CA Unpub Decisions

This is the second of two companion appeals arising out of the litigation following the death of Monroe Marsh (Monroe) in 2009 at an age no less than 94. The first appeal we have termed, after the last two digits of its docket number, the “38 appeal.” This is the “74 appeal.” As was the case with the 38 appeal, the haphazard nature of the record assembled by the appellant’s attorney requires us to take judicial notice of the companion appeal to compile a coherent narrative.
The basic story is told in the 38 appeal. That appeal covers most of the events in the litigation from Monroe’s death in late 2009 to the sustaining of a demurrer to a will contest filed by appellant Jane Marsh (Jane) in early March 2011. The focus of the 38 appeal is the dismissal of Jane’s first civil action, what we have called the “4291 civil action” after the last four digits of its trial court docket number. The 4291 civil action attacked Monroe’s will on the theory that, as his surviving “partner,” Jane succeeded to the entirety of his estate as a matter of California “partnership” law.

When two people marry in California, the separate property which they each bring to the marriage does not automatically become community property, or property of a marital “partnership,” even though California law does impose a “fiduciary relationship” of each of the spouses which is “subject to the same rights and duties of nonmarital business partners” as provided in three enumerated sections of the Corporations Code. (See Fam. Code, § 721.) The idea that “the “incorporation” of those sections of the Corporations Code “imposes on a spouse all the duties and obligations of an officer or a director of a corporation” has been explicitly repudiated in In re Marriage of Leni (2006) 144 Cal.App.4th 1087, 1092 (Leni). Moreover, the idea that the fiduciary relationship imposed on spouses automatically transforms all of their property into community or “partnership” property supposes nothing less than the wholesale repeal of the entire edifice of California marital property law as set forth in the Family Code. Accordingly, we affirm the dismissal of a separate civil action filed by appellant Jane Marsh (Jane) against the estate of her late husband, Monroe Marsh (Monroe), predicated on the idea that, upon their marriage, all of his separate property investments became either community or “partnership” property to which she succeeded upon his death.

Plaintiff and appellant Luz Elena Cano, M.D., appeals from a postjudgment order denying her motion to tax costs and awarding defendant and respondent Anaheim Arena Management, LLC, aka Honda Center (Arena Management) expert witness fees under Code of Civil Procedure section 998. (All statutory references are to the Code of Civil Procedure unless otherwise noted.) Under section 998, Arena Management offered to settle Cano’s personal injury claims for $100,001 and a costs waiver, but Cano rejected that offer. After the trial court granted its summary judgment motion, Arena Management filed a memorandum of costs seeking $18,957 in expert witness fees because Cano failed to obtain a judgment more favorable than the section 998 settlement offer.
Cano contends the trial court abused its discretion in awarding Arena Management expert witness fees because the serious injuries she suffered made the settlement offer unreasonable. Cano, however, failed to show any likelihood Arena Management would have been held liable for her injuries or that Arena Management’s offer bore no relation to the monetary damages she suffered. Accordingly, we find no abuse of discretion and affirm the trial court’s ruling.

Defendant Fernando Mariscal, Jr., appeals from an order denying his request to adjust sentencing credits based on the retroactive application of an amendment to Penal Code section 4019.[1] Even were we to apply the amendment retroactively, we would conclude that defendant was not entitled to an adjustment in his sentencing credits. Consequently, we affirm.

The juvenile court detained eight-year-old Devin P. and his two younger half-siblings (collectively the children) after the children’s mother, Kristi R. (mother), who had been undergoing drug treatment, relapsed and became homeless. Devin had been living with his maternal great-uncle Donnie M., who had cared for Devin since he was an infant but had never obtained legal guardianship. During dependency proceedings, the juvenile court denied Donnie’s motion to be declared Devin’s presumed father or, in the alternative, his legal guardian. Donnie appeals, contending the juvenile court erred in denying the motion. Finding no merit to his contentions, we affirm.

