California > Court of Appeal > 2020

California Courts of Appeal | Top Cases | November 2020

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People v Winkler

Dr. Fiore stated that the body was not found in the vehicle or near the driver's side of the car. Rather, the pickup truck was resting on the driver's side, and the body was found on her back underneath the back end of the truck by the wheel well. Dr. Fiore testified that there was nothing in the materials she reviewed that would establish where the second wife had been in the truck at the time of the crash, or even that she was in the cab of the truck as opposed to the truck bed. But Dr. Fiore also testified on recross-examination, "I don't think that anybody staged that accident and put her underneath the truck and tipped it up on end. I don't think that's a reasonable scenario. [¶] I think the accident is a real – is a real thing. I just don't know where she was to start with because she was ejected, and that's true of any motor vehicle accident where somebody is ejected. It's very difficult to tell where they were positioned at the time prior to the accident." Dr. Fiore stated that there was "no evidence to support or refute," asphyxiation and that it was simply unknown. According to Dr. Fiore, the toxicological testing was not the most comprehensive, "but for what they looked at at that time, they didn't find any drugs or alcohol in her system." Dr. Fiore concluded on redirect examination that it was fair to say that "there's a lot that's just unknown." Dr. Travis Miller, a physician specializing in allergies, testified that he had been practicing since 2006. He consulted colleagues who were experts regarding issues relating to anaphylactic shock and epinephrine. Dr. Miller testified that it was difficult to say whether a person experiencing an anaphylactic reaction could recover without treatment. He clarified, "If it's truly anaphylaxis and you have a combination of two symptoms, I guess, theoretically, it's possible that someone could." He continued, "with the lower grades of allergic reactions, some people we know, by experience, that do experience symptoms...

Boyd v JH Boyd Enterprises

The board held a special meeting on August 12, 2014, to address Liz's demand, with J.H., Martha, Louise, and Robert present. The board decided not to have JHBE purchase Liz's shares at $341.07 per share because (1) the board believed the price was inflated and the actual fair market value was $277 per share, and (2) the board needed to be sure it would collect on Ken's $2.5 million note that was due the following month, as it needed that money to purchase Liz's shares. In an attempt to avoid litigation, however, it allowed Liz to market the shares to the other shareholders at $341.07 per share. The next day, JHBE sent a notice of intended sale to the shareholders as required by the buy-sell agreement, offering the shares at $341.07. The notice stated the board held a special meeting where it "accepted an informal opinion that the value of the shares have increased and have reset the stock value to $341.07 per share." Based on the advice of JHBE's attorney, Mallek, and to satisfy the board's fiduciary obligations to the shareholders, the notice also stated a "significant note receivable" of $2.6 million was due in full on September 15, 2014, and if it was not received, JHBE's stock value would be negatively impacted. The board did not include this information to try to discourage shareholders from buying. When asked why the notice did not also indicate that litigation had been threatened, Martha responded that Mallek did not tell the board that information needed to be disclosed. No shareholder accepted the offer to purchase Liz's shares.

Brennon B v Superior Court

In addition to concluding the construction company was a business establishment under the Unruh Act, the court in Burks also rejected the company's due process challenge to the statute, stating: "Discrimination on the basis of race or color is contrary to the public policy of the United States and of this state. Although the antidiscrimination provisions of the federal Constitution relate to state rather than private action, they nevertheless evidence a definite national policy against discrimination. [Citation.] The Legislature in the exercise of the police power may in appropriate circumstances prohibit private persons or organizations from violating this policy.... [¶] For more than 50 years prior to the enactment of the Unruh Act, sections 51 and 52 of the Civil Code contained provisions prohibiting discrimination in places of ‘public accommodation and amusement.’ The constitutionality of this legislation was upheld in Piluso v. Spencer (1918), 36 Cal.App. 416, 419, 172 P. 412 ..., and there is no valid reason why the extension of the prohibition against discrimination to ‘all business establishments,’ including those dealing with housing, would be violative of due process. Discrimination in housing leads to lack of adequate housing for minority groups [citation], and inadequate housing conditions contribute to disease, crime, and immorality. Under the police power reasonable restrictions may be placed upon the conduct of any business and the use of any property [citations], and the restriction here imposed in furtherance of the policy against discrimination is reasonable." ( Burks, supra, 57 Cal.2d at p. 471, 20 Cal.Rptr. 609, 370 P.2d 313.) In O'Connor, the court considered whether a nonprofit condominium association that adopted age-restrictive covenants was a business establishment under the Unruh Act. ( O'Connor, supra, 33 Cal.3d at pp. 792, 796, 191 Cal.Rptr. 320, 662 P.2d 427.) The court concluded it was, explaining: "Although our cases so far have all de...

Mahon v City of San Diego

To be precise, the City argued that SDG&E's "UG [Undergrounding] Obligation ," was lawful consideration offered in exchange for franchise rights and a legitimate regulatory fee. (Italics added.) In its briefing, the City drew a distinction between the Undergrounding Surcharge (i.e., the 3.53 percent surcharge on ratepayers' bills) and SDG&E'S "UG [Undergrounding] Obligation ," to budget 4.5 percent of its gross receipts for undergrounding. (Italics added.)The distinction between the Undergrounding Obligation and the Undergrounding Surcharge was important in presenting the City's standing argument. Specifically, the City argued that plaintiffs lacked standing to challenge the Undergrounding Surcharge , because, according to the City, ratepayers such as plaintiffs paid the Undergrounding Surcharge to SDG&E and not to the City. In addition, the City argued that plaintiffs lacked standing to challenge SDG&E's [Undergrounding] Obligation because the "fact that SDG&E passes on the burden and expense of the UG [Undergrounding] Obligation to the ratepayers is not sufficient to make the ratepayers the payers of the UG [Undergrounding] Obligation to the City." However, as noted in footnote 23, ante , the trial court rejected the City's standing argument, and the City does not raise a standing argument on appeal.In addition, the distinction between the Undergrounding Obligation and the Undergrounding Surcharge was relevant to the City's other alternative contention that, if the trial court were to determine that the Undergrounding Obligation was a tax, it was a lawful tax, because the Undergrounding Obligation was initially imposed in 1970, prior to the passage of Proposition 218, and no "rate increase occurred," with the enactment of the Undergrounding Surcharge in 2002. This distinction was also relevant to the City's arguments with respect to the City's contention that SDG&E's Undergrounding Obligation is a valid regulatory fee.The City continues to use this terminology in...

People v Mireles

When Detective McInenery called defendant and asked to meet him for an interview, defendant promised to be at the police department at 10:00 p.m. and said he did not need a ride. Defendant's apartment was about an hour away from the Sanger Police Department. By 9:55 p.m., however, he had not appeared at the police station, and officers found defendant sitting in a car at his apartment complex. During that first interview, defendant spontaneously said he sent a text message to Rodriguez after he left the house, referring to the message that he had created as an alibi. Defendant also gave an account of his activities that was vastly different from Camacho's statement - that he went to the neighborhood just to give his new cell phone number to his friends, and not because he needed to use Camacho's computer to look for a job or he asked Camacho for money and drugs. Defendant further claimed he went to Rodriguez's house first and Rodriguez's stepdaughter greeted him, even though the stepdaughter testified she never saw defendant that day; he then went to Camacho's house; and fabricated the story that he stopped by two specific gas stations after he left, again to create an alibi. Defendant's story about the gas stations was refuted by the security videotapes from those businesses and defendant later admitted he lied about it.

