California Case Law: October 2009 Archives
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October 2009 Archives

Lee v. Valverde, No. E046731

Trial court's ruling that the document establishing that defendant was driving with a blood alcohol concentration of 0.08 percent or higher was inadmissible hearsay is reversed as the court abused its discretion in determining that the forensic report was inadmissible hearsay.     

Read Lee v. Valverde, No. E046731 [PDF]

Read Lee v. Valverde, No. E046731 [HTML]

Filed October 29, 2009

Judges

Opinion by Judge Miller

Counsel

For Appellant:  Edmund G. Brown, Jr., Attorney General, Alicia M. B. Fowler, Assistant Attorney General, Celine M. Cooper and Michael Yi, Deputy Attorneys General

For Appellee:  Milligan, Beswick, Levine & Knox and C. Patrick Milligan

People v. Leal, No. H031174

Trial court's ruling, placing defendant on probation for three years subject to various conditions after pleading no contest to obliterating the identification of a firearm, is reversed as the search conducted following defendant's arrest violated the Fourth Amendment, a violation of sufficient gravity to entitle defendant to the remedy of suppression of the evidence.     

Read People v. Leal, No. H031174 [PDF]

Read People v. Leal, No. H031174 [HTML]

Filed October 29, 2009

Judges

Opinion by Judge Duffy

Counsel

For Appellant:  Jonathan E. Berger, George L. Schraer

For Appellee:  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, Aileen Bunney, Deputy Attorney General

Berg & Berg Enters., LLC. v. Boyle, No. H031591

In plaintiff's breach of fiduciary duty against defendants, trial court's sustaining of defendant's demurrers to the third amended complaint is affirmed as plaintiff failed to plead a cognizable claim for breach of fiduciary duty against the individual directors. Furthermore, even if a cognizable claim had been alleged, on the pleaded facts, the business judgment rule insulated the directors from personal liability on the alleged claims for breach of fiduciary duty as a matter of law. 

Read Berg & Berg Enters., LLC. v. Boyle, No. H031591 [PDF]

Read Berg & Berg Enters., LLC. v. Boyle, No. H031591 [HTML]

Filed October 29, 2009

Judges

Opinion by Judge Duffy

Counsel

For Appellant:  Allen Matkins Leck Gamble, Mallory & Natsis, Robert R. Moore, Michael J. Betz, Kevin Ryan

For Appellee:  Winston & Strawn, Robert A. Julian, Nicole P. Dogwill, O'Melveny & Myers, Meredith N. Landy, Lori E. Romley, Sara M. Folchi

Harris v. City of Santa Monica, No. B199571

In plaintiff's pregnancy discrimination suit against a city, trial court's judgment in favor of plaintiff is reversed and remanded where: 1) the court's refusal to instruct the jury with the mixed-motive defense, BAJI No. 12.26, prejudiced the city; and 2) the trial court properly denied defendant's JNOV. 

Read Harris v. City of Santa Monica, No. B199571 [PDF]

Read Harris v. City of Santa Monica, No. B199571 [HTML]

Filed October 29, 2009

Judges

Opinion by Judge Rubin

Counsel

For Appellant: Marsha Jones Moutrie, City Attorney, Joseph Lawrence, Assistant City Attorney, Carol Ann Rohr and Barbara Greenstein, Deputy City Attorneys

For Appellee:  Kokozian & Nourmand and Michael Nourmand

People v. Tuggles, No. C054250

Trial court's conviction of defendants for first degree murder and firearm enhancement is affirmed where: 1) trial court did not err in admitting witness' testimony in response to questions by the prosecution about one of the defendant's reputation in the community; 2) trial court did not abuse its discretion by restricting cross-examination of a witness; 3) there was no error in challenged instructions that required the defense to remedy by requesting modification or amplification in order to provide effective assistance of counsel; 4) trial court did not err in failing to instruct the jury on flight; 5) trial court did not abuse its discretion in denying defendants' joint motion for a new trial based on jury misconduct; and 6) trial court did not err in denying defendants' access to jurors' personal contact information.     

Read People v. Tuggles, No. C054250 [PDF]

Read People v. Tuggles, No. C054250 [HTML]

Filed October 29, 2009

Judges

Opinion by Judge Sims

Counsel

For Appellant:  Sharon G. Wrubel and Jerry D. Whatley

For Appellee:  Edmund G. Brown Jr., Attorney General, Dane R. Gillette and Michael P. Farrell, Assistant Attorneys General, Charles A. French, and Jeffrey D. Firestone, Deputy Attorneys General

Zhang v. Sup. Ct., No. E047207

In plaintiff's action against her insurer over disputes arising from a fire of her commercial premises, district court's ruling sustaining defendant's demurrer to a cause of action under the Unfair Competition Law (UCL), Business and Professions Code section 17200, is vacated and remanded with directions to reinstate the cause of action as an insurer connected with conduct that would violate Insurance Code section 790.03 can also give rise to a private civil cause of action under the UCL.  

Read Zhang v. Sup. Ct., No. E047207 [PDF]

Read Zhang v. Sup. Ct., No. E047207 [HTML]

Filed October 29, 2009

Judges

Opinion by Judge Richli

Counsel

For Appellant: Viau & Kwasniewski, Gary K. Kwasniewski and Jeanette L. Viau

For Appellee:  N/A

People v. Medlin, No. B209614

An order finding defendants-nurses factually innocent of felony charges of dependent adult abuse likely to produce great bodily harm or death  and directing destruction of their records is reversed as, notwithstanding their acquittals, the evidence provided reasonable cause to believe that respondents committed the offense of which they were charged. 

Read People v. Medlin, No. B209614 [PDF]

Read People v. Medlin, No. B209614 [HTML]

Filed October 29, 2009

Judges

Opinion by Judge Coffee

Counsel

For Appellant:  Wasserman, Comden & Casselman, L.L.P., Mark S. Gottlieb, Leonard J,. Comden and Louis Samonsky, Jr.

For Appellee:  Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Theresa A. Patterson, Deputy Attorney General

Johnson v. Greenelsh, No. S166747

In proceedings involving an arbitration petition by one co-trustee of a family trust and plaintiff-co-trustee's petition to enforce a no contest clause, appellate court's judgment against defendant-co-trustee is reversed as a challenge to a surviving spouse's mental capacity to transfer trust assets and appoint a successor trustee did not violate the no contest clause in a family trust. A proceeding contesting a settlor's mental competence to exercise rights under a trust does not amount to an attack on the trust itself, unless it seeks to thwart the estate plan established by the trust. 

Read Johnson v. Greenelsh, No. S166747 [PDF]

Read Johnson v. Greenelsh, No. S166747 [HTML]

Appellate Information
Appeal from San Luis Obispo County Super. Ct. No. PR050017

Filed October 29, 2009

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

Counsel
For Appellant: Sandra Waite, David P. Weilbacher

For Appellee:  George-Cyr, LLP, Keith George, Ann C. Cyr

Cohen v. DIRECTV, Inc., No. B204986

In subscriber's suit against defendant for disseminating false advertising to induce him and others to purchase more expensive high definition services, trial court's order denying plaintiffs' motion for class certification is affirmed as the trial court did not apply an improper criterion in addressing the class certification issue and because it stated at least one valid reason for denying the motion for class certification.     

