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California Courts of Appeal | Top Cases | June 2020

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State Compensation Insurance Fund v Readylink Healthcare

A review of ReadyLink Healthcare, supra , 210 Cal.App.4th 1166, 148 Cal.Rptr.3d 881, further demonstrates that the issues that remain to be decided in this collection action were not previously considered, let alone decided, in the appellate review from the writ proceeding. The appellate court in ReadyLink Healthcare addressed ReadyLink's four claims of error: (1) whether the trial court applied the correct standard of review in assessing ReadyLink's petition for a writ of administrative mandamus ( id. at p. 1172, 148 Cal.Rptr.3d 881 ); (2) whether the Insurance Commissioner's decision was preempted by federal law ( id. at p. 1173, 148 Cal.Rptr.3d 881 ); (3) whether the Insurance Commissioner's decision constituted a "new regulation" that required a public hearing and opportunity to comment under Insurance Code section 11750, subdivision (b) ( ReadyLink Healthcare , supra , at pp. 1177–1178, 148 Cal.Rptr.3d 881 ); and (4) whether equitable considerations, including arguments that the Insurance Commissioner's decision constituted a new regulation, that "ReadyLink's recordkeeping practices were based on the advice of payroll and legal experts and passed muster with the IRS," and that "SCIF's prior audits had excluded the same per diem payments from ReadyLink's payroll," required that the administrative decision not be applied to include the per diem payments as payroll for purposes of determining ReadyLink's premium for the 2005 policy year ( id. at p. 1179, 148 Cal.Rptr.3d 881 ). None of these issues involves the question of the "amount" of premium "owed." Nor do these issues address the factual questions raised by ReadyLink's first amended answer, such as whether SCIF knew about ReadyLink's per diem payment structure before ReadyLink purchased insurance through SCIF, whether SCIF affirmatively represented to ReadyLink that its premiums would be calculated based on that per diem payment structure, or whether ReadyLink reasonably relied on such representations, if ...

Golden Door Properties v County of San Diego

Citing Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, 124 Cal.Rptr.3d 755 ( Oakland Heritage ), the County contends that M-GHG-1 is "similar to mitigation measures upheld by courts that require plans or purchasing of offsets subject to review and approval by an agency official." In Oakland Heritage , the appellate court upheld a mitigation measure deferring site-specific earthquake mitigation measures. However, the EIR in Oakland Heritage required the developer to submit a design level investigation for each parcel that would "be in accordance with applicable City ordinances and policies and consistent with the most recent version of the California Building Code, which requires structural design that can accommodate ground accelerations expected from known active faults." ( Id. at p. 889, 124 Cal.Rptr.3d 755.) The EIR also required that the design level investigation would be reviewed by a structural engineer, a registered geotechnical engineer, and submitted to "the City Building Services Division ... ‘to ensure compliance with the applicable requirements of the geotechnical investigation as well as other applicable code requirements.’ " ( Id. at p. 894, 124 Cal.Rptr.3d 755.) The EIR further contained "an extensive discussion of the mandates of various state and [c]ity laws bearing upon seismic safety, including the Seismic Hazards Mapping Act [citation], the Building Code ..., and various City ordinances." ( Id. at p. 892, 124 Cal.Rptr.3d 755.) The EIR concluded that " ‘[c]onsidering the rigorous investigation process required under the engineering standard of care, compliance with state laws and local ordinances, and regulatory agency technical reviews, the mitigation measures ... will reduce the risk of seismic hazards and ensure that impacts associated with development [of the] ... Project area would remain less than significant.’ " ( Id. at p. 910, 124 Cal.Rptr.3d 755.)

In re Delta Stewardship Council Cases

CERTIFIED FOR PARTIAL PUBLICATION (JCCP No. 4758; Sacramento Super. Ct. case Nos. 34-2013-80001500, 34-2013-80001530, 34-2013-80001534; San Francisco Super. Ct. case Nos. CPF-13-513047; CPF-13-513048, CPF-13-513049.) ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT] APPEAL from a judgment of the Superior Court of Sacramento County, Michael P. Kenny, Judge. Affirmed in part and reversed in part. Best Best & Krieger, Charity Schiller, Stefanie Morris, Jennifer Lynch for Plaintiffs and Appellants State Water Contractors, Alameda County Flood Control and Water Conservation District Zone 7, and San Bernardino Valley Municipal Water District. Marcia L. Scully, Adam C. Kear, Robert C. Horton, and Stefanie Morris for Plaintiff and Appellant The Metropolitan Water District of Southern California. Brunick, McElhaney & Kennedy, William J. Brunick, and Leland McElhaney for Plaintiffs and Appellants Mojave Water Agency and Antelope Valley-East Kern Water Agency. Stanly T. Yamamoto, District Counsel, and Anthony T. Fulcher, Assistant District Counsel for Plaintiff and Appellant Santa Clara Valley Water District. Kronick, Moskovitz, Tiedemann & Girard, Daniel J. O'Hanlon, Rebecca Harms, and Carissa M. Beecham for Plaintiffs and Appellants San Luis & Delta-Mendota Water Authority and Westlands Water District. Pioneer Law Group, Andrea A. Matarazzo; and Jon D. Rubin, General Counsel for Plaintiff and Appellant Westlands Water District. Rebecca R. Akroyd, General Counsel for Plaintiff and Appellant San Luis & Delta-Mendota Water Authority. Freeman Firm, Thomas H. Keeling; Law Office of John H. Herrick, John H. Herrick; Mohan, Harris, Ruiz, Wortmann, Perisho & Rubino, S. Dean Ruiz; Nomellini, Grilli & McDaniel, Dante John Nomellini, Dante John Nomellini, Jr., and Daniel A. McDaniel for Plaintiffs and Appellants Central Delta Water Agency, South Delta Water Agency, Lafayette Ranch, Inc., and Cindy Charles. Michael B. Jackson for Plaintiffs and Appellants Calif...

