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California Courts of Appeal | Top Cases | December 2020

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People v Ramos

" 'A "person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." ' " (People v. Nguyen (2015) 61 Cal.4th 1015, 1054 (Nguyen).) "Thus, proof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator's actus reus—a crime committed by the direct perpetrator, (b) the aider and abettor's mens rea—knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor's actus reus—conduct by the aider and abettor that in fact assists the achievement of the crime." (People v. Perez (2005) 35 Cal.4th 1219, 1225.) "[N]either presence at the scene of a crime nor knowledge of, but failure to prevent it, is sufficient to establish aiding and abetting its commission. [Citations.] However, '[a]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.' " (People v. Campbell (1994) 25 Cal.App.4th 402, 409.) Where, as here, "the charged offense and the intended offense . . . are the same, i.e., when guilt does not depend on the natural and probable consequences doctrine . . . the aider and abettor must know and share the murderous intent of the actual perpetrator." (People v. McCoy (2001) 25 Cal.4th 1111, 1118.)

People v Johnson 4

When it became clear to defendant's trial counsel that the trial court had precluded Williams's testimony in all areas, he requested an Evidence Code section 402 hearing. The trial court responded that it "ha[d] ruled." Counsel replied: "Mr. Williams and I have marked more than 20 photos. These were photos taken . . . during their investigation. These are photographs, and he is an expert in evidence collection, he is an expert and testified multiple times in evidence collection preservation, whether or not it is preserved properly, how it is collected. [¶] We have photos of people that we intend to use with him where they are using with their hand, touching pieces of evidence, which is directly in conflict with Officer McElhinney's testimony. There are different photos of same pieces of evidence with different photo markers. Multiple, multiple problems with this crime scene. They have not been presented to this jury. But the two photographs that have been presented to the jury by the district attorney, . . . one of them has a photo marker 40, one of them has a photo marker 3. They are the exact same piece of evidence and they have not been presented as such to the jury. Mr. Williams has analyzed and looked over every picture that was taken in this case, every procedure, every report, everything with regard to how the evidence was collected, preserved, maintained, tested, what wasn't collected, how it wasn't collected, and proper police procedure in this type of a rape case. He is an expert witness in criminal procedure, crime scene investigation, and he has done this and testified not only for the defense, mostly for the prosecution in this regard." Additionally, counsel argued that McElhinney testified there were drag marks at the crime scene, but drag marks did not appear in the photographs introduced at trial. McElhinney's testimony was that the drag marks appeared in other photographs, but those photographs were not shown at trial. According to counsel, Williams...

Yumori Kaku v City of Santa Clara

In Gomez v. Watsonville (9th Cir. 1988) 863 F.2d 1407, Hispanic residents challenged the city of Watsonville's at-large system of mayoral and city council elections under the federal Voting Rights Act. The Ninth Circuit viewed Watsonville's at-large election scheme as "the functional equivalent of the electoral scheme at issue in Gingles " ( id. at p. 1413 ) and applied the Gingles factors. Among the facts cited by the reviewing court, voting-age Hispanics comprised about 40 percent of Watsonville's residents and 37.0 percent of citizens, and no Hispanic had been elected as mayor or city council member prior to trial, though eight Hispanic candidates had run for city council positions and one Hispanic had run for mayor. ( Id. at pp. 1409-1410.) The court did not take a formulaic approach to assessing the third Gingles factor. Rather, it accepted the trial court's factual finding "that Hispanics and Anglos supported different candidates" ( id. at p. 1417 ) based on average support for Hispanic candidates by voters in predominantly white precincts as compared to in heavily Hispanic precincts and noted that a "pattern over time of minority electoral failure" was also probative under Gingles. These combined facts supported the district court's determination that "the non-Hispanic majority in Watsonville usually vote[d] sufficiently as a bloc to defeat the minority votes plus any crossover votes" ( ibid. ). In Pope v. County of Albany (2d Cir. 2012) 687 F.3d 565, 578, the Second Circuit explained that the law guiding application of the third Gingles factor "recognizes the need for some flexibility." Though Pope upheld the district court's finding that black and Hispanic voters failed to demonstrate a likelihood of success at the preliminary injunction stage on the third Gingles factor, because data omitted from the plaintiffs' expert's bloc voting analysis raised questions about the patterns presented ( id. at pp. 578-582 ), the court reiterated that flexibility is warra...

People v Koenig

Evidence of Armitage's misstatements, as testified to by the victims, is as follows. Count 3: In November 2004, Armitage called Corporate Note I, "a great investment" and described AREI as "a booming enterprise. They were buying, they were turning it over, everything was going great." Count 11: As to Corporate Note I, on Armitage "persuasiveness," the victims "thought we could earn more money in corporate note than sitting in the Lakeside Mortgage" Armitage also told them Corporate Note I was a "temporary solution and that at some time in the near future we could take the money out of corporate note and invest in ... another option." Count 12: As to Corporate Note I, "the wisdom [Armitage] shared with me is that if we spread our risk into more properties from specific properties, we would be protecting our assets better .... [¶] ... [¶] [T]he strength of our investment would be strengthened by being in the note ... over an individual property." Count 13: As to Corporate Note II, "[Armitage] said that it was liquid. I asked him if we would be able to get our money back any time we wanted and he said yes." [¶] "I asked Gary [Armitage] how I ... could feel about getting my money back, if I could trust that I would be able to do that. And he said that [defendant] was a multi-millionaire and that he could support the company and my loan." Count 17: The victim told Armitage he wanted proceeds from an earlier AREI investment to go to cash. The victim later discovered the proceeds had been transferred to Corporate Note II. When he called Armitage to complain, Armitage falsely claimed victim had authorized the transfer. Armitage also said he would get the paperwork to transfer the money out, but the victim never got his money back. Count 18: As to Corporate Note I, Armitage told the victim it was secured by property. And as to authorizing a debt increase from 20 million to 25 million, "[Armitage] told me it was some sort of legalese." Count 20: Armitage said defendant was a...

People v Weece

The trial court did not abuse its discretion in concluding the time, content, and circumstances of Doe 3's first CART interview provided sufficient indicia of reliability. Contrary to defendant's assertions, the trial court could have reasonably found that Doe 3's statements to Boland were largely made in response to open-ended questions. Indeed, our review of the record reveals Boland generally asked Doe 3 to tell her about defendant touching her, and Boland followed up on Doe 3's statements to obtain specific details about the incidents of abuse Doe 3 described. In asking Doe 3 to tell her about other times or incidents of abuse, we cannot conclude Boland was leading or suggesting to Doe 3 to lie or manufacture a response. Rather, in both CART interviews Boland emphasized the importance of Doe 3 telling the truth. Though Doe 3 initially reported only two instances of abuse, she later volunteered additional information regarding other incidents of abuse, which Boland followed up on in her questioning. To the extent defendant is challenging the reliability of the CART interview based on the consistency of Doe 3's answers, Doe 3 testified at trial, so she was subject to cross-examination regarding her credibility and any alleged prior inconsistent statements. Furthermore, the first CART interview was conducted less than a week after Doe 3 first reported sexual abuse. We also do not find that Doe 3 used unexpected terminology in describing the abuse nor does the record reveal Doe 3 had a motive to fabricate her statements during that interview. Additionally, nothing about the interview suggests Doe 3's mental state was in question at the time it was conducted. And, contrary to defendant's assertion, the court expressly stated it was reviewing the interviews to consider the time, content, and circumstances under which they took place. Thus, the record reflects the court was aware of and executed its duty to consider these factors in determining whether such evidence b...

