Dennis M. Perluss

In this case, Danny Hare, serving an indeterminate sentence of 15 years to life for a 1980 second-degree murder conviction, had his 2009 grant of parole by the Board of Parole Hearings reversed by the Governor. The superior court granted Hare's habeas petition, ruling the Governor's reversal untimely and unsupported by some evidence of current dangerousness. On appeal by the warden, the Court of Appeal reversed, holding that a one-day delay in the Governor's review did not deprive him of authority or violate due process, and that the superior court's findings on the evidence were erroneous. The court emphasized that the constitutional liberty interest in parole requires only some evidence of dangerousness after individualized review, not strict adherence to timing that would strip jurisdiction.

criminal lawprocedure

Three union-represented construction workers sued their former employer, Total Western, Inc., on behalf of themselves and a putative class, alleging failure to provide required second meal periods under Labor Code section 512 and IWC wage order 16, and seeking premium wages under section 226.7 plus relief for unfair business practices. The superior court granted the employer's motion for summary adjudication on the premium-wage claim, relying on Bearden v. U.S. Borax to hold that the invalid exemption in wage order 16, section 10(E) barred liability under section 226.7 while denying summary adjudication on the unfair-practices claim. The Court of Appeal held that Bearden's prospective invalidation of the exemption does not prevent recovery of premium pay for missed meal periods under section 226.7, and directed the superior court to deny the motion for summary adjudication on the fifth cause of action.

labor & employment

The case involved the estate of Motion Graphix founder Richard Corrales, which sued the buyer Get Flipped, its founder Raleigh Souther, and sought to add the company's former corporate counsel Katten Muchin as defendants, alleging claims such as conversion, breach of fiduciary duty, fraud, and conspiracy arising from an asset sale after Corrales's death. The estate also filed a separate derivative action on behalf of the company against the attorneys for professional negligence and related claims, which the trial court dismissed after sustaining a demurrer. The appellate court reversed the denial of leave to amend the individual action, directing that the estate be permitted to allege conspiracy to commit fraud against the attorneys, and reversed the dismissal of the derivative action, remanding for redetermination of whether attorney-client privilege barred the claims or was overcome by the crime-fraud exception or waiver.

business & regulatoryproceduretorts & liability

The case involved Martin O.'s petition to terminate the parental rights of Jose T. under Family Code section 7822 on grounds of abandonment, as a step toward adopting the three children who had been in the care of their mother and Martin O. for over eight years. Jose T., incarcerated in Mexico, appealed the termination judgment, arguing it was void due to lack of personal jurisdiction from improper service under the Hague Service Convention. The court affirmed the judgment, holding that Jose T. had made a general appearance through his appointed counsel at multiple pretrial hearings without objecting to service or jurisdiction. This appearance constituted consent to the court's exercise of personal jurisdiction, rendering the service issue irrelevant. The decision rested on established principles that a general appearance waives defects in service of process.

family lawprocedure

GreenLake Capital sued Bingo Investments to recover a $3 million success fee under a 2006 letter agreement for identifying and procuring a $150 million credit facility from lenders including First Capital and West LB. Bingo moved for summary judgment on the ground that GreenLake lacked a California real estate broker license required by Business and Professions Code section 10131, and the trial court granted the motion. The Court of Appeal reversed, holding that the licensing statute does not automatically bar recovery for services that involve structuring and negotiating a credit facility that may include non-real-estate elements such as mezzanine financing, and that recent decisions interpreting the statute created an exception to any forfeiture rule that might otherwise apply. The court concluded there were triable issues whether the transaction fell within the statute’s reach, so summary judgment was improper.

business & regulatoryproperty

The case involved a commercial landlord's unlawful detainer action against its tenant after the landlord sent a five-day notice to pay rent or quit via email, fax, and certified mail to the tenant's leasing manager. The lease authorized electronic service of notices but required them to be directed to a specific street address designated by the parties, which the landlord did not use; the tenant had previously provided a change-of-address notice under the lease. Although the tenant actually received the notice and attempted to cure by sending payment, the trial court granted the tenant's motion for summary judgment, and the Court of Appeal affirmed. The court held that the landlord failed to present evidence of proper service to the lease-specified address and that actual receipt did not constitute a waiver of the lease's notice requirements, which expressly govern service in this commercial context.

propertyprocedure

Carolina Casualty Insurance Company issued a legal malpractice policy to L.M. Ross Law Group and sought to recover the $175,000 it paid to settle a malpractice claim brought against the firm by Diversified Entertainment Co. (DEC). The firm cross-claimed for the $75,000 it had contributed to the settlement. The trial court granted summary judgment to Carolina Casualty, and the Court of Appeal affirmed, holding that policy exclusions barred coverage. The court reasoned that exclusion F applied because the firm's equity partner owned and controlled DEC, a business enterprise in which he held more than a 10 percent interest and served in management roles.