Read Cohen v. DIRECTV, Inc., No. B204986 [PDF]

Read Cohen v. DIRECTV, Inc., No. B204986 [HTML]

Filed October 28, 2009

Judges

Opinion by Judge Bigelow

Counsel

For Appellant:  King & Ferlauto, William T. King, Thomas M. Ferlauto

For Appellee: Kirkland & Ellis, Mellisa D. Ingalls, Becca Wahlquist, Shaun Paisley

311 S. Spring St. Co. v. Dep't. of Gen. Serv., No. B212165

In plaintiff's case against the state for breach of a lease, trial court's postjudgment order denying defendant's request to vacate that portion of a judgment awarding postjudgment interest against state at a rate of 10 percent is reversed and remanded as it gives effect to that portion of a judgment awarding postjudgment interest which is claimed to be void.  Furthermore, the award in excess of 7 percent interest is void and thus subject to collateral attack because it constitutes relief which the court had no power to grant.     

Read Read 311 S. Spring St. Co. v. Dep't. of Gen. Serv., No. B212165 [PDF]

Read 311 S. Spring St. Co. v. Dep't. of Gen. Serv., No. B212165 [HTML]

Filed October 28, 2009

Judges

Opinion by Judge Mallano

Counsel

For Appellant:  Edmund G. Brown, Jr., Attorney General, James M. Schiavenza, Senior Assistant Attorney General, Joel A. Davis, Supervising Deputy Attorney General, and Donna M. Dean, Deputy Attorney General

For Appellee:  Gilchrist & Rutter, Frank Gooch III, Phillipa L. Altmann; Gilbert Dreyfuss, Inc., and Gilbert Dreyfuss

People v. Alvarez, No. G040739

Conviction and sentencing of a defendant to an indeterminate life term plus 10 years for forcible lewd conduct on a child under the age of 14 and related sexual assault is affirmed where:  1) there is sufficient evidence to uphold defendant's convictions for forcible lewd conduct and aggravated sexual assault; 2) defendant's sentence is modified to comport with section 654; and 3) all other aspects of trial court's judgment is affirmed, as considering the entire record of defendant's prior conviction, there is substantial evidence from which the trial court could find the conviction involved assault with a deadly weapon and therefore constituted a serious felony under the Three Strikes law.   

Read People v. Alvarez, No. G040739 [PDF]

Read People v. Alvarez, No. G040739 [HTML]

Filed October 26, 2009

Judges

Opinion by Judge Bedsworth

Counsel

For Appellant:  Richard Power

For Appellee:  Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Collette C. Cavalier, Deputy Attorneys General,

Guzman v. County of Monterey, No. H030647

In plaintiffs' case against a county and the owner and operator of their mobile home park for fluoride contamination in the water, trial court's grant of county's demurrer to the third cause of action is vacated and reversed as California Code of Regulations section 64256(e) imposes upon the county the express mandatory duty to undertake a monthly review of all water quality monitoring data submitted to it in order to detect deviations from specific water quality standards.  Furthermore, this duty was designed to protect water consumers like plaintiffs from the type of harm they claim to have suffered.  

Read Guzman v. County of Monterey, No. H030647 [PDF]

Read Guzman v. County of Monterey, No. H030647 [HTML]

Filed October 28, 2009

Judges

Opinion by Judge Premo

Counsel

For Appellant:  Sullivan Hill Lewin Rez & Engel, Brian L. Burchett; Law Offices of Richard H. Rosenthal, Richard H. Rosenthal; Selden Law Firm, Lynde Selden, II

For Appellee:  Charles J. McKee, County Counsel; Patrick McGreal, Deputy County Counsel

People v. Jones, No. E045100

Defendant's conviction for arson and sentence of 16 years in state prison is affirmed where: 1) defendant's claim that the trial court failed to advise him of the direct consequences of admitting his prior arson conviction is rejected was waived; 2) there is nothing to indicate that mitigating factors were presented to the court at the time of sentencing in the form of a sentencing memorandum filed by defendant's counsel or during oral argument; 3) defendant's ineffective assistance of counsel claims are rejected; 4) trial court did not violate the prohibition against the dual use of facts in Pen. Code section 1170(b) or abuse its discretion by relying on defendant's prior arson conviction three times to reach the total term of 16 years in state prison; 5) trial court did not violate section 654 when it added five years under 667(a)(1) and another five years under section 451(a) and both sections qualify as status enhancements because they are based on defendant's status as a repeat offender and not on the conduct that served as the basis for the current offense; and 6) trial court did not violate defendant's jury trial guarantee by engaging in constitutionally impermissible factfinding in order to impose a prison sentence beyond the prescribed statutory maximum.     

Read People v. Jones, No. E045100 [PDF]

Read People v. Jones, No. E045100 [HTML]

Filed October 28, 2009

Judges

Opinion by Judge Ramirez

Counsel

For Appellant:  Stephen S. Buckley

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

Law Offices of Andrew L. Ellis v. Yang, No. B205452

In plaintiff's case against defendant claiming breach of contract in refusing to pay for legal representation, among others, trial court's denial of defendant's anti-SLAPP motion is vacated and remanded as the trial court lacked the jurisdiction to rule on the merits of the motion because, prior to the ruling, plaintiff had voluntarily dismissed the case before trial had commenced.    

Read Law Offices of Andrew L. Ellis v. Yang, No. B205452 [PDF]

Read Law Offices of Andrew L. Ellis v. Yang, No. B205452 [HTML]

Filed October 27, 2009

Judges

Opinion by Judge Aldrich

Counsel

For Appellant:  Law offices of Jeffrey T. Bell and Jeffrey T. Bell

For Appellee:  Law offices of Andrew L. Ellis, Andrew L. Ellis and Mitchell J. Langberg

In re Calvin P., No. D054830

Juvenile court's decision requiring the San Diego County Health and Human Services Agency to provide family maintenance services for plaintiff and her children is affirmed in part and reversed in part where: 1) the order requiring family maintenance services for father and the children is affirmed; but 2) the order for family maintenance services for mother is reversed and instead ordered that she be provided reasonable reunification services.     

Read In re Calvin P., No. D054830 [PDF]

Read In re Calvin P., No. D054830 [HTML]

Filed October 27, 2009

Judges

Opinion by Judge McDonald

Counsel

For Appellant: John J. Sansone  , County Counsel, John E. Philips, Chief Deputy County Counsel, Katherine R. Bird, Deputy County Counsel. 

For Appellee:  M. Elizabeth Handy

People v. Hochstraser, No. H032765

Trial court's conviction of defendant for first degree murder is affirmed where: 1) exigent circumstances justified a warrantless police entry into defendant's apartment to determine whether a missing domestic violence victim and her two year old child were injured or safe; and 2) the search of defendant's mother's car, in which the domestic violence victim's dismembered body parts were found, was amply supported by probable cause to believe that evidence of a crime would be found therein and was subject to the automobile exception to the warrant requirement.     

