CA Pub. Decisions

Code of Civil Procedure section 2019.210 (hereafter section 2019.210) provides: â€

Code of Civil Procedure section 2019.210 (hereafter section 2019.210) provides: â€

Western Pizza Enterprises, Inc. (Western Pizza), appeals the denial of its motion to compel arbitration of a complaint filed by Octavio Sanchez. The trial court determined that a provision in the arbitration agreement prohibiting class arbitration was unenforceable, that other terms of the agreement were unconscionable, and that the agreement could not be enforced. Western Pizza contends (1) the enforceability of the arbitration agreement is a question for the arbitrator to decide; (2) the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.) preempts California law to the extent that California law would prevent the enforcement of the agreement; (3) the class arbitration waiver does not impermissibly interfere with the employees' ability to vindicate their statutory rights, and therefore is enforceable; and (4) the terms of the arbitration agreement are neither procedurally nor substantively unconscionable. We reject these contentions, conclude that the denial of the motion to compel arbitration was proper, and affirm the order.

Western Pizza Enterprises, Inc. (Western Pizza), appeals the denial of its motion to compel arbitration of a complaint filed by Octavio Sanchez. The trial court determined that a provision in the arbitration agreement prohibiting class arbitration was unenforceable, that other terms of the agreement were unconscionable, and that the agreement could not be enforced. Western Pizza contends (1) the enforceability of the arbitration agreement is a question for the arbitrator to decide; (2) the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.) preempts California law to the extent that California law would prevent the enforcement of the agreement; (3) the class arbitration waiver does not impermissibly interfere with the employees' ability to vindicate their statutory rights, and therefore is enforceable; and (4) the terms of the arbitration agreement are neither procedurally nor substantively unconscionable. We reject these contentions, conclude that the denial of the motion to compel arbitration was proper, and affirm the order.

More than a half century ago, in Biakanja v. Irving (1958) 49 Cal.2d 647 (Biakanja), the Supreme Court held, notwithstanding the absence of privity, a notary public, engaging in the unauthorized practice of law, who drafted and supervised the execution of a will, owed a duty of care to the beneficiary who lost her inheritance due to his negligence. Three years later, in Lucas v. Hamm (1961) 56 Cal.2d 583 (Lucas), the Court held beneficiaries whose bequests arguably failed because the testator's lawyer did not adequately safeguard the will from challenge under the rule against perpetuities could assert a claim for professional negligence against the lawyer. Under Biakanja and Lucas and the appellate cases that explain and apply them, does a testator's lawyer owe a duty of care to a nonclient who alleges she was a potential beneficiary of the testator's estate in the absence of an executed will or trust instrument expressly reflecting the testator's intent? Does the answer to the question change if the nonclient was previously named in a will or trust instrument executed by the testator and the allegation is the testator intended to revise his or her estate plan to increase the gift to the beneficiary? Because recognizing an expanded duty of care in either situation would place an intolerable burden on the legal profession, we conclude the answer to both questions must be no. Accordingly, we affirm the trial court's order of dismissal and the judgment entered after it sustained without leave to amend Gregory Lederman's demurrer to Myung Chang's second amended complaint for legal malpractice, breach of fiduciary duty and intentional infliction of emotion distress.

More than a half century ago, in Biakanja v. Irving (1958) 49 Cal.2d 647 (Biakanja), the Supreme Court held, notwithstanding the absence of privity, a notary public, engaging in the unauthorized practice of law, who drafted and supervised the execution of a will, owed a duty of care to the beneficiary who lost her inheritance due to his negligence. Three years later, in Lucas v. Hamm (1961) 56 Cal.2d 583 (Lucas), the Court held beneficiaries whose bequests arguably failed because the testator's lawyer did not adequately safeguard the will from challenge under the rule against perpetuities could assert a claim for professional negligence against the lawyer. Under Biakanja and Lucas and the appellate cases that explain and apply them, does a testator's lawyer owe a duty of care to a nonclient who alleges she was a potential beneficiary of the testator's estate in the absence of an executed will or trust instrument expressly reflecting the testator's intent? Does the answer to the question change if the nonclient was previously named in a will or trust instrument executed by the testator and the allegation is the testator intended to revise his or her estate plan to increase the gift to the beneficiary? Because recognizing an expanded duty of care in either situation would place an intolerable burden on the legal profession, we conclude the answer to both questions must be no. Accordingly, we affirm the trial court's order of dismissal and the judgment entered after it sustained without leave to amend Gregory Lederman's demurrer to Myung Chang's second amended complaint for legal malpractice, breach of fiduciary duty and intentional infliction of emotion distress.

In this marital dissolution action between David Dellaria (David) and Elizabeth Blickman-Dellaria (now Elizabeth Blickman) (Elizabeth), David has filed this appeal challenging the trial court's division of the parties' community property.[1] The trial court found that after the parties had separated, they entered into a valid and enforceable oral agreement to divide the major assets in the marital estate. The court then adjudicated their community property rights in accordance with the parties' agreement, even though it resulted in an uneven distribution of property. It is noteworthy that the parties' agreement was never reduced to writing, nor was there an in-court stipulation by the parties to divide their assets in accordance with their oral agreement.
David argues that the trial court erred as a matter of law in making an uneven distribution of the parties' community property in accordance with their oral agreement. He points out that, according to Family Code section 2550, the court was statutorily mandated to order an equal division of community assets, â€

Racial integration of America's public schools began with Brown v. Board of Education (1954) 347 U.S. 483, when the United States Supreme Court ruled that state-imposed segregation in education that intentionally discriminated against African Americans on the basis of their race was unconstitutional. Half a century after Brown¸ some educators have gone beyond removing state-imposed segregation, and have implemented affirmative policies fostering social diversity in their schools. The question confronting courts today is whether these new policies go too far and themselves improperly discriminate on the basis of race.

