automatic rule in California

2018(See, e.g., Peerless of America, Inc. v. N.L.R.B. (7th Cir. 1973) 484 F.2d 1108 , 1120 [where non-egregious violations involved, it was improper for the Board to make a conclusory assumption that otherwise resilient workers can be "cowed" by such "marginal indiscretions" into abandoning their voting intentions].) 98 Although it appears highly questionable that this piece-rate increase could have resulted in significant coercion under the circumstances, we stop short of deciding the matter for the Board.

2018(See, e.g., Peerless of America, Inc. v. N.L.R.B. (7th Cir. 1973) 484 F.2d 1108, 1120 [where non-egregious violations involved, it was improper for the Board to make a conclusory assumption that otherwise resilient workers can be “cowed” by such “marginal indiscretions” into abandoning their voting intentions].)98 Although it appears highly questionable that this piece-rate increase could 96 To the extent we are arguably overlapping into election remedy issues here, we will justify doing so in the portion of this opinion that follows below. 97 Also, as indicated herein above, the Board’s gratu

2014(Polanski v. Superior Court (2009) 180 Cal.App.4th 507, 531 .) As the California Supreme Court has long- recognized: “A party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state.” (MacPherson v. MacPherson (1939) 13 Cal.2d 271, 277 .) “Defendant’s flight from the court’s jurisdiction makes a mockery of the justice system because it places the misdemeanant, rather than the courts, in the position of determining whether to submit to the court’s

2014(Polanski v. Superior Court (2009) 180 Cal.App.4th 507, 531 .) As the California Supreme Court has long- recognized: “A party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state.” (MacPherson v. MacPherson (1939) 13 Cal.2d 271, 277 .) “Defendant’s flight from the court’s jurisdiction makes a mockery of the justice system because it places the misdemeanant, rather than the courts, in the position of determining whether to submit to the court’s

2004The automatic rule Stephen urges on the basis of the Ansley language is not in keeping with section 388 as interpreted in case law. “[S]ection 388 contemplates that a petitioner make a prima facie showing of both elements to trigger an evidentiary hearing on the petition.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 [ 92 Cal.Rptr.2d 20 ].) The statutory language “makes clear that the hearing is only to be held if it appears that the best interests of the child may be promoted by the proposed change of order.” (Id. at p. 807.) Moreover, when Ansley was decided in 1986, the statutory depend

2004The automatic rule Stephen urges on the basis of the Ansley language is not in keeping with section 388 as interpreted in case law. “[S]ection 388 contemplates that a petitioner make a prima facie showing of both elements to trigger an evidentiary hearing on the petition.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 [ 92 Cal.Rptr.2d 20 ].) The statutory language “makes clear that the hearing is only to be held if it appears that the best interests of the child may be promoted by the proposed change of order.” (Id. at p. 807.) Moreover, when Ansley was decided in 1986, the statutory depend

2001Section 190.4, subdivision (e), requires a court ruling upon a motion for modification to "reweigh independently the evidence of aggravating and mitigating circumstances and then determine whether, in its independent judgment, the weight of the evidence supports the jury's verdict. [Citations.] The trial court must `consider, take into account, and be guided by' the aggravating and mitigating circumstances referred to in section 190.3." ( People v. Crittenden (1994) 9 Cal.4th 83, 150 , 36 Cal.Rptr.2d 474 , 885 P.2d 887 .) In support of his claim, defendant points to the following language: "[T

2001Automatic motion to modify penalty For the first time in his reply brief, defendant contends that the trial court employed an incorrect legal standard to review the jury’s determination, failed to reweigh the aggravating and mitigating circumstances independently, and failed to state its reasons adequately in denying his application to modify the death verdict pursuant to section 190.4, subdivision (e). *1039 Under that statute, the trial court is required to “ ‘independently reweigh the evidence of aggravating and mitigating circumstances and then to determine whether, in the judge’s independ

