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Marty in the Morning Friday 21 February 2014
An exclusive look behind the scenes with Marty in the Morning. Click here to watch now and stay tuned!
Food with Neven Maguire.
You can find all of Neven's delicious recipes from the Marty in the Morning Friday programmes going back over the months, by clicking here.
Marty Meets Van Morrison in Belfast for an exclusive interview. Listen back here to part 1.
Listen back here to excerpts from the wonderful broadcasts from Naples & Pompeii,in association with The Travel department.
Marty takes the chill out of your early Winter mornings with music, news, weather and travel updates.
Below are some great gardening suggestions, tips and advice to help get you moving.
Gardening tips from listeners... winners of Spa Vouchers.
Monday 3rd October
Ellen Delaney. Fornaught. Donoughmore. Cork
Marty. My gardening tip is to collect as many seeds as possible from your garden or others, ready for
spring sowing. And marty the Magnificent Seven is the soundtrack to my youth in one channel land. Fabulous .
Tuesday 4th October
Patrick Hagin-Meade, Ballinteer, Dublin 16
Good morning Marty .
My tip is get someone in to do the gardening and go for a good long walk.!
Wednesday 5th October
Eileen Murray. Main St. Baltinglass. Co. Wicklow.
Marty. Always use the water that you have boiled eggs in to water your house plants. They'll do exceptionally well. Try it.
Thursday 6th October
Helen McMahon
if you have a flowering dogwood shrub or shrubs (cornus) don't be tempted to prune. just now. leave them flourish and enjoy the light coloured floaty leaves adding colour and light to
the garden...closer to December prune hard cutting long lengths of the vivid red branches..these branches are bendy and flexible (like your joints after using voltorol!) perfect for weaving into a
circular shape..weaving the lengths into a plaited wreath add other bits painted pine cones ribbon ivy holly etc makes a perfect seasonal decoration or gift! will dry out but can be used for years.
Friday 7th October
Libby Ireton, Castletroy, Limerick
Marty. My gardening tip is to gather up all those fallen leaves into a black bag {or two} Sprinkle on some water, and tie it securely. Put it in a corner out of sight, and every few weeks shake the bags and turn over. This time next year open the bags and spread the Leaf mould compost on your garden!
Walking & Winners of Spa Vouchers for the Voltarol Favourite walks promotion with Marty in September.
Title: Brideshead Theme
Performer(s): Burgon
Duration: 2:18
Title: Come Un Bel D Di Maggio From Andrea Ch?Nier
Performer(s): Giordano, Umberto
Duration: 3:35
Title: Rue De Dinan
Performer(s): Taylor, Martin
Duration: 5:49
Title: Secret Love
Performer(s): Webster P.F./ Fain Sammy
Duration: 3:47
Title: Woodbrook
Performer(s): O'Suilleabhain, Micheal
Duration: 3:47
Title: My Father
Performer(s): Collins, J.
Duration: 5:11
Title: Good Mornin'
Performer(s): Freed, Arthur/Brown, Nacio Herb
Duration: 3:38
Title: Isabella Valse Op34
Performer(s): Osborne, George Alexander
Duration: 2:26
Title: Knockin' On Heaven's Door
Performer(s): Dylan, Bob
Duration: 2:42
Title: O Mio Babbino Caro
Performer(s): Puccini, Giacomo
Duration: 3:10
Title: Soul Companion
Performer(s): Chapin Carpenter, Mary
Duration: 4:15
Title: Flight Of The Bumble Bee
Performer(s): Rimsky Korsakov, Nikolay
Duration: 1:40
Title: Fantasia On Greensleeves
Performer(s): Vaughan Williams, Ralph
Duration: 4:52
Title: I Could Have Danced All Night
Performer(s): Lerner, Alan Jay/Loewe, Frederick
Duration: 4:13
Title: Besame Mucho
Performer(s): Velazquez, Consuelo
Duration: 4:18
Title: Help Me
Performer(s): Joni Mitchell
Album: Hits
Duration: 3:37
Title: Don't Be That Way
Performer(s): Alberto Dominguez
Duration: 3:45
Title: My Baby Just Cares For Me
Performer(s): Kahn, Gus/Donaldson, Walter
Duration: 3:53
Title: O Soave Fanciulla, From La Boheme
Performer(s): Puccini, Giacomo
Duration: 4:26
Title: Hand Up Your Sticks
Performer(s): Cook, Peter
Duration: 2:36
Title: Begin The Beguine
Performer(s): Porter, Cole
Duration: 7:10
Title: Fly Me To The Moon
Performer(s): Howard, Bart
Duration: 2:46
Title: Spring (4 Seasons) (3rd Movement) Allegro
Performer(s): Vivaldi, Antonio
Duration: 4:23
Title: Gone Fishin'
Performer(s): Kenny, Charles/Kenny, Nick
Duration: 2:47
Title: Feeling Good
Performer(s): Newley/Bricusse
Duration: 3:12
Title: Gloria (Mass In C) Coronation
Performer(s): Mozart, Wolfgang Amadeus
Duration: 4:52
Title: The Ecstasy Of Gold (L'Estasi Dell'oro)
Performer(s): Morricone, Ennio
Duration: 3:39
email: email@example.com
Text: '51554'
We welcome your comments and requests.
Presenter: Marty Whelan
Producer: Sinead Wylde
Production Co-ordinator: Michael O' Kane


text:
09 December 2011, Friday, 16:18
author: news agency "Bashinform"
On December 9 the President of Bashkortostan has taken part in the gathering of the Council under the Plenipotentiary of the President of Russia in Volga federal district in the city of Yoshkar-Ola (Republic of Mari-Al) re "Ensuring of public security in the regions of Volga federal district", the public affairs service of the President RB reports.
The gathering was held under the chairmanship of the Plenipotentiary of the President of Russia in Volga federal district Gregory Rapota and the members of the Council – regional governors, chief federal inspectors, representatives of federal and regional ministries and agencies – were taking part in it.
At the beginning of the gathering Gregory Rapota has cited the data of the sociological polls, according to which 49,9% of the interrogated citizens of Russia don't feel themselves fully protected in the streets and more than 40% negatively estimate the activity of Russian law-enforcement bodies. In opinion of the Plenipotentiary this situation has to be cardinally changed and first of all it is necessary to change the public attitude to ensuring of public safety.

subset: commoncrawl


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Twitter Updates
- RT @ktumulty: Worst. Confirmation. Hearing. Ever. https://t.co/b01jiaNZeq 21 hours ago
- Kilroy was here! || Carrier parent co. says many of those jobs at that plant in IND will now be lost to automation. nyti.ms/2haGMVh 21 hours ago
- Gen. John Kelly is an excellent choice at Homeland Security! 21 hours ago
- ♬ 'Stand Back' - Nicks, Stevie ♪ 2 days ago
- Gotta say, Dr. Ben Carson for HUD is a dumb choice. 2 days ago


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TopAgencies @topagencies
RT @HudsonIntegratd: Happy Birthday, Chris! Enjoy these yummy cupcakes! https://t.co/VbBuq81t9Z
Top Interactive Agencies / Best Digital Agencies | December 9, 2016
Vordik is an award-winning web and mobile software company with a passion for engineering intuitive, scalable and interactive digital experiences. Our head office is based in Toronto, Canada and our European office is based in Kraków, Poland. Our specialized team


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Instead of the standard printing method, remix artist Scott Blake creates innovative flipbooks using nothing more than a hole punch to produce whirling animations. While best known for his Barcode Art, Scott Blake has been creating some seriously fantastic flipbooks, including some based on difficult and controversial topics. "A self-described 'frivolous artist,' he mows over conceptual and visual boundaries to make work that is as thought provoking as it is entertainingly tongue-in-cheek."
Visit Scott Blake's website for more info.
via [Visual News]


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It is with sadness and regret that we learned that photographer Glenn Jowitt died suddenly on 22nd July. Glenn is best known for his photography of Pacific people and their cultures, both in New Zealand and in the Pacific Islands. Glenn was born in 1955 in Upper Hutt. He studied art and design at the Ilam… Read more »
Posts categorized as News
Haere rā OurSpace
On Sunday we'll be saying goodbye to our multimedia exhibition OurSpace to make room for the next exciting step towards Te Papa's flagship exhibition commemorating 100 years since WWI. We are incredibly grateful to everyone who has contributed images and videos to OurSpace, which opened in 2008. More than 10,000 images and videos were provided so they could be… Read more »
Alien Power Source Discovered by NZ Photographer?
