disjunctive test (California) · Go Syfert
← California issues

disjunctive test in California

15 California opinions name it 2 courts 1896–2026 2 in the last five years

The cases below were cited by California courts in a sentence that names this issue. Sides come from how each citing opinion treated the case (Syfertize flag on that citation), so a case can appear on both: that is where the law is contested. A red or yellow chip is the case's own overall treatment.

Followed or applied (20)

CaseFollowedCited
Farmers Insurance Group v. County of Santa Claragreen
cal · 1995 · cited in 3 California opinions naming this issue, 2014–2026
2 sentences

2026(Farmers, supra, 11 Cal.4th at p. 1004 .) Stated differently, the employment “must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought.” (Lisa M., supra, 12 Cal.4th at p. 299 .) Under the two-prong disjunctive test adopted in Bailey, an employee acts within the scope of employment if the conduct either (1) is required by or incidental to the employee’s duties, or (2) it is reasonably foreseeable in light of the employer’s business.

2026(Id. at pp. 298-299; see also Musgrove v. Silver (2022) 82 Cal.App.5th 694 , 708-710 [naming the four tests].) Under the latter formulation, foreseeability in the context of determining scope of employment means that in the context of the particular enterprise an employee’s conduct is “ ‘not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.’ ” (Farmers, supra, 11 Cal.4th at p. 1004 .) Some courts have condensed the foreseeability premise into a two-prong disjunctive test.

13
Bailey v. Filco, Inc.green
calctapp · 1996 · cited in 3 California opinions naming this issue, 2014–2026
2 sentences

2026A jury could therefore conclude that an employee’s misuse of that access for personal purposes was not so unusual or startling as to fall outside the risks inherent in the County’s enterprise. 10 Accordingly, a reasonable jury could find that Wilson’s conduct satisfied either prong of the disjunctive test in Bailey, supra, 48 Cal.App.4th 1552 .

2026(Bailey, supra, 48 Cal.App.4th at p. 1559 .) The conduct of an employee falls within the scope of his or her employment if the conduct either (1) is required by or incidental to the employee’s duties, or (2) it is reasonably foreseeable in light of the employer’s business.

13
People v. Garciagreen
cal · 1999 · cited in 1 California opinions naming this issue, 2024–2024
1 sentence

2024The Legislature’s retention of crimes ordinarily committed by persons acting alone is an additional indication that predicate offenses can be committed by individual gang members and do not have to be committed by multiple gang members acting in concert. 11 PEOPLE v. CLARK Opinion of the Court by Kruger, J. collective engagement, Delgado effectively rewrites section 186.22(e)(1) to give it a meaning at odds with its text — that predicate offenses may be “committed on separate occasions by two or more members, or by two or more members.” The result of the insertion is not just to create an awkw

11
United States v. Edwin Edwards Stephen Edwards Cecil Brown Andrew Martin Bobby Johnsongreen
ca5 · 2002 · cited in 1 California opinions naming this issue, 2008–2008
2 sentences

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 i

11
Jason Albert Becht v. United Statesgreen
ca8 · 2005 · cited in 1 California opinions naming this issue, 2008–2008
2 sentences

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 i

11
People v. Michaelsgreen
cal · 2002 · cited in 1 California opinions naming this issue, 2005–2005
2 sentences

2005(Cf. People v. San Nicolas (2004) 34 Cal.4th 614, 669 [ 21 Cal.Rptr.3d 612 , 101 P.3d 509 ]; People v. Maury (2003) 30 Cal.4th 342, 424 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ]; People v. Michaels (2002) 28 Cal.4th 486, 529 [ 122 Cal.Rptr.2d 285 , 49 P.3d 1032 ]; People v. Barton (1995) 12 Cal.4th 186, 194-195 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ]; People v. Johnson (1993) 6 Cal.4th 1, 43-45 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ]; People v. Ainsworth (1988) 45 Cal.3d 984, 1026 [ 248 Cal.Rptr. 568 , 755 P.2d 1017 ] [citing test erroneously as conjunctive]; People v. Wickersham (1982) 32 Cal.3d 307, 3

