CA Unpub Decisions

Appellant Melvin Phillips filed a probate court petition and objection to accounting, challenging actions of his siblings -- defendants Buddy Phillips and Marjorie Woodward (trustees) -- as trustees of a trust (Prob. Code, 16000 et seq.[1]) created by their mother, Beatrice Phillips, and as her attorneys-in-fact under a power of attorney ( 4400 et seq.). After a bench trial, Melvin[2] appeals from the judgment entered in favor of the trustees. We shall conclude that, with one exception, any breach of trust was excusable in the trial courts discretion under section 16440[3] because the trustees acted reasonably and in good faith. The one exception is that the trial court erred in failing to find an inexcusable breach of duty when the trustees took $500 out of a trust payment to Melvin to satisfy a personal debt Melvin owed to Buddy. Court shall partially reverse the judgment and remand for the trial court to determine the remedy for that single breach.

A jury convicted defendant Monique Edith Henriquez of infliction of corporal injury upon a spouse (Pen. Code, 273.5, subd. (a); all further statutory references are to this code), assault with a deadly weapon ( 245, subd. (a)(1)), infliction of pain or mental suffering on two children, a misdemeanor ( 273a, subd. (b)), and damage to a telephone line or apparatus, a misdemeanor ( 591). Granted probation, defendant appeals. She contends that the trial court lacked jurisdiction over the case because an information was not filed and the parties did not stipulate that the complaint could be deemed an information. We will reject this contention. She also contends that certain probation conditions are unconstitutionally vague because of the lack of a knowledge requirement. The People concede. Court accept the concession and will modify the probation conditions accordingly. Court will otherwise affirm the judgment.

In May 2008, at the request of Child Protective Services, Sacramento County sheriffs deputies conducted a welfare check on a potential victim of sexual molestation. The minor, an 11-year-old female, was uncooperative with the deputies. Her mother, however, advised the deputies that the night before, the child reported being raped by defendant, Hernan Guillermo Rodriguez-Navarrette. The minors mother further reported that she had spoken to defendant, who lived in a neighboring apartment, and he had admitted to having intercourse with the minor. According to the victims mother, defendant explained that the victim had come to his bedroom on May 18, 2008, and laid her head on his chest. They started kissing and he penetrated her with his finger. Defendant then realized what he was doing, stopped, and told the child to leave. The mother also told the deputies that the child had previously been molested by her grandfather.

L.Y., mother of the minors, appeals from orders of the juvenile court denying her petition for modification and terminating her parental rights. (Welf. & Inst. Code, 366.26, 388, 395 [further undesignated statutory references are to the Welfare and Institutions Code].) Appellant contends the juvenile court abused its discretion in denying her petition for modification and erred in failing to find she had established an exception to the preference for adoption as a permanent plan. Court affirm.

Manuel Gonzalez, individually and as trustee for Laurie Valadez, and Laurie Valadez sued defendants NMS Realty/Mortgage Corporation dba Pacific Fidelity Funding and dba Access Realty ("NMS"); Elaina Maria Michelucci-Hardrick, and her husband, William Hardrick (together, "the Hardricks"); Karin Jordan; Harold Lear; GMAC Mortgage, LLC ("GMAC"); and Wells Fargo Bank, N.A. ("Wells"), alleging they were victims of a rescue/refinance equity theft scheme in which they lost their home. The trial court sustained demurrers, without leave to amend, brought by defendants to each of the causes of action of the operative amended complaint filed January 23, 2008 (the complaint). Gonzalez and Valadez appeal. Court affirm the judgment in favor of GMAC and Wells. We also affirm the judgment with respect to Valadez because she lacks standing. We conclude, however, that the complaint alleges facts sufficient for Gonzalez, individually and as trustee for Valadez, to state causes of action against Michelucci-Hardrick and NMS for breach of contract, breach of fiduciary duty, fraud, negligent infliction of emotional distress and unfair business practices, but not for violation of the Truth in Lending Act (TILA) (15 U.S.C. 1601 et seq.) or usury. Accordingly, we reverse, in part, the judgment in favor of Michelucci-Hardrick and NMS.

Samuel Kaplan appeals from a judgment, following a bench trial, in his lawsuit seeking to recover from Richard Whitmark, doing business as Rancho Viejo Glass (Whitmark), with whom Kaplan contracted to install glass in a residential building. Kaplan contends that (1) the trial court awarded inadequate damages to compensate him for Whitmark's breach of contract; and (2) the trial court erred in concluding that Whitmark was entitled, on his cross-complaint, to recover $4,489.59 in additional charges that were not reflected in a written change order to the parties' contract. As Court explain, Court conclude (1) that Kaplan waived his challenge to the inadequacy of the damages award by not bringing a motion for new trial; and (2) that the trial court erred in awarding $4,489.59 to Whitmark on his cross-complaint.

