CA Pub. Decisions

Jury finding that employee's exclusion from management and planning meetings and unwarranted disciplinary probation was sufficiently injurious to his career to constitute an adverse employment action was supported by substantial evidence, including proof that plaintiff had been harassed on the basis of sexual orientation, that he had complained unsuccessfully about the harassment, and that the probation and exclusion from meetings were the culmination of a series of negative responses by supervisor to employee's apparently justified complaints about behavior of supervisor and another employee. Supervisor may be held liable for retaliation under Fair Employment and Housing Act. Grant of new trial constituted reversible error where based on unduly restrictive interpretation as to what constitutes an adverse employment action. Trial court order granting new trial on ground of excessive damages did not satisfy statutory requirement for statement of reasons where court merely concluded that the award "bears no relationship to the special damages or facts in this case" and "effectively amounts to an award of punitive damages."

A modification decision.

Trial judge erred in relieving pro per defendant's advisory counsel without defendant's consent where such action effectively reversed the order of another judge of same court appointing advisory counsel, and none of the exceptions to the rule against reconsideration by one judge of another judge's order applied. Appointment of advisory counsel is a matter of judicial discretion rather than a Sixth Amendment right, so procedural error in relieving such counsel requires reversal only upon an affirmative showing of prejudice. Order relieving advisory counsel was harmless where defendant claimed he would have made better legal arguments but could not show that court's rulings would have been different if he had, that his difficulties in presenting defense were a result of lack of advisory counsel rather than a result of his decision to represent himself, or that reliance on advice of advisory counsel would have overcome strength of prosecution's case. Trial court did not err in allowing defendant to represent himself once it ascertained that he understood the significance and consequences of choosing to do so. Trial court did not deny defendant's due process or Sixth Amendment rights by disallowing testimony by an eyewitness identification expert where cumulative corroborative effect of unequivocal eyewitness testimony, defendant's admissions, and additional corroborating evidence established validity of the identifications, and proposed expert testimony would thus have been of little probative value. Trial court violated defendant's right to due process by misinforming him regarding his eligibility for good behavior credits under a plea bargain offered by the prosecution; where record showed that defendant would have accepted the offer had he been accurately advised, prosecution would be required to either reinstate plea offer or have case set for retrial.

Trial judge erred in relieving pro per defendant's advisory counsel without defendant's consent where such action effectively reversed the order of another judge of same court appointing advisory counsel, and none of the exceptions to the rule against reconsideration by one judge of another judge's order applied. Appointment of advisory counsel is a matter of judicial discretion rather than a Sixth Amendment right, so procedural error in relieving such counsel requires reversal only upon an affirmative showing of prejudice. Order relieving advisory counsel was harmless where defendant claimed he would have made better legal arguments but could not show that court's rulings would have been different if he had, that his difficulties in presenting defense were a result of lack of advisory counsel rather than a result of his decision to represent himself, or that reliance on advice of advisory counsel would have overcome strength of prosecution's case. Trial court did not err in allowing defendant to represent himself once it ascertained that he understood the significance and consequences of choosing to do so. Trial court did not deny defendant's due process or Sixth Amendment rights by disallowing testimony by an eyewitness identification expert where cumulative corroborative effect of unequivocal eyewitness testimony, defendant's admissions, and additional corroborating evidence established validity of the identifications, and proposed expert testimony would thus have been of little probative value. Trial court violated defendant's right to due process by misinforming him regarding his eligibility for good behavior credits under a plea bargain offered by the prosecution; where record showed that defendant would have accepted the offer had he been accurately advised, prosecution would be required to either reinstate plea offer or have case set for retrial.

Trial judge erred in relieving pro per defendant's advisory counsel without defendant's consent where such action effectively reversed the order of another judge of same court appointing advisory counsel, and none of the exceptions to the rule against reconsideration by one judge of another judge's order applied. Appointment of advisory counsel is a matter of judicial discretion rather than a Sixth Amendment right, so procedural error in relieving such counsel requires reversal only upon an affirmative showing of prejudice. Order relieving advisory counsel was harmless where defendant claimed he would have made better legal arguments but could not show that court's rulings would have been different if he had, that his difficulties in presenting defense were a result of lack of advisory counsel rather than a result of his decision to represent himself, or that reliance on advice of advisory counsel would have overcome strength of prosecution's case. Trial court did not err in allowing defendant to represent himself once it ascertained that he understood the significance and consequences of choosing to do so. Trial court did not deny defendant's due process or Sixth Amendment rights by disallowing testimony by an eyewitness identification expert where cumulative corroborative effect of unequivocal eyewitness testimony, defendant's admissions, and additional corroborating evidence established validity of the identifications, and proposed expert testimony would thus have been of little probative value. Trial court violated defendant's right to due process by misinforming him regarding his eligibility for good behavior credits under a plea bargain offered by the prosecution; where record showed that defendant would have accepted the offer had he been accurately advised, prosecution would be required to either reinstate plea offer or have case set for retrial.

Defendant was denied his federal constitutional right to a jury verdict of guilty beyond a reasonable doubt where trial judge failed to instruct jury that the prosecution had the burden to prove each element of a charged offense beyond a reasonable doubt, even though judge had instructed prospective jurors on reasonable doubt standard of proof during jury selection, mentioned "reasonable doubt" in jury instructions on circumstantial evidence and defendant's choice not to testify at trial, and indirectly referred to reasonable doubt standard of proof in instructing jury as to various allegations and necessary special findings, and prosecutor discussed reasonable doubt standard of proof during her closing argument.

