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  Friday, December 28, 2018  
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LACBA will be closed on Monday, December 31 and Tuesday, January 1, in observance of New Year's Day. Therefore, there will be no LACBA Daily eBriefs on Monday and Tuesday. Publication will resume on Wednesday, January 2 with the opinions of December 31 and January 2 being combined. 
   
 
 
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
Constitutional Law
Montana's restructuring of the formula for calculating the rate at which state-approved agency franchise stores could purchase liquor from the state did not violate the Contracts Clause because the state did not eliminate the stores' remedy for breach of its contract with the state.

LL Liquor, Inc. v. State of Montana - filed Dec. 28, 2018
Cite as 2018 S.O.S. 17-35405
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CALIFORNIA COURT OF APPEAL
Civil Procedure
A trial court abused its discretion in refusing to award the plaintiffs in a successful civil action a recovery of their attorney fees and costs after the date of the defendant's offer to compromise under Code of Civil Procedure Sec. 998. The offer was invalid and the plaintiffs ultimately recovered far more than the estimated value of the offer.

Etcheson v. FCA US LLC - filed Dec. 6, 2018, publication ordered Dec. 27, 2018, Fourth District, Div. One
Cite as 2018 S.O.S. 1
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Civil Procedure
CACI No. 1821 is the standard instruction for the jury to determine damages arising from a statutory misappropriation of likeness claim under Civl Code Sec. 3344. The statutory language of Sec. 3344 is unambiguous--the plaintiff bears the burden of presenting proof of the gross revenue attributable to defendant's unauthorized use of the plaintiff's likeness, and the defendant must then prove its deductible expenses. A trial court did not abuse its discretion in excluding the expert testimony of witnesses whose methodologies contained no science or data. It also was not an abuse of discretion for the court to find neither party prevailed because neither achieved its practical litigation objectives.

Olive v. General Nutrition Centers, Inc. - filed Dec. 27, 2018, Second District, Div. Four
Cite as 2018 S.O.S. 9
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Civil Procedure
Code of Civil Procedure Sec. 341.5 applies to a school district's challenge to the state controller's subvention decisions as the gravamen of the action was a challenge to the constitutional validity of the Government Code sections providing one-time general state funding for school districts.

San Diego Unified School District v. Yee - filed Nov. 30, 2018, publication ordered Dec. 27, 2018, Fourth District, Div. One
Cite as 2018 S.O.S. 19
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Criminal Law and Procedure
Substantial evidence supported the issuance of an instruction of involuntary manslaughter as a lesser-included offense for first degree murder where the defendant admittedly participated in a battery that caused the death of his victim, but he was not subjectively aware his actions could be deadly because he did not know the victim had a spinal injury.

People v. Vasquez - filed Dec. 27, 2018, Second District, Div. Three
Cite as 2018 S.O.S. 27
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Criminal Law and Procedure
A trial court did not abuse its discretion in denying a defendant's request to represent himself on the day of sentencing as untimely in the absence of any issues with counsel's performance and in light of the defendant's manipulative behavior.

People v. Meraz - filed Dec. 27, 2018, Second District, Div. Eight
Cite as 2018 S.O.S. 33
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Criminal Law and Procedure
The retroactivity standard governing federal habeas petitions doesn't govern California habeas petitions. The California Supreme Court's ruling in People v. Sanchez on the admissibility of testimonial, out-of-court statements is not retroactive under the three-factor analysis set out by the California Supreme Court in In re Johnson.

In re Thomas - filed Dec. 27, 2018, Fourth District, Div. Two
Cite as 2018 S.O.S. 39
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