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

March 2010 Archives

Fullerton Redevelopment Agency v. S. Cal. Gas Co., No. G041781, concerned an action arising out of damage to property caused by hazardous waste contamination.  The court of appeal affirmed the trial court's order holding that the good faith settlement agreement between two of the involved parties barred any claims against defendant for contribution and indemnity asserted by plaintiff under Health and Safety Code section 25363, holding that the principles of Code of Civil Procedure sections 877 and 877.6 would apply to bar contribution and indemnity claims asserted under Health and Safety Code section 25363.

Cotton v. StarCare Med. Grp., No. G040920, involved an action claiming that defendant health care provider inadequately treated plaintiffs' decedent.  The court of appeal affirmed the dismissal of the action in part where plaintiffs' claim for constructive fraud was preempted because the gravamen of this cause of action was a physician incentive plan, and the federal Centers for Medicare & Medicaid Services had issued a regulation governing the contents of such plans.  However, the court reversed in part on the grounds that 1) the trial court abused its discretion by ruling on defendant's demurrer to the original complaint after the parties stipulated to continue the hearing on objections to the original complaint and allow plaintiffs an opportunity to submit an amended complaint; and 2) 42 U.S.C. section 1395w-26(b)(1) did not preempt the majority of plaintiffs' claims.

In People v. Bojorquez, No. G040702, the court of appeal affirmed defendant's conviction for consensual sexual activity with a confined adult based on his conduct while supervising community work release participants at a county animal shelter, holding that the shelter constituted a "detention facility" under Cal. Penal Code section 289.6.

G.C. v. Superior Court, No. H034808, involved a petition for a writ of mandamus seeking to vacate a restitution order issued against a minor for felony vandalism by graffiti.  The court of appeal granted the writ, on the ground that Welf. & Inst. Code section 742.16, which required the court to consider ability to pay when ordering restitution for graffiti abatement, applied in the deferred entry of judgment context.

Karuk Tribe of N. Cal. v. Cal. Regional Water Control Bd., No. A124351, concerned an action seeking to compel the California Regional Water Quality Control Board, North Coast Region (Board) to enforce California's law governing waste discharge to several hydroelectric dam-reservoirs on the Klamath River.  The court of appeal affirmed judgment for defendant on the ground that the Board and the trial court correctly recognized that for at least half a century federal law has been supreme when it comes to the subject of regulating hydroelectric dams operating under a federal license.  However, the court reversed the trial court's award of attorney's fees to plaintiffs, holding that three of the statutory prerequisites to an award under Code of Civil Procedure section 1021.5 were absent:  1) the initiators of this litigation could not qualify as the "successful" parties in that in no sense did they achieve their strategic objective; 2) this was not an action that "resulted in the enforcement of an important right affecting the public interest"; and 3) this was not a case where "a significant benefit . . . has been conferred on the general public or a large class of persons."

Dominguez v. Fin. Indemn. Co., No. A125133, concerned an action by an auto accident victim for declaratory relief challenging the enforceability of provisions in an automobile insurance policy limiting liability coverage for permissive users.  The court of appeal affirmed judgment for defendant on the ground that the disputed policy provisions were sufficiently conspicuous, plain and clear and were enforceable.

In People v. Hall, No. C060359, the court of appeal affirmed defendant's robbery and related convictions in part, holding that 1) defendant did not show that the admission of evidence of a prior carjacking had any prejudicial effect on the jury; 2) defendants did not point to anything about the field showup here that was unduly suggestive; and 3) a person who carries a concealed, loaded firearm that was not registered to him in a private place may be guilty of violating Cal. Penal Code section 12025 without violating section 12031.  However, the court reversed defendants' convictions in part where they could not be convicted of both counts of receiving stolen property because receipt/possession of more than one item of stolen property at the same time constituted a single offense.

In People v. Escudero, No. C060342, the court of appeal affirmed defendant's conviction for committing a lewd and lascivious act on a child under the age of 14, holding that the trial court properly admitted evidence of defendant's prior sex crimes against adults because it was highly probative of his intent to touch the victim for sexual gratification, thus dispelling any notion that the touching was the result of accident or mistake.

In People v. Johnson, No. C055139, the court of appeal affirmed defendants' murder and robbery convictions and sentences, on the grounds that 1) the procedures used to obtain the pretrial identifications of defendants were not unduly suggestive; 2) the trial court properly considered defendant's prior excluded confession for the purpose of weighing evidence under Cal. Evid. Code section 352; 3) the court reasonably determined that defendant's admissions and his exculpatory statements to a third party were made at different times, and thus the latter was not admissible under section 356; and 4) defendant was properly informed of her Miranda rights.

Bezirdjian v. O'Reilly, No. A124859, concerned a derivative action against directors of Chevron Corp. based on illicit payments Chevron allegedly made to Saddam Hussein in exchange for Iraqi oil.  The court of appeal affirmed the dismissal of the complaint on the ground that plaintiff failed to meet his burden to allege facts sufficient to rebut the presumption that a special committee of the board exercised valid business judgment when it refused to maintain the underlying lawsuit.

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Seabright Ins. Co. v. U.S. Airways, Inc., No. A123726, involved an insurer's subrogation action against the city and county of San Francisco arising from injuries suffered by an employee of an independent contractor working with U.S. Airways to provide preventive maintenance and repair services at the Airport.  In reversing the trial court's grant of summary judgment in favor of the defendants, the court held that the hirer can be liable to the employee of a contractor if the hirer breaches a nondelegable duty imposed by statute or regulation and the breach affirmatively contributes to the employee's injury.  Here, the applicable regulations imposed a nondelegable duty to provide guarding for the conveyors and U.S. Airways has not shown that there is no triable issue as to whether it affirmatively contributed to the employee's injuries.

In Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP, No. H033285, the Sixth District faced a challenge to the trial court's dismissal of plaintiff's legal malpractice suit involving a patent prosecution for an electronic billboard.  In affirming the dismissal and the sustaining of a demurrer in favor of the defendants, the court held that this action should be adjudicated in federal court as there are substantial patent questions presented in the element of causation and damages and there is no other viable avenue of relief through reliance on the prospect of alternative theories for recovery of damages.

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In Risely v. Interinsurance Exch. of the Auto. Club, No. D054866, the Fourth District faced a challenge to the trial court's grant of summary judgment in favor of the defendant-insurance company in plaintiff's suit for breach of contract and breach of covenant of good faith and fair dealing arising from plaintiff's claim against the insured for motor negligence, false imprisonment and others. In concluding that the trial court  erred in deciding as a matter of law that the insured suffered no damages from insurer's refusal to defend the underlying suit, the court reversed the judgment where the fact that the insurer provided defense to the insured under his automobile policy does not necessarily insulate him from liability for its breach of duty to settle under his homeowner's policy with the insurer.

Pou Chen Corp. v. MTS Prod., No. B214233, involved a dispute over the relative priority of parties' claims arising from an underlying action for breach of contract, among others, involving a joint venture to sell electronics to Wal-Mart.  In rejecting the defendants' claim that plaintiff's right to offset should be subordinate to claims of the contractual lienholders because the liens existed before plaintiff acquired the judgment at issue, the court affirmed the trial court's judgment that while an attorney's lien is subordinate to the rights of the adverse party to offset judgments in the same action or in actions based upon the same transactions, it is nevertheless superior to any right to offset judgments obtained in entirely independent actions.