Monterey County Department of Social and Employment Services v SB In re AG

The Department, in supplemental briefing requested by this court, argues that because a parent has the burden of establishing the parental relationship exception, including the fact that terminating parental rights would be detrimental to the minor ( In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350, 93 Cal.Rptr.2d 644 ), "the juvenile court in this instance was entitled to set a high bar regarding the mother's offer of proof." We find no language in Jeanette V., Tamika T. , or Grace P. suggesting that the juvenile court should "set a high bar" in evaluating the legal sufficiency of the parent's offer of proof, i.e., whether it is "specific, setting forth the actual evidence to be produced." ( Tamika T., supra , 97 Cal.App.4th at p. 1124, 118 Cal.Rptr.2d 873.) Rather, those cases hold simply that the juvenile court, if it so chooses and without offending due process, may condition the right to a contested hearing upon the parent's submission of a legally sufficient offer of proof regarding the parental relationship exception. A parent's failure to set forth specific evidence, especially with a record negating the parent's regular visitation of the minor, will justify the denial of a hearing. There is no suggestion in the cases that the parent's offer of proof must withstand a heightened scrutiny, and such a requirement would be antithetical to the notion that a parent, assuming he or she has offered probative and admissible evidence, is entitled to a contested hearing and an opportunity to persuade the court that the parental relationship exception to adoption and the termination of parental rights should be applied. Further, the Department's contention that the juvenile court may appropriately "set a high bar" in assessing the legal sufficiency of the parent's offer of proof to determine his or her entitlement to a hearing suggests the court may conduct, without a hearing, the discretionary process of balancing the potential detriment to the minor from terminati...

People v Wiley

Relying on People v. Ochoa, People v. Ramon, and People v. Albarran, defendant claims that the evidence in this case is insufficient to support either element of the gang enhancement, entitling him to reversal. (People v. Ochoa (2009) 179 Cal.App.4th 650, 653 (Ochoa) [evidence insufficient to support gang enhancement where the defendant acted alone when he demanded the victim's vehicle at gunpoint, and he was not wearing gang colors, did not flash any gang signs, and did not make any gang-related statements]; People v. Ramon (2009) 175 Cal.App.4th 843, 853 [presence of two gang members in gang territory in stolen truck with unregistered firearm insufficient to support gang enhancement, at least where gang expert did not identify possession of stolen vehicles as a primary activity of the gang]; People v. Albarran (2007) 149 Cal.App.4th 214, 217 (Albarran) [trial court reversed gang enhancements for insufficient evidence, but its error in admitting "extremely prejudicial gang evidence" also entitled the defendant to retrial on all charges]; see In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 [a minor's "criminal history and gang affiliations cannot solely support a finding that a crime is gang-related under section 186.22."].) Defendant points to the absence of any evidence that the crimes committed were gang related, other than defendant's and Tomlin's shared gang affiliation. The People respond that the jury could have reasonably inferred that Hollis was affiliated with ESC and the circumstances surrounding the crimes, namely that defendant shot a rival gang affiliate after that affiliate shot a respected member of defendant's gang, are sufficient to uphold the gang enhancement findings. For the reasons set forth below, we agree with defendant and reverse the gang enhancements attached to counts 1 through 3.

Anderson v City of San Francisco

"Specifically, for the seven impacts identified in the Court of Appeal opinion and the writ, the Revised Findings specify the seven identified impact numbers in the discussion of each project: 'Project 2-4: 17th Street Bicycle Lanes, Corbett Avenue to Kansas Street, Mod. Option 1; Project 2-6: Division Street Bicycle Lanes, 9th Street to 11th Street, Option 2' noted that 'the combined design modification of Project 2-4 and Project 2-6 result in a number of significant and unavoidable intersection and transit delay impacts, as further detailed in the section on significant and unavoidable impacts. (See Impact #38 through 44).' (See Exhibit C at p. 127.) The Revised findings then specify why the impacts are outweighed by the projects. Likewise, under 'Project 3-2: Masonic Avenue Bicycle Lanes, Fell Street to Geary Boulevard, Preferred Option not yet determined; Project 3-1 Fell Street and Masonic Avenue Intersection Improvements' the City noted that Project 3-2 by itself results in significant and unavoidable intersection and transit delay impacts as further detailed in the section on significant and unavoidable impacts. (See Impact #58-71.) (See Exh. C at p. 130.) Finally, under 'Project 6-5: Portola Drive Bicycle Lanes, Corbett Avenue to O'Shaughnessy Boulevard, Mod. Option 1; Project 6-6: Portola Drive Bicycle Lane, O'Shaughnessy Boulevard/Woodside Avenue to Sloat Boulevard/St. Francis Boulevard, Modified Option 2; Project 6-2: Clipper Street Bicycle Lanes, Douglass Street to Portola Drive, Option 1' the City noted that 'the combined design modifications of Project 6-5, Project 6-6, and Project 6-2 produces a significant and unavoidable transit delay impact in the cumulative condition, as further detailed in the section on significant and unavoidable impacts. (See Impact #101-102.) (See Exh. C at p. 132.) [¶] . . . [¶]

Antelope Valley Groundwater Cases

However, Phelan's contention that alleged deficiencies in the final statement of decision requires application of some standard of review other than the deferential substantial evidence standard is first raised in Phelan's reply brief. Ordinarily, " ‘[p]oints raised for the first time in a reply brief will ... not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.’ [Citation.] ... ‘ "Obvious considerations of fairness in argument demand that the appellant present all of his points in the opening brief. To withhold a point until the closing brief would deprive the respondent of his opportunity to answer it or require the effort and delay of an additional brief by permission. Hence the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before." ’ [Citation.]" ( Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) Even assuming Phelan had preserved this argument, it rests on a predicate that misconceives what is required in a statement of decision. Phelan's argument under Kemp and Affan is predicated on its assertion that a statement of decision which does not contain a detailed discussion of all of the evidence and a discussion of why the court chose to credit some evidence while rejecting other evidence affirmatively shows the court did not weigh the evidence in reaching its decision. However, a statement of decision is required only to set out ultimate findings rather than evidentiary ones. ( Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1125.) A trial court " ‘is not required to respond point by point to the issues posed in a request for statement of decision. The court's statement of decision is sufficient if it fairly discloses the court's determination as to the ultimate facts and material issues in the case.’ ( Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372, 1379–1380 ; ...

People v Zambrano

"'[N]o defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man. Thus, no man of extremely violent passion could so justify or excuse himself if the exciting cause be not adequate .... Still further, while the conduct of the defendant is to be measured by that of the ordinarily reasonable man placed in identical circumstances, the jury is properly to be told that the exciting cause must be such as would naturally tend to arouse the passion of the ordinarily reasonable man. But as to the nature of the passion itself, our law leaves that to the jury, under these proper admonitions from the court.' [Citation.] As the court long ago explained in People v. Jones (1911) 160 Cal. 358, 368, 'it is not a matter of law but a matter of fact for the jury in each case to determine under the circumstances of the case whether the assault or whether the blow, or whether the indignity or whether the affront, or whatever the act may be, was such as is naturally calculated to arouse the passions and so lessen the degree of the offense by relieving it from the element of malice.'" (Beltran, supra, 56 Cal.4th at pp. 950-951.) If, instead, the standard were purely subjective, "'then, by habitual and long continued indulgence of evil passions, a bad man might acquire a claim to mitigation which would not be available to better men, and on account of that very wickedness of heart which, in itself, constitutes an aggravation both in morals and in law.'" (Id. at p. 951.)