Roche v Hyde

Hyde attempts to distinguish these cases on the ground that they do not apply because, under the defendants’ narrow reading of Wittenbrock , supra , 102 Cal. 93, 36 P. 374, "clear and satisfactory proof" that Hardy or John had actual knowledge of the Boudreau Report is lacking. But as we have explained, that reading of Wittenbrock is incorrect. In his reply brief and on petition for rehearing, Hyde adds the argument that only if there is such a complete identity of common ownership between JHP Land I and JHP Land II as to justify veil piercing under the alter ego doctrine could there be imputation to JHP Land II. This, too, is incorrect. Not only does he miscite the principal alter ego case he relies upon ( CADC/RADC Venture 2011-1 LLC v. Bradley (2015) 235 Cal.App.4th 775, 185 Cal.Rptr.3d 684 ), erroneously claiming it stands for the proposition that there must be "common ownership" before that doctrine will apply ( id . at p. 789, 185 Cal.Rptr.3d 684 [no veil piercing where alleged alter ego owners had no "direct ownership" in corporate entity through which they borrowed money] ), but alter ego is the wrong frame of reference in any event. Roche has ample grounds to argue there is no legally cognizable difference between JHP Land I and JHP Land II under the doctrine of corporate successor liability. (See Cleveland v. Johnson (2012) 209 Cal.App.4th 1315, 1319, 1322, 1328, 147 Cal.Rptr.3d 772 [" ‘mere continuation’ " of a corporation's unincorporated business line by a new corporation with nearly the same management and nearly the same ownership justifies imposition of corporate successor liability].) Third, as to the possibility that Winter had sole possession of the 2005 Due Diligence Binder in Santa Rosa and the uncertainty surrounding what, if anything, she communicated to Hardy about the binder's contents—not to mention what she herself knew of its contents, an issue Ram's Gate, in its rehearing petition, emphatically contends is nowhere addressed in the evi...

People v Belyew

The court, moreover, was required to instruct the jury that "applied force" and application of force" meant "to touch in a harmful or offensive manner" for both the assault with a deadly weapon offense and the lesser included offense of simple assault. (Breverman, supra, 19 Cal.4th at p. 154 [duty to instruct on general principles of law applicable to case includes obligation to instruct on lesser included offenses when evidence raises question of whether all elements of charged offense were present]; Cummings, supra, 4 Cal.4th at p. 1311 [court obligated to instruct on all elements of a charged offense].) Similarly, use of a "deadly weapon" was an element of both the assault with a deadly weapon offense (§ 245, subd. (a)(1)) as well as the deadly weapon enhancement (§ 12022, subd. (b)(1)), which was attached to the domestic violence offense. As for the phrase "great bodily injury," that definition applied to both the deadly weapon enhancement under section 12022, subdivision (b)(1) (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029 ["a 'deadly weapon' is 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury' "]) as well as the great bodily injury enhancement under section 12022.7 (§ 12022.7, subd. (a) ["Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years."].)

Barriga v 99 Cents Only Stores

The high court stated it was beyond question that the district court's order interfered with the plaintiffs' ability to inform potential class members of the existence of the lawsuit and made it more difficult for plaintiffs "to obtain information about the merits of the case from persons they sought to represent." ( Gulf Oil, supra , 452 U.S. at p. 101, 101 S.Ct. 2193.) "Because of these potential problems, an order limiting communications between parties and potential class members should be based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties. Only such a determination can ensure that the court is furthering, rather than hindering, the policies embodied in the Federal Rules of Civil Procedure, especially Rule 23. In addition, such a weighing—identifying the potential abuses being addressed—should result in a carefully drawn order that limits speech as little as possible, consistent with the rights of the parties under the circumstances. As the court stated in Coles v. Marsh , 560 F.2d 186, 189 (C.A. 3), cert. denied, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 (1977) : [¶] ‘[T]o the extent that the district court is empowered ... to restrict certain communications in order to prevent frustration of the policies of Rule 23, it may not exercise the power without a specific record showing by the moving party of the particular abuses by which it is threatened. Moreover, the district court must find that the showing provides a satisfactory basis for relief and that the relief sought would be consistent with the policies of Rule 23 giving explicit consideration to the narrowest possible relief which would protect the respective parties.’ " ( Gulf Oil , at pp. 101-102, 101 S.Ct. 2193, fns. omitted.) The Supreme Court looked "in vain for any indication of a careful weighing of competing factors" and stated the district court had "failed to provide any record useful...

People v Duley

Nor can we conclude that defendant was unable to perform the basic tasks necessary to his defense. (Mickel, supra, 2 Cal.5th at p. 208.) As we have previously stated, defendant's outburst during trial reflected a thorough understanding of, and vigorous disagreement with, the proceedings against him and the People's theory of the case. Moreover, at the time defendant's Faretta request was granted, he was articulate and informed in his communications with the court. He was able to perform basic legal tasks for himself, including requesting self-representation and obtaining and reviewing the relevant court form. He thereafter understood that the matter was proceeding toward sentencing and sought continuances to pursue what he viewed as meritorious issues regarding trial evidence. He submitted complaints regarding the trial judge to various agencies, then sought the judge's disqualification. When these efforts failed and the matter proceeded to sentencing, he engaged in a "rant" that the judge viewed as an attempt at further delay. In other words, defendant's efforts reflect a basic ability to represent and defend his own interests in the courtroom. While some of his efforts were unsuccessful and he ultimately may have been poorly served by his own representation, this does not demonstrate that he "suffer[ed] from severe mental illness to the point where [he was] not competent to conduct trial proceedings by [himself]." (Indiana v. Edwards, supra, 554 U.S. at p. 178.) To the contrary, absent more, the risk of ineffective representation is assumed by any defendant who chooses self-representation. (People v. Taylor (2009) 47 Cal.4th 850, 866 [the "likelihood or actuality of a poor performance" does not defeat the right of self-representation].)

