CA Unpub Decisions

Wilkes & McHugh and Steven Wilheim for Plaintiff and Respondent.
Defendants and Appellants Grancare, LLC (Grancare) appeal the denial of its petition to compel arbitration. Plaintiff and Respondent Sharon Negrete filed a complaint individually and as the representative of the estate of her deceased mother, Valena I. Kilpatrick (the Estate). The complaint alleged against Grancare on behalf of the Estate elder abuse/neglect and violating the Patient's Bill of Rights under Health and Safety Code section 1430, and individually by Negrete for the wrongful death of Kilpatrick. It was alleged that Kilpatrick's death was caused due to mistreatment while she spent several months in the Monterey Palms Health Care Center (Monterey), which is managed by Grancare. The trial court concluded, applying California arbitration law, that an arbitration clause in the care agreement signed by Kilpatrick was not enforceable against Negrete on her wrongful death claim and that the Patient's Bill of Rights claims could not be arbitrated, and it submitted the entire cause to be litigated in superior court in order to avoid conflicting rulings on a common issue of fact or law.

Graf sued three police officers employed by the San Diego Unified Port District (Port District), after these officers gave him citations for illegally anchoring his boat at Fort Emory Cove in South San Diego Bay.[1] Graf sought injunctive and declaratory relief and damages. The court sustained the officers' demurrer without leave to amend. Graf appeals. We affirm.

Robert Aranda pleaded guilty to committing battery with serious bodily injury (Pen. Code, § 243, subd. (d)). The trial court sentenced him to the upper term of four years in state prison and imposed various fines and fees, including a $154 booking fee.
Aranda appeals, contending the trial court unfairly considered the circumstances of his plea bargain and what his maximum sentence might otherwise have been in deciding to impose an upper term sentence. He also contends the court impermissibly imposed the booking fee without first considering whether he had the ability to pay it. We conclude these contentions lack merit and affirm the judgment.

Todd Wimler appeals from a judgment convicting him of attempted murder, corporal injury to a former cohabitant, and other offenses. He argues the trial court was required to stay the sentence for the corporal injury count under Penal Code section 654.[1] We reject this contention.
Wimler also asserts the trial court imposed an unauthorized administrative screening fee and an excessive probation revocation restitution fine. The Attorney General concedes these errors, and we agree. Accordingly, we modify the judgment to correct the errors concerning the fee and fine, and as so modified, affirm the judgment.

Tina E., mother of the minor, appeals from orders of the juvenile court denying her petition for modification and terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 388, 395.)[1] Appellant contends the court abused its discretion in denying her petition and erred in not finding termination would be detrimental to the minor because the minor would benefit from continued contact with her. We affirm.

A jury convicted defendant Doshmen Jamaal Johnson of the first degree murder (Pen. Code, § 187, subd. (a))[1] of Perry Steele with a special circumstance finding that defendant intentionally committed the murder by discharging a firearm from a vehicle (§ 190.2, subd. (a)(21)). The jury also found true allegations that the murder was committed for the benefit of a street gang (§ 186.22, subd. (d)) and by defendant's personally discharging a firearm, causing death (§ 12022.53, subd. (d)).
Defendant was sentenced as follows: for the murder and special circumstance finding, life in prison without the possibility of parole; for personally discharging a firearm, causing death, 25 years to life; and for the gang enhancement, a term of 10 years.
On appeal, defendant contends (1) the wrongful admission of gang evidence obtained from a Myspace online social networking account alleged to be his denied him due process; (2) without the Myspace evidence, the evidence was insufficient to prove he was the killer; and (3) a criminal conviction assessment of $30 must be stricken as it violates ex post facto principles.[2] We reject the contentions and affirm the judgment.

Plaintiff Stacy Jackson, an employee of defendant Pacific Bell Telephone Company (Pac Bell) for nine years, filed suit against his employer alleging race discrimination, race harassment, and intentional infliction of emotional distress. Pac Bell filed a motion for summary judgment, which the trial court granted. Jackson appeals, arguing he has pleaded sufficient facts to establish each cause of action. We shall affirm the judgment.

Defendant Clark & Sullivan Builders, Inc. (Clark) was the general contractor on the construction of a new transportation maintenance and operations relocation facility for a school district. Plaintiff Bradley Construction, Inc. (Bradley) entered into a subcontract with Clark to provide site preparation, clearing, and earthwork for the project.
Bradley filed a complaint for breach of contract and other equitable claims seeking additional compensation under the subcontract. Clark filed a motion for summary judgment, arguing Bradley's claims were time barred. The trial court granted the motion. Bradley appeals, arguing the subcontract provision relied on by the court is ambiguous and unreasonable. We shall affirm the judgment.