People v Sanford

However, subsequently the court in Rosales, supra, 222 Cal.App.4th 1254 considered the purpose of the corpus delicti rule and disagreed with the Rivas court, finding CALCRIM No. 359 was not confusing. According to Rosales, it is "well established that a defendant's inculpatory out-of-court statements may . . . be relied upon to establish his or her identity as the perpetrator of a crime. [Citations.] This is because the perpetrator's identity is not part of the corpus delicti. [Citations.] [¶] CALCRIM No. 359, like CALJIC No. 2.72, clearly so states. The corpus delicti rule is stated in the first two paragraphs of CALCRIM No. 359. The law concerning proof of identity by a defendant's extrajudicial statements is correctly stated in the third paragraph. There is no danger a jury will be unable to separate the two rules any more than in CALJIC No. 2[.]72 which has been approved by our Supreme Court . . . As noted CALJIC No. 2.72 states in part: 'The identity of the person who is alleged to have committed a crime is not an element of the crime [nor is the degree of the crime]. The identity [or degree of the crime] may be established by [a] [an] [confession] [or] [admission].' CALCRIM No. 359 states with greater precision and economy of language, 'The identity of the person who committed the crime [and the degree of the crime] may be proved by the defendant's statement[s] alone.' CALCRIM No. 359 correctly states the law. [Citations.] There was no reasonable likelihood the jury was confused and misapplied the instruction. Finally, CALCRIM No. 359 reminds the jury that the accused may not be convicted unless the prosecution proves guilt beyond a reasonable doubt. CALJIC No. 2.72, which was approved by our Supreme court in [People v.] Foster [(2010) 50 Cal.4th 1301,] contains no such reminder." (Rosales, supra, 222 Cal.App.4th at pp. 1260-1261.)

People v Avalos

We decline to expand Dueñas's holding beyond the unique facts found in Dueñas. In Lowery, two defendants were convicted for a series of armed robberies, and various fees, fines and assessments were imposed against them. (Lowery, supra, 43 Cal.App.5th at pp. 1048-1049.) Based on Dueñas, the defendants in Lowery challenged the imposition of some of those financial obligations. The Lowery court, however, rejected a due process challenge based on Dueñas. The Lowery court noted the "unique concerns addressed in Dueñas" were lacking. (Lowery, supra, at p. 1056.) Nothing established or even reasonably suggested the two defendants in Lowery faced ongoing unintended punitive consequences stemming from the imposition of fees, fines and assessments. The defendants did not establish how they suffered a violation of a fundamental liberty interest. To the contrary, the defendants had been incarcerated not because of their alleged indigency but because they were convicted of intentional criminal acts. Because unintended consequences were not present, the Lowery court held it was not fundamentally unfair for the trial court to impose fees, fines and assessments against the defendants without first determining their ability to pay. (Lowery, supra, at pp. 1056-1057.)

Magco Drilling v Neville

Finally, the SSI parties claim the job cost reports, as a whole, were not sufficiently trustworthy because there was evidence that one job cost report was created in 2015 and edited to increase costs for renting out the Delmag. Their record citations point us to a job cost report for a project designated "11-T100," and what appears to be two screenshots of spreadsheets showing costs for that project, marked with the same 2015 date but different "content created" times listed in their respective document property boxes. But the SSI parties fail to point us to evidence (and we could find none) that the 2015 date reflected in these screenshots actually represented the date the Magco parties created this particular job cost report, as opposed to something else, such as the "print date" which is what the Magco parties suggested and what Holly agreed this date was in later testimony. When asked about this particular job cost report, Holly testified she prepared it in 2013. Moreover, Holly was cross-examined as to whether the screenshots showed the job cost report was edited in 2015 to raise the rental rate of the Delmag, and her credibility and the weight of the evidence was a matter for the jury to assess. In any event, it is unclear why this detail about a single job cost report should be dispositive as to the trustworthiness of all the job cost reports such that the business records exception could not possibly apply to any of them.

Ventura Coastal v Occupational Safety and Health Appeals Board

The general procedures for filing a writ petition to review an administrative decision are "subject ... to the statutes relating to the particular agency." ( Gov. Code, § 11523.) Various administrative agencies are governed by their own procedures and their own statutory time limits. Appeals from decisions of the WCAB are governed by the time limits in section 5950. In Camper v. Workers' Comp. Appeals Bd. (1992) 3 Cal.4th 679, 12 Cal.Rptr.2d 101, 836 P.2d 888 ( Camper ), the Supreme Court observed: "[I]t is now too well established to question that the time limitation set forth in Labor Code section 5950 is jurisdictional." ( Id. at p. 686, 12 Cal.Rptr.2d 101, 836 P.2d 888 ; accord, Malloy v. Workers' Comp. Appeals Bd. (1991) 1 Cal.App.4th 1658, 1659–1660, 2 Cal.Rptr.2d 820 ; Southwest Airlines v. Workers' Comp. Appeals Bd. (1991) 234 Cal.App.3d 1421, 1424, 286 Cal.Rptr. 347.) With little or no analysis, other courts have concluded the time for filing petitions for review of other administrative decisions is also jurisdictional. This includes the time for seeking judicial review of decisions of the Agricultural Labor Relations Board under section 1160.8 ( Mario Saikhon, Inc. v. Agricultural Labor Relations Bd. (1983) 140 Cal.App.3d 581, 582, 189 Cal.Rptr. 632 ; United Farm Workers v. Agricultural Labor Relations Board (1977) 74 Cal.App.3d 347, 350, 141 Cal.Rptr. 437 ) and decisions of the Public Employment Relations Board pursuant to Government Code section 3542 ( San Mateo Federation of Teachers v. Public Employment Relations Bd. (1994) 28 Cal.App.4th 150, 155, 33 Cal.Rptr.2d 387 ). It also includes the time for seeking review of a penalty imposed for failure to maintain workers' compensation insurance under section 3725 ( Department of Industrial Relations v. Atlantic Baking Co. (2001) 89 Cal.App.4th 891, 895, 108 Cal.Rptr.2d 44 ). The time for filing a petition for writ of mandate to review decisions of the Board is set out in section 6627. In Raam Construction,...

People v Cauble

Whether a decision to forego promised testimony is constitutionally deficient representation is a fact-based determination that we assess on a case-by-case basis. (People v. Stanley, supra, 39 Cal.4th at p. 955.) We also acknowledge that while counsel is responsible for trial tactics, the decision whether to remain silent or testify is for the defendant after consultation with counsel. (People v. Carter (2005) 36 Cal.4th 1114, 1198.) Though when questioned Cauble told the court it was his decision to not testify, the record affirmatively shows it was counsel who decided at the close of the People's case that circumstances had changed such that he advised against putting Cauble on the stand. Cauble's jail call with his wife triggered counsel's reaction. But the People played the jail call during the preliminary hearing and it should not have been a surprise to counsel. That counsel neglected to view the video recordings on the drive provided by the prosecutor was not excusable. "Making [promises that Cauble would testify about his actions in self-defense and differing statements to investigators] and then abandoning them for reasons that were apparent at the time the promises were made[] cannot be described as legitimate trial strategy." (U.S. ex rel. Hampton v. Leibach, supra, 347 F.3d at p. 259.) Like in the above cases, we cannot say counsel's last minute decision to advise Cauble to forego testifying in this case was a strategic choice or a plausible option. This was not a situation where counsel had no reason to anticipate Cauble changing his mind about testifying. By the time counsel made his decision, the prosecutor had already presented evidence that Cauble repeatedly and falsely told investigators during his interviews that he did not know C.W. and denied being at C.W.'s apartment, and thus there was no potentially damaging cross-examination or other intervening event that would warrant counsel's decision. (Compare People v. Burnett, supra, 110 Cal.App.4th ...

