Week In Review (April 23, 2018)

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Week of:                      April 16, 2018
Publication Date:       April 23, 2018

Appellate Decisions – Summaries

From the First Appellate District –

  • Is In re W.R., a Person Coming Under the Juvenile Court Law [OR] The People v. W.R.; this case is one that was returned from the California Supreme Court on an issue of the seal of records of W.R. for reconsideration upon the implementation of Assembly Bill 529. The new bill clarified the requirements for sealing certain records for juveniles, and would require all the records pertaining to a minor’s petitions before the court to be sealed.  On that basis, the court’s determination was that all of W.R.’s records should be sealed, changing its prior position of allowing some records to be sealed and not others.
  • Is Bernadette Tanguilig v. Neiman Marcus Group, Inc.; where the court of appeals affirmed the trial court’s dismissal of Ms. Tanguilig’s employment lawsuit under the 5-year dismissal statute. Tanguilig argued that the 5 years should be equitably tolled due to the trial court judge arbitration order, which delayed her ability to pursue trial for a period of almost a year, and two other time periods that the court deemed waived.  Ultimately the court ruled that the delays were both predictable and invited by Ms. Tanguilig in her efforts to certify a class, and pursue a more complex set of remedies.  By inviting the delays, the court held, she could not then use them to toll the time to bring the case to trial.
  • Is The People v. Alpacino McDaniels; where the court of appeals affirmed the trial court’s entry of judgment on Mr. McDaniels’ conviction for the murder of Teric Traylor through the use of a gun. The court nevertheless remanded the case to the trial court for further findings as to the gun enhancement pursuant to Senate Bill 620.
  • Is The People v. Investco Management & Development LLC et alterius; where the court of appeals affirmed the award of attorney’s fees against both Investco and The People following the settlement of securities fraud charges. Respondents were the unnamed victims of the securities fraud perpetrated by Investco, and they were determined by both the trial court and the appeals court to have successfully enforced an important right affecting the public at large, provided necessary, non-duplicative, and significant benefits to the victims, and incurred litigation expenses out of proportion to their personal interests when they successfully opposed a motion that would have stayed all individual actions by them and other defrauded investors against these defendants.
  • Is Tikisha Marie Upshaw v. The Superior Court of Alameda County [Real Parties in Interest] The People et alterius; in a case of first impression regarding the interpretation of Penal Code 4007, the court of appeals held that when a prisoner provides sufficient evidence that her conditions are unsafe for her confinement, they may petition to transfer to a jail in a contiguous county. However, such relief is not available to Ms. Upshaw in her specific circumstances because she failed to exhaust her administrative remedies prior to filing her motion to transfer with the trial court.
  • Is In re R.M., a Person Coming Under the Juvenile Court Law [OR[ The People v. R.M.; where the court held that because truancy is not a criminal offense, 17 year old R.M. did not obstruct a peace officer in performing his or her duties when an officer ordered her to class and then arrested her when she did not comply. Because ordering a student to class does not constitute “performing a legal duty” the arrest and subsequent charge was improper, and the court of appeals therefore reversed the conviction.  The court of appeals specifically parsed the duty of an officer engaged in truancy activities to deliver a student to a school, from one of ensuring her attendance in class; noting that the officer’s legal duties ends at the point of delivery.
  • Is David Fischer v. Joannie Fischer; where the court of appeals affirmed the trial court’s denial of a domestic violence restraining order against Joannie Fischer, when she slapped, scratched, grappled, and shoved David Fischer when he received a call from his mistress during a period of time where they were attempting reconciliation. After a trial on the issues where numerous witnesses and evidence was presented, the trial court determined, and the appeals court affirmed, that the violence at issue was a singular event and did not justify the imposition of a restraining order.

From the Second Appellate District –

  • Is Robert Riske v. The Superior Court of Los Angeles County [Real Party in Interest] City of Los Angeles; this case arises out of Mr. Riske, a retired police officer, allegedly being passed over for promotion or good assignments due to reporting and testifying against fellow officers who had falsified reports. The issue here relates to the ability of Mr. Riske to discovery private personnel records of the individuals considered for, and promoted, ahead of Mr. Riske.  The relevant code section generally prevents the release of information for more than five years past the relevant conduct, and here both Riske and the City agreed that the relevant dates were the dated of the promotional decisions, but Riske also argued that the 5 year bar did not apply to any investigations of citizen complaints nor to certain other information not expressly defined in the relevant code section.  The court of appeals agreed with Mr. Riske, and issued a peremptory writ.
  • Is Andrew Castillo et alterius v. Glenair, Inc.; where a wage and hour dispute was brought first against a contractor agency on behalf of a class of employees for failing to pay the minimum wage or overtime, and for meal and rest hour violations. The parties settled that class action, and a second action was filed against the client company that used the contractor.  Because the contractor and the company stood in privity with each other, the court held that the global settlement of wage and hour claims were unavailable for the plaintiffs to pursue for a second time.  Entry of judgment against the plaintiffs was therefore affirmed.
  • Is All Green Electric, Inc. v. Security National Insurance Company; where the court of appeals affirmed judgment in favor of Security National Insurance Company, where All Green Electric requested that Security National defend and indemnify it in another action where All Green is a defendant. The courts both agreed that the contract between the two parties has an exclusion of coverage for liability arising out of All Green’s own work, and that in the underlying action against All Green the plaintiff there is alleging that All Green caused a hospital to buy unnecessary services because All Green’s failure to tighten a screw during the installation of a medical device caused a strong electromagnetic field that interfered with other equipment and caused the underlying plaintiff to purchase and install unnecessary shielding.
  • Is Achikam Shapira v. Lifetech Resources; in an employment lawsuit that went to a bench trial, Mr. Shapira moved to dismiss the entire action with prejudice Code of Civ. Proc. §581(e), which permits such dismissals during trial. The trial court denied the dismissal and ordered that the parties complete the bench trial by submitting closing briefs, ultimately finding in favor of Lifetech and awarding contractual attorney’s fees.  Shapira appealed, and the appellate court agreed with Mr. Shapira that he had a right to dismiss the case with prejudice prior to closing arguments, as that case had not yet been submitted to the court.
  • Is County of Los Angeles v. Los Angeles County Civil Service Commission [Real Party in Interest] Carlos Arellano; where the court of appeals upheld the five-day suspension of Mr. Arellano, a Sheriff’s deputy. The court noted that although there was wiretap evidence of Mr. Arellano colluding with narcotics dealers in the cultivation of marijuana, the evidence was properly suppressed at Mr. Arellano’s administrative hearing when the court order permitting the Sheriff’s Department to use the recordings in an internal investigation did not permit their use in a more public venue such as an administrative hearing.
  • Is Joyce Lederer et alterius v. Gursey Schnieder et alterius; where the court of appeals reversed and remanded with instructions the trial court’s entry of judgment in favor of the defendant on a statute of limitations defense. Here, the court reasoned that the circumstances in this case were one of the unusual cases where discovery of a fraudulent act does not trigger the statute of limitations.  Here, Ms. Lederer hired the Gursey Schnieder accounting firm to purchase a $5 million insurance policy, but only purchased one for $1.5 million; after an accident that triggered a full policy payout, the plaintiffs discovered the deceit.  Despite having knowledge that the policy was improperly obtained, they properly argued to the court of appeals that they did not suffer any damages until the lower policy limits were actually paid, making the timing of this action fall within the statute of limitations.  The reason why the policy did not trigger right away was because there was a legal issue regarding whether or not the driver that ultimately caused the accident triggering the policy was acting within the scope of employment or whether he was an uninsured motorist.  It was only after that issue was determined and the policy paid out that plaintiffs’ cause of action accrued against the Gursey defendants.
  • Is Laine Hedwall v. PCMV. LLC et alterius; while the underlying dispute regards the purportedly deteriorating conditions of a golf course and the non-payment of country club fees, the issue on appeal is one of first impression for the court in addressing whether the right to file one amended complaint as a matter of right is restricted just to an original complaint or whether it may be done once on any pleading, including amended pleadings. Here, the court relied on statutory interpretation to determine that the legislature only intended this right to accrue to the original complaint, and thus the trial court did not err in striking a Second Amended Cross-Complaint as improperly filed when it was filed without leave of court and without stipulation of the parties.
  • Is Joel D. Kettler v. Leslie Gould et alterius; where the court of appeals affirmed the trial court’s partial denial of the Gould defendants’ Anti-SLAPP motion. The issue was whether the cause of action based on complaints to the Certified Financial Planners Board of Standards could be maintained, and both courts determined that because the Board was not a public agency and that there was no public interest issue in those complaints.  The courts held that because the complaint to the Board was not made in a public manner, and because the complaint alleged only issues that were relevant to the Goulds, there was not a public interest implicated sufficient for the Anti-SLAPP statute.

