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Litigation

California Official Reports: Electronic Advance Sheet - Court Opinions For Monday, August 13, 2012

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The CA e-Advance provides a business daily e-mail service to keep you updated and to provide online links to:

  • Index of new California opinions
  • Index of actions without opinion

Index of new California opinions:

1. People v. Gonzalez, S189856, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 6359 Shepardize , July 5, 2012, Filed, Reported at People v. Isabel, 2012 Cal. LEXIS 6872 Shepardize (Cal., July 5, 2012)

OVERVIEW: Substantial evidence supported defendant's conviction for the first degree murder of her boyfriend under the provocative act doctrine. Defendant handed the boyfriend a loaded rifle, but intended victim wrested the rifle away and shot the boyfriend to death. Defendant performed acts fraught with grave and inherent danger to human life.

CORE TERMS: provocative, murder, attempted murder, degree murder, premeditation, accomplice, deliberation, kill, malice, rifle ...

2. Smith v. Superior Court, S188068, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 6165 Shepardize , July 2, 2012, Filed, Reported at Smith (Donald) v. S.C. (People), 2012 Cal. LEXIS 6828 Shepardize (Cal., July 2, 2012)

OVERVIEW: Trial court properly continued defendant's trial to a date within Pen. Code, § 1382's 10-day period in order to permit defendant and his codefendant to be tried in a single joint trial because the State's strong interests in joinder provided good cause to continue the trial for all properly joined codefendants to same date within the 10-day period.

CORE TERMS: good cause, codefendant, "continuance", joinder, joint trial, grace period, state interests, speedy trial, jointly charged, prosecutor's ...

3. United Teachers of Los Angeles v. Los Angeles Unified School Dist., S177403, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 6164 Shepardize , June 28, 2012, Filed, Reported at United Teachers of L.A. v. L.A. Unified Sch. Dist., 2012 Cal. LEXIS 6454 Shepardize (Cal., June 28, 2012)

OVERVIEW: California Supreme Court declined to express a view on whether collective bargaining provisions cited in a teachers union's grievance were necessarily in conflict with the California Education Code, where the union did not identify with sufficient specificity which collective bargaining provisions a school district allegedly violated.

CORE TERMS: collective bargaining, charter schools, charter, arbitration, grievance, bargaining agreement, school district, petition to compel arbitration, "teacher, educational ...

4. In re M.M., S177704, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 6163 Shepardize , June 28, 2012, Filed, Reported at In re M.M., 2012 Cal. LEXIS 6443 Shepardize (Cal., June 28, 2012)

OVERVIEW: Defendant minor's contention that his conviction for resisting or delaying a public officer under Pen. Code, § 148, subd. (a)(1), was unsupported by substantial evidence because a school security officer was not a public officer within the meaning of that section failed.

CORE TERMS: "public officer", security officers, "peace officers, public school, law enforcement, public office, school district, public duties, obstruct, resist ...

5. People v. McDowell, S085578, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 5821 Shepardize , June 25, 2012, Filed, Reported at People v. McDowell, 2012 Cal. LEXIS 6400 Shepardize (Cal., June 25, 2012)

OVERVIEW: Defendant's speedy trial rights were not violated, as the prosecution of his case, direct appeal of his conviction and death sentence, and capital appellate and habeas corpus process did not did not cause any unreasonable or unjustifiable delay; judicial process was constitutional safeguard to explore any argument that possibly could save his life.

CORE TERMS: prosecutor, aggravating, penalty retrial, juror, death penalty, murder, retrial, sentence, speedy trial, misconduct ...

6. Parks v. MBNA America Bank, N.A., S183703, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 5795 Shepardize , June 21, 2012, Filed, Reported at Allan v. Mbna Am. Bank N.A., 2012 Cal. LEXIS 6466 Shepardize (Cal., June 21, 2012)

OVERVIEW: Because the specific disclosure obligations imposed by Civ. Code, § 1748.9, for convenience checks exceeded federal requirements, § 1748.9 was preempted with regard to a national bank in accordance with the supremacy clause, U.S. Const., art. VI, cl. 2, as an obstacle to the broad grant of power to national banks in 12 U.S.C. § 24 Shepardize , par. Seventh.

CORE TERMS: national bank, state law, preemption, convenience, banking, disclosure, preempted, preempt, personal security, impair ...