Defendant was denied his federal constitutional right to a jury verdict of guilty beyond a reasonable doubt where trial judge failed to instruct jury that the prosecution had the burden to prove each element of a charged offense beyond a reasonable doubt, even though judge had instructed prospective jurors on reasonable doubt standard of proof during jury selection, mentioned "reasonable doubt" in jury instructions on circumstantial evidence and defendant's choice not to testify at trial, and indirectly referred to reasonable doubt standard of proof in instructing jury as to various allegations and necessary special findings, and prosecutor discussed reasonable doubt standard of proof during her closing argument.

Exculpatory clauses in standardized forms used in real estate sales and purchases do not bar, on the ground that buyers cannot show justifiable reliance as a matter of law, a claim for intentional misrepresentation brought by buyers of real property against the sellers' brokers alleging the brokers intentionally misrepresented the property could be subdivided. Any lack of due diligence by buyers in conducting an investigation of the zoning and other laws restricting the development and use of the property also does not preclude as a matter of law the buyers' showing of justifiable reliance as an element of their claim for intentional misrepresentation.

In defendant's trial for sexual offenses, trial court did not have a duty under Apprendi to instruct jury to decide, along with the elements of the crimes charged, the applicability of a statutory provision extending the limitations period for filing the criminal complaint. Where the information alleges facts that avoid the statute of limitations bar, defendant must raise the limitations issue in the trial court or it is forfeited. Defendant was not prejudiced by counsel's failure to raise statute of limitations at trial where there were numerous victims with similar allegations, making it improbable that the passage of time or age difference would have led the jury to conclude allegations of earliest victim lacked clear and convincing corroboration. Battery is a lesser included offense of lewd acts.

Pendency of civil action against peace officer tolls one year period in which factually related departmental misconduct charges may be brought under Public Safety Officers Procedural Bill of Rights Act regardless of whether the civil action impacted on the misconduct investigation. Pendency of civil action does not toll one year period with respect to officers who were not named defendants in the action even if they could have been named by amendment as Doe defendants. Statutory provision tolling limitations period where the alleged misconduct is the subject of a multijurisdictional investigation does not apply where the only agencies involved are the police department and an independent civilian complaint investigating agency of the city and both are under jurisdiction of a single entity, such as city police commission, with power to require coordination of the investigations. Provision allowing reasonable tolling during investigation of multiple officers could not be applied given unreasonableness of delaying filing of charges against those officers during period that another officer was defendant in a civil suit based on incident involving all the officers. Delay of 10 months in bringing charges against officer cleared in civil suit was unreasonable and could not support tolling under multiple officer rule where time in which to charge other officers involved in incident had expired while suit was pending.

Pendency of civil action against peace officer tolls one year period in which factually related departmental misconduct charges may be brought under Public Safety Officers Procedural Bill of Rights Act regardless of whether the civil action impacted on the misconduct investigation. Pendency of civil action does not toll one year period with respect to officers who were not named defendants in the action even if they could have been named by amendment as Doe defendants. Statutory provision tolling limitations period where the alleged misconduct is the subject of a multijurisdictional investigation does not apply where the only agencies involved are the police department and an independent civilian complaint investigating agency of the city and both are under jurisdiction of a single entity, such as city police commission, with power to require coordination of the investigations. Provision allowing reasonable tolling during investigation of multiple officers could not be applied given unreasonableness of delaying filing of charges against those officers during period that another officer was defendant in a civil suit based on incident involving all the officers. Delay of 10 months in bringing charges against officer cleared in civil suit was unreasonable and could not support tolling under multiple-officer rule where time in which to charge other officers involved in incident had expired while suit was pending.

Child welfare agency seeking to remove child from foster home pursuant to a modification motion under Welfare and Institutions Code Sec. 388 need only prove by a preponderance of the evidence that there has been a change of circumstances and that proposed modification is in the child's best interests. Order removing child from foster home because another child living in the home was bitten by the family dog was subject to reversal where judge did not find that modification would be in child's best interests and did not find that change in circumstances had been proved by preponderance of the evidence, and where undisputed evidence established that the foster parents were willing to remove the dog and that the foster parents had otherwise been responsible.

Pendency of civil action against peace officer tolls one year period in which departmental misconduct charges may be brought under Public Safety Officers Procedural Bill of Rights Act regardless of whether the civil action impacted on the misconduct investigation. Filing of disciplinary charges more than 60 days from police chief's receipt of report of city's independent investigative agency in violation of city policy does not require dismissal of charges where timely under Bill of Rights Act and where city policy, unlike Bill of Rights Act, does not mandate dismissal as sanction for filing of untimely charges.

Employer's petition for reconsideration, which was filed and served more than 20 days from the date of service of the WCJ's original award but within 20 days of service of the amended award, was timely where the amendment increased the amount of benefits. While an amendment correcting a clerical error will not extend the time to move for reconsideration, a benefits increase cannot be so characterized, and WCAB's contrary ruling was unreasonable and not entitled to deference.