Litigation

California Official Reports: Electronic Advance Sheet - Court Opinions For Wednesday, December 12, 2012

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Index of new California opinions:

1. People v. Wyatt, S189786, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 10087 Shepardize , November 5, 2012, Filed, Reported at People v. Wyatt (Reginald), 2012 Cal. LEXIS 10978 Shepardize (Cal., Nov. 5, 2012)Time for Granting or Denying Rehearing Extended People v. Wyatt (Reginald), 2012 Cal. LEXIS 10569 Shepardize (Cal., Nov. 14, 2012)

OVERVIEW: In a case in which defendant was convicted of assault on a child causing death, in violation of Pen. Code, § 273ab, the trial court had no sua sponte duty to instruct on simple assault as a lesser included offense, where it would have been speculative at best to construe the trial evidence as supporting a verdict of only simple assault.

CORE TERMS: assault, simple assault, lesser, bed, instruct, reasonable person, homicide, hit, lesser offense, bodily injury ...

2. In re Cabrera, S197283, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 9985 Shepardize , October 29, 2012, Filed, Reported at Cabrera (Elvin) on H.C., 2012 Cal. LEXIS 10732 Shepardize (Cal., Oct. 29, 2012)

OVERVIEW: Because interpretation of Cal. Code Regs., tit. 15, § 3378, subd. (c), adopted pursuant to Pen. Code, §§ 5058, 5068, involved agency expertise and was not clearly unreasonable, an inmate was not entitled to habeas relief from a gang validation order that was made without requiring evidence of reciprocal interaction with a validated gang affiliate.

CORE TERMS: gang, affiliate, inmate, validated, prison, validation, drawing, quasi-legislative, symbol, lawmaking ...

3. Lui v. City & County of San Francisco, A131882, COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FIVE, 2012 Cal. App. LEXIS 1248 Shepardize , December 11, 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 III.

CORE TERMS: police officer, light-duty, disability, emergency, disabled, strenuous, reasonable accommodation, arrest, able to perform, mobilization ...

4. Central Basin Municipal Water Dist. v. Water Replenishment Dist. of Southern California, B235039, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION EIGHT, 2012 Cal. App. LEXIS 1244 Shepardize , December 10, 2012, Opinion Filed, CERTIFIED FOR PARTIAL PUBLICATION** Pursuant to California Rules of Court, rule 8.1110(a), this opinion is certified for publication with the exception of part 3, of the Discussion.

OVERVIEW: Because a water emergency declaration pursuant to an existing judgment had no environmental impact by itself, it was not a project under Pub. Resources Code, § 21065; and considering its consequences, it was a ministerial act under Pub. Resources Code, § 21080, subd. (b)(1), needing no environmental impact report under Pub. Resources Code, § 21151.

CORE TERMS: emergency, basin, environmental, ministerial, carryover, replenishment, declaration, environmental quality, public agencies, groundwater ...

5. Veronese v. Lucasfilm Ltd., A129535 & A131660, COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION TWO, 2012 Cal. App. LEXIS 1245 Shepardize , December 10, 2012, Opinion Filed

CORE TERMS: email, pregnancy, pregnant, responded, vacation, business judgment, prejudicial, retaliation, instruct, termination ...

6. Summit Media LLC v. City of Los Angeles, B220198, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION EIGHT, 2012 Cal. App. LEXIS 1243 Shepardize , December 10, 2012, Opinion Filed

OVERVIEW: Settlement by the City of Los Angeles permitting outdoor advertising companies to digitize existing billboards was an invalid, ultra vires act because it exempted the companies from prohibitions in L.A. Ord. No. 174547, which banned new off-site signs and alterations to legally existing off-site signs.

CORE TERMS: settlement agreement, real parties, ordinance", off-site, settlement, ban, stipulated judgment, zoning, digital, alteration ...

