mitigation instruction in California

2009Behav. 575 , 582-583, 589-591; Eisenberg & Wells, Deadly Confusion: Juror Instructions in Capital Cases (1993) 79 Cornell L.Rev. 1.) We rejected a similar, argument in People v. Welch, supra, 20 Cal.4th 701, 773 , stating: “The presumption that the jurors in this case understood and followed the mitigation instruction supplied to them is not rebutted by empirical assertions to the contrary based on research that is not part of the present record and has not been subject to cross examination. [Citation.]” H.

2009(People v. Page, supra, *816 44 Cal.4th at p. 61 .) Speaking of the same academic study cited by defendant, this court observed that “ ‘[w]e presume that jurors comprehend and accept the court’s directions.’ [Citation.] The presumption that the jurors in this case understood and followed the mitigation instruction supplied to them is not rebutted by empirical assertions to the contrary based on research that is not part of the present record and has not been subject to cross examination.” (People v. Welch, supra, 20 Cal.4th at p. 773.) 11.

2018Plaintiffs contend that the Project's EIR is insufficient, because "the mitigation analysis is devoid of criteria for measuring the effectiveness of mitigation measures." (Guidelines, § 15126.4, subd. (a)(1)(B); see Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296 , 306-307, 248 Cal.Rptr. 352 [improper to defer formulation of mitigation measures until after project approved].) Plaintiffs agree with the Court of Appeal's conclusion that the formulation of future substitutions in this case was improperly deferred.

2018Plaintiffs contend that the Project's EIR is insufficient, because "the mitigation analysis is devoid of criteria for measuring the effectiveness of mitigation measures." (Guidelines, § 15126.4, subd. (a)(1)(B); see Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296 , 306-307, 248 Cal.Rptr. 352 [improper to defer formulation of mitigation measures until after project approved].) Plaintiffs agree with the Court of Appeal's conclusion that the formulation of future substitutions in this case was improperly deferred.

2015The mitigation clause in the policy here is not the same as the usual sue and labor clause, which provides for preventative work by the insured “‘[i]n case of actual or imminent loss or damage.’” (Young’s Market, supra, 4 Cal.3d at p. 311 ; see also 3 New Appleman, supra, § 20.06[2], pp. 20-46 to 20-47.) As noted, the mitigation clause here only applies after the loss occurs.

2015The mitigation clause in the policy here is not the same as the usual sue and labor clause, which provides for preventative work by the insured “ ‘[i]n case of actual or imminent loss or damage.’ ” (Young’s Market, supra, 4 Cal.3d at p. 311; see 3 New Appleman, supra, *576 § 20.06[2], pp. 20-46 to 20-47.) As noted, the mitigation clause here only applies after the loss occurs.

1994Appeals Bd., supra, 36 Cal.App.3d at p. 393 .) After explaining why the doctrine did not apply to require an employee to resort to public welfare or risk the loss of benefits, the court stated that it did not declare, “unequivocally, that we believe that the mitigation doctrine is never applicable to a workmen’s compensation claim; it is conceivable that circumstances could arise where justice and equity would dictate some duty on the part of the employee ‘to mitigate the trouble and promote recovery.’ ” (Id. at p. 396, quoting Marshall v. Ransome Concrete Co. (1917) 33 Cal.App. 782, 786 [ 166

1994Appeals Bd., supra, 36 Cal.App.3d at p. 393 .) After explaining why the doctrine did not apply to require an employee to resort to public welfare or risk the loss of benefits, the court stated that it did not declare, “unequivocally, that we believe that the mitigation doctrine is never applicable to a workmen’s compensation claim; it is conceivable that circumstances could arise where justice and equity would dictate some duty on the part of the employee ‘to mitigate the trouble and promote recovery.’ ” (Id. at p. 396, quoting Marshall v. Ransome Concrete Co. (1917) 33 Cal.App. 782, 786 [ 166

2024(See People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [“[T]he full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant”]; People v. Buycks (2018) 5 Cal.5th 857, 893 (Buycks) [same].) DISPOSITION The victim restitution order is vacated.

2024(See People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [“[T]he full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant”]; People v. Buycks (2018) 5 Cal.5th 857, 893 (Buycks) [same].) DISPOSITION The victim restitution order is vacated.

2024(Henrici v. South Feather Land & Water Co. (1918) 177 Cal. 442, 445-446, 449-450 .) We see no reason to apply the mitigation doctrine to Brandt fees as Foremost suggests.

