operation rule in California

2009We held the instruction improper, adopting the "so-called `merger' doctrine" that had previously been developed in other jurisdictions. ( Id. at p. 540.) We explained our reasons: "[T]he utilization of the felony-murder rule in circumstances such as those before us extends the operation of that rule `beyond any rational function that it is designed to serve.' ( People v. Washington (1965) 62 Cal.2d 777, 783 [ 44 Cal.Rptr. 442 , 402 P.2d 130 ].) To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein

2009We held the instruction improper, adopting the "so-called `merger' doctrine" that had previously been developed in other jurisdictions. ( Id. at p. 540.) We explained our reasons: "[T]he utilization of the felony-murder rule in circumstances such as those before us extends the operation of that rule `beyond any rational function that it is designed to serve.' ( People v. Washington (1965) 62 Cal.2d 777, 783 [ 44 Cal.Rptr. 442 , 402 P.2d 130 ].) To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein

1951Boynton Co., 44 Cal.App. 474 [ 186 P. 631 ]; Thompson v. White, 56 Cal.App. 173 [ 204 P. 561 ].) The manner in which the decedent was crossing the street having been covered by the plaintiff’s own evidence, there is no room for the operation of the presumption that he was exercising due care (Paulsen v. McDuffie, 4 Cal.2d 111 [ 47 P.2d 709 ]), and it cannot be relied upon to establish a conflict in the evidence.” Here not only have plaintiffs failed to show negligence on the part of defendants, but have, we believe, shown that decedent’s own negligence proximately contributed to his injuries a

1951Boynton Co., 44 Cal.App. 474 [ 186 P. 631 ]; Thompson v. White, 56 Cal.App. 173 [ 204 P. 561 ].) The manner in which the decedent was crossing the street having been covered by the plaintiff’s own evidence, there is no room for the operation of the presumption that he was exercising due care (Paulsen v. McDuffie, 4 Cal.2d 111 [ 47 P.2d 709 ]), and it cannot be relied upon to establish a conflict in the evidence.” Here not only have plaintiffs failed to show negligence on the part of defendants, but have, we believe, shown that decedent’s own negligence proximately contributed to his injuries a

1982It is enough that the court cannot say that reasonable men could not draw it. [Citation.] The existence of the conditions upon which the operation of the doctrine [of res ipsa loquitur] is to be predicated is a question of fact and the right of the jury to find those facts must be carefully preserved [citations].” (Seneris v. Haas (1955) 45 Cal.2d 811, 827 [ 291 P.2d 915 ].) *903 We conclude that the trial court erred in entering judgment of nonsuit based on plaintiff’s opening statement.

1982It is enough that the court cannot say that reasonable men could not draw it. [Citation.] The existence of the conditions upon which the operation of the doctrine [of res ipsa loquitur] is to be predicated is a question of fact and the right of the jury to find those facts must be carefully preserved [citations].” (Seneris v. Haas (1955) 45 Cal.2d 811, 827 [ 291 P.2d 915 ].) *903 We conclude that the trial court erred in entering judgment of nonsuit based on plaintiff’s opening statement.

2008Like all such *242 guidelines, it has many exceptions . . . .” (Estate of Banerjee (1978) 21 Cal.3d 527, 539 [ 147 Cal.Rptr. 157 , 580 P.2d 657 ].) “The maxim does not apply where its application would run counter to a well-established principle of law [citation] or where the operation of the rule ‘ “would contradict a discernible and contrary legislative intent.” ’ ” (Burns v. California FAIR Plan Assn. (2007) 152 Cal.App.4th 646, 656 [ 61 Cal.Rptr.3d 809 ], quoting In re Michael G. (1988) 44 Cal.3d 283, 291 [ 243 Cal.Rptr. 224 , 747 P.2d 1152 ].) The Act was enacted as a comprehensive scheme

