California Official Reports: LexisNexis Electronic Advance Sheet For Feb. 21, 2012

California Official Reports: LexisNexis Electronic Advance Sheet For Feb. 21, 2012

Issue Date: Tuesday, February 21, 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
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Index of new California opinions:

1. People v. Brents, S093754, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1039 Shepardize , February 2, 2012, Filed

OVERVIEW: Kidnap-murder special circumstance finding was set aside because the jury was not properly instructed, under the 1995 version of Pen. Code, § 190.2, regarding the need to find an independent felonious purpose to kidnap the victim. The instruction was critical because the evidence of an independent purpose was only minimally sufficient.

CORE TERMS: kidnapping, murder, special circumstance, assault, trunk, sentence, photograph, felony, miles, gasoline ...

2. People v. Elliott, S027094, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1040 Shepardize , February 2, 2012, Filed

OVERVIEW: A trial court had not applied the wrong legal standard when denying defendant's motion to sever the charges against him relating to two robberies, and because defendant did not make a sufficiently compelling showing of prejudice to require severance under Pen. Code, § 954, denial of the severance motion was not error.

CORE TERMS: prosecutor's, juror, prospective juror, robbery, death penalty, questionnaire, peremptory, guilt, phase, supermarket ...

3. People v. Johnson, S188619, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 600 Shepardize , January 30, 2012, Filed, Reported at People v. Johnson (Andrew D.), 2012 Cal. LEXIS 1127 Shepardize (Cal., Jan. 30, 2012)

OVERVIEW: Because the record supported a trial court's findings regarding defendant's competence to represent himself, its ruling revoking his self-representation status was within its discretion; California courts could deny self-representation when the United States Constitution permitted such denial.

CORE TERMS: self-representation, competence, competency, stand trial, competent to stand trial, mental illness, severe, mental competence, Criminal Law, trial proceedings ...

4. People v. Cravens, S186661, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 601 Shepardize , January 30, 2012, Filed, Reported at People v. Cravens, 2012 Cal. LEXIS 1115 Shepardize (Cal., Jan. 30, 2012)

OVERVIEW: Evidence was sufficient for a jury to find that a single punch to the head involved implied malice for purposes of second degree murder under Pen. Code, § 187, subd. (a), because it was an extremely powerful blow to the head calculated to catch the impaired victim off guard, and thus deliver him directly and rapidly to the unforgiving pavement.

CORE TERMS: implied malice, punch, blow, murder, fight, degree murder, natural consequences, malice, dangerous to life, hit ...

5. Vandermost v. Bowen, S198387, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 572 Shepardize , January 27, 2012, Filed, Reported at Vandermost (Julie) v. Bowen (Debra)/(Citizens Redistricting Commission), 2012 Cal. LEXIS 1081 Shepardize (Cal., Jan. 27, 2012)

OVERVIEW: Citizens Redistricting Commission's certified Senate district map was most appropriate map to be used in 2012 state Senate elections even if a proposed referendum were to qualify for the ballot and trigger a stay of Commission's map. Commission-certified Senate districts were a product of an open, transparent and nonpartisan redistricting process.

CORE TERMS: map, referendum, qualify, election, ballot, redistricting, signature, interim, assembly, commission-certified ...

6. Retired Employees Assn. of Orange County, Inc. v. County of Orange, S184059, SUPREME COURT OF CALIFORNIA, 2011 Cal. LEXIS 12109 Shepardize, November 21, 2011, Filed, Reported at Retired Employees Association of Orange County, Inc. v. County of Orange, 2011 Cal. LEXIS 12189 Shepardize (Cal., Nov. 21, 2011)Remanded by Retired Emples. Ass'n of Orange County v. County of Orange, 2011 U.S. App. LEXIS 25121 Shepardize (9th Cir. Cal., Dec. 19, 2011)

OVERVIEW: In answering a certified question, the California Supreme Court concluded that, under California law, a vested right to health benefits for retired county employees can be implied under certain circumstances from a county ordinance or resolution.

CORE TERMS: ordinance, vested rights, premiums, implied contract, contractual rights, retired, pool, vested, health benefits, contractual ...

