way factors in California

2023I write briefly to say that, had there been an objection under People v. Kelly (1976) 17 Cal.3d 24—there was not—that was the appropriate way to challenge the admissibility of Dr. Egilman’s fibrous talc opinion, not a Sargon objection.

2022I write briefly to say that, had there been an objection under People v. Kelly (1976) 17 Cal.3d 24—there was not—that was the appropriate way to challenge the admissibility of Dr. Egilman’s fibrous talc opinion, not a Sargon objection.

2017In every instance in which the Court has found impossibility preemption, the 'direct conflict' between federal- and state-law duties could easily have been avoided if the regulated actor had simply ceased acting." ( Ibid. ) "Given the impossibility of redesigning sulindac, the only way for [the manufacturer] to ameliorate the drug's 'risk-utility' profile-and thus to escape liability-was to strengthen 'the presence and efficacy of [sulindac's] *152 warning' in such a way that the warning 'avoid[ed] an unreasonable risk of harm from hidden dangers or from foreseeable uses.' [Citations.]" ( *162

2017In every instance in which the Court has found impossibility preemption, the 'direct conflict' between federal- and state-law duties could easily have been avoided if the regulated actor had simply ceased acting." ( Ibid. ) "Given the impossibility of redesigning sulindac, the only way for [the manufacturer] to ameliorate the drug's 'risk-utility' profile-and thus to escape liability-was to strengthen 'the presence and efficacy of [sulindac's] *152 warning' in such a way that the warning 'avoid[ed] an unreasonable risk of harm from hidden dangers or from foreseeable uses.' [Citations.]" ( *162

2017And if they were successful, then of course acceptance of responsibility is not an issue because they would have been found not guilty. [¶] On the other hand, as I've explained to counsel, if they were not successful and the trial did not go the way the defense would like it to go, then their exposure is considerable, and that is made-if not worse, there's certainly no benefit for acceptance of responsibility if this comes after a trial." A proper indicated sentence does not occur where "the court extended leniency to defendant because of his plea." ( Clancey , supra , 56 Cal.4th at p. 578 , 1

2017And if they were successful, then of course acceptance of responsibility is not an issue because they would have been found not guilty. [¶] On the other hand, as I've explained to counsel, if they were not successful and the trial did not go the way the defense would like it to go, then their exposure is considerable, and that is made-if not worse, there's certainly no benefit for acceptance of responsibility if this comes after a trial." A proper indicated sentence does not occur where "the court extended leniency to defendant because of his plea." ( Clancey , supra , 56 Cal.4th at p. 578 , 1

2015(See Hill v. Newkirk, supra, 26 Cal.App.4th at p. 1059 .) Alternatively, as asserted by defendants in response to JCC’s claim for disgorgement, substantial compliance is an equitable defense to JCC’s claim.

2015(See Hill v. Newkirk, supra, 26 Cal.App.4th at p. 1059 .) Alternatively, as asserted by defendants in response to JCC’s claim for disgorgement, substantial compliance is an equitable defense to JCC’s claim.

2013Consequently, we will review the way the exception has been expressed in various cases.40 In Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011 (SOCA), the city council decided to expand the downtown convention center and 40 Two early cases addressing the improper deferral of mitigation measures are Sundstrom, supra, 202 Cal.App.3d 296 , and Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359 .

2013Consequently, we will review the way the exception has been expressed in various cases. 40 *736 In Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011 [ 280 Cal.Rptr. 478 ] (SOCA), the city council decided to expand the downtown convention center and construct an office tower. 41 (Id. at p. 1015.) An association challenged the project’s EIR on the ground that it failed to describe and examine “true” mitigation measures for the project’s parking impacts.

2002We stated, "requiring each new breath-testing device or mechanism to be subjected to a Kelly/Frye analysis would lead to unnecessary and unduly burdensome litigation." ( People v. Bury, supra, 41 Cal.App.4th at p. 1202 , 49 Cal. Rptr.2d 107 .) We concluded that the way to test the foundational requirements was not through a Kelly/Frye hearing but in cross-examination. ( Ibid. ) We stated defendant "should have questioned whether the testing apparatus was in working order, whether the test was properly administered, and whether the operator was competent and qualified." ( Ibid. ) Moreover, defe

2002We stated, "requiring each new breath-testing device or mechanism to be subjected to a Kelly/Frye analysis would lead to unnecessary and unduly burdensome litigation." ( People v. Bury, supra, 41 Cal.App.4th at p. 1202 , 49 Cal. Rptr.2d 107 .) We concluded that the way to test the foundational requirements was not through a Kelly/Frye hearing but in cross-examination. ( Ibid. ) We stated defendant "should have questioned whether the testing apparatus was in working order, whether the test was properly administered, and whether the operator was competent and qualified." ( Ibid. ) Moreover, defe

2002We stated, “requiring each new breath-testing device or mechanism to be subjected to a Kelly/Frye analysis would lead to unnecessary and unduly burdensome litigation.” (People v. Bury, supra, 41 Cal.App.4th at p. 1202 .) We concluded that the way to test the foundational requirements was not through a Kelly/Frye hearing but in cross-examination.

