CA Unpub Decisions

Plaintiff Michael Patrick Kelly appeals from a judgment after a motion for judgment on the pleadings was entered in favor of defendant Victor A. Hollander. Because we find that the trial court should have allowed Kelly the opportunity to amend his complaint, we reverse.

We remanded this employment case to the trial court to determine (1) if attorney fees are authorized by statute following our reversal of the judgment in favor of plaintiffs, and (2) if fees are authorized, are they warranted by the facts of the case. On remand, both sides submitted demands for attorney fees to the trial court. The court awarded fees to plaintiff former employees as the “prevailing party” under Labor Code section 218.5.[1]
We reverse. Plaintiffs were not the prevailing party: they lost the case because their demands for bonuses were unfounded. Given that plaintiffs had no right to bonuses after they were laid off, defendants’ payment of money to some former employees during the litigation was a gift that cannot be viewed—as a matter of law—as a “catalyst” warranting an award of attorney fees to plaintiffs.

A modification decision.

Petitioner Ronald Martin has been imprisoned since 1995 for a number of felony convictions arising from a carjacking spree. Pursuant to a plea agreement, he received an indeterminate life sentence for one kidnapping charge and an eight-year aggregate determinate sentence for his other crimes—all sentences to run concurrently with one another.[1]
After petitioner had been imprisoned for 14 years, the Board of Parole Hearings (Board) found him suitable for release on parole. It then fixed the term of imprisonment for his life crime and his release date in accordance with its regulations. The Board selected a “base” term of imprisonment of 12 years and then added term “enhancements”—largely for the nonlife crimes—resulting in a total term of imprisonment, with credits, of 34 years 4 months. Thus, while petitioner has been determined to not “pose an unreasonable risk of danger to society if released from prison” (Cal. Code Regs., tit. 15, § 2281, subd. (a))[2] and currently suitable parole, he will, under the term of imprisonment set by the Board, remain in prison for nearly two more decades.

I.L., the mother of A.G., the child at issue in this case, appeals from an order terminating her parental rights under Welfare and Institutions Code section 366.26.[1] She claims the court erred in declining to apply the beneficial parental relationship exception to avoid terminating her parental rights. (§ 366.26, subd. (c)(1)(B)(i).)
We find no error and affirm the termination order.

After a contested jurisdictional hearing, the juvenile court sustained a petition accusing appellant C.R. of misdemeanor battery (Pen. Code, § 242, 243, subd. (a)). The court declared appellant to be a ward of the court and placed her on probation for six months. On appeal, she challenges several of the probation conditions as vague and overbroad, along with a search condition she regards as unreasonable. We find appellant's points to be well taken and therefore will modify the dispositional order.

In the underlying case, the trial court granted plaintiff Soco West, Inc.’s (Soco) motion for judgment on the pleadings and issued a writ of mandate directing defendants California Environmental Protection Agency, Department of Toxic Substances Control and Deborah Raphael, in her official capacity as Director of the Department of Toxic Substances Control (collectively, DTSC) to transfer the cleanup of a hazardous waste site from Chapter 6.5 to Chapter 6.8 of Division 20 of the Health and Safety Code upon Soco’s written request. We affirmed that judgment as modified. (Soco West, Inc. v. California Environmental Protection Agency et al. (Feb. 28, 2013, G046549) [nonpub. opn.].)
Soco moved for attorney fees under Code of Civil Procedure section 1021.5 (all further statutory references are to this code); the court denied the motion on the ground Soco had presented no evidence of its private interest or motivation for filing the lawsuit. Soco filed a motion for reconsideration, arguing the court had applied the wrong legal standard by requiring it to present evidence of its subjective motives, which raised a new issue entitling Soco to present new evidence. Denying the motion, the court found Soco had failed to present new and different facts as required by section 1008 and rejected the claim it had required Soco to present evidence of its personal motivations.
Soco contends the court applied the wrong evidentiary standard in denying the fee motion and should have granted reconsideration because the ruling raised a new issue. Finding no error, we affirm.