People v Phomvilay

Though defendant challenges Carla's credibility, we do not reweigh evidence or reevaluate a witness's credibility. (People v. Alexander (2010) 49 Cal.4th 846, 917.) Here, defendant's counsel had a full opportunity to cross-examine Carla, not only about her degree of certainty in her photo selection, but about all aspects of the identification process, including the conditions under which she had observed the perpetrator, and about her recanting her identification of the second perpetrator. Defendant also presented expert testimony on factors affecting the accuracy of eyewitness identifications. Under these circumstances, the jury was able to evaluate the credibility of Carla's identification, and the weight her testimony deserved was for the jury to resolve. (See People v. Boyer, supra, 38 Cal.4th at p. 481.) Accordingly, we conclude her out-of-court identification was sufficient evidence to establish defendant's identity as the perpetrator. (See id. at pp. 480-481 [witness's identification of defendant in photo array on night of murder was sufficient evidence of identity though witness "did not independently identify defendant in the courtroom, or confirm that she remained certain of her photo identification" because "the jury was able to evaluate the credibility of [the witness's] identification, and the weight her testimony deserved was for the jury to resolve"]; People v. Cuevas, supra, 12 Cal.4th at p. 276 [witnesses' out-of-court statements were substantial evidence defendant was shooter despite witnesses' recantations at trial where one witness was acquainted with defendant before the shooting and identified defendant as the perpetrator immediately after offense and three days later, and both witnesses provided physical descriptions consistent with defendant's appearance]; see also People v. Braun (1939) 14 Cal.2d 1, 5 ["To entitle a reviewing court to set aside a jury's finding of guilt, the evidence of identity must be so weak as to constitute practically ...

People v Davis 1

Here, the jury was presented with a natural and probable consequence theory of liability on Davis's part (based on aiding and abetting the robbery) on the torture count. Both parties cite to People v. Bradley (2003) 111 Cal.App.4th 765, 770 (Bradley) in which the defendant acted as the "'bait'" in a scheme to lure a prosperous-looking customer into leaving a casino so her two male accomplices could rob him. All went according to plan until one of the men beat the victim with a firearm and then shot him multiple times. The victim survived. The defendant was convicted of attempted murder and second degree robbery, for which the trial court imposed consecutive sentences. (Bradley, supra, at pp. 767-768.) On appeal, the defendant challenged the imposition of consecutive sentences. (Id. at p. 768.) The Court of Appeal observed: "Appellant had only one objective and one intent—to aid and abet a robbery of the victim .... She was neither tried for nor convicted of the attempted murder charge on the theory she intended the commission of that crime. Rather she was convicted on a theory this second offense was a 'natural and probable' consequence of the offense she did intend, that is, the robbery." (Id. at pp. 768-769.) Under the circumstances, the court reasoned, "without a finding appellant at some point entertained as an independent objective the goal of attempting to murder [the victim], ... section 654 denies the trial court discretion to impose consecutive sentences on appellant for the robbery and attempted murder convictions. [¶] ... [¶] Appellant is clearly less culpable than her male confederate who shot [the victim] or the other male confederate who aided and abetted that second crime. Unlike them, she only had a single criminal objective—the robbery .... Indeed she was unaware that second crime was occurring until after it was completed and thus didn't have an opportunity to prevent or even protest its commission. As a result, there simply was no evidence appell...

People v Moore 4

But the prosecutor had no reason to ask the other prospective jurors "to elaborate" on their "yes" responses, or to probe them for "sympathy" bias. In response to defense counsel's question about the reasonable doubt standard, K.E. explained why he agreed that the reasonable doubt standard was the "right" standard of proof. K.E. said, "I believe if you're going to throw somebody in jail, you need to have credible evidence to do that because pretty much their life is over. . . and . . . families are going to suffer if you don't have the adequate [proof of the conviction.]" After defense counsel finished K.E.'s sentence by asking, "Because of the consequences?" K.E answered, "Yes, consequences. I believe you bringing a case, then it's [incumbent] for you to prove that case." Defense counsel then asked the other prospective jurors, "Does everyone agree with that?" They collectively answered, "yes." By their collective "yes" response, the other prospective jurors were merely agreeing that it was "right" to require the prosecution to prove its case beyond a reasonable doubt. There appears to have been no reason to probe any of the other prospective jurors for sympathy bias. Indeed, and as the prosecutor explained to the court, no other prospective juror made comments similar to K.E.'s or had a background similar to K.E.'s—working as a nurse with jail inmates on a daily basis. B. The Evidence Was Insufficient to Support a Mayberry Instruction

Lundquist v Lundquist

Patrick contends he did not waive a section 1310 automatic stay claim concerning Michelle's postjudgment petition. We first address the second accounting, the sale of real and non-heirloom personal property, and the reimbursement of Michelle's personal expenditures. To the extent that Patrick asserts on appeal that the automatic stay provisions of section 1310, subdivision (a), stayed the court's order concerning those matters because they were within the scope of the operation and effect of the judgment, we conclude he is estopped from making that argument on appeal by the assertions he made to the trial court and by his subsequent conduct seeking to purchase property sold on behalf of the trust by Michelle, acting as trustee. Any such contention made now is inconsistent with the position he took in the trial court in opposing Michelle's section 1310, subdivision (b) motion to be appointed as temporary trustee and his subsequent conduct; thus, the contention is barred by the doctrine of judicial estoppel. (See Owens v. County of Los Angeles (2013) 220 Cal.App.4th 107, 121 [judicial estoppel is an equitable doctrine designed to maintain the integrity of the courts and protect the parties from unfair strategies; it prohibits a party from asserting a position in a legal proceeding that is contrary to a position successfully asserted in the same or some earlier proceeding].) Indeed, as we have noted, after acknowledging that Michelle had been validly acting as cotrustee, Patrick never argued in the trial court that the automatic stay provisions in section 1310, subdivision (a), deprived Michelle of the authority to continue acting as a cotrustee — apparently given that she succeeded to that position because Katherine had been conserved. We view Patrick's contention in the trial court that Michelle had the authority to continue acting as trustee to be inconsistent with any contention that she could not be reimbursed for her expenses or receive trustee fees for her post...

