CA Pub. Decisions

Trial court did not err in granting anti SLAPP motion by Department of Corrections and Rehabilitation in suit by private prison contractor alleging defamation by department's director who published a letter to contractor terminating contract on grounds that it had misappropriated funds because communications were protected activity under Code of Civil Procedure Sec. 425.16(e)(2), which protects statements or writings "made in connection with an issue under consideration or review by [an] executive...body," and subsection (e)(3), which protects statements or writings made in a public forum in connection with an issue of public interest. Trial court did not err in ruling that plaintiffs could not prevail on defamation claims because communications, which were made by a public official exercising policy making functions in course of discharging official duties, were absolutely privileged under Civil Code Sec. 47(a). Award of attorney's fees to defendants was proper where no error existed in order striking defamation claims, and plaintiffs did not contend that amount was excessive.

Trial court's imposition of DNA penalty assessment under Government Code Sec. 76104.6 against defendant violated constitutional prohibition on ex post facto laws because defendant's criminal act preceded section's enactment and assessment was a penalty where it was explicitly designated a penalty; calculated in direct proportion to other fines, penalties, and forfeitures imposed; collected using same provision for collecting state penalty assessment; and used primarily for future law enforcement purposes.

Former employees' causes of action for fraud, negligent misrepresentation, false advertising, and unfair business practices arising from defendants allegedly inducing plaintiffs to enter into an employment contract were not barred by adverse ruling in administrative proceeding before labor commissioner, since such claims are not within labor commissioner's jurisdiction. Labor commissioner's ruling that one of several plaintiffs had no employment relationship with defendants precluded plaintiff's claims for misrepresentation and unfair business practices arising from the alleged relationship.

Former employees' causes of action for fraud, negligent misrepresentation, false advertising, and unfair business practices arising from defendants allegedly inducing plaintiffs to enter into an employment contract were not barred by adverse ruling in administrative proceeding before labor commissioner, since such claims are not within labor commissioner's jurisdiction. Labor commissioner's ruling that one of several plaintiffs had no employment relationship with defendants precluded plaintiff's claims for misrepresentation and unfair business practices arising from the alleged relationship.

Trial court's imposition of upper term sentence for rape based on finding of aggravated factors did not violate defendant's constitutional right to have factors determined by a jury beyond a reasonable doubt where one legally sufficient aggravating circumstance was based on defendant's record of prior convictions; issue to be determined was whether trial court's fact finding increased sentence that otherwise could have been imposed, not sentence that would have been imposed.

Magistrate's finding of sufficient probable cause for issuance of search warrant and subsequent search of defendant's mother's garage that uncovered computer upon which child pornography was found were reasonable under Fourth Amendment where warrant application was supported by detective's opinion that child molesters collect and store child pornography, by statements of child that defendant molested her as recently as two weeks earlier, and by recorded telephone conversation between defendant and his mother wherein defendant stated that he was storing his computer in hot garage and asking his mother not to let anyone "mess" with it.

Magistrate's finding of sufficient probable cause for issuance of search warrant and subsequent search of defendant's mother's garage that uncovered computer upon which child pornography was found were reasonable under Fourth Amendment where warrant application was supported by detective's opinion that child molesters collect and store child pornography, by statements of child that defendant molested her as recently as two weeks earlier, and by recorded telephone conversation between defendant and his mother wherein defendant stated that he was storing his computer in hot garage and asking his mother not to let anyone "mess" with it.

Magistrate's finding of sufficient probable cause for issuance of search warrant and subsequent search of defendant's mother's garage that uncovered computer upon which child pornography was found were reasonable under Fourth Amendment where warrant application was supported by detective's opinion that child molesters collect and store child pornography, by statements of child that defendant molested her as recently as two weeks earlier, and by recorded telephone conversation between defendant and his mother wherein defendant stated that he was storing his computer in hot garage and asking his mother not to let anyone "mess" with it.

