California > Court of Appeal > 2020

California Courts of Appeal | Top Cases | October 2020

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People v Uber Technologies

Keker, Van Nest & Peters, Christa M. Anderson, Rachael E. Meny, R. James Slaughter, San Francisco; Munger, Tolles & Olson, Rohit K. Singla, Miriam Kim, Justin P. Raphael, San Francisco, Jeffrey Y. Wu, Los Angeles, for Defendant and Appellant Lyft, Inc. Gibson, Dunn & Crutcher, Theodore J. Boutrous, Jr., Theane Evangelis, Los Angeles, Blaine H. Evanson, Irvine, Heather L. Richardson, Los Angeles, for Defendant and Appellant Uber Technologies, Inc. Crowell & Moring, A. Marisa Chun, San Francisco, Kayvan Ghaffari, Alice Hall-Partyka, Los Angeles, for Bay Area Council, Earth Sparks, Internet Association, Silicon Valley Leadership Group, and Technet as Amici Curiae on behalf of Defendants and Appellants Lyft, Inc. and Uber Technologies, Inc. Horvitz & Levy, Jeremy B. Rosen, Felix Shafir, Steven S. Fleischman, Burbank, for Chamber of Commerce of the United States of America, California Chamber of Commerce, National Retail Federation, and HR Policy Association as Amici Curiae on behalf of Defendants and Appellants Lyft, Inc. and Uber Technologies, Inc. Willenken, Amelia L. B. Sargent, Los Angeles, Kenneth M. Trujillo-Jamison for California Asian Pacific Chamber of Commerce, California Hispanic Chambers of Commerce, California State National Action Network, CA-NAACP State Conference, Los Angeles Metropolitan Churches, Los Angeles Urban League, National Action Network Sacramento Chapter Inc., National Asian American Coalition, National Black Chamber of Commerce, National Diversity Coalition, National Hispanic Council on Aging, National Newspaper Publishers Association, and Southern Christian Leadership Conference of Southern California ("Communities-of-Color Organizations") as Amici Curiae on behalf of Defendants and Appellants Lyft, Inc. and Uber Technologies, Inc. Durie Tangri, Benjamin B. Au, Raghav R. Krishnapriyan, San Francisco, for Denise Alvarado, Tony Do, Mimi Fan, Victoria Broussard, Jim Pyatt, Daniel Farris, Robert Prather, Howard Tanner, and Independent Drivers A...

People v Jacobs

Defendants were sentenced to lengthy prison terms, and ordered to pay various fees, fines, and assessments. On appeal, they raise numerous claims involving sufficiency of the evidence, admission of evidence, jury instructions, and sentencing. We hold: (1) Substantial evidence supports all challenged convictions and enhancements; (2) Washington's challenge to admission of his prior conviction was forfeited by his failure to object at trial; (3) Defendants are not entitled to reversal for lack of instruction on lesser included offenses on counts 1, 2, and 5; or for lack of a unanimity instruction with respect to the identity of the shooter on counts 1 through 5; (4) Defendants are entitled to a remand to have the trial court exercise discretion with respect to the various firearm enhancements, and Washington is entitled to have the court exercise its new discretion to strike the section 667, subdivision (a) enhancement; (5) Defendants are not entitled to a remand to present evidence and make a record of information relevant to their youth offender parole hearings, because Jacobs had the opportunity to do so and Washington is ineligible for such a parole hearing; and Washington's related equal protection claim lacks merit, and his cruel and/or unusual punishment claim is premature; and (6) Defendants forfeited their challenge to the imposition of monetary obligations by failing to object in the trial court; however, we will modify Jacobs's judgment with respect to the amount of the court operations assessment (§ 1465.8) and the court facilities funding assessment (Gov. Code, § 70373), which were miscalculated. Accordingly, as to Jacobs, we affirm the judgment as so modified. As to Washington, we affirm the judgment. We remand the matter to the trial court with directions to exercise its discretion, as to both defendants, whether to strike any of the firearm enhancements and, as to Washington, whether to strike one or more of the section 667, subdivision (a) enhancemen...

California Casualty Indemnity Exchange v Downs

CCIE also complained in its appellate briefing that: "although [the trial court] bifurcated only the rescission cause of action, the [court] dismissed the balance of [CCIE's] causes of action on the basis that the failure of the rescission eliminated all of the damages claims" and "did not explain why [CCIE] was not entitled to a jury on the misrepresentation and fraud causes of action." This contention was stated without reference to citations in the record or supporting legal argument. Again, we are not required to examine undeveloped claims or to supply arguments for the litigants. (Allen, supra, 234 Cal.App.4th at p. 52.) In any event, our reading of the record reveals that counsel for CCIE led the trial court to believe there would be no need for a jury trial if the recission issue was bifurcated. CCIE's complaint asserted the policy was void and rescinded, or requested an order of rescission, based on fraud and misrepresentation. (See fn. 4, ante.) During the hearing on the pretrial motions, counsel for CCIE discussed CCIE's request for a bench trial. Counsel for Downs objected initially to the late jury trial waiver, arguing, "while there is a discussion of rescission, really what's going on in this case is [CCIE] paid out $500,000 . . . CCIE is trying to get that money back from [Downs], and that's what's going on with the case, a money issue." After discussion about why the jury trial waiver had not been made earlier, counsel for CCIE told the trial court that when he had been previously asked by a different judge at trial setting whether he was requesting a jury or non-jury trial, "I said . . . non-jury trial, Your Honor." When counsel for Downs stated that witnesses would have to testify twice, counsel for CCIE stated that rescission is "a central issue throughout all the causes of action." (Italics added.) He went on to say, "all of the witnesses that I'm aware of would be on this issue of rescission. . . . So I don't know of any witnesses that would be...

American Chemistry Council v Office of Environmental Health Hazard Assessment

ACC argues that, because the findings required by Regulation 25306, subdivision (g) relative to the authoritative body mechanism in large measure parallel those made by DART-IC relative to the qualified experts listing mechanism, OEHHA cannot refuse to consider DART-IC's views as to biological plausibility. However, the statutory and regulatory scheme makes clear, and the parties agree, that there are different listing mechanisms pursuant to Proposition 65. The state's qualified experts listing mechanism and the authoritative body listing mechanism, both found in section 25249.8, subdivision (b), are separate and distinct means by which a chemical may be listed under Proposition 65. Moreover, contrary to ACC's contention, the findings required for each listing mechanism are not parallel. The requirement in subdivision (b) of section 25249.8 relative to the qualified expert's mechanism expressly states a standard of proof and specific information the expert panel must consider; the DART-IC may list when "it has been clearly shown through scientifically valid testing according to generally accepted principles to cause cancer or reproductive toxicity." (Italics added.) That same standard is not expressly tied to the authoritative body mechanism, which requires OEHHA to list the chemical "if a body considered to be authoritative by such experts has formally identified it as causing cancer or reproductive toxicity." ( § 25249.8, subdivision (b) ; see fn. 2, ante .) Thus, as OEHHA points out, DART-IC and OEHHA answer different questions under the two separate listing mechanisms. DART-IC acts as an independent finder-of-fact under the qualified experts listing mechanism. OEHHA, on the other hand, determines whether there was sufficient evidence in the record to support the authoritative body's formal identification of the chemical as a reproductive toxicant. In listing pursuant to the authoritative body mechanism, OEHHA cannot substitute its judgment, or that of DART-IC,...