Defendant Israel Ramirez appeals his sentence following his conviction by a jury on charges of second-degree robbery, use of a deadly weapon, and assault with a deadly weapon.
His sole argument on appeal, which the Attorney General concedes, is that the trial court violated his constitutional right to due process when it improperly imposed a six-year sentence for assault with a deadly weapon concurrent with a robbery count, because both acts constituted an indivisible course of conduct with a single objective. Defendant contends that the court should have stayed the six-year sentence imposed for the deadly weapon assault count pursuant to Penal Code section 654.[1]
We agree with defendant that the sentence on this count should have been stayed pursuant to section 654, and we affirm the judgment as modified.

The court, in a thorny litigation matter over technology licensing and investment fraud, denied a motion to compel arbitration of the issues arising under a cross-complaint. It held that there was an apparent risk of conflicting rulings between an arbitration decision on the cross-complaint and a judgment on the complaint. Moving party and cross-defendant CleanTech Biofuels, Inc. appeals. We affirm. The risk of conflicting rulings is clear.

A jury convicted Alejandro Gonzalez of second degree robbery (count 1; Pen. Code, §§ 211, 212.5, subd. (c); all further statutory references are to this code), assault with a firearm (count 2; § 245, subd. (a)(2)), felon in possession of a firearm (§ 12021, subd. (a)(1)), misdemeanor trespass (§ 602.5, subd. (b)) as a lesser-included offense of gang-related trespass (§ 186.22, subd. (d)), and active gang participation (count 5; § 186.22, subd. (a); hereafter sometimes “street terrorism,” “the (a) count,” or “substantive gang offense”). The jury rejected gang enhancement allegations (§ 186.22, subd. (b)), but found firearm allegations true on count 1 (§ 12022.53, subd. (c)) and count 2 (§ 12022.5, subd. (a)). In a bifurcated proceeding, the trial court found prior conviction allegations true for a prior prison term (§ 667.5, subd. (b)), a prior serious felony conviction (§ 667.5, subd. (a)(1)), and a prior “strike” conviction (§§ 667, subds. (d) & (e)(1), 1170.12, subds. (b) & (c)(1)).
On appeal, Gonzalez challenges the sufficiency of the evidence to support his conviction for active gang participation because he acted alone in committing his offenses. Alternatively, he argues the federal and state Constitutions bar for a sole perpetrator conviction of street terrorism or, at a minimum, section 654 required the trial court to stay sentencing on the (a) count. He also contends no substantial evidence established the primary activities of his gang, a predicate for any gang-related conviction or enhancement, and he insists the trial court violated his confrontation rights by permitting the prosecution’s gang expert to testify concerning his gang’s primary activities.

Robert M. in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders terminating his reunification services at a contested 12-month review hearing (Welf. & Inst. Code, § 366.21, subd. (f))[1] and setting a section 366.26 hearing as to his six-year-old son, Dylan. He contends the juvenile court violated his rights under the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.). Alternatively, he contends the juvenile court erred in finding there was not a substantial probability Dylan could be returned to his custody. We disagree and deny the petition.

Petitioners Terry (father) and S.B. (mother) seek an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders issued at a contested six-month review hearing (Welf. & Inst. Code, § 366.21, subd. (e))[1] terminating their reunification services and setting a section 366.26 hearing as to their one-year-old son, T.W. Father and mother contend they did not receive reasonable reunification services. Therefore, they further contend, the juvenile court erred in terminating their reunification services and setting a section 366.26 hearing. We disagree and deny the petition.

The juvenile court denied petitioner Oscar M. reunification services under Welfare and Institutions Code section 361.5, subdivision (e)(1)[1] at a contested dispositional hearing in November 2012 as to his then one-month-old son because Oscar was incarcerated, serving a sentence in excess of the statutory reunification period. The juvenile court also set a section 366.26 hearing.
Oscar challenges the juvenile court’s denial of services and setting orders in propria persona by filing an extraordinary writ petition. (Cal. Rules of Court, rule 8.452.) He contends his incarceration should not be a bar to reunification. We disagree and deny the petition.

Appellant/defendant Christopher Armstrong pleaded no contest to two felonies based on the sexual assault of two fourteen-year-old girls. He was sentenced to the agreed-upon term of 12 years in prison.
On appeal, his appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We will affirm.