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

April 2010 Archives

Carolina Cas. Ins. Co. v. L.M. Ross Law Group, LLP, No. B215668, concerned a challenge to the trial court's grant of plaintiff-insurer's motion for summary judgment in the insurer's action against its insured-law firm seeking to recover $175,000 it had paid to settle a legal malpractice suit against the law firm.  In affirming the judgment, the court held that the trial court properly granted insurer's motion on the ground that exclusion F in the policy precluded coverage of the underlying legal malpractice action. 

Silvaco Data Sys. v. Intel Corp., No. H032895, involved a plaintiff's suit against Intel Corporation alleging that it misappropriated certain trade secrets used by plaintiff in its software products.  In affirming the trial court's judgment in favor of Intel, the court held that Intel cannot be liable as it never possessed or had access to the source code, but only had executable, machine-readable code compiled by its supplier from source code.  Furthermore, the plaintiff failed to plead a viable claim not based upon a misappropriation of trade secrets. 

In re Jackson W., No. D055622, involved a mother's challenge to the juvenile court's denial of her Welfare and Institutions Code section 388 petition for modifications by which she sought a hearing on whether she received effective assistance of counsel at an earlier stage of the proceeding. In affirming the trial court's decision denying the petition, the court held that a parent, after  proper advisement, may knowingly, intelligently and voluntarily waive the statutory right to be represented by appointed counsel meeting the definition of "competent counsel" under California Rules of Court, rule 5.660(d).  And once the right is waived, the parent is precluded form complaining about counsel's lack of juvenile dependency qualifications.  Furthermore, although the better practice is to file a petition for writ of habeas corpus in the juvenile court, a parent who has a due process right to competent counsel can seek to change a prior court order on the ground of ineffective assistance of counsel by filing a section 388 petition. 

In CMRE Fin. Serv. Inc. v. Parton, No.D055266, the court faced a challenge to the trial court's judgment in favor of plaintiff in an action against a husband and wife for hospital and medical fees, plus interest and attorney fees.  In reversing the judgment, the court held that the trial court erred in entering the judgment against the wife for the hospital and medical fees incurred by her former husband following their separation and in dismissing the wife's cross-complaint against the assignee of the hospital's fee claim.

People v. Delgado, No. B213271, involved a challenge to a conviction for making criminal threat, an attempted criminal threat, dependent adult abuse, and other crimes and an imposition of a four months' imprisonment.  With the exception of the sentencing calculation, as defendant is entitled to the retroactive benefit of an amendment to section 4019 that went into effect January 25, 2010 and entitled to receive conduct credits, her conviction is affirmed. 

Lastly in People v. Redd, No. S059531, the California Supreme Court faced a challenge to a conviction and sentence of death for first degree murder, attempted murders, second degree robbery and other crimes.  The court rejected defendant's various claims of error in ultimately affirming the conviction and the sentence on automatic appeal, including claims regarding detention and arrest of defendant and search of his vehicle, denial of motion for a lineup, admission of out-of-court identifications, prosecutorial misconduct, and various challenges to the California's death penalty scheme. 

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In People v. Williams, No. E048899, the Fourth District faced a challenge to a trial court's denial of restitution for IRS penalties assessed against a company, arising from the embezzlement of more than $50,000 from the company by a former employee, resulting in attorney fees, fees for an internal audit by a CPA firm, as well as penalties and interest assessed by the IRS for unpaid payroll taxes.  In reversing the trial court's denial, the court held that it was an error for the trial court in refusing to order restitution for the IRS penalties as it deprived the company of its constitutional right to receive restitution directly from defendant for lossess it suffered. 

 Batt v. City and County of San Francisco, No. A123253, involved a plaintiff's claim against the City and County of San Francisco claiming that it improperly required hoteliers to apply the city's hotel tax to parking charges, challenging the validity of the administrative regulation that required collection on the grounds that it was not  a proper tax on the "occupancy" of a hotel room.  In affirming the trial court's decision upholding as valid the application of the city's hotel tax parking charges, the court held that S.F. Bus. & Tax Regs. Code section 6.16-1 is a valid delegation to the Tax Collector and the authority of the Tax Collector was not exceeded with the prolulgation of the Hotel Law Guidelines.

Tate v. Wilburn, No. D054609, involved a petitioner's renewed motion to set aside a 1991 child support order, arguing that recent genetic testing showed that he is not the child's father and that the test results constituted new evidence pursuant to Code of Civil Procedure section 1008(b).  However, the father's appeal to the trial court's denial is dismissed as an order denying a renewed motion under section 1008(b) is not appealable. 

Serrano v. Stefan Merli Plastering Co., Inc., No. B215837, concerned plaintiffs' suit seeking attorneys' fees under the private attorney general statute, Code of Civ. Proc. section 1021.5 from a deposition reporter company, arising from a dispute about the reasonableness of fees a deposition reporter sought to charge a nonnoticing party for expedited copies.  In affirming the denial of attorney fees, the court held that the trial court's determination that Serrano I was private litigation and did not result in the enforcement of an important public right is entitled to deference, and it further held that the trial court did not abuse its discretion in denying plaintiffs private attorney general fees because they failed to show the first element of the section 1021.5 test. 

