CA Unpub Decisions

Samantha W. appeals orders declaring her minor son, Vernon W., a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (a) and removing him from her custody under section 361, subdivision (c)(1). Samantha challenges the sufficiency of the evidence to support the courts dispositional findings. She also argues the court abused its discretion by denying her request for unsupervised visits with Vernon. Court affirm the orders.

Plaintiff and Appellant Frederic Elton Stearn (Appellant) appeals from a judgment of dismissal entered after the trial court sustained the demurrer of real party in interest and respondent General Outdoor Advertising (Outdoor) to Appellants first amended complaint and petition (Complaint and Petition). Appellant challenged the Board of Supervisors of San Bernardino County (Board or County) approval of 14 conditional use permits sought by Outdoor to erect billboards in desert areas along Interstates 15 and 40. Appellant also challenged the Boards rezoning of the corresponding parcels of land to commercial and business uses, which rezoning Appellant alleged was done for the sole purpose of allowing the County to permit Outdoor to erect the billboards, in violation of state and federal law.
The judgment of dismissal as to the fourth cause of action for administrative mandamus is reversed. Appellant shall recover his costs on appeal.

Plaintiff, a workman, allegedly sustained injuries resulting from stepping on plywood lying on the concrete floor at a construction site owned by the San Bernardino Community College District. The plywood, which had been placed on the floor to protect it, had warped, and defendant was hired to replace the plywood throughout the building. The condition of the wood was a hazard known to defendant who had at a time previous to the accident notified other workers that the condition of the plywood created a potential hazard of injury to workers who traversed it in the course of their work.
Court grant the motion as requested.

Plaintiff and appellant Humberto Perez (Perez) challenges the trial courts ruling granting the motion of defendant and respondent Peggy Sue Smith (Smith) to set aside a default and default judgment under Code of Civil Procedure section 473 for excusable neglect. Specifically, Perez argues the court abused its discretion when it found that Smith acted reasonably when she relied on the assurances of her ex-husband, and co-owner of the property in question, that he had hired an attorney and would defend the lawsuit on behalf of them both. As discussed below, Court conclude that the trial court did not abuse its discretion when it granted Smiths motion.

Appellant Danise Marie McFadden was charged with gross vehicular manslaughter, a violation of Penal Code[1]section 192, subdivision (c)(1). She was convicted of the lesser-included offense of misdemeanor vehicular manslaughter. ( 192, subd. (c)(2).) McFadden was sentenced to 90 days in jail, 250 hours of community service, and four years of formal probation. The judgment is affirmed.

A jury convicted appellant Amado Amaya, Jr., of attempted murder and assault with a firearm. He challenges the convictions here because (1) the evidence was insufficient to sustain his attempted murder conviction; (2) the trial court erred in admitting evidence of other crimes; (3) he received ineffective assistance of counsel; and (4) the prosecutor committed prejudicial misconduct. The People note that the abstract of judgment does not accurately reflect the sentence imposed by the trial court. Court disagree with Amayas contentions and will affirm the judgment, with directions to the trial court to prepare a corrected abstract of judgment.

Petitioners J.W. and M.W. were the foster parents as well as the prospective adoptive parents of a dependent child for virtually all of his life until the foster family agency which had certified petitioners as foster parents decertified them over allegations of child abuse. In turn, real party in interest Fresno County Department of Children and Family Services (department) removed the child from the petitioners care. Petitioners objected and after a contested hearing respondent Fresno County Superior Court found the removal was in the childs best interest. Petitioners urge us to grant them extraordinary writ relief (Welf. & Inst. Code, 366.28) by directing the superior court to return the child to their care. They claim that as the childs prospective adoptive parents they were not required to be certified or licensed as foster parents. On review, Court disagree and will deny their petition.

A modification decision.

