California > Court of Appeal > 2020

California Courts of Appeal | Top Cases | January 2020

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Joseph Mitchell v Seiu Local 721

The facts in this case were much worse. Local 721's conduct was at least moderately reprehensible, justifying a higher ratio of punitive to compensable damages, and Mitchell's emotional distress damages were not based solely on "outrage and humiliation." (See Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 966 ["[u]nlike in State Farm, the compensatory damages here do not include compensation for outrage and humiliation"].) Mitchell testified that he felt depressed and devastated, that he experienced loss of self-worth, identity, satisfaction, and motivation, and that he suffered from sleep disturbances, irritability, anxiety, and upsetting thoughts about losing his job. Moreover, counsel for Mitchell told the jury "not [to] consider what you already awarded to [Mitchell]" in arriving at the amount of punitive damages, thus reducing the likelihood of a duplicative award. (See ibid. [closing arguments from both parties "made clear the purpose of the punitive damage award was to fine [the defendant] for its reprehensible conduct and warned the jury not to duplicate an amount awarded as part of the compensatory damages"].) Under the facts of this case, a ratio of 1.8 to 1 was not unconstitutionally excessive. (See Bankhead, supra, 205 Cal.App.4th at p. 90 [punitive damages award approximately 2.4 times compensatory damages was "well within the range for comparable cases, and [was] not extraordinarily high" where the conduct was highly reprehensible]; Century Surety Co., at pp. 966, 967 [ratio of 3.2 to 1 was not excessive where the jury awarded a substantial amount for "fear, anxiety, and emotional distress," but not for "outrage and humiliation"]; Gober v. Ralphs Grocery Co., supra, 137 Cal.App.4th at p. 223 ["six to one ratio of punitive to compensatory damages is. . . . reasonable and proportionate to the amount of harm suffered [for sexual harassment] and to the compensatory damages . . . , which already contained a punitive element"]; Zhang v. American ...

People v Cato

The present appeal presents, colloquially, a "perfect storm" that undermines any confidence I might otherwise have that this was a fair trial. There was a Brady failure to disclose as found by the trial court, there were serious questions about the reliability of the eyewitness identifications, there was prosecutorial misconduct, and harmless error was a major part of the rationale for affirmance. The errors were not merely technical or ancillary. Alone, but certainly together, they cast doubt on the testimony of the only two witnesses who identified appellant as the shooter. Castro's identification was seriously compromised by the manner in which he was shown appellant in a live show-up in blue jeans. The defense was disadvantaged prejudicially by not being advised of that live show-up. This was compounded by the doubts the detective expressed at trial that any show-up had occurred. Against this backdrop, appellant filed a motion for new trial after both Castro and Lara submitted declarations recanting their testimony and describing police tactics that affected their identifications. Then, the day the court had announced it would appoint counsel for Castro and Lara, but before the actual appointment, the prosecutor interviewed both witnesses and threatened them with perjury. Later, Castro and Lara refused to testify at the new trial motion. The court understandably found that it was "impossible to judge credibility from written declarations," and denied the motion for new trial. The majority assumes but does not decide that prosecutorial misconduct occurred but finds the error harmless. (Maj. opn., at p. 46.) It also finds no Brady violation because of no prejudice.

People v Hayes

Hayes contends that (1) the trial court violated his constitutional rights by revoking his pro per status, (2) the trial court abused its discretion by restraining him in a safety chair, (3) the trial court abused its discretion by admitting evidence that he kicked his former attorney, (4) defense counsel had a conflict of interest, (5) the prosecution's expert witness improperly testified that Hayes's version of events was not believable, (6) the trial court gave conflicting oral and written instructions to the jury in count 2 for assault with an assault weapon, (7) the instruction on assault with a deadly weapon in count 3 included an invalid legal theory, (8) the trial court abused its discretion by denying his motion to substitute counsel, (9) counsel rendered ineffective assistance by failing to present all mitigating factors at sentencing, (10) counsel rendered ineffective assistance by failing to properly inform the trial court that it had discretion to impose the sentence in count 15 concurrently, (11) counsel rendered ineffective assistance by making an oral, rather than written, Romero motion, and (12) the cause should be remanded to allow the trial court to determine whether to exercise its discretion to strike the five-year prior conviction enhancement under section 667, subdivision (a). Hayes requests an evidentiary hearing on the violation of his Sixth Amendment right to self-representation, conflict-free and effective assistance of counsel, and due process. In supplemental briefing, Hayes further argues that the matter should be remanded to the trial court to strike the one-year prior felony conviction enhancements under 667.5, subdivision (b), in light of recently enacted Senate Bill No. 136 (Senate Bill No. 136) (Sen. Bill No. 136 (2019-2020 Reg. Sess.) § 1), which modified subdivision (b) such that the enhancement now applies only when the prior conviction was for a sexually violent felony.

Alvarez v Lifetouch Portrait Studios

Summary adjudication of Alvarez's age harassment claim was also proper. Alvarez forfeited her claim of harassment based on age by failing to argue it in her opposition to Lifetouch's motion for summary judgment. (Venice Coalition to Preserve Unique Community Character v. City of Los Angeles (2019) 31 Cal.App.5th 42, 54 [party forfeited issue by failing to "include the underlying facts to support [the] allegation in their separate statement of facts opposing summary judgment"]; LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977, 983 [Concluding in affirming grant of summary judgment, "Appellant is not entitled to raise for the first time on appeal a theory that involves a controverted factual situation not put in issue below."].) Even if Alvarez had not forfeited this claim, it fails because the asserted behavior was not severe or pervasive. Marino's single age-related statement at a manager's meeting to those in attendance that Alvarez and another long-time Lifetouch employee had "over a half century with the company" between them, even if taken in the worst light, does not rise to the level of harassment, and there is no evidence any other conduct by Marino was motivated by Alvarez's age. Though Alvarez relies on her general testimony that four over-40-year-old Lifetouch workers were terminated after injury-related complaints, Alvarez does not identify any harassing conduct involved in those cases, nor does she aver that Marino was involved in those employment actions. G. Alvarez Raised a Triable Issue Whether Lifetouch Interfered with Her CFRA Rights

People v Nieber

Finally, even if the trial court had erred by allowing Detective Norris to identify Nieber as the individual in the surveillance video, we would also conclude that any such error was harmless under any standard. (See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) [constitutional error is harmless if it is proven beyond a reasonable doubt that the error did not contribute to jury verdict]; People v. Watson (1956) 46 Cal.2d 818, 836 [error is harmless unless appellant shows there is a reasonable probability of a more favorable result absent the error].) First and foremost, Detective Josse testified that he was involved in the arrest of Nieber on May 16 and separately identified Nieber as the individual depicted in the same still frame photograph from the surveillance tapes. Nieber's counsel did not object to that identification at trial or on appeal and, thus, the jury could have relied on it instead. Further, as discussed, the entire video and the still frame photograph at issue were entered into evidence and an identifying tattoo on Nieber's neck was visible in the video, such that the jurors could independently view the photos and video to make their own determination. Indeed, the prosecutor encouraged the jurors to do just that during closing arguments, relying on the tattoo on Nieber's neck, and not Detective Norris's testimony, to conclude the individual shown in the video was Nieber. Thus, we are confident the jurors would have reached the same conclusion even absent Detective Norris's identification of Nieber in the video.