Read People v. Hochstraser, No. H032765 [PDF]

Read People v. Hochstraser, No. H032765 [HTML]

Filed October 27, 2009

Judges

Opinion by Judge McAdams

Counsel

For Appellant:  Maribeth Halloran

For Appellee:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Bruce Ortega, Deputy Attorney General. 

In re C.C., No. C061230

Juvenile court's determination that the defendant sent threatening or obscene texts to his former girlfriend and placing him on informal probation and order to write a 500-word essay on the Columbine High School shootings is reversed as there is lack of evidence to support the conclusion that the text messages were threatening or obscene as those terms are used in section 653m.     

Read In re C.C., No. C061230 [PDF]

Read In re C.C., No. C061230 [HTML]

Filed October 27, 2009

Judges

Opinion by Judge Cantil-Sakauye

Counsel

For Appellant:  Washington & Heithecker, George E. Washington, Philip H. Heithecker, Tahj E. Gomes

For Appellee:  Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Hokans Supervising Deputy Attorney General, Jeffrey A. White, Deputy Attorney General

Rands v. Rands, No. B208062

Probate court's order determining that settlor's revocation of a trust is ineffective due to his lack of capacity is affirmed as the certifications of mental competence are insufficient because neither physician who found mental competence was aware of the earlier certifications of mental incompetence. 

Read Rands v. Rands, No. B208062 [PDF]

Read Rands v. Rands, No. B208062 [HTML]

Filed October 27, 2009

Judges

Opinion by Judge Gilbert

Counsel

For Appellant:  Law Offices of Tamila C. Jensen, Tamila C. Jensen

For Appellee: Benton, Orr, Duval & Buckingham, Thomas E. Olson, Maureen M. Houska

Steadman v. Osborne, No. E046603

In plaintiff's case against defendant claiming political abuse and misuse of campaign funds in connection with a measure, trial court's denial of defendant's motion to strike the ninth cause of action in plaintiff's complaint is reversed as plaintiff does not have the right to prosecute her ninth cause of action as a private attorney general under sections 89512.5, 89513, and 89514 of the Political Reform Act.     

Read Steadman v. Osborne, No. E046603 [PDF]

Read Steadman v. Osborne, No. E046603 [HTML]

Filed October 27, 2009

Judges

Opinion by Judge Hollenhorst

Counsel

For Appellant:  Law Offices of Trent Thompson & Associates and Linda J. DeVore

For Appellee:  Bell, McAndrews & Hiltachk, Paul T. Gough and Brian Hildreth; Joseph Michael Wojcik

In plaintiffs' reverse validation action, raising constitutional challenges to the compact bonds arising from amendments involving Indian class III gaming, plaintiffs' appeal of trial court's judgment in favor of defendants is dismissed as Gov. Code section 63048.8(e) states the exclusive means to obtain review of such a judgment shall be by petition to the Supreme Court for writ of review. Defendants' cross-appeal is also dismissed as they have not offered any reason not to dismiss it.      

Read Hollywood Park Land Co., LLC. v. Golden State Transp. Fin. Corp., No. C057166 [PDF]

Read Hollywood Park Land Co., LLC. v. Golden State Transp. Fin. Corp., No. C057166 [HTML]

Filed October 27, 2009

Judges

Opinion by Judge Scotland

Counsel

For Appellant:  Howard Rice Nemerovski Canady Falk & Rabin, Steven L. Mayer, Amy E. Margolin

For Appellee:  Edmund G. Brown, Jr., Attorney General, Christopher E. Krueger, Senior Assistant Attorney General, Constance L. LeLouis, Supervising Deputy Attorney General, Jennifer Rockwell, Deputy Attorney General

Mennemeier, Glassman & Stroud, Andrew W. Stroud, Kelcie M. Gosling, Stephen Lau

Kaldenbach v. Mut. of Omaha Life Ins. Co., No. G038539

In plaintiff's consumer protection and fraud suit against defendant-insurance company concerning the sale of a so-called "vanishing premium" life insurance policy, denial of plaintiff's motion for certification of the action as a class action is affirmed as the court did not err in concluding that he had not demonstrated any of the requisites for class certification. 

Read Kaldenbach v. Mut. of Omaha Life Ins. Co., No. G038539 [PDF]

Read Kaldenbach v. Mut. of Omaha Life Ins. Co., No. G038539 [HTML]

Filed October 26, 2009

Judges

Opinion by Judge O'Leary

Counsel

For Appellant:  Coughlin & Conforti, Frank J. Coughlin and Beverly A. Blais

For Appellee:  Barger & Wolen, Sandra I. Weishart and Misty A. Murray

People v. Glenn, No. G040608

Trial court's adjudication of an 82 year-old defendant as a sexually violent predator and placement in involuntary commitment for an indeterminate term is affirmed and defendant's petition for habeas relief denied as the trial court did not err by precluding one of defendant's expert psychologists from testifying about studies and research conducted by nontestifying mental health experts concerning whether pedophilia is chronic.  Furthermore, even assuming that the Office of Administrative Law is correct in its determination that the assessment protocol is invalid, any error in using the evaluations based on that protocol did not deprive the trial court of fundamental jurisdiction over the SVPA commitment petition. 

Read People v. Glenn, No. G040608 [PDF]

Read People v. Glenn, No. G040608 [HTML]

Filed October 26, 2009

Judges

Opinion by Judge Fybel

Counsel

For Appellant:  James Roy Glenn, pro se

For Appellee:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Bradley Weinreb, Teresa Torreblanca and Elizabeth Voorhies, Deputy Attorneys General

In re J.B., No. F056765

Juvenile court's findings and orders regarding defendant's two children is affirmed as there was sufficient evidence to support the jurisdictional findings and the orders removing the children from her custody.     

Read In re J.B., No. F056765 [PDF]

Read In re J.B., No. F056765 [HTML]

Filed October 26, 2009

Judges

Opinion by Judge Kane

Counsel

For Appellant:  Neale B. Gold

For Appellee: John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel

Myers v. Trendwest Resorts, Inc., No. C058411

In plaintiff's action against her former employer for sexual harassment under the Fair Employment and Housing Act, judgment in favor of the employer is affirmed where: 1) a statement in defendant's statement of undisputed facts submitted in its summary judgment motion cannot be used against defendant at trial as an admission; and 2) trial court did not err in denying plaintiff's motion for JNOV as plaintiff waived her claim that no substantial evidence supports the defense verdict. 

Read Myers v. Trendwest Resorts, Inc., No. C058411 [PDF]

Read Myers v. Trendwest Resorts, Inc., No. C058411 [HTML]

Filed October 26, 2009

Judges

Opinion by Judge Sims

Counsel

For Appellant:  Law Offices of Stephan Williams and Stephan C. Williams; Law Offices of Daniel Bartley and Daniel R. Bartley

For Appellee:  Curiale Hirschfeld Kraemer, John F. Baum and Felicia R. Reid

People ex rel. Dep't of Transp. v. Acosta, No. C059064

In an eminent domain proceeding, judgment against Caltrans on defendants' goodwill claim and an order awarding litigation expenses to defendants are affirmed as the claim for goodwill damages is not preempted by the Petroleum Marketing Practices Act, and the award of litigation expense is supported by substantial evidence. 

