CA Unpub Decisions

This litigation arises from the parties construction contract involving the renovation of the Berkeley Central Library. In the underlying litigation, Arntz Builders (Arntz) filed a complaint against the City of Berkeley (City) for breach of contract. A court trial ensued on whether Arntz complied with any applicable Government Code claim requirements. The trial court ruled that Arntz was required to present a Government Code section 910 claim in addition to complying with any contract claims procedures, and that it had failed to present a timely section 910 claim. Arntz appealed. Today, we reverse the trial courts judgment (Arntz Builders v. City of Berkeley (August 25, 2008, A116078) ___ Cal.App.4th ___, ___ [p. 28] (Arntz I)), concluding that the contracts claims procedure exclusively governed the claims to which it applied and that it did not require Arntz to file a statutory claim for disputed amounts exceeding $375,000 (Arntz Builders v. City of Berkeley (August 25, 2008, A116078) pp. 17, 27-28 [nonpub. part of partial pub. opn.].) Accordingly, in this related appeal, Court reverse the trial courts award of attorney fees. The judgment is reversed.

Matthew Taylor (Taylor) appeals from a judgment entered on consolidated actions ordering him to remove an encroaching garage and fence from his neighbors property and to pay damages and costs. Taylor challenges the default judgment entered against him in his neighbors trespass and nuisance action (case No. HG05230854), arguing primarily that the damages awarded are in excess of that demanded in the complaint and that surveyors fees are not recoverable as costs. Taylor challenges the summary judgment entered against his own quiet title claim (case No. HG06261686), arguing that triable issues of material fact preclude summary judgment. Taylor also argues that his neighbor lacked standing and that indispensable parties were not joined. Court reverse the trial courts award of damages and surveyors costs, but otherwise affirm the judgment.

A modification decision.

Appellants R.R. and N.R. were declared dependents of the juvenile court and placed with their maternal grandmother in Russia after their mother disappeared and their father, respondent H.R., was charged with her murder. (Welf. & Inst. Code, 300.) After learning that the minors might be returning to the United States to testify in fathers criminal case under the auspices of the Treaty with Russia on Mutual Legal Assistance in Criminal Matters (the Treaty), the juvenile court ordered that they submit to evaluations upon their return and that they remain in the United States until further order. The minors appeal from these orders, arguing that the juvenile court did not have the power to order them to appear in the dependency action while they were traveling under the safe passage provisions of the Treaty. This challenge has been rendered moot by subsequent events. Although R.R. traveled to the United States to testify in fathers case, he returned to Russia without making an appearance in juvenile court. The completion of R.R.s travels under the Treaty and the minors presence in Russia make it impossible for us to fashion an effective remedy. Moreover, the effective dates of the challenged orders have passed, and fathers subsequent conviction for murder makes it extremely unlikely the minors will return to this country under the provisions of the Treaty. Court will dismiss the appeal.

Cross-complainants and appellants Lucky United Properties Investments, Inc., and Chin Teh Shih (also known as Jessie Woo), as trustee for the Woo Family 2000 Trust (collectively, appellants), appeal from the trial courts order awarding attorney fees and costs to cross-defendant and respondent Albert Lee (Lee). Appellants contend the court abused its discretion in awarding Lee $25,500 in attorney fees for work related to his successful anti SLAPP (strategic lawsuit against public participation) motion. (Code Civ. Proc., 425.16.) Court disagree and affirm.

After the trial court terminated appellant Marcus Wade Smiths probation, it ordered into execution a previously imposed nine-year term of imprisonment that had been suspended while appellant was on probation. Appellant contends the trial court should have retained full sentencing discretion to reduce his sentence following termination of probation. We are compelled to reject appellants claim in light of People v. Howard (1997) 16 Cal.4th 1081, 1095 (Howard), in which our Supreme Court held that a court lacks authority at the pre commitment stage to reduce a previously imposed but suspended sentence upon terminating probation. Accordingly, Court affirm.

Brenda H. (mother) appeals from an order of the juvenile court terminating her parental rights with respect to her three-year-old son, Ricardo H. Mother contends that the court denied her due process because it failed sua sponte to address her need for a guardian ad litem after being presented with evidence of her incompetence. We affirm because mother forfeited her right to raise this issue on appeal, both by failing to raise the issue in the trial court and by failing to file a petition for an extraordinary writ. In all events, despite mothers undisputed mental deficiencies, the record does not contain evidence of incompetence that required inquiry by the court. Moreover, any possible error in this regard was plainly harmless.

