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

June 2010 Archives

Blankenship v. Allstate Ins. Co., C059423, concerned a challenge to the trial court's denial of a minor-plaintiff's petition to compel Uninsured Motorist Arbitration, for injuries he sustained when he was struck by an uninsured driver while riding his bicycle.  In affirming the decision, the court held that, although an insured may have made a claim with his uninsured motorist (UM) liability insurance carrier for damages suffered in an auto accident with an uninsured motorist, he may not subsequently file a legal actions against his UM insurer unless, within two years after the date of the accident, he first files an action against the uninsured motorist, demands arbitration with his UM insurer, or reaches an agreement with his UM insurer.  And here, plaintiff failed to comply with the requirements, and his minority does not excuse noncompliance with the limitations period of section 11580.2(i).

City of San Diego v. San Diego City Employees' Ret. Sys., D054688, concerned a city's petition to set aside plaintiff's decision to charge the city for underfunding of pension service credits during a particular period.  In affirming the trial court's grant of the petition in setting aside plaintiff's decision, the court held that the plaintiff's action was contrary to law and exceeded its authority to administer the pension system's assets.

City of Santee v. County of San Diego, D055310, concerned a challenge to the trial court's order sustaining defendant-county's demurrer in a city's petition for a writ of mandate against the county, claiming that the sitting agreement between the county and the State Department of Corrections constituted a project which required environmental review.  In affirming the denial, the court held that the sitting agreement was not a commitment to either a reentry facility or any jail facility, and the agreement did not as a practical matter preclude any alternative, mitigation measures, or the alternative of not going forward with any facility.  Rather, the record shows all the facilities which were the subject of the sitting agreement might be modified or not implemented at all, depending on a number of factors, including environmental review.

In re G.G., B215471, concerned a challenge to a juvenile court's dispositional order, inter alia, placing the father's twin daughters in foster care, individual counseling for the twins and the father, and the father's individual counseling to address his use of sexist and racist language.  In affirming, the court held that the juvenile court did not abuse its discretion in requiring the father's counseling to address his repeated angry use of racial, ethnic and gender epithets.

In re Rodden, C064437, concerned a defendant's petition for habeas relief seeking to vacate her guilty plea to failure to register as a sex offender in California within five days of coming into, or changing residence within, a county.  In granting the writ of habeas relief, the court held that the least adjudicated elements of the offense for which defendant was convicted in Kentucky do not meet all of the requirements for any registrable offense in California, and thus, defendant did not unlawfully fail to register as a sex offender and her guilty plea must be vacated.

In re Tobacco Cases I, D055350, concerned People's action against defendant, R.J. Reynolds Tobacco Company seeking to enforce a consent decree entered on a master settlement agreement (MSA).  In affirming the trial court's order in favor of the plaintiff, the court held agreed with the trial court that the images the defendant used in an advertising campaign referred to as "Camel Farms" were cartoons within the meaning of the MSA.  The court also held that the defendant's claim that the trial court erred on determining that it has authority to assess sanctions against it for violating MSA and the consent decree by using cartoons in its advertising need not be addressed as the trial court did not actually assess any sanctions against defendant.

People v. Beaver, C060490, concerned a challenge to a conviction of defendant for grand theft, arising from an incident in which he and others staged an accident at a ski resort where they worked in order to obtain medical treatment for a preexisting injury to defendant's knee and to collect a cash settlement.  In reversing the conviction, the court held that the trial court's failure to instruct on the elements of theft by false pretenses was not harmless, and the jury was not properly instructed on all the elements of the enhancement.  In so concluding, the court rejected defendant's remaining contentions.

Yoo v. Shewry, B213759, concerned a pharmacist's petition for a writ of mandate,  challenging the practice of the California Department of Health Care Services of refusing to pay interest on Medi-Cal payments withheld, in many cases for years, from providers of Medi-Cal services even though it knows or should know such payments are properly owing the providers.  In reversing the trial court's order granting a peremptory writ of mandate, the court held that Welfare & Institutions Code section 14107.11 differentiates between the collection of Medi-Cal overpayments and withheld Medi-Cal payments and neither requires nor permits the payment of interest on withheld Medi-Cal payments.  Furthermore, Civil Code section 3287 is inapplicable in this case.

Zamora v. Lehman, B215764, concerned a trustee's action against former officers of a defunct company, alleging breach of fiduciary duty.  First, the court held that a waiver of right to arbitrate does not require the relinquishment of a known right under the Federal  Arbitration Act or the California Arbitration Act.  Next, the court went onto hold that, as provided by the rules adopted in the arbitration provision, the parties were not entitled to any discovery in an arbitration proceeding.  Thus, the court reversed the trial court's order compelling arbitration and the judgment dismissing the action with respect to the two defendants who had engaged in discovery as these defendants waived arbitration because they acted inconsistently with the right to arbitrate.  The court affirmed the trial court's ruling with respect to the defendant who sought to settle the case, as he did not act inconsistently with the right to arbitrate.

Alameda County Joint Apprenticeship & Training Comm. v. Roadway Elec. Works Inc., No. A125494, concerned a challenge to the trial court's order sustaining the demurrer to the complaint in plaintiffs' suit for unfair and unlawful competition under Business and Professions Code section 17200 and interference with prospective economic advantage, claiming that defendants are using unauthorized workers in the rebuilding of the San Francisco-Oakland Bay Bridge to perform certain tasks that must be performed by certified electricians.  In reversing the judgment, the court held that because plaintiffs' claims brought under section 3099 arise independently of the prevailing wage law and do not challenge the authority of the Director of the California Department of Industrial Relations to determine the scope of work or the prevailing wage, there was no requirement that plaintiffs exhaust their administrative remedy before filing suit.

People v. Honan, No. G042894, concerned a challenge to the trial court's order placing the defendant on probation with terms and conditions that included lifetime registration as a sex offender following a conviction for lewd conduct and indecent exposure.  In affirmin, the court held that, because defendant has failed to establish the first prerequisite for an equal protection challenge, his claim that mandatory registration as a consequence of his section 314(1) conviction is unconstitutional is rejected.

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In People v. Hartsch, S074804, the California Supreme Court faced a challenge to a conviction of defendant for three counts of first degree murder and sentence of death based on the special circumstance of multiple murder.  In affirming, the court held, inter alia, that defendant failed to meet his burden of establishing a prima facie case of discrimination in the prosecutor's use of peremptory challenges.  The court rejected defendant's claim that the court's failure to sever the charges resulted in a fundamentally unfair trial, denying him due process as without merit. The court held that the trial court did not err in excluding testimony of certain witnesses, and since there was ample corroboration, defendant could not have been prejudiced by the omission of his proposed instruction on accomplice liability for felony murder.  Finally, the court held that defendant's challenges to the death penalty law and instructions are meritless, and that no error affected the guilt or penalty verdict, considered individually or conjunctively.

