CA Unpub Decisions

This appeal represents one chapter in an ongoing dispute arising from efforts by plaintiff and appellant William Anderson (Plaintiff or Anderson), since 2000, to air his concerns about the finances and management of the owner and operator of the mobile home park where he lives (Vista Pioneers I, Inc. (VPI), a nonprofit mutual benefit corporation). In March 2007, Plaintiff filed this legal malpractice complaint against his former attorneys who had represented him in an action challenging certain decisions by VPI, these defendants and respondents, Mickey Jew and the law firm of Garrison & McInnis, LLP (Attorney Jew's former employer; sometimes collectively Defendants). Plaintiff claims that due to the actions and inactions of these defendants, he lost certain opportunities for redress in the action he was pursuing against VPI, Anderson v. VPI (Super. Ct., San Diego County, 2003, No. GIN033455) (the underlying action or Anderson I). Ultimately, that underlying action was dismissed without prejudice by another attorney for Plaintiff.Our first task is to review the state of the pleadings, in light of Plaintiff's arguments that the demurrers were incorrectly sustained. We will find no abuse of discretion in those orders, and have determined that Plaintiff's malpractice theories are fully presented by the remaining cause of action for abandonment of the underlying action. On de novo review, we next find that the trial court correctly determined Defendants were entitled to judgment as a matter of law, in the absence of any triable issues of material fact as to alleged malpractice that proximately caused harm to Plaintiff, through the loss of his breach of fiduciary theory against VPI. Even if the existence of duty and breach in transferring the file back to Plaintiff is assumed (for purposes of analysis), Defendants adequately showed that there were multiple legitimate reasons not to pursue their underlying action. Defendants' failure to file another amended pleading was not a causative factor of the failure and termination of the underlying action. Summary judgment was appropriately granted. Moreover, on this record, the trial court did not err or abuse its discretion in its rulings that denied the new trial and sanctions motions. The judgment of dismissal and related orders are affirmed.

Maureen Miller (Maureen)[1] appeals from two orders of the family court: (1) The court's November 7, 2008[2] postjudgment findings and order after hearing on her former husband Jeffrey Miller's (Jeffrey's) order to show cause (OSC) request to modify child support (November 7 order) and (2) the court's November 26 ex parte minute order denying Maureen's motion for reconsideration of the November 7 order (November 26 order). Jeffrey is a majority-interest business owner who is not paid a salary and who earned about $1.6 million in Schedule K-1 income[3] in 2007. Notwithstanding the requirements set forth in rule 5.6.3 of the Superior Court of San Diego County, Local Rules[4] (discussed, post), the documentation supporting the income and expense declaration Jeffrey submitted with his request for modification of child support consisted of four "draw" paystubs, each for a two-week pay period, and each in the amount of about $35,000 for four consecutive months. Maureen filed written objections to Jeffrey's income and expense declaration, asserting the supporting documentation did not comply with rule 5.6.3.
Court reverse the portions of the November 7 order determining that Jeffrey's monthly income is approximately $35,000, that the guideline child support amount is $1,303, and that the order reducing the amount of child support is retroactive to July 1, 2008. In all other respects the order is affirmed. On remand, the trial court shall recalculate Jeffrey's monthly income and the guideline child support award. Jeffrey shall pay Maureen's costs on appeal.

In this appeal, defendant and appellant Jeffrey Harold Smith argues that a six-year prison term imposed after he violated his probation was unauthorized, because although the trial court purported to lift a previous stay of execution, in fact, no sentence had ever been pronounced. In his related petition for writ of habeas corpus,[1]he raises essentially the same issue and also argues that the trial judge erroneously failed to recuse himself and indirectly denied him a Vickers hearing[2]with respect to the alleged probation violation. As Court discuss below, we find no reversible error and Court will affirm the judgment.

This is an appeal after defendant Edward Joe Bonilla entered a guilty plea in two consolidated cases (Riverside County Superior Court case Nos. RIF119920 & RIF120892). On September 23, 2004, defendants apartment was under surveillance based on suspicions he was selling drugs. It was reported to officers that he kept the drugs in a magnetic metal box hidden underneath his truck. On that day, Riverside County sheriffs deputies followed defendant to a known drug-trafficking area where he met up with an unknown person. After witnessing what the sheriffs deputies believed to be a hand-to-hand narcotics transaction, they approached defendants truck. After receiving defendants consent, the truck was searched, and the metal box containing drugs was found under the truck. The officers also received consent to search defendants apartment, where they found additional drugs. On December 15, 2004, defendant was staying in a house rented by his sister in Riverside when Riverside police officers went to the house to execute a parole search on another occupant who they believed lived in the house. During the search, defendant was found in possession of keys that opened a locked garage containing weapons and drugs.

Outside the house where he lived in Bakersfield, Michael Patrick Watso stabbed his sister, Christina Maria Watso, in the abdomen with a knife on September 22, 2006.[1] The court found him competent to stand trial. A jury found him guilty of attempted willful, deliberate, and premeditated murder with personal infliction of great bodily injury and with personal use of a deadly weapon, found him guilty of assault with a deadly weapon with personal infliction of great bodily injury, and found him sane at the time of the commission of both crimes. On appeal, Michael challenges on due process grounds the sufficiency of the evidence of mental competence and of deliberation and premeditation, the courts delay in compliance with the jurys request for written instructions, and the courts conduct of the mental competence proceedings. Court affirm the judgment.