7. People v. Brown, S181963, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 5263 Shepardize , June 18, 2012, Filed, Reported at People v. Brown III (James Lee), 2012 Cal. LEXIS 6093 Shepardize (Cal., June 18, 2012)Time for Granting or Denying Rehearing Extended People v. Brown, 2012 Cal. LEXIS 6889 Shepardize (Cal., July 10, 2012)

OVERVIEW: Former Pen. Code, § 4019, could not be applied retroactively to award additional conduct credits for time that defendant spent in local custody before he was committed to state prison. The presumption against retroactivity in Pen. Code, § 3, applied because there was neither an express statutory declaration of retroactivity nor a clear implication.

CORE TERMS: conduct credits, prisoner's, retroactively, good behavior, sentence, prospectively, local custody, similarly situated, state prison, retroactive ...

8. Gomez v. Superior Court, S179176, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 5262 Shepardize , June 18, 2012, Filed, Reported at Gomex (Alfredo) v. S.C. (Felker), 2012 Cal. LEXIS 6128 Shepardize (Cal., June 18, 2012)

OVERVIEW: In a case in which inmates filed petitions for writ of mandate in the superior court, the California Supreme Court held that Code Civ. Proc., § 259, subd. (a), grants authority to court commissioners to summarily deny a petition for writ of mandamus or habeas corpus, and that § 259, subd. (a), is constitutional.

CORE TERMS: writs of habeas corpus, alternative writs, hear, habeas corpus petition, prison, ex parte, ex parte, writ of mandate, uncontested, subordinate judicial duties ...

9. Reed v. United Teachers L.A., B230817, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION TWO, 2012 Cal. App. LEXIS 868 Shepardize , August 10, 2012, Opinion Filed

CORE TERMS: consent decree, teacher, settlement, decree, seniority, intervenor, layoff, judicial determination, constitutional violations, turnover ...

10. Ideal Boat & Camper Storage v. County of Alameda, A132714, COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FOUR, 2012 Cal. App. LEXIS 867 Shepardize , August 9, 2012, Opinion Filed

CORE TERMS: general plan, storage, boat, ordinance, nonconforming use, agriculture, zoning, discretionary, staff, land use ...

11. City of San Diego v. Haas, D058225, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 763 Shepardize , June 29, 2012, Opinion Filed

OVERVIEW: Although San Diego Ordinance No. 0-19567 operated retroactively, it was not invalid because it only amended the municipal code to reflect the city's existing agreements with the city employees retirement system and city employees first hired between July 1, 2005 and February 16, 2007, on benefit modifications.

CORE TERMS: ordinance, charter, retroactive, hired, vested, pension, summary judgment, subclass, contractual, modification ...

12. The Press Democrat v. Sonoma County Herald Recorder, A131181, COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FIVE, 2012 Cal. App. LEXIS 770 Shepardize , June 29, 2012, Opinion Filed

OVERVIEW: The trial court erred in denying plaintiff's motion under Gov. Code, § 6024, to vacate defendant's adjudication as a newspaper of general circulation for the City of Santa Rosa and Sonoma County because defendant did not demonstrate that it was exempt from the mandate of local printing under Gov. Code, § 6006.

CORE TERMS: newspaper of general circulation, newspaper, subscriber, notice, vacate, exemption, subscription list, legal notices--, bona fide, "printed ...

13. People v. Aragon, C066237, COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT, 2012 Cal. App. LEXIS 767 Shepardize , June 29, 2012, Opinion Filed

OVERVIEW: Defendant's conviction for willfully violating the sex offender registration requirements under Pen. Code, §§ 290, 290.011, had to be reversed where there was no direct evidence that he knew that he had a duty to register his travel trailer as a residence, nor was there circumstantial evidence from which jury could reasonably infer such knowledge.

CORE TERMS: register, transient, sex offender, trailer, travel, convicted, sex offender, actual knowledge, notice, required to register ...

14. Hoitt v. Department of Rehabilitation, A130314, COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION THREE, 2012 Cal. App. LEXIS 766 Shepardize , June 29, 2012, Opinion Filed

OVERVIEW: Because a state university was sufficient to meet the training needs of a student who suffered from cerebral palsy, the California Rehabilitation Appeals Board did not err pursuant to Cal. Code Regs., tit. 9, §§ 7155 and 7156, in limiting the tuition reimbursement to the rate charged by the state university.

CORE TERMS: training, private institution, public institutions, rehabilitation, vocational, tuition, private school, sufficient to meet, video game, individualized ...

15. In re Lira, H036162, COURT OF APPEAL OF CALIFORNIA, SIXTH APPELLATE DISTRICT, 2012 Cal. App. LEXIS 768 Shepardize , June 29, 2012, Opinion Filed

OVERVIEW: Where an inmate remained incarcerated after the California Governor erroneously vetoed a decision to grant parole by the California Board of Parole Hearings, the inmate was entitled to custody credit for his continued incarceration after the veto, because the period of continued incarceration was not lawfully served.

