Week in Review (June 11, 2018)

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Week of:                      June 04, 2018
Publication Date:       June 11, 2018

Appellate Decisions – Summaries

From the First Appellate District –

  • Mateel Environmental Justice Foundation v. Office of Environmental Health Hazard Assessment et alterius [With Interveners] California Chamber of Commerce et alterius; in a case involving whether the Office of Environmental Health Hazard Assessment was using the wrong calculation for the levels of lead in drinking water – adopting a standard based on the “maximum allowable dose level” as a reproductive toxicant rather than a standard based on “no observable effect level” – the court of appeals affirmed the trial court’s denial of Mateel’s motion for judgment on the pleadings and a writ of mandate against the Office.  The court held that the Office did not abuse its discretion in setting the lead levels and that the Office’s adoption was based on the best scientific evidence available and authoritative opinions of national scientific bodies.
  • In re D.B., a Person Coming Under the Juvenile Court Law [OR] The People v. D.B.; the court of appeals struck a probation condition requiring D.B. to submit to any searches of his electronic devices as unconstitutionally overbroad due to the complete lack of any evidence that electronic devices were related to D.B.’s crime of bringing a folding knife to school and subsequent probation violation of smoking marijuana. The court additionally clarified that the trial court’s order related to legal fees did not require D.B.’s parents to reimburse the County.
  • Ryan Smythe v. Uber Technologies, Inc.; the court of appeals affirmed the trial court’s denial of Uber’s motion to compel arbitration of Mr. Smythe’s unfair competition claims against Uber. In making his argument, Mr. Smythe alleged that, while he worked for both Uber and a competing company Lyft, Uber would encourage its drivers to send Lyft drivers on ‘wild goose chases’ to pick up passengers that did not exist.  Uber moved to compel arbitration under Mr. Smythe’s contract with Uber, but both the trial court and the court of appeals held that because Mr. Smythe was filing in his capacity as a Lyft driver, the claims did not arise from his contract with Uber, and therefore he could not be compelled to arbitrate his claims.

From the Second Appellate District –

  • In re Ronald E. Jenson [on Habeus Corpus]; Mr. Jenson was 19 years old when he was convicted on first degree felony murder in 1979, he subsequently committed three in-prison offenses – two in 1980 for prison escape and possession of a weapon, and one in 1989 for assault with a deadly weapon on a peace officer – but has not committed any further crimes since 1989. Now 58 years old, Mr. Jenson was recommended for parole, but was held over for an additional term of years for the crimes committed in prison.  Upon filing the instant habeus corpus writ seeking release, the court of appeals granted the petition in a 2-1 decision on statutory interpretation grounds, holding that the youthful offender laws superseded consecutive term sentencing laws for in-prison offenses, while Justice Egerton dissented, arguing that the two statutory scheme could be reconciled, and that the majority’s opinion would give young inmates “a free pass” to commit crimes in jail.  Ultimately, the court ordered the release of Mr. Jenson.

From the Third Appellate District –

  • James Gund et alterius v. County of Trinity et alterius; the court of appeals affirmed judgment in favor of the County when Sherriff’s deputy cajoled James and Norma Gund into responding to a 911 call that one of their neighbors had made on the false statements that it was likely problems due to inclement weather when, in fact, they happened upon a double-murder in progress. The Gunds were attacked by the murderer and suffered significant physical injuries.  Upon filing suit against the County and other entities, the trial court granted judgment on the basis of Labor Code §3366, which provides that all persons engaged in assisting any peace officer in their duties is deemed an employee and may only recover for any injuries through worker’s compensation.  The courts reasoned that regardless of whether the deputy misrepresented the situation to the Gunds, upon agreeing to investigate the 911 call, they were engaged in the type of activity contemplated by Section 3366, and could not proceed in tort.
  • In re the Marriage of Phillip and Rachelle Spector [OR] Phillip Spector v. Rachelle Spector; when a court reconsidered an order for spousal support sua sponte, resulting in a downward modification for Rachelle, the court of appeals affirmed the modification and the trial court’s sua sponte motion, finding that courts have inherent authority to reconsider prior orders sua sponte pursuant to Le Francois v. Goel (2005) 35 Cal.4th 1094, which held that “while legislation may limit what matters are brought by parties before the court, it may NOT limit a court’s power to reconsider its rulings on its own.”

From the Fourth Appellate District –

  • Von Becelaere Ventures, LLC v. James Zenovic; where the court of appeals affirmed the trial court’s order denying a motion to compel arbitration on a mechanics lien based on Mr. Zenovic’s prior action in Orange County to foreclose the same lien without complying with the procedural requirements in Code of Civil Procedure Section 1281.5, which requires a mechanics lien foreclosure action to be filed as stayed pending arbitration, which Mr. Zenovic did not do.
  • Adrian Camacho v. Target Corporation; in a matter of the interpretation of a general release agreement in a prior settlement between Target and Mr. Camacho, the court of appeals held that the release, by its express terms, only applied to those claims within the ambit of workers’ compensation laws, and did not include Mr. Camacho’s causes of action for discrimination, harassment, failure to prevent the same, constructive termination, intentional infliction of emotional distress, and negligence.
  • The People v. Jose Epifanio Garcia; after being convicted to a term of nine years on the charge of attempted voluntary manslaughter with a semiautomatic firearm, the court of appeals struck the appellant’s brief with 20 days leave to refile. The court considered the appellant’s apparent attempt to merge the procedures of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 in filing a “laundry list of nine ‘claims’… [where] [c]ounsel gives us scant assistance by her inclusion of unorganized, voluminous string citations” as being a misuse of both procedures.

No Cases from the Fifth and Sixth Appellate Districts

Supreme Court – Roundup

This Week, the Supreme Court published 2 cases, including:

  • The People v. Jorge Gonzalez et alterius; in a 5-2 decision on a robbery and felony-murder case involving whether the trial court erred in not instructing the Jury regarding lesser-included offenses, the Supreme Court held that the failure to instruct was harmless error in this case because the jury ultimately found additional special circumstances involving the robbery true that rendered Mr. Gonzalez’s argument that the result would have been different but for the error not sustainable. In a dissenting opinion authored by Justice Liu and joined by Justice Krueger, the dissenters argued that there were numerous evidentiary issues with the main witnesses for the prosecution that could have justified the jury deciding on a lesser conviction, but that the failure to present such an option may have ultimately resulted in an ‘all or nothing choice’ that is impermissible under the circumstances and should be reversed when the result here is life in prison without the possibility of parole – the most severe sentence short of death.
  • Liberty Surplus Insurance Corporation et alterius v. Ledesma & Meyer Construction Company, Inc., et alterius; In a 6-1 opinion with a concurrence, the Supreme Court considered a question certified from the Ninth Circuit involving the application of California Insurance Law in the case of whether an insurer is required to defend and indemnify its insured on a negligent hiring, retention, and training cause of action when one of the insured’s employees sexually assaulted a 13 year old Doe plaintiff while working on a project for the insured. The Supreme Court answered the question posed by stating that there is a distinction between acts that are not covered – here the acts of sexual assault – and the acts for which coverage may attach – in the negligent supervision of the person engaging in the acts.  Here, the court ultimately decided that Mr. Hecht’s molestation of Doe may be deemed an unexpected consequence of L&M’s independently tortuous acts of negligence, thus making coverage preferred in these situations in order to prevent insurers from disclaiming coverage any time an employee’s conduct is framed as deliberate even though California law recognizes liability is possible in such cases.  In the concurring opinion, Justice Liu made efforts to clarify the jurisprudence of the term ‘accident’ and the caselaw relied upon by the Court, but otherwise joined the opinion of the majority.

In the Supreme Court’s Weekly Summary of Accepted Cases, the court has announced that no cases were accepted this week.

Week in Review (June 04, 2018)

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Week of:                      May 29, 2018
Publication Date:       June 04, 2018

Appellate Decisions – Summaries

From the First Appellate District –

  • In re Daniela G., a Person Coming Under the Juvenile Court Law [OR] San Francisco Human Services Agency v. W.G.; W.G. appealed the determination of the trial court in finding dependency jurisdiction over Daniela G., where the court awarded sole custody to Daniela’s mother. G. sought to reverse this decision the basis of the juvenile court’s refusal to require Daniela and a 13-year old stepdaughter to testify at the combined jurisdictional and dispositional hearing.  The court of appeals, however, affirmed the result, stating that W.G.’s due process rights were not violated because the court correctly determined that the possible benefit of the children’s testimony would not warrant the psychological injury it would cause to the children in being examined and cross examined on the issue of W.G.’s molestation of his 13-year old stepdaughter and ‘grooming’ his 8-year old daughter for future sexual exploitation pursuant to the case In re Jennifer J. (1992) 8 Cal.App.4th 1080.
  • The People v. Shawn Shields; the court of appeals partially affirmed and partially reversed Mr. Shields’ conviction for attempted pimping, pandering, and human trafficking of a minor when Mr. Shields accepted a request to become facebook friends with a fictional 17-year-old prostitute created by a Solano County detective. While the court of appeals upheld the convictions for attempted pimping and pandering charges, it agreed with Mr. Shields that the human trafficking of a minor charge required that the individual actually be a minor, which was not the case here, and that he should have been charged with ‘attempted’ human trafficking.
  • The People v. Franklin Lee; where after pleading no contest to charges related to the sexual exploitation of a boy under 14 years old and accepting a term of 14 years in prison, Mr. Lee challenged the trial court’s award of $750,000 in non-economic damages to his victim.  The court of appeals affirmed the award, holding that it was authorized under the existing statutes.
  • The People v. Joseph Veamatahau; in a partially published case, the court of appeals held that an expert’s testimony that he relied on a database to confirm the contents of pills found on Mr. Veamatahau’s person was not case-specific hearsay under the law, and that the testimony was admissible.
  • Joseph Tierney et alterius v. Nasir Javaid et alterius; in a dispute over the sale of real estate, the court of appeals partially affirmed and partial reversed the trial court’s judgment in favor of the defendants. In the published portion of the case the appeals court affirmed the decision holding that Mr. Tierney failed to perform on his contract obligations for the purchase of the property – as, although he spent eight years pursuing a permit to build a condominium development at the site of the real property, he failed to tender the agreed-upon payment for the property and judgment was affirmed on that basis.
  • Ricardo Ian Summers et alterius v. The Superior Court of San Francisco County [Real Party in Interest] Wan Fen Tan; the court of appeals reversed and remanded an order by the trial court for the sale of a piece of real property. The case originates from a dispute between the parties over what percentage of the property is owned by each person.  When the trial court ordered the property sold, with the interests determined at a later date, the plaintiffs appealed, and the court of appeals agreed that the ownership interests should be determined prior to the sale of the property.

