California Case Law: January 2010 Archives
California Case Law - The FindLaw California Supreme Court and Courts of Appeal Opinion Summaries Blog

January 2010 Archives

Robles v. Chalilpoyil, No. H033329

In plaintiffs' wrongful death suit, claiming that a defective wheelchair caused the decedent to burn to death, trial court's denial of defendants' motion to strike plaintiff's complaint under the anti-SLAPP law is affirmed as, plaintiffs' lawsuit did not arise from protected speech or petitioning activity within the meaning of section 425.16     

Read Robles v. Chalilpoyil, No. H033329

Appellate Information

Filed January 26, 2010

Judges

Opinion by Judge Elia

Counsel


For Appellant:  Neil Shapiro

For Appellee:  Carcione Cattermole Dolinski Okimoto Stucky Ukshini Markowitz & Carcione, Joseph W. Carcione, Neal A. Markowitz, Chad E. DeVeaux

In re G.M., No. F057848

Juvenile court's order terminating the parental rights of a mother to two of her children is affirmed as: 1) although evidence of a legal impediment to adoption by an identified prospective adoptive parent is relevant and therefore admissible when a social worker's opinion that a child is likely to be adopted is based in part on the the prospective adoptive patent's willingness to adopt; 2) on the record, the trial court neither barred such evidence nor was compelled to consider whether there was or could be a legal impediment to adoption by the children's prospective adoptive parent in evaluating whether it was likely the children would be adopted.        

Read In re G.M., No. F057848 [PDF]

Appellate Information

Filed January 26, 2010

Judges

Opinion by Judge Levy

Counsel


For Appellant:  Darlene Kelly

For Appellee:   Kevin Briggs, Interim County Counsel, William G. Smith, Deputy County Counsel

Kendall v. Walker, No. A105981

In plaintiffs' suit involving the question of the proper line between the parties' areas of littoral rights for use of the water adjacent to their upland property, summary judgment in favor of the plaintiffs is affirmed where: 1) defendants' motions to amend and supplement the pleadings were properly denied; 2) defendants were barred from raising unpleaded defenses or causes of action in opposition to plaintiffs' motion for summary judgment; and 3) trial court properly determined the littoral rights of the parties in its order granting plaintiffs' summary judgment motion.    

Read Kendall v. Walker, No. A105981 [HTML]

Read Kendall v. Walker, No. A105981 [PDF]

Appellate Information

Filed January 26, 2010

Judges

Opinion by Judge Kline

Counsel


For Appellant:  Miller Starr & Regalia, Scott A. Sommer, Lewis J. Soffer

For Appellee:   Law Office of David R. Fischer, David Randall Fischer

Save the Plastic Bag Coalition v. City of Manhattan Beach, No. B215788

Trial court's order vacating an ordinance and disallowing reenactment pending an environmental impact report is affirmed as an environmental impact report must be prepared given that it can be fairly argued on substantial evidence in the record that the ordinance may have a significant environmental impact.  

Read Save the Plastic Bag Coalition v. City of Manhattan Beach, No. B215788 [HTML]

Read Save the Plastic Bag Coalition v. City of Manhattan Beach, No. B215788 [PDF]

Appellate Information

Filed January 26, 2010

Judges

Opinion by Judge Turner

Counsel


For Appellant:  Robert V. Wadden, Jr., City Attorney

For Appellee:   Stephen L. Joseph

People v. Nero, No. B206799

Conviction of co-defendant for murder is reversed as the trial court's jury instruction was prejudicial error as an aider and abettor may be found guilty of lesser homicide-related offenses than those the actual perpetrator committed.       

Read People v. Nero, No. B206799 [HTML]

Read People v. Nero, No. B206799 [PDF]

Appellate Information

Filed January 26, 2010

Judges

Opinion by Judge Aldrich

Counsel


For Appellant:  Brett Harding Duxbury, Matthew Alger

For Appellee:   Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Yun K. Lee and Corey J. Robins, Deputy Attorneys General

In plaintiff-school district's petition to compel the county and the city and others to increase its allocation of community redevelopment project mitigation payments under Health and Safety Code section 33607.5, judgment in favor of the defendants is reversed and remanded where, as a matter of law, the school district's pass-through payments have been based on erroneous calculation of its percentage share of property taxes, and LAUSD's right to reimbursement has yet to be litigated. 

Read Los Angeles Unified School District v. County of Los Angeles, No. B213703 [HTML]

Read Los Angeles Unified School District v. County of Los Angeles, No. B213703 [PDF]

Appellate Information

Filed January 26, 2010

Judges

Opinion by Judge Suzukawa

Counsel


For Appellant:  Strumwasser & Woocher, Michael J. Strumwasser, Gregory G. Luke, Aparna Sridhar; Los Angeles Unified School District Office of the General Counsel, John F. Walsh, and Gregory L. McNair

For Appellee:  Troutman Sanders, Paul L. Gale, Erik M. Pritchard, Jenece D. Solomon, and Peter R. Lucier; Robert E. Kalunian, Acting County Counsel (Los Angeles), and Thomas M. Tyrell, Principal Deputy County Counsel

State Farm Ins. Co. v. JT's Frames, Inc., No. B215457

In an action wherein plaintiff-insurer sought a declaration that defendant's underlying claims involving unsolicited faxes were not covered by policies as "advertising injury" or "property damage," summary judgment in favor of defendant is affirmed where the claims asserted in the Illinois actions were not covered by the State Farm policies. Also, defendant's appeal from an order denying its motion to quash service of the complaint is rejected as such as order not is not appealable where, as here, the party contesting jurisdiction enters a general appearance and litigates the merits. 

Read State Farm Ins. Co. v. JT's Frames, Inc., No. B215457 [HTML]

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Appellate Information

Filed January 26, 2010

Judges

Opinion by Judge Manella

Counsel


For Appellant:  Law Offices of Ryan G. Richardson, Ryan G. Richardson; Law Offices of Leah Nico and Phillip A. Bock

For Appellee:   Robie & Matthai and James R. Robie, Steven S. Fleischman and David J. Weinman

Arce v. Kaiser Found. Health Plan, Inc., No. B215861

In plaintiff's class action suit under the Unfair Competition Law (UCL) claiming breach of a health plan contract and violation of the Mental Health Parity Act by categorically denying coverage for behavioral therapy and speech therapy to plan members with autism spectrum disorders, trial court's order sustaining defendant's demurrer is reversed and remanded as: 1) there is reasonable possibility that plaintiff can establish the requisite community of interest for a class action suit under the UCL; and 2) resolution of the UCL claim would not require the court to make individualized determinations of medical necessity or to decide complex issues of economic policy or other matters over which an administrative agency has exclusive jurisdiction. 

Read Arce v. Kaiser Found. Health Plan, Inc., No. B215861 [HTML]

Read Arce v. Kaiser Found. Health Plan, Inc., No. B215861 [PDF]

Appellate Information

Filed January 26, 2010

Judges

Opinion by Judge Zelon

Counsel


For Appellant:  Law Offices of Scott C. Glovsky and Scott C. Glovsky

For Appellee:   Epstein Becker & Green, William A. Helvestine, Andrew J. Hefty, Lisa Caccavo and Damian D. Capozzola

People v. Leon, No. B211679

Conviction of defendant for murder and related crimes and sentence to an aggregate prison term of 145 years to life is affirmed for the most part but reversed in part where the evidence was insufficient to show beyond a reasonable doubt that defendant harbored the specific intent to kill the attempted murder victim.  Therefore, conviction for attempted murder is reversed and defendant's sentence is reduced by 40 years.       

