CA Pub. Decisions

Higinio Sanchez (husband) appeals the restraining order issued under the Domestic Violence Protection Act (DVPA) (Fam. Code,[1] § 6200 et seq.) protecting Maria Del Carmen Fernandez-Abin (wife) and their minor son and daughter. Husband claims the California court erred when it included the children within the scope of the restraining order and made various rulings regarding visitation and custody because, in an earlier proceeding before a different judge, that court had granted his motion brought under the Uniform Child Custody Jurisdiction and Enforcement Act (§ 3400 et seq. (UCCJEA)) to dismiss the children. In so doing, that court found it lacked emergency jurisdiction over the children because wife already had initiated divorce and custody proceedings in family court in Tijuana, Mexico, and thus the court in Mexico had exclusive and continuing jurisdiction over them.

Code of Civil Procedure section 1281.4[1] requires that a court impose a stay of litigation whenever that court, or another court, has ordered arbitration of a controversy that is an issue in the litigation. The court in which the litigation is pending is required to "stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies." (Ibid.)
In this case, the trial court lifted a stay of litigation that had been imposed pursuant to section 1281.4, on the ground that the plaintiffs could not afford to pay the costs associated with arbitration. We conclude that a party's inability to afford to pay the costs of arbitration is not a ground on which a trial court may lift a stay of litigation that was imposed pursuant to section 1281.4. Accordingly, court reverse the trial court's order lifting the stay.

Code of Civil Procedure section 1281.4[1] requires that a court impose a stay of litigation whenever that court, or another court, has ordered arbitration of a controversy that is an issue in the litigation. The court in which the litigation is pending is required to "stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies." (Ibid.)
In this case, the trial court lifted a stay of litigation that had been imposed pursuant to section 1281.4, on the ground that the plaintiffs could not afford to pay the costs associated with arbitration. We conclude that a party's inability to afford to pay the costs of arbitration is not a ground on which a trial court may lift a stay of litigation that was imposed pursuant to section 1281.4. Accordingly, court reverse the trial court's order lifting the stay.

In this dissolution action, we hold the family court exceeded its jurisdiction by modifying a pendente lite child and spousal support order in favor of the wife. The Legislature expressly intends that temporary support orders may not be modified retroactively. Further, the prospective modification of the order was improper because there was no pending order to show cause (OSC) or motion for modification as required. Court reverse certain orders with directions.

This case arose out of three bank robberies, one attempted bank robbery, and several related offenses committed over a period of three days (April 14, 21, and 22) in 2008.[1] A San Bernardino County jury found Melwatt Morehead, Jr. (Morehead) guilty of three counts of second degree robbery (counts 1, 3, & 4: Pen. Code,[2] § 211), one count of attempted second degree robbery (count 2: §§ 211, 664), four counts of assault with a deadly weapon or by means likely to produce great bodily injury upon a peace officer (counts 5-8: § 245, subd. (c)) one count of misdemeanor resisting a peace officer (count 9: § 148), and four counts of second degree commercial burglary (counts 10-13: § 459).
Following a bifurcated court trial, the court found true allegations that Morehead had been convicted of two prior strike offenses (§§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i)) and two serious felonies (§ 667, subd. (a)(1)), and had two prison priors (§ 667.5, subd. (b)). The court sentenced Morehead to a total prison term of 200 years to life plus 10 years.
Morehead appeals the judgment, contending (1) his four convictions of robbery and attempted robbery must be reversed because the court failed to sua sponte instruct the jury that the victims' fear must have been reasonable; (2) his four convictions of robbery and attempted robbery must be reversed because there was no substantial evidence of any reasonable fear on the part of the victims; and (3) the judgment and abstract of judgment must be corrected to give him 40 days of presentence conduct credits, for a total credit of 308 (not 268) days for time served.