People v Davis

Cardella's testimony concerning the urine screening, defendant's statements to jail "providers" that he was on methamphetamine at the time of he committed the offenses, his testimony about defendant's vital signs, and his testimony about statements defendant made to law enforcement may have bolstered the prosecution's case by showing that the mental disorder he suffered was drug induced, and thus did not qualify for an insanity finding. However, based on defendant's anemic attempt to meet his burden of proof and the prosecution's strong showing in its case based on Cardella's testimony that defendant did not suffer from a qualifying mental disease or defect and Cardella's and Ramos's testimony concerning statements defendant made directly to them, it is not reasonably probable that the jury would have reached a different result if the jury did not hear the hearsay testimony. Contrary to defendant's implication, it cannot be maintained that, absent the objectionable testimony, Cardella's remaining testimony concerning the bases for his opinion was conclusory and therefore of no assistance to the jury. (See generally Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117 ["when an expert's opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because an 'expert opinion is worth no more than the reasons upon which it rests' "].) Indeed, Cardella was entitled to rely on those matters that are the subject of the hearsay testimony. He simply should not have been permitted to describe these matters to the jury as he did, without satisfying applicable hearsay rules. (Sanchez, supra, 63 Cal.4th at pp. 685-686 [an "expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so," but may not "present[], as fact, case-specific hearsay that does not otherwise fall under a statutory ...

People v Lopez 2

Unlike in Wiidanen and McGehee, defendant's false statements here were not woven into a self-protective narrative or course of conduct that was crafted to deceive, but the facts before the jury reasonably indicated defendant's denials were not random, incoherent words of someone who was too intoxicated to know or understand their falsity. Following his two statements denying any wrongdoing, defendant made the statements "It was me"; "I don't give a f---"; F--- those mutts"; and "f-----g bullfrogs." The facts before the jury tended to show defendant's actions toward his victims were in response to what he believed to be a rival gang encounter or a gang insult impinging on the respect he was due. Defendant's reference to "mutts" and "bullfrogs" along with the statement, "It was me" could be reasonably interpreted as referencing his assault of Joey and his mistaken belief that Joey had called him a "dog" as a sign of disrespect to which he retaliated by putting a gun to her head and pulling the trigger. Defendant also made a statement in the patrol car about the mother of his child that, standing alone, might have seemed like a non sequitur, but defendant testified at trial he had had an argument with her earlier that day; his statement about her in the patrol car was reasonably a reference to their argument and, as such, was another indication defendant remembered and was fully aware of the events of the day despite his intoxication. Defendant also recognized and understood he was being arrested—Deputy Gauthier testified he said, "Just take me to county. I want to get to my bunk." In other words, viewing his statements in total, it could be reasonably inferred defendant knew what he had done, and his initial denial of any wrongdoing was knowingly false and tended to indicate his consciousness of guilt. As such, the consciousness of guilt permissive inference was reasonable "in light of the proven facts before the jury," and there was no due process violation. (Franci...

City of Huntington Beach v Becerra

In Seal Beach, supra , 36 Cal.3d at page 600, 205 Cal.Rptr. 794, 685 P.2d 1145, the California Supreme Court expressly rejected the notion that municipal affairs identified in Section 5 (b) can never be subject to state regulation. The issue in Seal Beach was whether a charter city must comply with the " ‘meet-and-confer’ " requirement of Government Code section 3505 before the city can propose an amendment to its charter concerning the terms and conditions of public employment. ( Seal Beach, supra , 36 Cal.3d at p. 594, 205 Cal.Rptr. 794, 685 P.2d 1145.) Plaintiff relators in that case challenged a city charter amendment requiring the immediate firing of any city employee who participated in a strike as being in violation of Government Code section 3505. ( Seal Beach, supra , at pp. 594-595, 205 Cal.Rptr. 794, 685 P.2d 1145.) The defendant charter city contended the MMBA violated its absolute right under Section 5 (b) to regulate the city police force and provide the manner in which city employees may be compensated and removed. ( Seal Beach, supra , at pp. 599-600, 205 Cal.Rptr. 794, 685 P.2d 1145.) The California Supreme Court rejected the defendant charter city's argument and held Government Code section 3505 applied to the defendant charter city. After quoting Section 5(b)(4), the court stated: "What grant of power could sound more absolute? Yet in an unbroken series of public employee cases, starting with Professional Fire Fighters ... and ending for the time being with Baggett ..., it has been held that a ‘general law prevails over local enactments of a chartered city, even in regard to matters which would otherwise be deemed to be strictly municipal affairs, where the subject matter of the general law is of statewide concern.’ [Citation.] Fair labor practices, uniform throughout the state, are a matter ‘of the same statewide concern as workmen's compensation, liability of municipalities for tort, perfecting and filing of claims, and the requirement to subsc...

People v Robbins

More recently, the Fifth District Court of Appeal reached a different conclusion in People v. Tirado (2019) 38 Cal.App.5th 637 (Tirado), review granted November 13, 2019, S257658. The Tirado court grounded its analysis in statutory construction and legislative intent: "Nothing in the plain language of sections 1385 and 12022.53, subdivision (h) authorizes a trial court to substitute one enhancement for another. Section 12022.53, subdivision (h) uses the verbs 'strike' and 'dismiss,' and section 1385, subdivision (a) states the court may 'order an action to be dismissed.' This language indicates the court's power pursuant to these sections is binary: The court can choose to dismiss a charge or enhancement in the interest of justice, or it can choose to take no action. There is nothing in either statute that conveys the power to change, modify, or substitute a charge or enhancement." (Id. at p. 643, italics added.) "Had the Legislature intended to grant the trial court the power to modify or reduce a firearm enhancement, it would have done so with express language," as it has done in other contexts. (Ibid.; see, e.g., § 1181, subd. (6) [in ruling on a motion for new trial, "if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial"], italics added; § 1260 [granting appellate courts the power to "modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense"], italics added.)

Episcopal Church in Diocese of California v Episcopal Senior Cmties

The Church Entities argue that the limitations period was tolled by wrongful concealment at the March 2007 meeting about the restructuring of ESC and SRW There, according to the Church Entities, Gerber and Tobin concealed from them that SRW's original bylaws stated that SRW was organized to be a Diocesan Institution and that this would not be the case under the restructuring. The trial court found that Gerber and Tobin did not conceal any information from the Church Entities about the history of SRW, a finding that is supported by substantial evidence. Tobin testified that he did not discuss the history of SRW at the March 2007 meeting with Bishop Andrus and the Chancellor, because he "believed there was a common understanding of what [SRW] was." Tobin testified that he had no motivation to deceive anyone about the history of SRW, because if there had been any objection to the restructuring proposal, ESC could have proceeded with the restructuring by creating a new entity to be its member; the only reason for selecting SRW was to save the modest cost of forming a new corporation and the administrative burden of a new corporation applying for tax exempt status, which at that time took about a year. Gerber testified that at the time of the March 2007 meeting, he understood SRW to be "a defunct organization," which held "a meeting once a year for five minutes" to approve an audit. As far as he knew, SRW was simply a shell corporation. Substantial evidence supports the trial court's finding that, to the extent Bishop Andrus or the Chancellor or Tornquist, as the Bishop's representative on the ESC board, was unaware of SRW's history, the relevant information was available to them in the SRW bylaws and the records of the Diocese. Accordingly, we see no abuse of discretion in the trial court's finding that Gerber and Tobin did not hide information about the history of SRW from the Church Entities.

