CA Unpub Decisions

Shirley Ferer appeals from the final judgment dissolving her 26-year marriage to Aaron Ferer and adjudicating their respective property rights. She presents three contentions, all of which deal with property issues. We conclude these contentions are without merit, and we affirm.

Harry McAlindon died on April 17, 2006. A will contest between Harry’s[1] long-time companion, appellant Diane Tolhurst and Harry’s five children, including respondent Brian McAlindon, followed. The parties, represented by counsel, entered into a written agreement settling that litigation in April 2008, and the probate estate was closed. Two years later Tolhurst made three successive and unsuccessful attempts to rescind the settlement. She appeals from the denial of her most recent efforts. We affirm.

Branislav Jovanovic and Marianne Steele (plaintiffs) brought the underlying action against 21st Century Mortgage Company (21st Century) and its individual investors[1] to enjoin the foreclosure of a multi-unit condominium project in Oakland that defendants had funded by a so-called hard money[2] loan in excess of $3 million. The trial court granted a temporary restraining order and then a preliminary injunction against defendants that was conditioned upon plaintiffs posting an undertaking of $90,000 to cover the attorney’s fees and monthly interest payments due to the defendants. Ultimately, the trial court found in favor of defendants, dissolved the preliminary injunction and granted the defendants’ motion to enforce plaintiffs’ liability on the bond pursuant to Code of Civil Procedure section 996.440. [3] Plaintiffs appeal, together with their surety, American Contractor Indemnity Company (ACIC), from the order granting the motion to enforce their liability on the bond. We affirm.

Johnny Lindel Lewis appeals his conviction for the murder of Robert Van Alstine. Lewis contends that the trial court erred in admitting his statement to police as evidence at his trial because he did not knowingly, intelligently, and voluntary waive his Miranda rights and did not voluntarily make the statement. Lewis further contends that other evidence concerning blood and weapons was wrongly admitted at trial, prejudicing his case. Lewis also contends that he was ineffectively represented by counsel at his trial and that admission of the blood and weapons evidence violated his right to due process. We affirm.

Lawrence Livermore National Security LLC (LLNS) manages and operates the Lawrence Livermore National Laboratory under contract with the U.S. Department of Energy. Victor Kley, and companies which he owned and controlled (General Nanotechnology LLC (GN) & Metadigm LLC (Metadigm)[1]; collectively, appellants), claimed that LLNS misappropriated trade secrets which he developed and owned. Appellants filed suit, additionally alleging breach of a nondisclosure agreement and the implied covenant of good faith and fair dealing, and fraud against LLNS.[2] The trial court found the misappropriation and fraud claims time-barred and granted summary adjudication of those causes of action. A jury returned a verdict in favor of LLNS on the remaining breach of contract claims. LLNS was awarded the attorney fees it incurred in defending the time-barred misappropriation claim under Civil Code section 3426.4,[3] after the trial court found that appellants pursued the claim in bad faith. Appellants challenge the jury verdict, the trial court’s rulings on summary adjudication, and the award of attorney fees. We affirm in all respects.

Joe Caylao was convicted by plea of one count of grand theft in violation of Penal Code sections 484-487, subdivision (a).[1] He was placed on probation for three years and ordered to serve 300 days in jail. The court imposed various terms of probation, among them that he refrain from possessing or consuming alcohol or knowingly being in any place where alcohol is the primary item of sale. Caylao challenges this probation term on appeal, contending that it was not reasonably related to the crime of which he was convicted. On this record, which reveals that Caylao has a criminal history involving drug related charges, we reject the challenge and affirm the judgment.

Defendant Danny Ray Blaylock was convicted by no contest plea in one case (SS101645) of one count of discharge of a firearm with gross negligence in violation of Penal Code section 246.3, subdivision (a).[1] While on probation in that case, Blaylock was convicted by no contest plea in a second case (SS12694) of one count of second degree burglary in violation of section 459, with an admitted prior strike within the meaning of section 1170.12, subdivision (c)(1), his conviction in the first case. In addition, the court found him in violation of probation. Sentence was suspended and he was again placed on probation. Blaylock later admitted yet again violating probation based on a new charge of reckless driving in violation of Vehicle Code section 23103, subdivision (a), a misdemeanor. Probation was revoked and the court sentenced Blayock in both felony cases to a total of four years in prison, consisting of four years in the second case and two years, concurrent, in the first case. The court imposed various fines and fees and it awarded pre-sentence conduct credits under section 4019 in both cases.
On appeal, Blaylock contends on equal protection grounds that he is entitled to additional conduct credit in both cases based on legislative changes to section 4019, which are expressly operative to crimes committed on or after October 1, 2011, a date subsequent to his crimes. We reject this contention and affirm the judgments.