7. City of Santa Maria v. Adam, H032750, COURT OF APPEAL OF CALIFORNIA, SIXTH APPELLATE DISTRICT, 2012 Cal. App. LEXIS 1206 Shepardize ; 43 ELR 20241 Shepardize , November 21, 2012, Opinion Filed

OVERVIEW: Where a court erred in rejecting landowners' claims to quiet title in their overlying rights to native groundwater in a basin, they were entitled to a judicial declaration confirming their overlying rights were prior to that of all appropriators, less amounts to which two public water producers were entitled pursuant to their prescriptive rights.

CORE TERMS: groundwater, basin, prescriptive right, overlying, surplus, overdraft, landowner, appropriator, water rights, native ...

8. Dow v. Lassen Irrigation Co., C068550, COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT, 2012 Cal. App. LEXIS 1192 Shepardize , November 19, 2012, Opinion Filed

OVERVIEW: Trial court erred in concluding that under the Susan River Decree, irrigation company had a right to direct diversion to beneficial use that was measured by the capacity of its reservoirs, estimated at 31,500 acre-feet. Company's right to divert for direct application to beneficial use was to be measured in cubic feet per second, not acre-feet.

CORE TERMS: irrigation, river, decree, diversion, reservoir, beneficial use, divert, cfs, acre-feet, user ...

9. Darling v. Superior Court, A135747, COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FIVE, 2012 Cal. App. LEXIS 1189 Shepardize , November 16, 2012, Opinion Filed

OVERVIEW: A trial court properly entered an order staying homeowners' construction defect litigation against builders pursuant to Civ. Code, § 930, where the homeowners had not completed the statutory prelitigation procedure of Civ. Code, § 910 et seq., because they had not effectively served the builders with a notice of a claim.

CORE TERMS: builder, homeowner, prelitigation, notice, repair, construction defects, lawsuit, legislative history, notice of claim, nonadversarial ...

10. County of Los Angeles v. Superior Court, B239849, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION EIGHT, 2012 Cal. App. LEXIS 1188 Shepardize , November 16, 2012, Opinion Filed, As modified Dec. 3, 2012., Modified by County of Los Angeles v. Superior Court, 2012 Cal. App. LEXIS 1227 Shepardize (Cal. App. 2d Dist., Dec. 3, 2012)

OVERVIEW: Pending litigation exemption, Gov. Code, § 6254, subd. (b), did not apply to documents relating to attorney fees a county paid to defend itself against a pending action where dominant purpose for preparing the documents was not for use in litigation, but as part of normal record keeping and to facilitate payment of attorney fees on a regular basis.

CORE TERMS: "pending litigation", exemption's, public record, disclosure, dominant purpose, public entity, Recording Laws, public agency, attorney fees, attorney-client ...

11. In re P.A., E053608, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION TWO, 2012 Cal. App. LEXIS 1186 Shepardize , November 15, 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 III.A. and C.2. through C.5.

OVERVIEW: Juvenile court properly imposed probation condition requiring defendant minor, who was adjudged a ward of the court under Welf. & Inst. Code, § 602, to submit to blood, breath, or urine tests for presence of alcohol or drugs, as Welf. & Inst. Code, § 729.3, did not affect court's discretion under Welf. & Inst. Code, § 730, in his case.

CORE TERMS: testing, juvenile, maximum, blood, alcohol, term of confinement, probation condition, urine testing, offender, blood testing ...

12. Richey v. AutoNation, Inc., B234711, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SEVEN, 2012 Cal. App. LEXIS 1177 Shepardize , November 13, 2012, Opinion Filed

OVERVIEW: Arbitrator improperly denied the claim of an employee who was terminated while on medical leave because the employer could not, under the Moore-Brown-Roberti Family Rights Act, rely on an honest belief defense or, in the absence of adequate investigation into alleged misconduct, on an imprecisely worded and inconsistently applied company policy.

CORE TERMS: arbitrator, reinstatement, arbitration, honest belief, restaurant, statutory right, legal error, arbitration award, arbitration agreement, judicial review ...