Read People v. Leon, No. B211679 [HTML]

Read People v. Leon, No. B211679 [PDF]

Appellate Information

Filed January 26, 2010

Judges

Opinion by Judge Yegan

Counsel


For Appellant:  Sharon M. Jones

For Appellee:   Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steve E. Mercer, J. Michael Lehmann, Deputy Attorneys General

Fire Ins. Exch. v. Sup. Ct., No. E046531

In homeowners' breach of contract and bad faith suit against their insurer, the insurer's petition for writ of mandate is granted as, building a structure that encroaches onto another's property is not an accident even if the owners acted in a good faith but mistaken belief that they were legally entitled to build where they did.  Because their homeowner policy did not provide coverage for non-accidental occurrences, the owners' insurer had no duty to defend when the owners were sued by the adjoining landowner as a result of the encroachment.     

Read Fire Ins. Exch. v. Sup. Ct., No. E046531 [HTML]

Read Fire Ins. Exch. v. Sup. Ct., No. E046531 [PDF]

Appellate Information

Filed January 26, 2010

Judges

Opinion by Judge McKinster

For Appellant:   Horvitz & Levy, Barry R. Levy, Karen M. Bray; Leist Law Group, Jeffrey J. Leist and Eric N. Riezman

For Appellee:   N/A

People v. Hernandez, No. E047219

Trial court's conviction of defendant for DUI and related crimes is affirmed where: 1) the trial court had proper jurisdiction to enter judgment against the defendant; and 2) Penal Code section 1387(a) does not apply to bar the continuation of this case as a misdemeanor prosecution.     

Read People v. Hernandez, No. E047219 [HTML]

Read People v. Hernandez, No. E047219 [PDF]

Appellate Information

Filed January 26, 2010

Judges

Opinion by Judge Ramirez

For Appellant:   Kennedy & Roe, Michael J. Kennedy

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

Pub. Utilities Comm'n v. Sup. Ct., No. B217634

In a wrongful death action arising out of a fatal accident at a railroad crossing, the California Public Utilities Commission's petition for a writ of mandate challenging the trial court's denial of a motion for summary adjudication is granted and the trial court's order denying the motion is set aside in part as decisional law supports a conclusion that a public entity's ability to regulate property it neither owns nor possesses is not equivalent to a public entity having control of the property within the meaning of Gov. Code section 830.     

Read Pub. Utilities Comm'n v. Sup. Ct., No. B217634 [HTML]

Read Pub. Utilities Comm'n v. Sup. Ct., No. B217634 [PDF]

Appellate Information

Filed January 26, 2010

Judges

Opinion by Judge Willhite

For Appellant:   Edmund G. Brown, Jr., Attorney General, James M. Schiavenza, Assistant Attorney General, Richard J. Rojo and Heidi T. Salerno, Deputy Attorneys General

For Appellee:   N/A

People v. Brown, No. B211558

In a prosecution of defendant for possession of a firearm by a felon and drug related crimes, defendant's appeal based on a claim that he was denied his right to bring a motion to withdraw his plea when his retained counsel announced he was unable to make the motion due to a conflict and the trial court refused to appoint new counsel for purposes of the motion is dismissed as defendant failed to obtain a certificate of probable cause as required by Penal Code section 1237.5. 

Read People v. Brown, No. B211558 [HTML]

Read People v. Brown, No. B211558 [PDF]

Appellate Information

Filed January 26, 2010

Judges

Opinion by Judge Epstein

For Appellant:   Richard L. Fitzer

For Appellee:   Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan and Kathy S. Pomerantz, Deputy Attorneys General

People v. Her, No. C058443

Conviction of defendant for murder and attempted murder is affirmed as any error in the instructions with respect to imperfect self defense was harmless beyond a reasonable doubt. 

Read People v. Her, No. C058443 [HTML]

Read People v. Her, No. C058443 [PDF]

Appellate Information

Filed January 26, 2010

Judges

Opinion by Judge Robie

For Appellant:   Stephen Greenberg

For Appellee:   Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General

Ho v. Hsieh, No. B211501

In a judgment creditor's action under California Uniform Commercial Code section 8112 to reach shares of stock owned by the judgment debtor and his wife to satisfy a money judgment, judgment of the trial court is reversed as it was an abuse of discretion to order worthless shares of stock transferred to a judgment creditor in satisfaction of a money judgment without any reduction in the outstanding judgment.     

Read Ho v. Hsieh, No. B211501 [HTML]

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Appellate Information

Filed January 26, 2010

Judges

Opinion by Judge Kriegler

For Appellant:   Orrick, Herrington & Sutcliffe, Matthew H. Poppe, M. Leah Somoano and Frank D. Rorie

For Appellee:   Eagan, O'Malley & Avenatti and John C. O'Malley

In re Desiree M., No. D055670

Juvenile court's judgment terminating a mother's parental rights over her two children is affirmed as: 1) the mother lacked standing to raise notice and inquiry issues; 2) the mother forfeited any right to raise the notice and inquiry issues; and 3) although the court should have inquired into the children's absence from a continued hearing, they were provided sufficient notice, and any error was harmless.      

Read In re Desiree M., No. D055670 [HTML]

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Appellate Information

Filed January 26, 2010

Judges

Opinion by Judge Aaron

For Appellant:   Patricia K. Saucier

For Appellee:   John J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, Gary C. Seiser, Senior Deputy County Counsel

Manuel C. v. Sup. Ct., No. B220163

A father's petition for writ of mandate challenging a juvenile court's denial of his peremptory challenge on the ground that it was untimely pursuant to Code of Civil Procedure section 170.6(a)(2) is granted as, once the juvenile court terminates jurisdiction over a dependent child, a subsequent case involving the same child and parent is a new matter for purposes of the time limits for filing a 170.6 motion.     

Read Manuel C. v. Sup. Ct., No. B220163 [HTML]

Read Manuel C. v. Sup. Ct., No. B220163 [PDF]

Appellate Information

Filed January 26, 2010

Judges

Opinion by Judge Epstein

For Appellant:   Law Offices of Alex Iglesias, Steven D. Shenfeld and Wendy Kingston

For Appellee:   N/A

People v. Robinson, No. S158528

Conviction of defendant for five felony sexual offenses against the same victim is affirmed where: 1) in cases in which the warrant identifies the perpetrator by his or her unique DNA profile only, the statute of limitations is satisfied if the prosecution is commenced by the filing of the "John Doe" arrest warrant within the limitations period; 2) and although the defendant's blood was mistakenly collected under the Data Bank Act, the law enforcement personnel errors in the case do not trigger the exclusionary rule.     

Read People v. Robinson, No. S158528 [HTML]

Read People v. Robinson, No. S158528 [PDF]

Appellate Information

Filed January 25, 2010

Judges

Opinion by Judge Chin

Counsel
For Appellant:   Cara DeVito

For Appellee:   Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Gerald A. Engler and Michael P. Farrell, Assistant Attorneys General, Michael Chamberlain, Stephanie A. Mitchell, Doris A. Calandra and Enid A. Camps, Deputy Attorneys General

Lexin v. Sup. Ct., No. S157341

In a prosecution of defendants-board trustees, responsible for administering the City of San Diego's (City) retirement system, for felony violations of state conflict of interest statutes for allegedly voting to authorize an agreement allowing the City to limit funding of its retirement system in exchange for the City's agreeing to provide increased pension benefits to City employees, a court of appeals' denial of defendants' motion to set aside the information against them is reversed and remanded as to five of the six defendants where: 1) with one exception, the defendant trustees' actions fall within statutory exceptions to Government Code section 1090, and accordingly, their motion to dismiss the information against them should have been granted as this case turns on the conclusion that the trustees of the City's retirement system board were not burdened by a conflict of the sort section 1090 prohibits; and 2) the sixth defendant could, on the preliminary hearing record, reasonably be suspected of having obtained a unique, personalized pension benefit as a result of voting to approve the retirement board's contract with the City and such individually tailored benefits pose genuine conflict problems and do not fall under any statutory exception.     