People v. Williams, No. S029490, concerned a challenge to a conviction of defendant for first-degree murder and other crimes and sentence of death.  The court affirmed in its entirety over defendant's claims of: 1) the statements that he made to the police following his arrest were obtained in violation of Miranda and were involuntary; 2) the taint of the initial police coercion infected a witness's trial testimony in violation of defendant's right to a fair trial as guaranteed by the due process clause of the U.S. Constitution; 3) the trial court erred in failing to instruct the jury on consideration of accomplice testimony; 4) the trial court erred in delivering former CALJIC No. 2.11.5 without amendment; 5) the trial court erred in its prior felony conviction instructions; 6) asserted prosecutorial misconduct; 7) instruction on the Governor's commutation power; and 8) unconstitutionality of California's death penalty scheme.

Tverberg v. Fillner Constr., Inc., No. S169753, concerned the Court of Appeal's reversal of the trial court's grant of general contractor's motion for summary judgment in an independent contractor's suit against the general contractor for his injuries sustained as a construction jobsite.  In reversing, the court held that the doctrine of peculiar risk does not apply when, as here, an on-the-job injured independent contractor hired by a subcontractor seeks to hold the general contractor vicariously liable for injuries arising from risks inherent in the nature of the location of the hired work over which the independent contractor has, through the chain of delegation, been granted control.

In re Marriage of Sonne, No. H030110, concerned a challenge to the judgment of the trial court in dividing the parties' interests in husband's California Public Employees' Retirements System (CalPERS) retirement allowance and survivor benefit, in marital dissolution proceedings.  In reversing, the court held that the trial court abused its discretion both in concluding that the reacquired service credit was entirely community property and in awarding the entire survivor benefit to the wife.

In re T.J., No. C061890, concerned a conviction of a minor defendant for committing lewd acts on a child, juvenile court's conclusion that the minor is eligible, but not suitable for a deferred entry of judgment (DEJ), and adjudging the minor a ward of the court and ordering probation is affirmed as, the minor was not entitled to DEJ because he did not admit the allegations of the section 602 petition and necessarily did not do so in lieu of jurisdictional and dispositional hearings.

Pennsylvania Gen. Ins. Co. v. Am. Safety Indem. Co., No. D054522, concerned a suit for equitable contribution for a portion of the defense and indemnity costs paid by the plaintiff-insurer in the underlying construction defect litigation against the insured.  In reversing the trial court's judgment in favor of the defendant-insurer, the court held that the defendant's CGL policy is reasonably susceptible to the interpretation that the trigger of coverage was damage to property, not the causal conduct, and the 1999 endorsements were merely designed to obviate the application of the "progressive damage-continuous trigger" articulated in Montrose Chem. Corp. v. Admiral Ins. Co. (1995) 10 Cal. 4th 645.

Scott v. Rayhrer, No. B209160, concerned a medical malpractice suit, arising from a surgery for colorectal cancer where a drain inserted after the surgery was left in plaintiff's abdomen and not discovered and removed until 20 months later.  In affirming the the judgment, the court held that the trial court did not err in refusing to give the res ipsa loquitur instruction as to one of the doctors, in instructing the jury that a finding of negligence must be based on expert testimony, and iin its instruction to the jury on the standard of care.

Steinman v. Malamed, No. B216291, concerned a defendant's motion to enforce the prepayment provision under the settlement agreement arising from plaintiffs' suit for breach of fiduciary duty and fraud, seeking to recover overpayment amount.  In reversing the trial court's grant of the motion and award of attorney's fees and prejudgment interest, the court held that the trial court's finding that defendant's payment was made under protest and was involuntary is not supported by substantial evidence.  Furthermore, the California Uniform Commercial Code does not apply.  And lastly, plaintiff is the prevailing party and is entitled to attorney's fees.

Related Resources:

  • Full text of People v. Hartsch
  • Full text of People v. Hartsch
  • Full text of People v. Williams
  • Full text of People v. Williams
  • Full text of Tverberg v. Fillner Constr., Inc
  • Full text of Tverberg v. Fillner Constr., Inc
  • Full text of In re Marriage of Sonne
  • Full text of In re Marriage of Sonne
  • Full text of In re T.J
  • Full text of In re T.J
  • Full text of Pennsylvania Gen. Ins. Co. v. Am. Safety Indem. Co
  • Full text of Pennsylvania Gen. Ins. Co. v. Am. Safety Indem. Co
  • Full text of Scott v. Rayhrer
  • Full text of Scott v. Rayhrer
  • Full text of Steinman v. Malamed
  • Full text of Steinman v. Malamed

 

People v. Int'l Fid. Ins., Co., No. G042328, concerned a challenge to the trial court's denial of a motion to vacate a forfeiture and exonerate bail in a prosecution of defendant for attempted murder and other crimes.  In affirming, the court held that the trial court did not err in denying the motion as, although defendant was subject to a greater potential maximum penalty under the first amended information than he had been under the original complaint, the charges in the first amended information were based on the same acts alleged in the complaint.  The court also concluded that the certificate of mailing of the notice of forfeiture which was signed by a deputy clerk on behalf of the clerk of the court was properly executed. 

Greenspan v. LADT, LLC, No. B213866, concerned a challenge to the trial court's confirmation of an arbitrator's award against defendants in the amount of $6.34 million in a trust's suit for breach of contract and other claims against two affiliated companies and individuals.  In affirming, the court held that, per the JAMS rules, the arbitrator, not a court, determines what issues are arbitrable, and here, the arbitrator determined that the issue of joint and several liability was arbitrable.  The court also held that the arbitrator's finding of joint and several liability was rationally related to the parties' contract, and as to the timeliness of the final award under JAMS rules, the arbitrator's interpretation and application of the rules cannot be judicially reviewed on the merits.  Lastly, the court held that the suit against the arbitrator was barred by arbitral immunity and would not have caused a reasonable person to doubt the arbitrator's impartiality.     

Samantha C. v. State Dep't of Developmental Serv., No. B211710, concerned a plaintiff's petition for a writ of mandate and a request for declaratory relief challenging the determinations made by Harbor Regional Center and the state Department of Developmental Services that she did not have a developmental disability and was therefore not entitled to services under the Lanterman Developmental Disabilities Services Act.  In affirming in part, the court held that the trial court's judgment upholding the validity of the regulations was proper as they are consistent with section 4512(a).  However, the court reversed in part the judgment of the trial court's determination that plaintiff does not have a developmental disability under the Lanterman Act, as she has a disabling condition related to her birth injuries which requires treatment within the meaning of the part of section 4512(a) known as the fifth category. 

People v. Bloom, No. E048326, concerned a conviction of defendant for resisting arrest and other related charges, arising from making more than 40 harassing calls to 911 in a single evening.  In affirming the conviction over a challenge to a denial of a motion to suppress, the court held that the dispatcher lawfully arrested defendant for making the calls and she was not required to physically restrain him or to be present at the time of the arrest. 