Purifoy v. Howell, No. A123856, involved a plaintiff's suit against a county and a director of the county's animal services claiming violation of the Food & Agric. Code section 31108(a)  by counting Saturday as a "business day," arising from the impoundment of plaintiff's dog and subsequent adoption by another individual.  In reversing the trial court's interpretation of the statute and its grant of summary judgment in favor of the defendants, the court held that the term "business days" in the statute does not include Saturdays and therefore, the shelter did not hold plaintiff's dog for the minimum holding period.

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Winans v. Timar, No. A124263, involved plaintiffs'  challenge to the trial court's grant of summary judgment in favor of defendant in their challenge of their uncle's new will claiming undue influence and lack of testamentary capacity.  In reversing the grant of summary judgment, the court held that there are triable issues of fact with respect to the validity of the certificate of independent review, and as such, it was an error to grant summary judgment with respect to this issue.

Agbeti v Los Angeles Unified Sch. Dist., No. B211052 dealt with plaintiff's action against a school district for physical and sexual assault and battery that the plaintiff-student suffered at one of the school district's campuses during a voluntary after school program by other students.  Trial court granted summary judgment in favor of the school district on the ground that there is no duty of care with respect to students who participate in voluntary after school programs.  However, in reversing trial court's judgment, the court held that the defendants did owe a duty of care to plaintiff and the questions of whether defendant was negligent in running the after school program, and if so, whether such negligence was a proximate cause of plaintiff's injuries must be decided by a trier of fact.

In re Loresch, No. B220739 addressed a defendant's request for habeas relief seeking to vacate Governor's order reversing the 2008 Board of Parole Hearing's decision to grant him parole.  In granting the petition, the court concluded that the record does not support the Governor's conclusion that defendant is unsuitable for parole because he is currently dangerous as the Governor's order rests only on speculation and he has failed to articulate a rational nexus between the circumstances of defendant's commitment offense and his conclusion of current dangerousness. 

People v. Sup. Ct., No. B219011 dealt with the government's petition for a writ of mandate directing the superior court to vacate its order dismissing a petition for commitment of defendant as a sexually violent predator (SVP).  In granting the petition, the court held that section 6601.3 regulation's standard for good cause for a 45-day hold is proper, which the government met in this case as there was evidence before the Board that defendant committed a qualifying offense and some evidence he is likely to engage in sexually violent predatory criminal behavior. 

Gualala Festivals Comm. v. California Coastal Comm'n, No. A125614 involved a plaintiff's petition for a writ of mandate seeking to set aside a cease-and-desist order by the California Coastal Commission prohibiting plaintiff from discharging fireworks over a river estuary without first obtaining a permit.  In upholding the trial court's affirmance of the Commissioner's order, the court concluded that the Commission had jurisdiction over the proposed fireworks display and did not exceed its jurisdiction in requiring the plaintiff to first obtain a permit.

In re K.S., No. A124698, involvled a challenge to the juvenile court's order making a minor a ward of the court and placing him on home probation for possessing Ecstasy.  In affirming the order, the court held that when a school official independently decides to search a student and conducts the search, the T.L.O. standard applies even if the police provide the information leading to the search and are present when the search occurs.

People v. Feyrer, No. S154242 involved a challenge to the court of appeal's reversal of trial court's refusal to grant defendant's request to declare his offense of assault by means of force likely to produce great bodily injury to be a misdemeanor in its order of early termination.  In concluding that the plea agreement did not render inoperative the statute conferring upon the court discretionary authority to declare a wombler offense to be a misdemeanor where the court initially granted probation by suspending imposition of a sentence, the court affirmed the court's of appeal's judgment.

In Int'l Soc'y for Krishna Consciousness of California, Inc. v. City of Los Angeles, No. S164272, the California Supreme Court decided an issue, involving an action first brought by the International Society for Krishna Consciousness of California and others in 1997 challenging an ordinance prohibiting soliciting funds at LAX, of whether the Los Angeles International Airport  is a public forum under the Liberty of Speech Clause of the California Constitution.  Without deciding the issue of whether or not LAX is a public forum for free expression under the California Constitution, the court upheld that ordinance as a reasonable time, place, and manner restriction of expressive rights to the extent that it prohibits soliciting the immediate receipt of funds. 

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Today, the California Courts of Appeal decided a criminal matter, arbitration concerning whether a Cumis fee dispute is involved, and a case involving plaintiff's challenge to a city's approval of a supercenter construction project.

In People v. Gonzales, No. E046800, the Fourth District faced a challenge to a conviction for failure to register as a sex offender and sentenced to a five-year term of imprisonment.  In rejecting defendant's claim that thre was insufficient evidence to support his conviction for failing to register as a sex offender during the period at issue, the court concluded that there was sufficient evidence to support the jury's finding that defendant violated section 290 by failing to register the house at issue as his residence.  Furthermore, the court properly instructed the jury on the elements of the section 290 offense and the court also rejected defendant's claim that definition of "residence" in section 290.011(g) is unconstitutionally vague and ambiguous.

In Intergulf Dev. v. Sup. Ct., No. D055459, the Fourth District addressed the issue of whether an insurer is entitled to binding arbitration of alleged Cumis fee dispute pursuant to Civ. Code section 2860(c) in an action by the insured against the insurer for breach of contract and bad faith where there has been no determination that the insurer had a duty to defend and the parties dispute whether the insurer satisfied that duty and its obligation under Civ. Code section 2860.  In granting the relief requested by the insured, the court held that the trial court erred in treating the case as a fee dispute subject to section 2860(c) and ordering arbitration before questions of bad faith and breach of contract were resolved. 

In Melom v. City of Madera, No. F055024, the Fifth District dealt with a plaintiff's suit against a city claiming that it violated the CEQA and the city's municipal code by approving a commercial retail shopping center project without preparing a subsequent or supplemental EIR after the size of one of the largest retail space grew from 138,000 square feet to 198,484 square feet.  Here, there was no misdeception of the size of the project and no expert evidence or any other evidence that approval of the project with the refined site plan might lead to urban decay.  Thus, in affirming the the trial court's decision that no violation of section 21166 occurred in this case, the court rejected plaintiff's contention that whenever a governmental entity approves a project which includes a "supercenter", approval of such a project requires an EIR addressing potential urban decay effects which might result from the supercenter.

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Decisions in Criminal, Administrative, and Civil Matters

In Arterberry v. County of San Diego, No. D054699, the Fourth District faced a challenge to the trial court's order denying plaintiff attorney fees under Civ. Code section 714, which prohibits a public entity from willfully delaying the approval of an application to install or use a solar energy system, in an action against a county and others for damages caused by the county's delay in issuing a certificate of occupancy for the farm's solar energy system.  However, because the plain language of section 714(f) shows there is no private right of action against a public entity, trial court's judgment is affirmed.

In Amerigraphics, Inc. v. Mercury Cas. Co., No. B208654, the Second District addressed trial court's judgment in favor of plaintiff in an insurance bad faith case arising from defendant-insurance company's denial of full coverage for damage to plaintiff's business caused by flooding.  First, the court addressed the meaning of the "Business Income" coverage in the policy and concluded that under the plain meaning of the policy, plaintiff is entitled to be paid for lost profits, and even if there were no profits, for ongoing expenses incurred during the period of suspension of business operations.  However, trial court's award of punitive damages is vacated as the proper award of punitive damages is 3.8-to-one ratio of compensatory damages under the circumstances. 