2008Like all such *242 guidelines, it has many exceptions . . . .” (Estate of Banerjee (1978) 21 Cal.3d 527, 539 [ 147 Cal.Rptr. 157 , 580 P.2d 657 ].) “The maxim does not apply where its application would run counter to a well-established principle of law [citation] or where the operation of the rule ‘ “would contradict a discernible and contrary legislative intent.” ’ ” (Burns v. California FAIR Plan Assn. (2007) 152 Cal.App.4th 646, 656 [ 61 Cal.Rptr.3d 809 ], quoting In re Michael G. (1988) 44 Cal.3d 283, 291 [ 243 Cal.Rptr. 224 , 747 P.2d 1152 ].) The Act was enacted as a comprehensive scheme

1991II Escrow Theory of Liability Peterson's theories of breach of fiduciary duty and constructive fraud are closely related. (8) It is essential to the operation of the doctrine of constructive fraud that there exist a fiduciary or special relationship. ( Mary Pickford Co. v. Bayly Bros., Inc. (1939) 12 Cal.2d 501, 525 [ 86 P.2d 102 ]; Byrum v. Brand (1990) 219 Cal. App.3d 926, 937 [ 268 Cal. Rptr. 609 ]; Civil Code, § 1573.) Peterson claims TPB's activities as an escrow holder created such a fiduciary or special relationship, and alleges that breaches of duty and constructive fraud occurred when

1991II Escrow Theory of Liability Peterson's theories of breach of fiduciary duty and constructive fraud are closely related. (8) It is essential to the operation of the doctrine of constructive fraud that there exist a fiduciary or special relationship. ( Mary Pickford Co. v. Bayly Bros., Inc. (1939) 12 Cal.2d 501, 525 [ 86 P.2d 102 ]; Byrum v. Brand (1990) 219 Cal. App.3d 926, 937 [ 268 Cal. Rptr. 609 ]; Civil Code, § 1573.) Peterson claims TPB's activities as an escrow holder created such a fiduciary or special relationship, and alleges that breaches of duty and constructive fraud occurred when

1963(Bauer v. Otis, 133 Cal.App.2d 439, 443 [ 284 P.2d 133 ].) The existence of the conditions upon which the operation of the doctrine is to be predicated is a question of fact and the right of the jury to find those facts must be carefully preserved.

1963(Bauer v. Otis, 133 Cal.App.2d 439, 443 [ 284 P.2d 133 ].) The existence of the conditions upon which the operation of the doctrine is to be predicated is a question of fact and the right of the jury to find those facts must be carefully preserved.

1959(Bauer v. Otis, 133 Cal.App.2d 439, 443 [ 284 P.2d 133 ].) The existence of the conditions upon which the operation of the doctrine is to be predicated is a question of fact and the right of the jury to find those facts must be carefully preserved (Black v. Partridge, 115 Cal.App.2d 639, 646 [ 252 P.2d 760 ] ; Rose v. Melody Lane, 39 Cal.2d 481 [ 247 P.2d 335 ]; Knell v. Morris, 39 Cal.2d 450 [ 247 P.2d 352 ] ; Milias v. Wheeler Hospital, 109 Cal.App.2d 759 [ 241 P.2d 684 ].)” Additionally in the present ease there is evidence to show that the defect in the hose was patent not latent.

1959(Bauer v. Otis, 133 Cal.App.2d 439, 443 [ 284 P.2d 133 ].) The existence of the conditions upon which the operation of the doctrine is to be predicated is a question of fact and the right of the jury to find those facts must be carefully preserved (Black v. Partridge, 115 Cal.App.2d 639, 646 [ 252 P.2d 760 ] ; Rose v. Melody Lane, 39 Cal.2d 481 [ 247 P.2d 335 ]; Knell v. Morris, 39 Cal.2d 450 [ 247 P.2d 352 ] ; Milias v. Wheeler Hospital, 109 Cal.App.2d 759 [ 241 P.2d 684 ].)” Additionally in the present ease there is evidence to show that the defect in the hose was patent not latent.