Alberto Baez appeals the October 6, 2010, order revoking his probation and executing a previously stayed state prison sentence (Pen. Code,[1] § 1237, subd. (b)). In accordance with the September 28, 2010, amendment to section 2933, appellant was awarded 80 days actual custody credit and 80 days conduct credit for the time he spent in custody from the date of his arrest on the probation violation until his sentence was executed. The trial court also credited appellant's sentence with the 266 days that were previously awarded under section 4019 when he was convicted in October 2009. Appellant contends the court was required to recalculate these prior credits under the September 28, 2010, amendment to section 2933. We agree with the court's conclusion that the amendment does not apply to the time appellant spent in custody prior to his conviction, the credits for which were included in a judgment that became final in December 2009. The abstract of judgment, however, fails to include the 160 days of credit that were awarded for appellant's time in custody on the probation violation. We shall order the judgment modified to correct this clerical error. Otherwise, we affirm.

Respondent Steadfast Insurance Company (Steadfast) and appellant Gemini Insurance Company (Gemini) were successive insurers of Avanti Roofing Company, a roofing subcontractor (Avanti). A dispute arose between Steadfast and Gemini over amounts to be contributed toward settlement of a residential construction defect case. Gemini believed that the homeowners' settlement demand to Avanti was unreasonable and refused to contribute. As a result, Steadfast had to decide if it would go to trial and face the possibility of a significantly larger judgment, accept Gemini's offer and pay the difference to meet the demand, or pay the entire demand and seek equitable contribution from Gemini. It chose the latter course.

Defendants and appellants Huang Cho Hong, Siu Ling Li, Xi Fan Hong, and Yan Nan Hong appeal from a judgment following a jury trial, entered against them and in favor of plaintiff and respondent Yu Chung Koo. Because appellants have not satisfied their burden on appeal of providing both an adequate appellate brief and an adequate record from which we can properly review alleged claims of error, we deem all issues purportedly raised in their opening brief waived. Even if we were to reach those issues on the merits, we would conclude that judgment was properly entered.
Accordingly, we affirm.

By information filed December 31, 2008, appellant Kenneth Calleros was charged with assault with a firearm (Pen. Code, § 245, subd. (a)(2), counts 1 and 2),[1] willful, deliberate, and premeditated attempted murder of a peace officer (§§ 187, subd. (a) & 664, counts 3 and 4), and assault with a firearm upon a peace officer (§ 245, subd. (d)(1), counts 5 and 6). Firearm enhancements (§§ 12022.5 subd. (a), and 12022.53, subds. (b)-(d)), and great bodily injury enhancements (§§ 12022.7 and 1203.075, subd. (a)) were also alleged. Appellant pled not guilty and denied the special allegations.
Following a jury trial, appellant was convicted on counts 1 and 2. On counts 3 and 4, he was convicted of the lesser included offense of attempted voluntary manslaughter (§§ 192, subd. (a) & 664), and of assault with a firearm (§ 245, subd. (a)(2)) on counts 5 and 6. The jury also found the firearm and great bodily injury enhancements to be true. He was sentenced to a total term of 24 years and 2 months in prison.
Appellant contends that the trial court erred in refusing to instruct the jury regarding a homeowner's right to use deadly force against an intruder (§ 198.5, CALJIC No. 5.44 (Jan. 2005 ed.)).[2] Appellant also seeks review of the trial court's in camera hearing pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We find no error in refusing the requested jury instruction. Nor do we find any abuse of discretion with respect to the in camera hearing. We affirm the judgment

Patrick Ian Lowe appeals from judgment after conviction by jury of four counts of committing lewd acts on a child (Pen. Code, § 288, subd. (a))[1] and one count of dissuading a witness by force or threat. (§ 136.1, subd. (c)(1).)
Appellant contends the court erred when it denied his motion for mistrial based on witness comments. We affirm.

A jury convicted defendant and appellant Kocki Rojas of two counts of violating Penal Code section 288, subdivision (b)(1) and three counts of violating Penal Code section 288.7, subdivision (b)(7).[1] The charges stemmed from appellant's repeated sexual abuse of his girlfriend's daughter, M.L. On appeal, appellant contends that his Sixth Amendment right to confrontation was violated by the admission of a taped interview of M.L., and that his 57 years to life sentence was an abuse of discretion and amounted to cruel and unusual punishment. We affirm.