13. People v. Argeta, B229135, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FOUR, 2012 Cal. App. LEXIS 1178 Shepardize , November 13, 2012, Opinion Filed, As modified Dec. 4, 2012., CERTIFIED FOR PARTIAL PUBLICATION** Pursuant to California Rules of Court, rules 8.1100 and 8.1110, only the first paragraph of the opinion, part VII of the discussion, and the disposition are certified for publication., Modified and rehearing denied by People v. Argeta, 2012 Cal. App. LEXIS 1229 Shepardize (Cal. App. 2d Dist., Dec. 4, 2012)

OVERVIEW: Eighth Amendment principles articulated in recent cases required reversal of a minor's 100-year sentence for one count of murder and five counts of attempted murder because the minor was convicted for aiding and abetting an adult, and the sentence was the functional equivalent of a life sentence without possibility of parole.

CORE TERMS: sentence, juvenile, sentencing, possibility of parole, parole, cruel, convicted, homicide, murder, functional equivalent ...

14. Stockton Citizens for Sensible Planning v. City of Stockton, C067164, COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT, 2012 Cal. App. LEXIS 1175 Shepardize , November 13, 2012, Opinion Filed

OVERVIEW: Plaintiffs' cause of action alleging planning and zoning violations relating to a city's approval of a retail store project was time-barred under Gov. Code, § 65009, subd. (c), because it was not commenced within 90 days of the project's approval.

CORE TERMS: legislative body, development plan, limitations period, cause of action, zoning, zoning administrators, planning, local ordinance, variance, notice ...

15. Cottonwood Duplexes, LLC v. Barlow, C069564, COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT, 2012 Cal. App. LEXIS 1176 Shepardize , November 13, 2012, Opinion Filed, CERTIFIED FOR PARTIAL PUBLICATION** Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of part III of the Discussion.

OVERVIEW: Trial court erred in partially extinguishing a granted road and utility easement, which precluded building on some lots within a subdivision, based on a conclusion that reasonable use did not require the full easement. Such a ruling could not be justified by an extension of case law allowing a servient owner to place improvements upon an easement.

CORE TERMS: easement, parcel, servient tenement, extinguishment, feet, dominant tenement's, servient, adjacent, appen, entirety ...

16. In re T.C., H038065, COURT OF APPEAL OF CALIFORNIA, SIXTH APPELLATE DISTRICT, 2012 Cal. App. LEXIS 1172 Shepardize , November 9, 2012, Opinion Filed

OVERVIEW: No jurisdictional basis existed to entertain a minor's appeal from a deferred entry of judgment order, including a restitution component under Welf. & Inst. Code, § 794, because neither Welf. & Inst. Code, § 800, nor any other statutory provision authorized such an appeal. The minor could not separately appeal the restitution award.

CORE TERMS: restitution, restitution order, deferred, juvenile, appealable, entry of judgment, juvenile delinquency, appealing, entertain, probation ...

17. In re M.L., E054939, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION TWO, 2012 Cal. App. LEXIS 1174 Shepardize , November 9, 2012, Opinion Filed

OVERVIEW: In a jurisdictional dependency hearing, it was error under Welf. & Inst. Code, § 5328, to admit mother's prior psychiatric records based on a finding that the family services department could not prove its case unless the privileged records were disclosed and admitted because there was no statutory or case-based exception for such disclosure.

CORE TERMS: disclosure, patient's, confidential, juvenile, psychiatric records, privileged, admissibility, mental health, psychotherapist-patient, medication ...

18. People v. Verduzco, B227825, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 1166 Shepardize , November 8, 2012, Opinion Filed

OVERVIEW: Defendant's conviction for possession of an essential chemical sufficient to manufacture hydriodic acid or a reducing agent with intent to manufacture methamphetamine was reversed because his possession of red phosphorus alone did not constitute substantial evidence of his violation of Health & Saf. Code, § 11383.5, subd. (e).

CORE TERMS: manufacture, acid, methamphetamine, reducing agent, chemical, hydriodic, phosphorus, red, iodine, legislative history ...