California Valley Miwok Tribe v California Gambling Control Commission

Numerous courts have imposed sanctions on appellants who unreasonably fail to acknowledge that an appeal is barred by res judicata. (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 194 ["Given the numerous independent grounds rendering this appeal frivolous including, among others, res judicata, . . . we have no difficulty in concluding that Appellants and their counsel objectively and subjectively understood their appeal was frivolous when filed."]; Weber v. Willard (1989) 207 Cal.App.3d 1006, 1010 ["The superior court's finding of res judicata is proper, and no reasonable attorney would contend, as does appellant, that the final federal judgment should be ignored merely because state courts have jurisdiction to entertain federal civil rights suits. Appellant's nonsensical interpretation of res judicata is a frivolous ground for his appeal, making the appeal totally and completely without merit."]; Henry v. Clifford (1995) 32 Cal.App.4th 315, 324 [plaintiff's case clearly lacked merit because of res judicata from a prior lawsuit, and the appeal from the trial court's sustaining demurrer on res judicata and statute of limitations was frivolous]; Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1432 [rejection of plaintiff's identical arguments in an appeal in a prior lawsuit against the same defendant, rendered repeated assertion of the same arguments frivolous, especially when the same attorney represented plaintiff in both actions].) After reviewing the record and the applicable law, and considering the argument of counsel, we conclude by clear and convincing evidence (San Bernardino Community Hospital v. Meeks (1986) 187 Cal.App.3d 457, 470), that "any reasonable attorney would agree that the appeal is totally and completely without merit" because this action is clearly barred by res judicata. (Flaherty, supra, 31 Cal.3d at p. 650.) Plaintiffs' arguments on appeal are not "supported by a careful reading of the record or the law nor could thes...

People v Escobar

Escobar did not raise this issue. However, Escobar and Gutierrez attempt to join one another's claims, including those for which they failed to provide any argument. The Supreme Court disapproves of this tactic. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363.) "Purporting to join in a claim when no colorable argument can be made that the claim is applicable and preserved is akin to raising a frivolous claim in the first instance." If an appellant's brief does not provide legal argument and citation to authority on each point raised, the court may treat it as waived. (Ibid.) We would reject any claim on this issue, even if Escobar had raised it. Escobar assisted in the commission of the attempted murders by driving his fellow gang member, Gutierrez, to the location, stopping close to the victims. He demonstrated his knowledge of Gutierrez's intent to kill by remaining during the verbal confrontation of the victims. He further displayed his intent to assist in the attempted murders by remaining while Gutierrez fired eight shots at the victims. Finally, Escobar attempted to drive Gutierrez to safety, evading police officers who eventually apprehended them. These actions support Escobar's culpability as an aider and abettor in the attempted murders. (People v. Perez (2005) 35 Cal.4th 1219, 1225; People v. McCoy (2001) 25 Cal.4th 1111, 1117.)

Jensen v iShares Trust

Appellants argue that "[t]hrough the ICA, Congress found it necessary to provide broad standing to investors like plaintiffs who purchase after an amended registration statement because the amended registration statement involves the ‘continuous offering [of] shares of the same class." They point again to the different language employed in section 24(e) of the ICA and section 6(a) of the 1933 Act, the fact that registration forms under the 1933 Act (SEC Form S-1) require details about the securities offered therein, such as class and amount, that are not called for on registration forms under the ICA (SEC Form N-1A), and the fact SEC rules permitting registration of securities "for the shelf"—securities offered "to the public ‘on a continuous or delayed basis’ " ( Finkel v Stratton Corp. (2d Cir. 1992) 962 F.2d 169, 174 ; 17 C.F.R. § 230.415 ) use the "securities offered therein" language of section 6(a) with regard to post-effective amendments and annual reports rather than the "sold after" language of section 24(e). This argument is no more than a reiteration of appellants’ interpretation of section 24(e). That the SEC continued to use the "securities offered therein" language in rules pertaining to 1933 Act registration confirms the limitation giving rise to the tracing requirement under the 1933 Act. We fail to see how this further elucidates Congress’s intent regarding the language of section 24(e). In effect, appellants’ position is that, pursuant to section 24(e), each amendment to a registration statement becomes the operative registration statement for all shares issued pursuant to the original registration statement, including those shares issued prior to the allegedly defective amendment. A similar argument was rejected in Guenther v. Cooper Life Sciences, Inc. (N.D. Cal. 1990) 759 F.Supp. 1437 ( Guenther ). Although Guenther did not involve an investment company, it is of interest because it involved a shelf registration and therefore, as with an inves...

People v Rodriguez 1

The verdict forms did not prevent the jury from reaching a verdict of guilty of second degree murder. First, the verdict form for guilty of murder allowed the jury to enter the degree. Second, as previously discussed, the trial court properly instructed the jurors as to the different degrees of murder. It also instructed that in order to find Rodriguez guilty of second degree murder, they would need to find him not guilty of first degree murder. We presume the jurors were intelligent and capable of understanding and following all instructions. (People v. Carey (2007) 41 Cal.4th 109, 130.) Had the jury found Rodriguez guilty only of second degree murder, it would have indicated so on the not guilty verdict form, asked for a verdict form for not guilty of first degree murder, or sought other direction from the court. (People v. Osband (1996) 13 Cal.4th 622, 689-690.) The jurors never asked any questions about the degrees of murder or how to complete the verdict forms or noted that they were unable to reach a verdict. It is unmistakably clear that the jury intended to convict Rodriguez of first degree murder.

Bom v Superior Court

The absence of a special relationship between social workers and a child abuser that would give rise to a duty to control the child abuser is consistent with the rule that police officers ordinarily have no special relationship with individual members of the public and, therefore, "have no legal duty to control the conduct of others." ( Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 277, 80 Cal.Rptr.2d 196.) Although police officers "may" arrest a suspect when there is probable cause to believe the suspect has committed a felony ( Pen. Code, § 836, subd. (a) ), the decision to make the arrest is a matter within the officer’s discretion; he or she does not ordinarily owe a duty to anyone to do so. ( Michenfelder v. City of Torrance (1972) 28 Cal.App.3d 202, 206–207, 104 Cal.Rptr. 501 ; Tomlinson v. Pierce (1960) 178 Cal.App.2d 112, 116, 2 Cal.Rptr. 700 ; Chavira v. Chavez (C.D.Cal., Apr. 21, 2014, No. SACV 13-00890 JVS) 2014 WL 12576819 at p. *6.) To the extent a social worker could be viewed as having the ability to control a suspected child abuser at all—such as by taking the child into protective custody or initiating dependency proceedings—that ability is similarly discretionary. (See Welf. & Inst. Code, § 306, subd. (a) [social worker "may" take child into temporary protective custody when exigent circumstances exist]; Jacqueline T. v. Alameda County Child Protective Services (2007) 155 Cal.App.4th 456, 466, 66 Cal.Rptr.3d 157 [social workers’ actions relating to investigations of child abuse, removal of child from parents, and initiating dependency proceedings are discretionary]; Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 881, 271 Cal.Rptr. 513 [same].) Thus, just as "[c]ourts have refused to find a special relationship or impose liability based on the negligence by police personnel in responding to requests for assistance, in conducting or failing to conduct an investigation, in failing to warn of a potential danger or in failing to pr...

