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

November 2009 Archives

Duncan v. Workers' Comp. Appeals Bd., No. H034040

Plaintiff's petition for review of a decision by the Workers' Compensation Appeals Board is granted and the Board's decision annulled as the cost of living adjustment pursuant to Labor Code section 4659(c) for life pensions and total disability indemnity are added to those payments, per the words of the statute, starting January 1, 2004, and every January 1 thereafter.       

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Appellate Information

Filed November 25, 2009

Judges

Opinion by Judge Elia

Counsel
For Appellant:   Vanessa L. Holton, Chief Counsel, Steven A. McGinty, Assistant Chief Counsel, Carol Belcher, Anthony Mischel and Jesse N. Rosen, Staff Counsel, Dept. of Industrial Relations, Office of the Director

For Appellee:  Butts & Johnson, Arthur L. Johnson and Heather A. Harper

People v. Smith, No. B212368

In a prosecution of defendant for grand theft and securities crimes, trial court's admission of agreements executed by individuals named in dismissed counts is affirmed where: 1) the documents were authenticated by their content and by circumstantial evidence and their use did not violate the hearsay rule; 2) with respect to Evidence Code section 352, defendant did not raise an objection to the documents based on that provision; 3) even if the documents were improperly admitted, the evidence supporting the charges was so overwhelming that the use of the documents added little to the prosecution's case and any error was harmless; 4) with respect to alleged prosecutorial misconduct, it resulted from a misstatement and had no impact on the verdict; and 5) trial court did not err in its Pritchess review.     

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Appellate Information

Filed November 25, 2009

Judges

Opinion by Judge Manella

Counsel
For Appellant:   Mark S. Givens

For Appellee:   Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Lance E. Winters Sullivan, Deputy Attorneys General

In re Marriage of Tejeda, No. H033001

Trial court's order declaring plaintiff a putative spouse on the ground that the parties' marriage was invalid because the husband already had a wife when he married plaintiff is affirmed as, applying the unambiguous language of Family Code section 2251, the parties' union is a putative marriage and the property acquired during that union is quasi-marital property subject to division as community property. 

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Appellate Information

Filed November 25, 2009

Judges

Opinion by Judge McAdams

Counsel
For Appellant:   Baskin & Grant, LLP, Caleb S. Baskin, Heidi Simonson

For Appellee:  Dolly Ares

Align Tech. v. Tran, No. H033161

In plaintiff's suit against its former employee for breach of contract and conversion of patents belonging to the company, grant of defendant's motion for a demurrer on the ground that plaintiff's claims were barred under Code Civ. Proc. section 426.30 because they should have been raised in the prior suit is reversed and remanded: 1) the allegations of the complaint included claims that were barred on their face by the compulsory cross-complaint statute because they were claims logically related to defendant's cross-complaint that should have been asserted in the prior suit; and 2) based upon certain allegations in the complaint and representations made by counsel both at the hearing on the demurrer and on appeal, plaintiff may be able to assert claims against the defendant that did not exist when it answered defendant's cross-complaint in the prior suit and would thus not be barred under section 426.30.   

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Appellate Information

Filed November 25, 2009

Judges

Opinion by Judge Duffy

Counsel
For Appellant:  Thomas A. Counts, T. Lee Kissman, Paul, Hastings, Janofly & Walker

For Appellee:   Hugh F. Lennon, Ann A. Nguyen, Robinson & Wood

Wollmer v. City of Berkeley, No. A122242

In an action seeking to overturn approvals by the City of Berkeley and Berkeley City Council of use permits and zoning variances for a mixed-use development project consisting of residential units and retail commercial space, denial of plaintiff's petition for a writ of mandate is affirmed as: 1) the City did not err in its calculation of the number of density bonus units; 2) plaintiff failed to establish that the City has not proceeded in the manner required by law, that the order or decision is not support by the findings, or that the findings are not supported by the evidence; 3) City of Berkeley Zoning Adjustments Board's findings regarding the benefits of the reduced setbacks to the abutting and confronting lots is supported by substantial evidence and are in conformance with the ordinance as there is no requirement that the reduced setbacks benefit the entire affected residential area; 4) plaintiff has not demonstrated that the City violated the Berkeley Code in its approval of the project by failing to require a cost certification; and 5) City did not violate CEQA.     

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Appellate Information

Filed November 25, 2009

Judges

Opinion by Judge Bruiniers

Counsel
For Appellant:    Stuart M. Flashman and Anna DeLeon

For Appellee:   Baird Holm LLP, David C. Levy

People v. Scott, No. C059703

Defendant's sentence as a three strikes offender after conviction for robbery and carjacking is affirmed as, by applying the definition of a "strike" as provided by the three strikes law, and by closely hewing to People v. Benson, in cases such as this, the trial court is not compelled to strike a strike, but must consider the closeness of the two strikes as an additional circumstance in conducting a Romero analysis.  

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Appellate Information

Filed November 24, 2009

Judges

Opinion by Judge Butz

Counsel
For Appellant:   Richard Power

For Appellee:   Edmund G. Brown, Jr., Attorney General, and Jeffrey D. Firestone, Deputy Attorney General

Presta v. Tepper, No. G040427

In plaintiff's suit against his former partner's widow for her refusal to sell the trusts' interests in two partnerships to plaintiff, judgment of the trial court is affirmed as the provision of the partnership agreement which required that upon the death of a partner, the partnership shall purchase his interest in the partnership, was triggered by the death of one of the two men.  

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Appellate Information

Filed November 24, 2009

Judges

Opinion by Judge Bedsworth

Counsel
For Appellant:   Law Office of William J. Kopeny & Associates and William J. Kopeny

For Appellee:   Donna Bader; Law Offices of Michael C. Hewitt and Michael C. Hewitt

Carol Gilbert, Inc. v. Haller, No. H033193

In a case involving a default judgment arising from plaintiff's attempt to join defendant as a Doe defendant, which served a summons on defendant that omitted the requisite statutory notice that he was served by the fictitious name, denial of defendant's motion to vacate the default is reversed where, even if the trial court's rationale could ever sustain a default judgment over a defendant's objection that service did not comply with statutory requirements, the record does not show partial or colorable compliance with the requirement on which defendant's objection was predicated, and thus a finding of substantial compliance could not be sustained.  

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Appellate Information

Filed November 24, 2009

Judges

Opinion by Judge Rushing

Counsel
For Appellant:     Carr & Ferrell, Stuart C. Clark, Christopher P. Grewe

For Appellee:   Janin, Morgan & Brenner, David B. Tillotson, John A. Lofton

Standard Microsystems Corp. v. Winbond Elec. Corp., No. H033266

In plaintiff's suit against a Taiwanese corporation and an Israeli corporation claiming that they misappropriated the design of a microchip used in manufacturing personal computers, trial court's entry of default judgment against defendants is reversed where: 1) undisputed facts plainly establish defendants' attorney's fault necessary to trigger a right to mandatory relief; 2) plaintiff's argument that relief was barred by Code of Civ. Proc. section 1008, which restricts motions for reconsideration and renewals of previously denied motions, is rejected; and 3) to the extent a literal application of section 1008 might conflict with the provisions of section 473(b), the latter must prevail.     

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Appellate Information

Filed November 24, 2009

Judges

Opinion by Judge Rushing

Counsel
For Appellant:  Reed Smith, Paul D. Fogel, Raymond A. Cardozo, Finnegan, Henderson, Farabow, Garrett & Dunner, Robert F. McCauley, Steven H. Morrissett, Elisabeth J. Barek, Wendy A. Herby

For Appellee:   Dechert, Chris Scott Graham

Fidelity Nat'l Title Ins., Co. v. Schroeder, No. F056339

In a case involving property on which plaintiff was about to file an abstract of judgment as a lien against, and which defendant then deeded to defendant-co-owner, a ruling refusing to set aside the transfer is affirmed in part, and reversed in part and remanded where: 1) the trial court was correct in concluding that the plaintiff was not entitled to relief under the Uniform Fraudulent Transfer Act; but 2) the court erred in concluding that plaintiff could not maintain a resulting trust cause of action, and it must determine whether transferee holds defendant's one-half interest in the property as a resulting trust for the benefit of defendant (in which case the lien would attach to the equitable interest).  

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Appellate Information

Filed November 24, 2009

Judges

Opinion by Judge Kane

Counsel
For Appellant:   Campagne, Campagne & Lerner, Justin T. Campagne and Wiley R. Driskill

For Appellee:    Felger & Associates, Warren P. Felger and Jennifer D. Reisz

City of Anaheim v. Sup. Ct., No. B216250

In proceedings arising from city's imposition of a "transient occupancy tax" against a number of online travel companies (OTC) in the collective amount of more than $21 million, city's petition for writ of mandate challenging the overruling of its demurrers claiming that the OTCs should abide by the "pay first" rule to challenge the tax is denied as: 1) the city cannot invoke article XIII, section 32 of the California Constitution in this case because that constitutional provision applies only to actions against the state or an officer of the state; and 2) there are no alternative legal grounds upon which the city can impose a "pay first" requirement upon the OTCs in this case. 

