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

September 2009 Archives

In plaintiff's action against an Air Quality Management District (district), challenging the district's 2002 amendments to its rule limiting the amount of volatile organic compounds allowed in various kinds of paint and coatings, denial of plaintiff's petition for administrative writ of mandate is affirmed except where: 1) as to the quick-dry enamels and rust preventive categories of coatings, the matter is remanded to the trial court for a hearing to determine whether there is any current state of the art technology available to comply with the district's 2006 limits on volatile compounds; and 2) if the trial court determines that there is not, the trial court shall grant the relief requested by petitioner as to these two categories of coatings only. 

Read Nat'l Paint & Coatings Ass'n. Inc. v. S. Coast Air Quality Mgmt. Dist.

Appellate Information

Filed September 29, 2009

Judges

Opinion by Judge Sills

Counsel

For Appellant:  Fulbright & Jaworski, Jeffrey B. Margulies and William L. Troutman

For Appelle:   Shute, Mihaly & Weinberger, Matthew D. Zinn; Daniel P. Selmi; Kurt R. Weise, Barbara B. Baird and William B. Wong

People v. Smith, No. A118208

Trial court's conviction of defendant for robbing a jewelry store is affirmed as, when the owner of a store consents to an "inside job" robbery that occurs while the store is under the control of employees who are unaware of the owner's plan, the owner's consent does not vitiate the felonious taking element of robbery.  Thus, if the property that is taken was in the possession of the owner's innocent employees or agents, that is sufficient to make the taking felonious, even if the owner himself is secretly in league with the perpetrators.     

Read People v. Smith, No. A118208

Appellate Information

Filed September 29, 2009

Judges

Opinion by Judge Ruvolo

Counsel

For Appellant:  First District Appellate Project, Hilda Ellen Scheib  

For Appellee:   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, Stan Helfman, Supervising Deputy Attorney General, Jeffrey M. Laurence, Deputy Attorney General

Estate of Pryor, No. B207402

In an appeal involving presumptive disqualification of a care custodian from receiving a donative transfer from a dependent or elder adult, trial court's judgment against the daughter of comedian Richard Pryor and in favor of stepmother is affirmed as there is no support in the language of section 21351(a) or in the legislative history which would make the spousal exception to the presumption of invalidity unavailable to a spouse who allegedly persuaded the transferor to marry through undue influence or fraud.     

Read Estate of Pryor, No. B207402

Appellate Information

Filed September 29, 2009

Judges

Opinion by Judge Epstein

Counsel

For Appellant:  Holland & Knight, Bruce S. Ross, Linda Rottman and Vivian L. Thoreen

For Appelle:  Kibre & Horwitz, Howard L. Horwitz and Eric G. Stockel

Cook v. Cook, No. B205793

Probate court's finding that beneficiary's pleading violated the no-contest clause provision of the Trust, thereby causing his disinheritance pursuant to the Trust terms is affirmed as beneficiary's argument that his debt is unenforceable violates the trust's no-contest provision. 

Read Cook v. Cook, No. B205793

Appellate Information

Filed September 29, 2009

Judges

Opinion by Judge Gilbert

Counsel

For Appellant:  The Law Office of John Derrick, John Derrick

For Appelle:  Law Offices of Mary P. Kulvinskas, Mary P. Kulvinskas; Law Offices of Robert H. Pourvali, Robert H. Pourvali

People v. Thompson, No. A123269

Trial court's finding that defendant was subject to mandatory registration as a sex offender under Penal Code section 290 based on a sodomy conviction is reversed and remanded as an order imposing mandatory sex offender registration on defendant due to his conviction for a mutually voluntary act of sodomy with a 17-year-old minor violates his right to equal protection, as guaranteed by the federal and California Constitutions.    

Read People v. Thompson, No. A123269

Appellate Information

Filed September 29, 2009

Judges

Opinion by Judge Margulies

Counsel

For Appellant:  Jeffrey S. Kross, under appointment by the Court of Appeal

For Appelle:  Edmund G. Brown, Jr., Attorney General, Gerald A. Engler, Assistant Attorney General, Martin S. Kaye and Christopher W. Grove, Deputy Attorneys General

RC Royal Dev. & Realty Corp. v. Standard Pacific Corp., No. B206894

Trial court erred in granting summary judgment against plaintiff-broker on the breach of contract cause of action as the broker earned its commission at the time the defendant-buyer entered into the buy-sell contract and the close of escrow was not a condition precedent to the right to a commission.     

Read RC Royal Dev. & Realty Corp. v. Standard Pacific Corp., No. B206894

Appellate Information

Filed September 29, 2009

Judges

Opinion by Judge Aldrich

Counsel

For Appellant:  Esner, Chang & Ellis, Stuart B. Esner and Holly N. Boyer

For Appelle:  Green & Hall, Robert L. Green and John T. Griffin

People v. Strider, No. B204571

Trial court's conviction of defendant for drug possession with a firearm is reversed as the court erred by denying defendant's pretrial suppression motion because the fenced yard was not a public place within the meaning of Penal Code section 12031.     

Read People v. Strider, No. B204571

Appellate Information

Filed September 29, 2009

Judges

Opinion by Judge Aldrich

Counsel

For Appellant:  Willoughby & Associates, W. Anthony Willoughby and Ronnivashti Whitehead

For Appelle:  Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Douglas L. Wilson, Deputy Attorneys General

Trial court's grant of School District's petition for writ of mandate to proceed with termination of a High School music teacher's refusal to obtain certification to teach English learners is affirmed as the District had the authority under Education Code section 35160 to require teachers to obtain the certification in order to comply with the mandates imposed on it by the Legislation.  Therefore, defendant's specific arguments are rejected.   

Read Governing Bd. of Ripon Unified Sch. Dist. v. Comm'n on Prof'l Conduct, No. C058815

Appellate Information

Filed September 29, 2009

Judges

Opinion by Judge Nicholson

Counsel

For Appellant:  Driscoll & Associates and Thomas J. Driscoll, Jr.

For Appelle:  Atkinson, Andelson, Loya, Ruud & Romo, Chesley D. Quaide and Marleen L. Sacks

In re Marriage of Lyustiger, No. C057861

In divorce proceedings, trial court's grant of wife's motion to enforce two orders of a British domestic relations court requiring the husband to pay a total of 50,000 pounds for wife's attorney fees based on the Uniform Foreign Money-Judgments Recognition Act (Act), is reversed as the Act specifically excludes from its scope the enforcement of support in matrimonial or family matters, and the award of attorney's fees was in the nature of support. 

Read In re Marriage of Lyustiger, No. C057861

Appellate Information

Filed September 29, 2009

Judges

Opinion by Judge Nicholson

Counsel

For Appellant:  Akin Gump Strauss Hauer & Feld, Rex S. Heinke and Azra Hot

For Appelle:  William D. Kopper

Merrill v. Leslie Controls, Inc., No. B200006

In plaintiff's products liability lawsuit for injuries caused by exposure to asbestos-containing products aboard United States Navy vessels, trial court's judgment for plaintiffs is reversed where plaintiffs have not shown that defendant manufactured, supplied, or distributed the products which caused his exposure to asbestos.  Therefore, under Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal. App. 4th 546, defendant is not liable in strict liability for failing to warn of the dangerous properties of those products or for a design defect in those products.     

Read Merrill v. Leslie Controls, Inc., No. B200006

Appellate Information

Filed September 25, 2009

Judges

Opinion by Judge Kitching

Counsel

For Appellant:  Simon, Eddins & Greenstone, Brian P. Barrow for Plaintiffs and Appellants

For Appelle:  Gordon & Rees, James G. Scadden, Don Willenburg; Munger, Tolles & Olson, Mark H. Epstein, Paul J. Watford and Julie D. Cantor for Defendant and Appellant Leslie Controls, Inc.

In re M.M., No. E045714

Juvenile court's conviction of a minor for resisting a public officer under Penal Code section 148(a)(1) arising from a vandalism charge is reversed where, as a matter of law, a campus security officer is not a public officer for purposes of section 148.     

Read In re M.M., No. E045714

Appellate Information

Filed September 24, 2009

Judges

Opinion by Judge McKinster

Counsel

For Appellant:  Lauren E. Eskenazi, under appointment by the Court of Appeal

For Appelle:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General

People v. Benhoor, No. B212593

Trial court's denial of defendant's motion to dismiss the citation for driving at an unsafe speed and conviction of the infraction is affirmed where, although the trial court violated Rule 4.210(b)(7) by failing to bring defendant to trial within 45 days of receipt of his request for a new trial, the violation does not require dismissal of the citation.   

Read People v. Benhoor, No. B212593

Appellate Information

Filed September 24, 2009

Judges

Opinion by Judge Perluss

Counsel

For Appellant:  Law Offices of Hamid Soleimanian and Hamid Soleimanian

For Appelle:  Rockard J. Delgadillo, Los Angeles City Attorney, Debbie Lew, Assistant City Attorney, and Eric Shannon, Deputy City Attorney

Ricketts v. McCormack, No. B210123

In a putative class action lawsuit against the County of Los Angeles and its registrar-recorder claiming failure to fulfill the statutory duties under Civil Code section 2941(c) to stamp and record reconveyances within two business days as required, trial court's judgment in favor of the defendants is affirmed as the indexing is a distinct function, separate from recording a document, and is not part of section 2941(c)'s stamp-and-record requirement.       

