CA Pub. Decisions

A modification decision.

Tenant or its successors in interest have standing to seek a refund of property tax levied on parcels occupied by tenant under long term leases requiring tenant to pay the real property taxes where the term of the lease exceeded 35 years, making tenant the beneficial owner for tax purposes, and it was tenant or its successors in interest who actually paid the taxes.

City violated police officer's right to receive notice of the specific proposed disciplinary action against him within the one year statute of limitations contained in Government Code Sec. 3304(d) where officer was notified within one year period that a complaint had been filed against him but was not notified within that time as to what specific disciplinary action, if any, the city might take.

Where two defendants were in stopped vehicle, and both were taken into police custody, one defendant's question to officer after being told that they were stopped because police were investigating a shooting and the shots may have come from their car "Well, if you don't find the gun, then you are going to let us go, right" could be interpreted as an implied accusation that co defendant dumped the gun, making the question/statement inadmissible against co-defendant at a joint trial at which the declarant defendant did not testify, but any error in admitting it was harmless beyond a reasonable doubt where there were eyewitness identifications; testimony that police spotted, pursued, and stopped defendants' distinctive car which was identified as the source of shots fired right after the shooting and found defendants and no one else in the car; and fact that defendants and victim were gang rivals constituted overwhelming evidence of guilt.

A modification decision.

A modification deision.

Filing of notice of obligation to warn consumers of toxicity under Proposition 65 is a protected activity for purposes of the anti SLAPP statute. Declaratory relief action is subject to an anti SLAPP motion where plaintiff, in response to a Proposition 65 notice, seeks a declaration that it is not in violation of Proposition 65. Plaintiff, the owner of a restaurant chain alleged to serve food containing measurable amounts of a toxic substance, failed to show a likelihood of prevailing in its declaratory relief action where declarations that plaintiff's food did not contain such substance were based upon the testing of a small amount of food from a single restaurant, and defendants' experts concluded based on their testing that toxicity levels in plaintiff's food were high enough to constitute a violation of Proposition 65.

Based on the plain language of Labor Code Sec. 4061(a), which provides for notice of permanent disability indemnity "[t]ogether with the last payment of temporary disability indemnity," injured worker who received his last payment of temporary disability indemnity in 2005 was subject to new Schedule For Rating Permanent Disabilities, pursuant to provision of Senate Bill 899 applying new schedule to prior injuries "when the employer is not required to provide the notice required by Section 4061 to the injured worker." In determining whether a medical-legal report or treating physician report rendered prior to Jan. 1, 2005 is substantial evidence "indicating the existence of permanent disability" under Sec. 4660(d), so that degree of permanent disability would be rated under the old schedule, WCAB must look to the entire record. Injured worker's condition need not be permanent and stationary for comprehensive medical legal or treating physician report to indicate the existence of permanent disability.

Prosecution may not amend an information to allege aggravating circumstances listed in California Rules of Court, Rule 4.421 to secure a jury trial of those alleged aggravating circumstances. Such a procedure, while a constitutionally permissible means of determining aggravating circumstances for sentencing purposes, is unauthorized by any statute or court rule.

Juvenile court did not have jurisdiction to include in disposition order a requirement that child's stepfather and her adult brother, both of whom sexually abused her, participate in sexual abuse counseling for perpetrators; when child is removed from parent's home, Welfare and Institutions Code Sec. 362(c) does not authorize court to order other relatives with whom the child is not placed to participate in counseling or education programs. Sec. 361(c) authorizes court to impose on parent, as a condition of the disposition plan for reunification with the child, a requirement that parent demonstrate to the court's satisfaction that the parent can protect the child. When child has been the victim of sexual abuse by other relatives, court has authority to order that parent must reside separately from the perpetrators or must demonstrate that the perpetrators voluntarily participated in counseling and satisfactorily addressed the issues involved such that the child may safely reside with them.

Mother who lost custody after she was extradited to Florida and incarcerated received adequate reunification services where Department of Children and Family Services worked with mother and family in Florida to remedy problems leading to loss of custody but was thwarted by delay of Florida child welfare officials. Dependency court did not abuse its discretion in refusing to place child with aunt in Florida because placement was not in child's best interest where aunt that child had never met was reluctant to agree to adoption and was willing to forego federal funds child might need to address future disabilities; Florida child welfare officials placed bureaucratic over practical concerns; and child spent almost three years bonding with foster family.

Mother who lost custody after she was extradited to Florida and incarcerated received adequate reunification services where Department of Children and Family Services worked with mother and family in Florida to remedy problems leading to loss of custody but was thwarted by delay of Florida child welfare officials. Dependency court did not abuse its discretion in refusing to place child with aunt in Florida because placement was not in child's best interest where aunt that child had never met was reluctant to agree to adoption and was willing to forego federal funds child might need to address future disabilities; Florida child welfare officials placed bureaucratic over practical concerns; and child spent almost three years bonding with foster family.

Where juvenile court fails to duly advise party of writ rights, appellate court will treat purported appeal from order terminating reunification services as a petition for writ of mandate. Termination of reunification services was not an abuse of discretion where mother agreed to reunification plan and did not seek to modify it even though she argued in petition that it was poorly designed; mother failed to demonstrate that juvenile court failed to apply clear-and-convincing standard of proof; and evidence showed that mother waited until the week before hearing to enroll in required treatment program, failed to follow through on referrals for services, falsely told caseworker she had not been ordered to participate in drug testing, failed to show up for a scheduled drug test, visited her children sporadically and infrequently, and violated several other provisions of the plan. Juvenile court's failure to wait 60 days after service of Indian Child Welfare Act notices before ruling that ICWA did not apply was harmless where the requisite 60 day period elapsed long before parental rights were terminated, and there was no indication that ICWA applied.

Proposition 51's prohibition on apportioning noneconomic damages jointly and severally, codified at Civil Code Sec. 1431.2, applies to damages arising from negligent entrustment.