California Case Law: December 2009 Archives
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December 2009 Archives

Biscaro v. Stern, No. B205856

Trial court's issuance of restraining order against the defendant to stay at least 100 yards away from his ex-wife and her adult son is reversed where: 1) it was reversible error not to rule on defendant's request for accommodation for his neurological disabilities; and 2) it was an error to award the condominium as the ex-wife's separate property as the judgment of dissolution against the defendant was by default, and as such, a default judgment may not award more relief than a complaint requests without violating due process.   

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Appellate Information

Filed December 30, 2009

Judges

Opinion by Judge Rubin

Counsel
For Appellant:   Allen L. Lanstra, Jr.

For Appellee:   N/A

Ass'n of California Ins. Co. v. Poizner, No. B208402

In plaintiff-Association of California Insurance Companies' lawsuit disputing the validity of the 2006 amendments to regulations permitting consumer interest interveners to obtain compensation for participation in the administrative rate-setting process where an order or decision is issued by the Commissioner on an insurer's rate-setting application without a formal rate hearing is affirmed where: 1) plaintiffs have failed to establish that the amended regulations are inconsistent with the governing statutes, and the trial court properly rendered a judgment denying their petition for a peremptory writ of mandate; and 2) plaintiffs fail to show that the trial court erred in awarding Foundation for Taxpayer and Consumer Rights compensation payable by them. 

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Appellate Information

Filed December 30, 2009

Judges

Opinion by Judge Mallano

Counsel
For Appellant:   Horvitz & Levy, David M. Axelrad, Mitchell C. Tilner; Barger & Wolen, Robert W. Hogeboom, Suh Choi and Michael A. S. Newman

For Appellee:   Edmund G. Brown, Jr., Attorney General, W. Dean Freeman and Felix E. Leatherwood, Supervising Deputy Attorneys General, Diane Spencer Shaw and Christine Zarifian, Deputy Attorneys General

Kemps v. Beshwate, No. F056377

Trial court's order striking plaintiff's complaint upon the granting of an anti-SLAPP motion, arising from plaintiff's arrest on a bench warrant involving her alleged failure to appear as a subpoenaed witness in a murder trial, is affirmed as plaintiff's tort claims against the defendants are barred by the Civil Code section 47(b) and she has failed to demonstrate she probably would prevail in the present action.   

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Appellate Information

Filed December 30, 2009

Judges

Opinion by Judge Vartabedian

Counsel
For Appellant:   Wilkins, Drolshagen & Czeshinski, James H. Wilkins and Quentin C. Cedar

For Appellee:   Law Offices of Bennett & Sharpe, Inc., Barry J. Bennett, Thomas M. Sharpe, Elaine M. Yama and Heather N. Phillips, Bonetati, Kincaid & Kincaid, Inc., Marilyn L. Bonetati and Michelle C. Edborg

People v. Thompson, No. D054037

Conviction of defendant for vehicular manslaughter while intoxicated and driving under the influence of alcohol or drugs is affirmed but modified where the judgment with the sentence of 26 years four months is affirmed as the correct sentence is reflected in the court's minutes and the abstract of judgment, not in the court's oral pronouncement of sentence as stated in the reporter's transcript. 

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Appellate Information

Filed December 29, 2009

Judges

Opinion by Judge Huffman

Counsel
For Appellant:   Michael Bacall

For Appellee:   Edmund G. Brown, Jr., Attorney General,  Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr. and Marcella O. McLaughlin, Deputy Attorneys General

Jasmine Networks, Inc. v. Sup. Ct., No. H034441

In plaintiff's action under the California Uniform Trade Secrets Act claiming that the defendants misappropriated certain trade secrets belonging to plaintiff, trial court's dismissal of the complaint on the ground that plaintiff had forfeited its standing to maintain an action for misappropriation when it had gone through bankruptcy proceedings shortly after filing the complaint is reversed where: 1) a current ownership requirement is not supported by general principles of property or tort law; 2) existing authority imposes no "current ownership requirement" on trade secret plaintiffs; 3) adoption of a current ownership requirement in trade secrets cases is not warranted by analogy to trademark, patent, or copyright law; and 4) no policy concern preponderates in favor of current ownership requirement. 

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Appellate Information

Filed December 29, 2009

Judges

Opinion by Judge Rushing

Counsel
For Appellant:   Trepel Law Firm, Anthony J. Trepel, McGrane Greenfield, William McGrane, Christopher Sullivan, Maureen Harrington, Greines, Martin, Stein & Richland, Robin Meadow, Marc J. Poster, Alana H. Rotter.

For Appellee:   Latham & Watkins, Steven M. Bauer, Charles Crompton, James K. Lynch, Cooke Kobrick & Wu, Steven S. Wu, Christopher C. Cooke, Jeffrey W. Kobrick

Reddell v. California Coastal Comm'n, No. B206428

In an action arising following denial of plaintiff's application for a coastal development permit for the construction of residential and commercial buildings on six lots on the bluffs above a city, dismissal of plaintiff's petition for a writ of administrative and ordinary mandate and a complaint for damages and equitable relief against the California Coastal Commission is affirmed where: 1) the Commission's interpretation of the city's local coastal plan and Coastal Act Provisions is reasonable, and substantial evidence supports its decision, visitor-serving priorities; 2) the Commission had no duty to approve a revised project; 3) trial court did not err in dismissing the complaint in concluding that the Commission conducted a fair hearing, did not proceed in excess of its jurisdiction and did not abuse its discretion in disposing of plaintiff's claims for violation of due process and equal protection; and 4) plaintiff's claim for damages for a regulatory taking of property is not ripe.     

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Appellate Information

Filed December 29, 2009

Judges

Opinion by Judge Perren

Counsel
For Appellant:   William S. Walter

For Appellee:   Edmund G. Brown, Jr., Attorney General,  John A. Saurenman, Senior Assistant Attorney General, Christina B. Arndt, Supervising Deputy Attorney General, Terry T. Fujimoto, Rosana Miramontes, Deputy Attorneys General

County of Sacramento v. Sup. Ct., No. C062025

In an action against a county claiming  violations of the California Environmental Quality Act (CEQA), denial of county's motion to dismiss is reversed as, construing section 21167.4 as a whole, a request for a hearing in an action alleging noncompliance with the CEQA must be made in a writing filed with the court to avoid dismissal, and here, the plaintiff failed to file a written hearing request within the time allowed.  

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Appellate Information

Filed December 29, 2009

Judges

Opinion by Judge Robie

Counsel
For Appellant:   Robert A. Ryan Jr., County Counsel and Krista C. Whitman, Deputy County Counsel; Sheppard, Mullin, Richter & Hampton and Arthur J. Friedman

For Appellee:   Belsher & Becker and John W. Belsher and Gregory A. Connell

Hernandez v. Lopez, No. G040956

In plaintiffs' action against defendants for breach of contract, intentional tort, and fraud, arising from sale of plaintiffs' restaurant business to the defendants, trial court's decision following a one-day bench trial is reversed and remanded where: 1) plaintiffs adequately stated claims in quasi-contract and tort; and 2) an unqualified reversal is appropriate as plaintiffs are entitled to a determination of all causes of action.   

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Appellate Information

Filed December 29, 2009

Judges

Opinion by Judge Aronson

Counsel
For Appellant:   Buddy Clark

For Appellee:   Parker Stanbury and J. Luis Garcia

People v. Pham, No. G040848

Conviction of defendant-chiropractor of sexual battery by fraud for touching the intimate body parts of his patients while purporting to examine them is affirmed as there is substantial evidence to support the jury's finding that defendant committed sexual battery by fraud because there is sufficient evidence from which the jury could find that the patients were unconscious of defendant's sexual intentions at the time of their treatment, and because the evidence also shows the victims' unconsciousness was attributable to defendant's fraudulent representations - both implied and actual.     

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Appellate Information

Filed December 28, 2009

Judges

Opinion by Judge Bedsworth

Counsel
For Appellant:   Phillip I. Bronson

For Appellee:   Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kristen Kinnaird Chenelia and Christine Levingston Bergman, Deputy Attorneys General

People v. Murphy, No. E046742

Defendant's conviction for procuring or offering false information for filing and insurance fraud, arising from a stolen vehicle report filed by defendant, is affirmed where: 1) defendant's conviction under Penal Code section 115 was not preempted by Vehicle Code section 20 or 10501; and 2) CALCRIM No. 2000 more than adequately conveyed to the jury that it was required to find that defendant made a fraudulent insurance claim, payment of which she was not entitled to receive.     

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Appellate Information

Filed December 28, 2009

Judges

Opinion by Judge Miller

Counsel
For Appellant:   Helen S. Irza

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 Attorneys General

People v. Frausto, No. B212054

Conviction of defendant for first degree murder and attempted premeditated murder is affirmed but the judgment is modified where: 1) substantial evidence supported the gun-use enhancements; 2) the trial court erred in imposing more than one 5 year enhancement pursuant to Pen. Code section 667(a)(1) as separate enhancements were improperly imposed for three prior convictions; and 3) defendant is entitled to credit for 466 days of presentence custody as his presentence custody credit was miscalculated.     

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Appellate Information

Filed December 28, 2009

Judges

Opinion by Judge Rubin

Counsel
For Appellant:   Brett Harding Duxbury

For Appellee:   Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General

People v. Moret, No. A123591

In a prosecution for possession of a concealed firearm, trial court's imposition of several conditions on defendant's probation, specifically a condition requiring non-use of marijuana and the surrender of his medical marijuana card, is affirmed where: 1) the combination of provisions of Health and Safety Code section 11357 and 11362.795 and cited authorities make it clear that there was nothing in the slightest unlawful or unconstitutional about the probation conditions imposed on, and explicitly agreed to, by defendant; 2) court did not abuse its discretion when it gave the defendant the choice to accept among several conditions, including drug testing and jail time; and 3) there were no improper or unlawful choice being forced on defendant.     