7. People v. Leavel, D058907, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 149 Shepardize , February 17, 2012, Filed

CORE TERMS: robbery, appointment, incidental, phone, kidnapping, mistrial, bedroom, appointed, kitchen, commit ...

8. Santa Monica Props. v. Santa Monica Rent Control Bd., B227868, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION EIGHT, 2012 Cal. App. LEXIS 142 Shepardize , February 16, 2012, Filed

CORE TERMS: rent, decrease, hearing examiner, tenant's, landlord's, reduction, hot, sauna, tub, housing ...

9. Ajamian v. Cantorco2e, A131025, COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FIVE, 2012 Cal. App. LEXIS 148 Shepardize , February 16, 2012, Filed

CORE TERMS: arbitration provision, employment agreement, arbitration, arbitrator, unconscionable, arbitration agreements, unconscionability, unmistakable, enforceability, arbitration clause ...

10. Allied Interstate v. Sessions Payroll Mgmt., B226134, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 146 Shepardize , February 16, 2012, Filed

CORE TERMS: rating, premium, bureau's, movie, payroll, insured's, modifier, personnel, rating plans, compensation insurance ...

11. Lewow v. Surfside III Condominium Owners Assn., Inc., No. B230595, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SIX, 2012 Cal. App. LEXIS 99 Shepardize , February 2, 2012, Filed

OVERVIEW: For good cause under Cal. Rules of Court, rule 3.1702(d), consisting of counsel's honest and reasonable mistake of law in believing that a bankruptcy stay tolled the 60-day filing period of Cal. Rules of Court, rules 3.1702(b), 8.104(a), the trial court had the power to extend time to file a motion for attorney fees, even after the 60-day period.

CORE TERMS: attorney fees, automatic stay, bankruptcy stay, good cause, commencement, notice, suspension, tolled, automatic, mistake of law ...

12. In re Marriage of Wahl & Perkins, H035712, COURT OF APPEAL OF CALIFORNIA, SIXTH APPELLATE DISTRICT, 2012 Cal. App. LEXIS 96 Shepardize , February 2, 2012, Filed

OVERVIEW: Based on a mother's overall conduct aimed at repudiating the trial court's orders and thwarting a settlement regarding custody and visitation, the trial court acted within its authority in sanctioning the mother under Fam. Code, § 271, without first holding her in contempt or finding that any particular harm had occurred as a result of her conduct.

CORE TERMS: declaration, custody, visitation, fax, coparent, attorney fees, coordinator, child custody, rescission, counselor ...

13. Maxton v. Western States Metals, B227000, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION THREE, 2012 Cal. App. LEXIS 94 Shepardize , February 1, 2012, Filed

OVERVIEW: Plaintiff, who worked with metal products manufactured by defendants, could not maintain his negligence and strict liability causes of action against defendants. The metal products were not dangerous when they left defendants' control. They only became dangerous because of the manufacturing process controlled by plaintiff's employer.

CORE TERMS: metal, supplier's, raw materials, asbestos, manufacturer, component parts, raw, inherently dangerous, products liability, strict liability ...

14. Chaaban v. Wet Seal, Inc., G044718, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE, 2012 Cal. App. LEXIS 84 Shepardize , January 31, 2012, Filed, CERTIFIED FOR PARTIAL PUBLICATION** Pursuant to California Rules of Court, rule 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part X.

OVERVIEW: After obtaining a defense verdict in a wrongful termination case after the employee rejected an offer to compromise, an employer could recover under Code Civ. Proc., § 998, subd. (c)(1), its expenses for deposing the employee's expert and obtaining a deposition transcript; the statute contained no limitation on the source of an expert.

CORE TERMS: deposition, reporter, expert fees, prevailing party, jury fees, reasonably necessary, travel, limine, trial testimony, expended ...

15. Lane v. Valverde, F061775, COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT, 2012 Cal. App. LEXIS 87 Shepardize , January 31, 2012, Filed

OVERVIEW: DMV was entitled to a presumption that blood alcohol tests were obtained by following the regulations and guidelines of the California Code of Regulations. Although the evidence showed a violation of the 10-day time requirement, Cal. Code Regs., tit. 17, § 1221.4, subd. (a)(2)(B), violation occurred more than 10 days following last accuracy test.