Read People ex rel. Dep't of Transp. v. Acosta, No. C059064 [PDF]

Read People ex rel. Dep't of Transp. v. Acosta, No. C059064 [HTML]

Filed October 26, 2009

Judges

Opinion by Judge Hull

Counsel

For Appellant:  Ronald W. Beals, Thomas C. Fellenz, Joann Georgallis, and Harjinder K. Chima

For Appellee:  Greenan, Peffer, Sallander & Lally, Kevin D. Lally, John P. Makin, and Alice M. Peiler; Heiser Law Corporation and Jeffrey D. Heiser

In re Ramon M., No. G040765

Trial court's sentence of defendant, a juvenile convicted of criminal threats and related offenses, to one year in county jail is affirmed as defendant's claim regarding his probation terms is rejected.  The case is remanded for the limited purpose of declaring on the record whether prior adjudications were felonies or misdemeanors. 

Read In re Ramon M., No. G040765 [PDF]

Read In re Ramon M., No. G040765 [HTML]

Filed October 22, 2009

Judges

Opinion by Judge Moore

Counsel

For Appellant:  Susan L. Ferguson

For Appellee:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., Karl T. Terp and Scott Taylor, Deputy Attorneys General

People v. Vargas. No. B211821

Defendant's conviction and sentence for various sex offenses against four victims is reversed as to one of the counts as the court erred in admitting a witness's hearsay statements and the error was not harmless beyond a reasonable doubt as to defendant's conviction for that count.  

Read People v. Vargas. No. B211821 [PDF]

Read People v. Vargas. No. B211821 [HTML]

Filed October 22, 2009

Judges

Opinion by Judge Willhite

Counsel

For Appellant:  Richard A. Levy

For Appellee:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Robert David Breton, Deputy Attorneys General

People v. Rotroff, No. H033527

Trial court's order of commitment of a defendant for an indeterminate terms that followed his waiver of a jury trial and submission upon documentary reports, plus the trial court's finding that he was a sexually violent predator within the meaning of Welfare and Institutions Code section 6604, is affirmed where: 1) defendant's due process claim is rejected as, even with the provision of an indeterminate term, the Sexually Violent Predator Act (SVPA) as a whole continues to ensure that the duration of actual commitment under an order of commitment for an indeterminate term is consistent with constitutional due process limits; 2) defendant's equal protection claim is rejected; 3) defendant's indeterminate commitment does not violate the federal constitutional prohibitions against ex post facto laws and double jeopardy; and 4) the SVPA does not violate the federal first amendment right to petition the court for redress of grievances.     

Read People v. Rotroff, No. H033527 [PDF]

Read People v. Rotroff, No. H033527 [HTML]

Filed October 22, 2009

Judges

Opinion by Judge Elia

Counsel

For Appellant:  Gordon B. Scott

For Appellee:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Sr. Assistant Attorney General, Gregg Zywicke and Bridget Billeter, Deputy Attorneys General

Wells Fargo Bank v. Neilsen, No. A122626

In plaintiff's petition to determine priority of the liens from a foreclosure sale of property, trial court's determination that the remaining funds were properly allocated to the other two lien holders is affirmed as the court did not err in relying on Bratcher v. Buckner (2001) 90 Cal.App.4th 1177, a judicial foreclosure case, in a non-judicial foreclosure case such as the present case.   

Read Wells Fargo Bank v. Neilsen, No. A122626 [PDF]

Read Wells Fargo Bank v. Neilsen, No. A122626 [HTML]

Filed October 22, 2009

Judges

Opinion by Judge Haerle

Counsel

For Appellant:  Benjamin R. Levinson

For Appellee: Gary L. Barr, Mark S. Blackman, Alpert, Barr & Grant, APLC; Edward A. Treder, Barrett Daffin Frappier Treder & Weiss, LLP; Robert J. Curtis, Kristen C. Lu, Curtis Law Group

People v. Jackson, No. H032539

Trial court's conviction of defendant for attempted criminal threats is reversed as the trial court's instructions did not adequately apprise the jury of the factual elements required to support the lesser crime of attempted criminal threats, and in order for the jury to have found defendant guilty, it must have found that he specifically intended to make a threat that could reasonably cause the person to be in sustained fear for his or her safety or for his or her family's safety.   

Read People v. Jackson, No. H032539 [PDF}

Read People v. Jackson, No. H032539  [HTML]

Filed October 22, 2009

Judges

Opinion by Judge Premo

Counsel

For Appellant:  David D. Martin

For Appellee:  Edmund G. Brown, Jr., Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Martin S. Kaye, Supervising Deputy Attorney General

Burlage v. Sup. Ct., No. B211431

In plaintiffs' dispute over the sale of a house purchased from defendant, trial court's decision to vacate the arbitrator's award in favor of the plaintiffs is affirmed and plaintiffs' petition for writ of mandate denied  as the arbitrator excluded material evidence that substantially prejudiced defendant pursuant to Code of Civil Procedure section 1286.2   

Read Burlage v. Sup. Ct., No. B211431

Filed October 20, 2009

Judges

Opinion by Judge Gilbert

Counsel

For Appellant:  Hoefflin & Associates, ALC, Richard M. Hoefflin, Jason M. Burrows; Lascher & Lascher, Wendy Cole Lascher

For Real Party in Interest: Horvitz & Levy, Lisa Perrochet, John A. Taylor, Jr.; Lang, Hanigan & Carvalho, LLP, John D. Lang; Smith Law Firm, Craig R. Smith

White v. Cridlebaugh, No. F053843

In plaintiffs' action against various defendants including a building contractor involved in the construction of their retirement home, the judgment of the trial court is modified as the corporation that acted as the building contractor on the project violated the California's licensure requirements and, based on that violation, the homeowners are entitled under Business and Professions Code section 7031(b) to recover all compensation paid to the contractor for the unlicensed work. Furthermore, as a matter of statutory construction, the recovery authorized by section 7031(b) may not be reduced by an unlicensed contractor's claim of offset for materials and services provided in connection with the unlicensed work.   

Read White v. Cridlebaugh, No. F053843 [PDF]

Read White v. Cridlebaugh, No. F053843 [HTML]

Filed October 20, 2009

Judges

Opinion by Judge Dawson

Counsel

For Appellant:  Ana M. Soares

For Appellee:  No Appearance

Dep't of Transp. v. State Pers. Bd., No. B210334

In plaintiff's petition for writ of mandamus seeking to apply the exclusionary rule in a civil disciplinary proceeding to bar introduction of a firearm and ammunition seized from his car and his pockets by the California Highway Patrol resulting in termination of his employment with Caltrans, judgment of the trial court is affirmed as, although an illegal search took place, the exclusionary rule does not apply because the search occurred during a criminal investigation, and was not conducted by the agency that employs the worker being disciplined. Thus, excluding evidence in an administrative disciplinary proceeding would have no deterrent effect on a state law enforcement officer investigating reports of a crime occurring at another state agency. 

