CA Unpub Decisions

Aerospace Dynamics International, Inc. (ADI) contracted with Frize Corporation (Frize) to paint a building. Frize subcontracted the work to J. C. French. Edwin Limber Mendoza, Jr., an employee of J. C. French, sustained injuries while on the painting job and sued ADI and Frize. ADI settled with Mendoza, Jr. in his personal injury action by waiving the issue of liability and referring the damages question to a retired judge. After a trial, the referee found that Mendoza, Jr. had sustained $2.7 million in damages. ADI assigned its indemnity claim against Frize to Mendoza, Jr. and made a refundable cash payment of $350,000 to him in exchange for a covenant not to execute on any sums above that amount. In its appeal, ADI contends that the trial court erred in declining to accord conclusive effect to Mendoza, Jr.s settlement amount and in limiting ADIs recovery to the amount it actually paid in its settlement with Mendoza, Jr. In its cross-appeal, Frize challenges the trial courts ruling that Frize was required to indemnify ADI at all. For the reasons set forth below, Court affirm the judgment in its entirety.

Clarence Ray Beauford appeals from the judgment following his conviction of resisting a police officer (Pen. Code, 69);[1]possession of a firearm by a felon ( 12021, subd. (a)(1)); vandalism ( 594, subd. (a)); and three counts of making criminal threats. Appellant challenges the sufficiency of the evidence to support his criminal threat convictions and asks this court for an independent review of the trial court's in camera hearing on his motion for discovery. (Pitchess v. Superior Court (1974) 11 Cal.3d 531.) Court affirm.

Thomas E. Patrick filed a malicious prosecution action against Michael P. Rubin. The trial court sustained Rubins demurrer on the basis that Patrick had not shown that the underlying action resulted in a favorable termination, and denied leave to amend. Patrick appeals. Court affirm the trial courts sustaining of Rubins demurrer but reverse its denial of leave to amend.

Willie Ware appeals from his convictions on one count of possessing cocaine and one count of selling cocaine. Ware contends that (1) the prosecution impermissibly used a peremptory challenge to strike a prospective juror on racial grounds, and (2) the admission of evidence relating to laboratory reports (including the reports themselves) that were prepared by a criminalist who did not testify violated Wares rights under the Confrontation Clause. Court disagree with both contentions and affirm.

Plaintiff Goldic Technology, Inc. sued its business competitor, defendant Maxmile Corporation and Maxmiles president Roger Hwang (together, Maxmile) for, among other causes of action, breach of a settlement agreement. Goldic contends Maxmile violated the agreements prohibition against communications that defame, libel, slander or degrade Goldics products in a flyer containing true but unflattering statements about Goldics product. In a bifurcated trial on liability, specifically, on the meaning of the word degrade as used in the settlement agreement, the trial court rejected Goldics argument that true statements could breach the agreement and ruled for Maxmile. Goldic appeals, contending that the trial courts interpretation was erroneous and that Goldic was denied its right to a jury trial on the factual issue of whether Maxmiles statements constituted a breach of the settlement agreement. Court reject these contentions and affirm the judgment.

The jury found defendant Michael Kejuan Smith guilty of two weapons-related offensescarrying a loaded firearm in violation of Penal Code section 12031, subdivision (a)(1),[1]specially finding he was not the weapons registered owner ( 12031, subd. (a)(2)(F)), and felon in possession of a firearm ( 12021, subd. (a)(1)). In a separate trial, the jury found defendant suffered a prior serious or violent felony conviction under the three strikes law ( 667, subds.(b)-(i), 1170.12, subds. (a)-(d)) for federal armed bank robbery (18 U.S.C. 2113(a)-(d)) with the further finding defendant used a firearm in committing the offense (18 U.S.C. 924(c)). Defendant received the upper term sentence of three years in state prison for the section 12031 offense, which was doubled under the three strikes law. The court stayed imposition of an identical concurrent sentence under section 654. In his timely appeal, defendant contends the evidence of his federal bank robbery conviction is legally insufficient to support a finding of a serious or violent felony under California law, and the trial court violated his Sixth Amendment jury trial right by imposing the upper term for his convictions without a jury finding on the aggravating factors pursuant to Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296, 301 (Blakely). Court disagree and affirm.

Fredrick Aaron Merritt, also known as Fredrick Merritt, appeals from a judgment entered upon his conviction of being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1))[1]upon a negotiated plea of no contest, after his motion to suppress evidence pursuant to section 1538.5 was denied. Defendant admitted having suffered a prior felony strike within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d), and a prior prison term within the meaning of section 667.5, subdivision (b). Pursuant to the plea agreement, the trial court sentenced defendant to an aggregate state prison term of three years and eight months. Defendant contends that the trial court erred in denying his motion to suppress evidence because the warrantless search of his home and seizure of a rifle and ammunition from his bedroom violated his Fourth and Fourteenth Amendment rights. Court affirm.

