CA Pub. Decisions

Real Estate Commissioner improperly revoked broker's license pursuant to Business and Professions Code Sec. 490, which authorizes revocation where professional licensee is convicted of a crime "substantially related to the qualifications, functions, or duties" of profession, where misdemeanor battery conviction on which revocation was based did not involve moral turpitude.

Trial court correctly found that Department of Forestry & Fire Protection abused its discretion by approving a timber harvest plan where plan's cumulative impact analysis with regard to the issue of fog drip lacked any facts, statistics, reports, or studies supporting contention that decrease in fog drip from trees would not result in a decrease in the water supply; plan lacked cumulative impact analysis addressing impact of future housing development in harvest area, but housing development was a reasonably foreseeable consequence of proposed harvest; additional information about northern spotted owl that was added to plan during review process was sufficiently significant to merit notice and recirculation; and U.S. Fish and Wildlife Service had not approved project as required by department's own regulation.

Trial court correctly found that Department of Forestry & Fire Protection abused its discretion by approving a timber harvest plan where plan's cumulative impact analysis with regard to the issue of fog drip lacked any facts, statistics, reports, or studies supporting contention that decrease in fog drip from trees would not result in a decrease in the water supply; plan lacked cumulative impact analysis addressing impact of future housing development in harvest area, but housing development was a reasonably foreseeable consequence of proposed harvest; additional information about northern spotted owl that was added to plan during review process was sufficiently significant to merit notice and recirculation; and U.S. Fish and Wildlife Service had not approved project as required by department's own regulation.

Government Code Sec. 66452.6 (b)(1) under Subdivision Map Act limits any moratorium-related tolling of a tentative map's expiration to five years. Where developer's project was subject to multiple moratoria by city, expiration of developer's vesting tentative map was tolled only for five years rather than for multiple tolling periods. Developer's delivery to city engineer of a final map not conforming to requirements of vesting tentative map does not extend life of tentative map pursuant to Sec. 66452.6 (a)(1)'s provision that life of a tentative map is extended by 36 months upon filing of "a final map authorized by Section 66456.1"--which requires final map to be "in accordance with the approved or conditionally approved tentative map."

Government Code Sec. 66452.6 (b)(1) under Subdivision Map Act limits any moratorium-related tolling of a tentative map's expiration to five years. Where developer's project was subject to multiple moratoria by city, expiration of developer's vesting tentative map was tolled only for five years rather than for multiple tolling periods. Developer's delivery to city engineer of a final map not conforming to requirements of vesting tentative map does not extend life of tentative map pursuant to Sec. 66452.6 (a)(1)'s provision that life of a tentative map is extended by 36 months upon filing of "a final map authorized by Section 66456.1" which requires final map to be "in accordance with the approved or conditionally approved tentative map."

Department of Health Services is statutorily authorized to contract with private entity to administer AIDS drug program, and operation of program by such entity does not violate state constitution's civil service provisions since such operation is not a traditional function of the state civil service. AIDS drug formulary -- developed, maintained, and updated by DHS pursuant to statute -- is a regulation subject to Administrative Procedures Act. Manufacturer of delisted AIDS drug was not deprived of fundamental right and thus had no due process right to a trial like hearing on the delisting.

A modification decision.

In denying motion for mistrial based on alleged racial bias in exercise of peremptory challenges, it was proper for the trial court to require explanations for only two of the three prospective jurors who were the subject of the motion, where court did not find that there was a prima facie showing of bias as to the third prospective juror. Prosecutor's objectively verifiable mistake in excusing prospective juror, a result of erroneously attributing to that person information in the juror questionnaire of another venire member with the same surname, constituted a legitimate race - neutral explanation for challenge where court properly had accepted original explanation for challenge before prosecutor realized, and explained, that there had been a mistake. Trial court did not err in accepting prosecutor's explanation that prospective juror's body language suggested a desire to avoid jury service.

Public Resources Code Sec. 21177(b), which requires that a citizen objecting to a project under CEQA do so during public comment period or prior to the close of public hearing to retain standing to challenge the project in court, did not bar action where local agency did not hold a public hearing within the meaning of the statute but merely an informational meeting on a tentative agreement, the approval of which it did not consider to be an approval of a project within the meaning of CEQA, and where no notice of determination was issued following the meeting. Agreement for development of natural resource that was conditional on subsequent CEQA review did not itself constitute a "project" within the meaning of CEQA.

Under primary assumption of risk doctrine, skier assumes risk of injury resulting from collision with another skier, including an employee of ski resort, even if employee is violating company policies by skiing unsafely. Employee of ski resort did not act recklessly and thus did not increase risks inherent in sport so as to take case outside the primary assumption of risk doctrine where evidence showed that, at worst, employee skied fast and aggressively and was inattentive to plaintiff, who was skiing to his left and whom he did not see in time to avoid collision.

Because appellant's notice of appeal was untimely, the appeal must be dismissed. (See Cal. Rules of Court, rule 8.104(b); Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 ["The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal"]; accord, Freiberg v. City of Mission Viejo, supra, 33 Cal.App.4th at p. 1488 ["The time for appeal is absolutely jurisdictional"].)
Court dismiss as untimely this appeal by the Law Offices of Joseph W. Carcione, Jr. from a judgment upon a jury verdict in favor of Pacific Bell Directory.

Dismissal for failure to bring action to trial within five years was error under impracticability exception to statute where parties stipulated to multiple continuances due to illnesses of plaintiff and counsel, such continuances had a causal connection to the lack of trial within the five year period, and trial court failed to rule on whether plaintiff had exercised reasonable diligence throughout the five year period in seeking to bring the case to trial.

Division of Occupational Safety and Health is not required to prove lack of reasonable diligence by citee as an essential element of its prima facie case to establish a general violation of the California Occupational Safety and Health Act or regulations adopted under that act. Citee's claim on writ review that it exercised due diligence, even if supported by the evidence, could not establish that finding of violation was legally erroneous where citee failed to raise due diligence as an affirmative defense before the Cal/OSHA Appeals Board. Administrative hearing record established a lack of reasonable diligence by citee with respect to violation of regulation requiring certain measures to protect workers from danger of cave in during excavation where employee designated as "competent person" responsible for worker safety was aware of the excavation but did not measure it when work started despite rainy weather, which obviously could have affected the depth by loosening soil at the bottom of the trench, and such person apparently never measured the depth with a measuring device but merely estimated its depth prior to the day of the Cal/OSHA inspection.

Division of Occupational Safety and Health is not required to prove lack of reasonable diligence by citee as an essential element of its prima facie case to establish a general violation of the California Occupational Safety and Health Act or regulations adopted under that act. Citee's claim on writ review that it exercised due diligence, even if supported by the evidence, could not establish that finding of violation was legally erroneous where citee failed to raise due diligence as an affirmative defense before the Cal/OSHA Appeals Board. Administrative hearing record established a lack of reasonable diligence by citee with respect to violation of regulation requiring certain measures to protect workers from danger of cave in during excavation where employee designated as "competent person" responsible for worker safety was aware of the excavation but did not measure it when work started despite rainy weather, which obviously could have affected the depth by loosening soil at the bottom of the trench, and such person apparently never measured the depth with a measuring device but merely estimated its depth prior to the day of the Cal/OSHA inspection.