Read Ricketts v. McCormack, No. B210123

Appellate Information

Filed September 24, 2009

Judges

Opinion by Judge Perluss

Counsel

For Appellant:  Hodges and Associates, A. Clifton Hodges and James S. Kostas

For Appelle: Robert E. Kalunian, Acting County Counsel, Steven J. Carnevale, Senior Assistant County Counsel, and Nancy M. Takade, Principal Deputy; Jones Day, Elwood Lui, Brian D. Hershman, John S. Sasaki and Peter E. Davids

People v. Contreras, No. F056089

Conviction of defendant for drug possession and enhanced sentence based on prior conviction for controlled substance is affirmed where: 1) defendant's claim that his sentencing was delayed in violation of state and federal constitution is without merit as the record shows abundant justification for the delay which was not presumptively prejudicial; and 2) defendant's ineffective assistance of counsel claim is meritless.   

Read People v. Contreras, No. F056089

Appellate Information

Filed September 23, 2009

Judges

Opinion by Judge Gomes

Counsel

For Appellant:  Tara K. Hoveland, under appointment by the Court of Appeal

For Appelle:  Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and John A. Bachman, Deputy Attorneys General

Hylton v. Frank E. Rogozienski, Inc., No. D053371

In plaintiff's legal malpractice action against his former attorney seeking damages and rescission of a contingency fee contract, trial court's denial of defendant's anti-SLAPP motion is affirmed as: 1) the trial court correctly ruled that defendant had not met his threshold burden of showing that plaintiff's claims arise from petitioning activity within the purview of the anti-SLAPP statute; and 2) this rendered unnecessary any consideration of defendant's arguments that plaintiff failed to show probable success on the merits. 

Read Hylton v. Frank E. Rogozienski, Inc., No. D053371

Filed September 23, 2009

Judges

Opinion by Judge McDonald

Counsel

For Appellant:  Frank E. Rogozienski, Inc., Frank E. Rogozienski; Seltzer Caplan McMahon Vitek and Gerald L. McMahon

For Appelle:  Stephen M. Hogan; Herron & Steele and Matthew V. Herron

Clement v. Alegre, No. A123168

Trials court's imposition of discovery sanctions against plaintiffs for interposing objections to special interrogatories propounded by defendants is affirmed as sanctions were warranted where plaintiffs' objection to the term "economic damages" was without substantial justification and their responses to those interrogatories were evasive.   

Read Clement v. Alegre, No. A123168

Appellate Information

Filed September 23, 2009

Judges

Opinion by Judge Kline

Counsel

For Appellant:  Samuel Goldstein & Associates, Samuel Elliot Goldstein, Law Offices of Stephanie J. Finelli, Stephanie Finelli

For Appelle:  Belzer, Hulchiy & Murray, Nicholas P. Hulchiy, Steven Barry Piser.

Morgan v. AT&T Wireless Servs., Inc., No. B206788

In a consumer class action against defendant AT&T Wireless Services (AT&T) based on its marketing and sale of premium cell phones that operated on a wireless network that AT&T allegedly modified in a manner that rendered those premium cell phones essentially useless, trial court's ruling against plaintiffs is affirmed in part and reversed in part where: 1) trial court erred by sustaining AT&T's demurrer to plaintiffs' cause of action as there are sufficient facts alleged to show both a violation of the Unfair Competition Law (UCL) and plaintiffs have standing to bring this claim; 2) trial court did not err by sustaining the demurrer to the False Advertising Law (FAL) cause of action as plaintiffs failed to establish that they lost money or property as a result of AT&T's offer; 3) trial court erred by sustaining the demurrer for failure to comply the Consumers Legal Remedies Act (CLRA) notice requirements; and 4) plaintiffs alleged their fraud claim with sufficient specificity. 

Read Morgan v. AT&T Wireless Servs., Inc., No. B206788

Appellate Information

Filed September 23, 2009

Judges

Opinion by Judge Willhite

Counsel

For Appellant: Kirtland & Packard and Robert K. Friedl

For Appelle:  Eagan O'Malley & Avenatti, John C. O'Malley, Call, Jensen & Ferrell and Lisa A. Wegner

People v. Moore, No. C060618

Trial court's order to pay victim restitution pursuant to Penal Code section 1202.4 including lost wages arising from a conviction for burglary is affirmed as, even though the victim did not testify as a witness, the wages that he lost while attending criminal court proceedings constituted economic loss attributable to defendant's misconduct. 

Read People v. Moore, No. C060618

Appellate Information

Filed September 23, 2009

Judges

Opinion by Judge Scotland

Counsel

For Appellant: Richard L. Fitzer, under appointment by the Court of Appeal

For Appelle:  Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon, Supervising Deputy Attorney General, and Paul E. O'Connor, Deputy Attorney General

Reycraft v. Lee, No. E046248

In plaintiff's case against defendants seeking damages under the California Disabled Persons Act (DPA) claiming she was prohibited from using certain facilities at a mobile and RV park due to their non-compliance with the Americans with Disabilities Act Accessibility Guidelines (ADAAG), trial court's ruling in favor of the defendants is affirmed as plaintiff does not have standing to maintain a cause of action against defendants for monetary relief because she was not a registered guest of her sister-in-law and did not pay a guest fee. 

Read Reycraft v. Lee, No. E046248

Appellate Information

Filed September 23, 2009

Judges

Opinion by Judge Ramirez

Counsel

For Appellant:  Russell C. Handy

For Appelle:  Leonard J. Cravens

City of Claremont v. Kruse, No. B210084

Trial court's order issuing a permanent injunction preventing defendants from operating a medical marijuana dispensary within the city is affirmed as the trial court's determination that defendants' operation constituted a nuisance per se was based not on violations of state law, but rather, on violation of the city's municipal code.  Furthermore, city's Land Use and Development Code expressly prohibits any use that is not specifically enumerated therein or that cannot easily be categorized as an enumerated use.  Finally, the Compassionate Use Act and the Medical Marijuana Program does not preempt the city's enactment of the moratorium or the enforcement of local zoning and business licensing requirements.   

Read City of Claremont v. Kruse, No. B210084

Appellate Information

Filed September 23, 2009

Judges

Opinion by Judge Chavez

Counsel

For Appellant:  Law Office of Burton Mark Senkfor and Burton Mark Senkfor; Allison B. Margolin

For Appelle:  Jeffrey V. Dunn, Sonia R. Carvalho, and Marc S. Erlich of Best Best & Krieger LLP

Hearn v. Howard, No. B208782

In a claim for legal malpractice, trial court's denial of defendant's motion to vacate entry of default and a default judgment against her on the complaint filed by the plaintiffs is affirmed as there is no basis to conclude that the trial court abused its discretion.  However, the judgment is modified to omit $15,000 in attorney fees because that amount was not specified in the complaint.   

Read Hearn v. Howard, No. B208782

Appellate Information

Filed September 23, 2009

Judges

Opinion by Judge Todd

Counsel

For Appellant:  Lisa M. Howard, in pro. per

For Appelle:  Parker Shumaker Mills and Howard M. Fields

People v. Hernandez, No. F055430

Trial court's imposition of enhanced sentencing on a defendant convicted of receiving stolen property while on a release from custody on his own recognizance (O.R.) is vacated as Penal Code section 1318 was not complied with in connection with defendant's release from custody and defendant did not commit a new felony while on an O.R. release.  Therefore, since defendant's release did not qualify as an O.R. release under applicable law, the enhancement findings under section 12022.1 were not supported by the evidence.     

Read People v. Hernandez, No. F055430

Appellate Information

Filed September 23, 2009

Judges

Opinion by Judge Kane

Counsel

For Appellant:  Jagdish J. Bijlani, under appointment by the Court of Appeal

For Appelle:  Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Leanne LeMon, Deputy Attorneys General

Manela v. Superior Court, No. B214447

In a marital dissolution action involving a discovery dispute over child custody, wife's petition for mandate, challenging a trial court's granting of the husband's motion to quash wife's subpoenas of medical records on the ground that the documents were protected by the physician-patient privilege, is granted in part and denied in part where: 1) the trial court abused its discretion by quashing the subpoena to a doctor where the statements were made in the wife's presence and therefore not protected by the privilege; 2) the husband's claim that his medical records are protected by his constitutional right to privacy is rejected as this right is not absolute and his privacy interests are outweighed by the state's compelling interest in protecting the child's best interests; and 3) the trial court did not abuse its discretion with respect to quashing the subpoena to a subsequent doctor because the documents sought by the wife were privileged.  