Tanguma v Law Offices of Les Zieve

First, we consider the alleged assignment by Quality of the promissory note to BNY. The FAC alleged that BNY was "the purported assignee" of the promissory note by reason of a document referred to as the "Allonge." Allegedly, the Allonge purports to be signed by Quality's assistant vice president, David Burroughs, but according to the FAC, it was not actually signed by Burroughs, or if it was, he did not have authority to assign or indorse the promissory note on behalf of Quality. Further, the Allonge was allegedly "a fraudulent 'robo-signed' document that was created by [a] person or persons unauthorized" for the purpose of enabling BNY or its agent "to fraudulently claim the right to foreclose on the Property and thereby deprive [plaintiff] of her interest therein." No factual basis is stated in the FAC to support the allegation that the signature was unauthorized or constituted a fraudulent robo-signature, which assertions were presented as bare conclusions. But even if more specific allegations had been made, they would only show at most a voidable transaction. In Mendoza, supra, 6 Cal.App.5th 802, the plaintiff had similarly alleged that a purported assignment of the deed of trust was void due to a fraudulent and unauthorized robo-signature. (Id. at pp. 805-806.) The Court of Appeal in Mendoza concluded, based on persuasive federal cases, that a robo-signed assignment is merely voidable, not void. (Id. at pp. 819-820; accord, Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 46 [robo-signed document voidable, not void]; Pratap v. Wells Fargo Bank, N.A. (N.D. Cal. 2014) 63 F.Supp.3d 1101, 1109 ["to the extent that an assignment was in fact robo-signed, it would be voidable, not void," at the injured party's (i.e., the bank's) option]; see also Cal. U. Com. Code, § 3403, subd. (a) [unauthorized signature is subject to ratification].) We agree with that conclusion. Consequently, since the alleged defect—even if true—would only ma...

Kalivas v Kern Community College District

Plaintiff appeals from the judgment in his favor on a cause of action that alleged his employment was terminated in violation of statutory provisions prohibiting retaliation against community college employees for disclosing conditions that significantly threaten the health or safety of employees or the public. (Ed. Code, § 87160 et seq.) The jury found in plaintiff's favor against two of the individual defendants and awarded damages. The trial court awarded attorney fees to plaintiff as the prevailing party. Plaintiff seeks reversal and remand for a new trial on the issue of damages; he challenges the trial court's failure to grant a nonsuit on the defense of failure to mitigate damages, the jury instructions on mitigation of damages, the admission of evidence that plaintiff's employment was at will, and the amount of attorney fees awarded. The two defendants against whom judgment was entered cross-appeal, challenging the denial of their motion for judgment notwithstanding the verdict. We conclude there was sufficient evidence to support the denial of defendants' motion for judgment notwithstanding the verdict. However, there was no substantial evidence of a failure by plaintiff to mitigate damages, so plaintiff's motion for nonsuit on that issue should have been granted and no jury instructions on mitigation should have been given. Because we conclude these instructions likely confused or misled the jury, we reverse the judgment and remand for a retrial of the issue of damages. Neither party has demonstrated any error in the liability determination; accordingly, we limit the retrial to the issue of damages only. The trial court must also redetermine the amount of attorney fees to award plaintiff.

Becerra v Superior Court

Finally, the Department contends that employing agencies "are in the best possible position to ensure that records regarding their own officers, investigations, prosecutions, or other actions are properly reviewed and redacted to remove sensitive, confidential information that subject officers and third parties to a risk of danger or unnecessary disclosure of confidential information." That may be so, but such a policy argument affords no ground for a judicial interpretation that shields responsive records in the Department’s possession, especially in light of statutory allowances for consultation with other agencies in processing CPRA requests. (See Gov. Code, § 6253, subd. (c)(3) [time for responding to requests may be extended where "need for consultation ... with another agency having substantial interest in the determination of the request" arises].) Our interpretation of the CPRA and section 832.7 not only promotes the purposes reflected in the statutory language and legislative history, it harmonizes with the constitutional principle that the people have a right to access information concerning the conduct of the people’s business and that restrictions on this right are narrowly construed. ( Cal. Const., art. I, § 3, subd. (b)(1)–(2).) Our construction also aligns with case law rejecting the notion that a record’s location, rather than its content, determines its confidentiality. In Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 64 Cal.Rptr.3d 661, 165 P.3d 462 ( CPOST ), a newspaper sought the release of information in a database collected by the Commission on Peace Officer Standards and Training, a state agency that sets minimum selection and training standards for peace officers. ( Id. at pp. 285–286, 64 Cal.Rptr.3d 661, 165 P.3d 462.) The database—which included employment data on all peace officers appointed in California starting in the 1970s—was compiled from information provided by local law enforcement agenc...

Serova v Sony Music Entertainment

In Rivero , the court surveyed a number of cases and identified three common elements in statements that concerned an issue of public interest. The statements concerned either: (1) a person or entity "in the public eye"; (2) conduct that "could directly affect a large number of people beyond the direct participants"; or (3) a "topic of widespread, public interest." ( Rivero, supra, 105 Cal.App.4th at p. 924, 130 Cal.Rptr.2d 81.) In Weinberg , the court offered additional analysis consistent with the categories in Rivero. Among other things, the court explained that public interest "does not equate with mere curiosity" and that a matter of public interest should be of concern to a substantial number of people rather than just to a "relatively small, specific audience." ( Weinberg , supra , 110 Cal.App.4th at p. 1132, 2 Cal.Rptr.3d 385.) In addition, a "person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people." ( Id. at pp. 1132–1133, 2 Cal.Rptr.3d 385.) The issue of public interest here is whether Michael Jackson was in fact the singer on the three Disputed Tracks. It is beyond dispute that Michael Jackson was a famous entertainer who was very much "in the public eye." ( Rivero, supra, 105 Cal.App.4th at p. 924, 130 Cal.Rptr.2d 81.) As the court stated in Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664, 105 Cal.Rptr.3d 98 ( Stewart ), " ‘ "there is a public interest which attaches to people who, by their accomplishments, mode of living, professional standing or calling, create a legitimate and widespread attention to their activities." ’ " ( Id. at pp. 677–678, 105 Cal.Rptr.3d 98, quoting Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 422, 198 Cal.Rptr. 342 ; see No Doubt v. Activision Publishing, Inc. (2011) 192 Cal.App.4th 1018, 1027, 122 Cal.Rptr.3d 397 [video game distributor’s use of band members’ likenesses in a video game was a "matter of public interest because of...

