. County of LA, No. B201171

In an action for whistleblower retaliation, intentional infliction of emotional distress, and conducting a negligent investigation into complaints of harassment and retaliation, trial court grant of summary judgment for defendant is affirmed where: 1) plaintiff's claim that there was a negligent investigation into complaints of harassment and retaliation fails as plaintiff did not demonstrate that the department's written policy on behavior norms creates legally enforceable duties on the department that compels a careful investigation when a complaint is lodged that an employee has violated the behavior norms of the department; 2) plaintiff's claim that the department's actions violated whistleblower laws fails as neither LA County Code sec. 5.02.060 (a) nor Labor Code Section 1102.5 applies; 3) plaintiff cannot receive an independent recovery for intentional infliction of emotional distress in the employment arena as that injury comes under the exclusive remedy of worker's compensation laws; 4) plaintiff was not prejudiced when the court did not take up his request for a continuance and his ex parte application, as his cause of action for retaliation had no legal basis and therefore there was no need for the trial court to rule on them; and 5) there are no inaccuracies in the judgment.    

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Appellate Information
APPEAL from a judgment of the Superior Court of Los Angeles County, John Shepard Wiley, Jr., Judge. Affirmed.
SECOND APPELLATE DISTRICT, DIVISION THREE
Filed August 13, 2009

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

Counsel
For Plaintiff: Haney, Buchanan & Patterson, Steven H. Haney and Michelle S. Tamkin; George G. Romaine.

For Defendant: Manning & Marder, Kass, Ellrod, Ramirez LLP, Mildred K. O'Linn and Julie Fleming.

Wood v. Santa Monica Escrow Co., No. B205939

Trial court judgment denying plaintiff's motion for attorney's fees is affirmed where the trial and appeal are a single proceeding and defendant was still the overall prevailing party after plaintiff dismissed its suit against it, despite plaintiff's success on an appeal of the award of attorney's fees.   

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Appellate Information
APPEAL from Ventura County Super. Ct. No. SC 036168
SECOND APPELLATE DISTRICT, DIVISION SIX
Filed August 13, 2009

Judges
Before YEGAN, J., GILBERT, P.J., COFFEE, J.
Opinion by GILBERT, P.J.

Counsel
For Plaintiff: Steinmeyer Roth, William Bruce Steinmeyer.

For Defendant: Nordman Cormany Hair & Compton.

People v. Neely, No. B204851

Conviction for first degree murder, attempted second degree robbery and drug crime is affirmed where: 1) substantial evidence supports defendant's conviction for attempted robbery; and 2) defendant's argument that the court erred by admitting hearsay evidence is forfeited as trial counsel failed to object to admission of the evidence at trial. Sentence is vacated where: 1) the court erred in the sentencing of both attempted robberies as it incorrectly determined the length of one of the terms; 2) one of the sentences for attempted robbery must be stayed pursuant to Penal Code sec. 654 as the statute bars separate punishment for multiple offenses arising out of a single, indivisible course of action and the evidence supports the theory that the murder was committed as part of the attempted robberies; and 3) the abstract of judgment should be corrected to provide that defendant's liability to pay the restitution order should be a joint and several liability.    

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Appellate Information
APPEAL from Los Angeles County Super. Ct. No. TA084532.
SECOND APPELLATE DISTRICT, DIVISION SIX
Filed August 13, 2009

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

Counsel
For Plaintiff: Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jason Tran, Dana M. Ali, Deputy Attorneys General.

For Defendant: Lynda A. Romero, under appointment by the Court of Appeal

In re B.R., No. A122581

Juvenile court order terminating parental rights is reversed where the Indian Child Welfare Act applies when the minors' presumed father in a juvenile dependency proceeding alleges that his adoptive father has one-quarter ancestry in a federally recognized Indian tribe, and thus notice of the proceedings must be given to the tribe in question.    

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Appellate Information
APPEAL from Marin County Super. Ct. Nos. JV24131A, JV24132A
FIRST APPELLATE DISTRICT, DIVISION ONE
Filed August 13, 2009

Judges
Before Margulies, J., Marchiano, P.J., Graham, J.
Opinion by Margulies, J.

Counsel
For Plaintiff: Patrick K. Faulkner, County Counsel, Jessica F. Mills, Deputy County Counsel.

For Defendant: Caroline J. Todd, under appointment by the Court of Appeal.