Read Lexin v. Sup. Ct., No. S157341 [HTML]

Read Lexin v. Sup. Ct., No. S157341 [PDF]

Appellate Information

Filed January 25, 2010

Judges

Opinion by Judge Werdeger

Counsel
For Appellant:   Bonnie M. Dumanis, District Attorney, Stephen R. Robinson, Craig E. Fisher and William J. La Fond, Deputy District Attorneys

For Appellee:   N/A

Stein v. York, No. G040457

In plaintiff's legal malpractice action against her attorney, trial court's entry judgment of $2.65 million in favor of the plaintiff is reversed where: 1) a default judgment for an amount greater than that stated in the complaint is void; 2) constructive notice of potential liability does not satisfy Code of Civil Procedure section 580; 3) the judgment is void and vacated as plaintiff did not comply with the notice requirement; and 4) plaintiff's motion to dismiss the appeal is denied.     

Read Stein v. York, No. G040457 [HTML]

Read Stein v. York, No. G040457 [PDF]

Appellate Information

Filed January 25, 2010

Judges

Opinion by Judge Rylaarsdam

Counsel
For Appellant:   Michael G. York, in pro. per.; and Gerald N. Shelley

For Appellee:   Law Offices of Timothy D. McGonigle and Timothy D. McGonigle

People v. Powell, No. C057847

In a prosecution of defendant for DUI related offenses, judgment of the trial court is reversed in part, affirmed in part and remanded where: 1) the trial court did not err in substituting two misdemeanor charges for two felony charges for which there was insubstantial evidence; but 2) defendant's conviction for leaving the scene of an injury accident pursuant to section 20001 is reversed as no substantial evidence supports the conviction.  

Read People v. Powell, No. C057847 [HTML]

Read People v. Powell, No. C057847 [PDF]

Appellate Information

Filed January 25, 2010

Judges

Opinion by Judge Sims

Counsel
For Appellant:   Patricia L. Brisbois

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

County of Los Angeles v. Sup. Ct., No. B214842

In plaintiffs' action against the County of Los Angeles and officials seeking damages for violation of their civil rights under the Civil Code section 52.1 and 42 U.S.C. section 1983 for breach of bailment, and seeking an injunction, arising from an incident when the District Attorney's Office searched and seized plaintiffs' property pursuant to a warrant and retained and damaged some of the property, trial court erred in denying defendants' motion for summary adjudication on all causes of action as defendants are immune to the claims. 

Read County of Los Angeles v. Sup. Ct., No. B214842 [HTML]

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Appellate Information

Filed January 25, 2010

Judges

Opinion by Judge Aldrich

Counsel
For Appellant:   Collins Collins Muir & Stewart, Tomas A. Guterres, Douglas Fee, Catherine M. Mathers and Christian E. Foy Nagy

For Appellee:   Knickerbocker Law Corporation and Richard L. Knickerbocker

DiQuisto v. County of Santa Clara, No. H032345

In plaintiff-taxpayers' action against a county and its Board of Supervisors and city officials claiming that the county improperly spent public funds for partisan electoral purposes by bargaining for the unions' non-support of the initiative measure to mandate binding arbitration, trial court's judgment in favor of the defendants is affirmed where: 1) plaintiffs' arguments that the county violated Stanson in bargaining with the unions about support for the binding interest initiative is rejected as the county did not expend public funds to promote a partisan position in an election campaign; and 2) the supervisor's email did not violate Stanson as substantial evidence supports the determination that the text of the email was informational and any expenditure in preparing and distributing the email with its attachment was minimal. 

Read DiQuisto v. County of Santa Clara, No. H032345 [HTML]

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Appellate Information

Filed January 25, 2010

Judges

Opinion by Judge McAdams

Counsel
For Appellant:   Wylie, McBride, Platten & Renner; John McBride, Christopher E. Platten, Mark S. Renner, Clisham & Sortor; David P. and Clisham, Law Offices of Donald T. Ramsey and Donald T. Ramsey

For Appellee:   Ann Miller Ravel, County Counsel, Miguel Marquez, County Counsel, Winifred Botha, Assistant County Counsel, Gregory J. Sebastinelli, Deputy County Counsel, Crowell & Moring; Ethan P. Schulman, Michael Y. Kao

In re Z.N., No. A124843

Termination of a mother's parental rights over seven-year-old twins and selecting adoption as their permanent plan after a hearing under Welfare and Institutions Code, section 366.26 is affirmed where: 1) there is no record suggestions that anything would have gone more favorably for the mother had the court granted the McKenzie/Mardsen motions; and 2) any error in the ICWA notice was harmless, and this leaves no need to consider further arguments. 

Read In re Z.N., No. A124843 [HTML]

Read In re Z.N., No. A124843 [PDF]

Appellate Information

Filed January 25, 2010

Judges

Opinion by Judge Lambden

Counsel
For Appellant:   Kimiko Burton, Dennis H. Herrera, Office of the City Attorney

For Appellee:   Justine J. Juson

People v. Kelly, No. S164830

In an action arising from a conviction of a defendant for possessing more than 28.5 grams of marijuana, court of appeals judgment determining the validity of Health & Safety Code section 11362.77 which prescribes the amount of marijuana that a qualified patient may possess or cultivate is affirmed in part and reversed in part where: 1) insofar as section 11362.77 burdens a defense under the CUA to a criminal charge of possessing or cultivating marijuana, it impermissibly amends the Compassionate Use Act (CUA) and in that respect is invalid under California Constitution article II, section 10(c);  and 2) the Court of Appeals erred in concluding that section 11362.77 must be severed from the Medical Marijuana Program (MMP) and hence voided.     

Read People v. Kelly, No. S164830 [HTML]

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Appellate Information

Filed January 21, 2010

Judges

Opinion by Judge George

Counsel
For Appellant:  Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Donald E. De Nicola, Deputy State Solicitor General, Lawrence M. Daniels, Ana R. Duarte, Kristofer Jorstad and Michael R. Johnsen, Deputy Attorneys General

For Appellee:   Gloria C. Cohen and Gerald F. Uelman

In re Freeman, No. S150984

Court of appeals' reversal of defendant's conviction for child endangerment and related crimes is reversed and remanded as, while a showing of actual bias is not required for judicial disqualification under the due process clause, neither is the mere appearance of bias sufficient, and in light of Caperton v. A.T. Massey Coal Co., Inc., __ U.S. __ (2009), this case does not present the "extreme facts" that require judicial disqualification on due process grounds. 