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Appellate Information

Filed November 24, 2009

Judges

Opinion by Judge Chavez

Counsel
For Appellant:     Kiesel, Boucher & Larson, LLP, Paul R. Kiesel and William L. Larson; Baron & Budd, P.C. and Patrick J. O'Connell; McKool Smith, Steven D. Wolens and Gary Cruciani; City of Anaheim, Cristina L. Talley, City Attorney, and Moses W. Johnson, Assistant City Attorney

For Appellee:   Skadden, Arps, Slate, Meagher & Flom LLP, Darrel H. Hieber, Stacy R. Horth-Neubert and Daniel M. Rygorsky, Jones Day, Elwood Lui, Brian D. Hershman and Erica L. Reilley McDermott Will & Emery LLP, Jeffrey A. Rossman, Elizabeth B. Herrington and Matthew Oster, Kelly Hart & Hallman LLP and Brian S. Stagner; K&L Gates LLP, William B. Grenner and Nathaniel Curral

Oddone v. Sup. Ct., No. B213784

In plaintiff's suit on behalf of her deceased husband against his former employer claiming that his brain tumor was caused by exposure to toxic chemicals while working for Technicolor, plaintiff's petition challenging an order sustaining defendant's demurrer to a claim that plaintiff was injured by exposure to toxic chemicals and vapors on her husband's clothing and person that he brought home is denied where Technicolor does not owe plaintiff a duty of due care, as plaintiff's attempts to state a cause of action fall short of the Rowland criteria. 

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Appellate Information

Filed November 24, 2009

Judges

Opinion by Judge Flier

Counsel
For Appellant:    Gonzalez & Robinson, Joseph D. Gonzalez and Keith A. Robinson

For Appellee:   Mitchell Silberberg & Knupp, Hayward J. Kaiser and Paul Guelpa

Millennium Rock Mortgage, Inc. v. T.D. Serv. Co., No. C059875

Trial court's order issuing a preliminary injunction barring defendant from conducting a new foreclosure sale, due to the auctioneer's mistake which was discovered after closing of the bid but prior to the issuance of a trustee's deed, is reversed as the auctioneer's error constituted an irregularity sufficient to void the sale.   

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Appellate Information

Filed November 24, 2009

Judges

Opinion by Judge Butz

Counsel
For Appellant:    The Dreyfuss Firm and Lawrence J. Dreyfuss

For Appellee:    Wagner Kirkman Blaine Klomparens & Youmans and Thomas B. Sheridan

Jameson v. Desta, No. D053089

In plaintiff's medical malpractice suit against defendant-doctor who treated plaintiff while he was incarcerated at a correctional facility, dismissal of the suit is reversed as the trial court erred in dismissing the action on the ground that plaintiff failed to appear telephonically at a case management conference and a at a subsequent hearing on an order to show cause, as the record clearly indicates that plaintiff notified the trial court on numerous occasions that prison personnel were not allowing him to communicate telephonically with the court, yet the record does not indicate that the trial court made any inquiry into plaintiff's contentions. 

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Filed November 23, 2009

Judges

Opinion by Judge Aaron

Counsel
For Appellant:    Barry S. Jameson, in pro. per

For Appellee:  Lewis Brisbois Bisgaard & Smith, James J. Wallace II, Lisa Willhelm Cooney and Allison A. Arabian

Hoffman St., LLC v. City of W. Hollywood, No. B210789

In plaintiffs-developers' suit against the city challenging its extension of an interim ordinance restricting development in areas zoned for multifamily residential uses raising various statutory and constitutional claims, judgment denying plaintiffs' petition for a writ of mandate and denying any relief on their complaint is reversed where: 1) trial court's denial of plaintiffs' petition for a writ of mandate as to the first count was improper as the city council failed to make findings required under Gov. Code section 65858(c) upon extending the interim ordinance and the extension therefore was contrary to law and invalid; 2) although it was improper for the trial court to deny plaintiffs' petition on their first count, plaintiffs have not shown prejudicial error in the denial of relief on their Permit Streamlining Act claim, and a CEQA violation claim is moot; and 3) trial court's entry of judgment on counts four through seven is reversed as plaintiffs were not afforded an opportunity to be heard on those counts which deprived them of their right to a fair hearing.     

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Filed November 23, 2009

Judges

Opinion by Judge Croskey

Counsel
For Appellant:   Jeffer, Mangels, Butler & Marmaro, Benjamin M. Reznik, Joel D. Deutsch, Paul A. Kroeger and Elizabeth Thompson

For Appellee:  Jenkins & Hogin, Michael Jenkins and Christi Hogin

Bader v. Anderson, No. H032372

In plaintiff's shareholder derivative suit against Apple, Inc., and its directors and officers challenging a cash performance bonus plan for non-directors that was approved by Apple shareholders after the dissemination of a proxy statement that plaintiff claimed was misleading, dismissal of plaintiff's complaint is affirmed where: 1)  plaintiff lacked standing to assert derivative claims on behalf of Apple because of her failure to make a presuit demand on the board and her failure to allege that the making of such a demand would have been futile; and 2) the claims plaintiff purported to assert in the complaint as direct claims on behalf of herself and all similarly situated shareholders are not maintainable because the gravamen of those claims is corporate in nature and may therefore be asserted only by the corporation. 

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Filed November 23, 2009

Judges

Opinion by Judge Duffy

Counsel
For Appellant:   Jeffrey M. Forster

For Appellee:  Dean S. Kristy, Kevin P. Muck, Jennifer C. Bretan, Fenwick & West

People v. Freitas, No. C060280

Defendant's conviction for grand theft is affirmed but the probation order prohibiting defendant from "possessing stolen property" is modified to state as probation conditions that defendant "not knowingly possess property he knows is stolen" and "not knowingly own, possess or have custody or control of any firearms or ammunition." 

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Filed November 23, 2009

Judges

Opinion by Judge Sims

Counsel
For Appellant:    Kathleen Woods Novoa

For Appellee:  Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General

People v. Zielesch, No. C059872

Conviction of defendant for first degree murder of a CHP officer, conspiracy to commit murder of his wife's boyfriend, and other crimes is affirmed where: 1) defendant's claim that his murder conviction must be reversed because the shooting of the officer was not in furtherance of the conspiracy to kill his wife's boyfriend and "was both unforeseen and unforeseeable" fails as the jury's finding of both the conspiracy and murder is supported by substantial evidence; and 2) defendant's claim that the entire judgment must be reversed because he was denied his right to a fair trial when the judge allowed courtroom spectators to wear buttons displaying a color photograph of the officer for six days at the start of the trial are rejected also fails, as the wearing of the buttons presented no probability of deleterious effects on defendant's right to a fair trial. 

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Filed November 23, 2009

Judges

Opinion by Judge Scotland

Counsel
For Appellant:    Stephen Gilbert

For Appellee:  Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman, Supervising Deputy Attorney General, and Clara M. Levers, Deputy Attorney General

People v. Sanchez, No. E046099

Defendant's sentence for second degree robbery and the substantive offense of gang participation is affirmed, but modified to bring the judgment into compliance as Penal Code section 654 precludes multiple punishment for both: 1) gang participation, one element of which requires that the defendant have willfully promoted, furthered, or assisted in any felonious criminal conduct by members of the gang; and 2) the underlying felony that is used to satisfy this element of gang participation. 

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Filed November 23, 2009

Judges

Opinion by Judge Richli

Counsel
For Appellant:   Edward J. Haggerty

For Appellee:  Edmund G. Brown Jr., Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Ronald Jakob and Jennifer A. Jadovitz, Deputy Attorneys General

Howell v. Hamilton Meats & Provisions, Inc., No. D053620

In an action arising from injuries plaintiff sustained in a vehicle accident caused by the negligent driving of defendant's employee, grant of defendant's motion to reduce by $130,286.90 a jury's special verdict award for plaintiff's past injury-related medical related expenses to $59,691.73 is reversed and remanded where in a personal injury case in which the plaintiff has private health care insurance, the negotiated rate differential is a benefit within the meaning of the collateral source rule, and thus the plaintiff may recover the amount of the differential as part her recovery of economic damages for the past medical expenses she incurred for care and treatment of her injuries.    

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Filed November 23, 2009

Judges

Opinion by Judge Nares

Counsel
For Appellant:   LaFave & Rice, John J. Rice; Basile Law Firm, J. Jude Basile; Law Offices of J. Michael Vallee and J. Michael Vallee

For Appellee:  Tyson & Mendes and Robert F. Tyson

People v. Johnson, No. S166894

Court of appeal's dismissal of defendant's appeal on the ground that a certificate of probable cause was required is affirmed as, whether the appeal seeks a ruling by the appellate court that the guilty plea was invalid, or merely seeks an order for further proceedings aimed at obtaining a ruling by the trial court that the plea was invalid, the primary purpose of section 1237.5 is met by requiring a certificate of probable cause for an appeal whose purpose is, ultimately, to invalidate a plea of guilty or no contest as in the present case.   

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Appellate Information
Appeal from Santa Clara County Super. Ct. No. CC619063

Filed November 23, 2009

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

Opinion by George, C.J.

