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

February 2010 Archives

Rulings in anti-SLAPP, Criminal, Employment, and CEQA Cases

The California Court of Appeal for the Fourth District decided a criminal matter, an anti-SLAPP motion, vicarious liability issues, and attorneys fees in an employment case.

In People v. Benitez, No. G041201, the court faced a challenge to defendant's denial of his constitutional right to confrontation when a supervisor was allowed to testify regarding a crime lab analyst's analysis of the substance found on defendant to be methamphetamine.  In light of Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [129 S.Ct. 2527, 174 L.Ed.2d 314], the court reversed defendant's conviction of possession of methamphetamine because the trial court erred in admitting the analysts notes as a business record.

In Daniels v. Robbins, No. G039984, the court faced a challenge to a trial court's grant of an anti-SLAPP motion in plaintiff's action against several attorneys who had represented a client who had sued plaintiff in a prior action.  In affirming the motion, the court held that plaintiff failed to make the required showing that she would probably prevail on the merits and failed to make a prima facie case of malice against the defendants.

In Lobo v. Tamco, No. E047593, the court dealt with the issue of employer's vicarious liability.  In that case, plaintiff brought a wrongful death action claiming that the driver who collided with her husband was acting within the course and scope of his employment at time of the accident.  In reversing trial court's decision, the court concluded that it was err to grant summary judgment where a reasonable trier of fact could find that the "required vehicle" exception does apply.

Rulings in Criminal Cases and a Breach of Contract and Foreclosure Action

The California Court of Appeal for the Fourth District decided a juvenile matter and a civil action brought by a general contractor.  The Sixth District decided whether a mandatory registration requirement for certain sex offenders violated the equal protection.

In In re W.B., No. E047368, the Fourth District faced a juvenile defendant's challenge to the order removing him from his mother's custody and ordering him placed in a foster home, group home, relative home, county or private facitlity.

In upholding that order, the court held that because ICWA excludes deliquencies from its notice requirements, any attempt by the state to expand the Act's application to delinquencies is unauthorized under federal preemption.

In Forsgen Assoc. Inc. v. Pac. Golf Cmty. Dev. LLC., No. E045940, the court decided whether a mechanic's lien attached to certain property in a suit by a general contractor for breach of contract and foreclosure against various defendants. 

The court reversed the judgment of the trial court and held that plaintiff's mechanic's lien did not attach to the entirety of the defendants' property adjacent to the golf course because not all of the adjacent property was required for the convenient use and occupation of the golf course.

In People v. Taravella, No. H033992, the Sixth District faced a constitutional challenge to a mandatory registration requirement of a defendant convicted of oral copulation by a person over the age of 21 with a person under the age of 16.

The court vacated the mandatory requirement and held that there is an equal protection violation where defendant, who is similarly situated to the class of offenders over the age of 21 convicted of nonforcible intercourse with a person under 16, is required to register and those offenders are not.

Related Resources:

Ruling on Apportionment of Former Spouse's Service Credit

In In re Marriage of Sonne, No. S166221, the California Supreme Court faced the issue of whether the community was entitled to the redeposited amount, paid for with community funds, of a service credit earned by the husband during his first marriage. 

In reversing the decision of the court of appeals, the court agreed with the husband that the trial court's apportionment of the service credit arising from the husband's first marriage was in error as that portion earned was his separate property. 

Moreover, because the community funds, used for the redeposit, contributed only to the annuity part of the retirement plan, the community is entitled to a pro tanto share of the annuity only.

Related Resources:

In In re Christopher C., No. B216270, the California Court of Appeal for the Second District faced a father's challenge to a court's order placing six of seven children in the care of DCFS and an order of reunification services for the parents that included psychotherapy, counseling, and monitored visitation with the children.

As stated in the decision: "Without objection, the court amended the petition by interlineation to add the following allegation pursuant to subdivisions (b) and (c). 'There exists a severe dysfunction within the family resulting in an ongoing & severe family law conflict, resulting in a cross allegations of sexual abuse, physical abuse, and 'coaching' and there also exists evidence of the failure of the mother and father to properly supervise the children, all of which places the children at risk of serious physical and emotional harm."

Based on the evidence and the family history of DCFS interventions, the court found that there was sufficient evidence to support the juvenile court's jurisdictional findings and also ruled that the father forfeited his claim that an amended petition did not state a cause of action by failing to object at trial.

Related Resources:

 

 

Nonprofit Religious Corporation's Notice of Appeal Was Timely

In Thiara v. Pac. Coast Khalsa Diwan Soc'y., No. F0055729, the California Court of Appeal for the Fifth District dealt with defendant's timeliness of notice of appeal involving a writ of mandate compelling a nonprofit religious corporation to permit their members to inspect the corporation's membership list, books, and records.

The court held that the defendant's notice of appeal was filed timely because they were required to file their notice of appeal within 180 days after entry of judgment under the circumstances rather than 60 days.

Related Resources:

In Interstate Fire & Cas. Ins. Co. v. Cleveland Wrecking Co., No. A124920, the California Court of Appeal for the First District dealt with plaintiff's complaint for subrogation against defendant arising from an underlying lawsuit involving an injury of a worker at the parties' construction site.

In reversing the trial court's sustaining of defendant's demurrer of the complaint, the court first determined that a good faith settlement between defendant and the injured worker does not bar plaintiff from pursuing its cause of action for express contractual indemnification against defendant. 

Next, the court analyzed each element set forth in Fireman's Fund Ins. Co. v. Maryland Cas. Co., 65 Cal.App.4th, and concluded that plaintiff's allegations established each of the elements for subrogation.

Related Resources:

Confirmation of Arbitration Award Upheld

In Oaktree Capital Mgmt., LP. v. Bernard, No. B207865, the California Court of Appeals for the Second District faced defendant's challenge to the arbitrator's award of $12.3 million in damages and $6.7 million in attorneys fees in favor of defendant's former real estate investment hedge fund for breach of his fidiciary duties.

As stated in the decision: "The law narrowly circumscribes judicial review of an arbitration award.  Proper grounds for vacating an arbitrator's award are statutory and limited...An award reached by an arbitrator pursuant to a contractual agreement to arbitrate is not subject to judicial review except on the grounds set forth in Code of Civil Procedure sections 1286.2."

Thus, in rejecting defendant's claim that the arbitrator exceeded her powers, the court held that the arbitrator's finding was a legal conclusion based on disputed evidence, which may not be reviewed even if the she was mistaken. 

Related Resources:

In Burton v. Sup. Ct., No. C062419, the California Court of Appeal for the Third District addressed the issue of whether a criminal defendant, sentenced to death or life without the possibility of parole, may obtain discovery materials from the superior court without representation by an attorney pursuant to section 1054.9.

As stated in the decision: "Nothing in the language of section 1054.9 limits the statute to defendants who are currently represented by counsel...Rather, subdivision (a) of section 1054.9 provides that, if conditions are satisfied, the court shall...order that the defendant be provided reasonable access to any of the materials described in subdivision(b)."

In granting defendant's petition for a writ of mandate, the court vacated the trial court's order and held that there is no statutory requirement that a defendant be represented by an attorney at the time he pursues a section 1054.9 motion.

Related Resources:

Court Rejects Criminal Defendant's Challenge to His Conviction

In People v. Hernandez, No. F056015, the California Court of Appeal for the Fifth District was faced with various challenges by a defendant convicted of discharging a firearm from a motor vehicle at another person arising from a gang-related killing.

In the published portion of the opinion, the court dealt with defendant's claimed error that the trial court misinstructed the jury by omitting the mental state element with respect to Pen. Code section 12034, subdivision (c).

The Court affirmed the conviction in concluding that trial court did not commit an error as the instructions on aiding and abetting correctly conveyed the requisite mental state of an aider and abettor.