People v Ortiz 1

We contrast our conclusion of harmless error under Chapman with the determination of prejudicial error in People v. Foy (2016) 245 Cal.App.4th 328 (Foy), which also involved a robbery. There, conditional examination testimony of an unavailable witness (Song) was admitted at trial, which was deemed error on appeal. (Id. at p. 350.) In conducting the prejudicial error analysis under Chapman, the court noted that although Song's testimony about the circumstances of the robbery was cumulative to other live witness testimony, there was no other witness identification that linked the defendant to the robbery. (Id. at p. 351.) The prosecution's critical and strongest evidence of a link between the defendant and the robbery came from Song's identification of the contents of a flash drive later found in the defendant's pant pocket. (Id. at pp. 336, 351.) Notably, the appellate court pointed out that while there was other circumstantial evidence linking the defendant to the robbery, the defendant had testified and presented an uncorroborated alibi and some explanation for the incriminating evidence against him. (Id. at p. 351.) The case had been tried twice, and both times Song's testimony had been admitted. However, the first case ended in a deadlocked jury, which suggested a close case even with Song's testimony. (Id. at p. 352.) The court found the admission was not harmless beyond a reasonable doubt. (Ibid.)

People v Diaz

As the jury was instructed here, the elements of forcible rape (§ 261, subd. (a)(2)) are: (1) the defendant had sexual intercourse with a woman; (2) the defendant and the woman were not married to each other at the time of the intercourse; (3) the woman did not consent to the intercourse; and (4) the defendant accomplished the intercourse by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or someone else. (CALCRIM No. 1000.) None of the elements of this offense relate to the age of the victim. By contrast, unlawful sexual intercourse with a minor in violation of 261.5, subdivision (d) requires that the victim be under the age of 16 and the perpetrator be 21 years of age or older. It therefore is not a lesser included offense of forcible rape. While defendant correctly points out that the accusatory pleading in this case alleges that S.D. was under 16 years old at the time each of the forcible rape offenses occurred, the crime of forcible rape has no element relating to the victim's age and the accusatory pleading does not allege that defendant was over 21 years of age or older at the time of the offenses. Aside from noting S.D.'s age and the time period in which each crime occurred, the forcible rape counts alleged in the accusatory pleading simply tracked the statutory definition of the offense. Thus, under the accusatory pleading test, unlawful sexual intercourse with a minor in violation of 261.5, subdivision (d) is not a lesser included offense of forcible rape in violation of section 261, subdivision (a)(2) as alleged in counts twelve and fourteen. (See Woods, supra, 241 Cal.App.4th at pp. 478-482 [concluding that unlawful sexual intercourse with a minor was not a lesser included offense of forcible rape under the accusatory pleading test where the information did not allege that the victim was a minor, her age, or the perpetrator's age at the time of the intercourse].) As a result, the trial court was not required...

People v Gomez 1

As noted above, defense counsel represented both defendant, who was charged with two felonies that carried potential prison terms; and his brother, Efren, who was charged with misdemeanor simple battery punishable by a fine or a maximum of six months in custody (§ 243, subd. (a)). During voir dire, both the court and defense counsel said that counsel was exercising joint defense challenges.At the time of the trial, in a criminal case where the maximum punishment for the charged offense is not life imprisonment or death, "the defendant is entitled to 10 and the state to 10 peremptory challenges. When two or more defendants are jointly tried, their challenges shall be exercised jointly, but each defendant shall also be entitled to five additional challenges which may be exercised separately, and the people shall also be entitled to additional challenges equal to the number of all the additional separate challenges allowed the defendants." (Code Civ. Proc., § 231, subd. (a).) Since defendant was charged with felonies that carried prison terms, defense counsel was entitled to 10 peremptory challenges on his behalf.However, Efren was charged with a misdemeanor punishable by either a fine or a custodial term not exceeding six months. "If the offense charged is punishable with a maximum term of imprisonment of one year or less, the defendant is entitled to six and the state to six peremptory challenges. When two or more defendants are jointly tried, their challenges shall be exercised jointly, but each defendant shall also be entitled to two additional challenges which may be exercised separately, and the state shall also be entitled to additional challenges equal to the number of all the additional separate challenges allowed the defendants." (Code Civ. Proc., § 231, subd. (b).)On appeal, the People assert that defense counsel had 20 joint peremptory challenges pursuant to Code of Civil Procedure section 231, subdivision (a), since counsel represented both defendants, an...

Davis v Fresno Unified School District

Based on the parties' arguments and cases such as McGee II, Friedland and Ontario , we consider whether the Construction Contracts between Fresno Unified and Contractor constitute "contracts" for purposes of Government Code section 53511, subdivision (a). Our analysis of this issue is short because of our detailed discussions and conclusions in Davis I . In part II.A.2. of that opinion, we addressed the lease-leaseback method of financing for the delivery of new school facilities. ( Davis I, supra , 237 Cal.App.4th at pp. 276–280, 187 Cal.Rptr.3d 798.) We concluded the primary purpose of the lease-leaseback provisions in Education Code sections 17400 through 17425 was to authorize a new source of school financing. ( Davis, supra , at p. 280, 187 Cal.Rptr.3d 798.) We also considered the variation of the lease-leaseback arrangement used by Fresno Unified and Contractor in this case—a variation in which "the school district pays for the construction (using local bond funds) as it progresses, with the final payment being made when construction is completed. As a result, the school district does not occupy and use the new facilities as a rent-paying tenant for a set length of time." ( Ibid. , italics added.) Based on our interpretation of the Construction Contracts, we concluded that "[b]ecause the school district pays for the construction as it is completed, this alternate approach cannot be characterized as a method of financing the construction of new school facilities." ( Ibid. ) In short, we interpreted the Construction Contracts as being ordinary construction contracts with progress payments (not true leases) that did not provide Fresno Unified with any financing—that is, the contracts did not spread Fresno Unified's obligation to pay for the new construction over a significant amount of time. The existence of a standard 5 percent retention does not establish, as a matter of law, that Contractor provided a financing component to Fresno Unified under the Construc...

People v Celli

The California Supreme Court has held Evidence Code section 1108 passes constitutional muster because "the provision preserves trial court discretion to exclude the evidence [of an enumerated uncharged sexual offense] if its prejudicial effect outweighs its probative value" under Evidence Code section 352. (Falsetta, supra, 21 Cal.4th at pp. 907, 917-918 [Evidence Code 1108 is saved from due process defects because "section 352 affords defendants a realistic safeguard in cases falling under section 1108"]; People v. Nguyen (2010) 184 Cal.App.4th 1096, 1119 (Nguyen) ["[t]he Falsetta court saved section 1108 from constitutional infirmity" by "assuming the trial court would" apply Evidence Code section 352 to ensure that inflammatory evidence of limited probative value was not presented to the jury]; Jennings, supra, 81 Cal.App.4th, 1314 ["A careful weighing of prejudice against probative value under [Evidence Code section 352] is essential to protect a defendant's due process right to a fundamentally fair trial."].) Because Evidence Code section 352 stands between Evidence Code section 1108 and unconstitutionality (Falsetta, supra, 21 Cal.4th at pp. 917-918), in applying Evidence Code section 352 in the context of Evidence Code section 1108, a trial court must do more than simply rubber stamp the admission of evidence of prior sexual offenses the prosecution proposes to introduce. (See Harris, supra, 60 Cal.App.4th at p. 737.) Rather, in exercising discretion, "'because other-crimes evidence is so inherently prejudicial, its relevancy is to be "examined with care,"'" (ibid.), and it is to be received with the "utmost caution." (People v. Mullens (2004) 119 Cal.App.4th 648, 666 ["the risk of serious prejudice is greater in a case such as this one in which propensity evidence is admitted under section 1108, than in a case in which evidence of prior bad acts is admitted under section 1101[, subd.] (b)"]; see People v. Evers (1992) 10 Cal.App.4th 588, 599.)

