CA Unpub Decisions

In this marital dissolution proceeding, the court resolved numerous property and spousal support disputes between former spouses Thomas Todd and Concetta Lombardi. On appeal, Thomas challenges two of the court's rulings: (1) the court's determination that Concetta was entitled to $38,271 based on her monetary contribution to the purchase of property held in Thomas's name; and (2) the court's spousal support order requiring Thomas to pay Concetta $2,500 per month for 25 months. Court conclude Thomas's contentions are without merit, and affirm.

Roberto Chaidez appeals a judgment of dismissal after the trial court sustained without leave to amend the demurrer of the City of La Mesa (the City) and certain officers of the La Mesa Police Department (LMPD)[1] on his complaint alleging that when he was arrested in 2004, cash was taken from him and not reported on a property inventory form. The court determined the complaint does not state a cause of action because Chaidez failed to comply with the claim presentation requirement of the Government Claims Act (Gov. Code, 810 et seq.) and LMPD employees are statutorily immune from liability. Court affirm the judgment on the first issue, which renders the second issue moot.

The court granted an injunction under Code of Civil Procedure section 527.6, prohibiting John Giba from harassing or contacting Kerry Engstrom or her young daughters, and ordering Giba to stay 150 yards away from Engstrom's home and workplace, and from the girls' school. Giba appeals, challenging the sufficiency of the evidence to support the order. Court affirm.

Adele and Tony Rababy own a triangular parcel of land in the commercial district of Rancho Santa Fe. The Rababys and their predecessors in interest have operated a gas station on the northern portion of the property since the mid-1960s. Uncertainty about classification of the parcel as residential or commercial under the Rancho Santa Fe Protective Covenant (Covenant) precipitated the current litigation. Following the first stage of a bifurcated court trial on the cause of action for declaratory relief, the court ruled that the Rancho Santa Fe Association (Association) could not enforce the residential restriction. The Association appeals, arguing that the court "fundamentally misapplied" the standard for enforcement of equitable servitudes under Nahrstedt v. Lakeside Village Condominium Assn., Inc. (1994) 8 Cal.4th 361 (Nahrstedt), and there are no other grounds on which to affirm the judgment. The Association also contends the court erred in denying its request for leave to amend its answer at the close of evidence. We conclude the court acted within its equitable and statutory powers in refusing to enforce the residential use restriction in the circumstances of this case and acted within its discretion in denying leave to amend the answer. Accordingly, Court affirm the judgment.

Paul Jacques appeals from a summary judgment entered against him in his action against La Mesa Dodge, Inc. Jacques contends that the trial court erred in granting the motion because the affidavits he submitted revealed that facts essential to opposing the motion existed but could not be presented. (Code Civ. Proc., 437c, subd. (h), hereinafter 437c(h).) Court agree.

There is an ongoing dispute between defendant and respondent Delia Raskov (Delia) and her stepchildren, plaintiff and appellant Daniel Raskov (Daniel) and Michelle Aaronson (Michelle), over the trusts established by David Raskov (Father) and Delia. In this appeal, Daniel contends the probate court abused its discretion in sanctioning him under Code of Civil Procedure section 128.7 for bringing a motion under Probate Code section 859 and not awarding double damages and attorney fees against Delia.

There is an ongoing dispute between plaintiff and appellant Delia Raskov (Delia) and her stepchildren, defendants and respondents Daniel Raskov (Daniel) and Michele Aaronson (Michele),[1]over the trusts established by David Raskov (Father) and Delia.[2] Delia was the trustee of the two trusts: The David Raskov Inter Vivos Trust (IVT) and the Raskov Family Trust (RFT). The IVT was created on September 18, 1986 (and amended on October 19, 1990, and January 6, 2003). Father died on July 15, 2003, and both trusts became irrevocable. In 2006 Daniel successfully had Delia removed as trustee of the IVT. The probate court ordered that the IVT pay Delia a $1,500 per month stipend from IVT net monthly income. Regarding attorney fees and costs, the court awarded $120,000 to Daniel and Michele, and $40,401 to Delia, and directed that all fees and costs be paid from the IVT. In April 2007, the probate court noted an ambiguity in whether the attorney fees and costs should be paid from trust income or trust principal and reopened the issue for briefing. Following briefing by both sides, the court ordered that payment be made from trust income. Simultaneously, the probate court was considering Delias petition for approval of her account of the IVT. Daniel had filed 13 objections. After the issues were resolved and the account was approved, Delia sought recovery of $66,112.50 in attorney fees which she incurred. Following a hearing, the probate court found that she was entitled only to reasonable fees in the amount of $5,000. Delia has appealed, challenging the probate courts order directing payment of attorney fees from IVT income and the order limiting her recovery of fees to $5,000.