People v Flores

Sanchez "defines case-specific facts to be facts 'relating to the particular events and participants alleged to have been involved in the case being tried.' ([Sanchez, supra, 63 Cal.4th] at p. 676.) The predicate offenses used in this case do not fall within this definition; they did not involve the particular events or participants involved in the case being tried. Rather, they are historical facts related to the gang's conduct and activities. These facts pertain to the gang as an organization and are not specific to the case being tried. They establish that the 'organization, association, or group' has engaged in a 'pattern of criminal gang activity' and is thus a criminal street gang (§ 186.22, subd. (f)) irrespective of the events and participants in the case being tried. A predicate offense and the underlying events are essentially a chapter in the gang's biography. Thus, they are relevant to a gang expert's opinion about whether a group has engaged in a pattern of criminal gang activity and is a criminal street gang under the statutory definition. Moreover, predicate offenses are specific examples of the gang's primary activities and thus such evidence is relevant to the gang expert's opinion about the primary activities of the gang." (People v. Blessett, supra, 22 Cal.App.5th at pp. 944-945, original italics.) Because the predicate offenses evidence did not concern case-specific facts, the trial court correctly admitted Sergeant Lynn's testimony concerning the predicate crimes.

People v Campbell

In any event, even assuming instructional error as defendant claims, we conclude the error did not result in a miscarriage of justice. Since defendant was acquitted on the human trafficking charges, we limit our prejudice inquiry to defendant's convictions for pimping and pandering. As relevant here, the jury was instructed that it could consider the prior uncharged acts of domestic violence if it found, by a preponderance of the evidence, that defendant committed those acts. Furthermore, the jury was told that it could , but was not required to, consider the uncharged acts evidence for the limited purpose of determining defendant's credibility as a witness. (CALCRIM Nos. 316, 375, 852.) The jury was further instructed that it alone must judge the credibility of witnesses using common sense and experience, ( CALCRIM No. 226 [Witnesses] ) and that defendant's commission of other misconduct (i.e., the prior uncharged acts of domestic violence) does not necessarily destroy or impair his credibility, and it was for the jury to decide the weight to be given to the evidence and whether it made defendant less believable. ( CALCRIM No. 316.) More importantly, the evidence presented at trial as to defendant's guilt on the pimping and pandering convictions was strong in comparison to the evidence presented by the defense, which consisted only of defendant's testimony. As discussed above, JD1, JD2, and JD3 testified in detail about defendant's conduct in assisting and encouraging them to engage in prostitution activities (e.g., posting online advertisements, setting up dates with clients, booking hotel rooms, providing transportation to dates) in exchange for a share of their earnings. These witnesses collectively testified that JD4 through JD11 also "worked" with defendant, and that the work the women engaged in was prostitution activities. The testimony of JD1, JD2, and JD3 was corroborated by the sting operation, defendant's testimony, evidence obtained from electronic se...

People v Johnson 1

Contrary to Villanueva's assertion, putting aside the challenged evidence, there is overwhelming evidence that Villanueva was a member of or affiliated with Viet Pride and was motivated by his membership in that gang when he committed the target crime of challenging Saechao to a fight. Luu testified that he had known Villanueva for five or six years, and when asked whether Villanueva had any gang affiliations, Luu responded that "he was hanging out with us. We was known as Viet Pride Crips." Both Luu and Takahashi testified that Villanueva had a "Rest in Peace, Gia Huynh or aka Yogi" tattoo, which was a common tattoo of Viet Pride gang members. Takahashi also identified two photographs of Villanueva posing with KZT and Viet Pride gang members. In addition, Villanueva was with KZT and Viet Pride gang members on the day in question. He and another Viet Pride gang member, Do, confronted a Hop Sing gang member, called him "Hop Chop," told him that he was in their territory, and challenged him to come outside and fight. When Luu asked Villanueva and Do what was going on, one or both of them told Luu that there was a "Hop Chop" inside. The Savings Place shopping center where the shooting took place was a known gathering place for KZT gang members. Significantly, much of Villanueva's activity on the day in question, including his presence outside the water store, his contacts with Saechao, and his association with Randall and Johnson, Do, and Luu, was captured on videotape and shown to the jury. Given this evidence, no reasonable juror could conclude that Villanueva's actions were not gang motivated, and any error in admitting evidence of Villanueva's prior contacts with police was harmless beyond a reasonable doubt.

Pankey v Petco Animal Supplies

The majority assume for purposes of discussion that the biology of rats and the pathology of rat bite fever (RBF) are complex topics. I don't disagree. However, characterizing a product as "complex" is the beginning, not the end, of the analysis because the consumer expectations test can apply to complex products, depending on the circumstances of the alleged failure. ( Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1232, 115 Cal.Rptr.3d 151.) This court emphasized this very point only a few years ago in Demara v. The Raymond Corp. (2017) 13 Cal.App.5th 545, 559, 221 Cal.Rptr.3d 102 ( Demara ). The plaintiff in Demara , injured when his foot was crushed by a forklift, brought a strict products liability claim alleging that the forklift was defectively designed. The defendant argued that the consumer expectations test did not apply because "the ordinary consumer has no experience, and thus no expectation, as to the design and safety of the [forklift]—a complex and technical product." ( Id. at p. 558, 221 Cal.Rptr.3d 102.) We concluded otherwise, observing that "where a technically complex product performs ‘so unsafely that the defect is apparent to the common reason, experience, and understanding of its ordinary consumers,’ a lay jury is competent to determine whether the product's design is unsafe." ( Id. at pp. 558–559, 221 Cal.Rptr.3d 102.) We further explained: " ‘If the facts permit an inference that the product at issue is one about which consumers may form minimum safety assumptions in the context of a particular accident, then it is enough for a plaintiff, proceeding under the consumer expectation test, to show the circumstances of the accident and "the objective features of the product which are relevant to an evaluation of its safety" [citation], leaving it to the fact finder to "employ ‘[its] own sense of whether the product meets ordinary expectations as to its safety under the circumstances presented by the evidence.’ " ’ " ( Id. at ...

