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+"{\"id\": \"1079964\", \"name\": \"DONALD BRUCE CRAWFORD, Plaintiff and Appellant, v. HUNTINGTON BEACH UNION HIGH SCHOOL DISTRICT et al., Defendants and Respondents\", \"name_abbreviation\": \"Crawford v. Huntington Beach Union High School District\", \"decision_date\": \"2002-05-31\", \"docket_number\": \"No. G028752\", \"first_page\": \"1275\", \"last_page\": \"1287\", \"citations\": \"98 Cal. App. 4th 1275\", \"volume\": \"98\", \"reporter\": \"California Appellate Reports, Fourth Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T18:26:00.500609+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"DONALD BRUCE CRAWFORD, Plaintiff and Appellant, v. HUNTINGTON BEACH UNION HIGH SCHOOL DISTRICT et al., Defendants and Respondents.\", \"head_matter\": \"[No. G028752.\\nFourth Dist., Div. Three.\\nMay 31, 2002.]\\nDONALD BRUCE CRAWFORD, Plaintiff and Appellant, v. HUNTINGTON BEACH UNION HIGH SCHOOL DISTRICT et al., Defendants and Respondents.\\nCounsel\\nPacific Legal Foundation, Sharon L. Browne and Stephen R. McCutcheon, Jr., for Plaintiff and Appellant.\\nRutan & Tucker, David C. Larsen and Terence J. Gallagher for Defendant and Respondent Huntington Beach Union High School District.\\nLinda A. Catatic, Marsha A. Bedwell and Joanne Lowe for Defendant and Respondent California Department of Education.\\nMunger, Tolies & Olson, Vilma S. Martinez, Allison B. Stein and Henry H. Gonzalez for The Educational Legal Alliance of the California School Boards Association as Amicus Curiae on behalf of Defendants and Respondents.\", \"word_count\": \"4273\", \"char_count\": \"27902\", \"text\": \"Opinion\\nSILLS, P. J.\\nDonald Bruce Crawford sued the Huntington Beach Union High School District and the California Department of Education (collectively the District unless the context indicates otherwise), contending the racial and ethnic balancing component of the District's open-transfer policy violates Proposition 209 (Cal. Const., art. I, \\u00a7 31). He appeals the judgment entered after the trial court denied his motion for summary judgment and granted the District's. We agree with his contention on appeal\\u2014that the policy violates Proposition 209. Accordingly, we reverse the judgment.\\nI\\nThe Transfer Policy\\nThe District has an open transfer policy for all its high schools. The open-transfer policy has a \\\"racial and ethnic balance\\\" component as required by section 35160.5 of the state Education Code. This statute dictates that \\\"school districts shall retain the authority to maintain appropriate racial and ethnic balances among their respective schools at the school districts' discretion or as specified in applicable court-ordered or voluntary desegregation plans.\\\"\\nThere are six high schools in the District, but the only high school affected by the one-for-one same race exchange policy, that is, has been declared \\\"ethnically isolated,\\\" is Westminster High School. The District has employed a private firm, Davis Demographics, to do demographic studies for it. This private firm uses, in the language of the firm's owner, Gregory Davis, in a declaration in the record, \\\"District data from student records of names, addresses, schools of attendance, and ethnicity,\\\" which has been \\\"stored in a computer program which can be utilized to generate statistical information based on race relative to each high school and its established geographic attendance area.\\\"\\nThe actual tables supplied by Davis Demographics for Westminster High School put every student into one of the following categories: (1) \\\"American Indian or Alaska Native\\\"; (2) the Asian sub-categories of (a) \\\"Japanese,\\\" (b) \\\"Korean,\\\" (c) \\\"Chinese,\\\" (d) \\\"Vietnamese,\\\" (e) \\\"Laotian\\\" and (f) \\\"Other Asian\\\"; (3) \\\"Hawaiian/Pacific Islander\\\"; (4) \\\"Filipino\\\"; (5) \\\"Mexican American Chicano Span. Sum.\\\" ; (6) \\\"Black Negroid Afro-American\\\"; and (7) \\\"Total White Students.\\\"\\nTo prevent an \\\"inappropriate\\\" racial and ethnic balance, the District restricts transfers to and from Westminster High School. If you are White and you live inside the high school's attendance area, you cannot transfer out unless another White student is willing to transfer in and take your place. If you are non-White and you live outside the high school's attendance area, you cannot transfer in unless another non-White student is willing to transfer out and you take that student's place.\\nDemographic studies calculated that, for the 1999-2000 academic year, the school's makeup was roughly four-tenths Vietnamese (41.1 percent, total Asian is 45.2 percent), three-tenths \\\"Mexican American Chicano Spanish Surname\\\" (30.5 percent), and one-sixth \\\"White\\\" (15.9 percent).\\nCrawford, a taxpayer in the District, brought this action in September 1999 to challenge the constitutionality of the one-for-one same race exchange policy under Proposition 209. Crawford and the District both brought motions for summary judgment. The District's motion largely relied on several pre-Proposition 209 cases decided under the state equal protection clause.\\nIn mid-December 2000, the trial court granted the District's motion and denied Crawford's. In a brief minute order, it ruled that the District's transfer policy was not prohibited under Proposition 209 and \\\"promotes a non-segregated public education.\\\" The formal order granting the District's motion stated that the court had considered the Supreme Court's recent opinion in Hi-Voltage Wire Works, Inc. v. City of San Jose (2000) 24 Cal.4th 537 [101 Cal.Rptr.2d 653, 12 P.3d 1068] (Hi-Voltage) and that the case \\\"had no application\\\" to the \\\"pending dispute.\\\"\\nH\\nCalifornia Law\\nCrawford contends the trial court erred in granting the District's summary judgment motion. He contends the racial balancing component of the District's open enrollment program violates Proposition 209. We agree.\\nThe voters adopted Proposition 209 in the November 1996 General Election. The initiative measure added section 31 to article I of the California Constitution, which states in relevant part: \\\"(a) The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.\\\"\\nIn Hi-Voltage, supra, 24 Cal.4th 537, the California Supreme Court applied a common and plain meaning approach to the words \\\"discriminate against, or grant preferential treatment to\\\" as used in Proposition 209. As of this writing, the only other published decision to substantively consider a challenge to a government program under Proposition 209 is Connerly v. State Personnel Bd. (2001) 92 Cal.App.4th 16 [112 Cal.Rptr.2d 5] (Connerly). Connerly involved challenges to several state government affirmative action programs, all of which were held to contravene Proposition 209.\\nIn Hi-Voltage, all seven members of our state's high court held that San Jose's contractor outreach program on behalf of \\\"women and minority business enterprises\\\" was unconstitutional under article I, section 31 of the state Constitution. (Hi-Voltage, supra, 24 Cal.4th at p. 562 [\\\"we remain persuaded the City's Program violates section 31\\\"]; id. at p. 572 (conc. opn. of Mosk, J.) [\\\"despite the legitimacy and even necessity of its end, the means that the city's program employs offend section 31\\\"]; id. at p. 575 (conc. opn. of Kennard, J.) [applying \\\"common meaning of 'preferential,' I agree . . . that the challenged program of the City of San Jose grants preferential treatment on the basis of race and sex in the operation of public contracting\\\"]; id. at p. 596 (conc. & dis. opn. of George, C. J.) [\\\"we must conclude that an outreach program directed to an audience on the basis of its members' race or gender constitutes a program that grants preferential treatment for purposes of article I, section 31\\\"].)\\nThe program considered by the high court in Hi-Voltage gave prospective bidders on city contracts a choice. They could, but were not required, to use a certain percentage of subcontractors who were women or members of ethnic minorities. Alternatively, they merely had to document their efforts to reach out to \\\"women and minority business enterprises\\\" to give them the opportunity to obtain a subcontract on the program. That meant simply giving notice to at least four businesses owned by women or members of a minority ethnic group. The teeth in the second choice was that if a prospective bidder rejected a low bid from a subcontractor owned by a woman or a member of a minority ethnic group, he had to give written reasons for the rejection. (Hi-Voltage, supra, 24 Cal.4th at p. 542.) The program had been prompted by a study that had shown \\\"a historical pattern of discrimination by prime contractors against minority-owned and women-owned subcontractors . . . with regard to public contracts awarded by the city.\\\" (Id. at p. 588 (conc. & dis. opn. of George, C. J.).)\\nIn Hi-Voltage, the city argued that its outreach program did not involve any \\\"overt discrimination.\\\" (Hi-Voltage, supra, 24 Cal.4th at p. 560, fn. 13.) The procedures were merely a device to \\\"screen\\\" for discrimination. (Id. at p. 544.) The city claimed that, operationally, the program merely expanded the pool of candidates to obtain subcontract jobs, but did \\\"not afford preferential treatment on the basis of race or gender in the actual selection process itself.\\\" (See id. at p. 593 (conc. & dis. opn. of George, C. J.).)\\nEven so, the court determined that the program contravened Proposition 209. The key constitutional language of the provision is in the words \\\"discriminate against or grant preferential treatment to.\\\" The court looked to the ordinary plain meaning of the key words. \\\"Discriminate\\\" means \\\"distinctions in treatment.\\\" A \\\"preference\\\" means the \\\" 'giving of priority or advantage to one person . . . over others.' \\\" (Hi-Voltage, supra, 24 Cal.4th at pp. 559-560; see also id. at p. 575 (conc. opn. of Kennard, J.).)\\nUsing the plain ordinary meaning of the words \\\"discriminate\\\" and \\\"preference,\\\" it was clear that, while the city's outreach program might not have involved, as the city claimed, any \\\"overt\\\" discrimination, it was still discriminatory and preferential. The program required prospective bidders to give \\\" 'personal attention' \\\" to potential subcontractors owned by women and members of minority ethnic' groups that was not required to be given to other businesses. (Hi-Voltage, supra, 24 Cal.4th at p. 544; see also id. at p. 590 (cone. & dis. opn. of George, C. J.) [agreeing that documentation component granted preferential treatment within the meaning of Prop. 209].) Requiring prospective bidders to give \\\"special assistance and information\\\" based on race or sex was enough to contravene Proposition 209. (Hi-Voltage, at p. 544.)\\nMoreover, as the Chief Justice pointed out, the program was also discriminatory in the incentives that it created. A prime contractor was given a \\\"strong incentive\\\" to grant preferential treatment to at least some prospective subcontractors owned by women or members of minority ethnic groups because it would allow the prime contractor to avoid the burdensome documentation requirements and to look good for future contracts. (See Hi-Voltage, supra, 24 Cal.4th at p. 592 (conc. & dis. opn. of George, C. J.).)\\nWhile the court made it clear that preferential treatment based on race or gender was impermissible in light of Proposition 209, it acknowledged its holding was \\\"necessarily limited to the form at issue here, which requires contractors to notify, solicit, and negotiate with [minority or female owned] subcontractors as well as justify rejection of their bids.\\\" (Hi-Voltage, supra, 24 Cal.4th at p. 565.) The court expressed \\\"no opinion regarding the permissible parameters\\\" of outreach efforts that would not offend Proposition 209. (Hi-Voltage, at p. 565.)\\nIn Connerly, supra, 92 Cal.App.4th 16 the appellate court reviewed five state government affirmative action programs. The court concluded Proposition 209 prevented the state from awarding public contracts, civil service positions, and employment promotions to \\\"favored groups\\\" on the basis of race or gender. (Connerly, supra, 92 Cal.App.4th at pp. 47-63.) Although the court severed and upheld certain elements of the challenged programs, most notably data collection and reporting requirements, it reiterated the core idea that \\\"racial classification is presumptively invalid, and the burden is on the government to demonstrate extraordinary justification. [Citations.]\\\" (Id. at p. 36.)\\nThe first of the programs under review in Connerly was a subcontracting program under the auspices of the state lottery requiring bidders for business with the state lottery commission to include specific plans \\\"to utilize subcontracts with socially and economically disadvantaged small business concerns.\\\" Race, ethnic and gender classifications were incorporated into the meaning of the phrase, \\\"socially and economically disadvantaged.\\\" (See Connerly, supra, 92 Cal.App.4th at pp. 47-48.) In theory White males could be included as persons who were \\\"socially and economically disadvantaged\\\" as well, but there were \\\"no definitional criteria, no application procedures, and no procedures for review.\\\" (Id. at p. 48.)\\nThe court held the program unconstitutional, because of the operational presumption of disadvantage. \\\"Even if such procedures [allowing White males to apply] were included in statute, the fact that some individuals must prove disadvantage while others are conclusively presumed to be disadvantaged based solely on race, ethnicity, and gender, established impermissible race, ethnicity, and gender classifications.\\\" (Connerly, supra, 92 Cal.App.4th at p. 48, italics added.)\\nThe next program reviewed by the Connerly court involved state contracts for professional bond services (essentially the folks who help the state sell its bonds to investors). The program operated much the same way as San Jose's government contract program did. If there was a bond service available without competitive bidding, the respective government department was required, at a minimum, to give notice to all women and minority enterprises who had listed their names with the awarding department. In short, they got \\\"special notice of the sale.\\\" (See Connerly, supra, 92 Cal.App.4th at p. 51.) And because they got special notice, the Connerly court held that the program contravened Proposition 209 because it involved the \\\"selective dissemination of information\\\" (Connerly, at p. 51.)\\nThe third program held unconstitutional in Connerly involved the state civil service generally. A general statute made each governmental agency \\\" 'responsible for establishing an effective affirmative action program.' \\\" (Connerly, supra, 92 Cal.App.4th at p. 53.) Each agency was supposed to establish \\\"goals and timetables to overcome identified underutilization of minorities and women.' \\\" (Id. at p. 55.)\\nThe court held that the duty imposed on \\\"every managerial employee, from first line supervisors on up, to attempt to achieve the agency or departmental goals\\\" of eliminating the \\\"underutilization\\\" was both violative of both Proposition 209 and equal protection. (Connerly, supra, 92 Cal.App.4th at p. 55.) It differed from a quota or set-aside \\\"only in degree.\\\" (Ibid.) It was still a \\\"line drawn on the basis of race and gender.\\\" (Ibid.)\\nNext, Connerly considered an affirmative action program for the state community college system. Each community college district was required to have a plan which ensured \\\"that district personnel participate in, and are committed to, the affirmative action employment program.\\\" (Connerly, supra, 92 Cal.App.4th at p. 58, citing Ed. Code \\u00a7 87102, subd. (a).) The plan included \\\"hiring goals and timetables for its implementation\\\" with the \\\"goal\\\" that by the year 2005 the community college system \\\"work force will reflect proportionately the adult population of the state.\\\" (Connerly, at p. 59.)\\nThe court held that having \\\"overall and continuing hiring goal[s]\\\" of making a given workforce \\\"proportionately reflect the adult population of the state\\\" was a violation of Proposition 209. (Connerly, supra, 92 Cal.App.4th at p. 59.) The \\\"goal of assuring participation by some specified percentage of a particular group merely because of its race or gender is 'discrimination for its own sake' \\\" and contravened both Proposition 209 and the state's equal protection clause. (Connerly, supra, at pp. 59-61.) The program was not a mere \\\"inclusive outreach\\\" effort because it utilized the suspect classifications of race, gender and ethnicity. Some groups were \\\"favored\\\" over others, because application processes were structured so that sufficient numbers of that group would end up being hired. (See id. at p. 61.)\\nWhile the Connerly court allowed mere data collection and reporting aspects of all the other programs to be severed from those programs and held constitutional, the reporting requirements in the community college program were \\\"entirely bound up and intermixed with the success of the preferential hiring scheme\\\" so that they could not be severed. Hence the community college reporting requirements were held to be unconstitutional. (Connerly, supra, 92 Cal.App.4th at p. 61.)\\nFinally, the Connerly court considered one last reporting requirement, this one in connection with \\\"participation goals\\\" for state contracts. (Connerly, supra, 92 Cal.App.4th at p. 62.) Unlike the reporting requirement for the community colleges, this data collection program could be severed from otherwise discriminatory participation goals. The reason was that it went to the Legislature's \\\"power of inquiry.\\\" (See Connerly, supra, 92 Cal.App.4th at pp. 62-63.) The fact that data is \\\"collected and reported\\\" to the Legislature could only be of use to that body for future consideration, it is not a \\\"supervisorial device\\\" necessarily intertwined with a discriminatory program. (Id. at p. 63.)\\nm\\nOur Case\\nThe District insists Hi-Voltage and Connerly are inapplicable to the facts before us. It argues its policy is not analogous to the outreach programs addressed in those cases and characterizes the transfer policy as a permissible voluntary desegregation program that neither discriminates nor grants preferential treatment based on race. The District asserts that because \\\"each school has the same general educational program and provides the same educational opportunities,\\\" there is no evidence that some students are \\\"disadvantaged\\\" by or \\\"benefit\\\" from the race-conscious transfer policy. (Page 31 of the District's brief.) The District further maintains the policy is simply a race-conscious program that seeks to provide students with equal educational opportunities. We do not agree.\\nUnder the policy, White student open enrollment transfers out of the school and non-White student transfers into the school are limited to a one-for-one basis. The imposition of these restrictions is inconsistent with the freedom of choice that voluntary programs provide. And more importantly, the policy creates different transfer criteria for students solely on the basis of their race. A White student may not transfer from Westminster High School to a different school until a White student chooses to transfer in and fills the void. A non-White student must wait to transfer into Westminster High School until a non-White student transfers out thereby creating essentially a \\\"non-White opening.\\\"\\nReferencing its history, the District asserts Proposition 209 was never intended to eliminate school integration programs. Yet, by its terms, article I, section 31 of the state Constitution, applies to public education. Subdivision (a) of section 31 plainly says that \\\"The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of . . . public education . . . .\\\"\\nThe ballot materials concerning Proposition 209 were quite clear that even race-conscious \\\"desegregation\\\" programs could be affected by Proposition 209. The Legislative Analyst prepared an in-depth analysis. That analysis, as Chief Justice George put it, is precisely \\\"the item in the ballot pamphlet materials that voters are most likely to have . . . consulted as a reliable indicator of the proposition's meaning and effect.\\\" (Hi-Voltage, supra, 24 Cal.4th at p. 582 (con. & dis. opn. of George, C. J.).) And that analysis had told the voters that \\\" 'the measure could eliminate, or cause fundamental changes to, voluntary desegregation programs run by school districts.' \\\" (Id. at p. 584 (conc. & dis. opn. of George, C. J.).) The Legislative Analyst specifically noted that Proposition 209 could affect special funding for \\\" 'designated \\\"racially isolated minority schools\\\" that are located in areas with high proportions of racial or ethnic minorities.\\\" (Hi-Voltage, at p. 584 (conc. & dis. opn. of George, C. J.), quoting the Ballot Pamp., Gen. Elect. (Nov. 5, 1996) Legis. Analyst's analysis of Prop. 209, at p. 31.)\\nThe District emphasizes the special nature of K-12 public education and we do not underestimate the significance of quality K-12 public education. But while we appreciate the unique value and importance of education (see, e.g., Brown v. Board of Education (1954) 347 U.S. 483, 493 [74 S.Ct. 686, 691, 98 L.Ed. 873, 38 A.L.R.2d 1180] [\\\"education is perhaps the most important function of state and local governments\\\"]), it is clear the intention of the voters was that Proposition 209 apply to education. The district's transfer policy violates Proposition 209, and to the extent it is required by Education Code section 35160.5, the statute does as well.\\nIV\\nEqual Protection Considerations\\nThe District proposes that the transfer policy is required under the equal protection clause of the Constitution of the United States. While there can be no question the United States Constitution prohibits a school district from acting to segregate schools, there is no federal constitutional mandate necessitating the implementation of a proactive program of integration. The United States Supreme Court has made it clear that such a plan is not required by the federal equal protection clause.\\n\\\"Racial isolation\\\" or \\\"imbalance\\\" that is not the result of segregative intent does not require a racially discriminatory \\\"desegregation\\\" plan. (Dayton Board of Education v. Brinkman (1977) 433 U.S. 406, 413 [97 S.Ct. 2766, 2772, 53 L.Ed.2d 851] [\\\"The finding that the pupil population in the various Dayton schools is not homogeneous, standing by itself, is not a violation of the Fourteenth Amendment in the absence of a showing that this condition resulted from intentionally segregative actions on the part of the Board.\\\"]; Milliken v. Bradley (1977) 433 U.S. 267, 280, fn. 14 [97 S.Ct. 2749, 2757, 53 L.Ed.2d 745] [no federal constitutional right to a \\\"particular degree of racial balance or mixing\\\"]; Swann v. Board of Education (1971) 402 U.S. 1, 26 [91 S.Ct. 1267, 1281, 28 L.Ed.2d 554] [racial imbalances may result from innocent causes such as the population distribution of a given district]; accord, Missouri v. Jenkins (1995) 515 U.S. 70 [115 S.Ct. 2038, 132 L.Ed.2d 63] [federal court had no authority to order the state to fund predominantly non-White school district so as to attract White students from surrounding districts, so that the non-White district would be better balanced].)\\nThe distinction between what is required by the federal equal protection clause, and what may be permitted by it, is critical in this context. The Ninth Circuit Court of Appeals recognized in the absence of de jure segregation there is no constitutionally required obligation to order desegregation. \\\"Racial balancing cannot be the objective of a federal court unless the balancing is shown to be necessary to correct the effects of government action of a racist character.\\\" (Ho by Ho v. San Francisco Unified School Dist. (9th Cir. 1998) 147 F.3d 854, 865, citing Freeman v. Pitts (1992) 503 U.S. 467, 474 [112 S.Ct. 1430, 1437, 118 L.Ed.2d 108].)\\nWith respect to the equal protection provisions of the California Constitution, the District relies, in part, on statements from Crawford v. Board of Education (1976) 17 Cal.3d 280 [130 Cal.Rptr. 724, 551 P.2d 28]; Serrano v. Priest (1971) 5 Cal.3d 584 [96 Cal.Rptr. 601, 487 P.2d 1241, 41 A.L.R.3d 1187], San Francisco Unified School Dist. v. Johnson (1971) 3 Cal.3d 937 [92 Cal.Rptr. 309, 479 P.2d 669]; and Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876 [31 Cal.Rptr. 606, 382 P.2d 878] and other preProposition 209 California cases. But Proposition 209 has undeniably changed the state law. It is a firmly established rule of constitutional jurisprudence that where two constitutional provisions conflict, the one that was enacted later in time controls. (People v. Adamson (1946) 27 Cal.2d 478, 486-487 [165 P.2d 3] [1934 constitutional amendment qualified previous inability to comment on defendant's failure to take stand]; Slavich v. Walsh (1947) 82 Cal.App.2d 228, 236-237 [186 P.2d 35] [resolving conflict in power of chartered cities under one constitutional provision by looking to other constitutional provisions enacted later in time].)\\nV\\nConclusion\\nOne can reasonably infer that in enacting Education Code section 35160.5, the California Legislature believed that unrestricted open transfer policies might result in what the literature calls de facto segregation, or at least racial or ethnic imbalance. Yet, despite the presumed legitimacy of the Legislature's motives, we are forced to conclude that the balancing component of Education Code section 35160.5 is in contravention of the state constitution as amended by Proposition 209.\\nIt is not our intention to suggest that there cannot be any \\\"integration plans\\\" under Proposition 209. We stress that an \\\"integration plan\\\" developed by a school board need not offend Proposition 209 if it does not discriminate or grant preferences on the basis of race or ethnicity.\\nAlthough our analysis is limited to the facts before us and we answer only the questions presented to us in this appeal, we note other courts have confronted similar issues in different factual contexts and rendered opinions. The benefits of the development of magnet schools has been cited by some courts. \\\"Magnet schools have the advantage of encouraging voluntary movement of students within a school district in a pattern that aids desegregation on a voluntary basis . . . .\\\" (Missouri v. Jenkins, supra, 515 U.S. 70, 92 [115 S.Ct. 2038, 2051].) Another version of an \\\"integration plan\\\" described is a program which would assign only a very small geographic area for a student's home school, and fill remaining places in that school's class by an unweighted random lottery. (See Tuttle v. Arlington County School Bd. (4th Cir. 1999) 195 F.3d 698, 706.)\\nWe do not dispute the evils of segregated schools and we recognize the potential benefits of attending a racially and ethnically diverse school, but the people have spoken. California Constitution, article I, section 31 is clear in its prohibition against discrimination or preferential treatment based on race, sex, color, ethnicity or national origin. Thus, the racial balancing component of the District's open transfer policy is invalid under our state Constitution.\\nThe judgment is reversed. The trial court is directed to enter a new order denying the District's motion for summary judgment and granting Crawford's motion for summary judgment and to enter a new judgment accordingly.\\nCrawford shall recover his costs on appeal.\\nRylaarsdam, J., and O'Leary, J., concurred.\\nRespondents' petition for review by the Supreme Court was denied August 28, 2002.\\nEducation Code section 35160.5 provides in pertinent part: \\\"[T]he governing board of each school district shall, as a condition for the receipt of school apportionments from the state school fund, adopt rules and regulations establishing a policy of open enrollment within the district for residents of the district. . . . HO (2) The policy shall include all of the following elements: RQ (A) It shall provide that the parents or guardian of each schoolage child who is a resident in the district may select the schools the child shall attend, irrespective of the particular locations of his or her residence within the district, except that school districts shall retain the authority to maintain appropriate racial and ethnic balances among their respective schools at the school districts' discretion or as specified in applicable court-ordered or voluntary desegregation plans.\\\"\\nThe \\\"total Whites\\\" category includes students who are classified as \\\"Egyptian/Iranian/ Lebanese.\\\"\"}"

cal/1151170.json

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+"{\"id\": \"1151170\", \"name\": \"JOSEPH RUIZ, Plaintiff and Respondent, v. JULIA SYLVA, Defendant and Appellant; RAUL MORIEL et al., Real Parties in Interest; ALBERT ROBLES et al., Plaintiffs and Appellants, v. CARMEN AVALOS, Defendant and Respondent; JOSEPH RUIZ et al., Real Parties in Interest\", \"name_abbreviation\": \"Ruiz v. Sylva\", \"decision_date\": \"2002-09-19\", \"docket_number\": \"No. B157433; No. B157803\", \"first_page\": \"199\", \"last_page\": \"217\", \"citations\": \"102 Cal. App. 4th 199\", \"volume\": \"102\", \"reporter\": \"California Appellate Reports, Fourth Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T23:01:50.255654+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOSEPH RUIZ, Plaintiff and Respondent, v. JULIA SYLVA, Defendant and Appellant; RAUL MORIEL et al., Real Parties in Interest; ALBERT ROBLES et al., Plaintiffs and Appellants, v. CARMEN AVALOS, Defendant and Respondent; JOSEPH RUIZ et al., Real Parties in Interest.\", \"head_matter\": \"[No. B157433.\\nSecond Dist., Div. Eight.\\nSept. 19, 2002.]\\nJOSEPH RUIZ, Plaintiff and Respondent, v. JULIA SYLVA, Defendant and Appellant; RAUL MORIEL et al., Real Parties in Interest; ALBERT ROBLES et al., Plaintiffs and Appellants, v. CARMEN AVALOS, Defendant and Respondent; JOSEPH RUIZ et al., Real Parties in Interest.\\n[No. B157803.\\nSecond Dist., Div. Eight.\\nSept. 19, 2002.]\\nCounsel\\nEdward J. Horowitz for Plaintiffs and Appellants.\\nHorvitz & Levy, Mitchell C. Tilner; Albright, Yee & Schmit, Clifton W. Albright and Timothy J. Hall for Defendant and Appellant Julia Sylva.\\nSmith Kaufman, Stephen J. Kaufman; Law Offices of Nate G. Kraut and Nate G. Kraut for Plaintiff and Respondent.\\nBill Jones, Secretary of State, William P. Wood; Bill Lockyer, Attorney General, Andrea Lynch Hoch, Assistant Attorney General, Louis R. Mauro and Susan R. Oie, Deputy Attorneys General, as Amici Curiae on behalf of Plaintiff and Respondent.\\nBeltran & Medina, J. Amoldo Beltran, Donald P. Johnson and Douglas G. Chapman III for Defendant and Respondent.\\nSmith Kaufman, Stephen J. Kaufman; and Nate G. Kraut for Real Parties in Interest.\\nBill Lockyer, Attorney General, Andrea Lynch Hoch, Assistant Attorney General, Louis R. Mauro and Susan R. Oie, Deputy Attorneys General, as Amici Curiae on behalf of Real Parties in Interest.\", \"word_count\": \"6740\", \"char_count\": \"43092\", \"text\": \"Opinion\\nCOOPER, P. J.\\nElections Code section 11041, subdivision (b) requires that \\\"[a]ll petition sections shall be printed in uniform size and darkness with uniform spacing.\\\" We hold that this statute requires the use of a uniform typeface in the statement of reasons for the recall and the answer of the recall target. The petitions submitted to the South Gate elections official to recall Raul Moriel, Xochilt Ruvalcaba, Maria Benavides, and Albert Robles (Petitions) do not actually comply with section 11041, subdivision (b). The statement of reasons for the recall and the answers of the recall targets were not printed in uniform typefaces. However, even though the Petitions do not actually comply with section 11041, subdivision (b), they are valid under the doctrine of substantial compliance. The purpose of section 11041, subdivision (b)\\u2014to ensure equal emphasis of the statement of reasons and the answer\\u2014was satisfied because neither the statement nor the answers were unduly emphasized.\\nThe trial court also concluded that the Petitions were valid. We affirm the trial court's grant of a petition for writ of mandate sought by proponents of the recall of Robles, Benavides, Ruvalcaba, and Moriel (Proponents). We also affirm the trial court's denial of Robles, Benavides, Ruvalcaba, and Moriel's petition for writ of mandate.\\nFactual Background\\nJoseph Ruiz and other South Gate residents initiated the process to recall Moriel, Ruvalcaba, Benavides and Robles (Target Officials). The process requires, inter alia, submitting two blank copies of the petition for recall with the elections official. (\\u00a7 11042, subd. (a).) The petition must include a notice of intention, which includes a statement of the reasons for the proposed recall. (\\u00a7 11020, subd. (b) (sometimes referred to as the statement).) If the target of the recall files an answer \\\"to the statement of the proponents,\\\" the answer must be included in the petition. (\\u00a7\\u00a7 11023, subd. (a), 11041, subd. (a)(3).)\\nAfter receiving the two blank copies, the elections official has 10 days to notify the proponents, in writing, whether the form and wording of the petition conforms to the Elections Code. (\\u00a7 11042, subds. (a) & (b).) Once the elections official approves the form and wording of the petition, the recall proponents may circulate the petition for signature. (\\u00a7 11042, subd. (d).)\\nOn October 22, 2001, the Proponents filed separate petitions to recall Moriel, Ruvalcaba and Benavides. On October 31, 2001, Carmen Avalos, the South Gate elections official, wrote Ruiz, informing him the Petitions did not comply with the Elections Code and were null and void. Avalos enumerated the defects: (1) \\\"[i]n the city of South Gate the number of valid signatures [to satisfy Elections Code section 11020] needs to be twenty. . (2) three listed Proponents' addresses \\\"did not match with what the records of the registrar recorder had on file\\\"; and (3) \\\"it was difficult to verify three of the proponents on the form due to illegible signatures that were difficult to confirm.\\\"\\nThe Proponents revised the three Petitions and drafted a fourth for the recall of Robles. They filed the Petitions on November 6, 2001. Each notice of intention included the name and title of the officer sought to be recalled (\\u00a7 11020) and a statement of the reasons for the proposed recall (\\u00a7 11020). Each petition also contained a proof of service demonstrating that each recall target was personally served with a copy of the notice of intention relating to that target.\\nOn November 12, 2001, Moriel and Benavides filed an answer and the next day, Ruvalcaba and Robles filed an answer (\\u00a7 11023). Benavides's answer, which is similar to the other three answers, provides in English and Spanish as follows: Do Not Sign this Legal Document without consulting with your Attorney. The law requires the person who gives you this form to be a United States Citizen and registered voter in the City of South Gate. Ask for California Driver's license, if this person refuses to identify themselves or you know that they are circulating this petition illegally, call the City Attorney 323-563-9538 or the Reward Hot Line 323-567-1368. A $1,000.00 reward is available for information leading to conviction of persons circulating this petition who are not United States Citizens and registered voters of South Gate. You may remain anonymous.\\\"\\nIncluding both the English and Spanish versions, a total of eight words were underlined and 10 were printed in bold type. The remainder of the answer was printed in plain type. Moriel's answer differed from Benavides's answer in that the phrase \\\"Ask for California Driver's License\\\" was underlined.\\nOn November 16, 2001, Avalos wrote Araceli Dominiguez, another South Gate resident and recall proponent, in connection with the recall effort. The letter, in pertinent part, stated as follows: \\\"Pursuant to Elections Code 11022, the proof of publication of notice of intention to recall has been met. However in order to proceed with the recall process of the above mentioned officers [Ruvalcaba, Moriel, Benavides, and Robles] you must also comply with Elections Code 11041 as to the form of recall petition and Elections Code 11042 filing copies of proposed petition.\\\"\\nOn November 21, 2001, Avalos wrote Ruiz three separate letters approving the Petitions for recall of Moriel, Benavides, and Robles. Each letter provided as follows: \\\"We find the proposed form to be in compliance with all of the pertinent requirements of the Elections Code and hereby find that the petition may be circulated and signatures gathered from the registered voters in the City of South Gate.\\\"\\nAvalos, however, rejected the petition to recall Ruvalcaba, stating \\\"I must reject your petition due to the missing words in your submitted petition. It is not uniform with what was indicated in the filed Notice of Intention or the proof of publication submitted to our office.\\\" The Proponents then submitted a revised petition to recall Ruvalcaba. The revised petition was rejected because \\\"[t]here are smudges of ink on one of the petitions.\\\" On November 27, 2001, in a letter to Antonio Mendez, a resident of South Gate, Avalos approved a petition to recall Ruvalcaba, indicating the petition was in compliance with the Elections Code requirements.\\nOn December 10, 2001, Avalos wrote Ruiz that the Petitions were \\\"flawed.\\\" According to Avalos's letter, \\\"[t]he error consists of a failure to comply with California Elections Code Section 11040(a), which requires that 'the Petition may consist of any number of separate sections, which shall be duplicates except as to signatures and matters required to be affixed by signers and circulators.' This means that all pages that require the signatures of the voters 'shall be duplicates.' \\\" Avalos further informed Ruiz that the recall effort must be started anew. The Proponents of the recall continued to gather signatures despite Avalos's letter withdrawing approval.\\nProcedural Background\\nOn January 22, 2002, the Proponents filed a verified petition for writ of mandate requesting that the trial court declare Avalos's December 10, 2001 letter invalid and requiring the South Gate City Clerk to accept the Petitions if filed by the statutory deadline. Avalos, Julia Sylva, the elections official who replaced Avalos, and Salvador Alva, the South Gate City Attorney, were named as respondents, and the Target Officials were named as the real parties in interest. The Target Officials filed a separate petition for writ of mandate.\\nDuring a hearing on both Ruiz's and the Target Officials' Petitions for writ of mandate, the trial court indicated that the use of bold and underlining in the Target Officials' answers \\\"balances out\\\" the use of bold in the Proponents' statements. The trial court further found that \\\"[t]he answer has underlining and bold print just like the statement does. In fact, the bold print and the underlining is really more striking when it's in specific words and specific thoughts or ideas or terms than when it is in the whole section. . . . I don't think the size of the letters is really different.\\\"\\nThe trial court also concluded that Avalos's December 10, 2001 \\\"letter rescinding the approval by the city clerk for noncompliance with 11040 was void, and there is no evidence that the petitions did not comply with that section, that's 11040, therefore there was nothing at that point improper about the proponents continuing to collect signatures . . . .\\\"\\nOn March 20, 2002, the trial court granted Ruiz's petition for writ of mandate and directed \\\"Respondent Julia Sylva to vacate the December 10, 2001 rescission of Respondent Carmen Avalos' approval of the petitions to recall City of South Gate Mayor Raul Moriel, Vice-Mayor Xochilt Ruvalcaba, Council Member Maria Benavides, and City Treasurer Albert Robles, and to notify Petitioner, in writing, that the December 10, 2001 letter was of no force and effect. . . .\\\"\\nThe trial court also ordered that \\\"Julia Sylva, Elections Official for the City of South Gate, shall receive for filing at the Los Angeles County Registrar-Recorder's office all petitions to recall Real Parties in Interest submitted by Petitioner and the recall proponents by the statutory deadlines. Said petitions shall remain in the custody of the Los Angeles County Registrar-Recorder's office while they are being processed by Respondent Sylva or her designee in accordance with applicable Elections Code provisions.\\\" Sylva appealed the same day from the grant of Ruiz's petition for mandate and the proceedings were automatically stayed. (Code Civ. Proc., \\u00a7916.)\\nThe petition for writ of mandate filed by the Target Officials was denied.\\nOn March 21, 2002, the trial court ordered the Los Angeles County Registrar-Recorder to receive the Petitions for filing. The court ordered, in the alternative, the submission of the petitions to Sylva if Sylva is present at the office of the registrar-recorder. If Sylva is not present at the registrar-recorder's office, the Petitions should be maintained in a secure location. The trial court also ordered that the Petitions are to be deemed to be timely filed if this court affirms the judgment.\\nOn April 4, 2002, Robles, Moriel, Ruvalcaba and Benavides appealed from the denial of their petition for writ of mandate and joined in most of Sylva's brief.\\nWe denied Ruiz's request to lift the automatic stay and consolidated the appeals from the grant of Ruiz's petition for writ of mandate and from the denial of the Target Officials' petition for writ of mandate. We also granted the Secretary of State, the official responsible for the administration of the provisions of the Elections Code (Gov. Code, \\u00a7 12172.5), permission to file amicus curiae briefs in both cases.\\nDiscussion\\nIn part I, we begin with the principal issue\\u2014whether section 11041, subdivision (b) requires that the statement and answer contain a uniform typeface, a circumstance indisputably absent from this case. We answer that question affirmatively. Therefore, in part II, we focus on the issue of substantial compliance. Finally, we discuss Sylva's contention that the signatures collected after Avalos's purported rescission letter are invalid. To resolve this appeal we need not and do not consider the parties' remaining contentions.\\nI. The Petitions Do Not Actually Comply with Section 11041, Subdivision (b)\\nThe principal issue in these appeals involves the statutory construction of section 11041, subdivision (b). The statute provides: \\\"All petition sections shall be printed in uniform size and darkness with uniform spacing.\\\" We must determine what the Legislature intended when it enacted the law.\\nThe parties and amici curiae provide three different interpretations of the legislative intent. Ruiz argues the statute requires \\\"that a copy of the petition signed by one voter must look the same as another copy signed by another voter\\u2014thereby ensuring that all voters are presented with the same information, in the same form.\\\" This argument, which the trial court adopted, is rooted in the plain language of the statute. Section means copy of the petition. (Hebard v. Bybee (1998) 65 Cal.App.4th 1331, 1335 [77 Cal.Rptr.2d 352] [defining section as copy]; Myers v. Patterson (1987) 196 Cal.App.3d 130 [241 Cal.Rptr. 751] [using the term section to mean copy].) Thus, according to the plain language of the statute, all \\\"copies\\\" must have \\\"uniform size and darkness.\\\"\\nWhile the strength of Ruiz's interpretation is that it defines \\\"section\\\" as the term is commonly used in the Elections Code, the weakness is that the statutory language, as he interprets it, is duplicative. Section 11040, subdivision (a) states that \\\"[t]he petition may consist of any number of separate sections, which shall be duplicates except as to signatures and matters required to be affixed by signers and circulators.\\\" Thus, under section 11040, subdivision (a) each copy of the petition must be a duplicate of all other copies. A duplicate is \\\"exactly the same as one or more others of its kind\\\" and would, therefore necessarily have identical size, darkness, and spacing. (Webster's 3d New Intemat. Diet. (1993) p. 702 [defining duplicate as \\\"consisting of or existing in two corresponding or identical parts or examples; being exactly the same as one or more others of its kind . . . .\\\"].) The meaning Ruiz ascribes to section 11041, subdivision (b) is no different from the meaning of section 11040, subdivision (a).\\nIn contrast to Ruiz, Sylva argues that \\\"the typeface on any and every section of the petition that is circulated for signatures must be uniform in size, darkness, and spacing.\\\" She further contends that the \\\"plain meaning of section 11041, subdivision (b), is that, on a recall petition, the recall proponents' statement of reasons for recall and the target official's answer must be printed in the same typeface.\\\" Although Sylva expressly states that a section, as used in the statute, is a copy of the petition, her interpretation requires defining section as paragraph. If the term \\\"section\\\" means paragraph, then all petition paragraphs shall be printed in uniform size and darkness. But, if the term \\\"section\\\" means copy, as Sylva claims, only the copies must be uniform, not each paragraph of the petition.\\nThe Target Officials concur in Sylva's interpretation of the statute, stating \\\"the recall proponent's statement of reasons for recall and the target official's answer must be printed in the same typeface.\\\" Like Sylva, the Target Officials explicitly define section as copy, but implicitly reject a literal construction of the statute because they eschew the claim that only copies of the Petitions must be uniform.\\nThe Secretary of State rejects both parties' interpretations and argues that \\\"the Notice of intention and the Answer [must] be printed in the same type size. However, this does not preclude the parties from utilizing bolding, underlining, italics or different fonts, even though these variations can result in distinctly different measurements.\\\" The Secretary of State interprets section 11041, subdivision (b) to mean \\\"that the elections official must reject a petition prepared by the proponents of a recall election that differs in any way from the original Notice of Intention [including the statement] or the Answer.\\\" (Italics in original, fn. omitted.) The Secretary of State carves out a limited exception. In a \\\"rare[]\\\" circumstance, he has advised that the recall election proponents may print the answer in a manner that differs from the way it was prepared: \\\"Occasionally an elections official will be presented with an answer that has been prepared in a bizarre shape (e.g., a Christmas tree) or paragraph construction . . . .\\\"\\nThe Secretary of State's analysis is not based on the statutory language and even conflicts with the language of the statute. Whereas the statute requires uniform size, darkness, and spacing, the Secretary permits \\\"variations [that] can result in distinctly different measurements.\\\" The Secretary describes his approach as one \\\"providing a consistent and workable interpretation of the law relating to recall elections.\\\" The legislative history, however, reveals a conflict between his interpretation and that of March Fong Eu, the Secretary of State at the time the legislation was enacted.\\nThe legislative analysis completed when section 11041, subdivision (b) was being considered provided: \\\"Current law does not prohibit proponents from printing the notice of intention in a larger and bolder type than that used for the officer's answer. Requiring all petition sections to be printed in a uniform size and darkness would ensure that both the notice of intention (which includes the recall statement) and the official's answer are given equal emphasis on the petition.\\\" While the current Secretary of State argues his interpretation is entitled to great weight because he is responsible for enforcing the legislation, the authority he cites stands for the proposition that a contemporaneous administrative construction of the statute by the administrative agency charged with its enforcement and interpretation is entitled to great weight. (Wilkinson v. Workers' Comp. Appeals Bd. (1977) 19 Cal.3d 491, 501 [138 Cal.Rptr. 696, 564 P.2d 848]; Andal v. Miller (1994) 28 Cal.App.4th 358, 365, fn. 3 [34 Cal.Rptr.2d 88].) Thus, under Wilkinson and Andal, the prior interpretation of Secretary Eu is the one entitled to great weight because she interpreted the statute at the time the statute legislation was under consideration.\\nIn construing section 11041, subdivision (b), we must ascertain the Legislature's intent to effectuate the legislative purpose. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386 [241 Cal.Rptr. 67, 743 P.2d 1323].) \\\"The statute's plain meaning controls the court's interpretation unless its words are ambiguous. If the plain language of a statute is unambiguous, no court need, or should, go beyond that pure expression of legislative intent.\\\" (Kobzoff v. Los Angeles County Harbor/ UCLA Medical Center (1998) 19 Cal.4th 851, 861 [80 Cal.Rptr.2d 803, 968 P.2d 514].) In contrast, where the statutory language is ambiguous other indicia of legislative intent must be considered. (Hoechst Celanese Corp. v. Franchise Tax Bd. (2001) 25 Cal.4th 508, 519 [106 Cal.Rptr.2d 548, 22 P.3d 324] [when a statute \\\"is susceptible to more than one reasonable interpretation, then we look to 'extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part' \\\"].) A statute should not be construed in a manner that renders it superfluous. (Dix v. Superior Court (1991) 53 Cal.3d 442, 459, 279 [279 Cal.Rptr. 834, 807 P.2d 1063]; Young v. Gannon (2002) 97 Cal.App.4th 209, 223 [118 Cal.Rptr.2d 187].) \\\"Literal construction of statutory language will not prevail if contrary to the legislative intent apparent in the statutory scheme.\\\" (Gomes v. County of Mendocino (1995) 37 Cal.App.4th 977, 986 [44 Cal.Rptr.2d 93].)\\nThe construction proposed by the Proponents, a literal construction, renders section 11041, subdivision (b) superfluous. Because statutes should not be construed in a manner that renders them meaningless (Dix v. Superior Court, supra, 53 Cal.3d at p. 459), we look beyond the plain language to ascertain the legislative intent. Accordingly, we review the legislative history of section 11041, subdivision (b). The statute was proposed at the request of the Los Angeles County Registrar-Recorder and introduced by Assemblymember David Elder in 1983. According to a memorandum of support from the office of Secretary Eu, the new legislation was necessary because \\\"There is no provision that prohibits proponents from printing a recall petition in different type sizes. For example, the notice of intention (including grounds for recall) in ten-point type size and the officer's answer in a small six-point type size.\\\" The same memorandum explained that the bill would \\\"impose a requirement for uniformity throughout the petition.\\\" Significantly, Assemblymember Elder's analysis, contained in a letter to the Governor requesting his approval of the bill, also indicated that the amendment would require \\\"recall petitions to be printed in uniform type and size.\\\" (See People v. Pena (1999) 74 Cal.App.4th 1078, 1083 [88 Cal.Rptr.2d 656] [considering letter from author to governor urging passage of legislation when ascertaining legislative intent].)\\nBased on the legislative history stressing the need for equal emphasis, we conclude that section 11041, subdivision (b) requires that the statement and answer be printed in uniform size and darkness. This interpretation, advanced by Sylva and the Target Officials, is most consistent with the legislative intent. (People v. Thomas (1992) 4 Cal.4th 206, 210 [14 Cal.Rptr.2d 174, 841 P.2d 159] [\\\" 'The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law' \\\"].)\\nWhile one canon of statutory construction calls for liberal construction of recall statutes in favor of the right to recall elected officials (Gage v. Jordan (1944) 23 Cal.2d 794, 799 [147 P.2d 387]), a court cannot \\\"enlarge the scope of a procedural statute where the statutory provisions are clear.\\\" (Wilcox v. Enstad (1981) 122 Cal.App.3d 641, 651 [176 Cal.Rptr. 560].) The legislative intent, as reflected in the legislative history indicates that section 11041, subdivision (b) requires that the statement and answer be printed in uniform size and darkness with uniform spacing. This construction is the only one confirmed by the legislative purpose.\\nThe practical consequence of this holding is that the Proponents, who control the recall process, will select the typeface for both the statement and the answer. The Proponents, however, will not derive any special benefit from their ability to select the typeface precisely because of the uniformity requirement. If granting the recall Proponents an opportunity to select the typeface is deemed to be undesirable, the Legislature may amend the statute to specify a particular typeface as it has done in other situations. (See, e.g., \\u00a7 9008, 9160.)\\nRuiz and the Secretary of State surmise that other deleterious consequences will flow from this holding. The Secretary of State argues the \\\"target officials could, in every instance, thwart the entire recall process simply by choosing a type size and darkness different from that selected by the proponents.\\\" If the Target Officials choose a typeface different from that employed by the proponents, the Proponents, in order to actually comply with section 11041, subdivision (b), must print the answer in the same typeface as the statement even if that requires alteration of the typeface used in the original answer.\\nRuiz claims that construing section 11041, subdivision (b) to require a uniform typeface in the statement and answer would enable the recall election proponents to \\\"edit\\\" the answer. The term edit connotes an alteration of the content of the answer. However, permission to alter the typeface used in the answer, where it is inconsistent with the typeface used in the statement, is not tantamount to sanctioning the alteration of the content of the answer, which is neither required nor permitted under section 11041, subdivision (b).\\nThere is no dispute that the Petitions do not actually comply with section 11041, subdivision (b), as we have construed it. The statements and answers were printed in disparate typefaces, which lack the uniformity required by the statute.\\nII. The Petitions Substantially Comply with Purpose of Section 11041, Subdivision (b)\\nThe next issue is whether, under the doctrine of substantial compliance, the Petitions are valid despite the fact the entire statement was printed in bold type and the answer was printed in a combination of typefaces, including plain type, bold type, and underlined type.\\n\\\" '[Substantial compliance . . . means actual compliance in respect to the substance essential to every reasonable objective of the statute.'\\\" (Assembly v. Deukmejian (1982) 30 Cal.3d 638, 649 [180 Cal.Rptr. 297, 639 P.2d 939], quoting Stasher v. Harger-Haldeman (1962) 58 Cal.2d 23, 29 [22 Cal.Rptr. 657, 372 P.2d 649].) The doctrine of substantial compliance, however, cannot save a petition that misinforms the voters or fails to inform the voters of information necessary to \\\"exercise intelligently their rights . . . .\\\" (Creighton v. Reviczky (1985) 171 Cal.App.3d 1225, 1232 [217 Cal.Rptr. 834].) Nor may it be \\\"relied upon to save carelessly or negligently prepared petitions.\\\" (California Teachers Assn. v. Collins (1934) 1 Cal.2d 202, 205 [34 P.2d 134].) \\\"[Statutes passed for the purpose of protecting electors from confusing or misleading situations should be enforced.\\\" (Clark v. Jordan (1936) 7 Cal.2d 248, 252 [60 P.2d 457, 106 A.L.R. 549].)\\nEven though the doctrine of substantial compliance is narrowly applied in the election context, our Supreme Court \\\"has stressed that technical deficiencies in referendum and initiative petitions will not invalidate the petitions if they are in 'substantial compliance' with statutory and constitutional requirements.\\\" (Assembly v. Deukmejian, supra, 30 Cal.3d 638, 652.) The same rules have been applied to recall petitions. (See, e.g., Othmer v. City Council of Long Beach (1929) 207 Cal. 263, 275 [277 P. 857]; Tilden v. Blood (1936) 14 Cal.App.2d 407, 414 [58 P.2d 381].)\\nWe conclude the Petitions substantially complied with the purpose of section 11041, subdivision (b). Although the Petitions do not actually comply with the literal language of section 11041, subdivision (b), they comply with the substance essential to every reasonable objective of the statute.\\nA. The Purpose of Section 11041, Subdivision (b) Is to Assure Equal Emphasis of the Notice of Intention and the Answer\\nThe purpose of section 11041, subdivision (b), as indicated in the legislative history, is to ensure equal emphasis of the statement and the answer. The legislative history reflects the understanding that \\\"[Requiring all petition sections to be printed in uniform size and darkness would ensure that both the notice of intention (which includes the recall statement) and the officer's answer are given equal emphasis on the petition.\\\" (Off. of Sec. of State, Analysis of Assem. Bill No. 1455 (1983-1984 Reg. Sess.) June 9, 1983, p. 3, italics added.) The author of the legislation described the changes as \\\"technical and procedural\\\" and numerous other analyses similarly reflect that the legislation was technical and procedural. (See, e.g., Sen. Com. Elections & Reapportionment, Analysis of Assem. Bill No. 1455 (1983-1984 Reg. Sess.) as amended May 11, 1983 [bill provides for technical, clarifying, and procedural changes]; 3d reading analysis of Assem. Bill No. 1455 (1983-1984 Reg. Sess.) June 21, 1983, as amended May 11, 1983 [same].)\\nBecause the legislative purpose to ensure equal emphasis of the statement and answer, the premise of Sylva's argument that \\\"[t]he lack of actual compliance with the statute in this case defeats the statute's essential purpose\\u2014to provide fair and balanced information to the voters\\\" is inaccurate. (Italics in original.) Simply put, section 11041, subdivision (b) does not govern the information provided to the voters, but governs only the emphasis that information receives in the petition.\\nThe distinction between equal emphasis\\u2014the purpose of section 11041, subdivision (b) and balanced information\\u2014the purpose as characterized by Sylva\\u2014is critical. The failure to provide information or the communication of misinformation threaten the proper operation and the integrity of the election process. (San Francisco Forty-Niners v. Nishioka (1999) 75 Cal.App.4th 637, 642 [89 Cal.Rptr.2d 388].) No court has applied the doctrine of substantial compliance to save a petition that provides confusing or misleading information. (Clark v. Jordan, supra, 7 Cal.2d 248 [finding no substantial compliance where short title does not reveal initiative measure would affect taxes]; Mervyn's v. Reyes (1998) 69 Cal.App.4th 93, 104 [81 Cal.Rptr.2d 148] [omitting 17 pages of general plan section did not constitute substantial compliance]; Hebard v. Bybee, supra, 65 Cal.App.4th 1331 [no substantial compliance where title of ordinance in referendum petition was inaccurate]; Ibarra v. City of Carson (1989) 214 Cal.App.3d 90, 99 [262 Cal.Rptr. 485] [\\\"[w]here the purpose of the statutory requirement is to give information to the public to assist the voters in deciding whether to sign or oppose the petition, the substantial compliance argument is often rejected and strict compliance held essential\\\"]; Creighton v. Reviczky, supra, 171 Cal.App.3d 1225, 1231, 1338 [finding no substantial compliance where proponents increased confusion by excluding test of protested legislation].)\\nIn contrast, the doctrine of substantial compliance has been applied where only the emphasis of the information presented is at issue. For example, in California Teachers Assn. v. Collins (1934) 1 Cal.2d 202 [34 P.2d 134], the registrar of voters refused to accept a petition because, in part, the short title was printed in 12-point instead of 18-point type, when section 1197b of the Political Code required that \\\" 'across the top of each page after the first page of every initiative . . . petition or section thereof. . . there shall be printed in eighteen-point gothic type a short title . . . .'\\\" (California Teachers Assn., at pp. 203-304.) The Supreme Court found \\\"[i]n actual size there is a difference of but six-seventy-seconds of an inch. Only one with very poor eyesight would be unable to read a line printed in twelve-point type as readily as one printed in eighteen-point type.\\\" (Id. at p. 204.) \\\"[W]e are of the view there has been a sufficiently substantial compliance with the statute to require him to accept and file the petition.\\\" (Ibid.; see also Othmer v. City Council of Long Beach (1929) 207 Cal. 263, 270 [277 P. 857] [finding substantial compliance where \\\"there was nothing in the duplicate copies of the petition to mislead the electors, and there can be no doubt that each signer fully understood that he was signing a petition for the recall of the four councilmen\\\"]; Chase v. Brooks (1986) 187 Cal.App.3d 657, 664 [232 Cal.Rptr. 65] [finding caption to be in substantial compliance with requirements].)\\nOne reason to distinguish between information and emphasis when applying the substantial compliance doctrine is that only the latter is necessarily content neutral. Where the information is mischaracterized the electorate is misled, and the voter is unable to intelligently exercise his or her right to vote, the \\\"sword of democracy.\\\" (San Francisco Forty-Niners v. Nishioka, supra, 75 Cal.App.4th at p. 643.) On the other hand, where the only defect is that the typeface is not in strict compliance with the Elections Code, the voter may still be able to intelligently exercise his or her right to vote. (See California Teachers Assn. v. Collins, supra, 1 Cal.2d 202.) \\\"The law is clear that election officials have a ministerial duty to reject initiative petitions which suffer from a substantial, as opposed to a technical, statutory defect which directly affects the quality of information provided to the voters.\\\" (San Francisco Forty-Niners v. Nishioka, supra, 75 Cal.App.4th at p. 644.)\\nA review for content is antithetical to analyzing substantial compliance in this case because the issue is emphasis, not information. Nevertheless, reviewing the content of the Target Officials' answers demonstrates a second fallacy of Sylva's argument. Sylva argues that actual compliance is necessary to ensure the communication of balanced information. That argument assumes that the answer presents information, i.e. a position informing the voters of the desirability of a recall election.\\nContrary to Sylva's assumption, the answers contain no information regarding the desirability or merits of a recall election. Consequently, as the Secretary of State points out, \\\"[i]n the particular circumstances of this case . . . where the Answers do not address the merits of the Notice of Intention, the type size and darkness are totally irrelevant.\\\" Even if the purpose of section 11041, subdivision (b) were as Sylva characterized it\\u2014to provide fair and balanced information\\u2014she cannot demonstrate that the information presented was imbalanced because the Target Officials provided no competing position vis-\\u00e1-vis the merits of the recall election.\\nB. The Proponents Substantially Complied with the Essence of Section 11041, Subdivision (b)\\nThe real issue is whether the use of disparate typeface created an undue emphasis of the Proponents' statement compared to the Target Officials' answers. The Target Officials argue that \\\" 'Substantial compliance' cannot achieve the equality required by the Legislature.\\\" The trial court, in contrast, found the bold print in the statement \\\"balance[s] out\\\" with the combination of plain, bold, and underlining used in the answers.\\nWe have reviewed independently the copies of the Petitions included in the record and agree with the trial court's analysis. (See Hernandez v. City of Encinitas (1994) 28 Cal.App.4th 1048, 1058 [33 Cal.Rptr.2d 875] [substantial compliance is a question of law].) The typeface used in the statement appears to be substantially the same as that used in the answers. While the statement is slightly darker, the difference is minute. Despite the slight discrepancy, the use of selective emphasis in the answers including the use of bold type, underline type, and plain type, \\\"balance [s] out\\\" the use of bold type in the statement. Stated otherwise, the statements and answers appear equally emphasized; neither is minimized in comparison to the other.\\nThe Target Officials argue \\\"the statement of grounds for the recalls . . . were printed entirely in boldface type, which increased the physical size of the print, as compared to the answers of the officials sought to be recalled . . . which were printed almost entirely in ordinary type and darkness.\\\" To better evaluate the Target Officials' claim that the typeface used for the statement was larger and therefore more prominent, we measured the word \\\"You\\\" contained in both the statement and in the answers was measured. While there was a difference in size between the bold type in the statement and the plain type in the answers, the difference was less than one millimeter in length. This difference is de minimis. The essence of the statutory requirement\\u2014equal emphasis\\u2014has been satisfied, notwithstanding the slight variation in color and the insubstantial variation in size. There is no evidence that a voter reviewing the petition would be drawn to the statement because of the typeface used. Although the Petitions did not actually comply with the requirements of section 11041, subdivision (b), the petitions substantially complied with that statute.\\nSubstantial compliance is sufficient. It is the test reaffirmed in Assembly v. Deukmejian, supra, 30 Cal.3d 638, and routinely applied in the election context. (See, e.g., Hebard v. Bybee, supra, 65 Cal.App.4th at p. 1339; Ibarra v. City of Carson, supra, 214 Cal.App.3d at p. 99; Myers v. Patterson, supra, 196 Cal.App.3d at pp. 137-139.) In addition, it is consistent with the approach employed by the Secretary of State to permit, on rare occasions, the proponents of a recall election to alter the presentation of the answer without altering the content of the answer. Actual compliance with the literal language of the statute is not necessary to save the petitions.\\nWhile the doctrine of substantial compliance remains viable, its application requires caution. \\\" 'Substantial compliance' may be carried too far, in which case its application may not be relied upon to save carelessly or negligently prepared petitions.\\\" (California Teachers Assn. v. Collins, supra, 1 Cal.2d at p. 205.) The circumstances of this case warrant application of the doctrine because the technical violations are de minimis, and no evidence reveals the Proponents sought to manipulate the process in order to obtain an unfair advantage by deemphasizing the answers. Instead, the Proponents printed the answers exactly as they were drafted and neither the statements nor the answers were unduly emphasized.\\nIII. Avalos's Purported Rescission Letter Does Not Render Signatures Collected on the Petitions After December 10, 2001, Invalid\\nSylva argues that this court should hold the signatures collected after December 10, 2001, are invalid because, on that date, Avalos informed the Proponents that the petitions were invalid. There is no basis to reach the conclusion requested by Sylva. The signatures were collected on valid Petitions after the Petitions were approved by the election official. The Elections Code requires nothing more. (\\u00a7 11042, subd. (d).)\\nFirst, the Petitions were valid because they substantially comply with section 11041, subdivision (b). The Target Officials implicitly recognized this when they prepared their answers because, at that time, they had been personally served with copies of the Petitions that included the statements, which were printed in bold. The Target Officials could have chosen to print their answers in the same bold type. Instead, they chose to emphasize selectively only certain words.\\nSecond, Avalos recognized that the Petitions substantially complied with section 11041, subdivision (b) when she approved the Petitions. (\\u00a7 11042, subd. (a).) An election official has a \\\"ministerial duty to reject initiative petitions which suffer from a substantial, as opposed to a technical, statutory defect.\\\" (San Francisco Forty-Niners v. Nishioka, supra, 75 Cal.App.4th at p. 644.) Avalos was not required to reject the petitions because the defect was a minor technical defect, not a substantial statutory defect. The technical violation did not result in the presentation of confusing or misleading information.\\nFinally, once Avalos approved the Petitions, the Proponents were authorized under the Elections Code to collect signatures. (\\u00a7 11042, subd. (d).) Accordingly, we reject Sylva's request that this court invalidate any portion of those signatures.\\nDisposition\\nThe grant of the Proponents' petition for mandate is affirmed (No. B157433). The denial of the Target Officials' petition for mandate is likewise affirmed (No. B157803). The approval of the form and the wording of the Petitions is final. The Petitions are deemed to have been timely filed. The \\\"intermediate steps in the recall\\\" as codified in section 11101 et seq. shall commence immediately upon the issuance of this court's remittitur.\\nRubin, J., and Boland, J., concurred.\\nThe petition of appellant Julia Sylva for review by the Supreme Court was denied November 26, 2002.\\nAll further undesignated statutory citations are to this code.\\nAs indicated, the word \\\"License\\\" was capitalized in Moriel's answer. The answers include other minor variations, which are neither substantial nor relevant to these appeals.\\nWe take judicial notice that the Legislature passed and, on August 24, 2002, the Governor approved, Senate Bill No. 803 (2001-2002 Reg. Sess.). Section 2 of that legislation provides \\\"[a]ny recall or special election in the City of South Gate held during the 2002 and 2003 calendar years shall be administered, for all purposes, by the Los Angeles County Registrar-Recorder upon approval by the Los Angeles County Board of Supervisors.\\\" (Evid. Code \\u00a7 451, subd. (a).)\\nThe Target Officials' claim that the deliberate choices of the Proponents create an independent basis to reject the recall petition is meritless. None of the cases cited by the Target Officials create an independent basis for rejecting a petition for recall based on the deliberate action of the recall election proponents. If the Petitions complied or substantially complied with the Elections Code they must be accepted.\\nRuiz correctly points out that the memorandum issued by former Secretary of State March Fong Eu's office was not officially signed by her and argues it is unreliable. Because the memorandum was printed on her letterhead and identified a contact person on her staff, we are not persuaded the lack of Secretary Eu's personal signature renders the memorandum unreliable.\\nSylva's request to take judicial notice of the legislative history of section 11041, subdivision (b) is granted. (Evid. Code \\u00a7 452.)\\nWilliam Wood, chief counsel for the current Secretary of State, communicated directly with Ruiz's counsel regarding the meaning of the term \\\"section\\\" and provided an opinion concerning whether uniform typeface was required in the statement and the answer. According to Wood, \\\"A section is the piece of paper which is circulated and upon which signatures are attached.\\\" The letter continued, \\\"Each section may have multiple pages . . . .\\\" Wood also stated, \\\"Each page may have multiple font sizes or boldfacing. The Elections Code sets minimum font sizes for some parts of the petition, but otherwise recall proponents are given some latitude in font size and boldfacing. Even though each page may have multiple font sizes and/or boldfacing, each section which contains that page or pages must be the same.\\\" Wood's analysis cites no authority for its conclusion and it is not binding on this court. (Cf. Wilkinson v. Workers' Comp. Appeals Bd., supra, 19 Cal.3d at p. 501 [contemporaneous administrative construction not entitled to great weight where clearly erroneous].)\"}"

cal/12121729.json

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+"{\"id\": \"12121729\", \"name\": \"WALTER A. PARKHURST, Respondent, v. MARTHA E. PARKHURST, Appellant\", \"name_abbreviation\": \"Parkhurst v. Parkhurst\", \"decision_date\": \"1897-09-04\", \"docket_number\": \"S. F. No. 418\", \"first_page\": \"18\", \"last_page\": \"23\", \"citations\": \"118 Cal. 18\", \"volume\": \"118\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T00:26:42.777782+00:00\", \"provenance\": \"CAP\", \"judges\": \"Haynes, C., and Belcber, C., concurred.\", \"parties\": \"WALTER A. PARKHURST, Respondent, v. MARTHA E. PARKHURST, Appellant.\", \"head_matter\": \"[S. F. No. 418.\\nDepartment Two.\\nSeptember 4, 1897.]\\nWALTER A. PARKHURST, Respondent, v. MARTHA E. PARKHURST, Appellant.\\nDivorce\\u2014Maintenance or Children by Mother\\u2014Division or Property-Stipulated Decree\\u2014Refusal to Modify.\\u2014Where, by stipulation of the parties to an action for divorce, the community property was divided so as to yield property to the wife, free of encumbrance, of the value of ten thousand dollars, she having also other property of her own valued at three thousand one hundred dollars, while the husband retained only about sufficient property to pay his debts, and, by their agreement, the decree awarded the custody of the minor children to the mother, to be maintained and educated at her sole cost, and that she should have no other alimony or allowance from the father, the stipulated disposition of the property was an equitable settlement, as between the parties, of the burden of caring for and maintaining the offspring; and where it appears that the children are properly supported, maintained, and educated by the mother, and that she has nine thousand dollars in value left of the property awarded to her, her application to modify the decree so as to cast the burden of maintaining the children upon the father is without merit, and is properly refused.\\nId.\\u2014Application to Modify Decree\\u2014Evidence\\u2014Stipulation foe Support of Children.\\u2014Although the stipulation of the parties to an action for divorce cannot divest the parents, as against the children, of the duty of maintaining them, and is not admissible to vary or modify a decree of divorce, or to change the rights of the parties as determined thereby, yet where the stipulation supports and upholds the decree, and is tantamount to an agreed statement of facts, upon which that portion of the decree relating to property rights and the custody, maintenance, and education of the children was based, the stipulation is admissible in evidence against the mother, upon her application to modify the decree, so as to require the father to maintain the children contrary to the stipulation.\\nId.\\u2014Counsel Fee.\\u2014Where an application of the divorced mother to modify the decree is without merit, her application for a counsel fee is properly denied.\\nAPPEAL from an order of the Superior Court of Santa Clara County refusing to modify a decree of divorce. W. G. Lorigan, Judge.\\nThe facts are stated in the opinion.\\nW. C. Kennedy, for Appellant.\\nThe decree of diyorce does not sever the relation of parent and child, or the responsibility of the father for the maintenance of his children, and/ the decree may be modified to require such maintenance. (2 Bishop on Marriage and Divorce, secs. 1212,1213; Plaster v. Plaster, 47 Ill. 290; Wilson v. Wilson, 45 Cal. 399; Erkenbrach v. Erkenbrach, 96 N. Y. 456; Pretzinger v. Pretzinger, 45 Ohio St. 452; 4 Am. St. Rep. 542; Washburn v. Gatlin, 97 N. Y. 623; Howell v. Howell, 104 Cal. 45; 43 Am. St. Rep. 70; Cowls v. Cowls, 8 Ill. 435;' 44 Am. Deo. 708.) The children of the divorced parties are the wards of the court, and its jurisdiction over them is continuing. (Hoffman v Hoffman, 15 Ohio St. 427, 435; Miner v. Miner, 11 Ill. 43; Cornelius v. Cornelius, 31 Ala. 479; McGill v. McGill, 19 Fla. 341; Hillv. Hill, 49 Md. 450; 33 Am. Rep. 271; Rogers v. Rogers, 51 Ohio St. 1; Ex parte Gordan,95 Cal. 374, 377.) The wife could not stipulate away the rights of the children. (Pierce v. Pierce, 64 Wis. 72; 54 Am. Rep. 581.)\\nJackson Natch, for Respondent.\\nAside from the stipulation and decree, it is as much the duty of the mother as of the father to support the children. (Cush-man v. Hassler, 82 Iowa, 295; White v. White, 75 Iowa, 218; Fulton v. Fulton, 52 Ohio St. 229; 49 Am. St. Rep. 720; Pawling v. Wilson, 13 Johns. 192; Finch v. Finch, 22 Conn. 411; 2 Bishop on Marriage and Divorce, 4th ed., sec. 557.)\", \"word_count\": \"1817\", \"char_count\": \"10601\", \"text\": \"SEARLS, C.\\nThis is an appeal by the defendant from an order of the superior court in and for the county of Santa Clara, refusing to modify a decree of divorce, and to allow defendant one hundred dollars per month for the care, custody, and maintenance of Herbert N. and Minnie A. Parkhurst, aged seventeen and fifteen years respectively, the children of the parties hereto.\\nThe cause was heard in the court below upon the affidavits of the parties and of sundry other persons, and upon oral testimony taken in open court.\\nWritten findings were filed, from which it appears, among other things, that by a decree of the superior court entered February 29, 1,892, the marriage which had theretofore existed between plaintiff and defendant herein was dissolved; their property divided; the defendant herein receiving real property of the value of $10,000, and plaintiff received the residue of the community property, which is of the value of $11,681.\\nPlaintiff was indebted at the date of the decree in the sum of $11,800, which he has since reduced to $5,358.\\nDefendant also possessed at that date certain other money or money invested of the value of say $3,100 (presumably her separate property), of which she still has $1,600 invested with a son in Oregon.\\nThe decree awarded the two infant children to the custody of defendant, and provided that she be charged with their maintenance and education at her own cost and free from any charges against the plaintiff therefor; that she should not have any alimony or allowance from the plaintiff, and that she should not remove the children from the state of California, except by leave of the court.\\nThis decree, so far as the disposition of the property, custody of the children, waiver of alimony, costs, etc., was entered pursuant to a stipulation, entered into and signed by the parties, husband and wife. The admission of this stipulation in evidence was objected to by defendant, and the ruling against her is assigned as error.\\nPlaintiff married again after his divorce from defendant; had an income from bis business as a real estate and insurance agent of over three thousand dollars per annum until his health failed, and he was compelled to give up in part his business, and it is not probable he will in the future be able to do more than meet expenses and indebtedness.\\nSoon after the divorce defendant removed the children to Oregon, where she has cared for and educated them in a manner suited to their condition in life, and the court finds that \\\"no present necessity exists for any better support or any higher education than they have received and are receiving from the defendant.\\\"\\nAt the present time defendant's real property is encumbered to the extent of one thousand dollars, and yields a revenue of fifteen dollars per month, and she still retains a claim for sixteen hundred dollars for money loaned against her son, a business man, in Portland, Oregon.\\nThe foregoing constitutes an epitome of the findings upon which the court drew the conclusion of law that defendant was not entitled to the relief sought in her application.\\nWe need not stop to discuss the duty of parents to support and educate their minor children during the existence of the marital relation, or to those cases where, after the severance of that relation by a decree of divorce which consigns the custody of the infant children to the mother and is silent as to their maintenance.\\nOur Civil Code, section 138, provides that: \\\"In an action for divorce the court may, before or after judgment, give such direction for the custody, care, and education of the children of ' the marriage as may seem necessary or proper, and may at any time vacate or modify the same.\\\"\\nIn the present instance the court by its decree relegated the custody, maintenance, and control of the minor children of the marriage to the mother, the defendant herein, and provided that she should be charged with the education and maintenance of them at her own proper cost and free from any charges therefor against the plaintiff.\\nIn view of the disposition of the community property, this was no doubt a proper and equitable settlement as between the parties of the burden of caring for and maintaining the off spring. So far as we can see from tbe record, tbe plaintiff only received abont sufficient of tbe property to pay bis debts, while tbe defendant acquired property of tbe value of ten thousand dollars, free from all charge or encumbrance. She has nine thousand dollars in value of this property left. Tbe decree embodied tbe exact terms of tbe agreement or stipulation of tbe parties, and no reason is perceived why, as between themselves, defendant, who has reaped all tbe advantages of her contract, and which she does not aver was unjust in any of its parts, should not exercise tbe common honesty of carrying out its terms.\\nTbe authority of tbe court to modify tbe decree in a proper case, and to provide when necessary that tbe plaintiff shall discharge bis paramount duty in caring for and defraying tbe expense of educating bis children, is not doubted. Tbe stipulation of the parents cannot divest them, as against tbe children, of this duty. (Wilson v. Wilson, 45 Cal. 399.)\\nThis application is by tbe defendant, and, bad it been granted, would have inured to her benefit by casting tbe burden of maintaining and educating tbe children upon tbe plaintiff, and thereby preserving to her tbe property, which we must suppose was awarded to her at least in part for this very purpose. But it is contended by appellant that tbe stipulation in question was not admissible in evidence, that its admission was error. A previous understanding or agreement is not admissible to vary or modify a decree of divorce or to change tbe rights of tbe parties as determined thereby. (Wilson v. Wilson, supra.)\\nBut the stipulation here does not modify or change tbe judgment or tbe rights of tbe parties. On tbe contrary, it supports and upholds such judgment. It was tantamount to an agreed statement of facts upon which that portion of tbe decree relating to property rights, custody of tbe children, etc., was based, and hence was admissible in evidence.\\nThere is no specification of tbe particulars wherein the evidence was insufficient to justify the findings, and, had there been, we think the findings have ample support in the testimony. These findings show that the minor children are properly supported, maintained, and educated.\\nAs the application was without merit, the application for a counsel fee was properly denied.\\nWe recommend that the order appealed from be affirmed.\\nHaynes, C., and Belcber, C., concurred.\\nFor the reasons given in the foregoing opinion the order appealed from is affirmed.\\nMcFarland, J., Temple, J., Henshaw, J.\"}"

cal/12127512.json

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+"{\"id\": \"12127512\", \"name\": \"In the Matter of the Estate of MARTINA CASTRO DEPEAUX, Deceased\", \"name_abbreviation\": \"In re the Estate of Depeaux\", \"decision_date\": \"1897-09-15\", \"docket_number\": \"S. F. No. 825\", \"first_page\": \"290\", \"last_page\": \"290\", \"citations\": \"118 Cal. 290\", \"volume\": \"118\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T00:26:42.777782+00:00\", \"provenance\": \"CAP\", \"judges\": \"Harrison, J., and Garoutte, J., concurred'.\", \"parties\": \"In the Matter of the Estate of MARTINA CASTRO DEPEAUX, Deceased.\", \"head_matter\": \"[S. F. No. 825.\\nDepartment One.\\nSeptember 15, 1897.]\\nIn the Matter of the Estate of MARTINA CASTRO DEPEAUX, Deceased.\\nEstatus or Deceased Peesons\\u2014Obder Refusing Letteks or Administration\\u2014IMBUED FINDING\\u2014INSUFFICIENT BlLD OF EXCEPTIONS\\u2014APPEAD\\u2014 Evidence not Reviewabee.\\u2014Where an order refusing letters of administration of the estate of a deceased person is in general terms, it implies a finding against the petitioner upon all the material allegations of the petition; and if there is no specification of insufficiency of the evidence to justify the decision, the appellate court is precluded from looking into the evidence to ascertain its sufficiency to sustain the order.\\nAPPEAL from an order of the Superior Court of Santa Cruz County refusing letters of administration. J. H. Logan, Judge.\\nThe facts are stated in the opinion of the court.\\nJ. F. Utter, A. H. Cohen, and J. J. Serivner, for Appellant.\\nWilliam T. Jeter, and Charles B. Younger, for Eespondents.\", \"word_count\": \"270\", \"char_count\": \"1667\", \"text\": \"VAN FLEET, J.\\nAppeal from an order refusing a grant of letters of administration upon the estate of deceased to appellant.\\nThe record presented by appellant does not enable us to review the order of the court below in denying the application for letters. The order is general in terms, implying a finding against petitioner upon all the material allegations of the petition, and there is in the bill of exceptions no specification of insufficiency of the evidence to justify the decision. We are therefore precluded from looking into the evidence to ascertain its sufficiency; to sustain the order. (Winterburn v. Chambers, 91 Cal. 170, 185.)\\nOrder affirmed.\\nHarrison, J., and Garoutte, J., concurred'.\"}"

cal/12140346.json

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+"{\"id\": \"12140346\", \"name\": \"BARSTOW v. SAVAGE MINING CO.\", \"name_abbreviation\": \"Barstow v. Savage Mining Co.\", \"decision_date\": \"1883-12-26\", \"docket_number\": \"\", \"first_page\": \"499\", \"last_page\": \"503\", \"citations\": \"4 Colo. L. Rep. 499\", \"volume\": \"4\", \"reporter\": \"Colorado Law Reporter\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T21:55:18.158724+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BARSTOW v. SAVAGE MINING CO.\", \"head_matter\": \"BARSTOW v. SAVAGE MINING CO.\\n(Supreme Court of California,\\nDecember 26th, 1883.)\\nCertificate of Stock not Neogotiable\\u2014Sale of Stolen Certificates Passes no Title. Certificates of stock are not securities for money in any sense, and are not negotiable; and if shares of stock of a corporation standing in the name of A on the books of the corporation, owned by B, the certificate being properly indorsed, and if the certificate be stolen without the fault of B, the purchaser from the thief takes no title, and B may pursue the property.\", \"word_count\": \"1796\", \"char_count\": \"10364\", \"text\": \"Myrick, J.,\\ndelivered the opinion of the Court:\\nThe facts of this case, as presented in the findings, are substantially as follows:\\nPrior to February 5th, 1879, the defendant, the Savage Mining Company, duly issued its three certificates of stock, No. 24,843, certifying that C. A. Schmitt, trustee, is entitled to thirty shares of the capital stock of the said company, transferable on the books of the company by. indorsement on and surrender of the certificate, No. 25,537, in the name of Randolph, Mackintosh & Company, trustees, for ten shares, and No. 25,-704, in the name of Greenbaum, Helbing & Company, trustees, for ten shares, in like tenor as the first. On the 5th of February, 1879, the plaintiff purchased from the owners thereof, for value paid, the said fifty shares, and received the said certificates properly indorsed. Thereafter, on or about May 1, 1879, the said certificates were, without any fault or negligence of the plaintiff, stolen from him, and were on the 6th of May, 1879, sold and delivered by the thief to the defendant Rogers, he, Rogers, purchasing the same in the usual course of business for value, without notice of any defect in his vendor's title. The plaintiff never sold the certificates or the stock which they represent, or authorized or acquiesced in, or ratified such sale. On the 30th of May, 1879, plaintiff demanded of the defendant, Rogers, the return of the certificates, and Rogers refused to deliver them. The intervenor, Kutz, purchased the certificate for thirty shares, subsequently to the theft, in the ordinary course of business, for value, without notice of any defect in his vendor's title, and whatever title he (Kutz) has, he derived from Rogers. None of said fifty shares have been transferred on the books of the company from the names of the parties set forth in said certificates, except the ten shares represented by certificate No. \\\"25,537, which have been sold for assessments. After the theft the plaintiff duly demanded of the company a transfer of said fifty shares from the names in which they stand as aforesaid, to his own name, and the issuance to him of a certificate therefor, and such transfer and'issuance were refused. On the 11th of August, 1879, the intervenor presented certificate No. 24,843 to the company, offered to pay any assessment levied on the stock represented thereby, and demanded a transfer to himself of the thirty shares, and the issuance to him of a new certificate, which transfer and issuance were refused on the ground that the company had already been notified by plaintiff of his ownership of the stock and of the theft, and been directed to stop transfer thereof, and had been, in connection with Rogers, sued by plaintiff concerning the ownership of the stock. The Court then found as to the value of the stock at different times involved in the transactions. From these facts the Court below concluded as law that the intervenor, Kutz, was entitled to judgment against the plaintiff and the company for his costs, and against the company for $460 damages, and that the defendant, Rogers, was entitled to judgment against the plaintiff for his costs, and rendered judgment accordingly. From this judgment the plaintiff appealed.\\nIt will be seen from the foregoing, that the question for consideration is, if shares of stock of a corporation standing in the name of A on the books of a corporation be owned by B, the certificate being, properly indorsed, and if the certificate be stolen without the fault or negligence of B, does the purchaser from the thief take title so as to prevent B from claiming the property ?\\nFirst\\u2014It is well known to be the general rule that a thief acquires no title to stolen property, and that he can pass none. \\\"The mere possession of chattels, by whatever means acquired, if there be no other evidence of property or authority to sell from the true owner, will not enable the possessor to give a good title.\\\" (Covill v. Hill, 4 Denio, 323.) To the general rule above stated there are exceptions as to money and negotiable securities.\\nSecond\\u2014A negotiable instrument is defined to be \\\"a written promise or request for the payment of a certain sum of money to order or bearer.\\\" (Sec. 3087, Civil Code.) There are six classes of negotiable instruments, namely: 1, bills of exchange ; 2, promissory notes; 3, bank notes; 4, checks; 5, bonds; 6, certificates of deposit. Sec. 3095, Civil Code.\\nA certificate of stock, namely, that A is the owner of shares of stock in an incorporated company, is not a promise or request for the payment of money, nor does it contain any of the elements of such promise or request. \\\"A negotiable instrument must not contain any other contract than such as is specified in this article.\\\" Sec. 3093, Civil Code.\\n\\\"The distinction between all these [notes, bills, corporation bonds] and corporate stocks is marked and striking. Certificates of stock are not securities for money in any sense, much less are they negotiable securities. They are simply the muniments and evidence of the holder's title to a given share in the property and franchises of the corporation.\\\" Mechanic's Bank v. New York, etc., R. Co., 13 New York, 627; Sherwood v. Meadow Valley Mining Co., 50 Cal., 412.\\nThe case last above cited, Sherwood v. Meadow Valley Mining Co., was an action based on the following facts: One Schmeidell was the owner of twenty shares of the stock of the defendant and held a certificate therefor, issued to himself as trustee, and he sold the shares and delivered the certificate, properly indorsed, to Levy, who lost the same, not having had the stock transferred on the books of the corporation. The plaintiff pur chased, as he supposed, the stock, and received delivery of the certificate, for value, in the usual course of his business as a stock broker. It was held that the plaintiff acquired no right to the stock.\\nIn the subsequent case of Winter v. Belmont Mining Co., 53 Cal., 428, the facts were that Winter was the owner of certain shares of stock, and had them transferred on the books of the company to the name of \\\"M, trustee,\\\" who indorsed the certificates in blank, and delivered them to Winter. Subsequently M stole the certificates from Winter, and sold them in the market in the ordinary course of business. The Court, in commenting on the statute providing that shares of stock may be transferred by indorsement and delivery of the certificate, but that the transfer is not valid except as between the parties until entered on the books of the corporation, and on certain prior cases holding that until such entry, the stock may be sold on execution against the person in whose name the stock stood, applied that principle to the case before it of stolen certificates, and held that the purchaser from M, the thief, took a good title. We are not prepared to follow that case, Winter v. Belmont Mining Co., in what is said in the opinion regarding the negotiability of certificates of stock; but, on the contrary, are of opinion that the principle that the thief of stolen property, it not being money or negotiable securities, can pass no title, should be maintained, unless the facts presented by a case should bring it within the law as stated in McNeil v. The Tenth National Bank, 46 N. Y., 325: \\\"When the owner of property confers upon another an apparent title to or power of disposition over it, he is estopped from asserting his title as against an innocent third party who has dealt with the apparent owner in reference thereto without knowledge of the claims of the true owner.\\\" Upon referring to the transcript in Winter v. Belmont Mining Co., we observe the findings of the Court state that Winter delivered his certificates to M with permission that the latter have the shares of stock transferred on the books and certificates issued to him, M, for the purpose of enabling the said M to vote at the then coming election as the owner of said stock. Here was an element upon which, perhaps, it might properly be held that Winter was estopped from saying, as to an innocent purchaser, the title did not pass; be cause, for one purpose sat least, viz: to vote, he had authorized M to appear to be and act as the owner.\\nBut if the purchaser from one who has not the title, and has no authority to sell, relies for his protection on the negligence of the true owner, he must show that such negligence was the proximate cause of the deceit.\\nIn the case at bar, the owner, Barstow, did not clothe the thief with any apparent power to pass title. The certificates, though properly indorsed, remained'in the names of the former owners, and when Rogers purchased he was not dealing with any one who had apparent authority from the owner to make a disposition of the stock ; he dealt with one having nothing beyond bare possession, which, as said above, does not clothe the possessor with the power of selling.\\nIn conclusion, then, we are of opinion, and decide, that where stock of an incorporation stands on the books in the name of A, and the stock is owned by B, and the certificate, though properly indorsed, is stolen from B without his fault, the thief can pass no title and B may pursue his property.\\nThe judgment is reversed and the cause is remanded, with instructions to render judgment in favor of plaintiff, but it is not manifest that the plaintiff can have judgment against Rogers for the value of the stock, and also that the corporation issue new certificates to him; he may have one or the other, as he elects, but not both. It is stated in the findings that the shares represented by certificate No. 25,537, have been sold for assessments. Plaintiff being the owner of thos\\u00e9 shares, he should have paid the assessments, and neither Rogers nor the corporation should have been held responsible for his omission to do so.\"}"

