CA Unpub Decisions

This action arises out of a $250,000 loan plaintiff Yin Falk made to defendant Linda S. Catron. After Catron failed to repay the loan, Falk sued Catron and her agent, Richard E. Warren, Jr. (collectively, defendants) for, among other things, fraud. The trial court granted Falk’s motion for summary adjudication. The court also granted Falk’s motion for an order permitting discovery of defendants’ financial information pursuant to Civil Code section 3295.[1] After a trial on punitive damages, the court ordered defendants to pay Falk $750,000 in punitive damages.
Defendants appeal. Catron claims the court erred by granting summary adjudication on Falk’s fraud claims. Catron also challenges the punitive damages award. She claims there was insufficient evidence she intended to deprive Falk of property or otherwise injure her as required by section 3294. She also argues substantial evidence does not support the finding that she can afford to pay the punitive damages award.
Warren contends the punitive damages award must be reversed because it is disproportionate to his ability to pay and because there was insufficient evidence of his financial condition to support the award. Warren also claims his conduct does not justify an award of punitive damages and that the court misapplied the doctrine of respondeat superior.
We affirm.

L.O. (Father), the presumed father of B.O., L.O., and E.O., appeals from the dispositional order in this dependency case. The juvenile court declared the children dependents of the court (Welf. & Inst. Code, § 300)[1] and ordered them placed in the custody of their mother, D.O. (Mother). Mother was ordered to receive family maintenance services. (§§ 362, subd. (b), 16501, subd. (g).)
On appeal, Father contends the juvenile court erred by failing to make an order regarding his visitation with the children. He further contends that the juvenile court erred by either (1) impliedly finding that proper notice was given under the Indian Child Welfare Act (ICWA) or (2) failing to make any finding regarding the sufficiency of the notice given under the ICWA.
For reasons that we will explain, we will affirm the juvenile court’s dispositional orders.

Defendants Park Vasona Gas, Inc., Francy Amidi, and Anthony J. Ellenikiotis appeal from that part of a judgment awarding attorney fees to plaintiff Lynn Darton after plaintiff prevailed at trial in a dispute over his sale of a gas station to defendants. They contend that plaintiff was not entitled to attorney fees because he failed to propose mediation of the dispute before suing, as required by the sales contract. We agree with other courts that the contract means what it says: plaintiff’s failure to seek mediation precludes an award of attorney fees. But we agree only insofar as the prosecution of plaintiff’s complaint is concerned. Plaintiff also prevailed on a cross-complaint for breach of the sales contract brought by Park Vasona and is entitled to recover defensive attorney fees from Park Vasona. We therefore reverse the judgment and remand the matter for consideration of an award for plaintiff’s defensive attorney fees.

In 2008, the trial court granted the motion of cross-defendant and respondent Jensen Enterprises, Inc. dba Jensen Precast (Jensen) for summary adjudication of the causes of action for express indemnity and breach of written contract in cross-complainant and appellant Marco Crane and Rigging Co.’s (Marco) cross-complaint. The complaint was dismissed in 2011 at plaintiffs Gail and Gene Gran’s request. Marco appeals from that dismissal, seeking to reverse the order granting adjudication on the cross-complaint. We affirm.

Appellant/defendant Harold Scott Ball and three associates were charged with multiple felony offenses and gang enhancements based on their assault on a man who allegedly owed them money from a drug deal. Defendant entered into a negotiated disposition and pleaded no contest to count I, felony assault by means likely to produce great bodily injury (Pen. Code,[2] § 245, subd. (a)), with an enhancement for the personal infliction of great bodily injury (§ 12022.7, subd. (a)); and count VII, misdemeanor street terrorism (§ 186.22, subd. (a)(1)). He was sentenced to the stipulated term of seven years.
Defendant filed a notice of appeal and obtained a certificate of probable cause, and contends his constitutional right to a speedy trial was violated. The People assert that he waived any alleged speedy trial issues by entering into the negotiated disposition. We agree with the People and will dismiss the appeal.

Petitioner A.E. (father) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile court’s order denying reunification services as to his children, A.E.[1] and E.E. (the children), and setting a Welfare and Institutions Code[2] section 366.26 hearing. Father argues that the juvenile court erred in denying him reunification services under section 361.5, subdivisions (b)(10) and (e)(1). We deny his writ petition.

Defendant and appellant Juan Pulido contends that he is entitled to additional presentence conduct credits pursuant to Penal Code[1] section 4019, for time spent in custody between October 1, 2011 and October 21, 2011. We reject his contention and hold that section 4019, as amended April 1, 2011 and operative October 1, 2011, applies only to defendants convicted of crimes which took place before October 1, 2011.