People v Tarkington

These concerns are unfounded. Verdugo explained what information a court should examine in making the threshold eligibility determination: "Although subdivision (c) does not define the process by which the court is to make this threshold determination, subdivisions (a) and (b) of section 1170.95 provide a clear indication of the Legislature's intent.... [S]ubdivision (b)(2) directs the court in considering the facial sufficiency of the petition to access readily ascertainable information. The same material that may be evaluated under subdivision (b)(2)—that is, documents in the court file or otherwise part of the record of conviction that are readily ascertainable—should similarly be available to the court in connection with the first prima facie determination required by subdivision (c). In particular, because a petitioner is not eligible for relief under section 1170.95 unless he or she was convicted of first or second degree murder based on a charging document that permitted the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine [citation], the court must at least examine the complaint, information or indictment filed against the petitioner; the verdict form or factual basis documentation for a negotiated plea; and the abstract of judgment. Based on a threshold review of these documents, the court can dismiss any petition filed by an individual who was not actually convicted of first or second degree murder. The record of conviction might also include other information that establishes the petitioner is ineligible for relief as a matter of law because he or she was convicted on a ground that remains valid notwithstanding Senate Bill 1437's amendments to sections 188 and 189 [citation]—for example, a petitioner who admitted being the actual killer as part of a guilty plea or who was found to have personally and intentionally discharged a firearm causing great bodily injury or death in a single vic...

People v Vaughn

Defendant argues his statements were ambiguous and did not constitute threats. In making this argument, defendant focuses on his use of the word "f[**]k," cites to various dictionary and slang definitions of the word, and asserts that the word has not been interpreted as a threat in other cases. However, none of the cases cited by defendant held that a person's use of this word did not constitute a criminal threat as defined by section 422. (People v. Bemore (2000) 22 Cal.4th 809, 829 [defendant cursed victim during crime; conviction for capital murder affirmed]; People v. Forest (2017) 16 Cal.App.5th 1099, 1104 [conviction for assault with a deadly weapon; defendant told victim not to " 'mess' " or " 'f[**k]' " with him before he attacked him; opinion addressed unrelated petition for writ of corum nobis]; People v. Byrd (2016) 1 Cal.App.5th 1219, 1228 (conc. opn. by Hull, J. [convictions for murder and fleeing an officer with wanton/willful disregard; conviction for fleeing reversed for insufficient evidence; citation is to defendant's testimony that when he said that he did not want to "f[**]k" with the officers, he meant that he did not want to "mess" with them; People v. Thomas (2013) 218 Cal.App.4th 630, 640 [murder conviction reversed for instructional error; evidence that defendant cursed victim but not relevant to error]; People v. Flores (2009) 176 Cal.App.4th 1171, 1174 [the defendant swore at his girlfriend and assaulted her; domestic violence conviction affirmed]; People v. Spencer (1996) 51 Cal.App.4th 1208, 1213 [the defendant convicted of manslaughter; evidence introduced that he cursed victim before firing].)

People v Crittenden

Moreover, the threat need not contain "overt suggestions of violent intent" to constitute a "credible threat" that falls outside of constitutionally protected activity. (Lopez, supra, 240 Cal.App.4th at p. 453; see also Black, supra, 538 U.S. at p. 360 [cross burnings fit within true threats].) As detailed above, Crittenden's December 11 e-mails included web banners listing Carroll's home address and inviting people to download information about his home security system. In addition, the second e-mail said Carroll would live with the burden of his actions, provided weblinks for ADT manuals, and included Gettinger and others as recipients. Crittenden's statements, moreover, were unlike the "political hyperbole" (Watts, supra, 394 U.S. at p. 708 ) or expressions of "jest or frustration" that are protected by the First Amendment. (People v. Lowery (2011) 52 Cal.4th 419, 427 (Lowery) [construing section 140(a) as applying only to true threats].) Rather, Crittenden's actions can reasonably be viewed as engendering fear that Carroll or his family will be subjected to harm. (See People v. Halgren (1996) 52 Cal.App.4th 1223, 1231-1232 (Halgren) [in the context of a series of phone calls, the First Amendment did not protect defendant's statements to victim that "she would be sorry she had been rude to him," "she would pay for being rude to him," and he was going to " 'fix her' " or " 'fix this.' "]; see also In re Ernesto H. (2004) 125 Cal.App.4th 298, 303-304, 313 [minor's statement " ' "Yell at me again and see what happens," ' " along with his step toward the victim and threatening stance was a true threat].)