Read In re Freeman, No. S150984 [HTML]

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Appellate Information

Filed January 21, 2010

Judges

Opinion by Judge Moreno

Counsel
For Appellant:   Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Donald E. De Nicola, Deputy State Solicitor General, Pamela Ratner Sobeck, Steven T. Oetting and Christopher P. Beesley, Deputy Attorneys General

For Appellee:   Carl M. Hancock

Nieto v. Blue Shield of California Life & Health Ins. Co., No. B214669

In plaintiff's action against Blue Shield after it rescinded her insurance policy, summary judgment for defendant is affirmed as the undisputed evidence established that information plaintiff provided to Blue Shield was false, and contrary to her assertions, Blue Shield had no statutory duty to show that plaintiff's application had been physically attached to the insurance policy nor to conduct further inquiries during the underwriting process to ascertain the truthfulness of plaintiff's representations before it issued the policy. 

Read Nieto v. Blue Shield of California Life & Health Ins. Co., No. B214669 [HTML]

Read Nieto v. Blue Shield of California Life & Health Ins. Co., No. B214669 [PDF]

Appellate Information

Filed January 19, 2010

Judges

Opinion by Judge Todd

Counsel
For Appellant:   Shernoff Bidart Darras Echeverria, William M. Shernoff, Evangeline Fisher Grossman, Joel A. Cohen

For Appellee:   Manatt Phelps & Phillips, Gregory N. Pimstone and Joanna S. McCallum

Pracht-Smith v. California Dep't of Soc. Serv., No. C060992

Trial court's denial of plaintiffs' petition to set aside their Ukrainian adoption of a Ukrainian girl is affirmed as Family Code section 9100 applies only to adoptions granted by a California state court, and as such, the trial court correctly found that section 9100 could not be used to  undo the Ukrainian adoption.     

Read Pracht-Smith v. California Dep't of Soc. Serv., No. C060992 [HTML]

Read Pracht-Smith v. California Dep't of Soc. Serv., No. C060992 [PDF]

Appellate Information

Filed January 19, 2010

Judges

Opinion by Judge Sims

Counsel
For Appellant:   Law Offices of Richard G. Fathy and Richard G. Fathy

For Appellee:   Edmund G. Brown Jr., Attorney General, Douglas M. Press, Assistant Attorney General, Julie Weng-Gutierrez and Naomi L. Wijewantha, Deputy Attorneys General

People v. Barrett, No. H034154

Trial court's order of commitment of defendant to the Department of Developmental Services for one year under Welfare and Institutions Code section 6500 is affirmed where: 1) due process and equal protection do not require the court to affirmatively advise the proposed committee under section 6500 of his or her right to a jury trial and, because commitment proceedings are civil in nature, the right may be waived as in civil proceedings generally by the failure to request a jury, and on the record, defendant's right to a jury trial was waived; and 2) even if the court were required to and did not advise defendant of her right to a jury trial and obtain an express waiver of that right, on the record, any such error would be harmless beyond a reasonable doubt.     

Read People v. Barrett, No. H034154 [HTML]

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Appellate Information

Filed January 21, 2010

Judges

Opinion by Judge Duffy

Counsel
For Appellant:   Jean Matulis

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

Superior Dispatch Inc. v. Ins. Corp. of New York, No. B204878

In plaintiff's breach of contract action against its insurer, trial court's grant of summary judgment in favor of the defendant is affirmed where: 1) trial issues of fact as to whether defendant is equitably estopped from asserting the contractual limitations provision preclude summary judgment based on the provision; 2) defendant is entitled to summary judgment based on a material misrepresentation in the insurance application; and 3) plaintiff has shown no prejudicial error in the sustaining of the demurrer to the fraud count.   

Read Superior Dispatch Inc. v. Ins. Corp. of New York, No. B204878 [HTML]

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Appellate Information

Filed January 21, 2010

Judges

Opinion by Judge Croskey

Counsel
For Appellant:   Pierry Shenoi, Brown Shenoi Koes, Allan A. Shenoi; Law Offices of Daniel J. Koes, Brown Shenoi Koes and Daniel J. Koes

For Appellee:   Lewis Brisbois Bisgaard & Smith and Raul L. Martinez

Total Call Int'l Inc. v. Peerless Ins. Co., No. B212923

In plaintiff's action against its insurance company claiming that it had improperly declined to defend plaintiff in litigation arising out of its advertising activities, trial court's judgment sustaining defendant's demurrer to plaintiff's complaint is affirmed where: 1) the fact that a third party complaint mentions an element of a covered claim does not trigger the duty to defend when the facts known to the insurer, viewed as a whole, establish that no such claim is potentially asserted; 2) there was no potential for policy coverage in view of the nonconformity exclusions, which bars coverage for advertising injury arising out of the failure of goods, products or services to conform with any statement of quality or performance made in the insured's advertisement; and 3) trial court properly sustained the demurrer without leave to amend.     

Read Total Call Int'l Inc. v. Peerless Ins. Co., No. B212923 [HTML]

Read Total Call Int'l Inc. v. Peerless Ins. Co., No. B212923 [PDF]

Appellate Information

Filed January 21, 2010

Judges

Opinion by Judge Manella

Counsel
For Appellant:   The Cronin Law Group and Timothy C. Cronin

For Appellee:   Lindahl Beck LLP, Kelley K. Beck and Andrew Sperry

Steroid Hormone Product Cases, No. B211968

In a class action lawsuit against General Nutrition Companies (GNC) involving over-the-counter sales of products containing anabolic steroids, brought under the Unfair Competition Law (UCL) and the Consumer Legal Remedies Act (CLRA), trial court's denial of motion to certify is reversed where: 1) plaintiff's UCL claim presents two predominant issues, both of which are common to the class; and 2) the damage that a plaintiff in a CLRA action must show is any damage which is not synonymous with actual damages and may encompass harms other than pecuniary damages, and here, the damage plaintiff alleged in the case is that, in reliance on GNC's deceptive conduct, he bought an illegal product he would not have bought had he known it was illegal. 

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Appellate Information

Filed January 21, 2010

Judges

Opinion by Judge Willhite

Counsel
For Appellant:   Cohelan & Khoury, Timothy D. Cohelan and Isam C. Khoury; Clark & Markham, James M. Treglio and David R. Markham

For Appellee:   Orrick, Herrington & Sutcliffe, Kathleen D. Patterson and Rocky C. Tsai; McGuireWoods and Gordon W. Schmidt

Poniktera v. Seiler, No. D054267

In plaintiff's petition for a writ of mandate seeking to compel defendant to allow citizens to use cameras or other recording devices inside polling stations in future elections and to comply with obligations to secure ballot boxes against tampering in future elections, trial court's denial of the requested relief is affirmed where: 1) the polling station, the only area to which the challenged policy can and does apply, is a nonpublic forum, and the photography policy is reasonable; 2) trial court acted within its discretion to deny declaratory relief because the requested declaration would have little practical effect in terms of altering parties' behavior; 3) registrar's policies do not violate any requirements imposed by law; and 4) evidentiary objections were not improperly sustained, and certain trial court rulings were not prejudicial.  

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Appellate Information

Filed January 21, 2010

Judges

Opinion by Judge McDonald

Counsel
For Appellant:   Ken I. Karan, Law Office of Ken I. Karan

For Appellee:   John J. Sansone, County Counsel, Miriam E. Brewster and Timothy M. Barry, Deputy County Counsel

Truong v. Glasser, No. D054312

In plaintiffs' legal malpractice action against his former attorney arising out of his purported negligent advice in a real estate transaction, grant of attorney's motion for summary judgment is affirmed where: 1) under prior case law, the trial court correctly found plaintiffs first sustained actual injury when they obtained and obligated to pay new counsel to file a lawsuit seeking to escape the consequences of their signing the lease, and therefore sustained actual injury more than one year before the malpractice action was filed; 2) trial court did not abuse its discretion by declining to reject the summary judgment motion based on the absence of headings within the Separate Statement of Material Facts;  and 3) under the circumstances, plaintiffs have demonstrated neither that the trial court abused its discretion in considering the evidence submitted by defendant nor that any alleged error was prejudicial. 