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Decisions in Real Estate Contract, Family Law and Trust Matters

In re K.C., No.F058395, involved a father's challenge to the juvenile court's denial of a petition for relative placement brought by the child's paternal grandparents in dependency proceedings terminating the father's parental rights to his infant son.  In affirming the denial, the court held that the father does not have appellate standing to challenge the order denying a relative placement request once a permanency planning hearing is pending and he has not shown that his interest in the child's companionship, custody, management and care is, rather than may be, "injuriously affected" by the court's decision.

Regents of the University of California v. Kraus, No. B213484 involved a petition by two residuary trust beneficiaries - the Regents of the University of California and the Make-A-Wish Foundation - for restitution funds from the deceased settlor's brother.  In affirming the probate court's order requiring the brother to return $197,402 to a court appointed representative of the Estate and to pay statutory double damages in the amount of $394,804, the court rejected the brother's contention that he should not be required to pay deliver $197,492 to a court appointed personal representative pursuant to section 850 and his section 859 penalty claim. 

In Plaza Home Mortgage, Inc. v. N. Am. Title Co. Inc., No. D054685, the Fourth District dealt with a plaintiff-wholesale residential mortgage lender's suit against defendant-settlement agent after defendant distributed $53,853 to the attorney in fact of the buyer of real property, a payment that was neither authorized by the closing instructions nor disclosed by defendant before it made the payment. 

In reversing the judgment in favor of the defendant, the court held that the trial court erred in finding that there was no breach of the closing instruction contract with plaintiff because escrow had closed and that the trial court also erred in failing to consider whether defendant breached the closing instructions contract when it disbursed the payment and closed the two loans to the buyer/borrower without first notifying plaintiff of the last minute escrow instruction. 

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Riverside Sheriffs' Ass'n v. Bd. of Admin. of the California Pub. Employees' Ret. Sys., No. C061168, concerned a plaintiffs' petition for administrative mandate seeking to overturn a decision of the Board of Administration of the California Public Employees' Retirement System refusing to change the status of the deputy coroners from "miscellaneous" to "local safety members," a classification that would have substantially enhanced their retirement benefits.  In denying the petition, the Third District affirmed the trial court's decision as the principal duties and functions of the deputy coroners do not "clearly" fall within the scope of "active law enforcement" as that term is used in Gov. Code section 20436(a).

In Greb v. Diamond Int'l Corp., No. A125472, the First District faced a challenge to the trial court's order sustaining, without leave to amend, defendant's demurrer to plaintiff's complaint for personal injury and loss of consortium, claiming that the husband (now deceased) suffered injury from exposure to asbestos and asbestos-containing products.  In affirming the order, the court held that Delaware law controls whether defendant is amenable to suit following dissolution and because this suit was filed more than three years after defendant's dissolution, the trial court correctly sustained the demurrer. 

Plummer v. Day/Eisenberg, LLP, No. G041512, concerned an attorney's suit against a law firm, claiming that the law firm converted or interfered with settlement funds recovered in a personal injury action handled by the attorney, the law firm, and another law firm.  In reversing the trial court's grant of summary judgment in favor of defendant law firm, the court held that triable issues exist on the elements of conversion as to whether the attorney had an immediate right to possess the settlement funds through an attorney's lien and defendant failed to show that the attorney's claimed lien is invalid as a matter of law.  The court also found that there are triable issues as to the interference cause of action. 

Luckman P'ship, Inc. v. Superior Court, No. B215298, concerned plaintiffs' suit for negligence and loss of consortium, arising from injuries suffered when the plaintiff fell through a suspended ceiling at a convention center, designed by defendant in 1971.  The Second District granted defendant's petition for writ of mandate in finding that it was entitled to summary judgment on the statute of limitations under Code of Civ. Proc. section 337.1(a) and under the doctrine of independent intervening cause. 

In Communities for a Better Env't v. City of Richmond, No. A125618, the First District faced a challenge to the trial court's judgment in favor of plaintiffs in their suit against a city and Chevron, claiming that an environmental review of a new construction project was flawed because the EIR failed to disclose, analyze and mitigate all the potential environmental impacts of the project. 

In affirming the trial court's judgment for the most part, the court held that the EIR is inadequate as a matter of law because it does not adequately address the issue of whether the project includes any equipment changes that would facilitate the future processing of heavier crudes at the refinery.  Court also held that the trial court correctly concluded that the city's decision to approve the project, after giving the city council final approval over a mitigation plan that Chevron formulates a year later outside the EIR process, does not satisfy CEQA's requirements.  However, the trial court's finding that the city improperly "piece-mealed" the project by failing to include and analyze the hydrogen pipeline as part of the project is reversed as there was no improper segmentation of a larger project here. 

USA Waste of California, Inc. v. City of Irwindale, No.B212719, concerned a challenge to the trial court's denial of a city's motion to strike plaintiff's second amended cross-complaint under the anti-SLAPP statute, arising from a dispute of a landfill operation.  In rejecting the city's claims, the court held that the anti-SLAPP statute does not apply to the causes of action against the city in the second amended cross-complaint because actions to enforce, interpret or invalidate governmental laws generally are not subject to being stricken under the anti-SLAPP statute.  Furthermore, even if the claims in question are based on speech within the meaning of section 425.16, they are not protected under the statute as being in connection with "a public issue or an issue of public interest."

