CA Pub. Decisions

Trial court abused its discretion by denying defendant's motion to sever trial on charges of misdemeanor indecent exposure and felony sexual assault where charges arose from entirely distinct and dissimilar incidents with no historical connection to each other and no overlap in evidence or witnesses, and where proof of defendant's guilt of misdemeanor charge was strong but felony case was comparatively weak, being based on credibility of victim's identification of defendant and his vehicle. Indecent exposure was not relevant to show intent required for assault charge and could not be admitted for that purpose. Defendant's commission of an indecent exposure also could not show without more a motive to commit rape. Evidence of defendant's indecent exposure did not have any tendency to show that defendant had a propensity or predisposition to commit sexual assault without further evidentiary foundation by expert testimony. In context of a sexual assault case, charge of indecent exposure had potential to inflame jury. Such a repellant sexual aberration would naturally incline jury to view defendant as a "freak," which would reduce jurors' ability to view in an unbiased manner the defense evidence raising doubts about victim's identification of defendant and his truck. Where prosecutor urged jurors to convict defendant of assault based on his commission of indecent exposure and relied on spurious legal theories to place the indecent exposure offense before jury as evidence of assault, misdemeanor played a central role in securing defendant's felony conviction, and trial was so grossly unfair as to deny defendant's right to due process.

Trial court abused its discretion by denying defendant's motion to sever trial on charges of misdemeanor indecent exposure and felony sexual assault where charges arose from entirely distinct and dissimilar incidents with no historical connection to each other and no overlap in evidence or witnesses, and where proof of defendant's guilt of misdemeanor charge was strong but felony case was comparatively weak, being based on credibility of victim's identification of defendant and his vehicle. Indecent exposure was not relevant to show intent required for assault charge and could not be admitted for that purpose. Defendant's commission of an indecent exposure also could not show without more a motive to commit rape. Evidence of defendant's indecent exposure did not have any tendency to show that defendant had a propensity or predisposition to commit sexual assault without further evidentiary foundation by expert testimony. In context of a sexual assault case, charge of indecent exposure had potential to inflame jury. Such a repellant sexual aberration would naturally incline jury to view defendant as a "freak," which would reduce jurors' ability to view in an unbiased manner the defense evidence raising doubts about victim's identification of defendant and his truck. Where prosecutor urged jurors to convict defendant of assault based on his commission of indecent exposure and relied on spurious legal theories to place the indecent exposure offense before jury as evidence of assault, misdemeanor played a central role in securing defendant's felony conviction, and trial was so grossly unfair as to deny defendant's right to due process.

Trial court abused its discretion by denying defendant's motion to sever trial on charges of misdemeanor indecent exposure and felony sexual assault where charges arose from entirely distinct and dissimilar incidents with no historical connection to each other and no overlap in evidence or witnesses, and where proof of defendant's guilt of misdemeanor charge was strong but felony case was comparatively weak, being based on credibility of victim's identification of defendant and his vehicle. Indecent exposure was not relevant to show intent required for assault charge and could not be admitted for that purpose. Defendant's commission of an indecent exposure also could not show without more a motive to commit rape. Evidence of defendant's indecent exposure did not have any tendency to show that defendant had a propensity or predisposition to commit sexual assault without further evidentiary foundation by expert testimony. In context of a sexual assault case, charge of indecent exposure had potential to inflame jury. Such a repellant sexual aberration would naturally incline jury to view defendant as a "freak," which would reduce jurors' ability to view in an unbiased manner the defense evidence raising doubts about victim's identification of defendant and his truck. Where prosecutor urged jurors to convict defendant of assault based on his commission of indecent exposure and relied on spurious legal theories to place the indecent exposure offense before jury as evidence of assault, misdemeanor played a central role in securing defendant's felony conviction, and trial was so grossly unfair as to deny defendant's right to due process.

Trial court abused its discretion by denying defendant's motion to sever trial on charges of misdemeanor indecent exposure and felony sexual assault where charges arose from entirely distinct and dissimilar incidents with no historical connection to each other and no overlap in evidence or witnesses, and where proof of defendant's guilt of misdemeanor charge was strong but felony case was comparatively weak, being based on credibility of victim's identification of defendant and his vehicle. Indecent exposure was not relevant to show intent required for assault charge and could not be admitted for that purpose. Defendant's commission of an indecent exposure also could not show without more a motive to commit rape. Evidence of defendant's indecent exposure did not have any tendency to show that defendant had a propensity or predisposition to commit sexual assault without further evidentiary foundation by expert testimony. In context of a sexual assault case, charge of indecent exposure had potential to inflame jury. Such a repellant sexual aberration would naturally incline jury to view defendant as a "freak," which would reduce jurors' ability to view in an unbiased manner the defense evidence raising doubts about victim's identification of defendant and his truck. Where prosecutor urged jurors to convict defendant of assault based on his commission of indecent exposure and relied on spurious legal theories to place the indecent exposure offense before jury as evidence of assault, misdemeanor played a central role in securing defendant's felony conviction, and trial was so grossly unfair as to deny defendant's right to due process.

