CA Unpub Decisions

Michael B. (father) appeals from the juvenile court’s order terminating his parental rights as to minors C.B., Matthew B., M.B., and Phillip B. (Welf. & Inst. Code, § 395.)[1] Father contends the court erred by denying his petition to modify court orders (§ 388) and by failing to conduct an adequate investigation under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We shall affirm.

In a case involving allegations of medical negligence, plaintiff and petitioner, the mother of decedent, petitioned for a writ of mandate to set aside a summary judgment granted by respondent trial court because, according to the trial court, the defendants, real parties in interest, had submitted sufficient evidence of lack of causation and therefore non liability and plaintiff had failed to submit sufficient evidence that any negligence by the defendants proximately caused the death of decedent. The trial court determined that the declaration of plaintiff’s expert did not contain a sufficient explanation for his opinion as to proximate cause and therefore was not admissible nor sufficient.
We hold that although defendants submitted admissible evidence as to lack proximate cause, the expert for plaintiff did submit sufficient, admissible evidence of negligence and proximate cause to establish a triable issue of fact. We therefore reverse the summary judgment as to certain negligence causes of action against the real parties in interest.

Appellant J.L. (father) appeals from the October 1, 2012 order denying his request that his dependent daughter, A.L., be removed from foster care and placed with father’s childhood friend, T.D. Father contends the juvenile court erred in finding that T.D. was not a “nonrelative extended family member” (NREFM) within the meaning of the Welfare and Institutions Code.[1] We affirm.

Cynthia R., mother of Joshua G., appeals from the order terminating her parental rights pursuant to Welfare and Institutions Code section 366.26.[1] Mother contends that the juvenile court erred in terminating her parental rights because it should have applied the sibling-relationship exception to termination under section 366.26, subdivision (c)(1)(B)(v). We disagree and thus affirm the order.

Minor J.P. appeals after the juvenile court sustained a petition alleging he committed first degree robbery (Pen. Code,[1] § 212.5, subd. (a)), assault by means of force likely to product great bodily injury (§ 245, subd. (a)(1)), and resisting arrest (§ 148, subd. (a)(1)), and that in committing the robbery and assault, he personally inflicted great bodily injury (§ 12022.7, subd. (a)). On appeal, he challenges the conditions of his probation. We shall order the weapons and alcohol conditions modified, and otherwise affirm the judgment.

After an administrative law judge found appellant Patricia A. Tompkins to have committed multiple violations of Marin County’s planning code, she was ordered to abate the underlying nuisances, pay a $20,000 fine and reimburse the county for abatement costs of more than $12,000. She petitioned the trial court for a writ of administrative mandate, but the administrative ruling was upheld and judgment was issued in favor of respondent Marin County Community Development Agency. Tompkins appeals, challenging the trial court’s determination on various grounds. We affirm the judgment.

Del Norte County approved subdivision developments on two residentially-zoned parcels of land owned by JHP LLC (JHP). The California Department of Forestry and Fire Protection (Department) identified those parcels as timberland under the Z’berg-Nejedly Forest Practice Act of 1973 (Pub. Resources Code, § 4511 et seq.[1]; hereafter Forest Practice Act) and required JHP to apply for timberland conversion permits (or exemptions from the permit requirement) and for approval of timber harvest plans (THP’s) to cut or remove trees from the parcels. The Department also undertook an environmental review as part of the THP approval process as to one of the parcels, even though the county had already conducted an environmental review of the underlying subdivision project pursuant to the California Environmental Quality Act (CEQA), section 21000 et seq.
JHP petitioned for a writ of mandate in the trial court alleging respondents wrongfully classified JHP’s parcels as timberland and required duplicative environmental review. JHP first argues the parcels cannot be classified as timberland under the Forest Practice Act, because they have been locally zoned residential (citing Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139 (Big Creek/Santa Cruz) [local zoning may render land not available for growing a crop of trees and thus not timberland as defined by the Forest Practice Act]). The trial court granted judgment on the pleadings to the Department on this issue, and we affirm. Assuming that local land use regulation could render land not available for growing a crop of trees, as suggested in Big Creek/Santa Cruz, JHP has not pled facts sufficient to show that the Del Norte County land use regulations have done so. Moreover, the county’s approval of the specific subdivision development projects on JHP’s parcels do not render the parcels nontimberland because the Forest Practice Act expressly grants the Department jurisdiction over conversions of timberland to nontimberland use.
JHP also argues the Department’s environmental review as part the THP process is duplicative of the county CEQA review of the underlying subdivision project and thus violates section 21166, which restricts subsequent or supplemental environmental reviews. The trial court granted judgment on the pleadings in favor of the Department on this issue as well. We reverse. We find that JHP’s claim cannot be resolved without development of a factual record.