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+"{\"id\": \"12513876\", \"name\": \"Maxine STEWART, as Personal Representative, etc., Petitioner, v. The SUPERIOR COURT of San Bernardino County, Respondent; St. Joseph's Health et al., Real Parties in Interest.\", \"name_abbreviation\": \"Stewart v. Superior Court of San Bernardino Cnty.\", \"decision_date\": \"2017-10-12\", \"docket_number\": \"E067316\", \"first_page\": \"219\", \"last_page\": \"237\", \"citations\": \"224 Cal. Rptr. 3d 219\", \"volume\": \"224\", \"reporter\": \"West's California Reporter\", \"court\": \"Court of Appeal, Fifth District, California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-09-08T21:16:17.237805+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"Maxine STEWART, as Personal Representative, etc., Petitioner,\\nv.\\nThe SUPERIOR COURT of San Bernardino County, Respondent;\", \"head_matter\": \"Maxine STEWART, as Personal Representative, etc., Petitioner,\\nv.\\nThe SUPERIOR COURT of San Bernardino County, Respondent;\\nSt. Joseph's Health et al., Real Parties in Interest.\\nE067316\\nCourt of Appeal, Fourth District, Division 2, California.\\nFiled October 12, 2017\\nCertified for Partial Publication.\\nMcMahan Law, Carl A. McMahan and Mark J. Habeeb for Petitioner.\\nNo appearance for Respondent.\\nBrobeck, West, Borges, Rosa & Douville, Louise M. Douville and Edward J. Reid for Real Parties in Interest.\\nPetitioner, Maxine Stewart, brings causes of action as the personal representative of an estate. Previous orders we issued in this case indicated that Bettina Gray, Jordon Carter, Paul Carter, and Regina Carter were also petitioners, as they are plaintiffs alongside Stewart in the trial court action. Upon further review, it appears Gray and the Carters assert a single cause of action for wrongful death, which was unaffected by the summary adjudication order the petition asks us to review. Consequently, they should not be parties to this petition. We have amended the caption accordingly.\\nPursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts 2 and 3.\", \"word_count\": \"9485\", \"char_count\": \"58708\", \"text\": \"RAMIREZ, P. J.\\nThe petition in this case challenges a trial court order summarily adjudicating a cause of action under the Elder Abuse and Dependent Adult Civil Protection Act (the Act), a cause of action for fraud by concealment, and another for medical battery, while allowing other claims, including one for medical negligence, to proceed to trial. Stewart is the representative of Anthony Carter, a man who died after admission to a hospital owned by real parties in interest. She alleges the hospital \\\"denied and withheld from Mr. Carter the right to refuse an unnecessary surgery, denied and withheld from Mr. Carter the right to be involved in secret hospital meetings to invalidate his designated consent, and denied and withheld from Mr. Carter his right to a second opinion prior to proceeding with an unwarranted surgery that resulted in a hypoxic injury, brain damage, cardiac arrest and his untimely death.\\\" Having concluded the petition might have merit, we stayed the action in the trial court and requested an informal response. Having received and read the \\\"return by verified answer\\\" that was filed by real parties in interest, we then set an order to show cause and requested further briefing on a specific issue.\\nReal parties in interest decided to stand on their informal response in lieu of filing another brief, and Stewart declined to file a traverse.\\nWe now explain why we conclude we must grant the petition. Furthermore, we find it important to emphasize that elders have the right to autonomy in the medical decision-making process. We therefore publish the portion of this opinion that discusses the cause of action for elder abuse to explain how, in our view, a substantial impairment of this right can constitute actionable \\\"neglect\\\" of an elder within the meaning of both the little-invoked catchall definition contained in Welfare and Institutions Code section 15610.57, subdivision (a)(1), and two of the types of neglect that are set forth in Welfare and Institutions Code section 15610.57, subdivision (a)(2).\\nPETITIONER'S ALLEGATIONS\\nThe operative pleading alleges the following: Real parties in interest own and operate a hospital called St. Mary Medical Center. On February 1, 2012, Carter, who was 78 years old and experiencing confusion, became a patient at St. Mary. He named Stewart, who was at all relevant times a registered nurse with an active license, his durable power of attorney for health care decisions during this admission.\\nTimothy A. Denton, M.D., one of St. Mary's codefendants, told Stewart two days after Carter's admission that she should consider placing Carter in hospice care, as well as inserting a gastronomy tube (g-tube ). Stewart objected, and Dr. Denton agreed to order a calorie count instead of a g-tube.\\nSome of the defendants, including real parties in interest, planned to perform surgery and implant a pacemaker in Carter, in part because he was experiencing four-second gaps in his heartbeat. On February 7, 2012, Stewart canceled a pacemaker procedure and told real parties in interest she thought the four-second pauses were related to Carter's sleep apnea. She requested a second opinion regarding Carter's need for a pacemaker and opined that he had never previously shown \\\" 'clear indicators' \\\" that he needed one.\\nAlso on February 7, 2012, Dr. Denton, real parties in interest, and others told Stewart that Carter required a g-tube because he was not receiving adequate calories. Petitioner asked them to try parenteral nutrition (TPN) instead of a g-tube, but they \\\"refused to consider and/or abide by this request.\\\"\\nOn February 17, 2012, real parties in interest and the other defendants informed Stewart that a pacemaker procedure was scheduled for the following day. Stewart \\\"stated that she would absolutely not consent to such a procedure\\\" and again requested a second opinion.\\nThe next day, real parties in interest and some of the other defendants, including Dr. Denton, determined through St. Mary's risk management department that they could continue with the pacemaker procedure despite petitioner's objection. Stewart had at no time consented to this procedure and had instead expressly objected to it.\\nOn February 22, 2012, Stewart contacted St. Mary to inquire about Carter and learned he had not had breakfast because he was scheduled for surgery. Stewart again objected to the pacemaker procedure. When Stewart arrived at St. Mary at approximately noon, she was informed the surgery had occurred at 8:30 that morning. Stewart met with several of real parties in interest's representatives, who told her they had proceeded without her consent because she was not acting in Carter's best interests.\\nCarter went into cardiac arrest sometime on or about February 22, 2012. On information and belief, this occurred because Carter did not need the pacemaker. The pacemaker was surgically removed on February 24, 2012. Carter, who had experienced brain damage, required acute skilled nursing care until his death on April 15, 2013.\\nPROCEDURAL BACKGROUND\\nStewart named St. Mary, Dr. Denton, and others on several causes of action in the operative pleading. St. Mary moved for summary adjudication of most of these causes of action. As relevant to this petition, it argued the elder abuse claim failed because holding an ethics committee meeting about Stewart's power of attorney over Carter could not amount to reckless neglect within the meaning of the Act. The fraudulent concealment claim, St. Mary contended, failed because a hospital owes no fiduciary duty to a patient, and the medical battery claim was allegedly insufficient because the hospital itself did not perform the surgery and the doctors who performed the surgery were not hospital employees.\\nFor evidentiary support for these assertions, St. Mary largely relied on a declaration from Mary Ransbury, R.N., a licensed registered nurse and wound care specialist; we discuss this declaration post . Using the testimony of various deponents, including Dr. Denton, St. Mary also established the following background facts and occurrences:\\nDr. Denton thought a pacemaker \\\"was clearly indicated\\\" for Carter due to \\\"long [cardiac] pauses\\\" requiring intervention by a specialist. Dr. Denton therefore referred Carter to another codefendant, Ramin Ashtiani, M.D., who eventually made the decision to implant the pacemaker and then actually performed the pacemaker surgery.\\nWhen Stewart refused to consent to a pacemaker procedure, Dr. Denton asked St. Mary's risk management department for a consultation regarding concerns he had about Carter's power of attorney. The risk management department decided to convene an ethics committee meeting. Dr. Denton, who participated in the meeting by phone, \\\"stressed the patient could die\\\" if he did not receive a pacemaker and said he did not feel Stewart was acting in his best interests because Dr. Denton knew Carter would \\\"want everything done to save his life.\\\" There was a suspicion \\\"that there might be a conflict with Ms. Stewart.\\\" After a meeting on a Friday afternoon, an \\\"action plan\\\" was reached that \\\"the power of attorney was valid.\\\" However, the committee also concluded that Stewart could be voided as Carter's designee if she failed to authorize lifesaving measures, because \\\"the language of the power of attorney stated, in essence, that all measures were to be taken to preserve [Carter's] life.\\\" At some point in time after the meeting, Stewart was in fact voided as the designee of Carter's power of attorney. At his deposition, Dr. Denton admitted he did not consult with any doctor other than Dr. Ashtiani about Carter's pacemaker procedure. Instead, he contacted St. Mary's risk management department and said something like, \\\"Please help me with this case. There are lots of legal issues going on. There is a power of attorney that I think is problematic, and I don't have a clue what to do about this.\\\"\\nDr. Denton described the ethics committee's role in the surgery as follows: \\\"[W]hat happens is that I provide risk management with information and they make a decision about what to do. [\\u00b6] . [\\u00b6] For example, since I don't implant pacemakers, they will say 'Go ahead. The pacemaker is indicated. It's okay to do that.' And then the pacemaker can be done by the person doing the procedure.\\\" For his part, Dr. Ashtiani, when asked if the risk management department \\\"gave [him] the green light\\\" to perform the pacemaker surgery, responded, \\\"If medically necessary, from paper standpoint, we are okay to do that.\\\"\\nIn conjunction with its argument regarding the cause of action for medical battery, St. Mary also offered an admission form showing Carter had signed his name next to an advisement that all \\\"Physicians and Surgeons furnishing services to the patient . are independent contractors and are not employees of the hospital.\\\" St. Mary otherwise relied on discovery responses and the aforementioned Ransbury declaration.\\nThe bulk of this declaration addressed allegations that St. Mary failed to provide adequate wound care to Carter, which does not concern us for the reasons stated in footnote 2, ante . In fact, only the last paragraph of the Ransbury declaration discussed the ethics committee meeting or the topic of Carter's consent to the pacemaker surgery. That paragraph reads: \\\"Finally, plaintiffs allege in their operative Complaint that hospital defendants fraudulently concealed from Maxine Stewart the fact that Mr. Carter was to undergo pacemaker implantation surgery. Based on my review of the above-referenced materials, I note that the sole determination of the Ethics Committee was that the Power of Attorney was valid and that the Power of Attorney indicated that all life-saving measures were to be done for Carter. The Ethics Committee did not decide whether or not to operate on Mr. Carter. This decision to perform surgery was made by Dr. Ashtiani. This stands to reason given that a patient's surgeon is the one who determines whether a surgical procedure is appropriate and should be performed, not the hospital staff where the surgery is to take place. Accordingly, based on my review of the above noted materials and my education, training and experience, I conclude that hospital defendants had no duty to inform Maxine Stewart that Mr. Carter was to undergo surgery. If such a responsibility existed under the circumstances it would be Dr. Ashtiani's as he was Carter's treating physician and surgeon.\\\"\\nStewart filed written opposition to St. Mary's summary judgment motion. She generally argued that declarations from two medical experts, Vikram Rajan, M.D., and Charles Pietrafesa, M.D., created triable issues of material fact regarding the standard of care and causation. Dr. Pietrafesa, who focused most of his opinions on the ethics of conducting an ethics committee meeting as occurred in this case, discussed in detail his opinion \\\"that the decision to implant a permanent pacemaker without appropriate informed consent on this patient fell below the standard of care in the medical community.\\\" He was of the opinion that anyone who wanted to operate on Carter without Stewart's consent was required to obtain a court order, as well as that petitioner or her representative should have been at the ethics committee meeting, which he called a \\\"sham.\\\" Finally, Dr. Pietrafesa concluded that the act of \\\"authorizing and proceeding with this unnecessary surgery directly resulted in the patient's cardiac arrest and resulting death.\\\" For his part, Dr. Rajan opined that Dr. Denton breached the standard of care by informing St. Mary that the \\\"surgery to implant a permanent pacemaker was a life threatening condition that required immediate action.\\\" In Dr. Rajan's opinion, there was no evidence that a pacemaker was needed on an emergency basis. Like Dr. Pietrafesa, Dr. Rajan determined that the pacemaker surgery led to Carter's death.\\nIn addition to the declarations of Dr. Pietrafesa and Dr. Rajan, Stewart relied in part on evidence in the form of doctor's notes from Carter's medical file. These establish the following:\\nDr. Denton noted on the February 1, 2012 admission form that Carter had \\\"a long complex history\\\" and described Carter's social environment as \\\"fairly supportive.\\\" After a consultation that occurred the day after Carter's admission, a different doctor described him as \\\"markedly somnolent\\\" and indicated that he \\\"open[ed his] eyes only transiently.\\\"\\nOn February 6 or 7, 2012, Dr. Denton completed a doctor's note regarding \\\"extensive discussions\\\" he had with Stewart regarding Carter's caloric intake on an undisclosed date. The note reflects that Stewart asked to wait until after a calorie count was completed before placing a g-tube, and that she still did not want a g-tube. She said Carter was \\\"taking in more calories now\\\" after Dr. Denton indicated Carter was not consuming adequate nutrition. Although Dr. Denton agreed to make a final decision about g-tube placement later, he indicated he would ask to have Carter \\\"observe[d] during the intervals when the family is in the room.\\\"\\nRajeev Yelamanchili, M.D., is the doctor who had previously treated Carter for sleep apnea, as alleged in the operative pleading. On February 7, 2012, Dr. Yelamanchili consulted with Carter regarding \\\"obstructive sleep apnea syndrome [ (OSA) ] with sinus pauses\\\"; he stated Carter had been diagnosed with \\\"severe OSA . 2 years back.\\\" He suggested treating Carter's apnea\\\"to see how the sinus pauses are,\\\" said he would be \\\"happy to follow [Carter] as an outpatient after discharge,\\\" and indicated a repeat study might need to occur because Carter had lost a significant amount of weight. Dr. Yelamanchili's report concludes with: \\\"If the follow up study fails to reveal evidence of OSA with sinus pauses then permanent pacemaker will be indicated. I have informed this to the wife and she is satisfied.\\\"\\nOn February 8, 2012, Arnab Biswas, DO, provided a consultation regarding placement of a g-tube because Carter was \\\"unable to take anything by mouth.\\\" Dr. Biswas noted Carter was \\\"a very poor historian. He only grunts and mumbles and is unable to provide any intelligible history.\\\" Because Stewart was \\\"unavailable,\\\"\\nDr. Biswas was forced to obtain much of Carter's history from records and physical examination. Dr. Biswas indicated that someone would discuss \\\"risks and benefits of\\\" g-tube placement with Stewart, as well as that \\\"TPN would be a good short-term solution\\\" if a g-tube was intolerable or impossible.\\nThe next doctor's note in chronological order is signed by Dr. Denton and dated February 18, 2012. After a notation that \\\"[m]uch has happened over the last 24 hours,\\\" Dr. Denton described the ethics committee meeting and the decision reached thereat. He then remarked: \\\"Given this, [Stewart] was contacted by the nursing staff stating we are going to be moving forward with appropriate care of this patient. [\\u00b6] What is also clear is that Adult Protective Services has been called and are anxiously await [sic ] my interview with Adult Protective Services. [\\u00b6] So what we have now is, we now have the freedom to provide appropriate care for this patient and today we will be trying to find the appropriate calorie count.\\\" After recounting that Carter was oriented to person but not place or time, Dr. Denton opined that Carter \\\"[c]learly\\\" could not make decisions on his own. He then wrote: \\\"If the document is legal, if the power of attorney is legal, then we will proceed appropriately. If the power of attorney is not legal, then we will proceed appropriately with the exact same therapy.\\\" The February 18, 2012 doctor's note concluded by indicating that Dr. Denton was waiting for a final calorie count but planned to order g-tube placement and that he would \\\"be making determination regarding the appropriateness of permanent pacemaker placement, even though he has already had a 4 second pause.\\\"\\nDr. Ashtiani prepared a report after the pacemaker surgery on February 21, 2012. He acknowledged Carter's sleep apnea but stated, \\\"it was determined that patient will definitely benefit from pacemaker due to prevention of malignant form of arrhythmia and its complications especially if it happens and provoked during episodes of sleep apnea.\\\" Next, Dr. Ashtiani commented that Stewart had previously revoked consent to the pacemaker surgery and said he told Dr. Denton he \\\"basically discharged [him]self from the rest of the care for the patient.\\\"\\nDr. Ashtiani then wrote: \\\"Again, I was contacted by Dr. Denton since he had frequent and multiple discussions with the patient's girlfriend due to different medical issues and need for medical intervention and refusal of her to help the patient. She provided with a paper stating as power of attorney which was obtained when the patient was not alert and oriented, to be able to consent for that. Basically, this lady never had any power of attorney, in order to have any legal thing about the case and she of course did not seem to be his best advocate when he needed the most. For that reason, risk management from the hospital got involved and they determined that we should proceed to implant a pacemaker if medically is necessary. I had this discussion with Dr. Kyle as well as Dr. O'Brien and he agreed upon the planned procedure based on this discussion. I also spoke with Dr. Yelamanchili, the pulmonologist and he also agreed upon the planned procedure and the logic behind the implantation of the device. For those mentioned reason, we decided to proceed with the implantation of the device.\\\" The final sentence before the report's conclusion section is: \\\"I need to mention, the consent was signed by two physicians which was advocated through risk management, myself, and Dr. Denton.\\\"\\nThe final doctor's order contained in our record was prepared by Carter's discharging physician, Huy Nguyen, M.D. The note explained that Dr. Denton had admitted Carter, but that Dr. Nguyen \\\"took over as the primary care physician on request of [Stewart] who has verbal power of authority for second opinion.\\\" After initially deeming it inappropriate to remove the pacemaker as Stewart had requested, Dr. Nguyen later consulted with Dr. Arshia Noori and decided to remove the pacemaker, after all. This was because, \\\"on review of the telemonitor strips, it looks like the RV lead was not adequately . placed, is autocapturing and then it sent him into cardiac ventricular fibrillation.\\\"\\nIn addition to these doctor's notes and related records concerning Carter, Stewart relied on deposition testimony from numerous witnesses when opposing St. Mary's summary judgment motion. Stewart herself testified that Carter first gave her authority to make medical decisions on his behalf in 1998 or 1999. She said when she asked Dr. Denton about trying TPN instead of a g-tube during Carter's 2012 admission to St. Mary, his response was, \\\"Absolutely not.\\\" He gave no reason. When asked whether, based on her education and training as a nurse, Stewart had developed an impression as to why Dr. Denton might have rejected TPN, her response was, \\\"I believe he wanted [Carter] to be put in a care facility.\\\" Stewart confirmed that Carter had been seeing Dr. Yelamanchili for sleep apnea\\\"[f]or many years,\\\" and she reported that, when Dr. Denton first told her he recommended a pacemaker, she said, \\\"That's because he has sleep apnea. . He needs to be on a CPAP machine.\\\" Stewart's \\\"next step\\\" was to contact Dr. Yelamanchili, which she did \\\"the next moment [she] was able to speak to him.\\\" When Stewart \\\"told [Dr. Yelamanchili] that Dr. Denton wanted to put in a pacemaker, [Dr. Yelamanchili] said, 'We don't need to do anything invasive. He needs a CPAP machine.\\\" Stewart then testified that a St. Mary employee called to tell her a pacemaker surgery had been scheduled; Stewart \\\"just told them, 'I'm not consenting,' and that [she] wanted a second opinion.\\\"\\nOne of the other deponents on whose testimony Stewart relied is Susan Alvarez, who was asked by her director, Mia Bunch, to participate in the ethics committee meeting \\\"as a member of the risk management team.\\\" Alvarez explained that Dr. Denton called Bunch, in her capacity as St. Mary's risk manager, to discuss concerns he had regarding Carter's care. Sometime before noon on Friday, February 17, 2012, the ethics team, including Alvarez, met in a conference room; Dr. Denton participated by telephone. The meeting lasted approximately 20-30 minutes and included Alvarez, a case manager named Minda, someone from social services, a woman named Mary, and a nonclinical employee named John Perring-Mulligan. Avarez is \\\"not clinical, either.\\\" No one \\\"from [Carter's] side\\\" attended. Later the same day, Alvarez, Bunch, and Perring-Mulligan met in the office of St. Mary's CEO to discuss \\\"what the concerns were.\\\" Dr. Denton was not present at all, but at least one attorney participated by telephone. After meeting for \\\"[m]aybe 20 minutes,\\\" the \\\"action plan,\\\" or the determination that the power of attorney was valid but that Stewart was voided as the designee, was made. In \\\"the second part of\\\" this meeting, Bunch was to contact Dr. Denton and tell him about the action plan.\\nAlvarez explained that, on Tuesday, February 22, 2012, she, Bunch, Dr. O'Brien, and others met with Stewart, who first learned that the pacemaker surgery had occurred. As Alvarez admitted, \\\"the surgery went forward anyway against Maxine Stewart's directive not to proceed.\\\" In response to a question implying Dr. Denton had suggested Stewart had some kind of financial motive for refusing the pacemaker, Alvarez stated: \\\"What I recall why he was talking about finances and he was saying that he knew-he knew [Carter], you know, through his office, basically like he's cared for this patient, and he just said that she-maybe it-it could be. I mean he really didn't say why, but he said financial, you know. You need to look at the financial aspect, or he mentioned something about her taking control of money, but that's when our person said, 'That part we don't talk about.' [\\u00b6] . [\\u00b6] John [Perring-Mulligan] basically shut that down.\\\"\\nBunch's deposition testimony adds the following additional details. Neither Dr. Ashtiani (the surgeon who implanted the pacemaker), Dr. Yelamanchili (the pulmonologist who treated Carter for sleep apnea ), nor Dr. Biswas (the author of the \\\"poor historian\\\" doctor's note) participated in the ethics process. Rather, \\\"[i]t was Dr. Denton, from an M.D. standpoint, that was involved in that decision.\\\" Although she would not speculate as to his meaning, Bunch admitted Dr. Denton, when told of the action plan, spoke the words, \\\"So my posterior is covered.\\\" Bunch also authenticated a note she had written, which reads, \\\"Explained conversation with [power of attorney] Maxine wanting second opinion. Dr. Denton stated, 'I won't do that.' \\\"\\nStewart also noted Dr. Denton's deposition testimony established that he and Dr. Ashtiani were both members of the same medical group when they provided care to Carter. Her trial court brief in opposition to St. Mary's motion alleged that \\\"Dr. Denton specifically pushed for the placement of a permanent pacemaker by Dr. Ashtiani, an electrophysiologist, his partner and a surgeon in the same group.\\\"\\nFinally, Stewart offered deposition testimony from Dr. Nguyen and Dr. Noori. Both testified that Carter did not require a pacemaker on an emergency basis. Dr. Noori explained that Carter went into cardiac arrest after a lead from the pacemaker dislodged.\\nShortly before the hearing on St. Mary's motion for summary judgment and/or adjudication, the trial court heard a similar motion by Dr. Denton. Finding triable issues of material fact existed regarding breach and causation, the court denied Dr. Denton's motion as to Stewart's cause of action for professional negligence. The trial court found the motion procedurally improper as to the elder abuse claim, but it summarily adjudicated the cause of action for medical battery because Dr. Denton \\\"did not physically perform the unconsented surgery.\\\" Finally, at least as relevant to this petition, the trial court denied the motion as to Stewart's cause of action for fraudulent concealment. With respect to the latter ruling, the trial court explained: \\\"the February 18, 2012 notes suggest [Dr.] Denton was prepared to ensure the procedure no matter what by involving Adult Protective Services, [Dr.] Denton advocated for the surgery to the committee, and [Dr.] Denton said 'I won't do that' when asked about a second opinion. Thus, a jury could infer that the failure to inform Stewart the surgery would occur was an intentional effort to conceal the scheduling of the surgery.\\\"\\nAs previously indicated, the trial court granted St. Mary's motion for summary judgment and/or adjudication, but only as to the causes of action for elder abuse, medical battery, and fraudulent concealment. The court explained it was granting the motion as to the elder abuse claim because \\\"[i]nterpreting the power of attorney then letting a . surgery occur was not withholding care or not within custodial capacity.\\\" With respect to medical battery, the court's ruling was \\\"the same as . [Dr.] Denton's case,\\\" or that St. Mary could not be liable because Dr. Ashtiani performed the surgery. The trial court reasoned that St. Mary \\\"didn't direct anybody to do the procedure. Dr. Denton signed the authorization. Ashtiani performed the procedure. Again, the hospital just offered an opinion regarding the health directives in this case.\\\" Despite denying summary adjudication on the fraudulent concealment claim when Dr. Denton moved for summary judgment, the trial court granted St. Mary's motion as to that cause of action on the theory that a hospital owes no fiduciary duty to one of its patients.\\nStewart lodged evidentiary objections to St. Mary's evidence in conjunction with her opposition, and St. Mary, in reply, did the same with respect to Stewart's evidence. Our record contains no indication that the trial court ruled on these objections; any such objections are therefore presumed overruled and preserved on appellate review. ( Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534, 113 Cal.Rptr.3d 327, 235 P.3d 988.) Stewart does not argue the merits of any of her evidentiary objections in this court. St. Mary does, but only by including in the response a \\\"respectful[ ] request [that] this [c]ourt consider [its] written objections to Petitioners' expert declarations and disregard the objectionable material therein.\\\" We decline the invitation, as \\\"[t]his court is not inclined to act as counsel for . appellant and furnish a legal argument as to how the trial court's rulings . constituted an abuse of discretion.\\\" ( Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546, 35 Cal.Rptr.2d 574.) We therefore consider all the evidence in the record before us.\\nDISCUSSION\\n\\\"A party may move for summary adjudication as to one or more causes of action within an action . if the party contends that the cause of action has no merit, .\\\" ( Code Civ. Proc., \\u00a7 437c, subd. (f)(1).) \\\"A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.\\\" (Id ., subd. (f)(2).)\\n\\\"A defendant making the motion for summary adjudication has the initial burden of showing that the cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. [Citations.] If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff's opposing evidence and the motion must be denied. However, if the moving papers establish a prima facie showing that justifies a judgment in the defendant's favor, the burden then shifts to the plaintiff to make a prima facie showing of the existence of a triable material factual issue. In meeting this obligation, the plaintiff may not rely on the mere allegations of its pleadings, but must 'set forth the specific facts showing that a triable issue of material fact exists as to that cause of action. .' [Citation.] 'There is a triable issue of fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.' \\\" ( Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 81-82, 12 Cal.Rptr.3d 97 ( Intrieri ).)\\nSummary adjudication rulings may be reviewed by writ of mandate. ( Code Civ. Proc., \\u00a7 437c, subd. (m)(1).) In this case, writ review is particularly warranted because a second trial would be necessary if we required Stewart to wait until an appeal from the final judgment before deciding that summary adjudication of the causes of action for elder abuse, fraudulent concealment, and medical battery was improper. ( Noe v. Superior Court (2015) 237 Cal.App.4th 316, 324, 187 Cal.Rptr.3d 836.) Although we independently review orders granting summary adjudication, we still \\\" 'must \\\"consider all of the evidence\\\" and \\\"all\\\" of the \\\"inferences\\\" reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.' [Citation.] The trial court's stated reasons for granting summary adjudication are not binding on the reviewing court, which reviews the trial court's ruling, not its rationale.\\\" ( Intrieri , supra , 117 Cal.App.4th at p. 81, 12 Cal.Rptr.3d 97.)\\n1. The trial court erred in summarily adjudicating the elder abuse cause of action\\nStewart argues the trial court erred in summarily adjudicating her cause of action for elder abuse because there are triable issues of material fact regarding whether \\\"denial of care and abuse of custodial power [occurred] with respect to the unauthorized surgical procedure to implant a pacemaker.\\\" In response, St. Mary asserts its act of conducting an ethics committee meeting about the power of attorney was not an act implicating custodial duties toward Carter. Because, as we now explain, a reasonable jury could find that St. Mary recklessly and/or fraudulently failed to meet its custodial obligations toward Carter, Stewart's position has more merit.\\n\\\" '[The Act] affords certain protections to elders and dependent adults. Section 15657 of the Welfare and Institutions Code provides heightened remedies to a plaintiff who can prove \\\"by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57,\\\" and who can demonstrate that the defendant acted with \\\"recklessness, oppression, fraud, or malice in the commission of this abuse.\\\" [Welfare and Institutions Code s]ection 15610.57, in turn, defines \\\"[n]eglect\\\" in relevant part as \\\"[t]he negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.\\\" ' [Citation.]\\\" ( Winn , supra , 63 Cal.4th at p. 152, 202 Cal.Rptr.3d 447, 370 P.3d 1011.) \\\"The Act seems premised on the idea that certain situations place elders and dependent adults at heightened risk of harm.\\\" ( Id. at pp. 159-160, 202 Cal.Rptr.3d 447, 370 P.3d 1011.)\\nHowever, the Winn court emphasized that the Act is \\\"not meant to encompass every course of behavior that fits either legal or colloquial definitions of neglect.\\\" ( Winn , supra , 63 Cal.4th at p. 159, 202 Cal.Rptr.3d 447, 370 P.3d 1011.) Rather, \\\"neglect [under the Act] requires a caretaking or custodial relationship that arises where an elder or dependent adult depends on another for the provision of some or all of his or her fundamental needs.\\\" ( Id. at p. 160, 202 Cal.Rptr.3d 447, 370 P.3d 1011.)\\nTo us, it appears Carter depended on St. Mary to meet his basic needs in ways that establish the type of custodial relationship described by the Winn court. In fact, we note Carter's admission to an acute care facility such as St. Mary, standing alone, would have been sufficient to make him a \\\"dependent adult\\\" who would be entitled to the Act's protections even if he had not also qualified as an \\\"elder\\\" by virtue of his age. ( Welf. & Inst. Code, \\u00a7 15610.23, subd. (b) [definition of \\\"dependent adult\\\"], 15610.27 [definition of \\\"elder\\\"]; Health & Saf. Code, \\u00a7 1250, subd. (a) [definition of \\\"general acute care hospital\\\"].) The facts of this case further support our conclusion, as Carter was experiencing confusion upon admission, and a doctor's note prepared a week after admission describes him as a \\\"very poor historian\\\" who could not provide a coherent history and tended only to mumble and grunt. The record also shows that Carter at times needed medical assistance, including a g-tube, to consume adequate calories. Finally, St. Mary readily admits Dr. Denton told it that Carter's health was poor enough that he required a pacemaker on an emergency basis. For these reasons, we conclude St. Mary had \\\"care or custody of\\\" Carter and therefore was obligated \\\" 'to exercise that degree of care that a reasonable person in a like position would exercise.' [Citation.]\\\" ( Winn , supra , 63 Cal.4th at p. 152, 202 Cal.Rptr.3d 447, 370 P.3d 1011.)\\nSt. Mary does not and cannot deny that it had at least some amount of care and custody over its own patient; rather, it asks us to make a care and custody determination as to the specific circumstances surrounding the ethics committee meeting instead of as to the relationship between Carter and St. Mary as a whole. The ethics committee meeting, in St. Mary's view, was not about the provision of medical care but instead involved only the interpretation of Stewart's power of attorney. Relying on both Winn and Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 11 Cal.Rptr.3d 222, 86 P.3d 290 ( Covenant Care ), St. Mary argues such a nonmedical or administrative act cannot be deemed custodial, and cannot constitute \\\"neglect\\\" under the Act. We now explain why neither case supports this theory.\\nIn the Winn court's words, the type of relationship the Act contemplates is \\\"a robust caretaking or custodial relationship-that is, a relationship where a certain party has assumed a significant measure of responsibility for attending to one or more of an elder's basic needs that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.\\\" ( Winn , supra , 63 Cal.4th at p. 158, 202 Cal.Rptr.3d 447, 370 P.3d 1011.) Applying this rule to the facts before it, the court found the provider of an outpatient clinic could not have committed elder abuse against one of that clinic's patients because no custodial relationship was present. ( Id. at p. 165, 202 Cal.Rptr.3d 447, 370 P.3d 1011.) The patient had received only \\\"intermittent, outpatient medical treatment,\\\" and \\\"[n]o allegations in the complaint supported an inference that [she] relied on defendants in any way distinct from an able-bodied and fully competent adult's reliance on the advice and care of his or her medical providers.\\\" ( Ibid. )\\nWe do not see how Winn supports the suggestion that \\\"when [St. Mary] interpreted [Carter's] Power of Attorney, [it was] no longer acting as care custodian[ ], but rather as [a] healthcare provider[ ] focused on the undertaking of medical services.\\\" In fact, in our view, Winn supports the opposite conclusion. Here, St. Mary accepted Carter as a patient with knowledge of his \\\"confus[ed]\\\" state, which left him a \\\"poor historian,\\\" and its records show Carter at times required assistance with feeding. Moreover, the ethics committee authorized the performance of surgery on Carter's behalf on the assumption that he lacked the ability to consent. In our view, St. Mary had accepted responsibility for assisting Carter with acts for which \\\"[o]ne would not normally expect an able-bodied and fully competent adult to depend on another.\\\" ( Winn , supra , 63 Cal.4th at p. 158, 202 Cal.Rptr.3d 447, 370 P.3d 1011.)\\nWe see no reason why the facts that the decision to allow Dr. Denton and Dr. Ashtiani to sign the consent to the pacemaker surgery in Carter's stead was made in a setting that was more like a conference room than an examination room, or that St. Mary sought advice from counsel rather than from a doctor other than Dr. Denton, must mean that the ethics committee meeting served a noncustodial function. After all, \\\"it is the defendant's relationship with an elder or a dependent adult-not the defendant's professional standing or expertise-that makes the defendant potentially liable for neglect.\\\" ( Winn , supra , 63 Cal.4th at p. 158, 202 Cal.Rptr.3d 447, 370 P.3d 1011.) For these reasons, Winn better supports the conclusion that the majority of St. Mary's interactions with decedent were custodial. St. Mary has cited no authority allowing or even encouraging a court to assess care and custody status on a task-by-task basis, and the Winn court's focus on the extent of dependence by a patient on a health-care provider rather than on the nature of the particular activities that comprised the patient-provider relationship counsels against adopting such an approach.\\nIn support of its position that the ethics committee meeting was simply an administrative task that cannot constitute neglect under the Act, St. Mary relies heavily on Covenant Care . There, the court wrote: \\\"As used in the Act, neglect refers not to the substandard performance of medical services but, rather, to the 'failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.' [Citation.] Thus, the statutory definition of 'neglect' speaks not of the undertaking of medical services, but of the failure to provide medical care.\\\" ( Covenant Care , supra , 32 Cal.4th at p. 783, 11 Cal.Rptr.3d 222, 86 P.3d 290, original italics; see Worsham v. O'Connor Hospital (2014) 226 Cal.App.4th 331, 337-338, 171 Cal.Rptr.3d 667.) St. Mary argues that conducting the ethics committee meeting amounts to the \\\"undertaking of medical services\\\" and is therefore not actionable on an elder abuse theory. Because this holding from Covenant Care occurred in the context of explaining the difference between claims under the Act and claims of \\\"simple or gross negligence by health care providers,\\\" another way of phrasing St. Mary's contention is that, even if everything Stewart alleges is true with respect to St. Mary's treatment of Carter, the most she can prove is that St. Mary committed ordinary medical malpractice. Any such suggestion is incorrect for the following reasons.\\nFirst, we are troubled that labeling this case one for no more than professional negligence seriously undervalues the interest Carter had in consenting or objecting to the surgery that, in the opinion of Stewart's experts, contributed to his death. \\\"More than a century ago, the United States Supreme Court declared, 'No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. . \\\"The right to one's person may be said to be a right of complete immunity: to be let alone.\\\" [Citation.]' [Citation.] Speaking for the New York Court of Appeals, Justice Benjamin Cardozo echoed this precept of personal autonomy in observing, 'Every human being of adult years and sound mind has a right to determine what shall be done with his own body. .' [Citation.] And over two decades ago, Justice Mosk reiterated the same principle for this court: '[A] person of adult years and in sound mind has the right, in the exercise of control over his body, to determine whether or not to submit to lawful medical treatment.' \\\" ( Thor v. Superior Court (1993) 5 Cal.4th 725, 731, 21 Cal.Rptr.2d 357, 855 P.2d 375 ( Thor ).)\\nThis right, the right to personal autonomy, is the right St. Mary denied Carter by authorizing Dr. Ashtiani and Dr. Denton to sign the consent for the pacemaker on Carter's behalf. This form was signed not only without Carter's consent, but over the objection of his designee. The California Supreme Court has described the right to consent to medical treatment as \\\" 'basic and fundamental,' \\\" \\\"intensely individual,\\\" and \\\"broadly based.\\\" ( Thor , supra , 5 Cal.4th at pp. 735-736, 741, 21 Cal.Rptr.2d 357, 855 P.2d 375.) The same court has also emphasized that excusing the patient from a judicial proceeding regarding a surgery to be performed over his objection \\\"denie[s] fundamental due process.\\\" ( Id. at p. 733, fn. 2, 21 Cal.Rptr.2d 357, 855 P.2d 375.) It is immaterial that a doctor has said the treatment is required to save the patient's life. ( Id. at p. 739, 21 Cal.Rptr.2d 357, 855 P.2d 375.) Rather, \\\" 'A doctor might well believe that an operation or form of treatment is desirable or necessary, but the law does not permit him to substitute his own judgment for that of the patient by any form of artifice or deception.' \\\" ( Id. at p. 736, 21 Cal.Rptr.2d 357, 855 P.2d 375 fn.omitted.) Finally, the patient's reasons for refusing are irrelevant. \\\"For self-determination to have any meaning, it cannot be subject to the scrutiny of anyone else's conscience or sensibilities.\\\" ( Id. at p. 741, 21 Cal.Rptr.2d 357, 855 P.2d 375.)\\nHere, it is undisputed that St. Mary authorized a surgery without the consent of either Carter or Stewart. It is also undisputed that St. Mary gave no notice of the ethics committee meeting to Carter or Stewart, and that it gave Stewart no notice that the surgery was going to occur. Even if the reasonableness of Stewart's objection were something St. Mary could have taken into account when deciding to void Stewart as Carter's designee, there are triable issues of material fact on this issue. Stewart was not an uneducated patient objecting to a procedure without explanation; instead, at the time of Carter's pacemaker surgery, she was a registered nurse, with knowledge of Carter's history, whom he had chosen repeatedly as the designee of his power of attorney, and who requested a second opinion and suggested a specific possible alternative cause for the gaps in Carter's heartbeat. Moreover, there is evidence Dr. Yelamanchili agreed that Carter's sleep apnea might have been causing the problems that concerned Dr. Denton, and Dr. Nguyen and Dr. Noori testified that the pacemaker was not medically necessary. We have difficulty concluding that the deprivation of a right as important as personal autonomy, if in fact St. Mary is found to have deprived Carter of that right, cannot amount to more than professional negligence in the context of this case.\\nIn a related contention, and relying exclusively on Cobbs v. Grant (1972) 8 Cal.3d 229, 239-240, 104 Cal.Rptr. 505, 502 P.2d 1 ( Cobbs ), St. Mary argues the most Stewart can have proved is a cause of action for failure to obtain informed consent, which is a type of negligence claim. However, the type of claim Cobbs described in sounding in simple negligence was one in which a patient consents to a procedure but later argues the consent was ill-informed due to undisclosed risks. ( Id. at pp. 239-240, 104 Cal.Rptr. 505, 502 P.2d 1.) \\\"The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented.\\\" ( Id. at p. 240, 104 Cal.Rptr. 505, 502 P.2d 1.) That standard is undeniably met here, which confirms our conclusion that Stewart has alleged and proved something more than a potential medical malpractice claim.\\nFurthermore, we find the facts Stewart has alleged and proved could support not just some formless cause of action that is something more than professional negligence, but a cause of action for elder abuse, specifically. Any of the following three theories supports this conclusion.\\nFirst, if Stewart proves to a jury that St. Mary failed to \\\"exercise that degree of care that a reasonable person in a like position would exercise\\\" with respect to Carter ( Welf. & Inst. Code, \\u00a7 15610.57, subd. (a)(1) ), she will have shown that it engaged in actions that constitute neglect under the Act. The above described evidence from Stewart creates triable issues of material fact regarding whether St. Mary appropriately respected Carter's right to personal autonomy, and we have discussed the fundamental nature of that right in detail. St. Mary has offered, and we have found, no reason why a reasonable jury could not find that St. Mary was therefore unreasonable in discharging its custodial obligations to Carter within the meaning of the Act.\\nIn addition, a reasonable jury could find St. Mary committed neglect of an elder within two of the specific categories described by statute. Neglect under the Act can include, among other things, the \\\"[f]ailure to provide medical care for physical and mental health needs\\\" ( Welf. & Inst. Code, \\u00a7 15610.57, subd. (b)(2) ) and the \\\"[f]ailure to protect from health and safety hazards\\\" (id. , subd. (b)(3)). As discussed ante , the right to personal autonomy regarding medical decisions is fundamental. ( Thor , supra , 5 Cal.4th at p. 741, 21 Cal.Rptr.2d 357, 855 P.2d 375 ; see also Conservatorship of Wendland (2001) 26 Cal.4th 519, 532, 110 Cal.Rptr.2d 412, 28 P.3d 151 [ Thor recognized fundamental right in the common law; later cases find the same right derives from the California Constitution].) It seems to us, then, that respecting the patient's right to consent or object to surgery is a necessary component of \\\"provid[ing] medical care for physical and mental health needs.\\\" ( Welf. & Inst. Code, \\u00a7 15610.57, subd. (b)(2).) Conversely, depriving a patient of the right to consent to surgery could constitute a failure to provide a necessary component of what we think of as \\\"medical care.\\\"\\nFinally, we think a reasonable jury could find St. Mary \\\"fail[ed] to protect [Carter] from health and safety hazards\\\" ( Welf. & Inst. Code, \\u00a7 15610.57, subd. (b)(3) ) by authorizing the surgery in the way it did. Dr. Pietrefesa, who has over a decade's experience as the head of a hospital ethics committee, characterized the ethics committee meeting that occurred here as a \\\"sham\\\" and stated St. Mary needed a court order to authorize a surgery over Stewart's objection. According to Dr. Pietrafesa, the requirement for a court order is a \\\"safeguard [that] is in place to protect the patient from the abuse that occurred in this case.\\\" Dr. Pietrafesa also concluded that St. Mary \\\"was required to have representation from Maxine Stewart and/or a representative from the patient present at the meeting to present all the facts pertinent to the decision to ignore the legally binding consent document executed by [Carter].\\\" St. Mary's only evidence on the ethics of the procedure it followed comes from the declaration of Ransbury, a nurse, who concluded that Dr. Ashtiani and only Dr. Ashtiani had a duty to tell Stewart about the surgery; she offered no opinion about whether St. Mary should have told Carter or Stewart that it planned to consider the validity of the power of attorney at an ethics committee meeting. There are at least triable issues of material fact regarding whether St. Mary's decision to authorize the surgery, without notice to Stewart and over her objection and request for a second opinion, failed to adequately protect Carter from health and safety hazards.\\nFor the foregoing reasons, we find Stewart has at least shown the existence of triable issues of material fact regarding whether custodial neglect within the meaning of the Act occurred when St. Mary authorized Carter's pacemaker surgery over Stewart's objection. We now turn to whether she has produced enough evidence that St. Mary \\\"has been guilty of recklessness, oppression, fraud, or malice in the commission of this\\\" neglect, so as to entitle her to the Act's enhanced remedies. ( Welf. & Inst. Code, \\u00a7 15657.) Our task is made easier by the fact that we conclude, post , that the trial court erred in summarily adjudicating the cause of action for fraudulent concealment. St. Mary offers no reason why Stewart will have failed to have proved the required state of mind should that eventuality occur. We also conclude there are triable issues of material fact regarding whether St. Mary's actions qualified as reckless. \\\"Recklessness, unlike negligence, involves more than 'inadvertence, incompetence, unskillfulness, or a failure to take precautions' but rather rises to the level of a 'conscious choice of a course of action . with knowledge of the serious danger to others involved in it.' \\\" ( Delaney v. Baker (1999) 20 Cal.4th 23, 31-32, 82 Cal.Rptr.2d 610, 971 P.2d 986 ( Delaney ).)\\nWe find uncontroversial the idea that any surgery on a 78-year-old man who has been admitted to the hospital in such a state that St. Mary looked to his designee for consent is potentially dangerous, and testimony from Dr. Noori, Dr. Nguyen, and Dr. Rajan supports Stewart's assertion that the surgery was never necessary. Also, and as discussed ante , the evidence shows there are triable issues of material fact regarding whether St. Mary adequately protected Carter from health and safety hazards when it authorized the surgery without the participation of Stewart or anyone \\\"from [Carter's] side,\\\" even though it knew Stewart had offered an alternative explanation for the gaps in Carter's heartbeat and requested a second opinion on that issue. St. Mary's suggestion that it cannot be punished for listening to the advice of a doctor in good standing at the hospital fails to account for its decision to structure the ethics committee meeting in an entirely one-sided manner. (See Covenant Care , supra , 32 Cal.4th 771, 778, 11 Cal.Rptr.3d 222, 86 P.3d 290 [elder abuse plaintiffs alleged defendants concealed the deterioration of patient's condition]; see also Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405, 129 Cal.Rptr.3d 895 [enhanced remedies warranted in Covenant Care in part because skilled nursing facility \\\"misrepresented and failed to inform [patient's] children of his true condition\\\"].)\\nFor the foregoing reasons, the trial court erred in summarily adjudicating Stewart's cause of action for elder abuse. At oral argument, St. Mary's counsel expressed concern that our holding, especially with respect to the care and custody issue, will be interpreted to mean that any act of negligence by a hospital will constitute elder abuse. We share no such fear, since \\\" ' \\\"cases are not authority for propositions not considered.\\\" ' \\\" ( Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1134, 171 Cal.Rptr.3d 189, 324 P.3d 50.) First, and as we have stressed throughout, the right to autonomy in medical decision-making is uniquely fundamental; we offer no opinion about how this petition would have resolved had Stewart alleged a violation of a lesser right. Second, we were careful to describe the evidence introduced by the parties on summary judgment in detail, to focus our inquiry on where and how Stewart's evidence created triable issues of material fact, and to stress that it is the jury's role to determine the extent of St. Mary's role in the pacemaker surgery Dr. Ashtiani performed on Carter. As we explained ante, when reviewing summary adjudication orders we \\\" 'must \\\"consider all of the evidence\\\" and \\\"all\\\" of the \\\"inferences\\\" reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.' \\\" (Intrieri , supra , 117 Cal.App.4th at p. 81, 12 Cal.Rptr.3d 97.) We have done so, and we have explained our views about how the rules on which we rely apply to the evidence submitted with the summary judgment motion. We need not make a prediction about how a court should rule in the future when asked to apply today's holding to a set of facts that is missing any of the elements that are present here.\\n2.-3.\\nDISPOSITION\\nLet a peremptory writ of mandate issue, directing the Superior Court of San Bernardino County to vacate the October 3, 2016 order granting summary adjudication of Stewart's causes of action for elder abuse, fraudulent concealment, and medical battery, and to substitute an order denying the motion as to those causes of action. The temporary stay we issued is to dissolve upon the filing of this opinion.\\nStewart is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.\\nPetitioner is awarded her costs on appeal.\\nWe concur:\\nMcKINSTER, J.\\nMILLER, J.\\nOur order directed the parties to \\\"specifically . address the applicability of Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 161, 202 Cal.Rptr.3d 447, 370 P.3d 1011 (Winn ), in light of the fact that Carter appears to have been a patient in a facility owned by real parties in interest.\\\"\\nWe omit allegations that are unnecessary to the resolution of this petition, including allegations pertaining to the wound care provided to Carter.\\nReal parties in interest are St. Mary Medical Center, St. Joseph Health System, and David O'Brien, M.D. For ease of reference, we refer to these parties collectively as \\\"St. Mary.\\\" We mean no disrespect.\\nCarter's capacity to execute the power of attorney is not at issue in this proceeding.\\nFrom 1992 to 2009, Dr. Pietrafesa served as the Executive Medical Director and Chief Medical Officer at St. John's Health Center in Santa Monica, California. In that capacity, he was \\\"responsible for the management of the ethic committee,\\\" established the hospital's bioethics service, and \\\"had consulting and direct line responsibility for the day to day operations of the activities of the hospital's bioethics function.\\\"\\nVarious doctor's notes refer to Carter's \\\"girlfriend\\\" or \\\"wife.\\\" The operative pleading refers to Stewart as Carter's \\\"partner,\\\" and one of Stewart's experts referred to her as Carter's \\\"life partner.\\\" We follow the parties' convention and infer that any references to Carter's partner, girlfriend, or wife are to Stewart.\\nSome of the testimony from Alvarez and Bunch that Stewart used in opposing the motion is identical to the testimony St. Mary used to establish the foundational facts we described ante. We now summarize only that testimony from Stewart that is new.\\nWe briefly comment on St. Mary's assertion that \\\"the sole determination [of the ethics committee meeting] was that the Power of Attorney was valid and that the Power of Attorney indicated that all life-saving measures were to be done for Carter,\\\" which we interpret to be an attempt by St. Mary to distance itself from the actual performance of the surgery. Dr. Denton and Dr. Ashtiani, however, described a closer connection between the ethics committee's decision and the surgery itself. For example, Dr. Denton testified that the result of the ethics committee meeting was that \\\"the pacemaker can be done by the person doing the procedure.\\\" Dr. Ashtiani agreed that the ethics committee gave him the \\\"green light\\\" to proceed with surgery. Finally, Dr. Ashtiani noted that \\\"risk management\\\" told him he and Dr. Denton could sign the consent form when he completed the report on Carter's pacemaker surgery. There are at least triable issues of material fact regarding the extent of St. Mary's connection to the performance of the actual surgery. For these reasons, we feel comfortable, in discussing the issues the parties raise, indicating at times that St. Mary authorized Carter's pacemaker surgery. We emphasize, however, that the extent of St. Mary's role in the actual performance of the surgery is for a jury to determine.\\nIn fact, after petitioner's counsel responded to the tentative ruling with respect to the cause of action for elder abuse at the hearing in the trial court, counsel for St. Mary stated: \\\"What counsel just finished describing was a rock-solid case for professional negligence.\\\"\\n\\\"Particularly when the restoration of normal health and vitality is impossible, only the person whose moment-to-moment existence lies in the balance can resolve the difficult and uniquely subjective questions involved. Regardless of the consequences, the courts, the medical profession, and even family and friends must accept the decision with understanding and compassion.\\\" (Thor, supra, 5 Cal.4th at p. 741, 21 Cal.Rptr.2d 357, 855 P.2d 375, fn. omitted.)\\nWhile the Act gives more specific examples of the types of acts that constitute neglect of an elder, this list is nonexhaustive. (Welf. & Inst. Code, \\u00a7 15610.57, subd. (b).) We have found little discussion of the parameters of this catchall category in the elder abuse cases we have read, but we presume the Legislature created it for a purpose. That the right to autonomy possesses the type of fundamental importance we have described makes it easier to conclude that this is a case that appropriately falls within the catchall provision.\\nStewart objected in the trial court that Ransbury lacked foundation to opine about the committee meeting, but the trial court failed to rule on her objection. Because Stewart does not argue the merits of her objections here, we do not pass on this issue.\\nSee footnote *, ante.\"}"

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+"{\"id\": \"12513912\", \"name\": \"The PEOPLE, Plaintiff and Respondent, v. Trevaun Ian FRANCIS, Defendant and Appellant.\", \"name_abbreviation\": \"People v. Francis\", \"decision_date\": \"2017-10-31\", \"docket_number\": \"B270470\", \"first_page\": \"657\", \"last_page\": \"665\", \"citations\": \"224 Cal. Rptr. 3d 657\", \"volume\": \"224\", \"reporter\": \"West's California Reporter\", \"court\": \"Court of Appeal, Fifth District, California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-27T20:59:05.719053+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"The PEOPLE, Plaintiff and Respondent,\\nv.\\nTrevaun Ian FRANCIS, Defendant and Appellant.\", \"head_matter\": \"The PEOPLE, Plaintiff and Respondent,\\nv.\\nTrevaun Ian FRANCIS, Defendant and Appellant.\\nB270470\\nCourt of Appeal, Second District, Division 3, California.\\nFiled October 31, 2017\\nRachel Varnell, Los Gatos, under appointment by the Court of Appeal, for Defendant and Appellant.\\nKathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.\", \"word_count\": \"4236\", \"char_count\": \"26231\", \"text\": \"LAVIN, J.\\nINTRODUCTION\\nThe Street Terrorism Enforcement and Prevention Act (the STEP Act) imposes an additional penalty on any defendant who commits a felony to benefit a criminal street gang. The length of the sentence enhancement depends on whether the felony is serious, violent, or non-serious and nonviolent. Defendant Trevaun Ian Francis was convicted of a serious felony with gang and gun enhancements. Thus, the gang enhancement for serious felonies applied. Under the circumstances of this case, however, the court could not impose both the gun enhancement and the serious-felony gang enhancement. ( People v. Le (2015) 61 Cal.4th 416, 189 Cal.Rptr.3d 166, 351 P.3d 295 ( Le ).) Instead of staying or striking the prohibited enhancement, the court imposed the \\\"other felonies\\\" gang enhancement.\\nWe conclude, based on the plain language of the statute, that the gang enhancement for \\\"other felonies\\\" cannot be appended to a serious or violent felony because serious and violent felonies fall within that provision's excepting clause. We therefore modify the judgment to reflect the serious-felony gang enhancement, stay the enhancement, and affirm as modified.\\nFACTUAL AND PROCEDURAL BACKGROUND\\nOn June 8, 2010, defendant, who had recently turned 18 years old, drove two fellow members of the Rollin' 30s Harlem Crips to territory claimed by the Fruit Town Brims, a Bloods gang. Defendant shot at a cyclist who appeared to belong to the rival gang.\\nBy second amended information filed January 14, 2011, defendant was charged with assault with a firearm ( Pen. Code, \\u00a7 245, subd. (a)(2) ; count 1); shooting from a motor vehicle (former \\u00a7 12034, subd. (c); count 3); and assault with a semiautomatic firearm ( \\u00a7 245, subd. (b) ; count 4). The information alleged personal firearm use (\\u00a7 12022.5, subd.(a)) and serious-felony gang enhancements (\\u00a7 186.22, subd. (b)(1)(B)) for each count. The information also alleged that defendant had been on bail in two other cases when he committed the charged crimes (\\u00a7 12022.1).\\nDefendant pled not guilty and denied the allegations. After a bifurcated trial at which he testified in his own defense, a jury found defendant guilty of counts 3 and 4 and found the conduct enhancements true. Defendant waived his right to a jury determination of the truth of the two on-bail allegations, admitted one allegation (pertaining to case no. BA369882), and denied the other allegation (case no. YJ33464).\\nAt sentencing, defendant argued-and the prosecution conceded-that the serious-felony gang enhancement that had been alleged and proven under section 186.22, subdivision (b)(1)(B), was barred by section 1170.1, subdivision (f). ( Le , supra , 61 Cal.4th at p. 425, 189 Cal.Rptr.3d 166, 351 P.3d 295.) The prosecution contended, however, that Le allowed the court to impose a gang enhancement under section 186.22, subdivision (b)(1)(A), instead. After a contested hearing, the court concluded it had the authority to enhance defendant's sentence under subdivision (b)(1)(A). The court sentenced defendant to an aggregate term of 25 years in state prison. The court selected count 4 ( \\u00a7 245, subd. (b) ) as the base term and sentenced defendant to the upper term of nine years. The court imposed the upper term of 10 years for the personal-use enhancement (\\u00a7 12022.5, subd. (a)), the upper term of four years for the gang enhancement (\\u00a7 186.22, subd. (b)(1)(A)), and two years for the on-bail enhancement (\\u00a7 12022.1), to run consecutively. The court stayed count 3 (former \\u00a7 12034, subd. (c)) and its related enhancements under section 654 and dismissed count 1 ( \\u00a7 245, subd. (a)(2) ), which was a lesser-included offense of count 4.\\nDefendant filed a timely notice of appeal.\\nDISCUSSION\\nIn People v. Rodriguez , the California Supreme Court held that under section 1170.1, subdivision (f), when a crime qualifies as a violent felony solely because the defendant personally used a firearm in the commission of that felony, the personal use can support either a firearm enhancement (\\u00a7 12022.5, subd. (a)) or a violent-felony gang enhancement (\\u00a7 186.22, subd. (b)(1)(C)), but not both. ( People v. Rodriguez (2009) 47 Cal.4th 501, 509, 98 Cal.Rptr.3d 108, 213 P.3d 647 ( Rodriguez ).) In Le , the court extended the rule to serious-felony gang enhancements (subd. (b)(1)(B)). ( Le , supra , 61 Cal.4th at pp. 425, 429, 189 Cal.Rptr.3d 166, 351 P.3d 295.)\\nIn this case, as in Le , defendant was convicted of assault with a semiautomatic firearm ( \\u00a7 245, subd. (b) ) with personal-use (\\u00a7 12022.5, subd. (a)) and gang enhancements (subd. (b)(1)). The trial court recognized that under Rodriguez and Le , it could not enhance defendant's sentence under either subdivision (b)(1)(B) or (b)(1)(C)-but concluded it could enhance the sentence under subdivision (b)(1)(A), the gang enhancement for non-serious, nonviolent felonies.\\nWhile the People insist the reasoning of Rodriguez and Le does not extend to subdivision (b)(1)(A) enhancements, this case does not require us to resolve that question. Instead, the issue turns on familiar principles of statutory interpretation and plain language. Applying those principles, we hold that because subdivision (b)(1)(A) unambiguously excludes serious and violent felonies, that enhancement may not be appended to a serious or violent felony.\\n1. Standard of Review\\nSubdivision (b)(1)(A)'s application to serious or violent felonies is an issue of \\\"statutory interpretation that we must consider de novo.\\\" ( People v. Prunty (2015) 62 Cal.4th 59, 71, 192 Cal.Rptr.3d 309, 355 P.3d 480.) As with any case involving statutory interpretation, our primary goal is to ascertain and effectuate the lawmakers' intent. ( People v. Park (2013) 56 Cal.4th 782, 796, 156 Cal.Rptr.3d 307, 299 P.3d 1263.) To determine intent, we first examine the statutory language and give the words their ordinary meaning. ( Ibid . ) \\\"If the language is unambiguous, there is no need for further construction.\\\" ( People v. Gonzales (2017) 2 Cal.5th 858, 868, 216 Cal.Rptr.3d 285, 392 P.3d 437.)\\nWe adhere to the plain language of the statute \\\"unless doing so would lead to absurd results the Legislature could not have intended.\\\" ( People v. Birkett (1999) 21 Cal.4th 226, 231, 87 Cal.Rptr.2d 205, 980 P.2d 912.) But even that exception is exceedingly narrow. We cannot \\\"ignore the actual words of the statute in an attempt to vindicate our perception of the Legislature's purpose in enacting the law.\\\" ( Murillo v. Fleetwood Enterprises, Inc . (1998) 17 Cal.4th 985, 993, 73 Cal.Rptr.2d 682, 953 P.2d 858.)\\n2. Plain Meaning\\nThe STEP Act \\\"imposes various punishments on individuals who commit gang-related crimes-including a sentencing enhancement on those who commit felonies 'for the benefit of, at the direction of, or in association with any criminal street gang.' ( Pen. Code, \\u00a7 186.22, subd. (b).)\\\" ( People v. Prunty , supra , 62 Cal.4th at p. 67, 192 Cal.Rptr.3d 309, 355 P.3d 480.) Subdivision (b) provides that any such defendant:\\n(b)(1) [e]xcept as provided in paragraphs (4) and (5), . shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows :\\n(A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the court's discretion.\\n(B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years.\\n(C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years.\\n(Emphasis added.) Paragraphs (4) and (5) provide that a defendant convicted of certain serious or violent felonies \\\"shall\\\" receive an indeterminate life term with a specified minimum parole eligibility date. (Subds. (b)(4), (b)(5).)\\nThis series of interlocking provisions is the mechanism by which subdivision (b) attaches specific penalties to specific types of crimes-two, three, or four years for a basic felony (subd. (b)(1)(A)); five years for a serious felony (subd. (b)(1)(B)); 10 years for a violent felony (subd. (b)(1)(C)); and a life sentence with a specified minimum parole term for enumerated serious or violent felonies (subds. (b)(4), (b)(5)). Each penalty is mandatory. ( Le , supra , 61 Cal.4th at p. 423, 189 Cal.Rptr.3d 166, 351 P.3d 295 [subdivision (b)(1) enhancements \\\"are mandatory-all three provisions specify that the additional punishment 'shall' be imposed.\\\"].) The penalty applicable to a given felony is not a matter of prosecutorial charging discretion or a sentencing choice available to the trial court. In this way, subdivision (b) establishes mutually exclusive \\\"methods for punishing felons whose crimes were committed for the benefit of a criminal street gang.\\\" ( People v. Lopez (2005) 34 Cal.4th 1002, 1004, 22 Cal.Rptr.3d 869, 103 P.3d 270 ( Lopez ).)\\nThe statutory language is clear and unambiguous. Accordingly, it requires no interpretation or construction. Subdivision (b)(1) applies to every gang crime except those designated in subdivisions (b)(4) and (b)(5). Subdivision (b)(1)(A) applies to all remaining eligible felonies \\\"[e]xcept as provided in subparagraphs (B) and (C).\\\" Subdivision (b)(1)(B) provides that \\\"a serious felony . shall be punished by an additional term of five years.\\\" Subdivision (b)(1)(C), in turn, provides that \\\"a violent felony . shall be punished by an additional term of 10 years.\\\" While there is discretion embedded within subdivision (b)(1)(A) for felonies falling within that provision, a trial court has no discretion to impose a term under subdivision (b)(1)(A) for a felony that falls under (B) or (C). Here, defendant was convicted of a serious felony. As such, the STEP Act required the court to impose a gang enhancement under subdivision (b)(1)(B)-regardless of whether section 1170.1, subdivision (f), would ultimately limit it. The Act did not authorize the court to impose an enhancement under subdivision (b)(1)(A).\\nIn general, a court exceeds its jurisdiction when it imposes an unauthorized or legally impossible sentence. ( People v. Scott (1994) 9 Cal.4th 331, 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040 [a sentence is unauthorized if \\\"it could not lawfully be imposed under any circumstance in the particular case.\\\"]; see People v. Soriano (1992) 4 Cal.App.4th 781, 784-785, 6 Cal.Rptr.2d 138 [court lacked jurisdiction to sentence defendant for attempting to file a forged instrument where the forgery (a death certificate) was not an instrument].) Here, the People acknowledge that subdivision (b)(1)(A) applies only to non-serious, nonviolent felonies. And they concede that defendant was convicted of a serious felony. Yet they have offered no legal theory under which a court may disregard the statute's plain language-language that explicitly exempts serious, violent crimes from (b)(1)(A)-and impose an enhancement where none is authorized. Nor have the People offered a legal theory under which the court may convert a serious, violent felony into a non-serious, nonviolent one.\\n\\\"Following the plain language of section 186.22, subdivision (b)(1) does not produce an absurd result; the most that can be said is that it will not increase the defendant's actual custody time in all cases where a gang allegation is found true.\\\" ( People v. Johnson (2003) 109 Cal.App.4th 1230, 1238, 135 Cal.Rptr.2d 848.) As noted above, subdivision (b)(1)(B) provides that when a gang allegation has been found true, a defendant convicted of a serious felony must serve \\\"an additional term of five years.\\\" In many cases, the application of that enhancement will increase the time a defendant actually spends in custody. In other cases-such as when the court has already imposed 10 additional years for a firearm enhancement-it will not necessarily do so.\\nThis is not an unreasonable result. The Legislature knows how to draft statutory exceptions. Indeed, the firearm enhancement imposed in this case is itself rooted in an exception to the general rule barring such enhancements. ( Le , supra , 61 Cal.4th at p. 420, fn. 3, 189 Cal.Rptr.3d 166, 351 P.3d 295 [\\\"Generally, a defendant is exempt from a section 12022.5 enhancement if the 'use of a firearm is an element of' the charged offense. (\\u00a7 12022.5, subd. (a).) But section 12022.5 contains an exception if a defendant commits a section 245 violation using a firearm. (\\u00a7 12022.5, subd. (d).)\\\"].) That exception, in turn, is circumscribed by section 1170.1's prohibition on multiple firearm enhancements-and both provisions are consistent with section 12022.53.\\nSection 12022.53 subjects \\\"offenders who personally used . a firearm in committing a gang-related offense\\\" to both a personal-use enhancement and a gang enhancement-but that statute only applies to specifically-enumerated serious and violent felonies. ( People v. Brookfield (2009) 47 Cal.4th 583, 593-594, 98 Cal.Rptr.3d 535, 213 P.3d 988.) Section 245 is not among them. (\\u00a7 12022.53, subd. (a).) If the Legislature wishes to reconsider the limits of any of these provisions, it may do so. ( People v. Harper (2003) 109 Cal.App.4th 520, 524, 135 Cal.Rptr.2d 120 [\\\" 'Courts may not rewrite statutes to supply omitted terms or to conform to an assumed, unexpressed, legislative intent. [Citation.] It is, of course, up to the Legislature, and not the courts, to rewrite statutes.' [Citations.]\\\"].) Until it does, however, it is not absurd for the courts to apply subdivision (b)(1)(A) as written.\\n3. Statutory Consistency\\nPrinciples of statutory consistency and stare decisis also require us to follow the plain language of subdivision (b)(1)(A). (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) Although we look first at the words of a statute, we do not consider the statutory language in isolation; rather, we read the statute \\\"as a whole, harmonizing the various elements by considering each clause and section in the context of the overall statutory framework.\\\" ( People v. Jenkins (1995) 10 Cal.4th 234, 246, 40 Cal.Rptr.2d 903, 893 P.2d 1224.) We construe all parts of a statute together, without according undue importance to a single or isolated portion. ( Cooley v. Superior Court (2002) 29 Cal.4th 228, 127 Cal.Rptr.2d 177, 57 P.3d 654.) Thus, a \\\" 'word or phrase will be given the same meaning each time it appears in a statute.' \\\" ( Id . at p. 255, 127 Cal.Rptr.2d 177, 57 P.3d 654.) \\\"Significance should be given, if possible, to every word of an act.\\\" ( Delaney v. Superior Court (1990) 50 Cal.3d 785, 798, 268 Cal.Rptr. 753, 789 P.2d 934.) \\\"Conversely, a construction that renders a word surplusage should be avoided.\\\" ( Id . at p. 799, 268 Cal.Rptr. 753, 789 P.2d 934.)\\nAs we have discussed, subdivision (b) contains a series of interlocking provisions. The excepting clause in subdivision (b)(1)(A) mirrors the excepting clause in subdivision (b)(1). (Compare subd. (b)(1) [enhancement applies \\\"[e]xcept as provided in paragraphs (4) and (5)\\\"] with subd. (b)(1)(A) [subparagraph applies \\\"[e]xcept as provided in subparagraphs (B) and (C)\\\"].)\\nAnd our interpretation of subdivision (b)(1)(A) is consistent with the California Supreme Court's interpretation of the parallel language in subdivision (b)(1). ( Lopez , supra , 34 Cal.4th 1002, 22 Cal.Rptr.3d 869, 103 P.3d 270.)\\nIn Lopez , the court addressed whether a gang-related first-degree murder could be enhanced by 10 years as a violent felony under subdivision (b)(1)(C), \\\"or whether such a murder falls within that subdivision's excepting clause and is governed instead by the 15-year minimum parole eligibility term\\\" of subdivision (b)(5). ( Lopez , supra , 34 Cal.4th at p. 1006, 22 Cal.Rptr.3d 869, 103 P.3d 270.) Because a 15-year minimum eligible parole date would have little practical effect on a defendant who, because of the murder conviction, was already parole-ineligible for 25 years (\\u00a7 190, subd. (a)), the government was understandably interested in applying the 10-year subdivision (b)(1)(C) enhancement instead.\\n( Lopez , at pp. 1008-1009, 22 Cal.Rptr.3d 869, 103 P.3d 270.) The defendant in Lopez argued \\\"that the statutory language is plain and its meaning unmistakable.\\\" ( Id. at p. 1006, 22 Cal.Rptr.3d 869, 103 P.3d 270.) He explained that subdivision (b)(1) authorizes additional punishment \\\" '[e]xcept as provided in paragraphs (4) and (5) .' \\\" Paragraph (5) applies when the felony is \\\"punishable by imprisonment in the state prison for life.\\\" (Subd. (b)(5).) \\\"[F]irst degree murder, which is punishable by 'imprisonment in the state prison for a term of 25 years to life' (\\u00a7 190, subd. (a)), is such an offense.\\\" ( Lopez , at p. 1006, 22 Cal.Rptr.3d 869, 103 P.3d 270.)\\nA unanimous court agreed. The court held, based on the plain language of section 186.22, that where a gang-related felony falls within subdivision (b)(5)'s alternative penalty provision, the trial court must sentence the defendant under subdivision (b)(5). It cannot impose a (b)(1)(C) enhancement instead. Thus, the excepting clause in subdivision (b)(1) barred the trial court from imposing a gang enhancement-specifically (b)(1)(C)-to maximize the defendant's overall sentence. ( Lopez , supra , 34 Cal.4th at pp. 1004, 1006, 22 Cal.Rptr.3d 869, 103 P.3d 270 ; accord, People v. Johnson , supra , 109 Cal.App.4th at pp. 1236-1238, 135 Cal.Rptr.2d 848 ; People v. Harper , supra , 109 Cal.App.4th at p. 525, 135 Cal.Rptr.2d 120 ; People v. Ortiz (1997) 57 Cal.App.4th 480, 485-486, 67 Cal.Rptr.2d 126.)\\nSince Lopez construed subdivision (b)(1) in 2005, the Legislature has amended the STEP Act several times. It has never changed the excepting clause in subdivision (b)(1). \\\"When as here ' \\\"a statute has been construed by judicial decision, and that construction is not altered by subsequent legislation, it must be presumed that the Legislature is aware of the judicial construction and approves of it.\\\" [Citations.] \\\"There is a strong presumption that when the Legislature reenacts a statute which has been judicially construed it adopts the construction placed on the statute by the courts.\\\" ' [Citation.]\\\" ( People v. Meloney , supra , 30 Cal.4th at p. 1161, 135 Cal.Rptr.2d 602, 70 P.3d 1023.)\\n4. Remedy\\n4.1. We may modify the judgment on appeal.\\nThe typical remedy under Rodriguez is to reverse and remand for resentencing. ( Rodriguez , supra , 47 Cal.4th at p. 509, 98 Cal.Rptr.3d 108, 213 P.3d 647.) In Rodriguez , however, the trial court had imposed the middle term for the three underlying felonies. Resentencing, therefore, provided the court with \\\"the opportunity . to restructure its sentence by imposing the upper terms for the base felonies, if it was inclined to compensate for the loss of one of the enhancements.\\\" ( Le , supra , 61 Cal.4th at p. 428, 189 Cal.Rptr.3d 166, 351 P.3d 295.) In this case, by contrast, the trial court imposed the maximum possible sentence. As there are no sentencing choices to restructure, it is appropriate for us to modify the sentence on appeal. (\\u00a7 1260 [appellate court's power to modify judgments]; People v. Rogers (2009) 46 Cal.4th 1136, 1174, 95 Cal.Rptr.3d 652, 209 P.3d 977.)\\nWe therefore modify the judgment as follows. The gang enhancement imposed on count 4 under section 186.22, subdivision (b)(1)(A), is modified to an enhancement for subdivision (b)(1)(B). The subdivision (b)(1)(B) enhancement is stayed.\\n4.2. The abstract of judgment in case BA369882 must be amended to reflect the modified sentence.\\nUnder California Rules of Court, rule 4.452, when \\\"a determinate sentence is imposed under section 1170.1(a) consecutive to one or more determinate sentences imposed previously in the same court or in other courts, the court in the current case must pronounce a single aggregate term, as defined in section 1170.1(a), stating the result of combining the previous and current sentences.\\\" Though the abstract of judgment in case no. BA369882 complies with that rule, it must be amended to reflect the modified judgment in this case.\\nAs discussed above, on February 17, 2016, defendant was sentenced in the current case (no. BA372403) to an aggregate term of 25 years in state prison. On May 1, 2017, defendant pled no contest in case no. BA369882. On May 4, 2017, he was sentenced in that case to an aggregate term of 11 years in state prison, to run consecutively to the sentence in this case. The court imposed concurrent sentences for the remaining counts and enhancements.\\nThe abstract of judgment in case no. BA369882 properly includes the sentence imposed in the current case (no. BA372403), which it designates as count 4N. Upon issuance of remittitur, the incomplete sentence for count 4N and the total time imposed on that abstract of judgment must be updated to reflect defendant's modified sentence.\\nDISPOSITION\\nThe judgment is modified as follows. The gang enhancement imposed on count 4 under Penal Code section 186.22, subdivision (b)(1)(A), is modified to an enhancement for subdivision (b)(1)(B). The subdivision (b)(1)(B) enhancement is stayed. As modified, the judgment is affirmed.\\nUpon issuance of our remittitur, the trial court is directed to prepare corrected minute orders consistent with the views expressed in this opinion, amend the abstract of judgment in this case and the abstract of judgment in case no. BA369882 to reflect the judgment as modified, and to send certified copies of the amended abstracts of judgment to the Department of Corrections and Rehabilitation. The clerk of this court is directed to send a copy of the opinion and remittitur to the Department of Corrections and Rehabilitation. ( Cal. Rules of Court, rule 8.272(d)(2).)\\nWE CONCUR:\\nEDMON, P. J.\\nDHANIDINA, J.\\nIn some court documents, defendant is referred to as Trevaun Renald Francis.\\nAll undesignated statutory references are to the Penal Code.\\nEffective January 1, 2012, former section 12034 (count 3) was recodified without substantive change at section 26100. (Stats. 2010, ch. 711, \\u00a7 4 [repealed]; Stats. 2010, ch. 711, \\u00a7 6 [reenacted].)\\nCount 2 only applied to co-defendant Jean Palacios, who is not a party to this appeal.\\nAlthough the on-bail allegation pertaining to case no. YJ33464 was neither found true nor imposed by the court, the minute orders do not reflect that it was dismissed. Upon issuance of our remittitur, the trial should correct the minute orders to reflect dismissal of this allegation.\\nOn our own motion, we take judicial notice of two court records in superior court case no. BA369882-the abstract of judgment filed on May 15, 2017, and the minute order of May 4, 2017. (Evid. Code, \\u00a7 452, subd. (d)(1), 459, subd. (a).) In light of defendant's subsequent no-contest plea in case no. BA369882, the court's failure to stay execution of the on-bail enhancement in this case was harmless. (\\u00a7 12022.1, subd. (d) [on-bail enhancement requires conviction of both original and new offenses]; People v. Meloney (2003) 30 Cal.4th 1145, 1162-1163, 135 Cal.Rptr.2d 602, 70 P.3d 1023 [where the enhancement case is tried before the bail case, court must stay enhancement pending conviction in original case].)\\nAll undesignated subdivision references are to section 186.22.\\nDefendant's conviction for assault with a semiautomatic firearm (\\u00a7 245, subd. (b) ) qualified as a serious felony under section 1192.7, subdivisions (c)(8), (c)(23), and (c)(31). The jury found the subdivision (b)(1)(B) allegation true.\\nInstead, the People observe that unlike a (b)(1)(B) enhancement, the (b)(1)(A) enhancement was not predicated on personal firearm use, and as such, did not violate the multiple-enhancement prohibition of section 1170.1, subdivision (f)-the provision at issue in Rodriguez and Le. We offer no opinion of that question. Plainly, it is not enough for section 1170.1 to allow the enhancement; the enhancement itself must also apply.\\nThe minimum eligible parole date (MEPD) is the earliest date on which a life prisoner may legally be released on parole. (\\u00a7 3046; Cal. Code Regs., tit. 15, \\u00a7 2000, subd. (b)(67).) An inmate is entitled to a parole suitability hearing one year before his MEPD. (\\u00a7 3041, subd. (a)(2).) While a subdivision (b)(5) enhancement could be a factor tending to show a defendant is unsuitable for parole (Cal. Code Regs., tit. 15, \\u00a7 2402 ; People v. Johnson, supra, 109 Cal.App.4th at p. 1238, 135 Cal.Rptr.2d 848 ), a subdivision (b)(1)(C) enhancement would postpone the inmate's suitability hearing for 10 more years. (\\u00a7 669, subd. (a) [term for consecutive, determinate enhancement served first and not credited toward indeterminate MEPD].) That is, subdivision (b)(1)(C) would increase the defendant's sentence to 35 years to life; subdivision (b)(5) would not.\\nWe note that the abstract of judgment in case no. BA369882 contains a clerical error for count 5. According to the minute order of May 4, 2017, the court imposed four years for count 5-the mid-term of two years plus two years for the on-bail enhancement, to run concurrently to the rest of the sentence. The abstract erroneously indicates that the court imposed six years for count 5-the mid-term of four years plus two years for the on-bail enhancement. (People v. Mitchell (2001) 26 Cal.4th 181, 185, 109 Cal.Rptr.2d 303, 26 P.3d 1040 [\\\"An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize.\\\"].)\\nJudge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.\"}"

cal/12515755.json

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+"{\"id\": \"12515755\", \"name\": \"IN RE J.P., a Person Coming Under the Juvenile Court Law. Santa Clara County Department of Family and Children's Services, Plaintiff and Respondent, v. M.D., Defendant and Appellant.\", \"name_abbreviation\": \"Santa Clara Cnty. Dep't of Family v. M.D. (In re J.P.)\", \"decision_date\": \"2019-07-26\", \"docket_number\": \"H046491\", \"first_page\": \"916\", \"last_page\": \"926\", \"citations\": \"249 Cal. Rptr. 3d 916\", \"volume\": \"249\", \"reporter\": \"West's California Reporter\", \"court\": \"Court of Appeal, Fifth District, California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-09-08T21:16:17.237805+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"IN RE J.P., a Person Coming Under the Juvenile Court Law.\", \"head_matter\": \"IN RE J.P., a Person Coming Under the Juvenile Court Law.\\nSanta Clara County Department of Family and Children's Services, Plaintiff and Respondent,\\nv.\\nM.D., Defendant and Appellant.\\nH046491\\nCourt of Appeal, Sixth District, California.\\nFiled July 26, 2019\\nJames R. Williams, County Counsel, Hilary T. Kerrigan, Deputy County Counsel, Counsel for Plaintiff/Respondent: Santa Clara County Department of Family and Children's Services.\\nNo appearance, Counsel for Minor: J.P.\\nUnder Appointment of the Court of Appeal, Leslie A. Barry, Michelle Jarvis, Counsel for Defendant/Appellant: M.D.\", \"word_count\": \"4612\", \"char_count\": \"28959\", \"text\": \"Premo, J.\\nM.D. (mother) appeals from the juvenile court's order granting her ex-boyfriend (Albert) visitation with her son, J.P. Mother argues that the juvenile court did not have the authority to order visitation with nonparents like Albert, and, even if such an order was permitted, the circumstances did not warrant granting Albert visitation with J.P. We disagree and conclude that the juvenile court did not abuse its discretion when it made the visitation order after determining that it would be in J.P.'s best interest. We affirm.\\nBACKGROUND\\nOn July 14, 2017, the Santa Clara County Department of Family and Children's Services (Department) filed a petition under Welfare and Institutions Code section 300, subdivision (b)(1) alleging that J.P. (born 2013) came under the juvenile court's jurisdiction. The petition alleged that mother had been arrested for driving under the influence. J.P. and his younger half-brother, A.A., were taken into protective custody.\\nAlbert's stepmother said that Albert, mother, J.P., and A.A. lived with her from September or October 2016 through February or March 2017. Albert told the social worker that he was not J.P.'s biological father but wanted to legally adopt him. Albert was A.A.'s biological father. J.P.'s biological father, L.P., was not involved in J.P.'s life, but he was ordered to pay child support for J.P.\\nAt the initial hearing on the dependency petition, the juvenile court found Albert to be A.A.'s presumed father and found L.P. to be J.P.'s presumed father. The juvenile court further found that a prima facie showing had been made that both children came within its jurisdiction and ordered them removed from mother and Albert's custody.\\nDuring interviews, Albert indicated to the Department that he wanted to be designated as J.P.'s presumed parent. Mother and Albert had separated during the dependency proceedings and did not intend to resume their relationship. Albert said that J.P. called him \\\"dad,\\\" and he referred to J.P. as his son even though he was not J.P.'s biological father. Mother claimed that Albert had problems with alcohol, smoked heavily, and scared the children when he got into loud arguments. The Department determined that mother had a \\\"long-standing alcohol issue\\\" and Albert was \\\"well-intentioned\\\" but had a difficult time maintaining boundaries with mother to keep the children safe. The Department further determined that Albert had prior instances where he drank excessively.\\nBefore the jurisdictional hearing, mother alleged that Albert had committed domestic violence against her. Albert denied the allegations of abuse but conceded that he got into verbal altercations with mother. Mother had requested a restraining order against Albert, and a temporary restraining order was in effect at the time the Department prepared its addendum to the jurisdictional report. Police had responded several times to reports of disturbances between mother and Albert.\\nOn August 23, 2017, the juvenile court held a jurisdictional hearing and found the allegations in the dependency petition to be true. The court held a dispositional hearing several weeks later and declared both J.P. and A.A. to be dependents of the court. Services were ordered for mother and Albert. For J.P., the juvenile court ordered supervised visits with mother and L.P. For A.A., the juvenile court ordered supervised visits with mother and Albert.\\nIn November 2017, J.P. and A.A. were moved from their foster home placement to their paternal grandparents' (Albert's parents') home. L.P. had not made his whereabouts known to the Department, and he had not had any visits with J.P.\\nIn preparation for the six-month review, the Department prepared a status review report that recommended J.P. be returned to mother's care under a plan of family maintenance and services for L.P. be terminated. The Department also recommended A.A. be returned to both mother and Albert and family maintenance be offered for mother and Albert's separate households. According to the report, the domestic violence case initiated by mother against Albert had been dismissed. Both parents had been consistent with visiting both children, and the Department believed the quality of visits was good. The children \\\"show[ed] comfort\\\" in Albert's presence, and Albert appeared to be hands-on with the children when they were with him. Albert ensured that the children were fed, took them to local parks, and appeared to provide for their basic needs such as clothing and food. On March 27, 2018, the juvenile court adopted the Department's recommendations at the six-month review hearing.\\nOn September 24, 2018, the Department filed a status review report. The report recommended that the juvenile court continue to offer family maintenance services to mother and Albert. During the review period, seven referrals of child abuse had been made concerning J.P. and A.A. The Department found most of the referrals to be unfounded and the remaining referrals to be inconclusive. J.P. had previously visited Albert with A.A., but he had not visited Albert for several months pursuant to mother's request. Albert did not have court-ordered visits with J.P.\\nAlso on September 24, 2018, Albert asked the juvenile court to recognize him as J.P.'s presumed father. Subsequently, the court held a contested hearing on Albert's request.\\nDuring the presumed parenthood hearing, Albert testified about his relationship with J.P. Albert said that he met J.P. when the child was approximately three years old, sometime in 2016. Albert lived with mother and J.P. for approximately one and a half to two years. During that time, Albert developed a close relationship with J.P. Albert spent weekends with J.P. and mother, and Albert provided financial support for them, with the majority of the money that Albert earned going toward paying the family's bills. J.P. used to call Albert \\\"daddy.\\\" In a recent encounter, Albert saw J.P. and tried to hug him, but mother pulled J.P. away from Albert and told J.P., \\\" 'That's not your father, that's just [Albert].' \\\" Albert referred to J.P. as his son and openly told others that he considered J.P. to be his son. Albert said that he was willing to financially provide for J.P.\\nMother also testified at the hearing and disputed Albert's testimony. Mother said that Albert lived \\\"off and on\\\" with her and the children, and he would come and go as he pleased. He sometimes stayed overnight but would start arguments and would leave after getting drunk. Mother said that Albert did not provide financial support to A.A. or to mother after A.A. was born. According to mother, Albert did not spend one-on-one time with J.P. Mother conceded that Albert paid some of her rent for several months after A.A. was born. Mother, however, claimed that she later gave Albert money to pay rent, but he took the money and did not pay rent, forcing mother to be evicted from her apartment. According to mother, J.P. never asked for Albert. Mother also said that J.P. told him that Albert \\\"kissed\\\" him during a prior overnight visit, which left a mark behind J.P.'s ear.\\nOn October 25, 2018, the juvenile court determined that Albert did not qualify as J.P.'s presumed father under Family Code section 7611, subdivision (d). The juvenile court observed that Albert did not seek presumed parenthood status for more than a year after the dependency proceedings began, he was not J.P.'s primary caregiver, and he did not take consistent financial responsibility for J.P. The juvenile court, however, noted that this case was \\\"a little bit of a close call\\\" and stated that there was \\\"no doubt\\\" that there was a bond between Albert and J.P. The juvenile court further observed that even if Albert qualified as a presumed parent under Family Code section 7611, subdivision (d), he would not qualify as a third parent (L.P. was J.P.'s presumed father) under Family Code section 7612, subdivision (c). Under Family Code section 7612, subdivision (c), a juvenile court may find that a child has a third parent if \\\"recognizing only two parents would be detrimental to the child.\\\" The juvenile court explained that there was insufficient evidence of detriment to J.P. under Family Code section 7612, subdivision (c), but acknowledged that its decision did not imply that J.P. did not suffer from \\\"some detrimental [e]ffect\\\" due to his separation from Albert.\\nAfter the juvenile court made its presumed parenthood determination, Albert requested regular visitation with J.P. Mother opposed the visitation request, arguing that J.P. was doing \\\"quite well\\\" without seeing Albert. She also did not believe that the sibling bond between J.P. and A.A. suffered from J.P. not visiting with Albert. Mother also claimed that J.P. already had other \\\"strong, male figures\\\" in his life aside from Albert. J.P.'s attorney expressed conflicting feelings about visitation between Albert and J.P. J.P.'s attorney stated that she believed visitation would be in J.P.'s best interest in the short term, but if visits were to cease, J.P. would suffer from losing Albert from his life. The Department argued in favor of visitation between Albert and J.P., noting that J.P. and A.A. used to visit Albert together, and J.P. had a bond with Albert. The Department argued that it was not necessarily asking for an additional visit but was requesting that the trial court order that if A.A. went to visit Albert, J.P. could also come along.\\nAfter considering these arguments, the juvenile court determined that there was a bond between J.P. and Albert, and the relationship was good. The juvenile court also concluded that it would be in J.P.'s best interest to maintain his relationship with Albert. After concluding that visitation would be in J.P.'s best interest, the juvenile court ordered weekly visitation between J.P. and Albert, which the juvenile court clarified could occur when A.A. visited Albert.\\nDISCUSSION\\nMother argues that the juvenile court abused its discretion by ordering visitation between Albert and J.P. over her objection. Mother claims that the visitation order was unauthorized because Albert was not a presumed parent, de facto parent, or a nonrelative extended family member (NREFM) seeking to be considered as a placement option for J.P. Alternatively, mother argues that even if the juvenile court was permitted to order visitation between a child and a nonparent like Albert, visitation in this case was inappropriate under the circumstances and constituted an abuse of discretion.\\n1. Authority to Order Visitation Between Child and Nonparent\\nFirst, we find no merit in mother's claim that the juvenile court lacked the authority to order visitation between Albert and J.P. Mother argues that there is no express statutory authority for this type of visitation order, as Albert is not J.P.'s parent. Although we agree with mother that there are no statutes that directly authorize the juvenile court to make such orders, the visitation order made in this case was within the juvenile court's power.\\nSpecifically, the visitation order in this case falls within the scope of section 362, subdivision (a), which grants the juvenile court considerably broad authority to \\\"make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the [dependent] child, including medical treatment, subject to further order of the court.\\\" Section 362, subdivision (d) also provides that \\\"[t]he juvenile court may direct any reasonable orders to the parents or guardians of the child who is the subject of any proceedings under this chapter as the court deems necessary and proper to carry out this section .\\\"\\nBoth mother and the Department agree that there are only two statutes that expressly discuss visitation orders made during ongoing dependency proceedings. First, the juvenile court must order visitation with parents and siblings subject to certain exceptions if the child is placed in foster care. (\\u00a7 362.1, subd. (a)(1)(A), (a)(2).) Second, the juvenile court must consider ordering visitation with grandparents if the child is removed from the parents' physical custody if \\\"the best interest of the child\\\" will be served by doing so. (\\u00a7 361.2, subd. (i).) However, simply because the statutory scheme requires the juvenile court to order visitation with parents and siblings in certain circumstances unless applicable exceptions apply and requires the juvenile court to consider grandparent visitation does not mean that ordering visitation with other interested individuals is not permitted. Albert may not have the statutory right to visitation, but there is nothing precluding the juvenile court from ordering visitation if it is reasonably related to J.P.'s care and is in his best interest. (See In re Hirenia C. (1993) 18 Cal.App.4th 504, 510, 22 Cal.Rptr.2d 443 ( Hirenia C. ) [a person whose relationship with child did not rise to level of de facto parenthood has standing to bring petition requesting visitation rights with child if facts establish that the person has \\\" 'an interest' \\\" in child as defined under \\u00a7 388].)\\nConstruing the statutes as barring juvenile courts from ordering visitation to other family members or interested individuals not expressly included in the statutory scheme, which includes de facto parents, other relatives, and NREFMs, would produce absurd results that are inconsistent with existing precedent. For example, courts have upheld visitation rights extended to de facto parents. (See In re Robin N. (1992) 7 Cal.App.4th 1140, 9 Cal.Rptr.2d 512 [upholding juvenile court's grant of continuing visitation rights to de facto parent].) And, since courts may consider placing children with other relatives or NREFMs, it would be illogical to prohibit the juvenile court from ordering visitation with relatives or NREFMs. (See \\u00a7 361.3 [placement of child with relative], 362.7 [defining NREFM and discussing evaluation of a NREFM's home for placement].)\\nPermitting the juvenile court to order visitation with nonparents if such visitation is in the child's best interest also promotes the overarching purpose of the dependency system, which is to \\\" ' \\\" 'maximize a child's opportunity to develop into a stable, well-adjusted adult.' \\\" ' \\\" ( In re Joshua A. (2015) 239 Cal.App.4th 208, 218, 190 Cal.Rptr.3d 655.) \\\"The best interest of the child is the fundamental goal of the juvenile dependency system .\\\" ( In re William B. (2008) 163 Cal.App.4th 1220, 1227, 78 Cal.Rptr.3d 91.) The juvenile court has the special responsibility to consider the totality of a child's circumstances, \\\"including the maintenance of relationships with other adults with whom [the child has] a strong bond.\\\" ( In re J. T. (2014) 228 Cal.App.4th 953, 964, 175 Cal.Rptr.3d 744 ( J. T. ).) If the evidence presented to the juvenile court establishes that it is in the child's best interest to facilitate visitation, such an order may be permissible.\\n2. Discretion to Order Visitation Between Albert and J. P.\\nNext, we examine whether the juvenile court's visitation order was properly made under the circumstances of the case. Visitation orders in dependency cases are typically reviewed for abuse of discretion and will not be reversed absent a \\\"clear showing of abuse of discretion.\\\" ( In re Alexandria M. (2007) 156 Cal.App.4th 1088, 1095, 68 Cal.Rptr.3d 10.)\\nMother argues the juvenile court abused its discretion, because there was no evidence that the factors permitting visitation identified by the court in Hirenia C. , supra , 18 Cal.App.4th 504, 22 Cal.Rptr.2d 443 were present in this case. In Hirenia C. , a de facto parent sought visitation with a child following the termination of the dependency. ( Id. at pp. 510-512, 517, 22 Cal.Rptr.2d 443.) The appellate court concluded that the juvenile court was authorized to order visitation in favor of a de facto parent under section 362.4 over the adoptive parent's objection despite the \\\"large measure of deference to parental autonomy when considering a contested issue of visitation rights for a nonparent.\\\" ( Hirenia C. , supra , at p. 519, 22 Cal.Rptr.2d 443.)\\nCiting Hirenia C. , mother argues that the Hirenia C. court set forth specific circumstances where a visitation order with a nonparent would be appropriate, such as where a person has \\\" '(1) lived with the child for a substantial portion of the child's life; (2) been regularly involved in providing day-to-day care, nurturance and guidance for the child appropriate to the child's stage of development; and (3) been permitted by a biologic [or adoptive] parent to assume a parental role.' \\\" ( Hirenia C. , supra , 18 Cal.App.4th at p. 519, 22 Cal.Rptr.2d 443, quoting In re Marriage of Gayden (1991) 229 Cal.App.3d 1510, 1521-1522, 280 Cal.Rptr. 862 ( Gayden ).) Mother's strict reliance on these factors misinterprets Hirenia C. Although the Hirenia C. court cited to these factors in its decision, it did not imply that these factors were the only ones that should be considered by the juvenile court when issuing visitation orders to nonparents in dependency proceedings. Nor did it imply that in the absence of these factors, the juvenile court abuses its discretion by ordering visitation.\\nThe Hirenia C. court referenced these three factors when it analyzed whether parents have the \\\"unfettered right\\\" to determine who can visit with their child. ( Hirenia C. , supra , 18 Cal.App.4th at p. 519, 22 Cal.Rptr.2d 443.) The Hirenia C. court noted that it had, in the past, held that \\\"courts must give a large measure of deference to parental autonomy when considering a contested issue of visitation rights for a nonparent\\\" ( ibid. ), citing to its decision in Gayden , supra , 229 Cal.App.3d 1510, 280 Cal.Rptr. 862 and listing the three factors relied upon by mother here. The Hirenia C. court, however, observed that its decision in Gayden was careful to limit its holding with the observation that \\\"courts are not required to submit in every case to the objection of a biologic or adoptive parent to a visitation award to another person with whom the minor has developed a close attachment.\\\" ( Hirenia C. , supra , at p. 519, 22 Cal.Rptr.2d 443, citing Gayden , supra , at p. 1521, 280 Cal.Rptr. 862.)\\nGayden was a family law case. ( Gayden , supra , 229 Cal.App.3d 1510, 280 Cal.Rptr. 862.) And in Hirenia C. , an adoption had been finalized and it was the adoptive parent who objected to the juvenile court making a visitation order to the nonparent. ( Hirenia C. , supra , 18 Cal.App.4th at p. 517, 22 Cal.Rptr.2d 443.) The adoptive parent in Hirenia C. was not an offending parent; she took the child into her care after the child was placed in her foster care home. ( Id. at p. 510, 22 Cal.Rptr.2d 443.) Both parents in Gayden and the adoptive parent in Hirenia C. were not unfit and were entitled to a presumption that they acted in their child's best interest. ( J. T. , supra , 228 Cal.App.4th at p. 964, 175 Cal.Rptr.3d 744 [fit parent entitled to presumption that he or she is acting in child's best interest]; Troxel v. Granville (2000) 530 U.S. 57, 68, 120 S.Ct. 2054, 147 L.Ed.2d 49 ( Troxel ) [\\\"there is a presumption that fit parents act in the best interests of their children\\\"].)\\nIn contrast, mother does not have the benefit of a presumption of parental fitness. ( J. T. , supra , 228 Cal.App.4th at p. 963, 175 Cal.Rptr.3d 744 [mother that was before dependency court did not have benefit of presumption of parental fitness]; In re Chantal S. (1996) 13 Cal.4th 196, 206, 51 Cal.Rptr.2d 866, 913 P.2d 1075 [presumption of parental fitness that underlies custody law in family court does not apply in dependency cases].) J.P. came within the juvenile court's jurisdiction and was removed from mother's care after mother was arrested for drunk driving. J.P. was eventually returned to mother's care under a plan of a family maintenance, but his return to mother did not mean that she is no longer considered unfit. Under the statutory scheme, children must be returned to their parents at a status review hearing unless the court finds that there is a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. (\\u00a7 366.21, subd. (e).) A determination that a child is not at a substantial risk of detriment in a parent's custody in a dependency proceeding does not confer a finding of parental fitness on an offending parent and does not automatically terminate a dependency. The dependency proceedings were still ongoing. As a result, mother does not benefit from the presumption that she acts in her child's best interests.\\nIt follows that in a family law proceeding like Gayden , visitation orders made over a parent's objection should be evaluated using a different rubric. Family court and juvenile court serve different purposes. ( In re Chantal S. , supra , 13 Cal.4th at pp. 200-201, 51 Cal.Rptr.2d 866, 913 P.2d 1075.) \\\"The family court is established to provide parents a forum in which to resolve, inter alia, private issues relating to the custody of and visitation with children.... The juvenile court, by contrast, provides the state a forum to 'restrict parental behavior regarding children, . and . to remove children from the custody of their parents and guardians.' \\\" ( Id. at p. 201, 51 Cal.Rptr.2d 866, 913 P.2d 1075.) Logic dictates that visitation orders in family law proceedings should be made over a parent's objection only under certain circumstances so as not to infringe upon a parent's fundamental right to make decisions concerning their children's care, such as if the factors outlined in Gayden and later echoed in Hirenia C. are met. ( Gayden , supra , 229 Cal.App.3d at p. 1521, 280 Cal.Rptr. 862 ; Hirenia C. , supra , 18 Cal.App.4th at p. 519, 22 Cal.Rptr.2d 443 ; see Troxel , supra , 530 U.S. at pp. 65-66, 120 S.Ct. 2054 [parents have fundamental right to make decisions concerning care, custody, and control of their children].) Whereas, the best interest standard governs in dependency proceedings, and the juvenile court should exercise its discretion to craft visitation orders for nonparents only after making a finding that doing so would be in the child's best interest. (See In re Korbin Z. (2016) 3 Cal.App.5th 511, 518, 207 Cal.Rptr.3d 525 [juvenile court has broad discretion to determine what is in child's best interest when fashioning dispositional order]; J. T. , supra , 228 Cal.App.4th at pp. 962-964, 175 Cal.Rptr.3d 744 [visitation order made over mother's objection did not infringe upon her fundamental right to parent].)\\nIn fact, the best interest standard is the one ultimately applied by the Hirenia C. court despite its reference to the factors described in Gayden. In Hirenia C. , the appellate court held that if there was \\\"competent evidence that it would be in [child's] best interests to have visitation with appellant, [the juvenile court] may enter an order to that effect .\\\" ( Hirenia C. , supra , 18 Cal.App.4th at p. 520, 22 Cal.Rptr.2d 443.) Thus, if sufficient evidence supports the juvenile court's determination that the visitation order was in J.P.'s best interest, the juvenile court did not abuse its discretion.\\nHere, the record reflects that the juvenile court expressly determined that visits between Albert and J.P. was in J.P.'s best interest and this finding is supported by the evidence in the record. J.P. had a bond with Albert; he used to live with Albert and used to call Albert \\\"daddy.\\\" Albert said that he developed a close relationship with J.P. and wanted to maintain the relationship. Albert also said that he used to take J.P. on family outings, and they spent weekends together. During the hearing, the Department expressed that Albert and J.P. shared a bond and recommended that the juvenile court order visits. The Department's prior reports indicated that when J.P. visited with Albert, the visits were generally good, and both children, including J.P., \\\"show[ed] comfort\\\" in Albert's presence. Albert was also hands-on with the children when they were with him. During visits, Albert ensured that the children were fed and took them to local parks, buying them items such as clothes and food.\\nWe acknowledge that there was evidence weighing against ordering visits. Mother disputed Albert's testimony. She claimed that J.P. did not ask about Albert and was happy \\\"where he [was] at.\\\" Mother also disputed Albert's claim that he used to live together with mother, J.P., and A.A., describing Albert as merely living with them \\\"off and on.\\\" The juvenile court, however, could have reasonably discredited her testimony as motivated by her animosity toward Albert. And, although mother alleged that Albert was abusive, the allegations of abuse were investigated and were determined to be either unfounded or inconclusive. J.P.'s attorney expressed that he believed that in the short term, visits would be beneficial to J.P., but worried that if visits were cut off in the future, J.P.'s loss of \\\"that figure from his life\\\" would be detrimental.\\nThe existence of evidence supporting mother's position does not demonstrate that the juvenile court abused its discretion. Our role is not to substitute our judgment for that of the juvenile court or reweigh the evidence. \\\" ' \\\" 'The appropriate test for abuse of discretion is whether the [juvenile] court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' \\\" ' \\\" ( In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465, 114 Cal.Rptr.2d 320.) Here, there was sufficient evidence supporting the juvenile court's determination that ordering visitation with Albert would be in J.P.'s best interest. As a result, we find no abuse of discretion.\\nDISPOSITION\\nThe juvenile court's order is affirmed.\\nWE CONCUR:\\nGreenwood, P.J.\\nElia, J.\\nUnspecified statutory references are to the Welfare and Institutions Code.\\nA.A. was also subject to dependency proceedings. J.P. and A.A.'s cases were often heard together, and the Department's reports regularly encompassed both children. Mother, however, only appeals from a visitation order affecting J.P.\\nAs the Department observes, these types of visitation orders would also be consistent with the statutory requirements that a juvenile court must ensure that child welfare agencies make reasonable efforts to maintain relationships between older dependent children and \\\"individuals other than the child's siblings who are important to the child\\\" if the dependent child is placed in foster care. (\\u00a7 366, subd. (a)(1)(B).) The inclusion of individuals that are important to the child-a broad category that includes nonrelatives-in the dependency scheme suggests that juvenile courts may order visitation between older dependent children and important individuals to maintain these relationships. It follows that juvenile courts should also have the discretion to order visitation for younger dependent children and children who are not in foster care so long as doing so is in the child's best interest. \\\"[W]eighing the best interests of the dependent child is always the court's paramount concern.\\\" (In re Christopher I. (2003) 106 Cal.App.4th 533, 550, 131 Cal.Rptr.2d 122.) We can think of no reason why certain categories of dependent children should be excluded.\\nIn her reply brief, mother cites to In re G. S. R. (2008) 159 Cal.App.4th 1202, 72 Cal.Rptr.3d 398 and argues that in California, when there is no detriment finding there is no finding of parental unfitness. Mother misreads In re G. S. R. , which reiterated the principle that due process requires a finding of parental unfitness before parental rights may be severed. (Id. at pp. 1210-1212, 72 Cal.Rptr.3d 398.) Nothing in In re G. S. R. contradicts the principle that the presumption of parental fitness is inapplicable in dependency cases.\\nWhen the juvenile court determined that Albert did not qualify as J.P.'s presumed parent, it concluded that there was insufficient evidence of detriment as required under Family Code section 7612, subdivision (c). We note that a finding that there is insufficient evidence of detriment if Albert is not found to be J.P.'s third parent is not logically inconsistent with a conclusion that visitation with Albert would be in J.P.'s best interest.\"}"