If you watched late night television towards the end of the 1960s you might remember the following theatrically pronounced lines: For [architect David Vincent] it began one lost night on a lonely country road, looking for a shortcut that he never found. It began with a closed deserted diner, and a man too long without… Read more »
Royal fashion trend-setters
When Prince George had his New Zealand playdate on 9 April his romper suit with sailboat smocked on the front, inspired parents to rush out and buy up the outfit by British designer Rachel Riley. Like many royals before his clothing both inspires and reflects the fashions of the time. A baby's 'first shirt' in Te Papa's collection,… Read more »
Ivan Mercep (1930 – 2014)
It is with sadness that we farewell the distinguished architect Ivan Mercep who died this week. As part of the original Jasmax concept group, he contributed extensively to the design of Te Papa that opened on Wellington's waterfront in 1998. The new building, a major construction project, was to house the new institution, Te Papa… Read more »
Granddad's visit
Continuing our series of blogs to mark the visit of the Duke and Duchess of Cambridge to New Zealand, I thought I would touch on one of the lesser known royal visits of the past, that of William's grandfather, the Duke of Edinburgh, in December 1956. The relative obscurity of the visit was matched by… Read more »
The 'Berry Boys' WWI soldier identification project: the story so far
The Berry Boys soldier identification project has progressed leaps and bounds since 2008, when a group of portraits of unidentified World War I soldiers first featured on Te Papa's website to mark the 90th anniversary of the signing of the Armistice. Getting the ball rolling We were able to inaugurate the detective work required to… Read more »
We know what you did this summer!!
Bart Cox and Jasmine Gibbins spent their summer researching native orchids at Te Papa. Bart and Jasmine are part of a group of seven students from Victoria University of Wellington that were awarded a Summer Research Scholarship co-funded by Te Papa and Victoria University of Wellington. Bart's research focused on a threatened perching orchid, Drymoanthus flavus, and its… Read more »
Alexis Hunter (1948-2014)
Te Papa is saddened to hear about the death of London-based New Zealand artist Alexis Hunter on 24 February 2014. Three years after completing her studies at the Elam School of Fine Arts at the University of Auckland in 1969, Hunter relocated to England and established herself in London. She was an active participant in… Read more »
The Berry Girls: Starring Miss Kathleen O'Brien
A few weeks ago we posted a couple of images from our Berry & Co photography collection of women dressed in uniform. Thanks to the power of the internet and the media we have been able to positively identify one of the women, and learn a little more about her life, and why she was photographed dressed… Read more »


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Nanometrics Inc. (NANO) Given Consensus Rating of "Hold" by Brokerages
Nanometrics Inc. (NASDAQ:NANO) has earned a consensus recommendation of "Hold" from the five ratings firms that are covering the stock. One research analyst has rated the stock with a sell recommendation, one has assigned a hold recommendation and three have issued a buy recommendation on the company. The average 1 year price objective among brokerages that have issued ratings on the stock in the last year is $21.33.
NANO has been the topic of a number of recent research reports. Stifel Nicolaus increased their price objective on shares of Nanometrics from $21.00 to $25.00 and gave the company a "buy" rating in a research note on Monday, June 27th. Zacks Investment Research downgraded shares of Nanometrics from a "hold" rating to a "sell" rating in a research note on Tuesday, September 27th.
Shares of Nanometrics (NASDAQ:NANO) traded down 5.680% during midday trading on Wednesday, reaching $20.175. 183,236 shares of the company's stock were exchanged. The stock's 50-day moving average is $21.37 and its 200 day moving average is $19.32. The firm has a market cap of $500.18 million, a PE ratio of 58.819 and a beta of 1.46. Nanometrics has a one year low of $12.50 and a one year high of $23.61.
Nanometrics (NASDAQ:NANO) last released its quarterly earnings data on Tuesday, July 26th. The company reported $0.26 earnings per share (EPS) for the quarter, missing the Zacks' consensus estimate of $0.27 by $0.01. Nanometrics had a net margin of 4.44% and a return on equity of 6.06%. The business had revenue of $55.80 million for the quarter, compared to the consensus estimate of $55.30 million. During the same quarter in the prior year, the business posted $0.08 earnings per share. Nanometrics's revenue for the quarter was up 14.8% on a year-over-year basis. Analysts anticipate that Nanometrics will post $0.99 EPS for the current year.
In other Nanometrics news, VP Stanislaw M. Borowicz sold 1,630 shares of the firm's stock in a transaction on Thursday, September 22nd. The shares were sold at an average price of $21.98, for a total value of $35,827.40. Following the completion of the transaction, the vice president now owns 44,433 shares of the company's stock, valued at $976,637.34. The transaction was disclosed in a filing with the SEC, which is available at this link. Also, CFO Jeff Andreson sold 5,010 shares of the firm's stock in a transaction on Thursday, September 22nd. The stock was sold at an average price of $22.50, for a total transaction of $112,725.00. The disclosure for this sale can be found here. 5.80% of the stock is currently owned by company insiders.
Several hedge funds and other institutional investors have recently bought and sold shares of NANO. Royce & Associates LP boosted its position in Nanometrics by 6.2% in the first quarter. Royce & Associates LP now owns 2,807,174 shares of the company's stock worth $44,466,000 after buying an additional 162,908 shares in the last quarter. BlackRock Fund Advisors boosted its position in Nanometrics by 3.6% in the second quarter. BlackRock Fund Advisors now owns 1,606,520 shares of the company's stock worth $33,400,000 after buying an additional 55,176 shares in the last quarter. Vanguard Group Inc. boosted its position in Nanometrics by 6.3% in the second quarter. Vanguard Group Inc. now owns 1,101,602 shares of the company's stock worth $22,903,000 after buying an additional 64,835 shares in the last quarter. Dimensional Fund Advisors LP boosted its position in Nanometrics by 2.3% in the second quarter. Dimensional Fund Advisors LP now owns 888,974 shares of the company's stock worth $18,481,000 after buying an additional 20,026 shares in the last quarter. Finally, State Street Corp boosted its position in Nanometrics by 2.5% in the second quarter. State Street Corp now owns 454,583 shares of the company's stock worth $9,450,000 after buying an additional 10,944 shares in the last quarter. 82.25% of the stock is owned by institutional investors and hedge funds.
About Nanometrics
Nanometrics Incorporated (Nanometrics) provides process control metrology and inspection systems used in the fabrication of integrated circuits, high-brightness light emitting diodes (HB-LEDs), discrete components and data storage devices. The Company operates in the segment of sale, design, manufacture, marketing and support of thin film and optical critical dimension systems.
Receive News & Stock Ratings for Nanometrics Inc. Daily - Enter your email address below to receive a concise daily summary of the latest news and analysts' ratings for Nanometrics Inc. and related stocks with our FREE daily email newsletter.


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- Size 17 x 3 x 2.5 cm.


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Dec 9
Dec 16
Dec 23
Dec 30
Sounds Like: Cab Calloway, Elvin Jones, Bessie Smith
Bio: Besides being a jitterbug, viper, swing, show band, we are the original and only trippy-swingadelic 1930's rock band on Planet Earth.
Francie Meaux Jeaux, bassist extraordinaire has played with Dan Hicks, Michelle Shocked, Bruce Robison, Kelly Willis and Maryann Price. She's a vet...See Full Bio
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Q's Day
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Real World article
(written from a Production point of view)
(written from a Production point of view)
Six-issue mini-series based on the hot new TV show.
Background informationEdit
- The stardate of this story sets it early in the second season, but a timeline published by DC Comics, changes the stardate of the story to 41198.3 so as to account for the appearance of Beverly Crusher, Natasha Yar, and William T. Riker without a beard. This story is set between "Encounter at Farpoint" and "The Naked Now".
- Based on Star Trek: The Next Generation created by Gene Roddenberry
- Writer: Michael Carlin
- Artists:
- Pablo Marcos (pencil art - interior and cover)
- Carlos Garzon (inking - interior and cover)
- Arne Starr (inking)
- Carl Gafford (color art)
- Bob Pinaha (letter art)
- Editor: Robert Greenberger
- Canon characters listed below are linked to the main article about them. Non-canon characters are not linked, but those that recurred, appearing or being mentioned in more than one story, are defined further in DC TNG volume 1 characters.
Regular and recurring charactersEdit
- Jean-Luc Picard
- USS Enterprise-D captain.
- William T. Riker
- Enterprise-D exec.