2022Standard of Review “Mitigation of damages is a question of fact, and is subject to review for the existence of substantial evidence. [Citation.][Fn. omitted.]” (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 875 (OCM).) “‘“A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light 7 Because we hold that substantial evidence did not support the jury’s finding, we need not address Greenfield’s claim that the court erred in instructing the jury on mitigation of damages or Kandeel’s clai

2010Their claim accrued at once in the theory of the law and it does not inquire into later events.”]; Adams v. Mills, supra, 286 U.S. at p. 407 [“In contemplation of law the claim for damages arose at the time the extra charge was paid,” notwithstanding any subsequent reimbursement].) The doctrine of mitigation, where it applies, is a limitation on liability for damages, not a basis for extinguishing standing.

2010Such a generally applicable requirement imposed as a condition of development is subject to a “reasonable relationship” level of judicial scrutiny, as opposed to the heightened scrutiny applied to the imposition of land use conditions in individual cases as outlined in Nollan v. California Coastal Comm’n (1987) 483 U.S. 825 [ 97 L.Ed.2d 677 , 107 S.Ct. 3141 ] and Dolan v. City of Tigard (1994) 512 U.S. 374 [ 129 L.Ed.2d 304 , 114 S.Ct. 2309 ], (San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643, 665-671 [ 117 Cal.Rptr.2d 269 , 41 P.3d 87 ].) Thus, to be valid, this mitiga

2010Such a generally applicable requirement imposed as a condition of development is subject to a “reasonable relationship” level of judicial scrutiny, as opposed to the heightened scrutiny applied to the imposition of land use conditions in individual cases as outlined in Nollan v. California Coastal Comm’n (1987) 483 U.S. 825 [ 97 L.Ed.2d 677 , 107 S.Ct. 3141 ] and Dolan v. City of Tigard (1994) 512 U.S. 374 [ 129 L.Ed.2d 304 , 114 S.Ct. 2309 ], (San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643, 665-671 [ 117 Cal.Rptr.2d 269 , 41 P.3d 87 ].) Thus, to be valid, this mitiga

2010(See Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1066 [ 232 Cal.Rptr. 528 , 728 P.2d 1163 ] [“ ‘The rule of [mitigation of damages] comes into play after a legal wrong has occurred, but while some damages may still be averted ....’” (quoting Prosser & Keeton, Torts (5th ed. 1984) § 65, p. 458)].) This is so because mitigation, while it might diminish a party’s recovery, does not diminish the party’s interest in proving it is entitled to recovery.

2010(See Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1066 [ 232 Cal.Rptr. 528 , 728 P.2d 1163 ] [“ ‘The rule of [mitigation of damages] comes into play after a legal wrong has occurred, but while some damages may still be averted ....’” (quoting Prosser & Keeton, Torts (5th ed. 1984) § 65, p. 458)].) This is so because mitigation, while it might diminish a party’s recovery, does not diminish the party’s interest in proving it is entitled to recovery.

2008Code, § 2081, subd. (b); see Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist. (1992) 8 Cal.App.4th 1554, 1561 [ 11 Cal.Rptr.2d 222 ].) Adverse impacts that result from unforeseen circumstances are impacts that cannot reasonably be anticipated, not impacts from purposeful activities.” We agree that the focus of the full mitigation requirement is on adverse impacts that result from purposeful activity.

2008Code, § 2081, subd. (b); see Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist. (1992) 8 Cal.App.4th 1554, 1561 [ 11 Cal.Rptr.2d 222 ].) Adverse impacts that result from unforeseen circumstances are impacts that cannot reasonably be anticipated, not impacts from purposeful activities.” We agree that the focus of the full mitigation requirement is on adverse impacts that result from purposeful activity.

2006(Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 973, fn. 3 [ 132 Cal.Rptr.2d 635 ].) 64 Our conclusion that the Anderson parties did not have standing to challenge the Board’s imposition of a mitigation requirement on the Bureau has no effect on our previous discussion of the Merger Law, because the expansion landholders had standing to raise that issue.

2006(Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 973, fn. 3 [ 132 Cal.Rptr.2d 635 ].) 64 Our conclusion that the Anderson parties did not have standing to challenge the Board’s imposition of a mitigation requirement on the Bureau has no effect on our previous discussion of the Merger Law, because the expansion landholders had standing to raise that issue.

