counts waiver in California

2026The trial court dismissed the remaining counts with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 .

2022On July 27, 2021, defendant pled no contest to counts 3 and 4 in exchange for the dismissal of the remaining counts with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 and a midterm prison sentence of three years eight months.

2026But to preserve this issue for appeal, Dunbar “was required to request an additional or clarifying instruction if he believed that the instruction was incomplete or needed elaboration.” (People v. Maury (2003) 30 Cal.4th 342, 426 ; ibid. [“ ‘error cannot now be predicated upon the trial court’s failure to [elaborate or clarify] on its own motion’ ”].) Turning to Dunbar’s trial counsel’s failure to renew the suppression motion, a court will deem an attorney’s assistance ineffective only if a defendant shows that (1) counsel’s representation fell below an objective 5 standard of reasonableness u

2026But to preserve this issue for appeal, Dunbar “was required to request an additional or clarifying instruction if he believed that the instruction was incomplete or needed elaboration.” (People v. Maury (2003) 30 Cal.4th 342, 426 ; ibid. [“ ‘error cannot now be predicated upon the trial court’s failure to [elaborate or clarify] on its own motion’ ”].) Turning to Dunbar’s trial counsel’s failure to renew the suppression motion, a court will deem an attorney’s assistance ineffective only if a defendant shows that (1) counsel’s representation fell below an objective 5 standard of reasonableness u

2022The term “common counts” does not identify a particular cause of action, but is simply a pleading device. “ ‘A common count is not a specific cause of action . . . rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness.’ ” (Korchemny v. Piterman (2021) 68 Cal.App.5th 1032 , 1047-1048, quoting McBride v. Boughton (2004) 123 Cal.App.4th 379, 394 .) This means that “ ‘[w]hen a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of prejudgment interest.

2022(In re J.C. (2014) 233 Cal.App.4th 1, 4 .) Mother contends there was insufficient evidence to support counts b-1, b-2, and b-3 of the petitions.

2015Third, defendant asserts the sentences imposed on all six counts constitute cruel and unusual punishment because, as a juvenile, he was sentenced to life without the possibility of parole (LWOP) on count 1 without consideration, inter alia, of the constraints imposed by the United States Supreme Court in Miller v. Alabama (2012) 567 U.S.__ [ 132 S.Ct. 2455 ] (Miller), and he was effectively sentenced to LWOP on the remaining counts in violation of, inter alia, People v. Caballero (2012) 55 Cal.4th 262 (Caballero).

2015Third, defendant asserts the sentences imposed on all six counts constitute cruel and unusual punishment because, as a juvenile, he was sentenced to life without the possibility of parole (LWOP) on count 1 without consideration, inter alia, of the constraints imposed by the United States Supreme Court in Miller v. Alabama (2012) 567 U.S.__ [ 132 S.Ct. 2455 ] (Miller), and he was effectively sentenced to LWOP on the remaining counts in violation of, inter alia, People v. Caballero (2012) 55 Cal.4th 262 (Caballero).

2013Bank (1955) 44 Cal.2d 401 , the Supreme Court acknowledged the general rule that a common count “„will not lie to enforce an express contract,‟” but the general rule “does not apply if the plaintiff owes no further performance under the contract and nothing remains to be done thereunder except the payment of money by the defendant.” (Id. at p. 409, italics added.) Similarly, in Barrere v. Somps (1896) 113 Cal. 97 , the court held that if an express contract is open and unexecuted and not rescinded by mutual consent, then a common counts claim is improper.

2013(Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 958 ; see Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1623 .) To recover on a common counts claim for the reasonable value of services rendered, “a plaintiff must establish both that he or she was acting pursuant to either an express or implied request for services from the defendant and that the services rendered were intended to and did benefit the defendant.” (Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782, 794 .) 1.

2013(Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 958 ; see Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1623 .) To recover on a common counts claim for the reasonable value of services rendered, “a plaintiff must establish both that he or she was acting pursuant to either an express or implied request for services from the defendant and that the services rendered were intended to and did benefit the defendant.” (Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782, 794 .) 1.

2013Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 .) These elements apply whether they are based upon an express contract, a contract implied in fact, or a quasi- contract. (4 Witkin, supra, § 554 at p. 682.) A common counts claim can be based upon performance by one party pursuant to a void contract or an express contract.

2013After entering his plea, defendant sought substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) on three occasions (May 28, July 9, and 1 Dec. 21, 2010) and each time his request was denied.

2013Bank (1955) 44 Cal.2d 401 , the Supreme Court acknowledged the general rule that a common count “„will not lie to enforce an express contract,‟” but the general rule “does not apply if the plaintiff owes no further performance under the contract and nothing remains to be done thereunder except the payment of money by the defendant.” (Id. at p. 409, italics added.) Similarly, in Barrere v. Somps (1896) 113 Cal. 97 , the court held that if an express contract is open and unexecuted and not rescinded by mutual consent, then a common counts claim is improper.

2011(City of Industry v. City of Fillmore, supra, 198 Cal.App.4th at p. 219 .) DISPOSITION The order granting the special motion to strike is affirmed as to the striking of the counts for violation of rule 3-310(C) and equitable indemnity and reversed as to the striking of the counts for breach of confidence and breach of fiduciary duty.