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+"{\"id\": \"12515885\", \"name\": \"The PEOPLE, Plaintiff and Respondent, v. Lee Samuel CAPERS, Defendant and Appellant.\", \"name_abbreviation\": \"People v. Capers\", \"decision_date\": \"2019-08-08\", \"docket_number\": \"S146939\", \"first_page\": \"80\", \"last_page\": \"104\", \"citations\": \"251 Cal. Rptr. 3d 80\", \"volume\": \"251\", \"reporter\": \"West's California Reporter\", \"court\": \"California Supreme Court\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-27T20:59:25.980781+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"The PEOPLE, Plaintiff and Respondent,\\nv.\\nLee Samuel CAPERS, Defendant and Appellant.\", \"head_matter\": \"The PEOPLE, Plaintiff and Respondent,\\nv.\\nLee Samuel CAPERS, Defendant and Appellant.\\nS146939\\nSupreme Court of California.\\nAugust 8, 2019\\nAs Modified on Denial of Rehearing October 23, 2019\\nMichael J. Hersek and Mary K. McComb, State Public Defenders, under appointments by the Supreme Court, and Peter R. Silten, Deputy State Public Defender, for Defendant and Appellant.\\nKamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Holly D. Wilkens, Robin Urbanski and Donald W. Ostertag, Deputy Attorney General, for Plaintiff and Respondent.\", \"word_count\": \"10900\", \"char_count\": \"67692\", \"text\": \"Opinion of the Court by Chin, J.\\nA San Bernardino County jury found defendant Lee Samuel Capers guilty of the first degree murders of Nathaniel Young and Consuelo Patrida Young. ( Pen. Code, \\u00a7 187, subd. (a).) As relevant here, the jury found true multiple murder, robbery-murder, and burglary-murder special circumstances. (\\u00a7\\u00a7 190.2, subds. (a)(3), (a)(17), & (a)(17)(G).) The jury found defendant guilty of two counts of second degree robbery (\\u00a7 211), arson of property (\\u00a7 451, subd. (d)), and felon in possession of a dagger in a penal institution (\\u00a7 4502, subd. (a)). The jury found defendant personally used a deadly weapon-a handgun-within the meaning of section 12022.53, subd. (b). The jury separately tried and found defendant's five prior section 211 robbery convictions to be true.\\nAfter a penalty trial, the jury returned a verdict of death. The court denied the automatic motion to modify the verdict and imposed a judgment of death. (\\u00a7 190.4, subd. (e).) This appeal is automatic. (\\u00a7 1239, subd. (b).) We affirm the judgment in its entirety.\\nI. The Facts\\nA. Guilt Phase\\n1. Overview\\nThe evidence showed that on Monday, November 9, 1998, defendant and three accomplices entered the Barstow T-shirt shop owned by married couple Nathaniel and Consuelo Young, robbed the store, shot and killed Nathaniel, and raped and beat Consuelo before killing her. They then set fire to both victims' bodies.\\nDefendant cross-examined prosecution witnesses, but presented no evidence of his own.\\n2. Prosecution Evidence\\nNathaniel and Consuelo, who had been married for seven years, opened a T-shirt store in Barstow called \\\"T's Galore 'N More\\\" in 1998. Consuelo typically managed the store because Nathaniel worked on the Marine Logistics Base nearby.\\nRamon Tirado lived behind the T-shirt shop and had known defendant and defendant's half-brother Anthony Leatham for years. Leatham and two other individuals inquired about the Barstow T-shirt shop that the Youngs owned. He asked Tirado to join them in robbing the store. Tirado declined.\\nOn Monday November 9, 1998, Nathaniel did not arrive for his scheduled shift at the base; he had never missed work without first calling. After he missed work the next day, Margaret Carter, the base's comptroller, became concerned. She called his home and left a message on his answering machine. She then asked a superior what to do about her concern. He told her to call the Barstow Police Department and request a welfare check, which she did.\\nAt the same time Margaret called the Barstow police, two of Nathaniel's colleagues at the base, Loretta Becknall and Nancy Derryberry, went to the T-shirt store to check on him. They could not see inside the store because soot covered the windows. The colleagues notified Margaret that there might have been a fire at the store. Margaret again called Barstow police and also spoke to Bonnie Hulse, an investigative assistant for the Criminal Investigation Division of the Marine Corps. Margaret was told to call the Provost Marshal, who had jurisdiction over the military base. The Provost Marshal's Office notified the Barstow Fire Department.\\nOn Tuesday, November 10, 1998, Barstow Fire Department personnel inspected the victims' T-shirt store for signs of a fire. Salvatore Carrao, the Barstow Fire Department Division Chief, and Fire Engineer Steve Ross noticed heavy black soot on the inside of the store windows. They checked the front door, but it did not open. They checked the back door, which was unlocked, and Carrao opened it to look inside. He immediately saw two corpses and concluded there had been a fire inside. He closed the door, called law enforcement, and secured the store. Law enforcement soon arrived. Barstow Police Sergeant Andrew Espinoza and criminalist Randy Beasley entered the building. There they found five .45-caliber bullets and only one bullet casing. They also found a trash can that contained blood, water, and a bloody mop. Taken together, Beasley believed these items strongly suggested that someone had attempted to clean up a crime scene. Beasley found a pair of women's panties in a toilet that had been cut straight across, from one leg hole to the other. Beasley also found a wallet and a purse next to each other. The wallet, which belonged to Nathaniel, contained no money or credit cards. Consuelo's purse also contained a wallet, which, like Nathaniel's held no money. One of the bodies, tentatively identified as Nathaniel's, was stained with blood, and duct tape had been wrapped around its throat and neck. The body was partially burned.\\nFire inspection specialist Rita Gay was also on the scene. She believed the fire to have been a \\\"slow burn\\\" that did not immediately flame up but smoldered for a long time. Gay observed soot on the furnishings and floor. She saw the two victims on the floor. The male victim lay prone and had golf clubs laying across his back. The female victim was more severely burned, such that the left side of her body had been largely consumed by fire. Gay detected the odor of gasoline in close proximity to the bodies. Gay did not examine either victim, but concluded that each had been separately set on fire.\\nLaw enforcement personnel identified the second body as likely belonging to Consuelo. Her body had been largely consumed by the fire; much of her remains consisted of ashes and bones. They also discovered a large amount of blood and two metal golf clubs covered in blood. They noticed human hair on the golf clubs and deemed it to have come from Consuelo's head because she had wavy hair while Nathaniel's was more tightly curled. Catherine Wojcik, a sheriff's department criminalist, later compared the hairs found at the crime scene with the hair of both victims. Wojcik determined that the two hairs found on the golf club were similar to samples of Consuelo's hair, though she could not say definitively that they came from Consuelo. She determined Nathaniel was not the source of the two hairs.\\nArson investigators later concluded the perpetrators had started two fires, each originating on the body of the two victims. A thick greasy substance was observed on the floor adjacent to the bodies; investigators concluded it might have been the victims' melted body fat.\\nCharlene Garcia, Nathaniel's daughter, cleaned out the T-shirt store. She informed the police that Nathaniel's gun was the only item she found missing.\\nForensic pathologist and deputy medical examiner Dr. Steven Trenkle performed autopsies on both bodies. He testified that Nathaniel had been shot at least four times, and that his body contained eight entrance and exit wounds and had been moderately charred by fire. One bullet had cut through the brain stem and lodged in the base of the skull, and another went through the neck and severed the first cervical vertebrae underneath the skull. None of the injuries were consistent with having been struck with a metal golf club. Dr. Trenkle concluded Nathaniel died as a result of multiple gunshot wounds to the head, neck, and chest.\\nDr. Trenkle explained that Consuelo had suffered extensive blunt force trauma and that her body had been significantly burned. As noted, much of her body had been consumed in the fire. The blunt force trauma had shattered the skull and facial bones. Dr. Trenkle concluded Consuelo died as a result of multiple blunt force head injuries. He could not be certain whether Consuelo was alive when her body was burned.\\nOn November 15, 1998, Barstow Police Officer John Cordero notified Barstow Police Detective Leo Griego that defendant wished to speak with Griego about the T-shirt store murders. Griego spoke with defendant, first at defendant's residence and later at the Barstow Police Department. Defendant denied involvement in the murders, but said he knew two of the people involved.\\nLisa Martin became acquainted with defendant a month after the murders. She let defendant stay at her home. During his stay, defendant mentioned four or five times how he killed a man and woman in Barstow. Defendant described how he personally shot the man, poured gasoline on both victims, and lit them on fire. He told Lisa that the woman begged and screamed for her life and that he thought it was funny. He also told her that he committed the crimes with his younger half-brother, Antonio Leatham (whom he called \\\"Eagle\\\"). Lisa testified that defendant kept the lighter he used to set the victims on fire and showed no remorse for killing them. Leatham also came to Lisa's house at one point and defendant mentioned the murders in front of him. Blake Martin-Ramirez, Lisa's 14-year-old son, testified that he heard defendant describe his role in killing the victims and taking their sports car. About a week after defendant told Lisa about the murders, she called defendant's mother and told her to move him out of the apartment.\\nGriego's investigation focused on defendant and Leatham as suspects. In January 1999, Griego questioned defendant, who was incarcerated at Chino State Prison. Defendant again denied involvement in the crimes.\\nIn December 1999, Griego collected defendant's biological samples so they could be compared to DNA samples obtained from evidence collected at the crime scene. All the DNA collected at the crime scene was matched to either Consuelo or Nathaniel.\\nAlthough defendant had denied involvement in the crimes and only talked about who he thought might have committed the T-shirt store murders, his version of events surrounding the murders changed when he met with detectives Steve Shumway and Ronald Sanfilipo on January 5, 2001. The interview, conducted at the Riverside Police Department, came about because defendant's cellmate in Riverside County Jail told authorities that defendant had discussed a Barstow double-murder where the victims had been burned. Griego watched on a video monitor in an adjoining room. After being read and waiving his Miranda rights, defendant explained he had asked to speak to them about the murders because it was \\\"something that ha[d] been weighing [him] down.\\\"\\nAfter a half-hour's conversation, Griego entered the interview room. Defendant again was read and waived his Miranda rights, and he and Griego discussed the crimes for 45 minutes to an hour. Defendant was then transported to the Barstow Police Department where detectives Griego and Keith Libby conducted an interview. During that interview, defendant, who was 24 years old (and nicknamed \\\"Oso\\\") at the time of the murders, explained that he committed the crimes with 15-year-old Carlos Loomis (whom he called \\\"Bam-Bam\\\"), 22-year-old Ruben Romero (whom he called \\\"Wino\\\"), and \\\"another guy \\\" (whom he sometimes called \\\"the other juvenile\\\" or \\\"a 14-year-old kid.\\\" Defendant consistently asserted the fourth perpetrator was not his half-brother Leatham. He said Loomis and Romero offered him \\\"an ounce of dope and money if he agreed to act as a lookout\\\" during a robbery. Defendant said he agreed to be a lookout because \\\"he was real bad on dope.\\\" Defendant maintained that Romero was in charge, and while they were all waiting around before the robbery, defendant went to Barstow Liquor and purchased a 40-ounce beer, half of which he drank immediately. Once the robbery commenced, Loomis and Romero verbally and physically abused the victims and \\\"took the couple out of [defendant's] line of sight.\\\" About 10 or 15 minutes later, defendant heard gunshots. Loomis and Romero jumped into a blue or white Camaro and told defendant that they were headed to a Motel 6. Defendant then went back to his mother's house.\\nDetective Libby then told defendant that telling only \\\"a little bit of the truth\\\" would not be good for him, and that it would be best if he told the \\\"whole truth.\\\" Libby also said that if defendant wanted him to believe that Leatham was not involved in the murders, he would have to convince him that he was telling them the \\\"complete truth.\\\" Defendant then admitted that he entered the store and forced Consuelo and Nathaniel through the store's back door. Defendant claimed that Loomis hit Consuelo with a stick-like object several times. During the beating, Consuelo was pleading: \\\"Stop please. Don't hurt us. Don't hurt us.\\\" According to defendant, Romero shot Consuelo before Loomis raped her while she was barely moving and forced Nathaniel to watch. Defendant said that during the rape, Consuelo had screamed \\\"for a little while.\\\" During this same interview, defendant said that he beat Nathaniel a number of times after Nathaniel yelled and screamed to protect his wife.\\nDefendant also said that Romero then shot a .45-caliber firearm with a taped-up handle an unspecified number of times, but defendant did not say whom he shot, or how he came into possession of the gun. He said, \\\"I know my guns . I've been messing with guns for a long time, [so I] knew the caliber . right off the top.\\\" Defendant also said, \\\"I didn't pull the trigger; I didn't rape nobody; I didn't set nobody on fire.\\\" After the rape, beating, and shooting, defendant said either Romero or Loomis used gasoline and a lighter to set the bodies on fire. When asked, defendant said he could not recall anyone cleaning up the crime scene. He also said that someone, probably Loomis, had gathered up the .45-caliber shell casings.\\nAfter completing the robbery and murders, defendant said he and the other perpetrators stole a Camaro parked at the store and drove it to a nearby Motel 6, where they went their separate ways. At the end of the interview, defendant agreed to walk the detectives through the crime scene.\\nThe next day, officers taped defendant's reenactment of the crimes at the T-shirt store. Defendant reiterated what he told officers during the interviews the day before and again admitted to beating Nathaniel. At the conclusion of the reenactment, defendant said, \\\"I'm just as guilty as the man who pulled the trigger and the man who started the fire.\\\" Defendant said he felt bad for the victims, that \\\"it wasn't supposed to happen that way to them, you know, but that still isn't going to change the fact that I was actually involved here and it's not going to change the fact, yes, I'm expecting a conviction out of this and whatever I receive, I deserve, that's it. That's all I got to say.\\\" Two weeks later, Griego contacted Leatham to speak with him about the murders before transporting Leatham to the Riverside Police Department so that he could speak with defendant before his arraignment on an unrelated offense.\\nDuring a subsequent interview on January 25, 2001, defendant took full responsibility for the crimes. Defendant assured detectives that he was now confessing because he wanted to come clean. He admitted that the crimes happened quickly and that he fired the fatal shots. He subsequently disposed of the murder weapon and the shell casings near some railroad tracks. However, he said Loomis poured the gasoline on the victims, and Romero lit them on fire. He also claimed Leatham stayed outside during the murders and did not do anything. He then stated: \\\"But just so you know, get my little brother involved with this, you know, putting him in custody, you know, I mean, where does [Loomis] and [Romero] fall into this? You know what I mean. It seems like this is just a conspiracy against me and him. Me and my brother you know?\\\" After defendant was asked why he wanted to \\\"take the rap\\\" for everyone, defendant replied, \\\"Just charge me with everything, you know what I mean?\\\" He could not remember who he shot, but he did remember that he shot three rounds. He did not want to tell detectives where he got the gun, fearing that his \\\"whole family would be in jeopardy and everything you know what I mean?\\\" Detectives Griego and Espinoza interviewed defendant one last time at North Kern State Prison on April 16, 2002. Defendant said he met with the group to plan the robbery. During the robbery, defendant took $100 in cash and the keys to the Camaro from Nathaniel's pocket. He also stole Consuelo's wedding ring, trading it for \\\"dope.\\\" Since Nathaniel continued yelling during the robbery, the group bound him with duct tape. Defendant then poured gasoline on the victims to scare them into giving him their money. Defendant changed his story to say that Romero then shot the victims, but defendant used a lighter to set them on fire. He said he dropped a match on them but it \\\"didn't ignite.\\\" When asked who started the fire, defendant said, \\\"somebody else could have . hit them with a match or something, I don't know. I do remember that when I dropped that match it did not go up.\\\" He said he did not want to implicate anyone else because he \\\"can't really identify the individuals with me.\\\" He also said he did not feel bad for the victims and their families because he was \\\"gonna have to do prison time.\\\"\\nDetective Dennis Florence testified that a shoot-out involving a man named Jerry Corhn occurred in March 2002. Corhn fired on officers as they pursued him following an attempted narcotics transaction at a restaurant in Barstow. Corhn ultimately died from a self-inflicted gunshot wound to the head. Ballistics testing showed that the .45-caliber firearm recovered from Corhn's vehicle matched bullet casings recovered from the T-shirt store murders. When Griego showed defendant a photo lineup that included a picture of Corhn, defendant pointed to Corhn's picture and said he knew him because Corhn had purchased a firearm from him when he was staying in Barstow.\\n3. Defense Evidence\\nDefendant did not testify at trial, nor did he present any evidence. He did attempt to call one witness, Amber Renteria-Kelsey, but she successfully invoked her Fifth Amendment right against self-incrimination, and the court excused her.\\nB. Penalty Phase\\nLisa Martin and her mother, Penny Bartis, testified that on January 4, 2000, a month after he moved out of Martin's home, defendant returned with two other men and committed a home invasion robbery. Defendant knocked on the door. When Bartis answered, defendant burst into the house. His two accomplices followed and took the victims to a back bedroom. Defendant was armed and threatened to kill Martin and her family. He then stole money and personal property. Martin testified that the robbery lasted several hours, and defendant and his accomplices stole $6,000 cash as well as jewelry, expensive vases, a safe, and important papers. Martin explained that after the robbery defendant called her and told her that her son, who was also present during the robbery, was being watched. She subsequently took her son out of school. Bartis testified that after the robbery, she received four or five phone calls from defendant asking for Martin. Martin fled to Colorado, leaving her son with Bartis.\\nMisty Sedillo testified that in 1993, when she was 16 years old, she rode with defendant in a car. Defendant and his friends wanted to shoot at a house, but Misty asked them not to because her brother was playing in the front yard. Later during the ride, defendant pointed a gun at Misty's head.\\nIn September 2002, a deputy sheriff found a homemade shank in defendant's jail cell. Defendant said he feared for his life and that he would not hesitate to use the shank and would make another. He also admitted that for two months he smuggled the shank into court because he planned to stab one of the witnesses who was testifying against him. Another deputy sheriff found a letter defendant tried to mail to elected District Attorney Michael Ramos. In the letter, defendant advised the prosecution to give him the death penalty or else there will be \\\"a lot of blood\\\" on the \\\"County's hands.\\\" The prosecution also presented evidence of defendant's 1994 felony conviction for receiving stolen property.\\nCharlene Garcia, Nathanial's daughter and Consuelo's stepdaughter, testified that her parents' murder had a significant negative impact on her and her family.\\nDefendant presented the testimony of Albert Capers, his biological grandfather. Capers stated that he and his wife adopted and raised defendant, whom they loved.\\nII. DISCUSSION\\nA. Issues Regarding Guilt\\n1. Alleged Lack of Independent Evidence\\nDefendant initially contends that his statements to law enforcement about his involvement in the T-shirt store crimes were so inconsistent and contradictory that they could not serve as corroboration of one another. He does not challenge the admission of his statements on Miranda grounds. However, he contends that because there was no physical evidence or eyewitness testimony to corroborate the trustworthiness of any one of his various confessions, his conviction must be reversed. Defendant relies on the federal common law corroboration rule intended to prevent errors in convictions based on a witnesses' untrue statement alone. ( Opper v. United States (1954) 348 U.S. 84, 93, 75 S.Ct. 158, 99 L.Ed. 101.) If applied here, the rule means that defendant's admissions or confessions may not serve as the basis for his conviction absent \\\"substantial independent evidence which would tend to establish the trustworthiness of the [admissions or confessions].\\\" ( Ibid. ) However, as part of the federal common law, we are not bound to follow the federal corroboration rule.\\nSome state courts follow the federal corroboration rule (see, e.g., Armstrong v. State (Alaska 1972) 502 P.2d 440, 447 ), but California does not. We instead apply the corpus delicti rule, which originally required independent proof of an actual crime before extrajudicial admissions could be admitted as evidence. (See People v. Alvarez (2002) 27 Cal.4th 1161, 1169-1170, 119 Cal.Rptr.2d 903, 46 P.3d 372 ( Alvarez ).) The rule derives from California common law. ( Id. at p. 1173, 119 Cal.Rptr.2d 903, 46 P.3d 372.)\\nIn 1982, Proposition 8 abrogated much of the corpus delicti requirement when it added the Right to Truth-in-Evidence provision to article I of the California Constitution. ( Cal. Const., art. I, \\u00a7 28, subd. (d), added by initiative, Primary Elec. (Jun. 8, 1982), commonly known as Prop. 8 ( section 28 (d).) As Alvarez observed, with certain exceptions, Proposition 8 abolished \\\"all state law restrictions on the admissibility of relevant evidence, necessarily including the prong of the corpus delicti rule that bars introduction of an accused's out-or-court statements absent independent proof a crime was committed.\\\" ( Alvarez , supra , 27 Cal.4th at p. 1179, 119 Cal.Rptr.2d 903, 46 P.3d 372 ; see People v. Ray (1996) 13 Cal.4th 313, 341, 52 Cal.Rptr.2d 296, 914 P.2d 846.) We cautioned that the pre-2008 version of \\\" section 28 (d) did not eliminate the independent-proof rule insofar as that rule prohibits conviction where the only evidence that the crime was committed is the defendant's own statements outside of court.\\\" ( Alvarez , supra , 27 Cal.4th at p. 1180, 119 Cal.Rptr.2d 903, 46 P.3d 372.) We noted that the amount of independent evidence required is not great and may be circumstantial with only \\\" 'a slight or prima facie showing' \\\" that permits \\\"an inference of injury, loss, or harm from a criminal agency, after which the defendant's statements may be considered to strengthen the case on all issues.\\\" ( Id. at p. 1181, 119 Cal.Rptr.2d 903, 46 P.3d 372.) Alvarez made it clear, however, that the pre-2008 version of \\\" section 28 (d) did not affect the rule to the extent it (1) requires an instruction to the jury that no person may be convicted absent evidence of the crime independent of his or her out-of-court statements or (2) allows the defendant, on appeal, directly to attack the sufficiency of the prosecution's independent showing.\\\" ( Alvarez , supra , 27 Cal.4th at p. 1180, 119 Cal.Rptr.2d 903, 46 P.3d 372.) Even though the prosecution need satisfy only one prong of section 28(d)'s post-Proposition 8 requirement, both prongs of original section 28(d) were met here. Specifically, the record shows that the trial court instructed with CALJIC No. 2.72, which informed the jury that defendant's statements to law enforcement must be supported by independent evidence: \\\"No person may be convicted of a criminal offense unless there is some proof of each element of the crime independent of any confession or admission made by him outside of this trial. [\\u00b6] The identity of the person who is alleged to have committed a crime is not an element of the crime nor is the degree of the crime. The identity or degree of the crime may be established by a confession or admission. [\\u00b6] The corpus delicti of a felony-based circumstance need not be proved independently of a defendant's extrajudicial statement.\\\" Indeed, defendant's words alone may establish the degree of his crime or his identity as the perpetrator. ( People v. Valencia (2008) 43 Cal.4th 268, 297, 74 Cal.Rptr.3d 605, 180 P.3d 351 ; People v. Ledesma (2006) 39 Cal.4th 641, 721, 47 Cal.Rptr.3d 326, 140 P.3d 657.) The jury was also instructed that it was the exclusive judge of the truth of defendant's confessions and admissions; the instruction defined both a confession and an admission and instructed that the jury should view any such statements with caution.\\nThe People's showing of a criminal act, independent of defendant's statements, satisfies the corpus delicti rule. Here, there was substantial independent evidence of \\\"injury, loss, or harm by a criminal agency.\\\" ( Alvarez , supra , 27 Cal.4th at p. 1171, 119 Cal.Rptr.2d 903, 46 P.3d 372.) Defendant told law enforcement that he fired the fatal shots that killed one of the victims, hid the .45-caliber gun and bullet casings, poured gasoline on the victims, and lit them on fire. Much of the physical evidence corroborates defendant's statements, including the victims' burnt bodies, .45-caliber bullets and one bullet casing recovered at the scene of the murders, and the ample physical evidence that the victims were beaten before they were killed. As noted, the autopsy concluded Nathaniel died from gunshot wounds and that Consuelo died from blunt force head injuries.\\nDefendant, however, contends that his well-documented drug and alcohol abuse render all his recollections fatally suspect. Defendant advances a related argument, namely, that his statements were so contradictory, and his history of drug and alcohol abuse, including during the day of the crimes, is so clear, that none of his statements is trustworthy enough to even warrant corroboration. He notes he gave 10 separate statements to authorities. He recounts that in his first statements to Griego, he denied all involvement in the crimes. Later he claimed only to be a lookout. Still later, he confessed to pouring gasoline on the victims. Similarly, his description of the perpetrators changed over time and was thus unreliable.\\nDefendant claims that statements of someone with his history of substance abuse, who admitted to being under the influence of drugs and alcohol at the time of the event in question, do not even evidence minimal indicia of reliability and trustworthiness. Additionally, defendant asserts that when he spoke to law enforcement in 2001, he was on \\\"psychotopic [sic ] medication.\\\"\\nDefendant also contends that his most inculpatory statements to law enforcement were effectively coerced, and thus even less trustworthy than some of his earlier statements because he was threatened with his half-brother's incarceration if he did not tell them what they wanted to hear. Additionally, he claims that his statements to Martin and Bartis lacked trustworthiness because they were biased against him because he robbed them.\\nContrary to defendant's argument, considerations of trustworthiness, whether based on his ability to recall or on other factors, are the exclusive province of the jury. ( People v. Anderson (2018) 5 Cal.5th 372, 404, 235 Cal.Rptr.3d 1, 420 P.3d 825.) Thus, allowing the jury to judge the relevant evidence did not violate defendant's due process rights. ( People v. Lopez (2018) 5 Cal.5th 339, 353-354, 235 Cal.Rptr.3d 64, 420 P.3d 878.)\\nInitially, we note that defendant presents no evidence that investigators either tainted the evidence or coerced defendant's inculpatory statements. Rather, the jury was presented with ample evidence corroborating defendant's inculpatory statements. In addition to the physical evidence that matched defendant's statements, the jury heard Griego testify that law enforcement purposefully withheld from the public certain information about the crimes-e.g., the caliber of the firearm used, that Nathaniel's cause of death was by a firearm, and that Nathaniel had been bound with duct tape. Defendant's statements contained this same information. Defendant also admitted that he and the others stole Consuelo's Camaro and drove it to a nearby Motel 6. As already noted, the car was found in a Motel 6 parking lot about two miles from the crime scene. In addition, Tirado testified that a week before the murders defendant and his brother spoke with him about robbing the victims' T-shirt shop, and Leatham asked if Tirado wanted to participate in the robbery, but Tirado declined. Although Tirado stated at one point that it was Leatham who did most of the talking about planning to rob the T-shirt store, his statement was consistent with defendant's admission that he and his cohorts planned the robbery.\\nWe conclude the corpus delicti rule was satisfied here and that the jury properly considered all of defendant's independent statements regarding his participation in the robbery and murders. To the extent there was inconsistency among defendant's various statements, the court properly left it to the jury to decide the veracity of each statement. This is true whether defendant characterizes some of his statements as voluntary, internalized (from a susceptible or weak defendant), compliant (occurring during police interrogation), false confessions-or as the product of a memory rendered unreliable by years of substance abuse, by sleep deprivation, or by psychotropic drugs. Similarly, we find, despite defendant's argument to the contrary, that his statements contained sufficient indicia of reliability to satisfy what we have described as the Eighth Amendment's \\\"heightened reliability standards for both guilt and penalty determinations in capital cases.\\\" ( People v. Cudjo (1993) 6 Cal.4th 585, 623, 25 Cal.Rptr.2d 390, 863 P.2d 635.)\\n2. Alleged Due Process Denial\\na. Background\\nThe prosecution's trial theory was that four people were involved in the T-shirt store murders: Defendant, Loomis, Romero, and defendant's half-brother, Leatham. The prosecution's case was that defendant's videotaped confessions supported the theory that defendant was the principal actor who had robbed and set fire to the victims.\\nTo support his defense that he was not responsible for robbing, shooting or burning the victims, defendant sought to present the testimony of Amber Renteria-Kelsey (Renteria) who made two statements to Griego (one on May 26, 1999, and one on October 5, 1999) that she had overheard Loomis admit to another gang member nicknamed \\\"Midget\\\" that he and Romero were involved in robbing and burning down the victims' T-shirt store.\\nOn November 1, 1999, Barstow Police Department received two handwritten letters addressed to Griego from Renteria, asserting that \\\"there was no truth\\\" to the statements she made to the detective during their May 26 and October 5, 1999 interviews. The letters did not mention the names of the perpetrators, or specifically describe the crime. They merely stated that Renteria \\\"was pretty much scared because I had already told you one thing and didn't know how to tell you the truth\\\" but she could not go on lying \\\"about this situation.\\\" In an interview with Griego in October 2003, Renteria again retracted her statements implicating both men, claiming she was on drugs when she made them, \\\"not in [her] right state of mind,\\\" and the statements were not true. She told the detective that \\\"What I told you at first about the two people, Bam-Bam [Loomis] and Wino [Romero] is not true.\\\"\\nDuring the trial's guilt phase and outside the presence of the jury, defense counsel stated that he intended to call Renteria as a defense witness. Renteria was in custody for an unrelated case and was present in court. The court appointed supervising deputy public defender Mark Shoup to represent Renteria and to determine if her testimony might tend to incriminate her such that she might assert her Fifth Amendment right to remain silent. Later, when the court asked if Renteria's testimony might expose her to criminal prosecution, Shoup stated that Renteria could be charged with committing a misdemeanor offense for falsely reporting criminal offenses to a peace officer. (See \\u00a7 148.5 [falsely reporting criminal offenses to a peace officer is misdemeanor offense].) Counsel advised Renteria to assert her Fifth Amendment privilege. The court then noted that the prosecution could offer Renteria transactional immunity. However, the prosecutor indicated that the People were not willing to provide immunity in the case. The court upheld Renteria's privilege invocation after concluding that it could not \\\"force her to make statements that may tend to incriminate her.\\\" The court ruled that defendant could not call Renteria as a witness. It explained that its ruling was tentative and that it would allow defense counsel to present points and authorities to support defendant's argument. The court noted that it would reopen the issue if it found \\\"something different as far as the testimony of Renteria.\\\"\\nDuring a subsequent discussion outside the presence of the jury, Shoup conceded that Renteria had no basis to assert her Fifth Amendment privilege for the section 148.5 misdemeanor offense of making the false police report to Griego because the one-year statute of limitations for that offense had run. When the court asked the prosecutor for his view whether there was a felony statute that applied to Renteria's statements, the prosecutor stated that he did not know, but that Renteria might be liable as an accessory under section 32. The court responded: \\\"I don't know how realistic [sic ] she can be an accessory . if her initial statement to [Griego] was that something that pointed suspicion at somebody else. I don't know.\\\" Defendant's counsel then asserted that Renteria did not have a valid privilege. Later, the prosecutor told the court that he had spoken to Shoup, and based on that conversation, he believed Renteria would be susceptible to a section 32 charge if her intent was to protect Loomis. He also noted that he was not sure of her intent because he had never spoken with her. Shoup agreed with the prosecutor's section 32 evaluation and noted that Renteria had exposure to the criminal statute because her last contact with Griego was in October 2003, and that if it was determined she lied in 2003, the three-year statute of limitations for a violation of section 32 had yet to run. Defense counsel argued that Renteria's statement implicating Loomis and Romero would exonerate defendant. When the court asked the prosecutor to explain how Renteria could make a false statement and still be criminally liable for a section 32 violation, the prosecutor hypothesized: \\\"She could have made up that first statement, but still know that he was involved. If she overheard another conversation that she never told Griego about, and then [lied] to Griego when she talked to him in 2003 to protect Loomis,\\\" then she could be liable as an accessory under section 32.\\nShoup later interjected, \\\"Just so the record's clear here, the only statements that I see that Amber Renteria [attributes] to Bam-Bam [Loomis] is that Bam-Bam said that he had to get out of town because he and his homie, Wino [Romero], had robbed a place on Main Street and the place burned down. And then, Renteria told me that Bam-Bam had also said that he had to burn the place to get rid of evidence. Those are the only statements that I am aware of. There is nothing in that that exonerates this defendant.\\\"\\nBefore the commencement of the penalty phase, Renteria again testified under oath, outside the presence of the jury. She repeated her invocation of her Fifth Amendment privilege. The court stated that it would grant Renteria immunity if it had the power to do so in order to resolve the matter, and again asked the prosecutor if his office would grant the witness immunity. The prosecutor declined, explaining, \\\"If we believe that Renteria had any credibility whatsoever, we would have used [her] statement to file on Carlos Loomis murder charges. We did not do that. We believe she has no credibility at all. That's important to put on the record.\\\" The court observed that the case was different from cases in which false testimony led to an erroneous conviction. (See e.g., Chambers v. Mississippi (1973) 410 U.S. 284, 298, 93 S.Ct. 1038, 35 L.Ed.2d 297.) The court then upheld Renteria's Fifth Amendment privilege and dismissed her as a defense witness. It concluded that the three-year statute of limitations for a violation of section 32 had not expired, and that Renteria was potentially exposed to criminal prosecution under section 32 for her statements to Griego that she recanted. During the penalty phase, the court similarly ruled that it would not allow the defense to call Renteria.\\nb. Discussion\\nDefendant asserts that Renteria's refusal to testify and thereby admit she lied to Griego about defendant's involvement in the T-shirt store murders denied him his due process right to present a defense under the Sixth Amendment. We disagree.\\nThe state and federal constitutions provide that a criminal defendant has the right \\\"to have compulsory process for obtaining witnesses in his favor.\\\" ( U.S. Const., 6th Amend.; Cal. Const. art. I, \\u00a7 15.) The federal compulsory process right is \\\"so fundamental and essential to a fair trial that it is incorporated in the Due Process Clause of the Fourteenth Amendment,\\\" making it applicable to the states.\\n( Washington v. Texas (1967) 388 U.S. 14, 17-18, 87 S.Ct. 1920, 18 L.Ed.2d 1019 ( Washington ).) Under federal law, a denial of the right to present a defense occurs when the exclusion of the evidence infringes \\\"upon a weighty interest of the accused.\\\" ( United States v. Scheffer (1988) 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413.) A weighty interest of the defendant is infringed when \\\"[t]he exclusions of evidence . significantly undermined fundamental elements of the accused's defense.\\\" ( Id. at p. 315, 118 S.Ct. 1261.)\\nOur state compulsory process right \\\"is independently guaranteed by the California Constitution\\\" under article 1, section 15, and is \\\"deemed to be at least as broad and fundamental as the federal\\\" right. ( In re Martin (1987) 44 Cal.3d 1, 30, 241 Cal.Rptr. 263, 744 P.2d 374 ( Martin ).) The government violates a defendant's constitutional right to compulsory process when it interferes with the exercise of a defendant's right to present witnesses on his own behalf. ( Ibid. ) A defendant establishes such interference when he or she demonstrates the prosecution intimidated defense witnesses by telling them they could be prosecuted for any crimes they revealed during their testimony. ( Ibid. ) Defendant must also demonstrate the misconduct was a substantial cause of his witness's refusal to testify. ( Id. at p. 31, 241 Cal.Rptr. 263, 744 P.2d 374.) Defendant additionally \\\"must show at least a reasonable possibility that the witness could have given testimony that would have been both material and favorable.\\\" ( Id. at p. 32, 241 Cal.Rptr. 263, 744 P.2d 374.) If a defendant successfully sustains his burden of demonstrating prejudice, the verdict must be reversed. ( Id. at p. 51, 241 Cal.Rptr. 263, 744 P.2d 374.)\\nIn Martin , we held that the defendant successfully demonstrated a compulsory process violation. ( Martin , supra , 44 Cal.3d at p. 42, 241 Cal.Rptr. 263, 744 P.2d 374.) There, the prosecutor committed prejudicial misconduct when he informed the defense witness's attorney that if the defense witness testified, he would not get immunity and would be prosecuted if he implicated himself in a crime or committed perjury. ( Id. at pp. 36-37, 40, 241 Cal.Rptr. 263, 744 P.2d 374.) We found substantial causation between the misconduct and the defendant's inability to present witnesses on his own behalf because the witness stated he decided to assert his Fifth Amendment right to remain silent after he learned the prosecutor would not grant him immunity and he had an encounter with a district attorney investigator who threatened arrest and got \\\" 'in his face.' \\\" ( Id. at p. 37, 241 Cal.Rptr. 263, 744 P.2d 374.) Martin also held the testimony was reasonably \\\" 'material and favorable' \\\" because the witness's statements contradicted the testimony of another witness adverse to the defendant. ( Id. at p. 42, 241 Cal.Rptr. 263, 744 P.2d 374.)\\nDefendant claims the prosecutor committed prejudicial misconduct when he told Shoup that Renteria could be charged as an accessory under section 32, and that he would not grant Renteria immunity from prosecution on the ground that her statements and retractions were not credible. (See supra , 251 Cal.Rptr.3d at p. 96, 446 P.3d at p. 739; Martin , supra , 44 Cal.3d at pp. 37, 241 Cal.Rptr. 263, 744 P.2d 374.) Defendant would have us find prejudice because Renteria's proposed testimony was material and favorable to the defense because (1) her testimony would have exonerated him, and (2) the prosecutor's actions were a substantial factor in causing Renteria to invoke her Fifth Amendment privilege.\\nWe find no constitutional violation or prosecutorial misconduct. It was Shoup who initially told the court that his client was exposed to potential misdemeanor criminal liability. The prosecutor told the court that Shoup was in the best position to determine any potential criminal liability. He also agreed with Shoup that Renteria had exposure to criminal liability. Later, in answer to a question from the court, the prosecutor opined that Renteria would be exposed to criminal liability under a different statute (\\u00a7 32) than that initially identified by Shoup. Shoup agreed with the prosecutor's assertion. There is also no indication that the prosecutor committed misconduct when he refused to grant the witness immunity. He explained to the court that Renteria had no credibility as a witness. As he pointed out, if she had any credibility, the District Attorney would also have charged Loomis with the murders.\\nIn contrast to the trial court in Martin , the court here did not deny defendant the right to \\\"put on the stand a witness who was physically . capable of testifying . and whose testimony would have been relevant and material to the defense.\\\" ( Washington , supra , 388 U.S. at p. 23, 87 S.Ct. 1920.) Renteria's testimony would not have exonerated defendant, or been material to his defense, either by tending to prove he did not commit the crimes charged or by diminishing his involvement. In fact, Renteria's proposed testimony would have reiterated the prosecution's theory, based in part on defendant's admissions, that defendant committed the crimes with Loomis and Romero. Even if her statement had been admitted, she could have been impeached with her subsequent recantation and comments that she was on drugs when she implicated Loomis and Romero in the murders. Renteria's decision not to testify, upheld by the court, did not deny defendant the right to present a defense nor his Eighth Amendment right to have the jury hear all mitigating evidence at the penalty phase.\\n3. Alleged Fifth Amendment Privilege\\nApart from asserting a compulsory process violation, defendant also claims the court erred in granting Renteria's Fifth Amendment privilege because the statute of limitations to charge her had run on any violation of section 32 before she was to be called as a witness. Defendant asserts that the statute of limitations started running on a section 32 violation in October 1999, when Renteria sent her first retraction letter to the police and not when she retracted her inconsistent statements in October 2003.\\nThe Attorney General responds that defendant forfeited this argument because he did not raise it in the trial court. Defendant effectively concedes he never raised the claim in the trial court but contends he did not forfeit his claim because it is based on \\\"undisputed facts\\\" contained in one of Griego's reports that states: \\\"Renteria later (on 10-29-99) sent me a letter at the Barstow Police Department 'retracting' her statements.\\\" (See Williams v. Mariposa County Unified School District (1978) 82 Cal.App.3d 843, 850, 147 Cal.Rptr. 452 [if facts supporting new contention on appeal are undisputed, court may entertain the contention as a question of law on those facts].) Defendant also contends that although defense counsel might have been aware of Renteria's 1999 retraction letter and yet failed to raise it as a defense to her exposure to criminal liability, the prosecution team, including Griego, \\\"had an independent duty to make sure that the trial court was made aware of Renteria's earlier retraction.\\\" Defendant's claims fail. Even if we were to assume that Renteria's testimony would have assisted defendant's defense, and that he did not forfeit his claim regarding the 1999 retraction letter, he has stated no constitutional or prosecutorial violations.\\nThe standards governing defendant's contention that the court erred in granting Renteria's Fifth Amendment assertion are well established. The Fifth Amendment privilege provides that \\\"[n]o person . shall be compelled in any criminal case to be a witness against himself.\\\" ( U.S. Const., 5th Amend.; Cal. Const., art. I, \\u00a7 15.) The high court has held that the privilege \\\"marks an important advance in the development of our liberty.\\\" ( Kastigar v. United States (1972) 406 U.S. 441, 444, 92 S.Ct. 1653, 32 L.Ed.2d 212.) It \\\"must be accorded liberal construction in favor of the right it was intended to secure.\\\" ( Hoffman v. United States (1951) 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 ( Hoffman ).) Recognizing that the trial court must determine whether there is reasonable cause for the privilege to extend to the witness, Hoffman left it to the court to determine whether the witness's \\\"silence is justified.\\\" ( Ibid. ) Hoffman instructed: \\\"To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim 'must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.' \\\" ( Id. at pp. 486-487, 71 S.Ct. 814.) Our state jurisprudence incorporates the broad Hoffman standard. (See People v. Seijas (2005) 36 Cal.4th 291, 304, 30 Cal.Rptr.3d 493, 114 P.3d 742 ( Seijas ).)\\nOur Evidence Code implements the privilege as follows: \\\"Whenever the proffered evidence is claimed to be privileged under Section 940 [privilege against self-incrimination], the person claiming the privilege has the burden of showing that the proffered evidence might tend to incriminate him; and the proffered evidence is inadmissible unless it clearly appears to the court that the proffered evidence cannot possibly have a tendency to incriminate the person claiming the privilege.\\\" ( Evid. Code, \\u00a7 404.)\\nWe conclude that the federal and state constitutions supported the trial court's decision to grant Renteria her Fifth Amendment privilege whether or not the court was aware of the 1999 retraction letter that Renteria had sent to Griego. (See Seijas , supra , 36 Cal.4th at p. 304, 30 Cal.Rptr.3d 493, 114 P.3d 742.) On review of a witness's successfully invoking the Fifth Amendment privilege, we look only to see whether it is evident from the \\\"implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.\\\" ( Hoffman , supra , 341 U.S. at pp. 486-487, 71 S.Ct. 814.) In fact, a trial court may deny Fifth Amendment privilege only if it is \\\" 'perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency' to incriminate.\\\" ( Id. at p. 488, 71 S.Ct. 814, italics omitted.) Our state jurisprudence is equally strong in its protection of the right and holds that the Fifth Amendment does not allow \\\"the court to assess the likelihood of an actual prosecution in deciding whether to permit the privilege.\\\" ( Seijas , supra , 36 Cal.4th at p. 305, 30 Cal.Rptr.3d 493, 114 P.3d 742 ; see Evid. Code, \\u00a7 404.)\\nRenteria and her counsel could reasonably have concluded that Renteria would be subject to criminal prosecution under section 32 for her statements to Griego about what she overheard if compelled to testify. Section 32 subjects a person to criminal liability for aiding a principal in avoiding conviction or punishment for a crime. Renteria's inconsistent statements could have a tendency to incriminate her because it is possible they could have supported a charge that she sought to help Loomis and Romero in avoiding prosecution of the crimes at issue. (See \\u00a7 32; Evid. Code, \\u00a7 404.) We find the court did not err when it granted Renteria her Fifth Amendment privilege. ( Hoffman , supra , 341 U.S. at p. 488, 71 S.Ct. 814.)\\nWe also find that the prosecution did not engage in misconduct in failing to raise Renteria's 1999 retraction earlier during the trial court's colloquy about Renteria's asserted Fifth Amendment privilege. We have held that \\\"[a] prosecutor's conduct violates the federal Constitution when it infects the trial with such unfairness as to make the resulting conviction a denial of due process. Conduct by a prosecutor that does not rise to this level nevertheless violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.\\\" ( People v. Whalen (2013) 56 Cal.4th 1, 52, 152 Cal.Rptr.3d 673, 294 P.3d 915.) Even though the statute of limitations had passed on Renteria's initial alleged lie to Detective Griego in 1999, it had not passed when she allegedly lied in her second retraction of 2003. Here, there is no indication that the prosecutor's conduct rendered the trial so unfair as to deny defendant due process, or that his silence on the issue misled the court in order to persuade it in violation of California law. ( Ibid. ) The prosecutor thoroughly discussed the effect of Renteria's 2003 statement with the court in the presence of defendant's counsel as well as Renteria's counsel, as discussed supra , at pages 95 to 96, 446 P.3d at pages 738 to 739. Additionally, the prosecution's theory was based on defendant's own statements that he had committed the crimes with Loomis and Romero. There is simply no indication that awareness of the 1999 retraction letter would have changed the court's decision to grant Renteria's right to silence or would have otherwise infected the trial with such unfairness that defendant's conviction amounted to a denial of due process.\\nB. Issues Regarding Penalty\\n1. Constitutionality of California's Death Penalty Statute\\nDefendant asserts numerous challenges to California's death penalty law that we have repeatedly rejected. We reiterate our previous decisions.\\na. Whether Penal Code section 190.2 is impermissibly broad\\nDefendant asks that we reconsider our well-established holding that \\\"special circumstances listed in section 190.2 that render a murderer eligible for the death penalty, which include felony murder and lying in wait, are not so numerous and broadly interpreted that they fail to narrow the class of death-eligible first degree murderers as required by the Eighth and Fourteenth Amendments.\\\" ( People v. Brooks (2017) 3 Cal.5th 1, 114-115, 219 Cal.Rptr.3d 331, 396 P.3d 480 ; see ibid . [upholding the current version of section 190.2 which is very similar to version defendant was convicted under]; People v. Stanley (1995) 10 Cal.4th 764, 842-843, 42 Cal.Rptr.2d 543, 897 P.2d 481.) We decline to do so.\\nb. Whether Penal Code section 190.3 is arbitrary and capricious\\nWe have repeatedly rejected the claim that section 190.3, factor (a), which requires the jury to consider as evidence in aggravation the circumstances of the capital crime, arbitrarily and capriciously imposes the death penalty under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. (See Brooks , supra , 3 Cal.5th at p. 115, 219 Cal.Rptr.3d 331, 396 P.3d 480.) We decline defendant's request to review our prior holdings.\\nc. Whether unanimous jury findings are required\\nAs we have many times held, \\\"[t]he jury's reliance on unadjudicated criminal activity as a factor in aggravation under section 190.3, factor (b), without any requirement that the jury unanimously find that the activity was proved beyond a reasonable doubt, does not deprive a defendant of any federal constitutional rights, including the Sixth Amendment right to trial by jury and the Fourteenth Amendment right to due process.\\\" ( Brooks , supra , 3 Cal.5th at p. 115, 219 Cal.Rptr.3d 331, 396 P.3d 480.) We have also held that the federal Constitution does not require unanimous jury findings for imposing the death sentence, nor must the jury agree on the existence on any one aggravating factor. ( People v. Hamilton (2009) 45 Cal.4th 863, 960, 89 Cal.Rptr.3d 286, 200 P.3d 898.) Defendant contends that we must reconsider these holdings and others, including People v. Prieto (2003) 30 Cal.4th 226, 263, 133 Cal.Rptr.2d 18, 66 P.3d 1123 ( Prieto ), in light of Ring v. Arizona (2002) 536 U.S. 584, 602, 122 S.Ct. 2428, 153 L.Ed.2d 556 ( Ring ), which followed Blakely v. Washington (2004) 542 U.S. 296, 303-305, 124 S.Ct. 2531, 159 L.Ed.2d 403 (and Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 ), to hold that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt before its decision that death is the appropriate sentence.\\nDefendant makes the same argument as the defendant made in Prieto , that Ring undermines our previous holdings that: \\\"(1) the jury need not find that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt; (2) the jury need not find each aggravating factor beyond a reasonable doubt; (3) juror unanimity on the aggravating factors is not necessary; and (4) written findings are not required.\\\" ( Prieto , supra , 30 Cal.4th at p. 275, 133 Cal.Rptr.2d 18, 66 P.3d 1123.) As we explained in Prieto , the jury's penalty determination is normative, not factual, and is \\\"analogous to a sentencing court's traditionally discretionary decision to impose one prison sentence rather than another.\\\" ( Ibid . )\\nDefendant also asserts that the high court's decision in Hurst v. Florida (2016) 577 U.S. -, 136 S.Ct. 616, 193 L.Ed 2d 504 ( Hurst ), which invalidated Florida's capital sentencing scheme, also invalidates California's capital sentencing scheme. Like Ring , Hurst requires a jury to find each fact necessary to impose the death sentence. (Ibid .) Further, defendant claims that Hurst makes it clear that our sentencing determination violates the Sixth Amendment because it collapses \\\"the weighing finding and the sentence-selection decision into one determination and labeling it 'normative' rather than factfinding\\\" by a jury beyond a reasonable doubt. It does not. ( People v. Rangel (2016) 62 Cal.4th 1192, 1235 & fn. 16, 200 Cal.Rptr.3d 265, 367 P.3d 649.) Our cases have consistently rejected similar arguments. ( Ibid. ) The California sentencing scheme is materially different from that in Florida, which, in contrast to our death penalty statutes, mandates that the trial court alone must find that sufficient aggravating circumstances outweigh the mitigating circumstances. ( Hurst , supra , 577 U.S. -, [136 S.Ct. at p. 622] ; see Fla. Stat. \\u00a7 775.082(1).) Once the jury renders a verdict of death, \\\"our system provides for an automatic motion to modify or reduce this verdict to that of life imprisonment without the possibility of parole. ( Pen. Code, \\u00a7 190.4.) At the point the court rules on this motion, the jury 'has returned a verdict or finding imposing the death penalty.' \\\" ( Rangel , supra , 62 Cal.4th at p. 1235, fn. 16, 200 Cal.Rptr.3d 265, 367 P.3d 649.) We do not find that Hurst in any way undermines our previous rulings upholding the constitutionality of our death penalty scheme. (See People v. Becerrada (2017) 2 Cal.5th 1009, 1038, 216 Cal.Rptr.3d 662, 393 P.3d 114 ; see also People v. Brown (1985) 40 Cal. 3d 512, 541, 230 Cal.Rptr. 834, 726 P.2d 516 [jury may reject death sentence even after it has found aggravation outweighs mitigation].)\\nd. Validity of California's Death Penalty Jury Instructions\\ni. Reasonable doubt\\nDefendant contends that the trial court erred when it did not instruct the jury that the prosecution bore the burden of proof. He argues that his \\\"jury should have been instructed that the State had the burden of persuasion regarding the existence of any factor in aggravation, whether aggravating factors outweighed mitigating factors, and the appropriateness of the death penalty, and that it was presumed that life without parole was an appropriate sentence.\\\" Alternatively, defendant asserts that if there is no burden of proof, the jury should have been informed that the prosecution has no burden of proof in capital sentencing.\\nWe have never held that the Sixth and Fourteenth Amendments require a jury instruction regarding the burden of proof in capital sentencing. (See People v. Williams (1988) 44 Cal.3d 883, 960, 245 Cal.Rptr. 336, 751 P.2d 395.) As the Attorney General observes, the only burden of proof applicable at the penalty phase \\\"relates to aggravating evidence of other crimes under factor (b) [ People v. Foster (2010) 50 Cal.4th 1301, 1364, 117 Cal.Rptr.3d 658, 242 P.3d 105 ], and aggravating evidence of prior convictions under factor (c). (See [People v.] Williams , supra , [ (2010) ] 49 Cal.4th [405] at p. 459 [111 Cal.Rptr.3d 589, 233 P.3d 1000].)\\\" Otherwise, our cases do not require that a burden of proof be applied to aggravating evidence. (See People v. Lewis (2009) 46 Cal.4th 1255, 1319, 96 Cal.Rptr.3d 512, 210 P.3d 1119.)\\nii. Unanimous agreement on aggravating factors\\nDefendant contends the trial court violated his rights under the Sixth, Eighth, and Fourteenth Amendments when it failed to instruct the jury that it must unanimously agree on the same factors in aggravation. We have \\\"consistently held that unanimity with respect to aggravating factors is not required by statute or as a constitutional procedural safeguard.\\\" ( People v. Taylor (1990) 52 Cal.3d 719, 749, 276 Cal.Rptr. 391, 801 P.2d 1142 ( Taylor ).)\\nThe same is true for prior unadjudicated criminal activity. We have repeatedly rejected claims that the jury's findings of prior unadjudicated crimes must be unanimous in relation to evidence admitted under section 190.3, factor (b). ( People v. Foster (2010) 50 Cal.4th 1301, 1364-1365, 117 Cal.Rptr.3d 658, 242 P.3d 105.)\\niii. Alleged vague instructions\\nContrary to defendant's assertion, California's death penalty jury instructions are not unconstitutionally vague, because they provide that a jury \\\"must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole.\\\" ( CALJIC No. 8.88, italics added.) The \\\" 'so substantial' \\\" language does not violate the Eighth and Fourteenth Amendments. ( People v. Ghobrial (2018) 5 Cal.5th 250, 292, 234 Cal.Rptr.3d 669, 420 P.3d 179.)\\niv. Requiring written findings\\nWe also decline defendant's request that we reconsider our prior holdings that do not require jurors to submit written findings during a capital case's penalty phase. ( Taylor , supra , 52 Cal.3d at p. 749, 276 Cal.Rptr. 391, 801 P.2d 1142.)\\nv. Converse principle instruction\\nContrary to defendant's view, it is unnecessary for the trial court to instruct the jury that if it determines mitigation outweighs aggravation, it must return a verdict of life without the possibility of parole. ( People v. Kopatz (2015) 61 Cal.4th 62, 95, 186 Cal.Rptr.3d 797, 347 P.3d 952 ( Kopatz ).)\\nvi. Jury Unanimity on mitigation\\nWe continue to reject the contention raised here that a jury must be instructed regarding the standard of proof and the lack of a need for jury unanimity as to mitigating circumstances. ( Kopatz , supra , 61 Cal.4th at p. 95, 186 Cal.Rptr.3d 797, 347 P.3d 952, citing People v. Streeter (2012) 54 Cal.4th 205, 268, 142 Cal.Rptr.3d 481, 278 P.3d 754.)\\nvii. Presumption of life instruction\\nConsistent with our cases, we affirm the view that the trial court, contrary to defendant's argument, is not required to instruct the jury that the law favors a presumption of life in the penalty phase. (See People v. Arias (1996) 13 Cal.4th 92, 190, 51 Cal.Rptr.2d 770, 913 P.2d 980.)\\nviii. Failure to delete inapplicable sentencing factors\\nAs we held in People v. Cook (2006) 39 Cal.4th 566, 618, 47 Cal.Rptr.3d 22, 139 P.3d 492, \\\"[th]e trial court has no obligation to delete from CALJIC No. 8.85 inapplicable mitigating factors.\\\" We decline to reconsider our decision as defendant requests.\\nix. Failure to instruct that statutory mitigating factors are relevant solely as potential mitigators\\nWe also decline to reconsider our conclusion that the jury need not be advised which sentencing factors in CALJIC No. 8.85 are aggravating and which are mitigating. As we have held, the court does not need to define the statutory factors because the \\\"nature of those factors is self-evident within the context of each case.\\\" ( People v. Hillhouse (2002) 27 Cal.4th 469, 509, 117 Cal.Rptr.2d 45, 40 P.3d 754.)\\ne. Inter-case Proportionality Review\\nAs we have stated before, neither California's death penalty law nor the federal and state constitutions require inter-case proportionality review. ( People v. Virgil (2011) 51 Cal.4th 1210, 1289-1290, 126 Cal.Rptr.3d 465, 253 P.3d 553 ; People v. Hillhouse (2002) 27 Cal.4th 469, 511, 117 Cal.Rptr.2d 45, 40 P.3d 754.)\\nf. Equal Protection and California's Capital Sentencing Scheme\\nConsistent with our precedent, California's capital sentencing scheme does not, as defendant contends, violate the Equal Protection Clause of the federal Constitution because capital defendants and noncapital defendants \\\"are not similarly situated.\\\" ( People v. Williams (2013) 58 Cal.4th 197, 295, 165 Cal.Rptr.3d 717, 315 P.3d 1.) Consequently, it is permissible for noncapital defendants to have more procedural protections than capital defendants.\\ng. International Law\\nContrary to defendant's contention, international law does not prohibit application of the death penalty in the United States. Although the United States is a signatory to the International Covenant on Civil and Political Rights, \\\"it signed the treaty on the express condition '[t]hat the United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws' \\\" allowing capital punishment. ( People v. Thompson (2016) 1 Cal.5th 1043, 1130, 210 Cal.Rptr.3d 667, 384 P.3d 693, citing People v. Brown (2004) 33 Cal.4th 382, 403-404, 15 Cal.Rptr.3d 624, 93 P.3d 244.)\\n2. Alleged Cumulative Error\\nDefendant contends the alleged errors at trial cumulatively make his trial unfair and hence resulted in a miscarriage of justice, violating due process.\\nCumulative error is present when the combined effect of the trial court's errors is prejudicial or harmful to the defendant. ( People v. Winbush (2017) 2 Cal.5th 402, 487, 213 Cal.Rptr.3d 1, 387 P.3d 1187 ; People v. Hinton (2006) 37 Cal.4th 839, 897, 913, 38 Cal.Rptr.3d 149, 126 P.3d 981.) Although a defendant is entitled to a fair trial, he or she is not entitled to \\\"a perfect one.\\\" ( People v. Cunningham (2001) 25 Cal.4th 926, 1009, 108 Cal.Rptr.2d 291, 25 P.3d 519.) Even though the cumulative error rule recognizes the value in the efficient administration of justice, it does not elevate it above the protection of individual rights. ( People v. Cuccia (2002) 97 Cal.App.4th 785, 795, 118 Cal.Rptr.2d 668.)\\nWe conclude that defendant has not established cumulative error. There are no errors to aggregate. The corpus delicti rule was vindicated, and Renteria's failure to testify did not represent a compulsory process violation. The court also did not err prejudicially in sustaining Renteria's Fifth Amendment privilege. Renteria's proposed testimony had no tendency in fact to lessen defendant's criminal culpability and the jury heard overwhelming evidence of defendant's guilt.\\nIII. CONCLUSION\\nFor the foregoing reasons, we affirm the judgment in its entirety.\\nWe Concur:\\nCANTIL-SAKAUYE, C. J.\\nCORRIGAN, J.\\nLIU, J.\\nCU\\u00c9LLAR, J.\\nKRUGER, J.\\nGROBAN, J.\\nAll statutory references are to the Penal Code unless otherwise stated.\\nAs to the noncapital count of being a felon in possession of a dagger, defendant was sentenced to 25 years to life. The court stayed the sentences on the remaining noncapital counts.\\nMiranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (Miranda ).\\nThese interviews, in redacted form, were played for the jury during trial and entered into evidence as exhibits. (Exh. 78A-83A.) The jury was also provided with transcripts of the redacted recordings. (Exh. 78B-83B.)\\nApparently, the police knew that Loomis brought a stolen vehicle to the area, and that Romero had committed a robbery at the Downtown Motel, directly across from the Young's store. Detectives Griego and Espinoza contacted Loomis on February 6, 2001, at the former California Youth Authority facility in Paso Robles, California, and Romero on February 9, 2001, at Ironwood State Prison in Blythe, California. Loomis told Griego that he knew nothing about the Young murders. Griego found two rolls of duct tape at Loomis's house, but the tape did not match the duct tape found at the T-shirt store. Neither Loomis nor Romero nor Leatham was charged with the Young robbery and murders.\\nSubdivision (d) of section 28 of article I of the California Constitution was redesignated to be subdivision (f)(2) by voter initiative in 2008. (Prop. 9, as approved by voters, Gen. Elec. (Nov. 5, 2008).)\\nInitially, Shoup stated that false reporting could be a crime under section 148, which actually makes it a crime to verbally resist arrest; but the court understood him to mean Renteria could be charged under section 148.5 for giving a false report to a police officer.\"}"

cal/1931438.json

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+"{\"id\": \"1931438\", \"name\": \"JOSEPH A. COOK, Executor, etc., Respondent, v. W. W. COCKINS, Appellant\", \"name_abbreviation\": \"Cook v. Cockins\", \"decision_date\": \"1897-05-25\", \"docket_number\": \"L. A. No. 176\", \"first_page\": \"140\", \"last_page\": \"157\", \"citations\": \"117 Cal. 140\", \"volume\": \"117\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T23:34:30.815966+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOSEPH A. COOK, Executor, etc., Respondent, v. W. W. COCKINS, Appellant.\", \"head_matter\": \"[L. A. No. 176.\\nDepartment Two.\\nMay 25, 1897.]\\nJOSEPH A. COOK, Executor, etc., Respondent, v. W. W. COCKINS, Appellant.\\nFraud upon Creditors\\u2014Voluntary Transfer from Insolvent Husband to Wife \\u2014 Proof of Fraudulent Intent \\u2014 Constitutional Daw\\u2014Amendment of Code not Retroactive.\\u2014The amendment of 1895 to section 3442 of the Civil Code, which provides \\u201cthat any transfer or encumbrance of property, made or given voluntarily, or without a valuable consideration, by a party while insolvent, or in contemplation of insolvency, shall be fraudulent and void as to existing creditors, \\u201d prescribes not merely a rule of evidence, but also a rule of property which cannot be given retroactive effect upon transfers made before the passage of the amendment, but such transfers must be governed by the statute in force when the transfer was made; and a voluntary transfer from an insolvent husband to his wife, without consideration, made before the adoption of that amendment, cannot be presumed fraudulent as to creditors, as matter of law, at a trial had after the passage of the amendment; but it is incumbent upon a creditor contesting it to prove the fraudulent intent of the husband as matter of fact.\\nId.\\u2014Bona Fide Transfer in Pursuance of Agreement.\\u2014Where it appears that the husband, while in prosperous circumstances and in the conduct of a business in the state of New York, had agreed with his wife that he would convey to her his California property as soon as he obtained title thereto, and the transfer in question was made in good faith in pursuance of such agreement, for a nominal consideration paid by the wife, and without any knowledge on the part of the wife that the husband had any creditors in California, and at a time when his business in New York was not in an insolvent condition, there is no evidence of fraudulent intent, in the matter of the consideration which would vitiate the transfer, as against a creditor in California, who brought an attachment suit six months after the deed was made and delivered, though prior to its acknowledgment andjrecord.\\nId.\\u2014Nature of Insolvency \\u2014 Means may Exist in Another State.\\u2014 A debtor is insolvent when he is unable to pay his debts from his own means, as they become due; and it is not essential that the means from which the debts are to be paid must exist in this state; nor is the debtor to be considered insolvent merely because he has not means in this state to pay his creditors here, outside of the property transferred to his wife in this state, if, at the time of the transfer, he had sufficient means in another state to pay all of his creditors.\\nId.\\u2014Evidence\\u2014Declarations of Husband after Conveyance.\\u2014Statements made by the husband after the conveyance made by him to his wife, tending to show that the deed was made to avoid the attachment, or to defraud the attaching creditor, cannot be .received as imparting verity, or to overthrow the title of the wife, if any doubt is left in the mind of the court that they truly reflected the situation, when the deed was made.\\nAppeal from an order of the Superior Court of Riverside County denying a new trial. J. S. Royes, Judge.\\nThe facts are stated in the opinion.\\nCollier & Evans, and Francis J. Heney, for Appellant.\\nThe amendment of 1895 to section 3442 of the Civil Code, which, at the time of the trial of this case, provided that the law would conclusively presume fraud from facts such as were proven in this case, should be considered as governing the evidence, and going strictly to the remedy, and is not to be deemed retroactive or unconstitutional. (Himmelman v. Carpenter, 47 Cal. 46; Fales v. Wadsworth, 23 Me. 555; Tulley v. Tranor, 53 Cal. 278; Cooley\\u2019s Constitutional Limitations, 353.) Encumbered property in a foreign state should not be considered in determining the question of solvency as against residents of this state; and the husband, having no other property in this state at the time of transfer to his wife, was in law insolvent. (2 Bigelow on Frauds, 195; Bartholomew v. McKinstry, 6 Allen, 567; Baker v. Lyman, 53 Ga. 339; Elwell v. Walker, 52 Iowa, 256-64; Heath v. Page, 63 Pa. St. 116; 3 Am. Rep. 533; Church v. Chapin, 35 Vt. 223.) The transfer to the wife was without a valuable consideration, and therefore void as against creditors. (Scoggin v. Schloath, 15 Or. 380; Elwell v. Walker, supra.) The conveyance is also void because voluntary. (2 Bigelow on Frauds, 144.)\\nJ. F. Conkey, for Respondent.\\nAn unrecorded deed is good as against a subsequent attachment. (Le Clert v. Oullahan, 52 Cal. 252; Morrow v. Graves, 77 Cal. 218; Plant v. Smythe, 45 Cal. 161; Hoag v. Howard, 55 Cal. 564.) A voluntary conveyance made to a member of the grantor\\u2019s family in order to provide a home for his wife and family, having other property sufficient to pay all his debts, is not fraudulent as to creditors. (Morgan v. Hecker, 74 Cal. 540; Gridley v. Watson, 53 Ill. 186; Carson v. Foley, 1 Iowa, 524; Moore v. Page, 111 U. S. 117; Jones v. Clifton, 101 U. S. 225-31; Cole v. Tyler, 65 N. Y. 73; Albertoli v. Branham, 80 Cal. 631; 13 Am. St. Rep. 200.) A man is not insolvent in law merely for want of means in this state to pay his debts if he have means elsewhere. (Thompson v. Paige, 16 Cal. 77.) The question whether a transfer of property was made with fraudulent intent is one of fact and not of law. (Morgan v. Hecker, supra.) The burden of establishing the fact that this deed was fraudulent rests upon the defendant Cockins. (Ross v. Wellman, 102 Cal. 1; Hussey v. Castle, 41 Cal. 239; Griffith v. Cox, 79 Ky. 562.) Plaintiff took her title and Cook conveyed to her under the law as it stood prior to 1895. Mrs. Cook\\u2019s rights had vested in the land. (Albertoli v. Branham, supra; Mowry v. Heney, 86 Cal. 471.) And it was not competent for the legislature to change those rights by the passage of an ex post facto law. (Sharp v. Blankenship, 59 Cal. 288; Greer v. Blanchar, 40 Cal. 194.) Statutes are not to be so construed as to have a retrospective effect, unless such construction be required in the most explicit terms; the presumption being that they are to operate prospectively and not to impair vested rights. (McCrea v. Craig, 23 Cal. 522-25; Vanderpool v. La Crosse etc. R. R. Co., 44 Wis. 652; Sharp v. Blankenship, supra; Civ. Code, sec. 3.) The agreement of Cook, to have the land deeded to his wife as soon as he got the sheriff\\u2019s deed, in consideration of her letting him dispose of the Auburn house, and her parting with her inchoate right of dower therein, and putting her money into the California lands, having been carried out, takes the deed out of the category of voluntary conveyances, and makes it a conveyance for value. (Hussey v. Castle, supra; Ryan v. Tomlinson, 39 Cal. 639; Cottrell v. Smith, 63 Iowa, 181.)\", \"word_count\": \"6294\", \"char_count\": \"35567\", \"text\": \"Chipman, C.\\nOn February 13, 1894, Caroline M. Cook, now deceased (referred to herein as plaintiff) wife of Joseph A. Cook, filed her verified complaint in the superior court of Riverside county, alleging owner ship of certain land situated therein, and claiming an undivided one-fourth interest in the land, and an ownership of an undivided three-fourths interest in the same land in the defendant, and praying for partition of their several interests. The defendant filed a verified answer denying that the plaintiff was the owner of any interest in said land. For a separate answer to the complaint the defendant alleged:\\nThat defendant and said Joseph A. Cook, on January 31, 1891, became the owners as tenants in common of the land, by virtue of certain legal proceedings, in the proportion, to wit, the defendant an undivided three-fourths interest and the said Joseph A. Cook an undivided one-fourth interest, and that they were such owners in fact at the commencement of the action; that the interest of said Joseph A. Cook was subject to the lien and claim of defendant by virtue of proceedings in attachment commenced by him against the said Joseph A. Cook in the superior court of Los Angeles county; that a writ duly issued October 22, 1892, and was served by levy on the interest of said Joseph A. Cook in said land November 5, 1892; that defendant recovered judgment in said action December 13, 1893, against the said Joseph A. Cook for $1,906.92 and $126.20 costs; that said judgment became a lien on the interest of said Joseph A. Cook in said land on and after November 5, 1892, and has not been paid but is still due,- and that said lien was in full force when this action was begun; that defendant had caused execution to issue on said judgment and to be placed in the hands of the sheriff of Riverside county, and had caused a transcript of the judgment to be filed in the county of Riverside as required by law, and was proceeding to sell said property. Further answering the defendant alleged:\\nThat on January 31, 1891, the said Joseph A. Cook was and continued to be a resident of the state of New York, and was at that time indebted to defendant and continued to be indebted to the date of this action; that the said Joseph A. Cook on January 31, 1891, and prior thereto, was insolvent, and aside from his interest in said property had no assets or property with which to pay defendant's said claim.\\nThat on November 26,1892, there was filed for record in the office of the recorder of San Diego county (from which Riverside county was in part afterward taken) a paper purporting to be a conveyance from said Joseph A. Cook to his wife, Caroline M. Cook, plaintiff in this action; that said conveyance purported to be acknowledged November 17, 1892; that as to defendant it was and is void in that it was without consideration and voluntary; that said conveyance was made with the purpose on the part of said Joseph A. Cook to hinder, delay, and defraud the defendant in the collection of his said claim, and that the said conveyance was accepted and received by the said plaintiff with full knowledge on her part that the same was made with intent to hinder, delay, and defraud the creditors of said Joseph A. Cook, and particularly defendant. That at the date of said pretended conveyance, plaintiff well knew that the said Joseph A. Cook was insolvent; that at the date of said conveyance, for a long time prior thereto, and ever since said date, the said Joseph A. Cook was indebted to defendant in the sum of about $2000. By a supplemental answer defendant avers that since the filing of his answer in the action the execution issued upon the judgment above referred to has been served, the property duly sold, and that more than six months having elapsed since said sale the sheriff of said Riverside county executed his deed to defendant of all the interest of the said Joseph A. Cook in the property described in the complaint. :\\nThe cause was tried by the court without a- jury, and its decision was for the plaintiff; findings of fact and conclusions of law were filed, and an interlocutory decree entered directing partition to be made and appointing three referees for that purpose. A motion for a new trial was overruled, and this appeal is from the order of the court denying new trial.\\nCertain facts are not disputed, to wit: That in January, 1891, the property in question was acquired through judicial proceedings\\u2014by Joseph A. Cook an undivided one-fourth, and by defendant an undivided three-fourths interest as tenants in common; that subsequently by deed dated June 1, 1891, said Joseph A. Cook conveyed his interest in the land to his wife, the plaintiff; that this deed was acknowledged November 17, 1892, and recorded November 26, 1892; that at the date of the deed said Joseph A. Cook was indebted to defendant about the sum of $2000; that in 1891, and prior thereto, and until about 1894 or 1895, plaintiff and her husband resided in the state of New York; that, about as stated in the answer, defendant became the owner in 1895 of whatever interest Joseph A. Cook had in theland through proceedings in attachment by which levy was made on said interest November 5,1892.\\n1. The ninth finding attacked by defendant is as follows: \\\"That on the first day of June, 1891, said Joseph A. Cook, being the owner in fee of an undivided one-fourth interest in the premises described in the complaint, and of all the appurtenances thereto, by deed dated, executed, and delivered that day, duly transferred and conveyed all of his right, title, and interest in said premises to the plaintiff in this action, who thereupon became, ever since has been, and still is the owner of said Joseph A. Cook's interest in said premises.\\\"\\nThe objection to this finding is that it is against the evidence, for that the evidence shows without conflict: 1. That the conveyance so made June 1, 1891, by Joseph A. Cook to his wife, Caroline A. Cook, was fraudulent and void as to defendant; 2. That at said date, and before, defendant was, and ever since he has been, an existing creditor of said Joseph A. Cook; 3. That at said date said Joseph A. Cook had no other property in the state of California than the property in question, and that the only other property he owned was in the state of New York, encumbered to the extent of $3,000; 4. That the indebtedness of said Joseph A. Cook at the date of said conveyance arose out of a transaction in the state of California, at which time defendant resided and still resides in the state of California, and that the said Joseph A. Cook, until a short time before the commencement of this action, resided in the state of New York; 5. That said conveyance was voluntary and without valuable consideration.\\nThe appellant does not urge in his brief that actual fraud was shown; the alleged fraud upon which he apparently relies is constructive, and results, if at all, from his view of what is a just application of the facts to what he deems to be a proper application of section 3442 of the Civil Code to the case. When this action was brought this section read as follows: \\\"In all cases arising under section 1227, or under the provision of this title, except as otherwise provided in section 3440) the question of fraudulent intent is one of fact, and not of law; nor can any transfer or change be adjudged fraudulent solely on the ground that it was not made for a valuable consideration.\\\"\\nBefore the action was tried, and nearly four years after the transfer, the legislature amended this section by adding the following:' \\\"Provided, however, that any transfer or incumbrance of property, made or given voluntarily or without a valuable consideration, by a party while insolvent, or in contemplation of insolvency, shall be fraudulent and void as to existing creditors.\\\"\\nAppellant urges with much earnestness that section 3442 of the Civil Code as thus amended should be considered in determining the rights of the parties at the time of the trial; that the amendment merely establishes a rule of evidence, and goes strictly to the remedy and in no sense to the right; that no retroactive effect is necessary to be given so as to make it obnoxious to the rule relating to retroactive legislation, and that, thus considered, a conclusive presumption of intent to defraud must flow from the facts in this case.\\nOn the other hand, the plaintiff contends that this section is something more than a rule of evidence\\u2014that it is a rule of property as well, and cannot as amended destroy vested property rights by being given retroactive effect.\\nIt seems to me that this latter is the true view. The transfer was dated June 1,1891. The husband testified that it was delivered the same day to the wife. She testified that she thought it was delivered in the following September or October. The trial court found that the deed was executed and delivered on June 1, 1891. As there was no other testimony on this point, we are not at liberty to say that the court erred in accepting that of the husband. Without now considering the effect of the change in the statute upon this case, appellant's point deserves more than dogmatic negation.\\nThe section as it stood at the time of the transfer made the question of fraudulent intent one of fact, and not of law, in all cases arising under the title of the code in which the section\\\" occurs, and this case arises under that title. It was incumbent upon defendant to allege and prove the fraudulent intent. Under the seetion before the amendment, this court has frequently held that a voluntary conveyance is not, prima facie, fraudulent, and a fraudulent intent is not to be arrived at as a presumption of law. (Emmons v. Barton, 109 Cal. 662.)\\nThe section also originally provided that a transfer could not be adjudged fraudulent solely on the ground that it was not made for a valuable consideration.\\nIn Emmons v. Barton, supra, the conveyance was a gift from husband to wife, and it was there held that such conveyance \\\" is valid as against creditors, although the consideration was love and affection alone, unless it was made with intent to defraud creditors.....But the intent is a question of fact, and must be averred and proved. A voluntary conveyance is not, prima facie, fraudulent, and a fraudulent intent is not to be arrived at as a presumption of law. Therefore, in a case like the one at bar, there must be evidence upon which the jury or court can base a finding of the fact that the intent of the grantor at the time of the grant was to defraud his creditors.....Pronounced insolvency at the time of the grant would no doubt be a strong circumstance tending to show fraudulent intent, and, in the absence of other controlling facts, it would be sufficient to justify a finding of such intent.\\\"\\nBy the amended act a voluntary conveyance, or a conveyance without a valuable consideration, is declared to be fraudulent and void as to existing creditors if the grantor is insolvent at the time of the grant, or in contemplation of insolvency. The intent is no longer in such case a question of fact to be alleged and proved\\u2014 indeed there need be no intent alleged or proved. The law declares the conveyance to be fraudulent and void, and produces the same result without proof of actual fraud being shown.\\nUnder the former law insolvency was only a circumstance tending to show fraudulent intent: and while insolvency, if \\\"pronounced at the time of the grant, would be a strong circumstance tending to show fraudulent intent,\\\" there might be \\\"other controlling facts\\\" which would relieve the act from any fraudulent intent, and, in such case, the grant would stand. But not so now. No other conceivable facts would control when the fact of insolvency is shown and the conveyance is voluntary, or without valuable consideration. Section 3439, Civil Code, under which this case arises, provides: \\\" Every transfer of property . made . with intent to delay or defraud any creditor . is void against all creditors of the debtor .\\\"; but section 3442 formerly said that this fraudulent intent is in all cases a question of fact and not of law. Now, however, the fraudulent intent in certain cases is a question of law and not of fact.\\nWhen Joseph A. Cook conveyed to his wife, the law said that the deed should not be adjudged fraudulent solely on the ground that it was not made for a valuable consideration. There must be intent to defraud, and insolvency did not alone and of necessity establish that intent. As the law now is, a deed without valuable consideration by a party insolvent is, as to existing creditors, fraudulent and void.\\nUnder the old law the plaintiff's deed might have been good and the title pass to her, and if so can that title be disturbed by. any law subsequently passed, whether it be a new rule of evidence relating to a remedy, or some other form of law more directly rendering the title void ? If plaintiff owned the land in 1891, whether she got it by gift or however else, can the legislature subsequently make a new rule of evidence in any case where her title may be drawn in question, that will have the effect to destroy the title with which she had been previously invested by law? It seems to me that the proposition of appellant has neither justice, reason, nor authority to support it.\\nPrior to April 1, 1878, the Code of Civil Procedure, section 325,laid down certain elements constituting adverse possession where claim of title is claimed, not founded on a written instrument, etc. On the day above named a new element was introduced by the legislature, to wit, that the claimant, his predecessors and grantors must have paid all the taxes levied and assessed upon the land. This court has frequently held that this new element of adverse possession had no retroactive effect and could in nowise affect a title that h\\u00e1d ripened under the former law. (Sharp v. Blankenship, 59 Cal. 288, and cases there cited.) Mo part of the code is retroactive unless expressly so declared. (Code Civ. Proc., sec. 3.) The principle decided in Sharp v. Blankenship, supra, seems to me to be so closely analogous to the question here presented as to make it decisive and conclusive.\\nIn view of the facts in this case, under the law in force when the conveyance was made, did title pass to plaintiff, beyond the reach of defendant, as a creditor of the grantor? Was the transfer by said Cook made with intent to defraud defendant?\\nAppellant's brief is constructed upon the theory that the law of the case is found in section 3442 of the Civil Code, as amended in 1895, and we therefore have not the full benefit of counsel's views upon the case as judged by the section before amended. He claims under the amended section alone. I will endeavor, however, to meet every possible question presented by the evidence.\\nIt is urged that the deed was not delivered on the day of its date as found by the court. The husband testified that he delivered the deed to defendant on the day of its date, June 1, 1891; she testified that she thought it was not delivered until the following September or October. The trial court took the date of delivery given by the husband, and as there was no evidence to dispute this fact except that of the wife, and she differing only as to the date, but not as to the fact of delivery, I think the finding should stand. Besides, the delivery assumed as of date September or October, 1891, would not change the result. The attachment was not served until November 5, 1892.\\nThe facts that may be urged by appellant as badges of fraud are: 1. That the deed was not acknowledged until November 17,1892, nor recorded until November 26, 1892, twenty-one days after the writ of attachment was levied. 2. That defendant was at the time an existing creditor of the grantor. 3. That the deed was without valuable consideration. 4. That the grantor was insolvent when he made the deed.\\nAs to the acknowledgment and recordation of the deed, there is no evidence as to whether said Joseph A. Cook had been served with summons in the attachment suit before the deed was acknowledged, nor is there any evidence that he had been served with summons or knew of the suit before the deed was recorded, nor that the acknowledgment or recordation of the deed was the result of the suit. While an inference might have been otherwise drawn from the facts in evidence, we cannot say that the court erred in not drawing it. But there is no evidence tending to show that plaintiff had at any time prior to bringing the suit nor for long after, any knowledge whatever of the suit or the circumstances out of which it arose.\\nIt does appear beyond dispute that defendant was a creditor of said Joseph A. Cook when the deed was made. This indebtedness had its origin in certain shares of the Artesian Land and Water Company, a corporation, owned by said Joseph A. Cook. Defendant was a creditor of the corporation, and sued it by foreclosure proceeding in 1888, and obtained judgment for a deficiency in 1890. It was upon the proportion of this liability due from said Cook as a stockholder upon which defendant afterward attached the land in question.\\nAs to the consideration the deed reads: \\\"The party of the first part, in consideration of the sum of one dollar and other consideration dollars ($1.00) [sic], to him in hand duly paid, has sold to party of the second part, her heirs,\\\" etc.\\nBoth husband and wife testified that she paid him one dollar at the delivery of the deed. The wife also testified that her husband owned a certain house in Auburn, New York, the proceeds of which her husband had always said she should have, and that he had realized $5,000 out of this property and put in the California property (the subject of this litigation), and that when he got 1ns title to the California property he would deed it to her. He testified that long before the date of the deed (June 1, 1891) he had told her he would convey the California property to her as soon as he got his title. The Auburn property stood in the name of the husband.\\nBut if these facts could be held not to import a valuable consideration, the law declared that a transfer could not be adjudged fraudulent solely on the ground that it was not made for a valuable consideration. The circumstances, therefore, relating to the consideration can only figure in determining whether they tended to show fraud.\\nAt the time of the transfer, plaintiff knew nothing of the indebtedness of her husband existing in California; she did not know of the attachment until long after it was commenced, and after the deed was recorded and this suit was brought; no evidence points to her knowledge of her husband's insolvency or belief that he was insolvent, or of facts that would put a prudent person, having an interest, upon inquiry. So far as the evidence shows, she was an innocent grantee without notice of any legal infirmity in the title or in the grantor.\\nWhether the transfer was or was not without valuable consideration, as has been said, can only be regarded as indicia of fraud. It was held in Ryan v. Tomlinson, 39 Cal. 639, \\\" that a verbal agreement for an exchange of real property, which has been carried into effect by the execution of proper conveyances in pursuance of the agreement, is not void under the statute of frauds.\\\"\\nIn Robins v. Hope, 57 Cal. 493, it was said: \\\"Where an adequate motive for making a deed is apparent, that circumstance [want of consideration] does not necessarily militate against the bona fides of the transaction.\\\" When the deed was made to plaintiff both the husband and wife understood that it was to carry out the previous agreement that plaintiff should become the owner of the California property, and I think that, under the circumstances, there was an adequate motive for making the deed. The husband, as we shall see later on, was in good circumstances financially, and there was nothing in their surroundings to suggest insolvency at that time, or danger of insolvency. And it was competent for plaintiff to show other consideration than that mentioned in the deed. (Carty v. Connolly, 91 Cal. 15.)\\nI can find no evidence of fraudulent intent on the part of grantor or grantee in the matter of consideration. But it is urged that the husband was insolvent when he conveyed to his wife, and that the conveyance was voluntary and therefore void. Appellant's position is a non sequitur because it omits the essential additional element of fraudulent intent. Since the very elaborate consideration of this question by Mr. Justice Garoutte in Bull v. Bray, 89 Cal. 286 (many times since approved), there has been no doubt as to the law of this state, and it is that \\\" in an action by a judgment creditor to set aside deeds of gift made by the judgment debtor to his wife as being void as against prior creditors, it is necessary specifically to find that the deeds were made with a fraudulent intent in order to sustain a judgment for the \\u00bfdaintiff, and such findings cannot be inferred from findings that the deeds were without consideration, and that the judgment debtor was insolvent when he made them, though without full knowledge of his actual financial condition, and that by the making of them he hindered, delayed, and defrauded the plaintiff in the collection of his debt.\\\"\\nIn a concurring opinion Mr. Chief Justice Beatty said: \\\"It does not seem possible to avoid the conclusion that the law of California on the subject of voluntary conveyances by insolvent debtors is such, as in the opinion of Justice Garoutte, it is declared to be. But I cannot refrain from expressing the belief that it is most unfortunate that the court should be forced to that conclusion. When an insolvent debtor makes a gift of his property to a donee of his own selection, there can be but one result so far as creditors are concerned; they are necessarily deprived of what is rightfully theirs, and the law ought to pronounce such a transaction ipso facto fraudulent and void as to them.....It ought to be changed, but the legislature alone has the power to change it.\\\"\\nAnd the legislature did change it (probably as the outgrowth of this decision), but the defendant cannot avail himself, as we have seen, of the changed law.\\n2. But appellant says that the husband was insolvent, and in Emmons v. Barton, supra, Mr. Justice McFarland for the court, said: \\\" Pronounced insolvency at the time of the grant would, no doubt, be a strong circumstance tending to show fraudulent intent, and, in the absence of other controlling facts, it would be sufficient to justify a finding of such intent.\\\"\\nWas insolvency proved, and was it of such a pronounced character as to warrant the inference of fraudulent intent?\\nAppellant insists that the evidence shows that the said Cook was insolvent when he made the transfer to-his wife. The evidence of Joseph A. Cook is uncontradicted, and tended to show that he owned property in the state of New York at the time of the transfer in question (June 1, 1891) of the value of $36,000 on which there was a mortgage lien of $3,000 and no more; i hat he continued the ownership until 1893, when the mortgage debt was paid and the property sold by said Cook to a company then formed, and the said Cook accepted stock in the company for his interest, valued at '$30,000. A member of the company was to put in $25,000 and the property (salt works) was to be enlarged. Eight thousand dollars of the company bonds were sold, and $8,000 more used by a director of the company, without its knowledge, as security for the loan of $6,000 he had made of a friend, making $14,000 of bonded debt. These bonds were secured by a deed of trust or mortgage on all the corporate property. The mortgage or deed of trust was subsequently foreclosed for this bonded debt, and all the property sold under foreclosure, and the said Cook thus lost all his interest in the property. This took place, as testified to by said Cook, sometime in 1894. The trial court evidently regarded this as sufficient to show that the said Cook was not insolvent in 1891 when he made the transfer to plaintiff, and we cannot say that the court erred in this conclusion. But it was urged by appellant at the trial, and is urged here, that the ownership of property in New York state at the time of the transfer, or the solvency of the grantor in New York at that time, is not to be considered if, with respect to his prop erty in the state of California, and his indebtedness in the latter state at the time of the transfer, he was not solvent. The said Cook is not shown to have had any property in this state at the time of his indebtedness to defendant, other than his interest in the property mentioned in the complaint, and the value of this interest nowhere appears. It was hid in at the sale for the debt. The question is presented whether a person residing in another state, and being indebted in this state to an amount equal to, or in excess of, the value of his property owned in this state, but who has ample property in the state of his residence to meet all his obligations, must be regarded as insolvent, and that a voluntary transfer of his property in this state, or a transfer without a valuable consideration, is fraudulent and void as to creditors at the time of the transfer.\\nWhen is a person insolvent under our law? The act of 1880 in force when the transfer in question was made does not define what shall constitute insolvency.\\nIn Washburn v. Huntington, 78 Cal. 573, this court said that it saw no reason why the definition of insolvency, as given in section 3450 of the Civil Code, is not correct under the act of 1880. The section reads: \\\"A debtor is insolvent within the meaning of this title [the title is\\u2014Assignments for the Benefit of Creditors] when he is unable to pay his debts from his own means, as they become due.\\nThere is no suggestion here that the \\\"means\\\" from which the debts are to be paid must exist in this state. In the case of Sacry v. Lobree, 84 Cal. 41, the definition of insolvency was very fully given\\u2014perhaps more fully than elsewhere to be found in our reports, but it did not involve the question here.\\nIn Thompson v. Paige, 16 Cal. 77, it was held that an instruction \\\" That a man who is insolvent for the want of means to pay his debts in this state is, in law, insolvent, without reference to any property in another state\\\" \\u2014was too broadly stated. The question is too import ant a one to decide in a case where it is not necessarily involved.\\nIn the case here insolvency is only an evidence of fraud, and while it might in some cases be conclusive, if property elsewhere than in this state must be excluded, I do not think it so in this case in any view. The evidence shows the financial condition of the husband when he made the deed, and has already been referred to. There is no evidence tending to show that, in 1891, either the husband or wife had any doubt of his solvency; there is nothing to show that the deed was made because of any financial embarrassment of the husband, present or prospective. At that time the liability of the husband to defendant had been ascertained, but there is no evidence that the husband knew of its existence. The attachment suit was brought against the husband sixteen months after the deed was made, and while the husband was operating his salt works in New York.\\n3. It is claimed that the husband made certain statements to defendant in 1893, tending to show that the deed was made to avoid the attachment or defraud defendant. The statements are denied by the husband as a witness, but, even if he made them, 1 do 'not think he could be heard to impeach his title made two years before; and, to receive such statement as importing verity \\\"and resulting in the overthrow of plaintiff's title, there should be no doubt left in the mind of the court that they truly reflected the situation when the deed was made.\\nThe court below found no evidence of fraud in the transaction; and, if the court erred in holding that the said Cook was not insolvent, I do not think that the technical insolvency shown, on the theory of insolvency advanced by appellant, was such as to evidence fraud.\\nMy conclusion, therefore, is that there was no reversible error in the interlocutory decree, and it is recommended that the cause be remanded with directions to proceed to partition the property in accordance with the findings and judgment of the court below.\\nBelcher, C., and Searls, C., concurred.\\nFor the reasons given in the foregoing opinion the order appealed from is affirmed, with directions to proceed to partition the property in accordance with the findings and judgment.\\nMcFarland, J., Temple, J., Henshaw, J.\\nHearing in Bank denied.\"}"

