CA Pub. Decisions

A modification decision.

Juvenile court erred where it terminated father's parental rights without first finding that father was unfit based on clear and convincing evidence, and where it based its decision on father's poverty. Remand was required to ensure compliance with Indian Child Welfare Act where juvenile court failed to make proper inquiries under act based on mistaken assumptions as to notice and findings of fact.

Where smoker's wife brought initial loss of consortium claim that was dismissed with prejudice and after husband's death brought subsequent wrongful death action seeking damages for loss of consortium, subsequent claim involved same primary right as initial claim, and final adjudication on merits of initial claim resulted in res judicata bar of subsequent action.

Where juvenile court exercised emergency jurisdiction over children under Uniform Child Custody Jurisdiction and Enforcement Act, and children subsequently resided with parents in a state that did not assume permanent jurisdiction and was unable to provide needed services, juvenile court's jurisdiction continued despite passage of several years. Court of appeal may consider postjudgment, nonrecord evidence that minor is not adoptable where social services agency informs court that the prospective adoptive placement for the minor fell through after juvenile court entered its order terminating parental rights and that there is no prospect of finding a new adoptive home for the minor.

Where plaintiff in dispute over overtime pay of $44.63 that was settled in plaintiff's favor for $10,500 asked trial court for $46,000 in attorney's fees, trial court erred in denying fees to plaintiff outright because plaintiff was entitled collect "reasonable" fees under Labor Code Secs. 1194(a), 2699(g) and 266(e); given amount in dispute, and that plaintiff was underpaid as result of an honest mistake made in reliance on a formula provided by his union, plaintiff was entitled to only $500 in fees because trial court could not reasonably have awarded fees in excess of amount.

Where defendant who no longer resided in California moved to vacate renewal of money judgment in favor of plaintiff, arguing that he had insufficient contacts with California to confer personal jurisdiction, trial court properly denied motion filed more than 30 days after service of notice of renewal because it was untimely under Code of Civil Procedure Sec. 683.170, and because court had continuing jurisdiction, derived from its jurisdiction at time of original judgment, under Sec. 410.50 to enter renewal.

Petitioner Robyn Jensen petitions for a writ of prohibition directing the trial court to take no further action other than to dismiss the charges against her on the basis of an alleged violation of her right to a speedy trial. (Pen. Code, 1382.) Court deny the petition.

Where plaintiff is injured through negligence, and the injuries are subsequently aggravated due to negligent medical care, Proposition 51's abolition of joint liability for noneconomic damages permits the original tortfeasor to reduce liability for such damages by showing that the medical professionals share responsibility for the aggravation of such injuries. Application of Proposition 51 in cases involving an original tortfeasor's liability for subsequent negligent medical treatment is not limited to successive instances of medical malpractice.

In a contractual arbitration, a neutral arbitratormust disclose all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial[.] (Code Civ. Proc., 1281.9, subd. (a).) In this writ proceeding arising out of a petition to compel the appointment of a neutral arbitrator, the issue is whether the required disclosure must be made (1) at the time the trial court proposes five individuals for the parties consideration, or (2) when the arbitrator is notified in writing that he has been selected by the parties or appointed by the court. As did the trial court, we conclude that disclosure is not required until the arbitrator is actually selected by the parties or appointed by the court and notified as required by section 1281.9, subdivision (b). The petition is denied.

Affirmative defenses of comparative fault and failure to mitigate damages are unavailable in an action by a public entity to recover firefighting costs from landowner negligently setting fire or allowing fire to spread to adjoining properties where application of such defense would reduce plaintiff's recovery based on a judge or jury's finding that plaintiff used unreasonable or inefficient methods to fight the fire contrary to law of sovereign immunity.

Denial of application for preliminary injunction solely on the ground the balance of hardships favored defendant was error where trial court declined to consider the potential merit of plaintiff's claims, believing it was unnecessary to address that factor; proper test is to treat the likelihood of success and the balance of hardships as "interrelated factors," so that the stronger the likelihood of success by plaintiff, the greater the showing of hardship must be in order for the defendant to avoid the injunction.

A modification decision.

In determining whether statutory assessment upon commodities producer for the purpose of stimulating sales of product through generic advertising violates state constitution's guarantee of free speech, court employs same analysis employed by U.S. Supreme Court under First Amendment--when the advertising content is overseen and subject to the control of a politically accountable official, it is government speech, and the assessment is constitutional. Purported unwillingness of consumers to purchase plaintiff's product unless certified as "Real California Cheese," which requires payment of statutory assessment, does not convert assessment into unconstitutionally compelled speech.

Standard weighted workout glove containing sand in the palm area is not "commonly known" as a "sandclub...or sandbag" and is not a "dangerous weapon" for which possession is proscribed by Penal Code Sec. 12020(a)(1).