California Official Reports: Electronic Advance Sheet - Court Opinions For Friday, June 29, 2012

California Official Reports: Electronic Advance Sheet - Court Opinions For Friday, June 29, 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. United Teachers of L.A. v. L.A. Unified Sch. Dist., S177403, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 6164 Shepardize , June 28, 2012, Filed

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

2. In re M.M., S177704, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 6163 Shepardize , June 28, 2012, Filed

CORE TERMS: public officer, security officer, peace officer, public office, law enforcement agencies, public school, school district, obstruct, resist, common law definition ...

3. People v. Souza, S076999, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 5203 Shepardize , May 31, 2012, Filed

OVERVIEW: Court did not err during defendant's first-degree murder and attempted premeditated murder trial in refusing his requested instructions on lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter, as there was no substantial evidence he acted under influence of a reasonable heat of passion invoked by victims' conduct.

CORE TERMS: juror, murder, death penalty, prospective juror, prosecutor, provocation, restitution, heat of passion, apartment, guilt ...

4. People v. Mena, S173973, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 5202 Shepardize , May 31, 2012, Filed

OVERVIEW: Defendant had the right to appeal the denial of his motion to compel a pretrial lineup because the denial fell within the scope of Pen. Code, § 1259 and he not required to seek interlocutory writ review in order to preserve the right of appeal. Any error from the denial was harmless under the Watson standard because prejudice was speculative.

CORE TERMS: lineup, identification, pretrial, discovery, writ review, writ relief, showup, preliminary hearing, prosecutor, harmless ...

5. Sharp v. Superior Court, S190646, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 5201 Shepardize , May 31, 2012, Filed

OVERVIEW: In a case in which petitioner pleaded not guilty by reason of insanity to several felonies, including murder with special circumstances, and proposed to call a mental health expert on the issue of sanity, Pen. Code, § 1054.3, subd. (b)(1), authorized the trial court to order defendant examined by a prosecution-retained mental health expert.

CORE TERMS: mental health, prosecution-retained, criminal action, phase, appointment, compelled, mental state, insanity, sanity, Criminal Law ...

6. People v. Jones, S076721, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 3995 Shepardize , May 7, 2012, Filed, Reported at People v. Jones (William Alfred), 2012 Cal. LEXIS 4860 Shepardize (Cal., May 7, 2012)

OVERVIEW: Admission of testimony of forensic pathologist who conducted victim's autopsy was not error, as his opinion provided informed forensic context that went beyond jurors' common fund of information and could have assisted in determining defendant's intent and timing in sexually assaulting victim, which was relevant to special circumstance allegations.

CORE TERMS: juror, phase, prospective juror's, death penalty, rape, murder, aggravating, mitigating, sentence, raped ...

7. 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

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

8. 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

CORE TERMS: probate, executor, attorney fees, personal representative, rescission, constructive fraud, fee agreement, rescind, State Bar Act, final report ...

9. Patterson v. Domino's Pizza, No. B235099, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SIX, 2012 Cal. App. LEXIS 753 Shepardize , June 27, 2012, Opinion Filed

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 ...

10. 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

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

11. 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

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 ...

12. In re A.G., D061239, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 758 Shepardize , June 14, 2012, Opinion Filed, The Publication Status of this Document has been Changed by the Court from Unpublished to Published June 27, 2012.

OVERVIEW: Juvenile court did not err in denying a presumed father of two boys reunification services. Dependency petitions alleged that the father sexually abused the boys' female sibling. There was substantial evidence to support the juvenile court's finding that Welf. & Inst. Code, § 361.5, subd. (b)(7), applied.

CORE TERMS: reunification services, sexual abuse, sibling, reunification, best interest, severe, juvenile, half sibling, dependency, offending ...

13. People v. Lazlo, A131741, COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FIVE, 2012 Cal. App. LEXIS 659 Shepardize , June 6, 2012, Opinion Filed

OVERVIEW: Evidence obtained from defendant's purse was properly admitted at her probation revocation hearing, even though it had been suppressed for purposes of new criminal charges, because the trial court explicitly found that the seizure did not shock the conscience. Proposition 8 has abrogated contrary case law under Pen. Code, § 1538.5, subd. (d).