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Appellate Information

Filed January 21, 2010

Judges

Opinion by Judge McDonald

Counsel
For Appellant:   The Gomez Law Group, Alvin M. Gomez and Sarah Kvarme

For Appellee:   Lewis Brisbois Bisgaard & Smith, Peter L. Garchie, Ruben Tarango, Jeffry A. Miller, Matthew B. Stucky and Lisa Cooney

People v. Sok, No. B213467

Trial court's imposition of 84 year sentence on a defendant convicted of attempted murder and related crimes is reversed and remanded where: 1) trial court erred in calculating defendant's sentence for the attempted murder count; 2) trial court erred in applying the criminal street gang enhancement to defendant's sentence for shooting at an occupied vehicle; 3) absent different discretionary sentencing choices by the trial court, on remand the court should impose the aggregate sentence for shooting at an occupied vehicle, while staying the sentences attempted murder charges pursuant to section 654; and 4) trial court improperly sentenced defendant on the unlawful gun possession and ammunition counts.     

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Appellate Information

Filed January 21, 2010

Judges

Opinion by Judge Perluss

Counsel
For Appellant:   Marcia R. Clark,

For Appellee:   Edmund G. Brown Jr. Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan and Kathy S. Pomerantz, Deputy Attorneys General.

California Corr. Peace Officers Ass'n v. Virga, No. A123989

Trial court's denial of defendants' requests for attorney's fees, brought after they successfully defended against a claim of civil rights violations involving a ballot measure relating to certain political activities of labor organizations, is affirmed where: 1) defendants were not entitled to attorney's fees pursuant to Code of Civil Proc. section 1038 because this action did not qualify as a "civil proceeding under the California Tort Claims Act" for purposes of the statute; and 2) the trial court did not err in denying defendants' second motion for fees under the federal Civil Rights Attorney's Fees Awards Act of 1976. 

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Appellate Information

Filed January 15, 2010

Judges

Opinion by Judge Sepulveda

Counsel
For Appellant:   Littler Mendelson, John J. Skonberg, Richard H. Rahm, Joshua D. Kienitz; Department of Personnel Administration, State of California, K. William Curtis, Warren C. Stracener, Paul M. Starkey, Jennifer M. Garten, Ronald R. Pearson

For Appellee:   Carroll, Burdick & McDonough, Gregg McLean Adam, Laurie J. Hepler; California Correctional Peace Officers' Association, Daniel M. Lindsay

UDC-Universal Dev., LP v. CH2M Hill, No. H033610

In an indemnity action arising from a lawsuit brought by a homeowner's association (HOA) over defective conditions in a condominium complex, trial court's order requiring defendant to reimburse plaintiff for the defense costs it had incurred in defending the HOA claims is affirmed where: 1) the indemnity provision does not state that there must be an underlying claim of negligence specifically against defendant in order to trigger its defense obligation; 2) the trial court did not err in its determination that plaintiff's claims were not barred by illegality of the parties' contracts; and 3) defendant failed to establish that it had incurred expenses that were attributable to plaintiff's failure to file a statutory certificate.   

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Appellate Information

Filed January 15, 2010

Judges

Opinion by Judge Elia

Counsel
For Appellant:   Watt, Tieder, Hoffar & Fitzgerald and Bennett Lee, Ben Patrick and David R. Johnson

For Appellee:   Robinson & Wood and John B. Zimmerman and Hugh F. Lennon

People v. Bankers Ins. Co., No. F056891

Trial court's order denying Bankers Insurance Company's motion to set aside summary judgment entered against it, discharge a forfeiture, and exonerate its bail bond is affirmed as the filing of the criminal complaint did not materially increase Bankers' risk resulting in exoneration of the bond.     

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Appellate Information

Filed January 14, 2010

Judges

Opinion by Judge Gomes

For Appellant:   Daniel K. Martin

For Appellee:   Kevin B. Briggs, County Counsel, and Justin B. Atkinson, Deputy County Counsel

People v. Martinez, No. S074624

Conviction of defendant for murder and rape of several women and other crimes, and sentence to death are affirmed where: 1) there is no prejudice in the trial court's decision not to investigate further and to retain a juror; 2) defendant's Miranda claims lack merit and the trial court did not err in admitting his statements at trial; 3) defendant failed to demonstrate prejudice with respect to instructional error as to the issues of consent; 4) defendant's claim of prosecutorial misconduct during closing arguments is rejected; 5) defendant's cumulative error claim is rejected; 6) given that none of the errors affected the guilt phase, defendant fails to show, under any standard, how these same errors could have affected the penalty phase; 7) defendant's claim with respect to victim impact evidence is rejected; 8) trial court's evidentiary rulings on adjustment potential were narrow; 9) any error with respect to prosecutorial misconduct at the penalty phase was harmless; 10) defendant's claim that the special circumstance allegations as applied is unconstitutional is without merit; and 11) defendant's constitutional challenges to California's death penalty law are rejected as the statute adequately narrows the class of death-eligible offenders.     

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Appellate Information

Filed January 14, 2010

Judges

Opinion by Judge Moreno

Counsel
For Appellant:   Christopher Johns

For Appellee:   Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey and Joseph P. Lee, Deputy Attorneys General,

Chavez v. City of Los Angeles, No. S162313

In plaintiff's action under the Fair Employment and Housing Act (FEHA), court of appeals' reversal of trial court's denial of plaintiff's motion seeking an attorney's fee award of $870,935.50 is reversed where: 1) Code Civ. Proc. section 1033(a), interpreted according to its plain meaning, gives a trial court discretion to deny attorney's fees to a plaintiff who prevails on a FEHA claim but recovers an amount that could have been recovered in a limited civil case; and 2) in light of plaintiff's minimal success and grossly inflated attorney's fee request, the trial court did not abuse its discretion in denying attorney's fees.     

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Appellate Information

Filed January 14, 2010

Judges

Opinion by Judge Kennard

Counsel
For Appellant:   Law Office of Rochelle Evans Jackson, Rochelle Evans Jackson; Law Office of Melinda G. Wilson and Melinda G. Wilson

For Appellee:   Rockard J. Delgadillo, City Attorney, Paul L. Winnemore and Beth D. Orellana, Deputy City Attorneys

In re I.W., No. H034129

Judgment of a juvenile court terminating a mother's parental rights and selecting adoption as the permanent plan concerning her children is affirmed where: 1) there was substantial evidence supporting the juvenile court's finding that the child was likely to be adopted; and 2) substantial evidence supports that the notices sent by the county department were sufficient and substantially complied with the ICWA so that any deficiencies in the notices were de minimis and not prejudicial. 

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Appellate Information

Filed January 13, 2010

Judges

Opinion by Judge Premo

Counsel
For Appellant:  Miguel Marquez, Acting County Counsel, Susan S. Ware, Deputy County Counsel

For Appellee:   Linda K. Harvie

People v. Duong, No. A124640

Trial court's denial of district attorney's motion requesting that  defendant pay full restitution to the victim is vacated and remanded as the trial court erred in failing to include in the restitution order the amount that would be accepted as full payment for the medical services to the victim which, however, is less than the amount billed for those services demanded by the district attorney.   

