CA Unpub Decisions

N.A. appeals from an order setting aside an earlier order that imposed a monetary discovery sanction against respondent. Appellant contends that the juvenile court had no jurisdiction to set aside its order after the time for appeal had expired. Court affirm.

Defendant was convicted by jury of forcible oral copulation (Pen. Code, 288a, subd. (c)(2))[1] and felony false imprisonment ( 236, 237, subd. (a)). The court found true allegations that defendant had a prior serious felony conviction ( 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and had served two prison terms. ( 667.5, subd. (b).) Sentenced to 24 years in prison (the upper terms of eight and three years doubled, plus two years for prior prison terms), defendant appeals. He contends there is insufficient evidence of menace to support felony false imprisonment. Court find sufficient evidence and affirm.

Appellant, D.M., father of minors E., Jv., and Jc., appeals from the juvenile courts dispositional order declaring the minors dependents of the court and removing them from his custody. (Welf. & Inst. Code, 360, 395.) He contends there was insufficient evidence to support the juvenile courts finding of jurisdiction. Court affirm.

This appeal involves a simple settlement agreement intended to end a lawsuit filed by plaintiff Allan Askew against defendants California Live Floors, Inc., Dean Berkenbile, Dwana Berkenbile, and the Berkenbile Revocable Trust (collectively CLF) in order to foreclose on a mechanics lien. Askew constructed a building for CLF. The 2001 settlement agreement called for Askew to repair three deficiencies in CLFs building foundation in exchange for final payment of $10,881. The parties expected the terms of the agreement to be quickly fulfilled. However, as an ancient Roman writer observed, There are some remedies worse than the disease. (Publilius Syrus, Maxim 301, quoted in Bartletts Familiar Quotations (15th ed. 1980) p. 111.)
Over the next seven years, disputes over the terms of the settlement agreement festered and resulted in exchanges of sharp letters between the parties attorneys. CLF did not deposit the funds until Askew moved for judgment to enforce the settlement agreement pursuant to Code of Civil Procedure section 664.6.[1] Even though Askews motion for judgment was granted in 2004, he still has not performed any of the work required by the agreement.
Both parties appeal from the trial courts partial grant of CLFs motion to enforce the settlement agreement. On appeal, Askew contends (1) the trial court exceeded its jurisdiction to enforce the settlement agreement under section 664.6 by finding that he refused to perform his obligations, and (2) even if section 664.6 allowed the court to make factual findings regarding noncompliance with the settlement agreement, substantial evidence did not support the trial courts finding. CLF contends that Askews appeal must be dismissed for lack of an appealable order or judgment.

While in pursuit of a night of chicken fighting, Wang Lee was shot and killed. Defendant Yee Xiong was convicted of Lees murder. He was also found to have personally discharged a firearm to cause Lees death and committed the murder for the benefit of a street gang. Defendant appeals his conviction and the findings contending the court prejudicially erred in granting a prosecution challenge for cause to a prospective juror, that there is insufficient evidence he personally discharged the firearm, that Detective Bailey was not properly qualified as a gang expert, and based on his life sentence without possibility of parole, his parole revocation fine must be stricken. On this last point, Court agree. In all other respects, Court shall affirm the judgment.

Appellant, J.C., Sr., father of the minor J.C., appeals from a juvenile court order of legal guardianship. (Welf. & Inst. Code, 366.26, 395.) He contends the court abused its discretion by delegating full discretion to the guardians regarding the conditions of visitation. shall affirm.

Defendant David Stanley Allred aided and abetted his brother in entering the home of their father and robbing him of his .380-caliber handgun. Defendants brother used a rifle during the robbery, and defendant stood behind his brother. On October 10, 2006, defendant pled no contest to robbery (Pen. Code, 211; further statutory references are to this code) and admitted he had a prior strike conviction for attempted burglary ( 667, subds. (b)-(i), 1170.12). That same day, the trial court sentenced defendant to the middle term of two years, doubled to four years for the prior strike, in state prison. The trial court imposed an $800 restitution fine pursuant to section 1202.4, subdivision (b), and an additional $800 restitution fine pursuant to section 1202.45, stayed pending successful completion of parole. Defendant was remanded forthwith.

Defendant Dana Ray Johnson pleaded no contest to sale of marijuana (Health & Saf. Code, 11360, subd. (a)) in exchange for an agreement that he would be placed on probation and receive 90 days in jail and a recommendation that the jail sentence could be served on county work project. Following his plea, defendant brought a Marsden[1] motion, seeking to have his appointed attorney relieved and to substitute alternate counsel. Defendants motion was denied. The trial court sentenced defendant in accordance with the plea agreement. According to the probation report and the factual basis stated by defendant at the time of his plea, the charge stemmed from an incident in which an undercover police officer asked defendant if he had any marijuana, and defendant replied he did not but his boy ha[d] some. Defendant left, returning shortly thereafter with the codefendant, who sold the officer three-quarters of a gram of marijuana. Defendant appealed, and his request for a certificate of probable cause was granted.

