CA Unpub Decisions

We consider together two appeals from judgments in two trial court cases which share a common factual background and involve some of the same parties. The first, No. B227686, is from a 2010 judgment in Lanning v. Kramer, Los Angeles County Superior Court, No. SC099461. The plaintiffs are George Lanning (George L.), his wife Nansee Lanning (Nansee L.), their son Justin Lanning (Justin L.), collectively the Lannings, and The George and Nansee Lanning Revocable Trust, for which the trustees were George L. and Nansee L. The defendants are Andrew Kramer (Andrew K.), his mother Rosalinda Kramer (Rosalinda K.), his son Matthew Kramer (Matthew K.), collectively the Kramers, and his business, West Hollywood Center for Compassionate Healing, Inc. (WHCCH), doing business as The Sunset Shop, Inc.
The second appeal, No. B231249, is from a 2010 judgment in Kramer v. Lanning, Los Angeles County Superior Court, No. SC107434. The plaintiff is Andrew K. The defendants are George L., Nansee L., The Lanning Family Trust, George L. and Nansee L. as trustees, and The George and Nansee Lanning Revocable Trust, George L. and Nansee L. as trustees.

This matter is before us on a motion to dismiss the appeal as untimely. We agree that the notice of appeal was not filed within the time allowed under California Rules of Court, rule 8.104(a)(1)(B),[1] and therefore dismiss the appeal.
The case involves the conservatorship of the person and estate of Esther R. Boyes (Esther). David M. Boyes and Michele Fotinos, both children of Esther, petitioned to be appointed Esther’s conservator. Because the two siblings could not agree on the appropriate care for their mother, the court appointed a “private fiduciary,” Laurie R. Sells, as conservator instead.
On September 27, 2012, Sells filed a motion to have a prefiling order entered against Fotinos as a vexatious litigant under Code of Civil Procedure section 391.[2] Sells further requested that Fotinos be required to post security under section 391.1 before filing any further pleadings. The basis for the motion was that Fotinos had filed seven pleadings and amended pleadings in propria persona in five matters; in each of those matters Fotinos’s objections were overruled and her requested relief was denied.

Appellant pled no contest to one count of sale of a controlled substance, but then failed to keep an appointment with a probation officer and, later, also failed to appear in court for his scheduled sentencing hearing. He was sentenced to a three-year midterm for that conviction plus two one-year terms for prison priors. Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), he appeals and asks this court to determine if there are any “post-plea sentencing” issues deserving of further briefing. We find none and hence affirm both the judgment and the sentence imposed

Plaintiff Joseph Debro has filed a number of lawsuits since the mid-1990’s in which he has alleged that loans made by governmental entities in 1995 to induce the Los Angeles Raiders (Raiders) to return to Oakland from Los Angeles were, in fact, gifts made without any expectation the loaned amounts would be repaid. (See Debro v. Los Angeles Raiders (2001) 92 Cal.App.4th 940, 943-944 (Debro I).) In one earlier case, Debro alleged the Raiders violated the California False Claims Act (Gov. Code, §§ 12650-12655)[1] (the Act) in connection with the 1995 loans by knowingly presenting a false claim to a public entity. (Ibid.) In Debro I, Division Five of this court concluded that Debro’s claim was barred by the applicable statute of limitations. (Debro I, at pp. 955-956.) In this action, Debro again alleges the Raiders violated the Act as a result of their acceptance of the 1995 loans, only now the claim is that the Raiders were the beneficiary of an inadvertent submission of a false claim. The trial court sustained the Raiders’ demurrer to Debro’s complaint without leave to amend, reasoning the action is barred by direct estoppel and the applicable statute of limitations. We affirm the judgment.

Appellant N.B., a minor, appeals from a dispositional order entered after he was found to come within the provisions of Welfare and Institutions Code section 602. He contends on appeal that the juvenile court erred in three, separate ways in its jurisdictional finding, and in the disposition of the case: (1) finding true that appellant committed both second degree robbery and receiving stolen property; (2) imposing two conditions of probation requiring that appellant “[b]e of good citizenship and good conduct,” and that he “be of good behavior and perform well” at school and work; and (3) calculating his predisposition custody credits at 52 days when the total should have been 53 days. We find all three of these claims have merit.
The Attorney General concedes the three errors, contending, however, that appellant is entitled to 70 days of conduct credits, not 53 days. Therefore, we reverse the true finding on the allegation that appellant committed the crime of receiving stolen property, and order it stricken. We also strike the two challenged probation conditions, and order that the dispositional order be modified to reflect an award of 70 days of custody credit.

