CA Unpub Decisions

Plaintiff Cindy Yeomans appeals the trial court's order setting aside default and vacating default judgment against defendant High Country Villas Management Corporation (High Country). Yeomans also appeals the trial court's order denying her motion for reconsideration.[1] We affirm.

This appeal is the latest episode in the continuing litigation saga pitting Personalized Workout of La Jolla, Inc. (PWL) and Nathan Poole (PWL and Poole, together Appellants) on the one hand against Gary Ravet (Ravet) on the other. The most recent dispute saw Appellants sue Ravet, Ravet's parents, Ravet's ex-girlfriend, three trusts, and Ravet's two children, Stephen and Brandon (together Respondents), for fraudulent transfers. The trial of that matter ended in Appellants' favor with the jury awarding compensatory and punitive damages against multiple defendants.[1] The jury, however, did not find Respondents liable.

On March 9, 2012, Placer County Sheriff’s deputies responded to a report of a verbal dispute at the defendant’s trailer. The victim, defendant’s wife, told the deputies that defendant had been drinking alcohol and abused prescription pain killers. She also said defendant threatened to kill her; he was sitting on the bed, holding a large hunting knife and said if she did not leave the trailer he would kill her with the knife or drown her in a puddle. Scared for her life, the victim left the trailer.
The deputies approached the trailer and yelled for defendant to come outside (the victim warned the deputies there were knives all over the trailer). When defendant did not respond, the deputies pushed open the already opened door and again asked defendant to come outside. This time, defendant said “ ‘fuck you, ’ ” and refused. The deputies received that same response three more times before they entered the trailer, at which point defendant stood up from the bed and said “ ‘get the fuck out of my house.’ ” The deputies advised defendant he was under arrest and he said, “ ‘fuck you.’ ”
The deputies then tried to detain defendant. As they reached for him, defendant doubled up his fists. They grabbed his arm and he pulled away, spinning into the corner of the bed. The deputies told defendant to stop resisting or he would be “tased”; defendant’s only response was, “ ‘fuck you, get out of my house.’ ” After wrestling with defendant, the deputies were able to get him into handcuffs but defendant continued to struggle. Outside of the trailer, they put defendant on the ground. Defendant spat on the deputies, kicked them, and tried to bite them. When they were finally able to gain full control of defendant (using a “TMJ Nerve Stimulant” and figure four leg lock), the deputies put a spit sock over his face.

Marilyn. S., mother of Kristen M. (born September 1996, hereinafter the minor), appeas from the juvenile court’s November 8, 2012 order prohibiting any contact between mother and the minor. On appeal, mother contends the “no-contact” order constitutes impermissible punishment and is not supported by sufficient evidence. We disagree and shall affirm the no-contact order.

Appellant D.H. appeals from the juvenile court’s orders denying him presumed father status and dismissing him from the dependency case involving the minor J.H. (Code Civ. Proc., § 581d; Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1606.) He contends[1] there is insufficient evidence to support the juvenile court’s orders denying him presumed father status pursuant to Family Code section 7611, subdivision (d).[2] We conclude appellant failed to meet his burden of establishing presumed father status. Accordingly, the trial court did not abuse its discretion in denying presumed father status and we affirm the juvenile court’s orders.

Defendant Preston Tyrone Brown pleaded no contest to one count of lewd exposure (Pen. Code, § 314, subd. 1) and admitted a prior strike (Pen. Code, § 667). He committed the offense while incarcerated. In exchange for his plea, three other counts of lewd exposure were dismissed and defendant agreed to a sentence of 16 months (one-third the middle term, doubled for the strike) to run consecutive to the term he was serving when he committed the new offense. The trial court sentenced defendant on February 15, 2012, consistent with the negotiated plea. The time to appeal expired on April 16, 2012. (Cal. Rules of Court, rule 8.308.)
On June 4, 2012, defendant filed a motion to recall the sentence. He claimed that there was an error in sentencing on a prior case (in San Luis Obispo County) amounting to an illegal sentence that the trial court in this case (in Sacramento County) was required to correct because the term in this case was added to the term imposed in that case under Penal Code section 1170. At the hearing on the motion to recall the sentence, the trial court said that, at the time of sentencing in the current case, an issue concerning sentencing had been “put over” because the court and parties did not have all the information from the prior convictions. The trial court denied the motion to recall the sentence, but it stated that the date of the hearing on the motion (June 13, 2012) would be deemed the date of sentencing.
On appeal, defendant contends that the trial court erred by not modifying the sentence on the San Luis Obispo County conviction. We conclude that the appeal must be dismissed because defendant did not file a timely notice of appeal.

A jury found defendant Nolan Ryan Telles guilty of several crimes, and found he had a prior strike (first-degree burglary) and committed certain offenses while on bail. The trial court sentenced defendant to prison for eight years and eight months. Defendant timely appealed.
On appeal, defendant first contends the trial court erred in joining two of his cases and denying his motion to sever certain counts. He further claims prejudicial evidence that he had been in jail was introduced, no substantial evidence supports one count, the trial court erred in denying his motion to strike the strike, and error in the abstract of judgment, a point conceded by the People. We reverse Count 2 for lack of evidence and modify the sentence to account for this reversal.

