position claim in California

2023(Ibid.) The appellate court, in reversing the judgment of dismissal, stated that the trial court had acted “hastily and unreasonably” and cited to section 581, subdivision (f)(3), which states that a court may dismiss the complaint as to a defendant “ ‘[a]fter a motion to strike the whole of a complaint is granted without leave to amend and either party moves for dismissal.’ ” The Vaccaro court noted that “defendants had not requested dismissal in the motion to 4 “It is only by the entry of the judgment that plaintiff is in a position to test the correctness of the court’s ruling since there i

1983Co. (1972) 26 Cal.App.3d 454, 456, fn. 1 [ 102 Cal.Rptr. 651 ].) “It is only by the entry of the judgment that plaintiff is in a position to test the correctness of the court’s ruling since there is no appeal from a ruling on a demurrer but only from the ensuing judgment.” (Berri v. Superior Court (1955) 43 Cal.2d 856, 860 [ 279 P.2d 8 ].) Accordingly, the trial court’s rulings herein cannot be affirmed upon the grounds of res judicata or collateral estoppel. *757 Dismissal of the Federation as a Defendant Was Improper SEIU contends that the trial court erred in dismissing the Federation as a

1992Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” On the other hand, the high court apparently also has accepted the position that the standard of review is essentially the same under both sections 21168 and 21168.5, i.e., “whether substantial evidence supports the agency’s determination.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392, fn. 5 [ 253 Cal.Rptr. 426 , 764 P.2d 278 ].) The views expressed in Friends of "5" St

1992Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” On the other hand, the high court apparently also has accepted the position that the standard of review is essentially the same under both sections 21168 and 21168.5, i.e., “whether substantial evidence supports the agency’s determination.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392, fn. 5 [ 253 Cal.Rptr. 426 , 764 P.2d 278 ].) The views expressed in Friends of "5" St

1970(E.g., Estate of Baker (1915) 170 Cal. 578, 582-583 [ 150 P. 989 ]; cf. Estate of La Motta (1970) 7 Cal.App.3d 960, 966-967 [ 86 Cal.Rptr. 880 ],) 2 Under the circumstances the September 16 order is res judicata.

1970(E.g., Estate of Baker (1915) 170 Cal. 578, 582-583 [ 150 P. 989 ]; cf. Estate of La Motta (1970) 7 Cal.App.3d 960, 966-967 [ 86 Cal.Rptr. 880 ],) 2 Under the circumstances the September 16 order is res judicata.

1970(E.g., Estate of Baker (1915) 170 Cal. 578, 582-583 [ 150 P. 989 ]; cf. Estate of La Motta (1970) 7 Cal.App.3d 960, 966-967 [ 86 Cal.Rptr. 880 ],) 2 Under the circumstances the September 16 order is res judicata.

1970(E.g., Estate of Baker (1915) 170 Cal. 578, 582-583 [ 150 P. 989 ]; cf. Estate of La Motta (1970) 7 Cal.App.3d 960, 966-967 [ 86 Cal.Rptr. 880 ],) 2 Under the circumstances the September 16 order is res judicata.

1967(Hazelett v. Miller, 115 Cal.App.2d 801, 804-805 [252 P.2d 997]; Fuentes v. Panella, 120 Cal.App.2d 175, 182 [ 260 P.2d 853 ] ; Kyle v. Stone, 234 Cal.App.2d 286, 289-290 [ 44 Cal.Rptr. 390 ].) Without citing authority, plaintiff asserts the court erred in refusing an instruction on res ipsa loquitur.

1967(Hazelett v. Miller, 115 Cal.App.2d 801, 804-805 [252 P.2d 997]; Fuentes v. Panella, 120 Cal.App.2d 175, 182 [ 260 P.2d 853 ] ; Kyle v. Stone, 234 Cal.App.2d 286, 289-290 [ 44 Cal.Rptr. 390 ].) Without citing authority, plaintiff asserts the court erred in refusing an instruction on res ipsa loquitur.

1967(Hazelett v. Miller, 115 Cal.App.2d 801, 804-805 [252 P.2d 997]; Fuentes v. Panella, 120 Cal.App.2d 175, 182 [ 260 P.2d 853 ] ; Kyle v. Stone, 234 Cal.App.2d 286, 289-290 [ 44 Cal.Rptr. 390 ].) Without citing authority, plaintiff asserts the court erred in refusing an instruction on res ipsa loquitur.

1967(Hazelett v. Miller, 115 Cal.App.2d 801, 804-805 [252 P.2d 997]; Fuentes v. Panella, 120 Cal.App.2d 175, 182 [ 260 P.2d 853 ] ; Kyle v. Stone, 234 Cal.App.2d 286, 289-290 [ 44 Cal.Rptr. 390 ].) Without citing authority, plaintiff asserts the court erred in refusing an instruction on res ipsa loquitur.

1967(Hazelett v. Miller, 115 Cal.App.2d 801, 804-805 [252 P.2d 997]; Fuentes v. Panella, 120 Cal.App.2d 175, 182 [ 260 P.2d 853 ] ; Kyle v. Stone, 234 Cal.App.2d 286, 289-290 [ 44 Cal.Rptr. 390 ].) Without citing authority, plaintiff asserts the court erred in refusing an instruction on res ipsa loquitur.