People v Oberdiear

In this case, standby counsel was stepping into the shoes of a defendant who had repeatedly caused delay by alternating between self-representation and representation by counsel, and waited until moments before opening statements to request that standby counsel take over the case. Oberdiear was "no more entitled to a continuance" when standby counsel was appointed to take over his representation than he was entitled to a continuance when he was representing himself. (See People v. Jenkins, supra, 22 Cal.4th at p. 1039 [no error in conditioning grant of defendant's midtrial Faretta motion on his waiver of a continuance]; People v. Douglas (1995) 36 Cal.App.4th 1681, 1689 ["if the court determines the defendant's request is merely a tactic designed to delay the trial, the court has the discretion to deny the continuance and require the defendant to proceed to trial as scheduled either with his counsel or in propria persona"]; see generally People v. Reed, supra, 4 Cal.5th at p. 1004 [no error in denial of continuance where "trial court did not act arbitrarily in believing that any continuance would impose a significant burden on everyone involved in the trial"]; People v. Alexander (2010) 49 Cal.4th 846, 935 [no violation of due process or effective representation where trial court's denial of continuance "was within the bounds of reason given the defense's apparent lack of diligence as weighed against the length of time the case had been pending and the court's concern that it not continue to drag on"].) As the Supreme Court has observed, however, "not every denial of a request for more time can be said to violate due process, even if the party seeking the continuance thereby fails to offer evidence. . . . Instead, '[t]he answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.'" (People v. Beames, supra, 40 Cal.4th at p. 921.) "'[B]road discretion must be granted tri...

In re Butler

This is not a case about the prosecution's rights or interests. It is a case about its constitutional obligations. As the United States Supreme Court declared in Barker , the state has the duty to bring an accused individual to trial "as well as the duty of insuring that the trial is consistent with due process." ( Barker , supra , 407 U.S. at p. 527, 92 S.Ct. 2182 ; see Dickey v. Florida (1970) 398 U.S. 30, 37–38, 90 S.Ct. 1564, 26 L.Ed.2d 26 ["[a]lthough a great many accused persons seek to put off the confrontation as long as possible, the right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial," italics added].) This duty has been recognized in the forced confinement of alleged SVP defendants as well. ( Litmon , supra , 162 Cal.App.4th at p. 406, 76 Cal.Rptr.3d 122 ["The ultimate responsibility for bringing a person to trial on an SVP petition at a ‘meaningful time’ rests with the government."].) Thus, even if the People had no right to a speedy trial and no particular interest in disturbing the status quo so long as Butler remained detained, the People have a constitutional obligation to ensure that Butler's due process right to a timely SVP trial is met. The People's due process obligation in an SVPA proceeding cannot be defined with precision, as Barker recognized that a speedy trial analysis entails a careful weighing of the different factors and the circumstances of each case. ( Barker , supra , 407 U.S. at p. 533, 92 S.Ct. 2182.) However, certain examples illuminate when the government's conduct may fall on the wrong side of the divide between "diligent prosecution" and "official negligence" in bringing the accused to trial. ( Doggett , supra , 505 U.S. at p. 656–657, 112 S.Ct. 2686.) For example, the prosecutors in both Williams and Vasquez were excused from any culpability for the extraordinary delays in those cases only because they took proactive measures to push the matters tow...

Flagship Theatres of Palm Desert v Century Theatres

The California Supreme Court has not yet addressed the general treatment of vertical restraints under the Cartwright Act, nor has it considered exclusive dealing or vertical group boycott claims more specifically. But California Courts of Appeal generally analyze vertical restraints under the rule of reason. (See Exxon, supra , 51 Cal.App.4th at p. 1681, 60 Cal.Rptr.2d 195 [where an antitrust plaintiff alleges vertical restraints, facts must be pleaded showing "some anticompetitive effect in the larger, interbrand market"]; Bert G. Gianelli Distributing Co. v. Beck & Co. (1985) 172 Cal.App.3d 1020, 1044, 219 Cal.Rptr. 203 ( Gianelli Distributing ) [same], disapproved of on other grounds by Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 46 Cal.Rptr.3d 668, 139 P.3d 56 ; see also Theme Promotions v. News America Marketing FSI (9th Cir. 2008) 546 F.3d 991, 1000 ["California courts have determined that vertical restraints of trade, including exclusive dealing contracts, are not per se unreasonable but instead are subject to a ‘rule of reason’ analysis"] (italics omitted).) And our state Courts of Appeal have also more specifically held that, absent some horizontal component or leveraging of monopoly power, neither exclusive dealing arrangements nor vertical group boycotts are per se violations of the Cartwright Act. (See Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 335, 7 Cal.Rptr.3d 628 ( Fisherman's Wharf ) ["exclusive dealing arrangements are not deemed illegal per se" but rather "tested under a rule of reason"]; Marsh, supra , 200 Cal.App.4th at p. 494, 132 Cal.Rptr.3d 660 [rule of reason applies to "vertical boycott[s]"]; Gianelli Distributing, supra , 172 Cal.App.3d at pp. 1045, 1047, 219 Cal.Rptr. 203 [applying rule of reason to vertical agreement between manufacturer and distributor to shift business away from competing distributer]; see also Antitrust, UCL and Privacy Section, Cal. Lawyers Association, Cal. Antitrust...

People v Perez

A few years later, in Earley, supra, 14 Cal.3d 122, the Supreme Court again considered the retroactive application of its decision in Daniels. In Earley, the prosecution appealed after the superior court granted the defendant's petition for a writ of habeas corpus on the ground that his conduct did not constitute kidnapping for the purpose of robbery as the offense had been construed in Daniels. (Earley, at p. 125.) The facts of the offense were that the defendant had walked up to the side of the victim's car and placed an object through the window, which the victim believed was a gun. The defendant then drove the car about 10 to 13 blocks with the victim as the passenger, before stopping the car and obtaining the victim's wallet and watch, after which defendant ran away. (Id. at p. 126.) Explaining the standard to be applied in determining whether the movement was "'merely incidental to the commission of the robbery,'" the Supreme Court stated that "[b]rief movements to facilitate either robbery or robbery and rape are incidental thereto within the meaning of Daniels" (id. at p. 129) but facilitating movements "that are for a substantial distance rather than brief are not incidental thereto within the meaning of Daniels." (Id. at p. 130.) Analyzing the facts before it, the Earley court found the movement was substantial and therefore "not 'merely incidental to the commission of the robbery' [citation], even though it may have been solely to facilitate the commission of the robbery." (Ibid.) The court rejected the defendant's assertion "that 'when the robber's intent is solely to facilitate the robbery the movement is merely incidental' thereto within the meaning of Daniels." (Id. at p. 130, fn. 11.) Although the Supreme Court disapproved a number of cases containing "language suggesting that movement is not 'merely incidental' to a robbery where the movement is 'necessary' or 'essential' to the commission of the robbery," Ellis, supra, 15 Cal.3d 66 was not one of t...

People v Wilson 1

We acknowledge this case differs from Jacobsen insofar as the technology and procedures that were used by the parties. Unlike Jacobsen , where the FedEx employees visually observed and handed over the same white substance that was later tested by the government, in this case a Google employee did not contemporaneously view Wilson's four photographs before sending them to NCMEC. But we conclude Jacobsen still applies despite these differences resulting from the use of Google's hashing technology. A Google employee did review identical user content—which matched each of Wilson's four images—although this review occurred at some point in the past rather than contemporaneously with the Cybertip report. A "digital fingerprint" was assigned to each of the four images, meaning that Wilson's four images were identical to those in Google's repository of hash values, and no hash values are stored in Google's repository unless at least one Google employee has viewed the content and confirmed it constitutes apparent child pornography. Google did not turn over anything else other than the discrete set of four matching images attached to the Cybertip report; it did not include any larger "files" from which the images were extracted (if any) and it did not include any e-mail body text or header information associated with any of Wilson's files. (Cf. Ackerman, supra , 831 F.3d at pp. 1305-1306 [government agent expanded AOL's private party search because, in addition to opening the attachment that had been flagged as having a matching hash value, it also opened an e-mail and three other attachments that AOL had not opened or processed through its hash value system].) The government was merely reviewing what Google had already found, but in a different format—visually reviewing the photographs with the agent's human eyes versus replicating the computer's generation of a numerical algorithm. Because the assigned numerical values, or "digital fingerprints," are representative of the ...

