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Code
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Effective
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ParaReg Text
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1000-1
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Unless expressly made
irrevocable by the instrument creating the trust, every trust shall be
revocable by the trustor by a writing filed with
the trustee, as long as the trust was created by a California domiciliary, was
executed in this state, or is governed by California law. (Probate Code
§15400)
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1000-2
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The existence and
terms of an oral trust of personal property may be established only by clear
and convincing evidence. The oral declaration of the settlor,
standing alone, is not sufficient evidence of the creation of a trust of
personal property. (Probate Code §15207)
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1000-3
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Custodial property is
created and a transfer is made when money is paid or delivered or a security
held in a nominee's name is transferred to a broker or financial institution
for credit to an account in the name of the transferor, an adult other than
the transferor, or a trust company, followed in substance by the words
"as custodian for ____________ (Name of Minor) under the California
Uniform Transfers to Minor Act." Such a transfer is irrevocable and the
custodial property is indefeasibly vested in the minor but the custodian has
all the rights, power, duties, and authority provided in the Probate Code.
(Probate Code §§3909(a)(2), 3911(b))
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1000-3A
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A custodian under the
California Uniform Transfers to Minor Act may deliver or pay to the minor or
expend for the minor's benefit as much of the custodial property as the
custodian considers advisable for the use and benefit of the minor. No court
order is required to effect such payments. The payments may be made without
regard to (1) the duty or ability of the custodian personally, or of any
other person, to support the minor or (2) any other income or property of the
minor which may be available for that purpose. (Probate Code §3914(a))
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1000-4
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A resulting trust
arises from a transfer of property under circumstances showing that the
transferee was not intended to take the beneficial interest. It has been
termed an "intention-enforcing" trust. The resulting trust carries
out the inferred intent of the parties, the constructive trust defeats or
prevents the wrongful act of one of them. A resulting trust differs from an
express trust chiefly in that (1) it arises by operation of law, without an
expressed intent, and (2) the resulting trustee ordinarily has no duty other
than to transfer the property to the person entitled. The statute of frauds
is not a bar to the use of parol evidence to
establish a resulting trust. Where the grantee is the wife, child or other natural
object of the affections of the claimant, a contrary presumption arises of a
gift or advancement. This presumption is rebuttable.
(Witkin, Summary of California Law, Eighth Edition,
Volume 7, at p. 5481, 5487)
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1000-5
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In the case of a Totten trust,
the beneficiary has no rights to the sums on deposit during the lifetime of
any party unless there is clear and convincing evidence of a different
intent. If there is an irrevocable trust, the account belongs to the
beneficiary. (Probate Code §5301(c)) In Estate
of Wilson (1986) 183 Cal.App.3d
67, 227 Cal.Rptr. 794, the following is set forth:
"The Totten
trust basically allows a decedent to make a testamentary disposition of cash
assets without going through the formalities of drawing up a will. Under a rule
established in the New York case of Matter
of Totten, [179 N.Y. 112, 71 N.E. 748], if a
depositor merely opens a bank account in his own name as trustee for another
person, intending to reserve the power to withdraw funds during his lifetime,
a tentative trust is created, revocable during the trustor's
lifetime or by his will, and at his death presumptively an absolute trust.
Partial revocation takes place whenever the depositor withdraws money from
the account, and the beneficiary is entitled only to the balance on deposit
at death. But if the beneficiary dies first, the tentative trust is
terminated. (7 Witkin, Summary of Cal.Law (8th ed. 1974) Trusts, S 17, p. 5379, emphasis in
original.) California has recognized the
legitimacy of Totten
trusts for a long time (Kosloskye v. Cis (1945)
70 Cal.App.2d 174, P.2d 565; Estate of
Collins (1978) 84 Cal.App.3d 928, 932, 149 Cal.Rptr.
65, stating the Totten
trust doctrine "is accepted law in this state"), and recently the
Legislature authorized this form of testamentary disposition by enacting the
Multiple-Party Accounts Law. (Prob. Code, S 5100 et seq.)" See Estate of Wilson, 227
Cal.Rptr. at 796.