19. People v. United States Fire Ins. Co., F063445, F063451, F063452, COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT, 2012 Cal. App. LEXIS 1167 Shepardize , November 8, 2012, Opinion Filed

OVERVIEW: In bail bond forfeiture proceedings in which the People prevailed, the trial court correctly denied the People's motions for attorney fees under Pen. Code, § 1305.3. No independent legal basis upon which to claim recovery of attorney fees existed.

CORE TERMS: attorney fees, bail bond, county counsel, forfeiture, legal basis, forfeited, opposing, right to recover, recoverable, bail ...

20. People v. Arauz, No. B230053, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SIX, 2012 Cal. App. LEXIS 1165 Shepardize , November 8, 2012, Opinion Filed

OVERVIEW: In a case involving two defendants who were convicted of criminal street gang activity and two counts of attempted premeditated murder, trial court did not err in admitting accomplice's jailhouse statements to informant as a declaration against penal interest. Accomplice's statements implicating himself and defendants were specifically disserving.

CORE TERMS: gang, street, shooting, informant's, hearsay, enhancement, declarant's, telephone, penal interest, "testimonial" ...

21. People v. Conley, C070272, COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT, 2012 Cal. App. LEXIS 1246 Shepardize , November 8, 2012, Opinion Filed, The Publication Status of this Document has been Changed by the Court from Unpublished to Published December 10, 2012.

OVERVIEW: Although defendant argued he was illegally detained when police officer directed him to the side of the road, in light of brief intrusion on defendant's liberty and clear threat to defendant's and public's safety posed by apparently intoxicated man in the middle of a public road, directive was reasonable and did not constitute illegal detention.

CORE TERMS: sentence, driving, detention, truck, sentenced, alcohol, pound, intrusion, serving, public's safety ...

22. Friends of Aviara v. City of Carlsbad, D060167, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 1147 Shepardize , November 1, 2012, Opinion Filed

OVERVIEW: Court properly required a city to adopt timeline required by Gov. Code, § 65583, subd. (c), to remedy city's defect in its revision to housing element of general plan because the court was not required to order that city vacate its adoption of the revision and wait until land use elements could be amended before addressing its housing obligations.

CORE TERMS: general plan, housing element, housing, land use, inconsistency, revision, municipality, sites, timeline, planning ...

23. In re Destiny S., B239393, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 1144 Shepardize , October 31, 2012, Opinion Filed

OVERVIEW: Juvenile court should not have entered orders declaring a mother's child a dependent of the court under Welf. & Inst. Code, § 300, subd. (b), and placing the child with her maternal grandmother, where the record lacked any evidence that the child was at risk of suffering physical harm as the result of the mother's use of illegal drugs.

CORE TERMS: physical harm, substantial risk, marijuana, suffering, illness, substance abuse, tardiness, methamphetamine, undisputed, juvenile ...

24. In re D.B., C067353, COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT, 2012 Cal. App. LEXIS 1141 Shepardize , October 31, 2012, Opinion Filed, As modified Nov. 7, 2012., Modification order at In re D.B., 2012 Cal. App. LEXIS 1163 Shepardize (Cal. App. 3d Dist., Nov. 7, 2012)

OVERVIEW: Pursuant to Welf. & Inst. Code, § 733, subd. (c), defendant juvenile was ineligible for a division of juvenile facilities placement, as petition alleged, and juvenile court found, that he committed several offenses on more than one occasion, but the most recent occurring offense was not one described in Welf. & Inst. Code, § 707, subd. (b).

CORE TERMS: juvenile, occurring, wardship, violent, plain meaning, absurd results, eligibility, delinquent, offender, literal interpretation ...

25. People v. Washington, D060411, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 1142 Shepardize , October 31, 2012, Opinion Filed

OVERVIEW: In sentencing for battery causing serious bodily injury, an Illinois conviction for battery with the personal infliction of great bodily harm qualified as a serious felony, as defined in Pen. Code, § 1192.7, subd. (c)(8), because the term "great bodily harm" under Illinois law was synonymous with "great bodily injury" under California law.