cal/1952162.json

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+"{\"id\": \"1952162\", \"name\": \"CALIFORNIA PACIFIC RAILROAD COMPANY v. CENTRAL PACIFIC RAILROAD COMPANY OF CALIFORNIA et al.\", \"name_abbreviation\": \"California Pacific Railroad v. Central Pacific Railroad\", \"decision_date\": \"1874\", \"docket_number\": \"No. 2,328\", \"first_page\": \"528\", \"last_page\": \"531\", \"citations\": \"47 Cal. 528\", \"volume\": \"47\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T23:15:59.288756+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CALIFORNIA PACIFIC RAILROAD COMPANY v. CENTRAL PACIFIC RAILROAD COMPANY OF CALIFORNIA et al.\", \"head_matter\": \"[No. 2,328.]\\nCALIFORNIA PACIFIC RAILROAD COMPANY v. CENTRAL PACIFIC RAILROAD COMPANY OF CALIFORNIA et al.\\nWhen Cebtiobabi Lies.\\u2014When, in a proceeding for the condemnation of land, the District Court makes an order which it has no jurisdiction to make in relation to the use of the property sought to be condemned, and there is no appeal from the order, certiorari is the proper remedy, in order to have the order annulled before the-damages it purports to authorize have been sustained.\\nIdem.\\u2014When a trespass is about to be committed, by authority of an order of Court which is void, the fact that the trespass may be enjoined in equity does not prevent the order from being reviewed on certiorari, for the mere fact that the order is void will not alone authorize an injunction.\\nJurisdiction oi? Goubt in Condemking Land. In proceedings for the condemnation of property for a railroad, under the Act of 1861 as amended in 1863, the District Court has no jurisdiction to make an order authorizing the petitioner to take possession of ahd use the land sought to be condemned during the pendency of the proceedings for condemnation, for said Act does not provide any compensation to the owner for such taking, and is, therefore, in so far as it authorizes it, unconstitutional.\\nCertiorari from the Supreme Court to the District Court of the Sixth Judicial District, County of Sacramento.\\nThe plaintiff was a corporation, organized in January, 1865, to construct a railroad from Vallejo to Sacramento and Marysville. The railroad passed up the west side of the Sacramento river to a point opposite the city of Sacramento (which is on the east bank of the river) and then crossed the river and entered the city.\\nThe defendant was also a railroad corporation operating a railroad from the territory of Utah, west to Sacramento, and thence to San Francisco, passing through the city of Sacramento on the east bank of the Sacramento river. The defendant had wharves on the east bank of the Sacramento river. The plaintiff desired to condemn land of the defendant in Sacramento, for depot purposes, and it was necessary for it to go across a wharf and the tracks of the defendant in order to enter the city, and this right it sought also to condemn. The petition was filed October 14th, 1869. The Court made an order that upon filing a bond in the sum of $20,000, \\u201cthe petitioner, by its agents, officers and employees, is authorized to commence on the outer wharf line of the Central Pacific Bailroad Company of California, where the same is intersected by petitioner\\u2019s track line across the Sacramento river, and to remove so much of the said wharf structure and tracks thereon, not exceeding forty (40) feet in width, as shall enable it to reach with its bridge and track, the site for the abutment of its railroad bridge, and then take possession of, and use for the purpose of constructing its abutment and bridge, a piece of ground, not exceeding fiiteen (15) by forty (40) feet, and from said abutment continue its track or bridge to the west line of First Street, of said city of Sacramento, not occupying therewith more than thirty-five (35) feet in width, and crossing any intervening tracks of the Central Pacific Bailroad Company of California, and cutting and adjusting the rails thereof to those of the petitioner. And said petitioner, by its officers, agents, or employees, is authorized to enter upon and remove any houses, buildings, or structures, interfering with, or in the way of said petitioner, between the outer wharf line, aforesaid, and the said west line of First Street; and from the said west line of First Street, the petitioner, by its agents, officers, or employees, is authorized to extend its track across said First Street, to the eastern side thereof, and to cross the rails and tracks of the said Central Pacific Eailroad Company of California, situate in said street and crossing.\\nS. W. Sanderson, for the Central Pacific Eailroad Company.\\nGeorge Cadwalader, for the Eespondent.\", \"word_count\": \"1125\", \"char_count\": \"6629\", \"text\": \"By the Court, McKinstry, J.:\\nOn the presentation of a petition by the corporation plaintiff for the condemnation of certain lands of the defendant, the District Court ordered that (upon the filing of the bond mentioned in the thirty-fourth section of the railroad Act of 1861, as amended April 27th, 1863), the petitioner \\\"have the right and privilege\\\" to tear down a wharf of the defendant, the Central Pacific Company, to lay a track through its premises, removing any buildings or structures in the way, and to extend its track across the tracks of- said defendant; and also to take possession of all the lands sought to be condemned, and to use the same during the pendency of the proceedings.\\nIt is admitted by counsel that there was no appeal from this order. The District Court had no jurisdiction to make such an order. (Davis v. San Lorenzo Railroad Company, ante, 517.) It seems clear that the defendant had no plain, speedy, and adequate remedy, except by certiorari. An action for a trespass, done under color of the order, might, perhaps, give compensation for the actual damages sustained, but the defendant has the right to have the order annulled, before the damages it purports to authorize have been committed. He is not bound to wait until the injury is done, but may demand relief by way of protection against injuries contemplated by the order itself. The same language was employed in the chapter of the Practice Act which treated of the writ of mandate. But this Court held that, to supersede the remedy by mandamus, the partymust not only have a specific, adequate legal remedy, but one competent to afford relief upon the very subject-matter of his application, and one which is equally convenient, beneficial, and effective as the proceeding by mandamus. (Fremont v. Crippen, 10 Cal. 211; Babcock v. Goodrich, ante, 488.) Assuming, for the purpose of the argument (what we do not decide), that, if a party has an equally effectual equitable remedy, he cannot resort to certiorari, a Court of Equity would not enjoin trespasses threatened under such an order, simply on the ground that the order is void. (Chipman v. Bowman, 14 Cal. 157; Logan v. Hillegass, 16 Cal. 200.) In such case the complainant would have to allege and prove peculiar circumstances, of the same nature as those which are necessary to invoke the interposition of equity to restrain trespasses threatened by persons without' right or color of right.\\nThe order of the District. Court must be declared to be, and the same is adjudged, null and void.\\nNeither Mr. Justice Bhodes, nor Mr. Justice Crockett, expressed an opinion.\"}"

cal/1989944.json

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+"{\"id\": \"1989944\", \"name\": \"THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF PLUMAS COUNTY, Respondent; SAMUEL R. QUINN, JR., et al., Real Parties in Interest\", \"name_abbreviation\": \"People v. Superior Court\", \"decision_date\": \"1978-08-07\", \"docket_number\": \"Civ. No. 17718\", \"first_page\": \"609\", \"last_page\": \"618\", \"citations\": \"83 Cal. App. 3d 609\", \"volume\": \"83\", \"reporter\": \"California Appellate Reports, Third Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T18:41:29.058356+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF PLUMAS COUNTY, Respondent; SAMUEL R. QUINN, JR., et al., Real Parties in Interest.\", \"head_matter\": \"[Civ. No. 17718.\\nThird Dist.\\nAug. 7, 1978.]\\nTHE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF PLUMAS COUNTY, Respondent; SAMUEL R. QUINN, JR., et al., Real Parties in Interest.\\nCounsel\\nEvelle J. Younger, Attorney General, Garrick W. Chock and Edmund D. McMurray, Deputy Attorneys General, for Petitioner.\\nNo appearance for Respondent.\\nRobert Eli, under appointments by the Court of Appeal, for Real Parties in Interest.\", \"word_count\": \"3002\", \"char_count\": \"18079\", \"text\": \"Opinion\\nPUGLIA, P. J.\\nThe People petition for relief from the order of the trial court suppressing evidence in a criminal prosecution in which the real parties in interest, Samuel and Diana Quinn, are defendants. The questions presented in this proceeding concern the legality of the arrests of defendants and one Rodney Lee. Extraordinary relief is the appropriate remedy for the People in these circumstances (Pen. Code, \\u00a7 1538.5, subd. (o)). We have issued an alternative writ and stayed further proceedings in the trial court pending our further order.\\nShortly after noon on January 25, 1978, a 1974 model Porsche was stolen in Oakland. In Quincy, at approximately 10:50 the following morning, Deputy Sheriff Gamberg, on patrol in a sheriff's car, observed the Porsche parked behind a storage shed in back of the Fun and Games Arcade (Arcade). The Arcade building houses a commercial entertainment establishment and separate living quarters for the proprietors who at the time of these events were the defendants Quinn.\\nThe Porsche was substantially concealed from view from the street. Gamberg, a veteran officer, had never before seen this vehicle. A citizen informant, the former owner of the local bus station, told Gamberg no one had been at the Arcade the previous afternoon and evening, nor had the Porsche been there the previous day. There were two puppies and some clothing in the car. In answer to his inquiry, Gamberg was informed by the radio dispatcher that the Porsche had been stolen the day before in Oakland. Gamberg placed the Porsche under surveillance. Ten to fifteen minutes elapsed and Rodney Lee walked up to the driver's side of the car and reached down as if to open the door.\\nGamberg and Lee had become acquainted through prior official contacts. Within the last two weeks, Gamberg had arrested Lee for automobile burglary. One week previously, Gamberg had occasion to stop Lee and he was armed with an automatic 12-gauge shotgun. On an earlier occasion, when Gamberg attempted to serve an arrest warrant on Lee in a residence, Lee fought the officer, ran into another room and grabbed a 22-caliber magnum rifle before he was caught and disarmed. In addition, Gamberg was aware of citizen complaints of persons firing guns and carrying loaded firearms on the Arcade premises. Gamberg knew that Lee had been staying at the Arcade.\\nGamberg suspected that Lee was involved in the theft of the Porsche and wanted to talk to him about it. He approached unobserved on foot, and when about 15 feet from Lee stated, \\\"Rodney, I want to talk to you.\\\" Lee looked directly at Gamberg, turned and ran toward the Arcade; Gamberg pursued, shouting for him to halt. At this point Gamberg intended to arrest Lee for theft of the Porsche. Lee entered the kitchen portion of the private living area of the Arcade building and slammed the door in Gamberg's face. As he entered, Lee shouted, \\\"It's the cops.\\\"\\nGamberg, in uniform, caught the door as it slammed shut and pulled it open. He was surprised to see the two defendants with Lee in the kitchen and adjoining bedroom. Concerned for his own safety as well as that Lee might escape, Gamberg withdrew from \\\"the line of fire,\\\" drew his service revolver, and ordered the occupants to freeze and come out with their hands in plain sight. He received no response. Instead there was commotion and scrambling around in the bedroom, to which Diana Quinn appeared to be attempting to block Gamberg's view. At this point, Gamberg lost sight of Lee.\\nGamberg's concern that Lee might avoid apprehension arose from his familiarity with the Arcade building and his knowledge that there were many doors and windows through which he might escape. His fear for his own safety was stimulated by his concern, based on past experience with Lee, that Lee (or one of the defendants) might obtain a weapon within the building and use it against him. As Gamberg himself explained, \\\"I had occasion before with Mr. Lee, I had to take a firearm away from him the last time he ran into a building, and I was just a little bit cautious as though it would happen again.\\\"\\nAt this point Gamberg called for assistance on his walkie-talkie. Within moments Sergeant Stoy arrived. After repeated orders to vacate the premises, Diana Quinn and then Samuel Quinn exited the building and were arrested by Sergeant Stoy for theft of the Porsche. A search of Samuel Quinn's person produced a key that fit the ignition of the Porsche.\\nAt the time of the Quinn arrests, Sergeant Stoy knew from hearing the radio dispatcher's report to Gamberg that the Porsche had been stolen in Oakland the day before; he knew from monitoring one of Gamberg's radio transmissions that he had chased \\\"suspects\\\" from the area of the Porsche into the building; he learned from Gamberg that neither the Porsche nor the occupants of the Arcade had been there the night before but that the car and occupants showed up that morning; he knew the car was parked at the Arcade premises and there were two puppies inside, indicating to him that the people who had taken the car were in the immediate area; he observed Gamberg with pistol drawn order the occupants out of the Arcade building; he also knew the Quinns resisted orders to vacate the building; he suspected the occupants of the Arcade were involved in the theft of the Porsche.\\nImmediately after the removal and arrest of the Quinns, Gamberg, armed with Stoy's shotgun, entered the Arcade to search for and arrest Rodney Lee. In plain sight in the bedroom Gamberg observed various items of apparent contraband, including pills, drug injection paraphernalia, and a glove whose mate he had observed in the Porsche. Leaving these items where he found them, Gamberg proceeded to the commercial area of the Arcade where he found Lee and arrested him for auto theft and removed him in custody from the building. Gamberg then returned directly to the bedroom and retrieved the evidence he had earlier observed. Nothing else was taken and further search was deferred until a search warrant was obtained. Other items of contraband and evidence tending to connect defendants with the stolen car were recovered under the search warrant.\\nNo more than 10 to 15 minutes elapsed between Gamberg's initial encounter with Lee at the stolen automobile and the seizure of the items in the bedroom.\\nIn the superior court defendants are each charged with unlawful taking of an automobile (Veh. Code, \\u00a7 10851) and possession for sale of controlled substances (Health & Saf. Code, \\u00a7 11351). In addition, defendant Samuel Quinn is charged with possession of a concealable firearm by a convicted felon (Pen. Code, \\u00a7 12021) and unauthorized alteration of identifying marks on a firearm (Pen. Code, \\u00a7 12090).\\nIn the suppression hearing in the trial court, defendants argued that Gamberg's entry into the Arcade to arrest Lee was illegal because (1) no exigent circumstances existed to justify the warrantless arrest; and (2) Gamberg failed without excuse to comply with the knock-notice requirement of Penal Code section 844. The trial court granted the motions to suppress. We shall first determine in the context of the factual background set out above whether defendants' trial court contentions have merit.\\nWhen Deputy Gamberg first observed Lee at the stolen Porsche, he sought to detain and question him about the vehicle, suspecting that Lee was somehow involved with its theft. He knew the Porsche had been stolen the previous day, had been brought to its present location shortly before, and that whoever had brought it there very likely remained in the near vicinity; the automobile was parked on the premises of the Arcade and was largely screened from public view by the storage shed; Lee had been staying at the Arcade and was personally known to Gamberg through his previous brushes with the law; when Lee approached the vehicle as if to open the door, Gamberg's suspicion that he was somehow involved with the theft of the vehicle was rationally based and he had no reasonable alternative but to question Lee about it. (People v. Harris (1975) 15 Cal.3d 384, 388-389 [124 Cal.Rptr. 536, 540 P.2d 668]; People v. Moreno (1977) 67 Cal.App.3d 962, 966-969 [134 Cal.Rptr. 322], hg. den. May 5, 1977.)\\nThe detention of one suspected of criminal activity is justified by a less demanding standard than is required to justify an arrest. However, there is no mechanical formula of general applicability by which to determine precisely when a rational suspicion of criminal activity may by the accretion of available information reasonably ripen into probable cause to arrest. The answer depends upon all the circumstances, and each set of circumstances is unique, Given the information known to Gamberg, he was justified in entertaining a healthy suspicion of Lee's involvement with the theft of the Porsche. When he attempted to question Lee at the automobile and Lee, who knew Gamberg from past contacts, turned tail and ran toward the Arcade, Gamberg's subjective belief that he then had legally sufficient cause to arrest Lee for auto theft was objectively validated.\\nGiven Lee's flight, Gamberg had a choice of two lawful alternatives: to attempt to arrest Lee forthwith or to withdraw, secure a warrant and hope that the delay would not allow Lee to evade arrest. Given the seriousness of the offense and his duty to enforce the law, it was inevitable that Gamberg would pursue the first alternative. Because Lee disregarded Gamberg's order to halt, Gamberg had no reasonable choice but to pursue him wherever he went to effect the arrest. Where Lee went, of course, was into the Arcade, seeking sanctuary in the residential quarters. Gamberg first attempted to arrest Lee in a public place; Lee's flight into defendants' residence therefore could not thwart an otherwise lawful arrest. (United States v. Santana (1976) 427 U.S. 38, 43 [49 L.Ed.2d 300, 305, 96 S.Ct. 2406]; People v. Mack (1977) 66 Cal.App.3d 839, 853 [136 Cal.Rptr. 283].) As in the Santana and Mack cases, this is a true case of hot pursuit; immediate apprehension and arrest were necessary to forestall the imminent escape of the suspect (People v. Ramey (1976) 16 Cal.3d 263, 276 [127 Cal.Rptr. 629, 545 P.2d 1333].)\\nFurthermore, under these circumstances Gamberg was excused from literal compliance with Penal Code section 844. He was in uniform; moreover he was known to Lee as a peace officer; under the circumstances, Gamberg's purpose in entering the residence was most certainly known to Lee whose conduct rendered futile any demand for admittance. (People v. Mack, supra, 66 Cal.App.3d at p. 854.)\\nWhen Gamberg opened the door through which Lee had just fled, he encountered a situation which reasonably appeared to threaten his safety. His awareness from past experience of Lee's penchant for arming himself contributed to his apprehension, which was further heightened by the unanticipated presence of the defendants, apparent allies of Lee, who refused to respond to orders of Gamberg reasonably calculated to neutralize the threat they posed to his safety. Gamberg was under no duty to concede the first and perhaps only shot to his adversaries before he could act to insure his own safety.\\nWith the assistance of Sergeant Stoy, the defendants Quinn were removed from the Arcade and arrested for auto theft. The arrests were lawful. The presence of the recently stolen Porsche concealed from public view on the Quinns' property, its arrival coincident with the return of the Quinns, the indications that the thief or thieves were nearby, the manifest involvement of Lee who had been living with defendants at the Arcade and his headlong flight into their residence seeking sanctuary and alerting defendants to the presence of \\\"the cops,\\\" the resistance of the Quinns to Gamberg's lawful orders and their apparent efforts to aid Lee's escape, all taken together, constitute probable cause to arrest them for auto theft.\\nGamberg's entry into the Arcade immediately followed the removal therefrom of the Quinns and the neutralization of the threat they posed to the officers. Gamberg's observation of contraband in the bedroom occurred as a result of his search there for Lee; he observed what was in plain view from a position where he had a lawful right to be. Gamberg obviously had the right to bag, tag and seize the evidence then and there. That he did not do so no doubt can be ascribed to his primaiy concern with the apprehension of Lee whom he believed still to be within the building and who may well by then have armed himself. Having arrested Lee and removed him from the building, Gamberg did not trench upon any constitutionally protected interest by returning for the single purpose of retrieving the items of contraband he had observed moments before in the bedroom but had not then been in a position to seize.\\nWe conclude that the entry into the Arcade and the observation in plain view therein of contraband and the arrests of the defendants and of Lee were lawful. Accordingly, the search warrant which was based on the information set out hereinabove was also valid. We further conclude that on the facts stated hereinabove the defendants' trial court challenges to the validity of the various searches were without legal merit.\\nThese conclusions do not resolve this proceeding however. In reviewing a ruling on a suppression motion we are bound to accept only those facts in the record and the inferences reasonably to be drawn therefrom which support the ruling of the trial court. Here the evidence before the trial court was uncontradicted. It consisted entirely of evidence presented by the People. Deputy Gamberg and Sergeant Stoy testified both at the preliminary examination (the record of which was by stipulation considered by the trial court on the suppression motion) and at the de novo hearing in superior court. Excepting minor and inconsequential variances of the sort encountered in virtually all testimony, the testimony of each officer is internally consistent as well as consistent with that of the other. Thus facts and inferences drawn from the record can be stated in only one way.\\nIn this proceeding, defendants argue that the trial court must perforce have disbelieved Gamberg and Stoy as to those matters crucial to the establishment of probable cause and exigent circumstances. Certainly the trial court's order granting the suppression motion does not eliminate that possibility. The trial court's ruling cryptically ordered \\\"that the motion be Granted suppressing the evidence as described in the written motion.\\\"\\nThe lack of any findings renders impossible meaningful review of the trial court's ruling. If the trial court believed the People's witnesses, it erred as a matter of law in ordering suppression and the People should prevail in this proceeding; if the trial court did not credit the testimony of the People's witnesses the order of suppression should be affirmed. We could, of course, assume the latter scenario in support of the trial court's ruling, affirm the order of suppression, and be done with it. However, we are not disposed to do so on a record consisting entirely of uncontradicted evidence containing not the slightest hint on its face that the People's witnesses were unworthy of belief or in fact disbelieved by the trial court. Such an undiscriminating disposition might perpetuate a serious error of law and, worse yet, wrongfully deprive the fact finder of the benefit of probative evidence highly relevant in the trial of serious charges and most probably essential to the ascertainment of the truth. Such a course would not serve the cause of justice and would certainly impair public confidence in the ability of the judicial system to fulfill its promise to ascertain rather than to frustrate the truth.\\nThe disposition which we adopt will not result in prejudice to defendants. If the trial court based its order on a credibility determination, defendants will receive the full benefit thereof; if the trial court's order reflects the erroneous application of legal principles to the facts, defendants are not prejudiced by being deprived of that to which they are in no event entitled.\\nLet a peremptory writ issue directing the trial court to vacate the order of suppression and reconsider its ruling in the light of this opinion. The stay previously issued will remain in effect pending finality of this opinion. The order to show cause, having served its purpose, is discharged.\\nParas, J., concurred.\\nAs it turned out, Gamberg's concern was further confirmed by the ensuing search which turned up a 25-caliber automatic pistol and ammunition in the bedroom where Samuel Quinn and Lee had been and to which Gamberg's view was blocked by Diana Quinn. The pistol is the basis for the charges against Samuel Quinn of possession of a concealable firearm by a convicted felon (Pen. Code, \\u00a7 12021) and alteration of identifying marks on a firearm (Pen. Code, \\u00a7 12090).\\nEven if unlawful, the arrest of defendants would not have rendered unlawful the officer's later entry into the Arcade to arrest Lee; in that event the only evidence subject to suppression would have been the keys to the Porsche which were seized from defendant Samuel Quinn's person incident to his arrest.\\nA bread bag containing a syringe and needle (People's exhibit No. 16, at the preliminary examination) found on the ground next to the stolen Porsche would be admissible even if the searches of the Arcade, both with and without a warrant, were illegal. Evidence recovered in the search of the stolen Porsche would also not be affected were the other searches found to be unlawful.\"}"

cal/1990041.json

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+"{\"id\": \"1990041\", \"name\": \"JOHN L. HUBBARD, Plaintiff and Respondent, v. TRAVIS H. CALVIN, JR., Defendant and Appellant\", \"name_abbreviation\": \"Hubbard v. Calvin\", \"decision_date\": \"1978-08-03\", \"docket_number\": \"Civ. No. 16499\", \"first_page\": \"529\", \"last_page\": \"535\", \"citations\": \"83 Cal. App. 3d 529\", \"volume\": \"83\", \"reporter\": \"California Appellate Reports, Third Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T18:41:29.058356+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOHN L. HUBBARD, Plaintiff and Respondent, v. TRAVIS H. CALVIN, JR., Defendant and Appellant.\", \"head_matter\": \"Civ. No. 16499.\\nFourth Dist., Div. One.\\nAug. 3, 1978.\\nJOHN L. HUBBARD, Plaintiff and Respondent, v. TRAVIS H. CALVIN, JR., Defendant and Appellant.\\nCounsel\\nMcInnis, Fitzgerald, Rees & Sharkey and Reeve J. Jacques for Defendant and Appellant.\\nHarney & Moore and James J. Pagliuso for Plaintiff and Respondent.\", \"word_count\": \"1817\", \"char_count\": \"11198\", \"text\": \"Opinion\\nCOLOGNE, J.\\nA jury returned a $77,000 verdict in favor \\u00f3f plaintiff John L. Hubbard after trial of Hubbard's complaint for damages for medical malpractice against defendant Travis H. Calvin, Jr., M.D. Calvin appeals the judgment entered on the verdict after the trial court denied his motions for mistrial and for new trial.\\nThe action arose out of Calvin's June 1972 decision to perform, and his technique in performing, a cerebral angiogram, also called an arteriogram, on Hubbard who had an electric shock in March and was experiencing vertigo. When Hubbard awoke from the general anesthetic administered for the arteriogram he was paralyzed on his left side. The severity of the paralysis subsided so that by the time of trial, four years after the arteriogram, he was able to walk with the use of a leg brace.\\nCalvin contends the court reversibly erred in giving Hubbard's requested special instruction reading: \\\"If you find that the technique used by the defendant, Calvin, in the performance of the arteriogram was not approved by a respectable minority of neurosurgeons in 1972, you are instructed to find that the defendant, Calvin, violated his duty to use the care and skill ordinarily exercised in like cases by reputable neurosurgeons practicing under similar circumstances.\\\"\\nThe giving of this instruction requires a reversal for two reasons. It is not a correct statement of the law and it deprived Calvin of his right to a jury determination of whether he was negligent.\\nFirst, the instruction is founded upon an erroneous concept of standard of care in medical malpractice cases. \\\"The courts require only that physicians and surgeons exercise in diagnosis and treatment that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.\\\" (Bardessono v. Michels, 3 Cal.3d 780, 788 [91 Cal.Rptr. 760, 478 P.2d 480, 45 A.L.R.3d 717].) This correct definition of the duty of care makes no reference to a \\\"respectable minority\\\" of physicians practicing the medical specialty Calvin practiced, neurosurgery.\\nThe out-of-state authorities cited by Hubbard in support of the instruction deal with alleged negligence in using methods of treatment for diseases having no known cure, where the treatment method is alleged to have been unnecessary (Baldor v. Rogers, supra, 81 So.2d 658 (cancer); Hood v. Phillips (Tex.Civ.App. 1976) 537 S.W.2d 291 (emphysema)) or not practiced according to an accepted treatment method used by a respectable minority of physicians (Leech v. Bralliar (D.Ariz. 1967) 275 F.Supp. 897 (\\\"whiplash\\\")). Although Hubbard alleged and presented evidence that Calvin's use of the arteriogram was unnecessary, there is no other resemblance of Hubbard v. Calvin to the out-of-state cases.\\nMore important, however, is the fact the out-of-state cases did not deal directly with instructing the jury and, to the extent they can be interpreted as doing so, they did not state a rule in language which even remotely resembles the language of the questioned instruction in the case before us. Both Baldor v. Rogers, supra, 81 So.2d 658 (see fn. 1 ante) and Hood v. Phillips, supra, 537 S.W.2d 291, emphasized use of the traditional standards for measuring malpractice. Both cases, too, phrased their statements about a respectable minority of physicians in terms exculpating the physician from a finding of negligence if the physician uses acceptable procedures as espoused by the respected minority. The two cases cited do not state the rule in the inculpatory manner of the instruction given here, namely, that he is guilty of negligence if he does not follow his colleagues. That inculpatory language should not be read into the statements in the cases, for the statements must be read in the context of applying treatment methods to the incurable diseases involved (\\\"that would relieve the defendant of the charge of malpractice\\\" [see fn. 1]; the \\\"physician is not guilty of malpractice\\\" [see fn. 2]).\\nThe negative or reverse implication given by Hubbard to the statements in the out-of-state cases, as reflected in the instruction, does not follow. Likewise, the federal district court case of Leech v. Bralliar, supra, 275 F.Supp. 897, does not support the instruction in that the court there merely incorporates the \\\"respectable minority\\\" language into its conclusions the defendant breached the general standard of care applicable to physicians. In short, the cases do not serve as authority for giving the instruction the jury heard in the case before us and it was error to give that instruction (see Pullen v. Heyman Bros., 71 Cal.App.2d 444, 451-453 [162 P.2d 961]).\\nThe second aspect of error in giving the instruction is it consists of a formula directing the jury to find Calvin was negligent upon reaching the otherwise unguided and easy to reach conclusion of nonapproval of the technique by the \\\"respectable minority.\\\" (See Hood v. Phillips, supra, 537 S.W.2d 291, 293, 295-296.) While formula instructions do not constitute prejudicial error if they state all the elements involved in the case or if other specific instructions cover elements omitted from the formula instruction (Bertero v. National General Corp., 13 Cal.3d 43, 58 [118 Cal.Rptr. 184, 529 P.2d 608, 65 A.L.R.3d 878]), formula instructions should be avoided (Taha v. Finegold, 81 Cal.App.2d 536, 543 [184 P.2d 533]). When the formula instruction is based on an incorrect or unauthorized premise, as here, it constitutes reversible error even if a correct instruction is given in another part of the instructions as a whole {Spear v. Leuenberger, 44 Cal.App.2d 236, 249 [112 P.2d 43]).\\nSince it seems probable the jury's verdict may have been based on the erroneous instruction, prejudice appears and this court will reverse without speculating upon the basis of the verdict (see Henderson v. Harnischfeger Corp., 12 Cal.3d 663, 670 [117 Cal.Rptr. 1, 527 P.2d 353]).\\nIn this connection there was additional error in the trial court's incorrect first reading of BAJI No. 6.30, relating to the use only of expert witness testimony for determining the standard of care for physicians. The trial court told the jury it must not determine the standard only from the expert witness testimony. This was contrary to law (see Cobbs v. Grant, 8 Cal.3d 229, 236-237 [104 Cal.Rptr. 505, 502 P.2d 1]; and see Witkin, Cal. Evidence (2d ed. 1966), \\u00a7 432, p. 389). Although the court later gave a correct version of BAJI No. 6.30 upon rereading the instructions at the jury's request, the presence, then absence of the \\\"not\\\" in the instruction created a direct conflict as to an important aspect of the case and could only have confused the jury (see 4 Witkin, Cal. Procedure (2d ed. 1971) Trial, \\u00a7 241, pp. 3055-3056).\\nFor purposes of retrial we feel compelled to express our view on the impropriety of the trial court's also having given, over Calvin's objection, Hubbard's requested special instruction reading: \\\"You are to find that the arteriogram performed by the defendant, Travis Calvin, on June 2nd, was a substantial factor in causing injury to the plaintiff,. John Hubbard.\\\"\\nThis instruction flies in the face of the very next instruction given telling the jury the plaintiff has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove the issue of legal cause, among other issues. Although the court gave a conditional res ipsa loquitur instruction which may raise an inference that a legal cause of the occurrence was some negligent conduct on the part of the defendant, this is a separate theory for finding legal cause. When the jury was instructed the arteriogram performed by Calvin was a substantial factor in causing Hubbard's injury, it was told, in effect, to find the element of legal cause was present (see Flournoy v. State of California, 275 Cal.App.2d 806, 813 [80 Cal.Rptr. 485]; and see BAJI No. 3.76, \\\"A legal cause of an injury is a cause which is a substantial factor in bringing about the injury\\\"). The court should not take the issue of legal cause from the jury by giving the instruction stating the arteriogram was a substantial factor. That should be left for the jury to decide.\\nIn light of the conclusions we have reached it is unnecessary to address Calvin's other contentions except to comment it was inappropriate for Hubbard's counsel to have asked the question about calling an attorney for the hospital to oppose a subpoena of records of Calvin's studies on other patients when the trial court had earlier ruled such records inadmissible (see Evid. Code, \\u00a7 913, subd. (a); and see Cordi v. Garcia, 39 Cal.App.2d 189, 197 [102 P.2d 820]). This conduct should not be repeated.\\nJudgment reversed.\\nBrown (Gerald), P. J., and Staniforth, J., concurred.\\nA petition for a rehearing was denied August 18, 1978, and respondent's petition for a hearing by the Supreme Court was denied September 27, 1978.\\nHubbard presented the instruction to the trial court with a citation to BAJI No. 6.00, relating to the general standard of care for physicians and surgeons, which the court also gave. Hubbard noted the BAJI No. 6.00 instruction was altered and he cited a Florida case, Baldor v. Rogers (Fla. 1954) 81 So.2d 658 [55 A.L.R.2d 453], 660, dealing with alleged medical malpractice in the treatment of a disease with no known cure, cancer, where the court said: \\\". . . 'the courts cannot hold a defendant in a malpractice suit to the .theory of the one [opinion of physicians on a set of facts] to the exclusion of the other [contrary opinion by other physicians].' If the treatment used is approved by a ' \\\"respectable minority of the medical profession\\\" ' that would relieve the defendant of the charge of malpractice. The doctor is obligated only to use reasonable skill and he fulfills his obligation if he uses methods approved by others of the profession who are reasonably skilled. . . .''\\n\\\"[A] physician is not guilty of malpractice where the method of treatment used is supported by a respectable minority of physicians, as long as the physician has adhered to the acceptable procedures of administering the treatment as by the minority.\\n\\\"As in other cases of this nature, the determination should be predicated upon ordinary negligence\\u2014what a reasonably prudent physician would do under the same or similar circumstances. [Citations.] We see no reason for the standard to be otherwise for an action for unnecessary surgery must be measured by traditional malpractice evidentiary standards.\\\" (Hood v. Phillips, supra, 537 S.W.2d 291, 294.)\\nThe court gave the following instruction: \\\"You must not determine the standard of professional learning, skill and care required by the defendant only from the opinions of physicians and surgeons including the defendant who have testified as expert witnesses as to such standard.\\\"\"}"

cal/2007131.json

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+"{\"id\": \"2007131\", \"name\": \"SUSAN T. GOODHUE, Plaintiff and Respondent, v. BRIAN TUREAUD, Defendant and Appellant\", \"name_abbreviation\": \"Goodhue v. Tureaud\", \"decision_date\": \"1979-12-20\", \"docket_number\": \"Civ. No. 56045\", \"first_page\": \"205\", \"last_page\": \"214\", \"citations\": \"100 Cal. App. 3d 205\", \"volume\": \"100\", \"reporter\": \"California Appellate Reports, Third Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T00:41:13.618950+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SUSAN T. GOODHUE, Plaintiff and Respondent, v. BRIAN TUREAUD, Defendant and Appellant.\", \"head_matter\": \"[Civ. No. 56045.\\nSecond Dist., Div. Two.\\nDec. 20, 1979.]\\nSUSAN T. GOODHUE, Plaintiff and Respondent, v. BRIAN TUREAUD, Defendant and Appellant.\\nCounsel\\nLeo Lacy, Jr., for Defendant and Appellant.\\nJoe Ingber for Plaintiff and Respondent.\", \"word_count\": \"3219\", \"char_count\": \"19469\", \"text\": \"Opinion\\nROTH, P. J.\\nOn April 12, 1976, appellant was convicted by a jury of violating Penal Code sections 209 (kidnaping for the purpose of rob bery), 211 (robbery; second degree) and 288a (oral copulation). He was sentenced and incarcerated in the California Medical Facility at Vacaville. This judgment was appealed and affirmed in People v. Tureaud, 2d Crim. No. 28718, on December 3, 1976, and a petition for hearing was denied and a remittitur was issued March 4, 1977.\\nOn May 3, 1977, respondent, who was the victim in the criminal matter, filed the civil action which is the subject of this appeal. Personal service of the summons and complaint was effected May 25, 1977. On August 4, the same year, a request to enter default (amended) was filed by respondent, appellant having failed to answer or otherwise appear in the action. A copy thereof was timely served on appellant by mail. Pursuant to respondent's request, a default hearing was held September 29, 1977, and a judgment awarding respondent $25,800 general damages and $25,000 punitive damages was entered February 21, 1978. Notice of entry was also mailed to appellant the same day and a copy of the judgment was served personally on him on March 11, 1978. Appellant's first communication in the matter consisted of his motion to set aside the default, filed May 24, 1978. That motion was denied.\\nThe sole question before us is whether that ruling was justified in light of the principles enunciated in Payne v. Superior Court (1976) 17 Cal.3d 908 [132 Cal.Rptr. 405, 553 P.2d 565].\\nIn his declaration in support of the motion for relief from default and by way of establishing his inadvertence or excusable neglect, appellant maintained:\\n\\\"1. This case came on regularly for trial on September 29, 1977. Joe Ingber Esq., appeared as attorney for [respondent], [Appellant] was not present nor was [he] represented by counsel. Judgment was entered against [appellant] in the amount of $25,800 punitive damages and the amount of $25,000 for general damages, on February 21, 1978.\\n\\\"2. [Appellant] desired to be present and also desired to be represented by counsel.\\n\\\"3. [Appellant] was at the time of the trial and is currently incarcerated.\\n\\\"4. [Appellant] did not receive the summons in time necessary to respond to complaint, and did not know how he could respond.\\n\\\"5. [Appellant] attempted to be released so that he could defend himself in the above action.\\n\\\"6. [Appellant] attempted to obtain the services of a lawyer but was unsuccessful.\\n\\\"7. The allegations in the complaint are untrue.\\n\\\"8. Each of the allegations is untrue.\\n\\\"9. [Appellant] would not have allowed the same judge who sentenced him erroneously to hear a civil suit against him.\\n\\\"10. Joe Ingber, attorney for [respondent] and Judge Raymond Choate knew of [appellant's] inability to appear.\\n\\\"11. [Appellant] is indigent and cannot now, nor could he at trial afford an attorney.\\n\\\"12. [Appellant is a] layman and ignorant as to provisions of the law.\\\"\\nThe contention is these assertions place appellant squarely within the holding expressed in Payne and require us to reverse the order appealed from denying his motion to set aside the default and vacate the judgment. We do not agree.\\nIn the case cited, Payne, like appellant, was first convicted of the commission of a crime which provided the basis for a subsequent civil suit against him. Though initially represented by counsel who filed an answer in his behalf, Payne, while incarcerated following revocation of probation, suffered a default judgment against him after his attorney was permitted to withdraw based on Payne's inability to pay the attor ney's fee. Prior to the judgment, however, though after he was no longer represented, Payne requested the Department of Corrections by letter to allow him to attend the trial (which request was denied) and also in another letter, asked the trial court assigned to the matter to dismiss the action against him, pointing out he was incarcerated. In an extensive analysis of the question whether Payne had been unconstitutionally deprived of his right of access to the courts, either through his personal presence or through representation by appointed counsel in his behalf, a majority of our Supreme Court concluded that since no valid state interests could be advanced in support of the denial of such access, its unqualified deprivation constituted \\u00e1 violation of Payne's rights under the due process and equal protection clauses of both the state and federal Constitutions. (Payne v. Superior Court, supra, 17 Cal.3d 908, 922-923.) The majority then observed: \\\"The establishment of petitioner's right, however, does not necessarily mandate a particular remedy. Petitioner has demonstrated that the dual deprivation of appointed counsel and the right to personal presence in court is unconstitutional, but not that the denial of each of those rights individually is invalid. Indeed, to grant petitioner an absolute right to both appointed counsel and personal appearance would achieve the anomalous result of according him greater privileges than those possessed by an ordinary indigent civil litigant.\\n\\\"One possible solution to this dilemma is to accord prisoners the right of personal appearance to defend any action, but to deny indigent prisoners appointed counsel. This approach has the advantage of superficial symmetry. It appears to place the indigent prisoner in the same position as the indigent free person: each would have the right to appear, and to employ counsel if able to do so. However, as has been shown, prisoners do not have the same access to free legal services as other indigents. Equally significant, a prisoner, unlike a free person, is not able to seek out witnesses in his behalf or undertake the investigative functions often needed to defend a civil suit. When these factors are combined with the limited education and intelligence level of substantial numbers of prisoners, it becomes clear that allowing a right of personal appearance is not an appropriate remedy for prisoners seeking to defend a civil action.\\n\\\"Another alternative is to require trial courts to defer trial of actions against prisoners until their release. When this course of action is not prohibited by law (see, e.g., Code Civ. Proc., \\u00a7 1054) and postponement will not substantially prejudice the rights of plaintiffs, trial courts may exercise their discretion in this manner.\\n\\\"However, in many situations, particularly when a defendant is serving a long term of confinement, a postponement will substantially impair the interests of the plaintiff. In those cases the only feasible method of granting access rights to indigent prisoners is appointment of counsel. Whether counsel will be drawn from the ranks of legal aid attorneys, other public or privately funded lawyers serving the disadvantaged, public defenders if so authorized to act, or the private bar, is a question that we leave to the sound discretion of trial courts. We recognize, of course, that funds for payment for the services of the appointed attorneys are unavailable until such time as authorized by the Legislature. (Fn. 6, ante.) All we hold is that denial of appointed counsel to an indigent prisoner, when no other relief will preserve his right of access to the courts, is constitutionally impermissible.\\n\\\"We do not rule that appointment of counsel is an absolute right. However, it is in many instances the only remedy enabling a prisoner to obtain access to the courts. The access right, in turn, comes into existence only when a prisoner is confronted with a bona fide legal action threatening his interests. If a prisoner is merely a nominal defendant with nothing of consequence at stake, no need emerges for an appointed attorney. Thus, before appointing counsel for a defendant prisoner in a civil suit the trial court should determine first whether the prisoner is indigent. If he is indigent and the court decides that a continuance is not feasible, it should then ascertain whether the prisoner's interests are actually at stake in the suit and whether an attorney would be helpful to him under the circumstances of the case. The latter determination should be comparatively simple: if the prisoner is not contesting the suit against him, or any aspect of it, there is no need for counsel; but if he plans to defend the action and an adverse judgment would affect his present or future property rights, an attorney should be appointed. (See Bagley v. Bagley (1968) supra, 292 N.Y.S.2d 796 (personal appearance of prisoner in divorce action held unnecessary where prisoner did not contest divorce); Gagnon v. Scarpelli (1973) 411 U.S. 778, 788-789 [36 L.Ed.2d 656, 665-666, 93 S.Ct. 1756] (case-by-case approach adopted to determine necessity of counsel in probation revocation hearings); Tobriner & Cohen, How Much Process is \\\"Due\\\"? Parolees and Prisoners (1974) 25 Hastings L.J. 801, 808.)\\n\\\"While this remedy will probably suffice in most cases, in other instances it may also be desirable for the prisoner to testify on his own behalf. Accordingly, when the trial court determines on motion that the in-court testimony of a prisoner defendant\\u2014whether indigent or not\\u2014is needed to protect the due process rights of the parties, it may attempt, through the Department of Corrections, to arrange the presence of the prisoner. Except in a few specified circumstances, a court has no statutory authority to command the Department of Corrections to transport a prisoner to a civil courtroom. But judges do have a constitutional duty to uphold the due process clause. Accordingly, if a court determines that a prisoner's personal testimony is needed to preserve due process rights, but the Department of Corrections refuses accommodation, the court may order a continuance or employ other alternatives to transporting the prisoner, such as recording his testimony or if feasible holding a portion of the trial at the prison.\\\" (Fns. omitted.) (Id., at pp. 923-925.)\\nRespecting the denial by the Payne trial court of the motion to vacate the default judgment there, it was further observed: \\\". . . Ordinarily, a trial court has discretion to deny a motion to vacate a default judgment. A determination by a court that a judgment was properly taken against a party, even if in error, will not generally be reviewable by mandate. But in the present case the trial court's denial of relief under Code of Civil Procedure section 473 apparently was not an act of discretion, but rather a refusal to exercise discretion. When the court was informed by petitioner that the original judgment was taken against him while he was incarcerated and unable to obtain an attorney or personally appear to defend, a duty arose to determine whether petitioner had been denied meaningful access to the courts. The court, as noted, has the discretion to determine whether petitioner is indigent and whether he stands to be deprived of a substantial interest in the proceedings against him.\\\" (Fn. omitted.) (Id., at p. 926.)\\nAs noted previously, appellant maintains these pronouncements apply with equal import to the facts of his case and require our reversal of the trial court's adverse determination, since \\\"[appellant's] failure to contest the judgment because he was denied the means to do so is, of course, excusable neglect as a matter of law.\\\" (Payne v. Superior Court, supra, 17 Cal.3d 908, 926, fn. 9.)\\nIn our view the majority opinion in Payne does not reach so far as to encompass those instances where, as here, in spite of completed valid service of initiation of civil proceedings against him and other completed written notice during the proceeding, a litigant-defendant, even though incarcerated and indigent, takes no steps appropriately calculated to protect or suggesting a desire to protect his interest prior to suffering a default judgment, nor do we accept as valid the suggestion that the language in Payne last above quoted is intended to mean that the only element of timeliness relevant to the inquiry respecting the constitutional rights of persons so situated is that associated with a motion for relief from default, after it has occurred. Rather we are of the opinion that the constitutional rights referred to are subject to waiver through failure to timely assert them and that, as in the case of ordinary civil litigants, they may be deemed to be waived or abandoned if not adequately preserved. In the case at bench there is nothing sufficient to show appellant has met the burden of this requirement.\\nWhile appellant asserts he attempted to be released in order to appear in defense, nothing appears in the record to show how that effort was made or responded to; while he claimed to have attempted to obtain counsel, nothing discloses what that attempt consisted of; and while he maintained counsel for respondent and the trial court knew of his inability to appear, nothing is shown or suggested to support the idea either knew he was indigent.\\nIn item 4 of his declaration (ante) appellant states he did not receive \\\"the summons in time to respond to the complaint.\\\" He does not deny as the record shows that the summons and complaint were actually served upon him at Vacaville Medical Facility at 11:59 a.m. on May 25, 1977. Nor does he deny he, on or about August 4, 1977, received a copy of the notice for a request to enter a default against him on the complaint he had in his possession. In this complaint respondent alleged facts associated with the felony of which appellant had been convicted, and based upon said allegations prayed for actual damages as proved and punitive damages in the sum of $100,000. Appellant does not suggest he did not know the default hearing was set for and heard on September 29, 1977, or that he did not know on or about that date that Judge Choate who presided at his criminal trial was the judge who presided at the default hearing. Appellant in item 6 of his declaration states he unsuccessfully attempted to obtain the services of a lawyer. He does not say when or how he made such attempt or attempts although the record shows as noted above appellant was represented by privately retained counsel in the criminal case at the trial and during the appeal of the criminal action. Nor is there any declaration from the said attorney who had over a period of more than one year represented appellant, or of any other person, of any single attempt to consult with any counsel or any such person.\\nA dispassionate analysis of appellant's declaration in the light of the record impels the conclusion that with or without advice, legal or otherwise, appellant was at no time denied access to the court but elected with calculation the time when he would avail himself of his right to access.\\nCurrently and at the time the motion to vacate was denied, two facts averred in appellant's declaration pertinent to his position were and are unrefuted: (1) appellant was, when the action at bench was initiated, has been at all times during these proceedings, and is now incarcerated, which fact was known to respondent's attorney and the judge who heard the default, and (2) the default hearing in this proceeding was held before and the judgment resulting therefrom was signed by Raymond Choate, the same judge who presided at his criminal trial.\\nWith respect to the first of the undisputed facts, appellant's admission fortified by the record demonstrates he was legally served as an adverse party with all pertinent documents at the state's Vacaville Medical Facility in the same manner as if he were not incarcerated and performed no specific act until approximately 10 months later. Nothing in the record suggests his incarceration prevented timely and appropriate response.\\nIn addressing the second undisputed fact, immediate reaction suggests, if appellant were on the \\\"street\\\" and appeared in pro per or by counsel an affidavit of prejudice (Code Civ. Proc., \\u00a7 170.6) in the nature of a peremptory challenge to Judge Choate could have been filed. A ready answer, based on the record, is, appellant had ample notice of the intention of respondent to enter appellant's default and could have appeared by counsel to resist that entry but elected not to. Further, if he had been represented by seasoned trial counsel at the default hearing, there is no certainty the challenge to Judge Choate would have been exercised and finally, there is not a remote suggestion in appellant's declaration, his proposed answer and/or the record that the default hearing was unfairly conducted or the judgment is not based on substantial evidence or is not fair and/or reasonable.\\nAgainst the suggestion the mere fact Judge Choate presided at the default hearing is per se prejudicial, we observe no case is cited to sustain such a position and we are unaware of any such authority. If the point were raised on grounds of propriety alone, it is a challenge to the inherent integrity of any judge, and of Judge Choate in particular, and nothing in appellant's declaration or the record sustains it.\\nIn brief, appellant had ample continuous opportunity to defend the action against him \\\" . at a meaningful time and in a meaningful manner.\\\" (Payne, supra, p. 911.) But instead of doing so, he calculated he could convert the shield of due process into a sword solely because he was incarcerated in a state prison.\\nThe judgment is affirmed.\\nFleming, J., and Compton, J., concurred.\\nAppellant's petition for a hearing by the Supreme Court was denied February 20, 1980.\\nAppellant was represented in the criminal action at the trial and on appeal by retained counsel.\\nThe gravamen of the civil suit based upon some of the same facts involved in the criminal action was. that appellant on or about August 27, 1975, \\\"maliciously and wilfully assaulted and battered plaintiff by threatening plaintiff by pointing a realistic simulated revolver at plaintiff, by uttering threats to plaintiff, by touching plaintiff without her consent, by forcing plaintiff to disrobe, and by forcing plaintiff to commit act or oral copulation on the penis of [appellant] while he threatened plaintiff with\\nSo by way of example, as pointed out in Payne, while it is true the inability of a party's counsel to appear owing to his illness would otherwise provide a valid ground for vacating a judgment based on his absence, such is the case only where the party was unable in time to obtain new counsel, the essential point being that one must in all events undertake those actions necessary to maintain the continuing viability of any given circumstance offered in excuse against default. (See Payne v. Superior Court, supra, 17 Cal.3d 908 at p. 926, fn. 9.)\\nThe point raised with respect to Judge Choate's right to hear the default in this action impels the thought that the Legislature might well consider legislation which would give the victim in a criminal action when a defendant is found guilty the option in a case like the present to request the judge who presided at the trial, irrespective of whether by court or jury, to fix a date for a hearing on the subject of damages and enter a judgment for the victim to become effective when the judgment in the criminal case becomes final.\"}"

cal/2018673.json

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+"{\"id\": \"2018673\", \"name\": \"JOHN MULLER, Respondent, v. STANDARD OIL COMPANY (a Corporation), et al., Appellants\", \"name_abbreviation\": \"Muller v. Standard Oil Co.\", \"decision_date\": \"1919-04-22\", \"docket_number\": \"L. A. No. 4635\", \"first_page\": \"260\", \"last_page\": \"265\", \"citations\": \"180 Cal. 260\", \"volume\": \"180\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T20:58:30.706436+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOHN MULLER, Respondent, v. STANDARD OIL COMPANY (a Corporation), et al., Appellants.\", \"head_matter\": \"[L. A. No. 4635.\\nIn Bank.\\nApril 22, 1919.]\\nJOHN MULLER, Respondent, v. STANDARD OIL COMPANY (a Corporation), et al., Appellants.\\nNegligence\\u2014Violation of Municipal Ordinance\\u2014Use of Tricycle upon Sidewalk by Minor\\u2014Permission of Father\\u2014Recovery for Injury.-\\u2014A father who allows his four-year old son t'o use a tricycle on a city sidewalk in violation of an ordinance is himself guilty of a violation of the ordinance under section 31 of the Penal Code, and where such negligence proximately causes an injury to the child, the father cannot recover damages for such injury.\\nId.\\u2014Action for Death\\u2014Proximate Cause of Accident.\\u2014In this action by a father for damages for the death of his four-year old son, who was killed by being crushed under an oil truck at the crossing of the sidewalk on which the child was riding his tricycle with the alley on which the truck was proceeding, it is held from the evidence that the use of the tricycle in violation of the ordinance with the father\\u2019s consent, was a proximate cause of the accident.\\nAPPEAL from a judgment of the Superior Court of Los Angeles County. Lewis W. Myers, Judge. Reversed.\\nThe facts are stated in the opinion of the court.\\nMott & Dillon, Bradner W. Lee, Bradner W. Lee, Jr., and Kenyon F. Lee for Appellants.\\nGeo. M. Barker and R. T. Lightfoot for Respondent.\", \"word_count\": \"2171\", \"char_count\": \"11846\", \"text\": \"WILBUR, J.\\nPeter Muller, a boy of four years of age, while riding on a sidewalk on the west side of San Pedro Street at its crossing with the alley midway between Fourth and Boyd Streets in Los Angeles, was killed by being crushed-under the right rear wheel of a five-ton oil truck owned by the defendant, Standard Oil Company, driven by defendant Bechtel, an employee. The truck was proceeding easterly out of the alley across the sidewalk and on to San Pedro Streef. The father, John Muller, sues for damages caused to himself by the death of said child, and alleges that the same was due to the negligence of the driver of the truck. Judgment, after verdict for five thousand dollars, was in favor of the plaintiff. Defendants appeal.\\nThe testimony shows, without contradiction, that the truck was being operated very slowly, between three and five miles an hour. The driver testified that he looked up and down the sidewalk and the street and that he sounded his horn when' within thirty or forty feet of the sidewalk; that he did not see the child or know of the accident until some bystander yelled \\\"Stop\\\"; that he stopped within a few feet and found on looking back that the child had been killed. On the south side of the alley is the north wall of the Santa Rosa Hotel, which extends to the sidewalk, and the front or east side of the hotel is flush with the sidewalk. On the north side of the alley and flush with the edge of the alley is a one-story dwelling, the front of which is seven and a half feet from the sidewalk line, but in front of which a porch extends several feet toward the sidewalk. Next to that house and within forty feet of the alley plaintiff resided. Respondent's theory is that the child was riding south on the sidewalk on his tricycle and was struck by some portion of the front end of the truck and thrown underneath the truck, falling in front of the rear wheel on the opposite side. Appellant's theory is that the boy rode directly under the truck between the front and rear wheels and fell in front of the rear wheel on the opposite side. The city of Los Angeles has an ordinance prohibiting the use of tricycles upon sidewalks. The appellants contend not only that they were not negligent, but-that the child and its parents were guilty of negligence. At the conclusion of plaintiff's testimony appellants moved for a nonsuit, upon the ground that the evidence showed that the child was negligent, in violating a municipal ordinance, and that the parents were negligent in allowing him to ride upon the sidewalk on his tricycle. The motion was denied, and- the denial of this motion is now urged as error.' The court instructed the jury that while it was negligence per se to violate a city ordinance, as the child was under fourteen years of age, in order to establish negligence by reason of the violation of a city ordinance, it was necessary to prove that the child knew of the wrongfulness of its conduct. (Pen. Code, sec. 26.) It may be assumed for the purposes of this decision that the child, because it was too young to know that it was violating a city ordinance, was not guilty of negligence. If, however, the father was guilty of negligence in the care of the child, which proximately caused the injury, he cannot recover. (Meeks v. Southern Pacific R. R. Co., 56 Cal. 513, [38 Am. Rep. 67]; Fox v. Oakland Con. St. R. R. Co., 118 Cal. 55, [62 Am St. Rep. 216, 50 Pac. 25].) The child had been using the tricycle for over two years. Respondent in his brief assumes that it was the custom of the child to play on the sidewalk with his tricycle. The father testified: \\\"Und everybody stop, or give it vistle; on the alley everybody stop, what I see all the time,, und give it vistle, or I think hees got killed on the sidewalk over there some time.\\\" Plaintiff also testified that immediately before the accident the child had been given a penny to go to a candy store at the corner of Fourth and San Pedro Streets on his tricycle; that he went to and returned from the candy store, both times crossing the alley on the sidewalk; that he again left on his tricycle not two minutes before the accident. The court, in its instructions to the jury upon that subject, stated that if the child was a dutiful and obedient child up to the time in question, and by the consent of the father and mother had gone on his tricycle to the candy store to buy a stick of candy, had been told to immediately return to the house and that he had done so, \\\"but that then and immediately thereafter and of his own volition and without the consent of his parents, or either of them, either express or implied, the child decided to take another ride on his tricycle, and again started south on the sidewalk toward and on to or across the alleyway in question, and while on his second trip he was run over and killed by the negligence of the defendants, and without any negligence of the parents, or either of them, proximately contributing thereto, then such action of the mother in permitting her child to go in the first place on the sidewalk and to get his candy and return would not excuse the defendants in this case.\\\" The use of the tricycle by a child for more than two years, with the knowledge and consent of his parents, coupled with the fact that immediately before the accident the child had been permitted to use his tricycle upon the sidewalk, twice crossing the alley in question, was in fact a consent on the part of the parents to use the tricycle on the sidewalk at the time of the accident, in violation of the city ordinance. The parents themselves, by consenting and encouraging their child to use the tricycle upon the sidewalk, were thus guilty of a violation of the ordinance. (Pen. Code, sec. 31.) There is no doubt that the use of the tricycle was a proximate cause of the accident. No witness saw the child in front of the- truck. It appears from the testimony of every witness that saw the child when run over that he fell from his tricycle directly under the truck, either because riding over the edge of the curb which separated the alley from the sidewalk the tricycle tipped over, or because the child suddenly turned the same, or because he was struck by some part of the truck\\u2014the latter being the contention of the respondent. The plaintiff's witness, Barlag, who was within ten or fifteen feet of the boy at the time he was killed, testified: \\\"I seen the boy when he fell under the truck. He fell on the south side. He fell under the wheel. He was not lying down. He fell off his tricycle on the ground and under the wheel.\\\" On cross-examination he stated that in his opinion the boy was going south. \\\"When he first saw the boy he was under the truck. \\\"He was not lying down. He fell under the truck. The first I seen he was under the truck on the tricycle and he fell under the wheel. I don't know whether he was struck by the front wheel or not. When he fell, his head fell right under the wheel.'' The plaintiff's witness, Thomas Bussell; did not see the boy, but stated that when the radiator of th\\u00e9 truck was two feet beyond the line of the Santa Bosa Hotel he saw no one in front of the truck at that time; that though he^continued to look at the truck from that time forward, he did not see the accident. Plaintiff's witness, James Bussell, testified that the rear wheel passed over - the boy's head. \\\"He was almost in an upright position when I first saw him, and he just crumpled under the rear wheel. I don't think he was standing on his feet. I could see his head up above under the truck. He was on the ground. I saw the bicycle laying there. I didn't pay much attention to it. The driver didn't know that he had hurt anybody until he had stopped the truck.\\\" Defendants' witness, E. A. Farris,stated that he stopped his truck in front of plaintiff's house in order to wait for the truck to emerge from the alley, having seen it coming out before he reached the line of the sidewalk, but he did not see the child on the sidewalk. \\\"He was under the truck when I first saw him; just went under the wheel, the tricycle and all\\u2014under the right-hand rear wheel. I seen the boy just as he fell, just as he went under the wheel, just as the wheel went over him. . . . He fell off. It looked like there was a curb or something or other. He made a turn, j'ust tumbled right off -under it. Q. Off the edge of the curb, you mean ? A. No. There seemed to he a jump-off or something there. He just keeled right oyer under the wheel. ' ' No other witnesses saw the accident. The defendant Bechtel testified that he did not see the child, although he looked to the front and both sides, and all the witnesses seem to agree that he knew nothing of the presence of thp child until after he had stopped his truck. The only evidence from which the jury could infer that the defendants were negligent, was that relating to the speed of the truck, the nature and character of the accident, the testimony which might 'have justified the jury in finding that the truck driver did not sound his horn nearer than thirty or forty feet to the sidewalk, if at all, and the inference which the jury might have drawn from the facts and circumstances at the time of the accident that although the truck driver and other witnesses testified that he looked up and down the street, that he did not in fact look with due care. Assuming, however, that there was sufficient evidence to sustain the verdict of the jury holding the defendants negligent, it is clear from the evidence that the use of the tricycle by the child was as truly a proximate cause of the accident, under the circumstances, as was the use of the truck by the defendants. The conduct of the plaintiff in allowing the child to use the tricycle in violation of the city ordinance was negligence on the part of the father, and because such negligence contributed to the injury he cannot recover.\\nThe judgment is reversed.\\nLennon, J., Shaw, J., Olney, J., Melvin, 'J., and Angellotti, C. J., concurred.\"}"

cal/2018717.json

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+"{\"id\": \"2018717\", \"name\": \"In the Matter of the Estate of A. J. SEAY, Deceased; JAMES A. MARSH et al., Respondents, v. RALPH M. SEAY et al., Appellants\", \"name_abbreviation\": \"Marsh v. Seay\", \"decision_date\": \"1919-05-06\", \"docket_number\": \"L. A. No. 6017\", \"first_page\": \"304\", \"last_page\": \"306\", \"citations\": \"180 Cal. 304\", \"volume\": \"180\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T20:58:30.706436+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of the Estate of A. J. SEAY, Deceased. JAMES A. MARSH et al., Respondents, v. RALPH M. SEAY et al., Appellants.\", \"head_matter\": \"[L. A. No. 6017.\\nDepartment Two.\\nMay 6, 1919.]\\nIn the Matter of the Estate of A. J. SEAY, Deceased. JAMES A. MARSH et al., Respondents, v. RALPH M. SEAY et al., Appellants.\\nEstates of Deceased Persons\\u2014Will\\u2014Distribution of Residue of Estate\\u2014Persons Entitled.\\u2014Under a clause in a will providing that when all the devisees and legatees were fully paid what had been bequeathed to them, the residue, if any, should be paid . in specific amounts to certain nephews and nieces, such nephews and nieces were not entitled to have distributed to them the whole of the residue of the estate over the specific amount so bequeathed to them, amounting to three hundred thousand dollars, but the same was properly distributed among all the nephews and nieces of the deceased, as heirs at law, the deceased having died intestate as to such excess.\\nId.\\u2014Partial Distribution \\u2014 Evidence \\u2014 Rough Draft of Will\\u2014 Harmless Error.\\u2014In a proceeding upon partial distribution under such will, the error in admitting in evidence a so-called rough draft' of a will which was found in the same envelope with the will in question, was harmless, since the interpretation of the will was a matter of law to be determined from its language, and the facts and circumstances in proof in the case.\\nAPPEAL from a judgment of the Superior Court of Los Angeles County. James C. Rives, Judge. Affirmed.\\nThe facts are stated in the opinion of the court.\\nNeighbours, Hoag & Burke for Appellants.\\nW. I. Gilbert for Respondents.\", \"word_count\": \"1145\", \"char_count\": \"6643\", \"text\": \"WILBUR, J.\\nThe controversy in this case arises upon partial distribution and involves a determination of the meaning of the following clause in the will, dated November 28, 1902: \\\"When all the devisees and legatees are fully paid what has been bequeathed to them the residue of my estate, if any, shall be divided as follows: To Ida Dowler, $2500.00, to Nannie Marsh, Jas. A. Marsh, $2000.00, five hundred of-which to be used to pay for dress, expenses and dues to the Military Order of the Loyal Legion of the U. S. Mo. Commandery. To Maud Woodruff if married $100, if single $500 \\u2014Minnie Carhart $100 (one hundred dollars). Sue E. Sanders $1000.00 G. E. Marsh, $500.00 Ralph M. Seay upon the sole condition that he has entirely quit drinking for at least one year, $2500.00, otherwise nothing except what has heretofore been given. Earl Seay if married $2000, if single $1000\\u2014W. J. Seay if he shall be married $1000, Lulu Y. Sigler $2500.00. If there are not enough assets to pay the above bequests, and yield funds to carry out and pay the trusts herein created, then they shall be paid pro rata.\\\"\\nAppellants claim that by this clause of the will it was intended to dispose of the remainder of the estate, and that inasmuch as the estate is worth three hundred thousand dollars more than is otherwise disposed of by the will, this excess amount should be distributed among those mentioned in the above clause in proportion to the respective amounts they were to receive by said clause. The testator declared in the next clauses in his will, \\\"I will make my gifts without regard to the disposition of my property here made, which shall not be considered as advancements. I expect also to make some charitable and public donations which will consume more or less of my estate. I intend to do something for poor children in the way of an industrial school or orphans' home, and. to contribute to a public library. But the town and the public must take holt and contribute.\\\" The opening clause of the will contains the following recital: \\\"Having seventeen nieces and nephews all of whom are worthy\\u2014all of whom have heretofore received financial help from me in proportion to their needs the prodigal and unfortunate receiving more than the rest, and many of them being more or less needy. In making the following disposition of my property I am yet mindful of what I have done for them and they for me, and of their present and prospective needs. ' '\\nThe trial court held that the remainder of the estate, after paying all legacies specified in the will, consisted of three hundred thousand dollars, and that as to such excess the will made no disposition, and distributed said amount equally to the sixteen surviving nieces and nephew's of the deceased. Any other construction would lead to a vast disproportion in the amounts received by the nieces and nephews, although the deceased declared that \\\"all of whom are worthy.\\\" The construction contended for by appellants would increase the total legacies mentioned to the nieces and nephew's in the clause under consideration from eleven thousand seven hundred dollars to three hundred and eleven thousand seven hundred dollars; while the remaining nieces and nephews get amounts ranging from one thousand dollars to two thousand five hundred dollars. Two facts are patent from the will: First, the intention of the testator during his lifetime to dispose of all property, not devised or bequeathed in the will by gift and advancements; second, that the testator regarded his nephews and nieces with equal affection and considered them equally entitled to his bounty, but not equally needy. There is no indication that these nieces and nephews in the clause under consideration were to be specially favored. On the contrary, the amounts bequeathed them were to be abated pro rata, if the estate was insufficient to pay the same .in full, while the other legacies were to be \\u00bfaid in full. It is plain that the testator failed to make any provision for the contingency of there being an excess over the amounts therein bequeathed, and that such excess must be distributed to the heirs at law.\\nIt is claimed that the trial court erred in admitting in evidence a so-called rough draft of a will which was found in the same envelope with the will that was offered for probate, and some oral evidence in connection therewith. This will was received over the objections of appellants, but with the understanding that the court would reconsider its admissibility on a motion to strike out, the court expressing a- doubt as to its admissibility. Subsequently all the oral evidence was stricken out. It does not appear from the briefs whether or not a motion was made to strike out this draft of a will, However that may be, the interpretation of the will is a matter of law, to be determined from the language used in the will, and the facts and circumstances in proof in the case, and upon the record we can determine the proper interpretation without reference to such rough draft of a will. Hence the error in admitting the rough draft was harmless.\\nThe judgment is affirmed.\\nMelvin, J., and Lennon, J., concurred.\"}"

cal/2038460.json

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+"{\"id\": \"2038460\", \"name\": \"A & M RECORDS, INC., Plaintiff and Respondent, v. DAVID L. HEILMAN, Defendant and Appellant\", \"name_abbreviation\": \"A & M Records, Inc. v. Heilman\", \"decision_date\": \"1977-11-30\", \"docket_number\": \"Civ. No. 48806\", \"first_page\": \"554\", \"last_page\": \"571\", \"citations\": \"75 Cal. App. 3d 554\", \"volume\": \"75\", \"reporter\": \"California Appellate Reports, Third Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T22:14:44.738304+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"A & M RECORDS, INC., Plaintiff and Respondent, v. DAVID L. HEILMAN, Defendant and Appellant.\", \"head_matter\": \"[Civ. No. 48806.\\nSecond Dist., Div. Three.\\nNov. 30, 1977.]\\nA & M RECORDS, INC., Plaintiff and Respondent, v. DAVID L. HEILMAN, Defendant and Appellant.\\nCounsel\\nDavid L. Heilman, in pro. per., for Defendant and Appellant.\\nMitchell, Silberberg & Knupp, Howard S. Smith, Russell J. Frackman and David S. Gubman for Plaintiff and Respondent.\", \"word_count\": \"4919\", \"char_count\": \"30570\", \"text\": \"Opinion\\nCOBEY, Acting P. J.\\nDefendant, David L. Heilman, appeals from a judgment which: (1) incorporated the terms of an order permanently enjoining him from duplicating, advertising, shipping, or .transporting within the State of California magnetic tapes or disc phonograph records embodying any part of any recorded performance sold by A & M Records, Inc., without the consent of A & M Records, Inc., and (2) decreed an award of $136,027.82 damages and costs in favor of A & M Records, Inc. The appeal lies. (See Code Civ. Proc., \\u00a7 904.1, subd. (aj.)\\nHeilman contends that: (1) the trial court should have declined to exercise jurisdiction over this case; (2) summary judgment was improperly granted on the issue of his liability; (3) sanctions were improperly imposed in connection with discoveiy; (4) the injunctive relief granted conflicts with the commerce clause, the copyright clause, and the First Amendment to the United States Constitution; and (5) the basis for and calculation of damages were improper.\\nWe have examined these contentions and hold each of them to be without merit. Therefore we will affirm the judgment of the trial court.\\nFacts\\nA & M Records, Inc. (hereafter A & M Records) is a California corporation which commercially manufactures and sells recorded musical performances in the form of disc phonograph records and prerecorded magnetic tapes. Heilman has admitted advertising and selling record and t\\u00e1pe \\\"albums\\\" which included performances of songs duplicated from recordings manufactured by A & M Records without making payments to A & M Records or to any of the musicians involved.\\nHeilman is the founder of Economic Consultants, Inc., now known as E-C Tapes, Inc. and doing business as E-C Tape Service (hereafter E-C Tapes). He made all major decisions respecting E-C Tapes' operations, including those at issue in this case.\\nIn the latter part of 1971 Heilman and E-C Tapes began the business of advertising and selling pirated records and tapes. Records and tapes containing 16 selections were compiled for sale as \\\"albums.\\\" Fifteen recorded performances owned by A & M Records were duplicated and included without authorization in various albums sold by E-C Tapes. All of these performances were initially \\\"fixed\\\" by A & M Records and the recordings first sold to the public prior to February 15, 1972.\\nFrom 1971 through the middle of 1975 E-C Tapes made gross sales from pirated recordings of approximately $4,300,000. Gross receipts from the sale of albums, which included pirated recorded performances owned by A & M Records, were at least $729,337.11. On the basis of the percentage of A & M Records-owned performances contained on the albums sold, E-C Tapes obtained gross receipts from the sale of pirated A & M Records' performances of at least $80,000.\\nHeilman personally received at least $200,000 from the total piracy operations. In addition, E-C Tapes paid many of his personal expenses including paying for his apartment, car, and personal telephone.\\nE-C Tapes did not keep books or records breaking down sale of albums by geographical area. It was established, however, that substantial manufacturing operations were carried on in the State of California. The \\\"master\\\" recording and metal parts used to produce disc phonograph records of pirated recordings for sale to the general public, including those here in issue, were manufactured in California as well as a substantial number of the record discs themselves and the labels made for the records.\\nDuring the course of the proceedings in this case E-C Tapes twice, and Heilman once personally, violated the temporary restraining order and preliminary injunction issued by the trial court and were therefore adjudged in contempt of that court. An effort was made by Heilman to evade the restraining order and preliminary injunction in this case by, among other things, requiring customers in California to provide out-of-state addresses for \\\"trans-shipment.\\\" In addition, Heilman and E-C Tapes violated injunctions issued against them by courts of the State of Wisconsin restraining them from engaging in record or tape piracy.\\nDefendant's operations were moved into the State of Illinois, where record piracy was illegal as well, but substantial record and tape piracy was nevertheless conducted. In May 1975 the Federal Bureau of Investigation executed a search warrant in Illinois and seized a substantial portion of E-C Tapes' pirated recordings. But the record piracy operations were again commenced and were still operating at the time of trial.\\nDiscussion\\n1. Forum Non Conveniens\\nOn the eve of trial on the issue of damages, after a summary judgment establishing Heilman's liability had been granted and discovery had been completed to the extent possible, Heilman moved to dismiss or stay the proceedings pursuant to the doctrine of forum non conveniens. The motion was denied. He contends that this ruling was an abuse of the trial court's discretion.\\nWe disagree. Though Heilman did not designate for inclusion in the clerk's transcript any of the papers relating to this motion, it is clear from the record that the trial court acted within its discretion. As noted in part earlier A & M Records is a resident plaintiff, substantial manufacturing operations related to the record piracy at issue were carried on within the State of California and many of the relevant transactions occurred here. (See Thomson v. Continental Ins. Co., 66 Cal.2d 738, 742-747 [59 Cal.Rptr. 101, 427 P.2d 765].)\\n2. Summary Judgment\\nHeilman asserts that the partial summary judgment on the issue of his liability was improperly granted. Specifically he contends that: (a) the trial court did not consider his affirmative defense that A & M Records was involved in an illegal \\\"tying arrangement\\\" in violation of the Sherman Anti-trust Act, and (b) there could be no summary judgment on the issue of liability for unfair competition because it had not been established that Heilman \\\"palmed off\\\" his products as A & M Records' products.\\nA. Affirmative Defense\\nA recorded performance embodies two distinct bundles of legal rights: (1) rights in the musical composition itself, the tune and lyrics, and (2) rights in the recording \\\"fixing\\\" the performance of that musical composition. (Copyright Act of 1909 (17 U.S.C. \\u00a7 1(e) and (f) (amendment added by Pub.L. No. 92-140 (1971) 85 Stat. 391), \\u00a7 5(e) and (n) (amendment added by Pub.L. No. 92-140 (1971)), \\u00a7 12, \\u00a7 101(e), as amended by Pub.L. No. 92-140 (1971)); Heilman v. Levi (E.D.Wis. 1975) 391 F.Supp. 1106, 1108-1110; Nimmer on Copyright (1976) \\u00a7 17, 35, 108.4621, pp. 73, 146.3-146.4, 432.) Recorded performances,-however, cannot legally exist without the right to reproduce mechanically the underlying musical compositions. Early in this century it was recognized that if composers had an unlimited right to control the \\\"mechanical reproduction\\\" of musical compositions there was a danger of \\\"establishing a great musical monopoly\\\" in the mechanical reproduction of music. (H.R.Rep. No. 2222, 60th Cong., 2d Sess., p. 6 (1909).) Congress therefore incorporated into the 1909 Copyright Act a comprehensive plan to recognize the rights of composers yet \\\"prevent the establishment of a great trade monopoly.\\\" (Id. at p. 9.)\\nA key element of this plan is the compulsory licensing provision. {Id. at pp. 6-9.) Once the owner of a copyrighted musical composition permits one recording to be made of a performance of that composition, the right to record that composition becomes nonexclusive and all persons may make \\\"similar use\\\" of the musical composition, provided they comply with the statutory requirements. (Copyright Act of 1909 (17 U.S.C. \\u00a7 1(e)); Nimmer on Copyright (1976) \\u00a7 108.3, pp. 420-421.)\\nHeilman asserts that the Harry Fox Agency, apparently the representative of the owners of the compositions involved, prevented his complying with the statutory requirements by refusing his tender of the statutory royalties. He contends that this conduct constitutes an affirmative defense because it was a monopolistic illegal tying arrangement. According to Heilman, \\\"[t]he publisher of the underlying composition is simply saying to the re-re[c]order, you must buy a license from the owner of the performance before I will grant you a license for the words and music.\\\"\\nThere is significant authority, however, that record piracy is not the \\\"similar use\\\" permitted by the compulsory license provision of the Copyright Act. (See Heilman v. Levi, supra, 391 F.Supp., and the cases cited therein at p. 1110.) The logic of these cases has been criticized. (See Nimmer on Copyright (1976) \\u00a7 108.4621, pp. 431-434.3.) But even assuming the correct rule is that the owners of the copyrights to the compositions should have accepted the tender of royalties, the only result of this assumption would be that Heilman would have a defense to a copyright infringement action brought by the owners of the copyright in the musical compositions. A & M Records' action against Heilman for duplicating without consent performances embodied in A & M. Records' recordings is independent of any action that the owners of the underlying compositions might bring against Heilman for copyright infringement. In short, Heilman's so-called \\\"affirmative defense\\\" is irrelevant to A & M Records' unfair competition claim. (See Fibreboard Paper Products Corp. v. East Bay Union of Machinists, 227 Cal.App. 675, 728-729 [39 Cal.Rptr. 64].)\\nB. Unfair Competition\\nHeilman asserts that the summaiy judgment granted on the issue of his liability should be reversed because there remains a triable issue as to whether his actions constituted \\\"palming off' of A & M Records' product. (See Code Civ. Proc., \\u00a7 437c.) He contends that in order to show unfair competition it must be established that his action constituted \\\"palming off.\\\"\\nAs previously noted, Heilman has admitted, however, that without authorization he duplicated performances owned by A & M Records in order to resell them for profit. This conduct presents a classic example of the unfair business practice of misappropriation of the valuable efforts of another. Such conduct unquestionably constitutes unfair competition, even if there is no element of \\\"palming off.\\\" (Civ. Code, \\u00a7 3369, subd. (3); Barquis v. Merchants Collection Assn., 7 Cal.3d 94, 108-113 [101 Cal.Rptr. 745, 496 P.2d 817]; Capitol Records, Inc. v. Erickson, supra, 2 Cal.App.3d at pp. 536-538; Annot., Unfair Competition By Direct Reproduction of Literary, Artistic, or Musical Property, 40 A.L.R.3d 566, 569-572, 578-580.)\\n3. Discovery Orders\\nA & M Records duly noticed Heilman to produce certain documents in Milwaukee, Wisconsin, on October 22, 1975 (some six weeks before the scheduled date of trial). His deposition there was also duly noticed for two days later. Heilman failed to produce any of the documents and also refused to answer any questions of substance on the constitutional ground that his answers might tend to incriminate him. (U.S. Const., 5th Amend.; Cal. Const., art. I, \\u00a7 15.)\\nIn response to this conduct the court ordered that \\\"[defendants Economic Consultants, Inc. and David L. Heilman are precluded from introducing at trial any documents listed in plaintiff's Notice to Appear at Trial and Notice to Produce Documents at Trial filed November. 7, 1975 which they have not heretofore produced or which they do not produce at office of plaintiff's counsel in Los Angeles by 4:00 P.M. on November 26, 1975. Defendant David L. Heilman is precluded from testifying at trial respecting matters [s/c] questions respecting which he refused to answer at his deposition on October 24, 1975.\\\"\\nHeilman was apparently able to comply substantially with this order insofar as production of documents prior to trial was concerned. The order precluding Heilman from testifying at trial respecting matters upon which he had refused to answer questions in discovery was interpreted by the trial judge as limiting the scope of Heilman's testimony only, and not that of any other witness.\\nHeilman argues nevertheless that these orders were improper. He contends both that the court could not make such orders without his first disobeying a court order and that these two orders constituted an abuse of discretion. We disagree.\\nA. Failure to Produce\\nThe order employed in response to Heilman's failure to produce certain documents in discovery was a conditional order. It only prevented him from introducing these documents at trial if he, contrary to the court's order, once again failed to produce them in Los. Angeles by 4 p.m., November 26, 1975, approximately a week before the scheduled start of the trial.\\nWhen a party disobeys an order to produce documents \\\"the court may make such orders in regard to the refusal as are just.\\\" (Code Civ. Proc., \\u00a7 2034, subds. (a) and (b)(2).) So long as the penalty is appropriate to the dereliction and does not exceed the protection required to protect the interests of the party entitled to but denied discovery, its imposition is within the discretion of the trial judge. (Stein v. Hassen, 34 Cal.App.3d 294, 301 [109 Cal.Rptr. 321]; Thompson, Sanctions in California Civil Discovery (1968) 8 Santa Clara Law. 173 at p. 186.) Given the facts of this case and the imminent date of trial the court's action was appropriate, just, and within its discretion.\\nB . Preclusion of Testimony\\nThis is a case where the trial court was confronted by the \\\"difficult problem\\\" of a civil defendant who faces possible criminal, prosecution involving the same facts as the civil action. (Cf. People v. Coleman, 13 Cal.3d 867, 884-885 [120 Cal.Rptr. 384, 533 P.2d 1024].) On the one hand matters which are privileged are outside the scope of discovery and a court may not make an order compelling an individual to make responses which that person reasonably apprehends could be used in a criminal prosecution of him or which could at the least lead to evidence that might be so used. (U.S. Const., 5th Amend.; Cal. Const., art. I, \\u00a7 15; Code Civ. Proc., \\u00a7 2016, subd. (b); Evid. Code, \\u00a7 930; Maness v. Meyers (1974) 419 U.S. 449, 464 [42 L.Ed.2d 574, 587, 95 S:Ct. 584]; Black v. State Bar, 7 Cal.3d 676, 685 [103 Cal.Rptr. 288, 499 P.2d 968].) On the other hand the enactment of the Discovery Act of 1957 was intended to take the \\\"game element\\\" out of trial preparation and do away with surprise at trial. (See Greyhound Corp. v. Superior Court, 56 Cal.2d 355, 376 [15 Cal.Rptr. 90, 364 P.2d 266].) The accomplishment of this purpose compels the court to prevent a litigant claiming his constitutional privilege against self-incrimination in discovery and then waiving the privilege and testifying at trial. Such a strategy subjects the opposing party to unwarranted surprise. A litigant cannot be permitted to blow hot and cold in this manner. (Cf. Campain v. Safeway Stores, Inc., 29 Cal.App.3d 362, 365-366 [104 Cal.Rptr. 752]; see International Tel. & Tel. Corp. v. United Tel. Co. of Fla. (M.D.Fla. 1973) 60 F.R.D. 177, 186; Securities & Exch. Com'n v. American Beryllium & Oil Corp. (S.D.N.Y. 1969) 303 F.Supp. 912, 921.)\\nThe action taken by the trial court was a fair and just resolution of the problem. It was not an abuse of discretion. Heilman was precluded from testifying at trial only on matters upon which he had asserted in discovery his privilege against self-incrimination. He was not prevented from testifying concerning matters as to which he had been forthcoming nor was he prevented from presenting, documentary evidence or the testimony of other witnesses to support his defenses.\\nHeilman does not claim that the trial court's order was an inappropriate \\\"juristic consequence\\\" of his assertion in discovery of his constitutional privilege against self-incrimination. (See Shepard v. Superior Court, 17 Cal.3d 107, 116-117 [130 Cal.Rptr. 257, 550 P.2d 161]; Baxter v. Palmigiano (1975) 425 U.S. 308, 318 [47 L.Ed.2d 810, 821, 96 S.Ct. 1551].) As previously noted, though, he does assert that the court could not take such action against him without his first disobeying a court order. (See Code Civ. Proc., \\u00a7 2034, subd. (b)(2).)\\nBut Code of Civil Procedure section 2019, subdivision (b)(1) provides with respect to depositions that \\\"the court may make any . . . order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression.\\\" This section grants the court the power to protect the deposing party as well as the party deposed from oppression\\u2014here the oppression that would flow from a waiver at trial of the privilege against self-incrimination that had been asserted to block discovery. (See Thoren v. Johnston & Washer, 29 Cal.App.3d 270, 274 [105 Cal.Rptr. 276].) This interpretation is consistent with federal practice based on comparable provisions. (4A Moore's Federal Practice (2d ed. 1975) \\u00a7 37.05, fn. 14, pp. 37-95 through 37-96.)\\n4. Injunctive Relief\\nHeilman contends that the portion of the injunctions restraining him in the State of California from advertising albums for sale which included selections duplicated from recordings sold by A & M Records: (a) violated the commerce clause to the United States Constitution (U.S. Const., art. I, \\u00a7 8(3)) because it interfered with advertising on a national level; (b) violated the copyright clause to the United States Constitution (U.S. Const., art. I, \\u00a7 8(8)) because it enjoined advertisements copyrightable under the federal Copyright Act; and (c) violated his First Amendment rights (U.S. Const., 1st Amend.) by enjoining commercial speech. These contentions will be discussed seriatim.\\nA. Commerce Clause\\nAll injunctive relief against Heilman was carefully circumscribed to restrain only Heilman's activities in, or aimed at, California. But it is Heilman's contention that the injunctions violate the commerce clause by interfering with Heilman's national advertising.\\nThere is no question, however, that state action to encourage and protect intellectual and artistic efforts is a legitimate exercise of local police power. (Goldstein v. California, supra, 412 U.S. at pp. 555-559 [37 L.Ed.2d at pp. 173-175].) Exercise of such power is not improper merely because it affects interstate commerce in some way. (Head v. Board of Examiners (1963) 374 U.S. 424, 429 [10 L.Ed.2d 983, 988, 83 S.Ct. 1759].) It will be found to place an.undue burden on interstate commerce only if it: (1) discriminates against interstate commerce, or (2) operates to disrupt its required'uniformity. (Id. at p. 429 [10 L.Ed.2d at p. 988]; Huron Portland Cement Co. v. Detroit (1960) 362 U.S. 440, 448 [4 L.Ed.2d 852, 859, 80 S.Ct. 813].)\\nHere it has not been suggested that the injunction discriminates against interstate commerce per se or that such restraint would not be applied to \\\"any person\\\" who so engaged in unfair competition within the State of California. There is also no basis for concern over disrupting national uniformity, where, in this area of unfair business practices, the similarity of federal and state law itself indicates both a common purpose and the lack of any conflict with national policy. (See People ex rel. Mosk v. National Research Co. of Cal., 201 Cal.App.2d 765, 776-777 [20 Cal.Rptr. 516]; Allied Artists Pictures Corp. v. Friedman, 68 Cal.App.3d 127, 137 [137 Cal.Rptr. 94]; see also Copyright Act of 1909 (17 U.S.C. \\u00a7 1, 101(e), 104) (as amended by Pub.L. No. 92-140 (1971)) sections which were in effect at all times relevant to injunctive relief in this case.) The injunctions do not violate the commerce clause.\\nB. Copyright Clause\\nHeilman contends that the State of California cannot \\\"control\\\" his advertisements because they were copyrightable under federal law. But Heilman was enjoined from advertising his products in California because the sale of his products in California was illegal unfair competition. The challenged injunction was not an attempt to regulate imitation of copyrightable' advertisements. Nothing in the copyright law prevents California from restricting the solicitation of such illegal transactions. (See Pittsburg Press Co. v. Human Rel. Comm'n. (1973) 413 U.S. 376 [37 L.Ed.2d 669, 93 S.Ct. 2553]; contrast Jacobs v. Robitaille (D.C.N.H. 1976)406 F.Supp. 1145, 1151-1153.)\\nC. First Amendment\\nHeilman contends that the injunctions against him are unconstitutional, as it is now recognized that commercial speech is included in that categoiy of speech which receives First Amendment protection. (See Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425 U.S. 748, 762 [48 L.Ed.2d 346, 358, 96 S.Ct. 1817].) But prohibition of the solicitation of transactions which constitute illegal unfair competition raises a very different question than would the prohibition of dissemination of truthful and legitimate commercial information. (Linmark Associates, Inc. v. Willingboro (1977) 431 U.S. 85, 98 [52 L.Ed.2d 155, 165, 97 S.Ct. 1614]; Pittsburg Press Co. v. Human Rel. Comm'n., supra, 413 U.S. at pp. 388-389 [37 L.Ed.2d atpp. 678-679].) An injunction may be imposed to forbid advertisements which proposed such illegal transactions, (Ibid.; Bigelow v. Virginia (1974) 421 U.S. 809, 828 fn. 14 [44 L.Ed.2d 600, 615. fn. 14, 95 S.Ct. 2222]; Va. Pharmacy Bd. v. Va. Consumer Council, supra, 425 U.S. at p. 759 [48 L.Ed.2d at p. 357]; Carey v. Population Services International (1977) 431 U.S. 678 [52 L.Ed.2d 675, 694, 97 S.Ct. 2010].)\\n5. Damages\\n(See fn. 10.) Heilman contends that: (a) there was no basis for the constructive trust placed on Heilman's gross receipts attributable to sales of recorded performances owned by A & M Records; (b) A & M Records was not entitled to recovery of damages except on sales which occurred in California; and (c) the trial court's grant of punitive damages was in error. We hold these contentions to be without merit.\\nA. Constructive Trust\\nIt is uncontroverted that, with regard to the recordings pertinent to this appeal, A & M Records manufactured and owns the master recordings of the recorded performances duplicated by Heilman. These recorded performances are A & M Records' intangible person\\u00e1l property. (Pen. Code, \\u00a7 653h, subd. (b); Radio Corp. of America v. Premier Albums, Inc. (1963) 19 App.Div.2d 62 [240 N.Y.S.2d 995, 997]; Capitol Records v. Mercury Records Corporation (2d Cir. 1955) 221 F.2d 657, 662-663.)\\nAt the trial on the issue of damages the court determined that by rerecording and offering for sale performances owned by A & M Records, Heilman misappropriated and sold A & M Records' property. The court correctly found that such misappropriation and sale of the intangible property of another without authority from the owner is conversion. (Swim v. Wilson, 90 Cal. 126, 128 [27 P. 33]; Miller v. Rau, 216 Cal.App.2d 68, 77 [30 Cal.Rptr. 612].)\\nOn this basis the trial court entered judgment against Heilman in an amount equal to the gross proceeds attributable to the sale of recorded performances which were the property of A & M Records. One who misappropriates the property of another is not entitled to deduct any of the costs of the transactions by which he accomplished his wrongful conduct. (Ward v. Taggart, supra, 51 Cal.2d at p. 744.) When one acquires proceeds from the sale of property belonging to another the imposition of a constructive trust on the proceeds is a proper remedy. (Civ. Code, \\u00a7 2224; Church v. Bailey, 90 Cal.App.2d 501, 504-505 [203 P.2d 547]; Bogert, Trusts and Trustees (2d ed. 1960) \\u00a7 476, pp. 56-62.)\\nB.. Calculation of Damages\\nHeilman urges that a state's power to provide copyright protection is only local and cannot extend beyond its borders. He contends therefore that the calculation of damages should have been limited to Heilman's sales within the State of California.\\nBut the court did not award damages based on copyright infringement. Heilman's liability was imposed because he had engaged in unfair competition. A plaintiff suing on the basis of unfair competition has the right to seek relief for unfair competition committed in all states. (Civ. Code, \\u00a7 3333; Cal. Prune etc. Assn. v. H. R. Nicholson Co., 69 Cal.App.2d 207, 224-225 [158 P.2d 764]; Ojala v. Bohlin, 178 Cal.App.2d 292, 301-302 [2 Cal.Rptr. 919].)\\nC. Punitive Damages\\nThe evidence in this case shows a continuous and intentional pattern of misappropriation of property owned by others. (Compare Pen. Code, \\u00a7 653h.) It also shows contempt of court, hindered discovery, and an attempt to evade the injunctions of courts of this state as well as those issued by courts of Wisconsin. Under such circumstances a grant of punitive damages is clearly proper. (See Ward v. Taggart, supra, 51 Cal.2d at p. 743; Southern Cal. Disinfecting Co. v. Lomkin, 183 Cal.App.2d 431, 451 [7 Cal.Rptr. 43]; Gai Audio of N. Y., Inc. v. Columbia Broad. Sys., Inc. (1975) 27 Md.App. 172 [340 A.2d 736, 753-755].)\\nDisposition\\nThe judgment is affirmed.\\nAllport, J., and Potter, J., concurred.\\nA petition for a rehearing was denied December 28, 1977, and appellant's petition for a hearing by the Supreme Court was denied January 26, 1978. Mosk, J., did not participate therein.\\nThe injunction restrains Economic Consultants, Inc. as well as Heilman and the damage award was entered against defendants, Economic Consultants, Inc. and Heilman jointly and severally. Economic Consultants, Inc. has not appealed, however, and the judgment is final as to it.\\nHeilman's contentions are set forth in greater detail in the discussion which follows. Certain additional unmentioned contentions of his have also been considered and have been determined to be without merit.\\nWe construe the facts in the light most favorable to A & M Records, Inc. as the prevailing party below. (See Hasson v. Ford Motor Co., 19 Cal.3d 530, 544 [138 Cal.Rptr. 705, 564 P.2d 857].)\\nThe unauthorized duplication of recordings is commonly known as \\\"record piracy\\\" or \\\"tape piracy.\\\" (Goldstein v. California (1973) 412 U.S. 546, 549-550 [37 L.Ed.2d 163, 169-170, 93 S.Ct. 2303]; Capitol Records, Inc. v. Erickson, 2 Cal.App.3d 526, 528, fn. 2 [82 Cal.Rptr. 798, 40 A.L.R.3d 553]; Nimmer on Copyright (1976) \\u00a7 108.4621, pp. 431-432.)\\nThe recorded performances owned by A & M Records and duplicated by E-C Tapes were entitled: \\\"This Guys' In Love With You;\\\" \\\"Close To You;\\\" \\\"We've Only Just Begun;\\\" \\\"Do You Know What I Mean;\\\" \\\"Wild World;\\\" \\\"It's Too Late;\\\" \\\"You Were On My Mind;\\\" \\\"Guantanamera;\\\" \\\"Whiter Shade of Pale;\\\" \\\"Look Of Love;\\\" \\\"Ticket To Ride;\\\" \\\"Superstar;\\\" \\\"Moon Shadow;\\\" \\\"Hello Hello;\\\" and \\\"A Man and A Woman.\\\"\\n\\\"A sound recording is 'fixed' when the complete series of sounds constituting the work is first produced on a final master recording that is later reproduced in published copies.\\\" (37 C.F.R. \\u00a7 202.15A, subd. (b).) Since the recordings here involved were fixed and sold prior to February 15, 1972, they are not protected under federal copyright law, but are valid objects of state protection. (See Goldstein v. California, supra, 412 U.S. at pp. 552, 570 [37 L.Ed.2d at pp. 171, 181].) The Copyright Act of 1976 has no effect on the rights here in issue. (Pub.L. No. 94-553, \\u00a7 101 (1976) 90 Stat. 2572.)\\nA & M Records asserts that review of the denial of a motion to dismiss for inconvenient forum may be only by mandamus. We believe that this assertion is incorrect in light of Code of Civil Procedure section 410.30, subdivision (b). (See 1 Witkin, Cal. Procedure (1977 pocket supp.) Jurisdiction, \\u00a7 260, p. 262.)\\nWere Heilman correct in this assertion a trial court would be rendered powerless to deal with the situation. Since a court may not issue an order compelling incriminating testimony, there could be no court order for Heilman to disobey.\\nWe note also that Civil Code section 2019, subdivision (b)(1) provides in the following language for the imposition of monetary sanctions if such\\\" sanctions are deemed justified: \\\"In granting or refusing such order the court may impose upon either party or upon the witness the requirement to pay such costs and expenses, including attorney's fees, as the court may deem reasonable.\\\" (Italics added.) This language supports the interpretation that the subdivision applies to both parties.\\nHeilman also contends that the punitive damage award was excessive. He bases this contention on assertions that the award was influenced by \\\"passion and prejudice\\\" and that the trial court improperly weighed the evidence of his net worth. But because the trial court is in a better position to determine whether a judgment was influenced by passion and is vested with the power to resolve issues of credibility, a failure to move for a new trial precludes an appellant from urging for such reasons that damages were excessive. Since Heilman made no motion for a - new trial by reason of excessive damages, we may not review these contentions. (See Topanga Corp. v. Gentile, 1 Cal.App.3d 572, 577 [81 Cal.Rptr. 863]; Glendale Fed Sav. & Loan Assn. v. Marina View Heights Dev. Co., 66 Cal.App.3d 101, 122 [135 Cal.Rptr. 802].)\\nAlso, the trial court found that due to defendants' inaccurate and incomplete books it was impossible to verify their alleged expenses. The court placed the burden of proof of these expenses on the defendants pursuant to its further finding that defendants alone possessed or had available information concerning the expenses they had incurred in their piracy and sales of recordings. (See Evid. Code, \\u00a7 500; Cal. Law Revision Com. com. to Evid. Code, \\u00a7 500; Morris v. Williams, 67 Cal.2d 733, 760 [63 Cal.Rptr. 689, 433 P.2d 697].) Since the court found that defendants \\\"failed to carry their burden of proof with respect to such costs and expenses,\\\" such costs and expenses would be entirely speculative. It would therefore be inequitable on this basis as well to permit Heilman to deduct them from A & M Records' recovery. (See Ward v. Taggart, 51 Cal.2d 736, 744 [336 P.2d 534].)\\nWe note that Heilman's and E-C Tapes' record of sales contained no geographical breakdown. Additionally, as previously noted, the trial court found that Heilman's and E-C Tapes' books were incomplete and unreliable. It would be inequitable to allow Heilman to reduce the judgment by speculating as to the existence of sales outside the State of California. (Civ. Code, \\u00a7 3517.)\"}"