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Appellate Information

Filed December 28, 2009

Judges

Opinion by Judge Haerle

Counsel
For Appellant:   Robert L.S. Angres

For Appellee:   Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, S. Kaye, Supervising Deputy Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General

Sunset Sky Ranch Pilots Ass'n v. County of Sacramento, No. S165861

Court of Appeals' reversal of a trial court's denial of plaintiffs' mandamus petition seeking to prevent the closure of a private airport, holding that defendant-county's action amounted to a project requiring environmental review under CEQA, is reversed as: 1) declining to renew the conditional use permit was not a public project under CEQA because the county did not directly undertake to close the airport, but simply decided not to reauthorize a private activity that required a permit; and 2) as the airport operation was the project in question, projects rejected by a public agency are specifically exempted from CEQA requirements.     

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Appellate Information
Appeal from Sacramento County Super. Ct. No. 06CS00265

Filed December 28, 2009

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

Opinion by Corrigan, J.

Counsel
For Appellant:  Law Office of Lanny T. Winberry and Lanny T. Winberry

For Appellee:  Robert A. Ryan, County Counsel, and Krista C. Whitman, Deputy County Counsel

People v. Sanchez, No. E048972

Defendant's conviction for misdemeanor indecent exposure is affirmed as defendant's contention that his right to a fair trial was violated by the security measures used during the trial (specifically, a deputy accompanying defendant and being near him while he testified) is rejected.     

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Appellate Information

Filed December 23, 2009

Judges

Opinion by Judge Ramirez

Counsel
For Appellant:   David L. Polsky

For Appellee:   Rod Pacheco, District Attorney, and Alan D. Tate, Senior Deputy District Attorney

Haro v. Ibarra, No. B213499

In an action brought by doctors who were former shareholders of a medical corporation, trial court's dismissal of the complaint is reversed and remanded where: 1) the second amended complaint states a cause of action; and 2) equitable circumstances alleged in the case warrant an exception to the requirement that plaintiffs maintain continuous ownership of the shares in order to bring a shareholder derivative action.     

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Appellate Information

Filed December 23, 2009

Judges

Opinion by Judge Chaney

Counsel
For Appellant:   Nunziato Buckley Weber, Tom A. Nunziato and Illece Buckley Weber

For Appellee:   Christensen & Auer, Stephen G. Auer and Vicki C. Gadbois; Herzfeld & Rubin, Craig L. Winterman and Stephanie L. Rockey; Reback, McAndrews, Kjar, Warford & Stockalper, Robert C. Reback and Thien T. Nguyen

Zermeno v. Precis, Inc., No. B207674

In plaintiffs' unfair competition action against defendants-healthcare discount program providers, trial court's judgment in favor of the defendants on the ground that the pre-trial settlement of plaintiffs' damage claims meant they no longer had standing to sue under the new standing requirements of Proposition 64 is reversed and remanded as the changed standing rule was not intended to apply to cases pending when it took effect where a plaintiff had suffered actual injury as required by the new law, but settled that portion of its action before Proposition 64 took effect. 

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Appellate Information

Filed December 23,  2009

Judges

Opinion by Judge Rubin

Counsel
For Appellant:   Neighborhood Legal Services of Los Angeles County, David Pallack, Joshua Stehlik, Jose O. Tello and Christina Ku; Los Angeles Center for Law & Justice and Hellen Hong

For Appellee:   Mayer Brown, Philip R. Recht, Christopher P. Murphy and Francisco Ochoa

People v. Leal, No. B211365

Defendant's conviction for rape and sexual penetration by artifice, pretense or concealment and related crimes is affirmed where: 1) the evidence supports a finding that defendant intended to and did induce the victim into believing he was her husband, and for that reason submitted to his sexual advances; 2) the evidence was sufficient to satisfy the force element of the crime of assault with intent to commit rape; and 3) court did not err in failing to instruct the jury on simple assault as a lesser included offense to charge of assault with intent to commit rape or another sexual offense.     

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Appellate Information

Filed December 23, 2009

Judges

Opinion by Judge Perren

Counsel
For Appellant:   Edward H. Schulman

For Appellee:   Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan, Peggy Z. Huang, Deputy Attorneys General

Park 100 Inv. Group II v. Ryan, No. B208189

In plaintiff's action against defendant-attorneys claiming that a lis pendens on property was wrongfully recorded, denial of attorneys' anti-SLAPP motion is reversed where it is proper to record a notice of pendency of action, commonly called a lis pendens, on a dominant tenement when the litigation is an easement dispute.     

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Appellate Information

Filed December 23, 2009

Judges

Opinion by Judge Aldrich

Counsel
For Appellant:   Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup, Bartley L. Becker and Barry Zoller

For Appellee:   Freedman & Taitelman, Bryan J. Freedman, Jacqueline C. Brown and Bradley H. Kreshek

D.R.S. Trading Co., Inc. v. Barnes, No. G041551

An order by the trial court vacating a default judgment entered against a defendant is affirmed as plaintiff's contention confuses the court's power to reconsider the merits of the entered judgment itself, or to reconsider interim orders which have been subsumed within that judgment, with its power to reconsider an order which it is specifically authorized to make in the first instance after entry of the judgment under Code of Civil Proc. section 473(b).     

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Appellate Information

Filed December 23, 2009

Judges

Opinion by Judge Bedsworth

Counsel
For Appellant:   Pestotnik & Gold and Russell A. Gold; Luce, Forward, Hamilton & Scripps and Charles A. Bird

For Appellee:   Law Offices of Thomas E. Francis and Thomas E. Francis; Bohm, Matsen, Kegel & Aguilera and Raymond E. Brown

Washington Mut. Bank v. Jacoby, No. B212347

Trial court's grant of summary judgment in favor of State Farm General Insurance Company (State Farm), in an interpleader action initiated by Washington Mutual Bank arising from a purchase of a property at a sheriff's sale, where defendants both claimed an entitlement to excess funds Washington Mutual received in satisfaction of a promissory note secured by a deed of trust it held, is affirmed as defendant has no entitlement to the excess funds, he has no privity with State Farm he was not insured on the homeowner's insurance policy, and he did not become a successor to the insurance policy by virtue of his purchase of the property at an execution sale.  

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Appellate Information

Filed December 22, 2009

Judges

Opinion by Judge Bigelow

Counsel
For Appellant:   Ezer & Williamson and Mitchel J. Ezer

For Appellee:  Robie & Matthai, James R. Robie, Michael J. O'Neill and Natalie A. Kouyoumdjian

American Meat Inst. v. Leeman, No. D053325

In an action by the plaintiffs-American Meat Institute and National Meat Association seeking a declaration that the consumer warnings required by the California Safe Drinking Water and Toxic Enforcement Act of 1986 are preempted by the Federal Meat Inspection Act (FMIA), judgment in favor of plaintiffs is affirmed where: 1) the trial court properly overruled the demurrer; and 2) FMIA expressly preempts point of sale warning requirements imposed by Proposition 65 with respect to meat, and on that basis the trial court's ruling on the motion for summary judgment is affirmed.     

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Appellate Information

Filed December 22, 2009

Judges

Opinion by Judge Irion

Counsel
For Appellant:   Morrison & Foerster, Michele B. Corash, Maria Chedid, William F. Tarantino and Joanna E. Herman

For Appellee:  Hirst & Chanler, Clifford A. Chanler and David Lavine

People v. Johnson, No. B207182

Conviction of defendant for assault with a deadly weapon is affirmed where: 1) defendant's proposed instruction based on CALCRIM No. 3471 was irrelevant to the jury's consideration of whether defendant acted in reasonable self-defense; and 2) because CALCRIM No. 3471 concerns the preliminary factual question of whether a defendant has the right to act in self-defense, the trial court's unqualified instruction on reasonable self-defense rendered that instruction unnecessary.     

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Appellate Information

Filed December 22, 2009

Judges

Opinion by Judge Mosk

Counsel
For Appellant:   Jeanine G. Strong

For Appellee:  Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, David Zarmi, Deputy Attorney General

People v. Franco, No. B211850

Conviction for maintaining a place for selling, giving away or using a controlled substance is reversed and remanded where: 1) trial court erred by giving the jury an instruction that permitted it to convict defendant for maintaining a place for his own personal drug use, as Health & Saf. Code section 11366 is not violated by a defendant's personal use of a controlled substance in his or her own home, even if the defendant used drugs continuously or repeatedly; and 2) section 11366 is violated only if the defendant maintains a place for the continuous or repeated use of drugs by others.  

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Appellate Information

Filed December 22, 2009

Judges

Opinion by Judge Mosk

Counsel
For Appellant:   California Appellate Project, Jonathan B. Steiner, Executive Director, and Ronnie Duberstein

For Appellee:  Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Thomas C. Hsieh, Deputy Attorney General

Massey v. Mercy Med. Center Redding, No. C060591

In plaintiff's negligence action against a nurse and the hospital that employed the nurse alleging that he sustained injury after falling from a walker because the nurse placed the plaintiff on the walker and left him unattended, judgment of the trial court is reversed in part where: 1) the question of nurse's alleged negligence for the fall poses a question of common knowledge, and therefore does not require expert opinion testimony; and 2) trial court's judgment that denied plaintiff's attempt to amend his complaint to add causes of action for battery, fraud and elder abuse is affirmed.     

