California > Court of Appeal > 2020

California Courts of Appeal | Top Cases | August 2020

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People v Thomas 1

After asking further questions of defense counsel and taking the matter under submission, the trial court denied the motion. It found there was "no credible showing or credible offer of proof of substantial similarity" between the allegations at issue and what might have happened over eight years ago, noting that the defense would be relying on the defendant's own testimony in seeking to cross-examine stepson about something that may have happened when he was four or five years old. The court also found that neither Catalina F.'s declaration for a restraining order nor the letter from the women's crisis center established that sexual abuse had occurred. The family court document stated only that Curt W. had been "verbally and emotionally abusive" to stepson and that Catalina F. "believed" he may have been afraid of something where he would not allow her to see his privates while bathing. The letter from the women's crisis center appeared to have been submitted around the time that Catalina F. was seeking a restraining order for what appeared to be primarily a complaint of physical abuse against her. And because the letter referred to counseling for "either sexual abuse or . . . domestic violence abuse," the court reasoned it was insufficient to show the counseling related to sexual abuse. The court concluded that it would deny the motion on that basis, as well as under Evidence Code section 352 because it would require an undue consumption of time in what was the final week of trial and would be confusing to the jury in that it would require a "mini trial of something else that happened long, long ago, if it did happen at all . . . ."

Riverside County Transportation Commission v S California Gas

The Gas Company disputes our reading. It claims that, particularly in light of the facts stated in district court's decision, Los Angeles Gas & Electric Co. v. City of Los Angeles (1917) 241 F. 912, the city was not trying to take the entire franchise. The Supreme Court acknowledged that challenged ordinance did not require "absolute displacement" of the utility's equipment; rather, the city "required the corporation to change or shift or lower its wires to the detriment of their efficient use ...." ( City of Los Angeles v. Los Angeles Gas & Electric Corp., supra , 251 U.S. at pp. 36-37, 40 S.Ct. 76.) It went on to say, however: "There is some conflict as to the extent and effect which, however, we are not called upon to reconcile. It was stipulated: [¶] ‘That the value of the right to exercise the franchises ... exceeded the sum of $3,000 and was in excess of $4,000.’ [¶] And it was testified that if the city ... proceeds as it has done in ordering the removal of poles and wires, it will cost the corporation between $50,000 and $60,000 ...." ( Id. at p. 37, 40 S.Ct. 76.) In other words, nominally, the city was only requiring the utility to relocate its equipment; however, the cost of doing so vastly exceeded the value of the franchise, effectively resulting in a taking of the franchise. Accordingly, Los Angeles has repeatedly been cited as holding that a franchise is a property interest that cannot be taken without due process. (E.g., Petition of Vermont Elec. Power Producers, Inc. (1996) 165 Vt. 282, 289-290, 683 A.2d 716, 720.) Admittedly, under our reading, the governmental-proprietary distinction still has a role to play, albeit a minor one: A public entity can make a utility pay to relocate its entire system only if the public entity is acting in a governmental capacity, because only then is it exercising its police power. However, even this aspect of both New Orleans and Los Angeles was undercut just three years later, when the Supreme Court held that an exe...

People v Polk

Evidence Code section 1040 provides in pertinent part: "(a) As used in this section, 'official information' means information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made. [¶] (b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and either of the following apply: [¶] ... [¶] (2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice . . . ." Evidence Code section 1042, subdivision (d) provides in pertinent part: "(d) When, in any . . . criminal proceeding, a party demands disclosure of the identity of the informant on the ground the informant is a material witness on the issue of guilt, the court shall conduct a hearing at which all parties may present evidence on the issue of disclosure. Such hearing shall be conducted outside the presence of the jury, if any. During the hearing, if the privilege provided for in Section 1041 is claimed by a person authorized to do so or if a person who is authorized to claim such privilege refuses to answer any question on the ground that the answer would tend to disclose the identity of the informant, the prosecuting attorney may request that the court hold an in camera hearing. If such a request is made, the court shall hold such a hearing outside the presence of the defendant and his counsel. At the in camera hearing, the prosecution may offer evidence which would tend to disclose or which discloses the identity of the informant to aid the court in its determination whether there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial. A ...

People v Nash

Respondent views the scope or effect language too broadly, disconnected from the plain language of Proposition 7 and Senate Bill No. 1437. In enacting Proposition 7, the voters mandated harsher punishment—that is, increased sentences—for those convicted of murder, but the measure did not speak to the substantive offense of murder. ( Gooden, supra , 42 Cal.App.5th at p. 282, 255 Cal.Rptr.3d 239 ; accord, Cruz, supra , 46 Cal.App.5th at p. 758, 260 Cal.Rptr.3d 166 ; Solis, supra , 46 Cal.App.5th at pp. 775–776, 259 Cal.Rptr.3d 854.) Respondent asserts that Senate Bill No. 1437 takes away, or eliminates, the sentence mandated by Proposition 7, but Senate Bill No. 1437 does not invalidate or otherwise change the sentence for murder dictated by the voters in enacting Proposition 7. Rather, Senate Bill No. 1437 restricts the bases for murder liability to those individuals who actually killed, who acted with the intent to kill, or who were major participants in the underlying felony and acted with reckless indifference to human life ( § 189, subd. (e) ), and in those cases where the law affords relief, the underlying conviction no longer stands. While the class of individuals standing convicted of murder may be reduced in light of Senate Bill No. 1437's changes to the felony-murder rule and the natural and probable consequences doctrine, the legislation does not change or take away from the sentences those convicted of murder are subject to, which is the mandate of Proposition 7. The authorities relied on by respondent in support of her argument— People v. Armogeda (2015) 233 Cal.App.4th 428, 182 Cal.Rptr.3d 606 ; Prop. 103 Enforcement Project, supra , 64 Cal.App.4th 1473, 76 Cal.Rptr.2d 342 ; and Mobilepark West Homeowners Assn. v. Escondido Mobilepark West (1995) 35 Cal.App.4th 32, 41 Cal.Rptr.2d 393 —offer no assistance, either. In those decisions, the Courts of Appeal concluded that the legislation being challenged impermissibly amended prior voter initiatives, but the...

Starks v Vortex Industrial

I concur in affirming the trial court's denial of Herrera's motion to intervene on the basis of untimeliness. I do so because Herrera's counsel was present when Vortex's attorney informed the trial court during a September 27, 2017 status conference that the parties in Starks were engaged in "ongoing" settlement discussions. Herrera did not seek to intervene at that time, despite the potential res judicata consequences if those discussions produced a settlement. Indeed, the trial court intimated at that status conference that a settlement of the Starks action would have a preclusive effect on Herrera's claims. I agree with the majority that as of the date of the September 27, 2017 status conference, the Starks action posed a measurable risk to Herrera's interests such that he should have moved to intervene at or about that time, and not 47 days later. I disagree, however, with the majority's suggestion that the administrative obstacles attendant with reversing the trial court's approval of the settlement are solely attributable to Herrera's "lack of diligence." (See maj. opn. ante , at p. ––––.) The record does not support that conclusion, given the Starks parties sought to keep Herrera in the dark until judgment was entered and the settlement funds were already being disbursed. The majority acknowledges that: The parties in Starks sought approval on an ex parte basis with no notice to Herrera's counsel; the trial court approved of Starks's and Vortex's request not to inform Herrera of the settlement; and the settlement agreement required that disbursements of settlement funds be made to (a) the LWDA, Starks, and his attorneys no later than 15 days after the issuance of the trial court's approval order; and (b) the aggrieved employees for their share of the PAGA and section 558 penalties no later than 45 days after the court's approval of the settlement, irrespective of whether there would be an appeal or any other challenge to the forthcoming judgment . The reason...

