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California Civil Procedure
California Appellate Court
Case Summaries
March  30, 2004

California Appellate Court
Case Law Case Summaries: March 30, 2004
2004/04/02 Fri PM 01:22:20 CST
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TABLE OF CONTENTS

ATTORNEY'S FEES, DISPUTE RESOLUTION & ARBITRATION, INJURY AND TORT LAW
* LISKA v. ARNS LAW FIRM

FAMILY LAW
* EHRENCLOU v. MACDONALD

CRIMINAL LAW & PROCEDURE
* PEOPLE v. POWERS

INSURANCE LAW, LABOR & EMPLOYMENT LAW, WORKERS' COMPENSATION
* CALIFORNIA INS. GUAR. ASS'N v. WORKERS' COMP. APPEALS BD.

INJURY AND TORT LAW, LABOR & EMPLOYMENT LAW
* SALAZAR v. DIVERSIFIED PARATRANSIT, INC.

ATTORNEY'S FEES, CONSTRUCTION, CONTRACTS
* SUPERIOR GUNITE v. MITZEL

DISPUTE RESOLUTION & ARBITRATION, EVIDENCE, LABOR & EMPLOYMENT LAW
* SAETA v. SUPERIOR COURT OF LOS ANGELES COUNTY (DENT)

CONTRACTS, DISPUTE RESOLUTION & ARBITRATION, PROPERTY LAW & REAL ESTATE
* GREENBRIAR HOMES CMTYS., INC. v. SUPERIOR COURT OF SAN JOAQUIN
COUNTY (COURIS)

CRIMINAL LAW & PROCEDURE
* PEOPLE v. LEWIS

ADMINISTRATIVE LAW, ATTORNEY'S FEES, LABOR & EMPLOYMENT LAW
* SAMPSON v. PARKING SERV. 2000 COM, INC.

AUTOS, CRIMINAL LAW & PROCEDURE
* PEOPLE v. SHAKHVALADYAN

ATTORNEY'S FEES, CIVIL PROCEDURE, INSURANCE LAW
* CANAL INS. CO. v. TACKETT

AUTOS, CRIMINAL LAW & PROCEDURE
* FOLEY v. SUPERIOR COURT OF SAN DIEGO COUNTY (PEOPLE)
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ATTORNEY'S FEES, DISPUTE RESOLUTION & ARBITRATION, INJURY AND TORT LAW
LISKA v. ARNS LAW FIRM, No A102926 (Cal. 1st App. Dist. March 30, 2004)
A client who loses a binding fee arbitration conducted per the
mandatory fee arbitration statute may file a subsequent action against
the attorney predicated on the same allegations of misconduct or breach
of contract that formed the basis of the fee dispute; however, the
client may not seek to recover as damages any portion of the fee that
the arbitrators awarded the attorney.

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http://caselaw.lp.findlaw.com/data2/californiastatecases/a102926.pdf

FAMILY LAW
EHRENCLOU v. MACDONALD, No G032020 (Cal. 4th App. Dist. March 30, 2004)
Under California law, adults adopted under Colorado's adult adoption
statute do not qualify as "living lawful issue" of the person adopting
them.

To read the full text of this opinion, go to:
http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2003/g032020.html

To read the full text of this opinion, go to:[PDF File]
http://caselaw.lp.findlaw.com/data2/californiastatecases/g032020.pdf

CRIMINAL LAW & PROCEDURE
PEOPLE v. POWERS, No A103622 (Cal. 1st App. Dist. March 30, 2004)
A fishing boat operator who files a false fishing activity report with
the Department of Fish and Game may be prosecuted under Penal Code
section 115 for knowingly offering a false instrument to be filed with a
state public office.

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http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2003/a103622.html

To read the full text of this opinion, go to:[PDF File]
http://caselaw.lp.findlaw.com/data2/californiastatecases/a103622.pdf

INSURANCE LAW, LABOR & EMPLOYMENT LAW, WORKERS' COMPENSATION
CALIFORNIA INS. GUAR. ASS'N v. WORKERS' COMP. APPEALS BD., No B161056
(Cal. 2d App. Dist. March 30, 2004)
The Employment Development Department's (EDD) lien for mistakenly paid
temporary unemployment compensation disability benefits is an obligation
to a state and is thus not a "covered claim" that plaintiff is required
to pay per Insurance Code section 1063.1(c)(4).

To read the full text of this opinion, go to:
http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2003/b161056.html

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http://caselaw.lp.findlaw.com/data2/californiastatecases/b161056.pdf

INJURY AND TORT LAW, LABOR & EMPLOYMENT LAW
SALAZAR v. DIVERSIFIED PARATRANSIT, INC., No B142840, B144243 (Cal. 2d
App. Dist. March 30, 2004)
Because AB 76, adopted while this case was pending, merely clarifies
Fair Employment and Housing Act (FEHA) section 12940, it applies here;
thus, an employer may be held liable under the FEHA for sexual
harassment by clients or customers. Remanded for further proceedings.