In People v. Sokolsky, No. B212437, the Second District faced a challenge to a defendant's claim that he was entitled to a hearing on his right to represent himself in propria persona in trial court's determination finding him a sexually violent predator under the SVPA.  In affirming the trial court's decision, the court held that the defendant has no right to self-representation on appeal and that summary denial of his application was not an abuse of discretion.  However, the court modified the commitment order as the trial court erred in imposing a two-year term of commitment when the applicable law under section 6604 required imposition of an indeterminate commitment.

In Leader v. Cords, No. D055202, the Fourth Circuit addressed the probate court's denial of attorney fees in trust beneficiaries' action against the trustee for final distribution and breach of trust.  In reversing the denial of attorney fees, the court held that the probate erred by finding section 17211(b) is inapplicable as a matter of law because the proceeding does not constitute a contest of the trustee's account. 

In Sanchez v. San Diego County Office of Educ., No. D054560, the Fourth District addressed the issue of whether Educ. Code section 35330 provides a school district immunity from liability for student injuries occurring during a field trip on property owned and operated by a school district, which was not the school district in which the student attended school.  In holding that it does, the court concluded that, in accordance with the policy underlying section 35330, it is not limited to the student's home district, but also includes any school district that is a significant participant in conducting the field trip.

In People v. Bowman, No. F058082, the Fifth District faced a challenge to a defendant's conviction for drug offenses claiming that the evidence establishing the nature of the controlled substance was admitted in violation of his Sixth Amendment right to confront witnesses.  In rejecting defendant's claim, the court held that the United States Supreme Court's recent holding in Melendez-Diaz did not abrogate the holding in Geier, which held that an in-court witness may rely on laboratory notes and reports even if prepared by a different individual, to support witness's expert opinion.

In Nazaretyan v. California Physcians' Serv., No. B213664, the Second District faced a challenge to the trial court's dismissal of plaintiffs' case against the defendant, doing business as Blue Shield of California, for rescinding their coverage.  In reversing the dismissal, the court held that undisputed facts fail to show that defendant made reasonable efforts to ensure that plaintiffs' application was accurate and complete, and that the record did not show as a matter of law that plaintiff willfully misrepresented or omitted material information on their application.

In Mendoza v. ADP Screening & Selection Servs., Inc., No. B214653, the Second District faced a challenge to the trial court's grant of an anti-SLAPP motion in plaintiff's suit against a business involved in conducting a pre-employment background check for employment purposes, claiming that defendant violated the statutory prohibition against republishing information on the Megan's Law website (MLW).  However, notwithstanding the statutory prohibition on the use of such information, the anti-SLAPP motion was properly granted to strike plaintiff's MLW-based complaint for damages as the plaintiff could not show as a matter of law probability of prevailing. 

In Advanced Choices, Inc. v. Dep't of Health & Servs., No. B210116, the Second District addressed the issue of whether plaintiff is entitled to reimbursement for Medi-Cal claims by using a provider number not issued to the plaintiff by the Department of Health and Services.  In denying plaintiff's writ of mandate challenging the Department's demand for the return of almost $1.5 million in reimbursement for claims, the court held that plaintiff could not use a provider number issued to another provider, plaintiff could not reasonably rely on putative authority to use that provider number, the Department was not unjustly enriched, and plaintiff is not entitled to keep the money under quantum meruit.

In People v. Sanders, No. B206569, the Second District faced a challenge to a conviction for attempted murder and related offenses.  In affirming the conviction, the court held that there was no violation of defendant's federal constitutional rights to due process of law or to confront and cross-examine witnesses and the trial court did not err in imposing a full seven-year middle term sentence for the attempted murder. 

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Decisions in Criminal, Family Law, and Insurance Cases

In In re M.B., No. E048581, the Fourth District faced a challenge to the juvenile court's judgment terminating petitioners' parental rights to their minor child.  In rejecting the petitioners' argument that the juvenile court's decision must be reversed because the Indian expert did not conduct an adequate investigation, the court held that the ICWA does not require an Indian expert to interview parents in every case, and that even without the expert's opinion, the evidence supported the court's finding beyond a reasonable doubt that continued custody by the parents was likely to result in serious physical or emotional damage to the child.

In People v. Milward, No. C058326, the Third District faced a challenge to a conviction for assault with a deadly weapon and assault by a life prisoner with a deadly weapon, claiming that the elements of an assault with a deadly weapon are included within an assault by a life prisoner with a deadly weapon.  In affirming the conviction for both offenses, the court held that People v. Noah is no longer the controlling authority as under the current statutes, a life prisoner can commit an assault with a deadly weapon in violation of section 4500 without committing an assault with a deadly weapon in violation of section 245(a)(1).

In Wilson v. Sup. Ct., No. B21612, the Second District dealt with a defendant's request for habeas relief challenging SVPA commitment proceedings without conducting a mental competency hearing.  In granting the petition, the court held that, balancing the factors articulated by the United States and California Supreme Courts to identify the procedural guarantees appropriate for this context under the due process clauses of the federal and California Constitutions, the state may not proceed with an initial SVPA commitment trial while the defendant is incompetent.

In People v. Fleury, No. C061629, the Third District faced a challenge to the trial court's imposition of various fines and fees including two $30 assessments under section 70373 for an arson conviction.  In affirming the imposition of the assessments, the court held that it does not violate state of federal prohibition against ex post facto law as the Legislature did not intend for the assessment to be a punishment and it is not so punitive as to override the Legislature's intent.

In Gray v. Begley, No. B212082, the Third District decided an issue of whether an insurer, under certain circumstances, can intervene in an underlying action by a claimant against its insured, including seeking a set-off of the judgment against the insured.  Here, the court held that when an insurer provides a defense to its insured under a reservation of rights and the insured reaches a settlement with the third party claimant without the insurer's participation, the insurer may intervene in the underlying action to protect its interests and seek a set-off of the judgment against the insured based on the prior settlement by the claimant with another party.

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In People v. Castillo, No. C061806, the Third District faced a challenge to a court order imposed upon a defendant convicted of carjacking to pay a $30 criminal conviction assessment.  In rejecting defendant's contention that the statute providing for the assessment does not apply to crimes committed before its effective date of January 1, 2009, the court held that the assessment was properly imposed as the statute was enacted as part of the budgeting process, and the legislative wording in section 70373 shows that the Legislature intended the new assessment to apply to convictions occurring after the new statute's effective date.

In K.C. v. Sup. Ct., No. C063449, the Third District addressed a mother's request for an extraordinary writ to vacate the orders of the juvenile court denying reunification services.  In denying the mother's request, the court held that the juvenile court did not abuse its discretion in denying reunification services pursuant to section 361.5(b)(10) and (11) as the mother had not taken reasonable efforts to treat the problems that led to the removal of the newborn and previous removal of the newborn's half siblings. 

In Jordan v. Superstar Sandcars, No. E047454, the Fourth District faced a challenge to the trial court's dismissal of plaintiff's suit for breach of contract, fraud, breach of warranty and negligent repair in the sale of allegedly defective dune buggies, for failure to bring the action to trial within five years.  In rejecting plaintiffs' claim that the five year period was tolled due to two court-declared moratoriums on civil trials, the court held that, because the moratoriums did not prevent or interfere with plaintiffs prosecuting their case, it was not impossible or impracticable or futile to bring the action to trial.  Furthermore, plaintiffs have failed to show that had they been reasonably diligent and requested their case be tried before the five year period ran its course, their case would not have been tried. 

