CA Unpub Decisions

Appellant P.F. appeals from a final judgment disposing of all issues between the parties. Appellant’s counsel has filed an opening brief in which no issues are raised, and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has submitted a declaration stating that appellant has been notified that no issues were being raised by counsel on appeal, and that an independent review under Wende instead was being requested. Appellant was also advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this court’s attention. No supplemental brief has been filed by appellant personally.

Plaintiff Gregory Chatten Stockman, appearing in propria persona, appeals from an order sustaining without leave to amend a demurrer by defendants John R. Abrahams and Barry Collins. He contends the trial court erred in sustaining the demurrer on the ground that he failed to comply with the California Tort Claims Act (the Act) (Gov. Code, §§ 810-996.6).[1] We shall affirm.

Fifteen retail pharmacies sued 20 defendants, alleging they conspired to fix the prices on their pharmaceuticals sold in the United States at prices higher than those of the same drugs in Canada in violation of the Cartwright Act (Bus. & Prof. Code, § 16720 et seq.) and the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.). Defendants moved collectively (and in three cases, individually) for summary judgment, arguing that plaintiffs could not produce evidence creating a triable issue of fact that defendants engaged in price fixing. The trial court agreed, and in comprehensive orders granted summary judgment for defendants. Plaintiffs appeal, contending that the trial court erred in granting summary judgment, and also asserting numerous procedural claims, including some that would have caused the motions not to be heard when they were—and not by the judge who heard them. We conclude that none of the procedural claims has merit, and on our de novo review further conclude that summary judgment was properly granted. We thus affirm.

A jury convicted appellant of unlawfully taking or driving a motor vehicle. (Veh. Code, § 10851, subd (a). The trial court found true allegations that appellant suffered a prior conviction for vehicle theft and had served two prior prison terms. (Pen. Code §§ 666.5; 667.5.) Appellant was sentenced to a total term of five years in state prison.
Appellant contends that the judgment must be reversed because there is insufficient evidence to support his conviction and because he was prejudiced by two jury instructional errors. We reject these contentions and affirm the judgment.

This partition action concerns the physical division of two ranches in Monterey County jointly owned by the descendants of the Pedrazzi brothers. Appellants (defendants below) are the descendants of Paul Pedrazzi. They own an undivided one-third interest in the ranches. Respondents and cross-appellants (plaintiffs below) are the descendants of Alfred and Enos Pedrazzi. They own the remaining undivided two-thirds interest in the property. Pursuant to the parties' stipulation and in accordance with Code of Civil Procedure section[1] 873.010 et seq., the trial court appointed a referee to assist with the division of the properties. After inspecting the ranches and conducting a five-day trial, the referee issued two reports recommending a specific, physical division of the ranch properties. The plaintiffs subsequently made a motion to confirm the referee's reports and asked the court to conduct a hearing on their claim for reimbursement of a portion of the property taxes they had paid on the properties. The trial court confirmed the referee's reports and recommendation, denied the plaintiffs' request for reimbursement of back taxes, ordered each side to pay its proportionate share of any future tax liability, and entered an interlocutory judgment of partition.
On appeal, defendants contend that there was insufficient evidence to support the award of one of the ranch houses to plaintiffs, that the referee's award of a recreational easement is illusory, that the legal description of the division of some of the farmland is insufficient, that the partition fails to comply with land use regulations, and that there is insufficient evidence to support some of the court's findings regarding property values. In their cross-appeal, plaintiffs challenge the court's ruling on their motion for reimbursement of the property taxes. We find no abuse of discretion and will therefore affirm the interlocutory judgment of partition.

Ignacio H. (Father) appeals from a dispositional order of the juvenile court. He contends the court erred in denying his request for custody of his daughter Amy. We disagree and affirm the order. We find substantial evidence supports the trial court’s decision.

One evening, Orange County Sheriff deputies Steve Hortz and Maury Rauch, both in uniform and on duty at the Theo Lacy jail facility, were conducting an hourly security check of a barrack. To ensure all of the inmates were accounted for, jail rules required each inmate to be on his assigned bunk. Hortz saw an inmate named Jacob Munoz in the wrong area. Munoz approached Hortz and when Hortz ordered him to go to a specific location, Munoz took an aggressive stance and began to remove his T-shirt. Expecting a fight, Hortz wrestled Munoz to the ground
Immediately, several other inmates surrounded Hortz and began to punch and kick him. Rauch came to Hortz’s aid, dispersing the inmates with pepper spray. As a result of the attack, Hortz suffered bruises on his face and back of his head, plus a swollen knee.
Rauch was assigned to investigate the incident. He spent several hours reviewing videotapes from surveillance cameras that recorded the attack from four different angles. Rauch identified nine inmates who participated in the assault on Hortz. One of these inmates was defendant Francisco Martinez.

A jury found Jonathan Ricardo Salazar guilty of conspiracy to commit aggravated assault (count 4), assault with a deadly weapon (count 5), robbery (count 6), assault by means of force likely to commit great bodily injury (count 7), conspiracy to commit vandalism (count 8), gang-related vandalism (count 9), active participation in a criminal street gang (counts 10 and 13), first degree burglary (count 11), and gang-related vandalism (count 12). The jury also found true great bodily injury enhancements and gang enhancements related to the above counts. It found Salazar not guilty of commercial burglary (count 2), the prosecution withdrew count 1, and the court dismissed count 3 (which were charges relating to the burglary).
On appeal, Salazar challenges the sufficiency of the evidence for the robbery and burglary convictions (counts 6 and 11), and he claims there was instructional error regarding count 6. We find these contentions lack merit and we affirm the convictions. However, we conclude there was error with respect to sentencing and the judgment must be reversed in part and remanded for resentencing.