Read Manela v. Superior Court, No. B214447

Appellate Information

Filed September 23, 2009

Judges

Opinion by Judge Kitching

Counsel

For Appellant: Gary J. Cohen 

For Appelle:  Law offices of Alexandra Leichter and Alexandra Leichter; Law Offices of Ariel Leichter-Maroko and Ariel Leichter-Maroko for Real Party In Interest

Lee v. Superior Court, No. G041511

Defendants' petitions for writ of prohibition/mandate arising from the district attorney's proceedings for civil commitment against them as sexually violent predators (SVP) are granted as Code of Civil Procedure section 1985(b) requires that a subpoena duces tecum be served with an affidavit setting forth in full detail the materiality of the items sought by the subpoena, and thus, the trial court erred by ordering Coalinga State Hospital (CHS) to comply with the issued subpoenas and with unspecified future subpoenas containing similar subject matters.  A writ of mandate is issued commanding the trial court to: 1) vacate its orders releasing records; 2) return any documents produced by CSH or the Department of Corrections and Rehabilitation in response to the subject subpoenas (other than documents produced pursuant to section 6603(c)(1); and 3) issue an order permitting the medical staff of CHS to disclose confidential health information to the extent permitted by section 6603(c)(1).   

Read Lee v. Superior Court, No. G041511

Appellate Information

Filed September 22, 2009

Judges

Opinion by Judge Sills

Counsel

For Appellant:  Deborah A. Kwast, Public Defender, Thomas Havlena and Jean Wilkinson, Chief Deputy Public Defenders, Kevin J. Phillips and Denise Gragg, Assistant Public Defenders, and Robert F. Kohler, Deputy Public Defender, for Petitioners Richard Allen Lee, John Patrick Semeneck, Ross William Rabuck, Jr., Robert Eldred Morehead, and William Sabatasso.

For Appelle:  Tony Rackauckas, District Attorney, and Matthew Lockhart, Deputy District Attorney, for Real Party in Interest

Carolyn v. Orange Park Cmty. Ass'n., No. G041177

In plaintiff's suit against a community association involving his desired use of certain recreational trails within portions of common areas, summary judgment in favor of the association is affirmed as the trails are not a public accommodation within the definition of the ADA, California Disabled Persons Act, Unruh Act, Government Code section 4450 and Health and Safety Code section 1995, and a private property owner does not convert a private recreational property into a public accommodation by failing to actively deny the public access to the recreational property. 

Read Carolyn v. Orange Park Cmty. Ass'n., No. G041177

Appellate Information

Filed September 21, 2009

Judges

Opinion by Judge Ikola

Counsel

For Appellant:  Law Offices of B. Paul Husband and B. Paul Husband; and Cheryl Alison Skigin

For Appelle:  Kulik, Gottesman, Mouton & Siegel and Mitchell S. Brachman

Tichinin v. City of Morgan Hill, No. H031019

In plaintiff's 42 U.S.C. section 1983 suit against a city for adopting a resolution condemning him for hiring a private investigator to conduct surveillance of the city manager, trial court's grant of city's anti-SLAPP motion is reversed as plaintiff's 1983 action is based on conduct that qualifies for protection under the anti-SLAPP statute and  plaintiff made a prima facie showing of success on the merits where his evidence would support findings that: 1) he was engaged in conduct protected by the First Amendment rights to petition and right of free speech; 2) the city took adverse action in response to his conduct with the intent to retaliate against him and deter that conduct; and 3) the city's adverse action caused injuries that would deter a person of ordinary firmness from engaging in that conduct. 

Read Tichinin v. City of Morgan Hill, No. H031019

Appellate Information

Filed September 21, 2009

Judges

Opinion by Judge Rushing

Counsel

For Appellant: Mesirow & Fink, Steven M. Fink, Law Offices of Bruce Tichinin, Bruce Tichinin For Appelle:   Burton, Volkmann & Schmal, Timothy J. Schmal, Burleigh E. Sabin

Powers v. Pottery Barn, Inc., No. D054336

In a consumer class action case against Pottery Barn, trial court ruling sustaining defendant's demurrer is reversed as the Song-Beverly Credit Card Act of 1971's regulation of what may be asked of credit card customers is not a regulation of what can be sent in commercial e-mails and is not in any manner specific to e-mail, and thus, Song-Beverly is not preempted by the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (CAN-SPAM). 

Read Powers v. Pottery Barn, Inc., No. D054336

Appellate Information

Filed September 21, 2009

Judges

Opinion by Judge Benke

Counsel

For Appellant:  Harrison Patterson O'Connor & Kinkead, James R. Patterson, Harry W. Harrison and Cary A. Kinkhead; Lindsay & Stonebarger, Gene J. Stonebarger, James M. Lindsay and Richard D. Lambert

For Appelle:  Sheppard, Mullin, Richter & Hampton, Phillip Craig Cardon and Elizabeth S. Berman

O'Neil v. Crane Co., NO. B208225

In plaintiffs' action against the defendants on behalf of a decedent who died of mesothelioma, trial court's grant of defendants' motion for nonsuit is reversed where: 1) the component parts defense does not apply in this case where defendants made separate products with a specific purpose and use; and 2) defendants can be held strictly liable for injury caused  by dust emanating from replacement asbestos.  Finally, Taylor v. Elliot Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 546 , was wrongly decided as its holding is contrary to the rule that a manufacturer is liable for the dangers of its product's components.   

Read O'Neil v. Crane Co., NO. B208225

Appellate Information

Filed September 18, 2009

Judges

Opinion by Judge Mosk

Counsel

For Appellant: Waters Kraus & Paul, Paul C. Cook, Michael B. Gurien

For Appelle:  K&L Gates, Raymond L. Gill, Robert E. Feyder, Geoffrey M. Davis

S.T. v. Superior Court, No. B216686

Petition for extraordinary writ by an incarcerated father to vacate the order of the juvenile court issued at a hearing terminating his reunification services and setting a permanency planning hearing as to his daughter is granted as trial court has discretion at the six-month review to continue or terminate reunification services.  

Read S.T. v. Superior Court, No. B216686

Appellate Information

Filed September 18, 2009

Judges

Opinion by Judge Mallano

Counsel

For Appellant:  Law Offices of Alex Iglesias, Steven D. Shenfeld and Karen Rose.

For Appelle:  No appearance respondent.

Delois v. Barrett Block Partners, No. A121665

In a landlord-tenant dispute, trial court's grant of defendants' SLAPP motion in striking plaintiff's six of ten causes of action is reversed where the defendants' section 425.16 motion in the trial court did not, on the facts and pleadings of the case, satisfy the first prong of that statute and therefore, the trial court erred in granting it as to any of the causes of action in plaintiff's complaint.   

Read Delois v. Barrett Block Partners, No. A121665

Appellate Information

Filed September 18, 2009

Judges

Opinion by Judge Kline

Counsel

For Appellant: Julian T. Lastowski, Law Offices of Julian T. Lastowski

For Appelle:  Andrew M. Zacks, James B. Kraus, Zacks & Utrecht, P.C.

CA. Native Plant Soc'y v. City of Santa Cruz, No. H032502

Denial of a petition for review of a city's approval of a master plan for a city-owned greenbelt property and the environmental impact report (EIR), is affirmed where: 1) there is no violation of the California Environmental Quality Act's procedural mandates; and 2) there is substantial evidence in the administrative record to support the city's determination that the alternatives analyzed int he EIR were infeasible.   

Read CA. Native Plant Soc'y v. City of Santa Cruz, No. H032502

Appellate Information

Filed September 18, 2009

Judges

Opinion by Judge Duffy

Counsel

For Appellant: Wittwer & Parkin, William P. Parkin, Jonathan Wittwer, Jennifer Bragar

For Appelle:   Remy, Thomas, Moose & Manley, James G. Moose, Amy R. Higuera, Atchison, Barisone, Condotti & Kovacevich, John G. Barisone

Tracy First v. City of 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: 1) 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; 2) Tracy First failed to exhaust its administrative remedies on its claim that the EIR included alternatives that did not reduce the environmental impacts its arguments fails on the merits that the EIR omitted a reduced store-size alternative; 3) plaintiff's claim that the City failed to proceed in a manner required by the law is without merit; and 4) the city did not fail to proceed in the manner required when it found that the impact on extraterritorial intersections was significant and unavoidable.   

Read Tracy First v. City of Tracy, No. C059227

Appellate Information

Filed September 18, 2009

Judges

Opinion by Judge Scotland

Counsel

For Appellant:  Herum Crabtree, Steven A. Herum, Brett S. Jolley, Kerri K. Foote, and Natalie M. Weber for Plaintiff and Appellant.   

Cox, Castle & Nicholson, Andrew B. Sabey and Sarah E. Owsowitz for Real Party in Interest and Appellant.

For Appelle:   Debra E. Corbett and Daniel G. Sodergren, City Counsel; Jarvis, Fay & Doporto, Rick W. Jarvis and Andrea J. Saltzman

In re Edward Q., No. G041281

Juvenile court's conclusion that defendant brought marijuana into juvenile hall is reversed and remanded as the person who brings a controlled substance or other contraband into juvenile hall is properly charged under Welfare and Institutions Code section 871.5, not Penal Code section 4573.       

