Daniel J. Kremer

In People v. Felix, a jury convicted the defendant of carjacking, taking a vehicle without permission, receiving stolen property, and giving false information to a peace officer, and found he had personally used a firearm during the carjacking. The trial court imposed a nine-year sentence that included a four-year firearm enhancement under Penal Code section 12022.5 instead of the ten-year enhancement under section 12022.53, subdivision (b), ruling that the longer term would constitute cruel or unusual punishment given the defendant's age, lack of criminal history, and psychological profile. On appeal by the People, the Court of Appeal affirmed the convictions but held that the ten-year enhancement was mandatory and not cruel or unusual as applied, because the carjacking involved a gun pressed against the victim and the defendant's circumstances were not comparable to cases where reduced punishment was warranted; the court therefore reversed the sentence and remanded for resentencing. The opinion focuses on statutory interpretation of firearm enhancements and application of the cruel or unusual punishment standard under the California Constitution.

criminal lawguns

The case involved a patient, Jeffrey Conte, who sued orthopedic surgeons for medical battery and malpractice after shoulder surgery for a fracture from a motocross injury. Conte claimed he consented only to open reduction internal fixation repair, but the surgeon performed arthroscopic evaluation, found less displacement than expected, and decided not to repair, leaving the fracture to heal without fixation. The trial court granted nonsuit on the battery claim after Conte's case-in-chief, and the jury found no negligence on the malpractice claim. The appellate court affirmed, reasoning that there was no evidence of an express condition on consent that was violated and that the signed consent form broadly authorized the doctor to perform advisable procedures.

healthcaretorts & liabilityprocedure

The case Davis v. City of San Diego concerned whether the city could publicly release narrative reports prepared by its Citizens’ Review Board on Police Practices about a fatal police shooting incident involving several officers. Plaintiffs, including the affected officers and their association, petitioned for a writ of mandate to block disclosure, contending the reports qualified as confidential personnel records under Penal Code sections 832.5, 832.7, and 832.8. The court granted the writ and later awarded attorney fees, ruling that the Board reports were statutorily confidential and could not be voluntarily released by the city except through formal discovery procedures. The core reasoning was that the reports fell within the statutory definition of personnel records maintained pursuant to section 832.5 and were therefore protected from public dissemination by section 832.7, with local charter provisions unable to override state confidentiality rules.

criminal lawprocedure

The case involved Mac David Cochran, who was convicted after a court trial of 27 counts of aggravated sexual assault of a child, 10 counts of forcible lewd conduct with a child under 14, and one count of employing a minor to produce pornography for commercial purposes, based on evidence of him sexually abusing his young daughter and videotaping the acts which he posted online. Cochran appealed, arguing insufficient evidence of force or duress for the assault and lewd conduct counts, and insufficient evidence of commercial purpose for the pornography count. The Court of Appeal initially affirmed the sex offense convictions but reversed the pornography conviction for lack of commercial purpose evidence; however, after the California Supreme Court reversed that holding and found sufficient evidence of commercial purpose, the Court of Appeal affirmed the entire judgment.

criminal lawfamily law

The case involved the Redevelopment Agency of the City of San Diego seeking to recover costs under the Polanco Redevelopment Act from the Salvation Army for remediating hazardous substances on property the Army owned in a redevelopment area. After the Army failed to respond to notices and submit a proposed remedial action plan within statutory deadlines, the Agency performed the cleanup work with regulatory approvals and pursued cost recovery following settlement of eminent domain claims. The trial court ruled for the Agency on its Polanco Act claim, and the appellate court affirmed. The court reasoned that the Agency had satisfied Polanco Act requirements by providing proper notices, obtaining necessary approvals consistent with CERCLA standards and the national contingency plan, and that the Army was a responsible party that did not submit any remediation plan.

environmentpropertyprocedure

This case involved a juvenile dependency petition filed by the San Diego County Health and Human Services Agency regarding newborn S.O., based on prior incidents of domestic violence and sexual abuse by the presumed father Enrique against the child's older siblings, including repeated physical assaults on the mother in front of the children and sexual abuse of one daughter. The mother appealed the juvenile court's dispositional order declaring S.O. a dependent child under Welfare and Institutions Code section 300, subdivisions (b) and (j), while allowing her to retain custody, arguing that the petition failed to state a cause of action and lacked substantial evidence of current risk to the child. The Court of Appeal affirmed the order, holding that substantial evidence supported the jurisdictional findings because the mother had not fully addressed protective issues, continued to show poor judgment regarding contact with Enrique, and had not demonstrated consistent ability to protect the children without court involvement. The court rejected claims of inconsistency between the jurisdictional finding and placement with the mother, noting that the situation did not involve improper removal and immediate return to parental custody.