County of Mariposa v JDC Land

An opinion that the presence of certain structural defects poses a risk of building collapse is uniquely within the purview of an expert. Kinslow, the county's building director (a general contractor with 36 years of experience and 43 professional certifications, including as a building, electrical, mechanical and plumbing inspector of commercial and residential properties), offered a declaration that, among other things, the office/residential unit had damaged supports causing the floor to sag and become severely uneven; the damaged supports created a risk of partial or total collapse; the roof supports had split due to defective wood and deterioration, which sacrificed the structural integrity of the roof and risked collapse; the exterior stairway leading to the office/residential unit was damaged and inadequately supported; the wooden interior stairway was substandard and dangerous. Kinslow noted the deck of the lower storage unit was supported by jack posts that were insufficient to hold the weight of the deck and created the risk of collapse; the walls were comprised of wood logs that were rotten and decayed, undermining the structural integrity of the load-bearing walls. Cox's declaration stated the office/residential unit was "grandfathered" from its original construction and, in light of this, apparently the damaged supports and the risk of collapse were irrelevant in his view. Cox asserted all structural problems with the outside and inside stairway were "[f]ixed" or repaired. He also noted as "fixed" the lower storage unit deck that was held up by jack posts. The trial court overruled the county's objections to Cox's declaration, many of which were interposed on the ground of unqualified expert testimony. But Cox did not opine whether the fixed items no longer posed a risk of structural collapse or that loadbearing walls were no longer compromised, for example. There simply was no competent opinion offered to contradict the county's expert in those regard...

Martis Camp Community Association v County of Placer

The trial court found the evidence insufficient to determine whether MCCA owns property abutting Mill Site Road. Plaintiffs argue that the evidence "could not be clearer" that MCCA owns the emergency access road and that the road abuts Mill Site Road. We find the evidence less than clear. Even if we assume that MCCA owns the property underlying the emergency access road (lot CCCC), the evidence conflicts on whether the emergency access road and Mill Site Road abut. On one hand, there is evidence suggesting that Mill Site Road was paved to the Retreat's western property line. On the other hand, there is evidence showing that a small, unsurveyed "remainder" parcel exists between the end of Mill Site Road and the western boundary of the Retreat property, over which there is an emergency access easement. Whether the Martis Camp emergency access road abuts Mill Site Road would seem to depend on whether the unsurveyed remainder parcel was intended to be part of the Mill Site Road offer for dedication to the public, or intended to serve as a "spite strip" to prevent Martis Camp from acquiring abutter's rights. In a December 12, 2011 letter, the director of the CDRA acknowledged the "unsurveyed remainder" issue, and further acknowledged that such property may not have been included within the county service area zone of benefit for the subdivision, but nevertheless took the position that the property is part of the public roadway. The Retreat Homeowners disagreed. We express no opinion on the merits of this issue.

People v Luna

Defendants' assertion that we may reverse their convictions on direct appeal relies in part on In re Estrada (1965) 63 Cal.2d 740, which "supports an important, contextually specific qualification to the ordinary presumption that statutes operate prospectively: When the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute's operative date." (People v. Brown (2012) 54 Cal.4th 314, 323, fn. omitted.) "Senate Bill 1437 is not silent on the question of retroactivity. Rather, it provides retroactivity rules in section 1170.95. The petitioning procedure specified in that section applies to persons who have been convicted of felony murder or murder under a natural and probable consequences theory. It creates a special mechanism that allows those persons to file a petition in the sentencing court seeking vacatur of their conviction and resentencing. In doing so, section 1170.95 does not distinguish between persons whose sentences are final and those whose sentences are not. That the Legislature specifically created this mechanism, which facially applies to both final and nonfinal convictions, is a significant indication Senate Bill 1437 should not be applied retroactively to nonfinal convictions on direct appeal." (People v. Martinez (2019) 31 Cal.App.5th 719, 727.) "Section 1170.95's allowance for the presentation of new evidence to demonstrate whether a petitioner is eligible for relief is further evidence the Legislature did not intend to make relief eligible on direct appeal, as appellate courts are not equipped to accept new evidence and make factual findings. It is clear the Legislature did not make entitlement to relief automatic. They intended it to depend on factual findings made by trial courts." (People v. Cervantes (2020) 46 Cal.App.5th 213, 224.) W...

Stein v Alameda County Waste Management Authority

The following is marked on the page: "In addition to air quality regulations, it is also assumed the project would comply with CCR Title 14, Division 7, Chapter 3.1, Article 3, Compostable Materials Handling Operations and Facilities Regulatory Requirements. Specifically, the project would comply with the requirements of Section 17863.4 to have an Odor Impact Minimization Plan. It is assumed that compliance with the plan, in addition to the design of the facilities (i.e., enclosed buildings), would result in controlling odor emissions." There is no way of knowing who did the marking. The page cited is in a fourpagelong section titled "Regulatory Setting," which outs the extensive federal, state, and local Stein may have meant to cite page 843, where is the following:"Construction and operation of the project would result in emissions of criteria pollutants and air toxics. Construction of the project would create a shortterm increase in emissions, however, the emissions would be less than the BAAQMD thresholds. Therefore, construction would be consistent with the BAAQMD air quality plans."Operation of the project would be anticipated to generate criteria pollutant and air toxics emissions. It is assumed that fugitive dust from onsite unpaved roads would be controlled following current permit conditions . . . . Operation of the project would be consistent with the BAAQMD 2010 CAP."Finally, on pages 844845, is the following: "As shown in Table 34, emissions would be less than the BAAQMD thresholds except for daily emissions of PM10 and PM2.5. [¶] The exhaust PM10 and PM2.5 emissions would be much lower than the BAAQMD thresholds." Because these conditions could be mitigated, one of the four air quality criteria was determined to have "No Impact," while the other three were deemed to have a "Less Than Significant Impact."

People v Jackson 1

The question is whether there is substantial evidence that the bullet hole was caused by a bullet that came from a third party causing the SUV to crash. I submit there is no substantial evidence that the bullet came from a third party but there is overwhelming evidence that it came from the SUV containing defendant and his companions. The majority correctly identifies the evidence demonstrating the bullet hole came from the suspect vehicle—the SUV. Officer Silva opined that the bullet hole was caused by a bullet fired from the SUV. The majority summarize Officer Silva's testimony as follows: "Police Officer Silva, who examined the SUV, estimated the bullet hole was made by firing a gun held about two feet above the SUV roof. Officer Silva testified he believed the bullet was possibly fired by someone just outside the passenger side, rear door of the SUV, from overhead, toward the left, front, driver's side. In Officer Silva's opinion the right rear passenger fired a handgun as the SUV was traveling southbound on Blackstone. He further determined the bullet travelled at a downward angle as it entered into the top of [the] SUV roof from outside the SUV. The bullet originated from northwest of the bullet hole and traveled in a southeasterly direction. It then went through the roof just above the driver's head, went back into the roof headliner, and may have been trapped in there or exited. Officer Silva was unable to determine the exit point of the bullet or find the spent round. He did not know if the spent round remained inside the SUV."

