transactional immunity in California

2016Appellant’s petition for review by the Supreme Court was denied September 21, 2016, S236633. 1 In contrast, the federal courts utilize a transactional analysis; i.e., two suits constitute a single cause of action if they both arise from the same “ ‘transactional nucleus of facts’ ” (Derish v. San Mateo-Burlingame Bd. of Realtors (9th Cir. 1983) 724 F.2d 1347 , 1349, overruled on other grounds in Marrese v. American Academy of Ortho.

2015For example, in the First Action, Brooks alleged that BONY had engaged in fraud by “representing to Plaintiff and to third parties” that it was the owner of his promissory note 3 In contrast, the federal courts utilize a transactional analysis; i.e., two suits constitute a single cause of action if they both arise from the same “‘transactional nucleus of facts’” (Derish v. San Mateo–Burlingame Bd. of Realtors (9th Cir. 1983) 724 F.2d 1347 , 1349, overruled on other grounds in Eichman v. Fotomat Corp. (9th Cir. 1985) 759 F.2d 1434, 1437 ) or a single “‘core of operative facts.’” (Shaver v. F. W

2023(Bigler-Engler, supra, 7 Cal.App.5th at p. 314 .) A proper instruction under Bigler-Engler thus would have instructed the jury here to consider whether similar evidence of transactions, advertising, or J&J’s direct monetary benefit supported the transactional requirement.

2022(Bigler-Engler, supra, 7 Cal.App.5th at p. 314 .) A proper instruction under Bigler-Engler thus would have instructed the jury here to consider whether similar evidence of transactions, advertising, or J&J’s direct monetary benefit supported the transactional requirement.

2018(See id . § 24.) Although recent pronouncements from our high court have moved California law toward alignment with the overall approach to issue and claim preclusion in the Second Restatement, at least in the terminology we employ (see DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813 , 824, 189 Cal.Rptr.3d 809 , 352 P.3d 378 ), some features of California claim preclusion law remain distinctive.

2018(See id . § 24.) Although recent pronouncements from our high court have moved California law toward alignment with the overall approach to issue and claim preclusion in the Second Restatement, at least in the terminology we employ (see DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813 , 824, 189 Cal.Rptr.3d 809 , 352 P.3d 378 ), some features of California claim preclusion law remain distinctive.

2016Surgeons (1985) 470 U.S. 373 [ 84 L.Ed.2d 274 , 105 S.Ct. 1327 ] as noted in Eichman v. Fotomat Corp. (9th Cir. 1985) 759 F.2d 1434, 1437 ) or a single “‘“core of operative facts.”’” (Shaver v. F. W.

2015For example, in the First Action, Brooks alleged that BONY had engaged in fraud by “representing to Plaintiff and to third parties” that it was the owner of his promissory note 3 In contrast, the federal courts utilize a transactional analysis; i.e., two suits constitute a single cause of action if they both arise from the same “‘transactional nucleus of facts’” (Derish v. San Mateo–Burlingame Bd. of Realtors (9th Cir. 1983) 724 F.2d 1347 , 1349, overruled on other grounds in Eichman v. Fotomat Corp. (9th Cir. 1985) 759 F.2d 1434, 1437 ) or a single “‘core of operative facts.’” (Shaver v. F. W

2015Woolworth Co. (7th Cir. 1988) 840 F.2d 1361, 1365 .) 9 and deed of trust and had then initiated foreclosure proceedings without disclosing its “true role.” In the Second Action, Brooks also alleged (in both his original and in his amended complaint) that BONY had no beneficial interest in the deed of trust and no legal authority to exercise the power to sell the property at a foreclosure sale.

1991Woolworth Co. (7th Cir. 1988) 840 F.2d 1361, 1365 .) California follows the primary right theory of Pomeroy; i.e., a cause of action consists of 1) a primary right possessed by the plaintiff, 2) a corresponding primary duty devolving upon the defendant, and 3) a delict or wrong done by the defendant which consists in a breach of such primary right and duty. (4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 23, pp. 66-67.) Thus, two actions constitute a single cause of action if they both affect the same primary right.