Read In re Edward Q., No. G041281

Appellate Information

Filed September 17, 2009

Judges

Opinion by Judge Fybel

Counsel

For Appellant:  R. Charles Johnson

For Appelle:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Melissa Mandel, Deputy Attorneys General

Cooper v. State Farm Mutual Auto. Ins. Co., No. E047002

In plaintiff's suit against his insurance company for disposing of evidence that was to be used against a tire manufacturer in a product liability suit, trial court's grant of defendant's motion for nonsuit is reversed where: 1) plaintiff set forth a prima facie case that he relied to his detriment on State Farm's promise to preserve the tire; 2) plaintiff's opening statement referred to sufficient prima facie evidence to create a strong inference that the tire was defective and had it not been destroyed, plaintiff would have been able to prove his case against the tire manufacturer; 3) under the present facts, plaintiff's damages are reasonably ascertainable; and 4) plaintiff's pleadings, in conjunction with his opening statement, encompass the legal concepts of promissory estoppel and/or a voluntary undertaking by State Farm.      

Read Cooper v. State Farm Mutual Auto. Ins. Co., No. E047002

Appellate Information

Filed September 17, 2009

Judges

Opinion by Judge King

Counsel

For Appellant: McCune Wright, Richard D. McCune and Kristy M. Arevalo

For Appelle:  Berger Kahn, Sherman M. Spitz, David B. Ezra, and Jeffrey S. Crowe

United Teachers Los Angeles v. Los Angeles Unified Sch. Dist., No. B214119

Trial court's denial of the United Teachers Los Angeles' (union) petition to compel arbitration of a dispute with Los Angeles Unified School District (district) over alleged collective bargaining agreement violations is reversed where as the charter school provision of the collective bargaining agreement is not preempted by section 47611.5(e) of the Education Code.     

Read United Teachers Los Angeles v. Los Angeles Unified Sch. Dist., No. B214119

Appellate Information

Filed September 17, 2009

Judges

Opinion by Judge Turner

Counsel

For Appellant:  Holguin, Garfield & Martinez, Jesus Quinonez and John J. Kim

For Appelle:   Miller Brown & Dannis and Sue Ann Salmon Evans

Vons Co., Inc. v. Lyle Parks, Jr., Inc., No. B208335

In a case involving a construction contract of a shopping center, trial court's judgment is affirmed in part and reversed in part and remanded where: 1) trial court erred in refusing to award litigation costs to Vons who had prevailed on two causes of action assigned to it by the original plaintiff, and thus the case is remanded for purposes of determining what costs were reasonably necessary to the conduct of the litigation; and 2) trial court did not err in denying Von's motion for an award of attorney's fees under Civil Code section 1717, because the warranty on which the plaintiff's claims were based contained no attorney's fees provision.       

Read Vons Co., Inc. v. Lyle Parks, Jr., Inc., No. B208335

Appellate Information

Filed September 17, 2009

Judges

Opinion by Judge Bendix

Counsel

For Appellant:  Ropers, Majeski, Kohn, Bently PC, James A. Lassart, Adrian G. Driscoll and Suzanne E. Rischman

For Appelle:  Lorber, Greenfield & Polito, Bruce W. Lorber, Steven M. Polito and David B. Roper

Las Lomas Land Co., LLC v. City of Los Angeles, No. B213637

Trial court's judgment dismissing plaintiff's petition for writ of mandate and complaint against the City of Los Angeles (city) involving city's termination of its environmental review and rejection of a proposed development project is affirmed where: 1) the pleading fails to adequately allege due process and equal protection violations; 2) the sustaining of the demurrer was proper; and 3) plaintiff cannot seek leave to amend for the first time on appeal having expressly declined an opportunity to amend its pleading in the trial court.       

Read Las Lomas Land Co., LLC v. City of Los Angeles, No. B213637

Appellate Information

Filed September 17, 2009

Judges

Opinion by Judge Croskey

Counsel

For Appellant:  Akin Gump Strauss Hauer & Feld, Carlyle W. Hall, Jr., John A. Karaczynski, Edward P. Lazarus, Andrew Oelz; Alston & Bird, Steven W. Weston, Nicki Carlsen, Neal P. Maguire and Rebecca S. Harrington

For Appelle:  Rockard J. Delgadillo, City Attorney, Susan D. Pfann, Assistant City Attorney, Meyers, Nave, Riback, Silver & Wilson, Amrit S. Kulkarni and Julia L. Bond

Garcia v. Superior Court, No. H033111

Defendant's request for issuance of writ of mandate directing the trial court to vacate its order denying his section 995 motion to set aside one of the counts is granted as the trial court erred by allowing the prosecutor to present revised testimony in order to fill an evidentiary vacuum concerning the gravamen of the offense.       

Read Garcia v. Superior Court, No. H033111

Appellate Information

Filed September 17, 2009

Judges

Opinion by Judge McAdams

Counsel

For Appellant:  James S. Egar, Monterey County Public Defender, Michelle C. Wouden, Deputy Public Defender

For Appelle:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Stan Helfman, Supervising Deputy Attorney General, Sharon G. Birenbaum, Deputy Attorney General

Dietz v. Meisenheimer & Herron, No. D052463

In an attorney-plaintiff's case against a law firm for breach of contract to pay contingent fee for referring a client and related claims, trial court's judgment in favor of plaintiff is affirmed as defendant's right to due process was not violated by the trial court's refusal to dismiss the action on the ground that defendant could not present a defense without violating ethical duties it owed to a client to preserve confidentiality. Furthermore, defendant forfeited its contention that plaintiff's claims are barred as a matter of law because defendant has not demonstrated that it preserved in the trial court any of its arguments in support of this contention.    

Read Dietz v. Meisenheimer & Herron, No. D052463

Appellate Information

Filed September 17, 2009

Judges

Opinion by Judge Aaron

Counsel

For Appellant:  Stephen M. Hogan

For Appelle:  Geraci Lopez, and Stephen F. Lopez

Classis of Cent. CA. v. Miraloma Comty. Church, No. A122540

In a case involving a local church's effort to disaffiliate from a national denomination, trial court's grant of permanent injunction is affirmed as, under established California law, the disaffiliation attempt was ineffective and the oversight entity superseded the governing board.     

Read Classis of Cent. CA. v. Miraloma Comty. Church, No. A122540

Appellate Information

Filed September 15, 2009

Judges

Opinion by Judge Reardon

Counsel

For Appellant:  Peter Sean Bradley, Randall M. Penner, Mayer Brown, Donald M. Falk

For Appelle:   Alan E. Friedman, Geoffrey P. Forgione, Orian J. Lee

Cho v. Seagate Tech. Holdings, Inc., No. A121623

In a class action lawsuit against a manufacturer for falsely overstating in advertising and packaging the storage capacity of computer disc drives that it manufactures for public sale, trial court did not abuse its discretion in overruling a class member's objections and approving a settlement as there are no facts that show the parties engaged in any collusion or improper conduct.  However, the matter is vacated and remanded to correct the class definition to unambiguously state that indirect purchasers of new Seagate disc drives are members of the plaintiff class and to renotice the settlement in order to give adequate notice to all class members, and allow for additional claims, objections or opt outs.       

Read Cho v. Seagate Tech. Holdings, Inc., No. A121623

Appellate Information

Filed September 15, 2009

Judges

Opinion by Judge Siggins

Counsel

For Plaintiff and Respondent:  Brian R. Strange, Gretchen Carpenter, Adam J. Gutride, Seth A. Safier.

For Defendant and Respondent: Peter S. Hecker, Neil A.F. Popovic, Dylan Ballard.  

For Objector and Appellant: Charles D. Chalmers 

People v. Goodliffe, No. C058588

A sentence for sexual offenses involving four young children is reversed and remanded for resentencing where the trial court erred in imposing a full, consecutive term on one count because defendant's crimes did not involve the same victim on the same occasion as required by subdivision (c) of Penal Code section 667.6. 

Read People v. Goodliffe, No. C058588

Appellate Information

Filed September 14, 2009

Judges

Opinion by Judge Blease

Counsel

For Appellant:  Elizabeth M. Campbell

For Appelle:  Edmund G. Brown, Jr. Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Charles A. French, Supervising Deputy Attorney General, Brook Bennington, Deputy Attorney General.

People v. Quiles, No. A119615

Defendant's conviction and sentence for multiple crimes is affirmed as the trial court did not err in imposing the upper term of sentence as prior juvenile adjudications that are of increasing seriousness may be used in imposing the upper term under California Rules of Court, rule 4.421(b)(2). 

Read People v. Quiles, No. A119615

Appellate Information

Filed September 10, 2009

Judges

Opinion by Judge Needham

Counsel

For Appellant:  Law Office of Paul Kleven 

For Appelle:  Edmund G. Brown, Jr. Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senio Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, Catherine McBrien, Deputy Attorney General.