Bolger v Amazoncom

In a similar vein, Amazon argues that sellers have control over a product, and "control is the touchstone for product liability." To support this proposition, Amazon quotes O'Neil, supra , 53 Cal.4th at page 349, 135 Cal.Rptr.3d 288, 266 P.3d 987 : "It is fundamental that the imposition of liability requires a showing that the plaintiff's injuries were caused by an act of the defendant or an instrumentality under the defendant's control." O'Neil has no application here, since it involved an attempt to hold a manufacturer responsible for defects in another manufacturer's product. ( Ibid. ) Unlike Amazon, the defendant in O'Neil had no involvement with the other manufacturer's product and was not part of the product's chain of distribution. ( Id. at pp. 349-350, 135 Cal.Rptr.3d 288, 266 P.3d 987.) But accepting the quoted statement at face value, it does not support Amazon's position. Amazon had control over both the product at issue and the transaction that resulted in its sale to Bolger. It constructed the Amazon website, accepted Lenoge as a third-party seller, marketed Lenoge's offer for sale, took possession of the replacement battery, accepted Bolger's order for the battery, billed her for the purchase price, and shipped her the battery in Amazon-branded packaging. But for Amazon's own acts, Bolger would not have been injured. Amazon's own acts, and its control over the product in question, form the basis for its liability. Amazon relies heavily on the suggestion that it did not choose to offer the Lenoge replacement battery for sale. It is true that an Amazon employee does not appear to have selected the Lenoge replacement battery for sale, to the exclusion of other competing replacement batteries. But that fact is not determinative here for two reasons. First, regardless whether Amazon selected this particular battery for sale, it chose to host Lenoge's product listing, accept Lenoge into the FBA program, take possession of the battery, accept Bolger's order...

People v Camphor

Defendant contends Vaquera is unpersuasive because it relies on two cases, People v. Thomas (1987) 43 Cal.3d 818 and People v. Tennard (2017) 18 Cal.App.5th 476, neither of which support its holding. In Thomas, the court explained descriptive charging language can give sufficient notice, even if the statutory basis of a crime is not alleged. (Thomas, supra, at pp. 827-828.) In Tennard, a special allegation describing the defendant's prior strike as "rape by force" and a violation of section 261, subdivision (a)(2) was sufficient to identify it as a super strike, and a reference to section 667, subdivision (e)(2)(A), which in turn referred to the disqualifying exception of section 667, subdivision (e)(2)(C), was sufficient to put the defendant on notice the exception might apply. (Tennard, supra, at pp. 487-488.) Defendant argues these cases are inapposite because "[n]othing in the descriptions of the one strike allegations" in this case notified defendant the prosecution would seek longer sentencing based on the age of the victims. (Italics added.) But as discussed above, section 667.61, subdivision (b) specifically references subdivision (j), putting defendant on notice he would be subject to an enhanced sentence based on the age of the victims. We also find defendant's citation to People v. Tardy (2003) 112 Cal.App.4th 789 unavailing. Though Tardy stated "[f]acts alleged and proven as part of the substantive crime charged cannot support a sentencing enhancement," it cited to Mancebo for that principle, a case which for reasons discussed above is distinguishable. (Tardy, at p. 789.) Moreover, the Tardy court itself distinguished Mancebo and, thus, its commentary on that principle is dicta.

DSouza v DSouza In re Marriage of DSouza

On appeal, Dixie frequently relies on the inapplicability of the doctrine of implied findings, arguing that the family court erred in failing to make specific findings in response to her objections to the court's two tentative statements of decisions. However, the issuance of a properly requested statement of decision will avoid an application of the doctrine of implied findings in a nonjury trial only if "both steps of the two-step procedure under [Code of Civil Procedure] section[s] 632 and 634" are followed. (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 983 (Thompson).) Here, the record contains what appear to be Dixie's timely objections to the family court's tentative statements of decisions in phases two (trial on reserved issues) and three (trial on attorney fees, costs, and sanctions) as required by Code of Civil Procedure section 634; and Dixie's objections appear to set forth the issues and arguments which she presents on appeal. However, Dixie has not directed us to any Code of Civil Procedure section 632 request for a statement of decision, and "[t]he second step is not a substitute for the first. Objections [under section 634] are germane only as to issues framed as materially controverted under section 632." (Thompson, supra, 6 Cal.App.5th at p. 982.) "[S]trict adherence to both steps of the process is necessary before we will reverse the presumption of correctness generally accorded trial court judgments on appeal." (Id. at p. 983.)"[T]he burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment." (Jameson v. Desta (2018) 5 Cal.5th 594, 609.) Here, Dixie does not mention, let alone provide a record reference for, a request for a statement of decision from either of the trials at issue in her appeal. On this basis alone, the doctrine of implied findings should apply. (Thompson, supra, 6 Cal.App.5th at p. 983.) Nonetheless, an in...

Rosciszewski v Matsumoto Rosciszewski In re the Marriage of Rosciszewski

Nevertheless, to the extent the above general rule does not apply to Jan's contention that the trial court incorrectly applied the law, we conclude he has not carried his burden on appeal to affirmatively show the court did, in fact, incorrectly apply the law on undue influence in marital dissolution proceedings. Although Jan concedes that no statute requires, and no case has held, that Welfare and Institutions Code section 15610.70's definition of undue influence, or the factors listed therein, must be considered by a trial court in proceedings to divide marital property under the Family Code, he asks that we make such a pronouncement of law in disposing of his appeal. We decline to do so. First, the Legislature has not expressly provided that Welfare and Institutions Code section 15610.70's definition of undue influence applies to proceedings under the Family Code or, in particular, to section 721. If the Legislature had intended Welfare and Institutions Code section 15610.70's definition of undue influence to necessarily apply to section 721 or other determinations under the Family Code, it presumably would have expressly so provided. By comparison, we note that the Legislature expressly provided that Welfare and Institution Code section 15610.70's definition of "undue influence" applies to proceedings under the Probate Code. Probate Code section 86 provides: " 'Undue influence' has the same meaning as defined in Section 15610.70 of the Welfare and Institutions Code. It is the intent of the Legislature that this section supplement the common law meaning of undue influence without superseding or interfering with the operation of that law." (See also, Lintz, supra, 222 Cal.App.4th at p. 1356, fn. 3 [noting that Prob. Code, § 86 was enacted together with Welf. & Inst. Code, § 15610.70, both of which were effective January 1, 2014].) Because the Legislature has not also so expressly provided that definition applies to Family Code proceedings, we presume the Legisla...