From the Fourth Appellate District –

  • Is Robert O. Powell v. Bear Valley Community Hospital; where the court of appeals affirmed the trial court’s denial of Mr. Powell’s petition for a writ of mandate to void the Hospital Board of Director’s termination and for reinstatement of his staff medical privileges. This case has its roots in 2001 and Mr. Powell’s conduct in a Texas hospital, where he was alleged to have made misrepresentations to a young patients’ parents by failing to disclose that he had severed the child’s vas deferens during a hernia procedure, and then telling other hospital staff he had made the disclosures.  This case followed him to The Bear Valley Community Hospital, when he made further misrepresentations as to the reasons for leaving the Texas hospital, characterizing them as a hostile environment, and a disagreement over medical techniques.  When Bear Valley discovered the mismatch, it ultimately chose to deny him full privileges at the hospital, which Mr. Powell appealed, and both the trial court and court of appeals upheld as being within the Board’s discretion.
  • Is The People v. Patrick Lowell Jackson; where the court of appeals reversed Mr. Jackson’s sentence upon a guilty plea, finding that the trial court’s finding that Mr. Jackson was competent to stand trial or enter a plea was not based on substantial evidence, and that Mr. Jackson’s “stable developmental disability” rendered him incapable of understanding the charge against him for one count of lewd contact with a minor, and incapable of understanding the significance of a guilty plea.
  • Is The People v. Misha Yvanne Sanders; where Ms. Sanders filed a petition under Proposition 47 to reclassify her convictions for burglary and identify theft as misdemeanors and re-sentence her in light of the re-classifications. The trial court and the court of appeals agreed that the burglaries constituted ‘shoplifting’ under the new statutory schema, but that identity theft did not constitute ‘petty theft’ because identity ‘theft’ is not a crime of theft but of false personation, and is intended to protect the victim from the misuse of his or her identity.
  • Is The People v. Salvador Oswaldo Chavez et alterius; where the court of appeals substantively modified its March 28, 2018, statement of decision, and now disposes of the case by vacating and remanding Mr. Gonzalez’s sentence for limited re-sentencing, but otherwise affirming the judgments.

From the Fifth Appellate District –

  • Is Monsanto Company [With Interveners] California Citrus Mutual et alterius v. Office of Environmental Health Hazard Assessment et alterius [With Interveners] Center for Food Safety et alterius; where the court of appeals upheld the provision in Proposition 65 that specified that the International Agency for Research on Cancer’s list of carcinogens would be the list used within the State of California. The plaintiffs, lead by the Monsanto Company, argued that it was an unconstitutional delegation of rule-making authority for an un-elected, unaccountable, foreign agency to determine what chemicals are known to the state to cause cancer.  Ultimately the court held that the language in Proposition 65 is disjunctive, and does not remove rule-making authority from the state, it merely supplements any state-determined carcinogens with those identified by the International Agency.  Moreover, it has procedural mechanisms sufficient for any person to challenge the determinations of any particular carcinogen, and remove it from the list of chemicals subject to enforcement.

From the Sixth Appellate District –

  • Is The Police Retirement System of St. Luis et alterius v. Larry Page et alterius; in a shareholder lawsuit against Google alleging that Google improperly harmed the value of its shares by agreeing with other companies to refrain from ‘poaching’ top talent from other technology companies. The court of appeal held that because the actions giving rise to the alleged harmful activities were known or should have been known by no later than in mid-2011, when Google posted a statement following a settlement with the United States Department of Justice describing both the activities and the settlement agreement.  Because this case was not filed until 2014, it was barred by the 3-year statute of limitations.

Supreme Court – Roundup

This Week, the Supreme Court published no cases.

In the Supreme Court’s Weekly Summary of Accepted Cases, the court has announced that three cases were accepted during the week of April 16, 2018, including:

  • California School Boards Assn. v. State of California; where the court will look to address whether the State violates article 13B, Section 6, of the California Constitution when it identifies general education funding to school districts as ‘offsetting revenue’ for the purposes of reimbursing state mandates, and whether the State violates the separation of powers when it allows both general and special education funding to be identified as offsetting revenues for state-mandated programs.
  • People v. Lynch; will look to answer whether imposing an “electronic search condition” on a minor as a condition of his parole is reasonable when such condition has no relationship to the crime he committed but is justified as being reasonably related to future criminality.
  • People v. Walters; will look to address whether it is proper to impose a criminal laboratory analysis fee and a drug program fee based on a defendant’s conviction for conspiracy to commit certain drug offenses.

Week in Review (April 16, 2018)

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Week of:                      April 09, 2018
Publication Date:      April 16, 2018

Appellate Decisions

From the First Appellate District –

  • Is The People v. Mario Arturo Barboza; where the court of appeals refused to reverse and remand his sentencing in light of Proposition 57 because, although he was a minor and charges were not filed before a juvenile court, Mr. Barboza’s verdict was final at the passage of Proposition 57, and so he does not benefit from its provisions.
  • In re Carlos J., a Person Coming Under the Juvenile Court Law [OR] The People v. Carlos J.; the court of appeals reversed and remanded Carlos J.’s commitment to the Department of Juvenile Facilities due to the trial court failing to include specific information regarding how the programs at the Department will benefit Carlos J., and how less restrictive alternatives to the reformatory educational discipline of the Department are ineffective or inappropriate.
  • Is The People v. Gabriel Elena Lopez; where the court of appeals reversed entry of judgment on the grounds that Mr. Lopez was denied his right to counsel of choice under People v. Ortiz (1990) 51 Cal. 3d 975, and his plea of no contest to two counts of lewd acts upon a child under 14 years old, one count of rape, and admission of the special allegation of offenses against more than one victim could not be upheld.
  • Is Willard Birts, Jr. v. The Superior Court of Mateo County [Real Party in Interest] The People; where the appellate court reversed the disqualification of the trial court judge. The court held that when the district attorney dismissed the first action against Mr. Birts, and then refiled substantively the same action against Mr. Birts the next day, the DA was improperly attempting to avoid the effect of the trial judge’s orders in the dismissed case.  Since the new case was therefore merely a continuation of the first, the motion to disqualify the trial court judge was untimely.
  • Is Small Property Owners of San Francisco Institute v. City and County of San Francisco et alterius; where, in the published portion of the opinion, the court of appeals held that an ordinance prohibiting a property owner from modifying their property for 10 years after evicting tenants under the Ellis Act, which allows for such evictions when a property owner is leaving the rental industry, was preempted by the Act. The court of appeals therefore reversed judgment in favor of the defendant city and county and ordered the trial court to enter an order enjoining the city from enforcing the ordinance.
  • Is City and County of San Francisco et alterius v. Chuck M. Post et alterius; where the appellate court affirmed San Francisco’s ordinance prohibiting discrimination based on a tenant’s use of Section 8 housing funds. The issue presented was whether California Fair Employment and Housing Act preempted the ordinance, as the Act expressly does not provide protections for Section 8 recipients.  The court held that the provision in the Act where the legislature expressed its intent to occupy the field of housing discrimination nevertheless permitted because the legislature did not intend to address the issue of whether a landlord could turn down section 8 housing in the first place.
  • Is Paula J. Novak v. Continental Tire North America et alterius; where the court of appeals affirmed the trial court’s entry of judgment in favor of Continental Tire on a products liability cause of action based on an alleged failure to warn about the dangers of tire degradation in old tires. The Court found that there was no causal link between the 2005 accident involving Continental Tires’ product that left decedent partially disabled, and a completely different car accident in 2011 that caused decedent’s death when decedent was using a mobility scooter to cross a road.
  • Is Rodeo Citizens Association v. County of Contra Costa et alterius [Real Party in Interest] Phillips 66 Company; where, despite succeeding on a peremptory writ of mandate setting aside an existing Environmental Impact Report on an oil refinery project defended by Contra Costa and Phillips 66, the Rodeo Citizens Association nevertheless appealed on the grounds that the trial court failed to adopt their additional arguments that the proposed project violated the California Environmental Quality Act as a matter of law. The appeals court found no basis to disturb the trial court’s conclusions and affirmed the existing peremptory writ.

From the Second Appellate District –

  • Is The People v. Christian Almanza; where, after receiving an order by the California Supreme Court to vacate and reconsider Mr. Almanza’s sentence in light of Senate Bill No. 620 regarding firearm enhancements, the court of appeals once again affirmed the decision, and refused to remand to the trial court. It determined that remand would be an idle act because there is no reasonable probability that the trial court would exercise its discretion in favor of Mr. Almanza in his third strike offense for premeditated murder accruing to the benefit of his street gang.
  • Is Matthew Squire et alterius v. County of Los Angeles et alterius; which relates to grievances filed against two Sheriff’s officers for failing to report inappropriate dress or reports of an inappropriate relationship between a subordinate and a supervisor respectively. Both went through the formal grievance process, and both succeeded to the extent that the Sheriff’s department recognized that they filed the grievances under the wrong disciplinary section.  The department modified and re-issued the grievances and the officers appealed on the actions being time barred.  They sought a writ of mandate from the trial court, which determined that the new grievances were timely re-issued, and the court of appeals affirmed.
  • Is Maryam Day et alterius v. Lupo Vine Street, L.P. et alterius; where the court of appeal affirmed entry of judgment in favor of defendant landlord. The court determined that a commercial landlord had no duty to acquire and maintain an Automated External Defibrillator, when a tenant boxing club is required to maintain such a device under the Health and Safety Code but fails to do so.
  • Is Gordon B. v. Sergio Alberto Gomez; where the court of appeals reversed the trial court and remanded for further hearings on the issuance of Gordon B.’s request for a renewed restraining order under the Health and Safety Code provisions permitting a temporary restraining order for elder or dependent adult abuse. The appeals court reasoned that the trial court used the wrong standard by requiring evidence of further abuse when the standard only requires the showing of a reasonable apprehension of further abuse.
  • Is The People v. Bobby Watts; where the court of appeals partially affirmed and partially reversed and remanded to the trial court on the issue of Mr. Watt’s motion for a new trial. The appellate court held that the trial court used the wrong legal standard when considering the gang enhancement allegation, and the case needed to be remanded for the gun enhancement, but otherwise affirmed on the conviction for murder.
  • Is Pasadena Police Officers Association et alterius v. City of Pasadena [With Intervener] Los Angeles Times Communications, LLC; where the court upwardly modified the award of attorney’s fees to intervener Los Angeles Times on the basis of a California Public Records Act request for the release of a 70-page report regarding the shooting death by police of Mr. Kendrec McDade. The court held that the Times was entitled to additional monies under the Private Attorneys General Act, as they vindicated an important public right, and the Police Officers Association was acting to expand the institutional protections to police in the public disclosure of their records.
  • Is County of Los Angeles v. Los Angeles County Civil Service Commission [Real Party in Interest] Gregory Merritt; beginning by calling Mr. Merritt’s appeal of the trial court’s remand to the Civil Service Commission a “Purported Appeal”, the court dismissed the appeal as improper because there existed no final judgment. The court held that because the trial court remanded the case for further findings of fact regarding Mr. Merritt’s alleged negligent supervision of social workers responsible for closing the child abuse case of Gabriel Fernandez, and expressly provided Mr. Merritt the opportunity to challenge any new findings, the judgment could not be considered final, and thus could not be appealed.