In Wilson v. City of Los Angeles, No. B192900, the Second District dealt with the trial court's judgment in favor of the City of Los Angeles in plaintiff's action for breach of public works contract, on the ground that the plaintiff was not permitted to prove damages using a modified total cost theory and that it could not prove document its acutal costs as required by the contract.  However, because section 7107 and Amelco impact the measure of damages, not the method of proving them, the trial court's judgment is reversed where the modified total cost theory is permissible and plaintiff is entitled to litigate whether it was required to document its acutal costs as a condition of payment. 

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In In re Moses, No. A124814, the First District faced a challenge to Governor Schwarzenneger's reversal of the Parole Board's third decision to grant parole to a defendant convicted of second-degree murder nearly thirty years ago.  Although the defendant's bahavior in prison has been exemplary, has almost a spotless disciplinary record, and has accepted responsibility and shown remorse, the Governor found that defendant's release on parole posed an unreasonable risk of danger to public safety.

In vacating the order, the court concluded that the Governor violated defendant's due process rights as his decision was based on seriously flawed reasons, unsupported by any evidence, and failed to articulate any rational nexus between his reasons for reversing the parole grant. 

In In re Juarez, No. A125665, the First District dealt with a defendant's request for habeas relief to be released from prison after the Board of Parole Hearings denied parole.  Defendant had been serving a sentence for his second-degree murder conviction for killing a man with his vehicle while impaired by PCP and other drugs. 

The court concluded that the Board abused its discretion in denying parole as it had relied on three reasons not supported by the evidence nor probative of defendant's dangerousness.  Thus, in granting the relief, the court held that in light of the nature of defendant's crime, period of time elapsed since the crime, affirmative evidence of defendant's conduct, and his rehabilitative efforts, there is lack of evidence to support the Board's finding that defendant poses a danger to public safety.

In People v. Brooks, No. B216238, the Second District faced a challenge to the trial court's order imposing a probation condition barring defendant's use of medical marijuana despite a physician's recommendation for personal use.  In affirming the decision, the court held that despite section 11362.795, a trial court has the discretion to impose probation conditions that prohibit even legal activities and that defendant has not presented any compelling reason for making an exception for medical marijuana. 

In People v. Bankers Ins. Co., No. B213065, the Second District addressed a denial of a surety's motion to vacate a judgment ordering the forfeiture of an $80,000 bail bond.  The court concluded that the trial court exceeded its jurisdiction when it extended the appearance period beyond the time permitted by statute, but nonetheless held that the surety is estopped from challenging the forfeiture order and the summary judgment as the surety stipulated and/or consented to the procedure in excess of jurisdiction. 

In People v. Brown, No. C056510, the Third District addressed an amendment to Penal Code section 4019 that went into effect after defendant was sentence but before his conviction for selling methamphetamine became final.  The court concluded that defendant is entitled to the additional conduct credits provided by the amended section 4019, and thus, defendant is entitled to 62 days of conduct credits because he served 62 days of presentence custody. 

In In re L.B., No. C061010, the Third District faced a challenge to a juvenile court's conviction of a minor defendant for various misdemeanor offenses following a finding that the minor was competent to stand trial.  In reversing the decision, the court held that the juvenile court erred when the court suspended proceedings and ordered a competency evaluation by a licensed psychiatrist to determine whether the minor is mentally retarded, but failed to appoint the director of the regional center for the developmentally disabled to examine the minor.

In People v. Lynch, No. D053717, the Fourth District faced a challenge to a conviction for attempted murder.  Defendant argued that counts 2 through 6 should be dismissed because they were not charged within the applicable statute of limitations.  However, pursuant to People v. Williams (1999) 21 Cal.4th 335, the court held that the appropriate remedy is to remand the case to trial court for determination as to whether the statute of limitations was tolled. 

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The Second District decided a criminal matter involving a commitment offense, a high school student's suit under hate crime laws and defamation and a homeowner's property tax exemption under the corporate alter ego theory.

In People v. Townsend, No. B216325, the court faced a challenge to a judgment committing a defendant to the Department of Mental Health or Treatment as an MDO following his conviction of possession of Molotov cocktails. 

As stated in the decision: "A defendant may be committed as an MDO if his commitment offense  1) was a crime 'in which the prisoner used force or violence, or caused serious bodily injury,'" or 2) was 'a crime involving an implied threat to use force or violence likely to produce substantial physical harm."

In affirming the decision, the court concluded that defendant's offense came within the second category as defendant's possession of the Molotov cocktails could be used only for criminal purposes, and because these devices are bombs, they are more dangerous than other weapons typically used in crimes.  Therefore, people who carry such bombs are a threat to public safety and the danger is substantially increased when individuals who carry such devices are mentally disordered, delusional and paranoid.

In Grotenhuis v. County of Santa Barbara, No. B212264, the court faced a challenge to the trial court's ruling that a trustee, as the alter ego of corporation, can claim a homeowner's property tax exemption and transfer the base year of a former residence to a new residence of which corporation is owner of record. 

As stated in the decision: "Section 69.5(a)(1) provides that a natural "person" may transfer the tax basis of his or her principal residence.  Person means any individual, but does not include any firm, partnership, association, corporation, company, or other legal entity or organization of any kind."  Thus, in reversing the trial court's decision, the court held that the corporate alter ego theory applies only in narrow circumstances or when the ends of justice so require, and here, trustee cannot invoke the theory to gain a tax advantage.

In D.C. v. R.R., No. B207869, the court addressed trial court's denial of defendant's anti-SLAPP motion in a suit brought by a 15year-old high school student against his schoolmates and their parents under California's hate crime laws and common law defamation, arising from derogatory comments about the plaintiff's sexual orientation posted on his Web site by defendants. 

In affirming the trial court's denial, the court held that defendants did not make the required showing that plaintiff's suit is subject to anti-SLAPP statute.  The posted comments, threatening to kill and severely injure plaintiff, is not protected speech, and even if assuming that the defendants meant it as a joke by teenagers, the comments did not concern a public issue under the statute.

Today, the Fourth District addressed the father's challenge to the juvenile court's order declaring his daughter a dependent of the court and a mobilehome park owner and operator's challenge to the trial court's denial of damages arising from a city's rent control ordinance.

In In re S.A., No. D055148, the court addressed a father's challenge to the juvenile court's order declaring his daughter a dependent of the court, claiming that his daughter's appointed counsel was ineffective and that lack of evidence supported the juvenile court's conclusion that he sexually molested his daughter.  In affirming the order, the court held that the father lacks standing to assert ineffective assistance of counsel claim as her statutory right to be represented by competent counsel is a right personal to her.  The court also held that juvenile court's finding of sexual molestation was based on clear and convincing evidence and rejected remainder of the father's claims as lacking merit.

In MHC Fin. Ltd. P'ship Two v. City of Santee, No. D053345, the court addressed a mobilehome park owner's challenge to a city rent control ordinance.  In affirming the trial court's decision, the court held that the mobilehome park owner was not entitled to damages because it has not demonstrated that the trial court erred in ruling that plaintiff suffered no legally remediable injury due to the city's retroactive application of the ordinance.  The court also concluded that the trial court was correct in deciding that plaintiff was not entitled to damages for the city's violation of its right to petition under the California Constitution.

The Supreme Court of California decided two cases today involving issues of an air management district's failure to conduct a EIR report prior to approving a project and a petitioner's request for relief from lifetime mandatory sex offender registration. 