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Appellate Information

Filed December 22, 2009

Judges

Opinion by Judge Butz

Counsel
For Appellant:  Michael A. Doran

For Appellee: Kenny, Snowden & Norine and Kelly J. Snowden

Turner v. Vista Pointe Ridge Homeowners, No. G040480

In plaintiff-homeowners' suit against defendant-homeowners association (HA) arising from its application of architectural guidelines, trial court's grant of HA's motion to strike is reversed as, whether or not the subject matter of the underlying dispute was a matter of public interest, the trial court erred in granting the HA's motion because the HA's actions that formed the basis of plaintiffs' causes of action were not taken in furtherance of the HA's right of free speech. 

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Appellate Information

Filed December 22, 2009

Judges

Opinion by Judge Moore

Counsel
For Appellant:   Law Offices of Steven R. Young and Jim P. Mahacek

For Appellee:  Litchfield Cavo, Edward D. Vaisbort and Melinda W. Ebelhar

Polster v. Sacramento County Office of Educ., No. C059733

Grant of a writ of mandate commanding county superintendent to process payroll requests pursuant to a transition plan adopted by the outgoing board of a high school district, a plan that awarded severance buyout packages to several district administrative employees, including plaintiffs, is reversed as the superintendents' refusal to approve payroll warrants to carry out the transition plan was a proper exercise of his authority under Education Code section 42127.6(j) and he did not abuse his discretion in exercising that authority.     

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Appellate Information

Filed December 22, 2009

Judges

Opinion by Judge Burner

Counsel
For Appellant:   Tucker Ellis & West LLP, Matthew I. Kaplan, Robert A. Cutbirth and Rebecca A. Lefler

For Appellee:  Gagen McCoy McMahon Koss Markowitz & Raines, Gregory I. McCoy

People v. Lowery, No. E047614

Conviction of defendant for threatening a victim or witness who provided assistance to law enforcement in a criminal proceeding where defendant was prosecuted for stealing $250,000 in cash from an 88-year old is affirmed as defendant's overbreadth challenge to Penal Code section 140(a) is rejected as it does not regulate speech protected by the First Amendment and does not violate the First Amendment as applied in defendant's case.     

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Appellate Information

Filed December 21, 2009

Judges

Opinion by Judge Ramirez

Counsel
For Appellant:   William D. Farber

For Appellee:   Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Gil Gonzalez, Deputy Attorney General

People v. Ulloa, No. E045880

Trial court's conviction of defendant for first-degree residential burglary and related crimes is affirmed as there was no prejudicial error or any constitutional due process violation, and even assuming that defendant had a possessory interest in the apartment under the lease at the time of the charged crimes, this was not a complete defense to the burglary charge because there was substantial evidence he had moved out of the apartment prior to the crimes and therefore no longer had an unconditional possessory interest in the apartment unit.   

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Appellate Information

Filed December 21, 2009

Judges

Opinion by Judge Gaut

Counsel
For Appellant:   Helen S. Irza

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

People v. Tarris, No. E046290

Conviction of defendant for unlawful disposal of hazardous waste and related offenses is affirmed as there was sufficient evidence to support defendant's convictions and the trial court did not abuse its discretion in ordering defendant to pay the Hazardous Materials Management Division (HMMD) for the costs of investigation as a condition of probation.  However, defendant's sentence is reversed where: 1) the trial court erred in imposing restitution fines under Health and Safety Code section 25189.5(e), which resulted in duplicate fines, constituting multiple punishment for the same act or course of conduct; and 2) the court erred in imposing excessive court security fees and in assessing a court construction fee. 

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Appellate Information

Filed December 21, 2009

Judges

Opinion by Judge Gaut

Counsel
For Appellant:   Joanna Rehm

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

Sakhai v. Zipora, No. B210323

In plaintiffs' action for negligence and trespass against defendants arising from a flood and damage to their property after a water pipe burst in their leased apartment, dismissal of the suit by the trial court on its own motion is affirmed as the trial court gave proper notice of its order to show cause as to why the case should not be dismissed for delay in prosecution, in accordance with Cal. Rules of Court, rule 3.1340(b). However, the trial court's order of dismissal is modified to one without prejudice.     

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Appellate Information

Filed December 21, 2009

Judges

Opinion by Judge Bigelow

Counsel
For Appellant:   Schuler & Brown, Jack M. Schuler and Sam D. Ekizian

For Appellee:   Law Offices of Thomas O'Hagan and Harvey L. Goldhammer; Goates & McCarthy and David A. Koester

Mahnke v. Sup. Ct., No. B216110

In proceedings arising from the loss of insureds' home from a fire, insureds' petition for writ of mandate challenging a trial court's grant of the California FAIR Plan Association's (CFPA) motion to disqualify a party appraiser selected by insureds is granted and the order of the trial court vacated where: 1) party-selected appraisers may be disqualified when a substantial business relationship exists between the appraiser and a party; and 2) the disclosed relationship between the appraiser and the insureds' counsel does not warrant his disqualification.  

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Appellate Information

Filed December 21, 2009

Judges

Opinion by Judge Perluss

Counsel
For Appellant:   Shane, DiGiuseppe & Rodgers and Stephen A. DiGiuseppe

For Appellee:   Millard, Holweger, Child & Marton, Bradley P. Childers

People v. Bejarano, No. E046719

Conviction of defendant for failing to comply with defendant's obligation to register annually as a convicted sex offender is affirmed where: 1) defendant's argument that the trial court had a sua sponte duty to instruct the jury that his severe depression was a defense to his failure to register is rejected as such a defense was unavailable to defendant; 2) trial court's instruction that severe depression does not excuse the duty to register was incorrect but the error did not prejudice defendant; 3) any failure on the part of defense trial counsel to object or request an instruction was not prejudicial; and 4) trial court did not act unreasonably in imposing a lower term. 

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Appellate Information

Filed December 21, 2009

Judges

Opinion by Judge Ramirez

Counsel
For Appellant:   Laurel M. Nelson

For Appellee:   Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, Janet E. Neeley, and Lynne G. McGinnis, Deputy Attorneys General

Polanski v. Sup. Ct., No. B217290

In proceedings involving the criminal charges against fugitive movie director Roman Polanski, Polanski's petition to compel the trial court to dismiss the prosecution against him or, at least, to conduct an evidentiary hearing on his request, is denied as the trial court did not abuse its discretion in applying the fugitive disentitlement doctrine and refusing to consider dismissing the action.  In so ruling, the court of appeals does not disregard the extremely serious allegations of judicial and prosecutorial misconduct that have been raised, and urges the parties to take steps to investigate and to respond to the claims. 

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Appellate Information

Filed December 21, 2009

Judges

Opinion by Judge Zelon

Counsel
For Appellant:   Manatt, Phelps & Phillips, Chad S. Hummel, Diana M. Kwok, Benjamin G. Shatz; Douglas Dalton; and Bart P. Dalton

For Appellee:   Steve Cooley, District Attorney, Irene T. Wakabayashi, Phyllis C. Asayama and David Walgren, Deputy District Attorneys

Haberman v. Cengage Learning, Inc., No. G041638

In plaintiff's action against her former employer alleging sexual harassment, retaliation, breach of contract, and intentional infliction of emotional distress, summary judgment for defendants is affirmed where: 1) trial court did not err in granting defendants' motion for summary judgment because the acts of alleged harassment did not rise to the level of establishing a hostile work environment as a matter of law; 2) no evidence showed plaintiff suffered any adverse employment action because she complained about sexual harassment; 3) the trial court properly granted summary judgment as to plaintiff's intentional infliction of emotional distress claim as the record does not contain any evidence showing plaintiff was subjected to extreme or outrageous conduct by defendants as a matter of law. 

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Appellate Information

Filed December 21, 2009

Judges

Opinion by Judge Fybel

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

For Appellee:   Epstein Becker & Green, James A. Goodman and Tae Kim

Where civil service rules vest a civil service commission with jurisdiction over an employee's appeal of her discharge, including an attendant claim for a resulting loss of pay, the employee's retirement during the pendency of civil service proceedings divests the commission of jurisdiction over the civil service appeal. 

Read County of Los Angeles Dep't of Health Serv. v. Civil Serv. Comm'n of the County of Los Angeles, No. B211625 [HTML]

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Appellate Information

Filed December 21, 2009

Judges

Opinion by Judge Rubin

Counsel
For Appellant:   Posner & Rosen, Howard Z. Rosen and Jason C. Marsili

For Appellee:   Hausman & Sosa, Jeffrey M. Hausman and Larry D. Stratton

Page v. Miracosta Cmty. College Dist., No. D054212

In plaintiff-taxpayer's multi-count petition for writ of mandate challenging the District Board of Trustee's actions in approving a settlement between the District and a former president and superintendent of the District and a community college, judgment of the trial court is reversed and remanded where: 1) plaintiff was entitled to summary adjudication of illegal expenditure of public funds and unjust enrichment claims on grounds that District's payments to the former president in connection with the termination of her contract exceed the cash and noncash limitations contained in section 53260 and 53261; 2) defendants are not entitled to summary judgment on the claims alleging an unconstitutional gift of public funds; and 3) trial court erred in sustaining defendant's demurrers to plaintiff's claim of violation of section 54956.9 of the Brown Act without leave to amend.     

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Appellate Information

Filed December 21, 2009

Judges

Opinion by Judge O'Rourke

Counsel
For Appellant:   Ronald James Cozad

For Appellee:   Jack M. Sleeth; Winet, Patrick & Weaver and Randall L. Winet

In Re Phoenix H., No. S155556

In proceedings arising from a termination of parental rights, a court of appeals' dismissal of parent's appeal is affirmed where: 1) in circumstances where appointed counsel for an appealing parent files a brief raising no issues, a court of appeal has the discretion to permit the parent to personally file a brief but must do so only upon a showing of good cause that an arguable issue does, in fact, exist; and 2) here, the court of appeal properly declined to permit the parent to personally file a brief because the parent failed to make such a showing. 