From the Third Appellate District –

  • Is The People v. Jesse Cody Tom; where the court of appeals primarily affirmed the conviction of Mr. Tom on charges of animal cruelty, resisting arrest, and arson when he beat his girlfriend’s parent’s dog to death, covered it in oil, and place it inside a barbecue, and then fled from police upon their arrival. The court reversed one of the charges of animal cruelty, however, because the code sections relied on for the convictions do not permit the same act to stand for both criminal charges of “needless suffering” and “intentional killing” of a dog.

From the Fourth Appellate District –

  • Is In re S.K., a Person Coming Under the Juvenile Court Law [OR] Riverside County Department of Public Social Services v. R.B.; where the court of appeals affirmed the trial court’s order removing S.K. from mother R.B. when S.K. was born with methamphetamine in his system, mother R.B. absconded with S.K., and S.K. was later hospitalized with toxic levels of oxycodone in his system.
  • Is The People v. Jose Luis Perez et alterius; where the court of appeals affirmed in part and reversed in part the convictions of Mr. Perez and other co-defendants based on the murder and attempted murder of a rival cell of the Sinaloa Drug Cartel. In the published portion of the opinion, the court refused to reverse on the basis of the expert testimony regarding the Sinaloa Drug Cartel, as defendants did not object during trial and the testimony offered was not case-specific testimony prohibited under People v. Sanchez (2016) 63 Cal.4th 665.

From the Fifth Appellate District –

  • Is The People v. Turlock Hernan Diaz et alterius; where the court of appeals substantively modified their March 20, 2018, decision, and is now remanding co-defendant Daniel Pantoja back to the trial court for the limited purpose of allowing him to make a record of information relevant to his eventual youth offender parole hearing, the determination otherwise remains affirmed.
  • Is Arthur Ochoa v. County of Kern et alterius; where the court of appeals affirmed entry of judgment against Mr. Ochoa on his wrongful termination claim against the Kern County Sheriff’s Office. In the published portion of the opinion, however, the Court agreed with Mr. Ochoa’s interpretation of the Public Safety Officers Procedural Bill of Rights, in that the requirement for investigations to be completed within one year of discovery acts as a time bar for termination.  The ruling was then affirmed on the specific facts of this case.

Finally, From the Sixth Appellate District –

  • Is The People v. Francisco Javier Maldonado; where the court of appeals affirmed Mr. Maldonado’s terms of probation for a possession of methamphetamine charge. Maldonado specifically challenged the term that would allow a peace officer access to Mr. Maldonado’s electronic devices; the court held that the terms of probation were narrowly tailored to allow peace officers to access specific categories of information used for communication in order to achieve the constitutionally permissible purpose of monitoring whether Mr. Maldonado was procuring illicit drugs.

Supreme Court Roundup

This Week, the Supreme Court published no cases, other than a modification to a prior decision in People v. Contreras, which did not substantively change the opinion.

In the Supreme Court’s Weekly Summary of Accepted Cases, the court has announced that nine cases were accepted during the week of April 09, 2018, including:

  • People v. Fontenot; where the Court will seek to address the issue of whether attempted kidnapping is a lesser included offense to the crime of succeeding at kidnapping.
  • People v. Boatwright; People v. Cavalier; People v. Little; and People v. Lopez; are all described by the High Court as being accepted for a petition for review after affirmations from the various courts of appeal of the defendants’ respective convictions.
  • People v. Burrell; will look to address yet another Proposition 57 issue regarding whether a defendant is eligible for re-sentencing on a penalty enhancement for serving a prior prison term on a felony conviction when the superior court reclassified the underlying felony as a misdemeanor.
  • People v. Torres; on appeal from the Santa Clara County Superior Court will look at the difference between the crimes of misdemeanor receipt of stolen property and felony receipt of stolen property.
  • Finally, the Supreme Court will agreed to hear arguments on another People v. Torres; on appeal from the El Dorado County Superior Court, where the Court will look at whether a trial court may impose a criminal laboratory fee analysis and drug program fee based on a defendant’s conviction for conspiracy to commit certain drug offenses.

California Supreme Court-Cast (April 11, 2018)

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Month of:                    March, 2018
Publication Date:      April 11, 2018

The California Supreme Court published a total of nine cases last month:

2 automatic death penalty appeals,

  • Filed on March 1, 2018, The People v. Joseph Andrew Perez, Jr.; in an automatic death penalty appeal, the court affirmed the lower court’s conviction of Mr. Perez, who had been found guilty of the murder of Janet Daher in a home invasion robbery when Mr. Perez and two of his friends arbitrarily chose to rob Ms. Daher’s home because her garage door was open and then murdered her because she had heard one of the co-robber’s say another’s name.
  • Filed on March 5, 2018, The People v. Todd Jesse Garton; was an automatic death penalty appeal, the sentence of which was affirmed by the Supreme Court for Mr. Garton’s murder of his wife and unborn child with special circumstances.  The conviction for conspiracy to murder his co-defendant’s husband, however, was reversed on the grounds that the trial court erred in instructing the jury on the elements required for a conviction on conspiracy.

1 case related to hours and wage calculation,

  • Filed on March 5, 2018, Hector Alvarado v. Dart Container Corporation of California; where the Supreme Court ruled that an employee’s overtime pay rate, when there is a flat sum bonus during a single pay period, should be calculated by dividing the pay by the number of nonovertime hours the employee worked during the pay period.

1 certified question from the 9th Circuit Court of Appeals,

  • Filed on March 5, 2018, Heller Ehrman LLP v. Davis Wright Tremaine LLP and Related Cases; addressed a question posed by the Ninth Circuit Court of Appeals, asking for the Supreme Court’s opinion on the dissolution of law partnerships.  Specifically, the Court held that when a law partnership dissolves, the partnership does not have a property interest in the former partners’ work on hourly fee matters pending at the time of the firm’s dissolution.

1 writ of habeaus corpus,

  • Filed on March 12, 2018, In re Vincente Benavides Figueroa; in a habeus corpus petition for a conviction and death sentence previously confirmed by the Court for the rape and murder of Consuelo Verdugo in 1991, the Court vacated the judgment in its entirety on the basis of the State’s concession that that false evidence was introduced at trial regarding the alleged rape.  While the State argued for a reduction from First Degree Murder to Second Degree Murder, the court considered such a reduction to require it to posit a radically different trial than the one that petitioner received, and was therefore required to vacate the judgment.

2 cases related to procedural questions arising from Proposition 47,

  • Filed on March 12, 2018, The People v. Veronica Lorraine DeHoyos et alterius; in this case the court addressed a procedural issue related to Proposition 47, determining that defendants who were serving felony sentences on the measure’s effective date but whose judgments were on appeal and thus not yet final are required to follow the statutory resentencing procedures, including the risk assessment, prescribed by Penal Code Section 1170.18.
  • Filed on March 29, 2018; The People v. Mario Martinez; in another case involving interaction of Proposition 47 with current law, the Supreme Court held that the court of appeals incorrectly held that the resentencing provisions of Proposition 47 necessarily do not apply to the transportation of drugs, as resentencing eligibility is not contingent on having been convicted under an enumerated statute.  The Court nevertheless upheld the lower court’s denial of resentencing on the reasoning that Mr. Martinez would still have been guilty of a felony even if the provisions of Proposition 47 were in effect when the 2007 crime was committed because the Proposition only dealt with crimes of possession – here, Mr. Martinez’s crime was one of transportation, not possession.

1 appeal on a civil negligence action, and

  • Filed on March 22, 2018; The Regents of the University of California et alterius v. The Superior Court of Los Angeles County [Real Party in Interest] Katherine Rosen; where the Supreme Court reversed the court of appeals’ finding that UCLA had no duty to protect a student from another student.  The Supreme Court determined that when the school is on notice of foreseeable violence during curricular activities, then it owes a duty to protect to protect its students.  However, the court remanded the case for further proceedings on whether judgment should nevertheless be entered in favor of UCLA on the grounds of whether it breached this duty, or whether it is immune from liability on other grounds.

1 case related to a procedural question under the special motion to strike statute.

