factual predicate exception in California

2014(C.F., supra, 193 Cal.App.4th at p. 555 ; Autumn H., supra, 27 Cal.App.4th at p. 575 .) “Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.).) As the parent must establish the existence of the factual predicate of the claimed exception, and the juvenile court must then weigh the evidence and determine whether i

2013(C.F., supra, 193 Cal.App.4th at p. 555 ; Autumn H., supra, 27 Cal.App.4th at p. 575 .) “Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that 14 preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.).) As the parent must establish the existence of the factual predicate of the claimed exception, and the juvenile court must then weigh the evidence and determine whethe

2022(In re C.F. (2011) 193 Cal.App.4th 549, 553 .) The factual predicate of the exception must be supported by substantial evidence, but the juvenile court exercises its discretion in weighing that evidence and determining detriment.

2022(In re C.F. (2011) 193 Cal.App.4th 549, 553 .) The factual predicate of the exception must be supported by substantial evidence, but the juvenile court exercises its discretion in weighing that evidence and determining detriment.

2021(In re K.P. (2012) 203 Cal.App.4th 614, 622 ; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 .) Mother did not meet her burden here.

2021(In re K.P. (2012) 203 Cal.App.4th 614, 622 ; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 .) Here, the parents generally visited regularly during those periods when they were not incarcerated, but the visits were not always positive.

2023(Id. at pp. 554–558.) Our high court reasoned: “[B]ecause the preliminary facts justifying application of [Evidence Code] section 1024 existed prior to the realization of the threatened danger, not only were the therapists free to communicate such statements to the victim, but 18 defendant’s statements were not privileged and the trial court correctly ruled that evidence concerning those statements was admissible at trial.” (Wharton, at p. 558; accord, San Diego Trolley v. Superior Court (2001) 87 Cal.App.4th 1083, 1092 (San Diego Trolley) [“when the factual predicate of the exception exists,

2001(Id. at pp. 561-562; People v. Gomez (1982) 134 Cal.App.3d 874, 881 [ 185 Cal.Rptr. 155 ]; Mavroudis v. Superior Court (1980) 102 Cal.App.3d 594, 604 [ 162 Cal.Rptr. 724 ].) B.

2023(Id. at pp. 554–558.) Our high court reasoned: “[B]ecause the preliminary facts justifying application of [Evidence Code] section 1024 existed prior to the realization of the threatened danger, not only were the therapists free to communicate such statements to the victim, but 18 defendant’s statements were not privileged and the trial court correctly ruled that evidence concerning those statements was admissible at trial.” (Wharton, at p. 558; accord, San Diego Trolley v. Superior Court (2001) 87 Cal.App.4th 1083, 1092 (San Diego Trolley) [“when the factual predicate of the exception exists,

2023Certainly, it does not demand . . . that the psychotherapist must actually disclose the relevant communication or even issue a warning.” (Menendez v. Superior Court (1992) 3 Cal.4th 435, 451 (Menendez).) As the Supreme Court held in Wharton: “[O]peration of [Evidence Code] section 1024 is not keyed to voluntary disclosure and the concept of waiver as is Evidence Code section 912, which provides for waiver upon an uncoerced disclosure by the holder of the privilege.

2023(Id. at pp. 554–558.) Our high court reasoned: “[B]ecause the preliminary facts justifying application of [Evidence Code] section 1024 existed prior to the realization of the threatened danger, not only were the therapists free to communicate such statements to the victim, but 18 defendant’s statements were not privileged and the trial court correctly ruled that evidence concerning those statements was admissible at trial.” (Wharton, at p. 558; accord, San Diego Trolley v. Superior Court (2001) 87 Cal.App.4th 1083, 1092 (San Diego Trolley) [“when the factual predicate of the exception exists,

2021(See Felker, supra, 518 U.S. at pp. 657–658; see also Felker v. Turpin (11th Cir. 1996) 83 F.3d 1303, 1306 [“Felker does not contend that the factual predicate for this claim could not have been discovered previously through the exercise of due diligence.”].) The high court in Felker had no reason to address the constitutional implications of preventing a habeas petitioner from raising a substantial constitutional claim at the first available opportunity, as the broad reading of section 1509(d) would do.

