CA Unpub Decisions

Defendants and respondents Ronald A. Litz and the Law Offices of Ronald A. Litz, on behalf of defendant and respondent Angela Garber, filed a personal injury action for assault, battery, sexual battery, and intentional infliction of emotional distress against plaintiff and appellant Francis Shivers (Garber v. Shivers).[1] Respondents dismissed Garber v. Shivers without prejudice. Appellant thereafter brought this action for malicious prosecution and intentional infliction of emotional distress against respondents (the underlying action). The trial court granted respondents anti SLAPP motion to strike the complaint in the underlying action. (Code Civ. Proc., 425.16.) Appellant appeals from that order, contending that the trial court erred in finding he was not likely to prevail on the merits of his claims in the underlying action. Court affirm.

Appellant Growth Resource Group, Inc. (GRG) makes small, short-term consumer loans, using borrowers vehicles as collateral. An investigation in 1997 by respondent, the California Corporations Commissioner, revealed GRG was engaged in illegal loan practices. Among other things, GRG had added excessive administrative fees and premiums for collateral insurance to the principal of numerous loans, causing them to exceed $2,500, which allowed GRG to charge interest above the statutorily regulated rate for loans under $2,500. For those loans, even after the insurance GRG placed was cancelled, thereby reducing the principal of a loan to the regulated interest rate, GRG had failed to recalculate the loan to reduce the interest rate. The Commissioner demanded GRG recalculate the loan principal, issue refunds to affected borrowers, and report back to the Commissioner or face administrative discipline. GRG failed to comply with the agreement and the Commissioner filed an administrative action to enforce the agreement and revoke GRGs licenses. An administrative law judge agreed GRG breached the settlement agreement and the Commissioner imposed discipline. GRG filed a petition seeking a writ of mandate (Code Civ. Proc., 1094.5) to overturn the administrative decision. The trial court found no merit in GRGs contentions, and denied the petition, and GRG appealed. Court affirm.

R.M. (mother) and her daughter, B., both appeal from the October 10, 2007 order denying mothers Welfare and Institutions Code section 388 petition seeking orders (1) terminating a legal guardianship over B. and (2) returning B. to mothers custody. Court affirm the order.

Joe Hay appeals following his plea of no contest to a violation of Health and Safety Code section 11351.5, possession for sale of cocaine base in case No. BA308550. Appellant admitted being in violation of the terms and conditions of probation in case No. BA291832. The trial court sentenced appellant to the high term of five years in accordance with appellants plea agreement.

After jurisdictional and dispositional hearings, the juvenile court removed S.V. (minor) from the custody of O.L. (mother) and granted mother monitored visitation. Mother appeals. According to mother, the juvenile court lack subject matter jurisdiction to enter permanent custody orders pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (Act) (Fam. Code, 3400 et seq.) because the minor was in California on vacation, her home state is Texas, and Texas never declined jurisdiction on the grounds that California is a more convenient forum. In mothers view, the juvenile court, at most, had temporary emergency jurisdiction.
Court find no error and affirm.

Blue Water Sunset, LLC (Blue Water) appeals the judgment of dismissal in favor of respondents Four Star General Properties, LLC (Four Star) and Douglas Kramer (Kramer)[1]after a demurrer to Blue Waters twelfth and thirteenth causes of action was sustained without leave to amend. According to the trial court, Blue Waters claims are derivative in nature and it did not and could not plead satisfaction of the pleading requirements for derivative actions in Corporations Code section 800, subdivision (b). Court find no error and affirm.