From the Second Appellate District –

  • Harley Shine v. Williams-Sonoma, Inc. et alterius; where the court of appeals affirmed the trial court sustaining Williams-Sonoma’s demurrer to Mr. Shrine’s putative employment class action litigation on the grounds that the litigation was barred by res judicata. Namely, that Mr. Shine had participated in a prior class settlement on the same claims that barred him from bringing the instant litigation, even though the specific claims raised could not have been raised in the class settlement, because he agreed to a general release of claims through the settlement.
  • Placer Foreclosure, Inc. v. Solomon Aflalo; after the foreclosure sale of Mr. Aflalo’s property, Placer Foreclosure and the buyer of the property were sued for wrongful foreclosure. Placer filed an interpleader action and deposited the surplus funds with the Court, and following a demurrer to the interpleader action that the court sustained, the court failed, however, to disburse the funds to Mr. Aflalo.  The court of appeals affirmed the dismissal of the interpleader action without leave to amend, as Placer should have simply distributed the surplus funds to Mr. Aflalo as there is no threat of double vexation, and the court further orders that the surplus funds be distributed to Mr. Aflalo.
  • In re the Marriage of Summer and Robert Turfe [OR] Summer Turfe v. Robert Turfe; the court of appeals affirmed the judgment of the trial court where, after a bifurcated trial, the court held that the marriage between Summer and Robert should not be annulled pursuant to a claim of fraud related to a ‘mahr agreement’ under Islamic law, as the parties had different interpretations of what the agreement was at the time it was entered, with Robert believing that Summer would receive nothing but a Quran, while Summer believing that she would receive substantially more. As Summer did not defraud Robert into entering marriage on that basis, the marriage is not annulled pursuant to such fraud.
  • Fabio Canales et alterius v. Wells Fargo Bank, N.A.; the court of appeals affirmed the trial court’s entry of judgment on a wage and hours case against Well Fargo for their alleged failure to include required information on their wage statements, and failure to provide a concurrent wage statement together with the terminated employees final wages paid in-store. The trial court found that there was no basis for the causes of action, as the purportedly missing information was, in fact, not earned by the employees, and that Wells Fargo complied with the wage statement presentation requirements by mailing the final wage statement to the plaintiffs.
  • John Nist v. Steven Hall; in a case involving the improper lien sale of the contents of a storage unit, the court of appeals affirmed the trial court’s judgment in favor of Mr. Hall, who was the bona fide good faith purchaser of the contents at the lien sale. Further, the action was held to be judicially estopped by Mr. Nist’s prior action against the storage facility on the same facts, which resulted in a $12,000 settlement agreement in Mr. Nist’s favor and dismissal with prejudice.
  • The People v. Job Luna Medina; the court of appeals affirmed the trial court’s denial of Mr. Medina’s petition to reduce his felony conviction for possession of marijuana with intent to sell from 2015. In its analysis, the court described the difference between criminal acts and criminal conspiracies, and that conspiracies, such as Mr. Medina was convicted of, may constitute graver offenses than the acts themselves due to the collaboration of multiple criminals in conspiracy against the People.  The court additionally held that the plain terms of Proposition 64 and other statutes provide that serious crimes involving marijuana may still be pursued and punished by the government, and the movement of large quantities of illicit marijuana qualifies as a serious crime.
  • Rockefeller Technology Investments (Asia) VII v. Changzhou Sinotype Technology Co., Ltd.; in a dispute involving an aborted international business transaction, Rockefeller attempted to engage in arbitration, in which Changzhou failed to appear, resulting in a $414 million verdict in favor of Rockefeller. Changzhou ultimately appeared 15 months later and moved to set aside the verdict on the grounds that they had never been served pursuant to the Hague Conventions of international service.  The trial court held that service by mail was the privately agreed-upon means of service, and Rockefeller complied with those terms, but the court of appeals held that because the Hague Convention prohibits contracting for service by means that are not permissible by the receiving country, and China does not permit service by international mail, the judgement was void for failure to properly serve Changzhou.
  • Port Medical Wellness, Inc. v. Connecticut General Life Insurance Company, et alterius; in a case dealing with a dispute between two corporate entities related to the Employee Retirement Income Security Act of 1974, which generally preempts state claims, the court of appeals affirmed the entry of judgment in favor of Connecticut General. While the court engaged in preemption analysis, finding some claims preempted and other not preempted, the court ultimately affirmed judgment on the failure of Port Medical to raise triable issues of fact.

From the Third Appellate District –

  • Public Employees’ Retirement System v. Santa Clara Valley Transportation Authority [AND] Amalgamated Transit Union Local 1555; the court of appeals affirmed judgment against the Retirement System in two separate actions brought by California’s Public Employees’ Retirement System, as opposed to the board that administers the system. While the underlying facts of case involved the interpretation of certain benefits, the two actions here were determined on the basis of CalPERS failure to exhaust its administrative remedies prior to bringing the actions to superior court, as the exact same issues brought by CalPERS are presently pending in over 400 administrative appeals.  While CalPERS argued that it is not required to exhaust its administrative remedies, the court of appeals considered that the agency cannot seek a judicial imprimatur for its policy, which would be applied to pending cases, in an effort to thwart the established administrative adjudicative process.
  • Alliance for California Business [AND] Jack Cody v. State Air Resources Board et alterius; in two cases consolidated for appeal, Mr. Cody, a trucker, and the Alliance for California Business sought to challenge California’s requirement that all trucks operating in California be fitted with diesel particulate filters. In its opinion, the court of appeal upheld the trial courts’ determination that the courts lacked jurisdiction to review the regulation under Federal Law.  Specifically, there is a federal statute that provides that any challenges to these types of regulations under the Clean Air Act give original and exclusive jurisdiction to federal courts of appeal, rendering state courts without jurisdiction to consider these types of claims.

From the Fourth Appellate District –

  • Airs Aromatics, LLC v. CBL Data Recovery Technologies, Inc.; Airs sued CBL on a breach of contract cause of action and demanded relief “in an amount to be proven at trial”, but in any case “exceeded $25,000.” After Answering and engaging in settlement negotiations, CBL withdrew its answer and Airs obtained a default judgment in the amount of $3,016,965.03 in the year 2011.  CBL then came into court in 2016 seeking to set aside the default judgment by arguing that the default was void for exceeding the $25,000 demanded in Airs complaint.  The trial court denied CBL’s motion, but the court of appeal ordered that the motion should be granted, as the section governing default judgment is strictly construed to require that the complaint provide sufficient notice to non-answering defendants and the entry of judgment in excess of the amount stated was void.
  • Stephen Bushansky v. Patrick Soon-Shiong et alterius; the court affirmed the dismissal of a shareholder derivative action based on a Delaware forum selection clause. While Mr. Bushansky argued that the selection clause was inappropriate due to Delaware’s lack of personal jurisdiction over every necessary party at the time the litigation was filed, the court of appeals reasoned that because the contract was silent as to the time necessary to determine personal jurisdiction was required, the parties intended a reasonable time frame for such jurisdiction, which has since been obtained.
  • Thomas E. Morgan v. The Superior Court of Orange County [Real Party in Interest] Nancy Morgan Shurtleff et alterius; here, the court of appeals denied Mr. Morgan’s petition for a writ of mandate when the trial court had ordered him to produce all communications, including attorney-client communications, between Mr. Morgan in his capacity as the trustee for a trust and a successor trustee. The court held that in the context of a trust, attorney-client privilege rests between the office of the trustee and the attorney, and any successor trustee has the right to review confidential communications to and from the office of trustee.
  • The People v. Richard Brunton; after being convicted on several charges associated with chocking a fellow inmate with a towel with the intent to kill, the court of appeals agreed with Mr. Brunton’s argument that his conviction on both charges of ‘assault by means of force likely to produce great bodily harm’ and ‘assault with a deadly weapon’ were duplicative as being based on the same facts, and remanded to the trial court to strike one of the convictions.
  • Abbott Laboratories et alterius v. The Superior Court of Orange County [Real Party in Interest] The People ex relatione Tony Rackauckas, as District Attorney, et cetera; in a 2-1 decision the court of appeals granted Abbot Laboratories writ seeking to prevent the Orange County District Attorney from seeking to pursue charges against Abbot, Teva Pharmaceuticals, Barr Pharmaceuticals, and Duramed Pharmaceuticals related to a conspiracy to keep generic drugs off of the market. The court of appeals granted the writ based on the Orange County’s lack of authority to seek relief on behalf of the State and the People of California, being limited only to the People of the County of Orange.  In a dissenting opinion, Justice Dato argued that the granting of this particular writ was unnecessary, as the petitioner only sought to strike the words ‘California’ and ‘in California’ from the language of the complaint, and to the extent that the District Attorney can only recover relief on behalf of the People of the County of Orange, the issues of damages and equitable relief can be adequately addressed by the trial court and assessed on a proper record, not at the outset of litigation through the mechanism of a motion to strike.
  • Rosa Jensen v. The Home Depot, Inc. et alterius; after the trial court reasonably sustained a demurrer on a first amended complaint without leave to amend due to the plaintiffs’ failure to cure defects from the original complaint, failure to oppose the demurrer, failure to request oral arguments, and failure to request leave to amend, the court of appeals nevertheless reversed the trial court’s entry of judgment when Ms. Jense, for the first time on appeal, argued that her case should have been severed from the underlying case and she would be able to present valid claims upon filing a new complaint.
  • In re R.W., a Person Coming Under the Juvenile Court Law [OR] The People v. R.W.; the court of appeal affirmed R.W.’s citation for obstructing an officer in the performance of her duties when R.W., after having been arrested on a carjacking case, determined to not have committed the crime, and then placed under supervision by the Police officers until R.W.’s parent arrived, attempted to leave the supervision of the officer, was handcuffed hand cited, and then released into her parent’s custody a short period later. The court of appeals reasoned that even though R.W. was not officially in Police custody as a criminal detainee, minors are always in somebody’s custody, and the State has a responsibility to supervise minor in situations like those presented here, such that R.W.’s citation was lawful.

