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State Courts -
California - March 13 - March 18, 2008
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Rippon v. Bowen, B199297,
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION EIGHT, March 13, 2008, Filed
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Overview: Although plaintiffs claimed Proposition 140 constituted a revision to California's Constitution, the initiative amended the Constitution. Plaintiffs characterized their challenge as an as applied challenge to initiative's constitutionality, but they alleged no particularized injury that, as applied to them in particular, deprived them of a right.
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Wedemeyer v. Safeco Ins. Co. of America, B197960,
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE, March 13, 2008, Filed
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Overview: Since Ins. Code, ? 11580.2, subd. (p)(3), only required that plaintiff had to exhaust underinsured driver's policy before defendant was required to pay the balance of plaintiff's underinsured motorist coverage, plaintiff stated a claim for breach of contract, and trial court erred in granting defendant's motion for judgment on the pleadings.
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Ayala v. Arroyo Vista Family Health Center, B193104,
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION THREE, March 14, 2008, Filed
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Overview: CACI No. 506 should not have been given in a medical malpractice action because the defense did not present any evidence that the method used to diagnose the patient's condition, namely, a medical history and physical examination, was one of a number of approved or recognized methods of diagnosing a patient with the patient's history and symptoms.
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People v. Walz, B198077,
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FIVE, March 14, 2008, Filed
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Overview: Trial court erred in imposing $ 200 fine on defendant convicted of forcible rape, forcible oral copulation, and sexual penetration by foreign object because Pen. Code, ? 290.3, subd. (a), did not give it discretion to impose a fine of less than prescribed amount if it determined that a defendant did not have ability to pay full amount of the fine.
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Kawamura v. Organic Pastures Dairy Co. LLC, F051733,
COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT, March 17, 2008, Filed
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Overview: A dairy company was obligated to participate in a pool pricing system as a handler, and the California Department of Food and Agriculture properly assessed the company pooling obligations, even though the company produced, from its own cows, all the milk it processed in its processing plant - so that it never actually purchased any milk.
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Fogel v. Farmers Group, Inc., B182156,
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FOUR, March 18, 2008, Filed
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Overview: A suit brought by a subscriber of reciprocal insurance exchanges to recover alleged excessive fees attorneys-in-fact collected in breach of their fiduciary duty was not barred. Ins. Code, ? 1860.1, did not apply because chapter 9 of division 1, part 2, of California's Insurance Code did not authorize the collection of attorney-in-fact fees.
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Isner v. Falkenberg/Gilliam & Associates, Inc., B195860,
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION EIGHT, March 18, 2008, Filed
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Overview: Resident employees in housing for the elderly were not entitled to compensation for time they were on call and within audible range of the telephone and alarm but not actually responding to emergencies because under Cal. Code Regs., tit. 8, ? 11050, subd. (2)(K), "hours worked" did not include time spent simply being available to perform duties.
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People v. Concha & Hernandez, B195197,
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FIVE, March 18, 2008, Filed
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Overview: Substantial evidence supported a finding that, in assaulting a victim, defendants committed provocative acts sufficient to convict them, under Pen. Code, ? 187, for the murder of an accomplice who was stabbed to death by the victim because they threatened to kill the victim, relentlessly pursued him, cornered him at a fence, and assaulted him.
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St. Vincent's School for Boys, Catholic Charities CYO v. City of San Rafael, A116690,
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION THREE, March 18, 2008, Filed
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Overview: City could recover document retrieval costs as the prevailing party under Code Civ. Proc., ? 1032, subd. (b), in a California Environmental Quality Act action, although the property owner who brought the action elected to prepare the record pursuant to Pub. Resources Code, ? 21167.6, subd. (b)(2), because the owner made excessive discovery demands.
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