CA Unpub Decisions

The trial court, sitting without a jury, convicted appellant Timothy James Stanbrough of felony murder in the first degree with the special circumstance of having committed the murder during a burglary. The trial court sentenced him to life in prison without the possibility of parole. Stanbrough contends the conviction must be reversed because he had consent to enter the house where the crime occurred and to take the items he did. If we conclude he did not have consent, then the assaultive crime he committed merges with the murder and cannot provide a basis for the burglary. In the alternative, he claims the death was not intended and, as an aider and abettor, the crime he participated in was not one that was inherently dangerous to human life. Court are not persuaded by his arguments and will affirm the judgment.

Moses Neal, a Captain with the Kern County Fire Department (KCFD or Department), appeals from the denial of his petition for writ of mandate. He contends that there is a lack of substantial evidence to support the superior courts findings that he knew or should have known the correct departmental procedures for responding to two infectious materials exposure and failed to follow them. He also contends that the Kern County Civil Service Commission abused its discretion in reducing his compensation based upon these incidents. For the following reasons, Court affirm.

This appeal arises from a felony conviction following a plea of no contest by defendant Kimberly Monique Duggs[1] to driving under the influence of alcohol with a blood alcohol level of .08 percent or greater. Prior to entry of the plea, defendant made a motion to suppress pursuant to Penal Code section 1538.5,[2] which was denied by the magistrate. Her renewed motion to suppress was denied by the trial court.
Defendant challenges the conviction entered on her no contest plea, contending that it was based upon an illegal traffic stop. She also contends that a probation condition concerning firearms imposed by the court is unconstitutional. For the reasons below, we conclude that the traffic stop was lawful and the court below properly denied defendants suppression motion. We hold further that the probation condition must be modified to proscribe only knowing possession, receipt, or transportation of firearms, ammunition, or other deadly weapons. As modified, Court affirm the judgment of the trial court.

Appellant S.S., father of 12 year old J.S. and eleven year old M.S. appeals from an order denying his motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), and an order granting a petition to terminate fathers visitation with the children. (Welf. & Inst. Code, 388.) The facts underlying this ongoing dependency proceeding are summarized in this courts opinion in H033909. In March 2009, father moved to remove trial counsel, contending that counsel was refusing to present evidence of, or challenge unfair treatment and actions by the social worker. Father also complained that counsel failed to request changes to orders or challenge unfair orders. After an in camera hearing where the court heard from both father and fathers counsel, the court denied fathers request pursuant to Marsden, supra 2 Cal.3d 118.

After defendant Charles Edward Jones was apprehended in an illegal drug house in San Jose with crack cocaine on his person, he was charged with possession of cocaine base (Health & Saf. Code, 11350, subd. (a)), and presence in a place where a controlled substance is being used. (Health & Saf. Code, 11365, subd. (a).) The felony complaint further alleged that defendant had a strike prior and a prison prior. (Pen. Code, 1170.12, 667.5, subd. (b).) Defendant appeals from a judgment entered after he pleaded no contest to these charges, and he admitted the strike and prison priors. Prior to sentencing defendant, the trial court heard a Romero[1]motion. Finding that defendants long history of criminality, substance abuse, failed drug rehabilitation and poor performance on probation and parole brought him within the spirit of the Three Strikes law, the trial court denied the motion. Thereafter, the court sentenced defendant to 32 months in prison. The court awarded defendant 727 days of custody credits and imposed a variety of fines. This timely appeal ensued.
On appeal, Court appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. Court notified defendant of his right to submit written argument in his own behalf within 30 days. This time has elapsed and we have received no written argument from defendant. Pursuant to People v. Wende (1979) 25 Cal.3d 436, Court have reviewed the entire record and have concluded that there is no arguable issue on appeal.

The dispute underlying these appeals arose almost 10 years ago. In 1998, the Brandstetter Family Trust, of which Marie Z. Brandstetter (Brandstetter) was then trustee, leased premises in San Mateo County to appellants Frank E. Lembi (Lembi) and John Kockos (Kockos). In 1999, Brandstetter sued appellants for breach of the lease, initiating the first of three actions between the parties. In the first of these actions, the superior court ultimately declared the lease terminated. A second action brought by Brandstetter was resolved by a settlement agreement that, among other things, restored Brandstetter to possession of the premises. Lembi and Kockos then filed the third action, seeking reinstatement of the lease and tort damages from Brandstetter. Brandstetter prevailed on summary judgment in this final action and was awarded attorney fees.

A modification decision.