Ismael Angel Reyes, the defendant herein, pleaded no contest to the attempted second degree robbery of Jesus Trejo. (Pen. Code, 211, 212.5, subd. (c), 664.) The trial court accepted the plea and entered judgment against defendant. The court sentenced defendant to three years formal probation, including a condition of serving a one-year term in county jail. Counsel for defendant has filed an opening brief that states the case and facts but raises no issues. We notified defendant of his right to submit written argument on his own behalf. Defendant did not do so.

A modification decision.

Sixteen-year-old D.Y., who had no prior record of delinquency, admitted two of seven alleged robberies committed with other youths. After a lengthy dispositional hearing at which D.Y. presented testimony concerning conditions at the Department of Juvenile Justice (DJJ) and argued for placement at a Youthful Offender Treatment Program (YOTP), the court committed him to DJJ for a maximum term of six years. Court hold that the juvenile court did not abuse its discretion in making this placement and shall affirm its dispositional order.

After the trial court denied his motion to suppress, appellant Xavier Anthony Baker pleaded no contest to possessing more than $100,000 in drug money. (Health & Saf. Code, 11370.6, subd. (a).) On appeal, appellant contends the court erred by denying his motion to suppress because the warrantless search of his car, trunk, cell phone, and personal digital assistant (PDA) violated the Fourth Amendment. Court affirm.

Dana Douglas White appeals from the judgment entered following his convictions by jury for attempted voluntary manslaughter (Pen. Code, 664, 192, subd. (b)) as a lesser-included offense of count 1 - attempted willful, deliberate, and premeditated murder (Pen. Code, 664, 187) and on count 2 - shooting from a motor vehicle (Pen. Code, 12034, subd. (c)) with findings as to each offense that he personally and intentionally discharged a firearm causing great bodily injury (Pen. Code, 12022.53, subd. (d)) and personally inflicted great bodily injury (Pen. Code, 12022.7, subd. (a)), and on count 3 possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1)). The court sentenced appellant to prison for 28 years to life. Court affirm the judgment in part, reverse it in part, vacate it in part, and remand with directions.

This is a suit for a refund of telephone user taxes paid by plaintiff TracFone Wireless, Inc. (plaintiff) to defendant City of Los Angeles (city). The trial court sustained the citys demurrer to plaintiffs first amended complaint without leave to amend, and then entered judgment in favor of the city. Court reverse.

By information, defendant Derrick Dontay Porter was charged with assault with a deadly weapon to wit . . . trash can[1] (Pen. Code, 245, subd. (a)(1)), and with criminal threats ( 422).[2] He was jointly tried by jury with codefendant Marcus Malone, who was charged with a separate count of assault with a deadly weapon (a steel pipe) and with the enhancement allegation of inflicting great bodily injury on Flores. At the close of the prosecutions evidence, the trial court granted defendants motion for judgment of acquittal under section 1118.1 on the charges against him in the information, but permitted the prosecution to amend to allege two other counts shown by the evidence: assault by means of force likely to produce great bodily injury by kicking and by using his fists ( 245, subd. (a)(1)), and attempted criminal threats ( 664/422). The jury convicted defendant of assault by means of force likely to produce great bodily injury, and acquitted him of attempted criminal threats. (It convicted Malone of assault with a deadly weapon and found the great bodily injury allegation against him true.) The trial court placed defendant on probation for three years and ordered that he serve 184 days in county jail (time served). On appeal, defendant contends that the trial court erred in permitting the prosecution to amend to charge assault by means of force likely to produce great bodily injury by kicking and using his fists. Court disagree and affirm the judgment.

Appellant Juan Jose Badajoz appeals from the judgment entered following his convictions by jury on count 2 attempted murder (Pen. Code, 664, 187) and count 3 second degree robbery (Pen. Code, 211) with, as to each offense, personal use of a firearm (Pen. Code, 12022.53, subd. (b)), personal and intentional discharge of a firearm (Pen. Code, 12022.53, subd. (c)), personal and intentional discharge of a firearm causing great bodily injury (Pen. Code, 12022.53, subd. (d)), and personal infliction of great bodily injury (Pen. Code, 12022.7, subd. (a)), on count 4 second degree robbery (Pen. Code, 211) with personal use of a firearm (Pen. Code, 12022.53, subd. (b)), personal and intentional discharge of a firearm (Pen. Code, 12022.53, subd. (c)), and personal and intentional discharge of a firearm causing great bodily injury (Pen. Code, 12022.53, subd. (d)), and on count 5 assault with a firearm (Pen. Code, 245, subd. (a)(2)) and count 6 false imprisonment by violence (Pen. Code, 236) with, as to each of counts 5 and 6, personal use of a firearm (Pen. Code, 12022.5, subd. (a)), and following appellants plea of no contest to count 14 second degree robbery (Pen. Code, 211) with an admission that he personally used a firearm (Pen. Code, 12022.5, subd. (a)). The court sentenced appellant to prison. Court vacate appellants sentence and remand for resentencing to permit the trial court to clarify its sentence as to count 2, but we otherwise affirm the judgment with directions.

Appellant Luca Colombo challenges a judgment requiring him to remove a deck, partially located on his property and partially located on property owned by one respondent. None of Colombos arguments has merit, and Court affirm the judgment.