Aljabban v Fontana Indoor Swap Meet

We draw further support for our reading of the statutory language when we compare the statutory provision that governs how security deposits may be applied in residential leases. Civil Code section 1950.5, subdivision (e) states that a security deposit in a residential lease may be applied by the landlord for "only those amounts as are reasonably necessary" for the following purposes, specified in subdivision (b): "(1) The compensation of a landlord for a tenant's default in the payment of rent. [¶] (2) The repair of damages to the premises, exclusive of ordinary wear and tear, caused by the tenant or by a guest or licensee of the tenant. [¶] (3) The cleaning of the premises upon termination of the tenancy necessary to return the unit to the same level of cleanliness it was in at the inception of the tenancy.... [¶] (4) To remedy future defaults by the tenant in any obligation under the rental agreement to restore, replace, or return personal property or appurtenances, exclusive of ordinary wear and tear, if the security deposit is authorized to be applied thereto by the rental agreement." ( Civ. Code, § 1950.5, subd. (b).) The first three uses of the security deposit in Civil Code section 1950.5, subdivision (b) (i.e. , to cover defaulted rent, repairs to the premises and cleaning the premises) are the same as the three uses identified in Civil Code section 1950.7, subdivision (c). But the two statutes are different in that Civil Code section 1950.5, subdivision (b) does not include the proviso, which is present in Civil Code section 1950.7, subdivision (c), that "the payment or deposit is made for any or all of those specific purposes. " (Italics added.) Instead, Civil Code section 1950.5 simply provides that "[t]he landlord may claim of the security only those amounts as are reasonably necessary for the purposes specified in subdivision (b)." ( Civ. Code, § 1950.5, subd. (e).) " ‘ " ‘Where a statute, with reference to one subject contains a given provision, the...

Tran v Eat Club

Further, "an out-of-court statement can be admitted for the nonhearsay purpose of showing that it imparted certain information to the hearer, and that the hearer, believing such information to be true, acted in conformity with such belief. [Citation.]" (People v. Montes (2014) 58 Cal.4th 809, 863; see Evid. Code, § 1200 [hearsay rule].) Tran made statements concerning (1) the content of the April phone call—in which unknown callers claiming to represent Eat Club employees informed her that they were bringing a lawsuit against the company for its wage and other violations and that she would be subpoenaed to testify as a witness in that case; (2) her understanding that Eat Club had been engaging in systemic Labor Code and other violations; and (3) her awareness that, during the period of April 24, 2018 to May 30, 2018, employees were threatening imminent litigation against Eat Club due to such violations. Those statements were relevant and admissible for nonhearsay purposes. (See Evid. Code, §§ 210, 1200, subd. (a).) They were relevant to show that when Tran discussed the litigation that was the subject of the April phone call with CFO Rodriguez on May 31, 2018, Tran anticipated in good faith being subpoenaed as a witness in a lawsuit being brought by other employees against Eat Club—which suit was being seriously contemplated in good faith, if not already underway. The trial court did not abuse its discretion by overruling Eat Club's "conclusory opinions" objection to Tran's statement regarding threatened employee litigation.

Orange County Social Services Agency v AB In re IB

We take a moment to briefly summarize the instability the boys have experienced for the past three years in four different placements, because it is relevant to our later analysis of the court's ruling. The boys stayed in their first group home (Boys Town) for only six months and SSA was having difficulty finding a foster home. In August 2017, the boys temporarily lived in a foster home, but were removed after only one month due to A.B.'s behavioral issues. Next, the boys were placed in a group home where they remained until February 13, 2019. In those 16 months, SSA could not find a suitable placement due to A.B.'s behavioral problems. Starting in July 2018, SSA began to regularly submit 15-day review reports about failed efforts to find a foster home. Before the 18-month review hearing held in September 2018, SSA had filed seven 15-day review reports stating SSA was unable to find a suitable placement. In the months leading to the permanency hearing, scheduled in January 2019, SSA filed seven more 15-day review reports about the inability to find a suitable placement because of A.B.'s behavioral problems. In the January 2019, 15-day review report (the 14th report filed), SSA noted the group home's "house parents" agreed to taking the children under an "emergency placement." In the social worker's next report prepared for the permanency hearing, he requested a 30-day continuance to place the boys with prospective adoptive parents. The court continued the case and the boys remained in the group home because the foster parents previously lived out of state which led to a delay in approving the adoptive placement. SSA requested a hearing in its next 15-day review but on January 16, 2019, the social worker reported a suitable home was not yet available. The court ordered an emergency placement into the care of the foster parents. In February 2019, the children were placed with the foster parents. Because the boys had worked with the house parents for two years, the b...

People v Rivera

Regardless of whether or not the evidence about Macias's tattoo represented testimonial hearsay, we can nevertheless conclude that any error was harmless beyond a reasonable doubt. (See Sanchez, supra, 63 Cal.4th at pp. 670-671 [setting forth harmless error standard for a constitutional violation].) Setting aside the testimony about Macias's tattoo, the prosecution otherwise established with admissible evidence that appellant had a gang affiliation. Cardoza based his opinion on the evidence recovered from appellant's garage, which referenced East Side Varrio, Norteños, and "scrap killer." Cardoza also focused on appellant's prior use of the word scraps, which indicated that she "has some affiliation, some association, or some goings on with the [Norteño] group." He noted that she had affiliation with two known gang members, her son and Zavala. Based on the hypothetical presented to Cardoza, the admissible evidence also conclusively demonstrated that appellant threatened M.M. in order to benefit the Norteño street gang, including all of its local subsets: (1) the East Side Varrio Poros; (2) VCP; (3) West Side; and (4) West Side Poros. Consequently, we can declare that any error regarding the testimony about Macias's gang-related tattoo, or Macias's alleged gang membership, was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24.) As such, it was likewise harmless when Cardoza opined that, in part, appellant's gang affiliation was based on her affiliation with Macias. In other words, the error regarding the testimony about Macias's tattoo was unimportant in relation to everything else the jury considered regarding appellant's gang affiliation. Likewise, this error was unimportant regarding whether she committed the charged crime to benefit a criminal street gang. (See People v. Neal (2003) 31 Cal.4th 63, 86 [setting forth standard to review harmless error].) Accordingly, reversal is not required based on Azevedo's testimony about Mac...

Running v City of Azusa

The third amended complaint alleged a number of tortious acts purportedly committed by CICO and SGRWC. However, as to the McIntyres specifically, the pleading alleged only that, as directors of CICO and members of SGRWC, they were liable for those entities' misconduct. In their motion for summary judgment/summary adjudication, the McIntyres provided evidence CICO made the decision to close the canal and argued they could not be held liable for that decision merely by virtue of their positions as CICO directors. (See Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 508 ["[t]o maintain a tort claim against a director in his or her personal capacity, a plaintiff must first show that the director specifically authorized, directed or participated in the allegedly tortious conduct [citation]; or that although they specifically knew or reasonably should have known that some hazardous condition or activity under their control could injure plaintiff, they negligently failed to take or order appropriate action to avoid the harm"]; Balsam v. Trancos, Inc. (2012) 203 Cal.App.4th 1083, 1110 [directors "'"do not incur personal liability for torts of the corporation merely by reason of their official position, unless they participate in the wrong or authorize or direct that it be done"'"].) William's membership on SGRWC's board, without more, is similarly insufficient to impose personal liability on him. (See Corp. Code, § 18605 ["[a] member, director, or agent of a nonprofit association is not liable for a debt, obligation, or liability of the association solely by reason of being a member, director, officer or agent"]; Corp. Code, § 18620, subd. (a)(1), (2) [member, director, officer, or agent of nonprofit association liable if he or she expressly assumes liability or engages in tortuous conduct that causes the injury or harm].) Running presented no evidence in opposition and cites none on appeal to support the McIntyres' liability apart from their status as direc...