1952No. 135, p. 159,161, and 1950 Supp., p. 113, No. 135.) The general rule is announced in Mundy v. Marshall, 8 Cal.2d 294, 296 [ 65 P.2d 65 ], that the manner in which the deceased was crossing the street having been covered by the plaintiff’s own evidence, there is no room for the operation of the presumption that he was exercising due care.

1952No. 135, p. 159,161, and 1950 Supp., p. 113, No. 135.) The general rule is announced in Mundy v. Marshall, 8 Cal.2d 294, 296 [ 65 P.2d 65 ], that the manner in which the deceased was crossing the street having been covered by the plaintiff’s own evidence, there is no room for the operation of the presumption that he was exercising due care.

1971Thus, for example, we have refused to apply the doctrine in cases wherein the killing is committed by persons other than the defendant or an accomplice acting in furtherance of a common felonious design ( People v. Washington, supra, 62 Cal.2d 777, 781-783 ); in cases wherein the operation of the doctrine depends upon "a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged" ( People v. Ireland, supra, 70 Cal.2d 522, 539 , fn. omitted; see People v. Wilson (1969) 1 Cal.3d 431, 437-4

1971Thus, for example, we have refused to apply the doctrine in cases wherein the killing is committed by persons other than the defendant or an accomplice acting in furtherance of a common felonious design (People v. Washington, supra, 62 Cal.2d 777, 781-783 ); in cases wherein the operation of the doctrine depends upon “a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged” (People v. Ireland, supra, 70 Cal.2d 522, 539 , fn. omitted; see People v. Wilson (1969) 1 Cal.3d 431, 437-442

2008Like all such *242 guidelines, it has many exceptions . . . .” (Estate of Banerjee (1978) 21 Cal.3d 527, 539 [ 147 Cal.Rptr. 157 , 580 P.2d 657 ].) “The maxim does not apply where its application would run counter to a well-established principle of law [citation] or where the operation of the rule ‘ “would contradict a discernible and contrary legislative intent.” ’ ” (Burns v. California FAIR Plan Assn. (2007) 152 Cal.App.4th 646, 656 [ 61 Cal.Rptr.3d 809 ], quoting In re Michael G. (1988) 44 Cal.3d 283, 291 [ 243 Cal.Rptr. 224 , 747 P.2d 1152 ].) The Act was enacted as a comprehensive scheme

2008Like all such *242 guidelines, it has many exceptions . . . .” (Estate of Banerjee (1978) 21 Cal.3d 527, 539 [ 147 Cal.Rptr. 157 , 580 P.2d 657 ].) “The maxim does not apply where its application would run counter to a well-established principle of law [citation] or where the operation of the rule ‘ “would contradict a discernible and contrary legislative intent.” ’ ” (Burns v. California FAIR Plan Assn. (2007) 152 Cal.App.4th 646, 656 [ 61 Cal.Rptr.3d 809 ], quoting In re Michael G. (1988) 44 Cal.3d 283, 291 [ 243 Cal.Rptr. 224 , 747 P.2d 1152 ].) The Act was enacted as a comprehensive scheme

1984This court has "refused to apply the doctrine in cases wherein the killing is committed by persons other than the defendant or an accomplice acting in furtherance of a common felonious design ...; in cases wherein the operation of the doctrine depends upon `a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged' ...; and in cases wherein the underlying felony is not one of the six enumerated in section 189 of the Penal Code and is not inherently dangerous *849 to human life...." (

1984This court has "refused to apply the doctrine in cases wherein the killing is committed by persons other than the defendant or an accomplice acting in furtherance of a common felonious design ...; in cases wherein the operation of the doctrine depends upon `a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged' ...; and in cases wherein the underlying felony is not one of the six enumerated in section 189 of the Penal Code and is not inherently dangerous *849 to human life...." (

1981The parties agree that a deficiency judgment in this action is barred, if at all, by that portion of Code of Civil Procedure section 580b which reads as follows: "No deficiency judgment shall lie in any event after any sale of real property ... under a deed of trust, or mortgage, given to the vendor to secure payment of the balance of the purchase price of real property...." [1] *623 (1) The operation of this clause has been held to be that under a purchase money debt owed to the vendor and secured by the property purchased, the security alone can be looked to for the recovery of the debt in t