- Beverly Crusher
- Enterprise-D surgeon.
|Previous issue:
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text:
Beartrax continues to build momentum with his first Pet Project release of 2016. The Devil Descends has a deep, dark, and punchy vibe with its layers of 808 kicks, deep rolling basslines, and dark harmonic overlays. As the track builds into a crescendo of splashes and snares, the listener is taken over by vocal stabs and samples that create a perfect vibe for myriad dance floor scenarios. The b side is no slouch on this release either. The Larcenist is a full on assault of melody, beginning with a piano line that pulls the audience closer. As the track progresses, the signature sound of Beartrax's live violin enters the mix to provide the backdrop to a truly beautiful work of music.
- Release date: 2016-07-18
- Label: Pet Project Recordings
- Genre: Progressive House
- Quality: 320kbps / 44.1kHz / Full Stereo
Beartrax - The Devil Descends (Original Mix)
Beartrax - The Larcenist (Original Mix)download


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Join Us At Today's Iranian Alert Thread The Most Underreported Story Of The Year!
"If you want on or off this Iran ping list, Freepmail DoctorZin
Brownback is worth consideration.
Iran is the force behind the killing of 2,000 of our people in Iraq.
Will this government not spend $1500 for each who gave his life for America while lavishing twenty times that on Katrina "victims"?
Condi Rice, if you would be president, try some executive action right now.


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THIS IS A DIRECTORY PAGE. Britannica does not currently have an article on this topic.
Alternative Title: "Un cuore arido"
Learn about this topic in these articles:
place in Italian literature
...respects back to Federigo Tozzi. Especially typical of Cassola's works are Il taglio del bosco (1953; The Felling of the Forest), Un cuore arido (1961; An Arid Heart), and Un uomo solo (1978; "A Man by Himself").


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Assessment |
Biopsychology |
Comparative |
Cognitive |
Developmental |
Language |
Individual differences |
Personality |
Philosophy |
Social |
Methods | Statistics | Clinical | Educational | Industrial | Professional items | World psychology |
Biological: Behavioural genetics · Evolutionary psychology · Neuroanatomy · Neurochemistry · Neuroendocrinology · Neuroscience · Psychoneuroimmunology · Physiological Psychology · Psychopharmacology (Index, Outline)
|Chemical name
|Alternate name
|Chemical formula
|Molecular mass
|151.13 g/mol
|Melting point
|CAS number
Guanine is one of the five main nucleobases found in nucleic acids (e.g., DNA and RNA). Guanine is a purine derivative, and in Watson-Crick base pairing forms three hydrogen bonds with cytosine. Guanine "stacks" vertically with the other nucleobases via aromatic interactions. Guanine is a tautomer (see keto-enol tautomerism). The guanine nucleoside is called guanosine.
Guanine is also the name of a white amorphous substance found in the scales of certain fishes, the guano of sea-birds, and the liver and pancreas of mammals. In fact, the name of the nucleobase is derived from the term 'guano', because it was first isolated from bird manure.
In cosmetic industry, crystallic guanine is used as an additive to various products (eg. shampoos), where it provides the pearly iridescent effect. It provides shimmering lustre to eye shadow and nail polish. May irritate eyes. Its alternatives are synthetic pearl, and aluminium and bronze particles.
External linksEdit
|Nucleic acids edit
|Nucleobases: Adenine - Thymine - Uracil - Guanine - Cytosine - Purine - Pyrimidine
|Nucleosides: Adenosine - Uridine - Guanosine - Cytidine - Deoxyadenosine - Thymidine - Deoxyguanosine - Deoxycytidine
|Nucleotides: AMP - UMP - GMP - CMP - ADP - UDP - GDP - CDP - ATP - UTP - GTP - CTP - cAMP - cGMP
|Deoxynucleotides: dAMP - dTMP - dUMP - dGMP - dCMP - dADP - dTDP - dUDP - dGDP - dCDP - dATP - dTTP - dUTP - dGTP - dCTP
|Nucleic acids: DNA - RNA - LNA - PNA - mRNA - ncRNA - miRNA - rRNA - siRNA - tRNA - cDNA - snRNA - snoRNA - mtDNA - Oligonucleotide
ca:Guanina de:Guanin es:Guanina eo:Guanino fr:Guanine he:גואנין id:Guaninlt:Guaninas nl:Guaninept:Guanina (purina) sl:Gvanin sr:Гуанин sv:Guanin vi:Guaninezh:鳥嘌呤
|This page uses Creative Commons Licensed content from Wikipedia (view authors).


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DIJON - A1098013 - - Manhattan Please Share:TO BE DESTROYED 12/01/16 **AMAZING AVERAGE RATING!** A volunteer writes: My first walk of the day and I'm already in love with this sweet boy. So quiet in his kennel, his inviting soft face is welcoming. He's leashed easily, and out we go. Sweet and placid on leash, his first stop is taking care of his 'business', and we're off to the park. Dijon is a 'stop and smell the roses' kind of a
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my sister: what are you doing? me: just.. looking at some important stuff...
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170K 📈 The #NRL club membership tracker is keeping tabs on how all sixteen sides are faring - and we...
46 hours ago - 6 Likes
Fullback - William Zillman (Raiders) scored 3 tries, 185 metres gained
Outstanding performance from the youngster who tore the Knights apart.
Honourable mentions go to: Billy Slater, David Peachey, Brett Stewart and Rhys Wesser.
Wing - Nathan Merritt (Rabbitohs) scored 2 tries, 2 line breaks, 151 metres gained
Last year


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BBB (Big, Bold and Beautiful)
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United States District Court, N.D. New York
September 9, 2014
JEFFREY D. REYNOLDS, on behalf of himself and all others similarly situated, Plaintiff,v.XEROX EDUCATION SERVICES, INC., f/k/a ACS EDUCATION SERVICES, INC.; and WELLS FARGO BANK, N.A., Defendants.
MEMORANDUM-DECISION and ORDER
LAWRENCE E. KAHN, District Judge.
Plaintiff Jeffrey D. Reynolds ("Plaintiff") commenced this putative class action against Defendants Xerox Education Services, Inc., formerly known as ACS Education Services, Inc. ("XES" or "ACS"), and Wells Fargo Bank, N.A. ("Wells Fargo") (collectively, "Defendants"), alleging various causes of action relating to the servicing of his student loans. Dkt. Nos. 1 ("Original Complaint"); 50 ("Amended Complaint"). Now pending before the Court are Wells Fargo's Motion to dismiss Plaintiff's unjust enrichment claim and Defendants' Joint Motion to Dismiss the Amended Complaint. Dkt. Nos. 42 ("Wells Motion"); 55 ("Joint Motion"). For the following reasons, the Motions are denied.
A. Plaintiff's Consolidated Student Loan
Plaintiff is a resident of Virginia. Am. Compl. ¶ 7. On or around October 1992, Plaintiff consolidated his federal student loans with Signet Bank (the "Loan"). Id . Through a series of mergers and acquisitions, Wells Fargo became the owner of Plaintiff's Loan. Id . ¶¶ 7, 9. XES is a limited liability company incorporated in Delaware and headquartered in California. Id . ¶ 8; see also id. at 1. XES is the servicer of Plaintiff's Loan. Id . ¶ 8. XES maintains an office in Utica, NY. Id . Computer systems involved in the servicing of Plaintiff's Loan, as well as employees who corresponded with Plaintiff regarding his Loan, were both based at the Utica facility.[2] Id.
Plaintiff's Loan is a fixed interest rate loan with "level" stated payments. Id . ¶ 10. The Level Repayment Plan "is designed to allow the borrower to make payments of equal amounts throughout the payment period" and "provides the least amount of interest accrual over the life of the loan." Id . The original balance of Plaintiff's Loan was $22, 636.97, with an annual interest rate of 9.00%. Id . ¶ 11. From on or around 1992 to on or around 1999, the Loan was in deferment or forbearance ("Forbearance Period"). Id . The interest that accrued during the Forbearance Period was capitalized into the Loan before the Loan entered repayment. Id . At that time, a third party, as part of a college tuition reimbursement program, made a payment of $2, 865.29, which reduced the Loan principal to $30, 441.43 at the time repayment began. Id.
Plaintiff received a Loan Consolidation Disclosure Statement and Repayment Schedule from AFSA Data Corp.[3] dated September 28, 1999 ("September 1999 Disclosure Statement"). Id . ¶ 12. The September 1999 Disclosure Statement provided that, in order to repay the Loan in full, Plaintiff needed to make 215 monthly payments of $285.07 beginning on November 28, 1999, and one monthly payment of $283.56 on October 28, 2017. Id . It further provided that the total interest to be paid over the course of repayment was $31, 132.18, which, combined with the total principal of $30, 441.43, equaled a total repayment cost of $61, 573.61. Id . ¶ 13. Plaintiff began making monthly payments of $285.07 in November 1999. Id.
