CA Unpub Decisions

Cross-complainants[1] (the Patels) appeal from the courts order granting the motion of respondents Jakela, Inc., and Daniel O. Davis, Inc., (individually Jakela, Inc., and Davis, Inc.; collectively, Jakela) for attorney fees. They contend that the court erred in granting attorney fees under title 42 United States Code section 1988(b) because they were not afforded the 21‑day safe harbor period of Code of Civil Procedure section 128.7, subdivision (c)(1) in which to withdraw their cross-complaint. We affirm and remand the matter to the trial court for a determination of the amount of attorney fees and costs to be awarded on appeal.

Defendant Holly Ellis was convicted of two counts of child abuse after her four-month-old child was found to have second degree burns and brain injuries consistent with severe shaking. At the time she brought the baby to the hospital for treatment of seizures, defendant admitted having caused the burns. At trial, however, the babys father and grandfather testified the father had caused the burns and denied any knowledge of the babys brain injury. Defendant contends the prosecutor violated her right not to testify during his closing argument by drawing attention to defendants failure to testify. She also contends that since the father and grandfather could have been found to be accomplices, the trial court erred by failing to instruct on accomplice testimony. Court affirm.

Lila and Gail Bennett in propria persona (petitioners) appeal from the order denying their petition for writ of administrative mandamus. The petition sought to overturn an order issued by the Lake County Board of Supervisors (County) requiring petitioners to abate public nuisances on their property. Petitioners arguments primarily challenge the Countys power to issue the abatement order. The County had the power to issue the order, and petitioners identify no ground that would justify overruling it. Accordingly, Court affirm the judgment.

Defendant Frankie Alberto Arellano appeals after being convicted of second degree robbery (Pen. Code,[1] 212.5, subd. (c)) and misdemeanor battery ( 242). His counsel has filed an opening brief raising no issues and asking this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has been apprised of his right to file a supplemental brief, but he has not done so.

Defendant Steven Lynn McHugh was adjudged a mentally disordered offender and civilly committed to a psychiatric hospital for one year. (Pen. Code, 2972, subd. (c).) Defendant, with the assistance of appointed counsel, appeals and contends that the trial court erred in admitting and considering the contents of hospital records when determining defendants mental health status. Court reject the contention and affirm the judgment.

A jury convicted Aldo Alejandro Gonzalez of one count of first degree murder (Pen. Code,[1] 187, subd. (a), 189). The jury also found true the allegations Gonzalez (1) personally used a firearm ( 12022.5, subd. (a)); and (2) intentionally and personally discharged a firearm, causing death ( 12022.53, subd. (d)). The court sentenced Gonzalez to a state prison term of 50 years to life, consisting of 25 years for the murder and an additional 25 years for discharging a firearm. The court stayed the sentence on the personal use allegation.

Plaintiffs Juan Graciano (Graciano) and his wife Olga Graciano (Olga) appeal a judgment entered in favor of defendant K.A.M.C.O. Enterprises, Inc. (KAMCO) after a court trial. Plaintiffs sued KAMCO for personal injuries Graciano sustained when he fell off a second-story walkway in a new home being constructed by KAMCO.[1] The injury occurred while Graciano was performing painting work for his employer, Houston Ridge Painting (Houston), the contractor KAMCO hired to paint the interior of the house. Relying on Hooker v. Department of Transportation (2002) 27 Cal.4th 198 (Hooker), the court ruled that KAMCO was not liable for plaintiffs' injuries because although KAMCO retained minimal control over safety conditions on the premises, it did not retain control over safety conditions that affirmatively contributed to Graciano's injury. Plaintiffs contend (1) the evidence was insufficient to support the court's finding that KAMCO did not retain control over safety conditions that affirmatively contributed to Graciano's injury; and (2) because certain regulations in the California Code of Regulations impose a nondelegable duty on KAMCO, the court committed reversible error by not applying a negligence per se presumption under Evidence Code section 669. Court affirm.