From the Fifth Appellate District –

  • Gerawan Farming, Inc. v. Agricultural Labor Relations Board [Real Party in Interest] United Farm Workers of America; in a case involving a de-certification election by an incumbent union of farmworkers, the Agricultural Labor Relations Board was determined to have erred in several of its findings of unfair labor practices as well as in the legal standard applied in reaching its remedial conclusions. On this basis, the court granted Gerawan Farming’s petition vacating the Board’s decision to set aside the decertification vote, and remanded the case to the Board for further proceedings based on the 138 page decision.

From the Sixth Appellate District –

  • The People v. Irvin Sacrite; on appeal from an order of two-years probation for crimes related to the possession and use of methamphetamine, Mr. Sacrite argued that the trial court erred in failing to suppress evidence gathered based on a ‘pat search’ that ultimately revealed Mr. Sacrite’s possession of illegal substances. The court of appeals held that the officer conducting the search had “specific and articulable facts” that Mr. Sacrite may have been armed, rendering the pat search legal, and the evidence derived from the search admissible.

Supreme Court – Roundup

This Week, the Supreme Court published 3 cases, including:

  • The People v. Charles Edward Case; where the Supreme Court affirmed the death sentence of Mr. Case when he murdered two people during the commission of a robbery, where he ultimately stole $320. The Court did, however, order that the $10,000 awarded in restitution be reduced by the amount awarded to a direct victim.  In a Dissenting and Concurring opinion by Justices Liu and Chaney, the justices would have found that the police officers deliberately violated Mr. Case’s rights under Miranda v. Arizona (1966) 384 U.S. 436, but that the violation would have been constitutionally harmless due to the fact that regular Police practice would have discovered the same people that were interviewed based on the tainted evidence.
  • The People v. Warren Justin Hardy; following the conviction of the 1998 kidnapping, rape, torture and murder of Ms. Penny Sigler in Long Beach, this automatic death penalty appeal was affirmed by the Supreme Court in a 6-1 decision. Justice Liu dissented on the grounds that the prosecution used peremptory strikes to remove every single black juror from the jury panel of Mr. Hardy, who is black man.  Justice Liu concluded that, more likely than not, Mr. Hardy was convicted by a panel that was not selected free of improper discrimination; the majority, however determined that under current law the reasons described by the prosecution for each strike were genuine.
  • The People v. Richard Penunuri; in another 6-1 opinion, the Supreme Court affirmed the death sentence for Mr. Penunuri for the robbery and murder of three victims, along with other crimes. In the dissenting opinion by Justice Cuéllar, the Justice argued that there was prejudicial error in allowing another defendant’s testimony that Mr. Penunuri committed all of the murders to come in without allowing Mr. Penunuri to cross-examine the accomplice.  The majority had found the error constitutionally harmless because there was sufficient corroboration from other sources.

In the Supreme Court’s Weekly Summary of Accepted Cases, the court has announced that no cases were accepted this week.

Additionally, please tune in this week for oral argument that will be occurring before the Supreme Court, and viewable online via the Court’s website, arguments will be heard starting at 2PM on June 5th, and 9AM on June 6th.

Week in Review (May 29, 2018)

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Week of:                      May 21, 2018
Publication Date:       May 29, 2018

From the First Appellate District –

  • The People v. Joshua J. Williams; where the court of appeals affirmed the trial court’s denial of Mr. Williams’ petition for re-sentencing under Proposition 47, where he was previously convicted for receiving a stolen vehicle. The court held that because Mr. Williams had not established that the value of the stolen property was valued at less than $950, the petition was properly denied without prejudice to refiling.
  • Professional Collection Consultants v. Robert M. Lujan; in a partially published case, the court of appeals held that when Professional Collection Consultants attempted to collect a debt owed by Mr. Lujan, the cardholder agreement that required Mr. Lujan repay his credit card debt was governed by Delaware’s three-year statute of limitations rather than California’s four-year statute of limitations when there was an express choice of law provision for Delaware law and “no fundamental policy of California is offended by applying Delaware’s somewhat shorter statute of limitations.” Accordingly, judgment in favor of Mr. Lujan on the issue of his debt was affirmed.
  • Ada Abed v. Western Dental Services, Inc.; the court of appeals reversed the trial court’s entry of judgment in favor of Western Dental Services on an employment claim which was entered based on Ms. Abed’s failure to file a job application. The court held that Western Dental could be held liable for sex discrimination by lying to Ms. Abed in telling her no dental hygienist position was available because they did not want to hire Ms. Abed, who was pregnant at the time she was told this.  Further, the court held that “it is hardly surprising that Abed did not seek a job there once she discovered she had been lied to… Western Dental [cannot] escape liability for past discriminatory acts merely because Abed did not demonstrate an ongoing interest in becoming a dental assistant by applying for similar positions, including in offices that were inconveniently located.”
  • The People v. Reginald Brown; where the court affirmed the conviction of Mr. Brown on various acts of sexual abuse and lewd acts upon children under the age of 14, including Jane Does 1, 2, and 3. On appeal Mr. Brown argued that the conviction for crimes against Jane Doe 3 should be reversed on statute of limitations grounds, as his last sexual act against her occurred in 1994, when Jane Doe 3 was around 13 years old.  The court held that the statute of limitations was tolled under a specific tolling provision, as Jane Doe 3 satisfied all of the tolling elements, including that (1) she was under 18 when she was offended against, (2) the statute of limitations expired, (3) the offense involved substantial sexual conduct, and (4) there was independent evidence corroborating the allegation.
  • Charles T. Jensen et alterius v. City of Santa Rosa [Real Party in Interest] Social Advocates for Youth; the court of appeal affirmed the City of Santa Rosa’s mitigated negative declaration under the California Environmental Quality Act for a project that would turn a defunct 69-bed hospital into a youth facility housing 63 young adults. Jensen and the other nearby residents opposed to the conversion argued that the City should have conducted a full environmental impact report because they expect that there will be increased traffic noise, and the residents will also make additional noise.  The court considered that the opponents to the project based their noise calculations on a “hard-to-grasp methodology [which] appears to require us to compare the highest possible predicted noise levels from the outdoor activities to appellants’ own calculated maximum allowable noise levels, rather than comparing an average noise value… with the base levels identified in the City Code.”
  • The People v. Justin Brooks; the court of appeals affirmed Mr. Brooks’ conviction for burglary and the order of restitution including security improvements, holding that the trial court’s inclusion of Mr. Brooks’ prior, uncharged, offenses did not constitute prejudicial error, and that California’s restitution laws generally permit any reasonable restitution that is corrective and equitable.
  • The People v. Jeremy Simms; where the court of appeals vacated the trial court’s determination of Mr. Simms’ Proposition 47 petition, holding that the trial court deprived Mr. Simms of his right to be present for the determination of eligibility.

From the Second Appellate District –

  • Sandra Diaz et alterius v. Grill Concepts Services, Inc. et alterius; where the court of appeals affirmed entry of judgment in favor of Ms. Diaz, holding that employers are subject to “waiting time” penalties and are considered to be “willfully” failing to make proper payments when they suspect that they should have paid, but didn’t, then make unreasonable arguments regarding the law being unconstitutionally vague. Additionally the court held that the trial court correctly determined that it did not have discretion to waive the waiting time penalties.
  • Salima Multani v. Evelyn Knight; in a commercial landlord-tenant dispute, the court of appeals held that when a tenant refuses to pay rent, and is in the process of being evicted, they cannot properly allege causes of action stemming from damages caused by a sewage backup that was not caused by any acts of omissions by the landlord, as the tenant had no legal right to be in possession of the property, the landlord had no further contractual or economic duties stemming for damages caused by the sewer backup.
  • The People v. Roderick Washington; where the court of appeals reversed the trial court’s summary denial of Mr. Washington’s petition for reclassification of his burglary conviction under Proposition 47. The court held that the trial court erred in its summary denial because Mr. Washington submitted prima facie evidence that he had stolen less than $950 in property, which requires further inquiry into the petition.

From the Third Appellate District –

  • Terri Raines v. Coastal Pacific Food Distributors, Inc.; when Ms. Raines was terminated, she filed various employment claims including age and disability discrimination and failure to provide accurate wage statements. Raines causes of actions were all adjudicated in favor of Coastal Pacific due to Ms. Raines failure to provide a triable issue of fact as to injury.  The court of appeal agreed with the trial court’s determination, except for Ms. Raines cause of action under the Private Attorneys General Act, where the court of appeal reversed the trial court, and held that civil penalties awardable under such a cause of action do not necessarily require an injury when the purpose of the cause of action is to prevent and punish violations of the law, and not necessarily compensate a plaintiff for an injury.

From the Fourth Appellate District –

  • J.N. v. The Superior Court of Orange County [Real Party in Interest] The People; J.N. petitioned the court of appeals for a writ of mandate reversing the juvenile court’s determination that he was not suitable for treatment in the juvenile court pursuant to the requirements of the recently passed Proposition 57. Here, the court of appeals reversed the juvenile court’s determination, holding that in its review of the five statutory factors as to whether J.N. should be tried as an adult, the court abused its discretion making findings on two of the factors that were not supported by substantial evidence, specifically the circumstances and gravity of the charged offense, and whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction.
  • The People v. Peter Balov; where the court of appeals affirmed the trial court’s denial of Mr. Balov’s request to suppress the results of a blood test, which demonstrated he was driving while intoxicated at above the legal limit. The court held that the arresting officer properly offered Mr. Balov the option of either taking a blood test or a breath test, and Mr. Balov consented to the blood test.  The officer did not ‘coerce’ Mr. Balov by failing to inform him about the statutory consequences of refusing to submit to either the blood or breath test.
  • In re Albert Lugo Ruedas; on a habeus corpus writ seeking the retroactive application of the California Supreme Court decision People v. Sanchez (2016) 63 Cal. 4th 665, regarding his own conviction for gang related crimes, the court of appeal denied Mr. Ruedas’ petition, holding that Sahnchez is not retroactive pursuant to the standards for retroactivity set forth in Teague v. Lane (1989) 489 U.S. 288, or even under the more lenient standards described in Stovall v. Denno (1967) 388 U.S. 293, or Linkletter v. Walker (1965) 381 U.S. 618.
  • D.C. Randall, Jr. v. Ditech Financial, LLC; where the court of appeal reversed and remanded the trial court’s sustaining a demurrer without leave to amend on a wrongful foreclosure action. The court held that the second amended complaint was improperly sustained without leave to amend because the facts could be amended to plead a cause of action for unfair or unconscionable debt collection practices under a federal cause of action.  The court of appeal reached its decision based in part on new facts presented to the court on appeal that were not presented to the trial court.
  • The People v. Israel Soto; the court of appeals affirmed the trial court’s denial of Mr. Soto’s petition under Proposition 47 for re-sentencing. Both the trial court and the court of appeal held that Mr. Soto’s conviction for theft from an elder was categorically precluded from relief under Proposition 47, and expressed hesitance at the possibility of converting every possible aggravated form of theft into crimes subject to re-sentencing under Proposition 47.
  • In re E., a Person Coming Under the Juvenile Court Law [OR] The People v. E.P.; where the court of appeals reversed the trial court’s adjudication on E.P.’s conviction of burglary and receiving stolen property. The court agreed with E.P. that Proposition 47’s reclassification of the stolen property cause of action into a shoplifting misdemeanor requires reversal of the burglary cause of action, and that E.P. could not be charged with both receiving stolen property and the theft of that same property.
  • Yvonne Reid et alterius v. City of San Diego et alterius; where the court of appeals affirmed the City’s demurrer without leave to amend on Ms. Ried’s putative class action for “an illegal hotel tax” as both time barred under the statute of limitations and as failing to state a cause of action. The case involved the interpretation of San Diego’s municipal code as between a 30-day statute of limitations and a 60-day statute of limitations, and involved a prior litigation on substantially the same issue in 2012 that was ultimately rendered moot in an ordinance amendment in 2016.