CORE TERMS: bodily injury, bodily harm, serious felony, aggravated battery, prior convictions, battery, bruises, personally, lacerations, abrasions ...

26. Chino MHC, LP v. City of Chino, E053467, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION TWO, 2012 Cal. App. LEXIS 1145 Shepardize , October 31, 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 parts IV.A., VI., and VII.

OVERVIEW: City wrongly denied mobilehome park owner's Gov. Code, § 66427.5, application to convert its park to resident ownership based on the survey result because although the city was entitled to consider the results, it could not deny application based on them, as they showed that the conversion, although it did not have majority support, was not a sham.

CORE TERMS: conversion, resident, homeowner's, local agency, subdivider, sham, enrolled, ownership, mobilehome, ordinance ...

27. Styrene Information & Research Center v. Office of Environmental Health Hazard Assessment, C064301, COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT, 2012 Cal. App. LEXIS 1146 Shepardize , October 31, 2012, Opinion Filed, As modified Nov. 15, 2012., Modified by Styrene Information & Research Center v. Office of Environmental Health Hazard Assessment, 2012 Cal. App. LEXIS 1181 Shepardize (Cal. App. 3d Dist., Nov. 15, 2012)

OVERVIEW: Where the findings in a research monograph on which the Office of Environmental Health Hazard Assessment relied to list styrene and vinyl acetate as Group 2B chemicals (possibly carcinogenic to humans) did not satisfy the Proposition 65 standard, they could not properly be included on the list on the basis of the monograph's findings alone.

CORE TERMS: chemical, carcinogen, reproductive, carcinogenicity, causes cancer, toxicity, animal, styrene, sufficient evidence, monograph ...

28. Tuolumne Jobs & Small Business Alliance v. Superior Court, F063849, COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT, 2012 Cal. App. LEXIS 1138 Shepardize October 30, 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 parts IV., V., and VI.

OVERVIEW: When a city decided under Elec. Code, § 9214, subd. (a), to adopt an initiative instead of holding an election, California Environmental Quality Act, Pub. Resources Code, § 21000 et seq., review was required because the decision was not ministerial under Pub. Resources Code, § 21080, subd. (b)(1), and did not implicate Cal. Const., art. II, § 11.

CORE TERMS: initiative, voter, election, ministerial, environmental, ballot, electorate, demurrer, referendum, exemption ...

29. Ayyad v. Sprint Spectrum, L.P., A133824, COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FIVE, 2012 Cal. App. LEXIS 1127 Shepardize , October 29, 2012, Opinion Filed

OVERVIEW: Upon the affirmance of a new trial order in a consumer class action, the appellate court's directions on remand under Code Civ. Proc., § 43, restricted the issues to be retried to those identified in the new trial order. Thus, the trial court correctly denied a motion to compel arbitration because it was outside the scope of the remand directions.

CORE TERMS: remittitur, new trial, compel arbitration, arbitration, retrial, calculation, setoff, affirmance, prior opinion, order granting ...

30. See's Candy Shops, Inc. v. Superior Court, D060710, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 1132 Shepardize , October 29, 2012, Opinion Filed

OVERVIEW: Employer established a triable issue as to whether its timekeeping policy of rounding punch times to the nearest tenth of an hour was fair and neutral because its expert report concluded that the rounding rule was unbiased, most employees were fully compensated, and the majority of employees were paid for more time than their actual working time.

CORE TERMS: rounding, grace period, nearest-tenth, overtime, punch, time records, affirmative defenses, summary adjudication, minute, class members ...

31. Los Angeles County Dept. of Children & Family Services v. Superior Court, B241552, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION THREE, 2012 Cal. App. LEXIS 1184 Shepardize , October 29, 2012, Opinion Filed, The Publication Status of this Document has been Changed by the Court from Unpublished to Published November 15, 2012.