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Appellate Information

Filed January 13, 2010

Judges

Opinion by Judge Pollak

Counsel
For Appellant:   Kamala D. Harris, District Attorney of San Francisco, Laura L. Zunino, Assistant District Attorney

For Appellee:   N/A

County of Kern v. California Dep't of Health Serv., No. B211594

In plaintiff's suit challenging defendant's decision to reduce plaintiff-county's Medi-Cal reimbursements, arising from a contract dispute involving a contract for hospital inpatient services, ruling denying plaintiff's petition for writ of mandate and upholding the decision by defendant-agency is affirmed where: 1) defendant properly interpreted the Medi-Cal contract; and 2) defendant properly calculated the nurse to patient staffing ratios by using plaintiff's assignment sheets. 

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Appellate Information

Filed January 13, 2010

Judges

Opinion by Judge Ashmann-Gerst

Counsel
For Appellant:   Foley & Lardner, Tami S. Smason, Diane Ung and Jeffrey R. Bates

For Appellee:   Edmund G. Brown, Jr., Attorney General, Douglas M. Press, Assistant Attorney General, Richard T. Waldow and Gregory M. Cribbs, Deputy Attorneys General

In re Anna S., No. D055036

In dependency proceedings, an appeal from an order detaining appellant's daughter is dismissed as moot, although the court of appeals nevertheless reviews the issues on the merits and determines that the trial court erred to the extent it used a non-final opinion of an appellate court to alter its procedures and influence the outcome of the matter before it, as the trial court should have proceeded solely on the basis of its continuing jurisdiction, which authorizes it to continue to decide issues concerning the child's placement and well-being during the pendency of an appeal. 

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Appellate Information

Filed January 13, 2010

Judges

Opinion by Judge Benke

Counsel
For Appellant:   Lelah Selene Forrey-Baker

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

People v. Alford, No. C060251

Conviction and sentence of defendant for burglary and related crimes is affirmed as, when a trial court determines that Penal Code section 654 applies to a particular count, the trial court must impose sentence on that count and then stay execution of the sentence, as there is no authority for a court to refrain from imposing sentence on all counts, except where probation is granted, and failing to impose sentence on all counts can lead to procedural difficulties if the count on which sentence was imposed is later reversed or vacated.     

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Appellate Information

Filed January 13, 2010

Judges

Opinion by Judge Cantil-Sakauye

Counsel
For Appellant:   David Annicchiarico

For Appellee:   Edmund G. Brown, Jr., Attorney General, Craig S. Meyers, Deputy Attorney General

In plaintiffs' petition for a writ of mandate to compel defendants to set aside certain design guidelines, denial of the request and entry of judgment of dismissal is affirmed where: 1) the design guidelines are not a zoning ordinance within the meaning of the government code; 2) plaintiffs have not demonstrated that the design guidelines are inconsistent with the general plan; 3) the design guidelines do not conflict with state density bonus law; 4) the design guidelines are authorized by state law; and 5) a CEQA claim is time-barred. 

Read PR/JSM Rivara LLC v. Cmty Redevelopment Agency of the City of Los Angeles, No. B213051 [HTML]

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Appellate Information

Filed January 13, 2010

Judges

Opinion by Judge Suzukawa

Counsel
For Appellant:   Jeffer, Mangels, Butler & Marmaro, Joel D. Deutsch, Matthew D. Hinks, and Benjamin M. Reznik

For Appellee:  Curtis S. Kidder, Agency General Counsel, and Miguel A. Dager, Deputy City Attorney; Meyers, Nave, Riback, Silver & Wilson, Deborah J. Fox, and Dawn A. McIntosh

In re Criscione, No. H033781

In habeas proceeding of a defendant convicted of second-degree murder of his girlfriend, superior court's conclusion that the matter should be remanded to the Parole Board for a new hearing to be conducted in conformance with the standard set by Lawrence is reversed as there is some evidence to support the Board's conclusion that defendant is currently dangerous.  

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Appellate Information

Filed January 13, 2010

Judges

Opinion by Judge Premo

Counsel
For Appellant:   Edmund G. Brown Jr. Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Anya M. Binsacca, Supervising Deputy Attorney General, Amanda J. Murray Deputy Attorney General

For Appellee:   Barbara B. Fargo

Full Throttle Films, Inc. v. Nat'l Mobile Television, Inc., No. B211713

In ex parte proceedings, after plaintiff obtained a writ of attachment and levied on certain deposit accounts of defendant, trial court's grant of third-party claimant Wachovia Capital Finance Corporation's application for release of the levied property and order quashing the levy is reversed where: 1) the record contains no evidence to support the trial court's finding that Wachovia holds a perfected security interest in the accounts on which plaintiff levied; and 2) the record contains no evidence that Wachovia met any of the alternative requirements for showing that its security interest was not subordinated to plaintiff's attachment lien.   

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Appellate Information

Filed January 12, 2010

Judges

Opinion by Judge Rothschild

Counsel
For Appellant:   Law Offices of Hemar Rousso & Heald, Jeannine Del Monte Kowal and Irwin M. Wittlin

For Appellee:   Levene, Neale, Bender, Rankin & Brill, Beth Ann R. Young, Michelle S. Grimberg and Krikor J. Meshefejian

In re Miguel H., No. B214864

An order sustaining a petition under Welfare and Institutions Code section 602 after the juvenile court found defendant possessedcri tools to commit vandalism or graffiti and related crimes is affirmed as there is sufficient evidence to support the finding that the defendant violated section 594.1(e)(1).   

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Appellate Information

Filed January 12, 2010

Judges

Opinion by Judge Jackson

Counsel
For Appellant:   Laini Millar Melnick

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 and Eric J. Kohm, Deputy Attorneys General

People v. Gonzalez, No. B207856

Convictions of defendants for attempted murder and assault with a semiautomatic firearm and finding true various enhancements is reversed in part and remanded as, the trial court erred by imposing a minimum 15-year parole eligibility requirement for the attempted premeditated murder conviction as it was barred under the gang statute.   

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Appellate Information

Filed January 12, 2010

Judges

Opinion by Judge Rubin

Counsel
For Appellant:  Linn Davis, David M. Thompson

For Appellee:  Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle, and Peggy Z. Huang, Deputy Attorneys General

Ohton v. California State Univ. of San Diego, No. D053738

In plaintiff's request for a writ of mandate to seek civil damages against a university for retaliation, trial court's denial of plaintiff's request is reversed as, the university did not satisfactorily address plaintiff's complaint because it applied an incorrect standard in evaluating whether his retaliation claims were made in good faith, and also failed to address the matter of discipline and punishment despite having found retaliation.   

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Appellate Information

Filed January 12, 2010

Judges

Opinion by Judge O'Rourke

Counsel
For Appellant:  Schoville & Arnell, Dennis A. Schoville, Louis G. Arnell, James S. Iagmin; Boudreau Williams and Jon R. Williams

For Appellee:   Gordon & Rees, Christopher B. Cato, Eric M. Volkert and James J. McMullen, Jr.

People v. Skiles, No. G040808

In sentencing of defendant convicted of burglary and receiving stolen property, judgment is modified as defendant cannot be punished for both burglary and receiving stolen property taken during the burglary and the sentence is also modified to award defendant proper conduct credit for the time served in jail prior to sentencing.  The remaining issues relating to the trial court's true finding on the prior serious felony allegation for purposes of Three Strikes law is affirmed.   