From the Fifth Appellate District –

  • In re the Marriage of Leslie P. and Robert D. Rodriguez [OR] Leslie P. Rodriguez v. Robert D. Rodriguez [Respondent] Stanislaus County Department of Child Support Services; where the court of appeals affirmed child custody payments in the amount of $1,273 for the Rodriguez’s three children. Rodriguez had appealed on the basis that the trial court failed to correctly calculate child support by failing to take into account his computing business’ depreciation of assets and by deviating from the child support guidelines without adequate evidentiary support.  The court held that the tax deduction was properly considered and added back into the calculation for child support purposes by the trial court, and that the special circumstances involving the three children, all adopted and requiring 24-hour support for their medical conditions, justified the deviation from the guidelines.
  • John Doe, a Minor, et cetera v. Good Samaritan Hospital; the court of appeals reversed the entry of judgment in favor of Good Samaritan Hospital in a case involving the standard of supervision the Hospital was obliged to provide to the Doe Plaintiff as a patient in the psychiatric unit, when he was placed in a room with an involuntarily admitted minor patient when Doe was subsequently sodomized by the involuntarily admitted patient. The appeal considered whether the Hospital’s conclusory expert witness declaration, which was unopposed on summary judgment, was sufficient to maintain their right to adjudication.  The court concluded that because the Hospital’s expert witness failed to specifically state the facts, standards, and circumstances that ultimately led to her conclusion that the Hospital was not negligent, judgment was not appropriate, and that the trial court should instead deny adjudication.

From the Sixth Appellate District –

  • Forrest Huff v. Securitas Security Services USA, Inc.; where the court of appeals affirmed the trial court’s grant of a new trial to Mr. Huff on an employment action under the Private Attorneys General Act, when he had failed to prove that he was personally injured by one of the multiple alleged labor code violations. The court of appeals held that Private Attorneys General Actions merely require that the person bringing the action “be brought by an employee ‘against whom one or more of the alleged violations was committed,’ a clear expression that the Legislature intended that a PAGA plaintiff be affected by at least one, but not necessarily all, of the violations alleged in the action.”
  • The People v. Timothy J. Miller; where the court of appeals upheld the trial court’s denial of Mr. Miller’s petition for a certificate of rehabilitation when the authorizing statutes only permit such certificates to issue when the petitioner has lived within the State of California for the five year period immediately preceding the petition, and Mr. Miller had filed his petition from outside of the state.
  • The People v. Andrew Marshall Berg; where the court affirmed the conviction of Mr. Berg on his possession of methamphetamine while present in the Monterey County Jail. The court held that Mr. Berg could not introduce evidence of his voluntary intoxication two days prior, upon his arrest, to negate the presence of general criminal intent.

Supreme Court – Roundup

This Week, the Supreme Court published 4 cases, including:

  • The People v. Floyd Daniel Smith; the Supreme Court affirmed judgment and penalty against Mr. Smith on a death penalty appeal from his conviction on one count of murder with special circumstances of lying in wait and two counts of attempted voluntary manslaughter in 1994 when Mr. Smith committed a murder in revenge for the killing of his friend, Manuel Farias. The decision was affirmed in its entirety.
  • Delano Farms Company et alterius v. California Table Grape Commission; in determining whether promotional speech generated by a compelled-subsidy program amounts to government speech, and whether the speech violates Delano Farms own rights, the Supreme Court held that the generic promotional speech activities here are government speech because there were sufficient mechanisms of government control over the message and composition of the California Table Grape Commission that it could properly be ascribed to the government of the State of California.
  • Facebook Inc. et alterius v. The Superior Court of the City and County of San Francisco [Real Party in Interest] Derrick D. Hunter et alterius; Mr. Hunter and other defendants in a murder case sought public and private communications from Facebook. When Facebook moved to quash the subpoena under the federal Stored Communications Act, the trial court denied Facebook’s motion to quash and the court of appeals granted the motion to quash.  Here, the Supreme Court partially granted and partially denied the motion to quash, holding that any communications that were designated as public, and were not direct one-on-one communications fell under the lawful consent exceptions to the Act, and should be produced.
  • In re Robert Lewis, Jr.; where the Supreme Court granted Mr. Lewis’ writ on habeus corpus, holding that his intellectual disability makes him ineligible for the death penalty.

In the Supreme Court’s Weekly Summary of Accepted Cases, the court has announced that 5 cases were accepted this week:

  • In re Humphrey; where the Supreme Court will consider whether (1) the Court of Appeal erred in holding that principles of constitutional due process and equal protection require consideration of a criminal defendant’s ability to pay in setting or reviewing the amount of monetary bail, (2) In setting the amount of monetary bail, may a trial court consider public and victim safety or must it do so, and (3) under what circumstances does the California Constitution permit bail to be denied in non-capital cases?
  • In re White; addressed one of the issues raised by In re Humphrey, where the court will consider under what circumstances does the California Constitution permit bail to be denied in non-capital cases.
  • People v. Crockett; where the court will review whether, under the “natural and probable consequences” doctrine, an aider and abettor may be properly convicted on the charge of premeditated attempted murder.
  • People v. Garcia; where the court accepted review on the question of whether a trial court may properly impose a criminal laboratory analysis fee and a drug program fee based on a defendant’s conviction for conspiracy to commit certain drug offenses.
  • People v. Henderson; which will address the question of whether a trial court abuses its discretion by ordering defendant to pay restitution to cover the cost of the victim’s increased residential security measures, although defendant was not convicted of committing a violent felony.

Week in Review (May 21, 2018)

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Week of:                      May 14, 2018
Publication Date:       May 21, 2018

From the First Appellate District –

  • Kerrie Reilly v. Marin Housing Authority; the court of appeals upheld the trial court’s sustaining a demurrer in favor of Marin Housing Authority, ultimately terminating Ms. Reilly’s Section 8 housing payments due to Ms. Reilly’s failure to make payments to Marin Housing Authority under a payment plan when she received money through the In-Home Supportive Services program due to her severely disabled daughter. Reilly challenged the payment plan’s calculation of her income as improperly including the payments from IHSS, but both the trial court and the court of appeals agreed that the IHSS payments were income rather than reimbursements.
  • The People v. Lonnie James Kerley; where the court of appeals upheld Mr. Kerley’s conviction on the second degree murder of his former girlfriend, Danna Denver, when the evidence at trial showed that he had a long history of physical abuse, and the trial court had not committed any prejudicial error.
  • The People v. Matthew Enrique Meza; where the court of appeals upheld the trial court’s decision permitting the admittance of a blood test taken from Mr. Meza without a warrant, but cautioned the court in holding that exigent circumstances were not demonstrated in this case that prevented a warrant from being obtained when two hours passed between the accident and the blood draw. The error was nevertheless held to be constitutionally harmless here when a doctor testified that the blood alcohol content of Mr. Meza was 0.128 percent when it was drawn by the hospital 40 minutes after the accident.
  • The People v. Gregory Hall; here, the court of appeals reversed Mr. Hall’s conviction on first degree murder with personal use of a knife when the trial court improperly allowed in evidence of a prior misdemeanor conviction where Mr. Hall had threatened a person with a large knife. The error occurred when the trial court reversed itself after determining the misdemeanor was likely more prejudicial than probative, and the prosecutor improperly argued in closing statements that the prior misdemeanor was evidence of Mr. Hall’s character rather than using the admitted evidence merely for impeachment purposes.

From the Second Appellate District –

  • The People v. Jose Antonio Espinoza; where the Court of Appeals affirmed the conviction of Mr. Espinoza on drug charges and denied Mr. Espinoza’s challenge to an expert’s identification of certain drugs as methadone and clonazepam pills based on the internet website ‘Ident-A-Drug,’ which the court held fell within the published compendium exception to the hearsay rule.
  • Shelly Albert v. Truck Insurance Exchange; in an underlying case, Ms. Albert’s neighbor had sued her for erecting a fence partially blocking a road that served as an easement to her neighbor’s property. When Ms. Albert tendered the claim to her homeowner’s insurance, it declined to cover the claim, and so Ms. Albert tendered the claim to her umbrella insurer.  While the trial court determined that the insurance contract did not cover this claim, the court of appeals held that the language of the insurance contract was ambiguous, and because is “may include non-physical invasions of rights in real property” the summary adjudication of the action should be reversed.
  • Thomas Darion Davis v. Appellate Division of the Superior Court of Los Angeles County [Real Party in Interest] The People; in seeking to suppress evidence gained through multiple warrantless searches that occurred during a traffic stop, the court of appeals held that Mr. Davis was required to describe with some specificity which search he was seeking to suppress out of the several that occurred. Without such information, Mr. Davis’ petition was denied by the court of appeals.
  • The People v. Alexander Jeffrey Vannesse; here, the court of appeals held that while a peace officer is required to inform a person arrested for driving under the influence of their option to take a blood test or a breath test, when an officer only informs the arrestee of the option of the blood test and they take it voluntarily, there is no violation of constitutional or statutory law prohibiting the use of the voluntarily provided test at trial. Vannesse’s motion to suppress such evidence was accordingly, denied.
  • Michael Benaroya v. Bruce Willis et alterius; in a payment dispute between Mr. Willis and Mr. Benaroya for a movie that was intended to be stared in by Mr. Willis and produced by Mr. Benaroya’s film company, Benaroya Pictures, the dispute proceeded to arbitration where the arbitrator awarded judgment against Benaroya Pictures and additionally determined that Mr. Benaroya was the alter-ego of Benaroya Pictures and subject to liability even as a non-signatory. Benaroya petitioned the trial court to vacate the judgment as to him personally, arguing that an arbitrator does not have the authority to make a determination as to alter-ego.  While the trial court affirmed the arbitration decision, the court of appeals reversed and remanded with instructions to vacate the award against Mr. Benaroya individually, in doing so the court of appeals held that “while the relevant JAMS rule here permits an arbitrator to determine whom among signatories to an arbitration agreement are proper parties for the dispute to be arbitrated, the rule cannot (and does not) permit the arbitrator to determine whether a nonsignatory to the arbitration agreement can be compelled to arbitrate.”

