CA Pub. Decisions

While private parties may, under appropriate circumstances, bring an action for the violation of the public trust doctrine arising from the destruction of wildlife, such an action will not lie where the alleged violation consists of the operation of wind turbines in a manner permitted by the responsible administrative agencies. Contention by private parties that permitting agency has failed to take adequate measures for the protection of wildlife may only be litigated in an action for writ of mandate after exhaustion of administrative remedies.

A modification decision.

Award of attorney's fees as sanctions for violation of in limine order was neither within the court's inherent powers nor authorized by statute. Mutual agreement by parties to an in limine order will not authorize imposition of monetary sanctions as a remedy unless the agreement specifically so provides. Sanctions on counsel imposed under Code of Civil Procedure Sec. 128.7 for falsely certifying through oral and written presentations to the court that there was evidentiary support for the complaint's factual allegations against a defendant after the trial court had granted motion in limine excluding much of plaintiff's evidence against that defendant, and that such allegations were not being maintained primarily for an improper purpose after that point, were error where sanctioned counsel presented sufficient evidence to avoid nonsuit. Where plaintiffs' evidence was sufficient to avoid summary judgment and judgment on the pleadings, and trial court made no findings that their claims were frivolous, action was brought with "reasonable cause," precluding award of attorney's fees and expert witness fees as costs under Code of Civil Procedure Sec. 1038. Trial court did not abuse its discretion in awarding costs to prevailing defendant under Sec. 998 where timely offer to pay each plaintiff $1,000 in settlement was reasonable because plaintiffs' case was based entirely on "shaky" circumstantial evidence.

Defendant who has pleaded guilty to controlled substance crimes and who is subject of a petition for recovery of hazardous clean-up expenses has a right under Health and Safety Code Sec. 11470.2 to have liability for those expenses decided by a jury, and defendant has a right to be present when that liability is decided. Defendant whose right of personal presence was denied bears the burden of demonstrating prejudice. Where only contested issue was cost of clean up, defendant's absence at hearing was not prejudicial because defendant's presence was not likely to have affected jury's verdict.

Defendant who has pleaded guilty to controlled substance crimes and who is subject of a petition for recovery of hazardous clean up expenses has a right under Health and Safety Code Sec. 11470.2 to have liability for those expenses decided by a jury, and defendant has a right to be present when that liability is decided. Defendant whose right of personal presence was denied bears the burden of demonstrating prejudice. Where only contested issue was cost of clean up, defendant's absence at hearing was not prejudicial because defendant's presence was not likely to have affected jury's verdict.

Where members of a private nonprofit organization dedicated to water skiing constructed various structures in an area designated "open space" in county plan, such development violated county's land use and related ordinances and constituted a public nuisance. Organization had no protectable property right or interest in illegal development. Where organization was aware development violated county land use and zoning laws, and continued illegal use of area until compelled to desist, organization did not suffer actual injury in reliance on county's actions or inactions. Absent exceptional circumstances, doctrine of equitable estoppel will not allow a landowner to circumvent land use restrictions when public entity fails to take early action to warn landowner that plans violate land use requirements.

Where members of a private nonprofit organization dedicated to water skiing constructed various structures in an area designated "open space" in county plan, such development violated county's land use and related ordinances and constituted a public nuisance. Organization had no protectable property right or interest in illegal development. Where organization was aware development violated county land use and zoning laws, and continued illegal use of area until compelled to desist, organization did not suffer actual injury in reliance on county's actions or inactions. Absent exceptional circumstances, doctrine of equitable estoppel will not allow a landowner to circumvent land use restrictions when public entity fails to take early action to warn landowner that plans violate land use requirements.

Where various retail pharmacies filed suit against drug company for alleged price-fixing and defendant contended plaintiffs suffered no loss because plaintiffs "passed on" claimed overcharges to customer, plaintiffs suffered no loss under the Cartwright Act because the act requires actual monetary loss by plaintiffs; pass on defense is available to defendants accused of price fixing under California antitrust law.

Where various retail pharmacies filed suit against drug company for alleged price-fixing and defendant contended plaintiffs suffered no loss because plaintiffs "passed-on" claimed overcharges to customer, plaintiffs suffered no loss under the Cartwright Act because the act requires actual monetary loss by plaintiffs; pass-on defense is available to defendants accused of price-fixing under California antitrust law.

Where various retail pharmacies filed suit against drug company for alleged price-fixing and defendant contended plaintiffs suffered no loss because plaintiffs "passed-on" claimed overcharges to customer, plaintiffs suffered no loss under the Cartwright Act because the act requires actual monetary loss by plaintiffs; pass-on defense is available to defendants accused of price-fixing under California antitrust law.

Where decedent purchased an annuity that provided for monthly benefit payments for the duration of the purchaser's life four months before dying, decedent's erroneous belief at the time of contract that she was in good health and had a reasonable life expectancy did not support a claim for rescission based on mistake of fact as a matter of law because inherent risk of death is assumed as an element of the bargain in life annuity contracts; decedent bore the risk of mistake regarding her health and life expectancy.

Where plaintiff, a contractor with a single claim for payment for building a street through a nine-home subdivision, recorded separate mechanic's liens against the nine parcels, each for the full amount of that claim, even though it conceded that it could only be paid once, defendant was entitled to have all nine liens released upon posting a single surety bond for one and one-half times the amount of the claim.

Where mother and father divorced and agreed to share custody of two minor children with no child support obligations to each other, mother later retired, and father sought to have wife's income before retirement imputed to her, father bore burden of establishing wife's ability and opportunity to earn. Father's showing that mother had retired before 65 and what mother made before retirement was insufficient.

In this appeal Thomas Burns, trustee of a family trust, and the Los Altos Golf and Country Club (LAGCC) seek review of an order sustaining the demurrer of the City of Los Altos (City) and County of Santa Clara (County) in appellants' action to recover fees paid for sewer service provided by the City. Appellants assert error in the trial court's determination that payment "under protest" was necessary before pursuing a claim for refund of fees asserted to be invalid. Court find no error and affirm the judgment of dismissal.