2005(Cf. People v. San Nicolas (2004) 34 Cal.4th 614, 669 [ 21 Cal.Rptr.3d 612 , 101 P.3d 509 ]; People v. Maury (2003) 30 Cal.4th 342, 424 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ]; People v. Michaels (2002) 28 Cal.4th 486, 529 [ 122 Cal.Rptr.2d 285 , 49 P.3d 1032 ]; People v. Barton (1995) 12 Cal.4th 186, 194-195 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ]; People v. Johnson (1993) 6 Cal.4th 1, 43-45 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ]; People v. Ainsworth (1988) 45 Cal.3d 984, 1026 [ 248 Cal.Rptr. 568 , 755 P.2d 1017 ] [citing test erroneously as conjunctive]; People v. Wickersham (1982) 32 Cal.3d 307, 3

11
People v. San Nicolasgreen
cal · 2004 · cited in 1 California opinions naming this issue, 2005–2005
2 sentences

2005(Cf. People v. San Nicolas (2004) 34 Cal.4th 614, 669 [ 21 Cal.Rptr.3d 612 , 101 P.3d 509 ]; People v. Maury (2003) 30 Cal.4th 342, 424 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ]; People v. Michaels (2002) 28 Cal.4th 486, 529 [ 122 Cal.Rptr.2d 285 , 49 P.3d 1032 ]; People v. Barton (1995) 12 Cal.4th 186, 194-195 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ]; People v. Johnson (1993) 6 Cal.4th 1, 43-45 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ]; People v. Ainsworth (1988) 45 Cal.3d 984, 1026 [ 248 Cal.Rptr. 568 , 755 P.2d 1017 ] [citing test erroneously as conjunctive]; People v. Wickersham (1982) 32 Cal.3d 307, 3

2005(Cf. People v. San Nicolas (2004) 34 Cal.4th 614, 669 [ 21 Cal.Rptr.3d 612 , 101 P.3d 509 ]; People v. Maury (2003) 30 Cal.4th 342, 424 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ]; People v. Michaels (2002) 28 Cal.4th 486, 529 [ 122 Cal.Rptr.2d 285 , 49 P.3d 1032 ]; People v. Barton (1995) 12 Cal.4th 186, 194-195 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ]; People v. Johnson (1993) 6 Cal.4th 1, 43-45 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ]; People v. Ainsworth (1988) 45 Cal.3d 984, 1026 [ 248 Cal.Rptr. 568 , 755 P.2d 1017 ] [citing test erroneously as conjunctive]; People v. Wickersham (1982) 32 Cal.3d 307, 3

11
People v. Panahgreen
cal · 2005 · cited in 1 California opinions naming this issue, 2005–2005
1 sentence

2005(Cf. People v. San Nicolas (2004) 34 Cal.4th 614, 669 [ 21 Cal.Rptr.3d 612 , 101 P.3d 509 ]; People v. Maury (2003) 30 Cal.4th 342, 424 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ]; People v. Michaels (2002) 28 Cal.4th 486, 529 [ 122 Cal.Rptr.2d 285 , 49 P.3d 1032 ]; People v. Barton (1995) 12 Cal.4th 186, 194-195 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ]; People v. Johnson (1993) 6 Cal.4th 1, 43-45 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ]; People v. Ainsworth (1988) 45 Cal.3d 984, 1026 [ 248 Cal.Rptr. 568 , 755 P.2d 1017 ] [citing test erroneously as conjunctive]; People v. Wickersham (1982) 32 Cal.3d 307, 3

11
People v. Bartongreen
cal · 1995 · cited in 1 California opinions naming this issue, 2005–2005
2 sentences

2005(Cf. People v. San Nicolas (2004) 34 Cal.4th 614, 669 [ 21 Cal.Rptr.3d 612 , 101 P.3d 509 ]; People v. Maury (2003) 30 Cal.4th 342, 424 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ]; People v. Michaels (2002) 28 Cal.4th 486, 529 [ 122 Cal.Rptr.2d 285 , 49 P.3d 1032 ]; People v. Barton (1995) 12 Cal.4th 186, 194-195 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ]; People v. Johnson (1993) 6 Cal.4th 1, 43-45 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ]; People v. Ainsworth (1988) 45 Cal.3d 984, 1026 [ 248 Cal.Rptr. 568 , 755 P.2d 1017 ] [citing test erroneously as conjunctive]; People v. Wickersham (1982) 32 Cal.3d 307, 3