cal/2038978.json

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+"{\"id\": \"2038978\", \"name\": \"ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Respondent, v. RECLAMATION DISTRICT No. 404 et al., Appellants\", \"name_abbreviation\": \"Atchison, Topeka & Santa Fe Ry. v. Reclamation Dist. No. 404\", \"decision_date\": \"1916-07-22\", \"docket_number\": \"Sac. No. 2267\", \"first_page\": \"91\", \"last_page\": \"94\", \"citations\": \"173 Cal. 91\", \"volume\": \"173\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T17:39:51.448207+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Respondent, v. RECLAMATION DISTRICT No. 404 et al., Appellants.\", \"head_matter\": \"[Sac. No. 2267.\\nDepartment One.\\nJuly 22, 1916.]\\nATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Respondent, v. RECLAMATION DISTRICT No. 404 et al., Appellants.\\nReclamation District\\u2014Assessment Cannot be Collected by Ordinary Action to Recover Money.\\u2014A reclamation district has neither the right nor power to collect a delinquent assessment by an ordinary action for the recovery of a personal judgment for money.\\nId.\\u2014Enforcement of Assessment\\u2014Statutory Remedy Exclusive.\\u2014 Assessments by such a district do not have the character of a tax so as to be collectible by execution or levy upon the general property of the owner of the land against which the assessment is made. The sole method of collection is that prescribed by section 3466 of the Political Code, and that method must be followed, and is the only remedy for the failure to pay the assessment when due. Even if the statute had provided that a personal judgment could be recovered, it would have been to that extent unconstitutional.\\nId. \\u2014 Railroad Right of Way \\u2014 State is Sole Judge of Remedies Allowable to Enforce Assessment.\\u2014The fact that the land assessed is part of the right of way of a railroad which the law does not authorize to be sold for a special assessment does not warrant the court in allowing the ordinary remedy of an action at law for the recovery of a personal judgment for the delinquent assessment, as the state is the sole judge of the remedies it will afford to the district to raise money with which to make improvements.\\nAPPEAL from a judgment of the Superior Court of San Joaquin County. J. A. Plummer, Judge presiding.\\nThe facts are stated in the opinion of the court.\\nA. H. Ashley, for Appellants.\\nE. W. Camp, U. T. Clotfelter, and M. W. Reed, for Respondent.\", \"word_count\": \"1322\", \"char_count\": \"7573\", \"text\": \"SHAW, J.\\nThe complaint in this case states a cause of action to annul an assessment levied by the reclamation district to pay the cost of certain reclamation work of the district. The ground of the action was that for various reasons, not necessary here to mention, the assessment was invalid. Issues were formed, there was a trial by the court, and find ings of fact were made showing that the assessment was valid. As conclusions of law the court held that the assessment should not be annulled, but should be approved; that the same was a lien on the land against which it was assessed, but that defendants were not entitled to a personal judgment therefor against the plaintiff. Judgment was given accordingly, declaring the assessment valid and that the same constituted a lien on the land described, but \\\"that the defendants have no other or further relief herein except the right to apply, and to act under, the provisions of section 3466 of the Political Code of the state of California; and that the said defendants be, and hereby are, remitted to said special proceedings provided for in said section for any and all other relief.\\\" The defendants appeal from the portion of the judgment above quoted. The individual defendants, it may be remarked, are .the trustees of said reclamation district. The only question presented for decision upon the appeal is whether or not the reclamation district has the right and power to collect a delinquent assessment by an ordinary action for the recovery of a personal judgment for money.\\nAssessments of the kind here involved do not have the character of a tax so as to be collectible by execution or levy upon the general property of the owner of the land against which the assessment is made. Such assessments may be made upon the particular property because the improvement to be made with the money raised in that manner is presumed to benefit the property assessed to an amount at least equal to the charge against it. A reclamation district is an agency of the state, or local public corporation, for purposes of local improvement, similar in that respect to an irrigation district. That such a charge imposed by a local public corporation of that character is an assessment and not a tax was directly decided in San Diego v. Linda Vista I. D., 108 Cal. 193, [35 L. R. A. 33, 41 Pac. 291]. The law, authorizing such assessments by reclamation districts, does not provide that the district may collect the same by ordinary judgment and execution against the person owning the land assessed. Section 3466 of the Political Code prescribes the method of collection, and as no other method is authorized, it follows that the method prescribed must be followed, and is the only remedy for the failure to pay the assessment when due. Even if the statute had provided that a personal judgment could be recovered, it would have been to that extent unconstitutional. This was decided after elaborate discussion in Taylor v. Palmer, 31 Cal. 240, 254. The principle decided is that no property can be subjected to the burden of paying the cost of such local improvement except the property which is specially benefited thereby, and that to allow a resort to a personal judgment to enforce payment would, in effect, impose the burden upon property not benefited. The decision was adhered to in a number of cases immediately following it, and it has become a well-established rule. (Beaudry v. Valdez, 32 Cal. 269, 279; Guerin v. Reese, 33 Cal. 292, 296 ; Gaffney v. Gough, 36 Cal. 104; Coniff v. Hastings, 36 Cal. 292; Himmelman v. Steiner, 38 Cal. 179; Gillis v. Cleveland, 87 Cal. 217, [25 Pac. 351]; Manning v. Den, 90 Cal. 617, [27 Pac. 435]; Santa Cruz etc. Co. v. Bowie, 104 Cal. 286, [37 Pac. 934] ; Williams, Belser & Co. v. Rowell, 145 Cal. 261, [78 Pac. 725].)\\nThe appellants refer to the finding that the land in controversy is used by the plaintiff as a way upon which it has constructed and is maintaining and operating its railroad, and to the decisions of this court holding that a part of the easement or franchise of such railroad used for its right of way cannot be sold under a special assessment of this character. (Southern P. R. Co. v. Workman, 146 Cal. 80, [2 Ann. Cas. 583, 79 Pac. 586, 82 Pac. 79]; Fox v. Work, 155 Cal. 201, [100 Pac. 246]; Miller & Lux v. Enterprise etc. Co., 169 Cal. 415, 429, [147 Pac. 567] ; Schaffer v. Smith, 169 Cal. 764, 769, [147 Pac. 976].) They assert that the fee, subject to the easement, is worthless, and would bring nothing if sold separately. The court so found. Upon these premises they base the argument that the effect of the decision denying the right to a personal judgment is to deny to the district any remedy for an admitted right, and that, therefore, the court should, in such a case, allow the ordinary remedy of an action at law for the recovery of a personal judgment, or some equivalent thereof. The answer is that the state is the sole judge of the remedies it will afford to a reclamation district to raise money with which to make the improvements. If the state sees fit to withhold the means necessary to enable such district to collect an assessment, the courts are powerless to interfere. They can only enforce the remedies provided by the law governing the subject. The statute does not expressly authorize the sale of a part of the right of way through a railroad for a special assessment, and, therefore, under the rule established by the cases above cited, such sale cannot be made. This is a matter of policy within legislative control, and it is for that body, and not for the courts, to authorize such sale to enforce payment. The court below could not do otherwise than render the judgment above quoted.\\nThe judgment is affirmed.\\nSloss, J., and Lawlor, J., concurred.\\nHearing in Bank denied.\"}"

cal/2044678.json

@@ -0,0 +1 @@
+"{\"id\": \"2044678\", \"name\": \"O. J. M. FAVORITE et al., Petitioners, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, etc., et al., Respondents\", \"name_abbreviation\": \"Favorite v. Superior Court\", \"decision_date\": \"1919-09-24\", \"docket_number\": \"L. A. No. 6096\", \"first_page\": \"261\", \"last_page\": \"270\", \"citations\": \"181 Cal. 261\", \"volume\": \"181\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T18:38:30.063529+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"O. J. M. FAVORITE et al., Petitioners, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, etc., et al., Respondents.\", \"head_matter\": \"[L. A. No. 6096.\\nIn Bank.\\nSeptember 24, 1919.]\\nO. J. M. FAVORITE et al., Petitioners, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, etc., et al., Respondents.\\nProhibition\\u2014Order Changing Place of Trial op Civil Action\\u2014 Submission of Cause on Demurrer\\u2014Pacts Admitted.\\u2014Where an application for a writ of prohibition to prevent a judge of the superior court from making any order in a civil action except an order changing the place of trial to the nearest or most accessible superior court, the judge of which is not disqualified from acting, is submitted on a demurrer to the petition, the existence of the alleged facts are admitted, but other facts, though pertinent to- the prayer of the petition, cannot be considered.\\nId.\\u2014Disqualification of Judge\\u2014Ownership of Stock\\u2014Petition\\u2014Absence of Allegation.\\u2014A petition for a writ of prohibition to restrain the judge of a superior court from acting in a civil action in which a corporation is a party fails to show the existence of any direct liability of the judge as a former stockholder, where it is not alleged in the petition that he ever owned any stock, but merely recited that he had stated that he had disposed of all his stock to his wife.\\nId.\\u2014Prohibition in Equity Case\\u2014Jurisdiction of District Court of Appeal.\\u2014Under article VI of section 4 of the constitution, the district court of appeal has jurisdiction of an application for a writ of prohibition to restrain a judge of the superior court from making any order in an action in equity, other than to transfer the cause, notwithstanding the appellate jurisdiction in equity eases is, by the constitution, lodged in the first instance in the supreme court alone.\\nId.\\u2014Procedure on Disqualification of Judge.\\u2014Where a judge of the superior court is disqualified from sitting or acting in an action, it is not proper for him to deny a motion for change of place of trial, and then call in another judge to hear the case, but he should make an order, there being no other superior judge in the same county, transferring the ease as provided in section 398 of the Code of Civil Procedure.\\nId.\\u2014Corporation as Party to Action\\u2014Stockholder not Included\\u2014Construction of Code.\\u2014A stockholder in a corporation is not a \\u201cparty\\u201d to am action in which the corporation itself is a party within the meaning of subdivision 2 of section 179 of the Code of Civil Procedure, which provides that no judge shall sit or act in any action when he is related to an officer of a corporation which is a party.\\nId.\\u2014Ownership of Stock by Wife of Judge\\u2014Judge not Disqualified.\\u2014A judge of the superior court is not disqualified under subdivision 2 of section 170 of the Code of Civil Procedure from sitting and acting in a civil action in which a corporation is a party by reason of the fact that his wife owns stock in the corporation.\\nPROCEEDING in prohibition to restrain the Superior Court of Riverside County and Hugh H. Craig, Judge thereof, from making any order in a pending cause, except an order changing the place of trial to the nearest or most accessible superior court, the judge of which is not disqualified from acting.\\nApplication denied and proceeding dismissed.\\nThe facts are stated in the opinion of the court.\\nGeo. B. Bush and D. B. Chapin for Petitioners.\\nAdair & Winder for Respondents.\", \"word_count\": \"3609\", \"char_count\": \"20396\", \"text\": \"SHAW, J.\\nThis is an application for a writ of prohibition to prevent the superior court of Riverside County from proceeding in a cause pending in said court wherein the said petitioners are plaintiffs and the Security Investment Company and others are defendants. This proceeding for prohibition was begun in the district court of appeal for the second district and after decision there was transferred to this 'court for rehearing. The original petition was filed on December 16, 1918. An amended petition was filed on December 19, 1918.\\nHonorable Hugh H. Craig is the regularly elected judge of the superior court of Riverside County, before whom the cause originally came on for disposition. On December 9, 1918, the petitioners here, without notice to the other party, presented to Judge Craig, ex parte, a paper purporting to set forth a motion to change the place of trial in the action. The sole ground for the motion was stated therein as folows: \\\"On account of the disqualification of yourself to try the same.\\\" The fact which caused the disqualification referred to was not stated. Petitioners did not then file said paper, or any papers in the case, but stated to the judge that they would renew the motion on the following day. On December 10, 1918, the petitioners filed an application to change the place of trial of said cause on the sole ground that the wife of the judge was a stockholder in the said corporation and that Judge Craig was for that reason disqualified to try the cause or make any order therein other than to change the place of trial, as prescribed by section 398 of the Code of Civil Procedure. The attorneys for the defendants appeared to this motion and the hearing was postponed to December 12, 1918, on which day the parties appeared, the motion was argued by the respective attorneys and was denied by the court. It was made to appear that the wife of Judge Craig had disposed of her stock in. the corporation on December 10, 1918. On the same day Judge Craig requested Honorable J. W. Curtis, judge of the superior court of San Bernardino County, to sit for him on the following day for the purpose of disposing of the said cause. On December 13,1918, Judge Curtis presided in the said court and the said cause was called for further proceedings. Thereupon the petitioners objected to any further proceedings therein and moved the court to change the place of trial thereof upon the ground that the wife of Judge Craig was a stockholder in the defendant corporation during the pendency of the action at all times prior to December 10, 1918; that on ' December 9, 1918, the petitioners had made the application above mentioned to Judge Craig; that they had filed a motion for change of place of . trial on December 10, 1918, as above stated; that the matter was heard on December 12, 1918, at which time it had been denied by Judge Craig. This application was heard by Judge Curtis, then presiding in the court, and, after argument, was denied. Thereupon, as before stated, this proceeding in prohibition was instituted against said superior court, and also against Hugh H. Craig, as presiding judge thereof. The object of the proceeding is to restrain the said court from making any order in the said cause except an order changing the place of trial to the nearest or most accessible superior court, the judge of which is not disqualified from trying the same.\\nThe cause was submitted on a demurrer to the petition. The facts alleged are therefore admitted to exist. But other facts, though pertinent to the prayer of the petition, cannot be considered.\\nUpon the argument here, it was stated that Judge Craig had been the owner of stock in the corporation de- ' fendant prior to June 13, 1917, and it was urged that he was and continued thereafter to be disqualified by reason of such fact, so long as his direct liability as a stockholder continued to exist. On this point we need only say that neither in the petition nor in the notice of motion is it alleged that he ever owned any stock in said corporation. The mere recital of the fact that Judge Craig had stated \\\"that he had disposed of all his stock in said corporation to his wife,\\\" is not an allegation of the fact of ownership. It cannot be regarded as such allegation, and particularly in view of the fact that it is not assigned either in the petition or in any motion addressed to the superior court as ground for the application to change the place of trial. Nor can statements made by counsel in argument, or statements in an affidavit filed in behalf of the respondent, cure the lack of a material allegation in the petition. This court, therefore, cannot consider the effect of such ownership, if, as a matter of fact, Judge Craig ever did own such stock. The decision of the ease must depend wholly on the effect of the alleged and admitted fact that his wife was the owner thereof at the time the application was made to the court when Judge Craig was presiding therein, to change the place of trial.\\nThere is no merit in the motion of respondent to quash the writ of prohibition issued by the district court. The motion was based on the claim that the case before the superior court was an action in equity\\u2014a case in which appellate jurisdiction is, by the constitution, lodged in the first instance, in the supreme court alone (Const., art. VI, sec. 4), from which fact, it is argued, an original proceeding in prohibition to prevent action by the superior court in such a case is cognizable only in the supreme court. This assumption is not correct. The same section of the constitution gives equal and concurrent jurisdiction to the district courts and to the supreme court to issue writs of prohibition in all proper cases. So far as jurisdiction to do so is concerned, the questions of appellate jurisdiction and of the nature of the action in which the act sought to be prohibited is threatened, are entirely immaterial. As a matter of policy and practice, both this court and the district courts, respectively, have at times refused to take jurisdiction of an original proceeding where the case involved was in the superior court and was originally appealable to the other court.' (Collins v. Superior Court, 147 Cal. 264, [81 Pac. 509]; Estate of Turner, 39 Cal. App. 56, [177 Pac. 854].) But this practice was not adopted because of any. want of original jurisdiction in such cases in either court. This was expressly stated in the Collins case.\\nIf the fact that the wife of Judge Craig owned stock in the corporation on December 10, 1918, when the application was filed and presented to him as judge of the superior court, is sufficient to disqualify him from sitting or acting as judge in that action, there is no doubt, under our decisions, that it was his duty, upon the fact being established, to grant the application and make an order transferring the case as provided in section 398 of the Code of Civil Procedure (Livermore v. Brundage, 64 Cal. 299, [30 Pac. 848]; Krumdick v. Crump, 98 Cal. 119, [32 Pac. 800].) There was but one judge of the superior court of Riverside, County and hence the rule stated in Oakland v. Oakland etc. Co., 118 Cal. 249, [50 Pac. 268], that an action could be retained and tried by another judge of the same court, does not apply. If his disqualification depends upon a fact not within the knowledge of the judge, as might be the case, power to determine from the evidence whether or not the fact existed would be implied from the necessity of the case, but when established, the mandate of section 398 would certainly apply and be imperative, as was held in said cases, leaving him no discretion in the matter. It is true, as was said in Paige v. Carroll, 61 Cal. 215, that if, before the motion was made, the disqualified judge had called in another judge, not disqualified, to sit for him in the cause, the judge so called in could properly deny the motion to change the place of trial. But in this case Judge Craig did not call in Judge Curtis to sit in the cause until after he had denied the motion, and therefore, as said in Upton v. Upton, 94 Cal. 28, [29 Pac. 411], it was \\\"his duty to grant it,\\\" instead of denying the motion and thereafter calling in the judge. (See, also, Barnhart v. Fulkerth, 59 Cal. 130; Finn v. Spagnoli, 67 Cal. 330, [7 Pac. 746].) The first question presented on the merits, therefore, is whether or not the ownership of the stock by his wife at the time the motion was regularly presented to him operated to disqualify him from trying the case.\\nThe claim that the fact that the wife is a stockhdlder disqualifies the husband from trying the ease as judge rests upon the following language of section 170 of the Code of Civil Procedure: \\\"No justice, judge, or justice of the peace shall sit or act as such in any action or proceeding: 1. To which he is a party or in which he is interested; 2. When he is related to either party, or to an officer of a corporation which is a party, or to an attorney, counsel, or agent of either party, by consanguinity or affinity, within'the third degree, computed according to the rules of law. \\\" A provision follows for the waiver by the parties of such disqualification under subdivision 2. It is not material here.\\nThe argument is that the wife, as holder of corporate stock, is the owner of an interest in the corporation; that the corpo ration represents her in such action and acts for her protection and benefit, and consequently that she is a \\\"party\\\" to the action, within the meaning and scope of the fiyst clause of subdivision 2. That a stockholder is not technically a party cannot be doubted. \\\"Where a corporation sues or is sued in its corporate name, the action is by or against the corporation itself as a legal entity, and its members are not in any legal sense parties to the action.\\\" (1 Clark & Marshall on Corporations, p. 15.) It is only where the corporation defendant refuses to defend the action, or having begun a defense, it is made to appear that it will not prosecute the defense in good faith, that a stockholder may, upon a proper application showing the facts, be allowed to become a party and defend on behalf of the corporation. He must show that he cannot induce those in control of the corporation to do that which is right in the matter. (Waymire v. San Francisco etc. Ry. Co., 112 Cal. 650, [44 Pac. 1086]; 2 Clark & Marshall on Corporations, p. 1690.) Hence the use of the word \\\"party\\\" in the clause relied on does not signify that the ownership of stock by a person related to the judge within the prohibited degree disqualifies the judge from trying a case against the corporation. The succeeding clause clearly indicates that the legislature intended that it should not have that effect, for that clause states the fact which the legislature must be presumed to have considered necessary to disqualify the judge where a corporation is a party. It limits the disqualification to cases where the relative is an officer of the corporation. The rule of construction that the expression of one thing excludes all others applies, and it is therefore to be presumed that the legislature did not intend to create a disqualification by reason of the relationship of the judge to any person connected with the corporation except an officer thereof. That this is the proper construction of a statute prohibiting action by one who is related to a party to the suit is well established. It was directly held under a statute precisely like ours in this respect that the judge was not disqualified by his relationship to a stockholder. (Searsburgh T. Co. v. Cutler, 6 Vt. 322.) And a statute prohibiting a sheriff or constable from serving process in a case to which he is a party, or is related to a party, does not apply to prevent him from serving process in a case where a corporation is a party and he is a stockholder therein. (Adams v. Wicasset Bank, 1 Me. 365, [10 Am. Dec. 88]; Merchants' Bank v. Cook, 21 Mass. (4 Pick.) 415.) The supreme court of Maine in the above case stated the reasons in very apt and convincing language as follows: 11 The argument arising from inconvenience is very strong. Shares are continually changing owners; and a corporation of this kind, if disposed to be evasive, might by frequent and secret transfers, abate every process commenced against them.\\\" - These reasons apply with greater force to the present case. If the corporations of this state could disqualify a judge and obtain a change of the place of trial whenever some relative of the judge within the third degree.was or should become a stockholder of such corporation, it might be made very difficult, as against many corporations, to find a judge or a court where the cause to which such corporation was a party could be tried. No great effort of the imagination is necessary to perceive the consequences of such a rule. In many cases it would operate to defeat justice. We are satisfied, therefore, that the subdivision should not be construed so as to include the stockholder as a party where the corporation only is named as such.\\nThe petitioner relies on the decision in Howell v. Budd, 91 Cal. 342, [27 Pac. 747], in support of his position. In that case the sons of the judge were the vendees of certain persons claiming heirship to an estate under an executory contract by which such heirs agreed to convey to the sons an interest in the estate, in consideration of their services as attorneys in establishing the heirship. The decision in the case would settle the question of such heirship. The sons were therefore as much interested in the controversy as the parties themselves. Upon a distribution they would not be improper parties and would have a right to appear in respect to their personal interests. The general notice of the proceeding to, be given to all persons would be notice to them as well as to every other person who claimed any interest in the estate. In view of this direct interest as compared with the remote and indirect interest of the stockholders of a corporation, and because of the provisions of the section itself above referred to implying the contrary intention in the case of -corporations, we do not think this case should be extended to include cases like the one at bar. Our conclusion, therefore, is that Judge Craig was not disqualified to act in the matter by rea son of Ms wife's ownersMp of stock in the corporation defendant.\\nWe have shown that there is no allegation in the petition to the effect that Judge Craig was himself at any time a stockholder in said corporation. Inasmuch as it may be claimed that his ownership was a matter within his personal knowledge and that he should have taken cognizance thereof at the mere suggestion, it may be proper to present some further considerations on the subject. Upon the hearing in the district court of appeal an affidavit of Judge Craig was filed by the respondents showing that he had not been the owner of any stock in the corporation since the date of June 13, 1917. There is no information obtainable from the record to show that ownership at that date would disqualify him. The cause was submitted, as we have said, upon a demurrer to the petition. The petition does not set forth the complaint in the action pending in the superior court, nor purport to state the substance thereof. No evidence was introduced at the hearing, either in the district court or in this court, as to the character of said action or as to the allegations of the complaint therein. The petitioners in their briefs set forth what purports to be a statement of some of the facts alleged in said complaint. As these Tacts were not alleged, we cannot take notice of them when presented in this manner. It is true that the liability of a stockholder for the debts and liabilities of the corporation is direct and is created as soon as the corporate debt or liability is contracted or incurred (Const., art. XII, sec. 3), so that, if the liability involved in the action was contracted or incurred prior to the disposition by Judge Craig of his stock, as stated in his affidavit, he might still be interested in the action and be disqualified by subdivision 1 of section 170. But there can be no presumption in tMs case that such liability did exist at that time, for we have no facts upon which it could be predicated. Hence, the contention that he is disqualified by reason of his own interest is not sustained by the allegations or proof.\\nIt may properly be suggested that there is no good reason for further contention in the court below upon this subject. By calling in Judge Curtis, Judge Craig has already indicated his intention not to try the case. If it is improper for him to do so, or to choose the judge, under the actual circumstances of the case as they may appear, the objection can easily be obviated by requesting the Governor to designate the judge to try the case.\\nThe application for a peremptory writ of prohibition is denied and the proceeding is dismissed.\\nWilbur, J., Olney, J., Lawlor, J., Lennon, J., Melvin, J., and Angellotti, C. J., concurred. \\u00ab\"}"

cal/2046629.json

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+"{\"id\": \"2046629\", \"name\": \"THE PEOPLE, Respondent, v. VICTORIO CABALLERO, Appellant\", \"name_abbreviation\": \"People v. Caballero\", \"decision_date\": \"1919-05-12\", \"docket_number\": \"Crim. No. 647\", \"first_page\": \"146\", \"last_page\": \"153\", \"citations\": \"41 Cal. App. 146\", \"volume\": \"41\", \"reporter\": \"California Appellate Reports\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T19:50:43.755777+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PEOPLE, Respondent, v. VICTORIO CABALLERO, Appellant.\", \"head_matter\": \"[Crim. No. 647.\\nSecond Appellate District, Division One.\\u2014\\nMay 12, 1919.]\\nTHE PEOPLE, Respondent, v. VICTORIO CABALLERO, Appellant.\\n[l] Criminal Law\\u2014Murder\\u2014Evidence\\u2014Proof of Corpus Delicti.\\u2014 In this prosecution for murder there was sufficient proof that the person alleged to have been murdered was actually dead, that he was killed by a pistol shot, and that the shot was fired from a pistol in the hands of the defendant or of one of his two confederates at the time and place in question.\\n1. Character and sufficiency of proof of corpus delicti in prosecution for homicide, notes, 68 L. E. A. 57, 73, 75-78; 7 L. E. A. (N. S.) 181.\\nId.\\u2014Eight of Defendant to Counsel\\u2014Eeasonable Postponement\\u2014Discretion of Magistrate.\\u2014When the charge against a defendant is called for preliminary examination before the committing magistrate, and the defendant, upon being advised with reference to his right to counsel, replies that his cousin will come to his aid and secure an attorney for him, and thereupon the hearing is postponed thirteen days, at which time the defendant appears in court without counsel, it cannot be said that the committing magistrate abuses the discretion vested in him when half an hour after the time set for hearing on the latter date he determines that he has waited a reasonable time for the appearance of counsel for the defendant at that hearing.\\nId.\\u2014Testimony of Witness at Preliminary Hearing\\u2014Absence from State\\u2014Sufficiency of Foundation.\\u2014In a prosecution for the crime of murder, sufficient foundation for the introduction in evidence of the testimony of a witness taken at the preliminary hearing is established when it is shown that the witness is stationed at a specified army cantonment which is located in another state.\\nId.\\u2014Proof of Homicide\\u2014Question for Jury\\u2014Instructions.\\u2014 An instruction \\u201cthat upon a trial for murder, the commission of the homicide 6y the defendant being proved, the burden of proving circumstances of mitigation or that justify or that excuse it devolves upon him,\\u201d is not erroneous, and does not charge the jury with respect to matters of fact.\\n2. Eight of accused person to benefit of counsel before pleading, note, Ann. Gas. 1918D, 100.\\nAPPEAL from a judgment of the Superior Court of San Diego County, and from an order denying a new trial. T. L. Lewis, Judge. Affirmed.\\nThe facts are stated in the opinion of the court.\\nE. F. Du Fresne for Appellant.\\nU. S. Webb, Attorney-General, and Joseph L. Lewinsohn, Deputy Attorney-General, for Respondent.\", \"word_count\": \"2575\", \"char_count\": \"15043\", \"text\": \"CONREY, P. J.\\nThe defendant was convicted of the crime of murder and sentenced to imprisonment for life. He appeals from the judgment and from an' order denying his motion for a new trial.\\nThe court received in evidence the testimony \\u00f3f one W. A. Wiedenheck, taken at the preliminary examination before the magistrate, it appearing that at the time of the trial' in the superior court Wiedenbeck was absent from the state of California, being at that time at Camp Lewis, Washington, in the service of the government of the United States. It was shown by this testimony that on the fourteenth day of March, 1914, Frank Yolney Johnston, the man alleged to have been killed at that time, was the manager of a store at Tecate, in San Diego County. The witness was assistant postmaster, and clerk in the store. A postoffice was located in the store. Between 8 o'clock and half-past 8 o'clock on the evening of that day, while Johnston was sitting in the postoffice and the witness was in the store, three men came to the door and one of them fired a shot at the witness. Two of these men threw down the witness and tied his arms behind him, while another ran over to the postoffice and \\\"covered'-' Johnston. When the two men had tied the witness they ran out, and as they ran out there was one more shot fired. Then they came back and took the witness to the postoffice, where the safe was, and demanded that he open the safe, which, however, he did not do. During these proceedings the witness recognized the defendant by his eyes and by his voice. The men were masked with bandanna handkerchiefs.\\nThere was another witness who approached the store after the shots were fired and saw a man robbing the till in the store, whom he recognized as the defendant. A' few minutes later the store was found to be on fire and it was destroyed by the fire. In the debris of the store after the fire there were found the remains of a human body. The head and limbs were burned off so that the body could not be recognized as that of any known person. Through the heart there was a hole which the evidence tends to show was produced by a bullet. Wiedenbeck testified that he never saw Johnston again after the fire; nor is there any witness who claims to have seen him alive after that time.\\nAppellant claims that the verdict is contrary to law in that there was not sufficient proof of the corpus delicti. He claims that there is no proof that Johnston, the person alleged to have been murdered, was actually dead. In our opinion, there is no merit in this contention. The surrounding circumstances shown by the evidence, together with the direct testimony of Wiedenbeck to which we have referred, strongly tend to prove that the dead body found after the fire was the body of-Johnston; that he was killed by a pistol-shot, and that the shot was fired from a pistol in the hands of the defendant or of one of his two confederates at the time and place in question.\\nAppellant contends that the court erred in overruling his objection to the introduction in evidence of the deposition of the witness Wiedenbeck. It is provided by the Penal Code, section 686, subdivision 3, that \\\"where the charge has been preliminarily examined before a committing magistrate and the testimony taken down by question and answer in the presence of the defendant, who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness; . . . the deposition of such witness may be read, upon its being satisfactorily shown to the court that he is dead or insane, or cannot with due diligence be found within the state.\\\"\\nWhen the district attorney offered in evidence the testimony of Wiedenbeck taken at the preliminary examination, counsel for defendant made his objection as follows: \\\"I wish to enter my objection to the introduction of that testimony on the ground that it is incompetent, and in violation of the constitutional rights of this defendant. The defendant was brought before the justice of the peace, and the defendant demanded the services of counsel, and the court denied defendant the services of counsel and went ahead with the preliminary examination.\\\" The proceedings before the justice of the peace were shown to be as follows: On July 2, 1918, the charge against the defendant being called for preliminary examination before the justice of the peace, a shorthand reporter and an interpreter in the Spanish language were duly appointed and qualified. The complaint was read and was translated to the defendant in Spanish by the interpreter. The court asked defendant if he had an attorney, and defendant replied, \\\"My cousin will come to my aid and secure an attorney for me.\\\" The court informed the defendant that if defendant had an attorney he was entitled to have him attend at all stages of the proceedings and that defendant was entitled to have a peace officer deliver a message to any attorney he might designate, free of charge. Thereupon the hearing was continued until the fifteenth day of July, 1918. At that time the defendant appeared unaccompanied by counsel, and informed the court that he was waiting for Attorney Valenzuela, who had told defendant that he \\\"had to be here.\\\" The court replied that Valenzuela knew that the case was set, as he had examined the record, and knew that the case was set for 2 o'clock, whereas it was now half-past 2. The court thereupon directed that the hearing proceed. It was under these circumstances and at that hearing that the testimony of Wiedenbeck was taken. The defendant being asked if he wanted to ask the witness any questions, replied that he had to have Valenzuela so that he could ask the questions.. The result was that no cross-examination was had. In addition to the foregoing facts shown by the record of testimony and proceedings before the committing magistrate, the district attorney testified that at said time of the preliminary examination the defendant claimed that Mr. Valenzuela was his attorney. \\\"We got Mr. Valenzuela; it was some time after half-past 2, about the time of the taking up of the preliminary examination. Mr. Valenzuela came down and said he was not- going to represent Mm, and would not represent him; he wanted him to, but he was not willing to do it\\\"; that the defendant did not ask to have any other counsel sent for on that occasion.\\n'The magistrate allowed the defendant a reasonable time to send for counsel and postponed the examination for that purpose, in full compliance with the requirements of section 859 of the Penal Code. Section 860 of that code says: \\\"If the defendant requires the aid of counsel, the magistrate must, immediately after the appearance of counsel, or if, after waiting a reasonable time therefor, none appears, proceed to examine the case.\\\" We are unable to say that the committing magistrate abused the discretion vested in him when he determined that he had waited a reasonable time for the appearance of counsel for the defendant at that hearing.\\nThe case is in very definite contrast with that of People v. Napthaly, 105 Cal. 641, [39 Pac. 29], where it was held that the court erred in refusing to set aside an information upon the ground that the defendant had not been legally committed by any magistrate before the filing of the information; it having been made to appear that at the preliminary examination before the magistrate the defend ant was not represented by any counsel and that the magistrate refused to continue the examination for the purpose of enabling him to employ counsel, and entirely failed to inform the defendant of his rights as required by the provisions of the Penal Code. Counsel for appellant claims that due diligence was not exercised to produce the witness Wiedenbeck at the trial of this case. The obvious reply is that when it was shown that Wiedenbeck was without the state of California, by showing he was at that time at Camp Lewis in the state of Washington, the district attorney was discharged from further obligation to produce the witness at the trial, since there was no legal process by which he could have compelled such attendance. We hold, therefore, that sufficient foundation was established for the introduction in evidence of Wiedenbeck's testimony at the preliminary examination, and that the court did not err in overruling defendant's objection thereto.\\nAn instruction, which we will call the eighteenth instruction, to the jury was as follows: \\\"You are further instructed that upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation or that justify or that excuse it devolves upon him unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter or that the defendant was justifiable or excusable.\\\" Appellant points out that this instruction was wholly inapplicable and was not based on any fact or issue in the case. This criticism is justified by the fact that unquestionably under the evidence either the defendant was guilty of murder in the first degree or he was not guilty at all, and his sole contention was that he had not committed the crime and was not present when the acts were perpetrated. Evidently recognizing this as the true state of the case, the court at a time when the jury had been recalled at its request for another purpose withdrew that instruction and directed that the jury \\\"treat that instruction as if it had never been given; give it no consideration whatever in seeking to reach a verdict.\\\"\\nAppellant further criticises the instruction as being an indirect comment on the facts, in violation of section 19 of article VI of the state constitution, which provides: \\\"Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law.\\\" The instruction given is in the language ,of section 1105 of the Penal Code. In People v. Grill, 151 Cal. 592, [91 Pac. 515], where the same instruction was given, it was claimed by appellant that the phrase, \\\"the commission of the homicide by the defendant being proved,\\\" constituted an intimation or statement by the court that the fact that the defendant intentionally fired the shot had been proven. But the court said that the signification of the clause was the samie as if the sentence began thus: \\\"When upon a trial for murder the commission of the homicide \\\"by the defendant has been proved,\\\" etc. It was held that thus understood the clause did not constitute a statement of fact by the court. The case was there distinguished from People v. Tapia, 131 Cal. 647, [63 Pac. 1001], which is relied upon by appellant here. In People v. Grill, supra, the supreme court further noted that in other instructions the jury had been told that they were the exclusive judges of the facts, and that the prosecution must show defendant's guilt and every fact essential to a conviction beyond a reasonable doubt, together with other proper instructions given. Whereupon the supreme court said: \\\"In view of these instructions it would be impossible for any jury of ordinary intelligence to have supposed that the instruction complained of was intended to state to them that the fact that the defendant had committed the homicide had been proven.\\\" So in the case at bar the court clearly instructed the jury that it was their exclusive province to determine the facts from the evidence; that with questions of fact, the weight of evidence and the credit to be given to witnesses, the court had nothing to do; and that the burden was upon the prosecution to establish defendant's guilt beyond a reasonable doubt. We are of the opinion that even if the court could not cure a supposed erroneous instruction by withdrawing the same when the jury was recalled (as appellant here contends, but which we do not concede), the instruction itself, when reasonably understood and interpreted in connection with the other instructions given, was not erroneous and the giving thereof would not constitute ground for reversal of the judgment. In People v. Wilt, 173 Cal. 477, [160 Pac. 561], referring to an instruction like that in question here and containing the phrase \\\"the commission, of the homicide by the defendant being proved,\\\" the supreme court said: \\\"Ordinarily this language could not fairly be held to have any such signification\\\" as that the court was intimating an opinion or belief that the homicide had been proved.\\nThe judgment and order are affirmed.\\nShaw, J., and James, J., concurred.\"}"

cal/2058331.json

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+"{\"id\": \"2058331\", \"name\": \"NORMA F. BOSSI et al., Plaintiffs and Appellants, v. THE STATE OF CALIFORNIA, Defendant and Respondent\", \"name_abbreviation\": \"Bossi v. State\", \"decision_date\": \"1981-04-30\", \"docket_number\": \"Civ. No. 19387\", \"first_page\": \"313\", \"last_page\": \"325\", \"citations\": \"119 Cal. App. 3d 313\", \"volume\": \"119\", \"reporter\": \"California Appellate Reports, Third Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T23:17:01.891574+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"NORMA F. BOSSI et al., Plaintiffs and Appellants, v. THE STATE OF CALIFORNIA, Defendant and Respondent.\", \"head_matter\": \"[Civ. No. 19387.\\nThird Dist.\\nApr. 30, 1981.]\\nNORMA F. BOSSI et al., Plaintiffs and Appellants, v. THE STATE OF CALIFORNIA, Defendant and Respondent.\\nCounsel\\nDavid B. Mogilefsky for Plaintiffs and Appellants.\\nRichard G. Rypinski, Gordon I. Baca, Richard A. Wehe and George L. Cory for Defendant and Respondent.\", \"word_count\": \"3722\", \"char_count\": \"22668\", \"text\": \"Opinion\\nCARR, J.\\nPlaintiffs appeal from a judgment entered on a jury verdict for defendant State of California (hereafter State) and against plaintiffs in their action for damages for personal injuries sustained in a vehicle-pedestrian collision. For reasons which appear, the judgment is affirmed.\\nThe collision occurred January 2, 1977, at about 12:15 p.m. on a steep and icy portion of State Route 267, just outside the Tahoe Basin. Plaintiffs' vehicle, driven by John Bossi, husband of Norma Bossi, was traveling northbound on State Route 267 over the Brockway Summit. It was snowing at the time and the Bossi vehicle was equipped with tire chains. As plaintiffs' vehicle descended the summit it suddenly slid across the highway, coming to rest diagonally in the southbound uphill lane. Moments later another vehicle came down the summit, slid out of control, following the same trajectory as the Bossi vehicle, and collided with the Bossi vehicle.\\nNorma Bossi walked over to the second vehicle, and while standing in the southbound lane of the highway was struck by a third vehicle which also slid out of control after cresting the summit, following the trajectory of the two preceding vehicles.\\nThe Bossis sued the California Department of Transportation (Cal-trans) for negligent highway maintenance, contending proper snow and ice control procedures had not been followed, resulting in a dangerous condition of public property. (Gov. Code, \\u00a7 835.)\\nI\\nPlaintiffs initially challenge the validity of the jury verdict. A special verdict form was submitted to the jury for each plaintiff, which set forth, in pertinent part, the following interrogatories and directions:\\n\\\"Question No. 1. Was State Route 267 in a dangerous condition at the location and time of the injury to plaintiff? If you have answered 'no' to Question No. 1, you shall not answer any further questions. If you have answered 'yes' to Question No. 1, then answer the next question. Question No. 2a. Was the dangerous condition created by a negligent or wrongful act or omission of an employee of the State of California? Question No. 2b. Did the State of California have actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition? If you have answered 'no' to Questions Nos. 2a and 2b, you shall not answer any further questions. If you have answered 'yes' to either Questions Nos. 2a or 2b, then answer the next question.\\\"\\nTo question No. 1 the jury answered \\\"Yes\\\"; to question Nos. 2a and 2b the jury answered \\\"no.\\\" At appellants' request, the jury was polled. Nine jurors said the verdicts read in open court were their verdicts, three said otherwise.\\nAfter the jury were discharged, and the verdict entered, plaintiffs moved for a new trial on the ground the verdicts were inherently invalid. In support of the motion, plaintiffs offered the declaration of one of the three dissenting jurors, to the effect that nine identical jurors did not vote in favor of all of the above three answers; that of the nine jurors who voted \\\"no\\\" to questions No. 2a and No. 2b. Three of them voted \\\"yes\\\" on question No. 1. The motion was denied.\\nAppellants assert the verdict and judgment thereon is inherently invalid and not legal, relying on Borns v. Butts (1979) 98 Cal.App.3d 208, 210 [159 Cal.Rptr. 400] and cases therein cited. Respondent contends 1) the attempted impeachment of the jury verdict is improper; 2) the right to a jury poll in each question in the special verdict form was waived by appellants' failure to request such a poll, and 3) the verdict is valid since the same nine jurors agreed on the questions necessary to sustain a defense verdict\\u2014whether the State was negligent or had notice of the alleged dangerous condition of the roadway.\\nWe agree that appellants' attempted impeachment of the verdict is improper.\\nSection 1150, subdivision (a) of the Evidence Code provides: \\\"(a) Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.\\\" (Italics added.)\\nThe significant words are \\\"of such a character as is likely to have influenced a verdict improperly....\\\" While Evidence Code section 1150, subdivision (a) and People v. Hutchinson (1969) 71 Cal.2d 342 [78 Cal.Rptr. 196, 455 P.2d 132] have considerably broadened the rule of the admissibility of jurors' affidavits, there is preserved the distinction between proof of overt acts, objectively ascertained and proof of the subjective reasoning processes of individual jurors which can neither be corroborated nor disproved. The former is proper impeachment, the latter is not. In the instant case, appellants seek to impugn the verdict which nine jurors in open court stated was their verdict by a conclusionary declaration of one juror. The declaration was not offered to demonstrate \\\"improper influences\\\" upon the jury verdicts but to attack the validity of the jury poll and to show the mental processes of the jurors. As such it was incompetent evidence to impeach the jury verdicts.\\nIn Silverhart v. Mount Zion Hospital (1971) 20 Cal.App.3d 1022, 1029-1030 [98 Cal.Rptr. 187, 54 A.L.R.3d 250], upon a second polling of the jury, a vote of 10 to 2 in favor of the verdict was found. Plaintiff attempted to impeach the verdict with a declaration by one juror that three-fourths of the jurors were not in agreement with the verdict when they were called in to announce a verdict. In rejecting this declaration as inadmissible impeaching evidence, the court stated: \\\"... In the present case the juror's declaration was inadmissible because it showed only her mental processes and those of her fellow jurors, and the subjective considerations which influenced her verdicts. [Citations omitted.] The subject declaration by only one juror purports to impeach the mental processes of her fellow jurors by the unsupported conclusionary statements that 'In truth, three-fourths of such jurors at that time were not in agreement as to a verdict in this action' . As already pointed out, the circumstances surrounding the return of the verdict are devoid of any coercion.\\\" (Italics added.)\\nA similar result obtained in Continental Dairy Equip. Co. v. Lawrence (1971) 17 Cal.App.3d 378 [94 Cal.Rptr. 887].\\nOn appropriate motion, the declaration of juror John Brooks should have been stricken by the trial court. We therefore simply consider it incompetent to impeach the verdict and affirm the trial court.\\nAppellants' response to the contention of waiver is that Code of Civil Procedure section 618 does not specifically provide for a separate poll on each question when there is a special verdict form and counsel was unaware he had the right to request it. In Silverhart v. Mount Zion Hospital, supra, 20 Cal.App.3d 1022, the court noted at page 1029: \\\"In considering plaintiff's contention, we first observe that no objection was made by plaintiff's counsel to the polling procedure at the time the jury was polled, nor did her counsel suggest that the jury be sent out again on the ground that more than one-fourth of the jurors disagreed with the verdict as returned. If plaintiff's counsel was not satisfied with the polling procedure, or if he believed that the jury was still confused, he should have complained immediately. Since any impropriety could have been cured if raised on time, the failure to object amounted to a waiver of the alleged impropriety or error. .\\\"\\nAppellants' effort to distinguish Silverhart as a general verdict and the instant case as a special verdict case is unavailing. Whether a general or special verdict, section 618, Code of Civil Procedure, places the burden on the party litigant to request a poll of all or any part of a verdict. The language of section 618 that \\\"Either party may require the jury to be polled\\\" compels this conclusion.\\nII\\nAppellants' second point on appeal is that the trial court erred in refusing to submit to the jury an instruction pertaining to negligence per se. In their brief appellants state: \\\"Plaintiffs requested the Court to instruct the jury on negligence per se for violation of a statutory duty (BAJI No. 3.45).\\\" However, there is no indication in the record that BAJI No. 3.45 was submitted to the court. Appellants did request BAJI No. 11.52, which instructs as to liability of a public entity for failure to discharge a mandatory duty, pursuant to section 815.6 of the Government Code. It was not error for the court to refuse that instruction.\\nAn instruction regarding liability under section 815.6 of the Government Code is appropriate only if the public entity is under a mandatory duty to perform an act. The jury was instructed that: \\\"It is the law of California, as enacted by the State Legislature, in Streets and Highways Code Section 91, that Caltrans has a duty to maintain the state highways.\\\" Section 27 of the Streets and Highways Code defines the meaning of \\\"maintain\\\" as used in section 91. Section 27 provides, inter alia, that: \\\"The degree and type of maintenance for each highway, or portion thereof, shall be determined in the discretion of the authorities charged with the maintenance thereof, taking into consideration traffic requirements and moneys available therefor.\\\" By definition, highway maintenance involves considerable discretion. The department is not required by law to simultaneously repair every portion of highway under its jurisdiction. It must allocate its limited resources according to various priorities. Although it may be argued that in a general sense, the department is under a mandatory duty to improve and maintain the state highways, pursuant to section 91 (Sts. & Hy. Code), its statutory duty with respect to maintaining a specific location, at a given time, is discretionary under section 27. (Sts. & Hy. Code.) The court properly refused to instruct the jury as to liability under section 815.6 of the Government Code.\\nIII\\nAppellants contend the trial court erred by instructing the jury as to weather-immunity, as provided by Government Code section 831 and argue \\\"the liability imposed under Government Code section 815.6 takes precedence over the immunity provisions of Government Code section 831\\\" citing Morris v. County of Marin (1977) 18 Cal.3d 901, 917 [136 Cal.Rptr. 251, 559 P.2d 606], Morris held when a public entity is under a mandatory duty to perform a.specific function it may not escape liability for its failure to perform that function by claiming statutory immunity. As we have indicated, sections 91 and 27 of the Streets and Highways Code do not set forth a mandatory duty to maintain a specific location at a given time. Unlike Morris v. County of Marin, supra, 18 Cal.3d 901, no such statutorily prescribed, mandatory duty applies to the facts of this case. The instruction as to weather-immunity is not objectionable under Morris v. County of Marin, supra.\\nRespondent contends that any error with respect to the instruction as to weather-immunity is moot because the jury never reached the issue. The jury was provided special verdict forms containing eight questions, with instructions directing the jury how to proceed after answering each question. The affirmative defense of weather-immunity (Gov. Code, \\u00a7 831) was embodied in questions 4a and 4b. The jury never reached the issue because it found in favor of the State of California on questions 2a and 2b. After questions 2a and 2b were the following directions: \\\"If you answer 'no' to Questions 2a and 2b you shall not answer any further questions. If you answered 'yes' to either Questions Nos. 2a or 2b, then answer the next question.\\\" In compliance with the directions, the jury did not proceed beyond questions 2a and 2b.\\nRespondent points out the reasoning of this court in Murrell v. State of California ex. rel. Dept. Pub. Wks. (1975) 47 Cal.App.3d 264, 271 [120 Cal.Rptr. 812], is appropriate here. Murrell arose out of a dangerous condition case in which both general and special verdict forms were submitted to the jury. The jury returned a verdict in favor of the defendant. On appeal, the plaintiff argued the court had erred in rejecting two of plaintiff s proposed instructions, and in giving a modified jury instruction on causation. We stated the following: \\\"Plaintiff's attack on BAJI No. 379, as remodeled and given the jury, is an abstraction. This appeal, like others, illustrates the merit of special jury verdicts as aids to appellate review. Here the trial court submitted a special interrogatory to the jury; in response, the jury expressly found that the state highway had not been in a dangerous condition or, in equivalent terms, that the state had not been negligent. Thus the jurors were able to reach the general verdict without reference to the causation issue. If indeed BAJI No. 3.79 beckoned to error within the realm of causality, the jury did not enter the realm.\\\" (Id. at p. 271. Fn. omitted.)\\nWe are satisfied that it was not error for the court to instruct with regard to section 831 of the Government Code; nevertheless the question is moot as the jury reached its verdict without entering the realm of weather-immunity.\\nIV\\nAt trial, appellants sought to introduce into evidence certain portions of two volumes of a maintenance manual published by Caltrans. Chapter XX of volume I, titled \\\"Snow Removal and Ice Control,\\\" was admitted into evidence. Volume II contains 19 programs, one of which is titled \\\"10 program (Snow Removal and Ice Control).\\\" The court excluded the \\\"10 Program\\\" as irrelevant. Respondent had successfully argued that the \\\"10 Program\\\" did not set forth a standard of conduct\\u2014 as argued by appellants, but rather, it set forth standards or scheduling values solely for budgetary purposes. Appellants now contend the evidence was erroneously excluded.\\nIf the manual serves a purpose other than providing budgetary guidelines for supervisorial personnel, the record fails to so indicate. In support of their respective contentions regarding the purpose of the \\\"10 Program\\\" both parties refer to the testimony of Elmo Meister, a retired deputy director of Caltrans. The testimony supports respondent's characterization, that the \\\"10 Program\\\"establishes standards or values for budgetary purposes.\\nIn their brief, appellants state that Mr. Meister identified the publication as setting forth \\\"work standards.\\\" The characterization \\\"work standards\\\" is found in the following excerpt of the direct examination of Mr. Meister by appellants' counsel: \\\"Q. What is the Ten Program about?\\n\\\"A. The Ten Program is one of 19 programs for the maintenance management system and it deals with the establishment of standards or values for budgetary purposes.\\n\\\"Q. And the Ten Program also sets work standards?\\n\\\"A. (No response.)\\n\\\"Q. What did you say?\\n\\\"A. Yes. Right.\\nAlthough counsel's terminology was acceded to by the witness, the meaning of the words \\\"work standards\\\" was left unexplained and unexplored. The clear thrust of Mr. Meister's testimony supports the ground upon which the objection was sustained. There was no error.\\nV\\nFinally, appellants contend the court erred in not allowing them to introduce a prior inconsistent statement contained in a March 18, 1977, deposition of the driver of the vehicle which struck Norma Bossi.\\nThe driver, Walter Rempfer, was not a party to the lawsuit, apparently having previously settled a separate lawsuit with Norma Bossi. At the time of trial Mr. Rempfer was residing in Idaho and not available to testify in person. Due to his anticipated unavailability for trial, a video-taped deposition of Mr. Rempfer was taken on October 20, 1979, in Reno, Nevada. This deposition was offered into evidence by appellants and shown to the jury. After presentation of the video-taped testimony, appellants offered evidence of a prior inconsistent statement contained in a deposition given by Mr. Rempfer in his capacity as defendant in the previous action brought by the Bossis. Specifically, the statement sought to be introduced was one in which Mr. Rempfer said that he did not know if his truck had been hit from the rear. That statement was inconsistent with the subsequent video-taped testimony in which he stated he knew he was hit in the rear. The court sustained respondent's objection to the admission of the prior inconsistent statement. We concur with the trial court that a proper foundation had not been laid.\\nSection 770 of the Evidence Code requires the exclusion of a prior inconsistent statement unless \\\"the witness was so examined while testifying as to give him an opportunity to explain or deny the statement.\\\"\\nAt the second deposition, appellants' counsel was aware: (1) that Mr. . Rempfer had made prior inconsistent statements; (2) that Mr. Rempfer would probably be unavailable at trial; (3) that he intended to introduce the video-taped testimony of the deposition of October 20, 1979; (4) that he intended to introduce inconsistent statements from the deposition of March 18, 1977. Appellants' counsel had ample opportunity to question the declarant with respect to the specific inconsistency, but intentionally omitted to do so despite opposing counsel's suggestion that he take advantage of the opportunity.\\nThe only opportunity given Mr. Rempfer to explain or deny the statement occurred when appellants' counsel handed him a copy of the 60-page transcript of the prior deposition. After Mr. Rempfer looked through the transcript, counsel asked: \\\"Have you familiarized yourself with it?\\\" Mr. Rempfer answered that he had read some of the questions. Counsel then asked, \\\"Now, at that time and place, were all of these questions asked and all of these answers given?\\\" Mr. Rempfer answered, \\\"Oh, yes definitely.\\\" Appellants urge that no greater \\\"opportunity\\\" was provided the witness in People v. Morgan (1978) 87 Cal.App.3d 59 [150 Cal.Rptr. 712], yet the reviewing court in Morgan upheld the admission of certain inconsistent statements. We disagree. In Morgan the witness was asked if she had not made specific statements a few days before taking the stand. (Pp. 70-71.) In the case at bar, counsel's broad reference to a deposition of some length taken 18 months prior failed to provide Mr. Rempfer with a realistic opportunity to explain or deny any specific statement contained therein.\\nThe judgment is affirmed.\\nParas, Acting P. J., and Evans, J., concurred.\\nGovernment Code, section 815.6 provides: \\\"Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.\\\"\\nGovernment Code, section 831 provides: \\\"Neither a public entity nor a public employee is liable for an injury caused by the effect on the use of streets and highways of weather conditions as such. Nothing in this section exonerates a public entity or public employee from liability for injury proximately caused by such effect if it would not be reasonably apparent to, and would not be anticipated by, a person exercising due care. For the purpose of this section, the effect on the use of streets and highways of weather conditions includes the effect of fog, wind, rain, flood, ice or snow but does not include physical damage to or deterioration of streets and highways resulting from weather conditions.\\\"\\nPertinent excerpts of the direct examination of Mr. Meister by plaintiffs' counsel follows:\\n\\\"Q. Is Chapter 20 of the Maintenance Manual the only published guideline for ice control?\\n\\\"A. Chapter 20 is part of the Maintenance Manual and is the guideline dealing with snow removal and ice control.\\n\\\"Q. Now, there are some other published guidelines, aren't' there?\\n\\\"A. In Caltrans?\\n\\\"Q. Yes.\\n\\\"A. For the application of materials and the procedures and policies?\\n\\\"Q. Yes.\\n\\\"A. I believe those are the only guidelines I know of. Up there it's snow and ice removal and ice control.\\n\\\"Q. What's this book?\\n\\\"A. That is the column two of the Maintenance Manual which deals with the maintenance management system.\\n\\\"Q. Is it known as the Ten Program?\\n\\\"A. Yes.\\n\\\"Q. Could you turn out the Ten Program?\\n\\\"A. Wait.\\n\\\"Q. Do you have it?\\n.\\\"A. Yes.\\n\\\"Q. What is the Ten Program about?\\n\\\"A. The Ten Program is one of 19 programs for the maintenance management system and it deals with the establishment of standards or values for budgetary purposes.\\n\\\"Q. And the Ten Program also sets work standards?\\n\\\"A. (No response.)\\n\\\"Q. What did you say? \\\"A. Yes. Right.\\n\\\"Q. And what employees actually does the Ten Program get distributed to?\\n\\\"A. Well, I thought that it went to the operators, but since\\u2014I've found it goes to the maintenance supervisors.\\n\\\"Q. The supervisors get a copy of the Ten Program?\\n\\\"A. Correct. And as I understand, copies are distributed to each maintenance station and are available to the operators.\\\" After a brief discussion, the \\\"10 Program\\\" is marked for identification.\\n\\\"Q. By Mr. Mogilefsky: Let me make sure I have got everything. What does this have to do with snow removal and ice control for Caltrans?\\n\\\"A. It has the scheduling values or work standards.\\n\\\"Q. It's a management tool?\\n\\\"A. It's a management tool in the practices and procedure document.\\n\\\"Q. What is its actual function?\\n\\\"A. It's a statewide standard and the- man-hours per mile. I believe that's how it's listed in there. It's used as a guide to the management people for their work efforts as far as man-hours are concerned. It can be used for all standards for all districts in the State.\\\"\\nFurthermore, the excluded material is substantially similar to that contained in volume I, which was received into evidence.\\nState of California was not a party to that action.\\nUnless the witness has not been excused from giving further testimony\\u2014a condition which obviously could not be met in this case.\"}"

cal/2061693.json

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+"{\"id\": \"2061693\", \"name\": \"In re QUINTUS W., a Person Coming Under the Juvenile Court Law; THE PEOPLE, Plaintiff and Respondent, v. QUINTUS W., Defendant and Appellant\", \"name_abbreviation\": \"People v. Quintus W.\", \"decision_date\": \"1981-06-18\", \"docket_number\": \"Crim. No. 38633\", \"first_page\": \"640\", \"last_page\": \"646\", \"citations\": \"120 Cal. App. 3d 640\", \"volume\": \"120\", \"reporter\": \"California Appellate Reports, Third Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T01:10:37.002534+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In re QUINTUS W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. QUINTUS W., Defendant and Appellant.\", \"head_matter\": \"[Crim. No. 38633.\\nSecond Dist., Div. Five.\\nJune 18, 1981.]\\nIn re QUINTUS W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. QUINTUS W., Defendant and Appellant.\\nCounsel\\nQuin Denvir, State Public Defender, under appointment by the Court of Appeal, and Ernest Martinez, Deputy State Public Defender, for Defendant and Appellant.\\nGeorge Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Shunji Asari and William R. Pounders, Deputy Attorneys General, for Plaintiff and Respondent.\", \"word_count\": \"1732\", \"char_count\": \"10484\", \"text\": \"Opinion\\nHASTINGS, J.\\nQuintus W. appeals from a juvenile order of wardship (Welf. & Inst. Code, \\u00a7 602) upon a finding that he was guilty of carrying upon his person a dirk or dagger in violation of Penal Code section 12020, subdivision (a), a misdemeanor. The court ordered that appellant may not be held in physical confinement for a period to exceed one year and that he was to be placed on home probation in his mother's home. He appeals, contending (1) that the kitchen knife found on his person was not a \\\"dirk or dagger\\\" within the meaning of Penal Code section 12020; (2) that his extrajudicial statements regarding his intended use of the kitchen knife were immaterial and should have been excluded; (3) that his extrajudicial statements were improperly admitted since the corpus of the crime was not independently proven; and (4) that the minute orders must be modified to reflect that the court found the offense to be a misdemeanor.\\nAt approximately 3:30 p.m., on May 5, 1980, Officer Voge saw appellant writing on the wall of a building and stopped his police car. Appellant looked in the officer's direction, then began to walk away. Voge told appellant to stop and place his hands behind his neck. (It was stipulated that the officer had probable cause to detain appellant and reasonable cause to conduct a search.) During a pat-down search, the officer recovered from appellant's right rear pocket a white handled steak knife with a blade four and five-eighths inches long. As the knife was taken from him, he said, \\\"Hey, man, that's my knife. I carry it for protection. There are some dudes trying to jack me up.\\\"\\nAppellant argues that the trial court erred in finding that \\\"the unaltered kitchen knife\\\" was a \\\"dirk or dagger\\\" within the meaning of Penal Code section 12020.\\nAlthough the code does not define \\\"dirk or dagger,\\\" the courts have provided a general definition which has been consistently followed. In Bills v. Superior Court (1978) 86 Cal.App.3d 855, 859 [150 Cal.Rptr. 582], the court noted: \\\"In six appellate decisions we find this quote: 'A dagger has been defined as any straight knife to be worn on the person which is capable of inflicting death except what is commonly known as a \\\"pocketknife.\\\" Dirk and dagger are used synonymously and consist of any straight stabbing weapon, as a dirk, stiletto, etc. (Century Diet.) They may consist of any weapon fitted primarily for stabbing. The word dagger is a generic term covering the dirk, stiletto, poniard, etc. (Standard Diet.)' [Citations.]\\\"\\nAs appellant correctly points out, not every knife is \\\"a dirk or dagger.\\\" However, that determination is a question for the trier of fact to determine. (People v. Bain (1971) 5 Cal.3d 839, 851 [97 Cal.Rptr. 684, 489 P.2d 564].)\\nIn his argument, appellant incorrectly seizes upon and emphasizes that portion of the definition which states: \\\"They may consist of any weapon fitted primarily for stabbing;\\\" converts the permissive word \\\"may\\\" into the mandatory word \\\"shall;\\\" magnifies the use of the word \\\"primarily\\\" and asserts that the \\\"logical and reasonable test\\\" of a dirk or dagger must be \\\"whether it is a weapon designed primarily for stabbing.\\\"\\nThe prevailing definition, relevant to knives, is that a dagger is any straight knife to be worn on the person which is capable of inflicting death, except the pocketknife. (See People v. Bain, supra; People v. Shah (1949) 91 Cal.App.2d 716, 720 [205 P.2d 1081] [seven-inch spring-blade knife was a dagger because blade locked in place]; People v. Ruiz (1928) 88 Cal.App. 502, 504 [263 P. 836] [partially filed bayonet was a dagger].) Bain involved a folding knife with a pointed five-inch-long blade with dull beveled sides that could be locked into position when opened manually. Because the knife could be folded, and because a pocket knife is not a dirk or dagger, the court held it to be a close question of fact whether the knife was a dirk or dagger. In People v. Ferguson (1970) 7 Cal.App.3d 13 [86 Cal.Rptr. 383], the court held that an ordinary kitchen butcher knife, having a wooden handle and an eight-inch blade, had the characteristics of \\\"a stabbing and cutting weapon,\\\" and thus, the determination of whether it was a dirk or dagger was properly left for the jury to determine. The court in People v. Villagren (1980) 106 Cal.App.3d 720 [165 Cal.Rptr. 470], also held that the jury properly found that a \\\"hunting knife\\\" with a four and three-eighths inch-long relatively straight blade was a dirk or dagger.\\nIn In re Robert L. (1980) 112 Cal.App.3d 401, 404 [169 Cal.Rptr. 354], the court, in concluding that the trial court was justified in its determination that an ice pick fell within the statutory proscription, relied upon principles set forth in People v. Grubb (1965) 63 Cal.2d 614 [47 Cal.Rptr. 772, 408 P.2d 100], wherein it was observed that \\\"The Legislature's understandable concern with the promiscuous possession of objects dangerous to the lives of members of the public finds manifestation in section 12020. . [If] . The Legislature here sought to outlaw the classic instruments of violence and their homemade equivalents; the Legislature sought likewise to outlaw possession of the sometimes-useful object when the attendant circumstances, including the time, place, destination of the possessor, the alteration of the object from standard form, and other relevant facts indicated that the possessor would use the object for a dangerous, not harmless, purpose. [Citation.] [If] Thus we hold that the statute embraces instruments other than those specially created or manufactured for criminal purposes; . \\\" (Id. at pp. 620-621.)\\nIn contrast, in People v. Forrest (1967) 67 Cal.2d 478 [62 Cal.Rptr. 766, 432 P.2d 374], it was held that an oversized two-bladed pocketknife was not a dirk or dagger as a matter of law because the blades did not lock into place, thus severely limiting its effectiveness as a stabbing instrument. And in Bills v. Superior Court, supra, 86 Cal.App.3d 855, the court concluded that a pair of unaltered barber scissors could not be a dirk or dagger because \\\"scissors are never designed as weapons [but] . only for use as a cutting tool\\\" and they \\\"are not fitted primarily for stabbing.\\\" (Id. at p. 861.) Bills recognized that a pair of barber scissors could be used as a stabbing weapon and as such could inflict a fatal wound. However, \\\"a pair of barber scissors as constructed\\\" does not have \\\"the characteristics of a stabbing weapon.\\\" (Italics added.) (Id. at p. 860.)\\nThus, it appears from an examination of the above cases that, depending on their characteristics and capabilities for stabbing and cutting, some objects present a question of fact as to whether they are a \\\"dirk or dagger,\\\" whereas others are considered a \\\"dirk or dagger\\\" as a matter of law.\\nHere, appellant had concealed on his person in his back pocket a kitchen knife with a blade that was four and five-eighths inches long. Clearly, this had the characteristics of a stabbing and cutting weapon and could be capable of inflicting a fatal wound. (See People v. Villagren, supra, 106 Cal.App.3d 720, 727; People v. Ferguson, supra, 1 Cal.App.3d 13, 19.) At the time the officer found the knife appellant stated \\\"Hey, man, that's my knife. I carry it for protection. There are some dudes trying to jack me up.\\\" As the court concluded in In re Robert L., supra, 112 Cal.App.3d 401, 405, \\\"Nothing further was necessary to show the instrument though 'conceived for peaceful purposes, . was wrapped in the indicia and circumstance of probable assault.' (People v. Grubb, supra, 63 Cal.2d 614, 622; .)\\\"\\nContrary to appellant's contention, appellant's statement to the officer, \\\"Hey man, that's my knife. I carry it for protection . \\\" was material to show that appellant carried the knife knowingly and with the intent to use it for a \\\"dangerous . purpose.\\\" (People v. Grubb, supra, 63 Cal.2d at p. 620; In re Robert L., supra, 112 Cal.App.3d 401, 405.) Although Shah stated the actual intent to use a knife as a deadly weapon is immaterial to the offense charged, the court also held that \\\"[evidence as to knowledge of [the knife's] nature and character would be admissible to show that carrying the weapon concealed was not justifiable or excusable.\\\" (91 Cal.App.2d 716, 719.)\\nDefendant also contends that his extrajudicial statements were erroneously admitted prior to the establishment of the corpus delicti of the crime. The record shows, however, that the corpus delicti had been established. Only \\\"rather slight or prima facie proof\\\" is necessary to establish the corpus delicti necessary before admission of a confession. (People v. Mehaffey (1948) 32 Cal.2d 535, 545 [197 P.2d 12].) Here, appellant was found to have a steak knife concealed in his back pocket. He was not eating or near a restaurant. Depending on the circumstances in which this knife was possessed, it could be a \\\"dirk or dagger\\\" within Penal Code section 12020. Thus, the prosecution had established the corpus delicti before appellant's statements were admitted.\\nAppellant is correct in his contention that the minute order of July 21, 1980, erroneously reflects that the offense was a felony and the minute order of August 18, 1980, fails to reflect that the offense was specifically declared by the court to be a misdemeanor. In fact, the offense had been charged as a misdemeanor.\\nThe minute order of July 21, 1980, is modified by striking therefrom the following words \\\"The offense is a felony\\\" and by adding thereto \\\"The offense is a misdemeanor.\\\" The minute order of August 18, 1980, is modified to reflect that the offense was declared to be a misdemean- or. In all other respects, the order is affirmed.\\nStephens, Acting P. J., and Ashby, J., concurred.\\nAppellant's petition for a hearing by the Supreme Court was denied August 12, 1981. Kaus, J., did not participate therein.\"}"

cal/2062980.json

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+"{\"id\": \"2062980\", \"name\": \"HALFHILL TUNA PACKING COMPANY (a Corporation), Appellant, v. FISHERMEN'S EXCHANGE SUBSCRIBERS (an Unincorporated Association), Respondent\", \"name_abbreviation\": \"Halfhill Tuna Packing Co. v. Fisherman's Exchange Subscribers\", \"decision_date\": \"1920-12-01\", \"docket_number\": \"Civ. No. 3443\", \"first_page\": \"231\", \"last_page\": \"233\", \"citations\": \"50 Cal. App. 231\", \"volume\": \"50\", \"reporter\": \"California Appellate Reports\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T17:21:49.953480+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HALFHILL TUNA PACKING COMPANY (a Corporation), Appellant, v. FISHERMEN\\u2019S EXCHANGE SUBSCRIBERS (an Unincorporated Association), Respondent.\", \"head_matter\": \"[Civ. No. 3443.\\nSecond Appellate District, Division One.\\nDecember 1, 1920.]\\nHALFHILL TUNA PACKING COMPANY (a Corporation), Appellant, v. FISHERMEN\\u2019S EXCHANGE SUBSCRIBERS (an Unincorporated Association), Respondent.\\nInsurance\\u2014Action on Policy\\u2014Operation of Boat Outside Designated Territory\\u2014Evidence\\u2014Nonliability for Loss.\\u2014In this action to recover on a policy insuring plaintiff\\u2019s boat against loss by fire \\u201cwhile operated\\u201d in certain designated waters north of a given island, the fire and loss having occurred at a certain cove located on the east side of said island and outside the designated waters, the trial court properly concluded that the loss was not covered by the policy, notwithstanding the evidence showed that such cove was the only anchorage available for the use of fishermen who made a practice of fishing in that vicinity.\\nAPPEAL from a judgment of the Superior Court of Los Angeles County. J. P. Wood, Judge. Affirmed.\\nThe facts are stated in the opinion of the court.\\nAnderson & Anderson for Appellant. '\\nF. A. Knight for Respondent.\", \"word_count\": \"711\", \"char_count\": \"4273\", \"text\": \"CONREY, P. J.\\nAction to recover on a policy insuring property against loss by fire. Judgment in favor of the defendant, from which judgment the plaintiff appeals.\\nThe policy insured plaintiff's boat against loss by fire \\\"while operated in the Pacific Ocean south of Monterey Bay on the north, east of 123 degrees west, and north of San Martin Island on the south. ' ' The fire and loss occurred at Hassler's Cove, which is located on the east shore of San Martin Island and near the southerly end of that shore. Evidence was introduced to show that Hassler's Cove is the only anchorage west of the coast available for the use of fishermen in packing their catch, and that it was the custom of fishermen in the vicinity of San Martin Island to anchor in that cove for that purpose; that about fifteen of the boats belonging to members of defendant association (of whom the plaintiff was one) made a practice of fishing in the vicinity of that island, and all of them used Hassler's Cove for the purpose of packing their fish.\\nBasing their argument upon these facts, counsel for appellant seek to establish respondent's liability by the application of two principles: First, that policies of insurance are to be liberally construed in favor of the assured; second, that a policy of insurance must be construed with relation to those established usages and customs with reference to which the insurance has been issued and which are known to the insurer. Giving full recognition to these principles, and without discussion of the interesting decisions referred to in the briefs, nevertheless we think that they furnish no ground for reversal of the judgment in this case. \\\"The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.\\\" (Civ. Code, sec. 1638.) \\\"When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible; subject, however, to the other provisions of this title.\\\" (Civ. Code, sec. 1639.) The \\\"other provisions,\\\" however, are not applicable to clear and explicit terms of a contract freely entered into without any attendant circumstances of fraud, mistake or accident. The evidence to the effect that fishermen in the described neighborhood were accustomed to pack their fish at Hassler's Cove is not evidence connected in any way with this contract of insurance. No attempt was made to show a custom that for the purposes of insurance, or for any purpose, defendant association or any of its members have ever construed the phrase \\\"north of San Martin Island\\\" as inclusive of Hassler's Cove, or that settlements of loss have been made on that basis. The plain fact' is that the destruction of the vessel did not occur north of that island, and the conclusion necessarily follows that the loss was not covered by the policy.\\nThe judgment is affirmed.\\nShaw, J., and James, J., concurred.\\nA petition to have the cause beard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 27, 1921.\\nAngellotti, C. J., Shaw, J., Lawlor, J., Wilbur, J., and Lennon, J., concurred.\\nOlney, J., voted for granting a rehearing.\"}"

cal/2063912.json

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+"{\"id\": \"2063912\", \"name\": \"THE PEOPLE, Plaintiff and Respondent, v. MELVIN EDWARD CAMPBELL, Defendant and Appellant\", \"name_abbreviation\": \"People v. Campbell\", \"decision_date\": \"1981-04-30\", \"docket_number\": \"Crim. No. 36864\", \"first_page\": \"588\", \"last_page\": \"598\", \"citations\": \"118 Cal. App. 3d 588\", \"volume\": \"118\", \"reporter\": \"California Appellate Reports, Third Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T18:51:36.663712+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PEOPLE, Plaintiff and Respondent, v. MELVIN EDWARD CAMPBELL, Defendant and Appellant.\", \"head_matter\": \"[Crim. No. 36864.\\nSecond Dist., Div. Four.\\nApr. 30, 1981.]\\nTHE PEOPLE, Plaintiff and Respondent, v. MELVIN EDWARD CAMPBELL, Defendant and Appellant.\\nCounsel\\nCharles B. Johnson for Defendant and Appellant.\\nGeorge Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, John R. Gorey and Robert R. Anderson, Deputy Attorneys General, for Plaintiff and Respondent.\", \"word_count\": \"2768\", \"char_count\": \"16965\", \"text\": \"Opinion\\nWOODS, J.\\nAppellant, together with codefendants Vernon Brooks and Pamela Miller, was charged in count I with possession of heroin for sale, in violation of Health and Safety Code section 11351, and in count II with possession of cocaine for sale, in violation of Health and Safety Code section 11351. In count III appellant was charged with possession of a sawed-off shotgun, in violation of Penal Code section 12020. Appellant pleaded not guilty.\\nTwo motions to suppress evidence under Penal Code section 1538.5 and a motion under Penal Code section 995 were denied. Appellant's motion to traverse the search warrant was also denied. Appellant withdrew his plea of not guilty to count III and pleaded guilty thereto, whereupon the People dismissed counts I and II of the information. Appellant was placed on probation for a period of four years. Appellant appeals the denial of his motions under Penal Code sections 995 and 1538.5.\\nThe issues presented are whether the appellant was properly detained for investigation or whether the detention constituted an arrest, and whether there was probable cause for arrest.\\nI\\nOfficers Welch and Davenport testified that a surveillance was commenced on appellant's residence on Via Madera in Altadena as part of an ongoing investigation of a narcotics ring trafficking between Los Angeles, Chicago, Cleveland and Detroit.\\nOfficer Welch testified that his investigation revealed that appellant had been the subject of two federal Drug Enforcement Administration investigations and that he had also been the subject of a previous Los Angeles Police Department investigation. The LAPD investigation was claimed to have discovered that an out-of-town narcotics dealer was picked up at the Los Angeles International Airport by appellant Campbell and taken directly to Campbell's residence within the previous month. Neither Welch nor Davenport had ever been involved in an investigation of Campbell before.\\nWithin 30 minutes of the commencement of the surveillance, appellant left his residence and went to some property which he owned on Ganesha Street. Codefendant Brooks came to appellant's residence and, after speaking to a lady he met there, he drove to 850 Orange Grove, followed by Officer Davenport. He picked up several articles at this address and then drove about the town, up and down side streets, making numerous U-turns, stopping, backing up, and finally arriving at the Ganesha Street property. Officer Davenport testified that Brooks drove in the manner of someone trying to \\\"detect a surveillance.\\\"\\nBrooks walked empty handed into the residence at Ganesha, came out, looked up and down the street and then left a few minutes later carrying a brown paper bag which he repeatedly secreted from passersby. Appellant was with him. Each man got into his own car and drove to appellant's residence on Via Madera. Brooks entered carrying the brown paper bag which he again secreted from passing motorists. A few moments later, appellant and Brooks left carrying three pieces of luggage which they placed in appellant's car. Both men got in and Brooks drove away.\\nOfficer Davenport testified that, for the next hour and one-half, Brooks drove about as if he were again trying to detect surveillance. Officer Welch's testimony tended to corroborate the testimony of the defendants and their witnesses, to the effect that they spent sometime at a pool hall and had dinner before driving directly to the Los Angeles International Airport.\\nUpon arriving at the airport, Brooks and appellant separated. Officer Davenport followed Brooks. Officer Welch followed appellant, who purchased a ticket for Cleveland, checked his luggage and proceeded to the boarding area where he was stopped by Welch who identified himself as a police officer and advised appellant that he was being detained as part of a narcotics investigation. The officer had his gun drawn and appellant was told to put his hands on the wall. The officer replaced his gun in his waistband, and a pat-down search was conducted.\\nOfficer Welch told appellant that he wanted to talk to him and inspect his luggage, and that if no narcotics were found he would be free to go. Appellant agreed. The entire conversation lasted about one minute. Officer Welch testified that he firmly believed that people involved in narcotics trafficking had weapons; he knew that people involved in this investigation had been killed.\\nAppellant was handcuffed and told by the officer, this is for your safety and mine. \\\"I don't think there is going to be any problem, and I'm not going to embarrass you. I'll just handcuff you in front of you, and I'll put your jacket in front of you [sz'c] your handcuffs.\\\" The appellant is said to have responded, \\\"That's fine with me.\\\" Officer Welch contends that he did not regard appellant as under arrest, and that he did not use the term arrest in his statements to the appellant. There was one other officer with Welch at that time.\\nWhen asked if he had any luggage, appellant said no. He also said that his wife had dropped him off at the airport and that he was traveling alone.\\nThe officers walked appellant over to the baggage area where they met Officer Davenport who had defendant Brooks handcuffed. The luggage was retrieved and all parties were taken to the office maintained at the airport by the narcotics division. Officer Welch testified that defendants were taken there rather than to the Los Angeles Police Department's substation because they were not under arrest. The substation was a part of the same building, however, located in the middle of the airport within five minutes' walking distance of the luggage section.\\nUpon arriving at the office, Officer Welch told appellant that he would like to search the luggage for narcotics or contraband, but that appellant did not have to allow the search. He explained that the alternative was that he would contact a judge and attempt to get a search warrant. Appellant gave permission for the one suitcase which he had checked to be searched, and the search revealed only personal effects. Officer Welch then told appellant, \\\"[A]s soon as we were done with Mr. Brooks I'd get them both back to the airport, if Mr. Brooks didn't have any narcotics.\\\" Appellant was then taken to a holding tank in the substation, where he could \\\"sit there and smoke, you know, whatever he wanted to do, . \\\"\\nOfficer Welch testified that Brooks consented to a search of his luggage and provided him with the keys. Six ounces of cocaine and a kilo of heroin were found. Vernon Brooks testified that he was told he was under arrest at the time that he was first stopped and that the keys to the luggage were seized in the pat-down search. He denied that he ever consented to the search.\\nAfter Brooks and appellant had been placed under arrest, appellant consented to a search of his residence where a sawed-off shotgun was found.\\nII\\nAppellant argues that all of the indicia of arrest were present in this case, that the action of the officers in approaching the suspect with drawn guns, conducting a pat-down search, handcuffing him and transporting him to the office of narcotic administration and ultimately a holding tank cannot be justified as necessary to a reasonable detention in the investigation of a narcotics case.\\nThe trial court found that a special exigency exists at airports, that the situation is substantially different from a detention which occurs at a residence or a residential street, and \\\"that despite the appearance of the actions as being too precipitous, that is drawing guns and searching at the point of detention, initially, the court is of the view that under the circumstances then existing . . . the original detention was a detention, despite appearances, .\\\"\\nWhere, as here, an officer approaches an individual believing that that person may be involved in criminal activity, that contact is subject to the rules of detention. In holding that certain activity rises to the level of \\\"detention,\\\" the court is merely concluding that the activity is subject to legal scrutiny in light of the Fourth Amendment's command of reasonableness. (In re Tony C. (1978) 21 Cal.3d 888, 892 [148 Cal.Rptr. 366, 582 P.2d 957].)\\nThe question here is whether the degree of restraint employed exceeded reasonable restraint to detain and escalated into an arrest, contrary to the finding of the trial court; and if so, was there probable cause to arrest. An arrest requires probable cause to believe a specific crime has been committed. A detention requires a lesser showing of probable cause to believe nonspecific criminal activity is afoot. (In re Tony C., supra, 21 Cal.3d at p. 892.)\\nThe one consistency throughout all of the cases discussing this subject is that each of these cases must be decided on its own facts. It is therefore necessary to examine each element of this occurrence to determine its reasonableness.\\nOfficer Welch first approached appellant with a drawn gun and proceeded to conduct a pat-down search. An officer is justified in making a pat-down search if he has objective cause to believe that the suspect is armed or that the search is necessary for the officer's own safety. (People v. Thomas (1971) 16 Cal.App.3d 231, 234 [93 Cal.Rptr. 877].) Officer Welch articulated his belief that the appellant was armed and justified this belief by testifying that there had been killings in connection with this investigation. This statement was neither objected to nor rebutted. The argument that appellant had been through a metal detector and therefore the officer's fear for his safety was unjustified, is fallacious. The appellant cannot substantiate his contention that \\\"the officer knew he had no weapons.\\\" As noted by the respondent, there has been no showing that metal detectors are foolproof, and the armed highjackings of aircraft tend to belie this contention.\\nThe officer's concern for his safety also justified his approaching the appellant with a drawn weapon. Officer Welch had reason to believe that appellant was a member of a ring trafficking in large quantities of narcotics. He was warranted in approaching the appellant with caution. When appellant did not react violently to being accosted, Officer Welch immediately replaced his gun in his belt before patting down the appellant. This conduct did not constitute restraint beyond that which is necessary for temporary detention.\\nNext, Officer Welch asked appellant how he had gotten to the airport, and appellant responded that his wife had brought him. He also asked him if he was traveling alone, and appellant responded that he was. Officer Welch knew that appellant had been driven to the airport by Brooks and that they were traveling together, each of them having taken luggage from the trunk of appellant's car.\\nOfficer Welch then asked appellant if he would accompany him to where appellant's luggage was located so that they could continue the investigation. The officer stated that he did not think there was going to be any trouble, but that he was going to handcuff the appellant \\\"for your safety and mine.\\\" The appellant is said to have acquiesced to this procedure.\\nRespondent argues that the handcuffing of appellant and removing him to another area for search was not the functional equivalent of an arrest. We disagree. Even if the police do not formally arrest a suspect, that suspect may nevertheless be under actual arrest if the restraint employed by the police goes beyond that which is reasonably necessary for a detention. (People v. Parker (1978) 85 Cal.App.3d 439, 443 [148 Cal.Rptr. 513]; People v. Hatcher (1969) 2 Cal.App.3d 71 [82 Cal.Rptr. 323].)\\nIn People v. Courtney (1970) 11 Cal.App.3d 1185, 1192 [90 Cal.Rptr. 370], the court discussed its disinclination to hold that every transportation of a suspect to another location constitutes arrest. In the Courtney case the police removed a suspect from a crowd of hostile students to the campus police department for interrogation. The court said that the choice was between on-spot interrogation at the expense of the officers' safety or abandoning the investigation. \\\"We recognize that it is only in a rare case where, absent probable cause for arrest, the removal of a suspect to a police station for further investigation is constitutionally permissible.\\\" (See also People v. Harris (1975) 15 Cal.3d 384 [124 Cal.Rptr. 536, 540 P.2d 632].) Surely, it is a greater intrusion to handcuff a suspect before removing him to another location for further investigation, and this degree of restraint must be justified.\\n\\\"When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.\\\" (Terry v. Ohio (1968) 392 U.S. 1, 24 [20 L.Ed.2d 889, 908, 88 S.Ct. 1868].)\\nThere has been no showing that Officer Welch was in any danger or believed himself to be in any danger after he had established that the appellant was unarmed. Further, Officer Welch had the support of a second officer.\\nWe have shoved many an analysis through the eye of a needle, but we cannot cope with the enormity of the incongruity urged by respondent in saying that a person who is handcuffed and asked to accompany an officer, freely consents to do so. Nor can we conceptualize that a person in this position believes that he or she is free to leave the area of detention. The act of handcuffing unequivocally manifests police restraint regardless of the suspect's supposed consent to the procedure. \\\"An arrest is made by an actual restraint of the person, or by submission to the custody of an officer....\\\" (Pen. Code, \\u00a7 835.)\\nThe conduct of the officer exceeded a reasonable detention under the circumstances in that there was not an increasing degree of justification for the increasing degree of intrusion. We conclude therefore that appellant was under arrest prior to the search, and we next examine whether there was probable cause to arrest.\\nCustody is an objective condition and is not solely dependent upon the subjective intent of the officer to arrest the suspect. \\\"The fact that the officers, who had probable cause to arrest defendant, intended to question him further before announcing his arrest did not vitiate their probable cause. (People v. Salitter (1976) 55 Cal.App.3d 1046 [128 Cal.Rptr. 149].) That the officers testified that they detained defendant did not negate the existence of probable cause and the objective indicia of arrest, or the fact of arrest.\\\" (People v. Parker, supra, 85 Cal.App.3d 439, 445.)\\nAppellant's contention .that his conduct might be susceptible of an innocent explanation is not supported in light of the totality of the circumstances presented here. \\\"'The succession of superficially innocent events had proceeded to the point where a prudent man could say to himself that an innocent course of conduct was substantially less likely than a criminal one.'\\\" (United States v. Belle (3d Cir. 1979) 593 F.2d 487, 498.)\\nThe officers conducting this investigation had years of experience in narcotic investigation and testified to the significance of the conduct of the defendants as conforming to the pattern of those persons engaged in narcotic traffic. Appellant owned several residences in the area which Officer Davenport categorized as \\\"drops.\\\" All of the automobiles being used by the various suspects were owned by the appellant. The \\\"furtive conduct,\\\" the efforts to \\\"detect surveillance,\\\" the attempt at the airport to avoid the appearance of traveling together, the deliberately misleading statements made to the officer at the airport, the past association with a known narcotic figure, and the purchase of tickets for a destination known to be one of the cities utilized by this particular ring of narcotic suspects, cumulatively constituted a basis for reasonably believ- . ing that these defendants were presently engaged in the trafficking of narcotics and were probably part of the narcotics ring under investigation.\\nThus, there was probable cause to detain and to arrest the appellant, and the consent to search the house on Via Madera which followed was therefore valid.\\nThe judgment is affirmed.\\nKingsley, Acting P. J., and Early, J., concurred.\\nAssigned by the Chairperson of the Judicial Council.\"}"

