CA Unpub Decisions

Dennis Wise and Joan Macfarlane (together the Wises) were represented by the law firm, defendant DLA Piper LLC (US),[1] that aided them in obtaining a judgment in 1994 against William Cheng. However, DLA did not advise the Wises of the necessity to renew the judgment, and after 2004 the judgment became unenforceable. The Wises brought this action alleging malpractice and obtained a judgment against DLA. On appeal, DLA contends the evidence is insufficient to support the judgment against it because there was no evidence the Wises' judgment against Cheng would have been collectable even had it been renewed. DLA also contends on appeal (1) there was no substantial evidence the statute of limitations on the malpractice claim had been tolled by continuous representation, (2) the special verdict form was fatally flawed because it did not submit to the jury the issue of whether there had been continuous representation within four years of filing the complaint, and (3) even assuming the judgment as to liability and damages was proper, there was no legal basis for the award of attorney fees against DLA. We do not reach these contentions because of our conclusion that there was no substantial evidence the judgment against Cheng was collectable.

Sanchez contends (1) the trial court erroneously admitted his statements to police in violation of the Fifth Amendment pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); and (2) the trial court should have instructed the jury with the lesser included offense of voluntary manslaughter on the theory that he committed the killing without malice during the commission of an inherently dangerous felony. We conclude that Sanchez's arguments are without merit, and we accordingly affirm the judgment.

Stutz Artiano Shinoff & Holtz, Daniel R. Shinoff and Paul V. Carelli for Plaintiff and Respondent.
Real party in interest and appellant Erik Ong (Appellant) appeals the judgment granting a petition for a writ of administrative mandamus that was brought by plaintiff and respondent San Ysidro Unified School District (District), to set aside a decision of the defendant Commission on Professional Competence (the Commission). (Code Civ. Proc., § 1094.5; all further statutory references are to this code unless noted.) The Commission's decision, issued after an evidentiary hearing, dismissed the charges and accusations against Appellant of "evident unfitness to teach" and "immoral conduct" that were based on his violation of a District policy and teacher agreement to use technology appropriately and to keep student information, including their e-mail addresses, confidential. (Ed. Code, § 44932, subd. (a).) Appellant was also charged with other computer-related policy violations (keeping and accessing inappropriate sexually oriented material on his classroom computer). Appellant's violation of the confidentiality policy had allowed his roommate to use Appellant's personal computer to access a student's e‑mail address and to send the student an inappropriate (albeit misdirected) e-mail soliciting sexual contact, and the e-mail with photographic attachments was received with shock and surprise by the student and his family, and reported to school authorities.

Following a plea of guilty to first degree burglary, the trial court sentenced defendant Donald Anthony Craven to a stipulated term of four years in state prison. Appointed counsel for defendant has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal.[1] (People v. Wende (1979) 25 Cal.3d 436.) Having reviewed the record as required by Wende, we affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

This appeal involves the use of private contractors to perform state functions. The Department of Corrections and Rehabilitation (CDCR) entered into contracts with private contractors to provide mental health services to parolees pursuant to Penal Code section 3073.[1] On behalf of the CDCR employees it represents, the American Federation of State, County, and Municipal Employees Local 2620, AFL-CIO (AFSCME) sought administrative review by the State Personnel Board (the Board), which concluded the contracts were invalid under civil service laws prohibiting state agencies from contracting with private entities to perform services customarily or historically performed by state employees. (Cal. Const., art. VII.)[2] CDCR filed a petition for writ of administrative mandamus. (Code Civ. Proc., § 1094.5.) The trial court granted the petition, ruling that the personal services contracts were valid under the “new state function” exception to the civil service mandate in Government Code section 19130, subdivision (b)(2).[3] AFSCME appeals, arguing the trial court erred in reweighing the evidence before the Board, and the evidence supported the Board’s determination that the services did not comprise a new state function.
We affirm the judgment.

