CA Unpub Decisions

This is an appeal from summary judgment granted in favor of defendant and respondent, Harry Alfier. Plaintiffs and appellants, James B. Dean and Marion Ferri Dean, contend the trial court made errors of fact and law in determining there was no merit to various causes of action concerning an easement that runs across appellants property. Court affirm the judgment.

A.V. is the mother of former dependent child, E.V. A juvenile court found that when E.V. was less than a year old he suffered severe physical abuse by appellant, or by a person known by her, and appellant knew or reasonably should have known the person was physically abusing the child. (Welf & Inst. Code, 300, subd. (e).)[1]At a dispositional hearing, the court ordered the child removed from appellants custody, awarded custody of the child to his father, the former noncustodial parent, and terminated the dependency proceedings pursuant to section 361.2. The mother appealed and this court in turn appointed appellate counsel to represent her.
Appellant contends: her trial attorney was ineffective for failing to disclose all the relevant facts; the social worker was prejudiced against her; and she should have received reunification services. Court have reviewed the appellate record as summarized below with those contentions in mind. Court conclude appellate counsels assessment is accurate. Further, appellant does not make an arguable claim that the juvenile court committed an error affecting the outcome of this case. (In re Sade C., supra, 13 Cal.4th at p. 994.) Court affirm.

A.V. is the mother of former dependent child, E.V. A juvenile court found that when E.V. was less than a year old he suffered severe physical abuse by appellant, or by a person known by her, and appellant knew or reasonably should have known the person was physically abusing the child. (Welf & Inst. Code, 300, subd. (e).)[1]At a dispositional hearing, the court ordered the child removed from appellants custody, awarded custody of the child to his father, the former noncustodial parent, and terminated the dependency proceedings pursuant to section 361.2. The mother appealed and this court in turn appointed appellate counsel to represent her.
Appellant contends: her trial attorney was ineffective for failing to disclose all the relevant facts; the social worker was prejudiced against her; and she should have received reunification services. Court have reviewed the appellate record as summarized below with those contentions in mind. Court conclude appellate counsels assessment is accurate. Further, appellant does not make an arguable claim that the juvenile court committed an error affecting the outcome of this case. (In re Sade C., supra, 13 Cal.4th at p. 994.) Court affirm.

Kathey Fyke, the respondent in a dissolution proceeding initiated by her former husband Richard Falcone in 2003, brought two separate appeals challenging various orders relating to her requests for pendente lite attorney fees, her request for a continuance of a hearing on motions to compel discovery, the appointment of a referee, her request for a new trial and her motion to vacate and enter a new judgment. Because the matters challenged are so interrelated, Court ordered them considered together for purposes of oral argument and decision.

Defendant Michael Joseph Gomez was convicted by plea of one felony count of possession of marijuana for sale (Health & Saf. Code, 11359). The court suspended imposition of sentence and placed defendant on formal probation for three years on the condition that he serve time in jail. On appeal, defendant raises a constitutional challenge to a condition of his probation that he not associate with any individuals identified as members of a criminal street gang, as identified by the probation officer Defendant also contends there is insufficient evidence to support the trial courts order that he pay $200 in attorney fees. Court modify the probation condition, strike the attorney fees order, and affirm the judgment.

A jury found appellant Mark Stephen Woolums guilty of continuous sexual abuse of N.E., a child under 14 years of age. (Pen. Code, 288.5, subd. (a).) The court declared a mistrial based on the jurys inability to reach verdicts on the remaining counts involving two other young girls, B.M. and K.A., both of whom claimed appellant sexually abused them. Two months later, appellant entered a negotiated plea of no contest to one count of lewd and lascivious conduct upon B.M., a child under 14 years of age, with the understanding that a concurrent term would be imposed. (Pen. Code, 288, subd. (a).) In exchange, the prosecution dismissed all the remaining counts. The court then sentenced appellant to the aggravated term of 16 years in state prison.
On appeal, appellant makes several claims of evidentiary error. He first claims the trial court abused its discretion in excluding evidence of N.E.s prior sexual knowledge without first holding a hearing pursuant to Evidence Code section 782. He next argues that the court erred in admitting rebuttal evidence that was improperly used by the jury as character evidence to imply propensity. Appellant also claims that his constitutional rights were violated as a result of these evidentiary rulings. Lastly, appellant claims the aggravated terms imposed by the trial court based on facts not found by a jury beyond a reasonable doubt violated his constitutional rights to a jury trial and due process under the Sixth and Fourteenth Amendments. Court affirm.

