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  Friday, November 2, 2018  
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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.
NINTH U.S. CIRCUIT COURT OF APPEALS
Criminal Law and Procedure
A defendant's right to physically confront an adverse witness cannot be compromised by permitting the witness to testify by video unless use of the remote video procedure is necessary and the reliability of the testimony is otherwise assured.

United States v. Carter - filed Nov. 2, 2018
Cite as 2018 S.O.S. 16-50271
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Immigration Law
A grant of regulatory employment authorization under 8 C.F.R. Sec. 274a.12(b)(20) does not confer lawful immigration status for purposes of establishing eligibility for status adjustment under 8 U.S.C. Sec. 1255(k)(2).

Ma v. Sessions - filed Nov. 2, 2018
Cite as 2018 S.O.S. 15-73520
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CALIFORNIA COURT OF APPEAL
Civil Procedure
The automatic stay triggered by the appeal from a judgment does not remove a trial court's subject matter jurisdiction to accept an amended complaint that asserted claims that were separate from the claims litigated in the original action, by parties who had not been involved in the original action. If a court has subject matter jurisdiction, a party who seeks or consents to action beyond the court's power as defined by statute or decisional rule may be estopped to complain of the ensuing action. An appeal of a judgment final for purposes of the one "final judgment" rule does not remove the trial court's jurisdiction to conduct litigation of claims outside the scope of that judgment. When a decedent's heirs are not signatories to a settlement executed by other plaintiffs, the settling defendant's key safeguard against a subsequent wrongful death action by the heirs is a "hold harmless" provision in the settlement binding on the original plaintiffs, unless the settlement is also binding on the heirs. A defendant is potentially entitled to a credit under Code of Civil Procedure Sec. 877 in the heirs' wrongful death action if they are bound by the settlement.

Marteney v. Elementis Checmicals Inc. - filed Oct. 5, 2018, publication ordered Nov. 1, 2018, Second District, Div. Four
Cite as 2018 S.O.S. 5242
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Constitutional Law
Fish & Game Code Sec. 2022's exception for activities authorized by the federal government is not unconstitutionally vague. The exceptions for musical instruments containing less than 20 percent ivory by volume also are not unconstitutionally vague.

Ivory Education Institute v. Department of Fish and Wildlife (National Resources Defense Council - filed Nov. 1, 2018, Second District, Div. Four
Cite as 2018 S.O.S. 5250
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Criminal Law and Procedure
A trial court did not abuse its discretion or violate a defendant's due process rights by refusing to allow testimony by an expert on eyewitness identifications where ample evidence corroborated the witness' identification of the defendant and the probative value of the expert's testimony was substantially outweighed by the probability its admission would consume undue court time. Senate Bill 1393 applies retroactively to all cases or judgments of conviction in which a five-year term was imposed at sentencing, based on a prior serious felony conviction, provided the judgment of conviction is not final when SB 1393 becomes effective on Jan. 1, 2019.

People v. Garcia - filed Nov. 1, 2018, Fourth District, Div. Two
Cite as 2018 S.O.S. 5255
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Criminal Law and Procedure
The "reasonable and fair market value" test from Penal Code Sec. 484 is the proper measure of the $950 value threshold for theft crimes. Rvidence of illicit sales can be considered in determining market value and evidence of the bank account balance in the account linked to a stolen debit card is also relevant to determining the market value of the card.

Caretto v. Superior Court (People) - filed Nov. 1, 2018, Second District, Div. Eight
Cite as 2018 S.O.S. 5259
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Criminal Law and Procedure
A sentence enhancement cannot be imposed under Penal Code Sec. 667.5(b) if the conviction on which it was based has been reclassified from a felony to a misdemeanor pursuant to Proposition 47 before sentencing. The "washout" provision of Sec. 667.5(b) disregards prison terms for convictions reduced under Proposition 47.

People v. Kelly - filed Nov. 1, 2018, Fifth District
Cite as 2018 S.O.S. 5264
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Criminal Law and Procedure
The office of an individual engaged in the business of selling motorhomes fits within the definition of a "commercial establishment" for purposes of Penal Code Sec. 459.5.

People v. Franske - filed Nov. 1, 2018, Third District
Cite as 2018 S.O.S. 5271
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Employment Law
A provision in an employment contract that prohibited employees who leave the employer from participating in the soliciting or recruiting of other employees for a period of one year was void under Business and Professions Code Sec. 16600. Sec. 16600 precludes an employer from restraining an employee from engaging in his or her "profession, trade, or business," even if such an employee uses information that is confidential but not a trade secret. Breaching an alleged contract does not create a tort cause of action. The identity and contact information of workers for a recruiting company were not a "secret" for purposes of Civil Code Sec. 3426.1(d) when this information was known to a rival recruiting company long before workers from the first company went to work for the rival.

AMN Healthcare, Inc. v. Aya Healthcare Services, Inc. - filed Nov. 1, 2018, Fourth District, Div. One
Cite as 2018 S.O.S. 5273
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Modification
People v. Bedolla - filed Nov. 2, 2018, Sixth District
Cite as 2018 S.O.S. 5285
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