2005(Cf. People v. San Nicolas (2004) 34 Cal.4th 614, 669 [ 21 Cal.Rptr.3d 612 , 101 P.3d 509 ]; People v. Maury (2003) 30 Cal.4th 342, 424 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ]; People v. Michaels (2002) 28 Cal.4th 486, 529 [ 122 Cal.Rptr.2d 285 , 49 P.3d 1032 ]; People v. Barton (1995) 12 Cal.4th 186, 194-195 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ]; People v. Johnson (1993) 6 Cal.4th 1, 43-45 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ]; People v. Ainsworth (1988) 45 Cal.3d 984, 1026 [ 248 Cal.Rptr. 568 , 755 P.2d 1017 ] [citing test erroneously as conjunctive]; People v. Wickersham (1982) 32 Cal.3d 307, 3

11
People v. Wickershamred
cal · 1982 · cited in 1 California opinions naming this issue, 2005–2005
2 sentences

2005(Cf. People v. San Nicolas (2004) 34 Cal.4th 614, 669 [ 21 Cal.Rptr.3d 612 , 101 P.3d 509 ]; People v. Maury (2003) 30 Cal.4th 342, 424 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ]; People v. Michaels (2002) 28 Cal.4th 486, 529 [ 122 Cal.Rptr.2d 285 , 49 P.3d 1032 ]; People v. Barton (1995) 12 Cal.4th 186, 194-195 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ]; People v. Johnson (1993) 6 Cal.4th 1, 43-45 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ]; People v. Ainsworth (1988) 45 Cal.3d 984, 1026 [ 248 Cal.Rptr. 568 , 755 P.2d 1017 ] [citing test erroneously as conjunctive]; People v. Wickersham (1982) 32 Cal.3d 307, 3

2005(Cf. People v. San Nicolas (2004) 34 Cal.4th 614, 669 [ 21 Cal.Rptr.3d 612 , 101 P.3d 509 ]; People v. Maury (2003) 30 Cal.4th 342, 424 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ]; People v. Michaels (2002) 28 Cal.4th 486, 529 [ 122 Cal.Rptr.2d 285 , 49 P.3d 1032 ]; People v. Barton (1995) 12 Cal.4th 186, 194-195 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ]; People v. Johnson (1993) 6 Cal.4th 1, 43-45 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ]; People v. Ainsworth (1988) 45 Cal.3d 984, 1026 [ 248 Cal.Rptr. 568 , 755 P.2d 1017 ] [citing test erroneously as conjunctive]; People v. Wickersham (1982) 32 Cal.3d 307, 3

11
People v. Mauryred
cal · 2003 · cited in 1 California opinions naming this issue, 2005–2005
2 sentences

2005(Cf. People v. San Nicolas (2004) 34 Cal.4th 614, 669 [ 21 Cal.Rptr.3d 612 , 101 P.3d 509 ]; People v. Maury (2003) 30 Cal.4th 342, 424 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ]; People v. Michaels (2002) 28 Cal.4th 486, 529 [ 122 Cal.Rptr.2d 285 , 49 P.3d 1032 ]; People v. Barton (1995) 12 Cal.4th 186, 194-195 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ]; People v. Johnson (1993) 6 Cal.4th 1, 43-45 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ]; People v. Ainsworth (1988) 45 Cal.3d 984, 1026 [ 248 Cal.Rptr. 568 , 755 P.2d 1017 ] [citing test erroneously as conjunctive]; People v. Wickersham (1982) 32 Cal.3d 307, 3

2005(Cf. People v. San Nicolas (2004) 34 Cal.4th 614, 669 [ 21 Cal.Rptr.3d 612 , 101 P.3d 509 ]; People v. Maury (2003) 30 Cal.4th 342, 424 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ]; People v. Michaels (2002) 28 Cal.4th 486, 529 [ 122 Cal.Rptr.2d 285 , 49 P.3d 1032 ]; People v. Barton (1995) 12 Cal.4th 186, 194-195 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ]; People v. Johnson (1993) 6 Cal.4th 1, 43-45 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ]; People v. Ainsworth (1988) 45 Cal.3d 984, 1026 [ 248 Cal.Rptr. 568 , 755 P.2d 1017 ] [citing test erroneously as conjunctive]; People v. Wickersham (1982) 32 Cal.3d 307, 3