In this consolidated appeal, a plaintiff downhill condominium homeowners association (HOA) and numerous individual homeowners therein (hereafter, appellants) appeal from a judgment entered against them in their nuisance suit against the defendant and respondent uphill condominium HOA, Saddleback Homeowners Association, (hereafter respondent). In their actions, appellants had alleged that the respondent HOA (and others with whom there were pre-trial settlements) were responsible for a continuing nuisance which had resulted in rock and shale falling on and into appellants property, resulting in property damage and emotional distress. After a bifurcated trial in which the jury made several factual findings which were contrary to appellants contentions, the court entered judgment in favor of respondent. Court affirm that judgment.

Many years ago, respondents Alameda County Flood Control and Water Conservation District (ACFCD) and Union Sanitary District constructed public improvements on the subject property in Fremont. This construction activity altered drainage patterns, thereby creating wetland on a portion of the property. Shortly after appellant Baccarat Fremont, LLC (Baccarat) purchased the property for development in 1997, the United States Army Corps of Engineers (Corps) asserted jurisdiction over the wetlands. In March 2005, Baccarat sued respondents in inverse condemnation, claiming that the Corps final decision, in which it reaffirmed an earlier jurisdictional determination, prevented the company from developing a large portion of the project and required substantial expenditures to implement mitigation measures. Baccarat amended the complaint in December 2007, to add a negligence claim seeking recovery of attorney fees it expended in litigation against the Corps challenging the Corps assertion of jurisdiction over the wetlands. The trial court concluded, among other points, that both causes of action were time barred and sustained respondents demurrers without leave to amend. Court agree and affirm.

Benjamin Moreno, Jr., (appellant) appeals from a judgment entered after he pled guilty to various offenses including attempted murder (Pen. Code,[1] 187, 664). Appellants counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and did not file such a brief. Having independently reviewed the record, Court conclude there are no issues that require further briefing, and affirm the order.

Ralph Martin filed a complaint against James Knauss for his alleged breach of a settlement agreement, fraud, and breach of the implied covenant of good faith and fair dealing. Knauss filed an anti-SLAPP motion to strike the causes of action for fraud and breach of the implied covenant. The trial court granted the motion to strike the fraud claim, but denied it as to the claim for breach of the implied covenant. Knauss appeals, and argues that his conduct that was alleged to breach the implied covenant of good faith and fair dealing was protected by the litigation privilege. We conclude that whether or not Knausss actions may have been protected by the litigation privilege, Knauss has failed to show the implied covenant claim arose from first amendment speech or petitioning activity that is protected by the anti-SLAPP statute. Court affirm the trial courts order.

Appellant Donald Farrell (Donald)[1] seeks to reverse an order of the probate court entered on a verified petition filed by his deceased brothers widow, Lois Farrell (Lois). The petition sought judicial construction of a trust instrument executed by Loiss mother-in-law, Edith Farrell (Edith), during her lifetime, Donalds removal as trustee, and an accounting from Donald for the period of time he administered the trust.
The challenged ruling by the probate court found that Lois had standing to bring the petition because Manuel Farrell (Manuel), Loiss deceased husband, was a trust beneficiary in that he outlived Edith, as required by the terms of the trust. In so ruling, the probate court rejected Donalds argument that the 60 day survivorship requirement in Ediths pour-over will supplemented and was incorporated into the survivorship clause in Ediths trust. The court did not rule on whether Donald should be removed as trustee, but ordered Donald to provide a complete accounting.

Mary C. Theurer and Michael C. Theurer cross-appeal from the judgment entered in their marital dissolution action after bifurcated trials. Court affirm.

Respondent Jon M. Gunderson (Gunderson) filed suit against appellants Richard Wall (Wall), Welded Fixtures, Inc. (Welded), and Christopher Gruys (Gruys) (collectively, Appellants) for violation of the California Uniform Fraudulent Transfer Act (UFTA) (Civ. Code,[1] 3439 et seq.). The gravamen of Gundersons complaint was that Gruys fraudulently transferred to Wall and Welded approximately $1.3 million in funds that belonged to Gunderson. Following a jury verdict in his favor, Gunderson was awarded compensatory damages against Wall and Welded, and punitive damages against Wall, Welded and Gruys. For the reasons set forth below, we conclude that substantial evidence supported the verdict against Wall and Welded for compensatory damages on the fraudulent transfer claim, but not the awards of punitive damages. We further conclude that the trial court abused its discretion in issuing a discovery sanction order that precluded Gruys from presenting any evidence or cross-examining any witnesses at trial based on his invocation of the Fifth Amendment privilege against self incrimination during discovery. Court accordingly affirm in part and reverse in part the judgment, and remand the matter for further proceedings consistent with this opinion.