People v. Martinez, No. S064574

Conviction for first degree murder and other crimes and sentence to death is affirmed where: 1) the trial court did not err in failing to conduct a Marsden inquiry regarding substitute counsel; 2) the trial court did not abuse its discretion in sustaining the prosecutor's challenges for cause against two prospective jurors; 3) the court did not err in its jury instructions concerning consideration of the testimony of a willfully untruthful witness, and the inferring of consciousness of guilt from defendant's attempt to persuade a witness to provide false evidence or from evidence of his flight from the crime scene; 4) defendant is not entitled to inspect the undisclosed portion of the witness's juvenile file as it is not material to the defense; and 5) California's death penalty statute does not violate the state or federal constitutions.    

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Appellate Information
APPEAL from Alameda County Super. Ct. No. H15696.
Filed August 13, 2009

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

Counsel
For Plaintiff: 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 Jill M. Thayer, Deputy Attorneys General.

For Defendant: Paul J. Spiegelman, under appointment by the Supreme Court.

Jhaveri v. Teitelbaum, No. B203923

Trial court judgment ordering plaintiffs to execute and deliver a partial satisfaction of judgment is affirmed where: 1) Code of Civil Procedure sec. 877 is not applicable as it applies only to a settlement entered into with a co-tortfeasor before a verdict or judgment, and the settlement between the plaintiffs and defendants occurred after the judgment; 2) judicial estoppel does not apply here as the factual prerequisite to invoke the doctrine is not present; 3) the court correctly credited defendants with the partial satisfaction of judgment under Code of Civil Procedure section 724.110 (b); and 4) substantial evidence supported a finding that defendants are entitled to a credit against the judgment, and the court did not abuse its discretion in directing the plaintiffs to execute a partial satisfaction of judgment for that amount in equitable setoff. 

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Appellate Information
APPEAL from an order of the Superior Court of Los Angeles County, William F. Highberger, Judge. Affirmed.
SECOND APPELLATE DISTRICT, DIVISION EIGHT
Filed August 12, 2009

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

Counsel
For Plaintiff: Hornberger & Brewer, Nicholas W. Hornberger, Michael Brewer and Wesley W. Chang.

For Defendant: Benedon & Serlin, Gerald M. Serlin and Kelly R. Horwitz.

DVD Copy Control Association, Inc. v. Kaleidescape, Inc., No. H031631

In an action for breach of contract and breach of the covenant of good faith and fair dealing, trial court judgment for defendant is reversed where the court erred in finding that the general specifications document was not part of the written license agreement between the parties, as the undisputed extrinsic evidence shows that the document was one set of specifications that plaintiff provided to defendant pursuant to their arrangement, and thus defendant was bound by the terms in the document.    

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Appellate Information
APPEAL from Santa Clara County Super. Ct. No. CV031829.
SIXTH APPELLATE DISTRICT
Filed August 12, 2009

Judges
Before Premo, J., Elia, J., RUSHING, P.J.
Opinion by Premo, J.
Concurring Opinion by RUSHING, P.J.

Counsel
For Plaintiff: Akin Gump Straus Hauer & Feld, Edward Peter Lazarus, Michael C. Small, L. Rachel Helyar; White & Case, William S. Coats, Heidi L. Keefe, Mark R. Weinstein, Mark F. Lambert.

For Defendant: Law Offices of Richard R. Wiebe, Richard R. Wiebe; Thelen Reid Brown Raysman & Steiner, Keith L. Slenkovich, Tomomi Harkey; The Moore Law Group, Thomas E. Moore III, Nicole V. Economou.

In re Antilia, No. G041453

Petition for writ of habeas corpus is granted where a postjudgment petition for writ of mandate pursuant to Penal Code sec. 1405 challenging the order denying defendant's motion to conduct DNA testing is sufficiently similar to an appeal to justify application of the constructive filing doctrine, and defendant satisfied the factual requirements for constructive filing.    

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Appellate Information
Original proceedings; petition for a writ of habeas corpus, after judgment and postjudgment order of the Superior Court of Orange County. Gregg L. Prickett, Judge. Petition granted.
FOURTH APPELLATE DISTRICT, DIVISION THREE
Filed August 11, 2009

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

Counsel
For Petitioner: Marri Derby, Alternate Defender, and Dave Dziejowski, Deputy Alternate Defender.

For Respondent: Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kevin Vienna and David Delgado-Rucci, Deputy Attorneys General.