family law

In Nairne v. Jessop-Humblet, a beneficiary of the Humblet Family Trust petitioned for a determination that his proposed complaint—alleging an oral agreement with the settlors to transfer specific trust property to him—would not violate the trust's no contest clause. The trial court ruled the complaint would not constitute a contest, but the Court of Appeal reversed. The appellate court held that the broadly worded no contest clause applied because the action sought to void or set aside trust provisions regarding property specifically enumerated in the trust, which would thwart the settlors' intent. The decision turned on strict construction of the clause's language and comparison to precedents like Burch v. George and Varney v. Superior Court.

propertyfamily lawprocedure

This case arose from a class action lawsuit by homeowners against Pardee Construction Company alleging construction defects in their homes. Pardee sought to enforce provisions in the purchase agreements requiring disputes to be resolved through judicial reference by a retired judge rather than a jury trial in court. The superior court denied the motion, finding the agreements were contracts of adhesion that were procedurally and substantively unconscionable, that the punitive damages waiver violated public policy, and that the provisions conflicted with policies against compelling homeowners into alternative dispute resolution for construction defect claims. On review, the Court of Appeal concluded the agreements were adhesive and infected with unconscionability on this record and therefore denied Pardee's petition for a writ of mandate directing enforcement of the judicial reference clauses.

propertyproceduretorts & liabilitybusiness & regulatory

The case involved several California union health and welfare trust funds suing tobacco manufacturers and related entities for negligent misrepresentation and intentional fraud, claiming the defendants concealed the health risks and addictive qualities of their products, which led to higher medical costs for beneficiaries. The Court of Appeal affirmed the trial court's dismissal of the coordinated lawsuit after sustaining a demurrer without leave to amend to the negligent misrepresentation claims. It also held that former Civil Code section 1714.45, which granted tobacco companies immunity from certain product liability actions, barred the intentional fraud claims based on nondisclosure or concealment. The court dismissed one defendant's separate appeal regarding personal jurisdiction as moot. The reasoning centered on the statutory immunity applying to the fraud allegations arising from tobacco product sales and the lack of viable claims under the pleaded facts.

torts & liabilityhealthcarebusiness & regulatory

Park Medical Pharmacy sued San Diego Orthopedic Associates Medical Group, alleging that the group's practice of dispensing prescription drugs directly to its workers' compensation patients on a for-profit basis violated Business and Professions Code section 4170 by effectively operating a pharmacy. The trial court granted summary judgment to the Medical Group. The Court of Appeal affirmed, concluding that the statutory language permits individual physicians to dispense medications to their own patients under the listed conditions without amounting to keeping a pharmacy. The court reached this result through plain-meaning statutory interpretation, noting that the relevant provisions focus on patient-specific dispensing rather than retail operations and that legislative history did not support a broader prohibition on for-profit sales.

business & regulatory

In Bustillos v. Murphy, Luis Bustillos sought a prescriptive easement over a network of trails on Michael Murphy's undeveloped property, which he and others had used since 1973 for recreational activities such as motorcycling, walking, horseback riding, and walking dogs. The trial court granted summary judgment denying the easement, and the Court of Appeal affirmed. The court held that Civil Code section 1009 bars recreational use of private property by the public from ripening into a permanent vested right absent an express written offer of dedication accepted by a public body. Bustillos's claim was treated as a public use claim because the property had been used by many people without any distinguishable private interest, and granting the easement would confer permanent recreational rights on him and the public generally.

property

This case involved a former associate attorney who sued his law firm for wrongful termination in violation of public policy after his employment was ended for performance reasons. The plaintiff had signed an arbitration agreement covering employment disputes when he started as a law clerk, and the firm moved for summary judgment asserting the agreement barred the lawsuit. The trial court initially granted summary judgment, finding the agreement valid, enforceable, and applicable to the full employment relationship, but later granted a new trial on grounds not raised by the plaintiff. The Court of Appeal reversed the new trial order, affirmed the summary judgment, and remanded for proceedings to assess whether the plaintiff had retained or waived arbitration rights, holding that the agreement was not unconscionable and that the trial court's new trial rationale rested on incorrect legal principles.

labor & employmentprocedure

This eminent domain case involved Caltrans condemning real property and business inventory from Manchester Auto Salvage to widen a freeway, with the sole issue at trial being the fair market value of the inventory under Code of Civil Procedure section 1263.310. The trial court excluded testimony from Caltrans's appraiser, who valued the inventory at wholesale after adjustments for profit and unsaleable items ($439,220), allowing only Manchester's retail-based valuation ($2,178,390), which the jury adopted. On appeal, the court reversed the judgment and related costs order, holding that the excluded opinion rested on a proper legal standard for fair market value and had adequate evidentiary foundation to go to the jury. The decision emphasized that potential wholesale transactions and adjustments for enhanced value from refurbishment could be considered without violating the statutory definition.