CORE TERMS: accuracy, testing, blood-alcohol, reliability, alcohol, driver, tested, test results, recorded, burdens of proof ...

16. Neves v. Department of Corrections and Rehabilitation, F061770, COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT, 2012 Cal. App. LEXIS 88 Shepardize , January 31, 2012, Filed

OVERVIEW: A correctional officer failed to demonstrate any violation of Gov. Code, § 3304, subd. (f), where he presented no evidence that the California Department of Corrections and Rehabilitation notified him of its decision to dismiss him more than 30 days after the dismissal decision, which was its formal notice of adverse action, was made.

CORE TERMS: discipline, notice, public safety officer, public agency, "notify, disciplinary action, notice of adverse action, impose discipline, misconduct, predisciplinary ...

17. T.W. v. Superior Court, D060636, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 92 Shepardize , January 31, 2012, Filed

OVERVIEW: Absent a finding of the juvenile court under Welf. & Inst. Code, § 366.26, subd. (n)(3)(B), that removing a dependent child from the licensed foster home of his prospective adoptive parent was in his best interests, the agency could not remove him based on its conclusion that the placement contravened Welf. & Inst. Code, § 16514, subd. (c).

CORE TERMS: placement, juvenile, adoptive parent, removal, social worker, foster home, foster, dependent child, child's best interests, best interests ...

18. Welch v. State Teachers' Retirement System, C062517, COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT, 2012 Cal. App. LEXIS 85 Shepardize , January 31, 2012, Filed

OVERVIEW: A teacher's 2005 application for disability benefits, arising from a 1998 attack by students, should have been remanded to the retirement board to decide whether to exercise its power under Ed. Code, § 22308, to relieve the teacher of the consequences of the late-filed application because a board representative misled the teacher about eligibility.

CORE TERMS: disability retirement, disabled, disability, misinformation, eligibility requirements, "omission", documentation, teacher, service credits, retirement ...

19. Bernard v. City of Oakland, A127853, A127844, COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 81 Shepardize , January 30, 2012, Filed

OVERVIEW: Because the California Public Employees' Retirement System was the administrative body charged with implementation pursuant to Gov. Code, §§ 20121, 22794, 22796, subd. (a), judicial deference was appropriate as to its interpretation of an amendment to Gov. Code, § 22892, subd. (c), which increased contributions to retirees' health care premiums.

CORE TERMS: annuitant, contracting agencies, premium, health care, employer contribution, statutory language, catchup, formula, monthly, public employees ...

20. People v. Indiana Lumbermens Mutual Ins. Co., B220199, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION THREE, 2012 Cal. App. LEXIS 82 Shepardize , January 30, 2012, Filed

OVERVIEW: Surety was not entitled to relief from forfeiture of a bail bond after the defendant failed to appear because consolidation under Pen. Code, § 954, of a separate robbery case as an additional count of the original robbery case was a duly authorized amendment of the original complaint within the meaning of the bond language.

CORE TERMS: surety, airport, bail, felony, consolidation, forfeiture, consolidated, exonerate, duly authorized, robbery count ...

21. M&F Fishing, Inc. v. Sea-Pac Ins. Managers, Inc., D056098, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 83 Shepardize , January 30, 2012, Filed

OVERVIEW: Brokers alleged to have unlawfully sold insurance from nonadmitted carriers could not be liable for restitution under Bus. & Prof. Code, § 17203, of premiums and commissions paid for insurance lawfully placed from admitted carriers. Restitution of premiums for nonadmitted coverage, which did not belong to the brokers, also could not be ordered.

CORE TERMS: coverage, restitution, premium, nonadmitted, carrier, broker, surplus, license, nonadmitted insurer, amend ...

22. People v. Geter, C066487, COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT, 2012 Cal. App. LEXIS 74 Shepardize , January 26, 2012, Filed, CERTIFIED FOR PARTIAL PUBLICATION** Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of part II of the Discussion.