CORE TERMS: parole, inmate's, suitability, veto, term of imprisonment, prisoner, incarceration, prison, parole term, corpus ...

16. W.M. Barr & Co., Inc. v. South Coast Air Quality Management Dist., B233892, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 759 Shepardize , June 28, 2012, Opinion Filed

OVERVIEW: Substantial evidence supported an air quality district's finding of no significant impact in a supplemental environmental assessment, functioning as a mitigated negative declaration under Pub. Resources Code, § 21064.5, for an amended rule. No environmental impact report was needed because mitigation measures for fire hazard risks were adequate.

CORE TERMS: solvent, paint thinner, "acetone", preemption, "warning", "consumer, label, preempted, labeling, environmental ...

17. People v. Diaz, G044411, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE, 2012 Cal. App. LEXIS 760 Shepardize , June 28, 2012, Opinion Filed, CERTIFIED FOR PARTIAL PUBLICATION** Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part IIB.

OVERVIEW: Defendant's possession of burglary tools conviction was not supported by substantial evidence because gloves and a bag did not constitute burglary tools, as no evidence suggested they were possessed to break into or gain access to victim's property, and they did not resemble items legislature had specified were burglary tools in Pen. Code, § 466.

CORE TERMS: burglary, gloves, ceramic, bag, ejusdem generis, window, spark plug, latex, italics, chip ...

18. Fait v. New Faze Development, Inc., C067630, COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT, 2012 Cal. App. LEXIS 756 Shepardize , June 27, 2012, Opinion Filed

OVERVIEW: Borrowers' lack of malicious intent in demolishing a building did not preclude their lenders' cause of action for bad faith waste following a foreclosure sale. To obtain the benefit of the antideficiency statutes, Code Civ. Proc., §§ 580b, 580d, the borrowers had to show that the waste was the result of economic pressures of a market depression.

CORE TERMS: bad faith, cause of action, depression, demolition, impairment of security, deficiency judgment, impairment, mortgagor, deed of trust, purchaser ...

19. Patterson v. Domino's Pizza, LLC, No. B235099, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SIX, 2012 Cal. App. LEXIS 753 Shepardize , June 27, 2012, Opinion Filed, Rehearing granted, Depublished by Patterson v. Domino's Pizza, LLC, 2012 Cal. App. LEXIS 794 Shepardize (Cal. App. 2d Dist., June 27, 2012)

OVERVIEW: In a sexual harassment case brought under California's Fair Employment and Housing Act, employee met her burden to show triable issues of fact involving extent of franchisor's control over its franchisee. Requirements imposed by franchisor raised reasonable inferences supporting employee's claim that franchisee was not an independent contractor.

CORE TERMS: franchisee, franchisor's, franchise agreement, supervisor, independent contractor, franchise, sexual harassment, summary judgment, triable, issues of fact ...

20. Estate of Wong, A132295, COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION TWO, 2012 Cal. App. LEXIS 757 Shepardize , June 27, 2012, Opinion Filed

OVERVIEW: Because executor of a decedent's estate failed to establish that attorney who represented her in her executor capacity violated Bus. & Prof. Code, § 6148, by failing to secure a written fee agreement or that he committed constructive fraud, probate court did not err by awarding attorney statutory compensation under Prob. Code, § 10810 et seq.

CORE TERMS: probate, executor, personal representative, attorney fee, rescission, decedent's estate, fee agreement, rescind, constructive fraud, services rendered ...

21. People v. Loza, D057568, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 755 Shepardize , June 27, 2012, Opinion Filed

OVERVIEW: Defendant's trial counsel rendered ineffective assistance where counsel failed to object to trial court's instructions to jury concerning the intent element of aiding and abetting and failed to object to court's response to jury's questions on that issue. Because error was not harmless, defendant's first-degree murder conviction had to be reversed.

CORE TERMS: aider and abettor, kidnapping, felony murder, prosecutor, perpetrator, jury's questions, trunk, murder, aided, alive ...

22. Kurtin v. Elieff, G043999, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE, 2012 Cal. App. LEXIS 754 Shepardize , June 27, 2012, Opinion Filed, As modified July 9, 2012., Modified by Kurtin v. Elieff, 2012 Cal. App. LEXIS 790 Shepardize (Cal. App. 4th Dist., July 9, 2012)Rehearing granted, Depublished by Kurtin v. Elieff, 2012 Cal. App. LEXIS 859 Shepardize (Cal. App. 4th Dist., Aug. 3, 2012)

OVERVIEW: Because a jury found a purported agent liable under Civ. Code, § 2343, but also found that he had a good faith belief in his authority to bind the entities on whose behalf he signed a mediated settlement agreement and that he made no misrepresentations, the jury's inconsistent verdicts made a new trial necessary on liability.