People v Wilmer

In denying defendant's Romero motion, the trial court stated: "The Court is constrained by statute and precedent in respect to exercising its discretion in striking a strike or striking both strikes, and whether the Court endorses the policy that was adopted by the [L]egislature and by the People is not of any relevance in this case. By saying that, I don't indicate whether I do or do not endorse that policy; I'm just saying that my obligation under the law is to follow the law. [¶] The People rather recently revisited the sentencing scheme known as Three Strikes and narrowed it so that it would focus on more serious offenders . . . . And [defendant]'s situation is what the People were looking at even when they narrowed it, and they said: We want to have Three Strikes (a) continue and (b) apply to people who have prior strikes and commit new serious or violent offenses, such as you have . . . . [¶] So what's presented here is a landscape in which the defendant has committed not one, but two new strike offenses, or two new serious offenses, and also have led a life of one serious crime after another. It is true that most of the . . . serious offenses you committed were when you were much younger, which is not unusual. And it did look like you may have come to the point upon your release from your most recent and longest stint in state prison that you might have turned your life around. [¶] But a situation presented -- and as I indicated, I totally disagree with and have struck the language that the Department of Probation had supplied in regard to this being a planned or sophisticated crime -- and you saw a vulnerable victim and you took advantage of that victim in committing the robbery. [¶] As robberies go, I agree with [defense counsel] that this is by no means the most aggravated that I've seen, but nonetheless it was a robbery, it was a serious crime, and it falls fully within the scope of the Three Strikes sentencing scheme. [¶] While it was not a planned thin...

People v Bonilla

In applying the hearsay rules articulated in Sanchez, appellate courts have grappled with whether a gang expert's reliance on hearsay involving specific facts about specific individuals, the details of which the expert in turn relates to the jury, should be considered case-specific. (See, e.g., Ochoa, supra, 7 Cal.App.5th at pp. 580-583; Blessett, supra, 22 Cal.App.5th at pp. 942-945, review granted.) This issue has arisen where an expert offers an opinion about whether predicate offenses, used to show a gang's pattern of criminal gang activity, were committed by members of that gang. In opining as to an individual's gang membership, experts often rely on specific facts such as whether the individual has gang tattoos, wears gang clothing, associates or is arrested with known gang members, makes hand signs associated with the gang, and/or self-admits to membership with a specific gang. These facts are akin to those illustrated by Sanchez as being case specific—i.e., the fact that an individual has a diamond tattooed on his arm. (Sanchez, supra, 63 Cal.4th at p. 677.) They are also facts relevant to prove a gang enhancement allegation charged against a defendant in the case. When an expert bases his opinion on these facts but lacks personal knowledge of them, at least one court has concluded that if the expert relates those hearsay facts to the jury to support his ultimate opinion about the individual's gang membership, such testimony constitutes case-specific hearsay in violation of Sanchez. (Ochoa, supra, at pp. 588-589.)

People v West

Defendant was charged with committing 13 felonies against the four victims: forcible oral copulation (Pen. Code, former § 288a, subd. (c)(2), counts one & four); carjacking (§ 215, subd. (a), count two); robbery (§ 211, counts three, seven, nine & thirteen); assault with intent to commit oral copulation (§ 220, counts five & eleven); assault with a deadly weapon (semiautomatic firearm) (§ 245, subd. (b), counts six and eight); kidnapping with intent to commit robbery and/or oral copulation (§ 209, subd. (b)(1), count ten); and attempted forcible oral copulation (§664/former § 288a, subd. (c)(2), count twelve). For counts one and four, it was alleged that defendant personally used a dangerous or deadly weapon during the offenses (§ 667.61, subd. (e)(3)). For counts one through five, seven, and nine, it was alleged defendant personally used a firearm during the offenses (§ 12022.53, subd. (b)). For counts four, five, seven, and nine, it was alleged that defendant personally and intentionally discharged a firearm during commission of the offenses (§ 12022.53, subd. (c)), and for counts six and eight, it was alleged that defendant personally used a semiautomatic firearm (§ 12022.5, subds. (a), (d)). The information also alleged that defendant had two prior serious felony convictions (§ 667, subd. (a)), which qualified as strikes (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)).

County of LA v State

In Board of Education v. Watson (1966) 63 Cal.2d 829 (Watson), the court upheld the constitutionality of legislation requiring only the Los Angeles County Assessor to provide revenue estimates to school districts within the county. The court pointed to the rate of growth in Los Angeles and the number of large school districts to reason that "the Legislature could have reasonably believed that the assistance of the assessor is more necessary in Los Angeles because the planning of budgets for numerous large school districts is a more complex matter and the effects of a miscalculation more serious than would be the case in the other counties of the state, which contain fewer large and more small school districts." (Id. at p. 836.) In addition, while other counties might have a faster growth rate than Los Angeles, the number of new students each year would still be greater in Los Angeles than other counties with higher rates of growth, creating a situation where it was more important for school districts in Los Angeles to be able to maximize their budgets. (Id. at pp. 836-837.) Pointing last to the fact that property in Los Angeles County had a far higher assessed valuation and much larger yearly growth, the court concluded, "We do not intend to hold that every classification based on population alone is proper, nor do we pass upon the wisdom of the legislative action, but when [the law under scrutiny] is viewed in the light of the additional factors set forth above we cannot say, as we would be required to do in order to hold it unconstitutional, that no state of facts can reasonably be conceived to justify the classification made." (Id. at p. 837.) As Division Two of this court explained in a subsequent case, "Legislation applicable solely to Los Angeles County is valid if there is any conceivable state of facts which can reasonably support difference in legislative treatment based on population." (City of Los Angeles v. City of Artesia (1977) 73 Cal.App.3d 450, 456 ...

Richards v Richards In re Marriage of Marie

Code of Civil Procedure section 473 and the Family Code statutory scheme (sections 2121 through 2123) "coexist, operating as alternative bases for relief, depending on when the application is filed." (In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 32 (Heggie).) "There is one interesting interaction between the two statutory schemes: [S]ection 2123 necessarily superimposes a per se rule on the trial court's discretion under [Code of Civil Procedure] section 473. Section 2123 is plain that where the only reason to set aside a judgment is that it was 'inequitable when made,' the trial court is affirmatively commanded not to set the judgment aside under 'any' law. Section 2123 reads: 'Notwithstanding any other provision of this chapter, or any other law, a judgment may not be set aside simply because the court finds that it was inequitable when made, nor simply because subsequent circumstances caused the division of assets or liabilities to become inequitable, or the support to become inadequate.' (Italics added.) Thus to whatever degree [Code of Civil Procedure] section 473 jurisprudence might have, prior to the enactment of the [Family Code statutory scheme], countenanced the setting aside of a family law judgment because it was somehow 'inequitable,' that discretion has now been expressly curtailed. [¶] Put another way, section 2123 represents a fixed legal principle that may not be substantively contravened by the trial court in considering a discretionary application for relief under section 473." (Heggie, supra, 99 Cal.App.4th at p. 33, fn. omitted.) Therefore, the court lacks authority to set aside a judgment simply because there is evidence one party benefits from a windfall, or "naked lopsidedness of the deal in hindsight" suddenly is revealed. (Id. at p. 36.)