  • Filed on March 22, 2018; Newport Harbor Ventures, LLC et alterius v. Morris Cerullo World Evangelism et alterius; where the Supreme Court held that because Anti-SLAPP is designed to resolve unmeritorious suits early, hearing a special motion to strike after the 60-day statutory deadline may be denied within the discretion of the trial court.

Week in Review (April 09, 2018)

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Week of:                        April 02, 2018
Publication Date:        April 09, 2018

Appellate Decisions – Summaries

From the First Appellate District –

  • In re M.H., a Person Coming Under the Juvenile Court Law [OR] Alameda County Social Services Agency v. T.H. et alterius [AND] E.W., objector and appellant; where the court of appeal affirmed the trial court’s order that one-year-old M.H. remain with his current non-relative foster home in Minnesota rather than be placed with his maternal great aunt in California. The Court considered that neither the statutory preference for relative placement nor the statutory preference for caretaker placement were applicable here when a great aunt is not a ‘relative’ under the code and the caretaker is not on a permanency plan.  Rather, it upheld the court’s determination that the Minnesota placement was in the best interests of the child under the abuse of discretion standard.

From the Second Appellate District –

  • Efigenia Garcia v. Mercedes-Benz USA, LLC; where the appeals court modified and affirmed the entry of judgment on an issue of attorney’s fees. The Court held that a consumer is not entitled to attorney’s fees under the Song-Beverly Consumer Warranty Act when the parties entered into a confidential agreement, and the sole issue was whether Mercedes-Benz was required to pay for dealer add-ons after already agreeing to fully replace a car whose engine failed entirely after one month of use.

From the Third Appellate District –

  • The People v. Roosevelt Beatty; where, in the published portion of the case, the appeals court affirmed the Yolo County superior judge’s jurisdiction over defendant’s transportation and sale of methamphetamine case, because, although most of the criminal acts took place in Sacramento County, a judge’s determination of venue will be upheld as long as there is some evidence that venue was proper – here, the evidence included calls placed from Yolo County and the use of a drug supplier in Yolo County.

Supreme Court – Roundup

This Week, the Supreme Court published 2 cases:

  • The People v. Mark Buza; the California high court upheld the misdemeanor conviction of Mr. Buza for failing to provide a DNA swab under the 2004 California Proposition 69, which requires DNA collection for all persons arrested on a felony. The Supreme Court held that both the U.S. and California constitutions permit DNA collection for arrestees on felony charges.
  • In re Roy Butler; the court held that the Court of Appeals erred in upholding the use of ‘base terms’ in a compensation calculation in a 2013 settlement agreement derivative of Mr. Butler’s indeterminate life sentence. Butler was released on parole in 2014, but when the statutory scheme of the California Code excised the use of ‘base terms’ this change materially affected the terms of the settlement agreement and requires the lower court to relieve Mr. Butler of his obligations to calculate ‘base terms’ in the agreement.

In the Supreme Court’s Weekly Summary of Accepted Cases, the court has announced that no cases were accepted during the week of April 02, 2018.

 

Week in Review (April 02, 2018)

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Week of:                        March 26, 2018

Publication Date:        April 02, 2018

Appellate Decisions – Summaries

From the First Appellate District –

  • Is Raad Al-Shaikh v. State Department of Health Care Services; where the court of appeals ordered that Mr. Al-Shaikh be awarded $7,500 in attorneys’ fees and costs upon prevailing against the California Department of Health Care Services. In making its determination based on the Department’s ignorance of federal law, the court held that the Department “has an obligation to be knowledgeable about the law it is charged with implementing.”  And was therefore acting without substantial justification in refusing to issue a Medi-Cal provider permit to Mr. Al-Shaikh in a new office location.
  • Is City and County of San Francisco et alterius v. Homeaway.com, Inc.; where the court of appeals affirmed San Francisco’s right to enforce an administrative subpoena for Homeaway.com’s rental transaction information, for tax collection purposes.
  • Is New Cingular Wireless PCS, LLC et alterius v. Public Utilities Commission [Real Party in Interest] The Utility Reform Network et alterius; where the court of appeals granted AT&T’s petition to restrict the award of the Utility Reform Network and others who intervened in a administrative proceeding that resulted in new rules. The Court held that even if the interveners are entitled to compensation, such compensation is limited to reasonable costs incurred in preparing or presenting the contention or recommendation that was adopted – not every penny requested.
  • Is J. v. The Superior Court [Real Party in Interest] San Francisco Human Services Agency; where the court of appeals granted mother T.J.’s writ when the court determined that the trial court prematurely terminated reunification services for 3 minor children when T.J. is intellectually disabled, was wait-listed for numerous therapeutic services that were required components of her case plan, and was provided no assistance with support services, anger management, or housing.
  • Is The People v. Nanette Sheree Dillard et alterius; where the court of appeals reversed two of Ms. Dillard and Mr. Daniels’ convictions related to theft and larceny of public monies under the federal preemption doctrine of obstacle preemption. The court held that permitting state criminal prosecutions based on representations made to the Federal Health and Human Services Agency would stand as an obstacle to the work of that federal agency.  The remaining convictions were affirmed and the case was remanded for re-sentencing.

From the Second Appellate District –

  • Is Simona Wilson v. Southern California Edison Company; where the appeals court remanded this case back to the trial court for a third trial after a second multi-million dollar verdict, when the court determined that the trial court erred by admitting evidence that was irrelevant to Ms. Wilson’s claim that Edison caused her to lose her house next to a power substation due to stray voltage incidents, the admitted evidence was deemed prejudicial to Edison’s defense.
  • In Walt Disney Parks and Resorts U.S., Inc. v. The Superior Court of Los Angeles County [Real Party in Interest] Johnny Galvan et alterius; the court of appeals granted a writ of mandate directing the trial court to consider Walt Disney Parks motion to transfer venue, which the trial court denied as time-barred. The court of appeals held that the facts did not support a finding that Disney waived its right as a matter of law when the matter had been removed to Federal Court and then remanded back to trial court.
  • Is In re the Marriage of Sandra and Leon E. Swain [OR] Sandra Swain v. Leon E. Swain; where the court of appeals reversed the trial court’s determination of spousal support. Specifically, the appeals court held that the trial court should not have relied on a declaration made by Ms. Swain of which Mr. Swain did not have the opportunity to cross-examine Ms. Swain about, and there was no other evidence regarding Ms. Swain’s need for spousal support.
  • Is Olivia de Havilland v. FX Networks, LLC et alterius; beginning with the tautological observation that “Filmmakers make films” the appeals court reversed the trial court allowing Ms. Havilland’s suit to go forward, and held that the Anti-SLAPP motion filed by FX Networks should have been granted. The court’s analysis concluded that individuals do not have an ownership interest in their own histories nor a right to be compensated for their stories, as “the First Amendment simply does not require such acquisition agreements.”
  • In Robert S. Greenfield et alterius v. Mandalay Shores Community Association; the court of appeals reversed the trial court, and ordered that a preliminary injunction should issue preventing the Community Association from levying fines against Mr. Greenfield based on the Community Association’s 2016 ban on Short-Term Rentals. The court held that the ban on Short-Term Rentals constituted an impermissible monetary barrier to beach access under the Coastal Act, and that “[Short-Term Rental]s may not be regulated by private actors where it affects the intensity of use or access to single family residences in a coastal zone… [such changes] must be decided by [the] City and the Coastal Commission, not a homeowner’s association.”
  • Is Michael Demeter v. Taxi Computer Services, Inc. et alterius; where the court of appeals affirmed entry of judgment in favor of Taxi, who failed to post a required bond under California’s Fee-Related Talent Services Law, when there was no evidence presented that Mr. Demeter was injured due to Taxi’s failure to post the required bond.
  • Is Timed Out, LLC v. 13359 Corporation; where the court affirmed the determination of the trial court in awarding 13359’s attorney’s fees from the time after it made its Section 998 offer to compromise, and attorneys’ fees to Timed Out for the time before the offer. While Timed Out technically succeeded at trial, the amount was less than the 998 offer, exclusive of attorneys’ fees.  Since the 998 offer permitted Timed Out to pursue its statutory attorneys’ fees, and the substantive award was less than the amount offered, the appeals court upheld the result.
  • Is The People v. Kody Lee Samuels; where the court of appeals considered how the Criminal Justice Realignment Act operates in the context of punishment for an unrelated case under the community-based ‘split sentence’ program that allows time credits against a term of imprisonment when under mandatory supervision. Here, it was determined that Mr. Samuels’ one year incarceration for ‘possession of methamphetamine for sale’ did not count as credit towards his mandatory supervision sentence for ‘unlawful driving or taking of a vehicle,’ as he was not in ‘actual custody’ for the vehicle case during his term of imprisonment for the drug case.
  • Is The People v. Corey Johnson; where the court affirmed entry of judgment against Mr. Johnson for his plea of no contest on one count of sale of controlled substance for the benefit of a street gang. In Mr. Johnson’s appeal he contended that the search that uncovered the drugs was improper, but the appellate court held that it was permissible as the police had reason to believe the car contained evidence relevant to Mr. Johnson’s arrest on selling drugs.
  • Is EHM Productions, Inc. v. Starline Tours of Hollywood, Inc.; where the court affirmed an arbitration award on a contract dispute that had previously been awarded and affirmed by a JAMS arbitrator, a JAMS appellate panel, and a trial court judge when EHM Productions is unable to demonstrate any error in either the proceedings or the award.
  • Is Paul Aron v. WIB Holdings et alterius; where the appeals court reversed the grant of a new trial and affirmed a prior order granting WIB’s Anti-SLAPP motion. The issue confronted by the courts in this case was whether a determination on appeal in a separate case constituted ‘newly discovered evidence’ for the purposes of a motion for a new trial.  The court of appeals held that “newly discovered evidence” only includes evidence that was in existence at the time the original motion or trial occurred, but went undiscovered at that time.  Here, as the appellate decision for the separate case was issued after the determination in this one, the evidence was not “newly discovered,” and so a new trial is not warranted.
  • Is Urgent Care Medical Services et alterius v. City of Pasadena [AND] City of Pasadena v. Medical Cannabis Caregivers Institute et alterius; where the court of appeal upheld the trial court’s injunction prohibiting Urgent Care, Medical Cannabis, and others from opening or operating medical marijuana dispensaries within the Pasadena City limits under Pasadena’s municipal code rendering such activities a nuisance per se. The court rejected the appeal on the basis of Pasadena’s zoning scheme rendering all non-permitted uses nuisances per se.
  • Is Conservatorship of Person and Estate of P.D. [OR] Public Guardian of the County of Ventura v. P.D.; where the court affirmed the conservatorship of the person and estate of P.D. even though the trial court erroneously informed the jury of the consequences of such a verdict. The Court held that the error was harmless here when the overwhelming evidence supported the determination based on P.D.’s own fantastical testimony, and that of expert witnesses.

