CA Unpub Decisions

Under Government Code section 815.6, a public entity may be liable for injury caused by its failure to discharge a “mandatory duty” imposed by an enactment designed to protect against that type of injury.[1] Our Supreme Court has explained that, to be mandatory, “the enactment [must] be obligatory, rather than merely discretionary or permissive, in its directions to the public entity . . . .” (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498 (Haggis).) In addition, “[i]t is not enough . . . that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion.” (Ibid.) Therefore, an enactment’s use of mandatory language such as “shall” is not dispositive. An enactment creates a mandatory duty “only where the . . . commanded act [does] not lend itself to a normative or qualitative debate over whether it was adequately fulfilled.” (de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 260 (de Villers).)
The main issue raised in this writ proceeding is whether the County of Los Angeles (County) had a mandatory duty to capture and take into custody two privately-owned pit bulls before they attacked one of the plaintiffs in this case. The trial court concluded it did based on certain provisions in the Los Angeles County Code (LACC) which, when read together, require the Director of the County Department of Animal Care and Control to capture and take into custody any animal that “constitute[s] or cause[s] a hazard, or [is] a menace to the health, peace or safety of the community.”
We hold the trial court erred in its construction of the LACC provisions in question. We also reject plaintiffs’ additional arguments that other provisions in the LACC imposed a mandatory duty on the County to take certain actions that might have prevented the pit bull attack in this case. Accordingly, we grant the County’s petition for a writ of mandate and direct the trial court to vacate its order denying the County’s motion for summary judgment and to thereafter enter a new order granting the motion.

First American Title Insurance Company's assignees, Dale Scarborough and Janet Scarborough, appeal the judgment entered after an order granting judgment on the pleadings in this action to recover attorney's fees pursuant to an escrow indemnity provision. We affirm.

The juvenile court terminated parental rights to Juan L. pursuant to Welfare and Institutions Code[1] section 366.26 almost nine years after he was declared a dependent pursuant to section 300. Neither parent has appealed from the parental rights termination order. Rather, the appeal was filed by four of his older siblings, who are currently aged as follows: Caroline L. (20); Samuel L. (17); Michelle (16); and Nicole (15). The older siblings contend the juvenile court was obligated as a matter of law to apply the sibling relationship exception to termination of parental rights pursuant to section 366.26, subdivision (c)(1)(B)(v). This contention is meritless and we affirm the order terminating parental rights.

David Lee Johnson appeals from the judgment after a jury convicted him of transportation of cocaine ((Health & Saf. Code § 11352, subd. (a)) and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a) (a)). Appellant admitted a prior strike conviction (Pen. Code, §§ 667, subds. (c)(1) & (e)(1); 1170.12, subds. (a)(1) & (c)(1)) and five prior prison enhancements (Pen. Code § 667,.5, subd. (b)), and was sentenced to 12 years state prison. Before sentencing, the trial court denied appellant's motion for new trial and Romero motion (People v. Superior Court (Romero ) (1996) 13 Cal.4th 497).

Sylvia A. Schnopp appeals from the trial court's orders (1) modifying child support; (2) denying her request to receive as additional child support a portion of stock option gains realized by her former husband, respondent Eddie K. Schnopp; and (3) denying her request for reasonable attorney fees and costs. We affirm.

Eric Anthony Nichols (Nichols) and Jason Allen Morris (Morris) (collectively appellants) appeal from the judgments entered upon their convictions of second degree robbery (Pen. Code, § 211).[1] Nichols also appeals his conviction for being a felon in possession of a firearm (§ 12021, subd. (a)(1)). Nichols was convicted by jury and Morris by plea of guilty and admission of a prior felony strike (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and a prior serious felony (§ 667, subd. (a)(1)).
With respect to Nichols, the jury found to be true the allegation that in connection with the robbery, he personally used a firearm (§ 12022.53, subd. (b)). The trial court found that he had suffered a prior prison term within the meaning of section 667.5, subdivision (b). It sentenced him to an aggregate state prison term of 16 years, calculated as the upper term of five years for the robbery conviction, 10 years for the firearm enhancement and one year for the prior prison term enhancement, as well as a concurrent two-year term for his conviction of being a felon in possession of a firearm.