Janya v S California Permanente Medical Group

In support of its motion, SCPMG submitted evidence that (1) Janya and Salloom were required to timely and accurately report their ventilator checks on their patients, but HealthConnect records show that each of them, on several occasions, entered two ventilator checks almost simultaneously, although the two checks purportedly were conducted two hours apart; (2) both Janya and Salloom blamed the nearly-simultaneous entries on a glitch in the HealthConnect system; (3) Bailey investigated the alleged glitch, tried to replicate it, and was told by a HealthConnect expert that it did not exist; (4) Janya, who was responsible for scheduling meal breaks for the respiratory therapists on his shift when he was lead therapist, allowed three therapists to take their meal break at the same time; (5) Bailey made the decision to terminate Janya's and Salloom's employment based upon the results of his investigation; (6) Bailey did not know about the 2014 wage and hour lawsuit until after Janya and Salloom were terminated; (7) Bailey did not terminate the employment of any other respiratory therapist who was a plaintiff in the 2014 wage and hour lawsuit; (8) Janya and Salloom each testified at his deposition that he never complained to Bailey about understaffing, and Bailey testified that he was not aware of any complaints from Janya or Salloom regarding understaffing; and (9) the statements the complaint alleged were defamatory were from Janya's and Salloom's termination notices, and neither plaintiff has any knowledge whether anyone who was not present at their meeting with Bailey ever saw the notices.

Community Venture Partners v Marin County Open Space District

CVP's complaints that current users will experience less recreational enjoyment due to "groups of speeding bikers," noise, or fear from bike accidents are similarly not concerns tied to the physical environment. Rather, they concern the subjective and psychological feelings of trail users towards other users. "CEQA does not require an analysis of subjective psychological feelings or social impacts." (Preserve Poway v. City of Poway (2016) 245 Cal.App.4th 560, 579 [the psychological and social impact on the community's character due to closure of a horse boarding facility and construction of homes was not a significant environmental effect requiring a new EIR]; accord Chico Advocates for a Responsible Economy v. City of Chico (2019) 40 Cal.App.5th 839 [no CEQA violation where EIR did not analyze a retail store expansion project's likely elimination of "close and convenient shopping" because such impact was psychological and social and had no significant effect on the environment].) Similar to a project allowing off-leash dog use on a state beach in Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, the effects of which CVP complains are purely social: "While evidence in the record suggests that recreational users vigorously disagree regarding the propriety of the dogs, leashed and unleashed, at the State Beach and that the presence of dogs may decrease the enjoyment of some visitors to the state park or deter others from visiting at all, these effects are essentially social." (Id. at p. 1206.) As appropriately noted by the District's amici curiae, CEQA does not require analysis of "the psychological or social impacts stemming solely from the prospect of sharing the trail with other users." (Guidelines, § 15131, subd. (a).) The trial court erred in concluding otherwise.

People v Gause Subia

Here, there was ample reason for the jury to reject defendant's theory that he was legally unconscious due to voluntary intoxication. Defendant's blood test results were consistent with chronic marijuana and methamphetamine use; the amount of methamphetamine in defendant's blood was less than that used to treat narcolepsy; and his blood alcohol content was below blackout level. There was also evidence that a person who had consumed alcohol, THC, and methamphetamine in the hours after the attack could have had the same blood test results as defendant. Officer Delfino testified that defendant was cooperative and appeared to understand what she was saying when she met with him a few hours after the offense. She did not remember defendant smelling of alcohol or note any signs of impairment. In addition, there was evidence that defendant had resentment and animosity toward both victims because they would not allow him to live in Margarita's home. Defendant used a knife to forcefully stab Margarita and Olivia in the head; nothing else in the house was disturbed in the attack and defendant left the residence and changed his clothes after the offense—all of which evinces that defendant had some awareness of his actions. Moreover, the trial court instructed the jury that the attorneys' remarks were not evidence, and we presume the jury followed the trial court's instructions. (People v. Bennett (2009) 45 Cal.4th at 577, 596.) Under the totality of the circumstances, we conclude there is no reasonable probability of a more favorable result for defendant absent the prosecutor's comments.

People v Porras

Moreover, the merger doctrine was not implicated because "[t]he natural and probable consequences doctrine operates independently of the second-degree felony murder rule" and "allows an aider and abettor to be convicted of murder, without malice, even where the target offense is not an inherently dangerous felony. [Citations.]" (People v. Culuko (2000) 78 Cal.App.4th 307, 322. (Culuko).) In People v. Francisco (1994) 22 Cal.App.4th 1180 (Francisco), the court rejected a challenge to a natural and probable consequences instruction and noted that the logical and legal impediments to liability in Ireland "are not applicable and do not have persuasive value with respect to limiting" liability for an aider and abettor. (Francisco, supra, at p. 1190.) When the appellant objected that the instruction allowed him to be found guilty without a finding that he shared the perpetrator's intent to kill, Francisco explained that "this is not the test for aider and abettor liability [under the natural and probable consequences doctrine]. Such liability is a question of legal causation which is independent of any intent that the result in question occurred. [Citation.] Thus, the ultimate factual question is whether the perpetrator's criminal act, upon which the aider and abettor's derivative criminal liability is based, was '"reasonably foreseeable"' or the probable and natural consequence of a criminal act encouraged or facilitated by the aider and abettor. [Citation.]" (Ibid.) People v. Karapetyan (2006) 140 Cal.App.4th 1172 (Karapetyan) rejected an argument that a "finding of murder based on aiding and abetting an assault is really just felony murder, which is barred by [Ireland]." (Karapetyan, supra, at p. 1178.) The court noted that "[t]he natural and probable consequences doctrine does not merge all assaults into the felony-murder rule. . . . For aider and abettor liability, it is the intention to further the acts of another that creates criminal liability and not the felony-...

People v Santana 1

Although the Supreme Court agreed that Quarles was in police custody when he was asked about the gun, the court concluded that "overriding considerations of public safety justif[ied] the officer's failure to provide Miranda warnings before he asked questions devoted to locating the abandoned weapon." (Quarles, supra, 467 U.S. at p. 651.) The court stated: "The police in this case, in the very act of apprehending a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket. So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it [or] a customer or employee might later come upon it." (Id. at p. 657.) It made clear that "the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination." (Ibid.) The court believed that "police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect." (Id. at pp. 658-659.)

