CA Unpub Decisions

Earnest A. Davis filed a petition for writ of mandate challenging the decision of the Board of Retirement of the San Diego County Employees Retirement Association (Retirement Board) denying his application for service-connected disability retirement benefits. The trial court denied the petition. On appeal, Davis contends the evidence does not support the trial court's ruling. He also asserts the judgment should be reversed because he was denied a continuance to secure the attendance of a witness at the administrative hearing. He also raises claims of racial discrimination and hearing officer bias. We find no error and affirm.

The Golden Hill Neighborhood Association and property owner John McNab (collectively Association) prevailed in a prior appeal in which this court ordered the trial court to vacate the judgment and issue a new judgment granting the Association's requested relief against the City of San Diego (City). (Golden Hill Neighborhood Assn., Inc. v. City of San Diego (2011) 199 Cal.App.4th 416 (Golden Hill).) After the remittitur was issued and the trial court entered the new judgment, the Association sought attorney fees under the private attorney general doctrine. (Code of Civ. Proc., § 1021.5 (§ 1021.5).) The trial court denied the motion, finding it was untimely under California Rules of Court, rule 3.1702(c)(1).[1]
We determine the trial court erred in ruling that the Association's attorney fees motion was governed by rule 3.1702(c)(1). Under settled law, rule 3.1702(b)(1) is the applicable rule and the Association's motion was timely under this rule. We reject the City's alternate contention that the Association waived its right to seek attorney fees by failing to seek the fees after the initial trial or during the prior appeal. We reverse and remand for the court to consider the Association's attorney fees motion on its merits.
FACTUAL AND PROCEDURAL SUMMARY
In 2007, the Association sued the City challenging the legality of a City resolution establishing a Golden Hill maintenance district (District) and challenging the City's initial 2007 assessments to fund services in the maintenance district. (Golden Hill, supra, 199 Cal.App.4th at pp. 426-428.) In its complaint and petition for writ of mandate, the Association claimed the City's formation of the District and the 2007 assessments violated article XIII D of the California Constitution (article XIIID), which limits a local government's ability to levy special assessments against real property. (Golden Hill, supra, at pp. 426-428.)
The next year the Association filed a second lawsuit against the City challenging the District's 2008 tax assessments. (Golden Hill, supra, 199 Cal.App.4th at p. 428.) The lawsuits were consolidated. (Id. at p. 421.)

Brendan Liam O'Rourke, who suffers from a mental illness causing delusions, opened fire at an elementary school. At the guilt phase of his trial, the jury found him guilty of numerous counts of premeditated attempted murder and other offenses. Defendant raises no challenges to the guilt phase verdict. At the sanity phase of his trial, the jury rejected his claim of not guilty by reason of insanity. On appeal, he argues the record does not support the jury's sanity phase verdict. We reject this contention and affirm.

W&W Del Lago, LLC, Stanley Westreich, and Ruth Westreich (collectively Plaintiffs) appeal a judgment in favor of defendant Rancho Del Lago Homeowner's Association (Defendant) after the trial court sustained Defendant's demurrer to Plaintiffs' complaint. Plaintiffs' complaint alleged causes of action against Defendant for negligence, negligent misrepresentation or omission, breach of contract, and indemnity/contribution. On appeal, Plaintiffs contend the trial court erred by concluding their complaint did not state causes of action against Defendant. Plaintiffs assert the trial court erred by concluding: (1) Defendant did not owe them any duty of care in reviewing engineering plans they submitted for development of their property; and (2) they did not state causes of action for breach of contract, negligent misrepresentation or omission, and equitable indemnity.

Plaintiffs filed an action alleging Kerry, who was married to Tina and was stepfather to Jessica and Joshua, committed numerous acts of assault and battery on them over many years, and also intentionally inflicted emotional distress on them. They also alleged that, after they obtained a restraining order to stop the abuse, Kerry violated the order and continued stalking them.
The matter was tried to the court. After hearing the testimony of plaintiffs and Kerry, the court found against Kerry and in favor of plaintiffs, and entered a judgment awarding compensatory and punitive damages and attorney fees against Kerry and in favor of plaintiffs. Kerry timely appealed.

After she was terminated, Esperanza Acuna sued her former employer, San Diego Gas & Electric Co. (SDG&E), asserting claims under the Fair Employment and Housing Act (FEHA) (Gov. Code,[1] § 12900 et seq.), and several nonstatutory claims. The court sustained SDG&E's demurrer on Acuna's first amended complaint without leave to amend. The court found Acuna's FEHA-based claims were barred by the applicable statute of limitations and Acuna failed to sufficiently state a cause of action on her remaining claims.

