CA Unpub Decisions

Douglas M. (father) and Jennifer M. (mother) appeal from an order terminating their parental rights to Angelina M. pursuant to section 366.26 of the Welfare and Institutions Code. They contend there is insufficient evidence to support the juvenile courts finding that Angelina is adoptable. Court affirm.

In 1970 the California Legislature declared a statewide interest in uniform building codes and enacted legislation expressing an intent to generally preempt the field of building standards. (ABS Institute v. City of Lancaster (1994) 24 Cal.App.4th 285 (ABS Institute); Danville Fire Protection Dist. v. Duffel Financial & Constr. Co. (1976) 58 Cal.App.3d 241 (Danville Fire); Baum Electric Co. v. City of Huntington Beach (1973) 33 Cal.App.3d 573.) The Legislature nevertheless allowed local authorities to adopt ordinances which vary from the uniform codes in certain limited circumstances. Health and Safety Code section 17958.5 states in pertinent part that a city or county may make such changes or modifications in the requirements contained in the provisions published in the California Building Standards Code and the other regulations adopted pursuant to Section 17922 as it determines, pursuant to the provisions of Section 17958.7, are reasonably necessary because of local climatic, geological, or topographical conditions. Health and Safety Code section 17958.7 states in pertinent part that the governing body of a city or county, before making any modifications or changes pursuant to Section 17958.5, shall make an express finding that such modifications or changes are reasonably necessary because of local climatic, geological or topographical conditions. The section further states that [n]o modification or change shall become effective or operative for any purpose until the finding and the modification or change have been filed with the California Building Standards Commission. (Health & Saf. Code, 17958.7.). The judgment is affirmed.

This appeal arises out of a contractual dispute and the resulting litigation. In 1996, appellant City of Chowchilla (Chowchilla) contracted with Carr Business Enterprises (Carr) to do some improvement work on city streets and at the municipal airport. Respondent Insurance Company of the West (West) supplied the performance bond for Carr on the construction projects. A series of problems arose which delayed the work, which was not finished within the contractual time frame. Carr incurred additional costs, and Chowchilla refused payment. By stipulation of the parties, the case was submitted to a referee under Code of Civil Procedure[1]section 638. The referee was asked to try all issues of fact and law raised by the pleadings. After a lengthy trial, the referee issued a detailed statement of decision largely finding in favor of Carr and West. The referee awarded a total amount of $613,427.07 in damages.
Pursuant to the stipulated agreement filed in this court on October 10, 2007, between West and Chowchilla, the order following hearing of Chowchillas motion to tax costs is modified to award a total of $3,561 in costs to West.
Since no other issues remain, the balance of this appeal is dismissed as moot.

On November 8, 2006, appellant C.X., a minor, admitted an allegation that he committed first degree burglary (Pen. Code, 459, 460, subd. (a)). At the disposition hearing on November 28, the court adjudged appellant a ward of the court; ordered him committed to the Elkhorn Correctional Facility boot camp program for a period not to exceed 365 days; and directed the probation officer to determine the amount of restitution.
On appeal, appellant contends (1) the court abused its discretion in ordering him to pay $4,200 in restitution and (2) the court erred in admitting into evidence at the restitution hearing hearsay statements of one of the victims. Court affirm.

The trial court entered a judgment naming Rubalee Bookout the equitable owner of a 100 percent fee simple interest in real property in the co op community of Laguna Woods. Ove Nielsen appeals, arguing there was insufficient evidence supporting the trial courts judgment that he did not have a 50 percent interest in the real property as a joint tenant. Court affirm.

A modification decision.

Defendant Miguel Angel Romero appeals from a March 26, 2007 order denying his petition for a writ of error coram nobis. Defendant was sentenced to four years in state prison in 2001 after pleading no contest to possession of heroin for sale (Health & Saf. Code, 11351). After the disposition in state court, defendant pleaded guilty in federal court to one count of conspiracy to distribute heroin (21 U.S.C. 846) and was sentenced to 70 months in federal prison in early 2004. The state and federal convictions arose out of the same underlying conduct by defendant. The order denying the petition for writ of error coram nobis is affirmed.