Lastly, in Pearson Dental Supplies, Inc. v. Superior Court, No. S167169, the California Supreme Court dealt with the court of appeal's reversal of trial court's decision, concluding that an arbitrator's error in plainly misapplying the relevant tolling statute was not a valid basis for vacating an arbitration award.  However, under the particular circumstances of this case, in which a clear error of law by an arbitrator means that an employee subject to a mandatory arbitration agreement will be deprived of a hearing on the merits of an unwaivable statutory employment claim, the trial court did not err in vacating the award.  Thus, judgment of the court of appeals is reversed but, the employee's claim that language in the arbitration agreement stating that he is relinquishing not only the right to go to court, but also to access administrative remedies is unconscionable is rejected. 

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Fulton v. Med. Bd. of California, No. B215102, dealt with a plaintiff's suit against the Medical Board of California claiming that the publication of his disciplinary information on its web site, including information about a medical malpractice judgment entered against plaintiff, and the surrender, retirement and indefinite suspension of his licenses to practice medicine in other states, is not required to be disclosed because he was no longer licensed in California.  The court denied plaintiff's motion for declaratory and injunctive relief and affirmed the Second District's decision as the Business and Professions Code sections 803.1 and 2027 required the Board to publish the information.

In In re Andrew A., No. D055956, the Fourth District faced a challenge to the juvenile court's dismissal of a section 300 juvenile dependency petition based on its determination that the jurisdictional allegation were not proven.  Because under the particular procedural circumstances of the case, the juvenile court did not have the legal authority to entertain the birth mother's motion for reconsideration of its jurisdictional finding, the dismissal of the petition is reversed.

In Brown v. Valverde, No. A121575, the First District faced a challenge to the trial court's grant of a petition for a writ of mandate in a Department of Motor Vehicles (DMV) administrative per se hearing on the issue of suspension of petitioner's driver's license following his arrest for driving under the influence.  In reversing the trial court's grant of the writ on the ground that the petitioner can seek discovery of confidential peace officer personnel records pursuant to Pritchess v. Superior Court and its statutory codifications, the court held that the Pritchess procedure has no place in a DMV administrative per se hearing.

In re Eric S., No. A125758, concerned a challenge to a juvenile court's order requiring a juvenile ward to pay direct victim restitution that included medical costs for treatment of the victim even though the victim was covered through Kaiser North California.  In affirming the ruling, the court held that the reasoning in People v. Duong, which held that victim restitution ordered against adult offenders under Penal Code section 1202.4 may include amounts billed for medical services provided by a health maintenance organization (HMO) even when the victim is an HMO member not required to pay for those medical services, applies equally to direct victim restitution ordered in wardship cases under Welfare and Institutions Code section 730.6. 

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In People v. Mathers, No. C060425, the Second District faced a challenge to a conviction for possession of a forged completed check, second degree burglary, and other crimes and sentenced to a prison term of nine years four months.  Trial court's conviction of defendant is reversed as to passing or possessing a fictitious check in violation of section 476 because the checks were genuine rather than fictitious.

In People v. Tepetitla-Cruz, No. E046846, the Fourth District faced a challenge to a conviction for committing lewd and lascivious acts on a minor and other related crimes and a sentence of 15 years to life, plus 26 years.  In affirming the conviction and the sentence, the court rejected defendant's claims that the trial court erred in its jury instructions on forcible lewd and lascivious act and on the lesser included offense to forcible lewd and lascivious acts on minor.

Walton v. William Powell Co., No. B208214, concerned plaintiffs' negligence and strict liability suit against a defendant, manufacturer, alleging that the asbestos-containing valves made by defendant caused plaintiff's lung cancer and other medical illnesses.  In reversing the jury verdict in plaintiffs' favor and a judgment awarding them $5,660,624.39 in damages, the court held that plaintiff's injuries stemmed entirely from exposure to asbestos-laden products for which defendant is not liable. 

In H.S. v. Sup. Ct., No. E049923, the Fourth District dealt with a married couple's petition for writ of mandate challenging the trial court's order for genetic testing, arising from the wife's former lover's petition to establish paternity of the wife's child.  In granting the petition, the court held that ordering the genetic testing would be burdensome and serve no useful purpose when there is no reason to recognize the ex-lover as a presumed father other than the Paternity Opportunity Program (POP) declaration signed by the wife shortly after giving birth, which is voidable when executed by a married woman. 

Ellison v. Sequoia Health Servs., No. A124408, concerned a challenge to the trial court's denial of plaintiff's petition for writ of mandate to compel the reinstatement of his privileges following his termination of medical staff membership and hospital privileges.  In affirming the trial court's denial, the court held that the defendant's bylaws gave the Board the authority to exercise its own independent judgment as to penalty and it properly exercised that power.  Furthermore, the court held that the Board did not violate plaintiff's fair procedural rights or the peer review statutes by imposing a disposition more severe than one initially recommended by the Medical Executive Committee or in basing its decision on ethical issues identified during the peer review process.  Lastly, the court rejected plaintff's contention that the result in this case was precluded by federal regulations. 

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Decisions in a City's Validation Action and Family Law Matters

City of Cerritos v. Cerritos Taxpayers Ass'n, No. B214530, involved a validation action brought by a city and public agencies under section 860 of the Code of Civ. Proc. to determine the validity of a financing agreement involving senior and low to moderate income public housing development. 

