CA Pub. Decisions

Education Code Sec. 56366.6(a) and (b) and California Code of Regulations, Title 5, Sec. 3068, which allow government to deny, revoke, or suspend a nonpublic, nonsectarian school's certification without a predetermination hearing. This Code does not, on their face, violate such schools' Fourteenth Amendment due process rights where financial stability of a nonpublic, nonsectarian school providing educational services to disabled children is a serious matter; there is little risk of erroneous decisionmaking because statute affords schools opportunity for postdecision hearing; and government has compelling interest in insuring that schools charged with protecting disabled children are operated in safe and lawful fashion. Statutes governing certification suspension and revocation procedures for nonpublic, nonsectarian schools are not subject to requirements for emergency administrative action specified in Government Code Sec. 11460.10 et seq. Where second amended complaint filed by particular nonpublic, nonsectarian school did not specifically allege how government applied or is applying Education Code Sec. 56366.6(a) and (b) and California Code of Regulations, Title 5, Sec. 3068 discriminatorily to it, school did not have valid claim that law was unconstitutional as applied and trial court properly dismissed suit.

A modification decision.

Where defendant's conviction for practicing medicine without a license was reversed by court of appeal for lack of evidence based on its finding that defendant had a valid medical license at all relevant times and thus could not possibly have been guilty of practicing medicine without a license, trial court violated defendant's equal protection rights when it denied defendant's request under Penal Code Sec. 851.5 for a finding of factual innocence, which would allow destruction of arrest records.

During voir dire of prospective jurors in criminal case, it was not error for judge to tell them that jurors have no legal authority to engage in jury nullification and to solicit their assurances that, if chosen to serve, they would follow the law as stated to them by the court and not substitute their own views of what the law should be.

Trial court did not err in its instructions to jury regarding intent requirement for attempted murder conviction where court made clear that defendant was charged with attempted murder of four separate individuals, fully instructed jury concerning elements of attempted murder including an element of crime is that defendant harbored specific intent to unlawfully kill another human being, and did not instruct jury it could find defendant guilty of attempted murder of one person based on finding he intended to kill a different person. Court was not required to instruct jury that to find defendant guilty of a count of attempted murder, jury must find he had specific intent to kill person named as victim in that count. Defense counsel's decision to allow his case to be burdened with establishing alibi defense and his failure to object to prosecutor calling defendant a thief, where defendant had already admitted to being a thief, did not amount to ineffective assistance of counsel. Defense counsel was prejudicially ineffective in failing to object to prosecutor's misstatement of law as to intent required for attempted murder conviction where misstatement allowed jury to find defendant guilty of multiple counts of attempted murder based on mistaken impression that defendant's act of firing indiscriminately in direction of a group of men made him guilty of attempting to kill all of them.

Trial court did not err in its instructions to jury regarding intent requirement for attempted murder conviction where court made clear that defendant was charged with attempted murder of four separate individuals, fully instructed jury concerning elements of attempted murder including an element of crime is that defendant harbored specific intent to unlawfully kill another human being, and did not instruct jury it could find defendant guilty of attempted murder of one person based on finding he intended to kill a different person. Court was not required to instruct jury that to find defendant guilty of a count of attempted murder, jury must find he had specific intent to kill person named as victim in that count. Defense counsel's decision to allow his case to be burdened with establishing alibi defense and his failure to object to prosecutor calling defendant a thief, where defendant had already admitted to being a thief, did not amount to ineffective assistance of counsel. Defense counsel was prejudicially ineffective in failing to object to prosecutor's misstatement of law as to intent required for attempted murder conviction where misstatement allowed jury to find defendant guilty of multiple counts of attempted murder based on mistaken impression that defendant's act of firing indiscriminately in direction of a group of men made him guilty of attempting to kill all of them.

An action seeking to enjoin practice of Atlanta branch of nationwide brokerage firm--which has numerous offices and does extensive business in California--of recording telephone calls made to and from California clients without their knowledge or consent and seeking to recover damages for past recordings--where California law prohibits recording of a telephone conversation without the consent of all parties to the conversation whereas Georgia law allows recording of a telephone conversation where one party to conversation consents--California law should apply with respect to injunctive relief because failure to apply California law would impair California's interest in protecting degree of privacy afforded to California residents by California law more severely than application of California law would impair any interests of the state of Georgia; Georgia law should apply with respect to the request for damages for calls recorded in past because Georgia's interest would be more severely impaired were monetary liability to be imposed for such past conduct.