Olson v Carter Jones Collections

As indicated ante, plaintiff has opted for a settled statement on appeal rather than a reporter's transcript of the oral proceedings before the trial court. Thus, the record before us is not a verbatim account of what happened in the trial court. The record suggests the possibility that, faced with defendants' motion for nonsuit, plaintiff sought to present additional evidence to rebut and to rehabilitate. Plaintiff noted in her memorandum filed in anticipation of defendants' motion for nonsuit that the trial court must allow the plaintiff the opportunity to reopen the case and introduce further evidence. However, in that memorandum she did not actually request that the trial court allow her to reopen her case, to present evidence to rebut, or to rehabilitate witnesses. The minute order for July 7, 2017, indicates that defense counsel formally made an oral motion for nonsuit. However, there is no entry indicating that plaintiff requested the opportunity to present additional evidence to rebut or to rehabilitate witnesses. The court proceeded to consider the parties' arguments on an issue-by-issue basis and to make tentative rulings as to each. This process continued on July 12, 2017, according to the minute order for that date. Again, there is no indication of any request by plaintiff to present additional evidence to rebut or to rehabilitate. According to the settled statement, the trial court "denied [plaintiff] the opportunity to reopen her case, present additional evidence, and/or cure any defects in response to the motion for non-suit." The settled statement also says that the court "did not allow [plaintiff] to reopen her case, and/or to introduce any further evidence." However, the settled statement is ambiguous insofar as it does not specifically state that plaintiff made a request in this regard, let alone "specify what additional evidence would be presented or how the additional evidence would cure the defects in the case." (Consolidated World Investments...

People v Bell

In Boatman, the defendant shot his girlfriend in the face, killing her. (Boatman, supra, 221 Cal.App.4th at p. 1257.) The Court of Appeal concluded there was insufficient evidence to support a first degree murder conviction. (Ibid.) There, the defendant had just been released from jail. After walking home, he spoke with his younger brother for a while and then went to pick up his girlfriend and returned to his house. (Id. at p. 1258.) His older brother's girlfriend was sleeping in the room next to the one in which the victim was shot, and she was "awakened by a '[l]oud screaming' " or " 'loud talking,' " which she could not tell from where it was coming. (Ibid.) A couple of minutes later, she heard a gunshot and then "heard a commotion and screaming; 'it seemed like someone was panicking, like yelling or screaming like out of fear.' " (Id. at pp. 1258-1259.) Defendant stated he and the victim were in his bedroom, when the victim retrieved a gun from underneath defendant's pillow. Defendant "was not worried because he trusted [his girlfriend]," and he "slapped the gun away." (Id. at p. 1260.) He then began teasing the victim with a bug that had landed on her, "causing her to 'scream[] a little bit.' " (Ibid.) When he next turned back to the victim, she had the gun again. He took the gun, which he knew was loaded, away from her, and "cocked the hammer, but did not intend to threaten or shoot her" but rather was " '[j]ust kind of being stupid.' " (Ibid.) The victim then " 'slapped the gun, and as soon as she slapped the gun, the gun went off.' " (Ibid.) Given the fact that defendant had taken the victim not to an "isolated location" but rather to his home, which was occupied by people, all of whom could identify him, there was no evidence defendant left the room to retrieve the gun and "the only evidence regarding his possession of the gun was that he took it away" from the victim, and finally, he testified the shooting was an accident led the court to conclude the ca...

Novaresi v County of Placer

As to the first argument, appellants mischaracterize the conflict. While the traffic study and EIR may reach different qualitative conclusions about the import of the data, they do not conflict in terms of what that data says about quantitative traffic levels. To the extent they interpret the import of the data differently, that difference is the result of a difference in the selection and application of local guidelines governing traffic. "CEQA grants agencies discretion to develop their own thresholds of significance." (Save Cuyama Valley v. County of Santa Barbara, (2013) 213 Cal.App.4th 1059, 1068; see also CEQA Guidelines, § 15064, subd. (b)(1) ["The determination of whether a project may have a significant effect on the environment calls for careful judgment on the part of the public agency involved, based to the extent possible on scientific and factual data"].) "There is no 'gold standard' for determining whether a given impact may be significant." (Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1107.) This is so because, "[a]n ironclad definition of significant effect is not always possible because the significance of an activity may vary with the setting." (Guidelines, § 15064, subd. (b)(1).) The import of a lead agency's role in making qualitative determinations regarding the significance of quantitative data is further reflected by the requirement that the "decisionmaking; body of a public agency shall not delegate . . . [¶] [r]eviewing and considering a final EIR." (CEQA Guidelines, § 15025, subd. (b)(1).) Here, the County properly exercised its authority to determine that a warrant analysis should be applied to the unsignalized intersections rather than a LOS analysis, because the intersections are in a jurisdiction where LOS standards do not control unsignalized intersections. This particular difference between the EIR and traffic study conclusions exemplifies why lead agencies need to make their own final s...

Tilkey v Allstate Insurance

We reach a different conclusion here. First, punitive damages are available in cases where the trier of fact finds slander per se. (See Manguso v. Oceanside Unified School Dist. (1984) 153 Cal.App.3d 574, 200 Cal.Rptr. 535 [libel per se]; Contento, supra , 28 Cal.App.3d at p. 359, 104 Cal.Rptr. 591.) The slander here was self-published, but that does not change access to punitive damages. To be successful with compelled self-publication defamation, a plaintiff already must prove a necessity and a strong compulsion to disclose the statement, and the employer must be able to reasonably anticipate the self-publication. ( Beroiz, supra , 84 Cal.App.4th at p. 497, 100 Cal.Rptr.2d 905 ; Davis, supra , 29 Cal.App.4th at p. 373, 34 Cal.Rptr.2d 438 ; McKinney, supra , 110 Cal.App.3d at p. 796, 168 Cal.Rptr. 89.) The plaintiff also must demonstrate that he actually published the statement. ( Dible v. Haight Ashbury Free Clinics (2009) 170 Cal.App.4th 843, 851, 88 Cal.Rptr.3d 464 ; Live Oak Publishing Co., supra , 234 Cal.App.3d at p. 1285, 286 Cal.Rptr. 198.) As we discussed ante , these requirements mean a plaintiff cannot simply manufacture a defamation claim. Moreover, the focus for punitive damages is not the plaintiff's repetition of the defamatory statement to a prospective employer, but the employer's intent. To recover pecuniary damages, the plaintiff must prove by clear and convincing evidence that an employer has acted with malice, oppression, or fraud. ( Civ. Code, § 3294, subds. (a), (b), & (c).) An affirmative finding on malice or oppression demonstrates that the jury has concluded the plaintiff proved the defendant "acted with the requisite reprehensible motivation ... thereby defeating the qualified privilege" and also that the "defendant[‘s] conduct was also intentionally injurious to, or in conscious disregard of, plaintiff's rights, thereby meeting the heightened requirements of malice (or oppression) necessary to support an award of punitive damages." ( L...

