CA Unpub Decisions

In this appeal, plaintiffs and appellants Gina and Mitchell Harpel (appellants) challenge: (1) the order of the trial court sustaining without leave to amend defendant and respondent R&S Homes, Inc.s (R&S) demurrer to their first amended complaint (FAC) against R&S for breach of contract and fraud; (2) the trial courts grant of respondent Robert Waals (Waal) motion for judgment on the pleadings (MJOP) without leave to amend on the same FAC; (3) the trial courts order granting R&S and Waals (collectively, respondents) motions for sanctions against appellants and appellants counsel in connection with the demurrer and MJOP; (4) the trial courts denial of appellants request to reconsider the aforementioned orders; and (5) the trial courts imposition of further sanctions against appellants and appellants counsel in response to appellants request for reconsideration. court affirm in part and reverse in part.

How sharper than a serpent's tooth it is to have a thankless child![1] This is a story of family strife. An elderly man divides his property among his three daughters. Eventually, he comes to believe that he is well loved by only one of his daughters, while the other two engage in endless legal attacks upon him. Dismayed, he rewrites his trust, leaving everything to the daughter he lives with, and nothing to the two daughters who anger and upset him with their legal challenges. The probate court thwarted the fathers intentions to leave everything to one daughter and disinherit the other two. Court reverse.

Plaintiff and appellant Alberto Gutierrez was a teacher at San Fernando High School (SFHS). Defendants and respondents Jose Luis Rodriguez, Kelly Welsh, Kenneth Lee, and Deborah Jelin were administrators at SFHS. Gutierrez alleged in his third amended complaint that defendants retaliated against him for expressing his views regarding purported deficiencies at SFHS and the school district in off-campus public venues, and for participating in off-campus political activities. Defendants conduct, Gutierrez alleged, violated his rights under the First Amendment to the United States Constitution. In his third amended complaint, Gutierrez asserted one cause of action for violation of civil rights pursuant to 42 U.S.C. 1983. Defendants filed a demurrer to the third amended complaint on the ground that it did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer without leave to amend, and then entered judgment in favor of defendants. Gutierrez appeals from that judgment. We reverse the judgment because we hold that the third amended complaint states sufficient facts to constitute a 42 U.S.C. 1983 cause of action.

Michelle S. Lane (appellant) appeals following revocation of her Proposition 36 treatment program and placement on formal probation under terms and conditions that included serving 120 days in county jail. Appellant filed a notice of appeal and requested a certificate of probable cause, which was denied.
Court appointed counsel to represent appellant on this appeal. After examination of the record, counsel filed an opening brief containing an acknowledgement that she had been unable to find any arguable issues. On February 2, 2009, we advised appellant that she had 30 days within which to personally submit any contentions or issues that she wished us to consider. On April 27, 2009, this court granted appellate counsels motion to strike and refile her opening brief and granted appellant 30 days from the date of its order to submit a supplemental opening brief. No response has been received to date.

Brandon Scott Frey (appellant) appeals from the judgment (order granting probation) entered following a court trial in which he was convicted of assault with a deadly weapon or by means of force likely to produce great bodily injury, in violation of Penal Code section 245, subdivision (a)(1).[1] He contends that the evidence is insufficient to support the judgment because it fails to demonstrate that he used a deadly weapon or instrument to commit the assault. Court find no merit to the contention and affirm the judgment.

In the present matter, Case No. PA060727, defendant and appellant Nicholas Frank Armogida was convicted of possession of methamphetamine, in violation of Health and Safety Code section 11377, subdivision (a). He was sentenced to three years in prison. Additionally, appellants probation in another matter (Case No. GA070974) was revoked and he was sentenced to a prison term of two years, to run concurrently with the sentence in Case No. PA060727.
Appellant contends that (1) we should independently review the Pitchess[1]records to determine if the trial court failed to disclose discoverable items; (2) the prosecutor committed misconduct during rebuttal; (3) the trial court abused its discretion in denying his request for Proposition 36 probation; and (4) the trial court erred in revoking his probation in Case No. GA070974.

Defendant and appellant Richard Gonzales was convicted by jury in count 1 of attempted willful, deliberate, and premeditated murder in violation of Penal Code sections 664 and 187, subdivision (a).[1] In count 2, defendant was convicted of assault by a life prisoner in violation of section 4500. In both counts, the jury found defendant used a deadly or dangerous weapon ( 12022, subd. (b)(1)), inflicted great bodily injury on the victim ( 12022.7, subd. (a)), and had suffered a prior serious or violent felony conviction for murder ( 1170.12, subds. (a)-(d) and 667, subds. (b)-(i)). Defendant was sentenced to life in prison without the possibility of parole in count 2, plus a total of nine years in enhancements, including one year for the use of a weapon, three years for infliction of great bodily injury, and five years for the prior murder conviction. A life sentence imposed as to count 1with enhancements totaling nine years was stayed pursuant to section 654. In this timely appeal, defendant argues the evidence is insufficient to support the finding that the attempted murder in count 1 was willful, deliberate, and premeditated. He also contends testimony on the extent of the involvement of the Mexican Mafia prison gang in the charged offenses exceeded the scope of permissible expert testimony, and that if the issue is waived due to the lack of an objection, trial counsel was constitutionally inadequate for failing to object to the evidence. We hold the evidence was sufficient to support the verdict, defendant forfeited the right to challenge admission of the gang experts testimony by failing to object in the trial court, and the record does not establish that counsel was constitutionally inadequate. Court therefore affirm the judgment.