In case No. CC503038, defendant Ryan McNiel[1] was convicted by no contest plea of two counts of receiving a stolen motor vehicle with a specified prior conviction (Pen. Code, 496d, 666.5)[2] and one count of receiving stolen property ( 496, subd. (a)). Defendant also admitted having suffered a prior strike ( 667, subds. (b)-(i), 1170.12) and having served two prior prison terms ( 667.5, subd. (b)). In case No. CC504606, defendant was convicted by no contest plea of second degree burglary ( 459, 460, subd. (b)) and he admitted the same prior strike and prior prison terms. After striking the two prison priors, the trial court sentenced defendant to seven years four months in state prison on these two cases and, pursuant to section 669, imposed a consecutive term of one year eight months for an uncompleted sentence that had been imposed in an earlier Alameda County case. (People v. McNiel (Super. Ct. Alameda County, 2006, No. H39969).)
The sole issue in this appeal is whether the Santa Clara County Superior Court in this case properly included in defendants sentence a one-year term for the prison prior previously imposed in the Alameda County case even though the Santa Clara County Superior Court struck the same prison prior in the case before it. As Court find that the Santa Clara County Superior Court properly imposed the one-year term for the prison prior, Court affirm the judgment.

Francis David Gitzen, the defendant herein, pleaded guilty to felony drunk driving under Vehicle Code section 23152, subdivision (a), following the trial courts denial of his motion to suppress evidence (Pen. Code, 1538.5). The trial court placed defendant on probation and ordered him to serve a year in jail. Defendant contends on appeal that the judgment must be reversed because his conviction was obtained in violation of the Fourth Amendment to the United States Constitution. Court disagree and will affirm the judgment.

Defendant Albert Hernandez pleaded no contest to one felony count of possession for sale of phencyclidine (PCP) (Health & Saf. Code, 11378.5). He also pleaded guilty to one misdemeanor count of using or being under the influence of PCP (Health & Saf. Code, 11550, subd. (a)). The trial court placed defendant on probation on the condition that he serve a one-year county jail term and imposed a prison sentence of three years, with execution of sentence suspended. Defendant filed a timely notice of appeal, and we appointed counsel to represent him in this court. Appointed counsel has filed an opening brief that states the case and facts but raises no issue. We notified defendant of his right to submit written argument in his own behalf within 30 days. The period has elapsed and we have received no response from defendant. We have reviewed the entire record pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106. Based on our review, we have concluded that there is no arguable issue on appeal. Following the California Supreme Courts direction in People v. Kelly, supra, 40 Cal.4th at page 110, Court provide a brief description of the . . . procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed.

Liberty Union High School District (the District) appeals from a judgment in favor of Tricon Construction, Inc. (Tricon) for damages awarded to Tricon due to the Districts breach of a contract to build a swimming pool. The District argues that an erroneous jury instruction foreclosed the jurys consideration of its affirmative defenses based on avoidable consequences and mitigation of damages. The District also contends the trial court incorrectly calculated damages for weather-related delays, and erroneously awarded statutory penalties, interest, and attorney and expert fees. Court vacate the penalties, interest, and attorney fees awarded pursuant to Public Contract Code[1]sections 7101 and 20104.50 and the expert fees awarded pursuant to Code of Civil Procedure section 998. Court otherwise affirm the judgment.

This appeal concerns the ability of an employer to recoup workers compensation benefits paid or to be paid to an employee injured by a third party. The Labor Code[1] provides that the employer can seek reimbursement of benefits by either filing a direct action against the third party, joining or intervening in the employees lawsuit against the third party, or enforcing a first lien against any judgment or settlement recovered by the employee in a lawsuit. ( 3852, 3853, 3856, subd. (b).)
Plaintiff Hartford Accident & Indemnity Company (Hartford),[2] an insurer of workers compensation benefits, chose to commence a direct action against Pacific Gas & Electric Company (PG&E), to recover workers compensation benefits paid or to be paid by Hartfords insured to its employee, Lisa Nash, who was injured in an explosion allegedly caused by PG&E. The trial court dismissed Hartfords action on the ground that Nashs settlement and dismissal of her lawsuit against PG&E barred Hartfords direct suit. We agree with Hartford that its right to pursue a direct action against PG&E was not precluded by the settlement and dismissal of Nashs lawsuit against PG&E. Accordingly, we reverse the judgment in favor of PG&E and remand for further proceedings.

Defendant and cross-complainant Helen Lynch appeals the trial courts entry of summary judgment in favor of respondents, the law firm of Murphy, Pearson, Bradley & Feeney (MPBF) and Mark Perelman (Perelman), a partner with MPBF, on her cross complaint against them alleging professional negligence, breach of fiduciary duty, equitable indemnity and contribution. Court affirm.

A jury convicted defendant Marques Whitaker of attempted murder with enhancements and two firearms offenses. He contends that the trial court abused its discretion by admitting evidence of a prior offense and certain testimony of defendants mother. Both items of evidence were admitted on the issue of credibility. Court find no prejudicial error and affirm.