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Appellate Information
Appeal from San Diego County, No. SJ11392

Filed December 11, 2009

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

Opinion by Moreno, J.

Counsel
For Appellant:  Patti L. Dikes

For Appellee:  John J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, Lisa M. Maldonado and Gary C. Seiser, Deputy County Counsel

Donley v. Davi, No. C058975

In plaintiff's petition for writ of administrative mandamus challenging a denial of his application for an unqualified real estate salesperson license by the Commissioner of the California Department of Real Estate (DRE), judgment in favor of the Commissioner is affirmed where: 1) plaintiff's conviction for domestic violence is a crime involving moral turpitude; 2) the conviction was substantially related to the qualifications, functions, and duties of a real estate salesperson license; and 3) substantial evidence supports the Commissioner's finding that plaintiff was only partially rehabilitated.     

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Appellate Information

Filed December 18, 2009

Judges

Opinion by Judge Cantil-Sakauye

Counsel
For Appellant:   Timothy E. Hodgson

For Appellee:   Edmund G. Brown, Jr., Attorney General, Paul D. Gifford, Senior Assistant Attorney General, William L. Carter, Supervising Deputy Attorney General, Jeffrey A. Rich, Deputy Attorney General

People v. Kennedy, No. H034021

Trial court's judgment requiring mandatory lifetime sex offender registration for a defendant convicted of attempting to exhibit harmful matter to a minor by the Internet and other crimes is affirmed as there was no equal protection violation in this case.     

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Appellate Information

Filed December 18, 2009

Judges

Opinion by Judge Bamattre-Manoukian

Counsel
For Appellant:   Daniel L. Barton, Esq, Daniel Olmos, Esq., Nolan, Armstrong & Barton

For Appellee:   Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, Lisa Ashley Ott, Deputy Attorney General

In re L.A., No. H034276

An order by a juvenile court removing a father's children from his home, placing them in the custody of their paternal grandparents, and ordering family reunification services for both father and the children's mother is reversed and remanded as the court had the discretion to order a legal guardianship under section 360(a) and then to order the required assessment report, which would include information on the department's efforts to contact and notify the mother.     

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Appellate Information

Filed December 18, 2009

Judges

Opinion by Judge Bamattre-Manoukian

Counsel
For Appellant:   Lee Gulliver, Sixth District Appellate Program

For Appellee:   Office of County Counsel, Miguel Marquez, Acting County Counsel, Harrison Taylor, Deputy County Counsel

Suarez v. Pac. Northstar Mech., Inc., No. A121349

Trial court's grant of summary judgment in favor of a subcontractor arising from injuries suffered by two employees of the general contractor is reversed as, neither common law nor the applicable construction contract created a duty on the part of the subcontractor to take affirmative steps to protect those working for other employers from hazards not created by the subcontractor, but the subcontractor did have a duty of care created by applicable workplace safety statutes and regulations requiring the subcontractor to report hazards to which its employees were exposed, and under California law, one who breaches such a duty is liable in tort.     

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Appellate Information

Filed December 18, 2009

Judges

Opinion by Judge Ruvolo

Counsel
For Appellant:  Corsiglia McMahon & Allard, Bradley M. Corsiglia and Jeffry W. Lochner

For Appellee:   Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Christopher J. Nevis, Richard G. Garcia, and Matthew B. Stucky

City of Carlsbad v. Ins. Co. of the State of Pennsylvania, No. D053843

In an action by a city against an insurance company seeking indemnification arising from a lawsuit by homeowners involving a landslide that occurred as a result of the city water district's negligent maintenance of its water system, judgment of the trial court in favor of the defendant-insurance company is affirmed as, an exclusion in the policy plainly and precisely explained to the city that the peril of land subsidence, including landslides, was not covered, regardless of the cause.     

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Appellate Information

Filed December 17, 2009

Judges

Opinion by Judge Nares

Counsel
For Appellant:   Levine, Steinberg, Miller & Huver, Harvey R. Levine, Craig A. Miller; and Ronald R. Ball, City Attorney

For Appellee:   Lewis, Brisbois, Bisgaard & Smith, Rebecca R. Weinreich and Stephen V. Kovarik

R.R. v. Sup. Ct., No. C060573

A juvenile's petition for a writ of mandate to compel the juvenile court to vacate its order refusing to apply ICWA is granted as, because ICWA sets the minimum standards for the protection of Indian children with respect to their tribal relationships, California law imposing a higher standard is not inconsistent with the purpose of the federal law, and is not preempted.     

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Appellate Information

Filed December 17, 2009

Judges

Opinion by Judge Blease

Counsel
For Appellant:  Paulino G. Duran, Public Defender, Arthur L. Bowie, Supervising Assistant Public Defender, Randi Barrat, Assistant Public Defender

For Appellee:   Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Charles A. French, Supervising Deputy Attorney General, Jeffrey D. Firestone, Deputy Attorney General

Planning & Conservation League v. Castaic Lake Water Agency, No. B200673

In plaintiffs' request for an administrative mandamus challenging an environmental impact report certified by the defendant pursuant to CEQA concerning a transfer of water from a water agency and a water storage district to the defendant's, judgment of the trial court is reversed, vacated and remanded as, although the trial court correctly rejected plaintiffs' principal contentions, it erred in issuing the writ because the EIR contains no material defects.     

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Appellate Information

Filed December 17, 2009

Judges

Opinion by Judge Manella

Counsel
For Appellant:   Rossmann and Moore, LLP, Antonio Rossmann, Roger B. Moore and Jennifer Seidenberg; Law Offices of Babak Naficy and Babak Naficy, Eisenberg and Hancock, LLP, William N. Hancock and Jon B. Eisenberg; McCormick, Kidman & Behrens, LLP, Russell G. Behrens and David D. Boyer; Remy, Thomas, Moose and Manley, LLP, James G. Moose and Laura M. Harris

For Appellee:   Edmund G. Brown, Jr., Attorney General, Janet Gaard, Chief Assistant Attorney General, Mary E. Hackenbracht, Senior Assistant Attorney General, Marilyn H. Levin and Deborah A. Wordham, Deputy Attorneys General

People v. Branner, No. C059288

Conviction of defendant for possession of drugs and a firearm is affirmed as the good faith exception to the exclusionary rule applies and the evidence obtained by virtue of a search incident to arrest may not be suppressed despite the retroactive applicability of Gant to this case.   

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Appellate Information

Filed December 17, 2009

Judges

Opinion by Judge Robie

Counsel
For Appellant:   Michele A. Douglass

For Appellee:   Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, David A. Rhodes, Supervising Deputy Attorney General, Darren K. Indermill, Deputy Attorney General

People v. Hernandez, No. D053807

Trial court's sentencing of a defendant to 50 years to life, plus a consecutive 8-year term after the jury convicted him of sodomy and rape and found true the special allegations that he committed the crimes during the commission of a burglary with the intent to commit a sex crime and personally used a dangerous and deadly weapon is affirmed where: 1) it was unnecessary for the court to submit the question of reasonable belief to the jury as there is no substantial evidence in the case to support defendant's argument that he reasonably relied on what he claimed to be the victim's equivocal conduct to form the basis of his mistaken belief that she consented to the sexual assault; and 2) the burglary is the predicate act or aggravating circumstance that triggered the life sentence under section 667.61(a)(d)(4), and, under well-established legal principles, the jury was not required to unanimously agree on the specific sex offense or offenses that were the object of his intent when he entered the victim's residence.      

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Appellate Information

Filed December 17, 2009

Judges

Opinion by Judge McIntyre

Counsel
For Appellant:   Kurt David Hermansen

For Appellee:   Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Chandra E. Appell and Marcella McLaughlin, Deputy Attorneys General

In re A.S., No. D054951

Court of appeals' orders terminating a father's parental rights to his children and summarily denying his petition for modification under Welfare and Inst. Code section 388 is affirmed where: 1) the court did not abuse its discretion when it denied his request for an evidentiary hearing on his section 388 petition for modification as he did not state he was currently unable to provide the children a stable, safe, permanent placement; 2) it did not violate the father's due process rights when it terminated his parental rights without making an initial finding that his acts or omissions brought his children within any of the descriptions set forth in section 300; 3) a biological father has no right to an express finding of unfitness or detriment before the court may terminate his parental rights; and 4) as required under section 366.26(c)(1), the court made an adequate, previous detriment finding as to the father.   

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Appellate Information

Filed December 17, 2009

Judges

Opinion by Judge Huffman

Counsel
For Appellant:   Patti L. Dikes

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

People v. Saleem, No. B204646

Defendant's conviction for possession of body armor by a person previously convicted of a violent felony, with prior serious felony and prior prison term findings, is reversed where: 1) Penal Code section 12370 must be construed to contain a knowledge element and the prosecution had to prove that defendant knew, or reasonably should have known, the body vest in his possession had characteristics making it illegal under section 12370; and 2) section 12370 is unconstitutionally void for vagueness because it does not provide fair notice of which protective body vests constitute the body armor made illegal by the statute.     

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Appellate Information

Filed December 17, 2009

Judges

Opinion by Judge Klein

Counsel
For Appellant:   Gerald Peters

For Appellee:   Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Roberta L. Davis, Deputy Attorneys General

Derick B. Sup. Ct., No. D055446

A juvenile defendant's petition for a writ of prohibition to bar the juvenile court from imposing a Fourth Amendment waiver condition is granted and the condition vacated as a juvenile court does not have the authority to impose a Fourth Amendment waiver as a condition of informal supervision under Welfare and Inst. Code sections 654 and 654.2.    