Oxford v. Foster Wheeler LLC, No. A121577

In plaintiffs' lawsuit on behalf of decedent for negligence, products liability, and false representation arising from exposure to asbestos while working on U.S. Navy ships and shipyard, trial court's judgment against defendant is reversed and remanded for a new trial where, although the trial court was correct in concluding that the jury's verdict on the affirmative government contractor defense did not entitle defendant to judgment in its favor, a finding of negligent failure to warn is logically and legally inconsistent with the jury's finding on plaintiffs' strict products liability failure to warn. Accordingly, to the extent the jury might have found defendant negligent for something other than failure to warn, that claim would have been barred by the affirmative defense. 

Read Oxford v. Foster Wheeler LLC, No. A121577

Appellate Information

Filed September 10, 2009

Judges

Opinion by Judge Graham

Counsel

For Appellant:  Sedwick, Detert, Moran & Arnold LLP, Frederick D. Baker, Brian R. Thompson 

For Appelle: Alan R. Brayton, Gilbert L. PurcellLloyd F. Leroy, Richard M. Grant, Brayton Purcell LLP

Estate of Lensch, No. A123296

Trial court's judgment denying appellants' petition to determine survival and to determine persons entitled to distribution of the estate of their grandmother is reversed and remanded where: 1) although the trial court was correct in finding that the will contained no survivorship requirement, it erred in denying appellants' petition on this basis as it did not understand the legal consequences of the lack of survivorship requirement in the will; and 2) the trial court should have held an evidentiary hearing on the issue of testator's son's time of death.   

Read Estate of Lensch, No. A123296

Appellate Information

Filed September 9, 2009

Judges

Opinion by Judge Haerle

Counsel

For Appellant:  Margaret M. Hand 

For Respondent: Elliot L. Bien, Catherine S. Meulemans, Bien & Summers, Afred S. Wilkins, Elizabeth W. Johnson, WIlkins & Johnson

In re G.L., No. D054257

Judgment declaring plaintiff's minor daughter a dependent of the juvenile court under Welfare and Institutions Code section 300(a) and (b) and removing the minor from parental custody is affirmed where:  1) the Indian Child Welfare Act's (ICWA) notice requirements for an Indian custodian were not violated; 2) to the limited extent the paternal grandmother's rights as the minor's Indian custodian were implicated, any error was harmless; and 3) there was substantial evidence to support the court's finding that good cause existed to deviate from ICWA's statutory placement preferences.     

 

Read In re G.L., No. D054257

Appellate Information

Filed September 9, 2009

Judges

Opinion by Judge Irion

Counsel

For Appellant:  Christy C. Peterson 

For Respondent:  John J. Sansone, County Counsel, John E. Phillips, Chief Deputy County Counsel, Dana C. Shoffner and Lisa M. Maldonado, Deputy County Counsel. 

People v. Gutierrez, No. B211622

Conviction of defendant on multiple counts of kidnapping and sex-related crimes is affirmed where defendant's Sixth Amendment right of confrontation was not violated by admission of a lead nurse practitioner's testimony regarding a report prepared by a nontestifying nurse, as People v. Geier (2007) 41 Cal.4th 555 is still controlling law after Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), where the supervisor of the analyst who prepared the reports testified at trial and Melendez-Diaz involved only "near-contemporaneous" affidavits that were prepared almost one week after the tests were performed, whereas this case involves contemporaneous recordation of observable events.  To the extent the narrative portion of the report ran afoul of defendant's right of confrontation, the violation did not result in prejudicial error as there was nothing in the narrative portion of the report potentially damaging to defendant's case.   

Read People v. Gutierrez, No. B211622

Appellate Information

Filed September 9, 2009

Judges

Opinion by Judge Rothschild

Counsel

For Appellant: Vanessa Place 

For Respondent:  Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrnes and Eric J. Kohm, Deputy Attorneys General

In re L.M., No. A124299

Juvenile court's order denying the minor-plaintiff's motion to require the County Probation Department to pay his father's transportation costs to and from monthly visits is affirmed as plaintiff failed to make a threshold showing that his father was unable to afford the cost of the trips. A juvenile court hearing a delinquency case has the power, under appropriate circumstances, to order a supervising agency to financially assist a parent who lacks the financial means to travel to and from visitation.     

Read In re L.M., No. A124299

Appellate Information

Filed September 9, 2009

Judges

Opinion by Judge Needham

Counsel

For Appellant:  Francia M. Welker 

For Respondent:  Silvano B. Marchesi, County Counsel, Esther Milbury, Deputy County Counsel

Williams v. Hilb, Rogal & Hobbs Insurance Serv., No. B203691

In a negligence action against an insurance agency for failing to include workers compensation in the insurance package arising from a multimillion dollar judgment against plaintiff for injuries suffered by employee in a catastrophic fire, trial court's judgment is affirmed where: 1) the evidence amply supported the court's finding that defendant's employee failed to use the skill and care a reasonably careful insurance professional would have used in similar circumstances; 2) the action is not barred by the statute of limitations; and 3) the trial court did not err in refusing to assign fault to the plaintiff. 

Read Williams v. Hilb, Rogal & Hobbs Ins. Serv., No. B203691

Appellate Information

Filed September 9, 2009

Judges

Opinion by Judge Bendix

Counsel

For Appellant: Lewis Brisbois Bisgaard & Smith and Roy G. Weatherup; Hinshaw & Culbertson and Frances M. O'Meara

For Appelle:  Vastano & Angarella, Patrick G. Vastano and Steven V. Angarella   

People v. McIntosh, No. A122142

Denial of defendant's motion to withdraw his pleas of no contest is affirmed where, when sentencing discretion is expressly constrained by the terms of a plea agreement and the judge who accepted the plea becomes unavailable for reasons beyond the court's or the prosecutor's control, the defendant is not automatically entitled to withdraw his plea under People v. Arbuckle (1978) 22 Cal.3d 749 in the absence of evidence that exercise of individualized judicial discretion was material element of the consideration for the plea agreement.     

Read People v. McIntosh, No. A122142

Appellate Information

Filed September 8, 2009

Judges

Opinion by Judge Bruiniers

Counsel

For Appellant:  Matthew Zwerling and L. Richard Braucher 

For Respondent: Edmund G. Brown Jr., Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan and Martin S. Kaye, Deputy Attorneys General 

Matus v. Bd. of Admin. of CA Public Employees' Ret. Sys., No. C056576

Trial court's upholding of a ruling of an administrative law judge that defendant California Public Employees Retirement System (CalPERS) underpaid retirement benefits to plaintiff and his widow by more than $3 million is affirmed as CalPERS failed to order a transcript within 100 days of rejecting the proposed decision and did not timely issue its own decision under Government Code section 11517.     

Read Matus v. Bd. of Admin. of CA Public Employees' Ret. Sys., No. C056576

Appellate Information

Filed September 8, 2009

Judges

Opinion by Judge Hull

Counsel

For Appellant:  Steptoe & Johnson and Bennett Evan Cooper  

For Respondent: Roberti Jensen LLP, John Michael Jensen, David A. Roberti and Tessa Mar King 

Li v. Majestic Indus. Hills, LLC., No. B208404

Trial court's judgment denying plaintiff's motion to vacate the voluntary dismissal of his wrongful termination action against defendant is affirmed but the award of sanctions is reversed as the trial court's ruling on plaintiff's motion to vacate deprived him of the full 21-day safe harbor period to avoid imposition of sanctions.  

Read Li v. Majestic Indus. Hills, LLC., No. B208404

Appellate Information

Filed September 8, 2009

Judges

Opinion by Judge Perluss

Counsel

For Appellant:  Law Offices of Shin P. Yang, Yang and Frank Carleo  

For Respondent:  Greenberg Glusker Fields Claman  & Machtinger, Michael A. Greene and Caroline H. Burgos

Birotte v. Superior Court, No. B213606

Petition for a writ of mandate to dismiss defendant's rape and other related charges as barred by statute of limitations is denied where: 1) the plain language of section 803(g)(1) of the Penal Code requires more than an initial match or positive identification of a suspect's DNA with crime scene evidence; and 2) the legislative history supports the conclusion that the one-year limitations period is not triggered by an initial match or link.      

Read Birotte v. Superior Court, No. B213606

Appellate Information

Filed September 8, 2009

Judges

Opinion by Judge Perluss

Counsel

For Appellant:  Omari Bakari 

For Respondent:  Steve Cooley, District Attorney, Lael Rubin, Head Deputy District Attorney, Phyllis C. Asayama and Tracy Lopez, Deputy District Attorneys 

People v. Lawrence, No. F055219

Defendant's conviction for attempted unpremeditated murder and related firearm offenses is affirmed where: 1) trial court did not err in a failure to give an instruction not supported by the evidence on what was asserted to be a lesser included offense; 2) there is no infirmity in the wording of CALCRIM Nos. 105 and 226, and they were properly given in the case; and 3) CALCRIM No. 600 correctly states the law.  Defendant's sentence is remanded with directions to the trial court to stay the sentence on count 4 and exercise its discretion to impose or strike the second enhancement found under section 667.5(b). 