Counsel
For Appellant:  Vicki I. Firstman

For Appellee:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General,  Laurence K. Sullivan and René A. Chacón, Deputy Attorneys General

People v. Reynolds, No. E047192

Trial courts denial of defendant's petition for unconditional release after he had been recommitted as an SVP is affirmed where: 1) the trial court did not abuse its discretion in dismissing defendant's petition where defendant did not oppose the dismissal motion and conceded there were no changed circumstances at the hearing; and 2) trial counsel provided effective assistance of counsel in not opposing motion to dismiss where there were no circumstances to support a conclusion defendant's condition had so changed he would not be a danger to others. 

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Appellate Information

Filed November 20, 2009

Judges

Opinion by Judge Ramirez

Counsel
For Appellant:   Rudy Kraft

For Appellee:   Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Kristen Kinnaird Chenelia, Deputy Attorneys General

People v. Ochoa, No. E045756

Defendant's conviction for carjacking, attempted robbery, being a felon in possession of a firearm, and other offenses is affirmed in part and reversed in part where: 1) the true findings on the gang enhancements are reversed as they were not supported by substantial evidence; 2) the prior prison terms must be stricken and the People are barred from seeking to try them upon remand; and 3) the record is sufficiently clear to order the award of custody credits as requested by defendant.     

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Appellate Information

Filed November 20, 2009

Judges

Opinion by Judge Miller

Counsel
For Appellant:   Brett Harding Duxbury

For Appellee:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf, Kristen Chenelia and Vincent La Pietra, Deputy Attorneys General

Nelson v. Exxon Mobil Corp., No. C059615

In plaintiff-trust's suit against defendant-Exxon claiming contamination of its water supply and other allegations, judgment of the trial court is affirmed in part and reversed in part where: 1) trial court's order substituting Cook Endeavors for the Trust as plaintiff in this action is affirmed; and 2) peremptory writ of mandate is issued directing the superior court to vacate its order granting Exxon's motion for summary adjudication on plaintiff's punitive damages claim.     

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Appellate Information

Filed November 20, 2009

Judges

Opinion by Judge Cantil-Sakauye

Counsel
For Appellant:   Baron & Budd, Scott Summy, Celeste A. Evangelisti, John L. Yates, Carla M. Burke; Stevens, O'Connell & Jacobs, Charles J. Stevens, David A. Cheit, Bradley A. Benbrook; Sher & Leff, Victor M. Sher, Richard M. Franco

For Appellee:  Sheppard, Mullin, Richter & Hampton, Jeffrey J. Parker, Whitney Jones Roy, Karin Dougan Vogel; Morgan Lewis & Bockius, David L. Schrader

Gomez v. Sup. Ct., No. C060710

Rejection of plaintiffs' petition challenging a county trial court's procedures as unconstitutional is affirmed where the summary denial of a prison inmate's ex parte application for the issuance of a writ of habeas corpus or a writ of mandate is a subordinate judicial duty that a commissioner may perform pursuant to section 259, subdivision (a) of the Code of Civil Procedure, without violating the Constitution, because it is not the "trial" of a "cause." 

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Appellate Information

Filed November 20, 2009

Judges

Opinion by Judge Scotland

Counsel
For Appellant:   Jon A. Nakanishi

For Appellee:   Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Senior Assistant Attorney General, Jessica N. Blonien, Supervising Deputy Attorney General, Heather M. Heckler and Christopher J. Rench, Deputy Attorneys General,

People v. Bell, No. G041051

Defendant's conviction for evading a police officer while driving recklessly and kidnapping is affirmed for the most part but reversed and remanded with respect to the kidnapping conviction as the court erred by failing to instruct the jury on a defendant's incidental movement of an alleged kidnapping victim.     

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Appellate Information

Filed November 20, 2009

Judges

Opinion by Judge Ikola

Counsel
For Appellant:   John L. Dodd,

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

In re Marriage of Kacik, No. G041274

Trial court's order modifying support, where the child support order ended in August 2006 and no modification request was brought until February 2008, is reversed as: 1) it cannot be sustained on the basis of Family Code section 4326 and 2) where section 4326 was the sole basis for the modification, the order cannot be sustained at all.     

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Appellate Information

Filed November 19, 2009

Judges

Opinion by Judge Sills

Counsel
For Appellant:    Brandon & Yarc and Lisa E. Brandon

For Appellee:  N/A

Hoffman v. Smithwoods RV Park, LLC, No. H033464

In plaintiff's suit against the defendant-Mobile Park for refusing to permit the installation of a new mobile home in its mobile home park to replace an older one that plaintiff had inherited, trial court's dismissal of plaintiff's suit is affirmed where: 1) the complaint fails to state a cause of action for statutory violation; 2) the complaint fails to state a tort cause of action for interference with contract; 3) the complaint fails to state a contract cause of action; and 4) the trial court did not abuse its discretion in denying leave to amend.   

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Appellate Information

Filed November 19, 2009

Judges

Opinion by Judge MacAdams

Counsel
For Appellant:    Greene, Chauvel, Descalso, & Minoletti, Paul G. Minoletti, Susan J. Bayerd

For Appellee: Law Office of Anthony C. Rodriguez, Anthony C. Rodriguez

Kelly v. CB&I Constructors, Inc., No. B205735

In plaintiff's suit against the defendant for sparking a brush fire that caused a significant damage to his ranch, judgment of the trial court is affirmed in part and reversed in part where: 1) defendant forfeited any error in the jury's verdict form; 2) jury's award of restoration damages in excess of the property's value was supported by substantial evidence and was not excessive as a matter of law; 3) the undisputed evidence established that plaintiff did not reside on the property at the time of the trespass, and his storage of personal property there was not the type of "occupancy" that would justify his recovery of annoyance and discomfort damages; 4) tree damage caused by a negligently spread fire is wrongful injury to trees caused by a trespass subject to mandatory doubling pursuant to Civil Code section 3346, notwithstanding the general provision governing fire damage in Health and Safety Code section 13007; and 5) substantial evidence supported trial court's finding that plaintiff intended to use the property for raising livestock, entitling him to an award of attorney's fees under Code of Civ. Proc. section 1021.9. 

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Appellate Information

Filed November 19, 2009

Judges

Opinion by Judge Mosk

Counsel
For Appellant:    Horvitz & Levy, Lisa J. Perrochet, Robert H. Wright; Lyddan Law Group and Jeffrey D. Lyddan

For Appellee: Law Offices of Douglas G. Gray, Douglas G. Gray; Cotkin & Collins, Robert G. Wilson and Terry L. Kesinger

Dowell v. Pacesetter, Inc., No. B201439

In plaintiffs' suit against the defendant to enjoin it from enforcing noncompete and nonsolicitation clauses in employment agreements used in California, trial court's ruling that the clauses were facially void under Business and Professions Code section 16600 and that their use violated California's Unfair Competition Law and that defendant's unclean hands defense and its cross-complaint for unfair competition failed as a matter of law is affirmed where: 1) the trial court properly determined that the clauses were void as a matter of law, that no defense applied and that the cross-complaint failed to state a cause of action; and 2) trial court did not abuse its discretion in denying a permanent injunction and costs   

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Appellate Information

Filed November 19, 2009

Judges

Opinion by Judge Todd

Counsel
For Appellant:  Feldman Gale, James A. Gale and Todd M. Malynn

For Appellee:  Steptoe & Johnson, Mark A. Neubauer, Rebecca Edelson and Carla A. Veltman

Davis v. Ford Motor Credit Co. , No. B204047

In plaintiff's action against the Ford Motor Credit Company (Ford) claiming that Ford's billing practices under a retail installment sales contract in charging late fees is prohibited by the Rees-Levering Motor Vehicle Sales and Finance Act, and actionable under Unfair Competition Law and the Consumers Legal Remedies Act, dismissal of the suit is affirmed where: 1) Ford's conduct of charging successive late fees for successive late payments does not violate Civil Code section 2982(k)'s prohibition on charging more than one late fee per delinquent installment; 2) plaintiff cannot allege Ford's billing practice is an unfair business practice within the meaning of UCL because the alleged injury is one plaintiff reasonably could have avoided; and 3) although Ford was the prevailing party, it cannot recover its attorney's fees pursuant to the Rees-Levering's reciprocal attorney's fees provision because the alleged Rees-Levering violation was merely a predicate to the UCL claims, and a prevailing defendant cannot recover attorney's fees under the UCL.   

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Appellate Information

Filed November 19, 2009

Judges

Opinion by Judge Klein

Counsel
For Appellant:  Levy, Ram & Olson, Arthur D. Levy, Erica L. Craven; The Harris Law Firm, Aurora D. Harris

For Appellee:  Severson & Werson, Jan T. Chilton, Mark Joseph Kenney, Regina J. McClendon and Joshua E. Whitehair

Barboza v. West Coast Digital GSM, Inc., No. B215454

In a class action lawsuit brought by former employees alleging unlawful wage deductions, failure to pay overtime and other employment violations, class counsel's obligations to the class do not end with the entry of judgment and his obligations continue until all class issues are resolved, which may include enforcement of the judgment.   

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Appellate Information

Filed November 19, 2009

Judges

Opinion by Judge Willhite

Counsel
For Appellant:    Barritt Smith, Douglas A. Barritt and Perry G. Smith

For Appellee: N/A

Galleria Plus, Inc. v. Hanmi Bank, No. B213099

Trial court's order directing plaintiff to pay monetary sanctions to defendant-bank is reversed as plaintiff failed to provide the required notice of its motion for sanctions as required under Code of Civ. Proc. section 128.7(c)(1). 