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Appellate Information

Filed December 11, 2009

Judges

Opinion by Judge Huffman

Counsel
For Appellant:   Steven J. Carroll, Public Defender and Jo Pastore, Deputy Public Defender

For Appellee:   Bonnie M. Dumanis, District Attorney and James E. Pitts, Deputy District Attorney

Blue Cross of Ca., Inc. v. Sup. Ct., No. B215035

In an action arising out of a lawsuit filed by a city attorney against a health insurer and others concerning coverage rescission practices, defendants' petition for a writ of mandate to reverse trial court's ruling denying their demurrer to the complaint is denied as the California Department of Managed Health Care's regulatory and enforcement authority does not preclude the city attorney form pursuing the unfair competition and false advertising claims. 

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Appellate Information

Filed December 15, 2009

Judges

Opinion by Judge Rothschild

Counsel
For Appellant:   Morgan, Lewis & Bockius, Richard S. Odom, Kathleen A. Waters, Thomas M. Peterson and Molly Moriarty Lane

For Appellee:   Rockard J. Delgadillo, City Attorney, Jeffrey B. Isaacs, Chief Assistant City Attorney, James W. Colbert, III, and Anthony M. Miera, Assistant City Attorneys

In re Vioxx Class Cases, No. B216521

In an action against Merck, the manufacturer and marketer of Vioxx, seeking recovery for the difference in price between what the plaintiffs paid and what they would have paid for a safer, equally effective, pain reliever, trial court's denial of plaintiffs' motion for certification of a class action is affirmed as the decision is consistent with Tobacco II and is supported by substantial evidence where: 1) trial court did not err in concluding the individual plaintiffs' claims were not typical of the claims of the TPPs; 2) the trial court did not err in concluding that a generic version of the drug was not a valid comparator on a class-wide basis; and 3) because the trial court concluded, on the evidence, that the issue of a proper comparator was a patient-specific issue, incorporating the patient's medical history, treatment needs, and drug interactions, it properly concluded that restitution could not be calculated on a class-wide basis. 

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Appellate Information

Filed December 15, 2009

Judges

Opinion by Judge Croskey

Counsel
For Appellant:   Hagens Berman Sobol Shapiro, Steve W. Berman, Craig R. Spiegel and Elaine T. Byszewski

For Appellee:   O'Melveny & Myers, Richard B. Goetz and Charles C. Lifland

Walton v. Mueller, No. H034058

In an action against a judgment creditor to enforce an alleged settlement, alleging that the parties reached an agreement to fully satisfy the $40,000 judgment by paying the defendant $15,000, trial court's finding that no settlement agreement was ever reached is affirmed as, regardless of whether an agreement was reached, section 664.6 does not apply after a judgment has become final in an ordinary civil action because at that point, litigation is no longer pending as expressly contemplated by the statute.     

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Appellate Information

Filed December 15, 2009

Judges

Opinion by Judge Duffy

Counsel
For Appellant:   Robert J. Yorio, Christopher P. Grewe, Carr & Ferrell

For Appellee:   Timothy J. Walton, Law Offices of Timothy Walton

McCoy v. Gustafson, No. H030724

In an action by homeowners against current and former owners of a laundry property alleging that oil flowing down from the laundry contaminated plaintiffs' property, jury verdict in favor of plaintiffs is reversed where: 1) trial court should have entered judgment in favor of the defendants based on the special verdict as it established the statute of limitations defense; 2) based on the lack of evidence at trial that the contamination of the downhill property is reasonably abatable, the jury could not have found otherwise, and this failure of proof did not result from any erroneous ruling by the trial court in connection with granting summary adjudication denying plaintiff's motion to amend the complaint, or limiting the expert testimony presented by plaintiff; and 3) trial court erred in granting the motion for new trial and denying the motion for judgment notwithstanding the verdict.   

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Appellate Information

Filed December 15, 2009

Judges

Opinion by Judge Rushing

Counsel
For Appellant:   Kathleen P. Clack

For Appellee:   Musick, Peeler & Garrett, Gary L. Wollberg, Timothy J. Daley

In proceedings arising from three citations by Cal-OSHA concerning unsafe practices regarding metal embossing machines and imposition of $25,600 in fines, plaintiff's petition for writ of administrative mandate challenging a decision by defendant-Board denying plaintiff's request for reconsideration of the dismissal of its appeals is affirmed where: 1) the Board did not exceed its powers in denying reconsideration and petitioner's claim that only a three-member panel can act as the Board is rejected; and 2) because citations are critical to proceedings before the Board, there was no error in the Board's ruling that plaintiff's failure to provide the citations was fatal to its appeals.     

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Appellate Information

Filed December 14, 2009

Judges

Opinion by Judge Manella

Counsel
For Appellant:   Atkinson, Andelson, Loya, Ruud & Romo, Eugene F. McMenamin and Jennifer D. Cantrell

For Appellee:   J. Jeffrey Mojcher, Chief Counsel, and Heidi B. Smith, Industrial Relations Counsel III

People v. Copass, No. B211281

Conviction of defendant for evading a police officer with a willful disregard for the safety of others and driving with a suspended or revoked license is affirmed where, although under the relevant statutes an officer must activate a red light when in pursuit of a traffic offender who attempts to flee, the officer may deactivate his red light during the period he momentarily loses sight of the offender. 

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Appellate Information

Filed December 14, 2009

Judges

Opinion by Judge Gilbert

Counsel
For Appellant:   Law Office of David Andreasen, David A. Andreasen

For Appellee:   Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Robert S. Henry, Deputy Attorney General

Am. States Ins. Co. v. Progressive Cas. Ins. Co., No. C058641

In plaintiff's action against defendant-insurer seeking a defense on behalf of its insureds in the underlying accident between a trucker and a pedestrian at a construction site, summary judgment and a stipulated judgment that concluded, as a matter of law, that the trucker's insurers did not owe a duty to defend the developer/general contractor/grading contractor under any vicarious liability theory is reversed where: 1) an omnibus clause may make a person or entity that is potentially liable under the peculiar risk doctrine an "uninsured," and thereby entitled to a defense pursuant to the insurance policy; and 2) under the peculiar risk doctrine, one may be held vicariously liable if he hires an independent contractor to do work that is likely to create a peculiar risk of harm to others unless special precautions are taken. 

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Appellate Information

Filed December 14, 2009

Judges

Opinion by Judge Butz

Counsel
For Appellant:   Law Offices of William J. Diffenderfer and Lisa A. Pan; Lombardi, Loper & Conant, Ralph A. Lombardi and Lori A. Sebransky

For Appellee:  Coddington, Hicks & Danforth, Randolph S. Hicks and Andrew P. Collier, McNulty & Saacke and Charles F. Saacke

Denial of plaintiff's petitions for writ of mandate directing defendants to set aside a 2001 County General Plan Amendment (GPA) that alters the definition of "net acreage" for failure to prepare an environmental impact report (EIR) is reversed in part and affirmed in part where: 1) substantial evidence supports a finding that the GPA could have a significant impact on the environment, and therefore, the County should have prepared an EIR; and 2) in all other respects, the orders of the trial court denying the writs of mandate are affirmed. 

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Appellate Information

Filed December 14, 2009

Judges

Opinion by Judge Miller

Counsel
For Appellant:    Newmeyer & Dillion, Charles S. Krolikowski; Law Offices of James D. Bassage and James D. Bassage

For Appellee:   Liebersbach, Mohun, Carney & Reed, James S. Reed, Richard W. Liebersbach; Paul N. Bruce, County Counsel, and Randy Keller, Deputy County Counsel

In forfeiture proceedings related to $10,153.38 seized by police at the time of defendant's arrest for drug related crimes, trial court's order of forfeiture is reversed and remanded as, construing the forfeiture statute strictly, the People's failure to try the forfeiture proceeding in conjunction with the underlying criminal case precluded entry of an order of forfeiture.   

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Appellate Information

Filed December 11, 2009

Judges

Opinion by Judge Klein

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

For Appellee:   Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Mary Sanchez, Deputy Attorneys General

In re Masoner, No. B218150

In an appeal of an order granting a prisoner's petition for a writ of habeas relief after governor Schwarzenegger reversed the Board of Parole Hearings' granting prisoner parole, the order of the superior court is affirmed where: 1) the superior court's order reinstating the Board's decision does not divest the governor of his right to review the Board's parole decisions; 2) the superior court's order did not grant relief beyond the process due; 3) the superior court's order did not violate the separation of powers doctrine; and 4) allowing the governor an unlimited number of reviews of the Board's parole decision would violate a prisoner's due process rights and render the writ of habeas corpus meaningless. 

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Appellate Information

Filed December 11, 2009

Judges

Opinion by Judge Kitching

Counsel
For Appellant:   Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Assistant Attorney General, Heather Bushman and Kim Aarons, Deputy Attorneys General

For Appellee:   Daniel Broderick, Federal Defender, Monica Knox, Assistant Federal Defender

Balian v. Balian, No. B214434

Probate court's order granting a declaratory relief petition brought by a trust beneficiary to determine that a proposed petition to modify an irrevocable trust is not a contest is affirmed as the proposed modification petition explicitly states that it is being pursued under section 15409 and as such, it does not violate a no contest clause.     

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Appellate Information

Filed December 11, 2009

Judges

Opinion by Judge Turner

Counsel
For Appellant:   Lurie, Zepeda, Schmalz & Hogan, M. Damien Holcomb and Steven L. Hogan; Cutugno & Rust, Richard N. Rust

For Appellee:  Schomer Law, Scott P. Schomer; Matthew W. Goldsby

People v. Limon, No. F056907

Trial court's denial of defendant's motion to vacate a 1988 conviction for marijuana related crimes, resulting in his deportation from the US in 1995 where he returned two years later illegally, is affirmed where: 1) defendant entered his guilty pleas with advisement by the court of the possible immigration consequences; and 2) since the court gave a proper alien status advisement, defendant's remaining claims are not wrongs encompassed by the scope of Penal Code section 1016.5. 

