CA Unpub Decisions

Plaintiff Randall Cordova, a carman employed by defendant BNSF Railway Company (hereafter referred to as BNSF), was injured when an angle cock[1]he was repairing flew off the assembly and struck him in the face. On appeal from a summary judgment in favor of BNSF, Cordova contends that he made an adequate showing of the existence of a triable issue of material fact under the relaxed standards which apply under the Federal Employers Liability Act (FELA). (45 U.S.C. 51 et seq.) He also contends that BNSFs motion addressed only one of the several theories of negligence pleaded in his first amended complaint, and that the court incorrectly found that it was his burden to demonstrate the existence of a triable issue of fact as to the theories which were not challenged in the motion. Court agree with Cordovas latter contention, and Court reverse the judgment.

An 11-count amended information was filed on July 18, 2008, which consolidated four different instances of possession or transportation of methamphetamine occurring on December 4, 2007; October 28, 2007; October 12, 2007; and July 19, 2007. It also alleged misdemeanor offenses and certain enhancement allegations. Defendant filed a notice of appeal on August 13, 2008, stating, This appeal is based on the sentence or other matters that occurred after the plea and do not affect its validity. No other grounds for appeal were stated, and defendant did not request a certificate of probable cause (Pen. Code, 1237.5).

A jury convicted Tannen Soojian of various crimes resulting from an armed robbery of Joyce Ahumada and her son, Morgan Ahumada.[1] Joyce was shot during the robbery, sustaining serious injuries. The crimes for which Soojian was convicted included attempted murder (Pen. Code, 664, 187)[2]and robbery ( 211). Soojian contends the trial court abused its discretion in denying the motion because it relied on law that was inapplicable to the motion. As we shall explain, Court agree and will vacate the order denying the motion for a new trial and remand the matter to the trial court for reconsideration of the motion.

In May 2006, a jury convicted appellant Bobby Lee Kinder of felony evasion of a peace officer (Veh. Code, 2800.2; count 1), driving under the influence of drugs and/or alcohol (Veh. Code, 23152, subd. (a); count 2) and driving while having a blood alcohol content of .08 percent or more (Veh. Code, 23152, subd. (b); count 3); in a separate proceeding, the court found true allegations that appellant had suffered three strikes;[1]andappellant admitted allegations he committed the count 2 and 3 offenses within 10 years of suffering three or more prior convictions of driving under the influence (Veh. Code, 23550). In July 2006, the court struck two of appellants strikes and imposed a prison term of eight years eight months. That term consisted of the three-year upper term on count 1 and 16 months on count 2, with each of these terms doubled pursuant to the three strikes law ( 667, subd. (e)(1); 1170.12, subd. (c)(1)). The court stayed sentence on count 3 pursuant to section 654. On appeal, appellants sole contention is that the court abused its discretion in refusing to strike appellants strikes because, appellant asserts, the court mistakenly believed, based on this courts opinion in the first appeal, that it had no discretion to do so. Court affirm.

In this, the eighth appeal arising out of the underlying lawsuit, Sole Energy Company v. Petrominerals Corporation, Orange County Superior Court case No. 00CC06333,[1] Harwood Capital, Incorporated (Harwood), challenges the judgment entered after the trial court granted the motion of Petrominerals Corporation (Petrominerals) for summary judgment. For reasons we shall explain, we affirm the judgment on Harwoods causes of action for intentional interference with contract and intentional interference with prospective economic advantage, reverse the judgment on the cause of action for fraud, and remand. In addition, Harwood produced sufficient evidence to raise triable issues of material fact on each element of fraud. Accordingly, we reverse summary judgment in Petromineralss favor on the fraud cause of action, but only to the extent that cause of action is based on alleged misrepresentations made by Hodges.

A modification decision.

This is defendants second appeal arising from his convictions for second degree murder, shooting at an occupied motor vehicle, and personal, intentional discharge of a firearm, proximately causing the death of the victim. (Pen. Code 187, 246, 12022.53, subd. (d).)[1] He was sentenced to state prison for 40 years to life, plus five years. In his first appeal, H030338 (nonpub., filed 9/20/07), this court determined that the trial court had erred in summarily denying defendants request to withdraw his guilty plea. We reversed the judgment and remanded the case to the trial court to permit defendant, through counsel, to make a motion to withdraw his plea. If defendant declines to move to withdraw his plea, or if the motion is denied, the defendant shall be resentenced in accordance with his plea. (Slip opn., p.7.) In this appeal, which follows resentencing on remand, defendant contends that the trial court erred by imposing far greater restitution fund and parole revocation fines than it had imposed originally. The Attorney General agrees. For the reasons set forth below, Court accept the concession and again reverse the judgment.

