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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.\\\"\"}"
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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].)\"}"
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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.\"}"
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diff --git a/cal/12127512.json b/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'.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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diff --git a/cal/1990041.json b/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.\\\"\"}"
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+"{\"id\": \"1995115\", \"name\": \"THE PEOPLE, Plaintiff and Respondent, v. LAVERNE JOHNSON, Defendant and Appellant\", \"name_abbreviation\": \"People v. Johnson\", \"decision_date\": \"1993-10-18\", \"docket_number\": \"No. S005232\", \"first_page\": \"1\", \"last_page\": \"61\", \"citations\": \"6 Cal. 4th 1\", \"volume\": \"6\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T00:48:13.889600+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PEOPLE, Plaintiff and Respondent, v. LAVERNE JOHNSON, Defendant and Appellant.\", \"head_matter\": \"[No. S005232.\\nOct. 18, 1993.]\\nTHE PEOPLE, Plaintiff and Respondent, v. LAVERNE JOHNSON, Defendant and Appellant.\\nCounsel\\nBarry L. Morris, under appointment by the Supreme Court, for Defendant and Appellant.\\nDaniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Laurence K. Sullivan, Dane R. Gillette, Ronald S. Matthias, David Lew and Joan Killeen, Deputy Attorneys General, for Plaintiff and Respondent.\", \"word_count\": \"20142\", \"char_count\": \"126805\", \"text\": \"Opinion\\nLUCAS, C. J.\\nI.\\nIntroduction\\nBy information filed in San Mateo County Superior Court, defendant L\\u00e1veme Johnson was charged with two counts of murder (Pen. Code, \\u00a7 187; all further statutory references are to this code unless otherwise indicated), and one count of arson of an inhabited dwelling (\\u00a7451, subd. (b)). The information alleged the murders constituted a special circumstance of multiple murder (\\u00a7 190.2, subd. (a)(3)).\\nThe jury found defendant guilty on all three counts, finding true the special circumstance allegation. The jury subsequently returned a death verdict, and the trial court sentenced defendant to death. This appeal is automatic. (\\u00a7 1239, subd. (b).) We note that on April 15, 1993, defendant filed a habeas corpus petition with this court. We denied the petition on September 15, without issuing an order to show cause.\\nAs will appear, we reject defendant's claims of prejudicial error and affirm the judgment in its entirety.\\nII.\\nFacts\\nOn January 15, 1986, police officers and firefighters were summoned to a house fire in Daly City. Inside the house, the officers found the bodies of Maria Victoria Holmes, aged 52, and her daughter, Luisa Anna Castro, 32. The evidence indicated that two fires (one upstairs, and one downstairs) had been intentionally set, probably through the use of some flammable liquid. Victim Holmes evidently had been severely beaten and kicked. Her body showed extensive contusions and abrasions; her face was swollen and bloody. An autopsy indicated she died from 12 or more blows to her head and face. Victim Castro's body was burned beyond recognition; a large knife was found nearby. An autopsy determined, however, that she had died from strangulation; a wire was found wrapped tightly around her neck.\\nFurther investigation revealed the following facts: Victim Holmes was a hotel manager who wore expensive jewelry and possessed an extensive collection of gold jewelry from Central America. She shared her home with her daughter, victim Castro, a nightclub security guard, who was currently dating defendant, a customer of the club. Castro also had a collection of gold jewelry and frequently boasted of it. On the night of the murders, Castro had prepared dinner for defendant at her home after they had driven her children to a babysitter. Later that evening, someone murdered the two women, stole their jewelry, and set fire to their home in an apparent attempt to cover up the crimes.\\nDefendant was arrested after a girlfriend, Roshaun Fuller, told police that he had admitted assaulting the women and taking their jewelry. According to Fuller, defendant stated he \\\"knocked out\\\" Castro and, when victim Holmes came upstairs to investigate, he knocked her down and kicked her in the head. Defendant had been seen wearing, and later pawning, some gold jewelry, although it could not positively be traced to the victims. Defendant also admitted to the investigating officers some facts regarding his relationship with Castro, including sharing dinner with her at her home on or about the night of the murders. According to defendant, he left the house after Castro had become intoxicated and fallen asleep. Although defendant denied killing the women, at one point he told the interrogating officer that, \\\"I probably did do it, but you are not going to get me to say I did do it.\\\"\\nThe defense offered an alibi (defendant was seen engaging in a bar fight on the day in question) and evidence to cast doubts on Fuller's testimony, which was frequently contradictory and inconsistent. According to a defense investigator, Fuller admitted lying to police regarding defendant's admission that he assaulted both women.\\nAt the penalty phase, the People admitted evidence of defendant's prior crimes, including four prior felony convictions for robbery, burglary, disorderly conduct (transmitting a false alarm), and theft, and numerous unadjudicated offenses including rapes, oral copulation, robberies, batteries and assaults.\\nThe defense relied primarily on background and character evidence, including testimony regarding defendant's troubled childhood, his lack of parental guidance, and the likelihood he would succeed in a supervised prison setting. Defendant personally testified regarding some of the foregoing matters, and attempted to mitigate some of the \\\"prior crimes\\\" evidence by explaining the extenuating circumstances surrounding them.\\nA defense psychologist, Dr. Fricke, testified regarding defendant's sociopathic personality. On rebuttal, a prosecution psychiatrist stressed defendant's antisocial and manipulative personality, and his potential dangerousness.\\nIII.\\nGuilt Phase Contentions\\nA. Discharge of Juror Solano\\nDefendant first contends the court erred in discharging Juror William Solano after trial had commenced. In a related contention, defendant asserts he was wrongfully excluded from the in camera hearing held to determine whether Solano should be excused. We conclude neither contention has merit.\\nNear the close of the prosecution's case-in-chief, the court called for an in-chambers conference and revealed the following facts and observations: Juror Solano did not appear to be paying attention to the witnesses; instead, he was either watching the judge or defendant, or was \\\"doodling\\\" in his notebook. Solano \\\"consistently smiled\\\" at defendant, \\\"to the extent that the teeth are showing.\\\" On many occasions, defendant smiled or nodded back at Solano. In addition, the court noted that Solano had been late in arriving at the courtroom at least three times, and that he tended to close his eyes and possibly \\\"nod off\\\" during court proceedings. The court further indicated that police records revealed Solano had been arrested for possessing narcotics, contrary to his jury questionnaire response that his only arrest was \\\"for being out late while under age.\\\"\\nThe court questioned the two courtroom deputies, who confirmed that Solano appeared to be paying no attention to the proceedings. Deputy Kutch read from his logbook, which indicated Solano had \\\"nodded off\\\" three times, had doodled for fifteen minutes on one occasion, and had nodded or smiled at defendant seven times during the trial. Deputy Steiner confirmed that Solano had closed his eyes for a short time on several occasions, and had frequently smiled at or greeted defendant before lunch breaks.\\nThe prosecutor asked that Solano be examined regarding his fitness to remain on the jury. The prosecutor observed that on one occasion he noticed that Solano's eyes were closed and his chin was resting on his chest. As Solano began to fall forward, he opened his eyes in a startled manner.\\nDefense counsel objected to the hearing, noting that several other jurors had also either closed their eyes during testimony or smiled at defendant. Counsel also requested that defendant be present at any further hearing on Solano's status as a juror. The court denied this request on the basis that the hearing was not part of the trial, did not involve defendant's guilt, and bore no reasonable relation to defendant's opportunity to defend himself. Additionally, according to the court, defendant's presence might intimidate Solano and make it more difficult to extract accurate responses from him.\\nDefense counsel indicated that, in order to avoid alienating Solano, he too would not attend the hearing. The prosecutor likewise elected not to attend. The court thereupon questioned Solano in his chambers on a variety of subjects. When asked about his response to the questionnaire inquiry regarding prior arrests, Solano acknowledged he had been arrested when cocaine had been discovered nearby, and had also been arrested for public intoxication. When asked why he had failed to reveal that information, he replied that \\\"I was just trying to get through with this questionnaire as soon as possible. It just didn't seem that important to me.\\\"\\nSolano also acknowledged he had closed his eyes occasionally during trial, and had nodded or smiled at defendant from time to time. According to Solano, these gestures and smiles were \\\"just a reaction [to] someone smiling at me . . . .1 smile back.\\\"\\nThe court ruled that Solano should be excused because of his concealment of his prior arrests, and because of his sleeping during the course of the trial. The court replaced Solano with one of the alternate jurors, Samuel Ybarra.\\n1. Defendant's absence from hearing\\nBefore examining the propriety of discharging Solano, we must determine whether the court erred in refusing to allow defendant personally to attend the in-chambers hearing regarding possible discharge of the juror.\\nThe defendant has a constitutional (Cal. Const., art. I, \\u00a7 15) and statutory (\\u00a7\\u00a7 977, subd. (b), 1043, subd. (a)) right to be personally present at his trial. (See also United States v. Gagnon (1985) 470 U.S. 522, 526 [84 L.Ed.2d 486, 490, 105 S.Ct. 1482], and cases cited [defendant has federal due process right to attend court proceedings if his presence has a reasonably substantial relation to his ability to defend himself].)\\nUnder section 977, subdivision (b), the defendant \\\"shall\\\" be present at certain proceedings (arraignment, plea, preliminary examination, sentencing, and \\\"those portions of the trial when evidence is taken before the trier of fact\\\"), and \\\"shall\\\" also attend \\\"all other proceedings,\\\" unless he or she files a written waiver of the right to be present at such proceedings.\\nAlthough the broad language of the foregoing section appears to grant the defendant an unqualified right to attend all in-chambers conferences, we have held that the defendant's absence from various court proceedings, \\\"even without waiver, may be declared nonprejudicial in situations where his presence does not bear a 'reasonably substantial relation to the fullness of his opportunity to defend against the charge.' \\\" (People v. Garrison (1989) 47 Cal.3d 746, 782 [254 Cal.Rptr. 257, 765 P.2d 419], quoting from People v. Bloyd (1987) 43 Cal.3d 333, 359-360 [233 Cal.Rptr. 368, 729 P.2d 802], italics added; see also People v. Hardy (1992) 2 Cal.4th 86, 177-178 [5 Cal.Rptr.2d 796, 825 P.2d 781] [absence from portion of voir dire and some in-chambers discussions]; People v. Wharton (1991) 53 Cal.3d 522, 602-603 [280 Cal.Rptr. 631, 809 P.2d 290] [absence from various in-chambers proceedings]; People v. Medina (1990) 51 Cal.3d 870, 902-903 [274 Cal.Rptr. 849, 799 P.2d 1282] [absence from in-chambers conferences and in-court reading of testimony]; People v. Douglas (1990) 50 Cal.3d 468, 517-518 [268 Cal.Rptr. 126, 788 P.2d 640] [absence from reading of testimony]; People v. Lang (1989) 49 Cal.3d 991, 1025-1028 [264 Cal.Rptr. 386, 782 P.2d 627] [absence from jury view of murder scene, from conference regarding jury request for clarification, and from reading of testimony]; People v. Bittaker (1989) 48 Cal.3d 1046, 1079-1080 [259 Cal.Rptr. 630, 774 P.2d 659] [absence from various hearings and conferences]; People v. Robertson (1989) 48 Cal.3d 18, 59-62 [255 Cal.Rptr. 631, 767 P.2d 1109] [absence from penalty-reduction hearing and sentencing]; People v. Hovey (1988) 44 Cal.3d 543, 585-586 [244 Cal.Rptr. 121, 749 P.2d 776] [absence from reading of testimony].)\\nWe initially reject defendant's assertion that the Solano hearing was one involving the presentation of evidence to \\\"the trier of fact\\\" within the meaning of section 977, subdivision (b), thereby compelling his presence under the terms of that section. It seems clear the foregoing \\\"evidence presentation\\\" provision has no application to in-chambers hearings on collateral matters held outside the jury's presence.\\nAccordingly, under the foregoing cases, in determining whether defendant was prejudiced by being excluded from the Solano hearing, we must inquire whether defendant's presence bore a \\\"reasonably substantial relation to the fullness of his opportunity to defend against the charges\\\" against him. Defendant fails to explain in what manner his presence at the in-chambers hearing could have enhanced his opportunity to defend against the charges. He suggests that had he been allowed to attend the hearing at issue, he might have helped his counsel in questioning Juror Solano. The point seems unduly speculative, especially in light of defense counsel's own decision, previously discussed, to absent himself from the hearing rather than risk alienating the juror. (See Medina, supra, 51 Cal.3d at p. 903; Hovey, supra, 44 Cal.3d at p. 585.)\\nIn situations similar to the present case, although occurring prior to the enactment of section 977, subdivision (b), we have indicated that the defendant would have no right to attend such hearings. (In re Lessard (1965) 62 Cal.2d 497, 506 [42 Cal.Rptr. 583, 399 P.2d 39] [absence from private conference with juror asking to be excused]; People v. Abbott (1956) 47 Cal.2d 362, 372 [303 P.2d 730] [absence from hearing regarding juror's qualifications]; see also United States v. Gagnon, supra, 470 U.S. at p. 527 [84 L.Ed.2d at pp. 490-491] [absence from hearing to determine juror's impartiality].)\\nDefendant relies on various federal and sister-state cases which indicate a criminal defendant has a right to attend in-chambers conferences regarding a juror's impartiality, qualifications or possible misconduct. (E.g., Walker v. Lockhart (8th Cir. 1988) 852 F.2d 379, 381-382; United States v. Gay (9th Cir. 1975) 522 F.2d 429, 435; People v. Medcoff( 1955) 344 Mich. 108 [73 N.W.2d 537, 543].) Respondent cites other cases which find no prejudicial error in excluding the defendant from such conferences. (E.g., U.S. v. Patterson (9th Cir. 1987) 819 F.2d 1495,1507, and cases cited; United States v. Lustig (9th Cir. 1977) 555 F.2d 737, 745-746 [46 A.L.R.Fed. 714], cert, den. (1978) 434 U.S. 1045 [54 L.Ed.2d 795, 98 S.Ct. 889].).\\nAs respondent observes, many of defendant's cited cases preceded the decision of the United States Supreme Court in United States v. Gagnon, supra, 470 U.S. at pages 526-527 [84 L.Ed.2d at pages 490-491], wherein the high court made it clear that due process principles do not entitle the defendant to appear at every encounter between judge and jurors. As Gagnon explains, the central inquiry in such situations is whether the defendant's presence at the hearing reasonably could have assisted his defense of the charges against him. (Ibid.)\\nAs we have discussed, defendant fails to convince us that his presence could have assisted his defense in any way. Thus, we conclude that, although defendant may have had a statutory right to attend the Solano hearing, his exclusion therefrom did not amount to prejudicial error because it is unlikely his presence would have enhanced his opportunity to defend against the charges. Moreover, several cases have observed that if, as a result of the hearing in question, the affected juror is discharged and an alternate juror is picked to replace him, prejudice to the defendant will not be presumed. (See United States v. Lustig, supra, 555 F.2d 737, 746; People v. Dell (1991) 232 Cal.App.3d 248, 256-257 [283 Cal.Rptr. 3610] [court excused sick jurors without hearing]; Peckham v. State (Alaska Ct.App. 1986) 723 P.2d 638, 640 [defendant excluded from inquiry into juror misconduct].)\\nAs stated in People v. Dell, supra, \\\"appellant does not claim she was actually prejudiced from the substitution of jurors nor does it appear she could reasonably make such an argument. Alternates are selected from the same source, in the same manner, with the same qualifications and are subject to the same challenges. Alternates have an equal opportunity to observe the entire proceedings and take the same oath as regular jurors. [Citation.] In this case, appellant had ample opportunity to voir dire the alternates and use her allotted peremptory challenges. [Citation.] Nor is there any allegation the alternates were either incompetent or biased.\\\" (232 Cal.App.3d at pp. 256-257.)\\nThe foregoing authorities seem apposite here. Accordingly, we conclude that no prejudicial error occurred by reason of defendant's exclusion from the Solano hearing.\\n2. Defense counsel's absence from hearing\\nDefendant next contends that his counsel's absence from the Solano hearing deprived him of the right to counsel at a critical stage of the proceedings. The contention lacks merit.\\nAs previously discussed, defense counsel made a tactical decision not to attend the hearing. Counsel indicated he wished to avoid alienating Solano should he remain a juror in the case. Although defendant argues that such a decision required his personal consent, our decisions indicate that trial counsel has discretion to make \\\"an informed decision as to the necessity of attending\\\" in-chambers proceedings. (People v. Medina, supra, 51 Cal. 3d at p. 904 [counsel absent from reading of testimony to jury]; see also People v. Jackson (1980) 28 Cal.3d 264, 314 315 [168 Cal.Rptr. 603, 618 P.2d 149] [counsel authorized to make tactical decisions and control court proceedings without first obtaining personal waiver from defendant].) Defendant's suggestion that counsel's decision to forgo the hearing reflected his incompetence cannot be sustained in light of the reasonable tactical consideration which, according to counsel, induced that decision.\\nAccordingly, we need not reach the question whether a defendant has a constitutional right to his\\\" counsel's presence at conferences called for the purpose of determining whether particular jurors should be discharged and alternates selected. We note, however, that one recent case has held that \\\"there is no constitutional violation when alternate jurors are substituted in the absence of counsel.\\\" (People v. Dell, supra, 232 Cal.App.3d at p. 257; see also In re Mendes (1979) 23 Cal.3d 847, 852 [153 Cal.Rptr. 831, 592 P.2d 318].)\\n3. Solano was properly discharged\\nDefendant next contends the court erred in discharging Juror Solano. As previously noted, the court discharged Solano for two reasons, namely, (1) his sleeping during the trial, and (2) his untruthful or incomplete responses to the jury questionnaire.\\nDefendant contends there was no evidence that Solano was actually sleeping. He cites cases indicating that jury verdicts will not be overturned in the absence of \\\"convincing proof\\\" that a juror actually slept during trial. (E.g., Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 411 [185 Cal.Rptr. 654, 650 P.2d 1171].) Defendant observes that the court failed to inquire of Solano whether in fact he had fallen asleep, or had missed any testimony. (See People v. Roselle (1912) 20 Cal.App. 420, 424 [129 P. 477].)\\nThe present case does not involve a claim of juror misconduct sufficient to overturn a verdict. Instead, we must determine whether the trial court abused its discretion in discharging one juror and substituting an alternate. Under section 1089, the court, upon \\\"good cause shown,\\\" may discharge any juror \\\"found to be unable to perform his duty\\\" at any time during the trial. (See also Code Civ. Proc., \\u00a7 233.) The determination of \\\"good cause\\\" rests in the sound discretion of the court (People v. Abbott, supra, 47 Cal.2d at p. 371; People v. Dell, supra, 232 Cal.App.3d at p. 256), and the court's finding thereof will be upheld if substantial evidence supports it (People v. Burgener (1986) 41 Cal.3d 505, 520 [224 Cal.Rptr. 112, 714 P.2d 1251]). We have also stated, however, that a juror's inability to perform as a juror must \\\"appear in the record as a demonstrable reality.\\\" (People v. Compton (1971) 6 Cal.3d 55, 60 [98 Cal.Rptr. 217, 490 P.2d 537], fn. omitted.)\\nHere, there was ample evidence indicating that on one or more occasions Solano had actually fallen asleep during trial. The court, its two deputies, and the prosecutor each stated on the record that they had observed defendant exhibiting various physical indicia of sleep, including eye closures, head nodding, and slumping in his chair.\\nAs for Solano's incomplete questionnaire responses, the court found he had failed to disclose two prior arrests. Concealment of prior criminal charges constitutes good cause for discharge of a juror under section 1089. (See People v. Price (1991) 1 Cal.4th 324, 399-401 [3 Cal.Rptr.2d 106, 821 P.2d 610] [concealment of prior conviction and dismissed assault charge]; People v. Farris (1977) 66 Cal.App.3d 376, 386-387 [136 Cal.Rptr. 45] [concealment of misdemeanor prosecution and arrest record].) Defendant argues Solano's prior arrests were in legal effect mere detentions, because no accusatory pleadings were ever filed. (See \\u00a7 849.5.) Assuming Solano was entitled to rely on this provision in completing his questionnaire (see McMahon v. Municipal Court (1970) 6 Cal.App.3d 194, 200 [85 Cal.Rptr. 782]), he could not simply ignore these incidents for he was also asked if he had ever been \\\"accused\\\" of a crime. His \\\"no\\\" response was incomplete and misleading. In any event, as we have discussed, the court's ruling excusing Solano can be sustained solely on the basis of its finding that Solano had fallen asleep during trial.\\nIn a related contention, defendant suggests he was denied due process by the discharge of Juror Solano without a showing of \\\"legal necessity.\\\" He suggests he had a constitutional right to be tried by the first jury impaneled to try his case. None of the cases cited by defendant in support of this argument indicates that due process principles would forbid substitution of an alternate juror under the circumstances presented here. (See, e.g., U.S. v. Bates (9th Cir. 1990) 917 F.2d 388, 392.)\\nDefendant also argues he was denied due process by the trial court's \\\"ex parte\\\" manner of investigating Juror Solano's suitability as a juror. In defendant's view, the court \\\"abandoned its role as a neutral arbiter\\\" by secretly observing Solano, recording his conduct, and examining his questionnaire responses and arrest record, before announcing to the parties the court's doubts as to his suitability.\\nDefendant cites no cases suggesting the trial court, in the course of investigating whether good cause exists to replace a juror suspected of misconduct or inattentiveness, must reveal its concerns to the defendant or his counsel before conducting further investigation. It is doubtful that such a limitation on the court's discretion under section 1089 is necessary to protect any of the defendant's legitimate interests. (See People v. Keenan (1988) 46 Cal.3d 478, 533 [250 Cal.Rptr. 550, 758 P.2d 1081] [recognizing court's power to conduct \\\"discreet and properly limited investigation\\\" of possible jury misconduct], 539 [recognizing court's \\\"broad discretion as to the mode of investigation\\\"].)\\nWe conclude the court properly discharged Juror Solano.\\nB. Substitution of Juror Ybarra\\nAlternate Juror Samuel Ybarra was chosen to replace Juror Solano. Although defendant had not previously objected to the selection of Ybarra as an alternate, nonetheless, once he was substituted as a juror to replace Solano, defense counsel moved for a mistrial. Counsel represented that Ybarra was unacceptable to defendant and would have been challenged earlier had defendant been allowed to exercise another peremptory challenge. (The court had allowed both sides only one challenge \\\"per seat\\\" for the four alternate jurors, and defendant had previously used his challenge for the seat ultimately given to Ybarra.) The motion was denied.\\nDefendant now argues he should have been given \\\"a number of peremptory challenges equal to the number of alternates selected and unencumbered by any restriction to any particular seat.\\\" The objection to the court's allocation of peremptory challenges comes too late. Objections to the jury selection process must be made when the selection occurs. (See People v. Caro (1988) 46 Cal.3d 1035, 1047 [251 Cal.Rptr. 757, 761 P.2d 680].)\\nC. Admissibility of Defendant's Statements\\nDefendant contends the court erred in admitting certain statements he made to police officers on March 28 and April 3, 1986. We conclude the statements were properly admitted and, in any event, any Miranda error was harmless beyond a reasonable doubt.\\n1. March 28 interview\\nOn March 28, 1986, defendant was interviewed by Officers McCarthy and Keate concerning the murders of Castro and Holmes. Officer McCarthy told defendant the purpose of the interview, and defendant replied, \\\"fine.\\\" When McCarthy brought out a tape recorder, defendant objected, stating \\\"No tape recording, I don't want to incriminate myself.\\\" The recorder was not used.\\nOfficer McCarthy thereupon read defendant his Miranda rights (see Miranda v. Arizona (1966) 384 U.S. 436, 444-445 [16 L.Ed.2d 694, 706-707, 86 S.Ct. 1602, 10 A.L.R.3d 974]), and defendant confirmed that he understood those rights and wished to talk with the officers. Defendant was also informed he could terminate the interview at any time. The ensuing interview lasted around two and one-half hours. During its course, McCarthy explained that defendant would be charged with the two murders, and defendant (1) bragged that his mother would hire a \\\"high price lawyer out of New York\\\" to defend him, (2) inquired of possible penalties for the murders, and (3) initiated the possibility of a plea bargain.\\nWhen informed that he might be charged with offenses carrying the death penalty, defendant stated, \\\"Maybe I ought to talk to a lawyer, you might be bluffing, you might not have enough to charge murder.\\\" Officer McCarthy thereupon asked defendant if he wanted to talk to a lawyer at that point, and defendant made no direct reply except to repeat that he thought McCarthy was \\\"bluffing.\\\"\\nDefendant, stating \\\"This is off the record,\\\" next asked Officer McCarthy if a 10-year sentence was possible for the murder charges. McCarthy replied that the matter of sentence was up to the district attorney, the court and defendant's counsel. Defendant acknowledged he was worried about receiving a death sentence. (As explained below, the foregoing \\\"off the record\\\" discussion about sentencing was ruled inadmissible.)\\nDefendant next asked Officer McCarthy to \\\"Tell me what you have and I might make you a proposition.\\\" McCarthy replied that he customarily did not disclose evidentiary details. Defendant indicated that he would not \\\"say\\\" anything \\\"without some kind of arrangement.\\\" He also declared that \\\"I probably did do it, but you are not going to get me to say I did do it.\\\" Defendant then asked McCarthy to approach the district attorney and negotiate a 10-year sentence for the murder charges.\\n2. April 3 interview\\nOn April 2, Officer Quinn received a phone call from a person identifying himself as \\\"Antonin.\\\" (Defendant was also known as Antonin Capriano.) Antonin indicated he was confined at the San Mateo County jail and wished to speak to the officer. Officers Quinn and McCarthy visited defendant and again read him his Miranda rights. Defendant again confirmed he understood\\\" these rights and wished to talk with the officers.\\nAt one point in the interview, the officers asked defendant to tell what happened in regard to Castro and Holmes. Defendant insisted the discussion be \\\"off the record,\\\" stating that he was not going to incriminate himself by telling what happened. He added that he would plead guilty to manslaughter \\\"for two years.\\\" After terminating the interview (\\\"I don't want to say anything else\\\"), he called the officers back and told them to see if the district attorney would \\\"go for twenty straight years for the case.\\\"\\nAccording to the Attorney General, and not disputed by defendant's appellate counsel, none of defendant's statements at the April 3 interview was introduced at trial. Accordingly, it is apparent that defendant could not have been prejudiced by any asserted Miranda errors occurring during that interview, and we do not discuss defendant's claims in that regard.\\n3. Trial court's rulings\\nDefendant moved the trial court to suppress his statements, asserting that the interviews continued after he had invoked his rights to remain silent and to consult with an attorney. The court disagreed, finding that defendant had voluntarily waived those rights, and did not reinvoke them. The court also ruled, however, that in light of defendant's \\\"off the record\\\" assertions during the course of both interviews, any statements immediately following these assertions would be inadmissible. The affected statements related to possible plea bargains or potential sentences for the murders.\\n4. Discussion\\nAs we stated in People v. Boyer (1989) 48 Cal.3d 247, 263 [256 Cal.Rptr. 96, 768 P.2d 610], reviewing a similar claimed Miranda violation, \\\"The scope of our review of constitutional claims of this nature is well established. We must accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained. [Citation.]\\\"\\na. \\\"No tape recorder\\\" remark\\nDefendant contends he invoked his right to remain silent at the outset of the March 28 interview by remarking: \\\"No tape recorder. I don't want to incriminate myself.\\\" The trial court found that this remark was ambiguous and did not necessarily disclose an intent to \\\"cut off' all questions, as opposed to merely expressing an objection to the use of a tape recorder to memorialize defendant's responses. In the trial court's view, defendant's remarks indicated only a \\\"partial restriction\\\" on his willingness to speak to the officers. Accordingly, they were entitled to continue the interrogation once they clarified the situation by giving Miranda advisements and obtaining defendant's express consent to be interviewed. We agree. As indicated previously, the advisements, and defendant's agreement to talk, occurred immediately following his \\\"no tape recorder\\\" remark and clearly confirmed his general willingness to speak to the officers.\\nDefendant asserts his remarks showed he was unwilling to \\\"freely and completely\\\" discuss his case with the police. (See People v. Burton (1971) 6 Cal.3d 375, 382 [99 Cal.Rptr. 1, 491 P.2d 793]; People v. Randall (1970) 1 Cal.3d 948, 956 [83 Cal.Rptr. 658, 464 P.2d 114].) We find the foregoing cases inapposite. They recite the familiar rule that police interrogation must cease once the defendant, by words or conduct, demonstrates a desire to invoke his right to remain silent, or to consult with an attorney. Neither case, however, stands for the proposition that a defendant automatically invokes those rights by imposing conditions (such as \\\"no tape recorder\\\") governing the conduct of the interview.\\nDefendant contends that prior cases have held a suspect's refusal to permit a tape-recorded interview constitutes an invocation of his right to remain silent. (See People v. Hinds (1984) 154 Cal.App.3d 222, 235-236 [201 Cal.Rptr. 104]; People v. Nicholas (1980) 112 Cal.App.3d 249, 268 [169 Cal.Rptr. 497].) In both these cases, however, the suspect's refusal to permit a recording was accompanied by other facts disclosing his clear intent to speak privately and in confidence with the officers. (See also People v. Braeseke (1979) 25 Cal.3d 691, 702-703 [159 Cal.Rptr. 684, 602 P.2d 384] [defendant's request for \\\"off the record\\\" discussion invoked his self-incrimination privilege].)\\nIn the present case, by contrast, the trial court found no such clear intent on defendant's part. Although defendant asked that the proceedings go \\\"off the record\\\" at various points during the interviews, he expressed no general expectation of privacy covering the entire interview. (We discuss in a subsequent part of this opinion defendant's separate contention that his requests for \\\"off-the-record\\\" treatment required the officers to terminate further questioning.) As another recent case observes, \\\"it was for the trial court to determine whether [the defendant's] refusal to . . .be recorded was in fact an invocation of his right to silence. The court found [the defendant] in fact had understood his rights and waived them, and his conversations with the officers were therefore voluntary. Such a conclusion was reasonable, and we will not disturb it on this appeal. [Citations.]\\\" (People v. Maier (1991) 226 Cal.App.3d 1670, 1678 [277 Cal.Rptr. 667].)\\nDefendant observes that he linked the \\\"no tape recorder\\\" remark with the explanation that \\\"I don't want to incriminate myself,\\\" a statement defendant deems an explicit invocation of his self-incrimination privilege. But the trial court reasonably could find that the remark, being linked to defendant's insistence on \\\"no tape recorder,\\\" merely expressed his assumption that only recorded statements could incriminate him at trial. Immediately after defendant made this remark, the officers read defendant the Miranda advisements, and asked defendant if he wished to talk to them. These advisements included the unqualified admonition that anything defendant said to the officers could be used against him in a court of law. The trial court reasonably could find that this admonition cleared up any possible misconception defendant previously may have entertained regarding the admissibility of his unrecorded statements to the officers.\\nSeveral California cases have indicated that if a defendant expresses ambiguous remarks falling short of a clear waiver or invocation of his Miranda rights, the officers may continue talking with him for the limited purpose of clarifying whether he is waiving or invoking those rights. (See People v. Carey (1986) 183 Cal.App.3d 99, 103 [227 Cal.Rptr. 813], and cases cited; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 526-527 [212 Cal.Rptr. 605]; People v. Russo (1983) 148 Cal.App.3d 1172, 1177 [196 Cal.Rptr. 466].) We approve the rule of these cases and find it applicable here. Giving defendant full Miranda warnings and obtaining his waiver of his Miranda rights was a legitimate method of clarifying any ambiguities inherent in defendant's \\\"no tape recorder\\\" remark.\\nb. Defendant's references to securing a lawyer\\nMidway during the March 28 interview, Officer McCarthy indicated (as he had already done several times during the interview) that murder charges would be brought against defendant. He replied that \\\"My mother will put out money for a high price lawyer out of New York.\\\" McCarthy asked for the name of defendant's lawyer, but he refused to furnish it, stating, \\\"I don't want you talking to my lawyer.\\\"\\nThereafter, following a discussion (initiated by defendant) of the possible penalties that might be imposed for the murders, including death or life without possibility of parole, defendant stated, \\\"Give me a minute, I might tell you something you want to hear.\\\" After a few moments of silence, defendant then said, \\\"Maybe I ought to talk to my lawyer, you might be bluffing, you might not have enough to charge murder.\\\" Officer McCarthy immediately asked defendant if he wanted to talk to a lawyer before answering more questions, and defendant simply repeated that he thought McCarthy was bluffing. He made no further mention of lawyers during this interview.\\nDefendant contends that each of the foregoing references to lawyers invoked his right to counsel and should have induced the officers to terminate the interview. The trial court ruled that defendant's initial remark regarding his mother securing a \\\"high price\\\" lawyer was \\\"not an expression of an intent to terminate the interview at that time, but instead related to a future trial and not to present questioning.\\\" We agree.\\nThe cases hold that if a defendant indicates in any manner that he wishes to consult with an attorney, the interrogation must cease. (Miranda v. Arizona, supra, 384 U.S. at pp. 444-445 [16 L.Ed.2d at pp. 706-707]; People v. Boyer, supra, 48 Cal.3d at p. 271.) The California courts have found invocations of the right to counsel in such varying statements or inquiries as \\\" I don't know if I should have a lawyer here or what' \\\" (People v. Russo, supra, 148 Cal.App.3d at p. 1177), \\\" 'Do you think we need an attorney?' \\\" and \\\" T guess we need a lawyer' \\\" (People v. Superior Court (Zolnay) (hereafter Zolnay) (1975) 15 Cal.3d 729, 735-736 [125 Cal.Rptr. 798, 542 P.2d 1390]), \\\" 'Well, maybe I should talk to my attorney, Mr. Corbin' \\\" (People v. Munoz (1978) 83 Cal.App.3d 993, 995 [148 Cal.Rptr. 165]), and \\\" 'Tell me the truth, wouldn't it be best if I had an attorney with me?' \\\" (People v. Hinds, supra, 154 Cal.App.3d at p. 234.)\\nYet we have found no case suggesting that a suspect's statement concerning the possible retention of a lawyer for future proceedings would require termination of a police interrogation. (See Zolnay, supra, 15 Cal.3d at p. 736 [suspect's expressed need for attorney was \\\"immediate,\\\" not merely \\\"in the future\\\" (italics omitted)].) In our view, the trial court properly deemed defendant's statement mere bragging about his ability to secure high priced legal representation for future proceedings, and not a request to consult with an attorney during the present interrogation. This interpretation of defendant's remarks is reinforced by his refusal or inability to give Officer McCarthy the name of his lawyer.\\nDefendant's second remark, \\\"Maybe I ought to talk to a lawyer,\\\" is considerably more troublesome. The trial court ruled that the word \\\"maybe\\\" rendered the statement equivocal, and that in context the reference to a lawyer was not intended as an invocation of defendant's right to remain silent. Defendant's intent to continue the interview was confirmed by his failure to respond to McCarthy's immediate inquiry as to whether defendant wanted an attorney, and by defendant's subsequent request of McCarthy to \\\"Tell me what you have and I might make you a proposition.\\\"\\nAs previously indicated, the courts have found Miranda violations despite considerable equivocation by the defendant. We briefly review the apposite decisions.\\nIn Zolnay, supra, 15 Cal.3d at page 735, we observed that the suspect's question, \\\" 'Do you think we [referring to himself and a codefendant] need an attorney?'\\\" and his statement, \\\"T guess we need a lawyer,'\\\" were \\\"a direct result of the interrogation. The record discloses that the query interrupted the interrogation at a point when defendants' choice seemed all but limited to confession or silence. Moreover, defendants' subsequent specific request that the deputies recommend an attorney indicates both their continuing concern and their specific and pointed desire to consult counsel. We think the record discloses sufficient invocation of their right to remain silent.\\\" We stressed in Zolnay (id. at p. 736) that \\\" 'no particular form of words or conduct is necessary' \\\" to invoke the self-incrimination privilege. (Quoting from People v. Randall, supra, 1 Cal.3d at p. 955.)\\nThe present case is factually distinguishable from Zolnay, supra, in several respects. Initially, on this record it is highly unlikely that defendant's reference to an attorney disclosed his confusion or uncertainty about continuing the interview. A reading of Officer McCarthy's notes of the interrogation reveals that from start to finish defendant maintained a confident, \\\"cocky\\\" attitude, verbally sparring with the officer, expressing doubts about the strength or admissibility of the evidence against him, negotiating with McCarthy for a possible reduced sentence, and bragging about his good looks, his various girlfriends, his ability to produce an alibi for \\\"any date you want,\\\" and his mother's ability to hire an expensive lawyer. As McCarthy noted, defendant appeared to \\\"almost relish[] his role as the focus of our attention . . . .\\\" Unlike the situation in Zolnay, supra, defendant never asked the deputies to recommend an attorney, and he declined to respond to McCarthy's attempts to learn his lawyer's name or to determine whether he in fact truly wanted to speak to an attorney.\\nIn People v. Munoz, supra, 83 Cal.App.3d 993, the officers took a robbery suspect to an interview room and began to interrogate him. As soon as the interrogating officer introduced himself, the suspect stated, \\\"Well, maybe I should talk to my attorney, Mr. Corbin.\\\" Rather than terminate the interview, the officer agreed that the suspect could talk to his attorney, but first the officer wanted to explain what information he had, and what he needed to learn. Eventually, the suspect confessed.\\nThe Munoz court, citing our Zolnay decision, supra, 15 Cal.3d 729, held that the continued interrogation was improper. The court noted that although the suspect's remark was \\\"ambiguous,\\\" it could be construed \\\"as an invocation of his right to speak to an attorney before questioning.\\\" (83 Cal.App.3d at p. 996.) The court also relied on the fact that the suspect had mentioned his attorney by name, indicating he already had retained counsel. (Ibid.)\\nIn People v. Hinds, supra, 154 Cal.App.3d 222, a murder suspect was arrested and interrogated after being advised of his Miranda rights. The suspect asked the officer, \\\" 'Tell me the truth, wouldn't it be best if I had an attorney with me?' \\\" Rather than stop the interrogation, the officer indicated to the suspect that although this matter was for him to decide, the attorney \\\"would not be the one going to jail, possibly facing 'first degree murder, special circumstances and the death penalty. ' \\\" (Id. at p. 231.) Eventually, the suspect admitted the killing.\\nThe Hinds court, explaining that \\\" 'Ambiguous statements are to be construed as invocations . . . ,'\\\" found that the suspect's initial inquiry was sufficient to invoke his right to counsel. (154 Cal.App.3d at p. 235, quoting from People v. Duran (1983) 140 Cal.App.3d 485, 492 [189 Cal.Rptr. 595].) Hinds likewise is factually distinguishable, however, for the interrogating officer in that case, rather than attempt to clarify the suspect's ambiguous remark, improperly tried to dissuade him from terminating the interview. (See 154 Cal.App.3d at p. 235.)\\nPeople v. Bestelmeyer, supra, 166 Cal.App.3d 520, 527-528, seems more closely on point. There, after the suspect was arrested for molesting his stepdaughter, the arresting officer gave Miranda warnings and commenced an interview. At the outset, after being told he could terminate the interview at any time, the suspect was asked by one officer what he was thinking. The suspect replied, \\\" T was just thinkin', maybe I shouldn't say anything without a lawyer and then I thinkin' ahh.' \\\" (Id. at p. 524.) The officer continued explaining to the suspect that he could waive his rights, agree to talk to the officers, and then reinvoke his rights and stop talking to them. The suspect made no further references to an attorney, and eventually he made incriminating statements.\\nThe Bestelmeyer court found that the suspect's initial remark was too ambiguous to amount to an invocation of his right to the presence of counsel, and that substantial evidence supported the lower court's finding that the suspect knowingly waived that right. (166 Cal.App.3d at pp. 527-528.)\\nTurning to the present case, we think that in light of the whole record, including defendant's overall conduct and demeanor during the interrogation, the ambiguous and tentative nature of his reference to an attorney, Officer McCarthy's immediate attempt to clarify defendant's remark, and defendant's refusal to respond thereto, there was substantial evidence to support the trial court's determination that defendant did not invoke his right to counsel. Accordingly, it is unnecessary to determine whether the asserted Miranda error was prejudicial. (See pt. III. C.4.d., post.)\\nc. The \\\"off-the-record\\\" request\\nAs noted above, at one point in the March 28 interview, after Officer McCarthy had assured defendant that he was not \\\"bluffing\\\" about charging defendant with murder, defendant abruptly stated, \\\"This is off the record.\\\" McCarthy replied, \\\"You're doing all the talking, don't let me stop you, go ahead.\\\" Defendant thereupon asked McCarthy, \\\"Can you get me 10 years?\\\" The ensuing discussion concerned possible penalties that might be imposed. (All of these \\\"sentencing\\\" discussions were excluded at trial.) Soon thereafter, defendant asked McCarthy, \\\"Tell me what you have and I might make you a proposition.\\\" After McCarthy falsely told defendant that McCarthy knew that defendant had pawned some of the victims' jewelry, and that victim Holmes had identified defendant before she died, defendant stated that his name was not on any pawn slip, that it would be his word against the pawnshop owner, and that a dying declaration from victim Holmes \\\"would convict me of killing her . . . but not [victim Castro], but it's close in time, but I am not saying I did it. [\\u00b6] . . .1 probably did do it, but you are not going to get me to say I did do it.\\\" (This latter statement was introduced at trial.)\\nImmediately thereafter, defendant again said, \\\"This is off the record,\\\" and McCarthy told him to go ahead. Defendant then directed McCarthy to go to the district attorney and \\\"get me ten straight. . . years, and I will give you something you want.\\\" The remaining discussion concerned possible arrangements for reduced sentences in return for defendant's statement about the murders.\\nThe trial court found that defendant's \\\"off the record\\\" requests pertained only to the sentencing and plea bargain discussions which immediately followed those requests, and that accordingly any statements not pertaining to sentencing were admissible. The court ruled that only the sentencing discussions would be inadmissible at trial.\\nDefendant contends that all statements following his initial \\\"off-the-record\\\" request should have been suppressed, because McCarthy never informed him that the interview was no longer \\\"off the record.\\\" He cites no cases imposing such a rigid requirement, and we have found none so holding. The main inquiry should be whether defendant knowingly and intelligently waived his right to remain silent. Here, the trial court found the waiver remained valid as to discussions not involving sentencing. (See People v. Silva (1988) 45 Cal.3d 604, 629-630 [247 Cal.Rptr. 573, 754 P.2d 1070] [suspect's refusal to discuss certain subjects not conclusive indication of intent to terminate interrogation]; People v. Hayes (1985) 38 Cal.3d 780, 784-786 [214 Cal.Rptr. 652, 699 P.2d 1259] [defendant's expressed reluctance to discuss \\\"details\\\" of confession did not invoke Miranda right to silence]; see also People v. Edwards (1991) 54 Cal.3d 787, 814-817 [1 Cal.Rptr.2d 696, 819 P.2d 436] [\\\"off-the-record\\\" request does not render volunteered statements inadmissible].) We find the record amply supports the trial court's finding. It seems unlikely defendant would have repeated his \\\"off-the-record\\\" request if he had intended or assumed the proceedings remained off the record following his initial request.\\nIt could be argued that defendant's request that the interview proceed \\\"off the record\\\" disclosed his confusion about the admissibility of his statements to the officers, thereby vitiating the Miranda waiver. In People v. Braeseke, supra, 25 Cal.3d at pages 702-703, we held that a defendant's \\\"off-the-record\\\" request, acceded to by the officers, was inconsistent with a knowing waiver of self-incrimination rights. As we stated in that case, \\\"defendant's request revealed a marked lack of understanding of the Miranda warnings. [Citation and fn. omitted.].\\\" (See also Frazier v. United States (D.C. Cir. 1969) 419 F.2d 1161, 1168-1169 [136 App.D.C. 180] [officers' obligation to clarify the defendant's misconception regarding admissibility of oral admissions].)\\nBraeseke, supra, 25 Cal.3d 691, is distinguishable, however, because there the trial court permitted admission of the defendant's statements despite his request for \\\"off-the-record treatment.\\\" In the present case,' as we have indicated, the trial court excluded those statements regarding possible sentencing to which the off-the-record request was directed. Moreover, it is arguable that an \\\"off-the-record\\\" request no longer necessarily demonstrates confusion on the defendant's part because, following Braeseke, such a request effectively insulates the affected portion of the interview from subsequent courtroom use. As with defendant's statement that \\\"maybe I ought to talk to a lawyer,\\\" because we find no Miranda violation in connection with defendant's \\\"off the record\\\" remark, it is unnecessary to determine the prejudicial effect of such error. Nonetheless, because it seems apparent that no prejudice resulted from any such violation, we address that subject briefly, as follows:\\nd. Prejudice\\nThe principal inculpatory statement made by defendant after he indicated he \\\"maybe\\\" needed counsel and requested \\\"off-the-record\\\" treatment was his statement that \\\"I probably did do it [kill victim Castro], but you are not going to get me to say I did do it.\\\" The prosecutor emphasized this statement in his closing argument to the jury. The statement, though somewhat softened by the word \\\"probably,\\\" nonetheless reasonably could be viewed as a confession or admission of guilt. We note, however, that (as disclosed to the jury) during the same interview defendant repeatedly denied his guilt of either murder. In context, the jury could have viewed defendant's \\\"probably guilty\\\" remark as more of a taunt to the interrogating officer than an outright admission of guilt.\\nUnder federal law, the test of prejudice for admitting a coerced confession is the Chapman test, requiring reversal unless the error was harmless beyond a reasonable doubt. (See Arizona v. Fulminante (1991) 499 U.S. 279, 309 [113 L.Ed.2d 302, 331-332, 111 S.Ct. 1246, 1265]; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065].) Presumably, the federal courts would apply the same test to a confession adduced in violation of Miranda. Similarly, under state law, we recently rejected a per se reversible error standard for coerced confessions, concluding that a conviction may be affirmed despite the erroneous admission of an involuntary confession, when the record shows that the admission of the confession was harmless beyond a reasonable doubt. (See People v. Cahill (1993) 5 Cal.4th 478, 509-510 [20 Cal.Rptr.2d 582, 853 P.2d 1037].)\\nWas any Miranda error in this case harmless beyond a reasonable doubt? On this record, we believe it was. Defendant, before suggesting that he \\\"maybe\\\" should see his lawyer, and before asking to go \\\"off the record,\\\" admitted to Officer McCarthy that he knew Castro and had visited her on or about the night of the murders. According to defendant, on the last such visit, he drove Castro's children to a babysitter, ate dinner with her, had \\\"sex\\\" with her and drank with her until she became intoxicated and fell asleep. Her mother, victim Holmes, called from downstairs to inquire of Castro, and defendant told her Castro was asleep. All this evidence of defendant's involvement with the two victims on or about the night they were murdered was seemingly untainted by defendant's subsequent claimed invocations of his Miranda rights.\\nIn addition, defendant's girlfriend, Roshaun Fuller, testified at trial that defendant had admitted to her that he \\\"knocked out\\\" victim Castro, \\\"hit\\\" victim Holmes on the back of her head, and thereafter stole $200 and a ziploc bag of heavy gold jewelry from them. Other witnesses placed defendant with Castro on or about the night of the murders, and later observed him wearing expensive gold jewelry and new clothes.\\nSignificantly, other than pointing to flaws and inconsistencies in witness Fuller's testimony, the defense failed to rebut the foregoing evidence or to raise any credible defenses to the murder charges. In light of the strong incriminating evidence that was properly admitted at trial, we conclude that admission of defendant's equivocal statement that he \\\"probably did it\\\" was harmless beyond a reasonable doubt.\\nD. Testimony of Denise Lancaster\\nDefendant contends the court erred in allowing witness Denise Lancaster to testify at the guilt phase that defendant had threatened to kill her and had told her he had killed before. At an in limine hearing, Lancaster testified she had picked up defendant in March 1986 while he was hitchhiking. (The charged murders occurred in January 1986.) He raped her, threatened to kill her, and told her he had killed before. The court ruled that Lancaster could not testify concerning the rape, but could relate the other statements. At trial, she did so, referring to the rape as a \\\"physical confrontation\\\" with defendant.\\nDefendant asserts Lancaster's testimony that he had killed before was irrelevant because the statement was not linked to the charged murders. (Cf. People v. Hamilton (1985) 41 Cal.3d 408, 417, 428 [221 Cal.Rptr. 902, 710 P.2d 981] [defendant's statement, \\\"Yeah, [I've had my fun,] and I'll kill a lot more, too, and you may be first on my list,\\\" held admissible because in context it \\\"required no speculation to connect it to the [pending murder charges]\\\".) Defendant suggests that admissions of prior criminal conduct unrelated to the charged offense are inadmissible at the guilt phase, being essentially character evidence barred by Evidence Code section 1102, subdivision (b).\\nWe think that defendant's admission of a prior killing or killings, made soon after the charged murders were committed, was relevant to the ultimate question of defendant's guilt. The. jury was entitled to infer that defendant was referring to the killing of Castro and Holmes. The fact that he could have been referring to an unrelated killing goes more to the weight of his statement than to its admissibility. Moreover, in light of the other evidence of defendant's guilt, outlined above, any error in admitting Lancaster's testimony concerning defendant's admission of a prior killing was harmless.\\nWe note that defendant does not argue the inadmissibility of Lancaster's recital of defendant's threat to kill her. Although this evidence seemingly would have little relevance to the issue of defendant's guilt, it is at least arguable the threat confirmed defendant's intent or state of mind to kill those who opposed him. (See People v. Lang, supra, 49 Cal.3d at pp. 1013-1016.) In any event, any error in admitting the statement was undoubtedly harmless in light of the remaining evidence of guilt.\\nE. Ineffective Counsel Claim\\nAs previously noted, victim Castro was strangled with a wire wrapped around her neck. The wire was examined by a prosecution expert, Mario Soto, who testified at trial the wire was a telephone cord that had been cut, rather than tom, from the wall. According to Soto, prior to forming the foregoing conclusion, he purchased some telephone wire and tried cutting and breaking it to duplicate the ends of the wire found around Castro's neck. The cut wire more closely resembled the wire found at the scene. Defense counsel made no objection to this testimony.\\nDefendant now contends counsel was ineffective in failing to object to Soto's testimony on the ground that no proper foundation was laid to support his out-of-court \\\"experiment\\\" with the wire. Defendant asserts that the People failed to establish the wire used by Soto was sufficiently similar to the wire found wrapped around Castro's neck. (See DiRosario v. Havens (1987) 196 Cal.App.3d 1224, 1231 [242 Cal.Rptr. 423] [experiment results inadmissible unless conditions substantially identical to prior event]; Andrews v. Barker Brothers Corp. (1968) 267 Cal.App.2d 530, 537 [73 Cal.Rptr. 284] [same].) Defendant suggests the omission was prejudicial because Soto's testimony helped establish the People's theory of intentional, premeditated murder.\\nOn the present record, we find no basis for concluding that counsel's failure to object reflected his incompetence. As a general rule, failure to object to specific items of evidence \\\"involves tactical decisions on counsel's part and seldom establishes counsel's incompetence. [Citation].\\\" (People v. Jackson, supra, 28 Cal.3d at p. 292.) In the present case, it is possible that counsel deemed it tactically unwise to object to Soto's testimony. Indeed, it is conceivable that counsel investigated the matter and learned that Soto indeed used similar wire in his experiment. Accordingly, we need not resolve the question whether counsel's omission prejudiced defendant in light of the other evidence of his premeditation. Under such circumstances, the incompetence claim must be denied. (See People v. Pope (1979) 23 Cal.3d 412, 425-426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].)\\nF. Evidence and Instructions Relating to Burglary\\nAs previously indicated, the jury found defendant guilty of two counts of first degree murder. The murder charges against defendant alleged both premeditated murder and felony murder. To establish the latter, the People attempted to prove defendant committed an underlying burglary (\\u00a7 459), based in part on his possession of jewelry recently stolen from the victims. (The People also attempted to prove an underlying rape was committed [\\u00a7 261], as discussed post, pt. III. G.) Objecting to any instructions on the offense of burglary, the defense noted the absence of evidence indicating defendant entered the victim's home with the intent to steal the jewelry.\\nThe trial court nonetheless instructed the jury regarding the crime of burglary, and additionally instructed, based on CALJIC No. 2.15 (5th ed. 1988), as follows:\\n\\\"Conscious possession of recently stolen property is not in and of itself sufficient to permit an inference that the defendant committed the crime of burglary. Before guilt may be inferred, there must be corroborating evidence tending to prove defendant's guilt. However, this evidence need only be slight, and need not in and of itself be sufficient to warrant an inference of guilt. [\\u00b6] As corroboration you may consider the attributes of possession\\u2014 time, place and manner, that the defendant had an opportunity to commit the crime charged, the defendant's conduct, his false or contradictory statements, if any, or other statements he may have made with reference to the property, and any other evidence which tends to connect the defendant with the crime charged.\\\"\\nDefendant now raises a variety of claims of error arising from giving the foregoing instruction. We find no merit in any of them.\\n1. Evidence of burglary\\nFirst, defendant asserts the instruction was improper because there was insufficient evidence a burglary had in fact occurred. (Cf. People v. Morris (1988) 46 Cal.3d 1, 40 [249 Cal-Rptr. 119, 756 P.2d 843] [improper to give unqualified CALJIC No. 2.15 instruction where evidence relating to defendant's possession of stolen property is unclear].) He contends evidence was lacking regarding his intent to steal at the time he entered the victims' home. (See \\u00a7 459.) We disagree.\\nExamination of the record indicates there was sufficient circumstantial evidence of a burglary, and of defendant's intent to steal the victims' jewelry when he entered the victims' home. (See People v. Earl (1973) 29 Cal.App.3d 894, 896-898 [105 Cal.Rptr. 831] [circumstantial evidence routinely used to establish intent to steal].) Defendant admitted to the officers he was aware the victims possessed gold jewelry, and also that he was present at their home on or about the date of the murders. Substantial amounts of gold jewelry were missing from the premises. Defendant was later seen wearing gold rings, bracelets and necklaces, and was also seen pawning some gold jewelry (although this jewelry could not be positively traced to the victims). He told Roshaun Fuller that he assaulted and \\\"robbed\\\" both victims after ransacking their rooms and taking their jewelry. He also told Fuller that he made his living by taking property from women. Additionally, he told an acquaintance, Constance Smith, prior to the murders that he was not romantically interested in victim Castro, but simply looked on her as someone from whom he could obtain money.\\nWe conclude that, in light of the foregoing record, there was sufficient evidence of a burglary, including a preexisting intent to steal. Accordingly, the court did not err in giving CALJIC No. 2.15.\\n2. Evidence of possession of stolen jewelry\\nAs previously noted, under People v. Morris, supra, 46 Cal. 3d at page 40, an unqualified instruction based on CALJIC No. 2.15 should not be given if the defendant's possession of the stolen property is unclear or in dispute. (See also United States v. Bamberger (3d Cir. 1972) 456 F.2d 1119, 1134.) Defendant asserts that the prosecution introduced no evidence establishing that he possessed any of the victims' jewelry. We disagree.\\nSeveral witnesses described in detail various items of the victims' missing jewelry, including a large \\\"coin-type\\\" medallion worn by victim Holmes. Witness Constance Smith testified that this medallion could have been the same one she saw defendant wearing following the murders. As previously noted, defendant was seen wearing gold rings, bracelets and necklaces, and was also seen pawning some gold jewelry. He told Roshaun Fuller that he assaulted and \\\"robbed\\\" both victims after ransacking their rooms and taking their jewelry. We conclude the record contains sufficient evidence of possession of stolen property to justify the instruction.\\n3. Presumption of burglary\\nDefendant asserts that CALJIC No. 2.15 created ah improper presumption of burglary arising from the mere fact of possession of stolen property. But the instruction does not so state. Indeed, it relates a contrary proposition: a burglary may not be presumed from mere possession unless the commission of the offense is corroborated. (Defendant suggests the instruction allows corroboration merely by evidence of the charged offense of murder, but we think it clear that, read in context, the instruction requires corroboration of the underlying burglary, and not the murder itself.) Moreover, as the People observe, the ultimate question whether or not a burglary \\\"occurred, and the subsidiary question whether defendant possessed the requisite preexisting intent to steal, were left to the jury through the usual instructions regarding the elements of that offense. Thus, contrary to defendant's assumption, CALJIC No. 2.15 did not remove the issue of intent from the jury's consideration. (See People v. Figueroa (1986) 41 Cal.3d 714, 725-727 [224 Cal.Rptr. 719, 715 P.2d 680]; see also People v. Anderson (1989) 210 Cal.App.3d 414, 422, 426-431 [258 Cal.Rptr. 482] [upholding validity of CALJIC No. 2.15].)\\nDefendant nonetheless contends that CALJIC No. 2.15 is a \\\"permissive presumption\\\" of a kind justified only if the evidence is \\\"sufficient for a rational juror to find the inferred fact beyond a reasonable doubt . . . .\\\" (Barnes v. United States (1973) 412 U.S. 837, 843 [37 L.Ed.2d 380, 386, 93 S.Ct. 2357].) Defendant further notes that constitutional principles require a rational connection between the proved facts and the presumed fact. (E.g., Ulster County Court v. Allen (1979) 442 U.S. 140, 157 [60 L.Ed.2d 111, 792, 99 S.Ct. 2213]; see also People v. Roder (1983) 33 Cal.3d 491, 497-499 [189 Cal.Rptr. 501, 658 P.2d 1302].) Assuming the challenged instruction amounts to a presumption of burglary based on defendant's possession of recently stolen property, we think the evidence summarized above (see pt. F.l. and F.2., ante) amply meets the standard set forth in Barnes and Ulster. Similarly, for the reasons above set forth, we must reject defendant's related contention that his murder convictions must be reversed on the ground of insufficient evidence of burglary as the underlying felony.\\nHaving concluded that the court did not err in giving CALJIC No. 2.15, we need not address defendant's further contentions that the purported error was reversible per se, and that the error cannot be rendered harmless by reliance on the prosecution's alternative theories of premeditated murder or rape/murder (see Griffin v. United States (1991) 502 U.S._[116 L.Ed.2d 371, 382-383, 112 S.Ct. 466, 474]; People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130 [17 Cal.Rptr.2d 365, 847 P.2d 45]).\\nG. Evidence of Rape\\nAs previously indicated, the People, in attempting to prove that defendant committed first degree murder as to both victims, relied on both a premeditated-murder theory and a felony-murder theory. The latter theory was based on defendant's commission of the underlying offenses of burglary (previously discussed, ante, pt. III. F.) and rape or attempted rape. Defendant contends there was insufficient evidence of rape or attempted rape to support a felony-murder finding as to victim Holmes. Consistent with our prior holdings, we agree. We also conclude, however, that the insufficiency as to the rape/murder theory was harmless in light of the valid alternative theories of premeditated murder and burglary/murder that were presented to the jury with respect to both victims.\\nTo determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole. (People v. Barnes (1986) 42 Cal.3d 284, 303 [228 Cal.Rptr. 228, 721 P.2d 110]; People v. Johnson (1980) 26 Cal.3d 557, 576-578 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255]; see Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [61 L.Ed.2d 560, 573, 99 S.Ct. 2781].)\\nThe People relied on the following evidence to support a felony-murder (rape or attempted rape) theory as to victim Holmes:\\nDefendant admitted to police that on or about the night of the murders, he visited the home of victims Holmes and Castro, encouraged Castro to drink to the state of intoxication, and then had \\\"sex\\\" with her. During police interrogation, although the officers had not accused defendant of raping either victim, and indeed had not even mentioned that offense, defendant, in the course of evaluating the evidence against him, made the observation that \\\"rape is hard to prove because it [the inquiry] is if she gave up the pussy or didn't she.\\\"\\nSome physical evidence indicated that victim Holmes may have been sexually assaulted in the course of her murder. Her body was dressed only in a sweatshirt and bra; she was wearing nothing from the waist down. (Cf. People v. Jennings (1991) 53 Cal.3d 334, 367 [279 Cal.Rptr. 780, 807 P.2d 1009] [corpus delicti of rape inferred from evidence of murder in remote locale coupled with unclothed condition of body].) The officers found a pair of pantyhose on the floor of her room. Holmes had been beaten severely; blood was found on the floor, sofa cushions and loveseat in that room. This evidence supported the prosecution's theory that any sexual activity was nonconsensual. (See id. at p. 368.)\\nDefendant correctly observes that no evidence was introduced to indicate any sexual trauma, seminal traces or other evidence of penetration, forced or otherwise, as to victim Holmes. The People argue, however, that a felony-murder charge could be sustained on a finding of attempted rape, and the jury was so instructed. (See \\u00a7 189; People v. Hillery (1965) 62 Cal.2d 692, 704-705 [44 Cal.Rptr. 30, 401 P.2d 382] [evidence of trauma to genitals unnecessary to establish attempted rape]; cf. People v. Wright (1990) 52 Cal.3d 367, 405 [276 Cal.Rptr. 731, 802 P.2d 221] [lack of evidence of penetration not fatal to felony-murder/rape special-circumstance finding sustainable on proof of attempted rape].)\\nBut other than the inference that defendant may have raped victim Castro, the only evidence of his rape or attempted rape of victim Holmes was 'her partly unclothed body. Defendant cites prior cases of this court to support his position that the unclothed or partly clothed condition of the victim's body is insufficient to establish an actual or attempted sex offense. (See People v. Anderson (1968) 70 Cal.2d 15, 34-36 [73 Cal.Rptr. 550, 447 P.2d 942] [insufficient evidence of intent to commit lewd act under \\u00a7 288]; People v. Craig (1957) 49 Cal.2d 313, 318-319 [316 P.2d 947] [insufficient evidence of specific intent to commit rape or attempted rape]; see also People v. Granados (1957) 49 Cal.2d 490, 497 [319 P.2d 346] [victim found in bloodstained room with skirt pulled up and genitals exposed, but no evidence of spermatozoa or genital trauma\\u2014held insufficient to establish felony murder based on commission of lewd act].) These cases are indeed close on point, though factually distinguishable in some respects. Inexplicably, the Attorney General fails to address, or even cite, these cases in his respondent's brief.\\nIn Craig, the defendant, earlier in the evening, had expressed his general desire to \\\"have a little loving,\\\" and he subsequently quarrelled with a woman in a bar (not the victim) who refused to dance with him. Later that night, he attacked and killed the victim by strangling her and by beating her 20 to 80 times. The victim's body was found in a service station, lying beneath a jacked-up automobile. She had apparently been dragged across the ground about 25 feet, and 2 nearby cars were spattered with blood. She was wearing a raincoat over a nightgown and panties. Her raincoat had been ripped open, and her nightgown and panties were likewise tom so that the \\\"front part of the body was exposed.\\\" (49 Cal.2d at p. 316.) Her panties were torn open and were \\\"under her.\\\" (Ibid.) She was found lying on her back with her legs slightly spread, and had suffered multiple contusions and lacerations of her face, breasts, neck and lower abdomen. (Ibid.)\\nA divided court (four to three; maj. opn. by Carter, J.; dis. opn. by Spence, J.) held that because of the lack of evidence of the defendant's specific intent to commit rape, such as blood on the fly qf his trousers or any other evidence that a sexual act or attempt took place, felony-murder-rape charges could not be sustained and, accordingly, the court modified the judgment to second degree murder. (The court had also found the evidence insufficient to show a premeditated murder.) The majority stressed that although the defendant's clothing was generally spattered with blood, no blood was found on the front of his trousers, fly or undershorts, making it unlikely a sex act was accomplished or even attempted. The open position of the victim's legs \\\"loses significance when it is recalled that the body had been dragged some 20 to 25 feet.\\\" (49 Cal.2d at p. 319.) The Craig dissent would have found substantial evidence that the murder was committed in an attempt to commit rape. (Id. at pp. 321-322 (dis. opn. of Spence, J.).)\\nIn People v. Anderson, supra, 70 Cal.2d 15, the defendant had repeatedly stabbed the 10-year-old female victim. More than 60 wounds were inflicted, extending over her entire body, including vaginal lacerations. No evidence of spermatozoa was found. The victim's naked body was found under a pile of boxes and blankets; her bloodstained and shredded dress was found under her bed. The crotch had been ripped out of her blood-soaked panties. Only defendant's socks and shorts were bloodstained, suggesting he was only partly clothed during the attack. (Id. at pp. 20-22.)\\nRelying on People v. Craig, supra, 49 Cal.2d 313, a divided court (four to three; maj. opn. by Tobriner, J.; dis. opns. by Burke and Sullivan, JJ.) modified a first degree murder judgment to second degree murder, holding that the foregoing evidence was insufficient to sustain a finding of the defendant's specific intent to commit a lewd act under section 288, as required to invoke the felony-murder doctrine. (70 Cal.2d at pp. 34-36.) The Anderson majority concluded that insufficient evidence was introduced to show the defendant's sexual intent; the location of the victim's wounds bore little relevance to that issue. (See id. at p. 35.) The court also found the evidence was insufficient to establish premeditated murder. (See id. at pp. 24-34.)\\nWe have cited both Craig, supra, 49 Cal.2d 313, and Anderson, supra, 70 Cal.2d 15, with apparent approval in subsequent cases determining the sufficiency of the evidence of sexual offenses underlying a felony-murder charge. (E.g., People v. Thomas (1992) 2 Cal.4th 489, 526-527 [7 Cal.Rptr. 2d 199, 828 P.2d 101] [citing, but distinguishing, Craig]', People v. Hernandez (1988) 47 Cal.3d 315, 347 [253 Cal.Rptr. 199, 763 P.2d 1289] [citing, but distinguishing, both Craig and Anderson].) Assuming that Craig and Anderson correctly state the law (and the Attorney General does not contend otherwise), they would appear to be controlling here.\\nThere are, of course, some factual distinctions between those cases and the present one. Here, unlike Craig, supra, 49 Cal.2d 313, we are not faced with any circumstances (such as the lack of blood on defendant Craig's trousers) inconsistent with a finding that defendant raped, or attempted to rape, victim Holmes. Nor can her partly clothed state be attributed to being dragged from place to place, as in Craig. Moreover, unlike the situation in Anderson, supra, 70 Cal.2d 15, defendant's specific intent to commit rape possibly could be inferred from the fact he earlier had sex with Holmes's daughter, Castro.\\nBut Anderson, supra, 70 Cal.2d 15, appears to hold that the victim's lack of clothing, even when coupled with evidence indicating the defendant was nearly naked during the attack, is insufficient to establish specific sexual intent. We have found no cases holding otherwise. In People v. Jennings, supra, 53 Cal.3d at page 367, cited by the People herein, we held that the corpus delicti of rape could be inferred from the fact that the young female victim's body was found unclothed in a remote location. We stressed, however, that the corpus delicti requirement could be satisfied by only a \\\" 'slight or prima facie' showing. [Citations.]\\\" (Id. at p. 368.) As we explained above, more than a mere \\\"prima facie\\\" showing is required to sustain a finding of rape or attempted rape on appeal.\\nOther than victim Holmes's partly clothed body, there was no evidence of a sexual assault on her. We conclude that, under Anderson and Craig, the evidence was insufficient to support a finding of first degree murder based on rape or attempted rape of victim Holmes. Does the insufficiency of evidence require reversal of the judgment? As we explained in part III. F., ante, the prosecution's felony-murder theory soundly rested on proof that both murders occurred during the course of a burglary. Moreover, defendant has not challenged the legal or evidentiary support for the prosecution's premeditated murder theory. Finally, the record shows that in closing argument the prosecutor conceded to the jury that \\\"This [Holmes's murder] was probably not a felony murder during the course of a rape,\\\" but instead was premeditated murder. Defense counsel gratefully exploited the concession in his own closing argument.\\nAccordingly, we may apply the rule that if one of the prosecution's alternative theories of criminal liability is found unsupported by the evidence, the judgment of conviction may rest on any legally sufficient theory unaffected by the error, unless the record affirmatively demonstrates that the jury relied on the unsupported ground. (See Griffin v. United States, supra, 502 U.S. _ [116 L.Ed.2d 371, 372-373, 112 S.Ct. 466, 474]; People v. Guiton, supra, 4 Cal.4th at pp. 1129-1130.) Based on our review of the record, we conclude that the insufficiency of evidence supporting a rape/ murder theory as to victim Holmes was harmless under the circumstances here.\\nH. Sua Sponte Instruction on Provocation\\nDefendant next contends the trial court erred in failing to instruct sua sponte, based on CALJIC No. 8.73, that the jury, in deciding whether defendant could be found guilty of second degree murder of victim Castro, could consider evidence of any provocation that played a part in inducing the homicide, even if that evidence was insufficient to reduce the offense to manslaughter. The record discloses that the court instructed the jurors generally on the subject of second degree murder, telling them that such a finding would be appropriate if the killing was intentional, and was committed with malice aforethought, but was neither premeditated nor deliberate.\\nAt counsel's request, the court also instructed that provocation could reduce the offense involving victim Castro to voluntary manslaughter. (The court found no substantial evidence of provocation as to victim Holmes, and declined to so instruct as to her death.)\\nAs defendant observes, a sua sponte instruction on provocation and second degree murder must be given \\\"where the evidence of provocation would justify a jury determination that the accused had formed the intent to kill as a direct response to the provocation and had acted immediately\\\" to carry it out. (People v. Wickersham (1982) 32 Cal.3d 307, 329 [185 Cal.Rptr. 436, 650 P.2d 311].) Wickersham noted that \\\"the fact that heated words were exchanged or a physical struggle took place between the victim and the accused before the fatality may be sufficient to raise a reasonable doubt\\\" as to premeditation. (Ibid.) Defendant argues that because the trial court apparently found sufficient evidence to justify giving a provocation/ manslaughter instruction, then a fortiori there must have been enough evidence to instruct on second degree murder.\\nThe problem with defendant's analysis is that there was insufficient evidence of provocation to justify any instructions on that subject. Thus, the trial court's instruction on manslaughter was inappropriate and unnecessary, though obviously not prejudicial to defendant.\\nDefendant introduced no evidence whatever to support a defense of provocation, or to indicate he was relying on one. Instead, he attempted to mount an alibi defense, to cast suspicion on another acquaintance of Castro, and to impeach witness Fuller's incriminating testimony. A provocation defense would have been inconsistent with the foregoing denial of guilt. Under such circumstances, no sua sponte instruction was required. (People v. Wickersham, supra, 32 Cal.3d at p. 329; People v. Sedeno (1974) 10 Cal.3d 703, 716 [112 Cal.Rptr. 1, 518 P.2d 913].)\\nDefendant observes, however, that at an in-chambers conference with the court at close of trial, his counsel indicated he would also rely on a provocation defense, a defense that the jury might accept despite rejecting the alibi defense. Counsel cited the testimony of interrogating officer McCarthy that, according to defendant, Castro first became intoxicated and then became emotional and upset, complaining about being mistreated by men, \\\"hollering\\\" at defendant, and \\\"knocking things over,\\\" before finally going to sleep.\\nSignificantly, nothing in the portion of defendant's statement that was summarized by the testifying officer indicated any relevant effect on defendant's state of mind resulting from Castro's words or actions. Indeed, according to his statement, defendant was not provoked into killing Castro. Thus, the foregoing evidence would have given the jury no basis whatever for concluding that defendant \\\"formed the intent to kill as a direct response\\\" to Castro's conduct as required by Wickersham, supra, 32 Cal.3d at page 329. (See also People v. Morris (1991) 53 Cal.3d 152, 211, and fn. 12 [279 Cal.Rptr. 720, 807 P.2d 949] [no evidentiary basis for believing jury might have found adequate provocation].)\\nThe trial court likewise expressed its doubt that defendant's provocation evidence was \\\"substantial\\\" enough to justify a provocation/manslaughter instruction but nonetheless indicated it would give the instruction (only as to Castro) to avoid possible reversal on appeal. The court cited a reference in prosecution witness Fuller's testimony to the effect that defendant told her he had become \\\"upset\\\" with Castro. In fact, Fuller testified that, according to defendant, Castro became intoxicated and depressed, and that defendant became \\\"sick and tired of her . . . being depressed, so he hit her and knocked her out.\\\" We conclude that such meager evidence, suggesting passive conduct by Castro, and being contrary to defendant's own statement to the officers, would not be a sufficient basis for concluding that Castro actively provoked defendant into killing her.\\nDefendant contends that because the trial court instructed on provocation/ manslaughter, there must have been evidence to support a provocation/ second degree murder theory. We have previously rejected similar contentions. (People v. Payton (1992) 3 Cal.4th 1050, 1061 [13 Cal.Rptr.2d 526, 839 P.2d 1035]; People v. Pensinger (1991) 52 Cal.3d 1210, 1242 [278 Cal.Rptr. 640, 805 P.2d 899]; People v. Frierson (1979) 25 Cal.3d 142, 157 [158 Cal.Rptr. 281, 599 P.2d 587].)\\nWe conclude the trial court did not err in failing to instruct sua sponte on a provocation/second degree murder defense. In light of our conclusion, we need not consider whether defendant was prejudiced by the failure to instruct. We observe, however, that the evidence overwhelmingly supports a finding that both murders were premeditated, deliberate, and Unprovoked, being committed to facilitate a burglary of the victims' home, and to prevent them from identifying defendant as the burglar. (See, e.g., People v. Pride (1992) 3 Cal.4th 195, 247-248 [10 Cal.Rptr.2d 636, 833 P.2d 643] [finding evidence of premeditation based partly on victims' multiple stab wounds].)\\nI. Intent to Kill\\nIn Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal.Rptr. 79, 672 P.2d 862], we held that intent to kill was a necessary element of the felony-murder special circumstance, and in People v. Turner (1984) 37 Cal.3d 302 [208 Cal.Rptr. 196, 690 P.2d 669] we extended the Carlos holding to the multiple-murder special circumstance. We overruled both Carlos and Turner in People v. Anderson (1987) 43 Cal.3d 1104 [240 Cal.Rptr. 585, 742 P.2d 1306]. As to offenses committed after Carlos but before Anderson, however, due process and ex post facto principles demand that the intent-to-kill requirement apply to any felony-murder special circumstance charged in connection with such offenses. (See People v. Fierro (1991) 1 Cal.4th 173, 227 [3 Cal.Rptr.2d 426, 821 P.2d 1302]; People v. Duncan (1991) 53 Cal.3d 955, 973, fn. 4 [281 Cal.Rptr. 273, 810 P.2d 131]; In re Baert (1988) 205 Cal.App.3d 514, 516-522 [252 Cal.Rptr. 418].) The offenses involved here occurred in January 1986, during the foregoing \\\"window period\\\" between Carlos and Anderson.\\nPresumably, the foregoing constitutional concerns would likewise apply to the multiple-murder special circumstance alleged here. The Attorney General does not contend otherwise. Indeed, the People concede that Carlos error occurred here, and they contend that such error was harmless. (See People v. Harris (1989) 47 Cal.3d 1047, 1100 [255 Cal.Rptr. 352, 767 P.2d 619]; People v. Odle (1988) 45 Cal.3d 386, 414-415 [247 Cal.Rptr. 137, 754 P.2d 184].) Odle concluded that a harmless error analysis pursuant to Chapman v. California, supra, 386 U.S. at page 24 [17 L.Ed.2d at pages 710-711], is appropriate and constitutionally permissible in cases involving failure to instruct on an element of a special circumstance. Odle reasoned that there is no constitutional right to a jury trial on the issue of a defendant's eligibility for the death penalty, an issue which, but for the mandate of a state statute, would be a sentencing issue. (45 Cal.3d at pp. 411-412.)\\nAlthough defendant asserts that Odle, supra, 45 Cal.3d 386, was incorrectly decided, we have repeatedly declined to reexamine our holding in that case. (See, e.g., People v. Gonzalez (1990) 51 Cal.3d 1179, 1267 [275 Cal.Rptr. 729, 800 P.2d 1159]; People v. Harris, supra, 47 Cal.3d at p. 1100; see also People v. Cummings (1993) 4 Cal.4th 1233, 1302, and fn. 45, 1313-1314 [18 Cal.Rptr.2d 796, 850 P.2d 1] [acknowledging Odle's distinction between failure to instruct on element of an offense, and failure to instruct on element of a special circumstance allegation].)\\nOur review of the record confirms that the court indeed failed to instruct the jury that an intent to kill was a prerequisite to finding true the multiple-murder special circumstance. Moreover, we cannot necessarily infer such a finding from the jury's verdict or findings based on the court's other instructions. (See, e.g., People v. Duncan, supra, 53 Cal.3d 955, 973-974.) Although the jurors were instructed regarding premeditated murder and its intent element, they were also instructed on felony murder. Thus, although the issue of intent was not entirely removed from the jury's consideration (cf. United States v. Gaudin (9th Cir. 1993) 986 F.2d 1267), its finding of first degree murder did not necessarily include a determination that defendant intended to kill both of his victims.\\nBut as we explain, the evidence of defendant's intent to kill both victims was overwhelming, and the jury could have had no reasonable doubt on that matter. As in People v. Odle, supra, 45 Cal.3d at page 416, \\\"this is a case in which the facts overwhelmingly demonstrate that the instructional error was harmless.\\\" (See also People v. Harris, supra, 47 Cal.3d at p. 1100 [failure to instruct on intent to kill harmless where evidence of such intent overwhelming].)\\nThe dissent herein relies on Yates v. Evatt (1991) 500 U.S. 391 [114 L.Ed.2d 432, 111 S.Ct. 1884], disapproving language in an earlier case (Rose v. Clark (1986) 478 U.S. 570, 579 [92 L.Ed.2d 460, 471, 106 S.Ct. 3101]), relied on in part by Odle, supra, 45 Cal.3d at pages 413 through 414. But Yates' s criticism of Rose v. Clark was made in the context of determining the proper harmless error standard for rebuttable presumptions. (See 500 U.S. at pp. 402-403, fit. 8 [114 L.Ed.2d at p. 448].) Yates concerned the applicable harmless error test where the jury has been improperly instructed that an element of the offense (malice) could be presumed from certain facts (intentional commission of unlawful act, or use of a deadly weapon). Thus, if an intent to kill were an element of the offenses charged herein (rather than pertaining to the special circumstance finding), and if the jurors herein had been told that the defendant's intent to kill was presumed by reason of certain facts in the case, Yates would require the following showing in order to find the error harmless beyond a reasonable doubt under Chapman v. California, supra, 386 U.S. at p. 24 [17 L.Ed.2d at pp. 710-711]:\\n\\\"[T]he issue under Chapman is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption. Since that enquiry cannot be a subjective one into the jurors' minds, a court must approach it by asking whether the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption.\\\" (500 U.S. at pp. 404-405 [114 L.Ed.2d at p. 449, 111 S.Ct. at pp. 1893-1894], italics added; see also Sullivan v. Louisiana (1993) _ U.S. _ [124 L.Ed.2d 182, 188-189, 113 S.Ct. 2078, 2081] [Chapman test requires finding jury's guilty verdict \\\"surely unattributable\\\" to error; faulty instructions on reasonable doubt deemed reversible per se].)\\nIn the present case, the jurors were not told to apply any improper presumptions as to the intent-to-kill issue. Accordingly, the test of Yates v. Evatt, supra, seemingly would be inapplicable here. But, as will appear, even were we to apply that test, we would conclude that the evidence before the jury was so overwhelming as to leave it beyond a reasonable doubt the verdict would have been the same had the jury been instructed regarding the necessity of finding an intent to kill.\\nWe briefly review the evidence as it bore on the intent issue:\\n1. Victim Castro's murder\\nDefendant strangled Castro to death with a telephone wire and set her room, and probably her body, afire. The method of execution itself precludes any inference the murder was accidental or unintentional. As we have repeatedly held, \\\"this method of killing [strangulation] is indicative of at least a deliberate intent to kill. [Citations.]\\\" (People v. Hernandez, supra, 47 Cal.3d at p. 349.)\\nThe jury's first degree murder finding reflected the jury's determination that Castro's murder was either (1) premeditated, (2) committed in the course of a burglary, requiring a preexisting specific intent to steal, and/or (3) committed in the course of a rape. On this record, the only reasonable conclusion one can draw from the evidence and the jury's findings is that defendant intentionally murdered Castro to facilitate his escape and preclude his apprehension after raping her and/or stealing her jewelry. Defendant, relying on an alibi defense, introduced no evidence which would have justified a finding of unintentional homicide.\\n2. Victim Holmes's murder\\nAs for Holmes, defendant admitted that she became aware of his presence in the house with Castro on the night of the murders. According to witness Fuller, defendant admitted \\\"hitting\\\" Holmes after she came upstairs to inquire about Castro, who was already unconscious from defendant's assault on her. The evidence shows that defendant stole Holmes's jewelry and beat her to death by kicking her 10 to 12 times in her face and head. As we have explained, there was no substantial evidence that Holmes provoked the assault. Once again, the methodical method of execution would preclude any inference the killing was accidental or unintentional. (See People v. Pride, supra, 3 Cal.4th at p. 247 [multiple stab wounds consistent with finding of premeditated murder]; People v. Hernandez, supra, 47 Cal.3d at p. 350 [\\\"calculated\\\" rather than \\\"random\\\" method of killing may be indicative of premeditated murder]; People v. Anderson, supra, 70 Cal.2d at p. 27 [\\\"exacting\\\" manner of killing indicative of premeditated murder].) Again, the only reasonable conclusion the jury could have drawn was that defendant, after killing Castro, then killed Holmes to facilitate his escape and preclude his apprehension.\\nWe conclude that the error in failing to instruct on intent to kill with respect to Castro and Holmes was harmless beyond a reasonable doubt.\\nIV.\\nPenalty Phase Issues\\nA. Instruction on Witness's False Testimony\\nAt the penalty phase, the court instructed the jury, based on CALJIC No. 2.21 (4th ed. 1979), that the testimony of a witness who makes a willfully false statement on a material point could be disregarded in its entirety, unless \\\"the probability of truth favors his testimony in other particulars.\\\" Defendant contends such instruction, commonly used at the guilt phase to assist the jury in its fact-finding function (see, e.g., People v. Allison (1989) 48 Cal.3d 879, 895 [258 Cal.Rptr. 208, 771 P.2d 1294]), is inappropriate at the penalty phase because of the subjective, nonfactual nature of the jury's \\\"normative\\\" penalty decision. Defendant notes the instruction refers to \\\"material\\\" testimony, a description he suggests is inappropriate to much penalty phase testimony.\\nAlthough we have found no cases expressly approving the use of the foregoing instruction at the penalty phase, one case implicitly recognizes that the instruction would be appropriate at both phases of a capital trial. (See People v. Gates (1987) 43 Cal.3d 1168, 1209 [240 Cal.Rptr. 666, 743 P.2d 301] [observing that witness credibility instructions, such as CALJIC No. 2.21, by their very terms are not specifically limited to the issue of guilt or innocence].) Such a conclusion seems reasonable, given the admissibility of penalty phase testimony on a variety of factual matters, including \\\"other crimes\\\" evidence. (See \\u00a7 190.3.)\\nIn the present case, the People presented an array of penalty-phase witnesses attesting to various prior violent acts by defendant. The defense likewise called witnesses to testify to factual matters, including additional facts to rebut the prosecution's \\\"other crimes\\\" evidence, and testimony concerning defendant's childhood and background. We see no reason why an instruction based on CALJIC No. 2.21 should not be given to assist the jury in appraising the credibility of penalty phase testimony, where appropriate under the evidence.\\nB. Failure to Instruct on Elements of Other Crimes\\nAt the penalty phase, the prosecutor introduced evidence of numerous prior unadjudicated offenses by defendant. (See \\u00a7 190.3, subd. (b).) The record indicates that defense counsel joined the prosecutor in stipulating that, for tactical reasons, it was unnecessary to instruct the jury regarding the elements of these various offenses. Defendant now claims the trial court nonetheless erred, under both federal and state law, in failing to so instruct sua sponte. The point is wholly without merit.\\nFirst, on this record, any error in failing to instruct regarding the elements of defendant's prior crimes would be deemed invited error. (See People v. Cooper (1991) 53 Cal.3d 771, 827-831 [281 Cal.Rptr. 90, 809 P.2d 865].) We reject defendant's related assertions that counsel's tactical decision to forgo detailed \\\"other crimes\\\" instructions (1) required defendant's personal waiver, or (2) amounted to incompetent representation. (See id. at pp. 827-828 [no personal waiver required], 831-832 [counsel's waiver not incompetence]; see also People v. Tuilaepa (1992) 4 Cal.4th 569, 592 [15 Cal.Rptr.2d 382, 842 P.2d 1142].)\\nSecond, we have held that, because defense counsel might not want the jury to place undue emphasis on the defendant's prior offenses, the court is not required to give such instructions sua sponte. (See People v. Phillips (1985) 41 Cal.3d 29, 72-73, fn. 25 [222 Cal.Rptr. 127, 711 P.2d 423].) Although defendant asks us to reconsider Phillips, we have frequently relied on its holding and see no reason for reconsideration. (See, e.g., People v. Tuilaepa, supra, 4 Cal.4th at p. 592; People v. Hardy, supra, 2 Cal.4th at pp. 206-207; People v. Pensinger, supra, 52 Cal.3d at p. 1267; People v. Clark (1990) 50 Cal.3d 583, 627 [268 Cal.Rptr. 399, 789 P.2d 127].)\\nC. Failure to Instruct Sua Sponte on Use of \\\"Other Crimes\\\" Evidence\\nDefendant contends the court erred in failing to instruct sua sponte (based on CALJIC No. 2.50) that the penalty phase jury should not use the \\\"inference of criminal propensity drawn from proof of one incident of unadjudicated conduct as proof of the truth of the allegations of another such incident.\\\" (See People v. Thompson (1980) 27 Cal.3d 303, 317 [165 Cal.Rptr. 289, 611 P.2d 883]; Evid. Code, \\u00a7 1101, subd. (a).) We disagree.\\nGenerally, the court owes no obligation to instruct on the limited purposes for which evidence of prior crimes is admissible. (See People v. Collie (1981) 30 Cal.3d 43, 64 [177 Cal.Rptr. 458, 634 P.2d 534, 23 A.L.R.4th 776].) Defendant acknowledges the general rule, but argues that it should be inapplicable at the penalty phase of a capital case. In light of the instructions that were given here, we fail to discern a need for such a sua sponte instruction.\\nIn the present case, the jury was told that (1) evidence of various specified criminal acts had been presented, (2) before the jury could use evidence of any such offense as an aggravating circumstance, it must find beyond a reasonable doubt that such offense occurred, and (3) except for such offenses, the jury \\\"may not consider any evidence of any other criminal acts as an aggravating circumstance.\\\" We think the foregoing instructions sufficed to inform the jury of its responsibility to differentiate between the various offenses. Under these instructions, no reasonable juror would have concluded that proof of one offense could assist in proving another offense beyond a reasonable doubt.\\nWe also reject defendant's related contention that counsel's failure to request a limiting instruction on the prior offenses reflected his incompetence. As previously indicated, counsel may have deemed it tactically unwise to call further attention to defendant's prior offenses .by requesting special instructions. (See People v. Phillips, supra, 41 Cal.3d at p. 73, fn. 25; cf. People v. Pensinger, supra, 52 Cal.3d at p. 1267.)\\nD. Failure to Instruct Sua Sponte on Meaning of \\\"Aggravating\\\" and \\\"Mitigating\\\"\\nDefendant asserts the court erred in failing to define the terms \\\"aggravating\\\" and \\\"mitigating\\\" to assist the jury in determining penalty. We have held that the court need not give such instructions, even on defendant's request. (See People v. Malone (1988) 47 Cal.3d 1, 55 [252 Cal.Rptr. 525, 762 P.2d 1249].) It follows that no sua sponte instructions were required in this case.\\nE. Failure to Give Timely Notice of Aggravating Evidence\\nDefendant contends the prosecutor delayed unduly in presenting the defense with the required notice of aggravating evidence the People intended to rely on during the penalty phase. (See \\u00a7 190.3.) The record shows that the prosecutor initially filed such a notice on December 22, 1986. Defendant observes that this notice referred to nine prior unadjudicated offenses and four prior felony convictions. Thereafter, on June 2, 1987, after the case was assigned for trial but before jury selection, the People filed an \\\"addendum,\\\" adding 10 more incidents of prior criminal activity. On September 23, 1987, one week prior to commencement of jury selection, the People filed an \\\"amended notice,\\\" adding 20 additional unadjudicated incidents, but referring to only 3 prior felony convictions. Finally, on September 25, the People submitted its \\\"second amended notice,\\\" adding a reference to the fourth criminal conviction.\\nAccording to defendant, the three notices filed after March 5, 1987, when the case was assigned from the master criminal calendar for trial, were untimely. In addition, the People allegedly never gave notice of one incident presented at the penalty phase, namely, defendant's assault on an inmate, James Fox.\\nThe People are required to notify defendant of the intended penalty phase evidence \\\"within a reasonable period of time as determined by the trial court, prior to trial.\\\" (\\u00a7 190.3.) We have held that the phrase \\\"prior to trial\\\" should be construed as \\\"before the cause is called for trial.\\\" (People v. Daniels (1991) 52 Cal.3d 815, 879 [277 Cal.Rptr. 122, 802 P.2d 906].) Daniels, however, did not explain precisely when a case may be deemed \\\"called\\\" for trial. Although the Attorney General has not raised the point, it is arguable that a master calendar assignment should not be deemed \\\"calling\\\" a case for trial. Here, all of the notices were filed prior to the commencement of jury selection, and defendant failed to request a continuance, thereby indicating that the timing of the notices was not prejudicial to the defense. (See People v. Cooper, supra, 53 Cal.3d at p. 842; People v. Walker (1988) 47 Cal.3d 605, 637 [253 Cal.Rptr. 863, 765 P.2d 70].)\\nIn any event, the People observe that defendant failed to object to any of the notices at issue, or to object to any penalty phase evidence on the ground of untimeliness of the notice thereof, omissions which bar appellate consideration of the issue. (See, e.g., People v. Mickey (1991) 54 Cal.3d 612, 685 [286 Cal.Rptr. 801, 818 P.2d 84]; People v. Cooper, supra, 53 Cal.3d at p. 842.) Defendant's suggestion that his counsel's failure to raise such objection or request a continuance reflected his incompetence is meritless in light of the possible tactical considerations involved in such a decision. Counsel may well have concluded that such an objection or request for continuance could only serve to alienate the trial court or jury without necessarily securing any advantage for his client.\\nF. Admission of Evidence Underlying Prior Offenses\\nDefendant contends the court erred in allowing the admission of evidence regarding defendant's prior offenses (see \\u00a7 190.3), including (1) evidence underlying a prior robbery conviction, and (2) evidence of two unadjudicated offenses on which the statute of limitations had run. Defendant realizes we have repeatedly rejected similar contentions (see, e.g., People v. Jennings, supra, 53 Cal.3d at p. 388 [barred offenses admissible at penalty phase]; People v. Mattson (1990) 50 Cal.3d 826, 877 [268 Cal.Rptr. 802, 789 P.2d 983] [evidence underlying prior conviction admissible at penalty phase]), and he offers no convincing reasons for reconsidering those rulings. Defendant's assertion that equal protection principles may preclude reliance on the foregoing evidence (see People v. Guerrero (1988) 44 Cal.3d 343 [243 Cal.Rptr. 688, 748 P.2d 1150]) is likewise without merit. (See People v. Danielson (1992) 3 Cal.4th 691, 719-720 [13 Cal.Rptr.2d 1, 838 P.2d 729]; People v. Bacigalupo (1991) 1 Cal.4th 103, 136 [2 Cal.Rptr.2d 335, 820 P.2d 559], on remand (1992) _ U.S. _ [121 L.Ed.2d 5, 113 S.Ct. 32].)\\nG. Failure to Instruct on Sentencing Discretion\\nDefendant contends the court erred in failing to instruct the jury that it could impose a sentence of life imprisonment without parole even if it found no mitigating evidence whatever. (See People v. Duncan, supra, 53 Cal.3d at p. 979 [jury may determine \\\"even in the absence of mitigating evidence\\\" that the aggravating evidence is insubstantial].) We disagree.\\nThe jury was instructed that it should consider, take into account, and be guided by the applicable aggravating and mitigating factors; that the weighing process does not mean \\\"a mere mechanical counting of factors on each side of an imaginary scale, or the arbitrary assignment of weights to any of them\\\"; and that the jury is \\\"free to assign whatever moral or sympathetic value you deem appropriate to each and all of the various factors . . . .\\\" The jury was further told to \\\"determine under the relevant evidence which penalty is justified and appropriate by considering the totality of the aggravating circumstances with the mitigating circumstances. . To return a judgment of death, each of you must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it [sic] warrants death instead of life without parole.\\\"\\nFirst, defendant does not suggest the foregoing instructions were incorrect, but only that they were inadequate. Yet defendant failed to request clarifying instructions, an omission which bars appellate review of the issue. (See, e.g., People v. Hardy, supra, 2 Cal.4th at p. 153; People v. Sully (1991) 53 Cal.Sd 1195, 1218 [283 Cal.Rptr. 144, 812 P.2d 163].)\\nIn any event, we believe the foregoing instruction adequately advised the jury of its sentencing responsibilities. No reasonable juror would assume he or she was required to impose death despite insubstantial aggravating circumstances, merely because no mitigating circumstances were found to exist. Indeed, it seems unlikely the jury would conclude that mitigating circumstances were entirely lacking in this case: the defense introduced substantial evidence in mitigation.\\nH. Death Penalty Statute Not Unconstitutional\\nDefendant asserts the 1978 death penalty law is unconstitutional in a number of respects. We have repeatedly rejected each of the arguments raised by defendant, and we need not discuss them here. (See, e.g., People v. Tuilaepa, supra, 4 Cal.4th at pp. 594-595; People v. Danielson, supra, 3 Cal.4th 691, 730-731, and cases cited; People v. Mincey (1992) 2 Cal.4th 408, 475 [6 Cal.Rptr.2d 822, 827 P.2d 388].)\\nI. Consideration of Additional \\\"Other Crimes\\\" Evidence\\nDuring the penalty phase, evidence was introduced, without objection by defendant, regarding certain prior criminal activity that did not qualify as aggravating evidence under section 190.3, subdivision (b). For example, mitigating \\\"background\\\" testimony by defendant and his relatives was rebutted on cross-examination by eliciting from these witnesses the fact that defendant had committed numerous burglaries before reaching age 16.\\nBecause the foregoing evidence of defendant's juvenile burglaries was not admissible under section 190.3, the trial court instructed th\\u00e9 jury that this evidence could be considered only in rebuttal of defendant's mitigating evidence \\\"or as evidence of the absence of mitigating or extenuating circumstances raised by the defendant . . . .You may not consider evidence of such other criminal acts for any other purpose.\\\"\\nDefendant first contends the foregoing instruction was too broad, permitting the jury to consider defendant's nonviolent misconduct even though it did not truly \\\"rebut\\\" evidence of defendant's troubled childhood. (See People v. Rodriguez (1986) 42 Cal.3d 730, 792, fn. 24 [230 Cal.Rptr. 667, 726 P.2d 113] [scope of rebuttal must be specific; evidence must relate to particular incident or character trait relied on by defendant].) But the instruction correctly limited the jury's consideration to rebuttal evidence, leaving it to the jury (guided perhaps by counsel's closing arguments) to decide whether the proffered evidence indeed rebutted any evidence elicited by defendant. If defendant believed the instruction was unclear or incomplete, he had the obligation to request clarifying language. (See People v. Sully, supra, 53 Cal.3d 1195, 1218.)\\nNext, defendant contends the instruction improperly allowed the jury to consider his juvenile burglaries as evidence of the absence of mitigating evidence, contrary to the rule in People v. Davenport (1985) 41 Cal.3d 247, 288-290 [221 Cal.Rptr. 794, 710 P.2d 861], Davenport, however, dealt with a different problem, namely, the impropriety of prosecutorial argument characterizing as an aggravating factor the absence of particular mitigating factors, such as the defendant's mental defect or disease. By its terms, the challenged instruction did not permit the jury to treat defendant's juvenile burglaries as a negative mitigating factor. Properly construed, thq challenged instruction simply would allow consideration of any evidence of defendant's prior criminal conduct that called in question the existence of a mitigating circumstance \\\"raised by the defendant.\\\" Once again, defendant had the obligation to request any appropriate clarifying language. (People v. Sully, supra, 53 Cal.3d at p. 1218.)\\nIn the present case, defendant does not suggest the prosecutor either committed Davenport error or urged the jury to use defendant's juvenile burglaries for any improper purpose. We conclude the court did not err in giving the challenged instruction.\\nJ. Ruling Denying Modification of Sentence\\nAfter the jury returned its death verdict, defendant moved the court to modify the sentence to life imprisonment without parole. The court denied the motion, stating in part that defendant's purported mitigating background and character evidence did not extenuate the gravity of the crime, and that \\\"any sympathetic or other aspect of defendant's character could not in any way be considered a moral justification or extenuation for his conduct, or serve as a basis for a sentence of less than death.\\\" The court also found that \\\"there were no factors in mitigation,\\\" and that \\\"the absence of these factors weighs against a finding the offense is . . . less serious than normal.\\\"\\nDefendant contends the court's foregoing remarks indicate it erroneously (1) believed defendant had introduced no mitigating evidence in the case, and (2) failed to consider defendant's proffered mitigating evidence in ruling on the motion to modify sentence. We disagree. The court carefully outlined its obligation to consider all the evidence submitted to the jury, and expressly acknowledged that defendant had introduced \\\"background\\\" evidence intended to mitigate the offense, including the fact he was raised in a poor and culturally deprived environment. But the court determined that such evidence failed to extenuate or mitigate the sentence. Read in context, the court's words merely reflect its view that no significant mitigating evidence had been adduced, and that such evidence was insufficient to extenuate defendant's crime or justify a life sentence. We have frequently rejected claims of error based on similar remarks by trial courts in denying motions to modify sentence. (See, e.g., People v. Stansbury (1992) 4 Cal.4th 1017, 1070-1071 [17 Cal.Rptr.2d 174, 846 P.2d 756]; People v. Daniels, supra, 52 Cal.3d at pp. 892-893; People v. Kaurish (1990) 52 Cal.3d 648, 716-718 [276 Cal.Rptr. 788, 802 P.2d 278]; People v. Whitt (1990) 51 Cal.3d 620, 659-660 [274 Cal.Rptr. 252, 798 P.2d 849].)\\nThe judgment is affirmed in its entirety.\\nPanelli, J., Kennard, J., Arabian, J., Baxter, J., and George, J., concurred.\"}"
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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.\"}"
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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.\"}"
\ No newline at end of file
diff --git a/cal/2018717.json b/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.\"}"
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diff --git a/cal/2038460.json b/cal/2038460.json
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--- /dev/null
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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.)\"}"
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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.\"}"
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+"{\"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\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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diff --git a/cal/2067660.json b/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.\"}"
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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.\"}"
\ No newline at end of file
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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.\"}"
\ No newline at end of file
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--- /dev/null
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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.\"}"
\ No newline at end of file
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index 0000000000000000000000000000000000000000..db47c6a1b03f0d1aa7de1f4c6f9c7738c386995b
--- /dev/null
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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.\"}"
\ No newline at end of file
diff --git a/cal/2108487.json b/cal/2108487.json
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index 0000000000000000000000000000000000000000..0a0ba851978cc72ce377350e9131510d67bb2b5b
--- /dev/null
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
\ No newline at end of file
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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.\"}"
\ No newline at end of file
diff --git a/cal/2210204.json b/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.\"}"
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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.\"}"
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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.\"}"
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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]).\"}"
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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; \\\"\"}"
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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.\"}"
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+"{\"id\": \"2248101\", \"name\": \"MARY CASSIDY, Petitioner, v. J. F. SULLIVAN, Judge of the Superior Court of the City and County of San Francisco\", \"name_abbreviation\": \"Cassidy v. Sullivan\", \"decision_date\": \"1883-10-30\", \"docket_number\": \"\", \"first_page\": \"266\", \"last_page\": \"267\", \"citations\": \"64 Cal. 266\", \"volume\": \"64\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T21:11:28.084344+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MARY CASSIDY, Petitioner, v. J. F. SULLIVAN, Judge of the Superior Court of the City and County of San Francisco.\", \"head_matter\": \"[Department Two.\\nOctober, 30, 1883.]\\nMARY CASSIDY, Petitioner, v. J. F. SULLIVAN, Judge of the Superior Court of the City and County of San Francisco.\\nDivorce\\u2014Triad by Jury\\u2014Constitutional Law.\\u2014In a suit for divorce, a trial by jury cannot be demanded as a matter of right under the Constitution.\\nApplication for a writ of mandate.\\nThe facts are stated in the ouinion of the court.\\nTyler & Tyler, for Petitioner.\\nCope & Boyd, for Respondent.\", \"word_count\": \"580\", \"char_count\": \"3192\", \"text\": \"Per Curiam.\\nThis is an application for a writ to compel the respondent, judge of the Superior Court, to have the issues of fact in a divorce case pending in said court tried by a jury. The clause of the Constitution mainly relied on reads as follows: \\\" The right of trial by jury shall be secured to all and remain inviolate.\\\" (Const, art. i., \\u00a7 7.) This implies the existence of the right. To secure is not to create or acquire, but \\\"to make safe; to relieve from apprehensions of or exposure to danger; to guard, to protect.\\\"\\u2014Webster. Under the provisions of other constitutions and statutes quite as broad as the clause above cited, it has uniformly been held that the right to trial by jury was not intended to be extended to cases in'which the right did not exist at common law. And the counsel for petitioner concedes that this has become too well established as to equity cases to admit of a change of the rule in that respect by the courts.\\nBut the counsel insists that an action of divorce is not a case in equity, and cites the clause of the Constitution which confers jurisdiction on Superior Courts to show that actions of divorce are mentioned separately, as if they were different and distinct from cases in equity. Admitting all that he claims in this respect, it by no means follows that the right of trial by jury is given in divorce cases. The right is denied in equity cases, not because they are equity cases, but because no such right ever existed in equity cases; and by parity of reasoning it should be denied in divorce cases because no such right ever existed in divorce cases. In Koppihus v. State Capitol Commissioners, 16 Cal. 248, the court, Field, C. J., delivering the opinion, said: \\\"The provision of the Constitution that 'the right of trial by jury shall be secured to all, and remain inviolate forever/ applies only to civil and criminal cases in which an issue of fact is joined. The language Avas used with reference to the right as it exists at common Iuav.....It is in this common law sense that the language has always been regarded by the courts of this State. It is a right f secured to all/ and inviolate forever, in cases in Avhich it is exercised in the administration of justice according to the course of the common law, as that law is understood in the several States of the Union. It is a right, therefore, which.can only be claimed in actions at law or in criminal actions where an issue of fact is made by the pleadings.\\\" It is, therefore, quite immaterial whether an action of divorce be a case in equity or not, so long as it is a case in which the right of trial by jury did not exist at common law, or otherwise. The clause of the Constitution relied on does not apply to it.\\nApplication denied.\"}"