B. Misapplied Payments
In February 2012, Plaintiff noticed that his payoff balance was higher than the total of his 69 remaining payments. Id . ¶ 15. On or around February 4, 2012, Plaintiff called XES to inquire, and spoke to an employee at XES's Utica facility. Id . ¶ 15. A customer services supervisor confirmed that XES's computer system showed Plaintiff's final payment date as October 28, 2017, but the system also showed that the Loan would not be repaid in full as of that date. Id . ¶ 16. While the XES employee was trying to resolve this discrepancy, the XES computer system increased Plaintiff's monthly payment from $285.07 to $377.54. Id . The XES employee tried to change Plaintiff's monthly payment back to $285.07, but the computer system would not allow her to do so. Id . She advised Plaintiff that she would review his account and try to change his payment back to $285.07. Id.
On or around February 16, 2012, Plaintiff received another Disclosure Statement ("February 2012 Disclosure Statement"). Id . ¶ 17. It stated that Plaintiff's 69 remaining payments had been increased to approximately $377 each, resulting in an increased total repayment cost of $6, 300. Id . Around this time, Plaintiff received a call from the XES supervisor with whom he had previously spoken, and was informed that his account was still under review. Id.
On March 9, 2012, Plaintiff made another call to XES customer service, during which a different supervisor told him that she was unable to identify what was causing problems with his account, and that she would have the account reviewed. Id . ¶ 18.
Plaintiff called again on March 19, 2012, and spoke to a manager, who, although unable to determine the problem with Plaintiff's account, advised Plaintiff that he needed to continue making monthly payments of $377.54 while the account was under review. Id . ¶ 19.
On April 2, 2012, Plaintiff received another Disclosure Statement ("March 2012 Disclosure Statement"), which increased Plaintiff's 67 remaining payments to over $382 each. Id . ¶ 19. Plaintiff then called XES and spoke with yet another manager. Id . ¶ 20. This manager claimed that although he had identified and corrected the error in Plaintiff's account, he was waiting for final approval by upper management to correct and update the account. Id . ¶ 20. This anticipated approval never came. Id.
Plaintiff filed a complaint with the New York Better Business Bureau ("BBB") in July 2012. Id . After Plaintiff filed the BBB complaint, the manager who had identified the error in Plaintiff's account offered to reduce Plaintiff's monthly payment from $384 to $292, while extending the repayment term by 24 months. Id . ¶ 21. This change would result in the same total repayment cost as paying $384 per month over the original repayment term, i.e., an increased repayment cost of several thousand dollars compared to the repayment terms listed in the September 1999 Disclosure Statement. Id . ¶ 21. Plaintiff rejected this offer, and the manager then advised him that he was waiting to meet with someone at XES's legal department to see how Plaintiff's account could be corrected. Id . Months later, the manager called Plaintiff and told him that he was able to adjust Plaintiff's monthly payment to $291 while extending the repayment term with 18 additional payments. Id . ¶ 22. Plaintiff rejected this offer and informed the manager that he had submitted a complaint to the BBB. Id.
At the BBB's recommendation, Plaintiff requested and received an additional Disclosure Statement ("October 2012 Disclosure Statement"), which stated that Plaintiff now owed 84 monthly payments of approximately $300 each. Id . ¶ 23.
In early November 2012, Plaintiff received a letter ("October 2012 Letter") stating that XES had adjusted Plaintiff's account such that he would pay a maximum of $37, 620.59 in total interest, and that his monthly payments would be $291.91. Id . ¶ 24. The Letter did not state the number of remaining payments, but did say that Plaintiff had already paid $34, 189.41 in interest. Id.
In early December 2012, Plaintiff received another Disclosure Statement ("November 2012 Disclosure Statement"), which stated that Plaintiff had 82 remaining monthly payments of approximately $303 each. Id . ¶ 25. It further provided that Plaintiff still owed a projected $6, 340.08 in interest, which was nearly $3, 000 more than the amount listed in the October 2012 Letter, and approximately $9, 000 more than the total listed in the September 1999 Disclosure Statement. Id.
C. Procedural History
Plaintiff commenced this action in the U.S. District Court for the Southern District of New York on February 13, 2013, asserting claims for breach of contract and unjust enrichment on behalf of himself and all other similarly situated individuals. Original Compl. On September 19, 2013, the Honorable Harold Baer, U.S. District Judge, granted Defendants' request to transfer the case to the Northern District of New York. Dkt. No. 26. On September 15, 2013, Wells Fargo moved to dismiss Plaintiff's unjust enrichment claim. Wells Mot.; Dkt. No. 44. Plaintiff responded by filing the Amended Complaint, which omits the unjust enrichment claim and adds a deceptive-acts-orpractices claim under New York General Business Law ("GBL") § 349. Am. Compl. ¶¶ 43-49. Defendants then filed their Joint Motion pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), seeking to dismiss the breach of contract claim for lack of subject matter jurisdiction and the GBL § 349 claim for failure to state a claim. Joint Mot.; Dkt. No. 56 ("Memorandum"). In support of their Motion, Defendants submitted, among other things, an Offer of judgment made pursuant to Federal Rule of Civil Procedure 68 dated December 23, 2013. Dkt. No. 58-1 ("Offer"). Plaintiff responded and Defendants replied. Dkt. Nos. 62 ("Response"); 64 ("Reply").
A. Legal Standard
In reviewing a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a court "must accept as true all material factual allegations in the complaint, but [it is] not to draw inferences from the complaint favorable to plaintiffs." J.S. ex rel. N.S. v. Attica Cent. Schs. , 386 F.3d 107, 110 (2d Cir. 2004). A court "may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but [it] may not rely on conclusory or hearsay statements contained in the affidavits." Id . "Furthermore, jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.'" Gunst v. Seaga, No. 05 Civ. 2626 , 2007 WL 1032265, at *2 (S.D.N.Y. Mar. 30, 2007) (quoting Shipping Fin. Servs. Corp. v. Drakos , 140 F.3d 129, 131 (2d Cir. 1998)).
B. Discussion
Defendants argue that Plaintiff's breach of contract claim is moot because they have offered him judgment for the relief he seeks. Mem. at 4-8. Plaintiff responds that Defendants' Offer of judgment does not provide for complete relief, and therefore does not moot the action. Resp. at 5-8.
Federal Rule of Civil Procedure 68 provides that "a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued." FED. R. CIV. P. 68(a). If the opposing party accepts the offer, the clerk must enter the agreed-upon judgment. Id.
"Under Article III of the U.S. Constitution, when a case becomes moot, the federal courts lack subject matter jurisdiction over the action." Doyle v. Midland Credit Mgmt., Inc. , 722 F.3d 78, 80 (2d Cir. 2013) (internal quotation marks and alteration omitted). For instance, "if a defendant consents to judgment in the maximum amount for which the defendant could be held liable, there is no justification for taking the time of the court and the defendant in the pursuit of claims which the defendant has more than satisfied." Id . (internal quotation marks and alterations omitted). Accordingly, a Rule 68 offer of judgment may moot an action. See id. However, if the offer does not represent the maximum recovery available to the plaintiff in the action, the offer does not moot the action. Fernandez v. Peter J. Craig & Assocs., P.C. , 985 F.Supp.2d 363, 369 (E.D.N.Y. 2013).
Here, Defendants made an Offer to allow judgment to be entered in favor of Plaintiff, "on an individual basis only, " such that Plaintiff: (1) "need make payments of only $285.07 per month and one final payment of $283.56 on October 28, 2017"; (2) will receive a refund for the alleged overpayments; and (3) will receive prejudgment interest and costs. Offer at 1. In exchange, the Offer provides that this relief "shall be in full and complete satisfaction, release and discharge of any claim of the [Amended Complaint] as to which the alleged acts and/or omissions set forth... actually state a claim upon which relief can granted [sic]." Id . Plaintiff has not accepted the Offer. See Docket.