From the Third Appellate District –

  • The People v. Michael Williams; the court of appeals reversed Mr. William’s conviction for the first degree murder of his wife by stabbing her twice in the neck, causing her to bleed to death. The court of appeals held that the trial court impermissibly allowed in evidence underlying a prior conviction from 1992 for shooting with intent to kill in Oklahoma to be used by the prosecution to argue premeditation in the instant case.  Due to the scant relevance to the fact of this case and the significant prejudice of the introduction of the underlying facts, the court of appeals reversed and remanded for a new trial.
  • Charles E. Yeager et alterius v. Peter Holt et alterius; in a case predicated on a dispute between attorney’s fees owed by and between an attorney and a client, the trial court and the court of appeals both denied Mr. Holt’s Anti-SLAPP motion on the grounds that the Yeager’s compliant is fundamentally about the legal malpractice associated with the prior litigation on attorney’s fees, and is not a suit designed to punish speech. While the merits of the action itself may be “frivolous, vexatious, or untimely (based on the date of the termination of the attorney-client relationship), as Holt variously contends, that does not mean it chills expressive conduct.”

From the Fourth Appellate District –

  • Jorge Fierro et alterius v. Landry’s Restaurant Inc.; where the court of appeals reversed and remanded the trial court’s sustaining a demurrer on Mr. Fierro’s wage and hour claims on the grounds that the action was barred by a prior class action involving substantially the same issues. On review the court of appeals held that because the class action was merely ‘dismissed’ the dismissal does not act as res judicata precluding a later action by Mr. Fierro.
  • Carl Taswell, M.D. v. The Regents of the University of California; Dr. Taswell alleged that he was retaliated against for whistleblowing activities related to patient safety in the brain imaging center of UC Irvine. Taswell received a full and fair hearing before the administrative board of the UC system, but ultimately lost his appeal.  Rather than seeking an administrative writ, Dr. Taswell instead filed separate litigation in the superior court.  On appeal from dismissal by the trial court, the court of appeals held that Dr. Taswell was not required to seek a writ of mandamus to challenge the University’s rejection of his retaliation claims, and that he was authorized by statute to file the instant litigation in superior court.
  • In re Marriage of Linda M. and Bryan S. Marshall [OR] Linda M. Marshall v. Bryan S. Marshall; where the court of appeals affirmed the trial court’s division of assets in a divorce, particularly a 2006 community debt owed to the IRS on a capital gains liability and proceeds on a disability insurance policy that was purchased by the community and was intended to serve as retirement income. Accordingly, the court of appeals affirmed the trial court’s determination in favor of Mr. Bryan Marshall.
  • In re Nicandro Galaviz on Habeus Corpus; the court of appeals granted Mr. Galaviz’s petition for writ of habeus corpus. In 1996 Mr., Galaviz was committed to a term of 60 years to life on drug possession and assault charges, and after the trial court determined that he was incompetent to stand trial.  At the instant habeus corpus hearing, the court of appeals held that the 1996 commitment had improperly determined Mr. Galaviz’s incompetence to stand trial by failing to hold a competency hearing, and that absent evidence from 1996 that Mr. Galaviz was incompetent at the time of that trial, current evidence that he is presently incompetent to stand trial cannot prevent him from withdrawing his plea of not guilty by reason of insanity.
  • Duncan E. Prince v. Invensure Insurance Brokers, Inc. [And Cross-Defendant] ERM Insurance Brokers, Inc.; in a business dispute between three former partners in an insurance company, a jury found in favor of one of the partners who left the insurance firm, determining that the other partners had failed to pay him amount due and owing from an older transaction merging Prince’s company with Investsure Insurance Brokers. After returning a judgment of over $600,000.00, the trial court then denied Prince’s attorney’s fees and expert witness costs.  The court of appeals ultimately affirmed the jury’s verdict, but reversed and remanded on the issues of attorney’s fees and costs, finding that Prince had submitted a valid, and rejected, settlement offer under Code of Civ. Proc. §998, thereby entitling Prince to attorney’s fees and expert costs.

No published opinions from the Fifth or Sixth Appellate Divisions.

Supreme Court – Roundup

This Week, the Supreme Court published 3 cases, including:

  • United Riggers & Erectors, Inc. v. Coast Iron & Steel Co.; where the Supreme Court held that a direct contractor cannot withhold payments to a subcontractor for completed work when there exits a good-faith dispute regarding other work. The case was ultimately decided as a matter of the statutory construction of Civil Code Section 8814, where the court ultimately determined that the legislature did not create a broad statutory right to withhold payments from subcontractors, but rather that the purpose of the statute was intended to be a limited remedial exception to the general purpose of paying subcontractors for the work they perform.
  • The People v. Jesus Manuel Rodriguez and Edgar Octavio Barajas; where the Supreme Court acquitted Mr. Barajas on his convictions for murder, conspiracy to commit murder and participation in a street gang upon the Attorney General’s concession that accomplice testimony was not sufficiently corroborated to maintain the convictions, and remanded the issue of Mr. Rodriguez’s case to the court of appeals to provide him an opportunity to make a record as to his youthful offender parole hearing in 25 years, with his constitutional challenge to his 50 years to life sentence deemed moot upon the enactment of the new statutory schema for youthful offenders.
  • The People v. Feliz Corral Ruiz II; where the Supreme Court affirmed the court of appeal’s determination that a conviction for conspiracy to transport a controlled substance may properly be punished by the imposition of criminal laboratory analysis fees due to a portion of the Penal Code that imposes persons convicted of conspiring to commit a felony in the same manner and to the same extent as is provided for the punishment of that felony.

In the Supreme Court’s Weekly Summary of Accepted Cases, the court has announced that 6 cases were accepted this week:

  • Gonzalez v. Mathis, S247677. Petition for review after the Court of Appeal reversed the judgment in a civil action.  This case includes the following issue:  Can a homeowner who hires an independent contractor be held liable in tort for injury sustained by the contractor’s employee when the homeowner does not retain control over the worksite and the hazard causing the injury was known to the contractor?
  • People v. Anderson, S248208. Petition for review after the Court of Appeal modified and affirmed a judgment of conviction of a criminal offense.  The court ordered briefing deferred pending decision in People v. Ruiz, S235556 (#16-312), which presents the following issue:  May a trial court properly impose a criminal laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)) and a drug program fee (Heath & Saf. Code, § 11372.7, subd. (a)) based on a defendant’s conviction for conspiracy to ommit certain drug offenses?
  • Duchan v. Los Angeles Unified School Dist., S247573. Petition for review after the Court of Appeal affirmed an order granting in part a special motion to strike in a civil action.  The court ordered briefing deferred pending decision in Wilson v. Cable News Network, Inc., S239686 (#17-83), which presents the following issue:  In deciding whether an employee’s claims for discrimination, retaliation, wrongful termination, and defamation arise from protected activity for purposes of a special motion to strike (Code of Civ. Proc., § 425.16), what is the relevance of an allegation that the employer acted with a discriminatory or retaliatory motive?
  • People v. Esquivel, S247832. Petition for review after the Court of Appeal remanded and affirmed a judgment of conviction of criminal offenses.  The court ordered briefing deferred pending decision in People v. Canizales, S221958 (#14-134), which presents the following issue:  Was the jury properly instructed on the “kill zone” theory of attempted murder?
  • People v. McDuffy, S247616. Petition for review after the Court of Appeal dismissed as moot an appeal from a judgment of conviction of criminal offenses.  The court ordered briefing deferred pending decision in People v. Mendoza, S238032 (#17-32) and People v. Padilla, S239454 (#17-34), which present issues as to the requirements under Montgomery v. Louisiana (2016) 577 U.S. __, 136 S.Ct. 718, 193 L.Ed.2d599, and Miller v. Alabama (2012) 567 U.S. __, 132 S.Ct. 2455, 183 L.Ed.2d 407, for imposing a sentence of life imprisonment without possibility of parole on a juvenile offender.
  • People v. Wallace, S247488. Petition for review after the Court of Appeal affirmed a judgment of conviction of criminal offenses.  The court ordered briefing deferred pending decision in People v. Bullard, S239488 (#17-64), which presents the following issue:  Does equal protection or the avoidance of absurd consequences require that misdemeanor sentencing under Penal Code sections 490.2 and 1170.18 extend not only to those convicted of violating Vehicle Code section 10851 by theft, but also to those convicted for taking a vehicle without the intent to permanently deprive the owner of possession?  (See People v. Page (2017) 3 Cal.5th 1175, 1188, fn. 5.)

Week in Review (May 14, 2018)

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Week of:                      May 07, 2018
Publication Date:       May 14, 2018

From the First Appellate District –

  • The People v. Benito Guzman; where the court of appeals affirmed the probation condition authorizing warrantless searches of Mr. Guzman’s electronic devices. The Court held that the probation condition was both necessary for compliance with the Sex Offender Caseload Conditions of probation, and for the safety of vulnerable minor children, as Mr. Guzman was charged on two felonies, and entered a pled guilty to one count of arranging a meeting with a minor for the purpose of committing a sexual offense.
  • Contractors’ State License Board v. The Superior Court of Contra Costa County [Real Party in Interest] Black Diamond Electric, Inc.; here the court of appeals issued a peremptory writ preventing Black Diamond from noticing the deposition of David R. Fogt, the Board’s Registrar of Contractors, and a high government official generally protected from having his deposition taken under California’s rules regarding “apex depositions.” The court held that Black Diamond had not identified any specific factual information that was only known by Fogt, and the deposition was noticed specifically to inquire about processes and legal information about the Board, making it improper.
  • The People v. Miguel Angel Torres; where the court of appeals affirmed the conviction of Mr. Torres on one count of second degree robbery causing great bodily injury, five counts of digital penetration, one count of sexual battery by restraint, and one count of forcible rape, finding no error in the admission of evidence or the prosecutions conduct. The court nevertheless remanded the case for resentencing, finding that the trial court erred in its determination that Proposition 36 (the Three Strikes Law) required consecutive sentencing; such discretion remains with the courts, and the sentence should be re-issued with the correct guidelines under consideration.