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Appellate Information

Filed November 19, 2009

Judges

Opinion by Judge Epstein

Counsel
For Appellant:    David D. Kim & Associates, David D. Kim, Matthew E. Karanian, Mark M. Higuchi, and Rosa Kwong

For Appellee: N/A

Go v. Pac. Health Serv., Inc., No. B211054

In plaintiff's suit seeking involuntary dissolution of defendant-company, of which she had been a director and shareholder, trial court's decree providing for the winding up and dissolution of the corporation unless defendants made payment to the plaintiff for her shares, in the specified amount, within the specified time, is affirmed with respect to the alternative decree issued by the trial court as it followed the statutory requirements set forth in the plain language of section 2000.     

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Appellate Information

Filed November 19, 2009

Judges

Opinion by Judge Willhite

Counsel
For Appellant:   Law Office of Stewart J. Neuville and Stewart J. Neuville

For Appellee:  Quintana Law Group, Andres F. Quintana and John M. Houkom

Johnson v. Honeywell Int'l Inc., No. B210799

In plaintiff's suit against the defendants arising from injuries he sustained as an HVAC technician while working on defendants' air conditioning equipment, trial court's judgment in favor of defendants is reversed as the sophisticated user defense applies to the negligence cause of action, but not to the strict liability cause of action. 

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Appellate Information

Filed November 19, 2009

Judges

Opinion by Judge Armstrong

Counsel
For Appellant:  Metzger Law Group, Raphael Metzger and Gregory A. Coolidge

For Appellee:   Horvitz & Levy, David M. Axelrad, Mary-Christine Sungaila, Dean A. Bochner; Atkins & Evans, Irwin S. Evans, Cynthia L. Sands; Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor, Kevin C. Mayer; Prindle, Decker & Amaro, James G. Murray

In re Ronje, No. G041373

Defendant's petition for a writ of habeas corpus is granted as the assessment protocols used to evaluate defendant leading to the SVPA commitment petition is invalid as an underground regulation, and as such, the appropriate remedy is to order new evaluations of defendant using a valid assessment protocol and to conduct another probable cause hearing under section 6602(a) based on the new evaluations.     

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Appellate Information

Filed November 19, 2009

Judges

Opinion by Judge Fybel

Counsel
For Appellant:   Edward C. Ronje, in pro. per.; and Rudy Kraft

For Appellee:  Tony Rackauckas, District Attorney, and Mike Flory, Deputy District Attorney

Sanchez v. State of California, No. E046254

In a suit brought by a Unified School District, minor school children, their parents, and the Board of Education against the state over construction costs for school facilities, trial court's denial of plaintiffs' petition for writ of mandate is affirmed where: 1) the State Allocation Board (SAB) and the trial court properly construed the applicable statute and regulation; 2) substantial evidence supports the finding that the certificates of participation (COP) proceeds were not encumbered; 3) there was no abuse of discretion in SAB's conclusion that COP proceeds are the type of funds that should be included when calculating a school district's ability to make a matching contribution; 4) the SAB did not act in excess of its authority when enacting the Regulation, and by deeming money in the district's general fund to be available; 5) substantial evidence supports a finging that the district possessed the $89 million in available COP proceeds; 6) the Regulation and the Statute are not facially unconstitutional, nor unconstitutional as applied; and 7) plaintiffs' argument, that the trial court erred by not making requested findings of fact and sustaining the State's evidentiary objections while overruling plaintiffs' evidentiary objections, is rejected.     

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Appellate Information

Filed November 19, 2009

Judges

Opinion by Judge Miller

Counsel
For Appellant:    Parker & Covert, Spencer E. Covert, Jonathan J. Mott and Michael T. Travis

For Appellee:  Edmund G. Brown, Jr., Attorney General, Douglas J. Woods, Assistant Attorney General, Jonathan K. Renner and Thomas M. Patton, Deputy Attorneys General

People v. Rios, No. B208573

Conviction of defendant for carjacking and use of a firearm is affirmed as the controlling constitutional rule in Seibert is that set forth in Associate Justice M. Kennedy's concurring opinion as it does not abrogate the implied waiver rule first articulated by the Supreme Court in Butler, and thus the implied waiver rule, which applies to this case, is not rescinded by Seibert.  As a result, substantial evidence supports the trial court's finding that defendant's admissions were admissible. 

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Appellate Information

Filed November 19, 2009

Judges

Opinion by Judge Turner

Counsel
For Appellant:   Jeffrey Lewis,

For Appellee:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and David A. Wildman, Deputy Attorneys General

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

In plaintiffs' products liability suit against defendants for injuries caused by exposure to asbestos-containing products aboard US Navy vessels, trial court's judgment in favor of the plaintiffs is reversed in where: 1) plaintiffs have not shown that defendant manufactured, supplied, or distributed the products which caused his exposure to asbestos; and 2) 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.     

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Filed November 17, 2009

Judges

Opinion by Judge Kitching

Counsel
For Appellant: Simon, Eddins & Greenstone, Brian P. Barrow

For Appellee:  Gordon & Rees, James G. Scadden, Don Willenburg; Munger, Tolles & Olson, Mark H. Epstein, Paul J. Watford and Julie D. Cantor

Nutragenetics, LLC v. Sup. Ct., No. B217853

In plaintiff's suit against the defendants alleging he was defrauded into investing in their company, defendants' petition for writ of mandate is denied as trial court properly found plaintiff's peremptory challenge to the judge to be timely where: 1) the second lawsuit involves a different defendant and different causes of action asserted against that defendant; and 2) the second lawsuit does not arise from conduct in, or involve enforcement or modification of an order in, the first lawsuit.     

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Filed November 17, 2009

Judges

Opinion by Judge Mohr

Counsel
For Appellant:    Stearns Kim & Stearns, Lawrence B. Bemis, Ryan E. Stearns and Lauren B. Browne

For Appellee:  Gallo & Associates, Ray E. Gallo and Sharon S. Laveson

Epic Communications, Inc. v. Richwave Tech., Inc., No. H032378

In an action by a Taiwanese corporation and its California subsidiary seeking damages for misappropriation of intellectual property involving a Design Services Agreement of a silicon-germanium power amplifier for use in wireless networking devices, trial court's order quashing service of summons is reversed where: 1) a refusal by California courts to exercise jurisdiction cannot be justified by the mere fact that a claim arising from California contacts is prosecuted by a nonresident; and 2) subjecting the defendant to local jurisdiction comports with fair play and substantial justice as, here the two Taiwanese defendants engaged in conduct in California, and caused effects in California, that made it readily foreseeable that they would be haled into court here in the event of a dispute of the present type.     

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Filed November 17, 2009

Judges

Opinion by Judge Rushing

Counsel
For Appellant: Greenberg Traurig, J. James Li, Cindy Hamilton, David Perez

For Appellee: Wang, Hartman, Gibbs & Cauley, Richard F. Cauley, Peter O. Huang

1680 Prop. Trust v. Newman Trust, No. B207613

In plaintiffs' suit against the defendant-Newman Trust for breach of fiduciary duty based on fraud, summary judgment for defendant is affirmed as the Code of Civ. Proc. section 366.2 period of limitations is applicable to fraud claims based on statements of the decedent on behalf of a trust of which he was trustor and trustee, even though the action is against the successor trustee.     

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Filed November 17, 2009

Judges

Opinion by Judge Mosk

Counsel
For Appellant: Law Offices of Richard A. Love, Richard A. Love, and Beth A. Shenfeld

For Appellee:  The Vittal Law Firm and J. Anthony Vittal

People v. Archer, No. D052978

Trial court's order placing defendant on three-years' probation for cultivation of marijuana and simple possession is affirmed in part and reversed in part where: 1) the trial court's error in including the numerical limits set forth in section 11362.77(a) of the Medical Marijuana Program Act (MMPA) when instructing the jury regarding the amount of medical marijuana that defendant could lawfully possess and/or cultivate unconstitutionally amended the Compassionate Use Act passed by the voters, but the error was harmless as defendant admitted he was growing marijuana for at least four other people and he proffered no evidence to show that he was the primary caregiver for any of them; but 2) defendant's conviction for simple possession is reversed as under section 11357(a), the instructional error capping the amount of marijuana defendant could lawfully possess was prejudicial because defendant himself was a qualified patient in April 2006, and as such, he was entitled to possess an amount of marijuana reasonably related to his own medical needs.  

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Filed November 17, 2009

Judges

Opinion by Judge Benke

Counsel
For Appellant:   Russell S. Babcock

For Appellee:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General,  Gary W. Schons, Assistant Attorney General, Steve Oetting and Meredith A. Strong, Deputy Attorney General. 

People v. Phu, No. C060511.html

Trial court's order requiring defendant to pay $24,752.35 in restitution to the Municipal Utility District (MUD) after pleading no contest to conspiracy to sell marijuana is affirmed as, under the circumstances, it was reasonable to use the earlier date of when the defendant subscribed for utilities rather than the date when the MUD first determined that power was being illegally diverted into the house.    

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Filed November 17, 2009

Judges

Opinion by Judge Nicholson

Counsel
For Appellant:    J. Edward Jones

For Appellee:  Edmund G. Brown, Jr., Attorney General,  Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General

Langhorne v. Sup. Ct.