Trial court abused its discretion by denying defendant's motion to sever trial on charges of misdemeanor indecent exposure and felony sexual assault where charges arose from entirely distinct and dissimilar incidents with no historical connection to each other and no overlap in evidence or witnesses, and where proof of defendant's guilt of misdemeanor charge was strong but felony case was comparatively weak, being based on credibility of victim's identification of defendant and his vehicle. Indecent exposure was not relevant to show intent required for assault charge and could not be admitted for that purpose. Defendant's commission of an indecent exposure also could not show without more a motive to commit rape. Evidence of defendant's indecent exposure did not have any tendency to show that defendant had a propensity or predisposition to commit sexual assault without further evidentiary foundation by expert testimony. In context of a sexual assault case, charge of indecent exposure had potential to inflame jury. Such a repellant sexual aberration would naturally incline jury to view defendant as a "freak," which would reduce jurors' ability to view in an unbiased manner the defense evidence raising doubts about victim's identification of defendant and his truck. Where prosecutor urged jurors to convict defendant of assault based on his commission of indecent exposure and relied on spurious legal theories to place the indecent exposure offense before jury as evidence of assault, misdemeanor played a central role in securing defendant's felony conviction, and trial was so grossly unfair as to deny defendant's right to due process.

Probate Code Sec. 1516.5 which authorizes termination of parental rights when a probate guardianship has continued for at least two years, and trial court finds that adoption by guardian would be in child's best interest is not facially unconstitutional because a showing of current unfitness is not always necessary when a court terminates parental rights after parent child family unit has ceased to exist and parent's entitlement to custody is not at issue; when child develops an interest in a stable, continuing placement, and guardian acquires a recognized interest in the care and custody of child; and when statute requires trial court to balance all familial interests in deciding what is best for child. Trial courts have discretion to determine on a case by case basis whether to apply Sec. 1516.5 to a guardianship in existence on its effective date. Where mother had not sought visitation during more than three and a half years of probate guardianship and did not see child for an even longer period, reunification was a remote possibility, and retroactive application of Sec.1516.5 was consistent with due process.

Probate Code Sec. 1516.5 which authorizes termination of parental rights when a probate guardianship has continued for at least two years, and trial court finds that adoption by guardian would be in child's best interest is not facially unconstitutional because a showing of current unfitness is not always necessary when a court terminates parental rights after parent child family unit has ceased to exist and parent's entitlement to custody is not at issue; when child develops an interest in a stable, continuing placement, and guardian acquires a recognized interest in the care and custody of child; and when statute requires trial court to balance all familial interests in deciding what is best for child. Trial courts have discretion to determine on a case by case basis whether to apply Sec. 1516.5 to a guardianship in existence on its effective date. Where mother had not sought visitation during more than three and a half years of probate guardianship and did not see child for an even longer period, reunification was a remote possibility, and retroactive application of Sec.1516.5 was consistent with due process.

Utility's immunity from liability to plaintiff injured by contact with power line for which utility had an easement, pursuant to Civil Code Sec. 846 which provides with certain exceptions that a property owner "owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose" precludes property owner, potentially liable to plaintiff under one of the statutory exceptions, from recovering on cross complaint alleging utility's liability for implied contractual indemnity based on its breach of a contractual duty owed to property owner to maintain its power line easement in repair.

Utility's immunity from liability to plaintiff injured by contact with power line for which utility had an easement, pursuant to Civil Code Sec. 846 which provides with certain exceptions that a property owner "owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose" precludes property owner, potentially liable to plaintiff under one of the statutory exceptions, from recovering on cross complaint alleging utility's liability for implied contractual indemnity based on its breach of a contractual duty owed to property owner to maintain its power line easement in repair.