LA County Department of Children and Family Services v E W In re JW

DCFS also filed a section 300 petition on May 22, 2018. The petition contained three allegations under subdivision (b). Count b-1 alleged that mother placed J.W. in "a detrimental and endangering home situation" and placed her at risk of serious physical harm, damage, and danger by failing to properly secure A.P.'s medication. Count b-2 alleged that father "has a history of mental and emotional problems, including a diagnosis of anxiety and depression which renders the father unable to provide regular care and supervision of the child. In 2018, the father displayed erratic behaviors. Such mental and emotional condition on the part of the father endangers the child's physical health and safety and places the child at risk of serious physical harm, damage, and danger." Count b-3 alleged that father "placed the child in a detrimental and endangering situation in that in 2018, the mother and the father have engaged in an ongoing custody dispute, which includes the father making continuing accusations that the mother is abusing and neglecting the child. The father subjected the child to numerous unnecessary interviews with social workers, law enforcement officers, and doctors, as a result of father's allegations of abuse to the child by the mother. The detrimental and endangering situation created for the child by the father and the mother, places the child at substantial risk of suffering serious emotional damage as evidenced by severe anxiety, depression, withdrawal and aggressive behavior towards herself and others."

People v Cardenas

K.R. was a juvenile delinquency case in which the minor raised an Arbuckle objection at disposition, but the trial court rejected the claim. ( K.R., supra , 3 Cal.5th at p. 303, 219 Cal.Rptr.3d 451, 396 P.3d 581.) The Court of Appeal too denied relief on the ground that the minor " ‘failed to show that he entered into the plea agreement in expectation of and reliance upon’ having the same judge who took his plea also preside at sentencing." ( Id. at p. 298, 219 Cal.Rptr.3d 451, 396 P.3d 581.) The Supreme Court reversed, explaining that Arbuckle means what it says: "[A] defendant's negotiated plea agreement necessarily include[s] an implied term that the same judge who accepted his plea would preside at sentencing," unless the parties expressly agree to the contrary. ( K.R. , at pp. 305-306, 219 Cal.Rptr.3d 451, 396 P.3d 581.) The Supreme Court also criticized several prior Court of Appeal cases, which purported to limit Arbuckle by finding the same-judge right was included in the plea agreement only if the record contained evidence of "the parties' actual intent" to include such a term, or evidence showing the defendant had "a reasonable expectation he would be sentenced by the same judicial officer who accepted his negotiated plea." ( K.R. , at p. 307, 219 Cal.Rptr.3d 451, 396 P.3d 581.) Because the minor in K.R. objected on the basis of Arbuckle at disposition, the Supreme Court did not discuss whether failure to raise such an objection would result in forfeiture. Bueno nonetheless concluded that K.R. rejected the forfeiture rule, for the following reasons: In K.R. , the People argued that "a pleading defendant (or juvenile) can protect their Arbuckle rights by striking an express agreement to have the same judge preside at both change of plea (admissions) and sentencing (disposition)." ( K.R., supra , 3 Cal.5th at p. 312, 219 Cal.Rptr.3d 451, 396 P.3d 581.) The Supreme Court rejected the argument and observed that "[t]o the extent the People seek to place the b...

Frausto v Department of the California Highway Patrol

In Giraldo, supra, 168 Cal.App.4th 231, 85 Cal.Rptr.3d 371, we held there is a special relationship between a jailer and prisoner. "It has been observed that a typical setting for the recognition of a special relationship is where ‘the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff's welfare.’ ( Kockelman v. Segal (1998) 61 Cal.App.4th 491, 499 , citing Prosser & Keeton, Torts (5th ed.1984) § 56, p. 374.) Thus, and as our Supreme Court has noted, a special relationship has been found to exist between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees, and also between common carriers and passengers, innkeepers and their guests, and mental health professionals and their patients. ( Delgado [v. Trax Bar & Grill (2005) ] 36 Cal.4th [224,] 235–236 [30 Cal.Rptr.3d 145, 113 P.3d 1159].)" ( Giraldo, at pp. 245–246, 85 Cal.Rptr.3d 371.) "[I]mportant factors in determining whether a relationship is ‘special’ include vulnerability and dependence. Prisoners are vulnerable. And dependent. Moreover, the relationship between them is protective by nature, such that the jailer has control over the prisoner, who is deprived of the normal opportunity to protect himself from harm inflicted by others. This, we conclude, is the epitome of a special relationship, imposing a duty of care on a jailer owed to a prisoner." ( Id. at pp. 250–251, 85 Cal.Rptr.3d 371.) The parties have not cited, and we are not aware of, any California cases discussing the special relationship concept in the context of an arrestee —an individual who has been taken into custody but not yet booked into a jail or other correctional facility. (See § 844.) The Ninth Circuit, however, recently applied our reasoning in Giraldo to the arrest context, predicting that the California Supreme Court would conclude a "similar relationship exists between a law enforcement officer and an a...

People v Williams 1

Assuming this issue is preserved for review because Williams did not object based on prosecutorial error, but instead based on violating the trial court's pretrial ruling, we conclude the prosecutor did not commit error. Williams stresses that in his in limine motion he sought to exclude his booking photograph and the six-pack photograph lineup. It is true that in his motion he refers to the unflattering photograph depicting him sullen and in jail clothes and the final sentence of the motion "requests an order excluding his booking photograph." But he also repeatedly stated the basis for excluding the evidence was it depicted him with five other menacing men who were dressed in jail clothing and the jury would conclude he was guilty by association. And at the hearing Williams's counsel made that same argument. All of the motion headings reference the six-pack photograph. Nowhere does the motion indicate Williams sought to exclude (1) the booking photograph, and (2) the six-pack photographic lineup, like Williams now does in his appellate briefing. Williams's written motion and his oral arguments render the trial court's statement its pretrial ruling was limited to the six-pack photograph and the prosecutor did not violate the order reasonable.

Silbermann v Shangri La Construction LP

By contrast, there was insufficient information for Shangri-La to evaluate Silbermann's claim for additional floor coring and overhead and elevator pit coring work (parts III and IV). Although Reyes authorized Silbermann to charge $56.25 per hour in the December 29, 2015 letter, Silbermann based his demand at trial on Reyes's agreement in January 2016 to pay Silbermann $102.50 for each deeper core and $142.50 for each deeper square cut, not the amount approved in the December 29 letter. At trial Silbermann testified he drilled a total of 2,808 cores and 416 cuts that were deeper than 11 inches. But there is no evidence in the record Silbermann advised Shangri-La of the number of deeper cores and cuts he had drilled other than letters he sent on January 27 and February 9, 2016 seeking payment based on 475 holes and 200 cuts deeper than 11 inches that he had drilled by the date of the letters. Further, the jury rejected Silbermann's methodology for valuing the coring work when it awarded him $158,818.75, a sum that corresponded exactly to a written request Silbermann made to Shangri-La's accounting department seeking payment for "extra coring charges" for the period December 2015 through May 9, 2016. There is no evidence when Shangri-La received this request (although it was sometime after May 9, 2016, the date of the last invoice reflected on the request), and Silbermann does not contend this invoice constituted a valuation of his coring work. To the contrary, Silbermann at trial sought nearly twice as much in damages as to parts III and IV of the special verdict form. Under these circumstances, Shangri-La could not have reasonably ascertained Silbermann's damages for additional coring prior to the verdict. (See Polster, Inc. v. Swing, (1985) 164 Cal.App.3d 427, 435 [striking prejudgment interest award on lessor's judgment against tenant where lessor's pretrial letters to tenant identifying items of property damage were insufficient for tenant to ascertain money da...