Petitions for writ of mandate challenging trial court's denial of petitioners' motions to dismiss recommitment petitions, brought after the trial court granted People's motions to convert petitioners' involuntary two-year commitment under the Sexually Violent Predator Act (SVPA) to an indeterminate term under the 2006 amendment to the SVPA, are denied where: 1) substantial evidence supports the trial court's finding that the People made a good faith mistake of law when they failed to timely file the recommitment petitions before the expirations of petitioners' most recent two-year commitment periods; 2) the good-faith exception of section 6601(a)(2) precludes dismissal of the untimely recommitment petitions because petitioners' unlawful custody was due to People's mistake of law; and 3) therefore, the trial court properly denied petitioners' motions to dismiss and the court has jurisdiction to proceed on the petitions.      

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Appellate Information

Filed November 16, 2009

Judges

Opinion by Judge Bamattre-Manoukian

Counsel
For Appellant:    Mary J. Greenwood, Public Defender, Michael S. Ogul, Deputy Public Defender, Matthew M. Wilson, Deputy Public Defender

For Appellee:  Edmund G. Brown, Jr., Attorney General, Bridget Billeter, Deputy Attorney General

Mangano v. Verity, Inc., No. H033286

In plaintiff's suit against his former employer for retaliatory termination, judgment pursuant to a jury's verdict in favor of defendant and denial of plaintiff's motion for a new trial is affirmed where: 1) the trial court did not err in excluding evidence of plaintiff's alleged disability as he failed to make known to the court the purpose and relevance of the evidence to any other issue; and 2) the trial court did not abuse its discretion in concluding that a proposed settlement agreement fell within Evidence Code section 1152's broad scope. 

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Appellate Information

Filed November 16, 2009

Judges

Opinion by Judge Mihara

Counsel
For Appellant:    Stephen R. Jaffe

For Appellee:  Gregory L. Doll, Hunter R. Eley, Doll Amir & Eley LLP

Gelson's Markets, Inc. v. Workers' Comp. Appeals Bd., No. B209336

Workers' Compensation Appeals Board's decision and award finding the employer liable for discrimination against an industrially injured employee because the employer did not accept a physician's release to allow the employee to return to work is annulled as the employee did not establish a prima facie showing of employer's liability for discrimination in violation of Labor Code section 132a, and as such, the burden did not shift to the employer to establish an affirmative defense.  

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Filed November 13, 2009

Judges

Opinion by Judge Kitching

Counsel

For Appellant:  Paul, Hastings, Janofsky & Walker, Paul W. Crane, Jr., Molly A. Harcos; Law Offices of Daniel P. Goggins and Daniel P. Goggins

For Appellee:  Goldschmid, Silver & Spindel and Lawrence Silver

Kim Seng Co. v. Great Am. Ins. Co. of New York, No. B208699

In a dispute over whether plaintiff's insurer had a duty to defend and indemnify plaintiff in a trademark infringement action under an "advertising injury" policy, summary judgment for insurance company is affirmed as the prior publication exclusion in the policy bars coverage for trademark infringement in this case. 

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Filed November 13, 2009

Judges

Opinion by Judge Mosk

Counsel

For Appellant:  Law Offices of Mark L. Sutton, Mark L. Sutton

For Appellee:  Musick, Peeler & Garrett, Cheryl A. Orr, David A. Tartaglio; Bates & Carey, Richard H. Nicolaides, Jr., Jonathan T. Viner, Daniel I. Graham, Jr., and Agelo L. Reppas

People v. Pakes, No. H032734

Defendant's sentence to an indeterminate term of 25 years to life to run consecutive to a determinate term of four years for child endangerment, evading a police officer, and hit and run causing property damage, is reversed and remanded for resentencing where the  trial court's determination that defendant maintained multiple criminal objectives with regard to his conviction for evading a police officer was not supported by sufficient evidence. Also, on resentencing, the court may reconsider its ruling on a one-year prior enhancement pursuant to Penal Code section 1385. 

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Filed November 13, 2009

Judges

Opinion by Judge Mihara

Counsel
For Appellant:    Dallas Sacher

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, Jeffrey M. Laurence, Deputy Attorney General. 

People v. Concha, No. S163811

Conviction of defendants for first degree murder of their accomplice, who was killed by the intended victim of an apparent attempted robbery, is reversed and remanded where: 1) a defendant may be convicted of first degree murder under the provocative act doctrine if the defendant personally acted willfully, and with premeditation during the attempted murder; but 2) the jury instructions on first degree murder failed to require the jury to find whether each defendant personally acted willfully, deliberately, and with premeditation during the course of the attempted murder of the victim. 

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Appellate Information
Appeal from Alameda County Super. Ct. No. C148565

Filed November12, 2009

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

Opinion by Corrigan, J.

Counsel
For Appellant:   Maria Morrison, Diana M. Teran

For Appellee:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., Scott A. Taryle and Stephanie A. Miyoshi, Deputy Attorneys General

State of Arizona v. Yuen, No. B210459

Grant of defendant's motion to vacate a sister state judgment and denial of Arizona's motion for reconsideration, arising from defendant's incorporation of a company in Arizona at her husband's request, is affirmed as the trial court did not abuse its discretion in finding that: 1) defendant had no notice of the Arizona administrative proceedings; 2) defendant did not retain the lawyer as her attorney; and 3) defendant never signed a written waiver of the lawyer's conflict of interest in representing clients with opposing interests. 

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Filed November 12, 2009

Judges

Opinion by Judge Flier

Counsel

For Appellant:   The Guerrini Law Firm, John D. Guerrini and David Brand

For Appellee:   Law Offices of J. Steven Kennedy and J. Steven Kennedy

Cassel v. Sup. Ct., No. B215215

In plaintiff's legal malpractice suit, his request for writ of relief from two orders excluding evidence in favor of his former attorneys is granted and the orders vacated as the communications are a client and his attorney, outside the presence of, and not otherwise communicated to, any opposing party or the mediator, and reveal nothing said or done in the mediation discussion. 

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Filed November13, 2009

Judges

Opinion by Judge Jackson

Counsel

For Appellant:   Makarem & Associates, Ronald W. Makarem, Peter M. Kunstler and Jamie R. Greene

For Appellee:   Haight Brown & Bonesteel, Peter Q. Ezzell, Nancy E. Lucas and Stephen M. Caine

City of Los Angeles v. Workers' Comp. Appeals Bd., No. B211331

City's petition for review of an order of the Workers' Compensation Appeals Board (WCAB) awarding the full $125,000 death benefit to the California Department of Industrial Relations, Death Without Dependents Unit (DWD Unit), notwithstanding the City's payment of $104,208 in death benefits to the deceased worker's estate pursuant to Labor Code section 4702(a)(6)(B) is annulled because the escheat of a death benefit to the state after partial payment to the estate, in effect the award of two death benefits for a single death, is inconsistent with the governing statutes and the legislative policy they implement.  

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Filed November 12, 2009

Judges

Opinion by Judge Perluss

Counsel

For Appellant:   Gurvitz Marlowe & Miller and Diane E. Phillips

For Appellee:   N/A

Cabral v. Ralphs Grocery Co., No. E044098

In plaintiff's wrongful death suit against the defendant, arising from an accident where a pickup truck driven by plaintiff's deceased husband collided with a tractor-trailer driven by defendant's employee, a jury verdict for plaintiff is reversed and remanded where: 1) as a matter of law, the employee owed no duty to the decedent to avoid stopping in the emergency parking area; 2) the employee's negligence did not proximately cause the accident, and notwithstanding the conclusion that the record does not contain substantial evidence that the employee's negligent act or omission caused plaintiff's injuries, plaintiff cannot recover against defendant based on the facts in the record as a matter of public policy; and 3) the trial court erred in admitting the testimony of plaintiff's expert on causation and as such, the evidence is insufficient to support the verdict.     

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Filed November 10, 2009

Judges

Opinion by Judge Hollenhorst

Counsel

For Appellant:   Bell, Orrock & Watase, Stanley Orrock; Greines, Martin, Stein & Richland, Timothy T. Coates and Lillie Hsu

For Appellee:   Shernoff Bidart Darras Escheverria, Frank N. Darras, Lissa A. Martinez; Donahue and Horrow and Michael B. Horrow

Princess Cruise Lines, Ltd. v. Sup. Ct., No. B212761

In plaintiffs' suit against the defendant-Cruise Line  brought under the California's Unfair Competition Law (UCL), the False Advertising Law (FAL), and the Consumer Legal Remedies Act (CLRA), over charges added to the price of shore excursions taken during a cruise, trial court's order denying defendant's motion for summary judgment is vacated and remanded where: 1) trial court erred in concluding that the CLRA cause of action was barred by Civil Code 1781(c); 2) a plaintiff asserting UCL, FAL and CLRA must show that he or she relied on the defendant's misrepresentations; 3) plaintiffs did not rely on any representations made by defendants; 4) there are no material questions of fact about the cost of excursions. 