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1000-6
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One who wrongfully
detains a thing is an involuntary trustee thereof, for the benefit of the
owner. (Civil Code §2223) One who gains a thing by fraud, accident, mistake,
undue influence, the violation of a trust, or other wrongful act, unless he
or she has some other and better right thereto, is an involuntary trustee of
the thing gained, for the benefit of the person who would otherwise have had
it. (Civil Code §2224)
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1001-1
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The earnings and accumulations of a spouse and the
minor children living with, or in the custody of, the spouse, while living
separate and apart from the other spouse, are the separate property of the
spouse. (Family Code §771)
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1001-2
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In the division of the
community estate under this division, unless a party has made a written
waiver of the right to reimbursement or signed a writing that has the effect
of a waiver, the party shall be reimbursed for the party's contributions to
the acquisition of the property to the extent the party traces the
contributions to a separate property source. The amount reimbursed shall be
without interest or adjustment for change in monetary values and shall not
exceed the net value of the property at the time of the division. As used in
this section, "contributions to the acquisition of the property"
include downpayments, payments for improvements,
and payments that reduce the principal of a loan used to finance the purchase
or improvement of the property but do not include payments of interest on the
loan or payments made for maintenance, insurance, or taxation of the
property. (Family Code §2640)
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1001-3
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All property of a
married person, owned by the person before marriage, and that acquired
afterwards by gift, bequest, devise or descent, with the rents, issues, and
profits of the property described in this section, is separate property.
(Family Code §770)
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1001-4
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"An estate in
real property, other than an estate at will or for a term not exceeding one
year, can be transferred only by operation of law, or by an instrument in
writing, subscribed by the party disposing of the same, or by his agent
thereunto authorized by writing." (Civil Code §1091)
Witkin, Summary of
California Law, Ninth Edition, Volume 4, discusses real property. At page
354, §140 states that the requisites of a deed are: 1. A grantor 2. A grantee
3. A writing and subscription 4. Delivery 5. Acceptance. A recordation is not
necessary; its effect is to give constructive notice and to determine
priorities. Witkin, at p. 379, §170 adds: "A deed takes effect only when delivered....
Delivery depends upon the intention that title shall pass irrevocably.... It
is a question of fact and evidence of the circumstances and of the acts and
declarations of the grantor may be offered on the issue." Witkin continues. "If the grant is beneficial and
the grantee has knowledge of it, acceptance will be presumed." (Witkin, p. 400, §194)
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1001-4A
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An estate in real
property (other than an estate at will, or for a
term not exceeding one year) can be transferred only by operation of law, or
by an instrument in writing, signed by the grantor or the grantor's duly
authorized agent. (Civil Code §§1091 and 1624(a)(3) and (4))
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1001-5
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A transfer of property
may be made without writing, unless there is a statute which requires a writing. (Civil Code (Civ. C.)
§1052)
A transfer in writing
is called a grant, or conveyance or bill of sale. (Civ.
C. §1053) A grant takes effect only when it is delivered to the grantee. (Civ. C. §1054) A grant duly executed is presumed to have
been delivered as of the date on the grant. (Civ.
C. §1055)
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1001-7
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Under California Law,
the ownership of property is the right of one or more persons to possess and
use that property to the exclusion of others. (Civil Code (Civ. C.) §654)
The person's ownership
of property is absolute when that person has absolute dominion over the
property, and may use it or dispose of it as he or she wishes. (Civ. C. §679)
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1001-8
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Under California law, a gift is a
voluntary transfer of personal property, for which the donor receives no
"consideration". (Civil Code (Civ. C.)
§1146)
"Consideration"
is a benefit given directly, or agreed to be given, to one person by another
when there is no legal obligation to do so. Consideration may also exist when
one person agrees not to pursue an action, or claim, or a right, against
another person against whom that course of action could otherwise be pursued.
