CA Unpub Decisions

The trial court dismissed this case pursuant to Code of Civil Procedure sections 583.310 and 583.360 because the plaintiffs failed to bring it to trial within five years of its commencement. The plaintiffs, Restituto and Magdelena Dumag, argued that these statutes did not apply because the trial court had stayed the entire action, for almost its entire pendency, on account of the bankruptcy of defendant Robert E. Allen. Code of Civil Procedure section 583.340, subdivision (b), tolls the five-year period while [p]rosecution or trial of the action was stayed or enjoined. The trial court reasoned that dismissal was still required because the Dumags failed to act diligently to comply with the trial courts instructions to obtain relief from the bankruptcy court, sever Allen, or dismiss him. In doing so, the trial court applied an incorrect legal standard, for there is no lack-of-diligence exception to the tolling provision of Code of Civil Procedure section 583.340, subdivision (b). The defendants also argued to the trial court that the case should be dismissed because Allens debt to the Dumags was discharged in bankruptcy and because the statute of limitations and defects of pleading prevented the Dumags from obtaining judgment against defendants Chris Marx and David Morgan. The trial court did not rule on these claims. Defendants advance them now as alternative bases for affirmance of the dismissal, but as we will explain, these claims are not appropriate for decision in the first instance in this court. Court reverse.

Appellant, Anthony Garcia, pled no contest to attempted grand theft from a person (Pen. Code, 487, subd. (c)). On February 25, 2009, the court placed Garcia on probation for five years on condition that he serve 99 days local time with credit for 99 days served. On appeal, Garcia contends the court erred in imposing a $10 fine pursuant to section 1202.5 that with penalty assessments and surcharges totaled $36. We will find merit to this contention. In all other respects, Court affirm.

It was alleged in a juvenile wardship petition that appellant B.L., a minor, committed felony violations of Penal Code section 487, subdivision (d)(1) (grand theft of an automobile; count 1), and Vehicle Code section 10851, subdivision (a) (unlawful taking or driving of a vehicle; count 2). Following a jurisdiction hearing, the juvenile court found both allegations true and, pursuant to Penal Code section 17, subdivision (b), declared both offenses to be misdemeanors. In a disposition hearing covering the instant case and a separate case in which appellant suffered an adjudication of disobeying a court order (Pen. Code, 166, subd. (a)(4)), was placed on probation and was later found to be in violation of probation, the court continued appellant on probation for a period not to exceed three years; declared appellants maximum term of imprisonment (Welf. & Inst. Code, 726, subd. (c)) to be one year six months, less 105 days credit for time served; and ordered him committed to Camp Erwin Owen. On appeal, appellant argues as follows: The court erred in adjudicating him of both of the instant offenses. Alternatively, he argues, if both adjudications may stand, the court erred in failing to stay punishment on one of them pursuant to Penal Code section 654. Court will conclude that one of appellants adjudications must be reversed and remand for further proceedings.

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent courts order issued at a contested six-month review hearing denying him custody of his son, M., terminating his reunification services and setting a Welfare and Institutions Code section 366.26 hearing to implement a permanent plan. Court deny the petition.

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent courts order issued at a contested six-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her son M. Court will deny the petition.

On November 23, 2009, petitioner filed a petition for writ of habeas corpus seeking relief to file a belated notice of appeal. The petition reflects that on September 4, 2009, petitioner was convicted after a jury trial of violation of Penal Code section 187 along with accompanying enhancements. On that same date, petitioners attorney advised petitioner he would file a notice of appeal on petitioners behalf. On or about October 1, 2009, petitioners attorney and his staff prepared a notice of appeal which was placed in the attorneys law office court file, a file that contains papers to be filed in court. For reasons not set forth in the record, the notice of appeal was not filed or processed by the Merced County Superior Court. When trial counsel became aware of the same, he promptly filed a notice of appeal on petitioners behalf. The instant petition for writ of habeas corpus seeking leave to file a belated notice of appeal followed.