McColl v City of Los Angeles

Critically, the Federico court drew the boundaries of this "limited duty" from the rule of direct employer liability set forth in the Restatement Second of Agency section 213—not from the special relationship doctrine that applies to entities, like the City, that have assumed a duty to protect minors in their care. As the Federico court explained, under the Restatement, an employer is liable for negligent hiring if " ' "the employer has not taken the care which a prudent man would take in selecting the person for the business in hand." ' " (Federico, supra, 59 Cal.App.4th at pp. 1213-1214, italics added.) Liability results under this limited duty " ' "not because of the relation of the parties but because the employer antecedently had reason to believe that an undue risk of harm would exist because of the employment." ' " (Id. at p. 1214, italics added, original italics omitted.) Because the employee's position "required him only to supervise adult students and perform administrative tasks for the hairstyling college," and "his prior convictions did not involve students or customers of the hairdressing establishments in which he was employed at the time the offenses were committed," the Federico court concluded the college's knowledge of the employee's past convictions "did not, as a matter of law, render the decision to hire or thereafter retain [the employee] unreasonable." (Id. at pp. 1214-1215.) That conclusion, while sound under the limited duty implicated, is plainly inconsistent with authorities that have imposed an affirmative duty to protect based on a defendant's special relationship to the minors in its care. (See, e.g., Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1855 [school district could be liable for failing to protect student if "employees responsible for hiring and/or supervising teachers knew or should have known of [teacher's] prior sexual misconduct toward students, and thus, that he posed a reasonably foreseeable risk o...

People v Vilayngeun

In January 2015, at which time the romantic relationship between K.E. and Bernard was over, K.E. contacted the district attorney's office with information about this case. K.E. had a prior juvenile adjudication for "grand theft person," and had been in custody since August 2013 on new charges following a preliminary hearing. On direct examination, K.E. testified she was facing 15 felony charges, including residential burglary, carjacking, robbery with a firearm, false imprisonment, kidnapping, and three sexual offenses. During cross-examination, K.E. detailed that she was charged with (1) first degree residential burglary in which it was alleged there were people in the house at the time of burglary and K.E. had or personally used a firearm; (2) first degree residential robbery in which she used a firearm; (3) kidnapping for robbery in which she used a firearm; (4) residential robbery in which she used a firearm; (5) "another kidnapping for robbery and another use enhancement[];" (6) attempted forcible oral copulation during which she personally used a firearm; (7) attempted forcible rape with the "use of a handgun;" and (8) "another robbery" and "a carjacking." K.E.'s charges had not been resolved, and while she was not sure the charges were "enough to keep [her] for the rest of [her] life," she knew she was facing "quite a lot of time," and she was 22 and did not want to go to prison. While no one from the district attorney's office made any promises to her in exchange for her trial testimony, she confirmed there was "a possibility" that she would get something for her testimony, but her motive for coming forward was that she "just want[ed] to do the right thing." She had been told that if she testified at defendant's trial something "could possibly happen;" when asked if it would be "something good for you," she replied, "possibly"; when asked if it could be something that could "[g]et [her] out from underneath some of these charges," she replied, "possibly." Wh...

People v Cosinero

Notably, the statutes authorizing $10,454 of the $10,874—about 96 percent—of the assessments, fees, and fines Cosinero now challenges authorized the trial court to consider his ability to pay. First, by imposing a restitution fine of $10,000 under section 1202.4, the trial court exceeded the $300 minimum fine, thereby authorizing the court to "consider[]" Cosinero's "[i]nability to pay." (§ 1202.4, subd. (c).) Second, because Cosinero was convicted of a qualifying sex offense, section 290.3 required that he "be punished by a fine of three hundred dollars ($300) . . . unless the court determines that the defendant does not have the ability to pay the fine." (Italics added.) Finally, the statutes authorizing the trial court to impose the $154 criminal justice administrative fee expressly authorized the court to consider Cosinero's ability to pay the fee. (Gov. Code, § 29550.2 ["If the person has the ability to pay, a judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person," italics added]; id., § 29550, subd. (d)(2) ["The court shall, as a condition of probation, order the convicted person, based on his or her ability to pay, to reimburse the county for the criminal justice administrative fee," italics added.].)

People v Scott

There is nothing in the statutory language that indicates that the Legislature did not intend to extend the potential benefits of section 1001.36 as broadly as possible, including to all defendants whose judgments are not final. Although the statute refers to "pretrial diversion," (italics added) which is defined to mean the postponement of prosecution at any point during the judicial proceeding, from accusation to adjudication (id., subd. (c)), we do not interpret the reference to "pretrial diversion" as being a sufficiently clear statement that the Legislature intended for the statute to apply only prospectively. (See People v. Dehoyos (2018) 4 Cal.5th 594, 600 [" '[A]n amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute's effective date' [citations], unless the enacting body 'clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent' "].) Rather, as the Frahs court explained, "The fact that mental health diversion is available only up until the time that a defendant's case is 'adjudicated' is simply how this particular diversion program is ordinarily designed to operate. Indeed, the fact that a juvenile transfer hearing under Proposition 57 ordinarily occurs prior to the attachment of jeopardy, did not prevent the Supreme Court in Lara, supra, 4 Cal.5th 299, from finding that such a hearing must be made available to all defendants whose convictions are not yet final on appeal." (Frahs, supra, 27 Cal.App.5th at p. 791; but see, e.g., People v. Craine (2019) 35 Cal.App.5th 744 (Craine), review granted Sept. 11, 2019, S256671 [disagreeing with Frahs and concluding that the fact that "pretrial diversion is literally and functionally impossible once a defendant has been tried, found guilty, and sentenced," constitutes "a clear indication the Legislature did not intend for section 1001.36 to be applied retroacti...

Wilmot v First American Title

There is evidence First American had no company-wide policy guidance regarding the charging of particular fees during the class period. Rather, the decision to charge a fee in a given escrow transaction was made by the escrow agent involved, perhaps with some supervisorial input, on a transaction-specific basis. Thus, when entering fees into the FAST system prior to 2007, the terminology used could vary depending on the person entering the data and whether a certain term was familiar to the parties to the transaction. Though Wilmot interprets this to mean the language used to identify a fee might vary slightly, that is not the only reasonable inference one could draw. To the contrary, the evidence permits an inference that the individual entering fee into First American's system could choose to call it a "loan tie-in" fee, or could choose to use an entirely different label for the fee, like "concurrent junior mortgage escrow." There is also evidence that escrow officers often used the terms "loan tie-in" and "concurrent junior escrow" to refer to the same services and that First American had filed rates for the concurrent junior mortgage escrow, document preparation, and electronic document download fees during part of the class period. Based on this evidence, there is adequate support for the trial court's conclusion that a case-by-case manual file review would be necessary in some cases to determine whether a First American customer had actually been charged an unfiled loan tie-in fee rather than a properly filed fee. In other words, in the hundreds if not thousands of cases where it is possible the "loan tie-in" fee label for a charge to a First American customer was mistakenly applied, substantial evidence supports the trial court's determination that class-wide adjudication would be unmanageable.

People v Turner

" 'In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.] We do not reweigh evidence or reevaluate a witness's credibility. [Citation.]' " (People v. Nelson (2011) 51 Cal.4th 198, 210.) "If we determine that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, the due process clause of the United States Constitution is satisfied [citation], as is the due process clause of article I, section 15 of the California Constitution." (People v. Osband (1996) 13 Cal.4th 622, 690.)