The Offer represents the maximum recovery available to Plaintiff on his breach of contract claim only, and excludes the additional damages available on a GBL § 349 claim. Offer; N.Y. GEN. BUS. LAW § 349(h) (providing for treble damages for willful and knowing violations); Am. Compl. ¶ 49 (seeking treble damages); see also Resp. at 6-8. Indeed, Defendants state in their Reply that the Offer considers only Plaintiff's breach of contract claim because Defendants contend that the Amended Complaint fails to state a GBL § 349 claim. Reply at 3 n.2. Because, as discussed infra, Defendants' Rule 12(b)(6) Motion to dismiss the GBL § 349 claim is denied, the Offer does not represent the maximum recovery available to Plaintiff on his claims in this action. See Hrivnak v. NCO Portfolio Mgmt., Inc. , 719 F.3d 564, 567 (6th Cir. 2013) ("An offer limited to the relief the defendant believes is appropriate does not suffice. The question is whether the defendant is willing to meet the plaintiff on his terms."). Defendants' Rule 12(b)(1) Motion to dismiss the action for mootness is therefore denied.[4]
To survive a motion to dismiss pursuant to Rule 12(b)(6), a "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)); see also FED. R. CIV. P. 12(b)(6). A court must accept as true the factual allegations contained in a complaint and draw all inferences in favor of a plaintiff. See Allaire Corp. v. Okumus , 433 F.3d 248, 249-50 (2d Cir. 2006). A complaint may be dismissed pursuant to Rule 12(b)(6) only where it appears that there are not "enough facts to state a claim to relief that is plausible on its face." Twombly , 550 U.S. at 570. Plausibility requires "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the alleged misconduct]." Id. at 556. The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal , 556 U.S. at 678 (citing Twombly , 550 U.S. at 556). "[T]he pleading standard Rule 8 announces does not require detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id . (citing Twombly , 550 U.S. at 555). Where a court is unable to infer more than the mere possibility of the alleged misconduct based on the pleaded facts, the pleader has not demonstrated that she is entitled to relief and the action is subject to dismissal. See id. at 678-79.
GBL § 349 prohibits "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service." N.Y. GEN. BUS. LAW § 349(a). To state a claim under § 349, "a plaintiff must demonstrate that (1) the defendant's deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result." Maurizio v. Goldsmith , 230 F.3d 518, 521 (2d Cir. 2000). Defendants argue that the Amended Complaint is insufficient as to each element. Mem. at 10-15. Additionally, Defendants argue that Plaintiff's claim against Wells Fargo fails because Plaintiff has not alleged that Wells Fargo committed a deceptive act in New York. Id. at 15-17.
1. Elements of Claim
a. Consumer Oriented
To satisfy the first element of a GBL § 349 claim, a plaintiff must allege "that defendants engaged in a consumer-oriented act, a requirement that has been construed liberally." Kapsis v. Am. Home Mortg. Servicing Inc. , 923 F.Supp.2d 430, 449 (E.D.N.Y. 2013) (internal quotation marks omitted). Consumer-oriented conduct has been defined as "conduct that potentially affects similarly situated consumers." SQKFC, Inc. v. Bell Atl. TriCon Leasing Corp. , 84 F.3d 629, 636 (2d Cir. 1996) (citation and internal quotations omitted). A plaintiff "need not show that the defendant committed the complained-of acts repeatedly-either to the same plaintiff or to other consumers-but instead must demonstrate that the acts or practices have a broader impact on consumers at large." Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A. , 647 N.E.2d 741, 744 (N.Y. 1995). Accordingly, "single shot transactions" or "private contract disputes" that are "unique to the parties" are not covered by the statute. Id .; Genesco Entm't v. Koch , 593 F.Supp. 743, 752 (S.D.N.Y. 1984).
Plaintiff has sufficiently alleged that the acts giving rise to his claim were directed at consumers. XES is in the business of servicing student loans, and it dealt with Plaintiff as it would with any other student borrower, including issuing him form documents and directing his questions and complaints through its customer service apparatus. See Cyphers v. Litton Loan Servicing, L.L.P. , 503 F.Supp.2d 547, 553 (N.D.N.Y. 2007) (finding consumer-oriented conduct where defendant was large operation in the business of servicing loans and had obtained the plaintiffs' loans, along with an unspecified number of other loans, as part of a pooling and servicing agreement with lenders); Oswego Laborers' Local 214 , 647 N.E.2d at 745 (finding consumer-oriented conduct where bank treated plaintiffs opening an account like any other customers, furnished them with standard documents presented to all customers opening an account, and account opening was not unique transaction). The allegedly improper crediting of Plaintiff's payments, and XES's failure to remedy the improprieties, arose from XES's computer systems, which are allegedly used to maintain the accounts of a broad class of consumers.[5] Am. Compl. ¶¶ 8, 26-32; see also Kapsis , 923 F.Supp.2d at 449 (finding general business practice aimed at the public where plaintiff alleged that loan servicer failed to properly credit payments on accounts, failed to timely respond to debtors' communications, and issued false or misleading monthly statements); Cyphers , 503 F.Supp.2d at 553. Plaintiff has therefore alleged sufficient facts to support the first element of his GBL § 349 claim.
b. Deceptive and Materially Misleading
To satisfy the second element of a GBL § 349 claim, a plaintiff must allege that the defendant engaged in an act or practice that was "deceptive or misleading in a material way." Oswego Laborers' Local 214 , 647 N.E.2d at 744. The New York Court of Appeals has adopted "an objective definition of deceptive acts and practices" that is limited "to those likely to mislead a reasonable consumer acting reasonably under the circumstances." Id. at 745.
Here, Plaintiff alleges that XES issued him an amortization schedule but did not adhere to the schedule in crediting his payments, causing Plaintiff to incur thousands of dollars in additional interest charges. Am. Compl. ¶ 2. This conduct is objectively deceptive and materially misleading.[6] See, e.g., Breitman v. XES, No. 12 CIV. 6583, 2013 WL 5420532, at *3 (S.D.N.Y. Sept. 27, 2013); Dolan v. Fairbanks Capital Corp., 930 F.Supp.2d 396, 419 (E.D.N.Y. 2013). Plaintiff has therefore alleged sufficient facts to support the second element of his GBL § 349 claim.
c. Injury
Defendants argue that Plaintiff has not established any actual injury because the Offer of judgment moots his breach of contract claim. See Mem. at 15. For the reasons stated supra, this argument fails. See supra § III.B.
Accordingly, the Amended Complaint alleges sufficient facts to support each element of a GBL § 349 claim.
2. Defendant Wells Fargo
Defendants further argue that Plaintiff's GBL § 349 claim fails against Wells Fargo because: (1) GBL § 349 does not cover claims between out-of-state parties based on out-of-state acts; and (2) Wells Fargo cannot be held liable for acts committed by XES. Mem. at 15-17.
a. Territorial Jurisdiction
Section 349 prohibits "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state " and provides a cause of action to " any person who has been injured" by a violation of the section. N.Y. GEN. BUS. LAW § 349(a), (h) (emphasis added). Therefore, "a deceptive transaction in New York falls within the territorial reach of section 349 and suffices to give an out-of-state victim who engaged in the transaction statutory standing to sue under section 349." Cruz v. FXDirectDealer, LLC , 720 F.3d 115, 123 (2d Cir. 2013). Plaintiff alleges multiple transactions originating from XES's New York operations, thereby satisfying the territorial jurisdiction requirement of GBL § 349. See generally Am. Compl. Additionally, for the reasons stated infra, Wells Fargo may be liable for the allegedly deceptive transactions committed by XES.
b. Vicarious Liability
Defendants argue that Wells Fargo-the owner of the Loan-cannot be held liable for allegedly deceptive acts committed by XES-the servicer of the Loan. Mem. at 16-17. Plaintiff responds that Wells Fargo can be held liable because XES was acting as Wells Fargo's agent. Resp. at 16-17.
Under New York law, a principal may be held liable for the torts of its agent committed within the scope of the agency. Bigio v. Coca-Cola Co. , 675 F.3d 163, 175 (2d Cir. 2012); see also Douyon v. N.Y. Med. Health Care, P.C. , 894 F.Supp.2d 245, 270 (E.D.N.Y. 2012) ("A principal may held liable for its agent's violations of N.Y. GBL § 349."). "[A]n agency relationship results from a manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and the consent by the other to act." Bigio , 675 F.3d at 175. "The key inquiry in determining the existence of an agency relationship is whether the principal exercised control over the agent with respect to the matters entrusted to the agent." Douyon , 894 F.Supp.2d at 270. "[T]he question of whether or not an agency relationship exists that is sufficient to bind the principal for the acts of the agent is very fact-specific, and no bright-line rules control.'" Wood v. Mustang Exp. Trucking, Inc., No. 00-CV-6433T, 2007 WL 655624, at *2 (W.D.N.Y. Feb. 26, 2007) (quoting Murray Hill Films, Inc. v. Martinair Holland, N.V., No. 86 Civ. 7477 , 1987 WL 14918, at *3 (S.D.N.Y., July 17, 1987)).