De Molina v Glasswerks LA

The trial court did not abuse its discretion. Declarations supporting a motion for summary judgment must rely on "personal knowledge." (§ 437c, subd. (d); see also Evid. Code, § 702, subd. (a) ["the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter"].) Landeros stated in the first paragraph of his declaration that he had personal knowledge of the facts stated in his declaration. Although a recital that a declaration is based on personal knowledge may be disregarded "where a basis in personal knowledge does not otherwise appear" in the declaration (see Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 692 fn. 1), that is not the case here. Landeros stated that he was the "Owner, Vice President/CFO" of PRL, and that he was "intimately familiar with the manufacturing and sales activity for both PRL Glass and PRL Aluminum during the relevant time period (1993-2014)." He further stated, "I have been in the finished glass production industry since 1989, and in that time I have personally fabricated glass products, supervised the production of fabricated glass products, and have developed and maintained relationships with our customers, including Lucky Glass, Inc." Landeros's declaration therefore supports his statement that he has personal knowledge of the facts stated.

People v Beal

A more complete recitation of the court's admonition is as follows: "[Y]ou continually—you accused me of being biased, and you stated at the end, 'I think I know why,' at one point. "You're obviously threatening to me. You turned around and said, 'At least I have a witness here.' You automatically turned around and motioned to your colleague. When you made those comments, you raised your voice beyond what you normally do, very, very loud, very, very aggressive."You pointed your finger at me and waved it at me repeatedly. At one point while standing, you stomped your foot several times. You accused me of turning my head. I did it immediately upon—I looked away from you the moment you began attacking my judicial integrity."I've repeatedly warned you. You've done that repeatedly. When we've been away from the jury, you repeatedly attack my judicial integrity. Those comments are contemptuous, and I'm not going to respond to them, because you're not allowed by law to make them. So there is no reason for me to respond to them."There's a case I've cited already at length to you twice, People versus Chong, [citation]. There's also in re Lawrence Buckley, [citation]." 'The settled law of the state, if an attorney commits a direct intent that impugns the integrity of the court made in open court either orally or in writing, insolence to the judge and the forward insulting words or conduct, the court has judicially recognized in the commonlaw as constituting grounds for contempt." 'The judge of the court is well within its rights to protecting his own reputation from groundless attacks upon his judicial integrity, and it is his duty to protect the integrity of the court. However willing he may be to forego the private injury, the obligation upon him by his oath to maintain the respect due to the court in which he presides.'"Also, Sacher versus United States, 343 US 1, at page 9. 'If the ruling is adverse, it is not counsel's right to resist it or to insult the judge. His righ...

People v DeCasas

More on point, of course, is Vasquez , which addressed the same reduction of the SVP unit staff and corresponding increase in attorney caseloads that is involved in this case. In Vasquez , the trial court concluded that " ‘[t]he dysfunctional manner in which the [p]ublic [d]efender's [o]ffice handled ... Vasquez's case was precisely the type of systemic or institutional breakdown contemplated by Brillon and Williams . Accordingly, the reason for the delay in bringing the case to trial should be attributed to the state, and not to ... Vasquez.’ " (Vasquez , supra , 27 Cal.App.5th at p. 73, 238 Cal.Rptr.3d 14.) In particular, the court pointed to evidence that Vasquez's appointed counsel "was hampered in her preparation for trial by the dramatic staffing cuts in the office, which limited the time she could spend on Vasquez's case. As a result, over the two-year period starting at the end of 2014, there was at best sluggish progress in moving Vasquez's then 14-year-old case to trial." ( Id. at p. 72, 238 Cal.Rptr.3d 14, fn. omitted.) Although the court acknowledged that, generally, "the public defender's office must have the flexibility to decide when it is necessary internally to change the assignment of an attorney" ( id . at p. 73, 238 Cal.Rptr.3d 14 ), under the circumstances in Vasquez's case, that "flexibility must yield to the individual's right to a timely trial." ( Id. at p. 74, 238 Cal.Rptr.3d 14.) We agree with the Vasquez court's analysis and conclusion, and the instant case cannot be meaningfully distinguished. Although the People argue that the record in Vasquez included more instances of Shenkman, the deputy public defender in that case, complaining to the court about the staff reductions and her increased caseload than Santiago did in this case, the number of attorney complaints is not dispositive. As the court noted below, Santiago testified that "it was a well-known fact in the courthouse that staffing cuts were ongoing and that attorneys were delayin...

People v Magee

Section 646.9, subdivision (a), which proscribes stalking, provides, "Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking ...." The jury found defendant violated subdivision (b) of section 646.9, which provides greater punishment for "[a]ny person who violates subdivision (a) when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior described in subdivision (a) against the same party...." Section 422, which proscribes making criminal threats, is violated when a defendant "willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety...." (§ 422, subd. (a).)

People v Castellanos

After reviewing the entire record, we cannot conclude beyond a reasonable doubt that the jury verdict would have been the same if the court had instructed the jury that to convict Castellanos on count 6, the jury must find that when he raped Norma with the baseball bat, he threatened her with future retaliation such as kidnapping, false imprisonment, the infliction of extreme pain, bodily injury, or death (to Norma or someone else), and there was a reasonable probability he would carry out the threat. Norma testified that in general, Castellanos would tell her he would hurt her or her family, or she would be taken away from her family, and she believed him, scared of what he might do. The People argue "[s]uch fear, when the evidence is considered in its entirety, could reasonably have arisen from appellant's express or implied threats to inflict extreme pain as he in fact did." But we apply a much higher standard than whether a jury could reasonably conclude that Norma's fear arose from Castellanos's threats to retaliate. Instead, it must be clear to us beyond a reasonable doubt that a rational jury would have so concluded. (People v. Merritt (2017) 2 Cal.5th 819, 831.) An instructional error omitting an element of the offense "will be deemed harmless only in unusual circumstances, such as where each element was undisputed, the defense was not prevented from contesting any [or all] of the omitted elements, and overwhelming evidence supports the omitted element." (Id. at p. 828, italics added.) " 'Our task, then, is to determine "whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element." ' " (People v. McCloud (2017) 15 Cal.App.5th 948, 957.)

Stahl Law Firm v Apex Medical Techs 1

Without any evidence regarding the opinions offered by the experts that did testify in the Patent Litigation, the jury in the Malpractice/Fee Litigation had no way to know whether the additional testimony of Soika, Heines, and De Fazio would have had any impact on the outcome of the litigation. More importantly, the jury had no way to know if there was a void in the expert testimony that was presented at trial in the Patent Litigation that Soika, Heines, and De Fazio would have filled. If, for example, the experts that did testify in the Patent Litigation offered essentially the same opinions that Soika, Heines, and De Fazio offered in the Malpractice/Fee Litigation, the testimony of Soika, Heines, and De Fazio would not have changed the outcome. Accordingly, the testimony of Soika, Heines, and De Fazio was not sufficient, on its own or in combination with Murphey's testimony regarding Stahl's errors, to support a finding that the Zone Defendants would have received a more favorable outcome in the Patent Litigation absent Stahl's errors. (See Mattco, supra, 52 Cal.App.4th at pp. 831-832, 837; Piscitelli, supra, 87 Cal.App.4th at p. 973; SiRF Technology, Inc. v. Orrick Herrington and Sutcliffe LLP (N.D.Cal., June 22, 2010) 2010 WL 2560076 at * 12, 16 (SiRF) [evidence regarding supplemental expert reports excluded in patent infringement action as a result of alleged legal malpractice insufficient to prove causation absent evidence that the outcome of the litigation would have been different if the reports had been submitted].)

