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  Wednesday, November 28, 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
For a felon to be in possession of a "destructive device" for purposes of 18 U.S.C. sec. 922(g)(1), he need only possess a combination of parts from which a functional device "may be readily assembled". This requirement does not categorically exclude situations in which the assembly process entails the acquisition and addition of a new part. The "readily assembled" element can still be met so long as the defendant could acquire the missing part quickly and easily, and so long as the defendant could incorporate the missing part quickly and easily.

United States v. Kirkland - filed Nov. 28, 2018
Cite as 2018 S.O.S. 16-10514
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Employment Law
A two-step process is followed in determining whether a claim is barred by 29 U.S.C. Sec. 1113(2). First the court must identify the underlying violation on which the claim is founded, then the court must determine whether the plaintiff had "actual knowledge" of the alleged breach or violation. "Actual knowledge" for purposes of Sec. 1113(2) does not mean that a plaintiff had knowledge that an action violated the Employee Retirement Income Security Act, nor does it merely mean that a plaintiff had knowledge that the underlying action occurred. The defendant must show that the plaintiff was actually aware of the nature of the alleged breach more than three years before the plaintiff's action was filed. In an ERISA Sec. 1104 case, the plaintiff must have been aware that the defendant had acted and that those acts were imprudent.

Sulyma v. Intel Corporation Investment Police Committee - filed Nov. 28, 2018
Cite as 2018 S.O.S. 17-15864
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Torts
If an athlete suffers a concussion and then suffers a second head injury after being returned to play, under California law, the second injury is not inherent in the sport of water polo. An agency governing the sport of water polo failed to exercise reasonable care in the performance of its undertaking since it did not stablish a concussion-management and return-to-play protocol for its youth water polo league. If true, allegations that a governing agency for a sport failed to take action despite being well-aware of the severe risk of repeat concussions and of the need to implement a policy to remove players from play after suffering a head injury, its inaction would amount to gross negligence under California law.

Mayall v. USA Water Polo, Inc. - filed Nov. 28, 2018
Cite as 2018 S.O.S. 16-56389
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CALIFORNIA COURT OF APPEAL
Criminal Law and Procedure
A minor victim's testimony about defendant's hands approaching her private parts, followed by a touching of her thigh, left no uncertainty or vagueness as to the precise nature of defendant's conduct. The circumstances also demonstrated that the touching on three occasions was done with a lewd intent. A defendant cannot be convicted of Penal Code Sec. 288(a) and Sec. 288(b) based on a single act. A defendant who fell within Sec. 667.61 as it read at the time of his offenses could properly be sentenced to a life term for a conviction under Sec. 288(a).

People v. Morales - filed Nov. 27, 2018, Sixth District
Cite as 2018 S.O.S. 5545
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Environmental Law
The State Lands Commission erred by concluding that private commercial sand mining constitutes a public trust use of sovereign lands.

San Francisco Baykeeper v. State Lands Commission (Hanson Marine Operations) - filed Oct. 31, 2018, publication ordered Nov. 27, 2018, First District, Div. Four
Cite as 2018 S.O.S. 5550
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Government Law
A group of physicians with patients with terminal diseases and an organization that promotes ethical standards in the medical profession both lacked standing to challenge the constitutionality of the End of Life Option Act based on a violation of their patients' rights. Even assuming that a plaintiff would feel some reluctance to diagnose a patient as having a terminal disease because of the possibility the patient may start the assisted suicide process, such "conjectural" and "hypothetical" possibilities do not give rise to standing.

People ex rel. Becerra v. Superior Court (Ahn) - filed Nov. 27, 2018, Fourth District, Div. Two
Cite as 2018 S.O.S. 5557
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Torts
A trier of fact could have reasonably concluded that a defendant acted intentionally by repeatedly punching and kicking the plaintiff. Repeatedly striking a person indicates a desire to cause to harm. Malice requires an intent to injure, not actual injury. The Court of Appeal reviews a finding of malice for substantial evidence, not clear and convincing evidence. A defendant's refusal to comply with discovery excuses the plaintiff's failure to product evidence of the defendant's ability to pay a punitive damage award. The Riverside Superior Court's local rule for resolving a party's objection to the admission of unbound pages from a transcript does not conflict with the Evidence Code.

Morgan v. Davidson - filed Nov. 27, 2018, Fourth District, Div. Two
Cite as 2018 S.O.S. 5577
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