CA Unpub Decisions

Plaintiff Vinyl Fence America Company (Vinyl Fence) appeals from the dismissal of its second amended complaint after an order sustaining a demurrer. We reverse the dismissal with respect to three causes of action alleged against defendant Canyon Gate Homeowners Association (HOA), namely, breach of contract, account stated, and open book account. As to these causes of action, Vinyl Fence sufficiently alleged defendant Diane Simon’s actual or ostensible authority to bind the HOA to the alleged contract. We affirm the dismissal with respect to the other two causes of action alleged against the HOA, namely, unjust enrichment and quantum meruit. These causes of action are barred by the statute of limitations. We also affirm the dismissal with respect to the fraud and negligent misrepresentation causes of action alleged against defendants Future Management Services, Inc. (Future Management), and Simon. These causes of action are likewise barred by the statute of limitations.

Nikole Deven sued her employer Dynamic Auto Images (Dynamic), alleging she was the victim of sexual harassment in the workplace. She also asserted that after she complained of the harassment, she was subjected to retaliatory acts including withholding of her wages, termination of her employment, and withholding of additional sums due to her in the wake of termination. She sought damages as well as an award of attorney fees and costs against Dynamic. However, Deven voluntarily dismissed her lawsuit, and Dynamic thereafter moved for an award of attorney fees pursuant to Labor Code section 218.5 (all further undesignated references are to this code), arguing Deven’s lawsuit qualified as an action for unpaid wages on which it had prevailed. The trial court granted that motion but awarded a reduced amount of fees, reasoning that only three of Deven’s six causes of action – breach of contract, retaliation, and wrongful termination in violation of public policy – were grounded on the alleged nonpayment of wages. That fee award was later incorporated into the judgment.

We appointed counsel to represent Edward James Reyes on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client but advised the court no issues were found to argue on his behalf. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the court with its independent review, counsel provided the court with information as to issues that might arguably support an appeal. Counsel provided information on the following three issues: (1) whether Reyes’s convictions were supported by substantial evidence; (2) whether the accomplice testimony was sufficiently corroborated; and (3) whether Reyes was prejudiced by gang expert testimony.
Counsel advised Reyes he may personally file a supplemental brief. Reyes was given 30 days to file a supplemental brief. That time has passed, and he did not file a supplemental brief. We have reviewed the information provided by counsel and we have independently examined the record. We found no arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) The judgment is affirmed.

The trial court dismissed the wife from this case for abandoning it. We find insufficient evidence of abandonment. Taking the record as a whole, she has prosecuted the case vigorously. Since her appeal is premature, we treat it as a petition for a writ of mandate seeking to vacate the order of dismissal, and grant that petition.
II. FACTS
John M. Heurlin and Debra M. Heurlin filed a joint complaint (one document) in this action on September 24, 2010. Each one signed the document individually. The complaint alleged they had taken out a loan on their house in July of 2003 from defendant Citi Mortgage, Inc., et al. (Citi), calling for a mortgage payment of $1,679.91 a month, but Citi later unilaterally increased the payment to $2,288.98 a month. Citi also filed a notice of default, claiming the Heurlins owed it over $10,000 and yet, when the Heurlins tendered the amount claimed, Citi asserted it would take $34,000 to bring the loan current. A foreclosure sale was scheduled for September 29, 2010.

Joe Garay, Jr., appeals from a judgment sentencing him to 15 years to life in prison for second degree murder. He contends his conviction must be reversed due to instructional error, but we disagree. Other than to modify the amount of appellant’s presentence credits, we affirm the judgment against him.

A modification decision.

At a contested jurisdiction hearing, the juvenile court found true an allegation that appellant, Joey V., a minor, committed an assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))[1] and declared the offense a felony. At the subsequent disposition hearing, the court adjudged appellant a ward of the court, placed him under the supervision of the probation officer until May 3, 2014, and ordered him committed to the New Horizons program (New Horizons) for a period not to exceed 365 days.
On appeal, appellant contends (1) the evidence was insufficient to support the instant adjudication, and (2) the court abused its discretion in ordering appellant committed to New Horizons. We affirm.

The court continued appellant, I.M., as a ward of the court (Welf. & Inst. Code, § 602),[1] after he admitted allegations charging him with possession of a concealed dirk or dagger (Pen. Code, § 21310).
On appeal, appellant contends the court erred by ordering him into placement: 1) without an adequate case plan; 2) without considering limiting his mother’s right to make educational decisions for him; and 3) without completing form JV-535. We affirm.

