CA Unpub Decisions

Mother appeals from a judgment terminating her parental rights (Welf. & Inst. Code, 366.26) to two children, both under the age of three. She contends that (1) there is insufficient evidence to support the juvenile courts finding that the children were adoptable and (2) the adoption assessment was inadequate. Court affirm.

Father appeals from a juvenile court order terminating his parental rights to his daughter, A.L. (born in February 2007). Father contends there was insufficient evidence to support termination of his parental rights under Welfare and Institutions Code section 366.26.[1] Specifically, he argues there was an absence of clear and convincing evidence demonstrating father is an unfit parent. Mother joins in fathers contentions on appeal and argues that, if this court reverses the trial court order terminating fathers parental rights, this court must also reverse the order terminating her parental rights. Court reject fathers contentions and thus affirm the judgment as to both father and mother (parents).

The court has read and considered the record in this proceeding and has concluded that an alternative writ would add nothing to the presentation already made and would cause undue delay in bringing the action to trial. We therefore issue a peremptory writ in the first instance. (Code Civ. Proc., 1088; Palmav.U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-179; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another groundin Hassan v. Mercy American River Hosp. (2003) 31 Cal.4th 709, 724, fn. 4.) While Welfare and Institutions Code section 827 generally governs access to juvenile court records and allows inspection by any person designated by the court, it does not encompass juvenile records that have been sealed under section 781, with certain exceptions: such material is admissible in defamation cases and where the Department of Motor Vehicles has obtained it and disclosed it to an insurer.

Appellant H.O. (mother) appeals from the juvenile courts denial of her motion to reinstate reunification services. On appeal, she contends (1) the guardian ad litem improperly waived mothers trial rights at the dispositional hearing and then failed to appeal, (2) the juvenile court erred by excluding certain evidence at the hearing on the petition to modify and (3) the juvenile court abused its discretion by failing to grant the petition to modify. Court will affirm the juvenile courts orders.

Paul R. Virga (father) is the husband and father in a marital dissolution and child custody proceeding. Father was the subject of a police investigation involving troubling conversations with a third-party female. Although the district attorney did not charge father, authorities provided the police report to the family court, which, after hearing, ordered father to undergo sexual interest testing.

Father contends the trial court erred in ordering the testing because he received no notice the court would order the examinations, and the tests violated his constitutional right to privacy. Maryl E. Gladstone (mother) asserts the court ordered the tests pursuant to stipulation, and therefore father has no basis for appeal. Father, in turn, asserts the purported stipulation was never made. Alternatively, he contends any purported stipulation is unenforceable because the parties did not memorialize the agreement in writing and the court failed to enter it into the court minutes.

Omar Sheriff Pryce seeks a writ of habeas corpus in this court after the trial court denied his petition. We directed the parties to file an informal response and reply on the issue of whether petitioner received ineffective assistance of counsel when counsel failed to call hair stylist Sherri Norals as an alibi witness. Following the parties submissions, we ordered the petition returned to the trial court for a hearing to take evidence and make findings to enable us to resolve the habeas question. The trial court heard testimony from five witnesses: Norals; petitioners trial counsel, Early Hawkins; Hawkinss assistant, and two investigators. When the trial court concluded counsel lacked any objectively reasonable tactical reason for not locating Norals or calling her as witness, we issued an order to show cause on the habeas petition, and the Attorney General and petitioner filed their return and traverse, respectively.
Among other arguments, the Attorney General contends it is not reasonably probable petitioners jury would have acquitted him of first degree robbery-burglary or other charges had the jury heard Noralss testimony. We agree. Norals confirmed petitioners and his friends trial testimony that petitioner accompanied the friend to a hair braiding appointment at 4:00 p.m. on the day of the burglary. Norals did not remember how long the braiding session lasted, but surmised it may have been an hour or up to one hour and 15 minutes based on her recollection of the length of the friends hair. Petitioner and his friend, however, both testified at trial they left the hair salon at 4:45 p.m. Trial testimony also established petitioner arrived outside the scene of the burglary soon after 5:00 p.m. (People v. Pryce (Sept. 29, 2006, G036322) [nonpub. opn.] (Pryce).) The parties stipulated at the habeas evidentiary session below that the driving time from the hair salon to the victims residence was approximately 13 minutes.

Plaintiff Rosalinda Enriquez approached defendant Amerifirst Mortgage Corporation (Amerifirst) to remove her brother from the mortgage they held together on plaintiffs home. Although Amerifirst should have advised her simply to pay her existing lender a fee for removing his name from the existing mortgage, Amerifirst instead refinanced plaintiffs home into a new mortgage and home equity line of credit (HELOC). Incorrectly expecting that Amerifirst would use the HELOC proceeds to pay off the outstanding balance on her car loan, plaintiff sought information from Amerifirst and the lender about the allocation of the HELOC proceeds. Receiving no response, plaintiff eventually stopped making payments on the HELOC, hoping this would prompt the lender to answer her questions. The lender foreclosed on plaintiffs home, and hired defendant Fidelity National Agency Sales and Posting (Fidelity) to conduct the auction. The lender was willing to let plaintiff redeem the property up to the time of the sale, but when plaintiff presented the redemption money to the Fidelity auctioneer at the time set for the sale, the auctioneer informed her the property had been sold five minutes earlier.

