CA Pub. Decisions

The City of Santa Barbara (City) approved the development of 25 single-family homes. The project was to be constructed by real parties in interest and appellants, Peak-Las Positas Partners and its managing partner, Mark Lee (Las Positas). The City and Las Positas wished to provide access to the development via construction of a concrete bridge and roadway, which would create a significant (Class I) environmental impact to Arroyo Burro creek.
Citizens Planning Association and Santa Barbara Urban Creeks Council (CPA) filed a petition for a writ of mandamus, requesting the trial court to enjoin the development. CPA alleged that voter approval was required before construction could begin. Pursuant to the City Charter, the City may not encumber parkland without a vote, and the bridge and roadway would cross over City-owned parkland. The trial court agreed, and issued a peremptory writ of mandate enjoining development until the matter could be placed on the ballot. We affirm.

Plaintiffs John Roe 58 and John Roe 61 appeal from the judgment of dismissal entered after the trial court sustained without leave to amend the demurrers of various Catholic Church entities to their first amended complaint. Because the statute of limitations on the plaintiffs' claims expired years before they sued, and because they did not sue in 2003 during the Legislature's one-year revival window for such claims, their claims again became time-barred and the trial court correctly sustained the demurrers on that ground.

Plaintiffs John Roe 58 and John Roe 61 appeal from the judgment of dismissal entered after the trial court sustained without leave to amend the demurrers of various Catholic Church entities to their first amended complaint. Because the statute of limitations on the plaintiffs' claims expired years before they sued, and because they did not sue in 2003 during the Legislature's one-year revival window for such claims, their claims again became time-barred and the trial court correctly sustained the demurrers on that ground.

Appellant Edward Fossum and his ex-wife, respondent Sandra Fossum purchased a house in 1994. To obtain the best interest rate, the property was purchased in Edward's[1] name alone, but later title was placed in both spouses' names. In 1998, the parties agreed to enter into the same arrangement in order to obtain a good interest rate on a loan to refinance their home. Sandra quitclaimed her interest in the property to Edward, but he never restored Sandra's name to title. Following trial in this action, the trial court determined the house was community property. Edward contends that ruling was in error. We affirm.
Prior to the parties' separation, Sandra took a cash advance on a credit card of $24,000, but never disclosed the transaction to Edward. The trial court found Sandra had breached her statutory fiduciary duty to her spouse. (Fam. Code, § 721, subd. (b).)[2] Edward contends the trial court erred when it refused to award him attorney fees, which are mandated under section 1101, subdivision (g), for Sandra's fiduciary violation. On this point, we conclude Edward is correct.

This appeal requires an interpretation of the Sales and Use Tax Law. (Rev. & Tax. Code, § 6001 et seq.)[1] Nortel Networks Inc. sells telephone switching equipment in California. Income from switch hardware sales is indisputably taxable by the State of California. The question is whether sales tax is imposed on the software that Nortel licenses to operate the switching equipment. The State Board of Equalization (the Board) determined that Nortel owes sales tax on software it licensed between January 1994 and December 1997. Nortel paid the tax then sued for a refund.
We conclude that the software licensed by Nortel is exempt from sales tax under the Technology Transfer Agreement (TTA) statutes because it (1) is copyrighted, (2) contains patented processes, and (3) enables the licensee to copy the software, and to make and sell products--telephone calls--embodying the patents and copyright. (§§ 6011, subd. (c)(10)(D), 6012, subd. (c)(10)(D).) The Board's attempt to limit the scope of the TTA statutes by excluding prewritten computer programs is an invalid exercise of its regulatory power. The TTA statutes encompass â€

Plaintiff Richard Schoenfeld is currently incarcerated for crimes he committed approximately 35 years ago. On October 30, 2008, the Board of Parole Hearings (Board) found him suitable for parole. On August 14, 2009, at a hearing to calculate his release date under applicable indeterminate sentence law (ISL) regulations, the Board panel stated its disagreement with the 2008 suitability finding and ordered a rescission hearing. It did not calculate an ISL release date. Schoenfeld filed a petition for a writ of ordinary mandamus in superior court challenging the setting of a rescission hearing. He appeals from the judgment denying his petition. As he did below, Schoenfeld contends the 2008 suitability finding was â€

This case arises from the tragic and senseless killings of Anthony Bologna and his sons Michael and Matthew, who were stopped in traffic in San Francisco when Edwin Ramos, an illegal immigrant, allegedly shot and killed them. Plaintiffs Danielle, Andrew, and Francesca Bologna are decedents' survivors and next of kin, and appeal from a judgment entered after the trial court sustained the demurrer of defendants the City and County of San Francisco, Gavin Newsom, Heather Fong, and William Sifferman (jointly, the City) without leave to amend. The narrow question posed in this appeal is whether the surviving family members can proceed in tort against the City under a theory that San Francisco's policy to provide sanctuary to illegal immigrants was a legal cause of decedents' murders because it shielded Ramos from deportation in violation of state and federal statutes. We conclude, as did the trial court, that the alleged breaches of those statutes support neither a legally viable claim of negligence per se under Evidence Code section 669 nor breach of mandatory duties under Government Code section 815.6. We therefore affirm the judgment.