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+"{\"id\": \"2251804\", \"name\": \"ELMER J. WILES, Appellant, v. STATE PERSONNEL BOARD et al., Respondents\", \"name_abbreviation\": \"Wiles v. State Personnel Board\", \"decision_date\": \"1942-02-02\", \"docket_number\": \"Sac. No. 5490\", \"first_page\": \"344\", \"last_page\": \"353\", \"citations\": \"19 Cal. 2d 344\", \"volume\": \"19\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T01:45:35.703946+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ELMER J. WILES, Appellant, v. STATE PERSONNEL BOARD et al., Respondents.\", \"head_matter\": \"[Sac. No. 5490.\\nIn Bank.\\nFeb. 2, 1942.]\\nELMER J. WILES, Appellant, v. STATE PERSONNEL BOARD et al., Respondents.\\nAlbert E. Sheets and Anthony J. Kennedy for Appellant.\\nEarl Warren, Attorney General, and Wilmer W. Morse and Bayard Rhone, Deputies Attorney General, for Respondents.\", \"word_count\": \"3004\", \"char_count\": \"18455\", \"text\": \"CURTIS, J. \\u2014\\nPetitioner has appealed from a judgment of the trial court refusing to grant a writ of mandamus to require respondents to reinstate him to the permanent position of Personnel Record Officer of the California National Guard, with full and permanent civil service status therein, and to pay his fixed salary of $140 per month from March 4, 1939.\\nOn March 1, 1938, petitioner received a temporary appointment to the position in question. On August 13, 1938, after qualifying by examination, he was appointed to the permanent position. This appointment was subject to a probationary period of six months under rule nine, section 1, of the Rules and Regulations of the State Personnel Board. On September 11, 1938, while engaged in the performance of the duties of his position, petitioner sustained a back injury, which caused his hospitalization from that date, to October 24, 1938. Upon the advice and at the direction of his superiors, petitioner continued to perform a part of his official duties while he was confined in the hospital. During this period petitioner did not receive his salary but was paid disability compensation from the State Compensation Insurance Fund. After dismissal from the hospital petitioner continued to perform the duties of his position until February 10, 1939. On that date the new Adjutant General, who had taken office on January 4, 1939, served petitioner with a letter dated February 9, 1939, advising him that his services would be terminated on March 4, 1939. This letter contained the reasons for rejection, as required by section 122 of the State Civil Service Act, and a copy was sent to the Personnel Board and received by it on February 11, 1939. A Report of Separation and a Report of Performance were filed with the Personnel Board on February 20, 1939. Neither of these reports was served on petitioner. Petitioner was paid up to and including the 3rd day of March, 1939, although he was prohibited from performing the duties of his position from February 10, 1939.\\nOn this appeal it is contended that there was no rejection of the services of petitioner within the probationary period, and further, that the appointing authority did not comply with the statutory method of dismissal.\\nThe probationary period began on August 13, 1938. Without interruption that period of probationary service normally would have been terminated on February 12, 1939. There was, however, a six-week period in which petitioner was hospitalized. Therefore, the first question to be determined is whether the date of termination of the probationary period was extended to March 20, 1939, because of the period of hospitalization.\\nThe object and purpose of a probationary period is to supplement the work of the civil service examiners in passing on the qualifications and eligibility of the probationer. During such period the appointive power is given the opportunity to observe the conduct and capacity of the probationer, and if, in the opinion of that power, the probationer is not fitted to discharge the duties of the position, then he may be discharged by the summary method provided for in the Civil Service Act before he acquires permanent civil service status. [See Neuwald v. Brock, 12 Cal. (2d) 662, 670 [86 Pac. (2d) 1047]; Note: 131 A. L. R. 383.]\\nIn the instant ease the record discloses that petitioner's superiors, General Morehead, who was at that time the Adjutant General, and Colonel Arndt, the executive officer of the National Guard, came to visit petitioner in the hospital soon after the accident and made arrangements whereby he was to carry on the duties of his office. During the period petitioner kept in daily contact with his office by telephone and in this way continued to supervise the work being done in the office. Office correspondence was brought out to petitioner by messenger service. Some dictation was given by petitioner at the hospital relative to office matters, and other work was written out in longhand by petitioner, sent to the office, typed and returned to petitioner for his signature. An electric adding machine was furnished petitioner so that he could continue to audit current accounts. General More-head and Colonel Arndt came to the hospital frequently' and General Morehead testified that petitioner performed the duties of his office satisfactorily. The trial court found \\\"that it is true that during the period of said confinement at said hospital petitioner as said Personnel Record Officer and as ordered and directed by and acting under the supervision of the adjutant general of the State of California, performed part but not all of his duties.\\\"\\nFrom these facts it is clear that the purposes and objects of the probationary period were fulfilled during the time petitioner was in the hospital. Under such circumstances that time should not be deducted from the probationary service. This conclusion should not be interpreted to mean that in every case the probationary period terminates after six months' elapsed time from the date of appointment. It is possible, as urged by respondents, that a situation might arise in which a probationer because of illness would be forced to sever all relations with his office and duties a few days after his appointment. If such absence continued for a period of six months, the purpose of the probationary period would be defeated if that period were held to be terminated after six months' actual elapsed time from the date of appointment. In such a situation the time spent away from the position should not be included in determining the termination of the probationary period. However, as previously shown, petitioner here continued to do his work under direct supervision of the appointive power during his absence from the office. His work while in the hospital met the approval of General Morehead, the adjutant general, who immediately upon petitioner's recovery from his injury continued him in the position to which he had been appointed. It thus appears that full opportunity to observe petitioner's conduct during his entire probationary period was afforded his superiors.\\nThe fact that petitioner did not receive his salary but received disability compensation during the period of hospitalization is not necessarily determinative of the question of whether he performed services during that period. The record is not entirely clear on the question of compensation. There is evidence and, in fact, the attorney for petitioner stipulated that \\\"he [petitioner] received compensation,\\\" but the attorney stated that he didn't know whether it was for total disability. Petitioner himself, in answer to a question as to whether he received compensation for total disability, stated that he didn't know. Respondents didn't introduce any documentary evidence of a rating or an award by the Industrial Accident Commission. There being no evidence that the commission had determined after a hearing that petitioner was totally disabled, the trial court was free to find that petitioner had performed some of the duties of his position while he was in the hospital. The court did so find, and this finding is supported by undisputed evidence.\\nRespondents also contend that petitioner, having accepted compensation, is estopped from asserting that he performed the duties of his position during the period of hospitalization. Here again, the contention is based on the assumption that petitioner knowingly accepted compensation for total disability. As previously stated, this assumption is not supported by the evidence. If a claim were now being made for salary for the time spent in the hospital, respondents might properly plead estoppel, but here petitioner is simply asserting that he performed sufficient of the duties of his position while in the hospital to include that time as a part of his probationary service. Under such circumstances and keeping in mind the purpose of the probationary period, there appears to be no place for an estoppel argument.\\nOur conclusion that the time spent in the hospital should not be deducted from the period of probationary service in no way conflicts with any statements made in the case of Ballf v. Civil Service Commission, 43 Cal. App. (2d) 211 [110 Pac. (2d) 478], cited by respondents. The principal statement in that case relied on by respondents is the following, at p. 216: \\\"The unequivocal language used in section 148 [a section of the Charter of the City of San Francisco similar to Section 118 of the State Civil Service Act and the rules adopted thereunder] shows, however, that actual service, rather than constructive, is required.\\\" Such statement has no application to the instant situation, for here there is no question of constructive service, but, as previously discussed, petitioner performed the actual duties of his position during the period of hospitalization.\\nHaving concluded that the period of probationary service terminated on February 12, 1939, the question remains whether petitioner was properly rejected on or before that date. The letter of rejection dated February 9, 1939, and served on petitioner on February 10, 1939, opened with the sentence \\\"Effective March 4, 1939, your services as Personnel Officer, California National Guard, will be terminated.'' [Italics added.] The reasons for termination were then stated and the letter concluded with the following sentence: \\\"You will be allowed your accumulated vacation from February 10th to March 3, 1939, inclusive.\\\" Petitioner argues that this notice of rejection, although given before the termination of the probationary service on February 12, 1939, was not made effective until after that date or on March 4, 1939, and that therefore he became a permanent employee, subject to dismissal only by the procedure provided for under section 173 of the Civil Service Act, which procedure was admittedly not followed.\\nIn view of the italicized portion of the opening sentence, there would seem to be little that could be said in opposition to petitioner's contention. However, respondents contend and the trial court concluded that petitioner was rejected on February 9, 1939. In support of this contention and conclusion respondents refer to rule thirteen, section 1, of the Rules and Regulations of the State Personnel Board, which provides, in part, that after six months of continuous service a civil service employee is entitled to a vacation on the basis of one and one-quarter working days for each month or major portion of a month of service up to the first of January next following the completion of such six months of service, and thereafter a vacation of fifteen working days per year. Under this rule it is claimed that petitioner, having commenced work on a temporary basis on March 1, 1938, was entitled to fifteen days' vacation time. Reference is then made to the last sentence of the letter of rejection, which stated: \\\"You will be allowed your accumulated vacation from February 10th to March 3, 1939, inclusive.\\\" It is then argued that the rejection was effective immediately, i. e., on February 9, 1939, but that it, of necessity, had to be phrased in the future tense because of the accumulated vacation period. Petitioner challenges the number of days' vacation to which respondents assert he was entitled; however, that issue need not be decided here. Regardless of the accumulated vacation time, the fact is that petitioner's services were not terminated until after February 12, 1939, the final day of the probationary period. The notice of rejection on February 9, 1939, did not state: \\\"Your services are terminated.\\\" It stated: \\\"Effective March 4, 1939, your services . . . will be terminated.\\\" The roster card listed the date of dismissal as March 4, 1939. The Report of Separation stated March 4, 1939, as the date of separation from service. Petitioner was paid salary upon pay rolls on which he was certified as holding his position under civil service until March 4, 1939. No amount of argument can change the future tense to the present tense so that the rejection may be deemed to have been made prior to the termination of the probationary period. If notice of a future dismissal within the six months ' probationary period were all that was required under section 122 of the Civil Service Act, then the probationary status could be extended indefinitely. Assuming that petitioner did have some vacation time coming, such fact would not have prevented a present rejection on February 10, 1939. The question of a probationer's right to accumulated vacation time on dismissal is not directly before us on.this appeal because petitioner is not claiming that he was deprived of any vacation time. However, it might be observed in this regard that there seems to be no reason why a state employee at the time of his dismissal could not properly claim a sum equivalent to the accumulated vacation time due him. Section 150 of the Civil Service Act and the rules of the Personnel Board established thereunder become a part of the contract of employment, and after the time of service required, the vacation period or the money equivalent thereof becomes a right under the terms of his employment.\\nIt may be true that respondent Farrell intended an immediate rejection on February 9, 1939, but, as previously pointed out, there was no such rejection accomplished by the notice given. A civil service probationer is entitled to have the statutory procedure for dismissal strictly followed. (Brown v. State Personnel Board, 43 Cal. App. (2d) 70 [110 Pac. (2d) 497]; Nilsson v. State Personnel Board, 25 Cal. App. (2d) 699 [78 Pac. (2d) 467].) The procedure here required rejection within the six months ' probationary period. This procedure was not followed and the mere intent to dismiss within the period was not sufficient. A rejection not having been accomplished within the probationary period, no dismissal was effected. (Brown v. State Personnel Board, supra; Kelly v. State Personnel Board, 31 Cal. App. (2d) 443 [88 Pac. (2d) 264].) Therefore, the trial court erred in refusing to issue the writ of mandate ordering petitioner's reinstatement.\\nPetitioner has asked for his accrued salary from March 4, 1939. The record fails to disclose what other employment, if any, petitioner has engaged in subsequent to that date. If he has had some gainful employment, it is only equitable and just that any remuneration received from such employment be deducted from the accrued salary due him. [See Kelly v. State Personnel Board, supra.]\\nFor the foregoing reasons the judgment and order appealed from are reversed and the trial court is ordered to issue its writ of mandate requiring the reinstatement of petitioner with accrued salary from March 4, 1939, less any sums received by petitioner as salary from employment subsequent to that date. What sums, if any, petitioner has received should be determined by further appropriate proceedings in the trial court.\\nShenk, J., Houser, J., Carter, J., concurred.\"}"
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diff --git a/cal/2253855.json b/cal/2253855.json
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+"{\"id\": \"2253855\", \"name\": \"ALONZO O. COFFMAN, Respondent, v. D. C. CROOKSHANK, Appellant\", \"name_abbreviation\": \"Coffman v. Crookshank\", \"decision_date\": \"1934-07-26\", \"docket_number\": \"Civ. No. 8539\", \"first_page\": \"192\", \"last_page\": \"194\", \"citations\": \"140 Cal. App. 192\", \"volume\": \"140\", \"reporter\": \"California Appellate Reports\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T19:52:01.808450+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ALONZO O. COFFMAN, Respondent, v. D. C. CROOKSHANK, Appellant.\", \"head_matter\": \"[Civ. No. 8539.\\nSecond Appellate District, Division Two.\\nJuly 26, 1934.]\\nALONZO O. COFFMAN, Respondent, v. D. C. CROOKSHANK, Appellant.\\nWilliam M. Rains for Appellant.\\nKelly, Stuart & Hendrick and E. W. Kendrick for Respondent.\", \"word_count\": \"684\", \"char_count\": \"4074\", \"text\": \"ARCHBALD, J., pro tem.\\nPlaintiff secured the acceptance of an agreement whereby defendant and his wife offered to exchange property described therein belonging to them for certain property belonging to W. L. Rohrer and .wife, the terms of exchange being set out in said agreement. Defendant agreed to pay plaintiff the sum of $1500 upon \\\"acceptance of the proposition to exchange the above described property on the above terms\\\". Rohrer in his acceptance agreed to pay plaintiff the sum of $1,000 \\\"for the exchange of our property . . . for the services of said agent\\\". The property of the Rohrcrs was described in the agreement as \\\"being that 20 aeres, mor\\u00e9 or less\\\", describing its location, \\\"subject to % oil rights, % interest in pumping plant, a road easement, P. E. right-away out, and $150.00 road bonds\\\". Defendant, after the exchange agreement was signed, found that the Pacific Electric right of way therein mentioned included about 1.798 acres of land, and objected to going ahead with the exchange unless Rohrer would convey to him the full twenty acres or \\\"reduce the purchase price thereof pro rata and proportionate to the difference between the amount agreed to be conveyed, towit, 20 acres, and the amount actually to be conveyed\\\". This Rohrer refused to do, and the exchange was not consummated. Plaintiff brought this action against defendant to recover not only the commission which the latter agreed to pay for securing the acceptance of the exchange agreement, but also the damage caused by the loss of the commission Rohrer agreed to pay upon completion of the exchange, by reason of defendant's refusal to perform his part of the exchange agreement. Prom a judgment in favor of plaintiff, which included the $1,000 so lost, defendant has appealed.\\nThe only question raised on appeal is whether or not said $1,000 was properly included in the judgment. Appellant's contention is that it could not be so included in the absence of a written agreement to pay it. Such contention would be good if the claim of plaintiff had been based on an agreement to pay Bohrer's commission, but such was not the ease. The complaint is based on the damage caused by defendant in refusing to make said exchange. The evidence supports the conclusion that Bohrer was ready, willing and able to carry out his part of the agreement, but was prevented from so doing by appellant's refusal. The measure of damages in such case is the amount which will compensate \\\"for all the detriment proximately caused thereby\\\", whether considered as the breach of an obligation arising from contract (sec. 3300, Civ. Code) or a breach not so arising (sec. 3333, Civ. Code). It hardly needs argument to support the proposition that under the evidence here the proximate damage caused by appellant's failure to complete his agreement of exchange with Bohrer was the commission Bohrer agreed to pay upon completion; and being familiar with the commission agreements connected therewith appellant must have known that if Bohrer was willing to complete his part of the exchange and the appellant was not, such damage would necessarily result from his failure so to do. The case of Traxler v. Katz, 116 Cal. App. 226, 230 [2 Pac. (2d) 553], is on all-fours with the present case, and a hearing thereof was refused by the Supreme Court. See, also, Calkins v. F. W. Woolworth Co., 27 Fed. (2d) 314.\\nNor in our opinion did the fact that Bohrer could not convey twenty acres to appellant justify his withdrawal from the agreement to exchange. The only construction that we think can be placed on the description of Bohrer's land is that it was twenty acres more or less with \\\"P. B. right-away out\\\". It does not appear that he was not in a position to convey to appellant all the land he agreed to convey.\\nJudgment affirmed.\\nStephens, P. J., and Desmond, J., concurred.\"}"
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diff --git a/cal/2253931.json b/cal/2253931.json
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+"{\"id\": \"2253931\", \"name\": \"THE PEOPLE, Respondent, v. LOUIE BIANCHI et al., Appellants\", \"name_abbreviation\": \"People v. Bianchi\", \"decision_date\": \"1934-09-17\", \"docket_number\": \"Crim. No. 1356\", \"first_page\": \"698\", \"last_page\": \"701\", \"citations\": \"140 Cal. App. 698\", \"volume\": \"140\", \"reporter\": \"California Appellate Reports\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T19:52:01.808450+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PEOPLE, Respondent, v. LOUIE BIANCHI et al., Appellants.\", \"head_matter\": \"[Crim. No. 1356.\\nThird Appellate District.\\nSeptember 17, 1934.]\\nTHE PEOPLE, Respondent, v. LOUIE BIANCHI et al., Appellants.\\nRay T. Coughlin and A. G-. Bailey for Appellants.\\nU. S. Webb, Attorney-General, and Ralph H. Cowing, Deputy Attorney-General, for Respondent.\", \"word_count\": \"699\", \"char_count\": \"4146\", \"text\": \"PULLEN, P. J.\\nThe appellants herein stand convicted of the crime of assault with intent to commit rape. At a former trial they, together with one Bartels, had been tried, which trial resulted in an acquittal for Bartels, but as to the guilt or innocence of these appellants, the jury were unable to agree.\\nDuring the second trial the district attorney offered as part of his ease the testimony of Bartels as given at the first trial. To this offer the defendants interposed objections that it was irrelevant, incompetent, immaterial and hearsay, and was not testimony offered on behalf of the people nor of the defendants then on trial, it being testimony offered on behalf of defendant Bartels in his own defense, and did not come within the provisions of section 686 of the Penal Code. The objection was overruled and the testimony admitted, which appellants now claim constitutes reversible error.\\nSection 686 of the Penal Code reads in part as follows:\\n\\\"In a criminal action the defendant is entitled: . To provide witnesses on his behalf and to be confronted with the witnesses against him, in the presence of the court, . . . and except also that in the case of offenses hereafter committed the testimony on behalf of the people or the defendant of a witness deceased, insane, out of jurisdiction, or who cannot, with due diligence, be found within the state, given on a former trial of the action in the presence of the defendant who has, either in person or by counsel, cross-examined or bad an opportunity to cross-examine the witness, may be admitted.\\\"\\nIn contending that the testimony of Bartels is inadmissible we believe able counsel for appellants are giving to this section a strained construction. Clearly the proffered testimony was not hearsay. Bartels testified in open court in the presence of these appellants, who not only had an opportunity to cross-examine him, but actually did so. It is not the language nor the purpose of this section to require that the testimony should have been introduced by or on behalf of all of the defendants in the action. Its object is to make certain that any testimony which was given at a former trial and offered in evidence at a subsequent trial could only be admitted if the parties against whom it was to be admitted had an opportunity, either personally or by counsel, to cross-examine the witness on the former trial.\\nIt is well stated in Wigmore on Evidence, volume 3, section 1370, that \\\"The Hearsay rule excludes testimonial statements not subjected to cross-examination. When, therefore, a statement has already been subjected to cross-examination and is hence admitted\\u2014as in the case of a deposition or testimony at a former trial,-\\u2014it comes in because the rule is satisfied, not because an exception to the rule is allowed. The statement may have been made before the present trial, but if it has been already subjected to proper cross-examination, it has satisfied the rule and needs no exception in its favor.\\\"\\nAlso, under the provisions of section 685 of the Penal Code it is provided that a party prosecuted in a criminal action is designated in this code as a defendant, and section 7 of the same code provides that words used in the singular number include the plural; therefore the use of the word \\\"defendant\\\" in section 686 of the Penal Code includes the plural thereof, and whenever testimony is introduced on behalf of any of the defendants if there is more than one on trial, it may be introduced at a subsequent trial if the witness has been submitted to the objecting defendants for cross-examination, and he cannot be produced in person as provided under the conditions of section 686 of the Penal Code.\\nAll of the conditions precedent having been complied with, we find no error in the ruling complained of, and the judgments and orders are affirmed.\\nThompson, J., and Plummer, J., concurred.\"}"
\ No newline at end of file
diff --git a/cal/2269380.json b/cal/2269380.json
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+"{\"id\": \"2269380\", \"name\": \"JAMES BOYSON, Respondent, v. JOHN C. PORTER et al., Defendants; CITIZEN PRINT SHOP, INC. (a Corporation), et al., Appellants\", \"name_abbreviation\": \"Boyson v. Porter\", \"decision_date\": \"1935-12-02\", \"docket_number\": \"Civ. No. 9721\", \"first_page\": \"431\", \"last_page\": \"436\", \"citations\": \"10 Cal. App. 2d 431\", \"volume\": \"10\", \"reporter\": \"California Appellate Reports, Second Series\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T01:07:44.971331+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JAMES BOYSON, Respondent, v. JOHN C. PORTER et al., Defendants; CITIZEN PRINT SHOP, INC. (a Corporation), et al., Appellants.\", \"head_matter\": \"[Civ. No. 9721.\\nSecond Appellate District, Division One.\\nDecember 2, 1935.]\\nJAMES BOYSON, Respondent, v. JOHN C. PORTER et al., Defendants; CITIZEN PRINT SHOP, INC. (a Corporation), et al., Appellants.\\nHarry D. Parker and Horace W. Danforth for Appellants.\\nEdwards & Taylor and Harvey D. Taylor for Respondent.\", \"word_count\": \"1602\", \"char_count\": \"9034\", \"text\": \"ROTH, J., pro tem.\\nRespondent was on June 10, 1933, the day of the accident hereinafter set out, and had been for some time prior thereto, employed by the committee seeking to elect John C. Porter, mayor of Los Angeles. The evidence discloses that on the day mentioned, the Citizen Print Shop, Inc., was good \\\"enough to let us (the committee) have the use of their truck\\\" and its driver, one Emery. Plaintiff's action for damages was commenced against the members of the committee, Citizen Print Shop, Inc., and Emery. Motions for directed verdicts were granted as to all named defendants except Citizen Print Shop, Inc., and Emery, against which two last-named defendants, hereinafter referred to as appellants, the jury before which the case was tried brought in a verdict of $2,500.\\nEmery drove the truck mentioned to various places, in accordance with directions of plaintiff. On the particular ride in question, a capacity load of furniture was being transported to a certain church building and Emery and another person were riding in the cab. Plaintiff was sitting in a chair facing forward. The chair rested on the floor of the truck near the rear, which was open, there being no end gate, but close enough to the side to enable plaintiff to hold onto the \\\"stake body\\\" built over the floor of the truck along its sides. The floor of the truck was \\\"galvanized sheet iron\\\" and was \\\"perfectly smooth\\\". It further appeared that the driver of the truck by looking through the back of the cab could see plaintiff. It also appears that there was room in the cab for plaintiff, but that on the trip in question he was riding in the position mentioned, holding to the side of the truck, steadying himself so, as he put it, he \\\"wouldn't fall out\\\". With plaintiff riding in this position, the truck came to a standstill in front of the church building, and while the truck was stopped, although the motor was still running, plaintiff relaxed his hold, but his arm still \\\"lay on the side of the truck\\\" and with the other arm he had hold of the chair in which he was sitting. When plaintiff was in this position, the truck lurched forward with a jerk, throwing plaintiff to the street, as a consequence of which the plaintiff sustained fractures of the spine, particularly to the transverse processes of the fourth and fifth lumbar vertebrae, and an injury to the back of his head. As summarized in the bill of exceptions, plaintiff described the accident as follows:\\n\\\"When the truck reached the church and stopped, I relaxed my hold, but did not remove my arm from the side of the truck, and. I still had hold of the chair. After the truck stopped, it jerked forward and I went over the end.\\n\\\"I do not know whether the chair slipped off the back of the truck or whether I fell backwards off the chair. When I fell, the truck stopped, and Mr. Emery and the other gentleman came around. I do not know if Mr. Emery was the first or the other gentleman was. They both came there when I was sitting up on the ground, on the decomposed granite on the shoulder of the street. They assisted me to the church and I sat on one of the chairs that came on the load.- The others unloaded the truck. . . .\\n\\\"I did not say anything to Mr. Emery about jerking the truck forward, but I did ask him why he had not taken the car out of gear. I don't know whether he made any response or not. I did not say that Mr. Emery caused the accident, and I do not remember that I said I thought he had been negligent but that it wasn't his fault.\\\"\\nThe trial took place six months after the accident, at which time the evidence was that plaintiff would be required to wear a plaster girdle for at least three months and that even though the fractures would in all probability heal, there would still remain some disability.\\nAppellants appeal from the order entered on the verdict and from the order denying their respective motions to enter judgments in their favor notwithstanding the verdict. The particular point is that the evidence does not warrant a finding of negligence on the part of appellants. There is no conflict in the evidence to the effect that Emery brought the truck to a standstill at a place where it could have been properly unloaded, and where, except for the few feet that the truck lurched forward, it actually was unloaded. Under such circumstances, it cannot be said as a matter of law that plaintiff was not justified in relaxing his hold on the side of the truck. When reasonable minds can draw different conclusions from the facts, negligence is a question of fact for the jury. (Whitmeyer v. Southern Pacific Co., 102 Cal. App. 199 [282 Pac. 1005]; Grimes v. Richfield Oil Co., 106 Cal. App. 416 [289 Pac. 245].) For the same reason, it can hardly be said that plaintiff was guilty of contributory negligence as a matter of law. As said in Whitmeyer v. Southern Pacific Co., supra, at page 203:\\n\\\" . . . rarely is a set of circumstances presented which enables a court to say, as a matter of law, that negligence has been shown. It is usually a question of fact for the jury, an inference to be deduced from the circumstances of each particular case.\\\" If the evidence was sufficient to sustain the verdict, as we believe it was, it follows that the motions for nonsuit, directed verdict and for judgment notwithstanding the verdict were properly denied. It would have been error for the court to grant a nonsuit, and the power of the court to direct a verdict or to grant a motion for judgment notwithstanding the verdict is bottomed on the same rules which control the action of a court on a motion for nonsuit. (Perera v. Panama-Pacific International Exposition Co., 179 Cal. 63 [175 Pac. 454]; Estate of Gaspar, 172 Cal. 147 [155 Pac. 631]; Card v. Boms, 210 Cal. 200 [291 Pac. 190]; Estate of Flood, 217 Cal. 763, 768 [21 Pac. (2d) 579].)\\nAppellants by affidavit of their counsel, the averments of which were almost entirely made on information and belief, which affidavit was used in the proceeding on the motion for new trial, charged that the entire jury panel, from which was selected the jury, that tried the case, was drawn from persons assembled at the headquarters of the Catholic Welfare League, and that the. prospective jurors admitted this fact on voir dire examination by appellants' counsel. Aside from the fact that an affidavit on information and belief charging such facts is \\\"unavailing for any purpose\\\" {Gay v. Torrance, 145 Cal. 144, 151 [78 Pac. 540]; People v. Findley, 132 Cal. 301 [64 Pac. 472]; People v. Williams, 24 Cal. 31, 40); there is nothing in the record to indicate that the jurors concealed anything or that any of them did not have the prop\\u00e9r qualifications, or that they were not regularly selected pursuant to section 227 of the Code of Civil Procedure.\\nThis method of selecting a venire is not, however, to be recommended. The language of Mr. Justice Curtis in a concurring opinion in Fitts v. Superior Court, 4 Cal. (2d) 514 [51 Pac. (2d) 66], referring in that ease to a method of selecting grand jurors, is, we feel, appropriate to the situation presented in this ease. The learned justice says at page 376 of that opinion: \\\"The method employed by the trial court in the selection . of the jury . . . was so unusual and un- \\\" precedented and so fraught with gravest dangers that it is a matter of regret . . . that there is not to be found some legal authority whereby the courts might declare all acts of a jury so selected absolutely void .\\\"\\nThe instructions given on the measure of damages when read together disclose no error, and it cannot he said that the verdict rendered is such that it patently appears to have been rendered as the result of passion or prejudice on the part of the jury or any of the jurors. (Bonneau v. North Shore etc. Co., 152 Cal. 406 [93 Pac. 106, 125 Am. St. Rep. 68].) There is no merit in appellants' contention raised for the first time on oral argument prior to the submission \\u2022of this case on appeal, that respondent was a guest and that, since there was no showing of wilful misconduct, the evidence does not sustain the verdict. Respondent was not a guest. (Haney v. Takakura, 2 Cal. App. (2d) 1 [37 Pac. (2d) 170].)\\nThe judgment and the order denying motion of appellants for the entry of judgment in their favor notwithstanding the verdict are, and each of-them is, affirmed.\\nHouser, P. J., and York, J., concurred.\\nA petition for a rehearing of this cause was denied by the District Court of Appeal on December 30, 1935, and an application by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on January 30, 1936. Thompson, J., voted for a hearing.\"}"
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@@ -0,0 +1 @@
+"{\"id\": \"2270555\", \"name\": \"REYNOLDS METALS COMPANY, Plaintiff and Appellant, v. NORMAN O. ALPERSON et al., Defendants and Respondents\", \"name_abbreviation\": \"Reynolds Metals Co. v. Alperson\", \"decision_date\": \"1979-08-31\", \"docket_number\": \"L.A. No. 31045\", \"first_page\": \"124\", \"last_page\": \"130\", \"citations\": \"25 Cal. 3d 124\", \"volume\": \"25\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T22:59:04.121916+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"REYNOLDS METALS COMPANY, Plaintiff and Appellant, v. NORMAN O. ALPERSON et al., Defendants and Respondents.\", \"head_matter\": \"[L.A. No. 31045.\\nAug. 31, 1979.]\\nREYNOLDS METALS COMPANY, Plaintiff and Appellant, v. NORMAN O. ALPERSON et al., Defendants and Respondents.\\nCounsel\\nAdams, Duque & Hazeltine, James L. Nolan and Margaret Levy for Plaintiff and Appellant.\\nKranitz, Sarrow, Imerman & Sacks, Jerome H. Sarrow, Goodstein, Copes & Field, Donald A. Dewar and H. Walter Croskey for Defendants and Respondents.\", \"word_count\": \"1376\", \"char_count\": \"8732\", \"text\": \"Opinion\\nCLARK, J.\\nPlaintiff appeals from judgment awarding defendants $80,500 attorney's fees. We reverse.\\nDefendants, shareholders and directors of Titanium Metallurgical, Inc. (TMI), owned and operated a subsidiary, Turner Metals Supply, Inc. (Turner). Plaintiff supplied aluminum goods and products to Turner pursuant to a general line consignment agreement executed in 1971. TMI signed the agreement as guarantor of Turner's payments. The. agreement contained no provision for recovery of attorney's fees in the event of breach.\\nIn January 1973, Turner, with TMI as indorser, executed and delivered two promissory notes in the aggregate principal amount of $60,794.12. The notes provided for recovery of collection costs, including attorney's fees limited to 15 percent of the principal amount of the notes, in the event of default.\\nIn 1973, Turner and TMI became insolvent and bankruptcy proceedings commenced. Plaintiff, having extended credit of $823,231.48 to Turner, filed a creditor's claim in the proceedings. Plaintiff also brought this suit seeking to hold defendants personally liable for the debts owed plaintiff by Turner and TMI, claiming defendants were \\\"alter egos\\\" of the two bankrupt companies. Trial proceeded on three causes of action, two on common count and the third upon the two unpaid promissory notes.\\nAfter lengthy trial, the court rejected the \\\"alter ego\\\" theory advanced by plaintiff, absolving defendants from personal liability for the obligations of Turner and TMI. In addition, the trial court granted defendants $80,500 in attorney's fees.\\nThe court awarded defendants 100 percent of their legal fees incurred in attachment proceedings, 75 percent of their fees incurred from the commencement of the lawsuit until certain tort causes of action were dismissed, and 100 percent of their remaining fees.\\nI. Availability of Attorney's Fees\\nUnless authorized by either statute or agreement, attorney's fees ordinarily are not recoverable as costs. (Code Civ. Proc., \\u00a7 1021; D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 24-27 [112 Cal.Rptr. 786, 520 P.2d 10]; Freeman v. Goldberg (1961) 55 Cal.2d 622, 625 [12 Cal.Rptr. 668, 361 P.2d 244]; Young v. Redman (1976) 55 Cal.App.3d 827, 834-835 [128 Cal.Rptr. 86].)\\nCivil Code section 1717 provides in part: \\\"In any action on a contract, where such contract specifically provides that attorney's fees and costs, which are incurred to enforce the provisions of such contract, shall be awarded to one of the parties, the prevailing party, whether he is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to costs and necessary disbursements.\\\" (Italics added.)\\nThe language of the statute is unclear as to whether it shall be applied to litigants who like defendants have not signed the contract. The section refers to \\\"any action on a contract\\\" thus including any action where it is alleged that a person is liable on a contract, whether or not the court concludes he is a party to that contract. Nevertheless the terms \\\"parties\\\" and \\\"party\\\" are ambiguous. It is unclear whether the Legislature used the terms to refer to signatories or to litigants.\\nSection 1717 was enacted to establish mutuality of remedy where contractual provision makes recovery of attorney's fees available for only one party (International Industries v. Olen (1978) 21 Cal.3d 218, 223 [145 Cal.Rptr. 691, 577 P.2d 1031]; System Inv. Corp. v. Union Bank (1971) 21 Cal.App.3d 137, ,163 [98 Cal.Rptr. 735]; Review of Selected 1968 Code Legislation (Cont.Ed.Bar) pp. 35-36), and to prevent oppressive use of one-sided attorney's fees provisions. (Coast Bank v. Holmes (1971) 19 Cal.App.3d 581, 596-597 [97 Cal.Rptr. 30].)\\nIts purposes require section 1717 be interpreted to further provide a reciprocal remedy for a nonsignatory defendant, sued on a contract as if he were a party to it, when a plaintiff would clearly be entitled to attorney's fees should he prevail in enforcing the contractual obligation against the defendant.\\nAttorney's fees were awarded pursuant to section 1717 to a person found not to be a signatory to a contract in Babcock v. Omansky (1973) 31 Cal.App.3d 625, 633-634 [107 Cal.Rptr. 512]. The defendant prevailed following the plaintiff's allegation she was liable as a coventurer or partner with another defendant who had executed a promissory note providing for attorney's fees. Concluding that the nonsigning defendant was entitled to attorney's fees, the court reasoned the language of section 1717 was sufficiently broad to include persons who had not signed the contract but were sued on the note and found not to be parties to it. (See Pas v. Hill (1978) 87 Cal.App.3d 521, 533-536 [151 Cal.Rptr. 98]; Canal-Randolph Anaheim, Inc. v. Wilkoski (1978) 78 Cal.App.3d 477, 486, fn. 2 [144 Cal.Rptr. 474]; Schlocker v. Schlocker (1976) 62 Cal.App.3d 921, 923 [133 Cal.Rptr. 485]; Boliver v. Surety Co. (1977) 72 Cal.App.3d Supp. 22, 29 [140 Cal.Rptr. 259].)\\nArnold v. Browne (1972) 27 Cal.App.3d 386, 398-399 [103 Cal.Rptr. 775] and Sain v. Silvestre (1978) 78 Cal.App.3d 461, 476 [144 Cal.Rptr. 478] are disapproved insofar as they are inconsistent with our holding here.\\nHad plaintiff prevailed on its cause of action claiming defendants were in fact the alter egos of the corporation (Kohn v. Kohn (1950) 95 Cal.App.2d 708, 718 [214 P.2d 71]), defendants would have been liable on the notes. Since they would have been liable for attorney's fees pursuant to the fees provision had plaintiff prevailed, they may recover attorney's fees pursuant to section 1717 now that they have prevailed.\\nII. The Amount\\nWhere a cause of action based on the contract providing for attorney's fees is joined with other causes of action beyond the contract, the prevailing party may recover attorney's fees under section 1717 only as they relate to the contract action. (McKenzie v. Kaiser-Aetna (1976) 55 Cal.App.3d 84, 88-90 [127 Cal.Rptr. 275]; see Schlocker v. Schlocker, supra, 62 Cal.App.3d 921, 923.) Describing the attorney's fees provision, section 1717 specifically refers to fees \\\"incurred to enforce the provisions of [the] contract.\\\" A litigant may not increase his recovery of attorney's fees by joining- a cause of action in which attorney's fees are not recoverable to one in which an award is proper. In this case, the two promissory notes contained contract provisions for attorney's fees, but no such provision existed in the general line consignment agreement. Accordingly, attorney's fees incurred solely for defending causes of action based on the latter agreement and defending against the tort causes of action are not recoverable.\\nConversely, plaintiff's joinder of causes of action should not dilute its right to attorney's fees. Attorney's fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed. All expenses incurred with respect to the alter ego issue\\u2014common to both the note and the general line consignment agreement\\u2014qualify for award.\\nBecause the promissory notes contained provision limiting attorney's fees to 15 percent of the amount of the notes ($60,794.12), recovery of fees under section 1717 must be similarly limited. As we have seen, the section establishes a reciprocal right to attorney's fees, and the statutory right should be no greater than the contractual right. The statute refers to \\\"reasonable attorney's fees,\\\" and reasonable falls within the fundamental principle of reciprocity.\\nThe trial court erred in failing to observe the 15 percent limitation.\\nThe judgment is reversed for redetermination of attorney's fees.\\nBird, C. J., Tobriner, J., Mosk, J., Richardson, J., Manuel, J., and Newman, J., concurred.\\nDefendant Alperson sought to recover $39,445 in attorney's fees and was awarded $38,500. Defendant Blivas sought $51,597.50 and was awarded $42,000.\\nSection 1717 also provides: \\\"Attorney's fees provided for by this section shall not be subject to waiver by the parties to any contract which is entered into after the effective date of this section. Any provision in any such contract which provides for waiver of attorney's fees is void, [f] As used in this section 'prevailing party' means the party in whose favor final judgment is rendered.\\\"\"}"
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diff --git a/cal/2270929.json b/cal/2270929.json
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index 0000000000000000000000000000000000000000..cb943c807b4660635be85b943bb78b8ea5c0ec46
--- /dev/null
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+"{\"id\": \"2270929\", \"name\": \"In the Matter of the Estate of VINCENZA FASSETTA, an Insane Person. J. M. TONER, M. D., Director of State Institutions, etc., Respondent, v. IOLANDA CATTANEO, Guardian, etc., Appellant\", \"name_abbreviation\": \"Toner v. Cattaneo\", \"decision_date\": \"1936-05-20\", \"docket_number\": \"Civ. No. 10998\", \"first_page\": \"239\", \"last_page\": \"241\", \"citations\": \"14 Cal. App. 2d 239\", \"volume\": \"14\", \"reporter\": \"California Appellate Reports, Second Series\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T18:37:35.071223+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of the Estate of VINCENZA FASSETTA, an Insane Person. J. M. TONER, M. D., Director of State Institutions, etc., Respondent, v. IOLANDA CATTANEO, Guardian, etc., Appellant.\", \"head_matter\": \"[Civ. No. 10998.\\nSecond Appellate District, Division Two.\\nMay 20, 1936.]\\nIn the Matter of the Estate of VINCENZA FASSETTA, an Insane Person. J. M. TONER, M. D., Director of State Institutions, etc., Respondent, v. IOLANDA CATTANEO, Guardian, etc., Appellant.\\nO. H. Myrick and C. W. Pendleton for Appellant.\\nU. S. Webb, Attorney-General, and Alberta Belford, Deputy Attorney-General, for Respondent.\", \"word_count\": \"520\", \"char_count\": \"2962\", \"text\": \"CRAIL, P. J.\\nThis is an appeal from an order directing payment by the guardian to the Department of Institutions of $20 per month for the board, care and maintenance of the incompetent at a state institution for the period from April 2, 1930, to August 2, 1934.\\nThree points are raised on the appeal: \\\"1. That the director did not sustain his petition by any proof; 2. That the said demand is stale and is barred by laches; 3. That the director is estopped to present said demand on account of leading the guardian to understand that no demand of the kind would be made, but that the same was waived.' ' The allegations of the petition are: (1) That the incompetent is and ever since the fifteenth day of May, 1922, has been an inmate of Norwalk State Hospital, cared for, maintained and given medical attention by that institution. (2) That from January 1, 1930 to August 1, 1934, the rate charged for board, care and medical attention given said insane person was $20 per month. (3) That though often demanded the guardian had failed, refused and neglected .to make any payment. (4) That there is now due and owing to the department the sum of $1100.\\nThe answer admits all of said allegations except that it denies that there is or was due the sum of $1100 or any part thereof. The answer also pleads laches and estoppel.\\nWith regard to the first point the answer admits that the incompetent was confined in the institution for the period pleaded; admits that the charge made was $20 per month and that it has never been paid. Under the pleadings there was no burden upon the state to prove these facts, and no point is made that $20 per month is not a reasonable charge for the services rendered.\\nWith regard to defendant's second point, he is not in a position to claim that the demand is stale and is barred by laches where he has admitted in the pleadings the allegation numbered (3) above.\\nWith regard to the defendant's third point, i. e., estoppel, an essential element of estoppel is lacking. The act upon which the defendant relies to create an estoppel consisted merely in the state's silence through the years from 1922 to 1930 in the matter of collecting a similar $20 per month for the care of the incompetent and in its neglect to demand such sums for that period. There is no proof that the state's conduct gained any advantage for the state or produced any disadvantage to the defendant. There is no proof that the defendant changed his position by reason thereof to his injury.\\nJudgment affirmed.\\nWood, J., and McComb, J., pro iem., concurred.\"}"
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diff --git a/cal/2272504.json b/cal/2272504.json
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index 0000000000000000000000000000000000000000..ae10735052756e29eb0a74d53197ff55562f1e5c
--- /dev/null
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+"{\"id\": \"2272504\", \"name\": \"THE PEOPLE, Respondent, v. HARRY FULLER GOOLD, Appellant\", \"name_abbreviation\": \"People v. Goold\", \"decision_date\": \"1949-03-15\", \"docket_number\": \"Crim. No. 4308\", \"first_page\": \"640\", \"last_page\": \"641\", \"citations\": \"90 Cal. App. 2d 640\", \"volume\": \"90\", \"reporter\": \"California Appellate Reports, Second Series\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T02:00:51.479327+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PEOPLE, Respondent, v. HARRY FULLER GOOLD, Appellant.\", \"head_matter\": \"[Crim. No. 4308.\\nSecond Dist., Div. Two.\\nMar. 15, 1949.]\\nTHE PEOPLE, Respondent, v. HARRY FULLER GOOLD, Appellant.\\nHarry Fuller Goold in pro. per. for Appellant.\\nFred N. Howser, Attorney General, and Elizabeth Miller, Deputy Attorney General, for Respondent.\", \"word_count\": \"364\", \"char_count\": \"2084\", \"text\": \"WILSON, J.\\nOn June 18, 1931, an information was filed against defendant charging him with the crime of murder in the first degree. He entered pleas of \\\"not guilty\\\" and \\\"not guilty by reason of insanity. ' ' The jury found him guilty as charged and found that he was sane at the time of the commission of the offense. An appeal from the judgment and from the order denying a new trial was affirmed. (People v. Goold, 215 Cal. 763 [12 P.2d 958].)\\nOn September 14, 1948, defendant filed in the superior court an unverified petition for writ of error coram nobis. The petition was denied and defendant has appealed from the order of denial. In his brief he presents the following grounds for a reversal of the order: (1) The district attorney was guilty of prejudicial misconduct at the trial; (2) the trial court erred in submitting to the jury the question whether or not his confession was made while he was so mentally deficient as to be unable to understand its meaning; (3) the trial court erred in refusing to grant him a trial separate from his codefendants, or to permit a trial on the issue of insanity by a different jury, with his own attorney opening and closing the argument; (4) errors in the instructions to the jury; (5) the evidence of the doctors who testified that he was sane was inherently improbable and unbelievable.\\nSince all the grounds stated were reviewable on appeal they are not available to him as reasons for the granting of a petition for a writ of error coram nobis. (People v. Superior Court, 4 Cal.2d 136, 149, 150 [47 P.2d 724]; People v. Black, 114 Cal.App. 468, 470-1 [300 P. 43]; People v. Krout, ante, p. 205 [202 P.2d 635].) In fact all the grounds relied on by defendant were decided adversely to his contention. (215 Cal. 763.)\\nOrder affirmed.\\nMoore, P. J., and McComb, J., concurred.\"}"
\ No newline at end of file
diff --git a/cal/2274493.json b/cal/2274493.json
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index 0000000000000000000000000000000000000000..2674d478899a00e7ef66431399dd8cc647fc956d
--- /dev/null
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+"{\"id\": \"2274493\", \"name\": \"THE PEOPLE, Respondent, v. MURIEL W. TALLENT, Appellant\", \"name_abbreviation\": \"People v. Tallent\", \"decision_date\": \"1948-12-13\", \"docket_number\": \"Crim. No. 662\", \"first_page\": \"158\", \"last_page\": \"161\", \"citations\": \"89 Cal. App. 2d 158\", \"volume\": \"89\", \"reporter\": \"California Appellate Reports, Second Series\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T22:22:50.012848+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PEOPLE, Respondent, v. MURIEL W. TALLENT, Appellant.\", \"head_matter\": \"[Crim. No. 662.\\nFourth Dist.\\nDec. 13, 1948.]\\nTHE PEOPLE, Respondent, v. MURIEL W. TALLENT, Appellant.\\nRaymond E. Hodge for Appellant.\\nFred N. Howser, Attorney General, and Dan Kaufmann, Deputy Attorney General, for Respondent.\", \"word_count\": \"1351\", \"char_count\": \"7677\", \"text\": \"BARNARD, P. J.\\nThe appellant and one Dover were jointly charged with the crime of robbery in that on February 29,1948, they held up a cocktail lounge in San Bernardino, taking about $300 from the bartender. It was further charged that at the time of the commission of the offense they were armed with a deadly weapon. Dover pleaded guilty and the appellant pleaded not guilty. The appellant was ably represented by counsel at the trial. A jury found him guilty and also found that he was armed with a deadly weapon at the time of the robbery. He was sentenced to imprisonment, and he appeals from an order denying a new trial and from the judgment.\\nWith one exception, there is little or no dispute as to the main facts surrounding the commission of this robbery and the events of the next few days. Briefly stated, it appears that the appellant and Dover first met on February 27 at \\\"Knobby's Caf\\u00e9\\\" in Ontario; that they again met at the same place on February 29; that they then proceeded in appellant's automobile to another caf\\u00e9 near Ontario; that Dover there told the appellant how he had robbed slot machines and showed him a loaded gun he was carrying; that while returning to Ontario Dover told the appellant he was going to pull two jobs that night; and that they returned to Knobby's Caf\\u00e9 where they had several \\\"beers.\\\" Later that night they drove in appellant's car to San Bernardino, first stopping at the cocktail lounge in question. They then went to another caf\\u00e9 and later returned to the cocktail lounge, after agreeing to hold it up. After drinking two or three beers Dover sent the appellant outside to get the car ready. When he returned, in five or ten minutes, he locked the door of the caf\\u00e9 and stood guard there while Dover pulled out his gun and removed the money from the cash register while holding everyone at gun point. They then drove rapidly away, returning to Ontario.\\nThey were together most of the time for the next four days at Dover's residence and at Knobby's Caf\\u00e9. They divided the proceeds of the robbery although the appellant contends he received only $50, and that this was later taken from him. Two or three nights later they returned to San Bernardino where they were stopped for driving the car in a weaving fashion. The officer admonished them and directed them to go home, which they did. About that time the appellant heard Dover and his wife planning to leave because the police were after them. On March 4, the appellant spent most of the day in Knobby's Caf\\u00e9, Dover and his wife not being present. In the evening Dover came in, and the appellant had someone at the caf\\u00e9 call the police, who came and took Dover away. A little later they returned and picked up the appellant. He gave the police no information that night and on March 8 be told two of the sheriff's deputies that he did not want to talk to them. On March 10, he made a complete statement to these deputies and later that day repeated it for the purpose of having it taken down in shorthand. This statement, which was received in evidence, told the details of how the robbery was committed and is essentially the same as the facts testified to by Dover and as confirmed, in part, by the testimony of other witnesses. However, this statement contained other facts which are relied on by the appellant as showing that he unwillingly assisted Dover in this robbery.\\nAppellant's main contention is that the evidence is insufficient to sustain the judgment because it shows that he was forced through great fear of his life to assist Dover in the commission of this crime, and that through his cooperation with the police Dover was caught and convicted. The appellant relies on his own testimony that while they were returning to Ontario and before they first went to San Bernardino Dover laid his gun across his lap pointing toward the appellant; that Dover said \\\"I won't hurt you. I can get along with anybody as long as they treat me right\\\"; that Dover also threatened him when they entered the cocktail lounge for the purpose of robbing it; and that Dover \\\"didn't come out and say it\\\" but that he waved the gun at him and told him he would not hurt him ' ' as long as I do what he wanted me to do.\\\" Dover denied having made any such threats and testified that the appellant suggested robbing this place. It further appears that earlier on that day the appellant became aware that Dover was armed and intended to commit a robbery that night. By his own testimony the appellant had ample opportunity to leave Dover before he took him to San Bernardino. He had another perfect opportunity just before the robbery, when he left the cocktail lounge for some ten minutes, during which he moved his car and got it ready for a quick departure. He made no objection when he was given part of the money. He remained with Dover some four days during which he had numerous and ample opportunities not only to get away from Dover but to report to the police. He decided to report to the police only after hearing Dover and his wife discuss the fact that \\\"the law was after them.\\\" When he himself was taken into custody on March 4, he said nothing to the officers and refused to talk to other officers on March 8. He first told what he knew and claimed to have acted through threats and fear on March 10, when he learned that Dover had confessed.\\nThe question of whether the appellant was forced into his admitted acts through his fear of Dover and because of threats made by him, or whether he voluntarily participated in the commission of the crime was purely one of fact for the jury, and the evidence amply sustains the verdict and the judgment. The appellant's actions after he learned that Dover intended to rob some place that night, and his belated reporting of Dover to the police, followed by his refusal for many days to tell what he knew, are hardly consistent with his eventual claim of innocence and of full and praiseworthy cooperation in aiding the cause of justice.\\nThe appellant further contends that he was convicted solely on the testimony of Dover, an accomplice, and that there was no corroboration as required by section 1111 of the Penal Code. This contention is without merit. The accomplice was thoroughly corroborated by appellant's own admissions, which went much farther than merely connecting him with the commission of the offense. His contention that his admitted acts were not voluntarily done presents another question, which has already been considered, but does not destroy the effect of this corroboration. Moreover, there was ample corroboration in the testimony of several other witnesses which directly connected him with the commission of the offense.\\nIn a closing brief it is contended that while it clearly appears that Dover was armed at the time in question the evidence is insufficient to sustain a finding of armed robbery with respect to the appellant, and that the judgment should be-modified by reducing it to one for robbery in the second degree.\\nThe appellant and Dover acted jointly in committing this robbery. Dover held and used the gun in order to accomplish their purpose while the appellant assisted in other ways. Each was a principal in this act of armed robbery and the fact that the appellant was not the one who actually held the gun is immaterial. (Pen. Code, \\u00a7 31 and 971; People v. Kiser, 22 Cal.App.2d 435 [71 P.2d 98].)\\nThe order and judgment are affirmed.\\nGriffin, J., concurred.\"}"
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+"{\"id\": \"2277450\", \"name\": \"SHAVER v. THE BEAR RIVER AND AUBURN WATER AND MINING COMPANY\", \"name_abbreviation\": \"Shaver v. Bear River & Auburn Water & Mining Co.\", \"decision_date\": \"1858\", \"docket_number\": \"\", \"first_page\": \"396\", \"last_page\": \"402\", \"citations\": \"10 Cal. 396\", \"volume\": \"10\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T18:44:41.482936+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SHAVER v. THE BEAR RIVER AND AUBURN WATER AND MINING COMPANY.\", \"head_matter\": \"SHAVER v. THE BEAR RIVER AND AUBURN WATER AND MINING COMPANY.\\nBf., the president and managing agent of a corporation for ditch and mining purposes, and who was vested, by a resolution of the company, with discretionary powers as to \\u201c all matters pertaining to the prosecution of the projects of the company,** and who had been in the habit of making such contracts as he deemed necessary for the good of the corporation, purchased of plaintiff and one S., in the name and for the use of the corporation, a house, to be used as an office for the corporation, and a boarding-house for the laborers employed by the corporation, for $3000, $500 of which IT. paid down, and to secure the balance he gave a mortgage, in the name of the corporation, on the premises. IT. then, as agent, took possession of the premises, and, subsequently, several meetings of the trustees of the corporation were held in the house. Six weeks after the purchase, at a meeting of the trustees, a resolution was offered and rejected, declaring the contract legal and valid. Subsequently, the premises were destroyed by fire. The present plaintiff, who had obtained S/s interest in the debt, brought suit against the corporation to recover the amount, and for a foreclosure of the mortgage: Held, that IT. had authority to make the contract to bind the corporation; and if such authority were doubtful, the acts of the corporation amounted to a ratification of the contract.\\nAnd where IT., after the rejection of the resolution, made arrangements with the tenant in possession, who was a married woman, to pay the purchase-money and take a conveyance of the premises, and in pursuance of this agreement she paid $500, which was credited on the mortgage, and plaintiff was informed of this arrangement, and approved of it: Held, that this agreement was void, because the tenant, being a married woman, had no capacity to contract, and any agreement on the part of plaintiff to accept her as purchaser, and release the corporation, was void, for want of consideration.\\nParol proof of the existence of a debt intended to be secured by mortgage is admissible. See Bennett v. Solomon, (6 Cal., 134.)\\nSuch a mortgage is void, but this fact does not invalidate the debt intended to be secured by the mortgage.\\nAppeal from the District Court of the Eleventh Judicial District, County of Placer.\\nThis was an action to recover of the defendants, a corporation tinder the name of \\u201c The Bear River and Auburn Water and Mining Company,\\u201d a judgment for $2000 and interest, and for a foreclosure of a mortgage.\\nThe material facts, disclosed by the record, are: that one Mix-on, who was president and managing agent of the Bear River Company, purchased of plaintiff and one Sharp, in the name and for the use of the company, a house, which was intended to be used as an office for the company, and a boarding-house for the laborers employed in constructing their ditch.\\nThe price agreed on was $3000, to secure the payment of which, Mixon executed a mortgage, in the name and under the seal of the company. He then, as agent of defendants, took possession under the purchase, paid five hundred dollars of the purchase-money, put a tenant in charge of the premises, and several meetings of the trustees of the company were held in the house. Some six weeks after the purchase, it appears from an entry in the books of the company, a resolution, declaring the contract legal and valid, was offered and rejected. Before this, Mixon had been, by resolution, vested with discretionary power, as to \\u201call matters appertaining to the prosecution of the project of the company.\\u201d He had been in the habit of making such contracts as he deemed necessary for the good of the company, and the contract with plaintiff is the only one defendants attempted to reject or repudiate.\\nSome time after the rejection of this resolution, an arrange-went was made between Mixon and the tenant in possession, who was a married woman, by which the tenant agreed to pay the purchase-money due by the terms of. the contract, and take a conveyance of the land. Plaintiff was informed of this agreement, and expressed himself satisfied with it. Five hundred dollars were paid by the tenant, pursuant to this arrangement, which payment was credited on the mortgage. Soon after this, the premises were destroyed by fire. Before the institution of this suit, Sharp assigned his interest in the demand to the plaintiff.\\nThe case was tried without a jury. The defendants had judgment, and the plaintiffs appealed.\\nSmith & Hardy for Appellants.\\nCrocker & Robinson for Respondents.\\n1. The defendants never entered into the contract set forth in the complaint, but it was made with Mixon individually.\\nFirst\\u2014The defendants had no power to purchase real estate for hotel purposes. The statute which regulated such corporations at that time, was passed April 22, 1850, and is found in the Statutes of 1850, page 365. This company was organized to construct ,a ditch to convey water from Bear River to Auburn, and its vicinity. By \\u00a7 123 of-the statute they were only authorized to purchase and hold such real estate as \\u201cmaybe necessary to enable the said company to carry on their operations.\\u201d\\nThe defendants in this-case, as soon as the action of Mr. Mix-on was brought to their notice, immediately rejected it, knowing that they had no right or power to purchase or hold such real estate.\\nThey had the right thus to act upon the matter, as they could not be held bound upon a purchase which -was-made in-violation of their charter.\\nAn action can not be.sustained which is founded .on a transaction prohibited by statute, -although the contract- be not expressly declared void. 4 Sergeant & Rawle, 160; Ohitty on Conts., 692-694; 3 McLean, 214; ,7 S. & M.,-380.\\nMo right can be derived-from any agreement made in express opposition to the law. 5 Harr. & Johns., 193.\\nThe contract of a corporation unauthorized by, or in violation of its charter, is void. Orr v. Lacey, 2 Douglass, (Mich.,) 230; Angel\\u00ed & Ames on Cor.,.236; 7 Wendell, 280; lb., 31; 3 Wend., 482.\\nCorporations are bound to follow strictly the letter of their charters, and can exercise no power unless granted to them, or absolutely -necessary to carry out the powers granted. 2 Cal. R., 524.\\nCorporations \\u2022 have no powers except such:as are.specifically granted, and must be held strictly within the limits of their granted power. Lowe v. Marysville, 5 Cal. R., 214.\\nIn this case it -was also held that authority to take stock in a \\u201cpublic improvement\\u201d would not authorize taking stock in a \\u201cSteam Mavigation Company.\\u201d\\nSecond\\u2014Mixon had no authority to make the purchase.\\nIn June, 1851, the directors of the company gave Mixon \\u201c.discretionary-powers in reference to the contract with Mr. Gay, as well as all other matters appertaining to the prosecution of the project of the company.\\u201d\\nEven if the -company had power to -purchase \\u201c hotels,\\u201d still we contend that they did not authorize Mixon to make such -purchases by this resolution, which is the only one giving him power to act as agent. It is evident that this resolution was intended to give Mixon power in reference to contracts with Gay and other parties, relating to the ditch then being .constructed, and that it was never intended to authorize him to buy hotels. The extracts from the records of the company show that, notwithstanding this general authority, the directors still passed upon his acts, and ratified or rejected them as they saw best.\\nThe company were then engaged in digging their ditch, which runs one and-one-half to-two miles from Ophir. It was-let out to contractors, among whom were Nixon and this Gay. The \\u201cproject\\u201d of the company, referred to in this resolution, was the digging of the ditch, and the \\u201cdiscretionary power\\u201d was in relation to these contracts. There is not a particle of evidence that the purchase of \\u201chotels\\u201d formed any part of the \\u201cproject\\u201d of the company.\\nIt may be urged that the company needed an office, and boarding-house in which to board workmen. But the evidence shows that the office of the company was then located at Nevada, and when changed, it was removed from Nevada to Auburn, and not to Ophir\\u2014and this was not until after this contract was made. They did not need it to board laborers, for the evidence shows that \\u201cthe company employed no hands in digging the ditch,\\u201d and Nixon himself was the contractor who was digging the ditch near Ophir, so that it was Nixon, and not the \\\"company, who wanted a boarding-house.\\nCorporations are bound only by contracts of their agents done within the scope of their authority. Angel\\u00ed & Ames on Corporations, 288.\\nBut if the company ratify such contract, it is equivalent to a previous authority. Ibid., 298. Here, however, there was a direct refusal to ratify.\\nIt may be contended that as President Nixon was the general agent of the company, his acts would hind the company, without any resolution or vote of the company. But this Court has already decided that an agent acting for a corporation must be authorized by a vote of the corporation, otherwise his agency is void, as an aggregate corporation can only contract by vote. 4 Cal. R., 127.\\n2. But we also contend that no contract was proven by which Nixon or the defendants became liable personally for the purchase-money, but the remedy of plaintiff is confined to the property.\\nThe contract is in writing, and the parties are only bound by the written instrument, and that contains no promise or agreement to pay the purchase-money. They took no note or other obligation for the payment of the money.\\nThis case has been before this Court once before, and it was held that the mortgage contained no express covenant or agreement to pay, and therefore no action would lie upon it. 4 Cal. Rep., 294. And this point is fully sustained by the authorities. 3 Comstock, 264; 10 J. R., 37; 7 Watts, 360; 6 Blackford, 162, etc., etc.\\nBut plaintiff claims that he has a right to disregard the mortgage, and sue for the original purchase-money, as an independent debt. But this, we say, he can not do, without showing a written promise or agreement to pay the money. This is one of the main points in this case, and we rely upon it with confidence.\\nWe contend, that by-not taking any note, or inserting in the mortgage any express covenant to pay, it was the agreement of the parties that Sharp and Shaver should look solely to the property for payment, and that defendants never agreed to incur any personal liability. On the trial, the defendants objected to any parol evidence of the agreement, on the ground that it being in writing, that was the best evidence, and took their exception.\\nThe parties, by making a written instrument, have agreed that the writing shall be referred to as proof of their act and intention, but that they would not subject themselves to any stipulations beyond such contract, because if they meant to be bound by any such, they might have added them to their contract. 4 Cowen and Hill, notes to Phil. Ev., 593, note 395; Chitty on Contracts, 107, 108; 1 G-reenleaf Ev., \\u00a7 87; 1 Cal. Rep., 129, 337.\\nThese rules apply to deeds, and even where the paper does not purport to contain any portion of the contract beyond a bare conveyance of title. 4 C. and H, notes 594, 596.\\nIt also applies to contracts respecting and conveyances of land, and the contract is merged in the deed of conveyance and the note or mortgage for the purchase-money. 4 C. an d H., notes 598; 1 Day, 23; 3 J. R., 506; 4 Stewart and Porter, 96, 138.\\nInstruments of this kind, where there is no note or express covenant, are termed conditional deeds, as distinguished from mortgages. 2 Edwards Oh. Rep., 144; 7 Crunch, 237; 1 Hilliard on Real Property, 382; 8 Paige, 258.\\nAnd in all such cases the Courts hold that the land belongs to the party upon the non-performance of the condition, but he has no personal remedy.\", \"word_count\": \"2856\", \"char_count\": \"16463\", \"text\": \"Terry, C. J., after stating the facts, delivered the opinion of the Court\\nField, J., concurring.\\nThe first question presented is as to the capacity of defendants to enter into the contract. By the law under which they were incorporated, defendants are authorized to purchase and hold \\\" such real and personal property as may be necessary to enable the company to carry on their operations.\\\"\\nIt is contended by respondents that the property in question was not necessary to the operations of defendants, and for this reason the contract was without authority, and void. But upon this point there appears to be no evidence, and the law presumes in favor of the validity of contracts.\\nBesides, it does not follow because an agent purchases property which is not absolutely necessary for the purposes of the company that the latter can, after receiving the property, avoid the payment of the purchase-money. This question arose in the case of Moss v. The Rossio Mining Company, (5 Hill, 137,) Cow-en, Justice, in delivering the opinion of the Court, said: \\\"lam not aware that a corporation, more than another, can purchase and convert an article to its own use, and then object that it acted beyond the statute power. It is itself a sort of agent, and must be the judge as between itself and the vendor whether the article be wanted or not. The vendor can not pronounce on the question. Purchasing a shop for the purpose of keeping goods and carrying on trade is objected to. But is the loss to fall on the grantors of the shop or the vendors of the goods ? The goods to be purchased, for aught Moss and Knapp knew, might be wanted by the workmen of the company in payment for labor, and been even more acceptable than cash.\\\"\\nThis authority applies directly to the case before us. It was certainly necessary that defendants should have an office in which to keep the papers and books of the corporation, and which would serve as a place of meeting for the trustees, and it was probably thought advantageous to the defendants to have a place at which the hands employed by them could be boarded. Considerable stress is laid by the respondent, on the fact that the house purchased was a hotel, and it is said \\\" it was certainly no part of the objects of the corporation to embark in hotel-keeping.\\\" . It is true, the house is called in the conveyance the \\\" Empire Hotel,\\\" but the description of it in the evidence, as well as the price for which it was sold, raise a strong presumption that it was susceptible of being put to other uses.\\nThe authority of Nixon to make the contract, as the agent of the company, we think, sufficiently appears; and if this point were doubtful, the acts of the company amounted to a ratification. Nixon, as agent of the defendants, entered into possession immediately after the purchase; the trustees held their meetings in the house, and nothing is said as to his want of authority till some six weeks afterwards, when, at a meeting held on the premises, the resolution approving the contract was offered and rejected.\\nThe entry of this resolution comes in a very questionable shape, and is entitled to but little weight, as it contains erasures and interlineations which materially vary its meaning, and is, at least, a very singular mode of repudiating a contract.\\nIt would have been more in accordance with correct notions of propriety and justice, if a resolution refusing to accept the contract had been passed, accompanied by an offer to cancel the deed, which had not been recorded, and return the property of which they were in possession.\\nThe arrangement between Mixon and the tenant was void, because the tenant, being a married woman, had no capacity to contract, and any agreement on the part of plaintiff to accept her as purchaser, and. release the company, was void, for want of consideration.\\nThe objection to the parol proof of the existence of the debt in tended to be secured by the mortgage, is answered by the decision of, this Court in Bennett v. Solomon, (6 Cal., 134.)\\nThere is no doubt that the mortgage itself, being in contravention of law, is void, but it is not perceived that this fact invalidates the debt it was intended to secure. (Sherwood v. Dunbar, 6 Cal., 52.)\\nOur conclusion from the record is, that plaintiff is entitled to recover from the defendants the sum of $2000, with legal interest from the time when the several payments became due under the contracts.\\nJudgment reversed and cause remanded, with directions that the Court below enter a judgment in conformity with this opinion.\"}"
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+"{\"id\": \"2306167\", \"name\": \"In re ALGEA CAFFEY on Habeas Corpus\", \"name_abbreviation\": \"In re Caffey\", \"decision_date\": \"1968-06-25\", \"docket_number\": \"Crim. No. 11761\", \"first_page\": \"762\", \"last_page\": \"774\", \"citations\": \"68 Cal. 2d 762\", \"volume\": \"68\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T19:18:46.800945+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In re ALGEA CAFFEY on Habeas Corpus.\", \"head_matter\": \"[Crim. No. 11761.\\nIn Bank.\\nJune 25, 1968.]\\nIn re ALGEA CAFFEY on Habeas Corpus.\\nAlgea Caffey, in pro. per., and Earl Klein, under appointment by the Supreme Court, for Petitioner.\\nThomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Richard H. Cooper, Deputy Attorney General, for Respondent.\", \"word_count\": \"4533\", \"char_count\": \"27609\", \"text\": \"TRAYNOR, C. J.\\nPetitioner is confined in the California Men's Colony at Los Padres under a judgment of conviction of violating Health and Safety Code section 11500 (possession of heroin) entered upon his plea of guilty in the San Francisco Superior Court on February 18, 1959. He admitted two prior federal narcotics convictions, and the court sentenced him to imprisonment for not less than two nor more than twenty years (former Health & Saf. Code, \\u00a7 11712). In this habeas corpus proceeding he challenges the validity of his prior convictions.\\nPetitioner's first prior conviction was entered on June 30, 1943, in the United States District Court for the Western District of Texas upon his plea of guilty to the charges of unlawful importation of marijuana into the United States without paying the annual registration tax (former 26 U.S.C. \\u00a7 3234(a), now \\u00a7 4755(a)), unlawful acquisition of marijuana without paying the transfer tax (former 26 U.S.C. \\u00a7 2593(a), now \\u00a74744), and unlawful concealment and transportation of marijuana after importing it without invoice or declara tion (former 19 U.S.C. \\u00a7 1593(b), now 18 U.S.C. \\u00a7545). Petitioner's second prior conviction was also for unlawful acquisition of marijuana wihout paying the transfer tax. It was entered on April 19, 1950, upon his plea of guilty in the United States District Court for the Southern District of Texas.\\nThe records of the federal courts state that petitioner appeared with counsel at the proceedings in 1943 and 1950. Petitioner alleges and offers to prove, however, that if counsel appeared for him in either proceeding, the appearance was a mere formality and that he was therefore denied the right to effective legal representation. Petitioner first applied for a writ of habeas corpus in the Superior Court of San Luis Obispo County. On June 23, 1967, that court ordered that petitioner be returned to the San Francisco Superior Court for an evidentiary hearing on the validity of the prior convictions. (See In re Woods (1966) 64 Cal.2d 3, 11 [48 Cal.Rptr. 689, 409 P.2d 913] ; In re Luce (1966) 64 Cal.2d 11, 14 [48 Cal.Rptr. 694, 409 P.2d 918] ; In re Tucker (1966) 64 Cal.2d 15, 21 [48 Cal.Rptr. 697, 409 P.2d 921].) On August 24, 1967, the San Francisco Superior Court ordered that petitioner be returned to San Luis Obispo County \\\"for further hearing.\\\" On September 15, 1967, the superior court of that county denied the petition on the basis of the records in the federal courts. Neither court held an evidentiary hearing.\\nWe issued an order to show cause why petitioner should not have an opportunity in an evidentiary hearing to prove that his prior convictions were obtained in violation of his right to counsel. He now contends also that he was convicted under federal statutes that violate the Fifth Amendment guarantee of the privilege against self-incrimination. He invokes principles recently announced by the United States Supreme Court in Marchetti v. United States (1968) 390 U.S. 39 [19 L.Ed.2d 889, 88 S.Ct. 697] ; Grosso v. United States (1968) 390 U.S. 62 [19 L.Ed.2d 906, 88 S.Ct. 709, 716] ; and Haynes v. United States (1968) 390 U.S. 85 [19 L.Ed.2d 923, 88 S.Ct. 722], which involved the impact of the Fifth Amendment on federal gambling and firearms legislation.\\nWe have concluded that petitioner is entitled to a hearing to determine whether he was denied the right to counsel at the proceeding in 1943. We have also concluded that the federal statute (former 19 U.S.C. \\u00a7 1593(b), now 18 U.S.C. \\u00a7 545) prohibiting concealment and transportation of marijuana imported without invoice or declaration does not violate the Fifth Amendment. If petitioner's right to counsel was not violated when he was convicted of violating that statute in 1943, that conviction would be a valid prior conviction sufficient to support his sentence under former Health and Safety Code section 11712.\\nIf the trial court determines that petitioner's right to counsel was violated at the 1943 proceeding, it must then conduct a hearing on petitioner's allegations that he was denied the right to counsel at the 1950 proceeding, when he was again convicted of unlawful acquisition of marijuana without paying the transfer tax. If the court determines that the right was also denied at the 1950 proceeding, it must disregard both prior convictions in redetermining petitioner's sentence. Only if the court finds that petitioner was not afforded the right to counsel in the 1943 proceeding, but was afforded that right in the 1950 proceeding, will it be necessary to reach the questions whether the federal statute prohibiting the unlawful acquisition of marijuana without paying the transfer tax violates the Fifth Amendment and whether petitioner may properly assert the privilege against self-inerimniation on habeas corpus following a plea of guilty at trial. Further consideration of the questions relating to the validity of the Marijuana Tax Act will therefore be deferred until after the determination of the right to counsel issue. Meanwhile, the United States Supreme Court may have settled the issue as to the validity of that statute in the light of the Marchetti, Grosso, and Haynes cases.\\nAlthough these decisions cast substantial doubt on the validity of convictions for violations of the Marijuana Tax Act (see dissenting opinion of Chief Justice Warren, Grosso v. United States, 390 U.S. 77, at p. 83 [19 L.Ed.2d at p. 917]), they afford no reason to doubt the validity of eonvic tions for smuggling marijuana. It is true that petitioner's conviction in 1943 for unlawful concealment and transportation of marijuana rests on his failure to declare and invoice it upon importation. Such declaration, however, in fact prevents the crime of smuggling from occurring. \\\"The purpose of requiring the goods to he declared is to prevent their importation or to make sure they are not imported without a duty being paid.\\\" (Mansfield, The Albertson Cases: Conflict Between the Privilege Against Self-Incrimination and the Government's Need for Information, 1966 Sup.Ct.Rev. 103, 141.) Moreover, declaration of possession of marijuana at the port of entry into the United States does not expose the declarant to prosecution for untaxed possession within the United States under 26 United States Code section 4744 or 4755. \\\"Had [petitioner] invoiced the marijuana at his first opportunity, he would have been relieved of it by the Customs agents, and thus would not have smuggled it, and would not have been in possession of it tvithin the United States,\\\" (Italics in original. Pickett v. United States (S.D. Cal. 1963) 223 F.Supp. 695, 696, cert. den. (1964) 379 U.S. 939 [13 L.Ed.2d 349, 85 S.Ct. 346] (upholding validity of 21 U.S.C. \\u00a7 176a, substantially identical with former 19 U.S.C. \\u00a7 1593 and with 18 U.S.C. \\u00a7 545); Rule v. United States (5th Cir. 1966) 362 F.2d 215, 217 (same).) Thus, the \\\"harassment of a particular class of persons or the obtaining of evidence in order to prosecute them\\\" is not the purpose of the declaration requirement. (Mansfield, op. cit. supra, 1966 Sup.Ct.Rev. at p. 141; see also concurring opinion of Justice Brennan, Grosso v. United States, supra, 390 U.S. 72 at p. 73 [19 L.Ed.2d at p. 914].) We therefore conclude that petitioner's 1943 conviction under former 19 United States Code section 1593b did not violate his privilege against self-incrimination.\\nWh\\u00e9ther that conviction properly supports an increase in punishment under former Health and Safety Code section 11712 therefore turns on the determination of the right to counsel issue. The minutes of the United States District Court for the Western District of Texas, El Paso Division, state that on June 30, 1943, petitioner and a eodefendant appeared \\\"each in proper person and by W. H. Fryer and Jos. L. Dunigan, their counsel, respectively,\\\" and pleaded guilty to the charges in the indictment filed June 21, 1943. Judge Charles A. Boynton then sentenced petitioner to four years' imprisonment. The \\\"Memo of Proceedings\\\" for the date of trial also contains the notation, \\\"W. H. Fryer, Attorney for CafEey. \\\" In his return to the order to show cause, the Attorney General states that Mr. Fryer is deceased and Mr. Dunigan has no independent recollection of the case.\\nIn his verified petition petitioner alleges that he is a Negro and that courts in the southern states customarily meted out \\\"kangaroo court\\\" justice to Negroes. He offers to prove by sworn eyewitness testimony that he first appeared in court on June 15, 1943, and pleaded guilty without counsel and without waiving counsel. He alleges that on June 30, 1943, the following events occurred:\\n\\\"Honorable Judge C. A. Boynton asked Petitioner if he had counsel, Petitioner replied he did not have counsel. The Judge again asked Petitioner if he was Guilty of the Charges, Petitioner replied that he was guilty. . . . The Honorable Judge C. A. Boynton then spoke to the Courtroom\\u2014Saying, Is there anyone in the Court who will volunteer to stand up beside this man while being sentenced? At that time an Attorney stood at Petitioner's side, (Undoubtedly, it was this Attorney, W. H. Fryer that's referred to in the transcript), and sentence was passed. Petitioner did not see or talk to any counsel from the time he was arrested, or see any counsel during his court appearances, and did not talk to the counsel that stood beside him while he was being sentenced.\\\" (Italics and statement in parentheses are petitioner's.) The truth of these allegations can be determined only in an evidentiary hearing.\\nIf petitioner proves that he was denied the right to counsel at the 1943 proceeding, he is entitled to a hearing on his allegations that he was denied the right to counsel at the 1950 proceeding as well, and that the 1950 conviction therefore cannot support his sentence under former Health and Safety Code section 11712. The judgment of the United States District Court for the Southern District of Texas, Laredo Division, states that on April 19, 1950, petitioner \\\"appeared in person and with counsel,\\\" and pleaded guilty to count three of the indictment. On motion of the United States Attorney, Judge James V. Allred dismissed counts one and two, and sentenced petitioner on count three to four years' imprisonment. The docket entry for that date states that petitioner and eodefendant Thomas appeared with attorneys W. W. Allen and Jacob Hornberger.\\nThe Attorney General has attached to his return the affidavit of William W. Allen, a Laredo attorney, to which Mr. Allen had appended a copy of a letter he wrote Mr. Hornberger on April 14, 1950, to acknowledge receipt of a $100 retainer in the case of \\\"United States vs. Thomas and Caffey,\\\" a copy of an entry for the retainer in his income journal for 1950, and copies of two entries in his 1950 Daily Schedule Book. An April 17 entry states, \\\"United States vs. Thomas and Caffey\\u2014Federal Court\\\"; an April 19 entry states, \\\"United States vs. Thomas and Caffey, 1:30 p.m., Pleas of Guilty.\\\" Mr. Allen states in his affidavit that \\\"Mr. Hornberger was originally employed and represented either one or both of the defendants at the preliminary examination and asked me to appear with him in the case at the time of entry of the plea of guilty. . I recall talking to the two defendants in the detention cell in the Federal Court Building prior to pleading in Court. .\\\"\\nThe Attorney General also submits with his return an affidavit of Jacob Hornberger stating- that he has no independent recollection of the case. He appended to his affidavit a copy of a receipt that he gave Mrs. Gladys Caffey on April 14, 1950, for $200 \\\"in full payment of fees for representation of Alger Caffee [sic], and Brewing-ton C. Thomas in Federal charge,\\\" a telegram dated April 17, 1950, and sent from Lufkin. Texas, stating: \\\"Be late getting there due to bad weather and sickness, but on our way now. Gladys Caffey,\\\" and the original of the letter he received from Mr. Allen acknowledging receipt of the $100 retainer.\\nPetitioner alleges that Judge Allred scheduled the trial for April 19, 1950, upon petitioner's request that \\\"he would like to wait until his wife arrived from California to see if she had money to retain counsel for him. .\\\" Petitioner's wife arrived, but did not have money enough to retain counsel for petitioner. He offers to prove by sworn eyewitness testimony that he pleaded to one count of the indictment after informing the court that he had no counsel and no money to retain one. \\\"Then the Judge asked Petitioner if there was anything he wanted to say before sentencing. At this time Petitioner's wife asked the Honorable Judge if she could address the Court, which she was permitted to do. She asked the Court to show leniency. . . . The Honorable Judge Allred then sentenced Petitioner to four years. Petitioner did not have counsel and did not waive counsel. ' '\\nIn an affidavit Mrs. Gladys Caffey states that at the time of her husband's arrest in 1950 she was residing in Los Angeles and that she drove to Laredo to join him at his trial. She denies sending a telegram to Mr. Hornberger from Lufkin, Texas, stating that Lufkin is near the eastern border of Texas and was not on her route from Los Angeles. She denies paying Mr. Hornberger $200 to represent her husband. \\\"I was present in court with my husband at the time of sentencing and there was no attorney present representing him or who stated anything to the court on his behalf.\\\"\\nIt is for the sentencing court to resolve the conflict in the evidence. That court has not had the benefit of the affidavits of Mrs. Caffey, Mr. Hornberger, and Mr. Allen. We must therefore remand the ease for the trial court's determination in the light of these affidavits and any evidence the parties might offer in the trial court.\\nIf true, petitioner's allegations would render the prior convictions \\\"devoid of constitutional support.\\\" (People v. Coffey (1967) 67 Cal.2d 204, 215 [60 Cal.Rptr. 457, 430 P.2d 15].) If no counsel was present at petitioner's court appearances and if petitioner did not waive the assistance of counsel, the convictions violated the Sixth Amendment right to counsel that Johnson v. Zerbst (1938) 304 U.S. 458 [82 L.Ed. 1461, 58 S.Ct. 1019, 146 A.L.R. 357], secured to indigents in federal courts. Nor can the token presence of counsel that petitioner concedes as to the 1943 conviction satisfy constitutional requirements. \\\"The denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense, could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution's requirement that an accused be given the assistance of counsel.\\\" (Avery v. Alabama (1940) 308 U.S. 444, 446 [84 L.Ed. 377, 379, 60 S.Ct. 321] ; see Powell v. Alabama (1932) 287 U.S. 45, 53, 71 [77 L.Ed. 158, 162-163, 171-172, 53 S.Ct. 55, 84 A.L.R. 527] ; In re Newbern (1960) 53 Cal.2d 786, 790 [3 Cal.Rptr. 364, 350 P.2d 116] ; Von Moltke v. Gillies (1948) 332 U.S. 708, 722-723 [92 L.Ed. 309, 320-321, 68 S.Ct. 316] ; Jones v. Cunningham (4th Cir. 1962) 297 F.2d 851, 855.)\\nThe Attorney General contends that the federal records import a presumption that official duty was regularly performed (see Code Civ. Proe., \\u00a7 1963, subd. 15), and that petitioner is therefore not entitled to an evidentiary hearing on the validity of the prior convictions. The presumption of regularity, however, is not a conclusive one, and we do not invoke it to preclude a showing that the record is incomplete or inaccurate. A docket entry that defendant was 11 'duly arraigned' \\\" and \\\" 'informed . of his legal rights, ' \\\" for example, \\\" 'does not state how, when or in what manner' \\\" defendant was informed, \\\"nor does it specify which of his various rights were thus made known to him.\\\" (In re Johnson (1965) 62 Cal.2d 325, 330-331 [42 Cal.Rptr. 228, 398 P.2d 420] ; see also In re Smiley (1967) 66 Cal.2d 606, 622 [58 Cal.Rptr. 579, 427 P.2d 179].) Similarly, the record entry that petitioner appeared with counsel does not state when or how counsel was appointed, nor whether petitioner pleaded guilty with the assistance of an attorney who was his counsel in fact as well as pro forma. Petitioner has the burden of disproving the facts recited in the records. When, as here, he makes a specific offer of reliable proof, he \\\"must be given the opportunity to present . . . testimonial and documentary evidence relevant to the disputed issues.\\\" (Townsend v. Sain (1963) 372 U.S. 293, 322 [9 L.Ed.2d 770, 791, 83 S.Ct. 745] ; Wright v. Dickson (9th Cir. 1964) 336 F.2d 878, 883; see In re Bell (1942) 19 Cal.2d 488, 501 [122 P.2d 22] ; Haacks v. Wainwright (5th Cir. 1968) 387 F.2d 176,179.)\\nThe Attorney General contends that petitioner's failure to challenge the validity of the prior convictions at an earlier time precludes his doing so on habeas corpus. We held in In re Woods, supra, 64 Cal.2d 3, In re Luce, supra, 64 Cal.2d 11, and In re Tucker, supra, 64 Cal.2d 15, that habeas corpus would lie to attack the constitutional validity of foreign prior convictions. The Attorney General points out that the petitioners in those cases attacked state convictions whose unconstitutionality was determined in 1963 in Gideon v. Wainwright, 372 U.S. 335 [9 L.Ed.2d 799, 83 S.Ct. 792, 93 A.L.R.2d 733], after the petitioners' California convictions were entered (see In re Woods, supra, at pp. 7-8), whereas federal courts were required to appoint counsel for indigents since 1938 (Johnson v. Zerbst, supra, 304 U.S. 458), before petitioner was convicted.\\nIt is true that defendants must ordinarily raise a constitutional issue by a pretrial motion to strike the prior conviction from the information or indictment, or by entering a plea denying the prior conviction. (People v. Coffey, supra, 67 Cal.2d 204, 215, 217.) Petitioner's failure to pursue these remedies, however, could not constitute a waiver of the right to a hearing in this case, for at the time of his California conviction in 1959, we had not yet made it clear that defendants could offer extrinsic evidence to disprove facts recited in official records of conviction or to prove that an incomplete record masks violations of constitutional rights. Moreover, to find a waiver in these circumstances would unduly restrict the right to relief from a substantial increase in punishment based on a constitutionally invalid conviction.\\nThe writ is granted and the Superior Court of the County of San Francisco is directed to redetermine petitioner's sentence in People v. Caffey (S.F. Superior Court No. 55643) in accordance with the views expressed herein. The question we have reserved of the constitutionality of the federal statutes can thereafter he reviewed, if necessary, on appeal from the trial court's order resentencing petitioner.\\nMcComb, J., Peters, J., Tobriner, J., Mosk, J., Burke, J., and Sullivan, J., concurred.\\n\\\"Any person convicted under this division for having in possession any narcotic, . . . shall be punished by imprisonment in the county jail for not more than one year, or in the state prison for not more than 10 years. If such person has been previously convicted of any offense under the laws . of the United States, which if committed in this State would have been punishable as an offense described in this division, the previous conviction shall be charged . . . and . if admitted by the defendant, he shall be imprisoned in the state prison for not less than two nor more than 20 years. ' '\\nThese statutes are part of what is sometimes referred to as the Marijuana Tax Act.\\nWe note at the outset that petitioner properly applied for the writ in the court of the county in which he was confined, San Luis Obispo. Pursuant to our decisions in the Woods, Luce, and Tucker eases that court properly ordered the venue changed to the San Francisco Superior Court, the sentencing court, when it appeared that facts were alleged that, if true, would require resentencing. (Cf. Code Civ. Proc., \\u00a7 397, subd. 1; 28 U.S.C. \\u00a7 2241(d).) The San Francisco Superior Court declined to entertain the proceeding, apparently on the erroneous ground that the San Luis Obispo Superior Court had no power to transfer the proceeding. The sentencing court, however, must respect a transfer of a habeas corpus proceeding from the superior court having territorial habeas corpus jurisdiction when that court grants the petition to permit reconsideration of the sentence. The sentencing court must conduct an evidentiary hearing if it determines that such a hearing is necessary and must redetermine the sentence in accordane with its findings. Its order will be appealable as an \\\"order made after judgment, affecting the substantial'rights' ' of the defendant or the People. (Pen. Code, \\u2022\\u00a7\\u00a7 1237, 1238; cf. People v. Stein (1948) 31 Cal.2d 630, 633 [191 P.2d 409].)\\nThis offense would qualify as an ' ' offense under the laws . of the United States which if committed in this State would have been punishable as an offense described ' ' in division 10 of the Health and Safety Code (see former \\u00a711712, now \\u00a7 11500). The transportation and concealment of marijuana in California is punishable under section 11531. See also People v. Machado (1960) 180 Cal.App.2d 63, 67 [4 Cal.Rptr. 110]. Moreover, under former section 11712 one prior conviction was sufficient to support a sentence of imprisonment for not less than two nor more than twenty years. (See fn. 1, supra.)\\nDefendants in Marchetti v. United States and Haynes v. United States asserted the privilege at trial. Defendant in Grosso v. United States asserted the privilege at trial as to some hut not all of the charges against him, but the Supreme Court found no effective waiver of the privilege on the ground that its assertion would have been futile under the preexisting law. (Grosso v. United States, 390 U.S. at pp. 70-71 [19 L.Ed.2d at pp. 913-914]; see also Harris v. United States (8th Cir. 1968) 390 F.2d 616.) There is no indication, however, whether the Marchetti, Grosso, and Haynes eases will be applied to release prisoners whose judgments of conviction had become final at the time of these decisions. Ordinarily, of course, defendants convicted under a statute that is subsequently declared unconstitutional are entitled to release, whether their judgments of convictions are final or not. (See Ex parte Siebold (1879) 100 U.S. 371, 376-377 [25 L.Ed. 717, 719].) When the constitutional infirmity depends on its 'proper assertion\\\" (see Marchetti v. United States, 390 U.S. at p. 42 [19 L.Ed.2d at p. 894]), the result is not so clear.\\nIn these cases the Supreme Court reversed convictions for failing to register and pay the occupational tax for the business of accepting wagers (26 U.S.C. \\u00a7 4411, 4412; Marchetti v. United States) ; for failing to pay the excise tax on the gross amount of all wagers accepted (26 U.S.C. \\u00a7 4401; Grosso v. United States) ; and for possession of unregistered firearms (26 U.S.C. \\u00a75851, 5841; Haynes v. United States).) To comply with these statutes defendants were required to disclose information exnosing them to \\\"substantial and 'real' . . . hazards of incrimination\\\" in areas \\\" 'permeated with criminal statutes.' \\\" (Marchetti v. United States, 390 U.S. at pp. 53, 47 [19 L.Ed.2d at pp. 901, 897].) The court determined that such methods of taxing and regulating unlawful activities contravened the Fifth Amendment privilege against self-incrimination.\\nUnited States v. Covington (S.D. Ohio 1968) 282 F.Supp. 886, holding 26 United States Code section 4744(a) (1) unconstitutional, is the only reported decision we have found applying the Marchetti, Grosso, and Haynes decisions to the Marijuana Tax Act.\\nThe United States Supreme Court has granted certiorari in Leary v. United States (5th Cir. 1967), to consider the cuesti\\u00f3n whether the registration and tax provisions in 26 United States Code sections 4741(a), 4742 and 4744 (a) violate petitioner's privilege against self-incrimination in 1hc light of the Marchetti, Grosso, and Haynes eases. (June 10, 1968; 392 U.S. 903 [20 L.Ed.2d 1362, 88 S.Ct. 2058].)\\n18 United States Code section 545 provides: ' ' Whoever knowingly and willfully, with intent to defraud the United States, smuggles, or clandestinely introduces into the United States any merchandise which should have been invoiced, or makes out or passes, or attempts to pass, through the customhouse any false, forged, or fraudulent invoice, or other document or paper; or whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law . is subject to the prescribed penalties. ' '\\nThe indictment charged that on or about May 24, 1943, petitioner \\\"unlawfully concealed and facilitated the transportation and concealment, after importation, of 15 pounds of marijuana, which had been theretofore imported into the United States of America from the United States of Mexico without the same being invoiced and without proper entry thereof being made, and without declaration thereof being made to any proper officer of the United States, . . . then and there well knowing said merchandise to have been so imported contrary to law at the time . . . [he] concealed and facilitated the transportation and concealment thereof.\\\"\\nThe Attorney General relies on our statement that \\\"The record imports absolute verity. .\\\" (In re Connor (1940) 16 Cal.2d 701, 708 [108 P.2d 10].) That statement, however, was preceded by the observation that 'There is nothing . in the method shown to have b\\u00e9en employed in preparing the record, or in any other matter brought- out by petitioner, which would east a doubt upon the. verity .and authenticity of the [record].\\\" (In re Connor, supra, 16 Cal.2d at pp. 707-708.) The court then proceeded to determine from all the available information that petitioner's claims were unfounded.\\nPrior to the Woods, Luce, and Tucker cases, we limited our examination of foreign convictions to consider whether the foreign crime fit one of the categories established by Penal Code section 644 for the purpose of determining habitual criminality (In re McVickers (1946) 29 Cal.2d 264, 278-279 [176 P.2d 40]) and to determine whether the rendering court had jurisdiction to try the defendant. (See In re Wolfson (1947) 30 Cal.2d 20, 31 [180 P.2d 326].) That a factual hearing may be appropriate and permissible to establish constitutional infirmities did not become clear until 1966 when the Woods, Luce, and Tucker cases were decided.\\nThe fact that petitioner's prior convictions were entered upon pleas of guilty of course does not preclude his contending that he did not have nor waive the assistance of counsel. (Rice v. Olson (1945) 324 U.S. 786, 788-789 [89 L.Ed. 1367, 1369-1370, 65 S.Ct. 989].) The prior convictions that we permitted petitioners to attack in the Woods, Luce, and Tucker eases, for example, were entered upon pleas of guilty. (See also In re Johnson (1965) 62 Cal.2d 325, 333-334 [42 Cal.Rptr. 228, 398 P.2d 420].)\"}"
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+"{\"id\": \"2319625\", \"name\": \"THE PEOPLE, Plaintiff and Respondent, v. ELZIA COLEMAN, Defendant and Appellant\", \"name_abbreviation\": \"People v. Coleman\", \"decision_date\": \"1971-03-24\", \"docket_number\": \"Crim. No. 14283\", \"first_page\": \"436\", \"last_page\": \"438\", \"citations\": \"4 Cal. 3d 436\", \"volume\": \"4\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T00:04:44.971377+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PEOPLE, Plaintiff and Respondent, v. ELZIA COLEMAN, Defendant and Appellant.\", \"head_matter\": \"[Crim. No. 14283.\\nIn Bank.\\nMar. 24, 1971.]\\nTHE PEOPLE, Plaintiff and Respondent, v. ELZIA COLEMAN, Defendant and Appellant.\\nCounsel\\nElzia Coleman, in pro. per., and Jack A. Dahlstrum, under appointment by the Supreme Court, Irwin R. Miller and Dahlstrum, Walton & Butts for Defendant and Appellant.\\nThomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Thomas Kallay, Deputy Attorney General, for Plaintiff and Respondent.\", \"word_count\": \"531\", \"char_count\": \"3143\", \"text\": \"Opinion\\nTHE COURT.\\nElzia Coleman was found guilty of kidnaping for the purpose of robbery. (Pen. Code, \\u00a7 209) and first degree robbery (Pen. Code, \\u00a7 211). In 1964 in an unpublished opinion the Court of Appeal, after concluding that the robbery and kidnaping were incident to one objective, reversed the judgment \\\"insofar as it imposes a sentence for robbery\\\" and affirmed it in all other respects. We denied a petition for hearing. In November 1969 Coleman filed an application with the Court of Appeal for recall of the remittitur, presenting the sole contention that his case should be reconsidered in the light of People v. Daniels (1969) 71 Cal.2d 1119 [80 Cal.Rptr. 897, 459 P.2d 225], The application was denied, and we granted a petition for hearing and transferred the application to this court.\\nIn the course of robbing a retired dentist in his home, Coleman caused him to move through various rooms in search of money. These movements were merely incidental to the robbery and did not substantially increase the risk of harm beyond that inherent in the robbery itself. (People v. Daniels (1969) supra, 71 Cal.2d 1119, 1139.)\\nFor the reasons stated in People v. Mutch, ante, p. 389 [93 Cal.Rptr. 721, 482 P.2d 633], Coleman was therefore convicted of kidnaping to commit robbery under a statute which did not prohibit his acts at the time he committed them, and is entitled to a recall of the remittitur in his appeal and an order vacating the judgment on the kidnaping count.\\nThe cause is retransferred to the Court of Appeal for the Second Appellate District with directions to recall its remittitur in People v. Coleman, Crim. 9245, and to issue a new remittitur vacating the judgment on count I and affirming the judgment on count II.\"}"
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+"{\"id\": \"2324325\", \"name\": \"STATE DEPARTMENT OF CORRECTIONS, Petitioner v. WORKMEN'S COMPENSATION APPEALS BOARD and JERRY I. JENSEN, Respondents\", \"name_abbreviation\": \"State Department of Corrections v. Workmen's Compensation Appeals Board\", \"decision_date\": \"1971-10-28\", \"docket_number\": \"Sac. No. 7895\", \"first_page\": \"885\", \"last_page\": \"891\", \"citations\": \"5 Cal. 3d 885\", \"volume\": \"5\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T23:38:01.924087+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE DEPARTMENT OF CORRECTIONS, Petitioner v. WORKMEN\\u2019S COMPENSATION APPEALS BOARD and JERRY I. JENSEN, Respondents.\", \"head_matter\": \"[Sac. No. 7895.\\nIn Bank.\\nOct. 28, 1971.]\\nSTATE DEPARTMENT OF CORRECTIONS, Petitioner v. WORKMEN\\u2019S COMPENSATION APPEALS BOARD and JERRY I. JENSEN, Respondents.\\nCounsel\\nT. Groezinger, Loton Wells and Philip M. Miyamoto for Petitioner.\\nRupert A. Pedrin, Jon. L. Gateley, Wilke, Fleury, Sapunor & Hoffelt and William A. Gould, Jr., for Respondents.\", \"word_count\": \"2156\", \"char_count\": \"13368\", \"text\": \"Opinion\\nMOSK, J.\\nSection 4553 of the Labor Code provides that the amount of compensation otherwise recoverable by an employee who suffers an industrial injury shall be increased by one-half if the injury results from the serious and wilful misconduct of the employer. The question before us is whether this provision is applicable if the employer is a governmental entity. We answer affirmatively and hold that the Workmen's Compensation Appeals Board (hereinafter the board) acted properly in making an award of additional benefits against petitioner, the State Department of Corrections.\\nJerry I. Jensen sustained an industrial injury to his back in the course of employment as a pharmacist at Folsom State Prison. He filed claims against the Department of Corrections for both normal workmen's compensation benefits and for the increased award permitted by section 4553 of the Labor Code. The board awarded him ordinary compensation and increased the award by one-half because of the serious and wilful misconduct of his employer. The Department of Corrections does not challenge the board's finding that its agents were guilty of the type of conduct described in section 4553, but contends only that the section may not be utilized to impose additional burdens on a governmental entity in view of the proscription found in section 818 of the Government Code.\\nSection 818, which appears in the portion of the Government Code setting forth the liability of public entities and public employees provides, \\\"Notwithstanding any other provision of law, a public entity is not liable for damages awarded under section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.\\\"\\nThis section was added to the code upon a recommendation of the California Law Revision Commission, which commented, \\\"Public entities shall not be liable for punitive or exemplary damages. Such damages are imposed to punish a defendant for oppression, fraud or malice. They are inappropriate where a public entity is involved, since they would fall upon the innocent taxpayers.\\\" (Recommendations Relating to Sovereign Immunity, No. 1\\u2014Tort Liability of Public Entities and Public Employes, 4 Cal.Law Revision Com. Rep. (Jan. 1963) p. 817; see also City of Salinas v. Souza & McCue Construction Co. (1967) 66 Cal.2d 217, 228 [57 Cal.Rptr. 337, 424 P.2d 921].)\\nThere is no problem, in general, in distinguishing between compensatory damages and punitive damages. This court has stated that the latter are assessed to punish a defendant, whereas the purpose of compensatory damages is to compensate a plaintiff for his losses. (Templeton Feed & Grain v. Ralston Purina Co. (1968) 69 Cal.2d 461, 469 [72 Cal.Rptr. 344, 446 P.2d 152]; Gudarov V. Hadjieff (1952) 38 Cal.2d 412, 417 [240 P.2d 621]; Brewer v. Second Baptist Church (1948) 32 Cal.2d 791, 801 [197 P.2d 713].) By definition, punitive damages are in addition to actual damages (Carter v. Agricultural Ins. Co. (1968) 266 Cal.App.2d 805, 807 [72 Cal.Rptr. 462]), and they exceed just compensation (Rest, Contracts, \\u00a7 342, com. a, at p. 561).\\nThe question whether the additional compensation authorized by section 4553 of the Labor Code has as its purpose the punishment of the employer or the compensation of the injured employee was decided many years ago in E. Clemens Horst Co. v. Industrial Acc. Com. (1920) 184 Cal. 180 [193 P. 105, 16 A.L.R. 611]. In that case, the commission, the board's predecessor, had increased an award for normal compensation benefits against a corporation by one-half because it found the corporation was guilty of serious and wilful misconduct. The defendant complained that the statute permitting such an increase was unconstitutional under the provisions of section 21, article XX, of the Constitution, which provided then, as it does currently, that the Legislature was authorized to create a system of workmen's compensation \\\"to compensate\\\" employees for injuries received in the course of their employment irrespective of the fault of any party. The defendant argued that the provision for an increased award for serious and wilful misconduct was by way of punitive and exemplary damages and that such provision was unconstitutional since the Legislature's power was limited by the Constitution to the creation of a system of compensation for employees suffering industrial injuries.\\nThe court agreed with the defendant as to the limitation on the power of the Legislature and held that the provision for additional award would be unconstitutional if it provided for a penalty rather than compensation. However, it upheld the constitutionality of the enactment on the ground that an ordinary award of benefits does not fully compensate an employee for his injuries and other detriment and that the purpose of the additional allowance was to provide more nearly full compensation in those cases in which the employer was guilty of aggravated misconduct.\\nThe court stated, \\\"[The Constitution] does not authorize the giving of jurisdiction to enforce a liability for punitive damages, not given as compensation, but as something over and above compensation for the injury.\\n\\\"But the provision in question is founded upon a different theory. It is obvious from the language [of the statute] . . . and from the [workmen's compensation] act as a whole, that the ordinary schedule of compensation there established was not considered to be full and complete compensation for the injuries received. The purpose was to take a part of the burden imposed by the injury from the injured employee, and transfer that part to the employer to be ultimately borne by the community in general as an addition to the cost of production. . . . [T]he indemnity based upon the loss of earnings 'covers not the whole, but only a part of a percentage of such loss. The risk of actual injuries is thus shared by employer and employee.' . . . All presumptions are to be indulged in favor of the validity of an act of the legislature. It is, therefore, to be presumed the legislature found that the actual injury by loss of earnings and other elements of damage, not including expenses for costs of treatment and the like, would be at least fifty per cent more than the fixed schedule would come to, and that it was deemed just if the injury was caused by willful misconduct of the employer he should be made to pay a greater proportion of the burden, and that the allowance in such a case should be increased by adding fifty per cent thereto. Thus considered, the additional allowance is really for additional compensation in the strict sense, and not for exemplary damages. This being the case, the power to enforce it was properly given to the commission under the provisions of section 21, article XX, of the constitution.\\\" (184 Cal. at pp. 192-193.)\\nIt is manifest from the analysis in Horst that section 4553 of the Labor Code is designed to provide more nearly full compensation to an injured employee rather than to penalize an employer; otherwise the section would be unconstitutional.\\nThe Department of Corrections' contention that the section is punitive in character is based primarily upon Mercer-Fraser Co. v. Industrial Acc. Com. (1953) 40 Cal.2d 102, 108 [251 P.2d 955], and Lambreton v. In dustrial Acc. Com. (1956) 46 Cal.2d 498, 504 [297 P.2d 9], Mercer-Fraser considered in some detail the question of what constitutes serious and wilful misconduct for the purposes of section 4553. In the course of its opinion the court stated, \\\"An award of the type here involved, although denominated and regarded for some purposes as 'increased compensation,' is actually of the nature of a penalty [citations, including the Horst case], and cannot be insured against [citation].\\\" (40 Cal.2d at p. 108.) The statement was repeated in substance in Lambreton.\\nWhile at first blush this rhetoric seems to be at variance with the holding in Horst that increased benefits represent actual compensation for injuries suffered, there is, upon analysis, no necessary incompatibility between the cases. Mercer-Fraser involved the degree of misconduct which would justify a conclusion that an employer was guilty of serious and wilful misconduct. The case held that a finding of such misconduct was improper unless the employer's behavior went significantly beyond mere negligence. In this context a statement that an award of additional compensation is in the \\\"nature of a penalty\\\" suggests only that such a finding should not be made unless the employer's conduct was of an aggravated character. Had Mercer-Fraser intended to determine an award under section 4553 was a penalty in that the statutory purpose was primarily to punish the employer rather than to compensate the .employee, it would have been compelled to overrule Horst. Not only did the Mercer-Fraser decision refrain from overruling Horst, but it cited the latter case with approval. (40 Cal.2d at p. 108.)\\nAlthough an employer against whom an increased award is made under section 4553 is penalized in the sense that he is required to pay a higher amount of compensation by reason of his serious and wilful misconduct than he would have been compelled to pay if his conduct were less culpable, the employee does not receive more than full compensation for his injuries. Thus, the increased award is not a penalty in the sense of being designed primarily to punish the defendant rather than to more adequately compensate the plaintiff.\\nThe distinction between the term \\\"penalty\\\" as used in Mercer-Fraser and as utilized in the context of an award by way of punishing the defendant is recognized in Hanna's text on workmen's compensation. He states, \\\"Even though the additional compensation [provided by section 4553] does not constitute punitive or exemplary damages [citing Horst], it is deemed to be a penalty [citing Mercer-Fraser]. Its imposition, therefore, upon a finding of culpability less than statutorily specified constitutes an unlawful taking of one person's property, and an unwarranted giving of it to another [citing Mercer-Fraser].\\\" (Fns. omitted; 2 Hanna, Cal. Law of Employee Injuries and Workmen's Compensation, \\u00a7 17.02[1].) The same section of this treatise points out that the board has applied section 4553 to governmental agencies. (McDowell v. State Dept. of Highways (1939) 4 Cal.Comp.Cases 144; San Diego v. I.A.C. (1929) 16 I.A.C. 41; Linton v. City of Eureka (1928) 15 I.A.C. 30; Van West v. City of Santa Monica (1928) 15 I.A.C. 10; Santa Monica v. I.A.C. (1928) 15 I.A.C. 87.)\\nIt seems clear to us that section 818 of the Government Code, in referring to \\\"damages imposed primarily for the sake of example and by way of punishing the defendant\\\" contemplates, as the comment to the section by the California Law Revision Commission indicates, punitive damages which are designed to punish the defendant rather than to compensate the plaintiff. Punitive damages are by definition in addition to actual damages and beyond the equivalent of harm done. (Carter v. Agricultural Ins. Co., supra, 266 Cal.App.2d 805, 807; Rest., Contracts, \\u00a7 342, com. a, at p. 561.) In view of these well-settled propositions and the long prevailing rationale of Horst that the increased award provided by section 4553 contemplates more fully compensating the plaintiff for an industrial injury rather than penalizing the employer, we hold that the award made here does not violate section 818 of the Government Code.\\nOur interpretation of section 818 is supported further by section 814.2 of the Government Code, which provides that nothing in the portion of the code relating to the liability of public entities and employees (including \\u00a7 818) shall be construed to impliedly repeal any provision of division 4 of the Labor Code, which includes section 4553. The Law Revision Commission commented on section 814.2: \\\"This section makes clear that the statute relating to the liability of public entities and public employees has no effect on rights under the Workmen's Compensation Act.\\\" Sections 814.2 and 818 of the Government Code would be irreconcilable if we were to interpret the additional award for serious and wilful misconduct as punitive in nature. Our conclusion that such an award is merely more adequate compensation rather than punishment avoids that result.\\nThe award is affirmed.\\nWright, C. J., McComb, J., Peters, J., Tobriner, J., Burke, J., and Sullivan, J., concurred.\\nSection 3294 of the Civil Code provides, \\\"In an action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, express or implied, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.\\\"\\nThe Restatement comments, \\\"All damages are in some degree punitive and preventive; but they are not so called unless they exceed just compensation measured by the harm suffered.\\\" (Rest., Contracts, \\u00a7 342, com. a, at p. 561.)\"}"