Here, Defendants argue that "the Amended Complaint is devoid of any factual allegations that suggest that Wells Fargo exercised control over" XES's allegedly flawed servicing system. Reply at 12. However, the Amended Complaint alleges that ACS/XES was and is "the servicer of the Consolidated Student Loan acting as an agent of the Consolidated Student Loan's prior owners Signet Bank, First Union, and Wachovia, and now Wells Fargo." Am. Compl. ¶ 8. Contrary to Defendants' assertions, an allegation that a party acted as a loan servicer may support an inference that the creditor exercised control over the servicer and is therefore liable as a principal for the servicer's torts. Warden v. PHH Mortg. Corp., No. 10-CV-75 , 2010 WL 3720128, at *4-5 (N.D. W.Va. Sept. 16, 2010) (finding that plaintiffs sufficiently pleaded principal/agent relationship between co-defendants based on allegation that co-defendants were servicer and owner of loan, respectively); see also In re Residential Capital, LLC, No. 12-12020, 2014 WL 1410310, at *3 (Bankr. S.D.N.Y. Apr. 14, 2014) (stating that "loan servicers typically are authorized to act as the agent for the owner of the note"); LFJ Realty Co. v. Bank of N.Y., 929 N.Y.S.2d 200, slip op. at 12 (Sup.Ct. Apr. 7, 2011) ("[C]ourts have either found [mortgage loan servicers] to be agents of the banks as a matter of law or held that factual issues were raised regarding the existence of an agency relationship."); cf. In re Kline , 420 B.R. 541, 548 (Bankr. D.N.M. 2009) (finding that knowledge of loan servicer can be imputed to lender based on agency theory). Accordingly, accepting the allegations in the Amended Complaint as true and drawing all reasonable factual inferences in Plaintiff's favor, see Allaire Corp. , 433 F.3d at 249-50, the Court finds that Plaintiff has sufficiently pleaded a principal/agency relationship between Defendants. Whether Wells Fargo actually exercised the requisite level of control over XES to establish its liability as a principal is a question of fact not resolvable on a motion to dismiss. See Wood, 2007 WL 655624, at *2.
Finally, the Court notes that Wells Fargo previously moved to dismiss Plaintiff's claim for unjust enrichment, Wells Mot., but that claim was subsequently withdrawn when Plaintiff filed the Amended Complaint, Am. Compl. Wells Fargo's Motion to dismiss the unjust enrichment claim is therefore denied as moot.
Accordingly, it is hereby:
ORDERED, that Defendant Well Fargo's Motion (Dkt. No. 42) to dismiss is DENIED as moot; and it is further
ORDERED, that Defendants' Joint Motion (Dkt. No. 55) to dismiss is DENIED in its entirety; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules.
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 16, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,v.TYRONE ADAM PALMER, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F01427)
P. v. Palmer
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The defendant was involved in the theft of a trailer and three road rage incidents, the last ending in a fatality. Convicted of second degree murder and several other crimes and sentenced to both determinate and indeterminate state prison terms, the defendant appeals.
On appeal, he contends: (1) there was insufficient evidence of implied malice to sustain the second degree murder conviction, (2) the trial court abused its discretion in denying his motion to sever the counts, (3) he was improperly convicted of two counts of hit and run for one incident, (4) he was improperly convicted of both stealing a trailer and receiving as stolen property the trailer's license plate, and (5) his stayed manslaughter conviction was improperly enhanced with two findings of great bodily injury,
We conclude that the third and fourth contentions have merit and therefore modify the judgment by striking a hit-and-run conviction and the receiving stolen property conviction. In all other respects, we find no error and therefore affirm the judgment as modified.
The defendant's crimes at issue in this case involved three incidents of road rage and one theft of a utility trailer, all occurring within about a week in October 2007.
October 6, 2007
James Holland was driving southbound on Watt Avenue when he noticed the defendant in a white Ford pickup approaching quickly from behind. The defendant went around Holland and just missed Holland's vehicle when pulling in front of him. Holland stopped behind the defendant at an intersection and yelled at the defendant to be more careful. The defendant yelled back something about his driving being the reason he had lost his license.
Holland began writing down the defendant's license plate number (Cal. license No. 7H16418), and the defendant backed the white pickup into Holland's vehicle. When the light turned green, they both took off. Holland caught up to the defendant, and the defendant veered to the right, hitting Holland's vehicle. The defendant pulled in behind Holland at another intersection and struck Holland's vehicle again.
October 10, 2007
Four days later, Betty Figlia was driving her vehicle north on Howe Avenue, with Sherry Lujan as a passenger. Figlia began to pull into a Valero gas station at the same time that the defendant, in the white Ford pickup, with a large trailer, was pulling out of the station. Figlia stopped because the defendant's truck was in the way, and she threw up her hands. The defendant pulled up beside Figlia's vehicle and asked her what her problem was. After they exchanged words, the defendant backed up then drove into the side of Figlia's vehicle. The defendant said, "How do you like that, bitch?"
The defendant drove away, and Figlia followed as Lujan dialed 911 on her phone. At an intersection, Figlia pulled in behind the defendant. The defendant backed the trailer into her car and then took off down a side street.
October 13, 2007
Three days after the Figlia/Lujan assault, the defendant was standing next to the white Ford pickup near Mineral Court at about four o'clock on a dark and foggy morning. A Honda Civic passed by, and someone in the Honda threw an egg at the defendant. Three young women were in the Honda: Saychelle Curry, Kailey McGagin, and Valerie Schmidt, with Curry driving. The young women had been celebrating Curry's 18th birthday, which celebration included drinking. The defendant got into the pickup and chased the Honda.
The defendant rammed the back of the Honda twice. A few blocks into the defendant's pursuit of the Honda, he was directly behind the Honda with his lights off. He passed the Honda and then stopped abruptly. Curry tried to pass the defendant, but he drove in front of her, so she turned around and headed in the other direction. The defendant again gave chase.
Curry and the defendant turned onto Winding Way and both passed Wanda Drewitz as she drove eastbound. The defendant passed Curry and moved in front of her. Curry appeared to lose control and veered across the road, hitting something on the left side of the road and then came back diagonally across all four lanes of Winding Way, ahead of the defendant. Drewitz observed these events, but she did not see where the Honda ended up. The defendant continued on Winding Way without stopping.
The Honda had crashed into a tree. The impact killed McGagin and critically injured Curry and Schmidt. Curry suffered traumatic brain injury and still cannot speak or walk. Schmidt suffered serious injuries to her face, head, and legs, but she recovered and was able to testify at the defendant's trial.
Evidence from the Honda's bumper and the bumper of the white Ford pickup indicated that the Ford had hit the Honda from behind.
The defendant made statements to his roommate, Jean Munyan, indicating that he had been involved in an accident. He appeared shocked when he saw a television news story about it. He told an acquaintance, Jeffrey Cooley, that he had chased a vehicle after he was egged and that he spun the vehicle out, causing the vehicle to crash. He said he thought he killed someone.
Also on October 13, 2007, and also on Mineral Court, a utility trailer was stolen from the Daby residence.
The defendant was detained on October 24, 2007. In the garage was a white Ford pickup that had been reported stolen a month before. The license plate on the back of the pickup and two more in the cab did not belong to the pickup. A later search of the defendant's storage space revealed three trailers and the license plate from the Daby trailer, but not the Daby trailer.
The defendant was charged by amended information with following counts:
Count one: murder of McGagin (Pen. Code, § 187, subd. (a))*fn1 ;
Count two: vehicular manslaughter of McGagin with gross negligence (§ 192, subd. (c)(1), with allegations that the crime also caused great bodily injury to Curry and Schmidt (§ 12022.7);
Count three: reckless driving causing bodily injury to Curry and Schmidt (Veh. Code, § 23105);
Count four: hit and run, resulting in death or permanent serious injury to Curry and McGagin (Veh. Code, § 20001, subd. (b)(2));
Count five: hit and run, resulting in serious injury to Schmidt (Veh. Code, § 20001, subd. (a));
Count six: theft of the Daby trailer (Veh. Code, § 10851, subd. (a));
Count seven: receiving stolen property -- the license plate from the Daby trailer (§ 496, subd. (a));
Count eight: assault with a deadly weapon on James Holland (§ 245, subd. (a)(1)), while personally using a deadly weapon (§ 1192.7, subd. (c)(23));
Count nine: assault with a deadly weapon on Betty Figlia (§ 245, subd. (a)(1)), while personally using a deadly weapon (§ 1192.7, subd. (c)(23));
The amended information also alleged two prior convictions with separate prison terms. (§ 667.5, subd. (b).)
The jury found the defendant guilty on all counts and associated allegations, with the murder found to be in the second degree.
