CA Pub. Decisions

A modification decision.

Provision in real estate purchase agreement disallowing attorney fees to a prevailing party who did not first attempt mediation before filing an action did not preclude award to defendants' attorneys in connection with cross complaint against plaintiff's real estate broker for interference with contractual relations.

Evidence that a decedent during his lifetime acknowledged an individual as his child to various people on various occasions is sufficient to establish a father child relationship for intestate succession purposes under Probate Code Sec. 6453(b)(2).

Plaintiff mobilehome purchasers, by sending to escrow company a copy of their letter to seller, detailing their complaints about structural defects in the mobilehome, adequately preserved their rights under Health and Safety Code Sec. 18035(f), which requires the escrow agent for a mobilehome sale to hold funds in escrow upon receiving written notice of a dispute between the parties to the escrow, even though the escrow instructions provided that escrow shall close when all conditions have been met, unless the escrow company receives written demand not to complete the escrow, and no such written demand was given.

Before pursuing refund, company was not required to pay proposed assessments in addition to its payment of all taxes that were due at time of filing refund action where company's protests against proposed assessments were still under consideration by Franchise Tax Board, rendering the assessments not final.

An attorney who succeeds in enforcing a workers' compensation award against an insurer that informally -- without instituting proceedings to terminate care - refuses to provide previously awarded medical care is entitled to fees under Labor Code Sec. 4607.

Notice to alleged father of proceeding at which his parental rights were terminated was statutorily inadequate where it was sent by first class mail, not registered mail, and did not include a copy of the petition or the Judicial Council notice of rights form required by statute. Denial of statutorily required notice was harmless under any standard where alleged father could not establish presumed father status because he was not married to child's mother, did not attempt to marry her, and could not have taken the child into his home since he was incarcerated just two days after the child was born and remained incarcerated until four months before the hearing.

Where insurer's group service agreement with county contained arbitration provisions, insurer was required by Health and Safety Code Sec. 1363.1 to make individualized disclosures concerning arbitration on the benefits election form that employees signed to enroll in the group health plan. Insurer's failure to make such disclosure rendered provision unenforceable.

Evidence at preliminary hearing was insufficient to support firearm use enhancement allegation attached to burglary charge where, though sufficient to show that defendant was armed with gun and intended to use it, it failed to show that he took any action with regard to gun, such as holding it or picking it up, aside from resting his hand over it.

Water Code Sec. 1525, which authorizes State Water Resources Control Board to impose annual fees on holders of water right permits and licenses and which does not limit such fees to the costs of regulation, does not on its face violate Proposition 13, but certain fees imposed under emergency regulation were unconstitutional as applied where annual fee payers were forced to subsidize significant costs of certain regulatory activities affecting other parties that were not required to pay the fees. Water Code Secs. 1540 and 1560, authorizing SWRCB to impose annual fees on persons and entities that contract for water from the U.S. Bureau of Reclamation, are not on their face preempted by federal law and do not violate equal protection or due process rights but violate the Supremacy Clause as applied by emergency regulations establishing formula that requires the federal contractors to pay for the entire amount of annual fees that would otherwise be imposed on the bureau.

Water Code Sec. 1525, which authorizes State Water Resources Control Board to impose annual fees on holders of water right permits and licenses and which does not limit such fees to the costs of regulation, does not on its face violate Proposition 13, but certain fees imposed under emergency regulation were unconstitutional as applied where annual fee payers were forced to subsidize significant costs of certain regulatory activities affecting other parties that were not required to pay the fees. Water Code Secs. 1540 and 1560, authorizing SWRCB to impose annual fees on persons and entities that contract for water from the U.S. Bureau of Reclamation, are not on their face preempted by federal law and do not violate equal protection or due process rights but violate the Supremacy Clause as applied by emergency regulations establishing formula that requires the federal contractors to pay for the entire amount of annual fees that would otherwise be imposed on the bureau.

Water Code Sec. 1525, which authorizes State Water Resources Control Board to impose annual fees on holders of water right permits and licenses and which does not limit such fees to the costs of regulation, does not on its face violate Proposition 13, but certain fees imposed under emergency regulation were unconstitutional as applied where annual fee payers were forced to subsidize significant costs of certain regulatory activities affecting other parties that were not required to pay the fees. Water Code Secs. 1540 and 1560, authorizing SWRCB to impose annual fees on persons and entities that contract for water from the U.S. Bureau of Reclamation, are not on their face preempted by federal law and do not violate equal protection or due process rights but violate the Supremacy Clause as applied by emergency regulations establishing formula that requires the federal contractors to pay for the entire amount of annual fees that would otherwise be imposed on the bureau.

Prosecutors' failure to disclose to defense tape-recorded interviews of two eyewitnesses denied defendant fair trial where there was no physical evidence linking defendant to murder; eyewitnesses were key in establishing his identity as the killer; tape - recording of one witness, victim's daughter, showed she was distracted during interview with prosecutor and equivocated as to identity of killer but settled on defendant after persistent questioning; and tape recording of adult eyewitness who had previously implicated defendant in the crime captured him insisting to police amid coercive interrogation that he was too high on drugs to recall anything about the event. Defendant's petition for habeas corpus was not mooted by his death where withheld tapes would have substantially changed how jurors perceived eyewitnesses, and jurors without knowledge of tapes convicted defendant of first degree murder and sentenced him to life in prison.

Prosecutors' failure to disclose to defense tape-recorded interviews of two eyewitnesses denied defendant fair trial where there was no physical evidence linking defendant to murder; eyewitnesses were key in establishing his identity as the killer; tape - recording of one witness, victim's daughter, showed she was distracted during interview with prosecutor and equivocated as to identity of killer but settled on defendant after persistent questioning; and tape recording of adult eyewitness who had previously implicated defendant in the crime captured him insisting to police amid coercive interrogation that he was too high on drugs to recall anything about the event. Defendant's petition for habeas corpus was not mooted by his death where withheld tapes would have substantially changed how jurors perceived eyewitnesses, and jurors without knowledge of tapes convicted defendant of first degree murder and sentenced him to life in prison.