Anton v Barbich Hooper King Dill Hoffman Accountancy

This court granted a motion for judicial notice of documents filed in the superior court to resolve the issue of the missing attachment. Those documents included a declaration of Stephen J. Tulley, the attorney who acted as trial counsel for Defendants. Tulley stated that on February 25, 2016, he received a copy of the minute order and six-page decision on the motion for summary judgment from the superior court clerk via facsimile and he subsequently received by United States Mail the full copy of the minute order and attachments, including the rulings on Defendants' evidentiary objections. The declaration attached a copy of the rulings on the 199 evidentiary objections, which consisted of approximately 80 pages. The objections were organized into three columns. The left-hand column identified the evidence to which the object was being made. The middle column set forth the grounds for the objection. The right-hand column was reserved for the trial courts' ruling on the objection. For objection No. 110 through the last objection, the column for the ruling included the lines "Sustained: ___" and "Overruled: ___." When an objection was sustained or overruled in full, the trial court checked the appropriate line. When an objection was sustained in part, the trial court (1) handwrote "as to strike out" on the line following "Sustained"; (2) drew a line through the objectionable text appearing in the left-hand column; and (3) handwrote "as to rest" on the line following "Overruled." In our view, the rulings partially sustaining some of the objections thoroughly demonstrate the experienced superior court judge conscientiously considered and decided the 199 objections presented. Thus, the trial court's handling of the evidentiary objections does not constitute an abuse of discretion. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 10.301.1, pp. 10-137 to 10-138 ["abuse of discretion for the trial court to issue a blanket ruling on evidentiary...

People v Mitchell

On June 14, 2017, the court served defendant with a domestic violence protective order (§ 136.2) prohibiting him from harassing, striking, stalking, or threatening K.H.; having any personal, electronic, telephonic, or written contact with her; having any contact with her through a third party; and not come within 250 yards of her. The court further ordered defendant not to prevent or attempt to prevent or dissuade any victim or witness from appearing at a hearing, making a report to law enforcement, or testifying. On September 15, 2017, K.H. appeared at a pretrial hearing and requested modification of the existing restraining order so she could have contact with defendant while he was in jail. The prosecutor objected and requested the court defer ruling on the request until after the trial. The prosecutor explained that a prior domestic violence case against defendant was dismissed because defendant dissuaded the victim from cooperating, and the current charges contained a dissuasion count. The prosecutor stated defendant had been calling the victim from jail, and now she wanted to drop the charges and remove the protective order.The court granted K.H.'s request, removed the stayaway order, allowed defendant to have contact with her, and ordered K.H. to appear for trial.

LA Unified School District v Torres Construction

Torres alleged a setoff affirmative defense, and also claimed a setoff in its cross-complaint. In Opposition to Summary Adjudication, appellants claimed Torres's setoff defense precluded summary adjudication because the defense created a triable issue of material fact concerning the amount of LAUSD's damages. More specifically, they contend that by introducing evidence of payments withheld by LAUSD on other jobs, they shifted the burden to LAUSD to disprove these setoffs. Appellants claim the trial court misunderstood the burden of proof and erroneously found the setoff was not applicable because Torres did not file a cross-motion for summary adjudication. To support their claim, appellants quote the trial court as saying: "Where is the motion? Where is the motion for summary adjudication? Where is the motion for summary judgment in which you establish your entitlement to these offsets?" Appellants have taken the trial court's remarks out of context. The trial court stated the amount of the offset had not yet been adjudicated, and that absent a motion for summary adjudication by Torres, the amount of the offset would be determined at the end of the case. When Torres claimed the amount of the offset was undisputed, the court replied: "If it really was undisputed, if they admitted it in their answer to your cross-complaint, then you reduce the judgment." The court even noted that the affirmative defense itself read " ‘In the event this answering defendant is found liable in any manner, ... this answering defendant would be entitled to offsets and credits against any purported damages, if any, allegedly sustained by plaintiff.’ " (Italics added.)

Mandujano v Johnston

Conversely, the record further shows that both of the airbags in the Chevy truck driven by Stephen deployed; that Robert's adult son Adrian described the collision as a "big impact"; that Mr. Vanderpol estimated the Chevy was traveling between about 21 and 25 miles per hour when it struck the Jeep, which was stopped in traffic; that the Chevy was totaled as a result of the accident; that immediately after the accident, Robert complained of back pain, as recorded by Sergeant Williams, and as observed by Robert's wife Michelle; that the day after the accident, Robert went to urgent care complaining of back pain; that before the collision, there was no evidence Robert suffered from, or was treated for, back pain or back injury, despite his engaging in heavy physical labor for more than 20-plus years while working for HCI; that a few days after the accident when Robert complained of pain in his back and right leg, Dr. Hernandez took an x-ray and observed Robert's vertebrae were pushed forward; that all of the medical experts—including Stephen's—testified to a reasonable degree of medical certainty that Robert suffered harm from the collision; that all of the medical experts—again including Dr. Dodge—testified to a reasonable degree of medical certainty that Robert's care and treatment, including surgery, was necessary to relieve his back pain and the numbness and discomfort he was experiencing in his right leg; and that as a result of the March 2018 spinal surgery, Robert missed about three or four months of work, which even Stephen's expert admitted led to a decrease in Robert's earnings.

Cornerstone Realty Advisors v Summit Healthcare Reit

During the preparation for the deposition of Now CFO, Baccaro, who had been CVI's in-house accountant until April 1, 2014, disclosed that she had in her possession a copy of certain CVI ledgers downloaded from Yardi. Summit obtained a copy of the ledgers from Baccaro and promptly produced it to Plaintiffs. For various reasons, CVI's cash flow and financial condition could not be determined from the parts of the ledgers in Baccaro's possession. A comparison of the CVI ledgers provided by Baccaro with the documents from the July 29, 2016 ledger revealed the latter omitted nearly all of CVI's expense ledgers. On August 31, 2017, during a telephone interview of Now CFO, Defendants' counsel learned that from the outset of the litigation Plaintiffs had had in their possession, custody, or control Yardi backup files and the complete general ledgers, in native format, for CRA, CVI, and CIP for the period 2009-2014. Robert Grimm, a director of Now CFO, later declared: (1) CVI's general ledger was available in the format in which it was originally created to anyone with a Yardi account; (2) Plaintiffs had a full backup copy of the Yardi data files and, by reactivating their Yardi account, would have had access to the general ledgers in the original format in which they had been created; and (3) in August 2014 he had delivered to Roussel a disk with all the downloaded Yardi data for CRA and CVI, including the Yardi backup files, which included the general ledgers. TJ Delight, a partner of Now CFO, confirmed that in July 2014 CVI had given Now CFO access to the Yardi account and that since August 2014 Plaintiffs and Now CFO had had full copies of CRA's and CVI's backup files, accessible in original format.

In re Von Staich

Third, release of inmates similarly situated to petitioner is not the only means by which respondents can cure the existing constitutional violation, or even necessarily the most expeditious way to do so. As we have been at pains to emphasize, the immediate need is for a reduction of the San Quentin inmate population that will allow sufficient physical distancing among the inmates who remain. This might be accomplished by releasing or transferring the most vulnerable inmates, but it might also be accomplished by releasing or transferring other inmates so as to create the space necessary to protect the vulnerable at San Quentin. With lives at stake, it is vital to proceed with all possible speed, and respondents are best positioned to determine the inmates whose removal from San Quentin can be processed most expeditiously. Nevertheless, we are not without means to expedite the release or transfer from San Quentin of more inmates than are now deemed eligible for release. Section 1484 provides that in a habeas corpus proceeding, if the court finds that imprisonment of a prisoner is unlawful, or he or she is entitled to discharge, "[t]he court or judge must thereupon proceed in a summary way to hear such proof as may be produced against such imprisonment or detention, or in favor of the same, and to dispose of such party as the justice of the case may require ... and have full power and authority ... to do and perform all other acts and things necessary to a full hearing and determination of the case ." (§ 1484, italics added.) In In re Crow (1971) 4 Cal.3d 613, 94 Cal.Rptr. 254, 483 P.2d 1206, a unanimous opinion by Justice Tobriner, our Supreme Court treated section 1484 as acknowledging that "[i]nherent in the power to issue the writ of habeas corpus is the power to fashion a remedy for the deprivation of any fundamental right which is cognizable in habeas corpus." ( Crow , at p. 619, fn. 7, 94 Cal.Rptr. 254, 483 P.2d 1206.) "[T]he court's power could not be limited ...