Related Resource:

In Suh v. Sup. Ct., No. B219174, the court of appeals was asked to review an order by the trial court compelling arbitration involving anesthesiology contracts entered into by the plaintiffs (anesthesiologists) with a hospital, arising from plaintiffs' lawsuit against a hospital  alleging various causes of action including, age and national discrimination.

First, the court concluded that there was no evidence that plaintiffs were ever signatories to the agreement, and that as shareholders of a corporation, plaintiffs did not sign the agreement individually nor on behalf of the corporation. 

In granting plaintiffs' petition for writ of mandate, the court held that they did not agree to arbitrate disputes relating to one of the contracts and that the terms of the arbitration clause in the other contract are unconscionable, rendering the agreement to arbitrate unenforceable. 

Related Resources:

In Full text of McCarther v. Pac. Telesis Group, No. S164692, the California Supreme Court was faced with the question of statutory construction concerning Labor Code section 233 arising from plaintiffs' suit against their employers for being denied paid for leave to care for plaintiffs' relatives. 

In reversing Court of Appeals' decision in favor of the plaintiffs finding that defendants' sickness absence policy constituted a sick leave within the meaning of section 233, the Court explained the statute as follows: "The statute does not apply to any and all forms of compensated time off for illness, but only to 'sick leave' as defined by the statute and only in the amount specified.  The facts...indicate[] that the reach of the statute is limited to employers that provide a measurable, banked amount of sick leave."

Thus, the court held that Labor Code section 233 does not apply to paid sick leave policies that provide for an uncapped number of compensated days off. 

Related Resources:

Choice-of-Law Issue Addressed In Asbestos Case

In McCann v. Foster Wheeler, LLC, No. S162435, the Court dealt with the choice-of-law issue arising in plaintiff's lawsuit against a manufacturer of large boilers, alleging that exposure to asbestos during a two week period in 1957 caused his mesothelioma.

In concluding that the Court of Appeals erred in holding that California law applies to the case rather than Oklahoma law, the Court explained: "In the event [defendant] were to be denied the protection afforded by the Oklahoma statute of repose and be subjected to the extended timeliness rule embodied in California law, the subordination of Oklahoma's interest in the application of its law would rest solely upon the circumstance that after defendant engaged in the allegedly tortious conduct in Oklahoma, plaintiff happened to move to a jurisdiction whose law provides more favorable treatment to plaintiff than that available under Oklahoma law."

Thus, the Court found that Oklahoma's interest (as embodied in its statute of repose) would be more impaired if its law were not applied under the circumstances of this case than would be California's interest if  its statute of limitations is not applied. 

Related Resources:

 

 

People v. Lexington Nat'l Ins. Corp (Bail Bond Forfeiture)

In People v. Lexington Nat'l Ins. Corp., the California Court of Appeals for the Fourth District faced a challenge to the trial court's denial of surety's motion to vacate bail bond forfeiture and to reinstate and exonerate a bail bond where the defendant was held in custody in another state.

As stated in the decision: "Upon Lexington's motion pursuant to section 1305 and its assertion of the defendant's incarceration in another state during the relevant time period and thus his apparent disability, the trial court was obligated to assess the disability and, if found, to order the appropriate relief."

Thus the court held that, since the trial court's denial of exoneration implicitly indicated that it was not satisfied the disability was permanent, the disability was necessarily temporary, and as such, the court was compelled by the statutory scheme to consider and grant a tolling based on the temporary nature of the disability. 

Related Resources:

Forecast Homes, Inc. v. Steadfast Ins. Co.

In Forecast Homes, Inc. v. Steadfast Ins. Co., G040876, the California Court of Appeals for the Fourth District addressed the issue of whether the self-insured retention (SIR) provision in the insurance policy purchased by subcontractors allowed for indemnity to the general contractor.

The Court affirmed the trial court's holding that, in looking at the pertinent forms of the policy, only the named insured subcontractors, not plaintiff, had the right to satisfy the SIR per occurrence amounts and defendant's defense obligation had not been triggered. 

In affirming the judgment in favor of the defendant, the Court also ruled that the SIR endorsements did not violate public policy and were not illusory. 

Related Resources:

Full Text of Forecast Homes, Inc. v. Steadfast Ins. Co.

In People v. Ayala, No. A122412, the California Court of Appeals for the Fourth District faced a challenge to the sufficiency of the evidence to support a second-degree murder conviction under the natural and probable consequences doctrine.

The court stated: "the fatal shooting was a natural and probable consequence of a planned physical attack by multiple gang members upon perceived rival gang members even though the shooting occurred at the start of the confrontation and no assault with fists, baseball bats, knives, or other weapons preceded the shooting. A defendant may be convicted under the natural and probable consequences doctrine even if the target criminal act (here, allegedly assault with a baseball bat) was not committed."

The Court affirmed the conviction in concluding that defendant participated with fellow gang members in a planned physical attack upon perceived rival members during which defendant's confederate shot and killed one of the intended victims, and thus, the shooting was a natural and probable consequence of the gang attack. 

Related Sources

 

Estate of Tolman, No. B215644

Denial of a granddaughter's petition to determine persons entitled to distribution from her grandmother's estate is affirmed as the exclusion of unmentioned heirs or relatives from the will's dispositions, or an intent to disinherit those who contest those dispositions, does not sufficiently express or manifest an intent to arrest the operation of the anti-lapse law following a legatee's death.  

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Appellate Information

Filed February 11, 2010

Judges

Opinion by Judge Lichtman

Counsel
For Appellant:  Robert A. Clinco

For Appellee:   Law Offices of Peggi Collins, Peggi Collins; Law Offices of Lawrence M. Markey, Jr., and Lawrence M. Markey, Jr.

In plaintiffs' action against the state of California, through the Department of Personnel Administration (DPA), claiming that the state refused to grant correctional supervisors of a bargaining unit the same increases granted to the rank-and-file correctional officers they supervise, a ruling in favor of defendant is affirmed as plaintiffs failed to establish any violation of Gov. Code section 19849.18. 

Read  California Corr. Peace Officers' Ass'n v. State of California, No. A124221 [HTML]

Read  California Corr. Peace Officers' Ass'n v. State of California, No. A124221 [PDF]

Appellate Information

Filed February 11, 2010

Judges

Opinion by Judge Ruvolo

Counsel
For Appellant:  Carroll, Burdick & McDonough, Gregg McLean Adam and Gonzalo C. Martinez, California Correctional Peace Officers' Association, Daniel M. Lindsay

For Appellee:   Department of Personnel Administration State of California; K. William Curtis, Chief Counsel; Warren C. Stracener, Deputy Chief Counsel; Linda A. Mayhew, Assistant Chief Counsel; Christopher E. Thomas, Labor Relations Counsel

Anderson v. Chikovani, No. G042396

In a medial malpractice action, defendant's motion to dismiss the appeal is denied as, where a party files a valid motion for new trial, and the trial court issues a timely order denying that motion but no one serves the order or notice of entry of that order, then the applicable deadline for filing the notice of appeal from the judgment is 180 days after entry of judgment. 

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Appellate Information

Filed February 11, 2010

Judges

Opinion by The Court

Counsel
For Appellant:  Schultz and Associates and Robert Schultz

For Appellee:   Carroll, Kelly, Trotter, Franzen & McKenna, Robert L. McKenna, David P. Pruett and Maria E. Pappas

In mandamus proceedings challenging a county's approval of trail developments by Stanford University, arising from the university's application for a permit to add buildings on its campus in 2000, decision of the Court of Appeals is reversed as the filing of a notice of determination (NOD) triggers a 30-day statute of limitations for all CEQA challenges to the decision announced in the notice, and here, the Committee filed its petition more than 30 days after the County reported its approval of the trails agreement in an NOD. 

