CA Unpub Decisions

In May 2008, Todd Brown purchased a used vehicle, a 2004 Toyota 4Runner, (4Runner) from K Motors, Inc. (Toyota of El Cajon).[1] In March 2009, Brown filed this action against Toyota of El Cajon alleging six causes of action: violation of the Car Buyer's Bill of Rights (Veh. Code, § 11713.18)[2] (first cause of action); violation of the Consumers Legal Remedies Act (CLRA) (Civ. Code, § 1750 et. seq.) (second cause of action); negligence (third cause of action); breach of contract (fourth cause of action); unjust enrichment (fifth cause of action); and violation of the Song-Beverly Consumer Warranty Act (Song-Beverly) (Civ. Code, § 1790 et seq.) (sixth cause of action).[3]

Appointed counsel for defendant Charvone Lamont Clark has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Although we find no errors which favor defendant, we must remand for amendment of the abstract of judgment.

Appellant B.C., mother of the minor L.C., appeals from the juvenile court’s order terminating her parental rights and freeing the minor for adoption. ( "Welf. & Inst. Code, §§ 366.26, 395" Welf. & Inst. Code, §§ 366.26, 395.)[1] She contends the juvenile court erred in denying her "section 388" section 388 petition for modification and in finding that the beneficial parental relationship exception to adoption did not apply. We shall affirm.

Plaintiff Herman Franck, an attorney, represented defendant Robert Barrington, and after Franck sued for unpaid fees, Barrington countersued. The parties arbitrated the dispute, Barrington prevailed, and Franck, representing himself, now appeals from an order confirming the arbitral award. Franck generally seeks review of the merits of the arbitral award. But because Franck does not demonstrate that the arbitrator exceeded its powers, the trial court properly confirmed the arbitral award. Accordingly, we shall affirm.

A jury found defendant Codey Lee Palmer guilty of possession of a firearm by a felon (Pen. Code,[1] § 12021, subd. (a)(1); count 1), possession of a short-barreled shotgun (§ 12020, subd. (a)(1); count 2), and exhibiting a firearm (§ 417, subd. (a)(2); count 3).[2] The jury found not true gang enhancement allegations (§ 186.22, subd. (b)(1)) attached to counts 1 and 2. Outside the presence of the jury, defendant admitted his prior strike conviction and prior prison term.
The trial court sentenced defendant to an aggregate term of eight years four months in state prison, allocated as follows: count 2, six years (three years doubled); count 1, 16 months concurrent with count 2; count 3, a consecutive effective term of 16 months (1/3 the midterm of two years, doubled), and a consecutive one-year term for the service of a prior prison term.[3]
On appeal, defendant first contends that count 3 as charged incorrectly conflated the misdemeanor section 417 charge with the alternate penalty provision contained in section 186.22, subdivision (d) (section 186.22(d)), which resulted in charging error such that count 3 failed to allege a crime.[4] He also raises several sub-issues related to that claim. He further contends that trial counsel was ineffective for failing to object to the charging error and resulting sub-issues; and that section 654 requires that we stay sentence on counts 1 and 3.
The People agree that the sentence on count 1 should be stayed.
We agree with the parties as to count 1. As we will explain, we find no prejudicial error upon consideration of defendant’s remaining contentions.[5] Accordingly, we shall affirm.

A jury found defendant Keith Allen Egly guilty of receiving stolen property ( "Pen. Code, § 496" Pen. Code,[1] § 496) and found true the allegations that he had been convicted of three prior serious felonies. ( "§§ 667, subd. (a), 1170.12, subd. (b)" §§ 667, subd. (a), 1170.12, subd. (b).) Sentenced to 25 years to life, defendant appeals. He contends the trial court abused its discretion in denying both his Romero[2] motion and his motion to reduce his felony conviction to a misdemeanor. (§ 17, subd. (b).) We disagree and shall affirm.

Julie G. (mother) seeks extraordinary writ review of a juvenile court order terminating reunification services and setting a permanency planning hearing for her daughter, Jillian C. (Welf. & Inst.Code, § 366.26.)[1] Mother contends that the court erroneously found that she had failed to participate regularly and make substantive progress in her case plan. We deny the petition.

Mother A.D. appeals from the juvenile court orders taking jurisdiction of her son, A.C., and removing the child from her custody. She contends there was insufficient evidence to support those orders, and that the juvenile court erred by admitting certain hearsay evidence. We disagree with her contentions and affirm those orders.

William Ferrales appeals from a judgment on demurrer entered in favor of Aurora Loan Service LLC (Aurora) on appellant's second amended complaint for negligent misrepresentation, violation of the Rosenthal Fair Debt Collection Practices Act (Rosenthal Act; Civ. Code, § 1788 et seq), promissory estoppel, and rescission. We affirm.

T.S., Sr., (Father) appeals from orders of the juvenile court finding jurisdiction over his son, T.S., Jr. (T.S.), under Welfare and Institutions Code section 300, subdivision (b)[1] based on Father’s conviction of assault with a deadly weapon (not involving T.S.) and denying Father family reunification services under section 361.5, subdivision (e)(1). We reverse both orders and remand the case with directions to hold a hearing to determine whether Father should be awarded custody under section 361.2.

J.A. (father) appeals from orders declaring his sons Alexis and Jason dependents of the court and removing them from father’s custody. We hold that the court applied an incorrect standard in finding that father’s sons are at “substantial risk” of being molested by father. (Welf. & Inst. Code, § 300, subds. (d) & (j).)[1] Accordingly, the jurisdictional and dispositional orders are reversed and the matter remanded for retrial if the Los Angeles County Department of Children and Family Services (DCFS) wishes to proceed with the matter.

