CA Unpub Decisions

Donald C. Gallagher aka Walter Clarence Nimo (hereinafter Gallagher) moved to set aside a default judgment entered against him and in favor of Carl and Beverly Karish. The trial court granted the motion to vacate and set aside the default judgment, conditioned upon proof of Gallaghers payment of $8,000 in attorney fees and costs. Gallagher appeals, arguing that the court abused its discretion when it conditioned relief on his payment to the Karishes. Court affirm.

Appellant Murray S. appeals from the orders made under Welfare and Institutions Code sections 300 and 361 asserting dependency court jurisdiction over his daughter, M.S. (born in 2003), and removing M.S. from Murrays custody. Murray contends the evidence was insufficient to sustain the section 300 petition counts regarding him, the order sustaining the petition as to either M.S.s mother or him, and the courts dispositional order requiring him to complete a sex abuse counseling program. Court disagree and affirm.

The proprietor of a small business sued a commercial printer, several of its employees, its attorneys, and a subcontractor, attempting to recoup the $63,000 discount he was forced to accept under a contract for his services. In a series of orders, the trial court sustained demurrers without leave to amend to most of the causes of action alleged in the plaintiffs complaints and ultimately dismissed all but one defendant from the action. The plaintiff dismissed his action against the sole remaining defendant and a week later filed a notice of appeal challenging the earlier dismissals. Court conclude the appeal from the first judgment of dismissal was untimely and thus this court lacks jurisdiction to entertain this appeal. Court affirm a second judgment of dismissal.

Father, T.D., appeals from the juvenile courts disposition order on the ground that insufficient evidence supported the courts order removing his son from his physical custody. Father also challenges the sufficiency of the evidence to support the courts issuance of a restraining order October 24, 2007, one month after the entry of the disposition order. Respondent contends the appeal should be dismissed, arguing that the notice of appeal was inadequate to establish appellate jurisdiction, and that the appeal from the restraining order is moot. Court find the notice of appeal adequate and consider the sufficiency of the evidence to support the custody order. However, Court agree with respondent that the appeal from the restraining order is moot, and dismiss the appeal as to that order.

Appellant Roberto Antonio Carranza challenges the trial courts sentencing choice, viz., the three-year middle term of imprisonment under Penal Code section 245, subdivision (a)(1). He contends that under the 2007 amendments to section 1170, subdivision (b), the trial court was required to choose the low term of two years, unless it found that factors in aggravation outweighed factors in mitigation. Further, he contends that the court abused its discretion in rejecting the mitigating factors he established, arguing that the court should have found that they outweighed any aggravating factors. Court affirm the judgment.

D.H., father of S.H. and Z.H., appeals from the juvenile court order terminating its jurisdiction and awarding physical custody of the boys to their mother, J.H. and visitation to D.H. (Welf. & Inst. Code, 364). Court affirm the order.

A jury convicted defendant Victor Frank Salazar of a single count of possession of methamphetamine and heroin while confined in a penal institution, and two counts of simple possession involving these same drugs. (Pen. Code, 4573.6; Health & Saf. Code, 11377, subd. (a), 11350, subd. (a).) Sentenced to an unstayed term of six years, defendant appeals. He contends the trial court erred by failing to sanitize impeachment convictions; by failing to rule on the number and placement of security personnel; by failing to give CALCRIM No. 225 (use of circumstantial evidence); and by imposing a drug program fee. He also claims his two convictions for simple possession are improper multiple convictions. Court shall strike these two simple possession convictions and the drug program and lab fees, but otherwise affirm.

On August 18, 2004, the People filed a complaint against defendant Timothy Dale Dufore alleging two counts: attempted murder (count 1 - Pen. Code, 664/187, subd. (a))[1]and assault with a firearm upon a peace officer (count 2 - 245, subd. (d)(1)). The complaint further alleged as to both counts that defendant intentionally and personally discharged a firearm during the commission of the offense ( 12022.53, subd. (c)), and as to count 2 that defendant used a firearm, a shotgun ( 12022.5, subd. (a)). Defendant appeals, contending that the imposition of the upper term violated his constitutional rights to a jury trial, proof beyond a reasonable doubt, and due process. Court affirm.

Appellant, father of the minor, appeals from the juvenile courts orders denying his request for modification and terminating parental rights. (Welf. & Inst. Code, 366.26, 388, 395.) Appellant contends the juvenile court erred by denying his modification request and by failing to find an exception to adoption. Court affirm.

It is well settled that material misstatements or concealment of material facts in an application for insurance, even if unintentional, entitle an insurer to rescind the insurance policy. (Mitchell v. United Nat. Ins. Co. (2005) 127 Cal.App.4th 457, 468-469(Mitchell); Ins. Code, 331, 359.) The insurer must prove that the insured made a material "false representation" in the application. A representation is false "when the facts fail to correspond with its assertions or stipulations." ( 358.) This issue often arises in the context of the manner in which the insured answered a question on the application form.
Because of our conclusions about the inadequacy of the answers on the application, we need not reach the additional coverage questions that are argued by the parties, since the policy was void at the outset and subject to rescission. Court reverse with directions to issue declaratory relief accordingly.

Robert Emmett Blevins waived trial by jury and after a bench trial, the court found him to be a sexually violent predator (SVP) within the provisions of the newly amended Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, 6600 et seq.). Based on that finding, Blevins was recommitted to the State Department of Mental Health (DMH) for an indeterminate term for treatment and confinement. On appeal, Blevins contends his commitment violates the plain language of the SVPA and is unconstitutional because he was not under any "defined commitment" when the court granted the People's amended petition, found him to be an SVP and committed him to an indeterminate term. He further contends the trial court violated his due process rights when, over his objection, it allowed two expert witnesses to rely on statements made in 1981, by his former girlfriend, that were contained in a police report prepared in connection with the rape of a 10 year old girl, in opining Blevins was a SVP. Court reject both contentions and affirm the judgment.

Following a contested hearing, the juvenile court sustained allegations of lewd acts on a child under the age of 14 accompanied by force or other coercion (Pen. Code, 288, subd. (b)(1) and lewd acts on a child under the age of 14 ( 288, subd. (a)) against L.J. (appellant). The court found that the offenses were felonies and that the maximum period of confinement was eight years. Appellant was granted probation but was detained at juvenile hall pending suitable placement.
Appellant contends the juvenile court erred in finding that he understood the wrongfulness of his conduct because that determination was based on improperly considered statements, and there is insufficient evidence to support the finding. Appellant contends his alleged acts were wrongly prosecuted as criminal conduct under Welfare and Institutions Code section 602, and that the proceedings should have been conducted under Welfare and Institutions Code section 601. He also contends that the trial court failed to conduct a competency hearing. And finally, he contends that there is insufficient evidence to support the true finding that appellant violated section 288, subdivisions (a) and (b)(1)). Court disagree and affirm.

A modification decision.

H.M. (father) appeals from the order made November 15, 2007, after a 12-month review hearing in which the dependency court terminated reunification services for N.M., born in 2000, V.M., born in 2001, S.M., born in 2003, and Sa.M., born in 2004 (the children). Reunification services as to the childrens mother were not terminated and she did not appeal. Father contends substantial evidence does not support the courts finding that reasonable services were provided by the Fresno County Department of Children and Family Services (the Department). Court hold the courts finding is supported by substantial evidence and reject the contention. Court affirm the order.