CA Pub. Decisions

Where attorney for plaintiff failed to appear for mandatory settlement conference, then plaintiff voluntarily dismissed action without prejudice prior to scheduled hearing on order to show cause re "Dismissal and/or sanctions," order vacating the voluntary dismissal and dismissing with prejudice was in excess of court's authority as it violated plaintiff's absolute right to dismiss the action without prejudice at any time prior to the commencement of trial. Discretionary dismissals for lack of prosecution under two year statute are without prejudice.

Parent assessed liability pursuant to Welfare and Institutions Code Sec. 730.7 which permits a parent or guardian to be held jointly and severally liable, within certain limits, for restitution that minor is ordered by juvenile court to pay has a right of appeal. Acceptance by victim of a payment from parent's insurer in full release of all claims against parent and child precludes any Sec. 730.7 restitution liability on the part of the parent, but does not release child from liability under Sec. 730.6, which requires payment of "full restitution" by juvenile offenders.

In opposing an anti SLAPP motion against its defamation claim, organization failed to demonstrate a probability of showing by clear and convincing evidence that challenged statement, while false, was made with "actual malice" with the knowledge that it was false or with serious subjective doubt as to its truthfulness where it did not show that the speaker's purported conversation with the alleged source of the published information was fabricated as opposed to simply misunderstood, that he doubted the reliability of his sources, or that there was a connection between speaker's ill will toward organization and his belief about the truth of his publication.

In opposing an anti-SLAPP motion against its defamation claim, organization failed to demonstrate a probability of showing by clear and convincing evidence that challenged statement, while false, was made with "actual malice" with the knowledge that it was false or with serious subjective doubt as to its truthfulness where it did not show that the speaker's purported conversation with the alleged source of the published information was fabricated as opposed to simply misunderstood, that he doubted the reliability of his sources, or that there was a connection between speaker's ill will toward organization and his belief about the truth of his publication.

Joinder of charges under Penal Code Sec. 790.1, which provides that special circumstances murder charges arising in different counties may be tried together in any of those counties if the crimes were "connected together in their commission," is procedural and may be ordered in cases where the crimes occurred before that section was enacted. Joinder of five murder charges violated due process where two of the murders were factually dissimilar to the other three and involved "insurmountable" DNA evidence not applicable to the other crimes.

Joinder of charges under Penal Code Sec. 790.1, which provides that special circumstances murder charges arising in different counties may be tried together in any of those counties if the crimes were "connected together in their commission," is procedural and may be ordered in cases where the crimes occurred before that section was enacted. Joinder of five murder charges violated due process where two of the murders were factually dissimilar to the other three and involved "insurmountable" DNA evidence not applicable to the other crimes.

City did not abuse its discretion in issuing a grading permit without conducting an environmental review of the permit's impact pursuant to the California Environmental Quality Act where city concluded project was exempt from compliance with CEQA because it involved grading on land with a slope of less than 10 percent, and grading permit was consistent with conditional use permit, which contemplated the use of fill as part of the grading process, although no specific amount of fill was mentioned at that time. Issuance of grading permit with no conditions was a ministerial, not discretionary act, and thus exempt from CEQA compliance.

Industrial Welfare Commission Wage Order No. 16 2001, which sets forth wages, hours and working conditions for employees in the on site construction industry and other occupations consistent with the terms of the Eight Hour Day Restoration and Workplace Flexibility Act of 1999, including regulations regarding elections to adopt and repeal alternative workweek schedules, is a valid exercise of the authority granted the commission under the act. Trial court's finding that wage order was "unreasonable, arbitrary, capricious and unfair" was an abuse of discretion where order was recommended by the statutorily required two-thirds majority of wage board made up of labor and management representatives and was not found by IWC to be unsupported by substantial evidence.

Penal Code Sec. 290's requirement that adult convicted of oral copulation with a person under 16 register as a sex offender violates equal protection where such a requirement is not imposed on those who commit unlawful sexual intercourse with minors in otherwise identical circumstances.

State Farm Mutual Automobile Insurance Company, appellant, and Progressive Marathon Insurance Company, respondent, filed cross summary judgment motions on stipulated facts concerning the parties respective obligations under automobile liability insurance policies. The trial court granted summary judgment to Progressive. The appeal presents purely a question of law, namely, whether Insurance Code section 11580.9, subdivision (d) governs the parties allocation of responsibility for uninsured motorist coverage. We conclude that, while the statute does encompass uninsured motorist coverage, the trial court correctly ruled it did not apply in this case, and court affirm.