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Also, Contract, Employment Class Action, & Tort Matters

Baker v. Am. Horticulture Supply, Inc., No. B212975, concerned an independent wholesale sales representative's suit for breach of contract, promissory fraud, and a violation under the Independent Wholesale Sales Representatives Contractual Relations Act of 1990.  In affirming in part, the court held that the trial court did not abuse its discretion in granting a new trial on the breach of contract and promissory fraud claims in concluding that the award of damages was excessive and that plaintiff was not entitled to a 10% commission in alleged sales.  However, the court reversed the trial court's grant of defendant's motion for a directed verdict on the violation of the Act claim as the evidence is sufficient to support a finding that defendant willfully failed to enter into a written contract as required by the Act. 

Faulkinbury v. Boyd & Assoc. Inc., No. G041702, concerned a suit brought by about 4000 current and former employees against an employer, claiming that the company, which provides security guard services throughout Southern California, denied meal and rest breaks and failed to pay for overtime.  In affirming in part, the court held that the trial court's order denying the motion for class certification as to the meal break class and the rest break class was proper as the trial court did not abuse its discretion in finding common issues of law and fact did not predominate over individual issues.  However, the trial court's order denying the motion for class certification as to the overtime-pay class is reversed and remanded.   

Yanez v. SOMA Envtl. Eng'g, Inc., No. A123893, concerned a challenge to the trial court's grant of defendants' motion to reduce the award for medical expenses from $44,519.01 to $18,368.24 in plaintiff's suit for injuries she suffered in an automobile accident.  In reversing, the court held that the trial court erred in reducing plaintiff's damages to the amount actually paid by her insurers as the amounts written off by plaintiff's health care providers constitute collateral benefits of her insurance.  The court further held that on remand, the trial court is to award plaintiff prejudgment interest under Civ. Code section 3291.     

People v. Int'l Fid. Ins., Co., No. G042328, concerned a challenge to the trial court's denial of a motion to vacate the forfeiture and exonerate bail in a prosecution of defendant for attempted murder and other crimes.  In affirming the decision, the court held that the trial court did not err in denying the motion as, although defendant was subject to a greater potential maximum penalty under the first amended information than he had been under the original complaint, the charges in the first amended information were based on the same acts alleged in the complaint.  Court also held that the certificate of mailing of the notice of forfeiture which was signed by a deputy clerk on behalf of the clerk of the court was properly executed.  

People v. Gastello, No. S153170, concerned People's challenge to the Court of Appeal's reversal of defendant's conviction under section 4573, which makes it a felony for any person to knowingly bring a controlled substance into a custodial setting.  In reversing, the court held that the statute applies to someone who has a controlled substance in his possession when arrested for another crime, and who knowingly and voluntarily brings the drugs into jail when booked pursuant to that arrest.  Furthermore, the court held that a violation of section 4573 does not involve compelled self-incriminating "testimony," but rather the nontestimonial act of knowingly bringing drugs into a correctional facility.     

People v. Low, No. S151961, concerned a challenge to a conviction of defendant for violating Penal Code section 4573, which makes it a felony for any person to knowingly bring into any state prison or into any county jail any controlled substance.  In affirming the conviction, the court held that section 4573 applies to someone who is arrested and brought into jail, and who is found to possess a controlled substance during the booking process.  Further, enforcement of section 4573 does not violate the Fifth Amendment ban on the criminal use of compelled incriminating testimony as the statute does not coerce anyone to admit guilt of any crime or punish them for failing to do so.   

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Injury Suit by Burglar Against Cohort Getaway Driver

Also Rulings re Adult Cabaret vs. Church, Plus Criminal & Family Law Matters

People v. Garcia, No. E048416, concerned a challenge to the trial court's restitution order following defendant's no contest plea to a single count of felony false imprisonment by force in exchange for dismissing a rape charge and another separate case.  In affirming, the court held that the trial court appropriately allowed only a limited inquiry into the confidences of the psychotherapist-patient relationship, compelling disclosure of only those matters directly relevant to the issue of restitution for the victim's therapy costs.  Furthermore, by not requesting at the restitution hearing, enforcement of a subpoena duces tecum, defendant forfeited his objection on appeal.  The court also held that there was sufficient evidence establishing that the doctor charged the victim $4,764.71 for therapy and that the victim was ultimately responsible for paying that amount, and that defendant's objection to the doctor's $500 witness fee is forfeited.     

People v. Lopez, No. E048027, concerned a challenge to a conviction of defendant for molesting his two stepdaughters, including convictions for committing a lewd act upon a child under the age of 14.  In affirming, the court held that, under the totality of the circumstances, the evidence supported a reasonable finding that there was a touching concurrent with lewd intent, in violation of section 288(a).    

In re Marriage of Hartman, No. B215917, concerned a trial court's denial of wife's motion to vacate an order restraining her from interfering with ex-husband's child custody time.  The court affirmed the denial in holding that the restraining order is neither ambiguous nor overbroad.     

Schaffer v. Superior Court, No. B217743, involved a defendant's request for extraordinary relief to set aside an order of the superior court denying his motion to compel the People to provide copies of discovery under Penal Code section 1054.1 free of charge.  In denying the request, the court held that section 1054.1 imposes no such duty on the prosecution as the People comply with section 1054.1 by affording a defendant an opportunity to examine, inspect, or copy the discoverable items, and a non-indigent defendant may receive at his or her expense copies of discovery made available by the People. 

In People v. Tompkins, No. E047842, the court affirmed defendant's conviction of multiple counts of lewd and lascivious acts with a minor under the age of 14 and rejected defendant's numerous claims including: 1) that the corpus delicti rule prohibited convicting him of acts described only by his out-of-court statements; 2) victim's generic testimony was insufficient to establish his guilt; 3) that there was no evidence that he filed the victim; 4) that the trial court erred in allowing a detective to testify as an expert on child sex abuse victims; and 5) that imposition the upper term for one count violated his constitutional rights.     

Espinosa v. Kirkwood, No. E048472, involved plaintiffs' suit against the driver of their getaway vehicle (they were participants in a burglary) for damages for personal injuries sustained in a vehicle collision while fleeing from the police.  In affirming the trial court's judgment in favor of the defendant, the court held that, because the plaintiffs' injuries were "in any way proximately caused by their commission of a felony or immediate flight therefrom," they were barred from recovering damages based on negligence.   

Madain v. City of Stanton, No. G042218, concerned a plaintiff's petition for a writ of mandate challenging the city's denial of his application for a permit to operate an adult-oriented cabaret, on the ground that the location selected by the plaintiff was within 300 feet of a planned church, trial court's denial of the petition is reversed and remanded as, the city abused its discretion in failing to address whether plaintiff's application was presented to, and should have been accepted by, the city prior to the date the church filed its own application in determining whether the church's application was legitimately entitled to sensitive use priority.   

