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

May 2010 Archives

In In re Damian M., No. D055552, the Fourth District faced a challenge to the juvenile court's denial of minor-defendant's request for deferred entry of judgment (DEJ), after admitting that he possessed the 10.1 pounds of marijuana for sale.  In affirming the judgment, the court held that the juvenile court was well within its discretion in denying DEJ to the minor under the circumstances of the offense he committed and the criminal sophistication shown by his conduct.  Furthermore, a probation condition requiring the minor's parents to participate in the minor's school program is a legitimate remedial measure designed to aid in preventing further delinquent behavior by the minor.   

Martinez v. Ford Motor Co., No.B214955, concerned an action for strict and negligent product liability, brought by two survivors and the heirs and estates of two decedents from a car crash in Mexico of a Ford vehicle that had been purchased in San Diego.  In reversing the trial court's dismissal of the complaint for forum non conveniens, the court noted that the defendants used a California court for discovery they could not have obtained in Mexico to get evidence unrelated to their forum non conveniens motion, and having availed themselves of the advantages of California courts to the prejudice of plaintiffs, defendants cannot now be heard to say the state's courts are inconvenient. 

Villa Vicenza Homeowners Ass'n v. Nobel Court Dev., LLC, No. D054550, concerned a challenge to the trial court's denial of developers' motion to compel arbitration in a homeowners association's suit for construction defects.  In affirming the decision, the court held that the recorded CC&R's, standing alone, are not a contract between the developer and the homeowners association, which only came into existence after the CC&Rs were recorded, and thus, here there has been no showing the association entered into a binding arbitration agreement. 

Chude v. Jack In The Box Inc., No. B212874, concerned a plaintiff's suit against Jack in the Box for sustaining second degree burns when she spilled coffee she had just purchased at the defendant's drive-through window.  In affirming the trial court's grant of defendant's motion for summary judgment, the court held that Civ. Code section 3333.4 bars uninsured motorists and convicted drunk drivers from recovering non-economic damages in certain cases.     

In re Maria R., No. D056110, concerned a challenge to the trial court's findings in a dependency proceeding that petitioner's children were described by Welfare and Institutions Code section 300(d) or (j) and removal of the children from parental custody.

In affirming the judgment of the trial court in part, the court held that there is substantial evidence to support the trial court's findings that the mother's husband sexually abused the two oldest daughters within the meaning of section 300(d) and another daughter was at substantial risk of being sexually abused within the meaning of section 300(j).  Furthermore, the court held that there is substantial evidence to support the trial court's findings that returning the children to the home would pose a substantial danger to their physical health, safety or well-being.  However, with respect to the son, there is not substantial evidence to support the trial court's finding that he was at substantial risk of being sexually abused under section 300(j).  Nonetheless, the court remanded the matter as to the son as section 300(j) does not limit the grounds of dependency adjudication for a child whose sibling has been abused to the same subdivision of section 300 that applies to that sibling, as the plain language of section 300(j) directs the trial court to consider whether there is a substantial risk that the subject child will be abused or neglected.    

People v. Collins, No.S058537, concerned an automatic appeal of a defendant's conviction and death sentence for first degree murder, robbery and kidnapping.  In affirming the conviction and the death sentence, the court rejected defendant's claims of error including: 1) trial court's denial of defendant's motion for a mistrial; 2) asserted Doyle error; 3) prosecutorial misconduct; 4) sufficiency of the evidence of unadjudicated criminal activity; 5) jury instructions; and 6) cumulative error.   

In People v. Jacinto, No. S164011, the Court faced a challenge to the court of appeal's reversal of trial court's decision granting defendant's motion to dismiss the charges in a prosecution of defendant for murder.  In affirming the judgment of the court of appeal, the court held that, under the circumstances of this case, the deportation of a sole witness favorable to the defense did not violate defendant's federal and state constitutional rights to the compulsory attendance of witnesses in his favor.     

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In Howard v. County of San Diego, No. D055419, the Fourth District dealt with plaintiffs' suit against a county claiming that the county inversely condemned their property when it allegedly refused to process plans for a metal barn on their property, because its location was in the footprint of a potential road.  In reversing the trial court's grant of county's motion for judgment on the pleadings and dismissal of the complaint, the court held that the trial court erred in refusing to grant leave to amend because an issue of fact exists as to whether the county's decision was "final" and whether any further attempt by plaintiffs to exhaust their administrative remedies would be futile.  The court went on to hold that, if what plaintiffs seek to accomplish regarding development of their property can only  be remedied through a general plan amendment, they have adequately exhausted their administrative remedies because a general plan amendment is a legislative, not administrative, process. 

Sandarg v. Dental Bd. of California, No. B210072, concerned a challenge to the Superior court's denial of plaintiff's petition for a writ of mandate seeking reinstatement of his dental license, which was revoked by the Dental Board of California.  In affirming the denial of plaintiff's petition, the court held that the standard of proof for a petition to revoke a dental licentiate's probation is preponderance of the evidence.  

Huverserian v. Catalina Scuba Luv, Inc., No. B212823, concerned a wrongful death action against a scuba diving equipment rental company for the death of plaintiff's son arising from a scuba diving incident.  In reversing the trial court's grant of summary judgment in favor of the defendant, the court held that the exculpatory language at issue is inapplicable and provides no defense upon which summary judgment may be based.     

Adolph v. Coastal Auto Sales, Inc., No. G041771, concerned a plaintiff's suit against an automobile dealer for failing to transfer ownership of a trade-in vehicle to itself, causing her to be charged with parking fines, towing and impound fees, and a tax garnishment related to the trade-in.  In affirming the trial court's denial of defendant's petition to compel arbitration, the court held that the trial court's factual finding that defendant waived its right to arbitrate is supported by substantial evidence.     

Barnett v. First Nat'l Ins. Co. of Am., No. B203310, concerned plaintiffs' suit against their home owner's insurance company for damage to their home.  In affirming the trial court's denial of defendant's request for expert fees under Code of Civil Procedure section 998, the court held that, although in the future the court would consider defendant's settlement offer to plaintiffs valid under section 998, trial court's decision is affirmed.     