 

People v. Flores, No. F055859

Conviction for battery by gassing is reversed and remanded where battery by gassing is a necessarily included offense of battery by a prisoner on a nonprisoner, and thus defendant should not have been convicted of battery by gassing once the jury found him guilty of battery by a prisoner on a nonprisoner. 

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Appellate Information
APPEAL from a judgment of the Superior Court of Kern County. Gary A. Ingle, Judge.
FIFTH APPELLATE DISTRICT
Filed August 11, 2009

Judges
Before CORNELL, J., ARDAIZ, P.J., VARTABEDIAN, J.
Opinion by CORNELL, J.

Counsel
For Plaintiff: Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and Raymond L. Brosterhous II, Deputy Attorneys General.

For Defendant: Gretchen Franklin, under appointment by the Court of Appeal.

 

People v. Moore, No. B207616

Conviction for grand theft and perjury is affirmed where the trial court properly denied defendant's motion to dismiss based on the statute of limitations, as a third-party disbursing contractor is not the victim when a person defrauds a government funded program, and thus defendant did not establish as a matter of law that the statute of limitations on his crimes ran before the People filed the complaint.    

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Appellate Information
APPEAL from a judgment of the Superior Court of Los Angeles County. Patricia Titus, Judge. Affirmed.
SECOND APPELLATE DISTRICT, DIVISION EIGHT
Filed August 11, 2009

Judges
Before BIGELOW, J., RUBIN, Acting P.J., BENDIX, J.
Opinion by BIGELOW, J.

Counsel
For Plaintiff: Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Alene M. Games, Deputy Attorneys General.

For Defendant: Lise M. Breakey, under appointment by the Court of Appeal. 

 

People v. Luansing, No. B210413

Trial court order denying defendant's motion to terminate his obligation to register as a sex offender based on his conviction for oral copulation with a person under the age of 16 is reversed and remanded where subjecting defendant to the mandatory sex offender registration violated his equal protection rights, since the nature of the sexual act alone determined whether the defendant received mandatory sex offender registration or if the trial court had discretion.   

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Appellate Information
APPEAL from a judgment of the Superior Court of Los Angeles County. David Wesley, Judge. Reversed and remanded with directions.
SECOND APPELLATE DISTRICT, DIVISION TWO
Filed August 11, 2009

Judges
Before DOI TODD, J., BOREN, P.J., CHAVEZ, J.
Opinion by DOI TODD, J.

Counsel
For Plaintiff: Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon, James William Bilderback II, Janet Neeley and A. Scott Hayward, Deputy Attorneys General.

For Defendant: Dennis L. Cava, under appointment by the Court of Appeal.   

People v. Hart, No. C057652

Conviction for attempted premeditated murder is reversed and remanded where, under the trial court's instructions with respect to the natural and probable consequences doctrine, the jury could have concluded that attempted unpremeditated murder and not attempted premeditated murder was a natural and probable consequence of the attempted robbery, and thus did not properly prepare the jury to determine the extent of defendant's culpability for the attempted murder. 

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Appellate Information
APPEAL from a judgment of the Superior Court of Yolo County, David Rosenberg, Judge. Reversed in part and affirmed in part.
THIRD APPELLATE DISTRICT
Filed August 11, 2009

Judges
Before NICHOLSON, Acting P.J., HULL, J., BUTZ, J.
Opinion by NICHOLSON, Acting P.J.

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

For Defendant: Marcia R. Clark.  

People v. Peyton, No. E044069

Convictions for committing a lewd act with duress, fear or force on a child under the age of 14 and aggravated sexual assault are reversed in part and affirmed in part where: 1) defendant's counsel's failure to object to the addition of the charge for committing a lewd act with duress, fear or force on a child under the age of 14 constituted ineffective assistance of counsel as it was an additional charge not pled in the amended complaint to which defendant waived his right to a preliminary hearing; and 2) the charges in his convictions for aggravated sexual assault were effectively pleaded in the amended complaint and such convictions were lawful.    


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Appellate Information
APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge. Affirmed in part and reversed in part with directions.
FOURTH APPELLATE DISTRICT, DIVISION TWO
Filed August 10, 2009

Judges
Before King, J., Hollenhorst, Acting P.J., Miller, J.
Opinion by King, J.

Counsel
For Plaintiff: Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr. and Angela M. Borzachillo, Deputy Attorneys General.

For Defendant: Jean Matulis, under appointment by the Court of Appeal.