People v De Oliveira

Quintana testified that after she heard Dax cry, she saw appellant shaking the child in a way that "didn't look violent" but also "didn't look normal." A reasonable jury could therefore find that appellant assaulted Dax, but might not have shaken him with enough force to cause great bodily injury in a healthy child. Dr. Gabriel opined that Dax had significant bleeding at the time of his birth, leaving him vulnerable to experience rebleeding by a mere "jostling." His opinion was not without evidentiary support. First, both appellant and Dr. Gabriel testified that during Dax's birth, doctors used a vacuum extractor on the child. Dr. Gabriel opined that this indicated a difficult delivery, and he testified that vacuum extractors cause cephalohematomas (hemorrhage under the scalp) in almost all cases, and bleeding inside the brain in as many as half of all cases. Second, based on a comparison of Dax's head circumference at birth and one week later, Dr. Gabriel opined that Dax had cephalohematoma at birth, which temporarily inflated his head circumference until it began to recede. Third, Dax's medical records reflected his parents' concerns that he was crying too much, something Dr. Gabriel testified was unusual. To him, Dax's persistent crying meant that blood was "touching and irritating the coverings of the brain." Finally, Dax's head was greatly enlarged at the time of his admission to the hospital. According to Dr. Gabriel, this confirmed Dax had been suffering from chronic bleeding and rebleeding, because his head could not have swelled so much from the time of the incident to the time of his admission. Had the jury credited this testimony, it could have found it at least reasonably possible that Dax's ultimate brain injury did not require force likely to cause great bodily injury.

Sabetian v Exxon Mobil

In 1951 the government of Iran nationalized its oil assets, assuming control from the Anglo-Iranian Oil Company, which was majority-owned by the government of Great Britain. In 1952 Iran formed NIOC to own and supervise all of Iran's oil assets. But NIOC did not have access to the global oil markets. To avoid possible influence from the former Union of Soviet Socialist Republics, the United States "devised a plan in which a consortium of newly-formed international corporations would operate the Abadan refinery and some of the other Iranian Oil Premises, under Iranian supervision." The United States invited several major American companies with operations in the Middle East to participate in an international consortium with other oil companies. In 1954 American oil companies Gulf Oil Corporation, Socony-Vacuum Oil Company, Inc., Standard Oil Company of New Jersey, Standard Oil Company of California, and the Texas Company, and European oil companies Anglo-Iranian Oil Company, Ltd., N.V. de Bataafsche Petroleum Maatschappij, and Compagnie Francaise des Pétroles (collectively, the consortium members) entered into the Agreement with Iran and NIOC. Defendant Chevron is the successor in interest to Standard Oil Company of California and Gulf Oil Corporation. Defendant Texaco, Inc., is the successor of the Texas Company. The Exxon defendants are successors in interest to Socony-Vacuum Oil Company, Inc., and Standard Oil Company of New Jersey. The Agreement consists of two parts, the first among the consortium members, Iran, and NIOC and the second among Iran, NIOC, and the Anglo-Iranian Oil Company, Ltd. Only part I is at issue in this case. The recitals for part I provided, "WHEREAS, both the Government of Iran and [NIOC] desire to increase the production and sale of Iranian oil, and thereby to increase the benefits flowing to the Iranian nation ..., but additional capital, experienced management, and technical skills are required in order to produce, refine, transport and...

Strojan v Strojan

In February 2001 the Family Trust was created. The trust instrument identified Les as the trustee and Walter and Elsie as the settlors and life beneficiaries. The assets of the trust consist primarily of the Property and two bank accounts. As relevant here, the terms of the trust require the trustee to pay Walter and Elsie the net income generated by the trust during their lifetimes and to add any undistributed net income to the principal of the trust estate. If the trustee determines that the net income is insufficient, the trustee has the discretion to distribute as much of the principal of the trust estate as deemed necessary for Walter's and Elsie's "proper health, education, support, maintenance, comfort, and welfare, in accordance with their accustomed manner of living at the date [the trust was created] without taking into consideration funds and assets available to them held free of th[e] trust." The trust provides that either Walter or Elsie could revoke the trust during their lifetime, and that, if the trust is revoked, the Property in the trust must be returned to the settlors as either community property or separate property, depending on the character of the Property when it was transferred to the trust. At the death of the first settlor, the trust requires the trustee to divide the trust estate into two separate trusts, designated as the survivor's trust and the exemption trust, each of which comprises one half of the settlors' community property that is a part of the trust estate. Thereafter, the trustee is required to pay the surviving spouse the net income generated by the exemption trust as necessary, in the trustee's discretion, for the survivor's "health, education, support, and maintenance, in accordance with the survivor's accustomed standard of living at the date of the deceased spouse's death," and to add any income not distributed from that trust to the principal of the trust estate. The surviving spouse may amend, revoke, or terminate the ...

Beaty v Union Bank In re Union Bank Wage and Hour Cases

At the certification stage, plaintiffs using statistical evidence also must prepare a trial plan addressing the use of statistical evidence and demonstrating how individual issues can be managed at trial. (Duran v. U.S. Bank National Association (2014) 59 Cal.4th 1, 31-32 (Duran).) Plaintiffs filed a 10-page trial plan concurrently with their motion for class certification. The first step of plaintiffs' plan was summary adjudication of the liability questions presented by each of their subclasses. If material factual disputes prevented summary adjudication, plaintiffs proposed that liability and damages for each subclass be adjudicated at trial as follows. For the Minimum Wage and Overtime subclass, plaintiffs proposed calling as witnesses two of defendant's PMKs, "as well as Plaintiffs and other class members to establish Defendants' time keeping practices." Then, to determine liability and damages, "a jury need only analyze the shift start/end times . . . and compare them with the activity tracked through Softphone on the Agent States Reports. Where the Agent States Reports evidence that an employee was punched in to the Softphone system before or after the start and end times on their time cards, this would reflect uncompensated time. . . . Given a full set of data before trial—including time cards and Agent States Reports for all Class members—Plaintiffs' expert would be able to measure total uncompensated time." For the On-Premises Rest Period subclass, plaintiffs asserted that the illegality of the policy itself would establish liability. They also planned to elicit "testimony from Defendants' witnesses" that defendant did not pay rest period premiums, and asserted that "Defendants' time records can be easily analyzed to determine which shifts qualify for one or more rest breaks and calculate damages using payroll data . . . ."

People v Stewart

The People disclosed certain investigative notes and the existence of a police report (but not the actual report) about a prior alleged molestation of Doe 2 by someone other than Stewart, and the notes reflected that those allegations had been investigated and turned over to the Juvenile Authority, and the matter had been closed. But the People did not disclose, either directly or indirectly, that the police report (and possibly other juvenile records) contained information that could be used to impeach Doe 2 regarding her testimony about Stewart's molestation. The notes the prosecutor produced suggested the prior molestation incident was far less relevant than the police report (and the CPS reports eventually provided to Stewart) revealed, namely, that Doe 2 had made prior and possibly conflicting allegations of sexual abuse by another cousin; that she admitted having engaged in sexual acts with the cousin, who was close in age to her; that she engaged in these acts over a period of three or four years, beginning when she was eight or nine and continuing until she was 11; that these included the same acts she later accused Stewart of perpetrating; that both her brother and cousin told police she had participated willingly; and that her allegations about the earlier abuse were determined to be "unfounded." While the People were not required to turn the police report over to the defense, and indeed may have been legally barred by section 827 from doing so without a court order (see T.N.G. v. Superior Court , supra , 4 Cal.3d at pp. 780-781, 94 Cal.Rptr. 813, 484 P.2d 981 ["The police department ... may clearly retain the information that it obtains from the youths’ detention, but it must receive the permission of the juvenile court pursuant to section 827 in order to release that information to any third party, including state agencies"]; Wescott v. County of Yuba (1980) 104 Cal.App.3d 103, 105-110, 163 Cal.Rptr. 385 [party seeking such records must file a petition ...