In Communities for a Better Env't v. S. Coast Air Quality Mgmt. Dist., No S161190, the Court of California addressed the decision of the air management district in approving a refinery project based on a prior baseline maximum permitted capacity.  The defendants, including ConocoPhillips, claimed that existence of valid permits to operate industrial equipment used for the project at particular levels is an exception to the general rule that existing physical conditions serve as the baseline for measuring a project's environmental effects.

In flatly rejecting the defendants' contention, the court held that the air management district abused its discretion in determining that the project would have no significant environmental effects prior to completing a EIR report and also held that nothing justified the defendants employing as an analytical baseline for a new project the maximum capacity allowed under prior equipment permits.

In People v. Picklesimer, No. S165680, the Court faced a challenge to the denial of petitioner's request for relief from mandatory lifetime sex offender registration based on equal protection on the ground that the court lacked jurisdiction. 

In affirming the decision, the Court resolved an uncertainty in a class of defendants convicted of violating section 288(b)(1)  on or before the date of the Court's decision in People v. Hofsheier that imposition of mandatory lifetime sex offender registration on defendants convicted of violating this section violated the state and federal equal protection clauses.  The Court concluded, that for defendants like petitioner, who are no longer in custody and whose appeals are final, Hofsheier claims must be brought by way of a petition for writ of mandate in the trial court.  Thus, freestanding postjudgment motion, such as the one filed by petitioner is not cognizable.

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In California Sch. Employees Ass'n v. Torrance Unified Sch. Dist., No. B212470, the Second District addressed plaintiffs' claim that the school district failed to pay their regular wages in violation of Education Code section 45203.  In affirming the Superior Court's denial of plaintiffs' petition for a writ of mandate, the court held that, under the plain meaning of the statute, classified employees who did not work on staff development student free days were not entitled to be paid for regular wages for such days.

In A.H. v. Sup. Ct. G043003, the Fourth District dealt with a father's request for a writ of mandate seeking relief from a juvenile court's order terminating his family reunification services and setting a permanency hearing for his four children.  In rejecting the father's claim that the juvenile court should have applied section 361.5(a)(2) which takes into account a parent's incarceration rather than another provision, the court held that the juvenile court correctly weighed and considered all relevant provisions in making its decision.

In Freedman v. Brutzkus, No. B213489, the Second District addressed the issue of whether a signature of an attorney under the legend "approved as to form and content" on a contract amounts to an actionable representation to an opposing party's attorney that can provide a basis for tort liability.  In answering in the negative, the court explained that the only reasonable meaning to be given to such a recital is that the attorney is asserting that he is the attorney for the particular party.

In People v. Concha, No. B195197, the Second District addressed the issue of whether a conviction for first degree murder for the killing of an accomplice by the intended victim in the course of attempted murder can stand in light of jury instructions.  Here, the trial court failed to instruct the jury that for a defendant to be found guilty of first degree murder, he personally had to have acted willfully, deliberately and with premeditation when he committed the attempted murder.  In upholding the conviction, the court concluded that the err was harmless as a rational jury would have found beyond a reasonable doubt that each defendant personally premeditated and deliberated the attempted murder.

In Cent. Concrete Supply Co. Inc. v. Bursak, No. A123930, the First District faced a trial court's grant of plaintiff's leave to amend in an action against an attorney for conspiracy to defraud plaintiff, despite the attorney's successful challenge that the complaint failed to allege compliance with the prefiling requirements under Civ Code section 1714.10(a).  In affirming the decision, the court held that, in appropriate circumstances, a trial court may permit an amendment of the complaint after sustaining a demurrer based on section 1714.10, and here, the trial court stated that plaintiff may be able to allege that defendant was not the individual's attorney at the time of the alleged conspiracy.

Finally, in People v. D'Arcy, No. S060500, the California Supreme Court faced a conviction for first-degree murder and a sentence of death of a defendant after retrial of the penalty phase following a deadlocked jury at the first penalty phase.  Defendant raised multiple issues on appeal.  The court affirmed the conviction and the sentence, and rejected all of defendant's claims, including that there was insufficient evidence to support his first degree torture-murder conviction for setting the victim on fire. 

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The California Court of Appeal for the Second District decided a criminal case involving conviction for a gang-related first-degree murder and a case involving an insurance company seeking equitable contribution.

In People v. Arias, No. B215566, the court faced a challenge to the trial court's imposition of life sentences for two attempted murder convictions claiming violation of federal due process requirements because the prosecution failed to allege those offenses were committed willfully.

As stated in the decision: "Here, the charging document alleged defendant willfully and with malice aforethought attempted to murder Stevenson and Spells, but did not allege the attempted murders were willful, deliberate, and premeditated.  Nor did counts 2 and 3 reference subdivision (a) of section 664."

Thus, in agreeing with the defendant that the penalty enhancement for the attempted murders must be stricken, the court concluded that the case must be remanded for resentencing as the prosecution failed to comply with the unambiguous pleading requirement set forth in section 664(a).

In Scottsdale Ins. Co. v. Century Surety Co., No. B204521, the court dealt with the issue of whether the plaintiff can seek equitable contribution from defendant-insurance company based on defendant's failure to participate in the defense of 17 common insureds in hundreds of actions in which plaintiff and another insurer shared the costs of the defense. 

The trial court had ruled that plaintiff was entitled to half of all defense and indemnity payments it made with respect to the claims for which it was entitled to equitable contribution.  However, the court reversed the decision in concluding that the trial court's calculation was in conflict with the general rule that in order to be entitled to equitable contribution, a party must first have paid more than its share of the loss and bears the burden of proving so.

Thus, the court remanded the case for redetermination of the damages and held that plaintiff must prove that it paid more than its fair share of the defense and indemnity costs and also bears the burden of proving such.  Furthermore, the court held that one insurer cannot recover equitable contribution from another insurer any amount that would result in the first insurer paying less than its fair its fair share even if that means that the second insurer pays nothing.

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The California Court of Appeal for the First District decided a case involving an attorney's anti-SLAPP motion, validity of an arbitration award in an employment dispute, and the constitutionality and the scope of probation conditions placed upon a juvenile criminal defendant.

In San Francisco Hous. Auth. v. SEIU Local 790, No. A123636, the court dealt with an order by the Superior court vacating an arbitration award in its entirety on the ground that the award is contrary to the layoff provisions in the parties' memorandum of understanding (MOU). In reversing the order, the court held that the arbitrator did not exceed her powers as her decision was rationally related to the breach identified and the remedy imposed did not conflict with the clear language of the MOU.

In Seltzer v. Barnes, No. A123784, the court faced a challenge to the trial court's denial of defendant's anti-SLAPP motion arising from an underlying suit involving claims against a property management company and homeowner's association.  In reversing the denial, the court held that the trial court erred in determining that plaintiff's two causes of action against the defendant did not arise from speech or petitioning activity where his alleged conduct related to negotiations of a settlement in the prior lawsuit.  Furthermore, because defendant may not be held liable for the alleged conduct under the litigation privilege, plaintiff has failed to demonstrate a probability of prevailing on her claims for fraud and intentional infliction of emotional distress.

In In re Victor L., No. A123649, the court faced a challenge to the juvenile court's order placing a juvenile defendant on probation with various conditions.  The court affirmed the judgment for the most part with the exception of certain conditions such as restrictions on defendant's right to associate with individuals disapproved of by his probation officer or his parents, holding that this is unconstitutionally vague.  The court also modified condistions relating to defendant being in the presence of dangerous or deadly weapons and use of computers and the Internet as they were vague as well. 