People v Chance P In re Chance P

Section 12022.53 " 'sets forth the following escalating additional and consecutive penalties, beyond that imposed for the substantive crime, for use of a firearm in the commission of specified felonies, including . . . murder [and/or attempted murder:] a 10-year prison term for personal use of a firearm, even if the weapon is not operable or loaded (id., subd. (b)); a 20-year term if the defendant "personally and intentionally discharges a firearm" (id., subd. (c)); and a 25-year-to-life term if the intentional discharge of the firearm causes "great bodily injury" or "death, to any person other than an accomplice" (id., subd. (d)). For these enhancements to apply, the requisite facts must be alleged in the information or indictment, and the defendant must admit those facts or the trier of fact must find them to be true.' [Citation.] Section 12022.53, subdivision (f) provides, 'Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment . . . .' " (Morrison, supra, 34 Cal.App.5th at p. 221.)

Plotts Real Estate LP v Reidy

An injured party may waive its right to rescind a contract "by conduct (such as retention of benefits) indicating an election to affirm the contract." (1 Witkin, Summary of Cal. Law (11th ed. 2020) Contracts, § 969, p. 1019, italics added.) This is not a new concept. More than 100 years ago, our Supreme Court described as "too familiar to require the citation of authority" the following rule: "[I]f a person entitled to rescind goes on, after he discovers the facts which give him the right and knows that he has the right, to deal with the property involved as if the contract . . . were still in effect, he affirms the contract . . . [, then] his right to rescind it is gone." (Bancroft v. Woodward (1920) 183 Cal. 99, 111.) Reaffirming Bancroft more than 75 years ago, our high court summarized: "Waiver of a right to rescind will be presumed against a party who, having full knowledge of the circumstances which would warrant him in rescinding, nevertheless accepts and retains benefits accruing to him under the contract." (Neet v. Holmes (1944) 25 Cal.2d 447, 458.) The facts in Bancroft, although the converse of those in the present appeal, are remarkably similar. There, after a landlord was fully aware of his rescission rights and had sued to rescind a lease, he continued to collect rents. (Bancroft, at p. 111.) Because the collection of rents "was [an] unequivocal affirmance of the lease," it "destroyed whatever right of rescission he might theretofore have had." (Neet, at p. 458, citing Bancroft.)

Communities for a Better Environment v Energy Resources Conservation and Development Commission

The second important difference in the amended version of section 25531(a) is that the provision now applies to all Energy Commission site certificates, not just those where an electrical utility will also apply for a PUC need certificate. The "narrow class of Energy Commission decisions" previously governed by section 25531(a) was the class of site certificates for which the PUC would also receive an " ‘application for a [need certificate] for the same site and related facility.’ " ( County of Sonoma, supra , 40 Cal.3d at pp. 366–367 & fn. 6, 220 Cal.Rptr. 114, 708 P.2d 693.) It was precisely because, for these power plants, the site certificate was "prerequisite to" the PUC's issuance of a need certificate, that the Supreme Court concluded former section 25531 expedited "authorization of electric generating plants through ... the PUC itself," and on that basis survived constitutional attack. ( Id . at pp. 370–371, 220 Cal.Rptr. 114, 708 P.2d 693.) By contrast, today section 25531(a) constrains judicial review of Energy Commission decisions "on any application for certification of a site and related facility." (Italics added.) The provision is no longer "carefully tailored to apply only to" those Energy Commission decisions on which PUC licensing depends. ( County of Sonoma , at p. 370, 220 Cal.Rptr. 114, 708 P.2d 693.) The significance of this second change looms large when one considers broader changes in the process by which the PUC regulates the energy industry that have occurred since County of Sonoma . "[I]n the early 1990's California began a process of restructuring electricity service by introducing competition in the generation of electricity, with the ultimate objective of achieving lower rates for consumers." ( Independent Energy Producers Assn. v. McPherson, supra , 38 Cal.4th at pp. 1025–1026, 44 Cal.Rptr.3d 644, 136 P.3d 178.) A key component of this restructuring process was a "deregulation plan" adopted by the Legislature in 1996, which was design...

People v Hernandez 2

The Attorney General argues the court clearly indicated what it would have done if it had the discretion now conferred by Senate Bill 620. Specifically, that the court's rulings imposing the upper term on the robbery count, and consecutive terms on the counts 1 and 3, clearly indicate it would not have stricken defendant's firearm enhancements. The Attorney General notes that the court stated it was selecting the upper term on the robbery count "on the grounds that the crime involved great violence, great bodily harm, and that the defendant was armed at the time of the commission of the crime. The defendant engaged in violent conduct, and his prior convictions are of increasing seriousness. [¶] There are no factors in mitigation...." However, the court's statements about selecting the upper term from robbery are only a "clear indication" of its views on that particular sentencing decision. (Cf. Bell, supra, 47 Cal.App.5th at p. 153.) Whether to strike a firearm enhancement is a different decision than selecting the lower, middle, or upper term for a robbery conviction. Certainly, there are times when a court's statements as to one sentencing decision come from the court's belief that the defendant should receive the harshest sentence possible across all counts and enhancements. Other times, courts will impose the harshest sentence possible on one count, while striking or selecting lesser terms for other counts and enhancements. It is simply too speculative for us to determine which of these possibilities would have been true here if the court had the discretion now conferred by Senate Bill 620. Consequently, we will remand the matter.

