CA Unpub Decisions

M.F., mother of A. and Brandon, appeals from the dispositional order of the juvenile court that removed the children from her custody. (Welf. & Inst. Code, § 361, subd. (c).)[1] As the evidence amply supports the removal order, we affirm.

Plaintiff Jason Dorn appeals from a judgment dismissing his action against defendants America’s Wholesale Lender, Countrywide Bank, Bank of America Home Loan Services, MERS, and ReconTrust.[1] Because we conclude that the trial court did not abuse its discretion in dismissing the action, we affirm.

Southern California Edison Company (SCE) appeals from an order denying its petition to compel arbitration of a dispute with Helo Energy, LLC, Sand Canyon of Tehachapi, LLC and Saugatuck Energy, LLC (collectively the Helo parties). The trial court acknowledged the Helo parties’ claims against SCE were covered by a valid agreement to arbitrate, but denied SCE’s petition under Code of Civil Procedure section 1281.2, subdivision (c),[1] on the ground those claims arose out of the same transaction or series of related transactions as the Helo parties’ nonarbitrable claims against third parties and enforcing the arbitration agreement would create a possibility of conflicting rulings. SCE contends the court erred in denying arbitration under section 1281.2, subdivision (c), because the statutory prerequisites for application of that statute had not been met: There was no litigation involving parties who were not subject to the arbitration agreement and, even if there was, there was no possibility of conflicting rulings. Alternatively, SCE contends the court abused its discretion in denying its request to stay the arbitration pending a resolution of the third party litigation. Although we agree with the trial court that the statutory prerequisites to applying section 1281.2, subdivision (c), were satisfied, we reverse the order denying arbitration. Where, as here, the potential for conflicting rulings is remote and entirely theoretical and can be eliminated by other means short of denying arbitration, it is an abuse of discretion to deny arbitration entirely.

Father, Daniel O. (Daniel), appeals from a dependency court order sustaining dependency jurisdiction over his three minor children: (1) Heaven O., age 14, whose mother is Wendy Y.; (2) Mariah, age four, whose mother is Ashley G.; and (3) Daniel O., III (Danny), six months of age, whose mother is Tina L. Jurisdiction was sought over these children largely based on allegations that Daniel physically and sexually assaulted Aileen C., the four-year-old daughter of one of his female companions, Virginia M. Daniel asserts that the dependency court erred in admitting the out-of-court statements of Aileen C. regarding the abuse, when Aileen was found not competent to testify at trial and thus could not be cross-examined. He further asserts that substantial evidence did not support the findings that he assaulted Aileen, or that his three children were at serious risk of physical or sexual abuse. We affirm the order sustaining jurisdiction.

Defendant Rasheen Germain Arterberry appeals from the judgment entered following his conviction by jury of second degree robbery and being a felon in possession of a firearm. (Pen. Code, §§ 211, 12021, subd. (a)(1).)[1] The jury also found that during the commission of the robbery, defendant personally used a firearm and a principal was armed with a firearm. (§§ 12022.53, subd. (b), 12022, subd. (a)(1).) He alleges sentencing error and asks this court to conduct an independent review of the in camera hearing conducted pursuant to his Pitchess motion.[2]

Plaintiff Steven G. Scott appeals from a judgment in favor of defendant West Air, Inc. entered after a jury trial in this action for wrongful termination and breach of employment contract. He also appeals from a postjudgment order denying his motion for judgment notwithstanding the verdict. On appeal Scott claims instructional error and challenges the sufficiency of the evidence to support the jury’s verdict. We affirm.

Plaintiff William Nehme brought this action for fraud, rescission, and other claims after he lost his home through foreclosure. He appeals a judgment entered in favor of defendants Bank of America, N.A. as successor by merger to BAC Home Loans Servicing, LP; Recon Trust Company, N.A.; Landsafe Title of California, Inc. erroneously named as Landsafe Title Corporation; Mortgage Electronic Registration Systems, Inc.; and MERSCORP, Inc., after the trial court sustained defendants’ demurrer without leave to amend. We affirm.

