CA Unpub Decisions
California Unpublished Decisions
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A jury convicted defendant Patrick Fousek of felony child endangerment (Pen. Code, § 273a, subd. (a))[1] and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364) but deadlocked on a third count, misdemeanor using or being under the influence of a controlled substance (Health & Saf. Code, §11550, subd. (a)). The trial court declared a mistrial on that count and sentenced defendant to six years in prison.
On appeal, defendant contends that (1) the evidence was insufficient to support his child endangerment conviction, and (2) the trial court prejudicially erred in failing to give a unanimity instruction with respect to that count. We agree with defendant’s second contention and reverse the judgment. |
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The Santa Clara County District Attorney filed an information charging defendant Jeffrey Angel Romero with two counts of second degree burglary (Pen. Code, §§ 211, 212.5, subd. (c)[1] - counts one and three) and one count of felony imprisonment (§§ 236, 237 - count two). The information also alleged: (1) defendant personally used a firearm within the meaning of section 12022.53, subdivision (b) when he committed the offenses charged in counts one and three, and (2) he personally used a firearm within the meaning of sections 12022.5, subdivision (a) and 1203.06 when he committed the offense charged in count two. The jury found defendant guilty as to counts one and two, and not guilty as to count three. The jury also found that the allegations of the firearm use enhancements were true as to counts one and two. The trial court sentenced defendant to 18 years in prison. On appeal, defendant contends: (1) the trial court erred when it admitted evidence of uncharged offenses, (2) the trial court abused its discretion in denying trial counsel’s request to read two articles on the unreliability of eyewitness identification evidence, and (3) the trial court erred when it awarded no custody credits to defendant. We reverse the judgment and remand the matter for resentencing.
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Patrick Pekin (Pekin) sued Richard Scagliotti (Scagliotti), as an individual and a former member of the San Benito County Board of Supervisors (Board), the Board, and the San Benito County Financing Corporation (SBCFC), "a wholly owned subsidiary of San Benito County" (County). In this appeal, Pekin is challenging the trial court's order denying his motion to disqualify opposing counsel, Michael Serverian.[1] Pekin had alleged that Serverian's joint representation of Scagliotti and the County involved a disqualifying actual conflict of interest. The County as an entity is not a separately named defendant.
We affirm the court's order refusing to disqualify attorney Serverian. |
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This matter is before us for the second time, having been transferred by the California Supreme Court for reconsideration in light of United Teachers of Los Angeles v. Los Angeles Unified School District (2012) 54 Cal.4th 504 (United Teachers).
Plaintiffs California Teachers Association (CTA) and the Salinas Elementary Teachers Council (SETC) (collectively, the unions) appeal from a judgment of dismissal entered after the sustaining without leave to amend of a demurrer by defendants Governing Board of the Salinas City Elementary School District and the Salinas City Elementary School District (collectively, the District) to the unions’ verified petition for writ of mandate and complaint for declaratory relief (the complaint). The basis for the trial court’s ruling was lack of jurisdiction due to the unions’ failure to exhaust the administrative remedy specified in the parties’ collective bargaining agreement (CBA). On appeal, the unions contend that “[t]he analysis required by [United Teachers] . . . dictates reversal of the trial court’s judgment.†Pointing out that claims to enforce mandatory Education Code provisions are not subject to internal exhaustion requirements, they insist that their complaint alleged “strictly statutory claims . . . for violations of the teacher pay uniformity requirements of Education Code [section] 45028.†Having reconsidered the matter in light of United Teachers, we conclude that to the extent the unions’ complaint alleges violations of the teacher pay uniformity requirements of Education Code section 45028[1] (as opposed to “misinterpretation[s], misapplication[s], or violation[s] of†the CBA), the unions may pursue those claims in court without exhausting their administrative remedies. Because the complaint as currently drafted does not permit us to determine whether the unions may pursue all or only some of their claims in court, we vacate our original decision, reverse the judgment, and remand the matter for further proceedings. |
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In July 2010, Waring led an excursion aboard his seafaring vessel, the Perro Grande. Yard was one of the invited passengers. At some point, Yard fell off the “flying bridge†and struck the railing of the vessel as she plummeted into the sea. Yard suffered injuries and incurred medical bills as a result of her injuries.