OVERVIEW: Evidence was insufficient to convict defendant of grand theft from the person under Pen. Code, § 487, subd. (c), because the cash was not on the victim's person or in his actual physical possession when defendant snatched it. The victim had voluntarily given up possession of the cash to an automatic teller machine in which he was depositing it.

CORE TERMS: grand theft, theft, purse, assault, approached, robbery, grocery, petty theft, parking lot, assaulted ...

23. Tracy J. v. Superior Court, D060252, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 71 Shepardize , January 26, 2012, Filed

OVERVIEW: Because developmentally disabled parents had only limited and supervised visitation and were not instructed on how to recognize the child's asthma symptoms or given other needed services, substantial evidence did not support a finding that reasonable family reunification services had been offered or provided under Welf. & Inst. Code, § 366.21.

CORE TERMS: reunification services, visitation, disabled, juvenile, social worker's, review hearing, detriment, reunification, disability, reasonable services ...

24. Tverberg v. Fillner Construction, Inc., A120050, COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FOUR, 2012 Cal. App. LEXIS 75 Shepardize , January 26, 2012, Filed

OVERVIEW: In a personal injury action brought by an independent contractor against a general contractor, the independent contractor, who was injured when he fell into a bollard hole, offered sufficient evidence of a triable issue on affirmative contribution to injury to overcome a motion for summary judgment on a retained control theory of direct liability.

CORE TERMS: retained control, hirer, independent contractor, hole, contractor, bollard, summary judgment, affirmatively, canopy, hired ...

25. Christie v. Kimball, No. B230286, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SIX, 2012 Cal. App. LEXIS 72 Shepardize , January 26, 2012, Filed

OVERVIEW: Under Prob. Code, § 1304, subd. (a)(1), an order requiring a trustee to file an accounting was not appealable. Moreover, regardless of whether the party who requested the accounting was a beneficiary with standing to petition for an accounting, the probate court was empowered to require an accounting sua sponte pursuant to Prob. Code, § 17206.

CORE TERMS: accounting, probate, beneficiary, appealable, trust assets, family trust, sua sponte, duty to supervise, fiduciary duties, consolidated ...

26. People v. Thiessen, C065896, COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT, 2012 Cal. App. LEXIS 70 Shepardize , January 25, 2012, Filed, CERTIFIED FOR PARTIAL PUBLICATION** Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, the opinion is certified for publication with the exception of parts I through IV and part VI.

OVERVIEW: Substantial evidence supported finding that defendant personally used a firearm for purposes of the firearm enhancement set forth in Pen. Code, § 12022.53, subd. (b). By pointing a shotgun alongside codefendant as codefendant aimed a rifle at intended victim, and pulling trigger to make a "click" noise, defendant emboldened codefendant to shoot.

CORE TERMS: firearm, gun, enhancement, shotgun, detectives, shooting, rifle, sentences, shot, firearm enhancement ...

27. Cinel v. Christopher, B231679, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 144 Shepardize , January 20, 2012, Filed, The Publication Status of this Document has been Changed by the Court from Unpublished to Published February 16, 2012.

CORE TERMS: arbitration, petition to confirm, arbitrator, vacate, confirm, appealable, arbitration award, appealable order, arbitration proceedings, termination ...

28. In re Marriage of Walker, H036621, COURT OF APPEAL OF CALIFORNIA, SIXTH APPELLATE DISTRICT, 2012 Cal. App. LEXIS 100 Shepardize , January 10, 2012, Filed, The Publication Status of this Document has been Changed by the Court from Unpublished to Published February 2, 2012.

OVERVIEW: Because a disability allowance under Ed. Code, §§ 24006, 24213, subd. (a), paid to a teacher who was not eligible for service retirement did not provide retirement income but only replaced his lost earnings after separation and before retirement, which were his separate property, his wife had no community property interest in the allowance.

CORE TERMS: disability allowance, retirement, spouse, disabled, disability benefits, disability, property interest, marriage, earning, allowance ...