The trial court sentenced the defendant to a total determinate term of seven years four months. The determinate term included consecutive terms for hit and run causing death or permanent injury (four years; count four), hit and run causing injury (eight months; count five), theft of the trailer (eight months; count six), and two counts of assault with a deadly weapon (one year each; counts eight and nine). The court stayed the vehicular manslaughter (count two), reckless driving (count three), and receiving stolen property (count seven) counts.
The court additionally sentenced the defendant to an indeterminate term of 15 years to life for second degree murder (count one).
On the prosecution's motion, the prior prison term allegations were dismissed.
Subjective Awareness of Risk to Human Life
The defendant contends that there was insufficient evidence to convict him of second degree murder because the evidence did not show that he had a subjective awareness of the risk his actions posed to human life. The contention is without merit. Indeed, this is not a close case.
"Murder is the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) "[M]alice may be express or implied." (§ 188). Malice "is implied[] when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (Ibid.) "Implied malice requires that the defendant act with a wanton disregard of the high probability of death. [Citations.]" (People v. Moore (2010) 187 Cal.App.4th 937, 941.) The defendant must "'"know[] that his conduct endangers the life of another and . . . act[] with conscious disregard for life."' [Citations.]" (People v. Martinez (2003) 31 Cal.4th 673, 684.)
"'Implied malice . . . may be proven by circumstantial evidence. [Citations.]' [Citation.]" (People v. James (1998) 62 Cal.App.4th 244, 277.) It may be found even if the act causes an accidental death. (People v. Contreras (1994) 26 Cal.App.4th 944, 954.) The rule of implied malice applies to vehicular homicide cases. When "the facts demonstrate a subjective awareness of the risk created, malice may be implied. [Citation.] In such cases, a murder charge is appropriate." (People v. Watson (1981) 30 Cal.3d 290, 298 (Watson).)
In Watson, the defendant consumed alcohol then drove recklessly, killing two people when he collided with their car. In a pretrial proceeding, the defendant argued that the facts did not support the charge of second degree murder. The court concluded that the defendant's conduct, "reasonably viewed, exhibited wantonness and a conscious disregard for life . . . ." (Watson, supra, Cal.3d at p. 295.) This supported a finding of implied malice, in turn justifying the murder charge against the defendant. (Ibid.)
The court in Watson "presumed" the "defendant was aware of the hazards of driving while intoxicated." (Watson, supra, 30 Cal.3d at p. 300.) It cited the defendant's conduct in driving through city streets at high speeds, his near collision with another car after running a red light, and his delayed attempt to brake before the fatal crash as "suggesting an actual awareness of the great risk of harm which he had created." (Id. at p. 301.) While many cases, including Watson, involve an intoxicated defendant or a high-speed chase, "the absence of intoxication or high speed flight from pursuing officers does not preclude a finding of malice. . . . Where other evidence shows 'a wanton disregard for life, and the facts demonstrate a subjective awareness of the risk created, malice may be implied.'" (People v. Contreras, supra, 26 Cal.App.4th at p. 955.)
When a defendant claims the evidence was insufficient to sustain the verdict, our role is to determine whether "substantial evidence supports the conclusion of the trier of fact . . . ." (People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1076.) "Substantial evidence is evidence that is '"reasonable, . . . credible, and of solid value."' [Citation.]" (People v. Medina (2009) 46 Cal.4th 913, 919.)
In support of his argument that there was no evidence he was subjectively aware of the risks of his driving, the defendant notes that in other cases courts relied on the defendant's drunk driving and prior traffic offense convictions to support an inference that the defendant was subjectively aware of the risks. He also notes that he was not drunk and did not have prior traffic offense convictions, pointing out that "there is no substantial evidence of facts typically relied upon to support an inference of subjective awareness." The defendant further argues that evidence of his prior low-speed collisions, which did not produce injury or death, does not support an inference that he was subjectively aware of the risks engendered in his later high-speed behaviors.
We agree with the defendant that this case is unlike many of the prior cases finding a subjective awareness of risk. We depart from the defendant's line of reasoning concerning the effect of those differences, however, because, in this case, the jury had plenty of evidence to conclude that the defendant actually attempted to cause the collision.
This case is unlike prior cases on this issue because, in those cases, the collision was accidental. In Watson, for example, the defendant drank then drove recklessly. Considering those circumstances, the court presumed that the defendant was aware of the risks involved in drunk driving -- the risks being that drunk driving could lead to unintended collisions and death.
Here, the defendant intended the collisions, and we may presume he knew, as does everyone, that high-speed collisions can lead to death. The record supports an inference that the defendant used the Ford he was driving to deliberately collide with the Honda, sending the Honda and three young women in it into a collision. Beyond that, even assuming for the sake of argument that the Honda's last movements were not the result of a collision, a collision took place at some point and the young women in the Honda were frantically fleeing the defendant's aggressive pursuit. The inference that the defendant knew he was putting the occupants of the Honda at risk of death is not only supported by the evidence but practically inescapable. (See People v. Moore, supra, 187 Cal.App.4th at pp. 940-941 [jury may presume defendant aware of obvious risks].)
Yet the defendant attempts to escape this line of reasoning by claiming that it applies a reasonable person standard instead of measuring whether this defendant actually was subjectively aware. We disagree. In the absence of even a scintilla of evidence to the contrary, the jury could conclude that the defendant actually comprehended what any rational person would comprehend concerning the risks. Therefore, his substantial evidence argument fails.
Motion to Sever
Before trial, the defendant moved to sever counts one through six, alleging crimes on October 13, 2007, including murder, from the counts charging crimes committed on other days. Defense counsel stated that the defendant wanted to testify concerning the events leading up to crash of the Honda, but he did not necessarily want to testify concerning the other charged crimes. He also stated that he wished to dispute the issue of identity as to the other counts while not disputing the issue of identity in the events leading up to the crash of the Honda. Finally, he claimed that the evidence of the earlier incidents was more prejudicial than probative. The trial court noted that the crimes charged were of the same class and were close in time, thus supporting joinder. It denied the motion because the events of October 6 and 10, 2007, were probative of issues relating to the events of October 13, 2007. The court reasoned that the evidence concerning the earlier events was more probative than prejudicial with respect to the later events.
The defendant asserts that the trial court abused its discretion by denying the motion to sever and that this abuse of discretion resulted in a denial of due process. We disagree. The counts were properly joined. Because we find that the issue of identity, alone, justified joinder, we need not consider other issues, such as intent or knowledge, that may also have justified joinder.
We review the denial of a severance motion for abuse of discretion. (People v. Osband (1996) 13 Cal.4th 622, 666.) "A court abuses its discretion when its ruling 'falls outside the bounds of reason.'" (Ibid.) Applying this standard, we conclude the court's ruling on the motion to sever was not an abuse of discretion.
Under section 954, "[a]n accusatory pleading may charge two or more different offenses connected together in their commission . . . or two or more different offenses of the same class of crimes or offenses, under separate counts, . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. . . ."
As relevant to this discussion, Evidence Code section 1101, subdivision (a) bars introduction of evidence of a person's character trait "when offered to prove his or her conduct on a specified occasion." But Evidence Code section 1101, subdivision (b) permits introduction of evidence "that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or accident . . .) other than his or her disposition to commit such an act."
Our Supreme Court in People v. Ewoldt (1994) 7 Cal.4th 380, at pages 402-403, explained the circumstances under which evidence of conduct other than that currently charged may be admissible to prove intent, common design or plan, or identity. Concerning proof of identity, the court stated: "For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] 'The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.' [Citation.]" (Id. at p. 403; see also People v. Catlin (2001) 26 Cal.4th 81, 111-112 [applying rule of Ewoldt in considering whether trial court properly denied motion to sever trial of separate crimes].)
Here, the undeniable similarities between the events of October 6 and 10, 2007, and the events of October 13, 2007, established the cross-admissibility of the evidence to establish the defendant's identity. The white Ford pickup, the raging response to perceived disrespect, the pursuit, the use of the pickup as a weapon, all lead to the conclusion that the same person committed the crimes. Accordingly, the pattern and characteristics of the crimes were like a signature and therefore supported the trial court's denial of the severance motion.
Despite this cross-admissibility, the defendant argues that the probative value of the earlier incidents to establish the defendant's identity in the later incidents, including the murder, was weak because it was merely cumulative. To support this argument, the defendant notes that he made statements to his roommate and an acquaintance that tended to show that he was involved in the later incidents. He therefore argues, relying on his assertion that the probative value of the earlier incidents was weak, that the evidence that he committed the earlier incidents should have been excluded pursuant to Evidence Code section 352, which provides for exclusion of evidence if the prejudicial effect substantially outweighs the probative value.