People v Jarrell

At sentencing, the court imposed the upper term sentence on count 1 and consecutive terms on nine additional counts. It explained its reasons thus: "Number one, the defendant armed himself with stolen guns and ammunition at the time of the burglary. Number two, the victims were particularly vulnerable, lured away from their home by the defendant's accomplice. Number three, defendant induced others to participate in the commission of the crime and occupied a position of leadership and dominance of other participants in this commission. . . . Number four, defendant intimidated witnesses. Number five, the manner in which this crime was committed or carried out indicated planning, sophistication an[d] professionalism. Number six, the crime involved taking of great monetary value, to wit, $76,000.00 and as victim Kristie [S.] testified and I quote pretty much everything that mattered was taken. Number, seven, defendant's accomplice took advantage of a position of trust and confidence of which the defendant was aware. Number eight, the defendant's prior convictions as an adult are numerous, to wit, fourteen of them. Number nine, defendant served prior prison terms. Number ten, defendant's prior performance on probation or parole was unsatisfactory. To that I'm going to add the comments of the probation office some of which I have already stated. The defendant and his accomplice conspired to commit the crime days prior and lured the victims away from their house and utilized the victim's own hide-a-key to gain access. The defendant utilized the accomplice's relationship with the victims to lure them away from the house. The defendant has a significant prior record with a defined pattern of property crimes, drug offenses and firearm activities, while he has a recent period absent of criminal convictions, the present offense does not appear out of character. The defendant suffered a prior parole violation. During his interview [with] undersigned the defendant denied committi...

Shell Oil v Barclay Hollander

BHCP was a general partnership, formed by five individuals that owned and operated many companies before Shell agreed to sell the Kast Tank Farm to Mr. Barclay in 1965. In 1969, the five principals of BHCP agreed to sell 13 of their 36 BHCP companies to Castle & Cooke. The same five principals of BHCP were also the majority shareholders of the 13 entities sold to Castle & Cooke. The 13 companies acquired from BHCP in 1969 were not all active, nor were they all actively engaged in residential real estate development. Real estate development was the primary purpose of many of the companies that BHCP retained. Castle & Cooke formed BHCorp as a California corporation in 1969 as the entity to receive the 13 companies that it acquired from BHCP. Upon the effective date of the merger into BHCorp, the separate corporate existence of the 13 former BHCP corporations ceased to exist, and BHCorp succeeded to all the rights, privileges, powers, franchises and property, and was only subject to the debts and liabilities, of the 13 merged former BHCP corporations. BHCP did not sell all of its companies to Castle & Cooke, and continued to own and operate multiple companies after completion of the 1969 sale. As the Agreement of Merger acknowledged, only the liabilities of the companies BHCorp acquired from the general partners of BHCP were to be assumed by BHCorp. Nothing in the Agreement of Merger provided that any other liability of BHCP was to be assumed by BHCorp, and in particular, the Agreement of Merger did not purport to transfer BHCP's liabilities under the Indemnity Agreement to BHCorp.

People v Vivero

Following the United States Supreme Court's ruling in Apprendi, our Supreme Court reexamined Bright's conclusion as to the nonapplicability of double jeopardy protections and held that after an appellate finding of evidentiary insufficiency concerning a finding that an attempted murder is willful, deliberate, and premeditated, double jeopardy protections preclude a retrial of the penalty allegation. (People v. Seel (2004) 34 Cal.4th 535, 539, 541 (Seel).) Our Supreme Court explained the premeditation allegation under section 664, subdivision (a) "is 'the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict.' " (Seel, supra, at p. 548; see also id. at p. 550 ["Apprendi now compels the conclusion that the premeditation allegation (§ 664[, subd. ](a)) constitutes an element of an offense"].) Seel has been read to leave intact Bright's conclusion that premediated attempted murder and attempted murder are not separate offenses. (People v. Sedillo, supra, 235 Cal.App.4th at p. 1049; accord Anthony v. Superior Court (2010) 188 Cal.App.4th 700, 706, fn. 4.) Our Supreme Court has clarified that Apprendi " means only that a defendant is entitled to have a jury determine whether those facts supporting an increased sentence have been proven beyond a reasonable doubt. The high court chose its language carefully and has expressed no intention to alter state law procedures that have no bearing on the jury trial right. . . . [¶] We recently rejected the notion that the high court's 'functional equivalent' statement requires us to treat penalty allegations as if they were actual elements of offenses for all purposes under state law." (Porter v. Superior Court (2009) 47 Cal.4th 125, 137, emphasis omitted.) Consequently, our Supreme Court has continued to reaffirm that "attempted premeditated murder and attempted unpremeditated murder are not separate offenses" and "[a]ttempted premeditated murder is not a greater offense or degre...

Green v City of South Pasadena

This case involves two appeals. First, defendant City of South Pasadena (the City) appeals from a jury award in favor of plaintiff Timothy Patrick Green (Green), a veteran police officer, of $4,772,000 in damages, including initially $4 million in noneconomic damages, for Green's claims of disability discrimination and failure to accommodate and engage in the interactive process. The City contends Green's claims for failure to accommodate and engage in the interactive process should never have gone to the jury and that the trial court should have granted the City's motion for judgment notwithstanding the verdict because Green never requested accommodation and his own attorney eschewed Green needing any accommodation even when the City offered to engage in the interactive process. The City further contends that allowing these claims to go to the jury prejudiced the jury's consideration of Green's disability discrimination claims. Additionally, the City argues the trial court committed prejudicial error in admitting the former chief of police's lay opinion testimony about Green's disabilities and observations about a captain's animus "to get" Green. The trial court, moreover, committed prejudicial error in allowing Green's trial counsel during his closing argument to speculate that key percipient witnesses not called by the City would have testified favorably for Green. For the reasons set forth in our opinion, none of these arguments is well-taken.