From the Third Appellate District –

  • Is Thomas P. Guarino v. County of Siskiyou et alterius; where the court of appeals affirmed entry of judgment on an Anti-SLAPP motion, where the County and Individual Members of the Board of Supervisors engaged in various official acts that ultimately removed Mr. Guarino as County Counsel. The courts both held that the acts were protected, and that Mr. Guarino could not identify evidence that showed he had a likelihood of success.

From the Fourth Appellate District –

  • Is The People v. D’Mare Atte Franklin; where the court of appeals affirmed the conviction of Mr. Franklin for the assault and attempted murder of Mr. Terry B. and the assault of Mr. Jamar B. with a firearm; but remanded the case for reconsideration on the firearm enhancements to each charge based on the recent legislative changes to the sentencing scheme for firearm enhancements.
  • Is The People v. Salvador Oswaldo Chavez et alterius; where the court of appeals affirmed the sentences of Mr. Chavez and Mr. Gonzalez on charges of assault with a deadly weapon, a knife, and second degree murder with a firearm. While one of the justices would have remanded the issue of the firearms enhancement to the trial court for reconsideration, the remaining justices reasoned that the trial court’s imposition of the maximum sentence rendered such further consideration unnecessary.
  • Is S. v. D.M.; where the court of appeals reversed and remanded for reconsideration the trial court’s denial of attorney’s fees and travel costs in a custody dispute playing out between mother, N.S. who lives in California, and father, D.M. who lives in Illinois. The litigation required N.S. to travel from San Diego to Santa Clara County and retain Illinois counsel, for which she requested reimbursement from D.M. – the trial court is directed to consider whether N.S. qualifies for needs-based fees and costs.
  • Is The People v. Adrian Raphael Vela; where the court of appeals conditionally reversed and remanded Mr. Vela’s case, as Proposition 57 retroactively requires that minor children charged with criminal offenses have their charges filed before a juvenile judge, and any determination to try the minor as an adult must be determined by that judge. Here, because the prosecutor filed the charges with an “adult” criminal court, the case must be remanded and conditionally reversed.
  • Is 1901 First Street Owner, LLC v. Tustin Unified School District; where the court affirmed judgment in favor of the School District when an apartment unit developer sought to recoup school fees paid on the entire square footage of its development, seeking to limit it solely to the units themselves. The Court held that the word “structure” applied to the entire structure, and that 1901 First Street could not rely on the city’s prior, incorrect, application of the law.

Additionally, there is a modification published this week by the Fourth Appellate District that changes the result of a previously published case:

  • Specifically, In re the Marriage of Donald and Tonya Pearson, which was originally published on March 12, 2018, and addressed Mr. Pearson’s performance-based cash bonus in the marital settlement agreement and confirmed the imposition of $50,000 in sanctions against Ms. Pearson. In its March 27th modification, the court of appeals decided to remand the issue of Ms. Pearson’s ability to work to the trial court for further consideration, along with whether Ms. Pearson’s ability to work affects her right to spousal support and attorney fees.

From the Fifth Appellate District –

  • Is Erik Rodriguez v. Department of Transportation; where the court of appeal affirmed entry of judgment in favor of CalTrans, holding that for the defense of design immunity to apply to a public road, the necessary element of discretionary approval by the public entity does not require actual consideration of safety features, it only requires that the approved of design was reasonable on its own merits.
  • Is The People v. Reynaldo Gonzalez Gutierrez; where the court of appeal reversed judgment against Mr. Gutierrez on drug possession and illegal sale of ammunition charges. The Court determined that the extended detention of Mr. Gutierrez that ultimately led to his arrest was unreasonable under the Fourth Amendment when the sole reason for the initial detention was to conduct a random probation search of an associate, Mr. Beltran.

From the Sixth Appellate District –

  • Is Aaron Persky v. Shannon Bushey [Real Parties in Interest] Michele Dauber et alterius [With Intervener] Alex Padilla; where the court of appeals denied Judge Persky’s appeal from the trial court’s determination that the county registrar of voters was the correct official to review a recall petition. Judge Pesrky had argued that, as a state officer, the correct venue for a review should be with the Secretary of State, but both the trial court and the appeals court held that the California Constitution both allowed and required that the election and recall of superior court judges be handled on a county-by-county basis.  While Superior Court judges may be state officers for some purposes, they are not state officers for all purposes.

From the Appellate Division of the San Diego County Superior Court

  • Is The People v. Jeoffrey Wolf [AND] The People v. Thomas Varuolo; where the appellate division denied the appeals of Mr. Wolf and Mr. Varuolo, who argued that the San Diego County District Attorney could not authorize City of San Diego Deputy City Attorneys to prosecute misdemeanors arising out of conduct that occurred in the City of Poway. The Court analyzed the issue under the legal doctrine of Quo Warranto, or usurpation of the legal authority of a public officer, but held that the Government Code provides the mechanisms for such authorization, and determined that such mechanisms were engaged in Mr. Wolf and Mr. Varuolo’s cases.

Appellate Decisions – In Depth Review

Olivia de Havilland v. FX Networks, LLC et alterius

    On Monday, March 26, 2018, Justices Egerton, Edmon, and Dhanidina reversed Los Angeles County Superior Court Jude Kendig’s denial of FX Network’s special motion to strike Ms. de Havilland’s complaint, and ordered that the motion be granted. This case arises out of a dispute between Ms. de Havilland and FX Networks regarding Ms. de Havilland’s portrayal in FX Network’s 2017 documentary/drama “Feud:  Bette and Joan”, where Ms. de Havilland alleges that FX Networks improperly used her image, mischaracterized her history, and failed to obtain her permission to use her as a character in the series.  After filing a complaint in June 2017, FX Networks moved to strike the complaint under the special motion to strike strategic lawsuits against public participation, more commonly known as an Anti-SLAPP motion.  Under the two-prong analysis of Anti-SLAPP, the trial court held that the docudrama constituted protected speech, but ultimately held that Ms. de Havilland demonstrated a likelihood of success due to the fact that FX Networks gave no compensation to Ms. de Havilland and did not nothing transformative to Ms. de Havilland’s character such that the use was permissible without compensation.

    On appeal, the court reasoned that the trial court erred in finding that Ms. de Havilland’s suit had a likelihood of success.  The court relied on both federal and recent state-law precedent in determining that so long at the work is not simply a disguised commercial advertisement for the sale of goods or services, an individual does not have the right to compensation for their image when their image is used for documentary purposes.  Specifically, referring to the common practice of paying individuals for their stories, the court noted that “Producers of films and television programs may enter into agreements with individuals portrayed in those works for a variety of reasons, including access to the person’s recollections of ‘story’ the producers would not otherwise have, or a desire to avoid litigation for a reasonable fee.  But the First Amendment simply does not require such acquisition agreements.”  In any event, the court also held that the work is transformative, as Ms. de Havilland’s character is merely one of the raw elements synthesized in crafting the artistic work as a whole, and that the marketability and economic value of “Feud” does not primarily rely on Ms. de Havilland’s character or fame.  On these bases, the appeals court ordered that the trial court be reversed, and that the Anti-SLAPP motion be granted in its entirety.

Robert S. Greenfield et alterius v. Mandalay Shores Community Association

    On Tuesday, March 27, 2018, Justices Yegan, Perren, and Tangman reversed Ventura County Superior Court Judge Kellegrew’s denial of a preliminary injunction against Mandalay Shores, preventing them from assessing penalties for Mr. Greenfield’s use of his property as a Short-Term Rental. This case begins in 2015, when Mr. Greenfield started to offer his home, located within Mandalay Shores’ homeowner’s association, for use as a short-term rental location – allowing people to rent his beach-side property for less than 30 days.  In June 2016 Mandalay Shores adopted a resolution imposing escalating fines on any property used for short-term rentals, ranging from an initial $1,000 up to a $5,000 fine per offense.  Because the Mandalay Shores Community Association is located directly adjacent to the beach, the California Coastal Commission became involved, and advised the City of Oxnard, where the homeowner’s association is located, that any Short-Term Resident ban would constitute a ‘development’ under the California Coastal Act, and that any Short Term Resident ban would require the City to seek the review and permission of the Coastal Commission prior to implementation.  On hearing the arguments for the injunction for the instant litigation, the trial court ultimately determined that the Short Term Resident ban did not constitute a ‘development’ under the Coastal Act, and that the preliminary injunction could not be issued on that basis.

