CA Pub. Decisions

Agreement obligating city to vacate a portion of a city road to provide access to a proposed casino hotel, to remodel an existing fire station in order to serve the hotel property, and to construct connections to the casino's sewer and water systems and to increase their capacities to meet the needs of the casino development was a "project" within the meaning of CEQA. City's approval of agreement without performing an initial study to determine whether to prepare a negative declaration or an EIR violated CEQA; where agreement was, by its terms, contingent on comprehensive mitigation of negative impacts, severance of provisions violating CEQA, permitting enforcement of remainder of the agreement, would preclude fulfillment of agreement's central objectives and was correctly denied by the court.

The term "indicated" as used in Public Contract Code Sec. 7104, which requires that a local public entity that has contracted for public work involving an excavation deeper than four feet issue a change order altering the contractor's cost of performing the work when the subsurface conditions at the jobsite materially differ from those "indicated" in the contract refers to contract information provided prospective bidders from which an inference reasonably might be drawn as to the actual subsurface conditions at the work site. Where contract set forth soil boring information for a purpose that invited contractor to infer that the type of rock in the test samples would be the type of rock that may be "expected" or "encountered" in performing the work, and contractor subsequently sued because city refused to issue a change order after contractor encountered a very different type of rock, trial court correctly refused to allow jury to consider as contrary to Sec. 7104 general disclaimers in contract that purported to impose on contractor sole responsibility for technical assessment of subsurface conditions.

The term "indicated" as used in Public Contract Code Sec. 7104, which requires that a local public entity that has contracted for public work involving an excavation deeper than four feet issue a change order altering the contractor's cost of performing the work when the subsurface conditions at the jobsite materially differ from those "indicated" in the contract refers to contract information provided prospective bidders from which an inference reasonably might be drawn as to the actual subsurface conditions at the work site. Where contract set forth soil boring information for a purpose that invited contractor to infer that the type of rock in the test samples would be the type of rock that may be "expected" or "encountered" in performing the work, and contractor subsequently sued because city refused to issue a change order after contractor encountered a very different type of rock, trial court correctly refused to allow jury to consider as contrary to Sec. 7104 general disclaimers in contract that purported to impose on contractor sole responsibility for technical assessment of subsurface conditions.

A modification decision.

Allowing a concrete trash container to block wheelchair access to a restaurant entrance is a prima facie violation of the Americans with Disabilities Act of 1990 and of California statute requiring full and equal access to a place of public accommodation for persons with disabilities.

Defendants were not required to admit gang membership in order to move to dissolve anti-gang injunction where plaintiff alleged that defendants were gang members and served them with the injunction. Injunction was void for lack of notice as to moving defendants where none of the moving defendants was personally served; plaintiff failed to show that the gang was an unincorporated association so that service on one member would bind the others; only member served was of unknown rank and disclaimed any intention of appearing in court; moving defendants asserted that they had no prior knowledge of proceedings and that they would have appeared if they had; and there was no showing that plaintiff could not have effectuated service in a manner more likely to give actual notice.

Defendants were not required to admit gang membership in order to move to dissolve anti-gang injunction where plaintiff alleged that defendants were gang members and served them with the injunction. Injunction was void for lack of notice as to moving defendants where none of the moving defendants was personally served; plaintiff failed to show that the gang was an unincorporated association so that service on one member would bind the others; only member served was of unknown rank and disclaimed any intention of appearing in court; moving defendants asserted that they had no prior knowledge of proceedings and that they would have appeared if they had; and there was no showing that plaintiff could not have effectuated service in a manner more likely to give actual notice.

In deciding to sentence defendant to upper term on methamphetamine manufacturing charge, trial court did not commit Blakely error in considering the fact that defendant's prior convictions were numerous and of increasing seriousness rather than simply the fact of a prior conviction. Court did not err in relying on the fact that defendant's prior performance on probation was unsatisfactory where defendant admitted he violated his probation by failing to contact his probation officer, failed to participate in a substance abuse counseling program, and possessed methamphetamine. Court's reliance on additional fact not admitted by defendant or proven to a jury beyond a reasonable doubt that defendant was on probation at time of the offense was harmless beyond a reasonable doubt where absence of fact would not have made a material difference in court's determination.