2002We stated, "requiring each new breath-testing device or mechanism to be subjected to a Kelly/Frye analysis would lead to unnecessary and unduly burdensome litigation." ( People v. Bury, supra, 41 Cal.App.4th at p. 1202 , 49 Cal. Rptr.2d 107 .) We concluded that the way to test the foundational requirements was not through a Kelly/Frye hearing but in cross-examination. ( Ibid. ) We stated defendant "should have questioned whether the testing apparatus was in working order, whether the test was properly administered, and whether the operator was competent and qualified." ( Ibid. ) Moreover, defe

1998“For example, the record developed below tells us nothing about this hearing officer’s past volume of cases for the airport, what period of time is encompassed by those rulings, the nature of his prior rulings, etc.” (Id. at p. 770, fn. 4.) The court in Linney went on to state, “In any event, we do not find the theory compelling as a matter of law.” (Linney v. Turpen, supra, 42 *228 Cal.App.4th at p. 770.) In a footnote the court stated, “If it is the position of appellant and our dissenting colleague that, by virtue of the way the hearing officer is selected and compensated, he or she thus ha

1996If it is the position of appellant and our dissenting colleague that, by virtue of the way the hearing officer is selected and compensated, he or she thus has a “financial interest" in the case, we would be constrained to note that, as suggested by footnote 5 of Andrews, supra, 28 Cal.3d at page 793 , “financial interest” in this context should be as defined in Code of Civil Procedure section 170.5, subdivision (b), nothing less but also nothing more.

1934(Humphreys v. Blasingame, 104 Cal. 40 [ 37 Pac. 804 ]; Silva v. Hawn, 10 Cal. App. 544 [ 102 Pac. 952 ]; Bashore v. Mooney, 4 Cal. App. 276 [ 87 Pac. 553 ].) The question of permissive use of a right of way was before the court in the case of Alper v. Torney, 7 Cal. App. 8 [ 93 Pac. 402, 404 ], where it was said: “Appellant claims that the evidence shows that the use was only ‘permissive’ and not ‘adverse’.

1906It was said in Humphreys v. Blasingame, 104 Cal. 40, 44 , [ 37 Pac. 804, 805 ], “Plaintiff’s use of the way under claim of right was necessarily hostile, but it need not amount to an ouster or exclusion of the defendant from a right to use the way.

1934(Humphreys v. Blasingame, 104 Cal. 40 [ 37 Pac. 804 ]; Silva v. Hawn, 10 Cal. App. 544 [ 102 Pac. 952 ]; Bashore v. Mooney, 4 Cal. App. 276 [ 87 Pac. 553 ].) The question of permissive use of a right of way was before the court in the case of Alper v. Torney, 7 Cal. App. 8 [ 93 Pac. 402, 404 ], where it was said: “Appellant claims that the evidence shows that the use was only ‘permissive’ and not ‘adverse’.

1906It was said in Humphreys v. Blasingame, 104 Cal. 40, 44 , [ 37 Pac. 804, 805 ], “Plaintiff’s use of the way under claim of right was necessarily hostile, but it need not amount to an ouster or exclusion of the defendant from a right to use the way.

2025(In re Brown (1998) 17 Cal.4th 873, 881 .) Even in the classic Pitchess context, courts have determined “ ‘[t]he practice of disclosing only the name of the complainant and contact information must yield to the requirement of providing sufficient information to prepare for a fair trial.’ ” (Nuno, supra, 105 Cal.App.5th at p. 1054; accord, Alvarez v. Superior Court (2004) 117 Cal.App.4th 1107, 1112 .) Thus, “if the movant’s ability to investigate the limited, disclosed information to determine whether it would lead to the discovery [is] stymied,” such as by a complainant or witness’s refusal or

2025(People v. Virgil (2011) 51 Cal.4th 1210, 1249 .) Although defense counsel did not move to strike the witness’s nonresponsive answer, counsel’s objection preserved the issue for appeal.