A jury convicted defendant Douglas Scott Enborg of five crimes: kidnapping; simple battery on a cohabitant; false imprisonment by violence; making criminal threats; and assault likely to produce great bodily injury. (§§ 207, 236, 245, 273.5, and 422.) The jury also found true that defendant had sustained two strike convictions, two felony convictions, and two convictions for which he served separate prison terms. (§§ 667, subds. (a)-(i), and 667.5, subd. (b).) On the principal term of aggravated kidnapping, the court sentenced defendant to an aggregate term of 32 years to life.
On appeal, defendant challenges the sufficiency of the evidence for his convictions on counts 1, 3, and 4 for kidnapping, false imprisonment, and making criminal threats, and also the instruction given on count 1. We hold there was sufficient evidence on all counts. Additionally, because the jury was instructed on both kidnapping and false imprisonment, based on the same facts, no additional instruction was required on false imprisonment as a lesser included offense of kidnapping. The People concede—and we agree—the conviction on count 3 for false imprisonment should be reversed. Otherwise, we affirm the judgment.

The minor, P.T., appeals after the juvenile court adjudicated her a ward of the court, following a true finding that the minor had violated Penal Code section 245, subdivision (a)(1),[1] assault with a deadly weapon. The minor raises contentions that the evidence was insufficient to support the true finding on the charge, the juvenile court improperly failed to consider the applicability of a lesser included offense, the trial court failed to make a determination whether the offense was a felony or a misdemeanor, and one of the minor’s probation conditions should be modified. We affirm the judgment, but agree the matter must be remanded to specify whether the offense is a felony or misdemeanor. As to the challenged probation condition, we find that the trial court spoke in error and imposed no such condition.

Plaintiff Mildred Novak fell while walking on April 15, 2009. She sustained bilateral olecranon fractures of both elbows as a result of the fall. On April 24, 2009, defendant Patrick St. Pierre, an orthopedist, operated on her left elbow and inserted a plate.
On April 25, 2009, plaintiff went to the emergency department at Eisenhower Medical Center because she had developed some bleeding at the incision site. She returned to defendant on April 27, 2009. He found that a bone fragment had dislodged from the plate. Accordingly, he scheduled surgery to remove the plate. Before that surgery, plaintiff was brought back to the doctor by her husband. Her husband reported that she was confused, had fevers, and had increased swelling around the incision in the preceding two days. Defendant decided she had an infection. He hospitalized her and operated on her the same evening. Defendant removed the plate, curetted the bone, irrigated the site, and inserted a Penrose drain.

Defendant John Matthews Tucker argues that the evidence at trial was insufficient to support his convictions for commercial burglary and forgery. (Pen. Code, §§ 459 & 470.)[1] He also claims that the trial court erred by not dismissing his prior strike. We will affirm.

Defendant Julio Ceasar Heredia was charged with and convicted of seven criminal offenses, including murder, committed during two gang-related shootings in February and April 2006, when defendant was 18 years old. Defendant’s crimes stemmed from a conflict between defendant’s gang, 5150 Mexican Royalty or 5150 MR (5150), and a rival gang, Mad Down Locos or Mad Down (MD). The victims, however, were not gang members.
A court sentenced defendant to life without parole imposed for the special-circumstance murder, plus consecutive sentences of 95 years to life and 43 years of determinate time.
On appeal, with regard to the four crimes (counts 1-4) committed in February 2006, defendant contends the trial court violated his rights to due process under the Fifth, Sixth, and Fourteenth amendments by instructing the jury based on a flawed version of CALCRIM No. 301. The People concede the court committed two sentencing errors founded on sections 12022.53 and 654 and involving counts 5 and 7, crimes committed in April 2006. We correct the sentencing errors but reject the substantive contention and affirm the judgment.

A jury found Richard James Goolsby, defendant and appellant (hereafter defendant), guilty of arson of an inhabited structure in violation of Penal Code section 451, subdivision (b),[1] and further found true the allegation that he caused more than one structure to burn within the meaning of section 451.1, subdivision (a)(4) based on evidence that defendant set a fire that caused two motor homes to burn.[2] Because the felony conviction constituted defendant’s third strike, the trial court sentenced him to the mandatory term of 25 years to life in state prison. The trial court also imposed three prior serious felony enhancements under section 667, subdivision (a) after first finding those allegations true,[3] and a five-year sentence enhancement based on the jury’s true finding on the section 451.1 allegation.

Kathryn S. appeals findings and orders entered at a 12-month status review hearing held pursuant to Welfare and Institutions Code section 366.21, subdivision (f). Citing In re Sade C. (1996) 13 Cal.4th 952, she asks this court to exercise its discretion to review the record for error.
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 [her] custody of a child or [her] status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) We therefore deny Kathryn's requests to review the record for error and to address the Anders issues. (Anders v. California (1967) 386 U.S. 738.)
Citing In re Phoenix H. (2009) 47 Cal.4th 835, counsel asks this court to exercise its discretion to provide Kathryn with the opportunity to file a supplemental brief in propria persona. Counsel also asks this court to order counsel to brief any arguable issue. (Penson v. Ohio (1988) 488 U.S. 75, 88.) The requests are denied.