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Appellate Information

Filed December 11, 2009

Judges

Opinion by Judge Gomes

Counsel
For Appellant:   Law Offices of Brian D. Lerner, Brian D. Lerner and Christopher A. Reed

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. Butler, No. S068230

Defendant's conviction and death sentence for the first degree murder of a fellow jail inmate, while awaiting trial for the murder of two college students, is reversed where defendant's Sixth Amendment right to represent himself at trial was denied as the trial court erroneously decided that defendant could not adequately represent himself because of jail restrictions resulting from his disciplinary infractions, and Faretta and its progeny require reversal of the judgment in its entirety.    

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Appellate Information
Appeal from Sacramento County Super. Ct. No. 96F00389

Filed December 11, 2009

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

Opinion by Corrigan, J.

Counsel
For Appellant:  Lynne S. Coffin and Michael J. Hersek, State Public Defenders, Jay Colangelo, Assistant State Public Defender, Jessica K. McGuire and Caroline Lange, Deputy State Public Defenders

For Appellee:  Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Jason C. Tran, Deputy Attorneys General

People v. O'Neal, No. B209612

In an administrative action brought by the Commissioner of Corporations against defendant for the offer and sale of unqualified, not-exempt securities, and fraud in the offer and sale of securities, trial court's judgment is affirmed where there is no limitation that the Commissioner may seek restitution only on behalf of those who were in privity with defendant, and as such, the Commissioner may seek restitution on behalf of any person injured by the violation. 

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Appellate Information

Filed December 9, 2009

Judges

Opinion by Judge Croskey

Counsel
For Appellant:   Collins & Bellenghi and Michael J. Collins and Julian B. Bellenghi

For Appellee:   Preston DuFauchard, Alan S. Weinger, and Uche L. Enenwali

Golden Drugs Co., Inc. v. Maxwell-Jolly, No. C058178

In mandamus proceedings challenging the termination of petitioner's Medi-Cal provisional provider license by the director of the Department of Health Care Services, specifically disputing that it allowed a pharmacy technician to dispense medication without direct supervision and control of a pharmacist, denial of plaintiff's petition is affirmed where: 1) plaintiff failed to show a basis for consideration of extra-record evidence; 2) the agency's decision was not devoid of evidentiary support; 3) plaintiff forfeited its due process argument for failure to provide an adequate legal and factual analysis.     

Read Golden Drugs Co., Inc. v. Maxwell-Jolly, No. C058178 [HTML]

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Appellate Information

Filed December 9, 2009

Judges

Opinion by Judge Sims

Counsel
For Appellant:   The Altman Group and Bryan C. Altman

For Appellee:   Edmund G. Brown Jr., Attorney General, Douglas M. Press, Assistant Attorney General, Julie Weng-Gutierrez and Michael V. Hammang, Deputy Attorneys General

George v. California Unemployment Ins. Appeals Bd., No. F055385

In plaintiff's employment discrimination and retaliation suit against defendant-agency for being suspended as an administrative law judge on three occasions subsequent to her filing a charge with the Department of Fair Employment and Housing alleging that travel assignments were made discriminatorily, judgment in favor of plaintiff is affirmed where: 1) the doctrine of res judicata does not preclude a state employee from pursuing both internal administrative civil service remedies and those available under the Fair Employment Housing Act; 2) although the doctrine of collateral estoppel may act to preclude a retaliation claim if issues decided in the administrative action eliminate a necessary element of the employee's case, in this case, the administrative agency's findings do not eliminate a necessary element of plaintiff's retaliation action; and 3) there was sufficient evidence to support the jury's verdict. 

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Appellate Information

Filed December 9, 2009

Judges

Opinion by Judge Wiseman

Counsel
For Appellant:   Edmund G. Brown, Jr., Attorney General, Alicia M. B. Fowler, Assistant Attorney General, Vincent J. Scally, Jr., Noreen P. Skelly, Deputy Attorneys General

For Appellee:   Herron & Herron, Joseph Clapp and J. Wynne Herron

In re S.C., No. A123371

Juvenile court's determination that the juvenile-defendant be a ward of the court and placed on probation after concluding that he was in possession of a switchblade knife is affirmed as Penal Code section 653k is violated any time a person carries a switchblade knife on his or her person, regardless of where the possession occurs. 

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Appellate Information

Filed December 8, 2009

Judges

Opinion by Judge Margulies

Counsel
For Appellant:   Rita L. Swenor

For Appellee:   Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Martin S. Kaye and Michael E. Banister, Deputy Attorneys General

Howe v. Bank of America N.A., No. G040669

In plaintiffs' putative class action suit against defendant and other entities claiming discrimination under the Unruh Civil Rights Act by requiring that U.S. citizens provide a Social Security number to open a particular type of credit card account, while allowing foreign nationals to open such accounts with only alternative forms of identification, trial court's order sustaining defendant's demurrer to the complaint is affirmed where: 1) as a matter of law, Bank of America did not act arbitrarily as 31 C.F.R. section 103.121, which was enacted pursuant to the legislation commonly known as The USA Patriotic Act, expressly requires defendant to obtain Social Security numbers from U.S. citizens; and 2) because defendant's credit card program merely applied federally imposed minimum identification standards to all applicants for its accounts, the practice bears a reasonable relationship to Bank of America's commercial objectives and was consequently valid on its face.     

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Appellate Information

Filed December 9, 2009

Judges

Opinion by Judge Bedsworth

Counsel
For Appellant:   The Rava Law Firm and Alfred G. Rava

For Appellee:   Morrison & Foerster, Arturo J. Gonzalez, William L. Stern and Claudia M. Vetesi

People v. Cason, No. E047440

Defendant's conviction for pimping and pandering while on probation for two prior felonies is affirmed as defendant's claim that the two witnesses were both accomplices and co-conspirators whose testimony was worthless is rejected.     

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Appellate Information

Filed December 7, 2009

Judges

Opinion by Judge Ramirez

Counsel
For Appellant:   Marilee Marshall

For Appellee:   Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General

People v. Ervine, No. S054372

On automatic appeal from a conviction and imposition of a death sentence on defendant for first degree murder of a deputy sheriff and the attempted willful, deliberate and premeditated murder of a commander and two other deputies is affirmed in its entirety and all of defendant's pretrial, guilt phase, and penalty phase issues are rejected as they are without merit.     

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Appellate Information
Appeal from Sacramento County Super. Ct. No. 96F00389

Filed December 7, 2009

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

Opinion by Baxter, J.

Counsel
For Appellant:  Michael J. Hersek State Public Defender, under appointment by the Supreme Court, and Douglas Ward, Deputy State Public Defender

For Appellee:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French, Patrick J. Whalen and Laura Wetzel Simpton, Deputy Attorneys General

Lopez v. Daimler Chrysler Corp., No. C058592

Trial court's reduction of the Calfornia Department of Health Care Services' (Department) lien for medical expenses paid to $63,216.69 from $547,680.08 the Department had paid for plaintiff's medical expenses arising from injuries suffered in a rear-end freeway collision is affirmed as the trial court did not abuse its discretion in acting within the statutory scheme and determined the Department's lien based on the evidence before it.     

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Appellate Information

Filed December 4, 2009

Judges

Opinion by Judge Raye

Counsel
For Appellant:   Edmund G. Brown, Jr., Attorney General, Douglas M. Press, Senior Assistant Attorney General, Julie Weng-Gutierrez, Supervising Deputy Attorney General, and Niromi L. Wijewantha, Deputy Attorney General

For Appellee:  Wilcoxen, Callahan, Montgomery & Deacon, Daniel E. Wilcoxen and Martha A. Taylor

In plaintiff's suit against defendant-general contractor on a public works project, and its surety and bonding companies for monies owed at the end of the project, trial court's award of $150,000 in attorney fees to the defendants is affirmed as the trial court correctly concluded that defendant had not violated the applicable prompt payment statutes.     

Read Martin Bros. Constr., Inc. v. Thompson Pacific Constr., Inc., No. C058944 [HTML]

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Appellate Information

Filed December 4, 2009

Judges

Opinion by Judge Cantil-Sakauye

Counsel
For Appellant:   Law Office of Anthony T. Caso, Anthony T. Caso; Nageley Meredith & Miller, Inc., Gregory Alan Meredith

For Appellee:   Solan & Park, Kevin M. Solan, William L. Jacobson

Keler v. Tuesday Morning, Inc., No. B210787

Grant of defendant's motion to decertify the class in plaintiffs' suit alleging that the defendant-employer failed to pay overtime wage is affirmed as substantial evidence supports the trial court's conclusion that the individualized issues of liability and damages will predominate over issues common to the class if the overtime claims are tried as a class action.     

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Appellate Information

Filed December 4, 2009

Judges

Opinion by Judge Coffee

Counsel
For Appellant:   Mower, Carreon & Desai, Aashish Y. Desai

For Appellee:   Fulbright and Jaworski, Robert M. Dawson, Andrea M. Valdez

In plaintiff's challenge to the Board's new policy of charging established monthly base rates to parcels with existing utility connections, regardless of whether the owner was actually using the district's services, trial court's judgment in favor of the water district is affirmed as, a minimum charge imposed on parcels with connections to a water district's utility systems for the basic cost of providing water or sewer service, regardless of actual use, is a charge for an immediately available property-related water or sewer service as defined in article XIII D section 6(b)(4), and consequently does not require ballot approval by affected owners. 