In rejecting the challenges brought by city taxpayers and other community groups, the court affirmed the trial court's judgment in favor of the city and public agencies in holding that the purchase and renovation of the property was a proper use of the low-moderate income housing fund, and that Article XXXIV of the California Constitution does not require submission of the project to a vote of the electorate.  Furthermore, the transaction is not invalidated by reason of the district's lease of a property without complying with Gov. Code section 54222 and there is no merit to the taxpayers' claim that the agency failed to comply with section 33433.  Lastly, the court held that common law doctrine of "incompatibility of office" does not apply.

In re Andy G., No. B215772, concerned a challenge to juvenile court's orders adjudging a father's two-year-old son a dependent child of the juvenile court, refusing to release the child to the father, and ordering the father to attend sexual abuse counseling for perpetrators.  In rejecting the father's sufficiency of evidence challenge, among others, the court affirmed the orders in holding that there is sufficient evidence to support the juvenile court's findings that the child is at risk of sexual abuse based on the father's sexual abuse of the child's 12- and 14-year-old half-sisters.

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Durell v. Sharp Healthcare, D054261, and Hale v. Sharp Healthcare, No. D054637, both involved a  putative class action against defendant-healthcare provider, alleging violations of the unfair competition act and the Consumers Legal Remedies Act (CLRA) and other claims, claiming that defendant engaged in deceptive and unfair practices by billing uninsured patients the full standardized rates for their services, while giving substantial discounts to patients who are covered by Medicare or private insurance.

In Durell v. Sharp Healthcare, the Fourth District affirmed the trial court's dismissal after sustaining without leave to amend defendant's demurrer to plaintiff's second amended complaint in concluding that the court properly sustained the demurrer on all causes of action and that plaintiff has not met his burden of showing that the trial court abused its discretion in dismissing the complaint without leave to amend.  In Hale v. Sharp Healthcare, the court affirmed the trial court's dismissal of the complaint after sustaining without leave to amend defendant's demurrer for the most part, but reversed the judgment as to the UCL and CLRA causes of action as the plaintiff's second amended complaint sufficiently alleges plaintiff's standing. 

In Wallace v. GEICO Gen. Ins. Co., No. D055305, the Fourth District faced a challenge to the trial court's order striking the class allegations in plaintiff's proposed class action lawsuit filed against GEICO General Insurance Company and its employees under Business and Professions Code section 17200 claiming that GEICO wrongly denied coverage for body shop repairs performed at labor rates it considered to be above the prevailing rate.  In reversing the trial court's order striking the class allegations, the court held that the trial court erred in ruling that due to GIECO's offer to compensate plaintiff for her injury, she lost her standing to act as a representative plaintiff, as the pick off cases apply to a class action alleging a violation of section 17200. 

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People v. King, No. B210909 involved a challenge to a conviction of a police officer for sexual assault of a female driver, arising from a traffic stop for making an illegal U-turn.  In affirming the conviction, the court rejected defendant's ineffective assistance of counsel claims as, even if his counsel did err, any such error did not prejudice him to require reversal.  Defendant's claim that the trial court erred in denying him the right to cross-examine witnesses and in failing to properly instruct the jury are also rejected.  Lastly, substantial evidence supported defendant's convictions and the sentence imposed was constitutional.

People v. Hernandez, No. D055331 involved a defendant's challenge to his conviction for first degree murder, claiming that the standard jury instruction on provocation was incomplete and misleading as it relates to second degree murder.  In affirming the conviction, the court held that, even without express instruction, it was satisfied that the jurors understood that the existence of provocation can support the absence of premeditation and deliberation, and without a request for further instruction from the defendant, the trial court was not required to amplify or clarify the instructions to explain this point. 

In Lane v. City of Sacramento, No. C060744, the Third District dealt with plaintiffs' consolidated cases against the City of Sacramento, seeking to hold the city liable for injuries they sustained when one of the plaintiff's car struck a concrete divider on a city street.  The trial court granted summary judgment in favor of the city on the ground that plaintiffs failed to raise a triable issue of fact as to whether the divider was a dangerous condition of public property.  In reversing the judgment, the court held that the trial court erred in granting the summary judgment in favor of the city as the city failed to show that it was entitled to judgment as a matter of law. 

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In People v. Yokely, No. B213003, the Second District faced a challenge to a conviction for murder at retrial, following district court's grant of defendant's petition for habeas relief based on its findings that his constitutional rights had been violated because defendant's attorney was not present at the live lineup where defendant was identified as the murderer and because his attorneys failed to object to admission of the lineup and in-court identifications by the witnesses at trial. 

In affirming the conviction, the court held that the findings of the federal district court did not preclude the trial court from determining independently the admissibility of the in-court identification testimony of the two witnesses and the court's conclusion that the testimonies had an origin independent of the illegal live lineup was supported by substantial evidence. 

In re Adam D., No. B219898, involved a challenge to the juvenile court's order for informal supervision of petitioners and their children. In rejecting the parents' claim that the evidence is insufficient to support the finding that their youngest child was neglected within the meaning of section 300(b),  the court held that the evidence adequately supported the juvenile court's findings and its order of informal supervision did not result in a miscarriage of justice.

In People v. Taylor, No. S062562, the California Supreme Court addressed a challenge to a conviction for first-degree murder of an 80-year-old victim, forcible rape of an elderly victim while engaged in a residential burglary and other related crimes.  In affirming the imposition of  a death sentence and the conviction in its entirety, the court rejected the death-row inmate's various claims, including his claim that the court abused its discretion in denying his requests for substitution of trial counsel and claims of constitutional violations in selecting jurors in capital cases. 