11
People v. Ainsworthgreen
cal · 1988 · cited in 1 California opinions naming this issue, 2005–2005
2 sentences

2005(Cf. People v. San Nicolas (2004) 34 Cal.4th 614, 669 [ 21 Cal.Rptr.3d 612 , 101 P.3d 509 ]; People v. Maury (2003) 30 Cal.4th 342, 424 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ]; People v. Michaels (2002) 28 Cal.4th 486, 529 [ 122 Cal.Rptr.2d 285 , 49 P.3d 1032 ]; People v. Barton (1995) 12 Cal.4th 186, 194-195 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ]; People v. Johnson (1993) 6 Cal.4th 1, 43-45 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ]; People v. Ainsworth (1988) 45 Cal.3d 984, 1026 [ 248 Cal.Rptr. 568 , 755 P.2d 1017 ] [citing test erroneously as conjunctive]; People v. Wickersham (1982) 32 Cal.3d 307, 3

2005(Cf. People v. San Nicolas (2004) 34 Cal.4th 614, 669 [ 21 Cal.Rptr.3d 612 , 101 P.3d 509 ]; People v. Maury (2003) 30 Cal.4th 342, 424 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ]; People v. Michaels (2002) 28 Cal.4th 486, 529 [ 122 Cal.Rptr.2d 285 , 49 P.3d 1032 ]; People v. Barton (1995) 12 Cal.4th 186, 194-195 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ]; People v. Johnson (1993) 6 Cal.4th 1, 43-45 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ]; People v. Ainsworth (1988) 45 Cal.3d 984, 1026 [ 248 Cal.Rptr. 568 , 755 P.2d 1017 ] [citing test erroneously as conjunctive]; People v. Wickersham (1982) 32 Cal.3d 307, 3

11
People v. Johnsonred
cal · 1993 · cited in 1 California opinions naming this issue, 2005–2005
2 sentences

2005(Cf. People v. San Nicolas (2004) 34 Cal.4th 614, 669 [ 21 Cal.Rptr.3d 612 , 101 P.3d 509 ]; People v. Maury (2003) 30 Cal.4th 342, 424 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ]; People v. Michaels (2002) 28 Cal.4th 486, 529 [ 122 Cal.Rptr.2d 285 , 49 P.3d 1032 ]; People v. Barton (1995) 12 Cal.4th 186, 194-195 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ]; People v. Johnson (1993) 6 Cal.4th 1, 43-45 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ]; People v. Ainsworth (1988) 45 Cal.3d 984, 1026 [ 248 Cal.Rptr. 568 , 755 P.2d 1017 ] [citing test erroneously as conjunctive]; People v. Wickersham (1982) 32 Cal.3d 307, 3

2005(Cf. People v. San Nicolas (2004) 34 Cal.4th 614, 669 [ 21 Cal.Rptr.3d 612 , 101 P.3d 509 ]; People v. Maury (2003) 30 Cal.4th 342, 424 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ]; People v. Michaels (2002) 28 Cal.4th 486, 529 [ 122 Cal.Rptr.2d 285 , 49 P.3d 1032 ]; People v. Barton (1995) 12 Cal.4th 186, 194-195 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ]; People v. Johnson (1993) 6 Cal.4th 1, 43-45 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ]; People v. Ainsworth (1988) 45 Cal.3d 984, 1026 [ 248 Cal.Rptr. 568 , 755 P.2d 1017 ] [citing test erroneously as conjunctive]; People v. Wickersham (1982) 32 Cal.3d 307, 3

11
People v. Brevermanred
cal · 1998 · cited in 1 California opinions naming this issue, 2005–2005
2 sentences

2005He cites the disjunctive test set out in Sedeno, supra, 10 Cal.3d 703 (disapproved on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 149 , & 178, fn. 26 [ 77 Cal.Rptr.2d 870 , 960 P.2d 1094 ]), which we have mentioned: “[T]he duty to give instructions ... on particular defenses and their relevance to the charged offense arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.” (Sedeno, supra, 10 Cal.3d at p. 716 , italics a