1996A. (1954) 43 Cal.2d 121 [ 272 P.2d 4 ] [there can be no constitutional objection to the authorized revocation through administrative procedures of an automatic exception, where after a public hearing, upon notice, it is found that the nonconforming use is so exercised as to be detrimental to the public health or safety, so as to constitute a nuisance]; O’Hagen v. Board of Zoning Adjustment (1971) 19 Cal.App.3d 151 [ 96 Cal.Rptr. 484 ] [although plaintiff acquired vested right in use permit, finding activity at drive-in restaurant amounted to a nuisance constituted compelling public necessity w

1996A. (1954) 43 Cal.2d 121 [ 272 P.2d 4 ] [there can be no constitutional objection to the authorized revocation through administrative procedures of an automatic exception, where after a public hearing, upon notice, it is found that the nonconforming use is so exercised as to be detrimental to the public health or safety, so as to constitute a nuisance]; O’Hagen v. Board of Zoning Adjustment (1971) 19 Cal.App.3d 151 [ 96 Cal.Rptr. 484 ] [although plaintiff acquired vested right in use permit, finding activity at drive-in restaurant amounted to a nuisance constituted compelling public necessity w

2013(Polanski v. Superior Court (2009) 180 Cal.App.4th 507, 532 [ 102 Cal.Rptr.3d 696 ] (Polanski); see In re Marriage of Hofer (2012) 208 Cal.App.4th 454 [ 145 Cal.Rptr.3d 697 ].) The doctrine is “not an automatic rule but a discretionary tool of the courts that may only be applied when the balance of all equitable concerns leads the court to conclude that it is a proper sanction for a party’s flight.” (Polanski, supra, 180 Cal.App.4th at p. 533 .) “In a noncriminal context, courts routinely decline to disentitle litigants on the basis of contempt, fugitive status, or noncompliance with court ord

2013(Polanski v. Superior Court (2009) 180 Cal.App.4th 507, 532 [ 102 Cal.Rptr.3d 696 ] (Polanski); see In re Marriage of Hofer (2012) 208 Cal.App.4th 454 [ 145 Cal.Rptr.3d 697 ].) The doctrine is “not an automatic rule but a discretionary tool of the courts that may only be applied when the balance of all equitable concerns leads the court to conclude that it is a proper sanction for a party’s flight.” (Polanski, supra, 180 Cal.App.4th at p. 533 .) “In a noncriminal context, courts routinely decline to disentitle litigants on the basis of contempt, fugitive status, or noncompliance with court ord

2013McIntyre, supra, 564 U.S. at p._[ 180 L.Ed.2d at p. 781 ] (conc. opn. of Breyer, J.); see World-Wide Volkswagen Corp. v. Woodson, supra, 444 U.S. at p. 296 .) Such an automatic rule also could not be reconciled with the constitutional demand for minimum contacts and purposeful availment: “A rule like the New Jersey Supreme Court’s would permit every State to assert jurisdiction in a products-liability suit against any domestic manufacturer who sells its products (made anywhere in the United States) to a national distributor, no matter how large or small the manufacturer, no matter how distant

2012The application of the above principles and the issue whether an accused has been denied his constitutional right to a public trial cannot be determined in the abstract, but must be determined by reference to the facts of the particular case. [Citation.]” (Esquibel, supra, 166 Cal.App.4th at pp. 552-553 (Esquibel); accord, People v. Prince (2007) 40 Cal.4th 1179, 1279 [ 57 Cal.Rptr.3d 543 , 156 P.3d 1015 ].) Defendants agree with EsquibeV s conclusion that the temporary exclusion of select supporters of the accused does not create an automatic violation of the constitutional right to a public

2012The application of the above principles and the issue whether an accused has been denied his constitutional right to a public trial cannot be determined in the abstract, but must be determined by reference to the facts of the particular case. [Citation.]” (Esquibel, supra, 166 Cal.App.4th at pp. 552-553 (Esquibel); accord, People v. Prince (2007) 40 Cal.4th 1179, 1279 [ 57 Cal.Rptr.3d 543 , 156 P.3d 1015 ].) Defendants agree with EsquibeV s conclusion that the temporary exclusion of select supporters of the accused does not create an automatic violation of the constitutional right to a public

2012(Accord, People v. Bui (2010) 183 Cal.App.4th 675, 688 [ 107 Cal.Rptr.3d 585 ].) However, defendants assert, here, the trial court erred in excluding their entire family from the last 30 minutes of testimony, closing argument and jury instruction.

