consideration factors in California

2026(People v. Alaniz (2017) 16 Cal.App.5th 1, 7 [“a jury’s consideration of the defense’s failure to call logical witnesses is proper and does not impermissibly shift the burden of proof”].) The prosecutor did not insinuate, nor could the jury have reasonably inferred, that Cerratos would be required to testify to establish the shotgun’s 15 registration, or to describe the results of knife or shotgun DNA testing.

2023(See People v. Lewis (2009) 46 Cal.4th 1255, 1305 [“There is no reasonable likelihood the jury would have understood the prosecutor’s remarks [about logical witnesses] to suggest that defendant had the burden to establish his own whereabouts that evening.”]; People v. Ratliff (1986) 41 Cal.3d 675 , 690–691 [prosecutor’s remark that defense failed to present alibi testimony did not “suggest[] that defendant had a burden of proof which he failed to carry”]; People v. Alaniz (2017) 16 Cal.App.5th 1, 7 [“in general, a jury’s consideration of the defense’s failure to call logical witnesses is prope

2025(Ketchum, supra, 24 Cal.4th at p. 1131 .) To calculate the amount of attorneys’ fees, the court begins with a lodestar figure based upon the number of hours reasonably expended multiplied by the reasonable hourly rate prevailing in the community for similar work.3 (Frym, supra, 82 Cal.App.5th at p. 621.) The lodestar figure may be increased or decreased depending on a variety of factors, and “the trial court has discretion to determine the amount of reasonable fees to award based on ‘a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience a

2025(Ketchum, supra, 24 Cal.4th at p. 1131 .) To calculate the amount of attorneys’ fees, the court begins with a lodestar figure based upon the number of hours reasonably expended multiplied by the reasonable hourly rate prevailing in the community for similar work.3 (Frym, supra, 82 Cal.App.5th at p. 621.) The lodestar figure may be increased or decreased depending on a variety of factors, and “the trial court has discretion to determine the amount of reasonable fees to award based on ‘a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience a

2024Code, § 1150.) If the evidence is admissible, the trial court must determine whether the facts establish misconduct. [Citation.] Lastly, assuming misconduct, the trial court must determine whether the misconduct was prejudicial.’ ” (Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 160 (Whitlock).) “ ‘A showing of misconduct creates a presumption of prejudice . . . .’ [Citation.] This presumption may be rebutted by ‘ “an affirmative evidentiary showing that prejudice does not exist” ’ based upon a consideration of such factors as ‘ “the strength of the evidence that 7 misconduct occu

2024Code, § 1150.) If the evidence is admissible, the trial court must determine whether the facts establish misconduct. [Citation.] Lastly, assuming misconduct, the trial court must determine whether the misconduct was prejudicial.’ ” (Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 160 (Whitlock).) “ ‘A showing of misconduct creates a presumption of prejudice . . . .’ [Citation.] This presumption may be rebutted by ‘ “an affirmative evidentiary showing that prejudice does not exist” ’ based upon a consideration of such factors as ‘ “the strength of the evidence that 7 misconduct occu

2017PG&E similarly misplaces reliance on Johnson v. Unocal Corp. (1993) 21 Cal.App.4th 310, 316 [ 26 Cal.Rptr.2d 148 ] (Johnson) for the proposition that there must be an “ ‘actual payment of an entrance fee to the defendant.’ ” (Italics added by PG&E.) Johnson did not address whether the consideration exception applies only to a party who receives payment of consideration; rather, it addressed what constitutes consideration for purposes of the exception.

2017PG&E similarly misplaces reliance on Johnson v. Unocal Corp. (1993) 21 Cal.App.4th 310, 316 [ 26 Cal.Rptr.2d 148 ] (Johnson) for the proposition that there must be an “ ‘actual payment of an entrance fee to the defendant.’ ” (Italics added by PG&E.) Johnson did not address whether the consideration exception applies only to a party who receives payment of consideration; rather, it addressed what constitutes consideration for purposes of the exception.

2017(See Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 114 [ 96 Cal.Rptr.2d 394 ] [exception for those who are personally invited reflects Legislature’s understanding that “[property owners do not need governmental encouragement to permit personal guests to come onto their land”].) Regarding the consideration exception in particular, as Zachary states in his brief, “[o]nce permission to enter for a recreational purpose is conditioned upon the payment of a consideration, the property is no longer open to the public to recreate ‘free of charge’ ” and so “[t]he reason for the immunity evaporates.” And,

2017(See Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 114 [ 96 Cal.Rptr.2d 394 ] [exception for those who are personally invited reflects Legislature’s understanding that “[property owners do not need governmental encouragement to permit personal guests to come onto their land”].) Regarding the consideration exception in particular, as Zachary states in his brief, “[o]nce permission to enter for a recreational purpose is conditioned upon the payment of a consideration, the property is no longer open to the public to recreate ‘free of charge’ ” and so “[t]he reason for the immunity evaporates.” And,