Defendant Andrew James Gonzales appeals from a judgment of conviction entered after a jury found him guilty of two counts of carjacking (Pen. Code, § 215, subd. (a)) and found true the allegations he personally used a firearm in the commission of the crimes (id., § 12022.53, subd. (b)). The trial court sentenced Gonzales to concurrent terms of 13 years in state prison on the two counts, consisting of the low term of 3 years plus 10 years on the firearm use enhancement.
Gonzales contends he received ineffective assistance of counsel based on his trial counsel’s recommendation that he reject a plea offer. We conclude Gonzales has failed to meet his burden of showing ineffective assistance of counsel on appeal, and his contention is more appropriately raised on habeas corpus. We therefore affirm the judgment.

Jimmy Santana appeals from a judgment which sentenced him to 40 years to life in state prison for a drive-by shooting that left a 16-year-old victim unable to walk. Santana asserts the trial court committed multiple evidentiary errors. He also contends his constitutional rights were violated when trial testimony was read back to the jury outside of his presence. Last, Santana contends the trial court improperly denied his request, made after trial but before his sentencing, to substitute appointed counsel for retained counsel. We affirm.

Gary Anthony Sanchez, Jr., appeals from a judgment following his convictions for first degree murder and two assaults with a semiautomatic firearm. He contends the trial court erred (1) when it denied his Wheeler motions,[1] (2) when it determined that he had impliedly waived his Miranda rights,[2] and (3) when it admitted evidence that he previously owned a .380-caliber handgun. He also contends that he did not receive a fair trial because of the cumulative effect of the trial court’s errors. Finally, he contends the evidence was insufficient to sustain two of his convictions. Finding no reversible error, we affirm.

A jury convicted defendant German Jimenez of three counts of willful, deliberate, premeditated attempted murder of a peace officer (Pen. Code, §§ 664, 187, subd. (a); counts 1-3);[1] two counts of assault on a peace officer with a semiautomatic firearm (§ 245, subd. (d)(2); counts 4 & 5); one count of assault upon a peace officer with a deadly weapon or by force likely to produce great bodily injury (§ 245, subd. (c); count 6); two counts of willful, deliberate, premeditated attempted murder (§§ 664, 187, subd. (a); counts 7 & 8); two counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 9 & 10); and one count of attempted carjacking (§§ 664, 215, subd. (a); count 11). The jury found true the allegation as to counts 1, 2, 4, 5, 7, and 8 that appellant personally and intentionally discharged a firearm proximately causing great bodily injury (§ 12022.53, subds. (c) & (d)), the allegation that as to counts 9 and 10 appellant personally used a firearm (§ 12022.5) and inflicted great bodily injury as a result of discharging a firearm from a motor vehicle (§ 12022.55), and that as to count 9 appellant personally inflicted great bodily injury (§ 12022.7).
The court sentenced appellant to a total of two life terms, plus 145 years to life, plus 23 years and six months, consisting of the following: 40 years to life on each of counts 1 and 2 (15 years to life for the substantive offense, plus 25 years to life for the § 12022.53, subd. (d) firearm enhancement); 15 years to life on count 3; life on counts 7 and 8 plus 25 years to life for the section 12022.53, subdivision (d) firearm enhancement as to each count; the upper term of nine years on count 10, plus 10 years for the section 12022.5 firearm enhancement; and four years and six months on count 11 (half the upper term of nine years). The sentences on counts 4, 5, 6, and 9 were stayed pursuant to section 654. The remaining enhancements were stricken.
Appellant contends on appeal that, due to his voluntary intoxication, there was insufficient evidence to support the jury’s finding that appellant formed the specific intent to commit willful, deliberate, premeditated attempted murders of three peace officers and two other men, and attempted carjacking, and that the trial court erred by admitting appellant’s statement to detectives purportedly taken in violation of appellant’s Miranda[2] rights. Appellant also contends and the Attorney General correctly concedes that the trial court erred by imposing a consecutive sentence as to count 10, assault with a semiautomatic firearm, when the factual basis for that crime arose out of the same indivisible course of conduct as count 8, attempted murder, and therefore the sentence as to count 10 should have been imposed and stayed pursuant to section 654. We are not persuaded by appellant’s contentions as to the specific intent crimes and admission of his statement. However, because we find the trial court erred by imposing sentence as to count 10, we direct the trial court to modify its judgment accordingly. In all other respects, the judgment is affirmed.