Defendant City of Hayward (the city) appeals from a judgment entered in favor of plaintiff Margaret Dufresne, a former building inspector for the city, on her complaint for sexual harassment. The city contends the trial court erred in concluding that the continuing violations doctrine allowed the jury to base liability on conduct that occurred more than one year prior to the filing of her claim with the California Department of Fair Employment and Housing (the DFEH). The city also argues that the court erred in admitting evidence that the city accepted liability in workers compensation proceedings arising out of the same alleged harassment. Finally, the city argues that the court erred in allowing two of plaintiffs witnesses, one of whom was an expert, to testify that in his opinion harassment had occurred. Court affirm.

Beverly Quinney[1] appeals from a judgment in favor of California Casualty Insurance Company on its complaint for declaratory relief that there was no coverage under a policy of insurance it issued to the grandfather of one of the persons criminally responsible for the death of Quinneys son. That judgment was entered at the conclusion of a brief bench trial at which Quinney announced she had no evidence to present. The trial itself was held more than five years after California Casualty filed its initial complaint, but the mandatory dismissal provision of Code of Civil Procedures section 583.360 was deemed inoperative when the trial court implemented the procedure sanctioned by Hartman v. Santamaria (1982) 30 Cal.3d 762 (Hartman). Court reject all of Quinneys contentions and conclude that the judgment must be affirmed. In light of this conclusion, there is no need to address California Casualtys cross appeal, which Court dismiss as moot.

Plaintiff brought an action for specific performance of an agreement for the sale of real property to him from defendant. Following trial before the court in two phases, a verdict was entered in favor of plaintiff. Defendant challenges two findings made by the court: first, that performance of a condition precedent in the contract between the parties was subject to waiver by plaintiff; and second, that the remedy of specific performance of the contract was not barred by the equitable doctrine of unclean hands. Court conclude that defendant has failed to show lack of substantial evidence to support the trial courts findings, and affirm the judgment.

Defendant Andrew Michael Musaelian was convicted by jury of two counts of violating Vehicle Code section 10851 and two counts of forgery (Pen. Code, 470, subds. (c), (d).) The court dismissed two counts of grand theft (Pen. Code, 487, subd. (d)(1)) after the jury was unable to reach a verdict on these counts. The court suspended imposition of sentence and placed defendant on three years of probation. We hold that counsel rendered effective assistance, and that any error with respect to the failure to give an instruction on the claim of right defense was harmless. Since the Attorney General concedes error with respect to the probation condition, Court order it stricken, but, in all other respects, affirm the judgment.

Angelo Ortega appeals from orders granting respondents anti SLAPP motion to strike his cross complaint, denying his motion for relief from that order, and awarding respondent attorney fees pursuant to the anti SLAPP statute. (Code Civ. Proc., 425.16.). Court affirm the orders.

Plaintiff Creditor Adjustment Bureau, Inc. (CAB) appeals an order granting defendant Bruce Harpers motion for equitable relief from default and default judgment. On appeal, plaintiff does not dispute that defendant has a meritorious defense. Rather, plaintiff claims that defendant failed to articulate a satisfactory excuse for not presenting a defense to the complaint and failed to show reasonable diligence in seeking to set aside the default judgment. Finding no abuse of discretion, Court affirm.

In these consolidated petitions A.B E. (mother) and A.E. (father), parents of H.E. and S.E., each seek issuance of an extraordinary writ and a stay from the juvenile courts order setting a Welfare and Institutions Code section 366.26 hearing for April 27, 2009. Father contends: (1) the court should have found extenuating circumstances to extend reunification services; (2) father did not receive reasonable services; (3) there was no reasonable basis to move from unsupervised to supervised visitation or to deny placing the children with him; and (4) the court abused its discretion in terminating reunification services where father made substantial progress and was in substantial compliance with his case plan. Court shall affirm the orders.