2021But as explained in Class Plaintiffs, supra, 955 F.2d 1268 , “[t]he weight of authority holds that a federal court may release not only those claims alleged in the complaint, but also a claim ‘based on the identical factual predicate as that underlying the claims in the settled class action even though the claim was not presented and might not have been presentable in the class action.’ ” (Id. at p. 1287, italics added, quoting TBK Partners, Ltd. v. Western Union Corp. (2d Cir. 1982) 675 F.2d 456, 460 (TBK Partners).) To this end, the identical factual predicate test is aimed at “further[ing]

2021But as explained in Class Plaintiffs, supra, 955 F.2d 1268 , “[t]he weight of authority holds that a federal court may release not only those claims alleged in the complaint, but also a claim ‘based on the identical factual predicate as that underlying the claims in the settled class action even though the claim was not presented and might not have been presentable in the class action.’ ” (Id. at p. 1287, italics added, quoting TBK Partners, Ltd. v. Western Union Corp. (2d Cir. 1982) 675 F.2d 456, 460 (TBK Partners).) To this end, the identical factual predicate test is aimed at “further[ing]

2010(People v. Garcia (2006) 39 Cal.4th 1070, 1077 [ 48 Cal.Rptr.3d 75 , 141 P.3d 197 ]; People v. Cooper (2007) 149 Cal.App.4th 500, 518 [ 57 Cal.Rptr.3d 389 ] (Cooper).) The burden is on the defendant to establish the factual predicate for the doctrine to apply.

2010(People v. Garcia (2006) 39 Cal.4th 1070, 1077 [ 48 Cal.Rptr.3d 75 , 141 P.3d 197 ]; People v. Cooper (2007) 149 Cal.App.4th 500, 518 [ 57 Cal.Rptr.3d 389 ] (Cooper).) The burden is on the defendant to establish the factual predicate for the doctrine to apply.

2010(Schiro v. Farley, supra, 510 U.S. at p. 233 ; Cooper, supra, 149 Cal.App.4th at p. 519 .) We do not apply collateral estoppel “with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality.” (Ashe, supra, 397 U.S. at p. 444 ; accord, Santamaria, supra, 8 Cal.4th at p. 912 .) The California Supreme Court and Courts of Appeal have expressed doubt that the doctrine of collateral estoppel applies in further proceedings in the same litigation, such as a defendant’s retrial after his or her conviction is set aside for reasons other than the legal suf

2010(People v. Garcia (2006) 39 Cal.4th 1070, 1077 [ 48 Cal.Rptr.3d 75 , 141 P.3d 197 ]; People v. Cooper (2007) 149 Cal.App.4th 500, 518 [ 57 Cal.Rptr.3d 389 ] (Cooper).) The burden is on the defendant to establish the factual predicate for the doctrine to apply.

2010(People v. Garcia (2006) 39 Cal.4th 1070, 1077 [ 48 Cal.Rptr.3d 75 , 141 P.3d 197 ]; People v. Cooper (2007) 149 Cal.App.4th 500, 518 [ 57 Cal.Rptr.3d 389 ] (Cooper).) The burden is on the defendant to establish the factual predicate for the doctrine to apply.

2008The first question is whether the factual predicate for the privilege was present—whether, in traditional terms, the “ ‘occasion’ ” was “ ‘privileged.’ ” (Taus v. Loftus (2007) 40 Cal.4th 683, 721 [ 54 Cal.Rptr.3d 775 , 151 P.3d 1185 ].) At trial the defendant bears the burden of proof on this question.

2008The first question is whether the factual predicate for the privilege was present—whether, in traditional terms, the “ ‘occasion’ ” was “ ‘privileged.’ ” (Taus v. Loftus (2007) 40 Cal.4th 683, 721 [ 54 Cal.Rptr.3d 775 , 151 P.3d 1185 ].) At trial the defendant bears the burden of proof on this question.

2006(People v. Fairbank (1997) 16 Cal.4th 1223, 1241 [ 69 Cal.Rptr.2d 784 , 947 P.2d 1321 ]; see People v. Michaels, supra, 28 Cal.4th at p. 526, fn. 6.) *879 4.

2006(People v. Fairbank (1997) 16 Cal.4th 1223, 1241 [ 69 Cal.Rptr.2d 784 , 947 P.2d 1321 ]; see People v. Michaels, supra, 28 Cal.4th at p. 526, fn. 6.) *879 4.

2006(People v. Fairbank (1997) 16 Cal.4th 1223, 1241 [ 69 Cal.Rptr.2d 784 , 947 P.2d 1321 ]; see People v. Michaels, supra, 28 Cal.4th at p. 526, fn. 6.) *879 4.

2001(Id. at pp. 561-562; People v. Gomez (1982) 134 Cal.App.3d 874, 881 [ 185 Cal.Rptr. 155 ]; Mavroudis v. Superior Court (1980) 102 Cal.App.3d 594, 604 [ 162 Cal.Rptr. 724 ].) B.

2001(Id. at pp. 561-562; People v. Gomez (1982) 134 Cal.App.3d 874, 881 [ 185 Cal.Rptr. 155 ]; Mavroudis v. Superior Court (1980) 102 Cal.App.3d 594, 604 [ 162 Cal.Rptr. 724 ].) B.