People v Quiroz Muniz

But even were we to address the merits of his constitutional claim, it would still fail. "'As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense.'" (People v. Blacksher (2011) 52 Cal.4th 769, 821; see People v. Hovarter (2008) 44 Cal.4th 983, 1010 [the "routine application of state evidentiary law does not implicate [a] defendant's constitutional rights'"]; Morrison, supra, 34 Cal.4th at p. 724 ["the United States Supreme Court has never suggested that states are without power to formulate and apply reasonable foundational requirements for the admission of evidence"].) "Although completely excluding evidence of an accused's defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense."' [Citation.]" (People v. Thornton (2007) 41 Cal.4th 391, 443.) Here, neither defendant's citizen's arrest or self-defense arguments were curtailed by the court's ruling. Furthermore, as discussed, his "active shooter" documents were at best merely speculative because counsel could not tie them to any evidence defendant was either aware of them or acted based on them. Their exclusion did not abridge defendant's rights to present his defense. 5. Release of Confidential Juror Information

Kevin P v Superior Court

The juvenile court concluded that the criminal-sophistication criterion weighed in favor of transfer to criminal court. After observing that Kevin was about 17 and a half years old at the time of the offense, the court reviewed evidence that he was a normally functioning teenager. The court noted that he seemed to be "of normal intelligence," based on educational testing and his obtaining of a diploma while in juvenile hall, and "his cognitive functioning seem[ed] to be perfectly fine and [was] not impaired." The court also noted that although it accepted the testimony about adolescent brain development, Dr. Shields had "opined that Kevin has good executive functioning." The court observed that Kevin's "family background ... is unusually devoid of any type of abuse; either emotional, physical, any type of what I would refer to as difficulty in his upbringing." And while "his older brother was reported to be a gang member," it did not "appear that his brother influenced him in any way. It sounds like [Kevin] had very positive adults surrounding him." Finally, the court found that "external influences" did not appear to play a role in the offense. To the contrary, Kevin had shown "the ability ... to make good decisions in the face of tremendous pressure" by resisting gang affiliation. The juvenile court also addressed Dr. Shields's opinion that Kevin's unsuccessful attempts to cover up the crime demonstrated a lack of criminal sophistication. After expressly finding Dr. Shields's testimony credible, the court stated that it nevertheless "did not necessarily agree with everything that Dr. Shields said." The court acknowledged that Kevin "clearly made some botched efforts to conceal what had occurred," but it also observed that "for several weeks" after the crime "he acted as if honestly nothing had happened" and might have escaped detection altogether "[b]ut for the phone calls that were discovered [in] the phone records." The court found that Kevin's efforts at concea...

People v Short

The trial court denied Short's request on multiple grounds. As a threshold matter, the court observed section 1001.36 provided for "pre-conviction diversion." However, the court then proceeded to consider the factors applicable to mental health diversion. The court relied on Dr. Knapke's opinion there "was no clinical basis to support that the defendant had a major mental illness or disorder"; Short denied any history of a mental illness or disorder; and Short did not exhibit any bizarre or unusual behavior while he was in jail. The court also found any mental disorder Short suffered from did not play a significant role in the charged offense. The court explained, "There's no report that I'm aware of that shows that his schizophrenia or any other mental illness played a significant role in the defense in this case. He was simply stealing and then hitting the manager to avoid being arrested. He could have simply walked out the store. [¶] Based on [the store's] policy, he never would have even been chased down or arrested probably, but he chose instead to assault the manager, in my opinion, out of revenge for the manager threatening or telling him to leave and threatening to call the police." The court further found, "There's no treatment plan in place that would address his mental health issues or prevent him from engaging in future criminal conduct, . . . and I think he represents a substantial threat to the safety of the community."

People v Peralez

The tailored version of CALCRIM No. 315 provided to the jury read: "You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. [¶] In evaluating identification testimony, consider the following questions: [¶] • Did the witness know or have contact with the defendant before the event? [¶] • How well could the witness see the perpetrator? [¶] • What were the circumstances affecting the witness's ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation? [¶] • How closely was the witness paying attention? [¶] • Was the witness under stress when he or she made the observation? [¶] • Did the witness give a description and how does that description compare to the defendant? [¶] • How much time passed between the event and the time when the witness identified the defendant? [¶] • Was the witness asked to pick the perpetrator out of a group? [¶] • Did the witness ever fail to identify the defendant? [¶] • Did the witness ever change his or her mind about the identification? [¶] • How certain was the witness when he or she made an identification? [¶] • Are the witness and the defendant of different races? [¶] • Was the witness able to identify other participants in the crime? [¶] • Was the witness able to identify the defendant in a photographic or physical lineup? [¶] • Was the witness affected by viewing the surveillance video? [¶] • Were there any other circumstances affecting the witness's ability to make an accurate identification? [¶] The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find the defendant not guilty." (Italics added to indicate an addition to the pattern instruction.)

People v Oats

We also question the validity of Oats's contentions on the merits. Oats relies primarily on Cervantes in support of his contentions that a number of conditions improperly delegate to the probation officer the court's authority to set the conditions of probation. However, Cervantes involved the delegation of the calculation of restitution; but the calculation of restitution is specifically reserved for the court, pursuant to statute. (Cervantes, supra, 154 Cal.App.3d at p. 356.) Cervantes does not stand for the proposition that a court may never delegate to the probation officer some decision-making authority with regard to the precise implementation of probation conditions. Leaving certain day-to-day decision-making to a probation officer often makes sense and is necessary, in fact, because the "trial court is poorly equipped to micromanage" the selection of programs or tools that assist a probationer in his or her rehabilitation. (People v. Penoli (1996) 46 Cal.App.4th 298, 308.) Further, it seems apparent that under the terms of the challenged conditions, the court effectively authorized the conditions but permitted the probation officer to determine whether to implement them, depending on Oats's performance on probation, thereby placing Oats in a better position than he would have been if the court had simply imposed the conditions without allowing the probation officer to determine that such conditions were not in fact necessary for the effective supervision of Oats. Essentially, the court has determined that Oats may be subjected to these conditions, and that they should be imposed. However, Oats may avoid having the conditions applied to him if he successfully performs on probation without them. --------

Young v County of Los Angeles

The allegations of the complaint show the statute of limitations was tolled by the continuing violations doctrine, because Young was subjected to a series of continuing violations that were sufficiently similar in kind, occurred with reasonable frequency, and did not acquire a degree of permanence until she felt forced to resign as a result of her working conditions. The evidence provided by the County in support of the motion for summary judgment, of which we have taken judicial notice on appeal, shows the discipline imposed for the September 17, 2013 incident included the involuntary transfer to the Central facility in 2013 and a confirmation of conference provided 10 months later in May 2014, which was within the one-year period of Young's administrative charge. Young alleged that in connection with her transfer to the Central facility, the County revoked the security clearance that she needed to perform her job function and did not restore the clearance during the time that she worked at the Central facility. The County informed her new supervisors and co-workers at the Central facility that she had been transferred because she assaulted a director at the Vermont facility, which the County knew was not true. The time withheld during the month that she was suspended was not replaced, although the suspension was revoked and despite repeated attempts to have the accounting corrected while she was at the Central facility. Three months after the confirmation of conference was delivered to her at the Central facility, she felt her working conditions had become so intolerable that she was compelled to resign. Following her resignation she had certain reinstatement rights, but management employees took action to prevent her from being reinstated as part of their retaliatory conduct. It is reasonable to conclude that a DFEH investigation of the allegations in the 2015 administrative charge would lead to investigation of the County's subsequent retaliatory acts within t...