People v Medina

After the recording of a jury's verdict in a criminal trial, the trial court must seal the "record of personal juror identifying information," including "names, addresses, and telephone numbers." (Code Civ. Proc., § 237, subd. (a)(2).) A criminal defendant may "petition the court for access to personal juror identifying information within the court's records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose." (Code Civ. Proc., § 206, subd. (g).) "The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror's personal identifying information." (Code Civ. Proc., § 237, subd. (b).) Good cause requires " 'a sufficient showing to support a reasonable belief that jury misconduct occurred.' " (People v. Cook (2015) 236 Cal.App.4th 341, 345.) " 'Absent a satisfactory, preliminary showing of possible juror misconduct, the strong public interests in the integrity of our jury system and a juror's right to privacy outweigh the countervailing public interest served by disclosure of the juror information . . . .' " (People v. Carrasco (2008) 163 Cal.App.4th 978, 990.) We review a trial court's denial of a petition for the release of juror information for abuse of discretion. (Id. at p. 991.)

In re Rayford

By contrast, in People v. Perez , supra , 50 Cal.4th at page 232, 112 Cal.Rptr.3d 310, 234 P.3d 557, the Supreme Court concluded the defendant had not created a kill zone where he fired a single shot from a moving car at a group of eight individuals 60 feet away, therefore supporting only one, not eight, counts of attempted murder. The Supreme Court explained, " ‘[A] shooter may be convicted of multiple counts of attempted murder on a "kill zone" theory where the evidence establishes that the shooter used lethal force designed and intended to kill everyone in an area around the targeted victim (i.e., the "kill zone") as the means of accomplishing the killing of that victim.’ " ( Ibid . ; see People v. Stone (2009) 46 Cal.4th 131, 135, 92 Cal.Rptr.3d 362, 205 P.3d 272 [trial court erred by instructing on kill zone theory where defendant shot a single bullet at alleged victim standing in group of 10 rival gang members 60 feet away from defendant].) The Supreme Court revisited the kill zone theory in Canizales, supra , 7 Cal.5th 591, 248 Cal.Rptr.3d 370, 442 P.3d 686, in which it narrowed application of the doctrine. The Supreme Court held, "[T]he kill zone theory for establishing the specific intent to kill required for conviction of attempted murder may properly be applied only when a jury concludes: (1) the circumstances of the defendant's attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death—around the primary target; and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm. Taken together, such evidence will support a finding that the defendant harbored the requisite specific intent to kill both the primary target and everyone within the zone of fatal harm. [¶] In ...

Regents of University of California v Public Employment Relations Board

PERB also interpreted this regulation in 2010 Regents , supra , PERB Dec. No. 2107-H, a matter involving the same parties to the current dispute. In that case, PERB evaluated a unit modification petition seeking to add unrepresented case managers to a bargaining unit represented by UPTE. (Id. at pp. 1–2.) The University argued in part UPTE's petition should be denied because it was not accompanied by proof of majority support. (Id. at p. 19.) The University asserted PERB Regulation 32781, subdivision (e)(1) gave PERB discretion to require such proof. (2010 Regents , at p. 20.) PERB rejected this argument. (Ibid. ) In reaching its conclusion, PERB explained prior iterations of PERB Regulation 32781 gave it discretion to require proof of majority support, and it had exercised such discretion when a petition sought to " ‘add a substantial number of employees’ " such that it " ‘would constitute a substantial change in the structure of that unit.’ " (2010 Regents , at p. 20, citing State of California, Department of Personnel Administration (1989) PERB Dec. No. 776-S (DPA ).) It further explained the amendment to PERB Regulation 32781's proof of majority support requirement was designed "to eliminate ambiguity and add clarity regarding when majority proof of support is required .... Section 32781(e) ... states that PERB ‘may require such support, but the regulations do not provide criteria for when PERB ‘should’ require support. Use of a standard whereby support was required if the positions to be added equal 10 percent or more of the number of employees in the established unit was approved in a Board decision ( [DPA , supra ,] PERB Decision No. 776-S) but never adopted as ‘the standard’ by the Board. The proposed amendments to section 32781 ... would incorporate the 10 percent standard and make it mandatory." (2010 Regents , at pp. 20–21, citing Cal. Reg. Notice Register 2005, No. 51-Z, p. 1773.) While the revised PERB Regulation 32781, subdivision (e)(1) only stated...

People v Avina

Avina does argue: "The Supreme Court has recognized that an informant who takes deliberate action to obtain incriminating remarks from a suspect can result in a Sixth Amendment violation," citing Kuhlmann v. Wilson (1986) 477 U.S. 436. Kuhlmann, however, dealt with the Sixth Amendment right to counsel, not the Sixth Amendment right to confrontation. (Id. at pp. 456-461; see generally Massiah v. United States (1964) 377 U.S. 201, 206 [once a defendant's Sixth Amendment right to counsel has attached, it violates that right for an informant, acting as a government agent, to deliberately elicit statements from the defendant].) Avina's defense counsel did not object based on the right to counsel below — and for good reason. The fact that Baca was acting as a government agent when he deliberately elicited incriminating statements from Mendez could not possibly violate Avina's right to counsel.Mendez's defense counsel also did not object based on the right to counsel. It is less obvious why he would not. The record suggests, however, that when Baca questioned him, Mendez was not in jail in connection with this case, but rather in connection with an unrelated murder case. (See part X, post.) If so, then his Sixth Amendment right to counsel in this case had not yet attached. (See generally McNeil v. Wisconsin (1991) 501 U.S. 171, 175 [Sixth Amendment right to counsel is "offense specific"; it attaches only when "a prosecution is commenced."].)