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Appellate Information

Filed January 12, 2010

Judges

Opinion by Judge Bedsworth

Counsel
For Appellant:   Susan L. Ferguson

For Appellee:   Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General,  Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Stephanie H. Chow, Deputy Attorneys General

Lawson v. Sup. Ct., No. D055396

Inmate's petition for a writ of mandate seeking review of trial court's ruling sustaining demurrers to several of her and her infant daughter's causes of action for physical injury and emotional distress is granted in part where: 1) the trial court properly sustained the demurrer as to plaintiff's causes of action for negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress against the state, as well as her cause of action for "failure to furnish medical care to prisoner" against the state and state employees, as plaintiff was a prisoner and the defendants are entitled to immunity under the Tort Claims Act; 2) plaintiff's infant daughter was not a prisoner within the meaning of Gov Code section 844, and thus, defendants are not entitled to claim the protection of the special immunity provisions set forth in Gov Code section 844.6 and 845.6 which apply only to injuries incurred by prisoners; 3) under the exception to governmental immunity for vicarious liability of an employee acting within the scope of his employment, the complaint adequately pleads a cause of action for negligence against the state for the acts and omissions of the state employees; 4) the complaint does not plead causes of action for negligent and intentional infliction of emotional distress against the employees on behalf of the infant daughter; 5) the complaint does not state a direct claim against the state under the theory that it breached a mandatory statutory duty to the daughter; 6) trial court erred in sustaining the correctional facility's demurrer on the ground of governmental immunity; and 7) the trial court erred in sustaining the facility employees' demurrers on the basis of governmental immunity as they are not public employees and, even if they were, immunity would not apply for the causes of action at issue in the case.    

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Appellate Information

Filed January 11, 2010

Judges

Opinion by Judge Irion

Counsel
For Appellant:   William J. Brown III; and John T. Richards

For Appellee:   Brack & Mason, Lindsay R. Brack, Susan L. Mason; Cihigoyenetche, Grossberg & Clouse, Richard R. Clouse and Anthony C. Ferguson

Baker v. Nat'l Interstate Ins. Co., No. B204860

In an insurance coverage dispute arising from a wrongful death lawsuit involving a school bus accident where the driver was ejected from the bus when the seat belt broke loose, judgment of the trial court in favor of the insured is reversed and remanded as the policy in this case excluded coverage to the insured for damages arising from its inspection services, which were work-related, "completed operation," regardless of whether those inspection services were related to the bus.     

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Appellate Information

Filed January 11, 2010

Judges

Opinion by Judge Bigelow

Counsel
For Appellant:   Horvitz & Levy, Julie L. Woods, Peter Abrahams; Sedgwick, Detert, Moran & Arnold, and Julia Molander

For Appellee:  The Arkin Law Firm, Sharon J. Arkin; Mardirossian & Associates, and Garo Mardirossian

People v. Fierro, No. B209030

Conviction of defendant for making criminal threats and giving false information to a police officer, arising from an altercation with another motorist at a gas station, is affirmed as substantial evidence supports conviction for making criminal threats where the jury reasonably could have found that the defendant's action created a sustained fear, a state of mind that was certainly more than momentary, fleeting, or transitory.     

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Appellate Information

Filed January 11, 2010

Judges

Opinion by Judge Mohr

Counsel
For Appellant:   Carol S. Boyk

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 and Tannaz Kouhpainezhad, Deputy Attorneys General

People v. Dominguez, No. B212967

Defendant's conviction for felony false imprisonment of a child under the age of 14 and sentence to state prison for the upper term of three years and a concurrent term of 365 days in county jail on a related misdemeanor is affirmed as substantial evidence supports the conviction of felony and misdemeanor false imprisonment.    

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Appellate Information

Filed January 11, 2010

Judges

Opinion by Judge Kriegler

Counsel
For Appellant:   Gerald Peters

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

San Diego County Health & Human Serv. Agency v. Deidre B., No. D054783

In a petition by a County Public Conservator to reestablish a conservatorship of an individual under the Lanterman-Petris-Short (LPS) Act on the grounds that she remained gravely disabled and was unable to provide for her basic needs of food, clothing, and shelter, trial court's decision reestablishing conservatorship is affirmed where: 1) the trial court did not violate the individual's due process rights by accepting a stipulation filed by her attorney stating she consented to the reestablishment and waived her right to a formal hearing; and 2) the individual's assertion that the court should consider a post-judgment declaration in which she raises new factual allegations challenging her knowing consent to the stipulated reestablishment is rejected.  

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Appellate Information

Filed January 11, 2010

Judges

Opinion by Judge Haller

Counsel
For Appellant:   Suzanne M. Davidson

For Appellee:     John J. Sansone, County Counsel, William A. Johnson, Jr., Senior Deputy County Counsel

Suleman v. Sup. Ct., No. G042509

A petition for a writ of mandate by plaintiff, commonly referred to in the media as the "Octomom", challenging the probate court's denial of her motion to dismiss a petition by an individual, a president of a nonprofit corporation, and the court's appointment of the Orange County Social Services Agency (SSA) to conduct an investigation of the family's finances is granted where: 1) the probate court erred by denying plaintiff's motion to dismiss the petition; 2) the individual  seeking guardianship has no standing under Probate Code section 1510(a) as the petition seeking appointment of a guardian of the octopulets' estates should have been dismissed because he has neither pleaded ultimate facts demonstrating the plaintiff has engaged in any financial misconduct, nor alleged any other information warranting court investigation in the plaintiff's family's finances; and 3) the probate court's order for an investigation of the family's finances is vacated.     

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Appellate Information

Filed January 10, 2010

Judges

Opinion by Judge Fybel

Counsel
For Appellant:   Law Offices of Arthur J. LaCilento, Arthur J. LaCilento; Jeffery J. Czech & Associates and Jeffery J. Czech

For Appellee:   Deily Law Firm, John P. Deily, Cynthia V. Roehl, Michele Carmeli; Allred, Maroko & Goldberg, Gloria Allred and John S. West

People v. Orozco, No. F056712

In proceedings arising from a second-degree murder conviction pursuant to a no contest plea, denial of defendant's request for continuance to retain private counsel and to bring a motion to withdraw his plea is reversed as defendant cannot be found to have waived his presentence right in trial court to challenge the effectiveness of his counsel when the claimed ineffectiveness related to the advice he received at the time he entered the plea containing the purported waiver. 

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Appellate Information

Filed January 8, 2010

Judges

Opinion by Judge Vartabedian

Counsel
For Appellant:   Elizabeth Campbell

For Appellee:   Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Galen N. Farris, Deputy Attorneys General

People v. Hollie, No. A121545

Defendant's conviction for rape and related crimes and imposition of sentence of 10 years' imprisonment is affirmed where: 1) the 10-year statute of limitations for the offenses of rape and sexual penetration with a foreign object did not expire, and the prosecution of defendant was timely; and 2) upon consideration of both the probative value of the evidence and its prejudicial effect, the trial court did not abuse its discretion by admitting certain uncharged acts evidence under Evidence Code section 1108.     

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Appellate Information

Filed January 8, 2010

Judges

Opinion by Judge Dondero

Counsel
For Appellant:   Andrew Parnes

For Appellee:   Edmund G. Brown, Jr. Attorney General, Gerald A. Engler, Assistant Attorney General, Gregg E. Zywicke, and Sara Turner Deputies Attorney General

Weinstat v. Dentsply Int'l Inc., No. A116248

In plaintiffs' class action lawsuit against a manufacturer of certain device used by dentists under the unfair competition law (UCL) and for breach of express warranty, trial court's order decertifying the class of dentists is reversed where: 1) Tobacco II has dispatched the incorrect reasoning of the trial court that, under Proposition 64, each class member must establish standing, thereby requiring the court to delve into individual proof of material, reliance and resulting damage; 2) the order decertifying the class as to the breach of express warranty claims was improper because it was rendered in the absence of new law or evidence, and substantively, and the order was contrary to law because it improperly grafted an element of prior reliance onto the express warranty claims and this error infected the entire ruling as to those claims.  