In response to a paternity action initiated by T.P., T.W. filed a petition under Family Code section 7802[1] to free her child from the custody and control of T.P., the admitted biological father.[2] The trial court ruled Mother had no standing to commence such a proceeding and entered a judgment denying her petition.
Section 7841, subdivision (a) permits an â€

Appellant Jose T. appeals from a jurisdictional and dispositional order in a Welfare and Institutions Code section 602 proceeding declaring wardship and committing him to the Division of Juvenile Justice (DJJ).[1] Appellant contends that the juvenile court abused its discretion by automatically imposing a suspended DJJ commitment. Appellant also argues the imposition of this sentence was improper because the court did not consider the appropriateness of less restrictive alternative placements or whether the placement would benefit him. Furthermore, appellant argues that his commitment order should be remanded to the juvenile court for it to determine whether he needs an individualized education plan (IEP). Lastly, appellant contends that his DJJ commitment should be modified in order to accurately reflect previous custody credits and to correct a clerical error.
We conclude that the juvenile court automatically, and erroneously, imposed a previously suspended DJJ commitment. Accordingly, we vacate the commitment, remand, and direct the lower court to evaluate the appropriate placement for appellant, including whether to impose the previously suspended DJJ commitment, based upon current factors and circumstances.[2]

The defendant in these consolidated class actions appeals from an order denying its motion to disqualify the attorneys for parties who have objected to the proposed settlement agreement in the first of these cases and are the plaintiffs in the second action in which a class has not yet been certified. We agree with the trial court that the filing of the second action has not created a conflict of interest requiring counsel's disqualification.

Plaintiff Perri Mink appeals the orders of the trial court sustaining without leave to amend the demurrers of defendants Encina Veterinary Clinic, Inc., Roger Johnson, Peter Nurre, Kathy Shuttlesworth, and Angela Linvill (collectively referred to as Encina), and Kevin W. Bissonnette and Mobile Animal Surgery Services (collectively referred to as Bissonnette). The court sustained the demurrers on the grounds that her fourth amended complaint fails to adequately state a cause of action and includes claims that are barred by the statute of limitations. We affirm the court's orders and the judgments of dismissal.

Appellant, Walter Alvarado, challenges the denial of his motion to suppress following his arrest at a DUI checkpoint. He had been charged with driving under the influence and driving with a blood alcohol level in excess of 0.08%.
The issue before us is whether the People sustained their burden of proof in establishing the factors under Ingersoll v. Palmer (1987) 43 Cal.3d 1321 (Ingersoll). That case lists the factors governing whether a DUI checkpoint is operated in compliance with the Fourth Amendment of the United States Constitution. (People v. Banks (1993) 6 Cal.4th 926, 934 (Banks).)
While we only follow established law here, we write to address what appear to be repeated difficulties encountered by the People in making the record required to establish the legitimacy of these checkpoints.

Defendant Barbara Cosgriff Overland appeals her conviction for failing to be properly restrained by a safety belt (Veh. Code, § 27315, subd. (d)(1)),[1] on the ground that wearing only a lap belt without the shoulder harness is not a violation of the statute. We reject her contention and accordingly affirm the judgment.

On March 13, 2009, a notice to appear was issued to appellant pursuant to the automated traffic enforcement statutes (Veh. Code, §§ 21455.5-21455.7), alleging she failed to stop at a red signal light located at the intersection of Centinela Avenue and Beach Avenue in the City of Inglewood. Following a court trial wherein photographic evidence obtained from an automated traffic enforcement system (ATES) was admitted, appellant was convicted of failing to stop at a red signal light (Veh. Code, § 21453, subd. (a)).
Appellant presents the following contentions: (1) the photographs depicting the traffic violation were inadmissible because no foundation was established that the photographs were a reasonable representation of what they were alleged to portray, and they constituted hearsay; (2) the yellow light interval of the traffic light did not conform to the requirements of Vehicle Code section 21455.7; (3) the prosecution's use of photographic evidence violated appellant's Sixth Amendment right to confront witnesses; and (4) the prosecution failed to prove appellant was the driver depicted in the photographs.