1981The parties agree that a deficiency judgment in this action is barred, if at all, by that portion of Code of Civil Procedure section 580b which reads as follows: "No deficiency judgment shall lie in any event after any sale of real property ... under a deed of trust, or mortgage, given to the vendor to secure payment of the balance of the purchase price of real property...." [1] *623 (1) The operation of this clause has been held to be that under a purchase money debt owed to the vendor and secured by the property purchased, the security alone can be looked to for the recovery of the debt in t

1968(See People v. Roberts, 47 Cal.2d 374, 377 [ 303 P.2d 721 ] (apartment manager) ; People v. Burke, 208 Cal.App.2d 149, 160 [ 24 Cal.Rptr. 912 ] (hotel manager).) And it is often ignored that the court also said: “ [T]here is nothing in the record to indicate that the police had any basis whatsoever to believe that the night clerk had been authorized by the petitioner to permit the police to search the petitioner’s room.” ( 376 U.S. at p. 489 [ 11 L.Ed.2d at p. 860 ].) The sine qua non of the operation of the rule of Gorg is an honest belief based on reasonable grounds.

1968(See People v. Roberts, 47 Cal.2d 374, 377 [ 303 P.2d 721 ] (apartment manager) ; People v. Burke, 208 Cal.App.2d 149, 160 [ 24 Cal.Rptr. 912 ] (hotel manager).) And it is often ignored that the court also said: “ [T]here is nothing in the record to indicate that the police had any basis whatsoever to believe that the night clerk had been authorized by the petitioner to permit the police to search the petitioner’s room.” ( 376 U.S. at p. 489 [ 11 L.Ed.2d at p. 860 ].) The sine qua non of the operation of the rule of Gorg is an honest belief based on reasonable grounds.

1968Neither is Beck v. Ohio, 379 U.S. 89, 97 [ 13 L.Ed.2d 142, 148 , 85 S.Ct. 223 ], germane.

1968Neither is Beck v. Ohio, 379 U.S. 89, 97 [ 13 L.Ed.2d 142, 148 , 85 S.Ct. 223 ], germane.

1968(See People v. Roberts, 47 Cal.2d 374, 377 [ 303 P.2d 721 ] (apartment manager) ; People v. Burke, 208 Cal.App.2d 149, 160 [ 24 Cal.Rptr. 912 ] (hotel manager).) And it is often ignored that the court also said: “ [T]here is nothing in the record to indicate that the police had any basis whatsoever to believe that the night clerk had been authorized by the petitioner to permit the police to search the petitioner’s room.” ( 376 U.S. at p. 489 [ 11 L.Ed.2d at p. 860 ].) The sine qua non of the operation of the rule of Gorg is an honest belief based on reasonable grounds.

1968(See People v. Roberts, 47 Cal.2d 374, 377 [ 303 P.2d 721 ] (apartment manager) ; People v. Burke, 208 Cal.App.2d 149, 160 [ 24 Cal.Rptr. 912 ] (hotel manager).) And it is often ignored that the court also said: “ [T]here is nothing in the record to indicate that the police had any basis whatsoever to believe that the night clerk had been authorized by the petitioner to permit the police to search the petitioner’s room.” ( 376 U.S. at p. 489 [ 11 L.Ed.2d at p. 860 ].) The sine qua non of the operation of the rule of Gorg is an honest belief based on reasonable grounds.

1968(See People v. Roberts, 47 Cal.2d 374, 377 [ 303 P.2d 721 ] (apartment manager) ; People v. Burke, 208 Cal.App.2d 149, 160 [ 24 Cal.Rptr. 912 ] (hotel manager).) And it is often ignored that the court also said: “ [T]here is nothing in the record to indicate that the police had any basis whatsoever to believe that the night clerk had been authorized by the petitioner to permit the police to search the petitioner’s room.” ( 376 U.S. at p. 489 [ 11 L.Ed.2d at p. 860 ].) The sine qua non of the operation of the rule of Gorg is an honest belief based on reasonable grounds.