People v White

Defendant does not dispute that the evidence supports the conclusion that he "personally acted with conscious disregard for life." However, he argues that a reasonable jury could have concluded that he (defendant) was provoked to shoot. Specifically, Juan's firing of Victor's gun in order to empty its clip constituted "considerable provocation." The remaining provocative acts were committed by Victor, not defendant. However, the prosecution only needs to establish that a defendant harbored malice when he or she committed the provocative act in question or at the time he or she aided and abetted the underlying felony. (See Mejia, supra, 211 Cal.App.4th at p. 604.) Here, the jury necessarily concluded that defendant knew of his accomplices' intent to commit robbery and intended to facilitate, promote, encourage or instigate the robbery. He then carried a firearm into the residence where the home invasion robbery was to occur. This was more than sufficient to show defendant was acting with a conscious disregard to human life before he or Juan ever fired a gun. This conduct clearly presents a real danger that any victims in the home could respond with lethal force. Thus, even assuming for the moment that a rational juror could conclude Juan "provoked" defendant to fire his weapon, the fact remains that he entered a home with a gun knowing that his accomplices intended to commit a home invasion robbery. It was clearly established that defendant harbored a conscious disregard for human life when he aided and abetted the home invasion robbery. IV. Defendant has not Established Error Under People v. Chiu

Madden v City of Redwood City

Madden relies upon Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47-48, to argue that specificity in pleading is not required because she is alleging collusion, not fraud. That case, referring to fraud as "the only remaining cause of action in which specific pleading is required to enable the court to determine on the basis of the pleadings alone whether a foundation existed for the charge," held general allegations of agreement were sufficient to state a cause of action for conspiracy in restraint of trade. (Id. at p. 47.) The case did not consider pleading requirements in the context of a taxpayer suit alleging fraud or collusion to contest an otherwise unreviewable exercise of a municipality's discretion and therefore does not cause us to depart from the analysis of more on-point authorities. Gilbane Building Co. v. Super. Ct. (San Diegans for Open Government (2014) 223 Cal.App.4th 1527 (Gilbane), which Madden cites for the rule that "illegal contracts may be voided by taxpayer 526a suits," does not assist her. Madden notes the Gilbane court's statement that "[w]hether the contracts are void is not a matter within the District's discretion." (Id. at p. 1533.) The taxpayer suit in that case challenged contracts made by a school district as violating Government Code 1090, which prohibits members of a district from having a financial interest in contracts made in their official capacity. (Id. at pp. 1530, 1532.) A contract made in violation of Government Code section 1090 is void. (Gilbane, at p. 1532) Gilbane noted that "[i]f the governing body has discretion in the matter, the taxpayer may not interfere" (ibid.), but in claiming violations of Government Code 1090, the taxpayers were "not seeking to usurp the District's discretion in managing its affairs. Rather, if the allegations in [the plaintiffs'] complaint are true, the District expended funds illegally and the subject contracts are void, not merely voidable. Whether the contracts are voi...

Spotlight on Coastal Corruption v Kinsey

However, as this court stated in Klem v. Access Ins. Co. (2017) 17 Cal.App.5th 595, 225 Cal.Rptr.3d 711, " ‘language that appears clear and unambiguous on its face may be shown to have a latent ambiguity when some extrinsic factor creates a need for interpretation or a choice between two or more possible meanings.’ " ( Id. at p. 620, 225 Cal.Rptr.3d 711 ) For example, in Klem , an insurance company determined that a vehicle was a total loss; however, the owner, who used the vehicle to transport his severely ill wife to medical appointments, had the car repaired. ( Id. at p. 604, 225 Cal.Rptr.3d 711.) Vehicle Code section 544, subdivision (a) defines "total loss" as resulting when one of the identified persons " ‘considers it uneconomical to repair the vehicle and because of this, the vehicle is not repaired by or for the person who owned the vehicle at the time of the [accident].’ " ( Klem , at p. 620, 225 Cal.Rptr.3d 711, italics added.) Because the owner in Klem repaired the car, he claimed the insurer should not have declared it a total loss. Under the plain meaning of the Vehicle Code, the owner was correct: the car was not a total loss because it was "repaired by or for the person who owned" it at the time of the accident. Nevertheless, we held that the statute was ambiguous because it "contemplate[d] a person will consider a vehicle uneconomical to repair, and ‘because of this,’ not repair it. It does not envision someone nevertheless will elect to repair the vehicle, and its application in that scenario is ambiguous." ( Klem , at p. 620, 225 Cal.Rptr.3d 711.) In Varshock v. California Department of Forestry and Fire Protection (2011) 194 Cal.App.4th 635, 125 Cal.Rptr.3d 141, this court applied a similar approach to a statutory interpretation issue. In that case, property owners sought refuge inside a fire truck as fire raged towards their property. ( Id. at p. 639, 125 Cal.Rptr.3d 141.) Firefighters exited the truck to fight the fire, but returned as the fir...

San Diego County Health and Human Services Agency v Michelle F In re EF

In September 2016, Mother brought E.F. into the school office and stated that she was planning to take E.F. to the hospital because E.F. had tried to push her sister down the stairs. Mother stated that she did not want E.F. anymore. She then left with E.F. but called the school shortly thereafter and said that E.F. was "flipping out." The staff convinced Mother to return and noted that E.F. was sitting in the car calmly when she and Mother arrived. Mother stated that E.F. was a danger to herself or others and left again, but then called the school and said that she was bringing E.F. back. The school told Mother that E.F. could not return to school given Mother's statements and that Mother should take E.F. to the hospital if she felt that E.F. posed a danger to herself or others. Mother returned, left E.F. in the school office, and drove off, but then came back to retrieve E.F. a few minutes later, after the school staff informed her that leaving E.F. at the school would be considered abandonment. In addition, the school indicated that Mother was not cooperative in addressing E.F.'s mental health issues and that Mother had a pattern of removing or interfering with E.F.'s support system whenever E.F. began to make progress.

SC v Superior Court

At a six-month review hearing, when a child is under three at the time of his or her initial removal, the court has the discretion under certain circumstances to set a 366.26 hearing and to terminate reunification services. (§ 366.21, subd. (e)(3); hereafter § 366.21(e)(3).) The juvenile court at the six-month review must make "two distinct determinations" in ascertaining whether it has and may exercise such discretion under section 366.21(e)(3). (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 175 (M.V.).) "First, the statute identifies specific factual findings—failure to participate regularly and make substantive progress in the court-ordered treatment plan—that, if found by clear and convincing evidence, would justify the court in scheduling a [366.26 hearing] to terminate parental rights. . . . [¶] The second determination . . . [is that, n]otwithstanding any findings made pursuant to the first determination, the court shall not set a [366.26 hearing] if it finds either (1) 'there is a substantial probability that the child . . . may be returned to his or her parent . . . within six months . . .'; or (2) 'reasonable services have not been provided . . .' to the parent. [Citation.] In other words, the court must continue the case to the 12-month review if it makes either of these findings." (Id. at pp. 175-176.) But if the court, in making both determinations, concludes that it is thereby empowered to set a [366.26 hearing], it is nonetheless not compelled to do so. Section 366.21(e)(3) merely authorizes the juvenile court, in its discretion, to set a [366.26 hearing]. (M.V., supra, at p. 176; see also S.T. v. Superior Court (2009) 177 Cal.App.4th 1009, 1015-1016.) If the court at the six-month review hearing exercises its discretion to set a 366.26 hearing within 120 days, it must terminate reunification services at that time. (§ 366.21, subd. (h).) But the juvenile court may not order a 366.26 hearing "unless there is clear and convincing evidence that rea...

