CA Unpub Decisions

In In re Marriage of Shurr (May 12, 2009, C057456) [nonpub. opn.] (hereafter Shurr I), we reversed in part an August 2007 order of the trial court modifying temporary child and spousal support and deferring consideration of a request for attorney fees. We remanded with directions to recalculate support in accordance with our opinion and to make an appropriate award of attorney fees. Following remand, the trial court recalculated support as directed and entered a new support order. The court also entered an order awarding attorney fees to Melissa Shurr (wife). Brett Shurr (husband) appeals both orders. We conclude husband's challenge to the new support award borders on the frivolous and affirm that order. However, we further conclude the record fails to show the trial court considered all relevant factors before awarding attorney fees and reverse that order. Finally, we reject husband's request that we direct the case be assigned for all purposes to a particular judge of the superior court.
Facts and Proceedings
As recounted in Shurr I, â€

Alameda County Medical Center (Medical Center) requested Medi-Cal reimbursement from the California Department of Health Care Services (Department) for rent and other expenses paid in 2003 by a separate entity, the County of Alameda (County). The Department disallowed the request for reimbursement and the trial court subsequently denied Medical Center's petition for writ of administrative mandamus.
Medical Center contends on appeal that it is entitled to reimbursement for the rent County paid in 2003 because County controls Medical Center and hence County and Medical Center are â€

Defendant Carlos Manuel Rojo-Moreno pleaded guilty to possession of methamphetamine for sale and admitted a prior narcotics conviction. He contends on appeal that the trial court deprived him of due process by refusing to consider his performance under a confidential agreement with the People and law enforcement, and by refusing to determine whether mitigation of his sentence was appropriate in accordance with the agreement. Defendant also contends his rights were violated under People v. Arbuckle (1978) 22 Cal.3d 749 (Arbuckle), because he was not sentenced by the same judge who accepted his plea.
We conclude that because the confidential agreement induced defendant to enter his plea, the trial court was required to determine the terms of the confidential agreement and the performance under that agreement. Defendant may have already received the benefit of his bargain. Depending on the circumstances, however, the trial court may have been required to entertain a request for a reduced prison term in accordance with the agreement, or it may have been required to allow defendant to withdraw his plea.

Albert O. (father) has filed a petition for extraordinary writ (Cal. Rules of Court, rule 8.452) challenging an order of the juvenile court terminating reunification services with his son, A., and setting a hearing pursuant to Welfare and Institutions Code section 366.26.[1] Father contends the juvenile court did not consider certain factors relating to father's incarceration in determining whether father had failed to participate in court-ordered services, and the court erred when it determined that the Los Angeles County Department of Children and Family Services (DCFS) had provided reasonable services. We deny the petition.

Bialik Benjamin is a shareholder and president of MDL Medical Diagnosis Laboratories (MDL). MDL borrowed money from Moshe Shram. Benjamin signed a written promissory note on behalf of MDL and a separate personal guaranty of MDL's loan, as well as deeds of trust securing two parcels of real property as collateral. The personal guaranty included an arbitration agreement. After paying off the principal loan amount plus $279,000 in interest, MDL and Benjamin sued Shram, contending the interest extracted from them was usurious. In response, Shram moved to compel arbitration of the entire action on the grounds the personal guaranty agreement bound both Benjamin and MDL to arbitrate any controversy arising out of the interrelated loan documents. The trial court denied the motion. We conclude the court correctly denied arbitration of the dispute between MDL and Shram but erred in failing to order Benjamin to arbitrate his dispute with Shram. We therefore affirm in part, reverse in part and remand with directions as explained herein.

Plaintiff and appellant Wendell Payne (Payne) appeals a judgment of dismissal following the sustaining without leave to amend of demurrers interposed by defendants and respondents Rudolph Concha (Concha) and Interinsurance Exchange of the Automobile Club (Auto Club) to Payne's third amended complaint.
Payne sued Concha and the Auto Club for falsely claiming Payne was involved in a vehicle accident with Concha on August 17, 2005, while Payne was driving his employer's Freightliner truck. Payne denies his involvement and contends he was falsely implicated in the accident. The trial court sustained defendants' demurrer without leave to amend on the ground an LAPD traffic collision information card (attached as an exhibit to the declaration of defendants' attorney) established Payne's involvement in the accident.
We conclude the trial court erred in looking to evidentiary matter beyond the four corners of the complaint to sustain defendants' demurrers. Whether Payne was involved in the August 17, 2005, accident is a question of fact which cannot be resolved at the demurrer stage. Therefore, the judgment of dismissal is reversed with directions to reinstate the action.

