CA Unpub Decisions

After a bench trial in this mortgage and foreclosure dispute, a deed executed in favor of respondent Richard T. Homem was rescinded and title to real property was returned to appellant Lisa Charter. The trial court rejected her cause of action for damages under the Mortgage Foreclosure Consultant Act (MFCA). (Civ. Code,[1] § 2945 et seq.) Charter appeals, contending that the trial court erred when it found that (1) usury laws did not apply to this matter and (2) Homem did not act as a foreclosure consultant. We affirm the judgment.

J.M. appeals from an order denying a petition to seal his juvenile records. His contentions that the juvenile court abused its discretion or, at a minimum, was required to state its reasons are without merit. Accordingly, we affirm.

Appellant John R. McIntosh was a California-based employee of Powered, Inc. (Powered or the Company), a Delaware corporation with its principal place of business in Texas. MacIntosh sued Powered on claims including age discrimination, wrongful termination and California Labor Code violations. Powered moved to compel arbitration of the claims in Texas, as provided by the terms of Powered's written employment agreements with MacIntosh. The trial court found both procedural and substantive unconscionability in at least two provisions of the employment agreements. The court declined to sever the objectionable provisions and denied the motion. We agree that one provision of the employment agreements is unconscionable, and thereby unenforceable, but find that the offending provision is severable. We therefore reverse and remand with directions to grant the motion.

Following a hearing held pursuant to Welfare and Institutions Code section 366.26,[1] the trial court entered orders on April 6, 2010, terminating appellant and petitioner Erin B.'s parental rights with respect to her son G.W. Thereafter, Erin B. (mother) filed this appeal, and subsequently, a petition for writ of habeas corpus. On appeal and in her petition for writ of habeas corpus, mother contends that her trial counsel rendered ineffective assistance at a six-month review hearing held on September 22, 2009, which resulted in the termination of reunification services to mother. Upon careful consideration of the respective positions of the parties on this question, we shall affirm the trial court's section 366.26 order and deny the petition for writ of habeas corpus.

Deutsche Bank National Trust Company (Bank) has filed a motion to dismiss two appeals filed by Dessanola Juanita Swain (Swain). We grant the Bank's motion because, in both instances, Swain has appealed from non-appealable orders.

Erhan Kayik (appellant) appeals from a judgment entered after a jury convicted him of second degree murder. (Pen. Code, §§ 187, 189.)[1] He contends the judgment must be reversed because (1) the trial court instructed the jury incorrectly, (2) the court erred when it denied his motion for a new trial, and (3) the court erred when it admitted certain evidence. We conclude the court did not commit any prejudicial errors and will affirm the judgment.

Alan Kizor appeals from an adverse summary judgment on his construction defect claims against the architect, contractor and others involved in the design and construction of the home which he purchased from its original owners. Because the defects had caused significant known damage to the former owners, the trial court ruled that any causes of action based on those defects accrued only to the former owners, and that because the former owners had not assigned their claims to Kizor, he is not entitled to assert those claims. We conclude the trial court correctly applied the law as articulated in Krusi v. S.J. Amoroso Construction Co., Inc. (2000) 81 Cal.App.4th 995, 1005 (Krusi) and shall affirm the judgment.

Defendant Ferdinand Mendoza Garcia was charged by information filed July 22, 2010, with two counts of presenting a false or fraudulent insurance claim. (Pen. Code, § 550, subd. (a)(1).) On September 28, 2010, defendant made a Marsden motion,[1] and the court held a hearing on the motion. Following the hearing, the court denied the motion. The jury trial began the next day.