Bomersheim v. Los Angeles Gay & Lesbian Ctr., No. B208730, concerned plaintiffs' negligence suit claiming that defendant accepted a duty to provide medical care consistent with the applicable standard of care and breached that duty by negligently administering an improper dosage for syphilis.  In reversing the trial court's denial of plaintiff's motion to certify a class, the court held that the trial court's order is based on improper criteria and is not supported by substantial evidence, and class treatment would be a superior method of resolving the claims. 

In re Elec. Refund Cases, No. B206881, concerned plaintiffs' suit against Arizona Electric Power Cooperative, Inc. (Arizona) to recover for the alleged unjust and unreasonable rates the plaintiffs had been charged during the California's energy crisis of May 2000 to June 2001.  In reversing the judgment of the trial court in favor of the defendant, the court held that any failure of the plaintiffs to challenge Arizona's jurisdictional status did not implicate the exhaustion of administrative remedies doctrine, and as such, it was an error to sustain the demurrer on this ground. 

Beutz v. County of Riverside, No. E046318, concerned a residential property owner's suit against a county to void a landscape assessment on the ground that it violated article XIII D of the California Constitution.  In reversing the judgment in favor of the county, the court held that, although the county properly based the assessment on the larger public improvement project of which the landscaping costs were a part, namely, a master plan to acquire and develop the parks and parks facilities, rather than on the landscape portion of the plan, the county failed to meet its constitutional burden of demonstrating that the assessment was proportional to, and did not exceed, the value of the special benefits that the use and enjoyment of the parks would confer on assessed parcels.  

Scott v. Thompson, No. G041860, concerned a plaintiff's claims for wrongful death, negligence, and dangerous condition of public property arising from a traffic accident in which her half-brother was killed by an intoxicated driver.  In affirming the trial court's judgment dismissing plaintiff's claims and grant of the half-brother's presumed father's motion for summary adjudication, the court held that the plaintiff's lack of standing to challenge the presumed father's paternity under the marital presumption eviscerates her claim.  

Lastly, Haight Ashbury Free Clinics, Inc. v. Happening House Ventures, No. A125264, the First District dealt with a free medical clinic's suit for breach of fiduciary duty and other claims against its founder and a limited partnership, formed to assist the clinic by acquiring real estate.  In vacating the trial court's denial of defendant's special motion to strike, the court held that the acts that are protected  under the SLAPP statute are not "merely incidental" to a cause of action simply because they represent a relatively small number of many alleged wrongful acts.   

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Ladd v. Warner Bros. Entm't, Inc., No. B204015, concerned a plaintiffs' suit against Warner Bros. Entertainment Inc. (Warner), claiming that Warner's practice of allocating the same share of the licensing fee to every movie in a package regardless of its value to the licensee deprived plaintiff of a fair allocation of the licensing fees to which plaintiff was entitled as a profit participant. In affirming the judgment of the trial court, the court held that the record supports the jury's determination that Warner's straight-lining method of allocating licensing fees to profit participants breached the implied covenant of good faith and fair dealing.  Furthermore, the court held that Warner failed to meet its burden at trial to show what portion, if any, of plaintiff's damages may have been barred by the 1996 settlement agreement or by the August 1, 1999 accrual of the four-year statute of limitations, and as such, entitling plaintiff to recover all of his proved damages. 

In People v. Casas, No. E048184, the Fourth District faced a challenge to a conviction of defendant for embezzlement, for using a trade-in vehicle to follow a customer home to collect the down payment and driving 400 miles for a drug purchase, using part of the customer's down payment to pay for the drugs.  In affirming the conviction, the court held that even if the defendant had intended to eventually return both the trade-in vehicle and the $400 down payment, his appropriation of both, for his own personal use, was significant in duration and incompatible with the owner's enjoyment or use of the property.   

612 S. LLC, v. Laconic Ltd P'ship, No. D056646, concerned a bondholder's suit seeking a judgment ordering the foreclosure and sale of property subject to a water district bond issued under the provisions of the Improvement Act of 1911 and the Municipal Improvement Act of 1913.  The court affirmed the part of the judgment where the trial court properly rejected the property owner's claim that it was a bona fide purchaser because the record reveals that it had constructive notice of the Bond and assessment lien.  However, trial court's judgment holding the property owner personally liable for any deficiency after the foreclosure sale of the property is reversed, as well as the award of attorney fees and costs as the trial court abused its discretion in deciding attorney fees and costs without consideration of all the evidence.  

S.M. v. E.P., No. D055230, concerned a plaintiff's paternity and custody suit, where the court held that the plaintiff's concession to the Iowa court's exercising jurisdiction over his paternity and custody dispute with the defendant renders moot his appeal from the trial court's minute order deferring jurisdiction over the custody dispute to an Iowa court.  However, the trial court's restraining order is reversed because the court abused its discretion in issuing the restraining order against plaintiff because in issuing the order, the court misapplied the statutory requirements and misapprehended the legal effect of the order. 

In People v. Ramirez, No. B213097, the Second District faced a challenge to a conviction of defendant for shooting at an occupied automobile, which killed the victim.  In affirming in part the judgment of the trial court, the court held that there was substantial evidence to support defendant's conviction for willfully and maliciously shooting a firearm at an occupied automobile.  However, the court held that the section 12022.55 enhancement must be reversed as the uncontradicted evidence demonstrates the victim was inside the car at the time of the shooting.  

Los Angeles County Fire Dep't v. Workers' Comp. Appeals Bd., No. B214649, concerned a challenge to the WCAB's denial of a county's petition for reconsideration in its claim that the battalion chief for the county fire department was not entitled to any maintenance allowance from September 8, 2005, to September 26, 2006 for his permanent disability.  In affirming in part the WCAB's denial, the court held that the battalion chief's right to pending maintenance allowance ended with repeal of former section 139.5 except for that part of the maintenance allowance that was not included in the county's petition for reconsideration and, therefore, became final before the repeal of former section 139.5.   

In People v. Henry, No. A125270, the First District faced a challenge to a conviction of defendant for being a felon in possession of a firearm, following a no contest plea.  In affirming the conviction, the court held that defendant's motion to suppress was properly denied as the evidence seized from his car during the warrantless search incident to his arrest was admissible, due to the application of the good faith exception to the exclusionary rule.   

Chino Commercial Bank, NA v. Peters, No. E049170, concerned a breach of contract and fraud suit brought by a bank to recover overdraft fees and seeking a right to attach property of defendant, arising from a Nigerian-style email scam.  In affirming the judgment of the trial court in favor of the bank, the court held that under the California Uniform Commercial Code, defendant had the burden of proving that the bank did act negligently, and he failed to do so.   