This argument fails because, as the prosecution argued during the hearing on the severance motion, there was no guarantee that jury would find the roommate and acquaintance believable. In any event, the evidence of the earlier incidents was very probative, supporting an inference that the defendant committed the later crimes. And the evidence concerning the earlier incidents was not prejudicial in the sense contained in Evidence Code section 352. (People v. Karis (1988) 46 Cal.3d 612, 638 ["prejudicial" term "applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues"].) Therefore, the trial court did not abuse its discretion pursuant to Evidence Code section 352.
As to the defendant's further due process argument, the defendant "has not established that joinder 'actually resulted in "gross unfairness" amounting to a denial of due process.' [Citations.]" (People v. Marshall (1997) 15 Cal.4th 1, 28.)
Separate Counts of Hit and Run
The defendant was convicted of two counts of felony hit and run (Veh. Code, § 20001), both arising from the October 13, 2007, incident in which McGagin was killed and Curry and Schmidt were injured. On appeal, the defendant contends that he could not lawfully be convicted of both counts because he violated the statute only once. The Attorney General agrees, as do we, based on People v. Newton (2007) 155 Cal.App.4th 1000, which held that the defendant could be convicted of only one count of felony hit and run when multiple victims were injured in a single accident. (See also Wilkoff v. Superior Court (1985) 38 Cal.3d 345 [same issue with respect to drunk driving conviction].)
Vehicle Code section 20001 prohibits leaving the scene of an injury accident without presenting identification, rendering aid, or reporting the accident. (See Veh. Code, §§ 20001, 20003, 20004.) The purpose of the statute is to prevent a driver involved in an injury accident from attempting to avoid civil or criminal liability. (People v. Powell (2010) 181 Cal.App.4th 304, 316.) And, when there is a single accident, "the conduct commanded by [Vehicle Code] section 20001, to stop, identify, and assist, is only committed once." (People v. Newton, supra, 155 Cal.App.4th at p. 1003.)
Accordingly, we strike the conviction in count five, under Vehicle Code section 20001, subdivision (a), along with the associated state prison term of eight months. This leaves in force the conviction in count four, under Vehicle Code section 20001, subdivision (b)(2), and the associated four-year term in state prison.
Receiving a Stolen License Plate
Similarly, the defendant was convicted of both stealing the Daby trailer (count six; Veh. Code, § 10851, subd. (a)) and receiving the license plate from that trailer as stolen property (count seven; § 496, subd. (a)). On appeal, the defendant contends that he could not be convicted of both crimes, and he frames this contention as a prejudicial failure on the part of the trial court to instruct the jury sua sponte that the actual thief may not be convicted of both stealing and receiving the stolen property. (§ 496, subd. (a).)*fn2 We agree, because there was no evidence that stealing the trailer and receiving the license plate as stolen property were separate acts. (See People v. Garza (2005) 35 Cal.4th 866, 872 [noting same error but finding it was not prejudicial because there was evidence of separate acts -- that is, that defendant drove vehicle after stealing it, also a violation of Veh. Code, § 10851, subd. (a)].)
The Daby trailer was stolen in the early morning hours of October 13, 2007. It was never recovered; however, the license plate from the trailer was found in a search of the defendant's storage unit. There was no evidence of what the defendant did with the trailer after the theft or that the defendant stole the license plate on a separate occasion. Therefore, the trial court should have instructed sua sponte that the defendant could not be convicted of both stealing the Daby trailer and receiving the license plate from that trailer as stolen property, and the failure to do so was prejudicial under any standard because it allowed the jury to convict of both crimes when the evidence was insufficient to support conviction of both.
Therefore, we strike the conviction in count seven, under section 496, subdivision (a), the punishment for which the trial court stayed under section 654. This leaves in force the conviction in count six, under Vehicle Code section 10851, subdivision (a), and the associated eight-month term in state prison.
Enhancement for Infliction of Great Bodily Injury
Section 12022.7, subdivision (a) provides: "Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony . . . shall be punished by an additional and consecutive term of imprisonment in the state prison for three years." Subdivision (g) of the same section states: "This section shall not apply to murder or manslaughter . . . ."
In connection with the count alleging manslaughter of McGagin (count two), the jury found that the defendant inflicted great bodily injury on Curry and Schmidt. (§ 12022.7.) The trial court, however, stayed the manslaughter count and associated enhancements pursuant to section 654 because it had imposed the indeterminate term for second degree murder. The defendant contends that the enhancements were improper because they were associated with the count charging him with McGagin's manslaughter. The contention is without merit.
In People v. Verlinde (2002) 100 Cal.App.4th 1146 (Fourth Dist., Div. One) (Verlinde), a jury convicted the defendant of the manslaughter of one of the passengers in her vehicle. The jury also found the defendant inflicted great bodily injuries within the meaning of section 12022.7, subdivision (a) on two surviving passengers. Relying on section 12022.7, subdivision (g), the defendant argued that because she was convicted of manslaughter, enhancements under section 12022.7 were not authorized. In rejecting this argument, the court stated that section 12022.7 "does not define a separate offense, but rather is a legislative attempt to punish more severely those crimes that result in great bodily injury 'on any person.' [Citations.] The language of section 12022.7, subdivision (g) does not limit application of the statute to this vehicular manslaughter case where, in addition to the homicide victim, two other victims suffered great bodily injury. The statutory exemption for murder and manslaughter is intended to bar imposition of an enhancement for the injuries inflicted on the homicide victim, who obviously has suffered great bodily injury. Thus, the statutory exemption prevents prohibited dual punishment for the same crime. [Citation.] 'When a defendant engages in violent conduct that injures several persons, he may be separately punished for injuring each of those persons, notwithstanding section 654. [Citation.]' [Citation.] [The defendant's] argument is inconsistent with a fundamental objective of our penal justice system, namely, 'that one's culpability and punishment should be commensurate with the gravity of both the criminal act undertaken and the resulting injuries.' [Citation.]" (Verlinde, supra, 100 Cal.App.4th at p. 1168.)
Therefore, according to the Verlinde court, section 12022.7 enhancements may be applied to a manslaughter count, but only for serious bodily injury inflicted on victims other than the manslaughter victim. Here, the section 12022.7 enhancements were based on the injuries to Curry and Schmidt, not the injuries to McGagin, the manslaughter victim.
However, the defendant asserts that we should not follow Verlinde, but should instead follow People v. Beltran (2000) 82 Cal.App.4th 693 (Second Dist., Div. Five) (Beltran) which, with no reasoning or analysis, summarily stated: "Under section 12022.7, subdivision (f) [now subdivision (g)] the enhancements could not be based on [the defendant's] conviction of vehicular manslaughter." (Id. at p. 695.)
The same contention was rejected in People v. Weaver (2007) 149 Cal.App.4th 1301, 1330-1331 (Fourth Dist., Div. One) (Weaver), in which the court held that a great bodily injury enhancement could be imposed under circumstances similar to this case. Concerning Beltran, the Weaver court (the same division that decided Verlinde) stated: "To the extent [the defendant] relies on [Beltran] as support for her contention, that case is inapposite and, in any event, we decline to apply its reasoning here because of our contrary reasoning in Verlinde. In Beltran, a section 12022.7, subdivision (c) allegation was found true as to each of the offenses of evasion of a pursuing police officer that caused serious injuries (Veh. Code, § 2800.3) and vehicular manslaughter (§ 192, subd. (c)(1)). (Beltran, at p. 695.) Without any substantive reasoning, Beltran first summarily concluded a section 12022.7 enhancement could not apply to the vehicular manslaughter offense regarding injuries sustained by a person other than the deceased victim because then section 12022.7, subdivision (f) (now subdivision (g)) provided section 12022.7 shall not apply to murder or manslaughter. (Beltran, at p. 696.) Based on our reasoning in Verlinde, quoted above, we disagree with that conclusion by Beltran and decline to apply it to this case." (Weaver, supra, at p. 1335, fn. 35.)
We agree with Verlinde and Weaver that section 12022.7, subdivision (g) was meant to prohibit dual punishment for the injuries inflicted on the homicide victim and therefore does not prohibit punishment for injuries inflicted on other victims. Accordingly, we reject the defendant's suggestion that we follow Beltran.
In any event, the section 12022.7 enhancements associated with the manslaughter count were stayed under section 654.
The judgment is modified by striking the convictions in (1) count five, under Vehicle Code section 20001, subdivision (a), along with the associated state prison term of eight months and (2) count seven, under section 496, subdivision (a), the punishment for which the trial court stayed under section 654. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and send a
certified copy to the Department of Corrections and Rehabilitation.
We concur: BLEASE , Acting P. J. DUARTE , J.
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