In McGuan v. Endovascular Techs., Inc., No. H033287, the Sixth District faced a challenge to the trial court's grant of summary judgment in favor of the defendants in a products liability action involving plaintiff's claim that he suffered severe injuries after he was implanted with defendants' device to treat abdominal aortic aneurysm.  In affirming the decision, the court held that plaintiff's fraud claims of FDA violations are preempted under Brukman and that the trial court did not err in denying his motion to amend the complaint nor did it abuse its discretion in granting defendants' motion to seal documents.

In Abdelhamid v. Fire Ins. Exch. No. C059098, the Third District faced a challenge to the trial court's grant of summary judgment in favor of the defendant-insurance company in plaintiff's suit alleging breach of contract for being denied insurance coverage for the fire that burned her house down.  In affirming the decision, the court held that the summary judgment was properly granted as the defendant showed that the plaintiff failed to comply with the conditions precedent for coverage and materially breached her contractual obligations by failing to comply.

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In People v. Lara, No. S155481, the California Supreme Court faced a challenge to the court of appeals' reversal of trial court's denial of defendant's motion to dismiss the petition to extend his commitment.  The defendant moved to dismiss the petition for failure to comply with the statutory 90-day filing deadline.

In holding that the court of appeals erred in directing the trial court to grant the motion to dismiss, the court held that the statutory deadline for filing an extension petition is not mandatory, but rather directory as long as the petition is filed before the expiration of the current commitment.  Here, the defendant is not entitled to dismissal on due process grounds, and had he so move, he would have been entitled to release pending trial, subject to possible LPA Act proceedings.  However, defendant is not now entitled to relief as trial court retained jurisdiction to try him.

In the companion case of People v. Cobb, No. S159410, the court similarly faced a challenge to extension of commitment by a defendant arguing that he was denied due process because he remained in custody while his extension trial was continued, without good cause, beyond his scheduled release date.

In affirming the recommitment order, the court held that, at the end of defendant's commitment, he was entitled to release pending trial on the extension petition, unless good cause to continue the trial was shown or he waived time.  However, defendant is not now entitled to release as the court did not lose jurisdiction to try him. 

In California Court of Appeals cases, People ex rel. Reisig v. Acuna, No. C059375, dealt with a challenge in the Third District to a trial court's grant of district attorney's motion for a preliminary injunction against an alleged criminal street gang, enjoining their activities in approximately 3-square mile area of West Sacramento.

Although the court held that there was sufficient and credible evidence to support the trial court's conclusion that the group is a criminal street gang and that their activities have created a public nuisance, two provisions in the injunction dealing with alcohol consumption and controlled substances are unenforceable for vagueness.

In People v. Puluc-Sique, No. A123451, the First District dealt with the People's request to extend the appellate disentitlement doctrine to a criminal defendant who had been deported from the country by the ICE.

In denying the request, the court held that because the doctrine applies to fugitives, a defendant who has been deported does not stand in the same shoes as one who has voluntarily placed himself beyond the court's control.

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In People v. Warwick, No. G041970, the Fourth District faced a challenge to a conviction for child abuse and neglect and jury's true finding on the enhancement that the defendant personally inflicted great bodily injury on her newborn baby.  The court rejected the defendant's contention that she did not "personally inflict" the injuries as required by section 12022.7(d), because "personally inflicts" does not preclude the failure to act where action is required.  And in this case, even if defendant's argument were accepted that a an "affirmative action" is required, giving birth to her son in her bedroom and concealing his birth, were affirmative actions by the defendant that nearly caused the baby's death.

In Mike v. Franchise Tax Bd., No. D054439, the Fourth District addressed the issue of whether the Franschise Tax Board may collect income tax from an American Indian for receiving more than $385,000 as her distribution from her tribe's gaming operations on their reservation while living on another tribe's reservation.  In affirming the trial court's decision in favor of the tax board, the court held that, the State of California may impose income tax on income received by an enrolled member of a tribe derived from her own land but residing on a reservation of a different tribe. 

In In re Lucas, No. C062809, the Third District faced a defendant's challenge to the district attorney's petition to commit him as a sexually violent predator claiming that he was not in lawful custody at the time of the petition because the section 6601.3 hold was placed on him without a showing of good cause.  Although the court concluded that the 45-day hold placed on defendant was not justified, it ultimately denied his request for habeas relief in finding that the board imposed the 45-day hold as a result of a good faith mistake of law based on regulation 2600.1(d), and defendant has not shown that the board did not rely on the regulation.

In People v. Memory, No. C054422, the Third District faced a challenge to defendants' convictions for murder and related crimes arising from a fight in a parking lot outside a bar between two groups of men.  In reversing the convictions, the court held that it was an error to admit evidence that the defendants were part of a motorcycle gang as there was no foundation that the club was a gang or a criminal enterprise, and was used as inadmissible character evidence. 

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The California Court of Appeal for the Fifth District decided a wrongful death suit against the State of California and a case brought by a doctor against hospitals and others for revoking the doctor's staff membership and hospital privileges.

In Coito v. Sup. Ct., No. F057690, the court faced a challenge to the denial of plaintiff's motion to compel in her wrongful death action against the State of Calfornia and other defendants for the drowning death of her 13-year old son in a river.  At issue was whether statement of the juvenile witnsess at the scene, taken in writing or recorded, by an attorney or someone on behalf of the attorney, is entitled to the protection of the California work-product privilege.  In reversing the denial, the court held that witness statements, whether written or recorded, and whether taken by counsel or turned over by witnesses are not attorney work product. 

In Smith v. Adventist Health Sys. No. F055923, the court faced a challenge to a grant of a preliminary injunction in a doctor's case against a hospital group for rejecting his application for staff membership and hospital privileges.  In affirming the injunction, the court concluded that the trial court did not err in finding that a statutorily required injunction bond had been waived, in finding that the plaintiff was likely to prevail on the merits, and that the court appropriately balanced the relative interim harms. 

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The California Court of Appeal for the Second District decided two criminal cases, insurance reimbursement claim, an attorney's anti-SLAPP motion to strike a lawsuit by a former client, and a child custody and support case.

In In re Mille, No. B217102, the court dealt with whether to grant defendant's request for habeas relief based on his 84-day delay in transfer from a county jail to a state hospital after the superior court ordered the sheriff to transport him for evaluation and treatment.  Although, the court concluded that the trial court should have granted defendant's initial petition and ordered the sheriff for prompt transfer, the petition was denied as moot because defendant is no longer in custody of the county jail or the sheriff, and having been transferred to the hospital, he has now received the relief requested.

In People v. Nitschmann, No. B210291, the court flatly refused a defendant's request to either withdraw from the negotiated disposition or a lesser sentence.  The court based its conclusion on the fact that defendant's written 16 page plea agreement and waiver of constitutional rights with a 10 page oral colloquy with the prosecutor and trial court clearly showed that he understood the disposition and wanted immediate sentencing.

In Oasis W. Realty, LLC v. Goldman, the court faced a challenge to the trial court's denial of defendant-attorney's anti-SLAPP motion.  Defendant's motion to strike was in response to a lawsuit by a former client in connection with development of real estate in Beverly Hills, which the client claimed the attorney's actions, following termination of the representation, was in opposition to the redevelopment efforts, in breach of fiduciary duty and professional negligence.  In reversing the trial court's denial of the motion, the court held that all causes of action in the complaint arose from acts in furtherance of protected activity and plaintiff could not show a probability of prevailing at trial.