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In re Maes, No. C062967, concerned a defendant's petition for habeas relief claiming that he is entitled to conduct credits during service of his term for spousal abuse conviction.  In denying the petition, the court held that section 2933.2 bars such credit as a defendant convicted of murder and sentenced to an indeterminate life term is not entitled to earn post-sentence conduct credit against a consecutive determinate term imposed for a separate offense, which section 669 directs to be served first. 

In re Kyle E., No. C061669, concerned a father's challenge to the juvenile court's visitation order with his minor son in juvenile dependency proceedings.  In reversing the juvenile court's visitation order, the court remanded the matter in concluding that the court order unlawfully delegated the responsibility of whether or not the father's visitation would occur at all to the Sacramento County Department of Health and Human Services.     

In People v. Ogle, No. B214086, the Second District faced a challenge to a conviction of defendant for making criminal threats, disobeying a domestic relations order, and stalking, claiming that his prior conviction for stalking was inadmissible to prove propensity because it was not a crime of domestic violence.  In affirming the conviction, the court held that stalking is an act of domestic violence within the meaning of Evidence Code section 1109 and thus admissible to prove propensity to commit the crime of making criminal threats.   

Aryeh v. Canon Bus. Solutions, Inc., No. B213104, concerned a plaintiff's suit brought under the Unfair Competition Law (UCL), on behalf of himself and similarly situated persons who entered into copy rental agreements with defendant and who were overcharged for copies.  Inaffirming the trial court's judgment sustaining defendant's general demurrer without leave to amend, the court held that plaintiff's UCL cause of action accrued more than four years before he filed his action, and the continuing violation doctrine does not apply to the circumstances of this case.     

In People v. Morris, No. C060358, the Third District faced a challenge to a conviction of defendant for robbery, grand theft and other related crimes.  In striking the section 667.9 sentence enhancement, the court held that there was insufficient evidence that defendant knew or should have known the victim was "developmentally disabled" within the meaning of the enhancement statute.     

Benson v. Superior Court, No. A127285, concerned a mother's suit against a county and the county coroner, for retaining her son's heart for further examination during a postmortem exam.  In granting the defendants' petitions for extraordinary relief, the court held that, a county coroner, conducting an inquiry into cause of death, has no duty to obtain consent from next of kin before retaining a part of the decedent's body to determine cause of death, or for scientific investigation or coroner training.     

In re Michael K., No. H034209, concerned a challenge to the trial court's grant of San Andreas Regional Center's (SARC) request for a court order to place a gravely disabled individual in a particular residential facility, in habeas proceedings brought by a public defender on behalf of the individual and under the authority of In re Hop.  In reversing, the court held that the parents and co-conservators successfully objected to their son's community placement and properly invoked the statutorily authorized administrative procedure to challenge that placement, and the within petition sought to relitigate the same claim among the same parties that the administrative decision put to rest.  

Whittemore v. Owens Healthcare, No. C060873, concerned a challenge to the trial court's order sustaining defendant's demurrer without leave to amend in plaintiffs' suit against pharmacies brought under the Drug Dealer Liability Act.  In affirming, the court held that contrary to the ruling below, the doctrine of unclean hands does not preclude recovery in circumstances covered by the Act because the very purpose of the Act is to permit recovery of damages in specified circumstances by the user and others damaged by the use of the drugs.  However, the pharmacies did not knowingly market the controlled substances to plaintiff, as is required for liability under the Act. 

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Myrick v. Mastagni, B209854, concerned a wrongful death action against building owners for negligence in failing to perform seismic retrofitting of the building that killed two women in a 2003 earthquake.  In affirming the judgment of the trial court, the court held that a city ordinance requiring hazardous buildings to be retrofitted by a certain date does not insulate owners of unreinforced masonry buildings from negligence causing death or injuries prior to the compliance date.  The court also held that the Civ. Code section 1431.1 and 1431.2 do not apply to defendants in a joint venture.     

In Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC, No. G041414, the Fourth District faced a challenge to the trial court's grant of defendant's motion for nonsuit and expert witness fees is in a tenant's suit against the defendant-landlord over a lease for new commercial property.  In affirming, the court held that the trial court's decision granting the nonsuit was proper as a matter of law, and that the trial court did not err by allowing defendant to recover its expert witness fees pursuant to the lease.     

Fox v. JAMDAT Mobile, Inc., No. B212672, concerned a stockholder's suit against a company and individual directors, claiming that both the acquisition process, and the common stock arising from the acquisition were unfair.  In reversing in part, the court held that the doctrine of shareholder ratification does not bar the intervenor's claims.  The court also held that the intervenor's complaint, which consists of a single cause of action states facts sufficient for a cause of action for breach of fiduciary duties as to the individual directors.  However, the trial court's judgment sustaining the demurrer as to the company is affirmed.     

In People v. Fontana, No. S170528, the California Supreme Court faced a challenge to the judgment of the court of appeal reversing defendant's sex offense related conviction.  In reversing, the court held that, although the trial court erred in failing to conduct a hearing under Evidence Code section 782 to investigate whether the victim's prior sexual activity could have provided an alternative explanation for her oral and vaginal injuries, and even assuming the hearing would have established the existence and relevance of sexual conduct by the victim earlier that day, the exclusion of such evidence was harmless under any standard. The court also held that the trial court did not abuse its discretion in excluding evidence of the victim's sexual conduct earlier that day, to the extent it was offered to corroborate defendant's testimony.  

Lastly, Kleffman v. Vonage Holdings Corp., No. S169195, concerned a plaintiff's class action suit under section 17529.5(a)(2), which makes it unlawful to advertise in a commercial e-mail advertisement (i.e. spam) that "contains or is accompanied by falsified, misrepresented, or forged header information."   In affirming the dismissal of the complaint for failure to state a claim, the court held that sending commercial e-mail advertisements from multiple domain names for the purpose of bypassing spam filters is not unlawful under section 17529.5(a)(2). 

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In People v. Eusebio, No. B216149, the Second District faced a challenge to a defendant's seven year sentence for forgery conviction.  In affirming, the court held that an amendment to Penal Code section 4019 concerning conduct credit for county jail inmates is not to be applied retroactively and the prospective application does not violate defendant's right to equal protection under the California Constitution.     

In People v. Davis, No. B216348, the court faced a challenge to the trial court's order imposing a $30 facilities fee in a prosecution of defendant for being a felon in possession of a firearm.  In reversing the order, the court held that the new $30-$35 court facilities fee imposed by Gov. Code section 70353 does not apply to cases in which the defendant's conviction, by plea or jury verdict, was rendered before the January 1, 2009 effective date of the statute.   

Gardner v. Superior Court, No. A125861, concerned a challenge to the trial court's denial of defendant's motion for section 987.9 funds on the ground that the district attorney had not announced that he was seeking the death penalty and that until he did, defendant's case was not "presently a capital case."  In reversing, the court held that this was an error as a "capital case" as used in section 987.9 means one where the defendant faces the possibility of the death penalty, where defendant actually risks death.  Therefore, unless the district attorney makes an announcement to the contrary, a defendant charged with murder with special circumstances is exposed to that punishment, and a section 987.9 request must be heard on the merits.     