Max v Shih

Indeed, the November and December 2015 communications to shareholders appear to assume, without expressly stating, that the distribution of proceeds will follow the corporation's liquidation. The reference to the "liquidation preferences" as a basis for the distribution in the December 2015 letter of transmittal, however, reasonably implies that the distribution will occur in connection with liquidation. Even if liquidation is not implied in the 2015 letters to shareholders, Max does not explain how the omissions were material or raise a triable issue of fact regarding the directors' good faith in making their decision to liquidate. Although he suggests that a fuller disclosure might have led the shareholders to reject the plan to liquidate, the suggestion is not reasonable because the alternative to liquidation is having the corporation retain the Trustwave proceeds, thereby depriving the shareholders of their use, when the corporation had no plan for using the money. Without assets (other than cash), intellectual property, employees, or business operations of any kind, there is nothing to suggest that the corporation could have put the Trustwave proceeds to a use more productive than distributing the proceeds to the shareholders themselves. Indeed, Max does not suggest an alternative use for the funds. The fact that the 2015 letters to shareholders did not express what they implied—that distribution of the Trustwave proceeds would coincide with liquidation—does not, therefore, create a triable issue of material fact. Moreover, because Max did not tender his shares in response to the November and December 2015 letters or give his consent to the distribution, he did not rely on any misrepresentations in such letters and he offers no evidence that any other shareholder acted in reliance thereon. The alleged misrepresentations, therefore, are not actionable.

People v Swinney

We analyze the totality of the circumstances to determine whether Swinney acted with reckless indifference to human life. (Scoggins, supra, 9 Cal.5th at p. 677.) With respect to the first Clark factor, there was no evidence any weapons were used during the felony; the victim was killed by blunt force trauma to the head. On the second Clark factor, evidence of Swinney's presence at the murder supported a finding he acted with reckless indifference to human life. "Proximity to the murder and the events leading up to it may be particularly significant where . . . the murder is a culmination or a foreseeable result of several intermediate steps . . . . In such cases, 'the defendant's presence allows him to observe his cohorts so that it is fair to conclude that he shared in their actions and mental state. . . . [Moreover,] the defendant's presence gives him an opportunity to act as a restraining influence on murderous cohorts. If the defendant fails to act as a restraining influence, then the defendant is arguably more at fault for the resulting murders.' " (Clark, supra, 63 Cal.4th at p. 619; see Garcia, supra, 46 Cal.App.5th at p. 148 ["Presence at the scene of the murder is a particularly important aspect of the reckless indifference inquiry"].) Here, the evidence established Swinney was present at the laundromat and in the storage room where Clark's body was left. As discussed above, the evidence permitted the conclusion Swinney was the actual killer, but at a minimum, there was evidence Swinney tied Clark up, struck Clark or was aware Clark had been hit in the head multiple times, checked on Clark and saw he was unresponsive, and left Clark immobilized and face down on the floor. Additionally, Swinney personally stole the recording system for the laundromat's security cameras from the same room where Clark's body was found. From this evidence a reasonable jury could conclude Swinney was present at the scene of the murder—a fact tending to establish that if he was ...

Southfork Ranch v Bunn

Assessing the gravamen of the case, we conclude — as did the trial court — that the actions were on a contract. Although the causes of action for interference with easement and trespass typically sound in tort, analyzing those claims requires an interpretation of the CC&R's. In other words, respondents' acts were fundamentally related to and performed under the auspices of the rights and obligations delineated by the CC&Rs. (See, e.g., Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1608 [holding that a wrongful eviction action under a housing ordinance was "on a contract" because it was "fundamentally . . . based upon the lease, in that respondent sought compensation for appellant's wrongful interference with respondent's occupation and enjoyment of the leased premises"]; Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 347-348 [equitable action seeking declaratory and injunctive relief and to quiet title based on violations of the terms of a promissory note and deed of trust are actions on a contract]; Texas Commerce Bank v. Garamendi (1994) 28 Cal.App.4th 1234, 1246-1247 ["Actions for a declaration of rights based upon an agreement are 'on the contract' within the meaning of Civil Code section 1717" where "the issues in the case had . . . everything to do with the interpretation of the [relevant contracts]"].)

People v Lara

In addition, Lara asserts that there was sufficient evidence for the jury to conclude that Doe 1 had made a prior false rape allegation and the trial court's finding that no false rape accusation occurred was not supported by substantial evidence. We acknowledge that Doe 1 made several conflicting statements about the December 2013 incident to Detective Freitas. In the interview with Freitas, Doe 1 initially accused her peers T. and M. of committing nonconsensual, forcible sexual acts against her. By the end of the interview, however, Doe 1 materially altered those allegations and described the sexual acts as unforced. She also made statements to the trial court during the Evidence Code section 402 hearing that conflicted with what she had said to Freitas. For example, during her hearing testimony, Doe 1 said she had sexual intercourse with both T. and M., but during her interview with Freitas, she made clear that she did not have sex with M. In our judgment, some of Doe 1's statements are irreconcilable and could be evidence of a character trait for dishonesty. Nevertheless, we need not reach the question whether substantial evidence supports the trial court's finding that Doe 1 had not made a false rape accusation against T. or M.

People v Sanchez

CALCRIM 571 provides: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because (he/she) acted in (imperfect self-defense/ [or] imperfect defense of another). [¶] If you conclude the defendant acted in complete (self-defense/ [or] defense of another), (his/her) action was lawful and you must find (him/her) not guilty of any crime. The difference between complete (self-defense/ [or] defense of another) and (imperfect self-defense/ [or] imperfect defense of another) depends on whether the defendant's belief in the need to use deadly force was reasonable. [¶] The defendant acted in (imperfect self-defense/ [or] imperfect defense of another) if: [¶] 1. The defendant actually believed that (he/she/ [or] someone else/ ) was in imminent danger of being killed or suffering great bodily injury; [¶] AND [¶] 2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; [¶] BUT [¶] 3. At least one of those beliefs was unreasonable. "Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. [¶] In evaluating the defendant's beliefs, consider all the circumstances as they were known and appeared to the defendant." [¶] [A danger is imminent if, when the fatal wound occurred, the danger actually existed or the defendant believed it existed. The danger must seem immediate and present, so that it must be instantly dealt with. It may not be merely prospective or in the near future.] [¶] [Imperfect selfdefense does not apply when the defendant, through (his/her) own wrongful conduct, has created circumstances that justify (his/her) adversary's use of force.] [¶] [If you find that threatened or harmed the defendant [or others] in the past, you may consider that information in evaluating the defendant's beliefs.] [¶...

LA County Department of Children and Family Services v JH In re AH

On May 24, 2018, DCFS filed an ex parte application seeking a restraining order protecting the children from mother, and an order that mother's visits take place at the DCFS office, to be monitored by someone other than maternal grandparents. DCFS reported that between May 10 and May 13, mother repeatedly reported to DCFS, to police, and on Facebook that the children were being abused by maternal grandparents. On May 12 the social worker witnessed mother yelling outside of maternal grandparents' house saying to the children, "Tell the social worker the truth. She's not here to hurt you. . . . Tell her the truth about Papa" (maternal grandfather). The children were yelling back, "[M]ommy stop lying. Poppa doesn't hit us. Mommy stop lying." After mother agreed to leave the home, A.H. told the social worker, "I know [mother] is sick right now and this is what happens when she is sick. My poppa would never hurt us." On May 13, 2018, mother called adult protective services and alleged that maternal grandparents were abusing the maternal great-grandfather who lived in maternal grandparents' home. Maternal grandparents reported that on the night of May 13, 2018, mother came to their home and threw rocks at the house; she yelled, woke up neighbors, and threatened to call police on maternal grandfather. Maternal grandparents and neighbors called police; while mother was being arrested, she began fighting and kicking the police officer. Mother was arrested for battery on a peace officer, released on bail, then hospitalized.

