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After years of investigation, the San Diego Regional Water Quality Control Board (Regional Board), issued a cleanup and abatement order (CAO) to San Diego Gas & Electric Company (SDG&E) and several other entities, in connection with a power plant’s operations that discharged waste into the San Diego Bay. The Regional Board found that SDG&E caused or permitted waste to be discharged into the Bay and thereby created, or threatened to create, pollution and nuisance conditions. SDG&E contested its designation as a responsible "person" under Water Code section 13304 (a), and petitioned for a writ of mandate to have the CAO vacated. The superior court denied the writ. SDG&E argued then, as it did before the Court of Appeal, that shipyard companies comparatively discharged greater amounts of pollutants into the Bay and that two appellate opinions required application of the "substantial factor" causation test to determine whether SDG&E created or threatened to create a condition of pollution or nuisance. The Court of Appeal found it was undisputed that SDG&E directly discharged and thus "caused or permitted" waste to enter the Bay, distinguishing the aforementioned appellate cases. Further, the Regional Board adequately demonstrated that the waste discharged by SDG&E created, or threatened to create, a condition of pollution or nuisance. Accordingly, the Court affirmed the judgment. View "San Diego Gas & Electric Co. v. San Diego Regional Water etc." on Justia Law

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Hoag, a Newport Beach acute care hospital whose patients include beneficiaries of California’s Medi-Cal program, was audited by the California Department of Health Care Services. Hoag’s cost report for fiscal year 2009 included $2,413,623 in audit reimbursement reductions mandated by Assembly Bill (AB) 5 and AB 1183. Hoag filed an administrative appeal that was a blanket challenge to the legality of those assembly bills and the legality of the reimbursement reductions based upon them. Over 18 months later, Hoag submitted a second administrative appeal regarding an alleged $620,903 calculation error that it requested be “incorporated” into the open administrative appeal. Hoag alleged that if its global challenge failed, the $2,413,623 reduction should not include $620,903 stemming from an erroneous calculation of Medi-Cal days subject to the reductions required by the assembly bills. The Department’s Office of Administrative Hearings and Appeals dismissed the administrative appeal of the alleged calculation error as untimely. The court of appeal affirmed. Hoag’s legal challenge to the Medi-Cal audit reduction is a separate issue from its challenge to the alleged calculation error and was, therefore, untimely. View "Hoag Memorial Hospital Presbyterian v. Kent" on Justia Law

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Orozco opened Pauly’s Famous Franks N Fries at San Jose's "The Plant" shopping center. Before signing a 10-year lease, he asked the leasing manager whether restaurants with competing concepts or products were being considered for the remaining space. The manager told him no, even as she was negotiating with Al’s Beef, a national franchise selling hot beef sandwiches, hot dogs, and french fries. Orozco signed the lease without knowledge that the Plant had leased space to Al’s and personally guaranteed rent payments. The lease, which Orozco did not fully read, contained statement that the landlord had not made any promises about products offered by other tenants or future tenants. Pauly’s had a successful debut, with steadily increasing revenue. Approximately six months after Pauly’s opened, Al’s opened two doors down. Pauly’s business declined and, within six months of the debut of Al’s, Pauly’s closed. A jury found intentional misrepresentation and concealment and awarded compensatory damages, primarily for Pauly’s lost profits. The court ruled that Orozco was not entitled to rescission of the guaranty. The court of appeal affirmed in part. Substantial evidence supports the finding of intentional misrepresentation and the award of lost profits. Orozco was entitled to rescission of the guaranty. Because Orozco prevailed in obtaining rescission of the guaranty, he is entitled to attorney’s fees under the lease. View "Orozco v. WPV San Jose, LLC" on Justia Law

