CA Unpub Decisions

Cynthia Lee Erickson appeals a conviction of operating a vessel under the influence of an alcoholic beverage causing injury. She contends the trial court: (1) erroneously permitted a prosecution witness to testify as to the cause of the accident; (2) improperly instructed the jury; (3) had a sua sponte duty to give lesser included offense instructions; and (4) abused its discretion by denying probation. She also contends that the cumulative effect of these errors warrants reversal of the judgment. As Court shall explain, we reject Erickson's individual claims of error. Because there were no individual errors, there is no cumulative error and we need not address this claim.

In this suit for enforcement of requirements under the covenants, conditions and restrictions (CC&R's) of a condominium project, Barbara J. Woodbury appeals an award of $316,106.99 in statutory and contractual attorney fees to Seacrest Villas Homeowners Association (the Association) and David Brown.[1] Woodbury contends that even though she voluntarily dismissed her damages claims, and judgment was entered against her on her legal claims, she is the prevailing party as a practical matter because shortly before or during trial the Association satisfied or agreed to satisfy her demands. She asserts the court erred by not applying the correct legal standard to its prevailing party analysis. Woodbury, however, ignores the evidence supporting the court's findings that her claims were largely unfounded, insubstantial, or controlled by Lamden v. La Jolla Shores Condominium Homeowners Assn. (1999) 21 Cal.4th 247 (Lamden), under which courts defer to a homeowners association's decisions on day to day affairs, such as the particular methods of maintaining common areas of the project, under the business judgment rule. Court find no error or abuse of discretion and affirm the judgment and the order.

Adriana P. and Richard S., Sr., (together the parents) appeal orders terminating their parental rights to their son, Richard S., Jr., (the minor), and referring him for adoption. The parents contend the court erred by finding the beneficial parent-child relationship exception to termination of parental rights under Welfare and Institutions Code section 366.26, subdivision (c)(1)B)(i) did not apply in the case to preclude termination of parental rights. Court affirm the orders.

James Morris is representing himself, in propria persona, in a marriage dissolution action. Because James filed a belated notice of appeal, Court dismiss his appeal.

The People seek a writ of mandate directing the trial court to vacate its order dismissing a commitment petition filed pursuant to the Sexually Violent Predator (SVP) Act. (Welf. & Inst. Code, 6600 et seq.) Court grant the petition, finding that real party in interest (defendant) was not in lawful custody at the time the petition was filed, but that this was the result of a good faith mistake of fact and/or law.

In a prior appeal in the present action (Pfeffer v. Missionary Foundation, Inc. (Nov. 15, 2007, E041935) [nonpub. opn.] [Fourth Dist., Div. Two]), this court reversed a money judgment in favor of plaintiff Matthew Pfeffer (Pfeffer) in the principal amount of $700,000. Thereafter, defendant Missionary Foundation, Inc. (MFI) obtained a judgment on the pleadings against Pfeffer, and moved for attorney fees as the prevailing party on a contract pursuant to Civil Code section 1717. The trial court denied MFIs motion, reasoning that the present action by Pfeffer is not an action on a contract within the meaning of the statute, but an action sounding in tort for fraud. MFI appeals, claiming the present action by Pfeffer is an action on a contract, and the trial courts contrary conclusion is erroneous as a matter of law. Court affirm.

After plaintiff Fernando Ornelas had worked for defendant Nestl Waters North America, Inc. (Nestl) for 29 years, he was terminated, supposedly for being away from his work station while clocked in and thus falsifying his timecard. Ornelas filed this action, asserting age discrimination and other claims. The trial court granted summary judgment against him. It ruled that he could not prove a prima facie case that he had been terminated based on age; it also ruled that Nestl had proven a legitimate, nondiscriminatory reason for the termination. Ornelas appeals. He argues, among other things, that he introduced evidence sufficient to raise a triable issue of fact as to whether Nestls assertion that he was fired for being away from his work station was pretextual. Court need not reach the issue of pretext, however, because Ornelass claims fail for a more fundamental reason Nestl disproved a prima facie case of unlawful discrimination. Accordingly, Court affirm.