People v Henderson

To the extent the pinpoint instruction was ambiguous because it did not explicitly state that imperfect self-defense does not involve an act caused by "cognitive defects alone" (Elmore, supra, 59 Cal.4th at p. 136, italics added), we determine there is no " ' "reasonable likelihood the jury misunderstood and misapplied the instruction" ' " (Nelson, supra, 1 Cal.5th at p. 544). As stated, the trial court gave the pinpoint instruction immediately after it instructed the jury with CALCRIM No. 571, the pattern instruction on voluntary manslaughter committed in imperfect self-defense. The pattern instruction told the jury that "[i]n evaluating the defendant's beliefs, [it was to] consider all the circumstances as they were known and appeared to the defendant." (Italics added.) The instruction also stated that "[a] danger is imminent if, when the fatal wound occurred, the danger actually existed or the defendant believed it existed." (Italics added.) Thus, the pattern instruction informed the jury that it was to evaluate whether defendant killed in imperfect self-defense by considering all the circumstances from defendant's perspective. (See People v. Sotelo-Urena (2016) 4 Cal.App.5th 732, 745 [CALCRIM No. 571 instructs a jury "to evaluate [the] defendant's belief in the need to use lethal force from his perspective"].) Given that language in the pattern instruction, we conclude it is not reasonably likely the jury would have disregarded evidence of defendant's "mental disease, mental defect, or mental disorder" in determining whether defendant acted in imperfect self-defense based on his misperception of the objective circumstances. (§ 28, subd. (a); see Elmore, supra, 59 Cal.4th at p. 146 ["the defense [may] present[] evidence of mental disease, defect, or disorder to support a claim of unreasonable self-defense based on a mistake of fact"].)

Adir International v Travelers Indemnity

Travelers relies on Bradley v. Harris Research, Inc. (9th Cir. 2001) 275 F.3d 884 (Bradley) and Ting v. AT&T (9th Cir. 2003) 319 F.3d 1126 (Ting) to argue that, for a state law to be "saved" under section 2 of the FAA, the law must apply to "any contract." In Bradley, the Ninth Circuit held that a California franchise statute, which specified where disputes could be resolved, was "not a generally applicable contract defense that applies to any contract, but only to forum selection clauses in franchise agreements." (Id. at pp. 890, 892.) Relying on Bradley, because the Consumer Legal Remedies Act (CLRA) (Civ. Code, § 1750 et seq.) only applied to consumer and noncommercial contracts, the Ninth Circuit in Ting held that the FAA preempted the CLRA's anti-class action waiver provisions. (Ting, at p. 1148.) Bradley and Ting are distinguishable because they did not involve neutral contract formation requirements. (See Mitchell, supra, 99 Cal.App.4th at p. 1359.) Rather, the forum selection clause in Bradley and the anti-class action waiver in Ting interfered with arbitration. Further, in declining to follow Bradley and Ting, the Ninth Circuit in Sakkab v. Luxottica Retail North America, Inc. (9th Cir. 2015) 803 F.3d 425 held that Concepcion "cuts against" Ting and Bradley's "construction of the saving clause." (Sakkab, at p. 433.) The Ninth Circuit added that the Supreme Court "appear[ed] to clarify" that the saving clause's "'any contract' language refers to whether a state law places arbitration agreements on equal footing with non-arbitration agreements, not whether it applies to all types of contracts." (Id. at p. 434, fn. 8; see Epic Systems Corp. v. Lewis, supra, ___ U.S. ___, ___, 138 S.Ct. 1622, ["[u]nder our precedent, this means the saving clause does not save defenses that target arbitration either by name or by more subtle methods, such as by 'interfer[ing] with fundamental attributes of arbitration'"]; Kindred Nursing Centers Ltd. Partnership v. Clark (2017...

People v Quiles

Section 190.2, further provides: "(b) Unless an intent to kill is specifically required under subdivision (a) for a special circumstance enumerated therein, an actual killer, as to whom the special circumstance has been found to be true under Section 190.4, need not have had any intent to kill at the time of the commission of the offense which is the basis of the special circumstance in order to suffer death or confinement in the state prison for life without the possibility of parole. [¶] (c) Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4. [¶] (d) Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4." (Italics added.)

Banda v Washington

Having determined there is an impact on constitutionally protected interests, we next consider whether the order requiring John to stay more than 200 yards from Maria is "broader than necessary to achieve its desired goal[]" of protecting Maria from harassment. (Madsen v. Women's Health Center, Inc., supra, 512 U.S. at p. 765; see People ex rel. Reisig v. Acuna, supra, 9 Cal.App.5th at p. 22 [injunction may not burden constitutional right more than necessary to serve the significant governmental interest at stake].) This question can be rephrased as follows: To protect Maria from harassment by John, it is reasonably necessary to require John to stay 200 yards away from Maria when they are both in the orchards on the 100 acres? The answer to this question about reasonable necessity involves balancing Maria's right under the California Constitution to pursue safety, happiness and privacy (Brekke v. Wills, supra, 125 Cal.App.4th at p. 1412) against John's constitutionally protected interests. In the course of handling the many matters the parties have presented to this court, it has been this court's understanding that John is managing the citrus operations on the 100-acres and Maria is managing the nursery business located near her residence. Based on this understanding, John's work in the orchards would take precedent over Maria's driving on the roads through the orchards, just as Maria's interest in the nursery has been given precedence by the distance John is required to maintain from Maria's home. Furthermore, Maria is in control of the situations where she approaches John in the orchards—that is, in the context of the orchards, she chooses when she is within 200 yards of John. In light of this choice, one cannot conclude her right of privacy is affected. Instead, the main impediment from John being in the orchard is his impact on her freedom of movement. There has been no showing that Maria's business requires her presence in the orchards. Balancing the constit...

People v Hines

The Fourth Circuit has explicitly relied on evidence that the defendant " ‘acted in a manner exhibiting competence’ " during trial court proceedings in upholding a district court's refusal or failure to hold a competency hearing because "[t]he record reflect[ed] that [the defendant] was competent." ( Beck v. Angelone (4th Cir. 2001) 261 F.3d 377, 388, 391 ; see id. at p. 391, fn. 13 [finding there was "overwhelming evidence that [the defendant] was competent"].) The First, Third, Fifth, Tenth, and D.C. Circuits have done the same. (See also United States v. Brown (1st Cir. 2012) 669 F.3d 10, 18 ["To be sure, Edward made comments that on their face could lead one to question whether he even understood what was happening. Yet, he also made statements that evidenced a rational and factual understanding of the legal system," footnotes omitted]; Jermyn v. Horn (3d Cir. 2001) 266 F.3d 257, 294-295 [noting the defendant "appeared before the trial court several times prior to the trial and seemed fully capable of understanding the proceedings, communicating with counsel and assisting in his defense" and his testimony "supports the conclusion that he appeared capable of understanding the proceedings and assisting counsel with his defense"]; United States v. Flores-Martinez (5th Cir. 2012) 677 F.3d 699, 708 [district court did not err in failing to sua sponte holding competency hearing because the defendant's "conduct ... was not divorced from reality" given that "[e]ach time he was questioned by the district court, his responses demonstrated that he fully understood the nature of the proceeding"]; McGregor v. Gibson (10th Cir. 2000) 219 F.3d 1245, 1252 [noting the defendant "testif[ied] during an in camera suppression hearing, during which [he] was able to understand the questions posed and respond accordingly"]; United States v. Perez (D.C. Cir. 2010) 603 F.3d 44, 48 [the defendant's "understanding of the proceedings against him and his ability to assist counsel before and ...