A jury convicted Taron Donnell Maddox of attempted murder and assault with a firearm. It also found true allegations that, in committing those offenses, he acted for the benefit of a criminal street gang and vicariously discharged a firearm. Maddox contends there is insufficient evidence to support the jurys verdict, but Court disagree and affirm the judgment.

Plaintiff Hung Tan Phan appeals from a judgment entered in favor of defendants in his defamation case after the defendants successfully moved for judgment on the pleadings. Because the trial judge was correct in determining that the allegedly defamatory email that is the subject of Phans action was encompassed within the absolute litigation privilege of Civil Code section 47, subdivision (b), Court affirm the judgment.

L.D. (father) and K.S. (mother) appeal from the juvenile courts order terminating parental rights and freeing their children, J.D. (born in 1997) and I.D. (born in 1998), for adoption. They contend the court violated fathers due process rights by terminating his parental rights without finding he was an unfit parent. For the reasons expressed below, Court affirm the order terminating parental rights.

Defendants Robert Anthony Sanchez and Jorge Ayala were charged by indictment with the murder of 15-year-old Christian Jimenez (Pen. Code, 187, subd. (a) (count 1)),[1] and the aggravated assault and attempted murder of his 14-year-old friend, Luis L. ( 245, subd. (a)(1), 187, subd. (a), 664, subd. (a) (counts 2 & 3)). The indictment alleged that, as to count 1, one of the principals intentionally and purposefully discharged a firearm causing the victims death ( 12022.53, subds. (b)-(e)) and, as to counts 2 and 3, that each defendant was armed with a firearm ( 12022, subd. (a)(1)). The indictment also alleged that defendants had committed the crimes to benefit a criminal street gang. ( 186.22, subd. (b)(1).) The jury found both defendants guilty as charged, found all the enhancement allegations to be true, and found the murder to be of the first degree.

The minor J. C. appeals from a juvenile court order dismissing two probation violation matters but continuing the minor on probation for the underlying matter due to an outstanding balance on its disposition order to pay victim restitution. The minor contends that she is entitled to have the underlying matter dismissed pursuant to the agreement she signed in order to participate in the Juvenile Treatment Court drug program (JTC). As Court disagree with the minors contention, Court affirm the courts order.

Defendant and appellant Melvin Charles Jackson pled guilty to one count of grand theft (Pen. Code, 487, subd. (a)) in Riverside County Superior Court case No. RIF130553, on July 17, 2006. In exchange, the court imposed but suspended a two-year sentence in state prison and placed defendant on probation for three years, under certain conditions, including participation in a one-year Salvation Army program. On June 3, 2008, defendant admitted that he was in violation of two of his probation conditions (violate no law and report contact with law enforcement to probation officer), due to a criminal conviction in a new case, Riverside County Superior Court case No. RIF139469. The court imposed the previously suspended two-year term in the instant case and a concurrent 365 days in case No. RIF139469. With respect to presentence custody credits, the court referred the matter to the probation department for a report.

Antonio D. appeals from orders of the juvenile court committing him to the Department of Juvenile Justice. He contends the court erred in failing to offer him a Marsden hearing; the record does not demonstrate he was competent to admit the allegations of the present petition; the juvenile court failed to exercise its discretion in setting the maximum term of confinement; there was insufficient evidence appellant would benefit from the commitment; and the commitment in this case constitutes cruel and unusual punishment. Court affirm.

Appellant previously sued Respondent, its insurer, to determine coverage obligations for underlying commercial litigation in which appellant was a party. The coverage litigation was resolved by settlement agreement. In this case the insurer has sued, alleging breach of that settlement agreement by appellant, and including a claim for fraud in connection with the breach. The insured brought a special motion to strike the fraud claim as a SLAPP action pursuant to Code of Civil Procedure section 425.16. The trial court denied the motion.Court affirm concluding, as did the trial court, that the fraudulent conduct alleged does not qualify as protected activity within the meaning of the anti-SLAPP statute.