Read Dep't of Transp. v. State Pers. Bd., No. B210334 [HTML]

Read Dep't of Transp. v. State Pers. Bd., No. B210334 [PDF]

Filed October 20, 2009

Judges

Opinion by Judge Boren

Counsel

For Appellant: Gerald A. James 

For Appellee:  Ronald W. Beals, Chief Counsel, Linda Cohen Harrel, Deputy Chief Counsel, Robert W. Vidor, Alexander D. DeVorkin, Carol Quan, William H. Rittenburg, Jerald M. Montoya  

Rehman v. Dep't of Motor Vehicles, No. C060579

Trial court's denial of plaintiff's petition for a writ of mandate seeking an order directing the DMV to rescind its suspension of his driver's license is affirmed as Veh. Code section 13557(b)(2)(C)(i) is construed as including a provision that allows the DMV to sustain an order of suspension imposed under section 13353.2(a)(3) on a person for driving a vehicle that requires a commercial driver's license with a blood alcohol content of 0.04 percent or more where there is proof by a preponderance of the evidence that the person's blood alcohol content was 0.04 percent or more.     

Read Rehman v. Dep't of Motor Vehicles, No. C060579 [HTML]

Read Rehman v. Dep't of Motor Vehicles, No. C060579 [PDF]

Filed October 20, 2009

Judges

Opinion by Judge Robie

Counsel

For Appellant:  Walter S. Nomura

For Appellee:  Edmund G. Brown, Jr., Attorney General, Alicia M. B. Fowler, Senior Assistant Attorney General, David J. Neill, Supervising Deputy Attorney General, Julie L. Harlan, Deputy Attorney General.

In re R.N., No. B209458

Dependency court's order appointing minor's aunt as the successor guardian and a separate order summarily denying father's subsequent Welfare & Institutions Code section 388 petition challenging the appointment is reversed as the failure to consider the provisions of section 366.3(f) deprived father of his rights to participate, to be considered as the guardian, and to be eligible to receive reunification services without the requirement that he file his own section 388 petition. 

Read In re R.N., No. B209458 [HTML]

Read In re R.N., No. B209458 [PDF]

Filed October 20, 2009

Judges

Opinion by Judge Zelon

Counsel

For Appellant:  Joseph D. MacKenzie

For Appellee:  Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and O. Raquel Ramirez, Deputy County Counsel

Alvis v. County of Ventura, No. B212337

In plaintiffs' case against county alleging dangerous condition of public property, nuisance and inverse condemnation arising from a massive landslide after heavy rains in La Conchita in 2005, summary judgment on all causes of action except inverse condemnation in favor of county is affirmed where: 1) plaintiffs' expert's declaration contained statements that conflict with statements he made in a previous report on a material issue and because the conflict was unexplained, the declaration does not establish a triable issue of fact; and 2) the public entity approved a design that contemplated the possibility of a specific change of condition that occurred in this case, and thus, the public entity retains its immunity. 

Read Alvis v. County of Ventura, No. B212337 [HTML]

Read Alvis v. County of Ventura, No. B212337 [PDF]

Filed October 20, 2009

Judges

Opinion by Judge Gilbert

Counsel

For Appellant:  Loeb & Loeb, Anthony Murray,  Michael Thurman, Sharon S. Mequet and Daniel J. Friedman

For Appellee:  Richards, Watson & Gershon, Robert C. Ceccon, Saskia T. Asamura, T. Peter Pierce and Michal F. Yoshiba

People v. Smith, No. B214460

Trial court's conviction and sentence of defendant for corporal injury to a cohabitant and criminal threats is modified in part and affirmed where, there was substantial evidence defendant made criminal threats within the meaning of Penal Code section 422.     

Read People v. Smith, No. B214460

Filed October 19, 2009

Judges

Opinion by Judge Turner

Counsel

For Appellant:  Murray A. Rosenberg

For Appellee:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II and Sonya Roth, Deputy Attorneys General

People v. Banos, No. B194272

Trial court's conviction of defendant for second degree murder of his ex-girlfriend is affirmed where: 1) under Giles II, defendant's out of court statements to police during prior domestic violence investigations were admissible under the forfeiture by wrongdoing exception to the confrontation clause because the defendant killed the witness for the purpose of making her unavailable as a witness at trial; and 2) that defendant may have also had other motives for the killing does not preclude application of the exception. 

Read People v. Banos, No. B194272

Filed October 19, 2009

Judges

Opinion by Judge Rubin

Counsel

For Appellant:  Leslie Conrad

For Appellee:  Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan and Jason Tran, Deputy Attorneys General

People v. Munoz, No. C058521

Trial court's conviction of defendant for attempted murder, assault, and related crimes is affirmed but the case is remanded for resentencing, and if the court elects to reimpose a consecutive term on defendant for shooting at an invididual from a vehicle, the corresponding enhancement is 25 years to life. 

Read People v. Munoz, No. C058521

Filed October 15, 2009

Judges

Opinion by Judge Cantil-Sakauye

Counsel

For Appellant:  Rita Barker

For Appellee:  Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Kokans and Stephen G. Herndon, Supervising Deputy Attorneys General, Darren K. Indermill, Deputy Attorney General

A.M. v. Albertsons, LLC, No. A122307

In plaintiff's action against her employer under the state Fair Employment and Housing Act (FEHA), trial court's judgment in favor of plaintiff and award of $200,000 in damages is affirmed where: 1)the court properly denied defendant's motion for nonsuit as it failed to provide reasonable accommodation for plaintiff and this failure was substantial; 2) trial court properly refused to give proposed jury instructions that were consistent with defendant's flawed interpretation of the underlying law; 3) trial court's comment on plaintiff's burden of proof is unlikely to have changed the outcome of the trial and no prejudice resulted, assuming there was error.   

Read A.M. v. Albertsons, LLC, No. A122307

Filed October 15, 2009

Judges

Opinion by Judge Reardon

Counsel

For Appellant:  Epstein Becker & Green, Steven R. Blackburn, Leslie J. Mann

For Appellee:  Boxer & Gerson, Leslie F. Levy, Jean K. Hyams, Law Offices of Ellen Lake, Ellen Lake

People v. Villa, No. C059808

Trial court's conviction and sentence of defendant as an adult to two years in state prison for gross negligence in discharging a firearm, possession of a firearm by a juvenile previously adjudged a ward of the juvenile court, and related offenses is affirmed where: 1) the prohibition of juvenile possession of firearms is not unconstitutional as applied; 2) the prohibition of possession of a loaded firearm is constitutional; and 3) the trial court erred by sentencing defendant without the fitness hearing required by Penal Code section 1170.17, but the error was harmless absent a showing to the contrary.     

Read People v. Villa, No. C059808

Filed October 15, 2009

Judges

Opinion by Judge Robie

Counsel

For Appellant:  Jackie Menaster

For Appellee:  Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Hokans, Supervising Deputy Attorney General, Jeffrey A. White, Deputy Attorney General

Jensen v. Franchise Tax Bd., No. B211815

In plaintiff's challenge to the constitutionality of the Mental Health Services Act, which expands funding for mental health services for all Californians by imposing an additional tax of 1 percent on annual income in excess of $1 million, trial court judgment is affirmed as there is no constitutional infirmity in the Act as an income tax may be rationally based on a taxpayer's income level and ability to pay, and there is no need to show that a particular taxpayer personally benefits from a tax assessed for the public good.     