Anthony Betchart (Tony), Ludgwig Betchart, Inc. (LBI), Elizabeth Enterprises, Inc. (Elizabeth), and CENA, LLC (CENA) filed a complaint for declaratory relief pursuant to Code of Civil Procedure section 1060[1] and for injunctive relief against Waldtraut Betchart (Wally), Tony’s mother. This declaratory action sought to enforce alleged oral agreements between Wally, her husband, and Tony, and to prevent the enforcement of provisions in a trust executed by Wally and her husband. Wally, in her capacity as the trustee, filed a cross-complaint against Tony to partition properties that were used by LBI, the family business.
The trial court granted Wally’s nonsuit against the complaint for declaratory and injunctive relief, and Tony appealed. Subsequently, the trial court granted summary judgment in favor of Wally on her cross-complaint for partition, and Tony appealed. At Tony’s request, we consolidated the appeals.
We affirm the nonsuit order as declaratory relief under a trust is not permitted under section 1060 and Tony’s pleading requires the court to interpret and assess the validity of a trust. We also affirm the interlocutory judgment for partition. Wally provided undisputed evidence that she was entitled to partition. (See §§ 872.710 & 872.720, subd. (a).)

In 2009 a bus carrying 34 French tourists and their guide overturned, killing four (plus the driver) and injuring many others. Plaintiffs sued multiple defendants for negligence, wrongful death, and related causes of action, along with a claim of strict liability under the French Code of Tourism. After two years of discovery and settlements with some of the defendants, the remaining three defendants sought a stay or dismissal under the doctrine of forum non conveniens, on the ground that France was a more suitable forum to try the plaintiffs' claims. The trial court stayed the action pending acceptance of jurisdiction by a French court.
On appeal, plaintiffs contend that the court's ruling was erroneous because the public and private interest factors compelled retention of the case in California, where the accident occurred and where the victims received medical treatment by emergency and hospital personnel. After considering the suitability of France as an alternative forum and reviewing the trial court's balancing of the requisite facts, we find no abuse of discretion and therefore must affirm the order.

A jury convicted defendant Chris Motuga of all four counts of which he was accused in the operative information: (1) continuous sexual abuse of a child under the age of 14 (Pen. Code, § 288.5, subd. (a));[1] (2) lewd act on a child under the age of 14 (§ 288, subd. (a)); (3) lewd act on a child who was 14 or 15 years old and at least 10 years younger than defendant (§ 288, subd. (c)(1)); and (4) assault with the intent to commit oral copulation (§ 220). The jury also found multiple victim allegations to be true pursuant to the “One Strike” law (§ 667.61, subds. (b), (e)(4); see Stats. 2006, ch. 337, § 33, pp. 2163-2165 [version of statute apparently utilized by court in citing § 667.61, subd. (e)(5) for multiple victim enhancement]), as count 1 pertained to victim No. 1 and count 2 pertained to victim No. 2. The court sentenced defendant to a total prison term of 34 years to life. Although we affirm the judgment of conviction, we reverse the judgment with regard to defendant’s sentence and remand for resentencing.

In July 2011, appellant, Cynthia L., a minor, pled no contest to a single count of attempted first degree burglary (Pen. Code, §§ 459, 460, subd. (a), 664). In August 2011, the juvenile court adjudged appellant a ward of the court and placed her on probation, with various terms and conditions.
In April 2012, a supplemental wardship petition (Welf. & Inst. Code, § 777) was filed in which it was alleged appellant committed multiple noncriminal violations of probation; appellant admitted the allegations; and the court continued appellant as a ward of the court and continued her on probation. Her conditions of probation included several that refer to criminal street gangs that had not been previously imposed, including the directive that she “not associate or communicate with any person that [she] know[s] is a gang member ....”[1]
On appeal, appellant contends the gang association condition is unconstitutionally overbroad. We affirm.

Defendant Sarah Marie Jacobs pled guilty to one count of selling marijuana (Health & Saf. Code, § 11360, subd. (a)) and one count of possession of marijuana for sale (id., § 11359). She was sentenced to five years’ probation and ordered to serve four months in the county jail in accordance with her plea. Defendant contends and respondent concedes that she must be allowed to withdraw her plea as unenforceable; it was conditioned upon her preserving the right to appeal a pretrial ruling by the trial court. We find defendant’s plea was induced by an unenforceable promise and, therefore, she is entitled to withdraw her plea.

Appellant N.D. is the father of E.D., N.D., Jr., D.D. and N.D., all of whom were removed from his home by respondent Kern County Department of Human Services in August 2011. He appeals from the juvenile court’s orders finding dependency jurisdiction over the children and continuing the children’s removal from his home during the provision of reunification services. This appeal is related to the mother’s appeal, In re N.D. (Dec. 19, 2012, F064583) (nonpub. opn.), in which we affirmed the juvenile court’s dispositional order regarding the youngest child, N.D. We will affirm here as well.

Defendant Lee Derrick Brown alleges that his trial attorney was ineffective because he failed to object to the imposition of a $10,000.00 restitution fine. We decline to find counsel ineffective, but will remand the matter to afford the trial court the opportunity to exercise its discretion regarding the amount of the fine.