CA Unpub Decisions

Plaintiff Richard Howard sought to certify a class of California consumers who allegedly received from defendant Trans Union, LLC, boilerplate descriptions of how it investigated complaints about credit reports—descriptions allegedly lacking the detail required by California’s Consumer Credit Reporting Agencies Act (CCCRAA) (Civ. Code, § 1785.1 et seq.).[1] The trial court denied Howard’s motion for class certification on numerous grounds. We conclude the trial court did not abuse its discretion in denying his motion, and affirm.

Defendant Dale Dwayne Richard (appellant) appeals from a judgment of conviction on multiple felony offenses, seeking reversal based on instructional error and prosecutorial misconduct. In addition, he contends the trial court improperly endorsed the prosecutor’s argument regarding an element of count ten, effectively directing a verdict on that count. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On May 22, 2009, a Contra Costa County Grand Jury returned a bill of indictment charging appellant with the following felony offenses against Luis Soqui on February 5, 2009: first degree residential robbery (Pen. Code, §§ 211, 212.5, subd. (a))[1] (count one); kidnapping (§ 207, subd. (a)) (count two); attempted forcible oral copulation (§§ 288a, subd. (c)(2), 664) (count three); attempted willful, deliberate, and premeditated murder (§§ 187, subd. (a), 664, subd. (a)) (count four); criminal threats (§ 422) (count eight); false imprisonment by violence (§§ 236, 237, subd. (a)) (count nine); and assault with intent to commit a felony (oral copulation) during the commission of a first degree burglary (§ 220, subd. (b)) (count ten). In addition, the indictment charged appellant with a February 5, 2009 first degree residential robbery (§ 211, 212.5, subd. (a)) of James Johnson (count five).[2] As to each count, the indictment alleged that appellant had personally used a firearm in the commission of the offense. (§§ 12022.53, subd. (b); 12022.5, subd. (a)(1).) Appellant entered a plea of not guilty to all counts.

Plaintiff and appellant Marshall S. Griffith, a real estate agent, worked as an independent contractor in a brokerage office owned by defendant and respondent Coldwell Banker Residential Brokerage Company. Plaintiff filed a purported class action on behalf of all real estate agents in such a relationship with defendant for unfair competition (Unfair Competition Law (UCL); Bus. & Prof. Code, §17200 et seq.) based on fraud and unlawful conduct, and for fraudulent inducement and mistake. The claim underlying all of these causes of action is that as part of plaintiff’s independent contractor agreement defendant required him to pay a fee for a legal assistance program (LAP) that included defense and indemnity provisions. Plaintiff claims defendant represented the LAP was errors and omissions insurance and in fact it was, which defendant was not licensed to sell.
Plaintiff appeals from a summary judgment in defendant’s favor, contending the court erred when it found the LAP was not insurance and that he could not recover on his fraud counts. We hold the court correctly granted summary judgment and affirm.
Defendant filed a request that we take judicial notice of a similar case plaintiff’s counsel filed in San Francisco, now on appeal from a summary judgment in favor of a wholly owned subsidiary of defendant. It claims that action is relevant to the one before us and judicial notice is required to prevent inconsistent results. But that case is not binding on us and is not pertinent to our analysis or ultimate decision in the case before us. Moreover, it is not in the trial court record. We deny the request.

Defendant Richard Daniel Rowman pleaded guilty to one count of first degree residential burglary. As part of a plea agreement, defendant was sentenced to a total of 12 years in state prison.
We appointed counsel to represent defendant on appeal. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), setting forth the facts of the case, raising no issues, and requesting that we independently review the entire record.
On October 29, 2012, this court provided defendant with 30 days to file written argument on his own behalf. Defendant requested additional time to file written argument; this court granted defendant’s requests, and ultimately provided defendant until February 26, 2013, to file a supplemental brief. Defendant did not file a supplemental brief identifying any issues for our review.
In response to this court’s order for supplemental briefing on the limited issue of defendant’s presentence custody credits, defendant, his appointed counsel, and the Attorney General all filed supplemental letter briefs. We conclude defendant is entitled to additional presentence custody credits, and we direct the trial court to amend the judgment to award defendant a total of 31 days of presentence custody credit, and to prepare an amended abstract of judgment reflecting defendant’s correct credits.
We have examined the entire record and counsel’s Wende/Anders brief, and find no other arguable issue. (Wende, supra, 25 Cal.3d 436.)

Following a hearing, the trial court granted a five-year restraining order prohibiting Stephen Honda from coming within 100 yards of the person, home, vehicle, job, children or children’s school, and parakeet of his former wife, Vanessa Honda. The court also ordered Stephen[1] to attend and complete a 52-week batterer intervention program, and granted custody of the couple’s three minor children to Vanessa with restrictions on Stephen’s visitation.
Stephen challenges the sufficiency of the evidence to support the trial court’s order granting Vanessa’s request for a restraining order and its child custody determination. He also claims the trial court exhibited bias against him during the hearing and denied him due process of law. We find these assertions meritless for the reasons stated below and affirm the trial court’s orders.

After 48 years of marriage, Lyle B. Greenway (Lyle) sought legal separation from Joann Greenway (Joann).[1] At first, Joann filed a response also seeking legal separation, but later she objected to ending the marriage or dividing the estate valued at several million dollars. She asserted Lyle was mentally incompetent and their son, Kurt Greenway (Kurt) was controlling the situation. The parties agreed to have the matter heard by retired judge Thomas R. Murphy on the sole issue of whether Lyle was capable of making a reasoned decision regarding his marital status. The trial court reviewed written arguments and heard testimony from Lyle, Joann, their three adult children, Lyle’s elder law attorney, the family accountant, and four health care professionals who had evaluated and assessed Lyle’s mental state. The court determined Lyle was mentally capable of making a reasoned decision to end his marriage. The court granted Lyle’s request for status-only dissolution of his marriage to Joann.
On appeal, Joann asserts: (1) the record does not contain sufficient evidence that irreconcilable differences resulted in an irremediable breakdown of the marriage; (2) there was insufficient evidence Lyle had the capacity to understand the meaning of the concepts critical to the dissolution of a marriage; and (3) the court’s conclusions regarding Lyle’s dementia are not supported by substantial evidence. We conclude Joann’s arguments lack merit, and we affirm the court’s ruling.