propertyprocedure

In People v. Borja, the People appealed a trial court order that reduced a defendant's sentence from 365 to 364 days nunc pro tunc as a condition of probation for a 1994 driving-under-the-influence conviction, even though the probation term had expired years earlier. The defendant sought the reduction to avoid immigration consequences arising from 1996 changes in federal law that treated such convictions as aggravated felonies. The Court of Appeal reversed, concluding the trial court lacked jurisdiction to modify the fully served sentence, no clerical error existed to support a nunc pro tunc order, and potential immigration effects did not authorize a state court to retroactively alter the conviction record.

criminal lawimmigrationprocedure

This case involved Thomas Lynch suing his former criminal defense attorney, Thomas Warwick, for legal malpractice, breach of contract, and breach of fiduciary duty, alleging inadequate representation in criminal proceedings that led to Lynch hiring new counsel and pleading guilty. The trial court granted summary judgment to Warwick, and the Court of Appeal affirmed. The court held that to pursue such claims arising from criminal defense representation, the plaintiff must establish his actual innocence of the underlying charges, as required by California precedent like Wiley v. County of San Diego, because allowing recovery without innocence would improperly shift responsibility for the crime. The requirement applies regardless of whether the damages sought are out-of-pocket expenses like attorney fees.

criminal lawtorts & liabilityprocedure

The case involved a wrongful death lawsuit by the family of a man killed during a robbery in the parking lot of a Bank of America branch, based on a claim that the bank was negligent in providing inadequate security despite prior similar incidents on the premises. The jury found that the bank was negligent but that the assault would not have been prevented even if the bank had used non-negligent security measures, resulting in a defense judgment. The Court of Appeal reversed, holding that the trial court's answer to the jury's question about the special verdict form erroneously required an absolute prevention standard for causation instead of the substantial factor test required by precedent.

torts & liabilityprocedure

In this case, the California Medical Association, as assignee of physicians' claims, sued Aetna and related health plans for unpaid fees for medical services provided to plan enrollees. The physicians had contracted with intermediaries that became insolvent and failed to pay, even though Aetna continued paying the intermediaries and receiving premiums from enrollees. CMA asserted claims under Health and Safety Code section 1371 for timely reimbursement, the unfair competition law, and quasi-contract for the reasonable value of services. The trial court sustained demurrers without leave to amend to the section 1371 and UCL claims, allowed amendment to attempt a quasi-contract claim, then sustained the demurrer to that claim as well and dismissed the action; the Court of Appeal affirmed. The court held that section 1371 did not impose the alleged duties on the plans and that valid express contracts between the parties covering the same subject matter barred any quasi-contract recovery.

healthcarebusiness & regulatory

The case involved Mac David Cochran, who was convicted after a court trial of 27 counts of aggravated sexual assault of a child, 10 counts of forcible lewd conduct with a child under 14, and one count of employing a minor to produce pornography for commercial purposes, based primarily on a videotape of sexual acts with his young daughter that he posted online. On appeal, Cochran challenged the sufficiency of the evidence supporting the use of force or duress for the assault and lewd conduct convictions, as well as the evidence of a commercial purpose for the pornography count. The court affirmed the assault and lewd conduct convictions, holding that duress was shown through the defendant's parental authority, the victim's compliance, and implied threats of consequences if she disclosed the acts. It reversed the pornography conviction, finding no evidence that the defendant acted with a commercial purpose when creating or posting the images. The court explained that the statutory requirement of commercial purpose was not satisfied by mere distribution or the possibility of future commercial use by others.

criminal law

This case involves the division of assets in the divorce of Carol and William Duncan, who acquired the majority of shares in their investment advisory business Duncan-Hurst during their 1989-1994 marriage. The trial court found the business to be community property and valued it at the date of separation under Family Code section 2552(b) because post-separation growth resulted from William's personal reputation and management skills, leading to a $25.5 million valuation and an award to Carol of roughly half the community interest plus support payments. Carol appealed the valuation date and denial of attorney fees under section 2030, while William challenged the valuation method, but the appellate court affirmed all rulings after reviewing the evidence of William's central role in the company's operations. The decision rested on the statutory exception allowing alternate valuation dates when a spouse's efforts cause value changes after separation, with no basis found to alter the trial court's discretionary findings.

family lawproperty

The case involved Larry Barker's wrongful death lawsuit against Brown & Williamson Tobacco Corporation over his father's 1962 death, which the trial court dismissed as barred by the statute of limitations after sustaining a demurrer. Barker argued that the Legislature's 1997 amendments to Civil Code section 1714.45 removed the statutory immunity for tobacco products, abrogated or revived the limitations period for such claims, or that the company's concealment of facts tolled the period. The Court of Appeal affirmed the dismissal, holding that the amendments eliminated the prior immunity for tobacco manufacturers but did not expressly abrogate, extend, or retroactively revive already time-barred claims, and that the plain language of the statute showed no intent to override the limitations period. The court further noted that policy arguments about lost evidence or concealment were matters for the Legislature, and Barker had not amended his complaint to pursue alternative theories like breach of warranty.

torts & liabilityprocedure