Harris v. Wachovia Mortgage, FSB, No. E048585, concerned a suit for breach of contract, breach of the implied covenant of good faith and fair dealing, and unfair business practices.  In affirming in part, the trial court's order sustaining without leave to amend a demurrer to plaintiffs' first amended complaint, the court held that the demurrer was properly sustained without leave to amend as to the unfair business practices claim as it was added without leave of court and exceeded the scope of the court's order granting leave to amend the original complaint.  Also, the court affirmed the trial court's order sustaining the as to the breach of the covenant of good faith and fair dealing claim as plaintiffs have not pleaded a violation of any duty arising under tort law.  However, the court reversed and remanded as to the order sustaining the demurrer as to the breach of contract claim as the settlement agreement is not preempted by Home Owners' Loan Act (HOLA).  Lastly, the court reversed the award of costs including attorney fees as a matter of law.     

In Tomlinson v. County of Alameda, No. A125471, the First District faced a challenge to the trial court's denial of plaintiffs' petition for a writ of administrative mandate, challenging a decision of a county to approve a subdivision development.  In reversing the trial court's denial of the petition, the court held that the project was not exempt from CEQA review as the county used the wrong legal standard in applying the exemption and substantial evidence does not show the proposed subdivision satisfied the exemption's criteria.     

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In Wolf v. CDS Devco, No. D055034, the Fourth District faced a challenge to the trial court's judgment sustaining defendants' demurrers without leave to amend in plaintiff's suit seeking enforcement of the "absolute" rights of a director to inspect corporate books.  In affirming the judgment, the court held that the trial court did not abuse its discretion by determining that plaintiff, as a former director, had no statutory standing as a director to pursue his demands for inspection of the company records, and he had not presented any sufficient basis to create any exceptions to the rule. 

San Diego Navy Broadway Complex Coalition v. City of San Diego, No. D055699, concerned a nonprofit organization's petition for writ of mandate claiming that defendant-city violated CEQA in determining that no further environmental review of a project was required.  In holding that the trial court did not err in denying the plaintiff's amended petition, the court concluded that the city was not required to prepare a subsequent or supplemental EIR regarding the potential impact of a redevelopment project called the Navy Broadway Complex Project on global climate change because the city did not grant a discretionary approval that would provide it with the authority to address the project's impact on this environmental issue.     

In People v. Datt, No. H033079, the Sixth District faced a challenge to a conviction and sentence of defendant for reckless evading, being under the influence of a controlled substance, resisting an officer, and other crimes.  In affirming the conviction and the sentence, the court held that the trial court's instruction regarding the lack of need for unanimity was not erroneous.  Further, the defendant has not shown that his trial counsel was deficient in failing to present expert eyewitness identification testimony.     

Hervey v. Mercury Cas. Co., No. B215470, concerned a plaintiff's suit against her automobile insurance carrier, alleging that the insurer breached the policy by offsetting uninsured motorist payments due her for injuries suffered in an automobile accident with the amount the insurer paid plaintiff under the medical expense coverage in the same policy for the same accident.  In affirming the trial court's judgment, the court held that the trial court properly sustained without leave to amend the insurer's demurrer to plaintiff's class action complaint because the policy was not reasonably susceptible to plaintiff's interpretation of it.     

Kern County Water Agency v. Watershed Enforcers, No. A117715, concerned a challenge to the  judgment of the trial court granting a peremptory writ of mandate in a nonprofit organization's petition for writ of mandate to compel the California Department of Water Resources to stop taking endangered or threatened species of fish without permit authority under the California Endangered Species Act.  In affirming the grant of peremptory writ, the court held that the a state agency is a "person" within the meaning of section 2080, which prohibits any "person" from taking an endangered or threatened species without appropriate permit authority from the California Department of Fish and Game.   

In Minkler v. Safeco Ins. Co. of Am., No. S174016, the California Supreme Court dealt with a dispute over a homeowner's insurance coverage, arising from plaintiff's suit against a mother and her son for being sexually molested by the son in their home.  The court ruled that an exclusion of coverage for the intentional acts of "an insured," read in conjunction with a severability or "separate insurance" clause like the one at issue in this case, creates an ambiguity which must be construed in favor of coverage that a lay policyholder would reasonably expect.

Here, a lay insured would reasonably anticipate that under a policy containing such a clause, each insured's coverage would be analyzed separately, so that the intentional act of one insured would not, in and of itself, bar liability coverage of another insured for the latter's independent act that did not come within the terms of the exclusion.  Therefore, the homeowner was not precluded form coverage for any personal role she played in her son's molestations of plaintiff merely because the son's conduct fell within the exclusion for intentional acts. 

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City of San Jose v. Union Pac. R.R. Co., No. H033503, concerned a city's suit against a railroad company to condemn roadway easements over railroad tracks to widen an already existing road.  In affirming the trial court's judgment, the court held that, under the controlling authority of Oakland v. Schenck, 197 Cal. 456 (1925), the city was free to argue that, despite the parceling, the entire taking amounted to no more than a nominal diminishment of the railroad company's right to use the land for railroad tracks. 

In re Ross, No. C062466, concerned a defendant's petition for habeas relief challenging the Governor's reversal of the parole board's finding that he was suitable for parole.  In denying the petition, the court held that, when on remand after the granting of a petition for writ of habeas corpus, a governor reconsiders whether a prisoner is suitable for parole, the governor is permitted to rely on new evidence provided to him by the parole board and regarding which the inmate has had an opportunity to respond.     

In re Furnace, No. F058113, concerned a defendant's petition for habeas relief, claiming that the evidence used to validate him and place him in the security housing unit for an indeterminate term was false, unreliable and insufficient.  In denying the defendant's petition for relief, the court held that "some evidence" necessary to support defendant's validation is present in the record.  Furthermore, the court held that the regulation meets the four-pronged Turner test as defendant's validation, which was based in part on his possession of a book, newspaper article, pictures, and CD, did not violate his First Amendment rights. 

Luna v. Brownell, No. B212757, concerned the issue of whether a deed is void if real property  is transferred by a quitclaim deed to the trustee of a trust that has not been formed.  The court held that it is not void as between the grantor and grantee merely because the trust had not been created at the time the deed was executed, if (1) the deed was executed in anticipation of the creation of the trust and (2) the trust is in fact created thereafter. Such a deed is valid between the grantor and grantee on the date the trust was formed. 

Legacy Vulcan Corp. v. Superior Court, No. B215713, concerned an insured's 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.  In granting the petition, the court 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 insurance.  Furthermore, the court held that the plaintiff need not show that the claims were actually covered under the policy in order to establish a duty to defend with respect to the primary coverage provided by the umbrella provision, but need only show a potential for coverage.  Lastly, the court held that a "retained limit" or "self-insured retention" provision in a policy providing primary coverage relieves the insurer of the duty to provide an immediate "first dollar" defense only if the policy expressly so provides, and as such, plaintiff need not have incurred a liability in excess of the retained limit described in the policy before the insurer's duty to defend could arise. 