From the Second Appellate District –

  • The People v. Jeffrey Minifie; where the court of appeals affirmed the guilty verdict in multiple charges against Mr. Minifie related to his kidnapping a former girlfriend, leading police in a high-speed chase through downtown Los Angeles, and ultimately causing his former girlfriend’s death when he caused a head-on collision with another car. At issue on appeal was whether the trial court properly sentenced Mr. Minifie to multiple, consecutive, sentences for his crimes and the various enhancements when he was already being sentenced to an indefinite term.  The court held that rather than accept the 15 years-to-life reflected by the second degree murder charge, the trial court properly sentenced Mr. Minifie to 30 years, 8 months to life in prison, which encompassed all the definite terms for the crimes committed together with the enhancements, and the indefinite term for the murder charge.
  • Dave Pebley v. Santa Clara Organics, LLC, et alterius; in an appeal of an award for medical and economic expenses following a car accident, the Court of Appeals affirmed the award of $3,644,000.00 but modified the award of damages on two medical bills downward in order to match the amounts paid by Mr. Pebley’s insurance providers with the amount awarded. The modification downwards was $1,063.00.
  • The People v. Miguel Angel Jimenez; where the court affirmed the trial court’s modification of Mr. Jimenez’s conviction under Proposition 47. The court held that cashing two checks, each valued less than $950, constituted shoplifting offenses subject to downward modification under Proposition 47, and not crimes of false pretenses that would have precluded the downward modification.
  • Lamar Advertising Co. v. County of Los Angeles et alterius; in 2008 a billboard owned by Lamar Adverting was blow over by the wind. When Lamar Advertising rebuilt the billboard it was cited by the County for violating county ordinances, which banned billboards in the area that had not received a permit between the adoption of the ordinance in 1995 and the end of the amortization period in 2000.  Lamar had not sought the permit, did not receive a permit, and therefore rebuilding the billboard in a banned area was impermissible and both the trial court and court of appeals upheld the violation.
  • Olvin Maldonado et alterius v. Epsilon Plastics, Inc.; here, the court of appeals affirmed a verdict against Epsilon on wage and hours claims based on an improperly adopted Alternate Work Schedule, but remanded to the trial court for recalculation of damages based on slightly different overtime premiums, calculations for waiting time penalties, and elimination of the wage statement penalties imposed.
  • The People v. Akintunde Hakeem Ogunmowo; where the court of appeals reversed the trial court’s denial of Mr. Ogunmowo’s petition to vacate his 1989 conviction for possession for sale of a controlled substance. The court of appeals held that Mr. Ogunmowo’s declaration that his former defense attorney’s advice that his immigration status would not be adversely affected by a guilty plea was sufficient to establish that Mr. Ogunmowo experienced prejudice, and is entitled to vacate his conviction.
  • Ron Hacker, as Trustee, et ceteta v. Homeward Residential Inc., et alterius; the court of appeals reversed the trial court’s sustaining a demurrer against Mr. Hacker, holding that the trial court abused its discretion when it denied Mr. Hacker’s request for leave to file an amended complaint, as there exists a possibility that Mr. Hacker can cure the deficiencies by alleging that a deed transfer was void, and thereby establish standing to pursue the wrongful foreclosure litigation.
  • The People v. Jimmy Valenzuela; where the court of appeals affirmed the guilty verdict of the jury on the two murder charges and special circumstances, but remanded to the trial court to consider whether the sentence should be modified regarding the gun enhancements.
  • Doris Charles et alterius v. Sutter Home Winery, Inc. et alterius; where the court of appeals affirmed the dismissal on demurrer of Ms. Doris’ putative class action under the California Safe Drinking Water and Toxic Enforcement Act of 1986 for the alleged inclusion of carcinogenic arsenic in wine. The trial court held, and the court of appeals affirmed, that the wine maker had complied the safe harbor provision for alcoholic beverages by placing a warning on its bottles, and was therefore protected as a matter of law from the instant litigation.
  • Strategic Concepts, LLC v. Beverly Hills Unified School District; where the court of appeals reversed the jury verdict in favor of Strategic Concepts when the trial court erred in failing to instruct the jury on the application of the government code sections related to the prohibition of conflicts of interest in making public contracts and the requirement that certain contracts must be subject to competitive bidding. The court further concluded that Government Code Section 1090, prohibiting conflicts in public contracts, applies to independent contractors.

One case from the Los Angeles Superior Court’s Appellate Division, on an unlawful detainer matter:

Andy Hsieh v. Burton Pederson et alterius; where the appellate division reversed judgment on the pleadings in favor of defendants when the trial court had erred in finding that the case was filed prematurely.  The court agreed that plaintiff was only required to give defendants 3 days under the code, but that when he gave them 14 days, the calculation of days should have been determined as having expired four days prior to filing the litigation.  The case was therefore not premature, and the court reversed judgment.

From the Third Appellate District –

  • Randy Tindell et alterius v. Linda Murphy et alterius; this case is based on the sale of a home for $320,000 in 2004, and the subsequent inability of the Tindells to refinance their home when it was re-appraised in 2009 and determined to be a ‘manufactured’ home rather than a ‘modular’ home. In arguing that the defendants owed them a duty to have informed them of the status of the property, the court of appeals ultimately agreed with defendants and the trial court in holding that plaintiffs failed to state a cause of action against several of the defendants because the sellers had no duty to the Tindells, the sellers were not unjustly enriched when the 2004 appraisal was done by the Tindell’s mortgage lender, and there were no other inferences that could be drawn to support plaintiff’s causes of action in light of their allegations.
  • Bryan Blue et alterius v. California Office of the Inspector General et alterius; where the court of appeals reversed the trial court’s denial of an Anti-SLAPP motion. The court held that the plaintiff’s causes of action arising out of the Inspector General’s investigation of the use of force at a prison, and denial of counsel during an interview of several prison guards, constituted a protected activity on the part of the Inspector General, and that the plaintiffs did not establish a likelihood of success because “a reasonable person in the plaintiffs’ position would not have so believed… [that they] were under investigation for any suspected misconduct… [t]hus, none of them had a reasonable basis to believe their interview with the OIG ‘could lead to punitive action’ against them.”
  • Han Jing Huang v. Tom Hanks [And 30 Other Cases]; where the court of appeals affirmed the dismissal of 31 cases filed by Mr. Huang alleging that various celebrities were utilizing mind reading facilities in Texas to make people stalk him, harass him, threaten him, using nano probes to attack him, and attacking his mouth by destroying the inner skin with bacteria ultimately causing him to ask a dentist to remove one of his teeth. The court of appeals held that courts have the inherent power to dismiss patently frivolous or vexatious litigation, and that such power was properly exercised here.

From the Fourth Appellate District –

  • In re the Marriage of G.C. and R.W. [OR] G.C. v. R.W.; in the dissolution of marriage between G.C. and R.W., the court of appeals upheld the trial court’s determination that the correct date for the domestic partnership under California law was 2009, because their 2004 domestic partnership in New Jersey was not substantially similar to California’s law, but reversed the trial court’s division of assets, holding that the interest generated on their shared residence belonged to the community and was not equitably divided.
  • Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism; the court of appeals applied the Supreme Court case Baral v. Schnitt (2016) 1 Cal.5th 376 in partially affirming and partially reversing the trial court’s denial of Morris Cerullo World Evangelism’s Anti-SLAPP motion, and held that the motion should be granted as to three of the paragraphs in Newport Harbor Office’s third amended complaint.
  • Christopher Alexander et alterius v. Scripps Memorial Hospital La Jolla et alterius; when a 70-year-old terminally ill cancer patient had an advance health care directive stating that she wanted all measures taken to extend her life, the trial court properly resolved the claims in favor of the health care defendants when there was no dispute that the medical techniques that the healthcare providers allegedly failed to use would have been ineffective at prolonging her life, and would have unnecessarily caused her to suffer prior to her passing.
  • Alysia Webb v. City of Riverside; the court of appeals affirmed the trial court’s sustaining the City’s demurrer to Ms. Webb’s suit alleging violations of Propositions 26 and 218. The Court held that Webb did not file within the 120-day statute of limitations when the City allegedly transferred money from the electric utility reserve fund into the general fund without voter approval.  And that Webb could not establish that the transfer of funds constituted a ratepayer increase under Proposition 26 that would permit the litigation to continue on that basis.

No cases this week from the Fifth or Sixth Appellate Districts

Supreme Court – Roundup

This Week, the Supreme Court published 4 cases:

  • California Building Industry Association v. State Water Resources Control Board; in a dispute over whether the State Water Resources Control Board could modify a permit fee schedule on a two-member vote, and whether such a modification was impermissible under the Water Code and the State Constitution, the Supreme Court held that the vote to approve the fees was proper, the permitting fees were reasonably related to regulatory activities, and they did not violate the State Constitution.
  • The People v. Alfredo Perez, Jr.; where Mr. Perez petitioned for resentencing under Proposition 36, the Three Strikes Reform Act, the Supreme Court held that he was ineligible for the petition because substantial evidence did not support the trial court’s determination that he qualified for resentencing under the act because his last crime was committed with a “deadly weapon” because the crime occurred through the use of assault with a car, which qualifies as a deadly weapon because of the likelihood of great bodily injury.
  • The People v. Ennis Reed; in an automatic death penalty appeal, the Supreme Court affirmed the sentence for Mr. Reed’s multiple murders by use of firearms, finding that Mr. Reed’s arguments lacked merit. This case features a dissenting opinion authored by Justice Liu and joined by Justice Kruger, who considered that the prosecutions striking of several black jurors raised an inference of discrimination, and that the eyewitness identifications was problematic, as it was the principal evidence that linked Mr. Reed to the murders and should be subject to the type of screening that New Jersey and Oregon use for eyewitness testimony.
  • The People v. Steven Andrew Adelmann; where the Supreme Court resolved yet another procedural issue with Proposition 47, in holding that when a person whose case has been transferred to another county applies for resentencing under Proposition 47, that person must seek relief in the original sentencing court, in the county in which he was originally sentenced.