S.B. (hereafter the minor) appeals from a juvenile court order denying his motion, pursuant to Welfare and Institutions Code section 782,[1] seeking to set aside findings and dismiss a delinquency petition filed against him in 2008. We agree with the minor that the record does not show the juvenile court exercised its discretion when it denied the motion. Accordingly, we reverse the order and remand the matter for further proceedings.

Appellant Bryan C. (Father), the biological father of dependent child Vera M., was incarcerated during most of the mother’s pregnancy and nearly all of the child’s young life. Father reunited with Vera and her mother (Mother) upon his release from prison. He lived with them for about two months before the child was removed from the parents’ custody after she suffered serious scalding injuries while Father was giving her a bath.
At the jurisdictional hearing, the trial court denied Father’s request to participate because he was at that time only an alleged father. Father established his biological paternity after a disposition hearing had been held and order entered. The court denied his subsequent request for presumed father status and his request to reopen the jurisdiction hearing to contest causation of Vera’s injuries. We conclude the denial of presumed father status is supported by substantial evidence and that a rehearing on the jurisdictional allegations was not required. We affirm.

Plaintiffs are the five adult children and mother of the decedent, Patricia Amonoo, who died following cardiac pacemaker surgery in 2008. Plaintiffs sued St. Jude Medical, Inc. (St. Jude), Jeremy Kosel (collectively, defendants), and others involved in the surgery for, among other things, wrongful death as a result of defendants’ negligence. The trial court granted St. Jude’s motion for summary judgment, concluding defendants did not owe Amonoo a duty of care “with respect to the acts or omissions that allegedly caused her injury and death” and that plaintiffs “lack[ed] evidence that any acts or omissions by Kosel breached his duty of care under the circumstances or proximately caused the injury or death.”
Plaintiffs appeal. They contend the court erred by granting summary judgment because: (1) they did not have a sufficient opportunity to conduct discovery to oppose the motion; (2) defendants did not satisfy their initial burden of production; (3) they raised a triable issue of material fact regarding whether defendants negligently undertook a duty to monitor Amonoo during or after the surgery; and (4) the court improperly relied on Kennedy v. Medtronic (Ill. App. 2006) 851 N.E.2d 778 (Kennedy).[1]
We affirm.

In April 2012, the Santa Cruz County Human Services Department (Department) filed a petition alleging the failure of the Mother, S.R., and Father, E.M., to protect and provide support for their daughter, B.M. (now three; the minor), under Welfare and Institutions Code section 300, subdivisions (b) and (g), respectively.[1] In July 2012, the juvenile court sustained the petition, bypassed reunification services for both parents, and set a date for the permanency hearing. Shortly before that hearing, Mother filed a petition under section 388 to change the court’s prior order setting a permanency hearing and to request that reunification services be ordered. In December 2012, the court denied her petition without an evidentiary hearing. Immediately thereafter, the court granted the Department’s petition, (1) finding the minor to be adoptable, (2) concluding that the beneficial parental relationship exception was inapplicable, and (3) ordering that the parental rights for both Mother and Father be terminated.
On appeal, Mother contends that the juvenile court erred in three main respects. First, she argues that because she made a prima facie showing of changed circumstances, the court erred in summarily denying her section 388 petition without affording her a hearing. Second, Mother asserts that the court’s finding that the minor was adoptable was not supported by substantial evidence. Third, she contends that the court erred in concluding that she had not met her burden of establishing the beneficial parental relationship exception to adoption. We reject each of Mother’s appellate claims. Accordingly, we will affirm the order declaring adoption as the permanent plan for the child, B.M., and terminating the parental rights of Mother and Father.

A jury convicted defendant Brett Anthony Passineau of three counts of lewd conduct with a minor under the age of 14. (Pen. Code, § 288, subd. (a). [1] With respect to two counts, the jury found true a “multiple victim” special allegation. (§ 667.61, former subd. (e)(5), see Stats. 1998, ch. 936, § 9.) Defendant was sentenced to 36 years to life in state prison. Following sentencing, the trial court held a restitution hearing. Defendant was ordered to pay a total of $21,982 in restitution for four victims.
On appeal, defendant contends that the trial court abused its discretion in setting the restitution at the amount determined by the California Victim Compensation and Government Claims Board (Board). Specifically, he argues that the court: (1) misapplied the statutory presumption under section 1202.4, subdivision (f)(4)(A); (2) failed to find defendant rebutted the presumption; (3) failed to disclose the Board’s records to defendant; (4) deprived defendant of due process by basing its decision on ex parte evidence; (5) violated the separation of powers doctrine; and (6) abused its discretion by failing to weigh and consider alternative causes of the victims’ therapy. We will affirm the judgment.