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Filed November 10, 2009

Judges

Opinion by Judge Flier

Counsel

For Appellant:   Kaye, Rose & Partners, Bradley M. Rose, Carolyn J. Kaye, Aksana Moshaiv and André M. Picciurro

For Appellee:   Bailey Law Group, Mohammed K. Ghods and William A. Stahr

Denial of plaintiff's petition for writ of mandate seeking to vacate the approval of Measure A, which imposes a retail sales and use tax to fund transportation projects in the county, is affirmed as a prior CEQA environmental review was not required as Measure A falls within the funding mechanism exclusion of the CEQA Guidelines section 15378(b)(4) because it does not constitute a binding commitment to construct the projects set forth in the investment plan.     

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Filed November 10, 2009

Judges

Opinion by Judge Perren

Counsel

For Appellant:  Eugene S. Wilson

For Appellee:  Dennis Marshall, County Counsel, Kevin E. Ready, Sr., Senior Deputy County Counsel; Remy, Thomas, Moose and Manley, Whitman F. Manley, Tiffany K. Wright and Christopher J. Butcher

Bus Riders Union v. Los Angeles County Metro. Transp. Agency, No. B212145

Denial of plaintiffs' petition for writ of mandate in their challenge of the use by defendant-Metropolitan Transportation Agency (MTA) of a statutory rate-setting exemption from the California Environmental Quality Act (CEQA) is affirmed where: 1) the administrative record contains substantial evidence that MTA's fare increase was enacted for one or more permissible purposes under Pub. Resources Code section 21080(b)(8); and 2) the MTA's findings satisfy the specificity requirement in that provision.     

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Filed November 10, 2009

Judges

Opinion by Judge Boren

Counsel

For Appellant:  Natural Resources Defense Council, David Pettit, Tim Grabiel

For Appellee:  Jones Day, Elwood Lui, Brian D. Hershman, Brian M. Hoffstadt, Erica L. Reilley

Jackson v. Yarbray, No. B204321

In plaintiffs' malicious prosecution action against defendants involving an ealier case that arose from unsuccessful efforts to merge with businesses owned by defendants, trial court's finding that defendants are liable for the malicious prosecution of a civil action and award of $700,000 in general damages for emotional distress and $2.41 million in punitive damages to plaintiffs is affirmed in part and reversed in part where: 1) the judgment as to defendant's counsel who had represented them for part of the time the action was pending is affirmed in its entirety as the trial court did not err in concluding plaintiffs failed to meet their burden of proving counsel had acted with malice; 2) portion of the judgment awarding compensatory damages is reversed in part and remanded to determine the amount of attorney fees and costs properly recoverable as special damages by the plaintiffs as the trial court erred in precluding any recovery by the plaintiffs for attorney fees incurred in defending the underlying action; and 3) judgment of the trial court is affirmed in all other respects.     

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Filed November 10, 2009

Judges

Opinion by Judge Perluss

Counsel

For Appellant:  Law Offices of Yvonne M. Renfrew and Yvonne M. Renfrew

For Appellee:  Robert T. Yarbray, Lobb Cliff & Lester, Mark S. Lester, Robert J. Mitchell and Orlando J. Villalba, for Best Best & Krieger, LLP

In re Jennifer S., No. A122900

Juvenile court's order placing defendant on home probation for violation of County Code section 9.42.020, which makes it a misdemeanor for a person under age 21 to have a blood alcohol level of .01 percent or more while in a public place within the County, is affirmed and defendant's claim that the ordinance is preempted by state law rejected where: 1) the field of underage drinking is not fully occupied; 2) the ordinance was enacted to prohibit consumption; 3) the ordinance does not duplicate state law; and 4) defendant's argument that the potential adverse effects of the ordinance on transient citizens outweighs the possible benefits to the county is rejected. 

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Filed November 10, 2009

Judges

Opinion by Judge Simons

Counsel

For Appellant:  Surowitz & Bell and Bobby Bell

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

Kaye v. Bd. of Tr. of the San Diego County Pub. Law Library, No. D053644

In plaintiff's wrongful termination suit arising from his discharge as a law librarian for sending a scathing e-mail criticizing his superiors, summary judgment as to the state law causes of action in favor of defendants is affirmed where defendant could not establish that: 1) a violation of the state Constitution's free speech clause; 2) a violation of the CFCA's whistleblower protections, as his conduct was not protected under the CFCA; 3) a violation of Business and Professions Code section 6345; and 4) a violation of the Brown Act.    

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Filed November 10, 2009

Judges

Opinion by Judge McConnell

Counsel

For Appellant:  Michael Kaye

For Appellee:  Andrews Lagasse Branch & Bell LLP, Margaret C. Bell and Shauna L. Durrant

People v. Cohens, No. E045468

Defendant's conviction for willful infliction of corporal injury on a cohabitant and failure to register as a sex offender is affirmed where: 1) defendant's failure to object to jury instructions regarding the failure to register offense was not a waiver of right to appeal; 2) jury instructions were erroneous because the instructions did not require that the People prove that defendant actually knew he was required to register the address in particular; but 3) even if the instructions as to the actual knowledge requirements of the failure to register offense were erroneous, the error was harmless beyond a reasonable doubt.     

Read People v. Cohens, No. E045468 [HTML]

Read People v. Cohens, No. E045468 [PDF]

Filed November 9, 2009

Judges

Opinion by Judge Ramirez

Counsel

For Appellant:  Jean Ballantine

For Appellee:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton, Alana Cohen Butler, and Scott C. Taylor, Deputy Attorneys General

People v. Am. Surety Ins. Co., No. G040720

Judgment in favor of the People forfeiting bail after a motion to set aside the forfeiture was denied is reversed as the trial court lost jurisdiction to forfeit bail when the case was not called on the date set for arraignment by the jailer, and there was no jurisdiction on a later arraignment date set by the district attorney.     

Read People v. Am. Surety Ins. Co., No. G040720 [HTML]

Read People v. Am. Surety Ins. Co., No. G040720 [PDF]

Filed November 9, 2009

Judges

Opinion by Judge Bedsworth

Counsel

For Appellant:  Nunez & Bernstein and E. Alan Nunez

For Appellee:  Benjamin P. de Mayo, County Counsel and Leon J. Page, Deputy County Counsel

Louie v. BFS Retail & Commercial Operations, LLC, No. C059800

In plaintiff's suit against defendants for violations of California's Disabled Persons Act (DPA), alleging the countertops in defendant's business establishments were allegedly too high to allow wheelchair access, dismissal pursuant to defendant's demurrer is reversed where, because a Florida federal case was resolved by a consent decree expressly reserving any damage claims, res judicata does not bar this claim for damages. 

Read Louie v. BFS Retail & Commercial Operations, LLC, No. C059800 [HTML]

Read Louie v. BFS Retail & Commercial Operations, LLC, No. C059800 [PDF]

Filed November 9, 2009

Judges

Opinion by Judge Sims

Counsel

For Appellant:  Law Offices of Morse Mehrban, Morse Mehrban and Brian Keith Andrews

For Appellee:  Rutan & Tucker, Ernest W. Klatte, III and Chris M. Heikaus Weaver

People v. Hernandez, No. H031992

Conviction of defendant for premeditated attempted murder is reversed as, without more evidence of good cause for a court order barring defense counsel from discussing the contents of co-defendant's written declaration with the defendant, the order unjustifiably infringed on the defendant's constitutional right to the effective assistance of counsel, and as such, the defendant is entitled to reversal without making a showing of prejudice resulting from the error.  Remaining issues are considered and the decisions of the trial court affirmed only to the extent necessary to provide guidance in the event of retrial.     

Read People v. Hernandez, No. H031992 [HTML]

Read People v. Hernandez, No. H031992 [PDF]

Filed November 9, 2009

Judges

Opinion by Judge Elia

Counsel

For Appellant:  Marc J. Zilversmit

For Appellee:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Sr. Assistant Attorney General, Laurence K. Sullivan and Amy Haddix, Deputy Attorneys General

King v. Johnston, No. D054136

In plaintiff's suit against defendant alleging undue influence on the trustee to breach a trust of which plaintiff was a beneficiary, judgment in favor of defendant is reversed and remanded where: 1) the court erred in determining that plaintiff did not have standing to sue defendant for her role as a third-party participant in a trustee's breach; 2) the trial court erred in failing to consider and make the necessary findings as to whether plaintiff could recover from defendant under a theory that, after the trustee's death, defendant became a trustee de son tort, and thus had duties to the trust beneficiaries, which she breached; and 3) plaintiff may recover from defendant for defendant's breach of trust after the trustee's death. 

Read King v. Johnston, No. D054136 [HTML]

Read King v. Johnston, No. D054136 [PDF]

Filed November 9, 2009

Judges

Opinion by Judge Aaron

Counsel

For Appellant:  Glenn, Wright, Jacobs & Schell and Ralph E. Hughes

For Appellee:  Law Offices of William F. Roche and William F. Roche

Nader Auto. Group, LLC. v. New Motor Vehicle Bd., No. C059144

In plaintiffs' protest to their termination as franchised dealers of Volkswagen of America, Inc., and Audi of America, Inc., dismissal of the protest by the New Motor Vehicle Board (Board) is affirmed where: 1) Vehicle Code section 3050.2(b) is constitutional on its face and as applied; and 2) substantial evidence support the Board's findings of plaintiff's failure to comply with authorized discovery.   