cal/2065631.json

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+"{\"id\": \"2065631\", \"name\": \"JOHN W. KOEHL et al., Respondents, v. ADOLPH D. CARPENTER et al., Appellants\", \"name_abbreviation\": \"Koehl v. Carpenter\", \"decision_date\": \"1920-05-21\", \"docket_number\": \"Civ. No. 3367\", \"first_page\": \"642\", \"last_page\": \"646\", \"citations\": \"47 Cal. App. 642\", \"volume\": \"47\", \"reporter\": \"California Appellate Reports\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T17:46:18.717495+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOHN W. KOEHL et al., Respondents, v. ADOLPH D. CARPENTER et al., Appellants.\", \"head_matter\": \"[Civ. No. 3367.\\nFirst Appellate District, Division Two.\\nMay 21, 1920.]\\nJOHN W. KOEHL et al., Respondents, v. ADOLPH D. CARPENTER et al., Appellants.\\nNegligence\\u2014Action fob Damages for Death\\u2014Absence of Contributory Negligence\\u2014Evidence\\u2014Finding\\u2014Appeal.\\u2014In an action for damages for death caused by the deceased having been struck by an automobile, a finding by the trial court that the deceased was not negligent, if supported by sufficient evidence, will not be disturbed on appeal.\\nId.\\u2014Crossing of Street by Pedestrian\\u2014Care Required.-\\u2014There is no positive duty on the part of pedestrians about to cross a street to stop, look, and listen, but the question of negligence, under the usual rule of ordinary care that devolves upon foot-travelers, must be examined in the light of all the attending circumstances, one of which may be knowledge of the existence of a statute or an ordinance prescribing fixed regulations for observance by automobile drivers.\\nId.\\u2014Duty of Motorists Trailing or Passing Cars\\u2014Ability to Comply With Municipal Ordinance.\\u2014In view of the obvious danger of passing street-ears when they stop for the accommodation of passengers, it behooves motorists neither to trail cars so closely that they cannot comply with a muneipal ordinance which requires them to stop at least ten feet in the rear of such street-car, nor to attempt to pass a street-ear at a regular stopping point until they are sure that there will be no stop.\\nId.\\u2014-Measure of Damages\\u2014Province of Trial Court\\u2014Appeal.\\u2014 The amount of damages to be allowed the plaintiffs for the death of their daughter due to the negligence of the defendants is a matter peculiarly within the province of the trial court, and its action will not be disturbed on appeal unless the amount is so disproportionate to the injury as at first glance to shock the conscience.\\nId.\\u2014Funeral Expenses\\u2014Pleading\\u2014Finding\\u2014Evidence.\\u2014In such action, an allegation that certain indebtedness covering the cost of burial had been incurred is sufficient to support a finding that plaintiffs were damaged to that amount; and the defendants will not be heard to contend on appeal that the damages should not have included that hmount because the bill was not paid by either of the plaintiffs, where the colloquy between counsel at the time the bill was offered in evidence was sufficient to sustain the implied finding that, though the bill was made out to the brother of the deceased, the expense was incurred by plaintiffs, and counsel for defendant stated at that time that he would not raise any objection to the bill.\\n2. Duty of pedestrians to look out for automobiles, notes, 3 L. It. A. (N. S.) 345; 20 L. B. A. (N\\u201e S.) 232; 38 L. B. A. (N. S.) 488; 42 L. B. A. (N. S.) 1179.\\nAPPEAL from a judgment of the Superior Court of Los Angeles County. Paul J. McCormick, Judge.\\nAffirmed.\\nThe facts are stated in the opinion of the court.\\nE. B. Drake for Appellants.\\nG. C. De Garmo for Respondents.\", \"word_count\": \"1863\", \"char_count\": \"10616\", \"text\": \"BRITTAIN, J.\\nThe defendants, sued as husband and wife, by the parents as heirs of Mae C. Koehl, who died as the result of being struck by an automobile driven by Mrs. Carpenter, appeal from a judgment for $1,000 rendered by the trial court sitting without a jury. The appellants rely \\u00f3n three grounds which will be disposed of in the order of their presentation, after the following statement of facts shown by the record:\\nMae Koehl was between twenty-one and twenty-two years of age. She had previously been employed as a cashier in a business concern in Los Angeles. She was out of employment for about a month during which time she remained at home, helping with the household duties. She then went to work as an assistant bookkeeper in the office of her father, who, with his son, was engaged in the manufacturing business. She had been so occupied about a month, and was acquainted with the streets in Los Angeles and with the particular crossing, near her place of business, where the accident occurred.\\nAt the time of the accident, in November, 1917, there was, and had been from some time in 1914, an ordinance of the city of Los Angeles which provided that it should be unlawful for the driver of any vehicle, \\\"upon overtaking any street or interurban railway car which has stopped for the purpose of discharging or taking on any passengers, to fail, neglect or refuse to stop such vehicle at least ten feet in the rear of such . . . car and to keep such vehicle standing where so stopped until such passengers or intending pas sengers have safely alighted from or boarded said . . . ear, or until such . . . car shall have started.\\\"\\nAbout noon on November 27, 1917, Mae Koehl was a passenger on a street-car running west on Seventh Street, and told the conductor to stop the car at Anderson Street. The car stopped on the east side of Anderson Street at the corner and she alighted, starting to walk diagonally in a northwesterly direction toward the sidewalk at the corner of Seventh and Anderson Streets. The conductor heard a scream and the car, which had started and had gone a few feet, again stopped. The conductor saw her reach a point three or four feet from the curb line when she was struck.\\nMrs. Carpenter was driving her motor west on Seventh Street, trailing the street-car, and had been following it for several blocks. At the time of the accident, she testified she was moving at the rate of about ten miles per hour. She did not stop the automobile, nor did she sound any warning as she approached the crossing. She testified that she thought the car was slowing down for the crossing-, that when she saw Miss Koehl in the act of alighting she screamed, and being afraid that the brakes would not hold she turned the machine sharply to the right to avoid the impending collision. She did not run it into the sidewalk, but turned it so that it continued its course westerly near the curb. She testified that the brakes were in good order, and that at the rate at which she was traveling she could have stopped the car in about five feet. The street-car had been running at about six or eight miles an hour, and as it reached Anderson Street Mrs. Carpenter turned from immediately behind it to the north side to pass it while crossing Anderson Street. She testified she had put on the foot-brake, but when she struck Miss Koehl she lost control of herself and did not know what happened. When she first saw Miss Koehl she was ten or fifteen feet away. Miss Koehl was struck when she was near the curb line of Anderson Street and her body was carried nearly to the middle of the street, the automobile running over her and for ten to fifteen feet beyond.\\nDuring the trial the plaintiffs' attorney said: \\\"Here is a list of the costs of burial, subject to your objections as to some items.\\\" The attorney for the appellants replied: \\\"Yes, Bresee Brothers have put it in. I suppose we have to pay these things when we die. I will not raise any question about it.\\\" The document was marked plaintiffs' exhibit 3, and was in the form of a receipted bill of Bresee Brothers, undertakers, for $272.50, funeral expenses of Mary Koehl. It was made out to Albert Koehl, a brother of Miss Koehl.\\nThe appellants argue that Miss Koehl was guilty of contributory negligence. This court cannot so determine as a matter of law in view of all the circumstances. Considered as a question of fact, it was determined by the trial court adversely to the appellants. There was sufficient evidence to sustain its finding. In such a case that finding will not be disturbed on appeal. The rules of law concerning the respective rights and obligations of persons using the public streets recently received lengthy consideration by the supreme court. It was there held that there is no positive duty on the part of pedestrians about to cross a street to stop, look, and listen, and that the question of negligence, under the usual rule of ordinary care that devolved upon foot-travelers, must be examined in the light of all the attending circumstances, one of which may be knowledge of the existence of a statute or an ordinance prescribing fixed regulations for observance by automobile drivers. (Mann v. Scott, 180 Cal. 550, [182 Pac. 281].)\\nIt is argued that the ordinance was only operative against those automobile drivers who are so far back of a street-car as to be able to stop ten feet in the rear of the street-car when it stops for the purpose of taking on or discharging passengers. There are two answers to this contention. Cars ordinarily stop for those purposes at street corners. In view of the obvious danger of passing cars when they do stop for the accommodation of passengers it behooves motorists neither to trail cars so closely that they cannot comply with the ordinance nor to attempt, as Mrs. Carpenter did, to pass a car at a regular stopping point until they are sure that there will be no stop. Further the court is of the opinion that regardless of the provisions of the ordinance, there is ample evidence to sustain the judgment.\\nIt is next contended that the damages are excessive, but the amount of damages is a matter peculiarly within the province of the trial court, and its action will not be disturbed unless the amount 'is so disproportionate to the injury as at first glance to shock the conscience. This does not appear to be the case in the present instance. (Martin v. Shea, 182 Cal. 130, [187 Pac. 23].)\\nLastly it is contended that the damages should not have included the amount paid to the undertaker, because the bill was not paid by either of the plaintiffs. The allegation of the complaint was that these expenses had been incurred. This was sufficient to support the finding that the plaintiffs had been damaged to the amount of $1,000, including funeral expenses of $272.50: The colloquy between counsel at the trial regarding the funeral expenses is sufficient to support the implied finding that though the bill was made out to the brother of Miss Koehl, the expense was incurred by her parents, the plaintiffs. If timely objection had been made, the plaintiffs might have supplied the missing proof. After the statement of counsel for the appellants that he would not raise any objection about it, referring to the list of costs of burial, that objection will not be seriously considered here.\\nThe judgment is affirmed.\\nNourse, J., and Langdon, P. J., concurred.\\nA petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 19, 1920.\\nAll the Justices concurred, except Wilbur, J., and Lennon, J., who were absent, and Olney, J., who did not vote.\"}"

cal/2065885.json

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+"{\"id\": \"2065885\", \"name\": \"In the Matter of the Estate of LOUISE M. MURPHY, Deceased\", \"name_abbreviation\": \"In re Estate of Murphy\", \"decision_date\": \"1916-01-17\", \"docket_number\": \"L. A. No. 4323\", \"first_page\": \"697\", \"last_page\": \"701\", \"citations\": \"171 Cal. 697\", \"volume\": \"171\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T22:15:00.405218+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of the Estate of LOUISE M. MURPHY, Deceased.\", \"head_matter\": \"[L. A. No. 4323.\\nIn Bank.\\nJanuary 17, 1916.]\\nIn the Matter of the Estate of LOUISE M. MURPHY, Deceased.\\nEstates of Deceased Persons\\u2014Attorney\\u2019s Fees of Administrator\\u2014 Services in Opposition to Revocation of Letters.\\u2014Services performed by an attorney for an administrator of an estate in filing a brief in opposition to a petition for the revocation of his letters of administration and in the preparation of the order therein, are not the ordinary proceedings referred to in section 1619 of the Code of Civil Procedure. In such a contest, the public administrator of Los Angeles County, as administrator of the estate, was not acting as a trustee of the estate, but acting solely for his own interest or that of the municipality entitled under the charter to the fees of administration. Hence, the services so rendered constituted no basis for the allowance of the statutory fees.\\nId.\\u2014Attorney\\u2019s Fees not Allowable Where No Legal Services are Rendered.\\u2014The estate of a deceased person is not properly chargeable with attorney\\u2019s fees where the attorney claiming them gives no advice and renders no service to the estate or administrator thereof, the sole basis for his demand being that he permitted the administrator to sign his name to the petition for letters of administration and other documents prepared by the administrator, and to which the latter\\u2019s signature as administrator would give them the same legal effect as though signed by the attorney.\\nId.\\u2014Administrator not Required to Employ Attorney\\u2014Estates Administered by Public Administrator of Los Angeles County.\\u2014 There is no law, statutory or otherwise, which requires an administrator to employ an attorney, and where a claim for statutory fees is presented for services rendered in conducting the ordinary probate proceedings, the burden, where objection is made thereto, rests upon the attorney to show that he has rendered such services. This rule is applicable in estates administered by the public administrator of Los Angeles County, and to claims for attorney\\u2019s fees made by the county counsel under section 21 of article VI of the county charter.\\nAPPEAL from an order of the Superior Court of Los Angeles County refusing to allow an attorney\\u2019s fee to the administrator of the estate of a deceased person. James C. Rives, Judge.\\nThe facts are stated in the opinion of the court.\\nA. J. Hill, County Counsel, Roy V. Reppy, Assistant County Counsel, and Edward T. Bishop, Deputy County Counsel, for Appellant.\\nCharles C. Montgomery, for Respondent.\", \"word_count\": \"1841\", \"char_count\": \"11103\", \"text\": \"VICTOR E. SHAW, J., pro tem.\\nFrank Bryson, administrator of the Estate of Louise Murphy, deceased, prosecutes this appeal from an order of court refusing to allow the item \\\"Attorney's fees, statutory, $1142.18,\\\" set out in his final account as being by him incurred for attorney's fees for legal services rendered in conducting the ordinary probate proceedings in said estate.\\nThe matter came on to be heard upon objections interposed to the administrator's final account and petition for distribution. The court made findings of fact upon which no attack is made. Appellant, however, insists that the order made is not supported by the findings. It appears that at all of the times in question Bryson was public administrator of Los Angeles County, in which capacity he administered the estate of deceased; that by section 14, article VI, of the county charter of Los Angeles County, there was created the office of county counsel, which office was, during the time of the administration, filled by A. J. Hill, and whose duties as such officer were prescribed by section 21, article VI, of such county charter, which provides: \\\"The county counsel . . . shall also act as attorney for the public administrator in the matter of all estates in which such officer is . . . administrator, and the county counsel shall, in every such matter, collect the attorney's fees allowed therein by law and pay the same into the county treasury.\\\" The name of A. J. Hill, but not by Mm or Ms deputies, was attached to all papers with his concurrence and with the intention on the part of said administrator of designating Hill as his attorney in the matter of said estate, as provided in said article VI, section 21, of said county charter. Prior to the filing of objections to the final account, all papers filed in said estate were prepared by said public administrator, or by his deputies and in his office, with the exception that said Hill, county counsel of the county of Los Angeles, prepared and filed in court a brief upon the legal questions raised by a, petition filed in the proceeding asking for a revocation of the letters granted to said public administrator, and said A. J. Hill, county counsel, prepared the order which was signed by the judge of the court and filed, denying the petition for revocation of letters issued to the public administrator. Aside from this, said A. J. Hill, county counsel, did not, nor did any of his deputies, prepare any paper or make any appearance by personal presence in court, or give any legal advice, excepting in connection with said petition for revocation of letters aforesaid, concerning the administration of the estate. The public administrator, either personally or through his deputies, did, with the exception above noted, perform all the services which were performed in connection with the administration of said estate, and did not, except as stated, find it necessary to obtain assistance or advice from the said A. J. Hill, county counsel, or his deputies, upon any matters connected with the administration of the estate, though Hill was at all times ready to perform legal services in connection with such administration. As conclusions of law, the court found that no legal services had been rendered the public administrator in the conduct of the administration of said estate, and that neither Bryson, Hill, nor the county of Los Angeles is entitled to be allowed attorney's fees therein in any sum whatsoever.\\nThe service performed in filing the brief in opposition to the petition for the revocation of letters of administration granted to Bryson and the preparation of the order therein, was not the ordinary proceeding referred to in section 1619, of the Code of Civil Procedure, and for which the fees are claimed. If regarded as extraordinary service, no fees were asked therefor. Moreover, in such contest the public administrator was not acting as a trustee of the estate of de ceased, but acting solely in and for his oto interest or that of the municipality entitled under the charter to the fees of administration. (Estate of Lermond, 142 Cal. 585, [76 Pac. 488].) Hence, the services so rendered constituted no basis for the allowance of statutory fees.\\nThe question then fairly presented upon the findings is this: Is the estate of a deceased person chargeable with attorney's fees where the attorney claiming them gives no advice and renders no service to the estate or administrator thereof, the sole basis for his demand being that he permitted the administrator to sign his name to the petition for letters of administration and other documents prepared by the administrator and to which the latter's signature as administrator would give them the same legal effect as though signed by the attorney? (Code Civ. Proc., sec. 1371.) Appellant quotes from Estate of Goodrich, 6 Cal. App. 730, [93 Pac. 121], where it is said: \\\"Under our practice, the services of an attorney are not only essential, but the burden and responsibility of his work are usually much greater than those of the executor or administrator. The effect of the law is simply to allow the executor an additional fee for a certain expense of administration.\\\" While this is true, we know of no law which requires an administrator to employ an attorney, and conceding that where one is employed and acts as attorney his responsibilities are as great as those of the administrator, certainly the fact in this ease that the administrator performed all the services himself without the assistance or advice of counsel, not only shows that no necessity existed for employing an attorney, but also shows, since he did nothing, the attorney claiming the fees assumed no burden or responsibility whatever. The fees demanded are the statutory fees provided by section 1619 of the Code of Civil Procedure, for services rendered in the conduct of the ordinary probate proceedings. This section provides that the court may make further allowance for \\\"extraordinary services such as sales or mortgages of real estate, contested or litigated claims against the estate, ' ' etc. Upon the presentation of a claim based upon alleged extraordinary services, it would devolve upon the attorney to show that he had rendered the service, and in the absence of such showing it would be the duty of the court to disallow such claim. Likewise, where a claim for statutory fees is presented for services rendered in conducting the ordinary probate proceedings, the burden, where objection is made thereto, rests upon the attorney to show that he has rendered such service. We know of no law, statutory or otherwise, which requires an administrator to employ an attorney; nevertheless, if it appears that he has employed an attorney who has rendered the ordinary service contemplated by the statute in such proceedings, he is entitled to the statutory fees. (Estate of Goodrich, 6 Cal. App. 730, [93 Pac. 121].) The charter provision does not purport to be a revenue measure in the interest of the county. It contemplates that the county counsel shall act\\u2014that is, do something in conducting the probate proceedings; and section 1619 of the Code of Civil Procedure contemplates that the attorney shall render some service in conducting the ordinary probate proceedings as a basis for his claim of compensation. Hill neither acted within the meaning of the charter nor performed any service whatsoever for the estate. In our opinion, it would be a travesty upon the law to uphold appellant's demand, based as it is upon a mere pretense that he has rendered professional service to said estate.\\nThis view renders it unnecessary to discuss the question of the validity of the charter provision. Suffice it to say that, assuming Hill had, at the administrator's request, rendered services to the estate, then, conceding the act invalid as claimed by respondent, he would nevertheless be entitled to the fees provided by section 1619, since it would be immaterial what motive prompted the administrator in employing him.\\nAs stated, the appeal is prosecuted by the administrator, whose right so to do is not questioned by the respondent. Whether or not he is an aggrieved party possessing the right of appeal, since the statutory changes in sections 1616 and 1619 of the Code of Civil Procedure, providing for the making of an allowance direct to the attorney out of the assets of the estate and as to which the administrator incurs no liability, is not decided..\\nThe judgment is affirmed.\\nShaw, J., Sloss, J., Melvin, J., Henshaw, J., Lawlor, J., and Angellotti, C. J., concurred.\"}"

cal/2067660.json

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+"{\"id\": \"2067660\", \"name\": \"J. S. HENDERSON, Appellant, v. D. S. DENEHY MERCANTILE COMPANY, INCORPORATED, et al., Respondents\", \"name_abbreviation\": \"Henderson v. D. S. Denehy Mercantile Co.\", \"decision_date\": \"1920-06-02\", \"docket_number\": \"Civ. No. 2174\", \"first_page\": \"41\", \"last_page\": \"46\", \"citations\": \"48 Cal. App. 41\", \"volume\": \"48\", \"reporter\": \"California Appellate Reports\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T18:15:13.953179+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. S. HENDERSON, Appellant, v. D. S. DENEHY MERCANTILE COMPANY, INCORPORATED, et al., Respondents.\", \"head_matter\": \"[Civ. No. 2174.\\nThird Appellate District.\\nJune 2, 1920.]\\nJ. S. HENDERSON, Appellant, v. D. S. DENEHY MERCANTILE COMPANY, INCORPORATED, et al., Respondents.\\nFraudulent Conveyances \\u2014 Transfer of Stock in Trade \\u2014 Action by Judgment Creditor to Eecover\\u2014Pleading.\\u2014In an action by a judgment creditor to compel the delivery to him of a stock in trade alleged to have been transferred to defendant with intent to defraud creditors of the judgment debtor, the fact that the complaint contains allegations showing the execution and garnishment proceedings levied against the known property of the judgment debtor and on the defendant, the denial by the latter of its having any property of the judgment debtor, and the return of the writ nulla l>ona, does not render the complaint subject to demurrer on the ground that several causes of action are improperly united and not separately stated.\\nId.\\u2014When Creditors\\u2019 Bill Proper \\u2014 Inadequacy of Supplementary Proceedings.\\u2014While it is the general rule that, since the statute provides for proceedings supplementary to execution, resort must be had to such proceedings before a creditors\\u2019 bill will lie, where such statutory proceedings do not afford an adequate remedy, as where there has been a void transfer of personal property by the debtor and the transferee claims the title, said supplementary-proceedings do not supersede the remedy by action.\\nId.\\u2014Transfer of Stock in Trade \\u2014 Noncompliance With Sec- \\u2022 tion 3440, Civil Code\\u2014Sufficiency of Complaint.\\u2014In an action by a judgment creditor to compel the delivery to him for the purpose of satisfying his judgment, of a stock in trade which was transferred by the judgment debtor to defendant, without giving the notice required by section 3440 of the Civil Code, the complaint is not subject to general demurrer on the theory that the transfer to defendant was void and that, therefore, the title to the property is still in its vendor, in so far as creditors of the latter \\u201e are concerned, where it is alleged that defendant has possession of the property and refuses to give it to the sheriff.\\nId.\\u2014Conveyance by Fraudulent Vendee to Third Person\\u2014Liability to Creditors of Vendor.\\u2014Such a fraudulent vendee is liable for the value of the property to the creditors of its vendors, notwithstanding it has transferred the property to another.\\nAPPEAL from a judgment of the Superior Court' of Modoc County. Clarence A. Baker, Judge. Reversed.\\nThe facts are stated in the opinion of the court.\\nJ. T. Sharp and Joseph Kirk for Appellant.\\nJamison & Wylie for Respondents.\", \"word_count\": \"2058\", \"char_count\": \"12081\", \"text\": \"BURNETT, J.\\nThe appeal is by plaintiff from a judgment in favor of defendant Denehy Mercantile Company after a demurrer to a second amended complaint had been sustained and the plaintiff had declined to amend. The sole question on this appeal is therefore the sufficiency of said amended complaint. Appellant has made and presented a synopsis of said complaint, which we substantially adopt in the following statement: On April 30, 1918, M. Hotchkiss & Sons, retail merchants of Lake City, Modoc County, California, while indebted to plaintiff's assignors in the sum of $1,197.91, sold and delivered their stock in trade of the value of $3,000 to the defendants herein. \\\"That neither the said M. Hotchkiss & Sons or said defendants, D. S. Denehy Mercantile Company, Incorporated, and John H. Hornbacb, or either, or any of them, either at least seven days before the consummation of said sale or transfer or assignment or ever or at all, recorded, or caused to be recorded, nor was there at any time recorded on behalf of either of said persons or at all, in the office of the County Recorder of the County of Modoc, State aforesaid, or any other place, a notice of said intended sale, transfer or assignment, nor was there ever recorded a notice or any notice, as provided in Section 3440, Division 4, Part 2, of the Civil Code of the State of California; that no notice of said intended sale, transfer, or assignment of any kind, character, or description, was filed or recorded or filed for record either in the Office of the County Recorder of the County of Modoc, State aforesaid, where said stock in trade was situated or at any other place.\\\"\\nOn August 5, 1918, plaintiff brought suit on his assignors' claims, and on September 5, 1918, procured judgment thereon against Hotchkiss & Sons, and caused a writ of execution to be levied by way of garnishment on defendants in this action and by way of direct levy on all other known property of said Hotchkiss & Sons in Modoc County, California. Defendants denied having any property belonging to Hotchkiss & Sons, and asserted themselves to be the owners of said stock in trade, and refused to turn over the same to the sheriff for application to satisfy the execution. Under the execution upon the other property the net receipts of the sheriff amounted only to $192.46. With this exception the writ was returned nulla bona, and as a result the plaintiff. has an unsatisfied judgment for over $1,000 against Hotchkiss & Sons, who were and are insolvent and have no other property out of which the judgment can be realized. After alleging in conclusion that the transfer of the stock in trade was made to the defendants by Hotchkiss & Sons with intent to defraud the latter's creditors, plaintiff prays judgment against the defendants for the delivery to him of the stock in trade or sufficient thereof to satisfy his judgment against Hotchkiss & Sons, or in case delivery cannot be made, for judgment against the defendants and each of them for the amount of his judgment against Hotchkiss & Sons, with interest, etc.\\nThe defendant Denehy Mercantile Company interposed a demurrer upon the grounds: (a) That' the complaint did not state a cause of action; (b) that several causes were improperly united; (c) that they were not separately stated, and (d) that the complaint was ambiguous, unintelligible, and uncertain.\\nThe action is clearly in the nature of a \\\"creditor's bill,\\\" and we can see no valid objection to the complaint.\\nWe are satisfied that only one cause of action is attempted to be stated. The alleged facts show plaintiff to be a judgment creditor, who has attempted unavailingly by legal methods to satisfy his judgment, and then invokes the equitable power of the court to subject to his claim the property of the judgment debtor which has been fraudulently conveyed to another party. The allegations in reference to the garnishment and proceedings under execution have no legal relation to a separate cause of action, but are simply indicative of the efforts made by plaintiff to avoid the necessity for res.orting to the equitable action. Indeed, it has been held in this state that such attempt must be made before the creditor is in a position to attack the fraudulent conveyance. In Bickerstaff v. Doub, 19 Cal. 109, [79 Am. Dec. 204], it was said: \\\"A fraudulent sale cannot be attacked by a creditor merely from the fact that he is a creditor, but only when he has a judgment establishing his debt and an execution issued therein, or has some process regularly issued as in the case of attachment, authorizing a seizure of the property.\\\" The complaint herein having set forth the judgment and the return of execution nulla bona, it was not necessary to \\u2022 allege the attachment proceeding, but, of course, it could do no harm. The special demurrer for uncertainty, etc., was based upon the same contention that different causes of action had been commingled, and it is equally without merit.\\nAs to the general demurrer, we may say that no material facts seem to be omitted from the complaint. The general rule is, no doubt, that, since the statute provides for proceedings supplementary to execution (sees. 717 to 720, Code Civ. Proc.), resort must be had to such proceedings * before a creditors' bill will lie. But if said statutory proceedings do not afford an adequate remedy, as where there has been a void transfer of personal property by the debtor and the transferee claims the title, said supplementary proceedings do not supersede the remedy by action. (Rapp v. Whittier, 113 Cal. 429, [45 Pac. 703] ; Phillips v. Price, 153 Cal. 146, [94 Pac. 617].) This case falls clearly within the exception, as the complaint alleges: \\\"That said defendants . . . denied and now deny that they had, or have, any property in their possession belonging to said M. Hotchkiss & Sons, and assert the fact to be that said stock in trade belongs to them, the said defendants, and that they have title thereto.\\\"\\nHowever, it is due respondent's counsel to say that they do not specifically make this objection. The only reason they advance for their position as to the insufficiency of the complaint is found in this statement: \\\"If it is an action against defendant, as the vendee of M. Hotchkiss & Sons, for purchasing the stock of goods without giving the notice required by section 3440 of \\\"the Civil Code, it fails to state a cause of action. The effect of that statute is simply to make such sale void and leave the title to the property in the vendor so far as the creditors are concerned. In other words, the plaintiff could have levied his execution or attachment upon these goods while they were in the hands of M. Hotchkiss & Sons and this sale without notice did not prevent him from following the goods and levying upon them in the hands of the vendee of said M. Hotchkiss & Sons. The remedy of the plaintiff if defendant purchased the stock of goods without giving the notice required by section 3440 of the Civil Code was to follow and seize the goods.\\\" The foregoing may be considered as a suggestion that the complaint should show the said steps to have been taken. So considered, it is sufficient to say that therein it clearly appears that just that course was pursued. It appears that the property was in the possession of said defendant D. S. Deheny Mercantile Company\\u2014the only defendant that has appeared in this court-\\u2014and that the sheriff levied upon said property the writ of execution, \\\"that after the levy of said writ of execution upon said defendant D. S. Deheny Mercantile Company, it neglected, failed, and refused and still neglects, fails, and refuses to deliver over to said sheriff for the plaintiff, the aforesaid stock in trade or any part thereof so received by it as aforesaid from said M. Hotchkiss & Sons, or to pay to said sheriff the value thereof or any part thereof or to pay unto said sheriff the. amount named in said writ of execution or any part thereof.\\\" That the plaintiff did not take actual possession of the property was due to the action of the company in refusing to permit it, and, of course, it cannot attach any saving virtue to its\\\" own wrong. It may be added that, if respondent company had not interfered, no doubt the sheriff would have taken the property into his possession and sold it to satisfy the demand, and this action would never have been brought. Nor do we think there is any merit in the claim that it does not appear but that the property at the time of the beginning of the action was in the possession of some other party, and, if so, the action would not lie against these defendants. But this is a mistake, both as to the fact and as to the law.\\nThe fact is alleged as follows: \\\"That at all times herein mentioned and since the 30th of April, 1918, said defendant D. S. Deheny Mercantile Company, Incorporated, has had sole, exclusive, continuous, and unqualified possession of all the goods, wares, and merchandise belonging to said M. Hotchkiss & Sons, and now- is the sole and exclusive and unqualified possessor of said stock of merchandise and the whole thereof.\\\" Moreover, if the company had transferred the property, the fraudulent vendee would still be liable for the value of the property to the creditors of the vendor. (Swinfordv. Rogers, 23 Cal. 234; 20 Cyc., p. 630.)\\nWe are satisfied that the ruling of the trial court was erroneous and the judgment is, therefore, reversed, with directions to overrule the demurrer.\\nNicol, P. J., pro tern., and Hart, J., concurred.\"}"

cal/2067704.json

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+"{\"id\": \"2067704\", \"name\": \"CONTRA COSTA CONSTRUCTION COMPANY (a Corporation), Respondent, v. THE CITY OF DALY CITY (a Corporation), Appellant\", \"name_abbreviation\": \"Contra Costa Construction Co. v. City of Daly\", \"decision_date\": \"1920-07-24\", \"docket_number\": \"Civ. No. 3333\", \"first_page\": \"622\", \"last_page\": \"625\", \"citations\": \"48 Cal. App. 622\", \"volume\": \"48\", \"reporter\": \"California Appellate Reports\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T18:15:13.953179+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CONTRA COSTA CONSTRUCTION COMPANY (a Corporation), Respondent, v. THE CITY OF DALY CITY (a Corporation), Appellant.\", \"head_matter\": \"[Civ. No. 3333.\\nFirst Appellate District, Division One.\\nJuly 24, 1920.]\\nCONTRA COSTA CONSTRUCTION COMPANY (a Corporation), Respondent, v. THE CITY OF DALY CITY (a Corporation), Appellant.\\nMunicipal Corporations \\u2014 Construction ox Pipe-line \\u2014 Extra Work \\u2014 Noncomfliance With Contract \\u2014 Liability ox City.\\u2014 Where a contract with a municipal corporation for the construction of a water-pipe line for the city\\u2019s water supply specifies the precise conditions under which alone it will be obliged to pay for extra work, but this method is not followed by the contractor, there can be no recovery for such extra work under the contract.\\nId.\\u2014Implied Contract.\\u2014An implied contract does not arise for work done for a municipality under an ultra vires contract.\\nId.\\u2014Powers ox City Engineers\\u2014Ordering ox Extra Work\\u2014 Liability ox City.\\u2014Where city engineers are not permitted to contract on behalf of the city under the terms of the contract defining and limiting their powers, they cannot by their conduct give rise to an implied contract; and the city cannot be held liable to a contractor for the acts of such engineers in ordering extra work.\\nId.\\u2014Powers ox Oxxicers ox Corporation\\u2014Implied Knowledge.\\u2014 - One dealing with a municipal corporation is chargeable with knowledge of the limitations of power of its agents and officers.\\nAPPEAL from a judgment of the Superior Court of San Mateo County. Geo. H. Buck, Judge. Reversed.\\nThe facts are stated in the opinion of the court,\\nGeorge Appell for Appellant.\\nRamsey Probasco, Robinson & Sizer and Albert B. Harris for Respondent.\", \"word_count\": \"1411\", \"char_count\": \"8274\", \"text\": \"KOFORD, J., pro tem.\\nThis is an appeal from a judgment for extra work, in favor of plaintiff and against defendant, a municipal corporation.\\nThe plaintiff and the city of Daly City, a municipal corporation, entered into a written contract for the construction of a water-pipe line for the city's water supply. The pipe-line was required to be laid, by the contract, plans, and specifications, in Mission road (outside of city boundaries), three and one-half feet below the old curb line of the road. After plaintiff commenced work it was stopped by an injunction not involved here, and before work recommenced it developed, or was discovered for the first time, that the state was undertaking the construction of a section of concrete paved highway along this portion of Mission road. The State Highway Commission, as it is popularly called, asserted and maintained exclusive possession of the road and the right of way, including the strip of land adjoining the pavement where the pipe was to be laid. The city's engineers thereupon wrote a letter to the Highway Commission asking for a permit on behalf of the city to lay the pipe. This permit was granted, but only on certain conditions as to the manner in which the work should be performed. Among those conditions was the requirement that the pipe be laid four feet below the profile of the highway pavement instead of three and one-half feet below the old curb line.\\nThe plaintiff was informed by the city engineers of this new requirement and of changes in the plan necessary to meet this requirement. The plaintiff continued with the work, and then discovered that this change in the plan would bring the pipe trench below the surface soil and into rock, and it protested that this would entail considerable additional expense. The engineers orally directed the plaintiff to proceed with the work and \\\"keep a good record of it and see what it costs, and when we get through we will make a fair settlement with you.\\\"\\nAfter the work was finished a claim for the extra work, labor, and materials necessitated by this change in the plan was presented to the board of trustees and was by it rejected. This suit was commenced for the sum of $2,844.80, and resulted in a judgment for $1,432.98. The original contract price was $8,900.\\nThe contract provided that the work should be done in strict accordance with the plans and specifications, and completed to the satisfaction of the engineers of the city, and its board of trustees, for the sum of $8,900; and it further provided that in the event of any deductions or additions being made, certain unit prices established and specified in the contract would be used in determining the amount to be added or deducted. These, however, do not include the changed depth of the trench. The specifications contained provisions to the effect that the engineers should decide, in case of misunderstanding, as to the true interpretations of the plans- and specifications, and correct errors or omissions in the plans and specifications when necessary for the proper fulfillment of their intention. The board of trustees might by resolution order alterations in quantities of materials specified, and in case of increase it should be paid for upon the established unit prices. All necessary rights of way for the construction of the work to be guaranteed by the city; also the folloAving provision under the heading \\\"'Extra Work\\\": \\\"Any work not contemplated in these specifications that may be requested of the contractor by the engineers shall be paid for according to a prearranged schedule of prices agreed to betAveen the engineer and the contractor, and no payments Avill be made for such work unless they be authorized by resolution of the board of trustees.\\\"\\nCl] The municipality had the right to specify in the contract the precise conditions under which alone it would be obliged to pay for extra work. This it did. But this method was not followed by the contractor. There was no prearranged schedule of prices for the extra work agreed to betAveen the engineers and the contractors; neither was the extra Avork or alteration, nor any payment therefor, authorized by resolution of the board of trustees. As this provision of the contract was not complied with there can be no recovery under the express contract. (Gray v. La Societe Francaise, etc., 131 Cal. 566, [63 Pac. 848].)\\nThe findings are prepared in such a way as to support the theory of an implied as well as an express contract. We are of the opinion that the evidence is insufficient to support the judgment on the theory of an implied contract. It is well settled that an implied contract does not arise for work done for a municipality under an ultra vires contract. (Reams v. Cooley, 171 Cal. 157, [152 Pac. 293]; Zottman v. San Francisco, 20 Cal. 96, [81 Am. Dec. 96].) That Avould have the effect of putting the power to contract Avhere none existed, and Avould in effect change the charter of the city. As the engineers here were not permitted to contract on behalf of the city under the terms of the contract defining and limiting their powers, to hold that they could by their conduct give rise to an implied contract would in effect change the express contract and brush away the safeguards the city had placed in the contract for its protection. The city cannot be held liable for the acts of the engineers in ordering this work, unless the engineers in fact had the power so to do. One dealing with a municipal corporation is chargeable with knowledge of the limitations of power of its agents and officers. (Wallace v. San Jose, 29 Cal. 180.) The fact that the city guaranteed all rights of way did not enlarge the powers of the engineers nor authorize them to act as general agents with full power to secure the right of way. This was a matter which should have been taken up by the contractors with the board of trustees under the contract. An implied contract in this case could not arise at least without knowledge or action on the part of the board of trustees before the extra work was done. (Griffiths v. Los Angeles, 6 Cal. Unrep. 119, [54 Pac. 383].)\\nThe only action of the board of trustees in regard to the matter is the rejection of the claim for payment for the extra work. The whole matter seems to have been handled between the engineers and contractors under the belief that equitable considerations would prevail, and not the strict terms of the written contract. The engineers had no power to obligate the city for this extra work. The judgment is not supported by the evidence, either on the theory of an express or implied contract.\\nThe judgment is therefore reversed.\\nWaste, P. J., and Richards, J., concurred.\"}"

cal/2079378.json

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+"{\"id\": \"2079378\", \"name\": \"LOUISE FOSTER, Petitioner, v. WILLIAM I. TRAEGER, Sheriff, etc., et al., Respondents\", \"name_abbreviation\": \"Foster v. Traeger\", \"decision_date\": \"1922-01-30\", \"docket_number\": \"Civ. No. 3817\", \"first_page\": \"339\", \"last_page\": \"341\", \"citations\": \"56 Cal. App. 339\", \"volume\": \"56\", \"reporter\": \"California Appellate Reports\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T21:56:57.132823+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"LOUISE FOSTER, Petitioner, v. WILLIAM I. TRAEGER, Sheriff, etc., et al., Respondents.\", \"head_matter\": \"[Civ. No. 3817.\\nSecond Appellate District, Division One.\\nJanuary 30, 1922.]\\nLOUISE FOSTER, Petitioner, v. WILLIAM I. TRAEGER, Sheriff, etc., et al., Respondents.\\nMandamus\\u2014Issuance op Writ\\u2014Eight op Appeal.\\u2014A writ of mandate will not issue where there is a plain, speedy, and adequate remedy in the ordinary course of law, and, as general rule, the right of appeal constitutes such remedy.\\nId.\\u2014Denial op Writ by Superior Court\\u2014Efpect op.\\u2014A writ of mandate will not issue out of the supreme court or a district court of appeal when an application for such writ has been denied by the superior court.\\nId.\\u2014Redelivery op Personal Property by Sheripp\\u2014Previous Proceeding in Superior Court\\u2014Remedy by Appeal.\\u2014A writ of mandate will not issue out of the district court of appeal to compel a sheriff to redeliver personal property taken into his possession in an action of replevin, where the petitioner has previously made application to the superior court for such redelivery and the application has been denied, since the order denying the relief is a \\u201cfinal judgment\\u201d for the purposes of an appeal.\\nPROCEEDING on application for a Writ of Mandate to compel delivery of personal property taken in an action of replevin. Dismissed.\\nThe facts are stated in the opinion of the court.\\nKemp & Clewett and E. L. Foster for Petitioner.\\nAbrahams & D\\u2019Orr for Respondents.\", \"word_count\": \"899\", \"char_count\": \"5167\", \"text\": \"CONREY, P. J.\\nOn verified petition filed herein, an alternative writ of mandate was issued requiring that the respondents deliver to the petitioner certain personal property, to wit, a ring set with diamonds which had been taken into possession' by the sheriff by reason of claim and delivery proceedings in an action of replevin, or that respondents appear and show cause why a peremptory writ should not be granted. The respondents, together with the answer contained in their return to the alternative writ, have demurred to the petition on the ground that said petition does not state facts sufficient to entitle the petitioner to the relief demanded, and on the further ground that it appears from the petition that a proceeding was commenced and determined in the superior court between the parties hereto for the same cause and that judgment was made and rendered by the superior court in that proceeding on the second day of December, 1921.\\nThe petition shows that upon the same state of facts relied upon by petitioner to show her right to possession of said personal property, the petitioner did, in said action of replevin, apply to the superior court for an order directing the sheriff to retake possession of the property which theretofore he had redelivered to the defendant, and deliver possession thereof to the plaintiff. An order to show cause was issued and return made thereon by the sheriff and the defendant Abrahams. At a hearing by the court of the said matter, the court \\\"dismissed the same, holding that it was unnecessary for the defendant to justify the surety or sureties upon a redelivery bond, as required by sections 514 and 515 of the Code of Civil Procedure.\\\" The redelivery bond was an undertaking executed by a surety corporation.\\nA writ of mandate will not issue where there is a plain, speedy, and adequate remedy in the ordinary course of law. As a general rule, the right of appeal constitutes such remedy. A writ of mandate will not issue out of the supreme court or a district court of appeal when an application for such writ has been denied by the superior court: (Knowles v. Thompson, 133 Cal. 245 [65 Pac. 468]; Hartigan v. Pacific Gas & Elec. Co., 38 Cal. App. 763 [177 Pac. 484].)\\nThe proceeding on the petition for an order to show cause in the superior court, while not in the form of an application for a writ of mandate, was in substance and effect the same as an application for a writ of mandate. Although the order of court denying the relief demanded in that proceeding was not one of the orders mentioned in section 963 of the Code of Civil Procedure, it was a \\\"final judgment\\\" within the meaning of those words as used in subdivision 1 of that section. It was in effect a final judgment against the petitioner \\\"in a collateral proceeding growing out of the action\\u2014is so far independent of the suit itself as to be substantially a final decree for the purposes of an appeal, although there has been no final decree in the suit.\\\" (Anglo-Californian, Bank v. Superior Court, 153 Cal. 753 [96 Pac. 803].) Although the sheriff was not a party defendant in the replevin action, he was a party to the record so far as the collateral proceeding on the order to show cause was concerned, since he had been brought in as such party by the order to show cause. It follows that the order, being in effect a final judgment in that proceeding, was entirely subject to the right of appeal. (Elliott v. Superior Court, 144 Cal. 506 [103 Am. St. Rep. 102, 77 Pac. 1109].)\\nWe are of the opinion that the demurrer to the petition should be sustained. Since the facts to which we have referred are admitted, it would be useless to grant leave to amend. It is therefore ordered that the demurrer be sustained and the proceeding dismissed.\\nShaw, J., and James, J., concurred.\"}"

cal/2081496.json

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+"{\"id\": \"2081496\", \"name\": \"COUNTY OF MADERA, Respondent, v. RAYMOND GRANITE COMPANY, Appellant\", \"name_abbreviation\": \"County of Madera v. Raymond Granite Co.\", \"decision_date\": \"1902-12-31\", \"docket_number\": \"Sac. No. 1098\", \"first_page\": \"244\", \"last_page\": \"248\", \"citations\": \"138 Cal. 244\", \"volume\": \"138\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T20:26:32.840001+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"COUNTY OF MADERA, Respondent, v. RAYMOND GRANITE COMPANY, Appellant.\", \"head_matter\": \"[Sac. No. 1098.\\nIn Bank.\\nDecember 31, 1902.]\\nCOUNTY OF MADERA, Respondent, v. RAYMOND GRANITE COMPANY, Appellant.\\nWrit of Supersedeas\\u2014Eminent Domain.\\u2014After an appeal has been, perfected from a judgment condemning a strip of land for a highway, in an action instituted by a county, the supreme court cannot, issue a writ of supersedeas directed to persons who were not parties, to the proceedings in the lower court, and whose acts, as shown on the application for the writ, are independent of the judgment of\\\" condemnation and disconnected with such proceedings. Such writ Tims only to the court below or to its officers.\\nId.\\u2014Invalid Ordinances not Justification for Trespass.\\u2014Ordinances, of the board of supervisors, passed prior to the judgment of condemnation, declaring the strip of land a public highway, and granting a franchise for the construction of a railroad thereon, have no connection with the condemnation proceeding. If such ordinances are invalid they will not constitute any protection for a trespass, committed upon the lands, but the superior court is the proper forum, in which to seek redress against such trespass.\\nAPPLICATION for writ of supersedeas on an appeal from a judgment of the Superior Court of Madera County. W. M. Conley, Judge.\\nThe facts are stated in the opinion of the court.\\nA. A. Moore, and Robert L. Hargrove, for Appellant.\\nW. M. Gibson, R. R. Fowler, and H. M. Owens, for Respondent.\", \"word_count\": \"1476\", \"char_count\": \"8659\", \"text\": \"HARRISON, J.\\nApplication for writ of supersedeas. The plaintiff brought this action to obtain a judgment of condemnation for a highway of a certain strip of land belonging to the appellant. The cause was tried by the court, and on March 11, 1902, it rendered judgment, which was entered the next day, that said strip of land be condemned for the use and purpose of a highway, and that the defendant recover from the plaintiff a certain amount of money for the value of the land and for damages. Thereafter, May 23, 1902, the court entered its final judgment of condemnation, reciting therein that the said amount of money had been deposited by the plaintiff with the clerk of the court, in compliance with its previous order. July 19, 1902, the defendant appealed from each of these judgments, giving an undertaking in the sum of three hundred dollars upon each appeal. October 6, 1902, the appellant made the present application for a writ of supersedeas, \\\"to be directed to the respondent,\\\" staying all proceedings upon the said judgments, and suspending the operation and enforcement thereof until the final determination of the appeals.\\nIn the affidavits presented on behalf of the appellant at the hearing of the motion it is stated that the county of Madera\\u2014the respondent\\u2014has never taken possession of the right of way over appellant's land, or performed any work upon the same, or expended any money in improving the same. It is also stated in said affidavits that \\\"before the appeals were taken, and before the final order of condemnation had been made,\\u2014viz., April 8,1902,\\u2014the board of supervisors of the county of Madera passed an ordinance declaring the road in question a public highway, and granted a franchise to the Madera Granite Company to construct and operate for the period of twenty-five years a railroad thereon; that by virtue of these ordinances the Madera Granite Company and Wilhelmina McLennan have entered upon the right of way included in the judgment of condemnation, and are excavat ing and constructing a railroad thereon; that said ordinances are the only authority they have to enter upon said land; and that their said entry and acts \\\"were committed and done before the entry of any final order of condemnation.\\\"\\nAlthough the proceedings before the superior court were initiated by a petition from McLennan to the board of supervisors, yet neither McLennan nor the Madera Granite' Company is a party to this action, or with any right to direct the proceedings before the superior court, or in any way subject to the control of the court therein; and as they are consequently not within the appellate jurisdiction of this court, a writ of supersedeas cannot be directed to them. Their acts are shown to have been independent of the judgment of condemnation and disconnected with the proceedings before the superior court. Section 949 of the Code of Civil Procedure provides that when an appeal is perfected it stays all proceedings \\\"in the court below upon the judgment or order appealed from.\\\" If, notwithstanding such appeal, the court below attempts to enforce the judgment or order appealed from, this court will issue a writ of supersedeas to restrain such action. The writ is, however, directed to the court or to the officer thereof by whom it is seeking to enforce the judgment. In Dulin v. Pacific W. and C. Co., 98 Cal. 304, we said: \\\"The writ itself is directed to the court whose action is sought to be restrained, or to some one of its officers, and is limited to restraining any action upon the judgment appealed from. It cannot be used to perform the functions of an injunction against the parties to the action, restraining them from any act in the assertion of their rights, other than to prevent them from using the process of the court below to enforce the judgment, nor can the writ be employed for any purpose upon persons not parties to the judgment.\\\" (See, also, Rose v. Mesmer, 131 Cal. 631.)\\nCity of Los Angeles v. Pomeroy, 132 Cal. 340, where this court, in addition to granting the motion for a writ of supersedeas, enjoined \\\"the plaintiff from doing certain acts pending the appeal, is cited by the appellant in support of its present\\\" application. The want of power in this court to grant an injunction does not appear to have been suggested in that case, and is not discussed in the opinion, the opinion being limited to determining whether the order was appealable, and whether the undertaking given operated to stay proceedings \\\"upon the order appealed from.\\\" No reference was made to the many cases in which this court had previously held that it did not have such power, and no authority to the contrary was cited. Under these circumstances, it cannot be held that the court intended to overrule these cases, or to set aside the well-established rule that a writ of sv/persedeas runs only to the court below or to its officers, or to hold that this court has original jurisdiction to issue an injunction against persons who are not parties to the appeal. What was said or done in that case, from which a contrary doctrine may be implied, must therefore be disregarded. In Dulin v. Pacific W. and C. Co., 98 Cal. 304, we said: \\\"The stay of proceedings upon the enforcement of the judgment, resulting from the appeal, cannot prevent the moral support which the rendition of the judgment may give to the other directors, or form the basis of an injunction- against them, nor can it be invoked to prevent the respondent from committing a trespass against the appellant.\\\"\\nThe right of the board of supervisors of Madera County to pass an ordinance declaring the road a public highway, or to grant a franchise for the construction of a railroad thereon, was in no respect connected with the proceedings appealed from, and was not affected by the judgment of condemnation. If either of these ordinances were unauthorized or illegally adopted, they will not constitute any protection for a trespass committed upon the lands of the appellant by virtue thereof, but the superior court is the forum in which to obtain redress against such trespass. Whether the board of supervisors was authorized to pass these ordinances, or whether the Madera Granite Company and McLennan are seeking by their proceedings indirectly to acquire a right to invade the appellant's land which could not be directly given, are questions irrelevant to the present motion, and not open for determination.\\nIt is not shown that the superior court is seeking to enforce its judgment, or that any application has been made to it for the purpose of enforcing the judgment, or that any proceedings whatever in reference to the judgment have been taken therein since the appeals were taken, nor is the superior court, or the judge thereof, made a respondent herein, or represented upon this application. We are therefore not called upon to determine whether the appeals had the effect to suspend the power of the court to enforce its judgment, nor can we assume, in the absence of any action by that court, that, if they did have such effect, the court would disregard it. (Rose v. Mesmer, 131 Cal. 631.)\\nThe application for the writ is denied.\\nMcFarland, J., Garoutte, J., and Beatty, C. J., concurred.\"}"

cal/2082829.json

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+"{\"id\": \"2082829\", \"name\": \"THE PEOPLE, Plaintiff and Respondent, v. AUGUSTINE R. LUNA, Defendant and Appellant\", \"name_abbreviation\": \"People v. Luna\", \"decision_date\": \"1982-04-12\", \"docket_number\": \"Crim. No. 12893\", \"first_page\": \"550\", \"last_page\": \"552\", \"citations\": \"130 Cal. App. 3d 550\", \"volume\": \"130\", \"reporter\": \"California Appellate Reports, Third Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T18:59:51.311346+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PEOPLE, Plaintiff and Respondent, v. AUGUSTINE R. LUNA, Defendant and Appellant.\", \"head_matter\": \"[Crim. No. 12893.\\nFourth Dist., Div. Two.\\nApr. 12, 1982.]\\nTHE PEOPLE, Plaintiff and Respondent, v. AUGUSTINE R. LUNA, Defendant and Appellant.\\nCounsel\\nQuin Denvir, State Public Defender, under appointment by the Court of Appeal, Richard B. Lennon and Cynthia Choy Ong, Deputy State Public Defenders, for Defendant and Appellant.\\nGeorge Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Daniel J. Kremer, Assistant Attorney General, Michael D. Wellington and Robert B. Shaw, Deputy Attorneys General, for Plaintiff and Respondent.\", \"word_count\": \"398\", \"char_count\": \"2465\", \"text\": \"Opinion\\nGARDNER, J.\\nOn February 12, 1981, defendant was arrested for burglary. At that time he had been a parole absconder since September 10, 1980. On February 13, 1981, a parole hold was placed on him. This parole hold contained charges of five violations, only one of which was the burglary. The others were (1) failure to keep his parole agent notified of his whereabouts, (2) failure to comply with monthly narcotic testing, (3) refusing to correctly identify himself to a police officer and (4) having access to a loaded revolver. He now wants credit under Penal Code section 2900.5 for time in custody prior to sentencing. No way.\\nWhatever one may think of the rationale of People v. Penner (1980) 111 Cal.App.3d 168 [168 Cal.Rptr. 431] and the majority opinion in People v. Simpson (1981) 120 Cal.App.3d 772 [174 Cal.Rptr. 790], both of which cases allow presentence credit when the parole revocation is based on the newly charged crime, this case is factually distinguishable. It is not controlled by those cases.\\nHere the defendant was not only on parole at the time of arrest, he was a parole absconder. The revocation of parole was not \\\"attributable to the proceedings related to the same conduct for which the defendant had been convicted.\\\" (Pen. Code \\u00a7 2900.5.) As the trial court properly noted, the defendant had been violated for five reasons, only one of which was the instant burglary charge. Even had the defendant not committed this offense, he was subject to parole revocation. Thus, he had no \\\"liberty\\\" interest which was being protected while he was in custody. He is not entitled to presentence credit.\\nJudgment affirmed.\\nKaufman, Acting P. J., and McDaniel, J., concurred.\\nAppellant's petition for a hearing by the Supreme Court was denied July 7, 1982.\\nRetired Presiding Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.\"}"

cal/2108487.json

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+"{\"id\": \"2108487\", \"name\": \"EMILIE G. COHEN, Appellant, v. LA CANADA LAND AND WATER COMPANY et al., Respondents\", \"name_abbreviation\": \"Cohen v. La Canada Land & Water Co.\", \"decision_date\": \"1904-03-09\", \"docket_number\": \"L. A. No. 1207\", \"first_page\": \"437\", \"last_page\": \"440\", \"citations\": \"142 Cal. 437\", \"volume\": \"142\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T23:48:07.120142+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"EMILIE G. COHEN, Appellant, v. LA CANADA LAND AND WATER COMPANY et al., Respondents.\", \"head_matter\": \"L. A. No. 1207.\\nDepartment Two.\\nMarch 9, 1904.]\\nEMILIE G. COHEN, Appellant, v. LA CANADA LAND AND WATER COMPANY et al., Respondents.\\nWater-Rights\\u2014Percolating Water\\u2014Springs on Public Land\\u2014Appropriation\\u2014Diversion for Sale\\u2014Damages\\u2014Injunction.\\u2014Where water percolating in springs on public land above plaintiff\\u2019s land, and flowing therefrom, was appropriated for use upon plaintiff\\u2019s-land by means of pipes, plaintiff may recover damages for the diversion of the water from such springs for sale and use on distant lands, with consent of a subsequent owner, of the land on which the springs were situated, and may enjoin' such diversion to plaintiff\\u2019s injury.\\nAPPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. D. K. Trash, Judge.\\nThe facts are stated in the opinion of the court.\\nMontgomery & Earle, and Alfred H. Cohen, for Appellant.\\nAnderson & Anderson, and W. S. Wright, for Respondents.\", \"word_count\": \"1538\", \"char_count\": \"8845\", \"text\": \"McFARLAND, J.\\nThis is an action to have it adjudged that plaintiff is entitled to the use of certain water, to recover damages for alleged diversion thereof, and to enjoin defendants from diverting the same; and the main issue in the case is whether or not the defendants had the right to destroy or materially diminish the flow of water from certain flowing springs belonging to plaintiff by means of tunnels dug by defendants near and under said springs. The judgment of the court below, although nominally in favor of plaintiff as to some matters, was substantially in favor of defendants on the said main issue. Plaintiff appeals from the judgment and from an order denying her motion for a new trial. At the time of the commencement of the action, and at the time of the alleged wrongful acts of defendants, plaintiff was, and for many years prior thereto she and her predecessors in interest had been, the owners of certain described land through which runs a ravine or canon called Snover Canon.\\nThis land is to a large extent agricultural in character, and has been cultivated by plaintiff and her predecessors in orchards, etc., and upon it they have a large house, called Gould's Castle, with flower-gardens, ornamental trees, etc. In Snover Ca\\u00f1\\u00f3n there flows a small stream of natural water, which was used by her and her predecessors to irrigate their orchards, and which is necessary to their maintenance and for domestic purposes at such house. This stream is fed to a considerable extent by certain flowing springs, some of them along the thread of the stream and others a little above in the banks, the waters of which flow in a well-defined stream down into the ca\\u00f1\\u00f3n. These springs, or at least most of them, are situated a little above the upper line of plaintiff's land. But about 1891, when the land on which. they are situated was United States unappropriated public land, plaintiff's predecessors appropriated the waters of the springs and carried them by pipes, etc., to the said house and orchard, and used them there for domestic and irrigating purposes. The court found that such appropriation had been made and had not been abandoned, and that \\\"plaintiff is entitled to use all of the water flowing from said springs, or that may hereafter flow from said springs, or that may flow in any stream down Snover Ca\\u00f1\\u00f3n, and defendants are not entitled to the use of such water flowing from said springs, or that may flow in said stream.\\\" In the latter part of 1898 and the early part of 1899 the defendants went upon the land where these springs are, with the consent of those who then owned that land, and dug several tunnels at, near, and under said springs, and the effect of these tunnels clearly was to entirely dry up some of the springs, and to greatly diminish the flow of water from the others. The water obtained by defendants by and through these tunnels is not used, nor intended to be used, by them for the benefit of the land on which the tunnels were dug, but is taken to other and non-riparian lands for sale. The court found \\\"that part of said waters which were developed in said tunnels would, except for said tunnels, find its way by some unknown subterranean means to said springs and be discharged therefrom.\\\" But it also found that \\\"neither of said tunnels intercepted any known stream of water running in any defined channel,\\\" and \\\"that said springs are not nor is either of them fed by any known stream running in a defined channel\\\"; and for these reasons the court held, in substance, that the loss to plaintiff consequent upon the destruction of the springs, or the diminution of the quantity of water flowing therefrom, caused by defendant's tunnels, was damnum absque injuria, and without remedy. This view, taken by the learned judge of the court below, no doubt was to a great extent justified by the somewhat uncertain condition of the law on the subject at the time of the trial of this cause. There was then considerable authority to the point that underground water not shown to be in the form of a subterranean \\\"stream,\\\" but merely \\\"percolating,\\\" was a part of the soil, and could be removed by the owner of the land at his pleasure, without consideration of the adjoining'proprietors, although there was not much authority to the point that he could take it entirely away from the land for commercial purposes elsewhere. But since the trial of the cause in the court below, it has been definitely settled by this court in Katz v. Walkinshaw, 141 Cal. 116, and subsequent cases, that the question whether one can maintain an action for deprivation of the use of the water by the act of another does not depend upon the fact that the deprivation was caused by the tapping or intercepting of a known stream running in a defined channel, either on the surface or underground. In such an action it is sufficient for the plaintiff to show that wrongful acts of the defendant complained of did actually deprive plaintiff of water to the use of which he was legally entitled; and if these acts consisted of subsurface excavations it is not necessary for the plaintiff to show that a well-defined subterranean stream had been intercepted, or to show the particular subterranean conditions which were disturbed, provided it clearly appears that the acts of the defendant caused the destruction or diminution. And it has been established by these cases that the right of an owner of land to use water percolating therein is a right only to a reasonable use thereof for the benefit and enjoyment of his land, and subject to the maxim Sic utere, etc., and does not include the right, by ex cavations, to diminish the flow of water to others where the diversion is not for a reasonable use on his own land. It would be useless to restate the principles and reasoning by which these conclusions are established; they are fully stated in both the opinions in Katz v. Walkinshaw\\u2014the one by Temple, J., (141 Cal. 138,) and the other by Shaw, J., (141 Cal. 120). In the recent ease of McClintock v. Hudson, 141 Cal. 275, the facts there being very similar to the case at bar, the subject is again somewhat elaborately discussed, and the court, among other things, said: \\\"The case of Katz v. Walkinshaw, decided November 28, 1903, establishes a rule with respect to waters percolating in the soil, which makes it to a large extent immaterial whether the waters in this land were or were not a part of an underground stream, provided the fact be established that their extraction from the ground diminished to that extent, or to some substantial extent, the waters flowing in the stream. By the principles laid down in that case it is not lawful for one owning land bordering upon or adjacent to a stream to make an excavation in his land in order to intercept and obtain the percolating water, and apply such water to any use other than its reasonable use upon the land from which it is taken, if he thereby diminishes the stream and causes damage to parties having rights in the water there flowing.\\\"\\nAs the court below decided this case upon a theory opposed to the one above stated, it no doubt did not consider itself called upon to be very careful about making findings which would have been necessary to a judgment upon plaintiff's theory; and the findings are not full and specific enough to warrant this court in ordering a judgment for plaintiff. We can therefore only render a judgment of reversal. It will be the duty of the court below to find specifically to what extent \\u2014under the views of the law hereinbefore expressed\\u2014the defendants have by their said tunnels and excavations diminished the flow of the water through the said springs, and to. render judgment in favor of plaintiff for such damages and injunction as the facts found may show to be proper.\\nThe judgment and order appealed from are reversed.\\nLorigan, J., and Henshaw, J., concurred.\"}"

cal/2129606.json

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+"{\"id\": \"2129606\", \"name\": \"THE PEOPLE, Respondent, v. ROBERT C. SHERMAN, Appellant\", \"name_abbreviation\": \"People v. Sherman\", \"decision_date\": \"1929-09-17\", \"docket_number\": \"Crim. No. 1842\", \"first_page\": \"587\", \"last_page\": \"593\", \"citations\": \"100 Cal. App. 587\", \"volume\": \"100\", \"reporter\": \"California Appellate Reports\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T02:12:34.439113+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PEOPLE, Respondent, v. ROBERT C. SHERMAN, Appellant.\", \"head_matter\": \"[Crim. No. 1842.\\nSecond Appellate District, Division One.\\nSeptember 17, 1929.]\\nTHE PEOPLE, Respondent, v. ROBERT C. SHERMAN, Appellant.\\nGeorge D. Higgins for Appellant.\\nU. S. Webb, Attorney-General, and James S. Howie, Deputy Attorney-General, for Respondent.\", \"word_count\": \"1635\", \"char_count\": \"9451\", \"text\": \"HAHN, J., pro tem.\\nDefendant and appellant was charged by information filed by the district attorney of Los Angeles County, in each of three counts with the crime of issuing checks without sufficient funds. Count III was dismissed by the court during the trial and a verdict of guilty was found against the defendant upon counts I and II. From this judgment of conviction and denial of his motion for a new trial, defendant prosecutes this appeal.\\nAppellant first urges that there is insufficient evidence to sustain the verdict as to the charge in count I. The evidence relating to this charge may be briefly summarized as follows: Defendant entered the store of the May Company in Los Angeles and purchased certain merchandise, the bill amounting to $12.35. As the merchandise was being wrapped by the saleslady, the defendant made out a check drawn on the United States National Bank for the sum of $12.35, which he tendered in payment for the merchandise. The saleslady before delivering the package to the defendant advised him that it was necessary for her to secure an O. K. on the check, whereupon the defendant stated that he would attend to some errand and return a few minutes later. The check was passed over to one Sabre, whose special duty in the May store was to examine and pass upon checks tendered in payment of purchases. The witness Sabre testified that when the check was handed him, he called up the United States National Bank and was informed by some clerk in the bank that he could find no record in the bank of an account in the name of Robert 0. Sherman. Upon defendant's return, under instructions of Sabre, the saleslady handed the package of merchandise to him. Sabre then accosted defendant, asking him if he was Robert C. Sherman. Defendant answered that he was, and that he issued the check in question. Whereupon Sabre requested him to step to the office, where Sabre informed him of the report he had received from the bank to the effect that they had no record of an account in the name of Robert C. Sherman. Defendant admitted that he had no account there, and added that he had issued several other checks without having funds to meet them. The defendant was relieved by Sabre of the package of merchandise and placed under arrest.\\nAppellant urges, in view of the fact that the May Company was not defrauded out of any money or property, and particularly the fact that before the merchandise was delivered to the defendant, the May Company, through its agent Sabre, had been informed that defendant had no account in the United States National Bank, that no crime had been committed.\\nThere is no merit in this contention. It is not a necessary element to constitute the crime of issuing a check without sufficient funds with intent to defraud, that the person receiving the check shall have been defrauded, or suffered any loss. Section 476a of the Penal Code denounces as a crime the act of one who makes, or draws, or utters, or delivers to another person a check for the payment of money, knowing at the time he makes, draws, utters or delivers such check he has not sufficient funds in or credit with the bank to meet the cheek. In the instant ease it is not disputed that the defendant issued and delivered the check for the purpose of securing the merchandise, and that at the time of so doing, he knew he had no funds in the bank to meet the check. All the necessary elements to constitute the crime are clearly shown. (People v. Williams, 69 Cal. App. 169 [230 Pac. 667]; People v. Khan, 41 Cal. App. 393 [182 Pac. 803]; People v. Bercovitz, 163 Cal. 636 [43 L. R. A. (N. S.) 667, 126 Pac. 479].)\\nThe cases of People v. Wilkins, 67 Cal. App. 758 [228 Pac. 367], and People v. Weaver, 96 Cal. App. 1 [274 Pac. 361], are not in conflict with the authorities above cited. In fact, they do not sustain appellant's contention on the point' involved.\\nThe next point urged is the alleged misconduct of the district attorney in his argument to the jury in making the following statement: \\\"The evidence of The People is not controverted here by any evidence. You have to take it as true. There is no denial here that this is the defendant's handwriting; no denial here that he issued these checks, not a bit in the world.\\\" It is appellant's contention that this language was equivalent to saying that the defendant had failed to take the stand to testify in his own behalf. We cannot agree with appellant's contention in this respect. While the statement complained of may have been susceptible of the interpretation placed upon it by appellant, we do not feel that the language carries with it the vice that has been held to be prejudicial error. Fairly interpreted, it is an assertion that there had been no evidence controverting that presented by the state upon a vital issue in the ease. Such a comment has been held to be within the right of the district attorney. (People v. Sutherland, 59 Cal. App. 462 [210 Pac. 965]; People v. McNamara, 65 Cal. App. 521 [224 Pac. 476].) Furthermore, it appears that no objection was made by defendant to the statement of the district attorney complained of.\\nThe third point raised is that the court erred in overruling the objections of the defendant to a question asked in cross-examination of the defendant's father. The following excerpts from the record cover the episode referred to :\\nBy Mr. McCartney (district attorney) in cross-examination: \\\"Q. Tour name is Graham? A. Yes, sir. Q. You say you are the father of the defendant? A. Yes, sir. Q. What is his true name?\\\" Mr. Sherman (the defendant): \\\"Just a minute, I object to that as incompetent, irrelevant and immaterial, not proper cross-examination. .\\\"\\nThe court: \\\"What was the question again?\\\" (Question read.)\\nThe court: \\\"If you know you may answer the question. A. Alfred Graham.\\\"\\nIt should be noted in considering the foregoing portion of the record that the defendant acted as his own attorney in the trial. The record shows that at the preliminary hearing, defendant gave his true name as Allison Lee Graham, instead of Robert C. Sherman, the name under which he was charged in the complaint. In the information the name Allison Lee Graham appeared. When arraigned he was asked as to his true name, and replied: \\\"Robert C. Sherman,\\\" whereupon the court permitted the district attorney to amend the information by substituting the name of Robert C. Sherman for Allison Lee Graham. Inasmuch as the witness had upon direct examination stated that he was the father of the defendant, and that his name was Alfred L. Graham, it was within the right of the district attorney in cross-examination to inquire into the asserted relationship. The question complained of was germane to that inquiry. Nor can it be urged that the inquiry was not pertinent, for the reason that the name of the defendant is always a pertinent matter in a criminal prosecution. The fact that the defendant had caused his name to be changed twice during the proceedings would make even more pertinent the inquiry as to the real identity of the defendant.\\nAppellant attacks the ruling of the court on the ground that in permitting the question to be answered, it was equivalent to permitting the witness to give the alias names under which defendant may have been known, and which line of inquiry has been held to be prejudicial error. We cannot agree that the question complained of comes within the scope of the cases cited by appellant. In any event, we are satisfied that there was no prejudicial error in the ruling of the court on this point.\\nThe fourth and last point urged has to do with the examination by the court of certain witnesses, which examination the appellant characterizes as \\\"misconduct of the court.\\\" 'We have carefully read the record of the testimony and while it appears that the questioning of witnesses by the court was somewhat more extended than is customary, we do not believe that it can reasonably be said that either in the extent or in the manner of the questioning, did the court exceed its power. The record shows that the defendant requested of the court that the public defender, who had been appointed to represent him, be relieved of the appointment, as he, the defendant, felt he was able to and desired to defend himself. The court reluctantly granted his request in this respect and, as frequently happens under such circumstances, the trial was delayed and the proceedings interrupted, because of the unfamiliarity of the defendant with court proceedings and methods of presenting evidence. The questions asked by the court might very well have elicited information that would have been helpful to the defense. We are satisfied there was no prejudicial error in this examination.\\nThe judgment and order denying defendant's motion for a new trial are affirmed.\\nHouser, J., Acting P. J., and York, J., concurred,\\nA petition for a rehearing of this cause was denied by the District Court of Appeal on September 27, 1929, and a petition by appellant to have the cause heard in the Supreme Court, after judgment \\u2022 in the District Court of Appeal, was denied by the Supreme Court on October 17, 1929.\\nAll the Justices present concurred.\"}"

cal/2133010.json

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+"{\"id\": \"2133010\", \"name\": \"HAMMOND LUMBER COMPANY (a Corporation), Plaintiff and Appellant, v. M. S. YEAGER, Defendant; CORNELIA J. WOODS et al., Defendants and Respondents\", \"name_abbreviation\": \"Hammond Lumber Co. v. Yeager\", \"decision_date\": \"1921-03-28\", \"docket_number\": \"L. A. No. 6432\", \"first_page\": \"355\", \"last_page\": \"361\", \"citations\": \"185 Cal. 355\", \"volume\": \"185\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T19:22:44.920413+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HAMMOND LUMBER COMPANY (a Corporation), Plaintiff and Appellant, v. M. S. YEAGER, Defendant; CORNELIA J. WOODS et al., Defendants and Respondents.\", \"head_matter\": \"[L. A. No. 6432.\\nIn Bank.\\nMarch 28, 1921.]\\nHAMMOND LUMBER COMPANY (a Corporation), Plaintiff and Appellant, v. M. S. YEAGER, Defendant; CORNELIA J. WOODS et al., Defendants and Respondents.\\nMechanic\\u2019s Lien \\u2014 Completion op Building \\u2014 Question op Fact. Under the mechanic\\u2019s lien law, the question as to whether or not a building has been completed is a question of fact and not a question of law.\\nId.\\u2014Trivial Imperfections in Work\\u2014Question of Fact\\u2014Conclusiveness of Finding.\\u2014The question as to what constitutes a trivial imperfection in the work within the meaning of section 1187 of the Code of Civil Procedure, which provides that any such imperfection shall not he deemed such a lack of completion as to prevent the filing of any lien, is one of fact to be determined by the trial court under the conditions and circumstances of each case, and its finding can only be overturned when it can be said that there is no substantial evidence to support it.\\nId. \\u2014 Defects not Permitting Recovery for Substantial Performance\\u2014Trivial Imperfections.\\u2014Any imperfections in the performance of the work which are of so trivial a character as to permit the contractor to recover for substantial performance, notwithstanding the defects, are trivial imperfections within the meaning of section 1187 of the Code of Civil Procedure.\\nId.\\u2014Acceptance and Occupancy \\u2014 Subsequent Replacement of Defective Wood-stone Work\\u2014Time of Completion.\\u2014The time of completion of a building by acceptance and occupancy is not affected by the subsequent removal and replacement of defective wood-stone work at a cost of $35.50, instead of the payment of damages in that amount by way of deduction from the contract price, and liens filed within ninety days after the replacement work, but not filed within ninety days after acceptance and occupancy, are not filed in time.\\nId.\\u2014Time of Completion of Building\\u2014Representations of Contractor to Materialman\\u2014Nonestoppel of Owner.-\\u2014A contractor is not the agent of the owner in the fixing of the date of the completion of the building, notwithstanding the portion of section 1183 of the Code of Civil Procedure which provides the contractor shall be held to be the agent of the owner for the purposes of the chapter, and representations made by the contractor to a materialman as to the date of the completion are not binding upon the owner.\\nAPPEAL from a judgment of the Superior Court of Los Angeles County. Charles Wellborn, Judge. Affirmed.\\nThe facts are stated in the opinion of the court.\\nR. L. Horton for Appellant.\\nGeorge W. McDill for Respondents.\\n3. General rule as to recovery upon substantial performance of a building contract, note, 24 L. R, A. (N. S.) 332.\", \"word_count\": \"2272\", \"char_count\": \"13262\", \"text\": \"WILBUR, J.\\nThe plaintiff brought this action to foreclose a mechanic's lien for the value of building materials furnished to defendant Yeager as contractor for the construction of a dwelling-house on the real property of the defendants Woods.\\nThe cause of action was fully maintained under the evidence, with the exception that it was found that plaintiff's claim of lien was not filed in time, and judgment was rendered for the defendant.\\nThe controversy on this point arises upon a dispute as to the time of the completion of the contract. The trial court found that the plaintiff's contract for furnishing materials was fully performed and completed on or about the twentieth day of September, 1917, and that the building was completed on the twenty-eighth day of September, 1917, and that the defendants Woods paid the contractor, Yeager, the completion payment under the contract for the erection of said building on the said twenty-eighth day of September, 1917, and that said defendants Woods accepted said building as completed and entered into its use and occupation on said date, and ever since said date have continuously occupied and used said building for the purpose for which it was built, to wit, as their private home; that no notice of completion of the construction of such building has ever been filed of record, but that more than ninety days since the said completion of said building has elapsed before the date of filing of the mechanic's lien sued upon herein.\\nSection 1187 of the Code of Civil Procedure provides: \\\" . . . and, in all cases, any of the following shall be deemed equivalent to a completion for all the purposes of this chapter: the occupation or use of a building, improvement, or structure, by the owner, or his representative; or the acceptance by said owner or said agent, of said building, improvement, or structure, or cessation from labor for thirty days upon any contract or upon any building, improvement or structure or the alteration, addition to, or repair thereof; the filing of the notice hereinafter provided for. .\\\"\\nIn the case at bar the evidence is undisputed that the defendants accepted the building as completed on the twenty-eighth day of September, 1917, and on that date entered into the possession and occupancy thereof and had continued at all times subsequent thereto to occupy the same as their home.\\nAppellant's contention that the building was not completed until the twenty-sixth day of October, 1917, is based upon the undisputed fact that after such acceptance and occupancy it was discovered by the contractor that certain wood-stone work constituting the floor of the bathroom and the sinks in the kitchen, composed of a chemical composition, were defective by reason of the fact that the chemicals were improperly mixed. The contractor, believing and claiming that such work would rapidly deteriorate, persuaded both the owner and the subcontractor who laid the wood-stone work to replace the same. The work of replacement was completed October 26, 1917. The appellant's contention is that the removal of the defective work and its replacement was a part of the original contract and that the time for filing liens began at the time the work was finally replaced by good material, and that, therefore, its claim of lien having been filed within ninety days after October 26, 1917, it was filed in time.\\nThe question as to whether or not a building has been completed is a question of fact and not a question of law. It is provided in section 1187 of the Code of Civil Procedure that \\\"Any trivial imperfection in the said work, or in the completion of any contract by any lien claimant, or in the construction of any building, improvement or structure, or of the alteration, addition to, or repair thereof, shall not be deemed such a lack of completion as to prevent the filing of any lien; .\\\" What constitutes a trivial imperfection is a question of fact to be determined by the trial court under the conditions and circumstances of each case (Willamette etc. Co. v. College Co., 94 Cal. 229, 238, [29 Pac. 620]; Bianchi v. Hughes, 124 Cal. 24, 27, [56 Pac. 610]). This finding can only be overturned when it can be said that there is no substantial evidence to support it (Harlan v. Stufflebeem, 87 Cal. 508, [25 Pac. 686] ; Schindler v. Green, 149 Cal. 752, 755, [87 Pac. 626]). No doubt any imperfections in the performance of the work which were of so trivial a character as to permit the contractor to recover for substantial performance notwithstanding such defects would be trivial imperfections within the meaning of section 1187 of the Code of Civil Procedure. This was the view of the court in Willamette etc. Co. v. College Co., supra. \\\"In the absence of any statutory qualifications or definition of the term completion, ' there would be no room for its construction by the court, but it would be construed to mean actual completion, and would be a question of fact to be determined in each case. The statute has, however, provided that a substantial completion is all that is required in any case, whether the work be done at the direct instance of the owner, or under the provisions of a contract between him and an original contractor, by declaring that a 'trivial imperfection' shall not be deemed such a lack of completion as to prevent the filing of a lien.\\\"\\nThere have been a number of recent decisions by this court upon the subject of substantial compliance in the case of building contracts and there has been a tendency to a more liberal view of that subject than formerly. These cases are cited in the recent case of Thomas Haverty Co. v. Jones, ante, p. 285, [197 Pac. 105]. In the case of Rischard v. Miller, 182 Cal. 351, [188 Pac. 50], the contractor was allowed to recover for a substantial performance of the contract although there were much more serious imperfections than in the case at bar. It is clear from the foregoing cases that the trial court was justified in finding that there was a substantial performance of the contract on September 20th. This performance was followed by acceptance and occupancy and payment of the installment due upon the completion of the building on September 28th.\\nThat the contractor subsequently replaced the work defectively done at a cost of $35.50, instead of paying damages in that amount by way of deduction from the contract price, does not alter the fact. that the work had been substantially completed on September 20th and accepted as such on September 28th.\\nWe conclude, therefore, that the finding of the trial court that the building was completed September 20, 1917, is sustained by the evidence.\\nAppellant also claims that the defendants are estopped from contending that the 26th of October is not the date of completion because of certain conversations between appellant and the contractor with relation to the completion of the building. These conversations were testified to by R. C. Johnson, collector and credit man for the appellant. He testified as follows: \\\"I presented our bill to Mr. Yeager, and he said that he could not pay us for the reason that the wood-stone work that had been put in was very poor, and that he would have to have that replaced before he could\\u2014 before the Woods would accept the job, and before he could get his payments from them.\\\" He also testified that on October 27, 1917, he again presented his account to the contractor, and the contractor said: \\\"the wood-stone people had just replaced their work, and that undoubtedly now he would be able to get the job accepted, and have our money for us very shortly. . . . He said that the job had been completed the day before, that is, on the 26th of October. .\\\" The witness also testified that shortly before filing the claim of lien he again saw Mr. Yeager and told him \\\"that the account was long past due, and our time for filing the lien was getting rather short, and that we must insist on his paying it or the lien would be filed; and I told him that on account of his past business relations with us we didn't care to file a lien if there was any opportunity for him to get the money and pay it, and he said, 'Well, I will tell you what you do, Johnson: you hold that off as long as possible, if you do have to file a lien, and you can collect from the Woods, why, if there is a deficiency, why, I will give Woods my note for the deficiency. ' I told him we insisted upon being paid in full.\\\" Johnson also testified that he relied upon the date given him by Yeager.\\nAppellant's claim is that the contractor was the agent of the owner and that his representations were consequently binding upon the owner and operated to estop the owner from claiming that October 26th was not the date of completion. This contention is based upon that portion of section 1183 of the Code of Civil Procedure reading as follows: \\\" . . . every contractor, subcontractor, \\\" architect, builder or other person having charge of the construction, alteration, addition to or repair either in whole or in part of any building, or other improvement as aforesaid shall be held to be the agent of the owner for the purposes of this chapter.\\\" There is nothing in the chapter which requires the owner to inform the materialmen as to the date of the completion other than by filing a notice of completion. The statute does not purport to give authority to a contractor or architect to represent the owner in fixing the date of completion. The interests of the contractor and owner with reference to the date of completion are hostile, and it is apparent from the record in this case that the contractor was acting in his own interest in endeavoring to hold off appellant's lien until after he had obtained his thirty-five day payment. Our view concerning the limited nature of the contractor's agency is in accord with the views of the supreme courts of Washington, Oregon, and Idaho (Whittier v. Puget Sound etc. Co., 4 Wash. 666, [31 Am. St. Rep. 944, 30 Pac. 1094]; Fits v. Howitt, 32 Or. 396, [52 Pac. 192]; Valley Lumber Co. v. Nickerson, 13 Idaho, 682, [93 Pac. 24]). The owner is not estopped by the representations.\\nThere is nothing in the point that the owner by withholding and refusing to pay the contractor the thirty-five day payment under his contract until he had settled with all lien claimants, including the plaintiff, was a \\\"eotemporaneous construction\\\" by the parties to the contract that the building was not accepted until October 26, 1917.\\nJudgment affirmed.\\nShaw, J., Lennon, J., Olney, J., Lawlor, J., and Angellotti, C. J., concurred.\"}"