In City of Laguna Beach v. California Ins. Guarantee Ass'n, No. B214027, the court addressed the issue of whether the addition of subdivision (c)(13) to Insurance Code section 1063.1 abrogated Denny's Inc. v. Workers' Comp. Appeals Bd. (2003) 104 Cal App.4th 1433. In concluding that it did not, the court held that the Denny's rule was properly invoked in granting summary judgment in favor of the defendant as it need not reimburse a permissbly self-insured employer for benefits paid to an employee for cumulative injurry if employer's liability is based in part on a period of time when the employer was self-insured and chose not to buy excess coverage. 

In Mendoza v. Ramos, No. B211969, the court faced a challenge to the trial court's decision declining to attribure income to the mother of petitioner's four children.  In affirming the trial court's decision, the court rejected the father's assertion that income can be attributed to the mother because she is pursuing an education rather than working because he has not shown that the mother has the ability to earn the income he seeks to impute.  Furthermore, imputation of income to a parent on CalWork's would be contrary to public policy.

In Galbiso v. Orosi Pub. Util. Dist., No. F056506, the Fifth District faced a challenge to the trial court's sustaining defendant's (a public utitlity district) demurrer to plaintiff's complaint seeking a preliminary injunction to prevent defendant from conducting a tax sale of her property for collection of sewer assessments.  In affirming the decision to sustain general demurrer to complaint for injunctive relief, the court rejected all causes of action for injunctive relief, including plaintiff's claim that the defendant had no authority to conduct a tax sale because this remedy was time-barred under section 104505's provisions.  The court also rejected her cause of action under the Brown Act and held that the trial court correctly sustained the demurrer to the writ of mandate petition as well.

Lastly, in In re E.O., No. A124534, the First District affirmed the juvenile court's denial of a father's request for presumed father status.  In so affirming, the court considered the fact that the father did not have any contact with the children, a 14-year old and a 7-year old, until recently, and the children expressed their wishes not to be with him.  Moreover, the court concluded that the father did not come within any of the categories set forth in Family Code section 7611 that may entitle him presumed father status.

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The California Courts of Appeal decided a bail bond forfeiture case, an issue of class certification, and Governor Schwarzenegger's constitutional authority to further reduce individual items in the 2009 budget.

In St. John's Well Child & Family Ctr. v. Schwarzenegger, No. A125750, the First District faced a challenge to Governor Schwarzenegger's cuts to the 2009 budget, brought by a nonprofit network of five community health centers, six school-based clinics in medically underserved areas in the Los Angeles area and other individuals and various organizations.  In the complaint, the petitioners made constitutional challenges to the Governor's use of the line-item veto authority provided in Article IV, section 10(e) of the California Constitution to increase the amount of mid-year reductions made by the Legislature to the Budget Act of 2009.

As stated in the decision, and under Harbor v. Deukmejian, 43 Cal.3d 1087 (1987): "The Governor's veto power is more extensive with regard to appropriations.  He may 'reduce or eliminate one or more items of appropriation while approving other portions of a bill." Thus, the court concluded that the dispositive issue in this case is whether the seven sections of Assembly Bill 4X1 the Governor further reduced were "items of appropriation."

In concluding that the individual budget cuts were items of appropriation within the meaning of art. IV, section 10(e), the court held that the Governor did not exceed his Constitutional authority and his line-item vetoes reducing them, while approving other portions of the Bill were constitutionally authorized.

In People v. Bankers Ins. Co., No. C060243, the Third District dealt with trial court's denial of petitioner's motion for exoneration of a bail bond.  In reversing the denial, the court held that although the court minutes showed that the bail was ordered forfeited on the day the defendant failed to appear in court, the reporter's transcript did not contain a declaration of forfeiture in open court as is required by statute.

In a class action lawsuit in Pfizer v. Sup. Ct., No. B188106, against the manufacturer of Listerine mouthwash, brought under the Unfair Competition Law and False Advertising Law, claiming that the manufacturer marketed the mouthwash in a misleading manner by making representations that it can replace use of dental floss in reducing plaque and gingivitis. In granting the defendant's petition for a writ of mandate seeking to overturn trial court's certification of the class, the court held that the order certifying a class consisting of all persons who purchased the mouthwash in California during a six-month period was overbroad.  In so ruling, the court reasoned that under In re Tobacco II cases, 46 Cal.4th 298 (2009),  a different disposition is not required in this case.

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Rulings in Criminal, Administrative, and Constitutional Cases

The California Courts of Appeals decided a criminal case where a key witness was made unavailable, a claimed violation of CEQA by a city for assessing a fee for an appeal, a challenge to the Medical Board of California's noncompliance with a statute, and whether an amendment has a retroactive effect in sentencing criminal defendants. Lastly, the Supreme Court of California dealt with a death-row inmate's array of arguments challenging his conviction. 

In Friends of Glendora v. City of Glendora, No. B215114, the Second District decided the issue of whether the city violated the CEQA when it assessed a $2000 fee for plaintiff's appeal to the city council of a planning commission decision.  In affirming the demurrer, the court held that under the plain reading of the provisions of Gov Code sections 66452.5 and 66451.2 confirm the city's right to impose a reasonable fee in this situation.  Furthermore, the plaintiff has failed to indicate how she could amend her complaint to avoid the demurrer.

In People v. Treadway, No. C059069, the Third District faced a challenge to a conviction for attempted robbery and firearm use.  In reversing the conviction, the court held that defendant's due process rights were violated when the prosecution made a co-defendant, a material witness, unavailable, by not merely advising the witness not to testify, but by making it an outright condition of the plea bargain.

In Marquez v. Med. Bd. of California, No. C060456, the Third District decided an action against the Medical Board of California for its failure to establish by resolution, despite a statute requiring it to do so,  the passing score required for the examination used to license people to practice medicine in California.  In reversing the trial court's decision, the court held that plaintiff is entitled to an order directing the board to comply with the statute.  However, the court concluded that while she is entitled to re-take the test, she is not entitled to an order deeming her to have passed the test.

In People v. Rodriquez, No. F057533, the Fifth District faced a challenge to the sentence imposed on a defendant convicted of receiving stolen property and violating probation for prior conviction in 2007.  the 2010 amendment to Penal Code section 4019 contains no saving clause as it did in Estrada, and as such, there is no clear and compelling implication that the Legislature intended the amendatory statute at issue to apply retroactively.  The court also rejected defendant's equal protection challenge to the prospective application of the 2010 amendment to section 4019, as it is much more than merely reasonably conceivable that the Legislature enacted the 2010 amendment with the additional purpose of increasing the incentive for good conduct.

Lastly, in People v. Mills, No. S059653, the Supreme Court of California faced a criminal defendant's challenge to his conviction for first-degree murder and sex crimes and trial court's imposition of a death sentence.  In affirming the conviction and the sentence of death, the court rejected as meritless defendant's multitude of claims including  that the trial court lacked impartiality when it conducted voir dire, that the trial court committed various evidentiary errors, and alleged prosecutorial misconduct. 

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Ruling on Conservatorship Under the Lanterman-Petris-Short Act

In Conservatorship of John L., No. S157151, the Supreme Court of California dealt with whether the trial court committed any statutory or due process violation in granting a petition to appoint a public conservator under the Lanterman-Petris-Short Act (LPS Act).

