CA Unpub Decisions

The question here is whether the insurance policies at issue violate the well established rule that an exclusion clause . . . cannot be upheld unless the clause is phrased in clear and unmistakable language. (CaliforniaState Auto. Assn. Inter-Ins. Bureau v. Warwick (1976) 17 Cal.3d 190, 194 (Warwick).) We conclude they do not. Accordingly, we affirm the trial courts grant of summary judgment in favor of plaintiff and respondent State Farm Mutual Automobile Insurance Company (State Farm) on its complaint for declaratory relief against defendants and appellants Susan Ranft and her minor children, Sophia and Jordan Ranft (jointly the Ranfts).

A protective sweep is a limited warrantless entry into a residence by law enforcement officers that is permissible if the officers have a reasonable belief that someone in the building poses a danger to their safety. The law governing such entries comes from Maryland v. Buie (1990) 494 U.S. 325 (Buie), and People v. Celis (2004) 33 Cal.4th 667 (Celis). Here, the trial court concluded that after a burglary suspect left his house in response to a demand by police officers and was then handcuffed, those officers were not authorized to enter and conduct a protective sweep of the suspects residence because of an abstract belief that someone may have remained behind in the residence and might gain access to a weapon believed to be within the residence. Exercising our independent review, we agree with the trial courts decision that the predicate for a protective sweepthe reasonable suspicion that someone was still inside the house and constituted a clear and present dangerwas not shown. Court therefore affirm the subsequent order dismissing the charges against the suspect because all evidence supporting those charges was obtained due to the improper entry and search.

S.B., the mother of C.M., appeals from the denial of her Welfare and Institutions Code section 388 petition for modification and termination of her parental rights. Our review of these juvenile dependency orders is limited in scope. Court consider whether the trial court abused its discretion when it denied Mothers request for additional reunification services and terminated her parental rights. Court conclude it did not, and, accordingly, affirm.

A jury convicted appellant Travis Terrell Smith of false imprisonment (count one) and assault with a firearm (count three), and found true a firearm use allegation.[1] The court sentenced appellant to an aggregate term of five years in state prison: the lower term of two years for false imprisonment, a concurrent eight-month term for the assault charge, and three years for the firearm enhancement. On appeal, appellant challenges the trial courts instruction on consciousness of guilt based on a pretrial falsehood (CALJIC No. 2.03) and urges that the false imprisonment sentence should be stayed and the abstract of judgment should be corrected. Court agree that the abstract must be corrected and in all other respects affirm the judgment.

Lawrence Clayton Jelks appeals from a judgment entered after the trial court revoked his probation. He contends the courts ruling is not supported by adequate evidence. Court disagree and will affirm.

Kenneth Scott Moeller appeals following his unsuccessful challenge to a charged violation of probation. Counsel has briefed no issues and asks for our review of the record of the proceedings. (People v. Wende(1979) 25 Cal.3d 436.) Moeller has not filed a supplemental brief. Court have reviewed the record and affirm.

This is an appeal from the dispositional order in a juvenile matter in which appellant L.M., a minor, entered a no contest plea to felony charges of battery causing serious bodily injury and grand theft. Appellant was thereafter committed to a juvenile facility for a 9 month mandatory program and ordered to serve an additional 90 day conditional release/parole period. Appellant contends the juvenile courts decision with respect to his commitment was an abuse of discretion. Court affirm.

D.H. (Father) appeals from an order of the juvenile court terminating his parental rights to his daughter, X.H. (Minor), in a proceeding subject to the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. 1901 et seq.) Father contends the judgment must be reversed because the juvenile court based its decision on the testimony of individuals who were not qualified expert witnesses as that term is defined in Welfare and Institutions Code section 224.6, subdivision (a) (hereafter section 224.6(a)). Although it is undisputed that the juvenile court failed to comply with section 224.6(a), Court conclude Father can show no prejudice resulting from the violation, and therefore hold the error was harmless. Accordingly, Court affirm the judgment.

Appellant John Poland pleaded no contest to driving under the influence (DUI) (Veh. Code,[1] 23152, subd. (a)) and admitted a special allegation that he suffered a prior felony conviction for an alcohol-related Vehicle Code offense ( 23550.5, subd. (a)(2)). On appeal, he contends the trial court erred by denying his preplea motion to strike the special allegation in light of the reduction of his prior conviction to a misdemeanor pursuant to Penal Code section 17, subdivision (b)(3), following the filing of the information in this case. Because Polands plea necessarily admitted all matters essential to the conviction, his contention is not cognizable on appeal. Accordingly, Court dismiss the appeal.

Appellant Carl M., the father of the dependent child, A.M., appeals from the juvenile courts order terminating his parental rights and selecting adoption as the permanent plan for the child. (Welf. & Inst. Code, 366.26.)[1] The sole issue raised on appeal is whether the Contra Costa County Children and Family Services Bureau (the Bureau) failed to comply with the notice provisions of the Indian Child Welfare Act (25 U.S.C. 1901 et seq., hereafter the ICWA). Appellant argues that although his child was reportedly eligible for membership in the Blackfeet, Navajo, or Apache tribes, the Agency mailed notices only to the Blackfeet and Navajo tribes. No notice was sent to any of the Apache tribes. The Bureau concedes that the failure to notice the Apache tribes was error. Court therefore remand the matter to the juvenile court for the limited purpose of noticing the Apache tribes and thereby achieving ICWA compliance.

Defendant Edgardo Antonio Cuellar was convicted by a jury of one count of possessing cocaine. Imposition of sentence was suspended; he was placed on three months probation and ordered to undergo treatment under Proposition 36. Defendants attorney has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting our independent review of the record. Court find no arguable issue and shall affirm.

Defendant Amelia Ramirez (defendant) was arraigned on charges of violating Penal Code section 182, subdivision (a)(1) (conspiracy) and Health and Safety Code section 11351 (possession of narcotics for sale).[1] She pled guilty to a violation of Health and Safety Code section 11351 and posted bail in the amount of $40,000 to secure her presence at the sentencing hearing. Appellant and real party in interest, Lincoln General Insurance Company (Lincoln) supplied the funds for the bond. Defendant failed to appear at the June 23, 2006 sentencing hearing. The court declared the bond forfeited and mailed notice of forfeiture on July 17, 2006. The trial court denied the motion, finding that the declaration was insufficient to establish good cause, noting on the record that Lincoln was no closer to finding defendant than it had been at the beginning of the period, and that the investigator had done little besides stake[] [the indemnitor] out one time and le[ave] a card.

Plaintiffs Constance Tovar and Victoria Gacitua sued their former employer, defendant Bank of America, N.A. (bank), for wrongful termination, breach of implied contract not to terminate without good cause, and age-based harassment in violation of the Fair Employment and Housing Act (Gov. Code, 12940, subd. (j)(1)) (FEHA).[1] After the trial court entered a directed verdict for the bank on the wrongful termination and breach of implied contract claims, the jury found for plaintiffs on the harassment claim. The trial court entered judgment for plaintiffs based on the jury verdict. It denied the banks motion for judgment notwithstanding the verdict, but granted the banks motion for new trial. Both sides have appealed. Court conclude that the evidence is legally insufficient to establish liability under any theory of the complaint. Accordingly, we affirm the directed verdict, reverse the order denying the motion for judgment notwithstanding the verdict, vacate the new trial order as moot, and remand with directions to enter judgment for the bank on all claims.

In this action on a cross-complaint for breach of an indemnity agreement, we conclude that the indemnitor had no duty to defend the indemnitee in the underlying personal injury action. The judgment on the cross complaint is reversed.