Cross-complainant Kenneth R. Melton and Randall J. Friend were members of Eagle Real Estate Management Group, LLC (Eagle Management), which managed a real estate investment enterprise, Eagle Real Estate Group, LLC (Eagle Real Estate), specializing in using tax exempt bonds to finance the acquisition and renovation of large apartment complexes offering affordable housing units. The Eagle Management Operating Agreement (Management Agreement) required Friend to devote his full time and business efforts to Eagle Management and refrain from engaging in any other business that would require a substantial commitment of his time. After several successful years of operating the business, Friend turned his attention to the creation of a new bank. Without Meltons permission, Friend ceased his efforts in Eagle Management to form cross-defendant First Western Corporation (First Western), which was the predecessor to cross-defendant Southern California National Bank (bank). Melton sued First Western and the bank, alleging causes of action for aiding and abetting breach of fiduciary duty, interference with contract, and interference with prospective economic advantage. Melton alleged First Western and the bank were vicariously liable for the acts of Friend and his associates in creating and operating respondent companies. The trial court sustained respondents demurrers without leave to amend as to all of the causes of action and dismissed the complaint.

Upon finding J.R. committed assault with a deadly weapon, the juvenile court granted him probation subject to various terms and conditions. J.R. contends three of the conditions are unconstitutional, and Court believe two of them are. We will modify those conditions and affirm the judgment in all other respects.

A modification decision.

A jury convicted defendant Mariano Torres Mendez of witness intimidation (Pen. Code, 136.1, subd. (c)),[1]aggravated assault ( 245, subd. (a)) with great bodily injury ( 12022.7, subd. (a)), three counts of active gang participation ( 186.22, subd. (a)), possession of ammunition ( 12316, subd. (b)(1)) and found allegations that defendant committed these crimes to benefit a criminal street gang ( 186.22, subd. (b)) to be true. Defendant contends the trial court erred by instructing the jury to consider evidence of his pretrial oral statements with caution (Judicial Council of Cal. Crim. Jury Instns. (2006-2007) CALCRIM No. 358), and he is entitled to an additional seven days of presentence credit. The Attorney General concedes the latter issue. For the reasons expressed below, Court direct the trial court to modify the judgment to correct defendants sentencing credits and otherwise affirm the judgment.

Cross-complainant Kenneth R. Melton was one of three members of Eagle Real Estate Management Group, LLC (Eagle Management), which managed a real estate investment enterprise, Eagle Real Estate Group, LLC (Eagle Real Estate), specializing in using tax exempt bonds to finance the acquisition and renovation of large apartment complexes offering affordable housing units. Cross-defendants Larry Ballard, David Conant, Wyn Holmes, Kyle Martin, Jose Sanchez, David Whitmore, Lee Brockett, Robert Zeltner and United Financial Group, Inc., are passive investors in Eagle Real Estate. After several years of business success, Melton reached agreement with the other members of Eagle Management that allowed him to reduce his involvement in Eagle Management, and pursue a competing business. After efforts to purchase most or all of Meltons interest in Eagle Management proved fruitless, the other two members locked Melton out of the business. After Melton and the other two Eagle Management members sued each other, respondents executed an amendment to the Eagle Real Estate operating agreement replacing Eagle Management with a similar enterprise that excluded Melton.
Court also conclude the trial court did not err in granting summary judgment on Meltons interference with contract and aiding and abetting breach of fiduciary duty claims. Melton provided no evidence establishing respondents knowledge of the current terms of Eagle Managements operating agreement, or the informal agreement allowing Melton to pursue competing activities. Accordingly, Melton failed to raise a triable issue of fact whether respondents had the requisite knowledge and intent to interfere with the Eagle Management agreement or aid and abet a breach of fiduciary duty. Court therefore affirm the judgment.

A jury convicted defendant Eulises Cruz Perez of 40 counts of aggravated sexual assault (forcible rape) against his stepdaughters when they were under 14 years of age. (Pen. Code, 269, subd. (a)(1), 261, subd. (a)(2); all statutory citations to this code unless noted.) Defendant argues the trial court abused its discretion by denying his motion to relieve his attorney and appoint new counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). For the reasons expressed below, Court affirm.

Appellant Terri Curtis was terminated from her position as a compensation manager for respondent Silicon Valley Bank (SVB). Curtis, who was 41 years old at the time of her termination and had returned from maternity leave five months prior to her discharge, brought an action against SVB for age discrimination, gender discrimination, and wrongful termination in violation of public policy. The trial court granted summary adjudication of each of Curtiss causes of action and, hence, SVBs motion for summary judgment.
On appeal, we conclude that SVB presented sufficient evidence of nondiscriminatory reasons for terminating Curtis and that Curtis failed to present substantial responsive evidence demonstrating the existence of a material factual dispute with regard to pretext or discriminatory animus on the part of SVB. Court therefore hold that the court properly granted summary adjudication of Curtiss causes of action for age and gender discrimination. Court also hold that Curtis cannot state a claim for wrongful termination in violation of public policy. Court therefore affirm the summary judgment.