This is another appeal in the ongoing dispute between plaintiff and respondent Delia Raskov (Delia) and her stepchildren, defendants and appellants Daniel Raskov (Daniel) and Michele Aaronson (Michele),[2]over the trusts established by David Raskov (Father) and Delia. In this appeal, Daniel[3]and Michele contend the probate court erred in removing them as successor trustees of the David Raskov Inter Vivos Trust (IVT).

Defendant and appellant Duane Edward Mick (hereafter defendant) appeals from the judgment of conviction entered after a jury found him guilty of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1)[1]and further found true the special allegation that in the commission of the crime he personally used a deadly weapon within the meaning of section 12022, subdivision (b)(1). Defendant raises two claims of error in this appeal. First he contends that because use of a deadly weapon is an element of the crime of assault with a deadly weapon, the trial court should have dismissed that enhancement. The Attorney General concedes the error. Defendant also contends the trial court erred in denying his motion for new trial which defendant based on various claims including ineffective assistance of counsel. Court conclude the Attorney Generals concession is appropriate, and also conclude that the trial court correctly denied defendants motion for new trial. Therefore, Court will modify the judgment accordingly, and affirm.

Following a jury trial, a jury found defendant guilty of burglary (Pen. Code, 459)[1](count 2) and two counts of assault with a firearm ( 245, subd. (a)(2)) (counts 3 and 4).[2] The jury also found true that defendant had personally used a firearm ( 12022.5, subd. (a)) in the commission of counts 2, 3, and 4 and that defendant had personally inflicted great bodily injury under circumstances involving domestic violence ( 12022.7, subd. (e)) in the commission of count 3. Defendant was sentenced to a total term of 22 years in state prison: the upper term of six years on count 2, plus an additional term of 10 years for the firearm use enhancement attached to count 2; a consecutive one-year term (one-third the three-year midterm) for count 3, plus a consecutive term of one year four months (one-third the four‑year midterm) for the firearm use enhancement attached to that count, and an additional term of one year four months (one-third the four‑year midterm) for the great bodily injury enhancement attached to that count; and a consecutive one-year term for count 4, plus an additional one year four months (one-third the four‑year midterm) for the firearm use enhancement attached to that count. Defendants sole contention on appeal is that the trial court erred when it imposed one of the assault convictions consecutive to the burglary offense. Court reject this contention and affirm the judgment.

Defendant and appellant Matthew Addison Crump was charged with inflicting corporal injury on a cohabitant (Pen. Code, 273.5, subd. (a), count 1)[1]and false imprisonment ( 236, count 2). The trial court dismissed count 2 pursuant to section 995. A jury subsequently found defendant guilty of the lesser included offense of committing battery on a person with whom he was in a dating relationship ( 243, subd. (e)(1)). The court suspended imposition of sentence and placed defendant on probation for three years. On appeal, defendant contends the trial court erred in instructing the jury that committing battery on a person in a dating relationship was a lesser included offense of inflicting corporal injury on a cohabitant. Court disagree and affirm.

Defendant and appellant Marianne Lisa Drake contends she received ineffective assistance of counsel when defense counsel did not object to the trial courts reliance on circumstances surrounding her probation violation to impose an upper-term sentence. Court reverse with instructions to conduct another sentencing hearing.

A jury found defendant and appellant Gustavo Vargas guilty of second degree robbery under Penal Code section 211, and evading a police officer by reckless driving under Vehicle Code section 2800.2. Thereafter, the trial court found true the allegations that defendant had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b); had suffered one serious prior felony conviction within the meaning of Penal Code section 667, subdivision (a); and had suffered six prior strike convictions within the meaning of Penal Code sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d). On December 22, 2008, the trial court denied defendants motion to dismiss five of six strike priors under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court sentenced defendant to 50 years to life plus six years in state prison. On appeal, defendant contends that the trial court abused its discretion in denying his Romero motion. For the reasons set forth below, Court shall affirm the judgment.

Defendant, Carlos Rios, then an inmate at Ironwood State Prison,[1]petitioned the trial court for a writ of habeas corpus seeking reversal of a disciplinary action revoking 120 days conduct credit, imposed for possessing inmate-manufactured alcohol (pruno). The trial court granted the relief requested because there was no evidence defendant was connected to the pruno and defendants cellmate admitted it was his. The Warden appeals, contending that the trial court did not properly apply the some evidence standard of review applicable to challenges of prison disciplinary actions on federal due process grounds. Court reverse.