Week in Review (May 07, 2018)

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Week of:                      April 30, 2018
Publication Date:      May 07, 2018

Appellate Decisions – Summaries

From the First Appellate District –

  • The People v. Scott D. Flint; where the court of appeals remanded on the limited issue of permitting further argument before the trial court as to whether Mr. Flint, who was adjudicated to be a Sexually Violent Predator, had his equal protection rights violated when he was compelled to testify in the People’s case-in-chief because he is similarly situated to a person who was found not guilty by reason of insanity, and cannot be compelled to testify on that basis. In its analysis, the court of appeals considered that the record was insufficient to determine whether the case should be affirmed or denied under a similar case, People v. Curlee (2015) 237 Cal.App.4th 709, which was decided after the order compelling Mr. Flint to testify was entered.
  • In re Aaron J., a Person Coming Under the Juvenile Court Law [OR] The People v. Aaron J.; here, the court seeks to disentangle whether a minor who appears to fall under two applicable sections of the Welfare and Institutions Code should be treated as a dependent or as a ward. Ultimately, the court of appeals held that the trial court’s determination should be affirmed, as the trial court took the jurisdictional considerations under review, and made its decision based on the best interests of the child.
  • In re Juan R., a Person Coming Under the Juvenile Court Law [OR] The People v. Juan R.; the court of appeals upheld a probation terms that granted officer’s the ability to search Juan R.’s phone for social media, text, and other communications in an effort to monitor Juan’s activities for further acts of violence and for communications with his co-conspirators. Juan R. was originally placed under the wardship of the court following a crime where he chased down a man, C.C., stole his mobile phone and wallet, and violently attacked C.C. together with several co-conspirators.

From the Second Appellate District –

  • The People v. Jesus Pedro Garcia; where the court struck the trial court’s sentencing a prior punishment to run consecutive to the new judgment as improper. Garcia’s new, four year prison term for carjacking will effectively supersede his prior term where he was sentenced under the Postrelease Community Supervision program, which is a middle ground between parole and prison.
  • County Line Holdings, LLC v. Janice M. McClanahan; the court reversed the trial court’s judgment in favor of defendant on a statute of limitations defense under the probate code when the defendant dies before satisfying the judgment. The basis of the reversal is the difference between a cause of action to enforce a lien, which has a one-year statute of limitations after the death of a debtor, and the enforcement of a judgment for a lien that was previously adjudicated, which remains enforceable and given priority.
  • The People v. Joseph L. Billingsley; where the court affirmed Mr. Billingsley’s conviction on attempted murder, but remanded in order for the trial court to reconsider the gun enhancements under Senate Bill 620’s new criteria.
  • La Mirada Avenue Neighborhood Association of Hollywood et alterius v. City of Los Angeles et alterius [Real Party in Interest] Target Corporation; in a partially published case, the court of appeals affirmed the trial court’s order awarding attorney’s fees in favor of La Mirada Avenue Neighborhood Association under the statute that provides for such rights when the litigation results in a significant benefit to the public. Here, the Neighborhood Association successfully halted the construction of a development that violated Los Angeles zoning laws and when the City Council did not have a substantial basis for granting variances that would have permitted the project to proceed.  Nor is the issue of attorney’s fees moot in the underlying litigation when the zoning laws thereafter changed to allow the project.
  • In re D., a Person Coming Under the Juvenile Court Law [OR] Los Angeles County Department of Children and Family Services v. Angelina A.; two-year-old D.L. was removed from her father’s care for having a loaded gun left in the 2 year-old’s closet, and placed in the care of her mother with visitation rights granted to the father. The court of appeals affirmed the trial court’s order, but reversed the trial court’s finding that there existed an “ongoing risk” because any future danger posed by loaded firearms was “entirely speculative.”

From the Third Appellate District –

  • The People v. Antoine Lamar Blessett; which was certified for partial publication on Mr. Blessett’s appeals the basis of the confrontation clause, which the court determined was waived for failure to object during trial, and on ineffective assistance of counsel grounds, as the defense counsel’s failure to object to background hearsay was reasonable and the remaining hearsay evidence was introduced through an expert. The court nevertheless remanded for consideration of Senate Bill 620 on gun enhancements.
  • The People v. Brady Dee Douglas; Ms. Douglas was convicted of the attempted murder of Jeffrey B., who had short-changed Ms. Douglas’ boyfriend, a male prostitute. On appeal, Ms. Douglas contended that she was denied a fair trial when the prosecutor used his peremptory challenges on the only two openly-gay jurors.  The court of appeals agreed and held that whether or not the prosecutor had a permissible purpose to dismiss those jurors, the taint of invidious discrimination in juror selection renders the entire process substantively unfair.  It should also be noted that this case featured a dissenting opinion by Justice Hull, who argued that the majority erred, as the jurors at issue specifically stated that they were biased against the People’s victim, who had not openly acknowledged his sexual orientation.  Justice Hull argued that the “mixed motive approach strikes the proper balance between protecting a defendant’s constitutional rights, preserving the public’s confidence in the fairness of our system of justice, and recognizing the institutional interest in the finality of judgments.”

From the Fourth Appellate District –

  • The People v. Joseph Bocklett; where the court of appeals affirmed the jury verdict adjudicating Mr. Bocklett a Sexually Violent Predator, a mental disorder, based in part on the multiple instances of sexual violence committed on minor children between 1971 and 1994. Bocklett argued that the tolling provisions of the relevant statute constituted an ex post facto punishment for prior crimes where he had already served his time, but the court of appeals relied on Hubbart v. Superior Court (1999) 19 Cal.4th 1138, to determine that the Sexually Violent Predator statute does not constitute ex post facto punishment, as the purpose is to protect the public in the present rather than punish a person for past acts.
  • Rae Weiler v. Marcus & Millichap Real Estate Investment Services, Inc. et alterius; Ms. Weiler alleged that Marcus & Millichap lost more than $2 million in investment funds. The parties engaged in arbitration but after years litigating the issue Ms. Weiler could no longer afford to pursue the case in arbitration.  She therefore sought relief from arbitration, or an order requiring Marcus & Millichap to pay her share of the arbitration costs.  The trial court denied relief, but the court of appeals reversed and held that under Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, Ms. Weiler was entitled to a full hearing on her present ability to pay, and to relief if she could no longer pay.
  • The People v. Charles Wesley Brady; in a case related to assault with a deadly weapon, Mr. Bradley argues on appeal that the reasonableness of his self-defense should account for his medical conditions and past experiences that make it more likely for Mr. Bradley to misperceive a threat. The court of appeals, however, affirmed the conviction and stated that “Essentially, Brady argues that the relevant question is what a reasonable person with bipolar disorder, posttraumatic stress disorder, and his personal history would have done in the situation — i.e., what would a reasonable Brady do?  That, we think, is not the standard.”
  • Nielsen Contracting, Inc. et alterius v. Applied Underwriters, Inc. et alterius; the court of appeals affirmed the trial court’s denial of a motion to compel arbitration when the contract was unenforceable. Specifically, in an insurance contract for employer’s compensation, the insurance provider cannot enforce an arbitration agreement that was not filed with the regulatory agencies, as is what occurred here.
  • Marisa Hernandez v. Rancho Santiago Community College District; where the court of appeals affirmed judgement against Rancho Santiago Community College District for failing to provide reasonable accommodations for an injured employee when they fired her while on an approved leave of absence from her injuries. The Community College argued that because Ms. Hernandez was on a one year probation and the leave of absence would have allowed her to become a permanent employee without working for the requisite one year, they were justified in terminating her.  However, the trial court and the court of appeals found that this argument lacked merit, as the Community College could have taken any number of actions to accommodate Ms. Hernandez, not least of which would be extending the evaluation period for the time she was on leave.
  • Lisa Williams et alterius v. Moulton Niguel Water District et alterius; the court affirmed judgment in favor of the Water District when homeowners filed suit on the basis of an added chemical damaging their copper pipping. The court held that the chemical was added pursuant to all statutory and regulatory standards, and that the type of damage suffered by the plaintiffs did not fall within the ambit of eminent domain or inverse condemnation because plaintiffs voluntarily purchased water from the Water District and brought the public water into their private piping systems.

From the Fifth Appellate District –

  • Erik J. Hansen et alterius v. Sandridge Partners, L.P. et alterius; in a land dispute between adjacent farm owners, the court held that because the Hansen plaintiffs could not establish the elements of adverse possession because they had not paid taxes on the disputed land for the relevant period of time, they could not employ legal sophistry to gain such possession under the guise of a prescriptive easement when they sought to continue to use the disputed land as farmland until their crops, pistachio trees, died.
  • James Davis v. County of Fresno et alterius; the court of appeals reversed judgment against Mr. Davis, who is a correctional officer in the juvenile detention system that was dismissed from employment for insubordination, discourteous treatment of a subordinate, wrongfully assuming supervisorial duties over his wife despite several admonitions to the contrary, exaggerating the hours he worked on multiple time cards, and other misconduct. The court found that he was not granted a fair hearing because in the relevant hearing the administrative court considered evidence that was not provided to Mr. Davis, and thus Mr. Davis was denied the ability to contest the evidence ultimately relied upon.
  • Arnaudo Brothers, L. et alterius v. Agricultural Labor Relations Board [Real Party in Interest] United Farm Workers of America; where the court denied the Arnaudo Brother’s petition for a writ of administrative review, finding that the administrative board properly exercised its discretion in issuing relief to the United Farm Workers requiring that the Arnaudo Brothers provide information and engage in the interactive process with the union.

Finally, From the Sixth Appellate District –

We have no cases.

Supreme Court – Roundup

This Week, the Supreme Court published cases:

  • Dynamex Operations West, Inc. v. The Superior Court of Los Angeles County [Real Parties in Interest] Charles Lee et alterius; where the Supreme Court held that truck drivers who did not employ others and who only worked for Dynamex were properly employees of Dynamex when applying what is commonly known as the “ABC” test where to establish the existence of an independent contractor relationship the proponent of the relationship establishes “(A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under contract for the performance and such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.”
  • The People v. Juaquin Garcia Soto; on the issue of whether voluntary intoxication can create a defense to murder, the Supreme Court held that while a jury may consider voluntary intoxication when determining whether the defendant had the intent to cause death, it could not be used to determine whether the person believed he needed to act in self-defense.