Read  Comm. for Green Foothills v. Santa Clara County Bd. of Supervisors, No. S163680 [HTML]

Read  Comm. for Green Foothills v. Santa Clara County Bd. of Supervisors, No. S163680 [PDF]

Appellate Information

Filed February 11, 2010

Judges

Opinion by Judge Corrigan

Counsel
For Appellant:  Wittwer & Parkin, William P. Parkin and Jonathan Wittwer

For Appellee:    Ann Miller Ravel, County Counsel, Miguel Márquez, Acting County Counsel, and Lizanne Reynolds, Deputy County Counsel

People v. Soria, No. S164796

Following defendant's conviction for multiple crimes committed on different dates, decision of the Court of Appeals reversing trial court's imposition of separate restitution fines is reversed as defendants who commit multiple crimes, and are consequently before the court in multiple cases when their pleas are taken, are properly subject to multiple fines.  

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Appellate Information

Filed February 11, 2010

Judges

Opinion by Judge Corrigan

Counsel
For Appellant:  Jeffrey A. Glick

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

People v. Reynolds, No. E047192

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

Read  People v. Reynolds, No. E047192   [HTML]

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Appellate Information

Filed February 10, 2010

Judges

Opinion by Judge Ramirez

Counsel

Appellant:  Rudy Kraft

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

People v. Paz, No. G041327

Conviction of defendant for drug related crimes is affirmed as a defendant who disposes of contraband not out of scruple, but because of the threat of bodily harm or police apprehension cannot invoke People v. Mijares, 6 Cal.3d 415 (1971) (standing for the proposition that under certain limited circumstances, momentary possession of contraband is not legally culpable). 

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Appellate Information

Filed February 10, 2010

Judges

Opinion by Judge Bedsworth

Counsel

Appellant:  Richard Schwartzberg

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

Kuish v. Smith, No. G040743

In plaintiff's suit against defendants to recover $620,000 deposit after he unilaterally canceled escrow, arising from an agreement to purchase defendants' beach residence for $14 million, trial court's judgment in favor of defendants is reversed and remanded where: 1) in a rising market, the seller of real property is limited to the recovery of consequential damages and interest against the buyer who breached the purchase agreement; 2) defendants' retention of plaintiff's deposit in the circumstance of a rising market, presented here, constituted an invalid forfeiture under Freeman v. Rector; and 3) the trial court erred by concluding defendants were entitled to plaintiff's deposit as separate and additional consideration for defendants' agreements to extend escrow. 

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Appellate Information

Filed February 10, 2010

Judges

Opinion by Judge Fybel

Counsel
For Appellant:   Samuels, Green & Steel and Philip W. Green

For Appellee:  Prenovost, Normandin, Bergh & Dawe, Michael G. Dawe and Paula M. Harrelson

People v. Sanderson, No. E047284

Conviction of defendant for making criminal threats is affirmed as the trial court was acting within its discretion in denying defendant's Pitchess motion to the extent that it made a common sense determination that defendant's version of events was not plausible based on a reasonable and realistic assessment of the facts and allegations. 

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Appellate Information

Filed February 9, 2010

Judges

Opinion by Judge Miller

Counsel
For Appellant:  Christopher Nalls

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

People v. Trujillo, No. E045598

Conviction of defendant for assault with a semiautomatic firearm and related crimes for firing shots at another moving car is affirmed as the evidence is sufficient to support convictions for assault with a semiautomatic firearm as to both occupants of a car even if defendant did not actually see the backseat passenger. 

Read   People v. Trujillo, No. E045598 [HTML]

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Appellate Information

Filed February 9, 2010

Judges

Opinion by Judge King

Counsel
For Appellant: Kristin A. Erickson

For Appellee:  Edmund G. Brown, Jr. Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, Marilyn L. George, Deputy Attorneys General

In re Noreen G., No. A122651

Trial court's judgment granting guardians' petition to declare two minors free from the care, custody, and control of their biological parents and granting the parents visitation rights is affirmed in part, reversed in part and remanded where: 1) Probate Code section 1516.5 does not have any constitutional infirmities; 2) no denial of the right to counsel occurred; 3) any deficiencies in the investigator's report were not prejudicial to the parents; 4) the evidence amply supports the termination of parental rights; 5) the case is remanded to comply with the inquiry provisions of the ICWA; and 6) the trial court's order granting visitation rights to the parents must be reversed as it was in excess of the trial court's authority.  

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Appellate Information

Filed February 9, 2010

Judges

Opinion by Judge Dondero

Counsel
For Appellant:  Fishel & Fishel, James J. Fishel

For Appellee:  N/A

Chacon v. Litke, No. A122026

In a wrongful eviction action, judgment in favor of plaintiffs-tenants concluding that defendants violated the San Francisco Rent Stabilization and Arbitration Ordinance is affirmed where: 1)  defendants' interpretation of the Ordinance as conditioning a tenant's right to reoccupy the unit upon compliance with a 60-day notice is rejected; 2) substantial evidence supports the trial court's finding that the stipulation gave defendants temporary possession of the apartment for up to three months to make repairs and the plaintiffs retained their rights under the Ordinance to reoccupy the premises; 3) the litigation privilege did not apply to defendant's conduct in refusing to allow the plaintiffs to reoccupy the apartment; 4) trial court did not err in granting judgment on the pleadings on the affirmative defenses; and 5) trial court did not abuse its discretion in awarding plaintiffs' attorney's fees.   

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Appellate Information

Filed February 9, 2010

Judges

Opinion by Judge Kline

Counsel
For Appellant:  Lewis Brisbois Bisgaard & Smith LLP, Howard L. Churchill, Michael K. Johnson, Kimberly Pile, Sandra M. Ishaq

For Appellee:   Reed Smith LLP, Paul D. Fogel, Paymond A. Cardozo, David J. de Jesus, Law Office of Jonathan McCurdy, Jonathan McCurdy, and Wartelle Weaver & Schreiber, Paul F. Wartelle

In re David V., No. S167716

Court of appeals' decision upholding the juvenile court's decision sustaining a petition charging juvenile defendant with possession of metal knuckles is reversed as a cylindrical object like the (bicycle) footrest in this case is not a device "worn...in or on the hand," under the definition of "metal knuckles" provided in Penal Code section 12020(c)(7).     

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Appellate Information
Appeal from Los Angeles County, No. PJ41304

Filed February 8, 2010

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

Opinion by Corrigan, J.

Counsel
For Appellant:  John A. Colucci

For Appellee:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters, James William Bilderback II, Lawrence M. Daniels and David Zarmi, Deputy Attorneys General

People v. Superior Ct., No. S164614

In a prosecution of defendant for felony murders, judgment of a court of appeal setting aside a superior court's ruling prohibiting the prosecution at issue based on the doctrine of nonmutual collateral estoppel is affirmed where: 1) a verdict regarding one defendant has no effect on the trial of a different defendant, and courts should determine the propriety of a prosecution based on that prosecutions' own record, not a different record; and 2) nonmutual estoppel does not apply to verdicts in criminal cases. 

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Appellate Information
Appeal from Yuba County, No. CFR0600126

Filed February 8, 2010

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

Opinion by Chin, J.

Counsel
For Appellant:  Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael Farrell, Assistant Attorney General, John G. McLean, R. Todd Marshall, George M. Hendrick, Deputy Attorneys General

For Appellee:  N/A

In re Stephon L., No. B215402

Juvenile court's order finding a minor in violation of probation in connection with a sustained petition under Welfare and Institutions Code section 602 is affirmed as modified where: 1) the appeal is not moot regardless of the expiration of the minor's camp commitment because his maximum period of physical confinement has not expired; and 2) the minor is entitled to credit for all actual time spent in custody in connection with either petition because his maximum period of physical confinement for the two section 602 petitions was aggregated.     