2005He cites the disjunctive test set out in Sedeno, supra, 10 Cal.3d 703 (disapproved on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 149 , & 178, fn. 26 [ 77 Cal.Rptr.2d 870 , 960 P.2d 1094 ]), which we have mentioned: “[T]he duty to give instructions ... on particular defenses and their relevance to the charged offense arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.” (Sedeno, supra, 10 Cal.3d at p. 716 , italics a

11
People v. Flannelyellow
cal · 1979 · cited in 1 California opinions naming this issue, 2005–2005
1 sentence

2005(Cf. People v. San Nicolas (2004) 34 Cal.4th 614, 669 [ 21 Cal.Rptr.3d 612 , 101 P.3d 509 ]; People v. Maury (2003) 30 Cal.4th 342, 424 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ]; People v. Michaels (2002) 28 Cal.4th 486, 529 [ 122 Cal.Rptr.2d 285 , 49 P.3d 1032 ]; People v. Barton (1995) 12 Cal.4th 186, 194-195 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ]; People v. Johnson (1993) 6 Cal.4th 1, 43-45 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ]; People v. Ainsworth (1988) 45 Cal.3d 984, 1026 [ 248 Cal.Rptr. 568 , 755 P.2d 1017 ] [citing test erroneously as conjunctive]; People v. Wickersham (1982) 32 Cal.3d 307, 3

11
People v. Floodgreen
cal · 1998 · cited in 1 California opinions naming this issue, 2005–2005
2 sentences

2005(Cf. People v. San Nicolas (2004) 34 Cal.4th 614, 669 [ 21 Cal.Rptr.3d 612 , 101 P.3d 509 ]; People v. Maury (2003) 30 Cal.4th 342, 424 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ]; People v. Michaels (2002) 28 Cal.4th 486, 529 [ 122 Cal.Rptr.2d 285 , 49 P.3d 1032 ]; People v. Barton (1995) 12 Cal.4th 186, 194-195 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ]; People v. Johnson (1993) 6 Cal.4th 1, 43-45 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ]; People v. Ainsworth (1988) 45 Cal.3d 984, 1026 [ 248 Cal.Rptr. 568 , 755 P.2d 1017 ] [citing test erroneously as conjunctive]; People v. Wickersham (1982) 32 Cal.3d 307, 3

2005(Cf. People v. San Nicolas (2004) 34 Cal.4th 614, 669 [ 21 Cal.Rptr.3d 612 , 101 P.3d 509 ]; People v. Maury (2003) 30 Cal.4th 342, 424 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ]; People v. Michaels (2002) 28 Cal.4th 486, 529 [ 122 Cal.Rptr.2d 285 , 49 P.3d 1032 ]; People v. Barton (1995) 12 Cal.4th 186, 194-195 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ]; People v. Johnson (1993) 6 Cal.4th 1, 43-45 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ]; People v. Ainsworth (1988) 45 Cal.3d 984, 1026 [ 248 Cal.Rptr. 568 , 755 P.2d 1017 ] [citing test erroneously as conjunctive]; People v. Wickersham (1982) 32 Cal.3d 307, 3

11
Weisman v. Bowergreen
calctapp · 1987 · cited in 1 California opinions naming this issue, 2004–2004
2 sentences

2004Gray Co. v. Gray, supra, 163 Cal.App.3d at page 1034 , which authorized sanctions under section 128.5 upon a showing that the action was objectively frivolous or “not based on good faith” (see, e.g., Winick Corp. v. County Sanitation District No. 2 (1986) 185 Cal.App.3d 1170, 1177 [ 230 Cal.Rptr. 289 ]; Weisman v. Bower (1987) 193 Cal.App.3d 1231, 1236 [ 238 Cal.Rptr. 756 ]; Finnie v. Town of Tiburon *923 (1988) 199 Cal.App.3d 1, 12 [ 244 Cal.Rptr. 581 ]), held a “motion is frivolous and in bad faith where . . . any reasonable attorney would agree such motion is totally devoid of merit.” (Karw