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Appellate Information

Filed January 7, 2010

Judges

Opinion by Judge Reardon

Counsel
For Appellant:   Duane Morris, Bullivant Houser Bailey, Paul D. Nelson

For Appellee:   Horvitz & Levy, Lisa Perrochet, John A. Taylor, Jr., Shea Stokes Roberts & Wagner, Maria C. Roberts

Le v. Pham, No. G041473

In plaintiffs' suit against defendant-shareholder involving a dispute over the transfer of shares of a pharmacy, judgment of the trial court is affirmed to the extent it exonerated the third party but is reversed to the extent that it holds that the plaintiffs did not breach any fiduciary duty to defendant as, where the bylaws of a pharmacy corporation provide that one shareholder must give another a right of first refusal on the sale of any stock, it is a breach of fiduciary duty for the selling stockholder to attempt to sell to a third party in violation of the right of first refusal. 

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Appellate Information

Filed December 31, 2009

Judges

Opinion by Judge Sills

Counsel
For Appellant:   Ashton R. Watkins

For Appellee:   The Amin Law Group, Ismail Amin, Tenny C. Rostomian-Amin, and Jeffrey R. Groendal

Junkin v. Golden W. Foreclosure, No. A124374

In plaintiff's action seeking damages for wrongful foreclosure and usurious interest against defendants, including a fellow investor, judgment in favor of defendants is affirmed where: 1) the trial court correctly ruled that the joint venture exception to the usury rules applied as there is strong evidence that a joint venture existed between plaintiff and the fellow investor; and 2) since the transaction was not usurious, it follows that the foreclosure sale was properly conducted. 

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Appellate Information

Filed January 6, 2010

Judges

Opinion by Judge Jones

Counsel
For Appellant:   David M. McKim

For Appellee:   Cheryl C. Rouse and Jonathan G. Chance

Priceline.com Inc. v. City of Anaheim, No. G041338

In plaintiff's request for writ of mandamus seeking to compel the City of Anaheim to litigate tax assessment proceedings without the assistance of outside counsel retained pursuant to a contingency fee agreement claiming that the fee arrangement violates a government lawyer's duty of neutrality, trial court's denial of the writ petition is affirmed as, Clancy does not bar contingency fee lawyers from assisting government lawyers as co-counsel in ordinary civil litigation such as this, and the tax assessment proceeding is a civil administrative action that does not require the delicate weighing of values described in Clancy.   

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Appellate Information

Filed January 5, 2010

Judges

Opinion by Judge Ikoa

Counsel
For Appellant:   Skadden Arps Slate Meagher & Flom, Darrel J. Hieber, Stacy R. Horth-Neubert, Daniel M. Rygorsky and Raoul D. Kennedy

For Appellee:   Cristina L. Talley, City Attorney, Moses W. Johnson, Assistant City Attorney

People v. Maikho, No. D055068

In a conviction of defendant for misdemeanor fishing offenses, trial court's grant of defendant's motion to suppress evidence is affirmed where: 1) the language of Fish and Game Code section 1006 does not provide for the inspection of vehicles by the Department of Fish and Game (DFG); 2) neither Perez nor any of the other cases are persuasive that it may be fairly implied from section 1006 and 2012 that it is necessary for the DFG to conduct traffic stops and inspections of specific vehicles on public streets to accomplish the express powers granted to it by those statutes; and 3) based on the review of the totality of the circumstances that the DFG warden did not have, at the time of the traffic stop, specific and articulable facts causing him to suspect some activity relating to crime had taken place and defendant was involved in that activity.   

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Appellate Information

Filed January 5, 2010

Judges

Opinion by Judge Rubin

Counsel
For Appellant:    Jan I. Goldsmith, City Attorney, David P. Greenberg, Assistant City Attorney, Monica A. Tiana, Deputy City Attorney

For Appellee:   Steven J. Carroll, Public Defender, Randy Mize, Chief Deputy Public Defender, Gary R. Nichols and Matthew Braner. Deputy Public Defenders

Fink v. Shemtov, No. G041557

In an underlying suit for breach of contract and fraud, trial court's order declaring plaintiff a vexatious litigant under Code of Civil Proc. section 391(b)(1) and a pre-filing order pursuant to section 391.7 is affirmed as, the trial court did not err because plaintiff had suffered an adverse final determinaiton in at least six separate litigations that he commenced in propria persona within the immediate seven-year period preceding the trial court's orders.   

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Appellate Information

Filed December 30, 2009

Judges

Opinion by Judge Fybel

Counsel
For Appellant:   David Fink, pro per

For Appellee:   N/A

In a junior lien holder's action against the defendant for conducting a nonjudicial foreclosure sale that resulted in excess sale proceeds, judgment of the trial court in favor of the lien holder is reversed as, the comprehensive statutory scheme regarding nonjudicial foreclosures clearly delineates the limited role and duties of a trustee in a nonjudicial foreclosure sale, and those duties do not include the responsibility for searching and finding all possible judgment creditors.   

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Appellate Information

Filed January 5, 2010

Judges

Opinion by Judge O'Leary

Counsel
For Appellant:   Sam M. Muriella

For Appellee:   Serlin & Whiteford, Kevin P. Whiteford

Cellphone Termination Fee Cases, No. A122765

In a class action lawsuit against Sprint alleging that cell phone handsets sold by the defendant-company secretly had been locked with programming locks to prevent the use of the phones on other services providers' networks, judgment of the trial court is affirmed where: 1) because the trial court's ruling accorded too large a role to objecting class members in the fee setting process, the trial court abused its discretion in refusing to approve the fee arbitration provision where it had already determined that the range of possible fee awards was reasonable and that there was no evidence of collusion by the parties to the settlement; but 2) defendant has failed to show actual prejudice resulted from determination of the amount of the attorney fee award by the court rather than by the arbitrator selected by the parties.     

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Appellate Information

Filed January 4, 2010

Judges

Opinion by Judge Simons

Counsel
For Appellant:   Bandas Law Firm, P.C., and Christopher A. Bandas; Liuzzi; Murphy & Solomon, LLP, and Frank C. Liuzzi

For Appellee:   Bramson, Plutzik, Mahler & Birkhaeuser, LLP, Robert M. Bramson, Alan R. Plutzik and L. Timothy Fisher; Law Offices of Scott A. Bursor and Scott A. Burson

Town of Tiburon v. Bonander, No. A119918

In plaintiff-property owners' suit against a town challenging its supplemental assessment to place overhead utility lines underground, trial court's judgment in favor of the town is reversed as the supplemental assessment fails to satisfy the proportionality requirement imposed by article XIII D of the California Constitution which mandates that no assessment shall exceed the reasonable cost of the proportional special benefit conferred on a parcel. 

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Appellate Information

Filed December 31, 2009

Judges

Opinion by Judge McGuiness

Counsel
For Appellant:   Frank Mulberg and Brett D. Mulberg

For Appellee:   McDonough Holland & Allen PC, Thomas R. Curry and Andrea S. Visveshwara; Ann R. Danforth, Town Attorney