CORE TERMS: exclusionary rule, seizure, suppressed, probation, probation revocation hearings, mandated, evidence obtained, suppression, suppress, truth-in-evidence" ...

14. Sourcecorp, Inc. v. Shill, C066982, COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT, 2012 Cal. App. LEXIS 657 Shepardize , June 6, 2012, Opinion Filed

OVERVIEW: In a case in which a judgment creditor had obtained a turnover order for cash discovered to be in the judgment debtor's home safe six years after the underlying judgment against the debtor had been obtained, the trial court correctly denied the debtor's motion to vacate the turnover order because the cash was not exempt from levy as earnings.

CORE TERMS: earnings, exempt, exemption, levy, garnishment, judgment debtor, traced, federal law, money judgment, tracing ...

15. People v. Mason, H036598, COURT OF APPEAL OF CALIFORNIA, SIXTH APPELLATE DISTRICT, 2012 Cal. App. LEXIS 653 Shepardize , June 5, 2012, Opinion Filed

OVERVIEW: Requiring a local arrestee (unlike state and county arrestees) to pay a booking fee without a showing of ability to pay did not violate equal protection principles because local arrestees were not similarly situated, given that under Gov. Code, § 29550.1, an arrest by a local agency automatically cut the arrestee's potential liability in half.

CORE TERMS: arrestee, booking, arresting, classification, ability to pay, sentencing, similarly situated groups, arrest, equal protection, "similarly situated" ...

16. Iskanian v. CLS Transportation Los Angeles, LLC, B235158, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION TWO, 2012 Cal. App. LEXIS 650 Shepardize , June 4, 2012, Opinion Filed

OVERVIEW: Federal Arbitration Act preemption did not allow an employee's arbitration agreement containing a class and representative action waiver to be found unconscionable under Code Civ. Proc., § 1281, based on interference with the ability to vindicate statutory rights. Preemption applied to representative claims under Lab. Code, § 2699, subd. (a).

CORE TERMS: arbitration, arbitration agreements, class action, compel arbitration, representative action, civil penalties, state law, private attorneys general, unconscionability, aggrieved ...

17. Nickell v. Matlock, B230321, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 649 Shepardize , June 4, 2012, Opinion Filed

OVERVIEW: Notwithstanding their status as defaulting defendants, occupants of property were entitled under Code Civ. Proc., § 764.010, to participate in a noticed evidentiary hearing to determine the merits of a quiet title action. Section 764.010 unambiguously precluded a traditional default prove-up and imposed an absolute ban on a judgment by default.

CORE TERMS: quiet, default, evidentiary hearing, default judgment, terminating, defaulting, discovery, prove-up, hear, quieting ...

18. People v. Vargas, B231338, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION EIGHT, 2012 Cal. App. LEXIS 651 Shepardize , June 4, 2012, Opinion Filed, CERTIFIED FOR PARTIAL PUBLICATION** Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for partial publication. This opinion is ordered published in its entirety except for part 5. of Discussion.

OVERVIEW: Although two prior strike convictions could have been imposed on all three of defendant's current offenses, the trial court mitigated the effects of the Three Strikes Law by dismissing both strike allegations as to two of the counts. Therefore, the failure to dismiss one of the allegations entirely was not an abuse of discretion.

CORE TERMS: sentence, carjacking, single acts, robbery, felony, multiple convictions, prior convictions, abuse of discretion, prior felony conviction, qualify ...

19. Healdsburg Citizens for Sustainable Solutions v. City of Healdsburg, A130374, COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FOUR, 2012 Cal. App. LEXIS 652 Shepardize , June 4, 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 II.B. and C.

OVERVIEW: After an environmental organization and two individuals successfully challenged a city's certification of an environmental impact report, the trial court did not abuse its discretion under Code Civ. Proc., § 1021.5, in awarding fees to the organization for the work of an attorney who was a member of the organization and an individual petitioner.

CORE TERMS: attorney fees, attorney general, equitable, attorney-client, attorneys' fees, environmental, conferred, public policies, public right, vindicate ...

