CA Unpub Decisions

Petitioner C.H. (Mother) is the mother of six-year-old J.S. Mother filed this writ petition pursuant to California Rules of Court, rule 8.452, challenging an order setting a Welfare and Institutions Code section 366.26 permanency planning hearing as to the child. Mother contends that the juvenile court erred in denying her request to continue services beyond the 18 month statutory period and denying a continuance. For the reasons provided below, Court reject Mothers challenge and deny her petition.

Defendant Jose Ignacio Hernandez was convicted by jury trial of child molestation and failure to register as a sex offender. On appeal, he contends (1) his jury trial was barred by the guarantee against double jeopardy; (2) the trial court erred by refusing to strike his prior conviction; (3) the trial court erred when it ruled that the abstract of judgment and other documents supporting his prior conviction (the 969b package) could be reconstructed because there was no substantial evidence the proffered documents were identical copies of the lost originals; (4) insufficient evidence supported the trial courts finding that defendant suffered the prior conviction; (5) the trial court erred by allowing witnesses to testify about the details of a fresh complaint; (6) the trial court improperly instructed the jury regarding the fresh complaint evidence; (7) the trial court erred when it allowed the nurse examiner to testify regarding the victims statements and whether the victims injuries were consistent with those statements; (8) the prosecutor committed misconduct during argument; (9) the trial court committed Cunningham error when it imposed the upper term; and (10) the trial court erred by relying on an improper aggravating factor to impose the upper term. Finding no merit in these contentions, Court affirm the judgment.

A jury convicted appellant Richard Vestal of first degree burglary (Pen. Code, 459, 460 subd. (a)), and in a separate proceeding, the court found true an enhancement allegation that appellant had served a prison term for a prior felony conviction (Pen. Code, 667.5, subd. (b)). The court imposed a prison term of seven years, consisting of the six-year upper term on the substantive offense and one year on the enhancement. Appellants sole contention on appeal is that a readback of testimony to the jury out of his and his attorneys presence violated his right to due process of law under the Fourteenth Amendment to the United States Constitution. Court will affirm

A jury convicted appellant Michael Voravong of three felonies, viz. possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1);[1]count 1), carrying a firearm concealed on his person ( 12025, subd. (a)(2); count 2) and carrying a loaded firearm ( 12031, subd. (a)(1); count 3); and one misdemeanor, resisting, obstructing or delaying a peace officer ( 148, subd. (a)(1)). Appellant admitted allegations that he had suffered a strike[2]and that he had served three separate prison terms for prior felony convictions ( 667.5, subd. (b)). The court imposed a prison term of four years, consisting of the two year midterm on the count 1 offense, doubled pursuant to the three strikes law ( 667, subd. (e)(1), 1170.12, subd. (c)(1)). The court stayed execution of sentence on counts 2 and 3 pursuant to section 654. The court also stayed execution of sentence on the prior prison term enhancements. On appeal, appellant contends the trial court erred in ruling, on appellants motion for a new trial, that no prejudicial juror misconduct occurred and that therefore appellant was not entitled to a new trial. Court affirm.

It was alleged in a juvenile wardship petition filed May 11, 2007, that appellant C.S., a minor, committed a violation of Penal Code section 415.5, subdivision (a) (section 415.5(a)) (disturbing the peace by fighting on school grounds), and following the jurisdiction hearing on August 27, 2007, the court found the allegation true. On November 6, 2007, following the disposition hearing, the court re-adjudged appellant a ward of the court,[1]continued appellant on probation and declared appellants maximum period of physical confinement to be five years three months, based on the instant offense and offenses adjudicated in previous wardship proceedings.
On appeal, appellant contends (1) her adjudication was not supported by substantial evidence and therefore must be reversed; (2) the court erred in setting a maximum period of physical confinement because appellant was placed on probation and not removed from the custody of her parents; and (3) a probation condition imposed by the court relating to the use of alcoholic beverages and illegal or intoxicating substances was unconstitutionally vague and overbroad. Court reverse.

Appellant, J.M., appeals from the juvenile courts order pursuant to Welfare and Institutions Code section 366.26 creating legal guardianship. Legal guardianship was ordered for three of appellants five children. Appellant contends that the social services agency (agency) failed to notify all Indian tribes pursuant to the Indian Child Welfare Act (25 U.S.C. 1901, et seq.; ICWA). The issue of proper notice pertains only to K.A., M.A., and L.A. Court affirm the judgment.

E.V. (Mother) appeals from the juvenile courts refusal to grant a hearing on her Welfare and Institutions Code[1]section 388 petition for modification of its decision to terminate her parental rights of her daughter S.O. and from the courts failure to apply the sibling adoption exception under section 366.26, subdivision (c)(1)(B)(v). Court conclude the juvenile court did not abuse its discretion in declining to grant a hearing on the section 388 petition and that Mother failed meet her burden of establishing the sibling adoption exception. Accordingly, Court affirm the disposition.

The only issue in this appeal is whether an order vacating an arbitration award pursuant to Business and Professions Code section 6200, et seq. is a final appealable order that must be promptly appealed. Because we find that it is, Court dismiss the instant appeal. Court deny respondents motion for sanctions.

