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  Monday, April 29, 2019  
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The following caselaw summaries are provided as a courtesy to Los Angeles County Bar Association members by the Metropolitan News-Enterprise www.metnews.com. Summaries from the past 90 days are archived and searchable on the LACBA Web site at www.lacba.org/news-and-publications/daily-ebriefs.
U.S. SUPREME COURT
Government Law
The waiver of immunity in the Tennessee Valley Authority's sue-and-be-sued clause is not subject to a discretionary function exception of the kind in the Federal Tort Claims Act. The FTCA's discretionary function exception also does not apply to the TVA. To determine if the TVA has immunity, a court must decide whether the conduct alleged to be negligent is governmental or commercial in nature. If it is commercial, the TVA cannot invoke sovereign immunity.

Thacker v. Tennessee Valley Authority - filed April 29, 2019
Cite as 2019 S.O.S. 17-1201
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NINTH U.S. CIRCUIT COURT OF APPEALS
Bankruptcy Law
A 50 percent shareholder in an involuntary debtor lacked standing to seek damages under 11 U.S.C. Sec. 303(i) because it was not the debtor.

In the Matter of 8Speed8, Inc. - filed April 29, 2019
Cite as 2019 S.O.S. 17-16277
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CALIFORNIA SUPREME COURT
Criminal Law and Procedure
A minor child is not disqualified from serving as a witness just because he received therapy to cope with the death of his mother and sister, he discussed their murders with the prosecutor, or he had gaps in his memory from the morning of the crimes. While single-photograph show-ups are inherently suggestive, a witness' identification of a defendant was sufficiently reliable to be admissible where the witness made the identification shortly after the crime, he had previously seen the defendant when the defendant bought him ice cream, and his prior description of the defendant was accurate.

People v. Sanchez - filed April 29, 2019
Cite as 2019 S.O.S. 1988
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CALIFORNIA COURT OF APPEAL
Criminal Law and Procedure
An alleged statement does not qualify as a dying declaration when there was no evidence the speaker believed he was dying, despite the seriousness of his injuries, and the speaker did not actually die until two weeks later, following a heart attack.

People v. Ramirez - filed April 26, 2019, Second District, Div. Eight
Cite as 2019 S.O.S. 2007
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Criminal Law and Procedure
A trial court lacks jurisdiction, after an unqualified affirmance, to reconsider the merits of an action, even in the face of a change in the law.

People v. Berg - filed April 29, 2019, Fourth District, Div. One
Cite as 2019 S.O.S. 2010
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Criminal Law and Procedure
Trial courts may rely on facts underlying verdicts of acquittal in making sentencing choices, and they can rely on facts arguably rejected by the jury in returning a not true finding on a firearm use enhancement. Where a defendant is prosecuted solely on a theory of first-degree felony murder, Penal Code Sec. 654 precludes punishment for both murder and the underlying felony, but if prosecution presents alternative theories and there is evidence supporting a finding that the murder was premeditated, then the trial court may properly impose a sentence for both the murder and the felony.

People v. Carter - filed April 29, 2019, Fourth District, Div. One
Cite as 2019 S.O.S. 2018
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Criminal Law and Procedure
An expert witness providing child sexual abuse accommodation syndrome testimony cannot present predictive conclusions about whether an alleged victim should be believed. An invitation for jurors to presume defendant's guilt based on statistical probabilities deprives the defendant of a fair trial, and counsel's failure to object falls below the standard required for reasonably competent attorneys.

People v. Julian - filed April 29, 2019, Second District, Div. Six
Cite as 2019 S.O.S. 2027
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