In upholding the decision of the trial court, the Supreme Court held that the LPS was not violated when it excused the conservatee's production and proceeded with the hearing without his attendance. 

Furthermore, the conservatee's due process rights were not violated in establishing the conservatorship in the individual's absence, consistent with decisions in civil proceedings, that even where certain rights are implicated are substantial, they can be waived by an attorney with the client's express consent. 

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The California Court of Appeal for the First District decided a criminal matter, a CFCA claim, and a challenge to a trial court's injunctive order requiring homeowners bring their home back down to size.

In Clear Lake Riviera Cmty. Ass'n v. Cramer, No. A122205, the court faced a challenge to the trial court's decision ordering the homeowners to abate their violation by bringing their home into compliance. In affirming the trial court's decision, the First District held that the association's height guideline was validly adopted, of which defendants were in violation of by building their home outside of the compliance despite the warning.  Therefore, in order to come within the compliance, the trial court did not abuse its discretion in ordering the defendants to cut their house down in height rather than pay damages.

In People v. McPike, No. A122030, the court faced a challenge to a conviction for both misdemeanor petty theft and a felony count of receiving stolen property.  In reversing the conviction, the court held that the defendant cannot be convicted of stealing and receiving the same property.  The court further held that in determining which crime to affirm, there is no practical or policy reason to deny the jury's verdict in affirming the greater of the two offenses. 

In San Francisco Unified Sch. Dist. v. Laidlaw Transit, Inc., No. A123914, the court decided whether plaintiff's California False Claims Act (CFCA) claim against the defendant can survive a demurrer.  In reversing the trial court's judgment in favor of the defendant, the court held that under the CFCA, where a vendor impliedly certifies compliance with its express contractual requirements when it bills a public agency, allegations that the implied certification was false and had a tendency to influence the public agency's decision to pay for goods or services are sufficient to survive a demurrer. 

The Second District decided the issue of whether a parties' arbitration agreement allowed for an expanded judicial review and a criminal defendant's challenge to his conviction. 

In Gravillis v. Coldwell Banker Residential Brokerage Co., No. B216373, the court dealt with the issue of whether the parties' arbitration agreement provided for an expanded scope of judicial review, arising from plaintiff's broker's failure to disclose extensive structural damage to his home.  Trial court's affirmance of an arbitrator's award of damages in favor of the plaintiff is upheld as the parties' agreement does not explicitly and unambiguously provide for an expanded scope of such review.

In People v. Carter, No. B210203, the court faced a challenge to a criminal defendant's conviction  for second degree robbery.  First, in affirming the conviction, the court concluded that defendant did not make a Marsden motion at his arraignment, and as such, the trial court was not required to hold such a hearing.  Second, the trial court did not err in denying the motion to suppress because the traffic stop was not unlawful.  And third, the court's failure to pre-instruct the jury with CALCRIM No. 101 was harmless error, as the giving of the instruction would have had not effect on the outcome of the trial. 

Lastly, in People v. Cissna, No. D053464, the Fourth District faced challenge to trial court's denial of a criminal defendant's motion for a new trial.  In reversing the trial court's denial, the court held that defendant's right to an impartial jury was prejudicially tainted by the juror's conduct, as the juror's conversations with the friend were pervasive, focused on merits of the case and the presumption of prejudice has not been rebutted.  On two additional issues, the court held that if the prosecution wishes to introduce the victim's diary, the defense is entitled to examine the entire subject pursuant to appropriate protective orders, and rejected defendant's claim that Penal Code section 288.5 violates his right to a unanimous verdict is rejected.

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The California Court of Appeal for the Second District decided a breach of contract case, a workers' compensation case, an issue of an employer's negligent hiring and retention, and a father's petition in dependency proceedings.

In Diaz v. Carcamo, No. B211127, the court faced a challenge by an employer of one of its drivers involved in an automobile accident arguing that the trial court erred in allowing plaintiff to proceed on theories of negligent hiring and retention of the driver when it had already conceded vicarious liability.

However, affirming the trial court's finding in favor of the plaintiff, the court found that evidence of the employee's prior employment and driving history were properly admitted, that such evidence was not inadmissible as character evidence of the driver, and the jury was properly instructed on negligent hiring and retention.

In Ghadrdan v. Gorabi, No. B210895, the court decided a matter involving breach of contract claims involving a dispute over the ownership of clothing business and commercial property between parties who had been longtime business associates.

In affirming the trial court's ruling to exclude evidence of a plea agreement and conviction of a corporation of which the plaintiff was the CEO and sole shareholder (to impeach plaintiff and show his motive and knowledge), the court held that there was no evidence that plaintiff committed a crime, personally engaged in any of the charged misconduct, or had any knowledge of any misconduct.  Furthermore, the trial court had discretion to exclude it based on its determination that the probative value of the corporate conviction was outweighed by the potential prejudice, waste of time, and confusion.

In Lara v. Workers' Comp. Appeals Bd., No. B214234, the court decided an issue of whether the plaintiff, who had been hired twice by the employer in the span of 12 months as a gardener, was an employee for purposes of the workers' compensation coverage when he sustained injuries.

Applying the Borello factors, the court affirmed the Board's finding that plaintiff was an independent contractor at the time of his injuries, and thus exempt from worker's compensation coverage.

In re Marcos G., No. B215969, the court faced a challenge to a denial of a father's section 388 petition in dependency proceedings.  The father's main contentions were that his motion should have been granted because he is not the offending parent and because the trial court did not follow proper procedures.

Although, the trial court did not follow certain proper procedures, there was no abuse of discretion in the trial court's denial of the motion as it clearly would not be in the child's best interests to grant the father's request and undo most of the case while the father was in custody of the juvenile court.

The Fourth District dealt with an issue of child and spousal support reallocation in marital dissolution proceeding and a defamation case involving potential liability for forwarding an e-mail with defamatory content.

In MacManus v. MacManus, No. G041248, the court faced a challenge to the reallocation of child support to spousal support in parties' marital dissolution proceeding.  In affirming the order, the court concluded that the trial court had broad discretion to consider the 'big picture' concerning the parties' assets and income available for support and, the record showed that it made the past spousal support award on equitable grounds.

In Phan v. Pham, No. G041666, the court decided the issue of whether a recipient of an e-mail containing defamatory content can be held liable for defamation when the recipient forwards the message along with some language of his/her own in the introduction.

The court first analyzed the facts based on footnote 19 in Barrett v. Rosenthal (2006) 40 Cal.4th 33, which stated that although one cannot be held liable for defamation by simply forwarding an e-mail with defamatory content, at some point active involvement in creating/posting defamatory posting would expose a person to liability as an original source. 

The court held that under Barrett, the defendant had not crossed the line and coupled with the holding in Fair Housing Council of San Fernando Valley, the defendant had not made material contribution to the alleged defamatory email.

Lastly, in Elliott v. Workers' Comp. Appeals Bd., No. A125585, the First District clarified the dispute resolution procedure that applies when the employee's physician specifically recommends spinal surgery but the employer's utilization review decision is to deny the treatment. 

In denouncing the holding in Brasher v. Nationwide Studio Fund (2006) 71 Cal.Comp.Cases 1282, and the basis for the Board's finding in favor of the employer, the court reversed the Board's decision and remanded the case directing the employer to authorize the requested surgery or object to the spinal surgery recommendation under section 4062(b) within 10 days of the order to commence the spinal surgery second opinion process.

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