20. Vanhooser v. Superior Court, B239677, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION THREE, 2012 Cal. App. LEXIS 648 Shepardize , June 1, 2012, Opinion Filed

OVERVIEW: Sole issue defendant's summary judgment motion raised in addressing a wife's cause of action for loss of consortium was whether summary judgment should be granted because asbestos exposure attributed to defendant ended well before the marriage began. Therefore, it was improper to grant summary judgment in favor of defendant.

CORE TERMS: cause of action, spouse, loss of consortium, disease, asbestos, mesothelioma, exposure, latent, marriage, loss of consortium ...

21. Cal Sierra Construction, Inc. v. Comerica Bank, C060707, COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT, 2012 Cal. App. LEXIS 641 Shepardize , May 31, 2012, Opinion Filed

OVERVIEW: A trial court erred in granting banks' motion to set aside a contractor's mechanics' lien and stop notice because, by permitting the banks to utilize the expedited Lambert procedure where their property interests were not at stake, the court deprived the contractor of its right to trial on its stop notice claim, in violation of due process of law.

CORE TERMS: stop notices, mechanic's lien, lender's, claimant, contractor, notice, property owner, recorded, new trial, unjustified ...

22. Apex LLC v. Sharing World, Inc., G045321, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE, 2012 Cal. App. LEXIS 655 Shepardize , May 31, 2012, Opinion Filed

OVERVIEW: When a buyer refused acceptance of all or a portion of cottonseed covered by relevant sales contracts, the seller immediately had the right to pursue its remedies under Cal. U. Com. Code, § 2706. Those remedies included reselling the cottonseed and recovering in damages the difference between the resale price and the contract price.

CORE TERMS: cottonseed, seller, shipment", delivery, customer, buyer, resale, commercially, condition precedent, sales contract ...

23. Barriga v. Superior Court, C068063, COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT, 2012 Cal. App. LEXIS 636 Shepardize , May 30, 2012, Opinion Filed, As modified June 7, 2012., Modified by Barriga v. Superior Court, 2012 Cal. App. LEXIS 662 Shepardize (Cal. App. 3d Dist., June 7, 2012)

OVERVIEW: Carjacking charge should have been dismissed as a multiple prosecution under Pen. Code, § 654, because the parties entered a plea agreement for a juvenile charge of resisting arrest arising from the same incident, and there was not substantial evidence that the People acted with due diligence in discovering text messages incriminating defendant.

CORE TERMS: diligence, phone, carjacking, multiple prosecution, cell, juvenile case, plea agreement, robbery, prosecuted, criminal case ...

24. City of Colton v. Singletary, E052377, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION TWO, 2012 Cal. App. LEXIS 637 Shepardize , May 30, 2012, Opinion Filed

OVERVIEW: As to causes of action involving the filing of a lawsuit, a Code Civ. Proc., § 425.16, anti-SLAPP motion was properly granted. The lawsuit was protected activity, and the Civ. Code, § 47, subd. (b), litigation privilege meant there was little probability of prevailing on claims that included an assertion its filing was an unfair business practice.

CORE TERMS: causes of action, lawsuit, cross-complaint, bribery, protected activity, attorney's fees, prevailing, injunction, infrastructure, probability ...

25. Thomas v. Stenberg, A132431, COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 631 Shepardize , May 29, 2012, Opinion Filed

OVERVIEW: In an action arising from a cow/motorcycle collision on a private road, the owners of the land did not have a duty under Civ. Code, § 1714 to keep the road clear in part because those who utilized the easement had consciously opted to do nothing to curb a herd that pastured regularly on both sides of the easement and had done so for decades.

CORE TERMS: cow, easement, cattle, animal, private road, motorcycle, fence, ranch, pasture, nonsuit ...

26. Summit Bank v. Rogers, A129800, COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FOUR, 2012 Cal. App. LEXIS 633 Shepardize , May 29, 2012, Opinion Filed

OVERVIEW: Comments on an Internet message board criticizing a bank and its management were not illegal as a matter of law under Fin. Code, § 1327, which was facially unconstitutional under the First Amendment as a vague and overbroad content-based law. The comments thus were not excluded from the reach of the anti-SLAPP statute, Code Civ. Proc., § 425.16.