Stephen Edward Jones appeals following his plea of no contest to a single count of grand theft. Counsel has briefed no issues and asks for our review of the record of the proceedings. (People v. Wende (1979) 25 Cal.3d 436.) Jones has not filed a supplemental brief. Court have reviewed the record and affirm.

Appellant Juan Carlos Gutierrez challenges his murder, robbery and attempted robbery convictions on the grounds the trial court committed numerous instructional errors, violated due process by imposing upper and consecutive terms on the basis of facts not found by the jury or admitted by him, and improperly imposed a gang enhancement. We conclude the trial court made several errors in relation to the aiding and abetting and accomplice instructions. However, the errors were harmless under the circumstances. The court also erred harmlessly by failing to instruct the jury upon the requirements for finding that a principal used or discharged a firearm for purposes of a Penal Code section 12022.53 enhancement. Moreover, the imposition of upper and consecutive terms did not violate due process. Finally, the trial court improperly enhanced appellants sentence under Penal Code section 186.22. The judgment is affirmed.

Uchenna Jenkins appeals from the judgment entered after the trial court granted summary judgment in favor of 130 Woodruff Apartment Company and Santa Fe Management, Inc. (collectively Woodruff) in her wrongful death action arising from the electrocution of her daughter. Jenkins contends the trial court erred in ruling, as a matter of law, Woodruff had no duty to replace unprotected electrical outlets with protected outlets in the bathroom of Jenkinss apartment. Court reverse.

On October 19, 2004, a seven-count information was filed, charging appellant Wilbert Floyd with the robbery of Glenn Delaney on July 4, 2004 (Pen. Code, 211; count 1), the robbery of Antonio Harris, Anthony Edmonds, and Neal LeFlore on July 5, 2004 (Pen. Code, 211; counts 2 through 4), and the attempted robbery of Brandon McFadden, James McFadden, and Angela McFadden on August 16, 2004 (Pen. Code, 211, 664; counts 5 through 7).[1] The information also alleged under each of the counts that appellant personally used a firearm in the offense ( 12022.53, subd. (b)), and that appellant had suffered a prior conviction for a felony ( 667, subd. (a)(1)); 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Appellant pleaded not guilty. On October 20, 2005, a jury found appellant guilty on all counts, and found the gun use allegations to be true. After appellant admitted the prior conviction allegations, the trial court sentenced him to a total term of 31 years in prison.

Plaintiff Alfonso Rembert appeals from the judgment of dismissal following the trial courts sustaining without leave to amend the demurrer filed by defendant Cedars-Sinai Medical Center (Cedars). Court affirm.

Miguel Vasquez appeals from the judgment imposed after a jury convicted him of three counts of attempted willful, deliberate and premeditated murder (Pen. Code, 664/187; undesignated section references are to that code), two counts of shooting at an occupied motor vehicle ( 246), and one count of battery ( 242), and found that in the attempted murders he personally used and discharged a firearm ( 12022.53, subds. (b), (c)), as did a principal in the offenses (id., subd. (e)(1)), and that appellant committed the five felony counts for the benefit and in furtherance of a criminal street gang ( 186.22, subd. (b)(1)). Respondent agrees with appellants contentions about the DNA penalty, section 654, and all but one of the enhancement findings that were not alleged in the information. Court agree with appellants position on those matters, but not with his other contentions. Court accordingly modify the judgment, and affirm it as modified.

The Los Angeles County Sheriffs Department revised its Manual of Policy and Procedures to include this language: . . . prior to being interviewed by assigned Departmental investigators. . . . Members [of the Department] who were either involved in or witnessed [a deputy-involved shooting] may consult individually with legal counsel or labor representatives . . . [but] . . . shall not consult with legal counsel and or labor representatives collectively or in groups (e.g., two or more members consulting at the same time with the same legal counsel/labor representative). (Emphasis added.) The Association for Los Angeles Deputy Sheriffs (ALADS) filed the current action to enjoin the Department from implementing its anti-huddling policy revision. The trial court denied ALADSs motion for a preliminary injunction. The issue before us on this appeal is whether the trial court abused its discretion by denying ALADSs motion for a preliminary injunction. Court affirm the trial courts order.