St Mary and St John Coptic Orthodox Church v SBC Insurance Services

As applied, the terms "customary operations" and "business personal property" were not ambiguous merely because the policy did not define them. (See Bay Cities Paving & Grading, Inc. v. Lawyers’ Mutual Ins. Co . (1993) 5 Cal.4th 854, 866, 21 Cal.Rptr.2d 691, 855 P.2d 1263 [term that was undefined was not necessarily ambiguous]; Brown v. Mid-Century Ins. Co . (2013) 215 Cal.App.4th 841, 858, 156 Cal.Rptr.3d 56 [undefined term did not render a policy unclear].) St. Mary was insured as a religious organization, and it planned to use the "building" where the loss occurred as a residence for the Coptic Pope in the western United States and for visiting clergy. Thus, the residence was vacant if it lacked sufficient personal property to conduct operations as a residence for the Coptic Pope and for these clergy. Further, for the three days before escrow closed, the residence was vacant if it did not contain enough personal property to operate in accordance with its customary use as a residence. With respect to the 58th, 59th, and 60th days before the loss, we reject the trial court's interpretation that the residence was not vacant because its customary operations were that of a residence for sale rather than a normal residence. On this issue, we find the out-of-state authorities cited by St. Mary persuasive. In Oakdale Mall Assocs. v. Cincinnati Ins. Co. (8th Cir. 2012) 702 F.3d 1119, 1121, the insured suffered a loss at a shopping mall it owned, and the insurer denied coverage due to a vacancy provision. ( Ibid. ) The mall was deemed vacant unless at least 31 percent of its total square footage was "rented to a lessee or sub-lessee and used by them to conduct their customary operations; or used by the building owner to conduct customary operations." ( Ibid. ) At the time of the loss at issue, the mall had only four tenants open for business occupying less than 31 percent of its square footage. ( Id. at p. 1122.) Nonetheless, the insured owner argued that because it was ...

People v Jaimes Mendoza

In 2012, defendant Juan Gabriel Jaimes-Mendoza was found not guilty of murder by reason of insanity for killing his wife in 2010 and committed to a state hospital. In 2018, the director of the state hospital recommended conditional outpatient treatment for defendant as provided under Penal Code section 1600, et seq., and, pursuant to that statutory scheme, the trial court held an evidentiary hearing to consider the recommendation. The state hospital doctors who treated defendant and the representative of the county conditional release program who interviewed him and developed an outpatient treatment plan for him testified that defendant had no current symptoms of mental illness and was suitable for outpatient treatment with supervision. The People questioned the state hospital doctors' diagnosis of amphetamine-induced psychotic disorder and presented witnesses who had reached different diagnoses of defendant when they evaluated him in 2011 in connection with the proceedings that resulted in a finding that defendant was not guilty by reason of insanity. But the People's witnesses had not seen defendant since 2011, and the People did not dispute that defendant had been symptom-free and a cooperative patient for the length of his commitment and that he never exhibited any violence or behavioral problems. At the conclusion of the hearing, the trial court denied defendant outpatient status, apparently on the ground that it could not accept the state hospital doctors' current diagnosis in light of the different diagnoses defendant had received in 2011.

People v Angeles

Accordingly, as California courts repeatedly have recognized, "'[a]cts of grabbing, holding and restraining that occur in conjunction with the lewd acts themselves' are sufficient to support a finding that the lewd act was committed by means of force." (People v. Morales, supra, 29 Cal.App.5th at p. 480 ["defendant's 'grabbing, holding, and restraining' of Jane Doe 1 to facilitate his lewd act was substantial evidence of the requisite force"]; accord, People v. Jimenez, supra, 35 Cal.App.5th at p. 393 [jury reasonably could infer defendant used physical force where victim "testified that she tried pushing [defendant] away, and although that would make him stop, 'he would try again and try again' right away"]; People v. Garcia, supra, 247 Cal.App.4th at p. 1024 [the defendant's acts of grabbing the victim's hands to keep her from moving while he touched her vagina and holding her on the floor with his body while he placed his penis on her vagina supported conviction for forcible lewd conduct]; People v. Alvarez, supra, 178 Cal.App.4th at p. 1005 [sufficient evidence of force where defendant "grabbed [victim's] hand and made her hold his penis," and "[w]henever she let go, he took her hand and brought it back to his genital area"]; People v. Bolander, supra, 23 Cal.App.4th at p. 159 ["we conclude that defendant's acts of inhibiting Ryan from pulling his shorts back up, bending Ryan over, and pulling Ryan towards him constitute force within the meaning of subdivision (b) of section 288"]; People v. Neel, supra, 19 Cal.App.4th at p. 1790 ["defendant's acts of forcing the victim's head down on his penis when she tried to pull away and grabbing her wrist, placing her hand on his penis, and then 'making it go up and down' constitute force" within meaning of section 288, subdivision (b)]; People v. Babcock, supra, 14 Cal.App.4th at p. 386 [substantial evidence supported defendant's convictions for forcible lewd acts where "evidence demonstrate[d] defendant grabbed [victims...

Castro v Bank of America

Regarding disability discrimination, a plaintiff demonstrates a prima facie case "by presenting evidence that demonstrates, even circumstantially or by inference, that he or she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability. [Citation.] To establish a prima facie case, a plaintiff must show '"'"actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were 'based on a [prohibited] discriminatory criterion . . . .'"'"'" (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310.) Castro argues she "more than cleared" this hurdle by submitting evidence of the comment from Jones about missing sales opportunities by not using the iPad, and the comment from Sanchez about her swollen hands. We disagree. Jones's comment can only reasonably be interpreted as a concern that sales opportunities were being missed because Castro was not using the iPad -- a concern she addressed by using her computer. Castro admitted she was never disciplined for not using the iPad, nor was it ever raised in a performance review. Sanchez's comments can only reasonably be construed as evidencing concern for Castro's wellbeing and/or admiration for her ability to work with swollen hands. Even without further explanation from the Bank, no reasonable factfinder could infer from these two pieces of evidence that Castro's termination was motivated by animus based on her disability. "Light" as the burden may be to make a prima facie showing, Castro failed to meet it.