business & regulatorytorts & liabilityprocedure

The case involves whether an initial commitment trial under California's Sexually Violent Predators Act (SVPA) may proceed against a defendant who is mentally incompetent to understand the nature of the proceedings or assist counsel. The Court of Appeal held that due process precludes the state from going forward with such a trial while the defendant remains incompetent. Applying the Mathews v. Eldridge balancing test as in People v. Allen, the court determined that the defendant's substantial liberty and dignitary interests, together with the high risk of an erroneous commitment finding, outweigh the state's interests in public safety and treatment when the defendant cannot meaningfully participate. The court therefore granted a writ of mandate directing the superior court to suspend the proceedings, conduct a competency hearing, and maintain appropriate custody if the defendant is found incompetent pending restoration of competency.

civil rightsprocedure

The case involved John Sok, an admitted gang member, who was convicted after a jury trial of two counts of attempted murder, shooting at an occupied motor vehicle, and multiple counts of unlawful firearm and ammunition possession, all with firearm-use and criminal street gang enhancements; he was sentenced as a second-strike offender to an aggregate term of 84 years to life based on a prior juvenile adjudication. Sok appealed solely on sentencing issues, arguing errors in the calculation of his sentence under the Three Strikes law, enhancement provisions, and Penal Code section 654. The court found that several claims had merit, including improper doubling of enhancements on the principal term, incorrect application of gang enhancements to calculate minimum terms, and failure to stay certain counts, and therefore remanded the matter for resentencing while affirming the underlying convictions.

criminal lawguns

In Mahnke v. Superior Court, the case involved a dispute between homeowners and their insurer, California FAIR Plan Association, over the amount of fire damage from the 2008 Sylmar wildfires; after electing appraisal under Insurance Code section 2071, the insurer sought to disqualify the homeowners' party-selected appraiser due to a professional relationship with another client of the homeowners' counsel. The trial court granted the disqualification petition, ruling that disclosure rules applied but the 15-day time limit did not, and that the relationship created an impression of bias. The Court of Appeal granted the homeowners' petition for writ of mandate, holding that the disclosure and disqualification provisions of the California Arbitration Act (sections 1281.9 and 1281.91) apply only to the neutral umpire, not to party-selected appraisers, and that the appraiser's relationship did not require disqualification under the applicable standard. The core reasoning was based on statutory interpretation distinguishing neutral arbitrators from party-designated appraisers in the appraisal process, along with the absence of any fixed disqualification deadline for the latter.

procedurebusiness & regulatory

The case concerned a dispute over workers' compensation death benefits following the on-duty death of a City of Los Angeles firefighter who left no dependents. The City had paid $104,208 to the employee's estate under Labor Code section 4702(a)(6)(B), but the Department of Industrial Relations' Death Without Dependents Unit sought an additional $125,000 payment under section 4706.5(a). The Workers' Compensation Appeals Board ordered the City to pay the full amount to the DWD Unit with only partial credit for the prior payments. The Court of Appeal annulled that order, holding that an additional payment to the state would constitute an unauthorized double recovery inconsistent with the statutory scheme and the clarifying amendment in section 4706.5(h), which was intended to prevent such overlapping obligations when a benefit has already been paid under section 4702(a)(6).

labor & employmentprocedure

In Jackson v. Yarbray, the Jackson parties sued ComputerXpress, its officers including Yarbray, and attorneys including BB&K for malicious prosecution after a prior Riverside County lawsuit against them—stemming from a failed merger and involving fraud, trade libel, and interference claims—was partially struck under the anti-SLAPP statute. Following a bench trial, the court held the defendants liable except for BB&K, awarding the Jackson parties emotional distress and punitive damages. On appeal, the court affirmed the no-liability finding for BB&K on the ground that it had not acted with malice, upheld the liability determinations against the remaining defendants, and reversed the compensatory damages award in part, remanding for a determination of attorney fees and costs from the anti-SLAPP motion that were recoverable as special damages.

proceduretorts & liability

The case involved Justin Panah Benhoor, who was cited for driving at an unsafe speed and convicted after a trial by written declaration. He requested a trial de novo, but the court set it for 57 days after receipt of his request, exceeding the 45-day limit under California Rule of Court 4.210(b)(7). Benhoor moved to dismiss the citation under Penal Code section 1382 for violation of his speedy trial rights, but the trial court denied the motion and convicted him. The appellate court agreed that the 45-day deadline had been violated but held that section 1382 did not apply to require dismissal in this context, as the statutory speedy trial provisions did not equate to the trial de novo procedure following a written declaration trial. The court affirmed the conviction.

criminal lawprocedure

The case concerned whether Civil Code section 2941 requires county recorders to index full reconveyances of deeds of trust within two business days of receipt, in addition to stamping and recording them. Plaintiffs Ricketts and Rosenberg sued Los Angeles County for failing to do so promptly, seeking a writ of mandate. The trial court, after a bench trial, ruled that the statutory requirement to "stamp and record" does not include indexing, which is a separate function, and entered judgment for the County. The appellate court affirmed, holding that a document is recorded once it is accepted, stamped with a permanent number, and made available, without needing indexing within the two-day period.