The California Constitution (art. IX, § 9, subd. (a)) grants the Regents of the University of California (the Regents) " 'broad powers to organize and govern the university and limits the Legislature's power to regulate either the university or the [R]egents.' " (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 889.) The Regents "functions in some ways like an independent sovereign, retaining a degree of control over the terms and scope of its own liability." (Id. at p. 890.) The Legislature, however, may regulate the Regents's conduct in limited areas. "[G]eneral police power regulations governing private persons and corporations may be applied to the university," as well as regulations of "statewide concern not involving internal university affairs." (San Francisco Labor Council v. Regents of University of California (1980) 26 Cal.3d 785, 789 (San Francisco Labor Council).)
Courts have consistently held the Regents is exempt from statutes regulating the wages and benefits of employees and other workers, including those pertaining to prevailing wages, overtime pay, and indemnification for the cost of work uniforms and maintenance, on the ground those matters are internal affairs of the university that do not come within any of the exceptions to constitutional immunity. (San Francisco Labor Council, supra, 26 Cal.3d at p. 788; Regents of University of California v. Aubry (1996) 42 Cal.App.4th 579, 587-588 (Aubry); Kim v. Regents of University of California (2000) 80 Cal.App.4th 160, 167 (Kim); In re Work Uniform Cases (2005) 133 Cal.App.4th 328, 344.)
The question on appeal here, one of first impression, is peripherally related to these wage and benefit opinions: Is the Regents constitutionally immune from the reach of Labor Code section 218.5,[1] which mandates an award of attorney fees and costs to the prevailing party in an "action brought for the nonpayment of wages, fringe benefits, or . . . pension fund contributions"? We answer the question in favor of the Regents's autonomy, and accordingly, affirm a judgment denying Michael H. Goldbaum's motion for attorney fees in an action against the Regents to establish his eligibility for pension fund benefits.

Arthur Martin, under appointment by the Court of Appeal, for Defendant and Appellant.
Martin Manzo appeals a judgment following his jury conviction of first degree murder (Pen. Code, § 187, subd. (a)),[1] discharging a firearm at an occupied vehicle (§ 246), attempted murder (§§ 664, 187), and unlawfully possessing ammunition (§ 12316, subd. (b)(1)). On appeal, Manzo contends: (1) the trial court erred by admitting statements he made to police after he invoked his Fifth Amendment right to remain silent; (2) the trial court erred by admitting prior consistent statements made by the prosecution's primary percipient witness; (3) cumulative error deprived him of his due process right to a fair trial; and (4) the evidence is insufficient to support his section 246 conviction for discharging a firearm at an occupied vehicle.

Arthur Martin, under appointment by the Court of Appeal, for Defendant and Appellant.
Martin Manzo appeals a judgment following his jury conviction of first degree murder (Pen. Code, § 187, subd. (a)),[1] discharging a firearm at an occupied vehicle (§ 246), attempted murder (§§ 664, 187), and unlawfully possessing ammunition (§ 12316, subd. (b)(1)). On appeal, Manzo contends: (1) the trial court erred by admitting statements he made to police after he invoked his Fifth Amendment right to remain silent; (2) the trial court erred by admitting prior consistent statements made by the prosecution's primary percipient witness; (3) cumulative error deprived him of his due process right to a fair trial; and (4) the evidence is insufficient to support his section 246 conviction for discharging a firearm at an occupied vehicle.

A modification decision.

A jury convicted defendant Raymond Higgins of burglary of an inhabited dwelling, assault with a deadly weapon or by means likely to cause great bodily injury, and assault with a firearm. Higgins's convictions stem from an incident in which Higgins broke into a neighbor's home with two guns in his possession.
On appeal, Higgins challenges his convictions on a number of grounds, including: (1) that he was not provided with sufficient notice that the prosecutor was going to rely on false imprisonment as a predicate crime for the burglary charge; (2) that the trial court committed reversible error in failing to instruct the jury, sua sponte, on the defense of mistake of fact; (3) that the trial court committed reversible error in failing to instruct the jury, sua sponte, on a number of offenses that Higgins maintains are lesser included offenses to the charged crimes, including simple assault, misdemeanor false imprisonment, and brandishing a weapon; (4) that the prosecutor engaged in a number of instances of improper conduct, any one of which, he contends, requires reversal; and (5) that the prosecutor's pattern of improper conduct resulted in cumulative prejudice that requires reversal.
Court conclude that Higgins's convictions must be reversed on the ground that the prosecutor, Deputy District Attorney Christopher M. Lawson, engaged in a pervasive pattern of misconduct that rendered the trial fundamentally unfair.