Blake v Langer In re Marriage of Blake

Addressing the OSC regarding fee augmentation, the court rejected Blake's assertion that it lacked authority to augment fees on its own OSC, stating that "'[t]he vicissitudes of family law proceedings dictate that trial judges must have maximum flexibility in ensuring that each party has the means to pay for counsel. To hold otherwise would frustrate those policies.'" (Quoting In re Marriage of Hobdy (2004) 123 Cal.App.4th 360, 371 (Hobdy).) The court noted it previously had made two fee awards to Langer's counsel, but those awards had not been effectuated. Instead, the court observed that Steven "is apparently putting into action [Blake's] prior threats to [Langer] to grind him down by out litigating him." The court explained that the court's issuance of its own OSC "merely . . . reflects this Court's obligation to effectuate Section 2030 and is therefore proper under the circumstances." The court then ordered Blake to pay minors' counsel $17,200, subject to claims of reimbursement and reallocation. It also ordered Blake to pay $200,000 to Langer's counsel and $100,000 to her own counsel within four weeks of the order, with both payments to be paid from the community property portion of Blake's retirement account. The court also ordered that the award to Langer's attorney would increase to $300,000 if the New York lawsuit filed by Steven and Daniel remained pending in four weeks. The court stated that the additional $100,000 award would not be subject to reallocation and reimbursement, but the other awards were. Finally, the court stated that it "makes the necessary findings of disparity in access to funds and income and ability to pay, as well as the reasonable need for fees and augmentation of prior awards."

People v Yocom

In Lucas, the defendant argued defense counsel was prejudicially ineffective during closing argument when he admitted the defendant was at the crime scene and "probably committed the murders." The defendant asserted his attorney could not concede his guilt unless he expressly waived his constitutional rights. (Lucas, supra, 12 Cal.4th at p. 446.) Lucas declined to find counsel made "an incompetent tactical choice to admit that [the] defendant was at the scene and probably committed the homicides, but to argue his intoxication negated the mental elements necessary for felony murder or premeditated murder. After all, [the] defendant's bloody fingerprint was found at the scene, [the] defendant's hand was cut, blood consistent with his blood, but not with the victims', was found in their home, and a trail of blood led from the scene of the crime to [the] defendant's home. In addition, the bloody knife found at the scene was a knife like one [the] defendant had owned, and blood on [the] defendant's clothing was consistent with the blood of one of the victims. Finally, when he was interrogated by the police, [the] defendant admitted cutting his hand inside the victims' house and identified the murder weapon as his own. [¶] Given this evidence, ' "[i]t is entirely understandable that trial counsel ... made no sweeping declarations of his client's innocence but instead adopted a more realistic approach .... As stated in a recent case, 'good trial tactics demanded complete candor' with the jury. [Citations.] Under the circumstances we cannot equate such candor with incompetence." ' [Citations.]" (Id. at p. 447.)

LA County Department of Children and Family Services v DN In re DN

Furthermore, although section 361.5, subdivision (a)(3)(A) creates an exception to subdivision (a)(1)(A)’s general rule, that exception does not, by its terms, support father's request for a continuance of reunification services. It provides that "court-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of his or her parent or guardian if it can be shown, at the hearing held pursuant to subdivision (f) of Section 366.21, that the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended time period." (See § 361.5, subd. (a)(3)(A), italics added.) Even if father had shown that D.N. would be returned and safely maintained in his home within any continued reunification period, this provision would not have been available to him because as of the December 6, 2019 hearing, more than 18 months had elapsed since D.N. had been removed from his custody. Notwithstanding these statutory limits on reunification services, a juvenile court may invoke section 352 to extend family reunification services beyond these limits if there are "extraordinary circumstances which militate[ ] in favor of" such an extension. (See Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1388–1389, 75 Cal.Rptr.2d 851 ( Andrea L. ); see also M.S., supra , 41 Cal.App.5th at p. 596 & fn. 16, 254 Cal.Rptr.3d 162 [holding that, under certain circumstances, "reunification services can ... be ordered or provided beyond section 361.5, subdivision (a)(4)(A)’s 24-month limit"].) Extraordinary circumstances exist when "inadequate services" are offered by the child welfare agency or "an external force over which [the parent has] no control" prevented the parent from completing a case plan. (See Andrea L. , supra , at pp. 1388–1389, 75 Cal.Rptr.2d 851 ; see also In re G.S.R. (2008) 159 Cal.App.4th 1202, 1213, 1215, 72 Cal.Rptr.3d 398 ( G.S.R. ) [h...

People v Triggs Nuñez

In those cases, it was the prosecution that first introduced evidence outside of the accommodation syndrome, whereas here it was the defense. Defendant sought to leave the jury with the impression the scientific research supported his defense that he was falsely accused of child sexual abuse; however, this is not what the research suggested. Defendant cannot pick and choose the portions of the research favorable to his case. Further, the expert never testified to the percentage of false allegations other than to say they were rare, and one study found they were never made by the child. Without statistical evidence, the jury was not placed in the same situation as the jury in Julian and Wilson. Whereas those juries there were told the victim was credible to a certain percent certainty; this jury was told to determine for itself the victim's credibility. And the jury was instructed it had to determine the victim's credibility. (CALCRIM No. 226) Thus, because the expert's testimony regarding the false allegation study did not include case-specific facts or attest to the credibility of the victim, the court did not abuse its discretion by allowing the expert to testify about the particulars of the false allegation study.

County of Sonoma v US Bank

Over the next five months, the County received no response from any of the noticed parties. The property's substandard buildings, unlawful and hazardous constructions, unlawful occupancies, fire hazards, and accumulation of junk, garbage, and debris had been left unattended. Finding an "urgent need" to abate the extensive code violations on the property, the County filed a petition in Sonoma County Superior Court in November 2017 seeking appointment of a receiver under the authority of both section 17980.7 and Code of Civil Procedure section 564. The petition sought authorization for the receiver to finance the necessary repairs and clean-up with a loan secured by a lien with priority over all other previously recorded liens on the property—i.e., a "super-priority lien." The petition requested permission for a receiver's certificate of $30,000 with first priority to cover the initial costs of securing the property and beginning the remediation process. And it asked that all receiver and County fees and expenses also be granted super-priority status, to be paid first out of any proceeds from sale. Copies of the pleadings and all supporting materials were served on U.S. Bank in early January 2018. On January 19, 2018, the trial court granted the County's petition for appointment of a receiver pursuant to section 17980.7, subdivision (c), and Code of Civil Procedure section 564. The court found that the property was in a condition which substantially endangered the health and safety of the public. The order authorized the receiver to exercise the powers granted to receivers by section 17980.7, subdivision (c)(4), and Code of Civil Procedure section 568. It authorized the receiver to borrow funds to finance the necessary remediation on the property and to fund a $30,000 receivership certificate to cover initial costs. The order further provided that the County was entitled to recover its attorney fees and costs and that such enforcement fees would be given the same prio...