    The court of appeals reversed, and instead determined that the preliminary injunction should be issued because when the trial court interpreted the ambiguous language of the term ‘development’ in the Coastal Act, the trail court erred in failing to observe that the Coastal Act requires that its language be interpreted in order to affect the greatest accessibility to the beaches as possible for the public.  Here, because the relevant zoning laws in Oxnard permitted Short Term Rentals, Mandalay Shores’ prohibitory resolution effectively created a pay-wall between members of the public and access to the beach.  As the purpose of the Coastal Act is to guarantee access to public beaches to the public, including members of the public seeking only short-term access, the resolution is improper and such changes in zoning use and intensity must be made by the City in conjunction with the Coastal Commission.  Accordingly, the court ordered that the injunction be issued prohibiting Mandalay Shores from collecting any monies against Mr. Greenfield for his Short Term Rental.

City and County of San Francisco et alterius v. Homeaway.com, Inc.

    Originally filed on Thursday, March 15, 2018, and published on Wednesday March 28, 2018, Justices Ruvolo, Reardon, and Streeter upheld San Francisco County Superior Court Judge Kahn’s order commanding Homeaway.com to comply with an administrative subpoena. The subpoena itself was originally issued in April 2016, and requested all information that Homeaway had regarding the identity of hosts who offered accommodations through Homeaway from 2012 through the date of the subpoena.  Through a series of hearings and arguments San Francisco and Homeaway eventually settled into the positions that San Francisco should be entitled to the information under the San Francisco Business and Tax Regulations Code, which is a municipal tax regulatory scheme, and Homeaway arguing that the code provisions are preempted and protected by the Federal Stored Communications Act.

    Homeaway argued that the Stored Communications Act was implicated because the majority of its customers transactions occurred either through discussion forums without the use of Homeaway as a facilitator, or else necessarily required that communications stored with Homeaway be produced.  San Francisco argued, and the courts agreed, that whether or not the contend of the communications ultimately included the information sought by San Francisco, i.e. the names and identifying information for people acting as hosts, they were not covered by the Stored Communications Act because (1) Homeaway separately collected the same information for business purposes, (2) the information may be obtained and transmitted to San Francisco without also providing the communications themselves, and (3) the administrative subpoena satisfied with the Stored Communications Act’s procedural requirements by being authorized by state law.  Further, Homeaway’s constitutional arguments were summarily dismissed, as Homeaway failed to establish a basis for the Court to conclude that Homeaway’s customer’s rights under the First or Fourth Amendments would be infringed by San Francisco’s duly authorized administrative subpoena.  Accordingly, the trial court’s order compelling Homeaway to comply with the administrative subpoena was upheld, and San Francisco will be moving forward with its tax collection activities against individuals renting their homes out with Homeaway, but without being properly licensed or paying taxes.

Supreme Court – Roundup

This week the Supreme Court published 1 case:

  • The People v. Mario Martinez; in another case involving interaction of Proposition 47 with current law, the Supreme Court held that the court of appeals incorrectly held that the re-sentencing provisions of Proposition 47 necessarily do not apply to the transportation of drugs, as re-sentencing eligibility is not contingent on having been convicted under an enumerated statute. The Court nevertheless upheld the lower court’s denial of re-sentencing on the reasoning that Mr. Martinez would still have been guilty of a felony even if the provisions of Proposition 47 were in effect when the 2007 crime was committed because the Proposition only dealt with crimes of possession – here, Mr. Martinez’s crime was one of transportation, not possession.

In the Supreme Court’s Weekly Summary of Accepted Cases, the court announced that 4 cases were accepted during the week of March 26, 2018, specifically:

  • Alameda County Deputy Sheriff’s Assn. v. Alameda County Employees’ Retirement Assn.; where the court will look to answer whether public employee’s vested rights, protected by the contracts clause of the state and federal constitutions, were impermissibly reduced by the amendments to the County Employees Retirement Law by the 2013 Public Employees’ Pension Reform Act.
  • Kim v. Reins Internat. California, Inc.; which asks whether a former employee counts as an ‘aggrieved employee’ under the Private Attorneys General Act by dismissing his or her individual claims against the employer?
  • Stewart v. San Luis Ambulance, Inc.; where the Ninth Circuit has certified a several questions regarding the rights of ambulance attendants working twenty-four hour shifts under California Labor Laws.
  • People v. Padilla; will once again look at the rights of juvenile offenders when sentenced to life without the possibility of parole.

 

Week in Review (March 26, 2018)

Listen to the Podcast

Week of:                       March 19, 2018
Publication Date:        March 26, 2018

Appellate Decisions – Summaries

From the First Appellate District –

  • Brandon Lawrence v. Superior Court [Real Party in Interest] California Highway Patrol et alterius; where the court of appeals granted Mr. Lawrence’s petition for a writ of mandate, ordering that a car that was seized by the CHP on behalf of a Japanese citizen based on the alleged theft of the car in Japan, be returned to Mr. Lawrence immediately, as CHP is not seeking a criminal prosecution.
  • Ardella Fox et alterius v. Superior Court [Real Party in Interest] Metalclad Insulation LLC; where the court of appeals granted a writ directing the trial court to hold Ms. And Mr. Fox’s trial within 120 days pursuant to their motion for trial preference due to their advanced age and poor health. The appeals court noted that the trial court may have used the wrong standard to review the motion, as the code section has a mandatory and a discretionary provision, and may have incorrectly applied the higher standard of review under the discretionary provision to its consideration of the mandatory provision.
  • Matthew McGlynn et alterius v. State of California et alterius; where six elected judges’ appeal was denied by the appellate court, and the trial court’s determination was affirmed. Both courts held that the appellants were not entitled to the retirement benefits from the date of their election in 2012, but rather were subject to the California Public Employees’ Pension Reform Act of 2013, as they took office on January 07, 2013, six days after the provisions of the reform went into effect.
  • In re Christian K. a Person Coming Under the Juvenile Court Law [OR] Alameda County Social Services Agency v. Christian K.; where the court of appeals affirmed minor’s extended overseas trip in order to facilitate adoption to his grandmother, who lives in Denmark, over minor’s objections that he was entitled to receive additional therapeutic services that had not been provided.
  • The People v. Juan Pablo Mendez; where court of appeals reversed the trial court’s order extending his civil commitment as a mentally disordered offender, holding that the trial court erred in instructing a jury to consider the consequences of its verdict. The appeals court ordered a new trial be conducted on these grounds.
  • Norma Serrano v. Aerotek, Inc.; where the appeals court affirmed judgment entered in favor of Aerotek on a meal period employment issue, the court held that a temporary employment agency like Aerotek is not required to ‘police’ its clients in order to ensure that its own meal period policies are being enforced.

From the Second Appellate District –

  • James R. Austin v. John Michael Medicis et alterius; where the appeals court affirmed the dismissal of Mr. Austin’s complaint on demurrer for failure to file within the statute of limitations. As a matter of first impression, the court held that the statute that tolls the statute of limitation when a person is “imprisoned on a criminal charge” does not apply to individuals in pretrial custody.
  • Eleanor Licensing LLC et alterius v. Classic Recreations LLC et alterius; where the court of appeals partially reversed the trial court’s judgment in favor of Eleanor Licensing, holding that the breach of contract causes of action were past the statute of limitations and that the alter ego finding against the individual defendants was unsupported by the evidence; the court otherwise affirmed the trial court’s determination that Eleanor was entitled to retain possession of the car in dispute.
  • The People v. Starletta Partee; the court of appeals affirmed Ms. Partee’s conviction and sentencing on four felony counts of being an accessory after the fact and one misdemeanor count of contempt for refusing to testify, when, despite a grant of immunity, Ms. Partee refused to testify against four individuals charged with a gang-related murder.
  • Covina Residents for Responsible Development v. City of Covina [Real Party in Interest] City Ventures, Inc. et alterius; the appeals court affirmed the City’s ability to construct a 68 unit mixed use infill project located one quarter mile from a Metrolink commuter rail station. The Covina Residents opposed the project under the California Environmental Quality Act and the subdivision map act.
  • In re E.D. a Person Coming Under the Juvenile Court Law [OR] Los Angeles County Department of Children and Family Services v. Paul D.; where the court of appeals reversed the trial court’s order of dependency jurisdiction over minor child E.D. when there is insufficient evidence to show a substantial risk of serious physical injury as to E.D.’s father, Paul D. even though there was a prior restraining order for domestic violence, as Paul D. had completed a domestic violence batterer’s program, there were no concerns over relapse, and the DCFS social worker found Paul D. to be QUOTE “loving and nurturing to the child.”
  • Jonathan Arvizu v. City of Pasadena; where the court of appeals affirmed entry of judgment in favor of the City when Mr. Arvizu suffered extreme personal injuries after falling over a retaining wall on a public trail. The court upheld ‘trail immunity’ that prevents such suits against governments in order to encourage the development and availability of public hiking trails.

From the Third Appellate District –

  • The People v. Miguel Angel Cabrera; where the appeals court affirmed the trial court’s determination that Mr. Cabrera’s 2008 conviction were not subject to review by the trial court assigned to hear the Penal Code Section 1170.126 petition, and that even if the classifications of the crimes were incorrect, they would not constitute an unauthorized sentence.