A jury convicted appellants Ricky Rivera (Rivera) and Luis Avalos (Avalos) of shooting at an occupied building (Pen. Code, 246)[1](count 1), assault by means of assault weapon on John Doe ( 245, subd. (a)(3)) (count 2), assault with a firearm on Lonnie Hunter (Hunter) ( 245, subd. (a)(2)) (count 3), shooting at an uninhabited dwelling ( 247, subd. (b)) (count 6), and willful, deliberate, and premeditated attempted murder of Lonnie Hunter ( 664, 187, subd. (a)) (count 7). Avalos was also convicted of evading an officer with willful disregard (Veh. Code, 2800.2, subd. (a)) (count 5). Avalos appeals on the grounds that: (1) there was insufficient evidence to support his conviction in counts 3 and 7, (2) there was insufficient evidence to support his conviction in count 2, and (3) the trial courts imposition of a term of 15 years to life in count 7 was unlawful. Avalos also joins in Riveras contentions where they are applicable to him under California Rules of Court, rule 8.200. The judgments of appellants Avalos and Rivera are modified to amend their sentences in count 7 to life in prison with the possibility of parole. Riveras judgment is also modified to strike the enhancements under section 667.5, subdivision (b). In all other respects the judgments are affirmed.

Defendant Thomas Morgon appeals his conviction of 14 counts of forgery (Pen. Code, 470, subd. (d)), two counts of possession of a forged check (Pen. Code, 475, subds. (c), (d)), and one count of burglary (Pen. Code, 459.)[1] He contends the trial court erred in (1) failing to grant his motion for judgment of acquittal; (2) failing to conduct a hearing on his Marsden motion; and (3) denying him probation. Court affirm.

In September 2005, Donte Brown shot Linda Johnson and Vicky Washington. In March 2006, a jury convicted Brown of the attempted murder of Johnson (count 1), the attempted murder of Washington (count 2), assault with a firearm on Johnson (count 3), assault with a firearm on Washington (count 4), and criminal threats against Johnson (count 5). On a prior appeal, Court reversed Browns conviction for the attempted murder of Washington (count 2), agreeing with Brown that the trial courts zone of harm instructions related to the count were infected with prejudicial error. Court affirmed the judgment in all other respects. (People v. Brown (Aug. 22, 2007, B190880, modified on denial of rehearing Sept. 20, 2007) [nonpub. opn.].) The judgment is affirmed.

A jury convicted defendant and appellant Lucio Gonzalez of, among other things, two counts of burglary based on his entry, first, into the victims garage and, second, into the victims house. On appeal, defendant contends that he made a single entry; hence, he can be convicted of only one count of burglary. He also contends that his upper term sentences violate Cunningham v. California (2007) 549 U.S. 270 (Cunningham). Court disagree with these contentions and affirm the judgment.

George A., the father of minor G.A., appeals from jurisdictional and dispositional orders entered after hearing. Finding no basis for a claim of error, Court affirm.

D.J. (father) appeals from the juvenile courts jurisdictional and dispositional orders establishing dependency jurisdiction over K.J. (born 12/96) and his three younger siblings: I.J. (born 8/98), E.J. (born 3/01), and S.J. (born 1/07). The juvenile court denied father reunification services. Father argues: (1) the juvenile dependency petition failed to state a basis for jurisdiction; (2) insufficient evidence supported the courts jurisdictional findings; and (3) the juvenile court abused its discretion by denying him reunification services. Court affirm.

Marcos Astudillo appeals the judgment entered after a jury convicted him of the second degree murder of Maria Aguirre-Cana Lopez (Pen. Code, 187/189). The jury also found true allegations that Astudillo personally used and discharged a firearm in committing the offense (Pen. Code, 12022.53, subds. (b), (d)). The trial court sentenced him to a total term of 40 years to life state prison, consisting of 15 years for the murder plus a consecutive 25 years to life for the firearm use allegations. The judgment is affirmed.

Michael Anthony Harsha appeals the judgment following his entry to a guilty plea of carrying a concealed knife on his person and his admission that he had three prior strike convictions and had served three prior prison terms (Pen. Code, 12020, subd. (a)(4), 667, subds. (c) & (e), 667.5, subd. (b)). The trial court sentenced him to two years eight months state prison, consisting of the low term of 16 months doubled for one of the strike priors. The remaining strike priors and prison term enhancements were stricken in the interest of justice. He was awarded 45 days presentence custody credit.
The judgment is affirmed.