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Convictions for False Personation and Drug Offenses In DUI Arrests

In People v. Stacy, No. C060673, the Third District faced a challenge to a conviction for false personation, driving under the influence of alcohol and related offenses, claiming insufficient evidence to support the conviction.  However, as there was ample evidence to support the jury's finding that the individual, whose name and other information was given to the officer by the defendant, was an actual person and as such, there was sufficient evidence to convict defendant on the charge of false personation.

In People v. Shafrir, No. A125880, the First District faced a challenge to trial court's grant of defendant's motion under Penal Code section 995 to dismiss the counts alleging violations of Health and Safety Code section 11359 and 11360(a), following denial of his motion to suppress evidence, in a prosecution for DUI and drug related offenses.  In reversing the trial court's decision, the court held that the magistrate's denial of defendant's motion to suppress evidence of bags of marijuana and $50,000 found in defendant's vehicle during the inventory search was proper as the CHP officers' initial decision to remove the "brand new Mercedes" from the neighborhood known as a "high crime area" was reasonable under the Fourth Amendment. 

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Decisions in Criminal, Environmental and Anti-SLAPP Matters

People v. Landon, No. A123779 involved a challenge to the trial court's imposition of a four to eight months' imprisonment upon a defendant for a DUI conviction with four prior DUI convictions and another subsequent DUI arrest.  In affirming the conviction and the sentence, the court rejected defendant's claim that the trial court's refusal to grant her probation based on section 1203(e)(4) violated her due process rihgts as she failed to establish prejudice.  However, defendant is entitled to custody credits of 385 days as the amended section 4019 applies retroactively.

San Joaquin River Exch. Contractors Water Auth. v. State Water Res. Control Bd., No. C060697 concerned a challenge to the State Water Resources Control Board's approval of two amendments to the Water Quality Control Plan for the Sacramento River and San Joaquin River Basins.  In rejecting plaintiffs' claim that the amendments violate state and federal water law and CEQA, the court denied their petition for a writ of mandate and affirmed the trial court's decision as it was thorough and well-reasoned decision.

In People v. Reed, No. A123967, the First District faced a challenge to a conviction for aggravated sexual assault of a child and related offenses and a sentence of 230 years to life under the three strikes law.  Although, most of defendant's challenges to his conviction is rejected, the conviction is reversed as the trial court erred in failing to inquire into reasons for defendant's desire to move for new trial based on ineffective assistance of counsel. 

People v. Becker, No. E047898 involved a challenge to a conviction for possession of Ecstasy and other crimes.  In rejecting defendant's main contention that there is insufficient evidence to support his Ecstasy possession conviction as it is neither a controlled substance nor an analog of any controlled substance for purposes of section 11377, the court held that the investigator's testimony was sufficient to show that Ecstasy is either a controlled substance itself or a controlled substance analog of methamphetamine.

People v. Chappelone, No. A121763 involved a challenge to the trial court's restitution order in a conviction of a husband and wife for conspiracy to commit grand theft and other related crimes against the wife's employer, Target.  In reversing the restitution order in the amount of $278,678, the court held that the trial court abused its discretion by awarding Target a sizable windfall when it ordered restitution in the amount that it did rather than calculating a rough approximation.  For instance, the trial court erred in ordering restitution based on the merchandise's retain price instead of wholesale price and by allowing Target to retain the recovered merchandise and ordering defendants to pay Target for the stolen merchandise. 

All One God Faith, Inc. v. Organic & Sustainable Indus. Standards, Inc., No. A123009 involved a challenge to the trial court's denial of defendant's anti-SLAPP motion in plaitniff's suit against defendant-trade association and certain of its members alleging that its certification of personal care products as "organic" would constitute unfair competition and misleading advertising.  In affirming the denial, the court held that defendant has not met its burden of showing that the challenged cause of action arises from protected activity under the anti-SLAPP statute as its certification activities are not in furtherance of its speech on connection with a public issue or issue of public interest. 

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Decisions in Civil, Criminal, Insurance, and Contract Matters

People v. House, No. B212057 involved a challenge to the trial court's imposition of restitution and parole revocation fines on a defendant convicted of various theft crimes.  In affirming the decision, the Second District held that the defendant forfeited her right to object to the amount of the fine and failed to establish that her counsel provided ineffective assistance faililing to object.  However, because the recent amendment to the Penal Code section 4019 applied retroactively, trial court's calculation of pre-sentence custody credits is vacated.

People v. Botello, No. B212183, involved defendants' challenge to a sentence term of 80 years to life each, for murder and related crimes.  However, because the evidence was insufficient to support the charged firearm enhancements and failure to plead Cal. Penal Code section 12022.53(e)(1), failure to ensure jury findings under this subdivision, and failure to raise the provisions at sentencing and obtaining a sentence that in fact violated the subdivision, the prosecution forfeited its right to rely on that subdivision, and therefore the murder sentences are remanded for resentencing. 

In Garcia v. World Savings FSB, No. B214822, the Second District faced a challenge to the trial court's grant of summary judgment in favor of the defendant in plaintiff's action against the defendant-lender alleging wrongful foreclosure, breach of contract promissory estoppel and unfair business practices.  In affirming the summary judgment for defendant in part, the court held that although the facts presented at trial established detrimental reliance sufficient to support a claim based on promissory estoppel, there was no exchange of true consideration.  However, the judgment is reversed in part where plaintiffs presented sufficient evidence of a definite promise from defendant's employee to support their promissory estoppel claim. 