From the Fourth Appellate District –

  • West Coast Air Conditioning Company, Inc. v. California Department of Corrections and Rehabilitation; where the court of appeals upheld the trial court’s award of $250,000 in bid preparation costs based on West Coast’s successfully establishing that it was the lowest cost bidder on a project, and that the bid from the company that was awarded the contract was illegal and nonresponsive as a matter of law.
  • The People v. Angelo Andrew Arredondo et alterius; where the appeals court affirmed in part and reversed in part on the basis of the prosecutor suggesting that the defendants here were part of a hidden group of QUOTE “Cockroaches” END-QUOTE that needed to be punished. Guilt by association for uncharged acts is not a proper argument.
  • Franklin Eng v. Michael Patrick Brown et alterius; in which the court of appeals affirmed judgment in favor of the defendants on a breach of fiduciary duty action between purported partners in a San Diego seafood restaurant, Tin Fish Gaslamp.
  • Karen Hayes v. Temecula Valley Unified School District; where the court of appeals upheld the denial of Ms. Hayes’ writ seeking reinstatement as a middle school principal. While Ms. Hayes argues that the trial court erred in analyzing the factual basis for her dismissal, the court of appeals found no basis in the trial court’s analysis for reversal.

From the Fifth Appellate District –

  • The People v. Turlock Hernan Diaz et alterius; the court of appeals affirmed the murder conviction of one defendants, Mr. Pantoja, in its entirety, and remanded Mr. Diaz’s conviction, sentencing enhancements, and sentence to the juvenile court for a transfer hearing – conditionally reversing the convictions upon the determination of transfer.

From the Sixth Appellate District –

  • Arthur Properties, II, LLC et alterius v. City of San Jose et alterius; where the court of appeals upheld the trial court’s review of an administrative proceeding. The City is allowed to shut down plaintiff’s medical marijuana dispensary as an unauthorized use of the property where the dispensary operates.

Appellate Decisions – In Depth Review

West Coast Air Conditioning Company, Inc. v. California Department of Corrections and Rehabilitation;

    While originally determined on February 22, 2018, the appeals court published this case on March 19, 2018. Here, Justices Benke, McConnell, and Irion upheld San Diego County Superior Court Judge Pressman’s entry of judgment in favor of West Coast Air Conditioning Company. In February 2015, the California Department of Corrections and Rehabilitation solicited bids for the installation of new air conditioning and re-roofing of Ironwood State Prison.  In May 2015 the Department of Corrections awarded the contract to Hensel Phelps Construction Co., and West Coast Air Conditioning immediately sought injunctive relief due to numerous alleged defects in Hensel Phelps’ bid.  Despite the litigation, the Department of Corrections had Hensel Phelps begin work, and several months later the court found that Hensel Phelps’ bid was unresponsive as a matter of law due to numerous admitted defects in its bid, and that the contract should have been awarded to West Coast Air Conditioning.

    The Department of Corrections refused to obey the court’s order to award the contract to West Coast Air Conditioning, and continued to use Hensel Phelps for the project – in a subsequent hearing the court agreed that it could not order that the Department of Corrections use West Coast as its contractor, but the court did ultimately issue a permanent injunction against the Department’s use of Hensel Phelps, as well as award damages to West Coast in the amount of $250,000 for bid preparation costs.  The Department of Corrections appealed the award, arguing that under the 2000 case Kajima/Ray Wilson v. Los Angeles County Metropolitan Transportation Authority, West Coast Air Conditioning’s relief was limited to a permanent injunction against the Department of Corrections use of Hensel Phelps on this project, which West Coast achieved.  The appeals court distinguished the Kajima case by noting that in Kajima, full relief was possible there by awarding the contract to Kajima, whereas here, the Department will have to solicit new bids to complete the project, rendering the same relief impossible for West Coast.  Therefore, the award of West Coast’s bid preparation costs was appropriate when it could not be adequately compensated by the permanent injunction alone.

Brandon Lawrence v. Superior Court [Real Party in Interest] California Highway Patrol et alterius

    On March 20, 2018, Justices Dondero, Humes, and Banke issued a peremptory writ of mandate ordering that the superior court vacate its September 29, 2017, order and instead turn over possession of a 1947 Cisitalia automobile to Mr. Lawrence rather than having it remain in the possession of the California Highway Patrol. This case begins in September 2015 when Mr. Kiyoshi Takihana allegedly used the same 1947 Cisitalia as collateral to finance a business from a Japanese construction company Ohtomi Kensetsu Kabushiki Kaisha, despite transporting the car to company, Mr. Takihana allegedly did not receive the promised loan, and did not have his car returned.  The Cisitalia then made its was into the hands of Mr. Lawrence, who purchased the car from the Japanese company, shipped it to California, and oversaw the car’s restoration.

    Mr. Takihana thereafter filed a stolen car report with the California Highway Patrol in late 2016 to early 2017, the California Highway Patrol found and seized the Cisitalia from Mr. Lawrence in March 2017 based on this report, and in the instant action the trial court ordered that the car should remain in the possession of the California Highway Patrol until a hearing could be held to determine the lawful owner of the Cisitalia.  On review of the trial court’s order, the appeals court relied on the 1998 case Ensoniq Corporation v. Superior Court, where, absent criminal charges against the possessor of purportedly stolen property, the agency holding the property must either return the property to the possession of the person from whom it was taken by the agency or else establish by a preponderance of the evidence that the property is indeed stolen.  Here, because the California Highway Patrol did not seek criminal charges and offered no evidence in the hearing for this order, the car should have been returned to Mr. Lawrence.  The issue of the true owner of the car will be left to a separate proceeding.

James R. Austin v. John Michael Medicis et alterius

    On March 21, 2018, Justices Lavin, Edmon, and Currey affirmed Los Angles Superior Court Judge Kwan’s entry of judgment in favor of defendants on the grounds that Mr. Austin’s legal malpractice claim against defendants is barred by the statute of limitations. The relevant facts of this case begin in 2009 when Mr. Austin engaged defendants to represent him on allegations that he had sexually assaulted his 14-year-old stepdaughter.  At some point during the proceedings the defendants abandoned Mr. Austin while retaining the legal fees already paid, although they made an effort to return a portion of the legal fees that was ultimately rejected.  Austin was subsequently convicted, remanded to state custody, and an appeal was denied in September 2013.

    Mr. Austin filed the instant action that same month, and argues that the one-year statute of limitations for legal malpractice should be tolled under Civil Code Section 340.6, because he was imprisoned on a criminal charge at the time the action accrued, and therefore was restricted from commencing the action.  The appeals court’s analysis considers the definition of the term ‘imprisoned’ delves into the concept of ‘civil death’, which has its root in ancient Greece.  From there the court brings its analysis to present day in California where criminals are able to pursue litigation even within the confines of the state prison system.  Under the circumstances presented in California today, the time limit on all of Mr. Austin’s causes of action began running on September 22, 2009 and October 09, 2009, and ran out in 2010 and 2012 respectively, making his 2013 action untimely for all purposes.

Supreme Court – Roundup

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

  • The Regents of the University of California et alterius v. The Superior Court of Los Angeles County [Real Party in Interest] Katherine Rosen; where the Supreme Court reversed the court of appeals’ finding that UCLA had no duty to protect a student from another student. The Supreme Court determined that when the school is on notice of foreseeable violence during curricular activities, then it owes a duty to protect to protect its students.  However, the court remanded the case for further proceedings on whether judgment should nevertheless be entered in favor of UCLA on the grounds of whether it breached this duty, or whether it is immune from liability on other grounds.
  • Newport Harbor Ventures, LLC et alterius v. Morris Cerullo World Evangelism et alterius; where the Supreme Court held that because Anti-SLAPP is designed to resolve unmeritorious suits early, hearing a special motion to strike after the 60-day statutory deadline may be denied within the discretion of the trial court.

In the Supreme Court’s Weekly Summary of Accepted Cases, the court has announced that one case was accepted during the week of March 19, 2018, specifically:

  • Lawson v. Z.B., N.A.; where the supreme court granted review in order to answer the question of whether a representative action under the Private Attorneys General Act who is seeking individualized lost wages as civil penalties fall within the preemptive scope of the Federal Arbitration Act?

Week in Review (March 19, 2018)

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Week of:                       March 12, 2018
Publication Date:        March 19, 2018

Appellate Decisions – Summaries

From the First Appellate District –

  • The People v. Beatrice Aguirre; where the court of appeals affirmed the trial court’s refusal to resentence Ms. Aguirre on felony forgery charges when Ms. Aguirre advanced the argument that each $100 bill should be treated as a separate ‘count’ of forgery; the court noted that the largest printed denomination in the United States is the $100 bill, and Proposition 47 was not intended to eliminate felony forgery.

