CA Unpub Decisions

A used car dealer appeals from a judgment to challenge (1) the jurys verdicts in favor of the buyer on her causes of action for breach of contract and breach of the covenant of good faith and fair dealing, (2) the trial courts order granting the buyers motion for judgment notwithstanding the verdict overturning the jurys favorable verdicts on his cross-complaint, and (3) the courts award of attorney fees to the buyer as the prevailing party in the action. Court reverse certain aspects of the damage awards which are unsupported by substantial evidence or legally erroneous and otherwise affirm the judgment.

This is an appeal from an order awarding attorney fees to a defendant who prevailed on a special motion to strike. (Code Civ. Proc., 425.16.) Our review is for abuse of discretion. (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1426.) Court find that appellant has not shown an abuse of discretion, and affirm.

A modification decision.

E.V. filed a timely notice of appeal, and we appointed counsel to represent E.V. on appeal. On October 8, 2008, E.V.s appointed counsel filed an opening brief raising no issues. Our court then notified E.V. by letter that he could submit within 30 days any ground of appeal, argument or contention which he wished us to consider. E.V. has not responded to our letter. Court have independently reviewed the record, and are satisfied that appointed counsel has fulfilled her duty, and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436; People v. Kelly (2006) 40 Cal.4th 106.)

Mother Theresa P. and father Joseph M. appeal the termination of their parental rights with respect to D.P. and C.M. (Welf. & Inst. Code, 366.26) on the ground that the notice provisions of the Indian Child Welfare Act (25 U.S.C. 1901 et seq. (ICWA)) were not fully followed. Court agree that some provisions of ICWA were not followed properly, but find the errors to be harmless and therefore affirm.

Hitomi Blumberg, LLC[1]sued Stephen Blum and American HomeHealth, Inc. (AHH) related to the sale of shares of AHH to Blumberg LLC. Blum moved to quash service of the summons and complaint for lack of personal jurisdiction. The court found Blum had sufficient contacts with California for it to exercise jurisdiction over him because he was a director of AHH and AHH sold products to retailers which had stores in all 50 states. Court conclude Blum did not have minimum contacts with California and grant the petition for a writ of mandate directing the superior court to enter an order quashing the service of summons and complaint on Blum.

Court have done so and again conclude that the Boards decision finding Singler unsuitable for parole was not supported by the evidence presented at the time of the hearing. Thus, we will again grant his petition for writ of habeas corpus.

David D. Pebley appeals from the denial of his motion to set aside as void a post-judgment findings and order after hearing that was signed by a judge who had been disqualified under Code of Civil Procedure section 170.6, but which merely formalized a ruling previously made by another judge who had not been disqualified.
Finding no prejudicial error, Court shall affirm the order.

This case involves a dispute between neighbors over two contiguous easements that plaintiffs Kenneth Smedberg, Bonnie Smedberg (collectively the Smedbergs), Darin Smedberg, Teresa Rowan (collectively the Smedberg/Rowans), and cross-defendants Hugo Giusti and Ronald Giusti (collectively the Giustis) have over land owned by defendants Gerald and Robin Toste (collectively the Tostes).[1] The dispute came to a head after the Smedberg/Rowans planned to build a home on their property that would be accessed by a driveway they wanted to install on the easements. Gerald Toste initially acquiesced to the building of the driveway but then started interfering with construction. Litigation ensued. The result was: a preliminary injunction against the Tostes; a directed verdict against the Tostes as to their claim of adverse use of part of the Giustis easement; a jury verdict against the Tostes as to their claim of adverse possession of the remaining parts of the easements; a jury verdict against Gerald Toste for nuisance with an award of $65,000 in compensatory damages and $40,000 in punitive damages awarded to the Smedbergs; a permanent injunction against the Tostes; and a court finding of 12 counts of contempt against Gerald Toste for violating the injunction. Disagreeing with these contentions, Court affirm the judgment.