This is the second appeal from Leethiel Payne's conviction of aggravated battery on a peace officer while in state prison. (Pen. Code, § 4501.1, subd. (a).)[1] In our first unpublished decision, People v. Payne (July 21, 2009, B206395 [nonpub. opn.] (Payne I).), we issued a conditional remand directing the trial court to conduct a new hearing on appellant's Wheeler/Batson[2] motion. We also directed the trial court to exercise discretion in determining the proper amount of restitution fine under section 1202.4. On remand, the trial court denied the Wheeler/Batson motion, finding no prima facie showing was made, or alternatively that the rationale advanced by the prosecutor was race neutral and that the challenge was not based on discrimination. It made no order regarding the amount of the restitution fine.
In this appeal and in his related petition for writ of habeas corpus, appellant now claims his absence from the hearing constituted a deprivation of his federal and state constitutional rights to due process and state statutory right to be present. He also contends the trial court erred in denying the Wheeler/Batson motion on the merits. Appellant and respondent agree that remand is necessary for reconsideration of the restitution fine.
We find no violation of appellant's rights based on his absence from the Wheeler/Batson hearing. Appellant failed to make a prima facie case that the prosecutor excused the juror for discriminatory reasons. We agree that the trial court failed to exercise its discretion in setting the restitution fine and remand for that purpose.

This is the second appeal of Wanda Armstrong (Armstrong) concerning her employment with the Burbank Unified School District (district). In the first appeal, this court resurrected her claim for wrongful termination from her position as principal of the Luther Burbank Middle School, after the trial court sustained the district's demurrer to her complaint without leave to amend. (Armstrong v. Burbank Unified Sch. Dist. (April 22, 2008, B193192) [nonpub. opn.] (Armstrong I).) This second appeal concerns the denial of Armstrong's petition for a writ of mandate requiring the district to reinstate her as principal. She contends she was wrongfully terminated after the district failed to comply with Education Code section 44951, which requires a notice of termination to be sent by registered mail or signed by the affected employee no later than the 15th of March preceding the following school year. She claims the district hand-delivered the notice, and that she did not sign it before March 15, 2005. The trial court found that the district complied with section 44951 because Armstrong timely signed the notice. Because we conclude that substantial evidence supports the trial court's finding, we affirm.

A jury convicted Trevor Glenn Landers (Landers) and Anthony Red Vigeant (Vigeant) of first degree murder (Pen. Code, § 187)[1] (count 1), attempted home invasion robbery (§§ 211, 664) (count 2), and first degree residential burglary (§ 459) (count 3).[2] The jury found that the murder was committed while Landers and Vigeant were engaged in an attempted robbery and burglary (§ 190.2, subd. (a)(17)). The jury also found that a principal was armed with a handgun (§ 12022, subd. (a)(1)).
Landers and Vigeant received identical sentences. In count 1, for the crime of first degree murder with the special circumstance of the crime having been committed during an attempted robbery and burglary, the trial court imposed an indeterminate term of life in prison without the possibility of parole. The trial court imposed a consecutive determinate term in count 2 with an additional year for the principal-armed allegation under section 12022, subdivision (a)(1). The trial court stayed a sentence in count 3 pursuant to section 654.

This appeal and cross-appeal concern a boundary dispute between neighbors. The trial court granted a prescriptive easement to plaintiffs Jon N. Manzanares and Nancy Guitierrez (plaintiffs) over an approximately 1.5-foot wide strip of land owned by defendants Angela Bertolino and Carla Lewis (defendants) that lies between plaintiffs' driveway and defendants' house. After a five-day trial, the court also granted to plaintiffs an equitable easement over another approximately 1.5-foot wide strip of defendants' land along the north-south boundary separating the two properties. The trial court limited the duration of the equitable easement to the period of time that either of the plaintiffs owns or resides on their property. In addition, as a condition to granting the equitable easement, the court required plaintiffs to pay to defendants the sum of $40,000.
Neither of the parties is satisfied with the result, and both sides have appealed. We affirm the judgment.

Desiree W. (appellant) appeals from a disposition entered after she admitted committing grand theft (Pen. Code, § 487, subd. (c)[1]), and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). Her counsel on appeal has filed an opening brief that asks this court to conduct an independent review of the record as is required by People v. Wende (1979) 25 Cal.3d 436. Counsel also informed appellant that she had the right to file a supplemental brief on her own behalf. Appellant declined to exercise that right.

Appellant appeals from an order of the trial court revoking his probation and, pursuant to People v. Wende (1979) 25 Cal.3d 436, asks this court to examine the record on appeal and determine if there are any issues in the case that deserve further briefing. We have done so, find none, and hence affirm the trial court's order revoking appellant's probation.

Ning Jiang appeals from orders entered after a judgment of dissolution requiring him to pay his former wife, Lan Vivian Jiang, $7,462 in child support arrears and $37,980 as a share of her attorney fees. The court also ordered the assets in Mr. Jiang's retirement accounts transferred to Ms. Jiang in partial satisfaction of the $85,515 he was required to pay her under the judgment. Mr. Jiang challenges each of the above rulings, as well as the court's termination of jurisdiction over his right to spousal support. We shall affirm.

Defendant appeals from the trial court's denial of his request to withdraw his plea of guilty of inflicting a corporal injury to the mother of his child (Pen. Code, § 273.5, subd. (a)).[1] Defendant maintains that the lower court should have permitted him to withdraw his plea because his trial counsel provided ineffective assistance and because the plea was not supported by a sufficient factual basis. Defendant also challenges the lower court's imposition of a booking fee, a probation supervision fee, and a probation report fee. Additionally, defendant filed a petition for habeas corpus and claims ineffective assistance of trial counsel. We are not persuaded by any of defendant's arguments. Consequently, we affirm the judgment and deny defendant's habeas petition.