(Civ. C. §1605)
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1100-1
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A letter correctly
addressed and properly mailed is presumed received in the normal course of
the mail. (Evidence Code §641)
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1100-2
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If weaker and less
satisfactory evidence is offered when it was within the power of the party to
produce stronger and more satisfactory evidence, the evidence offered should
be viewed with distrust. (Evidence Code §412)
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1100-3
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The genuineness of
handwriting, or lack thereof, may be proved by a comparison made by the trier of fact with handwriting (a) which the court finds
was admitted or treated as genuine by the party against whom the evidence is
offered or (b) otherwise proved to be genuine to the satisfaction of the
court. (Evidence Code §1417)
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1100-4
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An inference is a
deduction of fact that may logically and reasonably be drawn from another
fact or, group of facts found or otherwise established in the action.
(Evidence Code §600(b)) An inference does not follow from the nonexistence of
a fact. It cannot be based on speculation, supposition, conjecture or
guesswork. (See, e.g., Traxler v.
Thompson (1970), 4 Cal. App. 3d 278, 84 Cal.Rptr.
211)
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1100-5A
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In 1999, the
"Best Evidence" rule was replaced by the "Secondary Evidence
of Writings" Rule. Portions of that rule are set forth below:
The content of a writing may be proved by an otherwise admissible
original. (Evidence Code (Ev. C.) §1520) The
content of a writing may be proved by otherwise admissible secondary
evidence. The court shall exclude secondary evidence of the content of
writing if the court determines either of the following:
(1) A genuine dispute exists concerning
material terms of the writing and justice requires the exclusion.
(2) Admission of the secondary evidence
would be unfair.
(Ev.
C. §1521(a))
Nothing in this
section makes admissible oral testimony to prove the content of a writing if
the testimony is inadmissible under §1523 (oral testimony of the content of a
writing). (Ev. C. §1521(b))
Nothing in this
section excuses compliance with §1401 (authentication). (Ev.
C. §1521(c))
This section shall be
known as the "Secondary Evidence Rule." (Ev.
C. §1524(d))
Except as otherwise
provided by statute, oral testimony is not admissible to prove the content of
a writing. (Ev. C.
§1523(a))
A purported copy of a
writing in the custody of a public entity, or of an entry in such a writing,
is prima facie evidence of the existence and content of such writing or entry
if:
(1) The copy purports to be published by
the authority of the nation or state, or public entity in which the writing
is kept.
(2) The office in which the writing is
kept is within the United States or within the Panama Canal Zone, the Trust
Territory of the Pacific Islands, or the Ryukyu Islands, and the copy is
attested or certified as a correct copy of the writing or entry by a public
employee, or a deputy of a public employee, having the legal custody of the
writing.
(Ev.
C. §1530(a); §1530(a)(3) deals with writings kept outside the United States)
A nonerasable
optical image reproduction provided that additions, deletions, or changes to
the original document are not permitted by the technology, a photostatic, microfilm, microcard,
miniature photographic, or other photographic copy or reproduction, or an
enlargement thereof, of a writing is as admissible as the writing itself if
the copy or reproduction was made and preserved as a part of the records of a
business (as defined by Ev. C. §1270) in the
regular course of that business. (Ev. C. §1550)
(The Secondary
Evidence Rule is discussed in more detail in Witkin,
California Evidence, 4th Edition, 2000, Vol. 2, §27 et seq.)
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1100-6
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Direct evidence is
evidence that directly proves a fact, without an inference or presumption,
and which in itself, if true, conclusively establishes the fact. (Evidence
Code (Ev. C.) §410) Except where additional
evidence is required by statute, the direct evidence of one witness who is
entitled to full credit is sufficient for proof of any fact. (Ev. C. §411)
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1100-7
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The Evidence Code (Evid. Code) deals with general rules as to the determination
of credibility of witnesses. The rule provides as follows: "Except as
otherwise provided by statute, the court or jury may consider in determining
the credibility of a witness any matter that has any tendency in reason to
prove or disprove the truthfulness of his testimony at the hearing, including
but not limited to any of the following:
"(a) His demeanor while testifying and the
manner in which he testifies.
"(b) The character of his testimony.
"(c) The extent of his capacity to perceive,
to recollect, or to communicate any matter about which he testifies.
"(d) The extent of his opportunity to
perceive any matter about which he testifies.
"(e) His character for honesty or veracity or
their opposites.