Read People v. Lawrence, No. F055219

Appellate Information

Filed September 8, 2009

Judges

Opinion by Judge Ardaiz

Counsel

For Appellant: Victor Blumenkrantz 

For Respondent: Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Brian Alvarez and Leslie W. Westmoreland, Deputy Attorneys General 

People v. Morgain, No. A121530

Defendant's conviction for first degree murder is affirmed for the most part where: 1) questioning defendant's girlfriend in the presence of the jury did not violate defendant's right of confrontation; 2) permitting the prosecutor to argue in its closing argument regarding defendant's girlfriend's refusal to testify did not violate defendant's constitutional rights; and 3) even if the court erred by permitting the adverse comment striking all of defendant's girlfriend's testimony the error was harmless. Trial court is directed to award defendant 249 days of presentence custody credit, not 248 days.       

Read People v. Morgain, No. A121530

Appellate Information

Filed September 2, 2009

Judges

Opinion by Judge Jones

Counsel

For Appellant: Catherine White  

For Respondent:  Edmund G. Brown, Jr. , Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Stan Helfman, Supervising Deputy Attorney General, Christopher J. Wei, Deputy Attorney General 

People v. Cardona, No. F054344

A sentence for multiple sex crimes pursuant to a ruling that defendant was not a fit and proper subject to be dealt with under the juvenile court law, and instead was to be sentenced under the general law of California is affirmed as Apprendi and its progeny do not apply and defendant forfeited any due process claim by failing either to raise it or object to the procedures used.   

Read People v. Cardona, No. F054344

Appellate Information

Filed September 4, 2009

Judges

Opinion by Judge Ardaiz

Counsel

For Appellant: Carlo Andreani 

For Respondent:  Edmund G. Brown, Jr. Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Supervising Deputy Attorney General, David Andrew Eldridge and Heather S. Gimle, Deputy Attorneys General

Cummings v. Stanley, No. A123743

In plaintiff's action contesting the eligibility of defendants for election to positions on the Alameda County Republican Central Committee under Election Code sections 16100(b) and 16440(a), trial court's dismissal of plaintiff's action is reversed where an election of party central committee members is not a primary election, and thus is governed by a 30-day time limit to file a contest to elections other than primary elections.  Therefore, plaintiff timely filed the election contest.       

Read Cummings v. Stanley, No. A123743

Appellate Information

Filed September 4, 2009

Judges

Opinion by Judge Graham

Counsel

For Appellant: Law Office of George G. Benetatos 

For Respondent:  Baker & McKenzie LLP and Tod L. Gamlen and Gerald M. Salcido

Cabral v. Martins, No., A120657

In plaintiff's action against her ex-husband and various others including several attorneys involving their alleged participation to conceal assets to avoid child support, grant of attorney's special motion to strike under the anti-SLAPP statute and award of attorneys' fees is affirmed where: 1) plaintiff's cause of action is predicated on protected activity under the anti-SLAPP statute and the probate proceedings and the litigation defense were protected petitioning activity for purposes of the anti-SLAPP statute; 2) plaintiff did not show a probability of success on the merits; and 3) plaintiff did not demonstrate any abuse of the trial court's discretion in determining the appropriate amount of attorney fees to award.      

Read Cabral v. Martins, No., A120657

Appellate Information

Filed September 4, 2009

Judges

Opinion by Judge Ruvolo

Counsel

For Appellant:  Law Offices of Stephen G. Opperwall 

For Respondent:  Drath, Clifford, Murphy & Hagen, Ray Z. Bacerdo, Kelly M. Flanagan, Phillips, Greenberg & Hauser, Jerry Hauser

Starlight Ridge S. Homeowners Ass'n v. Hunter-Bloor, No. E046457

In a case involving covenants, condition and restrictions (CC&Rs), trial court's judgment granting homeowner's motion for summary judgment is reversed where, while the plain language of the CC&Rs could support either of the proffered interpretations, the circumstances of the creation of the CC&Rs indicate that general responsibility for landscape is assigned to the Association, but specifically provide that individual property owners will be responsible for drainage facilities and here, the homeowner cannot avoid that responsibility solely because the V-ditch on her property happens to also coincide with the landscape maintenance area. 

Read Starlight Ridge S. Homeowners Ass'n v. Hunter-Bloor, No. E046457

Appellate Information

Filed September 3, 2009

Judges

Opinion by Judge Miller

Counsel

For Appellant:  Fiore, Racobs & Powers, Peter E. Racobs and Jesse W.J. Male 

For Respondent:  Stephanie K. Hunter-Bloor, Law Office of John Scott Carter.

J.L. v. Children's Inst., Inc., No. B206959

In a minor's negligence action against the Children's Institute, Inc. (CII) for referring the minor to a day care where he was sexually assaulted, trial court's grant of summary judgment in favor of defendant is affirmed where CII owed no duty to protect against an unforeseeable criminal assault, as there was no evidence showing CII had actual knowledge of the boy's assaultive tendencies or that he posed any risk of harm, nor was it vicariously liable for any possible breach of duty by the day care provider. 

Read J.L. v. Children's Inst., Inc., No. B206959

Appellate Information

Filed September 3, 2009

Judges

Opinion by Judge Todd

Counsel

For Appellant:  Law Offices of Michels & Watkins, Jin N. Lew, Steven B. Stevens.

For Respondent:  Kessel & Associates, Elizabeth M. Kessel and Scott E. Boyer.

Jeewarat v. Warner Bros. Entm't., No. B212323

In plaintiffs' tort action arising from a car accident against the defendant on theory of respondeat superior, trial court's grant of summary judgment in favor of defendant is reversed where an employee's attendance at an out-of-town business conference may be considered a special errand under the special errand doctrine, and in addition, when an employee intends to drive home from an errand, the errand is not concluded simply because the employee drives his regular commute route, but rather, the errand is concluded when the employee returns home or deviates from the errand for personal reasons. Here, the employer failed to show that the employee was not acting within the course and scope of his employment at the time of the accident. 

Read Jeewarat v. Warner Bros. Entm't., No. B212323

Appellate Information

Filed September 3, 2009

Judges

Opinion by Judge Kriegler

Counsel

For Appellant:  Zukor & Nelson, Abram Charles Zukor and Marilyn H. Nelson

For Respondent:  Wood, Smith, Henning & Berman, Kevin D. Smith, Anne K. McIntyre and Nicholas M. Gedo

Doe v. Brown, No. D053982

A sex offender who has obtained the relief provided in section 1203.4 is subject to the Megan's Law Internet publication provisions because he or she is required to register in accordance with the Sex Offender Registration Act, and the Internet publication provisions of section 290.46 apply, by the terms of that statute, to those persons who "are required to register" pursuant to the Sex Offender Registration Act.  Thus, trial court did not err in denying petitioner's writ of mandate. 

Read Doe v. Brown, No. D053982

Appellate Information

Filed September 3, 2009

Judges

Opinion by Judge Aaron

Counsel

For Appellant:  Steven J. Carroll, Public Defender, and Laura Arnold, Deputy Public Defender 

For Respondent:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Marissa Bejarano, Deputy Attorneys General

Carrera v. Maurice J. Sopp & Son, No. B204911

In plaintiffs' wrongful death action against defendants on theory of duty owed by owner or bailee of a motor vehicle, trial court's grant of summary judgment in favor of defendants on the issue of duty is reversed where the trial court erred in finding an absence of special circumstances as here, the tow truck falls within the ambit of the special circumstances rule, and the tow truck was left unattended in a high crime area with the key in the ignition and accessible to thieves.  Finally, the sum total of the policy considerations under the Rowland factors leads to the conclusion that defendant owed a duty of care to the plaintiffs. 

Read Carrera v. Maurice J. Sopp & Son, No. B204911

Appellate Information

Filed September 3, 2009

Judges

Opinion by Judge Klein, P.

Counsel

For Appellant:  Moreno, Becerra & Casillas, Arnoldo Casillas and Christian Pereira, Law Office of Daniel Michah Dembicer, Blanchard Stein & Stein, Andrew D. Stein & Associates, Rebecca A. Davis-Stein.

For Respondent:  Horvitz & Levy, David S. Ettinger, Jason R. Litt, Schaffer, Lax, McNaughton & Chen, Kevin J. McNaughton and Yaron F. Dunkel.

Canandaigua Wine Co. v. County of Madera, No. F055858

Plaintiff's appeal from an order summarily adjudicating one of the three causes of action in its petition for writ of administrative mandate involving the assessment of a winery is dismissed where a ruling on a petition for writ of mandate is not appealable if other causes of action remain pending between the parties. 

Read Canandaigua Wine Co. v. County of Madera, No. F055858

Appellate Information

Filed September 2, 2009

Judges

Opinion by Judge Levy

Counsel

For Appellant:  Winston & Strawn, Charles J. Moll III, Amanda L. Groves, Troy M. Van Dongen and Kathleen F. McConnell

For Respondent:  Cota Cole & Associates, Dennis M. Cota and Carolyn J. Frank.