A jury convicted defendant Raymond Higgins of burglary of an inhabited dwelling, assault with a deadly weapon or by means likely to cause great bodily injury, and assault with a firearm. Higgins's convictions stem from an incident in which Higgins broke into a neighbor's home with two guns in his possession.
On appeal, Higgins challenges his convictions on a number of grounds, including: (1) that he was not provided with sufficient notice that the prosecutor was going to rely on false imprisonment as a predicate crime for the burglary charge; (2) that the trial court committed reversible error in failing to instruct the jury, sua sponte, on the defense of mistake of fact; (3) that the trial court committed reversible error in failing to instruct the jury, sua sponte, on a number of offenses that Higgins maintains are lesser included offenses to the charged crimes, including simple assault, misdemeanor false imprisonment, and brandishing a weapon; (4) that the prosecutor engaged in a number of instances of improper conduct, any one of which, he contends, requires reversal; and (5) that the prosecutor's pattern of improper conduct resulted in cumulative prejudice that requires reversal.
Court conclude that Higgins's convictions must be reversed on the ground that the prosecutor, Deputy District Attorney Christopher M. Lawson, engaged in a pervasive pattern of misconduct that rendered the trial fundamentally unfair.

A jury convicted Wahid Yossuf Nazary of embezzlement by an employee (Pen. Code,[1] § 508; count 1) and grand theft by an employee (§ 487, subd. (b)(3); count 2). The trial court sentenced Nazary to two years in prison on count 1 and stayed the sentence on count 2 pursuant to section 654.
Nazary appeals, contending he cannot be convicted of both grand theft and embezzlement because they are the same crime, or alternatively, grand theft is a lesser included offense of embezzlement which must be stricken. He also claims the trial court committed prejudicial error in permitting the prosecutor to play a videotaped confrontation with him in his private workplace office in violation of section 632 and his privacy rights, in denying his motion to strike the testimony of a witness at trial, and in overruling hearsay objections to certain receipts admitted into evidence. Nazary finally asserts the cumulative effect of the multiple evidentiary errors denied him due process and a fair trial. Court affirm.

A jury convicted Wahid Yossuf Nazary of embezzlement by an employee (Pen. Code,[1] § 508; count 1) and grand theft by an employee (§ 487, subd. (b)(3); count 2). The trial court sentenced Nazary to two years in prison on count 1 and stayed the sentence on count 2 pursuant to section 654.
Nazary appeals, contending he cannot be convicted of both grand theft and embezzlement because they are the same crime, or alternatively, grand theft is a lesser included offense of embezzlement which must be stricken. He also claims the trial court committed prejudicial error in permitting the prosecutor to play a videotaped confrontation with him in his private workplace office in violation of section 632 and his privacy rights, in denying his motion to strike the testimony of a witness at trial, and in overruling hearsay objections to certain receipts admitted into evidence. Nazary finally asserts the cumulative effect of the multiple evidentiary errors denied him due process and a fair trial. Court affirm.

In this case we are presented with an issue of first impression in California: Does the remedy of rescission in a securities fraud claim brought under Corporations Code sections 25504 and 25504.1[1] require privity of contract between the plaintiff and defendant? In other words, can a purchaser of securities sue for rescission under sections 25504 and 25504.1, which provide for liability against "control persons" and "aiders and abettors," if those persons or entities did not sell the security to the plaintiff? We conclude that privity of contract is necessary to maintain an action for rescission under sections 25504 and 25504.1, and therefore a purchaser of securities may not maintain such a claim against someone other than the direct seller. That is so because rescission requires the contracting parties to be placed in the position they were in prior to contracting, and a non-seller, who did not receive any money from the purchaser, cannot return that money to the purchaser. Court affirm.