Agustine Martinez appeals from the trial court’s denial of his motion to withdraw his guilty plea. Martinez, who is not a United States citizen, asserts on appeal that he received ineffective assistance of counsel because he was not advised of the immigration consequences of his guilty plea. We affirm the trial court’s ruling.

In Elder v. The Schwan Food Company (May 12, 2011, B223911) [nonpub. opn.]) (Elder I), the jury concluded by special verdict that plaintiff Fred Elder was misclassified as an exempt employee and worked nine hours a day, and 45 hours per week. Elder was awarded $9,944.42, in unpaid overtime wages, which was limited to the three-year period preceding the filing of his complaint. The trial court did not award restitution for a violation of California’s unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.)[1] and denied Elder’s request for civil penalties under The Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.). (Elder I, at [pp. 3-4].) We remanded the matter to the trial court to reconsider awarding restitution under the UCL because the court could not disregard the jury verdict that the Schwan Food Company (Schwan) violated the Labor Code.[2] (Id. at [pp. 5 -7].) We also concluded in Elder I that the trial court had discretion to reduce the maximum amount of civil penalties awarded under PAGA, but it had no discretion to outright deny civil penalties. (Id. at [pp. 9-12]. )
Following remand, the trial court awarded Elder a fourth year of unpaid overtime wages as restitution under the UCL and also awarded civil penalties. Schwan appeals, contending reversal is mandated because the company was deprived of its right to request and obtain a statement of decision as the trial court never announced a tentative decision before ruling on the matter. Schwan also contends the trial court disregarded the company’s equitable defense under the erroneous belief that it was bound by the law of the case doctrine to accept the procedural recitation in Elder I, in which we stated that the jury had rejected the company’s defense to the overtime claim that Elder was properly classified as an exempt employee. We affirm.

In January 1997, Robert Shtofman, a lawyer, purchased a new Mercedes-Benz S420 from Calstar Motors, Inc. (a Mercedes-Benz dealership) for roughly $78,000. In August 2004, after Shtofman had driven his S420 for more than 132,000 miles, he sued Mercedes-Benz USA, LLC, Calstar, and Decio Atkinson, a worker in Calstar’s service department. Shtofman’s complaint alleged five causes of action, listed respectively: breach of contract (against Calstar) for failing to repair problems with his vehicle as promised; breach of warranty (against Calstar and Mercedes-Benz); fraud (against all defendants) based upon alleged misrepresentations about the nature of the problems with the vehicle; negligent repair (against all defendants); and negligent hiring and training of service employees (against Calstar). Shtofman’s complaint prayed for compensatory damages, emotional distress damages, and punitive damages.
In late 2005, Mercedes-Benz, Calstar and Atkinson filed three separate motions for summary judgment or, in the alternative, summary adjudication of issues (MSAI) of each of Shtofman’s causes of action. At the same time, Shtofman filed a MSAI on his cause of action for breach of warranty against Calstar and Mercedes-Benz. The parties argued the motions to the trial court and the court took the matters under submission. In March 2006, the trial court signed and entered a formal order granting Shtofman’s MSAI of his cause of action for breach of warranty against Calstar and Mercedes-Benz, and denying the motions filed by Mercedes-Benz, Calstar and Atkinson.
After the trial court entered the MSAI order on Shtofman’s breach of warranty cause against Calstar and Mercedes-Benz, Shtofman agreed to dismiss his remaining causes of action, and requested judgment be entered in his favor based on the MSAI order. Shtofman also filed a motion for attorney fees, which the trial court granted. In October 2006, the court signed and entered a final judgment which provided that Shtofman was to recover $87,246.63 in compensatory damages, plus attorney fees in the amount of $136,800, with the total award payable by Mercedes-Benz and Calstar, jointly and severally.[2] The judgment ordered Shtofman to return his S420 to Calstar, and to execute all documents necessary to transfer title and ownership of the vehicle to Mercedes-Benz.
On a prior appeal, we reversed the judgment. (See Shtofman v. Mercedes-Benz of North America, Inc. (Aug. 29, 2008, B195677) [nonpub. opn.].) We remanded the case to the trial court with directions to enter a new and different order denying Shtofman’s MSAI of his breach of warranty cause of action against Calstar and Mercedes-Benz, and to enter a different order granting Mercedes-Benz’s MSAI of the same, and Calstar’s MSAI of the same. Further, because Shtofman had dismissed his remaining causes of action in reliance on the MSAI orders vacated, we also directed the trial court to relieve Shtofman from his dismissal of those causes of action. The clerk of our court issued the remittitur on November 24, 2008; the clerk of the superior court filed the remittitur on November 26, 2008.
On August 25, 2009, the trial court granted a motion for summary judgment filed by Mercedes-Benz. At a status conference in February 2011, the court set the cause for trial on September 19, 2011. The parties at the status conference were Shtofman, Calstar and Atkinson.
On August 25, 2011, Calstar and Atkinson filed a document entitled “motion in limine” in which they argued that Shtofman’s action was subject to mandatory dismissal pursuant to section 583.310 for failure to bring it to trial within five years. At a hearing on September 21, 2011, the trial court ruled that it was granting Calstar and Atkinson’s motion to dismiss. On November 2, 2011, the trial court entered a judgment of dismissal in favor of Calstar and Atkinson, and, on November 21, 2011, Calstar and Atkinson served notice of entry of the judgment of dismissal.
On January 3, 2012, Shtofman filed a notice of appeal from the judgment of dismissal as to Calstar and Atkinson.