2004Gray Co. v. Gray, supra, 163 Cal.App.3d at page 1034 , which authorized sanctions under section 128.5 upon a showing that the action was objectively frivolous or “not based on good faith” (see, e.g., Winick Corp. v. County Sanitation District No. 2 (1986) 185 Cal.App.3d 1170, 1177 [ 230 Cal.Rptr. 289 ]; Weisman v. Bower (1987) 193 Cal.App.3d 1231, 1236 [ 238 Cal.Rptr. 756 ]; Finnie v. Town of Tiburon *923 (1988) 199 Cal.App.3d 1, 12 [ 244 Cal.Rptr. 581 ]), held a “motion is frivolous and in bad faith where . . . any reasonable attorney would agree such motion is totally devoid of merit.” (Karw

11
Winick Corp. v. County Sanitation District No. 2green
calctapp · 1986 · cited in 1 California opinions naming this issue, 2004–2004
2 sentences

2004Gray Co. v. Gray, supra, 163 Cal.App.3d at page 1034 , which authorized sanctions under section 128.5 upon a showing that the action was objectively frivolous or “not based on good faith” (see, e.g., Winick Corp. v. County Sanitation District No. 2 (1986) 185 Cal.App.3d 1170, 1177 [ 230 Cal.Rptr. 289 ]; Weisman v. Bower (1987) 193 Cal.App.3d 1231, 1236 [ 238 Cal.Rptr. 756 ]; Finnie v. Town of Tiburon *923 (1988) 199 Cal.App.3d 1, 12 [ 244 Cal.Rptr. 581 ]), held a “motion is frivolous and in bad faith where . . . any reasonable attorney would agree such motion is totally devoid of merit.” (Karw

2004Gray Co. v. Gray, supra, 163 Cal.App.3d at page 1034 , which authorized sanctions under section 128.5 upon a showing that the action was objectively frivolous or “not based on good faith” (see, e.g., Winick Corp. v. County Sanitation District No. 2 (1986) 185 Cal.App.3d 1170, 1177 [ 230 Cal.Rptr. 289 ]; Weisman v. Bower (1987) 193 Cal.App.3d 1231, 1236 [ 238 Cal.Rptr. 756 ]; Finnie v. Town of Tiburon *923 (1988) 199 Cal.App.3d 1, 12 [ 244 Cal.Rptr. 581 ]), held a “motion is frivolous and in bad faith where . . . any reasonable attorney would agree such motion is totally devoid of merit.” (Karw

11
Finnie v. Town of Tiburongreen
calctapp · 1988 · cited in 1 California opinions naming this issue, 2004–2004
2 sentences

2004Gray Co. v. Gray, supra, 163 Cal.App.3d at page 1034 , which authorized sanctions under section 128.5 upon a showing that the action was objectively frivolous or “not based on good faith” (see, e.g., Winick Corp. v. County Sanitation District No. 2 (1986) 185 Cal.App.3d 1170, 1177 [ 230 Cal.Rptr. 289 ]; Weisman v. Bower (1987) 193 Cal.App.3d 1231, 1236 [ 238 Cal.Rptr. 756 ]; Finnie v. Town of Tiburon *923 (1988) 199 Cal.App.3d 1, 12 [ 244 Cal.Rptr. 581 ]), held a “motion is frivolous and in bad faith where . . . any reasonable attorney would agree such motion is totally devoid of merit.” (Karw

2004Gray Co. v. Gray, supra, 163 Cal.App.3d at page 1034 , which authorized sanctions under section 128.5 upon a showing that the action was objectively frivolous or “not based on good faith” (see, e.g., Winick Corp. v. County Sanitation District No. 2 (1986) 185 Cal.App.3d 1170, 1177 [ 230 Cal.Rptr. 289 ]; Weisman v. Bower (1987) 193 Cal.App.3d 1231, 1236 [ 238 Cal.Rptr. 756 ]; Finnie v. Town of Tiburon *923 (1988) 199 Cal.App.3d 1, 12 [ 244 Cal.Rptr. 581 ]), held a “motion is frivolous and in bad faith where . . . any reasonable attorney would agree such motion is totally devoid of merit.” (Karw