This action arises out of a loan in the amount of $25,000 given by the plaintiff, Miguel Chee-Wong, to the defendant, Aina A. Chen. When the loan was not paid, Chee-Wong filed an action for breach of contract against Chen, and Chen filed a cross-complaint for emotional distress. Chee-Wong brought a motion for summary judgment on the complaint and cross-complaint, which the court granted.
Chen appeals in propria persona, asserting the court erred in granting summary judgment because (1) the court failed to consider evidence there was a separate oral agreement that raised a triable issue of fact on the complaint; (2) the court should have granted her request to compel discovery; (3) the court should have granted her request for a continuance; and (3) there are triable issues of fact on her cross-complaint. Chee-Wong has brought a motion requesting that, because the appeal lacks merit and is frivolous, we either issue a summary affirmance or dismiss the appeal. Court ordered the motion be heard concurrently with the appeal. Court affirm the judgment and decline to either issue a summary affirmance or dismiss the appeal.

Rowena Schooler (Rowena) died in October 2004, and left six adult children. Her daughter Jane Schooler (Jane) was the executor of her estate and trustee of her trust. Four years after Rowena's death, three of Jane's brothers (Brothers) petitioned the probate court under the safe harbor statute for a determination whether their proposed objections to Jane's final estate account constituted a contest under the no contest clauses in Rowena's will and trust. (Prob. Code,[1] 21320.) The Brothers challenged Jane's estate accounting and sought to surcharge Jane for breaching her fiduciary duties by failing to properly handle an estate asset and using estate assets for her own benefit.
The court granted the petition in part and denied it in part. The court ruled the Brothers could seek to remove Jane as executor and challenge the contents of her final account without violating the no contest clauses. But the court found that certain actions would violate the no contest clauses, including the Brothers' attempt to surcharge Jane (impose personal liability) for claimed breaches of fiduciary duty and the Brothers' claim for attorney fees and costs. The Brothers appeal.

This action was initiated by Jacqueline B. Reedy (Reedy), in her capacity as the trustee of the Helen Chamness Bussell Family Trust (the trust) and in her individual capacity as a beneficiary of the trust, against, among others, Todd Bussell, a beneficiary of the trust. The action sought to quiet title to a 131-acre ranch (the ranch) owned by the trust and to partition the ranch by sale. The court entered an interlocutory judgment quieting title in the trust and ordering a partition by sale.
Todd appeals the interlocutory judgment, asserting (1) the judgment violates the spendthrift provision of the trust and Probate Code[2] sections 15300 and 15301; (2) the court erred by including an award of attorney fees and costs in the judgment; and (3) the court erred in awarding Reedy the costs of maintaining, preserving and marketing the property. Court affirm.

Gloria Olson was sentenced in 1979 to concurrent 25-year-to-life sentences after a jury found her guilty of two counts of first degree murder. Olson, now 64 years old, has been imprisoned for 30 years. After several unsuccessful parole hearings, the Board of Parole Hearings (BPH) found her suitable for parole at her 2008 suitability hearing because it concluded Olson did not pose an unreasonable risk of danger to society if released. However, Governor Arnold Schwarzenegger (the Governor) reversed the BPH's decision, finding Olson posed an unreasonable risk of danger to society if released. Olson successfully petitioned the trial court for writ of habeas corpus. The warden of California Institute for Women (the People) appeals the trial court's grant of Olson's petition for a writ of habeas corpus, arguing the Governor's decision was supported by some evidence and therefore must upheld. We conclude, following the guidance provided by In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), the Governor's decision was not supported by some evidence, and Court therefore affirm the trial court's judgment.

In May 2009 the juvenile court entered a jurisdictional finding (Welf. & Inst. Code, 300, subd. (e));[1] removed seven-month-old Owen C. from the custody of his father, James C.; and placed Owen with his mother, Megan C. The court found the San Diego County Health and Human Services Agency (the Agency) had satisfied its obligation to "investigate the circumstances leading to [Owen's removal] and advise the court whether . . . reunification [was] likely to be successful" ( 361.5, subd. (c)). The court ordered family maintenance services ( 362, subd. (b), 364, subds. (b), (c)) for Megan and denied reunification services for James ( 361.5, subd. (b)(5), (b)(6)). James and Owen appeal. James contends the jurisdictional finding is not supported by substantial evidence, the Agency failed to meet its investigatory obligation and the court abused its discretion by denying him reunification services. Owen contends reunification services were not at issue because he was not removed from both parents' custody and that it was in Owen's best interests for James to receive family maintenance services. Court reverse the order denying James reunification services and remand so that the juvenile court may exercise its discretion to determine whether it is in Owen's best interests for James to receive family maintenance services. In all other respects Court affirm the judgment.

Plaintiff Robert Hoyt appeals from the order dismissing his personal injury suit against defendants Colonial Acres Mobile Home Park and Burton Busk after defendants motion for a nonsuit was granted. Plaintiff alleged that defendants were liable for injuries he suffered as a result of a fire at a mobile home park. The nonsuit was granted on the ground that plaintiff could not prove the cause of the fire without expert testimony, and he was barred from introducing such testimony because of his failure to disclose experts. Plaintiff contends on appeal that the court erred in excluding evidence that would have shown without expert testimony how the fire was caused, and in denying his motions to continue the date of trial. Court conclude that these arguments lack merit and affirm the judgment.