CA Unpub Decisions

In this breach of contract lawsuit, a first amended complaint brought by plaintiffs and appellants Campion Murphy and Faith Ford Murphy against defendants and respondents Lexington Financial Management, LLC, Gettleson, Witzer & Co., Harvey Gettleson, and Larry Witzer was dismissed following the sustaining of respondents demurrer without leave to amend.[1] Appellants appeal the judgment, arguing that the trial court erred when it found their claim was time-barred.
Court conclude that because appellants had notice of respondents alleged breach of contract more than two years before their complaint was filed, their claim was barred by the statute of limitations. (Code Civ. Proc., 339.) The trial court properly sustained respondents demurrer; the judgment is affirmed.

Rosa O. (Mother) appeals from the juvenile courts order made in a Welfare and Institutions Code section 366.26[1]hearing establishing a plan of adoption for her daughter, Viviana O., and her son, Hugo O. Mother contends on appeal that the juvenile court erred in terminating her parental rights because the court had failed to enforce its visitation order, and impermissibly delegated to the children the decision whether visitation would occur. She asserts that as a result she did not have the opportunity to maintain or establish a beneficial parental relationship, which could have been a basis upon which she could oppose the termination of her parental rights. Court disagree and affirm the challenged order.

At the six-month review hearing in this juvenile dependency case, the court modified the reunification plan of appellant S.L. (father) by ordering him to participate in a domestic violence counseling program, and denied his request for a continuance of the hearing to contest the additional required program. On appeal, father contends that the denial of his request constituted an abuse of the juvenile courts discretion and impaired his right to effective assistance of counsel. Court disagree and affirm.

A jury convicted defendant Danny Lashawn Hampton of first degree murder (count one; Pen. Code, 187) and robbery (counts two & three; 211). The jury also found true that the murder was committed in the commission of robbery, that the robberies were committed in concert in an inhabited dwelling house, and that a principal was armed with a firearm as to all counts. Defendant was sentenced to a state prison term of 33 years to life.
Defendant contends: (1) the trial court committed reversible Batson/Wheeler[4] error; (2) the finding that defendant committed the robbery in count three in concert with others should be reversed for insufficient evidence that defendant perpetrated or aided and abetted the robbery; (3) the $20 crime prevention fee imposed by the trial court should be reduced to $10; and (4) clerical errors in the abstract of judgment should be corrected. Court shall remand for further proceedings as to defendants last two contentions. In all other respects, Court shall affirm.

This case involves consolidated appeals filed by Jayraj Nair (father) from four orders in which the family law court, inter alia, limited him to supervised visitation with his youngest son, substituted therapists for both sons, and awarded to respondent Bindu Nair (mother) attorney fees pursuant to Family Code section 271. Father contends the trial court erred by (1) ordering supervised visitation, (2) modifying a final custody order absent a showing of changed circumstances, (3) prohibiting his sons from having contact with each other, (4) ordering him to pay to mother $75,000 as a sanction for increasing the cost of litigation, and (5) making various provisions for therapy in the ruling after the custody trial.
Mother argues that fathers appeal from the three orders concerning visitation and therapy must be dismissed because they are nonappealable interim custody orders.
Court shall conclude that father has properly appealed from the four orders. However, we reject his arguments and shall affirm the trial courts orders.

Under a plea agreement, defendant Jonas Hamby Muse received a stipulated five-year state prison term, which included the three-year upper term for receiving stolen property (Pen. Code, 496, subd. (a))[1] and two years consecutive for prior prison terms ( 667.5, subd. (b)). Defendant did not obtain a certificate of probable cause. ( 1237.5.) Defendant contends one prior prison term enhancement must be stricken as a matter of law because he served only one prison term for both convictions. This claim attacks the trial courts authority to impose the agreed-upon sentence. Since such claims cannot be raised on appeal without a certificate of probable cause, we shall dismiss the appeal. (People v. Cuevas (2008) 44 Cal.4th 374, 376-377 (Cuevas); People v.Shelton (2006) 37 Cal.4th 759, 763, 769 (Shelton).)