On August 25, 2008, appellant Richard Ray Feliz was convicted of the 1994 murder of Shiloh Rodriguez. (Pen. Code,[1] 187, subd. (a).) The jury also found that Feliz had used a dangerous weapon in the commission of the offense. ( 12022, subd. (b)(1).) Although Feliz initially was arrested as a suspect at the time of the murder, he was not charged until much later in January 2007 after DNA evidence tied him to the murder. Felizs first trial resulted in a mistrial after the jury was unable to reach a unanimous verdict. After the conviction in the second trial, the trial court sentenced Feliz to a term of 25 years to life, plus one year for the dangerous-weapon enhancement. Credit of 654 days was awarded for time served with no good-time/work-time credit awarded pursuant to the limit imposed by section 2933.2.

Appellant, Raymond Whitall, was found guilty after a jury trial of second degree burglary (Pen. Code, 459, count one), attempted extortion ( 524, count two), and impersonating a public officer, investigator, or inspector ( 146a, subd. (b), count three). In a bifurcated proceeding, appellant waived his right to a jury trial and admitted four prior serious felony convictions within the meaning of the three strikes law ( 667, subds. (a)-(i) & 1170.12, subds. (a)-(d)).
On December 2, 2008, the trial court denied appellants request pursuant to section 1385 to strike one or more of his prior serious felony convictions. The court sentenced appellant to prison for 25 years to life on count one. It imposed the same sentence on counts two and three, but stayed sentence on those counts pursuant to section 654. The court imposed a restitution fine and awarded applicable custody credits. Appellant contends the trial court abused its sentencing discretion in failing to dismiss one or more of his prior serious felony convictions pursuant to People v. SuperiorCourt (Romero) (1996) 13 Cal.4th 497 (Romero).

On December 3, 2008, appellant Jason Edward Jeffers pled no contest to possession of heroin (Health & Saf. Code, 11350, subd. (a)) and admitted a strike allegation.[1] He entered his plea on the condition that he receive a sentence of four years in prison. On December 5, 2008, the court imposed a prison term of four years, consisting of the two-year middle term on the substantive offense, doubled pursuant to the three strikes law (Pen. Code, 667, subd. (e)(1); 1170.12, subd. (c)(1)).

On April 27, 2004, appellant Jason E. Jeffers, pursuant to a plea agreement, pled guilty to possession of heroin (Health & Saf. Code, 11350). In a separate proceeding, the court found true enhancement allegations that appellant had served three separate prison terms for prior felony convictions (Pen. Code, 667.5, subd. (b)). On May 27, 2004, the court suspended imposition of sentence and placed appellant on Proposition 36 probation for a period of three years.
The judgment is affirmed.

In Stanislaus County Superior Court case No. 1072252 (case No. 1072252), appellant, Israel Garibay Covarrubias, pled no contest to voluntary manslaughter (Pen. Code, 192, subd. (a)) [1]and admitted allegations that in committing that offense he personally used a firearm ( 12022.5, subd. (a)) and that he had suffered a strike. [2] In Stanislaus County Superior Court case No. 1230278 (case No. 1230278), appellant pled no contest to possession of a weapon while confined in jail ( 4502, subd. (a)) and admitted a strike allegation. At a sentencing hearing covering both cases, the court imposed a prison term of 34 years, consisting of 22 years on the substantive offense in case No. 1072252, 10 years on an arming enhancement in that case, and two years on the substantive offense in case No. 1230278. On appeal, appellant contends the court erred in refusing to allow appellant to present a motion to withdraw his plea in case No. 1072252. Court reverse and remand for further proceedings.

Last year, we reversed a writ of mandate in which the trial court had directed respondent Kern County Employees Retirement Association (KCERA) to award a service-connected disability retirement to appellant John H. Benedict. The court had failed to apply the independent judgment standard of review and had failed to consider KCERAs evidence. On remand, the trial court rejected its previous conclusion and denied the writ petition. This time, it considered all the evidence and found for KCERA. It did not, however, state that it applied the independent judgment standard of review. Instead, it explained that it found the evidence supporting KCERAs position to be substantial. Since it appears that the court has not applied the independent judgment standard of review, we feel constrained to reverse and remand.

Michael Sisson appeals from the judgment in this marital dissolution action. Specifically, he challenges the portions of the judgment awarding his former wife, Kathy Sisson, permanent spousal support in the amount of $2,000 per month, and ordering him to pay more than $100,000 of the attorney fees and costs she has incurred herein.

Michael[1] argues the spousal support award must be reversed because the court failed to consider each of the factors set forth in Family Code section 4320. Although Michael unnecessarily (and implausibly) asserts the court failed to consider nearly every singlefactor set forth in the statute, the courts judgment explicitly rejects consideration of one important factor, while failing to acknowledge a second also significant one. Consequently, Court agree the spousal support order must be reversed.