R.E. (Father), the father of minors M.E. and R.E., appeals from the juvenile court orders sustaining a petition under Welfare and Institutions Code section 300, subdivisions (b) and (g). Because his minor children M.E. and R.E. were subject to substantial risk from Fathers domestic abuse of Mother, and because Father was in state prison at the time of the hearing for domestic abuse of another woman, Court affirm the orders of the juvenile court.

Plaintiffs Artour Hagopian, Diran Maloumian, and A.D. Truck Parking & Fuel LLC appeal from that portion of a judgment in favor of defendants Raymond Barron, Arrow Fuel Service, Inc., and the Barron Family Limited Partnership. On appeal, plaintiffs contend: 1) the terms of the parties contract were sufficiently certain to order specific performance; 2) the trial court erred by admitting expert testimony to interpret the contract; 3) Barrons contracting method was an unfair business practice; and 4) Hagopian and Maloumian were prevailing parties, because restitution of $25,000 was a net monetary recovery. We conclude the trial court did not abuse its discretion by denying specific performance, the admission of expert testimony did not cause any prejudice to plaintiffs, substantial evidence supports the trial courts finding that Barron did not commit an unfair business practice, and Hagopian and Maloumian were not the prevailing parties.
Defendants Raymond Barron, Arrow Fuel Service, Inc., and the Barron Family Limited Partnership appeal from the portion of the judgment ordering restitution of a $25,000 deposit to plaintiffs, with interest. We conclude there is no evidence to support the trial courts finding that defendants tender of plaintiffs deposit prior to the instant action was conditional. Therefore, the judgment must be modified to provide for replacement of the check, without prejudgment interest. As modified, Court affirm.

Plaintiff and appellant subcontractor Burns Pacific Construction, Inc. appeals from a judgment confirming an arbitration award. Defendant and respondent contractor Modern Alloys, Inc. withheld payment from Burns and pursued arbitration of a billing dispute. The arbitrator found Modern was not entitled to payment from Burns. On appeal, Burns contends statutory prompt payment penalties should have been assessed against Modern under Public Contract Code section 10262.5, because Moderns reasons for withholding payment did not constitute a good faith dispute over the amount due on a progress payment. Court hold there is substantial evidence to support the arbitrators finding that Moderns claims were a good faith dispute over the amount due on a progress payment, and therefore Court affirm.

Defendant, Steve Esteves, appeals his second degree robbery conviction. (Pen. Code, 211.) Defendant argues the trial court improperly instructed the jury on admissions and failed to instruct on theft as a lesser included offense. Court affirm.

In this dependency case (Welf. & Inst. Code, 300 et seq.), C. M., the maternal grandmother of the minor child M. V. (Maternal Grandmother and M., respectively), appeals from a disposition order. Maternal Grandmother asserts the minor should be placed in long term foster care rather than adopted. She also contends her visits with the minor should not have to be monitored.
Maternal Grandmothers first contention is premature. There has been no decision regarding a permanent plan for M. The case is still in the reunification stage. Maternal Grandmothers second contention is without factual basis. The record does not indicate that her visits were ordered to be monitored, nor that she requested that her visits be unmonitored. Further, she herself has had a child in the dependency system (M.s mother), because of abuse and/or neglect, and thus monitored visits between herself and M. would not be unwarranted. She also appears to be objecting to the minor being placed with his paternal aunt. However, there is no indication in the record that such a placement has been made. Therefore, because none of the issues raised by the Maternal Grandmother has merit, the order from which Maternal Grandmother has appealed will be affirmed.

Defendant Wallace Earl Rogers appeals from the trial courts order extending his commitment under the Sexual Predator Punishment and Control Act: Jessicas Law (SPPCA). (Welf. & Inst. Code, 6600, et seq.) Effective November 8, 2006, the Sexually Violent Predators Act (SVPA) was amended by Proposition 83, The Sexual Predator Punishment and Control Act: Jessicas Law. (Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006).)
Defendant contends the determination that he is a sexually violent predator was made in violation of a prior plea agreement. Court affirm the judgment.

In July 1999, in case No. CRF99-4799, defendant James Douglas Sisemore grabbed J.S., his wife, by the hair, made a fist and threatened to kill her. He pinned her down on a bed and covered her face with a pillow. At one point, he grabbed her underwear and caused an abrasion to her hip. Eventually, he penetrated her with his fingers. Later he kicked her hip, causing her to fall backward and hit her back on a toilet tank and her head on the wall. He put his hands around her neck, threatening to kill her. She had redness to her neck, a bruise on her back, and abrasions to her hip area. In January 2000, defendant pleaded no contest to infliction of corporal injury on a spouse. (Pen. Code, 273.5, subd. (a).) In exchange, two related counts were dismissed. He also admitted a misdemeanor violation of that same offense in an unrelated case. (Case No. 99005890.) In exchange, another unrelated case was dismissed. (Case No. 99005891.) Defendant was placed on probation for three years.