OVERVIEW: Father's child fell within the meaning of Welf. & Inst. Code, § 300, subd. (f), and juvenile court jurisdiction over child was warranted, where another child, a toddler, died while in his custody. Father's negligence in failing to seek immediate medical care for toddler was a substantial factor and hence a legal cause of toddler's death.

CORE TERMS: toddler's, juvenile, substantial factor, died, guardian's, neglect, dependency, custody, coroner, pain ...

32. People v. Salter, E054646, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION TWO, 2012 Cal. App. LEXIS 1123 Shepardize , October 26, 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 IV.

OVERVIEW: Absent evidence that defendant asserted that she was competent or that she wanted another attorney to advocate that position, defendant's due process rights under the Fourteenth Amendment, U.S. Const. 14th Amend., were not violated when defense counsel waived her trial rights over her objection at a Pen. Code, § 1368, competency hearing.

CORE TERMS: competency hearing, defense counsel, incompetent, competence, waive, competency, jury trial, incompetence, criminal proceedings, trial rights ...

33. Rony v. Costa, A128596, A128836, COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 1122 Shepardize , October 26, 2012, Opinion Filed

OVERVIEW: Substantial evidence supported a damages award under Civ. Code, § 3346, subd. (a), for injury to a cypress tree. After determining the diminution in value, an additional amount was properly included to compensate the owner for loss of aesthetics and functionality; Civ. Code, § 3333, was flexible enough to allow alternative measures as appropriate.

CORE TERMS: aesthetic, unlicensed person, attorney fees, cypress, treble damages, measure of damages, fee award, respondeat superior, compensate, timber ...

34. In re K.L., D061577, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 1114 Shepardize , October 25, 2012, Opinion Filed

OVERVIEW: Dependent child who had turned 18 did not qualify as a nonminor dependent under Welf. & Inst. Code, § 11400, subd. (v), at the time of a 12-month hearing because she was not yet participating in a transitional independent living case plan and court had not officially ordered a permanent plan of long-term foster care.

CORE TERMS: nonminor, dependent child, juvenile, reunification services, review hearings, physical custody, dependency, independent living, case plan, years of age ...

35. People v. Nunez, B235203, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SIX, 2012 Cal. App. LEXIS 1115 Shepardize , October 25, 2012, Opinion Filed

OVERVIEW: Where defendant was convicted of carjacking and assault with a deadly weapon, but was found legally insane at time of offenses, whether or not he was capable of forming criminal intent, his actions showed his use of a hammer to strike victim was incidental to the carjacking; he thus could not be separately punished therefor under Pen. Code, § 654.

CORE TERMS: hammer, multiple punishment, confinement, carjacking, maximum period of confinement, Criminal Law, assault, course of conduct, contemporaneous, enhancement ...

36. St. Paul Mercury Ins. Co. v. Mountain West Farm Bureau Mutual Ins. Co., B229345 consolidated w/B231919, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION THREE, 2012 Cal. App. LEXIS 1118 Shepardize , October 25, 2012, Opinion Filed

OVERVIEW: Trial court erred in awarding prejudgment interest to general contractor's insurer where subcontractor's insurer was not able to compute damages and its share of the loss was not certain, or capable of being made certain by calculation pursuant to Civ. Code, § 3287, subd. (a), until the court determined what method of allocation was most equitable.

CORE TERMS: insurer's, coverage, settlement, insured, equitable, duty to defend, trigger, framing, endorsement, roofing ...

37. In re Maricela H., B238635, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FIVE, 2012 Cal. App. LEXIS 1113 Shepardize , October 25, 2012, Opinion Filed

OVERVIEW: In a dependency case, substantial evidence supported a finding under Welf. & Inst. Code, § 300, subd. (b), that a teenager was at substantial risk of harm from the mother's inability to adequately supervise because when the mother learned the teenager engaged in dangerous behaviors, her responses were ineffectual. Neglect was not required.

CORE TERMS: parental, dependency, fault, supervise, juvenile, guardian, parental rights, adequately supervise, risks of harm, substantial risk ...