1968(See People v. Roberts, 47 Cal.2d 374, 377 [ 303 P.2d 721 ] (apartment manager) ; People v. Burke, 208 Cal.App.2d 149, 160 [ 24 Cal.Rptr. 912 ] (hotel manager).) And it is often ignored that the court also said: “ [T]here is nothing in the record to indicate that the police had any basis whatsoever to believe that the night clerk had been authorized by the petitioner to permit the police to search the petitioner’s room.” ( 376 U.S. at p. 489 [ 11 L.Ed.2d at p. 860 ].) The sine qua non of the operation of the rule of Gorg is an honest belief based on reasonable grounds.

2025Constructive Fraud “Constructive fraud “‘“‘is a unique species of fraud applicable only to a fiduciary or confidential relationship.””” [Citation.] ‘Constructive fraud “arises on a breach of duty by one in a confidential or fiduciary relationship to another which induces justifiable reliance by the latter to his prejudice.”’” (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1131 .) “It is essential to the operation of the doctrine of constructive fraud that there exist a fiduciary or special relationship.” (Peterson Development Co. v. Torrey Pines Bank (1991) 233 Cal.App

2025Constructive Fraud “Constructive fraud “‘“‘is a unique species of fraud applicable only to a fiduciary or confidential relationship.””” [Citation.] ‘Constructive fraud “arises on a breach of duty by one in a confidential or fiduciary relationship to another which induces justifiable reliance by the latter to his prejudice.”’” (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1131 .) “It is essential to the operation of the doctrine of constructive fraud that there exist a fiduciary or special relationship.” (Peterson Development Co. v. Torrey Pines Bank (1991) 233 Cal.App

1992In reversing the conviction the Supreme Court stated, "the utilization of the felony-murder rule in circumstances such as those before us extends the operation of that rule `beyond any rational function that it is designed to serve.' [Citation.] To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault — a category which includes the great majority of all homicides." ( 70 Cal.2d at p. 539 .) (Italics added.) Ireland has been applied when th

1992In reversing the conviction the Supreme Court stated, "the utilization of the felony-murder rule in circumstances such as those before us extends the operation of that rule `beyond any rational function that it is designed to serve.' [Citation.] To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault — a category which includes the great majority of all homicides." ( 70 Cal.2d at p. 539 .) (Italics added.) Ireland has been applied when th

1991(See People v. Mancha (1974) 39 Cal.App.3d 703, 713 .) If a statute contains an express exception or exceptions, it will be presumed no others were intended.

1988(See People v. Mancha (1974) 39 Cal.App.3d 703, 713 [ 114 Cal.Rptr. 392 ].) If a statute contains an express exception or excep *593 tions, it will be presumed no others were intended.

1991(Williams v. Los Angeles Metropolitan Transit Authority (1968) 68 Cal.2d 599, 603 .) Under this maxim, the enumeration of acts, things, or persons as coming within the operation or exception of a statute will preclude the inclusion of other acts, things, or persons in the class.

1988(Williams v. Los Angeles Metropolitan Transit Authority (1968) 68 Cal.2d 599, 603 [ 68 Cal.Rptr. 297 , 440 P.2d 497 ].) Under this maxim, the enumeration of acts, things, or persons as coming within the operation or exception of a statute will preclude the inclusion of other acts, things, or persons in the class.

1986(In re Thierry S., supra, 19 Cal.3d 727, 744 .) To avoid its application, statutes in question are read together in an attempt to reconcile rather than nullify their meaning.

1979(In re Thierry S., 19 Cal.3d 727, 744 [ 139 Cal.Rptr. 708 , 566 P.2d 610 ].) “They [repeals by implication] are recognized only when there is no rational basis for harmonizing the two potentially conflicting statutes [citation], and the statutes are ‘irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation.