CA Unpub Decisions

A. C. (Mother) appeals from an order of the juvenile court granting the request of Neil V. (Father) for a restraining order against her to protect himself, their child Nathan V., and Father’s fiancée Maria P. We find substantial evidence supports the court’s order and so affirm.

Appellant Carlos G., the biological father of Brianna B., argues the juvenile court erred by denying his request to continue a hearing under Welfare and Institutions Code section 366.26[1] in order to set a contested hearing at a later date. He also contends the court erred in stating that it was only terminating the parental rights of the child’s mother and presumed father, Martin R. We find no reversible error and affirm.

Plaintiff Future Films, Inc. (Future) appeals judgment after the trial court sustained defendants’ demurrers to its first amended complaint (FAC) on the basis of the sham pleading doctrine. Future asserted claims for interference with contract and declaratory relief and alleged that it owned the rights to a film by virtue of defendants’ default on Future’s production loan to them. After such default, Future entered into a distribution deal for the film with a third party. Plaintiff’s initial complaint alleged that defendants, in an email to the third party, claimed to control distribution rights in the film and refused to provide a necessary song license and proper credits to the film, which caused the third party to breach the distribution contract. Defendant Sriram Das (Das) demurred to the complaint asserting that the lack of rights did not cause the third party to refuse to distribute the film because the lack of proper licensure and credit meant the film could not be distributed in any event. Thereafter, plaintiff filed a FAC in which it changed these key allegations to assert that plaintiff could obtain a song license and proper credits on its own, and that it was simply defendants’ assertion that they owned the rights to the film that caused the third party to refuse to distribute the film. We find that the changed allegations were not material and thus the sham pleading doctrine does not provide a basis for defendants’ demurrer, and reverse.

Defendant and appellant Noe H. Diaz appeals his convictions for oral copulation with a child under the age of 10 and commission of a lewd act upon a child. The trial court sentenced Diaz to a term of 15 years to life in prison. Diaz contends the evidence was insufficient to sustain the verdicts. We affirm.

Kimberly Grace Munson appeals from her conviction by jury verdict of child custody deprivation in violation of Penal Code section 278.5, subdivision (a) (statutory references are to this code). Her only contention on appeal is that the trial court abused its discretion by declining to reduce the felony charge to a misdemeanor. We find no abuse of discretion and affirm.

Defendants Paul Hutchinson and Paul Hutchinson, Inc. (we will refer to both defendants, collectively, as Hutchinson) appeal from the denial of their special motion to strike and the imposition of attorney fees as sanctions under Code of Civil Procedure section 425.16, the anti-SLAPP statute.[1] We conclude the trial court correctly found that Hutchinson failed to establish that the causes of action alleged by plaintiffs Daniel B. Hayes (Hayes) and Davis Shapiro Lewit & Hayes, LLP (the law firm) arose from conduct protected under section 425.16. Therefore, we affirm the trial court’s order denying Hutchinson’s special motion to strike. We also conclude, however, that the trial court abused its discretion by imposing sanctions, inasmuch as the court repeatedly stated during argument on the motion that Hutchinson’s motion was not “completely frivolous,” and it did not provide any findings to support the order. Accordingly, we reverse the order imposing sanctions under section 425.16.

Minor Anthony S. appeals from an order declaring him a ward of the juvenile court under Welfare and Institutions Code section 602. He argues the trial court erred in finding he was competent and knew the wrongfulness of his conduct. We affirm.

Childhood surgery to remove a brain tumor left respondent Clay Wagner (Clay), 45 years old at the time of the relevant proceedings, with memory problems and a seizure disorder. For all of his adult life, various family members have acted as Clay’s conservator.[1] Dru Harris is Clay’s sister and current conservator. Appellants James Wagner and Les Wagner are Clay’s father and sister, respectively. Appellants challenge the September 28, 2010 order denying their petition to remove Dru as Clay’s conservator and have themselves appointed in her place. Appellants contend: (1) notice of trial on their petitions was insufficient; (2) it was an abuse of discretion to deny their request for a continuance of the trial; (3) they were denied due process by certain ex parte communications; (4) evidence of Clay’s wishes was inadmissible; (5) the denial of their petitions was an abuse of discretion; and (6) the trial court’s failure to issue a written statement of decision was reversible error. We affirm.