People v Quiroz

On appeal, the People conceded that the indictment failed to allege that the attempted murders were deliberate and premeditated but argued that the defendant had forfeited the claim. (Houston, supra, 54 Cal.4th at p. 1226.) The California Supreme Court found that despite the fact the accusatory pleading did not include that the attempted murders were premeditated or deliberate, it did not require reversal of the true findings by the jury and the life sentences. It stated, "To the extent defendant contends he was not provided adequate notice of the punishment he faced, we are not persuaded. During the defense's presentation of its case, the trial court expressly noted that defendant, if convicted, would be sentenced to life imprisonment, and the court asked the parties to say if there was a problem with the proposed jury instructions and verdict forms. One week later, the court said the attempted murder verdict form would include deliberate and premeditated attempted murder as a special finding. At the close of evidence, the trial court instructed the jury to determine whether the attempted murders were willful, deliberate, and premeditated, and indicated that a special finding on this question appeared on the verdict form. Had defendant raised a timely objection to the jury instructions and verdict forms at any of these stages of the trial on the ground that the indictment did not allege that the attempted murders were deliberate and premeditated, the court could have heard arguments on whether to permit the prosecutor to amend the indictment. [Citation.] If the trial court was inclined to permit amendment, defendant could have requested a continuance to permit him to prepare a defense. [Citation.] On the facts here, defendant received adequate notice of the sentence he faced, and the jury made an express finding that the attempted murders were willful, deliberate, and premeditated. A timely objection to the adequacy of the indictment would have provided an opportu...

People v Paisano

Though a murder conviction does not require an intent to kill, an attempted murder conviction requires both the specific intent to kill and the commission of a direct but ineffectual act towards carrying out the intended killing. (Smith, supra, 37 Cal.4th at p. 739.) Thus, in order for a defendant to be convicted of the attempted murder of a victim, the prosecution must prove the defendant acted with the specific intent to kill the victim. (Ibid.) Moreover, "[t]o be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else." (People v. Bland (2002) 28 Cal.4th 313, 328.) Yet, "[o]ne who intentionally attempts to kill another does not often declare his state of mind either before, at, or after the moment he shoots. Absent such direct evidence, the intent obviously must be derived from all the circumstances of the attempt, including the putative killer's actions and words. Whether a defendant possessed the requisite intent to kill is, of course, a question for the trier of fact. While reasonable minds may differ on the resolution of that issue, our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946; see also, Smith, at p. 739.) "[T]he act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice." (Smith, p. 742.) Moreover, "even if the shooting was not premeditated, with the shooter merely perceiving the victim as 'a momentary obstacle or annoyance,' the shooter's purposeful 'use of a lethal weapon with lethal force' against the victim, if otherwise legally unexcused, will itself give rise to an inference of intent to kill. (People v. Arias [(1996)] 13 Cal.4th [92,] 162.)" (Smith, at p. 742.)

People v Poslof 1

However, "'"[p]rejudice" as contemplated by [Evidence Code] section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption "'substantially outweigh'" the probative value of relevant evidence, a section 352 objection should fail. [Citation.] "'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging."' [Citation.]" [Citation.] [¶] The prejudice that section 352 "'is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' [Citations.] 'Rather, the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors. [Citation.]' [Citation.]" [Citation.] In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.'" (People v. Doolin, supra, 45 Cal.4th at pp. 438-439; accord, People v. Bell (2019) 7 Cal.5th 70, 105; accord, People v. Tran (2011) 51 Cal.4th 1040, 1048.)

People v Clark 1

The exception applies here. The prosecution theory was something catastrophic happened to King on January 3, 2013 over a short period of time. The prosecutor did not argue, nor was there evidence, that hitting King's head or shaking him were separate, discrete acts. The prosecutor therefore repeatedly argued in closing that the "head trauma was inflicted on January 3, 2013"; "based on the medical science and the evidence, it's undisputed that all that trauma that baby King had to endure and die from, it all happened on January 3"; "[Clark] inflicted the head trauma on January 3, 2013"; and Clark took King to the bathroom and gave him a "couple blows to the head . . . [a]nd after he did the blows, he shook baby King and baby King's head hit the bathtub. That's why there's the subgaleal hemorrhage, and the rotation, the acceleration, deceleration, and the blows to the head from the head going forward and back and hitting the tub, the retinal hemorrhaging." However, even if the jury could have believed that Clark's months-long history of hitting King, culminating in the fatal event on January 3, 2013, caused King's heart to stop beating, that abuse could only have happened over a brief period of time, given that Clark and Ericka began living together in September 2012 and King stopped breathing on January 3, 2013. (See, e.g., People v. Ewing (1977) 72 Cal.App.3d 714, 717 [unanimity instruction not required where physical abuse occurred over period of time].) Thus, where, as here, the evidence is that trauma was inflicted on a child within a relatively short period of time, the continuous course of conduct exception applies. (People v. Napoles, supra, 104 Cal.App.4th at pp. 115-116.) No unanimity instruction was required. V. Prosecutorial misconduct

Epstein v Vision Service Plan

Thus, while the arbitrator will be selected from a closed list maintained by VSP, there are safeguards against a biased adjudicator. The arbitrator must be neutral and cannot be in direct economic competition with the provider or stand to gain any direct financial benefit from the outcome of the arbitration. Either party can object to any proposed arbitrator. In addition, either party can strike up to two names from the remaining list of proposed arbitrators. The closed list must also be of individuals who have the "requisite expertise and ready availability to ensure a fair arbitration," and the " ‘ "ability to choose expert adjudicators to resolve specialized disputes" ’ " is a benefit of arbitration. ( Ramos v. Superior Court (2018) 28 Cal.App.5th 1042, 1059–1060, 239 Cal.Rptr.3d 679 ( Ramos ).) Epstein cites to Magno v. The College Network, Inc . (2016) 1 Cal.App.5th 277, 204 Cal.Rptr.3d 829, in support of his assertion the arbitrator-selection procedure provides "no assurances of neutrality at all." In that case, brought by nursing students against a for-profit, distance-learning provider, the arbitration provision stated arbitration would be held " ‘before one neutral arbitrator selected by TCN, and with the consent of Buyer (and no other person), which consent shall not be unreasonably withheld,’ " and that " ‘TCN shall notify Buyer of the arbitrator selected (for Buyer's consent) within 30 days.’ " ( Id. at pp. 281–282, 204 Cal.Rptr.3d 829.) Not surprisingly, the Court of Appeal concluded this provision effectively allowed TCN, the drafter of the contract, to select the arbitrator with no meaningful opportunity for the other party to assess the fairness of the arbitrator or to insure a neutral arbitrator. ( Id. at p. 290, 204 Cal.Rptr.3d 829.) The arbitration provision additionally required the arbitration to be conducted in Indiana although the students resided in California. ( Id. at p. 282, 204 Cal.Rptr.3d 829.)

Dones v Life Insurance of American

Dones's second amended complaint alleged causes of action for breach of contract and breach of implied contract against LINA and the County and for breach of the implied duty of good faith and fair dealing against LINA. The County and LINA again demurred. The trial court sustained the demurrers without leave to amend. As to the causes of action for breach of contract and implied breach of contract, the court held that since it was alleged the life insurance benefits would not go into effect until Johnson returned to active service, which she did not do, failure to provide supplemental life insurance benefits was not a breach of contract. The court rejected Dones's argument that LINA and County waived or were estopped from enforcing the active service requirement based on caselaw holding waiver and estoppel arguments cannot be used to create insurance coverage that does not exist, reasoning that Johnson's failure to meet the condition precedent meant the policy never went into effect. Also, as to the County, the court found Dones failed to plead facts showing the "grave injustice" necessary for equitable estoppel against the County and failed to allege the Board of Supervisors—the only body legally authorized to approve health and welfare benefits—approved a benefit providing Johnson with life insurance coverage if she did not return to active service. While finding it unnecessary to reach Dones's agency allegations given its conclusion there was no breach of contract, the court noted that the second amended complaint successfully alleged an agency relationship between the County and LINA but failed to adequately allege an "undisclosed or partially-disclosed" agency relationship. The court found the cause of action for breach of the covenant of good faith and fair dealing failed because it could not survive without an adequately pled breach of contract. Finally, the court declined to rule on the argument that the second amended complaint was a sham pleading but noted...