2023Absent evidence of negligence, Boy has not met his burden of proof, justifying JNOV. 62 In a case like Boy’s, where the plaintiff is a private individual, the applicable standard of fault is negligence, i.e., whether the defendants failed to use reasonable care to determine the truth or falsity of the statement. ( Brown, supra, 48 Cal.3d at pp. 741-742; McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 114 ; Grewal v. Jammu (2011) 191 Cal.App.4th 977, 990 .) Boy challenged the reasonableness of Hwang’s investigation as a way to challenge the reasonableness of Hwang’s and Crines’s c

2023Absent evidence of negligence, Boy has not met his burden of proof, justifying JNOV. 62 In a case like Boy’s, where the plaintiff is a private individual, the applicable standard of fault is negligence, i.e., whether the defendants failed to use reasonable care to determine the truth or falsity of the statement. ( Brown, supra, 48 Cal.3d at pp. 741-742; McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 114 ; Grewal v. Jammu (2011) 191 Cal.App.4th 977, 990 .) Boy challenged the reasonableness of Hwang’s investigation as a way to challenge the reasonableness of Hwang’s and Crines’s c

2022(Id. at p. 471.) The Brown court reasoned that the need for a full factual record (see Collins, supra, 42 Cal.3d at p. 384 ) did not apply when the matter presented “legal issues concerning the admissibility of confessions obtained in violation of the Constitution.” (Brown, 42 Cal.App.4th at p. 470 .) Brown went on to distinguish the situation—as in this case—of an assertedly improperly admitted prior felony conviction: “Although a challenge to an improperly admitted prior felony conviction involves factual determinations, the trial court and the reviewing court can determine whether a constit

2022(Id. at p. 471.) The Brown court reasoned that the need for a full factual record (see Collins, supra, 42 Cal.3d at p. 384 ) did not apply when the matter presented “legal issues concerning the admissibility of confessions obtained in violation of the Constitution.” (Brown, 42 Cal.App.4th at p. 470 .) Brown went on to distinguish the situation—as in this case—of an assertedly improperly admitted prior felony conviction: “Although a challenge to an improperly admitted prior felony conviction involves factual determinations, the trial court and the reviewing court can determine whether a constit

2022(Id. at p. 471.) The Brown court reasoned that the need for a full factual record (see Collins, supra, 42 Cal.3d at p. 384 ) did not apply when the matter presented “legal issues concerning the admissibility of confessions obtained in violation of the Constitution.” (Brown, 42 Cal.App.4th at p. 470 .) Brown went on to distinguish the situation—as in this case—of an assertedly improperly admitted prior felony conviction: “Although a challenge to an improperly admitted prior felony conviction involves factual determinations, the trial court and the reviewing court can determine whether a constit

2022Pekary correctly points out that in Baral v. Schnitt (2016) 1 Cal.5th 376, 393 , our Supreme Court held that anti-SLAPP motions may be used “to attack parts of a count as pleaded.” Such motions, similar to garden variety motions to strike, are “well understood as a way to challenge particular allegations.” (Id. at 394.) However, the court did not “agree” with Pekary that only the “stolen community funds” language was actionable.

2020Justice Corrigan acknowledged the majority opinion’s reliance on People v. Barrick (1982) 33 Cal.3d 115, 20 .

2020In his dissenting opinion, Justice Chin concluded that section 1166 applies to all convicted defendants, including defendants convicted by guilty pleas, and not only verdict-convicted defendants. ( Seneca, supra, 29 Cal.4th at pp. 964-965 (dis. opn.

2020It also charged the alternative ways of violating section 69 in the conjunctive ‘and’ rather than the disjunctive ‘or.” (Smith, supra, 57 Cal.4th at p. 246 and fns. 1 & 2 (conc. opn. of Corrigan, J.), italics added.)4 4In the concurring opinion, Justice Corrigan agreed section 148, subdivision (a)(1) was a lesser included offense in Smith based on the way in which the violation of section 69 was alleged in the information filed against the defendant.

2019This argument not only ignores that courts must read the instructions as a whole, but also ignores 12 that the trial court’s substitution of the hard copies of the final instructions for the initial instructions was a pretty strong indication as to which set of instructions was to be used in the jury room. “[W]e presume that jurors are intelligent individuals who are capable of understanding instructions and applying them to the facts of the case before them” (People v. Hajek & Vo (2014) 58 Cal.4th 1144, 1246 , overruled on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216 ) and d

2019This argument not only ignores that courts must read the instructions as a whole, but also ignores 12 that the trial court’s substitution of the hard copies of the final instructions for the initial instructions was a pretty strong indication as to which set of instructions was to be used in the jury room. “[W]e presume that jurors are intelligent individuals who are capable of understanding instructions and applying them to the facts of the case before them” (People v. Hajek & Vo (2014) 58 Cal.4th 1144, 1246 , overruled on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216 ) and d