Defendant Jacqueline Gabriella Angelo appeals from the trial court’s denial of her motion under Penal Code section 1203.4[1] to set aside her 1998 guilty plea and dismiss the complaint, after she pled guilty to illegally taking or driving a vehicle in exchange for three years of probation, which was revoked twice. The People conceded based on the plain wording of the statute. However, after briefing was completed on this case, this Court filed a published opinion on the very same issue, People v. Johnson (2012) 211 Cal.App.4th 252 (Johnson). In that case we concluded that, based on the legislative intent behind section 1203.4, a defendant who seeks to set aside a guilty plea based on his or her early “discharge” from probation must establish not the mere early termination of probation, but that the probation was terminated because of defendant’s good conduct. Because defendant has not established that her probation was terminated because of her good conduct, we affirm the trial court’s ruling denying her section 1203.4 motion.

Plaintiffs Salma Merritt and David Merritt obtained two loans to purchase their home. After the Merritts were unable to repay the loans, they filed an action against multiple defendants for alleged predatory lending practices. The named defendants are Angelo R. Mozilo, David Sambol, Michael Colyer, Countrywide Home Loans, Inc., and Countrywide Financial Corporation (collectively Countrywide defendants), Kenneth Lewis, and Bank of America Corporation (Bank of America), MERSCORP Holding, Inc. (MERS), First American Title Company (First American), and Johnny Chen.[1] The third amended complaint alleged causes of action for conspiracy to commit the following: fraud (first cause of action); breach of fiduciary duty (second cause of action); unfair business practices (third, fourth, and fifth causes of action); breach of title insurance contract (sixth cause of action); and intentional infliction of emotional distress (seventh cause of action). The trial court overruled Countrywide defendants’ demurrer to four causes of action and sustained their demurrer without leave to amend to three causes of action. The trial court also sustained the demurrers of First American, MERS, Lewis, and Bank of America without leave to amend to all causes of action.
On appeal, the Merritts contend that the trial court erred: (1) by failing to apply the elements of conspiracy law; (2) by refusing the proffered amendment to the third amended complaint and by failing to grant leave to amend; (3) by sustaining the demurrers to the conspiracy to commit breach of fiduciary duty, conspiracy to commit breach of title insurance contract, and conspiracy to inflict emotional distress causes of action as to Lewis, Bank of America, MERS and First American; and (4) by sustaining certain causes of action as to Countrywide defendants.
We conclude that this court lacks jurisdiction to consider the appeal as to Countrywide defendants and that the trial court did not err when it sustained the demurrers of First American and MERS. We also conclude that the trial court erred in sustaining the demurrers of Bank of America and Lewis. Accordingly, the judgments in favor of First American and MERS are affirmed and the judgments in favor of Bank of America and Lewis are reversed.

Juan C. (father) seeks extraordinary writ relief from an order terminating reunification services for his son M.C. (born July 2011) and setting a selection and implementation hearing under Welfare and Institutions Code section 366.26 (all statutory references are to this code) hearing for September 20, 2013. (Cal. Rules of Court, rule 8.450.) Father contends there is insufficient evidence to support the juvenile court’s finding that returning M.C. to father’s physical custody would create a substantial risk of detriment to his physical or emotional well-being. Father also challenges the sufficiency of the evidence to support the court’s conclusion father was offered or received reasonable reunification services. Finding no error, we deny the petition.

B.H. appeals after the juvenile court sustained two juvenile dependency petitions filed by the Orange County Social Services Agency (SSA) as to now 11‑month‑old A.H. The court found that B.H. was A.H.’s presumed father. In his appellate briefs, B.H. argues the juvenile court’s jurisdictional orders were unsupported by substantial evidence.
In August 2013, SSA filed a request for judicial notice of juvenile court records showing that since the commencement of this appeal, court‑ordered testing confirmed that B.H. is not A.H.’s biological father and the court has granted B.H.’s requests, inter alia, that all allegations pertaining to B.H. be stricken from the sustained petitions and that he be excluded from further participation in this dependency matter. SSA filed a motion to dismiss the appeal on the ground of mootness. B.H. has not filed any opposition to SSA’s request for judicial notice or motion to dismiss.
For the reasons we will explain, subsequent events have rendered B.H.’s appeal moot; accordingly, we dismiss this appeal.