A jury convicted defendant Kenneth Knanishu of lewd and lascivious conduct upon a child under the age of 14 years (Pen. Code, 288, subd. (a)) and dissuading a witness (Pen. Code, 136. 1, subd. (b)(1)). The court sentenced defendant to a 10-year term. On appeal, defendant contends: 1) his upper term sentence for lewd and lascivious conduct upon a child violated his federal right to jury trial; 2) admission of child pornography evidence pursuant to Evidence Code section 1108 violated equal protection and due process; 3) letters related to defendants interest in child pornography were inadmissible under Evidence Code section 1101; 4) the child pornography and letters should have been excluded under Evidence Code section 352; 5) trial counsel provided ineffective assistance in failing to object to evidence that defendant possessed sexually explicit photographs of adult women; 6) admission of a pretextual call to defendant violated his right to confrontation; and 7) the prosecutor committed misconduct. Court affirm.

A jury convicted Ana M. Garibay of two counts of gross vehicular manslaughter while intoxicated (Pen. Code, 191.5, subd. (a)) and one count of hit and run with injury (Veh. Code, 20001, subd. (a)). The jury also found true allegations that Garibay fled the scene of the crime (Veh. Code, 20001, subd. (c)) and inflicted serious bodily injury in the course of committing a felony (Pen. Code, 12022.7, subd. (a), 1192.7, subd. (c)(8)). The trial court sentenced Garibay to 18 years eight months in state prison. For the reasons discussed below, we conclude that Garibay's challenge to her convictions is without merit. Court also conclude, in light of Towne, that while the abstract of judgment must be modified to reflect the appropriate disposition of the great bodily injury enhancements, resentencing is not required.

A jury convicted Marc Damon Grossi of second degree murder (Pen. Code, 187, subd. (a)) and hit and run resulting in death (Veh. Code, 20001, subds. (a) and (b)(2)). The trial court sentenced Grossi to a prison term of 15 years to life for the second degree murder conviction and a concurrent prison term of three years for the hit and run conviction. Grossi appeals, arguing the trial court violated his constitutional rights by excluding evidence of the victim's 1987 arrest for domestic violence. Court affirm the judgment.

A jury found defendant guilty as charged of the first degree murder of 20-year-old Ivan Zea Camacho and found he personally used a knife in the commission of the murder. (Pen. Code, 187, subd. (a), 12022, subd. (b)(1).) Defendant was sentenced to 26 years to life, consisting of 25 years to life for the murder plus one year for the knife enhancement.
Defendant appeals. He first claims his trial counsel rendered ineffective assistance in three essential respects, specifically, (1) in failing to move to suppress his in custody statements to investigators after he invoked his right to remain silent, (2) in failing to object to gang references during the trial, though the case did not involve any gang crime charges or enhancement allegations, and (3) in failing to object to a plethora of other inadmissible and prejudicial evidence. Second, defendant claims there is insufficient evidence to support the jurys finding that the murder was in the first degree based on a premeditation theory. Court find each of these claims without merit and affirm the judgment.

A jury convicted defendant of attempted murder (Pen. Code, 187, subd. (a), 664),[1]during which he discharged a firearm proximately causing great bodily injury ( 12022.53, subd. (d)), used a firearm ( 12022.5, subd. (a)) and inflicted great bodily injury ( 12022.7, subd. (e)). Defendant was also convicted of assault with a firearm ( 245, subd. (a)), during which he inflicted great bodily injury, and inflicting corporal injury on a cohabitant, having suffered a prior conviction of same ( 273.5, subd. (e)(1)), during which he used a firearm and inflicted great bodily injury. In bifurcated proceedings, defendant admitted having suffered a prior conviction for which he served a prison sentence ( 667.5, subd. (b)). Defendant was sentenced to 8 years plus 25 years to life and appeals claiming evidence of prior acts of domestic violence were improperly admitted and the trial court should have stricken his section 12022.5, subdivision (a) enhancement rather than stayed the term it imposed for it. Court reject his contentions and affirm, while directing the trial court to correct errors in the abstract of judgment and minutes of the sentencing hearing.