CA Unpub Decisions

Plaintiff and respondent Duke Kelso Construction, Inc. (Contractor) sued defendants and appellants John Albert Silva (Silva) and Susan Silva (jointly Owners)[1] for breach of contract and other claims arising out of the construction of a single family residence in Soledad, California. Contractor was the general contractor for the project. After several months on the job, Contractor stopped working because of alleged breaches by Owners, including delaying payment and interfering with the parties’ written cost plus contract by hiring their own subcontractors and suppliers. In a court trial, the court awarded Contractor $52,294.30 in contract damages. Owners appeal from the $52,294.30 judgment and from an order after judgment awarding Contractor $53,185 in attorney fees.
The parties’ cost plus contract entitled Contractor to “costs incurred by the contractor,” plus 15 percent profit and overhead based on those costs. Owners contend on appeal that the court erred when it awarded Contractor 15 percent of the amounts paid directly by Owners to certain suppliers and subcontractors hired directly by Owners because those were not costs incurred by Contractor. Owners also challenge the sufficiency of the evidence to support the award in favor of Contractor, including attorney fees. And with respect to attorney fees, Owners argue that Contractor waived any claim to attorney fees because the contract required the parties to arbitrate rather than litigate disputes.
We conclude that Contractor was entitled to profit and overhead on amounts Owners paid directly to vendors. But certain mathematical errors were made in the calculation of the award, and Contractor was not entitled to amounts billed for its superintendent’s time or for profit on amounts billed for extraordinary accounting expenses. Since those amounts are readily discernible, we shall modify the judgment to adjust for these errors, thereby reducing the judgment by $10,038.79 to $42,255.51. As modified, we will affirm the judgment, and we will also affirm the award of attorney fees.

Bella Terra Office JV, LLC (Bella Terra), obtained a loan to acquire three office buildings and two retail buildings in a retail center in Huntington Beach (the Property). Bella Terra executed a deed of trust in favor of the lender, granting it a security interest in certain real and personal property. U.S. Bank, N.A., as Trustee for the Registered Holders of ML-CFC Commercial Mortgage Trust 2007-7, Commercial Mortgage Pass-Through Certificates Series 2007-7, acting by and through Midland Loan Services, a division of PNC Bank, N.A., its Special Servicer (U.S. Bank), is the successor to the lender who made the loan to Bella Terra to acquire the Property. After Bella Terra defaulted on the loan, a receiver was appointed to oversee the Property.

Appellant Davis Family Capital Partners, Inc. (DFCP) appeals from the trial court’s judgment dismissing its complaint in a shareholder derivative action after the trial court sustained the demurrer to the second amended complaint. DFCP contends the trial court erred in requiring it to post a bond under Corporations Code section 800, in sustaining the demurrer, and in awarding attorney fees as liability on the bond. We affirm.
The trial court did not err in sustaining the demurrer or requiring a bond be posted as a condition of maintaining the derivative action. The issue of the order awarding attorney fees as liability on the bond is not properly before us as it was made after DFCP filed its notice of appeal and, although such an order is appealable as an order after judgment affecting the substantial rights of the parties (Code of Civ. Proc., § 904.1, subd. (a)(2)), DFCP did not appeal from that order.

Defendant Isaac Garza Cordero was convicted of attempted premeditated murder and street terrorism. He was sentenced to 32 years to life in prison. On appeal, defendant argues the trial court prejudicially erred by failing to instruct the jury on accomplice testimony. While we agree that the court erred by failing to give such an instruction, the error was harmless because there was sufficient evidence to corroborate the testimony of the alleged accomplice.
Defendant also argues his trial counsel was ineffective for failing to object to the admission of testimony regarding defendant’s prior arrests. Having reviewed the record, we conclude that, in one instance, counsel did object to the testimony. In two other instances, assuming for purposes of this appeal that counsel should have objected to the testimony, there was no prejudice to defendant. Therefore, he did not receive ineffective assistance of counsel.

A jury convicted defendant Manuel Alejandro Martinez of first degree murder (count 1; Pen. Code, § 187, subd. (a))[1] and found true the special circumstance of murder committed for street gang purposes (§ 190.2, subd. (a)(22)), and that he committed the murder to benefit a criminal street gang (§ 186.22, subd. (b)(1)). The jury also convicted him of street terrorism (count 2; § 186.22, subd. (a)). In a bifurcated trial, the court found defendant suffered one prior serious and violent felony conviction (§§ 667, subds. (d) & (e)(1), 1170.12, subds. (b) & (c)(1)), and one prior street terrorism conviction (§ 667, subd. (a)(1)), and had served a prior prison term (§ 667.5, subd. (b)). The court sentenced defendant to life in prison without the possibility of parole on count 1 and imposed (and stayed) a 10-year term for the associated gang enhancement. The court sentenced defendant to a concurrent four-year term on count 2. Finally, the court sentenced defendant to a five-year term for the prior street terrorism conviction, to be served prior to the count 1 sentence.