2001Under this construction, the second clause modifies the first clause and merely exemplifies "what fits within the definition." ( Polaroid, supra, 507 S.E.2d at p. 290 .) Not surprisingly, Hoechst contends the statutory definition of business income establishes only a transactional test, while the Board contends the definition establishes both a transactional and functional test.

2001Under this construction, the second clause modifies the first clause and merely exemplifies “what fits within the definition.” (Polaroid, supra, 507 S.E.2d at p. 290 .) Not surprisingly, Hoechst contends the statutory definition of business income establishes only a transactional test, while the Board contends the definition establishes both a transactional and functional test.

2001In contrast to the transactional test, which focuses on the income-producing "transactions and activity," the functional test focuses on the income-producing "property." (§ 25120, subd. (a).) This property may be "tangible" or "intangible" ( ibid., ) and the nature of the relationship between this property and the taxpayer's "business operations" is the critical inquiry ( Texaco-Cities, supra, 230 Ill.Dec. 991 , 695 N.E.2d at p. 486 [the functional test "focuses upon the role or function of the property as being integral to regular business operations"]).

2001(See Citicorp of North America, Inc. v. Franchise Tax Bd. (2000) 83 Cal.App.4th 1403, 1430 , 100 Cal.Rptr.2d 509 ( Citicorp) ; see also Pierce Associates, supra, 462 A.2d at p. 1131; Texaco-Cities, supra, 230 Ill.Dec. 991 , 695 N.E.2d at p. 484 ; Polaroid, supra, 507 S.E.2d at p. 289 ; Ross-Araco, supra, 674 A.2d at p. 693.) Thus, the phrase "regular trade or business operations" (§ 25120, subd. (a)) establishes that the taxpayer's control and use of the income-producing property must be part of the taxpayer's normal or typical business activities.

2000(Stats.1974, ch. 93, § 3, p. 193.) [4] In Robert Half Internat., Inc. v. Franchise Tax Bd., supra, 66 Cal.App.4th at page 1024 , 78 Cal.Rptr.2d 453 , the parties agreed the definition of business income set forth in section 25120, subdivision (a) contained both a transactional test and a functional test.

2000(Stats.1974, ch. 93, § 3, p. 193.) [4] In Robert Half Internat., Inc. v. Franchise Tax Bd., supra, 66 Cal.App.4th at page 1024 , 78 Cal.Rptr.2d 453 , the parties agreed the definition of business income set forth in section 25120, subdivision (a) contained both a transactional test and a functional test.

2023For example, while federal law defines a ‘claim’ for purposes of claim preclusion using a transactional test [Mpoyo v. Litton Electro-Optical Systems (9th Cir. 2005) 430 F.3d 985, 987 ], California law uses the older pleading term ‘cause of action’ and defines it according to the common law doctrine of primary rights.

2021Analysis Generally, “ ‘[i]mpermissible “vouching” may occur where the prosecutor places the prestige of the government behind a witness through personal assurances of the witness’s veracity or suggests that information not presented to the jury supports the witness’s testimony.’ ” (Seumanu, supra, 61 Cal.4th at p. 1329 .) Improper vouching may occur during either a prosecutor’s questioning or argument.

2018Co. v. Tompkins (1938) 304 U.S. 64 , 78-80, 58 S.Ct. 817 , 82 L.Ed. 1188 ; see Klaxon Co. v. Stentor Co. (1941) 313 U.S. 487 , 496, 61 S.Ct. 1020 , 85 L.Ed. 1477 .

2018Co. v. Tompkins (1938) 304 U.S. 64 , 78-80, 58 S.Ct. 817 , 82 L.Ed. 1188 ; see Klaxon Co. v. Stentor Co. (1941) 313 U.S. 487 , 496, 61 S.Ct. 1020 , 85 L.Ed. 1477 .

