CA Pub. Decisions

A jury found true a petition filed by the People to extend the commitment of defendant, Steven Moore, who had previously been adjudged not guilty by reason of insanity (Pen. Code, § 1026.5, subd. (b)(1)). Defendant contends that the trial court's comments about the reasonable doubt standard and its failure to instruct the jury that he had a right not to testify and a negative inference should not be drawn from his failure to testify require reversal of the jury's finding. We disagree and affirm. The facts adduced at the hearing on the petition are not relevant to this appeal.

A modification decision.

Plaintiff and respondent Patricia Behr sued defendant and appellant Thomas Redmond for damages arising from the alleged tortious transmission of genital herpes. By special verdict, the jury made findings favorable to Behr and found that she had suffered compensatory damages of $4,003,600, including $2.5 million for future medical expenses. In a separate trial, the jury found that Behr was entitled to punitive damages in the amount of $2.75 million.
On appeal, Redmond contends: (1) the evidence is insufficient to support a finding that Behr contracted the herpes virus from sexual contact with him prior to his disclosure of the disease, and that he cannot be liable for transmitting the disease after his disclosure; (2) the special verdict is fatally defective for failing to include findings as to the timing of Behr's infection, the existence of a special relationship between the parties for purposes of establishing negligent infliction of emotional distress, and any misrepresentation by Redmond; (3) the compensatory and punitive damages awards are excessive; and (4) the court erred in denying his motion to strike Behr's postjudgment request for expert witness fees.
We reject Redmond's argument concerning the sufficiency of the evidence as to his liability for transmission of herpes. We conclude he has waived his argument concerning the failure of the special verdict to include a finding regarding the timing of Behr's infection, and that his argument concerning the absence of a finding regarding a special relationship is without merit. However, we agree that the special verdict cannot support the judgment on Behr's cause of action for fraud by misrepresentation. We also agree with Redmond that the award of damages for future medical expenses is excessive; but reject his argument as to the award of punitive damages. Finally, we agree with Redmond that Behr is not entitled to recover her expert witness fees.

Plaintiff and respondent Patricia Behr sued defendant and appellant Thomas Redmond for damages arising from the alleged tortious transmission of genital herpes. By special verdict, the jury made findings favorable to Behr and found that she had suffered compensatory damages of $4,003,600, including $2.5 million for future medical expenses. In a separate trial, the jury found that Behr was entitled to punitive damages in the amount of $2.75 million.
On appeal, Redmond contends: (1) the evidence is insufficient to support a finding that Behr contracted the herpes virus from sexual contact with him prior to his disclosure of the disease, and that he cannot be liable for transmitting the disease after his disclosure; (2) the special verdict is fatally defective for failing to include findings as to the timing of Behr's infection, the existence of a special relationship between the parties for purposes of establishing negligent infliction of emotional distress, and any misrepresentation by Redmond; (3) the compensatory and punitive damages awards are excessive; and (4) the court erred in denying his motion to strike Behr's postjudgment request for expert witness fees.
We reject Redmond's argument concerning the sufficiency of the evidence as to his liability for transmission of herpes. We conclude he has waived his argument concerning the failure of the special verdict to include a finding regarding the timing of Behr's infection, and that his argument concerning the absence of a finding regarding a special relationship is without merit. However, we agree that the special verdict cannot support the judgment on Behr's cause of action for fraud by misrepresentation. We also agree with Redmond that the award of damages for future medical expenses is excessive; but reject his argument as to the award of punitive damages. Finally, we agree with Redmond that Behr is not entitled to recover her expert witness fees.

In a previous appeal by defendant Westminster Central, LLC (Westminster), we reversed a judgment for approximately $22 million in favor of plaintiff Krikorian Premiere Theaters, LLC (Krikorian). Although we affirmed the judgment with respect to Westminster's liability for breach of lease, we held that, under the lease's â€

In a previous appeal by defendant Westminster Central, LLC (Westminster), we reversed a judgment for approximately $22 million in favor of plaintiff Krikorian Premiere Theaters, LLC (Krikorian). Although we affirmed the judgment with respect to Westminster's liability for breach of lease, we held that, under the lease's â€

Sara D. appeals a juvenile court judgment terminating her parental rights to her sons, C.F. and G.F., and her daughter, N.F., and choosing adoption as the appropriate permanent plan. (Welf. & Inst. Code, § 366.26.)[1] Sara challenges the sufficiency of the evidence to support the court's finding that the beneficial parent-child relationship exception to adoption preference (§ 366.26, subd. (c)(1)(B)(i)) is inapplicable. We affirm the judgment.

On April 13, 2009, pursuant to a negotiated plea agreement with the San Diego District Attorney's Office, Phillip C. Nychay pleaded guilty to unlawfully possessing a usable amount of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a). He also admitted serving two of three prior prison terms alleged pursuant to Penal Code[2] section 667.5, subdivision (b). In return, the district attorney agreed to dismiss the balance of the complaint and to stipulate to a four-year prison sentence. It was further agreed that the four-year prison sentence would run concurrent to any parole violations.
Immediately upon accepting the plea agreement, the court sentenced Nychay to the low term of two years in prison for possession of a controlled substance and two consecutive one-year terms for the prior prison terms. In addition, Nychay was ordered to pay $800 in state restitution fines. Nychay received presentence custody credit of 50 days. A timely notice of appeal was filed.
Nychay argued on appeal that the trial court erred when it found it lacked discretion in setting restitution. The Attorney General agreed with Nychay. We agreed as well.
Indeed, on December 3, 2009, this court remanded Nychay's case for a new restitution hearing at which the trial court could exercise its discretion pursuant to section 1202.4, subdivisions (b) and (d). In all other respects, we affirmed the judgment. (Unpublished opinion D055289.)
On remand the trial court struck the previously imposed $800 fine and ordered the fine set at $200. At the hearing, Nychay also requested the court recalculate his section 4019 custody credits. The court denied his request.
Nychay appeals.