2012(Accord, People v. Bui (2010) 183 Cal.App.4th 675, 688 [ 107 Cal.Rptr.3d 585 ].) However, defendants assert, here, the trial court erred in excluding their entire family from the last 30 minutes of testimony, closing argument and jury instruction.

2009The Balance of Equitable Considerations Fugitive disentitlement, however much it may advance legitimate policies (U.S. v. Veliotis (S.D.N.Y. 1984) 586 F.Supp. 1512, 1515 (Veliotis)), is not an automatic rule but a discretionary tool of the courts that may only be applied when the balance of all equitable concerns leads the court to conclude that it is a proper sanction for a party’s flight.

2008Therefore, we urge trial courts to exercise caution in weighing the probative value of individual examples of pornography possessed or accessed by a defendant. 18 In support of these contentions, defendant cites various cases addressing the criteria that guide the jurors’ decision at the penalty phase (Espinosa v. Florida (1992) 505 U.S. 1079, 1081-1082 [ 120 L.Ed.2d 854 , 112 S.Ct. 2926 ] [neither jury nor judge may consider invalid aggravating circumstance; aggravating factor that murder was especially wicked, evil, atrocious, or cruel was unconstitutionally vague]; Clemons v. Mississippi (1

2008Therefore, we urge trial courts to exercise caution in weighing the probative value of individual examples of pornography possessed or accessed by a defendant. 18 In support of these contentions, defendant cites various cases addressing the criteria that guide the jurors’ decision at the penalty phase (Espinosa v. Florida (1992) 505 U.S. 1079, 1081-1082 [ 120 L.Ed.2d 854 , 112 S.Ct. 2926 ] [neither jury nor judge may consider invalid aggravating circumstance; aggravating factor that murder was especially wicked, evil, atrocious, or cruel was unconstitutionally vague]; Clemons v. Mississippi (1

2008Therefore, we urge trial courts to exercise caution in weighing the probative value of individual examples of pornography possessed or accessed by a defendant. 18 In support of these contentions, defendant cites various cases addressing the criteria that guide the jurors’ decision at the penalty phase (Espinosa v. Florida (1992) 505 U.S. 1079, 1081-1082 [ 120 L.Ed.2d 854 , 112 S.Ct. 2926 ] [neither jury nor judge may consider invalid aggravating circumstance; aggravating factor that murder was especially wicked, evil, atrocious, or cruel was unconstitutionally vague]; Clemons v. Mississippi (1

2008Therefore, we urge trial courts to exercise caution in weighing the probative value of individual examples of pornography possessed or accessed by a defendant. 18 In support of these contentions, defendant cites various cases addressing the criteria that guide the jurors’ decision at the penalty phase (Espinosa v. Florida (1992) 505 U.S. 1079, 1081-1082 [ 120 L.Ed.2d 854 , 112 S.Ct. 2926 ] [neither jury nor judge may consider invalid aggravating circumstance; aggravating factor that murder was especially wicked, evil, atrocious, or cruel was unconstitutionally vague]; Clemons v. Mississippi (1

2008Therefore, we urge trial courts to exercise caution in weighing the probative value of individual examples of pornography possessed or accessed by a defendant. 18 In support of these contentions, defendant cites various cases addressing the criteria that guide the jurors’ decision at the penalty phase (Espinosa v. Florida (1992) 505 U.S. 1079, 1081-1082 [ 120 L.Ed.2d 854 , 112 S.Ct. 2926 ] [neither jury nor judge may consider invalid aggravating circumstance; aggravating factor that murder was especially wicked, evil, atrocious, or cruel was unconstitutionally vague]; Clemons v. Mississippi (1

2008Therefore, we urge trial courts to exercise caution in weighing the probative value of individual examples of pornography possessed or accessed by a defendant. 18 In support of these contentions, defendant cites various cases addressing the criteria that guide the jurors’ decision at the penalty phase (Espinosa v. Florida (1992) 505 U.S. 1079, 1081-1082 [ 120 L.Ed.2d 854 , 112 S.Ct. 2926 ] [neither jury nor judge may consider invalid aggravating circumstance; aggravating factor that murder was especially wicked, evil, atrocious, or cruel was unconstitutionally vague]; Clemons v. Mississippi (1