In February 2012, Yard filed a complaint against Waring, alleging that Waring’s negligence was the cause of her injuries. To wit, Yard claims Waring “negligently and carelessly allowed his passengers access to the flying bridge of the vessel while it was in open sea, when he knew or should have known that it would be unreasonably dangerous†to allow such access. Yard seeks general damages in excess of $25,000, medical and incidental expenses, lost earnings, interest, and costs of suit. In April 2012, Waring answered the complaint and filed a cross-complaint. Waring’s pleadings deny his own negligence and instead allege that Yard’s negligence was the cause of her injuries (i.e., Yard consumed alcoholic beverages then traversed beyond a protective railing whereupon she began dancing and/or practicing yoga). Waring’s answer does not allege the existence of an enforceable general release as an affirmative defense. Waring’s cross-complaint asserts causes of action for breach of implied-in-fact contract and fraud/false promise against Yard. Waring alleges that Yard contacted him in October 2010 for help in paying her medical bills. Waring notified his insurer, which agreed to pay Yard’s medical bills so long as Yard signed a release of all Waring’s liability. Yard promised to sign the release, but Yard subsequently refused to do so even after medical bills had been paid. Yard was unjustly enriched and Waring was harmed in excess of $25,000. In sum, Waring wants his (or his insurer’s) money back. Despite his allegation of an “implied-in-fact†contract, Waring does not want to enforce the prelitigation settlement agreement (i.e., Yard keeps the money she received and her case is dismissed based on the general release). |
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This appeal arises from a dispute between siblings Robin G. Miller and Kori Miller over the terms of a trust.[1] On the first day of a trial that was to determine whether certain purported amendments to the trust were valid, the parties settled, orally stating the terms on the record. Kori later claimed the settlement was invalid, but the court enforced the settlement under Code of Civil Procedure section 664.6.[2] Kori appeals from that order. Kori’s brother Robin has moved to dismiss the appeal on two grounds: (1) Under the “disentitlement doctrine,†Kori’s violation of a court order should preclude her from seeking the assistance of this court; and (2) Kori’s acceptance of the benefit of a portion of the judgment waived her right to appeal. For the reasons expressed below, we deny the motion to dismiss.
On the merits of the appeal, Kori argues (1) the court lacked jurisdiction to enforce the settlement because the parties did not request the court to retain jurisdiction, (2) the settlement was unenforceable because the parties did not express their assent to the settlement in the same manner — Kori consented orally in open court and Robin later consented in writing outside of court, (3) a condition precedent to the settlement agreement was that it be reduced to writing on the same day, and it was not, and (4) the oral settlement agreement omits material terms. We reject each of these arguments. The court retained jurisdiction, despite the absence of an express request by the parties, because a final judgment had not yet been entered at the time the agreement was enforced. Section 664.6 does not require each party to express their assent in the same manner. It is enough if each party expresses their consent in a manner specified by the statute; i.e., orally on the record or in writing outside of court. Kori waived the asserted condition precedent to the effectiveness of the agreement. And finally, the contention that the oral settlement omitted material terms lacks record support. Accordingly, we affirm the judgment. |
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Defendant Lap Phuong Nguyen was convicted of receiving stolen property, unlawful acquisition of access card information, and vehicle burglary. On appeal, defendant challenges the sufficiency of the evidence supporting one of his convictions, and raises several sentencing-related issues.
We conclude there was sufficient evidence of vehicle burglary. Although mere possession of stolen property is not enough to support a conviction for burglary, defendant’s presence at the scene of the crime was sufficient corroborating evidence. We therefore affirm defendant’s conviction for vehicle burglary. We agree that defendant is entitled to additional presentence custody credits, but because defendant’s crimes were committed before October 1, 2011, he is not entitled to accrue good conduct credits at the current rate specified in Penal Code section 4019, subdivision (f). Defendant was ordered to pay restitution to two victims. We agree with defendant and the Attorney General that the award to one of those victims (Cindy Dang) must be stricken because her losses did not occur as a result of defendant’s criminal conduct; defendant was convicted of unlawful acquisition of Dang’s access card information, but was acquitted of burglarizing the vehicle from which Dang’s property was taken. We remand the matter to the trial court to conduct a restitution hearing as to the other victim (Giangtuyet Vu), to determine whether defendant’s criminal conduct was a substantial factor in causing her loss. Finally, we reverse the restitution and parole revocation fines imposed by the trial court and direct the court to impose fines in the amount provided by statute at the time defendant’s crimes were committed. |
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Madison Harbor, Ali Parvaneh and Jenos Firouznam-Heidari for Plaintiff, Cross-defendants, and Respondents.