2005(People v. Benson (1990) 52 Cal.3d 754, 802 [ 276 Cal.Rptr. 827 , 802 P.2d 330 ]; see People v. Williams (1997) 16 Cal.4th 153, 268-269 [ 66 Cal.Rptr.2d 123 , 940 P.2d 710 ]; People v. McPeters (1992) 2 Cal.4th 1148, 1191 [ 9 Cal.Rptr.2d 834 , 832 P.2d 146 ].) “The presumption that the jurors in this case understood and followed the mitigation instruction supplied to them is not rebutted by empirical assertions to the contrary based on research that is not part of the present record and has not been subject to cross-examination. [Citation.]” (Welch, supra, 20 Cal.4th at p. 773.) 17 Finally, fa

2005(People v. Benson (1990) 52 Cal.3d 754, 802 [ 276 Cal.Rptr. 827 , 802 P.2d 330 ]; see People v. Williams (1997) 16 Cal.4th 153, 268-269 [ 66 Cal.Rptr.2d 123 , 940 P.2d 710 ]; People v. McPeters (1992) 2 Cal.4th 1148, 1191 [ 9 Cal.Rptr.2d 834 , 832 P.2d 146 ].) “The presumption that the jurors in this case understood and followed the mitigation instruction supplied to them is not rebutted by empirical assertions to the contrary based on research that is not part of the present record and has not been subject to cross-examination. [Citation.]” (Welch, supra, 20 Cal.4th at p. 773.) 17 Finally, fa

2005(People v. Benson (1990) 52 Cal.3d 754, 802 [ 276 Cal.Rptr. 827 , 802 P.2d 330 ]; see People v. Williams (1997) 16 Cal.4th 153, 268-269 [ 66 Cal.Rptr.2d 123 , 940 P.2d 710 ]; People v. McPeters (1992) 2 Cal.4th 1148, 1191 [ 9 Cal.Rptr.2d 834 , 832 P.2d 146 ].) “The presumption that the jurors in this case understood and followed the mitigation instruction supplied to them is not rebutted by empirical assertions to the contrary based on research that is not part of the present record and has not been subject to cross-examination. [Citation.]” (Welch, supra, 20 Cal.4th at p. 773.) 17 Finally, fa

2005(People v. Benson (1990) 52 Cal.3d 754, 802 [ 276 Cal.Rptr. 827 , 802 P.2d 330 ]; see People v. Williams (1997) 16 Cal.4th 153, 268-269 [ 66 Cal.Rptr.2d 123 , 940 P.2d 710 ]; People v. McPeters (1992) 2 Cal.4th 1148, 1191 [ 9 Cal.Rptr.2d 834 , 832 P.2d 146 ].) “The presumption that the jurors in this case understood and followed the mitigation instruction supplied to them is not rebutted by empirical assertions to the contrary based on research that is not part of the present record and has not been subject to cross-examination. [Citation.]” (Welch, supra, 20 Cal.4th at p. 773.) 17 Finally, fa

2005(People v. Box (2000) 23 Cal.4th 1153, 1217 [ 99 Cal.Rptr.2d 69 , 5 P.3d 130 ]; People v. Turner (1994) 8 Cal.4th 137, 207-208 [ 32 Cal.Rptr.2d 762 , 878 P.2d 521 ].) Likewise, the failure to identify which factors were aggravating and which mitigating was not error; the aggravating or mitigating nature of the factors is self-evident within the context of each case.

2005(People v. Box (2000) 23 Cal.4th 1153, 1217 [ 99 Cal.Rptr.2d 69 , 5 P.3d 130 ]; People v. Turner (1994) 8 Cal.4th 137, 207-208 [ 32 Cal.Rptr.2d 762 , 878 P.2d 521 ].) Likewise, the failure to identify which factors were aggravating and which mitigating was not error; the aggravating or mitigating nature of the factors is self-evident within the context of each case.

2005(People v. Box (2000) 23 Cal.4th 1153, 1217 [ 99 Cal.Rptr.2d 69 , 5 P.3d 130 ]; People v. Turner (1994) 8 Cal.4th 137, 207-208 [ 32 Cal.Rptr.2d 762 , 878 P.2d 521 ].) Likewise, the failure to identify which factors were aggravating and which mitigating was not error; the aggravating or mitigating nature of the factors is self-evident within the context of each case.

2005(People v. Box (2000) 23 Cal.4th 1153, 1217 [ 99 Cal.Rptr.2d 69 , 5 P.3d 130 ]; People v. Turner (1994) 8 Cal.4th 137, 207-208 [ 32 Cal.Rptr.2d 762 , 878 P.2d 521 ].) Likewise, the failure to identify which factors were aggravating and which mitigating was not error; the aggravating or mitigating nature of the factors is self-evident within the context of each case.