N. Am. Capacity Ins. Co. v. Claremont Liab. Ins. Co., No. B207878

In an equitable contribution action between two insurers, trial court's judgment is affirmed where: 1) substantial evidence supports the trial court's findings regarding the project completion date; 2) the court did not err in ruling that the contractors warranty endorsements in defendant's policies were enforceable preconditions for coverage; and 3) coverage was not available under defendant's umbrella policy. Furthermore, substantial evidence supports the trial court's allocation of relative responsibility to the carriers, and the court properly exercised its discretion in setting the amounts of equitable contribution   

Read N. Am. Capacity Ins. Co. v. Claremont Liab. Ins. Co., No. B207878

Appellate Information

Filed September 2, 2009

Judges

Opinion by Judge Flier

Counsel

For Appellant: Grimm, Vranjes, McCormick & Graham, A. Carl Yaeckel and Charles A. Phllilps

For Respondent:  Selman Breitman, Sheryl Q. Leichenger, Eldon S. Edson and Tam T. Glunt.

Cortez v. Abich, No. B210628

In a personal injury action arising from a construction accident, trial court's grant of summary judgment in favor of defendants is affirmed where:  1) plaintiff's contention that the defendants were required to comply with OSHA requirements fails as a matter of law because they were not plaintiff's employer; and 2) to the extent plaintiff seeks to hold defendants liable as homeowners on a concealed danger theory, defendants had no duty to inspect the roof for 'soft spots' in order to ensure the safety of the workers as a matter of law.     

Read Cortez v. Abich, No. B210628

Appellate Information

Filed September 2, 2009

Judges

Opinion by Judge Suzukawa

Counsel

For Appellant:  Homampour Law Firm, Arash Homampour, and Stuart Sherman

For Respondent:  Early, Maslach & Van Dueck, John C. Notti, Paul A. Carron, and James Grafton Randall, Greines, Martin, Stein & Richland, Robert A. Olson, and Alana H. Rotter

Wences v. City of Los Angeles, No. B208525

Following administrative proceedings involving an off-duty, officer-involved shooting, trial court's denial of police officer's petition for writ of administrative mandate is reversed and remanded where, because the disciplinary proceedings against petitioner substantially affected his fundamental vested right in his employment, the trial court was required to exercise its independent judgment on the evidence. 

Read Wences v. City of Los Angeles, No. B208525

Appellate Information

Filed September 2, 2009

Judges

Opinion by Judge Zelon

Counsel

For Appellant:  Gary Orville

For Respondent:  Rockard J. Delgadillo, City Attorney, Claudia McGee Henry, Senior Assistant City Attorney, and Gregory P. Orland, Deputy City Attorney.

In a construction defect case, trial court's grant of summary judgment on statute of limitations grounds to the roofing defendants is reversed where: 1) there are triable issues of material fact on whether the alleged defect was patent: 2) there are triable issues of material fact on whether the defect can be deemed discovered in the latent defect context because the damage was sufficiently appreciable so that plaintiff suspected or reasonably should have suspected that defendants had done something wrong to plaintiff.    

Read Creekridge Townhome Owners Ass'n, Inc. v. C. Scott Whitten, Inc., No. C058300

Appellate Information

Filed September 1, 2009

Judges

Opinion by Judge Butz

Counsel

For Appellant:

Angius & Terry LLP, Paul P. Terry, Jr., Bradley J. Epstein

and Sam Y. Chon

For Respondent:

Klinedinst PC, G. Dale Britton, Natalie P. Vance and Jason W. Schaff

Stevens v. Tri Counties Bank, No. C058154

In plaintiff's action involving the California Multiple-Party Accounts Law (CAMPAL), trial court's judgment in favor of defendant is reversed where the joint bank account contract with defendant incorporated California law relating to such agreements, except to the extent that the contract explicitly varies from California law, and thus, because the way in which defendant added an individual to the account in this case did not conform to the requirements of section 5303 incorporated in the account contract, defendant can be liable for breaching the contract when it allowed her to withdraw all of the money in plaintiff's account.       

Read Stevens v. Tri Counties Bank, No. C058154

Appellate Information

Filed September 1, 2009

Judges

Opinion by Judge Scotland

Counsel

For Appellant:

Murphy, Campbell, Guthrie & Alliston, George E. Murphy, Suzanne M. Nicholson; and William A. Ward

For Respondent:

C. Athena Roussos; Law Office of Philip J. Rhodes and Philip J. Rhodes

Kling v. Superior Court, No. B208748

In a petition for a writ of prohibition to compel respondent superior court to vacate its order granting the prosecution's motion to unseal reporters' transcripts of in camera hearings conducted pursuant to Penal Code section 1326(c), the petition is granted where no statutory or constitutional authority permits disclosure to the prosecution of the names of the third parties to whom defense subpoenas have been issued or the nature of the records produced.   

Read Kling v. Superior Court, No. B208748

Appellate Information

Filed August 31, 2009

Judges

Opinion by Judge Gilbert

Counsel

For Appellant:

Duane Dammeyer, Public Defender, Michael C. McMahon, Chief Deputy

For Respondent:

Gregory D. Totten, District Attorney, Michael D. Schwartz, Special Assistant District Attorney, Cheryl M. Temple, Senior Deputy District Attorney

Doe v. Roman Catholic Archbishop of Cashel & Emly, No. B206272

In an appeal from the trial court's order quashing service of summons and process on the Archdiocese of Cashel & Emly in Ireland regarding alleged sexual molestation by clergy, the order is affirmed where: 1) plaintiff waived the issue by his failure to fairly and completely set forth, discuss, and analyze the relevant facts under the applicable substantial evidence standard of review; and 2) substantial evidence supported the trial court's ruling that defendant had insufficient contacts with the State of California to support an exercise of either general or specific jurisdiction. 

Read Doe v. Roman Catholic Archbishop of Cashel & Emly, No. B206272

Appellate Information

Filed August 31, 2009

Judges

Opinion by Judge Rubin

Counsel

For Appellant:

John C. Manly and Vince W. Finaldi, Manly & Stewart

For Respondent:

Nicholas W. Heldt, Cynthia H. Plevin and Ryan L. Harrison, Sedgwick, Detert, Moran & Arnold 

People v. Lopez, No. D052885A

Defendant's vehicular manslaughter conviction is reversed where the admission into evidence of a blood alcohol laboratory report violated defendant's constitutional right to confrontation of witnesses by allowing testimonial hearsay evidence prohibited under Crawford v. Washington, 541 U.S. 36 (2004).   

Read People v. Lopez, No. D052885A

Appellate Information

Filed August 31, 2009

Judges

Opinion by Judge McDonald

Counsel

For Appellant:  Janice R. Mazur

For Respondent:

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lynne McGinnis and Gil Gonzalez, Deputy Attorneys General

People v. Burton, No. A122183

In an appeal from a trial court's order summarily revoking defendant's probation on the basis of a petition charging a violation that the prosecution later failed to prove, the order is affirmed where, once the expiration of a probation period is tolled, then as long as a probationer is found to have committed some probation violation during the probation period, as charged in a petition filed during the probation period, the trial court retains jurisdiction to revoke probation after the expiration of the probation term, even if the tolling was based on a violation the prosecution did not ultimately prove.   

Read People v. Burton, No. A122183

Appellate Information

Filed August 31, 2009

Judges

Opinion by Judge Ruvolo

Counsel

Counsel for Appellant: Rachel Lederman

Counsel for Respondent: Edmund G. Brown Jr. Attorney General of California, Gerald A. Engler Senior Assistant Attorney General, Stan Helfman Supervising Deputy Attorney General, John R. Vance, Jr. Deputy Attorney General

In re Luis F., No. A123599

In an appeal from a juvenile court's order declaring minor a ward of the court, the order is affirmed in part where: 1) the evidence was sufficient to find that defendant committed attempted robbery; and 2) the juvenile court acted within its discretion and did not violate either the state or federal Constitution in ordering defendant to continue to cooperate in his treatment by complying with his doctor's future prescriptions of medication for depression and social anxiety disorder.  However, the judgment is modified in part where the Court of Appeal ordered that Defendant must continue to take only those medications prescribed for depression and social anxiety disorder.   

Read In re Luis F., No. A123599

Appellate Information

Filed August 31, 2009

Judges

Opinion by Judge Richman

Counsel

Attorney for Defendant and Appellant: Scott D. Handleman, under appointment by the Court of Appeal.

Attorneys for Plaintiff and Respondent: Edmund G. Brown Jr., Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Laurence K. Sullivan, and Martin S. Kaye, Supervising Deputy Attorneys General.

First Am. Title Ins. Co. v. XWarehouse Lending Corp., No. A119931

In an action by an insurer seeking a declaration that plaintiff had no duty under its title insurance policies to defend or indemnify defendant, judgment for plaintiff is affirmed where defendant was not an insured under the policy because it was not a successor in ownership of the mortgage at issue.

Read First Am. Title Ins. Co. v. XWarehouse Lending Corp., No. A119931

Appellate Information

Filed August 28, 2009

Judges

Opinion by Judge Siggins

Counsel

For Appellant:

Barry D. Hovis, Musick, Peeler & Garrett LLP, San Francisco, CA

Walter J.R. Traver, Musick, Peeler & Garrett LLP, San Francisco, CA

For Respondent:

Michael T. Fogarty, McDonough Holland & Allen, Sacramento, CA

People v. Shaw, No. F054698

Defendant's child molestation conviction is affirmed where: 1) when a defendant is charged with felony child annoyance or molestation as a recidivist, the appropriate statute of limitations is the three-year felony statute of limitations; and 2) there was sufficient evidence to support a conclusion that defendant touched the victim with the specific intent to arouse or gratify himself and/or the victim.

