http://www.fearnotlaw.com Latest articles on Fearnotlaw.com. en-us http://feedvalidator.org/docs/rss2.html Tue, 23 Jun 2009 09:27:22 PDT Copyright 2005, Fearnotlaw.com Appellant was convicted by jury of first degree murder (Pen. Code, 187, subd. (a)),[1]attempted robbery ( 664, 211), and burglary ( 459). The jury found true two special circumstance allegations, that the killing was committed during the commission of the attempted residential robbery, and during the commission of a residential burglary. ( 190.2, subd. (a)(17).) Allegations that a principal was armed during the commission of these offenses,[2] ( 12022, subd. (a)(1)) and that appellant personally used a deadly weapon, a knife ( 12022, subd. (b)(1)), were also found to be true. The court separately found that appellant had suffered a prior serious felony conviction under sections 667, subdivision (a)(1) and 1170.12. Appellant was sentenced to a term of life without possibility of parole, with additional consecutive terms for use of a deadly weapon and for the prior serious felony conviction. He appeals, contending that the testimony of two eyewitnesses, identifying him as one of two assailants, should have been excluded by the trial court, and that he was deprived of due process of law by the admission of such evidence. Court find no error and will affirm. Tue, 23 Jun 2009 09:27:22 PDT http://www.fearnotlaw.com/articles/article28371.html http://www.fearnotlaw.com/articles/article28371.html Plaintiff Ronald Vanderheiden[1] worked as a firefighter for the City of Alameda (City) for more than fourteen years before he was terminated on grounds that he was psychologically unable to work as a member of a firefighting team. He sued under the Fair Employment and Housing Act (FEHA), and alleged discriminatory discharge, failure to accommodate, and failure to engage in an interactive process to identify a reasonable accommodation under Government Code section 12940, subdivisions (a), (m) and (n). Court agree with Vanderheiden that there are genuine issues of fact regarding his psychological health and his ability to perform his job. Court thus reverse. Tue, 23 Jun 2009 09:27:04 PDT http://www.fearnotlaw.com/articles/article28370.html http://www.fearnotlaw.com/articles/article28370.html Pollak, J. A.M. appeals from the dispositional order of the juvenile court in these delinquency proceedings, challenging both the jurisdictional order and the terms of the disposition. He argues that statements he made to police while in custody were not voluntary and were erroneously admitted in evidence, and that the court improperly limited the scope of its review of police officer personnel records under Pitchess v. Superior Court (1984) 11 Cal.3d 531 (Pitchess). Court conclude that the trial court did not err in admitting the statements or in its review of the officers records, but agree with A.M. that the court should not have stated a maximum term of confinement. Court therefore shall remand the case for correction of the record. Tue, 23 Jun 2009 09:26:48 PDT http://www.fearnotlaw.com/articles/article28369.html http://www.fearnotlaw.com/articles/article28369.html Pollak, J.Plaintiffs have moved this court to dismiss the appeal of defendant Jean Marie Gerards from an order dismissing the underlying litigation. Gerards does not object to the dismissal of the action but disputes what she characterizes as an order included in a much earlier ruling of the trial court. The property in dispute in this litigation has been sold and the statement contained in the earlier ruling will have no collateral consequences. Therefore, this appeal is moot and Court shall grant plaintiffs motion and dismiss the appeal. Tue, 23 Jun 2009 09:26:28 PDT http://www.fearnotlaw.com/articles/article28368.html http://www.fearnotlaw.com/articles/article28368.html Pollak, J.Stacy M. Smith appeals from an order removing her as the administrator of the estate of Ervin Smith after DNA testing determined that she was not the decedents biological daughter. She contends the probate court abused its discretion in removing her as the administrator without cause and without a hearing. Court conclude that the court acted within its discretion under Probate Code section 8503 and affirm the order. Tue, 23 Jun 2009 09:26:13 PDT http://www.fearnotlaw.com/articles/article28367.html http://www.fearnotlaw.com/articles/article28367.html Pollak, J.Defendant Felix Camelino Paz was sentenced to three years in prison after pleading no contest to one count of threatening to commit a crime resulting in death or bodily injury and one count of misdemeanor battery. Defendant filed a notice of appeal challenging the validity of his plea, along with a request for certificate of probable cause, which was granted by the trial court. In his request for a certificate of probable cause, defendant states that false and mixed statements were made by the victims and that due to [the] plea bargain, [he] was not able to explain in [his] words what took place at verbal and physical confrontation. He requests the court dismiss or lessen the charges against him due to allegations and severity of supposed criminal act. We appointed counsel to represent defendant on appeal. Appointed counsel on appeal has filed a brief under People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth the facts and procedural history, raising no specific issues, and requesting this court to conduct an independent review of the record. Defendant was offered an opportunity to file a personal supplemental brief, which he failed to do. Court have now concluded our independent review of the record and find no arguable issues. Accordingly, Court affirm. Tue, 23 Jun 2009 09:25:56 PDT http://www.fearnotlaw.com/articles/article28366.html http://www.fearnotlaw.com/articles/article28366.html