"(f) The existence or nonexistence of a bias,
interest, or other motive.
"(g) A statement previously made by him that
is consistent with his testimony at the hearing.
"(h) A statement made by him that is
inconsistent with any part of his testimony at the hearing.
"(i) The existence or nonexistence of any fact testified to by
him.
"(j) His attitude toward the action in
which he testifies or toward the giving of testimony.
"(k) His admission of untruthfulness."
(Evid.
Code §780)
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1100-8
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In determining what
inferences to draw from the evidence or facts in the case against a party,
the trier of fact may consider, among other things,
the party's failure to explain or to deny by his testimony such evidence or
facts in the case against him, or his willful suppression of evidence
relating to those facts. (Evidence Code §413)
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1100-9
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"Hearsay
evidence" is evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove the
truth of the matter stated. (Evidence Code §1200(a))
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1100-10
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Evidence of a
statement is not made inadmissible by the hearsay rule when offered against
the declarant in an action to which he is a party
in either his individual or representative capacity, regardless of whether
the statement was made in his individual or representative capacity.
(Evidence Code §1220)
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1100-11
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Evidence of a
statement offered against a party is not made inadmissible by the hearsay
rule if the statement is one of which the party, with knowledge of the
content thereof, has by words of other conduct manifested his adoption or his
belief in its truth. (Evidence Code §1221)
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1100-12
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Evidence of a
statement by a declarant having sufficient
knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement,
when made, was so far contrary to the declarant's
pecuniary or proprietary interest, or so far subjected him to the risk of
civil or criminal liability, or so far tended to render invalid a claim by
him against another, or created such a risk of making him an object of
hatred, ridicule, or social disgrace in the community, that a reasonable man
in his position would not have made the statement unless he believed it to be
true. (Evidence Code §1230)
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1100-13
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Evidence of a writing
made as a record of an act, condition, or event is not made inadmissible by
the hearsay rule when offered to prove the act, condition, or event if:
(a) The writing was made in the regular
course of a business;
(b) The writing was made at or near the
time of the act, condition, or event;
(c) The custodian or other qualified
witness testifies to its identity and the mode of its preparation; and
(d) The sources of information and method
and time of preparation were such as to indicate its trustworthiness.
(Evidence Code §1271)
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1100-14
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Evidence of the
absence from the records of a business of a record of an asserted act,
condition, or event is not made inadmissible by the hearsay rule when offered
to prove the nonoccurrence of the act or event, or the nonexistence of the
condition, if:
(a) It was the regular course of that
business to make records of all such acts, conditions, or events at or near
the time of the act, condition, or event and to preserve them; and
(b) The sources of information and method and
time of preparation of the records of that business were such that the
absence of a record of an act, condition, or event is a trustworthy
indication that the act or event did not occur or the condition did not
exist.
(Evidence Code §1272)
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1100-15
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Evidence of a writing
made as a record of an act, condition, or event is not made inadmissible by
the hearsay rule when offered in any civil proceeding to prove the act,
condition, or event if all of the following applies:
(a) The writing was made by and within the
scope of duty of a public employee.
(b) The writing was made at or near the
time of the act, condition, or event.
(c) The sources of information and method
and time of preparation were such as to indicate its trustworthiness.
(Evidence Code §1280)
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1101-1
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In administrative
tribunals, the party asserting the affirmative of the issue generally has the
burden of proof. (Cornell v. Reilly (1954) 127 Cal.App.2d 178, 273
P.2d 572; and California Administrative Agency Practice, California Continuing
Education of the Bar (1970) p.183)
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1101-2
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The burden of
producing evidence is the obligation of a party to produce evidence
sufficient to avoid a ruling against him on the issue. (Evidence Code (Evid. Code) §110) The burden of producing evidence as to
a particular fact is initially on the party with the burden of proof as to
that fact. (Evid. Code §550)
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1101-3
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The burden of proof is
the obligation of a party to establish by evidence a requisite degree of
belief concerning a fact in the mind of the trier
of fact or the court. Except as otherwise provided by law, the burden of
proof requires proof by a preponderance of the evidence. (Evidence Code §115)
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1101-4
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The county has the
burden of going forward in the state hearing to support its determination.