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+"{\"id\": \"2338708\", \"name\": \"P. McG. McBEAN, Respondent, v. H. L. MARTIN, Appellant\", \"name_abbreviation\": \"McBean v. Martin\", \"decision_date\": \"1892-09-13\", \"docket_number\": \"No. 14678\", \"first_page\": \"188\", \"last_page\": \"191\", \"citations\": \"96 Cal. 188\", \"volume\": \"96\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T18:25:00.375921+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"P. McG. McBEAN, Respondent, v. H. L. MARTIN, Appellant.\", \"head_matter\": \"[No. 14678:\\nDepartment Two.\\nSeptember 13, 1892.]\\nP. McG. McBEAN, Respondent, v. H. L. MARTIN, Appellant.\\nAssessment for Sewer \\u2014 Action to Enforce Lien \\u2014 Pleadings\\u2014Public Demand of Payment. \\u2014 A complaint in an action to enforce the-lien of an assessment for work performed in the construction of a sewer along the street of a city, under the provision of the act of March 18, 1885 (Stats. 1885, p. 147), which alleges that a demand for the payment of the amount of the assessment was made by going upon the premises- and making a public demand therefor, hut which fails to allege that the defendant or his agent could not he conveniently found, is fatally defective.\\nAppeal from a judgment of the Superior Court of San Bernardino County.\\nThe facts are stated in the opinion of the court.\\nCharles R. Gray, and J. P. Hargrave, for Appellant.\\nC. W. C. Rowell, and Ezra Crossman, for Respondent.\", \"word_count\": \"888\", \"char_count\": \"5054\", \"text\": \"De Haven, J.\\n\\u2014 Action upon an assessment for the construction of a sewer along G Street, in the city of San Bernardino, and to foreclose the alleged lien of such assessment, upon a lot belonging to defendant.\\nThe court found all the allegations of the complaint to be true, and gave judgment in favor of plaintiff, in accordance with the prayer of the complaint. The defendant appeals.\\n1. The judgment cannot be sustained upon the findings, as the complaint does not state facts sufficient to constitute a cause of action. The complaint alleges, in substance, among other matters, that the superintendent of streets made the assessment sought to be enforced, and attached thereto a warrant and diagram, and recorded and delivered the same to the contractor, as required by sections 8 and 9 of the \\\"Act to provide for work upon streets, . and for the construction of sewers within municipalities,\\\" approved March 18,1885. (Stats. 1885, p. 147.) We also construe the complaint as alleging that by said assessment and diagram, the lot upon which plaintiff claims that said assessment is a lien was assessed as the property of defendant, and that defendant was then and still is the owner of said lot. But the complaint fails to show a proper demand for the payment of this assessment within thirty days after the date of the warrant, and such a demand was necessary in order to preserve the lien of the assessment.\\nSection 10 of the act of March 18,1885, before referred to, provides with particularity the manner in which the demand of payment shall be made, and is as follows: \\\" Whenever the person so assessed, or their agents, can not conveniently be found, or whenever the name of the owner of the lot is stated as ' unknown ' on the assessment, then the said contractor, or his assigns, or some person in his or their behalf, shall publicly demand payment on the premises assessed.\\\"\\nThe complaint in this case alleges that the demand for payment of the amount of the assessment was made by going upon the premises and making a public demand therefor, but it is not alleged that the defendant or his agent could not be conveniently found, and it is only in such cases, or when the assessment is made to unknown owners, that the statute permits a public demand upon the premises. This was so held by this court in Guerin v. Reese, 33 Cal. 292, in construing a similar provision found in the act of 1862, relating to streets in San Francisco. (Stats. 1862, p. 397.) In that case Mr. Justice Rhodes, speaking for the court, said: \\\"There are three modes in which the demand may be made: 1. Of the person assessed; 2. Of his agents; and 3. A demand publicly made on the premises assessed. The purpose of the demand is very obvious. \\\" Up to that time, the owner has only constructive notice of the proceedings, from their initiation up to the recording of the warrant, assessment, and diagram; and as by the record a lien is cast upon his property, he is required to be notified, in order that he may take the proper steps for its discharge.....Before the contractor is per-\\nmitted to resort to the third mode of making the demand, he must have exhausted the second as well as the first mode.\\\"\\nThe failure to give defendant actual notice of the assessment under consideration by making a personal demand for its payment, when it could have been conveniently made as required by the statute, may have prevented him from exercising the right of appeal to the city council, given by section 11 of the act under which the assessment was made, and which appeal must be taken within thirty days after the date of the warrant. The object of the statute is to guard against the possi bility of such a result in all cases where the owner of property is known, and it has been assessed to him by requiring a personal demand to be made upon him, when it can be conveniently done. It will thus be seen that the right to receive this notice is substantial, and the failure of the plaintiff to show in his complaint a strict compliance with this essential requirement of the statute is fatal to the judgment.\\nJudgment reversed.\\nMcFarland, J., and Sharpstein, J., concurred.\\n-\"}"
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+"{\"id\": \"2346425\", \"name\": \"D. L. TAYLOR, Respondent, v. J. B. HILL COMPANY (a Corporation), Appellant\", \"name_abbreviation\": \"Taylor v. J. B. Hill Co.\", \"decision_date\": \"1948-02-02\", \"docket_number\": \"L. A. No. 20251\", \"first_page\": \"373\", \"last_page\": \"378\", \"citations\": \"31 Cal. 2d 373\", \"volume\": \"31\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T01:46:14.301714+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"D. L. TAYLOR, Respondent, v. J. B. HILL COMPANY (a Corporation), Appellant.\", \"head_matter\": \"[L. A. No. 20251.\\nIn Bank.\\nFeb. 2, 1948.]\\nD. L. TAYLOR, Respondent, v. J. B. HILL COMPANY (a Corporation), Appellant.\\nClyde E. Cate and Alfred E. Cate for Appellant.\\nOgden, Crocker & Steelman and Samuel Steelman for Respondent.\", \"word_count\": \"2069\", \"char_count\": \"11732\", \"text\": \"CARTER, J.\\nDefendant appeals from a judgment awarding $1,421.50 damages to plaintiff for breach of contract.\\nBy the terms of a contract dated June 6, 1943 (a written instrument drawn by defendant), which is the basis of the action, defendant agreed to sell and plaintiff to purchase a quantity of barley. The quantity, price, quality, grade, etc., are set forth as follows:\\n\\\"Quantity Commodity Price Unit How Packed Sample & Grade 10-12000 sacks 1.95 CWT sked H10 Barley . . . Sack Count Indefinite acet. Remarks Now Harvesting May be More or Less. ' ' Defendant delivered 6,612 sacks, failing to meet the minimum requirement of 10,000 sacks, and for that breach the damages were awarded. It was stipulated that when the contract was negotiated a sample bag of barley marked \\\"H 10\\\" was delivered by defendant to plaintiff.\\nDefendant asserts that it was obligated to deliver only so much barley as was produced that season on the ranch of Pedro Erro and that such quantity was delivered. It urges that the symbol \\\"H 10\\\" mentioned in the contract referred to the barley it was to obtain from' Erro and limited the quantity to be delivered to the amount produced by Erro on his ranch. It purchased barley from Erro to perform the contract. Plaintiff contends that there was no such contingency affecting the quantity delivered, and that the obligation was to deliver the minimum quantity of 10,000 sacks mentioned in the contract.\\nIt is a settled rule that in case of uncertainty in a contract it is construed most strongly against the party who caused the uncertainty to exist\\u2014the party drafting the instrument. (Civ. Code, \\u00a7 1654; Estate of Rule, 25 Cal.2d 1, 13 [152 P.2d 1003, 155 A.L.R. 1319]; Pacific Lbr. Co. v. Industrial Acc. Com., 22 Cal.2d 410 [139 P.2d 892]; 6 Cal. Jur. 307-308.) Viewing the instant contract and circumstances in the light of that rule it may reasonably be inferred that the symbol \\\"H 10\\\" referred to .a certain quality of barley as shown by a sample thereof and not to the source of the barley as limiting the quantity that was sold. The quantity of barley is expressly stated to be 10,000 to 12,000 sacks. The designation \\\"H 10\\\" rather than appearing under the column heading \\\"Quantity\\\" is found under the heading \\\"Sample & Grade,\\\" that is, the quality of the barley. A sample is \\\"A part of anything presented for inspection, or shown as evidence of the quality of the whole.\\\" [Emphasis added.] (Webster's International Dictionary [2d ed.], p. 2210.) Likewise \\\"Grade\\\" deals with quality. It is a position in a scale of quality. This points cogently to the conclusion that the term \\\"H 10\\\" concerned quality and not quantity, or source of the barley. Moreover, a sample \\u2014specimen of barley labelled \\\"H 10\\\" was exhibited to plaintiff advising him of the quality of the barley he was buying. The \\\"H 10\\\" referred to in the contract must, therefore, be the sample exhibited to the buyer to show the quality of the barley. The only reference in the contract which may imply a certain source or amount of grain to be delivered (other than the 10,000 to 12,000 sacks) is the statement that \\\"Sack Count Indefinite acct. Remarks Now Harvesting May be More or Less.\\\" It is reasonable to infer that the \\\"Sack Count\\\" refers to the 10,000 to 12,000 sacks theretofore mentioned, and as stated, that count was \\\"indefinite\\\" to the extent of 2,000 sacks. It may be that the statement merely explained why the quantity was not fixed at a certain figure without variation, that is, the harvesting was the reason for the variation. It is also reasonable to conclude that the barley was not to be limited to any particular source, and by such limitation, the quantity restricted to the productive capacity of that source. If there is doubt whether the last quoted clause (assuming it limits the quantity to a defined source), or the figures under the word \\\"Quantity\\\" controls the quantity, then the latter may prevail under the rule of construction heretofore announced.\\nThe following testimony of a witness familiar with grain transactions and contracts supports the foregoing interpretation : \\\"Q. . . . Referring to the last word on that line, 'H-10,' does that 'H-10' have any significance in the trade? . A. 'H-10' in that case would represent the seller's sample or designation number of that particular lot of barley. Q. By Mr. Steelman : As a matter of trade significance does it indicate the source of the barley 1 A. That is merely a designating sample. The barley would have to equal that lot of barley. It coitld be shipped from any part of the United States, or a foreign country, as long as it equaled that particular sample.\\\" In regard to the meaning of \\\"Sack Count Indefinite\\\" that witness testified on cross-examination : \\\"Well, the contract says 10,000 to 12,000 sacks, sack count indefinite. Inasmuch as they didn't know the exact sack count I would say it would be a minimum of 10,000 and a maximum of 12,000 sacks.\\\" And in speaking of the difference between buying a fixed amount and being limited by the particular amount raised on a certain ranch, he further testified: \\\"Q. Let us take it from this standpoint, Mr. Devendorf. In the event that the farmer that you bought from was just starting in to harvest the crop and he made an estimate that there will be so many sacks from this particular lot of land, and it falls short of his estimation, would you expect to receive any more than he aetu ally produced from the land if you bought that lot? A. It is according to how your contract reads. If you buy the crop produced from the land located so and so, and give a description of the land, if it had a crop failure and there is nothing produced you wouldn't get anything. Q. Then, if I understand you correctly, if you buy John Jones' crop of grain and it hasn't been harvested and it falls short of what his estimate was, you could only expect to get that which he actually received? A. If you was specifically out buying that particular crop; but if he came in with a sample and he sold you a thousand sacks of a certain sample, that would be a different proposition. Q. I think we are getting to understand each other. If you bought a specific lot of grain from a specific ranch you would only feel yourself entitled to receive the grain that was produced on that ranch, is that correct? A. You would buy it subject to crop production in that case and you would only get what was produced on that land. Q. In the other case, if you sold by sample you would be entitled to receive the amount of barley that they had agreed to sell you on the contract. A. Yes. Q. Of like quality. A. Yes. Q. I think I understand you. A. If a farmer could sell you a thousand ton of barley, or I could sell you a thousand ton of barley, and if I didn't raise it I could go down the road and buy it from somebody and give it to you. I am selling it to you on a sample. Q. Then there is a distinction between buying on a sample and buying a specific lot? A. Buying subject to crop production. The Coubt: Is that the trade term that is used when you are purchasing only the product of a specific ranch? The Witness : If you're buying from a ranch, why, you would buy subject to crop production. If he produces it, O. K. If he doesn't produce it, why that is also 0. K. The Coubt : Is that the term that is customarily used when that is the proposal? The Witness : Subject to crop production, yes. . . . Q. What I was trying to find out, Mr. Devendorf, is this. Those words, 'Subject to crop production' are not words that would have to go into that contract that you bought a specific crop from some one? A. To protect yourself you would put it in there. Q. Or language to indicate that? A. Something to that effect, yes.\\\" Hill, an officer of defendant, testified on cross-examination: \\\"Q. Isn't it a fact that the barley that was contained in this sample H-10 could be duplicated all over the world? A. I don't think it is fact, no, sir. Q. Isn't it a fact that barley sells largely according to its weight and grade and not according to its source? A. That is right. Q. And that when a dealer in grain buys barley he buys it according to those facts and not according to what source it comes from? A. Well, owing to what class of barley it is. In this particular case, why, you are perhaps correct, but in other instances you wouldn't be correct. . . . Q. And any experienced grain dealer could, by looking at your grain, determine that that was 38-pound grain and that a certain ten-cent differential would have to be allowed, couldn't he? A. He couldn't tell exactly what it would weigh until he had weighed it, but he could estimate. Q. And having determined that weight he could then determine the price in relation to the standard price that you have mentioned? A. That is right. Q. And 38-pound barley was obtainable all over the world at that particular\\u2022 time, isn't that right? A. I think you are stretching it out, 'all over the world,' a little bit. Q. I will admit that, because there was a war going on. A. You are covering a lot of territory. Q. But at any rate that you could obtain it in various parts of the United States ? A. I presume you could.\\\"\\nOpposed to the foregoing is the testimony of a Mr. Peters, a grain broker, to the effect that he and plaintiff agreed to purchase the barley from defendant as a joint venture or partnership; that he had conversations with Hill (an officer of defendant) indicating the \\\"H-10\\\" referred to a particular lot of barley, namely that grown by Erro on his ranch and that the quantity being sold was governed by the amount harvested from that ranch; that he advised plaintiff of the contingent nature of the amount. Peters' testimony with reference to the joint venture could have been disbelieved by the trier of fact. He stated that the venture was later abandoned. The reason therefor does not appear. Whether \\\"later\\\" meant before or after his conversation with Hill does not appear. He supplied no money in the transaction, thus indicating that there may have been no such arrangement. He told defendant, plaintiff was buying the grain and the contract ran to plaintiff. Plaintiff testified that he purchased the grain from defendant through Peters. There is evidence which indicates Peters was endeavoring to find a purchaser for defendant and he broached the subject to plaintiff. This evidence points to Peters as Hill's agent, refuting the contention of a joint venture between plaintiff and Peters. Certainly the trial court was not bound by the testimony of Peters and Hill as against the inferences which were deducible from the other facts in the case contrary thereto. Thus we have nothing more than a conflict in the evidence and the court could have concluded that Peters was not plaintiff's agent, partner, or eoadventurer. Plaintiff testified (contrary to Peters' testimony) that Peters did not inform him that defendant was selling only a particular lot of grain. Thus the conversation between Hill and Peters could have no bearing upon the construction of the contract.\\nThere is other evidence by Hill and others, but over all we find nothing more than a conflict in the evidence. Under such circumstances the conclusion of the trial court will not be disturbed. (See Estate of Wunderle, 30 Cal.2d 274 [181 P.2d 874]; Estate of Rule, 25 Cal.2d 1 [152 P.2d 1003, 155 A.L.R. 1319].)\\nFor the ioregoing reasons the judgment is affirmed.\\nGibson, C. J., Shenk, J., Edmonds, J., Traynor, J., and Schauer, J., concurred.\"}"
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+"{\"id\": \"2364667\", \"name\": \"A. WEILL, Respondent, v. J. M. DANZIGER, Defendant and Appellant; J. M. KENT et al., Defendants\", \"name_abbreviation\": \"Weill v. Danziger\", \"decision_date\": \"1913-09-17\", \"docket_number\": \"Civ. No. 1328\", \"first_page\": \"688\", \"last_page\": \"690\", \"citations\": \"22 Cal. App. 688\", \"volume\": \"22\", \"reporter\": \"California Appellate Reports\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T20:34:29.674745+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"A. WEILL, Respondent, v. J. M. DANZIGER, Defendant and Appellant; J. M. KENT et al., Defendants.\", \"head_matter\": \"[Civ. No. 1328.\\nSecond Appellate District.\\nSeptember 17, 1913.]\\nA. WEILL, Respondent, v. J. M. DANZIGER, Defendant and Appellant; J. M. KENT et al., Defendants.\\nPrincipal and Agent\\u2014Action for Price of Goods Sold\\u2014Evidence of Agency.\\u2014In this action to recover for goods and merchandise furnished to the defendants, it cannot be said that there is no evidence to sustain the finding of the trial court that the defendant who purchased the goods acted as agent of his codefendants and not as principal.\\nId.\\u2014Appeal\\u2014Sufficiency of Evidence to Support Findings.\\u2014If from the consideration of the evidence on appeal it appears that there was any substantial evidence introduced in support of the findings of the court below, this is all that can be inquired into, for the question as to where the preponderance of the proof may lie is one which addresses itself to the trial court only.\\nId.\\u2014Examination of Witness\\u2014Question Calling for Conclusions-Error on the examination of a witness in propounding a question which calls for his understanding as to a certain matter, is not prejudicial, if he is thereafter examined as to the foundation he has for his \\u201cunderstanding.\\u201d\\nId.\\u2014Briefs\\u2014Rule of Supreme Court Requiring Them to be Printed. The rule of the supreme court which requires printed briefs is applicable to the district court of appeals; and the fact that this court examines the briefs in a case where the rule has been violated does not give assurance that a like violation in the future will be similarly treated.\\nAPPEAL from a judgment of the Superior Court of Kern County and from an order refusing a new trial. J. W. Mahon, Judge.\\nThe facts are stated in the opinion of the court.\\nGeo. E. Whitaker, for Appellant.\\nJ. W. Wiley, for Respondent.\", \"word_count\": \"1044\", \"char_count\": \"6112\", \"text\": \"JAMES, J.\\nPlaintiff herein brought this action to recover for goods, wares, and merchandise which he alleged he had furnished to defendant. Collins and Wiltsee were not served with process, and the cause proceeded to trial as against de fendants Danziger and Kent. Judgment was in favor of plaintiff and against defendant Danziger alone. Motion for a new trial was made and denied, and an appeal was then taken from that order and from the judgment.\\nThe merchandise on account of the purchase price of which this action was brought, was all ordered by and first charged to defendant Kent. Later the charge, at Kent's direction, was transferred to the name of \\\"Lost Hills Syndicate.\\\" The trial court found that Kent in making the purchase of the goods acted as the agent of his eodefendants and not as a principal. The evidence which it is claimed is insufficient to support this finding was mainly given by Kent himself, who testified that he was conducting the business for Danziger and Wiltsee in moving rig irons and operating in the Lost Hills territory. He testified as follows: \\\"They were building rigs and holding down located ground. They were purchasing supplies. I purchased supplies for them from Mr. Weill. They were part of them charged to my account, in my name, with the understanding from Mr. Danziger and Mr. Wiltsee that they would reimburse me when they named the company and then change the account to the company's name. I told Mr. Weill that Mr. Wiltsee and Mr. Danziger would be responsible for these bills. I had authority from them for giving such instructions.\\\" A letter from Danziger to Kent was introduced in evidence, also a telegram. The letter informed Kent that a cheek for seven hundred dollars to be used in connection with expenditures in the Lost Hills was inclosed. The telegram contained instructions from Danziger to Kent to sacrifice rigs and rig irons if necessary to pay the King Lumber Company one thousand dollars. Kent testified that the goods which he purchased from the plaintiff and for which the action was brought were all used in connection with the operations which he was conducting and managing for Wiltsee and Danziger. The haze which enveloped the question as to the precise agreement under which defendants were operating was not clearly dispelled by any of the evidence. Danziger by his testimony admitted that he was associated in some way (not precisely defined or explained) with Kent and Wiltsee, and did not deny that the goods for which plaintiff's charge was made were used in the transaction of that business. He was extremely hazy in his explanation of how he was to be reimbursed for large sums of money which he admitted he furnished to Kent, but he denied that Kent was authorized to make the charge on his behalf for the merchandise which was furnished by plaintiff. All of the evidence introduced seems to have been competent for the purpose of proving the general business in which defendants were engaged and in illustrating the representative capacity in which Kent claims to have acted. It cannot be said that there was no evidence to sustain the finding of the trial court wherein it is held that Kent acted as the agent for Danziger and his codefendants. If from a consideration of the evidence on this review it appears, as it does, that there was any substantial evidence introduced which supports the findings of the court, that is all that can be inquired into, for the question as to where the preponderance of the proof may lie is one which addresses itself to the trial court and to that court only.\\nThere are no other errors specified which call for separate or particular discussion, unless it be the objection raised to that portion of the testimony of Kent wherein he stated that the goods were charged to his account \\\"with the understanding from Mr. Danziger and Mr. Wiltsee that they would reimburse me.\\\" Counsel for defendant Danziger moved to strike out this answer as stating a conclusion of the witness, which motion was denied. While technically the objection as framed was pertinent, still it cannot be said that there was any prejudicial error in allowing the testimony to remain, for the witness thereafter was sufficiently examined as to the foundation which he had for this \\\"understanding.\\\"\\nThe judgment and order are affirmed.\\nAllen, P. J., and Shaw, J., concurred.\"}"
\ No newline at end of file
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+"{\"id\": \"2364703\", \"name\": \"P. N. SNYDER, Appellant, v. PAUL J. DOROSH, Respondent\", \"name_abbreviation\": \"Snyder v. Dorosh\", \"decision_date\": \"1937-09-23\", \"docket_number\": \"Civ. No. 11511\", \"first_page\": \"591\", \"last_page\": \"592\", \"citations\": \"22 Cal. App. 2d 591\", \"volume\": \"22\", \"reporter\": \"California Appellate Reports, Second Series\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T21:04:10.749520+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"P. N. SNYDER, Appellant, v. PAUL J. DOROSH, Respondent.\", \"head_matter\": \"[Civ. No. 11511.\\nSecond Appellate District, Division Two.\\nSeptember 23, 1937.]\\nP. N. SNYDER, Appellant, v. PAUL J. DOROSH, Respondent.\\nAlbert A. Albeck for Appellant.\\nFrederick H. Whitfield for Respondent.\", \"word_count\": \"316\", \"char_count\": \"1821\", \"text\": \"McCOMB, J.\\nFrom an order denying his motion to set aside an order of the superior court, vacating a judgment pursuant to the provisions of section 473 of the Code of Civil Procedure, plaintiff appeals.\\nThe essential facts are:\\nJanuary 23, 1936, judgment was entered in favor of plaintiff. Thereafter on July 22,1936, defendant filed an application under section 473 of the Code of Civil Procedure to vacate the judgment theretofore entered, which motion was granted August 4,1936. April 20,1937, plaintiff made a motion to set aside the order of August 4, 1936. This motion was denied.\\nThis is the sole question necessary for us to determine:\\nMay alleged errors in an order of the trial court vacating a judgment pursuant to the provisions of section 473 of the Code of Civil Procedure, from which no appeal has been taken and which is final, he reviewed upon appeal from an order denying a motion to vacate the prior orderi\\nThis question must be answered in the negative. It is the law that an order not void on its face granting a motion, from which no appeal has been taken and which is final, is not reviewable on appeal from a subsequent order denying a motion to vacate the previous order. (Zschokke v. Lumley, ante, p. 224 [70 Pac. (2d) 495].)\\nIn the instant ease the order of August 4, 1936, was not void on its face and had become final several months prior to the order of April 20, 1937, herein appealed from. Therefore, applying the rule of law set forth above, this court will not review alleged errors in the original order.\\nThe order appealed from is affirmed.\\nGrail, P. J., and Wood, J., concurred.\"}"
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+"{\"id\": \"288016\", \"name\": \"IRA P. RANKIN et al., Respondents, v. THE AMAZON INSURANCE COMPANY, Appellant\", \"name_abbreviation\": \"Rankin v. Amazon Insurance Co.\", \"decision_date\": \"1891-05-26\", \"docket_number\": \"No. 12807\", \"first_page\": \"203\", \"last_page\": \"211\", \"citations\": \"89 Cal. 203\", \"volume\": \"89\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T20:45:05.019743+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"IRA P. RANKIN et al., Respondents, v. THE AMAZON INSURANCE COMPANY, Appellant.\", \"head_matter\": \"[No. 12807.\\nIn Bank.\\n\\u2014 May 26, 1891.]\\nIRA P. RANKIN et al., Respondents, v. THE AMAZON INSURANCE COMPANY, Appellant.\\nFire Insurance \\u2014 Policy \\u2014 Reference to Survey \\u2014 Warranty \\u2014 Representation \\u2014 Rescission. \\u2014 Where a fire insurance policy refers for further particulars to the application and to a survey and diagram on file, described \\u201c as furnished by and made a warranty on the part of the assured, and made a part of the policy,\\u201d the fact that the survey and diagram were not furnished until after the policy was delivered, a'though it might prevent them from operating as a warranty under section 2605 of the Civil Code, does not destroy their effect as a representation of facts made as an inducement for the issuance of the policy, and as such they are evidence which the jury should consider upon an issue as to rescission of the policy.\\nId. \\u2014Policy Payable to Creditors \\u2014 Promise op Creditors \\u2014 Authority for Survey, and Diagram\\u2014Agency for Owners.\\u2014The plaintiffs, creditors of the assured and payees of the policy, having promised to furnish the survey and diagram referred to in the policy, and they having been furnished in accordance with their agreement, and having become a part of the contract, could not object to their introduction in evidence on the ground that the agents who signed them for the owners of the insured property as applicants had no authority to act on behalf of the owners.\\nId. \\u2014 Falsity of Material Representations \\u2014 Rescission of Policy \\u2014. Cancellation. \\u2014 If any of the material representations of an applicant for fire insurance, made as an inducement for the issuance of the policy, are false, the tender by the insurer of the premium, and notice that the policy was canceled, before the commencement of a suit by the insured, operates to rescind the contract, and will defeat the suit.\\nId.\\u2014Employment of Watchman \\u2014 Non-fulfillment of Condition \\u2014 Question of Law. \\u2014 A condition in a policy of insurance upon a mill, that during such time as the mill is idle a watchman shall he employed by the insured \\u201cto be in and about the premises day and night, \\u201d is broken if during the time that the mill was idle but one watchman was employed, who was not instructed to watch the mill at night, and who slept every night in a building distant three or four hundred feet from the mill; and upon such a state of facts it is error to submit to the jury the question whether the insured had performed the conditions of the contract.\\nId. \\u2014 Construction of Policy. \\u2014 Where the language of a policy is ambiguous, it is to be construed most strongly against the insurer, hut where there is no ambiguity, it must be construed, like any other contract, according to the intention of the parties.\\nId. \\u2014 Night-watchman. \\u2014 A man employed to watch in the daytime, and who is permitted to sleep at night, is not a watchman at night.\\nId.\\u2014Negligence of Watchman \\u2014 Employment in Good Faith.\\u2014Although a loss occasioned by the mere fault or negligence of the watchman, unaffected by fraud or design on the part of the insured, is within the protection of the policy, yet, to entitle the insured to recover, it must appear that he has in good faith employed a watchman to perform the duties required by the terms of the policy.\\nId. \\u2014Burden of Proof. \\u2014The insurers having shown that the mill was idle, the burden was then cast upon the insured to show a compliance with the warranty in the employment of the watchman.\\nAppeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.\\nThe facts are stated in the opinion of the court.\\n\\u2022 Haggin, Van Ness & Dibble, for Appellant.\\nThe survey and diagram referred to in the policy became and constituted a part of the contract between the parties, and the statements and promises therein were warranties. (Civ. Code, secs. 2605-2608.) And if such warranties, or any of them, were violated, the policy, from the date of such breach, ceased to bind the company. (Civ. Code, sec. 2612.) The only effect of the want of authority upon the part of Hoyt & Son to sign, if such want of authority existed, would be to deprive the statement and promises of the character of express warranties. (Civ. Code, sec, 2605.) These statements and promises would still operate as representations (Civ. Code, secs. 2571-2577), and if they were materially false, such falsity would operate to avoid the contract. (Civ. Code, sec. 2611.) The burden of proof was upon the defendants to show that during the life of the policy the insured works were idle, having done which, the burden was upon the plaintiffs to show a compliance with the promissory warranty to keep a watchman. (Cowan v. Ph\\u0153nix Ins. Co.,78 Cal. 181; Bobbitt v. L. & L. & G. Ins. Co., 66 N. C. 70; 8 Am. Rep. 494.) In construing policies of insurance, courts are governed by the same general rules which are applicable to other instruments, and effect is to be given to the intention of the parties, to be ascertained in the same method which is employed in the interpretation of other written contracts. (Wells, Fargo & Co. v. Pacific Ins. Co., 44 Cal. 397; Mack v. Rochester German Ins. Co., 106 N. Y. 560; Sugg v. Hartford Ins. Co., 98 N. C. 143; Washington Ins. Co. v. Kelly, 32 Md. 445; Civ. Code, secs. 1636, 1647, 1649; Barlow v. Scott, 24 N. Y. 40.) The failure of the insured to have a watchman on the premises at night was a breach' of the warranty that a watchman employed by the insured should be in and about the premises day and night. (Trojan Mining Co. v. Fireman\\u2019s Ins. Co., 67 Cal. 27; Wenzel v. Commercial Ins. Co., 67 Cal. 438; Sierra M. & N. Co. v. Hartford Ins. Co., 76 Cal. 235; 1 Wood on Insurance, 280; Prov. L. Im. & Inv. Co. v. Masten, 32 Md. 310; Schneider v. Prov. L. Ins. Co., 24 Wis. 28; 1 Am. Rep. 157.) Negligence in a matter as to which the insurers expressly stipulate that they will not assume the risk will work a forfeiture. (May on Insurance, 2d ed., sec. 408; Gates v. Madison Ins. Co., 5 N. Y. 469; 55 Am. Dec. 360.) As there is no conflict in the evidence, and it shows that the insured did not employ a watch man to be in and upon the premises day and night, the verdict should be set aside. (Emerson v. County of Santa Clara, 40 Cal. 543.)\\nDoyle, Galpin & Zeigler, and Philip G. Galpin, for Respondents,\\nThe written contract of insurance specified a survey \\u201cthen on file.\\u201d Until a survey identified as \\u201cthen on file\\u201d is produced, no survey becomes a part of the contract. The written contract cannot be altered by parol so as to read \\u201ca survey to be filed\\u201d; consequently the survey dated December 4th is not identified by the terms of the policy, and is not a part of it, nor of plaintiffs\\u2019 application. (Caldwell v. Center, 30 Cal. 543; 89 Am. Dec. 131.) The watchman clause in the policy, like every other clause, must be construed liberally, and in favor of the assured. Conditions providing for disabilities and forfeitures are to receive, when the intent is doubtful, a strict construction against those for whose benefit they are introduced. (Hoffman v. \\u00c6tna Ins. Co., 32 N. Y. 413, 414; 88 Am. Dec. 337; Livingston v. Sickles, 7 Hill, 255; Breasted v. Farmers\\u2019 etc. Co., 8 N. Y. 303; 59 Am. Dec. 482, Catlin v. Springfield Fire Ins. Co., 1 Sum. 440.) If the watchman was negligent in performing his duty, the policy was not thereby avoided. (Civ. Code, sec. 2629; Waters v. M. L. Ins. Co., 11 Pet. 219, 220; Gates v. Madison Co. Ins. Co., 5 N. Y. 478; 55 Am. Dec. 360; Johnson v. Berkshire Ins. Co., 4 Allen, 388; Sierra Milling Co. v. Fire Ins. Co., 76 Cal. 236.)\", \"word_count\": \"2874\", \"char_count\": \"16162\", \"text\": \"Paterson, J.\\nThis is an action on a fire insurance policy to recover the sum of $548.24.\\nThe policy contained the following clause: \\\"Reference is hereby made to a survey and diagram on file in the office of J. C. Mitchell & Son, which is made a part of this policy, and a warranty on the part of the assured.\\\" The application for the policy was made on November 21st, but was not countersigned or delivered until November 24, 1884. Mitchell & Son, who were insurance brokers, acted on behalf of plaintiffs in procuring the policy, and they promised at the time the application was made to furnish the survey and diagram. The company refused to take the risk unless the brokers would agree to furnish such a survey. A survey and diagram was made by the owners of the property, and a copy thereof, dated December 4, 1884, was presented to the agents of the defendant, but at what precise time it was presented does not appear. On December 3, 1834, the policy was taken to the office of the defendant and the written portion thereof was changed, increasing the amount of the insurance, and another rider, which was duly authenticated and attached, was substituted, which contained the same'reference, quoted above. The survey and diagram consisted of many questions and answers. It was written on the blank form of another insurance company, and was signed \\\"Owens River M. G. & S. Co., by Hoyt & Son, applicants.\\\" The policy ran to the Owens River Iron and Smelting Co. (owners), \\\"loss, if any, payable to Rankin, Brayton & Co.\\\" When this document was offered in evidence, plaintiffs objected to it on the grounds that the insurance had been effected prior to the time the survey was presented to the company, and that Hoyt & Son had no authority to act on behalf of the mining and smelting company. The objection was sustained; the defendant excepted.\\nThe ruling was erroneous. The loss was not payable to the owners of the mine, but to their creditors, Rankin, Brayton & Co., and the question as to the authority of Hoyt & Son is immaterial. Plaintiffs promised to furnish the survey, and it was furnished in accordance with their agreement and became a part of the contract. The admissibility of the evidence does not depend solely upon the reference contained in the rider. The policy itself provides: \\\"For further particulars reference is hereby made to an application and survey, No.-, furnished by and a warranty on the part of the assured,'which is hereby made apart of this policy.\\\" The delay of the plaintiffs in furnishing the survey should not he held to entirely destroy its efficacy as a part of the contract. The fact that the survey was not furnished until after the policy was delivered may have deprived it of any force or effect as a warranty, under section 2605 of the Civil Code; but conceding this to be true, it does not destroy its effect as a representation of facts made as an inducement for the issuance of the policy; and as such it is evidence, which the jury should consider on the issue as to rescission. If any of the material representations were false, the defendant's tender of the premium and notice that the policy was canceled before the commencement of the suit operated to rescind the contract. (Civ. Code, secs. 2580, 2583.)\\nThe policy as first printed and written contained this clause: \\\"It is understood and agreed that during such time as the above mill is idle a watchman shall be employed by the insured to be in and upon the premises day and night.\\\" At the request of the plaintiff this provision was changed by inserting the word \\\"about \\\" in lieu of the word \\\"upon.\\\" The object of the change doubtless was to avoid any controversy, in case of loss, as to whether it was necessary that the watchman should be actually upon the premises on which the insured buildings stood. The change, however, did not accomplish the full purpose intended; for the watchman slept a distance of three hundred or four hundred feet from the mill; and the word \\\" about,\\\" as used, is so uncertain in signification that it cannot be determined therefrom exactly what territory was intended to be covered by it. But however uncertain the promissory warranty may be as to the premises upon which the watchman was required to be, there is no ambiguity in the language with respect to the_ time he was required to watch the prem ises. Where the language of a policy may be understood in more senses than one, it is to be construed most strongly against the insurer, because he frames it, and is supposed to make it as potent as possible in his own favor; but where there is no imperfection or ambiguity in the language, it must be construed, like any other contract, according to the intention of the parties.\\nThe court instructed the jury that \\\"if the assured employed a watchman to be in and about the premises day and night while the mill was idle, then the plaintiff is entitled to recover,\\\" and submitted to them for determination the question whether plaintiffs had performed the conditions of the contract. Cases are cited by respondent in support of the action of the court which hold that under certain watchman clauses it is proper to receive evidence of usage and to submit to the jury the question whether the insured employed a watchman to look after the property in the manner in which men of ordinary care in similar departments of business manage their own affairs of like kind. But they all go off upon the proposition that the terms of the warranty are not explicit as to the time and manner of keeping a watch. Thus in the Massachusetts case, the language of the clause was, \\\"a watchman kept on the premises\\\"; and in the Illinois case, \\\"a watchman to be on the premises constantly during the time until September 1, 1872.\\\" In the latter case plaintiff had employed a day-watchman and a night-watchman, and the only question considered was, w'hether it was necessary for the watchman to be actually on the premises on which the insured buildings were situated.\\nIn the case before us the terms of the warranty are explicit as to the time of keeping a watch, and on the undisputed evidence we think the court ought to have held that the plaintiffs had not complied therewith.\\nThe mill was idle for two months prior to the destruction thereof by fire, and the evidence shows that plain tiffs did not employ a watchman \\\"to be in and about the premises day and night.\\\" A watchman was employed, but he was not instructed to watch the premises at night, and as a matter of fact, slept every night in a building distant three hundred or four hundred feet from the mill. Mr. Minear, the superintendent, testified that McMurray, the watchman, was not instructed to watch the premises during the night; that his instructions were not special, \\\"either at day or night.\\\" In the nature of things, it could not be expected that one man could watch the buildings day and night (only one watchman was employed); but if it be assumed that he could, no one was employed to do so. There is no ambiguity in the phrase \\\"day and night.\\\" \\\"We do not need a dictionary, nor a law boob, nor the testimony of an expert, to tell us that a man who is employed to watch in the daytime, and who is permitted to sleep at night, is not a watchman at night.\\\" (Brooks v. S. F. Ins. Co., 11 Mo. App. 349; Glendale M. Co. v. P. I. Co., 21 Conn. 39; 14 Am. Dec. 309.) It is not a case of mere negligence. If a loss is occasioned by the mere fault or negligence of the watchman, unaffected by fraud or design on the part of the insured, it is within the protection of the policy; but to entitle the insured to recover, it must appear that he has in good faith employed a watchman to perform the duties required by the terms of the warranty. (Trojan Mining Co. v. Fireman's Ins. Co., 67 Cal. 27; Wenzel v. Commercial Ins. Co., 67 Cal. 438; Cowan v. Phoenix Ins. Co., 78 Cal. 181; Waters v. Merchants' etc. Ins. Co., 11 Pet. 219.)\\nIt does not appear whether the watchman was actually on duty at the time the fire occurred. If the fact be considered as material, it is sufficient to say that defendant having shown the mill was idle, the burden of proving a compliance with the warranty rested upon the plaintiffs. (Cowan v. Phoenix Ins. Co., 78 Cal. 181; Wood on Fire Insurance, 2d ed., p. 1136.)\\nThe judgment and order are reversed, and the cause is remanded for a new trial.\\nGaroutte, J., Harrison, J., De Haven, J., and McFarland, J., concurred.\\nBeatty, J., concurring.\\u2014I concur in the judgment, and in the conclusion that the evidence does not show that a watchman was employed as stipulated.\"}"
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+"{\"id\": \"288172\", \"name\": \"GEORGE THRELKEL, Administrator, etc., Respondent, v. H. A. SCOTT, Appellant\", \"name_abbreviation\": \"Threlkel v. Scott\", \"decision_date\": \"1891-05-30\", \"docket_number\": \"No. 13817\", \"first_page\": \"351\", \"last_page\": \"353\", \"citations\": \"89 Cal. 351\", \"volume\": \"89\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T20:45:05.019743+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GEORGE THRELKEL, Administrator, etc., Respondent, v. H. A. SCOTT, Appellant.\", \"head_matter\": \"[No. 13817.\\nIn Bank.\\n\\u2014 May 30, 1891.]\\nGEORGE THRELKEL, Administrator, etc., Respondent, v. H. A. SCOTT, Appellant.\\nFraudulent Conveyance \\u2014 Gift by Insolvent to Wife \\u2014 Fraudulent Intent \\u2014 Pleading. \\u2014 In an action by an administrator, against the wife of the intestate, to recover property alleged to have been voluntarily conveyed by him to her while he was insolvent, the fraudulent intent of the grantor is a fact necessary to be alleged in the complaint.\\nId.\\u2014Voluntary Conveyance\\u2014Fraud as to Creditors \\u2014 Question of Fact. \\u2014A voluntary conveyance by an insolvent debtor is not necessarily fraudulent and void as to creditors, and a fraudulent intent, which is itself a question of fact, will not be necessarily inferred from such facts.\\nAppeal from a judgment of the Superior Court of\\nPlacer County.\\nThe facts are stated in the opinion.\\nF. P. Tuttle, for Appellant.\\nHale & Craig, for Respondent.\", \"word_count\": \"679\", \"char_count\": \"3985\", \"text\": \"Fitzgerald, C.\\n\\u2014 This action was brought by plaintiff, as the administrator of the estate of Robert N. Scott, the deceased husband of the defendant, to compel her to convey to him certain real property described in the complaint, and alleged therein to have been conveyed to her as a gift by her said husband on the day preceding his death, while fatally ill, and when he was indebted largely beyond his ability to pay.\\nIt is further alleged that the whole of the said property so conveyed should be restored to the estate, in or\\\"der that the value atid proceeds thereof may be applied in due course of administration to the payment of the debts and claims due and payable out of the funds of the said estate.\\nThe defendant demurred to the complaint, upon the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was overruled by the court below, and upon defendant filing her answer, judgment was given for the plaintiff on the pleadings in the case, upon which judgment defendant prosecutes this appeal.\\nA question as to pleading, of much importance, is raised by the demurrer in this case, which seems to have been overlooked by counsel, as no reference whatever is made to it in their briefs, and that is, whether the fraud u-lent intent of the grantor, when he executed the conveyance, and w'hich must be proved before plaintiff will be entitled to recover, is a fact necessary to be alleged in the complaint.\\nThe power of the administrator to bring this action is derived solely from section 1589 of the Code of Civil Procedure, and in the exercise of it he is expressly limited by its provisions to actions for the recovery of property fraudulently conveyed by the decedent in his lifetime.\\nAnd the question here naturally suggests itself, whether the fraudulent intent, which is expressly declared by our statute to be a question of fact, is one the allegation of which is necessary to the sufficiency of the complaint.\\nWe think it is, for the very obvious reason that the allegation of fraudulent intent is indispensable for the purpose of showing the plaintiffs authority under the law to bring the action. Nor will such fraudulent intent, which is itself a question of fact, be inferred from the facts stated in the complaint, either for that or any other purpose, for the further reason that a voluntary conveyance by an insolvent debtor is not necessarily fraudulent and void as to creditors. {Jamison v. King, 50 Cal. 136; McFadden v. Mitchell, 54 Cal. 628; Bull v. Bray, ante, p. 286.) Hence it follows that the fraudulent intent is a fact necessary to be alleged in the complaint.\\nAs the complaint in this case contains no such allegation, we are of the opinion that the court erred in overruling the demurrer.\\nWe therefore advise that the judgment be reversed, with direction to the court below to sustain the- demurrer.\\nFoote, O., and Vanclief, C., concurred.\\nThe Court.\\u2014For the reasons given in the foregoing opinion, the judgment is reversed, with direction to the court below to sustain the demurrer.\\nBeatty, C. J., dissented.\"}"
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diff --git a/cal/2884513.json b/cal/2884513.json
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+"{\"id\": \"2884513\", \"name\": \"EMERALD BAY COMMUNITY ASSOCIATION, Plaintiff and Appellant, v. GOLDEN EAGLE INSURANCE CORPORATION, Defendant and Respondent\", \"name_abbreviation\": \"Emerald Bay Community Ass'n v. Golden Eagle Insurance\", \"decision_date\": \"2005-06-29\", \"docket_number\": \"No. G032597\", \"first_page\": \"1078\", \"last_page\": \"1098\", \"citations\": \"130 Cal. App. 4th 1078\", \"volume\": \"130\", \"reporter\": \"California Appellate Reports, Fourth Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T20:58:56.287723+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"EMERALD BAY COMMUNITY ASSOCIATION, Plaintiff and Appellant, v. GOLDEN EAGLE INSURANCE CORPORATION, Defendant and Respondent.\", \"head_matter\": \"[No. G032597.\\nFourth Dist., Div. Three.\\nJune 29, 2005.]\\nEMERALD BAY COMMUNITY ASSOCIATION, Plaintiff and Appellant, v. GOLDEN EAGLE INSURANCE CORPORATION, Defendant and Respondent.\\nCounsel\\nPrenovost Normandin Bergh & Dawe, Michael G. Dawe; Snell & Wilmer, Richard A. Derevan, Marc L. Turman and Michael S. McIntosh for Plaintiff and Appellant.\\nRichard H. Benes; Ault Davis & Schnofeld, Richard P. Edwards; Koeller Nebeker Carlson & Haluck and Sharon A. Huerta for Defendant and Respondent.\", \"word_count\": \"6879\", \"char_count\": \"44337\", \"text\": \"Opinion\\nRYLAARSDAM, J.\\nPlaintiff Emerald Bay Community Association sued defendant Golden Eagle Insurance Corporation for allegedly failing to promptly investigate and respond to a request that it provide a defense in a pending lawsuit and by eventually denying coverage existed for the claim. Before trial, one department of the superior court denied defendant's motion for summary judgment or summary adjudication of issues, which, in part, argued no liability existed because a second insurer had defended and indemnified plaintiff in the underlying lawsuit. At trial held in another department, the court bifurcated certain legal issues and tried them without a jury. (Code Civ. Proc., \\u00a7 592.) It found plaintiff had no supportable damages for breach of contract or breach of the covenant of good faith and fair dealing. In addition, although the court suggested plaintiff amend the complaint to allege an assignment of the second insurer's claims against defendant, plaintiff declined to do so. Only long after the trial court ruled for defendant did plaintiff seek leave to amend its complaint to allege the assignment. The court denied that motion.\\nPlaintiff appeals the judgment, contending: (1) The second judge's ruling constituted an invalid reconsideration of the first judge's denial of the motion for summary judgment/adjudication; (2) it incurred cognizable damages permitting the matter to proceed to a jury trial; and (3) the trial court erred by denying the motion to amend the complaint. We affirm the judgment. Notwithstanding the pretrial motion ruling, the trial judge had jurisdiction to determine whether plaintiff had incurred cognizable damages and, based on the record before us, he correctly determined plaintiff failed to plead or prove it suffered any compensable loss. On the third issue, the court did not abuse its discretion in denying plaintiff's posttrial motion to amend the complaint.\\nFACTS\\nPlaintiff is the homeowners association for a common interest residential development. Diana and George Lopez, the owners of a residence in plaintiff's development, sued plaintiff and the members of its board of directors over a dispute concerning the Lopezes' efforts to construct improvements to their residence. The Lopez complaint sought injunctive relief and damages for the lost use of and damage to their property, and contained a cause of action for discrimination in violation of the Unruh Civil Rights Act (Civ. Code, \\u00a7 51), alleging members of plaintiff's board had made disparaging comments about the Lopezes.\\nPlaintiff carried a $2 million commercial general liability insurance policy issued by defendant. It also had a $1 million self-liquidating directors and officers liability policy and a $10 million excess/umbrella policy, both issued by Federal Insurance Company (Federal). Plaintiff tendered defense of the Lopez action to each insurer. The tender made to defendant appeared in a letter dated June 3, 1998.\\nFederal agreed to provide a defense under its directors and officers policy with a reservation of rights. At trial, the parties stipulated \\\"Federales] . . . policies provided\\\" both a \\\"defense\\\" and \\\"some coverage for the Lopez lawsuit.\\\"\\nThereafter, both plaintiff's counsel as well as Federal's representatives sent several requests to defendant concerning the tender and seeking a determination of coverage under its policy. In March 1999, defendant sent a check for $45,508 to a law firm that had represented plaintiff. Three months later, defendant sent written notice accepting the \\\"tender of this lawsuit subject to a strict reservation of rights.\\\" The letter noted, \\\"As this case develops, facts may arise showing that one or more exclusions previously listed or defenses to coverage may apply. . . . Furthermore, [defendant] expressly reserves and does not waive any right to raise other coverage defenses at any subsequent time, as circumstances may warrant. . . .\\\" (Capitalization omitted.)\\nIn September 2000, defendant sent plaintiff a letter stating that after \\\"receiv[ing] [the Lopezes'] second amended complaint\\\" and having \\\"reviewed [it] in light of the coverages afforded under your policfy],\\\" it had \\\"concluded . . . your polic[y] provide[s] no coverage for the claims set forth in the complaint.\\\" Defendant informed plaintiff that it would \\\"be unable to provide [plaintiff] with a defense or indemnification in this matter.\\\" Nonetheless, the parties stipulated that defendant thereafter paid nearly $200,000 for attorney fees and defense costs on plaintiff's behalf.\\nPlaintiff filed this action against defendant in February 2001, stating causes of action for breach of contract, breach of the covenant of good faith and fair dealing, declaratory relief, and unfair business practices. Plaintiff alleged defendant breached the insurance policy by \\\"failing to promptly respond to the tender of defense\\\" or \\\"thoroughly investigate the [Lopez] claim,\\\" \\\"making false representations\\\" to plaintiff, and \\\"promising to provide coverage for defense and indemnity and then failing and refusing to do so.\\\" The complaint alleged plaintiff had sustained approximately \\\"$600,000.00 in the form of defense costs and fees . . . paid by Federal,\\\" which \\\"have . . . directly reduced the indemnity limits of the Federal policy . . . .\\\" Finally, plaintiff alleged that, since defendant \\\"failed to honor its duty to defend, or . . . participate . in attempting to protect its Insureds,\\\" plaintiff had \\\"retained insurance coverage counsel in order to attempt to the obtain benefits to which it was entitled under its Policies.\\\"\\nIn November 2001, plaintiff settled the Lopez action for $2 million. Federal funded the settlement. The parties stipulated that the amounts paid by Federal for defense and settlement of the Lopez action exceeded $3.3 million. They also stipulated that, of the $11 million in policy limits provided by Federal, \\\"over $6,000,000 remained in unexhausted limits.\\\"\\nIn early 2002, plaintiff and Federal executed a 16-page agreement. It provided: \\\"Federal . . . agreed to conditionally advance and pay, . . . subject to the terms of this Agreement, the Defense Costs incurred . . . , as well as $2 million in settlement of the [Lopez] Action\\\"; plaintiff \\\"in consideration of Federal's agreement to advance the . . . Settlement [and] its payment of defense costs in the [Lopez] Action and . . . [the present suit], . . . hereby commits to repay said sums\\\" and agreed to \\\"pursue [defendant] for damages and, or, [sic] coverage under [defendant's] policy . . . .\\\" Satisfaction of plaintiff's repayment obligation would occur by: \\\"1. Full repayment to Federal . . . ; or, [][] 2. Payment by [plaintiff] to Federal of any compromised amount accepted by Federal; or, [f] 3. Payment of any amount... to Federal which is deemed to constitute satisfaction . . . ; or, [][] 4. The final . . . ruling . . . against [plaintiff] in the legal proceedings against [defendant].\\\" But plaintiff would \\\"only be liable\\\" to repay Federal \\\"from funds actually paid to [plaintiff] by [defendant] . . . .\\\"\\nIn addition, the agreement contained a provision whereby Federal \\\"conditionally assign[ed]\\\" to plaintiff its rights against defendant, \\\"subject to [plaintiff's] compliance with the obligations set forth in this agreement and . . . upon [plaintiff] having the right and standing to assert these claims against [defendant], . . . [I]n the event... it is ever determined that [plaintiff] is without legal standing to assert the conditionally assigned rights, such rights shall immediately revert to Federal.\\\"\\nBefore trial, defendant moved for summary judgment. Noting the only damages alleged in the complaint were the fees and costs paid by Federal, defendant argued \\\"[a]s a matter of law, an insured is not damaged when its insurer pays a claim.\\\" Judge Jonathon H. Cannon heard the motion and denied it, finding genuine issues of material fact existed.\\nThe case was transferred to Judge David R. Chaffee for trial. He granted defendant's request under Code of Civil Procedure section 592 to bifurcate the trial and first try two legal issues without a jury: \\\"[T]he first being . . . defendant's claim that the plaintiff[] . . do[es] not have standing to assert the rights of another insurer who . . . paid a . . . settlement on behalf of the plaintiff\\\"; and \\\"[t]he other . . . has to do with the legal effect of the coverage that was afforded under [defendant's] policy . . . .\\\"\\nDefendant argued plaintiff had suffered no recoverable damages because both it and Federal paid the defense costs and settlement, leaving as the only viable claim Federal's asserted right to reimbursement from defendant. While defendant conceded Federal could assign to plaintiff its rights against defendant, the complaint contained no allegation of an assignment of Federal's claims. After receiving the parties' joint stipulation of facts and numerous exhibits, plus listening to several days of argument, the court granted a motion for judgment in defendant's favor on the first issue. \\\"As a matter of law, [plaintiff] has no supportable damages in this dispute. Its interest was and is entirely subsumed by the carrier Federal, [f] As a matter of law, [plaintiff] has no legal interest to pursue save and except by way of assignment from Federal of its claims . . [1] .[][] I don't believe that [plaintiff] is properly in a position today to pursue the claims that it did not plead by way of . . . the original complaint or by way of amendment. . . .\\\"\\nSeveral months after the court announced its decision, plaintiff moved to amend its complaint to add allegations concerning the circumstances of the Lopez settlement, the damages purportedly incurred by plaintiff as a result of it, and Federal's assignment of its rights to plaintiff. The court denied the motion and entered judgment for defendant.\\nDISCUSSION\\nThe Trial Court's Jurisdiction to Consider Plaintiff's Standing\\nPlaintiff contends Judge Chaffee's ruling constituted \\\"nothing more than a reconsideration of the exact same facts that Judge Cannon had decided in denying the summary judgment motion.\\\" Not so.\\nExcept in circumstances governed by Code of Civil Procedure section 1008, if an action is transferred from one department to another, the latter may issue a ruling inconsistent with a prior interlocutory order made in the first department. (Wrightson v. Dougherty (1936) 5 Cal.2d 257, 265 [54 P.2d 13] [finding \\\"without merit\\\" a claim that where one department overruled a demurrer, \\\"the trial court was bound by the previous order and was without authority . to grant a motion for judgment on the pleadings\\\"]; Haines v. Commercial Mtg. Co. (1928) 206 Cal. 10, 12 [273 P. 35] [order vacating receivership upheld, rejecting claim the order \\\"was invalid for the reason that in making [it the second judge] was exercising appellate jurisdiction over the order of the judge who granted the receivership\\\"]; 2 Witkin, Cal. Procedure (4th ed. 1996) Courts, \\u00a7 237, p. 310.)\\nContrary to plaintiff's analysis, Judge Chaffee's ruling did not amount to a reconsideration of Judge Cannon's order. Code of Civil Procedure section 1008 \\\"applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion . . . .\\\" (Code Civ. Proc., \\u00a7 1008, subd. (e).)\\nJudge Cannon decided a motion for summary judgment, which focused on whether \\\"all the papers submitted show that there is no triable issue as to any material fact and . the moving party is entitled to a judgment . . . .\\\" (Code Civ. Proc., \\u00a7 437c, subd. (c).) Denial of a motion for summary judgment does not establish any fact or resolve any issue; it merely determines that the issues will be decided later, at the time of trial.\\nJudge Chaffee, on the other hand, treated defendant's motion for nonsuit as a motion for judgment under Code of Civil Procedure section 631.8, and granted it at the completion of plaintiff's introduction of evidence in the trial's first phase. Section 631.8 authorizes the trial court to \\\"weigh the evidence and . . . render a judgment in favor of the moving party\\\" once the opposing party \\\"has completed his [or her] presentation of evidence in a trial by the court. . . .\\\" (Code Civ. Proc., \\u00a7 631.8, subd. (a).) Unlike the scope of Judge Cannon's ruling on the summary judgment motion, Judge Chaffee could weigh the evidence and make factual findings based on the evidence presented at trial. (Jordan v. City of Santa Barbara (1996) 46 Cal.App.4th 1245, 1255 [54 Cal.Rptr.2d 340].)\\nIn Community Memorial Hospital v. County of Ventura (1996) 50 Cal.App.4th 199 [56 Cal.Rptr.2d 732], the plaintiffs argued Code of Civil Procedure section 1008 precluded the trial court from granting a motion for summary adjudication because \\\"the issues adjudicated were essentially the same propositions of law which the [defendant] argued and lost on demurrer.\\\" (Community Memorial Hospital v. County of Ventura, supra, at p. 204.) The Court of Appeal disagreed. \\\"[A] motion for summary judgment or adjudication is not a reconsideration of a motion overruling a demurrer. They are two different motions. To hold that a trial court is prevented in a motion for summary judgment or adjudication from revisiting issues of law raised on demurrer is to condemn the parties to trial even where the trial court's decision on demurrer was patently wrong. The result would be a waste of judicial resources, the very evil Code of Civil Procedure section 1008 was intended to avoid. Nothing in the language of section 1008 compels its application to the instant motion for summary adjudication. In fact, to apply it here would run contrary to its purpose.\\\" (Id. at p. 205.) Thus, Judge Chaffee had the authority to decide the standing issue in this case.\\nPlaintiff's Right to Sue Defendant\\nIntroduction\\nThe trial court entered judgment for defendant after finding plaintiff \\\"suffered no cognizable damages\\\" on the first cause of action for breach of contract or the second cause of action for breach of the implied covenant of good faith and fair dealing. Although the complaint's third and fourth counts sought declaratory and injunctive relief, plaintiff does not claim that the trial court erred in failing to rule in its favor under either of them. Thus, we treat any objection to this aspect of the trial court's judgment as waived. (Bagley v. International Harvester Co. (1949) 91 Cal.App.2d 922, 924 [206 P.2d 43] [since appellant presented arguments concerning only the first and second causes of action, the third cause of action was \\\"deemed abandoned\\\"]; Universal Ins. Co. v. Manhattan M. Line (1947) 82 Cal.App.2d 425, 428 [186 P.2d 437] [where appellant makes no argument or reference to two causes of action, any claimed error concerning them is waived].)\\nAs for the trial court's no compensable damages finding, plaintiff challenges it on several grounds. First, plaintiff asserts the postsettlement agreement with Federal entitled it to recover in its own right. Second, plaintiff claims that, since defendant knew about the postsettlement agreement with Federal, the court erred in relying on plaintiff's failure to adequately allege the assignment of Federal's rights. Finally, citing defendant's allegedly unreasonable delay in providing policy benefits and its ultimate denial of them, plaintiff argues it can also recover for breach of the covenant of good faith and fair dealing even though defendant and Federal paid all of its defense and indemnification costs. All of these claims lack merit.\\nBreach of Contract\\nThe complaint alleged defendant breached its contractual duties by failing to timely investigate the Lopez claim or provide plaintiff with a defense in that action, making false representations concerning its intent to protect plaintiff's rights, and ultimately denying it was obligated to defend or indemnify plaintiff for any recovery. The first cause of action genetically alleged plaintiff sustained \\\"financial damages\\\" because of defendant's conduct. But the only specific damage allegation was \\\"$600,000.00 in the form of defense costs and fees which have been paid by Federal.\\\"\\nAn insurer's obligation to provide its insured with a defense arises when it \\\"ascertains facts which give rise to the potential of liability under the policy.\\\" (Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263, 276-277 [54 Cal.Rptr. 104, 419 P.2d 168]; see also Isaacson v. California Ins. Guarantee Assn. (1988) 44 Cal.3d 775, 791 [244 Cal.Rptr. 655, 750 P.2d 297].) If a potential for liability exists, an insurer is obligated to provide an immediate and complete defense to the action. (Buss v. Superior Court (1997) 16 Cal.4th 35, 49 [65 Cal.Rptr.2d 366, 939 P.2d 766].) The fact that one insurer may owe a duty to provide a defense will not excuse a second insurer's failure to honor its separate and independent contractual obligation to defend. (Continental Cas. Co. v. Zurich Ins. Co. (1961) 57 Cal.2d 27, 37-38 [17 Cal.Rptr. 12, 366 P.2d 455].)\\nBut to support an action at law for breach of contract, the plaintiff must show it has suffered damage. (Bramalea California, Inc. v. Reliable Interiors, Inc. (2004) 119 Cal.App.4th 468, 473 [14 Cal.Rptr.3d 302]; Patent Scaffolding Co. v. William Simpson Constr. Co. (1967) 256 Cal.App.2d 506, 511 [64 Cal.Rptr. 187].) \\\"Contractual damages are 'the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.' [Citations.]\\\" (Amato v. Mercury Casualty Co. (1997) 53 Cal.App.4th 825, 831 [61 Cal.Rptr.2d 909]; see also Civ. Code, \\u00a7 3300.) The general measure of damages for a breach of the duty to defend an insured, even if it is ultimately determined there is no coverage under the policy, are the costs and attorney fees expended by the insured defending the underlying action. (Hogan v. Midland National Ins. Co. (1970) 3 Cal.3d 553, 564 [91 Cal.Rptr. 153, 476 P.2d 825]; Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1793 [23 Cal.Rptr.2d 73].) Where the policy provides coverage for the claim and, as occurred in this case, the insured settles the underlying action, an insured may also recover from the insurer the amount of any reasonable, good faith settlement. (Isaacson v. California Ins. Guarantee Assn., supra, 44 Cal.3d atp. 791; Tradewinds Escrow, Inc. v. Truck Ins. Exchange (2002) 97 Cal.App.4th 704, 712 [118 Cal.Rptr.2d 561].)\\nSince defendant paid a portion of plaintiff's legal expenses and Federal, which concededly had an independent obligation to defend and indemnify plaintiff in the Lopez action, paid the balance of those expenses plus the settlement, plaintiff cannot show it suffered any contract damages. (Bramalea California, Inc. v. Reliable Interiors, Inc., supra, 119 Cal.App.4th at pp. 474-475.) The complaint admitted the contractually recoverable \\\"damages\\\" sustained by plaintiff before filing the action consisted of \\\"defense costs and fees which have been paid by Federal . . . .\\\" Plaintiff did not allege that either it or its board was subject to other pending third party claims, the defense of which had exhausted Federal's director's and officer's policy limits. In fact, at trial the parties stipulated to the following facts: (1) \\\"Federales] . . . policies provided some coverage\\\" and \\\"defense for the Lopez lawsuit\\\"; (2) the defense costs in the Lopez action were paid by either defendant or Federal; (3) \\\"the Lopez lawsuit settled for $2,000,000 which was paid by . . . Federal\\\"; and (4) \\\"Federal . . . provided policy limits to the Plaintiff of $11,000,000, of which over $6,000,000 remained . . . unexhausted.\\\" (Italics added.)\\nRingler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165 [96 Cal.Rptr.2d 136] presents an analogous situation. There the insured sued its insurer for breach of contract and breach of the covenant of good faith and fair dealing after the insurer declined to provide a defense in two lawsuits asserting defamation claims. The Court of Appeal affirmed a judgment for the insurer, primarily because there was no evidence the insured made a defamatory statement during the policy period. (Id. at pp. 1186-1187.) But the appellate court also noted, \\\"even if we harbored a reasonable doubt that respondents might have had a duty to defend because of some conceivably arguable possibility or potential of coverage [citations], California law would still not permit Ringler to recover damages for breach of the duty to defend. . . . Ringler suffered no liability in excess of the Policy limits; nor was it compelled or unable to defend itself. Instead, . it was fully protected from having to pay any costs of its own defense by other insurers who were on the risk when Ringler allegedly first slandered the plaintiffs in [the underlying litigation]. [][]... Ringler was adequately protected by other insurers, and respondents' withdrawal from its defense did not enhance its defense liability or increase the costs it incurred in defense of the underlying lawsuits. [Citations.]\\\" (Id. at pp. 1187-1188, italics omitted.)\\nAnother analogous case is Tradewinds Escrow, Inc. v. Truck Ins. Exchange, supra, 97 Cal.App.4th 704, where the court affirmed a defense judgment in an insured's action against its commercial general liability insurer, rejecting a claim for posttender defense costs paid by the insured's errors and omissions carrier. \\\"[S]uch costs may not be recovered where other insurers were on the risk and assumed the insured's defense. [Citation.]\\\" (Id. at p. 712.) Holdings in other cases are also consistent with our decision. (See Bramalea California, Inc. v. Reliable Interiors, Inc., supra, 119 Cal.App.4th at pp. 472-473 [contractor sued for construction defects could not recover attorney fees from subcontractors under indemnity provisions of subcontracts obligating them to pay the contractor's attorney fees where the fees were paid by the contractor's own insurer]; Atlantic Mutual Ins. Co. v. J. Lamb, Inc. (2002) 100 Cal.App.4th 1017, 1042-1043 [123 Cal.Rptr.2d 256] [insured who settled with one insurer for an unallocated portion of the defense and settlement costs incurred can only \\\"recover . . . the balance of the unreimbursed indemnification expense that it incurred\\\"]; Prichard v. Liberty Mutual Ins. Co. (2000) 84 Cal.App.4th 890, 909 [101 Cal.Rptr.2d 298] [where multiple insurers potentially provide coverage, an insured cannot insist the \\\"insurers should each be required to pay the whole of an attorney's bill\\\"]; Ceresino v. Fire Ins. Exchange (1989) 215 Cal.App.3d 814, 823 [264 Cal.Rptr. 30] [where one insurer paid for insured's defense in underlying litigation, second insurer's failure to do so \\\"was of no consequence\\\" to insured].)\\nAs explained in Fireman's Fund Ins. Co. v. Maryland Casualty Co. (1998) 65 Cal.App.4th 1279 [77 Cal.Rptr.2d 296], \\\"The fact that several insurance policies may cover the same risk does not increase the insured's right to recover for the loss, or give the insured the right to recover more than once. Rather, the insured's right of recovery is restricted to the actual amount of the loss. Hence, where there are several policies of insurance on the same risk and the insured has recovered the full amount of its loss from one or more, but not all, of the insurance carriers, the insured has no further rights against the insurers who have not contributed to its recovery. Similarly, the liability of the remaining insurers to the insured ceases, even if they have done nothing to indemnify or defend the insured.\\\" (Id. at p. 1295, italics omitted.)\\nCiting the postsettlement agreement, which described Federal's defense and indemnification payments as an \\\"advance\\\" and required plaintiff to pursue defendant to recover them, plaintiff argues it was entitled to \\\"sue in its own capacity.\\\" But plaintiff's argument ignores the stipulated facts and the effect of the foregoing cases. The parties conceded Federal's policies both obligated it to defend plaintiff and afforded at least some coverage for the claims asserted in the Lopez action. Consequently, Federal also had an immediate obligation to provide plaintiff and its board of directors with a defense in that lawsuit and an obligation to contribute to the settlement. The mere fact plaintiff and Federal agreed between themselves to characterize Federal's payments as a loan does not alter the legal effect of what occurred. Defendant's alleged liability for the breach of its contractual obligations was reduced to the extent both it and Federal paid the Lopez litigation expenses and by the amount Federal paid to settle that case.\\nAlternatively, plaintiff argues it can enforce Federal's rights in this action. First, we note the trial judge correctly acknowledged \\\"[t]he complaint was never amended to allege the assignment\\\" of Federal's claim against defendant. While the court afforded plaintiff an opportunity to amend the complaint, it declined to do so. Plaintiff's counsel argued \\\"[t]he pleadings don't need to be amended\\\" because Federal's rights \\\"emanate[d]\\\" from plaintiff's rights against defendant, and the postsettlement agreement \\\"acknowledged we had the right to pursue the rights in the first place . . . .\\\" This assertion is wrong.\\nContrary to plaintiff's suggestion, the absence of an assignment allegation did not amount to a mere technicality. The pleadings establish the scope of an action and, absent an amendment to the pleadings, parties cannot introduce evidence about issues outside the pleadings. (Trafton v. Youngblood (1968) 69 Cal.2d 17, 32 [69 Cal.Rptr. 568, 442 P.2d 648]; Hughes v. Blue Cross of Northern California (1989) 215 Cal.App.3d 832, 858 [263 Cal.Rptr. 850].) Generally, one suing as an assignee must allege and prove the assignment to recover on the assigned claim. (Ford v. Bushard (1897) 116 Cal. 273, 276 [48 P. 119]; Sterling Adjustment Co. v. Laher Auto Spring Co. (1931) 116 Cal.App. 100, 101 [2 P.2d 408].) However, unless defendant could show it was misled or would be prejudiced by plaintiff's failure to allege the assignment, the trial court would have probably abused its discretion if it denied recovery solely on this ground. (Casey v. Overhead Door Corp. (1999) 74 Cal.App.4th 112, 121-122 [87 Cal.Rptr.2d 603], disapproved on other grounds in Jimenez v. Superior Court (2002) 29 Cal.4th 473, 481, fn. 1 [127 Cal.Rptr.2d 614, 58 P.3d 450].)\\nBut the question arises, what claim could Federal assert against defendant? Federal was not a party to the insurance policy defendant issued to plaintiff, and generally, only a party to the contract may sue for breach of the agreement's terms. (Seretti v. Superior Nat. Ins. Co. (1999) 71 Cal.App.4th 920, 929 [84 Cal.Rptr.2d 315].) Thus, Federal could not sue defendant for the latter's failure to honor its contractual obligations to plaintiff. (Gulf Ins. Co. v. TIG Ins. Co. (2001) 86 Cal.App.4th 422, 430 [103 Cal.Rptr.2d 305].)\\nWhat remains is Federal's right to seek contribution from defendant for the amount of the payment exceeding its proportionate share of the defense and indemnification costs incurred in the Lopez action. (Bramalea California, Inc. v. Reliable Interiors, Inc., supra, 119 Cal.App.4th at p. 475, fn. 5.) Equitable contribution is a separate and distinct cause of action from one for breach of contract; it \\\"permits reimbursement to the insurer that paid on the loss for the excess it paid over its proportionate share of the obligation\\\" so as to \\\"accomplish substantial justice by equalizing the common burden shared by coinsurers, and to prevent one insurer from profiting at the expense of others. [Citations.]\\\" (Fireman's Fund Ins. Co. v. Maryland Casualty Co., supra, 65 Cal.App.4th at p. 1293.) Thus, a claim for equitable contribution is based on a set of operative facts different from the factual allegations in plaintiff's complaint. More importantly, this cause of action limits recovery to that portion of the defense and settlement costs exceeding Federal's proportionate share. The \\\"right of equitable contribution . is not based on any right of subrogation to the rights of the insured, and is not equivalent to ' \\\"standing in the shoes\\\" ' of the insured. [Citations.]\\\" (Id. at p. 1294.) \\\" 'This right is not a matter of contract, but flows \\\" 'from equitable principles designed to accomplish ultimate justice in the bearing of a specific burden.' \\\" [Citations.] The idea is that the insurers are \\\"equally bound,\\\" so therefore they \\\"all should contribute to the payment.\\\" [Citation.]' [Citation.]\\\" (Id. at p. 1295.)\\nPlaintiff sued defendant for breach of contract and breach of the covenant of good faith and fair dealing, not as the assignee of Federal's equitable contribution claim. It sought compensatory and punitive damages, not an apportionment of the defense costs and settlement paid in the Lopez action. As the trial judge recognized, \\\"there was never any claim for contribution made in this complaint. This is strictly a claim based upon the breach of contract, breach of the [covenant] of good faith and fair dealing.\\\" Consequently, the trial court properly found plaintiff failed to establish any compensable damages supporting its breach of contract cause of action.\\nBreach of the Covenant of Good Faith and Fair Dealing\\nThe complaint's second count alleged defendant's \\\"conduct. . . constitutes a tortious violation of the covenant of good faith and fair dealing in the [p]olicy\\\" and sought recovery of actual, special, and punitive damages. Plaintiff argues it is entitled to sue defendant in tort because \\\"an insurer may be liable in bad faith for an unreasonable delay in payment or other misconduct despite full payment on the claim,\\\" and it has suffered additional damages \\\"not compensated by Federal.\\\" (Italics omitted.) Defendant contends plaintiff cannot recover on this ground because \\\"[t]here is no dispute in this case that [plaintiff] was always adequately defended and that defense was paid for by [defendant] and Federal.\\\"\\nIn addition to the right to sue an insurer in contract, if the insurer acts unreasonably and without proper cause in failing to investigate a claim, refusing to provide a defense, or either delaying or failing to pay benefits due under the policy, the insured can sue in tort for breach of the covenant of good faith and fair dealing. (Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 433 [58 Cal.Rptr. 13, 426 P.2d 173]; Amato v. Mercury Casualty Co., supra, 53 Cal.App.4th at p. 831.) \\\"Insurance contracts are unique in nature and purpose. [Citation.] An insured does not enter an insurance contract seeking profit, but instead seeks security and peace of mind through protection against calamity. [Citation.] The bargained-for peace of mind comes from the assurance that the insured will receive prompt payment of money in times of need. [Citation.] Because peace of mind and security are the principal benefits for the insured, the courts have imposed special obligations, consonant with these special purposes, seeking to encourage insurers promptly to process and pay claims. . [][]... To avoid or discourage conduct which would thus frustrate realization of the contract's principal benefit (i.e., peace of mind), special and heightened implied duties of good faith are imposed on insurers and made enforceable in tort.\\\" (Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1148 [271 Cal.Rptr. 246].)\\nNonetheless, where one insurer fully protects the insured by providing a defense and full coverage for a claim, a second insurer's refiisal to defend generally cannot support a tort action for breach of the covenant of good faith and fair dealing because the latter's conduct will not enhance the insured's cost of defending itself or its exposure to liability. (Ringler Associates, Inc. v. Maryland Casualty Co., supra, 80 Cal.App.4th at pp. 1187-1188; Donahue Constr. Co. v. Transport Indem. Co. (1970) 7 Cal.App.3d 291, 303-304 [86 Cal.Rptr. 632].) Here, plaintiff has even less cause to complain since its defense costs were fully covered by both of its insurers. The complaint alleged Federal provided plaintiff with a defense only under its directors and officers policy, which \\\"did not provide coverage for 'property damage' or 'bodily injury' and hence did not indemnify [plaintiff] against those elements of the Lopez lawsuit[] . . . .\\\" (Underscoring omitted.) Plaintiff also alleged \\\"Federal's . . . policy was 'self-liquidating,' \\\" and Federal had already paid litigation expenses exceeding $600,000. But, as previously noted, plaintiff did not plead or prove it was subject to other third party claims exhausting Federal's policy limits. In addition, plaintiff stipulated at trial that Federal's \\\"policies provided some coverage\\\" (italics added) and a \\\"defense for the Lopez lawsuit,\\\" plus Federal's policy limits were \\\"$11,000,000, of which over $6,000,000 remained . . . unexhausted . . . .\\\" (Italics added.) Finally, plaintiff stipulated that defendant contributed nearly $245,000 towards its defense in the Lopez action. Thus, the record establishes plaintiff was fully protected from both the expense of litigation and the exposure to liability in that lawsuit.\\nWhile the Supreme Court recognized an exception to the foregoing rule in Wint v. Fidelity & Casualty Co. (1973) 9 Cal.3d 257 [107 Cal.Rptr. 175, 507 P.2d 1383], that case is distinguishable from the present appeal. There the insured had two liability policies, one with a limit of $10,000, and a second carrying a limit of $100,000. Only the first insurer agreed to defend the insured against a third party action, and he entered into an $80,000 consent judgment, assigning his rights against the latter insurer to the plaintiff. The Supreme Court rejected the claim that the first insurer's defense rendered the second insurer's failure to do so \\\"of no consequence . . . .\\\" (Id. at p. 263.) \\\"[A] defense by an insurer whose policy has a limit far below the amount claimed cannot be equated to the defense of an insurer who stands to lose 10 times as much as the insurer who defends . . . .\\\" (Ibid.) That is not the situation presented in this case.\\nNor can plaintiff establish it suffered any additional damages proximately caused by defendant's alleged misconduct. \\\"Tort damages are 'the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.' [Citations.]\\\" (Amato v. Mercury Casualty Co., supra, 53 Cal.App.4th at p. 831; see also Civ. Code, \\u00a7 3333.) Since a tort action for breach of the covenant of good faith and fair dealing \\\"is one seeking recovery of a property right, not personal injury,\\\" to prevail the insured must show proof of economic loss. (Gourley v. State Farm Mut. Auto. Ins. Co. (1991) 53 Cal.3d 121, 127, 128 [3 Cal.Rptr.2d 666, 822 P.2d 374]; accord Continental Ins. Co. v. Superior Court (1995) 37 Cal.App.4th 69, 86 [43 Cal.Rptr.2d 374] [\\\"In the absence of any economic loss there is no invasion of plaintiffs' property rights to which their alleged emotional distress over Continental's denial and delay could be incidentally attached. In short, there would be no legal basis for\\\" tort relief] (italics omitted).)\\nPlaintiff cites three categories of damages allegedly resulting from defendant's purported breach of the covenant of good faith and fair dealing: (1) \\\"[increased insurance premiums\\\" incurred \\\"[a]fter Federal funded the majority of defense costs and the entire settlement,\\\" (2) \\\"attorneys' fees [incurred] in the Lopez action . in connection with a 'defensive' cross-complaint . . . filed on [plaintiff's] behalf,\\\" and (3) attorney fees incurred \\\"to prosecute this action against [defendant].\\\" As to the first and second categories, plaintiff's argument lacks merit simply because the complaint does not mention them. Special damages must be pleaded with particularity. (MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 547-548 [343 P.2d 36]; Diodes, Inc. v. Franzen (1968) 260 Cal.App.2d 244, 257 [67 Cal.Rptr. 19].) Thus, even assuming plaintiff might otherwise seek these sums, the trial court properly found plaintiff could not recover them in this litigation.\\nIn any event, plaintiff's special damage claims lack merit. Concerning the alleged increase in insurance premiums, except for workers' compensation insurance where the rating system used to set premiums inextricably links the amount of an insured's premium to the insurer's timely handling of prior claims (see Security Officers Service, Inc. v. State Compensation Ins. Fund (1993) 17 Cal.App.4th 887, 897 [21 Cal.Rptr.2d 653]), the cost of future insurance premiums \\\"implicates the marketplace aspect of [an insured's] relationship with [the insurer] . . . .\\\" (New Plumbing Contractors, Inc. v. Nationwide Mutual Ins. Co. (1992) 7 Cal.App.4th 1088, 1096-1097 [9 Cal.Rptr.2d 469]; see also Jonathan Neil & Assoc., Inc. v. Jones (2004) 33 Cal.4th 917, 939 [16 Cal.Rptr.3d 849, 94 P.3d 1055] [generally an insurer's ability to charge a premium \\\"will be disciplined by competition among insurers\\\"].) Several factors determine how much plaintiff will have to pay for future liability insurance coverage. Since Federal admittedly had an independent obligation to contribute to the defense and settlement of the Lopez action, it cannot be concluded that plaintiff's insurance premiums would not have increased in any event. The causal relationship between plaintiff's claim that its insurance premiums have increased and defendant's alleged wrongful failure to defend and indemnify it in the Lopez action is too tenuous to support recovery of this expense as special damages.\\nAs for the fees incurred to file a cross-complaint in the Lopez action, plaintiff fails to refer us to any citable legal authority supporting recovery in tort for litigation expenses incurred to seek affirmative relief against a third party in the underlying lawsuit. Liability insurance policies impose on an insurer the obligations to defend and indemnify an insured, but these policies generally do not impose an obligation to pursue claims for affirmative relief against third parties. (James 3 Corp. v. Truck Ins. Exchange (2001) 91 Cal.App.4th 1093, 1104 [111 Cal. Rptr. 2d 181]; Barney v. Aetna Casualty & Surety Co. (1986) 185 Cal.App.3d 966, 975 [230 Cal.Rptr. 215].) Plaintiff does not identify any provision in defendant's policy supporting a contrary result. Thus, plaintiff's payment of these expenses did not proximately result from defendant's alleged misconduct concerning the Lopez lawsuit.\\nPlaintiff's third category of special damages concerns so-called Brandt fees. In Brandt v. Superior Court (1985) 37 Cal.3d 813 [210 Cal.Rptr. 211, 693 P.2d 796], the Supreme Court held: \\\"When an insurer's tortious conduct reasonably compels the insured to retain an attorney to obtain the benefits due under a policy, it follows that the insurer should be liable in a tort action for that expense. The attorney's fees are an economic loss\\u2014damages\\u2014 proximately caused by the tort. [Citation.] These fees must be distinguished from recovery of attorney's fees qua attorney's fees, such as those attributable to the bringing of the bad faith action itself. What we consider here is attorney's fees that are recoverable as damages resulting from a tort in the same way that medical fees would be part of the damages in a personal injury action.\\\" (Id. at p. 817; see also Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 806 [16 Cal.Rptr.3d 374, 94 P.3d 513].)\\nUnlike the claims for increased insurance premiums and the litigation expenses for its cross-complaint, the complaint does allege plaintiff \\\"retained insurance coverage counsel in order to attempt to obtain the benefits to which it was entitled under its [p]olicies.\\\" But the record establishes plaintiff was not reasonably compelled to retain coverage counsel to protect its rights. The admissions in plaintiff's complaint, plus the parties' stipulation at trial established the following undisputed facts: Federal's policies provided some coverage for the Lopez lawsuit, thus triggering its obligation to defend plaintiff in that action; Federal paid the bulk of defense costs incurred in the Lopez lawsuit plus the settlement; and defendant paid the balance of the funds expended for plaintiff's defense.\\nTo support a bad faith action, plaintiff needed to establish actual financial loss, not merely a potential that it may suffer a loss sometime in the future. (Waters v. United Services Auto. Assn. (1996) 41 Cal.App.4th 1063, 1078 [48 Cal.Rptr.2d 910].) The record shows Federal continuously defended plaintiff in the Lopez action and ultimately paid a settlement on plaintiff's behalf. Because plaintiff received the benefit of a complete defense from both Federal and defendant, it had no claim against defendant for benefits that would support recovery of Brandt fees.\\nAs a result, plaintiff cannot show it suffered any cognizable injury in either contract or tort.\\nPlaintiff's Motion to Amend the Complaint\\nFinally, plaintiff contends the trial court abused its discretion in denying its posttrial motion to formally amend the complaint to allege the assignment received from Federal and to include causes of action for contribution and subrogation. Plaintiff cites the general rule of liberality in allowing amendments to pleadings, and argues its \\\"motion was timely given the unique circumstances of this case\\\" and the amended complaint would not have prejudiced defendant.\\nCode of Civil Procedure section 473, subdivision (a)(1) permits a court, \\\"in furtherance of justice,\\\" to \\\"allow a party to amend any pleading . . . in any . . . respect.\\\" The trial court's ruling on a motion to amend a pleading is reviewed under an abuse of discretion standard (Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 135 [125 Cal.Rptr. 59]), and the appellant has the burden of establishing its discretion was abused. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612 [107 Cal.Rptr.2d 489].) Generally, \\\"the trial court has wide discretion in determining whether to allow the amendment, but the appropriate exercise of that discretion requires the trial court to consider a number of factors: 'including the conduct of the moving party and the belated presentation of the amendment. [Citation.] . . . The law is well settled that a long deferred presentation of the proposed amendment without a showing of excuse for the delay is itself a significant factor to uphold the trial court's denial of the amendment. [Citation.]' [Citation.] 'The law is also clear that even if a good amendment is proposed in proper form, unwarranted delay in presenting it may\\u2014of itself\\u2014be a valid reason for denial.' [Citation.]\\\" (Leader v. Health Industries of America, Inc., supra, 89 Cal.App.4th at p. 613; see also Green v. Rancho Santa Margarita Mortgage Co. (1994) 28 Cal.App.4th 686, 692 [33 Cal.Rptr.2d 706].)\\nContrary to plaintiff's assertion, it failed to timely seek to amend the complaint. Plaintiff and Federal executed their postsettlement agreement well before trial began, but plaintiff took no action to amend its complaint to assert the assignment contained in that agreement. During trial the court suggested plaintiff amend its complaint, but plaintiff rejected the proposal. The trial court announced its intended decision at the end of trial in October 2002, ordering defendant to prepare a judgment. But plaintiff waited three months before filing its motion to amend the complaint. The motion did not provide an excuse for this delay. Under the circumstances, the trial court did not err in denying the posttrial motion to amend the complaint.\\nDISPOSITION\\nThe judgment is affirmed. Respondent shall recover its costs on appeal.\\nSills, P. 1, and Bedsworth, J., concurred.\"}"
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+"{\"id\": \"301007\", \"name\": \"JAMES WILLIAM TURNER, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; THE PEOPLE, Real Party in Interest\", \"name_abbreviation\": \"Turner v. Superior Court\", \"decision_date\": \"2003-01-30\", \"docket_number\": \"No. D039787\", \"first_page\": \"1046\", \"last_page\": \"1065\", \"citations\": \"105 Cal. App. 4th 1046\", \"volume\": \"105\", \"reporter\": \"California Appellate Reports, Fourth Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T23:50:57.981244+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JAMES WILLIAM TURNER, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.\", \"head_matter\": \"[No. D039787.\\nFourth Dist., Div. One.\\nJan. 30, 2003.]\\nJAMES WILLIAM TURNER, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.\\nCounsel\\nSteven J. Carroll, County Public Defender, Matthew C. Braner and Stephen Cohan, Deputy County Public Defenders, for Petitioner.\\nNo appearance for Respondent.\\nPaul J. Pfingst, District Attorney, Gregory Thompson, Assistant District Attorney, D. Michael Ebert and Anthony Lovett, Deputy District Attorneys, for Real Party in Interest.\", \"word_count\": \"6649\", \"char_count\": \"41961\", \"text\": \"Opinion\\nHALLER, J.\\nThis case raises the issue of the circumstances under which an individual may be found to be a sexually violent predator under the Sexually Violent Predators Act (SVPA) after a jury has previously determined the person was not a sexually violent predator and the district attorney then files a new commitment petition after a new custodial term resulting from a parole revocation. We conclude that although the prior jury determination does not necessarily bar a subsequent SVPA petition after a new custodial term, in the subsequent proceeding the People may not relitigate the finding that the individual was not a sexually violent predator at the time of the prior release. Therefore, to establish probable cause on the subsequent petition, the district attorney must present evidence of changed circumstances affecting this factual determination.\\nApplying these principles, we determine the district attorney did not present sufficient evidence of changed circumstances to support a finding of probable cause to believe James William Turner was a sexually violent predator at the time of his scheduled release from his parole revocation custody. We therefore issue a writ ordering the trial court to dismiss the SVPA petition filed on January 24, 2002. (Welf. & Inst. Code, \\u00a7 6602.)\\nFactual and Procedural Summary\\nTurner has a long history of violent criminal behavior, including rapes and assaults. In August 1984, Turner was convicted of committing forcible oral copulation and forcible oral copulation in concert against a victim in jail, and was sentenced to nine years. (Pen. Code, \\u00a7 288a, subds. (c) & (d).) In January 1985, Turner was convicted of another forcible oral copulation against two victims in jail, and was sentenced to a consecutive term of 16 years. (Pen. Code, \\u00a7 288a, subd. (c).)\\nAfter being incarcerated for more than 14 years, Turner was scheduled to be released in 1998. Before this release, in May 1998, the district attorney filed a petition alleging that Turner was a sexually violent predator under the SVPA. The superior court found probable cause for the petition, and the matter was tried before a jury. \\\"When the jury was unable to agree on a verdict, the court ordered a second trial. (See People v. Turner (2000) 78 Cal.App.4th 1131, 1135 [93 Cal.Rptr.2d 459] (Turner I).) At the second trial, the prosecution called as witnesses two forensic psychologists, Dr. Gary Zinik and Dr. Hy Malinek, who opined that Turner suffered from sexual sadism, a type of paraphilia, and had an antisocial personality disorder, and these mental disorders would likely result in Turner committing sexually violent predatory offenses upon his release. (Id. at pp. 1136-1138.) Based on this evidence, the jury returned a verdict finding Turner was a sexually violent predator (id. at p. 1139), and the court thus committed Turner to the Atascadero State Hospital (Atascadero) for treatment for two years.\\nToward the end of this two-year period, the district attorney filed a new petition seeking to recommit Turner for another two years under the SVPA. At the ensuing jury trial, the prosecution presented the opinions of two Atascadero psychologists (not Dr. Zinik or Dr. Malinek) to support its allegations that Turner continued to qualify as a sexually violent predator. Turner presented opposing viewpoints from two different psychologists. At the conclusion of the trial, on June 18, 2001, the jury found Turner was not a danger to the health and safety of others and was not likely to engage in acts of sexual violence upon his release, and therefore that he was not a sexually violent predator.\\nBased on these findings, the court released Turner from custody the next day. Turner was placed on parole in the high-risk sex offender program, which required him to comply with numerous highly restrictive parole conditions. Three months later, in mid-September 2001, Turner was charged with violating his curfew condition. According to his parole officer, Turner was residing at a downtown hotel in early September 2001, when he was specifically told to comply with his 8:00 p.m. to 8:00 a.m. curfew during the weekend of a downtown music festival. However, Turner's electronic monitoring system showed that he left his room about 9:00 on Saturday night of that weekend, and his whereabouts were unknown until Monday afternoon when he arrived for his scheduled sex offender counseling meeting at the San Diego parole office. Pursuant to department policy, Turner's parole officer immediately took Turner into custody. The parole officer stated that until Turner violated the curfew condition, Turner was making a positive adjustment to parole supervision, including attending regular counseling meetings and obtaining full-time employment.\\nBased on the curfew violation, Turner's parole was revoked and he was returned to custody for six months. On January 24, 2002, while Turner was still in custody, the district attorney filed a petition seeking to again commit Turner under the SVPA for a two-year period. The petition alleged Turner had been convicted of a sexually violent offense against two or more victims (the 1984 and 1985 offenses), and that Turner has a diagnosed mental disorder that makes him a danger to the health and safety of others in that it was likely he would engage in sexually violent criminal behavior. Turner moved to dismiss the petition, arguing the prior jury finding that he was not a sexually violent predator was binding in this subsequent proceeding, particularly because the supporting psychological reports contained no new information other than Turner's curfew violation in September 2001.\\nAt the February 2002 probable cause hearing, the district attorney submitted evidence of Turner's 1984 and 1985 qualifying convictions, and reports authored by the two forensic psychologists who had supported the 1998 SVPA petition, Dr. Zinik and Dr. Malinek. These psychologists stated that Turner has a current mental disorder of paraphilia and sexual sadism, and opined that Turner is likely to engage in future sexually violent predatory behavior. Although both Dr. Zinik and Dr. Malinek prepared these reports in connection with the February 2002 probable cause hearing, and referenced events that took place after Turner was placed on parole (i.e., the curfew violation), they reached these conclusions primarily based on facts that had been before the jury in the prior trial when the jury found Turner was not a sexually violent predator.\\nIn response, Turner's counsel maintained the prosecution's evidence was insufficient to show that Turner was likely to engage in future sexually violent behavior, arguing the prosecution could not relitigate this issue when eight months earlier a jury had found he was not a sexually violent predator. In support, Turner sought to introduce the reports of the two psychologists who had testified on his behalf at his successful June 2001 SVPA jury trial. Both of these psychologists acknowledged that Turner had a diagnosable mental disorder, but opined it was not likely Turner would engage in sexually violent predatory behavior upon release. The psychologists based these conclusions on various facts, including that Turner had not been charged with a criminal violation since the mid-1980's, the lack of evidence that he had engaged in inappropriate behaviors in the past several years, Turner's strong identification with an organized religion, the absence of evidence of current substance abuse, and the evidence showing Turner was engaged in positive personal relationships. Both psychologists recognized that Turner had refused to participate in treatment at Atascadero but did not believe this refusal reflected that he would commit sexually violent conduct upon release.\\nThe court sustained the district attorney's evidentiary objections to these reports on the basis that the reports were inadmissible hearsay and irrelevant to the issues at the probable cause hearing. The court further rejected Turner's legal arguments, and found sufficient evidence of probable cause despite the earlier jury finding. The court stated that Dr. Malinek identified Turner's September 2001 parole violation as evidence supporting the risk that Turner would reoffend, and noted that Dr. Zinik spoke with Turner's treating psychologist at Atascadero and reviewed the parole violation sheet before he reached his conclusions. Based on these facts, the trial court concluded that \\\"both doctors did rely in coming to their conclusions on behavior that occurred after the jury's finding. And based on that, I think that they have\\u2014they have gone beyond the information that was presented to the [prior] jury. . . .\\\" The court thus found probable cause and ordered that Turner remain in custody until the conclusion of the SVPA trial.\\nTurner petitioned for a writ of mandate in this court. We initially denied the petition, finding that Turner had an adequate remedy through an expedited appeal if he did not prevail at trial. The California Supreme Court, however, granted Turner's petition challenging this denial, and transferred the matter with directions to vacate our order and to issue an order to show cause in this court. We have done so, and now reach the merits of Turner's contentions.\\nDiscussion\\nI. Overview of SVPA\\nThe SVPA provides for the involuntary civil commitment of certain offenders, following the completion of their prison terms, who are found to be sexually violent predators because they have previously been convicted of sexually violent crimes and currently suffer diagnosed mental disorders that make them dangerous because they are likely to engage in sexually violent predatory criminal behavior. (\\u00a7 6600 et seq.; People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 902 [119 Cal.Rptr.2d 1, 44 P.3d 949] (Ghilotti).)\\nAn SVPA commitment requires a determination that an individual is a sexually violent predator or SVP. (Ghilotti, supra, 27 Cal.4th at p. 903.) \\\"An SVP is 'a person who has been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.' (\\u00a7 6600, subd. (a) (1).)\\\" {Ibid.)\\nThe process for determining whether a convicted sex offender is an SVP begins when an inmate is scheduled to be released from custody after a determinate sentence or a parole revocation. (Ghilotti, supra, 27 Cal.4th at p. 903.) The Department of Corrections is required to screen inmates who are \\\"serving a determinate prison sentence or whose parole has been revoked\\\" at least six months before their scheduled date of release from prison. (\\u00a7 6601, subd. (a).) If officials find the inmate is likely to be an SVP, he is referred for a \\\"full evaluation\\\" as to whether he meets the definition of an SVP. (\\u00a7 6601, subd. (b); Ghilotti, supra, 27 Cal.4th at p. 903.) \\\"'[T]he person [is then] evaluated by two practicing psychiatrists or psychologists. . If both evaluators concur that the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody, the Director shall forward a request for a [commitment] petition . . . to . . .' the county where the offender was convicted of the crime for which he is currently imprisoned.\\\" (Ghilotti, supra, 27 Cal.4th at p. 903.)\\nIf the county's legal counsel agrees with the recommendation, a petition for commitment is filed in the superior court. (\\u00a7 6601, subd. (i).) The superior court then holds a hearing to determine whether there is \\\"probable cause\\\" to believe the person named in the petition comes within the definition of an SVP, including whether the person is likely to engage in sexually violent predatory criminal behavior upon release. (\\u00a7 6602.) If no probable cause is found, the trial court must dismiss the petition. However, if the court finds probable cause, the court orders a trial to determine whether the person is an SVP under section 6600.\\nAt the jury trial, \\\"[t]he trier of fact is charged with determining whether the requirements for classification as an SVP have been established 'beyond a reasonable doubt.' (\\u00a7 6604.) Any jury verdict on the issue must be 'unanimous.' (\\u00a7 6603, subd. (d).) . . . [Wjhere the requisite SVP findings are made, 'the person shall be committed for two years to the custody of the . . . Department... for appropriate treatment and confinement in a secure facility. .[(\\u00a7 6604.)]' [Citation.]\\\" (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1147 [81 Cal.Rptr.2d 492, 969 P.2d 584].) After two years, the district attorney may file a recommitment petition, and the same \\\"rights, requirements and procedures\\\" generally apply as govern original commitment proceedings. (\\u00a7 6604.1, subd. (b); see Cooley v. Superior Court (2001) 89 Cal.App.4th 785, 787-792 [107 Cal.Rptr.2d 724].) However, if \\\"the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent predator, the court shall direct that the person be released at the conclusion of the term for which he or she was initially sentenced, or that the person be unconditionally released at the end of parole, whichever is applicable.\\\" (\\u00a7 6604.)\\nIn the past several years, California courts have rejected numerous constitutional challenges to the SVPA and have resolved various statutory interpretation questions arising from the statutory scheme. (See Cooley v. Superior Court (2002) 29 Cal.4th 228 [127 Cal.Rptr.2d 177, 57 P.3d 654] (Cooley); People v. Hurtado (2002) 28 Cal.4th 1179 [124 Cal.Rptr.2d 186, 52 P.3d 116]; Ghilotti, supra, 27 Cal.4th 888; People v. Otto (2001) 26 Cal.4th 200 [109 Cal.Rptr.2d 327, 26 P.3d 1061]; Hubbart v. Superior Court, supra, 19 Cal.4th 1138; Turner I, supra, 78 Cal.App.4th 1131; People v. Hedge (1999) 72 Cal.App.4th 1466 [86 Cal.Rptr.2d 52].)\\nII. Effect of Prior Finding That SVPA Defendant Was Not a Sexually Violent Predator\\nThe issues here are of first impression. If a jury has found an individual is not an SVP, may a subsequent petition be filed against that person after he has been released and then returned to custody for a parole violation? If so, what is the effect of the jury's former finding in the subsequent proceeding?\\nTurner contends the district attorney should be forever barred from filing a second commitment petition, or at least prohibited from filing a new petition until the individual has been convicted and sentenced on a new crime. The district attorney counters that the prior jury finding should have no effect once the person is released and returned to custody on a parole violation. We conclude neither of these approaches is supported by applicable legal principles.\\nFirst, Turner's argument that the SVPA does not permit separate petitions for a prison commitment and parole revocation arising from the same sentence is not supported by the SVPA's statutory language. The process of committing an individual under the SVPA is triggered by section 6601, which provides, \\\"Whenever the Director of Corrections determines that an individual who is in custody under the jurisdiction of the Department of Corrections, and who is either serving a determinate prison sentence or whose parole has been revoked, may be a sexually violent predator, the director shall, at least six months prior to that individual's scheduled date for release from prison, refer the person for evaluation in accordance with this section.\\\" (Italics added.) The use of the word \\\"whenever\\\" and the express reference to a parole revocation make clear the Legislature intended that an SVPA petition may be filed against an individual who has been returned to custody on a parole revocation and who is alleged to be an SVP. The relevant statutes do not contain language creating an express or implied exception to this permitted filing merely because an earlier petition had been filed when the individual was released from the initial sentence.\\nTurner contends the fact that an SVP must be \\\"unconditionally released\\\" after an initial favorable jury verdict shows the Legislature intended to prohibit a second petition filed after a parole revocation. (\\u00a7 6604.) We disagree. By identifying an impending release from custody as the statutory trigger for an SVPA evaluation, the Legislature was seeking to ensure that every sexual offender who meets the statutory requirements would be evaluated to prevent likely harm to innocent victims. (See \\u00a7 6601, subd. (a) (1).) In an uncodified statement, the Legislature stated it \\\"finds and declares that it is in the interest of society to identify [SVP's] prior to the expiration of their terms of imprisonment. It is the intent of the Legislature that once identified, these individuals, if found to be likely to commit acts of sexually violent criminal behavior beyond a reasonable doubt, be confined and treated until such time that it can be determined that they no longer present a threat to society.\\\" (Stats. 1995, ch. 763, \\u00a7 1, p. 5921, italics added.) This intention would not be effectuated if the SVPA identification and petition process did not apply to an incarcerated individual merely because a previous petition had been litigated pertaining to an earlier imprisonment. Turner was \\\"unconditionally released\\\" (\\u00a7 6604), but was then returned to custody because he violated his parole. At that point, the SVPA process was properly set in motion.\\nWe find unavailing Turner's alternate argument that, even assuming the statutes do not prohibit a second petition, his due process rights require that we interpret the SVPA to mean a second petition may never be filed after a successful SVPA jury verdict with respect to the same crime. Turner maintains that after a jury finds an individual is not an SVP, due process does not permit continued involuntary commitment because the state's interest in protecting the public no longer prevails over the individual's interest in being free from compulsory confinement. We agree that under those limited circumstances an immediate second SVPA petition would be improper. But this conclusion does not apply to the situation where an individual has been reincarcerated for a parole violation and the evidence shows that upon that release, the individual would commit sexually violent predatory offenses against innocent and unsuspecting members of our community. In this situation, the state does not violate an individual's due process rights by involuntarily committing the individual if that individual has a mental impairment that makes him dangerous to others. (See Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1151.) Although an individual against whom an SVP petition is filed has a strong liberty interest, this interest is outweighed by the government's significant interest in protecting the public from mentally ill persons who are likely to prey upon them. (Ibid.; People v. Superior Court (Howard) (1999) 70 Cal.App.4th 136, 155 [82 Cal.Rptr.2d 481].) This interest is not diminished because of the existence of earlier proceedings that pertained to the individual's mental state and dangerousness at a different time.