1967(Hazelett v. Miller, 115 Cal.App.2d 801, 804-805 [252 P.2d 997]; Fuentes v. Panella, 120 Cal.App.2d 175, 182 [ 260 P.2d 853 ] ; Kyle v. Stone, 234 Cal.App.2d 286, 289-290 [ 44 Cal.Rptr. 390 ].) Without citing authority, plaintiff asserts the court erred in refusing an instruction on res ipsa loquitur.

1963(Michaels v. Mulholland, 115 Cal.App.2d 563, 564 [ 252 P.2d 757 ].) Where a demurrer has been sustained without leave to amend, or the time given to amend has expired, the matter has reached such a stage that a final determination of the action is contemplated....” The court pointed out that at any time before the judgment of dismissal pursuant to the order sustaining the demurrer is filed, “the trial court may change its ruling on the demurrer. ...” (P. 861.) The reviewing court then ordered the writ to issue “directing the trial court to enter a judgment of dismissal or overrule the demurrer

1963(Michaels v. Mulholland, 115 Cal.App.2d 563, 564 [ 252 P.2d 757 ].) Where a demurrer has been sustained without leave to amend, or the time given to amend has expired, the matter has reached such a stage that a final determination of the action is contemplated....” The court pointed out that at any time before the judgment of dismissal pursuant to the order sustaining the demurrer is filed, “the trial court may change its ruling on the demurrer. ...” (P. 861.) The reviewing court then ordered the writ to issue “directing the trial court to enter a judgment of dismissal or overrule the demurrer

2023“An issue is actually litigated ‘[w]hen [it] is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined . . . . [Citation.]” (People v. Sims (1982) 32 Cal.3d 468, 484 (Sims); accord, Rest.2d Judgments, § 27, com. d.) By contrast, “[a]n issue is not actually litigated if the defendant might have interposed it as an affirmative defense but failed to do so; nor is it actually litigated if it is raised by a material allegation of a party's pleading but is admitted (explicitly or by virtue of a failure to deny) in a responsive pleading; nor is it actual

1988Underlying the majority’s application of collateral estoppel is its conclusion People v. Sims (1982) 32 Cal.3d 468 [ 186 Cal.Rptr. 77 , 651 P.2d 321 ], mandates the use of the doctrine where the administrative agency involved has “acted in a judicial capacity.” The court in Sims , however, effectively qualified this conclusion by also observing the statutory scheme involved there governing prosecutions for aid to families with dependent children (AFDC) fraud and the circumstances of individuals who receive welfare benefits made application of collateral estoppel particularly appropriate.

1999When read in conjunction with the companion case of Mahoney v. City of San Diego [(1926)] 198 Cal. 388 , 391 . . . , the case of Luce v. City of San Diego, 198 Cal. 405, 406 , 407 . . . , is authority for the proposition that when the asserted error complained of is an error of assessment, as here, resort must first be had to the board of equalization and in the absence of objection there the taxpayer is precluded from obtaining a refund, and this even though, as here, the alleged error was the result of an asserted uniformly excessive assessment upon all property of the same class.” (Id. at p

1940When read in conjunction with the companion case of Mahoney v. City of San Diego, 198 Cal. 388, 391 [ 245 Pac. 189 ], the ease of Luce v. City of San Diego, 198 Cal. 405, 406, 407 [ 245 Pac. 196 ], is authority for the proposition that when the asserted error complained of is an error of assessment, as here, resort must first be had to the board of equalization and in the absence of objection there the taxpayer is precluded from obtaining a refund, and this even though, as here, the alleged error was the result of an asserted uniformly excessive assessment upon all property of the same class.

1999When read in conjunction with the companion case of Mahoney v. City of San Diego [(1926)] 198 Cal. 388 , 391 . . . , the case of Luce v. City of San Diego, 198 Cal. 405, 406 , 407 . . . , is authority for the proposition that when the asserted error complained of is an error of assessment, as here, resort must first be had to the board of equalization and in the absence of objection there the taxpayer is precluded from obtaining a refund, and this even though, as here, the alleged error was the result of an asserted uniformly excessive assessment upon all property of the same class.” (Id. at p

1940When read in conjunction with the companion case of Mahoney v. City of San Diego, 198 Cal. 388, 391 [ 245 Pac. 189 ], the ease of Luce v. City of San Diego, 198 Cal. 405, 406, 407 [ 245 Pac. 196 ], is authority for the proposition that when the asserted error complained of is an error of assessment, as here, resort must first be had to the board of equalization and in the absence of objection there the taxpayer is precluded from obtaining a refund, and this even though, as here, the alleged error was the result of an asserted uniformly excessive assessment upon all property of the same class.