The court found that appellant, S.D., was a person described in Welfare and Institutions Code section 602 after appellant admitted allegations charging him with possession of a dirk or dagger (Pen. Code, § 12020, subd. (a)(4)).
On appeal, appellant contends that one of his conditions of probation is constitutionally overbroad. We will find merit to this contention and modify the condition at issue. In all other respects, we affirm.

Appellant and former minor, T.B., appeals from a juvenile court order modifying the dispositional order in his Welfare and Institutions Code section 602 proceeding. (All further statutory references are to this code unless otherwise specified.) Appellant contends the order directing that he be housed at the Division of Juvenile Facilities (DJF) pursuant to section 1752.16 was beyond the juvenile court’s statutory power, deprived him of various constitutional rights, and included impermissible conditions of probation. We affirm.

Appellant and minor, Luis M., appeals from a juvenile court order modifying the dispositional order in his Welfare and Institutions Code section 602 proceeding. (All further statutory references are to this code unless otherwise specified.) Minor contends the order directing that he be housed at the Division of Juvenile Facilities (DJF) pursuant to section 1752.16 was beyond the juvenile court’s statutory power, deprived him of various constitutional rights, and included impermissible conditions of probation. We disagree and affirm.

It was alleged in a juvenile wardship petition filed May 4, 2012,[1] that appellant, Sergio R., a minor, committed felony unlawful driving or taking of vehicle in violation of Vehicle Code section 10851, subdivision (a) (section 10851(a)). On May 14, appellant admitted the allegation.
In a second wardship petition filed on May 7, it was alleged appellant possessed a vehicle key with the intent to use it in the commission of an unlawful act, a misdemeanor (Pen. Code, § 466.7) and another violation of section 10851(a). On May 23, the petition was amended to allege the latter offense as a misdemeanor, and appellant admitted both allegations.
Also on May 23, a third wardship petition was filed. In that petition it was alleged appellant committed felony assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) and resisting, delaying or obstructing a peace officer (Pen. Code, § 148, subd. (a)(1)), a misdemeanor. On June 25, at a jurisdiction hearing, the court found both allegations true.
On August 21, at a disposition hearing covering all three petitions, the court declared the section 10851(a) violation alleged in the first petition to be a felony, the section 10851(a) violation alleged in the second petition to be a misdemeanor, and the aggravated assault alleged in the third petition to be a misdemeanor; readjudged appellant a ward of the court; ordered he serve 270 days in juvenile hall, with 112 days’ credit; and continued him on probation.
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d. 436.) Appellant has not responded to this court’s invitation to submit additional briefing. We affirm.

The court found appellant, Rudy L., was a person described in Welfare and Institutions Code section 602 after he admitted allegations charging him with possession of marijuana for sale (count 2/Health & Saf. Code, § 11359) and possession of methamphetamine while armed with a firearm (count 4/Health & Saf. Code, § 11370.1, subd. (a)).
On appeal, Rudy contends the court abused its discretion when it found him unsuitable for deferred entry of judgment. We affirm.

Appellant’s sole claim on appeal is that the juvenile court “erred because it made a finding of reasonable efforts to return A.T. to a safe home despite the Department’s failure to tailor [appellant’s] case plan to his circumstances as an incarcerated parent.” His claim lacks merit and we affirm the orders of the juvenile court.

This defamation action arises out of a contentious custody dispute that has made its way to this court five times.[1] In the underlying case, Jayraj Nair persistently fought court-ordered efforts to reunify his former wife, Bindu, with their older son, Suraj. (We refer to defendant by his last name and to other members of the Nair family by their first names for clarity.) After the couple separated, Suraj sided with his father and moved in with him. Their younger son, Sujay, continued to live with his mother. Following dissolution of the marriage, the family court awarded Nair and Bindu joint legal custody of both sons and found the best interest of the children required joint physical custody, but that Suraj’s estrangement from his mother required therapy before that could happen. (Nair II, supra, C059661.)
Janelle Burrill, Ph.D., was appointed to serve as reunification counselor to assist in the reunification process. After Dr. Burrill filed a reunification report concluding Nair was emotionally and psychologically abusing Suraj by, among other things, indoctrinating the child to believe his mother was “evil and never loved him,” and she “kidnapped Sujay and [was] holding him hostage,” and further opining Nair presented a credible threat to the physical safety of Bindu and both of their sons, Suraj was removed from Nair’s house and ultimately placed with his mother. Thereafter, the family court issued a domestic violence restraining order preventing Nair from contacting Bindu and their two sons, except for short supervised visits. We affirmed this order on appeal. (Nair III, supra, C061097 & C062004.)

Brian Zulli appeals the order dismissing his complaint against respondents Litton Loan Servicing LP (Litton), and Wells Fargo Bank NA (Wells Fargo),[1] following the sustaining of a demurrer without leave to amend. Appellant contends he sufficiently pled causes of action against respondents for fraud and unfair competition (Bus. & Prof. Code, § 17200), based on their involvement in the nonjudicial foreclosure on his now-deceased mother's residence. We affirm.[2]