11
People v. Lentred
cal · 1975 · cited in 1 California opinions naming this issue, 1990–1990
2 sentences

1990Before determining whether the condition is valid, however, we feel compelled to point out that the disjunctive test for determining the validity of the condition as stated in Bushman and Mason was specifically overruled in People v. Lent (1975) 15 Cal.3d 481, 486 [ 124 Cal.Rptr. 905 , 541 P.2d 545 ], As noted by the court in Lent , a probation condition will only be invalidated if (1) it has no relationship to the crime of which defendant was convicted; (2) relates to conduct which in itself is not criminal; and (3) *712 requires or forbids conduct which is not reasonably related to future cr

1990Before determining whether the condition is valid, however, we feel compelled to point out that the disjunctive test for determining the validity of the condition as stated in Bushman and Mason was specifically overruled in People v. Lent (1975) 15 Cal.3d 481, 486 [ 124 Cal.Rptr. 905 , 541 P.2d 545 ], As noted by the court in Lent , a probation condition will only be invalidated if (1) it has no relationship to the crime of which defendant was convicted; (2) relates to conduct which in itself is not criminal; and (3) *712 requires or forbids conduct which is not reasonably related to future cr

11

Distinguished, questioned or overruled (0)

CaseNegativeCited
No negative-treatment citations attached to this issue in California. Read the followed side critically anyway.

Also cited on this issue (20)

CaseCitedYears
Lisa M. v. Henry Mayo Newhall Memorial Hospital green
cal · 1995
1 sentence

2026(Farmers, supra, 11 Cal.4th at p. 1004 .) Stated differently, the employment “must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought.” (Lisa M., supra, 12 Cal.4th at p. 299 .) Under the two-prong disjunctive test adopted in Bailey, an employee acts within the scope of employment if the conduct either (1) is required by or incidental to the employee’s duties, or (2) it is reasonably foreseeable in light of the employer’s business.

12026–2026
Montague v. Amn Healthcare, Inc. green
calctapp · 2014
1 sentence

2019(Id. at p. 298.) The required connection has been described as (1) “the incident leading to injury must be an ‘outgrowth’ of the employment”; (2) the risk of tortious injury is ‘“‘inherent in the working environment’”‘; (3) the risk of tortious injury is ‘“‘typical of or broadly incidental to the enterprise [the employer] has undertaken”‘“ or (4) ”the tort was, in a general way, foreseeable from the employee’s duties.” (Id. at pp. 298-299.) “These various terms have been condensed into a two-prong disjunctive test. [Citation.] The conduct of an employee falls within the scope of his or her 23

12019–2019
Kennedy v. Superior Court green
calctapp · 2006
1 sentence

2015“Generally, the reason a trial court gives for its ruling is irrelevant on appeal because ‘we review the trial court’s actual ruling, not its reasons,’ and ‘[a] judgment or order correct in theory will be affirmed, even where the trial court’s given reasoning is erroneous.’ [Citation.]” (Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 368 .) Thus, we consider whether defendant presented evidence of either substantial changed circumstances or new evidence that cast a serious doubt on the validity of the previous finding of competence.

12015–2015
Griffin v. United States green
scotus · 1991
2 sentences

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 i

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 i

12008–2008
Neder v. United States green
scotus · 1999
2 sentences

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 i

12008–2008
Chapman v. California yellow
scotus · 1967
2 sentences

2008Neder argued that an instructional error could be harmless in only three situations—(1) the defendant is acquitted of the offense on which the jury was improperly instructed, (2) the defendant admitted the element on which the jury was improperly instructed, or (3) other facts necessarily found by the jury are the functional equivalent of the omitted, misdescribed, or presumed element—but the high court flatly rejected this construct. ( Neder, supra, 527 U.S. at pp. 13-15.) The proper test, as the court explained, "is whether it appears `beyond a reasonable doubt that the error complained of d

2008Neder argued that an instructional error could be harmless in only three situations—(1) the defendant is acquitted of the offense on which the jury was improperly instructed, (2) the defendant admitted the element on which the jury was improperly instructed, or (3) other facts necessarily found by the jury are the functional equivalent of the omitted, misdescribed, or presumed element—but the high court flatly rejected this construct. ( Neder, supra, 527 U.S. at pp. 13-15.) The proper test, as the court explained, “is whether it appears ‘beyond a reasonable doubt that the error complained of d