Appellant Blue Hen Enterprises, LLC (Blue Hen) purchased real estate encumbered with past-due property taxes. Blue Hen submitted requests to the Imperial County Tax Assessor (Assessor) and the Imperial County Board of Supervisors (Board) seeking a reduction in the past-due taxes based on its claim that the value of the property had been overassessed.[1] The Assessor denied the request on untimeliness grounds, and Blue Hen's appeal to the Board was denied by operation of law without a consideration of the merits. Blue Hen then filed an action in superior court requesting an order compelling the Assessor and the Board (respondents) to consider its request on the merits. The trial court sustained respondents' demurrer and dismissed the action. Blue Hen challenges this ruling on appeal.
We conclude that even assuming Blue Hen filed a timely claim for tax relief with respondents, the trial court's order was correct because under the relevant statutory scheme Blue Hen is precluded from obtaining its requested retroactive property tax relief.

This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
An information filed in December 2012 charged defendant Melvin Allen with attempted murder (count 1; Pen. Code, §§ 187/664), carrying a concealed firearm (count 2; Pen. Code, § 25400, subd. (a)(1)), carrying an unregistered firearm (count 3; Pen. Code, § 25850, subd. (c)(6)), obstructing a peace officer (count 4; Pen. Code, § 148, subd. (a)(1)), assault with a firearm (count 5; Pen. Code, § 245, subd. (a)(2)), and shooting at an occupied motor vehicle (count 6; Pen. Code, § 246). As to count 1, it was alleged that defendant personally and intentionally discharged a firearm (Pen. Code, § 12022.53, subd. (c)) and personally used a firearm (Pen. Code, §§ 12022.5, subd. (a), 12022.53, subd. (b)). As to count 5, it was alleged that defendant personally used a firearm (Pen. Code, §§ 1203.06, subd. (a)(1), 12022.5, subd. (a)).

James M. (father) and Brandy W. (mother) appeal from the juvenile court’s orders terminating their parental rights as to minors G.W. and J.M. (Welf. & Inst. Code, § 366.26.)[1] Brandy W. is the biological mother of both minors; James M. is the biological father of J.M. and the stepfather of G.W.

Appointed counsel for defendant Kevin Maurice Monroe asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.

On January 3, 2012, defendant Kirk Addington went to Brandy Johnson’s house and requested a ride.[1] She told him she was unable to give him a ride and told him to leave. Instead of leaving, and without Johnson’s permission, defendant drove away in Johnson’s truck. Later that day, defendant and the truck were located in a makeshift camp. He told police that Johnson regularly allowed him to drive her cars to facilitate methamphetamine purchases. He admitted that he owed her money and that she was angry about his debt.
Defendant pleaded no contest to unlawful taking and driving a vehicle (Veh. Code, § 10851, subd. (a)) and admitted that he had served two prior prison terms (Pen. Code, § 667.5, subd. (b)). In exchange, a strike allegation and two prior prison term allegations were dismissed with a Harvey waiver.[2]

A jury found defendant Andre Anthony Powe guilty of second degree murder and unlawful possession of a weapon. The trial court sentenced defendant to a term of 43 years to life in prison. Defendant appeals the judgment, contending the trial court erroneously denied him presentence custody credit for time served. The People properly concede.

Convicted by a jury of committing dozens of counts of sex crimes against a child under 10 years old, and sentenced to a determinate prison term of 10 years eight months consecutive to an indeterminate prison term of 335 years to life, defendant Michael Shane Martinez appeals his determinate term convictions on five counts of possessing child pornography.
Defendant contends his simultaneous possession of multiple pornographic images violate a single code section—Penal Code section 311.11, subdivision (a) (hereafter section 311.11(a))—and constitutes only one offense. (See People v. Hertzig (2007) 156 Cal.App.4th 398, 403 (Hertzig).) The People agree that under the circumstances of this case, defendant can be convicted of only one count of possessing child pornography, and that his determinate sentence should be reduced accordingly. We also agree, and shall order four of defendant’s five convictions of possessing child pornography stricken, and remand the matter for resentencing.

Pursuant to a negotiated plea agreement and while represented by appointed legal counsel, defendant Stephen Brett Klinger pled no contest to one count of inflicting corporal injury on a spouse. (Pen. Code, § 273.5, subd. (a).)[1] The trial court suspended imposition of sentence, granted defendant formal probation, and imposed various fines and fees.
On appeal, defendant contends the trial court erred in failing to conduct a Marsden[2] hearing. Defendant also challenges the imposition of a $296 booking fee (Gov. Code, § 29550.2), a $120 probation supervision fee (§ 1203.1b), a $40 court security fee (§ 1465.8), and a $30 court facilities assessment (Gov. Code, § 70373).
We conclude defendant waived any error as to the Marsden issue by entering his no contest plea. Thus, we affirm defendant’s conviction. However, we conclude the judgment must be reversed and remanded for the trial court to conduct a hearing on defendant’s ability to pay a booking fee and a probation supervision fee. On remand, the trial court shall also modify its order imposing fees to clarify that the court security fee and court facilities assessment are not conditions of probation.