Kruss v. Booth, No. G041738, concerned a shareholder derivative suit, involving a variation on a pump and dump scheme.  In reversing the trial court's judgment of dismissal, the court held that the plaintiff must be given leave to amend his second amended complaint so as to allege violations of director fiduciary duty under California law as he had alleged violations of California law in his first amended complaint, but the trial court erroneously thought the case was governed by Nevada law and required plaintiff to plead violations of Nevada law in the second amended complain.  Furthermore, the court held that the trial court erred in dismissing the suit as the second amended complaint alleged self-dealing on the part of the defendant directors that continued into the period when the plaintiff did own stock in the company.  

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In re D.R., No. A124573, involved the Alameda County Social Services Agency's appeal from the juvenile court's order denying the agency's motion to terminate the de facto parent status of respondent, and granting the application of respondent's partner for de facto parent status.  The court of appeal affirmed on the grounds that 1) the juvenile court had the authority to determine that respondent's conduct constituted serious physical abuse, but conclude that the single incident of misconduct found to have occurred did not rise to the level warranting termination of his de facto parent status; and 2) the juvenile court did not abuse its discretion in denying the motion to terminate respondent's de facto parent status.

County of Los Angeles v. Glendora Redevelopment Project, No. H032945, concerned a reverse validation action by the County of Los Angeles challenging the City of Glendora's redevelopment plan.  The court of appeal affirmed the trial court's grant of a declaratory judgment that the plan was invalid, holding that the necessary findings of blight were not supported by substantial evidence in the administrative record.

Zoran Corp. v. Chen, No. H034432, concerned an action for breach of contract, misrepresentation, and related causes of action.  The court of appeal reversed summary judgment for defendant, on the ground that an issue of fact existed on the question of whether defendant dominated and controlled certain corporations and thus constituted their alter ego.

Soria v. Soria, No. G041661, involved an appeal from the trial court's award of attorneys' fees on the ground that a trustee contested the claim by a beneficiary of the trust in bad faith.  The court of appeal reversed on the ground that Probate Code section 17211(b) did not permit recovery of attorney fees for the simple reason that the claimants did not contest a trustee‟s account.

In People v. Benner, No. G042127, the court of appeal affirmed defendant's conviction for driving under the influence of methamphetamine, holding that 1) the jury could reasonably conclude that methamphetamine is a drug that could impair a person‟s ability to drive a vehicle in a reasonably prudent manner; and 2) the evidence readily suggested that defendant's driving ability was appreciably impaired.  However, defendant's sentence is modified where 1) the trial court erred by conditioning defendant's probation on the payment of certain fees and costs; and 2) defendant's alcohol abuse education fee was not authorized under Penal Code section 1463.25.

Embassy LLC v. City of Santa Monica, No. B217622, involved a petition for writ of mandate and complaint for declaratory relief, seeking an order compelling the City of Santa Monica to permit the removal of petitioners' units from the rental housing market and a declaration that the Ellis Act waiver in the parties' agreement was unenforceable.  The court of appeal reversed on the ground that Government Code section 7060.1 prohibited public entities from enforcing contractual Ellis Act waivers in all circumstances except those specified in the statute.  A contract between appellants Embassy LLC and PRG Embassy Properties, L.P., and respondents City of Santa Monica and its Rent Control Board (collectively, the City) included appellants' waiver of their Ellis Act rights as to 19 tenant units in their apartment hotel.

In People v. Riley, No. D054660, the court of appeal affirmed defendant's conviction for possessing marijuana in a prison facility, on the grounds that 1) there was nothing to suggest that the prosecutor failed to present evidence regarding drug quantity in its case-in-chief in an attempt to gain an advantage, or because the prosecutor could not have presented the evidence earlier; and 2) the trial court did not abuse its discretion in allowing an expert witness to testify on the question of the usability of the quantity of marijuana found in defendant's coin purse.

Culver Ctr. Ptnrs. East #1, L.P. v. Baja Fresh Westlake Vill., Inc., No. B217037, involved an unlawful detainer action regarding the tenancy of a fast food restaurant in a shopping center.  The court of appeal affirmed summary judgment for defendant, holding that plaintiff-landlord failed to present any evidence that an electronic notice had been delivered to the street address specified in the parties‟ lease.

Greenlake Capital, LLC v. Bingo Invs., LLC, No. B215487, concerned an action to recover plaintiff's fee for identifying and procuring a credit facility in favor of defendant.  The court of appeal reversed summary judgment for defendants, holding that triable issues of fact relating to which services were barred by Cal. Real Estate Law section 10136 and which were compensable under the parties' agreement precluded summary judgment.

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Homebuilders Ass'n of Tulare/Kings Counties, Inc. v. City of Lemoore, No. F057671, concerned a challenge to a city's development impact fees as being invalid under the Mitigation Fee Act.  The court affirmed the trial court's judgment for the most part, but vacated in part where the fire protection impact fee for the east side of the city is invalid in that it is not reasonably related to the burden created by the development project.     

Munn v. Briggs, No. D055668, concerned a plaintiff's petition in probate court against his sister and brother-in-law alleging tortious interference with his inheritance expectancy.  In affirming the probate court's order sustaining without leave to amend defendants' demurrer, the court held that because the plaintiff had an adequate remedy in probate to assert his fraud/undue influence claim against defendants, under the present circumstances, a cause of action in tort of interference with an expected inheritance will not be recognized.     

In G.R. v. Intelligator, No. G042006  the court faced a challenge to the trial court's grant of an attorney's special motion to strike plaintiff's complaint, arising from the attorney's representation of plaintiff's ex-wife in postmarital dissolution proceedings.  In affirming the trial court's judgment, the court held that the attorney's filing a copy of plaintiff's credit report in support of a motion was protected petitioning activity and the plaintiff failed to meet his burden of demonstrating probability of success on his claims.  Furthermore, the cour theld that plaintiff failed to show either that the trial court abused its discretion in awarding the attorney fees and costs or that it erred in denying his motion for reconsideration.   

Formet v. Lloyd Termite Control Co., No. G042436, involved a plaintiff's suit against a licensed pest inspection company, alleging that she sustained injuries from falling from a balcony as the result of the defendant company's failure to discover and disclose a specified area of dry rot damage.  In affirming the trial court's grant of summary judgment in favor of defendant, the court held that FSR Brokerage, Inc. v. Superior Court, 35 Cal.App.4th 69 limits the duty owed by pest inspectors to third parties and that defendant's inspection did not create a duty to plaintiff.  Moreover, an analysis of the Rowland factors weighs in favor of a finding of no legal duty.   