cal/2151674.json

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+"{\"id\": \"2151674\", \"name\": \"THE PEOPLE, Plaintiff and Respondent, v. LYNWOOD JONES, Defendant and Appellant\", \"name_abbreviation\": \"People v. Jones\", \"decision_date\": \"1965-02-18\", \"docket_number\": \"Crim. No. 4314\", \"first_page\": \"379\", \"last_page\": \"392\", \"citations\": \"232 Cal. App. 2d 379\", \"volume\": \"232\", \"reporter\": \"California Appellate Reports, Second Series\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T23:44:25.772309+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PEOPLE, Plaintiff and Respondent, v. LYNWOOD JONES, Defendant and Appellant.\", \"head_matter\": \"[Crim. No. 4314.\\nFirst Dist., Div. Three.\\nFeb. 18, 1965.]\\nTHE PEOPLE, Plaintiff and Respondent, v. LYNWOOD JONES, Defendant and Appellant.\\nRobert R. Potter and Malcolm J. Rainsford, under appointment by the District Court of Appeal, for Defendant and Appellant.\\nStanley Mosk, Attorney General, Robert R. Granucci and Michael R. Marron, Deputy Attorneys General, for Plaintiff and Respondent.\", \"word_count\": \"4847\", \"char_count\": \"28118\", \"text\": \"DEVINE, J.\\nThis is an appeal from judgment of conviction of murder in the second degree.\\nI. The Facts\\nA. The Victim\\nThe body of Alice Faye Jones, who, though having the same name, was not the wife of appellant, nor related to him, was found by her young son at about 6 :40 p.m. on Sunday, August 12, 1962. Norris Finlayson, M.D., an experienced autopsy surgeon, testified that death was caused by strangulation, and that a considerable amount of force must have been applied in order to cause the injuries to the decedent's throat and neck. The instrument of strangulation was a scarf. The physician estimated the time of death to be a period from 6 a.m. to 4 p.m. The earlier time limit is not significant because there is no doubt that the victim was alive much later and was seen at various times in the early afternoon. The later limit is more important. The physician testified that the minimum period of time between the taking of the temperature of the body at 10 p.m. and the time of death was six hours, so that it is rather well established that the killing took place not later than 4 o'clock in the afternoon. The blood had an alcoholic content of .25 or .26.\\nFrom the whole record, it appears that the victim was a heavy drinker. She had been committed to the state hospital a year or so before the killing. She had a police record of narcotics violations, and she had many men friends.\\nB. Association of Appellant and the Victim\\nAppellant and the victim were often together, and they had spent Friday night and Saturday immediately prior to the killing at appellant's apartment. They had had quarrels which had been heard by decedent's mother, and appellant would \\\"get kind of unruly.\\\" Appellant and decedent would shove each other around, but the mother never saw him raise his hand to hit her daughter. On one occasion, about a month before the killing, the mother, Mrs. Cooks, heard her daughter scream, \\\"Mother.\\\" The mother rushed into decedent's room, breaking a lock on the door. There she found her daughter sitting on the side of the bed, crying, with her hand under her chin, in a manner which the mother indicated but which is not described for the record. (However, we may take it that the gesture had to do with a hand at the throat, as the district attorney argued to the jury, since we must draw the inferences which are the most favorable to respondent, and particularly so because the trial judge denied motion for new trial.) The decedent asked appellant, who was sitting on a couch near the bed, why he didn't tell Mrs. Cooks what he was trying to do to her, and appellant responded that there wasn't anything wrong with the decedent.\\nC. Testimony of Witnesses Other Than Appellant\\nOn the morning of Sunday, the day of the homicide, appellant and decedent were together at the community kitchen of appellant's apartment house, where they were seen by Mrs. White, the last witness to identify the two together during decedent's lifetime.\\nOn Sunday afternoon, witness Jackson, who lived on the second floor of 1759 Fillmore Street, directly under the dece dent's room, was in his apartment. He and a friend, one Smith, who also lived in the building, were listening to the baseball game on the radio. During the game decedent visited Jackson's apartment to borrow an iron. According to Jackson, this was during the third or fourth inning; according to Smith, it was about the sixth inning, or around 2 p.m. The baseball game that day commenced at 12:59 p.m. and ended at 3:21 p.m. The second inning ended at 1:41 p.m. and the seventh inning began at 2:41 p.m. While the decedent was in Jackson's apartment, Jackson heard footsteps overhead. Remarking that it might be appellant, decedent left Jackson's apartment and went upstairs. Sometime after this, Jackson heard someone sit on the bed in decedent's room. He could not be exact about the time, but mentioned an hour after decedent left him as a possibility.\\nAt about 2:45 or 2:50 on Sunday afternoon, after attending church and having supper at a relative's, Mr. Cooks, decedent's stepfather, entered 1759 Fillmore Street to go to his apartment on the third floor. He found the door between the second and third floors locked. There was an inside bolt. He attempted to unlock the door with his key, banged on it, and tried to kick it down, but all to no avail. He then went across the street to purchase a package of cigarettes. When he returned, about 10 or 15 minutes later, he was able to get in the door which had previously been locked. He went up to his apartment, passing decedent's room, but he did not look in, nor did he hear any noise. From 3:10 until 4:45 p.m., Mr. Cooks heard no noise from the decedent's room and he saw no one.\\nAfter the baseball game was over, sometime between 4:30 and 5 p.m., appellant came to Jackson's apartment and said, \\\"Cheek on your daughter. The last time I saw her she was in bad shape.\\\" Jackson had no daughter, and appellant had never before referred to the decedent as his daughter, but Jackson had looked after the decedent and had been protective towards her because of her alcoholism. Jackson did not go up to check on the decedent because he did not understand appellant. At this time, appellant appeared to Jackson to be drunk.\\nD. Appellant's Statements to Police.\\n1. Statement of Monday, August 13, 1962. Appellant was first interrogated by Inspector Curtin of the San Francisco Police Department at 1:30 a.m. on Monday, August 13, 1962. At that time, appellant stated that the decedent came to his place Friday night as he was preparing to go to work. He left his keys with her, and when he returned from work the next morning, she was in his room. After he had done some shopping and had tried to cash a check, they went to bed and did not arise until 9 o'clock that night. They then visited a few taverns, returning to his place after 2 a.m., Sunday, the day of the homicide. When they awoke Sunday morning, they had sexual intercourse. They talked of going to the beach, and the decedent wanted to change her clothes. At 1:15 p.m., they left appellant's apartment. On the way, appellant remonstrated with decedent for drinking wine from a bottle as they walked. They arrived at decedent's place at about 2 o'clock. The decedent was talking about what to put on, and appellant told her to change, that he would be back. He then left. When he returned a short time later, as he was knocking on her door, she came up from downstairs, saying that she had tried to borrow an iron. They entered her room at about 2:30 p.m. While decedent put on a pair of Capri pants, appellant stood outside in the hallway. When they subsequently went downstairs and out onto the sidewalk in front of the apartment building, the decedent changed her mind about going to the beach. As appellant started to walk away, decedent called him back and told him, \\\"You see that man across the street? That is Pasquale. He doesn't like me to be associating with other people.\\\" Appellant then left her; the time was about 3 p.m. After having a few drinks, he went home.\\n2. Statement of August 16, 1962. It will be observed that in his original statement to the police, appellant made no reference to the visit to Jackson. The police confronted appellant, at the second interrogation, with his failure to speak of the visit to Jackson. He replied that the reason he had not told the police was that he was afraid and knew there was something wrong. Appellant described the position of the victim on the bed, which corresponds substantially with the photographs of the body which were taken by the police.\\nE. Appellant's Testimony at the Trial.\\nAt the trial, appellant's testimony generally followed the revised account which he had given to the police. He also gave his own version of the incident described by Mrs. Cooks. According to appellant, decedent was crying because her mother did not want her to rear her child and wanted her to go back with Schools, another male friend of decedent. When Mrs. Cooks heard decedent crying, she broke into the room and asked decedent what was the matter. The decedent told appellant, \\\"You tell her.\\\" Because appellant did not wish to become involved in a family matter, he said, \\\"There isn't anything wrong with her, Mrs. Cooks. \\\" Appellant denied that decedent had screamed, and thus put his testimony directly in contradiction with that of Mrs. Cooks. Appellant's testimony also conflicts with that of Mrs. Cooks in that his account of what decedent said is simply, \\\"You tell her\\\"; while Mrs. Cooks' testimony is that decedent said, \\\"why don't you tell mother what you were trying to do to me ? ' '\\nAppellant's testimony also collides with that of Jackson. Appellant testified that he told Jackson that decedent (by what designation he referred to her is considered below) \\\"is out up there\\\" and to \\\"go up there\\\" and that she was \\\"in bad shape up there.\\\" (Italics added.) In his second statement to the police, appellant had said that he had told Jackson \\\"to go upstairs, that Alice was drunk, and that she needed help.\\\" Jackson's testimony is that appellant did not say that Alice was in bad shape at the time, but that the last time he saw her she was in bad shape. He testified that appellant did not say, \\\"Go up and see,\\\" but just said, \\\"Check on your daughter. ' '\\nThere is further contradiction and discrepancy in the matter of appellant's naming of decedent in his conversation with Jackson. When appellant first told the police about the conversation (it will be recalled that this was at the second interrogation, because he made no reference to the subject at all in the original one), he was asked if he had referred to decedent as Jackson's daughter. He denied that he had done so. At the trial, Jackson testified that appellant did not mention decedent by name, but called her \\\"your daughter.\\\" After Jackson's testimony had been given, appellant said he did not know which appellation he had used, either \\\"your daughter\\\" or \\\"your girl Alice.\\\" Finally, appellant's testimony is in contradiction with that of Jackson in this respect: Appellant testified that when he told Jackson that decedent was \\\"out . . . drunk or sick or something,\\\" Jackson replied, ' She is all right. She will be all right after a while, just like she always is.\\\" Jackson denied this. Jackson testified that appellant was intoxicated, but appellant denied that he was, and his testimony is that in the whole day he had no more than one Vodka Collins and about two and a half beers.\\nAt one point in his testimony, appellant states that he was \\\"a little excited\\\" when he discovered decedent lying on the bed, that he did not know \\\"if she was drunk or had had an epilepsy spell or what\\\"; and in replying to a question why he should have been excited to have found her to be drunk, he said, ' ' I never seen her lying half way on the bed like that and her pants down.\\\" Although, by his own admission, he knew her condition to be serious, he made no further investigation and rendered no assistance except to make the report to Jackson. He did not attempt to have Jackson go with him back to the room. He testified that he \\\"started home.\\\" He went to bed about 6:30 p.m.\\nP. Physical Evidence.\\nThe prosecution produced three items of physical or demonstrative evidence.\\n1. Photographs of the premises and of the victim's body. Her room was exceedingly small The door opened almost directly towards the bed, which was very near. The upper part of the body is lying on its back on the bed, but the legs are extended to the floor. One thigh is extended through Capri pants, but the other leg is unclad, and almost the whole of the victim's body, from the abdomen down, is naked. The position of the body, half on and half off the bed, is such as to suggest to anyone at first sight that the woman is not in the repose of sleep. A slip, or undergarment, appears to have been pulled up. Over this is a sweater. A scarf is around the throat. One hand almost touches it.\\n2. A pair of appellant's shorts, taken from his room, had a semen stain. This, however, is not of much significance, even though spermatozoa were found in the victim's vagina. There was no attempt to show that appellant had produced this. Besides, appellant testified, and had told the police in his original story, that he had intercourse with the victim on Sunday morning.\\n3. Two notes written by decedent to appellant were found by the police in appellant's room. These notes indicate a disagreement, but they do not indicate the time. Appellant testified that they were written by decedent on Saturday, the day before her death, and that the reason was merely his undue delay in returning from a shopping tour. But one of the notes is susceptible of the inference that decedent and appellant were thinking of breaking off their relationship. It says: \\\"All jokes aside, I waited for you to return but I guess you mean what we were talking about this morning so, I think I had better cut out., I won't say I don't know I came into this thing with my eyes wide open. So have a Good Time Baby & I'll Be Seeing You. A\\\"\\nThe defense offered one item of physical evidence, a photograph of deceased, which appellant testified was taken with a Polaroid camera on the morning of her death. The back of this picture is inscribed, \\\"To Lynn, Love, Alice.\\\"\\nG. Summary of the Evidence Against Appellant.\\nThe case against appellant is this: He is the last known person to have been in the company of the victim; he was with her, according to one of his statements, until 3 o'clock in the afternoon; and she was dead, according to medical testimony, no later than 4 p.m. and, of course, possibly earlier. At a time about 2:45 p.m. the door to the upper story was bolted from the inside, which would give opportunity to the killer either to perpetrate homicide or to avoid immediate detection (the door to the room itself could not be locked, the lock having been broken in the earlier incident of Mrs. Cooks' dash in reply to her daughter's outcry). Appellant's story of departure because of decedent's alleged change of mind need not have been believed by the jury; appellant said he found the victim lying on the bed in the manner described above, and the jury reasonably could conclude that this was not true because a person viewing the body at such short range could not but have observed that Mrs. Jones had been the victim of homicide and, indeed, could not have failed to see the scarf around her neck; appellant gave an unreasonable account of the condition of Mrs. Jones to Jackson. Appellant concealed from the police, at the original interrogation, his alleged discovery of his companion, and concealed from them his conversation with Jackson; he would have led the police to believe that he had not seen decedent since he left her at 3 o'clock. Appellant had quarreled at other times with decedent; and it is inferable from evidence recited above that on one occasion he attempted to choke her. Appellant's testimony conflicts with the testimony of other witnesses in several respects, as related above. Decedent's note gives evidence of a disagreement more serious than that which would arise from overstaying a shopping tour, and refers to an earlier conversation which would seem to have related to a severing of relations.\\nH. Defense.\\nThe defense relies upon weakness of the prosecution case, which, of course, is almost wholly based on circumstantial evidence; appellant's own testimony of his leaving Mrs. Jones; his continued denial of guilt; the testimony of Mrs. Chastang; the opportunity for others, and in particular, Pasquale, to have committed the crime; the fact that Pasquale had told decedent that if he couldn't have her, no one else could, and the evidence from decedent's mother that she had been told that a few days before the homicide Pasquale was \\\"trying to kill\\\" Alice, apparently in an episode of battery; and testimony of two witnesses as to appellant's good reputation for peace and quiet, testimony which was not challenged by cross-examination about any prior offenses.\\nMrs. Chastang testified that about 3 p.m. on Sunday, she saw decedent with a tall, light-complected Negro. As she watched, decedent and this man walked to the steps of the decedent's apartment house, stood there for a while, and then went upstairs. The man was not appellant, Schools, Mr. Cooks, or Pasquale. Although Mrs. Chastang kept watching until almost 4 p.m., she did not see decedent come back out, nor did she see anyone that she knew go into the decedent's house.\\nMrs. Chastang's testimony, however, is not necessarily reliable. She did not recognize the deputy district attorney who had visited her a few days before the trial. Moreover, she testified that decedent was wearing a blue skirt at the time. At about 3 o'clock, when appellant says he left decedent, she was wearing black Capri pants. When she had entered her dwelling with appellant about an hour earlier, she had been wearing a blue skirt.\\nII. Sufficiency of the Evidence to Support the Verdict\\nOn appeal, the function of the court is not to determine whether the ultimate findings were established beyond a reasonable doubt, because that function lies within the exclusive jurisdiction of trial judges and juries. (People v. Scott, 176 Cal.App.2d 458, 497 [1 Cal.Rptr. 600].) The rule that circumstantial evidence must be consistent with guilt and inconsistent with any reasonable hypothesis of innocence, is a rule of instruction for the guidance of the jury. (People v. Cullen, 37 Cal.2d 614, 625 [234 P.2d 1]; People v. Newland, 15 Cal.2d 678, 682 [104 P.2d 778].) After con viction, all intendments are in favor of the judgment and a verdict will not be set aside unless the record clearly shows that upon no hypothesis whatever is there sufficient substantial evidence to support it. (People v. Kerr, 37 Cal.2d 11, 16 [229 P.2d 777] ; People v. Lindley, 26 Cal.2d 780, 791 [161 P.2d 227].)\\nApplying these rules of law to the testimony recited above, we cannot say that there was not substantial evidence for the verdict of the jury. The verdict gains strength from the fact that the judge denied motion for new trial.\\nSupport for judgment of second degree murder, rather than manslaughter, is to be found from the provisions of section 1105 of the Penal Code, there having been no proof of circumstances of mitigation, justification or excuse; from the manner of the killing; and from defendant's conduct following the homicide. (People v. Ogg, 159 Cal.App.2d 38, 51 [323 P.2d 117].)\\nIII. Instructions\\n1. Appellant complains of the giving of the instruction on first degree murder. He argues that there was no evidence to sustain a first degree murder, and that the giving of the instruction made it more likely that the jury, concluding that first degree could not be sustained, would select second degree as appropriate; but if only second degree and manslaughter were available verdicts, they might well have selected the lesser of these. Although the district attorney's argument to the jury seems to have pointed toward second degree rather than first, nevertheless it was pointed out to the jury that the use of such force as was needed to effect the strangulation could show a deliberate intent to lull, such as to justify first degree. This was, at least, an arguable theory upon which the court properly instructed the jury. Moreover, counsel for appellant at the trial agreed that instructions on the two degrees of murder should be given. No case has been cited to support the proposition that the giving of an instruction on a higher degree than that of which the appellant has been convicted is error; but even if it would be error in a case where no justification for the instruction could be offered, this is not such a case.\\n2. Although, as stated above, appellant's counsel said he did not wish instructions on manslaughter because his position was that defendant did not commit the crime at all, the court did instruct on involuntary manslaughter. Ap pedant now argues that error was committed when, the jury having returned for further instruction at the court's instance, the judge suggested that they first arrive at a decision whether the accused were guilty of some offense, and if they so decided, discuss the \\\"degree.\\\" He argues that since manslaughter does not have degrees, this indicated to the jury that they should bring in a murder verdict. But, within a sentence or two, the judge referred to involuntary manslaughter, and we are satisfied that the jury understood the judge to be referring to the possible grades of homicide, including manslaughter.\\n3. Appellant argues that an instruction on voluntary manslaughter should have been given. The court specifically asked counsel if, because of the position of the defense, which was simply that the defendant did not commit the crime, instructions on manslaughter should not be given. Counsel replied, \\\"That is correct.\\\" Appellant argues that the court should have given the instruction on its own motion. Appellant's argument is that there was evidence that appellant and deceased used to get into some pretty stiff arguments and that they shoved each other around. There is also evidence of appellant's being drunk on the day of the homicide. If, however, the court should have instructed on voluntary manslaughter on its own motion in the absence of any expression of counsel for the defense, we do not believe that the court should have done so when counsel had expressed himself as just stated. Counsel for defendant might well have deemed an instruction for manslaughter to be logically incompatible with the claim that he was not the person who committed the crime. (See People v. Dixon, 192 Cal.App.2d 88, 91 [13 Cal.Rptr. 277].)\\n4. An instruction was given that evidence of statements made by the deceased that the defendant had threatened her with harm was received for the sole purpose of showing the state of mind of the deceased, and that the evidence that she made those statements does not in any way tend to prove that defendant actually made those threats, if any. Appellant contends that this was prejudicial because there was no evidence of threats made by defendant. [9] Evidence of prior assaults, however, is admissible. People v. Hopper, 145 Cal.App.2d 180, 196 [302 P.2d 94]; People v. Lint, 182 Cal.App.2d 402, 415 [6 Cal.Rptr. 95].) The instruction obviously referred to the incident testified to by Mrs. Cooks. This, it is true, was something more than a threat. But we do not think the jury was misled. No other evidence of threat by defendant was produced, nor was any referred to by the district attorney in his argument to the jury, although he did refer to the incident of physical violence or the attempt at it.\\n5. Appellant also finds fault with a direction by the judge, when the jury returned for further instruction, that the jury would not have occasion to consider manslaughter unless it found that the defendant was intoxicated, since appellant had insisted that he was completely sober at all times on the afternoon of the homicide. He argues that the court destroyed the possibility of a manslaughter verdict. However, the only theory on which involuntary manslaughter could have been selected as the right verdict, once the jury had found defendant guilty of the homicide, was that he had committed an unlawful act not amounting to felony, namely, battery. The strangulation of the victim by such force as was described by the autopsy surgeon could hardly be thought to be mere battery, and the judge, in giving this as a possibility in case the jury found the defendant to have been drunk, despite his protestation to the contrary, probably gave to the accused a more lenient interpretation than was warranted.\\nIY. Application of the Dorado Rule\\nThe question before us is whether the two statements, or either of them, made by appellant to the police should have been ruled inadmissible because appellant had not been advised of his right to counsel. The first of these statements commenced at about 1:30 a.m., Monday, August 13, 1962, about seven hours after the finding of the body. This statement contained nothing in the nature of a confession. Jones said that he left the deceased at about 3 o'clock. At this time, she was, according to appellant's declaration, standing on the outside steps of the building. The police did not arrest appellant and he was at liberty for about four days after making this statement. The inspector in charge testified that several times he asked Jones if he had \\\"any ideas who he thought might do it\\\" and the police \\\"would run them out.\\\" The right to have counsel present does not extend to that earlier phase, the investigatory one, which is prior to the accusatory stage. (People v. Dorado, 62 Cal.2d 338, 354 [42 Cal.Rptr. 169, 398 P.2d 361].) The fact that, at the investigatory stage, answers given or a story related by one who later is accused may be damaging to him does not, therefore, render the declarations inadmissible.\\nAppellant's second oral statement followed naturally from the first. The police had discovered that, according to Jackson's statement, an extremely significant omission had been made by appellant, namely, that he had seen the victim stretched out on the bed, in bad shape, and this at a time when, according to the autopsy surgeon's testimony, she was dead.\\nThe Dorado rule applies only when (1) the investigatory stage has been converted to an accusatory one, that is, when suspicion has begun to focus on a particular suspect; (2) the suspect has been taken into police custody; and (3) the police have carried out a process of interrogations that lends itself to eliciting incriminating statements. (People v. Dorado, p. 354.) As to (1): It does not appear that the accusatory stage as to Jones had yet been reached. The story of Jones' encounter with Jackson had been given to the police by one person only, namely, Jackson. It was quite possible that Jones would deny this story, and that the story would appear to have been an attempt on Jackson's part to divert suspicion from himself. Jackson was vulnerable to impeachment as an ex-felon, having been convicted of pimping. Jones did admit the encounter, but the police, from all that appears, did not know when they began the questioning that he would do so. As to (2): Whether Jones was actually in custody at the time is not perfectly clear, but there is testimony that he had been brought back to an office of a police detail; and we shall assume that there was actual custody. As to (3): As stated under (1), there is nothing to show that the police had yet focused suspicion on appellant. Their questions were not necessarily adapted to eliciting incriminating statements. An inspector testified that the inquiry was \\\"for the purpose of clarifying some of the discrepancies that he told us\\\" and that they had brought him back \\\"to explain.\\\" We believe the rule of the Dorado case was not violated.\\nIn any event, we believe there was no prejudice. Appellant, having made the first statement, with its gross omission, would have had to give an explanation sooner or later. True, he could have refrained from testifying, but this would have left the visit to Jackson and the remarks to him about the deceased unexplained. There would still have been the cogent evidence of the photographs.\\nJudgment affirmed.\\nDraper, P. J., and Salsman, J., concurred.\\nPasquale was not produced as a witness. An inspector testified (hearsay on cross-examination, but not objected to) that Pasquale had told him he saw the decedent with somebody at about 1 o 'clock, from across the street, but did not identify Jones.\"}"

cal/2151710.json

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+"{\"id\": \"2151710\", \"name\": \"GEORGE L. DEETZ et al., Plaintiffs, Cross-defendants and Respondents, v. VIRGINIA L. CARTER, Defendant, Cross-complainant and Appellant\", \"name_abbreviation\": \"Deetz v. Carter\", \"decision_date\": \"1965-03-15\", \"docket_number\": \"Civ. No. 10832\", \"first_page\": \"851\", \"last_page\": \"858\", \"citations\": \"232 Cal. App. 2d 851\", \"volume\": \"232\", \"reporter\": \"California Appellate Reports, Second Series\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T23:44:25.772309+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GEORGE L. DEETZ et al., Plaintiffs, Cross-defendants and Respondents, v. VIRGINIA L. CARTER, Defendant, Cross-complainant and Appellant.\", \"head_matter\": \"[Civ. No. 10832.\\nThird Dist.\\nMar. 15, 1965.]\\nGEORGE L. DEETZ et al., Plaintiffs, Cross-defendants and Respondents, v. VIRGINIA L. CARTER, Defendant, Cross-complainant and Appellant.\\nMichael T. Hennessy for Defendant, Cross-complainant and Appellant.\\nLorenzen & Otis and David Emery Otis for Plaintiffs, Cross-defendants and Respondents.\", \"word_count\": \"2135\", \"char_count\": \"13320\", \"text\": \"FRIEDMAN, J.\\nThe parties are owners of adjoining agricultural properties in Siskiyou County. The land of Mr. and Mrs. Deetz, plaintiffs, lies easterly of the property owned by Mrs. Carter, defendant, and is somewhat lower in elevation. Various small streams traverse the Carter property and are used by both parties for irrigation purposes. One of these streams, called Cold Creek, originates in springs above the Carter property, flows through the property and down to the Deetz ranch. While it is only 2 feet wide and 10 inches deep, it has a steady year-round flow. The trial court found that plaintiffs and their predecessors have always used the entire flow of Cold Creek for domestic and agricultural purposes. The parties now assert conflicting riparian interests in the water of Cold Creek.\\nCold Creek is the only stream providing the domestic supply of the Deetz family. The entire creek flow is diverted into a ditch and led through a pipe to the house. The water is used in the Deetz home and barn and for the garden sprinkling system. Any surplus beyond household needs is used for agricultural purposes. Cold Creek was never diverted onto the Carter property before the incidents out of which this litigation arose.\\nOn several occasions between 1956 and 1962 Mrs. Carter caused water to be diverted from Cold Creek for irrigation and livestock watering. One means of diversion was a ditch on the Carter ranch which took water through the Carter pens and corrals, ultimately bringing it back to the natural channel which is above the Deetz boundary. This channel was called \\\"Y ditch.\\\" Members of the Deetz family testified that whenever a diminished downstream flow evidenced a diversion of water, they went upstream to turn the water back into the natural channel. In July 1962 a bulldozer became stuck in the mud on the Carter property near Cold Creek, causing the creek to become very muddy. To prevent the water from flowing round the bulldozer, Mrs. Carter diverted the stream into T ditch. After this incident, the present action was filed.\\nThe complaint alleged both diversion and pollution of Cold Creek. Various members of the Deetz family testified that when the creek was flowing at its normal level, the water was clear, but if the level dropped the water became muddy, fouling pipes and appliances. Expert testimony demonstrated that samples taken in July and September 1962 at the point where the stream enters the Deetz ranch, had a bacteria count above the maximum standard for drinking water. The court found that this particular instance of pollution was an isolated one, caused by dead cattle on the Carter ranch, and did not support a finding that Mrs. Carter had polluted the stream.\\nOn conflicting evidence the court found that Cold Creek follows a natural channel through the Carter ranch down to the Deetz property. As originally filed, the trial court decree declared that the entire flow of Cold Creek was necessary for plaintiffs' domestic use. Later this recital was amended to read: ' ' That the entire flow of Cold Creek . is necessary for the agricultural and domestic use of Deetz. ' ' Mrs. Carter was enjoined from interfering with the rights of Deetz and from polluting the stream. She appeals.\\nUnder settled principles of California water law, defendants' upstream diversion entitles plaintiffs to an injunction only if the diversion leaves plaintiffs insufficient water to satisfy their reasonable demands for beneficial use. (Meridian, Ltd. v. City & County of San Francisco, 13 Cal.2d 424, 446 [90 P.2d 537, 91 P.2d 105] ; see also Ivanhoe Irrigation Dist. v. All Parties, 47 Cal.2d 597, 621-623 [306 P.2d 824].)\\nIn the apportionment of water between riparian claimants, need for domestic purposes receives first preference. (Wat. Code, \\u00a7 106.) \\\"Without question the authorities approve the use of water for domestic purposes as first entitled to preference. That use includes consumption for the sustenance of human beings, for household conveniences, and for the care of livestock.\\\" (Prather v. Hoberg, 24 Cal.2d 549, 562 [150 P.2d 405] ; see also Drake v. Tucker, 43 Cal.App. 53, 56 [184 P. 502].) Priority conferred on domestic users by Water Code section 106 is a statutory extension of a tradi t.ional preference accorded to 'natural'' over \\\"artificial\\\" uses. (See Lux v. Haggin, 69 Cal. 255, 406-409 [4 P. 919, 10 P. 674].) There was a question whether the common-law preference for natural uses was available only to an upper against a lower riparian owner; or conversely, whether a downstream claimant could invoke it against one upstream. (1 Wiel, Water Rights (3d ed.) p. 797.) In Drake v. Tucker, supra, 43 Cal.App. 53, the court reserved domestic water for both owners before allowing the upper user any water for irrigation. Likewise, in Prather v. Hoberg, supra, 24 Cal.2d at page 562, a dictum states that equity will protect the lower riparian's domestic use against the upstream claimant's commercial use. Finally, it should be noted, Water Code section 106 makes no distinction between upstream and downstream users. The domestic water need of plaintiffs, as downstream riparian owners, is entitled to priority over the non-domestic need of defendant, the upper riparian.\\nIt follows that plaintiffs are entitled to injunctive relief to protect their reasonable need for domestic water. If plaintiffs reasonably need the entire flow of Cold Creek for domestic purposes, defendant, who had demonstrated no need other than agricultural, was properly enjoined from all use of the creek.\\nDefendant, however, points to the declaration of the decree that plaintiffs require the entire flow of Cold Creek for \\\" agricultural and domestic use. \\\" She correctly asserts that she is entitled to share in any surplus beyond the reasonable domestic needs of plaintiffs. She asserts a \\\"domestic\\\" need of her own, that is, for watering cattle.\\nIn declaring that plaintiffs require the entire flow for agricultural and domestic use, the decree is ambiguous. Considered in terms of plaintiffs' requirements, it permits the implication that plaintiffs do not need the full flow for domestic purposes alone. Considered in terms of actual use, it leaves questions whether, at the point of diversion, Cold Creek supplies plaintiffs with water in excess of actual domestic use and whether this surplus is constant or only occasional. We may look to the entire record to construe this ambiguous judgment. (Estate of Careaga, 61 Cal.2d 471, 475-476 [39 Cal.Rptr. 215, 393 P.2d 415].) Plaintiffs' witnesses testified without contradiction that the creek water was used for household purposes and that any diminution in the normal flow caused stagnation, muddiness and unfitness for household use. Even Mrs. Carter testified to the necessity of returning water to the Cold Creek channel in order to prevent damage to plaintiffs' drinking water. Not all the water was consumed by the Deetz household, and surplus water was used for irrigation and livestock water.\\nIn the apportionment of water among riparian owners, the- amount reasonably needed by any one owner is a question of fact to be determined on the circumstances of the particular case. (Carlsbad etc. Co. v. San Luis Rey etc. Co., 78 Cal.App.2d 900, 911 [178 P.2d 844].) Quality as well as quantity is a factor in water use. If quality maintenance of natural stream water intended for domestic use calls for a flow in excess of actual consumption, then the priority conferred on domestic needs should not be quantitatively limited to actual consumption. Rather, the priority should extend to that flow necessary to make the domestic use effective, even though an excess over actual domestic consumption may become available for nondomestie purposes. Re-use of the excess for other purposes causes the upstream riparian no injury, since he was not entitled to that part of the flow necessary to assure the lower riparian water of adequate quality for his domestic needs. (See Wright v. Best, 19 Cal.2d 368, 378 [121 P.2d 702] ; Joerger v. Pacific Gas & Elec. Co., 207 Cal. 8, 25-26 [276 P. 1017] ; Hutchins, California Law of Water Bights, pp. 184-185; Moskovitz, Quality Control and Re-use of Water in California, 45 Cal.L.Rev. 586, 596-597.)\\nThe trial testimony demonstrates that the decree was really intended as a declaration that plaintiffs' domestic needs demanded the full flow of Cold Creek in order to maintain quality of the water; that plaintiffs ' use of unconsumed water for agriculture was permissible. So interpreted, the decree is valid. Defendant is not precluded from applying for a modification of the decree should circumstances warrant a belief that the flow available to plaintiff is more than that adequate to make plaintiffs' domestic use effective.\\nThere is no merit in defendant's contention that watering her livestock from the stream is a domestic use. The evidence shows that the livestock on the Carter property is raised for commercial purposes. Domestic use includes the watering of barnyard animals, but not herds raised for profit. (Cowell v. Armstrong, 210 Cal. 218 [290 P. 1036].)\\nDefendant also argues that the court erred in allowing plaintiffs to amend their complaint on the day of trial. The original complaint alleged that plaintiffs were entitled to the entire flow of the stream by \\\"prescriptive use.\\\" The amend ment substituted a claim based upon \\\"appropriative and riparian\\\" rights. A trial court's exercise of discretion in permitting pleading amendments will be sustained on appeal in the absence of a clear abuse of discretion. (2 Witkin, Cal. Procedure, pp. 1605-1606.) At the time the amendment was sought, defense counsel objected, pointing out with considerable validity that plaintiffs' counsel could have sought the amendment much earlier. The trial judge then indicated a willingness to consider a request for continuance should the development of evidence indicate that the defense had been prejudiced. The trial commenced. Mrs. Carter was the only witness called by the defense. After hearing the evidence, the judge observed that there was \\\"at least a substantial chance\\\" that defense counsel had been misled by the tardiness of the amendment. The judge then permitted written briefs and said he would deny any requests for further evidence but without prejudice to reopening the ease for more evidence if defense counsel's legal argument showed some reason for it. The defense then submitted a memorandum of law, which made no attempt to point out defenses which would have been available but for the tardy pleading amendment. Defendant did not move to reopen the case for further evidence.\\nFollowing the trial court's decision, defendant moved for a new trial, contending that but for the tardiness of the pleading amendment defendant would have produced expert witnesses (a) to testify that defendant's use did not injure or pollute the water and (b) in order to show that the total flow provided ample water for domestic use plus a surplus-age which, under riparian doctrines, could be shared by defendant. The new trial motion was denied.\\nDefense counsel's irritation over the last minute amendment is quite understandable. Conceivably such an amendment could cause a radical switch in trial plans. There was no good reason why plaintiffs' counsel should delay the amendment to the day of trial. The distinction between prescriptive and riparian water rights is simple, fundamental and readily demonstrated by reference to legal texts and handbooks widely used by members of the California Bar. (See, for example, 2 Witkin, Summary of Cal. Law, pp. 1127, 1132-1135, 1142-1145.)\\nNevertheless, defendant has failed to demonstrate any real injury. The historical facts regarding Mrs. Carter's own entitlement to water were the same regardless of the legal character of plaintiffs' claim. The absence of experts to show lack of pollution by defendant was not prejudicial, because the trial court found that defendant had not actually polluted the water. The pollution issue was not crucial in any event. The issue of water quantity was crucial, yet defendant sought no continuance for the purpose of presenting testimony additional to that of Mrs. Carter and did not seek to reopen the case for further testimony, except through the medium of a new trial motion after decision. Even on the latter occasion, counsel did not attempt to demonstrate actual evidence of an excess flow, but said only that he wanted to produce expert testimony on the subject. Further, as we have indicated, defendant may apply for a modification of the decree, should new circumstances reveal the presence of an excess flow. For these reasons we have concluded that the order permitting amendment of the complaint did not cause a miscarriage of justice.\\nJudgment affirmed.\\nPierce, P. J., and Van Dyke, J., concurred.\\nRetired Presiding Justice of the District Court of Appeal sitting under assignment by the Chairman of the Judicial Council.\"}"

cal/2154994.json

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+"{\"id\": \"2154994\", \"name\": \"ROBERT MIZE, a Minor, etc., Respondent, v. JOHN G. DUFFY, Appellant\", \"name_abbreviation\": \"Mize v. Duffy\", \"decision_date\": \"1930-05-21\", \"docket_number\": \"Civ. No. 7189\", \"first_page\": \"15\", \"last_page\": \"17\", \"citations\": \"106 Cal. App. 15\", \"volume\": \"106\", \"reporter\": \"California Appellate Reports\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T18:08:01.271610+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ROBERT MIZE, a Minor, etc., Respondent, v. JOHN G. DUFFY, Appellant.\", \"head_matter\": \"[Civ. No. 7189.\\nFirst Appellate District, Division Two.\\nMay 21, 1930.]\\nROBERT MIZE, a Minor, etc., Respondent, v. JOHN G. DUFFY, Appellant.\\nB. P. Gibbs, Barry J. Colding and Theodore Hale for Appellant.\\nCharles P. Knights for Respondent.\", \"word_count\": \"653\", \"char_count\": \"3737\", \"text\": \"NOURSE, P. J.\\nPlaintiff, a child of six years of age, sued for personal injuries. The cause was tried before a jury and resulted in a verdict for plaintiff for fifteen hundred dollars. The defendant appeals on typewritten transcripts.\\nWe take the following statement of facts from appellant's opening brief: \\\"Appellant was driving north on Potrero avenue. As he approached the intersection of Twenty-second street at the southeast corner, respondent, whose presence up to that instant had been concealed or partially concealed by the poles on the corner, ran suddenly from the sidewalk into the street and was struck by appellant's automobile. Appellant was between 12 and 18 feet from respondent when he first saw him. At that time appellant was driving at the rate of from 10 to 15 miles an hour and was about 7 feet westerly from the curb.\\\" (But here it should be added that other evidence was offered to show that appellant was driving at a rate of 20 to 25 miles an hour.) \\\"When appellant saw respondent jump into the street respondent was 8 to 12 feet from appellant. Appellant immediately applied his brakes and brought the automobile to a stop about 12 feet from the point where he had hit respondent.\\\"\\nTwo points are made on this appeal\\u2014that the evidence is insufficient to show negligence on the part of appellant, and that respondent was guilty of contributory negligence as matter of law.\\nIn charging negligence to the appellant the respondent relies upon the evidence showing that the block forming the southeast corner of the intersection was occupied by the San Francisco Hospital and was surrounded by a brick wall three feet in height, which was topped with an iron fence six feet in height. It is argued that this wall and fence was such an obstruction to appellant's view of the intersection as to make the legal speed limit fifteen miles an hour. The point raised by appellant is not debatable here. There was a clear conflict in the evidence as to the rate of speed at which appellant was traveling and as to whether the intersection was an \\\"obstructed\\\" or \\\"blind\\\" corner. It was the province of the jury to resolve these conflicts. But aside from the question whether the wall and fence obstructed the driver's view within the mean ing of section 113 of the California State Motor Vehicle Act (Stats. 1923, p. 517), there is the more important question whether appellant was driving in a careful manner in view of all the circumstances. (See sec. 113a, California State Motor Vehicle Act.) It is evident from the verdict that the jury found that he was not.\\nUpon the second point our authorities are in accord with the view that the question of the contributory negligence of a minor child is \\\"ordinarily\\\" a question of fact for the jury. Some of the recent decisions to this effect are Sanders v. Toberman, 192 Cal. 13, 15 [218 Pac. 394]; Varcoe v. Lee, 180 Cal. 338, 341 [181 Pac. 223]; Schroeder v. Baumgarteker, 202 Cal. 626, 628 [262 Pac, 740]. The appellant has not cited any reason why the case of this child of six years is out of the ordinary and, upon the record cited, we must hold that the issue was properly left with the jury.\\nJudgment affirmed.\\nSturtevant, J., and Spence, J., concurred.\\nA petition for a rehearing of this cause was denied by the District Court of Appeal on June 19, 1930, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on July 17, 1930.\"}"

cal/2170759.json

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+"{\"id\": \"2170759\", \"name\": \"ALFRED D. WOODS et al., Respondents, v. HARRY BERRY et al., Appellants\", \"name_abbreviation\": \"Woods v. Berry\", \"decision_date\": \"1931-02-11\", \"docket_number\": \"Civ. No. 3843\", \"first_page\": \"675\", \"last_page\": \"683\", \"citations\": \"111 Cal. App. 675\", \"volume\": \"111\", \"reporter\": \"California Appellate Reports\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T21:19:09.688550+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ALFRED D. WOODS et al., Respondents, v. HARRY BERRY et al., Appellants.\", \"head_matter\": \"[Civ. No. 3843.\\nThird Appellate District.\\nFebruary 11, 1931.]\\nALFRED D. WOODS et al., Respondents, v. HARRY BERRY et al., Appellants.\\nHerbert Choynski and Sidney Rhein for Appellants.\\nCarr & Kennedy for Respondents.\", \"word_count\": \"2495\", \"char_count\": \"14424\", \"text\": \"MR. JUSTICE Pro Tem. McDANIEL Delivered the Opinion of the Court.\\nThis is an appeal from an order denying defendants ' motions for change of place of trial from Shasta County to the city and county of San Francisco, and granting respondents' counter motion to retain the cause in Shasta County.\\nIt is agreed that the action is a transitory one. (Chew v. Storrie, 108 Cal. App. 313 [291 Pac. 610].) This case was here before on motion of respondents for affirmance; opinion filed April 4, 1930. (Woods v. Berry, 105 Cal. App. 90 [286 Pac. 1073].) The facts of the case are sufficiently stated therein. The motion for affirmance rested upon the claim that the transcript had not been properly authenticated by the trial judge. It was ordered by the appellate court that the transcript be withdrawn and returned to the Superior Court in and for Shasta County for the purpose of having the same certified by the judge, as required by section 953a of the Code of Civil Procedure. The corrected and completed transcript, containing all of the affidavits used at the hearing of the motions for change of the place of trial, has been returned and filed. The respondents objected in the court below to the certification of said transcript, notwithstanding direction of this court that it be sent back for that purpose. The objections were overruled, and by stipulation, were included in the transcript before us, and are on four grounds, to wit: \\\"1. That this court has no jurisdiction to act in said matter at this time; 2. That no proceeding in accordance with law has been taken or is pending before this court for the correction of any defect in said transcript; 3. That the application for the certificate and approval of said transcript by the trial judge comes too late; 4. That defendants have been guilty of laches in obtaining and filing a correct transcript upon the appeal herein. ' '\\nIn support of the objections, which are again asserted here, although no appeal from the ruling of the court was taken by respondents, it is argued that the correction of the transcript was not based upon proceedings taken under section 473 of the Code of Civil Procedure to relieve appellants of the default in procuring and filing a reporter's transcript within the time provided by statute and that the charge of laches was obviously well taken.\\nThere is no merit in these objections. The demand for a transcript was in time. Immediately following the discovery by appellants that the original transcript was not signed and certified by the trial judge, they applied to him with request for his certification. Erroneously he refused to sign. The court had jurisdiction as long as this appeal'was pending. The opinion and decision, supra, settled the fact and the law of the case, in so far as the right to certification of the record upon proper application therefor is concerned, and the correction was made on August 7, 1930, within six months thereafter. The record as now before us is in effect a bill of exceptions. \\\"While it does not appear that the defendant in response to said objections made a formal motion for relief from his default under the provisions of section 473 of the Code of Civil Procedure, it does affirmatively appear therein that the trial judge 'exercised his discretion in favor of certifying said transcript ' and thereupon made an order that the same be settled, allowed and certified as and for the bill of exceptions in said cause.\\\" (Stenzel v. Kronick, 201 Cal. 26 [255 Pac. 199].) The presumption is in favor of the ruling of the trial court. (Weyse v. Biedebach, 86 Cal. App. 728 [261 Pac. 1096]; sec. 1963, Code Civ. Proc., subds. 15 and 16.)\\nIt does not appear from the record herein whether or not appellant's application for certification of the corrected and completed transcript was for relief under section 473 of the Code of Civil Procedure. The application, however, was made and granted over the objections of respondents, in the exercise by the court of a sound discretion. (Banta v. Siller, 121 Cal. 414 [53 Pac. 935].) It does not appear there was an abuse of discretion in so doing. (Stonesifer v. Kilburn, 94 Cal. 33 [29 Pac. 332].) Courts give very liberal interpretation to the provisions of section 473 of the Code of Civil Procedure. . (Estate of Simmons, 168 Cal. 392 [143 Pac. 697]; Anstead v. Pacific Gas & Elec. Co., 201 Cal. 198 [256 Pac. 209]; Gross v. Hazeltine, 206 Cal. 130 [273 Pac. 550].)\\nAs to laches, it appears to this court that appellants moved with reasonable celerity and due diligence to .obtain the said transcript. The case of In re Barney, 191 Cal. 18 [214 Pac. 853], does not conflict with the foregoing views, when the fact is kept in mind, that the only default in obtaining proper certification in the case on appeal was chargeable not to appellants but to an erroneous ruling of the trial court.\\n\\\" Another objection of respondents to a hearing on the merits rests upon the claim that appellants have failed to print in their brief portions of the record necessary to be considered by the appellate court on appeal, or sufficient to justify a reversal, citing Jeffords v. Young, 197 Cal. 224 [239 Pac. 1054], Filmer v. Davis, 91 Cal. App. 195 [266 Pac. 985], Keele v. Clouser, 92 Cal. App. 526 [268 Pac. 682], and Code of Civil Procedure, section 953c, requiring the printing by appellants in their brief of such portions of the record as they desire to call to the attention of the court.\\nThere is no quarrel with the foregoing authorities, which correctly state the rule; but they are hardly applicable in this case.\\nAppellants, in their brief, did quote verbatim from the transcript the order of the lower court, that of February 8, 1929, from which they appeal, i. e., denying the change of place of trial. They also set out parts of the affidavits used in evidence by the respondent to retain the place of trial in Shasta County. They stated in narrative form the substance of other affidavits now incorporated in the record, and the narrative is not contradicted nor disputed by respondents as to any matter of form or substance. The dis pute is only as to the legal effect of the record facts herein. No reporter was present; the showing before the court was entirely documentary, and the statement, certified as true and correct by the judge, became a portion of the judgment-roll, and may be considered on appeal in lieu of the bill of exceptions. (Sec. 953a, Code Civ. Proc.)\\nRespondents in their reply brief set out in the appendix their counter motion to retain the cause in Shasta County, together with the affidavits in support of their motion. Under these conditions, we have felt it our duty to consider this appeal upon the merits.\\nThe Merits.\\nThe defendant Berry's motion for a change of venue on the ground that he and his co-defendants are all residents of the city and county of San Francisco and are not now and never have been residents of Shasta County, where the action was commenced, should have been granted. The respondents, in response to the application and demand of the defendant Berry for a change of the place of trial, contend that since the commencement of the action Berry had been adjudicated a bankrupt in the United States Distriet Court, Northern District of California, that said Berry had made application for his final discharge, and no longer has any personal interest in the outcome of the action, and that said motion and demand for a change were not in good faith, but merely to bolster up the demand and motions of the other defendants, Lesser and Ballon, for a change of the place of trial.\\nRespondents do not find fault with the formal showing on behalf of Berry. The latter's notice of motion, demand for change, affidavit of merits, and demurrer to the complaint were in form and substance in acordance with the requirements of the law. It apears that the defendant Berry was a principal in the action on the bond. He was a proper and necessary party under section 383 of the Code of Civil Procedure. When liability is joint all persons upon whom it rests must be united as defendants in an action upon the obligation. This rule is general and applies to undertakings and promises of all descriptions. (Sec. 382, Code Civ. Proc.; 20 Cal. Jur. 502, 503; Farmers' Exchange Bank v. Morse, 129 Cal. 239 [61 Pac. 1088].) The action did not abate by reason of the insolvency or bankruptcy of the defendant Berry. (Code Civ. Proc., sec. 385.) The bankruptcy of a party against whom a judgment has been rendered before the taking of the appeal will not prevent the prosecution of the appeal in his name. (O'Neil v. Dougherty, 46 Cal. 575.)\\nThe respondents in their complaint allege that Berry was insolvent. He was not served with summons until December 7, 1928, while motions upon the question of change of place of trial of his co-defendants, sureties on the bond in question, were pending. On that date, however, he was served with summons, and made his appearance December 17, 1928, by filing his demurrer, and making his demand, etc. His co-defendants, Lesser and Bailen, whose motions for a change of place of trial to the city and county of San Francisco were pending, in addition to their demurrers, had filed answers and amended answers. In opposition to their demands, counter motions of the respondents were presented to retain the cause in Shasta County, based upon the convenience of witnesses.\\nAs a proper party to the action, Berry is entitled to be heard in whatever defense he may have to defeat the judgment against his sureties, as well as against himself. This is true, notwithstanding his adjudication of bankruptcy. Plaintiffs have not moved to dismiss the action against Berry, have made no request that the trustee in bankruptcy, if any, be substituted in Berry's place as defendant. No order was ever made in the trial court staying proceedings in this action, no supersedeas nor stay order ever issued from the United States District Court, so far as the record of this case shows. The statements in the affidavits on file herein concerning his bankruptcy were matters of hearsay and immaterial, as no change in his status as defendant has occurred in this case. He was neither an improper nor unnecessary party, nor merely a nominal party to the action.\\nThe liability of his co-defendants is primarily -dependent upon Berry's liability. \\\"The filing of a petition in bankruptcy does not prevent the commencement of an action against- the bankrupt.\\\" (7 Cor. Jur. 349, and citations, note 74.). \\\"The proper practice appears to be that the application- for a stay should be made in the court in which the action is pending, and it should make the necessary order staying the proceedings.\\\" (Id., on pages 349, 350, note 85.) \\\"The statement of defendant's counsel at the trial that the defendant was in bankruptcy cannot operate as a stay of proceedings.\\\" (McGowan v. Bowman, 79 Vt. 295 [64 Atl. 1121].)\\nEven on this appeal respondents ask affirmation of the order denying Berry's application for a change of place of trial, and they continue to ask personal judgment against him, as well as his co-defendants. Under these circumstances, it appears he is not merely a nominal party. The case of Donohoe v. Wooster, 163 Cal. 114 [124 Pac. 730], cited by respondents, is not in point. The facts in that case are not at all analogous in any sense to the facts of the case at bar.\\n\\\"The language of section 395 requires the action to be tried in the county in which the defendants, or some of them, reside, not where they do not reside. The consent of certain defendants not residing in the county where the action is brought could not take away from the defendants who do not reside there the right to have the cause transferred to the county of their residence. To hold otherwise would be a violation of the provisions of section 395.\\n\\\"The right of a defendant to have an action brought against him tried in the county in which he has residence is an ancient and valuable right, which has always been safeguarded by statute and is supported by a long line of judicial decisions. The right of a plaintiff to have an action tried in another county than that in which the defendant has his residence is exceptional, and, if the plaintiff would claim such right he must bring himself within the terms of the exception. (Brady v. Times-Mirror Co., 106 Cal. 56 [39 Pac. 209].)\\\" (Brown v. Happy Valley Fruit Growers, 206 Cal. 515 [274 Pac. 977, 979].)\\nThe motions for change of place of trial of all three defendants were heard at the same time, and were denied with the one order herein appealed from; and in the same order were included the rulings of the court with reference to plaintiffs' motion to retain the cause in Shasta County on the ground of convenience of witnesses, and the orders striking out certain portions of the answers filed by the two answering defendants, namely, Lesser and Bailen. As Berry's motion was for the benefit of the other defendants as well as himself, and it must be granted, it will be unnecessary to follow counsel further in their argument as to the rulings of the trial court with reference to the motions of Lesser and Bailen, and the counter motions of respondents on the ground of the convenience of witnesses. Under the authorities cited, these last matters may be considered in the proper county, i. e., the city and county of San Francisco, afer the transfer.\\nThe appellants contend that the answers of Lesser and Bailen were filed merely on account of the then prevailing rule of the Judicial Council requiring the filing of answers at the same time demurrers were interposed to complaints in trial courts, and, that, therefore, the filing of answers under such circumstances should not open the door to plaintiffs to make a counter showing on the ground of convenience of witnesses. This contention may or may not have merit. It is unnecessary now to consider it.\\nThe charge of bad faith against Berry is overborne by his affidavit of merits. That affidavit stands unchallenged and must be accepted as true.\\nThe said order denying the change of place of trial from Shasta County to the city and county of San Francisco is reversed.\"}"

cal/2174457.json

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+"{\"id\": \"2174457\", \"name\": \"JOE E. LONG, Plaintiff and Appellant, v. MISHICOT MODERN DAIRY, INC., Defendant and Respondent\", \"name_abbreviation\": \"Long v. Mishicot Modern Dairy, Inc.\", \"decision_date\": \"1967-07-07\", \"docket_number\": \"Civ. No. 8329\", \"first_page\": \"425\", \"last_page\": \"432\", \"citations\": \"252 Cal. App. 2d 425\", \"volume\": \"252\", \"reporter\": \"California Appellate Reports, Second Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T01:09:25.070352+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOE E. LONG, Plaintiff and Appellant, v. MISHICOT MODERN DAIRY, INC., Defendant and Respondent.\", \"head_matter\": \"[Civ. No. 8329.\\nFourth Dist., Div. Two.\\nJuly 7, 1967.]\\nJOE E. LONG, Plaintiff and Appellant, v. MISHICOT MODERN DAIRY, INC., Defendant and Respondent.\\nWilliam L. Anderson for Plaintiff and Appellant.\\nArnold G. Hewett for Defendant and Respondent.\", \"word_count\": \"2668\", \"char_count\": \"16229\", \"text\": \"TAMURA, J.\\nPlaintiff appeals from an order granting a motion to quash service of summons on defendant, a Wisconsin corporation. Defendant was served in the manner provided by section 411, subdivision 2, of the Code of Civil Procedure by service upon the Secretary of State of the State of California who, in turn, sent defendant a copy of the summons and complaint by certified mail to its address in Wisconsin.\\nSection 411, subdivision 2, of the Code of Civil Procedure provides that if the suit is against a foreign corporation ' doing business in this state,\\\" summons may be served in the manner provided by sections 6500-6504 of the Corporations Code. The sole issue on this appeal is whether defendant was \\\"doing business\\\" in this state within the meaning of section 411, subdivision 2.\\nPlaintiff filed an action against defendant in the Superior Court in Orange County for breach of contract for the sale of land alleging that defendant, through its duly authorized agent, Hugo C. Drumm, entered into a written agreement to sell plaintiff some 13 acres of land owned by defendant and situated in Orange County, that an escrow was opened in Orange County to consummate the transaction, that pursuant to the terms of the agreement plaintiff paid defendant, through escrow, $10,000 which was to be applied to the purchase price, and that defendant breached the agreement. The complaint sought damages in the sum of $80,000 and, by a separate cause of action, restitution of the $10,000.\\nDefendant appeared specially and moved to quash service of summons and complaint. In support of its motion, it submitted a declaration signed by Hugo C. Drumm in which he stated that he was not and never had been an officer or shareholder of defendant, its general manager in California, or its agent in California for service of process. He declared that the primary business of defendant is the manufacture and sale of cheese in Wisconsin and that its only activity in California was the ownership of the land in question and the entry into the escrow agreement for its sale to plaintiff.\\nIn opposition, plaintiff filed his declaration setting forth the following facts: Plaintiff is a resident of the State of California. Defendant, a Wisconsin corporation, listed the subject property for sale with a firm of California realtors. Thereafter plaintiff and defendant executed an agreement and escrow instructions for the sale of the property to plaintiff, defendant at all times being represented by and acting through its agent, Hugo C. Drumm. Under the agreement defendant was to procure a survey and title policy and assist in obtaining a rezoning of the property to make it available for subdivision purposes. In order to eliminate a title problem pertaining to an access easement, defendant, during the pendency of the escrow, commenced a quiet title action in the Superior Court of Orange County. In addition, also pending the escrow, defendant petitioned the Planning Commission of the City of Orange for a rezoning of the subject property and made appearances before that body as well as before the Orange County Planning Commission and the Orange County Board of Supervisors in support of the requested rezoning and in connection with a proposed street alignment affecting the property. Defendant breached the agreement. A school district thereafter filed an action in eminent domain to acquire the property for a school site and the defendant subsequently deeded it to the district. The agreement between plaintiff and defendant was made in and was to be performed in Orange County, California. All of the original documents pertaining to the sale including escrow instructions, title reports, surveys, and other pertinent records are located in the County of Orange. Defendant's agent, Hugo C. Drumm, is a resident of Orange County, California.\\nSince the material facts are not in conflict, the question whether the defendant is subject to jurisdiction in per sonam presents a question of law. The trial court's determination of that issue is, therefore, not binding on this court. (Cosper v. Smith & Wesson Arms Co., 53 Cal.2d 77 [346 P.2d 409], cert. den. 362 U.S. 927 [4 L.Ed.2d 746, 80 S.Ct. 755]; H. Liebes & Co. v. Erica Shoes, Inc., 237 Cal.App.2d 25, 30 [46 Cal.Rptr. 470].)\\nService of process may be made on a foreign corporation in the manner provided by section 411, subdivision 2, of the Code of Civil Procedure if the corporation is \\\"doing business\\\" in the state. The reach of the \\\"doing business\\\" requirement of section 411, subdivision 2, of the Code of Civil Procedure has been equated with the limits of the due process requirement as defined in International Shoe Co. v. Washington (1945) 326 U.S. 310 [90 L.Ed. 95, 66 S.Ct. 154, 161 A.L.R. 1057]; that is, the foreign corporation must have \\\". . . certain minimum contacts with [the forum] such that maintenance of the suit does not offend ' traditional notions of fair play and substantial justice'.\\\" (Empire Steel Corp. v. Superior Court, 56 Cal.2d 823, 829 [17 Cal.Rptr. 150, 366 P.2d 502]; Fisher Governor Co. v. Superior Court, 53 Cal.2d 222, 224 [1 Cal.Rptr. 1, 347 P.2d 1]; Cosper v. Smith & Wesson Arms Co., supra, 53 Cal.2d 77, 82, cert. den. 362 U.S. 927 [4 L.Ed.2d 746, 80 S.Ct. 755]; Henry R. Jahn & Son v. Superior Court. 49 Cal.2d 855, 858 [323 P.2d 437].) \\\"Whatever limits [the \\\"doing business\\\" requirement] imposes is equivalent to that of the due process clause.\\\" (Fisher Governor Co. v. Superior Court, supra ; Henry R. Jahn v. Superior Court, supra ; Cosper v. Smith & Wesson Arms Co., supra.)\\nIn determining what \\\"minimum contacts\\\" are sufficient, a distinction must be drawn between a cause of action arising out of or related to activity within the state and one not so related. In the latter instance, more extensive contacts are required. (Fisher Governor Co. v. Superior Court, supra, 53 Cal.2d 222, 225; Henry R. Jahn & Son v. Superior Court, supra, 49 Cal.2d 855, 860.)\\nThus, although mere ownership of land may not be sufficient to subject a nonresident to personal jurisdiction in an unrelated cause of action, it may be sufficient if the cause of action is related to such ownership. (Goodrich, Conflict of Laws, (4th ed.), \\u00a7 73, p. 118.)\\nWhere the cause of action arises out of economic activity within the forum state, the contacts need not consist of repeated or continuous business transactions. (McGee v. Inter national Life Ins. Co., 355 U.S. 220 [2 L.Ed.2d 223, 78 S.Ct. 199]; Goodrich, Conflict of Laws, supra, (4th ed.) \\u00a7 76, p. 135.) An isolated transaction may be sufficient. In McGee the issuance of a single policy of insurance by mail to a resident of California was held sufficient to confer in personam jurisdiction on a cause of action arising out of the contract of insurance, the court stating, \\\". . . It is sufficient for purposes of due process that the suit was based on a contract which had substantial contacts with that State. .\\\" In James R. Twiss, Ltd. v. Superior Court, 215 Cal.App.2d 247 [30 Cal.Rptr. 98], the only contact of the foreign corporation with California was the single entry of its vessel into a California port for emergency repairs. In plaintiff's personal injury action for injuries allegedly sustained in the repair of the vessel, the court held that the foreign corporation was amenable to substituted service.\\nIn Henry R. Jahn & Son v. Superior Court, supra, 49 Cal.2d 855, 860, the court noted that \\\". . . [T]here is jurisdiction when the cause of action arose out of the breach of a contract made and to be performed in the state. . . citing Compania De Astral, S.A. v. Boston Metals Co., 205 Md. 237 [107 A.2d 357; 108 A.2d 372; 49 A.L.R.2d 646]; cert. den., 348 U.S. 943 [99 L.Ed. 738, 75 S.Ct. 365]. Compania De Astral, supra, held that as applied to the facts before it, a Maryland statute permitting substituted service in an action by a resident of the state or by one having his usual place of business in the state against a foreign corporation on a cause of action arising out of a contract made in Maryland met the due process standards enunciated in International Shoe Co. v. Washington, supra, 326 U.S. 310 [90 L.Ed. 95, 66 S.Ct. 154, 161 A.L.R. 1057]. The action arose out of a contract, made and to be performed in Maryland, for the sale of vessels located in that state. Although there was but a single transaction within the state, the fact that the foreign corporation engaged in various preliminary activities in the state in negotiating the contract, including inspection of the vessels, the fact that the escrow was established in Maryland, and the fact that the contract provided that it should be interpreted in accordance with Maryland law were held to constitute sufficient contacts with the state and reliance upon its laws and the protection which they afforded to meet the jurisdictional test of International Shoe Co. v. Washington, supra.\\nStatutes similar to the Maryland statute have been enacted in other states. (Goodrich, Conflict of Laws (4th ed.), supra, \\u00a7 73, p. 129. fn. 209.) In State v. Register (Fla.) 67 So.2d 619, the court held that a Florida statute which provided for substituted service on nonresident persons or corporations who ' '. . . operate, conduct, engage in, or carry on a business or business venture. . . \\\" in the state permitted substituted service on nonresident owners of an orange grove situated in Florida in an action brought by a Florida real estate broker to recover commissions under a listing agreement for the sale of the property. The court held that the nonresidents engaged in a \\\"business venture\\\" within the meaning of the statute when they entered into a contract with the Florida broker to effect a sale of Florida realty.\\nIn Fisher Governor Co. v. Superior Court, supra, 53 Cal.2d 222, 225-226, the court through Justice (now Chief Justice) Traynor prescribed the following guide lines for determining when contacts are sufficient to make it reasonable to subject the foreign corporation to personal jurisdiction: ' The interest of the state in providing a forum for its residents [citations] or in regulating the business involved [citations] ; the relative availability of evidence and the burden of defense and prosecution in one place rather than another [citations] ; the ease of access to an alternative forum [citations] ; the avoidance of multiplicity of suits and conflicting adjudications [citations] ; and the extent to which the cause of action arose out of defendant's local activities [citations] are all relevant to this inquiry.\\\" For the relevancy of such \\\"litigational considerations,\\\" see also Von Mehren and Trautman, Jurisdiction to Adjudicate: A Suggested Analysis (1966) 79 Harv.L.Rev. 1121, 1173.\\nThose considerations justify holding defendant amenable to personal jurisdiction in the instant case. Plaintiff is a resident of this state; the action arises out of a contract, made and to be performed in this state, for the sale of land located in this state; defendant has availed itself of the privilege of engaging in economic activity in this state and has enjoyed the benefits and invoked the protection of its laws, administrative agencies and courts; California law will determine the rights and obligations of the parties under the contract sued upon (Losson v. Blodgett, 1 Cal.App.2d 13, 18 [36 P.2d 147] ; Civ. Code, \\u00a7 755; Witkin, Summary of Cal. Law (1960) \\u00a7 9, p. 869 ; Goodrich, Conflict of Laws (4th ed.), supra, \\u00a7 149, p. 296.); and the documentary evidence and witnesses are in this state. In these circumstances, it is reasonable that the lawsuit be adjudicated in this state. \\\"Fair play and substan tial justice\\\" are not offended by requiring defendant to respond to the instant action.\\nDefendant relies upon Davies v. Mt. Gaines Min. & Mill. Co., 104 Cal.App. 730 [286 P. 740], and Conference Free Baptists v. Berkey, 156 Cal. 466 [105 P. 411], They are not controlling. In Davies, supra, plaintiff deeded certain mining property to defendant, a foreign corporation. Thereafter it brought an action to set aside the deed on the sole ground that the corporation had not qualified to do business in California by filing a copy of its articles of incorporation and other documents with the Secretary of State. The court held that the mere ownership of property did not require compliance with the statute. Conference Free Baptists, supra, involved an interpretation of the phrase \\\"to transact business\\\" as used in section 15 of article XII of the California Constitution providing that foreign corporations shall not be allowed \\\"to transact business\\\" within the state on more favorable conditions than the law prescribes for domestic corporations. The court held that an isolated sale of a parcel of land by a religious corporation was unrelated to its \\\"ordinary business\\\" and did not constitute \\\"transacting business\\\" within the meaning of the constitutional provision. Those cases were not concerned with the exercise of the power to subject foreign corporations to in personam jurisdiction on a cause of action arising out of local activity. Moreover, they are of a vintage when jurisdiction was still based upon concepts of implied consent and physical presence, fictions which have since been discredited by International Shoe Co. v. Washington, supra, 326 U.S. 310 [90 L.Ed. 95, 66 S.Ct. 154, 161 A.L.R. 1057], Goodrich, Conflict of Laws (4th ed.), supra, \\u00a7 73, p. 115.\\nDefendant also seeks to distinguish McGee v. International Life Ins. Co., supra, 355 U.S. 220 [2 L.Ed.2d 223, 78 S.Ct. 199], and James R. Twiss, Ltd. v. Superior Court, supra, 215 Cal.App.2d 247, on the ground that state activity in those eases was in furtherance of the principal business of the corporation whereas in the instant case defendant's California activity was unrelated to its usual business. We perceive no rational basis for holding that the assertion of personal jurisdiction in a cause of action arising out of an isolated transaction offends \\\"traditional notions of fair play and substantial justice\\\" simply because the cause of action arises out of a contract for the sale of land rather than for the sale of defendant's product. The distinction suggested by defendant is not of controlling significance under the rationale of the minimum contacts\\\" test enunciated in International Shoe Co. v. Washington, supra, 326 U.S. 310 [90 L.Ed. 95, 66 S.Ct. 154, 159-160, 161 A.L.R. 1057], where the court stated: \\\"It is evident that the criteria by which we mark the boundary line between, those activities which justify the subjection of a corporation to suit, and those which do not, cannot be simply mechanical or quantitative. The test is not merely, as has sometimes been suggested, whether the activity, which the corporation has seen fit to procure through its agents in another state, is a little more or a little less. [Citations] Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations. [Citations.]\\n\\\"But to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection qf the laws of that state. The exercise of that privilege may give rise to obligations; and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue. [ Citations. ] \\\"\\nThe order granting the motion to quash is reversed.\\nKerrigan, Acting P. J., and Thompson (Raymond), J. pro tern., concurred.\\nAssigned by the Chairman of the Judicial Council.\"}"

cal/2194652.json

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+"{\"id\": \"2194652\", \"name\": \"THE PEOPLE, Respondent, v. JOHN LE ROY WALES, Appellant\", \"name_abbreviation\": \"People v. Wales\", \"decision_date\": \"1955-11-09\", \"docket_number\": \"Crim. No. 5387\", \"first_page\": \"846\", \"last_page\": \"856\", \"citations\": \"136 Cal. App. 2d 846\", \"volume\": \"136\", \"reporter\": \"California Appellate Reports, Second Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T02:00:45.235177+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PEOPLE, Respondent, v. JOHN LE ROY WALES, Appellant.\", \"head_matter\": \"[Crim. No. 5387.\\nSecond Dist., Div. Three.\\nNov. 9, 1955.]\\nTHE PEOPLE, Respondent, v. JOHN LE ROY WALES, Appellant.\\nC. Ransom Samuelson and Clarence Hengel for Appellant.\\nEdmund G. Brown, Attorney General, Clarence A. Linn, Chief Assistant Attorney General, and Victor Griffith, Deputy Attorney General, for Respondent.\", \"word_count\": \"4014\", \"char_count\": \"23056\", \"text\": \"WOOD (Parker), J.\\nDefendant was charged with the crime of abortion. In a trial by jury he was found guilty. Probation was granted on condition that he serve 90 days in the county jail, and proceedings were suspended. Defendant appeals from the judgment (order granting probation) and from the order denying his motion for a new trial.\\nAppellant contends that the evidence is insufficient to sustain the conviction; and that the court erred prejudicially in refusing to give certain instructions.\\nMrs. Malone (upon whom the abortion was allegedly performed) testified in part as follows: She had a physical examination by Dr. Dach who stated that he believed she was pregnant. He told her to come back the following Saturday for a more thorough examination. She did not go back for the examination. About June 10 she talked to a man friend, by the name of Lionel, about an abortion, and he gave her the name of defendant. On June 16 she telephoned defendant's office and made an appointment to go there on June 17. At the time appointed she went to defendant's office and asked defendant to examine her to determine whether she was pregnant. She gave him information about her physical condition, age and family history. She was placed in a chair which was equipped with stirrups. The chair was then let down like a table, and she was in a \\\"lying position.\\\" Defendant made a manual examination, using a vaginal speculum, which took about 10 minutes. He stated that it looked like she was pregnant. She told him that she could not have the baby because she was not married, and she asked him to help her. He asked her if she \\\"would keep quiet,\\\" and she said \\\"Tes.\\\" He then made an appointment for her to return at 11 a. m. on Saturday (June 19), and told her that she would be in his office about an hour and a half. She asked how much it would be, and he said $200\\u2014and to bring it in cash. He told her to bring a sanitary belt. On Saturday, about 11 a. m., her friend Dorothy took her in an automobile to defendant's office, and Dorothy said that she would return at 12:15 o'clock. She (witness) entered the office. Defendant was in his private office with the door open, and no one else was present. He asked her for the money. She told him that she was able to get only $175, and she handed the money to him. He returned $5.00 to her and said that she might need it. He did not give her a receipt for the money. He told her to go into the dressing room, remove her clothes except certain things, put on the sanitary belt and a dressing gown and then come into the examining room. After she complied with those directions, he placed her in the chair in approximately the same position she was in when he examined her, placed her legs in the stirrups, and put a sheet over her. Then he gave her a hypodermic injection in the arm. He said that the injection was a drug which was used for women who were beginning labor, to make them relax. He pulled a small table over by her. Defendant sat between her feet, at the end of the table, and, with his hands and instruments, contacted her uterus and vaginal tract. She felt a scraping sensation in her pelvic tract. Defendant said he \\\"was scraping it out.\\\" She told him it hurt, and she cried a little. He worked on her in this manner about 30 minutes. The hypodermic injection had a relaxing effect but she was fully conscious. After defendant completed what he was doing, he carried out an oblong pan which contained \\\"blood clots, or whatever it was.\\\" He helped her into the dressing room, and told her to lie down. He gave her an injection in the hip, and told her it was penicillin which would stop any infection. She lay there about 25 minutes, and then she dressed. Defendant told her to take aspirin if she had pain like menstrual cramps. He said there would be \\\"spotting\\\" for a few days then she would be over her pregnancy. He told her to come back if she wanted further examination to see if everything was all right. Dorothy came after her and took her home. On Sunday she was in considerable pain. On Monday the pain was worse and by Wednesday night (June 23) it became unbearable. She called Dr. Brown's office but he was not in, and Dr. Posson came to see her. She told him that she had an abortion, and he examined her. He told her that she should go to the hospital for further examination, and for her to see Dr. Brown. She saw Dr. Brown the next day, and he examined her and gave her medical treatment.\\nDr. Posson, called as a witness by the People, testified that he is an osteopathic physician. He examined Mrs. Malone on June 23. She said that she had something done about a possible pregnancy. From her history and the (his) findings, he thought she had been pregnant or was pregnant. He formed an opinion, based upon her history, that she had been aborted or was miscarrying. Her temperature was a little below normal and he did not think that she had an infection. She was having cramps, bleeding and clots.\\nDr. Brown, called as a witness by the People, testified that he is an osteopathic physician. On June 24 he gave Mrs. Malone an examination. She told him that she had been pregnant and had been aborted. Her uterus was slightly enlarged, boggy and soft which, with her history, indicated that she had been recently pregnant. There was slight bleeding from the cervix but there was no infection there. He came to the conclusion, based upon his objective physical findings, that she had aborted. He treated her until July 22. On cross-examination he testified that Mrs. Malone told him that she was aborted in a doctor's office, and that the doctor had used some instrument on her. He (witness) examined her cervix for marks or scars, and found none. If an instrument has been used to procure an abortion, generally there are marks on the cervix five days thereafter. Excluding the history which Mrs. Malone gave him, he would assume that she had been aborted but he would not definitely know, and he would not know whether the abortion was spontaneous or induced.\\nDr. Dach, called as a witness by the People, testified that he specializes in obstetrics and gynecology. He examined Mrs. Malone on May 19, 1954. He made an examination of the uterus and cervix of her vaginal tract by using a speculum. He also made a digital and bimanual examination. After he completed the examination, he was of the opinion that she was pregnant\\u2014about seven weeks pregnant.\\nDorothy, called as a witness by the People, testified that Mrs. Malone told her that she was pregnant and had an appointment with defendant on Saturday (June 19) for the purpose of having an abortion performed. On June 19 she took Mrs. Malone in an automobile to the building where defendant's office was located. About 12:10 p. m., she (witness) went to defendant's office and saw defendant and Mrs. Malone in the \\\"inner\\\" office.\\nOfficer Thiele testified that he and Officer Pinch went to defendant's office on June 29. They looked through the appointment book, went through all the files and made a search of everything \\\"in the way of a record\\\" but could not find the name of Mrs. Malone. Finch told defendant that they (officers) were there regarding a criminal abortion\\u2014that defendant was the suspect and Mrs. Malone was the victim. Defendant stated that he did not know anyone by that name and that he had not performed any abortions. After further conversation with defendant, defendant said, \\\"Couldn't I give the girl back her money and take care of her medical expenses?\\\"\\u2014that he would rather pay her what the officers said she had lost than to take the publicity that would follow his arrest. They took defendant to the police station where they had a further conversation with him. Defendant asked them if they could not \\\"fix it up with the district attorney so that he could pay a fine,\\\" and would not be prosecuted. He also said, \\\"Well, couldn't I go through you and you pay the girl off so that I won't be arrested?\\\" Officer Pinch told the defendant that all they wanted was the truth. Defendant then replied, \\\"If I do tell the truth, what can you do for me, what can you guarantee me?\\\"\\nOfficer Pinch testified in substance the same as Officer Thiele had testified.\\nDefendant testified that he is 74 years of age, and has been a physician and surgeon since 1914. He gave Mrs. Malone a bimanual physical examination on June 17. She told him that she thought she was pregnant, and he replied that there was a little swelling on the right side of the uterus but that there was no evidence of pregnancy. She asked him how much he would charge to take care of her during her confinement, and he stated that most obstetricians were charging $250, but that if she would pay in advance he would take care of her for $200. He told her to wait a week and come back for a rabbit test and they would know for sure whether she was pregnant. She said that she would talk to her husband and would probably be back. The following Saturday (June 19) she returned and said that she had \\\"quite a little pain.\\\" He examined her, and the cervix and the vault of the vagina were inflamed and red, and there was a little mucus. He decided that she had some infection. He attached a piece of cotton to an applicator and, using an antiseptic, he swabbed the cervix and the vault of the vagina. Then he gave her terramycin to stop the infection. He had her lie on the bed in the dressing room, and gave her penicillin. When she left, he told her to come back in two or three days for a rabbit test, and that if she did not feel better to come back the next day. She did not come back. He did not abort her. She gave him $175 on Saturday, and he returned $5.00 to her. He stated that they would settle the balance of $30 when he completed his diagnosis. He did not give her a receipt for the money because he did not expect to need all of it for he was not sure that she was pregnant. His secretary keeps all his records, but she was not at the office Saturday. When she is absent, he makes notes and she later makes the entries in the books. He did not make a note of Mrs. Malone's visit because he wanted a rabbit test so he would know what his diagnosis might be. When he talked with the officers at the police station he did not know Mrs. Malone by name, but he remembered her when he saw her at the preliminary hearing.\\nDr. Gates, called as a witness by defendant, testified that he specializes in gynecology and, until two years ago, he also specialized in obstetrics. Without a history of an abortion, a slightly boggy, enlarged uterus with bleeding would be no positive evidence that an abortion had been performed. Five days after an abortion has been performed, he would expect to find abrasions or scars in the mouth of the uterus\\u2014 the cervix has to be grasped (in performing an abortion) with a tenaculum, an instrument with sharp claws that will leave a mark.\\n\\\" An essential element of the crime [of abortion] is a criminal intent on the part of the accused to procure an abortion, and such intent must be specific. The requisite guilty intent cannot exist unless the defendant has actual knowledge or actually believes that the woman is pregnant, since the intent must be to procure a miscarriage. However, it is the belief and purpose of the defendant which is involved, not whether pregnancy in fact exists.\\\" (1 Cal.Jur.2d 159, \\u00a7 10.) Whether defendant believed that Mrs. Malone was pregnant would, of course, have an important bearing on the question of his intent. Section 21 of the Penal Code provides that \\\"The intent or intention is manifested by the circumstances connected with the offense. . . .\\\" Some of the circumstances herein, relating to the question of intent on the part of appellant to procure an abortion, were: Mrs. Malone was about seven weeks pregnant, according to testimony of Dr. Dach; appellant told her (according to her testimony) that \\\"it looked like\\\" she was pregnant, and he asked her if she would keep quiet if he helped her; he told her (according to her testimony) that he was scraping \\\"it out,\\\" and that she would be \\\"spotting\\\" for a few days and then she would be over her pregnancy; payment of $170 cash to defendant for which he gave no receipt; absence of her name upon his records; she had been aborted or was miscarrying, according to testimony of Dr. Posson; she had been pregnant and had been aborted, according to testimony of Dr. Brown; defendant told the officers that he did not know anyone by the name \\\"Malone,\\\" and he asked them if they could'\\\"fix it up\\\" with the district attorney, and what they could guarantee him if he told the truth. Appellant denied that he performed an abortion. He also testified to the effect that when he examined Mrs. Malone there was no evidence of pregnancy; he treated her for an infection; the money was to pay for taking care of her during her confinement in the event she was pregnant; he did not give her a receipt for the money because he did not think he would need all of it. There was also testimony of Dr. Gates (on behalf of appellant) that, in performing an abortion, the cervix has to be grasped with the sharp claws of an instrument which leave marks; and that he would expect to see the marks five days after the abortion had been performed. Also there was testimony by Dr. Brown (witness called by the People) to the effect that if an instrument had been used, generally there would be marks on the cervix five days thereafter ; and he examined her cervix for marks and found none. Viewing the evidence in the light most favorably to the People, it was legally sufficient to support the conviction.\\nAppellant argues further that the corroborative evidence herein was as compatible with innocence as it was with guilt. Whether such evidence was as compatible with innocence as it was with guilt was a question for the trier of fact. (See People v. Allen, 104 Cal.App.2d 402, 412 [231 P.2d 896]; People v. Estes, 99 Cal.App.2d 745, 747 [222 P.2d 454].) A defendant may not be convicted of the crime of abortion upon the testimony of the woman upon whom the offense was committed unless she is corroborated by other evidence. (Pen. Code, \\u00a7 1108.) [5] It could be inferred from the evidence herein, exclusive of the testimony of Mrs. Malone, that appellant believed that Mrs. Malone was pregnant, and that he intended to procure an abortion. It therefore appears that such evidence was legally sufficient to corroborate her testimony. Appellant relies upon People v. Murphy, 60 Cal.App.2d 762 [141 P.2d 755], wherein it was held, as a matter of law, that the corroborative evidence was insufficient to establish that defendant believed that the prosecutrix was pregnant; and that the corroborative circumstances were as compatible with innocence as they were with guilt. In the present case it cannot be said, as a matter of law, that the corroborative evidence was insufficient to establish that defendant believed that Mrs. Malone was pregnant.\\nAppellant contends further that the court erred prejudicially in refusing to give certain instructions (Nos. 19 and 27), requested by appellant, to the effect: (1) When the evidence is susceptible of two reasonable interpretations\\u2014one pointing to guilt and one to innocence\\u2014it is the duty of the jury to adopt the interpretation pointing to innocence; and (2) a verdict of guilty may not be based upon circumstantial evidence alone unless the proved circumstances are consistent with the hypothesis of guilt and are irreconcilable with any other rational conclusion. Appellant asserts that circumstantial evidence was substantially relied upon herein for proof of guilt; and that the requested instructions were necessary to enable the jury to properly consider the circumstantial evidence. The theory of the prosecution was that appellant believed that Mrs. Malone was pregnant, and that he intended, by the acts performed by him, to procure an abortion. The theory of the defense was that appellant did not believe that Mrs. Malone was pregnant, and that he treated her for an infection and he did not intend to procure an abortion. Such theories, of course, required a determination of appellant's belief and intent. It is clear that, in the matter of determining his belief and intent, the prosecution relied substantially upon circumstantial evidence.\\nIn People v. Yrigoyen, 45 Cal.2d 46 [286 P.2d 1], wherein defendant was charged with issuing a check with intent to defraud, the prosecution relied upon circumstantial evidence to show criminal knowledge and intent. In that case a judgment of conviction was reversed for failure to give an instruction embodying the principle \\\"that to justify a conviction on circumstantial evidence the facts and circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion.\\\" It was said therein (p. 52) : \\\"[W]e declared in People v. Bender, 27 Cal.2d 164, 174 et seq. [163 P.2d 8], that the court on its own motion must give an instruction embodying the principle that to justify a conviction on circumstantial evidence the facts and circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion.\\\" It was also said therein (p. 52): \\\"It is true that in the Bender case proof of guilt was entirely circumstantial, whereas in the present ease there was direct evidence that defendant issued the check without sufficient funds in or credit with the bank, and circumstantial evidence was relied upon to show his criminal knowledge and intent.\\\" (Italics added.)\\nIn People v. Bender, 27 Cal.2d 164 [163 P.2d 8], it was also said (p. 175) : \\\"It cannot be too strongly emphasized that such quoted statement [referring to statement to effect that circumstantial evidence must not only be consistent with theory of guilt but must be inconsistent with any other rational conclusion] enunciates a most important rule governing the use of circumstantial evidence. In unequivocal language -it should be declared to the jury in every criminal ease wherein circumstantial evidence is received.\\\"\\nIn People v. Candiotto, 128 Cal.App.2d 347, 355-356 [275 P.2d 500], it was held that such an instruction must be given when criminal knowledge is shown only by circumstantial evidence.\\nIn People v. Hatchett, 63 Cal.App.2d 144 [146 P.2d 469], it was said at page 155: \\\"Neither the statement in an instruction that the guilt of the defendant must be established beyond a reasonable doubt, nor the statement that as between two opposing reasonable inferences the one which is consistent with innocence must be preferred to the one tending to show guilt, satisfies the right of the defendant to have the jury instructed that where circumstantial evidence is relied upon by the People it must be irreconcilable with the theory of innocence in order to furnish a sound basis for conviction.\\\" (Italics added.)\\nIn the present case the trial judge erred prejudicially in refusing to give an instruction embodying the principle that to justify a conviction on circumstantial evidence the facts and circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion.\\nWith reference to appellant's requested instruction Number 19 (regarding two reasonable interpretations of the evidence), it appears that some words have been omitted from the first part of the second paragraph. It is there stated: \\\"If there is any reasonable hypothesis based upon the circumstances of the whole evidence in this case, then it is your duty to adopt such hypothesis. .\\\" Of course, the trial judge was not required to give that incomplete instruction. In People v. Bender, supra, 27 Cal.2d 164 [163 P.2d 8], it was said at page 177: \\\"They [jury] were told that 'If the evidence in this case is susceptible of two constructions or interpretations, each of which appears to you to be reasonable, and one of which points to the guilt of the defendant, and the other to his innocence, it is your duty, under the law, to adopt that interpretation which will admit of the defendant's innocence, and reject that which points to his guilt.' This instruction is eminently proper as far as it goes. To it should have been added a direct statement of the precise principle under discussion [the principle that where circumstantial evidence is relied upon for proof of guilt it must be irreconcilable with the theory of innocence].\\\" (Italics added.) As indi cated in the Bender case, supra, it would have been proper to give an instruction embodying the principle stated in the first paragraph of said instruction Number 19\\u2014regarding two reasonable interpretations of the evidence.\\nIn view of the above conclusion, it is not necessary to discuss appellant's other requested instructions (Nos. 20 and 21\\u2014pertaining to circumstantial evidence) which were refused.\\nThe judgment (order granting probation), and the order denying the motion for a new trial, are reversed.\\nShinn, P. J., and Ashburn, J. pro tern., concurred.\\nA petition for a rehearing was denied November 21, 1955, and respondent's petition for a hearing by the Supreme Court was denied December 8, 1955. Shenk, J., Edmonds, J., and Spence, J., were of the opinion that the petition should be granted.\\nNo. 19\\u2014\\\"Where the facts of the case, considering the evidence as a whole, are susceptible of two reasonable interpretations, one looking toward the guilt and the other toward the innocence of the defendant, it is your duty to give such facts and the evidence the interpretation which makes for the innocence of the defendant, rather than to adopt the one looking toward his guilt.\\n\\\"If there is any reasonable hypothesis based upon the consideration of the whole evidence in this ease, then it is your duty to adopt such hypothesis, and to find him not guilty; for it is your duty not to look for some theory upon which you can convict the defendant, but, on the contrary, it is your duty, and the law requires you, if you can consistently and reasonable do so, to reconcile any and all circumstances and the whole evidence of the case that have been shown with the innocence of the defendant, and if by doing so, the innocence of the defendant appears, or if a reasonable doubt of his guilt arises, the jury must acquit him.\\\"\\nNo. 27\\u2014\\\"I instruct you further that you are not permitted, on circumstantial evidence alone, to find the defendant guilty of the [any] crime charged against him unless the proved circumstances not only are consistent with the hypothesis that the defendant is guilty of the crime, but are irreconcilable with any other rational conclusion.\\\"\\nAssigned by Chairman of Judicial Council.\"}"

cal/2195910.json

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+"{\"id\": \"2195910\", \"name\": \"HAZEL COURDWAY, Respondent, v. PEOPLES MUTUAL LIFE INSURANCE COMPANY OF CALIFORNIA (a Corporation), Appellant\", \"name_abbreviation\": \"Courdway v. Peoples Mutual Life Insurance\", \"decision_date\": \"1931-11-24\", \"docket_number\": \"Civ. No. 6816\", \"first_page\": \"530\", \"last_page\": \"533\", \"citations\": \"118 Cal. App. 530\", \"volume\": \"118\", \"reporter\": \"California Appellate Reports\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T01:50:59.797343+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HAZEL COURDWAY, Respondent, v. PEOPLES MUTUAL LIFE INSURANCE COMPANY OF CALIFORNIA (a Corporation), Appellant.\", \"head_matter\": \"[Civ. No. 6816.\\nSecond Appellate District, Division One.\\nNovember 24, 1931.]\\nHAZEL COURDWAY, Respondent, v. PEOPLES MUTUAL LIFE INSURANCE COMPANY OF CALIFORNIA (a Corporation), Appellant.\\nJoe Crider, Jr., Clarence B. Runkle and Alfred B. Weiler for Appellant.\\nL. G. Shelton for Respondent.\", \"word_count\": \"1004\", \"char_count\": \"5826\", \"text\": \"YORK, J.\\nOn July 26, 1927, Dr. J. W. Courdway of Pomona, California, made application to C. C. Lilies, an agent of the defendant insurance company, for a policy of accident and health insurance, naming the plaintiff, Hazel Courdway, his wife, as beneficiary, and gave to the said agent his check dated August 1, 1927, for the sum of $36.50 in full payment of the initial quarterly premium on said policy. The agent thereupon delivered the application to the insurance company at its office in Los Angeles, paying to said company $9.13, which was the net amount of the initial payment due to appellant after the deduction of the agent's commission, and at the same time requested that the policy be mailed to him, the said agent, when executed. The policy was duly executed and countersigned by the appellant on July 28, 1927, the office record of the appellant showing that it was on that day mailed to the agent Likes. The insured was injured in an automobile accident on July 31, 1927, and as a result died from injuries therein sustained, on the morning of August 1, 1927. On that morning, shortly after the death of insured, a young man\\u2014one L. E. Coffman\\u2014called upon the plaintiff and delivered to her the insurance policy here involved, after demanding of her the payment of $61.03, which sum of money she paid to him. The said L. E. Coffman is apparently unknown to any of the interested parties, and how he came into possession of the policy of insurance remains a mystery, so far as the evidence discloses.\\nPlaintiff made proof of loss and application for indemnity under the policy, but the appellant company refused to honor her claim, and she brought this action to enforce the same.\\nIt was stipulated in the lower court, during course of trial, that the only issue was the question of delivery of the insurance policy. Appellant now claims that the plaintiff by paying Coffman, in order to secure possession of the policy, is guilty of fraud as against the insurance company; that the policy was never effective, because the initial premium was not paid, and that the policy was never delivered.\\nAppellant's first point, that of fraud on the part of plaintiff, is without merit. The evidence shows' that the plaintiff told Mr. Coffman, when he appeared with the insurance policy, that her husband was dead, but that he replied it made no difference, and that he would deliver the policy to her if she would pay him $61.03, the premium due thereon. The evidence further shows that she knew none of the details of her husband's transaction with the insurance company or the agent Likes.\\nAs to payment of the premium, the deceased gave the agent a post-dated check, but the agent, before the date when the check could be honored, paid to the appellant company the sum of $9.13, which was the net amount of the initial premium due upon the policy, after deduction of the agent's commission, so that, as between the appellant and the insured, the question of payment did not arise. The application for insurance, of which a photostatie copy was attached to the policy, contained the following statement: \\\"25. The initial or down payment on this policy has been paid in amount of $36.50 on the 26 day of July, 1927. ' ' The insurance policy, which was issued by appellant company on the twenty-eighth day of July; 1927, contained the following: \\\"This Policy is issued in consideration of the Application, copy of which is attached hereto and made a part hereof, payment of a policy fee of Ten and no/100 Dollars and payment of a premium of Twenty-six & 50/100 Dollars for a term of Three months beginning on the 28th day of 'July, 1927, and expiring on the 28th day of October, 1927, at 12 o'clock noon.\\\" \\\"An acknowledgment in a policy of the receipt of premium is conclusive evidence of its payment, so far as to make the policy binding, notwithstanding any stipulation therein that it shall not be binding until the premium is actually paid.\\\" (Sec. 2598, Civ. Code.) It would seem, therefore, that appellant, having received from the agent the entire sum it was entitled to before issuance of the policy, is not now in position to raise the question of nonpayment.\\nThe delivery of the policy was accomplished by the act of sending it to the agent for delivery to the assured. (Harrigan v. Home Life Ins. Co., 128 Cal. 531, pp. 543 to 546 [58 Pac. 180, 61 Pac. 99].) The delivery by the unauthorized person, Coffman, to Mrs. Courdway, really has no relation to this controversy. Upon the authority of Marderosian v. National Casualty Co., 93 Cal. App. 295, 303 [273 Pac. 1093, 1096], we hold that the policy of insurance was delivered and became effective upon the date of the application. The cited case holds: \\\"Where a valid parol contract of insurance has been entered into, the policy to be issued thereon is simply the memorial of the prior parol contract, and even though the policy be not delivered until after the loss occurs, the insurance is deemed effective from the time agreed upon in the parol agreement, irrespective of any delivery of the policy (Crawford v. Trans-Atlantic Fire Ins. Co., 125 Cal. 609 [58 Pac. 177]). 'If an agent, authorized to accept risks, accepts a risk by parol, promising to deliver the policy, the insurance begins with the acceptance, and the contract in parol continues until the policy is delivered, when it is superseded by the policy' (Ferrar v. Western Assur. Co., 30 Cal. App. 491 [159 Pac. 609, 611]).\\\"\\nThe judgment is therefore affirmed.\\nConrey, P. J., and Houser, J., concurred.\"}"

cal/2197941.json

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+"{\"id\": \"2197941\", \"name\": \"P. M. DELIJIAN, Appellant, v. BARNETT ROSENBURG et al., Respondents\", \"name_abbreviation\": \"Delijian v. Rosenburg\", \"decision_date\": \"1933-09-22\", \"docket_number\": \"Civ. No. 8997\", \"first_page\": \"264\", \"last_page\": \"267\", \"citations\": \"134 Cal. App. 264\", \"volume\": \"134\", \"reporter\": \"California Appellate Reports\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T22:25:21.555198+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"P. M. DELIJIAN, Appellant, v. BARNETT ROSENBURG et al., Respondents.\", \"head_matter\": \"[Civ. No. 8997.\\nFirst Appellate District, Division Two.\\nSeptember 22, 1933.]\\nP. M. DELIJIAN, Appellant, v. BARNETT ROSENBURG et al., Respondents.\\nY. B. Arsen for Appellant.\\nNathan 0. Freedman and A. Wm. Christlieb for Respondents.\", \"word_count\": \"750\", \"char_count\": \"4445\", \"text\": \"OGDEN, J., pro tem.\\nThis is an appeal from a judgment in favor of the defendants rendered after trial by the court sitting without a jury.\\nAppellant first complains of the failure of the trial court to make and file written findings of fact and conclusions of law. The minutes of the court recite that the same were waived. Appellant seeks to overcome the effect of such recital by reference to a stipulation, signed by counsel for both parties and filed in the trial court after the entry of judgment, to the effect that written findings were in fact not waived and that the minutes of the court are erroneous. The record discloses no motion for the correction of the minute entry or order made to that effect. The stipulation was not binding upon the trial court. It was for the court, not counsel, to determine whether its record was erroneous. Upon this appeal we must assume the record to be correct and that written findings were duly waived. The sole question left for us to determine is, therefore, whether the judgment can be sustained by the evidence.\\nThe defendants were the proprietors of a cigar-stand situated in the lobby of an office building, the floor space thereof being occupied under written lease from the owners of the building. This lease contained a clause providing in the usual form that it could not be assigned or the premises subleased without the written consent of the lessor, and that any such attempted assignment or sublease would be cause for cancellation of the lease at the option of the lessor. On September 20, 1929, plaintiff purchased from defendants the stock, fixtures and goodwill of the cigar-stand for the sum of $3,500, which was paid in full. On the same day the parties entered into a written agreement subleasing the premises to plaintiff for the balance of the term and upon the same conditions of tenancy as contained in the original lease. Plaintiff thereupon took immediate possession and commenced the operation of the stand. At the conclusion of the agreement of sublease was typed a provision for the consent thereto of the owners of the building. This, however, was never signed, the defendants being unable to secure the written consent of their lessor to either the sublease or to an assignment of the lease, due to the fear of the latter that they might thereby become involved in a possible dispute between plaintiff and defendants with reference to a deposit of $2,000 held as security for the faithful performance of the terms of the lease and to be applied on the last month's rental. Because of the failure by defendants to secure such written consent plaintiff bases his claim for damages and the right to rescind.\\nPlaintiff contended at the trial that, although he took immediate possession of the cigar-stand, it was understood that the entire transaction was to be dependent upon the securing of the written consent of defendants' lessor to the sublease, and that the purchase was not to be considered consummated until such consent was secured. There was, however, ample evidence to warrant the contrary conclusion that the purchase of the stand was fully consummated.\\nAlthough we find nothing in the agreement of sublease to support defendants' contention that they were not obligated to secure the consent of their lessor thereto until plaintiff reimbursed them in full for the advanced deposit of $2,000, we are satisfied with the correctness of the conclusion reached by the trial court. Plaintiff remained in possession and operated the stand until the month of February, 1931, a period of seventeen months, at which time he voluntarily quit the premises. He made payments of rent directly to the owners of the building, who at no time indicated or made any objection to his occupancy. The sole reason given for their refusal to sign the consent was, as before stated, to avoid any dispute with reference to the $2,000 deposit. If, as the trial court might well have concluded, the owners of the building consented in fact to the sublease and waived the provision requiring that such consent be in writing, plaintiff was not injured and had no cause for complaint.\\nThe judgment is affirmed.\\nNourse, P. J., and Sturtevant, J., concurred.\"}"