An action seeking to enjoin practice of Atlanta branch of nationwide brokerage firm--which has numerous offices and does extensive business in California--of recording telephone calls made to and from California clients without their knowledge or consent and seeking to recover damages for past recordings--where California law prohibits recording of a telephone conversation without the consent of all parties to the conversation whereas Georgia law allows recording of a telephone conversation where one party to conversation consents--California law should apply with respect to injunctive relief because failure to apply California law would impair California's interest in protecting degree of privacy afforded to California residents by California law more severely than application of California law would impair any interests of the state of Georgia; Georgia law should apply with respect to the request for damages for calls recorded in past because Georgia's interest would be more severely impaired were monetary liability to be imposed for such past conduct.

In action seeking to enjoin practice of Atlanta branch of nationwide brokerage firm--which has numerous offices and does extensive business in California--of recording telephone calls made to and from California clients without their knowledge or consent and seeking to recover damages for past recordings--where California law prohibits recording of a telephone conversation without the consent of all parties to the conversation whereas Georgia law allows recording of a telephone conversation where one party to conversation consents--California law should apply with respect to injunctive relief because failure to apply California law would impair California's interest in protecting degree of privacy afforded to California residents by California law more severely than application of California law would impair any interests of the state of Georgia; Georgia law should apply with respect to the request for damages for calls recorded in past because Georgia's interest would be more severely impaired were monetary liability to be imposed for such past conduct.

Arbitration conducted pursuant to Insurance Code Sec. 11580.2 to determine coverage for damages caused by uninsured motorist is an arbitration within meaning of and subject to Code of Civil Procedure Sec. 998, which provides that party who rejected a settlement offer that is later exceeded by ultimate judgment must bear costs other party incurred in making offer. Insurance Code Sec. 11580.2(p)(4), which states insurer's maximum liability to insured "shall not exceed the insured's underinsured motorist coverage limits...," does not preclude insured from recovering costs under Code of Civil Procedure Sec. 998 where costs, when added to arbitration award, would exceed policy's coverage limits. Under Civil Code Sec. 3291, which allows plaintiff in personal injury action to recover prejudgment interest where amount of ultimate judgment is less than plaintiff's rejected settlement offer, prejudgment interest is not available to an insured who sues insurance company to recover policy benefits even if purpose of recovery is to compensate for personal injury incurred in accident. Where ultimate judgment arising from uninsured motorist arbitration exceeds amount of plaintiff's rejected settlement offer, award of costs to plaintiff pursuant to Code of Civil Procedure Sec. 998 may include deposition and exhibit preparation expenses in addition to expert witness fees.

Arbitration conducted pursuant to Insurance Code Sec. 11580.2 to determine coverage for damages caused by an uninsured motorist is an arbitration within meaning of and subject to Code of Civil Procedure Sec. 998. The Code provides that party who rejected a settlement offer that is later exceeded by ultimate judgment must bear costs other party incurred in making offer. Insurance Code Sec. 11580.2(p)(4), which states insurer's maximum liability to insured "shall not exceed the insured's underinsured motorist coverage limits...", does not preclude the insured from recovering costs under Code of Civil Procedure Sec. 998. Costs, when added to arbitration award, would exceed policy's coverage limits. Under Civil Code Sec. 3291, which allows plaintiff in personal injury action to recover prejudgment interest where amount of ultimate judgment is less than plaintiff's rejected settlement offer. The prejudgment interest is not available to an insured who sues an insurance company to recover policy benefits even if purpose of recovery is to compensate for personal injury incurred in accident. Where ultimate judgment arising from uninsured motorist arbitration exceeds amount of plaintiff's rejected settlement offer, award of costs to plaintiff pursuant to Code of Civil Procedure Sec. 998 may include deposition and exhibit preparation expenses in addition to expert witness fees.

Judicial estoppel does bar state court action on claim simply because claim was not included as asset in plaintiff's previous bankruptcy filing. Collateral estoppel does not bar defense by individual where default judgment was obtained against his no-asset company.

Judicial estoppel does bar state court action on claim simply because claim was not included as asset in plaintiff's previous bankruptcy filing. Collateral estoppel does not bar defense by individual where default judgment was obtained against his no-asset company.

Judicial estoppel does bar state court action on claim simply because claim was not included as asset in plaintiff's previous bankruptcy filing. Collateral estoppel does not bar defense by individual where default judgment was obtained against his no-asset company.