People v. Indiana Lumbermens Mut. Ins. Co., No. S175907, concerned a challenge to the court of appeals' reversal of trial court's denial  of a motion to set aside a forfeiture and exonerate a bond.  In reversing, the court held that a motion for relief from forfeiture of bail must be made within 180 days of forfeiture, unless the time is extended as the governing statute permits, even when an absconding defendant is arrested or surrendered in a county other than the jurisdiction where the case is pending.     

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In In re Marriage of Jill & Victor D., No. C062388, the Third District faced a challenge to the juvenile court's judgment terminating a father's parental rights so the minors could be adopted by their stepfather.  In affirming the judgment, the court held that the court properly held that the circumstances by which the minors' mother initially assumed sole physical custody of them was irrelevant to the determination whether the father left the minors within the meaning of the statutory scheme.  Furthermore, the court held that the father's claim that there was insufficient evidence to support the juvenile court's finding that he left the minors for one year with the intent to abandon them during that time is rejected.     

In People v. Wilkinson, No. F057537, the Fifth District faced a challenge to the trial court's order to have petitioner committed to the California Department of Developmental Services for placement.  In reversing the commitment order, the court held that the trial court erred in accepting the attorney's waiver of petitioner's right to be present at the hearing over her objection, and this error was not harmless.     

In People v. Beckley, No. B212529, the First District faced a challenge to a conviction of two defendants for first degree murder and other crimes involving rival gang members.  In affirming the convictions, the court held that, although the prosecutions' failure to authenticate a photograph and "gang roster" downloaded from internet web sites should have barred their admission,  the error was harmless as to both defendants.   

People v. Johnson, No. A123469, the court faced a challenge to a conviction of defendant for attempted murder of his girlfriend and related charges.  In affirming the conviction, the court held that Evidence Code section 1109 is constitutional on its face.  Furthermore, the court held that the remoteness of the prior acts of domestic violence did not render application of section 1109 unconstitutional, and that the trial court did not abuse its discretion in admitting that evidence.  The court went on to conclude that the trial court did not abuse its discretion in determining that the evidence was not substantially more prejudicial than probative under section 352 and section 1109(a), that the court properly determined that admission of the evidence was "in the interest of justice" under section 1109(c), and that any hypothesized error in the admission of evidence was harmless.  Finally, the court held that the trial court's ruling under section 1101(b) was proper, and any instructional error on this point was harmless.     

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Walgreen's Challenge to S.F. Tobacco Ordinance

Also, Habeas Proceeding and Ruling re Administering Injections to Diabetic Students

Am. Nurses Ass'n v. O'Connell, No. C061150, concerned an action against the Superintendent of Public Instruction and the California Department of Education (CDE) challenging a portion of a legal advisory regarding the rights of students with disabilities in K-12 public schools, arising from a 2005 class action settlement.  In affirming the trial court's judgment and peremptory writ of mandate issued, the court held that California law does not allow designated voluntary school personnel, who are not licensed nurses, to administer insulin to diabetic students who require the injections under a section 504 Plan or Individualized Education Program. 

In In re Shippman, No. A125182, the First District dealt with a defendant's petition for habeas relief from his conviction for second degree murder of his wife.  In denying the petition, the court held that the evidence of defendant's lack of insight and unstable social history is sufficient to support the Parole Board's determination that defendant's release would unreasonably endanger public safety. 

Walgreen Co. v. City and County of San Francisco, No. A123891, concerned a challenge to the judgment of the trial court sustaining the defendant's demurrer without leave to amend in plaintiff-Walgreen's suit challenging a San Francisco ordinance banning the sale of tobacco products in certain retail establishments that contain a pharmacy.

In reversing in part, the court held that Walgreen's complaint adequately states a cause of action alleging an equal protection violation. Here, the challenged distinction among stores containing licensed pharmacies is not fairly related to the object of the prohibition on sales of tobacco products, as there is no rational basis to believe the supposed implied message conveyed by selling tobacco products at a Walgreens that has a licensed pharmacy is different in any meaningful way from the implied message conveyed by selling such products at a supermarket or big box store that contains a licensed pharmacy.  

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In People v. Vang, No.D054343, the Fourth District faced a challenge to the conviction of defendants for assault by means of force likely to cause great bodily injury and a jury finding that the special allegation was true.  In affirming the conviction, the court held that, although the trial court erred in admitting expert opinion on defendant's knowledge and intent in response to two hypothetical questions, the error was harmless.  The court also held that the trial court did not abuse its discretion in denying defendants' motion in limine to bifurcate the gang enhancement allegations from the trial of the underlying assault, and that the trial court did not abuse its discretion in excluding certain evidence at issue.  Lastly, the court modified one of the defendant's probation condition regarding use of cell phone or paging device.

In People v. Keating, No. B210240, the Second District faced a challenge to a conviction of defendant for grand theft, forgery, and other crimes, all arising from various transactions involving a business defendant shared with a partner.  In affirming the convictions, the court held that the evidence presented at trial was sufficient to prove the charges against defendant.  However, with respect to defendant's sentence, the court held that defendant is entitled to recalculation of his presentence custody credits as the 2009 amendments to Penal Code section 4019 are retroactive. 

In People v. Weber, No. C060135, the Third District faced a challenge to a conviction of defendant for unlawful possession of a gun and ammunition, based on his prior conviction for spousal battery.  In affirming the conviction, the court held that the record supports the trial court's finding that defendant knowingly and voluntarily chose to waive counsel.  The  court also held that defendant's contentions that the trial court improperly failed to appoint counsel to represent him at the sentencing hearing, and improperly imposed the upper term, are rejected as without merit.  However, the court modified defendant's sentence as he is entitled to additional custody credits.  

In Greene v. Marin County Flood Control & Water Conservation Dist., No. S172199, the California Supreme Court dealt with a property owner's suit challenging the election results of a passage of the flood control district's proposal of a storm drainage fee fund improvements intended to prevent flooding and flood damage,

In reversing the judgment of the court of appeal and reinstating the judgment of the trial court denying plaintiff's election contest, the court held that the district conducted the election in accord with the literal language of article section 6(c) using ballots that were substantially similar to those authorized under section 4, and took measures to provide for ballot secrecy notwithstanding the fact that the ballots required the voters to disclose their identities.  Furthermore, the court stated that there is no other basis for invalidating the fee election at issue.     

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In Rogers v. Bell Helicopter Textron, Inc., No. C061943, the Third District faced a challenge to the trial court's grant of defendant's motion in limine to exclude certain evidence and a subsequent grant of defendant's motion for a nonsuit in plaintiff's suit against a manufacturer of the helicopter she was piloting at the time of her crash. 

In reversing the decision, the court held that the grant of defendant's motion in limine to exclude evidence that the maintenance manual was defective and caused the accident was in error as the maintenance manual here was not a part of the helicopter for purposes of the General Aviation Revitalization Act of 1994.

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In People v. Chung, No. B212210, the Second District faced a challenge to the trial court's denial of motion to suppress evidence in a conviction of defendant for animal cruelty.  In affirming the denial of motion to suppress evidence of an injured dog on the patio of defendant's residence and a dead dog in the freezer, the court held that exigent circumstances permitted warrantless entry of defendant's residence to aid a live animal police officers reasonably believed was being abused in violation of section 597(a).    

