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  Tuesday, December 18, 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.
CALIFORNIA COURT OF APPEAL
Civil Procedure
An order awarding costs is appealable when it is made after a voluntary dismissal without prejudice. An order denying a motion to vacate ordinarily is not appealable on grounds that could have been raised in an appeal from the underlying order, but an appeal can be taken when the underlying order is void.

Gassner v. Stasa (Law Offices of Marc E. Grossman) - filed Dec. 17, 2018, Fourth District, Div. Two
Cite as 2018 S.O.S. 5998
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Civil Procedure
A party's rehashing of her trial court arguments on appeal, without acknowledgement and discussion of subsequent events and developments, is grounds to deny her challenge. There is no authority requiring a party seeking to compel arbitration to provide the original signed arbitration agreement as opposed to a copy. Participation in litigation, by itself, does not result in waiver of a party's right to compel arbitration. While an arbitrator's failure to disclose properly a ground for disqualification generally mandates vacation of the award, this rule only applies if the party moving to vacate had no reason to know of the existence of a nondisclosed matter. A party forfeits her challenge to an arbitrator's untimely disclosures by not objecting to them until after the award issues.

Cox v. Bonni - filed Dec. 17, 2018, Second District, Div. One
Cite as 2018 S.O.S. 6002
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Criminal Law and Procedure
The amended version of Penal Code Sec. 12022.53(h) does not apply to a person committed to a state hospital after being found not guilty by reason of insanity. Denying an insanity acquittee the ability to have a firearm enhancement under Sec. 12022.53(d) dismissed based on a trial court's exercise of discretion under sec. 12022.53(h) does not violate the equal protection clause of the state and federal constitutions.

People v. K.P. - filed Dec. 17, 2018, Fourth District, Div. One
Cite as 2018 S.O.S. 6011
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Criminal Law and Procedure
The fact that a minor received a fitness hearing before his case was transferred to adult court does not preclude him from receiving a new transfer hearing after the passage of Proposition 57.

People v. Garcia - filed Dec. 17, 2018, Second District, Div. Six
Cite as 2018 S.O.S. 6015
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Environmental Law
Lay opinions can provide substantial evidence to support a fair argument that a project may have a significant aesthetic impact on the environment, triggering the need to prepare an environmental impact report pursuant to the California Environmental Quality Act. A planning or zoning finding conducted outside the requirements of CEQA does not provide a substitute for CEQA review. While a planning or zoning decision may be entitled to greater deference than a mitigated negative declaration, such a determination is no more than it purports to be and is not a CEQA determination.

Georgetown Preservation Society v. County of El Dorado (Simoncre Abbie) - filed Dec. 17, 2018, Third District
Cite as 2018 S.O.S. 6020
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Family Law
A petition for writ of habeas corpus may be filed in dependency cases to assert claims of wrongful withholding of custody of the child, including lack of jurisdiction, and claims of ineffective assistance of counsel. A petition should not be used in dependency cases to challenge a dependent child's placement.

In re Cody R. - filed Dec. 17, 2018, Fourth District, Div. One
Cite as 2018 S.O.S. 6027
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Real Property
A judge's failure to disclose campaign contributions made by defendants' counsel did not disqualify him from presiding over the trial where no lawyer contributed more than $1,500 to the campaign. The cultivation of a vineyard on a property for the purpose of making wine that would be sold to the public did not constitute a "business or commercial activity" within the meaning of a homeowners' association's covenants, conditions, and restrictions since the wine was made, bottled, and sold commercially offsite, and the activity at the vineyard did not affect the residential character of the community. Interpretation of CC&R's is a legal question to be decided by the courts, and a homeowners' association's interpretation is not entitled to deference.

Eith v. Ketelhut - filed Dec. 17, 2018, Second District, Div. Six
Cite as 2018 S.O.S. 6033
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Torts
Cell-phone manufacturers do not have a duty to design cell phones in a manner that applications cannot be accessed while users are driving.

Modisette v. Apple Inc. - filed Dec. 14, 2018, Sixth District
Cite as 2018 S.O.S. 6041
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Modification
David L. v. Superior Court - filed Dec. 17, 2018, Fourth District, Div. One
Cite as 2018 S.O.S. 6049
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Modification
People v. Caldwell - filed Dec. 17, 2018, First District, Div. Three
Cite as 2018 S.O.S. 6050
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The full text of case rulings are in PDF files and require Adobe’s free Acrobat Reader to view. To download a copy go to: www.adobe.com//products/acrobat/readstep.html
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