Williams v. Southern California Gas Co., No. B210897

In an action for personal injuries involving a malfunctioning gas wall furnace, trial court judgment sustaining defendant's demurrer is affirmed where, although the court erred in sustaining the demurrer on the ground that discovery responses were inconsistent with the second amended complaint, the decision was still correct as defendant-utility did not owe plaintiff a duty of due care since it was a bystander and not under a duty to act.   

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Appellate Information
APPEAL from a judgment of the Superior Court of Los Angeles County, William Barry, Judge. Affirmed.
SECOND APPELLATE DISTRICT, DIVISION EIGHT
Filed August 10, 2009

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

Counsel
For Plaintiff: Law Offices of Barry Novack, Barry B. Novack and Jonathan Parrott.

For Defendant: Sabina B. Clorfeine.

Gilman v. Dalby, No. C050294

Trial court judgment is affirmed where the court correctly sustained a demurrer to plaintiff's cause of action for breach of fiduciary duty as the allegations of the complaint do not establish that defendants had a fiduciary duty to plaintiff, since awareness of a medical lien was not enough to create a fiduciary duty. Trial court's grant of summary judgment for defendant on a conversion cause of action is reversed where defendants presented no evidence that they had an attorney lien entitling them to deduct their litigation costs from the settlement recovery.    

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Appellate Information
APPEAL from a judgment after an order granting summary judgment of the Superior Court of Sacramento County, Loren E. McMaster, Judge. Reversed in part and remanded with directions.
THIRD APPELLATE DISTRICT
Filed August 10, 2009

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

Counsel
For Plaintiff: John Schlanger.

For Defendant: Dreyer, Babich, Buccola & Callaham, Steven M. Campora and Carolyn L. Katzorke.  

Imperial Merchant Services, Inc. v. Hunt, No. S163577

In a bankruptcy action decided on request of the United States Court of Appeals for the Ninth Circuit, the Supreme Court of California concludes that the statutory damages prescribed in Civil Code sec. 1719 are exclusive in the sense that a debt collector who recovers a service charge on a dishonored check pursuant to Civil Code sec. 1719 may not also recover prejudgment interest on damages under Civil Code sec. 3287. 

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Appellate Information
On Certification from the Ninth Circuit Court of Appeals.
Filed August 10, 2009

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

Counsel
For Plaintiff: Law Offices of Clark Garen and Clark Garen.

For Defendant: Paul Arons; The Berg Law Group, Irving L. Berg; Horwitz, Horwitz & Associates and O. Randolph Bragg III.

In re Marriage of Nurie, No. A121719

In an action involving jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act in an international custody dispute, trial court judgment is affirmed where the California court that dissolved the marriage properly assumed initial UCCJEA jurisdiction over the child custody matter as the son's home state, it never lost jurisdiction over the matter, and its order granting custody to husband was valid when entered and thus remains valid.   

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Appellate Information
APPEAL from Alameda County Super. Ct. No. FF03-102572.
FIRST APPELLATE DISTRICT, DIVISION TWO
Filed: August 7, 2009

Judges
Before Richman, J., Kline, P.J., Lambden, J.
Opinion by Richman, J.

Counsel
For Plaintiff: Law Offices of Seymour M. Rose, Theodore M. Amado.

For Defendant: Law Offices of Ann F. Van De Pol, Ann F. Van De Pol; Law Offices of Robert A. Goodman, Jean Greenbaum.

Sanchez v. County of San Bernadino, No. E045200

In an action for breach of contract, summary judgment for defendant on grounds that a confidentiality provision was void as against public policy is reversed where, although the County had a duty to disclose the severance agreement itself, it had no duty to disclose the circumstances that gave rise to the severance agreement, and any First Amendment right to make the disclosures was waived by the confidentiality provision.   

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Appellate Information
APPEAL from the Superior Court of San Bernardino County. W. Robert Fawke, Judge. Affirmed in part and reversed in part.
FOURTH APPELLATE DISTRICT, DIVISION TWO
Filed: August 7, 2009

Judges
Before RAMIREZ, P.J., GAUT, J., KING, J.
Opinion by RAMIREZ, P.J.

Counsel
For Plaintiff: Law Offices of Granowitz, White and Weber and Bradley R. White.