CORE TERMS: entity, settlement agreement, arbitration, new trial, arbitrator, cause of action, measure of damages, purported, warranty of authority, good faith belief ...

23. Outfitter Properties, LLC v. Wildlife Conservation Bd., C065100, COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT, 2012 Cal. App. LEXIS 743 Shepardize , June 26, 2012, Opinion Filed

OVERVIEW: Wildlife Conservation Board properly exercised its discretion when it approved a grant from the Habitat Conservation Fund for a salmon and trout restoration project, which was an authorized purpose under Fish & G. Code, § 2786, subd. (e), although the grant exceeded the approximate amount specified in Fish & G. Code, § 2791, subd. (d).

CORE TERMS: conservation, habitat, expenditure, restoration, wildlife, fish, partnership, salmon, voter, practicable ...

24. In re Ryan K., B235259, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FOUR, 2012 Cal. App. LEXIS 769 Shepardize , May 31, 2012, Opinion Filed, The Publication Status of this Document has been Changed by the Court from Unpublished to Published June 29, 2012.

OVERVIEW: Juvenile court had the power to consider a mother's petition for modification under Welf. & Inst. Code, § 388, and/or a children and family services agency's interim report and revisit custody when the case was remanded. The juvenile court erred in declining to consider whether a change in custody would best serve the child's interests.

CORE TERMS: juvenile, custody, visitation, "family law", dependency, caseworker, remittitur, physical custody, visitation order, best interest ...

25. Sotelo v. Medianews Group, Inc., A130585, COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION TWO, 2012 Cal. App. LEXIS 776 Shepardize , May 31, 2012, Opinion Filed, The Publication Status of this Document has been Changed by the Court from Unpublished to Published July 2, 2012.

OVERVIEW: Class certification under Code Civ. Proc., § 382, was properly denied with regard to wage and hour claims brought by newspaper carriers and distributors. The proposed class was not ascertainable because of a lack of records, and predominant common questions were not shown because carriers' hours varied and uniform policies were not alleged.

CORE TERMS: class members, class certification, carrier's, overtime, causes of action, ascertainability, newspaper, proposed class, notice, putative ...

26. City of Hayward v. Trustees of California State University, A131412, A132424, A131413, A132423, COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION THREE, 2012 Cal. App. LEXIS 761 Shepardize , May 30, 2012, Opinion Filed, As modified July 11, 2012., CERTIFIED FOR PARTIAL PUBLICATION** This opinion is certified for publication with the exception for the final five paragraphs of part 3.b., and parts 3.c. and 4. of the Discussion., The Publication Status of this Document has been Changed by the Court from Unpublished to Published June 28, 2012.Modified by City of Hayward v. Board of Trustees of California State University, 2012 Cal. App. LEXIS 796 Shepardize (Cal. App. 1st Dist., July 11, 2012)

OVERVIEW: Environmental impact report was deficient under the California Environmental Quality Act, Pub. Resources Code, § 21000 et seq., in that it failed to evaluate potential impacts to two neighboring parks resulting from the approval of a master plan for development of a state university campus, but generally discussed the entire regional park district.

CORE TERMS: campus, master plan, housing, environmental, parking, mitigation measures, traffic, mitigation, fire station, environmental impacts ...

Index of actions without opinion

1. Clayton v. S.C. People, S202994, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 7332 Shepardize , June 15, 2012, Opinion Filed

2. Tyrone v. S.C. People, S202892, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 7333 Shepardize , June 14, 2012, Opinion Filed

3. Rahsaan v. S.C. People, S202917, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 7329 Shepardize , June 14, 2012, Opinion Filed

4. Boysel (Richard) v. S.C. (People), S202324, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 5386 Shepardize , June 13, 2012, Opinion Filed

5. Caldeira Paul J., S200411, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 7334 Shepardize , June 13, 2012, Opinion Filed

6. People v. Allen, A130068, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 7331 Shepardize , June 11, 2012, Opinion Filed

7. Chin-Teh v. Lien Eric W.., A132471, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 7335 Shepardize , June 11, 2012, Opinion Filed

8. Homeowners of Angelo Drive v. S.C. Pfalzgraf, S202955, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 7328 Shepardize , June 1, 2012, Opinion Filed

9. Bar Admission 2012 February 2012, S202559, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 7330 Shepardize , June 1, 2012, Opinion Filed

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