Ctr. for Biological Diversity v. County of San Bernardino, No. D056652, concerned a suit against the County of San Bernardino for its approval of an open-air human waste composting facility under the CEQA.  In affirming the judgment, the court held that the trial court was correct in determining that substantial evidence does not support the FEIR's position that an enclosed facility alternative is infeasible and unworthy of more in-depth consideration.  Furthermore, the court correctly determined the FEIR is inadequate on the additional ground that it does not include a WSA as required by section 10910. 

People v. Weddles, No. C057666, concerned a conviction of defendant for first-degree residential burglary and related crimes.  In affirming the conviction, the court held that sufficient evidence supports defendant's convictions for the robbery of victim, who was forced at gunpoint to turn over to the robbers some $1,500 that belonged to the victim's brother.   

Barragan v. County of Los Angeles, No. B217398, concerned a plaintiff's suit against the County of Los Angeles under the Tort Claims Act, claiming that the dangerous condition of the road caused the accident, rendering her quadriplegic.  In reversing the trial court's denial of plaintiff's relief from the TCA requirements, the court held that the rule mandating an injured party to attempt to obtain counsel within six months in order to establish excusable neglect is not absolute, and may instead, be overcome by evidence of disability.   

Glendale Redevelopment Agency v. County of Los Angeles, No. B212718, concerned a petition for writ of mandate, by community redevelopment agencies, seeking an order that the county accept their revised Statement of Indebtedness (SOI) and pay additional sums for the year in question.  In reversing the trial court's denial of the petition, the court held that nothing in section 33675 prohibits a redevelopment agency from correcting errors in an SOI by filing a revised document.   

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In re Amber M., No. D055539, concerned an appeal from the trial court's denial of petitioner's request for a stay of dependency proceedings involving his two children under section 522(b) of the Servicemembers Civil Relief Act.  The court of appeals reversed, holding that 1) liberally construing petitioner's application for a stay, it met the requirements of section 522(b) or at minimum substantially complied with the requirements of section 522(b); and 2) assuming it did not meet the requirements of section 522(b), the court abused its discretion in denying a stay.

In People v. Wynn, No. D056808, the court of appeals modified defendant's burglary and assault sentence, holding that 1) the trial court should have stayed the section 12022, subdivision (b)(1) sentence enhancement for use of a deadly or dangerous weapon in connection with the burglary count because it was based on the same indivisible course of conduct that gave rise to the assault with a deadly weapon counts; and 2) the abstract of judgment must be amended to reflect that the trial court struck two of the petty theft convictions.

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Challenge to Wiretaps Rejected in Gang-related Murder Conspiracy Case

In Other Cases, A Plea is Vacated, and License Revocation Upheld

In Arthur v. Dep't of Motor Vehicles, No. D055494, the Fourth District faced a challenge to a trial court's denial of a petition for a writ of mandate to set aside the Department of Motor Vehicles' suspension of petitioner's driver's license for driving with a blood alcohol content of .08 percent or greater. In affirming the denial, the court held that substantial evidence supports the judgment as petitioner did not satisfy his burden of overcoming the Evidence Code section 664's presumption that the sobriety checkpoint was in compliance with the Ingersoll factors.

In People v. Woosley, No. C061440, the Third District faced People's challenge to the trial court's plea bargaining in defendant's conviction for first degree burglary, and for committing second degree burglary and petty theft while released on bail. In vacating the defendant's plea, the court held that the trial court's promise, over the prosecutor's objection to dismiss the enhancement and impose an agreed-upon sentence was an unlawful judicial plea bargain.

People v. Roberts, No. D053377 dealt with a conviction for conspiracy to commit murder committed for the benefit of, at the direction of, or in association with a criminal street gang. In affirming the conviction, the court held that the wiretaps were obtained legally and minimized in accordance with the relevant statutes. Furthermore, although the court concluded that the trial court erred when it did not require the state to provide timely reports to the court under section 6 29.60 and to file an application to use non-targeted intercepted communications as soon as practicable as required by section 629.82(a)(1), this error was not reversible error. Lastly, the court affirmed the trial court's denial of motion to suppress evidence from the vehicle stop, the court's admission of gang evidence, and denial of a motion for severance after the co-defendant decided to testify.

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In Boyajian v. Ordoubadi, No. G041311, the Fourth District faced a challenge to the trial court's judgment precluding the assertion of a pre-petition claim for equitable indemnity against the debtor in concluding that plaintiff's claim for equitable indemnity was discharged in a bankruptcy proceeding in 1994 in plaintiff's suit for indemnity against the defendant.  In affirming the decision, the court held that the bankruptcy law allows for discharges of contingent claims, including claims against the debtor for indemnity before the time the indemnity claim against the debtor can be precisely measured.  

Citizens for Responsible Equitable Envt'l Dev. v. City of San Diego, No. D055929, concerned a petition for writ of mandate and complaint for injunctive relief against the City of San Diego, claiming that that the city failed to provide proper notice of a public hearing at which the city approved two resolutions related to project for the redevelopment and expansion of a regional shopping center.  In affirming the trial court's denial of the petition and the request for injunctive relief, the court held that the city was not required to provide the forms of notice that must be provided for vacations that are effectuated under the PSHSEVL, because the city properly effectuated the vacations pursuant to the subdivision map.  Furthermore, the city did not violate the Municipal Code in providing notice of the city's proposed amendment of its land use plans.     

In Whitmire v. Ingersoll-Rand Co., B210211, the Second District faced a challenge to the trial court's grant of summary judgment in favor of the defendants in plaintiffs' suit for negligence and strict liability alleging exposure to asbestos containing products manufactured by defendants caused plaintiff to contract mesothelioma.  In affirming the trial court's grant of summary judgment, the court held that the plaintiffs failed to establish a triable issue of fact regarding whether the husband was exposed to asbestos for which defendant was liable.    

Lockton v. O'Rourke, No. B208440, concerned a challenge to the trial court's dismissal following demurrers by defendants  in plaintiff's legal malpractice suit.  In affirming in part and reversing in part the judgment of the trial court, the court held that the trial court properly sustained the demurrer on the ground that defendants did not continue to represent plaintiff on his claims against the defendants in the underlying case for a sufficient time to toll the statute of limitations.  However, the court reversed the trial court's denial of two defendans' request for award of attorney fees.   