Read People v. Shaw, No. F054698

Appellate Information

Filed August 28, 2009

Judges

Opinion by Judge Wiseman

Counsel

For Appellant:

Scott Concklin

For Respondent:

Louis M. Vasquez, Deputy Attorney General

Leanne Le Mon, Deputy Attorney General

People v. Villalobos, No. F056729

Defendant's restitution and parole revocation fines in connection with his attempted murder sentence are affirmed where fines were not a subject of the parties' plea bargaining, and the plea agreement left the issue of fines to the court's discretion.

Read People v. Villalobos, No. F056729

Appellate Information

Filed August 28, 2009

Judges

Opinion by Judge Wiseman

Counsel

For Appellant:

Grace Lidia Suarez, San Francisco, CA

For Respondent:

Charles A. French

Galen N. Farris

Kling v. Superior Court, No. B208748

In a petition for a writ of prohibition to compel respondent superior court to vacate its order granting the prosecution's motion to unseal reporters' transcripts of in camera hearings conducted pursuant to Penal Code section 1326(c), the petition is granted where no statutory or constitutional authority permits disclosure to the prosecution of the names of the third parties to whom defense subpoenas have been issued or the nature of the records produced.

Read Kling v. Superior Court, No. B208748

Appellate Information

Filed August 31, 2009

Judges

Opinion by Judge Gilbert

Counsel

For Petitioner:

Duane Dammeyer, Public Defender, Ventura, CA

For Respondent:

Michael D. Schwartz, Special Assistant District Attorney

Cheryl M. Temple, Senior Deputy District Attorney

Doe v. Roman Catholic Archbishop, No. B206272

In an appeal from the trial court's order quashing service of summons and process on the Archdiocese of Cashel & Emly in Ireland regarding alleged sexual molestation by clergy, the order is affirmed, where: 1) plaintiff waived the issue by his failure to fairly and completely set forth, discuss, and analyze the relevant facts under the applicable substantial evidence standard of review; and 2) substantial evidence supported the trial court's ruling that the defendant had insufficient contacts with the State of California to support an exercise of either general or specific jurisdiction.

Read Doe v. Roman Catholic Archbishop, No. B206272

Appellate Information

Filed August 31, 2009

Judges

Opinion by Judge Rubin

Counsel

For Appellant:

John C. Manley, Manley & Stewart

For Respondent:

Nicholas W. Heldt, Sedgwick, Detert, Moran & Arnold, San Francisco, CA

Cynthia H. Plevin, Sedgwick, Detert, Moran & Arnold, San Francisco, CA

People v. Lopez, No. D052885A

Defendant's vehicular manslaughter conviction is reversed, where the admission into evidence of a blood alcohol laboratory report violated Defendant's constitutional right to confrontation of witnesses by allowing testimonial hearsay evidence prohibited under Crawford v. Washington, 541 U.S. 36 (2004).

Read People v. Lopez, No. D052885A

Appellate Information

Filed August 31, 2009

Judges

Opinion by Judge McDonald

Counsel

For Appellant:

Janice R. Mazur, El Cajon, CA

For Respondent:

Lynne McGinnis, Deputy Attorney General, San Diego, CA

Gil Gonzalez, Deputy Attorney General, San Diego, CA

People v. Burton, No. A122183

In an appeal from the trial court's order summarily revoking Defendant's probation on the basis of a petition charging a violation that the prosecution later failed to prove, the order is affirmed where, once the expiration of a probation period is tolled, then as long as a probationer is found to have committed some probation violation during the probation period, as charged in a petition filed during the probation period, the trial court retains jurisdiction to revoke probation after the expiration of the probation term, even if the tolling was based on a violation the prosecution did not ultimately prove.

Read People v. Burton, No. A122183

Appellate Information

Filed August 31, 2009

Judges

Opinion by Judge Richman

Counsel

For Appellant:

Rachel Lederman

For Respondent:

Stan Helfman, Supervising Deputy Attorney General, San Francisco, CA

John R. Vance, Jr., Deputy Attorney General, San Francisco, CA

People v. Jones, No. S148463

Court of appeals' application of a 20-year sentence enhancement under Penal Code section 12022.53(c) to a defendant convicted of a gang-related crime is affirmed where, because the felony of shooting at an inhabited dwelling was punishable by a life term under section 186.22(b)(4), and it was committed to benefit a criminal street gang, defendant committed a felony punishable by . . . imprisonment in the state prison for life within the meaning of subdivision (a)(17) of section 12022.53.   

Read People v. Jones, No. S148463

Appellate Information

Appeal from Fresno County Super. Ct. No. F02671154-3.
Filed August 31, 2009

Judges

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

Counsel

For Petitioner:   Candace Hale, under appointment by the Supreme Court

 

For Respondent: 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 Neeley, Louis M. Vasquez, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General

People v. Luis F., No. A123599

In an appeal from the juvenile court's order declaring Defendant-Minor a ward of the court, the order is affirmed in part, where 1) the evidence was sufficient to find that Defendant committed attempted robbery, and 2) the juvenile court acted within its discretion and did not violate either the state or federal Constitution in ordering Defendant to continue to cooperate in his treatment by complying with his doctor's future prescriptions of medication for depression and social anxiety disorder.  However, the judgment is modified in part, where the Court of Appeal ordered that Defendant must continue to take only those medications prescribed for depression and social anxiety disorder.

Read People v. Luis F., No. A123599

Appellate Information

Filed August 31, 2009

Judges

Opinion by Judge Richman

Counsel

For Appellant:

Scott D. Handleman, San Francisco, CA

For Respondent:

Martin S. Kaye, Supervising Deputy Attorney General, San Francisco, CA

People v. Brookfield, No. S147980

Court of appeals' judgment upholding a life sentence but reversing an enhanced punishment imposed on a defendant convicted of a gang-related crime in the commission of which he did not personally discharge a firearm (a companion of his did), is affirmed where: 1) the trial court erred in sentencing defendant to both the life term under section 186.22(b)(4) and the 10-year sentence enhancement under subdivisions (b) and (e)(1) of section 12022.53; and 2) the court of appeals was correct in ordering the 10-year sentence enhancement stricken, but it was incorrect in its reasoning that the defendant had not committed a felony punishable by imprisonment in the state prison for life.      

Read People v. Brookfield, No. S147980

Appellate Information

Appeal from Kern County Super. Ct. No. BF107031B.
Filed August 31, 2009

Judges

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

Counsel

For Petitioner:   Corinne S. Shulman and Mark D. Greenberg, under appointments by the Supreme Court

 

For Respondent:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Janet Neeley, Peter W. Thompson and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

Burlage v. Superior Court, No. B211431

In a petition for a writ of mandamus to overturn a trial court's order vacating an arbitration award, the petition is denied where the arbitrator excluded material evidence that substantially prejudiced respondent pursuant to Code of Civil Procedure section 1286.2.1.

Read Burlage v. Superior Court, No. B211431

Appellate Information

Filed August 31, 2009

Judges

Opinion by Judge Gilbert

Counsel

For Petitioners:

Richard M. Hoefflin, Hoefflin & Associates, ALC, Westlake Village, CA

For Respondent:

Lisa Perrochet, Horvitz & Levy LLP, Encino, CA

John A. Taylor, Jr., Horvitz & Levy, Encino, CA

People v. Tran, No. G036560

Defendant's murder and street terrorism convictions are affirmed where: 1) defendant's prior conviction for extortion was admissible to prove the charge of street terrorism against him; 2) a witness's statement that his sister had been executed did not necessarily implicate defendant; and 3) the trial court erred in using the same factor to both enhance defendant's sentence and to run it consecutively, but the error was harmless.

Read People v. Tran, No. G036560

Appellate Information

Filed August 31, 2009

Judges

Opinion by Judge Sills

Counsel

For Appellant:

Marleigh A. Kopas, Topanga, CA

For Respondent:

Steve Oetting, Deputy Attorney General, San Diego, CA

Lise S. Jacobson, Deputy Attorney General

M.P. v. Sacramento, No. C057324

In an action against a city for sexual assaults allegedly committed by firefighters, summary judgment for defendant is affirmed where the assault was not conduct within the scope of the firefighters' employment and could not support a finding that the city was vicariously liable for the harm.

Read M.P. v. Sacramento, No. C057324

Appellate Information

Filed August 31, 2009

Judges

Opinion by Judge Scotland

Dissent by Judge Nicholson

Counsel

For Appellant:

Michael J. Kinane, Law Office of Michael J. Kinane, Oakland, CA

For Respondent:

Eileen M. Teichert, City Attorney, Sacramento, CA

Chance L. Trimm, Senior Deputy City Attorney, Sacramento, CA