For the third time, we are asked to resolve an appeal in a case with approximately $30,000 to $40,000 in unpaid legal bills at stake. (See Madison Harbor v. Tong (May 18, 2009, G039798) [nonpub. opn.] (Tong I); Madison Harbor v. Tong (Oct. 28, 2010, G042540) [nonpub. opn.] (Tong II).) The first two appeals pertained to a default judgment obtained by plaintiff Madison Harbor, ALC (Madison Harbor), against defendant Tu My Tong, which was ultimately set aside. This time, Madison Harbor moved for summary judgment and obtained a judgment on the merits. Tong contends the trial court wrongly granted summary judgment, in particular with regard to her cross-complaint against Madison Harbor and two attorneys affiliated therewith, Robert Sabahat and Ali Parvaneh. We affirm in part and reverse in part. |
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Defendant and appellant Destiny Caroline Jennings was convicted by a jury of multiple drug-related charges, but this appeal challenges only her conviction of possession of a controlled substance, to wit, Xanax (alprazolam). (Health & Saf. Code, § 11375 [1] [see infra].) She argues that the evidence was insufficient to support her conviction because the criminalist who testified at trial did not conduct a chemical analysis of the seized pills and did not testify with certainty that the pills were Xanax. We disagree and affirm the judgment with directions.
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After punching Daniel Ruiz and breaking his jaw, Michael Stanley Madiera (also known as Michael Stanley Madeira) was found guilty of certain assault and battery offenses and sentenced to prison for seven years. Madiera contends the judgment must be reversed because the trial court gave the jury an inapplicable instruction that unconstitutionally undermined his defense. We reject this contention and affirm the judgment.
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The former plaintiffs' attorney in this action, Janet E. Sobel, appeals from an order imposing $6,150 in sanctions against her for opposing a motion to compel arising from her instructions to her clients not to answer deposition questions. As we will explain, we conclude that Sobel's contentions lack merit, and accordingly we affirm the order.
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Phonessavanh Phinsavanh appeals a judgment following his jury conviction of one count of carjacking (Pen. Code, § 215, subd. (a))[1] and one count of unlawful taking or driving a vehicle (Veh. Code, § 10851, subd. (a)). On appeal, he contends his carjacking conviction must be reversed because: (1) the evidence is insufficient to support findings that the victim possessed the vehicle at the time of the taking and Phinsavanh used force or fear to take the vehicle; and (2) the carjacking statute was not intended to address the circumstances in this case.
FACTUAL AND PROCEDURAL BACKGROUND At about 12:00 p.m. on November 10, 2011, Marcus Neal parked his black Ford Expedition on the street in front of his grandmother's house on Hilltop Drive. He left its doors unlocked, its keys in the ignition, and its windows down. He went inside to assist his uncle in lifting his grandmother into bed in the front bedroom. |
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Thomas E. Goddard appeals the judgment entered on a jury verdict awarding Andrea Samarkos compensatory and punitive damages for personal injuries she sustained when Goddard, while drunk, drove his vehicle into the rear end of Samarkos's stopped vehicle. Goddard attacks the judgment on grounds of erroneous evidentiary rulings, instructional errors, and misconduct by Samarkos's trial counsel. We conclude two of the challenged evidentiary rulings were prejudicially erroneous and therefore reverse the judgment.
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A jury found defendant Larrel Martin Weathers guilty of possession of a firearm by a convicted felon. (Pen. Code, § 12021, subd.(a)(1).)[1] The trial court found that he had a prior serious felony conviction (§§ 667, subds. (b)-(i), 1170.12) and had served a prior prison term (§ 667.5, subd. (b)). A count of obstructing a peace officer (§ 148, subd. (a)(1)) was dismissed in the interest of justice.
Defendant was sentenced to prison for seven years, consisting of twice the upper term of three years plus one year for the prison term. He was awarded 383 days of custody credit and 190 days of conduct credit, and ordered to pay a $1,000 restitution fine (§ 1202.4, subd. (b)), a $1,000 restitution fine suspended unless parole is revoked (§ 1202.45), a $40 court operations fee (§ 1465.8, subd. (a)(1)), a $30 court facilities assessment (Gov. Code, § 70373), a $340.01 booking fee and a $62.09 classification fee (Gov. Code, § 29550.2). |
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