In People v. Nguyen, No. G040600, the Fourth District faced a challenge to a conviction of defendant for forcible rape, committing lewd act on a child under age 14, and other crimes. First, the court held that the trial court did not abuse its discretion in permitting a San Bernardino offense to be joined with an Orange County offense for trial in Orange County as section 784.7(a) permits the joinder of any combination of its listed sex crimes, as long as the court holds a section 954 joinder hearing at which the court may exercise discretion to deny joinder "in the interest of justice and for good cause shown."  Next, the court held that, although the trial court erroneously admitted evidence of uncharged non-sexual conduct under the purported authority of Evidence Code section 1108, the error was harmless.  Lastly, the court rejected defendant's claims of ineffective assistance of counsel and cumulative error. 

State Comp. Ins. Fund v. Superior Court, No. A125834, concerned a plaintiff's petition for a peremptory writ of mandate seeking to set aside superior court's grant of summary judgment in favor of defendant, in plaintiff's suit to collect unpaid premiums it claimed were owed for workers' compensation insurance policies issued to defendant.  In granting the petition, the court held that the plaintiff's filing of an amended complaint rendered defendant's motion for summary judgment moot, and the FAC raised new issues of fact regarding when the statute of limitations began to run on the plaintiff's fraud claim. 

Martinez v. Combs, No.S121552, concerned an action to recover unpaid minimum wages under Labor Code section 1194 and other theories, brought by seasonal agricultural workers against produce merchants and a farm owner.  In affirming the trial court's grant of summary judgment in favor of defendants, the court held that in actions under section 1194 to recover unpaid minimum wages, the IWC's wage orders do generally define the employment relationship, and thus who may be liable.  Here, an examination of the wage orders' language, history and place in the context of California wage law makes clear that those orders do not incorporate the federal definition of employment.     

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In In re the Marriage of Schopfer, No. C060549, the Third District faced a challenge to the trial court's denial of the father's motion to reduce to zero his child support obligation of his daughter, whom he shared legal and physical custody of with her stepfather since the death of his ex-wife.  In affirming the denial, the court held that the father was properly ordered to compensate the stepfather for his daughter's support as a custodial parent and that the trial court did not err in requiring father to pay child support past the daughter's 18th birthday.  Furthermore, under the circumstnaces of the case, the court held that the trial court did not err in requiring the father to pay support. 

Camp v. State of California, No. B209176, concerned a plaintiff's suit against the State of California and a police officer who was present at the scene of the automobile accident involving plaintiff and her friends, under the theory that her paraplegia was caused not by her friend's driving under the influence of alcohol, but by the officer's negligence.  In reversing the jury verdict awarding $2,690,608 in damages to plaintiff and ordering judgment in favor of the defendants, the court held that because there was no misfeasance by the officer, he owed no duty to plaintiff. 

In People v. Cropsey, No. C061053, the Third District faced a challenge to the trial court's order "reimposing" a $200 restitution fine and a $200 probation revocation restitution fine and an order adding a $200 restitution fine suspended unless parole is revoked, for defendant's violations of probation following her conviction for assault with a deadly weapon and driving with 0.08 percent or more of alcohol.  Here, because defendant has not identified legal error, judgment of the trial court is affirmed.  However, the trial court's words, "reimpose the restitution amounts," are inconsistent with the principles upon which Chamber was decided, and here, the survival of the $200 restitution fine and $200 probation revocation fine made it unnecessary to "reimpose" those still extant "restitution amounts." 

In Amerigas Propane, LP v. Landstar Ranger, Inc., No. E048536, the Fourth District faced a challenge to the trial court's grant of Landstar's motion for summary judgment on Amerigas's FACC, arising from an underlying action brought by plaintiffs for personal injury and loss of consortium damages against Amerigas and other defendants for suffering serious injuries while offloading gas tanks.  In reversing the trial court's summary judgment, the court held that a triable issue existed as to whether the plaintiff was Landstar's employee under state law.  Furthermore,  Amerigas had a viable claim based on the Federal Motor Carrier Safety Regulations (FMCSR), which Landstar did not negate. 

Cypress Sec., LLC v. City and County of San Francisco, No. A122534, concerned a plaintiff's petition for a writ of mandate seeking to set aside a public contract awarded to a competitor-provider of security services for the San Francisco Department of Human Services (DHS).  In affirming the trial court denial of the petition, the court held that the plaintiff failed to demonstrate abuse of discretion or other error. 

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In People v. Vang, No. C059700, the Third District faced a challenge to a conviction for firearm and drug related offenses, claiming that the his sentence for felon in possession of a firearm should have been stayed pursuant to Penal Code section 654 because it was inseparable from possession of methamphetamine while armed.  In affirming the conviction, the court held that, because the offenses involve distinct dangers, separate acts, and separate intents, substantial evidence supports the court's conclusion that a felon in possession of a firearm was a separate offense from possession of methamphetamine while armed.      

In Laclette v. Galindo, No.B213615, the Second District faced a challenge to the trial court's entry of summary judgment against the plaintiff in her legal malpractice action against her former attorney and the attorney's law firm. 

As stated in the decision: "Irrespective of the lack of contact between Galindo and Laclette over a two-year period, the evidence established the following: the trial court retained jurisdiction over the underlying settlement; the settlement obligated Laclette to pay the sum of $175,000 at the rate of $3,500 per month; Laclette was paying the installments as agreed; and Galindo remained Laclette's counsel of record."

Thus, in reversing trial court's grant of summary judgment in favor of the defendants, the court held that a triable issue of material fact exists as to whether defendant attorney continued to represent plaintiff during the pendency of a settlement agreement in the underlying action so as to toll the limitations period in the malpractice action.     

Californians for Pesticide Reform v. California Dep't of Pesticide Regulation, No. C052373, concerned a plaintiff's petition for a writ of mandate and complaint for declaratory relief challenging the defendant's risk assessment process involving pesticides.  In affirming the trial court's denial of the petition, the court held that the factors enumerated in the Toxic Air Contaminants Act are not so different from the department's new risk assessment policy as to be a violation of the statute.  Furthermore, plaintiff's claims that the defendant has failed to implement the Act and that the process is an underground regulation are rejected.  Lastly, the trial court did not err in denying plaintiff's request for judicial notice of scientific studies.     