This appeal is from an order denying a trustees motion to disqualify the attorneys for three trust beneficiaries, on grounds those attorneys were engaged in representation adverse to the trustee, which was conflicting because the attorneys had represented the predecessor trustee in a closely related matter. The trial court denied disqualification on grounds the attorneys had no attorney-client relationship with the present trustee. Because the attorneys have substituted out of their representation of the beneficiaries, the motion to disqualify and the appeal from its denial are moot. Court therefore dismiss the appeal. Tue, 23 Jun 2009 09:25:41 PDT http://www.fearnotlaw.com/articles/article28365.html http://www.fearnotlaw.com/articles/article28365.html This is an appeal from an order of dismissal after the trial court sustained a demurrer without leave to amend in an action challenging the sale of an asset of a limited liability company. We conclude the complaint fails to state a cause of action against the buyer, and that there is no reasonable possibility appellant can amend to state a cause of action. Court affirm the order of dismissal. Tue, 23 Jun 2009 09:25:22 PDT http://www.fearnotlaw.com/articles/article28364.html http://www.fearnotlaw.com/articles/article28364.html This appeal arises from a fraudulent transfer action whose design was to effectuate the collection of a stipulated money judgment entered against a corporate entity in a prior lawsuit. The corporation, then in good standing, is now bereft of assets and defunct. In the current case, the trial court entered a judgment against a principal of the corporation. Court affirm the judgment entered against the principal. Tue, 23 Jun 2009 09:24:20 PDT http://www.fearnotlaw.com/articles/article28363.html http://www.fearnotlaw.com/articles/article28363.html Appellant Robert Smylie (Smylie) appeals from a judgment confirming an arbitration award which resolved a dispute over legal fees and costs incurred in two prior lawsuits. He contends that the court should have stayed the lawsuit filed by respondent law firm, Fagelbaum & Heller, LLP (F&H), until the completion of the nonbinding arbitration Smylie initiated pursuant to the mandatory fee arbitration act (MFAA), Business and Professions Code section 6200 et seq.[1] Smylie also contends that the court should have stayed the contractual arbitration initiated by F&H pursuant to the California Arbitration Act (CAA), Code of Civil Procedure section 1280 et seq. Smylie claims that he did not waive MFAA arbitration, that there was no agreement for CAA arbitration of one matter, and that the agreement to arbitrate another matter was unenforceable. Court reject Smylies contentions and affirm the judgment. Tue, 23 Jun 2009 09:23:58 PDT http://www.fearnotlaw.com/articles/article28362.html http://www.fearnotlaw.com/articles/article28362.html Renee Tennies-Mandel, a beneficiary and the trustee of her deceased grandmothers trust, petitioned the probate court for a determination that, before her death, her grandmother had agreed to transfer her residence, the principal asset of the trust, to her. Patricia Tennies, Renees mother and also a beneficiary, testified in support of her daughters petition. The petition was denied, and other beneficiaries of the trust brought a petition alleging that Renee and Patricia had violated the no contest clause of the trust, and should forfeit their gifts under the trust. The probate court found that Renee had violated the no contest clause, but Patricia had not. Both sides appeal. Court affirm the trial courts order. Tue, 23 Jun 2009 09:23:42 PDT http://www.fearnotlaw.com/articles/article28361.html http://www.fearnotlaw.com/articles/article28361.html After reversing a trial court order under the anti-SLAPP statute, Code of Civil Procedure section 425.16, striking a cause of action, Court also reverse the order awarding attorney fees and costs. Tue, 23 Jun 2009 09:23:24 PDT http://www.fearnotlaw.com/articles/article28360.html http://www.fearnotlaw.com/articles/article28360.html After reversing a trial court order under the anti-SLAPP statute, Code of Civil Procedure section 425.16, striking a cause of action, Court also reverse the order awarding attorney fees and costs. Tue, 23 Jun 2009 09:23:09 PDT http://www.fearnotlaw.com/articles/article28359.html http://www.fearnotlaw.com/articles/article28359.html Peter Bolgar filed suit against a common interest development, its property manager, and insurance agencies which had secured insurance for the common interest development. He appeals from the judgment of dismissal entered after the trial court sustained demurrers to his second amended complaint without leave to amend on the grounds that his complaint was uncertain and failed to state a claim. (Code Civ. Proc., 430.10, subds. (e) & (f).) We conclude that the complaint stated facts to support an individual claim for breach of the developments governing documents and statutory violations against the common interest development. Accordingly, we affirm in part and reverse in part the judgment of dismissal and remand for further proceedings. Tue, 23 Jun 2009 09:22:53 PDT http://www.fearnotlaw.com/articles/article28358.html http://www.fearnotlaw.com/articles/article28358.html The father of minor, E.P., appellant E.M. (father), filed an appeal from the juvenile courts November 18, 2008, order denying his request for a home of parent order and instead requiring him to participate further in family reunification services. On March 30, 2009, however, the juvenile court found father in compliance with his case plan and issued a home of parent order for father. Tue, 23 Jun 2009 09:22:36 PDT http://www.fearnotlaw.com/articles/article28357.html http://www.fearnotlaw.com/articles/article28357.html