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Certain limited liability companies (LLCs) paid a levy under Revenue and Taxation Code section 17942, which was later determined by the court of appeal to be unconstitutional. After two separate actions seeking class treatment for the payment of refund claims were coordinated, the trial court rejected a jurisdictional argument from the Franchise Tax Board (FTB) that the LLCs had failed to adequately exhaust their administrative remedies as a class and could not proceed on a classwide basis. The court, however, went on to deny the motion for class certification on multiple other grounds, including lack of ascertainability, numerosity, predominance, and superiority. The court of appeal reversed. The court agreed with the trial court’s exhaustion determination but concluded that its class certification analysis was fundamentally flawed. The court deemed the matter “eminently suitable for treatment on a classwide basis.” There is no bar to certification of a class action for refund of unconstitutional taxes so long as all class members have filed their own individual claims and thereby exhausted their administrative remedies; no purpose would be served by erecting a jurisdictional barrier to class treatment of those claims on the formalistic ground that no class claim for refund was filed. View "Franchise Tax Board Limited Liability Corp. Tax Refund Cases" on Justia Law

Posted in: Class Action, Tax Law

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Defendant Brian Koback walked into a rental car company office and stole a set of car keys. Defendant would ultimately be charged with and convicted of robbery, assault with a deadly weapon, and resisting arrest. Defendant admitted he had suffered a strike conviction, and the trial court sentenced him to state prison for 14 years four months. On appeal, defendant argued: (1) his conviction for assault with a deadly weapon was not supported by substantial evidence because there was no evidence he used the car keys in a manner that was capable of inflicting and likely to cause great bodily injury; (2) the trial court abused its discretion by imposing consecutive sentences on the robbery and resisting arrest counts, under the mistaken belief that it could only impose concurrent sentences if it struck defendant’s strike prior; (3) the minutes of sentencing and abstract of judgment did not accurately reflect the oral pronouncement of sentence with respect to restitution and parole revocation fines; and (4) the minutes of sentencing contained a clerical error, in that they reflected that defendant admitted two strike priors instead of one. In the published portion of its opinion, the Court of Appeal concluded defendant’s conviction for assault with a deadly weapon was supported by substantial evidence: "a car key is not an inherently deadly or dangerous weapon, but if wielded as a makeshift weapon with sufficient force at close range, as defendant did here, a key is capable of puncturing skin and causing serious bodily injury." In the unpublished portion of this opinion, the Court concluded the trial court erred when it concluded the only way it could impose concurrent sentences on defendant’s robbery and resisting arrest convictions was if it first struck defendant’s admitted strike prior. The Court therefore reversed the sentence and remanded for the trial court to resentence defendant and to consider in the first instance whether concurrent sentencing was appropriate in this case. View "California v. Koback" on Justia Law

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RPB appealed from an order granting discovery sanctions after a motion to compel further responses to a deposition notice. In this case, BRI served a notice of motion and motion to compel within a statutory deadline, but did not serve any of the required supporting papers upon which the motion was based until 15 court days before the hearing. The Court of Appeal agreed with RPB that the motion was untimely. The court held that the 60 day deadline was mandatory and serving a notice of motion and motion to compel on December 6, 2016, without the supporting papers identified therein rendered the motion untimely. The court explained that there was no conflict between Code of Civil Procedure sections 1005 and 1010 in the context of section 2025.480, subdivision (b). Neither does the plain language of section 1010 allow for BRI’s interpretation that a notice of motion and motion alluding to other papers but not attaching them somehow satisfied section 1005.5. View "Weinstein v. Blumberg" on Justia Law

Posted in: Civil Procedure

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In an issue of first impression, the Court of Appeals addressed whether Family Code section 4504(b) required derivative benefits received by the child of a disabled parent to be credited against a noncustodial obligor's child support. In this case, the Social Security Administration (SSA) took six years to approve Father's application. In 2015, it made a lump-sum payment for past-due derivative benefits to custodial parent Y.H. (Mother), as Daughter's representative payee. In the intervening six years, Father had continued to pay child support and was not in arrears. The Court of Appeals held section 4504 (b) indeed permitted retroactive child support credit from Daughter's lump-sum payment where there was no child support arrearage. View "Y.H. v. M.H." on Justia Law

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Petitioners sought a writ of mandate directing the superior court to vacate its order denying their motion for summary judgment and issue an order granting the motion. The Court of Appeal issued a stay pending this court's resolution of the petition and an order to show cause why a writ of mandate should not issue. In this case, real party in interest's complaint alleged that petitioners' breakfast cereals were required by California's Proposition 65 to display cancer and reproductive harm warnings because they contain acrylamide. The court held that the Proposition 65 claim was preempted by federal law and granted the petition. The court directed the superior court to vacate its order denying petitioners' motion and enter a new and different order granting the motion. View "Post Foods, LLC v. Superior Court" on Justia Law