Read Jensen v. Franchise Tax Bd., No. B211815

Filed October 14, 2009

Judges

Opinion by Judge Boren

Counsel

For Appellant:  Lappen and Lappen, Jonathan Bailey Lappen; Moxon & Kobrin, Kendrick L. Moxon

For Appellee:  Edmund G. Brown, Jr., Attorney General, W. Dean Freeman, Felix E. Leatherwood, Anthony F. Sgherzi, Deputy Attorneys General

In a labor dispute between firefighter's union and the city, trial court's ruling allowing the Public Employment Relations Board (PERB) to intervene and granting its motion to dismiss the action based on the agency's exclusive initial jurisdiction over the underlying labor dispute is reversed as, under the amended Myers-Milias-Brown Act section 3509(a), the court now has exclusive jurisdiction to determine the disputed issues in the case.  

Read City of San Jose v. Int'l Ass'n of Firefighters, Local 230, No. H032097

Filed October 14, 2009

Judges

Opinion by Judge McAdams

Counsel

For Appellant:  Wylie, McBride, Platten & Renner, Christopher E. Platten, Mark Renner

For Appellee: Office of the City Attorney, Richard Doyle, City Attorney, George Rios, Asst. City Attorney, Robert Fabela, Sr. Deputy City Attorney

People v. Henning, No. C060371

Defendant's conviction for burglary, attempted robbery, and related crimes is affirmed as, although the trial court erred in refusing to allow defendant to exercise his personal statutory right to enter a plea of not guilty by reason of insanity (NGI) and in failing to remove defense counsel who refused to allow defendant to enter his NGI plea, both of the errors are harmless in light of abundant, uncontradicted evidence in the record demonstrating there was no factual basis for a finding of not guilty by reason of insanity where defendant claimed he was hallucinating from crystal methamphetamine use while playing the video game Grand Theft Auto for 10 hours.      

Read People v. Henning, No. C060371

Filed October 14, 2009

Judges

Opinion by Judge Sims

Counsel

For Appellant:  Law Offices of John F. Schuck and John F. Schuck

For Appellee:  Edmund G. Brown Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, David A. Rhodes and Ivan P. Marrs, Deputy Attorneys General

Smith v. Sup. Ct., No. A124763

Defendant's petition for writ relief from trial court's denial of his motion to dismiss is granted as the trial court erred by denying defendant's motion as he was not brought to trial within 60 days of his arraignment and it is clear that he did not generally waive his speedy trial rights.     

Read Smith v. Sup. Ct., No. A124763

Filed October 13, 2009

Judges

Opinion by Judge Bruiniers

Counsel

For Appellant:  Jeff Adachi, Public Defender for the City and County of San Francisco, Teresa Caffese, Chief Attorney, Doug Welch and Charmaine Yu, Deputy Public Defenders

For Appellee:  Edmund G. Brown, Jr., Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan and Stan Helfman, Deputy Attorneys General

Carson Citizens for Reform v. Kawagoe, No. B209424

In plaintiffs' efforts to recall the city mayor, trial court's judgment and order awarding attorney fees against the county register and the city clerk is reversed where: 1) although defendant-city clerk's appeal from the judgment and order awarding attorney's fees is moot as to the portion of the judgment issuing the writ of mandate because the recall election has been held, the appeal is not moot as to the declaratory relief provided because the recall proponents' status as the successful parties for purposes of an award of attorney fees depends on the propriety of the trial court's ruling on the merits; 2) under the plain language of Elections Code sections 103 and 11303, a request to withdraw a signature from a recall petition is effective, without regard to whether the voter signs the petition before or after signing the request, as long as the request is filed with the appropriate election official prior to the filing of the petition; and 3) the withdrawal requests were valid and the city clerk's initial certification of the recall petition as insufficient was incorrect, as a voter's request to withdraw his or her signature from a recall petition is not a petition or paper that requires the signature of a circulator under section 104.   

Read Carson Citizens for Reform v. Kawagoe, No. B209424

Filed October 13, 2009

Judges

Opinion by Judge Kriegler

Counsel

For Appellant: Aleshire & Wynder, William W. Wynder and Douglas P. Haubert

For Appellee: Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Patrice J. Salseda, Senior Deputy County Counsel

Schmidli v. Pearce, No. C058270

In plaintiffs' quiet title action to extinguish a lien of deed of trust held by defendants against their property, summary judgment in favor of plaintiffs is reversed as a notice of default does not constitute a part of the record for purposes of Civil Code section 882.020(a) where the loan's maturity date was not ascertainable from the record, and as such, the defendants' rights to enforce the terms of the deed of trust had not expired and will not expire until 60 years following the recording of the deed of trust. 

Read Schmidli v. Pearce, No. C058270

Filed October 13, 2009

Judges

Opinion by Judge Nicholson

Counsel

For Appellant: Heiser Law Corporation and Jeffrey D. Heiser

For Appellee: Mullen Sullivan & Newton and Craig Rasmussen

Nielsen v. Gibson, No. C059291

In plaintiffs' quiet title action against executor of the estate located adjacent to their property, the trial court did not err in finding that the landowner had constructive notice the plaintiffs possessed the subject property during the whole of the five-year period.     

Read Nielsen v. Gibson, No. C059291

Filed October 13, 2009

Judges

Opinion by Judge Sims

Counsel

For Appellant:  John M. Latini

For Appellee:  Meegan, Hanschu & Kassenbrock and Peter J. Pullen

People v. Vazquez, No. B213000

Conviction and sentence of defendant for first degree murder is affirmed as the jury's true finding on the gang enhancement allegation is supported by substantial evidence and the trial court's restitution fine is modified.     

Read People v. Vazquez, No. B213000

Filed October 13, 2009

Judges

Opinion by Judge Yegan

Counsel

For Appellant:  Susan K. Keiser

For Appellee:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan, Supervising Deputy Attorney General, Julie A. Harris, Deputy Attorney General.

Esquivel v. Worker's Comp. Appeals Bd., No. D054197

A ruling reversing a workers' compensation judge's findings and awards in favor of claimant is affirmed where the Worker's Compensation Appeals Board did not err in concluding that claimant's new injuries are not compensable under the Worker's Compensation Act because they clearly occurred outside the reasonable geographic area of her employer's compensability risk.     

Read Esquivel v. Worker's Comp. Appeals Bd., No. D054197

Filed October 13, 2009

Judges

Opinion by Judge Nares

Counsel

For Appellant:  Law Offices of O'Mara & Hampton and Thomas I. Hampton

For Appellee:  Neil P. Sullivan and Vincent Bausano

People v. Bleich, No. D053808

Trial court's denial of defendant's petition for a judicial finding of factual innocence following the dismissal of charges that she made a terrorist threat and stalked the victim is affirmed as, while the People failed in their burden to present evidence sufficient to bind defendant over for trial, she failed to sustain her burden to show that she is factually innocent of the charges brought against her such that she never should have been subjected to criminal process in the first place.   

Read People v. Bleich, No. D053808

Filed October 8, 2009

Judges

Opinion by Judge Benke

Counsel

For Appellant:  Keith H. Rutman

For Appellee:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Michael T. Murphy, Deputy Attorneys General

Nazir v. United Airlines, Inc. , No. A121651

In plaintiff's race, employment discrimination lawsuit against United Airlines, trial court's grant of summary judgment in favor of defendants is reversed as to eight causes of actions as they must be decided by the jury.  Furthermore, the trial court's order sustaining  763 of 764 of defendant's objections was a manifest abuse of discretion. 