The beneficiary of medical services under the California Medical Assistance Program (Medi-Cal) is required to reimburse the Department of Health Care Services (the Department) for the costs of medical care from a recovery obtained in a tort action against a third party liable for the beneficiary's injuries. The Department's claim, however, "is limited to that portion of a settlement, judgment, or award that represents payment for medical expenses, or medical care, provided on behalf of the beneficiary." (Welf. & Inst. Code,[1] § 14124.76, subd. (a); Arkansas Department of Health and Human Services v. Ahlborn (2006) 547 U.S. 268, 278 (Ahlborn).) When a settlement of third party litigation is unallocated between categories of damages, such as medical costs, lost earnings, and pain and suffering, the trial court may determine the appropriate Medi-Cal lien amount by comparing the percentage of the settlement to the beneficiary's total damages, and applying that percentage to the past medical costs for which the Department seeks reimbursement. (Lopez v. DaimlerChrysler Corp. (2009) 179 Cal.App.4th 1373, 1378 (Lopez).)
The beneficiary here, Daniel Branson, obtained an unallocated partial settlement of his medical malpractice action, after which the Department demanded partial reimbursement for medical costs to date, and he complied. When Branson received an additional unallocated settlement, which fully resolved his case, the Department sought additional reimbursement. He brought a motion under section 14124.76, subdivision (a) for the court's determination of the appropriate amount of the total lien. Branson argued that given his overall damages, he had overpaid the Department by $250,729. The court agreed with his calculation, and ordered that he is not required to pay the Department any additional amount. The court, however, found it lacked authority to order the Department to refund the overpayment.

City of Coronado (the City) appeals a judgment in which the court determined the City, rather than Coronado Cays Homeowners Association (the Association),[1] is responsible for maintaining a berm that laterally supports bulkheads located on property within the Coronado Cays subdivision. The bulkheads are adjacent to and act as a retaining wall for a waterway that belongs to the City, over which the Association has an easement. The City contends the court erred by granting the Association declaratory relief as there was no actual controversy between the parties; misinterpreting the operative documents, a special use permit and an assessor's parcel map; and not including in the judgment certain information included in the statement of decision. We find all contentions lack merit and affirm the judgment.

City of Coronado (the City) appeals a judgment in which the court determined the City, rather than Coronado Cays Homeowners Association (the Association),[1] is responsible for maintaining a berm that laterally supports bulkheads located on property within the Coronado Cays subdivision. The bulkheads are adjacent to and act as a retaining wall for a waterway that belongs to the City, over which the Association has an easement. The City contends the court erred by granting the Association declaratory relief as there was no actual controversy between the parties; misinterpreting the operative documents, a special use permit and an assessor's parcel map; and not including in the judgment certain information included in the statement of decision. We find all contentions lack merit and affirm the judgment.

Allstate Insurance Company (Allstate) issued Kelly and Debbie Minich (the Minichs) a homeowner's insurance policy (Policy) that provided that Allstate would pay the Minichs the "actual cash value" of their house, in an amount not to exceed the "limit of liability shown on the Policy Declarations," if the house were damaged or destroyed.[1] The "Building Structure Reimbursement" provision of the Policy provided that Allstate would pay the Minichs an amount in excess of the actual cash value if the Minichs were to "repair, rebuild or replace" their house. An endorsement to the Policy modified the "Building Structure Reimbursement" provision to state that this additional payment would not exceed "150% of the limit of liability."
After the Minichs' house was destroyed by a fire, Allstate paid the Minichs $129,590--the limit of liability as shown on the Policy's declarations, minus a $250 deductible. However, Allstate refused to pay the additional $64,920 provided for in the endorsement until the Minichs furnished Allstate with evidence that they were, in fact, rebuilding their house. Allstate paid the Minichs the additional $64,920 approximately 15 months after the fire, once the Minichs demonstrated to Allstate that they were rebuilding their house.
The Minichs filed this action against Allstate, claiming that Allstate should have paid them the $64,920 immediately after the fire.

Mark Augusta appeals an order denying his petition to compel arbitration of his legal malpractice action against Keehn & Associates and L. Scott Keehn (together Keehn). Augusta contends the trial court erred by finding he waived his right to arbitrate by unreasonably delaying in seeking arbitration, and by taking steps inconsistent with an intent to invoke arbitration, e.g., obtaining discovery from Keehn through court processes, which caused prejudice to him. We affirm the order as supported by substantial evidence.

Plaintiff Dan Clark Family Limited Partnership (Dan Clark) appeals from a judgment entered after the trial court sustained the defendants' demurrer to Dan Clark's third amended complaint, without leave to amend. The trial court concluded that Dan Clark's causes of action for conversion and claim and delivery were untimely under the three-year statute of limitations that applies to the claims.
On appeal, Dan Clark contends that the trial court erred in finding that the statute of limitations was not tolled pursuant to Code of Civil Procedure[1] section 351, which tolls the statute of limitations for the time period during which a defendant is out of California. The trial court concluded that application of section 351 to toll the limitations period for plaintiff's claims would violate the Commerce Clause of the United States Constitution.
We conclude that applying section 351 to toll the statute of limitations in this case would run afoul of the Commerce Clause because it would force a nonresident defendant to choose between remaining in the state for several years, or returning to his or her place of residence, thereby forfeiting the protections of the statute of limitations. Putting nonresident defendants to such a choice would discourage nonresidents from engaging in even a single commercial transaction in California. Because Dan Clark raises no other issues on appeal, we affirm the judgment of the trial court.