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It is possible under the policy of the district attorney that a case of nonsupport might be prosecuted criminally.
If a decision were made to prosecute a nonsupport case as a criminal action the case would be reassigned from the family support division to the criminal division. In such an event a criminal investigator would be assigned to the case.
The essential reasoning of the decision is as follows. Superior Court Cal. The term includes any "investigator" whose "principal duties are to investigate crime and criminal cases County of Butte Cal. Employment in the latter capacity is outside the scope of "county peace officer" status for the apparent reason that the peculiar risks and stresses that attend an investigation in contemplation of a criminal prosecution do not extend to the investigation of civil matters. Section Under this scheme local government employees may be eligible for retirement benefits either as "local miscellaneous members" or as "local safety members.
Local safety members receive superior retirement benefits compared to local miscellaneous members. Enhanced retzqement benefits are derivative of that status. Board of Administration 32 Cal. Their investigations are neither for the purpose of detecting crime nor for the purpose of prosecution of criminal cases. It is inappropriate to call such work investigation of crime when the question whether there has been a crime is immaterial to the endeavor.
Assuming that the policy may lead to an occasional rare prosecution, it cannot be said the "principal duties" of these investigators "are to investigate crime and criminal cases. It claims that this reading does not account for the distinction between "crime and criminal cases.
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PERS reasons that "crime," as defined in Penal Code section 15, includes the offense of willful nonsupport proscribed by Penal Code section It claims that when a child support investigator makes inquiries about nonsupport he or she is in fact investigating behavior of the nonsupporting parent that is a crime, regardless of the policy of the district attorney not to so treat the matter. We note that this reading of the statute turns the "and" into an "or" but assume for the sake of argument that this alchemy could be justified.
Nonetheless, the argument is fanciful at best. To investigate connotes an intentional act measured by the end in view. Thus "to investigate crime and criminal cases" means that the end in view of the investigation is precisely to determine the criminal character of the conduct under review. Here, that is not the case given the district attorney's civil enforcement policy. Moreover, the distinction drawn by PERS presupposes that the district attorney had dual civil and criminal child support enforcement authority at the time the language was enacted. That was not the case.
At the time section That authority came some 14 years later. See Stats. An enactment cannot be read as contemplating a distinction of no substantive [ Cal. Consistent with this conclusion, the only plausible construction is that "to investigate crime and criminal cases" refers to "the detection of crime and the gathering of evidence to be used in the prosecution of criminal cases Board of supervisors 69 Cal. County of Humboldt Cal. See, e. Board of Retirement 36 Cal. PERS asserts that its decision reflects its longstanding interpretation of section The record belies this assertion.
From all that appears the particular point in issue was not resolved until the staff counsel for PERS rendered an opinion in response to the questions arising from this controversy. PERS points to no regulation that it has promulgated. Its position therefore is merely a litigation position of PERS. See Culligan Water Conditioning v. State Bd. That position is grounded upon nothing esoteric. It is nothing but the legal reasoning of staff counsel. Having considered that reasoning we find it clearly unpersuasive for the reasons given. That is all the deference that is warranted under these circumstances.
See California Trout, Inc. State Water Resources Control Bd. Marin County Employees' Retirement Bd. It is incontestable that the pension legislation is subject to liberal construction. Employees' Retirement 32 Cal.ignamant.cl/wp-includes/47/1269-ubicar-un-numero.php
However, the applicability of this canon is predicated upon the assumption that section Pacific Greyhound Lines, 28 Cal. New Guadalupe Mining Co. Francis J. Lewald Coal Co. Italics added. They conclude that the privilege exists here because Dr. Catton "acted" for Hession when he examined him and delivered to his counsel a written report of his findings, but that the exception cannot apply because Dr. Catton did not prescribe for or treat Hession. The Webb case clearly supports this conclusion, but a reexamination of that case compels the conclusion that this ground of the decision must be disapproved.
When the patient himself discloses those ailments by bringing an action in which they are in issue, there is no longer any reason for the privilege.
- County of Sutter v. Board of Administration (1989).
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The patient-litigant exception precludes one who has placed in issue his physical condition from invoking the privilege on the ground that disclosure of his condition would cause him humiliation. He cannot have his cake and eat it too. The view taken in the Webb case defeats the purpose of the statute by seizing upon the phrase "act for the patient" and giving it a meaning that cannot reasonably be attributed to the Legislature. A Missouri statute makes this clear by providing " The California statute embodies the same meaning by using the nouns physician or surgeon in the disjunctive and the verb applicable to each--prescribe or act--likewise in the disjunctive.
Even if "act" were construed as relative to a physician as well as to a surgeon, the privilege could still not be extended to personal-injury litigants that the statute excepts. The statute refers to "information acquired in attending the patient. A physician attends a patient to treat, prescribe for, or act for him to prevent, palliate, or cure an ailment. Hirschberg v. Southern Pac. Crocker Estate Co.
Godfrey, Cal. MacDonald, 18 Cal. The view taken in the Webb case, however, would enable the physician to defeat the purpose of the statute by claiming the privilege even though the patient does not. The plaintiff in that case, the only one who could assert the privilege, did not do so; it was the physician who asserted it.
The Contention That Dr. Petitioner asks him to testify, not by reason of his expertness in a special field, but because of his knowledge of specific facts as to Hession's condition, facts pertinent to an issue to be tried. He is like any other witness with knowledge of such facts; it is immaterial that he discovered them by reason of his special training. In testifying as a witness he would simply be imparting information relevant to the issue, as he would had he been a witness to the accident in which Hession was injured.
Keyes, Cal. Barnes, Cal. Conte, 17 Cal. People, Ill.
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State, 5 Tex. Waukesha County, Wis. Catton can invoke no privilege of his own and there was no physician-patient privilege in this case, we have concluded that Dr. Catton was an intermediate agent for communication between Hession and his attorneys and that Hession may therefore invoke the attorney-client privilege under section , subdivision 2 , of the Code of Civil Procedure.
That subdivision reads: "An attorney, can not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment; nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of his employer, concerning any fact the knowledge of which has been acquired in such capacity.
Satterlee v. Bliss, 36 Cal.
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Superior Court, 28 Cal. Superior Court, 23 Cal. Chadwick Pictures Corp. Shenk, Cal. Sharon, 79 Cal. Shindler, 29 Cal.
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Luby, 67 Cal. Hall, 55 Cal. White, Cal. McKnew v. Superior Court, supra, ; Franzen v. Shenk, supra, ; Sharon v. Sharon, supra, ; Mitchell v. Towne, 31 Cal. Ash, 27 Cal.