For Defendant: Wagner & Pelayes, Alice E. Waters and Dennis E. Wagner

People v. Neuman, No. E044869

Conviction for committing lewd and lascivious acts on a minor is affirmed where the trial court did not err in denying defendant's Wheeler/Batson challenge to the prosecutor's use of peremptories as "people of color" is not a cognizable group for purposes of a Wheeler/Batson motion, and defendant failed to make a prima facie showing of purposeful discrimination by the prosecutor in his use of  peremptories.    

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Appellate Information
APPEAL from the Superior Court of Riverside County. Stephen D. Cunnison, Judge. Affirmed.
FOURTH APPELLATE DISTRICT, DIVISION TWO
Filed: August 7, 2009

Judges
Before RAMIREZ, P.J., GAUT, J., KING, J.
Opinion by RAMIREZ, P.J.

Counsel
For Plaintiff: Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott C. Taylor and Marissa Bejarano, Deputy Attorneys General.

For Defendant: George L. Schraer, under appointment by the Court of Appeal.

People v. R.P., No. B208425

Juvenile court order continuing defendant as a ward of the state and imposing a probation condition prohibiting him from possessing any dangerous or deadly weapon is affirmed where: 1) there is no merit to defendant's claim that the probation condition is unconstitutionally vague as the condition has a plain common-sense meaning and is sufficiently precise for defendant to know what is required of him; and 2) the mere possibility peace officers may attempt to enforce the probation condition as a strict liability offense does not render the condition unconstitutional.    

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Appellate Information
APPEAL from an order of the Superior Court of Los Angeles County, Stephanie M. Davis, Judge. Affirmed.
SECOND APPELLATE DISTRICT, DIVISION THREE
Filed: August 7, 2009

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

Counsel
For Plaintiff: Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert M. Snider, Deputy Attorneys General.

For Defendant: Torres & Torres, Tonja R. Torres, under appointment by the Court of Appeal.

M.S. v. O.S., No. D053996

In a paternity action, trial court order requiring defendant to pay child support is reversed and remanded where: 1) the court did not abuse its discretion in including his speculative bonus income in his gross annual income for purposes of calculating child support; and 2) the court abused its discretion by including his Indian tribe's payment of his attorney fees in his gross annual income under Family Code sec. 4058 (a) for purposes of the guideline support calculation, as the payments go directly to his attorneys and are not part of his income or cash flow available for child support, and thus may be considered only under Family Code sec. 4057 as a circumstance potentially warranting an upward departure from the guideline amount.    

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Appellate Information
APPEAL from an order of the Superior Court of San Diego County, Maureen F. Hallahan, Judge. Reversed with directions.
FOURTH APPELLATE DISTRICT, DIVISION ONE
Filed: August 7, 2009

Judges
Before MCCONNELL, P.J., O'ROURKE, J., AARON, J.
Opinion by MCCONNELL, P.J.

Counsel
For Appellant: Matthew M. Kremer and Stephen Temko.

For Respondent: M.S. in pro. per.

Sasco Electric v. CA Fair Employment and Housing Comm'n, No. D053492

Trial court judgment denying petition for administrative mandate challenging a decision by the Fair Employment and Housing Commission finding the employer committed pregnancy discrimination in violation of the Fair Employment and Housing Act is affirmed where: 1) substantial evidence supports the Commission's finding that there was a causal connection between the employee's and plaintiff's decision to end her employment; 2) the Commission did not abuse its discretion in awarding the employee backpay between May 10 and September 17, 2004; 3) substantial evidence supports the Commission's award of emotional distress damages; and 5) substantial evidence supports the Commission's Commission's decision to impose an administrative fine as there was clear and convincing evidence of oppression and malice on plaintiff's part.   

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Appellate Information
APPEAL from a judgment of the Superior Court of San Diego County, David B. Oberholtzer, Judge. Affirmed.
FOURTH APPELLATE DISTRICT, DIVISION ONE
Filed July 15, 2009
Published: August 7, 2009

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

Counsel
For Plaintiff: Quadros & Johnson, Benjamin A. Johnson and S. Edward Slabach.

For Defendant: Edmund G. Brown, Jr., Attorney General, Louis Verdugo, Jr., Assistant Attorney General, Angela Sierra and Antonette Benita Cordero, Deputy Attorneys General.

Drummond v. Desmarais, No. H031659

In a malicious prosecution action against plaintiffs' former attorney, judgment dismissing the action is affirmed where: 1) the trial court did not err in granting the special motion to strike the action for malicious prosecution based upon defendant's probate petition for fees, as plaintiffs cannot establish a favorable termination of the matter on the merits; and 2) the court did not err in dismissing plaintiffs' malicious prosecution suit based on defendant's own malicious prosecution complaint against them because, although the evidence supports a finding that defendant acted maliciously and without probable cause in suing his clients, defendant's voluntary dismissal of the suit was a technical disposition and not a termination on the merits in plaintiffs' favor as required.    

