CA Unpub Decisions

This is an action brought by real parties in interest Helen P. Washington (Helen) and others for the wrongful death of John H. Washington, Jr., (John)[1] due to his exposure to asbestos (wrongful death action). At issue is the trial courts denial of a motion by petitioner Union Carbide Corporation (Union Carbide) to preclude the use of Johns deposition from a personal injury action he filed in Texas (Texas action) to prove liability in the wrongful death action. According to Union Carbide: (1) Johns deposition is inadmissible under Code of Civil Procedure section 2025.620, subdivision (g)[2] and Evidence Code section 1291, subdivision (a)(2) because Union Carbide did not have the motive and opportunity to elicit sufficient deposition testimony from John to support a summary judgment motion in the wrongful death action; (2) permitting the use of Johns deposition will violate due process; and (3) even if Johns deposition is admissible, it should have been excluded pursuant to Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272 (Peat) after his law firm, Waters & Kraus, LLP (Waters & Kraus), engaged in an abusive litigation practice by filing the Texas action because (a) Texas limits depositions to six hours per side, (b) Texas has a less onerous burden of proof for summary judgment, (c) Union Carbide had no motive or opportunity to obtain adequate discovery to support summary judgment in a similar California action, and (d) Waters & Kraus intended to dismiss the Texas action, file a new personal injury action on Johns behalf in California and object to any attempt to redepose John on the grounds that he was too ill. Court conclude that Johns deposition is admissible, and his deposition should not be precluded. The petition is denied.

A jury convicted defendant Ben Garcia of four felony convictions: two counts of assault with force likely to produce great bodily harm (Pen. Code, 245, subd. (a)(1)),[1] one count of driving under the influence of alcohol and causing injury (Veh. Code, 23153, subd. (a)) and one count of driving with a blood-alcohol level of greater than 0.08 percent and causing injury (Veh. Code, 23153, subd. (b), collectively referred to as DUI with injury). On appeal he contends the trial court prejudicially erred in finding one of the victims of the assault unavailable as a witness and thereby allowing the introduction of the witnesss preliminary hearing testimony. We disagree. He also contends both Vehicle Code sections must be stayed under section 654. He goes on to argue that one of them must be stayed for all purposes. We agree as to the first contention, but not the second. In bifurcated proceedings, two prior conviction enhancements were also found true. Defendant appeals those true findings as well, contending he gave no waivers whatsoever of his trial rights. On this point, we agree with defendant. Court shall reverse and remand on these enhancement allegations.

A jury found defendant Charles Peterson guilty of two counts of engaging in oral copulation with a minor; soliciting a minor to use a controlled substance; two counts of providing lewd material to a minor; inducing false testimony; four counts of contributing to the delinquency of a minor; possessing methamphetamine; possessing clonazepam; possessing an unlawful smoking device, and possessing marijuana. Defendant was sentenced to an aggregate term of ten years in state prison.
On appeal, defendant contends that statements he made to a psychotherapist as a condition of probation were involuntary and, thus, the trial court erred in ruling the statements could be used to impeach defendant if he testified at trial after his plea was set aside. He also claims, among other things, that there was insufficient evidence to support his conviction for possessing clonazepam.

Antony P. Dethloff, doing business as Metco Engineering & Construction, challenges the trial courts granting of summary judgment to Krump Construction, Inc. (Krump) based on its finding that Dethloff failed to comply with the licensing requirements of the Contractors State License Law (the CSLL) (Bus. & Prof. Code, 7000 et seq.).[1] The valid contractors license at issue was in the name of Metco Engineering, a sole proprietorship of Antony P. Dethloff, but Dethloff signed the contract with Krump on behalf of Metco Engineering & Construction.
Court agree that the trial court erred in granting summary judgment and shall reverse.

Charged with 44 counts of offenses against his daughter over an eight-year period, defendant Justin Michael Langston entered into a negotiated settlement whereby he pled no contest to five counts of forcible lewd acts with a child under 14 years of age, two counts of nonforcible lewd acts with a child under 14 years of age, and one count of furnishing marijuana to a minor, in exchange for a stipulated sentence of 35 years 8 months and the dismissal of the remaining charges. Per the agreement, defendant was sentenced to state prison for 35 years 8 months. The court also imposed two restitution fines of $7,000 in accordance with Penal Code sections 1202.4 and 1202.45, and reserved victim restitution for a later determination.

Minor A.R. admitted that he came within the provisions of Welfare and Institutions Code section 602 in that he committed voluntary manslaughter.[1] (Pen. Code, 192, subd. (a).) In exchange, an allegation of second degree murder was dismissed. (Pen. Code, 187, subd. (a), 190, subd. (a).) The Colusa County Juvenile Court determined that the minor resided in Sutter County and transferred the case there for disposition. The Sutter County court adjudged the minor its ward and committed him to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF), for a maximum confinement time of 11 years less credit for time served.[2] The court found that the offense was gang related. On appeal, the minor contends there was insufficient evidence that (1) his welfare required that he be removed from his parents, and (2) the offense was gang related. Court modify the judgment by striking the finding the offense was gang related and otherwise affirm the judgment.