Tarlesson v. Broadway Foreclosure Inv., LLC, No. A125445, concerned a challenge to the trial court's order permitting the sale subject to a $150,000 homestead exemption in debtor's favor in a judgment creditor's action seeking to satisfy a judgment through the sale of judgment debtor's home.  In affirming the decision, the court held that the trial court correctly determined that the debtor was eligible to claim the exemption because the home was her principal residence prior to attachment of the creditor's judgment lien and continuously thereafter.     

Guinn v. County of San Bernardino, No. E047532, concerned a plaintiffs' petition for writ of mandate and complaint for declaratory relief in an action against a county claiming that, as a sworn peace officer employed by the county's probation department and a public safety officer, plaintiff was entitled to an administrative appeal to contest his demotion from a supervisory position during a "promotional" probationary period.  The court affirmed in part the trial court's judgment denying the petition for writ of mandate as Gov. Code section 3304(b) does not mandate an administrative hearing under the circumstances of this case. However, the trial court's judgment denying the request for declaratory relief is reversed as an actual controversy existed as to the rights and obligations of the parties pursuant to section 3304(b). 

In People v. Ceja, No. S157932, the California Supreme Court dealt with an appeal by the government, arising after defendant was convicted by a jury for both petty theft and receiving the property he had stolen, court of appeals' reversal of the petty theft conviction on the ground that the "greater" felony offense of receiving stolen property took precedence over the "lesser" misdemeanor theft offense.  In reversing the court of appeals' judgment, the court held that the rule against dual convictions (which was in effect long before its codification in 1992) is based on the premise that a theft conviction operates as a bar to a receiving conviction, and the Legislature gave no indication it meant to change this established practice. 

Simpson Strong-Tie Co., Inc. v. Gore, No. S164174, concerned a plaintiff's action for defamation and related claims against an attorney and a law firm, arising from an advertisement placed by the defendants addressing owners of wood decks that they may have a claim against plaintiff and other manufacturers of certain galvanized screws.  In affirming the trial court's dismissal of the entire complaint under the anti-SLAPP statute, the Court rejected the plaintiff's expansive construction of the commercial speech exemption, and thus held that, the complaint was not exempted from the anti-SLAPP statute by section 425.1(c)(1).  The court also establishes that the burden of proof as to the applicability of the "commercial speech" exemption of the anti-SLAPP statute falls on the party seeking the benefit of it. 

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Decisions in Criminal and Workers' Compensation Matters

In Alvarez v. Workers' Comp. Appeals Bd., No. B218847, the Second District faced a challenge to the decision of the Workers' Compensation Appeals Board (WCAB) denying claimant's petition for a new panel qualified medical evaluator under section 4062.3(f), in the claimant's petition for worker's compensation death benefits.  In annulling the decision and remanding the matter, the court held that, as section 4062.3 expressly prohibits ex parte communications with a panel qualified medical evaluator, with the only exception being for communications by the employee or deceased employee's dependent in connection with an examination, and in the event of unauthorized ex parte communication permits the aggrieved party to obtain a new evaluation from another panel qualified medical evaluator.     

People v. Ferrer, No. A124178, concerned a prosecution of defendant for cultivation of marijuana and other related charges, wherein the trial court denied prosecution's motion to continue a hearing on a defense motion to suppress evidence under section 1050.  In reversing the orders granting the motion to suppress and the dismissal,  the court held that the trial court erred in refusing to continue the hearing as sections 1050 and 1050.5 prohibit the dismissal of an action due to the absence of good cause for a continuance or for the prosecutor's failure to provide proper notice of a request for a continuance.  Furthermore, although the trial court did not dismiss this action as an express sanction for a failure to show good cause, dismissal was the reasonably foreseeable result of denial of the motion to continue. 

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Prime Gas, Inc. v. City of Sacramento, No. C062628, concerned a plaintiff's petition for a writ of administrative mandate challenging a city ordinance that requires local tobacco retailers to be licensed by the city.  The court affirmed the trial court's judgment finding no preemption, as a local ordinance that prohibits the sale of tobacco products to minors through the sanction of suspending or revoking the retailer's local license to sell tobacco is not preempted by state law which also prohibits tobacco sales to minors.     

S.M. v. Los Angeles Unified Sch. Dist., No. B209178, concerned a minor's suit against the Los Angeles Unified School District for negligent supervision of a teacher who sexually fondled her.  In affirming the trial court's entry of summary judgment for defendant school district, the court held that the undisputed facts show that plaintiff waited too long to file the required tort claim with the school district. 

Garber v. Superior Court, No. B212766, concerned a defendant's petition for habeas relief, challenging a decision by the appellate division of the superior court that affirmed his conviction for carrying a concealed firearm in a vehicle and carrying a loaded firearm in a public place or on a public street.  The court denied the petition in holding that the trial court did not err by refusing to give "place of residence" jury instructions because at the time defendant committed the offenses, he was not using his mobile home for residential purposes. 

Loranger v. Jones, No. C061517, concerned a contractor's suit against homeowners for breach of contract, foreclosure of mechanic's lien, quantum meruit, and fraud.  In affirming the trial court's judgment awarding damages to the contractor and denial of homeowners' motion for section 7031 sanctions, the court held that the contractor's testimony that he had a policy of workers' compensation coverage in effect for his construction employees during the period of construction of the homeowners' home is sufficient to meet his burden of proof to show his license was not suspended for failing to obtain workers' compensation insurance coverage pursuant to section 7125.2.   

In People v. Ligons, No. B212616, the Second District faced a challenge to a conviction for attempted escape by force or violence.  In reversing the conviction, the court held that the trial court prejudicially erred in instructing the jury that defendant could be convicted of attempted escape by force or violence under Penal Code section 4532 if it found that she attempted to escape from an officer's custody within the confines of the jail, because section 4532 does not apply to breaking away from the custody of an officer within the custodial facility.     

Arguelles-Romero v. Superior Court, No. B219178, concerned plaintiffs' petition for writ of mandate challenging the trial court's decision granting defendant's motion to compel individual arbitration in their attempt to pursue a class action against the assignee of plaintiffs' automobile financing contract.  In granting the petition, the court vacated and remanded the trial court's order as, although the trial court did not err in finding the class action waiver was not unconscionable, it should have also performed a discretionary analysis on whether a class action is a significantly more effective practical means of vindicating the unwaivable statutory rights at issue. 