Wessels v Read

At the outset, we note that the first cause of action for breach of fiduciary duty does not reference the directors' involvement in signing the 2012 Form 10-K as a basis for their personal liability. Nevertheless, in the demand futility allegations of the complaint, which are incorporated by reference into the first cause of action, the complaint alleges defendants Read, Claflin, Barnes, Eberhart, Chow, Caldwell, and Donofrio "each received regular Board updates throughout 2011 explicitly detailing: (i) [GlobalFoundries'] repeated failures to timely deliver wafers; (ii) [GlobalFoundries'] repeated and 'ongoing' struggles on 'all key factory performance metrics;' (iii) Llano 32nm supply constraints affecting all segments of client business; and (iv) AMD's lack of confidence in [GlobalFoundries'] recovery plan. These defendants were also personally informed in early 2012 by their then-fellow Board member, defendant Muhairi, that product demand was waning. Nonetheless, each of these Director Defendants signed the Company's February 24, 2012 Form 10-K, which misrepresented that [GlobalFoundries'] 'difficulties' only occurred in the third quarter of 2011 and utterly failed to disclose that Llano demand decreased commensurate with the eventual Llano supply increases." We will therefore consider the demand futility allegations with respect to the signing of the 2012 Form 10-K.

Lavitt v Goodwill Retail Industrial

To the extent that Arias and Clemente are arguing there was a conflict of interest between Lavitt and Adams, they rely on cases concluding supervisors were not adequate representatives for the classes that included employees they supervised. (See, e.g., Lampe v. Queen of the Valley Medical Center (2018) 19 Cal.App.5th 832, 850 [putative class representative who was responsible for scheduling meal breaks for other employees was not an adequate meal-break-claim class representative where her interests were "'antagonistic to the remainder of the class'"]; Hughes v. WinCo Foods (C.D.Cal. Jan. 4, 2012) No. ED CV11-00644 JAK (OPx) [2012 WL 34483, p. 7] [denying certification of a class of supervisory and nonsupervisory employees where the "[p]laintiffs assign partial responsibility for labor law violations to their supervisors, and simultaneously seek to represent said supervisors"]; Hadjavi v. CVS Pharmacy, Inc. (C.D.Cal. July 25, 2011) No. CV 10-04886 SJO (RCx) [2011 WL 3240763, p. 6] [supervisory pharmacist who may have been partially responsible for the inability of other pharmacists to take meal breaks was not an appropriate representative for a class of all pharmacists, supervisory and nonsupervisory]; see also Wagner v. Taylor (D.C. Cir. 1987) 836 F.2d 578, 595 [in a race discrimination class action, a supervisor was not an appropriate representative for a class that included nonsupervisory personnel because, "[a]lthough each group shares the interest in freedom from discrimination, potential conflicts may and do arise within a class including both"].) Here, however, one class representative is not attempting to represent class members with whom he has a potential or actual conflict of interest. Lavitt represents the exempt employees, and Adams represents the nonexempt employees. Courts routinely approve the division of a class into subclasses or, as here, separate classes, to resolve potential conflicts between groups of class members. (See Capitol People First v...

People v Horn

On count 1, we need not decide whether Sergeant Impellizeri's testimony was improperly admitted because even were we to assume that the trial court erred in admitting the testimony, it is not reasonably probable that Horn would have obtained a more favorable result in count 1 had Sergeant Impellizeri's testimony on police officer use of force not been admitted. (People v. Prieto (2003) 30 Cal.4th 226, 247 ["The erroneous admission of expert testimony only warrants reversal if 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' "].) As we explained in our previous discussion, because no force or violence is required for the crime of resisting a peace officer (§ 148, subd. (a)(1)), the jury could convict Horn of resisting a peace officer in count 1 by focusing solely on Horn's act of resisting Officer Norris by running across the parking lot, across the street and up the embankment while the officers were yelling for him to stop and had the emergency lights and siren activated on their patrol vehicle. In such a case, there would be no question of whether Officer Norris used excessive force, as he was sitting in his patrol vehicle and did not come into physical contact with Horn until later. Thus, the jury could easily have convicted Horn in count 1 without even considering Sergeant Impellizeri's testimony on police officer use of force. Therefore, regardless of whether Sergeant Impellizeri's testimony was improperly admitted on the issue of police officer use of force, it is not reasonably probable that the jury would have returned a different verdict on count 1 in the absence of that testimony.

Anderson v Kids Included Together

Here, there is substantial evidence supporting the court's finding that Anderson was an independent contractor rather than an employee. First, throughout her time providing services for KIT, Anderson held herself out as an independent contractor, not an employee. Indeed, as late as May 29, 2013, in communications with KIT, she referred to herself as an "outside accountant" and "financial consultant." Anderson signed the ICA, which referred to her as an independent contractor. While providing services to KIT, Anderson retained discretion to decide when she would work. In fact, for a period of time during 2006, Anderson elected not to provide any services to KIT because she was "too busy." Anderson received an annual 1099. Anderson had no set hours working for KIT, but instead, "would come in off hours and on the weekend to do [her] work." That said, she was not required to work at KIT's office and would work from home or even from out of state. On the occasions when Anderson chose to work at KIT's office, KIT did not provide her with her own computer. Rather, she used Couron's computer when Couron was not present. KIT did not provide Anderson with any benefits, including health insurance. Anderson did not have a KIT email address. Nor did she have any KIT business cards. And Anderson provided accounting services to other businesses at the time she provided those services to KIT. This considerable amount of evidence supports the court's factual finding that Anderson was an independent contractor.

Petty v Corcoran Gallery of Art

The Pascal agreement provided the Tyler trust, based on a "determination" made in its "sole discretion," "may terminate all rights of [Corcoran] in the works of art," and that "upon termination of [Corcoran's] rights, [Corcoran] shall return to the Trustees forthwith all of the works of art . . . together with the cash gift . . . ." These conditions, given this specific language in the Pascal agreement, were enforceable under California law as a gift made subject to a condition subsequent. In L.B. Research & Education Foundation v. UCLA Foundation (2005) 130 Cal.App.4th 171, the court held that, "if the donor clearly manifests an intention to make a conditional gift, that intention will be honored. [Citation.] The gift will be construed as one of a fee simple subject to a condition subsequent if ' . . . it is expressly provided in the instrument that the transferee shall forfeit it or that the transferor or his heir or a third person may enter for breach of the condition.'" (Id. at p. 178; accord, City of Palm Springs v. Living Desert Reserve (1999) 70 Cal.App.4th 613, 621 ["the owner of property may transfer it to another on the condition that if the latter should fail to perform a specified act the transferee's interest shall be forfeited either to the transferor or to a designated third party"]; see Walton v. City of Red Bluff (1991) 2 Cal.App.4th 117, 125 ["The owner of property may transfer it, inter vivos or by will, to another person and provide that if the latter should fail to perform a specified act his interest should be forfeited. In such a case the interest of the transferee is subject to a condition subsequent and is not held in trust"].)