jury convicted James Lamar Jackson of second degree murder. (Pen. Code,[1] 187, subd. (a).) The jury also found true an allegation that Jackson used and discharged a firearm. ( 12022.5, subd. (a), 12022.53, subd. (d).) The trial court modified the verdict to reduce the conviction to voluntary manslaughter pursuant to People v. Dillon (1983) 34 Cal.3d 441. Jackson was sentenced to a determinate term of 21 years, consisting of the upper term of 11 years for voluntary manslaughter, plus the upper tem of 10 years for the firearm enhancement.

Aquadek, Inc. (Aquadek) appeals from a judgment entered against it following a bench trial on Ben Gravelle's suit for breach of contract. As we will explain, we conclude that the notice of appeal was untimely, and accordingly Court dismiss the appeal.

Moe Siry retained his friend Larry Rubin to perform work on Siry's home remodel project. After six months, Siry terminated Rubin's services. Siry then sued Rubin, asserting contract and tort claims, and statutory claims under the Contractors' State License Law (Bus. & Prof. Code, 7000, et seq.). The trial court, sitting without a jury, found Siry did not prove his claims, and entered judgment in Rubin's favor. On appeal, Siry contends the court's findings are unsupported by the evidence. Court reject this contention, and affirm.

Merle Ladner Adams and 31 other individuals who invested in a ponzi scheme (hereafter sometimes Investors) brought this action against I. David Small, an attorney who represented the perpetrators of the ponzi scheme, for (1) fraud and deceit by active concealment; (2) aiding and abetting fraud and deceit; (3) violating state securities laws; (4) violating the state unfair business practices statute; and (5) common law conspiracy. The lawsuit also contained a cause of action for legal malpractice brought on behalf of five Investors (collectively Estate Investors), who hired Small for estate planning purposes.[1] Estate Investors claimed Small breached (1) his duty to inform his clients of negative information about their investments and (2) his duty to disclose the conflict of interest between his representation of the perpetrators of the ponzi scheme and his representation of them.

This appeal concerns a purchase agreement with respect to one of three large parcels of land in Imperial County which appellant acquired in 2006 in a series of related transactions. According to appellant, respondent seller allegedly agreed to pursue its efforts to obtain development rights for the parcels, including the parcel which is the subject of this appeal. Under the terms of the purchase agreement, respondent seller received a note and deed of trust, which following close of escrow on the transaction respondent seller assigned to the other respondent. Appellant was not satisfied with the progress being made in acquiring development rights on the parcel and, among other matters, stopped making payments on the note it had given respondent seller. Respondent assignee then initiated a receivership proceeding in which it eventually was able to foreclose on the deed of trust.

On appeal, Jose contends that the trial court abused its discretion in denying his request for a continuance of the hearing on the custody issue and Ana's move-away request. Jose had requested a continuance because the expert whom the court appointed under Evidence Code section 730 to offer recommendations to the court regarding custody, would be unavailable to testify at the hearing. Prior to receiving a summons to appear, the expert had made vacation plans and would be out of the country at the time of the hearing. According to Jose, he was denied a meaningful hearing because rather than having the expert testify in court, the court allowed in evidence the expert's report and the transcript of her deposition testimony. Jose maintains that as a result of proceeding in this manner, the court was unable to judge the expert's credibility.

Brad W. and Melanie W. (together the parents) appeal jurisdictional and dispositional orders regarding their children, Leila W. and Kai W. The parents contend substantial evidence does not support the jurisdictional and dispositional findings and orders. Melanie also asserts the court reversibly erred by holding the jurisdictional and dispositional hearings prematurely under Indian Child Welfare Act (ICWA) requirements, and the Agency did not provide proper ICWA notice. Court affirm the jurisdictional and dispositional orders, but remand the case for the limited purpose of ensuring compliance with ICWA requirements.