\\nDespite these conclusions, we do not agree with the district attorney's position that a jury finding should have no effect on a later proceeding based on a parole revocation. Although the double jeopardy prohibition is inapplicable to the SVPA because the statutory scheme is civil in nature (see Kansas v. Hendricks (1997) 521 U.S. 346, 369 [117 S.Ct. 2072, 2085-2086, 138 L.Ed.2d 501]; Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1172, fn. 32), courts have recognized that res judicata and collateral estoppel principles may apply in civil commitment proceedings. (See People v. Francis (2002) 98 Cal.App.4th 873, 877 [120 Cal.Rptr.2d 90].) If these principles did not apply, the integrity of the first proceeding could be undermined and there would be serious questions about the fundamental fairness of a scheme that would permit the government to file successive petitions against an individual in the same forum and on the same facts in a proceeding that could potentially result in a complete loss of liberty for that individual.\\nBut a conclusion that collateral estoppel principles may apply in an SVPA commitment proceeding does not mean that a second petition is necessarily barred. The collateral estoppel doctrine precludes a party from relitigating issues decided in a prior proceeding only to the extent certain threshold requirements are satisfied. (Gikas v. Zolin (1993) 6 Cal.4th 841, 849 [25 Cal.Rptr.2d 500, 863 P.2d 745].) \\\" 'First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.' [Citation].\\\" (Ibid.)\\nUnder these principles, the critical question here is the extent to which the issue litigated and decided at the June 2001 trial\\u2014the likelihood of Turner committing violent sexual acts upon his release\\u2014was the same as the issue presented at the February 2002 probable cause proceeding. Under the SVPA, a determination of SVP status depends on whether the person \\\" 'currently' \\\" suffers from a diagnosed mental disorder which prevents him from controlling sexually violent behavior and makes him dangerous and likely to reoffend. (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1162; see People v. Carmony (2002) 99 Cal.App.4th 317, 325 [120 Cal.Rptr.2d 896]; People v. Hedge, supra, 72 Cal.App.4th at p. 1476.) Thus, the issue at Turner's prior trial was whether he was likely to commit sexually violent predatory conduct upon his release in June 2001. The June 2001 court order releasing Turner from civil commitment expressly states the jury found Turner would not be a danger to others and that it was not likely he would engage in sexually violent predatory behavior.\\nThis issue was different from the issue presented at the February 2002 probable cause hearing\\u2014whether Turner would be likely to commit sexually violent predatory acts when he is released on the parole revocation sentence in February 2002. Given the SVPA's requirement that the individual's current dangerousness be established, the issue of Turner's mental health and his resulting danger to others in February 2002 is not identical to the issue litigated in the prior proceeding and was not decided at the earlier trial. (See People v. Hedge, supra, 72 Cal.App.4th at pp. 1476, 1477.) The likelihood of a person committing criminal acts because of a mental disorder is not a fixed condition because an individual's mental health and potential dangerousness can, and frequently does, change. (People v. Horn (1984) 158 Cal.App.3d 1014, 1033 [205 Cal.Rptr. 119].) Recognizing this, courts generally hold that an adjudication of status or mental health issues is not conclusive as to the same status on a later date. (See People v. Carmony, supra, 99 Cal.App.4th at p. 325; People v. Horn, supra, 158 Cal.App.3d at p. 1033.)\\nThus, under collateral estoppel principles, a prior jury finding that an individual was not an SVP does not absolutely bar a later petition seeking to show that the person is an SVP at a later time (after a new determinate prison sentence or parole revocation custody). This does not mean, however, that the prior factual finding that Turner was not likely to reoffend upon his prior release has no effect in the subsequent proceeding. It does in fact have strong probative value as to the precise issue to be decided in the current proceeding: whether Turner was dangerous and likely to commit sexually violent predatory acts upon his parole revocation release in February 2002, particularly because the two petitions were filed so close in time. In determining whether Turner is likely to commit sexually violent predatory acts upon a scheduled release in February 2002, it is certainly relevant to know that a jury found it was not likely that he would commit sexually violent predatory acts when he was released eight months earlier, in June 2001.\\nIt is that specific issue\\u2014whether Turner was likely to reoffend in June 2001\\u2014that the district attorney is barred from relitigating because all of the elements of collateral estoppel are established. The parties were permitted to present all relevant evidence in the prior proceeding. The jury's finding was necessary to its decision and the finding was on the merits. Because there was no further court action to determine the rights of the parties, the jury's determination became final. Further, there was an identity of the parties because the San Diego District Attorney and Turner were'parties in the current and the June 2001 proceeding. On this record, the People are barred from relitigating the specific finding reached by the jury in the prior proceeding.\\nPeople v. Carmony, supra, 99 Cal.App.4th 317, is consistent with this conclusion. In that case, the court held that a 1982 finding that an individual was not a \\\"mentally disordered sex offender\\\" (MDSO) did not have \\\"conclusive effect\\\" in an SVPA proceeding filed 20 years later. (Id. at pp. 322-326.) The court reasoned that although the MDSO finding was relevant and admissible on the issue of the defendant's mental state in the later proceedings, it would be improper to hold that the People could not relitigate the issue of the individual's current mental state, in light of the \\\"changeable nature of a person's mental health and dangerousness . . . (Id. at p. 325.) Although in reaching these conclusions the court stated it believed that in enacting the SVPA the Legislature had intended to implicitly abrogate the collateral estoppel doctrine, it made this remark in the context of its determination that the MDSO finding was not identical to the SVPA issue that was raised 20 years later. (Id. at pp. 325-326.) Thus, read in context, the court's statement refers to its determination that the elements of collateral estoppel did not apply in the particular case, rather than as a broad expression regarding the applicability of collateral estoppel principles in SVPA commitment proceedings.\\nAccordingly, we hold that whereas a prior jury determination that an individual is not an SVP does not necessarily bar a subsequent petition after a release and parole revocation, the jury's prior determination is relevant and therefore admissible in the later SVPA proceeding. Moreover, under collateral estoppel principles, the district attorney may not relitigate the prior jury finding with respect to the same individual. Accordingly, to establish probable cause in the subsequent proceeding, the district attorney must present evidence of a change of circumstances, i.e., that despite the fact the individual did not possess the requisite dangerousness in the earlier proceeding, the circumstances have materially changed so that he now possesses that characteristic. In requiring the district attorney to present evidence of changed circumstances, we are not suggesting that historical information is no longer relevant. It clearly is. A mental health professional cannot be expected to render opinions as to current status without fully evaluating background information. However, where an individual has been found not to be an SVP and a petition is properly filed after that finding, the professional cannot rely solely on historical information. The professional must explain what has occurred in the interim to justify the conclusion the individual currently qualifies as an SVP.\\nIII. Sufficiency of Evidence of Changed Circumstances on \\\"Likely to Engage \\\" Issue\\nWe now turn to the question whether the trial court properly found the People established probable cause that Turner was likely to engage in sexually violent conduct. We evaluate the evidence in light of our holding that the prosecution was required to show circumstances had changed after the prior jury determination that Turner was not an SVP.\\nOur Supreme Court recently delineated the proper scope and nature of the probable cause determination under the SVPA. (Cooley, supra, 29 Cal.4th 228.) The Cooley court held that at a probable cause hearing the superior court must \\\"determine whether a reasonable person could entertain a strong suspicion that the petitioner has satisfied all the elements required for a civil commitment as an SVP, specifically, whether (1) the offender has been convicted of a qualifying sexually violent offense against at least two victims; (2) the offender has a diagnosable mental disorder; (3) the disorder makes it likely he or she will engage in sexually violent criminal conduct if released; and (4) this sexually violent criminal conduct will be predatory in nature.\\\" (Id., at p. 236, original italics.) The court additionally concluded the statutory phrase \\\"likely to engage in sexually violent predatory criminal behavior upon . . . release\\\" means \\\"a serious and well-founded risK the alleged SVP will commit the prohibited acts. (Ibid., original italics.)\\nThe Cooley court stated that, in determining whether the prosecution has met its burden of proof on these issues, a trial court may \\\"weigh the evidence, [and] resolve conflicts . . . ,\\\" but the trial court may \\\"not find an absence of probable cause simply because it finds the defense witnesses slightly more persuasive than the prosecution witnesses . [I]f the prosecution presents evidence a reasonable person could accept over that presented by the defense, probable cause should be found. The superior court may not substitute its own personal belief as to the ultimate determination to be made at trial for that of a reasonable person evaluating the evidence.\\\" (Cooley, supra, 29 Cal.4th at pp. 257-258.) Where, as here, the superior court at the probable cause hearing has not resolved factual disputes or passed upon the credibility of witnesses, an appellate court must conduct an independent review of the evidence to determine whether the evidence supports the superior court's probable cause findings. (Id. at p. 257.)\\nApplying these principles, we conclude the prosecution did not meet its burden to show that, in light of the prior jury verdict, there is a serious and well-founded risk that Turner will engage in sexually violent criminal conduct upon his release. To prove this element, the district attorney relied exclusively on the reports of two psychologists, Dr. Zinik and Dr. Malinek. But Dr. Malinek did not even acknowledge the prior jury finding, and Dr. Zinik merely noted the fact of the prior finding, without discussing the consequences of the jury verdict. At the very least, the prosecution's supporting reports must contain information showing the evaluating professionals understood and accepted, for purposes of the current diagnosis, the prior jury finding as true, and then explain why despite that prior finding, the facts are sufficiently different so that the individual is now a dangerous person who is likely to reoffend within the meaning of the SVPA.\\nMoreover, even if Dr. Zinik and Dr. Malinek had properly acknowledged the prior jury finding, neither psychologist relied on post-June 2001 facts to support their current conclusions. Instead, the reports make clear that these psychologists relied on evidence that was known and presented to the jury in the earlier proceeding. The only post-June 2001 evidence identified by these doctors was Turner's curfew violation. However, the psychologists did not state in their reports whether or how this information affected the determination that Turner is currently dangerous and likely to reoffend. Dr. Zinik merely quoted from the parole officer's report, but he did not state or suggest that he relied on this violation in reaching his conclusion that Turner was likely to commit sexually violent offenses upon his release from prison. Although Dr. Malinek did suggest that Turner's failure to follow his parole officer's directions was a factor in showing that Turner continued to be at high risk for committing predatory sexual offenses, read in context of the entire report this suggested link between the curfew violation and violent sexual conduct lacked sufficient substance to support a reasonable conclusion that the circumstances have sufficiently changed so that Turner was now likely to reoffend upon his release.\\nTo demonstrate changed circumstances, the People now rely on the fact that Turner refused to be interviewed by Dr. Zinik or Dr. Malinek. However, neither Dr. Zinik nor Dr. Malinek identified this fact as a basis for reaching his conclusions. In light of this lack of reliance by the mental health professionals, the district attorney's suggested inference is unsupported. The district attorney additionally contends that Turner's failure to explain his activities during his curfew break \\\"permits the conclusion\\\" that Turner \\\"was drinking, or using drugs, or more than likely preying on strangers\\\" and that a reasonable conclusion could be made that Turner \\\"violated his curfew condition so that he could prey upon the scores of people present at the [music festival] in an attempt to satisfy his 'predatory' desires.\\\" However, without any supporting evidence or reliance on such facts by the experts, these inferences are speculative at best. We also find unavailing the district attorney's argument that it satisfied the changed circumstances element because both doctors identified the curfew violation in their reports. The mere fact that the district attorney's two experts recognized that Turner violated his curfew is insufficient to show that these psychologists relied on this violation to reach their conclusions regarding the likelihood that Turner would commit sexually violent predatory offenses upon his release.\\nIV. Appropriate Disposition\\nThe final issue to be considered is the proper disposition of the case after we have determined that the trial court erred in concluding the SVPA petition was supported by probable cause.\\nSection 6602 provides that if the superior court determines that there is not probable cause, the court shall \\\"dismiss the petition and any person subject to parole shall report to parole.\\\" (\\u00a7 6602.) This statutory mandate requires that upon finding insufficient evidence to support the SVPA petition and thus reversing the matter, we must order the court to vacate its probable cause finding and dismiss the petition.\\nIn supplemental briefing, the district attorney argues that we should remand for a new probable cause hearing similar to the remand procedure described in Cooley. (Cooley, supra, 29 Cal.4th at pp. 259-261.) Cooley, however, is factually and legally distinguishable.\\nIn Cooley, the superior court dismissed the SVPA petition after finding the district attorney failed to show it was \\\"more likely than not\\\" that the alleged SVP would reoffend. (Cooley, supra, 29 Cal.4th at p. 259, italics omitted.) After the Court of Appeal vacated the superior court's order, the SVPA defendant petitioned for review to the Supreme Court. The Supreme Court held the trial court erred, but instead of ordering the trial court to find probable cause and set the matter for an SVPA trial, the court remanded the matter for a new probable cause hearing. (Id. at pp. 259-261.) The Cooley court explained that although appellate courts should ordinarily apply the standard of review used in appellate review of criminal preliminary hearings, it declined to review the proceedings under the traditional standards because \\\"[t]he entire superior court proceeding was infected with error because the expert evidence presented by both the district attorney and [defendant] failed to consider whether potential sexual violence would be 'predatory' in nature and all the experts applied the wrong definition of 'likely.' \\\" (Id. at pp. 236, 259-261.) The court reasoned \\\"[i]t would be improper . . . under these circumstances, to uphold any factual findings made by the superior court, or to independently review the record to make our own factual findings.\\\" (Id. at p. 236.) The court thus instructed the Court of Appeal to remand the matter to the superior court to conduct a new probable cause hearing. (Id. at pp. 236, 261.)\\nIn this case, the probable cause hearing was not similarly \\\"infected\\\" with legal error. Although this case presented issues of first impression regarding the effect of a prior jury finding that the defendant was not an SVP, the trial court commendably recognized that the district attorney was required to present evidence of changed circumstances and the court essentially articulated the same legal standard that we have determined should be applied in this case. Thus, unlike Cooley, the trial court identified the correct legal standard, but erred in applying that legal standard to the facts of the case. In this circumstance, there is no justification for remanding for a second hearing. In Cooley, the Supreme Court did not conclude\\u2014as we do here\\u2014 that there was insufficient evidence to support the probable cause finding on the SVPA petition. Instead, it determined that because of legal errors in the proceedings below, it was unable to reach the question of the sufficiency of the evidence to support the probable cause findings. It was under those circumstances that the Cooley court held it was appropriate to remand for a new probable cause hearing. Those circumstances are not present here.\\nWe reject the district attorney's alternate argument that it is entitled to a second probable cause hearing because the trial court \\\"failed to consider\\\" whether the potential sexual violence would be \\\"predatory\\\" in nature and failed to apply the \\\"strong suspicion\\\" standard for probable cause. Because these asserted errors caused no prejudice to the district attorney's position below, they cannot serve as the basis for ordering a new hearing. Put otherwise, even assuming the court erred in failing to consider whether Turner's potential sexually violent conduct included a predatory component and erred in failing to apply the \\\"strong suspicion\\\" standard, these errors favored the district attorney. Because we have determined the probable cause finding was unsupported on an independent basis (the absence of changed circumstances to show Turner was likely to commit a sexually violent offense), the additional errors asserted by the district attorney are not the basis for a second probable cause hearing in this case.\\nDisposition\\nLet a writ issue directing the superior court to vacate its order finding probable cause for the SVPA petition filed on January 24, 2002, and enter a new order dismissing the petition.\\nHuffman, Acting P. J., and McDonald, J., concurred.\\nThe petition of real party in interest for review by the Supreme Court was denied April 16, 2003. Baxter, J., was of the opinion that the petition should be granted.\\nAll further statutory references are to the Welfare and Institutions Code unless otherwise specified.\\nIn Turner I, we held the superior court properly permitted a second trial after the first jury could not reach a verdict. (Turner I, supra, 78 Cal.App.4th at p. 1143.) Turner I contains a detailed description of the evidence presented at Turner's second trial, which we shall not repeat in this opinion.\\nTumer contends the issues were identical in this case because there was no evidence that his mental disorder \\\"involved a fluctuating mental state . . . .\\\" However, although the nature of Turner's mental disorder may not change, the critical issue in an SVPA proceeding is whether the individual's current mental state would result in his committing violent sexual predatory offenses upon release. That issue can certainly change depending on numerous factors, including the current outward symptoms of the mental disorder, the various choices the person has made in adjusting to a particular living situation, and the individual's reaction to changes in his external environment.\\nPeople v. Hedge, supra, 72 Cal.App.4th 1466, another decision relied upon by the district attorney, is also consistent with our conclusions here. In that case, this court held the trial court properly retained jurisdiction to proceed on a second SVPA petition although the challenge to the first petition was pending for review before the California Supreme Court. Because there was no earlier factual finding that the individual was not an SVP, we did not specifically consider the issue presented here of the effect of such a finding on a later proceeding.\\nCooley was filed shortly after the oral argument in this case. We provided the parties the opportunity to file supplemental briefs regarding the applicability of the Cooley decision to certain issues on this appeal.\\nIndeed, the public defender has informed us that Dr. Malinek has changed his opinion about the likelihood of Turner reoffending after he conducted a personal interview with Turner while this issue was pending on appeal, and the district attorney has not disputed this representation.\"}"
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+"{\"id\": \"3500036\", \"name\": \"ISRAEL ELNEKAVE et al., Plaintiffs and Appellants, v. VIA DOLCE HOMEOWNERS ASSOCIATION, Defendant and Appellant\", \"name_abbreviation\": \"Elnekave v. Via Dolce Homeowners Ass'n\", \"decision_date\": \"2006-09-12\", \"docket_number\": \"No. B184526\", \"first_page\": \"1193\", \"last_page\": \"1201\", \"citations\": \"142 Cal. App. 4th 1193\", \"volume\": \"142\", \"reporter\": \"California Appellate Reports, Fourth Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T00:56:22.237683+00:00\", \"provenance\": \"CAP\", \"judges\": \"Cooper, P. J., and Boland, J., concurred.\", \"parties\": \"ISRAEL ELNEKAVE et al., Plaintiffs and Appellants, v. VIA DOLCE HOMEOWNERS ASSOCIATION, Defendant and Appellant.\", \"head_matter\": \"[No. B184526.\\nSecond Dist., Div. Eight.\\nSept. 12, 2006.]\\nISRAEL ELNEKAVE et al., Plaintiffs and Appellants, v. VIA DOLCE HOMEOWNERS ASSOCIATION, Defendant and Appellant.\\nCounsel\\nPariser & Pariser and Wayne D. Pariser for Plaintiffs and Appellants.\\nProcter, McCarthy & Slaughter, Barry J. Reagan, Chandra A. Beaton and Gabriele Mezger-Lashly for Defendant and Appellant.\", \"word_count\": \"2733\", \"char_count\": \"16724\", \"text\": \"Opinion\\nRUBIN, J.\\nDefendant Via Dolce Homeowners Association appeals from the judgment entered to enforce a settlement agreement with plaintiffs Israel and Sara Elnekave (Code Civ. Proc., \\u00a7 664.6) in this action for water and mold damage to the Elnekaves' condominium. Because only the association's insurer and a third party representative agreed to the settlement, and not a member of its corporate board or a corporate officer, we reverse. The Elnekaves have cross-appealed, asking that if we reverse the judgment, we also reverse the concomitant order dismissing their complaint. We also reverse the dismissal order, and the Elnekaves' action is restored.\\nFACTS AND PROCEDURAL HISTORY\\nIsrael and Sara Elnekave owned a unit in a Marina Del Rey condominium complex. Their unit suffered mold damage from a water leak, forcing them to pay for extensive repairs. The Elnekaves sued the Lees, their neighbors who owned an adjoining unit, and Via Dolce Homeowners Association (HOA), the homeowners association for the condominium complex, claiming that the Lees and the HOA were responsible for the damage.\\nAt a September 8, 2004, mandatory settlement conference, it appeared that an oral settlement was reached and put on the record before the court. Attorneys for each of the parties were present, but Israel Elnekave was the only party to attend, purporting to consent for himself and on behalf of his wife. Settling on behalf of the HOA was a representative from its insurer\\u2014 State Farm \\u2014 and Cheryl Stites, an employee of a property management company hired by the HOA to manage the condominium complex. Stites told the court she had authority to settle for the HOA. The Lees were also insured by State Farm, and the State Farm representative appearing for the HOA said he was able to agree to the settlement on their behalf.\\nThe agreement, as described by the court, called for State Farm to pay the Elnekaves $65,000 on behalf of the HOA and $60,000 on behalf of the Lees. The action would be dismissed and mutual releases would be exchanged. The Elnekaves believed the HOA had been harassing them about the repair work, threatening to inspect the repairs and perhaps find violations of building codes or the condominium's covenants, codes and restrictions (CC&R's). According to the court, the settlement meant \\\"that's the end of the lawsuits, that's the end of demanding damages or monetary fines and so forth in regard to the mold problem and the construction that was done to repair the apartment because of the mold damage. It has nothing to do with any other lawsuits not dealing with the apartment and the mold problem. It has nothing to do with anything in future construction or change of the apartment or anything along that line. It encapsulates this particular issue with the mold, the displacement of the plaintiff and the repair to his condominium . . . .\\\" Israel Elnekave told the court, \\\"I just want to reiterate that I don't want to be harassed anymore in any way, shape or form with this work. Everything is over. I don't want to be harassed anymore.\\\" The court replied, \\\"That's part of the settlement agreement, sir.\\\"\\nLater attempts to reduce the oral agreement to writing foundered when counsel for the HOA and the Elnekaves could not agree on the scope of the release regarding enforcement of the CC&R's for any problems with the Elnekaves' repair work. Even though the draft prepared by the HOA appeared to release any HOA enforcement actions by the HOA for work done up to the date of the settlement conference, the Elnekaves wanted the agreement to make clear that the HOA would not pursue any CC&R enforcement actions on behalf of owners of other units in the complex. The Elnekaves brought a motion to enforce the settlement pursuant to Code of Civil Procedure section 664.6. The HOA opposed the motion on two main grounds: First, it never intended to waive its right to enforcement actions based on a steam shower the Elnekaves added in place of their old shower; and second, Stites was merely an employee of an outside property management firm, and, despite her self-asserted authority to settle, could not agree to settle in place of a member of the HOA's board of directors. In the Elnekaves' reply brief, they argued that Stites had the actual authority to settle. Even if she did not, State Farm's consent to the settlement was sufficient to bind the HOA, they contended. The trial court denied the motion because the settlement was never intended to apply to the steam shower, but, out of fairness to the Lees, who were ready and willing to settle the matter, ordered the HOA and the Elnekaves to work out their differences. An order to show cause regarding dismissal of the action as part of an eventual settlement was continued to February 3, 2005.\\nThe order to show cause regarding dismissal was eventually heard on April 1, 2005. Present on behalf of the HOA this time was a member of its board of directors, along with Stites. At the start of the hearing, the court said it had just held an in-chambers conference with the parties where it issued a tentative ruling to adopt the September 2004 settlement. Counsel for the HOA argued that it had been trying for some time to determine whether the repair work performed by the Elnekaves, including the steam shower, had been performed by licensed contractors and met local building code standards, as required by the CC&R's. The HOA lawyer said the Elnekaves' unit had flooded twice, once as recently as January 2005. One leak was caused by unapproved construction work, the lawyer said. According to the HOA's lawyer, the HOA and Stites had been unaware of all the work done by the Elnekaves and never intended to waive enforcement of the CC&R's as to any and all work, just as to the mold remediation repairs. The Elnekaves' lawyer told the court that the purpose of the settlement was to put an end to the entire dispute, including the HOA's threats of enforcement actions, and said that the HOA had twice inspected the Elnekaves' unit.\\nThe trial court resolved the dispute by finding that a \\\"good faith settlement\\\" was reached on September 8, 2004, with the HOA waiving enforcement actions for work done in the Elnekaves' unit up to that date, excluding the steam shower, and matters that the Elnekaves intentionally misrepresented or failed to disclose to the HOA. The court entered an order to that effect, finding that the settlement was in good faith pursuant to section 877.6. It also ordered that the case be dismissed.\\nOn appeal, the HOA contends: (1) the trial court purported to act under section 877.6, which provides for findings that a settlement was in good faith for purposes of settlements with one of several joint tortfeasors or coobligors. No such motion was made, and that statute was inapplicable here, leading the HOA to conclude that the trial court lacked jurisdiction to enforce the settlement; (2) because Sara Elnekave was not present, and because Stites was not a proper representative of the HOA corporate entity, not all parties were present when the settlement was reached, making it unenforceable under section 664.6; and (3) the parties did not agree as to all material terms.\\nSTANDARD OF REVIEW\\nIn a statutory settlement proceeding, we review the trial court's determination of factual matters for substantial evidence. To the extent we engage in the proper interpretation of section 664.6, however, we exercise our independent review. (Gauss v. GAF Corp. (2002) 103 Cal.App.4th 1110, 1116 [127 Cal.Rptr.2d 370] (Gauss).)\\nDISCUSSION\\nSection 664.6 provides, in relevant part: \\\"If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.\\\" The term \\\"parties to the litigation\\\" has been strictly construed to mean the parties themselves, not their lawyers or other agents. (See Gauss, supra, 103 Cal.App.4th at pp. 1117-1119, and cases cited therein.) The reason for this rule was stated in Levy v. Superior Court (1995) 10 Cal.4th 578 [41 Cal.Rptr.2d 878, 896 P.2d 171] (Levy): \\\"The litigants' direct participation tends to ensure that the settlement is the result of their mature reflection and deliberate assent. This protects the parties against hasty and improvident settlement agreements by impressing upon them the seriousness and finality of the decision to settle, and minimizes the possibility of conflicting interpretations of the settlement. . It also protects parties from impairment of their substantial rights without their knowledge and consent.\\\" (Id. at p. 585, fn. and citations omitted.)\\nIn Gauss, supra, 103 Cal.App,4th 1110, the defendant and other corporations expressly authorized another corporation (the agency) to handle the defense of, and settle, claims by asbestosis plaintiffs. That agency settled an action against GAF, but GAF refused to pay when a dispute arose over its settlement obligations. The trial court eventually granted the plaintiff's section 664.6 motion, but GAF appealed, contending it alone had the authority to settle for purposes of such a motion. The appellate court agreed, holding that despite GAF's express authorization of the agency's right to settle, section 664.6 required an agreement by a corporate officer. Citing to Levy, supra, 10 Cal.4th at page 583, the Gauss court noted that the term \\\"party\\\" in section 664.6 means the specific person or entity by or against whom an action was brought. (Gauss, supra, at pp. 1118-1119.)\\nRelying on Gauss, the HOA contends in its opening brief, as it did below, that Stites was not its proper representative under section 664.6 because she was no more than an employee of a property management company hired by the HOA. The Elnekaves' brief does not address this issue at all, and we therefore deem it waived. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 [46 Cal.Rptr.2d 119] (Landry).) Instead, the Elnekaves rely on the alternative ground they raised below \\u2014 that the representative of HOA's insurer sufficed to bind the HOA under section 664.6. The only authority cited for this proposition is Fiege v. Cooke (2004) 125 Cal.App.4th 1350 [23 Cal.Rptr.3d 496] (Fiege).\\nThe plaintiff, Fiege, was injured in an automobile collision and sued three persons for his injuries. Fiege accepted settlement offers from the defendants' insurers, but later tried to avoid the settlement. The defendants sought and were granted a motion to enforce the settlement under section 664.6. Fiege contended on appeal that the defendants themselves had to be present and consent to make the settlement enforceable under section 664.6, and that an agreement by their insurers was not sufficient. The appellate court disagreed. Because the defendants' insurance policies expressly gave the insurers the right to settle without the defendants' consent, and because the settlement within policy limits did not prejudice the defendants' substantial rights, the court held that section 664.6 had been satisfied. (Fiege, supra, 125 Cal.App.4th at pp. 1354-1355.)\\nAs the HOA points out, its liability policy is not in the record and there is no evidence that it gave State Farm the right to settle without the HOA's consent. Also, unlike Fiege, the settlement here did prejudice the HOA's rights separate from the payment by its insurer, because the settlement limited its ability to enforce the CC&R's for noncompliance by the Elnekaves. Therefore, Fiege is not applicable. We alternatively hold that the Elnekaves have waived this issue by failing to discuss the facts or holding of Fiege or to analyze that holding in light of the appellate record. (Landry, supra, 39 Cal.App.4th at pp. 699-700.)\\nThe Elnekaves contend that the monetary portion of the settlement, calling for the payment of money by the HOA's insurer, is separately enforceable under Fiege, supra, 125 Cal.App.4th 1350. We disagree. Under this contention, we would be peeling off one portion of the settlement, leaving the fate of the other \\u2014 the enforceability of the CC&R's \\u2014 in limbo. Nothing in Fiege suggests that part of what was intended as a global settlement may be enforced under section 664.6, and we decline to adopt such a rule.\\nFinally, the Elnekaves contend that the HOA waived its objections concerning HOA's failure to have a proper representative at the September 2004 settlement conference by not raising the issue at the April 2005 hearing on the order to show cause, or in response to the trial court's proposed order enforcing the settlement. We reject that contention for two reasons. First, the HOA raised the issue as to Stites in its opposition to the original section 664.6 motion, and the Elnekaves raised the issue of the insurer's presence in their reply brief, meaning that these issues were before the court. Second, the waiver rule is designed to allow the trial court the opportunity to correct an error before ruling. (In re Carrie W. (2003) 110 Cal.App.4th 746, 755 [2 Cal.Rptr.3d 38].) Because the defect \\u2014 the failure to have a proper representative of the HOA present \\u2014 took place seven months earlier and could not have been remedied at a later time, the waiver rule is inapplicable.\\nBecause we hold that the settlement was unenforceable under section 664.6 and reverse the judgment, we also grant the Elnekaves' cross-appeal and reverse the order dismissing their complaint.\\nDISPOSITION\\nFor the reasons set forth above, the judgment enforcing the purported settlement of September 8, 2004, pursuant to section 664.6 is reversed, as is the trial court's order dismissing the Elnekaves' complaint. Each party to bear its own costs on appeal.\\nCooper, P. J., and Boland, J., concurred.\\nA petition for a rehearing was denied October 4, 2006.\\nThe complaint is not in the record. Our description of the complaint and the underlying dispute is based on statements in the parties' appellate briefs.\\nAll further section references are to the Code of Civil Procedure.\\nAs part of the Elnekaves' reply brief, Sara Elnekave submitted a signed declaration where she expressly adopted and consented to the settlement. We express no opinion on the legal effect of this declaration in future proceedings, except to observe that for section 664.6 purposes one spouse's signature or acquiescence may be insufficient to bind the other spouse. (See Cortez v. Kenneally (1996) 44 Cal.App.4th 523, 530 [51 Cal.Rptr.2d 671].)\\nBecause we hold that the settlement was unenforceable on this ground, we need not reach the other issues raised by the parties. We also make clear that our decision in no way affects the Elnekaves' ability to enforce the settlement by alternative means, such as a summary judgment motion, separate suit in equity, or amendment to the complaint. (Gauss, supra, 103 Cal.App.4th at p. 1122.) Our decision should also not be construed one way or the other as affecting the merits of any arguments the Elnekaves may raise concerning principles of agency, be they actual, ostensible, or apparent, as among State Farm, Stites, and the HOA.\\nWe also share the undoubted frustration of the trial court with this case being remanded for further proceedings. This settlement was reached following a mandatory settlement conference. California Rules of Court, rule 222 requires that persons with full authority to settle must personally attend the settlement conference, as must anyone else whose \\\"consent\\\" is necessary. Failure to comply with rule 222 may result in the imposition of sanctions under rule 227. (Barrientos v. City of Los Angeles (1994) 30 Cal.App.4th 63, 71, fn. 7 [35 Cal.Rptr.2d 520]; Sigala v. Anaheim City School Dist. (1993) 15 Cal.App.4th 661, 674 [19 Cal.Rptr.2d 38].) At oral argument, counsel for the HOA asserted that neither Stites nor the State Farm adjuster had authority to settle at the mandatory settlement conference. Our remand does not preclude the trial judge from consideration of sanctions against the HOA. We express no opinion on whether attorneys fees, including those incurred by the Elnekaves on appeal, are an appropriate component of any sanction award.\\nOf course, section 664.6 does allow for partial settlements, but that was not the intent of the parties in this case.\"}"
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+"{\"id\": \"4235253\", \"name\": \"In re RANDY COPLEY on Habeas Corpus\", \"name_abbreviation\": \"In re Copley\", \"decision_date\": \"2011-06-08\", \"docket_number\": \"No. C063289\", \"first_page\": \"427\", \"last_page\": \"437\", \"citations\": \"196 Cal. App. 4th 427\", \"volume\": \"196\", \"reporter\": \"California Appellate Reports, Fourth Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T00:37:48.591868+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In re RANDY COPLEY on Habeas Corpus.\", \"head_matter\": \"[No. C063289.\\nThird Dist.\\nJune 8, 2011.]\\nIn re RANDY COPLEY on Habeas Corpus.\\nCounsel\\nEdmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Julie L. Garland, Assistant Attorney General, Anya M. Binsacca, Jessica N. Blonien and Krista L. Pollard, Deputy Attorneys General, for Appellant The People.\\nBrandie Grover Devall for Respondent Randy Copley.\", \"word_count\": \"3639\", \"char_count\": \"22881\", \"text\": \"Opinion\\nRAYE, P. J.\\nAppellant, the warden of Deuel Vocational Institution (the Warden), appeals from the remedy ordered by the trial court in its order granting respondent Randy Copley's petition for a writ of habeas corpus. The trial court found Governor Schwarzenegger's November 2008 decision was not supported by \\\" 'some evidence,' \\\" failed to contain clear citation to the evidence relied upon, and failed to articulate a \\\" 'rational nexus' \\\" between the evidence in the record and the Governor's determination that Copley is unsuitable for parole. Accordingly, the trial court vacated the Governor's reversal of the Board of Parole Hearings's (the Board) June 2008 parole grant and reinstated the June 19, 2008, finding of the Board that Copley was suitable for parole. In June 2009, during the pendency of this appeal, the Board held another parole hearing. Relying largely on the Governor's reversal of the 2008 parole grant, the Board found Copley was unsuitable for parole. At no time has the Warden challenged the merits of the decision finding the Governor's reversal unsupported by some evidence. Rather, the Warden only seeks modification of file remedy. We shall affirm the trial court's order and remedy.\\nFACTUAL BACKGROUND AND PROCEDURAL HISTORY\\nIn 1991 Copley and his friend \\\"Crotty\\\" agreed to rob an intoxicated man they had met at a billiard parlor. During the course of the robbery, Crotty beat and stabbed the man, killing him. Pursuant to a negotiated plea, Copley pled guilty to second degree murder and was sentenced to an indeterminate term of 15 years to life in state prison. This term began on September 29, 1992.\\nOn June 19, 2008, the Board conducted a parole consideration hearing and found Copley suitable for parole. On November 5, 2008, the Governor reversed the Board's decision.\\nCopley filed a petition for a writ of habeas corpus in the trial court, challenging the Governor's decision. Copley alleged the Governor's decision violated his due process rights because it was not supported by some evidence that he posed a current danger to society and was based on the immutable facts of his offense.\\nOn September 8, 2009, the trial court granted Copley's petition for a writ of habeas corpus. The court found the Governor's decision that Copley posed \\\"an unreasonable risk of danger to society if released is not supported by 'some evidence' in the record.\\\" The court further found the Governor's decision did not contain \\\"clear citation to the evidence relied upon for the reversal, or an express articulation of a 'rational nexus' between that evidence in the record and his determination that [Copley] is unsuitable for parole.\\\" Accordingly, the court granted Copley's petition for a writ of habeas corpus, reversed and vacated the Governor's decision reversing the grant of the Board, and reinstated the June 19, 2008, finding of the Board that Copley was suitable for parole.\\nMeanwhile, in June 2009 the Board conducted another parole consideration hearing. In the year between hearings, no new psychological evaluation was performed. Copley had remained discipline free, paid off his restitution, and had continued to participate in Narcotics Anonymous and group therapy. The only new evidence presented to the Board was letters of support from family members and prospective employers, and laudatory chronological reports. At the 2009 hearing, the Board questioned Copley about the Governor's reversal, specifically, the Governor's finding that Copley lacked insight into the commitment offense and his substance abuse. The Board agreed Copley lacked insight, \\\"as evidenced by [his] inability to adequately respond to the governor's concern\\\" about that lack of insight regarding the commitment offense. Accordingly, the Board found Copley was not suitable for parole.\\nAt oral argument, the Attorney General informed this court of the 2009 parole hearing. We requested supplemental briefing on what effect, if any, the 2009 hearing and decision to deny parole should have on this court's disposition of the current appeal. In his briefing, the Warden acknowledges that if \\\"the Court vacates the Governor's decision reversing the Board's 2008 decision, the Board would not have had the authority to consider Copley's suitability for parole in 2009.\\\" The Warden then reiterates the argument that the correct remedy in this case is to remand the matter to the Governor's office for reconsideration rather than reinstating the 2008 Board decision.\\nDISCUSSION\\nI\\nThe Warden does not challenge the reversal of the Governor's decision or the finding that the decision was not supported by some evidence. The Warden challenges only the remedy ordered by the trial court, claiming that the proper remedy \\\"is an order for the parole authority to vacate its decision and to proceed in accordance with due process. In addition, [the Warden argues] the separation-of-powers doctrine prohibits one branch of government from assuming the role or responsibilities of another. And, determining whether an inmate is suitable for parole is an exclusively executive function.\\\" Accordingly, the Warden contends this court should remand the matter back to the Governor for reconsideration in light of the court's opinion. We disagree.\\nContrary to the Warden's claim, the trial court's order reinstating the Board's June 19, 2008, finding was the proper remedy. The Warden has cited no authority requiring remand to the Governor after a court has found there is not \\\"some evidence\\\" to support his decision reversing the Board's parole grant. In fact, the Warden has acknowledged the weight of authority is to the\\ncontrary. Indeed, the Supreme Court has affirmed a similar judgment that afforded the remedy of reinstating the Board's parole release order. (In re Lawrence (2008) 44 Cal.4th 1181, 1190, 1201, 1229 [82 Cal.Rptr.3d 169, 190 P.3d 535] (Lawrence).) The weight of authority on this point continues to convince us that the trial court ordered the appropriate remedy in reinstating the Board's decision. (See In re Burdan (2008) 169 Cal.App.4th 18, 39 [86 Cal.Rptr.3d 549] (Burdan); In re Moses (2010) 182 Cal.App.4th 1279, 1314 [106 Cal.Rptr.3d 608] (Moses); In re Masoner (2009) 179 Cal.App.4th 1531, 1540 [102 Cal.Rptr.3d 463] (Masoner); In re Dannenberg (2009) 173 Cal.App.4th 237, 257 [92 Cal.Rptr.3d 647] (Dannenberg); In re Vasquez (2009) 170 Cal.App.4th 370, 387 [87 Cal.Rptr.3d 853] (Vasquez).)\\nThe Warden rests his argument that the proper remedy is to remand the matter to the Governor for reconsideration on the premise that the traditional remedy when a due process violation is found is to provide the process due. The Warden relies on In re Rosenkrantz (2002) 29 Cal.4th 616 [128 Cal.Rptr.2d 104, 59 P.3d 174] (Rosenkrantz), in which the California Supreme Court held \\\"the judicial branch is authorized to review the factual basis of a decision of the Board denying parole in order to ensure that the decision comports with the requirements of due process of law . . . .\\\" (Id. at p. 658.) Rosenkrantz also indicated that the appropriate remedy when the decision of the Board is not supported by some evidence is to order the Board to vacate its decision denying parole and proceed in accordance with due process of law. (Ibid.) However, in Rosenkrantz, the court did not reach the question of the appropriate remedy upon finding that the Governor's decision is' unsupported by some evidence, nor did the courts in other cases upon which the Warden relies. (See In re Carr (1995) 38 Cal.App.4th 209, 218 [45 Cal.Rptr.2d 34] [even if decision not to hold annual parole discharge review violated due process, remedy would be to provide annual hearing, not nullification of parole revocation decision]; In re Love (1974) 11 Cal.3d 179 [113 Cal.Rptr. 89, 520 P.2d 713] [failure to provide inmate with a confidential report before his parole revocation hearing violated due process; remedy was to provide the report and a new revocation hearing]; In re Castaneda (1973) 34 Cal.App.3d 825 [110 Cal.Rptr. 385] [failure to hold prerevocation hearing violated due process; remedy was to order Board to vacate parole revocation decision and conduct the prerevocation hearing].)\\nAfter briefing was completed in this case, the California Supreme Court issued In re Prather (2010) 50 Cal.4th 238 [112 Cal.Rptr.3d 291, 234 P.3d 541] (Prather), in which it conclusively resolved the issue of the appropriate remedy when a reviewing court concludes a decision by the Board to deny parole is not supported by \\\"some evidence.\\\" In Prather, the Supreme Court concluded \\\"that a decision granting habeas corpus relief in these circumstances generally should direct the Board to conduct a new parole-suitability hearing in accordance with due process of law and consistent with the decision of the court, and should not place improper limitations on the type of evidence the Board is statutorily obligated to consider.\\\" (Id. at p. 244.) Prather did not consider the appropriate remedy when it is the Governor's decision that is not supported by \\\"some evidence\\\" rather than the Board's, although the court noted the distinction between the two situations. (Id. at p. 243.) As the Warden would have it, there should be no difference in remedy whether it is a Board decision or a gubernatorial decision that is vacated.\\nThat the remedy cannot be the same in both circumstances is rooted in the fundamentally different roles and authority of the Board and the Governor in parole decisions. \\\"[T]he statutes and governing regulations establish that the decision to grant or deny parole is committed entirely to the judgment and discretion of the Board, with a constitutionally based veto power over the Board's decision vested in the Governor.\\\" (Prather, supra, 50 Cal.4th at p. 251.)\\nThe Board holds the hearing where evidence is presented regarding the inmate's suitability for parole. (Pen. Code, \\u00a7 3041 et seq.) If a court vacates a decision of the Board and remands the matter to the Board, the Board can give the inmate a new hearing at which it considers the full record, including additional available evidence, to decide the inmate's current suitability for parole. (Prather, supra, 50 Cal.4th at pp. 244, 253, 257-258; Pen. Code, \\u00a7 3042; Cal. Code Regs., tit. 15, \\u00a7 2402, subd. (b).)\\nBy contrast, the Governor's constitutional authority is limited to a review of the materials presented by the Board. (Cal. Const., art. V, \\u00a7 8, subd. (b); see also Pen. Code, \\u00a7 3041.2, subd. (a).) Furthermore, the Governor's review of the Board's decision is \\\"limited to a consideration of the record before the hearing panel.\\\" (In re Arafiles (1992) 6 Cal.App.4th 1467, 1477, 1478 [8 Cal.Rptr.2d 492] (Arafiles); see also Rosenkrantz, supra, 29 Cal.4th at pp. 660-661; In re Smith (2003) 109 Cal.App.4th 489, 507 [134 Cal.Rptr.2d 781].)\\nOur recent decision in In re Ross (2010) 185 Cal.App.4th 636 [110 Cal.Rptr.3d 811] (Ross) does not compel a different interpretation of the\\nevidence the Governor would be permitted to consider in this case. In In re Ross (2009) 170 Cal.App.4th 1490 [88 Cal.Rptr.3d 873] (Ross I), after reviewing the record we expressly found there was evidence supporting the Governor's decision and that the Governor had properly considered all the factors he was required to consider. (Ross I, supra, 170 Cal.App.4th at pp. 1497, 1510, 1512.) However, after the Governor's decision, the Supreme Court decided Lawrence, requiring the Governor to more explicitly articulate findings and the connection between those findings and the prisoner's current dangerousness. (Ross I, supra, 170 Cal.App.4th at pp. 1497-1498.) We recognized it was inappropriate for us to \\\"salvage\\\" the Governor's decision, despite the existence of evidence supporting it, and thus were compelled to remand the parole determination to the Governor for further proceedings consistent with the requirements of Lawrence.\\nBefore the Governor's reconsideration, the Board conducted another parole consideration hearing in 2008. (Ross, supra, 185 Cal.App.4th at p. 647.) During that hearing, the Board considered a 2008 mental health evaluation which indicated that Ross still \\\" 'pose[d] a risk of recidivism and violence, and that his release from prison at this time would pose an unreasonable risk to public safety.' \\\" (Id. at p. 640.) Ross had an opportunity to review and comment on the mental health evaluation as part of the 2008 hearing. The Board also provided the Governor with the 2008 mental health evaluation for his reconsideration of the 2006 parole decision. On remand, in 2009 the Governor again reversed the Board's 2006 decision. (Ibid.) In the specific circumstances of Ross, we found the Governor properly considered the 2008 mental health evaluation. But the holding in Ross is limited: the Governor may consider new evidence on remand where the Board has provided the Governor with evidence that was unavailable when the original parole decision was made, that evidence supports the conclusion the prisoner would pose an unreasonable risk to public safety if released, and the prisoner has had an opportunity to respond to that evidence. (Id. at p. 645.)\\nIn this case, the Warden has not explained and we cannot discern what purpose a remand to the Governor would serve. The Warden has not identified any new evidence bearing on defendant's current dangerousness that was not previously available, that the Governor has not considered, or that was not reflected in the Governor's decision. Remand to the Governor would simply allow the Governor another review of the same materials already provided by the Board and reviewed by him. The Warden has not challenged the finding that the Governor's decision was not supported by some evidence. Further consideration by the Governor of the same evidence already considered will not change this fact. \\\"[Njeither the Governor, nor the Board, has the authority to ' \\\"disregard a judicial determination regarding the sufficiency of the evidence [of current dangerousness] and to simply repeat the same decision on the same record.\\\" ' [Citation.]\\\" (In re McDonald (2010) 189 Cal.App.4th 1008, 1024 [118 Cal.Rptr.3d 145] (McDonald).) Thus, in this case, \\\"[rjemanding the matter to the Governor would be an idle act because the Governor has already reviewed the materials provided by the Board and, according to the superior court's unchallenged order, erroneously concluded that there was some evidence in those materials to support a reversal of the Board's decision. [Citations.]\\\" (Masoner, supra, 179 Cal.App.4th at p. 1538.)\\n\\\"[A] petitioner is entitled to a constitutionally adequate and meaningful review of a parole decision, because an inmate's due process right 'cannot exist in any practical sense without a remedy against its abrogation.' \\\" (Prather, supra, 50 Cal.4th at p. 251; see also Rosenkrantz, supra, 29 Cal.4th at p. 664; Lawrence, supra, 44 Cal.4th at p. 1213.) \\\"[T]o 'proceed in accordance with due process of law' does not mean . the Governor . is to be given an opportunity to reconsider the parole decision. Rather, where, as here, it is determined there is not 'some evidence' in the record to support the Governor's decision to overrule the Board's grant of parole, the proper remedy is to vacate the Governor's decision and to reinstate that of the Board. (See Lawrence, supra, 44 Cal.4th at pp. 1190, 1229 [affirming a Court of Appeal decision to vacate the Governor's denial of parole and reinstate the Board's grant of parole].)\\\" (Burdan, supra, 169 Cal.App.4th at p. 39; see also Moses, supra, 182 Cal.App.4th at p. 1314; Masoner, supra, 179 Cal.App.4th at p. 1540; Dannenberg, supra, 173 Cal.App.4th at p. 257; Vasquez, supra, 170 Cal.App.4th at p. 387.) Accordingly, the trial court issued the proper remedy.\\nAs noted by Copley in his supplemental brief, and conceded by the Warden, our finding that the trial court issued a proper remedy by vacating the Governor's decision and reinstating the Board's 2008 decision finding Copley suitable for parole also vacates the Board's 2009 decision, as that was a hearing the Board had no authority to conduct.\\nn\\nThe Warden also contends \\\"remanding the matter back to the Governor respects the separation of powers.\\\" We reject the implicit contention that a failure to remand would violate the separation of powers.\\nArticle III, section 3 of the California Constitution provides that the powers of state government are divided into the legislative, executive, and judicial branches, and persons charged with the exercise of one power may not exercise either of the others, except as permitted by the state Constitution. {Rosenkrantz, supra, 29 Cal.4th at p. 662.)\\nThere is no question that \\\"[t]he executive branch has 'inherent and primary authority' over parole matters. [Citation.] Within that branch, the\\nBoard is an 'executive parole agency' that is an 'arm of the Department of Corrections.' \\\" (In re Roberts (2005) 36 Cal.4th 575, 588 [31 Cal.Rptr.3d 458, 115 P.3d 1121].) \\\"By its nature, the determination whether a prisoner should be released on parole is generally regarded as an executive branch decision. [Citations.] The decision, and the discretion implicit in it, are expressly committed to the executive branch. [Citations.] It is not a judicial decision.\\\" (In re Morrall (2002) 102 Cal.App.4th 280, 287 [125 Cal.Rptr.2d 391].)\\nAs an arm of the executive branch, the Board exercised its discretion in 2008 and determined Copley to be suitable for release. In the absence of some evidence that Copley posed a current threat to public safety, the Governor did not have the discretion to reverse that determination and deny Copley release. (See Lawrence, supra, 44 Cal.4th at p. 1204; Rosenkrantz, supra, 29 Cal.4th at pp. 663-664.) Judicial review of the Governor's parole decisions under the \\\"some evidence\\\" standard does not violate the separation of powers doctrine. (Rosenkrantz, supra, 29 Cal.4th at p. 667.)\\nMeaningful judicial review of the Governor's parole decision necessarily includes the power to fashion a remedy for the aggrieved party. Though we decline to remand the matter to the Governor, the remedy provided here \\\"does not usurp the inherent and primary authority of the executive branch over parole matters, does not materially impair such authority, and does not control a Governor's exercise of discretion.\\\" (Rosenkrantz, supra, 29 Cal.4th at p. 667.) In reinstating the 2008 order of the Board, it remains the executive branch, not the judicial, which has exercised its discretion to determine Copley's suitability for parole. By reinstating \\\"an earlier executive branch decision\\u2014made by the Board\\u2014overturning only the 'veto' of that decision by the Govemor[,] . . . [t]he power of the executive branch is, in this instance, not infringed, but respected.\\\" (McDonald, supra, 189 Cal.App.4th at p. 1024, citation omitted.) Thus, there is no violation of the separation of powers.\\nIll\\nLastly, our decision affirming the trial court's order reinstating the Board's parole decision does not guarantee Copley's immediate release. The information available to the Board and the Governor regarding Copley's current suitability for parole is not static. Facts and circumstances may have changed and the parole authorities can react to changes in Copley's status or additional evidence indicating he would currently be a danger to the public if released. For example, \\\"[u]nder Penal Code section 3041.1, the Governor has authority, up to 90 days prior to a scheduled parole release date, to request the full Board to grant in bank review of a panel's parole decision, and must state the reason or reasons for the request, indicating 'whether the request is\\nbased on a public safety concern, a concern that the gravity of current or past convicted offenses may have been given inadequate consideration, or on other factors.' \\\" (Rosenkrantz, supra, 29 Cal.4th at p. 659, fn. 13.) The Board itself is also empowered to rescind a parole date for good cause, such as where the prisoner has engaged in disciplinary misconduct subsequent to the parole grant; the prisoner's mental state has deteriorated; fundamental errors occurred, resulting in the improvident granting of a parole date; or any new information indicating that parole should not occur. (Pen. Code, \\u00a7 3041.5, 3041.7; Cal. Code Regs., tit. 15, \\u00a7 2451; In re Powell (1988) 45 Cal.3d 894, 901-902 [248 Cal.Rptr. 431, 755 P.2d 881].) \\\"Finally, after a prisoner has been released on parole, both the Board and the Governor have die power to suspend or revoke parole for cause. (Pen. Code, \\u00a7 3060, 3062, 3063.)\\\" (Rosenkrantz, supra, 29 Cal.4th at p. 659, fn. 13.)\\nSince Copley remains in custody, we will \\\"direct the Board t\\u00f3 proceed in accordance with its usual procedures for release of an inmate on parole unless within 30 days of the finality of this decision the Board determines in good faith that cause for rescission of parole may exist and initiates appropriate proceedings to determine that question. [Citations.]\\\" (In re Twinn (2010) 190 Cal.App.4th 447, 474 [118 Cal.Rptr.3d 399].)\\nDISPOSITION\\nThe order of the trial court dated September 8, 2009, granting Copley's petition for a writ of habeas corpus, reinstating the Board's June 2008 decision, and vacating the Governor's reversal of that decision is affirmed. The Board's June 18, 2009, decision is vacated. Upon finality of this decision, the stay previously issued is vacated.\\nHull, J., and Robie, J., concurred.\\nThe Warden's request for judicial notice of the June 18, 2009, parole hearing is granted.\\nFurther undesignated statutory references are to the Penal Code.\\nAs stated by Justice Puglia in analyzing the limitation on the record which can be considered by the Governor, \\\"Although neither [California Constitution, article V,] section 8[, subdivision] (b) nor Penal Code section 3041.2 expressly states the Governor's review is limited to a consideration of the record before the hearing panel, such a limitation is implicitly conveyed by the common meaning of the term 'review,' particularly when that term is used as here, in juxtaposition to an express reference in the statute to materials provided for the Governor's review by the parole authority. In its usual construction, ' \\\"review indicates simply a reexamination of proceedings already had\\\" without the taking of any new evidence' [citation]; i.e., an examination of the same record by a different tribunal. [Citations.]\\\" (Arafiles, supra, 6 Cal.App.4th at p: 1477.)\"}"
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+"{\"id\": \"4381892\", \"name\": \"SIGMUND SNELSON et al., Plaintiffs and Respondents, v. ONDULANDO HIGHLANDS CORPORATION et al., Defendants and Appellants\", \"name_abbreviation\": \"Snelson v. Ondulando Highlands Corp.\", \"decision_date\": \"1970-03-06\", \"docket_number\": \"Civ. No. 33652\", \"first_page\": \"243\", \"last_page\": \"259\", \"citations\": \"5 Cal. App. 3d 243\", \"volume\": \"5\", \"reporter\": \"California Appellate Reports, Third Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T17:40:19.948249+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SIGMUND SNELSON et al., Plaintiffs and Respondents, v. ONDULANDO HIGHLANDS CORPORATION et al., Defendants and Appellants.\", \"head_matter\": \"[Civ. No. 33652.\\nSecond Dist., Div. Five.\\nMar. 6, 1970.]\\nSIGMUND SNELSON et al., Plaintiffs and Respondents, v. ONDULANDO HIGHLANDS CORPORATION et al., Defendants and Appellants.\\nCounsel\\nHalde, Barrymore & Stevens and Carroll Barrymore for Defendants and Appellants.\\nNordman, Cormany, Hair & Compton, Ralph L. Cormany, Norman F. Montrose and Larry L. Hines for Plaintiffs and Respondents.\", \"word_count\": \"5009\", \"char_count\": \"30484\", \"text\": \"Opinion\\nAISO, J.\\nDefendants Howard Miller Ferguson, Clifford Kolhass, Ferguson Realty, Inc., a corporation, and Ondulando Highlands Corporation, a corporation, appeal from a judgment granting plaintiffs Sigmund Snelson and Ann E. Snelson, husband and wife, rescission of their purchase of residential property from defendant Ondulando Highlands Corporation, and awarding said plaintiffs monetary damages and costs of suit, jointly and severally, against all four defendants.\\nPlaintiffs brought this action against defendants Ondulando Highlands Corporation (hereafter \\\"Ondulando\\\"), Ferguson, Kolhass, and Does I through XII. Ferguson Realty, Inc., a corporation (hereafter \\\"Ferguson Realty\\\") was served subsequently as defendant Doe I. The complaint set forth eight separate counts upon the following theories: rescission on fraudulent misrepresentation, negligence in design and development of the property, strict liability for defective design and manufacture, breach of warranties, failure of consideration, and mistake resulting in damages.\\nPursuant to stipulation of counsel, the trial court ordered the rescission count \\\"bifurcated\\\" from the other causes of action and tried first before a court sitting without a jury. It was further stipulated that if rescission were granted to plaintiffs, they would then dismiss their other remaining causes of action.\\nI.\\nThe facts stated in the light most favorable to the findings of the trial court (Bancroft-Whitney Co. v. McHugh (1913) 166 Cal. 140, 142 [134 P. 1157]; cf. Cunningham v. Simpson (1969) 1 Cal.3d 301, 306 [81 Cal. Rptr. 855, 461 P.2d 39]) are as follows:\\nIn October or November 1964 plaintiffs commenced negotiations for the purchase of certain real property improved with a residential house located in Ondulando Highlands, Ventura, California, commonly known as 1062 Via Cielito (legal description: Lot 238 of Tract 1435). Sigmund Snelson (hereafter \\\"Snelson\\\") discussed the purchase of the home and lot with Kolhass and Ferguson. Kolhass represented himself to be the sales manager of the tract for Ondulando and introduced Ferguson as president of Ondulando. In Ferguson's presence, plaintiff inquired of Kolhass whether or not there was any fill on the particular lot in which plaintiff was interested. Kolhass replied that he was sure there was no fill on the lot but that he had maps which plaintiff could look at to confirm that fact. Throughout the trial the term \\\"cut\\\" lot was employed to refer to land whose original level was higher than that desired for the final pad, requiring that the land be cut down to the desired elevation. On the other hand, the term \\\"fill\\\" lot was used to indicate land whose original level was lower than that desired for the final pad, requiring that fill material be added to bring the land up to the desired elevation.\\nGrading and engineering maps and reports of the property in question were provided by Kolhass for Snelson's study. These lhaps showed the lot to be cut rather than fill. Snelson testified that he relied on both the oral and documentary representations that the lot was cut in making his decision to buy the property. He was not interested in buying a lot that had on it any fill whatsoever, and would not have purchased the lot in question if he had been apprised of its having a fill.\\nIn early December 1964 plaintiffs entered into an escrow agreement with Ondulando for the purchase of the real property .improved with the residential home. The total purchase price for the property was $30,000. Plaintiffs made a down payment of $4,800 in cash and signed a $25,200 promissory note naming California Federal Savings & Loan Association as payee. Defendant Ondulando executed a \\\"Corporation Grant Deed\\\" to plaintiffs as grantees, and plaintiffs executed a first deed of trust, securing the $25,200 note, naming California Federal Savings & Loan (hereafter \\\"California Federal\\\") as the beneficiary. Ondulando authorized the escrow to pay out of funds becoming payable to it a \\\"Demand for partial release of the loan of record in favor of California Federal\\\" and a commission of $1,000 to Ferguson Realty. The amount of the demand for partial release of the loan in favor of California Federal is not disclosed. Plaintiffs moved onto the property in January 1965. Escrow closed around February 10, 1965. Plaintiffs had made all of the $196 monthly payments on the note apparently up to April 9, 1968, the date of the findings.\\nBetween October and December 1965 there was a substantial amount of rain in Ventura County. On or about December 30, 1965, plaintiffs observed that after the rains a large landslide occurred on the edge of their lot.\\nExpert testimony disclosed that the lot purchased by plaintiffs was not cut, but in fact contained fill material and that the landslide would not have occurred had the lot been cut.\\nPlaintiffs' attorneys by letter dated January 24, I960, addressed to Ondulando (attention of defendant Ferguson) gave notice of rescission, tendered possession of the property with improvements, and demanded reimburse ment for sums expended on the house and property, for the down payment, closing costs, monthly payments on the note, and for improvements.\\nIn the interest of avoiding repetition, other facts will be related where pertinent to the particular issue discussed below.\\nII.\\nWhile defendants raise the question under several headings of their brief, their first major contention is that the evidence is insufficient to sustain the findings of fact necessary to support a rescission on the ground of fraud.\\n\\\"It is now settled in California that where the seller [of real property] knows of facts materially affecting the value or desirability of the property which are known or accessible only to him and also knows that such facts are not known to, or within the reach of the diligent attention and observation of the buyer, the seller is under a duty to disclose them to the buyer. [Citations.] Failure of the seller to fulfill such duty of disclosure constitutes actual fraud. [Citations.]\\\" (Lingsch v. Savage (1963) 213 Cal.App.2d 729, 735-736 [29 Cal.Rptr. 201, 8 A.L.R.3d 537].) Here, the court went even further and found affirmative representations that the land was cut, rather than fill. \\\"A misrepresentation or concealment of the known fact of a fill in a lot sold to another constitutes material inducement which works fraud upon the buyer, who is ignorant of the fact. [Citations.]\\\" (Buist v. C. Dudley De Velbiss Corp. (1960) 182 Cal.App.2d 325, 331 [6 Cal.Rptr. 259].) Affirmative representation that land is \\\"cut\\\" when in fact it is on a \\\"fill\\\" constitutes actionable fraud for either damages or rescission. (Buist v. C. Dudley De Velbiss Corp. (1960) supra, at page 330; Burkett v. J. A. Thompson & Son (1957) 150 Cal.App.2d 523, 527 [310 P.2d 56]; Tatham v. Pattison (1952) 112 Cal.App.2d 18, 21 [245 P.2d 668].)\\nIt is also familiar law that an appellate court will not disturb a finding or a verdict if it finds the evidence in support thereof in conflict. \\\"The presumption is in favor of the judgment, and the appellate court must consider the evidence in the light most favorable to the prevailing party. All conflicts must be resolved in favor of the respondent and all legitimate and reasonable inferences indulged in to uphold the verdict\\\" (Cunningham v. Simpson (1969) supra, 1 Cal.3d 301, 306) or the findings (Bancroft-Whitney Co. v. McHugh (1913) supra, 166 Cal. 140, 142). This rule was applied in Buist, Burkett, and Tatham cited above.\\nThere can be little dispute with the court's finding the improved residential property here involved to have been a filled lot; it had been \\\"undercut\\\" in the course of cutting so that the level of the land was raised by filling to achieve the desired construction pad level.\\nFinding No. 6 that defendants made oral and documentary representations that the property was a cut lot, not subject to earth movement, geologically stable, and one with which there would be no trouble with movement, slippage, slide or collapse of earth, finds support in the evidence. Defendants Kolhass and Ferguson indicated to Snelson that they were selling to plaintiffs an all cut non-fill property. Kolhass reinforced his oral representation by providing maps and reports to Snelson, which maps and reports showed the lot to be cut.\\nDefendant Kolhass was working for the Ferguson Realty which was the selling agent for Ondulando. Ferguson was the president of both Ondulando and Ferguson Realty. Kolhass made oral representations to Snelson in Ferguson's presence. Kolhass also testified that he was working for defendant Ferguson and that he was present on the tract premises during the entire period in which the lot in question was graded \\\"and developed. It may be inferred that Kolhass knew from watching the operations that the lot was fill and not cut.\\nPlaintiffs relied upon the oral and documentary representations and would not have purchased the lot but for such representations. Although Snelson was a geologist for oil companies, he was not an expert in soils engineering as it pertained to subdivision grading work. Surface observations would not have revealed whether the land was cut or fill. The documentary materials furnished to him gave him no notice of the fill. \\\" 'An independent investigation or an examination of property does not preclude reliance on representations where the falsity of the statement is not apparent from an inspection, or the person making the representations has a superior knowledge, or the party relying thereon is not competent to judge the facts without expert assistance.' \\\" (Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231, 261 [73 Cal.Rptr. 127].)\\nThe evidence is thus adequate to support the findings which under-gird the judgment granting plaintiffs rescission of their purchase of the property from Ondulando upon the ground of fraudulent misrepresentation.\\nIII.\\nDefendants Ferguson, Kolhass, and Ferguson Realty next contend that the court should have granted their motion for a nonsuit as to the rescission cause of action. They first attack Finding 1 asserting that insofar as it finds that these particular defendants were acting \\\"for themselves as principals\\\" as well as agents of Ondulando and of each other, it totally lacks evidentiary support. We agree. The uncontradicted evidence establishes defendant Ondulando to have been the vendor and principal on the contract to sell and that the other appealing defendants were only agents of Ondulando. That being so, they contend, they were entitled to a nonsuit, citing authority holding that where an agent of the vendor is not a party to the contract he is entitled to a nonsuit in an action for rescission. (E.g. Leavens v. Sharp (1944) 66 Cal.App.2d 425, 428 [152 P.2d 460]; Mahoney v. Felkins (1958) 162 Cal.App.2d 114, 116 [327 P.2d 911]; 50 Cal.Jur.2d, Vendor and Purchaser, \\u00a7 501, p. 641.) However, the effect of section 1692 of the Civil Code added in 1961 (Stats. 1961, ch. 589, \\u00a7 3; Paularena v. Superior Court (1965) 231 Cal.App.2d 906, 912-913 [42 Cal.Rptr. 366]) upon the recommendation of the Law Revision Commission must be considered.\\nThe portion of section 1692 pertinent to the dispute here reads: \\\"If in an action or proceeding a party seeks relief based upon rescission and the court determines that the contract has not been rescinded, the court may grant any party to the action any other relief to which he may be entitled under the circumstances. [<[] A claim for damages is not inconsistent with a claim for relief based on rescission. The aggrieved party shall be awarded complete relief, including restitution of benefits, if any, conferred by him as a result of the transaction and any consequential damages to which he is entitled; but such relief shall not include duplicate or inconsistent items of recovery. . . .\\\" (Italics added.)\\nThe Law Revision Commission in recommending adoption of section 1692 stated, among other things, \\\"6. To dispel any doubt concerning the scope of relief that may be given in the action to enforce rescission, the statute should also indicate that the court may award consequential damages as well as a restoration of any consideration that has been given. The court should also be given the specific authority to render a conditional judgment in appropriate cases or otherwise adjust the equities between the parties.\\\" (3 Cal. Law Revision Com. Rep. (September 1961) pp. D-7 to D-8.)\\nThe amount of $4,288.50 which plaintiffs paid for improvements of the property subsequent to their taking possession is a part of the consequential damage to which plaintiffs are entitled upon a rescission. (Cf. Buist v. C. Dudley De Velbiss Corp. (1960) supra, 182 Cal.App.2d 325, 334, 336.) The same is true of payments made on the note to California Federal. The judgment insofar as it awards plaintiffs the sum of $9,088.50 directly appears to be a total of the $4,288.50 and the down payment of $4,800. We have been unable to find in the record the disposition of the $196 monthly payments (or the total amount thereof), and the $467.05 closing costs of the original escrow. Regardless of the equities between the defendants inter se, if the innocent plaintiffs are to be restored to their status quo ante they must be reimbursed for these items of consequential damages. It would appear not improper to hold all of the guilty defendants (who would be liable in an action for damages) jointly and severally liable on these damages as an ancillary remedy to the principal remedy of rescission restoring plaintiffs to their status quo ante Defendants Ferguson, Kolhass, and Ferguson Realty consequently were not entitled to a nonsuit.\\nIV.\\nThe next question to be considered is whether the trial court was correct in its conclusion that California Federal was neither a necessary nor an indispensable party to this action. The record discloses that both plaintiffs and defendants had the opportunity of joining California'Federal as a party to the action as the beneficiary under the purchase money trust deed encumbering the title to the property. However, each side tried to maneuver the other into undertaking the necessary procedural action. California Federal had notice of this action, having been subpoenaed to produce certain documents in its possession, and it could have asked permission to intervene, but chose not to do so. As long as the court in the exercise of its equitable powers could devise a decree granting plaintiffs rescission without infringing upon the legal rights of California Federal, the latter was not an indispensable party, although the difficulties of drafting an appropriate rescission judgment would have been alleviated materially if California Federal had been made a party. 'A person is an indispensable party to an action if his absence will prevent the court from rendering any effective judgment between the parties or would seriously prejudice any party before the court or if his interest would be inequitably affected or jeopardized by a judgment rendered between the parties.\\\" (Code Civ. Proc., \\u00a7 389, 1st par.; see also: Bank of California v. Superior Court (1940) 16 Cal.2d 516, 521 [106 P.2d 879]; Bowles v. Superior Court (1955) 44 Cal.2d 574, 583 [283 P.2d 704].)\\nIn this connection, it is of interest to note that plaintiffs argued in the court below that California Federal was not an indispensable party because no deficiency judgment could be obtained by that lender against plaintiffs since the trust deed in favor of California Federal was a purchase money trust deed. (Code Civ. Proc., \\u00a7 580b.)\\nDefendants also complain: \\\"Finding 4 and Conclusion of Law 5 stating that California Federal Savings & Loan did not become involved in the production, control and supervision of the construction of the entire housing development known as Ondulando Highlands [are] completely unnecessary to any matter or issue raised in the case or decided in the case.\\\" We construe the finding and conclusion of which the foregoing was a part as being only a finding that California Federal was not a necessary or indispensable party to this case and a conclusion that the judgment rendered herein shall not in any way affect California Federal's rights as holder of the note for $25,200 (original amount) secured by the trust deed of which it is the beneficiary. Anything beyond that is deemed surplusage. An unnecessary finding does not impair the sufficiency of findings made (Employers' Liab. Assur. Corp. v. Industrial Acc. Com. (1918) 177 Cal. 771, 111 [171 P. 935]), nor does the inclusion of matters that may be rejected as surplusage render defective a finding otherwise proper. (Canadian Indem. Co. v. Motors Ins. Corp. (1964) 224 Cal.App.2d 8, 17 [36 Cal.Rptr. 159]; Morris v. Turley (1928) 94 Cal.App. 691, 695 [271 P. 916].) Whether the court had jurisdiction to render a judgment of rescission in this case depended upon whether California Federal was an indispensable party. Finding 4 and conclusion 5 were at least pertinent to this issue. Although we disagree that California Federal was not a necessary party to the action, we find no error in the finding that it was not an indispensable party.\\nV.\\nFinally, defendants object to the following portion of the judgment entered by the trial court:\\n\\\"It Is Further Ordered, Adjudged and Decreed that the plaintiffs herein deposit into escrow with Title Insurance and Trust Company, Ventura, California, a grant deed naming all of the defendants herein as equal grantees over the real property which is the subject of this action and is more particularly described as follows:\\nLot 238, Tract 1435, as recorded in Book 35, Pages 76 through 91 of Maps, in the office of the County Recorder of Ventura County, California.\\nThis parcel of real property is commonly known as 1062 Via Cielito, County of Ventura, California.\\n\\\"The real property shall be conveyed by plaintiffs free and clear of all encumbrances save a first deed of trust designating California Federal Savings & Loan Association as the beneficiary thereon while taxes and insurance are to be prorated as of the date of close of escrow. Concurrently with such deposit by the plaintiffs herein, the defendants herein, and each of them, jointly and severally, are ordered and decreed to deposit into escrow at Title Insurance & Trust Company, Ventura, California, the sum. $24,252.44, to the credit of California Federal Savings & Loan Association, such sum being the amount which the first deed of trust held by California Federal Savings & Loan Association secures on the real property. Plaintiffs are to pay for the policy of Title Insurance and one-half (Vi ) of the normal escrow charges and the defendants herein are to pay for all recording costs and one-half (Vi) of the normal escrow charges. In the event that the defendants herein fail to deposit such sum into escrow as ordered, execution may issue in favor of the plaintiffs herein to obtain such sum and any funds collected in this fashion in excess of the $9,088.50 awarded directly to the plaintiffs herein (together with interest and $202.35 court costs), are to be turned over by the plaintiffs to California Federal Savings & Loan Association. It is further ordered that the escrow hereinbefore described shall close within sixty (60) days from and after the entry of this judgment.\\\"\\nIf the objectives of a rescission judgment can be accomplished by a quitclaim deed; such a deed would be preferable to a grant deed which carries certain warranties. (Civ. Code, \\u00a7 1113.) The result which the trial court sought to accomplish was to preserve California Federal's rights under the trust deed, but to have plaintiffs convey back a title otherwise unencumbered to Ondulando. While we perceive no objection per se to the use of a grant deed instead of a quitclaim deed under these circumstances, care should be exercised so that plaintiffs will not be saddled with unnecessary warranties on their part. However, we do not see why an escrow is necessary if the requisite action by the respective parties to restore plaintiffs to their status quo ante can be effected under the direct supervision of the court. Since the vendor was Ondulando, we likewise see no reason why defendants other than Ondulando should be named as grantees in the deed which plaintiffs are to execute and deliver.\\nDefendants complain that there is no evidence that the unpaid balance on the purchase money note was $24,252.44 on the date of the judgment. The clerk's transcript reflects, however, that on the March 29, 1968, hearing on defendants' objections to the proposed findings and conclusions, \\\"Respective counsel stipulate^] that the amount of the balance due on [the] note is $24,300.00.\\\" Although the record does not reflect how the trial court arrived at the figure of $24,252.44 in its judgment dated and entered April 15, 1968, because there is no direct evidence of the rate of interest payable on the note, the discrepancy in the amount was one in defendants' favor. If the sole objection were to the amount, defendants' objections could be overlooked. However, their objections go further. They object to the portion of the judgment ordering them to jointly and severally pay the sum of $24,252.44, purporting to be the unpaid balance on the note secured by trust deed. It is true that the deed of trust carries a provision which permits the holder of the note to declare due and payable the entire unpaid balance of the principal and interest on the note in the event the real property securing the note is sold or transferred. It was probably the intention of the trial court to protect the plaintiffs (vendees) in the event California Federal should choose to exercise this option. However, this portion of the judgment places California Federal in a better position than that to which they are entitled.\\nAs between plaintiffs and defendants, plaintiffs should be protected from any further liability stemming from their execution of the purchase money note and trust deed in favor of California Federal. However, this trust deed being a purchase money trust deed, California Federal cannot obtain any monetary deficiency judgment against the plaintiffs. (Code Civ. Proc., \\u00a7 580b.) The court could order defendant Ondulando to assume payments on the note so as to make Ondulando the primary debtor as between it and the plaintiffs (Everts v. Matteson (1942) 21 Cal.2d 437, 447 [132 P.2d 476]). But it is also the law that \\\"a person buying property that is encumbered by a prior purchase money security device retains the 580b protection of the original mortgagor or trustor notwithstanding an express assumption of the indebtedness\\\" (Jackson v. Taylor (1969) 272 Cal.App.2d 1, 5 [76 Cal.Rptr. 891]). So far as California Federal's rights are based on the note and trust deed, it can look only to the property and not to any personal deficiency judgment. For further protection of the plaintiffs, however, we see no obstacle to the court's ordering all defendants, jointly and severally, to hold plaintiffs free, clear, and harmless of any demands or claims by California Federal based on the note and trust deed. (Civ. Code, \\u00a7 1692.)\\nIf the value of the real property is not what California Federal thought it to be because of any wrongful act on the part of defendants or any of them, then its relief in this respect is a matter for California Federal to enforce against the defendants directly. (See American Sav. & Loan Assn. v. Leeds (1968) 68 Cal.2d 611 [68 Cal.Rptr. 453, 440 P.2d 933].) Con sequently, any judgment requiring the defendants or any of them to pay up the complete unpaid balance of principal and interest on the note is not proper in this action.\\nWe see no impropriety in ordering defendants, jointly and severally, to reimburse plaintiffs for the $4,800 down payment, closing costs of $467.05, the $4,288.50 representing the incidental consequential damages, and the $196 monthly payments made on the note by plaintiffs as the result of defendants' misrepresentations. True, the benefit of the down payment inured only to the vendor Ondulando and the monthly $196 payments made went to reduce the lien against the property; however, a joint and several judgment against all defendants would force the defendants other than Ondulando to assure payment of this monetary portion of the judgment in the event Ondulando fails to pay it. Otherwise, plaintiffs would not be made whole.\\nThe objective of the judgment is, of course, to effect a restoration of the plaintiffs to their status quo ante within the limits possible without disturbing the rights of California Federal as holders of the note and trust deed on the real property involved. In an action predicated on fraud, the fact that the parties cannot be restored to the exact status quo ante will not prevent a court of equity from granting rescission, especially in the light of section 1692 of the Civil Code. Exercising its equitable powers, the court can adjust the equities of the parties and grant such relief as will achieve substantial justice under the circumstances of the case presented to it. (Civ. Code, \\u00a7 1692; Farina v. Bevilacqua (1961) 192 Cal.App.2d 681, 685 [13 Cal.Rptr. 791]; Lobdell v. Miller (1952) 114 Cal.App.2d 328, 344 [250 P.2d 357]; Arthur v. Graham (1923) 64 Cal.App. 608, 612 [222 P. 371].)\\nVI.\\nThe judgment is reversed with directions to the trial court to take only such action as is necessary (including the taking of additional evidence) to modify its findings, conclusions and judgment to conform with the views set forth in the opinion above; each party to bear its own costs on appeal.\\nKaus, P. J., and Stephens, J., concurred.\\nA petition for a rehearing was denied April 2, 1970, and the following opinion was then rendered:\\nThe name appears variously as Kolhass, Kolhaas, and Kolhaus in the record, but it appears that only one and the same individual is intended.\\nThe only finding is: \\\"[S]ince February 17, 1965, plaintiffs have made each and every monthly installment of $196.00 to California Federal Savings & Loan Association. . . .\\\"\\nIn the exercise of equitable powers, the court would be justified in ordering all defendants jointly and severally liable to keep plaintiffs free, clear, and harmless from any demands from California Federal on the note which they executed. (See discussion under V below.)\\nNeither the note nor a beneficiary statement was put in evidence.\\n\\\"In the event of sale or transfer of all or any portion of the real property covered by this Deed of Trust, the entire balance of the principal and interest secured hereby shall, at the option of the holder hereof, become immediately due and payable. If the option is not exercised, a reasonable transfer fee shall be paid. . . .\\\"\\nIn fact, counsel informed the court at time of 'oral argument that California Federal does have such a suit pending against the vendors at the present time.\\nThe trial court found that the \\\"reasonable rental value of the property during the period of its use and occupancy by the plaintiffs which might be due and owing to the defendants herein is offset by interest on the $9,088.50 to which the plaintiffs would be entitled.\\\" Objection to this finding was made in the trial court, for ambiguity, but was not raised in this appeal. Were the $196 monthly payments applied to offset rental value? The record does not enlighten us.\"}"
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+"{\"id\": \"4386723\", \"name\": \"ISAAC GOLDTREE et al., Respondents, v. WILLIAM THOMPSON et al., Appellants\", \"name_abbreviation\": \"Goldtree v. Thompson\", \"decision_date\": \"1889-07-05\", \"docket_number\": \"No. 11749\", \"first_page\": \"613\", \"last_page\": \"625\", \"citations\": \"79 Cal. 613\", \"volume\": \"79\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T18:41:56.504179+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ISAAC GOLDTREE et al., Respondents, v. WILLIAM THOMPSON et al., Appellants.\", \"head_matter\": \"No. 11749.\\nIn Bank. \\u2014\\nJuly 5, 1889.]\\nISAAC GOLDTREE et al., Respondents, v. WILLIAM THOMPSON et al., Appellants.\\nWill\\u2014Trust \\u2014 Construction\\u2014Devise-of Income\\u2014Residuary Estate. Where a will devises the testator\\u2019s estate in trust to be invested, and to pay the income to certain persons named in certain proportions during their lives, and to their surviving husbands or widows until remarriage, and after that event, the same proportions in trust in equal shares for their children by the first marriage who shall attain the age of twenty-one years or marry, and during the minority of any legatee, to apply the income of their respective shares toward his or her support or advancement in the world, the life devisees take only the income, and no part of the corpus of the residuary estate, but the corpus of the trust property will pass to the children, to be paid over to them in the proportions specified when they arrive at majority or marry, there being no provision for a continuance of the trust thereafter.\\nId.\\u2014Perpetuity \\u2014 Suspension of Power of Alienation \\u2014 Accumulations\\u2014 Interest of After-born Child.\\u2014Such will does not create a perpetuity, or unlawfully suspend the power of alienation, since all the persons beneficially interested in the will were living at the death of the testator (save one child, who died a minor and unmarried), and the accumulations were lawful, being only for the benefit of minors, to end with . their minority or marriage. Accumulations of income on an invested fund are not forbidden because they tend to a perpetuity. A child born after the death of the testator, who is specified as one of the legatees, having come into existence during the life of its father, one of the lives in being at the creation of the interest, would take an interest under the will vested in right when born, and in possession contingent on attaining majority or marriage, within twenty-one years after its father\\u2019s death, which event would not render the interest devised void.\\nId. \\u2014 Validity of Trust. \\u2014 A devise of the residue of the personal estate of a testator to certain trustees in trust to be invested, and to divide the accumulations of income thereof in. certain proportion to certain persons named during life, and to the surviving husband or widow of each until remarriage, and to their children during minority or until marriage, and to pay to such children the residuum of the estate in certain proportions, when attaining age or marrying, creates a valid trust if accepted by the trustees, under the provisions of sections 2221 and 2222 of the Civil Code.\\nAppeal from a judgment of the Superior Court of San Luis Obispo County.\\nThe facts are stated in the opinion of the court.\\nGraves, Turner & Graves, for Appellants.\\nThe will is void because by possibility suspending the absolute power of alienation beyond lives in being. (Civ. Code, secs. 715,716,771; 2 Washburn on Real Property, 3d ed., 653; Gray on Perpetuities, secs. 200, 201, 214, 215; 1 Jarman on Wills, 5th ed., pp. 254, 266, 273, 288, 297; Estate of Hinckley, 58 Cal. 457; Williams\\u2019s Executor v. Williams, 73 Cal. 99; Hawley v. James, 16 Wend. 120; Gott v. Cook, 7 Paige, 540; Boynton v. Hoyt, 1 Denio, 53; IvaneY. Gott, 24 Wend. 641; 35 Am. Dec. 641; Jennings v. Jennings, 7 N. Y. 547; Amory v. Lord, 9 N. Y. 415; Thompson v. Carmichael, 1 Sand. 387; Wells v. Wells, 88 17. Y. 331.) Posthumous children are included in a devise to children, when the distribution of funds is postponed or there is an intervening estate. (Jenkins v. Freyer, 4 Paige, 46; Hannan v. Osborn, 4 Paige, 336; Myers v. Myers, 2 McCord\\u2019s Ch. 256; 16 Am. Dec. 648; Lorillard v. Coster, 5 Paige, 185; FosdicJc v. Fosdick, 6 Allen, 41; Biggs v. McCarthy, 86 Ind. 352; 44 Am. Rep. 320; 2 Williams on Executors, Perkins\\u2019s ed., 1171, and n\\u00f3te.) There is no devise of the residuum, there being only clear and unmistakable terms of devise of the income and accumulations of the residuum. (Peterson v. Ellis, 11 Wend. 298; Reed v. Head, 6 Allen, 174; Wells v. Wells, 88 1ST. Y. 330; Bentley v. Kaufman, 5 Rep. 406.)\\nJ. M. Wilcoxon, and W. H. Spencer, for the trustees, respondents, also insisted that the will creates a perpetuity.\\nWilliam SMpsey, for the minors, respondents, insisted to the contrary; citing Civ. Code, secs. 1387, 1339,1341, and Jarman on Wills, p. 160. He also cited the cases referred to in the opinion, in support of the proposition that the bequest to the minors carried with it the corpus of the estate.\", \"word_count\": \"4370\", \"char_count\": \"24554\", \"text\": \"Thornton, J.\\n\\u2014This action was brought by the plaintiffs as trustees appointed by the will of Jonathan Thompson to obtain for their direction a construction of certain clauses in it. The property had been distributed to the trustees by a decree of the proper court, and they apply to this court for the purpose above stated. The legatees and devisees under the will are made parties to the action, and all desire construction of the clauses asked for.\\nThe clauses of the will referred to relate to the disposition of the residuary estate, which is done by the following words:\\u2014\\n\\\"The residue of my personal estate (subject to the payment of my just debts, funeral and testamentary expenses) I give to my said trustees upon trust to invest the same (after converting such parts thereof into money that require conversion) and all accumulations thereof as hereinafter named, and divide and pay the income thereof as it becomes due and received in manner following; namely, as to one fourth part thereof, to my niece, Jane Allison, during her life, and after her death, then in trust for her children, in equal shares (if more than one), who shall attain twenty-one years of age or marry; as to one other fourth part thereof, to my niece, Margaret Chappelhow, during her life, and after her decease, then to her husband, John Chappelhow (if he be living), during such time as he shall remain a bachelor, and after that event, then in trust for her child or children, in equal shares (if more than one), who shall attain twenty-one years of age or marry; as to one other fourth part thereof, to my nephew, James Thompson (now in California), during his life, and after his decease, then to his present wife (if she be then living), during such time as she shall remain his widow, and after that event, then in trust for his child or children by her, in equal shares (if more than one), who shall attain the age of twenty-one years or marry; and as to the remaining fourth part thereof, to my aforesaid nephew, John Thompson, during his life, and after his decease, then to his present wife (if she be then living) during her widowhood, and after that event, then in trust for his child or children by her, in equal shares (if more than one), who shall twenty-one years of age or marry.\\\"\\nJane Allison and Margaret Chappelhow, the devisees named in the will, are the nieces of the testator, and the other devisees named, James Thompson and John Thompson, were his nephews. They were all living at the death of the testator, as were the children, except one born subsequently, mentioned hereinafter.\\nThere is no doubt that one fourth of the income derived from the residuary estate is to be paid to Jane Allison during her life, and a like proportion each to Margaret Chappelhow, James Thompson, and John Thompson during their several lives, and after their deaths, to the surviving husbands of Jane Allison and Margaret Chappelhow, and to the surviving widows of James and John Thompson during the period mentioned in the will. That is to say, it is clear that the income only, in the proportions mentioned, is to be paid to the surviving husbands and widows of the nephews and nieces above named during the periods of their widowerhood or widowhood, and they get no portion of the corpus of the residuary estate.\\nThe question debated and to be decided is, whether the children of the parties mentioned above and referred to in the will take the corpus of the property left in trust, or the revenue only.\\nWe are of opinion that the direction of the testator was, that the corpus of the trust property was to pass to the children above named, and to be paid over to them in the proportions above stated, when they attain the age of twenty-one years or marry. This, in our judgment, is what is declared in the will. It is evident that the testator intended to distribute by will all the residuary estate. The whole residuum is bequeathed to the trustees in trust,\\u20141. To pay over the income to the parties mentioned during the periods prescribed; and whenever such proportions cease, then, 2. \\\"In trust (not to pay over) for his or her children,\\\" that is, that the residuum in the proportions aforesaid is to be held in trust for the children referred to. The bequests to children are expressed in precise terms, and have the same meaning, which is indicated above. We think this clearly appears from the clause in the will in which he empowers the trustees \\\" during the minority of any legatee to apply the income of their respective shares toward his or her support or advancement in the world.\\\"\\nThe respective shares here must mean shares of the residuary estate itself. If the respective shares only meant their respective shares in the income, then the authority conferred on the trustees would be to apply the revenue derived from their shares of the income toward his or her support and advancement. This would be too small a sum to be of any advantage as an advancement in the world. We cannot think that such could be the meaning or intent of the testator. - This authority was intended to empower the trustees, after the death of the nephews and nieces mentioned in the will, and the contingency had occurred when they no longer had to pay over the income, or any portion of it, to a sur viving husband or wife of the nephews or nieces, to use the income for the support or advancement of the children named during their minority, or until they had married, having regard in each case to the proportions in which the property was bequeathed,\\u2014that is, one fourth of the residuary estate to the children, respectively, of each of the nephews and nieces deceased.\\nThis conclusion is sustained by the fact, patent on the face of the will, that no provision is made for the continuance of the trust, after the children mentioned marry or attain twenty-one years of age. We think the provision in the will for compensation of fifteen pounds per annum to each trustee during the continuance of the trust named in the will clearly shows that the intent of the testator was that the trust should last no longer than the period above indicated by the will, and that their continuance should not be for an undefined period. The trust then coming to an end, the corpus of the residuary estate is to be held for the cestui que trusten in the proportions above referred to.\\nThe above is in accordance with decided cases. See, on this subject, the following cases cited in brief on behalf of the minor respondents: Earl v. Grim, 1 Johns. Ch. 494; Reed v. Reed, 9 Mass. 272; Paterson v. Ellis, 11 Wend. 298, 559; Fox v. Phelps, 17 Wend. 393,402; Earle's Appeal, 75 Pa. St. 119; Ogden's Appeal, 20 Pa. St. 501; Anderson v. Gebble, 1 Ashm. 136; Anderson v. Boyd, 5 Greenl. 119; 4 Kent's Com. 563; Parks v. Parks, 9 Paige, 107; Smith v. Post, 2 Edw. Ch. 523; Cook v. Husband, 11 Md. 492; Craig v. Craig, 3 Barb. Ch. 76.\\nA point is made that these trusts as to the children create a perpetuity, and are in violation of the statute, and are void. It is not clearly pointed out by counsel how this result is brought about.\\n\\\"The rule against perpetuities,\\\" says Mr. Perry in his work on trusts, \\\"has been gradually established by judicial decisions, and affords a most notable instance of\\nthe nice adoption of the principles of common law to the decision of a question which requires at once a due regard for the rights of persons and property and a careful consideration of those larger principles of public policy so essential to the welfare of communities and states; for public policy is opposed to perpetual settlement of property in families in such manner that it is forever inalienable, or inalienable so long as there may be a person to take answering the designation of some testator who may have died generations before.\\\"\\nThe same writer proceeds to point out the various \\u2022 steps or stages of adjudication by which the rule was settled. They are thus stated: \\\"The first stand of the judges was to allow only those limitations which would take effect at the end of one life from the death of the testator. This was afterward modified to include two or more lives in being, and running at the same time, ' or where the candles are all burning at once'; for it is plain that such a space of time is only one life in being,\\u2014that of the longest liver. The next step was much debated; but it was finally settled that an executory devise might be made to vest at the end of lives in being and twenty-one years after, to allow for infancy of the next taker, who by reason of infancy could not alienate the estate. The statute of 10 & 11 Wm. III., c. 16, having provided that children en ventre sa mere born after their father's death should for the purposes of the limitations of estates be deemed to have been born in his lifetime, a further extension of nine or ten months was allowed for the period of gestation. The next step was to allow a period of nine months for gestation at the beginning of the term, as the life in being during which the term would run might be that of a child en ventre sa mere.....It was finally determined that twenty-one years might be allowed as a term in gross, Avithout reference to the infancy of any person, but that the period of nine months for gestation should be allowed in cases only Avhere the gestation had commenced of some person who, if born, would take an interest in the estate. By such steps, by imperceptible degrees, and after two centuries of doubt and litigation, and unaided by legislation, the judges framed and completed the great rule against perpetuities. Thus all future estates which arise by will of executory devise, conditional limitation, or shifting and springing uses, must vest within a life or lives in being at the death of the testator and twenty-one years; and in case the person in whom the estate or interest should then vest is en ventre sa mere, nine months more will be allowed; and all estates created as aforesaid, and so limited that they may not vest within that time, are void.\\\" (Perry on. Trusts, secs. 379, 380.)\\nThis rule, styled by Mr. Perry \\\" the great rule \\\" against perpetuities, was worked out on the principles of the common law. That system did not permit a grant of property in fee-simple to be made with an entire restraint of alienation. The right of alienation was incident to the estate, and the restriction was void as repugnant to the code. (1 Washburn on Peal Property, 85.) But a restriction for a reasonable time was held valid (Id.), and the time fixed as a reasonable time was as stated above. The same rule was established by many cases as the common law in regard to estates so settled, the income to be invested whether for adults or infants.\\nOne of the most remarkable of these cases was that presented in the will of Peter Thellusson, who died in 1797. This came before the court of chancery in 1798.\\nA brief reference will be made to the case in which the trusts of this will were presented for judicial consideration (in Thellusson v. Woodford, 4 Ves. 227, and 11 Ves. 112).\\nIn referring to the case (Thellusson v. Woodford), Chancellor Kent thus states it, and what was held in relation to it: \\u2014\\n\\\" The d\\u00e9vise in that case was, that all the real and personal estate of the testator should be converted into one common fund, to be vested in trustees in fee for the rents and profits to accumulate during all the lives of all the testator's sons, and of all the testator's grandsons born in his lifetime and living at his death, or then in ventre sa mere, and their issue, to receive the profits during all that time in trust, and to invest them from time to time in other real estates, and thus be adding income to principal. After the death of the last survivor of all the enumerated descendants, the estates were to be conveyed to those branches of the respective families of the sons who, at the end of the period, should answer the description of the heirs male of the respective bodies of the sons. The testator's object was to protract the power of alienation by taking the lives of persons who were mere nominees without any corresponding interest. The trusts created by the Thellusson will were held valid by the court of chancery, and the decree was affirmed in the house of lords. The property was thus tied up from alienation and from enjoyment for three generations; and when the period of distribution shall arrive, the accumulated increase of the estate will be enormous.\\\" (4 Kent's Com. 285.)\\nIn a note to the text of Kent it is stated: \\\"The testator died in 1797. He left three sons and three daughters, and half a million sterling, on an accumulating fund. If the limitation should extend to upwards of one hundred years, as it may, the property will have amounted to upwards of one hundred millions sterling.\\\"\\nThe limitations of this will brought about the enactment of the statute 39 and 40 George III., chapter 98, usually known as the Thellusson act. On this act the statute of Mew York (1 Rev. Stats. 773) is founded, and the statute of California, hereafter to be referred to, followed the Mew York act.\\nAll of those acts allow accumulations of the income of property for the benefit of infants during their minority. (See 4 Kent's Com. 286, 287.)\\nThe legislature of this state has embodied the rule as stated in the extract above given from Perry on Trusts, as will be seen by an examination of the provisions of the code in reference to future interests.\\nThe absolute power of alienation cannot be suspended by any limitation or condition whatever for a longer period than during the continuance of the lives of persons in being at the creation of the limitation or condition, except in a single case mentioned in section 772 of the Civil Code, which is not material in this case. (Civ. Code, sec. 715.)\\nThe children here take a future interest, defined to be an interest which entitles the owner to the possession of the property only at a future period. (Civ. Code, sec. 690.) This interest is created by will, and in such case the death of the testator is to be deemed or taken as the time of the creation of the interest. (Civ. Code, sec. 749.) As a future interest, it is declared by section 716 of the Civil Code that it is void in its creation if by any possibility it may suspend the absolute power of alienation for a longer period than is prescribed in this chapter, i. e., for a longer time than during the continuance of the lives of persons in being at the creation of such interest. This power of alienation is suspended when there are no persons in being by whom an absolute interest in possession can be conveyed. (Civ. Code, sec. 716.)\\nThe subject of the trust herein is the residuum of the personal estate. \\\" The residuum of my personal estate\\\" is given by the will in trust to the trustees. If there is any violation of the statute, it must be in regard to the personal estate and the accumulations thereof. The power of alienation is not suspended for a period beyond that allowed by statute. All the persons beneficially interested in the will were living at the death of the tes tator. No reference is made here to the child of John Thompson born after the death of the testator, and who died a minor and unmarried.\\nAs to such accumulations, the code, after providing that \\\" dispositions of the income of property to accrue and to be received at any time subsequent to the execution of the instrument creating such disposition\\\" are governed by the rules prescribed in title 2, part 1, of division 2 of the Civil Code (Civ. Code, sec. 722), provides that accumulations of the income are lawful and allowed by the code which are in accordance with section 724 of the Civil Code, which is as follows:\\u2014\\n\\\"An accumulation of the income of property for the benefit of one or more persons may be directed by any will or transfer in writing sufficient to pass the property out of which the fund is to arise, as follows:\\u2014\\n\\\" 1. If such accumulation is directed to commence on the creation of the interest out of which the income is to arise, it must be made for the benefit of one or more minors then in being, and terminate at the expiration of their minority; or,\\n\\\"2. If such accumulation is directed to commence at any time subsequent to the creation of the interest out of which the income is to arise, it must commence within the time in this title permitted for the vesting of future interests, and during the minority of the beneficiaries, and terminate at the expiration of such minority.\\\"\\nThe accumulations are only for the benefit of minors who are in being at the death of the testator. One of the children of Margaret Chappelhow and John Chappelhow, viz., Esther Hannah, is an infant. Two of the children of Jane Allison and Giblum Allison are minors. John Thompson's children are minors. James Thompson had no children. The other children have reached their majority. If on the death of the mother or father of the children, and the death or marrying of the surviving wife left a widow, or the surviving husband left a widower, each one of the children mentioned who is married or of age becomes entitled to his or her share. If there is any income of such share received afterward, it goes to such married or adult child as accrued on his share which has already vested in possession. It is clear from the will that all the income is to be paid over, and not accumulated at all during the lives of the nephews and nieces, and during the lives of the surviving husbands and wives referred to in the will as long as they remain unmarried. After the foregoing events have occurred, the shares of the corpus of the fund have to be paid over to the married or adult children of the parents mentioned in the will, with the income accruing on their shares as a part of the share, such income, if any, having accrued on the share of such adult or minor child.\\nThe only accumulation is then for the minors, and such accumulation ends with their minority or marrying. When majority is reached, or marriage occurs before, each share vests, with its accumulation of the income, in such minor children.\\nIt may be remarked that the accumulations of income on an invested fund are not forbidden because they tend to a perpetuity. That such accumulations were for adults did not create or tend to a perpetuity was held in Thellusson v. Woodford, above cited. (See remarks of Lord Elden on page 14 of 11 Vesey.) The prohibition of accumulations longer than the minority of the takers of the interest was made to prevent an unfeeling and selfish testator' from so devising his estate as to make persons rich in the distant future, to the detriment of those during the period of limitation who had better claims on his bounty. The latter had to live in poverty' in order that their children or grandchildren might be made rich at a distant future day.\\nAs to the after-born child of John Thompson, she-came into existence during her father's life, one of the lives in being at the creation of the interest. She would take an interest under the will, as she was one of the class mentioned in it, to wit, the children of John Thompson (Civ. Code, sec. 1337), vested in right when she was born, and in possession contingent on her attaining the required age or marrying. If this interest could ever vest in possession, it must have vested within twenty-one years after her father's death. Such an event did not render the interest devised void.\\nNo question is made as to the validity of the trust created by the will as a trust. The only objection made to it has been considered above. But clearly such a trust is valid. (See Civ. Code, secs. 2221, 2222.) The trust is definite in every respect required by statute (see sections above cited), and the trustees here have accepted the trust.\\nThe foregoing disposes of all the questions raised on which the judgment of this court is sought.\\nWe find no error in the judgment of the court below, and it is affirmed.\\nSo ordered.\\nMcFarland, J., Works, J., Paterson, J., and Sharp-stein, J., concurred.\"}"