SC v Superior Court

What might appropriate rigor look like? Recognizing the limits of our knowledge regarding the feasibility of the following suggestions, a better test of mother during the course of the dependency case could have included: (1) regular consultations by SSA with daughter's neurologist to determine the current prescription dosages and desired range of medication(s) levels in daughter's blood based on trough readings, with a contemporaneous log of this information maintained by SSA and regularly presented to the court; (2) creation of a realistic plan (taking into account the location of daughter's residence and the lab, and the lab's hours of operation) to facilitate the drawing of daughter's blood at a trough period approximately eight hours after the last previous administration of medication; (3) regular blood testing, with drug levels and times of drawing blood reported to SSA and then submitted regularly to the court by SSA in the form of a comprehensive log maintained by SSA; (4) required thrice-daily submission (via phone text message, preferably with video) by mother to SSA of proof of prescription drug administration and the times of such administration, with a comprehensive log of these submissions maintained by SSA and copies of the log submitted to the court regularly; and (5) regular SSA communications with medical providers to ensure attendance at appointments, with a complete log of all such appointments maintained by SSA and submitted to the court regularly. Presumably, there would also need to be prompt consequences and corrective action for deviations from this program by mother, to ensure both the safety of daughter and the integrity of the blood test data. --------

Monster v Beats Electronics

Lee's argument we may disregard the parties' choice of Delaware law to govern the 2013 unit repurchase agreement because Delaware law permitting the enforcement of a nonreliance clause conflicts with this state's fundamental public policy and California's interest in the transaction materially outweighs Delaware's is not persuasive. (See Nedlloyd Lines B.V. v. Superior Court (1992) 3 Cal.4th 459, 470 ["a valid choice-of-law clause, which provides that a specified body of law 'governs' the 'agreement' between the parties, encompasses all causes of action arising from or related to that agreement, regardless of how they are characterized, including tortious breaches of duties emanating from the agreement or the legal relationships it creates"].) Beats was incorporated in Delaware. Accordingly, there unquestionably was a reasonable basis for selection of Delaware law. (See Pitzer College v. Indian Harbor Ins. Co. (2019) 8 Cal.5th 93, 100101 [first step in evaluating enforceability of a contractual choiceoflaw provision is to determine whether the chosen state has a substantial relationship to the parties or their transaction or whether there is any other reasonable basis for the choice].) Indeed, under the internal affairs doctrine, Delaware had an overriding interest in Beats's repurchase of its own shares. (See Grosset v. Wenaas (2008) 42 Cal.4th 1100, 1106, fn. 2 ["[a] conflict of laws principle known as the 'internal affairs doctrine' posits that only one state—usually the state of incorporation—should have the authority to regulate a corporation's internal affairs"]; State Farm Mutual Automobile Ins. Co. v. Superior Court (2003) 144 Cal.App.4th 434, 442 ["'internal affairs' include . . . '"the purchase and redemption by the corporation of outstanding shares of its own stock"'"].)In addition, the split in California authority concerning the validity of a nonreliance provision (compare Fisher v. Pennsylvania Life Co. (1977) 69 Cal.App.3d 506, 511 [enforcing nonreli...

Clear9 Communications v Futurewei Technologies

To state a claim for either negligent or intentional interference with prospective economic advantage a plaintiff "has the burden of pleading and proving that the defendant's interference was wrongful 'by some measure beyond the fact of the interference itself.' " (Della Penna, supra, 11 Cal.4th at pp. 392-393; see Ixchel Pharma, LLC v. Biogen, Inc. (Aug. 3, 2020, No. S256927) 2020 WL 4432623, at *5 (Ixchel); Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1159 (Korea Supply) ["an act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard"].) Further, there must be wrongful conduct that is independent of a breach of contract by the defendant. (See JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 183 (JRS Products) ["a breach of contract claim cannot be transmuted into tort liability by claiming that the breach interfered with the promisee's business"]; Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 516-517 ["The fundamental differences between contract and tort are obscured by the imposition of tort liability on a contracting party for conspiracy to interfere with the contract. Whether or not a stranger to the contract induces its breach, the essential character of a contracting party's conduct remains the same—an unjustified failure or refusal to perform."].) Put another way, damages cannot "be recovered for interference with prospective economic advantage by one contracting party against another based on conduct that would otherwise constitute a breach of the parties' contract." (JRS Products, supra, 115 Cal.App.4th at p. 179.)

People v Chavez 2

But prosecutors can "ask the jury to believe the prosecution's version of events as drawn from the evidence." (Huggins, supra, 38 Cal.4th at p. 207.) And that is true even when prosecutors express their personal belief about what the evidence in the case shows. In Huggins, for example, the "prosecutor argued, regarding the defense's version of events, 'None of this can be true. Please believe me. He has lied through his teeth in trying to sell this story to you.' " (Id. at p. 206.) But although the prosecutor suggested he knew the defense's version of events could not be true, the court found no misconduct in his asking the jury to believe his "version of events as drawn from the evidence." (Id. at p. 207.) Similarly, in People v. Cummings (1993) 4 Cal.4th 1233 (Cummings), abrogated on other grounds in People v. Merritt (2017) 2 Cal.5th 819, the court found no misconduct in the prosecutor saying, " 'I believe,' " " 'I think,' " and " 'I am willing to bet' " during argument. (Cummings, at p. 1303, fn. 48.) Although the defendant contended these comments reflected "the prosecutor's personal opinion about Cummings's guilt and vouched for witness testimony," the court disagreed, finding the comments reflected instead "legitimate inferences that could be drawn from" the evidence. (Ibid.) And likewise in People v. Roberts (1992) 2 Cal.4th 271 (Roberts), the court found no misconduct in a prosecutor's occasional use of "such phrases as 'I know.' " (Id. at p. 310.) Because "the record reveals that every fact to which the prosecutor alluded was supported by some evidence introduced at trial," the court found the prosecutor "did not, in our view, hint that he had access to facts damaging to defendant that were not before the jury." (Ibid.; see also People v. Frye (1998) 18 Cal.4th 894, 971 ["so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the 'facts of [the] record and the inferences reasonably drawn th...

People v Bryant 1

In this case, as in Martinez and Frazier, the facts underlying Bryant's suppression motion relate to his arrest and subsequent release with a certificate of release—facts that were necessarily known to him since the inception of the case and thus were either known, or should have been known, to prior counsel. That Bryant could not personally have brought the motion sooner does not mean that the opportunity to bring the motion did not exist earlier; a suppression motion challenging the seizure could have been brought by Bryant's prior counsel, who was charged with acting on his behalf. Even if Bryant's decision to represent himself was motivated by a disagreement with his prior counsel over whether to file the motion, under Martinez, Bryant and his prior counsel were nevertheless required to act with due diligence in bringing Bryant's motion for self-representation, and there was no showing of such due diligence. Also, a concern much like the one expressed by the Court of Appeal in Frazier pertains here, namely, that if a defendant granted the right to self-representation shortly before trial were thereby excused from complying with the notice requirements of section 1538.5 on the ground that he could not personally have filed the motion sooner, this might encourage gamesmanship in the form of belated Faretta motions. We therefore conclude that the late timing of Bryant's request for self-representation, and his related inability to have personally brought the suppression motion sooner, is not a circumstance that satisfies section 1538.5, subdivision (h).

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