Neither Penal Code Sec. 1181(6) which states that "[w]hen the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed" nor Sec. 1260 which provides "a court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial" authorize the court of appeal, upon finding that insufficient evidence supports the judgment of conviction for one greater offense, to substitute convictions for two lesser included offenses proven by the evidence at trial.

Statements by defendant, a mental health professional and the author of a scholarly article, that plaintiff the subject of a controversial study of recovered memories of child sexual abuse engaged in "destructive behavior that I cannot reveal on advice of my attorney," and that plaintiff was in the Navy related to newsworthy events and could not be the subject of an action for disclosure of private facts. Statement that was made by defendant at a professional conference attended by other mental health professionals and was related to the subject of the conference was protected by statutory common interest privilege where plaintiff failed to present evidence that would reasonably support an inference that defendant acted with actual malice. For purposes of anti SLAPP motion, plaintiff was unlikely to prevail on claim that defendant's disclosure of the initials of plaintiff's first and last names at a deposition in an unrelated case constituted disclosure of private facts where plaintiff was not well enough known that the disclosure of her initials would have led to widespread identification, and plaintiff had, by the time of the deposition, publicly identified herself by full name as being the subject of the study in question. Plaintiff failed to establish a prima facie case of intrusion into private matters based upon defendant's collection and dissemination of information contained in court records in absence of showing that such records were of confidential juvenile matters. Plaintiff established prima facie case that defendant committed the tort of intrusion into private matters in obtaining personal information about plaintiff from plaintiff's former foster mother by intentionally misrepresenting defendant's relationship with mental health professional who had treated plaintiff as a child.

Statements by defendant, a mental health professional and the author of a scholarly article, that plaintiff the subject of a controversial study of recovered memories of child sexual abuse engaged in "destructive behavior that I cannot reveal on advice of my attorney," and that plaintiff was in the Navy related to newsworthy events and could not be the subject of an action for disclosure of private facts. Statement that was made by defendant at a professional conference attended by other mental health professionals and was related to the subject of the conference was protected by statutory common interest privilege where plaintiff failed to present evidence that would reasonably support an inference that defendant acted with actual malice. For purposes of anti SLAPP motion, plaintiff was unlikely to prevail on claim that defendant's disclosure of the initials of plaintiff's first and last names at a deposition in an unrelated case constituted disclosure of private facts where plaintiff was not well enough known that the disclosure of her initials would have led to widespread identification, and plaintiff had, by the time of the deposition, publicly identified herself by full name as being the subject of the study in question. Plaintiff failed to establish a prima facie case of intrusion into private matters based upon defendant's collection and dissemination of information contained in court records in absence of showing that such records were of confidential juvenile matters. Plaintiff established prima facie case that defendant committed the tort of intrusion into private matters in obtaining personal information about plaintiff from plaintiff's former foster mother by intentionally misrepresenting defendant's relationship with mental health professional who had treated plaintiff as a child.

Statements by defendant, a mental health professional and the author of a scholarly article, that plaintiff the subject of a controversial study of recovered memories of child sexual abuse engaged in "destructive behavior that I cannot reveal on advice of my attorney," and that plaintiff was in the Navy related to newsworthy events and could not be the subject of an action for disclosure of private facts. Statement that was made by defendant at a professional conference attended by other mental health professionals and was related to the subject of the conference was protected by statutory common interest privilege where plaintiff failed to present evidence that would reasonably support an inference that defendant acted with actual malice. For purposes of anti SLAPP motion, plaintiff was unlikely to prevail on claim that defendant's disclosure of the initials of plaintiff's first and last names at a deposition in an unrelated case constituted disclosure of private facts where plaintiff was not well enough known that the disclosure of her initials would have led to widespread identification, and plaintiff had, by the time of the deposition, publicly identified herself by full name as being the subject of the study in question. Plaintiff failed to establish a prima facie case of intrusion into private matters based upon defendant's collection and dissemination of information contained in court records in absence of showing that such records were of confidential juvenile matters. Plaintiff established prima facie case that defendant committed the tort of intrusion into private matters in obtaining personal information about plaintiff from plaintiff's former foster mother by intentionally misrepresenting defendant's relationship with mental health professional who had treated plaintiff as a child.