In MKB Mgmt., Inc. v. Melikian, No. B213479, the court dealt with a plaintiff's suit for breach of contract and quantum meruit, alleging that defendants failed to pay amounts due under a property management agreement and failed to pay for services rendered and money paid by plaintiff at defendants' request.  In reversing the trial court's dismissal following the sustaining of a demurrer to plaintiff's complaint without leave to amend, the court held that the sustaining of the demurrer to the counts for breach of contract based on the absence of a real estate broker's license was error and the trial court must exercise its discretion to determine whether the doctrine of severability applues so as to allow the recovery of compensation for services for which no such license was required.  Furthermore, the sustaining of the demurrer to the common counts of quantum meruit was error and the judgment cannot be affirmed based on the absence of a contractor's license.     

Maldonado v. Superior Court, No. A126236, concerned a defendant's petition for a writ of mandate challenging the denial of seven of his protective orders, relating to court-ordered examinations arising from his notification of his intent to introduce evidence of neurocognitive deficits he purportedly suffers in his prosecution for murder. 

In granting a peremptory writ permitting the examinations to proceed, the court directed the trial court to delay disclosure of those portions of the examination reports containing statements by defendant until he has an opportunity to challenge disclosure of materials potentially still subject to privilege, despite the fact that defendant has placed his mental state in issue. Defendant must be given an opportunity to assert a claim of privilege before disclosure to the prosecution. Defendant's contention that disclosure of the examination results and supporting data must be deferred until defense evidence on his mental state is adduced at trial is rejected.  Lastly, there is no error in the trial court's consideration of prosecution recommendations in the court's appointment of experts to examine defendant.     

Lastly, in Boeken v. Philip Morris USA, Inc., No. S162029, the California Supreme Court dealt with a plaintiff's wrongful death action against cigarette manufacturer Philip Morris arising from the death of her husband from lung cancer.  In affirming the Court of Appeal's affirmance of trial court's order sustaining defendant's demurrer without leave to amend, the court held that the plaintiff's wrongful death action involves the same primary right and breach as her former loss of consortium action, and thus, the doctrine of res judicata bars plaintiff's wrongful death action.     

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Governor's Reversal of Parole Vacated, Plus a Suit Against MBNA

In In re Calderon, No. A125831, the First District dealt with a defendant's petition for habeas relief, challenging the governor's decision reversing the Parole Board's determination finding defendant suitable for parole

As stated in the decision: "Lawrence and Shaputis instruct that, in reviewing parole determinations by the Governor, 'our deferential standard of review requires us to credit the Governor's findings if they are supported by a modicum of evidence.  This does not mean, however, that evidence suggesting a commitment offense was 'especially heinous' or 'particularly egregious' will eternally provide adequate support for a decision that an inmate is unsuitable for parole."

Thus, in granting the petition for habeas relief, the court vacated the governor's order vacated as the governor's rescission of the parole date granted to defendant by the Board is not supported by any evidence.  

Parks v. MBNA Am. Bank, N.A., No. G040798,  concerned a class action lawsuit against MBNA America Bank, N.A., for its purportedly unlawful business practices under Bus. & Prof. Code section 17200, involving preprinted checks sent to its customers without any of the disclosures required by section 1748.9. 

In reversing the trial court's judgment on the pleadings in favor of MBNA finding section 1748.9 preempted by federal law applicable to national banks, the court held that section 1748.9 is not, on its face, preempted.  The court also concluded that section 1748.0 does not preclude national banks from exercising their authority to lend money on personal security under section 24 of title 12 of the United States Code, and without a factual record, a court cannot conclude that section 1748.9 significantly impairs national banks' authorized activities.  

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In  People v. Douangpanya, No. C061501, the Third District faced a challenge to a conviction of defendant for assault with a deadly weapon and sentenced to three years in state prison.  In affirming the conviction, the court held that the trial court did not err by informing the jury that defendant's prior crimes involved moral turpitude and by defining moral turpitude as "a readiness to do evil."  Futhermore, there was no ineffective assistance of counsel. 

In re Giovanni F., D056472, concerned a challenge to the  juvenile court's jurisdictional and dispositional findings in dependency proceedings.  In affirming the juvenile court's decision, the court first held that there was substantial evidence supporting the section 300(a) jurisdictional finding, in concluding that the application of section 300(a) is appropriate when, through exposure to a parent's domestic violence, a child suffers, or is at substantial risk of suffering, serious physical harm inflicted nonaccidentally by the parent.  The court also held that the trial court did not abuse its discretion in granting the maternal grandmother's de facto parent status, and with respect to a Marsden hearing, there was no error and it was not an abuse of discretion to deny continuance.     

In People v. Hopkins, No. H033413, the Sixth District faced a challenge to a conviction of defendant for possession of paraphernalia intended to be used for injecting a controlled substance while incarcerated.  In reversing the trial court's order denying defendant's motion for additional pre-sentence custody credits, the court held that the defendant is entitled to additional presentence credits due to his being held in prison past his parole date. However, the amendment to section 4019 is not retroactive.     

In Ron Burns Constr. Co. Inc. v. Moore, No. E047077, the Fourth District dealt with the trial court's denial of plaintiff's motion for attorney fees and a motion for relief from default.  In reversing the trial court's decision, the court held that plaintiff's counsel's reliance on his adversary's agreement was excusable neglect, as a matter of law, even though plaintiff's counsel was at fault for failing to file a timely written stipulation to extend the time for filing a motion for attorney fees.  Moreover, the motion under section 473 did not have to satisfy the requirements of section 1008, as recent cases have held that if the requirements for relief under section 473 are met, the viability of relief under section 473 cannot be defeated because the requirements for  relief under section 1008 may not also have been met.     

Ridgewater Assoc. LLC v. Dublin San Ramon Serv. Dist., No. A124661, concerned a plaintiff's inverse condemnation and nuisance suit against defendant-district, claiming that water seeps onto its property from a neighboring sewage treatment facility operated by the district.  In affirming the trial court's grant of summary judgment in favor of defendant, the court held that plaintiff cannot prove damages on its inverse condemnation claim as it knowingly bought a property that was subject to periodic water intrusion and the purchase price reflected the property's condition.  