29. Davenport v. Superior Court, A131008, COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FOUR, 2012 Cal. App. LEXIS 4 Shepardize , January 5, 2012, Filed

OVERVIEW: Dismissal of sexually violent predator (SVP) petition was not required, even though the original SVP evaluations were prepared using an invalid protocol and replacement evaluations resulted in a split of opinion, because the original petition was properly filed under Welf. & Inst. Code, § 6601, and the superior court obtained jurisdiction.

CORE TERMS: protocol, invalid, sexually, violent, predator, split, cause hearing, probable, MDO Act, mental health professionals ...

30. The Flanders Foundation v. City of Carmel-by-the-Sea, H035818, COURT OF APPEAL OF CALIFORNIA, SIXTH APPELLATE DISTRICT, 2012 Cal. App. LEXIS 2 Shepardize , January 4, 2012, Filed

OVERVIEW: Certification of a final environmental impact report for a sale of a city-owned residence was invalid because the city's failure to respond to a suggestion in a comment that the residence could be sold with a smaller lot violated the city's duty under Cal. Code Regs., tit. 14, § 15088, subd. (c), to provide a good faith, reasoned analysis.

CORE TERMS: mansion, surplus land, feasibility, lease, parcel, environmental, environmental impact, infeasible, environmental impact report, conservation easements ...

31. Eiskamp v. Pajaro Valley Water Management Agency, H036624, COURT OF APPEAL OF CALIFORNIA, SIXTH APPELLATE DISTRICT, 2012 Cal. App. LEXIS 95 Shepardize , January 4, 2012, Filed, The Publication Status of this Document has been Changed by the Court from Unpublished to Published February 2, 2012.

OVERVIEW: In a validation action in which plaintiff challenged ordinance that increased groundwater augmentation charges, res judicata barred relitigation of plaintiff's causes of action. Judgment entered pursuant to stipulated agreement was binding and conclusive against agency and all other persons, Code Civ. Proc., § 870, subd. (a), including plaintiff.

CORE TERMS: ordinance, augmentation, lawsuit, validation, stipulated agreement, pending litigation, demurrer, res judicata, charges imposed, notice ...

32. Arnold v. Mutual of Omaha Ins. Co., A131440, COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION ONE, 2011 Cal. App. LEXIS 1647 Shepardize , December 30, 2011, Opinion Filed

OVERVIEW: Nonexclusive insurance agent was properly found to be an independent contractor, rather than an employee, under the common law test, because, among other things, the company had no significant right to control the manner by which the agent accomplished results. Because she was not an employee, the agent had no claim under Lab. Code, § 2802.

CORE TERMS: common law, independent contractor, causes of action, appointment, employment relationship, summary judgment, material fact, occupation, opposing, statutory definition ...

33. People v. Gregerson, G044661, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE, 2011 Cal. App. LEXIS 1631 Shepardize , December 22, 2011, Filed

OVERVIEW: In a case involving a mentally disordered offender, the trial court, which declined to place defendant in outpatient treatment pursuant to Pen. Code, § 2972, subd. (d), properly placed the burden of proof on defendant to show that outpatient treatment was safe and effective. However, it erred in applying the higher preponderance standard of proof.

CORE TERMS: outpatient treatment, burden of proof, offender, patient, safe, prisoner, mentally disordered, preponderance, substantial evidence, reasonable cause ...

34. American States Ins. Co. v. National Fire Ins. Co. of Hartford, D057673, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE, 2011 Cal. App. LEXIS 1649 Shepardize , December 14, 2011, Filed, The Publication Status of this Document has been Changed by the Court from Unpublished to Published January 6, 2012.

OVERVIEW: Timeliness of plaintiff's claim for equitable contribution was governed by two-year statute of limitations set forth in Code Civ. Proc., § 339, subd. 1. Because plaintiff did not contend its claim for equitable contribution accrued less than two years before it filed suit, its claim for equitable contribution was barred by statute of limitations.

CORE TERMS: insured, insurer, equitable, subrogation, equitable subrogation, indemnity, coverage, statute of limitations, primarily liable, coinsurer ...