To read the full text of this opinion, go to:
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http://caselaw.lp.findlaw.com/data2/californiastatecases/b142840.pdf

ATTORNEY'S FEES, CONSTRUCTION, CONTRACTS
SUPERIOR GUNITE v. MITZEL, No B158824 (Cal. 2d App. Dist. March 30,
2004)
Trial court's conclusion, based on a contract claim against defendant,
was incorrect because the parties were not in privity. Plaintiff is
entitled to contractual interest and attorney fees only on the $7,015
award for breach of the subcontract.

To read the full text of this opinion, go to:
http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2003/b158824.html

To read the full text of this opinion, go to:[PDF File]
http://caselaw.lp.findlaw.com/data2/californiastatecases/b158824.pdf

DISPUTE RESOLUTION & ARBITRATION, EVIDENCE, LABOR & EMPLOYMENT LAW
SAETA v. SUPERIOR COURT OF LOS ANGELES COUNTY (DENT), No B170305 (Cal.
2d App. Dist. March 30, 2004)
Statements made by a member of an employment termination review panel
during that panel's hearing are not protected by the privileges of
Evidence Code sections 703.5 and 1119, and the order compelling him to
testify does not violate his right to privacy under the California
Constitution. The proceeding, as constituted pursuant to an employment
contract, was neither an arbitration nor a mediation.

To read the full text of this opinion, go to:
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To read the full text of this opinion, go to:[PDF File]
http://caselaw.lp.findlaw.com/data2/californiastatecases/b170305.pdf

CONTRACTS, DISPUTE RESOLUTION & ARBITRATION, PROPERTY LAW & REAL ESTATE
GREENBRIAR HOMES CMTYS., INC. v. SUPERIOR COURT OF SAN JOAQUIN COUNTY
(COURIS), No C044210 (Cal. 3d App. Dist. March 30, 2004)
Reference provision in the real estate purchase contract is neither
procedurally nor substantively unconscionable, and the trial court
abused its discretion in not enforcing it against the original
purchasers based on the possibility of multiple lawsuits.

To read the full text of this opinion, go to:
http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2003/c044210.html

To read the full text of this opinion, go to:[PDF File]
http://caselaw.lp.findlaw.com/data2/californiastatecases/c044210.pdf

CRIMINAL LAW & PROCEDURE
PEOPLE v. LEWIS, No A098387 (Cal. 1st App. Dist. March 30, 2004)
Prosecutor did not commit misconduct by referring in questioning and
argument to defendant's failure to request a live lineup. Because
lineups do not implicate the right to remain silent, comment on the
failure to request a lineup is not prohibited.

To read the full text of this opinion, go to:
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To read the full text of this opinion, go to:[PDF File]
http://caselaw.lp.findlaw.com/data2/californiastatecases/a098387.pdf

ADMINISTRATIVE LAW, ATTORNEY'S FEES, LABOR & EMPLOYMENT LAW
SAMPSON v. PARKING SERV. 2000 COM, INC., No B163735 (Cal. 2d App. Dist.
March 30, 2004)
The term "civil action" in Labor Code section 1194 means only actions
filed in court, not administrative proceedings before the Labor
Commissioner to recover overtime wages. Because plaintiff elected to
pursue his administrative remedy, his right to recover attorney fees is
governed by section 98.2(c).

To read the full text of this opinion, go to:
http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2003/b163735.html

To read the full text of this opinion, go to:[PDF File]
http://caselaw.lp.findlaw.com/data2/californiastatecases/b163735.pdf

AUTOS, CRIMINAL LAW & PROCEDURE
PEOPLE v. SHAKHVALADYAN, No B165445 (Cal. 2d App. Dist. March 30, 2004)
There was insufficient evidence to support defendant's felony
conviction for evading a peace officer in violation of Vehicle Code
section 2800.2. There was no substantial evidence that a siren was
sounded or that the officer wore a uniform.

To read the full text of this opinion, go to:
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http://caselaw.lp.findlaw.com/data2/californiastatecases/b165445.pdf

ATTORNEY'S FEES, CIVIL PROCEDURE, INSURANCE LAW
CANAL INS. CO. v. TACKETT, No C044357 (Cal. 3d App. Dist. March 30,
2004)
District court erred in awarding plaintiff attorney fees from interest
that had accrued on interpleader funds it deposited with the court. If
plaintiff wanted to recoup its attorney fees and costs, Code of Civil
Procedure section 386 required it to make its desires known before being
discharged from liability so that a fee award could be made from the
amount deposited in the interpleader account.

To read the full text of this opinion, go to:
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http://caselaw.lp.findlaw.com/data2/californiastatecases/c044357.pdf

AUTOS, CRIMINAL LAW & PROCEDURE
FOLEY v. SUPERIOR COURT OF SAN DIEGO COUNTY (PEOPLE), No D043155 (Cal.
4th App. Dist. March 30, 2004)
Vehicle Code sections dealing with speed contests and exhibitions are
complimentary to San Diego Municipal Code section 52.5203(a), which
criminalizes spectatorship at such activities.

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http://caselaw.lp.findlaw.com/data2/californiastatecases/d043155.pdf

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