A jury convicted defendants, Elmer Alberto Vasquez and Artemio Galiana, of first degree burglary where another person was present. (Pen. Code,[1] §§ 459, 667.5, subdivision (c)(21).) Mr. Vasquez was sentenced to four years in state prison. Mr. Galiana was sentenced to two years in state prison. We modify the sentence in certain aspects but affirm defendants’ convictions.

It is ordered that the opinion filed herein on August 8, 2012, be modified as follows:
1. At the end of the third sentence in the second full paragraph on page 8, i.e., at the end of the sentence ending “prior conviction was an unauthorized sentence,” add as footnote 8 the following footnote, which will require renumbering of all subsequent footnotes:

A jury convicted defendant, Mike King Thielemann, of two counts of assault by means of force likely to produce great bodily injury. (Pen. Code,[1] § 245, subd. (a)(1).) He was sentenced to three years in state prison. Defendant assaulted two acquaintances—Patricia Gault (count 1) and Todd Dickey (count 2). Defendant asserts the trial court violated his confrontation rights under the federal Constitution as to count 2. Defendant challenges an order admitting into evidence a recording of a non-testifying victim’s telephone call to an emergency operator. Defendant’s argument on appeal relates solely to the aggravated assault on Mr. Dickey. Mr. Dickey did not testify at trial. We conclude Mr. Dickey’s statements were nontestimonial and therefore admissible. We further conclude even if there was error, it was harmless. We affirm the judgment but direct, upon remittitur issuance, the abstract of judgment be corrected.

Defendant and appellant Shamsha N. Laiwala contends the court abused its discretion in denying both her motion to withdraw her guilty plea and her subsequent motion for reconsideration. We affirm.

Plaintiff and appellant Keith Thomas argues the trial court was wrong to sustain defendant Attorney General Kamala Harris’s demurrer to his complaint without leave to amend. Thomas seeks to impose civil liability upon the Attorney General because, according to his allegations, an incorrect jury instruction was used when he was successfully prosecuted for battery committed by gassing under Penal Code section 243.9. As the Attorney General, or any public employee involved in prosecuting the charge against Thomas, was statutorily immune from civil liability for acts undertaken in the course of a judicial proceeding, the trial court was correct. Moreover, since any judgment in favor of Thomas would necessarily imply the invalidity of his conviction for battery by gassing, his complaint must be dismissed. There is no possibility that Thomas could cure the defect in his complaint by amendment. We affirm.

Respondent David Travis worked for ThyssenKrupp Elevator Corporation (Thyssen) installing elevators. Thyssen was a subcontractor for appellant general contractor Bison Builders, Inc. (Bison) in the construction of a hotel. Travis was injured when he struck his head on a portion of scaffolding erected at the entrance to the worksite.
Travis sued Bison for negligence and went to trial on the theory that as general contractor, Bison had negligently exercised its retained control over the safety of his worksite. Bison tendered defense of Travis’s suit to Thyssen, citing the terms of its subcontract. Bison filed a cross-complaint against Thyssen for indemnification and defense costs when Thyssen declined the tender.

Defendants Ron Beeson, Deanna Copeland, and Daniel Copeland appeal from the superior court’s order denying their special motion to strike (Code Civ. Proc., § 425.16)[1] the complaint of plaintiffs Cheryl Hamel and Eli Hamel, a minor, by and through his guardian ad litem, Cheryl Hamel.[2] They argue that the complaint or at least some of the causes of action arose out of their exercise of free speech rights and plaintiffs cannot establish a probability of prevailing on the merits. We affirm the judgment.

In 1975, petitioner George Edward White was convicted of the first degree murder of 20-year-old Betsy Martin. White shot Martin six times in the back of the head as she lay on her bed, because she, according to White, owed him approximately $10,000 for drugs he had sold her. Martin’s body was discovered by her boyfriend, William Wright, also a drug dealer. Initially sentenced to death, White’s sentence was subsequently commuted to life in prison.