CA Unpub Decisions

Tyrone Thompson, defendant/appellant (Thompson), was charged in an information filed by the District Attorney of Los Angeles County for allegedly having committed the following crimes: two counts of first degree burglary pursuant to Penal Code[1] section 459; two counts of first degree residential robbery under section 211; three counts of forcible oral copulation pursuant to section 288a, subdivision (c)(2); one count of forcible rape under section 261, subdivision (a)(2). Special allegations were alleged pursuant to section 12022, subdivision (b)(1) contending that Thompson personally used a knife during the commission of the robberies; personally used a deadly weapon during the course of the rape; and used a deadly weapon while in the commission of a burglary involving more than one victim, under section 667.61, subdivisions (a), (b), (d), and (e). The information also contained allegations Thompson had served four prior prison terms pursuant to section 667.5, subdivision (b). Thompson entered a plea of not guilty, denied all special allegations and demanded a jury trial.

Johnny Arreola and Julio Sandoval appeal from their convictions of attempted murder, kidnapping, rape, and forcible oral copulation. Court reject their contentions that the jury was improperly instructed on consent to the sex crimes and that there was insufficient evidence to support a finding that the crimes were committed to benefit a street gang. Court reverse the consecutive sentence imposed on the kidnapping count and the determinate 10 year term imposed for the gang enhancement, however, and will order the abstract of judgment modified accordingly to reflect these changes.

Alan Paul Wurtzel (plaintiff) filed a lawsuit against Jason Rodin, Les Rodin, Malkie Rodin, Ruchama Rodin, and The Rodin Company (collectively referred to as the defendants, and individually referred to by their first names), alleging intentional fraud, negligence, and negligent concealment. After a jury trial, judgment for plaintiff in the amount of $130,000 was entered. Plaintiff was subsequently awarded $165,604.25 in attorney fees and costs of $36,217.98. Defendants appealed from the judgment in the underlying case (case No. B195659), and later filed two separate appeals from the award of attorney fees and costs (case Nos. B197744 & B200080). The latter two appeals were consolidated under case number B197744. All appeals were ultimately consolidated under case Number B195659. Court conclude plaintiff failed to present evidence that defendants breached a duty owed to him, and judgment should have been entered for defendants. Court reverse the judgment in favor of plaintiff and vacate the orders awarding him attorney fees and costs.

Plaintiff Gary Hile appeals from a postjudgment order denying his motion for an award of attorney fees against defendant Clippinger Chevrolet, in an action for breach of contract, rescission, and revocation of acceptance. Plaintiff is entitled to recover those fees by virtue of Civil Code section 1717. (Undesignated section references are to that code.) Court therefore reverse and remand for assessment and award of reasonable attorney fees.

An attorney, Christopher Appleton, sued his former client, Pin Lian Tu, to recover for legal services he rendered in a prior civil action in which Appleton successfully defended Tu. Following a bench trial, the court awarded Attorney Appleton $57,562.87 under a written retainer agreement entitling the attorney to hourly fees for his legal representation. Tu appeals, and represents herself on appeal. Court affirm the judgment.

A jury awarded damages to plaintiff David Eby (plaintiff) for injuries he sustained in an automobile collision with defendant Philip DeJong (defendant), but the workers compensation lien of plaintiffs employer, the City of Ukiah (the City), exceeded the amount of the judgment on the verdict. Plaintiff therefore sought priority payment of his attorney fees and litigation expenses under a statutory provision requiring equitable apportionment when the employees efforts alone result in a third-party judgment benefitting the employer. The trial court denied plaintiffs request, relying on law governing the allocation of attorney fees and costs when the recovery is produced through the joint efforts of the separate attorneys of the employee and employer. We reverse the trial courts order, concluding that substantial evidence does not support a finding that the Citys counsel actively participated in procuring the judgment. Accordingly, Court remand to the trial court for equitable apportionment of reasonable attorney fees and costs, to be paid first from the judgment. Court affirm the judgment and order denying the motion for new trial, from which plaintiff also appeals, as he has waived his claims of error in this regard.

Appellant Thomas W. Haner appeals from an order denying his request for recalculation of his maximum term of commitment and for unconditional release from his insanity commitment. Court conclude that the trial court did not have jurisdiction to issue the February 2, 1999, amended commitment order in this matter increasing defendants sentence and, therefore, must reinstate its original commitment order.