In United Enters., Inc. v. Superior Ct. (Royal Indem. Co.), the Fourth District dealt with an action by an insurer seeking a declaration that it was not required to defend the petitioner in an underlying suit for recovery of environmental response costs, damages, and other forms of equitable and statutory relief arising from the operation of a shooting range.  In granting the petitioner's request for a writ of mandate, the court held that under Montrose Chemical Corp. v. Superior Court, 6 Cal.4th 287 (1993), the petitioner is entitled to a stay of real property in interest's summary judgment motion.

In Salenga v. Mitsubishi Motors Cred. of Am., Inc., No. D055228, the Fourth District faced a challenge to the dismissal of the complaint without leave to amend in a cross-complaint seeking to restrict the business practice in which creditors obtained deficiency judgments against vehicle buyers who had defaulted on their auto loans, under certain circumstances, pursuant to the Rees-Levering Motor Vehicle Sales and Finance Act.  In reversing the decision, the court held that it would have been better exercise of discretion for the trial court to allow leave to amend as there exists a realistic possibility of amendment for a successful allegation of the claim under the Act. 

In Alvarez v. Super. Ct., No. A125626, the First District dealt with a petition for a writ of mandate seeking to compel the trial court to accept defendant's plea bargain for his robbery convictions while on bail.  In denying the petition, the court held that the trial court's judicial assignment procedure was authorized by existing law and no new local rule was required for its implementation. 

In Porter v. Wyner, No. B211398, the Second District faced a challenge to the trial court's order granting a new trial following judgment for plaintiffs arising from an underlying suit where the defendant represented the plaintiffs and allegedly promised to pay plaintiffs certain proceeds from their attorneys' fees.  However, because the communications between the attorney and client were not within the mediation confidentiality protection of Evidence Code section 1119, trial court's grant of new trial is reversed. 

Sabi v. Sterling, No. B205279, concerned a plaintiff's action claiming that she became eligible to receive Section 8 assistance payments but that the defendants refused to participate in the program and thus refused to accept rent subsidy that would have been paid under the Section 8 program for plaintiff's apartment.  In affirming the judgment in favor of the defendant, the court held that the Section 8 assistance payments were not paid to the Public Housing Authority, but to the landlord and the section 8 payments to the landlord were not included in the source of income. 

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City's Violation of the State Aeronautics Act and the CEQA Upheld

Watsonville Pilots Ass'n v. City of Watsonville, No. H033097, concerned a plaintiffs' mandamus petition challenging the City of Watsonville's certification of a final environmental impact report (FEIR) and its approval of the 2030 General Plan (Plan), claiming that the Plan violated the State Aeronautics Act (SAA) and the city's certification of the FEIR violated the CEQA. 

In affirming the trial court's ruling, the court held that Plan violated the SAA as the city did not have the discretion to modify the criteria to suit itself based on its own determination that a particular runway is a low-activity runway.  The court also affirmed that trial court's ruling that the city violated the CEQA by certifying and FEIR that failed to adequately analyze impacts on aviation and failed to analyze a reasonably range of alternatives.  Lastly, the court agreed with the trial court that the FEIR did not inadequately analyze the impact of the Plan on the water supply.

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In re Marriage of Ruth & Paul Zimmerman, No. B211381, concerned a petition to set aside prior child support orders against petitioner's former husband based on the husband's alleged fraud.  The court of appeal affirmed the denial of the petition on the ground that petitioner simply challenged false evidence allegedly adduced by the husband and thus did not set forth a situation involving extrinsic fraud, and hence the statute of limitations was not equitably tolled.

In People v. Friedeck, No. B213944, the court of appeal affirmed the trial court's denial of probation to defendant, who had been convicted of a drug offense, because the trial court did not err in finding defendant was not eligible for Proposition 36 based on his implied refusal of treatment.

Swahn Group, Inc. v. Segal, No. C056970, concerned a legal malpractice action alleging malpractice by defendants in an underlying breach of contract case.  The court of appeal reversed the dismissal of the action, holding that the requirements for judicial estoppel were not met since the trial court did not adopt the claims advanced by the plaintiffs in the settlement of the rescission action that conflicted with claims advanced in the present action.

Jones v. Regents of the Univ. of Cal., No. A123948, involved a petition for writ of mandate under the California Environmental Quality Act challenging the certification of an environmental impact report (EIR) by the Board of Regents of the University of California regarding projected development of the Lawrence Berkeley National Laboratory.  The court of appeal reversed the partial grant of the petition, on the grounds that 1) although an EIR must consider a reasonable range of potentially feasible alternatives and compare their environmental impacts, it did not have to identify and analyze alternatives that would not meet a project‟s objectives nor did it have to discuss every possible permutation of alternatives; 2) real parties in interest's rejection of an off-site alternative was supported by substantial evidence; and 3) petitioners failed to exhaust their administrative remedies on the issue of whether the regents were required to recirculate the draft EIR after adding a discussion made in response to public comments.

In People v. Zamani, No. H032414, the court of appeal affirmed defendant's conviction for felony appropriation of lost property, holding that 1) the crime of appropriation of lost property was not a specific intent offense, and thus there was no instructional error; and 2) defendant's prior act of returning lost property had no relevance to whether he knew or had means to find the identity of the true owner of the property at issue.