propertyprocedure

In this case, Joseph Li appealed the trial court's denial of his 2008 motion to vacate the 2003 voluntary dismissal with prejudice of his wrongful termination lawsuit against Majestic Industry Hills LLC, which had been resolved through a confidential settlement, as well as the award of sanctions against him under Code of Civil Procedure section 128.7. Li argued that the settlement's confidentiality provisions violated public policy by preventing disclosure of the employer's alleged ongoing criminal conduct related to food safety. The Court of Appeal affirmed the denial of the motion to vacate, holding that Li failed to show fraud, undue influence, or lack of jurisdiction that would justify setting aside the dismissal. However, it reversed the sanctions award because the trial court ruled on the underlying motion only 19 days after service of the sanctions motion, depriving Li of the full 21-day safe harbor period required by section 128.7 before sanctions could be imposed.

procedurelabor & employment

The case involved Lorenzo Birotte, who was charged in 2006 with rape, forcible oral copulation, and forcible sodomy committed in 1995, more than 10 years earlier and more than one year after an initial DNA database match identified him as a suspect. The ordinary statute of limitations is 10 years, but Penal Code section 803(g)(1) allows filing within one year after a suspect's identity is conclusively established by DNA testing if other conditions are met. The court interpreted the statute to mean that the one-year period begins only after qualified lab personnel fully evaluate and verify the automated DNA match, including completing statistical analyses and ensuring a sufficient chain of custody for the biological sample to support admissibility in evidence. Because the complaint was filed within one year of even the earliest possible trigger date under this standard, the trial court had properly denied Birotte's motion to dismiss on statute of limitations grounds, and the appellate court denied his petition for a writ of mandate.

criminal lawprocedure

The case involved Eduvigis Diaz, a passenger injured when an MTA bus collided with a car ahead of it, leading her to sue the MTA and its driver for negligence. The trial court refused to instruct the jury on res ipsa loquitur, which would have allowed an inference of negligence from the accident itself, and the jury found the defendants not negligent. The Court of Appeal reversed the judgment, holding that because the MTA is a common carrier and the injury occurred in connection with the operation of its vehicle, substantial evidence supported giving the res ipsa loquitur instruction that would shift the burden to the defendants to show they were not negligent. The court relied on precedent establishing that such accidents to passengers on common carriers typically warrant the doctrine unless the defendants demonstrate otherwise.

torts & liabilityprocedure

The case involved a certified class action by senior citizens against National Western Life Insurance Company alleging deceptive practices in the sale of annuities with high surrender penalties, brought under California's unfair competition law (UCL) and seeking restitution plus enhanced remedies under Civil Code section 3345. The trial court granted the defendant's motion for judgment on the pleadings, ruling that section 3345's enhanced (up to treble) remedy was unavailable in private UCL actions seeking only restitution. The Court of Appeal granted a writ of mandate, holding that the plain language of section 3345 applies to such actions because they redress unfair or deceptive practices and restitution serves a deterrent purpose. Although section 3345's enhanced remedy resembles punitive damages, the court found no clear legislative history limiting its scope or overriding the statute's text, which expressly covers senior citizens or disabled persons in UCL cases.

business & regulatorycivil rightsprocedure

This case involved Gabriela Roman's lawsuit against her former employer Flo-Kem alleging disability discrimination, failure to accommodate, and wrongful termination under the California Fair Employment and Housing Act. Roman petitioned for a writ of mandate after the trial court granted Flo-Kem's motion to compel arbitration based on a clause in her 1997 employment application that required binding arbitration of all disputes arising out of her employment. The Court of Appeal upheld the order compelling arbitration and rejected Roman's arguments that the agreement was unconscionable. The court concluded that the clause's reference to 'all disputes' created a mutual obligation binding both parties, so any procedural unconscionability from the adhesive contract did not render the agreement substantively unenforceable for lack of mutuality.

labor & employmentprocedure

This case involved a juvenile dependency proceeding in which the Los Angeles County Department of Children and Family Services petitioned to remove 12-year-old C.C. from his mother Lisa M. based on allegations of physical and emotional abuse. At the disposition hearing, the juvenile court denied the mother visitation after finding by clear and convincing evidence that contact would be detrimental to the child, relying on testimony from the child's therapist and a visitation monitor. The mother appealed, arguing the court applied an incorrect legal standard in denying visitation. While the appeal was pending, the juvenile court later restored monitored visitation via a family law exit order and terminated jurisdiction, rendering the appeal moot. The Court of Appeal reversed the visitation denial without remand solely to prevent any potential collateral prejudice to the mother from the order issued under the improper standard.

family lawprocedure