While appellant, Douglas R. Hansen, was employed by respondent, the California Department of Corrections and Rehabilitation (CDCR), as a vocational instructor at the Correctional Custody Institution (CCI), CDCR's Office of Internal Affairs began an investigation into allegations that Hansen had engaged in misconduct and criminal activity. The alleged criminal activity included violations of Penal Code section 289.6, subdivision (a)(3) (prohibits sexual activity with inmates) and Penal Code section 4570 (prohibits unauthorized communications with inmates). Shortly thereafter, Hansen retired from state service. Nevertheless, the investigation continued engendering a warrant to search Hansen's residence. CDCR agents, accompanied by the local police, executed the warrant, searched the residence, and seized several items. However, no criminal charges were ever filed.

A jury convicted Chauncy Lee Harris, Jr. of transportation of a controlled substance, cocaine base (Health & Saf. Code, § 11352, subd. (a); count 1) and possession of narcotics paraphernalia (Health & Saf. Code, § 11364; count 4). As to count 1, the jury specifically found true that the transportation was for personal use within the meaning of Penal Code[1] section1210, subdivision (a).[2] After a bifurcated proceeding, the court found true that Harris had suffered seven prior prison terms (§ 667.5, subd. (b)) and that those included three previous drug/sale/transportation convictions under Health & Safety Code section 11352 (Health & Saf. Code, § 11370.2, subd. (a)). The court sentenced Harris to a total prison term of 19 years.
On appeal, Harris essentially contends the trial court imposed an unauthorized sentence by sending him to prison instead of granting him mandatory probation under Proposition 36 based on the express jury finding that he transported the cocaine base for his personal use and that the imposition of a 19-year prison term in this case constitutes cruel and unusual punishment under the Eighth Amendment of the United States Constitution. Under the unique facts of this case, we conclude that the trial court was

required to grant Harris Proposition 36 probation and his other arguments are moot.[3] We therefore affirm Harris's convictions and reverse his sentence, remanding the matter to the trial court for resentencing under Proposition 36.

The minute order stated the bail was "forfeited," and that a bench warrant was issued with a $200,000 bail requirement. Eight days later, on August 25, the clerk mailed a document notifying Bankers of the forfeiture of the bail bond. The notice stated the forfeiture would become final unless Bankers obtained an order setting aside the forfeiture. Bankers was thereafter granted extensions of time to file a motion to vacate the forfeiture.
On August 22, 2007, Bankers moved to vacate the forfeiture and exonerate bail on grounds that the trial court lost jurisdiction because it did not properly declare the bail forfeiture in open court as required by section 1305(a). The county opposed the motion, arguing the court's statement that " 'we'll keep the bail bond' " constituted the requisite declaration in "open court" that the bond was forfeited. The court denied Bankers' motion to vacate the forfeiture.

We are called on in this case to decide an issue of first impression in this state; namely, when must a party falsely accused of child abuse or neglect allegations in a child custody proceeding move for sanctions under Family Code[1] section 3027.1 against the person or persons who made such allegations. Because section 3027.1 is silent on the issue, absent further direction from the Legislature we conclude equitable principles apply to determine the timing of a section 3027.1 sanctions motion. Based on such principles and the public policy of ensuring the best interest of children prevails in child custody cases, we further conclude a party moving for section 3027.1 sanctions must file his or her motion on or before the earliest of 60 days after the judgment or order exonerating him or her from such allegations is served, or 180 days from the entry of such judgment or order.

We are called on in this case to decide an issue of first impression in this state; namely, when must a party falsely accused of child abuse or neglect allegations in a child custody proceeding move for sanctions under Family Code[1] section 3027.1 against the person or persons who made such allegations. Because section 3027.1 is silent on the issue, absent further direction from the Legislature we conclude equitable principles apply to determine the timing of a section 3027.1 sanctions motion. Based on such principles and the public policy of ensuring the best interest of children prevails in child custody cases, we further conclude a party moving for section 3027.1 sanctions must file his or her motion on or before the earliest of 60 days after the judgment or order exonerating him or her from such allegations is served, or 180 days from the entry of such judgment or order.

A county flood control and water conservation district held an election on whether to impose a new storm drainage fee. The election was mandated by article XIII D of the California Constitution, which was adopted by voter initiative in 1996 as Proposition 218. In the district's election, voters' names and addresses were printed on the ballots and voters were directed to sign their ballots. The fee was approved. However, a voter contested the election, claiming the election procedures violated the voting secrecy requirement of article II, section 7 of the California Constitution. The superior court denied the election contest.
This appeal requires us to construe article XIII D and specifically article XIII D, section 6, subdivision (c)[1], which imposes the election requirement for certain new or increased real property fees. We conclude the voters who adopted Proposition 218 intended voting to be secret in these fee elections. We set aside the district's election results because voters' names were printed on the ballots and ballots had to be signed, yet voters were provided no assurances that their votes would be kept secret.