2017(See Johnson , at p. 316 [rejecting interpretation that would “encourage an injured recreational user to claim that nearly any rule, restriction or regulation imposed by a landlord” granting free access would abrogate immunity]; Mansion v. U.S., supra, 945 F.2d at p. 1119 [rejecting interpretation that “would expand ad absurdum allowing the exception to effectively swallow the rule”].) Here, though, all we decide is that payment of any consideration for permission to enter property for a recreational purpose abrogates the immunity under section 846 for anyone potentially responsible for the pl

2017(See Johnson, at p. 316 [rejecting interpretation that would “encourage an injured recreational user to claim that nearly any rule, restriction or regulation imposed by a landlord” granting free access would abrogate immunity]; Mansion v. United States, supra, 945 F.2d at p. 1119 [rejecting interpretation that “would expand ad absurdum allowing the exception to effectively swallow the rule”].) Here, though, all we decide is that payment of any consideration for permission to enter property for a recreational purpose abrogates the immunity under section 846 for anyone potentially responsible fo

2017(See Wang v. Nibbelink (2016) 4 Cal.App.5th 1, 18 [ 208 Cal.Rptr.3d 461 ] (Wang) [rejecting construction of § 846 that “would have us add language not placed there by the Legislature”]; cf. Ornelas, supra, 4 Cal.4th at p. 1105 [rejecting construction of § 846 that entailed a “a purely judicial construct, without any basis or support in the statutory language”]; Wang , at p. 18 [“Ornelas declined to add language to the statute”].) In arguing for a construction that would narrow the operation of section 846, paragraph 4, PG&E contends the key statutory language is the phrase, “said landowner.” P

2017PG&E’s Remaining Contentions Having concluded the consideration exception applies here, we come to PG&E’s remaining arguments in favor of narrowing the exception, and reject them. 20 A. The Statute’s Breadth PG&E argues the consideration exception should be narrowly construed, citing authority that section 846 is “extremely broad” in scope *586 (Ornelas, supra, 4 Cal.4th at p. 1105 ) and that exceptions to immunity should be construed narrowly (Johnson, supra, 21 Cal.App.4th at p. 315 ).

2017Public Policy Considerations While not dispositive, we also consider the public policy implications of a particular interpretation, “to ensure that the construction we adopt will *580 not produce manifestly adverse effects that the Legislature could not have intended when it enacted that law.” (Klein, supra, 50 Cal.4th at p. 83 .) As explained, construing the consideration exception to apply whenever consideration is paid for permission to enter land for a recreational purpose, regardless of whether the payment inures to the benefit of the defendant claiming immunity, is consistent with Legisl

2017“Although section 846 is broad in many respects,” the court said, “it is not all-encompassing.” (Klein, supra, 50 Cal.4th at p. 81 .) Furthermore, cases declining to construe the consideration exception broadly rejected interpretations that were practically limitless.

2017(See Wang v. Nibbelink (2016) 4 Cal.App.5th 1, 18 [ 208 Cal.Rptr.3d 461 ] (Wang) [rejecting construction of § 846 that “would have us add language not placed there by the Legislature”]; cf. Ornelas, supra, 4 Cal.4th at p. 1105 [rejecting construction of § 846 that entailed a “a purely judicial construct, without any basis or support in the statutory language”]; Wang , at p. 18 [“Ornelas declined to add language to the statute”].) In arguing for a construction that would narrow the operation of section 846, paragraph 4, PG&E contends the key statutory language is the phrase, “said landowner.” P

2017(See Wang v. Nibbelink (2016) 4 Cal.App.5th 1, 18 [ 208 Cal.Rptr.3d 461 ] (Wang) [rejecting construction of § 846 that “would have us add language not placed there by the Legislature”]; cf. Ornelas, supra, 4 Cal.4th at p. 1105 [rejecting construction of § 846 that entailed a “a purely judicial construct, without any basis or support in the statutory language”]; Wang , at p. 18 [“Ornelas declined to add language to the statute”].) In arguing for a construction that would narrow the operation of section 846, paragraph 4, PG&E contends the key statutory language is the phrase, “said landowner.” P

2016(Ibid.) The lodestar figure may then be adjusted up or down to arrive at the fair market value for the legal services provided, based on the trial court's consideration of factors " 'including the nature of the 8 litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.' " (Id. at p. 1096; see also Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154 (Graciano).) This court reviews an order granting or denying attorney fees for abuse of discretion. (

2016(Ibid.) The lodestar figure may then be adjusted up or down to arrive at the fair market value for the legal services provided, based on the trial court's consideration of factors " 'including the nature of the 8 litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.' " (Id. at p. 1096; see also Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154 (Graciano).) This court reviews an order granting or denying attorney fees for abuse of discretion. (

2026Proc., § 425.16, subd. (c)(1); Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321 ; Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 21 .) “The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved.” (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443 , 448.) The appellant carries the burden to affirmatively demonstrate the trial cou