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+"{\"id\": \"4386997\", \"name\": \"MARTHA MITCHELL et al., Petitioners, v. SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent\", \"name_abbreviation\": \"Mitchell v. Superior Court\", \"decision_date\": \"1958-10-01\", \"docket_number\": \"S. F. No. 19704\", \"first_page\": \"827\", \"last_page\": \"834\", \"citations\": \"50 Cal. 2d 827\", \"volume\": \"50\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T20:39:32.946652+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MARTHA MITCHELL et al., Petitioners, v. SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent.\", \"head_matter\": \"[S. F. No. 19704.\\nIn Bank.\\nOct. 1, 1958.]\\nMARTHA MITCHELL et al., Petitioners, v. SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent.\\nArthur D. Klang for Petitioners.\\nEdmund G. Brown, Attorney General, Clarence A. Linn, Assistant Attorney General, William M. Bennett and Arlo E. Smith, Deputy Attorneys General, for Respondent.\", \"word_count\": \"2425\", \"char_count\": \"14679\", \"text\": \"TRAYNOR, J.\\nInformations charged defendants with possession of heroin, two sales of heroin and maintenance of a place for the sale of narcotics in violation of Health and Safety Code, sections 11500 and 11557. Their motions to set aside the informations on the ground that they had not been legally committed by a magistrate (Pen. Code, \\u00a7 995) were denied and they now seek a writ of prohibition to prevent their trial.\\nEvidence at the preliminary hearing showed that police officers received information from two informers that defendants were selling narcotics in their apartment. The officers searched the two informers and removed all articles from their clothing. Each of the informers was given $20 in bills dusted with fluorescent powder. The serial numbers of the bills were recorded. The officers escorted the informers to defendants' apartment. The informers entered the apartment separately and in a few minutes returned separately. They were then searched. The bills were gone and each informer had a bindle of heroin. The officers waited in front of the apartment door for about 10 or 15 minutes. Defendant Mitchell opened the door and was immediately placed under arrest. She dropped a package of heroin to the floor. The officers arrested defendant Flynn in the bedroom and found four bindles of heroin on his person. The officers found the bills given to one informer behind one of the dresser drawers, but they did not find the bills given to the other informer. There was fluorescent powder on both of Mitchell's hands and on Flynn's finger tips and shirt. On cross-examination the magistrate sustained objections to defendants' questions seeking to ascertain the names of the informers.\\nWe have concluded that it was error to deny defendants disclosure of the names of the two informers at the preliminary hearing on their cross-examination of the officer who testified to the participation of the informers but that prohibition does not lie to restrain the trial of defendants.\\nA defendant is entitled at his trial to ascertain on cross-examination the name of an informer who is a material witness on the issue of guilt. (People v. McShann, ante, p. 802 [330 P.2d 33]; People v. Lawrence, 149 Cal.App.2d 435, 450-451 [308 P.2d 821].) The reasons that require disclosure at the trial also require disclosure at the preliminary hearing, for the defendant has the right at such hearing to cross-examine the prosecution's witnesses (Pen. Code, \\u00a7 865) and to produce witnesses in his own behalf (Pen. Code, \\u00a7 864, 866). The exercise of these rights at the preliminary hearing may enable the defendant to show that there is no reasonable cause to commit him for trial and thus to avoid the degradation and expense of a criminal trial.\\nProhibition does not lie to review rulings of the magistrate on the admissibility of evidence at the preliminary hearing unless the commitment is based entirely on incompetent evidence. (Rogers v. Superior Court, 46 Cal.2d 3, 7-8 [291 P.2d 929].) Defendants do not contend that as a result of the magistrate's error there is no competent evidence to support a finding of reasonable cause to commit them for trial. (Cf. Priestly v. Superior Court, ante, p. 812 [330 P.2d 39].) It is contended, however, that denial of the right of cross-examination at the preliminary hearing is not only a ruling on the admissibility of evidence but the denial of a constitutional right. It is unnecessary to resolve this contention, for there was not such an interference with the right of cross-examination in this case as to justify a writ of prohibition. It does not appear that disclosure of the names of the informers was demanded to enable defendants to discredit the prosecution's evidence at the preliminary hearing or that they wished to use the informers as witnesses at that hearing. Indeed, defendants' brief indicates otherwise: \\\"The defendants did not present a defense other than cross-examination in the preliminary hearing. They were not required so to do and this Honorable Court is aware that not only is it rarely done, but would be a foolhardy thing to do.\\\" The value to defendants of disclosure is that it might enable them to obtain information useful in their defense at the trial. It cannot be presumed that the superior' court will erroneously deny disclosure at the trial or fail to grant a continuance if it is necessary to enable defendants to locate and interview the informers in the preparation of their defense. Although the delay incident to such a continuance would have been obviated had the magistrate ruled correctly, his erroneous ruling on the admissibility of evidence does not raise a jurisdictional issue. (Rogers v. Superior Court, supra, 46 Cal.2d at 6-7.) Since there was competent evidence to justify committing defendants and disclosure of the names of the informers can be obtained at the trial, defendants were not prejudiced by the error or deprived of any substantial right. (See Pen. Code, \\u00a7 1404.)\\nThe alternative writ is discharged and the peremptory writ is denied.\\nGibson, C. J., and Sehauer, J., concurred.\"}"
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diff --git a/cal/4387905.json b/cal/4387905.json
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+"{\"id\": \"4387905\", \"name\": \"WILLIAM UNDERWOOD, Appellant, v. CATHERINE UNDERWOOD, Respondent\", \"name_abbreviation\": \"Underwood v. Underwood\", \"decision_date\": \"1891-01-28\", \"docket_number\": \"No. 13688\", \"first_page\": \"523\", \"last_page\": \"525\", \"citations\": \"87 Cal. 523\", \"volume\": \"87\", \"reporter\": \"California Reports\", \"court\": \"Supreme Court of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T23:28:09.693882+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WILLIAM UNDERWOOD, Appellant, v. CATHERINE UNDERWOOD, Respondent.\", \"head_matter\": \"[No. 13688.\\nDepartment One.\\u2014\\nJanuary 28, 1891.]\\nWILLIAM UNDERWOOD, Appellant, v. CATHERINE UNDERWOOD, Respondent.\\nSetting Aside Judgment \\u2014 Inadvertence and Mistake \\u2014 Discretion__ The action of the trial court in setting aside a judgment upon a showing of inadvertence and mistake will not be disturbed, if the appellate court cannot say, under all the circumstances, that the court below abused its discretion, even though the showing may he a weak one.\\nId.\\u2014Judgment Quieting Title \\u2014 Disclaimer \\u2014 Inadvertence and Mistake of Attorney \\u2014 Lis Pendens \\u2014 Defense by Grantees of Defendant. \\u2014 An order setting aside a judgment quieting the title of the plaintiff to city lots to which the defendant disclaimed title, and allowing the grantees of the defendant to come in and defend, will not be disturbed, if it is shown on the part of the defendant and his grantees that the disclaimer was made through an inadvertence and mistake of fact of the defendant\\u2019s attorney in supposing that the property had been conveyed by the defendant before the commencement of the suit, whereas in fact the conveyances were made pending the suit, and after a notice of as pendens had been filed by the plaintiff.\\nAppeal from an order of the Superior Court of Los Angeles County setting aside a judgment.\\nThe facts are stated in the opinion of the court.\\nHenry M. Smith, and Horace Bell, for Appellant.\\nC. C. Stephens, for Respondent.\", \"word_count\": \"862\", \"char_count\": \"5097\", \"text\": \"Paterson, J.\\nThis is an action to quiet title to several parcels of land situate in the city of Los Angeles. A notice of Us pendens was filed by plaintiff at the time the action was commenced. The defendant filed her verified answer, denying that plaintiff had any right, title, or interest in any of the lots described in the complaint. After this answer was filed, the defendant sold and conveyed to the respondents, John S. Underwood, Mary E. Regan, and Samuel A. Moore, all of the lots described in the complaint, except \\\" lot 13, in block A.\\\" Thereafter, the attorney of defendant having died, she employed another attorney, who, after being informed by her of all the facts, filed an amended and unverified answer, disclaiming on the part of the defendant any interest in any of the property described in the complaint, except said lot 13.\\nThe court found that defendant was the owner of said lot 13, in block A, and that plaintiff was the owner of the other lots in controversy, and judgment was entered accordingly on April 18, 1889. On July 22, 1889, the defendant moved the court to set aside the judgment, and for permission to amend her amended answer by striking out said disclaimer, on the ground that the amended answer containing the disclaimer bad been filed through inadvertence and mistake. In support of her application, she filed an affidavit, setting forih that upon the advice of her first attorn ej' she had sold the property (described in the disclaimer) to said Underwood, Regan, and Moore, in good faith, and for a valuable consideration; that upon the death of her attorney she had employed another counsel, and the latter, after being informed of all the facts, filed an amended answer containing the disclaimer, \\\"he believing and understanding. that said conveyances were made prior to the commencement of this action''; that \\\" said disclaimer was an inadvertence and a mistake of fact; that judgment was entered against her by reason of said mistake, and that she had no notice of the state of pleadings until July 10, 1889, when a writ of assistance was served on one of her grantees.\\\" Affidavits were filed by John S. Underwood and Mary E. Eegan, alleging that the facts set forth in defendant's affidavit were true, and asking that they might be allowed to come in and defend against the claim of plaintiff. The attorney who filed the amended answer made an affidavit showing that when he drew it he understood that the property described in the disclaimer had been conveyed by defendant before the suit was commenced.\\nA counter-affidavit was filed by Horace Bell, showing that he had taken a portion of the property described in the disclaimer from the plaintiff for a valuable consideration subsequent to the judgment, without notice of any transfer by defendant, and after a search of the record, which failed to disclose any conveyance from defendant, and after the attorney for defendant had informed him that he knew of nothing that would invalidate the conveyance.\\n>The court granted the motion to set aside the judgment, and from its order the plaintiff has appealed.\\nThe showing made on motion to set aside the judgment is a very weak one, but we are always unwilling to interfere with the decision of the court below in matters of this kind.\\nThe attorney for the defendant doubtless acted in good faith, and, as he supposed, for the best interest of his client, but under a mistake of fact as to the time w'lien defendant had parted with her interest in the lots. We cannot say, under all the circumstances, that the court below abused its discretion.\\nThe order appealed from is therefore affirmed.\\nGaroutte, J., and Harrison, J., concurred.\"}"
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+"{\"id\": \"4412370\", \"name\": \"THE PEOPLE, Respondent, v. JUAN T. ALANIZ, Appellant\", \"name_abbreviation\": \"People v. Alaniz\", \"decision_date\": \"1957-03-29\", \"docket_number\": \"Crim. No. 5689\", \"first_page\": \"560\", \"last_page\": \"586\", \"citations\": \"149 Cal. App. 2d 560\", \"volume\": \"149\", \"reporter\": \"California Appellate Reports, Second Series\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T01:56:24.415075+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PEOPLE, Respondent, v. JUAN T. ALANIZ, Appellant.\", \"head_matter\": \"[Crim. No. 5689.\\nSecond Dist., Div. Three.\\nMar. 29, 1957.]\\nTHE PEOPLE, Respondent, v. JUAN T. ALANIZ, Appellant.\\nLouis Romero for Appellant.\\nEdmund G. Brown, Attorney General, and Norman H. Sokolow, Deputy Attorney General, for Respondent.\", \"word_count\": \"10558\", \"char_count\": \"61833\", \"text\": \"WOOD (Parker), J.\\nDefendant was charged with violation of section 11500 of the Health and Safety Code in that he unlawfully had heroin in his possession. He admitted allegations of the information that he had been convicted of two felonies (violations of said \\u00a7 11500). In a jury trial, he was convicted. He appeals from the judgment and the order denying his motion for a new trial.\\nAppellant contends that there was no probable cause for the arrest, and that the subsequent search and seizure were unlawful.\\nOfficer Smith testified that on January 20, 1956, about 7:55 p. m., he saw an automobile stop in front of 24102 Fries Avenue in Wilmington; at that time he and Officer DeLeon were in an automobile near that address, and he (Officer Smith) drove their automobile to the automobile which had stopped; Officer DeLeon got out of their automobile and went to the driver's side of the other automobile; Officer Smith also got out of the automobile, which he had been driving, and went to the driver's side of the other automobile, arriving there about 15 or 20 seconds after Officer DeLeon arrived there; defendant was in the driver's seat of the other automobile; two boys, whose ages were 14 and 11 were also in the other automobile. Officer Smith testified further that he arrested the defendant; and that Officer DeLeon arrested the defendant.\\nAfter the above testimony had been given, counsel for defendant requested the court to hear evidence out of the presence of the jury with respect to probable cause for the arrest. Thereupon, out of the presence of the jury, Officer Smith testified that about 10 days before the arrest an informer (referred to herein as informer A) gave him information as to a location where narcotics were being distributed; the information included directions regarding streets to travel in order to get to the location\\u2014no address was given; he had known the informer more than a year, and information he had previously received from him had been reliable. He testified further that on January 19 another informer (referred to as informer B) stated that narcotics were being dispensed \\\"from this location\\\" (the same location given by informer A), that the car was described as a 2-door black Chevrolet which was \\\"lowered in the back,\\\" that the fellow was described as a Mexican with a mustache, and his name was Johnny; he (officer) had known the informer more than a year, and information which he had previously received from him had been reliable. He testified further than on January 20, about 6 p. m., another informer (referred to as C) called him by telephone and gave him \\\"the block where the house was located and stated it was about in the center of the block\\\"; the informer also said that two persons were involved and the name of one of them was Zacci, and the car was a 1950 black Chevrolet; he (officer) knew the informer, recognized his voice by telephone, and had previously received reliable information from him. He testified further than on January 20, about 6 :30 p. m., another informer (referred to as D) told him and Officer DeLeon that narcotics were being dispensed \\\"from this place,\\\" that he knew the exact house, and that the car involved was a black Chevrolet; he (officer) had known the informer more than a year.\\nOfficer Smith testified further than on January 20, about 1 p. m., he went by the location, concerning which he had previously received information, and he saw a black Chevrolet in front of the house. He testified further that on January 20, just prior to the arrest, he saw a Chevrolet, which he had previously seen in front of the house, make a U-turn and park in front of the house; the man who was driving the Chevrolet fitted the description that had been given previously ; the officers went to the Chevrolet within a few seconds after it stopped; the man therein said that his name was Johnny; he (officer) turned his flashlight on the man's arm and noticed that he had numerous scab formations over a vein, and some of them appeared to be fresh; in response to questions, the man said that he was not a user but he had been; he (officer) turned the flashlight into the car, through the open door, and observed a bindle on the floor board, which bindle appeared to be a bindle of heroin; the conversation with defendant might have taken 15 or 20 seconds; Officer Smith asked Officer DeLeon if he had defendant under arrest, and Officer DeLeon said \\\"Yes,\\\" and Officer Smith said, \\\"If you haven't he's under arrest now.\\\" He also testified that information given by the informers was confidential and that the public interest would suffer if he were to give the names of the informers.\\nAlso, out of the presence of the jury, Officer DeLeon testified that on January 20, about 6:30 p. m., he had a conversation with informer D, whom he had known about three years; after that conversation he and that informer went to the vicinity of 24102 Fries Avenue, and the informer pointed out the house at that address as the place where he had purchased narcotics; he also pointed out a 1949 black Chevrolet automobile which was then in front of the house; the informer went to the house, stayed about 10 minutes, and upon returning stated that narcotics were in the automobile which was then in front of the house; he (officer) communicated said information to Officer Smith; after the arrest of defendant, Officer DeLeon (witness) searched the house, with the permission of Mrs. Jiminez, who lived in the house; he found a needle, spoon, dropper and wet cotton, which were wrapped together and were in a linen cabinet in the bathroom; the son of Mrs. Jiminez was known as Zacei.\\nAlso, out of the presence of the jury, Mrs. Jiminez testified that she lived at 24102 Pries Avenue; her son Zaeci lived there also; on January 20, 1956, when there was a knock on the door, she told a girl to open the door; the person at the door said he was a police officer and he had to search her house; she told him that it was all right; defendant had been in her bathroom on that day.\\nThe court ruled to the effect that there was probable cause for the arrest and search.\\nThereupon, the trial proceeded in the presence of the jury. Officer Smith testified further, repeating the testimony he had given (out of the presence of the jury) regarding: the marks on defendant's arm; the statement of defendant that he had been a user; and the bindle which was on the floor board. He testified further that it had been raining prior to and soon after the arrest; that he found two packages on the ground near the Chevrolet; those packages were dry.\\nOfficer DeLeon testified that he participated in the arrest of defendant in front of 24102 Pries Avenue; he saw a small bindle on the floor of the Chevrolet, and he saw Officer Smith pick it up; he (witness) also saw two bindles in the street by the side of the Chevrolet, and he saw Officer Smith pick them up; he (witness) went into the house at said address and found the needle, spoon, dropper and cotton (Exhibit 3) in a linen cabinet in the bathroom; in response to questions, defendant said the \\\"outfit\\\" (Exhibit 3) was his, that he had put it in the house that morning (January 20), and he was using one and one-half \\\"caps\\\" of heroin a day.\\nThe three bindles or packages contained heroin.\\nMrs. Jiminez, called as a witness by defendant, testified that her son Seferino, who is known as Zaeci, lived at her house (24102 Pries Avenue) and he was there on said January 20; Juan or Johnny, the defendant, was at her house on January 20 and he went into the bathroom; he had taken Henry and Richard Medina, her grandchildren, for a ride. (They were in the Chevrolet when defendant was arrested.)\\nConcha Medina, called as a witness by defendant, testified that she is the mother of the boys Henry and Richard, and she is the daughter of Mrs. Jiminez ; on January 20 defendant had been at her house working on her automobile; about 7:20 p. m. of that day, defendant came to her house to take Henry to his grandmother Mrs. Jiminez, and to take Richard to his other grandmother.\\nDefendant testified that he owned the Chevrolet involved here; about 1:30 p. m. on the day of the arrest he drove a truck to Mrs. Jiminez's house; he had left his Chevrolet there the night previously, and he had gone in the truck to his home; soon after he arrived at Mrs. Jiminez's house, he and Zacci went in the Chevrolet to Concha Medina's house, where he (defendant) repaired her automobile; he and Zacci left her place about 6 p. m. and returned to Mrs. Jiminez's house, arriving there about 6 :15 p. m.; he (defendant) went into the bathroom at that house and washed oil off his hands; he was in the house about 15 minutes and during that time Zacci used the Chevrolet; when Zacci returned the Chevrolet, defendant drove it to Concha's house, got the two boys, and drove back to the place in front of Mrs. Jiminez's house where he was arrested; he did not know that a bindle was in the automobile or that the two packages were on the street; the first time he saw the bindles was when the officers called his attention to them; he did not know what was in the bindles; he told the officers that the bindles were not his; he did not take the spoon and \\\"outfit\\\" (Exhibit 3) into the house; he told Officer DeLeon that those things (Exhibit 3) were not his (defendant's); during the evening there had been intermittent light showers or drizzles, but at the time of the arrest the street was dry; the bindles which the officers found on the street were dry, and the street was also dry; there were scars on his (defendant's) arm which were caused by punctures when he used heroin years ago.\\nOfficer DeLeon, who had testified that he participated in the arrest, was called as a witness by defendant and he was asked: ' ' Officer DeLeon, about how soon after the defendant stopped the car in front of Mrs. Jiminez's place did you effect the arrest?\\\" He answered: \\\"I would say almost immediately.\\\"\\nZacci, called as a witness by defendant, testified that he did not use the Chevrolet about 6 :30 p. m on the day of the arrest, to go to the store.\\nAppellant contends, as above stated, that the arresting officers did not have probable cause for arresting him. He argues that the information given by the informers was not sufficient to constitute probable cause. In Trowbridge v. Superior Court, 144 Cal.App.2d 13 [300 P.2d 222], the arrest was made upon information furnished by an informer, whom the arresting officer knew and who had supplied the officer with reliable information on two or three occasions. It was held in that ease (p. 17) that the arrest was lawful. \\\"A valid arrest may be made solely by reason of information communicated by a reliable informant.\\\" People v. Montes, 146 Cal.App.2d 530, 532 [303 P.2d 1064]; People v. Penson, 148 Cal.App.2d 537, 539 [307 P.2d 24].) In People v. Boyles, 45 Cal.2d 652 [290 P.2d 535] at page 656, it was said that it is settled \\\"that reasonable cause to justify an arrest may consist of information obtained from others and is not limited to evidence that would be admissible at the trial on the issue of guilt.\\\" In the present case there were four informers, whom the arresting officers knew and who had previously supplied the officers with reliable information. The evidence was sufficient to show probable cause for the arrest. Also, the subsequent search of defendant and the seizure of the bindles were lawful.\\nAppellant also contends that the search of the house by Officer DeLeon was unlawful. The officers had information from the informers to the effect that narcotics were being distributed from the house. The officers had just arrested a person in front of the house and had found bindles which apparently contained heroin; and the person arrested appeared to fit the description of a person referred to, by one of the informers, as a person who dispensed narcotics from that location; and the person arrested appeared to be a user of narcotics. When the officer knocked on the door of the house, the door was opened. When the officer identified himself and said that he had to search the house, the lady who lived there told him that it was all right. The evidence was legally sufficient to prove that the search of the house was not unlawful.\\nAppellant contends further that the trial court abused its discretion in denying his motion that the witnesses, except the one testifying, be excluded from the courtroom. Such a motion is within the discretion of the trial court. (People v. Boyden, 116 Cal.App.2d 278, 283 [253 P.2d 773].) Apparently the motion pertained principally to the two police officers. When the motion was made, the deputy district attorney said that the two officers had testified at the preliminary hearing. It does not appear that there was an abuse of discretion.\\nAppellant also contends that he was denied due process of law because the trial court did not require the police officers to disclose the identity of the informers. Section 1881, subdivision 5, of the Code of Civil Procedure provides: \\\"A public officer can not be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure.\\\" Officer Smith testified that the information given by the informers was confidential and the public interest would suffer if the names of the informers were disclosed. In People v. Gonzales, 141 Cal.App. 2d 604 [297 P.2d 50], it was held (pp. 607-608) that, under the circumstances therein, the court did not err in refusing to allow the defendant to cross-examine the police officers as to the name of their informant. It was said in that case at page 608: \\\"The officer's information must have come from a reliable source and the officer must act in good faith in testifying that he had received his information from a reliable person, and such good faith must pass the scrutiny of the trial judge. No abuse of discretion having been shown, the court's ruling was correct.\\\" In the present case, the court did not err in sustaining objections to questions as to the identity of the informers.\\nThe judgment, and the order denying the motion for a new trial, are affirmed.\"}"
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+"{\"id\": \"4414383\", \"name\": \"R. W. AGNEW, Appellant, v. JOHN A. CRONIN et al., Respondents\", \"name_abbreviation\": \"Agnew v. Cronin\", \"decision_date\": \"1957-01-29\", \"docket_number\": \"Civ. No. 22007\", \"first_page\": \"117\", \"last_page\": \"130\", \"citations\": \"148 Cal. App. 2d 117\", \"volume\": \"148\", \"reporter\": \"California Appellate Reports, Second Series\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T02:01:11.946817+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"R. W. AGNEW, Appellant, v. JOHN A. CRONIN et al., Respondents.\", \"head_matter\": \"[Civ. No. 22007.\\nSecond Dist., Div. Two.\\nJan. 29, 1957.]\\nR. W. AGNEW, Appellant, v. JOHN A. CRONIN et al., Respondents.\\nR. W. Agnew, in pro. per., for Appellant.\\nHarold W. Kennedy, County Counsel (Los Angeles), Robert C. Lynch, Deputy County Counsel, and Everett H. Smith for Respondents.\", \"word_count\": \"4888\", \"char_count\": \"29001\", \"text\": \"FOX, J.\\nPlaintiff appeals from judgments of dismissal in favor of all defendants after their demurrers to his second amended complaint were sustained without leave to amend.\\nPlaintiff's second amended complaint is stated in three counts: The first cause of action is for damages for civil conspiracy. The second, which realleges only the same facts recited in the first cause of action, purports to proceed on the theory of actionable fraud. The third cause of action is for declaratory relief. The defendants are the sheriff of Los Angeles County; Mrs. Rowe, a judgment creditor of plaintiff, and her attorney, Oliver C. Hardy; and C. N. Young and Mike Palumbo, who are allegedly indebted to plaintiff, and their attorney, John A. Cronin.\\nThe complaint is lengthy and may be epitomized as follows: Defendant Rowe obtained a judgment against plaintiff for $434.92 in 1953. On December 14, 1954, defendants Young and Palumbo became jointly indebted to plaintiff in the sum of $725.77 for personal services. On that day, Yonng gave plaintiff his check for $325 in part payment, but caused payment thereon to be stopped the following day. On December 15, 1954, plaintiff informed Young, Palumbo and their attorney Cronin that he was destitute and without funds to procure the common necessities of life and would sue unless paid forthwith the entire amount due. His demand for payment was refused.\\nOn about December 15, 1954, defendants Young, Palumbo and Cronin formed a conspiracy, which defendants Rowe and Hardy joined and participated in about a week later, whose object was to defraud plaintiff out of the aforesaid money due him. The agreement reached by these conspirators and the actions taken pursuant thereto to accomplish its objectives were as follows: (1) to withhold all payments either of the sum of $325 or the sum of $725.77 from plaintiff and defraud him thereof; (2) Young to stop payment of the check given plaintiff; (3) when plaintiff filed suit for the amount due, Young and Palumbo to deny that plaintiff ever performed personal services, that any debt was owed, or that a check had been given and payment thereon stopped; (4) defendants Rowe and Hardy to obtain a writ of execution upon Rowe's judgment and direct defendant sheriff to make a levy thereunder by garnishing C. N. Young, for money in latter's possession belonging to plaintiff, and to conceal and suppress this proceeding from plaintiff by denying him, and causing to be denied him, any notice thereof and any opportunity to protect his interest in the property levied on by claiming its exemption; (5) to refrain from disclosing to the sheriff that the money levied on in Young's possession represented plaintiff's earnings for personal services rendered and payable on December 14, 1954; (6) to deny plaintiff the rights and protection afforded him as a judgment debtor under sections 690, 690.11, and 690.26 of the Code of Civil Procedure, viz., the privilege of applying for exemption.\\nIt is alleged that pursuant to the above conspiracy, Young stopped payment on the check for $325 issued to plaintiff and that on December 29, 1954, Rowe and Hardy procured a writ of execution in favor of Rowe and against plaintiff as a judgment debtor. The writ was directed to the sheriff with instruction to make levy on money or debts belonging to plaintiff in Young's possession without informing the sheriff that such moneys were plaintiff 's earnings for personal services rendered Young within 30 days next preceding the \\\"alleged levy, garnishment and attachment.\\\" On December 29,1954, the sheriff served Young with a garnishment, ordering Young not to pay over to anyone except himself the items garnished. In his \\\"Answer to Garnishment,\\\" Young reported he was indebted to plaintiff in the sum of $325, which he had in his possession; however, with intent to defraud plaintiff and pursuant to the conspiracy, he failed to disclose to the sheriff the exempt character of the debt. It is then alleged that the defendants other than the sheriff breached their duty to notify plaintiff of the garnishment in order that he might have an opportunity to claim his privileges under Code of Civil Procedure sections 690.11 and 690.26 and that such defendants, at all times here material, knew plaintiff was a destitute person and that the money levied upon was exempt from execution under sections 690 and 690.11, Code of Civil Procedure.\\nIt is further alleged that plaintiff filed his complaint (No. 639033, Superior Court) against Young and Palumbo for the amount due him for his personal services on January 19, 1955, and caused them to be served with complaint and summons on the following day; and that Young and Palumbo answered , said complaint with denials as described in the alleged conspiratorial agreement and that the defendants knew the falsity of such answer.\\nOn February 21,1955, pursuant to the conspiracy, and with intent to defraud plaintiff, Young paid the aforementioned $325 to the sheriff. On February 25, 1955, the sheriff paid this amount, less the sum of $7.35 as fees, commissions and expenses, to defendant Rowe in partial satisfaction of her judgment. On various occasions between December 15, 1954, and June 27, 1955, plaintiff inquired of Young, Palumbo and Cronin why the sum of $325 was not paid him, and on such occasions they refused to disclose, and deliberately concealed from him, the fact that the sheriff had served the above writ on December 29, 1954. Plaintiff did not learn of the issuance of the writ and the payment to the sheriff pursuant thereto until June 27, 1955.\\nConcerning the sheriff, plaintiff alleges that it has been the sheriff's continuing practice when garnishing personal property belonging to a judgment debtor to deliberately refrain from giving notice of the service of garnishment to the judgment debtor and to deprive the latter of an opportunity to protect his property; that from January 19, 1955, to February 25, 1955, the sheriff knew of the pendency of plaintiff's complaint for the money levied on because of its nature as a \\\"public record,\\\" and that the money so levied on was exempt from execution under Code of Civil Procedure sections 690 and 690.11, and that the sheriff was required, according to the spirit and purpose of said statutes and under the constitutional requirements of due process of law to give him notice of the levy; that the sheriff's seizure of said property and his delivery thereof to Rowe and Hardy divested him of property rights in violation of law; that the property seized was exempt as plaintiff's earnings for personal service rendered within 30 days next preceding the levy and was necessary for plaintiff's use and the use of his family, who reside in California and are supported in part by him.\\nIt is further alleged that plaintiff suffered emotional shock and suffered hunger and want by reason of the acts of defendants, and that the conduct of the defendants other than the sheriff was actuated by malice.\\nIn his third cause of action, all of the above allegations are reiterated. Plaintiff then asserts that the defendants, other than the sheriff, threaten that if he should recover judgment in his action Number 639033 for the sum of $725.77, that any amount recovered would not be paid to him but that Hardy and Rowe threaten to instruct the sheriff to levy thereon in further satisfaction of the Rowe judgment without notification thereof to plaintiff; and that the sheriff threatens that if instructed to levy on money belonging to plaintiff in the possession of Young or Palumbo, he will levy on and garnishee the same without notice to plaintiff. Plaintiff alleges that a controversy exists (1), respecting the validity of such threatened levy without notice to plaintiff; (2) as to whether the prior levy was conformable to law; (3) as to who is entitled to possession of the $325 taken upon execution; (4) whether he is entitled to notice when the sheriff levies upon his property in the possession of another in order that he might decide whether to waive or claim the privilege of exemption; and (5) whether exempt property retains such status until plaintiff receives knowledge of the levy and elects to waive or claim the privilege. Plaintiff alleges in respect to this controversy that a levy upon his exempt property in the control of a third person without notice to him violates the law, while it is defendants' contention that notice is not required nor do they have any duty to give notice; that unless he have a declaration of rights he will be irreparably damaged.\\nThe prayer is for general and punitive damages against the defendants other than the sheriff, and an injunction prohibiting them from seizing additional property belonging to plaintiff in the hands of Young and Palumbo without notice; declaratory relief; for an order compelling the sheriff to seize the $325 for delivery to plaintiff and an order compelling Rowe to pay said sum over, and for other relief.\\nThe sheriff, Rowe, and Hardy interposed general demurrers. Cronin, Young and Palumbo interposed a joint general demurrer and demurred specially \\\"that there is another action pending between the same parties.\\\" All the demurrers were sustained without leave to amend.\\nTurning first to the question of the sheriff's liability, it is to be observed at the outset that the property in dispute was not absolutely exempt from execution but was merely subject to exemption upon exercise of the privilege by the debtor. (Code Civ. Proc., \\u00a7 690.26.) It is significant that there is neither an allegation that the' sheriff is involved or participated in any conspiracy with the other defendants to deprive plaintiff of his exemption privilege, nor that he had actual knowledge that the money in the hands of the garnishee was subject to a claim of exemption. Plaintiff's attempt to impose liability on the sheriff is predicated essentially on the contention that he was not afforded an opportunity to claim his exemption because the sheriff failed to give him notice that he was running a garnishment in aid of execution upon money owed plaintiff in Young's possession. This contention is without substance or warrant, for it professes to impose on the sheriff an obligation neither inherent in his office nor specified by law as one of his official duties.\\nThere is no provision in the pertinent sections of the Code of Civil Procedure which requires the levying officer to notify a judgment debtor that money belonging to him and held by a third party is being levied on, nor have we been referred to any case imposing such obligation in the absence of statutory mandate. Had the Legislature intended to impose such a duty on the sheriff in its elaborately detailed development of a statutory scheme of attachment and garnishment procedures and the granting of exemptions from execution (Code Civ. Proc., \\u00a7 537-561, 681-713), it is not to be doubted that it would have ascribed that responsibility to the sheriff; but it has pointedly refrained from so doing. It is patent that this omission was deliberate, for, as will subsequently appear, the primary responsibility for protecting the interests of the judgment debtor in a proper case lies with the garnishee. Clearly, the Legislature did not deem it incumbent on the sheriff, as a stranger to the proceedings and as a ministerial officer charged with the function of executing orders not manifestly irregular or void on their face (Gov. Code, \\u00a7 26608; First Nat. Bank v. McCoy, 112 Cal.App. 665 [297 P. 571]), to be saddled with the burden of searching for and notifying the judgment debtor in every case where he is directed to serve a writ of garnishment upon the ground, perchance, that the property levied on may be susceptible to a claim of exemption. The reason for this omission is not difficult to ascertain. All that the sheriff knows about the transaction derives from the writ commanding him to make the levy. He is not expected to know, nor is he advised of, the place of abode or residence of the vast number of judgment debtors whose assets he is directed to garnish, and it would be a virtually insuperable, if not impossible, undertaking for him to attempt to seek out such persons, who may be scattered in various parts of the state, to apprise them of a garnishment. Contrary to plaintiff's assertion, a statute does not abridge due process of law by failing to provide notice of garnishment proceedings by a levying officer, and it has been held upon the highest authority that a statute authorizing the issuance of a garnishment in aid of execution without notice to the judgment debtor is constitutional. (Endicott-Johnson Corp. v. Encyclopedia Press, 266 U.S. 285, 288 [45 S.Ct. 61, 69 L.Ed. 288] ; High v. Bank of Commerce, 95 Cal. 386, 387 [30 P. 556, 29 Am.St. Rep. 121] ; Coffee v. Haynes, 124 Cal. 561, 565 [57 P. 482, 71 Am.St.Rep. 99]; Foster v. Young, 172 Cal. 317, 322 [156 P. 476] ; Smith v. Dickson, 58 Iowa 444, 445 [10 N.W. 850] ; Ketcham v. Kent, 115 Mich. 60, 63 [72 N.W. 1110] ; Hexter v. Clifford, 5 Colo. 168, 173.) In Endicott-Johnson Corp. v. Encyclopedia Press, supra, the Supreme Court of the United States addressed itself to the question in these terms: \\\"However, the established rules of our system of jurisprudence do not require that a defendant who has been granted an opportunity to be heard and has had his day in court, should, after a judgment has been rendered against him, have a further notice and hearing before supplemental proceedings are taken to reach his property in satisfaction of the judgment. Thus, in the absence of a statutory requirement, it is not essential that he be given notice before the issuance of an execution against his tangible property; . No established rule of our system of jurisprudence requires that such notice be given. On the contrary, it has been frequently held in the state courts that, in the absence of a statutory requirement, it is not essential that the judgment debtor be given notice and an opportunity to be heard before the issuance of such garnishment. [ Citations. ] ' '\\nIn the light of these principles and considerations, it is clear that plaintiff has stated no cause of action against the sheriff. It is not claimed that he was confederated in the conspiracy to defraud plaintiff of property subject to exemption; on the contrary, it is alleged that the other defendants concealed from the sheriff the character of the property levied on. The mere fact that in January, 1955, plaintiff had on file a complaint against Young and Palumbo for recovery of moneys owed him for personal services cannot, on any theory of constructive notice of \\\"public records,\\\" impute vicarious knowledge of the contents of that complaint to the sheriff. It is well settled in this state that the mere pendency of an action, without more, does not impart constructive notice to all the world of the fact of such litigation. (MacDermot v. Hayes, 175 Cal. 95, 110 [170 P. 616] ; Bernhard v. Wall, 184 Cal. 612, 630 [194 P. 1040] ; Orekar v. Lager, 122 Cal.App. 370, 372 [10 P.2d 178].) And, as has been pointed out, the sheriff has violated no duty to plaintiff enjoined on him by law nor is it made to appear that any valid or justiciable controversy exists between plaintiff and the sheriff. For the foregoing reasons, the judgment in favor of the sheriff was proper.\\nAn entirely different congeries of legal principles comes into play in considering the complaint against the remaining defendants. Here we are confronted with the obligation of good faith and fair dealing imposed by law upon a garnishee and the positive duty devolving upon him not to wantonly sacrifice or wrongfully dispose of the property in his possession upon which levy has been made. Thus, it is the prevailing law that the garnishee, who knows that the property levied on is subject to a claim of exemption by his creditor and that his creditor is ignorant of the garnishment, has the duty, whenever practicable, to notify his creditor of the garnishment so that the latter may have the opportunity, if he desires, of exercising his claim of exemption. (Hing v. Lee, 37 Cal.App. 313, 317-318 [174 P. 356] ; Harris v. Balk, 198 U.S. 215, 227 [25 S.Ct. 625, 49 L.Ed. 1023] ; Southern Ry. Co. v. Fulford, 125 Ga. 103 [54 S.E. 68] ; Missouri P. R. Co. v. Whipsker, 77 Tex. 14 [13 S.W. 639, 19 Am.St.Rep. 734, 8 L.R.A. 321] Pierce v. Chicago & N.W. R. Co., 36 Wis. 283; Stewart v. Northern Assur. Co., 45 W.Va. 734 [32 S.E. 218, 44 L.R.A. 101] ; Czesna v. Lietuva Loan & Sav. Assn., 252 Ill.App. 612.) These cases rely on the salutary principle that fair dealing requires such notification where possible in order that the right to claim the exemption be not prejudiced. A garnishee with knowledge that a fund in his possession is subject to exemption and that its owner has no knowledge of the garnishment is in complete control of the situation and must not needlessly imperil the fund in his hands or unnecessarily or arbitrarily subject it to the garnishment. He must act with reasonable caution in recognition of the owner's known rights and if he departs from his ordinary status as a neutral or disinterested stakeholder to give an improper advantage to one side or the other, he will be held liable to the party prejudiced. As stated in Hardy v. Hunt, 11 Cal. 343, 350 [70 Am.Dec. 787], \\\" 'The garnishee is regarded by the law somewhat in the light of a trustee, and is bound to protect, by legal and appropriate steps, the rights of all parties to the goods or credits attached in his hands. . . .' \\\"\\nThese principles are well exemplified in Hing v. Lee, supra, where the court propounds the controlling law in the following language (p. 318): \\\"Though exemption is a personal privilege, which the judgment debtor may waive if he choose, yet the privilege exists until he, himself, or someone authorized to do so waived it . . . and a garnishee, whether trustee or mere debtor, cannot waive it for him, or deprive him of the opportunity to claim it without being liable to him in damages.\\\" (Italics added.) In the cited case, defendant bank held the proceeds of an insurance policy for plaintiff. The sum was subject to exemption from execution under Code of Civil Procedure, section 690.18. Plaintiff's judgment creditor caused a garnishment in aid of execution to issue on this sum held by the bank. The bank paid the sum to the sheriff. Plaintiff did not know of the garnishment and had no opportunity to claim his exemption. The court declared that the bank held the fund in trust and that it was a breach of duty to plaintiff to hand over the fund to the sheriff without offering plaintiff an opportunity to make his claim of exemption. The court also discussed defendant's contention that no trust existed and that the deposit merely created a debtor-creditor relationship. In this connection, the court stated: \\\"Considering it thus a deposit, we feel satisfied that, in view of the ignorance of plaintiff of the levy of the execution, it was the duty of the bank to notify him before paying over the money to the sheriff. If it had been other personal property belonging to plaintiff, in the possession of defendant, a sale would be required, and it would have made no particular difference whether the bank gave notice or not, since the sheriff would have been required to give notice to plaintiff before the sale. But, it being money, the conduct of the bank made it impossible for plaintiff to claim this privilege of exemption, and hence appellant should be held responsible for the amount lost.\\n\\\"In Freeman on Executions, third edition, section 416, it is said: 'Although as a general rule the exemption of property from execution can only be claimed by its owners, yet the rule does not apply to proceedings by garnishment. If the garnishee has in his possession any property or credit of the defendant not subject to execution he certainly may and he probably must, assert the fact of such exemption and thereby prevent the property from being taken and applied under the execution . . . When, however, the person summoned knows of a defense as that the debt or property sought to be reached is exempt from execution, we believe that it is his duty to assert such defense, or, at least, to inform his creditor of the proceeding and give him an opportunity to act for himself, and if the duty is not performed, that no judgment or order against the person summoned can protect him from liability to his creditor. '\\n\\\"In the case at bar the garnishee knew, or, at least, had reason to know, that the property was exempt from execution and that the judgment debtor had ho knowledge of the garnishment, and hence the payment of money to the sheriff does not protect appellant from liability to the judgment debtor. ' ' This states the rule here applicable.\\nApplying these principles to the case at bar, it is obvious that plaintiff has stated a cause of action against the defendants. It is charged, in substance, that defendant Young had in his possession money subject to exemption as current wages for personal services required by plaintiff for the necessities of life and that these defendants conspired to defeat his ownership of that fund by a course of conduct calculated to deprive him of the opportunity to assert the exemption. To that end, Rowe obtained a writ of garnishment directing the seizure of the money in accordance with a prearranged plan that would enable Rowe to obtain the money in derogation of plaintiff's rights. Pursuant to that plan, Young answered the garnishment without disclosing that the money was subject to exemption and turned over the money to the sheriff for delivery to Rowe without any notification to plaintiff despite his knowledge that plaintiff was ignorant of the garnishment. It is thus clear that plaintiff has stated the formation of, and acts done pursuant to, a wrongful conspiracy to deprive him of a statutory privilege which resulted in economic detriment to him, and each participant is responsible as a joint tortfeasor for the ensuing damage regardless of whether he was a direct actor or the degree of his activity. (Mox Inc. v. Woods, 202 Cal. 675 [262 P. 302]; California Auto Court Assn. v. Cohn, 98 Cal.App.2d 145, 149 [219 P.2d 511].) Plaintiff's complaint does not charge ordinary negligence on the part of a garnishee to notify him of the garnishment so that he might preserve his exemption rights, as in Hing v. Lee, supra. Here we are presented with the aggravated situation of a conspiracy in which the garnishee procured the execution and colluded to conceal the facts in order to frustrate plaintiff's right to promptly claim an exemption. A similar matter was considered in Smith v. Dickson, 58 Iowa 444 [10 N.W. 850], where defendant collusively procured a judgment to be rendered against him in a prior garnishment proceeding. He sought to resist plaintiff's .present action to recover the sum due by interposing his payment under garnishment as a defense. In repelling the argument the court remarked (p. 851 [10 N.W.]): \\\"The defendant, knowing the money in his hands was exempt from execution, procured himself to be summoned as garnishee, failed to plead the exemption, or notify the plaintiff, so that he might do so. This was in the nature of a fraud upon the plaintiff. The judgment against the defendant was rendered by collusion or procurement on his part, and he should not, we think, be permitted to set it up as a shield or defense in this action. Even if it be conceded the rule is that a garnishee defends only for himself, the defense must be in good faith. But here no defense was interposed, and in bad faith, in fraud of the rights of the plaintiff, the defendant procured a judgment against himself.\\\" Likewise, in the instant case, the defendants were so concerned with having the judgment creditor satisfied, even out of exempt funds, that they conspired to foreclose the plaintiff of his exemption rights by a violation of the garnishee's obligation to notify him of the occasion for the exercise of his privilege.\\nFurthermore, the complaint also alleges that plaintiff inquired as to why the money was not paid while the garnishment proceedings were taking place. Young deliberately concealed from him, both by silence and by equivocal responses and statements, that the money had been levied on, in accordance with the common design. Plaintiff having requested information from Young on a matter peculiarly within his knowledge, it was Young's duty not to conceal any facts hut to make a full and fair disclosure. This rule applies independently of any confidential relationship between the parties. (Rogers v. Warden, 20 Cal.2d 286, 289 [125 P.2d 7]; Bank of America v. Greenback, 98 Cal.App.2d 220, 224 [219 P.2d 814].) In Gillespie v. Ormsby, 126 Cal.App.2d 513, 527 [272 P.2d 949], this court stated: \\\"Deceit may be negative as well as affirmative; it may consist in suppression of that which it is one's duty to declare, as well as in the declaration of that which is false . . .[0]ne who speaks is not only obligated to tell the truth but he is equally bound not to suppress or conceal any facts within his knowledge which materially qualify those stated [citations].\\\" Having superior and exclusive knowledge of all the facts, and having been questioned by plaintiff as to why the money was not being paid him, and having a duty as garnishee to apprise plaintiff that his exempt property was at the time of the inquiry under garnishment, Young was bound to make a complete disclosure of the facts to enable plaintiff to fully understand the situation. His failure to do so under the circumstances constituted fraud.\\nIn the light of the facts alleged and the controlling law, plaintiff has stated causes of action against the defendants and it was error to sustain the general demurrer.\\nThere was also a special demurrer jointly made by defendants Young, Palumbo and Cronin that \\\"there is another action pending between the same parties for the same cause.\\\" The only action pending alleged in the complaint was one between plaintiff and Young and Palumbo and would in nowise, from the face of the complaint, appear to encompass any of plaintiff's rights against Cronin. This ground of special demurrer was not available to Cronin. Where a complaint is good against one of the joint demurrants, the demurrer must be overruled as to all. (Greenwood v. Mooradian, 137 Cal.App.2d 532, 546 [290 P.2d 955].) Furthermore, where the plea in abatement because of a prior action pending is presented by demurrer, it is error to enter a final judgment with respect to that issue at the time the demurrer is heard. (Lord v. Garland, 27 Cal.2d 840, 851 [168 P.2d 5].)\\n' The judgment in favor of the sheriff is affirmed. The judgments in favor of all other defendants are reversed.\\n\\u00edloore, P. J., and Ashburn, J., concurred.\\nIt should be emphasized that this court is confronted with questions of law only, and must accept the allegations of the complaint as true for purposes of this appeal.\\nThis phase of the conspiracy antedates the participation therein of Eowe and Hardy.\\nCode of Civil Procedure, section 690, provides: \\\"The property mentioned in Sections 690.1 to 690.25, inclusive, this code, is exempt from execution or attachment, except as therein otherwise specially provided, when claim for exemption is made to the same by the judgment debtor or defendant as hereinafter in Section 690.26 provided.\\\"\\nSection 690.11 provides: \\\"One-half of the earnings of the defendant or judgment debtor received for his personal services rendered at any time within 30 days next preceding the levy of attachment or execution where such one-half is necessary for the use of the debtor, or his family supported in whole or in part by such debtor.\\n\\\"All of such earnings, if necessary for the use of the debtor's family, residing in this State, and supported in whole or in part by such debtor unless the debts are: (a) Incurred by such debtor, his wife or family, for the common necessaries of life; or, (b) incurred for personal services rendered by any employee, or former employee, of such debtor. ' '\\nSection 690.26 reads in part: \\\"If the property mentioned in Sections 690.1 to 690.25, inclusive, shall be levied upon under writ of attachment or execution, the defendant or judgment debtor . in order to avail himself of his exemption rights as to such property, shall deliver to the levying officer an affidavit of himself or his agent, together with a copy thereof, alleging that the property levied upon, identifying it, is exempt .\\\"\\nHereafter reference to defendants applies to defendants other than the sheriff.\"}"
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+"{\"id\": \"4429837\", \"name\": \"Estate of HERBERT FEUEREISEN, Deceased. SAN DIEGO PUBLIC LIBRARY et al., Petitioners and Appellants, v. BANK OF AMERICA, as Executor, etc., Objector and Respondent\", \"name_abbreviation\": \"San Diego Public Library v. Bank of America\", \"decision_date\": \"1971-05-19\", \"docket_number\": \"Civ. No. 10689\", \"first_page\": \"717\", \"last_page\": \"723\", \"citations\": \"17 Cal. App. 3d 717\", \"volume\": \"17\", \"reporter\": \"California Appellate Reports, Third Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T22:55:46.141517+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Estate of HERBERT FEUEREISEN, Deceased. SAN DIEGO PUBLIC LIBRARY et al., Petitioners and Appellants, v. BANK OF AMERICA, as Executor, etc., Objector and Respondent.\", \"head_matter\": \"[Civ. No. 10689.\\nFourth Dist., Div. One.\\nMay 19, 1971.]\\nEstate of HERBERT FEUEREISEN, Deceased. SAN DIEGO PUBLIC LIBRARY et al., Petitioners and Appellants, v. BANK OF AMERICA, as Executor, etc., Objector and Respondent.\\nCounsel\\nJohn W. Witt, City Attorney, Clifton E. Reed and Peter D. Bulens, Deputy City Attorneys, Low & Stone and Joseph Stone for Petitioners and Appellants.\\nKaminar, Sorbo, Andreen & Thom and Howard Wiggins for Objector and Respondent.\", \"word_count\": \"2203\", \"char_count\": \"13172\", \"text\": \"Opinion\\nCOUGHLIN, Acting P. J.\\nPetitioners, San Diego Public Library and the State of Israel, appeal from the denial of their petition, pursuant to Probate Code section 584, for an order directing objector, Bank of America National Trust and Savings Association, as executor, to purchase an annuity.\\nThe will of Herbert Feuereisen and a codicil were admitted to probate on July 1, 1969; designated the Bank of America, i.e., the objector, as executor; bequeathed his brother $100; devised and bequeathed all of the remainder of his property to the Bank of America in trust for the purpose of paying his sister Mathilda Feuereisen $270 per month for the rest of her life; directed the trust should continue until his sister's death and upon termination the trust assets should be \\\"paid over\\\" to San Diego Public Library and State of Israel, one-half thereof to each; authorized the trustee to invest and reinvest the trust property in designated common stocks; and prescribed the amount of compensation payable to the trustee. The estate consisted of bonds, corporation stocks, savings and loan accounts, small bank deposits and personal items, appraised at $121,359.52. After the time for filing creditors' claims had expired and the first account current of the executor had been approved, the San Diego Public Library and the State of Israel petitioned the court for an order directing the executor to purchase an annuity from Beneficial Standard Life Insurance Company of Los Angeles for the sum of $56,700, under which Mathilda Feuereisen would be paid $270 per month for life and upon her death $54,000 would be paid to and divided equally between the petitioners. Although the petition does not seek immediate distribution of the remainder of the estate, i.e., the amount thereof over $56,700, it is alleged the purchase of the annuity will save trustee's fees and enable petitioners to receive the remainder of the estate \\\"instead of leaving it unnecessarily in trust.\\\" The petition asserts the court should order the executor to purchase the annuity on the basis proposed therein regardless of the consent or objection of Mathilda Feuereisen or the Bank of America.\\nThe Bank of America, as executor, filed objections to the petition and, through its attorney, appeared at the hearing. Mathilda Feuereisen made no response to the petition or appearance at the hearing. The court found, among other things, the testator intended to create a trust under his will for the primary benefit of Mathilda Feuereisen, and the showing made by petitioners did not constitute good cause why the court should exercise its discretion under Probate Code section 584 to authorize the purchase of a commercial annuity.\\nPetitioners contend, in substance, under the circumstances of the case the court is required, as a matter of law, to direct the executor to purchase an annuity as requested pursuant to Probate Code section 584; and cite the decision in Estate of Nicely, 235 Cal.App.2d 174 [44 Cal.Rptr. 804] which, they assert, dictates this determination.\\nProbate Code section 584, in pertinent part, provides: \\\"Pending the settlement of an estate . on the petition of the executor or administrator, or of any person interested in the estate, and upon good cause shown therefor, the court may order any money in the hands of the executor or administrator, to be invested . in the purchase from an insurer admitted to do business in this State and for any legatee named in the will of an annuity expressly granted to him by said will.\\\"\\nPreliminarily, it is pertinent to note although section 584 of the Probate Code provides the court may order \\\"any money in the hands of the executor\\\" to be invested, there is no showing there is any money in the hands of the executor, the Bank.\\nWe conclude whether, under the circumstances of this case, the court should order the executor to invest in an annuity providing Mathilda Feuereisen a monthly payment of $270 during her lifetime, was a determination subject to an exercise of judicial discretion; the finding \\\"good cause\\\" for such an order was not shown is supported by the record; an abuse of discretion does not appear; and the order should be affirmed.\\nThe testator bequeathed and devised the residue of his estate to a trustee with instructions concerning its investment; named his sister a beneficiary of the trust, directing payment be made to her by the trustee of $270 per month during her lifetime; and also named petitioners as beneficiaries, directing the trustee to pay to them upon the death of his sister the remainder of the trust estate. Petitioners, in substance, asked the court to disregard the terms of the will and, in lieu of a trust for the benefit of testator's sister, to liquidate estate property and purchase an annuity which, in substance, substitutes an insurance company for the trustee named by the testator to effect the payment of $270 per month to testator's sister for her lifetime. It is not shown the Bank of America is not capable of effecting the intent of the testator; an insurance company would effect that intent more competently; or any other reason existed for a change in the method directed by the testator to effect that intent. (Cf. Fletcher v. Los Angeles Trust etc. Bank, 182 Cal. 177, 180 [187 P. 425].)\\nThe beneficiary of a testamentary trust has an equitable estate in the trust property vesting at the time of death of the testator. (Title Ins. & Trust Co. v. Duffill, 191 Cal. 629, 647 [218 P. 14].) Thus, the sister had a vested equitable estate in the trust property. It is not shown the sister consents to a conversion of her equitable estate in trust property into an interest in an annuity under a contract executed by an insurance company. To the contrary, the petition at bench seeks an order directing the executor to purchase an annuity \\\"regardless of the consent or opposition\\\" of the sister.\\nThe will at bench does not direct the payment of an annuity from the estate of the testator as in Estate of Moore, 219 Cal.App.2d 737, 742 [33 Cal.Rptr. 427] and Estate of Luckel, 151 Cal.App.2d 481, 491 [312 P.2d 24]. Where the annuity is payable from the estate the will imposes upon the executor the obligation of making the payments. In the discharge of this obligation the executor, as an administrative matter, properly may apply for and receive permission, pursuant to Probate Code section 584, to liquidate assets of the estate and invest the proceeds in an annuity. The petition at bench seeks more than the performance of an administrative obligation by the executor; seeks a change in the method of payment of a monthly sum to a beneficiary by substituting payment under an annuity contract for payment through a trust created by the testator; and, although not expressly asserted, seeks termination of that trust to effect immediate disposition of the residue of the estate to the petitioners in lieu of payment to them through the trustee upon termination of the trust on the death of the sister.\\nIn Estate of Nicely, supra, 235 Cal.App.2d 174, upon which petitioners rely, the prospective termination of a trust providing for monthly payments to a beneficiary with remainder over to other beneficiaries and the investment by the executor of estate funds in an annuity, as an incident in the procedure to effect such termination, was approved. All of the beneficiaries under the trust were applicants for the relief sought. In the cited case termination of the trust was essential to compliance with the mandate of the law decreeing that portion of an estate in excess of the permissible percentage the testator is authorized to devise and bequeath to nonexempt charitable agencies should go to the testator's heir rather than to the heirs or assignees of such an heir, which would have resulted from compliance with the trust provisions in question. The trust frustrated the mandate of the law decreeing property of an estate in excess of the permissible percentage a testator is authorized to devise and bequeath to nonexempt charitable agencies shall go to his heir; the beneficiary under the annuity provisions of the trust was the only heir of the testator; enforcement of the trust would deny her the right to receive the excess impermissibly devised and bequeathed to nonexempt charitable agencies; and termination of the trust with consent of all the beneficiaries would effect immediate distribution of the excess to the heir and consequent compliance with the law. Investment in an annuity pursuant to Probate Code section 584 was a prerequisite procedure prescribed by the court as an incident to termination upon , consent of all the beneficiaries. Compliance with the mandate of the law heretofore noted constituted good cause for granting the order authorizing the investment of estate property in an annuity.\\nIn the case at bench the circumstances relied upon as constituting good cause vary in material aspects from those in the cited case; are set forth in the allegation the purchase of an annuity would save trustee's fees in the sum of $750 a year and would enable petitioners to receive forthwith the excess of the estate over the purchase price of the annuity, instead of leaving it unnecessarily in trust; and do not require a finding of good cause as a matter of law.\\nThe testator specifically designated the amount the trustee should receive for services in executing the trust; contemplated it should invest and reinvest the assets of the trust advantageously; and intended petitioners should receive the benefit of these investments upon the death of his sister. He did not intend a part of his estate should be used to pay an insurance company a fee to effect the payment of $270 per month to his sister and to use a part of his estate to invest and reinvest at its pleasure, retaining all of the profits received from such transactions above that necessary to make the $270 per month payment. The trial court was entitled to conclude trading a $750 a year trustee's fee for the fee charged by the insurance company and the potential profit from investing and reinvesting estate funds it would receive was not \\\"good cause\\\" to invest those funds in an annuity.\\nPetitioner's assertion the purchase of an annuity would enable them to receive forthwith the residue of the estate less only the price of the annuity is \\\"good cause\\\" for investment by the executor in an annuity, is premised on the predictions the trust would be terminated upon purchase of the annuity. Termination of the trust could be accomplished only upon consent of all the beneficiaries (Gen. see Fletcher v. Los Angeles Trust etc. Bank, supra, 182 Cal. 177, 179), or upon a showing the purpose for which it was created had ceased. (Civ. Code, \\u00a7 871, 2279.) Termination of the trust upon consent of the beneficiaries is decreed only when all of the beneficiaries are before the court and all of the beneficiaries consent to termination. (Gray v. Union Trust Co., 171 Cal. 637, 641 [154 P. 306]; Wogman v. Wells Fargo Bank, 123 Cal.App.2d 657, 665 [267 P.2d 423].) Even though Probate Code section 584 applies not only to an annuity created by \\\"a bequest of certain specified sums periodically\\\" payable from the testator's estate (Prob. Code, \\u00a7 161, subd. (3)), but also to a type of annuity effected through a testamentary trust under circumstances similar to those in Estate of Nicely, supra, 235 Cal.App.2d 174, it does not follow section 584 applies in all instances to an annuity effected by a testamentary trust. In any event, a trial court is entitled to conclude a showing the purchase of an annuity might result in termination of a trust which would benefit the remaindermen beneficiaries, without showing the fife beneficiary consents to the termination, is not a showing of \\\"good cause.\\\" Furthermore, where the application for an order directing the executor to purchase an annuity contemplates purchase of the annuity may effect the purpose of the trust and, in this manner, eliminate the necessity for consent of the life beneficiary to termination of the trust, a court does not abuse its discretion in refusing to grant the order where the life beneficiary has not joined in the application. The life beneficiary has a vested estate in the trust property which should not be subjected to termination unless, at least, she is an actual party to the proceeding.\\nThe order is affirmed.\\nWhelan, J., and Ault, J., concurred.\\nA petition for a rehearing was denied June 4, 1971, and appellants' petition for a hearing by the Supreme Court was denied July 14, 1971.\\nThe record on appeal shows the petition was served by mail on the executor but does not show any service upon Mathilda Feuereisen.\"}"
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+"{\"id\": \"4430056\", \"name\": \"EULA PETERS, Respondent, v. MARGARET FELBER, Appellant\", \"name_abbreviation\": \"Peters v. Felber\", \"decision_date\": \"1944-09-22\", \"docket_number\": \"Civ. A. No. 5856\", \"first_page\": \"1011\", \"last_page\": \"1019\", \"citations\": \"66 Cal. App. 2d Supp. 1011\", \"volume\": \"66\", \"reporter\": \"California Appellate Reports, Second Series\", \"court\": \"Appellate Division of the Superior Court of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T01:07:57.053132+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"EULA PETERS, Respondent, v. MARGARET FELBER, Appellant.\", \"head_matter\": \"Appellate Division, Superior Court, Los Angeles\\n[Civ. A. No. 5856.\\nSept. 22, 1944.]\\nEULA PETERS, Respondent, v. MARGARET FELBER, Appellant.\\nRobert H. Stelzner for Appellant.\\nSamuel Maidman for Respondent.\\nW. L. Shobert as Amicus Curiae on behalf of the Office of Price Administration.\", \"word_count\": \"3199\", \"char_count\": \"18512\", \"text\": \"BISHOP, J.\\nCommon sense and the authorities join to support the conclusion that a tenant who brings an action against his landlord after he has been repeatedly charged a rental in excess of that fixed by the Office of Price Administration as the maximum which may be demanded, may have judgment for either three times the amount collected in excess of the lawful rate or $50, whichever is the greater sum; that a judgment for as many times $50 as there were overpayments is not authorized.\\nThis appeal is presented to us on a judgment roll which includes formal findings of fact. From the findings it appears that the maximum legal rent that could be charged for the defense-area housing accommodations, which the defendant had rented to the plaintiff under a month to month tenancy, was $19 per month, but that sometime before June 30, 1944, the defendant had demanded of, and received from, the plaintiff the sum of $25 for each of six months. Upon these facts, the trial court entered a judgment awarding plaintiff $300 damages, $60 attorney fee, and costs, and the defendant appealed. We have determined that the judgment should be modified so that the damages awarded equal three times the total of the overcharges, not six times the $50 penalty.\\nThe crucial legal problem presented on this appeal is one of statutory construction. In the Emergency Price Control Act of 1942 (56 Stats. 23, 50 U.S.C.A.App. \\u00a7 901 et seq.), the Congress provided (\\u00a7 205(e) [\\u00a7 925(e)]): \\\"If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity for use or consumption other than in the course of trade or business may bring an action either for $50 or for treble the amount by which the consideration exceeded the applicable maximum price, whichever is the greater, plus reasonable attorney's fees and costs as determined by the court. For the purposes of this section the payment or receipt of rent for defense-area housing accommodations shall be deemed the buying or selling of a commodity, as the ease may be.\\\" The section from which we have just quoted was materially changed in subsection (b) of sec tion 108 of the Stabilization Extension Act of 1944, approved June 30, 1944, but we are of the opinion that the amendment has no effect upon our case. The argument in support of the thought that plaintiff's right to proceed in the pending action has terminated, is that the redraft of the section worked a repeal of the old, of course by implication, and that with the repeal of the section upon which plaintiff's right of action depends, his right ends. However,' section 29 of title I, U.S.C.A. (\\u00a713, Rev. Stats., U.S.Comp.Stat. 1901, p. 6) guards against this result. It provides: \\\"The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.\\\" The provision made by the \\\"repealing Act\\\" in our case was this: \\\"(c) The amendment made by subsection (b), insofar as it relates to actions by buyers or actions which may be brought by the Administrator only after the buyer has failed to institute an action within thirty days from the occurrence of the violation, shall be applicable only with respect to violations occurring after the date of enactment of this Act. In other cases, such amendment shall be applicable with respect to proceedings pending on the date of enactment of this Act and with respect to proceedings instituted thereafter.\\\" Plainly, plaintiff's right to continue with this action has not been- terminated -by the redrafting of the section.-\\nAs- the Statute involved is federal legislation,' the construction to be placed upon it will ultimately be determined, no doubt, by the federal courts. (Bourdieu v. Seaboard Oil Corp. (1940), 38 Cal.App.2d 11, 19 [100 P.2d 528].) So far as we are aware there is at present no decision by any federal court of appellate jurisdiction that gives a specific answer to the question before us. Indeed, we know of but one appellate court that has passed on our problem. The Connecticut Supreme Court of Errors affirmed, in Lapinski v. Copacino (1944), 1 Price Control Cases No. 51942, a judgment awarding $350 for seven rent overcharges. This ease does not cause us to doubt the correctness of our conclusion, because the contentions it considered did not raise the question of construction which we find to be important, and the cases and principles which appear to us to be conclusive, it fails to mention.\\nThe general principle to be followed in the construction of section 205 (e) [ \\u00a7 925 (e) ] is succinctly expressed by the then Mr. Justice Stone in Haggar Co. v. Helvering (1940), 308 U.S. 389, 394 [60 S.Ct. 337, 84 L.Ed. 340, 344] : \\\"All statutes must be construed in the light of their purpose. A literal reading of them which would lead to absurd results is to be avoided when they can be given a reasonable application consistent with their words and with the legislative purpose.\\\" In Bowles v. American Stores, Inc. (1943), 139 F.2d 377, the United States Court of Appeals, District of Columbia, in reviewing a judgment where the award was five dollars instead of the amount authorized by section 205(e) [\\u00a7 925(e)], took occasion to say this about the purpose of the legislation (p. 379) : \\\"Congress foresaw that the task of enforcing the Act against retailers would be too vast for the Administrator to accomplish without the help of consumers. The plain purpose of the $50 clause is to enlist the help of consumers in discouraging violations. . . . The filing and prosecution of a small suit may or may not cost the plaintiff a substantial amount of money, but any suit takes time and effort. Most people have little time or taste for this sort of effort. Congress made $50 a floor and not a ceiling in order to give overcharged consumers the necessary incentive to sue.\\\" (See, also, Miller v. Municipal Court (1943), 22 Cal. 2d 818, 838 [142 P.2d 297, 309].)\\nTo interpret the section as authorizing the recovery in one action of as many times $50 as there are overcharges pleaded, would lead to results so absurd that the interpreta tion should be avoided unless required by the language of the section. This is not a fanciful speculation. We have one appeal pending before us where a multiple of $50 penalties is sought because of a succession of weekly rents which exceeded the ceiling price by 25 cents each. In another action now on appeal the plaintiff pleads twenty-two purchases in which he was overcharged a total of 34 cents, and prays for twenty-two $50 penalties, a total of $1,100. To interpret the section so as to hold out so great rewards for so minor overcharges would serve to foster in buyers a desire to promote price violations rather than to put a stop to them, with the result that the section would operate to defeat rather than further its purpose. Such an interpretation, obviously, is not to be adopted if it may be avoided without doing violence to the provisions of the section.\\nThe construction which we favor not only does no violence to the terms of the section, but, in the light of decisions dealing with like statutes, is called for by the terms chosen for the section. This idea of inviting the aid of the public in the enforcement of a statute by the award of small sums in addition to compensable damages, is not new. A statute quite similar to that before us gave rise to the case of Fisher v. N. Y. Central etc. Ry. Co. (1871), 46 N.Y. 644. The evil there sought to be discouraged was the making of a greater charge for railroad fare than that allowed by law. As stated in the opinion (p. 655), the statute provided that \\\"any railroad company which shall ask and receive a greater rate of fare than that allowed by law, shall forfeit fifty dollars, which sum may be recovered, together with the excess so received, by the party paying the same.\\\" The plaintiff on twenty-six occasions was asked and paid a fare of 34 cents, which was more than the legal fare, and he obtained a judgment for $1,376.48, made up mostly of $50 for each of the twenty-six payments. After commenting upon the fact that the law prohibiting overcharges had, before the adoption of the law in question, been inadequately enforced, because the amounts involved were too small to justify the expense of private actions, the New York Court of Appeals stated (pp. 657, 658, 659): \\\"To remedy this, the statute was passed giving the fifty dollars to the party paying the money, not as a satisfaction for the injury received, for that was otherwise compensated; but to enable him to prosecute in a court of record, when he could recover the compensation of his attorney as costs, and to compensate for any further expense that might be incurred in the suit, and to compel the payment of such a sum by the defendant as would effectually stop the practice. To effectuate this intent, the language of the statute was chosen with care; which sum, etc., may be recovered, omitting the words, 'for each and every offence, found in various penal statutes, showing clearly that the legislature did not intend to open a door to a practice adopted in a ease originating in another part of the State . of opening a book account of penalties earned, and delaying suit for a year, when such penalties amounted to between $20,000 and $30,000. A construction permitting this would defeat the intention of the legislature, which was to suppress the extortion by prompt prosecutions, by enabling parties to forbear suing until the aggregate of penalties amounted to a large sum, and induce others to do as one .of the plaintiffs in one of the cases now in judgment was honest enough to testify he did; that was to abandon other business and spend his time for a considerable period in riding back and forth from Tonawanda to Buffalo for the purpose of earning penalties . My conclusion is, that but one penalty can be recovered upon the statute under consideration, for all acts committed prior to the commencement of the action. If, after this, it is again violated, another may be recovered in another action commenced thereafter, and so on, as long as violations continue. This will not only tend to put a stop at once to the extortion, when it is committed knowingly by the defendant, but where it is done under a mistake as to its rights, will give it notice that its right to charge the amount claimed is challenged, and will induce a cautious examination of the question, and an abandonment of the claim before a ruinous amount of penalties have been incurred. ' '\\n, A like conclusion was reached in Griffin v. Interurban St. Ry. Co. (1904), 179 N.Y. 438 [72 N.E. 513], where this sanction had been provided to aid in the enforcement of a law which required the giving of a transfer upon request: \\\"For every refusal to comply with the requirements' of this section the corporation so refusing shall forfeit fifty dollars to the aggrieved party.\\\" Four times $50 was sought because on four occasions a transfer had been refused when requested. These brief quotations from the decision suffice to reveal the court's view (p. 449 of 179 N.Y.; p. 517 of 72 N.E.): ' There have been presented at the bar of this court, civil and criminal cases where the aggregate penalties sought to be recovered have amounted to enormous and well-nigh appalling sums by reason of plaintiffs permitting a long period to elapse before beginning actions. Actions of this nature have become highly speculative and present a phase of litigation that ought not to be encouraged. The court is of opinion that if cumulative recoveries are to be permitted, the legislature should state its intention in so many words; that a more definite form of statement be substituted for the words hitherto deemed sufficient. We intend no reflection upon the plaintiffs in the cases now under consideration, but are dealing with a great abuse which demands immediate correction. A sound public policy requires that only one penalty should be recovered in a single action, and that the institution of an action for a penalty is to be regarded as a waiver of all previous penalties incurred. It follows that, in each of the actions before us, the judgment should be modified and reduced so as to permit a recovery for one penalty only, without costs to either party.\\\"\\nIn the State of Tennessee a statute provides a penalty of $100 for the failure of a railroad, during any trip of its passenger cars, to announce the length of each stop and the name of the stopping place. The plaintiff charged that the defendant had failed to comply with the statute when it made a stop at Paducah junction, on two hundred and forty trips, and prayed for the wealth he saw coming to him from the' defendant's repeated derelictions. The Tennessee Supreme Court disappointed him by declaring in Parks v. Nashville etc. Ry. (1884), 13 Lea 1, 6, 7, 8 [49 Am.Rep. 655] : \\\" . . . the statute does not say that there shall be a penalty for 'each and every offense.' In the absence of these words, it seems to be settled that only one recovery can be had for acts or omissions, in violation of the statute, prior to the commencement of the suit: 5 Wait's Act and Def., 164. The reason is, that it is the action which will bring the default to the attention of the corporation or party, and secure a compliance with the law. And it is the performance of the duties imposed which inures to the benefit of the passengers, on whose behalf the act was passed. A different construction would contravene the legislative intent, leave an opening for the perversion of the act, and make a statute punitive which was intended to he remedial. . To allow a person to open a book account of penalties at an insignificant way .station, and run up a charge of $24,000 for the failure of the conductor to announce the station, or the length of stay, of which no passenger has complained, would shock the conscience, pervert the intention of the Legislature, and turn a remedial into a highly punitive statute. It would be a literal construction of the words of the statute, which would recall the similar construction by a somewhat famous judicial tribunal of the middle ages of a . law making it a capital offense to shed blood in the street, whereby an unfortunate leech was condemned to the gallows for bleeding his apoplectic patient on the side walk where he had dropped down. If the Legislature had, in the act before us, in so many words authorized what the plaintiff has done, without any notice to the company, it \\\"would be difficult to sustain the constitutionality of the statute. For the effect would be the imposition of an excessive fine: Const., Art. 1, sec. 16. But the Legislature had no such intention, and we shall not press the language used so as to do indirectly what could not, perhaps, have been done directly. The statute, both upon reason and authority, admits of a different construction. We are of opinion, therefore, that only one penalty can be recovered up to the bringing of the suit.\\\"\\nIn our own state the Legislature sought, in 1880, to secure from each board of directors of mining companies a monthly balance sheet, by authorizing an action against the directors by a stockholder for liquidated damages of $1,000, in case they failed to make the report. In Loveland v. Garner (1887), 71 Cal. 541 [12 P. 616], the plaintiff endeavored to obtain a judgment for $7,000 because the defendants, for seven separate months, had failed to furnish the required balance sheets. The gist of the court's decision is found in these sentences (p. 543) : \\\"It will be perceived that this act is in its nature penal, and does not specifically declare that for each failure to comply with its requirements a penalty may be recovered. Nor does it declare that each refusal or neglect of that kind shall render the directors liable for a penalty. It would therefore seem that under its provisions the stockholder or stockholders might, at their election, either proceed against the directors for a single delinquency, or might forbear to do so until more than one dereliction of duty on the part of their trustees (so to speak) had occurred; but in neither event could more than one penalty be recovered.\\\" (See also Schofield v. Doray (1891), 89 Cal. 55, 57 [26 P. 606].)\\nThe cases we have reviewed are not recent, but their sound sense still gives them validity, and gives emphasis to the omission of the words \\\"each and every\\\" from our statute. In the first three of these cases, particularly, there was an endeavor to bring about the enforcement of laws passed for the benefit of large numbers of the public by giving the public some inducement to assist in their enforcement. The danger of a construction which made a racket out of law enforcement, rather than a means to it, was seen as real, not just an argument without the validity of experience. One \\\"penalty\\\" only was held to be provided for, in the absence of express words indicating a clear legislative intent that they should be cumulative. It is our conclusion, then, that the Congress did not intend, in the section which applies to the case before us, to authorize an overcharged customer or tenant to bring an action for more than $50 except in the event that the triple amount of the overcharge exceeded $50, in which case the judgment should be for three times the amount unlawfully exacted.\\nIn the case before us, in each of six months, $6 was demanded and received over the established rent ceiling, a total of $36. The judgment of the trial court is, therefore, modified by striking the figure \\\"300.00\\\" from between the dollar sign and the word \\\"damages\\\" and inserting in lieu thereof the figure \\\"108.00.\\\" It is further modified by reducing the sum allowed as attorney fees from $60 to $50. As so modified, the judgment is affirmed, appellant to have her costs of appeal.\\nShaw, P. J., and Kincaid, J. pro tern., concurred.\"}"
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+"{\"id\": \"4432163\", \"name\": \"THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; EMILE AUBERT THOMPSON, Real Party in Interest\", \"name_abbreviation\": \"People v. Superior Court\", \"decision_date\": \"1971-04-20\", \"docket_number\": \"Civ. No. 29345\", \"first_page\": \"811\", \"last_page\": \"819\", \"citations\": \"16 Cal. App. 3d 811\", \"volume\": \"16\", \"reporter\": \"California Appellate Reports, Third Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T00:41:10.506923+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; EMILE AUBERT THOMPSON, Real Party in Interest.\", \"head_matter\": \"[Civ. No. 29345.\\nFirst Dist., Div. Four.\\nApr. 20, 1971.]\\nTHE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; EMILE AUBERT THOMPSON, Real Party in Interest.\\nCounsel\\nLouis P. Bergna, District Attorney, and Leo F. Himmelsbach, Deputy District Attorney, for Petitioner.\\nNo appearance for Respondent.\\nWhite, Cruikshank & White and Clinton W. White for Real Party in Interest.\", \"word_count\": \"3157\", \"char_count\": \"18060\", \"text\": \"Opinion\\nRATTIGAN, J.\\nThe People seek prohibition to restrain the transfer of a murder prosecution from Santa Clara County pursuant to an order of respondent court granting a defense motion for a change of venue from that county. We have concluded (1) that the People may properly pursue extraordinary relief in this court and (2) that, under the circumstances hereinafter recounted, an appropriate writ must issue.\\nThe murder charge arises from a shooting in which Richard Huerta was killed in San Jose on August 6, 1970, while on duty as an officer of that city's police department. Shortly after the shooting, real party in interest Emile Aubert Thompson (hereinafter \\\"defendant\\\") was arrested and charged with Officer Huerta's murder. After defendant had been held to answer in respondent court, and had been arraigned therein, he moved for a change of venue, pursuant to Penal Code sections 1033 and 1034, upon the ground that a fair and impartial trial could not be had in Santa Clara County. Respondent court having granted the motion, the People commenced the present proceeding.\\nThe first question pertains to the People's standing to pursue this proceeding. The decisions dealing with the pretrial right to appellate review of criminal venue orders have recognized that a defendant may challenge an order denying a change of venue by seeking an appropriate extraordinary writ in a higher court (Maine v. Superior Court (1968) 68 Cal.2d 375, 378-381 [66 Cal.Rptr. 724, 438 P.2d 372]; Fain v. Superior Court (1970) 2 Cal.3d 46, 51, 55 [84 Cal.Rptr. 135, 465 P.2d 23]; Smith v. Superior Court (1969) 276 Cal.App.2d 145, 147, 151 [80 Cal.Rptr. 693]; Clifton v. Superior Court (1970) 7 Cal.App.3d 245, 248-249, 255 [86 Cal.Rptr. 612]; Lansdown v. Superior Court (1970) 10 Cal.App.3d 604, 606, 610 [89 Cal.Rptr. 154]; see People v. Tidwell (1970) 3 Cal.3d 62, 68 [89 Cal.Rptr. 44, 473 P.2d 748]), but none holds that the People have an equivalent right where the trial court has granted a change of venue pursuant to a defense motion therefor. Relying upon such lack of authority, and upon the fact that Penal Code section 1033 gives to the defendant alone the right to move for a change of venue, defendant contends that a writ should be denied herein because the People are without standing to seek it.\\nWe disagree. The People have no right to move for a change of criminal venue because Penal Code section 1033 vests that right in the defendant alone (Jackson v. Superior Court (1970) 13 Cal.App.3d 440, 442-444 [91 Cal.Rptr. 565]), as a result of calculated selectivity on the part of the Legislature. (Id., at p. 445.) But nothing in section 1033 may readily be construed as denying either party the right to seek appellate review of a criminal venue order, because the statute does not deal with that subject. Moreover, the related statute which is applicable to civil actions, but whose language contributed to the original decision giving a criminal defendant the right to seek such review, makes the extraordinary remedy available to both parties alike. (Code Civ. Proc., \\u00a7 400 [cited to this effect in Maine v. Superior Court, supra, 68 Cal.2d 375 at p. 379].)\\nThe People are ordinarily obligated to resist a defense motion for change of venue because the same Legislature,has vested jurisdiction to prosecute for a crime in the county in which it was committed. (Pen. Code, \\u00a7 777.) When they\\u2014the People\\u2014are placed in the position of resisting such motion, no reason appears that they should be denied the right to press their resistance by an appropriate proceeding in an appellate court, and nothing in the relevant statutes or in the Jackson decision (Jackson v. Superior Court, supra, 13 Cal.App.3d 440 at pp. 442-445) requires such denial. We therefore hold that the People have standing to challenge the present order in this proceeding.\\nThe same reasoning requires that the People seek appellate review by petitioning a higher court for an appropriate extraordinary writ. The present petition is styled as seeking \\\"prohibition,\\\" and its prayer, in part, is for a writ \\\"restraining\\\" respondent court \\\"from taking any further steps or proceedings to transfer the case to another county.\\\" Designation of the proceeding as seeking \\\"prohibition\\\" obviously misses the mark: for one thing, the quoted portion of the prayer would prevent the challenged order's execution without disturbing the order itself. The prayer goes on, however, to ask that \\\"the order granting a change of venue be set aside.\\\" We therefore treat the petition as seeking mandate to the just-quoted effect, and appropriate ancillary directions to the trial court. For the reasons next stated, we order a writ of mandate issued.\\nDefendant's motion for change of venue was made, and his affidavit and other documents in support thereof were filed, in open court. After the motion had been argued by both sides, the trial court discussed it at length; because the net effect of the court's remarks are decisive of our disposition, we set forth the remarks in full. After argument by counsel, the court stated as follows:\\n\\\"I happen to be one person who resides in this county who never saw any newspaper articles. I was on a camping trip when this whole thing took place, so I haven't had time yet to read them, which I will do before I rule on the motion. From my own personal observations on the bench in this county, trying jury cases in the last four years, as a practicing attorney here and other parts of the state before that, I think there is no question but what the defendant can get a fair trial here. The population of this county is urban and metropolitan, and forty years ago in this county, a case like this would have incited people, a substantial segment who would be enraged. That doesn't take place any more. I never had trouble getting a jury that I thought was impartial, even in cases where there has been quite a bit of publicity. In the first place, in this county, this is my own opinion and I probably had as much of this as anybody, there is a segment of the community that doesn't read any paper. This is about 20 or 30 percent of the population who don't subscribe to any paper. They don't buy them. They don't watch the news on TV. They don't listen to the news on the radio. You wonder how do they know what is going on. The answer is they don't know. And then the rest of the people, if they read stories like this, most of them forget the stories and even if they recall them and they want to follow the case, it is usually more from a standpoint of curiosity than trying to get even, revenge or hostility or any attitude like that.\\n\\\"This county does have slightly over a million people, as you indicated in your affidavit. I don't think there is any problem in getting a jury that is impartial with the extensive voir dire you subject them to in a case of this type. I think there is no problem, but the question is not actual prejudice. The Supreme Court says the defendant doesn't have to show actual prejudice, and as far as the trial judge's personal knowledge of the community and newspapers and jurors are concerned and the trial judge's experience, the Supreme Court says in so many words they pay no attention to that. The trial judge's ruling, they pay no attention to that. The Supreme Court is going to decide this on the basis of the cold record strictly. That is what they say they are going to do, and that is what they have been doing. That is the only thing they are going to consider. The defendant does not have to show actual prejudice. He doesn't have to make any showing than by a preponderance of the evidence. All he must do is raise a reasonable likelihood that an impartial trial cannot be had by the papers he files. The question is not for me to decide. All I am doing is guessing as to what the Supreme Court is going to decide because it is a question of fact, but it is different from any other question of fact that the trial court decides. The trial court's finding of fact is of no importance to the Supreme Court on this question. They say that. It is not a question of law. I can predict what they are going to say the law is because I can look at what they said the last time. And if I deny the motion and we have a trial, it is going to be a long trial and an expensive trial and the Supreme Court says it makes no difference whether they get the issue on the change of venue before or after the trial. They are not going to give any point to either side because of the difference, and they are just as willing to set aside a conviction after-wards for the same reason as they will on the ruling on the petition for a writ beforehand.\\n\\\"So what I am doing is deciding whether or not it is worth spending all the money, substantial cost to the county and defendant's attorney also\\u2014 he has got his own time involved in it\\u2014against the possibility that the Supreme Court might decide on the basis of the papers in front of me that a change of venue should be granted. It is a question I have to decide. So I am going to look at this matter further and come back at 1:30 [P.M.].\\\"\\nAfter a midday recess, and without further discussion by counsel or other proceedings, the trial court continued:\\n\\\"I am going to grant the motion. I am not granting it because I think there is any showing of prejudice in this county. I don't think there is. I think the defendant could get a fair trial in this county. The kinds of people that are called for jury service in this county, regardless of this publicity, would give the defendant a fair trial, more so than you can get anywhere on any kind of a case. Publicity in this case have [>zc] been almost entirely confined to a period of two days from the time of the offense. . . .\\n\\\"The thing that bothers me is in reading the last two Supreme Court decisions on this subject, People against Tidwell by a divided court, the four judge majority decided that, People against Tidwell is still a majority, and the very strong statement about their policies on this type of a motion. In that case, plus the Fain case in the previous volume of the reports, they indicate that the size of the population in the county is not determinative, but that they are more scrupulous in granting these motions in a death penalty case than in other cases, that they will give no weight whatever to the ruling of the trial judge. If I were to deny the motion under the established procedure now, the defendant would have a right to apply for a writ. . . . Suppose he doesn't and we have a trial which is going to be a lengthy trial as things go and expensive, expensive to both sides, does the defendant lose any ground or standing to raise the point on appeal because he failed to apply for a writ?\\n\\\"The Tidwell cases says he does not, that they will grant the writ in either case before or after conviction if they would have granted it in the first instance, if the Supreme Court judges had been sitting here today as a trial court. So all I am trying to \\\"do is predict what they possibly might do, and I am not willing to gamble the time involved and the expense involved on both sides against the possibility that we might be wasting our time. So the motion is granted.\\\"\\nIn this discourse, the trial court correctly observed that a criminal defendant moving for a change of venue is not required to make a specific showing of prejudice, but will establish his right to a change if he shows \\\"even a 'reasonable likelihood' that he will not receive a fair trial\\\" in the prosecuting county. (People v. Tidwell, supra, 3 Cal.3d 62 at p. 69; Maine v. Superior Court, supra, 68 Cal.2d 375 at p. 383.) The court was also correct in its stated impressions that this standard will be applied upon appellate review of an order denying a change of venue, whether accorded in a pretrial writ proceeding or on appeal from a judgment of conviction (People v. Tidwell, supra); that the defendant's failure to pursue a pretrial writ does not preclude him from raising the venue issue on appeal from the judgment (ibid., at pp. 68-69); and that in either instance the reviewing court will determine de novo, from the evidence presented in the trial court, whether the \\\"reasonable likelihood\\\" of an unfair trial has been shown. (Maine v. Superior Court, supra, at p. 382 [pretrial mandate proceeding]; People v. Tidwell, supra, at pp. 68, 69 [appeal].) But the fact that the appellate court will review the evidence de novo,, and the corollary that a trial court's decision on a venue motion will not command the same weight as action taken within conventional limits of its discretion (see Maine v. Superior Court, supra, at pp. 381-382), do not relieve the trial court of its duty to rule on the motion in accordance with the standards prescribed by case law.\\nThat duty was not discharged here. The trial court's full discourse makes it abundantly clear that the court did not grant the motion because it found from defendant's evidence a \\\"reasonable likelihood\\\" that he could not receive a fair trial in Santa Clara County. That assessment was never made: the motion was granted for the stated reason that the court was unwilling to \\\"gamble the time and the expense involved\\\" in light of the possibility that an appellate court would disagree with an order denying the motion on its merits. The court's action was erroneous because it in effect abdicated the decision-making function of the trial court to another, future forum. A trial court cannot do this in principle, and the prospect of a de novo review by a higher court does not permit it in practice.\\nThe action was also erroneous because it would have introduced a new\\u2014 and seemingly decisive\\u2014element in the consideration of a venue motion by a criminal defendant: i.e., the cost to be incurred by the prosecuting county in the event of appellate disagreement, on appeal from an ultimate judgment, with an order denying the motion. If this principle were valid, all such defense motions would necessarily be granted. The defendant's stake in the matter is his right to a fair and impartial trial, which is a \\\"requirement basic to our jurisprudence.\\\" (Maine v. Superior Court, supra, 68 Cal.2d 375 at p. 384.) The People have a reciprocal stake in the deliberations because they are entitled to have the defendant tried in the county where the crime was committed if he does not establish his right to trial elsewhere (Pen. Code, \\u00a7 777); the People are, in fact, required to do this because they have no right to seek a change of venue themselves. (Jackson v. Superior Court, supra, 13 Cal.App.3d 440 at pp. 443-445. See People v. Powell (1891) 87 Cal. 348, 354-361 [25 P. 481].) Both parties\\u2014the defendant and the People\\u2014are entitled to have a trial court pass upon a defense motion for change of venue on its merits; the stake of neither of them is properly to be outweighed by the economic consequences which might conceivably follow if one court, in the appellate scheme of things, disagrees with another. In other words, and in this context, a trial court is not to take into account the economic cost of its being wrong.\\nFor the foregoing reasons, the order granting defendant's motion cannot stand. The same reasons demonstrate that the trial court has never properly considered the motion by weighing the evidence and determining the \\\"reasonable likelihood,\\\" or not, that defendant cannot receive a fair and impartial trial in Santa Clara County. Accordingly, we will not examine that evidence in this proceeding; we decline to undertake, de novo, a function which was not performed in the first instance and which remains to be executed in accordance with law.\\nA peremptory writ of mandate will issue, directing respondent court to set aside its order granting the motion of real party in interest Emile Aubert Thompson for a change of venue and to reconsider the motion consistent with the views herein expressed.\\nDevine, P. J., and Christian, J., concurred.\\nIn two counts of a criminal complaint filed against him, defendant was charged\\\" with the officer's murder (Pen. Code, \\u00a7 187) and with the use of a firearm in its com mission. (Id., \\u00a7 12022.5.) An information filed in respondent court, after preliminary examination, similarly charged him in two separate counts.\\nIn the affidavit, defendant alleged that the slain officer was a popular and respected figure in the San Jose community, whereas defendant was a transient student and a \\\"stranger\\\" to the area. The affidavit also alleged, in detail, a course of pretrial publicity asserted to have been prejudicial to defendant in the community. The other documents in support of the motion, submitted as exhibits to the affidavit, were copies of various newspaper accounts discussing the crime, the victim, the defendant, and the course of the prosecution. As will appear, we do not reach the merits of defendant's motion in the present proceeding. Consequently the evidence mentioned need not be summarized further.\\nAt this point, and after further discussion with counsel, the trial court continued the cause for selection, at a later date, of a new county for trial. The People promptly filed their present petition; pending its disposition, we stayed further proceedings below.\\nThis is necessarily so because the nature of an appellate review is de novo. It is notably untrue, however, that\\u2014as the trial court put it\\u2014of \\\"[t]he trial judge's ruling, they [the Supreme Court] pay no attention to that\\\"; that \\\"[t]he trial court's finding of fact is of no importance to the Supreme Court on this question\\\"; or that \\\"they will give no weight whatever to the ruling of the trial judge.\\\"\"}"
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+"{\"id\": \"4452632\", \"name\": \"SAMUEL T. WESTWOOD et al., Respondents, v. SAMUEL B. FRANKLIN, Appellant\", \"name_abbreviation\": \"Westwood v. Franklin\", \"decision_date\": \"1946-12-09\", \"docket_number\": \"Civ. No. 15488\", \"first_page\": \"189\", \"last_page\": \"190\", \"citations\": \"77 Cal. App. 2d 189\", \"volume\": \"77\", \"reporter\": \"California Appellate Reports, Second Series\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T18:09:04.004829+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SAMUEL T. WESTWOOD et al., Respondents, v. SAMUEL B. FRANKLIN, Appellant.\", \"head_matter\": \"[Civ. No. 15488.\\nSecond Dist., Div. One.\\nDec. 9, 1946.]\\nSAMUEL T. WESTWOOD et al., Respondents, v. SAMUEL B. FRANKLIN, Appellant.\\nGordon W. Levoy and A. Albert Spar for Appellant.\\nMiller & Beck for Respondents.\", \"word_count\": \"345\", \"char_count\": \"2110\", \"text\": \"DORAN, J.\\nIn this action to quiet title and for declaratory relief plaintiff prevailed and defendant appeals.\\nThe facts briefly are as follows: In October, 1944, plaintiff purchased a residence occupied by defendant as a tenant. Following the purchase, plaintiffs' efforts to get possession were in vain; it appears from the record that an institution referred to as the O.P.A. complicated this procedure. Finally, plaintiff offered to sell the property to defendant; this was two or three months after the purchase and the offer was by letter written to defendant. Hearing nothing from defendant, plaintiff sold the property to one William A. Roach ; an escrow was opened in the bank to complete the transaction. In August 24,1945, upon learning of the sale, defendant wrote a letter to plaintiff accepting the offer made months before and notified the escrow holder of a claim of interest in the property. Defendant was still in possession.\\nAt the trial the court found against defendant on all issues. In particular, the court found that the ' offer was revoked by operation of law prior to its acceptance by the lapse of said unreasonable length of time between the making of said offer and its purported acceptance by defendant.\\\" Also, \\\"that there was never any valid binding contract between plaintiffs and defendants.\\\"\\nOn appeal, appellant argues that an unreasonable length of time had not elapsed; that the offer was still open; that certain evidence was received with regard to proceedings had before said O.P.A. and a few other objections on appeal that do not merit attention.\\nThe appeal is without merit, in fact frivolous. No citation of authority nor further consideration is necessary to justify the action of the trial court. The evidence is sufficient to sustain the findings and there are no errors in the record.\\nThe judgment is affirmed.\\nYork, P. J., and White, J., concurred.\"}"
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diff --git a/cal/4453814.json b/cal/4453814.json
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--- /dev/null
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+"{\"id\": \"4453814\", \"name\": \"EUREKA MILL AND LUMBER COMPANY (a Corporation), et al., Appellants, v. JENNIE E. ANDRES et al., Respondents\", \"name_abbreviation\": \"Eureka Mill & Lumber Co. v. Andres\", \"decision_date\": \"1914-10-20\", \"docket_number\": \"Civ. No. 1375\", \"first_page\": \"613\", \"last_page\": \"615\", \"citations\": \"25 Cal. App. 613\", \"volume\": \"25\", \"reporter\": \"California Appellate Reports\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T23:04:34.701828+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"EUREKA MILL AND LUMBER COMPANY (a Corporation), et al., Appellants, v. JENNIE E. ANDRES et al., Respondents.\", \"head_matter\": \"[Civ. No. 1375.\\nFirst Appellate District.\\nOctober 20, 1914.]\\nEUREKA MILL AND LUMBER COMPANY (a Corporation), et al., Appellants, v. JENNIE E. ANDRES et al., Respondents.\\nForeclosure of Mechanics\\u2019 Liens\\u2014'Claim of Abrogation of Original Contract bt Executed Oral Contract\\u2014Failure of Evidence to Show.\\u2014In this action to foreclose certain mechanics\\u2019 liens upon the real property of the defendant, it is held that the contention of plaintiffs that the original contract between the parties was abrogated by an executed parol agreement, providing for the erection of a different building, the cost of which, it was claimed, exceeded the sum of one thousand dollars and that, no memorandum of the latter contract being recorded or ever filed, judgment should have been directed to foreclose the liens upon the property for their full amount; and the further contention that the findings are contrary to the evidence, and inconsistent with, and repugnant to, each other, cannot be sustained.\\nAPPEAL from a judgment of the Superior Court of Alameda County. T. W. Harris, Judge.\\nThe facts are stated in the opinion of the court.\\nW. B. Rinehart, and H. S. Craig, for Appellants.\\nSamuels & Magnes, for Respondents.\", \"word_count\": \"1044\", \"char_count\": \"6317\", \"text\": \"LENNON, P. J.\\nThis is an action to foreclose certain mechanics' liens upon real property owned by the defendant. Judgment was rendered and entered for the plaintiffs, to the effect that the amount of their respective claims of lien should be prorated out of the sum of five hundred and fifty dollars, which the\\\" trial court found was the contract price for the erection of a dwelling-house pursuant to the terms of a written contract. Plaintiffs, being dissatisfied with the judgment, have appealed.\\nOriginally there were two independent actions instituted for the foreclosure of the liens in controversy, which for the purpose of trial were consolidated.\\nThe causes of action sued upon arose primarily out of the execution of the following contract:\\n\\\"The undersigned, W. H. Shaffer, agrees to construct a replica of a three-room bungalow on 14th Street, Oakland, on what is known as the Y. M. C. A. property, excepting as follows: the painting inside and out, the sewer; the same to be constructed on Jones Street, Oakland, for the sum of $550, and paid for upon conclusion of this agreement or contract.\\n\\\"Signed this 14th day of July, 1910.\\n\\\" (signed) W. H. Shaffer.\\n\\\" \\\" Jennie E. Andres. \\\"\\nIn the court below it was the plaintiffs ' contention that this contract was abrogated by an executed parol agreement providing for the erection of a different building, the cost of which, it was claimed, exceeded the sum of one thousand dollars, and that, as no memorandum of the latter contract was ever filed or recorded, judgment should have been directed, foreclosing the liens upon the property for their full amount. Upon the evidence adduced at the trial, the lower court, in its findings of fact, declared that the written contract was the only one entered into between the parties; and deduced the conclusion of law therefrom that the several lien claimants were limited in their recovery to the contract price therein stated. Counsel for plaintiffs attacks this finding as being contrary to the evidence, and inconsistent with and repugnant to other material findings.\\nBriefly stated, the evidence adduced upon the entire case discloses the following facts-: The defendant desired to erect a duplicate of a certain building on Fourteenth Street in the city of Oakland, and estimated that this could be done for the sum of five hundred and. fifty dollars. With that end in view she had several conversations with a contractor named W. H. Shaffer, which culminated in the execution of the contract above recited. Thereupon a rough plan of the building contracted for was made, and was submitted to the defendant for her approval by the contractor. The defendant discovered that a door had been omitted, and the plan was changed accordingly. The defendant had no further conversations with the contractor concerning the cost and construction of the building. The building was constructed according to the plan prepared by the contractor and approved by the defendant.\\nIn substance these are the facts and the only facts of the case; and the finding of the trial court that the building was erected pursuant to the terms of the written contract is therefore the only finding possible under the evidence.\\nIn support of the contention that the written contract was abrogated counsel for plaintiffs insists that the building as-erected was not in fact an exact replica of the Fourteenth Street house referred to in the contract; and in support of this contention relies upon the testimony of two lien claimants to the effect that certain differences existed between the two buildings. The cross-examination of these witnesses discredited, if it did not destroy, their testimony. As against their testimony the defendants produced an architect, apparently a disinterested witness, who testified that he made an inspection of both buildings, and that one was a copy of the other. All of the testimony adduced upon the entire case tends to the conclusion that the building was erected pursuant to the terms of the written contract, and that it was a replica of the building referred to therein. In our judgment there is no evidence of any kind tending to show that the contract was in any manner or at any time departed from, or that a single alteration was made. The testimony of the contractor's brother that certain conversations were had relative to the building after the execution of the contract was subsequently denied by him when the trial court drew his attention to his conflicting testimony; and he then admitted that all conversations relative to the building were had prior to the execution of the contract. The contractor himself was not called as a witness in the case. The claim that the contract was changed by mutual consent is supported only by the statement of the counsel for the plaintiffs.\\nThere is no merit in the claim that the remaining findings in the case are inconsistent and repugnant in themselves.\\nThe judgment appealed from is affirmed.\\nKerrigan, J., and Richards, J., concurred.\\nA petition for a rehearing of this cause was denied by the district court of appeal on November 19, 1914.\"}"
\ No newline at end of file
diff --git a/cal/4469109.json b/cal/4469109.json
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index 0000000000000000000000000000000000000000..44bc601d72b599b8b36b45b335144efa588f7841