Read Nazir v. United Airlines, Inc. , No. A121651

Filed October 8, 2009

Judges

Opinion by Judge Richman

Counsel

For Appellant:  Law Offices of Phil Horowitz, Phil Horowitz and Moira McQuaid

For Appelle:  Littler Mendelson, Philip L. Ross, Nancy E. Pritikin, and Kurt R. Bockes

Great Am. Ins. Co. v. Sup. Ct., No. B203121

Plaintiff's petition for writ of mandate is granted as the trial court erred in issuing a stay of the declaratory relief action as there are no issues which would overlap with the issues to be litigated in the underlying action, and that it is premature to consider any issues which may be raised in a bad faith counterclaim which has not yet been filed 

Read Great Am. Ins. Co. v. Sup. Ct., No. B203121

Filed October 9, 2009

Judges

Opinion by Judge Croskey

Counsel

For Appellant:  Duane Morris, Yvette D. Roland, Katherine L. Nichols and William J. Baron

For Appelle:  Caufield & James, Jeffery L. Caufield and Ken E. James

People v. Coyle, No. C058218

Sentence and conviction of defendant for felony murder is reversed and remanded in part where: 1) conviction on the charge of murder during commission of burglary is modified to reflect defendant was convicted of murder with true findings on the special circumstances that the murder was committed during the commission or attempted commission of a robbery and a burglary, plus true findings that defendant personally used a firearm in the commission of the offense, and that a principal was armed with a firearm in the commission of the offense; and 2) the portion of the sentence imposed by the trial court that imposed a triple indeterminate term of life without the probability of parole (LWOP) for the murder during the commission of burglary conviction is reversed and vacated, and instead impose a single indeterminate LWOP; and 3) defendant's convictions for murder during commission of robbery and second degree murder are reversed and vacated.   

Read People v. Coyle, No. C058218

Filed October 9, 2009

Judges

Opinion by Judge Cantil-Sakauye

Counsel

For Appellant:  Jerry D. Whatley, under appointment by the Court of Appeal

For Appelle: Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Daniel B. Bernstein, Deputy Attorneys General

Kinsey v. Union Pac. R.R. Co.C056561

In plaintiff's Federal Employers Liability Act (FELA) action against the defendant-railroad company, trial court's verdict in favor of defendant is reversed as to the portion of the cost award that allowed defendant to recover expert witness fees as costs as federal law does not authorize an award of expert witness fees to a defendant who has made a rejected offer of settlement and then obtains a defense verdict.   

Read Kinsey v. Union Pac. R.R. Co.C056561

Filed October 9, 2009

Judges

Opinion by Judge Nicholson

Counsel

For Appellant:  Hildebrand, McLeod & Nelson, Inc. and John Furstenthal

For Appelle: Randolph Cregger & Chalfant, Joseph P. Mascovich, Adrian L. Randolph, Michael L. Johnson, and Brian W. Plummer

In re Damian C., No. D054918

In a case brought by the Health and Human Services Agency to remove defendant's one-year-old son on the basis of her drug use, trial court's jurisdictional and dispositional orders are affirmed, but the matter is remanded to the juvenile court to vacate its finding that ICWA does not apply and to instruct the agency to complete ICWA inquiry and notice.   

Read In re Damian C., No. D054918

Filed October 8, 2009

Judges

Opinion by Judge McConnell

Counsel

For Appellant:  Sahyeh Samantha Fattahi

For Appelle:  John J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa M. Maldonado, Deputy County Counsel

In re J.O., No. B211535

In dependency proceedings, trial court's jurisdictional findings and orders that pertained to plaintiff despite having ruled that he was not the presumed father, are affirmed in part, reversed in part and remanded where: 1) the evidence established plaintiff's presumed father status; 2) the finding of jurisdiction under Welfare and Institutions Code, section 300(b) is reversed as there is no causal nexus between the court's findings of serious injury and the findings relating to plaintiff; 3) court's finding of jurisdiction under section 300(g) is affirmed as it is supported by plaintiff's failure to provide financial support for over a decade combined with his demonstrated lack of interest in the children's welfare; and 4) on remand, the trial court must make the inquiry concerning plaintiff's possible Indian ancestry required by ICWA and the California Rules of Court.     

Read In re J.O., No. B211535

Filed October 7, 2009

Judges

Opinion by Judge Manella

Counsel

For Appellant:  Lori Fields, under appointment of the Court of Appeal

For Appelle:  Raymond G. Fortner, County Counsel, James M. Owens, Assistant County Counsel and Byron G. Shibata, Senior Associate County Counsel

In defendants' action for equitable indemnity against codefendants arising from a real estate transaction involving a failure to disclose existence of an easement, trial court's dismissal of defendants' cross-complaint is reversed as defendants were not precluded from filing a cross-complaint seeking equitable indemnity as it is authorized by the express provisions of Code of Civil Procedure section 428.10(b), as interpreted in American Motorcycle Ass'n. v. Sup. Ct. (1978) 20 Cal.3d 578.  Furthermore, the circumstances of this case do not bring it within the limited exception barring the assertion of a cross-complaint where to do so would operate inequitably or in derogation of public policy.     

Read Paragon Real Estate Group of San Francisco, Inc. v. Hansen, No. A121567

Filed October 7, 2009

Judges

Opinion by Judge Ruvolo

Counsel

For Appellant:  Parker & Crosland, David M. Parker and C. Royda Crosland

For Appelle:  Livingston Mix, Mary E. Mix, Dennis L. Livingston

Fariba v. Dealers Servs. Corp., D053162

In an action involving breach of contract and fraud claims, trial court's judgment in favor of plaintiff is affirmed where: 1) the court properly instructed the jury that plaintiff's interest in his consigned vehicles was superior to that of defendant-secured creditor if the secured creditor had actual knowledge that the used car retailer was substantially engaging in selling vehicles that belonged to others; 2) there is substantial evidence the secured creditor had such knowledge; 3) the court properly instructed the jury on the definition of possession, and there is substantial evidence to support the jury's finding plaintiff had possession of the vehicles; and 4) whether the court erred in granting a directed verdict on plaintiff's fraud and breach of contract claims need not be addressed as the jury's verdict in favor of the plaintiff is upheld. 

Read Fariba v. Dealers Servs. Corp., D053162

Filed October 7, 2009

Judges

Opinion by Judge Nares

Counsel

For Appellant:  Law Offices of Paul D. Turner & Associates, Paul D. Turner, Law Offices of Zvi "Hershy" Silver and Zvi Aria Silver

For Appelle:  Prenovost, Normandin, Bergh and Dawe, Tom R. Normandin, Jr., and Paula M. Harrelson

In a challenge to two rules adopted by respondent-Air Pollution Control District (District), trial court's judgment in favor of District is affirmed as the District had the power to adopt the indirect source review (ISR), intended to encourage developers to reduce indirect pollution caused by new development projects, and the fees imposed pursuant to those rules are valid regulatory fees.     