Kirk v. First Am. Title Ins. Co., No. B218956, involved an action alleging violations of consumer protection laws by title insurers.  The court of appeal reversed the trial court's order disqualifying a law firm on the defense side, on the ground that, in the circumstances of the case, automatic vicarious disqualification is not required, and instead, there was a rebuttable presumption that a disqualified attorney's knowledge of client confidences was imputed to the firm, which could be refuted by evidence that the law firm adequately screened the attorney from the others at the firm representing the adverse party.

Regents of the Univ. of Cal. v. Superior Court, No. B210693, concerned an action against the Regents of the University of California for negligence because of alleged wrongdoing and mishandling of donated bodies by the UCLA Willed Body Program.  The court of appeal reversed the denial of summary judgment by a writ of mandate, holding that, because plaintiffs' decedent's body donation was "irrevocable" upon her death, plaintiffs could not enter into an agreement with UCLA regarding the body, and representations UCLA allegedly made to plaintiffs did not create a duty to them.

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Escobar v. Flores, No. C061316

Escobar v. Flores, No. C061316, involved a petition under the Hague Convention on the Civil Aspects of International Child Abduction (the Convention) for the return of her eight-year-old son to his habitual residence with her in Chile.  The court of appeal affirmed the denial of the petition, holding that the trial court did not err in refusing to order defendant to return the child based on a finding that the child objected to being returned to Chile and had attained an age and degree of maturity at which it was appropriate to take account of his views.

As the court wrote:  "This appeal arises out of a petition filed by plaintiff Karla Cecelia Escobar (mother) under the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention or the Convention) for the return of her eight-year-old son, Cesar, to his habitual residence with her in Chile. The primary issue on appeal is whether the trial court erred in refusing to order defendant Cesar Flores (father) to return the child based on a finding that the child objected to being returned to Chile and had attained an age and degree of maturity at which it was appropriate to take account of his views. Finding no error in that finding, and no merit in the other arguments mother asserts on appeal, we will affirm."

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People v. Cantu, No. E048651, dealt with a challenge to a conviction of defendant for infliction of corporal punishment upon a cohabitant for assaulting his girlfriend. In reversing the judgment, the court held that the trial court erred in enforcing the plea bargain that the parties had entered into but from which the prosecution withdrew before the defendant pled guilty in open court.

In McGuigan v. City of San Diego, No. D055199, the court faced a challenge to the trial court's denial of plaintiff's motion for attorney fees incurred during the prior appeal of the settlement judgment, arising from the plaintiff's suit against a city as a class representative involving underfunded retirement plans. In affirming the denial, the court held that because all of the statutory criteria were not met for such an award, the court therefore lacked discretion to make a further award of fees.

People v. Milosavljevic No. D055327, involved a challenge to a conviction of defendant for rape and various related offenses involving multiple victims. However, the court affirmed the conviction for the most part, but reversed and remanded defendant's conviction on count 52 for violation of section 222 as the trial court erred by not giving a unanimity instruction regarding count 52, and also reduced defendant's section 1465.8 fine to $740.

People v. Bui, No. A119404, involved a challenge to a conviction for burglary and other related offenses. In affirming the conviction, the court held that the Supreme Court's decision in Presley v. Georgia (2010)_ U.S._[130 S.Ct. 721] does not alter the "de minimus" doctrine recognized by the California Supreme Court on which prior decision relied in concluding that any error in exclusion of persons from the courtroom to be de minimus.

Alatriste v. Cesar's Exterior Designs, Inc., No. D054761, concerned a homeowner's suit against a defendant seeking reimbursement of the $57,500 he paid defendant for landscaping work under a statute allowing a party to recover "all compensation paid to an unlicensed contractor." In affirming the trial court's judgment in favor of the plaintiff, the court held that plaintiff's prior knowledge of defendant's unlicensed status does not bar his section 7031(b) reimbursement claim. Furthermore, plaintiff is entitled to recover the total amount paid even though defendant was licensed during a portion of the work, and plaintiff is entitled to recover payments for materials retained by him.

People v. Sup. Ct., No. B220346, involved People's petition for a writ of mandate challenging the trial court's grant of defendant's motion to dismiss his murder charges. In granting the petition, the court held that the trial court erred in granting defendant's motion to dismiss murder charges as the evidence before the grand jury was sufficient to support a rational ground for assuming the possibility that defendant decided to continue to drive his truck down a highway with an actual awareness of the great risk of harm his actions created, resulting in the deaths of two people.

In People v. Dowl, No. F057384, the court faced a challenge to a conviction for possession of marijuana for sale. In affirming the conviction, the court held that a police officer need not qualify as a medical marijuana expert in order to render an opinion that marijuana being possessed is for sale in cases where the defendants raises an affirmative defense under California's Compassionate Use Act of 1996.

Arenas v. El Torito Restaurants, Inc., No. B211301, involved a plaintiffs' action claiming they were allegedly misclassified as exempt employees from overtime wage laws. In affirming the trial court's denial of motion to certify a class of plaintiff-restaurant managers, the court held that the trial court could properly rule the action was not suitable for class treatment because the common questions of law and fact did not predominate over individualized issues.

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Shalant v. Girardi, No. B211932, involved a trial court's dismissal of an attorney's complaint, finding him to be a vexatious litigant within the meaning of Code of Civil Procedure section 391.  However, because plaintiff was initially represented  by counsel, who filed the complaint on plaintiff's behalf, he did not violate the pre-filing order by later appearing in the case in propia persona and as such, the trial court's dismissal is reversed.