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+"{\"id\": \"4469109\", \"name\": \"JAMES W. WOODS, Plaintiff and Respondent, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant and Appellant\", \"name_abbreviation\": \"Woods v. Insurance Co. of North America\", \"decision_date\": \"1974-03-27\", \"docket_number\": \"Civ. No. 31126\", \"first_page\": \"144\", \"last_page\": \"153\", \"citations\": \"38 Cal. App. 3d 144\", \"volume\": \"38\", \"reporter\": \"California Appellate Reports, Third Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T23:23:48.373173+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JAMES W. WOODS, Plaintiff and Respondent, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant and Appellant.\", \"head_matter\": \"[Civ. No. 31126.\\nFirst Dist., Div. Two.\\nMar. 27, 1974.]\\nJAMES W. WOODS, Plaintiff and Respondent, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant and Appellant.\\nCounsel\\nPopelka, Allard, Humphreys, Williams & Stenberg and Dean E. Stenberg for Defendant and Appellant.\\nTheodore W. Wolcott, Cartwright, Saroyan, Martin & Sucherman and Robert E. Cartwright for Plaintiff and Respondent.\", \"word_count\": \"3694\", \"char_count\": \"23244\", \"text\": \"Opinion\\nTAYLOR, P. J.\\nOn this appeal by Insurance Company of North America, the insurer, from a judgment in favor of James W. Woods, the injured passenger, declaring that its aircraft liability policy was in full force and effect at the time of the accident, the only question is the construction of the phrase \\\"properly certificated and rated for the flight,\\\" in Endorsement No. 2. For the reasons set forth below, we have concluded that the judgment must be affirmed.\\nThe facts are not in dispute and were found by the trial court as follows: On May 16, 1962, the insurer issued to the owner, Stephen W. Johnson, a policy providing public liability coverage for injuries sustained by a person in the operation of the insured aircraft, an Aero 560 Commander. On September 25, 1962, the passenger was injured in a crash that occurred while the aircraft was piloted by John Gregg with the knowledge and consent of the owner. At the time of the accident, Gregg was an experienced pilot, with a current Class 3 pilot license that qualified him to fly the multi-engine aircraft involved in the accident. Gregg had .12 years' flying experience and had logged 8,500 hours of total flight time, including 2,000 hours of flight time in Aero Commander aircraft. However, unknown to Gregg or his passenger, Gregg's medical certificate had expired about 25 days before the accident. Gregg's failure to renew his medical certificate had nothing to do with the accident and was mere inadvertence on his part; at all times before and after the accident, Gregg was in excellent physical health and condition and passed all prior and subsequent medical examinations.\\nThe passenger filed his action for personal injuries sustained against Gregg and the insurer. The insurer refused to defend on grounds of no coverage. Gregg defaulted and the passenger subsequently commenced this action for a summary judgment against the insurer.\\nThe largely printed policy' contained Exclusion (a), set forth in full below, which was eliminated from the policy by Endorsement No. 1, that provided:\\n\\\"Federal Regulations Endorsement\\n\\\"In consideration of the premium for which this policy is written, it is agreed that paragraphs (1), (2), (3) and (4) of Exclusion (a) are deleted in their entirety.\\n\\\"Nothing herein contained shall vary, alter or extend any provision or condition of the policy other than as above stated.\\\" (Italics supplied.)\\nThis controversy concerns the proper construction and meaning of typewritten Endorsement No. 2 that provided: \\\"It is agreed that coverage provided by this policy while the aircraft is in flight shall not apply unless the pilot in command of the aircraft is Sehoy Dickson Turner, Maurice Smith or any other private or commercial pilot who is properly certificated and rated for the flight and the aircraft and has logged a minimum of 1,500 first pilot hours of which at least 500 hours have been in multi-engine aircraft and at least 25 hours in Aero Commander aircraft.\\n\\\"Nothing herein contained shall vary, alter or extend any provision or condition of the policy other than as above stated.\\\" (Italics supplied.)\\nThe insurer maintains that the phrase \\\"properly certificated and rated for the flight and the aircraft\\\" clearly includes the current medical certificate required by the regulations of the Federal Aviation Agency, set forth below. In sum, the insurer argues that since Gregg did not have the current medical certificate required by FAA regulations, set forth above, in addition to his current pilot's license, the pilot in command of the Aero Commander was not \\\"properly certificated and rated for\\\" the flight,\\\" and the coverages afforded under its policy were never in effect. We cannot agree.\\nThe insurer might have been on more solid ground if it had retained Exclusion (a) originally printed in the policy with its subparagraph (4) (quoted in fn. 3 above) that specifically referred \\\"to any person not properly certificated by the required governmental authority.\\\" However, since in consideration of the payment of an additional premium, Exclusion (a) was deleted in its entirety by Endorsement No. 1, we cannot agree with the insurer that Endorsement No. 2 (executed at the same time as the policy and Endorsement No. 1) restored as to pilots in command of the aircrafts the exclusion of paragraph (4) of Exclusion (a).\\nFurthermore, we note while two separate documents are required by the FAA, the pilot's certificate or license and the medical certificate, the insurer chose to use in both Endorsements 1 and 2 the ambiguous term \\\"properly certificated.\\\" If that term included the meaning that the pilot must hold in addition to the license a current medical certificate, the insurer should have specifically so stated (cf. Berlanti v. Underwriters at Lloyd's London, N.Y. S.Ct. November 30, 1964; 9 Avi. Cas. 17, 420), wherein the court so stated, after holding that the phrase \\\"flown by a licensed pilot\\\" did not also include the current medical certificate required by the FAA regulations.\\nIt is axiomatic that ambiguous terms used in an insurance policy are construed against the draftsman, and that exclusions must be strictly construed against the insurer (Roach v. Churchman (8th Cir. 1970) 431 F.2d 849; Wildman v. Government Employees' Ins. Co., 48 Cal.2d 31 [307 P.2d 359]; Civ. Code, \\u00a7 1644, 1645). Furthermore, as noted in Royal Indemnity Co. v. John F. Cawrse Lumber Co. (D.Ore. 1965) 245 F.Supp. 707, at page 711: \\\"Of more than ordinary significance, on the probe to discover the true intent of the parties, is the action of the plaintiff in eliminating from the provisions of the original policy, the only language that specifically dealt with an expired certificate or the operation of the aircraft by a pilot in violation of his civil aeronautics certificate. Words deleted from a contract may be the strongest evidence of the intention of the parties. One Thousand Bags of Sugar v. Harrison, 53 F. 828 (3d Cir. 1893).\\\"\\nIn Royal Indemnity, as here, the policy applied to the aircraft in flight only while being operated by a pilot holding a valid and current private or commercial pilot certificate, the pilot had such a certificate but the last medical certificate issued to him had expired before the accident, and Endorsement No. 6 of the policy (like Endorsement No. 1 here) eliminated an exclusion that specifically related to \\\"approved\\\" pilots whose \\\"certificate has been restricted, revoked, or suspended or has expired\\\" (fn. 8 at p. 711). The court in construing the entire policy in favor of the insured and holding that the elimination of the exclusion broadened the coverage of the policy, said at page 711: \\\"We must not confuse the language of this endorsement with broad exclusions, limitations or exceptions, employed in some policies, such as 'operation in violation of law,' or 'operation in violation of regulations.' [Citation.] Without question, the plaintiff could have selected and used that language in the policy. It chose, however, to be precise in the language used in the endorsement and limit the pilot's qualifications to a valid current operator's license. Such language must be strictly construed and by no stretch of the imagination can this language be enlarged to include 'a valid medical certificate' or a 'violation of law or regulations.' \\\"\\nIn rejecting the insurer's contention that the controlling language was a general provision referring to an \\\"approved pilot\\\" with a valid \\\"current pilot certificate,\\\" the court said at page 712: \\\"True enough, the word 'valid' means legal or lawful. Even so, I do not believe that this descriptive word adds anything to the meaning of current pilot's certificate. The certificate was legal and valid in and of itself and without reference to the medical certificate. The phrase current pilot's certificate would imply a valid certificate. The certificate either exists or its does not exist. If there is ambiguity in the phrase, the burden of enlightenment falls on the insurer. Its only answer is that by implication the requirement of a valid medical certificate should be read into the language current pilot's certificate. I am drawn to the conclusion that nothing less than rewriting the policy would accomplish that result.\\\"\\nSimilarly, in Ranger Insurance Company v. Culberson (5th Cir. 1971) 454 F.2d 857, the court specifically noted the broadening effect on coverage by the deletion of a standard exclusion, and held that a person may be insured against activities otherwise prohibited by the federal air regulations. We think the following reasoning of Ranger, at pages 864 and 865, is particularly applicable here to the insurer's argument as to the broad reading of the terms \\\"properly certificated\\\" of Endorsement No. 2: \\\"If Ranger wishes us to read the general term 'proper' as requiring that any transgression of an FAA regulation should operate as an 'impropriety' of sufficient intent to suspend coverage, then our declining to read a general word so broadly should come as no surprise, for we have declined to do so before. [Citations.] Words of exclusion in insurance policies should be given small tolerance when- insurance companies choose to use words of imprecision. Indeed, the logic of Ranger's argument for exclusion would be to engraft as exceptions to coverage the violation of every proscribed peccadillo of FAA regulations. The cases cited by Ranger in its support go to the heart of coverage, and it cannot be that every impaired capillary blocks coverage. Almost all airplane accidents involve some violation of the Federal Aviation Regulations. Even 'careless flying,' or simple negligence, is a violation. [Citation.] The Roach case construed a similar argument:\\n\\\" 'Applying this analysis, the insuring agreements become illusory in effect since few accidents occur without the aircraft's owner or pilot violating one or more of the very detailed regulations promulgated by the Federal Aviation Administration.' 431 F.2d at 853.\\n\\\"To read into the general word 'proper' all violations of the regulations would be to hoodwink most insurance purchasers, for it would make a nullity of most coverage. Purchasers believe, and with good reason, that they have bought insurance to protect themselves from precisely those degrees of negligence or outright carlessness that FAA regulations might condemn. Insurance is procured to protect the violator, and every violation cannot nullify coverage. Any intent to use general words as a blunderbuss and every - single regulation as birdshot cannot be reasonably upheld. If an insurance company has an intent to deny coverage in a specific set of circumstances, then it should so delineate. [Citation.]\\\"\\nIn affirming the lower court's decision in Ranger, the Fifth Circuit (at pp. 863 and 864) cited with approval Roach v. Churchman (8th Cir. 1970) 431 F.2d 849, where coverage was sustained notwithstanding the pilot's violation of the federal aviation regulation governing night flight with passengers without the required experience and a policy provision exclud ing coverage where the pilot violated his FAA certificate. In reversing the lower court, the Eighth Circuit said at page 851: \\\"In our view, the trial court gave these questioned exclusionary provisions an overbroad construction contrary to the well-settled general rule that exceptions, limitations and exclusions to insuring agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations upon that coverage in clear and explicit terms. This court follows that rule . . . .\\\" (Italics ours.)\\nIn response to an argument similar to that raised here by the insurer (namely, that the pilot's technical violation of the FAA regulation requiring a current medical certificate prevented the policy coverage from going into effect), the Eighth Circuit, at page 852, distinguished between the FAA's operating safety rules, such as the one relating to night flights, and conditions that limited the pilot's certificate, and held at pages 852 and 853: \\\"While the pilot's act of carrying a passenger at night in apparent contravention of \\u00a7 61.47 may have been negligent or even intentional, it did not violate any express term of his pilot's certificate.\\\"\\n\\\"Applying this analysis, the insuring agreements become illusory in effect since few accidents occur without the aircraft's owner or pilot violating one or more of the very detailed regulations promulgated by the Federal Aviation Administration.\\\" (P. 853.)\\nThis analysis is in accord with the distinctions made in the FAA regulations between a current pilot's certificate and a current medical certificate, noted in Royal Indemnity, supra, at page 709. As therein noted, while the pilot's certificate had no specific expiration date, the medical certificate had a definite expiration date. This distinction was also noted in Berlanti, supra, where the court held that expiration of the medical certificate regulation could not automatically revoke a valid pilot's certificate, since the applicable law required notice and a hearing prior to the revocation of the pilot's certificate. Also in accord is Insurance Company of North America v. Maurer (Tex. 1974) 505 S.W.2d 931, where the court, following the reasoning of the Roach and Berlanti cases, held that the phrase \\\"valid pilot's certificate with ratings and certificates appropriate for the flight . as required by the Federal Aviation Administration\\\" did not also require a valid medical certificate.\\nThus, it follows that the term \\\"properly certificated\\\" as used in Endorsement No. 2 of the subject policy does not clearly or automatically exclude coverage because Gregg's medical certificate had expired before the accident in which Woods was injured. Keeping in mind the distinction between the FAA regulations requirements of a current medical certificate and pilot's license or certificate, a reading of the entire policy here in issue readily indicates that Endorsements No. 1 and No. 2 dealt with two separate subjects: Endorsement No. 1, entitled \\\"Federal Regulations Endorsement\\\" related to the elimination of the specific FAA regulations mentioned in Exclusion (a), e.g., airworthiness, night flying, etc. When Endorsement No. 2 is read in its entirety and in context with the language of Exclusion (a), it is readily apparent that Endorsement No. 2 deals specifically with the training and experience of the pilots who are to command the insured aircraft. Significantly, the endorsement refers to the specifically named pilots without any qualifications as to their experience, rating or certification. The endorsement then continues to spell out for unnamed pilots in command the qualification of \\\"properly certified and rated\\\" and sets forth the minimum number of pilot hours required. In this context, \\\"properly certified and rated\\\" when read with the immediately following phrase \\\"for the flight and aircraft\\\" can only reasonably be interpreted to refer to the pilot's flight proficiency and skill. In the FAA regulations, the term \\\"rating\\\" refers specifically to the types of aircraft, or equipment category or a class or a particular skill such as instrument rating, multi-engine rating, etc. Thus, the term \\\"properly certificated\\\" can only reasonably mean the pilot's certificate and license; it cannot reasonably be construed to also include the separate pilot's medical certificate. We think the trial court properly concluded that the insurer's policy afforded coverage for the personal injuries sustained by the passenger.\\n. As the United States Circuit Court so aptly said in Ranger, supra, at page 867: \\\"The clumps of words in an insurance policy might seem like so much insignificant jabberwocky to those who follow insurance law, perhaps worse to those who only stumble into the field. Jabberwocky it might be. Insignificant it is not. On those clumps of words rests the intent of the insurance coverage. Some insurance policies, their riders, exclusions, folds-in and folds-out, and appendages, are festooned in such ways that mechanical knowledge is a help in unfolding and laying them out so that the policies are in physically readable form. An insured, who is presented with forms and discussion in widely varying degrees of clarity, is entitled to know the precise nature of the insurance coverage that his premiums are buying. It is all too clear that contract language, while at times a great explainer, is at times a great obscurer. It is incumbent upon insurance companies to state clearly the perimeters of their coverage to those who entrust their security to them.\\\" In the hope that that clarity might eventually come to pass, we affirm this judgment.\\nKane, J., and Rouse, J., concurred.\\nUnder the then applicable regulations, 14 Code of Federal Regulations, section 61.43, subdivision (a)(3), the medical certificate expired \\\". . . at the end of the last day... of the 24th month after the month in which it was issued .\\\"\\nA prior property damage action by the owner against the insurer in the federal district court (N.D. Cal., So. Div., No. 41644) that resulted in a judgment in favor of the insurer, was held not res adjud\\u00edcala in the instant action between different parties.\\n\\\"This Policy does not apply:\\n\\\"(a) Under Coverages A, B and C, while the aircraft is in flight under any of the following circumstances with the consent and knowledge of the insured or any executive officer or partner thereof;\\n\\\"Under Coverages D, E, F, G and H, to any insured while the aircraft is being operated under any of the following circumstances with the knowledge and consent of such insured or of any executive officer or partner thereof;\\n\\\"(1) in violation of the applicable airworthiness certificate as approved by the Federal Aviation Agency,\\n\\\"(2) under circumstances requiring a special permit or waiver from the Federal Aviation Agency, even though such waiver or permit is granted unless this policy is endorsed to cover such operations,\\n\\\"(3) in violation of Federal Regulations for Civil Aviation applicable to:\\n\\\"(a) Night Flying.\\n\\\"(b) Minimum Safe Altitudes,\\n\\\"(c) Student Instruction,\\n\\\"(d) Maintenance, Alterations, Repairs or Inspection,\\n\\\"(e) Instrument Flying,\\n\\\"(f) Acrobatic Flying,\\n\\\"(4) by any person not properly certificated by the required governmental authority for such operation, or in violation of such certificate during such operation.\\\" (Italics supplied.)\\n14 Code of Federal Regulations, section 61.3(a), so far as pertinent, provides:\\n\\\"Pilot certificate. No person may act as a pilot in command or in any other capacity as a . . . pilot flight crewmember of a civil aircraft of U.S. registry, unless he has in his personal possession a current pilot certificate issued to him under this part.\\\" (Italics supplied.)\\n14 Code of Federal Regulations, section 61.3(c), so far as pertinent, provides:\\n\\\"Medical certificate. Except for glider pilots piloting gliders, no person may act as pilot in command or in any other capacity as a required pilot flight crewmember of an aircraft under a certificate issued to him under this part, unless he has in his personal possession an appropriate current medical certificate issued under Part 67 of this chapter.\\\" (Italics supplied.)\\nThe insurer urges that Berlanti as a decision of a lower court is not of sufficient dignity to be of precedential value to this court. Neither this court (nor any other) can afford to ignore a well reasoned written decision of any other court on a similar matter. The insurer also erroneously argues that the controlling authority is Bequette v. National Insurance Underwriters, Inc. (9th Cir. 1970) 429 F.2d 896. In Bequette, however, the exclusion provided that the policy applied only while being operated by the pilot named or designated \\\"while holding a pilot certificate . . . with appropriate ratings required for the flight involved.\\\" The pilot did not have the required rating to carry passengers and the court, finding no ambiguity, upheld the exclusion. Other authorities cited by the insurer are equally inapposite as they either involved clear policy violations (Underwriters at Lloyd's of London V. Cordova Airlines (9th Cir. 1960) 283 F.2d 659; Roberts v. Underwriters at Lloyd's London (D.Idaho 1961) 195 F.Supp. 168; Lineas Aereas Colombianas Exp. v. Travelers Fire I. Co. (5th Cir. 1958) 257 F.2d 150; Littrall v. Indemnity Insurance Co. of North America (7th Cir. 1962) 300 F.2d 340); or other issues as in Foster v. United States Aviation Underwriters, Inc. (D.C.Mun.App. 1968) 241 A.2d 914 (where the question was whether the agent had misrepresented the coverage); Des Marais v. Thomas (Sup.) 147 N.Y.S.2d 223, affirmed 1 App.Div.2d 1002 [153 N.Y.S.2d 532] (holding that the 'pilot\\\" as distinguished from the co-pilot had to be specifically named); and Sabella v. Wisler, 59 Cal.2d 21 [27 Cal.Rptr. 689, 377 P.2d 889] (solely concerned with questions of proximate cause, not in issue here).\\nThe parties herein so agreed below.\\nThe fact that the terms \\\"properly certificated\\\" as used in subparagraph (4) of Exclusion (a) are subject to the same ambiguity as that phrase in Endorsement No. 2 need not further concern us here since the parties agree that all of the provisions of Exclusion (a) were eliminated from the policy by Endorsement 1.\\nOriginally, the named pilots were Sehoy Dickson Turner and Maurice Smith; Stephen H. Johnson was added as a named approved pilot under Endorsement No. 2 by Endorsement No. 7 on June 21, 1962.\\nFor example, 14 Code of Federal Regulations, section 61.3(f) refers separately to instrument, helicopter and airship rating; section 61.1 refers to aircraft and instrument ratings; section 61.5 reads: \\\"(a) An application for a certificate and rating,' or for an additional rating, under this part is made on a form and in a manner prescribed by the Administration.\\n\\\"(b) An applicant who meets the requirements of this part is entitled to an appropriate pilot or flight instructor certificate with appropriate aircraft ratings. Additional aircraft category, class, and type ratings, and instrument ratings for which the applicant is qualified, are added to his certificate.\\\" (Italics ours.)\\nWe are aware that in Ohio Casualty Insurance Company v. Heaney (N.D.I11. 1964) 229 F.Supp. 30, the court assumed, without explanation, that a pilot's medical certificate was included in the phrase \\\"proper certificate(s) as required by the Civil Aeronautics Authority.\\\" In the absence of any discussion concerning the proper construction of policy provisions since the court held the exclusion inapplicable (as a typographical error showed the pilot to have a valid certificate), we need not dignify Heaney with further discussion (cf. Royal Indemnity Co. v. John F. Cawrse Lumber Co., 245 F.Supp. 707, at p. 710).\"}"
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+"{\"id\": \"4472939\", \"name\": \"THE PEOPLE, Plaintiff and Respondent, v. FLOYD EDWARD FLORES, Defendant and Appellant\", \"name_abbreviation\": \"People v. Flores\", \"decision_date\": \"1976-02-09\", \"docket_number\": \"Crim. No. 26900\", \"first_page\": \"118\", \"last_page\": \"123\", \"citations\": \"55 Cal. App. 3d 118\", \"volume\": \"55\", \"reporter\": \"California Appellate Reports, Third Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T18:11:23.429546+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PEOPLE, Plaintiff and Respondent, v. FLOYD EDWARD FLORES, Defendant and Appellant.\", \"head_matter\": \"[Crim. No. 26900.\\nSecond Dist., Div. Two.\\nFeb. 9. 1976.]\\nTHE PEOPLE, Plaintiff and Respondent, v. FLOYD EDWARD FLORES, Defendant and Appellant.\\nCounsel\\nMichael F. Shapiro, under appointment by the Court of Appeal, for Defendant and Appellant.\\nEvelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Norman H. Sokolow and Howard J. Schwab, Deputy Attorneys General, for Plaintiff and Respondent.\", \"word_count\": \"1711\", \"char_count\": \"9866\", \"text\": \"Opinion\\nROTH, P. J.\\nAppellant pleaded not guilty and not guilty by reason of insanity to assault with a deadly weapon (Pen. Code, \\u00a7 245, subd. (a)). In the first phase of a bifurcated trial (Pen. Code, \\u00a7 1026) he was convicted by a jury on his plea of not guilty. Thereafter in the second phase he was found by a jury to be sane at the time he committed the offense. His appeal is from the judgment and is predicated upon the fact that in spite of timely objection the prosecutor committed prejudicial error in arguing to the jury in the second phase of the trial that the \\\"fatal flaw\\\" in appellant's defense of insanity was appellant's failure to take the witness stand.\\nThe prosecutor argued, \\\"Look at your defendant's case. One witness testified, the doctor, Did anybody prove that the defendant heard voices? No one. That is a fatal flaw in their case. Defendant never told you. Fte was not cross-examined.\\n\\\"Now ladies and gentlemen, obviously there is only one person that would have given you that kind of evidence. The defendant himself.\\\"\\nObjection was made and a motion for mistrial was denied. The prosecutor was then allowed to continue:\\n\\\"Mr. Cavanagh: As I was saying before, there is no evidence before you that defendant heard those voices. Obviously, there is only one witness who could have given that evidence. That witness has been in court all during this proceeding. The witness I am referring to is the defendant, who has previously been found guilty. He is not incriminating .himself. He has already been found guilty, a witness who had to walk a mere 20 steps from where he now sits to the stand to get the evidence that he heard voices. And of course, to be cross-examined. He would have to answer non-friendly questions by myself. That would have shed light on these events. That would have helped him prove what he has to prove, that he was insane at the time. That did not occur. I believe that, in itself, is fatal to the moving party's case.\\\"\\nBoth sides agree that had this comment been made at the guilt phase of the trial reversible error would have occurred. (Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229]; Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065]; People v. Bostick (1965) 62 Cal.2d 820 [44 Cal.Rptr. 649, 402 P.2d 529].) People assert, however, that since guilt had already been decided different policy reasons apply and the argument set out above is permissible, but cite no cases for the assertion.\\nOur study of the pertinent code section and the one case we have been able to find directly pertinent impels the conclusion that although a multiple plea is permitted and a bifurcated trial is mandated, that in a case such as the one at bench pragmatically there is only one trial. Thus, it will be noted that section 1026 anticipates that a defendant may plead only \\\"not guilty by reason of insanity.\\\" In pertinent part the section reads: \\\". . . or if the defendant pleads only not guilty by reason of insanity, then the question whether the defendant was sane or insane at the time the offense was committed shall be promptly tried, .\\\" [Italics added.]\\nSection 1016 of the Penal Code provides for six kinds of pleas and says in pertinent part: \\\"A defendant who does not plead guilty may enter one or more of the other pleas. . A defendant who pleads not guilty by reason of insanity, without also pleading not guilty, thereby admits the commission of the offense charged.\\\" [Italics added.]\\nThere is no constitutional requirement that a state give a criminal defendant a separate trial on the issue of sanity. (Murphy v. State of Florida (5th Cir. 1974) 495 F.2d 553.) California as a matter of procedure has provided that the issue of guilt and sanity shall be tried separately. (Pen. Code, \\u00a7 1026.) The second trial or the second facet of defendant's only trial differs from the first procedurally in that the issue is confined to sanity and the burden is upon the defendant to prove by a preponderance of the evidence that he was insane at the time of the offense. (In re Franklin (1972) 7 Cal.3d 126 [101 Cal.Rptr. 553, 496 P.2d 465]; In re Dennis (1959) 51 Cal.2d 666 [335 P.2d 657].) Since the issue at the insanity trial is not whether in fact the defendant has committed the act but whether or not he should be punished, some courts have referred to the issue at the sanity trial as one of \\\"confession and avoidance.\\\" (See People v. Wells (1949) 33 Cal.2d 330, 349 [202 P.2d 53].) Even though the burden is preponderance of the evidence, nonetheless the verdict of the jury must be unanimous. (People v. Bradshaw (1935) 5 Cal.App.2d 528, 531 [43 P.2d 317].) Because of this unusual procedure which is neither \\\"civil\\\" nor \\\"criminal\\\" but carries vestiges of both, courts are troubled because although \\\"guilt\\\" has been established in the first facet of the trial, if the defendant was insane at the time of the act he could not have had the necessary mens rea to establish guilt. (See People v. Bales (1974) 38 Cal.App.3d 354, 356 [113 Cal.Rptr. 141].)\\nArticle I section 15 of the California Constitution provides that a defendant is not required to be a witness against himself. (People v. Lamey (1930) 103 Cal.App. 66 [283 P. 848].) In Lamey the court, relying on People v. Troche (1928) 206 Cal. 35 [273 P. 767], and article I, section 13, held that since the sanity trial was but a continuation of the same criminal proceeding the defendant could not be compelled to testify.\\nThe Legislature by its enactment of Penal Code section 1026 cannot change the provisions of the Constitution of this state and there is no reason to assume that it ever intended to do so.\\nSince the sanity trial is but a part of the same criminal proceeding as the guilt phase (People v. Lamey, supra) it would appear that a defendant who has also pleaded not guilty by reason of insanity would be protected by the self-incrimination clause of the Fifth Amendment to the United States Constitution.\\nIn People v. Cotter (1965) 63 Cal.2d 386, 398-399 [46 Cal.Rptr. 622, 405 P.2d 862], the court held that it was error to allow adverse comment on the defendant's failure to take the stand during the sanity phase, but because of other factors, including a failure to object, the error was nonprejudicial.\\nIn similar situations involving constitutional rights, the high court of this nation and our Supreme Court have been quick to restrict statutes or practices which either place a penalty on the assertion of a constitutional right (see Griffin v. California (1965) 380 U.S. 609, 614 [14 L.Ed.2d 106, 110, 85 S.Ct. 1229]) or have a chilling effect on the exercise of a constitutional right. (See United States v. Jackson (1968) 390 U.S. 570, 582 [20 L.Ed.2d 138, 147, 88 S.Ct. 1209].)\\nThat portion of the judgment finding appellant sane at the time of the offense is reversed and a new trial is ordered on the issue of sanity.\\nCompton, J., and Beach, J., concurred.\\n' \\u00bb\\nA petition for a rehearing was denied March 9, 1976, and respondent's petition for a hearing by the Supreme Court was denied April 8, 1976.\\nIn pertinent part Penal Code section 1026 provides: \\\"When a defendant pleads not guilty by reason of insanity, and also joins with it another plea or pleas, he shall first be tried as if he had entered such other plea or pleas only, and in such trial he shall be conclusively presumed to have been sane at the time the offense is alleged to have been committed. If the jury shall find the defendant guilty, or if the defendant pleads only not guilty by reason of insanity, then the question whether the defendant was sane or insane at the time the offense was committed shall be promptly tried, either before the same jury or before a new jury in the discretion of the court. In such trial the jury shall return a verdict either that the defendant was sane at the time the offense was committed or that he was insane at the time the offense was committed. If the verdict or finding be that the defendant was sane at the time the offense was committed, the court shall sentence the defendant as provided by law.\\\"\\nNow article I, section 15.\\nIn People v. Cotter, supra, at pages 398-399, the court said: \\\"Defendant also asserts that the court erred in (1) allowing the'prosecutor to comment in argument upon his failure to testify during the guilt and sanity phases of the trial, and (2) giving an instruction on this subject on the guilt trial substantially of the type held to constitute error in Griffin v. California, 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106], It is to be noted, however, that, here, the erroneous instruction was requested by both the defense and the prosecution. No objection was made to the challenged comments. The comments weie temperate and, although both the instruction and comment were error, under the circumstances they furnish no ground for disturbing the judgment when the People v. Watson test previously alluded to is applied. (People v. Bostick, 62 Cal.2d 820 [44 Cal.Rptr. 649, 402 P.2d 529].)\\\"\\nIt should be noted that Cotter, and Bostick, the case that Cotter relied on for holding the error nonprejudicial, were both decided prior to Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065]. Chapman mandates a more stringent test before any error of constitutional magnitude can be found to be nonprejudicial.\"}"
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diff --git a/cal/4475688.json b/cal/4475688.json
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+"{\"id\": \"4475688\", \"name\": \"BARBARA WILSON, Respondent, v. FRANCIS A. WILSON, Appellant\", \"name_abbreviation\": \"Wilson v. Wilson\", \"decision_date\": \"1946-09-18\", \"docket_number\": \"Civ. No. 12998\", \"first_page\": \"119\", \"last_page\": \"133\", \"citations\": \"76 Cal. App. 2d 119\", \"volume\": \"76\", \"reporter\": \"California Appellate Reports, Second Series\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T01:52:03.084984+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BARBARA WILSON, Respondent, v. FRANCIS A. WILSON, Appellant.\", \"head_matter\": \"[Civ. No. 12998.\\nFirst Dist., Div. One.\\nSept. 18, 1946.]\\nBARBARA WILSON, Respondent, v. FRANCIS A. WILSON, Appellant.\\nArthur B. Dunne, Dunne & Dunne and Young, Hudson & Rabinowitz for Appellant.\\nVincent W. Hallinan and James Martin Maclnnis for Respondent.\", \"word_count\": \"4879\", \"char_count\": \"28715\", \"text\": \"PETERS, P. J.\\nDefendant appeals from an interlocutory decree of divorce granted to his wife after an extended and bitterly contested trial. So far as pertinent here, the decree awarded the wife an undivided one-half interest in the former residence of the parties, together with the sole right to the use and occupancy of the same, awarded her all the furniture and contents of the home, awarded her certain art objects created by her after marriage, awarded her $500 a month alimony, ordered the husband to discharge all community bills contracted prior to the filing of the complaint in the amount of $4,829, ordered the husband to pay all federal and state income taxes levied against the wife up to January 1, 1945, and granted to the wife's lawyer attorney's fees in the sum of $1,500. Although the defendant has appealed from the entire judgment he makes no attack on those portions granting his wife the right to a divorce or granting her alimony and counsel fees. The main attack is made on the property provisions of the decree, and upon certain other provisions of the decree hereafter mentioned.\\nThe record is a lengthy one. It shows that defendant was an evasive witness. It shows that he failed to make a full and fair disclosure of his assets and income, and that he attempted to conceal information on these subjects. It shows that he was in tax difficulties with the federal government, and that in at least one case he was found to have fraudulently concealed assets. It also shows that although he was a businessman of much experience that he frequently resorted to the answer \\\"I don't remember\\\" concerning facts that must have been known to him. Under the circumstances disclosed by the record the awards of property, alimony and counsel fees were quite fair to defendant. The record would have sustained more liberal allowances in all of these categories.\\nThe parties were married in New York on January 15, 1931. Shortly thereafter they established their domicile in San Francisco, and resided here until they separated on December 28, 1940. They have no children. This action was filed by the wife on January 19, 1942. The complaint charged the husband with extreme cruelty and desertion. Subsequently an amendment was added charging the husband with adultery, but this charge was dismissed by the trial court. The divorce was granted on the grounds of cruelty. The defendant denied the material allegations of the complaint and cross-complained for a divorce on the ground of extreme cruelty. Although the defendant testified in support of his cross-complaint in an obvious attempt to blacken his wife's reputation, he did not produce a single witness to corroborate his charges. The plaintiff, on the other hand, produced many witnesses to corroborate her charges of cruelty. Inasmuch as defendant does not challenge this portion of the decree, no useful purpose would be served by setting forth in this opinion a summary of the evidence on this issue, much of which is highly degrading to defendant. Suffice it to say that the evidence of plaintiff and of her many witnesses amply supports the findings that defendant was guilty of many acts of extreme cruelty against his wife, and amply supports the conclusion of the trial court that much of defendant's testimony was not entitled to belief.\\nThe trial court found that the residence of the parties in San Francisco was community property and awarded the plaintiff a one-half interest therein, together with the exclusive right of use and occupancy. This, and part of the furniture in the house, which was also awarded the wife, was found to be the only substantial community property of the parties after nearly 10 years of married life. The defendant is admittedly a man of substantial means. Most of his property he acquired by way of gift or inheritance from his parents and by his management of this property thereafter. Prior to his marriage he was a member of a partnership with his brother and others in a company known as Wilson Bros. & Co. Later, but prior to marriage, this partnership was incorporated as a Nevada corporation, defendant and Ms brother each owning one-half the stock. This company at one time had extensive lumbering and shipping interests but in recent years its assets have consisted almost entirely of stocks and bonds. Defendant spent an appreciable portion of his time attending to the affairs of this company. This company paid yearly substantial dividends to the two brothers. The court found that the total interest of defendant in this company was his separate property. In addition, defendant owned a stock brokerage firm and was a member of the San Francisco Stock Exchange. Defendant testified that in this business he suffered substantial losses. This business, too, was found to be the separate property of the defendant. Defendant testified that his sole community income was $6,000 per year paid to him by the corporation. The plaintiff and the court ex perienced great difficulty in getting defendant to disclose the exact assets and income of this company. Defendant was in the habit of keeping large sums of cash on hand in his office safe and of paying practically all of his bills and expenses in cash. He kept few personal records and many of the records he did have he either destroyed or refused to produce. The inference is quite broad that defendant did these things as part of a plan to defeat his various tax liabilities.\\nThe testimony in reference to the residence is not as clear as might be desired, but this condition of the record was caused by defendant's failure to be frank and fair with the trial court. Admittedly the house was purchased in 1938, some seven years after the marriage, and admittedly title was taken and still stands in defendant's name. Admittedly the house cost $20,000. Defendant testified that he paid for the house in cash and that the funds used for the purchase were the accumulations of dividends from property owned by him before marriage. Based on this evidence defendant urges as his principal contention on this appeal that it was error to find that the house was community property. In this connection he argues that since he testified that his sole community income was $6,000 a year, and since his wife testified that she estimated their living expenses at $3,500 to $4,000 per month, obviously the community funds were more than exhausted in paying the living expenses, and therefore the house must have been purchased with his separate funds. The plaintiff had no information concerning the source of the money used to buy the house because she had no knowledge of the facts. The record shows that defendant kept his wife in complete ignorance of his income and assets, and that she knew nothing of his business affairs. She did testify that immediately after buying the house the defendant told her that it was community property. While it is argued that this testimony cannot be used to establish the nature of the property, citing such cases as Estate of Granniss, 142 Cal.1 [75 P. 324] ; Estate of McCarthy, 127 Cal.App. 80 [15 P.2d 223], and Bias v. Reed, 169 Cal. 33 [145 P. 516], there is respectable authority that such declarations are admissible as declarations against interest. (See Estate of Smead, 219 Cal. 572 [28 P.2d 348] ; Estate of Hill, 167 Cal. 59 [138 P. 690] ; see cases collected 3 Cal.Jur. Supp., \\u00a7 74, p. 572.) At any rate such statements may be used as evidence of intent to make a gift of a community interest to the wife, or of a contract between the parties to that effect. (Estate of Sill, 121 Cal.App. 202 [9 P.2d 243] ; Estate of Watkins, 16 Cal.2d 793 [108 P.2d 417, 109 P.2d 1] ; Tomaier v. Tomaier, 23 Cal.2d 754 [146 P.2d 905] ; Huber v. Huber, 27 Cal.2d 784 [167 P.2d 708].)\\nThe position of defendant on this issue is unsound. He testified that he got the cash to pay for the house out of the corporation safe located in his brokerage office. In this safe were several compartments. He had the combination of the safe and keys to the compartments. He testified that his salary from the corporation was kept in this safe in a separate envelope and that periodically he transferred the appropriate amount of cash from the compartment of the corporation to this envelope. He also testified that when he needed money in excess of the $6,000 he simply removed it from the corporate funds in cash, substituting his personal I.O.U. for the amount so removed. Defendant was vague as to the amount of money that was kept in the various compartments of this safe. The plaintiff was unable at first to estimate their monthly living costs, but finally did estimate them at $3,500 to $4,000. This was obviously a guess on her part and is not supported by the facts. The defendant, however, was in a much better position to know the exact living costs of the parties because he paid most of the household bills in cash. He testified that his wife's testimony as to their living expenses was \\\"absolutely false\\\" (R.T. 515) and that actually it cost them $300 to $800 a month for living expenses. (R.T. 516.) Obviously, if the $300 figure was believed by the trial court there was a substantial part of the $6,000 a year salary that could have been used to buy the house. The trial court was entitled to disbelieve the defendant's testimony as to the source of the funds, but to believe his testimony as to their living costs. It was entitled to disbelieve his testimony in part or in toto. Moreover, there is substantial evidence that after marriage plaintiff, who is an artist, sold some of her art creations for substantial sums, and that the money so received was treated as community property. There is, therefore, in the record some evidence, weak though it may be, from which it may reasonably be inferred that community funds were used to buy the house. This testimony, without the necessity of relying on presumptions, supports the challenged finding.\\nIn addition the finding is supported by the strong presumption that all property acquired after marriage (ex- eept that acquired by a married woman, or by a married woman and another, by an instrument in writing) is community property. This presumption is fundamental in the community property system and is an integral part of the community property law not only of this state but of other states and countries where the system is in operation. (See discussion and many cases collected and commented upon 3 Cal.Jur. 10-Yr.Supp. \\u00a7 61 et seq., p. 553.) Coupled with this presumption is the elementary but fundamental rule that the burden rests upon the person asserting that the property is separate to establish that fact. (Estate of Tompkins, 123 Cal.App. 670 [11 P.2d 886] ; Estate of Gartland, 114 Cal. App. 269 [299 P. 757] ; Estate of Caswell, 105 Cal.App. 475 [288 P. 102] ; Estate of Duncan, 9 Cal.2d 207 [70 P.2d 174] ; Rahr Malting Co. v. Koch Brewing Co., 9 Cal.App.2d 457 [50 P.2d 476] ; Falk v. Falk, 48 Cal.App.2d 762 [120 P.2d 714].)\\nThe presumption is, of course, a rebuttable one. But whether the evidence adduced to overcome the presumption is sufficient for the purpose is a question for the trial court.\\nAs in other cases of presumptions, the rule is that the presumption may outweigh the evidence adduced against it and that notwithstanding controverting testimony the presumption alone will support a finding in accordance therewith. (See eases collected 3 Cal.Jnr. 10-Yr.Supp. \\u00a7 63, p. 557.)\\nCounsel for defendant, while giving lip service to these well settled rules, contends that they have no application here for at least two reasons\\u2014first, that the evidence controverts the presumption as a matter of law, and, secondly, that the presumption has no place in the present case at all. So far as the first contention is concerned, little need be said. Obviously, whether defendant's evidence rebutted the presumption was a question for the trial court. In view of what has already been said about defendant's testimony, obviously the trial court was justified in disregarding his testimony on this issue and finding in accordance with the presumption.\\nDefendant's second argument is that evidence that the house was bought in 1938 after marriage was not sufficient to raise the presumption\\u2014that in addition plaintiff was under a duty to show that the funds used in the purchase were acquired after marriage. In the absence of such evidence, says defendant, there is no evidentiary basis for the presumption. There is no such limitation on the rule\\u2014if there were, there would he but little room for the operation of the presumption. Obviously, if a litigant had to trace the funds used in each purchase to funds acquired after marriage there would be few cases indeed to which the presumption could apply. The true rule is that the burden is on the party asserting the separate character of the property, and that the presumption applies when the one claiming that the property is community offers evidence that that property was acquired after marriage.\\nThe soundness of the presumption is well illustrated in the present case. The defendant was the one in possession of the true facts relating to his assets and income. He was evasive and tried to conceal the facts relating to these matters. Neither opposing counsel, his own counsel or the court was successful in getting him to make a full and fair disclosure. Under such circumstances it would result in a miscarriage of justice to not indulge in the presumption.\\nThe same reasoning applies to the findings relating to the furniture and furnishings in the house. Admittedly most of the furnishings and furniture were the separate property of the plaintiff, she having owned them prior to the marriage. In addition, after marriage, some further furnishings and furniture were purchased, plaintiff testifying that after-acquired articles were purchased for $5,000, and defendant testifying that he purchased these articles for $10,000 in cash taken from the office safe, and that all the money so used was his separate property. The same evidence and the same presumption discussed in reference to the house applies to these articles. The finding is amply supported.\\nThe next contention of appellant relates to the finding in reference to the community bills. In reference to these bills the court found that upon the date the complaint was filed there were community debts totaling $4,829 and that such community debts should be paid by defendant.\\nThe facts in reference to the bills did not come to light until the last day of the long trial. At that time the trial judge was making an oral announcement of his conclusions. Counsel for plaintiff called the attention of the court to the fact that his client was being harassed by creditors of the community, and that certain utility and repair bills that the court had ordered defendant to pay had not been paid. He also called attention to the fact that his client was being sued for repairs to the house, that defendant had evaded service in that action, and that there was danger the house might be sold to satisfy a Small mechanic's lien. These bills were ordered paid by the defendant and no challenge is made as to that portion of the decree.\\nDefendant does not contend that he is not liable for the bills incurred by the parties before the date fixed in the findings, nor does he urge that the trial court did not have the power to make an order requiring him to pay such bills. The sole point urged by him as to these bills is that there is no evidence in the record as to the amount of such bills, to whom they are owed, or their nature.\\nIt is true that the list of such bills, although discussed in open court, was not formally introduced into evidence, but this failure to introduce such a list does not require a reversal or modification. The defendant can suffer no injury because of this fact. As between the husband and wife the court determined that the wife should be held harmless for such bills not to exceed $4,829. Before the defendant can be held liable on these bills so far as the wife is concerned she must show that the debts were incurred prior to January 19, 1942, and that the total amount does not exceed $4,829. If disputes arise between the parties in the future over whether a particular bill was a community bill, and whether it was incurred prior to the date the action was filed, such disputes may be easily determined by the trial court.\\nDefendant also objects to that portion of the decree relating to income taxes. In this connection the decree provides that defendant shall \\\"pay and discharge all income taxes levied by the government of the United States, or the State of California, against the plaintiff Barbara Wilson, or which constitute a lien upon any property awarded to her hereby, or in which she is granted any right, title, interest or control hereby, up to the 1st day of January, 1945.\\\" (C.T. 169.)\\nThe record shows that after the separation of the parties in 1940 and even after the complaint was filed in 1942 the defendant filed joint returns, and that litigation with the federal government is pending over these returns. It also shows that pursuant to stipulation of the parties defendant has paid plaintiff $350 a month alimony pendente lite since January, 1942. It seems to be the contention of the defendant that under appropriate section of the Internal Revenue Code (26 U.S.C.A. \\u00a7 22 (k)), alimony is chargeable to the wife and not to the husband. It is argued that the decree above quoted, insofar as it affects the alimony pendente lite, varied the terms of the agreement of the parties retroactively without the consent of the parties. It is also argued that until the amount of the taxes are fixed, determined and assessed against the plaintiff she is entitled to no relief. The decree makes no award of any sum to cover the taxes in question\\u2014it merely states that defendant shall pay them after they are assessed. The decree was a proper one. Section 22 (k) of the code by its clear language merely applies to alimony payments made subsequent to a divorce or separate maintenance decree. It has no application at all to alimony pendente lite. The regulations expressly so provide. (See Regulations 111, p. 80, \\u00a7 29.22 (k)-l.) It is clear that defendant is liable for and should pay the tax on these payments. The record shows the wife had no other income except from the occasional sale of a work of art. These works of art were awarded to her. We find no error in reference to this portion of the decree.\\nThe defendant also objects to finding No. Y. That is an omnibus finding to the effect that all of the allegations of plaintiff's first cause of action are true and that none of the allegations of defendant's answer or cross-complaint are true. An examination of the first cause of action shows that it contains certain allegations in reference to the property rights of the parties which are in conflict with the specific findings made on that subject. The specific findings of course control. Counsel for plaintiff at the oral argument stated that he had no objection to the elimination of that finding. Out of an abundance of caution that finding will be stricken.\\nThe last contention of defendant necessary to discuss is that the interlocutory decree erroneously attempts to make a present absolute disposition of the community property, it being contended that under sections 146 and 147 of the Civil Code the power of the court is limited to making the community property division effective upon the entering of the final decree. While the findings and conclusions use language that speak prospectively, the interlocutory decree undoubtedly attempts to make a presently effective division of the community property. It provides that the plaintiff \\\"is hereby awarded, and there is hereby set over, and her title is hereby quieted as against the defendant\\\" (C.T. 167) to the one-half interest in the house, and substantially similar Ian guage is applied to the furniture and to the awards in favor of defendant.\\nThe adoption in 1903 of the interlocutory decree provisions found in the code, leaving unchanged the sections relating to the power of the court to divide the community property, has led to much confusion and litigation. (See discussion and collection of cases 20 Cal.L.Rev. 294; ann. 76 A.L.R. 284; cases collected 3 Cal.Jur. 10-Yr.Supp. \\u00a7 154, p. 674.) There can be no doubt at all that the trial court has jurisdiction to make a present disposition of the community property in the interlocutory decree, and that upon that decree becoming final, it measures finally the property rights of the parties. But whether it is error to make such an award is a most confusing question.\\nThe Supreme Court has recently reviewed the authorities on this subject at length in Leupe v. Leupe, 21 Cal.2d 145 [130 P.2d 697]. There in the interlocutory decree there was made a present disposition of the community property by awarding it to the husband and giving the wife a cash award for her interest secured by a lien on the property. No appeal was taken from the interlocutory and it became final. Thereafter the trial court attempted to modify the lien provisions. It was held that no such power existed. The discussion by the Supreme Court is well worth repeating here. At page 147 it is stated: or the effect of such decrees after the time for appeal has passed. Furthermore, it has been said that the court generally should determine the property issues at the same time it determines the issues with respect to the divorce, although the court may specify that its determination should not become effective or final until the entry of the final decree. (Pereira v. Pereira, 156 Cal. 1 [103 P. 488, 134 Am.St.Rep. 107, 23 L.R.A.N.S. 880] ; Webster v. Webster, 216 Cal. 485 [14 P.2d 522] ; Lo Vasco v. Lo Vasco, 46 Cal.App.2d 242 [115 P.2d 562].) This practical solution of the problem was recognized and approved in the Remley and Strupelle cases, supra. We need not decide in this ease whether it was error to make an immediate assignment of property in the interlocutory decree or whether the right to so dispose of the property of the parties was within the discretion of the court. The time for appeal having elapsed, the determination of property issues in the interlocutory decree became final and was no longer subject to modification except in accordance with the methods applicable to judgments generally. It follows that the court could not alter the decree by terminating the lien in the present ease.\\\"\\n\\\"Appellant contends that the court had no jurisdiction to terminate the lien or to change other portions of the interlocutory decree relating to property after it had become final and the time for appeal or for relief under Code of Civil Procedure section 473 had expired. Respondent replies that any disposition of property rights by the interlocutory decree was not effective or conclusive until a final decree of divorce was entered, and contends, therefore, that the trial court retained power to modify its decree. This problem has been before our courts many times since the legislation of 1903 creating the present dual-decree divorce procedure. .While the decisions have not been entirely consistent, no decision has been found that can sustain the order removing the lien. With the exception of certain language to the contrary, hereafter noted, the decisions establish that the trial court is without jurisdiction to modify an unqualified disposition of property rights made in an interlocutory decree of divorce except in accordance with the methods applicable to judgments generally, time for which had expired in this case before respondent's motion was made. Even though a final decree is not entered, the interlocutory decree becomes a conclusive adjudication and is res judicata with respect to all issues determined. [Citing many eases.]\\n\\\"Language may be found in certain decisions which cannot be reconciled with the foregoing cases. In Estate of Boeson, 201 Cal. 36, 40 [255 P. 800], relied upon by respondent, it was said that the entry of an interlocutory decree does not sever the marital relation, and that any disposition of property made thereby becomes effective only upon entry of the final decree, until which time property rights remain as before the interlocutory decree. The court cited Estate of Dargie, 162 Cal. 51 [121 P. 320], and Estate of Seiler, 164 Cal. 181 [128 P. 334, Ann.Cas. 1914B, 1093], but these support only the reference to severance of marital relations. Further, the language in Estate of Boeson, supra, is dictum, for although the appellant therein was said not to be barred by the decree, she was held barred upon other grounds. Roberts v. Wehmeyer, 191 Cal. 601, 615 [218 P. 22], suggests the law to be that 'community property may be divided only upon a dissolution of the marriage and . an interlocutory decree is not such a dissolution. ' This statement of the law has not been followed and has also been characterized as dictum. (Klebora v. Klebora, supra, [118 Cal.App. 613 (5 P.2d 965)] p. 621.) Similarly, in Radich v. Radich, 64 Cal.App. 605, 607 [222 P. 182], it was said by way of dictum that the court could not dispose of community property or a homestead until the final decree. Insofar as the language of these cases suggests that a court is without jurisdiction to make an unqualified disposition of property in an interlocutory decree of divorce, it is in opposition to the cases previously cited and must be disapproved.\\n\\\"An immediate disposal of property upon an interlocutory decree of divorce is thus within the jurisdiction of the trial court. It has been held in certain cases that the trial court should not assign and dispose of the community or homestead property immediately by an interlocutory decree of divorce, but should wait until such time as the marriage is absolutely dissolved. [Citing several cases.] These cases, however, dealt with direct appeals from interlocutory decrees in which error only was claimed and do not involve questions of jurisdiction\\nIn the present case we are faced with the problem expressly left open in the Leupe case. Here the appeal is from the interlocutory decree. In Remley v. Remley, 49 Cal.App. 489 [193 P. 604], and Strupelle v. Strupelle, 59 Cal.App. 526 [211 P. 248], and by implication in other eases (see Peis v. Mohr, 126 Cal.App. 300 [14 P.2d 878] ; Abbott v. Superior Court, 69 Cal.App. 660 [232 P. 154] ; Webster v. Webster, 216 Cal. 485 [14 P.2d 522]) it has been held to be error to make a present and absolute disposition in the interlocutory. It would appear that a proper solution of this problem would be to hold that the interlocutory may make a present disposition of the community property, but that the title thus conveyed is limited and conditional until the entry of the final decree. A reconciliation before that time or the death of one of the parties, and perhaps other circumstances, would prevent the conditional title from becoming absolute. However, in view of the confusion in the cases it would appear that the Supreme Court or the Legislature are the only bodies that can finally settle this troublesome problem. In the present case it was, of course, proper for the trial court to determine in its interlocutory the status of the property and how it ought to be assigned upon the entering of the final decree. Justice will best be served by striking from the \\\"decree all words presently disposing of the community property and inserting words to the effect that in the final decree the parties are entitled to have assigned to the parties specified the portions of the community property enumerated in the decree. (Prout v. Prout, 73 Cal.App.2d 715 [167 P.2d 1].) The plaintiff's right of occupancy pending this appeal is not challenged and is not affected by this modification.\\nFor the foregoing reasons finding No. V is stricken from the findings; the interlocutory decree is modified by striking therefrom all words presently disposing of the community property and inserting words to the effect that upon the entering of the final decree the parties are entitled to have assigned to them the portions of the community property mentioned in the decree. As so modified the judgment is affirmed as of the date of its entry; plaintiff to recover her costs on this appeal.\\nWard, J., and Schottky, J. pro tern., concurred.\"}"
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+"{\"id\": \"4563723\", \"name\": \"FRANK COGHLAN, Respondent, v. SALVATORE QUARTARARO, LEWIS WEISMAN, and THEODORE WEISMAN, Copartners Doing Business Under the Firm Name of WEISMAN BROS., Defendants; SALVATORE QUARTARARO, Appellant; SWETT-DAVENPORT LUMBER COMPANY, a Corporation, and LETTICH-FOIN CO., a Corporation, Respondents, v. SALVATORE QUARTARARO, LEWIS WEISMAN, and THEODORE WEISMAN, Doing Business Under the Firm Name of WEISMAN BROS., SWISS-AMERICAN BANK, a Corporation, Defendants; SALVATORE QUARTARARO, Appellant\", \"name_abbreviation\": \"Coghlan v. Quartararo\", \"decision_date\": \"1911-03-21\", \"docket_number\": \"Civ. No. 853\", \"first_page\": \"662\", \"last_page\": \"669\", \"citations\": \"15 Cal. App. 662\", \"volume\": \"15\", \"reporter\": \"California Appellate Reports\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T19:54:36.423846+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FRANK COGHLAN, Respondent, v. SALVATORE QUARTARARO, LEWIS WEISMAN, and THEODORE WEISMAN, Copartners Doing Business Under the Firm Name of WEISMAN BROS., Defendants; SALVATORE QUARTARARO, Appellant. SWETT-DAVENPORT LUMBER COMPANY, a Corporation, and LETTICH-FOIN CO., a Corporation, Respondents, v. SALVATORE QUARTARARO, LEWIS WEISMAN, and THEODORE WEISMAN, Doing Business Under the Firm Name of WEISMAN BROS., SWISS-AMERICAN BANK, a Corporation, Defendants; SALVATORE QUARTARARO, Appellant.\", \"head_matter\": \"[Civ. No. 853.\\nFirst Appellate District.\\nMarch 21, 1911.]\\nFRANK COGHLAN, Respondent, v. SALVATORE QUARTARARO, LEWIS WEISMAN, and THEODORE WEISMAN, Copartners Doing Business Under the Firm Name of WEISMAN BROS., Defendants; SALVATORE QUARTARARO, Appellant. SWETT-DAVENPORT LUMBER COMPANY, a Corporation, and LETTICH-FOIN CO., a Corporation, Respondents, v. SALVATORE QUARTARARO, LEWIS WEISMAN, and THEODORE WEISMAN, Doing Business Under the Firm Name of WEISMAN BROS., SWISS-AMERICAN BANK, a Corporation, Defendants; SALVATORE QUARTARARO, Appellant.\\nAppeal\\u2014Bill of Exceptions\\u2014Insufficiency of Evidence\\u2014Want of Specifications \\u2014 Review \\u2014 Findings Conclusive. \\u2014 Upon appeal from a judgment and from an order denying a new trial, where the evidence is embodied in a bill of exceptions, which contains no specifications of the particulars in which the evidence is insufficient to support the findings, the appellate court is precluded from reviewing the sufficiency of the evidence, upon either appeal, and must accept the findings of fact made by the trial court as correct.\\nMechanics\\u2019 Liens\\u2014Consolidated Action\\u2014Foreclosure\\u2014Jury Trial not Allowed to Owner not Personally Sued.\\u2014In a consolidated action to foreclose the liens of a subcontractor for plastering, of a lumber company for lumber furnished, and of a plumbing company for plumbing, in a building constructed for the owner of property, the owner against whom no personal judgment was sought is not entitled to demand a jury trial therein.\\nId.\\u2014Nature of Action\\u2014Suit in Equity\\u2014Jury Trial not Allowed upon Any Issue.\\u2014An action to foreclose a mechanic\\u2019s, subcontractor\\u2019s or materialman\\u2019s lien is a suit in equity in which no right of trial by jury is allowed; and the owner, sued therein simply as such, to enforce the liens upon his property, is not entitled to a jury trial, either upon the whole case or upon any special issue therein.\\nId.\\u2014Legal Issue in Equitable Action.\\u2014The fact that legal issues may be involved in an equitable action does not entitle the defendant to demand a jury trial thereof.\\nId.\\u2014Void Contracts\\u2014Specifications Unsigned\\u2014Absence of Filing. Where there were two contracts, one to erect a two-story building, and the other to add a third story thereto, each of which was for more than $1,000, and each provided that the work should be done according to certain plans and specifications, as to the first of which contract no specifications were signed, and as to the second of which no specifications were filed, both contracts were void.\\nId.\\u2014Effect of Void Contracts\\u2014Full Eights of Lien\\u2014Owner not Entitled to Pro Eata Apportionment.\\u2014The contracts being void, the plaintiffs were each entitled to a lien for the full amount of the materials and labor furnished and put into the building, without regard to the contract price, or the balance remaining unpaid in the owner\\u2019s hands; and the court properly refused to allow the owner to apportion the residue of the contract price pro rata between the lien claimants.\\nId.\\u2014Pleading in Consolidated Action \\u2014 Averment of Validity of Contract by One Claimant\\u2014Averments of Invalidity\\u2014Conclusive Finding\\u2014Becovery.\\u2014Where in the consolidated action one lien claimant averred the validity of the contract, and other lien claimants alleged that each contract was void, the finding that both of the contracts were void is conclusive upon all parties to the consolidated action, and operated in favor of each of the plaintiffs recovering therein, including the plaintiff averring such validity.\\nId.\\u2014Averment of Agreed Price\\u2014Prima Facie Averment of Value\\u2014 Absence of Special Demurrer.\\u2014The averment of an agreed price both in the claim of lien and in the complaint is a sufficient prima facie averment of value, in the absence of a special demurrer for uncertainty.\\n\\u25a0Id.\\u2014Claim of Lien by Corporation\\u2014Individual Signature and Verification\\u2014Evidence\\u2014Position of General Manager\\u2014Competent Action.\\u2014Where a claim of lien in favor of a corporation was signed and verified in its name individually by one who was proved without objection to be its general manager, who had full charge of all of its business, it was competent for him, in view of such evidence, to make and verify and file the claim for the corporation.\\nId.\\u2014Motion for Nonsuit \\u2014 General Statement Insufficient.\\u2014A motion for a nonsuit must specify the particular grounds thereof, and a general statement therein that a plaintiff had failed to prove his case is wholly insufficient, and motions for a nonsuit as to several plaintiffs on that ground were each properly denied.\\nId.\\u2014False Conclusion of Law.\\u2014A motion for a nonsuit also averring that a corporation as a subcontractor has no claim of lien under the law, is but a statement of a false conclusion of law, and is of no effect, and was properly denied.\\nId.\\u2014Improper Allowance of Interest on Unliquidated Claim Prior to Trial\\u2014Modification of Judgment.\\u2014The court improperly allowed interest on a claim of lien for lumber sold at the market rates which changed from time to time, prior to the trial. In such case the amount due was unliquidated, and was not capable of being made certain by calculation, and only became certain when fixed by judgment. The judgment must be modified by striking out the interest prior to judgment.\\nAPPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. James M. Troutt, Judge.\\nThe facts are stated in the opinion of the court.\\nDaniel 0 \\u2019Connell, for Appellant\\nRoger Johnson, Alexander Bells, and H. K. Bells, for Respondents.\\nB. B. Young, and F. A. Denicke, for Swiss-Ameriean Bank, Mortgagee, Defendant.\", \"word_count\": \"2976\", \"char_count\": \"17630\", \"text\": \"HALL, J.\\nPlaintiff Coghlan brought suit against Weisman Bros., as the contractor, and Salvatore Quartararo, as the owner, to recover a balance unpaid him, as subcontractor, for lathing and plastering a building constructed by Weisman Bros, for said Quartararo.\\nThe other plaintiffs joined in bringing a similar action against the same defendants, the Swett-Davenport Lumber Company, seeking to recover for lumber furnished the contractor for said building, and Lettich-Foin Company, seeking to recover for the plumbing of said building.\\nWeisman Bros, defaulted and never appeared. The actions were consolidated and were tried together as one action. Findings of fact were made and judgments entered for the several plaintiffs as prayed for, against the contractors, Weisman Bros., and the amounts thereof adjudged to be a lien against the premises of Quartararo, with the usual decree of foreclosure to satisfy the same.\\nDefendant Quartararo appealed both from the judgment and from the order denying his motion for a new trial, and brought both appeals up on the same record, consisting of the judgment-roll and a bill of exceptions settled before the hearing upon the motion.\\nIt appears that the notice of intention to move for a new trial was not served upon appellant's codefendants, Weisman Bros., and it is insisted by respondent that it was for that reason properly denied. Inasmuch as we think that the motion was properly denied on its merits, we do not deem it necessary to decide this point.\\nA large portion of appellant's brief is devoted to discussing matters that can only be considered under the head of insufficiency of the evidence to support the findings; but as there is no specification in the bill of exceptions of the particulars in which it is claimed that the evidence is insufficient to support the findings, we are precluded from reviewing the sufficiency of the evidence, and must accept the findings of fact made by the court as correct. (Code Civ. Proc., sec. 648; Estate of Page, 57 Cal. 238; Snell v. Payne, 115 Cal. 218, [46 Pac. 1069].)\\nThe bill of exceptions does show that appellant requested the court to rule that the several plaintiffs had failed to prove their several causes of action, and that said motions were denied. This, however, was before the court had made any findings of fact. The findings of fact were subsequently, signed and filed, and the bill of exceptions subsequently settled and used upon the motion for a new trial in no way refers to any of said findings of fact, and much less does it specify any particulars in which the evidence is insufficient to support any of said findings. This is essential before this court can review the sufficiency of the evidence to support the findings, either upon the appeal from the judgment or from the order denying the motion for a new trial. (Code Civ. Proc., secs. 648, 659; Estate of Page, 57 Cal. 238; Snell v. Payne, 115 Cal. 218, [46 Pac. 1069].)\\nBefore the commencement of the trial defendant demanded that the consolidated actions be tried before a jury. This demand was denied, and he then requested that certain issues of fact be submitted to a jury. This was likewise denied. The court did not err in refusing a jury trial, either upon the whole case or upon any special issue.\\nAn action to foreclose a mechanic's, subcontractor's, or materialman's lien is a suit in equity, and the defendant, sued simply as the owner of the property against which it is sought to foreclose the lien, is not entitled to a jury trial. (Curnow v. Blue Gravel Co., 68 Cal. 262, [9 Pac. 149].)\\nIn the case at bar the only judgment sought or obtained as against appellant was that of foreclosure of the lien; no personal judgment against appellant was sought or obtained. The action, as against appellant, was similar to an action to foreclose a mortgage, in which action it has been held that a jury trial is properly denied, though the answer present the legal defense of nonexeeution of the note and mortgage sued on. (Downing v. Le Du, 82 Cal. 471, [23 Pac. 202].)\\nIt has also been held that the equitable nature of the action to quiet title cannot be changed so as to entitle a defendant to a jury trial, though defendant, being out of possession, file a cross-complaint in ejectment. (Angus v. Craven, 132 Cal. 691, [64 Pac. 1091]; McNeil v. Morgan, 157 Cal. 373, [108 Pac. 69].)\\nProm the principles laid down by the above-cited authorities it is clear that the court did not err in refusing appellant's demand for a jury trial.\\nEvidence was introduced to the effect that various claimants, including the plaintiffs, had served notices on appellant that they had severally performed labor for and furnished materials to Weisman Bros., the original contractors, to the aggregate amount of about $3,900, and that thereupon appellant objected to plaintiffs' proceeding with the trial, and requested the court to rule that he was \\\"justified in refusing to pay plaintiffs anything until there was an accounting and apportioning among the several claimants.\\\" The court refused to so rule, and such ruling is assigned as error.\\nThe contracts between appellant and Weisman Bros, were void. There were two contracts. The first was for the erection of a two-story building, and the second for the addition of a third story thereto. Each contract provided that the work should be done in conformity with the plans, drawings and specifications \\\"which are signed by the parties hereto\\\" etc., and each was for over $1,000. As to the first contract, it appeared that the plans and specifications were not signed, and as to the second, that \\\"no plans or specifications therein referred to were filed therewith.\\\"\\nBoth contracts were therefore void. (West Coast Lumber Co. v. Knapp, 122 Cal. 79, [54 Pac. 533] ; Donnelly v. Adams, 115 Cal. 130, [46 Pac. 916] ; Willamette etc. Co. v. Los Angeles College Co., 94 Cal. 229, [29 Pac. 629].) Consequently, plaintiffs were entitled to a lien for the value of the materials and labor furnished and put into the building, without regard to the price named in the original contract between appellant and his contractors or the balance remaining unpaid in the owner's hands. (Kellogg v. Howes, 81 Cal. 170, [22 Pac. 509, 6 L. R. A. 588].) The court in its ruling, therefore, did not err.\\nWhat we have said concerning the contracts between appellant and Weisman Bros, being void also disposes of the special defenses set up for the purpose of reducing the amount due from appellant to the contractors. The contracts being void, the plaintiffs were not affected or concerned with the amount due from appellant to his contractors.\\nIn this connection, however, appellant urges that plaintiff Coghlan in his complaint set up a valid and properly filed contract between the owner and the contractor; and insists that he therefore cannot take advantage of the fact that the contract was void for noneompliance with the statute. But the other plaintiffs set up that the contracts were never filed, and the court so found. The actions being consolidated, any of the plaintiffs could tender an issue as to the validity of the contracts, and the finding thereon would bind all the parties to the action. As was said in Union Lumber Co. v. Simon, 150 Cal. 751, [89 Pac. 1077]: \\\"This issue affected the rights of each of the plaintiffs, and its presentation in any of the original complaints became an issue in the consolidated action, and the finding and judgment thereon operated in favor of all the plaintiffs.\\\" (See, also, Willamette Steam Mills etc. Co. v. Los Angeles College Co., 94 Cal. 229, [29 Pac. 629].)\\nThe point also seems to be made that Coghlan should have sued for the value of his work, and not on the agreed price. But it has been decided that an allegation of the agreed price, both in the claim of lien and in the complaint, is a sufficient prima facie allegation of value, and is sufficient in the absence of a demurrer for uncertainty. (Bringham v. Knox, 127 Cal. 40, 44, [59 Pac. 198].)\\nAt the close of the testimony introduced on behalf of the Swett-Davenport Lumber Company appellant requested the court \\\"to rule and decide that said Swett-Davenport Lumber Company had failed in proof of its case, in that the claim of lien filed was not made by said corporation and was insufficient; and that said corporation had not proved the value of the materials or the mill work claimed to have been furnished; and that the law applying the payments made by Weisman Bros, on said account showed that there was nothing due said Swett-Davenport Lumber Company for labor or materials furnished to, or for, or charged to, this building; and also that there was no evidence that said labor and materials were actually used in the construction of this building.\\\" This request was refused, and appellant excepted.\\nThe claim of lien of said plaintiff purports on its face to be the claim of the Swett-Davenport Lumber Company, a corporation, and is in all respects in proper form. It is signed \\\"Swett-Davenport Lbr. Co. By W. E. Code,\\\" and verified by W. E. Code, and was introduced in evidence without objection. The evidence shows that W. E. Code had full charge of the business of the corporation\\u2014substantially that he was the general 'manager thereof. It was competent for him to make and file the claim for the corporation and to verify it. (Park & Lacy Co. v. Inter Nos etc. Co., 147 Cal. 490, [82 Pac. 51] ; Greig v. Riordan, 99 Cal. 316, [33 Pac. 913].)\\nThe testimony of Code and Weisman, one of the contractors, fully meets the other objections to the sufficiency of the ease made by said plaintiff.\\nThe request of appellant should probably be treated as a motion for a nonsuit, though not so denominated in the motion, and as such it was properly denied.\\nSimilar motions were made for similar rulings as to the other plaintiffs, but the grounds of the motions were not stated, except generally that the particular plaintiff had failed to prove his case, and that \\\"a corporation as a subcontractor had no lien under the law. ' '\\nThe general statement that plaintiff had failed to prove its case is wholly insufficient as a statement of grounds for non-suit, and in such case the motion must be denied (Miller v. Luco, 80 Cal. 257, [22 Pac. 195]); and the statute gives a lien to subcontractors. (Macomber v. Bigelow, 126 Cal. 9, [58 Pac. 312].) The other motions were therefore properly denied.\\nAppellant's contention that the court erred in allowing interest on the amount due the Swett-Davenport Lumber Co. prior to the judgment must be sustained. This plaintiff sold at the market rates, which changed from time to time, and were the subject of proof at the trial. The amount due was unliquidated, and was not capable of being made certain by calculation. It only became certain when fixed by the judgment. Interest in such a case cannot be allowed prior to judgment. (Burnett v. Glas, 154 Cal. 249, [97 Pac. 423].)\\nIn all other respects the judgment is supported by the findings.\\nThe various objections made that go to the sufficiency of the evidence to support the findings cannot be considered for want of any specification of such insufficiency, as we before pointed out. The only error we find in the record is the one allowing interest before judgment to Swett-Davenport Lumber Co.\\nThe order denying the motion for a new trial is affirmed. The judgment is modified by striking from that part awarding judgment to Swett-Davenport Lumber Company the words and figures following, to wit: \\\"With interest thereon at the rate of seven per cent per annum from the 1st day of August, 1907, amounting to $176.00,\\\" and as so modified the judgment is affirmed as of the date thereof. Appellant is to recover of plaintiff Swett-Davenport Lumber Company one-third his costs of this appeal.\\nLennon, P. J., and Kerrigan, 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 May 20, 1911.\"}"
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+"{\"id\": \"4583526\", \"name\": \"G. A. BIGELOW et al., Appellants, v. SAN JUAN GOLD COMPANY (a Corporation), Respondent\", \"name_abbreviation\": \"Bigelow v. San Juan Gold Co.\", \"decision_date\": \"1944-04-29\", \"docket_number\": \"Civ. No. 7017\", \"first_page\": \"188\", \"last_page\": \"197\", \"citations\": \"64 Cal. App. 2d 188\", \"volume\": \"64\", \"reporter\": \"California Appellate Reports, Second Series\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T18:16:13.494504+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"G. A. BIGELOW et al., Appellants, v. SAN JUAN GOLD COMPANY (a Corporation), Respondent.\", \"head_matter\": \"[Civ. No. 7017.\\nThird Dist.\\nApr. 29, 1944.]\\nG. A. BIGELOW et al., Appellants, v. SAN JUAN GOLD COMPANY (a Corporation), Respondent.\\nWm. F. Rose and H. Ward Sheldon for Appellants.\\nThomas R. White, Francis B. Perry and Lynne Kelly for Respondent.\", \"word_count\": \"2853\", \"char_count\": \"16897\", \"text\": \"THOMPSON, J.\\nThe plaintiffs have appealed from that portion of a judgment which quiets title in the defendant, San Juan Gold Company, a corporation, to several contiguous unpatented placer mining claims situated in Nevada County. After the claims were separately located prior to 1872, they were purchased by the defendant in 1906, and consolidated for the purpose of mining operations. They are designated as \\\"Union Lot 59A\\\" and contain 192.32 acres of land. Assuming that these claims had been forfeited by defendant's failure to perform assessment work in certain specified years, of the value of $100 on each lot contained in that tract, the plaintiffs located a larger tract in 1930, consisting of six contiguous placer mining claims, called the \\\"Trood Claims,\\\" numbered from 1 to 6 inclusive, and containing 373 acres of land. Defendant's \\\"Union Lot 59A\\\" was included within the boundaries of the six Trood claims. The plaintiffs thereafter performed annual labor upon each of said Trood claims in excess of the value of $100, and also expended some $30,000 in constructing buildings, purchasing machinery and making improvements for a mining enterprise.\\nPlaintiffs commenced this action to quiet title to said Trood placer mining claims. The defendant filed an answer and cross-complaint denying plaintiffs' alleged title to \\\"Union Lot 59A,\\\" or any portion of that consolidated claim, and affirmatively asserted its ownership and right to possession thereof, together with another placer mining claim designated \\\"Consolidated Lot No. 46.\\\" There is no dispute regarding the title to said Lot 46.\\nThe court adopted findings to the effect that \\\"Union Lot 59A\\\" consists of not less than twelve separate contiguous placer mining claims which were duly located prior to 1866 in Kennebec Hill Mining District of Nevada County; that \\\"subject to the paramount title of the United States,\\\" said claims became vested in Union Gravel Mining Company, a corporation, on or about February 11, 1875; that none of said claims was thereafter abandoned, forfeited or relocated; that by mesne conveyances titles to said claims were transferred to the defendant, San Juan Gold Company, a corporation, on or about June 30, 1906; that said contiguous placer mining claims, consisting of 192.32 acres of land, were combined and operated as one tract, and ever since 1909 the defendant \\\"treated, regarded, and held out to all the world said 'Lot 59A' as a single placer mining claim\\\"; that the defendant annually performed work of the value of $100 upon said consolidated \\\"Union Lot 59A\\\" and paid all taxes thereon except that in certain specified years during which the federal statutes waived the performance of assessment work, none was done, but for said years of nonperformance affidavits of exemption were filed as required by law.\\nThe court further found that subsequent to the original locations of said placer mining claims and defendant's acquisition of title thereto, the plaintiffs located six separate contiguous placer mining claims in Nevada County, during and after 1930, designated as the \\\"Trood Placer Mining Claims\\\" Nos. 1 to 6 inclusive, containing 373 acres of land and including within their boundaries \\\"all the area comprising 'Lot 59A/ \\\" which Trood claims they thereafter occupied \\\"subject to the claim of defendant corporation San Juan Gold Company to said 'Lot 59A,' \\\" and thereafter performed annual labor upon each of said Trood claims of the value of $100, and expended in further improvements and operating expenses on said premises the sum of $30,000.\\nBased upon those findings the court rendered judgment quieting title in the defendant, San Juan Gold Company, to the placer mining claims designated as \\\"Union Lot 59A\\\" together with another mining claim called \\\"Consolidated Lot No. 46.\\\" Title to the remaining portion of the six Trood placer mining claims described in the complaint was quieted in plaintiffs as prayed for. Prom that portion of the decree quieting title in the defendant to \\\"Union Lot 59A\\\" the plaintiffs have appealed.\\nThe appellants contend that the respondent forfeited its title to Union Lot 59A by failing to perform annual assessment work of the value of $100 on each of the claims contained within that tract, and that the burden was on the respondent to prove affirmatively that it had performed all assessment work thereon as required by the statutes and the rules of Kennebec Hill Mining District, in which said claims were located.\\nThe question of forfeiture of a mining claim, as distinguished from abandonment thereof, depends entirely upon proof of the violation of the federal or state statutes with relation to the performance of annual assessment work, or upon a violation of the district mining rules in that regard. (Kramer v. Gladding, McBean & Co., 30 Cal.App.2d 98 [85 P.2d 552].) The sole question is whether the terms of the statutes or the district rules have been complied with. (2 Bindley on Mines, 3d ed., 1597, \\u00a7 643.) In the present case, the trial court found that Union Lot 59A consists of at least twelve contiguous claims, aggregating 192.32 acres of land, which claims were separately located by respondent's predecessors in title prior to 1866, and subsequently acquired by Union Gravel Mining Company, a corporation, on February 11, 1875, and thereafter purchased by the respondent on June 30, 1906, and consolidated by it for the purpose of operating a placer mining enterprise; that during certain designated years prior to 1930, when the plaintiffs relocated the claims, the respondent performed annual labor on said Union Lot 59A of the value of only $100 per year. In other language, by necessary inference the court found that the respondent failed to perform more than $100 worth of work on said entire consolidated group of claims during any one of those designated years. The record supports that affirmative finding. The theory upon which the court concluded that respondent's title to the claims was not forfeited for failure to perform the required annual assessment work was that, in spite of the fact that it had not performed $1,200 worth of work per annum on said twelve claims during those designated years, it had nevertheless fulfilled the requirements of the statutes by doing $100 worth of work per annum on Union Lot 59A because \\\"ever since the year 1909\\\" the respondent \\\"treated, regarded, and held out to all the world said 'Lot 59A' as a single placer mining claim.\\\"\\nWhen the law requires annual assessment work to be performed the owner of mining claims may forfeit his title for failure to conform to the law when someone else has entered with intention to relocate the claims. (Kramer v. Gladding, McBean & Co., supra; 2 Bindley on Mines, 3d ed., 1598, \\u00a7 643; 30 U.S.C.A. 147, \\u00a728.) It is true that an association of persons, since May 16, 1872, may jointly locate a mining claim containing not more than 160 acres of land and may fulfill the requirements of the law by annually performing work on the tract for the benefit of all claims of the value of $100 only. (Reeder v. Mills, 62 Cal.App. 581 [217 P. 562].) But when several contiguous claims are separately located, even though they may be subsequently consolidated for mining operations, while annual assessment work may be done on one claim for the benefit of all of them, the work must aggregate in value the sum of $100 for each consolidated claim. (Morgan v. Myers, 159 Cal. 187 [113 P. 153]; Chambers v. Harrington, 111 U.S. 350 [4 S.Ct. 428, 28 L.Ed. 452]; 17 Cal.Jur. 393, \\u00a7 73; 2 Bindley on Mines, 3d ed., 1553, \\u00a7 630(3); 30 U.S.C.A. 200, notes, 323, 324.) In the present case the respondent did not perform annual assessment labor during certain specified years of a value in excess of $100 on the consolidated claims designated Union Lot 59A.\\nSince the record in this case does affirmatively show that Union Lot 59A consists of twelve placer claims which were separately located prior to 1866 by respondent's predecessors in title, and that respondent performed only $100 worth of work annually on the entire tract during several years prior to plaintiffs' relocation of the claims, we are of the opinion the court erred in determining that was a sufficient compliance with the statutes and that its title was therefore not forfeited on that account. Since the twelve claims were originally separately located, the respondent was not authorized by law to subsequently purchase and consolidate them for placer mining purpose and thus escape from the necessity of fulfilling the statutes with respect to annual assessment work by merely performing $100 worth of labor per annum on the entire group of claims. This is true even though the purchaser of separately located claims subsequently consolidates them and \\\"holds them out to the world\\\" as one placer mining claim. There is a clear distinction between a \\\"mining claim\\\" and a \\\"location.\\\" In 2 Bindley on Mines, 3d ed., p. 1539, \\u00a7 628, the author says in that respect :\\n\\\"A, B and C each perfect a lode location on the same vein, the locations being contiguous. Each is required, under the law, to work, or represent, his individual claim to the extent of one hundred dollars annually. A subsequently purchases the locations of B and C, and the three locations may consti tute his 'claim' in a colloquial sense. But he will not be permitted thereafter to hold all three by performing simply one hundred dollars' worth of work within the limits of one, or distributing that amount in labor and improvements over the three. ' '\\nOn page 1540 of the text last cited, the author declares that separately located contiguous claims may not be subsequently purchased and consolidated so as to exempt the holder from performing more than $100 worth of work on the entire tract. He says in that regard:\\n\\\"The individual locator of a twenty acre tract must necessarily perform one hundred dollars' worth of labor on his claim annually. By a purchase of other contiguous locations, and thus augmenting his surface area, we do not see how he can be relieved from fulfilling the requirement as to every individual location which may be ultimately grouped and constitute his 'mining claim,' in a colloquial sense. If such a rule were to prevail,\\u2014as there is no limit to the number of claims which one may acquire by purchase,\\u2014he might hold five hundred or more acres with the aggregate annual expenditure of one hundred dollars, and thus practically defeat the purpose of the law.\\\"\\nIn Revised Statutes of the United States, section 2324 (30 U.S.C.A., p. 147, \\u00a7 28), it is provided that:\\n\\\"On each claim located after the 10th day of May 1872, and until a patent has been issued therefor, not less than $100 worth of labor shall be performed or improvements made during each year.\\\"\\nThe same rule applies to both lode and placer claims. (Carney v. Arizona Gold Min. Co., 65 Cal. 40 [2 P. 734]; 36 Am.Jur. p. 366, \\u00a7 115; 2 Bindley on Mines, 3d ed., p. 1534, \\u00a7 625.)\\nSection 2314 of the California Public Resources Code, formerly section 1426 of the Civil Code (Stats. 1909, p. 315), provides that:\\n\\\"The amount of work done or improvements made during each year to hold possession of a mining claim shall be that prescribed by the laws of the United States, to-wit: One hundred dollars annually.\\\"\\nIt follows that the court erred in holding that the respondent was not required to perform more than $100 worth of work annually on the twelve separately located claims even though it did subsequently purchase and consolidate, them for placer mining purpose.\\nNor were the twelve claims composing Union Lot 59A exempt from the performance of annual assessment work as required by the federal and state statutes above referred to, merely because they were actually located prior to May 10, 1872. In the ease of Morgan v. Tillottson, 73 Cal. 520 [15 P. 88], that precise question was determined adversely to the respondent's contention in this case. In that ease plaintiffs' predecessors in interest located the placer mining claim in question in 1855, before the enactment of federal statute, section 2324, above referred to. By mesne conveyances the plaintiffs subsequently acquired title thereto. In 1884 they performed annual assessment work of the value of only $26. In January, 1885, the defendants relocated the claim and thereafter performed all assessment work required by law. Plaintiffs commenced an action against the defendants to recover possession of the claim. The trial court determined the case in favor of the plaintiffs. On appeal that judgment was reversed on the ground that plaintiffs forfeited their title and right to possession of the claim for failure to perform annual work on the claim in the year 1884, of the value of $100, as required by the federal statute. By reference to the briefs filed in the Supreme Court in that case, we find that the very question as involved was to whether the performance of annual assessment work on claims which are located prior to May 10, 1872 is required. In the petition for rehearing we find this statement:\\n\\\"There is but one point in the cause, and that is sharply outlined in the record. . . .\\n\\\"The claim in question is a placer mining claim; it was located prior to May 10, 1872.\\n\\\"Does the law of Congress (Sec. 2324, Rev. Stat.), require annual expenditures upon such placer mining claims located prior to its enactment (May 10, 1872) ?''\\nOn the authority of that case we are bound to conclude that the federal and state statutes requiring the performance of annual work on placer mining claims apply to claims which were located prior to May 10, 1872, exactly as they do to those which are subsequently located.\\nIt is true that the law does not favor forfeitures. (17 Cal.Jur. 388, \\u00a7 71.) The burden was on the plaintiffs, as the subsequent reloeators of the claims included in Union Lot 59A, to prove affirmatively by clear and satisfactory evidence, that the respondent forfeited its claims for failure to conform to the law. (Callahan v. James, 141 Cal. 291 [74 P. 853]; Quigley v. Gillett, 101 Cal. 462 [35 P. 1040]; Goldberg v. Bruschi, 146 Cal. 708 [81 P. 23]; Musser v. Fitting, 26 Cal.App. 746 [148 P. 536]; Richen v. Davis, 76 Ore. 311 [148 P. 1130] ; 40 C.J. 846, \\u00a7 306; 30 U.S.C.A. 205, notes 366 and 367.) But the uneontradieted evidence in this case shows that the defendants did not perform the annual labor required by law for the specified years prior to the plaintiffs' location of the claims in 1930, as the court found. We assume that fact is conceded. It is not disputed. Regardless of which side furnished that proof of failure to perform the annual assessment work, it is clearly and satisfactorily established and fully meets the requirements of the law with respect to the burden of proof. It follows that respondent's failure to perform the required assessment work resulted in a forfeiture of its title to the claims in question, and that the claims thereupon became \\\"open to relocation in the same manner as if no location of the same had ever been made.\\\" (U.S.Rev.Stat., \\u00a7 2324.)\\nWhen a case is tried on the theory that $100 worth of annual labor on a particular claim was actually performed, and the evidence supports that fact, the title to that particular claim may not be deemed to have been forfeited, merely because the labor performed is insufficient to cover the statutory requirement and may not inure to the benefit of other contiguous claims in a group. (Utah Standard Mining Co. v. Tintic Indian Chief Mining & Milling Co., 73 Utah 456 [274 P. 950, 956] ; McGarrity v. Byington, 12 Cal. 426; 30 U.S.C.A. 200, note 324.) That principle is raised for the first time in this case on petition for rehearing. We are directed to no evidence to sustain a finding that $100 worth of work was performed on a particular claim. The case was tried on the sole theory that $100 worth of annual work was adequate for the entire consolidated group of twelve claims designated as \\\"Union Lot 59A.\\\" We are of the opinion we are not authorized to remand the case for trial on a theory entirely different from that upon which it was tried. The principle is not applicable under the circumstances of this case.\\nThat portion of the judgment from which this appeal was perfected is reversed and the court is directed to render judgment in favor of plaintiffs quieting title in them to the placer mining claims included in Union Lot 59A, as prayed for.\\nAdams, P. J., and Peek, J., concurred.\\nA petition for a rehearing was denied May 26,1944, and the opinion was modified to read as above.\\nRespondent's petition for a hearing by the Supreme Court was denied June 26, 1944.\"}"
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+"{\"id\": \"4665714\", \"name\": \"FRANK BRANNEN, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and STATE COMPENSATION INSURANCE FUND, Respondents\", \"name_abbreviation\": \"Brannen v. Workers' Compensation Appeals Board\", \"decision_date\": \"1996-06-12\", \"docket_number\": \"No. B092532\", \"first_page\": \"377\", \"last_page\": \"384\", \"citations\": \"46 Cal. App. 4th 377\", \"volume\": \"46\", \"reporter\": \"California Appellate Reports, Fourth Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T21:53:13.885340+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FRANK BRANNEN, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and STATE COMPENSATION INSURANCE FUND, Respondents.\", \"head_matter\": \"[No. B092532.\\nSecond Dist., Div. Two.\\nJune 12, 1996.]\\nFRANK BRANNEN, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and STATE COMPENSATION INSURANCE FUND, Respondents.\\nCounsel\\nRobin and Carmack and Robert Marc Robin for Petitioner.\\nKrimen, Klein, Da Silva, Daneri & Bloom and Louis Harris for Respondents.\", \"word_count\": \"2356\", \"char_count\": \"15562\", \"text\": \"Opinion\\nFUKUTO, J.\\nThree and one-half years after the parties had stipulated to industrial injury and to an award for it, the Workers' Compensation Appeals Board (board) rescinded the stipulation and rendered a new finding of no such injury, based on a conflicting medical opinion and a legal interpretation contrary to a governing Court of Appeal decision. Because this disposition exceeded the board's proper authority, we annul it.\\nStatement\\nPetitioner Frank Brannen was employed between 1986 and 1989 as a mechanic, manager, and driver by Cities Towing, Incorporated. Laboring to improve the business, petitioner worked seven days a week, sometimes seventeen hours a day. His work continually exposed him to exhaust fumes and dust. In September 1989, petitioner developed shortness of breath, but continued working. He soon collapsed at home and was hospitalized, with a diagnosis of viral bronchitis. Petitioner returned to work for portions of two days, but again lost consciousness and was hospitalized with viral meningitis.\\nAfter his infection resolved, petitioner continued to experience pains and difficulty breathing, and he was referred to Dr. Lineback, an internist. Dr. Lineback diagnosed a mild airflow obstruction, related to the bronchitis, and prescribed bronchodilator medicine. He opined that petitioner's exposure to irritating exhaust fumes at work had aggravated his symptoms. Petitioner subsequently experienced several dramatic instances of breathing difficulty, for which he was given portable oxygen.\\nPetitioner filed a workers' compensation application in October 1989. By late 1991, he had ceased working and had become dependent on the portable oxygen, which he used constantly. Extremely depressed, petitioner had four times attempted suicide, in one case wounding his arm when attempting to shoot himself in the heart. Petitioner also was undergoing psychiatric treatment.\\nAt this point, petitioner and the employer's insurer, respondent State Compensation Insurance Fund (SCIF), entered into a \\\"Stipulations with Request for Award,\\\" to the effect that petitioner had sustained injury to his internal system and psyche, arising out of and in the course of employment. SCIF accepted liability for treatment, retroactive to September 1989, the onset of petitioner's illness. The issues of extent of temporary and permanent disability were reserved, with further agreement that \\\"Parties will utilize AME's [agreed medical examiners] for issues of nature and extent of internal (pulmonary) and psychiatric disability, including apportionment to non-industrial factors.\\\" Based on this stipulation, an award was made to petitioner in October 1991.\\nAnother internist, Dr. Levister, was appointed agreed medical examiner (AME) with respect to petitioner's physical disability. He reported that petitioner had experienced an airway obstruction as of his hospitalization and initial visits to Dr. Lineback in 1989. Dr. Levister deemed it possible, but not probable, that petitioner's work had adversely impacted the viral infection. However, petitioner presently experienced no residual, physical respiratory disability, his pulmonary function tests being within normal range. Although he thus had no actual, physical need for the portable oxygen he used, petitioner believed in good faith that he still suffered from a pulmonary disability, related to his work.\\nDr. Feldman, the AME in psychiatry, diagnosed petitioner's condition as major depression, and found him totally disabled from working. The psychiatric illness derived from petitioner's respiratory problems. Dr. Feldman found that petitioner presently believed he had a severe, disabling breathing problem. Ultimately, Dr. Feldman opined, the \\\"etiology\\\" of the mental illness would be the same as that of the physical condition.\\nPursuant to the prior stipulation, the workers' compensation judge (WCJ) found that petitioner had sustained industrial injury to his internal system and psyche. Based on the AME's' reports, the WCJ further found petitioner to be 100 percent permanently disabled, and in need of further medical care.\\nSCIF petitioned the board for reconsideration, on grounds the record did not support a finding of industrial injury. In its prayer, SCIF requested that a finding of no industrial injury be issued and that, pursuant to Labor Code section 5803, the stipulated award of October 1991 be \\\"rescinded as contrary to the record.\\\"\\nThe board granted reconsideration and, with one member dissenting, ruled for SCIF. Observing that \\\"[t]he issue presented is one of causation,\\\" the board at first acknowledged that \\\"[t]he applicable law was stated by the Second Appellate District,\\\" in Cooper v. Workers' Comp. Appeals Bd. (1985) 173 Cal.App.3d 44 [218 Cal.Rptr. 783] (hereafter Cooper). In Cooper, the applicant, exposed to asbestos at work, had been examined at the employer's behest by a physician who opined the applicant was totally disabled due to asbestosis. This diagnosis proved incorrect, but the applicant, convinced he was dying of asbestosis, developed a depressive, hysterical psychiatric illness. The court held the psychiatric disability compensable, because it had been caused in fact by the industrial exposure and resultant medical examination and diagnosis.\\nA dissent in Cooper, supra, 173 Cal.App.3d at pages 50-51, criticized the majority's citation of section 3202 (providing for liberal construction of the workers' compensation law), and opined that absent any workplace physical harm, an erroneous diagnosis of it could not ground a finding of industrially caused psychiatric injury. More recently, in Rodriguez v. Workers' Comp. Appeals Bd. (1994) 21 Cal.App.4th 1747, 1760, footnote 4 [27 Cal.Rptr.2d 93] (Rodriguez), another division of this district distinguished Cooper on its facts, and agreed with the Cooper dissent's observation that section 3202 did not apply to resolving factual issues.\\nHaving initially acknowledged that Cooper, supra, 173 Cal.App.3d 44, provided the relevant standards, the board in the present case proceeded to state: \\\"We agree with [the] dissenting opinion in Cooper and the comments in Rodriguez and hold that applicant must demonstrate some industrial exposure, causing or contributing to the underlying physical injury from which the psychiatric disability arose, in order for there to be a compensable industrial psychiatric injury.\\\" The board then held that petitioner's psychiatric disability could not be so connected to his employment, because it stemmed from the original pulmonary disability which Dr. Levister had been unable to characterize as work related. Without referring to Dr. Line-back's opinion of industrial impact, the board concluded that petitioner had failed to \\\"demonstrate that there was actually something in the workplace that caused or contributed to the physical condition that caused the psychiatric disability.\\\"\\nThe board then found good cause under section 5803 to rescind the stipulated award, because it had preceded the AME reports, by virtue of which, the board stated, \\\"the facts stipulated to have changed. Where Dr. Lineback found an industrial component to applicant's disability, the AME, Dr. Levister, did not.\\\" The board cited Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 856, 865-866 [157 Cal.Rptr. 355] (Huston), to the effect that an executed stipulation may be rescinded where the facts stipulated to or the underlying conditions have changed.\\nDiscussion\\nIn ruling that petitioner had not suffered a compensable, industrial injury, the board overrode and rescinded the parties' stipulation to the contrary, and the award thereon, previously extant for three and one-half years. This disposition was improper.\\nSection 5803 accords the board continuing jurisdiction to rescind or revise its awards, \\\"upon good cause shown.\\\" Such cause may consist of newly discovered evidence previously unavailable, a change in the law, or \\\". . . any factor or circumstance unknown at the time the original award or order was made which renders the previous findings and award 'inequitable.'\\\" (LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234, 242 [193 Cal.Rptr. 547, 666 P.2d 989]; see id. at p. 241.)\\nMore specifically, an award based an executed stipulation may be reopened and rescinded if the stipulation \\\"has been 'entered into through inadvertence, excusable neglect, fraud, mistake of fact or law, where the facts stipulated have changed or there has been a change in the underlying conditions that could not have been anticipated, or where special circumstances exist rendering it unjust to enforce the stipulation.' \\\" (Huston, supra, 95 Cal.App.3d at pp. 865-866.) On the other hand, \\\" ' [w]hen there is no mistake but merely a lack of full knowledge of the facts, which . is due to the failure of a party to exercise due diligence to ascertain them, there is no proper ground for relief.' \\\" (Id. at p. 866.) Thus, in Liberty Mut. Ins. Co. v. Workers' Comp. Appeals Bd. (1981) 118 Cal.App.3d 265, 276 [173 Cal.Rptr. 349], we approved the board's refusal to conduct substantial evidence review of a finding of specific injury, because the insurer had stipulated to it, and had not shown good cause under Huston to be released from the stipulation.\\nIn the present case, the board's basis for rescinding the stipulation to petitioner's industrial injury was that \\\"the facts stipulated to ha[d] changed\\\" (see Huston, supra, 95 Cal.App.3d at pp. 865-866), in that after the stipulation Dr. Levister, the AME, had rendered a negative opinion regarding industrial causation, contrary to the opinion of Dr. Lineback that preceded the stipulation. For several reasons, the advent of Dr. Levister's opinion did not provide grounds to rescind the stipulation and award.\\nFirst, it is dubious that a newly conflicting medical opinion may properly be considered a \\\"change in the facts stipulated to.\\\" Medical opinions by definition are not facts, and their frequent variety and conflict in a given case bespeak their subjectivity and malleability. To say that a new medical opinion about an issue suffices as good cause to undo a stipulation resolving it would substantially undermine the intended and expected utility and durability of stipulations. \\\"Stipulations are designed to expedite trials and hearings and their use in workers' compensation cases should be encouraged.\\\" (Robinson v. Workers' Comp. Appeals Bd. (1987) 194 Cal.App.3d 784, 791 [239 Cal.Rptr. 841] (Robinson).) A party cannot be permitted to withdraw from a stipulation simply because another expert has a different opinion. Recognizing this, the Robinson court refused to allow relief from a stipulation that conflicted with an independent medical examiner's (IME's) opinion, for the very reason that there were other doctors' opinions of record that conflicted with it, and supported the stipulation. (Ibid.)\\nJust as the IME's opinion in Robinson, supra, 194 Cal.App.3d 784, did not provide good cause for undoing the stipulation in that case, that Dr. Levister opined as AME did not justify using his opinion to trump the stipulation and award in this case. In fact, the structure of the proceedings made this especially inappropriate. Dr. Levister's appointment was a product of the stipulation itself. Under it, the AME's were to opine about the \\\"nature and extent of internal (pulmonary) and psychiatric disability, including apportionment to non-industrial factors\\\"\\u2014not whether there had been an industrial injury, a question the stipulation had disposed of. The board's use of AME opinions to overturn the stipulation thus was improper. Indeed, redetermination of the case on the basis of those opinions, without affording petitioner an opportunity to adduce evidence in support of the stipulated determination, may have denied due process. (Turner Gas Co. v. Workmen's Comp. Appeals Bd. (1975) 47 Cal.App.3d 286, 291-292 [120 Cal.Rptr. 663] [\\\"[A]rguably, due process dictates that [a party to a stipulation] always must be given notice and the opportunity to present evidence on a material fact covered by the stipulation before it is disregarded.\\\"].)\\nThe board therefore should not have rescinded and disregarded the parties' stipulation to industrial injury. In light of that stipulation, as well as the opinion of Dr. Lineback regarding industrial contribution to petitioner's original respiratory illness, the WCJ's determination of compensable permanent disability was supported by substantial evidence, under Cooper, supra, 173 Cal.App.3d 44. Indeed, petitioner's case was even more traditionally compelling than that in Cooper, because petitioner's psychiatric disability stemmed from actual industrial physical injury, the very prerequisite the board sought to add to Cooper.\\nDisposition\\nThe order under review is annulled. Petitioner shall recover his costs from respondent SCIF.\\nBoren, P. J., and Nott, J., concurred.\\nSection citations hereafter are to the Labor Code. Section 5803 relevantly provides: \\\"The appeals board has continuing jurisdiction over all its orders, decisions, and awards . At any time, upon notice and after an opportunity to be heard is given to the parties in interest, the appeals board may rescind, alter, or amend any order, decision, or award, good cause appearing therefor.\\\"\\nThe board's decision was not jurisdictionally untimely, as petitioner contends. Under section 5804, the board may rescind an award within five years after the date of injury, or upon a petition filed within that period. SCIF's petition was filed within the five-year period.\\nThe record on which the board here relied demonstrates the delicate relativity of such opinions. When asked at deposition whether work-generated fatigue could have been a factor in the petitioner's meningitis, Dr. Levister replied, \\\"I can say that I think it's possible, but I'm not comfortable with probable; I can come to possible but not probable.\\\"\\nThe board's suggestion that petitioner did not honestly believe that his perceived respiratory disability had been impacted by his employment is totally unsupported. (See Albertson's, Inc. v. Workers' Comp. Appeals Bd. (1982) 131 Cal.App.3d 308, 313-315 [182 Cal.Rptr. 304] [eschewing compensation for claims of industrial connection that are \\\"after the fact rationalizations''].) Both AME's testified to the contrary, Dr. Feldman qualifying his opinion only to avoid legal conclusions. And petitioner's filing his application before he saw Dr. Lineback, cited by the board, as much supports an independent belief of industrial involvement as it does anything else.\\nThe board's effort to redefine and restrict Cooper thus was gratuitous\\u2014and also improper. Like other inferior courts, the board was and is jurisdictionally required to adhere to and follow the decisions of the Court of Appeal. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937]; Ryerson Concrete Co. v. Workmen's Comp. Appeals Bd. (1973) 34 Cal.App.3d 685, 688 [110 Cal.Rptr. 319].) Neither the presence of a dissent in Cooper, nor the passing criticism of it in obiter dictum in a later decision (Rodriguez, supra, 21 Cal.App.4th at p. 1760, fn. 4), authorized disregarding Cooper's holding.\"}"