cal/2210204.json

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+"{\"id\": \"2210204\", \"name\": \"H. H. BOOMER, JR. et al., Appellants, v. GEORGE W. ABBETT, Respondent\", \"name_abbreviation\": \"Boomer v. Abbett\", \"decision_date\": \"1953-11-24\", \"docket_number\": \"Civ. No. 15408\", \"first_page\": \"449\", \"last_page\": \"465\", \"citations\": \"121 Cal. App. 2d 449\", \"volume\": \"121\", \"reporter\": \"California Appellate Reports, Second Series\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T23:08:41.149470+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"H. H. BOOMER, JR. et al., Appellants, v. GEORGE W. ABBETT, Respondent.\", \"head_matter\": \"[Civ. No. 15408.\\nFirst Dist., Div. One.\\nNov. 24, 1953.]\\nH. H. BOOMER, JR. et al., Appellants, v. GEORGE W. ABBETT, Respondent.\\nErskine, Erskine & Tulley and Blewett, Blewett, Macey & Garretson for Appellants.\\nMelvin, Faulkner, Sheehan & Wiseman for Respondent.\", \"word_count\": \"5986\", \"char_count\": \"36319\", \"text\": \"PETERS, P. J.\\nDefendant, George W. Abbett, entered into a contract with the United States Bureau of Reclamation to construct a transmission line in Northern California. Plaintiffs H. H. Boomer, Jr., and S. C. Giles, a copartnership, entered into a subcontract with defendant to perform the excavation for and installation of the transmission line towers, and certain other work, called for by the prime contract. The bureau, purporting to act under the terms of the prime contract, issued a change order that affected the method and amount of excavation on 1 mile out of the total of 25 miles of the transmission project. This change order asked for new bids on some of the excavation work in this limited area. The plaintiffs promptly and vigorously objected, and contended that the prime contract and their subcontract covered the additional work called for by the change order, and refused to bid on the excavation work called for by the change order. The work on this portion of the job was awarded to another. Later, another change order and a stop order were issued by the government stopping all work in the disputed area and deleting this work from the prime contract. Plaintiffs have been fully paid for all past work. They incurred substantial preparatory expenses and also suffered a major loss of claimed profits. This action was then brought against defendant for breach of contract, it being averred that defendant had wrongfully repudiated the subcontract, and hindered performance thereunder. Damages were asked for preparation expenses in the form of debts and judgment liabilities owed to plaintiffs' subcontractors for material and equipment costs, for a portion of the cost of doing business, and for loss of profits. The case was tried before a jury. At the conclusion of the evidence the trial court granted a directed verdict in favor of defendant. On plaintiffs' motion for a new trial it was ordered that such motion would be denied on condition defendant stipulated to pay to plaintiffs the sum of $3,152.71. A check in that amount was delivered by defendant to plaintiffs, subject to a stipulation that acceptance of the check would not adversely affect plaintiffs' right of appeal. The new trial was then denied, and this appeal followed.\\nThis being an appeal from a judgment based on a directed verdict, the problem presented is whether there were any factual issues that should have been presented to the jury, that is, whether there was any evidence, or any reasonable inferences therefrom, that would have supported a judgment in favor of plaintiffs, at least in an amount in excess of that allowed on the motion for a new trial. If so, it was error to have taken the case from the jury. To determine this question some of the evidence in the lengthy reporter's transcript must be reviewed. Inasmuch as we have concluded that a reversal is required, it should be stated that in the summary of evidence that follows all conflicts have been resolved, as required by law, in favor of appellants. Therefore, when it is stated in that summary that there was evidence as to certain facts all that is meant is that there is evidence in the record, contradicted or uncontradicted, as to those facts. Where the evidence is conflicting, on the new trial, the jury may, of course, find that some of the facts contained in this-statement of facts are not true.\\nThe job involved was for the construction of a transmission line of about 25 miles in length in Northern California, that required the construction of an estimated 225 steel towers. Abbett, the individual defendant, after competitive bidding, contracted, under date of October 24, 1947, with the Bureau of Reclamation to do the construction work on the project for $587,383. On December 18, 1947, the plaintiffs, a co-partnership, entered into a subcontract with defendant, whereby they contracted to furnish all material and perform all work in reference to the excavation, concrete, reinforcing, and some welding upon the transmission towers. The plaintiffs contracted for this work, with one exception, at a level allowing the defendant a 10 per cent profit upon his bid. The contract estimated that 225 steel towers were to be constructed. Since the prime contract did not contain final specifications, plaintiffs could only estimate their total bid, which they did at $196,747.50. This contract, so far as excavation work ivas concerned, called for payment to plaintiffs at a price fixed at so much a unit of excavation in accordance with lines to be staked out by bureau employees at each tower site.\\nCertain provisions of the prime contract and of the subcontract are relevant to the problems here involved. The prime contract is a regular form contract prepared by the government for use on such projects. It contained a complete schedule of the unit and lump sum payments to be made by the bureau to the prime contractor. Article 3 provided that the contracting officer of the bureau \\\"may at any time, by a written order, and without notice to the sureties, make changes in the drawings and/or specifications of this contract and within the general scope thereof.\\\" Changes in amounts due as a result of such changes were to be settled by an \\\" equitable adjustment. ' ' Changes involving estimated increases or decreases of more than $500 could not be ordered without the approval in writing of the head of the department. Claims for adjustment under this provision had to be asserted within 10 days after the change was ordered, provided that the contracting officer, with the approval of the head of the department could, if he determined the facts warranted it, consider any claim up to the date of final settlement of the contract. Disputes over such adjustments were to be settled in accordance with the \\\"disputes\\\" clause of the contract contained in article 15.\\nArticle 4 provided that if either party should discover \\\"during the progress of the work subsurface and/or latent conditions at the site materially differing from those shown on the drawings . . ., or unknown conditions of an unusual nature differing materially from those ordinarily encountered\\\" the contracting officer should be notified, and if he found the conditions different from those specified, the contract should, with department head approval \\\"be modified to provide for any increase or decrease of cost and/or difference in time resulting from such conditions.\\\" This provision apparently contemplated that the contractor should perform the increased work called for, and that new bidders should not be solicited.\\nArticle 15 is the \\\"Disputes\\\" clause. It provided that except as otherwise provided \\\"all disputes concerning questions of fact arising under this contract shall be decided by the contracting officer subject to written appeal by the contractor within 30 days to the head of the department . . ., whose decision shall be final and conclusive upon the parties thereto. In the meantime the contractor shall diligently proceed with the work as directed.\\\"\\nThe specifications are attached to the prime contract and are made an integral part of it. Paragraph 13 of the specifications provided, among other things, that if the contractor \\\"considers any record oil ruling of the contracting officer . . . to be unfair\\\" he shall ask for written instructions, continue with the work in accordance with the ruling, and within 20 days after receiving such instructions he shall file a written protest with the contracting officer. Unless such protest is made, the ruling of the contracting officer \\\"shall be final and conclusive.\\\" Paragraph 33 of the specifications classifies the various types of excavation work called for and covered by the contract. Subdivision (a) defines \\\"Rock excavation.\\\" Subdivision (b) defines \\\"Common excavation\\\" as \\\"Excavation of all material other than rock as defined above, including, but not restricted to earth, gravel, and such material as hard pan, cemented gravel, and soft or disintegrated rock; also all boulders or detached pieces of solid rock not exceeding one-half cubic yard in volume .\\\" Paragraph 34 of the specifications provided, in part, that \\\"All excavation for tower footings shall be made accurately to the locations, grades, and neat lines of excavation shown on the drawings, insofar as practicable. .\\\" Subdivision (e) of this paragraph provided that payment for excavation would be made at applicable unit prices per cubic yard as set forth in the bids. Another portion of this subparagraph contained a \\\"changes\\\" clause particularly applicable to excavation. It provided that \\\"During the progress of the work, it may be found necessary or desirable to vary the slopes or the dimensions of the excavations from those shown .on the drawings, staked out, or otherwise established by the contracting officer, and the contractor shall be entitled to no additional allowances above the unit price per cubic yard bid in the schedule for excavation by reason of such changes: Provided, That if such changes are made after the excavation has been made to the slopes and dimensions shown, staked out, or otherwise established, and if it is determined by the contracting officer that unit costs will be increased or decreased as a result of such changes, the excavation to the changed slopes or dimensions will be ordered, in writing, as extra work by the contracting officer and payment will be made in accordance with article 5 of the contract and paragraph 9 of these specifications.\\\" Paragraph 57 of the specifications is also pertinent. It provides, in part: \\\"The following tables indicate the estimated number of towers that will be required in the transmission lines covered under these specifications. These quantities are approximate only and the Government does not guarantee the construction of all or any number of the towers listed.\\\"\\nThe subcontract between plaintiffs and defendant, which is a standard printed form of subcontract used by subcontractors on public work, refers to the prime contract, provides that appellants agreed to perform the portion of the work covered \\\"in accordance with the General Conditions\\\" and specifications of the prime contract, and that the \\\"General Conditions, Drawings and Specifications\\\" of the prime contract \\\"hereby become a part of this Contract.\\\" Another clause provided that the subcontractor agrees to be bound to the prime contractor by the terms, conditions and specifications of the prime contract and \\\"to assume . . . the obligations and responsibilities\\\" of the prime contractor as set forth in his contract with the government. The subcontract also provided that the subcontractor agreed to make \\\"all claims for extras . . . and for damages for delays or otherwise, to the Contractor\\\" in the manner provided in the prime contract.\\nThe plaintiffs started performance of their subcontract in December of 1947, being paid periodically by the unit according to pay lines fixing the boundaries and depth of each excavation at each tower site as set forth by bureau employees. The subcontractor had estimated the total cost of the work covered at $196,747.50, but, because more work was called for than originally contemplated, the appellants were in fact paid $218,989.19 in accordance with the unit prices set forth in the subcontract. They testified, however, that no profit was made on the excavation work paid for\\u2014in fact, losses were incurred. Plaintiffs concede that they were paid for all completed work performed by them, and for all materials furnished in connection with the completed work.\\nEverything proceeded without difficulty until February of 1948. On February 3d the defendant wrote to plaintiffs setting forth several complaints made by bureau engineers, and stating that \\\"the Bureau will require excavation of several hundred cubic yards of material now unclassified in our contract. This excavation is located in the Placer Mining Area. Please give us your quotation as soon as possible so that we can obtain authority to proceed.\\\" It appears from the evidence that this \\\"Placer Mining Area\\\" had not been previously tested by any government borings. It turned out that this area was covered with dredger tailings, material that could be removed with power equipment. Plaintiffs promptly notified defendant that they refused to bid upon this project because they contended that this so-called new work was already included and covered by the prime contract and their subcontract. They contended that the removal of the dredger tailings was but another form of excavation necessary to be made to install the footings for the towers. The removal of these dredger tailings was much easier than the work covered by the balance of the contract, and plaintiffs therefore expected to make a big profit in this area, that would permit them to recoup losses suffered in other areas.\\nUnder date of May 13, 1948, bureau employees wrote to defendant notifying him that the heights of some 12 designated towers in this area were to be increased, that the required excavations would have to' be deeper. The letter stated that the excavation of \\\"overburden-dredger tailings\\\" was not covered by the original contract and requested new unit prices for this work, and for certain other additional work. This letter apparently was written pursuant to change order No. 2 dated February 5, 1948, and addressed to defendant. By this chatige order the government, purporting to act under article 3 of its contract, ordered changes in the heights of 12 towers in the dredger area and in the nature and depth of the excavations required. The change order provided that for excavating \\\"overburden-dredger tailings for footings\\\" of the 12 towers defendant would be paid but $.75 per cubic yard.\\nOn May 14, 1948, defendant made a public request for new bids on the excavation work covered by the change order. Plaintiffs refused to bid, and this new work was awarded to one Draper at $.60 per cubic yard. Between May and July of 1948 plaintiffs vigorously protested to defendant the bureau's actions, asserting their right to. undertake this newly- specified excavation work under their contract and at the prices therein contained, but expressing a willingness to perform the other new work called for by the change order at the new rates. Defendant conveyed these objections to the bureau officials, but did not file a formal protest. In July, 1948, plaintiffs were notified that the excavation work involved in the dispute had been awarded to others. Plaintiffs again protested by letter to defendant. Defendant, in two letters dated in July of 1948, ordered plaintiffs to perform the work in this area, other than the removal of the dredger tailings overburden, in accordance with the revised plans. Plaintiffs proceeded to try to comply by purchasing materials and letting subcontracts. However, on August 4, 1948, plaintiffs were ordered to stop all work called for by the revised drawings because the work might not be done, and on September 10, 1948, were definitely informed that this part of the work would not be performed. This was predicated upon change order No. 3 and a stop order stopping all work on 16 towers, 12 of which were in the dredger area and four were not.\\nThe evidence of the bureau engineers was to the effect that after the prime contract was executed they discovered that it would be dangerous to erect the 12 contemplated towers upon the foundation of the dredger tailings, so that deeper excavations removing the dredger tailings were required. There was much controversy between the parties and their witnesses as to the meaning of \\\"overburden.\\\" Boomer testified that the term had no specialized significance in contracting terminology, but simply signified a stratum of material that was on top of another stratum. He conceded that the overburden of dredger tailings could be removed very cheaply by bulldozer and would not have to be removed by hand or truck-mounted tools, as much of the other work had to be done. Plaintiffs testified that, although most of the other excavation work had been done by hand tools or truck-mounted tools, some tailings existed in these other areas and had been removed by bulldozers with bureau permission. \\\"Excavation, common, hand, for footings\\\" was provided for in the prime contract at $9.00 per cubic yard, and at $8.10 per cubic yard in the subcontract, while, as already pointed out, the change order fixed defendant's allowance for overburden at but 75 cents per cubic yard, and Draper agreed with defendant to perform the work for 60 cents. Thus, of course, plaintiffs expected to make a large profit in the dredger tailings area so as to recoup losses suffered elsewhere.\\nAfter the work on the 16 towers had been stopped plaintiffs submitted to defendant claims for damages for breach of the contract. They first submitted statements claiming over $10,000 for out-of-pocket expenses incurred in reliance on the orders given by defendant to continue work in accordance with' the revised plans except for the removal of the overburden, almost $70,000 for damages suffered because of the cancellation of the contract, which damages were computed by ascertaining the loss of anticipated profits on the entire job. A later demand increased the claim for these losses by several thousand dollars.\\nThe reliance damages were incurred in preparing for performance of the revised work called for by change order No. 2 other than excavation in the form of purchase orders for additional steel necessitated by raising the height of the towers, for new required reinforcing steel and steel dowelling, for losses on a subcontract for furnishing and driving piling, for expenses on certain necessary trips, and for expenses in hiring new equipment. Plaintiffs, after the dispute in reference to the overburden had arisen, had received from defendant two letters dated July 15 and 21, 1948. These letters notified plaintiffs to proceed with all the work called for in the specifications found in change order No. 2 except the removal of the overburden.\\nAfter the bureau had eliminated the construction of the 16 towers, there was considerable correspondence between all the parties resulting in the bureau's finally making an award to defendant for plaintiffs of $3,152.71, representing certain materials ordered by plaintiffs in connection with the preparatory work and then sold to the bureau. The bureau disallowed several items, including the amount of a judgment a subcontractor had secured against plaintiffs by reason of the cancellation. This is the precise amount later allowed by the court to plaintiffs as a condition of denying the new trial. This sum was not paid to plaintiffs until the denial of the motion for a new trial.\\nAt the trial plaintiffs, besides offering evidence as to loss of profits, showed substantial losses upon judgments obtained by subcontractors against them because the work on the towers in the disputed area was stopped. On this evidence the court denied a nonsuit, but later granted a directed verdict in favor of defendant. On the motion for a new trial the trial court did allow plaintiffs the $3,152.71 that had been awarded them by the bureau. The plaintiffs appealed.\\nAlthough the facts are quite complicated, the long record containing many facts not contained in the above summary, the primary issue presented on this appeal is whether there was any factual issue that ought to have been submitted to the jury. The basic arguments of respondent are that no factual issues were involved because, under the \\\"protest\\\" clause of the prime contract, appellants did not exhaust their administrative remedies granted to them by such clause, and, under the \\\"disputes\\\" clause, determinations of the contracting officer were made final. We do not agree with either of these contentions.\\nIn order to decide the issues presented, reference must be again made to some of the provisions of the contracts already summarized. We have no doubt at all, and in this connection agree with respondent, that the terms of the prime contract, including the conditions contained in the specifications, became, so far as applicable, part and parcel of the terms of the subcontract. The subcontract expressly provides that this shall be so. This being so, the provisions of the prime contract, as between appellants and respondent, are binding on the subcontractor and upon the original contractor. This means that respondent, as prime contractor, was legally bound to the subcontractor, among other things, to transmit and urge the subcontractor's claims before the bureau, and the subcontractor was bound to present his claims covered by the clause to the contractor in the fashion, so far as applicable, provided in the prime contract for presentation of claims by the contractor.\\nThe prime contract authorized the contracting officer to settle 11 all disputes concerning questions of fact arising under this contract,\\\" and provided that on such questions his decision should be final and conclusive. The prime contract requires a protest to be made as to any \\\"ruling of the contracting officer\\\" deemed to be unfair. The question that is first presented is whether respondent and appellants complied with these protest provisions.\\nThere is ample evidence to show that appellants lodged appropriate and numerous protests with respondent in reference to the problems arising out of the prohibition against excavating for the 12 towers in the dredger tailings area. From the time the bureau first announced its intention to reclassify the work in this area the appellants orally and by letter claimed the right to perform this work under their contract. Thus, as to this claim the jury could have found that this amounted to a compliance by appellants with the protest clause of the prime contract. There is also evidence that indicates that respondent complied with his duties owed to appellants under this clause, at least to a certain extent. The record shows that respondent forwarded all claims of appellants to the bureau and urged such claims on behalf of appellants. But there is also evidence that respondent never filed with the bureau any claim, in his own right, that his contract covered the dredger tailings excavation. It might well be argued that this should have been done to fulfill respondent's obligations to appellants. At any rate, under the evidence, the jury could have found, had the case been submitted to it, that appellants had protested the bureau's decision sufficiently to the respondent to comply with the protest clause, and that if there was a failure to present such protests to the bureau as required by the prime contract it was the fault of the respondent. This is important because, if it had been found that appellants preserved their rights by a sufficient protest, the protest clause here involved provides that unless such protest is made to a ruling, the ruling shall be final and conclusive. Thus the protest clause does not purport to make the ruling of the contracting officer final if a protest is made.\\nRespondent cites United States v. Moorman, 338 U.S. 457 [70 S.Ct. 288, 94 L.Ed. 256], and United States v. Wunderlich, 342 U.S. 98 [72 S.Ct. 154, 96 L.Ed. 113], claiming that they establish the law to be that under such a protest clause decisions of the contracting officer are final on all questions whether protested or hot, and whether legal or factual. But these cases did not involve the interpretation of clauses such as the one here exempting properly protested rulings from being final and conclusive. While these cases do declare a strong policy in favor of the finality of arbitral decisions, a policy also expressed by this court in Crofoot v. Blair Holdings Corp., 119 Cal.App.2d 156 [260 P.2d 156], they are of no help in the present case where the clause cannot be interpreted to include protested rulings. (See for a discussion of the Moorman and Wunderlich cases, 39 Am.Bar Assn.Jour. 373.)\\nIn the instant case there was conflicting evidence and inferences therefrom as to the meaning of \\\"overburden\\\" and of \\\"common excavation,\\\" and over whether the latter included the former. The specifications define various types of excavation in paragraph 33 and then make \\\"common excava tion\\\" the residual class. In paragraph 34 the excavation portions of paragraph 33 are made applicable to \\\"excavation in loose or unstable soil,\\\" and expressly made applicable to excavation by power-driven machinery other than augers. (See, also, for definition of \\\"excavation,\\\" United States v. Blauner Const. Co., 37 F.Supp. 968.) Certainly it was a factual question as to whether the change order provided for or contemplated excavation of a type already committed to appellants under the \\\"common excavation\\\" clause of their contract. If the jury had found that the prime and subcontracts included the removal of the overburden, then the jury could have found that the issuance of change order No. 2, insofar as it attempted to change the method of payment for common excavation work on the 12 towers, was a breach of the contract by the bureau, and in turn by respondent.\\nIt is true that appellants are trying to use change order No. 2 to secure damages for preparatory and other expenses incurred in trying to comply with its provisions as to the work other than excavation, and to renounce it as invalid insofar as excavation is concerned. This is a permissible approach. It seems quite clear that \\\"change order No. 2 is divisible. Insofar as it ordered a change in the type of work to be done on the 12 towers it merely provided for a needed change required by the nature of the work, and a change that was contemplated and provided for by the contract in its \\\"changes\\\" clauses. When the prime contract was executed there were no final plans for these towers. The evidence shows that the original plans called for spot excavation in the dredger tailings area, a method of excavation that would have required the towers to stand in rock and gravel. This, according to bureau engineers, would have been unsafe. The portion of the order raising the height of the towers and changing the amount of excavation called for was valid, and pursuant to the contract. But the portion of the order refusing to pay for this new work as provided in the contract was invalid, and could have been found to result in a breach of the contract. Of course, if the jury had found that change order No. 2 provided for excavation already included in the contract, appellants would have been entitled to perform and receive payment for all units necessary to the performance of a unit price contract. (Callahan Const. Co. v. United States, 91 Ct.Cl. 538; McGaw v. Master Craft Homes, 105 Cal.App.2d 304 [233 P.2d 185]; Keystone Structural Co. v. Link-Belt Co., 265 F. 320.)\\nThe contention of respondent that since appellants did not complete the excavation they could not receive payment for such work under specifications paragraph 34, and that payment of damages would amount to payment, is unsound. Damages for breach are, of course, not \\\"payment\\\" at all.\\nThus the jury could have found that change order No. 2 was a breach, but a breach that appellants did not treat as a discharging breach, but in part, at least, tried to continue performance. The breach occurred prior to any attempt by the bureau to discontinue work in the area and the right to damages accrued before change order No. 3 and the stop order were issued.\\nBut, says respondent, if this determination was factual, it is necessarily controlled by the \\\"disputes\\\" clause of the prime contract, making determinations of the contracting officer final and conclusive as to questions of fact. In other words, respondent contends that if the meaning and application of the \\\"common excavation\\\" clause is factual, it is governed by the \\\"disputes\\\" clause. It is urged that at most appellants had a right of \\\"equitable adjustment\\\" under article 3 of the prime contract. There can be no doubt at all that \\\"equitable adjustment\\\" is a question of fact upon which the administrative ruling is final. (United States v. Callahan Walker Const. Co., 317 U.S. 56 [63 S.Ct. 113, 87 L.Ed. 49]; United States v. Blair, 321 U.S. 730 [64 S.Ct. 820, 88 L.Ed. 1039].) Thus the pivotal question on this appeal is the extent and application of the \\\"disputes\\\" clause.\\nOf course, by holding that the interpretation of the \\\"common excavation\\\" clause was one of fact for the jury, at first blush it would seem that such question was then one of fact within the meaning of the \\\"disputes\\\" clause. But, upon analysis, this conclusion does not follow. This is so because the cases interpreting federal contracts have clearly established that actions that amount to an actual breach of the contract are not covered by the \\\"disputes\\\" article. (Callahan Const. Co. v. United States, 91 Ct.Cl. 538; Silberblatt & Lasker, Inc. v. United States, 101 Ct.Cl. 54.) The Silberblatt case held, and properly so, that the contracting officer's authority is limited to disputes arising under the contract and does not extend to disputes over a breach of the contract. In Continental Illinois Nat. Bank & T. Co. v. United States, 101 F.Supp. 775, certiorari denied 343 U.S. 963 [72 S.Ct. 1057, 96 L.Ed. 1361], it was held that claims for unliquidated damages for breach of contract are not proper subjects for departmental adjudications. (See, also, Gemsco, Inc. v. United States, 115 Ct.Cl. 209; Peter Kiewit Sons' Co. v. United States, 74 F.Supp. 165; Blair v. United States, 147 F.2d 840, rehearing granted 150 F.2d 676.) Thus, it must be held that the \\\"disputes\\\" clause was not applicable to questions arising out of a breach of contract. Thus, whether the bureau breached its contract by change order No. 2 was a question of fact for the jury, and a question not included within the \\\"disputes\\\" clause of the contract.\\nNow we turn to legal rights arising after change order No. 2 was issued. That change order only affected the 12 towers in the dredger tailings area. As to the four additional towers later affected by change order No. 3 and the stop order, change order No. 2 specifically recognized that appellants were entitled to do the excavation work on these towers at the unit prices quoted in the contract. Respondent admitted that, since these four towers were outside the dredger tailings area, the appellants were authorized by change order No. 2 to proceed with the excavation and conceded that his letter of authorization sent to Draper did not authorize Draper to conduct operations on these four towers. But the revised footings contained in the change order applied to these four towers. In other words, as to these four towers the jury could have found that appellants' right to excavate was enlarged and not removed by change order No. 2.\\nAfter the dispute had arisen by reason of change order No. 2, the bureau issued change order No. 3 stopping work on the 12 towers in the dredger tailings area and on the four additional towers. In other words, this change order deleted all 16 towers out of the total 225 estimated in the prime contract, that is, deleted about 1 mile of the 25-mile transmission line. Some four years after the events here occurred, this 1 mile was bridged with wooden poles. Now what was the legal effect of the attempted deletion of these 16 towers 1 Respondent claims that under the contract the bureau had the right to delete the 16 towers without violating the contract. The appellants claim the contrary. We agree with appellants.\\nUnder the terms of the prime contract (article 3) the contracting officer was empowered to make \\\"changes in the drawings and/or specifications of this contract and within the general scope thereof.\\\" (Italics added.) Damages caused by such changes were to be settled by an \\\"equitable adjustment\\\" as to which the arbitral provisions of the contract applied, under the rule of the cases already cited. The specifi cations declared that the number of towers shown in the plans was a mere estimate, and that the government did not guarantee the construction of \\\"all or any number of the towers listed.\\\" Thus, the question is presented whether the government had the legal right, as a matter of law, to delete the 16 towers, or whether such deletion could be found to be a breach of the contract.\\nWe do not believe that the prime contract, as a matter of law, authorized the deletion of the 16 towers without liability except for an \\\"equitable adjustment.\\\" There can be no doubt that the prime contract contemplated that some towers might be deleted during construction, and that such deletion could be made without liability. But the contract also contemplated and provided that the transmission line was to be constructed. It is a contract to construct a transmission line, not to construct about 225 towers. It is one thing to delete towers found to be unnecessary in the construction of the transmission line. It is quite another to delete an integral part of the work that results in the transmission line not being constructed. This 1-mile gap in the transmission line was not bridged until four years after this dispute arose, and then by a wooden pole line. The bureau section chief testified that the work was stopped in this area only because of the dispute with appellants.\\nUnder the cases, if the contract imposes a duty on the government to complete the construction of the structure involved in the contract, a \\\"changes\\\" clause does not authorize the deletion of an integral part of the work. (General Contracting & Const. Co. v. United States, 84 Ct.Cl. 570; Stapleton Const. Co. v. United States, 92 Ct.Cl. 551; Silberblatt & Lasker, Inc. v. United States, 101 Ct.Cl. 54; Del Balso Const. Corp. v. City of New York, 252 App.Div. 683 [15 N.E.2d 559]; Litchfield Const. Co. v. City of New York, 244 N.Y. 251 [155 N.E. 116]; see first opinion in Blair v. United States, 147 F.2d 840; Peter Kiewit Sons' Co. v. United States, 74 F.Supp. 165; Continental Illinois Nat. Bank & T. Co. v. United States, 101 F.Supp. 755.) These cases establish the law to be that under a changes clause the government has no power to change the essential nature or main purpose of the contract, but may only make changes incidental to the primary object of the contract. The change order under such clauses may not essentially alter the project contemplated by the contract.\\nThis construction of such clauses is not only in accordance with their obvious purpose, but is also strongly supported by public policy. If the government were empowered by such clauses to alter materially the object of the contract, after construction had started, all bidders would have to take such possibility into consideration and materially raise their bids in anticipation of such losses, thus increasing the cost of public works.\\nThus the question is, did the deletion of the 16 towers materially alter the fundamental object of the contract, or merely provide for a deletion incidental to the primary object of the contract? This was a question of fact not covered by the \\\"disputes\\\" clause for reasons already discussed, and was a question of fact that should have been left to the jury. There was evidence that this deletion was a material alteration that defeated the object of the contract by prevention of the completion of the object of the contract. The deleted area was in the middle of the transmission line. This being so, it was error to have taken this issue from the jury.\\nThere are many other points discussed by counsel. These need not be discussed. Enough has been said to demonstrate that prejudicial error was committed in granting the directed verdict, inasmuch as the trial court erroneously thus took from the jury the determination of fundamental factual issues.\\nThe judgment appealed from is reversed.\\nBray, J., and Wood (Fred B.), J., concurred.\\nA petition for a rehearing was denied December 24, 1953, and respondent's petition for a hearing by the Supreme Court was denied January 20, 1954.\"}"

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+"{\"id\": \"2212331\", \"name\": \"THE PEOPLE, Respondent, v. MARTIN BLAIR, Appellant\", \"name_abbreviation\": \"People v. Blair\", \"decision_date\": \"1932-04-11\", \"docket_number\": \"Crim. No. 2168\", \"first_page\": \"455\", \"last_page\": \"458\", \"citations\": \"122 Cal. App. 455\", \"volume\": \"122\", \"reporter\": \"California Appellate Reports\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T00:39:54.089396+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PEOPLE, Respondent, v. MARTIN BLAIR, Appellant.\", \"head_matter\": \"[Crim. No. 2168.\\nSecond Appellate District, Division One.\\nApril 11, 1932.]\\nTHE PEOPLE, Respondent, v. MARTIN BLAIR, Appellant.\\nJoseph W. Ryan and Frank J. Ryan for Appellant.\\nU. S. Webb, Attorney General, and John D. Richer, Deputy Attorney-General, for Respondent.\", \"word_count\": \"819\", \"char_count\": \"4777\", \"text\": \"TAPPAAN, J., pro tem.\\nAppellant, together with one Stalker, was charged with the crime of burglary. The information, which was in two counts, charged that appellant and Stalker entered a store upon two separate occasions, and took therefrom certain automobile accessories. Stalker plead guilty to one of the counts in the information, and appellant entered a plea of not guilty to both counts and was placed on trial. A verdict of guilty upon both counts was found by the jury. Appellant's motion for a new trial was denied, and he appeals from the judgment entered against him and from the order denying his motion for a new trial.\\nFrom the evidence it appears that appellant was a special police officer in the city of Glendale, and was employed by a so-called merchants' patrol system in that city in the protection of stores and other places of business. Appellant's co-defendant Stalker was a police officer of the city of Glendale. There was, within the territory assigned to the defendants to patrol, a store for the sale of automobile accessories. There is no question that upon two occasions, in the nighttime, and while defendants were patrolling their assigned territory, they entered this store. The complaining witness, the owner of the store, testified that on both such occasions, on closing the store the night before the alleged burglaries, he securely locked the store, and on the mornings after the burglaries he found the store likewise locked. He further testified that on both such occasions he examined the lock upon the front door in the morning and found that it had the appearance of having been tampered with during the night. His testmony also showed that on both occasions personal property, which was in the store at the time he locked it the night before, was missing in the morning after he un locked the store. Some of the property which he identified as so missing was afterward found in the possession of appellant, and appellant admitted that on one of the occasions he took from the store an automobile horn.\\nBoth appellant and Stalker testified that on both of the occasions when they entered the store they found the door to the store open and unlocked, and that they never saw the other take any property from the store. But, they both admitted taking property from the store, but were uncertain as to which time when they entered the store that they took the property. There was some conversation had between them in which appellant intimated that he would like to have the horn, which he later admitted he took, and that if he took it then, that he would return and pay for it or get it as a gift.\\nAppellant attacks the judgment and ruling of the court on the ground that the evidence is insufficient to support the jury's verdict. Appellant urges that the evidence was insufficient to justify the verdict in that the prosecution did not prove that appellant entered the store with the intent to commit larceny. The jury were entitled to infer from the evidence as presented to them, both direct and circumstantial, that the entry to the store was made with a felonious intent. The evidence is merely conflicting on this question, and is not subject to review before this court. The jury believed the story of the complaining witness and refused to place credence in that of the defense. \\\"In other words, the record presents some evidence showing the intent with which the defendant entered the premises and the implied finding of the jury was that he had entered the building with an unlawful intention. Under these circumstances this court may not disturb the judgment based on that verdict. We think the conclusion which we have reached is supported by, rather than questioned by, the authorities cited by the defendant, and that it is further supported by People v. Brittain, 142 Cal. 8 [100 Am. St. Rep. 95, 75 Pac. 314], and People v. King, 4 Cal. App. 213 [87 Pac. 400].\\\" (People v. Westwood, 88 Cal. App. 505, 507 [263 Pac. 856].)\\nThe fact that the court refused to instruct the jury to return a verdict of not guilty was not error under the circumstances present here. As has been pointed out, the evidence was sufficient to support the verdict. The other assignments of error, that the verdict is contrary to the evidence and that the court erred in denying appellant's motion for a new trial, are both answered by our discussion of the sufficiency of the evidence.\\nThe judgment and order appealed from are affirmed.\\nConrey, P. J., and Houser, J., concurred.\"}"

cal/2216393.json

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+"{\"id\": \"2216393\", \"name\": \"C. A. DOUGLASS, Jr., Respondent, v. GUARDIAN HOLDING CORPORATION (a Corporation), Appellant\", \"name_abbreviation\": \"Douglass v. Guardian Holding Corp.\", \"decision_date\": \"1933-06-15\", \"docket_number\": \"Civ. No. 7654\", \"first_page\": \"585\", \"last_page\": \"593\", \"citations\": \"132 Cal. App. 585\", \"volume\": \"132\", \"reporter\": \"California Appellate Reports\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T23:23:18.335990+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"C. A. DOUGLASS, Jr., Respondent, v. GUARDIAN HOLDING CORPORATION (a Corporation), Appellant.\", \"head_matter\": \"[Civ. No. 7654.\\nSecond Appellate District, Division One.\\nJune 15, 1933.]\\nC. A. DOUGLASS, Jr., Respondent, v. GUARDIAN HOLDING CORPORATION (a Corporation), Appellant.\\nVictor Ford Collins for Appellant.\\nWilliam Ellis Lady for Respondent.\", \"word_count\": \"2661\", \"char_count\": \"15623\", \"text\": \"DESMOND, J., pro tem.\\nThis is an appeal by defendant from a judgment awarding plaintiff the sum of $2,352.06, made up as follows: $1,000 for time lost by plaintiff in preparing to enter into a garage business on premises of defendant; $1,000 for conversion of certain personal property belonging to plaintiff; $126.43 for wages of a watchman guarding said personalty; $225.83 for loss sustained by plaintiff in relation to articles of equipment which he purchased in anticipation of engaging in said garage business. In totaling the specific items above mentioned, an error of twenty cents in favor of the defendant appears in the judgment.\\nThe matters complained of were originally covered by a single complaint, the first count of which sought damages for conversion, the other counts, damages arising out of a transaction in relation to a lease. The first count was later dismissed and a separate action filed in lieu thereof and this new action was consolidated for trial with the original action. The appeal is upon the judgment-roll alone, and attacks particularly the findings made by the lower court as the basis of its judgment.\\nIn the fall of 1927 defendant was erecting two buildings; a large apartment house, known as the Guardian Apartments, and, on the same premises, a one-story garage building. According to the findings, plaintiff and defendant on October 31, 1927, entered into an agreement in writing bearing that date, whereby defendant leased to the plaintiff said garage building for a ten-year period from and after \\\"said Guardian Apartments were officially accepted by the lessor from the builder thereof, and said apartments were open to receive tenants and from and after written notice of said acceptance had been given by the defendant to plaintiff\\\". The court also found \\\"that said Guardian Apartments and said garage should have been completed and should have been officially accepted by the defendant from the builder thereof and said building opened to receive tenants and written notice of such acceptance should have been given plaintiff on or about the 15th day of January, 1928, and that ample time elapsed between the 31st day of October, 1927, the date of said lease, and said 15th day of January, 1928, within which it should have as aforesaid completed said building; that said Guardian Apartments and said garage were not completed and ready for tenants until on or about the 1st day of May, 1928, which the court finds to be an unreasonable length of time ' '.\\nIn paragraph 21 of the findings the following appears:\\n\\\"21. The court finds that plaintiff lost time equal to at least one full month between the 31st day of October, 1927, and February 1, 1928, and two and one-third months between the 1st day of February, 1928, and the 10th day of April, 1928, on which day defendant made other use of said premises, or a total loss of time of three and one-third months, in preparing to enter upon said premises and conduct therein and thereon a first-class garage business, and that the reasonable value of the time spent and lost by plaintiff in connection therewith is the sum of $1,000.00, and by reason thereof plaintiff sustained damages in a like amount, to-wit, the sum of $1,000.00; that plaintiff paid out, laid out and expended various sums of money in preparing to enter upon said premises and conduct and operate thereon a first class garage business; and in the same connection, with the consent of the defendant, placed upon said premises various articles of personal property, and in particular those mentioned in plaintiff's complaint in action No. 280376, and all of which articles mentioned in said complaint the defendant converted to its own use and benefit, the reasonable value of which at the time of said conversion was the sum of $1,000.00, and, by reason whereof plaintiff sustained further damages in a like amount, to-wit, the sum of $1,000.00.\\\"\\nBecause plaintiff in his complaint alleged, \\\"That in the making, execution and delivery of said- agreement it was understood and agreed between the parties thereto and hereto that said Guardian Apartments would be officially completed and officially accepted from the builder thereof and open to receive tenants not later than the 1st day of December, 1927, and that it was further understood and agreed by said parties that thereupon but not later than said 10th day of December, 1927, plaintiff herein should receive possession of said garage building and be permitted to conduct a general garage business therein,\\\" and also that the lease was 'for the period of ten years beginning on or about the 10th day of December, 1927\\\", appellant contends that there is no legal basis for the award of $1,000 for the loss of time of the plaintiff, and also that the findings indicate that there was a complete failure of proof of the allegations in regard to the beginning of the lease term.' Commenting first on this latter contention, it seems to us that where by defendant's own reasoning as developed in its brief the time of beginning was somewhat indefinite, a finding that the premises should have passed to plaintiff under the lease on or about January 15, 1928, approximately one month after the time named by plaintiff as the correct date should not be set aside on the ground mentioned, failure of proof. As to the contention that there is no legal basis for an award of damages for time lost in ineffectual preparations to enter upon a lease, we have in mind the rule referred to in United States v. Behan, 110 U. S. 338 [4 Sup. Ct. 81, 28 L. Ed. 168], holding that the party, who voluntarily and wrongfully puts an end to a contract, and prevents another from performing it is es-topped from denying that the injured party has been damaged to the extent of his actual loss and his outlay fairly incurred. In the case of Schnierow v. Boutagy, 33 Cal. App. 336 [164 Pac. 1132], we find a situation where defendant agreed to lease to plaintiff a storeroom then in process of construction. For breach of this contract plaintiff recovered a money judgment for loss of his time in securing another storeroom. Since in the instant case the court found that there was a breach by the defendant of this contract in his failing to deliver the premises \\\"at the time and constructed in the manner agreed upon\\\", and further that defendant, by devoting the garage building to another use on or about April 10, 1928, made it impossible for the plaintiff to obtain possession, we feel that the court was fully warranted in law in fixing as damages the amount of money which under the evidence he found would fairly or reasonably compensate the plaintiff for his lost time.\\nDefendant complains that although there is a finding that demand for the premises was made by the plaintiff the finding is defective in not stating when the de mand was made. Quoting from his brief: \\\"From aught that appears from the findings, where no time is given, the demand may have been made on the 10th day of April, 1928. Without a finding as to the time of the demand by plaintiff for possession of the premises, there can be no possible cause of action.\\\"\\nIn view of a finding made by the court that plaintiff was ready, able and willing to accept the garage building on December 10, 1927, we are content to believe that from the evidence adduced at the trial the court drew its conclusion that demand for possession was made a sufficiently long time before April 10th for the three and one-third months upon which the award for lost time is made to elapse.\\nAppellant contends that various findings of the court are inconsistent or contradictory. \\\"In paragraph 8 of the findings (Clk. Tr., p. 54) we have a definite finding of a rescission of the lease by the plaintiff, although no time is given as to this rescission. In the same findings of fact we have a directly opposite theory, to-wit: that on April 10th, 1928, the defendant refused to give the possession of the garage to the plaintiff, and devoted it to other uses. Now which theory of the findings is correct? In other words, we have an issue raised by the findings.\\\" To analyze this complaint we must quote paragraphs 8 and 9 of the findings:\\n\\\"8. The court finds that the defendant also failed and refused and neglected to provide suitable and adequate illumination along said driveway for the purposes aforesaid, and also failed, refused and neglected to install and/or maintain gas and/or electric connections and meters for said garage separate and apart from said apartment house building by which gas and electric current would be furnished to said garage and a measurement thereof made apart from said apartment house; and that the court further finds on account of all the foregoing and the failures on the part of the defendant, as hereinbefore found, it became and was necessary for plaintiff to and he did refuse to accept' possession of said premises for the reason he could not make use thereof by reason of the narrowness of said right of way from said Hollywood Boulevard to said garage building, and lack of proper illumination and lack of proper gas and electric connections and meters. j\\n\\\"9. The court finds that plaintiff demanded that defendant comply with its said agreement mentioned above and complete said improvements in accordance with the provisions of said agreement and deliver the possession of said garage to plaintiff, but that defendant not only failed and neglected to complete said improvements as agreed but it also failed and refused to deliver possession of said garage to plaintiff, and on the contrary on or about the 10th day of April, 1928, devoted it to other uses and purposes and not in the performance of said ten year lease, and therefore made it impossible for plaintiff to obtain possession thereof. ' '\\nSomewhere in this paragraph 8 appellant sees \\\"a definite finding of a rescission of the lease by the plaintiff\\\", but we see none. The finding is rather that there was a refusal to accept possession for perfectly good reasons. If the driveway had been widened and lighting apparatus adjusted as demanded by plaintiff and as agreed upon, prior to April 10th, this plaintiff might have entered into possession immediately thereafter. Certainly no release of the defendant from liability under the lease or the agreement between the parties is implied by plaintiff's refusal to accept the premises unless or until they were put in the condition they were promised to him.\\nThis appellant also argues that in paragraph 21 of the findings of fact there is a finding \\\"that the plaintiff actually took possession of the premises with the consent of the defendant\\\". If there is such a finding, of course it contradicts or is inconsistent with the other findings just above quoted, that plaintiff necessarily refused to accept possession and that defendant refused possession of the premises. Is there in paragraph 21 a finding that \\\"plaintiff actually took possession with the consent of the defendant\\\"? Not at all. The finding is merely that plaintiff placed upon the premises, with the consent of the defendant, certain articles of personal property which defendant converted to its own use to the damage of plaintiff in the sum of $1,000.\\nThe appellant in answering the conversion suit made the following allegations: \\\" . . . that the plaintiff did trespass upon the property of the defendant herein and place certain property therein against the defendant's wishes, and without his knowledge or request. That thereafter the defendant demanded of the plaintiff that he leave the prem ises, and that the defendant (plaintiff?) did so without removing the property left thereon. That the defendant did not seek or desire said property, and that the plaintiff has failed, neglected and refused to make demand for said property.\\\"\\nIt is now contended that \\\"if the plaintiff with the consent of the defendant, placed the personal property (of which the plaintiff has received an award of $1,000.00 damages) on the property, and in the possession of the defendant, with the consent of both parties, then the plaintiff could not maintain an action for damages for conversion of this property except and until the plaintiff has alleged, proven and there was found a DEMAND from plaintiff to defendant for the possession of the property alleged to have been converted\\\". It may be that the evidence showed' that the plaintiff's consent or action in placing the property in the garage was induced by fraud, and if so, a demand would not be required. Field, J., in the ease of Paige v. O'Neal, 12 Cal. 483, 495, said: \\\" . It is a general rule, that when the possession of property is originally acquired by a tort, no demand previous to the institution of suit for its recovery is necessary\\\", a rule which was also followed in Sargent v. Sturm, 23 Cal. 359, a case in which the action was to recover the possession or value of the property. The complaint, in the case at bar, alleged that defendant \\\"surreptitiously and tortiously and unlawfully sought and gained and took possession of all thereof (the personal property) from the plaintiff, against his will and without his consent and converted the same to its own use\\\" and all of these allegations the court by finding No. 23 found to be true.\\nWe have no record of the evidence before us, and in such a case \\\"it will be presumed that the trial court found in accordance with the evidence that was before it\\\". (Turgeon v. Barney, 70 Cal. App. 432, 435 [233 Pac. 394, 395].)\\nObjection is made to the allowance of the last two items mentioned in the judgment, $126.43 for watchman's wages, and $225.83 loss sustained in the purchase and subsequent sale of equipment for the garage. There is a finding that the watchman was employed with the consent of the defendant \\\"to properly guard and care for\\\" the personal property and we are not prepared to say, under the circumstances of this case and in the absence of a record of the evidence, that this award should be set aside on the theory of defendant that there is no finding that the services were necessary or that the amount paid therefor was reasonable. As to the last item, $225.83, we advert once more to the rule adhered to in United States v. Behan, supra, and are convinced that the trial court considered, with the evidence before it, that this constituted fairly the measure of damages for expense incurred in regard to the garage equipment. We quote here from the decision in the case of Burnham v. Abrahamson, 21 Cal. App. 248, at p. 255 [131 Pac. 338, 342] : \\\"On an appeal from the judgment on the judgment-roll alone, every fact essential to the support of the court's findings and the judgment must be presumed to have been proved. Or, as the rule is stated in all the cases: 'All intendments will be made in support of the judgment, and all proceedings necessary to its validity will be presumed to have been regularly taken; and only matters which might have been presented to the court below which would have authorized the judgment will be presumed to have been thus presented, if the record shows nothing to the contrary.' ' (Citing many cases.)\\nJudgment affirmed.\\nHouser, Acting P. J., and York, J., concurred.\\nA petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on August 14, 1933.\"}"

cal/2228498.json

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+"{\"id\": \"2228498\", \"name\": \"CHARLES A. MENNE, Appellant, v. P. J. FRIERMUTH COMPANY (a Corporation) et al., Respondents\", \"name_abbreviation\": \"Menne v. P. J. Friermuth Co.\", \"decision_date\": \"1933-02-27\", \"docket_number\": \"Civ. No. 4424\", \"first_page\": \"106\", \"last_page\": \"108\", \"citations\": \"130 Cal. App. 106\", \"volume\": \"130\", \"reporter\": \"California Appellate Reports\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T18:17:06.706889+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CHARLES A. MENNE, Appellant, v. P. J. FRIERMUTH COMPANY (a Corporation) et al., Respondents.\", \"head_matter\": \"[Civ. No. 4424.\\nThird Appellate District.\\nFebruary 27, 1933.]\\nCHARLES A. MENNE, Appellant, v. P. J. FRIERMUTH COMPANY (a Corporation) et al., Respondents.\\nB. M. Bainbridge, George A. Work and A. H. Carpenter for Appellant.\\nJ. B. Freeman and Gumpert & Mazzera for Respondents.\", \"word_count\": \"924\", \"char_count\": \"5262\", \"text\": \"PULLEN, P. J.\\nThis is an action brought to recover damages against the defendants for the malicious prosecution of plaintiff on a charge of petit theft, upon the trial of which a jury found the defendant not guilty. This action for damages for malicious prosecution was filed as a result thereof, and a jury rendered a verdict in favor of plaintiff in the sum of $2,500.\\nThereafter the defendants moved for a new trial on the grounds of insufficiency of evidence to support the verdict, excessive damages and errors of law occurring at the trial. The trial court granted a new trial and plaintiff is appealing from that order.\\nMr. Justice Van Fleet, in the case of Harrison v. Sutter Street Ry. Co., 116 Cal. 156 [47 Pac. 1019, 1020], so clearly expresses the power and scope of an appellate court on a motion for a new trial, that we quote the following:\\n\\\"That the granting of a new trial is a thing resting so largely in the discretion of the trial court that its action in that regard will not be disturbed except upon the disclosure of a manifest and unmistakable abuse has become axiomatic, and requires no citation of authority in its support. It is true that such discretion is not a right to the exertion of the mere personal or arbitrary will of the judge, but is a power governed by fixed rules of law, and to be reasonably exercised within those rules, to the accomplishment of justice. But so long as a ease made presents an instance showing a reasonable or even fairly debatable justification, under the law, for the action taken, such action will not be here set aside, even if, as a question of first impression, we might feel inclined to take a different view from that of the court below as to the propriety of its action. More especially is this true where, as here, the question rests largely in fact, and involves the proper deduction to be drawn from the evidence. The opportunities of the trial court, in such instances, for reaching just conclusions are, as a general thing, so superior to our own, that we will not presume to set our judgment against that of the former where there appears any reasonable room for difference. . . .\\n\\\"As to the suggestion that the evidence touching 'the amount of damages' was without conflict, we are not wholly certain that we appreciate exactly what counsel means. There was no evidence given as to the amount of the damages suffered. The damages sued for were in their nature unliquidated, and no witness pretended to fix the precise amount plaintiff should recover. . . .\\n\\\"But appellant urges that it is only where the verdict is so grossly disproportionate to any reasonable limit of compensation warranted by the facts, as to shock the sense of justice, and raise at once a strong presumption that it is based on prejudice or passion rather than sober judgment, that the judge is at liberty to interpose his judgment as against that of the jury; and that such an instance is not shown. The rule invoked is correct, as addressed to the function of the trial court, or when asking this court to set aside the verdict where it has been refused by the court below. But when we are asked to review the act of that court, where in the exercise of its discretionary power it has seen fit to set aside the verdict on this ground, a very different rule prevails. Every intendment is to be indulged here in support of the action of the court below, and, as elsewhere suggested, it will not be disturbed if the question of its propriety be open to debate.\\\"\\nRespondents, in justifying the new trial, point to errors of the court in ruling on the admissibility of evidence and contend also the evidence was insufficient to sustain the verdict against the corporate defendants or defendant George P. Friermuth, in that there was no evidence in the record to show by what authority, if any, defendant Greer acted in respect to the prosecution which formed the basis of the case at bar.\\nWe have read the transcript and agree with respondents that the evidence connecting the defendants other than Greer with the criminal prosecution is insufficient to justify a judgment as against them. We also believe the instructions of the court dealing with malice and probable cause under the rule as enunciated in Ball v. Rawles, 93 Cal. 222 [28 Pac. 937, 27 Am. St. Rep. 174], are sufficient to justify the trial court in the granting of a new trial.\\nThe trial judge having seen and heard the witnesses was authorized and required by law to weigh the sufficiency of the evidence to sustain the verdict. He may not have been impressed, as one must be who reads only the cold record, with the utter disregard of the rights of plaintiff evinced by defendant Greer, but he may also have doubted the sincerity of the testimony of opposing witnesses; it is not for us to speculate. We find no abuse in the exercise of the discretion vested in the trial court.\\nThe order granting a new trial is hereby affirmed.\\nPlummer, J., and Thompson, J., concurred.\"}"

cal/2230017.json

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+"{\"id\": \"2230017\", \"name\": \"THE PEOPLE, Plaintiff and Respondent, v. WAYNE ROBERT RICHARDS, Defendant and Appellant\", \"name_abbreviation\": \"People v. Richards\", \"decision_date\": \"1969-02-18\", \"docket_number\": \"Crim. No. 6955\", \"first_page\": \"768\", \"last_page\": \"778\", \"citations\": \"269 Cal. App. 2d 768\", \"volume\": \"269\", \"reporter\": \"California Appellate Reports, Second Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T02:01:01.578647+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PEOPLE, Plaintiff and Respondent, v. WAYNE ROBERT RICHARDS, Defendant and Appellant.\", \"head_matter\": \"[Crim. No. 6955.\\nFirst Dist., Div. One.\\nFeb. 18, 1969.]\\nTHE PEOPLE, Plaintiff and Respondent, v. WAYNE ROBERT RICHARDS, Defendant and Appellant.\\nWilfred Humphries, under appointment by the Court of Appeal, for Defendant and Appellant.\\nThomas C. Lynch, Attorney General, Robert R. Granucci and John F. Henning, Jr., Deputy Attorneys General, for Plaintiff and Respondent.\", \"word_count\": \"4687\", \"char_count\": \"27628\", \"text\": \"SIMS, J.\\nDefendant has appealed from a judgment of conviction rendered on jury verdicts which found him guilty of escape from a state prison without force or violence in violation of subdivision (b) of section 4530 of the Penal Code, and sane at the time of the commission of the offense. He contends that the trial court committed prejudicial error in refusing to receive evidence, embodied in an offer of proof, on a proposed defense of coercion and duress as justification for the offense charged, and in refusing to give proffered instructions on the same issue. These points are examined and found wanting. The judgment must be affirmed.\\nOn July 19, 1967, defendant was assigned to a farm crew as an inmate of the California Correctional Training Facility, Soledad, Monterey County. Sometime after 2:30 p.m. defendant left the work area without permission and hid in a corn field until dark. Defendant then proceeded to the main road, and caught a ride to King City. He was apprehended by the California Highway Patrol on July 20, 1967 at 2:30 a.m. at a service station in King City. Defendant was still in prison dress, and he made no attempt to resist arrest.\\nOn his return to the prison on July 20th, defendant was admonished as to his constitutional rights and questioned by a correctional officer as to his motive for escape. Defendant stated that he left prison without permission because '1 he felt he was doing too much time, that he was proceeding to Los Angeles to his mother's place to engage a lawyer to see if something eouldn't be done. ' '\\nThe prison records officer authenticated the 11 Summary of Sentence Data\\\" which indicated defendant's commitment and his movement in and through the state prison system. On cross-examination the defendant brought out, over objection, that while at a conservation center camp between November 10, 1966 and March 28, 1967 he had complained that there was pressure from other inmates to engage in homosexual activity. The court sustained an objection to a question propounded to determine if the records indicated whether or not the authorities at the center had checked into defendant's complaint. According to the summary, the complaints, coupled with a very poor camp record, resulted in defendant's retransfer to Soledad in March.\\nIn his opening statement the attorney for the defendant stated: \\\"Ladies and gentlemen of the jury, you heard what is called a prima facie case of escape. The law provides that in certain circumstances there are defenses to crimes. . . . The law as to the various defenses will be stated to you by the Court. I will not attempt to state it. But the defense we are raising is called duress. Coercion. And we are going to present a series of witnesses, including the defendant himself, and these witnesses and the defendant will tell you of the threats made to his life and the reason that he ran away in order to save his own life, at least in his own mind he was doing this. And this will be the nature of our defense. . . .' '\\nThe training officer in charge of defendant's work detail was called as a witness for the defendant. He testified that he had worked in the prison system for approximately 20 years and was familiar with the expressions used by prisoners around the prison; that \\\"a snitch\\\" was someone who tells on someone else; and that if one prisoner disclosed that another prisoner was forcing him to commit homosexual acts it would be considered one of the more serious, if not the most serious, form of snitching. An objection to the relevancy and materiality of the next question\\u2014\\\"What in your experience usually happens to inmates who snitch ? ' '\\u2014was sustained.\\nThe court, at the request of the defendant, thereupon heard argument outside the presence of the jury. In the course of this argument the defendant adverted to the provisions of subdivision Eight of section 26 of the Penal Code. He represented to the court that acts of sodomy had been inflicted on the defendant, that the defendant did snitch, that threats were made upon his life, that the guards would do nothing, and that defendant had exhausted every possible remedy short of escape to avoid the threat of death. The court adhered to the view that the threat, in order to be a justification, would have to be a threat designed to directly induce the act with which the defendant was charged. In response to the court's invitation to make an offer of proof, the defendant represented that inmate Joel Blume would testify \\\"that inmates told him to remain away from the defendant . . . because Wayne Richards was going . to be killed . so keep his distance away from him or he would be killed too.\\\" Defendant himself would testify that \\\"he was told by Mr. Blume who confided in him that he was marked to be killed or seriously injured and that the defendant understood this was going to be imminent, immediate, or as soon as possible and he felt that he had two possibilities, one to go to the guards, something that he's tried in the past and the guards have only responded by telling him to punch someone in the mouth or to commit probably a worse crime than escape, and, number two, to remove himself from the threat; and the only other way to remove himself from the threat is to remove himself from the imprisonment, the prison itself; and for this reason the defendant took the only alternative that he saw. ' '\\nThe court sustained the prosecution's objection to the testimony which had been offered. Thereupon, the defendant rested without presenting any further evidence.\\nThe instructions offered by the defendant included the following subjects: the effect of threats and menace as set forth in CALJIC Instruction No. 71-F (Revised) as found in 1967 Cumulative pocket considerations governing the determination of whether a danger should be considered as imminent and immediate, predicated on People v. Villegas (1938) 29 Cal.App.2d 658 [85 P.2d 480] (see infra); and an instruction on necessity as a defense. The court in fact instructed the jury, \\\"The reasons, if any, given for the alleged escape are immaterial and not to be considered by you as in any way justifying or excusing, if there was such. The only requirement for the commission of the crime of escape is that the defendant intentionally, wilfully, and unlawfully, departed from the limits of his custody.\\\" Since the defendant's offer of proof had been rejected, there was no evidence to show any legal justification, and the instructions were properly refused. (See People v. Bross (1966) 240 Cal.App.2d 157, 167-169 [49 Cal.Rptr. 402].) They are only material insofar as they highlight the respective contentions of the parties on the question of what type of coercion, compulsion or necessity may relieve a person of responsibility for what would otherwise be a criminal act.\\nIn the argument concerning the admission of evidence there was a failure to articulate the distinction between the compulsion or duress recognized in the code (see fns. 3, 5 and 6, supra), and the principle of necessity (fn. 7, supra) which recognizes a defense of justification because of the duress occasioned by extrinsic circumstances. This distinction has been generally recognized by text writers in the field of criminal law.\\nThe court properly rejected the evidence insofar as it was offered to show the defendant's lack of capacity to commit the offense under provisions of Penal Code section 26 (see fn. 3 supra). The statute, since it refers to the option to refuse or accept, contemplates that the threat or menace be accompanied by a direct or implied demand or request that the actor commit the criminal act. In this case there was no offer to show that anyone demanded or requested that the defendant escape. (Cf. People v. Wester (1965) 237 Cal.App.2d 232, 237-238 [46 Cal.Rptr. 699]; and see People v. Winkelspecht (1965) 237 Cal.App.2d 227, 229-230 [46 Cal.Rptr. 697]; People v. Otis (1959) 174 Cal.App.2d 119, 123-126 [344 P.2d 342]; and People v. Ganger (1950) 97 Cal.App.2d 11, 13 [217 P.2d 41].)\\nIn People v. Sanders (1927) 82 Cal.App. 778 [256 P. 251], the court approved an instruction reading as follows: \\\" '. . . a person who commits an act under threats or menaces sufficient to show that he had reasonable cause to believe and did believe that his life would be endangered if he refused, is incapable of committing a crime.\\n\\\" 'In order for duress or fear produced by threats or menace to be a valid, legal excuse for doing anything, which otherwise would be criminal, the act must have been done under such threats or menaces as show that the life of the person threatened or menaced was in danger, or that there was reasonable cause to believe and actual belief that there was such danger. The danger must not be one of future violence, but of present and immediate violence at the time of the commission of the forbidden act. The danger of death at some future time in the absence of danger of death at the time of the commission of the offense will not excuse. A person who aids and assists in the commission of the crime, or who commits a crime, is not relieved from criminality on account of fears excited by threats or menaces unless the danger be to life, nor unless that danger be present and immediate.' \\\" (82 Cal.App. at p. 785. Accord: People v. Villegas, supra, 29 Cal.App.2d 658, 661; and see Annotation, Criminal Law\\u2014Defense\\u2014Coercion (1955) 40 A.L.R.2d 908.) If the statutory test of capability were deemed to be applicable to the evidence contained in the offer of proof, it still falls short of establishing that there was a present and immediate danger to defendant's life on the afternoon he secreted himself and left the confines of the prison. (See People v. Otis, supra, 174 Cal.App.2d 119, 125-126.) It may further be noted that his subsequent testimony reflected that he was given alternative courses of action. The submission to sodomy, abhorrent as it may be, falls short of loss of life. The commission of that offense, in response to the threat to his life, accompanied by requests or directions to submit, would fall within the statutory pattern. (See People v. Anderson (1968) 264 Cal.App.2d 271, 274 [70 Cal.Rptr. 231].)\\nThere remains for consideration the question of whether the evidence offered by the defendant should have been received to show justification on the grounds of necessity. The principle has been phrased as follows: \\\"An act which would otherwise be a crime may be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him, or upon others whom he was bound to protect, inevitable and irreparable evil; that no more was done than was reasonably necessary for that purpose; and that the evil inflicted by it was not disproportionate to the evil avoided.\\\" (Clark & Marshall, Law of Crimes (6th ed., Wingersky, 1958) p. 322, quoting from Stephen, Digest of the Criminal Law, art. 32. See also American Law Institute, Model Penal Code (Proposed Official Draft 1962) \\u00a7 3.02.)\\nIn People v. Whipple (1929) 100 Cal.App. 261 [279 P. 1008], the court stated, \\\"In this state the common law is of no effect so far as the specifications of what acts or conduct shall constitute a crime is concerned . . . likewise with excuses or justifications\\u2014if no statutory excuse or justification apply as to the commission of the particular offense, neither the common law nor the so-called 'unwritten law' may legally supply it.\\\" (100 Cal.App. at p. 262. See also People v. Harris (1961) 191 Cal.App.2d 754, 757-758 [12 Cal.Rptr. 916].) The court noted \\\"if the facts were as stated by the defendant, he was subjected to brutal treatment of extreme atrocity.\\\" (Id. at p. 266.) The defendant contended that the brutal and inhumane treatment he received made his imprisonment intolerable and justified the escape. The court, nevertheless, upheld the action of the trial court \\\". . .in instructing the jury that an excuse for the escape of defendant, founded upon any alleged unsanitary conditions, or alleged harsh, brutal or inhumane treatment received by him at the hands of his custodian, would constitute no defense in the law for' the commission of the offense.\\\" (Id., p. 262.) From the foregoing it would appear that the principle of justification by necessity is not recognized under the law of this state, except as it is embodied in the Penal Code.\\nNevertheless in Whipple the court, as an alternative ground of decision, did recognize the existence of the principle, and found that it did not apply to the facts to which the defendant had testified. The opinion recites, \\\"Although authority exists to the effect that, generally speaking, absolute necessity will excuse the commission of a criminal offense [citations] ; so far as the crime of escaping from a jail is concerned, the authorities are in practical accord in holding that ordinary adverse circumstances will not present such a condition as will support a legal excuse for effecting an escape. In 1 Hale, P.C., 611 (1736), it is said that 'If a prison be fired by accident, and there be a necessity to break prison to save his life, this excuseth the felony. ' . . . But whatever may be the common law with reference to escape, where either ' se defenciendo/ misfortune, or 'first offense' is or may be invoked as a defense to the accusation for which imprisonment has resulted, so far as the decisions by the courts of sister states are concerned, neither the unsanitary condition of the jail [citation], fear of violence from third persons [citation], nor unmerited punishment at the hands of the custodian [citation], will present a situation which in the law may be accepted as an excuse for violation of the statute.\\\" (Id., pp. 263-264. See also People v. Miller (1961) 196 Cal.App.2d 171, 176 [16 Cal.Rptr. 408], Wharton's Criminal Law and Procedure (Anderson ed. 1957) \\u00a71378, p. 769; and Annotation, Justification for Escape (1960) 70 A.L.R.2d 1430.) The court concluded, 'It is manifest that to allow a prisoner to decide whether the conditions justify him in attempting to escape would be destructive of the necessary discipline which must be maintained in any well-ordered prison. . . . Generally speaking, when a man has been lawfully convicted of a crime, and a judgment of imprisonment has been regularly entered against him, it becomes his duty to submit to the penalty. Unquestionably, it is the duty of the state and of its officers to accord to the prisoner such safety and humane treatment as may be consistent with the safekeeping of the prisoner. It is, unfortunately, possible for the conditions of imprisonment to be so unwholesome as to seriously imperil the health and life of the prisoner by exposure to infection and disease, and unhappily it is possible for prison guards to subject prisoners to abuses and serious physical injury unjustified by any disciplinary need. However, a prisoner who escapes for any such reason does so at his peril.\\\" (100 Cal.App. at p. 265.)\\nDefendant seeks to avoid the effect of this controlling precedent on the theory that Whipple recognized that the improper treatment might constitute a justification for escape if the defendant had exhausted all other alternatives. The court did observe, \\\". . . the record fails to disclose any attempt on the part of defendant to show that before escaping, he had, in good faith or at all, endeavored to be relieved by lawful means from any alleged improper irregularities or practices which he claimed were present in the matter of his confinement.\\\" (Id., p. 265.) Nevertheless immediately thereafter the court acknowledged, \\\"In a remote mountain camp, far from the sheriff's office, what relief could he obtain by telling his custodian that he wanted to see the sheriff ? If the defense could be admitted at all, it should not be conditioned upon the making of a plainly useless request.\\\" (Id., p. 266.) It is, therefore, apparent that the court's decision would not have been altered had Whipple shown, as the defendant alleges here, that he had reported his complaints to the authorities and had been denied relief.\\nIn Whipple, and as well this case, the reviewing court was struck by the enormity of the pressure to which defendant was subjected if his allegations were true. The court observed, \\\". . . it is with very great reluctance that we admit that, under practically all of the authorities, the foregoing opinion states the established law. . . . The function of the court is to declare the law as it is, and we are not authorized to usurp the place of the legislature, which has the power to make laws, and the duty to make just laws.\\\" (Id., pp. 265-266.)\\nThe Legislature has in fact adopted many statutes regulating the treatment of prisoners. (See 2 Witkin, Cal. Crimes (1963) Punishment for Crime, \\u00a7917 and 918, pp. 870-872.) The courts of this state have extended the use of the writ of habeas corpus to protect the fundamental basic rights of prisoners. (In re Riddle (1962) 57 Cal.2d 848, 851 [22 Cal.Rptr. 472, 372 P.2d 304]; and see Witkin, op. cit., \\u00a7 918 and 919, pp. 872-875.) The principle of justification by necessity, if applicable, involves a determination that \\\"the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged.\\\" (See Model Pen. Code., op. cit., \\u00a73.02 (1) (a); and Clark and Marshall, Law of Crimes, supra.) The compulsion from the harm or evil which the actor seeks to avoid, should be present and impending, as in the case of the threat or menace contemplated by the Penal Code. This is not a case where the prisoner departed from the limits of his custody while pursued by those who would take his life because he \\\"snitched,\\\" or by those who sought by force and violence to have him submit to sodomy. Moreover, any and all alternative courses should be considered, and it must be determined that the threatened consequences could not otherwise be avoided. (See Clark and Marshall, Law of Crimes, supra.) The evil sought to be prevented is not only the escape of the prisoner in question, but also, as noted in Whipple, supra, the destruction of the general discipline of the prison.\\nThe balancing of all these factors leads to the conclusion that the principles set forth in Whipple should be adhered to and applied in this case. The prisoner should be denied self-help by escape, and should be relegated to relief through established administrative channels, or, that failing, through the courts. The trial court properly rejected defendant's offer of proof and the instructions which depended upon that evidence.\\nThe judgment is affirmed.\\nMolinari, P. J., and Elkington, J., concurred.\\nThe defendant filed his notice of appeal seven days prior to the pronouncement of judgment and sentence but after the jury had rendered its verdicts that the defendant was guilty and that he was sane at the time of the commission of the offense. The People do not question its timeliness. It may be treated as filed immediately after the rendition of judgment. (Cal. Rules of Court, rule 31(a); People v, Conover (1966) 243 Cal.App.2d 38, 40, fn. 1 [52 Cal.Rptr. 172].)\\nNo review has been sought of the propriety of the court's ruling on this question, which merely initiated the discussion which followed. In any event, it would appear that the defendant's, not the officer's, knowledge and experience would be the only relevant evidence on the defendant's motivation if it in fact were a proper issue. (See People v. Mathis (1965) 63 Cal.2d 416, 430 [46 Cal.Rptr. 785, 406 P.2d 65].)\\nSection 26 of the Penal Code provides in part: \\\"All persons are capable of committing crimes except those belonging to the following classes: . . . Bight\\u2014Persons (unless the mime be punishable.with death) who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused. ' '\\nAt the sanity trial inmate Blume testified, \\\"I was told that I had best stay away from him because there was a couple of knives waiting to be stuck in him and if I was around him at the time I would be stuck also.\\\" He further averred that he passed this information on to defendant three or four days prior to the time of the escape. The defendant testified that \\\"near to just prior'' to his escape he had been forced with violence to submit to homosexual acts at Soledad; that he had told on some inmates at the conservation center (who presumably had engaged in similar attacks) ; that he learned that word of his having done so had reached Soledad; that five inmates showed him a piece of steel like a knife and told him \\\"... you told on our friends up there. . . . Before this week is over we're going to [shank (stab) you] \\\"; that three nights later he was jumped from behind by two inmates who got him in position on a lawn and had him by the neck; that they told him he had a choice; that they said \\\"You snitched. You're dead\\\" but that he could avoid trouble by submitting to acts of sodomy; that on his refusal they said, \\\"You don't have any choice\\\" and \\\"We'll see you before the week is over, we'll see what you're going to be or not\\\"; that he reported his fears to a correctional lieutenant and was told to settle down and to find himself an old man to take care of him; that on the Sunday (July 16th, three days) prior to his escape on July 19th he reported his trouble to the chaplain and was advised to try to defend himself and fight his persecutors ; that he did not seek further psychiatric help because consultations at the camp with a nurse, a doctor, the head counselor and a psychologist had produced only advice to grow up and fight back; that he never voluntarily submitted to any homosexual acts or had any desire to engage in them; that he found them revolting; that he did not know how to fight and could not bring himself to fight; and that he thought the threats were serious, that he would be dead, and he just wanted to get away.\\nThis instruction read: \\\"A person is not guilty of crime when he commits an act or engages in conduct, otherwise criminal, when acting under threats and menaces under the following circumstances: 1. Where the threats and menaces are such that they would create in the mind of a reasonable person the fear that his life would be in imminent and immediate danger if he did not commit the act or engage in the conduct charged, and 2. If such person then believed that his life would be so endangered. This rule does not apply to threats, menaces, and fear of future danger to his life.\\\"\\nThis instruction read: \\\"Whether a danger should be considered an imminent and immediate danger as opposed to a future danger is a question of fact to be determined by you the jury. Whether a danger is imminent or immediate will depend on all the surrounding eireumstancs, including the defendant's ability to withdraw and avoid the danger.\\\"\\nThis instruction read: \\\"Necessity is a defense to criminal prosecution under certain circumstances. As a defense to escape from a penal institution the defense is neessarily limited to those eases where the remedy to the situation producing the necessity lies beyond the control of the prison authorities and personnel. For example, if a prison caught fire the inmates would probably not be guilty of the crime of escape if they fled to save themselves from the conflagration. On the other hand if an inmate escaped because he felt escape necessary to save himself from treatment at .the hands of the imprisoners [sic] authority then this would not be a valid defense, since by being imprisoned it is expected that an inmate should accept the policies, action, and treatment of the imprisoning authorities as part of his punishment. Tour task is to determine first, whether correction of the conditions producing the necessity was within or beyond the control of the imprisoning authorities. If correction of the conditions producing the necessity was beyond the control of the imprisoning authorities then necessity is no defense to any type of escape. If correction of the conditions producing the necessity was beyond the control of the imprisoning and [sic] authorities, as in the ease of a fire out of control then necessity may be a defense to an escape accomplished without force or violence. Whether the correction of conditions giving rise to a necessity was or was not within the control of the imprisoning authorities in this is a question of fact for you the jury to determine. ' '\\nWilliams, Criminal Law (2d ed. 1961) \\u00a7 229-239, pp. 722-746 and \\u00a7 242-247, pp. 751-762; Hall, General Principles of Criminal Law (2d ed. 1960) pp. 415-448 and see pp. 228-237; Clark & Marshall, Law of Crimes (6th ed. Wingersky, 1958) \\u00a7 5.15, pp. 322-325 and \\u00a7 5.16, pp. 325-329; 1 Wharton's Criminal Law and Procedure (Anderson ed. 1957) \\u00a7 123, pp. 261-267 and \\u00a7 171, pp. 403-405; Perkins, Criminal Law (1957) pp. 842-851; American Law Institute, Model Pen. Code (Proposed Official Draft 1962) \\u00a7 2.09, p. 40 and \\u00a7 3.02, p. 45; 22 C.J.S., Criminal Law, \\u00a7 44, p. 135 and \\u00a7 49, p. 185; 21 Am.Jur.2d, \\u00a7 99-100, pp. 179-180; 14 Cal.Jur.2d, Criminal Law, \\u00a7 217, p. 464, \\u00a7 219, p. 466, and \\u00a7 222, p. 468; 1 Witkin, Cal. Crimes (1963) \\u00a7 155-157, pp. 149-151, and \\u00a7 248, p. 232; but cf. 1 Burdick, Law of Crime. (1946) \\u00a7 198-201, pp. 260-264; and 1 Bishop's Criminal Law (9th ed. 1923) \\u00a7 347-355, pp. 242-250. See also Newman & Weitzer Duress, Dree Will and the Criminal Law (1957) 30 So.Cal.L.Rev. 313.\\nCases dealing with the question of whether a partner in a prohibited sexual act is an accomplice suggest that compulsion, short of that proscribed in Penal Code section 26, subdivision Bight, will render the coerced partner free of prosecution for the offense in which he participated. (See People v. Anderson (1968) 264 Cal.App.2d 271, 274-278 [70 Cal.Rptr. 231]; People v. Otis (1959) 174 Cal.App.2d 119, 123-125 [344 P.2d 342]; but cf. People v. Hart (1950) 98 Cal.App.2d 514, 515-516 [220 P.2d 595].)\\nAt the sanity trial further testimony was adduced from a psychiatrist that the defendant was a passive individual who has always had difficulty in expressing his masculinity and aggressive behaviour; and that he was likely to become anxious, threatened and impulsive when exposed to force and pressure. This evidence was not, as urged by defendant, competent on the issue of guilt. The crime of escape requires no specific mental state, only a general criminal intent. The only requisite for its commission is that defendant do the act which constitutes the crime. (People v. Goldman (1966) 245 Cal.App.2d 376, 383 [53 Cal.Rptr. 810] [disapproved on other grounds In re Smiley (1967) 66 Cal.2d 606, 627 [58 Cal.Rptr. 579, 427 P.2d 179]]; People v. Miller (1961) 196 Cal.App.2d 17], 175-176 [16 Cal.Rptr. 408]; People v. Haskins (1960) 177 Cal.App.2d 84, 87-88 [2 Cal.Rptr. 34].) There is no place for psychiatric evidence to show diminishea capacity (People v. Goldman, supra, at p. 383), or inability to resist an impulse (People v. Villegas (1938) 29 Cal.App.2d 658, 663 [85 P.2d 480]).\"}"

cal/2230173.json

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+"{\"id\": \"2230173\", \"name\": \"MAUREEN NEWTON, Appellant, v. LOS ANGELES TRANSIT LINES (a Corporation), Respondent\", \"name_abbreviation\": \"Newton v. Los Angeles Transit Lines\", \"decision_date\": \"1951-11-20\", \"docket_number\": \"Civ. No. 18473\", \"first_page\": \"624\", \"last_page\": \"626\", \"citations\": \"107 Cal. App. 2d 624\", \"volume\": \"107\", \"reporter\": \"California Appellate Reports, Second Series\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T21:04:17.850472+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MAUREEN NEWTON, Appellant, v. LOS ANGELES TRANSIT LINES (a Corporation), Respondent.\", \"head_matter\": \"[Civ. No. 18473.\\nSecond Dist., Div. Two.\\nNov. 20, 1951.]\\nMAUREEN NEWTON, Appellant, v. LOS ANGELES TRANSIT LINES (a Corporation), Respondent.\\nLicker & Wallace for Appellant.\\nRichard M. Gilliland and Robert C. Carlson for Respondent.\", \"word_count\": \"862\", \"char_count\": \"5193\", \"text\": \"McCOMB, J.\\nFrom a judgment in favor of defendant after trial before the court without a jury, in an action to recover damages for personal injuries, plaintiff appeals.\\nFacts: Plaintiff instituted the present action to recover for personal injuries arising out of an accident that occurred on one of defendant's streetcars on October 20, 1948.\\nThe complaint was filed November 16,1949. In an endeavor to avoid the bar of the statute of limitations, section 340, subdivision 3 of the Code of Civil Procedure, plaintiff alleged in substance that defendant's agent advised and assured plaintiff defendant was liable for the accident; that defendant would assume complete liability for the accident and reimburse plaintiff for all medical expenses, loss of income and other expenses in connection with the accident, and it would be unnecessary for plaintiff to consult an attorney; that defendant carried on negotiations for settlement with plaintiff until October 25, 1949, and plaintiff relied upon said representations and was lulled into a sense of security and therefore did not file an action sooner.\\nDefendant raised the affirmative defense that the cause of action was barred by the provisions of the Code of Civil Procedure above mentioned. After taking evidence the trial court sustained defendant's defense that the statute of limitations had run and made a finding accordingly.\\nQuestions: First: Was there substantial evidence to sustain the trial court's finding that the statute of limitations barred plaintiff's cause of action?\\nYes. There was a conflict in the evidence. Therefore we must presume the evidence most favorable to defendant (respondent) is true. In addition to other evidence Mr. Burgess, defendant's agent, testified (a) that his last communication with plaintiff relative to a settlement was May 26, 1949; (b) denied ever telling plaintiff defendant was liable for the accident; (c) denied telling plaintiff defendant would assume complete liability for the accident or reimburse her for special damages, pain and suffering; (d) denied telling plaintiff it would be unnecessary for her to consult an attorney. This was substantial evidence to sustain the trial court's finding that plaintiff did not rely on any statements of defendant's agent which lulled her into a sense of security and caused her to delay filing a complaint until after the statute of limitations had run.\\nSecond: Did the trial court commit prejudicial error in striking from the record certain testimony of Mr. Burgess?\\nNo. During the course of the examination of Mr. Burgess the following occurred:\\n'1 The Court : . Is there anything in the meantime that has refreshed your recollection overnight?\\n\\\"Mr. Waters: May I say something, if your Honor please?\\n\\\"The Court: After he answers my question.\\n\\\"A. Well, your Honor, I only know that if I did say such a thing it was only for the purpose of keeping her from going to an attorney until such time as we turned down her $500 demand. And I have never told any claimant not to go to an attorney at all.\\n\\\"The Court: That may all be stricken as not responsive to any question that I asked.\\\"\\nClearly the trial court's ruling was correct. The answer given by Mr. Burgess was not responsive to the question asked by the trial judge.\\nThird: Did the trial court commit prejudicial error in sustaining an objection to the following question asked plaintiff?\\n\\\"Q. What were your impressions in relation to what Mr. Burgess told you as to your dealings with the Los Angeles Transit Lines?\\\"\\nNo, for two reasons: (1) The question called for a conclusion of the witness. There is a general rule that witnesses must testify to facts and not to their opinions or conclusions (Clapp v. Churchill, 164 Cal. 741, 747 [130 P. 1061]; Parker v. Otis, 130 Cal. 322, 331 [62 P. 571, 927, 92 Am.St.Rep. 56]); (2) Where a question to which an objection is sustained does not itself indicate the answer to it will be favorable to the party seeking to introduce the testimony, before the ruling will be reviewed by an appellate court, an offer of what is proposed to be proven must first be made to the trial court so the reviewing court can determine whether the proposed evidence would have been material and beneficial to the party offering it. (Estate of Hunt, 33 Cal.App.2d 358, 360 et seq. [91 P.2d 609.) In the instant ease the question to which objection was sustained did not indicate the answer would be either material or beneficial to plaintiff nor was any offer of proof made.\\nAffirmed.\\nMoore, P. J., concurred.\\nSection 340, subdivision 3, Code of Civil Procedure reads:\\n\\\"An action for libel, slander, assault, battery, false imprisonment, seduction of a person below the age of legal consent, or for injury to or for the death of one caused by the wrongful act or neglect of another, or by a depositor against a bank for the payment of a forged or raised check, or a check that bears a forged or unauthorized indorsement; \\\"\"}"

cal/2236348.json

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+"{\"id\": \"2236348\", \"name\": \"JAMES MILLS ORCHARD COMPANY (a Corporation), Respondent, v. BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, Appellant\", \"name_abbreviation\": \"James Mills Orchard Co. v. Bank of America\", \"decision_date\": \"1934-03-10\", \"docket_number\": \"Civ. No. 4972\", \"first_page\": \"299\", \"last_page\": \"308\", \"citations\": \"137 Cal. App. 299\", \"volume\": \"137\", \"reporter\": \"California Appellate Reports\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T17:15:41.629363+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JAMES MILLS ORCHARD COMPANY (a Corporation), Respondent, v. BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, Appellant.\", \"head_matter\": \"[Civ. No. 4972.\\nThird Appellate District.\\nMarch 10, 1934.]\\nJAMES MILLS ORCHARD COMPANY (a Corporation), Respondent, v. BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, Appellant.\\nW. T. Belieu, C. H. White, Louis Ferrari and W. E. Johnson for Appellant.\\nGeorge R. Freeman for Respondent.\", \"word_count\": \"3014\", \"char_count\": \"17563\", \"text\": \"THOMPSON, J.\\nThe defendant has appealed from a judgment- of $4,148.79, which was rendered against it in a suit for conversion of money on deposit in its bank. The appellant contends the money was deposited to the credit of Kitrick & Hall, who were grain merchants and brokers, and that it was derived from the proceeds of the sale of barley previously sold and delivered to them by the plaintiff as evidenced by three negotiable warehouse receipts therefor, and that the bank lawfully applied the money to the payment of an existing debt of the brokers represented by their promissory note, pursuant to section 3054 of the Civil Code, without knowledge on its part of any defect of title thereto. It is asserted the finding to the effect that Kitrick & Hall were not the owners of the fund which was credited to the payment of their promissory note, with implied knowledge on the part of the bank of the lack of title thereto, is not supported by the evidence.\\nIn support of the judgment, the respondent declares that the warehouse receipts for the grain which was held in storage by the brokers were indorsed and delivered to Kit-rick & Hall in trust, for the sole purpose of enabling them to sell the grain as directed, and that the bank had knowledge of the brokers' lack of title thereto.\\nThe plaintiff is a corporation which owned 3,756 sacks of barley, aggregating 402,700 pounds, which were stored in the DePue warehouse of Kitrick & Hall at Orland, evidenced by three warehouse receipts therefor. Kitrick & Hall owned and operated several warehouses including the one where the grain was stored. They were depositors in the defendant's branch of the Bank of America at Oroville, where they had an open current account. They were also indebted to the defendant bank in the sum of $8,000 upon a promissory note due July 7, 1931, and secured by certain designated certificates of stock. About April 22, 1931, James Mills, Jr., vice-president of the plaintiff corporation, instructed W. S. Hall, of the firm of Kitrick & Hall, to sell the 3,756 sacks of barley. The following letter was sent to Mr. Hall, directing the sale of the barley for plaintiff:\\n\\\"James Mills Orchard Corporation \\\"Main Office\\n\\\"Hamilton City, California.\\n\\\"April 22, 1931.\\n\\\"Mr. W. S. Hall\\n\\\"Chico, California \\\"Dear Bill:\\n\\\"I have been trying to get you by phone .but the wind apparently does not permit. I have a hunch that we might\\nget a shower out of this condition today. Buyers in barley have been hounding me now for three days so the market is hot. Some intimated over $1.00. I believe you can get between $1.05 and $1.10. I will leave the price over a dollar entirely to your judgment, so will you make sale of our barley today or tomorrow, getting as much as you can warehouse receipt. The amounts in the different lots are as reported to you last week. Thanks.\\n\\\"I haven't made a definite check against warehouse, so sell approximate amounts, subject to our cheek. We won't be many sacks off one way or the other. I will have warehouse receipts brought up to date and deliver them to you when sale is consummated. Scott is cheeking now and will advise you definitely the number of sacks as soon as telephone conditions permit.\\n\\\"Tours sincerely,\\n\\\"Jas. Mills Jr.\\\"\\nPursuant to the foregoing directions, Mr. Hall promptly sold the barley to Kettenbach Grain Company of San Francisco for $1.05 per hundred pounds. It was agreed the usual commission of twenty-five cents per ton was to be charged by the brokers for the sale of the grain. The net amount which remained for the credit of plaintiff upon the sale of the barley was the sum of $4,148.79. Upon receipt of the foregoing authorization to sell the barley, Mr. Hall called the vice-president of the plaintiff corporation on the telephone and told him he had a sale for the barley at $1.05 per hundred pounds. The three warehouse receipts for the grain were thereupon indorsed \\\"James Mills Orchard Co., By B. H. Scott, Asst. Sect.\\\", and personally delivered to Mr. Hall with direction to sell the grain for $1.05 per hundred. The plaintiff instructed Mr. Scott to accept Kitrick & Hall's \\\"check for that (amount) in lieu of the passing the whole transaction through our name, simply as an acco7nmodation'>. Mr. Mills, Jr., testified the grain was not sold to the brokers. April 24, 1931, Kitrick & Hall, in compliance with the foregoing agreement, drew their check on the defendant bank, in favor of plaintiff for the sum of $4,148.79, which represented the full selling price of the barley, less agreed commissions. The cheek was presented to the defendant bank for payment April 28, 1931.\\nOn April 24, 1931, which is the date upon which Kitrick & Hall received the warehouse receipts from plaintiff, they drew a draft on Kettenbach Grain Company of San Francisco for $4,198.36, the purchase price of the grain. The three warehouse receipts were attached thereto, and forwarded to them through the defendant bank for collection. The following day this sum, together with other deposited amounts aggregating $5,729.91, was credited to the account of Kitrick & Hall in the bank of the defendant at Oroville. Two days later, on April 27th, W. S. Hall died. Notice of his death was conveyed to the defendant the same day. The return from the Kettenbach draft was actually paid to the defendant bank April 29th. This deposit gave Kit-rick & Hall's bank account a total credit of $6,601.96.\\nUpon notice of the death of Mr. Hall, the defendant bank began an investigation concerning the adequacy of the collateral securities which it held for the payment of the Kit-rick & Hall promissory note of $8,000. On April 28th the defendant bank charged against the account of Kitrick & Hall the entire balance to their current account, except the sum of $1.96, and credited the amount of $6,600 to the payment of their promissory note of $8,000. This transfer was made by the bank without notice to plaintiff of the defendant's claim of right to satisfy the banker's lien for the payment of the promissory note pursuant to the provisions of section 3054 of the Civil Code. The appellant claims this transfer of funds was made without knowledge on its part of any infirmity of title of Kitrick & Hall to the negotiable warehouse receipts, or that the plaintiff asserted title to the proceeds of the sale of the grain, and upon the contrary, that the grain was actually sold and delivered to the brokers.\\nMr. Stapleton, assistant cashier of the First National Bank of Oroville, testified that he presented to the defendant bank the Kitrick & Hall check of $4,148.79 in favor of the plaintiff, prior to 10 o'clock on April 28th. This was the same day the bank debited the account of Kitrick & Hall, and credited their promissory note with the sum of $6,600. Payment of this check was refused by the bank on the alleged ground of \\\"insufficiency of funds\\\", although there was then adequate funds with which to pay the cheek. It was admitted by Mr. Ashley, assistant manager of the defendant bank, that the account of Kitrick & Hall was not debited with the $6,600 item until the afternoon of April 28th. The account of Kitriek & Hall therefore possessed ample funds in the defendant's bank with which to pay the plaintiff's check of $4,148.79 at the time it was presented for payment. Mr. Humphrey, the manager of the defendant bank, was in Chico on the day this check was presented to his bank for payment, investigating the value of the securities which the bank held for the payment of the Kitriek.& Hall note. Mr. Humphrey then knew of the draft upon the Kettenbach Grain Company of San Francisco and of the warehouse receipts attached thereto, and of the presenting of the $4,148.79 check for payment by the plaintiff.\\nAt the trial, upon evidence of the foregoing facts, the court adopted findings to the effect that plaintiff was the owner of 3,756 sacks of barley which were stored in the DePue warehouse of Kitriek & Hall at Oroville, evidenced by the three negotiable warehouse receipts therefor; that the grain was consigned to the brokers as its agents, on April 23, 1931, for sale at $1.05 per hundredweight, with an agreement to pay twenty-five cents per ton as commission for negotiating the sale; that the warehouse receipts were indorsed by the owner and delivered to the brokers in trust for the sole purpose of enabling them to sell and deliver the grain as directed; that the grain was sold to Kettenbach Grain Company of San Francisco on April 24th at the agreed price of $1.05 per hundred pounds, and was paid for by Kitriek & Hall drawing and delivering to plaintiff their check for $4,148.79 on the last-mentioned date, and at the same time drawing a draft upon the San Franciso purchasers thereof for that amount plus commissions, to which \\u2022 draft the indorsed warehouse receipts were attached, and forwarded for collection through the defendant bank at Oroville, which then credited the Kitriek & Hall account in its bank with the full amount of the draft; that the grain was not sold to Kitriek & Hall, and that they had no title or interest therein except as commission brokers for the purpose of consummating the sale of grain as directed by the plaintiff; that at the time of transferring the amount of $6,600 from the account of Kitriek & Hall to the credit of their promissory note, which was held by its bank, the defendant \\\"had notice of the fact that neither said W. S. Hall nor Kitriek & Hall Warehouse Company, a corporation, was the owner of the grain represented by said warehouse receipts, and had notice that said warehouse receipts and the proceeds to be collected on said draft . . . was the property of the plaintiff herein, and had notice that said W. S. Hall was acting as an agent for plaintiff in the transaction for the sale of said barley\\\". The court thereupon rendered judgment against the defendant for conversion in the amount of $4,148.79. Prom this judgment an appeal was perfected.\\nThe evidence heretofore recited is adequate to support the finding that plaintiff is the owner of the proceeds of sale of barley which belonged to it, amounting to the sum of $4,148.79, which was deposited in defendant's bank to the credit of the account of Kitrick & Hall.\\nWe are of the opinion there is sufficient evidence in the record to show that the defendant had actual notice of the fact that the money which was deposited to the credit of Kitrick & Hall on April 25th, to the extent of the amount of their check of $4,148.79, for the sale of the grain, belonged to the plaintiff, and that the defendant's appropriation of that amount to the payment of the $8,000 note of Kitrick & Hall amounted to a wrongful conversion thereof.\\nThe respondent contends that it is unnecessary to show that, the bank had actual knowledge of the defect of Kitrick & Hall's title, and upon the contrary that all that is required is proof of \\\"circumstances sufficient to put a prudent man upon inquiry\\\" regarding that matter. (Sec. 19, Civ. Code; Keeney v. Bank of Italy, 33 Cal. App. 515 [165 Pac. 735] ; Lady Washington Cons. Co. v. Wood, 113 Cal. 482 [45 Pac. 809] ; 20 Cal. Jur. 234, sec. 4.) Since the draft upon Kettcnbach Grain Company for the purchase price of the barley was accompained by the negotiable warehouse receipts indorsed by the plaintiff, we assume that the law required proof of either actual knowledge of the defect of title of the negotiable instruments or proof of circumstances amounting to bad faith on the part of the defendant in appropriating the funds to the payment of its note of Kitrick & Hall. (Sec. 3137,.Civ. Code; Robb v. Cardoza, 110 Cal. App. 116, 122 [293 Pac. 851] ; Goodale v. Thorn, 199 Cal. 307, 314 [249 Pac. 11].) Section 3137, supra, provides: \\\"To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.\\\"\\nThe following circumstances which are disclosed by the record or reasonably inferred therefrom afford adequate support of the findings and judgment to the effect that the defendant possessed actual knowledge of the fact that the proceeds of sale of the grain, to the extent of $4,148.79, belonged to plaintiff, to wit: The defendant knew that Kitrick & Hall were commission brokers engaged in selling grain for commissions; they knew the 3,756 sacks of barley formerly belonged to plaintiff and were stored in the warehouse of Kitrick & Hall, as the warehouse receipts clearly showed; they knew that the draft upon Kettenbach Grain Company of San Francisco was for the purchase price of this grain as shown by the attached warehouse receipts; they knew that the drawing of the draft for the purchase price of the grain with the attached warehouse receipts, and the delivery of the Kitrick & Hall check of $4,148.79, bearing the same date of April 24th, were a part of the same transaction; the check was presented to the bank for payment before the draft was honored and before the payment thereof was returned to the bank; there were ample funds in the bank to the credit of Kitrick & Hall at the time the defendant refused to pay the plaintiff's check upon the alleged ground of 'insufficient funds\\\"; the bank must have known Kitrick & Hall were not the purchasers of the grain, for at the time their check of $4,148.79 was drawn in favor of plaintiff, they had to their credit in the bank only the sum of $2,273.86. Not until after the death of Mr. Hall did the defendant exercise itself to apply the fund to the payment of the $8,000 note. These, and other circumstances disclosed by the record, would seem to be sufficient to charge the defendant with knowledge of the fact that the grain belonged to plaintiff, and that the warehouse receipts conveyed no title to Kitrick & Hall, but upon the contrary were attached to the draft by them as brokers and deposited in the bank for collection against the purchasers of the barley.\\nIt does not appear that the collateral security for the payment of the $8,000 note which is held by the defendant is insufficient with which to satisfy that obligation. It would be a grave injustice to permit the arbitrary conversion of plaintiff's money to the payment of the brokers' note under the circumstances of this case. We are of the opinion there is sufficient evidence\\\" to charge the defendant with knowledge of the transaction including the fact that Kitrick & Hall were not the actual owners or holders of the warehouse receipts.\\nFor the foregoing reasons it follows that the defendant did not become the holder of the warehouse reseipts in due course of business, under the provisions of section 3133 of the Civil Code, for the reason that it had notice of the infirmity of the title thereto.\\nNor is the plaintiff estopped from asserting title to the proceeds of the sale of its grain merely because it indorsed the warehouse receipts and placed them in the hands of its agents to enable them to negotiate the sale, since the bank was in possession of facts which charge it with knowledge of the fact that plaintiff was the real owner thereof.\\nThe admission of evidence of an oral agreement between the plaintiff and its agents Kitrick & Hall of the mere consignment of the grain for the purpose of sale is harmless, since the same facts are adequately supplied by the subsequent letter of instructions which was properly admitted in evidence and therefore becomes cumulative.\\nThe judgment is affirmed.\\nPlummer, J., and Pullen, P. J., concurred.\\nA petition for a rehearing of this cause was denied by the District Court of Appeal on April 9, 1934, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court, of Appeal, was denied by the Supreme Court on May 7, 1934, and the following opinion then rendered thereon:\\nTHE COURT.\\nThe petition to have this cause heard and determined by this court after judgment in the District Court of Appeal of the Third Appellate District, was denied on May 7, 1934. In that connection it should be said:\\nThe statement in the opinion of the District Court of Appeal \\\"that it does not appear that the collateral security for the payment of the $8,000.00 note which was held by the defendant is insufficient with which to satisfy that- obligation\\\" was unnecessary for the decision and should be disre garded. The finding of the trial court, approved by the decision, that \\\"prior to and at the time of debiting said account (of Kitriclc and Hall Warehouse- Company) and thereafter, the defendant had notice of the fact that neither said W. S. Hall nor Kitrick & Hall Warehouse Company, a corporation was the owner of the grain represented by said warehouse receipts and had notice that said warehouse receipts and the proceeds to he collected on said draft, . . . was the property of the plaintiff . . . and had notice that said W. S. Hall was acting as an agent for plaintiff in the transaction for the sale of said barley\\\", leaves the case in harmony with the decision of this court .in Arnold v. San Ramon Valley Bank, 184 Cal. 632 [194 Pac. 1012, 13 A. L. R. 320], and other cases to like effect.\"}"