2018(See id. § 24.) Although recent pronouncements from our high court have moved California law toward alignment with the overall approach to issue and claim preclusion in the Second Restatement, at least in the terminology we employ (see DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824 ), some features of California claim preclusion law remain distinctive.

2016Surgeons (1985) 470 U.S. 373 [ 84 L.Ed.2d 274 , 105 S.Ct. 1327 ] as noted in Eichman v. Fotomat Corp. (9th Cir. 1985) 759 F.2d 1434, 1437 ) or a single “‘“core of operative facts.”’” (Shaver v. F. W.

2016Surgeons (1985) 470 U.S. 373 [ 84 L.Ed.2d 274 , 105 S.Ct. 1327 ] as noted in Eichman v. Fotomat Corp. (9th Cir. 1985) 759 F.2d 1434, 1437 ) or a single “‘“core of operative facts.”’” (Shaver v. F. W.

2015Transactional immunity is not constitutionally required.” (People v. Cooke (1993) 16 Cal.App.4th 1361, 1366 .) The United States Supreme Court in Kastigar v. United States (1972) 406 U.S. 441 (Kastigar), held that the scope of immunity granted under an immunity statute must be coextensive with the scope of the Fifth Amendment privilege against self- incrimination to justify supplanting the privilege and compelling a witness to testify.

2012The court explained that under the “transactional” test, “a prior judgment’s preclusive effect extends to all rights of the plaintiff with respect to all or any part of the transaction, or series of connected transactions, out of which the original action arose. [Citation.] What grouping of facts constitutes a transaction or series of transactions must be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conf[o]rms to the parties’

2012(Motient, supra, 269 S.W.3d at p. 85 .) It explained that although Motient’s theories of liability arose from Dondero’s separate obligations as a shareholder and as a board member, “both suits arise from the actions he took in his alleged attempt to take control of Motient.

2005(Hoechst Celanese, supra, 25 Cal.4th at pp. 526, 527.) According to our Supreme Court, the “critical inquiry” for purposes of the functional test is “the nature of the relationship between this property and the taxpayer’s ‘business operations.’ ” (Id. at p. 527.) The relationship necessary to a finding of business income is defined by the conditional clause of Revenue and Taxation Code section 25120, subdivision (a). ( 25 Cal.4th at p. 528 .) That is, income from tangible and intangible property is business income “if the acquisition, management, and disposition of the property constitute inte

2001(See Citicorp of North America, Inc. v. Franchise Tax Bd. (2000) 83 Cal.App.4th 1403, 1430 , 100 Cal.Rptr.2d 509 ( Citicorp) ; see also Pierce Associates, supra, 462 A.2d at p. 1131; Texaco-Cities, supra, 230 Ill.Dec. 991 , 695 N.E.2d at p. 484 ; Polaroid, supra, 507 S.E.2d at p. 289 ; Ross-Araco, supra, 674 A.2d at p. 693.) Thus, the phrase "regular trade or business operations" (§ 25120, subd. (a)) establishes that the taxpayer's control and use of the income-producing property must be part of the taxpayer's normal or typical business activities.

2001(See Citicorp of North America, Inc. v. Franchise Tax Bd. (2000) 83 Cal.App.4th 1403, 1430 , 100 Cal.Rptr.2d 509 ( Citicorp) ; see also Pierce Associates, supra, 462 A.2d at p. 1131; Texaco-Cities, supra, 230 Ill.Dec. 991 , 695 N.E.2d at p. 484 ; Polaroid, supra, 507 S.E.2d at p. 289 ; Ross-Araco, supra, 674 A.2d at p. 693.) Thus, the phrase "regular trade or business operations" (§ 25120, subd. (a)) establishes that the taxpayer's control and use of the income-producing property must be part of the taxpayer's normal or typical business activities.