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+"{\"id\": \"4909478\", \"name\": \"THOMAS SMITH, Plaintiff and Appellant, v. CALIFORNIA STATE BOARD OF PHARMACY, Defendant and Respondent\", \"name_abbreviation\": \"Smith v. California State Board of Pharmacy\", \"decision_date\": \"1995-07-31\", \"docket_number\": \"No. D021247\", \"first_page\": \"229\", \"last_page\": \"247\", \"citations\": \"37 Cal. App. 4th 229\", \"volume\": \"37\", \"reporter\": \"California Appellate Reports, Fourth Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T00:56:13.137601+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THOMAS SMITH, Plaintiff and Appellant, v. CALIFORNIA STATE BOARD OF PHARMACY, Defendant and Respondent.\", \"head_matter\": \"[No. D021247.\\nFourth Dist., Div. One.\\nJuly 31, 1995.]\\nTHOMAS SMITH, Plaintiff and Appellant, v. CALIFORNIA STATE BOARD OF PHARMACY, Defendant and Respondent.\\nCounsel\\nSheldon Sherman for Plaintiff and Appellant.\\nDaniel E. Lungren, Attorney General, Ronald Russo, Assistant Attorney General, Anthony M. Summers and Ronald A. Casino, Deputy Attorneys General, for Defendant and Respondent.\", \"word_count\": \"6496\", \"char_count\": \"41427\", \"text\": \"Opinion\\nNARES, J.\\nThomas Smith, former pharmacist-in-charge of the Parkway Pharmacy in San Diego (Parkway), appeals a judgment denying his petition for a writ of administrative mandamus. Smith seeks to set aside a decision of the California State Board of Pharmacy (Board) adopting a decision of an administrative law judge (ALJ) revoking his license to practice pharmacy. The ALJ found Smith's license was subject to discipline for unprofessional conduct due to his (1) clearly excessive furnishing of controlled substances (Bus. & Prof. Code, \\u00a7 4350.5, subd. (e) ); (2) deceit and dishonesty in removing and keeping pharmacy records (\\u00a7 4350.5, subd. (c)); and (3) failing to preserve records of prescriptions filled for three years (\\u00a7\\u00a7 4350.5, 4232, 4331).\\nSmith contends (1) the failure of the accusation to inform him that the Board was charging or going to rely upon a negligence theory constituted a procedural due process violation; (2) his license could not have been revoked based on the finding of ordinary negligence; and (3) the lower court should have reviewed the penalty imposed and found it was an abuse of discretion as being excessive.\\nAs to the charge of clearly excessive furnishing of controlled substances, we conclude Smith was deprived of due process. Accordingly, we reverse.\\nProcedural and Factual History The Charges Against Smith\\nAn accusation dated September 3, 1991, by Board executive officer Patricia F. Harris sets forth the Board-licensed status of Smith since October 3, 1984, and of James Roth, doing business as Parkway, since July 1, 1982. Under the heading \\\"Statutes\\\" the accusation states it is made with reference to a list of 13 statutory provisions which it cites and describes. Among those descriptions are:\\n\\\"4.................................\\n\\\"b. Section 4350.5 provides that the Board may discipline a license holder who is guilty of unprofessional conduct, which shall include, but is not limited to the violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation, of any provision or term of Chapter 9, Division 2, of the Code or of the applicable federal and state laws and regulations governing pharmacy including regulations established by the Board.\\n\\\"c. Section 4350.5(c) provides that unprofessional conduct includes the commission of any act involving moral turpitude or dishonesty whether committed in the course of relations as a licensee or otherwise.\\n\\\"d. Section 4350.5(e) provides that unprofessional conduct includes the excessive furnishing of controlled substances in violation of subdivision (a) of section 11153 of the Health and Safety Code.\\n\\\"f. Section 4054 provides the following: (1) that every pharmacy which dispenses prescriptions shall be in charge of a registered pharmacist; (2) that every pharmacy shall have a pharmacist-in-charge who shall be responsible for the pharmacy's compliance with laws and regulations, both state and federal, pertaining to the practice of pharmacy .\\n<6\\n\\\"h. Section 4232 provides in relevant part that all records of sale of dangerous drugs shall be open to inspection by authorized officers and shall be preserved for at least three years from the date of making. The owner, officer, and partner of any pharmacy shall be jointly responsible, with the pharmacist-in-charge, for maintaining the records.\\n\\\"i. Section 4331 provides that all prescriptions filled shall be kept on file and open for inspection by duly constituted authorities for at least three years.\\\"\\nAlso included in this part of the accusation are descriptions of Health and Safety Code sections with reference to which the accusation is made, as follows:\\n\\\"5.................................\\n\\\"a. Section 11179 provides that a person who fills a prescription shall keep it on file for at least three years from the date of filling it.\\n\\\"b. Section 11153(a) provides that a prescription for a controlled substance shall only be issued for a legitimate purpose by an individual practitioner acting in the usual course of his or her professional practice. The pharmacist who fills the prescription shares a corresponding responsibility with the prescribing practitioner for proper prescribing.\\n\\\"e. [sic] Section 11158(a) provides that no controlled substances classified in Schedules III or IV shall be dispensed without a prescription.\\\"\\nUnder the heading \\\"Facts Underlying Allegations Against Smith\\\" the accusation lists numerous charges naming Smith as the subject and using such verbs in the active voice as, \\\"Smith dispensed,\\\" \\\"Smith furnished,\\\" or \\\"Smith removed.\\\" These factual allegations against Smith read as follows:\\n\\\"7. Respondent Thomas Smith has subjected his license to discipline based on the following facts:\\n\\\"a. On or about January 18, 1989, 38-year-old John Michael Stoner, whose true name was John Globish, was found dead in a motel room in San Diego. Codeine and diazepam poisoning was determined to be the cause of death. Seven prescriptions dispensed by respondent Parkway Pharmacy, including two for diazepam and one for cocaine, were discovered in Stoner's motel room.\\n\\\"b. On or between July 11, 1988, and December 9, 1988, respondent Smith, while employed by Parkway Pharmacy as pharmacist-in-charge, dispensed approximately eighteen (18) prescriptions of diazepam to Stoner in quantities of 100-10 mg. tablets per prescription, often only a few days apart. Over the above period of time, Stoner was furnished approximately 1800 tablets of diazepam by respondent Smith.\\n\\\"c. In addition and with reference to the conduct described in paragraph b above, respondent Smith dispensed diazepam to Stoner without an authorized prescription, written or oral, from any prescribing physician. Dr. Kenneth Easier, whose name appeared on the prescriptions as the prescribing physician, did not authorize the furnishing of any drug or substance to Stoner.\\n\\\"d. On or between May 27, 1988, and December 9, 1988, respondent Smith, while employed by respondent Parkway Pharmacy as the pharmacist-in-charge, dispensed eighteen (17) [sic] prescriptions of APAP codeine to Stoner in quantities of 200-60 mg. tablets per prescription, often only a few days apart. During the above period of time, respondent Smith dispensed approximately 3400 tablets of codeine to Stoner.\\n\\\"e. In addition and with reference to conduct described in paragraph d above, respondent Smith dispensed codeine to Stoner without a prescription having been written by a prescribing physician. Dr. Kenneth Easier, whose name appeared on the codeine prescriptions as the prescribing physician, did not authorize the furnishing of any drug or substance to Stoner.\\n\\\"f. On or between August 6, 1988, and December 9, 1988, respondent Smith, while employed as pharmacist-in-charge of respondent Parkway Pharmacy, dispensed approximately sixteen (16) prescriptions of 20 .25 mg. tablets of halcion to Stoner, often only a few days apart. During the above period of time, respondent Smith dispensed approximately 320 tablets of halcion to Stoner.\\n\\\"g. In addition and with reference to the conduct described in paragraph f above, respondent Smith dispensed halcion to Stoner without a prescription having been written by a prescribing physician. Dr. Kenneth Easier, whose name appeared on the halcion prescriptions as the prescribing physician, did not authorize the furnishing of any drug or substance to Stoner.\\n\\\"h. Based on the conduct described in paragraphs 5b, 5d and Sf[ ] above, respondent Smith is guilty of unprofessional conduct under sections 4350.5, 4350.5(c) and 4350.5(e) with reference to section 11153(a) of the Health and Safety Code, in that he furnished excessive amounts of controlled substances to John Stoner which ultimately resulted in his death.\\n\\\"i. Based on the conduct described in paragraphs 5c, 5e and 5g[ ] as delineated above, respondent Smith is in violation of sections 4350.5 and 4227(a) with reference to Health and Safety Code section 11158(a) in that he furnished dangerous drugs to Stoner without a legally authorized prescription having been written therefor.\\n\\\"j. On or about January 25, 1989, respondent Smith removed several boxes of prescription and pharmacy records from Parkway Pharmacy and without the consent or knowledge of James Roth, the owner of Parkway Pharmacy.\\n\\\"k. Based on the conduct described in paragraph j above, respondent Smith is guilty of unprofessional conduct and is subject to disciplinary [sic] pursuant to section 4350.5(c), in that respondent Smith removed records from Parkway Pharmacy for the purpose of concealing evidence concerning Stoner's death.\\\" (Italics added.)\\nAll but one of the violations alleged in the above quoted provisions setting forth the facts underlying the allegations in the accusation include a general citation (without specifying a particular subdivision) to section 4350.5, unprofessional conduct, which encompasses \\\"violating or attempting to violate, directly or indirectly, or assisting or abetting the violation of or conspiracy to violate any provision or term\\\" of the pharmacy and controlled substance laws and regulations, both state and federal.\\nAfter setting forth factual allegations against Parkway, the accusation prays for revocation or suspension of Smith's and Parkway's licenses, and such other action as the Board deems appropriate to protect the public health, safety and welfare.\\nSmith's Initial Employment at Parkway Pharmacy\\nIn October 1984 the Board issued Smith a license to practice pharmacy. In mid-April 1988, after several months of working as a part-time pharmacist at Parkway relieving the pharmacist-in-charge, John Jennings, about once a week, Smith replaced Jennings as the pharmacist-in-charge. Jennings quit Parkway because its unlicensed owner, Jim Roth, was supplying prescriptions to people including Roth's friend, John Stoner, and going into the pharmacy when Jennings was not there. When Jennings quit he told Smith about Roth's having access to the pharmacy by means of an extra key.\\nStoner's Prescriptions From Parkway\\nAfter Stoner was found dead in his San Diego motel room on January 18, 1989, it was determined he apparently had ingested drugs. Of the nine prescription bottles containing drugs found at the scene of Stoner's death, seven were labeled from Parkway and contained such controlled substances as APAP/Codeine, Diazepam and Halcion, as well as Dycill and Prednisone. APAP/Codeine, Diazepam and Halcion are dangerous drugs available only by prescription (\\u00a74211) and are used, respectively, for relief of mild to moderately severe pain, anxiety disorder and muscle spasm, and insomnia. During Smith's employment as Parkway's pharmacist-in-charge (and sole pharmacist), the following amounts of these three drugs and their respective maximum dosages were dispensed from Parkway to Stoner during the dates indicated:\\nAPAP/Codeine\\u2014Maximum 24-hour dose, 6 tablets:\\nMay 27, 1988, to December 9,1988: 17 prescriptions in quantities of 200, 60-milligram tablets each, for a total of 3,400 tablets, representing an average of 17 tablets per day for the 6.5-month period. In the December 2 to December 9 portion of this period, Parkway dispensed a total of 300 tablets to Stoner, an average of 37.5 tablets per day.\\nDiazepam\\u2014Maximum 24-hour dose, 4 tablets:\\nJuly 11,1988, to December 9,1988: 18 prescriptions in quantities of 100, 10-milligram tablets each, for a total of 1,800 tablets, representing an average of about 11 tablets per day for about 5 months. In the August 20 to September 9 portion of this period, Parkway dispensed a total of 400 tablets to Stoner, an average of 19 tablets per day.\\nHalcion\\u2014Maximum 24-hour dose, 2 tablets:\\nJuly 11, 1988, to December 9, 1988: 18 prescriptions consisting of 352 tablets at .25 milligrams each. In the November 4 to November 17 portion of this period Parkway dispensed a total of 80 tablets, an average of more than 5 tablets per day.\\nAs to each of the three circumstances the Board adopted the ALJ's finding it constituted clearly excessive furnishing of a controlled substances within the meaning of section 4350.5, subdivision (e).\\nStoner had been a regular customer at Parkway since at least 1985. He and Roth were friends. Kenneth Easier, M.D., a longtime friend of Roth, had his office in the same building as Parkway. Roth employed Easier's son as a delivery man. On occasion, Easier, Roth and Stoner were seen talking together in the pharmacy. Each of the controlled substance prescriptions described above was purportedly written or authorized by Easier.\\nSmith's Awareness and Conduct Relating to Stoner and Roth\\nAt some point while he was pharmacist-in-charge, Smith became aware that Roth was dispensing drugs to Stoner, purportedly for a painful venereal condition. Smith had several arguments with Roth about the proper manner of operating the pharmacy and he believed Roth had stopped the improper dispensing.\\nIn November 1988 Smith suspected Roth had keys to the pharmacy and was entering the licensed area when the pharmacy was closed. Smith confronted Roth about his improper presence in the licensed area and in late November or early December, Smith installed a security system to prevent Roth from entering the pharmacy alone. The records indicate that Stoner's last prescription from Parkway was filled December 9, 1988.\\nComputer Records Naming Smith as Dispensing Pharmacist for Stoner\\nThe computer-generated patient profile for Stoner produced during the investigation of this case reflects that for each of the prescriptions issued to him in 1988, Smith was the dispensing pharmacist. Although Stoner had been obtaining the controlled substance prescriptions from Parkway on a regular basis since December 1987, he began doing so on a weekly basis in August 1988, while Smith was the pharmacist-in-charge. Concerning these facts the ALJ found in part: \\\"Smith cannot disclaim all responsibility for the excessive furnishing of controlled substances to Stoner. As pharmacist-in-charge and the only pharmacist in the store, he is responsible for knowing or making reasonable attempts to know the amount of controlled substances issued to a regular customer. . . . Smith had sufficient reason to believe, at least by August, 1988, that controlled substances were being improperly dispensed to Stoner either by Roth or one of the clerks. The medications dispensed to Stoner were entered into the computer, with or without having a proper prescription to support it. It was Smith's duty to review and sign the daily reports which would have revealed the drugs dispensed to Stoner. Respondent was too busy to review the daily reports and, because he assumed he knew everything that was dispensed, saw no need to review the reports. After being advised by his sister[ ] of Stoner's special will-call bags respondent could have at least pulled Stoner's patient profile from the computer to confirm the drugs dispensed. Respondent had the reason and the means to apprise himself of the controlled substances being dispensed to Stoner but he failed to do so.\\\"\\nSmith's Removal of Pharmacy Records\\nSoon after he learned of Stoner's death in January 1989, Smith consulted an attorney who advised him to immediately make copies of certain pharmacy records. In late January, Smith and his attorney removed six boxes of prescriptions and computer printouts. The records were not immediately copied. They remained with Smith's attorney until early March 1989. Neither Smith nor his attorney informed Roth or any public authority the records had been taken.\\nOn March 3,1989, a Board investigator interviewed Smith and asked if he had removed any records. Smith admitted taking the records and agreed to have them released by his attorney. On March 10, 1989, Smith finally made copies of the records and delivered the originals to the Board investigator.\\nThe ALJ found it was not established Smith removed the records to conceal evidence concerning Stoner's death and under the circumstances it was not unreasonable for Smith to want to preserve the documents. However, the ALJ found in part: \\\"[Smith's] manner of preserving the documents was deceitful. He took records which did not belong to him, without notice to the owner even after they had been safely removed, and without any intent to return them to the owner or to deliver them to proper authorities. Smith is unable to explain how anyone entitled to the documents was supposed to know where they were. It is apparent that the records were copied and returned only because a Board investigator made inquiry. Respondent took records which the pharmacy is required by law to preserve and keep available for inspection for three years. He knew it was wrong to take and keep the documents and the fact that he was encouraged to do so by his attorney does not exonerate him.\\\"\\nAbsent Records of Prescriptions\\nDuring Smith's time as Parkway's pharmacist-in-charge, 10 prescriptions of controlled substances filled for Stoner were not available for inspection, a violation of sections 4232 and 4331 prescribing a 3-year period for maintaining records of prescriptions and keeping the records open for inspection by authorized officers.\\nDiscipline Imposed on Smith\\nFinally, in determining the discipline to impose the ALJ considered the following: \\\"Smith's testimony was in large part not credible. His demeanor and attitude while testifying, his often inconsistent testimony and his non-responsive answers weaken his credibility. Even after his unfortunate experience with Parkway Pharmacy, Smith shows no understanding of his professional responsibilities. His sole interest is in producing a record number of prescriptions per day. He has no insight into the fact that his focus on volume and speed caused him to neglect duties which are meant to safeguard against a wrongful or excessive dispensing of controlled substances. Smith does not accept any responsibility for the excessive dispensing which was allowed to occur on his watch. He chooses to place blame on everyone but himself. He shows no concern or interest in revising his negligent ways. He gives every indication that if allowed to continue the practice of pharmacy he will continue to ignore his statutory and common sense responsibilities.\\\"\\nThus, the ALJ issued, and the Board adopted, an order revoking Smith's license to practice pharmacy.\\nDiscussion\\nI\\nSmith contends the failure of the accusation to inform him that the Board was going to rely upon a negligence theory constituted a procedural due process violation. We agree.\\nGovernment Code section 11503 establishes the constitutionally required notice to the accused of the standards by which the accused's conduct is to be measured. (Wheeler v. State Bd. of Forestry (1983) 144 Cal.App.3d 522, 527 [192 Cal.Rptr. 693], and cases cited.) Government Code section 11503 reads, in part: \\\"The accusation . . . shall set forth in ordinary and concise language the acts or omissions with which the respondent is charged, to the end that the respondent will be able to prepare his defense. It shall specify the statutes and rules which the respondent is alleged to have violated, but shall not consist merely of charges phrased in the language of such statutes and rules.\\\"\\nIn Stearns v. Fair Employment Practice Com. (1971) 6 Cal.3d 205,213 [98 Cal.Rptr. 467, 490 P.2d 1155], the court points out, \\\"[Administrative] proceedings are not bound by strict rules of pleading . So long as the respondent is informed of the substance of the charge and afforded the basic, appropriate elements of procedural due process, he cannot complain of a variance between administrative pleadings and proof.\\\"\\nHere, the accusation's exclusive use of the active voice, \\\"Smith dispensed\\\" and \\\"Smith furnished,\\\" both with reference to the alleged transfers of drugs to Stoner, strongly conveys the message that Smith stood charged with personally dispensing or furnishing the drugs to Stoner. The rectitude of this conclusion is fortified by the Board's prehearing conference statement, \\\"the drugs . . . were dispensed by respondent Smith, the pharmacist in charge at Parkway . . . .\\\" Even more so, this conclusion is supported by the transcript of the hearing before the ALJ in which it is shown that closing argument was the first time it was disclosed the Board was relying on a negligence theory in seeking to uphold the charges against Smith.\\nIn addition, counsel for the Board acknowledged to this court at oral argument that the accusation appears to charge Smith with actually doing the dispensing. More significantly, counsel for the Board also conceded at oral argument that going into the hearing the Board was trying to prove Smith personally, volitionally dispensed the drugs. Counsel also candidly disclosed, however, that when he saw he was not able to prove Smith's personal, volitional dispensing, he shifted the Board's case to one of proving Smith was responsible for the dispensing done by others.\\nOn this record, it is clear that the accusation did not afford Smith the basic, appropriate elements of procedural due process, in that he was misled by the accusation and the prehearing conference statement into believing he needed to prepare a defense to the personal dispensing charges. During the hearing of the charges, it became apparent to the Board that the personal dispensing charges could not be sustained, and so without notice to Smith, the Board shifted its theory to one of negligence by Smith as the pharmacist-in-charge of Parkway. In this connection, we note that section 4054, the provision on which the Board relied to uphold its negligence theory (see fn. 10, ante), is not mentioned in the ALJ's determination of issues. In her resolution of the excessive dispensing charge against Smith, however, the ALJ does make reference to a finding sounding in negligence that Smith \\\"had the reason and the means to apprise himself of the controlled substances being dispensed to Stoner but he failed to do so.\\\"\\nSmith's preservation of the due process issue is shown in his argument:\\n\\\". . . Smith confronted Mr. Roth saying, I think something illegal is going on with Mr. Stoner and you better stop it. [^Q What else is a pharmacist to do? [The Board] has certainly not indicated what a reasonably prudent pharmacist should have done. There's been no testimony that a reasonably prudent pharmacist should have done X, Y, or Z, so what's the standard of care? Are we to speculate on it? Are we to make it up out of whole cloth? What is the evidence to support that contention? Where is it alleged in the accusation? I think that [Board's counsel] is being charitable by saying that maybe the accusation could have been pled more artfully. I mean there's no pleading of negligence.\\n\\\"Are we to abrogate the rules of due process because [Board's counsel] needs a fall-back position? Were we alerted to the fact that we would need an expert witness on standard of care? I think it's certainly a violation of due process to talk about standard of care and negligence in final argument when it hasn't been alleged, hasn't been proven, there's been no testimony.\\\" (Italics added.)\\nWe are aware of the general rule that a pleading alleging the defendant \\\" 'committed a certain act is simply an allegation that in legal effect the defendant is responsible for the act\\u2014i.e., that defendant through his agent committed the act or that defendant personally committed it. Either can be proved under an allegation that \\\"defendant\\\" committed the act.' \\\" (Randle v. Cal. State Bd. of Pharmacy (1966) 240 Cal.App.2d 254, 261 [49 Cal.Rptr. 485, 17 A.L.R.3d 1398], quoting Cooper v. State Board of Equalization (1955) 137 Cal.App.2d 672, 678 [290 P.2d 914].) By its terms this rule applies when the doctrine of respondeat superior is being used to impose liability on an owner of a business for the acts or omissions of the employees of that owner. Generally in this connection the rule is: \\\"One permitted to maintain and conduct a pharmacy may be disciplined by the pharmacy board for the unlawful acts of his employees while engaged in the conduct and operation of the pharmacy, although the permittee does not authorize the unlawful acts and did not have actual knowledge of the activities.\\\" (Arenstein v. California State Bd. of Pharmacy (1968) 265 Cal.App.2d 179, 192-193 [71 Cal.Rptr. 357].)\\nSuch a situation is not involved in the case of Smith, who is merely an employee, albeit the pharmacist-in-charge, of the owner, Roth. Under provisions such as section 4054, a pharmacist-in-charge may have responsibilities similar to those of an owner for the unknown acts of the owner's employees. However, where such a refined statutory theory of responsibility is sought to be imposed on the pharmacist-in-charge, as distinguished from a theory of responsibility for personal commission of the acts charged, fundamental fairness requires notice of the statutory theory in the accusation.\\nIn other words, where liability is sought for the acts of others on the basis of the accused's position as pharmacist-in-charge, we hold due process requires the accusation to \\\"set forth in ordinary and concise language the acts or omissions with which the respondent is charged, to the end that the respondent will be able to prepare his defense [and to] specify the statutes and rules which the respondent is alleged to have violated . . . .\\\" (Gov. Code, \\u00a7 11503.) As we have seen, the accusation in this case fails to comport with this standard.\\nMoreover, it is clear that without adequate notice of the charge seeking to fix his responsibility for the acts of others on the basis of his capacity as pharmacist-in-charge, Smith was left unprepared to contest this theory. As we have seen, Smith argued (and continues to claim) he was prejudiced by his inability to present expert testimony on the appropriate standard of care after having presented testimony he did take some corrective action upon suspecting Roth was engaged in illegality with Stoner. In response, the Attorney General relies on Banks v. Board of Pharmacy (1984) 161 Cal.App.3d 708, 713 [207 Cal.Rptr. 835], which upheld discipline imposed against a pharmacist-owner because of negligent failure to maintain security based upon a finding the pharmacy's records were inaccurate. The Banks case is inapposite.\\nIn Banks, an audit of certain controlled substances showed the inventory on hand did not match the records for any of the four drugs surveyed. During the audit period there had been a burglary. However, no inventory was taken to determine if dangerous drugs were taken and, in violation of the California Administrative Code (now the California Code of Regulations), no report was given to the Board concerning any drug loss attributable to the burglary. In addition, it was determined several employees had been stealing the drugs in question. (Banks v. Board of Pharmacy, supra, 161 Cal.App.3d at p. 711.)\\nBanks did not decide an issue concerning the adequacy of the accusation. Nevertheless, in the context of Banks's argument there was insufficient evidence to support the Board's judgment because there was no evidence to establish duty, i.e., the standard in the community regarding maintaining security and inventory control over the subject controlled substances, the court responded: \\\"A community custom is merely evidence of the standard of care [citation]; the concept has no application to this case. At bench a duty arises from the laws which appellant was found to have violated.\\\" (Banks v. Board of Pharmacy, supra, 161 Cal.App.3d at p. 713.) Under this rule, Banks found there was substantial evidence of the pharmacist-owner's negligent failure of security in the form of (a) the outside theft, and (b) the repeated thefts by employees. (Ibid.) The court further explained: \\\"The former should have been reported to the Board. Appellant seeks to avoid responsibility for the latter. He may not. \\\" 'The licensee, if he elects to operate his business through employees must be responsible to the licensing authority for their conduct in the exercise of his license . . . .'By virtue of the ownership of a . . . license such owner has a responsibility to see to it that the license is not used in violation of the law.\\\" [Citations.]' [Citation.]\\\" (Id. at p. 713.)\\nThus, the holding in Banks rested on the responsibility of a pharmacy owner for both the acts of the owner's employees and the omissions of the owner himself in failing to maintain complete and accurate records of dangerous drugs and negligently failing to insure adequate security and inventory control of those drugs. Most important, in Banks there was no issue concerning the adequacy of the accusation charging the owner under these theories. Thus, Banks is to be distinguished from the present case. Here, as we have seen, the accusation charges Smith as pharmacist-in-charge in terms that reasonably can only be viewed as alleging that Smith, in the words of the Attorney General, \\\"personally\\\" and \\\"volitionally\\\" dispensed the drugs in question to the extent asserted.\\nThe present case is somewhat akin to McFaddin San Diego 1130, Inc. v. Stroh (1989) 208 Cal.App.3d 1384, 1387, footnote 2 [257 Cal.Rptr. 8], in which we held an accusation stating that the licensee \\\"permitted or suffered\\\" its premises to be used for drug transactions led the licensee to believe its liability was premised on it having \\\"permitted\\\" the drug transactions. The licensee's defense was conducted accordingly. (Ibid.) The evidence showed four patrons sold or furnished cocaine to undercover agents on six occasions under circumstances where the licensee's employees were not aware of any of the transactions. We concluded this evidence did not support the charge the licensee \\\"permitted or suffered\\\" the transactions and thus reversed the discipline imposed.\\nSimilar to this case, the ALJ's findings in McFaddin expressly eliminated the knowing sales charge. Here, the referee found the \\\"excessive furnishing of drugs was not a result of Smith's intentional course of action but resulted from his extreme neglect of his professional duties.\\\" Inasmuch as Smith was charged with personal, volitional dispensing of the drugs, not negligence connected with others who dispensed the drugs, it is appropriate to conclude as in McFaddin the matter must be reversed. (See also Wheeler v. State Bd. of Forestry, supra, 144 Cal.App.3d at pp. 526-527, and fhs. 2 and 3 [finding of \\\"gross incompetence,\\\" never charged in the accusation, was reversed after the licensee was charged with and expressly found not to have committed \\\"deceit, misrepresentation, or fraud in his practice\\\"].)\\nFor the failure to accord Smith adequate due process notice of the charge against him as pharmacist-in-charge, we must reverse the finding Smith's license was subject to discipline for clearly excessive furnishing of controlled substances.\\nII\\nIn light of the reversal of the excessive furnishing of controlled substances charge, it is not strictly necessary to consider Smith's remaining arguments. However, for guidance we express our view on Smith's contention he could not be found to be within the clearly excessive furnishing of controlled substances provision of section 4350.5, subdivision (e), which makes reference to Health and Safety Code section 11153, subdivision (a). (See fn. 6, ante, p. 238.) In the context of the findings made in his case, Smith claims that such a finding is improper unless it is determined that he was, in the language of the Health and Safety Code provision, \\\"the pharmacist who fills the prescription,\\\" upon whom rests the responsibility for proper dispensing of controlled substances. (Italics added.) Smith argues that this provision does not apply to a set of facts leading to a finding the pharmacist simply \\\"failed to apprise himself of the other's improper dispensing.\\\"\\nWhile we have no quarrel with Smith's interpretation of the Health and Safety Code provision incorporated into section 4350.5, subdivision (e), we observe in this case the ALJ found that \\\"for each of the prescriptions issued in 1988, Smith was the dispensing pharmacist.\\\" This finding, which encompasses the controlled substances prescriptions filled for Stoner, fits within the Health and Safety Code language referring to \\\"the pharmacist who fills the prescription.\\\" (See \\u00a7 4049, defining \\\"dispense\\\" as \\\"the furnishing of drugs or devices upon a prescription from a physician, dentist, podiatrist or veterinarian.\\\") If the evidence supports a similar finding after a rehearing of the excessive furnishing charge, the elements of section 4350.5, subdivision (b), and Health and Safety Code section 11153, subdivision (a), would be fulfilled.\\nHI\\nBecause of its general importance, we also address Smith's argument that because subdivision (d) of section 4350.5 specifies \\\"[g]ross negligence\\\" is a form of unprofessional conduct, then the Legislature could not have contemplated ordinary negligence as an act which would subject a pharmacist to discipline. The gross negligence designation is simply one of several items that are specified as included for purposes of determining what is unprofessional conduct. The list of items expressly \\\"is not limited to\\\" those specified.\\nInsofar as clearly excessive furnishing of controlled substances is concerned (\\u00a7 4350.5, subd. (e)), there is no basis in the statutory language for concluding ordinary negligence could not be the foundation for a determination of unprofessional conduct under this specific provision. (Cf. Vermont & 110th Medical Arts Pharmacy v. Board of Pharmacy (1981) 125 Cal.App.3d 19,24-26 [177 Cal.Rptr. 807], where, however, gross negligence was charged under facts showing rather extreme mockery of the law in terms of the obviously bogus nature of the dangerous drug prescriptions filled.) Moreover, as we have seen, Banks v. Board of Pharmacy, supra, 161 Cal.App.3d at page 713, involving inaccurate records because of negligent failure to maintain security, squarely upholds a finding of conduct warranting disciplinary action that is based on ordinary negligence.\\nFinally, we point out that section 4054's imposition of responsibility on the pharmacist-in-charge for the pharmacy's compliance with laws and regulations, both state and federal, pertaining to the practice of pharmacy, contains no exclusion for negligent conduct. We conclude that under appropriate charges a licensee properly may be disciplined on the basis of ordinary negligence.\\nIV\\nIn light of our holding that principles of due process require overturning the Board's finding Smith's license is subject to discipline for unprofessional conduct based on clearly excessive furnishing of controlled substances under section 4350.5, subdivision (e), we do not address Smith's remaining issue attacking the penalty of license revocation as excessive. Smith's penalty requires redetermination at the conclusion of further proceedings. Such a redetermination, of course, will also take into account the unchallenged findings Smith's license is subject to discipline for unprofessional conduct (a) pursuant to section 4350.5, subdivision (c), for deceit and dishonesty in removing and keeping pharmacy records, and (b) pursuant to section 4350.5, for violation of sections 4232 and 4331, failure to preserve prescriptions filled for three years.\\nDisposition\\nThe judgment is reversed and the superior court is directed to issue a writ of mandate compelling the Board to vacate its decision and conduct further proceedings consistent with the views expressed in this opinion.\\nWork, Acting P. J., and Froehlich, J., concurred.\\nAll statutory references are to the Business and Professions Code unless otherwise specified.\\nIn an apparent typographical error, the ALJ's written determination adopted by the Board cites section 4350.5, subdivision \\\"(c),\\\" which pertains to acts \\\"involving moral turpitude, dishonesty, fraud, deceit, or corruption.\\\" Subdivision (e) of the section pertains to \\\"clearly excessive furnishing of controlled substances,\\\" corresponding to the language of the written determination by the ALJ.\\nThe ALJ earlier found the \\\"excessive furnishing of drugs was not a result of Smith's intentional course of action but resulted from his extreme neglect of his professional duties. This negligence does not equate to moral turpitude.\\\" (Italics added.) Accordingly, we conclude the reference to subdivision (c) was a typographical error meant to refer to subdivision (e).\\nThere is no paragraph 5d or 5f. From the context it appears these references were to the specified subdivisions in paragraph 7 of the accusation.\\nThere is no paragraph 5c or 5g in the accusation. Again, from the context, it appears these references are to the specified subdivisions in paragraph 7.\\nThe single alleged violation not including a general citation to section 4350.5 pertained to Smith's admitted removal of the prescription records from Parkway, a matter not involving negligent conduct and clearly outside the scope of his argument about the absence of notice of charges of negligence. This violation was charged as unprofessional conduct \\\"subject to [discipline] pursuant to section 4350.5(c),\\\" which speaks of acts \\\"involving moral turpitude, dishonesty, fraud, deceit, or corruption.\\\"\\nSection 4350.5 provides in pertinent part:\\n\\\"The board shall take action against any holder of a certificate, license, permit, registration or exemption, who is guilty of unprofessional conduct which has been brought to its attention . Unprofessional conduct shall also include, but is not limited to, the following:\\nit\\n\\\"(e) The clearly excessive furnishing of controlled substances in violation of subdivision (a) of Section 11153 or subdivision (a) of Section 11153.5 of the Health and Safety Code. Factors to be considered in determining whether the furnishing of controlled substances is clearly excessive for purposes of subdivision (a) of Section 11153.5 of the Health and Safety Code shall include, but not be limited to, the amount of controlled substances furnished, the previous ordering pattern of the customer (including size and frequency of orders), the type and size of the customer, and where and to whom the customer distributes its product.\\\"\\nHealth and Safety Code section 11153, subdivision (a) reads in part, \\\"The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription.\\\" (Italics added.)\\nHealth and Safety Code section 11153.5 applies only to wholesalers, manufacturers and their respective agents or employees, and thus has no application to this case. (See Health & Saf. Code, \\u00a7 11017, 11031; Bus. & Prof. Code, \\u00a7 4034, 4038.)\\nSmith's sister had been working as a clerk at Parkway since February 1988. She was instructed by the other two clerks that Stoner had a \\\"special account\\\" and only they were authorized by Roth to give Stoner the will-call bag containing his order. In about August 1988, Smith's sister told him about the special will call bags for Stoner that she was not allowed to handle.\\nAs noted in footnote 2, ante, the ALJ and Board found no clear and convincing evidence that Smith's involvement in the excessive furnishing of drugs to Stoner amounted to moral turpitude.\\nThe active voice use of \\\"Smith dispensed\\\" and \\\"Smith furnished\\\" is a use of words parallel to the clearly intended active voice use of \\\"Smith removed\\\" with reference to the allegation of his having taken records from the pharmacy.\\nIn closing argument before the ALJ, counsel for the Board stated, in part, \\\"The accusation could have been more artfully drafted to allege the alternative theory of negligence, but I argue that the statutory duty to comply with the laws in 4350.5(c)\\u2014or excuse me. 4350.5\\u2014 a statutory duty of 4054 of the B and P Code, indicating that a pharmacy must have a pharmacist in charge who shall be responsible for compliance with the laws, is the statutory duty that gives rise to the idea that failure to be careful and to fulfill that duty can be the basis for negligent conduct.\\\"\\nSection 4054 is described in the accusation's series of statutory descriptions. (See p. 233, ante.) The second clause of the section 4054 description is it provides \\\"that every pharmacy shall have a pharmacist-in-charge who shall be responsible for the pharmacy's compliance with laws and regulations, both state and federal, pertaining to the practice of pharmacy . . . .\\\" (\\u00a7 4054, subd. (b).)\\nThe discipline was sought under California constitutional and statutory provisions permitting such action when continuance of the license \\\"would be contrary to public welfare or morals\\\" (Cal. Const., art. XX, \\u00a7 22; Bus. & Prof. Code, \\u00a7 24200, subd. (a)) as well as under a section requiring revocation for a licensee's \\\"knowingly\\\" permitting illegal drug sales on licensed premises (\\u00a7 24200, subd. (a)). (McFaddin San Diego 1130, Inc. v. Stroh, supra, 208 Cal.App.3d at pp. 1388, 1389, fns. 5, 6.)\"}"
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+"{\"id\": \"54888\", \"name\": \"SOLE ENERGY COMPANY et al., Plaintiffs and Respondents, v. MORRIS V. HODGES et al., Defendants and Appellants\", \"name_abbreviation\": \"Sole Energy Co. v. Hodges\", \"decision_date\": \"2005-04-05\", \"docket_number\": \"No. G031282\", \"first_page\": \"199\", \"last_page\": \"211\", \"citations\": \"128 Cal. App. 4th 199\", \"volume\": \"128\", \"reporter\": \"California Appellate Reports, Fourth Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T19:02:39.767198+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SOLE ENERGY COMPANY et al., Plaintiffs and Respondents, v. MORRIS V. HODGES et al., Defendants and Appellants.\", \"head_matter\": \"[No. G031282.\\nFourth Dist., Div. Three.\\nApr. 5, 2005.]\\nSOLE ENERGY COMPANY et al., Plaintiffs and Respondents, v. MORRIS V. HODGES et al., Defendants and Appellants.\\nCounsel\\nBrady, Vorwerck & Ryder, Ravi Sudan and James Brady for Defendants and Appellants Morris V. Hodges, Hillcrest Beverly Oil Corporation and Kaymor Petroleum Products.\\nLaw Offices of Norman Rasmussen, Norman Rasmussen; Blumberg Law Corporation and Ave Buchwald for Defendant and Appellant Nevadacor Energy, Inc.\\nHornberger & Brewer, Nicholas W. Hornberger and James E Lindsay for Plaintiffs and Respondents.\", \"word_count\": \"3956\", \"char_count\": \"24808\", \"text\": \"Opinion\\nFYBEL, J.\\nIntroduction\\nThe trial court entered the defaults of four defendants as a sanction for their discovery abuses. Default judgment was entered against them in an amount exceeding $27 million, and the defendants appealed.\\nWe reverse the judgment because the defendants did not receive notice their defaults might be entered as a discovery sanction and were not provided an opportunity to be heard on the matter. The defendants were denied due process because sanctions for the abuse or misuse of discovery may not be awarded ex parte. (Code Civ. Proc., \\u00a7 2023, subd. (b).) The notice of motion for the discovery sanctions was also deficient. (Id., \\u00a7 2023, subd. (c).) Thus, the orders entering the defendants' defaults and the subsequent default judgment are void.\\nFacts and Procedural History\\nI. The Original Complaint\\nOn May 25, 2000, Sole Energy Company, a Texas corporation (Sole Energy Corporation), filed a verified complaint asserting causes of action for intentional interference with contractual relations, intentional interference with prospective economic advantage, fraud, and breach of contract. The named defendants were Petrominerals Corporation (Petrominerals), Morris V. Hodges, Daniel H. Silverman, Nevadacor Energy, Inc. (Nevadacor), Kaymor Petroleum Products (Kaymor), and Hillcrest Beverly Oil Corporation (HBOC). For this appeal, Hodges, HBOC, Kaymor, and Nevadacor are referred to collectively as defendants.\\nThe complaint was based on a letter of intent dated December 16, 1999, from Sole Energy Company, LLC, to Nevadacor. (Sole Energy Company, LLC, was a precursor to Sole Energy Corporation, and was never formed as a limited liability company.) The letter of intent proposed an entity identified as Sole Energy Company purchase from Nevadacor the stock and oil- and gas-related assets of HBOC.\\nDefendants answered and eventually filed a motion for summary judgment. They argued in their motion that Sole Energy Corporation, which was formed on December 30, 1999, could not assert any claims arising out of the December 16 letter of intent. The trial court granted the motion for summary judgment. The order granting summary judgment and the judgment were entered on September 19, 2001.\\nOn the same day, Sole Energy Corporation filed a motion for reconsideration. On September 20, 2001, Sole Energy Corporation filed a motion for leave to file an amended complaint, which would name four new proposed plaintiffs; Sole Energy Company, a partnership (Sole Energy Partnership); Thomas A. Swaney; Richard F. Borghese; and Harwood Capital Corporation (collectively referred to as plaintiffs). The trial court deemed the motion for reconsideration to be a motion for a new trial, granted it, and granted the motion for leave to amend. Defendants, along with Petrominerals and Silver-man, appealed from the order granting a new trial and the order granting leave to amend. (That appeal is the subject of the opinion in the companion case, Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187 [26 Cal.Rptr.3d 790] (Sole Energy I).)\\nII. The First Amended Complaint\\nPlaintiffs' first amended complaint was filed on December 6, 2001. Petrominerals and Silverman moved for a stay of proceedings in light of the pending appeal. Hodges, HBOC, and Kaymor joined in the motion. On March 8, 2002, the trial court (1) stayed further proceedings involving Sole Energy Corporation only; (2) ruled the first amended complaint could proceed as to the newly added plaintiffs; (3) ordered defendants to answer the first amended complaint by April 2, 2002; and (4) set a trial date of July 22, 2002.\\nNevadacor answered the first amended complaint. Hodges, HBOC, and Kaymor did not answer. (Petrominerals and Silverman also answered the first amended complaint, but are not parties to this appeal.)\\nIII. HBOC and Kaymor Discovery Dispute\\nOn May 10, 2002, plaintiffs noticed the depositions of HBOC and Kaymor through their persons most knowledgeable. HBOC and Kaymor failed to appear at the depositions. On May 28, plaintiffs applied ex parte for orders shortening time for a hearing on motions to compel HBOC's and Kaymor's depositions. The motions sought orders compelling attendance and production of documents at the depositions. Each motion sought sanctions of $2,921 against HBOC, Kaymor, and their counsel.\\nHBOC and Kaymor failed to appear at the ex parte hearing. The trial court granted the orders shortening time for a hearing on the motions.\\nOn June 7, 2002, the trial court (1) granted the motions to compel HBOC's and Kaymor's depositions; (2) ordered HBOC and Kaymor to appear for their depositions on June 14, 2002; (3) ordered HBOC and Kaymor to produce the documents requested without objection; and (4) imposed $750 in sanctions against HBOC and Kaymor, but not against their counsel. The written orders state; \\\"Failure to appear & produce will result in sanctions.\\\"\\nDespite the trial court's orders, HBOC and Kaymor again failed to appear for their depositions on the ordered date. On June 18, 2002, plaintiffs again applied ex parte for orders shortening time for a hearing on motions to compel HBOC and Kaymor to attend their depositions and produce documents, and for sanctions. In the application relating to HBOC, plaintiffs asked the court to shorten the time and order the motion for sanctions to be heard \\\"immediately.\\\" In the application relating to Kaymor, plaintiffs asked the court to hear the motion within 10 days of the ex parte application.\\nThe court granted the applications, shortened the time, and conducted the hearing on plaintiffs' request for sanctions. As a sanction, the court ordered stricken the answers of Hodges, HBOC, and Kaymor, and ordered the entry of their defaults.\\nThe declarations submitted in connection with the ex parte applications stated: \\\"I gave notice to opposing counsel as [set] forth hereinbelow that attorneys for Plaintiffs would be appearing on June 18, 2002, at 8:30 a.m. in the Orange County Superior Court, in Department C-13, making Ex Parte Application for an Order Shortening Time for Motions for sanctions against Defendants Hillcrest Beverly Oil Corporation and Kaymor Petroleum Products and Blumberg Law Corporation; and for Monetary Sanctions in the Sum of $890.00 against Defendant Hillcrest Beverly Oil Corporation and Blumberg Law Corporation, its Counsel of Record, for Failure to obey a Court order compelling attendance and production of documents at deposition.\\\" On June 18, 2002 (the day the court entered ex parte the defaults of Hodges, HBOC, and Kaymor), plaintiffs served defendants' counsel by mail with the motions to compel and for sanctions against HBOC and Kaymor. In the motions, plaintiffs stated they were seeking monetary sanctions and, in the memorandum of points and authorities, advised the court it could also consider issue preclusion or terminating sanctions.\\nA written order striking the answers of Hodges, HBOC, and Kaymor and entering their defaults was entered on June 28, 2002. Hodges, HBOC, and Kaymor had not answered the first amended complaint, so the portion of the order striking their answers was moot.\\nA default prove-up hearing was held July 17, 2002. On July 25, the trial court entered default judgments against Hodges, HBOC, and Kaymor.\\nIV. Nevadacor Discovery Dispute\\nOn May 10, 2002, Swaney served a request for production of documents on Nevadacor. Nevadacor failed to produce the documents, which were due June 10, 2002.\\nOn July 2, 2002, plaintiffs filed two ex parte applications: (1) an application for an order shortening time for a hearing on a motion to compel Nevadacor to produce documents and \\\"for Sanctions\\\"; and (2) an application for an order extending the time for a hearing on a motion to compel Nevadacor to produce documents and \\\"for Sanctions.\\\" Neither application identified the specific sanction sought.\\nThe trial court granted neither application. Instead, on July 3, 2002, the court entered the following order: \\\"Defendant NEVADACOR ENERGY, INC. through its counsel, Norman Rasmussen, is ordered to personally appear at 8:30 a.m. on JULY 16, 2002 in Dept. C-13 of the Orange County Superior Court and to bring with him the following documents.\\\" The documents ordered to be brought to court were those showing HBOC's and Kaymor's net operating incomes. The record does not contain a motion to compel or any documents requesting or justifying any particular sanction against Nevadacor.\\nNevadacor's attorney did not appear at the hearing on July 17, 2002. The trial court ordered Nevadacor's answer stricken. A formal order was entered July 25, 2002, striking Nevadacor's answer and directing the clerk of the court to enter Nevadacor's default nunc pro tunc to July 25.\\nV. The Postdefault Motions and Judgment\\nHodges, HBOC, and Kaymor moved to modify the default judgments and to vacate the orders of June 7, 19 and 28, 2002. They argued that because the first amended complaint did not specify the amount of damages sought, the court could not award any damages against them, and therefore requested that the judgment be modified to award zero damages, or at most $100,000 because the first amended complaint alleged in the cause of action for fraud, \\\"Plaintiffs . . . expended hundreds of thousands of dollars\\\" conducting due diligence.\\nPlaintiffs moved to set aside the defaults and the default judgments, incorrectly believing a statement of damages was necessary to support them. On September 19, 2002, the trial court denied the motion to modify and vacate, but granted plaintiffs' motion to set aside the defaults and default judgments. On September 27, Hodges, HBOC, and Kaymor filed a notice of appeal from the September 19 order.\\nAlso on September 27, 2002, plaintiffs served statements of damages on defendants. On November 18, the defaults of defendants were entered again. Plaintiffs immediately filed a brief in support of court judgment after default by affidavits. On January 3, 2003, the court entered a default judgment against defendants. The default judgment awarded damages of $27,015,416.29.\\nDefendants filed motions for a new trial, to vacate and set aside defaults and default judgment, and for relief under Code of Civil Procedure section 473, subdivisions (b) and (d). The court denied each of these motions.\\nPlaintiffs filed a memorandum of costs, and defendants filed a motion to tax costs. The court denied the motion to tax costs.\\nDefendants timely appealed from the default judgment, the order denying the motions for a new trial, the order denying the motion to vacate and set aside the default and the default judgment, and the order denying the motion to tax costs. Plaintiffs filed a motion to dismiss the appeal from the September 19, 2002 order (appeal No. G031282) on a variety of grounds. One ground was the later appeals from the default judgment (appeal Nos. G032002 and G032102) subsumed the issues raised by appeal No. G031282. We agree, and for that limited reason dismiss appeal No. G031282.\\nDiscussion\\nI. The Defaults Are Void.\\nA trial court may impose sanctions, including terminating sanctions, for a party's misuse of the discovery process, which includes disobedience of a court order. (Code Civ. Proc., \\u00a7 2023, subds. (a)(7) & (b)(4).) As we discuss below, the sanction orders in this case violated due process and the requirements of Code of Civil Procedure section 2023. The trial court therefore abused its discretion in making the orders.\\nA basic rale of law and motion practice is the notice of motion \\\"shall state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.\\\" (Cal. Rules of Court, rule 311(a).) Notice of any motion must generally be provided 21 days before the date of the hearing. (Code Civ. Proc., \\u00a7 1005, subd. (b).) Although that time may be shortened for good cause {ibid.), \\\"[applications for orders may not be ex parte if a statute or rule requires notice\\\" {O'Brien v. Cseh (1983) 148 Cal.App.3d 957, 961 [196 Cal.Rptr. 409]). When relief is sought by an ex parte application, the affected party must be given notice of the relief being sought, unless the applicant can show good cause for failing to do so. (Cal. Rules of Court, rule 379(e)(1) & (2).)\\nThe statute authorizing sanctions for abuse or misuse of discovery requires notice: \\\"To the extent authorized by the section governing any particular discovery method or any other provision of this article, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process.\\\" (Code Civ. Proc., \\u00a7 2023, subd. (b), italics added.) The statute also provides specific guidelines as to what the notice of motion must contain: \\\"A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.\\\" (Id, \\u00a7 2023, subd. (c).)\\nDiscovery sanctions may not be ordered ex parte, and an order purporting to do so is void. In Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 6 [207 Cal.Rptr. 233], the appellate court concluded the portion of a discovery order conditionally authorizing a party to apply ex parte for monetary sanctions and conditionally ordering the award of those sanctions violated the notice requirements of the discovery statute and due process.\\nIn O'Brien v. Cseh, supra, 148 Cal.App.3d 957, the appellate court reversed an order awarding sanctions under Code of Civil Procedure section 128.5 because the order had been issued based on an ex parte application. \\\"Adequate notice prior to imposition of sanctions is mandated not only by statute, but also by the due process clauses of both the state and federal Constitutions. [Citations.]\\\" (O'Brien v. Cseh, supra, at p. 961.) \\\"Plaintiff's rush to compel sanctions against defendant on an ex parte basis was a flagrant violation of due process principles. The California Supreme Court has ruled that due process requires fair warning and an opportunity to respond before penalties can be imposed for prosecution of a frivolous appeal. [Citation.] . . . [Citation.] Ex parte imposition of sanctions by a superior court, as in the case at bench, is equally offensive.\\\" (Id. at p. 962.)\\nIn this case, HBOC and Kaymor did not receive any notice, much less adequate notice, that the trial court might impose a terminating sanction as a result of their discovery abuses. The only notice given HBOC and Kaymor was for an order shortening time on a motion to compel attendance and for monetary and other unspecified sanctions. Yet the court entered their defaults as a sanction. The procedures employed by plaintiffs and the court did not come close to comporting with due process, and did not comply with the requirements of Code of Civil Procedure section 2023, subdivision (c).\\nThe insertion of the warning, \\\"[f]ailure to appear & produce will result in sanctions\\\" in the orders granting the motions to compel is ineffective to provide the necessary notice for imposing a discovery sanction. In Duggan v. Moss (1979) 98 Cal.App.3d 735, 737-738 [159 Cal.Rptr. 425], the trial court granted a motion to compel the plaintiff to answer interrogatories and awarded monetary sanctions. The order stated that if the plaintiff failed to answer the interrogatories or pay the sanctions by July 10, 1977, the action would be dismissed. (Id. at p. 738.) The defendant moved ex parte for a judgment of dismissal, and supported the application with a declaration of the defendant's counsel stating neither responses to the interrogatories nor the monetary sanctions had been received. (Ibid.) As a sanction, the trial court struck the plaintiff's complaint and dismissed the action for the willful failure to comply with the court's discovery orders. (Ibid.)\\nThe appellate court held the conditional dismissal sanction was in excess of the trial court's jurisdiction and was therefore void: \\\"The June 30, 1977, order was authorized by the statute insofar as it compelled appellant to file answers by July 10, 1977, and to pay attorney's fees as sanctions. However, insofar as the trial court authorized at that time the sanction of dismissal upon the occurrence of certain events, the order exceeded the trial court's jurisdiction. Appellant had not, as of June 30, 1977, refused to obey the trial court's order compelling the filing of answers. The trial court was not authorized to impose further sanctions, even though the sanctions were conditional in form.\\\" (Duggan v. Moss, supra, 98 Cal.App.3d at p. 741.)\\nDefaulting Hodges as a sanction was even more egregious because he was not named in any motion to compel or in any discovery order. The court's June 7, 2002, order requiring HBOC and Kaymor to attend their depositions did not name Hodges. The ex parte application for an order shortening time on the motion to compel and for sanctions was not directed to Hodges. Plaintiffs' only attempt to justify the court's entry of Hodges's default is the assertion Hodges was the person most knowledgeable for HBOC and Kaymor. Whether HBOC and Kaymor would have offered Hodges as a person most knowledgeable at their depositions is irrelevant: The court was requested to award sanctions only against HBOC and Kaymor. Since no discovery order was directed to Hodges, he could not have violated a discovery order. Accordingly, the court had no authority to sanction Hodges for such a violation.\\nWith respect to Nevadacor, the ex parte applications mentioned that plaintiffs were seeking relief to file a motion to compel and \\\"for Sanctions.\\\" The trial court's July 3, 2002 order requiring Nevadacor to appear through its counsel with documents in hand did not refer to sanctions of any type. No motion to compel, whether or not requesting sanctions, was ever filed. Nevadacor had no notice that sanctions of any kind might be imposed for its discovery abuses.\\nThe order entering the default of Hodges, HBOC, and Kaymor, and the order striking the answer of Nevadacor and entering its default, violated due process and failed to provide notice of the sanctions sought; the orders are therefore void.\\nII. The Default Judgment Is Void.\\nHaving concluded the orders entering the defaults of defendants are void, we must conclude the default judgment against defendants is also void. \\\" 1 \\\"A void judgment [or order] is, in legal effect, no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one.\\\" [Citation.]' [Citation.]\\\" (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1240 [79 Cal.Rptr.2d 719].)\\nWhen a discovery order contains an invalid provision of a conditional future sanction, any order imposing that sanction is also invalid. \\\"From the above, we conclude that insofar as the June 30, 1977, order purported to provide for dismissal in the event of disobedience thereto, it exceeded the trial court's jurisdiction. Since the basis for the July 18, 1977, order of dismissal was the occurrence of the conditions specified in the invalid portion of the June 30 order, the July 18, 1977, dismissal order was itself invalid.\\\" (Duggan v. Moss, supra, 98 Cal.App.3d at p. 743.)\\nHere, the trial court's entry of default judgments against defendants, its order setting aside the default judgments, and the later entry of defaults and default judgment after the statements of damages were served, all stem from the initial orders entering the defaults. Because those initial orders were fatally flawed as a result of being entered without providing defendants notice and an opportunity to be heard, the default judgment is void and must be reversed. We need not address the parties' arguments regarding the various postjudgment motions and the memorandum of costs, since the judgment was void.\\nWhere does this case stand on remand? Apparently for tactical reasons, Hodges, HBOC, and Kaymor intentionally chose not to answer the first amended complaint. The time for them to answer expired long ago. The parties may proceed in accordance with their legal rights with regard to any failure to answer. HBOC, Kaymor, and Nevadacor also failed to object or respond to discovery, and those failures, too, appear to be intentional. Plaintiffs may, if they choose, pursue sanctions as provided by Code of Civil Procedure section 2023, subdivisions (b) and (c).\\nDisposition\\nThe default judgment is reversed, and the matter is remanded to the trial court for further proceedings. Appellants to recover their costs on appeal. This court's previously issued stay order is dissolved.\\nSills, R J., and Aronson, J., concurred.\\nOn April 26, 2005, the opinion was modified to read as printed above.\\nEach notice of motion read, \\\"Plaintiffs . . . will move this Court for, sanctions against Defendant. . . and for Monetary Sanctions in the Sum of $890.00 against Defendant... for Failure to obey a Court order compelling attendance and production of documents at deposition, as well as an Order compelling deposition and production of documents.\\\" The memoranda of points and authorities attached to the motions include the following: \\\"While monetary sanctions are authorized for [defendant]'s actions, at this juncture, monetary sanctions alone will be insufficient to compensate Plaintiffs for the detriment occasioned by the act. [][] The Code of Civil Procedure Section 2023 authorizes additional, more severe sanctions for disobeying an order to provide discovery, including evidence sanctions and terminating sanctions, [f] Plaintiffs respectfully request that this Court seriously consider imposing these more severe sanctions against [defendant], and its right to do so is within its discretion.\\\"\\nOn November 26, 2003, plaintiffs requested we take judicial notice of a confirmation of service of the July 3, 2002, order by facsimile. On December 17, 2003, we ordered the request to be decided in conjunction with the appeal. We deny the request because the facsimile confirmation is not of substantial consequence to the determination of this appeal or the tenor thereof (Evid. Code, \\u00a7 459, subd. (d)), and does not appear to be the proper subject of judicial notice (id., \\u00a7 452).\\nNothing in the record on appeal explains why the July 3, 2002, order required counsel's appearance on July 16. The trial court nonetheless sanctioned Nevadacor for its counsel's failure to appear on July 17.\\nPlaintiffs' attempt to correct the first amended complaint's lack of any claim for damages through service of a statement of damages provides an alternate ground for reversal. Statements of damages are used only in personal injury and wrongful death cases, in which the plaintiff may not state the damages sought in the complaint. (Code Civ. Proc., \\u00a7 425.11.) In all other cases, when recovering damages in a default judgment, the plaintiff is limited to the damages specified in the complaint. (In re Marriage of Lippel (1990) 51 Cal.3d 1160,1167 [276 Cal.Rptr. 290, 801 P.2d 1041]; Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 864-865 [121 Cal.Rptr.2d 695].)\\nHere, plaintiffs' first amended complaint did not specify any amount of damages. If plaintiffs could remedy that failure through service of a statement of damages after entry of default, the statement of damages would serve as the functional equivalent of an amendment to the complaint, which would open the defaults. (Cole v. Roebling Construction Co. (1909) 156 Cal. 443, 446 [105 P. 255]; Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1743 [33 Cal.Rptr.2d 391].)\\nThe trial court awarded Harwood Capital Corporation $12,098,416.29 in compensatory damages and $5,000,000 in punitive damages; awarded Borghese $4,581,000 in compensatory damages and $5,000,000 in punitive damages; and awarded Swaney $336,000 in compensatory damages. All damages were awarded jointly and severally against defendants.\"}"
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+"{\"id\": \"5730305\", \"name\": \"THE PEOPLE, Plaintiff and Respondent, v. JOSE ALBERTO MIRALRIO, Defendant and Appellant\", \"name_abbreviation\": \"People v. Miralrio\", \"decision_date\": \"2008-10-08\", \"docket_number\": \"No. C056930\", \"first_page\": \"448\", \"last_page\": \"465\", \"citations\": \"167 Cal. App. 4th 448\", \"volume\": \"167\", \"reporter\": \"California Appellate Reports, Fourth Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T22:17:14.261222+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PEOPLE, Plaintiff and Respondent, v. JOSE ALBERTO MIRALRIO, Defendant and Appellant.\", \"head_matter\": \"[No. C056930.\\nThird Dist.\\nOct. 8, 2008.]\\nTHE PEOPLE, Plaintiff and Respondent, v. JOSE ALBERTO MIRALRIO, Defendant and Appellant.\\n[CERTIFIED FOR PARTIAL PUBLICATION ]\\nCounsel\\nMark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.\\nEdmund G. Brown, Jr., Attorney General, Dane R. Gillette and Michael P. Farrell, Assistant Attorneys General, Julie A. Hokans and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.\\nPursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts in., IV. and V. of the Discussion.\", \"word_count\": \"6421\", \"char_count\": \"38974\", \"text\": \"Opinion\\nSIMS, Acting P. J.\\nDefendant Jose Alberto Miralrio appeals following his conviction on six counts of sex offenses with minors (Pen. Code, \\u00a7 261, 269, 288) with enhanced sentencing due to multiple victims (\\u00a7 667.61, subd. (e)(5)) and one count of battery (\\u00a7 242). Defendant contends the trial court (1) improperly allowed the prosecution to amend the information during trial, (2) misadvised him of the sentencing consequences of going to trial, (3) improperly handled a request for new trial and new counsel, and (4) improperly imposed a fine (\\u00a7 243.4). Defendant also contends there is an inadequate appellate record regarding jury instructions, and the jurors' set of written instructions improperly included headings. In the published portion of the opinion, we shall reject defendant's first two contentions. In the unpublished portion, we strike the section 243.4 fine but otherwise affirm the judgment.\\nFACTUAL AND PROCEDURAL BACKGROUND\\nAn original information charged defendant with nine counts of sex offenses against three victims and contained at the end of the pleading an allegation of a section 667.61, subdivision (e)(5), enhancement for multiple victims, applicable \\\"as to Counts One through Nine.\\\"\\nA first amended information, filed just before trial, deleted one count, leaving eight counts, and moved the section 667.61 allegation to the first page of the pleading under count one, with no indication it applied to all counts.\\nAfter all evidence was adduced at trial and before closing arguments, the trial court allowed the prosecution to file a second amended information to correct the \\\"clerical error\\\" and reinstate the multiple victims allegation as to all counts.\\nThe second amended information charged defendant as follows:\\nCount one\\u2014Committing a lewd and lascivious act with the requisite intent on June 17 and 18, 2006, putting his hand on the buttocks of victim I., a child under the age of 14 years, in violation of section 288, subdivision (a).\\nCount two\\u2014Rape of victim B., a child under age 14 and more than 10 years younger than defendant, between November 7, 1997, and November 6, 1998 (\\u00a7\\u00a7 261, subd. (a)(2) [rape by means of force, violence, duress, menace, or fear of bodily injury], 269, subd. (a)(1) [aggravated sexual assault of child]).\\nCount three\\u2014Lewd and lascivious act (defendant put his fingers in B.'s vagina) by use of force, violence, duress, menace, and threat of great bodily harm, between November 7, 1997, and November 6, 1998 (\\u00a7 288, subd. (b)(1)).\\nCount four\\u2014Rape of B. between August 7, 1998, and November 6, 2000 (\\u00a7\\u00a7 261, subd. (a)(2), 269, subd. (a)(1)).\\nCount five\\u2014Lewd and lascivious act (finger in victim's vagina) on B., by use of force, etc., between November 7, 1998, and November 6, 2001 (\\u00a7 288, subd. (b)(1)).\\nCount six\\u2014Lewd and lascivious act (defendant's hand to victim's breast) on victim A., a child under the age of 14, between June 14, 2002, and June 13, 2003 (\\u00a7 288, subd. (a)).\\nCount seven\\u2014Lewd and lascivious act (defendant's finger to victim's vagina) on A. (\\u00a7 288, subd. (a)).\\nCount eight\\u2014Lewd and lascivious act (finger to vagina) on A., between June 14, 2002, and June 13, 2003 (\\u00a7 288, subd. (a)).\\nEvidence adduced at trial included the following:\\nDefendant was bom in 1976. All three victims are his half sisters who lived with defendant's father at the time.\\nEvidence Regarding I. (Count One)\\nI. testified (regarding an uncharged incident) that one summer night in 2005, when she was 12, she awoke during an overnight stay at defendant's house to find her pajama pants pulled down and defendant in the room. Defendant tried to hide. I. never stayed there again because she did not \\\"trust the house.\\\"\\nOne night around Father's Day in 2006, L, then age 13, was awakened when someone entered her room. I. opened her cell phone for light and recognized defendant. He told her to be quiet and grabbed her buttocks (count one).- She first testified she did not remember whether he rubbed her buttocks, then testified he did rub in circles. I. tried to leave. Defendant grabbed her shoulders from behind. She broke away and ran to A.'s room. After phoning B. at a friend's house, they told their father, who telephoned the police.\\nEvidence Regarding B. (Counts Two, Three, Four, and Five)\\nB. testified that, when she was around 11 years old, she awakened in her bedroom to find defendant (then age 21 or 22) touching her breasts with his hands. She told him to stop and tried to push him away. He told her to be quiet. He touched her vagina through her clothing, reached inside her underwear, and inserted his fingers into her vagina (count three). He took off her clothing. He inserted his penis in her vagina a couple of times (count two). He told her not to say anything and left.\\nWhen B. was 12, she was staying overnight at defendant's house, when defendant entered the room B. was sharing with defendant's daughter. He grabbed B.'s leg and tried to flip her onto her back. She pushed him off, but he grabbed her leg again, flipped her over, and pulled off her clothes. He told her to be quiet. He spit into his hand and rubbed the spit on his penis. She tried to hold her legs closed, but he forced them apart and inserted his penis in her vagina more than once (count four). He left when his daughter started to wake up. B. was too scared to tell anyone at the time (though she confided in a friend years later, months before the matter was reported to. law enforcement, after B. learned defendant touched A.).\\nAnother day, when B. was home alone, defendant entered the house and, over the victim's resistance, threw her on the bed, touched her vagina through her clothes, moved his hand underneath her clothes, and inserted his fingers in her vagina (count five).\\nB. testified she told her sister-in-law N. that she (B.) did not want to press charges because defendant is her brother, and she does not want her nieces to have to live without their father. B. denied saying she was pressing charges \\\"to prove a point\\\" to her father.\\nEvidence Regarding A. (Counts Six, Seven, and Eight)\\nA. testified that, one summer night when she was 11 years old, she was sleeping in the bedroom of defendant's daughter. Defendant came into the room and inserted his fingers in her vagina (count seven). At trial, A. said defendant did not do anything else. A. said she did not remember telling a sheriff's investigator that defendant first put his hands on her breasts and stomach (count six), or that defendant left the room and then came back and inserted his finger in her vagina a second time (count eight). If she did say that to an investigator, it was untrue.\\nA sheriff's investigator testified A. told him defendant put his hands on her breasts and stomach, put his fingers in her vagina, left the room, came back, and put his fingers in her vagina a second time.\\nTaped Interview of Defendant\\nA sheriff's investigator testified he conducted a videotaped interview with defendant on August 29, 2006, during which defendant admitted contact with private parts of the three victims, including sexual intercourse with B. (which he viewed as consensual). A DVD with excerpts of the videotaped interview, as well as a written transcript, were admitted into evidence.\\nThe Defense\\nDefendant did not testify but presented as witnesses his father (who is also the father of the victims), brother, and sister-in-law, all of whom questioned the victims' veracity. G., who is the father of defendant and the victims, testified he brought the girls (who live with him rather than their mother) to the sheriff's office to give statements at the direction of a detective. The girls were nervous. The father did not speak with them about the case \\\"because it makes them feel bad.\\\" The father testified he did not believe two of his daughters\\u2014B. and A. He thinks they exaggerated a lot of things out of anger. He testified that B. (who by then had turned 18 and no longer lived with her father) was \\\"angriest,\\\" and he did not know why. He admitted he went to the district attorney's office and asked for the charges to be dropped. The father asked that the investigators \\\"really be strong\\\" with his daughters \\\"to get the truth out.\\\" The father testified he loves all his children. The father tried to interject that B. was raped by other persons at age 16 and got pregnant, but the trial court sustained objections and instructed the jury to disregard the comment about pregnancy.\\nJ. testified he is full brother to the victims and half brother to defendant. J. testified A. and I. told him defendant never touched them. J. and his father went to the district attorney's office to try to get the charges dropped.\\nN. testified she is \\\"married in association by [J.]\\\" She is really close with the victims and has seen defendant (her brother-in-law) only three or four times. The previous September, B. was crying and, when pressed, said defendant had \\\"done things to her\\\" when she was seven or eight years old. B. said her father did not believe her, and she was at odds with him about it. N. inferred B. wanted to press charges to prove to her father that she could live her own life. N. said A. stated B. was telling her she had to speak about it. N. got the impression B. was putting pressure on A. According to N., A. said defendant's acts involved \\\"just touching,\\\" but she was being told things supposedly happened to her that she did not believe happened. A. did not want her brother to go to jail for \\\"stupid things\\\" and just wanted the whole thing to go away. N. said I. said defendant was drunk one night and fell onto the bed and touched her stomach but left when she got up and used her cell phone light to see who it was. N. said she, J., and the father went to try to get the charges dropped at the request of the victims. N. testified she told the detective B.'s \\\"stories kept changing . . . .\\\" N. testified B. spent a lot of time at defendant's house when B. turned 16 and started to drive and smoke marijuana. The trial court interjected, \\\"Okay. You know what? You know that's inappropriate, don't you?\\\" N. said no. The court said, \\\"Well, that was non-responsive. I strike that from the record.\\\" N. testified she told the detective that B. had been pressuring A. and I. into pressing charges, and \\\"that's from what the girls have told me.\\\" However, N. earlier testified \\\"[I.] never actually told me that she was being pressured . . . .\\\" N. insisted she is not taking sides.\\nThe jury found defendant not guilty on count eight (second alleged incident of finger to vagina regarding A.), guilty of a lesser offense of battery (\\u00a7 242) on count five (finger in vagina with force, regarding B.), and guilty on all other counts.\\nThe trial court sentenced defendant to prison for a total term of 90 years to life (six consecutive indeterminate terms of 15 years to life on counts one, two, three, four, six, and seven, pursuant to \\u00a7 667.61). On the count five battery, the court sentenced defendant to a concurrent misdemeanor jail term of six months.\\nDISCUSSION\\nI. Amendment\\nDefendant claims the trial court denied him due process and abused its discretion by allowing the prosecution to file a second amended information during trial to attach to each count the multiple victim allegation (\\u00a7 667.61, subd. (e)(5), also known as \\\"the one-strike\\\" law), whereas the first amended information charged the multiple victim allegation as to count one only. We find no grounds for reversal.\\nA. Background\\nWe set forth the background in detail because it gives rise not only to defendant's contention about leave to amend, but also his contention (which we discuss post) that he was misadvised about his potential sentence when he rejected the prosecution's plea offer.\\nAt the end of the original information appeared the allegation that \\\"as to Counts One through Nine, that [defendant] committed the above described offense(s) against two or more victims, within the meaning of Penal Code Section 667.61(e)(5).\\\" The parties appear to agree this subjected defendant to consecutive terms of 15 years to life on each count.\\nThe first amended information (which deleted one count) moved part of the quoted sentence to the beginning of the pleading, following count one, with no mention of application to all counts. On its face, this pleading subjected defendant to only one term of 15 years to life under section 667.61 (though defendant notes on appeal the two rape charges subjected him to two terms of 15 years to life under \\u00a7 269, subd. (b)).\\nThe record shows the following exchange when the case was called for trial:\\n\\\"THE COURT: All right. My understanding is, Ms. Steber [prosecutor], you're willing to advance the offer of 30 years to life today and up until jury selection would commence on Tuesday?\\n\\\"[Prosecutor]: That's correct, Your Honor.\\n\\\"THE COURT: And what is [defendant's] full exposure in this case?\\n\\\"[Prosecutor]: I believe he's looking at a total of 60 to life, plus another 3/6/[or]8, so another 8; 60 to life plus 8.[ ]\\n\\\"THE COURT: All right. And you're willing to keep that offer open until we commence with jury selection on Tuesday [July 24, 2007]?\\n\\\"[Prosecutor]: That's correct, Your Honor.\\\"\\nAt the close of proceedings on July 23, before jury selection, the following exchange occurred:\\n\\\"THE COURT: . . . Mr. Roth [defense counsel], I just want to confirm about you obviously you [sz'c] conveyed the offer to your client of 30 years to life.\\n\\\"[Defense counsel]: I did, Your Honor, and he's not inclined to accept that.\\n\\\"THE COURT: You're not going to accept that, Mr. Miralrio [defendant]?\\n\\\"THE DEFENDANT: No.\\\"\\nAfter the presentation of all evidence but before closing arguments, the defense objected to the proposed verdict form because it asked the jury to find the multiple victim allegation as to each count. The prosecutor asked the court for leave to file a second amended information to correct a \\\"clerical error\\\" which resulted in omission from the first amended information of an allegation in the original information that all counts were subject to enhanced sentences for multiple victims under section 667.61. The first amended information alleged section 667.61 as to count one only.\\nDefendant opposed the motion to amend.\\nDiscussion of the matter between court and counsel included reference to a plea offer, as follows:\\n\\\"[Prosecutor]: The People have proceeded throughout this trial with the understanding\\u2014and we've had multiple discussions about how this was a multiple life case, multiple terms of life. And that was understood from the very beginning of this case, [f] The People have alleged the multiple victim enhancement for three victims, and that's been the understanding through the case.\\n\\\"THE COURT: It's my recollection that when this case was assigned to this department, that the People made an offer to [defendant] on the record, and that offer contemplated the multiple victim enhancement because you indicated at the time, [prosecutor], that the Defendant was facing a maximum of how many years to life?\\n\\\"[Prosecutor]: I don't remember what I said, but we were talking about multiple life terms. Multiple, not one. And that was the understanding. And we've proceeded that way throughout this trial. Not one life term, multiple life terms. And that was the offer from the beginning was multiple life terms.\\n\\\"THE COURT: In fact, [defendant] declined the offer that was presented before jury selection commenced of 30 years to life.\\n\\\"[Prosecutor]: I do remember the Court asking the People if the People would offer one life count, and the People did not offer one life count. We offered multiple\\u2014our offer was two life counts, and that was a pretrial offer. And the understanding was there was multiple at the time nine life counts, now eight life counts.\\n\\\"[THE COURT:] If the intent [of] the People at the time [was] that it was sufficient he face one life term [an interpretation of the first amended information urged by defense counsel], I think that is dispelled by what the offer was pretrial or, well, pre-jury selection in this case.\\\"\\nDefense counsel argued defendant could have been subjected to multiple life terms even if the prosecution alleged only one section 667.61 enhancement. Defense counsel said that, \\\"to the best of my recollection,\\\" there were three possible life sentences. This apparently referred to the fact that the rape counts subjected him to two 15-year-to-life terms under section 269.\\nAfter an overnight recess, the trial court allowed the amendment, stating, \\\"it appears there was a clerical error attached to Count One, but that in any event defense has always been on notice with respect to that allegation. And the Court further reflected upon the discussions that were held prior to the selection of the jury, [f] The Court's of the belief that we all understood that that enhancement attached to each count as a multiple victim enhancement, not[]withstanding what I think was a very good argument put forward by [defense counsel] [.] [][]... [][] [I]n addition, I do not believe that [defense counsel], you would have defended your client any differently even if the Court were to agree that that allegation only attached to Count One. I think the defense would have been the same. [][] I think, from the perspective of this case, that has always been the count that was the least egregious as far as if the jury believed the statements and testimony of the named victims in this case, that count was always the less egregious . . . . [][] For all of those reasons, I'm going to permit the district attorney to amend her information, which will now be a second amended information, to reflect what I believe ultimately was a clerical error, but in any event does not substantially prejudice [defendant] in any regard.\\\"\\nAfter trial, at sentencing the prosecutor urged the court to adopt the probation officer's recommendation of a sentence of 90 years to life. Defense counsel acknowledged he had received a copy of the probation report and had had adequate opportunity to review it with defendant. The defense never expressed surprise at the 90-year figure, nor did it claim the earlier misadvisement caused defendant to reject the plea offer.\\nB. Analysis\\nSection 1009 provides a trial court may allow amendment of an information \\\"at any stage of the proceedings,\\\" and the trial shall continue unless the defendant's substantial rights would be prejudiced, in which event the court may grant a postponement. We review the trial court's decision for abuse of discretion. (People v. Bolden (1996) 44 Cal.App.4th 707, 716 [52 Cal.Rptr.2d 485].)\\nThe trial court allowed the second amendment based on the court's conclusions (1) there was clerical error in the first amendment, which omitted the original information's allegation that the multiple victim enhancement applied to each count; and (2) defendant would not be prejudiced because all parties always understood that the prosecution was seeking the section 667.61 enhancement on all counts and the defense would have been the same.\\nDefendant argues he was prejudiced as demonstrated by defense counsel's argument that he focused on count one because of its attached enhancement allegation. Defendant says there is not the slightest suggestion the judge did not believe defense counsel. However, this argument ignores the trial court's findings that \\\"we all understood that that enhancement attached to each count . . . ,\\\" and \\\"I do not believe that [defense counsel] . . . would have defended your client any differently .\\\"\\nDefendant argues there is no basis for the trial court's belief. However, there is a basis, in that the trial court had its own recollections.\\nAs noted by defendant, there is a basis upon which the trial court might have reached a different decision. Thus, when the prosecution's plea offer of 30 years to life was put on the record before jury selection, the court asked what was defendant's \\\"full exposure in this case,\\\" to which the prosecutor answered, \\\"I believe he's looking at a total of 60 to life . . . plus 8.\\\" This was a mistake, as both sides agree on appeal, but nevertheless was closer to the facial allegations of the first amended information (with only one \\u00a7 667.61 allegation) than to the original information. Additionally, defense counsel, in opposing the posttrial amendment, argued (somewhat inartfully) in the trial court that the pretrial offer of 30 years to life did not necessarily translate to two counts enhanced by section 667.61 because the first amended information charged defendant with one section 667.61 allegation plus two other \\\"life counts,\\\" by which defense counsel presumably meant (as more clearly expressed in his appellate brief) the two counts of aggravated sexual assault (rape) of a child, for which section 269, subdivision (b), would impose a sentence of 15 years to life.\\nThat there might be a basis for the trial court to reach a different conclusion does not render the court's decision an abuse of discretion. The trial court expressly considered and rejected defendant's argument that the first amended information was not clerical error but rather a deliberate decision by the prosecutor that this case was only worth one section 667.61 enhancement.\\nDefendant claims the trial court's reasoning conflicts with People v. Mancebo (2002) 27 Cal.4th 735 [117 Cal.Rptr.2d 550, 41 P.3d 556], which he cites for the proposition that a section 667.61 enhancement must be specifically alleged (as stated in \\u00a7 667.61, subd. (j) [\\\"penalties provided in this section shall apply only if the existence of any circumstance specified in subdivision (d) or (e) is alleged in the accusatory pleading pursuant to this section, and is either admitted by the defendant in open court or found to be true by the trier of fact\\\"]), and adequate awareness of the charges is necessary for defense counsel to advise his client effectively during plea bargaining. (Mancebo, supra, 27 Cal.4th at pp. 744-745 [where firearm use was pleaded as a basis for \\u00a7 667.61 enhancement, but multiple victims circumstance was not, trial court erred in substituting multiple victims circumstance as basis for \\u00a7 667.61 enhancement and using firearm as basis for enhancement under a different statute].) Defendant also cites our statement in People v. Smart (2006) 145 Cal.App.4th 1216 [52 Cal.Rptr.3d 456], that it is not too much to ask that a prosecutor clearly specify in the accusatory pleading a defendant's potential punishment under a statutory enhancement. (Id. at p. 1225.)\\nHowever, the enhancements were never alleged in Mancebo or Smart, neither of which involved an amendment which merely corrected a clerical error in a prior amendment to restore allegations of the original pleading. (Mancebo, supra, 27 Cal.4th at p. 740 [multiple victim enhancement was never alleged].)\\nWe conclude defendant fails to show grounds for reversal regarding amendment of the information.\\nII. Misadvisement Regarding Consequences of Going to Trial\\nDefendant contends reversal is required because, before he rejected the prosecutor's pretrial plea offer of 30 years to life, the trial court and the prosecutor misadvised him that his potential maximum sentence if he went to trial was 60 years to life (plus an eight-year enhancement), when in fact it was 120 years to life. We shall conclude the misadvisement does not require reversal because defendant has not shown it is reasonably probable he would have accepted the plea offer had he been advised correctly.\\nThe People do not dispute that the trial court and prosecutor misadvised defendant regarding his potential maximum sentence if he went to trial.\\nRelying on People v. Goodwillie (2007) 147 Cal.App.4th 695 [54 Cal.Rptr.3d 601] (Goodwillie), defendant contends the misadvisement constituted federal due process error compelling reversal because the People fail to show absence of prejudice beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824], The People respond the initial burden is on defendant to show he relied on the misinformation in rejecting the plea offer.\\nWe reject defendant's reliance on Goodwillie.\\nGoodwillie found a Fourteenth Amendment due process violation where an in propria persona defendant expressed on the record a willingness to plead guilty if he would receive full credit for good behavior. The defendant rejected the prosecution's plea offer because the trial court and the prosecution misadvised him that he could not receive full credit. (Goodwillie, supra, 147 Cal.App.4th at pp. 731-732.) After the defendant was convicted by a jury, the trial court realized the defendant was in fact eligible for full credit. (Id. at p. 732.) The appellate court vacated the judgment and remanded with directions to allow the district attorney to submit the previous offer to the court or set the case for retrial (with or without a resumption of plea negotiations). (Id. at p. 738.)\\nGoodwillie said, \\\"In cases involving plea bargains that the defendant has accepted, reversal is generally required only if the court fails to inform the defendant of information that makes the plea bargain less attractive than it appeared to be without the omitted information. [Citations.] Extending that concept to the reverse situation where, as here, a defendant rejects the plea bargain and is subsequently convicted, reversal may be required if the omitted information makes the bargain more favorable to the defendant than it appeared to be without the information.\\\" (Goodwillie, supra, 147 Cal.App.4th at p. 734, italics added & omitted.)\\nGoodwillie, supra, 147 Cal.App.4th at page 734, observed that In re Alvernaz (1992) 2 Cal.4th 924 [8 Cal.Rptr.2d 713, 830 P.2d 747] had held a criminal defendant is deprived of effective assistance of counsel if he or she rejects a plea bargain because of misadvice from defense counsel. Goodwillie observed the misinformation at issue was given by the court and prosecutor, not by defense counsel (since the defendant represented himself), but \\\"[b]y misinforming [the defendant] as to the consequences of the proffered plea bargain, the court and the prosecutor caused him to reject an offer that was more favorable to him than the result after trial, and one that he had indicated a willingness to accept.\\\" (Goodwillie, at p. 735.) Goodwillie distinguished the case before it, which involved affirmative misinformation by the court, from cases where the court simply failed to inform a defendant of a collateral consequence of a plea. (Id. at p. 735, fn. 27.)\\nGoodwillie said, \\\"[T]he court and the prosecutor, as officers of the court, have a duty not to misstate the law, whether intentionally or not. [Fn. omitted.]\\\" (Goodwillie, supra, 147 Cal.App.4th at pp. 734-735.) \\\"The trial court and the prosecutor's misunderstanding brought die plea bargaining process to a halt, and thus prevented Goodwillie from obtaining a plea offer more favorable to him than the sentence he received after trial. This violates notions of fundamental fairness assured by the due process clause of the Fourteenth Amendment. [Citation.]\\\" (Id. at p. 735.)\\nGoodwillie continued, \\\"Because we have concluded that the trial court's error violated Goodwillie's right to due process, the standard for assessing the prejudice to Goodwillie is that stated in Chapman v. California[, supra,] 386 U.S. 18, 24 . (See, e.g., People v. Scheller (2006) 136 Cal.App.4th 1143, 1152 [39 Cal.Rptr.3d 447] [error implicating due process requires 'federal \\\"beyond a reasonable doubt\\\" standard' of Chapman].) Chapman provides that federal constitutional error requires reversal unless the People can prove that the error was harmless beyond a reasonable doubt. [Citation.] The People have not made such a showing. In fact, the evidence establishes that Goodwillie was prejudiced,\\\" because of the evidence he would have accepted the plea offer. (Goodwillie, supra, 147 Cal.App.4th at p. 736.)\\nAs defendant interprets Goodwillie, all defendant has to do is show he was misadvised, which automatically constitutes a due process violation requiring reversal unless the People prove the error harmless beyond a reasonable doubt. However, the defendant's evidence in Goodwillie showed not only that the defendant was misadvised, but also that the misadvisement caused him to reject the plea offer.\\nWe shall assume for the sake of argument Goodwillie is correct in finding a due process violation from a misadvisement as to penal consequences.\\nWe respectfully disagree with Goodwillie, supra, 147 Cal.App.4th 695, however, to the extent it holds the burden is on the People to prove the error harmless beyond a reasonable doubt. (Id. at p. 736.) The burden of showing that a defendant would have accepted the plea bargain, had he been correctly advised of penal consequences, is properly placed on the defendant, for the following reasons:\\nFirst, \\\"[ajnyone who seeks on appeal to predicate a reversal of conviction on error must show that it was prejudicial. (Cal. Const., art. VI, \\u00a7 13.)\\\" (People v. Archerd (1970) 3 Cal.3d 615, 643 [91 Cal.Rptr. 397, 477 P.2d 421] [defendant bore burden of showing prejudice from preindictment delay in prosecution, so as to require reversal on due process grounds].) Defendant fails to show this is the type of case where prejudice is presumed. Generally, \\\"[a] person seeking to overturn a conviction on due process grounds bears a heavy burden to show the procedures used at trial were not simply violations of some rule, but are fundamentally unfair. [Citation.]\\\" (People v. Esayian (2003) 112 Cal.App.4th 1031, 1042 [5 Cal.Rptr.3d 542] [issue was forfeited and no evidence demonstrated that admission of blood test results, taken in violation of statute, violated due process], citing Montana v. Egelhoff (1996) 518 U.S. 37, 43-44 [135 L.Ed.2d 361, 116 S.Ct. 2013] [statute prohibiting voluntary intoxication from being taken into consideration in determining existence of criminal mental state did not violate due process].) It has been consistently held that where a defendant seeks to withdraw a guilty plea due to misadvisement by the court regarding consequences of the plea, the \\\"defendant (even on direct appeal) is entitled to relief based upon a trial court's misadvisement only if the defendant establishes that he or she was prejudiced by the misadvisement, i.e., that the defendant would not have entered the plea of guilty had the trial court given a proper advisement.\\\" (In re Moser (1993) 6 Cal.4th 342, 347, 352-353 [24 Cal.Rptr.2d 723, 862 P.2d 723] [remanded to allow defendant to present evidence that he was prejudiced by trial court's misadvisement regarding parole term, where prosecution failed to challenge absence of evidence before trial court allowed defendant to withdraw guilty plea]; accord, People v. McClellan (1993) 6 Cal.4th 367, 374-378 [24 Cal.Rptr.2d 739, 862 P.2d 739] [trial court's failure to advise about sex offender registration was harmless error because defendant did not object at sentencing and failed to meet his burden to show prejudice].) People v. Zaidi (2007) 147 Cal.App.4th 1470 [55 Cal.Rptr.3d 566], allowed a defendant to withdraw a guilty plea due to misadvisement by the court regarding the lifetime nature of sex offender registration, because the defendant showed prejudice in his prompt effort to withdraw his plea, accompanied by his specific declaration that he would not have entered a plea had he known of the lifetime registration requirement. (Id. at p. 1490.) We see no reason to apply a different rule where misadvisement allegedly causes a defendant to reject a plea bargain in the first place.\\nSecond, it makes sense to require the defendant to show prejudice, because the defendant is the only one who knows whether he would have accepted the plea bargain absent the misadvisement. Goodwillie thus assigns the People an impossible burden insofar as it requires the People to show absence of prejudice.\\nThird, when a defendant claims misadvisement by defense counsel and seeks reversal due to ineffective assistance of counsel, the defendant has the burden to show he or she would have made a different decision had defense counsel advised properly. (In re Alvernaz, supra, 2 Cal.4th 924, 936-937 [to establish a claim of ineffective assistance of counsel in the context of a defendant's rejection of a proffered plea bargain, the defendant must show not only deficient performance by counsel, but also prejudice, i.e., a reasonable probability that defendant would have accepted the plea offer but for counsel's deficient performance, and that the trial court would have approved the plea bargain]; see also cases seeking to withdraw guilty pleas, e.g., Hill v. Lockhart (1985) 474 U.S. 52, 58-59 [88 L.Ed.2d 203, 209-210, 106 S.Ct. 366] [defendant who pleaded guilty was required to show that, but for counsel's deficient performance, he would have rejected the plea offer and insisted on going to trial]; In re Resendiz (2001) 25 Cal.4th 230, 239, 253-254 [105 Cal.Rptr.2d 431, 19 P.3d 1171] [defendant failed to show he would have rejected plea bargain had trial counsel not misadvised him].) It would be anomalous to place the burden on the defendant in ineffective-counsel cases but on the People in other cases of misadvisement.\\nFinally, in this case, unlike Goodwillie, nothing in the record on appeal suggests defendant would have accepted the 30-year proffered deal if he had been correctly advised of penal consequences. (In re Resendiz, supra, 25 Cal.4th at p. 253 [in determining whether defendant would have accepted or rejected plea offer, pertinent factors include disparity between proposed plea bargain and probable consequences of going to trial (as viewed at the time of the offer), and whether the defendant indicated he or she was amenable to negotiating plea bargain].)\\nAt sentencing, the defense made no objection and showed no surprise at the 90-year sentence, nor did the defense claim the earlier misadvisement caused defendant to reject the plea offer.\\nDefendant asks us to draw from the record an inference that he would have accepted the plea bargain. He argues 68 years is \\\"a world away\\\" from 120 years, and the former would leave him a reasonable hope of release at age 82 (with nine years credit), whereas the latter would be in effect a life sentence without any real possibility of parole. We question defendant's math, because he was 31 years old at the time, and therefore would be age 99 at the end of 68 years, and age 90 if we deduct nine years' credit. In any event, even if we accept defendant's calculation, it could just as well be that a person of defendant's age (31) would not consider the possibility of parole at age 82 as a ray of hope. Such a person might consider 68 years as a life sentence, such that 120 years would have made no difference.\\nDefendant refers to the jury's verdict acquitting him of one count and finding him guilty of a lesser offense on another count, which lowered the sentence. However, the issue here was the potential maximum sentence at the time defendant rejected the pretrial plea offer (In re Resendiz, supra, 25 Cal.4th at p. 253), not the actual sentence he ended up with after trial. We recognize a defendant's plea decision may be based in part on the defendant's belief that his culpability is less than the prosecution thinks. Nevertheless, the ultimate verdict does not serve as evidence that defendant would have accepted the plea offer but for the misadvisement.\\nDefendant says the record suggests he might have been amenable to a plea bargain with a prison sentence, because he knew he was guilty of something, as reflected in his admissions to the sheriff's investigator and defense counsel's admission of two counts of molestation in closing argument to the jury (though defense counsel argued they were committed without force). However, these circumstances are insufficient to show defendant would have accepted the plea offer had he been properly advised about the potential sentence.\\nThus, even assuming the trial court would have accepted the plea bargain, we conclude defendant fails to show the misadvisement prejudiced him so as to entitle him to reversal of the judgment. (In re Alvernaz, supra, 2 Cal.4th at p. 945.)\\nIII.-V.\\nDISPOSITION\\nThe trial court shall prepare an amended abstract of judgment striking the $600 fine imposed under Penal Code section 243.4 and shall transmit a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.\\nDavis, J., and Raye, J., concurred.\\nAppellant's petition for review by the Supreme Court was denied January 14, 2009, S168154. George, C. J., did not participate therein. Kennard, J., was of the opinion that the petition should be granted.\\nUndesignated statutory references are to the Penal Code.\\nSection 667.61 provides in part that, \\\"any person who is convicted of an offense specified in subdivision (c) [including the offenses charged against defendant] under one of the circumstances specified in subdivision (e) [including offenses against more than one victim] shall be punished by imprisonment in the state prison for 15 years to life.\\\" (\\u00a7 667.61, subd. (b).)\\nWe refer to this pleading by its label of second amended information, even though defendant observes the court previously allowed an amendment by interlineation regarding a date in the first amended information.\\nDefendant mentions the statute of limitations in a footnote in his statement of facts. We need not address undeveloped points inadequately briefed. (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 [32 Cal.Rptr.2d 762, 878 P.2d 521].)\\nThis was wrong, even going by the face of the pleading in effect at the time, the first amended information. Defendant says that pleading would have yielded a possible sentence of 85 years.\\nThe People say the potential maximum sentence was 135 years to life, apparently referring to the original information containing nine counts. However, the first amended information, filed a few days before defendant stated on the record his rejection of the plea offer, contained only eight counts.\\nDefendant specifies he makes no claim of ineffective assistance of counsel in this appeal because it would require a petition for writ of habeas corpus.\\nSee footnote, ante, page 448.\"}"
