CA Unpub Decisions

This is a dispute over purported ownership of a new Oakland nightclub. Plaintiff Derrick Chapman sued defendant Naef Dagmar Saraatje, individually and doing business as At Seventeen. His first amended complaint alleged that defendant granted him half ownership of the club in exchange for his capital investment, but then excluded him from ownership and management of the club and reneged on an agreement to return his investment. Plaintiff sought an accounting, as well as damages for breach of contract, breach of the covenant of good faith and fair dealing, promissory fraud and estoppel, and money had and received.

This is a child custody dispute. Hephzibah Grimes (Wife) appeals from a change-of-custody order awarding John A. Guinn (Husband) sole physical custody of the parties son, Jarrod. Wife contends the trial court applied the wrong standard for determining the change of custody, and that the custody change is an abuse of discretion. Court disagree and affirm.

C.G. appeals from orders of the juvenile court committing him to the Department of Juvenile Justice. He contends the commitment was an abuse of discretion because there was no evidence of probable benefit to him. Court affirm.

Gregory Garrett appeals from convictions of robbery, attempted robbery and burglary arising out of incidents at a Subway Sandwich Store (Subway) and a Trader Vics Restaurant (Trader Vics). He contends two of the convictions, for robbery of Subway and attempted robbery of Trader Vics, must be reversed because a store or restaurant cannot be a victim of a robbery separate from its employees. The Attorney General concedes the point, and Court reverse the two convictions.

Nicolas Honesto Gonzalez (Gonzalez) appeals from his conviction of 16 counts of lewd and lascivious acts with a child under age 14, and four counts of sexual acts with a child under age 10. He waived his right to a jury, and was convicted following a court trial. His counsel has filed an opening brief pursuant to People v. Wende,[1] in which no issues are raised, and asks this court for an independent review of the record. Counsel declares she notified Gonzalez he could file a supplemental brief raising any issues he wished to call to this courts attention. No supplemental brief has been filed. Upon independent review of the record, Court find no arguable issues are presented for review and affirm.

Jennifer T., the mother of Jesse T. (mother), appeals from an order terminating her parental rights following a Welfare and Institutions Code section 366.26 permanency hearing (.26 hearing).[1] Mother contends the order must be reversed because the Mendocino County Department of Social Services (Department) failed to comply with the notice requirements set forth in the Indian Child Welfare Act (ICWA), (25 U.S.C. 1901, et seq.). The Department concedes the content and manner of service of the ICWA notices were deficient and requests a limited reversal as described in In re Francisco W. (2006) 139 Cal.App.4th 695, 704 (Francisco W.). Court appreciate the Departments straightforward admission of error and remand the case to the juvenile court for the limited purpose of ensuring compliance with the ICWA.

Petitioner M.G. is the father of A.G. (born in 1997), N.G. (born in 1999) and C.G. (born in 2004). He seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) challenging the juvenile courts order on a petition for modification (Welf. & Inst. Code, 388) filed by the Humboldt County Department of Health & Human Services (the Department) setting the matter for a section 366.26 hearing. The petition for extraordinary writ is denied.

Defendant Andranik Manukovich Atshemyan appeals from the judgment entered after a jury found him guilty of leaving the scene of an automobile accident (Veh. Code, 20001, subd. (a); count 1) and second degree murder (Pen. Code, 187, subd. (a); count 2) and found true the allegation, as to count 1, that defendant personally inflicted great bodily injury upon two victims (id., 12022.7, subd. (a).) The trial court sentenced defendant to state prison for 15 years to life. This appeal followed.
Defendant contends (1) the court improperly denied his request to order a new panel of prospective jurors due to juror misconduct; (2) there was no evidence to support a finding of guilt on count 1 for leaving the scene of an accident; (3) his conviction for second degree murder should be reversed, in that the prosecution failed to meet its burden of proof on the element of implied malice; and (4) the court erroneously refused to provide jury instructions which would clarify the requirements of gross negligence and implied malice. Concluding there is no merit to defendants contentions, Court affirm.

Appellant Marlin L. Royal appeals from his conviction of aggravated kidnapping. He contends that the trial court erred in instructing the jury with CALJIC No. 9.54, rather than CALCRIM No. 1203. Respondent contends that appellant forfeited this issue by failing to object to CALJIC No. 9.54 or request CALCRIM No. 1203, and by expressly agreeing to all CALJIC instructions to the exclusion of CALCRIM instructions. We agree with respondent that appellants failure to object to CALJIC No. 9.54 and his agreeing to the instructions given resulted in a forfeiture of the issue.
Appellant also contends that Penal Code section 654 prohibited concurrent sentences on count 2 (robbery), and thus the sentence imposed as to count 2 must be stayed.[1] Appellant contends that section 654 also precluded both the enhancement imposed on count 1 (kidnapping for robbery) pursuant to section 12022.53, subdivision (b), and the punishment imposed for count 3 (possession of a firearm 12021, subd. (a)(1).) He argues that either the enhancement in count 1 or the sentence for count 3 must be stayed. Respondent agrees. We reject appellants contention that the enhancement in count 1 or the sentence for count 3 must be stayed. However, we agree that the sentence imposed as to count 2 must be stayed, and we amend the judgment accordingly, and affirm the judgment as amended.

Father and paternal grandparents appeal from an order of the juvenile court granting mothers petition for modification, supported by Department of Children and Family Services (DCFS), which returned the children to her care and removed them from the paternal grandparents custody. Court affirm.

Kenneth James Shaw appeals from an order granting Lea Anne Shaw's motion to set aside a post-judgment enforcement order. The court set aside the order for lack of personal service. (Fam. Code, 215 formerly (Civ. Code, 147 & 4809).)[2] Ken argues that Lea waived the service defect when she and her attorney appeared to contest the matter on the merits. Court disagree and affirm.

Following a court trial, appellant Carlos Santiago Semidey (Semidey) was found guilty of first degree residential burglary (count 2) (Pen. Code, 459),[1]and felony vandalism of a 1997 Honda Civic (count 3) ( 594, subd. (a)).[2] It had been further alleged that Semidey had suffered a prior serious or violent felony conviction under the Three Strikes law ( 667, subds. (b)(i); 1170.12, subds. (a)(d)), that he had suffered a prior serious felony conviction within the meaning of section 667, subdivision (a)(1), and that he had served a prior prison term within the meaning of section 667.5, subdivision (b). Semidey admitted a prior conviction of assault with a deadly weapon, which qualified as a strike under the Three Strikes law, as well as a prior serious felony conviction under section 667, subdivision (a)(1). With respect to the prior prison term allegation, both Semidey and the prosecutor agreed that the enhancement did not apply because he had been out of prison for more than five years before committing the instant offenses.

Michael L. Hipp appeals from the judgment of dismissal following the courts order granting respondent State Farm Mutual Automobile Insurance Companys (State Farm) motion to dismiss the action. Hipp raises a multitude of issues concerning discovery matters, summary adjudication, motions for reconsideration, judgment on the pleadings, and judicial bias. Court affirm.

Appellant Margaret Seltzer, an attorney, filed a cross-complaint against respondent William Gwire, also an attorney, in an interpleader action. Gwire made a successful special motion to strike one of the causes of action in the cross-complaint under the anti-SLAPP statute, Code of Civil Procedure section 425.16. He was thereafter awarded attorney fees and costs, which are available as a matter of right to a prevailing defendant. Seltzer contends the award was improper for various reasons, including that Gwire was not entitled to recover fees for the work of his attorney because she is employed in his law practice. Court affirm.