People v Daniels

Daniels continued spontaneously to talk as he walked through the encampment. He repeated, "Please tell me who called—." Officer Carrillo responded, "I'll, you know what, I'll tell you. Someone said that you forced them to, and I quote from her statements, . . . 'To suck your dick.'" Daniels inquired, "Hmm? I forced her to?" Officer Carrillo replied, "That's what she said, yes." Daniels stated, "Oh, hold up, you talking about S[e]lina? I knew she was going to—I said—oh, no, here's what I said, I said, 'Dude, I came back and there's a naked-ass fucking man, uh, where I sleep, in my spot. Bitch, you suck some dick right now, whether you like it or not." Officer Carrillo asked, "Is that what happened?" Daniels answered, "On my mama. Because I came back, there was another nigger like in my bed naked, and you got breakfast cooked for him, and I just recycled, I bought your ass a phone. Oh hell no, y'all bitches got me fucked up. . . . And then liked it when she was doing it." Daniels was laughing as he described what had happened. Officer Carrillo queried, "S[e]lina?" Daniels responded, "Yeah." Daniels added, "Oh, Cindy was there too." Officer Carrillo stated, "Okay, we'll talk to her and see if we can get to the bottom of it." Daniels continued, "No, she—yeah, yeah, she was there. . . . I was like, wait a minute, 'cause I'm sleeping down there." Daniels added, "I come back. I said, 'Cindy, I'm, I'm trying to get to bed.' So I, uh, and she was cleaning up. She had a clothes brush. So I go down there and sleep. I wake up. I see this nigger, Chavarro, wait, wait, naked, I'm like, 'What the fuck, nigger?' Breakfast, and I'm like, 'Oh, what the—?' like a nigger you know, that's like saying, . . . you know, I'm like 'Wait a minute, huh?'" Officer Carrillo stated, "That sounds super-disrespectful." Daniels responded, "Yeah, on my—I'm like, 'Okay, these bitches—.'"

People v Freeman

First, defendant never objected to the prosecution's introduction of evidence that he crashed into the unoccupied parked truck and that he was intoxicated at the time, even though defendant was never charged with any offenses based on that incident. The prosecution may introduce evidence of the defendant's uncharged acts that occurred after the charged offense if the evidence is relevant to prove some fact other than the defendant's criminal disposition, such as motive, opportunity, intent, preparation, common design or plan, or identity. (Evid. Code, § 1101, subds. (a) & (b); People v. Balcom (1994) 7 Cal.4th 414, 425-426.) "Evidence of identity is admissible where it is conceded or assumed that the charged offense was committed by someone, in order to prove that the defendant was the perpetrator." (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2.) The greatest degree of similarity is required to prove identity. (Id. at p. 403.) "For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.]" (Ibid.; People v. Carter (2005) 36 Cal.4th 1114, 1148.)

Gardner v Calstar Air Medical Services

Gardner points to Arteaga in arguing that "anxiety and depression alone were not sufficient to prove disability to the jury," and her "cognitive impairment, insomnia, chronic headaches, diarrhea, stomach pains, chest pain, depression, and miscarriage were all relevant and necessary to proving that these symptoms limited her ability to perform her duties on the night shift." But the Arteaga court's conclusion that a diagnosis of carpal tunnel syndrome was insufficient to prove disability without an individualized assessment of how the condition affected job functions reflects the court's focus on limitations imposed by the claimed disability. Nothing in Arteaga suggests an employee is necessarily entitled to prove disability by presenting evidence to the jury of all his or her symptoms despite the employer's unawareness of them. Gardner's assertion that the trial court ruled "an expert stating [Gardner] was disabled was sufficient," which she argues is contrary to Arteaga, reads the trial court's comments too broadly. After the court granted the motion to exclude evidence of specific symptoms or conditions not made known to Calstar, Gardner's attorney asked what evidence of disability he was limited to and the court replied, "You're limited to what the doctors were telling the defendants." Counsel said the doctors only told the defendants that Gardner was "disabled or had a condition," and urged, "I can't prove disability under the law unless I can present evidence of a disability." The court responded, "if you have an expert testifying, she's disabled, that's evidence of a disability." The court did not rule that an expert saying the plaintiff is disabled is "sufficient" to establish disability under the FEHA; it said such testimony is "evidence" of a disability. The statement is not inconsistent with the principle discussed in Arteaga, which requires an individualized assessment of how a claimed disability impacts the employee's ability to perform the essential fu...

Dix v Live Nation Entertainment

Relying on the Third Restatement of Torts, the Court in Regents held "a business or landowner with invited guests" is a special relationship "that may support a duty to protect against foreseeable risks." ( Id . at p. 620, 230 Cal.Rptr.3d 415, 413 P.3d 656.) In Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 30 Cal.Rptr.3d 145, 113 P.3d 1159 ( Delgado ) the Court stated, "Courts have found such a special relationship in cases involving the relationship between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees." ( Id . at p. 235, 30 Cal.Rptr.3d 145, 113 P.3d 1159 ; see Lopez , supra , 40 Cal.3d at p. 789, 221 Cal.Rptr. 840, 710 P.2d 907 ["[t]he relationship between a common carrier and its passengers is just such a special relationship, as is the relationship between an innkeeper and his or her guests, between a possessor of land and those who enter in response to the landowner's invitation and between a psychiatrist and his or her patients"]; Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 806, 205 Cal.Rptr. 842, 685 P.2d 1193 ( Peterson ) ["[a]mong the commonly recognized special relationships are that between a possessor of land and members of the public who enter in response to the landowner's invitation"]; University of Southern California v. Superior Court (2018) 30 Cal.App.5th 429, 444, 241 Cal.Rptr.3d 616 ["[t]he relationship between a possessor of land and an invitee is a special relationship giving rise to a duty of care"]; Rotolo , supra , 151 Cal.App.4th at p. 326, 59 Cal.Rptr.3d 770 ["[c]ourts have found that a " ‘special relationship’ " exists between business proprietors and their patrons or invitees ..."]; see also Morris v. De La Torre (2005) 36 Cal.4th 260, 274, 30 Cal.Rptr.3d 173, 113 P.3d 1182 ["[i]t is well established that a proprietor's special-relationship-based duty to customers or invitees extends beyond the structure of a premises to areas within the prop...

Harris v Eslinger

Indeed, the Harrises' relationship with the Rufeners is one of the quintessential privity-forming relationships recognized under California law. (See 7 Witkin, supra, § 460 ["The most common form of privity is succession in interest. One who succeeds to the interests of a party in the property or other subject of the action, after its commencement, is bound by the judgment with respect to those interests in the same manner as if he or she were a party" (italics added)]; accord Consumer Advocacy, supra, 168 Cal.App.4th at p. 689.) Here, the Harrises succeeded to the property that was the subject of the Rufener Action, after the commencement of the Rufener Action; they are therefore bound by a judgment with respect to their interests in that property as if they had been a party to the Rufener Action. Finally, it is clear that the "circumstances [are] such that the [Harrises] 'should reasonably have expected to be bound" by the first suit," since the Rufeners expressly informed the Harrises of the Rufener Action while that action was still pending, and informed "Mr. Harris that soon [the Rufeners] would dismiss their case," and that "if the [Rufeners] drop[ ] the lawsuit that future efforts of the [Harrises] to retain access to the areas that hinder the parking and access to the garage will be almost impossible and may be lost forever."



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