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+"{\"id\": \"5753497\", \"name\": \"MARIAN TORTORELLA, Plaintiff and Respondent, v. DAN JOSHUA CASTRO, Defendant and Appellant\", \"name_abbreviation\": \"Tortorella v. Castro\", \"decision_date\": \"2006-06-01\", \"docket_number\": \"No. B184043\", \"first_page\": \"1\", \"last_page\": \"14\", \"citations\": \"140 Cal. App. 4th 1\", \"volume\": \"140\", \"reporter\": \"California Appellate Reports, Fourth Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T02:14:36.227396+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MARIAN TORTORELLA, Plaintiff and Respondent, v. DAN JOSHUA CASTRO, Defendant and Appellant.\", \"head_matter\": \"[No. B184043.\\nSecond Dist., Div. Three.\\nJune 1, 2006.]\\nMARIAN TORTORELLA, Plaintiff and Respondent, v. DAN JOSHUA CASTRO, Defendant and Appellant.\\nCounsel\\nMaranga \\u2022 Morgenstem, Kenneth A. Maranga, Reinhold Mueller; Greines, Martin, Stein & Richland, Martin Stein and Carolyn Gill for Defendant and Appellant.\\nWasserman, Comden & Casselman and Kevin H. Park for Plaintiff and Respondent.\", \"word_count\": \"4514\", \"char_count\": \"28492\", \"text\": \"Opinion\\nKLEIN, P. J.\\nDefendant and appellant Dan Joshua Castro, M.D. (Dr. Castro), appeals an order granting a motion for new trial obtained by plaintiff and respondent Marian Tortorella (Tortorella) in her medical malpractice action against him.\\nBy way of background, Dr. Castro brought a motion for summary judgment, asserting the care he rendered to Tortorella was consistent with the standard of care, and that no negligent act or omission by him either caused, or was a substantial factor in causing, harm to Tortorella. In opposition thereto, Tortorella presented an expert declaration stating the preoperative evaluation by Dr. Castro fell below the accepted standard of care, and that the sinus surgery he performed on her was unnecessary.\\nThe trial court granted summary judgment in favor of Dr. Castro on the ground Tortorella's opposing papers failed to raise a triable issue with respect to the causation element of a cause of action for medical malpractice. Thereafter, the trial court granted Tortorella's motion for new trial based on \\\"the equities\\\" and the policy favoring \\\"resolutions [on] the merits.\\\"\\nWe conclude the trial court erred in granting summary judgment in favor of Dr. Castro. Tortorella's opposing expert declaration, asserting the surgery Dr. Castro performed on Tortorella was unnecessary, was sufficient to raise a triable issue of material fact as to causation. If surgery is performed unnecessarily, the mere fact the surgery was performed is sufficient to constitute harm to the patient. Because the grant of summary judgment was legally erroneous, the trial court properly granted Tortorella's subsequent motion for new trial, even though it did so on improper grounds.\\nAccordingly, the new trial order is affirmed.\\nFACTUAL AND PROCEDURAL BACKGROUND\\n1. Facts.\\nOn April 15, 2002, Tortorella, who had a history of left-sided facial pain and pressure, underwent an MRI of her sinuses ordered by a physician.\\nOn April 24, 2002, Tortorella was examined by another physician. He found her symptoms were sinugenic and prescribed the antibiotic Cipro, the steroid nasal spray Nasacort, and the antihistamine Clarinex.\\nOn April 26, 2002, Tortorella met with a dentist, who attributed her symptoms to sinus problems.\\nOn May 6, 2002, Tortorella first presented to Dr. Castro with progressive, chronic and disabling rhinosinusitis bilaterally. He performed an endoscopic nasopharyngoscopy and determined Tortorella had a septal deviation bilaterally with 80 percent airway narrowing, a concha bullosa with thick mucous obstructing the middle ostium and a poorly draining middle turbinate and sphenoethmoid recess. Dr. Castro concluded Tortorella was an appropriate candidate for bilateral endoscopic sinus surgery and septoplasty and partial turbinectomy.\\nOn May 23, 2002, Tortorella underwent bilateral endoscopic sinus surgery, septoplasty and partial turbinectomy performed by Dr. Castro at UCLA Medical Center, and was discharged the same day. At the initial follow-up visit on May 31, 2002, Dr. Castro performed a bilateral sinus debridement and suction of nasal debris. On June 5, 2002, Tortorella again saw Dr. Castro and underwent another endonasal sinus debridement. Tortorella did not return to Dr. Castro for further care, believing something was done wrong in the surgery.\\n2. Proceedings.\\na. Pleadings.\\nOn August 1, 2003, Tortorella filed a complaint for medical malpractice against Dr. Castro and the Regents of the University of California (Regents). Tortorella alleged Dr. Castro was negligent in examining, diagnosing and treating her, causing permanent and serious injuries to her sinus and nasal system, as well as high blood pressure, head and facial pain.\\nb. Dr. Castro's motion for summary judgment.\\nDr. Castro moved for summary judgment, asserting (1) the care he rendered to Tortorella was consistent with the standard of care, and (2) to a reasonable medical probability, no negligent act or omission by him either caused, or was a substantial factor in causing, harm to Tortorella.\\nDr. Castro's motion was supported by the expert declaration of Paul H. Toffel, M.D. According to Dr. Toffel, Dr. Castro complied with the standard of care in all respects: Tortorella was an appropriate candidate for the endoscopic sinus surgery performed by Dr. Castro based on her history of sinus complaints, as well as the results of the physical examination via endoscopy and the MRI scan; the preoperative workup was performed entirely within the standard of care; Dr. Castro duly informed Tortorella of the risks, benefits and alternatives to surgery and Tortorella appropriately consented to the surgery; and the May 23, 2002 surgery was performed entirely within the standard of care, as were the two subsequent sinus debridements.\\nWith respect to the key issue of causation, the Toffel declaration stated: There was no reasonable medical probability that anything Dr. Castro did or failed to do in the care and treatment of Tortorella caused or was a substantial factor in any injury to her; persons with chronic sinusitis are bom with the disease and have a hereditary tendency for sinuses to inflame; and to a reasonable medical probability, Tortorella's alleged symptoms of left-sided facial pain were not due to any care rendered by Dr. Castro.\\nc. Tortorella's opposition.\\nIn opposition, Tortorella argued, \\\"summary judgment must be denied because triable issues of material fact exist in regard to the care and treatment of the plaintiff where she underwent unnecessary endoscopic surgery.\\\"\\nTortorella's opposition papers were supported by the declaration of Ellis C. Berkowitz, M.D., a board-certified specialist in the field of otolaryngology. Dr. Berkowitz stated: \\\"Based on a careful review of the medical records . . . and the MRI and CT scans of the sinuses, I am able to conclude with a high degree of medical probability that the pre-operative evaluation and the endoscopic sinus surgery performed by Dr. Castro on [May 23, 2002] fell below the accepted standard of care in the field of otolaryngology.\\\" (Italics added.) Specifically, Dr. Castro misread the MRI scan; this misreading of the MRI scan led him to schedule Tortorella for surgery; Dr. Castro scheduled Tortorella for surgery 15 days after his initial evaluation; he did not try medical therapy before surgery; the MRI scan did not reveal pathology in the sphenoid sinus, yet Dr. Castro removed tissue there. Further, \\\"[t]here were no diagnostic considerations by Dr. Castro of nasal and sinus allergy, underlying dental pathology or even some type of neuralgia. Without any clear understanding of the patient or her problem, he chose to perform major endoscopic sinus surgery just two weeks after his initial evaluation. The cultures at surgery revealed an anaerobic bacteria was found in the sinuses, but there is no indication in the medical record that Dr. Castro advised any medical treatment for this condition. As noted, these specific failures fall below the standard of care and on this record are an indication that the surgery was unnecessary.\\\" (Italics added.)\\nd. Trial court's ruling granting summary judgment in favor of Dr. Castro.\\nOn March 8, 2005, the matter came on for hearing and was taken under submission.\\nOn March 22, 2005, the trial court granted summary judgment in favor of Dr. Castro, ruling, \\\"[Tortorella] has failed to raise a triable issue of fact on the issue of causation, which her expert's declaration fails to address. The Court has reviewed the additional cases cited by counsel orally (Hanson v. Grode[, supra, 76 Cal.App.4th 601 [90 Cal.Rptr.2d 396]] and Mann v. Cracchiolo [(1985) 38 Cal.3d 18 [210 Cal.Rptr. 762, 694 P.2d 1134]]), and finds that neither case supports any different conclusion by the court. Accordingly, [Dr. Castro is] entitled to judgment as a matter of law.\\\"\\ne. Motion for reconsideration.\\nOn March 30, 2005, Tortorella filed a motion for reconsideration, arguing \\\"causation is axiomatic where the surgery was unnecessary.\\\" However, assuming the trial court was unable to draw this conclusion from the opposing declaration of Dr. Berkowitz, Tortorella submitted a supplemental declaration by Dr. Berkowitz, explaining the unnecessary surgery did in fact cause a direct injury to her.\\nDr. Castro opposed the motion, asserting Tortorella had failed to present any newly discovered facts or circumstances.\\nOn April 20, 2005, before the hearing on the motion for reconsideration, the trial court entered judgment on the summary judgment in favor of Dr. Castro.\\nOn May 12, 2005, the trial court denied the motion for reconsideration, ruling the entry of judgment deprived the trial court of its jurisdiction to reconsider its order granting summary judgment.\\nf. Motion for new trial.\\nOn April 29, 2005, nine days after entry of judgment, Tortorella filed a notice of intention to move for new trial on various grounds, including \\\"[insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law\\\" (\\u00a7 657, subd. (6)) and \\\"[e]rror in law, occurring at the trial and excepted to by the party making the application.\\\" (\\u00a7 657, subd. (7).)\\nIn the motion for new trial, Tortorella reiterated \\\"that causation is axiomatic where the surgery was unnecessary.\\\" Tortorella \\\"assert[ed] that where there been testimony establishing a breach of care with a high degree of medical probability, and the resulting surgery was unnecessary, the magic word 'causation' may be inferred from the fact that an endoscopic surgery procedure removing human tissue is an injury.\\\" However, in the event the trial court could not draw this conclusion from the declaration of Dr. Berkowitz filed in opposition to summary judgment, Tortorella resubmitted the supplemental declaration of Dr. Berkowitz from the motion for reconsideration, explaining the unnecessary surgery did in fact cause injury to her.\\nThe supplemental expert declaration elaborated: \\\"Surgery on the sinuses changes the normal sinus anatomy, and may result in further sinus infections, even worse than the patient had before the procedure. In this case, the surgery changed the patient's normal sinus anatomy and function. [(JQ . . . The unnecessary sinus surgery also put the patient under significant risk of anesthetic injury, bleeding and postoperative infection. These were risks directly caused by the unnecessary surgery. A trial on medical treatment was clearly indicated before taking the patient to surgery and subjecting her to these various risks without indication.\\\"\\nIn opposing the motion for new trial, Dr. Castro argued Tortorella failed to establish entitlement to a new trial, she failed to show the existence of any newly discovered evidence, and she failed to demonstrate the evidence now being presented could not have been produced earlier had she been diligent.\\nOn May 25, 2005, the trial court heard and granted the motion for new trial. It granted the motion \\\"based on the equities of the circumstances. The summary judgment motion was granted based on the failure of plaintiff to provide any expert testimony supporting causation. The motion to reconsider was denied for jurisdictional reasons and not [on] the merits. With legal precedence preferring resolutions [on] the merits rather than through technical errors, the Court rules that the trial go forward, with the supplemental declaration providing the missing support and the element of causation.\\\"\\nDr. Castro filed a timely notice of appeal from the order granting a new trial.\\nCONTENTIONS\\nDr. Castro contends: The order granting a new trial must be reversed because there was no statutory basis for granting a new trial; the trial court improperly granted a new trial on \\\"the equities\\\" and on a policy favoring disposition on the merits; the order for new trial could not have been based on newly discovered evidence because Tortorella failed to demonstrate the new evidence could not have been discovered earlier through the exercise of reasonable diligence; and the new trial order cannot be upheld on any alternative ground.\\nDISCUSSION\\n1. Propriety of motion for new trial following grant of motion for summary judgment.\\nA threshold issue is whether a motion for new trial may be brought following the grant of a motion for summary judgment.\\nThe early decision of Gray v. Cotton (1917) 174 Cal. 256, 258 [162 P. 1019] states, \\\"proceedings for new trial do not lie to secure the re-examination of the decision of a motion.\\\" (Id. at p. 258.)\\nHowever, the law since has evolved (see, e.g., Carney v. Simmonds (1957) 49 Cal.2d 84, 87-91 [315 P.2d 305] [holding a motion for a new trial is appropriate following an order granting judgment on the pleadings]) and it now is settled that a \\\"motion for a new trial is appropriate following an order granting summary judgment^] . . . even though, strictly speaking, 'summary judgment... is a determination that there shall be no trial at all.' [Citation.]\\\" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 858 [107 Cal.Rptr.2d 841, 24 P.3d 493].)\\nTherefore, Tortorella was entitled to bring a motion for new trial following the grant of summary judgment in favor of Dr. Castro.\\n2. Trial court's rationale for granting a new trial is immaterial; the new trial order will be upheld if correct on any ground.\\nSection 657 prescribes seven grounds upon which a new trial may be granted. Here, the trial court granted a new trial \\\"based on the equities of the circumstances\\\" as well as \\\"legal precedence preferring resolutions [on] the merits rather than through technical errors.\\\" The trial court's ruling does not fit within the statutory framework.\\nNonetheless, the trial court's rationale does not bind us. With certain exceptions not relevant here, section 657 provides in relevant part: \\\"On appeal from an order granting a new trial the order shall be affirmed if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons . . . .\\\" (Italics added.) Therefore, the order granting a new trial will be upheld if it should have been granted upon any ground raised in Tortorella's motion.\\nWe now examine whether the new trial motion should have been granted upon a ground raised by Tortorella.\\n3. Tortorella's motion for new trial established the decision granting summary judgment constituted an \\\"error in law\\\"; therefore, the grant of the motion for new trial was correct in result and will be affirmed.\\na. Standard of appellate review.\\n\\\"[A]n appellate court will rarely disturb an order granting a new trial and then, only on a clear showing of abuse of discretion. [Citation.] However, where the ground under consideration is that the original judgment order is 'against the law,' the area of judicial action generally is not one involving discretion. The initial choice of the trial court challenged by a motion on this ground was either right or wrong, and this is the nature of the evaluation which must be made in passing upon [said] motion . . . .\\\" (In re Marriage of Beilock (1978) 81 Cal.App.3d 713, 728 [146 Cal.Rptr. 675].)\\nb. Trial court erred in granting Dr. Castro's motion for summary judgment because Tortorella's opposition papers were not silent on the issue of causation; Dr. Berkowitz's opposing declaration, to the effect that Dr. Castro performed unnecessary surgery on Tortorella, was sufficient to raise a triable issue as to causation; the erroneous grant of summary judgment was cured by the order granting new trial.\\nTo reiterate, the expert declaration of Dr. Berkowitz filed in opposition to summary judgment stated: \\\"Based on a careful review of the medical records . . . and the MRI and CT scans of the sinuses, I am able to conclude with a high degree of medical probability that the pre-operative evaluation and the endoscopic sinus surgery performed by Dr. Castro on [May 23, 2002] fell below the accepted standard of care in the field of otolaryngology.\\\" (Italics added.) Specifically, Dr. Castro misread the MRI scan; this misreading of the MRI scan led him to schedule Tortorella for surgery; Dr. Castro scheduled Tortorella for surgery 15 days after his initial evaluation; he did not try medical therapy before surgery; the MRI scan did not reveal pathology in the sphenoid sinus, yet Dr. Castro removed tissue there. Further, \\\"[t]here were no diagnostic considerations by Dr. Castro of nasal and sinus allergy, underlying dental pathology or even some type of neuralgia. Without any clear understanding of the patient or her problem, he chose to perform major endoscopic sinus surgery just two weeks after his initial evaluation. The cultures at surgery revealed an anaerobic bacteria was found in the sinuses, but there is no indication in the medical record that Dr. Castro advised any medical treatment for this condition. As noted, these specific failures fall below the standard of care and on this record are an indication that the surgery was unnecessary.\\\" (Italics added.)\\nAlthough the trial court read this declaration as being silent with respect to the issue of causation, it seems self-evident that unnecessary surgery is injurious and causes harm to a patient. Even if a surgery is executed flawlessly, if the surgery were unnecessary, the surgery in and of itself constitutes harm. Surprisingly, despite the volume of medical malpractice litigation, there is a dearth of case law in California on this point. However, Emerson v. Bentwood (2001) 146 N.H. 251 [769 A.2d 403], is instructive.\\nThere, a plaintiff, who underwent a hysterectomy after suffering from intermittent pelvic pain for 17 years, brought a medical malpractice action against the surgeon, alleging the hysterectomy was unnecessary. (Emerson, supra, 769 A.2d at p. 405.) The plaintiff's expert, Dr. Klapholz, testified the defendant deviated from the standard of care in performing the hysterectomy and that far less invasive and risky ways existed to make a diagnosis than the removal of the plaintiff's organs. (Ibid.)\\nAt the close of the plaintiff's case, the trial court granted the defendant's motion for a directed verdict, ruling, inter alia, even assuming there were a deviation from the standard of care, Dr. Klapholz's testimony failed to establish causation. (Emerson, supra, 769 A.2d at pp. 405-406.)\\nThe New Hampshire Supreme Court reversed the directed verdict and remanded the case for a new trial. (Emerson, supra, 769 A.2d at p. 409.) With respect to the question of causation, the high court cited Dr. Klapholz's testimony \\\"that the defendant incorrectly diagnosed the plaintiff's condition as pelvic inflammatory disease. Further, Dr. Klapholz testified that had the defendant employed alternative diagnostic procedures, such procedures would have ruled out pelvic inflammatory disease. Moreover, he saw no evidence that a hysterectomy was required for the treatment of what was in the plaintiff's record at the time and that he considered a hysterectomy premature.\\\" (Id. at p. 407.)\\nEmerson stated: \\\"Whether the hysterectomy was necessary was an issue for the jury to resolve. Dr. Klapholz's testimony goes to the weight of the evidence, a matter strictly within the province of the jury to determine.\\\" (Emerson, supra, 769 A.2d at p. 408, italics added.)\\nEmerson agreed with the plaintiff that she met her burden of proof by presenting reliable expert testimony which clearly established the causal link between the defendant's negligence and the plaintiff's wrongful hysterectomy. (Emerson, supra, 769 A.2d at p. 408.) \\\"The burden is on the plaintiff to prove that she 'suffered injuries which would not otherwise have occurred' as a proximate result of the defendant's negligence. [Citation.] The plaintiff must establish the proximate cause between the negligence and injury by expert testimony. [Citation.] The quantum of evidence required to survive a directed verdict is only 'enough to warrant the conclusion . . . that the causal link probably existed.' [Citation.]\\\" (Ibid.)\\n\\\"Dr. Klapholz repeatedly contended . the defendant's conduct deviated from the standard of care when the defendant performed a hysterectomy given the plaintiff's symptoms. The plaintiff's alleged injury was the loss of her reproductive organs as a result of a wrongful hysterectomy. In other words, the expert testified that the plaintiff 'suffered injuries which would not otherwise have occurred.' [Citation.] No recitation of 'specific words or phrases mirroring statutory language' is necessary to establish causation. [Citation.]\\\" (Emerson, supra, 769 A.2d at p. 408, italics added.)\\n\\\"The plaintiff offered sufficient expert testimony to show a causal link between the defendant's alleged negligence and the plaintiff's alleged injury. [Citation.] To conclude otherwise could conceivably render a plaintiff remediless whenever a physician acted prematurely and without a definitive diagnosis.\\\" (Emerson, supra, 769 A.2d at p. 408, italics added.) Emerson concluded: \\\"The expert's testimony was sufficient for a rational trier of fact to conclude that the defendant should have employed less invasive measures before resorting to a hysterectomy and that said deviation from the standard of care resulted in the plaintiff's injury.\\\" (Id. at p. 409.)\\nWe recognize that in Emerson, the allegedly unnecessary surgery resulted in the loss of the patient's reproductive organs. However, any unnecessary surgery is inherently injurious in that the patient needlessly has gone under the knife and has been subjected to pain and suffering.\\nTherefore, at the summary judgment stage, if the opposing papers raise a triable issue as to whether a physician deviated from the standard of care by unnecessarily performing surgery, that is sufficient also to raise triable issues with respect to the two remaining elements of a cause of action for medical malpractice, namely, \\\" ' \\\"(3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.\\\" ' \\\" (Hanson v. Grode, supra, 76 Cal.App.4th at p. 606.)\\nThus, Dr. Berkowitz's expert declaration to the effect that the May 23, 2002 surgery was premature and unnecessary, was sufficient to raise a triable issue of material fact not only as to whether the performing of said surgery was a deviation from the standard of care, but also as to the presence of a causal connection between the negligent conduct and injury to the patient.\\nTherefore, the trial court erred in granting summary judgment in the first instance, but the error was cured by the order granting a new trial.\\nCONCLUSION\\nThe trial court erred in granting Dr. Castro's motion for summary judgment because Tortorella's opposition papers were not silent on the issue of causation. Dr. Berkowitz's opposing declaration, to the effect that Dr. Castro performed unnecessary surgery on Tortorella, was sufficient to put in issue the element of causation. Given Dr. Berkowitz's opposing declaration, the trial court should have denied Dr. Castro's motion for summary judgment. Said error was remedied by the trial court by its grant of the motion for new trial, even though it granted the motion on improper grounds.\\nDISPOSITION\\nThe order granting a new trial is affirmed. Tortorella shall recover costs on appeal.\\nCroskey, J., and Aldrich, J., concurred.\\nAn order granting a new trial is appealable. (Code Civ. Proc., \\u00a7 904.1, subd. (a)(4).) All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.\\n\\\" '[I]n any medical malpractice action, the plaintiff must establish: \\\"(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.\\\" [Citation.]' [Citation.]\\\" (Hanson v. Grade (1999) 76 Cal.App.4th 601, 606 [90 Cal.Rptr.2d 396], italics added.)\\nThe Regents obtained summary judgment on other grounds which are not relevant here. Tortorella has not challenged the summary judgment in favor of the Regents. Her motion for new trial was directed solely at the judgment in favor of Dr. Castro. The judgment in favor of the Regents is final and this appeal solely concerns the grant of a new trial with respect to Tortorella's cause of action against Dr. Castro.\\nSection 657 enumerates the following seven grounds for granting a new trial: \\\"1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. [<|Q 2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors. [IQ 3. Accident or surprise, which ordinary prudence could not have guarded against. [j[] 4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial, [f] 5. Excessive or inadequate damages, [f] 6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law. [IQ 7. Error in law, occurring at the trial and excepted to by the party making the application.\\\"\\nThe full text of the cited portion of section 657 states: \\\"On appeal from an order granting a new trial the order shall be affirmed if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons, except that (a) the order shall not be affirmed upon the ground of the insufficiency of the evidence to justify the verdict or other decision, or upon the ground of excessive or inadequate damages, unless such ground is stated in the order granting the motion and (b) on appeal from an order granting a new trial upon the ground of the insufficiency of the evidence to justify the verdict or other decision, or upon the ground of excessive or inadequate damages, it shall be conclusively presumed that said order as to such ground was made only for the reasons specified in said order or said specification of reasons, and such order shall be reversed as to such ground only if there is no substantial basis in the record for any of such reasons.\\\" (Italics added.)\\nDr. Castro also contends that in opposing summary judgment, Tortorella failed to produce competent evidence as to causation because the initial Berkowitz declaration failed to establish to a reasonable degree of medical probability that the surgery was unnecessary. Dr. Castro focuses on the final sentence of the declaration, wherein Dr. Berkowitz stated certain conduct by Dr. Castro was \\\" 'an indication' that the surgery was unnecessary.\\\" (Italics added.) We reject Dr. Castro's contention that Tortorella failed to produce competent evidence of causation. As set forth above, earlier in the declaration Dr. Berkowitz stated: \\\"Based on a careful review of the medical records . . . and the MRI and CT scans of the sinuses, I am able to conclude with a high degree of medical probability that the pre-operative evaluation and the endoscopic sinus surgery performed by Dr. Castro on [May 23, 2002] fell below the accepted standard of care in the field of otolaryngology.\\\" (Italics added.) Taking the Berkowitz declaration as a whole and construing the declaration liberally in favor of Tortorella, as the party opposing summary judgment (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1143 [29 Cal.Rptr.3d 144]), we conclude Dr. Berkowitz's initial declaration sufficiently opined it was medically probable the surgery was unnecessary.\\nThe issue of whether Dr. Castro duly obtained Tortorella's informed consent to the sinus surgery is not before us and we do not address it.\"}"
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+"{\"id\": \"6038287\", \"name\": \"LINCOLN PROPERTY COMPANY NO. 41, INC., Plaintiff and Respondent, v. ARTHUR LAW, Defendant and Appellant; CITIZENS COMMITTEE FOR THE PRESERVATION OF THE SAN CARLOS FOOTHILLS, Movant and Appellant\", \"name_abbreviation\": \"Lincoln Property Co. No. 41, Inc. v. Law\", \"decision_date\": \"1975-02-11\", \"docket_number\": \"Civ. No. 33639\", \"first_page\": \"230\", \"last_page\": \"236\", \"citations\": \"45 Cal. App. 3d 230\", \"volume\": \"45\", \"reporter\": \"California Appellate Reports, Third Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T02:05:23.295297+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"LINCOLN PROPERTY COMPANY NO. 41, INC., Plaintiff and Respondent, v. ARTHUR LAW, Defendant and Appellant; CITIZENS COMMITTEE FOR THE PRESERVATION OF THE SAN CARLOS FOOTHILLS, Movant and Appellant.\", \"head_matter\": \"[Civ. No. 33639.\\nFirst Dist., Div. Two.\\nFeb. 11, 1975.]\\nLINCOLN PROPERTY COMPANY NO. 41, INC., Plaintiff and Respondent, v. ARTHUR LAW, Defendant and Appellant; CITIZENS COMMITTEE FOR THE PRESERVATION OF THE SAN CARLOS FOOTHILLS, Movant and Appellant.\\nCounsel\\nMelvin C. Kerwin, Frederick L. Lyon and James M. Himmel for Defendant and Appellant and for Movant and Appellant.\\nWilliam D. Esselstein as Amicus Curiae on behalf of Defendant and Appellant and Movant and Appellant.\\nHession, Creedon, Hamlin, Kelly, Hanson & Farbstein, Paul F. Kelly and Gordon E. McClintock for Plaintiff and Respondent.\", \"word_count\": \"2206\", \"char_count\": \"13611\", \"text\": \"Opinion\\nKANE, J.\\nArthur W. Law and the Citizens Committee for the Preservation of the San Carlos Foothills (\\\"Committee\\\") appeal from the lower court's judgments granting a preliminary and permanent injunction, and from certain court orders denying motions to intervene and to set aside judgment pursuant to Code of Civil Procedure, section 473. The facts relevant to the present appeal may be summarized as follows:\\nRespondent, a real estate developer, acquired a tract of land commonly known as \\\"Lands of Roth\\\" in the City of San Carlos (\\\"City\\\"). The property in question was annexed to the City in 1968 and was zoned Planned Community (PC). In 1969 the City council approved a development plan for William Roth, the previous owner, which plan, however, was never completed.\\nFollowing the acquisition of the land by respondent, in December 1971, the City planning commission adopted a new development plan for the tract, prescribing a number of conditions with respect to the detailed plan to be prepared by respondent. The new plan, which specified a development of smaller magnitude than previously approved, and in which no zoning changes were proposed, was adopted by the City council on January 24, 1972. The plan was extensively discussed at public hearings both before the planning commission and the City council.\\nIn compliance with the conditions set forth in the new plan, in May 1972 respondent submitted a precise plan of development, a grading plan, and a tentative subdivision map to the City for approval. After a public hearing in which counsel for appellants also participated, by a resolution handed down on December 11, 1972 (\\\"December Resolu tion\\\"), the City council approved the precise plan, the tentative subdivision map and the grading plan submitted by respondent. On January 9, 1973, the Committee, an unincorporated association, filed a referendum petition with the City clerk requesting that the December Resolution be repealed or submitted to a vote of the people at a regular municipal election or a special election to be called for this purpose.\\nThereafter, on January 29, 1973, respondent, as a taxpayer, initiated the present lawsuit seeking to enjoin the City and its officers from conducting an unlawful referendum election (first cause of action), and to restrain the named private individuals from circulating the referendum petition and making any further misrepresentations concerning the effects of the December Resolution (second cause of action). The procedural steps following the complaint may be outlined as follows:\\nOn the day of the filing of the complaint the trial court issued a temporary restraining order enjoining the City, its employees and the private individual defendants from the activities complained of. This was followed by a preliminary injunction issued on March 20, 1973. On April 10, 1973, the trial court heard and overruled the demurrer of the individual defendants. On April 20, 1973, the City filed a verified answer admitting the allegations of the first cause of action. On April 24, 1973, respondent filed a request for dismissal of the second cause of action and an application for judgment on the pleadings on the uncontested first cause of action. In acting upon the request, the trial court dismissed the second cause of action and granted a permanent injunction against the City and its employees only. The permanent injunction was issued' on April 24, 1973, and entered on April 25, 1973. On this latter date the Committee, which was not a party to the action, filed a motion to intervene. This motion along with a motion to vacate judgment were denied by the trial court on May 10, 1973. The present appeal followed.\\nAlthough appellants, joined by amicus curiae, attack the judgments and orders at issue on procedural grounds as well, their primary contention on appeal is that by enjoining the City from processing their referendum petition the trial court violated the fundamental rights secured by article IV, section 1, of the California Constitution, and thereby committed reversible error. We disagree.\\nWhile it has been generally said that the reserved power of initiative and referendum accorded by article IV, section 1, of the Constitution is to be liberally construed to uphold it whenever reason able (Beck v. Piatt (1972) 24 Cal.App.3d 611 [101 Cal.Rptr. 236]; Collins v. City & Co. of S. F. (1952) 112 Cal.App.2d 719 [247 P.2d 362]), it is established beyond dispute that the power of referendum may be invoked only with respect to matters which are strictly legislative in character (Wheelright v. County of Marin (1970) 2 Cal.3d 448, 457 [85 Cal.Rptr. 809, 467 P.2d 537]; Johnston v. City of Claremont (1958) 49 Cal.2d 826, 834 [323 P.2d 71]). Under an unbroken line of authorities, administrative or executive acts are not within the reach of the referendum process (Wheelright v. County of Marin, supra; Simpson v. Hite (1950) 36 Cal.2d 125, 129 [222 P.2d 225]; Housing Authority v. Superior Court (1950) 35 Cal.2d 550, 557 [219 P.2d 457]; Hughes v. City of Lincoln (1965) 232 Cal.App.2d 741, 744 [43 Cal.Rptr. 306]). The plausible rationale for this rule espoused in numerous cases is that to allow the referendum or initiative to be invoked to annul or delay the executive or administrative conduct would destroy the efficient administration of the business affairs of a city or municipality (Hopping v. Council of City of Richmond (1915) 170 Cal. 605, 611 [150 P. 977]; Duran v. Cassidy (1972) 28 Cal.App.3d 574, 581 [104 Cal.Rptr. 793]; Martin v. Smith (1960) 184 Cal.App.2d 571, 575 [7 Cal.Rptr. 725]). The narrow issue confronting us, therefore, is whether the December Resolution constitutes a legislative or an administrative act.\\nIn answering this question, we are not without aid. In defining the legislative and administrative functions the cases draw a careful distinction between the two. Accordingly, acts constituting a declaration of public purpose and making provisions for ways and means of its accomplishment may be generally classified as calling for the exercise of legislative power. Acts of administration, on the other hand, are those which are necessary to carry out the legislative policies and purposes already declared by the legislative body (Reagan v. City of Sausalito (1962) 210 Cal.App.2d 618, 621 [26 Cal.Rptr. 775]; McKevitt v. City of Sacramento (1921) 55 Cal.App. 117, 124). Or, as the court put it in Martin v. Smith, supra, \\\" ' \\\"Thepower to be exercised is legislative in its nature if it prescribes a new policy or plan; whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it\\\" ' \\\" (italics added; see also: Valentine v. Town of Ross (1974) 39 Cal.App.3d 954, 957 [114 Cal.Rptr. 678]; Seaton v. Lackey (1944) 298 Ky. 188 [182 S.W.2d 336, 339]; 5 McQuillin on Municipal Corporations (3d ed.) pp. 213-214).\\nTested by the,foregoing standard, the instant record conclusively establishes that the zoning change which undoubtedly constituted a legislative act (cf. Johnston v. City of Claremont, supra; Dwyer v. City Council (1927) 200 Cal. 505 [253 P. 932]) took place not in December 1972, but by the adoption of the new plan of development on January 24, 1972. The December Resolution, which is the subject matter of the present litigation, was no more than an approval of the precise plan which, in turn, simply carried out and implemented the purposes and conditions that had been prescribed by the January resolution. This conclusion is in accord with the decision of the trial court, and is abundantly supported by the record on appeal. It goes without saying that where, as here, the appeal has been taken on the clerk's transcript alone, it is conclusively presumed that the evidence before the trial court was sufficient to support the findings (Winkelman v. City of Tiburon (1973) 32 Cal.App.3d 834, 841 [108 Cal.Rptr. 415]; Millbrae Assn. for Residential Survival v. City of Millbrae (1968) 262 Cal.App.2d 222, 226 [69 Cal.Rptr. 251]).\\nIn sum, we hold that since the legislative objectives and conditions of development were laid down in the January 1972 resolution of the City council and the acts of respondent approved at the December 1972 meeting were done merely to carry out the legislative policies already declared, the December Resolution must be classified as a purely administrative act which is not subject to the referendum process.\\nIn reaching our conclusion we are greatly aided by Andrews v. City of San Bernardino (1959) 175 Cal.App.2d 459 [346 P.2d 457] (cert. den., 364 U.S. 288 [5 L.Ed.2d 38, 81 S.Ct. 48]), and Valentine v. Town of Ross, supra, a case recently decided by this court. In Andrews, akin to the case at bar, under a community redevelopment law, the city retained the right to approve the final redevelopment plans. Under that circumstance the court held that the city's ordinance approving such plans was not a legislative act, but instead an administrative or executive function which was unaffected by the power of referendum. In Valentine, another case in point, there was a 1967 resolution by which the Town of Ross adopted schematic plans for a flood control project reserving rights to approve the detailed plans later. The detailed plans for the construction were approved by the town council in three steps in 1969 and 1970. Plaintiffs sought a referendum election from Resolution 901 adopted in May 1970. In holding that Resolution 901 was an administrative act, not subject to referendum, the court pointed out that the declaration of public purpose was laid down in the 1967 resolution, and the later resolutions of the town council were but the administrative implementations of the previously declared public purpose, and that the approval of the final detailed plans constituted merely one of the means of accomplishing the primary objective.\\nWe are satisfied that Millbrae Assn. for Residential Survival v. City of Millbrae, and Wheelright v. County of Marin, both supra, are distinguishable from the case at bench. It appears clear that the holding off Millbrae is based upon the circumstance that the later changes amounted to a substantial alteration of the general plan and were therefore tantamount to rezoning of the district. Nothing remotely similar can be found in the case at bench, where the precise plan decreased\\u2014rather than increased\\u2014the general size of the buildings (cf. Millbrae Assn. for Residential Survival v. City of Millbrae, supra at pp. 245-246). In Wheelright, the decisive factor was likewise a substantial change whereby a later ordinance approved a plan for an access road to the rezoned area which had not even been considered in the earlier adopted master plan. As emphasized before, in the case at bench all the changes that the December Resolution approved had not only been considered, but also prescribed by the January plan.\\nIn view of our conclusion, the additional issues raised in appell\\u00e1nts' briefs, i.e., denial of motion to intervene, denial of motion to set aside judgment under Code of Civil Procedure, section 473, etc., become inconsequential and need not be discussed.\\nThe judgments and orders are, and each is, affirmed.\\nTaylor, P. J., and Rouse, J., concurred.\\nA petition for a rehearing was denied March 13, 1975, and the petition of all the appellants for a hearing by the Supreme Court was denied April 16, 1975. Sullivan, J., did not participate therein.\\nThe pertinent part of the trial court's memorandum decision granting the preliminary injunction reads as follows: \\\"It has been established to the satisfaction of the Court that the action of the San Carlos City Council on December 11, 1972 was administrative and executive. The legislative action of the council which might have been subject to a referendum petition took place in January, 1972. The subsequent actions of the council related to the details of the plan previously established.\\\"\\nThus, the record indicates that commenting on the precise plan at the December 1972 hearing, Planning Consultant Byce stated inter alia that \\\"this is a precise plan which was approved previously as a plan of development; . . . the plan that was originally before the Planning Commission and City Council. .\\\" In his sworn statement submitted to the trial court he likewise reaffirmed that \\\"A new plan of development for this property [Lands of Roth] was adopted by the City Council on January 24, 1972. This was an amended plan of development for the area.... \\\"On December 11, 1972, the City Council approved a specific plan of development which is accurately represented by the map attached hereto . This map was submitted, along with a tentative subdivision map and a grading plan, to detail the plan of development in a manner that complied with the conditions imposed by the City Council on January 24, 1972. Said precise plan and grading plan were approved subject to the conditions set forth .\\\" (Italics added.)\"}"
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+"{\"id\": \"6040159\", \"name\": \"C. R. VESPER, Appellant, v. FOREST LAWN CEMETERY ASSOCIATION (a Corporation) et al., Respondents\", \"name_abbreviation\": \"Vesper v. Forest Lawn Cemetery Ass'n\", \"decision_date\": \"1937-04-02\", \"docket_number\": \"Civ. No. 5771\", \"first_page\": \"157\", \"last_page\": \"169\", \"citations\": \"20 Cal. App. 2d 157\", \"volume\": \"20\", \"reporter\": \"California Appellate Reports, Second Series\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T01:07:57.053239+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"C. R. VESPER, Appellant, v. FOREST LAWN CEMETERY ASSOCIATION (a Corporation) et al., Respondents.\", \"head_matter\": \"[Civ. No. 5771.\\nThird Appellate District.\\nApril 2, 1937.]\\nC. R. VESPER, Appellant, v. FOREST LAWN CEMETERY ASSOCIATION (a Corporation) et al., Respondents.\\nW. I. Gilbert, W. L. Pollard and S. L. Kurland for Appellant.\\nHeller, Ehrman, White & McAuliffe, Martin Minney, Jr., C. F. Cable, Michael F. Shannon and Thomas A. Wood as Amici Curiae on Behalf of Appellant.\\nCall & Murphey, Robert B. Murphey, Glen Whitney and Harold Morrison for Respondents.\\nHanna & Morton, Byron C. Hanna, Raymond Brennan, Sullivan, Roche & Johnson and Ed. P. Sample, as Amici Curiae on Behalf of Respondents.\", \"word_count\": \"3771\", \"char_count\": \"22194\", \"text\": \"PULLEN, P. J.\\nPlaintiff and appellant, C. R. Vesper, as the owner of certain interment space in a lot in Forest Lawn now known as Forest Lawn Memorial-Park, a private cemetery, is seeking by injunction to prevent respondent, and particularly Forest Lawn Memorial-Park Association, Inc., from engaging in the undertaking business for profit in a building situated in Forest Lawn Memorial-Park near Glendale.\\nTo the complaint, a demurrer on behalf of all defendants was interposed and sustained without leave to amend. A motion by plaintiff to reconsider was then filed, and for permission to file an amended complaint. This motion was denied, and a judgment of dismissal was entered, from which judgment this appeal is taken.\\nThis court has been assisted by able briefs presented by respective counsel and by friends of the court, both supporting and attacking the judgment appealed from. We appreciate the importance of a ruling as to whether it is legal to operate a mortuary upon lands which had been dedicated to cemetery purposes under the provision of the General Cemetery Act of California (Stats. 1931, chap. 1148, Deering's Gen. Laws, Act 1288), but as we view the pleadings before us that question cannot be here considered as we deem it beyond the function of the court to take up issues which lie outside of the immediate scope of the action presented for solution.\\nWe are of the opinion that the judgment of the trial court in sustaining the demurrer to the complaint was correct for the reason that this is an action for injunctive relief, and plaintiff has failed to allege, and from the nature of the facts, cannot allege, that he has sustained an injury.\\nFrom the complaint it appears that appellant does not own and has no interest in any of the real property upon which the alleged unauthorized business is being conducted. It also appears that appellant owns no stock of and has no interest in Forest Lawn Memorial-Park Association, Inc., or any of the other defendant corporations. It does not appear that Forest Lawn Memorial-Park Association, Inc., has committed any trespass on or desecration of the plot owned by appellant. It does not appear either in the original complaint or in the proposed amended complaint that the mortuary can be seen from his lots or that the operation of the mortuary has depreciated the value of his lots, or that upon resale he would suffer loss. Clearly one who has suffered no injury nor damage, nor whose rights have been in anywise invaded, nor who has suffered any interference in his easement, nor who has alleged nor is able to establish that the maintenance of a mortuary impairs the beauty and value of his lot, nor the convenience of ingress to or egress from it, has ground to complain of another, or to enjoin another's acts.\\nIn paragraph 1 of the complaint it is alleged that C. R. Vesper is a resident of the county of Los Angeles. Paragraph 2 alleges the corporate capacity of the various defendants. As to the principal defendant, Forest Lawn Memorial-Park Association, Inc., it is alleged that it was organized under the laws of the state of California as a non-profit organization with no capital stock. In paragraph 3 is an allegation that Forest Lawn Cemetery Association holds title to the cemetery lots, which-includes the lot of plaintiff, in which interment rights have been conveyed to the purchasers, subject only to certain rights of such purchasers. Paragraph 4 alleges that in 1918 the American Security & Fidelity Company executed and delivered to plaintiff a deed to a certain cemetery lot which was made with the consent of Forest Lawn Cemetery Association. In paragraph 5 it is alleged that in March, 1932, defendants Forest Lawn Company and Forest Lawn Memorial-Park Association, Inc., filed for record a map of Forest Lawn Memorial-Park together with a certificate of dedication whereby it dedicated said lands to private cemetery purposes. That in December, 1932, Forest Lawn Company entered into an agreement with Forest Lawn Memorial-Park Association, Inc., wherein lessor agreed to build a three-story building .to be used exclusively as a funeral directors' establishment by lessee. It is further alleged that Forest Lawn Memorial-Park Association, Inc., had obtained from the state board of embalmers and funeral directors, a license to operate a funeral directing business, and has begun such business of a funeral director in such building, which is situated within the outer boundaries of Forest Lawn Memoral-Park, and will continue so to do until restrained by order of court. Paragraph 6 alleges that plaintiff has requested defendants and each of them to refrain from constructing or operating such undertaking or embalming establishment within the boundaries of Forest Lawn Cemetery, but defendants have refused, and plaintiff now seeks an order enjoining defendants from operating and conducting an undertaking business within Forest Lawn Memorial-Park.\\nFrom these allegations it will be seen that plaintiff has failed to state facts justifying the relief sought. In High on Injunctions, section 790, the rule is thus expressed: \\\"Nor will an injunction be continued against the erection of a structure where the facts do not satisfactorily show a probable or irreparable injury to the complainant. ' ' This rule is adopted in Orcutt v. Pasadena Land etc. Co., 152 Cal. 599 [93 Pac. 497] ; Galbreath v. Hopkins, 159 Cal. 297 [113 Pac. 174]. In Lorenz v. Waldron, 96 Cal. 243 [31 Pac. 54], the court said: \\\"A mere possibility or anything short of a reasonable probability of injury is insufficient to warrant an injunction against any proposed use of property by its owner.\\\" (Citing numerous eases.)\\nIn Clough v. Healy Co., 53 Cal. App. 397 [200 Pac. 378], an injunction was refused, the court there saying: \\\"The right must be clear, and an injunction of the character here in question will be denied where the obstruction does not constitute a material interference with the right of the owner of the easement, or where the damage sustained by him is merely nominal. \\\" Moreover, the issuance of an injunction is not a matter of right, but reposes in the discretion of the court. Sturgeon v. City of Hawthorne, 106 Cal. App. 352 [289 Pac. 229] ; Willis v. Lauridson, 161 Cal. 106 [118 Pac. 530], and, in the exercise of its discretion, a court will be guided by the general rule of convenience, that is, will consider whether a greater injury will result to the respondent from granting it than would be caused to the appellant in refusing. (Santa Cruz Fair Bldg. Assn. v. Grant, 104 Cal. 306 [37 Pac. 1034] ; Williams v. Los Angeles R. Co., 150 Cal. 592, 596 [89 Pac. 330].) The application of this rule will be found also applied in the case of Hess v. Country Club Park, 213 Cal. 613, 614 [2 Pac. (2d) 782].\\nAppellant conceded that his complaint does not contain an allegation to the effect he has suffered measurable pecuniary damages, but contends that he has a vested right in the cemetery and to the uses to which it may be put, which right has been invaded, and by reason of that fact alone he is entitled to injunctive relief.\\nIn support of such rule he first cites Walker v. Haslett, 44 Cal. App. 394 [186 Pac. 622]. This was an action to enjoin the violation of a restriction in a deed to defendant, wherein defendant violated the agreement by erecting a double or two-family house. It is true that in such cases injury to the plaintiff need not be shown, but the reason for this special exception is thus given in Walker v. Haslett, supra, which reasons make it inapplicable to the instant case.\\n' When clearly expressed, covenants of this description will be clearly enforced, and a court of equity will decree an injunction, and this without any showing of actual damage or substantial injury. The reason why no actual damage or substantial injury need be shown is that the owner of the land, when selling it to another, may insist on just such covenants as he pleases touching its use or mode of enjoyment. He has the right to define the injury for himself, and also for his grantees of the remaining lots in his tract, where he is subdividing a whole tract into lots and selling them pursuant to a general plan of improvement or development, and the purchaser of any lot contracting with him must abide by his definition of what shall be deemed to be an injury to the balance of the land. He, or any subsequent owner of any part of the remaining land for the benefit of which the restrictive covenant is made, may enforce the covenant when it is broken, and is not to be defeated by the opinion of any number of persons that the breach occasions no substantial injury. . . . \\\" (Citing eases.)\\nAppellant cites Hornblower v. Masonic Cemetery Assn., 191 Cal. 83 [214 Pac. 978]. That case, while stating that the courts differ as to how they shall define the interest conveyed in a cemetery lot, holds that a majority of the courts agree that the conveyance does not pass any title but merely an interest, and that the fee remains in the grantor, subject to the right of the grantee to the exclusive use thereof for burial purposes and finally held \\\" . . . appellant had a right cognizable in equity to the continued and undisturbed use of his cemetery lot . \\\". There the association threatened to abandon the entire cemetery and remove all bodies therefrom, manifestly constituting a direct injury to plaintiff. Here plaintiff does not contend that he has been disturbed in the use of his lot.\\nIn Polhemus v. Daley, (Mo. App.) 296 S. W. 442, defendant was entering the cemetery, dedicated to a public use, with a horse and dragging a sled over the graves, and removing sod for the purposes of sale, thereby causing the identity of the graves to be obliterated. Such act constituted a desecration of all the graves, and defendant was therefore enjoined. In Cochran v. Hill, (Tex. Civ. App.) 255 S. W. 768, defendants were enjoined from pasturing livestock in the cemetery and from drilling oil wells therein and from interfering with complainant's access to the land.\\nIn Certia v. University of Notre Dame, Du Lac, 82 Ind. App. 542 [141 N. E. 318], plaintiff sought to enjoin burials in the walks and paths in a distant part of the cemetery, and to cause the removal of the bodies already buried there. The court there held:\\n\\\" . . . each (lot owner or plaintiff) had the right to protect from invasion the particular lot owned by him, as well as the right of ingress and egress thereto. But, while it may be conceded that any one of the owners of such cemetery lots had a right to protect his property from invasion, and to maintain his right of access thereto, it does not follow that he may assert such right with reference to some other lot in which he has no property interest in another section of the cemetery and remote from his own.\\n' It stands to reason under the averments of the complaint that appellant only has interest in the walk, path or driveway giving ingress and egress to his own lot. ' '\\nHere, also, the court had the right to consider the laches of plaintiff, which would be a circumstance to be considered in passing upon the injunction. From the complaint it appears that in 1932 a lease was entered into whereby lessor agreed to build a structure to be used exclusively as a funeral directing establishment, which building was completed in May, 1933. This complaint was not filed until almost two years after the lease and more than a year after the business of a funeral director was instituted. In Los Angeles Athletic Club v. City of Long Beach, 128 Cal. App. 427 [17 Pac. (2d) 1061], plaintiff sued for an injunction. The evidence there showed that the plaintiff had waited nearly six months before seeking relief, but during that time defendant had expended considerable sums in constructing the alleged illegal breakwater. The court there held that because of such a delay of six months, plaintiff was guilty of laches, and so was not entitled to an injunction. Here appellant stood by while respondents constructed and occupied a large building to carry on the business of a funeral director, and for a considerable period made no complaint while said business was being operated. He cannot, after having passively permitted the defendants to spend money and effort, now enjoin defendants from carrying on said business. This rule finds support in the cases of Gurnsey v. Northern California Power Co., 160 Cal. 699 [117 Pac. 906, 36 L. R. A. (N. S.) 185] ; County of Los Angeles v. Rindge Co., 69 Cal. App. 72 [230 Pac. 468] ; Miller & Lux Inc. v. Enterprise Canal & Land Co., 169 Cal. 415 [147 Pac. 567],\\nAppellant denies that his complaint is barred by laches because the relief sought does not contemplate the destruction of the building but merely seeks to prevent an unauthorized use thereof. We can almost take judicial notice of the fact, however, that a three-story building erected and specially designed as a funeral directing establishment situated where this structure is, could find only a very limited use for any purpose other than for which it was erected, and to deprive respondents of the particular use for which it was constructed is akin to its physical destruction. It is true as argued by appellant that to establish laches, something more than mere delay must be shown, but here we do find more; we find respondents expending large sums of money in equipping the building and the carrying on of long and expensive litigation concerning the mortuary.\\nIn Williams v. Blue Bird Laundry Co., 85 Cal. App. 388 [259 Pac. 484], the action was to enjoin a public nuisance. In such a case lapse of time will not justify a special injury by a continuing nuisance; also it did not appear that the laundry had expended any money in its proposed development.\\nIn the instant case the operation of a mortuary is not a public nuisance (Dean v. Powell Undertaking Co., 55 Cal. App. 545 [203 Pac. 1015]), and as already pointed out, large sums have been expended thereon.\\nIn St. Peters E. L. Church v. Kleinfelter, 96 Pa. Sup. Ct. 146, cited by appellant, the action was to restrain defendants from going upon a burial ground which was completely filled with graves and removing fences and tombstones, building a blacksmith shop over some of the graves and using part of the cemetery to corral horses and cattle. The action was ' to restrain the use of the property in any manner whatsoever except as a burial ground, and to require the removal of all buildings or other structures inconsistent therewith\\\", and holding it'would be inequitable to apply the doctrine of laches in an action to restrain the desecration of a burial ground.\\nAppellant further contends that if this complaint is barred by laches he should be given the right to amend by showing that a test case was pending. However, an amended complaint has already been submitted which fails to allege any such defense, and furthermore even if such were the case, it would not toll the statute of limitations or excuse his delay. We believe both the complaint and the proposed amended complaint show that the trial court would have been justified in finding the action barred by laches.\\nTurning to the proposed amended complaint, set up in four separate causes of action, we find that in paragraph 3 of the first cause of action the inter-relation of the various respondent corporations is set out in greater detail than in the original complaint.\\nThe second count of the proposed amended complaint sets up a cause of action arising from an allegation of a violation of a common law dedication of property for a cemetery. In paragraph 9 of that count plaintiff alleges that he was defrauded in the buying of a burial lot by reason of certain advertisements or representations of defendants that the entire Forest Lawn Memorial-Park was to be devoted to cemetery purposes. There is, however, no allegation of damage to plaintiff, and the reasons given in support of the demurrer to the original complaint are applicable here to show that the second count of the proposed amended complaint fails to state a cause of action.\\nThe third count of the proposed amended complaint attempts to set forth a cause of action of estoppel and alleges that the plaintiff was induced to purchase his lot by reason of false representations. Paragraph 2 of the third count alleges that plaintiff acquired his lot in 1918 from the American Security & Fidelity Company, but this corporation is not made a party to the action, and apparently plaintiff is attempting in this proposed amended complaint to sue corporations which were not incorporated until several years after the purchase of the property by plaintiff.\\nThe fourth count of the proposed amended complaint attempts to set up a cause of action based upon the alleged violation of the constitutional rights of plaintiff. In this cause of action it is alleged that the legislature, in 1931, enacted the General Cemetery Act of the state of California, and that said act, if interpreted to mean that under its terms an undertaking and funeral directing establishment may be conducted on premises dedicated for cemetery purposes, then said act of the legislature would be in violation of the rights of plaintiff and deprives plaintiff of substantial property rights in violation of the Fourteenth Amendment of the United States Constitution, and in violation also of section 13 of article I of the Constitution of the state of California. The answer to this attempted cause of action is that plaintiff is attempting to anticipate a future condition, but in order to state a cause of action the same must exist at the time the complaint is filed, and not when something in the future might come to pass.\\nUnder the facts here existing \\\"due process of law\\\" is available to the plaintiff- by quo warranto. Appellant therefore, being able to obtain from the courts a fair hearing and an impartial determinations of his rights, cannot here contend that he has suffered a denial of \\\"due process of law\\\". It has been repeatedly determined that if there be an opportunity to be heard some time during the proceedings, the constitutional guarantee of due process is not denied. Furthermore appellant cannot claim that he is denied \\\"the equal protection of the law\\\" for the General Cemetery Act is a statute which applies to each member of a general class of plot owners in cemeteries in California. Appellant is in no different position than any other plot owner, and as long as the statute applies impartially to every member of the general class, no member of that class can charge that it deprives him of equal protection of the laws so long as the conduct of the legislature in creating a general class is reasonable. (Tinsley v. Anderson, 171 U. S. 101, 106 [18 Sup. Ct. 805, 43 L. Ed. 91] ; Field v. Barber Asphalt Paving Co., 194 U. S. 618, 621 [24 Sup. Ct. 784, 31 L. Ed. 1142].)\\nPlaintiff himself states that his proposed amended complaint, in addition to containing a more elaborate statement of his original cause of action, predicated upon a statutory dedication of the cemetery lands to cemetery purposes exclusively, contains three additional counts centering around the alleged unlawful erection of a mortuary upon the dedicated area, and contains no new matter except to detail the corporate history and set-up of the three defendants and alleging certain representations made in connection with the sale of the lot in question and in the operation and mainte nance of the cemetery in general. Nowhere, however, does plaintiff claim to have set forth any damage to himself, present or prospective, by reason of the erection or operation of a mortuary or undertaking establishment within the exterior boundaries of Forest Lawn.\\nThe privilege of amending a complaint after demurrer is sustained rests in the sound discretion of the trial court. (Whyte v. City of Sacramento, 65 Cal. App. 534 [224 Pac. 1008] ; Buckley v. Howe, 86 Cal. 596 [25 Pac. 132] ; Hansen v. Carr, 73 Cal. App. 511 [238 Pac. 1048].)\\nIn Fetterley v. Gibson, 210 Cal. 282 [291 Pac. 411], the court said: \\\"The allowance or refusal of amendments is a matter so largely within the sound discretion of the trial court that its exercise will not be disturbed in the absence of a showing of gross abuse. ' '\\nAnother contention made by appellant is that Forest Lawn Company, the owner of the land occupied by the cemetery, was without power to lease a portion of its dedicated lands to Forest Lawn Memorial-Park Association, Inc., for the operation of a mortuary. But that is a question beyond the right of appellant to raise, for questions concerning the exercise of corporate powers cannot be raised collaterally by a third person, but by the state in quo warranto proceedings. (McCann v. Children's Home Society, 176 Cal. 359 [168 Pac. 355] ; People v. California Protective Corp., 76 Cal. App. 354 [244 Pac. 1089] ; Ballantine, Manual of Corporation Law and Practice (1930), sections 86, 86a and 86b.\\nWe do not believe the meaning or effect of the General Cemetery Act is properly before us and we refrain from considering its provisions. We do, however, find the complaint fails to state a cause of action for injunctive relief and that the trial court did not err in refusing to allow plaintiff to file its proposed amended complaint, and the judgment is therefore affirmed.\\nThompson, J., and Plummer, 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 May 27, 1937.\"}"
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+"{\"id\": \"6042108\", \"name\": \"GEORGE T. WILLIAMS, Appellant, v. F. A. HEBBARD et al., Respondents\", \"name_abbreviation\": \"Williams v. Hebbard\", \"decision_date\": \"1939-07-17\", \"docket_number\": \"Civ. No. 6127\", \"first_page\": \"686\", \"last_page\": \"692\", \"citations\": \"33 Cal. App. 2d 686\", \"volume\": \"33\", \"reporter\": \"California Appellate Reports, Second Series\", \"court\": \"District Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T23:29:51.053017+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GEORGE T. WILLIAMS, Appellant, v. F. A. HEBBARD et al., Respondents.\", \"head_matter\": \"[Civ. No. 6127.\\nThird Appellate District.\\nJuly 17, 1939.]\\nGEORGE T. WILLIAMS, Appellant, v. F. A. HEBBARD et al., Respondents.\\nWalter H. Duane for Appellant.\\nRoland J. White and William F. White for Respondents.\", \"word_count\": \"1675\", \"char_count\": \"9689\", \"text\": \"ALLEN, J., pro tem.\\nThis action arose out of certain deeds of conveyance made to the respective parties by a common grantor. One Armistead owned lot 37 situate in sections 4, 8, 9 and 17, township 18 north, range 8 east, M. D. B. & M., in Yuba County. On November 10, 1932, Armistead deeded to plaintiff the northern portion of said lot 37 by the following description: \\\"A strip of land commencing on the west boundary of the Great Eastern Mine, at a point where the right bank of Willow Creek crosses the eastern boundary of said Nevada Mining Company's Placer Mine and extending along said right bank a distance of 755 feet; thence at right angles to the left bank of said Willow Creek along said left bank of said Creek to the point where said left bank crosses the east boundary of said Nevada Mining Company's Placer Mine.\\\" On September 27, 1933, said Armistead deeded to defendant F. A. Hebbard the southern portion of said lot 37, by conveyance containing the following description: \\\"Nevada Mining Co. Placer Mine, also described as Lot 37, situated in Sections 4, 8, 9 and 17, Township 18 North, R. 8 East, M. D. B. & M., according to the United States Plat of Survey of said mining claim, being particularly described in Patent, United States of America, to Josiah P. Brown, et als., dated March 19th, 1875, recorded May 5th, 1875 in Book I of Patents, page 343, excepting Parcel I (not material here), Parcel 2. 'A strip of land commencing at the west boundary of the Great Eastern Mine at a point where the right bank of Willow Creek crosses the eastern boundary of Nevada Mining Company's Placer Mine, and extending along said right bank 755 feet; thence at right angles to the left bank of Willow Creek; thence along the left bank of said Creek to a point where said left bank crosses the east boundary of Nevada Mining Company's Placer Mine, and thence to the point of beginning, being the property described in the deed from C. H. Armistead to George T. Williams, dated November 10th, 1932, recorded November 22nd, 1932, in Book 17, Official Records page 181.' \\\" This exception in the deed to Hebbard, being the same description as the land deeded by Armistead to Williams, November 10, 1932. There is no dispute as to the northern boundary of the parcel conveyed to Williams, and the court found that there is no ambiguity in the Williams' deed as locating a definite tract of land.\\nThe undisputed evidence showed that the description for this Williams deed was obtained by a United States forest ranger named Meggers pacing from the north boundary of the tract to a point which he thought was 755 feet from the north boundary, and at which point he blazed a small, yellow pine tree. There is testimony that Armistead put a small iron stake and blazed a tree at this point shortly after Meggers had paced the land as indicating the south boundary of the tract he intended to convey to Williams. After the conveyance to Hebbard, it was found that the place where Hebbard is purported to have placed the iron stake was 792.20 feet from the north boundary, instead of being 755 feet, as set forth in the Williams deed. This was later ascertained by a survey of the land. Williams called on Armistead to make a correction, and on December 29, 1933, Williams deeded back to Armistead by quitclaim deed the land he received by his deed from said Armistead, and by the same description, and on the same day Armistead redeeded to Williams, a tract which, according to the surveyor's notes, placed the south boundary 792.20 feet from the north boundary of the tract, and covering a parcel of land 37.2 feet in width and extending across the property.\\nThe first point made by appellant in his brief is as follows: Permanent and visible or ascertained boundaries or monuments are paramount over measurements where same are inconsistent. There is no question that this is a correct rule of law, but the first deed from Armistead to Williams does not make a call to any stake or monument. It apparently extended down 755 feet from the north boundary of lot No. 37. This rule is laid down in section 2077 of the Code of Civil Procedure and is a rule for construing descriptions in deeds, or other written instruments, and does not mean that a court can go outside of the deed to find a monument not mentioned in the instrument and make the description fit it. This is so apparent from the section itself and is so elementary that it requires no authority to support it.\\nIf the description in the deed does not cover the land intended by both parties to be conveyed, because of a mutual mistake, reformation of the deed would have been the proper remedy. If Armistead's deed to plaintiff did not cover the land intended, plaintiff could have sued Armistead for a reformation, and could have compelled correction if Armistead was still the owner of the omitted land. Also, if the later deed from Armistead to Hebbard, through mutual mistake of Hebbard and Armistead, covered this disputed tract, that was not intended to be conveyed to Hebbard, then Armistead could have sued Hebbard for a reformation of the deed. This right to have the deed corrected would pass to the successors in interest to Armistead. Therefore, the deed from Armistead to Williams on December 29, 1933, conveyed to Williams all right, if any, Armistead had to the disputed tract, including the right to sue Hebbard for a reformation thereof on the ground of mutual mistake.\\nIt is important to consider the pleadings in this case. Plaintiff sued to quiet title to the land according to the description in the second Armistead deed to him. Defendant was at that time under his deed of September 27, 1933, from Armistead, the holder of the record and legal title to the disputed parcel, and the most the plaintiff's second deed could give him was an equitable right to have the Armistead deed to Hebbard reformed, if there was a mutual mistake in its execution. It has been held in this state that a mere equitable right to have a deed reformed will not support an action to quiet title. (Castro v. Barry, 79 Cal. 443 [21 Pac. 946]; Von Drachenfels v. Doolittle, 77 Cal. 295 [19 Pac. 518]; Fudickar v. West Riverside Irr. Dist., 109 Cal. 29 [41 Pac. 1024]; Chapman v. Hicks, 41 Cal. App. 158-165 [182 Pac. 336].) It would appear that plaintiff mistook his remedy when he filed complaint to quiet title.\\nDefendant denies plaintiff's title to the disputed parcel and alleges the defendant is the owner of said disputed tract in fee, and by way of cross-complaint sued to quiet defendant's title to all the land covered by the Armistead deed to him, including the disputed tract, and alleges that the plaintiff claims an adverse claim thereto, and avers that said plaintiff's claim is without right. Plaintiff answers this cross-complaint and sets up his adverse claim by way of answer to the cross-complaint, alleging there was a mutual mistake in the first Armistead deed to him and also a mutual mistake in the Armistead deed to Hebbard. Plaintiff also alleges that Hebbard had knowledge of plaintiff's ownership and possession of said tract, and that the boundaries between the tract that Hebbard was buying and the Williams' property was pointed out to Hebbard at the time before he purchased. The plaintiff, as cross-defendant had a right to set up any equitable defense that he had as an adverse claim as against cross-complainant's action to quiet title. Therefore, the mutual mistake was properly brought in issue by the answer to the cross-complaint. (Sec. 738, Code Civ. Proc.; Pennie v. Hildreth, 81 Cal. 127 [22 Pac. 398]; Bancroft's Code Pleading, vol. 4, p. 3904; Whitney v. Sherman, 178 Cal. 435 [173 Pac. 931]; Milliken v. Valencia, 47 Cal. App. 16 [189 Pac. 1049] ; Bancroft's Code Pleading, Practice and Remedies, Ten-year Supp. (vol. 2), p. 1058.)\\nThe court found against plaintiff on his complaint, and found that defendant and cross-complainant was the owner of the land described in his deed, including the disputed tract, and found that plaintiff and cross-defendant had no right, title, claim or interest therein. There is sufficient evidence to support these findings, and there is no claim by appellant that the evidence is insufficient to support the findings. It is true the court did not make a particular finding on the allegations in the answer to cross-complaint, that the boundaries of plaintiff's land were pointed out to defendant wdien Armistead sold to him, and that the defendant had knowledge of plaintiff's possession. The evidence on this point was conflicting. As the court did find, however, that defendant owned this disputed tract, and that plaintiff had no right, title, claim or interest therein, the finding being against plaintiff and cross-defendant on his complaint, and in favor of cross-complainant, it was not necessary for the court to find on each probative fact set forth in the answer to the cross-complaint in support of his adverse claim. The court did find on the ultimate fact that the cross-defendant had no right, title, claim or interest in said particular tract. (Wells v. B. F. Porter Estate, 205 Cal. 776 [272 Pac. 1039]; Aries v. Squires, 105 Cal. App. 414 [287 Pac. 515] ; Reiniger v. Hassell, 216 Cal. 209 [13 Pac. (2d) 737] ; City of Signal Hill v. Wyse, 9 Cal. App. (2d) 641 [50 Pac. (2d) 1076].)\\nIt is therefore apparent that the judgment in this case should be affirmed. It is so ordered.\\nThompson, J., and Pullen, P. J., concurred.\"}"
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+"{\"id\": \"6043236\", \"name\": \"ESTHER TOVAR et al., Plaintiffs and Appellants, v. SOUTHERN CALIFORNIA EDISON COMPANY, Defendant and Respondent\", \"name_abbreviation\": \"Tovar v. Southern California Edison Co.\", \"decision_date\": \"1988-05-23\", \"docket_number\": \"No. F008064\", \"first_page\": \"606\", \"last_page\": \"618\", \"citations\": \"201 Cal. App. 3d 606\", \"volume\": \"201\", \"reporter\": \"California Appellate Reports, Third Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T21:33:07.872817+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ESTHER TOVAR et al., Plaintiffs and Appellants, v. SOUTHERN CALIFORNIA EDISON COMPANY, Defendant and Respondent.\", \"head_matter\": \"[No. F008064.\\nFifth Dist.\\nMay 23, 1988.]\\nESTHER TOVAR et al., Plaintiffs and Appellants, v. SOUTHERN CALIFORNIA EDISON COMPANY, Defendant and Respondent.\\nCounsel\\nRobert F. Kratky, Houk, Hicks, Spain & Line and Lloyd L. Hicks for Plaintiffs and Appellants.\\nF. Leonard Sisk, Harry W. Young, James A. Trecartin, Kingsley Hines, Howard L. Collins, Barbara L. Sorem and Donald A. Redd for Defendant and Respondent.\", \"word_count\": \"4569\", \"char_count\": \"28406\", \"text\": \"Opinion\\nHAMLIN, Acting P. J.\\nEsther Tovar and 10 other plaintiffs appeal from a judgment dismissing their complaint for damages against Southern California Edison Company (SoCal) after the trial court sustained SoCal's demurrer to plaintiffs' only cause of action against it without leave to amend.\\nWe are here called upon to decide when, if ever, a public utility company becomes tortiously liable to the actual users of utility services for violating the notice requirements specified in Public Utilities Code section 777 by terminating those services at the direction of a master customer. The statute has received no prior judicial construction and thus presents a case of first impression. We will conclude such liability may arise only if the utility company's failure to give the notice of pending termination required by section 777 is the proximate cause of damages suffered by the users of utility services as a result of the termination. Under the circumstances of the instant case, plaintiffs have alleged no facts upon which to predicate the requisite element of causation. Since it appears plaintiffs cannot, we will affirm the judgment.\\nProcedural Background\\nOn May 22, 1986, plaintiff Esther Tovar and 10 other named plaintiffs filed a verified complaint for damages against SoCal, a public utility company, and 10 other named defendants, as owners or managers of the Starbuck Motel in the City of Visalia where plaintiffs resided as month-to-month tenants. The complaint alleged causes of action for (1) breach of the implied warranty of habitability, (2) nuisance, (3) constructive eviction, (4) termination of utility services (Civ. Code, \\u00a7 789.3), (5) interference with use of the premises, (6) trespass, and (7) conversion. SoCal was named only in the fourth and fifth causes of action which alleged that plaintiffs' utility services at the subject premises had been shut off.\\nSoCal demurred, generally (Code Civ. Proc., \\u00a7 430.10, subd. (e)) and specially on the ground of uncertainty (Code Civ. Proc., \\u00a7 430.10, subd. (f)), and moved to strike portions of plaintiffs' complaint. Before the hearing, plaintiffs filed an unverified first amended complaint which designated the fifth cause of action as a \\\"Tort in Essence\\\" based on SoCal's alleged failure to comply with the provisions of section 111. Plaintiffs then stipulated in writing that the only cause of action in their first amended complaint that is directed against SoCal is the fifth cause of action. SoCal filed a general demurrer, claiming plaintiffs had failed to state a cause of action against it, and moved to strike portions of the complaint. In opposing SoCal's demurrer, plaintiffs argued SoCal's failure to give plaintiffs notice of an intent to shut off utilities at least 10 days before it terminated those services gave rise to liability for violation of section 777.\\nIn sustaining SoCal's demurrer without leave to amend, the trial court explained: \\\"It is the opinion of this Court that \\u00a7 777 of the Public Utilities Code imposes a duty only when service is terminated due to a delinquency in payment. The allegations here are that termination was due to causes other than delinquency in payment.\\n\\\"Insofar as Defendant's Motion to Strike has been rendered moot by this order, the same is denied with leave to its being renewed, should this order be reversed . . . .\\\"\\nDiscussion\\nPlaintiffs' only argument to the trial court and, initially, on appeal, was that the four-day notice of intent to terminate utility services for nonpayment furnished by SoCal on November 14 did not satisfy the requirements of section 777. Plaintiffs argued this defective notice rendered SoCal liable to plaintiffs in tort even though SoCal actually terminated utility services on November 15 at the specific direction of its customer (who as landlord and/or manager of the motel units where plaintiffs resided had been named separately as a defendant in this action) and not for delinquencies in the customer's account. Plaintiffs have argued that defective notice given on November 14 gave rise to SoCal's liability in tort regardless of the actual reason for termination. Plaintiffs have ignored the basic elements necessary to create liability in tort.\\nAt the time of the events alleged in plaintiffs' complaint, section 777 provided in relevant part: \\\"(a) Where utility service is provided by a public utility subject to Section 779 or 780 to residential occupants through a master meter or where individually metered residential service is furnished in a multiunit residential structure, mobilehome park, or farm labor camp where the owner or manager of the multiunit residential structure, mobile-home park, or the farm labor employer is listed by the utility as the subscriber of record of the utility service, the public utility shall make every good faith effort to inform the occupants that service will be terminated at least 10 days prior to termination. The notice shall further inform the occupants that they have the right to become utility customers, to whom the service will then be billed, without being required to pay any amount which may be due on the account.\\nAs originally enacted as an addition to the Public Utilities Code (Stats. 1976, ch. 1033, \\u00a7 1, p. 4624), section 777, subdivision (a), made specific reference to an intent to terminate service \\\"when the account is in arrears.\\\" Although this language was deleted when section 777 was amended to the version in effect at the time of the events upon which plaintiffs' complaint is based (Stats. 1981, ch. 441, \\u00a7 1, p. 1685), our review of the legislative history of Assembly Bill No. 830, 1981-1982 Regular Session, persuades us that the purpose of this amendment was not to broaden the circumstances under which the utility company must give 10 days' notice of proposed termination but to broaden the class of actual users to whom this protection must be extended. Thus while as originally enacted section 777 provided that notice of intent to terminate for nonpayment must be provided to actual users of utility services who receive such services through a master meter, Assembly Bill No. 830 extended this protection to users of individually metered residential service living in a multiunit residential structure, total billing for which is directed solely to one subscriber of record, usually the landlord or manager.\\nConsistent with our analysis of the legislative history of section 777, plaintiffs have conceded this statute applies only when termination of utility services is proposed because of arrearages in the master customer's account. Plaintiffs alleged in their complaint that \\\"[o]n or about November 14, 1985, at 12:56 p.m., an employee of defendant, Southern California Edison Company, left a notice for all plaintiffs residing on the subject premises, such notice stating that electric service will be discontinued on November 18th.\\\" Reference to that notice, attached to plaintiffs' complaint as exhibit B, shows (1) it was addressed to the master customer, Simon Younger, (2) advising him of a $130.01 arrearage in his account and (3) advising him that utility services were subject to termination without further notice if the amount was not paid by November 18, four days from the date of the notice. Since it appears from this notice that SoCal did intend to terminate utility services on a master metered account for nonpayment, we do not question the applicability of section 777. However, we must not lose sight of the posture in which this case is presented to us. The issue here is not merely the applicability of the statute. Plaintiffs, attempting to state a cause of action sounding in tort, seek to recover damages for violation of the statute; to prevail against SoCal's general demurrer, plaintiffs must allege facts sufficient to satisfy each element of their cause of action.\\nClearly under the circumstances we have described, SoCal's duty to comply with the requirements of section 111 arose when, on or before November 14, 1985, it proposed to terminate utility services to plaintiffs, as actual users, because of delinquencies in the account of the master customer. We have already described the notice SoCal provided; the deficiencies in this notice in light of section 777 are so glaring they need no further discussion. Thus we conclude plaintiffs have alleged facts sufficient to demonstrate not only that SoCal owed them a duty to give proper notice of intent to terminate services because of delinquencies in the account of the master customer, but that SoCal breached that duty. However, the absence of facts sufficient to show the third element necessary to a valid cause of action in tort, causation, is fatal to plaintiffs' complaint.\\nIn the fourth cause of action directed against the owners and managers of the motel for termination of utility services with the intent to terminate plaintiffs' tenancy, for which plaintiffs sought compensatory, punitive, and statutory damages pursuant to Civil Code section 789.3, subdivision (c), plaintiffs alleged: \\\"On or about November 7, 1985, defendants Terry G. Hill, Jerry Hill, Simon N. Younger, L. D. Younger and Cliff Younger, with intent to terminate all plaintiffs^] occupancy of the premises, did willfully and maliciously, directly and indirectly, cause the termination and interruption of plaintiffs' natural gas and electric utility services. On or about November 15, 1985, the above defendants, with the intent to terminate plaintiffs' occupancy of the premises, did willfully and maliciously, directly and indirectly, cause the termination and interruption of plaintiffs' water service. Plaintiffs' electricity service was turned on again on or about November 7, 1985. On or about November 15, 1985, the above named defendants, with the assistance of the Southern California Edison Company, did willfully and maliciously, cause the re-termination and interruption of plaintiffs' electricity service. All plaintiffs were without utility service as a result of these actions until they individually vacated the premises.\\\" These specific allegations are incorporated by reference into plaintiffs' fifth cause of action, the only cause of action directed against SoCal, where plaintiffs further alleged: \\\"On or about the afternoon of November 15, 1985, defendant Doe 1, as an employee of Southern California Edison Company, acting within the course and scope of his employment, came upon the premises driving a truck identified as owned by Southern California Edison Company, and caused the immediate termination of plaintiff's [szc] electric utility service. Plaintiffs allege that defendants failed to make every good faith effort to inform plaintiffs by means of a notice that service will be terminated at least 10 days prior to termination.\\\"\\nRead together, the only reasonable inference that can be drawn from plaintiffs' allegations is that despite SoCal's announced intention on November 14 to terminate plaintiffs' utility services because of arrearage in the account of its master customer, SoCal's actual termination of those services on November 15, three days before the termination date stated in the defective notice, was at the direction of SoCal's customer, Simon Younger. Plaintiffs have not argued to the contrary either in the trial court or on appeal.\\nPlaintiffs also have failed to challenge SoCal's contention that, as a public utility company, it is required to honor a customer's request that service be terminated within two days; failure to do so relieves the customer of further liability for payment.\\nIn the state of the record before us, plaintiffs' bare assertion that SoCal's notice that failed to comply with the requirements of section 777 directly and proximately caused plaintiffs' damage is not enough. The pleading of that conclusion is inconsistent with the facts alleged in the fourth cause of action in plaintiffs' original complaint that was verified under penalty of perjury. These are the same allegations that appeared in the fourth cause of action stated in plaintiffs' first amended complaint and incorporated into the fifth cause of action in the first amended complaint. As our Supreme Court pointed out in Faulkner v. Cal. Toll Bridge Authority (1953) 40 Cal.2d 317, 328 [253 P.2d 659]: \\\"Furthermore, although a plaintiff may plead inconsistent counts or causes of action in his complaint [citation] even where, as here, it be verified, if there are no contradictory or antagonistic facts [citations], we are in accord with the view stated by the court in the Beatty case [Beatty v. Pacific States S. & L. Co. (1935) 4 Cal.App.2d 692, 697 (41 P.2d 378)] that the rule was not 'intended to sanction the statement in a verified complaint of certain facts as constituting a transaction in one count or cause of action, and in another count or cause of action a statement of contradictory or antagonistic facts as constituting the same transaction. In short, the rule does not permit the pleader to blow both hot and cold in the same complaint on the subject of facts of which he purports to speak with knowledge under oath.' \\\" No fact was averred in plaintiffs' first amended complaint which shows that SoCal's defective notice of intention to terminate services because of an arrearage in the master account had anything to do with the damage plaintiffs suffered as a result of SoCal's termination of services for reasons other than the arrearage. Under Smith v. Buttner (1891) 90 Cal. 95, 99 [27 P. 29], a general allegation of causation in this situation is insufficient. Although the rule of Smith was expressly limited in Goldstein v. Healey (1921) 187 Cal. 206, 212 [201 P. 462], to apply only to a case pleaded in such manner as to involve equal possibility of liability and nonliability, this is such a case.\\nWe do not question that the Legislature was concerned about the plight of people, often of severely limited financial resources, who receive utility services through a master account when the landlord, as the master customer, fails to make payments to the utility company. In fact, Assembly Bill No. 3404 was originally sponsored by California Rural Legal Assistance and was apparently drafted along the lines of those outlined in a settlement between Pacific Gas & Electric Company and 300 agricultural tenants in El Centro who were left without utility services when their landlord failed to pay the bill. The legislative response was a remedial one, addressed to a specific and identified harm\\u2014termination of utility services vital to the actual users of those services who, absent the legislation, had no ability to compel or to substitute payments nor, realistically, any means of obtaining utility services in their own right.\\nDespite this laudable purpose, however, we cannot impose tort liability upon a public utility company for failure to give the notice required by section 777, whether such failure is in providing a defective notice or in giving no notice whatsoever, unless this breach of the utility company's statutory duty causes the damage sustained by the users whose utility services are terminated. When the public utility company does not initiate the termination, even if it would have terminated service had a delinquent account gone unpaid, but acts only at the direction of its master customer, absent something to suggest a collusive agreement between the public utility company and the master customer to circumvent the statutory notice requirements, any deficiency in the notice provided by the public utility company cannot be the cause of the user's damages, and the company is not liable in tort. The user's remedy is against the individual or entity directing the termination, a remedy plaintiffs have invoked.\\nWe can reach no other conclusion without construing section 777 far beyond the legislative intent we can discern from the legislative history to which we have referred. Plaintiffs have suggested that once a public utility company has given any notice of its intent to terminate utility services delivered under a master account for nonpayment by the master customer, the requirements of section 777 must be fulfilled despite the intervention of, for example, direction to terminate utility services by the master customer as occurred in this case. However, to so construe section 777 would mean that once a public utility company has given notice to such actual users of utility services that it intends to terminate for nonpayment, either (1) the master customer would forfeit his or her right to direct termination of services, thus remaining liable for payment of further charges incurred until the requirements of section 777 are met, or (2) the public utility company would have to continue to provide services to the actual users despite an intervening direction to terminate from the master customer, correspondingly terminating the master customer's financial responsibility on the account. In this latter case, the public utility company would be compelled to provide utility services during the statutory time period with, quite possibly, no customer of record to look to for payment. While either of these results might further the underlying legislative purpose which we have discussed, neither can properly be implemented by judicial construction of the statute. If the Legislature believes the problem presented by this case needs such a remedy, it must enact one.\\nThe only remaining question for decision is whether the trial court abused its discretion in sustaining SoCal's demurrer without leave to amend. As the Supreme Court explained in Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58]: \\\"[W]hen [a demurrer] is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]\\\" (See also Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 486 [229 Cal.Rptr. 324, 723 P.2d 64].)\\nWe are also guided by the comment of the court in Hills Trans. Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702, 709 [72 Cal.Rptr. 441]: \\\"The basic principle governing the privilege of amendment is clear enough: amending of the pleading should be allowed if it appears likely the pleader has, and can state, a recognizable legal claim; amendment should be denied if it appears the pleader has only a moral claim or disappointed expectation, and cannot validly state a justiciable cause of action. But in application we find more of art than of science. How does a court, confronted with a defective pleading of nondescript appearance and uncertain ancestry, determine whether the pleading is susceptible of future domestication into the recognizable flock of justiciable causes of action? In final analysis, the court is required to look at the existing pleading and hazard its best judgment whether behind the words of the pleading anything of legal substance lies, whether on further revision the pleading can honestly state a cause of action. In this exercise it is logical to suppose that the more information a court has the more rational will be its judgment, that hence access to prior pleadings may help the court reach a more intelligent decision, just as access to the history of any particular problem may aid its solution.\\\"\\nAlthough plaintiffs here were not allowed an opportunity to amend their complaint to state a cause of action, they did not seek leave from the trial court to do so. Nor have they suggested to this court that they could amend to add facts necessary to support an inference that the defective notice provided by SoCal on November 14 was causally related to the damages suffered by plaintiffs when their utilities were terminated on November 15. We can only conclude from the record before us that plaintiffs could make no such allegations. Plaintiffs' initial complaint was verified, and the fundamental allegations remain unchanged, i.e., while SoCal may have been the instrumentality by which plaintiffs' utility services were terminated, the cause of that termination was the direction by SoCal's master customer, whether Simon Younger or others named in the complaint with him, to terminate those services.\\nUnder these circumstances, we conclude that the trial court did not abuse its discretion in sustaining SoCal's demurrer without leave to amend.\\nThe judgment is affirmed. Each party will bear his, her or its costs on appeal.\\nStone (W. A.), J., concurred.\\nFurther statutory references are to the Public Utilities Code unless otherwise indicated.\\nWe use the term \\\"master customer\\\" to mean either the named customer/subscriber of record controlling a master meter account or individually metered accounts billed to a single central customer.\\nSoCal abandoned its special demurrer on the ground that plaintiffs' theory of liability was uncertain. Since the only possible uncertainty in plaintiffs' amended complaint concerns So-Cal's justification for terminating utility services, an uncertainty essential to the cause of action itself, SoCal could rely upon a general demurrer to challenge the complaint. (Gonzales v. State of California (1977) 68 Cal.App.3d 621, 634 [137 Cal.Rptr. 681].)\\nCivil Code section 789.3, subdivision (a), prohibits a landlord, acting with the intent to terminate the occupancy of his tenants, from \\\"willfully causpng], directly or indirectly, the interruption or termination of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, telephone, elevator, or refrigeration, whether or not the utility service is under the control of the landlord.\\\" The statute provides for specified liquidated or punitive damages as well as actual compensatory damages.\"}"
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+"{\"id\": \"6043352\", \"name\": \"THE PEOPLE, Plaintiff and Respondent, v. WADE SCOTT SPANGLER et al., Defendants and Appellants\", \"name_abbreviation\": \"People v. Spangler\", \"decision_date\": \"1980-12-26\", \"docket_number\": \"Crim. No. 4796\", \"first_page\": \"1039\", \"last_page\": \"1048\", \"citations\": \"113 Cal. App. 3d 1039\", \"volume\": \"113\", \"reporter\": \"California Appellate Reports, Third Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-11T02:15:28.671655+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PEOPLE, Plaintiff and Respondent, v. WADE SCOTT SPANGLER et al., Defendants and Appellants.\", \"head_matter\": \"[Crim. No. 4796.\\nFifth Dist.\\nDec. 26, 1980.]\\nTHE PEOPLE, Plaintiff and Respondent, v. WADE SCOTT SPANGLER et al., Defendants and Appellants.\\nCounsel\\nBryan Kemnitzer and Quin Denvir, State Public Defender, under appointments by the Court of Appeal, and Antonia D. Radillo, Deputy State Public Defender, for Defendants and Appellants.\\nGeorge Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Gregory W. Baugher and Jana L. Tuton, Deputy Attorneys General, for Plaintiff and Respondent.\", \"word_count\": \"2873\", \"char_count\": \"17695\", \"text\": \"Opinion\\nFRANSON, Acting P. J.\\nDefendants appeal from judgments convicting them of four counts of armed robbery and one count of auto theft, contending that the trial and convictions were barred under the jeopardy doctrine and that the prosecution and sentences violated Penal Code section 654.\\nFacts\\nDefendants and a young woman acting in concert robbed a drugstore in Bakersfield on January 21, 1979. They held up the druggist and three clerks at gunpoint, taking about $700 in cash and about $700 worth of controlled drugs and drug paraphernalia. As they departed the drugstore they also stole a car belonging to the druggist.\\nOn the night of the following day the trio were arrested at a motel in Burbank on suspicion of dealing in controlled substances. Subsequently defendants were charged by information filed in the superior court in Los Angeles County with four counts of unlawful possession of controlled substances and four counts of unlawful possession of controlled substances for sale. A jury found them guilty on all counts. The trial court set aside the verdicts on the four counts of simple possession and entered judgments on the remaining verdicts, convicting defendants of the four counts of unlawful possession of controlled substances for sale. The court sentenced each defendant to the upper term of imprisonment on each count but stayed execution of sentence as to the second, third, and fourth counts pending completion of sentence on the first count, the Stays then to become permanent.\\nIn the meanwhile, a complaint had been filed in Kern County charging defendants with armed robbery and auto theft based on the events of January 21, 1979. Preliminary examination of defendants on the Kern County charges was held October 3, 1979, after defendants had been sentenced on the Los Angeles County charges of which they were convicted. Held to answer, defendants entered pleas of not guilty and former jeopardy. The trial court ruled against defendants on their pleas of former jeopardy and also on pretrial motions for dismissal of the charges on the grounds that prosecution was barred by Penal Code section 654.\\nJury trial resulted in guilty verdicts against defendants on all counts, including four counts of robbery and one count of auto theft, and findings against each defendant that he used a firearm within the meaning of Penal Code section 12022.5 as to one robbery count and that he was armed with a firearm within the meaning of Penal Code section 12022, subdivision (a), as to the other three robbery counts. The trial court sentenced each defendant to the upper term of imprisonment for the conviction of one count of robbery plus an enhancement of two years for the use of a firearm, and sentenced him to the upper term of five years for each of the other three robbery counts and the upper term of three years for the auto theft count, but suspended or stayed execution of the latter three sentences until completion of the sentence for the first robbery count, the suspension (or stay) to be permanent thereafter. The trial court added three additional orie-year enhancements to the prison sentence of defendant Rogers, for three prior felony convictions for which he served separate prison sentences within the meaning of Penal Code section 667.5, subdivision (b). The court ordered that the unstayed sentence of each defendant be served concurrently with the sentence he was serving in the Los Angeles County case.\\nAt least some and perhaps all of the controlled substances found in defendants' possession at the motel in Burbank and which figured in their convictions of possession for sale were obtained in the drugstore robbery in Bakersfield.\\nDefendants contend on appeal, as they did below, that the prosecution of the robbery charges in Kern County placed them twice in jeopardy for the same offenses of which they were earlier convicted in Los Angeles County, in violation of the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 15, of the California Constitution, as well as Penal Code section 1023, and subjected them to multiple prosecutions in violation of Penal Code section 654.\\nDefendants also contend the trial court erred in sentencing them by failing to give them good-time /work-time credits they earned during presentence custody.\\nDiscussion\\nDouble Jeopardy Issue\\nA similar claim of double jeopardy was made in In re Dennis B. (1976) 18 Cal.3d 687 [135 Cal.Rptr. 82, 557 P.2d 514], where the defendant was consecutively prosecuted in juvenile court proceedings for a traffic violation and vehicular manslaughter. Rejecting the claim of double jeopardy, the court there said: \\\"The double jeopardy proscription . protects persons from being consecutively charged with violation of the same law or violation of laws so related that conduct prohibited by one statute is necessarily included within conduct prohibited by the other.... [1\\u00cd] Applying this standard to the facts presented herein, we conclude that the double jeopardy prohibition has not been violated. The traffic violation and the vehicular manslaughter are separate of fenses not necessarily included within each other: Obviously one may violate Vehicle Code section 21658 without committing vehicular manslaughter, and vice versa.\\\" (18 Cal.3d at pp. 691-692, citations and fn. omitted.) Applying the same standard to the present case, we conclude that here also the double jeopardy prohibition has not been violated. The armed robbery of the drugstore and the unlawful possession of controlled substances for the purpose of sale are \\\"separate offenses not necessarily included within each other\\\"; obviously one may commit one offense without committing the other.\\nThe Penal Code Section 654 Issue\\nPenal Code section 654 provides: \\\"An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.\\\"\\nIt will be seen that section 654 is concerned with both multiple punishments and multiple prosecutions for the same act or omission.\\nA leading case interpreting Penal Code section 654 is Kellett v. Superior Court (1966) 63 Cal.2d 822 [48 Cal.Rptr. 366, 409 P.2d 206]. The petitioner in Kellett was arrested as he stood on a public sidewalk brandishing a pistol. He was charged with the misdemeanor of exhibiting a firearm in a threatening manner and also was separately charged with the felony of possession of a concealable weapon by an ex-convict. He pled guilty to the misdemeanor charge and was sentenced to a 90-day jail term. When the prosecution for the felony went forward, he sought a writ of prohibition to prevent trial. The Supreme Court in granting the writ stated, \\\"When, as here, the prosecution is or should be aware of more than one offense in which the s\\u00e1me act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offenses omitted if the initial proceedings culminate in either acquittal or conviction and sentence.\\\" (63 Cal.2d at p. 827, fn. omitted.)\\nDefendants argue that all of the offenses for which they were prosecuted in Kern County as well as those for which they were prosecuted in Los Angeles County were incident to a single objective, namely to engage in the selling of controlled substances, and therefore under Penal Code section 654 as interpreted in Kellett, their convictions and sentences in the Los Angeles County prosecution resulted in a bar to the subsequent prosecution in Kern County.\\nA similar contention was made by the defendant in People v. Bradford (1976) 17 Cal.3d 8, 13-17 [130 Cal.Rptr. 129, 549 P.2d 1225]. There the defendant and an accomplice robbed a bank in Ventura County and committed various other crimes in Ventura County as they were making their getaway. \\\"The chase ended in Los Angeles County where defendant was involved in a traffic accident. During the chase, defendant's accomplice fired several shots at [officers] of the Los Angeles County Sheriff's Department when they attempted to intercept the robbers at a point on Pacific Coast Highway within Los Angeles County. [H] Defendant was prosecuted and convicted in federal court of bank robbery, in Los Angeles County of two counts of assault with a deadly weapon upon a peace officer . ., and in Ventura County of assault with a deadly weapon upon a peace officer . by using a firearm, exhibiting a firearm ., and possession of a concealable firearm by an ex-felon.\\\" (Id., at p, 13.) Appealing from the Ventura County judgment, the defendant contended that the separate prosecutions in Los Angeles and Ventura Counties violated Penal Code section 654 as construed in Kellett. The Supreme Court held, however, that joinder of the Los Angeles and Ventura County prosecutions was precluded by Penal Code section 777, which provides in pertinent part: \\\"[E]xcept as otherwise provided by law the jurisdiction of every public offense is in any competent court within the jurisdictional territory of which it is committed.\\\" \\\"As applied to felonies triable in the superior court,\\\" the court pointed out, \\\"the 'jurisdictional territory' is the county, and the county in which the crime was committed is the proper venue, except where some other statute provides an alternative venue.\\\" (People v. Bradford, supra, at p. 14, citing Witkin, Cal. Criminal Procedure, p. 66.)\\nThe offenses charged against defendants in Kern County and of which they stand convicted were committed entirely in Kern County. Defendants could not have been prosecuted for these offenses in Los Angeles County unless they had for some reason sought a change of venue. (See Witkin, op. cit. supra, pp. 63-64.) Conversely, the crimes charged against defendants in Los Angeles County, and of which they were convicted there, were committed entirely in Los Angeles County and could not have been prosecuted in Kern County.\\nWe conclude, therefore, under the holding of People v. Bradford, supra, that the prosecution and convictions and sentencing of defendants in Los Angeles County for the crimes they committed there did not bar the subsequent prosecution and convictions of defendants in Kern County for the crimes they committed there.\\nA question we must still address is whether the prohibition of multiple punishments in Penal Code section 654 nevertheless applies and should have been taken into, account by the trial court in sentencing defendants.\\n\\\"Section 654 has been applied not only where there was but one 'act' in the ordinary sense . but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.\\\" (People v. Brown (1958) 49 Cal.2d 577, 591 [320 P.2d 5], citation and fn. omitted.) \\\"Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.\\\" (Neal v. State of California (1960) 55 Cal.2d 11, 19 [9 Cal.Rptr. 607, 357 P.2d 839].)\\nDefendants argue that the single object of the robbery was to obtain drugs for the purpose of sale, and therefore, applying the Brown-Neal test, Penal Code section 654 prohibits sentences for more than one crime. They cite in particular People v. Quinn (1964) 61 Cal.2d 551 [39 Cal.Rptr. 393, 393 P.2d 705], a case which is indeed strikingly similar to the present case on some of its facts. There, the defendant and an accomplice held up a pharmacy, taking cash and narcotics, escaping in a car stolen the previous night. When apprehended they still had the narcotics in their possession. They were charged with armed robbery, unlawful possession of narcotics, and car theft. The defendant was convicted of and sentenced for all three crimes. On appeal, the convictions were reversed for other error but the court addressed questions that might arise on a retrial, including the Penal Code section 654 question. Said Justice Traynor, speaking for the court: \\\"The trial court also erred in sentencing defendant to concurrent sentences for first degree robbery and possession of narcotics. Section 654 of the Penal Code proscribes double punishment of a criminal act that constitutes more than one crime, and concurrent sentences are double punishment.... The section applies not only when there is one act in the ordinary sense, but when there is a course of conduct that constitutes an indivisible transaction punishable under more than one statute.... In the present case, the theft and possession of the narcotics, the theft of the money, and the robbery were all part of an indivisible criminal transaction.... Accordingly, if on retrial defendant is convicted of both possession of narcotics and robbery, he may be sentenced only for first degree robbery, the more serious of the two offenses.... The theft of the automobile was a separate crime completed before the robbery was committed; if defendant is convicted thereof on retrial he may also be sentenced for that theft.\\\" (61 Cal.2d at pp. 555-556, citations omitted.)\\nAn important difference between the Quinn case and the present case, of course, is that here the defendants were convicted of not just possession of the drugs they obtained in the robbery but possession for sale. In Quinn, the elements of both crimes were complete when the robbery was completed. Here, the elements of the crime of unlawful possession of controlled substances for the purpose of sale were not complete with the robbery but included evidence of repackaging the drugs and other preparations for selling them, all taking place long after the robbery had been committed. Significantly in Quinn, the court recognized the separateness of the theft of the automobile, saying, \\\"The theft of the automobile was a separate crime completed before the robbery was committed; if defendant is convicted thereof on retrial he may also be sentenced for that theft.\\\" (Id., at p. 556.) Reference to this holding in Quinn was made in People v. Beamon (1973) 8 Cal.3d 625, 639 [105 Cal.Rptr. 681, 504 P.2d 905], where the court said, after discussing the Brown-Neal test and the case of In re Hayes (1969) 70 Cal.2d 604 [75 Cal.Rptr. 790, 451 P.2d 430], also involving a Penal Code section 654 question: \\\"This court has thus construed section 654 to be applicable to limit punishment for multiple convictions arising out of either an act or omission or a course of conduct deemed to be indivis ible in time, [footnote] in those instances wherein the accused entertained a principal objective to which other objectives, if any, were merely incidental.\\\" (8 Cal.3d at p. 639.) The indicated footnote states: \\\"It seems clear that a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. (See People v. Quinn, supra, 61 Cal.2d 551, 556; People v. Howell (1966) 245 Cal.App.2d 787-792...; see also In re Hayes, supra, 70 Cal.2d 604, 609 [75 Cal.Rptr. 790, 451 P.2d 430].)\\\" (Id., fn. 11.)\\nWe conclude that the crimes defendants committed January 21, 1979, in Bakersfield were separate from those they committed the next day in Burbank, and the two sets of crimes were not linked by an indivisible course of conduct which would bring Penal Code section 654 into play according to the authorities cited.\\nGood-time/Work-time Credits\\nDefendants also contend the sentencing judge failed to award them good-time/work-time credits earned during presentence custody. The Supreme Court's decision in People v. Sage (1980) 26 Cal.3d 498 [165 Cal.Rptr. 280, 611 P.2d 874], holds that equal protection compels such credits where earned.\\nThe judgments are affirmed. The Department of Corrections is directed to determine the presentence conduct credits to which each of the defendants is entitled upon his application for administrative determination of such credits.\\nHopper, J., and Hanson (P. D.), J., concurred.\\nA petition for a rehearing was denied January 23, 1981.\\nAlso, each offense requires proof of facts which the other does not. See In re Dennis B., supra, 18 Cal.3d 687, 691, footnote 1.\\nThe trial court did, as a matter of fact, take the prior sentences into account by ordering that the sentences for the Kern County convictions be served concurrently with the sentences defendants were then serving, i.e., the sentences for the Los Angeles County convictions. Concurrent sentences, however, do not cure an error of multiple punishment prohibited by Penal Code section 654. (In re Wright (1967) 65 Cal.2d 650, 652-655 [56 Cal.Rptr. 110, 422 P.2d 998].)\"}"
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+"{\"id\": \"974587\", \"name\": \"MARION MEHRTASH, Plaintiff and Appellant, v. ATA MEHRTASH et al., Defendants and Respondents\", \"name_abbreviation\": \"Mehrtash v. Mehrtash\", \"decision_date\": \"2001-10-24\", \"docket_number\": \"No. B146707\", \"first_page\": \"75\", \"last_page\": \"82\", \"citations\": \"93 Cal. App. 4th 75\", \"volume\": \"93\", \"reporter\": \"California Appellate Reports, Fourth Series\", \"court\": \"Court of Appeal of the State of California\", \"jurisdiction\": \"California\", \"last_updated\": \"2021-08-10T17:04:27.507934+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MARION MEHRTASH, Plaintiff and Appellant, v. ATA MEHRTASH et al., Defendants and Respondents.\", \"head_matter\": \"[No. B146707.\\nSecond Dist., Div. Four.\\nOct. 24, 2001.]\\nMARION MEHRTASH, Plaintiff and Appellant, v. ATA MEHRTASH et al., Defendants and Respondents.\\nCounsel\\nGary E. Snelson for Plaintiff and Appellant.\\nJohn F. Hendry for Defendants and Respondents.\", \"word_count\": \"2452\", \"char_count\": \"14821\", \"text\": \"Opinion\\nVOGEL (C. S.), P. J.\\nIntroduction\\nThis is an action by a creditor to set aside, as a fraud upon her, a conveyance of the debtor's home to his stepsons. After plaintiff presented her evidence at trial, the court, pursuant to Code of Civil Procedure section 631.8, granted judgment in favor of the defendants, because plaintiff failed to prove that the value of the property exceeded encumbrances and senior liens. We hold this was a proper basis for a judgment in favor of defendants; therefore, we affirm.\\nFactual and Procedural Background\\nPlaintiff Marion Mehrtash is the ex-wife of defendant Ata Mehrtash. Ata is currently married to defendant Firouzeh Mehrtash, who has two adult sons, defendants Abdol Majeed Ghaffari and Ardeshir Ghaffari.\\nThe goal of plaintiff's present action is to set aside Ata's quitclaim deed of his residence to Abdol Majeed and Ardeshir in April 1998, as a fraud upon plaintiff as a creditor of Ata for a money judgment for spousal support.\\nThe Property Transactions\\nDuring 1995-1997, Ata and Firouzeh lived in a leased house in Palos Verdes. Firouzeh desired to purchase the house as an investment for her sons. The house was purchased in January 1998. The price was $540,000. A downpayment of $33,500 was made by a series of checks signed by Firouzeh, Ata, and Abdol Majeed. The property was encumbered by a total of $510,000, consisting of a first trust deed bank loan for $283,500, and a second trust deed note to the seller for $226,500. According to Ata and Firouzeh, the price was actually $11,000 higher, consisting of a \\\"side\\\" third trust deed note to the seller, which Firouzeh had paid off by the time of trial.\\nAta, a medical doctor, was listed as the primary borrower on the application for the first trust deed bank loan, which stated that title was to be taken in the names of Ata, Abdol Majeed, and Ardeshir. Ata, Abdol Majeed, and Ardeshir signed the first and second trust deed notes. According to Ata and Abdol Majeed, Ata was on the application and the notes in order to help qualify for the loans, but they intended the property to be for Abdol Majeed and Ardeshir.\\nEscrow closed and title passed to Ata, Abdol Majeed, and Ardeshir in January 1998. Firouzeh had executed a quitclaim deed to Ata of any interest she might have in the property. Then in April 1998, Ata executed a quitclaim deed to Abdol Majeed and Ardeshir of any interest Ata might have in the property. This is the transfer that plaintiff seeks to set aside as a fraud upon her. The quitclaim deed was labeled a gift. Abdol Majeed and Ardeshir gave nothing of value for the quitclaim deed from Ata. Abdol Majeed and Ata testified the quitclaim was in accordance with the parties' understanding that the purchase of the property was always intended to be for Abdol Majeed and Ardeshir.\\nDespite the transfer of title to Abdol Majeed and Ardeshir, Ata and Firouzeh have been living in the house as their home, and Firouzeh has been making the payments on the loans, taxes, and maintenance. Ata and Firouzeh claimed the source of payments was separate income of Firouzeh; plaintiffs expert witness claimed the source of payments was Ata's medical practice. Abdol Majeed and Ardeshir do not live in the house and do not pay on the loans, taxes, and maintenance.\\nCreditors and Judgments\\nPlaintiff is attempting to enforce a money judgment against Ata for back spousal support. Apparently by a judgment entered in September 1992, Ata was ordered to pay spousal support to plaintiff. In November 1998, Ata was found in contempt for failure to pay spousal support. In August 2000, plaintiff obtained a writ of execution on a money judgment for support, in an amount over $238,000.\\nIn the trial of the present action, plaintiff attempted to show that Ata was insolvent at the time of the quitclaim deed of the Palos Verdes house to Abdol Majeed and Ardeshir. As part of her proof, plaintiff introduced evidence of judgments obtained by other creditors against Ata. Several of these were proved by abstracts of judgment that had been recorded in Los Angeles County by the other creditors in order to protect judgment liens in their favor. (Code Civ. Proc., \\u00a7 697.310.)\\nExhibit 1 was an abstract of judgment, issued on November 7, 1994, and recorded in Los Angeles County on November 18, 1994, of a judgment entered on October 11, 1994, in favor of MBNA America Bank, for $42,345.\\nExhibit 3 was an abstract of judgment, issued on August 16, 1994, and recorded in Los Angeles County on August 24, 1994, of a judgment entered on June 28, 1994, in favor of Pacific Heritage Bank, for $58,061.\\nPlaintiffs evidence of the judgment in her favor that she seeks to enforce was exhibit 10, a writ of execution issued by court order on August 14, 2000, in the amount of $238,122, to enforce a judgment entered on September 25, 1992. Plaintiff introduced no evidence that she recorded an abstract of the 1992 judgment in Los Angeles County.\\nAta is more than 65 years old. If he had title to his residence, its sale to enforce a money judgment would be subject to a homestead exemption of $125,000, as well as other liens and encumbrances. (Code Civ. Proc., \\u00a7 704.730, subd. (a)(3), 704.740, subd. (a), 704.800, subd. (a).)\\nTrial Court Proceedings\\nDefendants' trial brief filed October 10,2000, argued, among other points, that plaintiff was not entitled to set aside the quitclaim deed without proving that she as a creditor was defrauded and injured thereby. Defendants pointed out the amounts of the first and second trust deed encumbrances on the property, the abstracted judgments of other creditors, and Ata's potential homestead exemption. Defendants reiterated this point in their supplemental points and authorities filed October 16, 2000, and in oral argument to the trial court. Plaintiffs supplemental trial brief filed October 16, 2000, failed to respond directly to that issue. Plaintiff argued orally to the trial court that it was not necessary for her to prove there was any equity in the property.\\nThe trial court decided to grant judgment to defendants pursuant to Code of Civil Procedure section 631.8. Its statement of decision comments, \\\"At the time of the quitclaim deed, the ex spouse had not recorded her judgment. However, the plaintiff introduced evidence of other liabilities. The Court finds that plaintiff failed to introduce any evidence of the fair market value at the time of the transfer 75 days after the purchase . . . and plaintiff failed to show any evidence that the defendants' interest in the property with all of the trust deeds exceeded the net value of the trust deeds.\\\"\\nDiscussion\\nUnder some circumstances a creditor may sue to set aside a transfer of property by a debtor, where the transfer defrauds that creditor. (Civ. Code, \\u00a7 3439 et seq., the Uniform Fraudulent Transfer Act.) A well-established principle of the law of fraudulent transfers is, \\\"A transfer in fraud of creditors may be attacked only by one who is injured thereby. Mere intent to delay or defraud is not sufficient; injury to the creditor must be shown affirmatively. In other words, prejudice to the plaintiff is essential. It cannot be said that a creditor has been injured unless the transfer puts beyond [her] reach property [she] otherwise would be able to subject to the payment of [her] debt.\\\" (16 Cal.Jur.3d (1983 rev.) Creditors' Rights and Remedies, \\u00a7 430, p. 540, fns. omitted; Bennett v. Paulson (1935) 7 Cal.App.2d 120, 123 [45 P.2d 369]; Haskins v. Certified Escrow & Mtge. Co. (1950) 96 Cal.App.2d 688, 691 [216 P.2d 90]; 37 Am.Jur.2d (2001) Fraudulent Conveyances and Transfers, \\u00a7 157, p. 644; 37 C.J.S. (1997) Fraudulent Conveyances, \\u00a7 46, p. 579.)\\nPlaintiff contends this is an obsolete requirement that is no longer the law. She points out that it was once expressly stated in former Civil Code section 3441, which was repealed in 1939 upon adoption of the Uniform Fraudulent Conveyance Act. (Haskins v. Certified Escrow & Mtge. Co., supra, 96 Cal.App.2d at p. 691.) But Haskins itself goes on to state, \\\"We think the repeal of the section is not significant since it was merely declaratory of an established principle of equity.\\\" (Haskins, supra, at p. 691.) Contrary to plaintiffs contention, this concept remains implied by the current statutory language, which states that a transfer \\\"fraudulent as to a creditor\\\" may be set aside. (Civ. Code, \\u00a7 3439.04, 3439.05, italics added; A/S Kreditt-Finans v. Cia Venetico De Navegacion (E.D.Pa. 1983) 560 F.Supp. 705, 711, affd. (3d Cir. 1984) 729 F.2d 1446.) As stated in Haskins, this is a principle of equity: a plaintiff seeking the equitable relief of setting aside a transfer of property must show entitlement to relief and inadequacy of a remedy at law. (37 C.J.S., supra, Fraudulent Conveyances, \\u00a7 46, p. 579.) This requirement is also implied by another fundamental maxim of jurisprudence, \\\" '[t]he law neither does nor requires idle acts.' \\\" (Bennett v. Paulson, supra, 7 Cal.App.2d 120, 123; Civ. Code, \\u00a7 3532.) The principle is restated in the current legal encyclopedias, cited ante. It seldom needs restatement in case law, because ordinarily creditors do not bother to seek avoidance of debtors' conveyances without a clear prospect of profiting by the litigation. (A/S Kreditt-Finans v. Cia Venetico De Navegacion, supra, 560 F.Supp. at p. 711 & fn. 15.)\\nIn A/S Kreditt-Finans v. Cia Venetico De Navegacion, supra, 560 F. Supp. 705, the court held the creditor could not maintain an action to set aside a conveyance as fraudulent, where the mortgage debt owed to secured lenders exceeded the fair market value of the property and thus the complaining creditor could not have recovered anything on its debt even if the transaction were set aside and the property were sold to enforce the debt. (Id. at pp. 708, 710, 711-712 & fn. 15 [citing, among others, the California Haskins case, supra, 96 Cal.App.2d 688].) In Holthaus v. Parsons (1991) 238 Neb. 223 [469 N.W.2d 536], the court cited the California Haskins case and applied it on facts analogous to the present case. A creditor sought to set aside the debtor's transfer of his home. The home was worth $58,000. It was subject to a $24,000 mortgage and to two prior judgment liens of $10,000 and $47,000. The court concluded, \\\"it is obvious that appellee was not injured by the conveyance and therefore was not entitled to relief under the Uniform Fraudulent Conveyance Act.\\\" (Id. at p. 538.)\\nIn the present case, the evidence showed the property was heavily mortgaged. When it was purchased for $540,000 (or $551,000 if the testimony about a \\\"side\\\" deal with the seller is believed), it was subject to first and second trust deed encumbrances of $510,000. Then plaintiff's own evidence revealed at least two judgment liens of other creditors, for about $42,000 and $58,000 (total $100,000). These creditors recorded abstracts of judgment in 1994 and thereby obtained judgment liens on Ata's real property in Los Angeles County. (Code Civ. Proc., \\u00a7 697.310, 697.340.) In the absence of evidence that plaintiff recorded an abstract of judgment prior to them, they obtained a priority in time. (Code Civ. Proc., \\u00a7 697.380, subd. (c).) Plaintiff did not obtain her execution lien until 2000. (Code Civ. Proc., \\u00a7 697.710.) Even assuming the allegedly fraudulent conveyance were set aside and the property were hypothetically available to enforce plaintiffs money judgment, it could not be sold without a court order because it is Ata's dwelling, and could not be sold without a minimum bid equal to all encumbrances and senior liens plus the homestead exemption. (Code Civ. Proc., \\u00a7 704.800, subd. (a); Rourke v. Troy (1993) 17 Cal.App.4th 880, 885-886 [21 Cal.Rptr.2d 660].) Plaintiff produced no evidence that the value of the property could support any net recovery for her in the event the conveyance were set aside. The trial court was authorized to consider this a failure by plaintiff to prove an essential element of her case (that the allegedly fraudulent conveyance injured her), and therefore was authorized to grant judgment for defendants denying plaintiffs requested relief, pursuant to Code of Civil Procedure section 631.8.\\nPlaintiff does not claim on appeal that the evidence showed she was injured financially by the allegedly fraudulent conveyance; she only contends, erroneously, that she is not required to prove injury. Almost all of plaintiffs brief on appeal attacks a different issue. She points out that the trial court's statement of decision, following the sentence describing plaintiffs failure to prove the value of the property, concludes, \\\"Therefore, there was no intent to defraud the plaintiff.\\\" She contends this conclusion is wrong, because a creditor need not prove actual intent to defraud, but instead may rely on proof that the debtor did not receive reasonably equivalent value for the transfer and the debtor was insolvent. (Civ. Code, \\u00a7 3439.05.) We conclude that plaintiff is attacking a straw man. Even assuming that plaintiff proved the elements of a constructively fraudulent transfer, plaintiff failed to prove she was injured by it. Therefore the trial court properly granted judgment for defendants, and the court's comments concerning intent are not controlling. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19 [112 Cal.Rptr. 786, 520 P.2d 10].)\\nThis conclusion renders moot plaintiffs other contention that the trial court erred in sustaining a demurrer to plaintiffs cause of action for conspiracy, pleaded in conjunction with her cause of action to set aside the transfer as a fraud upon her as a creditor. \\\"Strictly speaking, . . . there is no separate tort of civil conspiracy, and there is no civil action for conspiracy to commit a recognized tort unless the wrongful act itself is committed and damage results therefrom.\\\" (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, \\u00a7 44, 45, pp. 107-108, italics omitted.) Because the trial court correctly granted judgment for defendants on the main cause of action, the conspiracy allegation is moot.\\nDisposition\\nThe judgment is affirmed.\\nEpstein, J., and Hastings, J., concurred.\\nSolely to avoid confusion and repetition of last names, we refer to the individual defendants by their first names.\\nFormer Civil Code section 3441 provided, \\\"A creditor can avoid the act or obligation of his debtor for fraud only where the fraud obstructs the enforcement, by legal process, of his right to take the property affected by the transfer or obligation.\\\" (Deering's Ann. Civ. Code (1931) \\u00a73441, p. 1084.)\"}"
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