From the Second Appellate District –

  • The People v. Kevin Mireles; the court of appeals affirmed the second degree robbery conviction of Mr. Mireles for placing a $4.47 Universal Product Code sticker on a bottle of Home Depot weed killer that is priced at $39.98 and using force to try to escape a security guard. The Court held that the crime was not one of theft by false pretenses under the 2013 People v. Williams, as Home Depot never consented to the transaction.
  • Gevel Saheli v. White Memorial Medical Center, et alterius; where the appeals court reversed the trial court’s partial denial of a motion to compel arbitration; the appeals court held that the procedural requirements of the Ralph Act and Bane Act were pre-empted by the Federal Arbitration Act under the factual circumstances of this case.
  • In The People v. Christian Almanza; the appeals court considered whether to remand Mr. Almanza’s case to the trial court based on the recently enacted Senate Bill 620, which grants court’s discretion to strike enhancements; it held that there was no rational basis to do so when the trial court sentenced Mr. Almanza to 137 years based on consecutive sentences for his third-strike, First Degree Murder conviction, striking the enhancements would only reduce the sentence to 112 years, and the court issued consecutive rather than concurrent sentences for his crimes.
  • Quanta Computer Inc. v. Japan Communications Inc.; where the appeals court affirmed dismissal on the grounds of forum non conveniens as to the dispute between a Taiwanese Company and a Japanese Company, whose sole relationship with California was that the sale contract between the parties specified that any dispute was to be resolved in a California Court under California law.

From the Third Appellate District –

  • Heriberto Ponce et alterius v. Wells Fargo Bank et alterius; where the court of appeals reversed the trial court’s granting of terminating sanctions in a mortgage foreclosure case where the plaintiffs could make a non-frivolous argument that Wells Fargo was not a predecessor in interest to a prior settlement agreement.
  • The People v. Derek Antonio Johnson; where the appeals court held that the trail court’s failure to hold a mental competency hearing violated Mr. Johnson’s due process rights when there was substantial evidence to doubt his mental competence in the form of engaging in multiple acts of self-mutilation, shouting at voices in his head, being unable to quiet himself during court proceedings, defecating in his pants, and being placed in the prison’s medical unit, given medication, and placed on suicide watch.
  • The People v. Kim E. Jordan; where the court of appeals affirmed the trial court’s imposition of penalty assessments for criminal laboratory analysis and drug program fees, and held that by failing to raise these issues in a prior appeal, Mr. Jordan waived his appeal on these issues.

From the Fourth Appellate District –

  • MMM Holdings, Inc. v. Marc Reich; where the appellate court affirmed entry of judgment in favor of Mr. Reich on an Anti-SLAPP motion, where the plaintiffs brought a suit against Mr. Reich based on his use of certain purportedly stolen documents in pursuing litigation against plaintiffs as an attorney representing an opposing party in a prior action.
  • AO Alpha-Bank v. Oleg Nikoleavich Yarkovlev; where the court of appeals reversed the trial court’s entry of judgment in favor of Mr. Yarkovlez; it found that Alpha Bank’s foreign judgment from a Russian court was enforceable even if Mr. Yarkovlez did not receive actual notice so long as the notice sent was reasonable calculated to impart actual notice. Here notice was sent by registered mail to the address in the surety agreement between the parties.
  • In re the Marriage of Donald Pearson and Tonya Pearson; the court of appeals affirmed in part, on the trial court’s determination that the term ‘bonus’ was susceptible to interpretation, and that in only referred to Mr. Pearson’s performance-based cash bonus in the marital settlement agreement and in awarding Mr. Pearson $50,000 in sanctions against Ms. Pearson; but reversed on the court’s determination of Ms. Pearson’s ability to work, finding that there was not substantial evidence to support the court’s determination.
  • Edward Davidson v. Seterus Inc. et alterius; where the appeals court reversed the trial court’s determination that defendant was not a debt collector under the Rosenthal Act, when the law is ambiguous as to whether the act applies to mortgage collectors, and California law requires that statutes for the protection of the general public are broadly construed to protect the public when there is any ambiguity.
  • Don’t Cell Our Parks v. City of San Diego [Real Party in Interest] Verizon Wireless; where the court of appeals affirmed judgment in favor of defendants, holding that the City had discretion to allow Verizon to construct a wireless telecommunications facility in a park without two-thirds vote by San Diego residents, and that the project fell within the small facility exemption under CEQA.
  • Petrolink, Inc. v. Lantel Enterprises; where the court of appeals modified the entry of judgment in favor of Petrolink on the specific performance of a real estate purchase, finding that Petrolink is entitled to an offset of all rents paid after the option to purchase was validly exercised in order to place the parties in the position they would have been had the contract been fully performed.
  • George Corley v. San Bernardino County Fire Protection District; where the appeals court affirmed entry of judgment in favor of Mr. Corley on an age discrimination claim, where a jury found that Mr. Corley’s age was a substantial motivating reason for the District’s termination of his employment; the court held there was no reversible error in the jury instructions.

From the Fifth Appellate District –

  • Big Oak Flat-Groveland Unified School Disctrict et alteruis Superior Court [Real Party in Interest] Jane Doe; where the court granted the school district’s petition for a writ of mandate, holding that Jane Doe’s failure to timely comply with the school district’s claim presentation requirements meant that she could not present a claim for childhood sexual abuse.

Finally, From the Sixth Appellate District –

We have no cases this week.

Appellate Decisions – In Depth Review

The People v. Kevin Mireles

    Justices Johnson and Rothschild affirmed the judgment entered against Mr. Mireles by Los Angeles County Superior Court Judge Kim. The case is based upon Mr. Mireles walking into Home Depot, placing a UPC sticker that scanned for $4.47 on a bottle of weed killer that sells for $39.98, and trying to leave the store after pretending to purchase the item as the self-checkout line.  When Mr. Mireles attempted to leave the store, he was confronted by store security, and Mr. Mireles swung a closed fist at the security officer before being restrained until the police could arrive.  Mireles was convicted of robbery, which requires that the jury make a determination that ‘force, fear, or intimidation’ were used during the course of the theft.  On appeal, Mr. Mireles argued that the most he should have been convicted of was a theft by false pretenses, but the court held that the key conduct for differentiating a crime of false pretenses from a crime of larceny occurs at the time of the taking – here, Mr. Mireles never received consent to purchase the item from the store for the wrong amount, and therefore the crime constituted one of larceny.

    In a separate concurring and dissenting opinion, Justice Chaney argued that the majority’s analysis was flawed as to the differences between theft by larceny or by false pretense.  Specifically, Justice Chaney argued that the majority ignored that between Mr. Mireles taking the weed killer off the shelf and being apprehended, Mr. Mireles engaged in a transaction with Home Depot for the purchase of the weed killer, and it was that transaction that ultimately defined the crime, as his pretending to pay for the weed killer is where the crime occurred.

Gevel Saheli v. White Memorial Medical Center, et alterius

    Justices Bigelow and Hall reversed Los Angeles County Superior Court Judge Hammock decision to deny arbitration as to two causes of action under the Ralph Act and the Bane Act, which are causes of action based on alleged hate crimes. Under the court of appeals’ analysis of the arbitration agreement, it found that the trial court erred when it incorporated state law provisions under the Ralph and Bane Acts that make arbitration agreements unenforceable ab initio, or else require a knowing and voluntary waiver of rights under the relevant act to be proved by the party attempting to enforce arbitration.  Under the appeals court’s pre-emption analysis under the Federal Arbitration Act and U.S. Supreme Court precedent, the court ultimately reasoned that claims under the Ralph and Bane acts were fundamentally different from Private Attorney General Actions, and thus could not avoid preemption – rendering the arbitration agreement enforceable as to those two causes of action.

    In a concurring opinion, Justice Rubin stated that while he agreed with this result as the correct result under the compulsion of U.S. Supreme Court precedent, he fundamentally disagreed with the continuing trend towards compelling more and more cases into arbitration.  Specifically, Justice Ruben note that “Our opinion today facilitates the elimination through arbitration clauses of civil trials for Bane Act and Ralph Act violations without regard to whether the conduct is grievously violent or much less so,”  and argued that the California Legislature should be within its power to determine that arbitration of hate crimes is unconscionable, against public policy and unenforceable.

Supreme Court – Roundup

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

  • In re Vincente Benavides Figueroa; in a habeus corpus petition for a conviction and death sentence previously confirmed by the Court for the rape and murder of Consuelo Verdugo in 1991, the Court vacated the judgment in its entirety on the basis of the State’s concession that that false evidence was introduced at trial regarding the alleged rape. While the State argued for a reduction from First Degree Murder to Second Degree Murder, the court considered such a reduction to require it to posit a radically different trial than the one that petitioner received, and was therefore required to vacate the judgment.
  • The People v. Veronica Lorraine DeHoyos et alterius; in this case the court addressed a procedural issue related to Proposition 47, determining that defendants who were serving felony sentences on the measure’s effective date but whose judgments were on appeal and thus not yet final are required to follow the statutory resentencing procedures, including the risk assessment, prescribed by Penal Code Section 1170.18.

In the Supreme Court’s Weekly Summary of Accepted Cases, the court has announced that six cases were accepted during the week of March 12, 2018, including:

  • Wishnev v. Northwestern Mutual Life Ins. Co.; where the Ninth Circuit asks about the interaction of the California Constitution and California Code related to lenders.
  • People v. Bueno; where the question of the propriety of lab fees will be considered when the conviction is based on conspiracy to commit drug-related crimes.
  • People v. Martinez-Carreon; asks about the liability for aiders and abiders in a premeditated murder case in light of new guidance from the US and State Supreme Courts.
  • People v. McCurdy; will seek to address another Proposition 47 issue related to what happens when sentencing enhancement becomes a misdemeanor.
  • People v. Shaw; will answer the question of a pair of pliers constitutes ‘burglary tool’ under Penal Code Section 466.
  • Finally, in People v. Tabron; the Supreme Court will too to answer the question of whether a trial court’s failure to instruct certain elements of murder are harmless error when the jury found a felony murder special circumstance.