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Brandon M. was taken to Riverside County Medical Center by the Corona Police Department for an involuntary hold, pursuant to Welfare and Institutions Code section 5150. He was released before 72 hours had elapsed, and he returned home, where he bludgeoned three people to death with a baseball bat. Surviving family members, who were successors in interest or heirs, (collectively Respondents) filed lawsuits against the County of Riverside (County) for his release, alleging negligence. The County filed a special motion to dismiss under Code of Civil Procedure section 425.16, the anti-SLAPP statute. The County contended the complaints should have been struck because they alleged harm arising from protected activity and because Respondents could not show a reasonable probability their suit would be successful on the merits. Respondents countered that the County's actions did not arise from any petition or speech-related activity and so were not subject to the anti-SLAPP statute. The trial court denied the County's motion, and the County appealed. The Court of Appeal affirmed the trial court's ruling that the anti-SLAPP statute did not apply in this instance. View "Swanson v. County of Riverside" on Justia Law

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Defendant-appellant Tanner Polk, an inmate at the California Rehabilitation Center in Norco, was found in his cell with eight small pieces of cut-up and numbered paper, along with a greeting card. The correctional officer had learned from other prison officers during routine training that a current trend in the prisons was the possession of methamphetamine-infused paper. A preliminary test at the prison revealed the presence of methamphetamine on one piece of paper and on a small corner of the greeting card. The paper was tested at a laboratory, and some of the papers were found to contain methamphetamine; the remainder of the greeting card tested negative. Defendant was found guilty of possession of methamphetamine while in prison. Defendant admitted he had suffered one prior serious or violent felony conviction. Defendant was sentenced to six years in state prison. On appeal, defendant argued: (1) insufficient evidence was presented to support that he possessed a usable amount of methamphetamine and he had knowledge that it was methamphetamine, to support his conviction of violating Penal Code section 4573.6; (2) the correctional officer should not have been allowed to testify as to whether the papers contained a usable amount of narcotics as his testimony was speculative and lacked foundation; (3) the trial court deprived defendant of a right to present a defense by refusing to allow him to properly address the quantity of methamphetamine found on the papers; (4) cumulative errors warrant dismissal; and (5) the trial court erred by denying his Romero motion to dismiss his prior strike conviction. Finding no reversible error, the Court of Appeal affirmed conviction. View "California v. Polk" on Justia Law

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Mother has legal and physical custody of the child. Father was ordered to pay one-half of reasonable childcare costs. Mother sought an order, directing Father to pay one-half of childcare costs incurred while she attended a paralegal program. She was employed in a law office as a receptionist/assistant working 28 hours per week. Mother explained that since 2011, when she was laid off from a job due to government budget cuts, she had been unable to secure stable employment. She supplemented her income with public assistance. She anticipated that paralegal certification would provide the skills to secure permanent employment and become fully self-supporting without public assistance. Father argued that Mother was able to secure employment with her existing job skills and was not required by her employer to increase her skills, sp her decision to pursue paralegal studies was a personal choice unrelated to her “employment or to reasonably necessary education or training for employment skills.” The court denied Mother’s request. The court of appeal concluded that section 4062 applies “to a situation where a party is employed with marketable skills and is electing to improve their skills through education.” The statute’s plain language does not restrict “employment” or “employment skills” to current employment, or to general principles governing child support awards. View "Greiner v. Keller" on Justia Law

Posted in: Family Law

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Wife moved out of the couple's joint tenancy property and sought dissolution of marriage. The summons included an automatic Family Code section 2040 order, prohibiting the parties from transferring property without the other party's written consent or court order. "Before .... a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party.” WIfe subsequently created a Trust, naming Raney, as the trustee and the sole beneficiary upon her death. Wife recorded a Deed, stating that she severed the joint tenancy pursuant to Civil Code 683.2; it transferred her interest to Raney, as trustee. Wife notified Husband that she had terminated the joint tenancy. Raney, as trustee, sought partition by sale. Meanwhile, Wife died. The court of appeal affirmed that severance of the joint tenancy substantially complied with the notice requirement but that the transfer to the Trust violated the automatic restraining order. It reformed the Deed to severing the joint tenancy only, concluding that Raney, as personal representative of Wife's estate, is the owner of an undivided one-half interest and entitled to an order of partition by sale. Parties to pending dissolution proceedings are restrained from unilaterally eliminating a right of survivorship unless, in addition to the general. When the Partition Complaint was filed and served on Husband, Wife’s severance of the joint tenancy became effective to eliminate the right of survivorship. When WIfe died, her tenancy in common interest was her separate property and became part of her estate. View "Raney v. Cerkueira" on Justia Law

