view doctrine in California

2011“The standard of review for a trial court’s decision to grant or deny a request for a jury view is abuse of discretion. [Citation.] When the purpose of the view is to test the veracity of a witness’s testimony about observations the witness made, the trial court may properly consider whether the conditions for the jury view will be substantially the same as those under which the witness made the observations, whether there are other means of testing the veracity of the witness’s testimony, and practical difficulties in conducting a jury view.” (People v. Price (1991) 1 Cal.4th 324, 422 [ 3 Cal

2011“The standard of review for a trial court’s decision to grant or deny a request for a jury view is abuse of discretion. [Citation.] When the purpose of the view is to test the veracity of a witness’s testimony about observations the witness made, the trial court may properly consider whether the conditions for the jury view will be substantially the same as those under which the witness made the observations, whether there are other means of testing the veracity of the witness’s testimony, and practical difficulties in conducting a jury view.” (People v. Price (1991) 1 Cal.4th 324, 422 [ 3 Cal

1980(Chapman v. California (1967) 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ].) Sandstrom left the question open on the ground that the Montana Supreme Court had not considered it and therefore the court in Sandstrom declined to consider it “as an initial matter here.” (Sandstrom v. Montana, supra, at p. 527 [ 61 L.Ed.2d at p. 53 , 99 S.Ct. at p. 2461].) We are of the view that the error is reversible per se.

1980(Chapman v. California (1967) 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ].) Sandstrom left the question open on the ground that the Montana Supreme Court had not considered it and therefore the court in Sandstrom declined to consider it “as an initial matter here.” (Sandstrom v. Montana, supra, at p. 527 [ 61 L.Ed.2d at p. 53 , 99 S.Ct. at p. 2461].) We are of the view that the error is reversible per se.

2014We disagree. *1022 “Section 1119 provides: ‘When, in the opinion of the court, it is proper that the jury should view the place in which the offense is charged to have been committed . . . , it may order the jury to be conducted in a body, in the custody of the sheriff or marshal, as the case may be, to the place . . . , which must be shown to them by a person appointed by the court for that purpose . . . .’ A court’s ruling on a party’s motion for a jury view is reviewed for abuse of discretion [citation], i.e., whether the court exercised its discretion in an arbitrary, capricious, or patent

2014We disagree. *1022 “Section 1119 provides: ‘When, in the opinion of the court, it is proper that the jury should view the place in which the offense is charged to have been committed . . . , it may order the jury to be conducted in a body, in the custody of the sheriff or marshal, as the case may be, to the place . . . , which must be shown to them by a person appointed by the court for that purpose . . . .’ A court’s ruling on a party’s motion for a jury view is reviewed for abuse of discretion [citation], i.e., whether the court exercised its discretion in an arbitrary, capricious, or patent

1992It is elementary that an appeal from a portion of a judgment brings up for review only that portion designated in the notice of appeal. [Citation.] While it is true that notices of appeal are to be liberally construed with a view to hearing causes on their merits [citation], we are of the opinion that the notice filed in the present case does not present ‘a mere misdescription’ of the judgment, calling for the application of said rule, but rather . . . that portion of the judgment appealed from is so clear and unmistakable as to preclude a description of that portion of the judgment denying ap

1992It is elementary that an appeal from a portion of a judgment brings up for review only that portion designated in the notice of appeal. [Citation.] While it is true that notices of appeal are to be liberally construed with a view to hearing causes on their merits [citation], we are of the opinion that the notice filed in the present case does not present ‘a mere misdescription’ of the judgment, calling for the application of said rule, but rather . . . that portion of the judgment appealed from is so clear and unmistakable as to preclude a description of that portion of the judgment denying ap

2023The notice is sufficient if it identifies the particular judgment or order being appealed.” (Cal. Rules of Court, rule 8.100(a)(2).) This rule of liberal construction “is intended to ‘implement the strong public policy favoring the hearing of appeals on the merits.’ (Norco Delivery Service, Inc. v. Owens-Corning Fiberglas, Inc. (1998) 64 Cal.App.4th 955, 960 ; see Glassco v. El Sereno Country Club, Inc. (1932) 217 Cal. 90, 92 [‘notices of appeal are to be liberally construed with a view to hearing causes on their merits’]; Kellett v. Marvel (1936) 6 Cal.2d 464, 471 [‘notices of appeal are libe