CORE TERMS: defamation, protected speech, rumor, message, free speech, defamatory, malice, matter of law, criminal libel, content-based ...

27. Aleksick v. 7-Eleven, Inc., D059236, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 539 Shepardize , May 8, 2012, Opinion Filed

OVERVIEW: Because a worker cited California Labor Code wage statutes for the first time on appeal and did not allege in her complaint any statutory predicate for an unfair competition law, Bus. & Prof. Code, § 17200 et seq., cause of action, she forfeited an unlawful practices claim against her employer's franchisor relating to its payroll preparation.

CORE TERMS: 'unfair', payroll, summary judgment, minutes, employment relationship, predicate, unfair competition law, pay period, public policy, class members' ...

28. Sciborski v. Pacific Bell Directory, D056440, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 541 Shepardize , May 8, 2012, Opinion Filed, CERTIFIED FOR PARTIAL PUBLICATION** Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of Discussion part II., Rehearing denied by Sciborski v. Pac. Bell Directory, 2012 Cal. App. LEXIS 645 Shepardize (Cal. App. 4th Dist., May 30, 2012)

OVERVIEW: Employee's claim under Lab. Code, § 221, that her former employer improperly deducted money from her wages to recover a sales commission was not preempted by federal law because the determination of whether the employee earned the commission did not require an interpretation of an express provision of the collective bargaining agreement.

CORE TERMS: collective bargaining agreements, preemption, preempted, state law, sales commission, assigned, customer, earn, federal law, clerical error ...

29. Van de Kamps Coalition v. Board of Trustees of Los Angeles Community College Dist., B234955, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION TWO, 2012 Cal. App. LEXIS 656 Shepardize , May 8, 2012, Opinion Filed, The Publication Status of this Document has been Changed by the Court from Unpublished to Published June 5, 2012.

OVERVIEW: Board resolutions approving an interim use of the property and authorizing a five-year lease of part of the building constituted approval of a community college campus project for purposes of environmental review and triggered the 180-day limitations period in Pub. Resources Code, § 21167, subd. (d), for the filing of a mandate petition.

CORE TERMS: demurrer, limitations period, environmental, lease, project's approval, public agency, environmental review, discretionary, campus, site ...

30. Abatti v. Imperial Irrigation Dist., D058329, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE, 2012 Cal. App. LEXIS 496 Shepardize , April 26, 2012, Opinion Filed

OVERVIEW: After issuing a negative declaration with regard to a water distribution plan, an irrigation district was not required under Pub. Resources Code, § 21166, to prepare an environmental impact report prior to adopting revised water distribution regulations because the revision would not increase the priority of industrial users if a shortage occurred.

CORE TERMS: user, negative declaration, industrial, environmental review, causes of action, equitable, environmental, agricultural, water supply, estimated ...

31. Anchor Pacifica Management Co. v. Green, B237629, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SEVEN, 2012 Cal. App. LEXIS 462 Shepardize , April 23, 2012, Opinion Filed

OVERVIEW: Because a city actively participated in the low-income housing activities of an apartment complex developed on city-owned land, a low-income tenant had a protected property interest under the Fourteenth Amendment, U.S. Const., 14th Shepardize Amend., and under Cal. Const., art. I, § 7, subd. (a), and therefore could not be evicted without good cause.

CORE TERMS: tenant, housing, subsidy, property interest, lease, state action, rent, good cause, apartment, entitlement ...

Index of actions without opinion

1. Western States Petroleum Association v. State Board of Equalization, S200475, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 4654 Shepardize , May 16, 2012, Filed

2. Duran (Sam) v. U.S. Bank National Association, S200923, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 4635 Shepardize , May 16, 2012, Filed

3. Lake Forest, City of v. Evergreen Holistic Collective, S201454, SUPREME COURT OF CALIFORNIA, 2012 Cal. LEXIS 4728 Shepardize , May 16, 2012, Filed

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