(§22-073.36)
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1102-1
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A person entirely
without understanding has no power to make a contract of any kind, but the
person is liable for the reasonable value of things furnished to the person
necessary for the support of the person or the person's family. (Civil Code
§38)
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1102-2
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A "contract"
is an agreement to do or not do a certain thing. (Civil Code (Civ. C.) §1549)
In order for a valid
contract to exist, there must be:
(1) Parties who are capable of entering
into a contract.
(2) The consent of the parties.
(3) A lawful object about which the
parties can contract.
(4) A sufficient consideration or cause
for the contractual agreement.
(Civ.
C. §1550)
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1103-1
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In construing a
statute, it will be presumed that every word, phrase and provision was
intended to have a meaning and perform some useful office, and a construction
implying that words were used in vain, or that they are surplusage,
will be avoided. (See Woodmansee v.
Lowery (1959) 167 Cal. App. 2d 645)
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1103-2
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In the construction of
a statute, the judicial function is not to insert what has been omitted or to
omit what has been inserted. Where there are several provisions, the goal of
the courts is to achieve harmony between conflicting laws and avoid an
interpretation which would require that one statute be ignored. However, when
this is not possible, effect should be given to the more recently enacted
law, and a specific statute relating to a particular subject will govern over
a general one. (Larson v. California State Personnel Bd. (1994)
33 Cal. Rptr. 2d 412)
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1103-3
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The United States
Supreme Court has offered the following guidance in determining how to
understand the meaning of a statute:
In Kaiser
Aluminum & Chemical Corp. v. Bonjorno (1990) 494 U.S. 827, 835, the court
held: "The starting point for interpretation of a statute 'is the
language of the statute itself. Absent a clearly expressed legislative
intention to the contrary, that language must ordinarily be regarded as
conclusive.'" The Court has stated that "the statutory language
controls its construction" (Ford
Motor Credit Co. v. Cenance (1981) 452 U.S. 155, 158, fn. 3) and
"[t]here is, of course, no more persuasive evidence of the purpose of a
statute than the words by which the [L]egislature
undertook to give expression to its wishes." (Griffin v. Oceanic
Contractors, Inc. (1982) 458 U.S. 564, 571.) In interpreting a statute,
the Court has said: "'In expounding a statute, we must not be guided by
a single sentence or member of a sentence, but look to the provisions of the
whole law, and to its object and policy.' [Citations.] Our objective in a
case such as this is to ascertain the congressional intent and give effect to
the legislative will.'" (Philbrook v. Glodgett
(1975) 421 U.S. 707, 713.) The Court has also stated, "We do not,
however, construe statutory phrases in isolation; we read statutes as a
whole." (United States v. Morton (1984) 467 U.S. 822, 828, fn.
omitted.) It has emphasized the importance of avoiding: "absurd
results" (United States v. Turkette
(1981) 452 U.S. 576, 580); "an odd result" (Public Citizen v.
Department of Justice (1989) 491 U.S. 440, 454); or "unreasonable
results" whenever possible. (American
Tobacco Co. v. Patterson (1982)
456 U.S. 63, 71.)
Moreover, the Court
has noted, "Judicial perception that a particular result would be
unreasonable may enter into the construction of ambiguous provisions, but
cannot justify disregard of what Congress has plainly and intentionally
provided." (Commissioner v. Asphalt Products Co., Inc. (1987) 482
U.S. 117, 121.) In Griffin, supra, 458 U.S. at page 571, the
court stated: "Nevertheless, in rare cases the literal application of a
statute will produce a result demonstrably at odds with the intentions of its
drafters, and those intentions must be controlling.... [Citations.]"
When a statute is unambiguous, its language cannot "be expanded or
contracted by the statements of individual legislators or committees during
the course of the [legislative] process. (West
Virginia Univ. Hospitals, Inc. v. Casey (1991) 499 U.S. 83,
98-99)."
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1103-4
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The California Court
of Appeal reviewed case law involving the retroactive effect of changes in
law in Rosasco v.
Commission on Judicial Performance. The court stated:
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