Suzanne S. Winn appeals from the trial court's ruling on her order to show cause for modification of child support and for child support arrearages. Winn contends that the trial court erred in rejecting the method proposed by her economic expert for determining the earning capacity of her ex-husband, Karl B. Higgins, under Family Code section 4058, subdivision (b). As Court will explain, we conclude that Winn's contentions are without merit, and accordingly Court affirm.

A jury convicted Michael Jennison of second degree murder in the killing of his real estate agent, James Magot. It also found true allegations that Jennison intentionally and personally discharged and personally used a firearm causing Magot's death. The court imposed a mandatory sentence of 40 years to life. (Pen. Code, 190, subd. (a) & 12022.53, subd. (d).) The sole issue on appeal is whether the trial court erred in denying Jennison's motion for new trial based on jury misconduct. The alleged misconduct consisted of the jury members reading a newspaper article referring to suppressed evidence which the court inadvertently sent to the jury room during deliberations. Court conclude there was no misconduct and, in any event, no prejudice. Accordingly, Court affirm the judgment.

Mariam D. (Mother) appeals a judgment terminating her parental rights to her minor daughter, Mariam M. D. (Mariam), under Welfare and Institutions Code section 366.26. Mother challenges the sufficiency of the evidence to support the court's finding Mariam was adoptable. Court affirm the judgment.

V.L. and Mario G. appeal the findings and orders entered at the 18-month review hearing held under Welfare and Institutions Code section 366.21. Citing In re Sade C. (1996) 13 Cal.4th 952, they ask this court to exercise its discretion to review the record for error. In In re Sade C., the California Supreme Court held review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting his [or her] custody of a child or his [or her] status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) We therefore deny their requests to review the record for error and to address their Anders issue. (Anders v. California (1967) 386 U.S. 738.) V.L.'s and Mario's counsel also requests leave for them to file a supplemental brief in propria persona. The request is denied.

L.E. (mother) is the mother of A.T., a girl born in November 2003, and A.M., a boy born in January 2001 (the children). A.M., Sr. (father) is the father of A.M., and, along with mother, of the childrens deceased younger sister, E.M. Mother appeals from the juvenile court rulings: 1) denying her petition under Welfare and Institutions Code Section 388[1]; and 2) terminating her parental rights to both children and selecting adoption as their permanent plan. Specifically, mother argues: 1) she established changed circumstances and that allowing reunification services or visitation would have been in the childrens best interest; and 2) the court erred in declining to apply the parental relationship benefit exception to the presumption for adoption.

In a previous opinion, we affirmed a jury verdict for defendant Bacchus Vineyards in this breach-of-contract action. Plaintiffs Ennis Commercial Properties, LLC, Ennis Homes, Inc., and HA Devco, Inc., now appeal from an award of attorneys fees the trial court granted pursuant to an attorneys fees clause in the parties contract. Plaintiffs first contend that the fee award should be reversed because the defense verdict should be reversed, but our previous affirmance of the verdict disposes of that claim. Plaintiffs also attack the amount of the award. Though the trial court awarded less than the full amount claimed by defendant, plaintiffs say the amount was still excessive and the court abused its discretion in refusing to reduce it further.

On June 18, 2007, appellant Ronald Harold Pistoresi was involved in a physical confrontation with Allan Turner. Pistoresi was an elected member of the Board of Directors of respondent Madera Irrigation District (District), and Turner was the Districts general manager. The altercation spawned three lawsuits. Pursuant to Code of Civil Procedure[1]section 527.6, Turner and Pistoresi each sought permanent and temporary injunctions against the other in Turner v. Pistoresi (Madera Super. Ct. case No. MCV036950) and Pistoresi v. Turner (Madera Super. Ct. case No. MCV36966). The District jumped into the fray when, pursuant to section 527.8, it filed Madera Irrigation District v. Pistoresi (Madera Super. Ct. case No. MCV036972), seeking permanent and temporary injunctions against Pistoresi. It is this last case which has generated the two appeals currently before this court. The two appeals were ordered consolidated on October 23, 2008.

It was alleged in an information filed January 29, 2008,[1]that appellant Tony Akroush committed conspiracy to bring a controlled substance into a prison (Pen. Code, 182, subd. (a)(1), 4573; count 1), conspiracy to sell, administer, furnish or give away a controlled substance to a state prison inmate (Pen. Code, 182, subd. (a)(1), 4573.9; count 2) and possession of a controlled substance by a person confined in state prison (Pen. Code, 4573.6; count 4), and that appellant had served four separate prison terms for prior felony convictions (Pen. Code, 667.5, subd. (b)).
It was also alleged that appellants codefendant, Brandi Lyons, was appellants coconspirator in counts 1 and 2, and that she brought a controlled substance into a prison, in violation of Penal Code section 4573. On August 11, pursuant to a plea agreement, appellant pled no contest to count 2 and the court dismissed the remaining counts and the prior prison term enhancement allegations.