Phillip H. Frazier sued Donald Moody as Public Guardian of the County of Santa Clara for interference with the disposition of his mother’s remains and other causes of action related to his mother’s death arising from Moody’s role as his mother’s conservator. The trial court sustained Moody’s demurrer to the third amended complaint without leave to amend and dismissed the action. Frazier appeals from the judgment and contends that he stated four causes of action.[1] We disagree and affirm the judgment.

Plaintiff Sharon A. Marbley sued defendant The Permanente Medical Group[1] for wrongful termination and other employment-related causes of action. The trial court granted defendant’s motion to dismiss the complaint after a demurrer was sustained and plaintiff failed to amend within the time allowed. (Code Civ. Proc., § 518, subd. (f)(2).)[2] Plaintiff appeals from the order of dismissal. Finding no error, we shall affirm.

In the dependency case of now three-year-old A.V. (son), the juvenile court terminated parental rights and established adoption as the permanent plan. (See Welf. & Inst. Code, § 366.26.)[1] D.V. (mother) appeals, asserting the court erred by failing to apply the “benefit exception.” (See § 366.26, subd. (c)(1)(B)(i).)[2] As substantial evidence supports the court’s findings on this point, we affirm the court’s postjudgment order.

Jennifer A. (Mother) and Joel A. (Father) appeal from a judgment terminating their parental rights over their children Tyrone and Cheyenne. They contend there is insufficient evidence to support the juvenile court’s finding the children are adoptable, but we disagree and affirm the judgment.

Jack Mau (“Mau”) appeals from a judgment awarding Newmeyer & Dillion, LLP (“Newmeyer”) attorney fees for services it rendered to Mau in two matters. Mau’s one-page opening brief is devoid of any legal argument, citation to authorities, or citations to the record on appeal. Accordingly, he has failed to meet his appellate burden and we affirm the judgment.

This is the third time this case has been before us. In the most recent opinion we affirmed the denial of a petition to compel arbitration filed by defendants Award, Inc., Award-Superstars, Century 21 Superstars, and Gregory Britton, the latter not a party to this appeal. (Wherry v. Award, Inc. (2011) 192 Cal.App.4th 1242, 1245; Wherry 1.) After the remittitur was issued, the trial court granted the motion filed by plaintiffs Karena Wherry and Rocelyn Traieh for attorney fees incurred in defeating the motion.
Defendants appeal on several grounds, claiming the contractual provision that was the basis of the fee award was unenforceable because we found it unconscionable in Wherry 1; the award was based on judicial and collateral estoppel; the motion was premature absent a prevailing party in the underlying action; the motion was untimely; and the amount of the award was excessive in violation of the court’s discretion. We conclude that, although the attorney fees provision is not unconscionable but is enforceable, plaintiffs are not entitled to fees at this stage of the case.

A jury convicted defendant Jorge Cruz Adan Flores of sexual intercourse or sodomy with a child 10 years old or younger (count 1; Pen. Code, § 288.7, subd. (a); all further statutory references are to this code), oral copulation or sexual penetration of a child that age (count 2; § 288.7, subd. (b)), and continuous sexual abuse (count 3;
§ 288.5, subd. (a)). The court sentenced him to 25 years to life on count 1, a consecutive 15 years to life on count 2, and stayed sentencing on count 3.
Defendant contends the court prejudicially erred in not sua sponte instructing the jury if it had a reasonable doubt about whether he committed sexual intercourse or sodomy with a child aged 10 or younger, or merely the lesser offense of attempting to commit that crime, it could only convict him of the lesser offense. (People v. Dewberry (1959) 51 Cal.2d 548, 555.) We disagree. CALCRIM Nos. 3517 and 220, both given by the court, together instructed the jury on what defendant describes as “the effects of reasonable doubt on the choice between the greater and lesser included offenses.”