2025(Ketchum, supra, 24 Cal.4th at p. 1131 .) To calculate the amount of attorneys’ fees, the court begins with a lodestar figure based upon the number of hours reasonably expended multiplied by the reasonable hourly rate prevailing in the community for similar work.3 (Frym, supra, 82 Cal.App.5th at p. 621.) The lodestar figure may be increased or decreased depending on a variety of factors, and “the trial court has discretion to determine the amount of reasonable fees to award based on ‘a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience a

2023The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. 24 [Citation.] Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary.’ ” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1134 [permitting use of lodestar adjustment method for § 425.16], quoting Serrano v. Priest (1977) 20 Cal.3d 25, 49 .) “The reasonableness of attorney fees is within the discretion of th

2016(Ibid.) The lodestar figure may then be adjusted up or down to arrive at the fair market value for the legal services provided, based on the trial court's consideration of factors " 'including the nature of the 8 litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.' " (Id. at p. 1096; see also Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154 (Graciano).) This court reviews an order granting or denying attorney fees for abuse of discretion. (

2017(See Johnson , at p. 316 [“we are aware of no cases in which the consideration did not involve the actual payment of an entrance fee by plaintiff to defendant”].) In addition, PG&E cites a portion of the First Circuit’s per curiam decision in Collins v. Martella (1st Cir. 1994) 17 F.3d 1 construing New Hampshire’s recreational use immunity statute, stating that the consideration exception is not triggered “simply because a benefit is paid to an unconnected third party.” (Id. at pp. 2, 5.) The parties disagree whether this language is dictum or an alternative holding but, regardless, PG&E takes

2017(See Johnson, at p. 316 [“we are aware of no cases in which the consideration did not involve the actual payment of an entrance fee by plaintiff to defendant”].) In addition, PG&E cites a portion of the First Circuit’s per curiam decision in Collins v. Martella (1st Cir. 1994) 17 F.3d 1 construing New Hampshire’s recreational use immunity statute, stating that the consideration exception is not triggered “simply because a benefit is paid to an unconnected third party.” (Id. at pp. 2, 5.) The parties disagree whether this language is dictum or an alternative holding but, regardless, PG&E takes

1993(Jaynes v. Stockton (1961) 193 Cal.App.2d 47 , 51- 52.) Services may be special because of the outstanding skill or expertise of the person furnishing them.

1988(Jaynes v. Stockton (1961) 193 Cal.App.2d 47, 51-52 .) Services may be special because of the outstanding skill or expertise of the person furnishing them.

2026Plaintiffs argue the trial court properly instructed the jury that defendant had a duty to protect them, without any limitations on that duty based on a consideration of the factors set forth in Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland).

1995The majority fails to analyze the major factors which determine if a landowner owes a duty to third persons: the foreseeability of harm to plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to defendant's conduct, the policy of preventing future harm, the extent of defendant's burden compared to the consequence to the community, and the availability of insurance for the risk involved. ( Rowland v. Christian (1968) 69 Cal.2d 108, 112-113 [70 Cal. Rptr. *490 97, 4

2016(In re Kerry O. (1989) 210 Cal.App.3d 326, 333 .) At the permanency planning hearing the court has numerous choices, with termination of parental rights and an order for the child to be placed for adoption, as the first choice. (§ 366.26, subd. (b)(1).) "Guardianship, while a more stable placement than foster care, is not irrevocable and thus falls short of the secure and permanent future the Legislature had in mind for the dependent child." (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1344 .) 7 To support this beneficial relationship exception to adoption, the court must find "a compelling r

2016(In re Kerry O. (1989) 210 Cal.App.3d 326, 333 .) At the permanency planning hearing the court has numerous choices, with termination of parental rights and placement for adoption as the first choice. (§ 366.26, subd. (b)(1).) To support an asserted beneficial relationship exception to adoption, the court must find "a compelling reason for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B); In re C.F. (2011) 193 Cal.App.4th 549, 553 (C.F.).) The juvenile court considers the detriment issue on a case-by-case basis, taking into account the many variables

2015Proc., § 389, subd. (b).)” (City of San Diego v. San Diego City Employees’ Retirement System (2010) 186 Cal.App.4th 69, 83-84 .) No one factor is decisive and the court’s consideration of the factors largely depends the facts of the case.

2014Proc., § 389, subd. (b).)” (City of San Diego v. San Diego City Employees’ Retirement System (2010) 186 Cal.App.4th 69, 83-84 [ 111 Cal.Rptr.3d 418 ].) “None of these factors is determinative or necessarily more important than another. [Citations.] Further, the court’s consideration of these factors largely depends on the facts and circumstances of each case. [Citation.] ‘Whether a party is necessary and/or indispensable is a matter of trial court discretion in which the court weighs “factors of practical realities and other considerations.” ’ [Citation.] ‘A court has the power to proceed with