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Appellate Information

Filed February 8, 2010

Judges

Opinion by Judge Mosk

Counsel
For Appellant:   Lisa Holder

For Appellee:   Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, Joseph P. Lee, Deputy Attorney General

Vanguard Car Rental USA, Inc. v. County of San Mateo, No. A122975

In plaintiff's challenge to a county's assessment of ad valorem property taxes on certain areas leased in common by plaintiff within a rental car facility at San Francisco International Airport, judgment of the trial court is affirmed where: 1) plaintiff had the right to actual and physical occupation of the spaces areas pursuant to rights not granted to the general public, and therefore "possessed" or had a "right to possess" the spaces; 2) plaintiff retained sufficient authority and control over the spaces for its use to qualify as "independent"; and 3) plaintiff's rights under the National and Alamo leases were sufficiently "exclusive" to establish its possessory interests and to permit taxation.         

Read   Vanguard Car Rental USA, Inc. v. County of San Mateo, No. A122975 [HTML]

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Appellate Information

Filed February 8, 2010

Judges

Opinion by Judge Bruiniers

Counsel
For Appellant:   Van Loon & Associates, Paul L. Van Loon

For Appellee:   Michael P. Murphy, County Counsel, Lee A. Thompson, Deputy County Counsel

In re Rebecca S., No. B216227

Juvenile court's visitation order is reversed where it was an abuse of discretion to delegate to the children's legal guardian the determination of the details of his visits with his children, and the matter is remanded to the juvenile court with directions to specify the frequency and duration of the father's visits.     

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Appellate Information

Filed February 8, 2010

Judges

Opinion by Judge Chaney

Counsel
For Appellant:   Linda Rehm

For Appellee:   James M. Owems, Assistant County Counsel, Byron G. Shibata, Associate County Counsel

Jaimez v. Daiohs USA, Inc., No. B209486

In plaintiff's suit against defendant employer seeking recovery of unpaid wages, denial of plaintiff's motion for class certification and subsequent motion for leave to amend complaint to substitute new class representative is affirmed in part and reversed in part where: 1) except as to a finding that plaintiff is not an adequate class representative, trial court did not apply the applicable criteria as it is evident that common legal and factual issues predominate over any individual issues with respect to the meal and rest break claims; and 2) denial of motion for leave to file the First Amended Complaint is reversed with directions to file it nunc pro tunc.     

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Appellate Information

Filed February 8, 2010

Judges

Opinion by Judge Johnson

Counsel
For Appellant:  Law Office of Joseph Antonelli, Joseph Antonelli, Janelle C. Carney, Law Office of Kevin T. BarnesGregg Lander

For Appellee:   Sheppard Mullin Richter & Hampton, Tracey A. Kennedy, Jason W. Kearnaghan, Kevin M. Rivera

In plaintiff's mandamus proceeding seeking to compel defendant California Unemployment Insurance Appeals Board to set aside its reassessment decision that plaintiff's workers were employees and not independent contractors, superior court's judgment is affirmed where: 1) the California Constitution has granted to the Legislature the power to prescribe the manner of proceeding in an action to recover a tax paid; 2) plaintiff has failed to exhaust its administrative remedies by waiting for a decision from the Appeals Board regarding the petition for review of the denial of the claim for refund; 3) case law and statutory law do not establish the right to judicial review of the Appeal Board's reassessment decision; and 4) the ability to petition for refund in the courts is an adequate remedy at law.     

Read  Merch. Concept Group, Inc. v. California Unemployment Ins. Appeal Bd., No. C060372 [HTML]

Read  Merch. Concept Group, Inc. v. California Unemployment Ins. Appeal Bd., No. C060372 [PDF]

Appellate Information

Filed February 8, 2010

Judges

Opinion by Judge Robie

Counsel
For Appellant:  Chris A. Schaefer

For Appellee:   Edmund G. Brown, Jr., Attorney General, Paul D. Gifford, Assistant Attorney General, William L. Carter and Amy J. Winn, Deputy Attorneys General

Bardales v. Duarte, No. D048239

In a mother's petition seeking return of her children under the Hague Convention alleging that the father wrongfully retained the two older children and wrongfully removed the two younger children to the United States in violation of the Convention, the judgment of the trial court is affirmed where: 1) trial court had the power to dismiss the Convention petition for delayed prosecution and proceed on child custody matters; and 2) Convention and  the International Child Abduction Remedies Act do not preclude dismissal of a petition for delayed prosecution.   

Read Bardales v. Duarte, No. D048239 [HTML]

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Appellate Information

Filed February 8, 2010

Judges

Opinion by Judge McConnell

Counsel
For Appellant:  Beverly Baker-Kelly

For Appellee:   Victor Mordey

In re Koehler, No. A125012

In an attorney's petition for a writ challenging a trial court's order of contempt on attorney arising from divorce proceedings, attorney's petition is treated as one for prohibition and granted, and the order of contempt is reversed and annulled as the requisite procedures were not followed and the applicable law was not applied.  

Read  In re Koehler, No. A125012 [HTML]

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Appellate Information

Filed February 5, 2010

Judges

Opinion by Judge Richman

Counsel
For Appellant:  Henry James Koehler, in pro. per.; Barry M. Karl

For Appellee:    Meyers, Nave, Riback, Silver & Wilson, Joseph M. Quinn

Sharabianlou v. Karp, No. A120940

In plaintiff's action seeking rescission of a commercial real estate transaction and tort damages, the portion of the trial court's judgment awarding damages to the original property owners is reversed as the trial court's award goes well beyond the types of damages permitted.     

Read Sharabianlou v. Karp, No. A120940 [HTML]

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Appellate Information

Filed February 5, 2010

Judges

Opinion by Judge Needham

Counsel
For Appellant:   Law Offices Mallette & Libonati and Linda L. Mallette; Thomas P. Murphy; Heather H. Munoz; and Berliner Cohen

For Appellee:     Peterson Martin & Reynolds, P. Kurt Peterson and Ryan L. Werner; Law Offices of Bernard N. Wolf and Bernard N. Wolf; Brian W. Newcolm

Jankey v. Lee, No. A123006

In plaintiff's action against a grocery/liquor store owner claiming discrimination on the basis of his disability because architectural barriers denied him entry to the store, summary judgment in favor of defendant on all causes of action and award of attorney's fees in the amount of $118,458 are affirmed as: 1) the court of appeals rejects the preemption analysis in Hubbard v. SoBreck, LLC, 554 F.3d 742 (9th Cir. 2009); 2) thus, the attorney's fees were properly awarded to defendant as a prevailing defendant under Civ. Code section 55; and 3) the amount of attorney's fees and costs was well within the trial court's discretion. 

Read Jankey v. Lee, No. A123006 [HTML]

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Appellate Information

Filed February 5, 2010

Judges

Opinion by Judge Ruvolo

Counsel
For Appellant:  Thomas E. Frankovich

For Appellee:   Livingston Law Firm, Renée Welze Livingston, Jason G. Gong

Villano v. Waterman Convalescent Hosp., Inc., No. E045796

In plaintiff's action against a convalescent hospital claiming she was admitted without her consent, judgment of the trial court is affirmed where, although a stipulated judgment is appealable, plaintiff cannot show that allegedly erroneous rulings were prejudicial. 

Read Villano v. Waterman Convalescent Hosp., Inc., No. E045796 [HTML]

Read Villano v. Waterman Convalescent Hosp., Inc., No. E045796 [PDF]

Appellate Information

Filed February 5, 2010

Judges

Opinion by Judge Richli

Counsel
For Appellant:  Berglund & Johnson, Gary L. Gebler, Jerrie S. Weiss and Glenna M. Francis

For Appellee:   Lewis Brisbois Bisgaard & Smith, Bryan R. Reid, Rima M. Badawiya, Jeffry A. Miller, Lisa Willhelm Cooney and Matthew B. Stucky

Graffiti Protective Coatings, Inc. v. City of Pico Rivera, No. B213322

In plaintiff's petition for a writ of mandate seeking to invalidate a new contract between defendant-city and its competitor and to compel city to award the contract through competitive bidding, trial court's grant of defendant's anti-SLAPP motion is reversed and remanded as, even if plaintiff's claims involve a public issue, they are not based on any statement, writing, or conduct by the city in furtherance of its right of free speech or its right to petition the government for the redress of grievances.  Rather, plaintiff's claims are based on state and municipal laws requiring the city to award certain contracts through competitive bidding, and thus, the claims are not subject to the anti-SLAPP statute. 

Read Graffiti Protective Coatings, Inc. v. City of Pico Rivera, No. B213322 [HTML]

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Appellate Information

Filed February 5, 2010

Judges

Opinion by Judge Mallano

Counsel
For Appellant:  Rehwald Glasner & Chaleff and William Rehwald

For Appellee:   Alvarez-Glasman & Colvin and Richard H. Lam

Bell v. Bayerische Motoren Werke Aktiengesellschaft, NO. B204184

In plaintiff's action against an automobile maker for negligence and products liability for severe injuries when he lost control of his BMW Z3 roadster convertible on a freeway, judgment of the trial court granting plaintiff's new trial motion but denying a motion for judgment notwithstanding the verdict is affirmed in part and reversed in part where: 1) the trial court prejudicially erred by granting a new trial based on inadmissible statements in juror declarations; 2) the record does not justify a new trial on the grounds stated by the trial court; 3) the new trial order cannot be affirmed on other grounds; and 4) plaintiffs have shown no prejudicial error in the judgment.     

Read  Bell v. Bayerische Motoren Werke Aktiengesellschaft, NO. B204184 [HTML]

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Appellate Information

Filed February 4, 2010

Judges

Opinion by Judge Croskey

Counsel
For Appellant:  Engstrom, Lipscomb & Lack, Lee G. Lipscomb, Robert J. Wolfe, Daniel G. Whalen and Gregory P. Waters

For Appellee:  Lewis Brisbois Bisgaard & Smith, Roy M. Brisbois, Raul L. Martinez and Steven E. Meyer

Harris v. City of Santa Monica, No. B199571

In plaintiff's pregnancy discrimination lawsuit against a city for being fired as a city bus-driver, trial court's judgment in favor of plaintiff is reversed and remanded where: 1) instructional error with respect to a mixed-motive defense entitled defendant-city to retrial; and 2) the instructional error did not entitle the city to judgment notwithstanding the verdict because there was substantial evidence to support the jury's verdict for plaintiff.  

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

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Appellate Information

Filed February 4, 2010

Judges

Opinion by Judge Rubin

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

For Appellee:  Kokozian & Nourmand and Michael Nourmand

In re A.G., No. D053991

Juvenile court's true finding that defendant violated the San Diego curfew ordinance is reversed as, although a more narrowly tailored curfew ordinance is within the legislative prerogative, the present ordinance sweeps too broadly and includes within its ambit otherwise innocent and legal conduct by minors even when they have the permission of their parents, and as such, the ordinance is unconstitutional. 

Read   In re A.G., No. D053991 [HTML]

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Appellate Information

Filed February 4, 2010

Judges

Opinion by Judge McDonald

Counsel
For Appellant:  Heather L. Beugen

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

In re J.N., No. H034242

Juveniles court's judgment ordering three minor children returned home to the care and custody of their mother on a case plan of family maintenance services, and removal from the physical custody of their father on a case plan of family reunification services, is reversed where: 1) the evidence was not sufficient to establish that the children were at substantial risk of serious physical injury as the result of parental inability to adequately supervise or protect the child; and 2) the evidence did not support a finding that each child was within the jurisdiction of the juvenile court under section 300(b). 

Read   In re J.N., No. H034242 [HTML]

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Appellate Information

Filed February 4, 2010

Judges

Opinion by Judge Elia

Counsel
For Appellant:  Sheri Cohen, Roland Simoncini

For Appellee:   Miguel Marquez, Acting County Counsel, Santa Clara County, and Harrison Taylor, Deputy County Counsel

People v. Gomez, NO. B213013

Trial court's judgment revoking defendant's probation and sentencing him to prison is affirmed as, the evidence of the probation report admitted was in the nature of documentary material that is admissible in a probation revocation hearing.     

Read  People v. Gomez, NO. B213013 [HTML]

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Appellate Information

Filed February 4, 2010

Judges

Opinion by Judge Mallano

Counsel
For Appellant:   Joseph T. Tavano

For Appellee:   Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Sarah J. Farhat, Joseph P. Lee and Stephanie C. Brenan, Deputy Attorneys General

Lukather v. Gen Motors, LLC, No. B209979

In plaintiff's suit against General Motors pursuant to the Song-Beverly Consumer Warranty Act, judgment of the trial court in favor of plaintiff is affirmed where: 1) there was sufficient evidence to support the trial court's willfulness finding; 2) defendant provided neither legal authority nor any equitable ground to support its mitigation of damages defense; and 3) defendant failed to show that the trial court abused its discretion in awarding prejudgment interest, attorney's fees and costs. 

Read Lukather v. Gen Motors, LLC, No. B209979 [HTML]

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Appellate Information

Filed February 4, 2010

Judges

Opinion by Judge Mallano

Counsel
For Appellant:   Ruben & Sjolander and David N. Ruben

For Appellee:   Lawrence J. Hutchens

Eulloqui v. Sup.Ct., No. B218578

Defendant's petition for a writ of mandate challenging a trial court's denial of a discovery motion he filed in a habeas proceeding is granted as defendant made a sufficient showing under Brady with respect to one category of information sought in the motion.     

Read Eulloqui v. Sup.Ct., No. B218578 [HTML]

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Appellate Information

Filed February 4, 2010

Judges

Opinion by Judge Mallano

Counsel
For Appellant:   Marilee Marshall

For Appellee:   N/A

Steinhart v. County of Los Angeles, No. S158007

In plaintiff's action against a county seeking a tax refund claiming that, when she received a life estate interest in a residence, no change in ownership occurred within the meaning of Article XIII A, section 2(a) of the California Constitution to trigger reassessment, judgment of the court of appeals' is reversed where: 1) under governing statutes, plaintiff had to apply for assessment reduction even though her claim presents a pure question of law; 2) the futility exception to the exhaustion requirement is inapplicable; 3) the county is not estopped from relying on plaintiff's failure to exhaust remedies; and 4) there was a change in ownership within the meaning of Article XIII A, section 2(a). 

Read Steinhart v. County of Los Angeles, No. S158007 [HTML]

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Appellate Information

Filed February 4, 2010

Judges

Opinion by Judge Chin

Counsel
For Appellant:   Terran T. Steinhart

For Appellee:   Raymond G. Fortner, Jr., County Counsel, and Richard E. Girgado, Deputy County Counsel

Goodman v. Lozano, No. S162655

In plaintiffs' action against various defendants based on construction defects in their new house raising issues regarding the availability of attorney's fees, decision of the court of the appeals affirming the trial court's judgment is affirmed as the majority in Wakefield v. Bohlin, 145 Cal.App.4th 963 (2006), erred by misinterpreting the plain language of "net monetary recovery" and by concluding that settlement offsets do not otherwise affect whether a party has such a "net monetary recovery."  Therefore, the plaintiffs here, ordered to take nothing against nonsettling defendants due to a settlement offset, did not obtain a "net monetary recovery" for purposes of the prevailing party determination. 

Read Goodman v. Lozano, No. S162655 [HTML]

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Appellate Information

Filed February 4, 2010

Judges

Opinion by Judge Chin

Counsel
For Appellant:   Silverstein & Huston, Steven A. Silverstein, Mark W. Huston and Robert I. Cohen

For Appellee:   Law Offices of Craig D. Weinstein Craig D. Weinstein; Spierer, Woodward, Corbalis & Goldberg and Stephen B. Goldberg

People v. Aguilar, No. E047830

Conviction of defendant for first degree burglary is affirmed where: 1) the evidence reasonably supported the jury's finding that the apartment was "inhabited" within the meaning of Penal Code section 459 at the time of the burglary; and 2) the trial court did not abuse its discretion in excluding a building inspector's testimony. 

Read People v. Aguilar, No. E047830 [HTML]

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Appellate Information

Filed February 3, 2010

Judges

Opinion by Judge Ramirez

Counsel
For Appellant: Stephen M. Hinkle

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

Dotson v. Amgen, Inc., No. B212965

In plaintiff's action for wrongful termination, trial court's denial of defendant's motion to compel arbitration on the ground that the provision concerning witness depositions was flawed is reversed as the language permitting the arbitrator to expand discovery upon a showing of need removes any taint of unconscionability from the agreement, and even if it's assumed to be unconscionable, the trial court abused its discretion in refusing to severe it.  

Read Dotson v. Amgen, Inc., No. B212965 [HTML]

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Appellate Information

Filed February 3, 2010

Judges

Opinion by Judge Perren

Counsel
For Appellant:  Paul, Hastings, Janofsky & Walker, James A. Zapp, Paul W. Cane, Jr., Jessica P. Boskovich; Nordman, Cormany, Hair & Compton, Jonathan Fraser Light, Meghan B. Clark

For Appellee:   Law Offices of Rob Hennig and Rob Hennig

People v. Leon, No. H034066

Trial court's imposition of various conditions on defendant's probation following conviction of drug related crimes is modified where: 1) the gang-association probation order is constitutionally defective because it lacks an explicit knowledge requirement; 2) the gang paraphernalia order is modified to include a knowledge requirement; 3) probation order with respect to the areas of gang-related activity is modified as it is constitutionally vague; and 4) the prohibition-from-court-proceedings condition is modified.     

Read People v. Leon, No. H034066 [HTML]

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Appellate Information

Filed February 1, 2010

Judges

Opinion by Judge Bamattre-Manoukian

Counsel
For Appellant:   N/A

For Appellee:  N/A

Basden v. Wagner, No. C057195

Denial of petitioner's request for extraordinary relief, wherein the trial court agreed with the director of the state Department of Social Services that plaintiff was not entitled to any IHSS-funded in-home service provided by her mother is reversed as Welfare & Institutions Code section 12300(e)'s reference to full-time employee does not include providing in-home, full-time, IHSS funded care by a parent to a child so as to bar the parent from being compensated for providing in-home, full-time, IHSS-funded care to another of her children, and to interpret the statute otherwise would frustrate the IHSS programs' very purpose. 

Read Basden v. Wagner, No. C057195 [HTML]

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Appellate Information

Filed February 1, 2010

Judges

Opinion by Judge Nicholson

Counsel
For Appellant:   Charles Wolfinger

For Appellee:  Edmund G. Brown, Jr., Attorney General, Douglas M. Press, Assistant Attorney General, Susan E. Slager and Mateo Muñoz, Deputy Attorneys General

In re Watson, No. D055404

Petition for habeas relief by a defendant convicted of murder and related crimes is granted and his sentence is reversed in part and remanded where: 1) defendant's claim of sentencing error is timely as defendant has shown good cause for any delay in seeking habeas corpus relief based on Cunningham and Apprendi; and 2) defendant's upper term sentences for kidnapping and two firearm use enhancements violated the rule set forth in Apprendi. 

Read In re Watson, No. D055404 [HTML]

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Appellate Information

Filed February 1, 2010

Judges

Opinion by Judge McIntyre

Counsel
For Appellant:   Todd William Burns

For Appellee:  Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Anthony Da Silva, Deputy Attorney General

In re J.V., No. E047553

Juvenile court's imposition of a requirement for gang registration under Penal Code section 186.30 is affirmed where: 1) the juvenile court did not abuse or fail to exercise its discretion in finding defendant's violation of the gang injunction was gang related under section 186.30 and requiring him to register; and 2) defendant cannot demonstrate prejudice by showing he would not have entered into the plea if he had received an advisement about gang registration.   

Read In re J.V., No. E047553 [HTML]

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Appellate Information

Filed February 1, 2010

Judges

Opinion by Judge Gaut

Counsel
For Appellant:   John D. O'Loughlin

For Appellee:  Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Teresa Torreblanca, Deputy Attorneys General

Brown Winfield & Canzoneri, Inc. v. Sup. Ct., No. S156598

In writ proceedings arising from parties' insurance coverage dispute, a court of appeals' dismissal of the writ proceeding is affirmed as the court of appeal did not err in dismissing its August 28, 2007 order comprising the "suggestive" Palma notice at issue, and subsequent settlement of the litigation underlying the petition rendered moot the relief sought in that petition. It is not improper for an appellate court to issue a "suggestive" Palma notice, and further, it may do so without first having received or solicited opposition from the real party in interest. However, if a trial court decides on its own motion to revisit its interim ruling in response to a suggestive Palma notice -- an action within its inherent authority -- then it must inform the parties of its intent to do so, and provide them with an opportunity to be heard. 

Read Brown Winfield & Canzoneri, Inc. v. Sup. Ct., No. S156598 [HTML]

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Filed February 1, 2010

Judges

Opinion by Judge George

Counsel
For Appellant:  Bingham McCutchen, Bruce A. Friedman, Kenneth S. Meyers, Gina M. Simas; Shernoff Bidart Darras & Echeverria, Michael J. Bidart, Ricardo Echeverria; The Ehrlich Law Firm and Jeffrey Isaac Ehrlich

For Appellee:  Cochran, Davis & Associates, Joan E. Cochran; Thompson & Alessio, Kris P. Thompson and Jeffrey K. Miyamoto

In re E.J., No. S156933

In a unified habeas petition by four registered sex offenders challenging the constitutionality of a provision in the Jessica Law, that sets forth restrictions on where certain registered sex offenders subject to the lifetime registration requirement may reside, is transferred to the courts of appeal for further proceedings where: 1) the court rejects claims that Penal Code section 3003.5(b), construed as a statutory parole condition, is being impermissibly retroactively enforced as to the petitioners, and as thus enforced, constitutes an ex post facto law under the state and federal constitutions; and 2) with regard to defendants' remaining claims that section 3003.5(b) is an unreasonable, vague and overbroad parole condition that infringes on a number of their fundamental constitutional rights, evidentiary hearings will have to be conducted to establish relevant facts necessary to decide each such claim.  

 Read In re E.J., No. S156933 [HTML]

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Filed February 1, 2010

Judges

Opinion by Judge Baxter

Counsel
For Appellant:  Prison Law Office, Donald Specter, Vibeke Norgaard Martin, Rachel Farbiarz; Rosen, Bien & Galvan, Ernest Galvan, Nura Maznavi, Loren Stewart and Shirley Huey

For Appellee:  Mennemeier, Glassman & Stroud, Kenneth C. Mennemeier and Kelcie M. Gosling

Trial court's holding that the Rent Stabilization and Eviction for Good Cause Ordinance (RSO), adopted by the citizens of the City of East Palo Alto, permitted recovery of attorney fees by a landlord in successful litigation against the city is reversed as the intent of the electorate was that section 15.A.5 of the RSO authorize the recovery of attorney fees only in civil proceedings between landlords and tenants to enforce their respective rights under the RSO, and no other provision of the RSO provides for an award of fees against the city. 