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The Center for Biological Diversity appealed the denial of its petition for a writ of mandate challenging an environmental impact report (EIR) prepared by the California Department of Conservation, Division of Oil, Gas and Geothermal Resources (Department) pursuant to a law known as Senate Bill No. 4. (Stats. 2013, ch. 313, sec. 2, enacting Sen. Bill No. 4; hereafter, Senate Bill No. 4.) Senate Bill No. 4 added sections 3150 through 3161 to the Public Resources Code to address the need for additional information about the environmental effects of well stimulation treatments such as hydraulic fracturing and acid well stimulation. As relevant here, Senate Bill No. 4 required the Department to prepare an EIR “pursuant to the California Environmental Quality Act ([Public Resources Code] Division 13 (commencing with Section 21000) [CEQA]), to provide the public with detailed information regarding any potential environmental impacts of well stimulation in the state.” The Department prepared and certified an EIR. The Center filed a petition for writ of mandate and complaint for declaratory and injunctive relief, challenging the EIR under CEQA and Senate Bill No. 4. The trial court sustained a demurrer to the Center’s cause of action for violations of CEQA, and subsequently denied the petition for a writ of mandate. The Court of Appeal found no reversible error in the denial of mandamus relief and affirmed. View "Center for Biological Diversity v. CA Dept. of Conservation" on Justia Law

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Citizens submitted a referendum petition to challenge Amador Water Agency’s Board Resolution No. 2015-19, adopting new water service rates for Agency customers. The Clerk of the Agency rejected the referendum petition and refused to place it on an election ballot, on the grounds that: (1) the petition was “confusing;” and (2) the rate change, while subject to challenge by initiative, was not subject to referendum. Appellants Howard Jarvis Taxpayers Association, Charlotte Asher, and Laura Boggs appealed the trial court’s denial of their petition for a peremptory writ of mandate against Amador Water Agency, its Clerk, and its Board of Directors (collectively “the Agency”). Appellants argued: (1) the Clerk exceeded her ministerial duties by declaring the petition confusing; and (2) referendum was an appropriate avenue to challenge the new water rates. After review, the Court of Appeal determined: (1) the Clerk exceeded the scope of her ministerial duty and should have certified the referendum petition as adequate; and (2) the Resolution was not subject to referendum. The Court reached a different conclusion in a different case currently under California Supreme Court review. Because the Court concluded the Resolution was not subject to referendum, it affirmed the judgment denying the writ petition. View "Howard Jarvis Taxpayers Assn. v. Amador Water Agency" on Justia Law

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The Medical Board of California sought the medical records of three minors for whom Dr. Kennedy provided vaccination exemptions. After Kennedy refused to produce the records, the Director superior court granted a petition under Government Code section 11187 and ordered Kennedy to produce the records. The court denied Kennedy’s request to stay the order while he pursued appellate review. The court of appeal denied Kennedy’s petition for a writ of supersedeas, rejecting Kennedy’s argument under Code of Civil Procedure section 917.2, which operates automatically to stay an order directing “the assignment or delivery of personal property, including documents,” if the appellant posts an undertaking. The automatic stay provisions apply to civil actions but do not ordinarily apply to a special proceeding. The underlying petition to enforce an administrative subpoena is a special proceeding because it is “established by statute” and commenced independently of a pending action by petition. The court noted that its interpretation is consistent with federal law. An automatic stay would impede the Board’s discharge of its duty to “protect the public against incompetent, impaired, or negligent physicians.” Kennedy has not shown a discretionary stay is warranted; it is likely that the court acted within its discretion in finding the Board’s interest in obtaining records of vaccination exemptions outweighed the patients’ privacy rights, given that the Board must keep the records confidential during its investigation. View "Kennedy v. Super. Court" on Justia Law