38. Maughan v. Correia, D058957, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 1103 Shepardize , October 24, 2012, Opinion Filed, CERTIFIED FOR PARTIAL PUBLICATION11 Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of Discussion parts A.-D.

OVERVIEW: Trial court incorrectly calculated a sister's minority interest in a corporation for purposes of determining her damages resulting from her brother's breach of an oral stock option agreement where it should have applied its 40 percent discount directly to value of additional minority interest she was entitled to purchase pursuant to the agreement.

CORE TERMS: stock option, hotel, minority discount, stock, ownership, discount, minority interest, calculation, market value, deducted ...

39. Singh v. Davi, C068120, COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT, 2012 Cal. App. LEXIS 1195 Shepardize , October 24, 2012, Opinion Filed, The Publication Status of this Document has been Changed by the Court from Unpublished to Published November 19, 2012.

OVERVIEW: Trial court properly set aside a decision of the Commissioner of the California Department of Real Estate that denied an applicant's application for a real estate broker's license where the Commissioner's decision to deny the license was improperly based solely on the nature of the applicant's prior crime, rather than his inadequate rehabilitation.

CORE TERMS: rehabilitation, license, broker's license, real estate, convicted, broker, dishonest, issuance, criminal convictions, public interest ...

40. Hodjat v. State Farm Mutual Automobile Ins. Co., B233996, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION EIGHT, 2012 Cal. App. LEXIS 1182 Shepardize , October 19, 2012, Opinion Filed, The Publication Status of this Document has been Changed by the Court from Unpublished to Published November 15, 2012.

OVERVIEW: Summary judgment against insureds was proper where they failed to establish a triable issue of material fact about whether insurer's denial of their claim was justified and about whether insurer's investigation and denial of claim was in bad faith; no reasonable jury could find in insureds' favor on insurer's defense of material misrepresentations.

CORE TERMS: summary judgment, material fact, repair, separate statement, triable issue, repaired, material misrepresentations, body shop, insured, theft-- ...

41. People v. Walker, H037287, COURT OF APPEAL OF CALIFORNIA, SIXTH APPELLATE DISTRICT, 2012 Cal. App. LEXIS 1190 Shepardize , October 18, 2012, Opinion Filed, As modified Nov. 15, 2012.

OVERVIEW: There was not reasonable suspicion to detain defendant when he disembarked from a train at a station in a high crime area because it was not sufficient that he allegedly resembled a person suspected of a sexual battery that occurred one week earlier at the same station. The Fourth Amendment required suppression of evidence from the stop.

CORE TERMS: deputy, detention, reasonable suspicion, station, fare, seizure, photograph--, arrest, sexual battery, train ...

42. Twenty-Nine Palms Enterprises Corp. v. Bardos, E051769, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION TWO, 2012 Cal. App. LEXIS 1173 Shepardize , October 11, 2012, Opinion Filed, The Publication Status of this Document has been Changed by the Court from Unpublished to Published November 8, 2012.

OVERVIEW: The unlicensed contractor statute, Bus. & Prof. Code, § 7031, was enforceable by a tribal entity on a contract for work done on tribal land because a tribe's sovereign immunity defense was reserved for the tribe; if a tribe seeks to sue a non-tribal entity in state court, then the non-tribal entity cannot assert a sovereign immunity defense.

CORE TERMS: license, contractor, tribe's, contractor's license, entity--, summary judgment, licensed, tribal, sovereign immunity, construction work ...

43. Barboni v. Tuomi, G045788, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE, 2012 Cal. App. LEXIS 1093 Shepardize , October 1, 2012, Opinion Filed, The Publication Status of this Document has been Changed by the Court from Unpublished to Published October 22, 2012.

OVERVIEW: Juror misconduct was not established under Code Civ. Proc., § 657, subd. 2, despite a declaration from a juror stating that the slip-and-fall verdict was influenced by considering insurance, because declarations from eight other jurors agreed that there was no extended discussion, no consideration of double recovery, and no impact on the verdict.