Storix v Johnson

Johnson alternatively claims the trial court erred in awarding the attorney fees and costs because these defendants incurred no expenses, citing evidence that Storix indemnified them and advanced their legal expenses. Johnson cites no authority to support this contention, and numerous courts have rejected the argument that a prevailing party is entitled to an attorney fees award only if the party actually paid or became liable to pay the fees. (See International Billing Services, Inc. v. Emigh (2000) 84 Cal.App.4th 1175, 1192-1193; see also Lolley v. Campbell (2002) 28 Cal.4th 367, 373 [employee represented without charge by Labor Commissioner entitled to award of attorney fees as prevailing party]; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141-1142 [party represented on a contingency basis recovered fees under Code Civ. Proc., § 425.16, subd. (c)]; In re Marriage of Ward (1992) 3 Cal.App.4th 618, 623-626 [attorney fees may be awarded to legal services organizations who represent clients pro bono]; Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1410 ["Plaintiffs were not entitled to avoid their contractual obligation to pay reasonable attorney fees based on the fortuitous circumstance that they sued a defendant who obtained insurance coverage providing a defense."].)

People v Curlee

The parties do not cite additional published authority as of the time of defendant's trial addressing the use of case-specific hearsay for impeachment on cross-examination and none addressing the issue in a civil proceeding. Nonetheless, in his leading evidence treatise, our esteemed colleague Justice Simons questions the validity of a blanket rule disallowing the use of case-specific hearsay to impeach an expert. "The Sanchez rule barring an expert from relating case-specific hearsay should not be understood to bar cross-examination which seeks to undermine an expert's opinion by showing that facts relied upon are suspect or that facts inconsistent with the opinion were ignored. Such cross-examination is permissible, subject to section 352, because the underlying details are introduced to impeach the expert's opinion and not for their truth." (Simons on California Evidence, § 4.31, citing People v. Townsel, supra, 63 Cal.4th at pp. 55-56.) Justice Simons notes that Malik may have ignored the distinction between admitting out-of-court statements introduced by the cross-examiner for their truth and using them to impeach the expert, questioning the decision's conclusion that " 'if [the challenged statements in the reports] were not true, the statements would have no impeaching value. [Citation.] This seems incorrect: whether true or not the statements undermine the opinion unless the expert can explain why she ignored them.' " (Simons on California Evidence, § 4.31.) Given the uncertain state of the law in this context at the time of the trial, defendant fails to establish that his counsel provided ineffective assistance. (See People v. Foster (2003) 111 Cal.App.4th 379, 385 ["Given that there is no California authority establishing whether or not the questions were proper, defendant cannot establish that counsel's failure to object to the prosecutor's questions in this case 'fell below an objective standard of reasonableness.' "].)

Murr v Ingels In re Marriage of Murr

On April 12, 2018, mother's counsel filed a declaration in the superior court, attaching various documents filed by mother in the Spokane court, which purportedly contained "a detailed parenting plan." On April 24, 2018, mother's counsel filed another declaration in the superior court, attaching mother's declaration filed in the Spokane court regarding her request for change of venue filed in that court. In that declaration, mother declared California to be an inconvenient forum because: (1) daughter had lived in Washington for over two years, attended school there, received mental and physical health services and dental care there, and had a strong attachment to the community; (2) all recent activity relevant to the proceedings had occurred in Washington, including the issuance of the order for protection and the criminal charges filed against father; (3) mother was financially unable to travel to California for the proceedings due to unemployment and taking care of two young children; (4) father had the flexibility to travel to Washington; (5) father had the financial means to pay for representation and retained an attorney in Washington, whereas mother relied on assistance from the World Young Women's Christian Association and other domestic violence programs to help her participate in court proceedings; (6) the nature and location of all pertinent evidence was in Washington, such as daughter's counselor, school and medical records, and individuals who could provide relevant testimony regarding her best interests; (7) mother's and daughter's safety would be in jeopardy if the case proceeded in California because father had threatened to kill mother in the past and, "[d]espite multiple reports to police about these instances, no action was taken until [mother and daughter] were relocated to Spokane and [mother] made reports to law enforcement in Washington"; and (8) mother utilized various domestic violence survivor resources in Washington that were unavailable i...

People v Martinez

Neither has the dissent made a concrete showing that section 2076 "advances [the government's] asserted interests in any direct and material way. " (Edenfield, supra , 507 U.S. at p. 771, 113 S.Ct. 1792, italics added.) In other words, the dissent has not demonstrated that "the restriction will in fact alleviate [real harms] to a material degree." (Ibid. , italics added.) The dissent does not point to any empirical data, history, or evidence, even anecdotal, to establish the efficacy of the regulation. Its unsupported reasoning sounds more like less-demanding "rational basis" review than the heightened scrutiny applicable to commercial speech. (Cf. F.C.C. v. Beach Communications, Inc. (1993) 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 [on "rational basis" review, "a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data. [Citations.]"].) The evidentiary burden is on the government to justify a regulatory restriction on commercial speech. (See Edenfield, supra , 507 U.S. at pp. 770-771, 113 S.Ct. 1792 ; see also Liquormart, supra , 517 U.S. at p. 505, 116 S.Ct. 1495 (plur. opn. of Stevens, J.) [state required to show that "the price advertising ban [on liquor] will significantly reduce alcohol consumption"; "without any findings of fact, or indeed any evidentiary support whatsoever, we cannot agree with the assertion that the price advertising ban will significantly advance the State's interest in promoting temperance"].)The dissent's reliance on two United States Supreme Court decisions is misplaced. In Went For It, supra , 515 U.S. 618, 115 S.Ct. 2371, one of the cases cited, the United States Supreme Court scrutinized Florida Bar rules that "prohibit[ed] personal injury lawyers from sending targeted direct-mail solicitations to victims and their relatives for 30 days following an accident or disaster." (Id. at p. 620, 115 S.Ct. 2371.) The court concluded that the state ...

People v Gomez

The same is true regarding an objection under Evidence Code section 352. Because the evidence supported the prosecution theory of motive, it had substantial probative value regarding, inter alia, the allegations of premeditation and deliberation. (See People v. McKinnon, supra, 52 Cal.4th at 655; People v. Shamblin, supra, 236 Cal.App.4th at 10 & fn. 16.) Considered in a vacuum, the evidence might have tended to evoke "an emotion-based bias" against appellant (see People v. Thornton, supra, 41 Cal.4th at 427), but this tendency was insubstantial in the context of the unchallenged evidence at appellant's trial. The unchallenged evidence includes appellant's admissions to: (1) being convicted of hitting Catherine while she was holding a baby; (2) violating his resulting restraining order by defying her and her relatives' requests to leave her alone at Rosa's house; (3) attempting to violate the restraining order again by forcing his way into Gisela's apartment in search of Catherine; (4) viciously stabbing Rosa in reaction to her reasonable demands that he leave and her reasonable attempt to call the police; (5) chasing after a fleeing Gisela; (6) viciously stabbing Gisela while she was holding her baby; and (7) sending Catherine a message that he had done something she would remember him by, with a picture of his bloody hands. In addition to appellant's admissions, the unchallenged evidence included Rosa's and Gisela's testimony that appellant attempted to stab three-year-old Leah, Sanchez's testimony that appellant appeared to be trying to hurt 11-month-old Aurora, and evidence that the baby was indeed injured. In this context, the jury's emotions were unlikely to be inflamed by the evidence that he had hit Catherine on two additional occasions (without a weapon, and without inflicting injury), bullied her into leaving her job at a grocery store, and made unfulfilled plans to fight a perceived rival. Thus, the risk of unfair prejudice did not substantially outweig...