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Decisions In Criminal Matters, Plus Extension of Commitment

In People v. Contreras, No. G042077, the Fourth District faced a challenge to the trial court's determination that defendant suffered from a severe mental disorder within the meaning of Penal Code section 2970 in its grant of state's petition seeking to extend defendant's commitment one additional year as a mentally disordered offender. 

In rejecting defendant's claim that the trial court erred when it instructed the jury with CALCRIM No. 224, the general instruction on circumstantial evidence, rather than CALCRIM No. 225, the instruction on circumstantial evidence to be given when only a defendant's intent or mental state is at issue,  the court affirmed the jury's finding that defendant remained a mentally disordered offender as, the trial court appropriately instructed the jury with CALCRIM No. 224 because a jury is not required to determine a defendant's "mental state" in order to determine whether a defendant suffered from a "severe mental disorder."   

In People v. Lam, No. B212994, the Second District faced a conviction of defendant for second degree murder of his wife, claiming that he killed her in shame for stealing money from her to cover his gambling debt.  In affirming the conviction, the court held that the single instrumentality exception under Joseph G. did not entitle defendant to an instruction on aiding and abetting suicide, and defendant's claim that the court did not offer a similar voluntary intoxication instruction for implied malice is rejected.       

In People v. Wyatt, No. S161545, the California Supreme Court faced state's challenge to the Court of Appeal's reversal of the section 273ab conviction, finding the evidence insufficient to prove the requisite mens rea for the assault element of the offense in a prosecution of defendant for involuntary manslaughter for the death of his 14-month-old son and assault of a child causing death. 

The judgment of the Court of Appeal is reversed because the Court of Appeal misapplied the mens rea standard for assault as stated in People v. Williams, 26 Cal.4th 779 (2001), which held that a defendant may commit an assault without realizing he was harming the victim, but the prosecution must prove the defendant was aware of facts that would lead a reasonable person to realize that a battery would directly, naturally, and probably result from the defendant's conduct.  Here, substantial evidence established that defendant knew he was striking his young son with his fist, forearm, knee, and elbow, and that he used an amount of force a reasonable person would realize was likely to result in great bodily injury.    

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In Gutierrez v. G&M Oil Co., Inc., No. G042041, the Fourth District faced a challenge to the trial court's decision setting aside a $4 million default judgment against a gas station chain caused by the negligence of its in-house attorney, arising from a class action employment lawsuit. The court first resolved the issue of whether in-house attorneys come within the mandatory relief from default or dismissal provision of Code of Civil Procedure section 473, in answering in the affirmative.  Next, the court held that under the facts of the case, it does not make any difference that the in-house attorney was also a corporate officer of the company.  Lastly, the court held that the mandatory relief provision of section 473 is constitutional.   

In re E.B., No. B215774, concerned a challenge to the juvenile court's jurisdiction findings and disposition orders that resulted in an eleven-year-old boy and an eight-year-old girl being detained with their mother, as well as the court order monitoring the visits between the father and the son and no contact between father and daughter.  Because the the mother and father fail to show any error, insufficiency of the evidence, or abuse of discretion, juvenile court's decision is affirmed.     

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In Rossa v. D.L. Falk Constr., Inc., No.A125567, the First District faced a challenge to the trial court's denial of defendant's motion seeking recovery of interest paid on sums borrowed to fund a letter of credit used to secure the undertaking arising from a breach of contract suit.  However, as Rule 8.278(d)(1)(F) of the California Rules of Court, in its current form, does not include interest as part of the cost to obtain a letter of credit, and thus trial court's denial is affirmed.

People v. Superior Court, No. B220991, concerned a People's petition for writ of mandate, claiming that the trial court exceeded its jurisdiction under Penal Code section 1054.5(c) because it was required to exhaust less drastic sanction first, for discovery violations in a murder case.  In granting the petition, the court held that the trial court's orders were issued in excess of jurisdiction, and as such, trial court's sanctions order precluding the People from presenting dog scent and gunshot evidence and the witnesses' testimony at issue are vacated.   

 Broney v. California Comm'n on Teacher Credentialing, No. C060831, concerned a plaintiff-teacher's petition for extraordinary relief from the Commission's decision, finding her unfit to teach and suspending her teaching credentials for 60 days, based on her three drunk driving convictions. In affirming the trial court's denial of the petition, the court held that, although the trial court applied the wrong test, it was not prejudicial as it is not reasonably probable that the court would have reached a different result had it applied the Morrison test to the issue of fitness to teach instead of a per se test.   

In People v. Traugott, No. E046884, the Fourth District faced a challenge to a conviction of defendant for possession of methamphetamine for sale and two related misdemeanor drug crimes, claiming that her constitutional right to a unanimous jury was violated by a verdict of only 11 jurors present.   The court reversed the conviction as defendant's state constitutional right to a unanimous 12-person verdict was violated and valid verdicts were not returned.   

In People v. Pelayo, No. A123042, the First District faced a challenge to a conviction of defendant for possession of methamphetamine for sale, possession of ecstasy for sale, and evading a police officer.  With respect to defendant's sentence, the matter is remanded to the trial court to modify its sentencing order as the 2009 amendments to Penal Code section 4019 which went into effect on January 25, 2010, which increased the good conduct credits available to defendant for presentence custody in a local detention facility, are retroactive and defendant is entitled to recalculation of his pre-sentence custody credits.   

In People v. Branch, No. C060225, trial court's conviction of defendant of attempted pimping of a minor under the age of 16 and other crimes is affirmed as, a good faith belief the minor is 18 is not a defense to pimping or pandering a minor.   

Yassin v. Solis, No. B215201, concerned a plaintiff's suit against homeowners for money he claimed was owed to him for improvement work on defendants' home, and defendants' cross-complaint for breach of contract in connection with the work performed.  The trial court's judgment awarding $50,000 to the defendants and nothing for the plaintiff is affirmed for the most part where, although a party did not have to plead that it is seeking attorney fees in order to recover those fees, the last contractual payment due plaintiff was not a retention under section 3260, and therefore the defendants, as the prevailing parties in their claim to recover that amount, were not entitled to attorney fees under section 3260(g).  Furthermore, section 3260.1 does not authorize the award of attorney fees.  