Jocer Enters., Inc. v. Price, No. B218266, involved an action for legal malpractice and indemnity against an attorney and a law firm, arising from defendants' representation of plaintiff in its lawsuit against a former employee for misappropriation of trade secrets.  In affirming in part and reversing in part the trial court's order sustaining defendant's demurrer to the second amended complaint without leave to amend, the court held that, with regard to the legal malpractice claim against the attorney, the sustaining of the demurrer is affirmed, but the plaintiffs should be granted leave to amend as the attorney was absent from California and as such, the fourth tolling provision tolled the one-year limitations period.

People v. Sutton, No. S166402, involved a challenge to the trial court's action in delaying trial in the underlying criminal proceedings on the basis that defendant's court-appointed defense attorney was engaged in another trial that had extended longer than anticipated.  In affirming the court of appeal's affirmance of the trial court's action, the Court held that People v. Johnson, 26 Cal.3d 557 (1980), should not be understood to preclude a trial court from finding good cause to delay trial under such circumstances as presented in this case. 

People v. Noriega, No. S160953, dealt with the court of appeal's reversal of trial court's conviction of defendant for murder on the ground that the replacement of appointed counsel based on perceived conflict of interest violated defendant's right to counsel under the California Constitution and that it was an abuse of discretion under state statutory law.  In rejecting this conclusion and reversing the court of appeal's decision, the Court held that the trial court's replacement of counsel did not violate defendant's right to counsel under either the federal or state constitution and although the replacement was an abuse of discretion under state statutory law, the error does not require reversal as defendant has failed to establish prejudice. 

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Melton v. Boustred, No. H033148 involved a plaintiffs' action against a defendant who hosted a party where plaintiff was attacked, beaten, and stabbed by a group of unknow individuals.  In rejecting plaintiffs' main contention that defendant owed them a duty of care not to actively creat an out-of-control and dangerous public MySpace party and that the unrestricted MySpace invitation was an active conduct of a property owner giving rise to liability for the criminal acts of a third party, the court held that no legal duty arose under the circumstances as the case presents neither misfeasance nor a special relationship.  Thus, the court affirmed the trial court's order sustaining defendant's demurrer.

People v. Nakai, No. E046559, dealt with a defendant's challenge to his conviction for attempting send harmful matter to a minor with the intent to seduce a minor.  In rejecting defendant's argument that the trial court erred by not instructing the jury on the lesser included offense of attempting to distribute harmful matter to a minor, the court held that the trial court did not err as there was no substantial evidence that defendant committed only the lesser offense and not the greater one.  Furthermore, because the critical element between the lesser offense and the greater offense was not disputed, it is not reasonably probable that the jury would have found the defendant guilty of only the lesser offense.  Lastly, the court held that it was not error to deny defendant's motion to suppress evidence related to Yahoo! chat dialogues as the communications were not confidential and thus, not protected by section 632. 

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People v. Turnage, No. C059887, involved an Equal Protection violation claim for the conviction of a defendant for maliciously placing a false or facsimile bomb with the intent to cause others to fear for their safety.  In agreeing with the defendant, the Third District vacated the sentence in holding that a violation of section 148.1(d) is punishable only as a misdemeanor as defendant is similarly situated to someone convicted of the misdemeanor of placing a false WMD that did not cause sustained fear, and the legislative history of the latter provision shows that there is a reason to treat the two offenses differently for purposes of punishment.

In LEG Inv v. Boxler, No. C058743, the Third District faced a challenge to the trial court's judgment in favor of the defendant in plaintiff's action seeking partition of a vacation home.  In reversing the judgment, the court held that the right of first refusal in the parties' TIC agreement modifies the statutory right to partition, but does not permanently waive the right to partition. 

In California Am. Water v. City of Seaside, No. H034335, the Sixth District addressed a challenge to the court's findings and a remand order based on an underlying action seeking a declaration of rights among the parties' interests in the production and storage of groundwater from the Seaside Basin.  In affirming the order, the court concluded that no error appears as the order is limited in scope as it is. 

In Stockton Citizens for Sensible Planning v. City of Stockton, No. S159690, the California Supreme Court faced a challenge to the court of appeal's judgment in favor of the city in plaintiffs' suit challenging the city's approval of a Wal-Mart under the CEQA, on the ground that plaintiffs' suit was barred by the 35-day statute of limitations under section 21167(d) of the CEQA.  In affirming the decision, the court held that flaws in the decision-making process underlying a facially valid and properly filed NOE do not prevent the NOE from triggering the 35-day period to file a lawsuit challenging the decision that the agency has approved a CEQA-exempt project.  Furthermore, plaintiffs' claim that the NOE is itself defective in form and content is rejected as the NOE demonstrates minimal compliance with CEQA. 

People v. Cogswell, No. S158898, involved the question of whether the prosecution had to ask the trial court to order a victim of sexual assault living outside of California be taken into custody and transported to California to testify at defendant's trial in order to show "reasonable diligence" in obtaining the victim's presence at trial, rather than use the victim's preliminary hearing testimony.  In answering in the negative, the court reversed the lower court's ruling and held that the prosecution did use reasonable diligence in obtaining the witness's presence and resort to the Uniform Act's custody and delivery provision to ensure the victim's presence at the trial would have been an action far more extreme than the fine imposed in People v. Smith. 

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