CA Unpub Decisions

This is an appeal from a final judgment following the conviction of appellant Lance C. Morton, Jr. by a jury for willful, deliberate and premeditated attempted murder, assault with a deadly weapon, first degree burglary, and corporal injury to a spouse. For the reasons stated below, we remand this matter to the trial court for the limited purpose of resentencing appellant, but in all other regards affirm the judgment.

This case returns after remand ordered in People v. Chan-Tapia (May 24, 2007), A113166 ([2007 Cal. App. Unpub. Lexis 4176], [unpub. opn.], rehg. den. June 13, 2007, review den. Aug. 29, 2007, S154021) (Chan-Tapia I). For reasons explained below, Court dismiss this appeal for appellants failure to obtain a certificate of probable cause pursuant to section 1237.5.

Plaintiff George Morf appeals from a summary judgment dismissing his complaint against defendants Meridian Commercial, Inc. (Meridian), Thomas J. Kearney, and Alex McLean. Court agree that summary judgment should not have been granted and, therefore, shall reverse the judgment and remand for further proceedings.

Following a bench trial, the trial court entered an order continuing appellant Richard A. Edisons commitment for an indeterminate term in the custody of the Department of Mental Health (DMH) as a sexually violent predator (SVP), within the meaning of the Sexually Violent Predators Act (Welf. & Inst. Code,[1] section 6600 et. seq.) (the SVPA). In his opening brief, Edison contends the order should be reversed because his indeterminate commitment under the SVPA, as amended in 2006, violates his federal constitutional rights (1) to due process of law, (2) against ex post facto laws, and (3) to equal protection under the law. Edison also argues that the order should be reversed because his indeterminate commitment violated an alleged agreement between the parties and the court that the commitment would be for a term of two years. In a supplemental opening brief, appellant further contends that the trial courts order should be reversed because it is based upon the DMHs illegal use of underground regulations in the evaluation and screening process of SVPs. Court affirm.

In these consolidated appeals, C.M. challenges two orders issued in dependency proceedings initiated under Welfare and Institutions Code section 300: an order placing her daughter H.M. with H.M.s father, and a subsequent order terminating the juvenile court dependency over H.M. Court affirm the orders.

N.M. appeals after the juvenile court sustained a petition alleging that N.M. forcibly resisted a police officer in the performance of his duties and committed battery on a police officer in the performance of his duties. Appellant challenges the sufficiency of the evidence, contending he was unlawfully arrested at the time of the alleged offenses. Court affirm.

In an earlier appeal arising out of this personal injury case, we affirmed a judgment against defendant City of Oakland (City) in favor of plaintiff Carl J. Navarra. This appeal is from a writ of mandate directing the City to pay postjudgment interest using the 10 percent interest rate specified in the judgment. The City claims an incorrect rate of interest was included in the judgment as a result of clerical error, which may be corrected at any time. We disagree and, accordingly, affirm the judgment.

Plaintiffs Regina Birkner, Nyri Scanlon, Charles Birkner and William Rogers Burton brought this action to recover damages from their landlord, defendant Kwai Ho Lam, based on his service of, and refusal to rescind, a notice to terminate plaintiffs tenancy. Lam moved to strike the complaint as a strategic lawsuit against public participation pursuant to Code of Civil Procedure[1] section 425.16 (the anti-SLAPP statute). On a prior appeal, this court concluded that Lam had met his prima facie burden of showing that his service and refusal to rescind the termination notice was in furtherance of his constitutionally protected right to petition. (Birkner v. Lam (2007) 156 Cal.App.4th 275, 281-285 (Birkner I).) Because the trial court had not ruled on whether plaintiffs had met their burden of showing the likelihood of prevailing on their claims, Court remanded the matter for a determination of that issue. (Id. at p. 286.)

Roger Pierre Estournes (appellant) appeals from a judgment entered after he pled guilty to possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) and commercial burglary (Pen. Code, 459). He contends the trial court erred in refusing to strike a prior strike on its own motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Court reject the contention and affirm the judgment.

Following the denial of his motion to suppress evidence under Penal Code section 1538.5, defendant Alberto Tirrez pleaded guilty to possession of a firearm by a felon and possession of a concealed weapon. This appeal challenges the ruling on the motion to suppress. Because Court conclude officers had a reasonable basis to detain and frisk Tirrez, Court affirm.

Pursuant to a negotiated disposition, appellant M.B. pleaded no contest to allegations of a Welfare and Institutions Code section 602, subdivision (a) petition that he committed second degree robbery (Pen. Code, 211), and one felony count of resisting an executive officer (Pen. Code, 69). The remaining count and enhancement allegations were dismissed. In its dispositional order the court declared appellant to be a ward of the court, placed him in a group home, and set the maximum time of confinement at five years eight months. Appellants sole contention on appeal is that the court failed to declare whether the count of resisting an executive officer was a felony or misdemeanor, and as a result, the matter must be remanded with directions to the court to specify the level of the offense, and, if necessary, recalculate the maximum term of confinement. Court find no error, and affirm the judgment.

Guillermo Torrero and Esperanza Sidar, husband and wife, appeal from the trial courts judgment awarding them $106,989.67 in their wage and hour suit. Torrero and Sidar lived in the home of Tom Soto and his wife Lucy Soto, and cared for the elderly couple for most of 2004. On appeal, they argue (among other claims) that they are due more compensation. Because we conclude that the trial court correctly applied the law, Court affirm.

Defendant, cross-complainant, and appellant Timothy Fuller (appellant), in pro. per., appeals from an August 23, 2007 order denying his ex parte motion to set aside an earlier judgment and from a September 6, 2007 order awarding sanctions against him for his violation of Code of Civil Procedure section 1008 (all future undesignated statutory references are to this code). He contends neither order was supported by substantial evidence. Court affirm.

This is an appeal from the denial of a writ petition, styled as a class action, filed by employees of Albertsons Inc. (Albertsons) seeking to reverse an administrative decision denying them unemployment insurance benefits during an 18-week lockout by Albertsons. On demurrer, the trial court ruled that the employees failed to allege sufficient facts supporting equitable tolling. The trial court also struck the class allegations as overly broad. The employees elected not to amend their petition in order to pursue the present appeal. Court reverse and remand for further proceedings.