People v Silver

The trial court admitted evidence of the three Elk burglaries and the Carsey truck theft as relevant to a common plan or scheme—not a common plan encompassing Boardman's murder, but a common plan to enter Boardman's house. Ordinarily uncharged misconduct evidence is admitted to prove a common scheme or plan where the charged offense is a manifestation of the common plan. Thus, the "motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident" referred to in section 1101, subdivision (b) most often refers to the motive, opportunity, intent, etc. in committing the charged offense. But the list of issues in the statute upon which such evidence may be admitted is not exclusive. (People v. Catlin (2001) 26 Cal.4th 81, 146.) "[U]ncharged misconduct . . . may be used to prove any disputed fact other than propensity to commit the charged crime . . . . The categories set out in Evid C § 1101(b) are merely illustrative." (2 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 4th ed. 2019) Other Disputed Facts, § 35.27, p. 35-19, italics added; see also People v. Spector (2011) 194 Cal.App.4th 1335, 1373; People v. Montalvo (1971) 4 Cal.3d 328, 331-332 ["Although evidence of prior offenses may not be introduced solely to prove criminal disposition or propensity such evidence may properly be admitted whenever it tends logically, naturally, and by reasonable inference to establish any fact material for the People or to overcome any material matter sought to be proved by the defense." (Italics added.)].)

State Water Resources Control Board v Baldwin and Sons

The trial court correctly recognized that the subpoenaed Financial Documents are relevant to assessing the economic benefit derived from the alleged violations. Challenging the relevance of the requested financial information, Appellants point to the "objective" definition of "avoided costs" associated with the State Board's consideration of economic benefits of the violation, and argue that their finances have no bearing on this issue. They contend, for example, that the State Board can determine how much it would have cost to implement certain control measures (if the alleged violation involves the failure to implement best management practices), and that the State Board does not need to know anything about Appellants' "actual costs or finances" to make such determinations. We reject Appellants' narrow interpretation of relevance for purposes of this investigative subpoena enforcement proceeding. The statute does not define the terms "economic benefit or savings," or "economic benefits." (See Wat. Code, § 13385, subd. (e).) Although the State Board's enforcement policy defines "avoided costs" and "delayed costs" in a manner that may be ascertained by reference to "objective" criteria (see fn. 12, ante ), the policy also more broadly refers to the State Board's consideration of "any other economic benefits" gained by the discharger. We therefore reject Appellants' position that only "objective" costs need be considered by the State Board as unduly restrictive and inconsistent with the statutory liability scheme. We also reject Appellants' argument that, because inability to pay is a defense to the imposition of civil liability and a factor used to mitigate or reduce the penalty amount, their financial information is not relevant at this investigative stage. Appellants contend their financial information only becomes relevant if they choose to assert an inability to pay defense to challenge the proposed ACL complaint and recommended penalty amount, and they further...

Sutton Place of Santa Clara County Owners Association v Queen

Similarly, the appellate court's analysis in Baker does not preclude us from finding North Bay should be included within the protection of section 337.15. The plaintiff in Baker filed suit against the building's architect and general contractor, as well as against the installer, and manufacturers/suppliers of allegedly defective heating and air-conditioning units. (Baker, supra, 133 Cal.App.3d at p. 750.) The Court of Appeal agreed with the trial court that section 337.1 did not apply to the manufacturers of the units because they were not "improvers of real property within the meaning of the statute." (Id. at p. 752.) "A manufacturer of goods ultimately installed in an improvement to real property cannot avail himself of the protections of [section 337.1]. In enacting the statute, the Legislature clearly intended to protect contractors, who are in the business of constructing improvements and must devote their capital to that purpose, from never-ending liability. [Citation.] The statute by its language limits the action to persons 'performing or furnishing the design, specifications, surveying, planning, supervision or observation of construction or construction of an improvement to real property.' This language does not include the manufacturing or supplying of products which are installed in the improvement." (Id. at pp. 756-757, italics omitted.) Citing, Sevilla, supra, 101 Cal.App.3d at p. 611, the court stated, "The policy of protecting the public from dangerous and defective products and the effect on that policy of the protection provided by the Legislature to some groups as discussed in Sevilla must be examined in each situation: [fn. omitted] The manufacturing of a 'unit' to heat or cool is the function of providing a product; there is no indication such a function was intended to be within the protective blanket of the statute." (Baker, at pp. 757-758.) The Baker court's opinion did not specify whether the manufacturers/suppliers of the heating and air c...

Sparber v Annen

If Sparber had wanted to put that transaction on hold before the sale occurred, he could have requested a stay of the decree in the trial court, or could he have asked this court to exercise its discretion to issue a writ of supersedeas to stay the underlying action. (See Veyna, supra, 170 Cal.App.4th at pp.156-157 [appellate court acknowledged its ability to issue writ of supersedeas but declined to exercise discretion to issue requested relief because party seeking writ "could have at any time applied to the trial court for relief" in the form of a stay of execution of the alternative decree]; see also People ex rel. San Francisco Bay Conservation & Development Com. v. Emeryville (1968) 69 Cal.2d 533, 537 [" '[I]n aid of their appellate jurisdiction the courts will grant supersedeas in appeals where to deny a stay would deprive the appellant of the benefit of a reversal of the judgment against him, provided, of course, that a proper showing is made' "].) Sparber made no effort to seek a stay of the execution of the alternative decree. Because his appeal from the alternative decree did not trigger an automatic stay, and because he sold his shares to Annen pursuant to the terms of the decree, Sparber is simply incorrect that he retains some interest in SAMG as a result of his appeal from the alternative decree. Sparber's failure to obtain a stay, and his subsequent sale of his shares to Annen pursuant to the decree, also entirely undermine Sparber's second contention that he somehow holds a "beneficial interest" in the SAMG shares by virtue of his appeal from the alternative decree. Again, Sparber had available to him at least two methods by which he could have sought to prevent having to sell his shares to Annen while he pursued this appeal (request a stay in the trial court or ask the appellate court to exercise discretion to issue a writ of supersedeas), but he did not attempt to utilize either process. Given this, we also conclude that the equities do not weigh...

Borges v Advanced Specialty Care

In Cummins v. Future Nissan (2005) 128 Cal.App.4th 321, the court rejected the assertion that a party whose participation in arbitration was court-ordered could not be found to have impliedly waived any unstated objections to the proceeding: "The 'bright line' for application of forfeiture does not lie between those who voluntarily invoke the arbitration process and those who are dragged to the table against their will. The forfeiture rule exists to avoid the waste of scarce dispute resolution resources, and to thwart game-playing litigants who would conceal an ace up their sleeves for use in the event of an adverse outcome. The proper criterion for dividing the sheep from the goats (Matthew 25:32) is a litigant's knowledge of a defense to the jurisdiction of the arbitrator. Those who are aware of a basis for finding the arbitration process invalid must raise it at the outset or as soon as they learn of it so that prompt judicial resolution may take place before wasting the time of the adjudicator(s) and the parties. If a trial court compels arbitration nonetheless, the party resisting arbitration may seek review of the ruling on appeal from an order that confirms the award. [Citation.] If the arbitration process is found to be invalid, the responsibility for a waste of resources would then lie with the trial court, not the litigant, and there has not been any hidden trump card. On the other side of the line, a party who knowingly participates in the arbitration process without disclosing a ground for declaring it invalid is properly cast into the outer darkness of forfeiture." (Id. at pp. 328-329, fns. omitted.)



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