2020Inc. v. Owens-Corning Fiberglas, Inc. (1998) 64 Cal.App.4th 955, 960 ; see Glassco v. El Sereno Country Club, Inc. (1932) 217 Cal. 90, 92 [“notices of appeal are to be liberally construed with a view to hearing causes on their merits”]; Kellett v. Marvel (1936) 6 Cal.2d 464, 471 [“notices of appeal are liberally construed to preserve the right of review unless it appears that the respondent has been misled”].) Considered together, rules 8.100(a)(1) and 8.100(a)(2) reflect the different standards that govern the filing of the notice of appeal versus the content of the notice with respect to app

1972Although we are of the view that the error, if any, in receiving the photographs was not prejudicial ( People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ]), we nevertheless deal with the issue on the merits.

1972Although we are of the view that the error, if any, in receiving the photographs was not prejudicial ( People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ]), we nevertheless deal with the issue on the merits.

2023The notice is sufficient if it identifies the particular judgment or order being appealed.” (Cal. Rules of Court, rule 8.100(a)(2).) This rule of liberal construction “is intended to ‘implement the strong public policy favoring the hearing of appeals on the merits.’ (Norco Delivery Service, Inc. v. Owens-Corning Fiberglas, Inc. (1998) 64 Cal.App.4th 955, 960 ; see Glassco v. El Sereno Country Club, Inc. (1932) 217 Cal. 90, 92 [‘notices of appeal are to be liberally construed with a view to hearing causes on their merits’]; Kellett v. Marvel (1936) 6 Cal.2d 464, 471 [‘notices of appeal are libe

2020Inc. v. Owens-Corning Fiberglas, Inc. (1998) 64 Cal.App.4th 955, 960 ; see Glassco v. El Sereno Country Club, Inc. (1932) 217 Cal. 90, 92 [“notices of appeal are to be liberally construed with a view to hearing causes on their merits”]; Kellett v. Marvel (1936) 6 Cal.2d 464, 471 [“notices of appeal are liberally construed to preserve the right of review unless it appears that the respondent has been misled”].) Considered together, rules 8.100(a)(1) and 8.100(a)(2) reflect the different standards that govern the filing of the notice of appeal versus the content of the notice with respect to app

2003The California Supreme Court has addressed this issue in two cases— Ford, supra, 3 Cal.4th 339 , 11 Cal.Rptr.2d 30 , 834 P.2d 724 , and Cheong, supra, 16 Cal.4th 1063 , 68 Cal.Rptr.2d 859 , 946 P.2d 817—and has produced a number of opinions, leading one court to say "there appears to be no clear consensus on the high court about this issue." ( Campbell v. Derylo, supra, 75 Cal.App.4th at p. 829, fn. 3, 89 Cal.Rptr.2d 519 .) Nevertheless, a majority of the present California Supreme Court have expressed the view that a violation of a statute such as involved here does not displace the primary a

2003The California Supreme Court has addressed this issue in two cases— Ford, supra, 3 Cal.4th 339 , 11 Cal.Rptr.2d 30 , 834 P.2d 724 , and Cheong, supra, 16 Cal.4th 1063 , 68 Cal.Rptr.2d 859 , 946 P.2d 817—and has produced a number of opinions, leading one court to say "there appears to be no clear consensus on the high court about this issue." ( Campbell v. Derylo, supra, 75 Cal.App.4th at p. 829, fn. 3, 89 Cal.Rptr.2d 519 .) Nevertheless, a majority of the present California Supreme Court have expressed the view that a violation of a statute such as involved here does not displace the primary a

1989This narrow view of the privilege exception is consistent with the general rule that the statutory psychotherapist-patient privilege is to be liberally construed in favor of the patient. ( In re Lifschutz (1970) 2 Cal.3d 415, 437 [ 85 Cal. Rptr. 829 , 467 P.2d 557 , 44 A.L.R.3d 1 ].) Appellant's reliance on Collins v. Superior Court (1977) 74 Cal. App.3d 47 [ 141 Cal. Rptr. 273 ] is unavailing.