Following a jury trial, defendant Gary Eshawn Barron was convicted of one count of second degree robbery (Pen. Code,[1]§ 211) and one count of elder abuse (§ 368, subd. (b)(1)). The jury found true the elder abuse enhancement allegation pursuant to section 667.9, subd. (a). Following a jury trial on the priors, the jury returned true findings as to the allegations that defendant suffered a prior conviction of a serious or violent felony (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), had one prison prior (§ 667.5, subd. (b)), and had one strike prior (§ 667, subd. (a)(1)). Defendant was sentenced to state prison for a total term of 13 years, consisting of the midterm of six years on count 1 with an additional term of one year for the elder enhancement, five years for the serious felony prior, and one year for the prison prior. Defendant appeals, challenging the admission of the victim’s infield identification, the exclusion of his girlfriend’s testimony regarding the arresting officer’s prior arrest of defendant, and the one-year prison prior enhancement.

Defendants County of Riverside (County) and Riverside County Sheriff’s Department (Department) appeal from a judgment on a petition for writ of administrative mandamus that upheld the decision of the Department to terminate plaintiff Peter Herrera from his employment as a sheriff’s lieutenant but nonetheless awarded Herrera over two years of back pay. Defendants contend: (1) the trial court exceeded its authority when it attempted to fashion a remedy under the Memorandum of Understanding (MOU) that governed relations between defendants and Herrera; (2) the remedy of back pay may not be awarded in the absence of a Skelly[1] violation; and (3) Herrera waived his procedural objections and did not enter the proceedings with clean hands.
Herrera appeals from his termination from employment. Herrera contends: (1) the trial court erred in denying his petition for reinstatement because the due process error in failing to provide a clear statement of reasons in the Notice of Intent (NOI) was never cured by the administrative hearing; (2) the NOI requirement in the MOU is more stringent than the statutory NOI requirement, and relevant decisions of the State Personnel Board uniformly order reinstatement as the remedy for a defective NOI; (3) the remedy the trial court provided is deficient as a matter of law; and (4) the trial court erred in finding that the factual determinations of the Administrative Hearing Officer warranted termination.
We conclude the trial court erred in awarding Herrera back pay. We therefore affirm the trial court’s denial of Herrera’s petition for reinstatement, but we reverse the award of back pay.

In In re Sade C., the California Supreme Court held that review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting his custody of a child or his status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) We therefore deny appellant's requests to review the record for error and to address the Anders issue. (Anders v. California (1967) 386 U.S. 738.)

On April 24, 2009, seven-year-old Joel H. was in the bathroom of a McDonald's fast food restaurant. When Joel came out of the restroom, Michael Raymond Bauer followed and gave Joel some paper towels. Joel told his mother Bauer was "crazy" and had touched Joel. Bauer quickly left the establishment. Joel's mother immediately reported the incident to trolley security officers. In an interview after the event, Joel reported that Bauer helped him wash his hands, then pushed him against the wall and put his hands down Joel's pants, and touched Joel's penis.
In a felony complaint filed by the District Attorney of San Diego County on July 13, 2009, Bauer was charged with one count of violating Penal Code[1] section 288, subdivision (a). On March 19, 2010, an information was filed (case No. CS230471).
On December 17, 2009, Bauer initialed and signed an acknowledgement of constitutional rights for those intending to represent themselves. The form, required pursuant to People v. Lopez (1977) 71 Cal.App.3d 568, sets forth the waiver of rights occurring on a plea of guilty or no contest.
On December 21, 2010, pursuant to a plea agreement in which he represented himself, Bauer entered a plea of guilty to the charged offense. He was placed on five years' formal probation with certain conditions, including not associating with minors, nor being in places where minors congregate unless with an adult approved by the probation officer. Bauer received credit for time served and was required to register as a sex offender pursuant to section 290.

Lee Roy Lynch shot his girlfriend in the chest. When the girlfriend recovered, they moved to Arizona and married. About five years and four months after the shooting, Lynch was arrested and charged with attempted murder (count 1) and several other felonies arising from the shooting (counts 2 through 6). A jury convicted Lynch of the charged crimes, and the court sentenced Lynch to prison for 17 years.
This is Lynch's second appeal. In his first appeal, Lynch challenged his conviction on numerous grounds, including that the trial court erred in denying his posttrial motion to dismiss counts 2 through 6 as barred by the three-year limitations period. (People v. Lynch (2010) 182 Cal.App.4th 1262 (Lynch I).) We rejected each of these contentions, except that we remanded the case "to the trial court for the limited purpose of holding a hearing to determine whether Lynch's prosecution on counts 2 through 6 was time-barred." (Id. at p. 1265.) On remand, the trial court held an evidentiary hearing and found Lynch's prosecution on these counts was timely because the statute of limitations was tolled while Lynch lived in Arizona. The court then reinstated the judgment as to counts 2 through 6.
In this appeal Lynch challenges the trial court's factual finding that he was outside California for a sufficient time to toll the limitations period. We conclude substantial evidence supports the trial court's factual finding and affirm the order reinstating Lynch's conviction.