Vaughn v Darwish

We reject this reasoning for three reasons. First, it is contrary to longstanding authority holding that a party's ability to seek relief in a new proceeding does not mean that the prior proceeding was terminated for a "procedural" and "technical" reason. (Sycamore Ridge, supra, 157 Cal.App.4th at p. 1401 [a party's "option to file a new action . . . at the time she voluntarily dismissed her claims" does not prevent the prior dismissal from constituting a "favorable termination"]; Jaffe v. Stone (1941) 18 Cal.2d 146, 152 (Jaffe) [a party's ability to initiate a "new proceeding" does not mean that prior "proceeding is [not] finally terminated" on the merits], italics omitted; Sierra Club, supra, 72 Cal.App.4th at p. 1151 [prior proceeding may be favorably terminated on the merits even if it is "not . . . incapable of revival or" does not "constitute a bar to further prosecution for the same offense"]; see generally Hurgren v. Union Mut. Life Ins. Co. (1904) 141 Cal. 585, 587 ["[t]he fact that . . . legal termination [of the prior lawsuit] would not be a bar to another civil suit . . . founded on the same alleged cause is no defense to the action for malicious prosecution"].) This authority applies whenever the prior action was an "independent, separate adversarial" proceeding "having a procedural life of its own" (rather than being a "subsidiary or purely defensive proceeding") (Sierra Club, at p. 1152; Camarena v. Sequoia Ins. Co. (1987) 190 Cal.App.3d 1089, 1094), and the 2012 unlawful detainer actions are unquestionably "independent" of, and "separate" from, any subsequent unlawful detainer actions that the landlord might have elected to file. Second, the trial court's reasoning, by looking to the "legal tenability" of the rejected claim in future lawsuits, is contrary to the authority holding that "'the legal tenability of the underlying action is not the standard by which to judge whether the action was terminated in [[the] plaintiff's] favor.'" (Crowley v. Kat...

Shirvanyan v LA Community College District

The evidence is insufficient to support Shirvanyan's interactive process and reasonable accommodation claims to the extent they are based on the District's handling of Shirvanyan's shoulder injury for the additional reason that the evidence does not reflect any failure to provide reasonable accommodation of that injury. This is because nothing in the record supports that Shirvanyan stopped working as a result of any action by the District. Rather, even viewing the evidence in the light most favorable to Shirvanyan, it establishes that, following Shirvanyan's shoulder injury, Shirvanyan indicated to the District that she would not be able to return to work until March 2016, that the District did not respond positively or negatively, and that Shirvanyan did not return to work at any time thereafter. Nothing in the record suggests the District denied Shirvanyan the leave she requested by providing Dr. Nazaryan's medical release form indicating Shirvanyan would need to be off work until March 2016. Nothing in the record suggests the District fired Shirvanyan or told her not to return to work after her shoulder healed. And Shirvanyan does not argue that she quit because of the District's failure to accommodate any of her injuries—to the contrary, on appeal, she denies that she quit. The only evidence in the record bearing on why Shirvanyan did not return to work is testimony from Dr. Berg that he continued to view her shoulder injury as preventing such a return to work in late 2018. Thus, nothing suggests that, when Shirvanyan requested an accommodation for her shoulder injury—namely, medical leave until March 2016—the District refused. As a result, the evidence also does not support that the District had occasion to engage in the interactive process with Shirvanyan regarding her shoulder (given that nothing in the record suggests the District had denied her request for a reasonable accommodation in the form of temporary medical leave). On this basis as well, the evide...

Center for Healthcare Education and Research v International Congress for Joint Reconstruction

An action for disgorgement of a fiduciary's wrongful gains is sometimes referred to as seeking recovery of "secret profits." "Secret profits" consist of all benefits an agent acquires from the agency in excess of the agent's agreed compensation. ( Savage v. Mayer (1949) 33 Cal.2d 548, 551, 203 P.2d 9 ; see Bardis v. Oates (2004) 119 Cal.App.4th 1, 11, 13, 14 Cal.Rptr.3d 89 ( Bardis ) [partner violated partnership agreement and fiduciary duties by using a "dummy middleman" company to secretly mark up partnership invoices and collect the resulting profits].) Breach of the duties of loyalty and full disclosure may justify forfeiture of all income. ( J.C. Peacock, Inc., supra , 196 Cal.App.2d at p. 358, 16 Cal.Rptr. 518.) "An agent's breach of fiduciary duty is a basis on which the agent may be required to forfeit commissions and other compensation paid or payable to the agent during the period of the agent's disloyalty." ( Rest.3d Agency § 8.01, subd. (d)(2).) Here, there was no agreement as to the amount of Sacaris's (or CHE's) compensation. Sacaris, on behalf of CHE, nevertheless proceeded to set CHE's rates, and compensate CHE, without adequate disclosure to the board of ICJR. This course of conduct breached the duties of loyalty and full disclosure. As the Restatement Third of Agency explains, "[a]n agent ... is not free to exploit gaps or arguable ambiguities in the principal's instructions to further the agent's self-interest, or the interest of another, when the agent's interpretation does not serve the principal's purposes or interests known to the agent. This rule for interpretation by agents facilitates and simplifies principals' exercise of the right of control because a principal, in granting authority or issuing instructions to an agent, does not bear the risk that the agent will exploit gaps or ambiguities in the principal's instructions." ( Rest.3d Agency, § 1.01, com. e.) Moreover, "[i]f an agent acts on behalf of the principal in a transaction with th...

Yassa v Medical Board of California

After a trial court exercises its independent judgment to determine whether an agency's findings are supported by the weight of the evidence, an appellate court is limited to determining whether the trial court's findings are supported by substantial evidence. (Watson v. Superior Court (2009) 176 Cal.App.4th 1407, 1412.) In making that determination, we do not reweigh the evidence, but instead indulge all presumptions and resolve all conflicts in favor of the decision. (Arthur v. Department of Motor Vehicles (2010) 184 Cal.App.4th 1199, 1205; Rivard v. Board of Pension Commissioners (1985) 164 Cal.App.3d 405, 412-413.) When two or more inferences reasonably can be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trial court. (Shea v. Board of Medical Examiners (1978) 81 Cal.App.3d 564, 578; see also Shelden v. Marin County Employees' Retirement Assn. (2010) 189 Cal.App.4th 458, 464 [if a finding is supported by substantial evidence, it is irrelevant that the record also contains evidence that would have supported a different finding].)

Ochoa v TM Duche Nut

"A fifth exception to the general rule of successor nonliability was created by the Supreme Court in Ray . . . ." (Fisher, supra, 95 Cal.App.4th at p. 1188.) In Ray, the high court concluded "that a party which acquires a manufacturing business and continues the output of its line of products . . . assumes strict tort liability for defects in units of the same product line previously manufactured and distributed by the entity from which the business was acquired." (Ray, supra, 19 Cal.3d at p. 34; see ibid. ["By taking over and continuing the established business of producing and distributing [products], [the purchasing entity] bec[o]me[s] 'an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products.' "].) "Justification for imposing strict liability upon a successor to a manufacturer . . . rests upon (1) the virtual destruction of the plaintiff's remedies against the original manufacturer caused by the successor's acquisition of the business, (2) the successor's ability to assume the original manufacturer's risk-spreading role, and (3) the fairness of requiring the successor to assume a responsibility for defective products that was a burden necessarily attached to the original manufacturer's good will being enjoyed by the successor in the continued operation of the business." (Id. at p. 31, italics omitted.) This exception, known as the " 'product line successor' rule" (Fisher, supra, at p. 1188), applies only to strict products liability claims. (Franklin v. USX Corp. (2001) 87 Cal.App.4th 615, 628-629; Monarch Bay II v. Professional Service Industries, Inc. (1999) 75 Cal.App.4th 1213, 1217-1219; Maloney v. American Pharmaceutical Co. (1988) 207 Cal.App.3d 282, 289-290.)



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