Margaret Nelson appeals from the judgment entered against her in her lawsuit against the County of Orange (the County). She contends the court erred in rejecting her peremptory challenge of the trial judge as well as her motion to disqualify the individual trial judge, and indeed the entire Orange County Superior Court bench, for cause. However, sole remedy for such errors, if that is what they were, was to file a petition for writ of mandate pursuant to Code of Civil Procedure section 170.3. The argument is simply not cognizable on appeal from the ensuing judgment.
Nelson also asserts the judgment must be reversed because the jurys answer to one of the special verdict questions which supported its rejection of her claim for damages caused by a hostile work environment was joined in by only eight jurors. While she is correct that a verdict concurred in by only eight of twelve jurors is insufficient to support a civil verdict, we agree with the trial courts assessment that the error was immaterial in this case. Despite the fact that only eight jurors agreed on the challenged question, the jurys responses to the other questions posed in the special verdict were independently sufficient to support its rejection of her claim. The judgment is affirmed.

A modification decision.

Appellant Juan Carlos Gutierrez challenges his murder, robbery and attempted robbery convictions on the grounds the trial court committed numerous instructional errors, violated due process by imposing upper and consecutive terms on the basis of facts not found by the jury or admitted by him, and improperly imposed a gang enhancement. We conclude the trial court made several errors in relation to the aiding and abetting and accomplice instructions. However, the errors were harmless under the circumstances. The court also erred harmlessly by failing to instruct the jury upon the requirements for finding that a principal used or discharged a firearm for purposes of a Penal Code section 12022.53 enhancement. Moreover, the imposition of upper and consecutive terms did not violate due process. Finally, the trial court improperly enhanced appellants sentence under Penal Code section 186.22.

Plaintiffs Lorena Rojas and Roberto Villapando appeal from the judgment following trial of their claims involving the refusal of defendant Gateway Management Services, Inc. to pay to repair or replace the transmission in a car Rojas bought from defendants Edgar Akopyan and Akopyan Trading Company, Inc. doing business as CARS4U (collectively Akopyan). Defendants Gateway Management Services, Inc., Edgar Akopyan, and Akopyan Trading Company cross appeal. Court affirm.

Plaintiff Claire Levine appeals from the summary judgment entered for defendants Cynthia Bleifer, Ira Friedman, and the law firm Friedman & Friedman in this action for legal malpractice. Court affirm.

Carnot Andre Lyles appeals from an order recommitting him for an indeterminate term to the custody of the State Department of Mental Health (DMH), after a jury found him to be a sexually violent predator (SVP) within the meaning of Welfare and Institutions Code section 6600, subdivision (a)[1]of the Sexually Violent Predator Act (SVPA). Appellant contends that (1) the trial court erred in denying his motions to dismiss the petition for recommitment, (2) the trial court erred in limiting the number of peremptory challenges, (3) the trial court improperly denied appellants challenges to jurors for cause, (4) the trial court erred in allowing the victim of appellants 1988 sexual assault to testify, (5) introduction of that victims testimony was prosecutorial misconduct, (6) the evidence was insufficient to support the jurys finding that appellant was an SVP, (7) the trial court erred in applying the SVPA as revised in 2006[2]retroactively to appellants case, (8) appellants indeterminate commitment under the revised SVPA violates (a) the ex post facto clause, (b) due process, by placing the burden on him to prove that he should be released, (c) due process, by failing to provide mandatory periodic hearings to determine whether continued commitment is warranted, (d) the double jeopardy clause of the Fifth Amendment, (e) the equal protection clause of the Fourteenth Amendment, by providing limited periodic judicial review of his custodial status as compared with other civil commitment statutes, and (f) the prohibition against cruel and unusual punishment under the California Constitution and the Eighth and Fourteenth Amendments to the federal Constitution, (9) the limitations placed by the revised SVPA on the right to petition the court for release violates the First Amendment right to petition the government for redress of grievances, (10) Proposition 83 violates the single subject rule applicable to ballot initiatives, and (11) the cumulative effect of the errors was prejudicial to appellant and requires reversal of the commitment and imposition of a two year commitment and subsequent dismissal. Court affirm.