CORE TERMS: juror, declaration, misconduct, new trial, designation, juror misconduct, expert witnesses, admissible, double recovery, deliberations ...

44. Fink v. Shemtov, G045856, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE, 2012 Cal. App. LEXIS 1109 Shepardize , September 28, 2012, Opinion Filed, The Publication Status of this Document has been Changed by the Court from Unpublished to Published October 24, 2012.Rehearing denied by, Ordered published by Fink v. Shemtov, 2012 Cal. App. LEXIS 1112 Shepardize (Cal. App. 4th Dist., Oct. 24, 2012)

OVERVIEW: While acting as an individual debt collector in accordance with Civ. Code, § 1788.2, subd. (c), a creditor's assignee was permitted to prosecute the assigned collection claims in propria persona. He did not enter into a joint venture with the creditor and did not engage in the unauthorized practice of law under Bus. & Prof. Code, § 6125.

CORE TERMS: assignee, 'collection, assignor, assigned, practice of law, own name, statement of decision, unauthorized, prosecute, causes of action ...

45. Holland v. Jones, B241535, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 1099 Shepardize , September 27, 2012, Opinion Filed, The Publication Status of this Document has been Changed by the Court from Unpublished to Published October 23, 2012.

OVERVIEW: Because no exception applied, the litigation privilege barred a husband's libel action against his ex-wife based on statements she made in a declaration filed in their marital dissolution proceeding. The exception in Civ. Code, § 47, subd. (b)(1), was inapplicable because the statements concerned a party against whom affirmative relief was sought.

CORE TERMS: litigation privilege, marital, dissolution proceedings, malice, judicial proceeding, demurrer, affirmative relief, leave to amend, prayed, cause of action ...

46. People v. Simmons, C066770, COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT, 2012 Cal. App. LEXIS 1124 Shepardize , September 27, 2012, Opinion Filed, The Publication Status of this Document has been Changed by the Court from Unpublished to Published October 26, 2012.

OVERVIEW: Defendant's prosecution under Pen. Code, § 288, subd. (a), for committing a lewd or lascivious act on a minor was timely commenced prior to the victim's 28th birthday under Pen. Code, § 801.1, subd. (a), because the six-year statute of limitations in former Pen. Code, § 800, had not expired when former Pen. Code, § 803, subd. (h), extended it.

CORE TERMS: statute of limitations, limitations period, sentence, expired, punishable, statute of limitations, time-barred, felony, limitation of time, sex offenses ...

47. People v. Anguiano, D058578, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 1094 Shepardize , September 25, 2012, Opinion Filed, The Publication Status of this Document has been Changed by the Court from Unpublished to Published October 22, 2012.

OVERVIEW: Defendant's possession of personal use quantities of drugs while alone on a porch--offenses that were not gang related, although defendant was a gang member--was not street terrorism within the meaning of Pen. Code, § 186.22, subd. (a). The evidence was insufficient to support a conviction for street terrorism.

CORE TERMS: gang members, gang, street, terrorism, felonious, felony, felonious conduct--, gunshot residue, suppress, criminal conduct ...

48. Carson v. Mercury Ins. Co., G045795, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE, 2012 Cal. App. LEXIS 1100 Shepardize , September 24, 2012, Opinion Filed, The Publication Status of this Document has been Changed by the Court from Unpublished to Published October 23, 2012.

OVERVIEW: For purposes of insurance coverage, photographs of a damaged vehicle did not establish as a matter of common knowledge that the vehicle could never be repaired to a preaccident safe condition because a reasonable person would not inherently understand, for example, the causal relationship between particular welds and the restoration of crush zones.

CORE TERMS: repair, preaccident, repaired, insurer, good faith, coverage, insured, total loss, fair dealing, diminution ...

Index of actions without opinion

1. Miguel, S204179, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 11293 Shepardize , November 20, 2012, Filed

2. Anthony, S204670, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 11297 Shepardize , November 20, 2012, Filed

3. D. D., S204893, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 11332 Shepardize , November 20, 2012, Filed

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