Read Woodlands Park Mgmt., LLC. v. City of E. Palo Alto Rent Stabilization Bd., No. A124154 [HTML]

Read Woodlands Park Mgmt., LLC. v. City of E. Palo Alto Rent Stabilization Bd., No. A124154 [PDF]

Filed February 1, 2010

Judges

Opinion by Judge Bruiniers

Counsel
For Appellant:  Vincent Ewing, City Attorney, Rafael E. Alvarado, Jr., Assistant City Attorney; Jarvis Fay Doporto & Gibson, Julie M. Randolph, Andrea J. Saltzman, Rick W. Jarvis

For Appellee:   Ellman Burke Hoffman & Johnson, Christine W. Griffith, Ivo Keller; Zacks Utrecht & Leadbetter, Andrew M. Zacks, Paul F. Utrecht

People v. Navarrete, No. B210691

Conviction of defendant for committing a lewd act upon a child is reversed for retrial because of willful misconduct on the witness stand by a police officer who, in front of the jury, intentionally violated a court order suppressing a statement by defendant. 

Read People v. Navarrete, No. B210691 [HTML]

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Filed February 1, 2010

Judges

Opinion by Judge Rubin

Counsel
For Appellant:   Michael M. Crain

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

People v. Delgado, No. G041561

Conviction of defendant for sexual offenses against two minors is affirmed where: 1) Penal Code section 784.7 allows prosecution of defendant's sexual offenses in any county where any of the offenses occurred; 2) applying section 784.7 to defendant does not violate the constitutional ban against ex post facto laws; 3) the Los Angeles County offenses were timely prosecuted within one year of the victim's report to the police; 4) juror taint and due process claims are baseless and, in any event, harmless; but 5) defendant's sentence is reversed and remanded where the court was required to impose full, consecutive, determinate terms on two counts of committing forcible lewd acts on a child under 14. 

Read People v. Delgado, No. G041561 [HTML]

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Filed February 1, 2010

Judges

Opinion by Judge Ikola

Counsel
For Appellant:   Patrick Morgan Ford

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

Catsouras v. Dep't of the California Highway Patrol, NO. G039916

In an action brought against the State of California Highway Patrol and two of its officers by the family of a decedent who died in an automobile accident, judgment of the trial court in favor of the defendants is reversed where: 1) the trial court erred in sustaining the officers' demurrers as to the invasion of privacy cause of action for dissemination of the pictures of decedent's decapitated body, as family members have a common law privacy right in the death images of a decedent, subject to certain limitations; 2) the trial court erred in sustaining the demurrers as to a cause of action for intentional infliction of emotional distress as plaintiffs' allegation that the officers had acted with the intent to cause them emotional distress, is sufficient to withstand a demurrer; 3) the trial court erred in concluding that plaintiffs had no cause of action for negligence as, applying the Rowland factors, CHP and its officers owed plaintiffs a duty of care not to place decedent's death images on the internet for the purposes of vulgar spectacle; 4) trial court properly sustained the demurrer of the CHP as to the section 1983 cause of action against it based on the doctrine of sovereign immunity; and 5) the section 1983 causes of action against the officers also fail as plaintiffs did not plead facts sufficient to allege that the actions of the officers violated any clearly established constitutional right. 

Read Catsouras v. Dep't of the California Highway Patrol, NO. G039916 [HTML]

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Appellate Information

Filed February 1, 2010

Judges

Opinion by Judge Moore

Counsel
For Appellant:   Bremer, Whyte, Brown & O'Meara, Keith G. Bremer and Tyler D. Offenhauser; Everett L. Skillman

For Appellee:   Edmund G. Brown, Jr., Attorney General, James Humes, Chief Assistant Attorney General, James M. Schiavenza, Assistant Attorney General, Joel A. Davis, Theodore B. Zinger and Elizabeth S. Angres, Deputy Attorneys General; Schlueter & Schlueter and Jon R. Schlueter; R. Rex Parris Law Firm, R. Rex Parris, Alexander R. Wheeler, and Jason P. Fowler

People v. Sisuphan, No. A122351

Conviction of defendant for embezzlement for taking almost $30,000 from his employer's safe is affirmed where: 1) Penal Code section 512 does not provide a defense to embezzlement; and 2) trial court's evidentiary ruling was proper as even if the proffered evidence shows defendant took the money for another purpose, it does not prove he lacked fraudulent intent. 

Read People v. Sisuphan, No. A122351 [HTML]

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Appellate Information

Filed January 29, 2010

Judges

Opinion by Judge Jenkins

Counsel
For Appellant:  William L. Osterhoudt, Dolores T. Osterhoudt

For Appellee:    Edmund G. Brown Jr. Attorney General of California, Gerald A. Engler Senior Assistant Attorney General, Stan Helfman Supervising Deputy Attorney General, Jeffrey M. Laurence, Deputy Attorney General

Lhotka v. Geographic Expeditions, Inc., No. A123725

Trial court's denial of defendant's motion to compel arbitration of a wrongful death action brought by the survivors of one of its clients who died on a Mount Kilimanjaro hiking expedition is affirmed where: 1) plaintiffs made a sufficient showing to establish at least a minimal level of oppression to justify a finding of procedural unconscionability; 2) the arbitration clause was so one-sided as to be substantively unconscionable; and 3) it was within the court's discretion to conclude the agreement was so permeated by unconscionability that the interests of justice would not be furthered by severing the damages limitations clause and enforcing the remainder. 

Read Lhotka v. Geographic Expeditions, Inc., No. A123725 [HTML]

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Appellate Information

Filed January 29, 2010

Judges

Opinion by Judge Siggins

Counsel
For Appellant:   Rubin, Hay & Gould, Rodney E. Gould, Walsworth, Franklin, Bevins & McCall, Laurie E. Sherwood, Alex F. Pevzner

For Appellee:  Law Offices of David J. Bennion, David J. Bennion, Law Office of Daniel U. Smith, Daniel U. Smith

Brown v. Mortensen, No. B199793

In plaintiffs' suit against their former dentist and others for allegedly disclosing their and their minor children's confidential medical information in violation of the Confidentiality of Medical Information Act, trial court's rulings sustaining defendant's demurrer on certain causes of action and dismissing certain claims is affirmed as, although the causes of action at issue are not impermissibly vague or confusing, the federal Fair Credit Reporting Act preempts plaintiffs' claims against defendant.     

Read Brown v. Mortensen, No. B199793 [HTML]

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Appellate Information

Filed January 29, 2010

Judges

Opinion by Judge Chaney

Counsel
For Appellant:   Law Offices of Robert A. Brown, Robert A. Brown; Law Offices of Lyle F. Middleton and Lyle F. Middleton

For Appellee:  Carlson & Messer, David J. Kaminski and Stephen A. Watkins

People v. C.S.A., No. A122776

Trial court's decision enforcing a cooperation agreement between law enforcement officers and defendant and dismissal of a felony charge and related probation violations is reversed and remanded as law enforcement officers had no authority to promise the felony charge and related probation violations would be dismissed, and defendant's reliance on that unauthorized promise had no constitutional consequence permitting dismissal on due process grounds. 

Read People v. C.S.A., No. A122776 [HTML]

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Appellate Information

Filed January 29, 2010

Judges

Opinion by Judge Banke

Counsel
For Appellant:   Stephan R. Passalacqua, District Attorney of Sonoma County, William S. Mount, Depurty District Attorney of Sonoma County, Robert A. Maddock, Deputy District Attoreny of Sonoma County and Michael Li, Deputy District Attoreny of Sonoma County

For Appellee:   Adrian & Gallen and Stephen M. Gallenson

Firemans' Fund Ins. Co. v. Workers' Comp. Appeals Bd., No. C062019

An order of the Workers' Compensation Appeals Board (WCAB) denying Fireman's Fund Insurance Company's petition for reconsideration regarding a stipulation entered into by plaintiff and the California Insurance Guarantee Association in 2001 is annulled and the matter is remanded where: 1) CIGA's stipulations and a subsequently entered order on the stipulations were not a nullity and void; and 2) the WCAB improperly exercised its discretion under the Labor Code section 5803 to set aside the order entered on the stipulations on the ground of illegality and public policy. 