Darlene W., mother of the minor (mother), appeals from the judgment of disposition denying her services. (Welf. & Inst. Code, §§ 358, 360, 395.)[1] Mother contends the juvenile court erroneously applied the provisions of section 361.5, subdivisions (b)(10) and (11), to deny her services. Based upon a previous unpublished decision by this court in case No. C068124, which decided the identical issues in mother’s favor, when ruling on a petition for extraordinary writ that mother filed as to the minor’s half sibling, the San Joaquin County Human Services Agency (Agency) concedes the judgment must be reversed and the case remanded to the juvenile court for further hearing.[2] We shall accept the concession as the necessary outcome of our previous ruling, reverse the judgment of disposition and remand for further hearing.

L.C., mother of the minors (mother), appeals from orders of the juvenile court entered at the six-month review hearing. (Welf. & Inst. Code, §§ 366.21, subd. (e); 395.)[1] Mother contends: (1) the court erred in finding services were reasonable; (2) the court erred by not ordering the Department[2] to provide transportation assistance for substance abuse treatment services; and (3) there was insufficient evidence to support the court’s finding of detriment to the minors in returning to mother’s care. We conclude there is ample evidence supporting the juvenile court’s conclusion that reasonable services were offered and provided to mother. With regard to her claim that the court erred in not ordering further mileage reimbursement for substance abuse treatment services, mother did not request the court to order such assistance and has forfeited this issue. Finally, we conclude there is substantial evidence to support the court’s finding of detriment to the minors if they were returned to mother. For these reasons, we affirm.[3]

This appeal involves a dispute between adjacent landowners over a 40-foot strip of land running along the eastern boundary of the plaintiffs’ property. The defendants claim a right to use the strip as a road for vehicular traffic on the grounds either that the plaintiffs never owned it or that they had obtained an easement by prescription. The trial court concluded that the plaintiffs owned a fee simple interest in the strip but that the defendants only had a prescriptive interest in the strip as a path for foot traffic.
The defendants, Richard and Mildred Henderson, acquired the property located at 8801 Sunset Avenue in Fair Oaks in 1963. Since 2003, that property has been owned by the Henderson 2003 Family Trust. The trustee of that trust is defendant and cross-complainant John P. Henderson.[1] Plaintiffs and cross-defendants Norman and Jonelle H. Scheel acquired the northern portion of their property in 1985 and the southern portion in 1998. Their address is 4825 Arbardee Drive in Fair Oaks.[2]
From 1963 until the early 1970s, the Hendersons’ sole means of accessing their property was on a dirt roadway that ran along the eastern edge of what is now the Scheels’ property. While the Henderson property’s address is 8801 Sunset Avenue, the property does not actually abut Sunset Avenue.
In late 1971, Arbardee Road, which abuts the northwest corner of the Hendersons’ property “opened up,” and they began using Arbardee Road to access their property by car. They continued to use the old roadway for pedestrian and recreational use.

Mother and father appeal from the judgment entered by the juvenile court with respect to their minor daughter under Welfare and Institutions Code section 300.[1] The court found the minor’s testimony regarding alleged sexual abuse, alcohol abuse and domestic violence not credible and struck all of the allegations of the section 300 petition. Nevertheless, the court sua sponte purported to amend the petition to conform to proof by adding and sustaining a new allegation that the parents were neglectful in failing to obtain a mental health assessment and treatment for the minor’s “undiagnosed mental health issues.” We reverse, finding the parents failed to receive adequate notice and a reasonable opportunity to be heard concerning the new allegation in violation of their right of due process.