35. Stiger v. Flippin, D058117, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE, 2011 Cal. App. LEXIS 1525 Shepardize , December 6, 2011, Filed

OVERVIEW: Medical Board of California had jurisdiction to investigate the circumstances underlying a peer review report required by Bus. & Prof. Code, § 805. This jurisdiction included the authority to investigate the timeliness of the filing of the report.

CORE TERMS: subpoena, investigate, investigative, unprofessional conduct, medical practices, timeliness, failure to file, investigatory, licensed, caption ...

36. Lopez v. Nissan North America, Inc., B225403, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FOUR, 2011 Cal. App. LEXIS 1514 Shepardize , December 5, 2011, Filed, Rehearing denied by Lopez v. Nissan N. Am., 2011 Cal. App. LEXIS 1658 Shepardize (Cal. App. 2d Dist., Dec. 30, 2011)

OVERVIEW: Car manufacturer was not liable for odometers that over registered mileage by two percent because the odometers were within the recommended four percent tolerance, and Bus. & Prof. Code, § 12500, subd. (c), was a safe harbor provision under which odometers were correct if they met that standard and were not deliberately miscalibrated.

CORE TERMS: odometer, tolerance, tire, manufacturer's, handbook, mileage, speed, safe harbor, consumer, accuracy ...

37. Maurizio R. v. L.C., B229324, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE, 2011 Cal. App. LEXIS 1519 Shepardize , December 5, 2011, Filed

OVERVIEW: Although record was sufficient to support a trial court's factual finding that an order returning a child alone to Italy would pose a grave risk to the child, undertakings imposed by the court in an effort to ameliorate that risk impermissibly hinged on abducting mother's cooperation, and required father to fulfill a requirement beyond his control.

CORE TERMS: convention, grave, custody, abduction, risk of harm, habitual, returning, psychological harm, psychological, abducting ...

38. Fantozzi Bros. v. San Joaquin Tomato Growers, Inc., F060260, COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT, 2011 Cal. App. LEXIS 1491 Shepardize , November 30, 2011, 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 B. of the Discussion.

OVERVIEW: Because a joint venturer in a tomato crop was a statutory producer and was not a commission merchant as defined in Food & Agr. Code, § 56105, it was not required to be licensed as a commission merchant under Food & Agr. Code, § 56181, even though the joint venture agreement entitled it to receive a commission for selling the tomatoes.

CORE TERMS: "commission merchant", joint venture, producer, tomatoes, crop, farm product, dealer, joint venturer, licensed, licensing requirement ...

39. Lonely Maiden Productions, LLC v. GoldenTree Asset Management, LP, B225782, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION TWO, 2011 Cal. App. LEXIS 1501 Shepardize , November 30, 2011, Filed

OVERVIEW: Payroll processing service agreements did not establish the existence of express trusts either in payroll funds or in a security deposit because the parties did not manifest intention to create trusts under Prob. Code, §§ 15200, subd. (b), 15201. Lenders with a perfected security interest in the accounts thus were entitled to foreclose on them.

CORE TERMS: film, service agreements, invoice, resulting trust, parol evidence rule, beneficial interest, transferor's, payroll, extrinsic evidence, express trust ...

40. SJCBC LLC v. Horwedel, H036369, COURT OF APPEAL OF CALIFORNIA, SIXTH APPELLATE DISTRICT, 2011 Cal. App. LEXIS 1494 Shepardize , November 30, 2011, Filed, As modified Dec. 21, 2011., Modified by Sjcbc v. Horwedel, 2011 Cal. App. LEXIS 1607 Shepardize (Cal. App. 6th Dist., Dec. 21, 2011)

OVERVIEW: Trial court erred in denying associations' petition for a writ of mandate on the ground that they failed to exhaust their administrative remedies where they could not have initiated the administrative review that they allegedly were required to exhaust, and the party authorized to do so did not do so before the associations sought judicial relief.

CORE TERMS: administrative remedies, notice, judicial review, administrative review, nuisance, abatement, initiate, exhaustion, marijuana, administrative process ...