Defendant Andre Dee Scott appeals from a judgment imposing a state prison sentence of three years and four months following his no contest pleas to criminal charges of possessing a controlled substance for sale (Health & Saf. Code, § 11351) and forcibly resisting an officer (Pen. Code, § 69) filed by the District Attorney and following a court trial on the prior conviction allegation. The prior conviction allegation was from a juvenile court adjudication. The trial court concluded that the prior conviction allegation was true and used it to double the defendant's sentence under the Three Strikes law.
Defendant raises two issues. The first issue is that the use of juvenile adjudications to enhance a defendant's sentence under California's Three Strikes law violates the Federal Constitution's Due Process Clause, and the second issue is that the use of the juvenile adjudication to enhance a defendant's sentence under California's Three Strikes law violates the Sixth Amendment, given that juveniles do not enjoy a right to a jury trial in juvenile proceedings in this state. We shall affirm.

This appeal arises from a defamation action involving the parties' writings about each other in Vietnamese language newspapers. Appellant Tam Nguyen (Tam)[1] filed a complaint in which he alleged that respondent Tron D. Do (Tron) had defamed him in a paid editorial published in the Tin Viet News newspaper. Tron filed a cross-complaint alleging that Tam had defamed him in an article he wrote for the SaigonUSA News (SaigonUSA) newspaper. The parties do not dispute that for purposes of their defamation claims they are limited public figures.
After a 12-day court trial, the trial court found in Tron's favor on his cross-complaint and ruled against Tam on his complaint. The court determined that Tam's statements in his SaigonUSA article constituted libel per se because the statements could be reasonably construed to accuse Tron of charity fraud and of willfully associating with Vietnamese communist leaders. The court awarded Tron general damages of $10,000 and punitive damages of $50,000. However, the court determined that Tron's statements about Tam in his Tin Viet News paid editorial constituted constitutionally protected expressions of Tron's opinions and awarded Tam nothing on his complaint.

Petitioner, Santos Solano Flores, seeks relief from the failure to file a timely notice of appeal from his criminal conviction. We agree Flores is entitled to relief and therefore the petition is granted.
Following a trial, a jury convicted Flores of two felony offenses and he was sentenced to a total term of 50 years to life. In his declaration, trial counsel states he advised Flores at the sentencing hearing that he would file a notice of appeal on his behalf. According to trial counsel, due to a calendaring error, the notice of appeal was inadvertently filed one day late. (Cal. Rules of Court, rule 8.308(a).)
The Attorney General does not oppose granting the petition without the issuance of an order to show cause. (People v. Romero (1994) 8 Cal.4th 728.)

Mother L.A. appeals the juvenile court's dispositional order to the extent that the oldest of her four children, 11-year-old son J.G., was placed apart from his three siblings. Even if this issue had not been forfeited by mother's failure to raise it at trial, we would conclude the court did not abuse its discretion in approving separate foster care placement for J.G. based on substantial evidence of J.G.'s behavioral history and Orange County Social Services Agency's (SSA) difficulty in obtaining a single foster care placement for all four children. Court therefore affirm.

A jury convicted defendant Christopher Lamont Brantley of torture (count 1, Pen. Code, § 206),[1] aggravated assault with an ashtray (count 2, § 245, subd. (a)(1)), false imprisonment by violence (count 4, §§ 236, 237, subd. (a)), and domestic battery with corporal injury (count 5, § 273.5, subd. (a)), but could not reach a verdict on count 3, making criminal threats (§ 422). As to counts 2, 4, and 5, the jury found defendant personally inflicted great bodily injury on the victim under circumstances involving domestic violence. (§ 12022.7, subd. (e).)

Craig and Jeanne Petrik and several other homeowners were involved in a lengthy construction defect case. They were represented by Douglas L. Mahaffey and his law firm Mahaffey & Associates (collectively referred to in the singular as Mahaffey). Mahaffey settled the Petriks' case for $400,000 pursuant to a Code of Civil Procedure section 998 offer.[1] The Petriks sought relief from the offer, claiming Mahaffey did not have their authority to make the statutory offer to compromise. The trial court determined the offer was valid and refused to vacate the judgment. This court affirmed the trial court's ruling. (Petrik v. FN Projects, Inc. (April 6, 2005, G033528)
[nonpub. opn.].)