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Appellate Information
APPEAL from Santa Clara County Super. Ct. No. CV068316.
SIXTH APPELLATE DISTRICT
Filed August 5, 2009

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

Counsel
For Plaintiff: Law Offices of Michael T. Morrissey, Michael T. Morrissey.

For Defendant: Willoughby, Stuart & Bening, Bradley A. Bening, Ellyn E. Nesbit, Law Offices of Michael G. Desmarais, Michael G. Desmarias.

People v. Nichols, No. C057665

Sentence for failure to register as a convicted sex offender is affirmed where defendant's indeterminate life sentence for failing to register within five days of moving does not violate federal and state constitutional prohibitions against cruel and/or unusual punishment as the failure to register thwarted the purpose of the registration act of being able to be located, and combined with the seriousness of his prior convictions and his sustained criminality, demonstrated that his sentence was not grossly disproportionate to his offense.    

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Appellate Information
APPEAL from a judgment of the Superior Court of Placer County, James D. Garbolino, Judge. Affirmed as modified.
THIRD APPELLATE DISTRICT
Filed August 5, 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, Charles A. French and Craig S. Meyers, Deputy Attorneys General.

For Defendant: Joseph Shipp, under appointment by the Court of Appeal.

In Re FairWageLaw, No. G040506

Trial court finding that defendant was not a party to the voluntary dissolution proceeding of a professional corporation of which he was a shareholder is reversed where: 1) defendant was sufficiently aggrieved by the judgment to appeal from it, regardless of whether he was a party to the dissolution proceeding; and 2) the court violated defendant's right to due process by adjudicating professional corporation's claim against him, since he was not a party to the voluntary dissolution proceeding.    

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Appellate Information
Appeal from a judgment of the Superior Court of Orange County, Frederick P. Horn, Judge. Reversed.
FOURTH APPELLATE DISTRICT, DIVISION THREE
Filed: August 4, 2009

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

Counsel
For Appellant: John M. Heurlin, in pro per.

For Respondent: Law Offices of Garrett S. Gregor and Garrett S. Gregor.

People v. Daniels, No. H032497

Conviction for kidnapping for rape and other crimes is affirmed where: 1) the trial court did not err in admitting evidence of defendant's earlier rape offense as the the risk of undue prejudice from its admission did not substantially outweigh its substantial probative value and the events were sufficiently similar to support an inference that defendant acted with the same intent on both occasions; 2) the court did not err in excluding expert testimony offered by the defense as the record supported a conclusion that the proposed testimony would have little probative value; and 3) the court did not err in its kidnapping instruction to the jury, and the evidence was sufficient to support his conviction.  

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Appellate Information
Appeal from an order of the Santa Clara County Super. Ct.
SIXTH APPELLATE DISTRICT
Filed: August 4, 2009

Judges
Opinion by Mihara, J., Elia, J., RUSHING, P.J.
Opinion by Mihara, J.
RUSHING, P.J., Dissenting

Counsel
For Appellant: Julie Schumer, Under Appointment by the Sixth District Appellate Program.

For Respondent: Edmund G. Brown, Jr., Attorney General of the State of California, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Linda M. Murphy, Deputy Attorney General

In re Marriage of Dietz, No. G040640

Trial court judgment ordering defendant's monthly spousal support obligation be reduced is reversed where the court erred in ordering the reduction as plaintiff's rights to access the retirement accounts on a penalty-free basis and to any increase in their values are insufficient to constitute a material change of circumstances permitting a reduction in her spousal support under Family Code sec. 4320.   

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Appellate Information
Appeal from a postjudgment order of the Superior Court of Orange County, Clay M. Smith, Judge. Reversed and remanded with directions.
FOURTH APPELLATE DISTRICT, DIVISION THREE
Filed: August 4, 2009

Judges
Opinion by FYBEL, J., O'LEARY, ACTING P.J., ARONSON, J.
Opinion by FYBEL, J.

Counsel
For Appellant: Law Offices of Marjorie G. Fuller and Marjorie G. Fuller.

For Respondent: Martin & McCormick, John D. Martin and Kathy J. McCormick.