Administrators at Saddleback College placed a temporary hold on plaintiff Patrick Crosbys student records pending an interview with an administration official regarding two incidents that occurred in Saddleback Colleges library. In the first incident, campus police detained plaintiff for viewing MySpace member profiles on a library computer. The second involved an argument between plaintiff and a librarian concerning the latters request to turn down the volume of music plaintiff was listening to while wearing headphones. Although administrators released the hold on plaintiffs records after he met with them, plaintiff sued defendant South Orange County Community College District (District). He alleged its policy restricting a students use of the schools Internet system to appropriate academic, professional and institutional purposes violated Education Code section 66301,[1]which prohibits a state college from disciplining a student for on-campus conduct that the First Amendment free speech clause would protect if the conduct occurred off-campus. The trial court granted summary adjudication for the student, holding that the Districts Internet use policy was overbroad on its face and violated section 66301. After plaintiff dismissed his remaining cause of action, the court entered judgment requiring the District to amend its policy. Court conclude the trial courts judgment sufficiently addressed the asserted conflict between the Districts policy and section 66301. We also conclude the trial court did not abuse its discretion in denying plaintiffs efforts to amend the complaint because plaintiff did not act diligently in seeking leave. Moreover, plaintiff has failed to demonstrate the trial court abused its discretion in failing to compel the production of documents and witnesses. Finally, we reject plaintiffs contention that section 66300 is unconstitutional because plaintiff raises the issue for the first time on appeal. Accordingly, Court affirm.

Coldwell Banker Residential Brokerage Company (Coldwell Banker) and Mickey Nathans (sometimes collectively appellants) appeal an order of the trial court denying their motions to compel arbitration of this action and for a stay of proceedings. The trial court found appellants waived the right to compel arbitration. Court find substantial evidence in the record to support the courts determination and therefore affirm.

After his probation was revoked in a contested hearing, the court revoked the suspension of a previously imposed sentence, sending defendant Dennis Henry Hudson to state prison for five years. Defendant contends (1) the admission into evidence of a Salvation Army letter at the probation revocation hearing violated his due process right to confrontation, (2) the court erroneously imposed the upper term and two enhancements based on two prior prison terms, and (3) Peoplev.Black (2007) 41 Cal.4th 799 (Black II) was wrongly decided. Court affirm the judgment.

Suleiman Abd Qazza (appellant) appeals from the denial of his motion to vacate a 1994 no contest plea. We appointed counsel to represent him on appeal. Counsel filed a brief that set forth the facts and procedural history of the case. Counsel presented no argument for reversal but asked this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel presented one possible but not arguable issue on appeal: whether the court properly advised appellant of the immigration consequences of his plea. Court granted appellant 30 days to file a supplemental brief. In his responsive brief, appellant also asserts that the trial court failed to adequately advise him of the immigration consequences of his 1994 no contest plea. court have now reviewed the entire record and find no error in the trial courts order. The order and the judgment are therefore affirmed.

Trial court erred in granting summary judgment for department store chain on former employee's claim under federal Fair Employment and Housing Act Sec. 12940(a) for disability discrimination because a triable issue of fact existed as to plaintiff's ability to work with accommodation where doctor averred that his statement that plaintiff was "unable to perform work of any kind" applied only to duties of current position; plaintiff's testimony about her substantial physical restrictions did not self evidently prevent her from performing any work whatsoever; and plaintiff raised a triable issue of fact about whether vacant desk jobs for which she was otherwise qualified were available. Discovery commissioner did not abuse discretion in refusing plaintiff's request to compel discovery as to every vacant position at every one of employer's stores in nation where no authority supported such a broad order, and plaintiff did not aver that she would be willing to relocate anywhere, but commissioner erred in limiting order to stores in two cities. An employer is liable under Sec. 12940(m) for failing to accommodate an employee only if work environment could have been modified or adjusted in a manner that would have enabled employee to perform job's essential functions, but plaintiff bears burden of proving he or she was able to perform essential functions of job with accommodation, and trial court erred in granting summary judgment to employer because a triable issue about whether employer failed to reasonably accommodate plaintiff by reassigning her to an available vacant position existed where a triable issue of fact existed whether plaintiff was able to perform essential functions of such a position with or without accommodation. Sec. 12940(n) which requires employers to engage in a timely, good faith, interactive process with employee to determine reasonable accommodations imposes liability only if a reasonable accommodation was possible, and employee bears burden of proving accommodation's availability, but trial court erred in granting summary judgment for employer because a reasonable jury could find employer caused breakdown in process by refusing to provide information about available positions that might have assisted plaintiff in preparing a list of work related medical restrictions; unreasonably relied on tentativeness of plaintiff's note just prior to termination stating she might be able to return to work in a new position and unilaterally determined plaintiff's ability to perform work of other positions; and unreasonably decided to terminate plaintiff without advance warning or further discussion. Trial court properly granted summary judgment to employer on retaliation cause of action where employer provided legitimate nondiscriminatory reason for termination, and plaintiff's evidence of hostility toward her did not support an inference of retaliatory intent based on request for accommodation. Trial court erred in granting summary judgment on cause of action for national origin and ethnicity discrimination because plaintiff established a prima facie case where she alleged similarly situated persons who were not members of her protected class did not suffer same adverse employment action, and employer's nondiscriminatory reason for plaintiff's termination did not directly address alleged disparate treatment.