In re Jennifer O., No. B216672, No. concerned a juvenile court's order terminating a father's reunification services of his daughter and two sons, as a result of the alleged physical and sexual abuse of the daughter.  The termination order is affirmed as the Hague Service Convention does not apply to service of notice of review hearings.   

In Estate of Lewis, No. G042100, the Fourth District faced a challenge to a decision of the court appointing the pubic administrator to administer the estate of the deceased father of petitioner's two children, who are decedent's sole heirs. In the absence of a finding that petitioner was not competent to act as personal representative, the Probate Code section 8464 did not authorize the court to make such an appointment, and thus the decision is reversed.  

People v. Otubuah, No. E047271, concerned a conviction of defendant for multiple counts of unlawful use of personal identifying information, burglary, grand theft, multiple counts of forgery for possessing completed checks with the intent to defraud, and other crimes, arising from his involvement in an identity theft ring.  The conviction is reversed in part as to the 24 of the 27 counts of forgery for possessing completed checks with intent to defraud, as the checks were from three issuers and defendant has thus violated the financial autonomy of three victims and committed forgery once for each victim.  However, section 654 does not mandate staying any of the three convictions for forgery.  Lastly, since possession of the checks violated the autonomy of the three issuers, as the means toward fraud, the three convictions are appropriate.   

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Decisions re Presentence Credit Issues & Administrative Matter

In County of San Diego v. Alcoholic Beverage Control Appeals Bd., No.D055745, the Fourth District dealt with a county's petition for a writ of review, challenging the assignment of an ALJ by the Department of Alcoholic Beverage Control to conduct an administrative hearing on their protests against a liquor license application by a resort and casino establishment. 

The concluded that the Department did not proceed in a manner contrary to law or in excess of its jurisdiction when it directed the ALJ, who is not a judge with the Office of Administrative Hearings, to hear and decide the protests at issue because Bus. & Prof. Code section 24210 authorized the Department to employ its own administrative law judges for the purpose of conducting all hearings under the Alcoholic Beverage Control Act. Furthermore, the court held that the ALJ properly denied plaintiff's peremptory challenge and was not required to unilaterally disqualify himself from hearing the matter. 

People v. Norton, No. A123659, concerned whether defendant was entitled to additional presentence conduct credit under pursuant to an amendment in a prosecution for felony offense of domestic violence.   The court concluded that defendant is entitled to additional presentence conduct credit under the 2009 amendments to Penal Code section 4019 as such amendments must be given retroactive effect.     

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Franklin Mint Co. v. Manatt, Phelps & Phelps, LLP, No.B190482, involved a challenge to the trial court's grant of a law firm's motion for directed verdict in an action for malicious prosecution against the law firm and an attorney, who had represented the executors of the estate of Diana, Princess of Wales and the trustees of The Diana, Princess of Wales Memorial Fund, arising from the law firm's suit against the defendant-company for using Princess Diana's name and image in connection with merchandise it advertised and sold. 

However, in reversing the trial court's judgment, the court held that there was no probable cause to prosecute the false advertising claim as no reasonable attorney could find tenable the false advertising claim as it was alleged and litigated in the underlying action.  In addition, there was no probable cause to prosecute the trademark dilution claim because no reasonable attorney could conclude that the claim could satisfy two fundamental, long-standing principles of trademark law.   

Wald v. Truspeed Motorcars, LLC, No. G042207, concerned a plaintiff's suit against a used car dealer for breach of contract, claiming that defendant refused to compensate him his finder's fee. In deciding in favor of the defendant, the  trial court sustained defendant's demurrer, on the ground that section 11711.3 of the Vehicle Code precludes any recovery by plaintiff of monies owed under the oral contract because plaintiff, was himself a used car dealer without a dealer's license.  However, because plaintiff is a salesperson for purposes of section 11711.3 (as opposed to a used car dealer) and the compensation is enforceable in equity, and as such, trial court's judgment is reversed.  Furthermore, defendant's claim that plaintiff's fraud claim should be dismissed for failure to plead it with sufficient particularity is rejected. 

Lastly, in Runyon v. Bd. of Trs. of the California State Univ., No.S168950, the California Supreme Court dealt with a plaintiff's suit against the California State University, claiming that he was removed from his position as departmental chair and subjected to other adverse actions in retaliation for having reported improper conduct by the dean of the College of Business Administration.

In reversing the summary judgment in favor of the defendants, the Court held that when an employee of the CSU claims he or she suffered retaliation for making a protected disclosure under California's Whistleblower Protection Act, and after an internal investigation, CSU rejects employee's claim of retaliation, the employee need not obtain a writ of mandate overturning CSU's decision before he or she may bring an action for damages under section 8547.12.  CSU employees, like employees of state boards and agencies, need not exhaust the judicial remedy of a mandate petition before pursuing the judicial remedy for which the Act expressly provides, an action for damages. 

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Decisions in Insurance and Murder Appeals

In Legacy Vulcan Corp. v. Superior Court, No. B215713, the Second District dealt with a petition for a writ of mandate, challenging a pretrial order that decided three stipulated legal questions concerning the scope of the duty to defend under a liability insurance policy issued by the insurer.  In granting the petition, the court first held that the umbrella coverage was primary coverage and the existence of a duty to defend with respect to that coverage did not depend on the exhaustion of any underlying coverage.  Next, the court held that a "retained limit" or "self-insured retention" provision in a policy providing coverage relieves the insurer of the duty to provide immediate, "first dollar" defense only if the policy expressly so provide, and here, the insured need not have incurred a liability in excess of the "retained limit" described in the policy before the insurer's duty ti defend could arise. 

In People v. Davis, No.A125490, the First District faced a challenge a trial court's grant of defendant's motion to set aside the special venue allegation - justifying a single trial in a county - in a prosecution for two counts of murder in connection with a 2004 and 2006 deaths of her infant sons. 

In reversing the decision, the court rejected the trial court's conclusion that Alcala v. Superior Court (2008) 43 Cal. 4th 1205 held that Penal Code section 790(b) is intended to allow a single trial only of serial killers in holding that the trial court abused its discretion in its misapprehension of the scope of section 790(b) as evidence was more than ample to support the grand jury's implicit finding of a common element of a substantial importance and that is sufficient to defeat a motion under section 995. 

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