12008–2008
Mark E. Quigley v. George Vose, Superintendent of McI green
ca1 · 1987
2 sentences

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 i

12008–2008
People v. Sedeno red
cal · 1974
2 sentences

2005In People v. Sedeno (1974) 10 Cal.3d 703 [ 112 Cal.Rptr. 1 , 518 P.2d 913 ] (Sedeno), our Supreme Court said, “[T]he duty to give instructions ... on particular defenses and their relevance to the charged offense arises only if it appears that a defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.” (Id. at p. 716, italics added.) The first prong of this disjunctive test suggests that a defendant is entitled to an instruction on a defense on which defendant is “relyin

2005In People v. Sedeno (1974) 10 Cal.3d 703 [ 112 Cal.Rptr. 1 , 518 P.2d 913 ] (Sedeno), our Supreme Court said, “[T]he duty to give instructions ... on particular defenses and their relevance to the charged offense arises only if it appears that a defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.” (Id. at p. 716, italics added.) The first prong of this disjunctive test suggests that a defendant is entitled to an instruction on a defense on which defendant is “relyin

12005–2005
M. E. Gray Co. v. Gray green
calctapp · 1985
1 sentence

2004Gray Co. v. Gray, supra, 163 Cal.App.3d at page 1034 , which authorized sanctions under section 128.5 upon a showing that the action was objectively frivolous or “not based on good faith” (see, e.g., Winick Corp. v. County Sanitation District No. 2 (1986) 185 Cal.App.3d 1170, 1177 [ 230 Cal.Rptr. 289 ]; Weisman v. Bower (1987) 193 Cal.App.3d 1231, 1236 [ 238 Cal.Rptr. 756 ]; Finnie v. Town of Tiburon *923 (1988) 199 Cal.App.3d 1, 12 [ 244 Cal.Rptr. 581 ]), held a “motion is frivolous and in bad faith where . . . any reasonable attorney would agree such motion is totally devoid of merit.” (Karw

12004–2004
People v. Franco neutral
calctapp · 1986
1 sentence

1986Since no other conclusion was possible upon the record before the trial court, the inadvertent use of the conjunctive rather than the disjunctive test by the trial court is not reversible error.” ( 177 Cal.App.3d at p. 428 .) *19 This case does not permit a finding of harmless error, as in Franco ; nor does it compel a reversal with directions to enter a judgment of not guilty by reason of insanity, as in Skinner .

11986–1986
In Re TMR green
calctapp · 1974
11978–1978
Ruiz v. Industrial Accident Commission green
cal · 1955
11976–1976
Ex parte McCarthy green
cal · 1887
11929–1929
People v. Harrold green
cal · 1890
11929–1929
People v. Gosset green
cal · 1892
11929–1929
People v. Thompson green
cal · 1896
11929–1929
People v. Gusti neutral
cal · 1896
11929–1929
People v. Barnnovich green
calctapp · 1911
11929–1929
People v. Kuder green
calctapp · 1928
11929–1929
State v. Nelson green
me · 1849
11896–1896

Where else courts name it

NC 34 (1986–2025) MO 28 (1980–2024) IL 18 (1973–2026) CA 15 (1896–2026) OH 13 (1994–2025) PA 7 (1983–2025) TX 7 (2001–2011) MA 6 (1994–2024) WI 4 (1981–2000) MD 4 (1993–2015) IN 4 (2011–2025) WA 4 (2015–2015) AK 3 (2009–2013) NH 3 (1981–2008) NJ 3 (1992–2001) VA 3 (1983–2017) DC 3 (1991–2005) NY 2 (1979–2002) AZ 2 (2018–2025) NE 2 (1994–2020) OR 2 (2005–2012) MN 2 (1986–1986) FL 2 (2000–2006) CT 2 (2016–2024) AR 2 (2016–2019)

Opinions by the citing court's state. A doctrine retained in one state and abandoned in another shows up here as a year span that stalls.

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