As the importance of standardized tests has increased for admission to undergraduate and graduate schools, the business of preparing students to take those tests has flourished. This case arises out of the creation of a new Law School Admissions Test (LSAT) preparation business by five employees of one test preparation company who left to start a competing company. This professional move generated seven and a half years of litigation, including three and a half years of vigorously contested pretrial discovery and motions, a three-month trial, four appeals, and multiple writ proceedings.

The trial court sustained the demurrer of respondent City of Oakland (city) to appellant Ronald A. Mack, Sr.’s (Mack) first amended complaint. The city’s demurrer was sustained without leave to amend. A judgment dismissing that complaint soon issued. Mack appeals,[1] contending that the trial court erred by sustaining the demurrer. We affirm the judgment.

Harold J. Rucker sued the City of Hayward, and its employees Stacy Sorensen, Jill Hadden, and Toshikazu Yoshihata, alleging defendants unlawfully and maliciously removed a shrub from property on which he resided. Rucker’s first amended complaint asserted trespass, negligent and intentional infliction of emotional distress, and violation of constitutional rights. Defendants demurred, arguing Rucker did not own the property or shrub and therefore lacked standing to sue. The trial court sustained the demurrer without leave to amend and entered a judgment of dismissal. We affirm.

Defendant was convicted of the following crimes against the following victims: (1) Shannon Doe: forcible penetration by a foreign object (Pen. Code § 289, subd.(a)(1)),[1] three counts of forcible rape (§ 261, subd. (a)(2)), and two counts of forcible oral copulation (§ 288a, subd. (c)(2)); (2) Barbara Doe: forcible rape (§ 261, subd. (a)(2)), and forcible sodomy (§ 286, subd. (c)(2)); (3) Cecilia Doe: forcible rape (§ 261, subd. (a)(2)); and (4) N. Doe: assault with intent to commit a sex crime (§ 220, subd. (a)).
On appeal, he argues that the trial court erred because (1) it failed to give sua sponte a unanimity instruction on one of the counts involving Shannon Doe; (2) it did not instruct the jury sua sponte on the meaning of “consent”; (3) it failed to instruct sua sponte on simple assault as a lesser included offense of rape with regard to Cecilia Doe; (4) it failed to instruct sua sponte on simple assault as a lesser included offense of assault with intent to commit rape with regard to N. Doe; and (5) it erred in admitting testimony from the nurse who conducted Cecilia Doe’s sexual assault examination.
Finding no error, we affirm the judgment.

A homeowner in a common interest development sued the homeowners association for declaratory relief, seeking a determination that any amendments to the development’s covenants, conditions, and restrictions (CC&Rs) that “deprive owners of significant property rights, especially when such amendment operates retroactively to terminate a vested right” requires prior consent of the owner. The trial court granted summary judgment to the defendant homeowners association upon concluding that the challenged amendment was passed by a supermajority of the homeowners, thus obviating the need for individual owner consent. The trial court thereafter awarded attorney fees and costs to the homeowners association. We affirm.

On January 27, 2012, defendant Ismael Angel Garcia pleaded no contest to one count of shooting at an inhabited dwelling (Pen. Code, § 246)[1] and one count of assault with a firearm (§ 245, subd. (a)(2)). Garcia also admitted allegations that he personally used a firearm in committing the assault with a firearm (§ 12022.5, subd. (a)), as well as that he had suffered a prior strike conviction (§ 1170.12) and a prior serious felony conviction (§ 667, subds. (a), (b)-(i)). On April 24, 2012, Garcia was sentenced to 26 years, four months in prison.
We appointed counsel to represent Garcia in this court. Appointed counsel filed an opening brief which states the case and the facts, but raises no specific issues. We notified Garcia of his right to submit written argument in his behalf within 30 days, and he has filed a letter brief claiming ineffective assistance of counsel for failing to adequately investigate.