Read Nader Auto. Group, LLC. v. New Motor Vehicle Bd., No. C059144 [HTML]

Read Nader Auto. Group, LLC. v. New Motor Vehicle Bd., No. C059144 [PDF]

Filed November 9, 2009

Judges

Opinion by Judge Robie

Counsel

For Appellant:  Law Offices of Michael T. Morrissey and Michael T. Morrissey

For Appellee:  Jeffer, Mangels, Butler & Marmaro, Allen Resnick, Neil C. Erickson and Amy Lerner Hill

In plaintiff's suit against defendants for using its employees to drill its water wells without a required license, trial court's judgment against plaintiff after sustaining defendants' demurrer is reversed where the trial court erred in concluding that Water Code section 13750.5 does not apply to public entities such as defendant.  

Read California Groundwater Ass'n v. Semitrophic Water Storage Dist., No. F056823 [HTML]

Read California Groundwater Ass'n v. Semitrophic Water Storage Dist., No. F056823 [PDF]

Filed November 9, 2009

Judges

Opinion by Judge Vartabedian

Counsel

For Appellant:  Lanahan & Reilley, Scott L. Steever and Keith T. Uland

For Appellee:  Law Offices of Young Wooldridge, Ernest Conant, Scott K. Kuney, Phillip Hall and Alan Doud

People v. Santiago, No. F056686

In a prosecution for possession of methamphetamine and resisting arrest, trial court's use of Judicial Counsel of California Criminal Jury Instructions CALCRIM No. 2550 when instructing the jury is upheld, as this standardized instruction does not improperly direct minority jurors to give way to majority jurors or improperly tell the jury that all criminal cases must be decided at some point. 

Read People v. Santiago, No. F056686 [HTML]

Read People v. Santiago, No. F056686 [PDF]

Filed November 9, 2009

Judges

Opinion by Judge Wiseman

Counsel

For Appellant:  Sylvia Koryn

For Appellee:  Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Wanda Hill Rouzan, Deputy Attorney General

Doe v. Roman Catholic Bishop of San Diego, No. B209557

In fifteen plaintiffs' statewide clergy sex abuse case against defendants, trial court's order sustaining defendants' demurrers without leave to amend is affirmed as childhood sexual molestation victims whose claims were time barred before January 1, 2003, had to sue during the ensuing one-year revival period regardless of whether they had yet discovered the link between the earlier abuse and their adult outset of psychological injuries from that abuse. 

Read Doe v. Roman Catholic Bishop of San Diego, No. B209557 [HTML]

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Filed November 6, 2009

Judges

Opinion by Judge Rubin

Counsel

For Appellant:  Zalkin & Zimmer, Irwin M. Zalkin and Devin M. Storey

For Appellee:  Hennigan, Bennett & Dorman and Lee W. Potts; Shea Stokes Roberts & Wagner, Maria C. Roberts, Shirley Gauvin, and Christina Yates

Evans v. Lasco Bathware, Inc., No. D053731

In plaintiffs' products liability suit against defendant for manufacturing shower pans that allegedly resulted in water damage, trial court's order denying class certification is affirmed as the trial court did not abuse its discretion when it found class certification inappropriate as there was substantial evidence from which the court could have concluded that the sole common issue did not predominate over individualized questions of damages, and there is substantial evidence from which the court could have concluded that the proposed plaintiffs did not adequately represent the interests of the class. 

Read Evans v. Lasco Bathware, Inc., No. D053731 [HTML]

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Filed November 6, 2009

Judges

Opinion by Judge MacDonald

Counsel

For Appellant:  Epsten Grinnell & Howell, Douglas W. Grinnell and Steven L. Banks

For Appellee:  Wilson, Elser, Moskowitz, Edelman & Dicker, Patrick M. Kelly, Martin K. Deniston and Daniel H. Lee, Horton, Oberrecht, Kirkpatrick & Martha, Luther W. Horton and Richard H. Martha

Joseph v. Johnson, No. A123270

In plaintiffs' suit against defendant for damages arising out of their sexual molestation by defendant's husband, trial court's judgment is affirmed in part and reversed in part where: 1) trial court properly sustained the demurrer with regard to plaintiffs' second and fifth causes of action for negligence; but 2) trial court erred in sustaining the demurrer to plaintiffs' third and sixth causes of action for intentional misconduct.     

Read Joseph v. Johnson, No. A123270 [HTML]

Read Joseph v. Johnson, No. A123270 [PDF]

Filed November 6, 2009

Judges

Opinion by Judge Pollak

Counsel

For Appellant:  Arnold I. Berschler

For Appellee:  Buresh, Kaplan, Jang & Feller, Lawrence A. Baker

People v. Lyons, No. B212253

Defender's appeal from judgment entered following his negotiated guilty plea to possessing methamphetamine and related offenses is dismissed as the notice of appeal was not timely filed and defendant's constructive filing claim under Benoit is rejected.     

Read People v. Lyons, No. B212253 [PDF]

Read People v. Lyons, No. B212253 [HTML]

Filed November 5, 2009

Judges

Opinion by Judge Yegan

Counsel

For Appellant:  Jonathan B. Steiner, Executive Director and Richard B. Lennon, Staff Attorney

For Appellee: Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, E. Carlos Dominguez, Deputy Attorney General

Gardner v. Schwarzenegger, No. A122920

Trial court's judgment enjoining Governor Schwarzenegger and other defendants from enforcing Senate Bill No. 1137 sections 1-12 that sought to amend the Substance Abuse and Crime Prevention Act of 2000 (hereafter Proposition 36) is affirmed where: 1) certain challenged sections of the Senate Bill 1137 allowing incarceration for drug-related probation violations, when that sanction would be prohibited by Proposition 36, cannot be deemed to be consistent with the purposes of the Proposition; and 2) Senate Bill 1137's provision for a popular vote, if any part of Senate Bill 1137 is invalidated, is itself invalid.     

Read Gardner v. Schwarzenegger, No. A122920 [PDF]

Read Gardner v. Schwarzenegger, No. A122920 [HTML]

Filed November 5, 2009

Judges

Opinion by Judge Marchiano

Counsel

For Appellant:  Edmund G. Brown Jr., Attorney General, Jonnathan K. Renner, Senior Assistant Attorney General, Douglas J. Woods and Kathleen A. Lynch, Deputy Attorneys General

For Appellee:  Altshuler Berzon, Jonathan Weissglass and Stacey M. Leyton,

People v. Stevens, No. S158852

Defendant's conviction for assault with intent to commit rape and related crimes is affirmed where the stationing of a courtroom deputy next to a testifying defendant is not an inherently prejudicial practice that must be justified by a showing of manifest need. 

Read People v. Stevens, No. S158852 [PDF]

Read People v. Stevens, No. S158852 [HTML]

Appellate Information
Appeal from Alameda County Super. Ct. No. C148565

Filed November 5, 2009

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

Opinion by Corrigan, J.

Counsel
For Appellant:  Alan Charles Dell'Ario

For Appellee:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Rene A. Chacon, Stan Helfman, Laurence K. Sullivan and Arthur P. Beever, Deputy Attorneys General

Perlan Therapeutics, Inc. v. Sup. Ct., No. G042205

In plaintiff's case against the defendant for misappropriation of its trade secrets of an anti-viral protein based therapeutic used as a daily nasal spray for the prevention and treatment of the common cold, plaintiff's petition for a writ of mandate to compel the trial court to accept plaintiff's trade secret identification statement as sufficient and to allow it to commence discovery is denied where: 1) the trial court applied the correct legal standard to plaintiff's trade secret identification statement; and 2) there was a basis in the record to support the court's conclusion that the statement was not reasonably particular under the circumstances presented. 

Read Perlan Therapeutics, Inc. v. Sup. Ct., No. G042205 [PDF]

Read Perlan Therapeutics, Inc. v. Sup. Ct., No. G042205 [HTML]

Filed November 6, 2009

Judges

Opinion by Judge Ikola

Counsel

For Appellant:  Kirby Noonan Lance & Hoge, Michael L. Kirby, Jacob M. Slania, and Julianne Hull

For Appellee:  N/A

In re Cerny, No. A122964

Defendant's petition for habeas relief is denied as the parole board's decision to deny parole was supported by evidence that defendant might revert to his prior drug use and become a danger to public safety if he is released without firm, verifiable parole plans.     

Read In re Cerny, No. A122964 [PDF]

Read In re Cerny, No. A122964 [HTML]

Filed November 4, 2009

Judges

Opinion by Judge Siggins

Counsel

For Appellant:  Benjamin Ramos

For Appellee:  Attorney General of California, Edmund G. Brown Jr., Senior Assistant Attorney General, Anya M. Binsacca, Supervising Deputy Attorney General, Denise A. Yates

People v. Gonzalez, No. B208413

Trial court's sentence and conviction of defendant for assault by means likely to produce great bodily injury is affirmed for the most part, but the sentence is reversed and remanded as the trial court erred in imposing two enhancements for defendant's infliction of great bodily injury on the same victim in the commission of a single offense when it should have imposed only the greatest of those enhancements as required by section 1170.1(g).     