Legal Aid Society of San Mateo County v Department of Financial

In addressing the issue of whether the subject funds were contractually restricted for the funding of an enforceable obligation under section 34179.5, subdivision (c)(5)(D), the court expressly acknowledged that the Agreement was a legally binding and enforceable contract. But the court then emphasized the language of the Agreement in which the parties agreed that the subject funds were to be "maintained and disbursed in accordance with the terms that apply to the housing funds of [RDAs] in California as set forth in the [CRL], as the same may from time to time be amended." The court stated that the subject funds "would become part of the [LMI] Housing Fund, to be maintained and disbursed as required by the [CRL] or any amendments thereto " and noted that the CRL was amended by the Dissolution Law. (Bold omitted.) In a footnote, the trial court stated that, contrary to plaintiffs' contention that the Dissolution Law did not actually amend the CRL provisions related to affordable housing, the Dissolution Law "obviously amended the [CRL] by, among other things, dissolving redevelopment agencies and reallocating the monies in their Housing Funds." The court then ruled that the subject funds were not legally or "contractually dedicated or restricted for the funding of an enforceable obligation that identifies the nature of the dedication or restriction and the specific enforceable obligation " under section 34179.5, subdivision (c)(5)(D). (Bold omitted.) The court noted that the funds were never spent and the RDA "never contractually obligated or pledged the LAS funds to pay for specific housing projects, or any other enforceable obligation, prior to its dissolution." The court reasoned that "[t]o be exempt from transfer to other local entities by [section 34179.5] subdivision (c)(5)(D), the RDA must have pledged the LAS funds to fund a specific enforceable obligation. Because the RDA did not, the Dissolution Law directs those funds now be transferred to other local en...

Letterman Digital Arts v City of San Francisco

The cases cited by Letterman in support of its interpretation of the word "interest" as it is used in section 103(c)(9) are singularly inapposite. Russello v. United States (1983) 464 U.S. 16, 17, 104 S.Ct. 296, 78 L.Ed.2d 17, interpreted the phrase "any interest [the defendant] has acquired ... in violation of [ 18 U.S.C.] section 1962" for the purpose of applying the forfeiture provision of the Racketeer Influenced and Corrupt Organizations (RICO) chapter of the Organized Crime Control Act of 1970 ( 18 U.S.C. § 1961 et seq. ). The issue in the case was "whether profits and proceeds derived from racketeering constitute an ‘interest’ within the meaning of this statute and are therefore subject to forfeiture." ( 464 U.S. at p. 20, 104 S.Ct. 296.) Cook v. City of Buena Park (2005) 126 Cal.App.4th 1, 6, 23 Cal.Rptr.3d 700, questioned whether a landlord had a "protected life, liberty, or property interest" for the purpose of asserting a due process claim against application of a statute requiting him to undertake eviction proceedings against a tenant. DFS Group L.P. v. County of San Mateo (2019) 31 Cal.App.5th 1059, 1088, 243 Cal.Rptr.3d 404, questioned whether the exclusive right to sell merchandise at duty-free shops in San Francisco Airport may be considered in determining the value of its possessory interest in its airport locations for property tax purposes (and held that it may not). County of Los Angeles v. County of Los Angeles Assessment Appeals Bd. (1993) 13 Cal.App.4th 102, 112, 16 Cal.Rptr.2d 479, considered a similar question (and reached a similar conclusion) with respect to car-rental companies at several Los Angeles area airports. Watson Cogeneration Co. v. County of Los Angeles (2002) 98 Cal.App.4th 1066, 1070, 120 Cal.Rptr.2d 421, considered whether it was proper to consider the actual income stream resulting from an above-market price government-facilitated power purchase agreement in the property tax valuation of an independent power plant developed ...

Vang v Board of Trustees of California State University

First, the scope of the statute is not defined exclusively by the Legislature's statement of purpose and its findings and declaration of intent in Education Code sections 66251 and 66252. Instead, the Legislature's statements of purpose and intent are useful in interpreting the substantive provisions of the act, but are not substantive provisions themselves. For instance, Education Code section 66251 states the Equity in Higher Education Act's purpose "is to prohibit acts that are contrary to that policy and to provide remedies for the commission of those prohibited acts." (Italics added.) This language demonstrates the act is designed to perform two functions—first it prohibits acts and, second, it provides remedies when a prohibited act is committed. Consequently, a determination of the scope of the Equity in Higher Education Act requires an examination of the acts that are prohibited by the substantive provisions of the statute. Those prohibitions are contained in Education Code section 66270, which makes unlawful "discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any characteristic listed or defined in Section 11135 of the Government Code or any other characteristic that is contained in the prohibition of hate crimes set forth in subdivision (a) of Section 422.6 of the Penal Code." Adopting the plain meaning of the words used, we interpret the statute to prohibit discrimination based on the factors listed. If the Legislature had intended the act to have a broader application, it would not have gone to the trouble of providing a specific list of prohibited types of discrimination or it would have used language demonstrating the list was not exclusive.

Hipsher v LA County Employees Retirement Association

Hipsher filed the instant petition for writ of mandate challenging LACERA's forfeiture determination and a complaint seeking declaratory relief. He challenged the constitutionality of section 7522.72 under the contract clause of the California Constitution, alleged that reduction of his vested retirement benefits constituted an unconstitutional ex post facto application of section 7522.72, and claimed the reduction was invalid because there was no nexus between his crime and the performance of his official duties. ( Hipsher I, supra , 24 Cal.App.5th at p. 750, 234 Cal.Rptr.3d 564.) The trial court issued judgment in favor of LACERA and the State as to Hipsher's contract and ex post facto claims. ( Ibid. ) In addition, after requesting and reviewing supplemental briefing as "to whether Hipsher had a due process right to his original retirement benefits and, if so, whether he [had been] afforded sufficient due process protections," the court issued a peremptory writ of mandate directing LACERA to set aside the reduction in Hipsher's pension benefits and return the difference between his full pension and his allowance after the reduction. The trial court also ordered the County to reinitiate administrative proceedings under section 7522.72 in a manner that would afford Hipsher sufficient due process protections. ( Ibid . ) Hipsher and the County each filed an appeal. We concluded that section 7522.72 did not unconstitutionally impair Hipsher's pension rights, on the ground that a legacy employee's criminal abuse of his position as a public employee constitutes a valid "condition subsequent" to modify his pension rights, and the felony forfeiture provision of section 7522.72 "serves the important public purpose of ensuring the integrity of public pension systems." ( Hipsher I, supra , 24 Cal.App.5th at p. 752, 234 Cal.Rptr.3d 564.) Further, we found that California law does not require that Hipsher receive a corresponding benefit to offset the reduction in his retireme...