When employer fails to adequately notify employee of its subrogation lawsuit and proposed settlement involving an alleged third party tortfeasor and fails to obtain employee's consent to settlement of that suit, and when alleged third party tortfeasor, prior to settlement, was or reasonably should have been aware of the possibility of employee's claim for damages against it, alleged third party tortfeasor cannot use settlement and dismissal of employer's subrogation action to bar employee from maintaining her own action for damages against it. Employee's action for damages against alleged tortfeasor must account for any workers' compensation benefits paid to employee, or to be paid, so as to preclude double recovery for employee and double liability for tortfeasor.

In defendant's trial for child molestation, court erred neither in admitting into evidence his prior sex offenses pursuant to Evidence Code Sec. 1108, nor instructing jury on their use using CALCRIM No. 1191.

A modification decision.

In suit by autistic children against special education teacher alleging he used abusive conduct to control them, court did not err in stating in jury instructions on battery claim that, in addition to other elements, plaintiffs must prove teacher's touching of plaintiffs was unreasonable and that teacher intended to harm or offend them. Court did not err in failing to include on negligence portion of special verdict form the instruction that if any school district employee was negligent, district was negligent. Where plaintiffs did not claim that any district employees other than their teacher personally committed a battery upon them, court did not err in granting nonsuit on behalf of other district employees whom they alleged were joint tortfeasors who aided and abetted plaintiffs' teacher in his battery. Where none of plaintiffs' evidence gave rise to inference that teacher's motivation in allegedly abusing them was the fact that they were disabled children, court did not err in granting a nonsuit on their claim under Ralph Act, which prohibits acts of violence on account of disability. Where plaintiffs presented no evidence that teacher's actions caused them not to attend school, court did not err in granting nonsuit on Bane Act claim that teacher interfered with their constitutional right to free public education. Court did not err by excluding in limine evidence of teacher's alleged abuse of other children in his classroom where plaintiffs failed to make a specific offer of proof that such episodes occurred. Court did not err in denying plaintiffs' motion to reopen their case in chief before granting motion for nonsuit where plaintiffs' motion only cited evidence that had previously been presented, not further evidence they intended to submit if case were reopened. Court did not err in awarding fees to district attorney under Code of Civil Procedure Sec. 1038 as to the Bane Act and Ralph Act claims on basis those claims were brought without reasonable cause or good faith. Where all defendants were employees of district and had made a collective settlement offer to plaintiff under Code of Civil Procedure Sec. 998, court did not err in awarding them their expert witness costs.

In suit by autistic children against special education teacher alleging he used abusive conduct to control them, court did not err in stating in jury instructions on battery claim that, in addition to other elements, plaintiffs must prove teacher's touching of plaintiffs was unreasonable and that teacher intended to harm or offend them. Court did not err in failing to include on negligence portion of special verdict form the instruction that if any school district employee was negligent, district was negligent. Where plaintiffs did not claim that any district employees other than their teacher personally committed a battery upon them, court did not err in granting nonsuit on behalf of other district employees whom they alleged were joint tortfeasors who aided and abetted plaintiffs' teacher in his battery. Where none of plaintiffs' evidence gave rise to inference that teacher's motivation in allegedly abusing them was the fact that they were disabled children, court did not err in granting a nonsuit on their claim under Ralph Act, which prohibits acts of violence on account of disability. Where plaintiffs presented no evidence that teacher's actions caused them not to attend school, court did not err in granting nonsuit on Bane Act claim that teacher interfered with their constitutional right to free public education. Court did not err by excluding in limine evidence of teacher's alleged abuse of other children in his classroom where plaintiffs failed to make a specific offer of proof that such episodes occurred. Court did not err in denying plaintiffs' motion to reopen their case in chief before granting motion for nonsuit where plaintiffs' motion only cited evidence that had previously been presented, not further evidence they intended to submit if case were reopened. Court did not err in awarding fees to district attorney under Code of Civil Procedure Sec. 1038 as to the Bane Act and Ralph Act claims on basis those claims were brought without reasonable cause or good faith. Where all defendants were employees of district and had made a collective settlement offer to plaintiff under Code of Civil Procedure Sec. 998, court did not err in awarding them their expert witness costs.

A modification decision.