Defendant Ernest Eugene Roxas committed various crimes in Yuba, Sutter, San Joaquin, and Butte Counties and was placed on probation in all four counties. He violated the terms of his probation in Yuba County, probation was revoked, and he was sentenced to state prison. In Butte County, he applied for a continuation of probation. The trial court ruled on his application for a continuation of probation and resentenced him on two matters arising in other counties. He appeals the eight-month consecutive sentence he received for his Butte County offense because he was not provided a formal probation revocation hearing. We conclude defendant waived his right to a formal revocation hearing by initiating these proceedings and failing to raise any objections at the hearing on his application to continue probation. Court affirm.

The Attorney General concedes the trial court erred by failing to order and consider a supplemental probation report before sending defendant Stephen Joseph Aguirre to state prison for a three-year term. (Pen. Code, 1203, subds. (b)(1) & (4); Cal. Rules of Court, rule 4.411(c).) The sole issue on appeal is whether the error was harmless. (People v. Dobbins (2005) 127 Cal.App.4th 176, 182 (Dobbins).)

In September 2008, defendant Orvell Jones stole meat and liquor from a grocery store. Because he had a prior conviction for petty theft, he was charged with felony petty theft. (Pen. Code, 666.) It was further alleged he had a prior conviction for robbery, a serious felony (Pen. Code, 211, 667, subd. (d), 1170.12, subd. (b)), and had served a term in state prison (Pen. Code, 667.5, subd. (b)). In November 2008, based on reports of mental health examiners, defendant was found mentally incompetent. Criminal proceedings were suspended, and he was committed to Napa State Hospital. By March 2009, defendant was found competent to stand trial. He then pled no contest to felony petty theft. In accordance with the plea agreement, he was sentenced to the low term of 16 months in state prison, with a $200 restitution fund fine, a $20 security fee, and a $30 administrative fee imposed. The remaining enhancement allegations were dismissed. Defendants request for a certificate of probable cause was denied.
Defendant appealed, and we appointed counsel to represent him on appeal. Counsel filed an opening brief that sets forth the facts of the case and asks us 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 the opening brief was filed. More than 30 days elapsed, and Court have received no communication from defendant.

In March 2008 a jury found Gerald Michael Nash guilty of one count of willful, deliberate and premeditated murder (Pen. Code,[1] 187, subd. (a), 189). The jury also found true the allegation that Nash personally and intentionally discharged a firearm, resulting in great bodily injury and death ( 12022.53, subd. (d)). The court sentenced Nash to a prison term of 50 years to life, consisting of a 25-year-to-life term for the murder conviction and a consecutive 25-year-to-life term for the firearm enhancement. On appeal Nash asserts (1) the court erred by admitting notes he wrote about kidnapping, torturing and killing victims ( the torture notes) and evidence suggesting he was seeking to change his identity (identity theft evidence); and (2) there is no substantial evidence that the killing was committed with premeditation, deliberation or planning. Court affirm.

In February 2004, in connection with the dissolution of their marriage, Teodula Lira and Joaquin Lira entered into a stipulated judgment in part dividing several parcels of real property. That judgment was incorporated into their final judgment of dissolution. Over four years later, Teodula obtained postjudgment orders (1) finding one of the parcels of property (the subject property) to be an "omitted asset" and ordering Joaquin to pay her one-half the property's value and (2) awarding her and their son, Jerry Lira, attorney fees. Joaquin appeals, contending (1) there was no partially omitted asset within the meaning of Family Code[1] section 2556; (2) Teodula did not meet her burden of proving undue influence for purposes of applying section 2122; (3) the statute of limitations had run on the time for Teodula to file a motion for relief from a judgment; and (4) the family court exceeded its jurisdiction and abused its discretion in ordering Joaquin to pay attorney fees to Teodula and Jerry's attorneys. Teodula raises a host of procedural objections to Joaquin's ability to now challenge these matters on appeal.
Court reject Teodula's procedural objections, and conclude the family court erred as a matter of law in ruling the subject property an omitted asset. Accordingly, we reverse that portion of the postjudgment order as well as the postjudgment order awarding Teodula and Jerry attorney fees. Court remand the matter for redetermination of Jerry's request for attorney fees against Teodula in connection with his partition cross-complaint.

Jennifer N. appeals the judgment terminating her parental rights to her son Joseph H. She contends the juvenile court erred by declining to apply the beneficial relationship exception (Welf. & Inst. Code, 366.26, subd. (c)(1)(B)(i)), her rights would not have been terminated but for violations of the court's orders by the San Diego County Health and Human Services Agency (the Agency), and the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) were not satisfied. We agree only with the ICWA contention.

The Riverside County District Attorney, representing the People of the State of California, appeals after defendant and respondent John Terry Moore entered into a plea agreement in the Superior Court and was granted probation. The People raise issues purporting to challenge the lawfulness of the sentence and the disposition (dismissal) of one count, but defendant argues that the essential effect of each point is to render him ineligible for probation. The People are prohibited under Penal Code section 1238 subdivision (d), from appealing an order granting probation. Because some of the issues raised amount to an attempt to appeal the probation order, the appeal as to those issues is prohibited and must be dismissed. However, as to the dismissal of one misdemeanor count, the People are correct that the trial court erred in failing to state its reasons for dismissal in the record. Accordingly, the judgment must be reversed, with directions.

A modification decision.