CA Unpub Decisions

Plaintiff William Palmer entered into a contingency fee agreement with defendant Chris Lusby Taylor under which Palmer agreed to act as Taylor's attorney in an action against Intel Corporation (Intel). The contingency fee agreement did not fully comply with Business and Professions Code section 6147. After the Taylor/Intel action settled, Taylor refused to fully compensate Palmer under the agreement. Palmer filed an action against Taylor for breach of the contingency fee agreement seeking $131,000 in fees, plus his costs and attorney's fees. Palmer also alleged many other causes of action against Taylor. Taylor exercised his right under Business and Professions Code section 6147 to void the contingency fee agreement, and, as a result, prevailed on the breach of contract cause of action. The Palmer/Taylor action proceeded to trial on a single cause of action for quantum meruit, and Palmer prevailed. After judgment was entered for Palmer, Taylor filed a motion to recover over $239,000 in attorney's fees and costs under the attorney's fees provision in the contingency fee agreement pursuant to Civil Code section 1717. The trial court found that Taylor was the prevailing party on the contract and awarded him all of the fees and costs he sought.
On appeal, Palmer contends that (1) the trial court erred in finding Taylor to be the prevailing party under Civil Code section 1717, (2) the trial court's award of fees to Taylor conflicted with the legislative intent underlying Business and Professions Code section 6147, and (3) the trial court abused its discretion in awarding Taylor an unreasonable amount of attorney's fees.[1] We reject his first two contentions. However, we conclude that the trial court failed to properly exercise its discretion in determining the amount of the attorney's fees award. Consequently, Court reverse the order.

A jury found defendant Jose DeJesus Jaimes guilty of lewd conduct with a child under 14 years old, rape, and oral copulation by force and further found true enhancement allegations that each offense occurred during the commission of a burglary and that the offenses involved more than one victim. (Pen. Code §§ 288, subd. (a), 261, subd. (a)(2), 288a, subd. (c)(2), 667.61, subds. (a), (b), (d), & (e).) The court sentenced defendant to prison for a term of 50 years to life.
On appeal from the judgment, defendant claims the court erred in admitting evidence of an uncharged act and inadequately instructing the jury on the burglary enhancement.
Court affirm the judgment.

On May 21, 2007, the Monterey County District Attorney filed a petition to commit defendant Roy Neal Shelton as a sexually violent predator (SVP) under the SVP Act. (Welf. & Inst. Code, § 6600 et seq.)[1] On October 21, 2008, a jury found the allegations in the petition true, and the court ordered defendant committed to the custody of the Department of Mental Health (DMH) for an indeterminate term.
On appeal from the commitment order, defendant claims the delay in commencing the SVP trial denied him due process of law. He claims the court erred in admitting the testimony of a psychologist concerning the Sexual Offender Commitment Program. Last, he claims the SVP Act, as amended in 2006 and applied to him, violates his constitutional rights to equal protection and due process and also the constitutional protections against ex post facto legislation and double jeopardy.
Court agree that the pretrial delay violated defendant's constitutional right to procedural due process and reverse the order of commitment.

Defendant Michael Corbett was convicted by a jury of multiple sexual offenses against a child and one misdemeanor count of violating a protective order. He was sentenced to an aggregate term of 24 years plus 60 years to life in prison.

A jury convicted defendant Lorenzo Alan Perez of driving under the influence (DUI) and with a blood-alcohol concentration (BAC) greater than .08 percent with a prior felony DUI (Veh. Code, §§ 23152, subds. (a) & (b), 23550.5, subd. (a); all statutory references are to the Vehicle Code unless noted). Perez contends the record contains insufficient evidence he was too impaired to drive. For the reasons expressed below, Court affirm.

The trial court granted summary judgment in favor of an employer and an employee-supervisor on the ground the one‑year statute of limitations had run against a former employee's claims of sexual harassment and retaliation. It is clear to us that there would be a triable issue of material fact whether the former employee was sexually harassed. But it is equally clear the statute of limitations ran on her claims. The last act of harassment or retaliation occurred in January 2007, and the administrative complaint was not filed until May 2008, long after the applicable statute ran.
Accordingly, we must affirm the judgment entered in this case. The undisputed material facts establish that (1) Irene Trovato failed to initiate her case against her former employer, Beckman Coulter, Inc. (Beckman), and her former supervisor, Michael Allyn, within the statutory time limits, and (2) the continuing violation doctrine does not save Trovato's untimely action because the unlawful conduct stopped no later than January 31, 2007. Additionally, we conclude the trial court properly denied Trovato's motion for a new trial, because the evidence Trovato claimed was newly discovered would not have produced a different result.

Jose Antonio Gutierrez III was convicted of felony possession of a controlled substance pursuant to a plea agreement. On appeal, he challenges the trial court's partial denial of his motion to discover items in the arresting officer's personnel records, which he contends may have affected the disposition of his subsequent suppression motion. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) Court affirm the judgment.