Wynn v. Superior Court of Fresno County, No. F056975

Trial court order denying plaintiff's petition for an order correcting her original birth certificate is reversed where: 1) plaintiff qualifies as an interested person who may bring an action to adjudicate her parentage, and thus the trial court has the authority to adjudicate the facts concerning a possible biological relationship between mother and daughter; and 2) the trial court has the authority and the obligation to order the issuance of a new birth certificate if its determination of the existence of a biological mother-child relationship differs from that shown on the child's original birth certificate. 

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Appellate Information
APPEAL from a judgment of the Superior Court of Fresno County. David C. Kalemkarian, Judge.
FIFTH APPELLATE DISTRICT
Filed: August 4, 2009

Judges
Opinion by DAWSON, J., WISEMAN, Acting P.J., KANE, J.
Opinion by DAWSON, J.

Counsel
For Plaintiff: California Indian Legal Services, Michele R. Fahley and Dorinda Strmiska.

The trial court order issuing a writ of mandate invalidating an initiative measure amending a county's general plan and zoning regulations to permit a mixed use development near a county airport and prohibiting its enforcement is reversed where: 1) the initiative is within the power of the electorate and is legislative in its nature; and 2) the initiative measure is not preempted by the State Aeronautics Act as the Act does not fully occupy the field of land use regulation near airports, and does not delegate exclusive authority to the board of supervisors to make land use decisions in an airport land use plan area.    

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Appellate Information
Appeal from San Luis Obispo County Super. Ct. No. CV70164.
SECOND APPELLATE DISTRICT
Filed: August 4, 2009

Judges
Before PERREN, J., YEGAN, Acting P.J., COFFEE, J.
Opinion by PERREN, J.

Counsel
For Appellant: Warren R. Jensen, County Counsel, James B. Orton, Deputy County Counsel.

For Respondent: Shute, Mihaly & Weinberger LLP, Rachel B. Hooper, Ellison Folk and Kevin P. Bundy.

People v. Perez, No. B213114

Probation condition imposed after conviction for second degree robbery is reversed where a condition prohibiting defendant from attending any court hearing or being within 500 feet of any court in which he is neither a defendant nor under subpoena is overbroad and imposes unnecessary restrictions on his right to access the courts and government offices. 

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Appellate Information
Appeal from Superior Court of Ventura County.
SECOND APPELLATE DISTRICT, DIVISION SIX
Filed: August 4, 2009

Judges
Before GILBERT, P.J., YEGAN, J., COFFEE, J.
Opinion by GILBERT, P.J.

Counsel
For Plaintiff: Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Julie A. Harris, Deputy Attorney General.

For Defendant: Duane A. Dammeyer, Public Defender, Michael C. McMahon, Chief Deputy

In a dispute involving insurance liability coverage, court of appeals judgment is reversed where defendant had no duty to defend its insured party in the lawsuit brought against him by defendant as an insured party's unreasonable belief in the need for self-defense does not turn the resulting purposeful and intentional act of assault and battery into an "accident" within the policy's coverage clause.   

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Appellate Information
Appeal from Los Angeles County Super. Ct. No. VC045588.
Filed August 3, 2009

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

Counsel
For Plaintiff: Glaser & Damone, Glaser, Damone & Schroeder and Robert P. Damone.

For Defendant: Reed Smith, Margaret Grignon, Judith E. Posner; Ford, Walker, Haggerty & Behar, Timothy L. Walker, Donna Rogers Kirby, Maxine J. Lebowitz and K. Michele Williams.

Hernandez v. Hillsides, Inc., No. S147552

In a tort action alleging intrusion into a protected place, interest, or matter, and violations of the right to privacy, court of appeals judgment reversing summary judgment for defendants is reversed where plaintiffs did not establish that defendants' challenged conduct was highly offensive and constituted an egregious violation of prevailing social norms, as activation of a surveillance system was narrowly tailored in place, time, and scope and was prompted by legitimate business concerns, and plaintiffs were not at risk of being monitored or recorded during regular work hours and were never actually caught on camera or videotape.   

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Appellate Information
Appeal from Los Angeles County Super. Ct. No. GC032633.
Filed August 3, 2009

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

Counsel
For Appellant:  Eisenberg & Associates, Arnold Kessler and Mark S. Eisenberg.

For Respondent: Seyfarth Shaw, Laura Wilson Shelby, Holger G. Besch, Candice Zee and Amy C. Chang.