Humphrey v Harvest Holdings

Had the arbitrator failed to make a required disclosure in her May 12, 2017, notice, section 1281.91, subdivision (a), suggests the Humphreys would have had 15 days within which to serve notice of her disqualification based on the omission. The Humphreys do not cite the 15-day window for disqualification anywhere in their briefing, nor did they do so at argument. (See also id., subd. (b).) In any event, we find not only that there was no omission—given that the arbitrator expressly notified the Humphreys she had received an offer to mediate another case—we observe that section 1281.91, subdivisions (c) and (d), place an important restriction on disqualifying an arbitrator, even if timely initiated. "[I]n no event may a notice of disqualification be given . . . after any ruling by the arbitrator regarding any contested matter" (id., subd. (c), italics added), unless "any ground specified in section 170.1 exists." (§ 1281.91, subd. (d).) The grounds for disqualification identified in [s]ection 170.1 include any circumstances in which "[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial." (§ 170.1, subd. (a)(6)(A)(iii).) Here, the arbitrator issued her interim ruling before the Humphreys sought to disqualify her, thereby triggering section 1281.91's limitation on disqualification to reasons identified in section 170.1. None apply. For example, even assuming arguendo that the arbitrator's May 12th notice was somehow deficient in any respect, it would not furnish grounds to disqualify the arbitrator because every person aware of the circumstances would recognize why the Humphreys objected. After earlier consenting to the arbitrator despite notice of the Seyfarth firm's involvement in 23 other matters, they now objected only after an interim adverse ruling. The objection was plainly opportunistic and furnishes no reasonable basis to doubt the arbitrator's impartiality.

Kwan Software Engineering v Hennings

The trial court's July 9, 2015 order, which contains specific findings that VeriPic and Kwan engaged in extensive and deliberate misconduct, implicitly concludes that neither Kwan nor VeriPic was acting with substantial justification in the course of discovery. Substantial evidence supports that determination. "[T]he phrase ‘substantial justification’ has been understood to mean that a justification is clearly reasonable because it is well-grounded in both law and fact." ( Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434, 133 Cal.Rptr.3d 465.) We decide there is no basis in the record to affirm the trial court's order denying monetary sanctions on the grounds that Kwan's or VeriPic's discovery misconduct was substantially justified, and neither Kwan nor VeriPic argue that it was. Therefore, the trial court's refusal to award monetary sanctions turns on the second exception in section 2023.030(a) —namely whether "the imposition of the sanction [would be] unjust." In general, discovery sanctions may not be imposed as a punishment. "Courts have continued to uphold the principle ... that sanctions may not be imposed solely to punish the offending party.... Furthermore, the sanction chosen should not provide a windfall to the other party, by putting the prevailing party in a better position than if he or she had obtained the discovery sought and it had been favorable." ( Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1193, 190 Cal.Rptr.3d 411 ; see also Siry Investment., L.P. v. Farkhondehpour (2020) 45 Cal.App.5th 1098, 1117, 259 Cal.Rptr.3d 466, review granted July 8, 2020, S262081 [explaining that "discovery sanctions ... ‘protect the interests of the party entitled to[,] but denied[,] discovery,’ not to ‘punish[ ]’ the noncompliant party"].) We recognize that our review of the trial court's sanctions award is deferential, but we must ensure the trial court has followed the applicable statute. (See Diepenbrock v. Brown (2012) 208 Cal...

Pickard and Butters Construction v Buttonwillow Recreation and Park District

For this reason, although P&D Consultants's broad holding that public contracts requiring written change orders cannot ever be modified orally or through the parties' conduct is not persuasive, there is little reason to doubt the ultimate outcome there was correct. In that case, the city's project manager had purportedly told P&D to proceed with extra work before the execution of written amendments later signed by the city. Yet, there is nothing in the facts suggesting the project manager had the authority, through the contract or otherwise, to approve an amendment on behalf of the city; the contract required the written approval of the city. (See J. M. Griffith Co. v. City of Los Angeles (1898) 6 Cal.Unrep. 119, 123 (per curiam) [engineer's oral direction to contractor to perform extra work could not bind the city under the contract terms (which required approval by the city for changes), or the city's charter]; Bares v. City of Portola (1954) 124 Cal.App.2d 813, 820 [engineer's oral direction to contractor to perform extra work not binding on the city because the contract required a written order by the engineer pursuant to the authorization of the city]; Contra Costa Const. Co. v. Daly City (1920) 48 Cal.App. 622, 624-625 [the city engineer's oral directions to contractor to perform extra work not binding on the city because contractually extra work would not be paid for unless authorized by resolution of the city's board of trustees and the city charter did not authorize engineers to contract on behalf of the city].) This distinguishes P&D Consultants from the contracts here and in Weeshoff where contractual authority to issue change/extra work orders was vested with the engineer and not expressly contingent on agreement by the public entity.

11 Lagunita v California Coastal Commission

On August 9, 2018, the Coastal Commission held a public hearing. Pat Veesart, a Commission enforcement supervisor and an experienced contractor, testified: "My observation generally is that this is a major project that involves the re-engineering and rebuilding of an existing older home. In my opinion the project undertaken at 11 Lagunita Drive far exceeds any common sense understanding of ordinary repair and maintenance, and I don't know anybody in the construction industry who would characterize it as such." Veesart narrated a number of slides and photographs during an extensive presentation showing the scope of the remodel (examples below). Veesart noted: "Interior walls are removed, plumbing, wiring, railings, stairs, et cetera, were also all removed." Veesart said that in one photograph "you can see a carpenter in the process of adding or sistering new joists to old joists. It appears that these new joists are taller and stiffer, thereby significantly increasing the load-bearing strength of the deck roof." Veesart observed "they have started sheeting the deck roofs with new plywood. Plywood sheeting forms a diaphragm that spreads the load and gives greater strength and resistance to lateral movement. Also note that more interior framing and some framing has been added to exterior walls as well." Veesart noted: "This present-day framing system results in a house that is much stronger than a typical house that was built in the 1950s."

Block v Raines Feldman

On May 23, 2016 Block filed this action against Raines Feldman, Lohr, and LHR Enterprises. Block alleged causes of action against all defendants for breach of fiduciary duty, negligence, breach of oral contract, and against LHR Enterprises for breach of a written contract. In his causes of action for breach of fiduciary duty and negligence, Block alleged the defendants "(a) represent[ed] Block notwithstanding a clear conflict of interest emanating from their representation of [QED], (b) negotiat[ed] new deals for Block outside [QED] that [QED] contended were in violation of Block's obligations under [a 2012 contribution agreement] and his Employment Agreement, (c) fail[ed] to close the settlement reached between Block and [QED] on December 19-21, 2014, as referenced in emails exchanged between Block and [QED], and instead creat[ed] open issues and uncertainties that led to subsequent, costly litigation between the parties, (d) fail[ed] to discharge their duties and obligations to Block in connection with the negotiation and documentation of his separation and settlement agreement with [QED] because of their conflicts of interest, (e) fail[ed] and refus[ed] to reasonably cooperate with Block in connection with his arbitration hearing in the dispute between Block and [QED], including by failing to meet with Block and his counsel, and refus[ed] to testify at the arbitration hearing despite the fact that Lohr was a key witness and had been subpoenaed for the hearing, and (f) refus[ed] to acknowledge Defendants' previous representation of Block, and [took] the position that Lohr had not represented Block . . . ." Block alleged that, as a result, he incurred "costly litigation," "was forced to settle with QED . . . on a less favorable basis," and suffered monetary damages in excess of $3 million.