Read California Bldg. Indus. Ass'n v. San Joaquin Valley Air Pollution Control Dist., No. F055448

Filed October 6, 2009

Judges

Opinion by Judge Levy

Counsel

For Appellant:  Sheppard, Mullin, Richter & Hampton, David P. Lanferman and James F. Rusk; Law Offices of Walter P. McNeill and Walter P. McNeill

For Appelle:  Philip M. Jay and Catherine T. Redmond

People v. Cavallaro, No. H032499

Judgment of the trial court, that the imposition of mandatory sex offender registration under Penal Code section 290 was prohibited on a defendant convicted of lewd and lascivious acts involving 14- and 15-year old victims, is reversed where barring mandatory registration after a conviction under section 288(c)(1) was an unwarranted extension of People v. Hofsheier, 37 Cal.4th 1185 (2007). 

Read People v. Cavallaro, No. H032499

Filed October 6, 2009

Judges

Opinion by Judge Duffy

Counsel

For Appellant:  Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Catherine A. Rivlin, Laurence Sullivan, Supervising Deputy Attorney General, Amy Haddix, Deputy Attorney General

For Appelle:  Jeremy D. Blank, The Law Office of Jeremy D. Blank

Gorman v. Tassajara Dev. Corp., No. H031196

In plaintiffs' construction defect case against numerous defendants including general contractor, district court's award of attorneys' fees and costs to plaintiffs is reversed and remanded where, given the apparent arbitrariness of the awards, the court is unable to find a combination of numbers adding up to the precise cost awarded and there is no reasonable connection between the lodestar amount and the trial court's award of attorneys' fees.     

Read Gorman v. Tassajara Dev. Corp., No. H031196

Filed October 6, 2009

Judges

Opinion by Judge Rushing

Counsel

For Appellant:  Bowman & Brooke, Daniel J. Smith, Gorman & Miller, John C. Gorman, Charles J. Stiegler

For Appelle:  Archer Norris, W. Eric Blumhardt, William H. Staples, William L. Coggshell, Selman Breitman, Lincoln V. Horton, Elaine F. Harwell

In re Marriage of Knowles, No. C057851

Trial court's modification of the father's child support obligation is reversed and remanded as the court violated Family Code section 4057.5(a)(1) by considering the half of the community income attributable to the father's subsequent spouse.   

Read In re Marriage of Knowles, No. C057851

Filed October 6, 2009

Judges

Opinion by Judge Nicholson

Counsel

For Appellant:  Bill J. Cook Law Corporation and Bill J. Cook

For Appelle:  Les Hait Law Corporation and Les Hait

People v. Galan, No. B209903

In defendant's conviction for assault with a deadly weapon, trial court's denial of defendant's Pitchess motion to discover police officers' confidential personnel records is affirmed as the he failed to set forth a plausible factual scenario in support of his claim of officer misconduct. 

Read People v. Galan, No. B209903

Filed October 5, 2009

Judges

Opinion by Judge Yegan

Counsel

For Appellant:  Judith Vitek, under appointment by the Court of Appeal

For Appelle:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senioer Assistant Attorney General, Sarah J. Farhat, Catherine Okawa Kohm, Deputy Attorneys General

Trial court's grant of summary judgment in favor of the defendant-insurance company is reversed and remanded where: 1) any claims presented by the plaintiff-corporation that employed the nurse were covered claims despite the fact that the corporation changed its name to a name not listed in the insurance policy; and 2) the phrase, "original claimant under the insurance policy in his or her name" includes the affiliated corporation into which the employer corporation was merged because the merger was an internal restructuring of a family of corporations, and did not expand or otherwise change the ownership or control of the operations, and because the surviving corporation continued the employer corporations' corporate activities as well as its hospital operations. 

Read Catholic Healthcare W. v. California Ins. Guarantee Ass'n., No. F055842

Filed October 5, 2009

Judges

Opinion by Judge Ardaiz

Counsel

For Appellant:  Hayes Davis Bonino Ellingson McLay & Scott, Mark G. Bonino and Phuong N. Fingerman

For Appelle:  Guilford Steiner Sarvas & Carbonara and Alan D. Sarvas

In re T.P., No. B209520

Judgment of the juvenile court, finding that the defendant is ineligible for deferred entry of judgment (DEJ), is reversed and remanded as the juvenile court did not expressly revoke defendant's probation, and thus, he is statutorily eligible for DEJ pursuant to section 790.   

Read In re T.P., No. B209520

Filed October 5, 2009

Judges

Opinion by Judge Gilbert

Counsel

For Appellant:  Richard B. Lennon, under appointment by the Court of Appeal

For Appelle:  Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Lance E. Winters, Deputy Attorney General.

People v. Gordon, No. B209075

Defendant's conviction is reversed as collateral estoppel barred the court from convicting defendant of being a felon in possession of a firearm after the jury acquitted him on the charges during which the firearm possession allegedly occurred. Defendant's claim that he was not properly advised of the rights he was waiving is rejected as he knowingly and voluntarily waived his rights to jury trial on the gun possession charge. 

Read People v. Gordon, No. B209075

Filed October 3, 2009

Judges

Opinion by Judge Epstein

Counsel

For Appellant:  Mark Alan Hart, under appointment by the Court of Appeal

For Appelle:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert C. Schneider, Deputy Attorneys General

Buesa v. City of Los Angeles, No. B212854

In plaintiff-police officers' lawsuit against the city of Los Angeles under the Public Safety Officers Procedural Bill of Rights Act (POBRA) claiming that a perjured declaration submitted by the city deprived them of their statute of limitations defense in an administrative mandamus proceeding over their discharges, judgment on the pleadings in favor of defendant is affirmed as plaintiffs' action under POBRA is barred because it constitutes an impermissible collateral attack on the mandate judgment. 

Read Buesa v. City of Los Angeles, No. B212854

Filed October 3, 2009

Judges

Opinion by Judge Epstein

Counsel

For Appellant:  Law Office of David W. Allor and David W. Allor

For Appelle:  Rockard J. Delgadillo and Carmen Trutanich, City Attorneys, and Paul L. Winnemore, Deputy City Attorney

Guardianship of K.S., No. H032581

In an action involving the removal of a trustee of a life insurance trust established to provide for petitioner's son and his brother, trial court's orders denying respondent-trustee's objections, approving a third guardianship accounting petition, and ordering trustee to pay petitioner compensatory damages in the amount of $77,573.40 is affirmed as trial court did not abuse its discretion in overruling trustee's objections, nor in finding unreasonable and bad-faith assertion of meritless objections in awarding the compensatory damages.     

Read Guardianship of K.S., No. H032581

Filed September 30, 2009

Judges

Opinion by Judge Rushing

Counsel

For Appellant:  WealthPLAN, Frances B. Doyle

For Appelle:  Law offices of Kenneth C. Moore, Kenneth C. Moore, Law Offices of John H. Coward, John H. Coward

Pryor v. Pryor, No. B207398

Trial court's order dismissing plaintiff's petition to annul the marriage of her late father, comedian Richard Pryor, and her stepmother is affirmed as she lacks standing to petition to annul the marriage.     

Read Pryor v. Pryor, No. B207398

Filed September 30, 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