Appellant Jerry Freeman was a firefighter for the City of Long Beach. He applied to the Long Beach Civil Service Commission for a service retirement pending industrial disability retirement pursuant to Government Code section 21151, effective May 2005, based on his history of melanoma. After he was examined by the Occupational Health Physician for the City's Department of Health and Human Services, Dr. Irene Grace, the Long Beach Civil Service Commission found that appellant was not incapacitated for the performance of duty and that he could return to work, subject to certain restrictions. His application for a disability retirement was denied. Appellant appealed the denial to the Long Beach Civil Service Commission and, in accordance with Commission rules, a hearing took place before an administrative law judge. The administrative law judge found that appellant had not proven by a preponderance of evidence that he was substantially incapacitated from performing his usual duties. The Commission approved the judge's findings and denied appellant's disability retirement. Appellant petitioned the superior court for a writ of mandate pursuant to Code of Civil Procedure section 1094.5. The superior court denied the petition on the grounds that the weight of evidence supported the decision of the Long Beach Civil Service Commission.
The decision of the trial court is affirmed.

R.S. (hereafter, father or R.S.) appeals the juvenile courts August 20, 2008 jurisdictional/dispositional order declaring his daughter B.S. a dependent child of the court pursuant to Welfare and Institutions Code section 300, subdivision (b).
Father contends the juvenile court erred in finding he was an alleged/biological father and that the court failed to follow proper procedure which would have enabled him the opportunity to elevate his paternity status. The Los Angeles County Department of Children and Family Services (Department) concedes the juvenile court should have provided father with a JV-505 form consistent with section 316.2, subdivision (b) and does not oppose a limited remand for that purpose. Court accept the Departments concession and reverse and remand for further proceedings.

Defendant and appellant Deron Maurice Crawford appeals from the judgment and sentence imposed after the trial court found defendant in violation of probation. On August 16, 2007, defendant pled no contest to possession of cocaine base for sale (Health & Saf. Code, 11351.5.) The trial court sentenced defendant to a suspended term of ten years in prison and placed him on formal probation for a period of five years with probationary conditions, including participating in periodic anti-narcotics tests and supporting his dependents as directed by the probation officer. On September 11, 2008, the trial court summarily revoked probation and calendared a formal probation violation hearing. Defendant was found in violation of probation following the formal revocation hearing. The trial court imposed the previously stayed ten-year prison sentence, consisting of the midterm of four years for the narcotics offense plus six years for defendants prior violations pursuant to Health and Safety Code section 11370.2, subdivision (a). In his timely appeal, defendant asserts that the trial court abused its discretion by revoking defendants probation because the prosecution failed to prove defendants willful noncompliance with the probationary conditions. Because there was substantive evidence to support the trial courts finding that defendant willfully violated probation, Court affirm.

A jury convicted defendant of possession of cocaine base for sale. (Health & Saf. Code, 11351.5.) Sentenced to state prison for the midterm of four years, defendant appeals.
Court appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief, arguing he was denied the effective assistance of counsel. Defendant also challenges the trial courts denial of his suppression and Marsden motions and the evidence adduced at trial to support his conviction. Court find no error and affirm the judgment.

Defendant Troy Mitchell Naylor appeals from an order of the Yuba County Superior Court committing him to an indeterminate term of confinement with the State Department of Mental Health (DMH) following a jurys finding that he was a sexually violent predator (SVP). On appeal, defendant contends that his indeterminate commitment violates several provisions of the federal Constitution. Disagreeing, Court reject each claim.

After denial of his motion to traverse a search warrant, defendant Dane Aaron Gasper pleaded no contest to cultivation of marijuana, and other charges were dismissed. (Health & Saf. Code, 11358.) The trial court granted probation, and defendant appealed. Defendant contends the adoption of Proposition 215 and related statutory enactments allowing the cultivation and use of marijuana for medical purposes means that marijuana is no longer presumptively illegal, and therefore its smell cannot provide probable cause. Court affirm.

Following a bench trial, the court found defendant William St. Clair liable to plaintiffs Alexander Ray Borel and Brenda Jo Borel for negligently performed labor to install wind and solar generating systems on the Borels ranch. The trial court found St. Clair had a duty to the Borels because his contractors license was used for the project, and his knowledge of that use created a duty to ensure the work was done appropriately. As a result, the trial court found St. Clair liable for the costs required to correct the negligently performed work, including the restoration of power to an agricultural well on the ranch. On appeal, St. Clair claims the trial court erred by going beyond the pleadings in finding a duty of care in negligence based on the use of his contractors license. He also claims there was insufficient evidence to support the award of damages for the restoration of power to the agricultural well. The Borels filed a motion for sanctions on the ground the appeal was objectively frivolous. We agree the trial court went beyond the pleadings in finding a duty in tort, but we conclude that error was harmless because the evidence was sufficient to support the damages awarded on a contract theory. Thus, Court will affirm the judgment. In addition, Court deny the Borels motion for sanctions.