A jury awarded plaintiff Steven L. Durand $905,000 in compensatory damages after finding that defendant SSA Terminals, L.L.C. (SSAT) had breached a contract not to terminate Durands employment except for good cause. SSAT appeals from the denial of its motion for judgment notwithstanding the verdict on the breach of contract claim and that portion of the judgment in favor of Durand on that claim. Durand cross-appeals from the judgment, seeking a new trial on the ground that the trial court erred in denying his motion to amend his complaint to add a cause of action for retaliation for taking a medical or disability leave.
We conclude that the trial court did not commit prejudicial error by denying Durands motion to amend the complaint to add a cause of action for retaliation for taking a medical or disability leave. However, we agree with SSAT that as a matter of law Durand was an at-will employee who could be terminated without cause, and any extrinsic evidence of an implied agreement to the contrary cannot be given legal effect. Therefore, SSAT is entitled to dismissal of Durands breach of contract claim, which was based upon an implied employment agreement providing for termination only for cause. Accordingly, Court reverse the order denying SSATs motion for judgment notwithstanding the verdict on the breach of contract claim and the portion of the judgment in favor of Durand on that claim. In all other respects, Court affirm the judgment.

The trial court denied a general contractors motion to compel arbitration of a subcontractors claims against it, ruling that the claims were not within the scope of the arbitration clause of the parties contract. Court affirm.

Appellant S.O., a juvenile, appeals from an order of restitution imposed as part of a negotiated plea. He contends the courts victim restitution award in the amount of $3,821.35 was an abuse of discretion. Finding no abuse of discretion, Court affirm the judgment.

Based on its jurisdictional findings, the juvenile court ordered that the four minor children of appellants J.L., Sr. (father) and K.L. (mother) be removed from their home and placed in foster care. (Welf. & Inst. Code,[1] 361.) Each parent appeals. For his part, father contends that (1) there is insufficient evidence to support the underlying jurisdictional findings; (2) the juvenile court erred in denying him reunification services; (3) it improperly delegated its visitation authority to the childrens therapist; (4) and it erred by failing to order sibling visitation. ( 300, subds. (b), (d), 361.5, subd. (b), 362.1.) In her appeal, mother challenges (5) the sufficiency of evidence supporting removal of the children from her home. Court affirm the juvenile courts jurisdictional order, but reverse the dispositional order.

This case appears before us yet again following the latest in a series of remands for resentencing. In this appeal defendant complains that the trial court erred by considering his non-pedophile diagnosis as an aggravating rather than mitigating factor, and declined to consider other mitigating factors. Court find that no sentencing error occurred and affirm the judgment.

On October 30, 2008, the Humboldt CountySuperior Court, Juvenile Division, entered an order that terminated reunification services for B.S. (Mother) and set a hearing under Welfare and Institutions Code section 366.26[1] to select a permanent plan for the minor, K.R. (born September 2003). Mother challenges this order by petition for extraordinary writ, claiming the juvenile court erred in making certain findings. As discussed below, Court conclude there is substantial evidence to support the contested findings, and deny Mothers petition on the merits.

In this contract action, the trial court declared a mistrial during a jury trial when plaintiff BCX International, Inc., U.S.A. (BCX), a Massachusetts corporation, revealed that it was not registered to transact intrastate business in California. The trial court denied defendant Merv Yorks motion to dismiss for lack of capacity and instead stayed the action to permit BCX to obtain a certificate of qualification. The court also ordered BCX to pay York over $118,000 in attorneys fees and costs as sanctions under Code of Civil Procedure section 128.7, subdivision (b)(1) for bringing the action for an improper purpose.
BCX appeals from the portion of the trial courts order regarding corporate status and plaintiffs payment of defendants fees and costs which required BCX to pay York sanctions. BCX contends the trial court erred in granting a mistrial rather than continuing with the jury trial, erred in imposing the burden of proof regarding BCXs capacity to sue on BCX, abused its discretion in imposing sanctions in the amount of $118,584.95 on BCX, and exhibited racial prejudice in its ruling and reasoning. Court disagree and affirm.

Plaintiff Arthur Auerbach appeals from an order of dismissal entered after the trial court sustained demurrers, without leave to amend, of defendants Transamerica Occidental Life Insurance Company (Transamerica), Larry M. Halpern, and New Insurance Marketing, Inc. (NIMI) to Auerbachs complaint for negligent misrepresentation and intentional misrepresentation. We conclude that the trial court correctly sustained the demurrers without leave to amend. On appeal Auerbach proposed to amend the complaint by alleging that when purchasing two $500,000 Transamerica life insurance policies, he was told that the policies were vanishing premium policies and that he would pay five annual premiums of $5,020 and thereafter would pay no further premiums. The policies contained provisions which contradicted these representations and stated that he was required to pay premiums after the fifth policy year to keep the policy in force. These policy provisions put Auerbach on notice of defendant Halperns alleged misrepresentations, and thus his cause of action accrued, and the statutory limitations period commenced, when the policy was issued. Because Auerbach filed his complaint after the statutory limitations period had ended, his complaint was untimely. We further conclude that the trial court correctly denied leave for Auerbach to amend his complaint. Court affirm the order of dismissal.