Defendant Brian Michael Anderson contends the trial court erred when, as part of his plea bargain, it sentenced him to custody in the state prison instead of the county jail under the realignment law. We conclude defendant forfeited and waived this contention by failing to object in the trial court and by expressly agreeing to the terms of the plea bargain. Except to order correction of a criminal conviction assessment, we affirm the judgment.

After defendant Cory Hudson drove down a road, weaving across the double-yellow line, an officer pulled him over. The officer smelled a strong odor of marijuana and found a variety of drugs and drug paraphernalia in the car. An information charged defendant with transportation of marijuana, possession of marijuana for sale, and possession of concentrated cannabis. (Health & Saf. Code, §§ 11360, subd. (a), 11359, 11357, subd. (a).)[1] A jury found defendant guilty of possession of marijuana for sale but not guilty on the other two counts. The trial court sentenced defendant to three years’ probation and 180 days in jail, with 60 days stayed upon successful completion of probation, and ordered defendant to register as a narcotics offender. Defendant appeals, arguing the trial court failed to properly instruct the jury on his medical marijuana defense and challenging the testimony of the prosecution’s expert witness on possession of marijuana for sale. We shall affirm the judgment.

Plaintiffs Jasbir and Parampal Gill own two parcels of agricultural property on which they have planted a vineyard. They access a portion of their property over an unpaved route across property owned by defendant Roger Varwig. This route is shown as a road on old maps. The Gills claim the right to use this route either because it is a dedicated public road or because they have a prescriptive easement. This dispute arose when Varwig obstructed the Gills’ access, first by means of a barbed wire “fence” blocking the unpaved route and then by digging a ditch across it. Jasbir Gill’s truck got stuck in the ditch.
The Gills filed suit against Varwig. The trial court found in their favor, finding a public right of way or a prescriptive easement across Varwig’s property. The court issued an injunction preventing Varwig from interfering with this public right of way or easement and awarded the Gills damages, including damages for emotional distress and punitive damages.
Varwig appeals, contending substantial evidence does not support the finding of either a public right of way or a prescriptive easement, or the damages awarded. The Gills cross-appeal from the order denying their motion for attorney fees.
As we will explain, we modify the judgment. Substantial evidence does not support the trial court’s finding of a public right of way or the award of damages for emotional distress. The damage award for loss of use of the easement must be reduced to exclude the period of time for which there is no evidence of obstruction. In all other respects, we affirm the judgment and the order denying attorney fees.

Defendant and appellant, Michael Anthony Perkins, appeals from the judgment entered following his plea of guilty to selling, transporting or offering to sell cocaine base (Health & Saf. Code, § 11352, subd. (a)) (count 1) and his admission that, because he had suffered prior convictions within the meaning of Penal Code section 1170, subdivision (h)(3), any sentence imposed for his conviction of count 1 would be served in state prison. The trial court sentenced Perkins to four years in prison. We affirm.

Appellant Joanmely M. (mother) appeals from the juvenile court’s order terminating parental rights over her daughters Amari (born November 2006) and Amelia (born July 2009). Mother contends the order must be reversed because the parental exception to terminating parental rights set forth in Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i) applies.[1]
Substantial evidence supports the juvenile court’s finding that no exception to terminating parental rights applied in this case. We therefore affirm the juvenile court’s order.

In this dependency matter, we conclude there is sufficient evidence to support the juvenile court’s orders adjudging six-year-old Theodore F. and two-year-old Sophia F. dependents of the court pursuant to Welfare and Institutions Code section 300, subdivision (b) (failure to protect).[1] But we agree with Jake F. (Father) that the court erred in applying section 361, subdivision (c)(1). We reverse the findings and dispositional order removing the minors from Father’s custody and affirm the jurisdictional and dispositional findings and orders in all other respects. Mother is not a party to this appeal.

Plaintiffs, Richard and Marianne Velzen, have appealed a June 18, 2012 judgment in favor of cross-complainant, Youseff Mikhail Fard. The parties have entered into a stipulation to reverse the default judgment. This has occurred as part of a written settlement. In compliance with Code of Civil Procedure section 128, subdivision (a)(8) we accept the stipulation and so reverse the judgment. Upon remittitur issuance, the trial court is to set aside the judgment and dismiss the action. In order for us to accept the stipulation to reverse the judgment, we must comply with Code of Civil Procedure section 128, subdivision (a)(8) which states in relevant part: “(a) Every court shall have the power to do all of the following: [¶] . . . (8) To amend and control its process and orders so as to make them conform to law and justice. An appellate court shall not reverse or vacate a duly entered judgment upon an agreement or stipulation of the parties unless the court finds both of the following: [¶] (A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal. [¶] (B) The reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement.” Thus, in order for a stipulated reversal to be accepted, an appellate court must find: there is no reasonable possibility that the interests of nonparties or the public will be adversely affected; the reasons for the requested reversal do not outweigh the erosion of public trust resulting from such an action; and the stipulated reversal does not reduce the incentive for pretrial settlement. (Union Bank of California v. Braille Institute of America, Inc. (2001) 92 Cal.App.4th 1324, 1328; In re Rashad H. (2000) 78 Cal.App.4th 376, 380-382.)