Read Paland v. Brooktrails Township Cmty. Serv. Dist. Bd. of Directors, No. A122630 [HTML]

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Appellate Information

Filed December 3, 2009

Judges

Opinion by Judge Bruiniers

Counsel
For Appellant:   David Paland, in pro. per

For Appellee:   Christopher J. Neary

Schoenberg v. County of Los Angeles, No. B211754

In plaintiff's action against the county to reduce the tax assessment on his residential property, dismissal of the action is affirmed where: 1) plaintiff's claim that the Appeals Board failed to asses land and improvements separately is without factual foundation; 2) plaintiff had no authority to limit the jurisdiction of the Appeals Board to a reassessment of only the value of the land; 3) the Appeals Board was permitted on its own initiative to reassess the value of the improvements on the land; 4) a total reappraisal was necessary to fulfill the Appeals Board's mandate to equalize property values; and 5) plaintiff's exclusive remedy was not a petition for a writ of mandate against the Appeals Board, but rather a complaint seeking a refund of taxes, a remedy plaintiff belatedly pursued against the county after it was barred by the statute of limitations.     

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Appellate Information

Filed December 3, 2009

Judges

Opinion by Judge Boren

Counsel
For Appellant:   Burris, Schoenberg & Walden and E. Randol Schoenberg, in pro. per

For Appellee:  Robert E. Kalunian, Acting County Counsel, Albert Ramseyer, Principal Deputy County Counsel

In re J.H., No. B212635

Conviction of defendant-minor for arson after defendant and his friends lit a firecracker in a wooded area and caused a fire that burned five acres of forest land is affirmed but modified where: 1) the juvenile court misapplied the principles stated in Atkins and there was no evidence that the act that caused the fire was done with the requisite mental state, i.e., maliciously; and 2) the trial court should have found the minor guilty of the lesser included offense of unlawfully causing a fire. 

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Appellate Information

Filed December 3, 2009

Judges

Opinion by Judge Mohr

Counsel
For Appellant:   Holly Jackson

For Appellee:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, and Robert M. Snider, Deputy Attorney General

Bermudez v. Fulton Auto Depot, LLC, No. C058356

In plaintiffs' case against defendant automobile dealer and a credit union under the Automobile Sales Finance Act (ASFA) arising from plaintiffs' purchase of a vehicle from defendant, judgment in favor of defendants is affirmed as the dealer's slight overestimation of the vehicle license fees by $2 dollars and charging the plaintiffs $58.25 for a smog check and certificates but failing to submit the vehicle to a smog check until four months later, do not entitle the plaintiffs to remedies under the ASFA.     

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Appellate Information

Filed December 3, 2009

Judges

Opinion by Judge Nicholson

Counsel
For Appellant:   Law Offices of Robert G. Padrick and Robert G. Padrick

For Appellee:  Law Office of John Dumas Rochelle and John Dumas Rochelle

Rudnick v. Rudnick, No. F056587

In an action by minority interest-holding beneficiaries opposing trustee's sale of the estate's principal asset, probate court's order awarding approximately $226,000 in attorney's fees and costs to the trustee and ordering the fees charged against the minority interest-holding beneficiaries' future trust distributions is affirmed as the probate court had the equitable power to make the attorney's fees award.   

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Appellate Information

Filed December 2, 2009

Judges

Opinion by Judge Levy

Counsel
For Appellant:  Law Offices of Ralph B. Wegis, Ralph B. Wegis, Michael J. Stump; Daniel Rudnick; and Barry Rosenberg

For Appellee:  Steptoe & Johnson, Richard G. Reinis, Rebecca Edelson; Lynch & Lynch, Craig M. Lynch; McCormick, Barstow, Sheppard, Wayte & Carruth, D. Greg Durbin and Todd W. Baxter

Tarrant Bell Prop., LLC. v. Sup. Ct. , No. A125496

In a case brought by residents of a mobile home park against the park owners for failing to properly maintain common areas and facilities and for being subjected to substandard living conditions, trial court's denial of defendant's motion to compel judicial reference is affirmed as a trial court has the discretion to refuse to enforce a reference agreement under the circumstances in the case, or related considerations of judicial economy, and the court did not abuse that discretion.   

Read Tarrant Bell Prop., LLC. v. Sup. Ct. , No. A125496 [HTML]

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Appellate Information

Filed December 2, 2009

Judges

Opinion by Judge Sepulveda

Counsel
For Appellant:   Hart King & Coldren, Robert S. Coldren, Robert G. Williamson, Jr. Daniel T. Rudderow; Carlson Calladine & Peterson LLP, Asmin Kishore Desai

For Appellee:   Endeman, Lincoln, Turek & Heater, James Allen, Henry E. Heater, Linda B. Reich

In re Gomez, No. G042807

Petition for a writ of supersedeas by the California Department of Corrections and Rehabilitation, following grant of defendant's petition for habeas relief directing the Department to grant additional post-sentence conduct credit and to recalculate defendant's release date, is denied as Penal Code section 2933.1(a) has no effect when the only violent felony conviction at issue is stayed pursuant to section 654.   

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Appellate Information

Filed December 2, 2009

Judges

Opinion by Judge Ikola

Counsel
For Appellant:   Edmund G. Brown Jr., Attorney General, Julie L. Garland, Assistant Attorney General, and Heather Bushman and Gregory J. Marcot, Deputy Attorneys General

For Appellee:   Ronald G. Brower, John D. Barnett, and Mark W. Fredrick

In re Marriage of Richardson, No. B214768

Trial court's child support portion of the judgment in the parties' marital dissolution action, on the ground that it lacked jurisdiction over child support because the wife and the child had been residing in Japan since 2007, is reversed and remanded as the trial court's exclusive jurisdiction to order support was unaffected by the child's home state.   

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Appellate Information

Filed December 2, 2009

Judges

Opinion by Judge Epstein

Counsel
For Appellant:   Marshall Suzuki Law Group, Edward S. Miyauchi and Tokiko Yasuda

For Appellee:   N/A

Schellinger Brothers v. City of Sebastopol, No. A122972

Trial court's decision not to interject itself into the still on-going process of preparing an EIR concerning plaintiff-developer's proposal to develop single-housing and commercial structures is affirmed where: 1) developer's contention that the one-year time limit for certifying an EIR established by CEQA section 21151.5 constitutes an iron-clad, one-size-fits-all rule that permits of no exception is rejected; 2) Gov. Code section 65589.5 cannot be used to halt the decision-making process specified by CEQA that is still on-going; and 3) developer's active participation in that process for more than three years, which included numerous changes in the size and composition of the project, after the date it now claims the city lost its discretionary amounts to laches.   

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Appellate Information

Filed December 2, 2009

Judges

Opinion by Judge Richman

Counsel
For Appellant:   Bingham McCutchen LLP, Geoffrey L. Robinson, Marie A. Cooper, Sean R. Marciniak

For Appellee:   Meyers, Nave, Riback, Silver & Wilson, Julia L. Bond, Edward Grutzmacher; McLaughlin & Hendrickson, Larry McLaughlin

People v. Fulton, No. C058389

Trial court's conviction of defendant for evading an officer with willful or wanton disregard and driving on a suspended license is affirmed as the defendant needed a certificate of probable cause to challenge the validity of his negotiated plea to the prior prison term allegation.    

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Appellate Information

Filed December 2, 2009

Judges

Opinion by Judge Sims

Counsel
For Appellant:   Scott N. Cameron

For Appellee:  Edmund G. Brown, Attorney General, Dane R. Gillette, Michael Farrell, Assistant Attorneys General, Charles A. French and Tia M. Coronado, Deputy Attorneys General. 

Prediwave Corp. v. Simpson Thacher & Bartlett LLP., No. H033422

In plaintiff's suit against the defendant-law firm and other attorneys, who had previously represented plaintiff and its former president and CEO, trial court's grant of defendants' motion to strike under the anti-SLAPP statute is reversed as, the trial court erred in determining that this was a SLAPP suit subject to a special motion to dismiss as the defendants did not satisfy their threshold burden of demonstrating that the principal thrust of any of the complaint's causes of action was activity protected by the anti-SLAPP statute.   

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Appellate Information

Filed December 2, 2009

Judges

Opinion by Judge Elia

Counsel
For Appellant:   Squire, Sanders & Dempsey and Douglas J. Rovens, Steven A. Lamb, Gabriel Colwell and Horvitz & Levy and Jeremy Rosen

For Appellee:   Brad D. Brian, Bradley S. Phillips and Aimee Feinberg

People v. Gray, No. C056083

In a conviction of defendant for second-degree murder, defendant's petition for habeas relief is issued and allow a notice of appeal in the limited case of criminal actions where: 1) there is no legal basis upon which to recall the September 2007 remittitur, and it would create the peculiar result of having three appeals from the same judgment; and 2) a deputy clerk assigned to a courtroom is part of the clerk's office, and thus, absent a valid local rule of court to the contrary, a notice of appeal can be filed with a courtroom clerk, not just with the appeals unit of the clerk's office.   

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Appellate Information

Filed December 2, 2009

Judges

Opinion by Judge Scotland

Counsel
For Appellant:   Scott Concklin

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

Yarick v. Pacificare of California, No. F057032

In plaintiff-estate's suit against the defendant health care providers and health care benefits providers alleging that the events resulting in the death happened because of the financial pressures and incentive that arose from the care providers' contracts with the defendants, trial court's order sustaining defendants' demurrer is affirmed as the federal statute expressly preempts applications of state laws where standards for Medicare Advantage plans are established pursuant to the Medicare law, and to the extent the plaintiff seeks to allege causes of action based on state common law concepts of duty independent of the Health and Safety Code provisions cited, those common law causes of action are preempted.   

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Appellate Information

Filed December 1, 2009

Judges

Opinion by Judge Vartabedian

Counsel
For Appellant:   Balisok & Associates, Inc., Russell S. Balisok and Steven C. Wilheim

For Appellee:   Dorsey & Whitney, Steven D. Allison and Christy L. Bertram

Buie v. Neighbors, No. D053925

In a marital dissolution action, family court's ruling that a Porche automobile purchased by the wife during the marriage with her separate property funds and gifted to her then-husband was transmuted to his separate property by virtue of the gift is reversed and remanded where: 1) family court erred in concluding that the Porche is the husband's separate property; and 2) plaintiff is entitled to reimbursement for the contribution of her separate property funds to buy the Porche.   