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Littlejohn sought to sue Costco, the California Board of Equalization, and Abbott to recover sales tax on purchases of Abbott’s product Ensure. Littlejohn alleged that Ensure is properly categorized as a food; no sales tax was actually due on his purchases; Costco was under no obligation to pay and should not have paid sales tax on its sales of Ensure. The complaint alleged that during the period in question Ensure was classified as a food product exempt from sales tax, not a nutritional supplement. Littlejohn based his claim on a 1974 California Supreme Court decision, Javor. The trial court concluded that the judicially noticed documents in the record showed the Board had not resolved the question of whether Ensure was nontaxable during the relevant period.. The court held that the documents were entitled to deference, but did not have the same force of law as Board regulations and were not binding. The court of appeal affirmed, reasoning that the case does not involve allegations of unique circumstances showing the Board has concluded consumers are owed refunds for taxes paid on sales of Ensure. A Javor remedy should be limited to the unique circumstances where the plaintiff shows that the state has been unjustly enriched by the overpayment of sales tax, and the Board concurs that the circumstances warrant refunds. View "Littlejohn v. Costco Wholesale Corp." on Justia Law

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Plaintiffs-appellants Angela Belfiore-Braman and Stephen Braman appealed a defense judgment entered on a jury verdict, in their medical malpractice action against orthopedic surgeon, defendant-respondent D. Daniel Rotenberg, M.D. The jury found Defendant was not negligent in the care and treatment of Ms. Belfiore-Braman during the hip replacement surgery he performed on her, and accordingly, it did not answer the special verdict's question on whether such negligence was a substantial factor in causing injury to her, or loss of consortium to her husband and fellow plaintiff. The issues on appeal centered around the trial court's ruling in limine, after a hearing under Evidence Code section 402, that excluded certain medical opinion testimony Plaintiff offered on issues of causation and damage, from her recently designated nonretained expert witness. The court determined that the proposed testimony would be unduly duplicative within the meaning of section 723. Instead, the nonretained expert witness would be allowed to testify to the jury only as to his observations from an imaging study he performed and what the test results revealed to him about Plaintiff's condition. Plaintiff argued to the Court of Appeal this ruling in limine unfairly prevented her from making a showing that Defendant's alleged negligent acts were a substantial factor in causing her injuries. However, the Court concluded the record supported the ruling: Plaintiff could not show the trial court abused its discretion in precluding the offered testimony on causation and damage. View "Belfiore-Braman v. Rotenberg" on Justia Law

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Plaintiff L.G. is the former nanny for M.B. and M.B.'s ex-husband, S.B. L.G. filed suit against M.B. for defamation, invasion of privacy, and intentional infliction of emotional distress based upon statements that M.B. made about her in a declaration filed in support of M.B.'s request for a domestic violence restraining order in her dissolution action. On appeal, M.B. challenged the trial court's denial of her motion to dismiss under the anti-SLAPP statute. The Court of Appeal affirmed and held that the divorce proviso applied in this case. The court also held that M.B.'s success in obtaining two temporary restraining orders—one against S.B. in the dissolution action and one against L.G. in a separate civil harassment action—did not establish as a matter of law that there was "reasonable and probable cause" to believe that M.B.'s challenged statements about L.G. were true. Furthermore, the record did not contain sufficient information concerning the reasons for the two temporary restraining orders to permit a conclusion that the judges who granted those orders actually made any findings concerning the facts underlying the particular statements that L.G. challenged in this action. Finally, the court held that M.B.'s appeal was not frivolous or solely intended to cause unnecessary delay. Therefore, the court denied L.G.'s request for attorney fees. View "L.G. v. M.B." on Justia Law

Posted in: Personal Injury

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The Court of Appeal affirmed the trial court's judgment against plaintiff in an action alleging that Hughes violated the California Disabled Persons Act (DPA). Plaintiff alleged that under the DPA, the store was obliged to designate an accessible path of travel from the street to the store’s entrance that did not require wheelchair-bound patrons to travel behind parked vehicles. The court found no error in the trial court's conclusion that the 2013 CBSC standards applied to all the incidents identified in the first amended complaint; under the 2013 CBSC standards, Hughes was not required to provide an accessible route that did not pass behind parked cars for persons using wheelchairs; and the trial court did not err by determining that plaintiff failed to plead a signage-based claim. View "Baskin v. Hughes Realty, Inc." on Justia Law

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A jury convicted Antonio Torres of two counts of committing a lewd act with a minor under 14 years old, and found true the allegations that he had substantial sexual conduct with the minor. The court sentenced him to a total term of eight years and ordered him to pay various fines and fees, including victim restitution. Torres' appointed appellate counsel presented no argument for reversal, but asked the Court of Appeal to review the record for error on whether: (1) defense counsel was ineffective for failing to raise Miranda1 and voluntariness of confession issues; (2) sufficient evidence supported the lewd conduct and substantial sexual conduct findings; (3) the trial court erred by admitting a forensic interview into evidence; (4) the court erred when it gave the jury a pinpoint instruction defining masturbation; (5) the court erred by imposing the middle term sentence rather than the lower term sentence; and (6) the court erred by imposing consecutive sentences. The Court concluded that while the interrogation was not custodial when it began, the totality of the circumstances showed that it became custodial, and Torres should have received Miranda warnings when the detectives essentially told Torres that they would not leave, and he could not go home, until Torres told them the truth based on the evidence they had against him. The Court also concluded Torres would have prevailed on a suppression motion, and that the failure to file a suppression motion was prejudicial. Therefore, the Court reversed the judgment based on ineffective assistance of counsel. Accordingly, it was unnecessary for the Court to consider the other issues raised. View "California v. Torres" on Justia Law