Appellant Abraham M. was committed to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ), after it was found true that he had committed willful, deliberate and premeditated attempted murder (count 1); assault with a deadly weapon (count 2); assault by means likely to produce great bodily injury (count 3); robbery (counts 4 and 5); burglary (count 6); and conspiracy (count 7). In addition, it was found true that Abraham used a deadly weapon, a knife, and inflicted great bodily injury.

In this matter, we have reviewed the petition and considered the record. Although invited to do so, real party in interest has not filed a response. We have determined that resolution of the matter involves the application of settled principles of law, and that an alternative writ would add nothing to the presentation already made and would cause undue delay in resolving this matter. We therefore issue a peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)

J.H (Father) and Je.H (Mother) were involved in a bitter divorce and custody battle. The Riverside County Department of Public Social Services (the Department) filed a Welfare and Institutions Code section 300[1] petition against Father for their two children, C.H. and N.H., for allegations of abuse, domestic violence between him and Mother, and substance abuse. At a jurisdictional/dispositional hearing , the juvenile court found the allegations in the section 300 petition true, granted reunification services to Father, and granted custody to Mother on a family maintenance plan. Father appeals that order on the following basis:
1. The jurisdictional findings under section 300, subdivisions (b) and (j) that he had committed abuse against C. causing injury, abused alcohol while caring for the children, and committed domestic violence were not supported by the evidence.
2. No substantial evidence supported a finding that C. and N. needed to be removed from his custody to be protected to support the dispositional order.
3. The juvenile court-ordered case plan requirements were overly burdensome and contrary to the unique needs of his family.
I

Defendant Juan Ramon Coronado, Jr., petitions this court to determine that the trial court acted improperly and without substantial evidence in disqualifying the public defender’s office from representing him in the current prosecution for capital murder and being a felon in possession of a firearm. Although we believe there is substantial evidence to show that the public defender’s office has a potential conflict of interest, we conclude that the trial court should have first informed defendant of this conflict and inquired whether he was willing to make a voluntary and knowing waiver of it. Accordingly, we grant the petition and remand the matter to the trial court with direction to make such an inquiry.

Defendant and appellant Jose Saldana appeals after a guilty plea, sentence, and admission to probation. He contends that he should receive additional presentence custody credits under an amended version of Penal Code section 4019.[1] We remand for further proceedings.

Jennifer G. seeks writ review of a juvenile court order terminating reunification services in the dependency case of her daughter, Charlotte G., and setting a section 366.26 hearing. Jennifer contends the evidence is insufficient to support the finding she received reasonable reunification services. We deny the petition.

Dulce G. and Andres A. (the parents) appeal following the dispositional hearing in the dependency case of their daughter, April A. Dulce, joined by Andres, challenges the juvenile court's order removing April from Dulce's custody. We affirm.

Jason Mark Drury pleaded guilty to a single count of committing a lewd or lascivious act upon a child under the age of fourteen. (Pen. Code,[1] § 288, subd. (a); count 18.) Drury appeals the judgment imposing an upper term prison sentence. He contends the matter must be remanded for resentencing because the court (1) failed to adequately state reasons on the record for imposing the upper term and (2) erroneously calculated his presentence conduct credits. We conclude Drury forfeited, and cannot challenge on appeal, any error by the trial court in not citing adequate aggravating factors for imposing the upper eight-year term for count 18 because he did not object below on this ground. Further, in order to forestall an ineffective assistance of counsel claim, we conclude Drury would not be able to establish prejudice by his counsel's performance. We modify the judgment to reflect the correct calculation of conduct credits.

Sergio Oropeza pleaded guilty to transportation of more than four kilograms of cocaine not for personal use (Health & Saf. Code, §§ 11352, subd. (a), 11370.4, subd. (a)(2); Pen. Code, § 1210, subd. (a)), one count of possession of more than four kilograms of cocaine for sale (Health & Saf. Code, §§ 11351, 11370.4, subd. (a)(2)), one count of transportation of more than four kilograms of methamphetamine not for personal use (Health & Saf. Code, §§ 11379, subd. (a), 11370.4, subd. (b)(2); Pen. Code, § 1210, subd. (a)), and one count of possession of more than four kilograms of methamphetamines for sale (Health & Saf. Code, §§ 11378, 11370.4, subd. (b)(2)). The trial court sentenced him to five years in prison.
Before pleading guilty, Oropeza filed two motions to suppress the evidence against him: an initial motion under Penal Code section 1538.5, subdivision (a), and a renewed motion under subdivision (i). In the motions, he argued the officers who conducted the vehicle stop leading to his arrest lacked reasonable suspicion for the stop. After considering the evidence of the circumstances prompting the stop, the trial court determined the officers had the requisite reasonable suspicion and denied the motions.
Oropeza appeals, contending we must reverse his convictions because the trial court erroneously denied his suppression motions. We disagree and affirm the judgment.