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Appellate Information

Filed December 1, 2009

Judges

Opinion by Judge Irion

Counsel
For Appellant:   Dunne & Dunne, James P. Dunne and Anthony J. Dunne

For Appellee:   N/A

Guessous v. Chrome Hearts, LLC, No. B212074

In plaintiff's suit against the defendant for infringement of jewelry designs, trademarks and copyrights, trial court's decision denying plaintiff's motion to strike defendant's complaint under the anti-SLAPP statute is affirmed as the filing of a lawsuit in a foreign country is not protected activity under the United States or California Constitutions as to implicate the statute.   

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Appellate Information

Filed December 1, 2009

Judges

Opinion by Judge Todd

Counsel
For Appellant:  Blakely Law Group, Brent H. Blakely and Cindy Chan

For Appellee:   Murphy Rosen & Meylan, Robert L. Meylan and Jodi M. Newberry

In re R.S., No. A124021

Order of the juvenile court terminating parents' parental rights is reversed where: 1) the juvenile court erred in holding the section 366.26 hearing and in issuing orders that terminated parental rights and granting a request by the minor's foster parents to be designated as prospective adoptive parents, because in doing so the court impermissibly interfered with a final, voluntary relinquishment the parents had made to State Adoptions; and 2) it was unnecessary to address mother's contention that the court violated notice requirements of the Indian Child Welfare Act because any defect in the notice provided to Indian tribes is rendered moot by the parents' voluntary relinquishment to State Adoptions.  

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Appellate Information

Filed November 30, 2009

Judges

Opinion by Judge Marchiano

Counsel
For Appellant:   Donna L. Hall and Valerie E. Sopher

For Appellee: Dohn R. Henion, County Counsel and Ian W. Trueblood, Deputy County Counsel

Barbosa v. Impco Tech., Inc. , No. G041070

Trial court's grant of defendant-employer's motion for nonsuit in plaintiff's wrongful termination suit is reversed and remanded as the public policy in favor of the employer's duty to pay overtime wages protects an employee from termination for making a good faith but mistaken claim to overtime.     

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Appellate Information

Filed November 30, 2009

Judges

Opinion by Judge Sills

Counsel
For Appellant:  Gould & Associates, Aarin A. Zeif and Michael A. Gould

For Appellee:  Brian G. Saylin and Marvin D. Mayer

Bates v. Rubio's Rest., Inc., No. G041231

In a $7.5 million settlement agreement arising from a wage and hour class action lawsuit, trial court judge's order vacating an earlier ruling that the 140 late-identified class members should receive notice and then recusing himself from any further proceedings in the matter is affirmed where: 1) when a judge is not disqualified at the time of making the first ruling, the first ruling does not become void just because the judge later disqualifies himself in the interests of justice and encapsulates both rulings in one minute order; and 2) defendant's argument that the judge's order vacating the prior ruling about the 140 late-identified class members must be reversed is rejected.     

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Appellate Information

Filed November 30, 2009

Judges

Opinion by Judge Moore

Counsel
For Appellant:   Irell & Manella, Gregory R. Smith, Andra Barmash Greene and Julie M. Davis

For Appellee:  Righetti Law Firm, Matthew Righetti, John Glugoski; McInerney & Jones, Kevin J. McInerney, Kelly McInerney and Charles A. Jones

Costco Wholesale Corp. v. Sup. Ct., No. S163335

In a class action suit brought by employees against the Costco Wholesale Corporation alleging the corporation misclassified some of its managers as exempt employees and therefore failed to pay them overtime wages, trial court's directions ordering a referee to conduct an in camera review of an opinion letter sent by outside counsel to Costco and allowing the referee to redact the letter to conceal that portion he believed to be privileged, and requiring Costco to disclose the remainder to the opposing party, is reversed as the trial court's directions and order violated the attorney-client privilege, as well as the statutory prohibition against requiring disclosure of information claimed to be subject to the attorney-client privilege in order to rule on a claim of privilege. 

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Appellate Information
Appeal from Los Angeles County Super. Ct. No. BC29636

Filed November 30, 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:  Seyfarth Shaw, Kenwood C. Youmans, David D. Kadue, Aaron R. Lubeley and Ann H. Qushair

For Appellee:  Hagens Berman Sobol Shapiro, Reed R. Kathrein, Lee M. Gordon, Elaine T. Byszewski, Steve W. Berman; Rehwald Glasner & Chaleff, Rehwald Rameson Lewis & Glasner, Lawrence Glasner, William Rehwald and Daniel Chaleff

Roby v. McKesson Corp. , No. S149752

In plaintiff's wrongful discharge, harassment and discrimination suit against her former employer and supervisor, court of appeal's judgment is reversed where: 1) the Court of Appeal erred in allocating the evidence between the harassment claim and the discrimination claim, and as such, basing on that allocation, it erred in finding insufficient evidence to support the harassment verdict; and 2) although the court of appeal was correct in holding that the $15 million punitive damages award exceeds the federal constitutional limit, it erred in concluding that in this case the appropriate limit is $2 million as, under the test set forth in State Farm, a one-to-one ratio between compensatory and punitive damages is the federal constitutional limit in this case.   

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Appellate Information
Appeal from Yolo County Super. Ct. No. CV01573

Filed November 30, 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:  Howard Rice Nemerovski Canady Falk & Rabkin, Jerome B. Falk, Jr., Linda Q. Foy, Dipanwita Deb Amar, Jason M. Habermeyer; Fitzgerald, Abbott & Beardsley and Sara E. Robertson

For Appellee:  Christopher H. Whelan; The deRubertis Law Firm, David M. deRubertis, David A. Lesser; Pine & Pine, Norman Pine; Riegels Campos & Kenyon and Charity Kenyon

Chatard v. Oveross, No. B213392

Trial court's order directing that its surcharge order upon former trustee be satisfied from her distributive share of the trust estate is affirmed as the beneficiary of a spendthrift trust who also acts a trustee and commits a breach of trust causing financial harm to the trust can have her interest in the trust estate impounded to satisfy a claim arising from her misfeasance. 

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Appellate Information

Filed November 30, 2009

Judges

Opinion by Judge Willhite

Counsel
For Appellant:   Panitz & Kossoff and Kenneth W. Kossoff

For Appellee: Berman & Berman and Ronald Berman; Oldman, Cooley, Sallus, Gold, Birnberg & Coleman, Marc L. Sallus and Mary-Felicia Apanius

One Star, Inc. v. Staar Surgical Co., No. B212098

In plaintiff's suit alleging breach of contract, intentional interference with contractual relations, and other claims, trial court's grant of plaintiff's motion for attorney's fees and costs and denial of defendant's motion for same is reversed as, where a defendant withdraws a second Code of Civ. Proc. section 998 settlement offer, the plaintiff's recovery must be measured against defendant's first settlement offer for section 998 purposes. 

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Appellate Information

Filed November 30, 2009

Judges

Opinion by Judge Suzukawa

Counsel
For Appellant:  Scheper Kim & Overland, Diann H. Kim, Annah S. Kim, and William Forman

For Appellee:  Davis Zfaty, Isaac R. Zfaty; Jeffer Mangels Butler & Marmaro, Mark S. Adams, and Monica Vu

Holbert v. Fremont Inv. & Loan, No. C058026

In plaintiff's suit against a financial lender, dismissal of the complaint is affirmed where: 1) defendant was not required to comply with the Home Ownership and Equity Protection Act of 1994 (HOEPA), which applies when the finance charges imposed on a loan exceed a certain threshold; 2) two charges imposed on plaintiff, one to pay off a preexisting debt to another lender and another to satisfy a prepayment penalty on a prior home loan, were not finance charges within the meaning of HOEPA; 3) plaintiff has not established a claim against defendant for unfair business practices; and 4) while plaintiff may have a viable claim against her loan broker for financial elder abuse based on various misrepresentations made during the loan process, she failed to link that claim to defendant, who is as much a victim of the broker's misrepresentations as plaintiff. 

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Appellate Information

Filed November 30, 2009

Judges

Opinion by Judge Hull

Counsel
For Appellant:   Goodman & Associates, Karen M. Goodman and Summer D. Haro

For Appellee:  The Ryan Firm, Timothy M. Ryan and Barry G. Coleman

People v. Dotson, No. C060310

Defendant's conviction for committing a criminal offense while released on bail is reversed and remanded where, although the trial court properly denied defendant's motion to suppress evidence obtained as a result of a vehicle stop, it is unclear from the record whether the prosecution was commenced within applicable limitations periods for the crimes. 

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Appellate Information

Filed November 30, 2009

Judges

Opinion by Judge Nicholson

Counsel
For Appellant:   Torres & Torres and Steven A. Torres

For Appellee:  Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and Joseph M. Cook, Deputy Attorneys General

People v. Zarazua, No. C062268

People's motion to vacate and reconsider an order granting defendant's motion for constructive filing of an appeal is denied as, when a notice of appeal in a criminal case is received by the trial court after the jurisdictional deadline to perfect the appeal, the appellate court may deem the notice of appeal to have been constructively filed in a timely manner if, prior to the deadline, the defendant expressly relied on his trial counsel to file it, but trial counsel neglected to do so.     

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Appellate Information

Filed November 30, 2009

Judges

Opinion by Judge Scotland

Counsel
For Appellant:   Elizabeth M. Campbell

For Appellee:  Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Hokans, Supervising Deputy Attorney General, and Ryan B. McCarroll, Deputy Attorney General