strange claim in California

2019That assertion cannot possibly be right, so it is plainly wrong.' ( Quigley v. Vose (1st Cir. 1987) 834 F.2d 14 , 16 ; accord, Becht v. U.S. (8th Cir. 2005) 403 F.3d 541 , 548 ["it would be 'anomalous' to preclude harmless-error review under Chapman 'because the jury also was given the option to convict based on a constitutionally valid theory ...'] ....)" ( Cross , at p. 71, 82 Cal.Rptr.3d 373 , 190 P.3d 706 (conc. opn. of Baxter, J.).) A few months after Justice Baxter wrote this in Cross , the high court expressed similar views in the case that he mentioned. ( Hedgpeth , supra , 555 U.S. 57

2019That assertion cannot possibly be right, so it is plainly wrong.' ( Quigley v. Vose (1st Cir. 1987) 834 F.2d 14 , 16 ; accord, Becht v. U.S. (8th Cir. 2005) 403 F.3d 541 , 548 ["it would be 'anomalous' to preclude harmless-error review under Chapman 'because the jury also was given the option to convict based on a constitutionally valid theory ...'] ....)" ( Cross , at p. 71, 82 Cal.Rptr.3d 373 , 190 P.3d 706 (conc. opn. of Baxter, J.).) A few months after Justice Baxter wrote this in Cross , the high court expressed similar views in the case that he mentioned. ( Hedgpeth , supra , 555 U.S. 57

2026Strange “forfeited his constitutional claims by failing to object on these grounds at trial.” (People v. Carter (2003) 30 Cal.4th 1166, 1196, fn. 6 .) In any event, “[w]hen expert evidence is excluded because it fails to meet foundational requirements, no federal constitutional violation occurs.” (Fortin, 12 Cal.App.5th at p. 534 .) G.

2023This rule is based on fairness—it would be unfair, both to the trial court and the opposing litigants, to permit a change of theory on appeal.’ ” (Nellie Gail Ranch 8 Plaintiff argues in his reply brief that CalPERS “makes a strange waiver claim” regarding his argument that the CIO is not an employee— plaintiff asserts CalPERS “does not claim that he has waived this entire argument,” only that he “cannot rely on the Attorney General’s opinion to support it.” We have carefully reviewed CalPERS’s opposition brief and have concluded this is not an accurate characterization of CalPERS’s argument.

2023(See, e.g., NBC Universal Media, LLC v. Superior Court (2014) 225 Cal.App.4th 1222, 1237 [declining to consider issue requiring application of equitable principles to undeveloped record]; City of Newport Beach v. Sasse (1970) 9 Cal.App.3d 803 , 811–812 [court would not consider new defense involving legal and factual questions open to controversy and not presented at trial].) As both parties argue, the terms “public office” and “public officer” have no fixed meaning in California, and the distinction between an employee and a public officer varies according to context.

2023This rule is based on fairness—it would be unfair, both to the trial court and the opposing litigants, to permit a change of theory on appeal.’ ” (Nellie Gail Ranch 8 Plaintiff argues in his reply brief that CalPERS “makes a strange waiver claim” regarding his argument that the CIO is not an employee— plaintiff asserts CalPERS “does not claim that he has waived this entire argument,” only that he “cannot rely on the Attorney General’s opinion to support it.” We have carefully reviewed CalPERS’s opposition brief and have concluded this is not an accurate characterization of CalPERS’s argument.

2023In Aledamat, we recognized that “ ‘drawing a distinction between alternative-theory error and the instructional errors in [several cases including Neder] would be “patently illogical,” given that such a distinction “ ‘reduces to the strange claim that, because the jury . . . received both a “good” charge and a “bad” charge on the issue, the error was somehow more pernicious than . . . where the only charge on the critical issue was a mistaken one.’ ” ’ ” (Aledamat, supra, 8 Cal.5th at p. 11 , quoting Hedgpeth, supra, 555 U.S. at p. 61 .) Yet Lopez’s proposed protocol would make such an illogic