Trial court did not err in ordering new trial on ground of juror misconduct in suit by man, convicted of trumped up charges in police department scandal, against his attorney and public defender's office for legal malpractice where juror denied familiarity with scandal during direct questioning on voir dire but had previously starred in motion picture explicitly referencing scandal. Where question existed whether plaintiff should have suspected that his counsel was acting negligently at time of sentencing hearing, defendants were not entitled to summary judgment on ground that complaint filed over two years later was barred by statute of limitations. Trial court erred in ruling that plaintiff's cause of action for legal malpractice required exoneration by post-conviction relief in order to accrue and that he was entitled to relief under Government Code Sec. 946.6 from claims presentation requirement. Civil Code Sec. 1431.2 requires apportionment of fault among all tortfeasors, notwithstanding any immunity as a public employee under Government Code Sec. 821.6, in a legal malpractice cause of action seeking primarily noneconomic damages for personal injury.

Trial court did not err in ordering new trial on ground of juror misconduct in suit by man, convicted of trumped up charges in police department scandal, against his attorney and public defender's office for legal malpractice where juror denied familiarity with scandal during direct questioning on voir dire but had previously starred in motion picture explicitly referencing scandal. Where question existed whether plaintiff should have suspected that his counsel was acting negligently at time of sentencing hearing, defendants were not entitled to summary judgment on ground that complaint filed over two years later was barred by statute of limitations. Trial court erred in ruling that plaintiff's cause of action for legal malpractice required exoneration by post conviction relief in order to accrue and that he was entitled to relief under Government Code Sec. 946.6 from claims presentation requirement. Civil Code Sec. 1431.2 requires apportionment of fault among all tortfeasors, notwithstanding any immunity as a public employee under Government Code Sec. 821.6, in a legal malpractice cause of action seeking primarily noneconomic damages for personal injury.

Trial court did not err in ordering new trial on ground of juror misconduct in suit by man, convicted of trumped up charges in police department scandal, against his attorney and public defender's office for legal malpractice where juror denied familiarity with scandal during direct questioning on voir dire but had previously starred in motion picture explicitly referencing scandal. Where question existed whether plaintiff should have suspected that his counsel was acting negligently at time of sentencing hearing, defendants were not entitled to summary judgment on ground that complaint filed over two years later was barred by statute of limitations. Trial court erred in ruling that plaintiff's cause of action for legal malpractice required exoneration by post conviction relief in order to accrue and that he was entitled to relief under Government Code Sec. 946.6 from claims presentation requirement. Civil Code Sec. 1431.2 requires apportionment of fault among all tortfeasors, notwithstanding any immunity as a public employee under Government Code Sec. 821.6, in a legal malpractice cause of action seeking primarily noneconomic damages for personal injury.

Where hit and run victim sued juvenile offender and recovered damages, out of which victim paid legal fees and costs, victim was entitled to recover as restitution in juvenile court proceedings at least that portion of the legal fees and costs allocated to recovery of economic damages, with burden of proof being on offender to show how those fees and costs might be allocated.

A modification decision.

Plaintiff raised triable issues as to timeliness of her claims of age and race discrimination in violation of FEHA by presenting evidence supporting a reasonable inference that defendant engaged in acts some within the one year limitations period each of which was intentionally discriminatory. Where plaintiff was employed as a nursing instructor, evidence that defendant substantially reduced plaintiff's teaching assignments and that this reduction in classes was attributable to race and age was sufficient to raise a triable issue of fact concerning whether plaintiff suffered an adverse employment action. Evidence that plaintiff's supervisor made a racial comment about plaintiff, an African American, to a co worker, and also made derogatory racial comments to plaintiff concerning her African American coworkers, and that supervisor substantially reduced plaintiff's teaching assignments and excessively monitored plaintiff's classroom performance when plaintiff was allowed to teach would permit a reasonable trier of fact to infer that plaintiff's race motivated supervisor's conduct in taking away the majority of her teaching assignments and giving them to instructors who were not African American, and in monitoring plaintiff's performance while not monitoring the nursing instructors who were not African American, and thus raised a triable issue of fact as to whether supervisor's conduct was severe and pervasive enough to alter the conditions of plaintiff's employment and thereby constituted actionable racial harassment.