A jury convicted defendant Jayne Clark of receiving stolen property (Pen. Code, § 496, subd. (a); all further statutory references are to this code), found her not guilty of grand theft (§ 487, subd. (a)), and hung on the burglary count (§§ 459, 460, subd. (a)), which the trial court later dismissed after declaring a mistrial. After a restitution hearing, the court suspended imposition of sentence, placed defendant on probation for three years and fixed the restitution amount at $145,000.
Defendant contends the evidence is insufficient to support her receiving stolen property conviction. She also argues the restitution order should be reversed because her due process rights were violated and a probation condition was imposed, unrelated to the crime for which she was convicted. Finding no error, Court affirm.

Tamara Thul appeals from an order imposing $80,000 in sanctions against her, payable at a rate of $800 per month, stemming from her uncooperative and unreasonable conduct during the course of the litigation dissolving her marriage to James Thul. Tamara challenges the order on several grounds, none of which is persuasive, and Court consequently affirm the order.

Defendant Joaquin Estrada Delgado was convicted of committing multiple lewd acts upon his daughter and stepdaughter. Defendant challenges his convictions on several grounds. We reject each of defendant's challenges, and affirm the judgment.

Defendant Jose Anthony Verduzco shot and killed his wife's lover after having made repeated threats to kill him. The jury convicted defendant of first degree murder and found he used a firearm in the commission of the murder. Defendant contends his conviction should be reduced to voluntary manslaughter because the evidence does not support a murder conviction. He also contends the prosecutor committed misconduct during closing argument, his trial attorney was ineffective in failing to object to the misconduct, and the court erred in imposing a consecutive 25 years to life term on the firearm use enhancement. Court affirm.

This appeal concerns Hassan Malaklou's[1] child support obligation to his three children. Hassan and his ex-wife Nahid have been in and out of court since 1986. Nahid appeals from a 2009 trial court order concluding she waived the children's claim to child support arrears. The order was based on the trial court's interpretation of a 2003 marital settlement agreement and stipulated judgment containing a broadly worded general release and waiver of all claims between the parties. Nahid asserts the 2003 waiver could not have related to support arrears because Nahid turned over her child support enforcement rights to the Orange County District Attorney's Family Support Division (now the Orange County Department of Child Support Services) (DCSS). Alternatively, Nahid claims when she signed the stipulated judgment there was no bona fide dispute regarding the calculation of arrears that could have been compromised by a general waiver. The trial court agreed with Hassan's argument there was substantial evidence the stipulated judgment was a valid waiver of support arrears. We conclude parents cannot simply waive all child support arrears and, in this case, there was no evidence of an accord and satisfaction (a compromise) regarding arrears. Accordingly, the trial court's order reaching a contrary result is reversed and remanded. For reasons we will explain, we direct the family law court to consider Nahid's claim to collect any child support owed from July 1999 and thereafter.

A jury convicted Braulio Ernesto Carrera of one count (count 1) of forcible rape (Pen. Code, § 261, subd. (a)(2)), two counts (counts 2 and 3) of committing a lewd act upon a child (id., § 288, subd. (c)(1)), and one count (count 6) of continuous sexual abuse of a child under the age of 14 (id., § 288.5, subd. (a)). The trial court sentenced Carrera to the upper term of 16 years on count 6 with a consecutive upper term of eight years on count 1 for a total prison term of 24 years. The court imposed a concurrent term of two years on count 3 and stayed execution of a two‑year term on count 2 pursuant to Penal Code section 654.
Carrera challenges his conviction and sentence on three grounds: (1) former CALCRIM No. 362 (new Jan. 2006) was erroneous and the error was prejudicial; (2) substantial evidence does not support the conviction for forcible rape because there was no evidence at trial of force, fear, menace, or duress; and (3) the trial court erred by imposing a full, separate, and consecutive sentence on count 1 pursuant to Penal Code former section 667.6, subdivision (d) (former section 667.6(d)).
We conclude any error in giving former CALCRIM No. 362 was harmless and substantial evidence established Carrera committed forcible rape. Although the trial court erred by imposing a full, separate, and consecutive sentence on count 1 pursuant to former section 667.6(d), remand for resentencing is unnecessary because, absent the error, the court would have exercised its discretion to impose a consecutive sentence on count 1 pursuant to Penal Code section 667.6, subdivision (c) (section 667.6(c)).

Appellant, L.H.L. (L.), appeals from the juvenile court's order denying his petition pursuant to Welfare and Institutions Code section 388 to modify the court's prior order terminating reunification services for his child, M.H. (M.).[1] The court denied appellant's petition on June 18, 2010, and terminated appellant's parental rights. Appellant contends he demonstrated changed circumstances and the juvenile court abused its discretion in denying his petition. Appellant further contends the juvenile court erred in failing to find the beneficial parent-child relationship exception applied to this case. Court reject these contentions and will affirm the juvenile court's judgment.