Malaga County Water District v State Water Resources Control Board

Finally, Malaga argues there was insufficient evidence to support the penalties issued. Central to this contention is the assertion that the Water Quality Board relied exclusively on hearsay evidence to reach its conclusion. "In determining whether administrative findings are supported by the evidence, the superior court applies one of two tests: (1) independent judgment or (2) substantial evidence. ( § 1094.5, subd. (c).) The appropriate test depends on the nature of the right affected by the agency's action or decision ...." ( Nathan G. v. Clovis Unified School Dist. (2014) 224 Cal.App.4th 1393, 1403, 169 Cal.Rptr.3d 588.) "Courts decide whether an administrative decision substantially affects a fundamental vested right on a case-by-case basis.... ‘ "The ultimate question ... is whether the affected right is deemed to be of sufficient significance to preclude its extinction or abridgement by a body lacking judicial power." ’ " ( Nathan G. , at p. 1404, 169 Cal.Rptr.3d 588, italics omitted.) Malaga argues for an independent judgment review, contending a "permit gives rise to a fundamental vested right to operate under the permit," and that any administrative decision affecting the permit thus requires an independent review. We do not agree. As the State Water Board points out, there can be no vested right to pollute the waterways, and the statutory scheme appears to specifically preclude an independent review for writ proceedings following a decision or order issued under section 13323. (§§ 13263, subd. (g) ["No discharge of waste into the waters of the state, whether or not the discharge is made pursuant to waste discharge requirements, shall create a vested right to continue the discharge. All discharges of waste into waters of the state are privileges, not rights"], 13330, subd. (e) ["Except as provided in this section, Section 1094.5 of the Code of Civil Procedure shall govern proceedings for which petitions are filed pursuant to this section. For the purpose...

LA County Department of Children and Family Services v JS In re MS

California Rules of Court, rule 5.660(c) sets forth "[c]onflict of interest guidelines for attorneys representing siblings." As set forth in the rule, a juvenile court "may appoint a single attorney to represent a group of siblings involved in the same dependency proceeding." (Rule 5.660(c)(1)(A).) "An attorney representing a group of siblings has an ongoing duty to evaluate the interests of each sibling and assess whether there is an actual conflict of interest." (Rule 5.660(c)(2)(A).) "If an attorney believes that an actual conflict of interest existed at appointment or developed during representation, the attorney must take any action necessary to ensure that the siblings' interests are not prejudiced," such as notifying the juvenile court of the conflict or requesting to withdraw from representing some or all the siblings. (Rule 5.660(c)(2)(D).) "If the court determines that an actual conflict of interest exists, the court must relieve an attorney from representation of some or all of the siblings." (Rule 5.660(c)(2)(E).) The fact that "siblings have different parents," by itself, does "not necessarily demonstrate an actual conflict of interest"; nor does the fact that "[t]here is a purely theoretical or abstract conflict of interest among the siblings." (Rule 5.660(c)(2)(B)(ii) & (iii).) "[U]nder rule 5.660(c), a conflict becomes 'actual' when an attorney's duties of loyalty, confidentiality, and zealous advocacy require the attorney to take or to refrain from taking some action to serve the 'best interests' of one minor client, but the attorney is unable to do so without violating a duty owed by the attorney to another client; or when the attorney is unable independently to evaluate the best interests of each minor client because of the minors' conflicting interests." (In re Zamer G. (2007) 153 Cal.App.4th 1253, 1267, 1272 (Zamer G.).)

People v Landino

The two cases on which Landino relies, Bendit and Cole, are easily distinguishable and do not control. In Bendit, the defendant sent a document purporting to show a balance due on a business account so that the debtor would be prepared to make payment when the defendant, who had no authority to act for the creditor company, came to collect. (Bendit, supra, 111 Cal. at p. 276.) The defendant collected the money owed and, in the presence of the debtor's cashier, signed the creditor's name, "Wm. Cluff & Co.," to a receipt followed by his own initials, "A.B." (Ibid.) The California Supreme Court concluded that the defendant's conduct did not constitute forgery within the meaning of section 470, explaining: "When the crime is charged to be the false making of a writing, there must be the making of a writing which falsely purports to be the writing of another. The falsity must be in the writing itself—in the manuscript. A false statement of fact in the body of the instrument, or a false assertion of authority to write another's name, or to sign his name as agent, by which a person is deceived and defrauded, is not forgery. There must be a design to pass as the genuine writing of another person that which is not the writing of such person. The instrument must fraudulently purport to be what it is not." (Bendit, supra, at pp. 276-277.) The Supreme Court noted that because "there was no pretense that 'Wm. Cluff & Co.' was the genuine signature of that firm," the defendant could not have committed forgery. (Id. at p. 277.) The defendant signed his own initials to the receipt, not someone else's, and signing another's name as his agent is not forgery. (Ibid.)

People v Bravo

Fourth, even before a written copy of his plea agreement was located, defendant in fact acknowledged that he was given a written advisement of immigration consequences, rather than denying it as the majority intimates. Defendant in his declaration stated that nobody at the hearing "issued or explained the PC § 1016.5 admonition. None of the attorneys instructed the interpreter to explain any of these consequences to me in Spanish. He did not explain the clause in the written plea, presented in English and in legal terminology, that was meant to inform me of these consequences. " (Italics added.) Thus, even before the plea agreement was located—and apparently relying on his memory of proceedings two decades earlier—defendant declared that he had been given a written advisement of immigration consequences, simply asserting that the English was not explained to him at the hearing or otherwise. In my view, this acknowledgment that there was a written immigration advisement, even absent proof of it, is at least somewhat to defendant's credit. Once the plea form was found, counsel represented that defendant did not remember the form, but acknowledged that his initials were on it. (Maj. opn., ante , at p. 214.) These events do not warrant the characterization that the majority gives them. (See, e.g., maj. opn., ante , at pp. 216–17 ["defendant reversed his declaration attestation and admitted he had been admonished"].) In my view, defendant's declaration not only supports but, in the absence of any contrary evidence, compels the conclusion that he was not advised that his section 273.5 guilty plea required mandatory deportation as a consequence. The People have not contested the matter, the trial court made no finding on the matter, and the majority offers only misplaced deference to the trial court. A defendant establishes error under the terms of section 1473.7 if he shows that he did not meaningfully understand, defend against, or knowingly accept the "mandatory immigr...

Riverside County Department of Public Social Services v KA In re AA

The court pointed out that the parents' initial failure to cooperate, and the amount of time it took to assess the children made "a huge difference with regard to the totality of anything going on with this case." The court acknowledged that the parents had more recently cooperated in allowing the children to be assessed but that those assessments were made "on the parents' terms." Given the parents' initial failure to cooperate with the investigations, the court questioned whether the parents "fully" understood the seriousness of the case. The court said, "I don't feel that there is no risk of harm potentially to these children, or that they're safe at this juncture. I think we're certainly getting to that point. I think it was a huge step since the last hearing [on January 22, 2020] when everyone was here, and there was a lot of concerns provided to the Court and discussed with everyone." The court commended Mother for completing the 52-week parenting class, which the court described as "a great task," but noted that, "in the midst of this, the [April 17, 2019] incident occurred that brought the family to court. Although I know the therapist indicated [M]other benefited, there is still concern whether there was actually benefit if there was a situation where five small kids are left in an unattended vehicle."

People v Shumate

Shumate raises several issues regarding his right to counsel. The first issue is whether before trial the court properly relieved the third private attorney Shumate hired to represent him after counsel advised the court that an irreparable conflict had arisen with Shumate. The second issue is whether, more than two years after his conviction, the trial court properly denied Shumate's request to substitute another newly hired attorney for his appointed counsel. The third issue is whether, in conducting a progress hearing two weeks before the scheduled sentencing hearing, at which the prosecutor waived her appearance, the trial court violated Shumate's right to be present. Related to this issue is whether his appointed attorney rendered ineffective assistance of counsel by proceeding with the progress hearing in his absence. Before turning to these issues, and to put them into their proper context, we briefly set out Shumate's history of being represented by retained counsel, self-representation, and appointed counsel over the nearly six years that elapsed between the filing of the complaint in July 2012 and his sentencing in April 2018.



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