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Appellate Information

Filed January 29, 2010

Judges

Opinion by Judge Cantil-Sakauye

Counsel
For Appellant:   Cuneo, Black, Ward & Missler, Richard A. Weyuker

For Appellee:   Guilford Steiner Sarvas & Carbonara, LLP, Richard E. Guilford; Hanna, Brophy, MacLean, McAleer & Jensen, LLP

Pellegrino v. Robert Half Int'l, Inc., No. G039985

In plaintiffs' suit against their former employer, a temporary staffing firm, alleging violations of Labor Code provisions and unfair competition claims, the judgment of the trial court is affirmed where: 1) a provision shortening the limitation period in plaintiffs' employment agreements is unenforceable as plaintiffs' claims for violations of wage and hour laws are based on unwaivable and fundamental statutory rights, and the provision is an unlawful attempt to restrict employees' ability to enforce their unwaivable statutory rights; 2) the trial court did not deny defendant any right to a jury trial; and 3) the administrative exemption from the wage and hour laws was inapplicable to plaintiffs. 

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Appellate Information

Filed January 28, 2010

Judges

Opinion by Judge Fybel

Counsel
For Appellant:   Seyfarth Shaw, Gilmore F. Diekmann, Jr., Raymond R. Kepner, Todd C. Hunt and Michael D. Mandel

For Appellee: Shanberg Stafford, Ross E. Shanberg, Shane C. Stafford; Quest Law Firm and Robert C. Robinson

People v. Lessie, No. S163453

Conviction of minor-defendant for second-degree murder is affirmed as People v. Burton, 6 Cal.3d 375 (1971), is no longer good law as the holding was based on the United States Constitution, and Burton's special rule for minors is inconsistent with the high court's subsequent decision in Fare v. Michael C., 442 U.S. 707 (1979), which requires courts to determine whether a defendant - minor or adult - has waived the Fifth Amendment privilege by inquiring into the totality of the circumstances surrounding the interrogation.     

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Appellate Information

Filed January 28, 2010

Judges

Opinion by Judge Werdegar

Counsel
For Appellant:   Elisa A. Brandes

For Appellee: Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General,  Ronald Jakob, Steven T. Oetting and Jennifer A. Jadovitz, Deputy Attorneys General

People v. McKee, No. S162823

In defendant's constitutional challenge to voter-passed Proposition 83, which modified the terms by which sexually violent predators (SVP) can be released from civil commitment under the Sexually Violent Predators Act, trial court's judgment is affirmed in part and reversed and remanded in part where: 1) defendant's due process and ex post facto challenges were without merit; but 2) with respect to an equal protection claim, the state has not yet carried its burden of demonstrating why SVP's, but not any other ex-felons subject to civil commitment, such as mentally retarded disordered offenders, are subject to indefinite commitment. 

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Appellate Information

Filed January 28, 2010

Judges

Opinion by Judge Moreno

Counsel
For Appellant:   Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Steve Oetting and Bradley A. Weinreb, Deputy Attorneys General

For Appellee:  Steven M. Hinkle

Biscaro v. Stern, No. B205856

In an action for dissolution of marriage, trial court's issuance of a restraining order against defendant and an entry of default judgment awarding a condominium to his former wife as her separate property is reversed and remanded where: 1) the court erred in awarding the condominium as wife's separate property because it granted greater relief than she had requested in her petitions for dissolution; and 2) it was reversible error for the court not to rule on defendant's request for accommodation.     

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Appellate Information

Filed January 28, 2010

Judges

Opinion by Judge Rubin

Counsel
For Appellant:   Allen L. Lanstra, Jr.

For Appellee:  N/A

In an action seeking indemnity following a settlement of a personal injury action, trial court's summary judgment in favor of the underwriter is reversed and remanded as the parties responsible for the underlying plaintiff's injuries were not insureds under defendant-insurance company's liability policy.  

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Appellate Information

Filed January 28, 2010

Judges

Opinion by Judge Elia

Counsel
For Appellant:   Selman Breitman LLP, Nicholas Banko, and James R. Tenero

For Appellee:   McCormick Barstow Sheppard Wayte & Carruth, James P. Wagoner, Jack S. Fischer, and Geni K. Krogstad

Stewart v. Rolling Stone LLC, No. A122452

In a class action suit brought by "indie rock" musicians whose band names were included in an editorial in a Rolling Stone issue, claiming unauthorized use of their names for a commercial purpose, trial court's denial of defendants' anti-SLAPP motion is reversed and remanded where: 1) the trial court erred in concluding that a triable issue exists as to whether the editorial feature that is the subject of this litigation constitutes commercial speech; and 2) plaintiffs have failed to present evidence sufficient to establish that they have a probability of prevailing on the merits.     

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Appellate Information

Filed January 28, 2010

Judges

Opinion by Judge Dondero

Counsel
For Appellant:  Davis Wright Tremaine, Elizabeth A. McNamara, Esq., (Pro Hac Vice), Thomas R. Burke, Esq., Rochelle L. Wilcox

For Appellee:   Bartko, Zankel, Tarrant & Miller, Christopher J. Hunt, Esq., Gisu Sadaghiani, Esq.

People v. Beaty, No. F055868

Trial court's revocation of defendant's Proposition 36 probation and imposition of a 30-day sentence in a county jail is reversed and remanded as the authorized use of medical marijuana does not by itself make a nonviolent drug offender unamenable to the treatment mandated by Proposition 36. 

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Appellate Information

Filed January 28, 2010

Judges

Opinion by Judge Wiseman

Counsel
For Appellant:  Michael Allen

For Appellee:   Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Peter H. Smith, Deputy Attorneys General

Mansouri v. Sup. Ct., NO. C062366

In a homeowner's petition for a writ of mandate seeking to require a trial court to vacate its order compelling arbitration and awarding attorney fees to a condominium association is granted where: 1) an arbitration provision contained in the CC&Rs is not unconscionable, and is applicable; 2) however, a party seeking to compel arbitration under Code of Civil Procedure section 1281.2 must establish it demanded arbitration under the parties' arbitration agreement and that the other party refused to arbitrate under the agreement before it is entitled to an order granting a petition to compel such arbitration; and 3) the association here failed to show it made such a request. 

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Appellate Information

Filed January 28, 2010

Judges

Opinion by Judge Cantil-Sakauye

Counsel
For Appellant:   Manatt, Phelps & Phillips, LLP, Andrew A. Bassak, Benjamin G. Shatz

For Appellee:   Sproul Trost LLP, Thomas G. Trost, Gregory L. Maxim, Jason M. Sherman

Katzeff v. California Dep't of Forestry & Fire Prot., No. A122642

In plaintiff's suit alleging violations of the California Environmental Quality Act (CEQA), trial court's judgment that the California Department of Forestry and Fire Protection (CDF) properly granted the exemption allowing harvesting of less than three acres of timber without environmental review is reversed as, where a public agency has adopted a mitigation measure for a project, it may not authorize destruction or cancellation of the mitigation - whether or not the approval is ministerial - without reviewing the continuing need for mitigation, stating a reason for its actions, and supporting it with substantial evidence.     

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Appellate Information

Filed January 28, 2010

Judges

Opinion by Judge Rivera

Counsel
For Appellant:   Paul V. Carroll

For Appellee:   Edmund G. Brown, Jr., Attorney General, Mary E. Hackenbracht, Senior Assistant Attorney General, Anita E. Ruud, Deputy Attorney General