2019That assertion cannot possibly be right, so it is plainly wrong.' ( Quigley v. Vose (1st Cir. 1987) 834 F.2d 14 , 16 ; accord, Becht v. U.S. (8th Cir. 2005) 403 F.3d 541 , 548 ["it would be 'anomalous' to preclude harmless-error review under Chapman 'because the jury also was given the option to convict based on a constitutionally valid theory ...'] ....)" ( Cross , at p. 71, 82 Cal.Rptr.3d 373 , 190 P.3d 706 (conc. opn. of Baxter, J.).) A few months after Justice Baxter wrote this in Cross , the high court expressed similar views in the case that he mentioned. ( Hedgpeth , supra , 555 U.S. 57

2008Defendant's argument "reduces to the strange claim that, because the jury here received both a `good' charge and a `bad' charge on the issue, the error was somehow more pernicious than in Rose [ v. Clark (1986) 478 U.S. 570 [ 92 L.Ed.2d 460 , 106 S.Ct. 3101 ]— where the only charge on the critical issue was a mistaken one.

2008Defendant's argument "reduces to the strange claim that, because the jury here received both a `good' charge and a `bad' charge on the issue, the error was somehow more pernicious than in Rose [ v. Clark (1986) 478 U.S. 570 [ 92 L.Ed.2d 460 , 106 S.Ct. 3101 ]— where the only charge on the critical issue was a mistaken one.

2008That assertion cannot possibly be right, so it is plainly wrong." ( Quigley v. Vose (1st Cir. 1987) 834 F.2d 14, 16 ; accord, Becht v. U.S. (8th Cir. 2005) 403 F.3d 541, 548 [it would be "anomalous" to preclude harmless-error review under Chapman "because the jury also was given the option to convict based on a constitutionally valid theory"]; cf. U.S. v. Edwards (5th Cir. 2002) 303 F.3d 606, 641 [holding that the standard of harmlessness set forth in Griffin v. United States (1991) 502 U.S. 46 [ 116 L.Ed.2d 371 , 112 S.Ct. 466 ] applies "where a disjunctive instruction with a factually insuff

2008That assertion cannot possibly be right, so it is plainly wrong." ( Quigley v. Vose (1st Cir. 1987) 834 F.2d 14, 16 ; accord, Becht v. U.S. (8th Cir. 2005) 403 F.3d 541, 548 [it would be "anomalous" to preclude harmless-error review under Chapman "because the jury also was given the option to convict based on a constitutionally valid theory"]; cf. U.S. v. Edwards (5th Cir. 2002) 303 F.3d 606, 641 [holding that the standard of harmlessness set forth in Griffin v. United States (1991) 502 U.S. 46 [ 116 L.Ed.2d 371 , 112 S.Ct. 466 ] applies "where a disjunctive instruction with a factually insuff

2000The Erie doctrine ... is not applicable here . . . .” ( 303 F.2d at p. 340 , citations omitted.) *1455 The Ninth Circuit bases its contrary rule, without extended analysis, on the Erie doctrine, 10 28 United States Code section 1652 , 11 and Oklahoma Packing Co. v. Gas Co. (1940) 309 U.S. 4 [ 60 S.Ct. 215 , 84 L.Ed. 537 ] (prior action in state court).

2000The Erie doctrine ... is not applicable here . . . .” ( 303 F.2d at p. 340 , citations omitted.) *1455 The Ninth Circuit bases its contrary rule, without extended analysis, on the Erie doctrine, 10 28 United States Code section 1652 , 11 and Oklahoma Packing Co. v. Gas Co. (1940) 309 U.S. 4 [ 60 S.Ct. 215 , 84 L.Ed. 537 ] (prior action in state court).

2000The Erie doctrine ... is not applicable here . . . .” ( 303 F.2d at p. 340 , citations omitted.) *1455 The Ninth Circuit bases its contrary rule, without extended analysis, on the Erie doctrine, 10 28 United States Code section 1652 , 11 and Oklahoma Packing Co. v. Gas Co. (1940) 309 U.S. 4 [ 60 S.Ct. 215 , 84 L.Ed. 537 ] (prior action in state court).

1972The *1003 authorities do not support any such unreasonable doctrine.” (356 Ill. at pp. 220-221 [ 190 N.E. at p. 269 ].) The court ruled that under the circumstances there could be no estoppel by the consent judgments, and it restrained the collection of taxes to pay the bonds issued to pay the judgments.

1970(See Kellett v. Superior Court, supra, 63 Cal.2d 822, 824-825 .) It would be a strange rule indeed if Young, following his completed act of rape, and having had an opportunity to depart the premises, was given a sort of immunity from punishment for any other crime he might thereafter choose to commit against his victim.