1989This narrow view of the privilege exception is consistent with the general rule that the statutory psychotherapist-patient privilege is to be liberally construed in favor of the patient. ( In re Lifschutz (1970) 2 Cal.3d 415, 437 [ 85 Cal. Rptr. 829 , 467 P.2d 557 , 44 A.L.R.3d 1 ].) Appellant's reliance on Collins v. Superior Court (1977) 74 Cal. App.3d 47 [ 141 Cal. Rptr. 273 ] is unavailing.

1965Whether one takes the view that a “mere fact” 2 instruction is necessary “to make clear to the jurors that it is not the mere happening of the accident, but is in the circumstances causing it, that fault and liability may be found” (Schauer, J. dissenting in Shaw v. Pacific Greyhound Lines (1958) 50 Cal.2d 153, 161 [ 323 P.2d 391 ]), or the view that such an instruction serves “no purpose except to confuse and mislead the jury” because human experience indicates that accidents do not generally happen unless someone is negligent (Carter, J., concurring in Phillips v. Noble (1958) 50 Cal.2d 163,

1965Whether one takes the view that a “mere fact” 2 instruction is necessary “to make clear to the jurors that it is not the mere happening of the accident, but is in the circumstances causing it, that fault and liability may be found” (Schauer, J. dissenting in Shaw v. Pacific Greyhound Lines (1958) 50 Cal.2d 153, 161 [ 323 P.2d 391 ]), or the view that such an instruction serves “no purpose except to confuse and mislead the jury” because human experience indicates that accidents do not generally happen unless someone is negligent (Carter, J., concurring in Phillips v. Noble (1958) 50 Cal.2d 163,

1965Whether one takes the view that a “mere fact” 2 instruction is necessary “to make clear to the jurors that it is not the mere happening of the accident, but is in the circumstances causing it, that fault and liability may be found” (Schauer, J. dissenting in Shaw v. Pacific Greyhound Lines (1958) 50 Cal.2d 153, 161 [ 323 P.2d 391 ]), or the view that such an instruction serves “no purpose except to confuse and mislead the jury” because human experience indicates that accidents do not generally happen unless someone is negligent (Carter, J., concurring in Phillips v. Noble (1958) 50 Cal.2d 163,

1965Whether one takes the view that a “mere fact” 2 instruction is necessary “to make clear to the jurors that it is not the mere happening of the accident, but is in the circumstances causing it, that fault and liability may be found” (Schauer, J. dissenting in Shaw v. Pacific Greyhound Lines (1958) 50 Cal.2d 153, 161 [ 323 P.2d 391 ]), or the view that such an instruction serves “no purpose except to confuse and mislead the jury” because human experience indicates that accidents do not generally happen unless someone is negligent (Carter, J., concurring in Phillips v. Noble (1958) 50 Cal.2d 163,

1965It should therefore perhaps be given the decent burial suggested by the aforementioned committee. 3 The difficulty of reconciling a “mere fact” instruction with the doctrine of res ipsa loquitur was apparently first noted in Ellis v. Jewett (1937) 18 Cal.App.2d 629, 634-637 [ 64 P.2d 432 ].

1965It should therefore perhaps be given the decent burial suggested by the aforementioned committee. 3 The difficulty of reconciling a “mere fact” instruction with the doctrine of res ipsa loquitur was apparently first noted in Ellis v. Jewett (1937) 18 Cal.App.2d 629, 634-637 [ 64 P.2d 432 ].