Read People v. Gonzalez, No. B208413 [PDF]

Read People v. Gonzalez, No. B208413 [HTML]

Filed November 4, 2009

Judges

Opinion by Judge Ashmann-Gerst

Counsel

For Appellant:  Mark Yanis

For Appellee:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and William H. Shin, Deputy Attorneys General

Simandle v. Vista de Santa Barbara, No. B209735

Trial court's judgment in favor of defendant-Mobilehome Park that it could remove a mobilehome owned by plaintiffs' deceased parents at plaintiffs' expense is affirmed as the plaintiffs forfeited their statutory right under the Mobilehome Residency Law to sell their parents' mobilehouse at the Park.     

Read Simandle v. Vista de Santa Barbara, No. B209735 [PDF]

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Filed November 4, 2009

Judges

Opinion by Judge Yegan

Counsel

For Appellant:  Martin Cohen & Associates and Dennis Shea

For Appellee:  Robert S. Coldren, Robert G. Williamson, Jr., Daniel T. Rudderow; Hart, King & Coldren, PC.

Trial court's ruling in favor of Credit Suisse concluding that a lien that arises upon service of an order to appear at a judgment debtor examination applies to funds acquired by the plaintiff-law firm from the judgment debtor after the lien came into existence is reversed and remanded as the exception provided under Cal. Code Civ. Pro. section 697.740 is limited to letter of credit transactions, and the record does not unequivocally show that there was no letter of credit transaction in this case. 

Read Credit Suisse First Boston Mortgage Capital v. Danning Gill Diamond & Kollitz, No. B211584 [PDF]

Read Credit Suisse First Boston Mortgage Capital v. Danning Gill Diamond & Kollitz, No. B211584 [HTML]

Filed November 3, 2009

Judges

Opinion by Judge Flier

Counsel

For Appellant:  Frandzel Robins Bloom & Casato, Thomas M. Robins III and Peter Csato

For Appellee:  Danning, Gill, Diamond & Kollitz, Walter K. Oetzell and Uzzi O. Raanan

In re Z.C., No. A123994

A juvenile court's order requiring that the Alameda County Social Services Agency provide reunification services to a guardian to maintain the legal guardianship is affirmed as, under the plain meaning of the statute when considered within the context of juvenile dependency law, section 366.3(b)of the Welfare and Institutions Code provides the juvenile court with the power to order the social services agency to provide reunification services to a legal guardian when deciding whether it is in the best interests of the child to maintain the existing legal guardianship. 

Read In re Z.C., No. A123994 [PDF]

Read In re Z.C., No. A123994 [HTML]

Filed November 3, 2009

Judges

Opinion by Judge Lambden

Counsel

For Appellant:  Andrew James Massey, Joanne Evelyn Morrison, Deputy County Counsel

For Appellee: Caroline Janes Todd

People v. Reyes, No. G038778

Trial court's conviction of defendant for kidnapping to extort a ransom is affirmed as the trial court did not err in denying defendant's suppression motion as circumstances preclude any reasonable expectation of privacy in any markings displayed on the outside of an envelope, such as those identifying AT&T Wireless as the addressor.     

Read People v. Reyes, No. G038778 [HTML]

Read People v. Reyes, No. G038778 [PDF]

Filed October 30, 2009

Judges

Opinion by Judge Aronson

Counsel

For Appellant:  William J. Kopeny & Associates and William J. Kopeny; Kristin A. Erickson

For Appellee:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Scott Taylor, Deputy Attorneys General

M.T. v. Sup. Ct. A125704

Petitioner's request for an extraordinary writ review of a juvenile court's order for a Welfare and Institutions Code section 366.26 hearing to consider modifying the permanent plan for two of his three children from long-term foster care to adoption is denied as petitioner did not have a right to a contested hearing.  

Read M.T. v. Sup. Ct. A125704 [PDF]

Read M.T. v. Sup. Ct. A125704 [HTML]

Filed October 30, 2009

Judges

Opinion by Judge McGuiness

Counsel

For Appellant:  Caroline J. Todd and James S. Donnelly

For Appellee: Dennis J. Herrera, City Attorney and Jennifer Williams, Deputy City Attorney; Gary Gonzalez;  Margaret A. Pendergast

Toal v. Tardif, No. G040112

In plaintiffs' petition for confirmation of an arbitration award against defendants, trial court's grant of plaintiff's petition is reversed as plaintiffs failed to prove a basic prerequisite of private arbitration, the existence of a valid arbitration agreement, and the signature of defendants' attorney on the arbitration stipulation, standing alone, did not constitute substantial evidence that defendants agreed to arbitrate the dispute.  

Read Toal v. Tardif, No. G040112 [PDF]

Read Toal v. Tardif, No. G040112 [HTML]

Filed October 30, 2009

Judges

Opinion by Judge Ikola

Counsel

For Appellant:  Peter E. Ronay

For Appellee:  Theodore C. Beall

In plaintiff's action against defendant-district concerning its adoption of Rule 1406 claiming that it was exempt from environmental review under the California Environmental Quality Act, judgment of the trial court is reversed as there was insufficient evidence to support the District's finding that the adoption of Rule 1406 was within the Class 8 categorical exemption. 

Read California Unions for Reliable Energy v. Mojave Desert Air Quality Mgmt. Dist., No. E046687 [PDF]

Read California Unions for Reliable Energy v. Mojave Desert Air Quality Mgmt. Dist., No. E046687 [HTML]

Filed October 30, 2009

Judges

Opinion by Judge Richli

Counsel

For Appellant: Adams Broadwell Joseph & Cardozo, Marc D. Joseph and Gloria D. Smith

For Appellee:  Best Best & Krieger, Michelle Ouellette and Brian D. Mabee; Karen K. Nowak, District Counsel

Lake Almanor Assoc., LLP. v. Huffman-Broadway Group, Inc., No. A122563

In plaintiff-developer's breach of contract and negligence case against a consultant hired by a county to prepare an environmental impact report (EIR), district court's sustaining of defendant's demurrer to plaintiff's complaint is affirmed as the balance of the factors militates against a conclusion that a consultant owes a duty of care to a project applicant in the timely completion of a draft EIR. 

Read Lake Almanor Assoc., LLP. v. Huffman-Broadway Group, Inc., No. A122563 [PDF]

Read Lake Almanor Assoc., LLP. v. Huffman-Broadway Group, Inc., No. A122563 [HTML]

Filed October 30, 2009

Judges

Opinion by Judge Simons

Counsel

For Appellant:  William C. Neasham, Patricia Kramer, Jacob D. Heninger, and Chad A. Vierra

For Appellee:  Lewis Brisbois Bisgaard & Smith, LLP, George J. Ziser, Bridget Childs, Jeffry A. Miller, and Matthew B. Stucky

People v. Katzenberger, No. C058883

Trial court's conviction of defendant for inflicting corporal injury on the mother of his child in violation of Penal Code section 273.5(a) is affirmed where, although the prosecution's use of Power Point presentation in its closing argument to illustrate the "beyond the reasonable doubt" standard was improper, such misconduct did not prejudice the defendant.     

Read People v. Katzenberger, No. C058883 [PDF]

Read People v. Katzenberger, No. C058883 [HTML]

Filed November 2, 2009

Judges

Opinion by Judge Cantil-Sakauye

Counsel

For Appellant:  Kathleen M. Gilbert

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

People v. McRoberts, No. C060485

Trial court's order committing defendant to a state hospital for an indeterminate term of treatment and confinement is affirmed where: 1) trial court was correct in applying section 6600.1, of the Sexually Violent Predator Act (SVPA), to defendant's juvenile adjudication for child molestation, as the government satisfied this element of an SVPA commitment; 2) trial court did not abuse its discretion in excluding the testimony of his lay witnesses; and 3) court did not err in refusing defendant's request for an instruction requiring the jury to find it was necessary to keep him in a secure facility for the protection of the health and safety of others. 

Read People v. McRoberts, No. C060485 [PDF]

Read People v. McRoberts, No. C060485 [HTML]

Filed November 2, 2009

Judges

Opinion by Judge Nicholson

Counsel

For Appellant:  Deborah L. Hawkins

For Appellee:  Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Judy Kaida and Julie A. Hokans, Deputy Attorneys General

Schachter v. Citigroup, Inc. , No. S161385

In a putative class action against Citigroup by its former employees challenging the company's forfeiture provision of a voluntary employee incentive compensation plan (Plan) upon termination in violation of Labor Code section 201 and 202, judgment of the court of appeals granting Citigroup's motion for summary judgment is affirmed as the company Plan's forfeiture provision does not run afoul of sections 201 or 202 because no earned wages remain unpaid upon termination for cause or resignation. 

Read Schachter v. Citigroup, Inc. , No. S161385 [PDF]

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Appellate Information
Appeal from Los Angeles County Super. Ct. No. BC191447

Filed November 2, 2009

Judges
Before:  George, C. J., Baxter, J., Werdegar, J., Chin, J., McConnell, J., Moreno, J., and Ramirez, J.

Opinion by Moreno, J.

Counsel
For Appellant: Law Offices of Ashley D. Posner, Ashley D. Posner and Barbara Brudno

For Appellee:  Skadden, Arps, Slate, Meagher & Flom, Raoul D. Kennedy, Joren S. Bass, Joan Shreffler, Douglas B. Adler, Seth M. Schwartz, Jeffrey W. McKenna, William P. Frank, Preeta D. Bansal and Sarah E. McCallum