1948This court in holding otherwise said, “The trial court was undoubtedly satisfied, as we are, that the words in that collocation were used to refer to and qualify price, and not to indicate the point of delivery or where title was to pass.” In Pond Creek etc. Co. v. Clark, 270 F. 482, 486 (followed in Boston Iron & Metal Co. v. Rosenthal) the court said: “It is quite generally accepted as the law that where in a contract the price of goods is fixed, and in connection with the price is employed the term ‘f. o. b.’ at a given point, it means that this refers to and qualifies only the price, and d

1945In Pond Creek etc. Co. *569 v. Clark, 270 F. 482, 486 , supra, the rule was thus stated: “It is quite generally accepted as the law that where in a contract the price of goods is fixed, and in connection with the price is employed the term ‘f. o. b.’ at a given point, it means that this refers to and qualifies only the price, and does not indicate that the seller is actually to deliver the goods at the indicated point, and it is construed to have no reference to delivery, but that wheresoever the goods may be shipped the seller will either pay freight to the indicated point, or, if the goods a

2025(Lewis, at p. 1097; Morrissey v. Brewer, supra, 408 U.S. at p. 481 [“due process is flexible and calls for such procedural protections as the particular situation demands”].) Wayfer asserts — without support — that “vesting the trial court with unbridled discretion” to allow cross-examination increases the risk of an 5 erroneous deprivation.

2024Such an error is not minor or inconsequential. “[I]f a defendant does not understand both questions and answers, he is denied the ability to ‘spontaneously understand’ the testimony.” (In re Dung T. (1984) 160 Cal.App.3d 697, 708 .) The California Supreme Court in Aguilar noted the importance of having two interpreters: One to interpret a non-English-speaking witness’s testimony into English for the record and the second to translate the English translation back into the defendant’s language in order “to check the accuracy or competency of the witness interpreter’s translation.” (Aguilar, supr

2022(People v. Sherrick (1993) 19 Cal.App.4th 657, 659 [general waiver of appellate rights does not include errors occurring after entry of waiver].) He also argues that we may correct this aspect of his sentence on review because it was unauthorized, and the court lacked fundamental jurisdiction to impose the sentence.

2022(See People v. Marsh (1962) 58 Cal.2d 732, 736 (Marsh) [“It is elementary that if the prosecution can introduce evidence of a required specific intent, the defendant must be given the equal privilege of showing the lack of such intent.”].) Third, the trial court erred when it adopted the prosecution’s position that the defense evidence of Tony’s so-called “prior bad acts” was character evidence offered to show Tony’s propensity for violence, and that to be admissible for this purpose, the defense would first have to establish a prima facie case of a “ ‘self-defense-type theory.’ ” This ruling

2020(See People v. Badgett (1995) 10 Cal.4th 330, 343 (Badgett) [it is settled that a defendant cannot “object to a violation of another’s Fifth Amendment privilege against self- incrimination”].) The People note that we have recognized a defendant may seek to exclude a third party’s testimony on the ground “that the trial testimony is coerced [citation], and that its admission will deprive [the defendant] of a fair trial.” (Badgett, supra, 10 Cal.4th at p. 344 .) “[T]he primary purpose of excluding coerced testimony of third parties is to assure the reliability of the trial proceedings . . . .” (

2020(See People v. Badgett (1995) 10 Cal.4th 330, 343 (Badgett) [it is settled that a defendant cannot “object to a violation of another’s Fifth Amendment privilege against self- incrimination”].) The People note that we have recognized a defendant may seek to exclude a third party’s testimony on the ground “that the trial testimony is coerced [citation], and that its admission will deprive [the defendant] of a fair trial.” (Badgett, supra, 10 Cal.4th at p. 344 .) “[T]he primary purpose of excluding coerced testimony of third parties is to assure the reliability of the trial proceedings . . . .” (

2020(See People v. Badgett (1995) 10 Cal.4th 330, 343 (Badgett) [it is settled that a defendant cannot “object to a violation of another’s Fifth Amendment privilege against self- incrimination”].) The People note that we have recognized a defendant may seek to exclude a third party’s testimony on the ground “that the trial testimony is coerced [citation], and that its admission will deprive [the defendant] of a fair trial.” (Badgett, supra, 10 Cal.4th at p. 344 .) “[T]he primary purpose of excluding coerced testimony of third parties is to assure the reliability of the trial proceedings . . . .” (

2017Citing People v. Braxton (2004) 34 Cal.4th 798, 818-819 [ 22 Cal.Rptr.3d 46 , 101 P.3d 994 ], Martinez contends this court has the authority under Penal Code section 1260 to remand the matter to the trial court to decide the new trial motion and the failure to do so ‘“would be tantamount to a federal due process violation under the Fourteenth Amendment.” (Some capitalization omitted.) He acknowledges the sentencing court is not in a position to rule on a motion for new trial as a 13th juror, and asks the matter be remanded to the trial court.

2017Citing People v. Braxton (2004) 34 Cal.4th 798, 818-819 [ 22 Cal.Rptr.3d 46 , 101 P.3d 994 ], Martinez contends this court has the authority under Penal Code section 1260 to remand the matter to the trial court to decide the new trial motion and the failure to do so ‘“would be tantamount to a federal due process violation under the Fourteenth Amendment.” (Some capitalization omitted.) He acknowledges the sentencing court is not in a position to rule on a motion for new trial as a 13th juror, and asks the matter be remanded to the trial court.