1954It is elementary that an appeal from a portion of a judgment brings up for review only that portion designated in the notice of appeal. (2 Cal.Jur. 155, sec. 25.) While it is true that notices of appeal are to be liberally construed with a view to hearing causes on their merits (Harrelson v. Miller & Lux, 182 Cal. 408, 414 [ 188 P. 800 ]), we are of the opinion that the notice filed in the present case does not present 'a mere misdescription' of the judgment, calling for the application of said rule, but rather presents a situation somewhat analogous to that presented in Dimity v. Dixon, 74 Ca

1954It is elementary that an appeal from a portion of a judgment brings up for review only that portion designated in the notice of appeal. (2 Cal.Jur. 155, sec. 25.) While it is true that notices of appeal are to be liberally construed with a view to hearing causes on their merits (Harrelson v. Miller & Lux, 182 Cal. 408, 414 [ 188 P. 800 ]), we are of the opinion that the notice filed in the present case does not present 'a mere misdescription' of the judgment, calling for the application of said rule, but rather presents a situation somewhat analogous to that presented in Dimity v. Dixon, 74 Ca

2003(Id at p. 1273, 102 Cal.Rptr.2d 813 .) The court therefore concluded that the statutory provisions "do not abrogate the Knight primary assumption of the risk doctrine, and thus do not impose on participants in the sport of off-roading a higher or different duty in tort than is established under Knight." (Id. at p. 1274, 102 Cal. Rptr.2d 813 .) Because a majority of the current Supreme Court justices have expressed the view that a violation of a statute that indicates no legislative intent to eliminate the assumption of risk defense does not displace the primary assumption of risk doctrine, and

2003(Id at p. 1273, 102 Cal.Rptr.2d 813 .) The court therefore concluded that the statutory provisions "do not abrogate the Knight primary assumption of the risk doctrine, and thus do not impose on participants in the sport of off-roading a higher or different duty in tort than is established under Knight." (Id. at p. 1274, 102 Cal. Rptr.2d 813 .) Because a majority of the current Supreme Court justices have expressed the view that a violation of a statute that indicates no legislative intent to eliminate the assumption of risk defense does not displace the primary assumption of risk doctrine, and

2024(Id. at p. 212.) The majority opinion noted that (1) on appeal, plaintiffs in the quiet title action did not persuasively explain why the appellate court should create an immovable property exception to the doctrine of tribal sovereign immunity (id. at p. 218) and (2) the facts of the case made it a poor vehicle for taking the immovable property exception present in the related doctrine of state sovereign immunity and extending that exception to the doctrine of tribal sovereign immunity (id. at p. 221; see id. at p. 216).5 A concurring opinion expressed the view that the doctrine of tribal sov

2023(People v. Nieves, supra, 11 Cal.5th at p. 496 [where the trial judge’s improper and “excessively punitive” comments took place outside the jury’s presence, the reviewing court “[could not] conclude that they amounted to misconduct [since] the record [did] not demonstrate how they might have influenced the jury or otherwise affected the trial”]; People v. Silveria and Travis, supra, 10 Cal.5th at p. 320 [judicial remarks “could not have prejudiced either jury’s view of [defendant or his counsel]” as they were made 34 outside the jury’s presence].) We thus conclude on this record defendant has

2023(People v. Nieves, supra, 11 Cal.5th at p. 496 [where the trial judge’s improper and “excessively punitive” comments took place outside the jury’s presence, the reviewing court “[could not] conclude that they amounted to misconduct [since] the record [did] not demonstrate how they might have influenced the jury or otherwise affected the trial”]; People v. Silveria and Travis, supra, 10 Cal.5th at p. 320 [judicial remarks “could not have prejudiced either jury’s view of [defendant or his counsel]” as they were made 34 outside the jury’s presence].) We thus conclude on this record defendant has

2020(See Beltram v. Appellate Department (1977) 66 Cal.App.3d 711, 714 (Beltram) [“[t]he general rule is that although failure to file a notice of appeal is a jurisdictional defect that cannot be remedied, once a notice is filed it is to be construed liberally in favor of its sufficiency”].) Once a notice of appeal is timely filed, the liberal construction requirement compels a reviewing court to evaluate whether the notice, despite any technical defect, nonetheless served its basic function — to provide notice of who is seeking review of what order or judgment — so as to properly invoke appellate