This is a breach of contract action relating to the termination of Lynn G. Muth’s[1] employment in a business enterprise controlled by his family. Pursuant to one of several relevant agreements, the action was tried pursuant to the provisions of Code of Civil Procedure section 638. Muth prevailed before the reference judge, and judgment for $388,092.78 was entered by the trial court. Defendant Orco Block Company, Inc. (Orco) argues a number of grounds for reversal, including erroneous factual and legal conclusions, excessive damages, and the denial of two motions in limine. We conclude there was no reversible error and affirm the judgment.

Plaintiffs Aaron and Cobi Revious experienced recurring engine problems with their Ford F-250 truck and, in December 2008, filed a lawsuit against defendant Ford Motor Company under the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.; Song-Beverly Act). In accordance with its written warranty, defendant or its authorized repair facility made a number of attempts to correct the engine problems during the warranty period. Repairs performed in March 2009 were apparently effective, and no further repairs under the warranty were requested by plaintiffs even though the five-year warranty continued until December 2009. In March 2010, a diagnostic test conducted by defendant’s expert confirmed the truck was working fine at that time. However, according to plaintiffs, the engine was not permanently fixed. A diagnostic test performed by plaintiffs’ expert in November 2010, shortly before trial, indicated the truck was manifesting engine problems again. During in limine proceedings, defendant moved to exclude the introduction of evidence relating to the November 2010 diagnostic test under Evidence Code section 352.[1] The trial court granted the motion, concluding that the risk of prejudice was substantial while the relevance of the evidence was tenuous at best. Additionally, when plaintiffs attempted to testify of engine symptoms that were continuing at the time of trial, the trial court sustained defendant’s objections. Based on the evidence before it, the jury found that defendant or its authorized repair facility had successfully repaired the vehicle to match defendant’s written warranty within a reasonable number of attempts, thereby defeating plaintiffs’ Song-Beverly Act action. The trial court entered judgment in defendant’s favor, and plaintiffs now appeal from that judgment on the ground that the trial court erred in excluding plaintiffs’ postwarranty evidence of recurring engine problems. We conclude that plaintiffs have failed to demonstrate the trial court’s evidentiary rulings were prejudicial and, therefore, we sustain the judgment.

This is an appeal from a judgment entered after the trial court granted the motion for summary judgment filed by defendant, Service Employees International Union Local 1000 (SEIU). The trial court determined plaintiff’s opposition to the motion failed to include a separate statement of disputed and undisputed facts that conformed to the requirements of Code of Civil Procedure section 437c, subdivision (b)(3),[1] and rule 3.1350 of the California Rules of Court;[2] it exercised its discretion under section 437c, subdivision (b)(3) to grant the motion on that basis. Plaintiff contends the trial court abused its discretion by failing to grant a continuance in order to permit him to file a proper separate statement. We conclude the trial court did not abuse its discretion by denying the motion. Further, plaintiff has not established any prejudice arising from the denial of an opportunity to correct the defective separate statement. The facts outlined and the evidence cited by plaintiff in his opposition, even if presented in a proper separate statement, did not raise a triable issue of material fact sufficient to defeat SEIU’s motion. Accordingly, we affirm.

Mother and father (parents) separately appeal from an order terminating their parental rights to their three-year-old son, A.T. (born in 2009) and six-year-old daughter, M.T. (born in 2005). Parents contend the juvenile court erred in rejecting the beneficial relationship exception to adoption under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(I).[1] Father also appeals an order denying his petition under section 388, seeking reinstatement of reunification services. He argues his circumstances have changed and it is in the children’s best interests to grant his petition. We reject parents’ contentions and affirm the judgment.

Petitioner County of Sacramento (the County) unsuccessfully moved for summary judgment in this tort action, which is premised on the alleged failure of the Sacramento County Public Conservator (the conservator) to warn a care facility adequately about a conservatee’s history of violence. After placement at the facility, the conservatee injured one employee and killed another (Tumbur Purba and his wife, decedent Pausta Sibarani). The County had asserted, inter alia, that its agency was immune from suit under Welfare and Institutions Code section 5358.1[1] and consequently it did not have any derivative liability. The trial court, after finding the existence of a duty to warn adequately, ruled that “the immunity is not so broad” because “there is a duty that in essence super[s]edes the immunity . . . where someone is a real problem and dangerous to the public . . . .”
The County filed a petition in this court for a writ of mandate directing the trial court to set aside its order and issue a new one granting summary judgment on the basis of this statutory immunity. We issued an alternative writ, to which real parties in interest (Tumbur Purba and the children of the couple, to whom we will refer in the singular as “real party”) have filed a return. We agree section 5358.1 affords an absolute immunity. We will therefore issue a peremptory writ directing the trial court to vacate its order and issue a new one granting the County’s motion for summary judgment.

In accordance with a negotiated plea agreement, defendant David Joel Mora pleaded guilty to committing gross vehicular manslaughter while intoxicated, failing to stop at the scene of the accident, driving under the influence of alcohol, causing injury to multiple victims and inflicting great bodily injury. In exchange, defendant received a stipulated state prison term of 19 years eight months, and agreed to waive 365 days of presentence credit.
At sentencing, the trial court awarded defendant 544 days of custody credit plus 81 days of conduct credit, for 625 days of presentence credit against his sentence.[1]