Douglass Borngeeser appeals from a judgment entered after the trial court revoked his probation. He contends the courts decision to revoke is not supported by substantial evidence. Court disagree and will affirm.

G.O., Sr., (Father) and L.S. (Mother), parents of G.O., age seven, X.O., age four, and J.O., age two, appeal from the juvenile courts orders denying their petitions under Welfare and Institutions Code[1] section 388 (section 388 petition), terminating their parental rights and selecting adoption as the permanent plan for J.O. Father contends: (1) the juvenile court abused its discretion in denying his section 388 petition; (2) his due process rights were violated because he was not served with a copy of a caregiver information form submitted by J.O.s caregivers; (3) there was insufficient evidence supporting the finding that J.O. was adoptable; (4) the juvenile court erred in terminating parental rights to J.O. because statutory exceptions to adoption applied; and (5) minors counsel provided ineffective assistance of counsel to J.O. Mother joins in Fathers arguments and also contends the trial court erred in denying her request to have separate minors counsel appointed for the children. Court reject all of the contentions and affirm the juvenile courts orders.

A dependency involving four children, two boys and two girls, was transferred from Orange County to Alameda County. In time, matters had improved to the point that the Alameda County Juvenile Court dismissed the dependency as to the two girls, giving custody to their mother and denying any visitation to the father, M.V. (father). Father, who had objected to the transfer of the dependency, appealed. This court affirmed. During the pendency of that appeal, the juvenile court dismissed the dependency as to the two boys, once more giving custody to their mother and denying any visitation to the father. Father again appeals, contending that substantial evidence does not support the custody and visitation rulings. Court reject these contentions, and Court affirm.

Allen Luckett appeals from the judgment entered following a jury trial in which he was convicted of two counts of second degree robbery, counts 1 and 2 (Pen. Code, 211), with the findings as to both counts that he personally used a firearm, a handgun, within the meaning of Penal Code section 12022.53, subdivision (b) and as to count 1, personally and intentionally discharged a firearm, a handgun, within the meaning of Penal Code section 12022.53, subdivision (c). Appellant was additionally convicted of shooting at an occupied motor vehicle, count 3 (Pen. Code, 246), and of assault with a firearm, count 4 (Pen. Code, 245, subd. (a)(2)), with the finding that during the commission of this offense he personally used a firearm, a handgun, within the meaning of Penal Code section 12022.5, subdivision (a)(1). Following a court trial, he was found to have suffered six prior convictions of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 1170.12, subds. (a) through (d) and 667, subds. (b) through (i)), two prior convictions of a serious felony within the meaning of Penal Code section 667, subdivision (a)(1), and to have served seven prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.

Defendant Dimetirous Campbell appeals from a judgment entered after the jury found him guilty of count 1, robbery (Pen. Code, 211);[1]count 2, false imprisonment by violence ( 236); count 3, assault by means likely to produce great bodily injury ( 245, subd. (a)(1)); and count 4, commercial burglary ( 459). The trial court found true the allegations that as to counts 1 through 4, defendant suffered two prior convictions within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d), and two prior serious convictions within the meaning of section 667, subdivision (a)(1). The trial court sentenced defendant to an indeterminate term of 35 years to life, consisting of a term of 25 years to life in count 1, plus two 5-year terms for the prior serious felony convictions. The sentences in counts 2, 3, and 4 were stayed pursuant to section 654.

Plaintiffs Ellsworth Jackson and Scooter Jackson, Inc., doing business as Jackson Limousine Service, a California corporation (Jackson), appeal from the judgment entered following an order granting the motion of defendant National Interstate Insurance Company (National) for judgment on the pleadings. Jackson contends that the trial court improperly relied on extrinsic evidence in granting the motion and abused its discretion in denying Jacksons request for leave to amend. Court affirm.

The trial court revoked probation and imposed appellant Kenneth L. Leachs previously suspended state prison sentence. On appeal, he contends that (1) there was insufficient evidence that he violated probation, and (2) the court should not have increased the amount of his restitution and parole revocation restitution fines when it revoked probation. Court find merit only in the second contention. Court order the appropriate modification regarding the fines and otherwise affirm.