Oliver v Konica Minolta Business Solutions USA

In this case, the parties dispute (1) whether the above-quoted sentence regarding the delivery of equipment in the DLSE opinion letter was in reference to the employee who prompted the letter, or to one of the construction workers described in the hypothetical examples, (2) whether the reference to "equipment, goods or materials" in the letter includes the tools and parts at issue in this case, (3) the meaning of "deliver" in the letter, and (4) whether service technicians in this case "deliver" anything to customers. Given the ambiguity regarding the factual context of the statement and the lack of legal analysis for the conclusion stated, it is difficult to determine whether the DLSE's general statement that the "deliver[y]" of "any equipment, goods or materials for the employer" is compensable travel time applies in this case. For that reason, we do not find the DLSE's general statement in the letter to provide much guidance in resolving the issues in the instant case. (See Hernandez, supra , 29 Cal.App.5th at p. 143, 239 Cal.Rptr.3d 852 [regarding the same opinion letter and statement by the DLSE, the appellate court did "not find the ‘tangential and conclusory’ statement ... persuasive on the question" of whether transporting equipment and tools during a commute is compensable time].) Third, plaintiffs rely on workers' compensation cases, along with tort and disability retirement benefits cases, that address whether an employee, who was required to use a personal vehicle for work, was acting within the course or scope of employment when the employee suffered an injury, or injured someone else, while commuting. (See, e.g., Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150, 151-153, 157, 163, 104 Cal.Rptr. 456, 501 P.2d 1176 ; Joyner v. Workers' Comp. Appeals Bd. (1968) 266 Cal.App.2d 470, 471-472, 474, 476-477, 72 Cal.Rptr. 132 ; Lane v. Industrial Acc. Com. (1958) 164 Cal.App.2d 523, 525, 526-528, 331 P.2d 99 ; Moradi v. Marsh USA, Inc. (2013) 219 Cal...

People v Reneaux

In Carlson v. Attorney General of California (9th Cir. 2015) 791 F.3d 1003, quoted at length by the majority, the evidence of the defendant's interference with his child (the victim/witness) and his wife (a witness) extended to the defendant's secreting the two away from home and away from any influences, staying with them at the hiding place, and telling the other children not to call their mother while she was away. ( Id . at p. 1012.) Finding that the "circumstances demonstrate both concealment of the witnesses’ whereabouts and insulation of the witnesses from the reach of either compulsion or persuasion regarding showing up at trial," the Carlson court concluded the trial judge's application of the doctrine was not unreasonable. ( Id . at p. 1013.) That conduct is not at all comparable to defendant's actions here. The majority turns next to three opinions from two out-of-state courts in purported support of its holding. In the first, Commonwealth v. Szerlong (2010) 457 Mass. 858, 933 N.E.2d 633 at page 641, the defendant (while a fugitive) married the witness to enable her to claim the spousal privilege. A marriage demonstrates a much more committed course of action than do the two telephone calls here. In the second case, also from Massachusetts, the court held that colluding with a witness to secure the witness's unavailability for trial could qualify as wrongdoing, remanding for an evidentiary hearing. ( Commonwealth v. Edwards (2005) 444 Mass. 526, 830 N.E.2d 158.) "As its primary indication of collusion, the Commonwealth relied on its representation of the contents of several recorded telephone conversations, initiated by Edwards while he was incarcerated and made just prior to two scheduled trial dates ... in which Edwards allegedly conspired with Crockett and others to procure Crockett's unavailability for trial." ( Id . at p. 164.) Because this information came by proffer only, we do not know the extent of the collusion between the defendant and witness ...

Boyd v JH Boyd Enterprises

Appellants, however, never raised this contention in the trial court, and therefore it cannot be considered for the first time on appeal. "Though this court is bound to determine whether [JHBE] met [its] threshold summary judgment burden independently from the moving and opposing papers, we are not obligated to consider arguments or theories, including assertions as to deficiencies in [JHBE]'s evidence, that were not advanced by [appellants] in the trial court. 'Generally, the rules relating to the scope of appellate review apply to appellate review of summary judgments. [Citation.] An argument or theory will ... not be considered if it is raised for the first time on appeal. [Citation.] Specifically, in reviewing a summary judgment, the appellate court must consider only those facts before the trial court, disregarding any new allegations on appeal. [Citation.] Thus, possible theories that were not fully developed or factually presented to the trial court cannot create a "triable issue" on appeal.' [Citation.] 'A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant.' " (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 676 (DiCola).) Since appellants did not argue in their opposition to respondents' summary judgment motion, or at the hearing on the motion, that they could maintain a claim for unjust enrichment regardless of the enforceability of the oral agreement, they have forfeited this argument.

Stanford Vina Ranch Irrigation v State

The trial court ordered the writ of mandate/injunctive relief causes of action bifurcated from the inverse condemnation/declaratory relief causes of action. Thereafter, Stanford Vina filed an opening brief arguing: (1) the Board abused its discretion in adopting the "curtailment regulations" in 2014 and 2015 because these regulations amounted to a taking of Stanford Vina's vested water rights without just compensation; (2) the Board violated Stanford Vina's constitutional right to due process by failing to hold an evidentiary hearing prior to taking these water rights and by failing to provide the company with adequate notice; (3) the Board could not lawfully invoke the rule of reasonableness set forth in article X, section 2, to limit Stanford Vina's water rights without first holding an evidentiary hearing; (4) the Board misapplied the rule of reasonableness; (5) the public trust doctrine does not apply to Stanford Vina's water rights; (6) the challenged regulations and curtailment orders violated the rule of priority; (7) the Board ignored a binding judgment previously adjudicating Stanford Vina's water rights; (8) the Board improperly amended the challenged 2014 regulations on the day of their adoption; and (9) the conditions existing in the Deer Creek watershed in 2014 and 2015 "did not constitute a true emergency." In opposition, the Board and other defendants (collectively, defendants) argued the Board possessed the authority to adopt the challenged emergency regulations and issue the subsequent curtailment orders to "regulate the unreasonable use of water," relying primarily on Light, supra , 226 Cal.App.4th 1463, 173 Cal.Rptr.3d 200 and People ex rel. State Water Resources Control Bd. v. Forni (1976) 54 Cal.App.3d 743, 126 Cal.Rptr. 851 ( Forni ). Without setting forth defendants’ response to each argument advanced by Stanford Vina, we note they argued substantial evidence supported the Board's findings that a drought emergency existed and "immediate action...



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