41. Yavapai-Apache Nation v. Iipay Nation of Santa Ysabel, D058674, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE, 2011 Cal. App. LEXIS 1479 Shepardize , November 29, 2011, Filed

OVERVIEW: Although an American Indian tribe did not enact separate legislation to expressly reaffirm its previous waivers of sovereign immunity regarding a loan agreement when it executed an amendment consenting to the jurisdiction of California's courts, the amendment was sufficiently consistent with the loan agreement for the existing waivers to apply.

CORE TERMS: tribal, loan agreement, sovereign immunity, tribe, chairman, immunity, guaranty, waiver of sovereign immunity, authorization, waive ...

42. Sanchez v. Valencia Holding Co., LLC, B228027, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE, 2011 Cal. App. LEXIS 1467 Shepardize , November 23, 2011, Filed

OVERVIEW: In a car buyer's suit alleging violations of the Consumers Legal Remedies Act, Civ. Code, §§ 1750-1784, and other consumer protection laws, enforcement of an arbitration provision was properly refused under Code Civ. Proc., §§ 1281, 1281.2, because it contained multiple clauses favoring the dealer and was unconscionable under Civ. Code, § 1670.5.

CORE TERMS: arbitration, unconscionability, buyer, consumer--, arbitration provision, unconscionable, arbitrator, arbitration clauses, car dealer, injunction ...

43. Hopkins & Carley v. Gens, H032781, COURT OF APPEAL OF CALIFORNIA, SIXTH APPELLATE DISTRICT, 2011 Cal. App. LEXIS 1446 Shepardize , November 21, 2011, Filed

OVERVIEW: Trial court did not err in denying client's Code Civ. Proc., § 473, subd. (b), motion for relief from judgment against him in law firm's action for unpaid legal bills because, given that client was a lawyer, albeit one licensed in another state, his failure to discover his newly raised defense when acting as his own lawyer was inexcusable neglect.

CORE TERMS: notice, default, arbitration award, inadvertence, arbitration, existing law, ignorance, excusable neglect, declaration, ethical ...

44. Community Water Coalition v. Santa Cruz County Local Agency Formation Com., H036616, COURT OF APPEAL OF CALIFORNIA, SIXTH APPELLATE DISTRICT, 2011 Cal. App. LEXIS 1444 Shepardize , November 18, 2011, Filed, As modified Dec. 9, 2011., Modified and rehearing denied by Community Water Coalition v. Santa Cruz County Local Agency Formation Com., 2011 Cal. App. LEXIS 1542 Shepardize (Cal. App. 6th Dist., Dec. 9, 2011)

OVERVIEW: A local agency formation commission had power under Gov. Code, § 56375, to allow a prospective recipient of extraterritorial water and sewer services to initiate an application for approval in which the city joined. This practice was consistent with Gov. Code, § 56133, subd. (a), in that it required the city to request and receive written approval.

CORE TERMS: jurisdictional, sphere of influence, demurrer, approve, extraterritorial, local agency formation commission, extended services, written approval, authorize, legislative history ...

45. Cordero-Sacks v. Housing Authority of City of Los Angeles, B217191, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION EIGHT, 2011 Cal. App. LEXIS 1438 Shepardize ; 33 I.E.R. Cas. (BNA) 136 Shepardize , November 17, 2011, Filed, As modified Dec. 15, 2011., Modified and rehearing denied by Cordero-Sacks v. Housing Authority of City of Los Angeles, 2011 Cal. App. LEXIS 1574 Shepardize (Cal. App. 2d Dist., Dec. 15, 2011)

OVERVIEW: A judgment in favor of a former city housing authority employee in her action for retaliatory discharge under the California False Claims Act, Gov. Code, § 12650 et seq., was proper where it was sufficient that the employee was investigating another housing authority employee for what might have been the housing authority's false claim action.

CORE TERMS: false claim, retaliatory discharge, cause of action, attorney-client, qui tam, housing authority, retaliation, self-employment, mitigation, governmental agencies ...