2008Therefore, we urge trial courts to exercise caution in weighing the probative value of individual examples of pornography possessed or accessed by a defendant. 18 In support of these contentions, defendant cites various cases addressing the criteria that guide the jurors’ decision at the penalty phase (Espinosa v. Florida (1992) 505 U.S. 1079, 1081-1082 [ 120 L.Ed.2d 854 , 112 S.Ct. 2926 ] [neither jury nor judge may consider invalid aggravating circumstance; aggravating factor that murder was especially wicked, evil, atrocious, or cruel was unconstitutionally vague]; Clemons v. Mississippi (1

2008Therefore, we urge trial courts to exercise caution in weighing the probative value of individual examples of pornography possessed or accessed by a defendant. 18 In support of these contentions, defendant cites various cases addressing the criteria that guide the jurors’ decision at the penalty phase (Espinosa v. Florida (1992) 505 U.S. 1079, 1081-1082 [ 120 L.Ed.2d 854 , 112 S.Ct. 2926 ] [neither jury nor judge may consider invalid aggravating circumstance; aggravating factor that murder was especially wicked, evil, atrocious, or cruel was unconstitutionally vague]; Clemons v. Mississippi (1

1998(Roseleaf Corp. v. Chierighino (1963) 59 Cal.2d 35, 40 [ 27 Cal.Rptr. 873 , 378 P.2d 97 ].) In contrast, while the California Uniform Commercial Code provides some fair value protection under its requirements for commercially reasonable sales, it does not impose on a court the automatic requirement of holding a fair value hearing as part of the process of ruling on a deficiency judgment.

1998(Roseleaf Corp. v. Chierighino (1963) 59 Cal.2d 35, 40 [ 27 Cal.Rptr. 873 , 378 P.2d 97 ].) In contrast, while the California Uniform Commercial Code provides some fair value protection under its requirements for commercially reasonable sales, it does not impose on a court the automatic requirement of holding a fair value hearing as part of the process of ruling on a deficiency judgment.

1998(See, e.g., Estelle v. Maguire (1991) 502 U.S. 62, 71-73 [ 112 S.Ct. 475, 481-483 , 116 L.Ed.2d 385 ]; People v. Carpenter (1997) 15 Cal.4th 312, 393 [ 63 Cal.Rptr.2d 1 , 935 P.2d 708 ].) If the error is of a particular constitutional type—the passage and enforcement of a law or regulation that deprives property of all value—then the teaching of First English is that such an error is a compensable taking.

1998(See, e.g., Estelle v. Maguire (1991) 502 U.S. 62, 71-73 [ 112 S.Ct. 475, 481-483 , 116 L.Ed.2d 385 ]; People v. Carpenter (1997) 15 Cal.4th 312, 393 [ 63 Cal.Rptr.2d 1 , 935 P.2d 708 ].) If the error is of a particular constitutional type—the passage and enforcement of a law or regulation that deprives property of all value—then the teaching of First English is that such an error is a compensable taking.

1998(See, e.g., Estelle v. Maguire (1991) 502 U.S. 62, 71-73 [ 112 S.Ct. 475, 481-483 , 116 L.Ed.2d 385 ]; People v. Carpenter (1997) 15 Cal.4th 312, 393 [ 63 Cal.Rptr.2d 1 , 935 P.2d 708 ].) If the error is of a particular constitutional type—the passage and enforcement of a law or regulation that deprives property of all value—then the teaching of First English is that such an error is a compensable taking.

1998(See, e.g., Estelle v. Maguire (1991) 502 U.S. 62, 71-73 [ 112 S.Ct. 475, 481-483 , 116 L.Ed.2d 385 ]; People v. Carpenter (1997) 15 Cal.4th 312, 393 [ 63 Cal.Rptr.2d 1 , 935 P.2d 708 ].) If the error is of a particular constitutional type—the passage and enforcement of a law or regulation that deprives property of all value—then the teaching of First English is that such an error is a compensable taking.