In the Supreme Court’s Weekly Summary of Accepted Cases, the court has announced that no cases were accepted this week.

Week In Review (April 30, 2018)

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Week of:                      April 23, 2018
Publication Date:       April 30, 2018

From the First Appellate District –

  • The People v. Donicia Athena Espinoza; where the court of appeals summarily rejected Ms. Espinoza’s appeal of a specific probation condition placed on her following a plea of no contest to a felony count of cemetery vandalism. The court held that Ms. Espinoza was required to obtain a certificate of probable cause prior to filing an appeal, as she had specifically waived her right to appeal by pleading no contest.  As the court of appeal had no authority to hear the case, the merits of the appeal were not reached.
  • Eduardo Magana v. The Superior Court of San Mateo County [Real Party in Interest] The People; here, the court of appeals upheld the trial court’s removal of Mr. Magana’s defense attorney after finding that Defendant attorney’s continual delays were depriving Mr. Magana’s two alleged rape victims, the prosecution, and the defendant a speedy trial. The trial court had “no faith that [defendant’s attorney, Mr.] Everett would be prepared to take the case to trial on a timely basis” after four trial continuances, two peremptory challenges of trial judges, moving then withdrawing a motion for recusal of the second trial judge, and then failing to move for an appointment of an expert to testify to his client’s purportedly involuntary confession until the second day of trial.  A copy of this opinion will be forwarded to the State Bar of California.

From the Second Appellate District –

  • Martha L. Welborne v. Ryman-Carroll Foundation; where the court reversed entry of judgment against Ms. Welborne on a quasi-contract claim arising out of Ms. Welborne’s investment in the Ryman-Carroll Foundation when one of the members of the Board of Directors of the Foundation, a Mr. Foster, purportedly paid back a loan made to another company controlled by Mr. Foster using Ms. Wilborne’s and other’s investments. In its opinion, the court of appeals held that there was sufficient evidence that the Foundation was on notice of Mr. Foster’s acts such that the case cannot be summarily adjudicated.
  • Baker Marquart LLP v. James R. Kantor; where the court of appeals reversed and remanded with instructions the trial court’s confirmation of an arbitration award against Baker Marquart LLP. The issue addressed was whether Mr. Kantor’s submission of an undisclosed, confidential, arbitration brief to the arbitration panel which Baker Marquart was unable to respond, constituted the type of “corruption, fraud or other undue means” that justifies the vacation of an arbitration award.  The court of appeals held that the tactics used by Mr. Kantor ultimately prevented a fair adversarial hearing and gave Mr. Kantor an unfair advantage in the arbitration – such that the arbitration award must be vacated.
  • Integrated Lender Services, Inc. v. County of Los Angeles [as Appellant with] Juan Velazquez, as Trustee, et cetera, et alterius [as Respondent]; where the court of appeals affirmed the trial court’s determination that the County of Los Angeles could not properly assert the right to recover surplus funds from the sale of a convicted fraudster’s house. Although the County had filed a lis pendis, the trial court and the court of appeals held that this did not entitle the County to the funds ahead of other liens because the decision in the underlying fraud case did not order that the property be levied upon to satisfy the restitution award.

From the Third Appellate District –

  • The People v. Colleen Ann Harris; where the court denied Ms. Harris’ motion for recall and remittitur under Senate Bill 620’s new requirements for considering gun enhancements when Ms. Harris’ sentence was final more than one year before the provisions of the Senate Bill took effect, rendering relief unavailable.
  • Jerald Glaviano v. Sacramento City Unified School District; Mr. Glaviano was a school teacher who interceded in a fight between two students, which caused the School District to place him on unpaid leave pending an investigation. The investigation and administrative proceeding that followed vindicated Mr. Glaviano and the School District reinstated him and paid his lost wages.  Glaviano was also entitled to reasonable attorney’s fees for his expenses for defending the administrative proceeding.  The trial court held that the fees he was entitled to were limited to those he actually paid, but the court of appeals reversed and held that the reasonable attorney’s fees must be calculated using the lodestar method.

From the Fourth Appellate District –

  • IIG Wireless, Inc. v. John Yi [Both Appellants] with Defendant Lauren Kim [As Respondent]; where the court of appeal affirmed entry of judgement in the underlying case in a dispute between shareholders and owners of IIG Wireless. The Court held that there was substantial evidence to support the verdict of $401,860 in favor of IIG against Mr. Yi, $122,000 in favor of Mr. Yi against IIG, and nonsuit in favor of Ms. Kim.
  • Sadie M. Curry v. Equilon Enterprises, LLC; Equilon is a company that owns several hundred Shell gas stations and Ms. Curry was an employee of Equilon from 2001 to 2003 when Equilon changed its business model from one of direct ownership of gas stations to a leaseholder of the stations, operated by independent companies. Curry was hired by one of these independent companies, recruited as a manager, then promoted to a multi-store manager where she routinely worked in excess of 40 hours per week with no rest or meal-breaks.  Ms. Curry filed suit against Equilon for wage and hour causes of action, and both the trial court and the court of appeals held that the evidence presented in summary judgment could not support the allegations against Equilon, and that Ms. Curry could not establish any facts to support an inference that she was an employee of Equilon.
  • Estate of Norman Casserley, Deceased [OR] Theresa Hawkins, as administrator, et cetera v. Emerita Cruz Joya; where Ms. Joya argued that her lien following a 1997 judgment against the Decedent entitled her to priority over all other lienholders. The trial court and the appeals court held that because the lean was not recorded until June 2016, nearly one year after Decedent’s death, the lien was not entitled to priority.

From the Fifth Appellate District –

No published cases this week.

Finally, From the Sixth Appellate District –

  • Bruce Holloway v. Showcase Realty Agents, Inc. et alterius [Together with the Separate Case] Bruce Holloway v. Gregory Dildine et alterius; on appeal from a demurrer, the court of appeals held that a contract where the San Lorenzo Valley Water District acquired real property using an agent who was married to one of the members of the board of directors was void under the facts alleged in the complaint and that Mr. Holloway had standing as a taxpayer to bring the suit.
  • In re J.R., a Person Coming Under the Juvenile Court Law [OR] The People v. J.R.; this matter was transferred back to the court of appeals from the Supreme Court with instructions for the court of appeal to vacate and reconsider its opinion in light of People v. Page (2017) 3 Cal.5th 1175, which held that Proposition 47 included crimes related to attempting to unlawfully dive or take a vehicle without the owner’s consent, which comprised part of the underlying facts in J.R.’s criminal conviction. The court of appeal ultimately reversed the conviction and remanded for a new jurisdictional hearing in juvenile court in light of the new guidance from the Supreme Court.

Supreme Court – Roundup

A reminder that the California Supreme court will be hearing oral arguments this week on May 01, 2018.  You can catch the argument live online at the Court’s website.  This week’s oral arguments include:

  • S234969 – TROESTER v. STARBUCKS CORPORATION
  • S230899 – JAMESON v. DESTA
  • S235357 – LOPEZ v. SONY ELECTRONICS
  • S240918 – SAMARA v. MATAR
  • S141210 – ABELINO MANRIQUEZ ON H.C.
  • S057242 – PEOPLE v. CHRISTOPHER ALAN SPENCER

This Week, the Supreme Court published 4 cases, including:

  • Samuel Heckart v. A-1 Self Storage, Inc., et alterius; when Mr. Heckart rented a storage unit from A-1 that included optional insurance coverage that Mr. Heckart could elect to enroll in, or not, depending on whether he purchased his own outside insurance. When he did not purchase outside insurance he was automatically enrolled for $10 per month, and brought a suit based on the rental agreement not complying with the Insurance Code.  The Supreme Court ultimately held that because the primary purpose of the contract was not one of insurance, but of a rental agreement, and that insurance was incidental to the primary purpose of the agreement, A-1 did not need to comply with the Insurance Code regulations.
  • The People v. Lorenzo Chavez; here, the supreme court determined whether a trial court judge may expunge a criminal defendant’s record under the broader provision in Penal Code §1385, which grants such authority “in the furtherance of justice” or whether such expungement must occur under the provisions of Penal Code §1203.4, which allows for such expungement after probation is completed. On review the Court held that the trail court lacks jurisdiction to expunge a record under §1385 after the term of probation is completed, as the section only applies prior to a final judgment, which ends at the expiration of probation.
  • The People v. James Anthony Daveggio and Michelle Lyn Michaud; on an automatic death penalty appeal for their convictions on multiple instances of kidnapping, rape with special circumstances, and murder, the Supreme Court held that there were no errors sufficient to justify reversal. Accordingly, their convictions and sentencing to death were affirmed.
  • In re I.C., a Person Coming Under the Juvenile Court Law [OR] Alameda County Social Services Agency v. Alberto C.; where the Supreme Court reversed the trial court’s removal of 3-year-old I.C. based on out-of-court statements about alleged sexual abuse by her father made by I.C. that the trial court found to be unclear, confusing, not credible, and unreliable in significant respects. The Court ultimately reversed because the statements made by I.C. about the sexual abuse were “strikingly similar to descriptions” of a recent act of molestation by an 8-year-old neighbor whom I.C. had recently re-encountered at the time of her allegations against her father.  Given the inconsistencies and inaccuracies woven through her core allegations, the Court held that the statements were insufficient to justify I.C.’s removal.

In the Supreme Court’s Weekly Summary of Accepted Cases, the court has announced that 3 cases were accepted during the week of April 23, 2018, including:

  • People v. Ovieda; where the Supreme Court will determine if the superior court incorrectly applied the “community caretaking” exception to the Fourth Amendment as a basis for denying Defendant’s motion to suppress drug manufacturing equipment and an assault weapon after Police responded to an emergency phone call involving Defendant’s threats to commit suicide when the Police encountered him outside of his house, and then entered it without a warrant.
  • In re Webb; on a habeus corpus writ, the court will address whether the superior court has statutory or inherent authority to impose conditions of bail on felony defendants when the defendant posts bail at or above the amount specified in the superior court’s bail schedule.
  • People v. Acosta; will address whether the trial court can impose an “electronics search condition” on a minor as a condition of his probation when it had no relationship to the crimes he committed but was justified on appeal as reasonably related to future criminality under because it would facilitate his supervision?