Plaintiffs and appellants Gary and Ivy Hollingsworth contracted with general contractor Baker Brothers Construction, Inc. (BBCI) to remodel their house. Dissatisfied with BBCI’s performance, plaintiffs “rescinded and terminated” the contract. BBCI brought an action against plaintiffs for breach of contract, quantum meruit, and unjust enrichment, and plaintiffs filed a cross-complaint against BBCI for negligence and breach of contract (BBCI Action). BBCI tendered the defense of the cross-complaint to its insurer, defendant and respondent Lincoln General Insurance Company (Lincoln), which denied a defense and indemnity to BBCI. Thereafter, BBCI and plaintiffs settled the BBCI Action, which settlement included BBCI’s assignment to plaintiffs of any claims or causes of action BBCI had against Lincoln or BBCI’s insurance broker, defendant and respondent Powers & Effler Insurance Brokers, Inc. (Powers), in connection with the disputed insurance coverage for the BBCI Action. Plaintiffs then brought an action against Lincoln for failing to defend and indemnify BBCI in the BBCI Action and against Powers for failing to procure for BBCI insurance that would have covered the allegations in plaintiffs’ cross-complaint in the BBCI Action (Coverage Action).
In their first amended complaint in the Coverage Action, plaintiffs asserted causes of action for breach of contract, breach of the covenant of good faith and fair dealing, and fraud against Lincoln, and breach of contract and negligence against Powers. The trial court granted Lincoln’s motion to strike plaintiffs’ punitive damages claim in connection with the breach of the covenant of good faith and fair dealing cause of action. It sustained, without leave to amend, Lincoln’s demurrer to the fraud cause of action and found moot Lincoln’s motion to strike an accompanying claim for punitive damages. Thereafter, Lincoln and Powers successfully moved for summary judgment. Plaintiffs appeal from the order sustaining Lincoln’s demurrer, a purported order striking the punitive damages claim, the orders granting summary judgment, and an order denying certain motions to compel discovery responses. We affirm.

Grant & Weber, Inc. (Grant & Weber) brought a debt collection action against Natalie Mansour-White (Natalie) and Robert White (Robert; collectively the Whites). Upon learning that the debt had been forgiven, Grant & Weber voluntarily dismissed its complaint against the Whites. The Whites then filed the instant malicious prosecution action against Grant & Weber. Following a bench trial, the trial court found that the Whites had established all elements of malicious prosecution and that Grant & Weber had committed two violations of the Rosenthal Fair Debt Collection Practices Act (Rosenthal Act; Civ. Code, § 1788 et seq.). Grant & Weber appeals.
After reviewing the appellate record, we reverse the judgment. We conclude that there is no evidence of malice, an essential element of the Whites’ malicious prosecution claim. We also conclude that all of the evidence presented at trial proves Grant & Weber’s bona fide error defense, thereby precluding liability for the alleged Rosenthal Act violations. It follows that the Whites are not entitled to attorney fees.

Plaintiff Maria Arreola appeals from a $1 million judgment in her favor entered following an attempted acceptance of her settlement offers by defendants Ronaldo Napole and World Express Tech, Inc. pursuant to Code of Civil Procedure section 998. She also appeals from a post-judgment order denying her motion to set aside the judgment pursuant to Code of Civil Procedure section 473. We conclude that, even though the offers were not valid statutory offers under Code of Civil Procedure section 998, they were valid non-statutory offers, and defendants did not properly accept them according to their terms. Therefore, we reverse the judgment the trial court entered pursuant to section 998.