Juan E. is the father of six-year-old James P. who was removed from his care. Father contends that the juvenile court incorrectly determined the date of James’s removal for purposes of calculating the length of reunification services. He further contends that the services were not reasonable. We disagree and affirm.

Defendant T.M. was charged with felony disturbing the peace (Pen. Code,[1] § 415, subd. (3); count 1) and a probation violation (Welf. & Inst. Code, § 777; count 2) in a subsequent petition filed pursuant to Welfare and Institutions Code section 602.[2] Count 1 alleged that defendant acted for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (d). After a contested jurisdictional hearing, the juvenile court found the allegations in the petition to be true. On December 13, 2012, the court continued defendant as a ward and placed her on probation.
On appeal, defendant contends: (1) her statements to a high school vice principal, made in the presence of a police officer, were admitted in violation of Miranda v. Arizona (1966) 384 U.S. 436, 444 (Miranda); (2) her use of the epithet “scrap bitches” was protected speech and did not violate section 415; and (3) insufficient evidence supports the gang enhancement because there is no evidence she acted with the required specific intent. We affirm.

Appellant/defendant Zeferino Zepeda pleaded no contest to possession for sale of cocaine (Health & Saf. Code, § 11351) and admitted a prior strike allegation. He was sentenced to the midterm of eight years. He was arrested when officers executed a search warrant at a residence where Ryan Oneal Sullivan (Sullivan) had sold methamphetamine to an informant. Defendant was not involved in the transaction, and the officers did not know of his existence on the premises. The warrant authorized the officers to search Sullivan, his residence, anyone present who was associated with the property, and any garages, sheds, or outbuildings. The officers entered a detached structure next to the residence because they believed it was an outbuilding authorized by the warrant. They found defendant trying to flush large quantities of methamphetamine down a toilet. The officers later learned defendant was living in the outbuilding.
Defendant filed a motion to quash the search warrant and argued the affidavit filed in support of the warrant failed to set forth probable cause to search the outbuilding because it was his separate residence. Defendant also filed a motion to suppress evidence and argued the officers exceeded the scope of the warrant because it did not authorize the search of his residence. The superior court denied both motions.
On appeal, defendant renews the arguments he made in superior court and argues his motions to quash and suppress should have been granted. We affirm.

Defendant Vernon Lee Turner, Jr., contends that, as a result of the Criminal Justice Realignment Act of 2011, the trial court erred in requiring he serve three years four months in state prison. More particularly, defendant contends his underlying offense allows for its 16-month term to be served in local custody, and although he admitted an enhancement pursuant to Penal Code[1] former section 12022.1 requiring a two-year term in state prison, the underlying felony determines the location where the sentence is to be served. He also contends his position is supported by the Legislature’s subsequent amendment of former section 12022.1, omitting the requirement the two-year term be served expressly in state prison. We will affirm.

David Wayne Lewis, with a blood alcohol content of .22 percent, drove through a red light and collided with a truck. His passenger, Michael Rogers, died at the scene. A jury found Lewis guilty of second degree murder (Pen. Code, § 187, subd. (a))[1] and gross vehicular manslaughter (§ 191.5, subd. (a)).
Lewis argues the trial court abused its discretion when it overruled his objection to evidence (1) that Lewis had suffered three prior convictions for driving while under the influence of alcohol, (2) he had attended courses to regain his driver license, (3) evidence of the topics presented at these courses, and (4) Lewis’s response to topics presented during these courses. Since the charge of second degree murder required the prosecution to prove beyond a reasonable doubt that Lewis acted with implied malice when the accident occurred, the evidence was relevant and admissible. Accordingly, we affirm the judgment.

Appellants Mario Martinez and Fernando Ortiz made a poor choice when they selected their victim in this case. J.H. probably looked like an easy target; a 13-year-old boy riding alone on a scooter in the early evening. Martinez and Ortiz, then ages 20 and 21 respectively, attacked him in the parking lot of a sporting goods store.
J.H. fought back. The men succeeded in robbing the boy of his scooter, but Ortiz had to be taken to the hospital and received five staples to close a serious head wound. J.H. emerged from the incident relatively unscathed.
A jury convicted Martinez and Ortiz of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c))[1] and assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)). Ortiz, who was determined to be the primary instigator, was sentenced to five years in prison. Martinez received a shorter prison sentence of three years. We have consolidated their separately filed appeals.