Petitioner South County Citizens for Smart Growth (Smart Growth) appeals from the trial court’s denial of its petition for writ of mandate in which Smart Growth alleged that the County of Nevada (the County) violated various provisions of the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) in approving a commercial real estate project in Nevada County.[1] Smart Growth contends we must reverse the judgment because (1) the County failed to prepare and recirculate a revised draft EIR adding an alternative project proposal recommended by staff for the Nevada County Planning Commission (the staff alternative); (2) the County failed to make any findings regarding the feasibility of the staff alternative; and (3) the County relied on future traffic improvements that have not been approved yet in order to declare the revised project’s traffic impacts less than significant.
We conclude (1) the County did nor err in failing to prepare and recirculate a revised draft EIR adding the staff alternative, because the staff alternative was not “significant new information” within the meaning of the CEQA Guidelines; (2) the County was not required to make findings regarding the feasibility of the staff alternative because the alternative was proffered after preparation of the final EIR and adequate alternatives were discussed in the EIR; and (3) the County did not rely on future traffic improvements, but instead relied on the current actual use of the road in question, rather than its current traffic designation.
We will affirm the judgment.

J.K. (mother) appeals the juvenile court order denying her Welfare and Institutions Code[1] section 388 petition, claiming the court abused its discretion in failing to return mother’s three children to her care based on her changed circumstances and the children’s best interests. She also appeals the subsequent order establishing legal guardianship of the children with their paternal grandparents, arguing it is not in the children’s best interests. We hold the juvenile court properly denied the section 388 petition and ordered legal guardianship of the children. The orders are affirmed.

Defendant Young Woo Kim appeals from the judgment entered following his conviction by jury of conspiracy to commit first degree burglary and two counts of first degree robbery, with the finding that he voluntarily acted in concert with two or more persons in the commission of the robberies. (Pen. Code, §§ 182, subd. (a)(1), 211, 214, subd. (a)(1)(A).)[1] Defendant was found not guilty of first degree burglary and assault with a stun gun or taser.[2] (§§ 459, 244.5, subd. (b).) He contends: (1) tapes of an accomplice’s interviews with police were improperly admitted; (2) his statement to police should have been excluded because he was not properly advised of his Miranda rights;[3] (3) the convictions are unsupported by the evidence; (4) the testimony of an accomplice was not sufficiently corroborated; (5) the court erred by refusing to disclose the jurors’ contact information; and (6) the court improperly imposed the upper term sentence for the robbery conviction. Finding no error, we affirm the judgment.

Barbara and Ellen Cooper (Appellants) seek to unwind the foreclosure of their home by HSBC Bank USA as Trustee for MLCC 2007-3 (HSBC). The trial court sustained HSBC’s demurrer without leave to amend. We conclude Appellants lack standing to assert their claims against HSBC. The judgment is affirmed.

Defendant and appellant, Daniel Carl Dean, appeals from the judgment entered following his plea of no contest to the felony of assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)).[1] The trial court suspended imposition of sentence and granted Dean three years formal probation, the conditions of which included service of 222 days in county jail, performance of “30 days of Caltrans” or “community labor” and compliance with “gang conditions,” including registration as a gang member pursuant to section 186.30. We affirm.

Marques S. appeals one jurisdictional finding of the juvenile court concerning his son, M.C. We dismiss the appeal.

Defendant and appellant, Elwood Mitchell, appeals from the judgment entered following his plea of no contest to the sale, transportation or offer to sell a controlled substance, cocaine base (Health & Saf. Code, § 11352, subd. (a)), and his admission he previously had been convicted of robbery (Pen. Code, § 211) within the meaning of the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced Mitchell to six years in prison. We affirm.

Donald T. (father) appeals from the order declaring his three-year-old daughter, D.T., a person described by Welfare and Institutions Code section 300, subdivisions (a) and (b).[1] Father contends (1) the evidence is insufficient to support jurisdiction based on father’s history of illicit drug use and a single incident of domestic violence which occurred two years before the hearing and (2) the evidence is insufficient to support the finding that removal from father’s custody was the only means to protect D.T. within the meaning of section 361, subdivision (c)(1). Because father’s contentions, even if accepted, would not justify reversal of the jurisdictional order, which was also based on mother’s conduct, we dismiss father’s appeal from the jurisdiction order. We affirm the disposition order.

Frank A. Viramontes appeals a judgment following conviction of robbery. (Pen. Code, § 211.)[1] The jury found that he committed the crime to benefit a criminal street gang. (§ 186.22, subd. (b)(1).) Viramontes admitted he suffered a prior prison term. (§ 667.5, subd. (b).) The trial court sentenced Viramontes to 13 years in state prison, consisting of three years for the robbery and 10 years for the gang enhancement. (§§ 211, 186.22, subd. (b)(1)(C).) The court stayed a one-year prior prison term enhancement. We remand to the trial court to correct the sentence by either imposing or striking the one-year prior prison term enhancement, and otherwise affirm.