1966(Davis v. Pacific Studios Corp., supra, 84 Cal.App. 611, 622-625 ; Stevens v. Selma Fruit Co., Inc., supra, 18 Cal.App. 242, 250-256 ; and see Lowe v. Los Angeles Suburban Gas Co., supra, 24 Cal.App. 367, 374 .) It would be a strange doctrine, however, that exonerated the corporation of the knowledge of the officer acting adversely to it but charged it with the knowledge of his confederate.

1966(Davis v. Pacific Studios Corp., supra, 84 Cal.App. 611, 622-625 ; Stevens v. Selma Fruit Co., Inc., supra, 18 Cal.App. 242, 250-256 ; and see Lowe v. Los Angeles Suburban Gas Co., supra, 24 Cal.App. 367, 374 .) It would be a strange doctrine, however, that exonerated the corporation of the knowledge of the officer acting adversely to it but charged it with the knowledge of his confederate.

1966(Davis v. Pacific Studios Corp., supra, 84 Cal.App. 611, 622-625 ; Stevens v. Selma Fruit Co., Inc., supra, 18 Cal.App. 242, 250-256 ; and see Lowe v. Los Angeles Suburban Gas Co., supra, 24 Cal.App. 367, 374 .) It would be a strange doctrine, however, that exonerated the corporation of the knowledge of the officer acting adversely to it but charged it with the knowledge of his confederate.

1955Similarly the acceptance of payment of a balance shown to be due on an account rendered by a debtor to his creditor ordinarily constitutes an account stated as against the party accepting the payment. (1 Cal.Jur.2d p. 379; Hansen v. Fresno Jersey Farm Dairy Co. (1934), 220 Cal. 402, 408 [ 31 P.2d 359 ]; Wallace v. Crawford (1937), 21 Cal.App.2d 394, 404 [ 69 P.2d 455 ].) It has also been said that a debtor cannot destroy the legal effect of an account stated “by subsequently refusing to pay, nor can the creditor avoid its effect by refusing to accept the amount as the balance due.” (1 C.J.S. p

1955Similarly the acceptance of payment of a balance shown to be due on an account rendered by a debtor to his creditor ordinarily constitutes an account stated as against the party accepting the payment. (1 Cal.Jur.2d p. 379; Hansen v. Fresno Jersey Farm Dairy Co. (1934), 220 Cal. 402, 408 [ 31 P.2d 359 ]; Wallace v. Crawford (1937), 21 Cal.App.2d 394, 404 [ 69 P.2d 455 ].) It has also been said that a debtor cannot destroy the legal effect of an account stated “by subsequently refusing to pay, nor can the creditor avoid its effect by refusing to accept the amount as the balance due.” (1 C.J.S. p

1948(Shearer v. Cooper, 21 Cal.2d 695, 702, 705 [ 134 P.2d 764 ]; Denson v. Pressey, 13 Cal. *205 App.2d 472, 476-7 [ 57 P.2d 522 ]; Younis v. Hart, 59 Cal.App. 2d 99,104-5 [ 138 P.2d 323 ].) It is a strange defense to rely on other misrepresentations in an effort to avoid the one most strongly urged by plaintiffs.

1945But to extend the effect of the evidence, my associate calls to his aid the strange doctrine stated in Estate of Bristol, 23 Cal.2d 221 [ 143 P.2d 689 ], declaring that in reading the record to ascertain whether there is evidence sufficient to sustain a finding, “the court should be realistic and practical.” In effect, he says, there is no evidence tending to prove that the oil on the sidewalk created either a dangerous or defective condition, but because, as the street superintendent admitted, rain causes erosion, the court should realistically and practically extend the evidence to support a

1945But to extend the effect of the evidence, my associate calls to his aid the strange doctrine stated in Estate of Bristol, 23 Cal.2d 221 [ 143 P.2d 689 ], declaring that in reading the record to ascertain whether there is evidence sufficient to sustain a finding, “the court should be realistic and practical.” In effect, he says, there is no evidence tending to prove that the oil on the sidewalk created either a dangerous or defective condition, but because, as the street superintendent admitted, rain causes erosion, the court should realistically and practically extend the evidence to support a