Index of actions without opinion

1. People v. Linton, S080054, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1144 Shepardize , February 8, 2012, Filed

2. People v. Anderson, S138474, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1133 Shepardize , February 8, 2012, Filed

3. People v. Abbott, S141274, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1139 Shepardize , February 8, 2012, Filed

4. People v. Simon, S102166, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1136 Shepardize , February 8, 2012, Filed

5. People v. Chavez, S162506, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1141 Shepardize , February 8, 2012, Filed

6. People v. Chhoun & Pan (samreth Sam), S105403, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1137 Shepardize , February 8, 2012, Filed

7. People v. Nadey, S087560, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1135 Shepardize , February 8, 2012, Filed

8. People v. Hughes, S134792, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1134 Shepardize , February 8, 2012, Filed

9. People v. Acremant, S110804, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1142 Shepardize , February 8, 2012, Filed

10. Elliot, S192958, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1138 Shepardize , February 8, 2012, Filed

11. Romero, S197824, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1140 Shepardize , February 8, 2012, Filed

12. People v. Fuiava, S055652, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1152 Shepardize , February 6, 2012, Filed

13. Kirby v. Immoos Fire Prot., S185827, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1153 Shepardize , February 6, 2012, Filed

14. Hagan, S194163, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1151 Shepardize , February 6, 2012, Filed

15. Alpha & Omega Dev. v. Whillock Contr., S198540, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1154 Shepardize , February 6, 2012, Filed

16. People v. Enraca, S080947, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1150 Shepardize , February 6, 2012, Filed

17. People v. Elliott, S027094, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1147 Shepardize , February 2, 2012, Filed

18. People v. Brents, S093754, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1149 Shepardize , February 2, 2012, Filed

19. Davis v. Court of Appeal, S199806, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1146 Shepardize , February 2, 2012, Filed

20. Thompson, S199113, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1145 Shepardize , February 2, 2012, Filed

21. People v. Le, S197493, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1143 Shepardize , February 2, 2012, Filed

22. Wetlands v. City of L.A., S199392, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1148 Shepardize , February 2, 2012, Filed

23. Hotels Nev. v. L.A. Pac. Ctr., B224456, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION TWO, 2012 Cal. App. LEXIS 150 Shepardize , February 17, 2012, Filed

24. Sierra Club v. Calfornia Dep't Parks & Rec., B230095, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SIX, 2012 Cal. App. LEXIS 145 Shepardize , February 2, 2012, Filed

25. Cooper v. Custom Sensors & Tech., B231873, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SIX, 2012 Cal. App. LEXIS 147 Shepardize , January 31, 2012, Filed

26. 2156 Stratford Circle v. Aig, Inc., B219728, B227342, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION EIGHT, 2012 Cal. App. LEXIS 143 Shepardize , January 31, 2012, Filed

1. Pierce v. Court of Appeal, S199792, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1179 Shepardize , February 3, 2012, Filed

2. In re Cipro Cases I & II, S198616, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1156 Shepardize , February 3, 2012, Filed

3. Liam D., S198391, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1155 Shepardize , February 3, 2012, Filed

4. People v. Townsel, S022998, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1158 Shepardize , February 3, 2012, Filed

5. People v. Reed, S082776, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1164 Shepardize , February 3, 2012, Filed

6. People v. Rhoades, S082101, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1165 Shepardize , February 3, 2012, Filed

7. People v. Suarez, S105876, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1167 Shepardize , February 3, 2012, Filed

8. People v. Bell, S080056, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1166 Shepardize , February 3, 2012, Filed

9. People v. Pops & Wilson, S087533, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1159 Shepardize , February 3, 2012, Filed

10. People v. Winbush, S117489, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1163 Shepardize , February 3, 2012, Filed

11. People v. Banks, S080477, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1172 Shepardize , February 3, 2012, Filed

12. People v. Steskal, S122611, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1162 Shepardize , February 3, 2012, Filed

13. Thornton, S158512, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1174 Shepardize , February 3, 2012, Filed

14. Hinton, S195922, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1161 Shepardize , February 3, 2012, Filed

15. People v. Burgener, S179181, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1177 Shepardize , February 3, 2012, Filed

16. People v. Hin, S141519, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1170 Shepardize , February 3, 2012, Filed

17. Brownlee, S191765, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 1168 Shepardize  

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Comments

Anonymous
Anonymous
  • 03-06-2012

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