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High Court Tackles Foreseeability Issue The California Supreme Court on Wednesday granted review in a case raising important liability issues based on foreseeability. In Wiener v. Southcoast Childcare Centers Inc., S116358, the high court will decide whether the child-care agency and First Baptist Church of Costa Mesa were negligent by having only a 4-foot-high chain link fence between the children’s playground and a busy highway. Two children were killed in 1999 when Steven Abrams deliberately drove his 1967 Cadillac Coupe DeVille through the fence and onto the playground. Santa Ana’s Fourth District Court of Appeal in a 2-1 decision ruled in April that the church and child-care center should have foreseen the possibility of harm. Anticipation of Abrams’ murderous intent didn’t matter, the court held. Justice David Sills dissented, saying there had been no similar incidents that would have made Abrams’ actions foreseeable. “Abrams’ intent, in accelerating after he knocked down the fence,” Sills wrote, “showed that no barrier could have prevented this tragedy except a barrier impervious to a head-on crash from a large automobile accelerating into it.” Five Supreme Court justices voted for review Wednesday. Chief Justice Ronald George and Justice Janice Rogers Brown were absent and didn’t vote. — Mike McKee Ex-Legislator Files Petition Over Recall SACRAMENTO — A former assemblyman who helped write California’s recall code joined with an associate at Heller Ehrman White & McAuliffe on Wednesday to try to ensure that Lt. Gov. Cruz Bustamante becomes governor if Gray Davis is ousted. Barry Keene served in the state Assembly in the 1970s and wrote a constitutional amendment to the recall law. His petition to the state Supreme Court is the second piece of litigation filed this week that claims there should be no candidates on the Oct. 7 recall ballot. If the high court agrees, Bustamante would automatically become governor if more than 50 percent of voters decide to recall Davis. Most recently, Keene served in the Davis administration as director of general services. He was ousted from that job in April 2002, when the governor asked him to resign over a controversial computer contract with Oracle Corp. Keene’s co-plaintiff in the court petition is Andrew Byrnes, who works at Heller Ehrman’s Menlo Park office. The pair is represented by Scott Rafferty, a Mountain View solo who is active in local and state Democratic politics. Rafferty’s petition names Bustamante as defendant, rather than Secretary of State Kevin Shelley. Rafferty admitted that looked a little odd — essentially suing Bustamante in order to make him governor — but said it’s appropriate because the lieutenant governor was the official who called the election. Rafferty said he hopes the court joins his petition with an action filed Monday by Jerome Falk Jr., a partner at Howard, Rice, Nemerovski, Canady, Falk & Rabkin in San Francisco. The Supreme Court set a briefing schedule in Falk’s case that could resolve the matter as early as next week. Both Falk and Rafferty want writs of mandate from the court to keep names off the recall ballot. Like Falk, Rafferty said he wasn’t enlisted by Bustamante or others in the Democratic Party to file his action. Bustamante’s office had no comment Wednesday. Rafferty’s case is Byrnes and Keene v. Bustamante, S117832. — Jeff Chorney Oakland Lawyer is New Court Commissioner Oakland attorney Glenn Oleon is Alameda County Superior Court’s newest commissioner, Presiding Judge Harry Sheppard announced Wednesday. Oleon, 51, was sworn last month and handles juvenile, traffic and landlord-tenant matters in Hayward, where he once practiced. “In a way, my career has come full circle and I’ve returned to my roots,” Oleon said Wednesday. Before he was given a robe, Oleon was a solo who practiced for nearly 27 years in Oakland, Hayward and Castro Valley. He has been active in the Alameda County Bar Association and its Volunteer Legal Services program. Oleon recently received the bar’s Wiley M. Manuel Award for his work for the pro bono group. Oleon is also a past officer and director of the Legal Aid Society of Alameda County. Oleon replaces Commissioner Hilde Olds, who retired in June. — Jahna Berry

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