Collins v. Plant Insulation Co., No. A124268, concerned plaintiffs' suit for the death of a husband and father caused by mesothelioma as a result of asbestos exposure while working as a welder at a shipyard.  In reversing the trial court's grant of plaintiffs' motion for a directed verdict regarding the Navy, the court held that the trial court erred in excluding the Navy from the list of entities as to which the jury could apportion fault pursuant to Proposition 51.  Furthermore, the court held that on remand, retrial is limited to apportionment of fault among the Navy and defendants already found liable by the jury.   

In In re D.J., No. A125867, the First District faced a challenge to the juvenile court's judgment committing minor-defendant to the Division of Juvenile Justice (DJJ).  In affirming the judgment, the court held that the last petition alleging a DJJ-eligible offense against defendant was an April 2007 petition, which alleged both robbery and assault with a weapon by means of force likely to produce great bodily injury, and here, defendant admitted the robbery count, which is listed in section 707(c) as a DJJ-eligible offense.  

TWC Storage, LLC v. State Water Resources Control Bd., No.H033228, concerned a petition for a writ of administrative mandate, challenging the imposition of a $25,000 fine on the petitioner by the Regional Water Quality Control Board for the San Francisco Bay Region, based on a chemical spill on petitioner's property that infiltrated the groundwater.  In affirming the superior court's denial of the petition, the court held that the Regional Board properly applied the relevant statutes, Water Code section 13264 and section 13350(b). 

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In San Joaquin County Human Serv. Agency v. Marcus W., No. C060965, the Third District faced a challenge to the juvenile court's decision ordering a minor (a Jehova's Witness), who has sickle cell anemia, to undergo periodic blood transfusions to prevent him from suffering a third stroke and possibly death.  In reversing the order, the court held that the juvenile court lacked jurisdiction to issue the order against the minor's will and over the objection of his parents because the requirements of Welfare and Institutions Code section 369 were not met.   

Mabry v. Superior Court, No.G042911, concerned homeowners' petition for a writ of mandate challenging an order of the trial court, allowing for foreclosure to proceed on their home.  In granting the petition in part, the court remanded the matter for the trial court to determine whether or not the lender complied with Civil Code section 2923.5.  To the extent that the trial court's order precludes the assertion of any class action claims, the court denied the petition.

In People v. Duarte, No.G041195, the Fourth District faced a challenge to a conviction of defendant for firearm and gang related offenses.  The court affirmed the conviction but with modification as, where the underlying felony is a necessary element of the street terrorism charge, section 654 bars separate punishment, and here, the evidence demonstrated that defendant fired a weapon on one occasion.  Therefore, section 654 bars punishment for the firearm offense and a separate punishment for the street terrorism substantive offense for the same conduct.       

People v. Chikosi, No. G041014, concerned a challenge to a conviction of defendant for driving under the influence of alcohol, driving with a blood-alcohol level of .08% or more, and evading the police.  In affirming the conviction, the cour theld that the trial court did not err in allowing witnesses to rely on statements contained in accuracy records in forming their opinions, as the statements contained in the accuracy records were nontestimonial in nature.  However, the sentence is modified to stay defendant's sentence on a count for driving with a blood alcohol level of .08 percent or more.     

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Valencia v. Smyth, No. B216753, concerned plaintiffs' suit against real estate agents, title companies, and others, arising from a real estate transaction, claiming seven causes of action including, fraud, breach of fiduciary duty, unfair business practices, and negligent infliction of emotional distress. 

In affirming the trial court's judgment, the court held that, based on the plain meaning of the arbitration provision, the parties agreed that the California Arbitration Act (CAA), not the Federal Arbitration Act (FAA), would govern the arbitration.  The court further held that trial court did not abuse its discretion in denying arbitration given the possibility of conflicting rulings if the claims against defendant-agents had been arbitrated and the claims against the remaining defendants had been adjudicated in court.     

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In In re A.O., No. B218741, the Second District faced a challenge to the juvenile court's order on a supplemental petition terminating a home of parent order and removing father's daughter from his care after his arrest and incarceration.  In affirming  the order, the court held that substantial evidence supports the juvenile court's finding that the previous home of parent order was no longer effective to protect the daughter.  Furthermore, the court held that a basis to avoid the assertion of dependency court jurisdiction over a child under section 300(g) -- an incarcerated parent's making an appropriate arrangement for the care of the child by a relative or friend -- is inapplicable to a supplemental petition under section 387 because section 300(g) deals with the initial imposition of dependency court jurisdiction over a child, which is not at issue on a section 387 petition to terminate a home of parent order.     

Scalzo v. Am. Express Co., No. B213636, concerned a plaintiff's action against a credit card company and others for invasion of privacy, violation of California Financial Information Privacy Act, and other claims.  The court reversed in part the trial court's grant of two special motions to strike as the plaintiff's evidentiary support is sufficient to establish the requisite prima facie showing, and defendant has failed to establish as a matter of law that plaintiff cannot succeed on the merits showing that the claimed illegal acts occurred and caused damage unrelated to the underlying litigation.  The court affirming the trial court's grant of the remaining defendants' special motion to strike. 

In Gressett v. Superior Court, No. A127100, the First District faced a challenge to the trial court's order denying a former senior deputy district attorney's request that a particular attorney be appointed at county expense as his assigned counsel in a prosecution for multiple sex related crimes.  In affirming the denial, the court held that the trial court did not abuse its discretion when it held that defendant failed to establish good cause to depart from the statutory scheme for appointment of assigned counsel specified in section 987.2.    

Garcia v. Dep't of Motor Vehicles, No. A126130, concerned a plaintiff's petition for writ of administrative mandamus, seeking an order directing the DMV to set aside the suspension of his driving privileges.  In affirming the trial court's denial of the petition, the court held that the trial court did not err in concluding that plaintiff's change of mind regarding a blood test and his eventual consensual submission to such a test did not obviate the consequences of defendant's initial refusal and failure to complete the breath test. 

In Lucky United Properties Inv., Inc. v. Lee, No. A124965, the First District faced a challenge to the trial court's grant of defendants' motion to compel plaintiff's attorney to acknowledge the satisfaction of a prior order for attorney fees and costs and denying in part the attorney's motion for other attorney fees and costs incurred in connection with his successful motion to strike, arising from an underlying suit involving a contract dispute over purchase of real property.

In reversing the trial court's decision, the court first held that the trial court erred in denying the attorney's request for attorney fees as the judgment was not fully satisfied by the time the attorney brought his motion for attorney fees incurred in connection with the abstract of judgment and lien notices.  Next, the court held that the trial court erred in denying the attorney's memorandum of costs.  And lastly, the court held that the trial court erred in granting defendant's motion for satisfaction of judgment under section 724.050.   

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