Following a contested jurisdictional hearing, the Sacramento County Juvenile Court found that 13-year-old Blake B. (the minor) came within the provisions of Welfare and Institutions Code section 602 in that he drove a motor vehicle on a highway without a valid drivers license. (Veh. Code, 12500, subd. (a).) An allegation that he violated the basic speed law (Veh. Code, 22350) was dismissed in the interest of justice. The minor was adjudged a ward of the court and was committed to the care and custody of his father under supervision of the probation officer. The dispositional minute order states: The minor was advised and understood the maximum term of confinement, to wit: [six] months. On appeal, the minor contends the juvenile court erred by declaring a maximum term of physical confinement, and the stated term should be stricken. Court shall affirm the judgment.

Anthony Taylor pleaded guilty to attempted murder and several enhancements, including two strike prior convictions. At sentencing, the trial court dismissed one strike prior and imposed a 24-year sentence. In his appeal and habeas petition, Taylor asserts the trial court breached the plea agreement because the court had promised him a 20-year sentence. The contention fails because the record shows there was no promise of a 20-year sentence. Alternatively, Taylor argues he should be permitted to withdraw his plea because his counsel told him the court had promised a 20-year sentence. We conclude this claim has been forfeited, and also fails on the merits because there is no showing of prejudice. Court affirm the judgment and deny the habeas petition.

Defendant Kamal Ali Saadoon pled no contest to possessing methamphetamine (Health & Saf. Code, 11377, subd. (a) count 1), possessing a drug-smoking device (Health & Saf. Code,
11364, subd. (a) count 2), and possessing 28.5 grams of marijuana, a misdemeanor (Health & Saf. Code, 11357, subd. (b).)
Among the fines and fees imposed by the trial court at sentencing, defendant was ordered to pay a $50 criminal laboratory analysis fee (Health & Saf. Code, 11372.5, subd. (a)) on each count to which it added the following penalty assessments: a $10 court surcharge (Pen Code, 1465.7); $25 court facilities construction fee (Gov. Code, 70372); $50 state penalty assessment (Pen. Code, 1464); $35 county penalty assessment (Gov. Code, 76000); $5 DNA identification fund fee (Gov. Code, 76104.6), and a $5 state-only DNA identification fund fee (Gov. Code, 76104.7). These penalty assessments add up to $180 for each of the three counts, and a total of $540. The court also imposed a $100 fine for count 3 (Health & Saf. Code, 11357, subd. (b).)

The juvenile court declared 16-year-old Melinda V. a ward of the court (Welf. & Inst. Code, 602) after sustaining allegations that she committed battery involving serious bodily injury (Pen. Code, 243, subd. (d)) (all subsequent statutory references are to the Penal Code) and assault ( 240). The court informed Melinda the maximum confinement time was four years. The court placed Melinda on probation under various terms, including completion of 40 hours of community service and a no-contact order with the victim, a corroborating witness and their families. Melinda appeals, contending insufficient evidence supported the battery involving serious bodily injury true finding. She also contends the assault true finding must be reversed because it is a lesser included offense of the felony battery charge, and the no contact order is overbroad and vague.

Plaintiff Vision Manufacturing, Inc. (VMI) and its president, plaintiff Steven Truong, filed a legal malpractice action against attorney Bruce Glasser arising out of his purported negligent advice in a real estate transaction. Glasser moved for, and the court granted, summary judgment in favor of Glasser on the ground the action was barred by the Code of Civil Procedure section 340.6 one-year statute of limitations. VMI and Truong (together Plaintiffs) timely appealed.

The trial court awarded attorney fees to parties who successfully petitioned to compel arbitration of a dispute. Court reverse the trial court's order, concluding the award is premature because the agreement does not provide for an interim attorney fee award and "the party prevailing on the contract" under Civil Code section 1717 cannot yet be determined.

Leanna K. seeks writ review of orders terminating her reunification services regarding her child, George A., and referring the matter to a Welfare and Institutions Code section 366.26 hearing.[1] She contends the finding that returning George to her care would create a substantial risk of detriment was not supported by substantial evidence and was based only on speculation. She notes she was safely parenting her younger child. Court deny the petition.

Plaintiff Lawrence R. LePiere (LePiere) sued defendant Coronado Gardens Homeowners Association to compel it to approve his application to install a mobile home on a vacant lot in a mobile home park. A jury found the Association did not fail to do something that the governing documents [the CC&Rs] required of [it.] Court reject LaPieres arguments that substantial evidence does not support the judgment and the jury committed prejudicial misconduct. Court affirm the judgment.