This case presents the question whether a commercial lease provision purporting to calculate the tenants share of the real estate taxes in a manner requiring the tenant to pay over three times the assessed amount of real estate taxes can be viewed as so clear and unambiguous that the tenant is precluded from introducing any evidence demonstrating the parties may have intended a different result.
Court conclude the answer is no, and reverse the trial courts decision sustaining the landlords demurrers without leave to amend. We also conclude the trial court erred in granting summary judgment for the landlord on tenants remaining cause of action for reformation. In moving for summary judgment, the landlord attempted to establish it was a bona fide purchaser (BFP) of the shopping center without notice of an alleged error in a number used to calculate the tenants share of real estate taxes. But the tenants estoppel certificate disclosed the tenant and landlord had not been using the disputed calculation to determine the tenants share of real estate taxes, creating a triable issue of fact whether the landlord had a duty of inquiry which, if fulfilled, would have led to the landlords discovery of the alleged mistake. Accordingly, Court also reverse the trial courts summary judgment ruling as to the tenants reformation claim.

Defendants Arnold A. McMahon (Arnold) and Elizabeth J. McMahon (Elizabeth) (collectively, the McMahons) failed to appear for trial.[1] They appeal from the resulting judgment for plaintiff Palacio Del Mar Homeowners Association, Inc. (Palacio). They contend they lacked notice of trial. They further contend Palacio was not entitled to recover compensatory or punitive damages on its fraudulent transfer cause of action.
The McMahons had adequate notice of trial and Palacio was entitled to recover compensatory damages, if any. But we reverse because those compensatory damages cannot include attorney fees that Palacio incurred prosecuting this action against the McMahons or against those who were joint tortfeasors with the McMahons. Furthermore, Palacio did not offer substantial evidence of the McMahons ability to pay the punitive damage award. Court remand for a retrial on compensatory damages.

Plaintiff Korea Export Insurance Corporation (KEIC) underwrites bills of exchange purchased by Korean banks from Korean exporters to finance their shipments of goods to other countries, including the United States. When defendant Audiobahn, Inc., failed to satisfy bills of exchange it had accepted for a shipment of electronic parts, KEIC paid the payee bank and asserted subrogation rights against Audiobahn. In a bench trial, the court found the payee bank to be a holder in due course of the bills of exchange, and that KEIC stood in the banks shoes as subrogee. The court nonetheless entered judgment for Audiobahn, holding a notice provision in an assignment agreement between the shipper and KEIC imposed a condition subsequent upon KEICs status as a holder in due course, and KEIC failed to satisfy this condition. Court conclude the trial court erred in imposing the condition subsequent. The assignment agreement did not purport to affect KEICs right to enforce the bills of exchange, and nothing in the agreement could reasonably be read as imposing a condition subsequent. Accordingly, Court reverse, and remand with instructions that the trial court enter judgment for KEIC.

This is the third appeal related to Nikko Blunts lawsuit, which alleged that she suffered an injury from a machine when undergoing physical therapy for her right knee. The first appeal concerned the lower courts refusal to vacate a default judgment obtained by Blunt against Rehabilicare, Inc. (Rehabilicare). We reversed, concluding that Blunt had never filed a valid pleading against Rehabilicare. (Blunt v. Rehabilicare, Inc. (Blunt I), A094346 and A095326 (filed May 10, 2002).) In the second appeal, we affirmed the lower courts order denying Blunts request to set aside the dismissal order involving defendants other than Rehabilicare. (Blunt v. Rehabilicare, Inc. (Blunt II), A102481 (filed March 24, 2004).) Now, more than six years after filing our decision in Blunt I and more than nine years after Blunt filed her original pleading in this lawsuit, Blunt is appealing from the lower courts order dismissing her lawsuit against Rehabilicare for failure to prosecute the action within five years as mandated by Code of Civil Procedure sections 583.310 and 583.360. Court agree with the lower courts ruling and affirm the judgment.

The trial court awarded Christina Geraci a community property interest in certain real property to which her former husband, Scott Lawton, held record title at the time of trial. Lawton appeals, contending that the trial court erred in (1) finding that the 1993 transaction whereby Geraci and Lawton conveyed their community property interest in the property to Lawtons mother raised a presumption of undue influence, and (2) requiring the parties to forgo live direct testimony under a local family law rule later declared invalid by the California Supreme Court. Court hold that the trial court properly applied the presumption of undue influence and that Lawton has forfeited his objection to the trial procedures followed by failing to object in the trial court. Court therefore affirm the judgment.

Appellants Catherine Louise Briggs and Scott Briggs filed a petition for a writ of mandate (Code Civ. Proc., 1085) to direct a private arbitrator to lift a stay he had imposed in the arbitration of a dispute concerning an uninsured motorist policy issued by GEICO General Insurance Company (GEICO). The trial court denied the petition, finding that the arbitrator did not err in issuing a stay. Court conclude that the trial court lacked the authority to review a discretionary, prehearing order of an arbitrator, and Court affirm the judgment on that basis.